Explaining Secret Surveillance

Last week the government released a redacted copy of the application for a warrant to surveil Carter Page, a former Trump campaign aide who was monitored pursuant to the Foreign Intelligence Surveillance Act (FISA) starting in October 2016, after his tenure with the campaign ended. This surveillance has garnered significant political controversy, notably in a memo written by House Intelligence Committee Chairman Devin Nunes (R-Calif.). The memo alleged that the Department of Justice misled the court by hiding politically motivated funding of the so-called Steele dossier, which alleges coordination between Trump campaign officials and Russia, and was cited in the Page application. The Constitution Project at POGO criticized the Nunes memo when it came out for misrepresenting FISA and privacy risks related to the law. Now that we can directly read the warrant application at issue, we want to dive into more detail about how FISA works, whether any accusations about impropriety hold up, and what the biggest problems with FISA surveillance truly are.

How can intelligence agencies monitor an American’s private communications using FISA?

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The process for monitoring Americans’ private communications using FISA, the law governing foreign intelligence surveillance, can vary significantly. This is because there are two very different main components of this law. First, there is Title I of FISA (often called “traditional FISA”), which was passed in 1978. It requires that the government get a probable cause warrant from the FISA Court (this was the process used for monitoring Carter Page) based on suspicion that the target is an agent of a foreign power. The second main component of FISA surveillance is Section 702 (often called “warrantless FISA”), an incredibly broad surveillance system with practically no checks, which I’ll discuss more in a bit.

How hard is it to get a warrant to conduct traditional FISA surveillance on a U.S. person?

Pretty hard. In order to obtain a warrant authorizing surveillance under traditional FISA, the government needs to convince the FISA Court that there is probable cause, the highest standard of proof in U.S. law for investigative measures, that the target is an agent of a foreign power. The law defines an American as an agent of a foreign power if they:

1. Knowingly engage in clandestine intelligence activities on behalf of a foreign power,
2. Knowingly engage in sabotage or terrorism on behalf of a foreign power,
3. Knowingly enter the U.S. under a fraudulent identity on behalf of a foreign power, or
4. Knowingly aid or conspire with someone else (including a foreigner) in any of the above.

So, if the government wishes to pursue surveillance with traditional FISA, it must demonstrate probable cause to the court that the target has engaged in at least one of these actions, something that requires significant evidence, such as witness statements, financial transactions, or corroborating communications.

What is the FISA Court and how does it function?

The FISA Court was created as part of the Foreign Intelligence Surveillance Act to oversee all applications for surveillance conducted pursuant to the Act. The Court is composed of 11 judges, all of whom must be federal district court judges, who serve for a single seven year term. The Chief Justice of the Supreme Court is solely responsible for selecting FISA Court judges; Chief Justice John Roberts has picked all judges that currently serve on the FISA Court (the Carter Page application was approved by Judge Raymond Dearie, who was nominated to be a federal judge by Ronald Reagan). After the Edward Snowden disclosures revealed the existence of mass spy programs that the FISA Court authorized using extremely broad interpretations of law, the Court received significant criticism for aiding in the creation of “secret law.” The USA FREEDOM Act, which The Constitution Project and POGO advocated for and was passed in 2015, solved this problem by requiring public disclosure whenever the FISA Court makes novel or significant interpretations of law.

Does the government have to tell the FISA Court if the information it was using in its application is unreliable?

Yes. Like other courts, the FISA Court has rules of procedure to ensure proper and ethical conduct. One rule, Rule 13(a), states that “If the government discovers that a submission to the Court contained a misstatement or omission of material fact, the government, in writing, must immediately inform the Judge to whom the submission was made” of the misstatement or omission and provide a correction. It’s worth emphasizing “omission” because if the government hid material information (i.e. information that could impact the outcome of the court’s ruling) about how the Steele dossier was developed, as House Intelligence Committee Chairman Devin Nunesalleged and continues toargue even now, it would violate the FISA Court’s rules.

Did the government hide critical details about the Steele dossier, as Representative Nunes alleges?

No. The FISA application for surveillance of Carter Page uses the Steele dossier as a source of information, but clearly discloses that the dossier had been funded for political purposes. According to the application, even though the individual that hired Steele “never advised [Steele] as to the motivations behind the research into [Trump’s] ties to Russia,” it goes on to state that the person hiring dossier author Christopher Steele was “likely looking for information that could be used to discredit [Trump’s] campaign.”

In order words, the government’s application not only acknowledged the possibility that the Steele dossier was funded for political motives, but also asked the court to assume that the basis for funding Steele’s efforts was political. So, it was simply incorrect (and either highly incompetent or intentionally misleading) for the Nunes memo to claim that “material and relevant information was omitted” from the FISA application concerning the political motivation for the funding of the dossier.

Was there evidence other than the Steele dossier that Page could be an agent of Russian intelligence?

Yes. Although much of the application is redacted, it clearly relied on multiple sources of evidence. The application refers to information provided by Page during an interview, as well as his business dealings with the Russian natural gas company Gazprom. One unredacted section refers to the 2015 arrest and 2016 guilty plea of Evgeny Buryakov for being an unregistered foreign agent of Russia in the United States. A separate Justice Department complaint against Buryakov describes an unnamed U.S. person who Buryakov tried to recruit; the employment details of that U.S. person match with Page’s. And while it is unknown if the FBI cited it in its FISA application, Page wrote in a 2013 letter to the University of Pennsylvania Press that he had served as "an informal advisor to the staff of the Kremlin."

How will the controversy about the Carter Page application affect future oversight by the House Intelligence Committee?

Significantly. The Congressional intelligence committees are the key bodies designated to oversee and prevent abuse by the intelligence agencies. This naturally entails a somewhat adversarial relationship, but it also requires significant cooperation in reviewing and analyzing sensitive information. Chairman Nunes’ use of sensitive information to present false accusations of impropriety for partisan purposes has damaged the House Intelligence Committee’s ability to engage in this cooperation, and will make it much harder for the Committee and intelligence agencies to interact as needed in the future.

Additionally, the intelligence committees often act as a proxy for direct public oversight, acting on its behalf in examining classified information that cannot be aired publicly. This requires full public trust in the committees to provide thorough review and accurate critiques of agency activities. That trust has been lost. Chairman Nunes has cried wolf so many times (first with the debunked unmasking controversy that he coordinated with White House staff, and now with multiple iterations of alleged misconduct related to the Carter Page warrant) that it would be incredibly difficult for the House Intelligence Committee to stir proper public outrage if a real scandal occurred.

It will likely take years to restore necessary trust and make the House Intelligence Committee functional, but we should start the process as soon as possible with Chairman Nunes’ resignation from the Committee, as POGO has advocated for previously.

What about snooping under Section 702 of FISA? Are there any limitations on the government in conducting warrantless surveillance?

As detailed above, traditional FISA contains a fairly robust system of independent checks to make sure that surveillance only occurs when there is strong suspicion of wrongdoing. But FISA Section 702 is extremely different.

Section 702 allows warrantless surveillance—no suspicion of wrongdoing is required and the FISA Court has no role in approving the targets of the surveillance. These targets must be non-U.S. persons and outside of the United States, but any conversations these individuals (who numbered over 129,000 as of last year) have with Americans can be freely used by the government. And the NSA, CIA, and FBI can query databases for all communications Americans had that were swept up by Section 702 without a warrant (these queries are commonly called “backdoor searches” because the government is deliberately seeking out Americans’ private communications, but without a search warrant).

So, if the FBI wanted to read an American’s (such as Carter Page or Paul Manafort or Michael Flynn) emails with foreign nationals, Section 702 doesn’t require it to go to the FISA Court and show probable cause. Investigators can simply state a foreign intelligence or law enforcement purpose (which is only reviewed internally by the agency), and query for that person’s communications. All of an American’s texts and emails with Section 702 targets (it is highly likely many Russian intelligence operatives and government officials are Section 702 targets) are then available to the investigators, without any court review. We don’t know how often FBI queries return Americans’ communications, but last year the NSA and CIA conducted over 7,500 queries for Americans that returned communications content collected warrantlessly from Section 702. By comparison, this is almost twice the number of all wiretaps federal and state law enforcement used (3,813) to intercept private communications during the same time period.

Are the lawmakers alleging FISA abuse working to fix warrantless FISA?

Generally no. Chairman Nunes and other Members of Congress alleging FISA abuse actually voted to reauthorize and expand FISA Section 702 earlier this year, and rejected a bill (the USA Rights Act) that would have placed significant checks on how warrantless FISA can be used against Americans. Many of the most prominent backers of the Nunes memo opposed FISA reform and supported an expansion of Section 702.

What should Congress do?

There are plenty of problems with FISA, but the biggest one isn’t with the warrant process. It’s the fact that warrant requirements don’t exist more broadly for FISA surveillance that impacts Americans, an issue we have and will continue to advocate for reform on. And currently we lack basic information about how warrantless FISA surveillance operates. If Congress has problems with FISA, it should start by demanding answers about how many Americans are swept up in Section 702 surveillance, and how many “backdoor searches” the FBI conducts to deliberately seek out Americans’ communications without any suspicion or court approval.