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Case Name In re Orders & Records of this Court Related to the Surveillance of Carter Page [FISA Docket Misc. 18-01] NS-DC-0126
Docket / Court Misc. 18-01 ( FISC )
State/Territory District of Columbia
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Court
Case Summary
The Foreign Intelligence Surveillance Act (FISA) requires the government to obtain a warrant from the Foreign Intelligence Surveillance Court (FISC) before it may conduct any domestic electronic surveillance to acquire foreign intelligence information. The warrant applications are made ex parte and ... read more >
The Foreign Intelligence Surveillance Act (FISA) requires the government to obtain a warrant from the Foreign Intelligence Surveillance Court (FISC) before it may conduct any domestic electronic surveillance to acquire foreign intelligence information. The warrant applications are made ex parte and must include a sworn statement by a federal officer of the facts and circumstances relied upon to justify the government's belief that the target of surveillance is a foreign power or an agent of a foreign power. Once a FISC judge receives a warrant application, the judge can order approval of the surveillance only if the judge finds that there is probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power. Because the orders only authorize surveillance up to 90 days, the government must file an application for an extension that meets the same requirements as the initial warrant application and obtain a renewal order from the FISC for continued surveillance. For the Civil Rights Litigation Clearinghouse collection of FISA matters, see our special collection.

On January 29, 2018, during the Trump administration, the House Permanent Select Committee on Intelligence (HPSCI) voted to disclose a memorandum (the Nunes Memo) revealing existence of a FISA warrant for the electronic surveillance of Carter Page, who served as a onetime foreign policy advisor to the Trump Campaign until September 2016. The Nunes Memo was declassified by President Donald Trump on February 2, 2018. The Nunes Memo revealed that on October 21, 2016, the Department of Justice (DOJ) and the Federal Bureau of Investigations (FBI) sought and received a probable cause order from the FISC authorizing electronic surveillance on Carter Page. The Nunes Memo further disclosed that in addition to the initial warrant application, the government had received three renewal orders from the FISC.

On February 6, 2018, reporters Adam Goldman and Charlie Savage, along with the New York Times, filed a motion in the FISC for release of all court records, including opinions and application materials, in reference to the surveillance of Carter Page. The plaintiffs argued that even before the Nunes Memo was released, there had been public speculation about the surveillance of Carter Page due to national debates over potential abuses of the government's surveillance authority under FISA. These debates were exacerbated by the ongoing investigation by Special Counsel Robert Mueller into potential collusion between the Trump Campaign and Russia during the 2017 Presidential Election. Because the Nunes Memo was prepared solely by Republican members of the HPSCI and released over the strenuous objections of the Democratic members of that committee, there has been further intense debate over the validity of the Nunes Memo's depiction of the factual basis and motivation for surveillance of Carter Page. Given the public interest in assessing the accuracy of the Nunes Memo and knowing the actual basis for the surveillance orders, the Plaintiffs requested that the FISC direct the publication of its orders authorizing surveillance of Carter Page and the application materials upon which they were issued.

On February 14, 2018, the Plaintiffs filed a Supplemental Notice of the Public Release of Additional Declassified Information and Developments Further Supporting Publication of the Carter Page Surveillance Records (First Notice). On February 6, 2018, Republican Senators Chuck Grassley and Lindsey Graham, with the approval of the FBI, made public a less-redacted version of a criminal referral (the Grassley-Graham Memo) related to the Carter Page wiretapping applications, which contained additional facts about the applications that the executive branch has chosen to declassify. On February 9, 2018, President Trump had refused to declassify a memorandum (the Rebuttal Memo) prepared by Democratic members of the HPSCI; the Rebuttal Memo had been described as disputing certain claimed facts and characterizations of the application for the surveillance orders portrayed in the Nunes Memo. In light of these two subsequent developments, the plaintiffs urged the FISC to release all court orders and warrant application materials.

On March 27, 2018, the Plaintiffs filed a Second Supplemental Notice of the Public Release of Additional Information Further Supporting Publication of the Carter Page Surveillance Records (Second Notice). On February 24, 2018, Democrats on the HPSCI, following a classification review by the DOJ and FBI, had made additional public disclosures about the content of the judicial records regarding the surveillance of Carter Page. In light of these disclosures, the Plaintiffs argued that there was no proper need for "continued blanket secrecy of the judicial records concerning the Page surveillance."

As of December 2018, there has been no other activity in this matter that has been publicly disclosed. However, on March 7, 2018, the plaintiffs had filed suit against the DOJ under the Freedom of Information Act regarding the same matter as this case. On July 21, 2018, the government produced records it considered responsive and non-exempt to the suit. See N.Y. Times Co. v. United States DOJ, NS-NY-0024 in this Clearinghouse. On July 21, 2018, the DOJ produced redacted documents it considered responsive to the FOIA request. See In re Carter W. Page, NS-DC-0127 in this Clearinghouse.

Lisa Limb - 02/12/2019


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Issues and Causes of Action
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Issues
Constitutional Clause
Unreasonable search and seizure
General
Confidentiality
Record-keeping
Records Disclosure
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
Private Plaintiff
Public (for-profit) corporation
Causes of Action FISA Title I Warrant (Electronic Surveillance), 50 U.S.C. ยงยง 1801-1812
FISA Title VII targeting order (Sections 702, 703, 704), 50 U.S.C. 1881a, 1881b, 1881c
Defendant(s) Department of Justice
Plaintiff Description Plaintiffs are reporters Charlie Savage and Adam Goldman, along with the New York Times Company. Plaintiffs are represented by the Media Freedom and Information Access Clinic, which is part of the Yale Law School's Floyd Abrams Institute for Freedom of Expression.
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Private Settlement Agreement
Filing Year 2018
Case Ongoing Yes
Case Listing NS-NY-0024 : N.Y. Times Co. v. United States DOJ (S.D.N.Y.)
NS-DC-0127 : In re Carter W. Page, a U.S. Person (FISC)
Additional Resources
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  Carter Page FISA Documents Are Released by Justice Department
Date: Jul. 21, 2018
By: Charlie Savage (The New York Times)
[ Detail ] [ External Link ]

Docket(s)
No docket sheet currently in the collection
General Documents
Motion of Adam Goldman, Charlie Savage, and the New York Times Company for Publication of Court Records
NS-DC-0126-0001.pdf | Detail
Date: 02/06/2018
Source: Foreign Intelligence Surveillance Court
Supplemental Notice of the Public Release of Additional Declassified Information and Developments Further Supporting Publication of the Carter Page Surveillance Records
NS-DC-0126-0002.pdf | Detail
Date: 02/14/2018
Source: Foreign Intelligence Surveillance Court
Second Supplemental Notice of the Public Release of Additional Information Further Supporting Publication of the Carter Page Surveillance Records
NS-DC-0126-0003.pdf | Detail
Date: 03/27/2018
Source: Foreign Intelligence Surveillance Court
show all people docs
Plaintiff's Lawyers Bloch-Wehba, Hannah (Connecticut) show/hide docs
NS-DC-0126-0001 | NS-DC-0126-0002 | NS-DC-0126-0003
Koningisor, Christina (New York) show/hide docs
NS-DC-0126-0001 | NS-DC-0126-0002 | NS-DC-0126-0003
Langford, John (Connecticut) show/hide docs
NS-DC-0126-0001 | NS-DC-0126-0002 | NS-DC-0126-0003
McCraw, David E (New York) show/hide docs
NS-DC-0126-0001 | NS-DC-0126-0002 | NS-DC-0126-0003
Schulz, David A. (Connecticut) show/hide docs
NS-DC-0126-0003

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