Case: In re Matters Before the Foreign Intelligence Surveillance Court Relating to Carter Page & Declassified by Order of the President on February 2, 2018 [FISA Docket Misc. 18-02]

18-00002 | Foreign Intelligence Surveillance Court

Filed Date: 2018

Case Ongoing

Clearinghouse coding in progress

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 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 f…

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. The initial warrant application and the three renewal orders were eventually disclosed by the Department of Justice on July 21, 2018. See In re Carter W. Page, a U.S. Person.

On February 9, 2018, Benjamin Wittes, editor in chief of Lawfare, and Susan Hennessey, Executive Editor of Lawfare, filed a motion for leave to submit a brief of Amici Curiae. They sought to file an amici brief, "in support of no party," because they were concerned about the "Department of Justice's candor in submitting a FISA application and several renewal applications [for the surveillance of Carter Page] to this Court."

In their motion, the plaintiffs attached a proposed brief of Amici Curiae. In their proposed brief, the plaintiffs asked the FISC to make public the disposition of any proceedings the FISC was engaged in to review whether the Department of Justice had committed misconduct by withholding pertinent information from their FISA application for the surveillance of Carter Page. If there had been no misconduct, the plaintiffs argued that the FISC should inform the public of that in order to correct any appearances of impropriety. Despite acknowledging the FISC's need for secrecy, the plaintiffs reasoned that, since the President and the House Committee had already disclosed the Nunes Memo, the FISC should be free to make public "an unclassified account of its own handling of the matter . . . without revealing any additional classified information."

As of February 2019, there has been no other activity in this matter that has been publicly disclosed.

 

Summary Authors

Lisa Limb (2/23/2019)

People


Attorney for Plaintiff

Berwick, Benjamin Leon (Massachusetts)

Florence, Justin (District of Columbia)

Tindall , Anne Harden (District of Columbia)

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Documents in the Clearinghouse

No documents yet available via the Clearinghouse.

Resources

Docket

Docket sheet not available via the Clearinghouse.

Case Details

State / Territory: District of Columbia

Case Type(s):

National Security

Special Collection(s):

Foreign Intelligence Surveillance Act -- All Matters

Foreign Intelligence Surveillance Court

Key Dates

Filing Date: 2018

Case Ongoing: Yes

Plaintiffs

Plaintiff Description:

Plaintiffs are Benjamin Wittes, Senior Fellow in governance Studies at the Brookings Institution and editor in chief of Lawfare, and Susan Hennessey, Executive Editor of Lawfare and General Counsel of the Lawfare Institute.

Plaintiff Type(s):

Private Plaintiff

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Case Details

Causes of Action:

FISA Title I Warrant (Electronic Surveillance), 50 U.S.C. §§ 1801-1812

Constitutional Clause(s):

Unreasonable search and seizure

Available Documents:

None of the above

Outcome

Prevailing Party: None Yet / None

Nature of Relief:

None yet

Source of Relief:

None yet

Issues

General:

Confidentiality

Courts

Record-keeping

Records Disclosure

Search policies

Terrorism/Post 9-11 issues