University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name 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] NS-DC-0128
Docket / Court Misc. 18-02 ( 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. 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, NS-DC-0127 in this Clearinghouse.

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.

Lisa Limb - 02/23/2019


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Issues and Causes of Action
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Issues
Constitutional Clause
Unreasonable search and seizure
General
Confidentiality
Courts
Record-keeping
Records Disclosure
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
Private Plaintiff
Causes of Action FISA Title I Warrant (Electronic Surveillance), 50 U.S.C. ยงยง 1801-1812
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.
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filing Year 2018
Case Ongoing Yes
Case Listing NS-DC-0127 : In re Carter W. Page, a U.S. Person (FISC)
Additional Resources
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  Friends of the Court: A Suggestion for the FISA Court on the Nunes Memo
https://www.lawfareblog.com/friends-court-suggestion-fisa-court-nunes-memo
Date: Feb. 7, 2018
By: Benjamin Wittes (Lawfare)
[ Detail ]

Docket(s)
No docket sheet currently in the collection
General Documents
Motion of Benjamin Wittes and Susan Hennessey for Leave to File Brief of Amici Curiae Asking the Court to Make Public the Disposition of Any Proceedings Concerning the Justice Department's Conduct Before This Court
NS-DC-0128-0001.pdf | Detail
Date: 02/08/2018
Source: Foreign Intelligence Surveillance Court
show all people docs
Plaintiff's Lawyers Berwick, Benjamin Leon (Massachusetts) show/hide docs
NS-DC-0128-0001
Florence, Justin (District of Columbia) show/hide docs
NS-DC-0128-0001
Tindall , Anne Harden (District of Columbia) show/hide docs
NS-DC-0128-0001

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