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 May 3, 2018, Judicial Watch filed a FOIA complaint against the Department of Justice (DOJ) seeking transcripts of any hearings related to Carter Page. The complaint alleged that Judicial Watch had submitted a FOIA request to the DOJ on February 16, 2018, but that as of May 3, 2018, the DOJ had failed to either produce the requested records or respond to them. On June 18, 2018, Judicial Watch received a letter from the DOJ stating that the DOJ did not have "any records responsive" to Judicial Watch's request. On August 30, 2018, the DOJ filed a motion for summary judgment, stating that the National Security Division (NSD), which maintains operational files regarding the FISC, "searched the locations likely to contain responsive records and reasonably determined that there are no responsive records." Furthermore, the DOJ maintained that its FOIA staff had consulted with subject matter experts in the Office of Intelligence who confirmed that, "as is typical in proceedings before the FISC, no hearings were held with respect to the acknowledged Carter Page FISA applications, and thus no responsive transcripts exist."

On September 24, 2018, in light of the fact that the DOJ did not have any responsive transcripts, the parties stipulated to the dismissal of this action with prejudice. The case is now closed. However, on July 25, 2018, after receiving the DOJ's letter, Judicial Watch filed a motion with the FISC for publication of all transcripts related to Carter Page. As of February 2019, there has been no other activity in this matter that has been publicly disclosed. See Misc. 18-03, NS-DC-0129 in this Clearinghouse.

Lisa Limb - 02/23/2019


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