On November 7, 2016, the day before the 2016 general election, HeatStreet released a bombshell report that a FISA warrant was issued for a server in Trump Tower.
In January National Review picked up on the story with former U.S. Attorney Andrew C. McCarthy offering his take. McCarthy explained that as a terrorist prosecutor he often argued against the “wall” separating the FBI’s Counter-Intelligence division, and the criminal investigative division. McCarthy leads with, “the idea that FISA could be used against political enemies always seemed far-fetched. Now it might not be.”
That leads to the question, what is the FISA court and how is it different than a regular criminal court.
Unlike the misconception proffered by Howard Dean, the FISA court was not, “set up after 9/11 by Bush.” According to the Department of Justice, The Foreign Intelligence Service Court was established by the Foreign Intelligence Surveillance Act of 1978. Here is how the DOJ describes it.
Like Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the "Wiretap Act"), the FISA legislation was the result of congressional investigations into Federal surveillance activities conducted in the name of national security. Through FISA, Congress sought to provide judicial and congressional oversight of foreign intelligence surveillance activities while maintaining the secrecy necessary to effectively monitor national security threats. FISA was initially enacted in 1978 and sets out procedures for physical and electronic surveillance and collection of foreign intelligence information. Initially, FISA addressed only electronic surveillance but has been significantly amended to address the use of pen registers and trap and trace devices, physical searches, and business records.
FISA also established the United States Foreign Intelligence Surveillance Court (FISC), a special U.S. Federal court that holds nonpublic sessions to consider issuing search warrants under FISA. Proceedings before the FISC are ex parte, meaning the government is the only party present.
There are currently eleven members of the court. They are appointed for set terms, and also hold judgeships in other Federal Courts. Judges were appointed to their district courts by both Republican and Democratic presidents, and FISC judges are appointed to the court by the Chief Justice of the Supreme Court.
The narrative from the Left has quickly morphed from denial that the Obama administration wiretapped Trump Tower to an admonishment that if a wiretap did happen is was after a FISA court warrant. The Left has further stated that if a warrant was issued, then it must have been because probable cause was found to give the warrant. Here’s David Axelrod, a high level Obama confidant, making that assertion.
If there were the wiretap @realDonaldTrump loudly alleges, such an extraordinary warrant would only have been OKed by a court for a reason.
— David Axelrod (@davidaxelrod) March 4, 2017
That’s not how FISA warrants are given. Here’s how the DOJ describes the warrant process in a FISC [emphasis added].
Electronic Surveillance Procedures – Subchapter I of FISA established procedures for the conduct of foreign intelligence surveillance and created the Foreign Intelligence Surveillance Court (FISC). The Department of Justice must apply to the FISC to obtain a warrant authorizing electronic surveillance of foreign agents. For targets that are U.S. persons (U.S. citizens, permanent resident aliens, and U.S. corporations), FISA requires heightened requirements in some instances.
- Unlike domestic criminal surveillance warrants issued under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the "Wiretap Act"), agents need to demonstrate probable cause to believe that the "target of the surveillance is a foreign power or agent of a foreign power," that "a significant purpose" of the surveillance is to obtain "foreign intelligence information," and that appropriate "minimization procedures" are in place. 50 U.S.C. § 1804.
- Agents do not need to demonstrate that commission of a crime is imminent.
- For purposes of FISA, agents of foreign powers include agents of foreign political organizations and groups engaged in international terrorism, as well as agents of foreign nations. 50 U.S.C. § 1801
There you have it, the “agents do not need to demonstrate that commission of a crime is imminent.” This low bar results in almost all warrant requests being granted by the FISC. In 2013, Mother Jones reported that the FISC had rejected just 0.03 percent of all requests.
McCarthy explained further in his January, 2017 piece how a FISA warrant differs from a criminal warrant.
The theory of the Clinton DOJ brass in imposing the Wall was the potential that a rogue criminal investigator, lacking sufficient evidence to obtain a traditional wiretap, would manufacture a national-security angle in order to get a wiretap under the 1978 Foreign Intelligence Surveillance Act (FISA). A traditional wiretap requires evidence amounting to probable cause of commission of a crime. A FISA wiretap requires no showing of a crime, just evidence amounting to probable cause that the target of the wiretap is an agent of a foreign power. (A foreign power can be another country or a foreign terrorist organization.) The reason the Wall theory was absurd was that a rogue agent would surely manufacture evidence of a crime before he’d manufacture a national-security angle. The process of getting a traditional wiretap is straightforward: FBI crim-div agents and a district assistant U.S. attorney (AUSA) write the supporting affidavit; it gets approved by the AUSA’s supervisors; then it is submitted to the Justice Department’s electronic-surveillance unit; after that unit’s approval, the attorney general’s designee signs off; then the AUSA and the FBI present the application to a district judge. FISA wiretaps, by contrast, go through a completely different, more difficult and remote chain of command. In it, the district AUSA and FBI crim-div agents who started the investigation get cut out of the process, which is taken over by Main Justice’s National Security Division and the FBI’s national-security agents. In other words, if we assume an agent is inclined to be a rogue, it would be far easier (and less likely of detection) to trump up evidence of a crime in order to satisfy the probable-cause standard for a traditional wiretap than to manufacture a national-security threat in order to get a FISA wiretap. No rational rogue would do it.
What McCarthy describes is that a FISA warrant is much easier to obtain, and that the Clinton DOJ set up a wall between counter intelligence officers and the criminal division to ensure that a rogue FBI agent, unable to demonstrate probable cause, would be unable to obtain a FISA warrant to circumvent the criminal courts. If the Obama administration went to the FISC for a FISA warrant, that is exactly what seemingly happened.
While we will not definitively know that if there was or was not a FISA warrant until it is released to the public, it is important to know the facts surrounding the court to parse the statements being made by the Left.
Editor's Note: A previous version of this piece incorrectly stated that the President appoints judges to FISC.