Following the release of the now infamous Nunes Memo, former Democratic congressman John Dingell tweeted: “The memo was released, contains nothing of substance.”
Former Michigan Republican Congressman Mike Rogers said that the Nunes Memo “gives you part of the story.…And I argue that probably doesn’t allow you to make the best decision based on the information just in the memo itself.”
So how do you judge this controversy? The best way is to understand how the Foreign Intelligence Surveillance Act (FISA) works.
FISA creates a secret process for issuance of surveillance search warrants to allow the FBI to eavesdrop on Americans suspected of being foreign agents within the United States. The act created a “secret court” to review these search warrant requests known as applications.
Eleven sitting federal judges are appointed to the FISA court by the Chief Justice of the United States Supreme Court. Each judge serves a seven-year term and cannot be reappointed.
It is rare for these judges to reject a FISA warrant. FISA requires the disclosure of limited statistical information. In 2016, there were 1,752 surveillance requests. After consideration by the court, 1,378 orders were granted, 339 orders were modified, 26 orders were denied in part, and 9 applications were denied in full.
Part of the reason so many requests are granted is the warrant process itself. The FBI is prohibited from starting a FISA application “solely on the basis of First Amendment activities.” It has to have proof in support of the claim that an American was knowingly working for a foreign entity. This information can be gather in multiple ways, including from the person’s trash, informants, physical surveillance, foreign intelligence or even news articles to show that the information has become public. When enough evidence had been accumulated, it is attached to an affidavit and a request for a FISA warrant.
The completed FISA application has to be approved by FBI chain of command, starting with a supervisor, going up to the Special Agent in Charge of the field office, before it is then submitted to FBI headquarters where it is vetted and finally signed by the Director.
Once the FISA application has been approved by the FBI, attorneys from the National Security Division of the DOJ review it to verify all the assertions. If there are questions about the evidence, the application is sent back to the FBI to provide additional support so that the DOJ is satisfied the FISA application can both be corroborated and meet the legal standards for the court.
The legal standard for granting a FISA application does not require evidence that a crime has occurred; rather evidence must be sufficient to establish probable cause that there might be a crime, just like a search warrant in criminal court.
Once Justice Department attorneys are satisfied it is presented to a senior Senate-confirmed DOJ official for final review and a signature.
The request must show that the information sought is relevant to an ongoing investigation of espionage or terrorism. The DOJ must also establish that there is reason to believe that the target of the surveillance is an “agent of a foreign power” who is “knowingly engag[ing] . . . in clandestine intelligence activities.” In other words, it has to show that the individual is likely spying for a foreign government or organization. Finally, there must be some evidence that an email address or phone number is being used to support the activities.
Any warrant that the judge approves to surveil an American citizen has a time limit of no more than 90 days. A warrant can be renewed but the renewal application must establish that there are newly previous application provided action intelligence, rather than a restatement of the original application.
The application to surveil Carter Page, the Trump campaign advisor, was renewed three times. FISA records show four different judges reviewed the request and each granted it.
As former Representative Rogers pointed out, without reading the application itself, it is difficult to make a judgment.
However, we now know that a central claim of the Nunes memo was incorrect and that the original FISA Judge was informed of the political sourcing for document that formed part of the basis for the application. We also know that the memo’s claim that Former FBI director Comey called the Steele document “salacious and unverified,” was an exaggeration.
This information combined with the three application renewals suggests that Representative Dingell’s Tweet has a point.
This blog posting was first published in Deadline Detroit. Reprinted with permission.