Case: FISA Court Matters relating to disclosure of Carter Page surveillance records: Four FISC cases [FISC Misc. 18-01, Misc. 18-02, Misc. 18-03, and Misc. 19-01]

18-00001 | Foreign Intelligence Surveillance Court

Filed Date: Feb. 6, 2018

Closed Date: Sept. 15, 2020

Clearinghouse coding complete

Case Summary

In October 2016, the U.S. government first applied for a Foreign Intelligence Surveillance Act (FISA) warrant against Carter Page, the former foreign policy advisor to Donald Trump's 2016 presidential campaign. The warrants against Page alleged that he made contact with Russian officials to obtain compromising material on Trump's 2016 opponent, Hillary Clinton. For information on those warrants, their original applications, and ongoing efforts to protect the confidential information contained i…

In October 2016, the U.S. government first applied for a Foreign Intelligence Surveillance Act (FISA) warrant against Carter Page, the former foreign policy advisor to Donald Trump's 2016 presidential campaign. The warrants against Page alleged that he made contact with Russian officials to obtain compromising material on Trump's 2016 opponent, Hillary Clinton. For information on those warrants, their original applications, and ongoing efforts to protect the confidential information contained in them, see this link.

In December 2019, an FBI Inspector General report demonstrated that the warrant applications had been flawed. For the resulting Foreign Intelligence Surveillance Court (FISC) response aimed at reforming the FISA warrant application process inspired by this case, see this link.

This Clearinghouse entry focuses on efforts by reporters and nonprofits to obtain disclosure of the underlying FISA records. It aggregates 4 separately docketed FISA Court matters. They were:

• Misc. 18-01: efforts by New York Times reporters to publicize the initial FISA warrants.

• Misc. 18-02: an amicus brief in favor of disclosure from national security law experts at Lawfare.

• Misc. 18-03: efforts by conservative-leaning groups to disclose the transcripts of the FISC hearings that approved the FISA warrants.

• Misc. 19-01: efforts by conservative-leaning groups to release documents detailing misconduct in the Carter Page warrant applications.

There are also two related district court matters:

• 18-cv-02054 in the U.S. District Court for the Southern District of New York: a Freedom of Information Act (FOIA) action from the same reporters in FISC Misc. 18-01 seeking the same documents. It is coded separately in the Clearinghouse as NS-NY-0024.

• 18-cv-01050 in the U.S. District Court for the District of Columbia: a FOIA action from the same nonprofit in FISC Misc. 18-03 seeking the same information. It is coded separately in the Clearinghouse as NS-DC-0131.


FISA requires the government to obtain a warrant from the 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.

I. Background on Carter Page Surveillance

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 foreign policy advisor to the Trump Campaign between March and September of 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 Investigation (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.

II. Initial Filings Seeking Disclosure

On February 6, 2018, reporters Adam Goldman and Charlie Savage, along with The New York Times, filed a motion in the FISC for release of all court records, including opinions and application materials, in reference to the surveillance of Carter Page. All actions related to Goldman and Savage were put into FISC docket Misc. 18-01. Goldman and Savage argued that even before the Nunes Memo was released, there had been public speculation about the surveillance of Carter Page due to national debates over potential abuses of the government's surveillance authority under FISA. These debates were exacerbated by the investigation by Special Counsel Robert Mueller into potential collusion between the Trump Campaign and Russia during the 2017 Presidential Election and possible partisan motivations surrounding the release of the Nunes Memo, which was prepared solely by Republican members of the HPSCI and released over the strenuous objections of the Democratic members of that committee. Given the public interest in assessing the accuracy of the Nunes Memo and knowing the actual basis for the surveillance orders, Goldman and Savage requested that the FISC direct the publication of its orders authorizing surveillance of Carter Page and the application materials upon which they were issued.

On February 9, 2018, Benjamin Wittes and Susan Hennessey, respectively Editor in Chief and Executive Editor of Lawfare, a national security law blog, filed a motion with the FISC seeking leave to file an amicus curiae brief. The FISC filed this document as Misc. 18-02. Though Wittes and Hennessey sought formally to file a brief “in support of no party,” the motion appears sympathetic to movants like Goldman and Savage 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."

Wittes and Hennessey attached a proposed amicus brief. They 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, Wittes and Hennessey 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, they 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."

On February 14, 2018, Goldman and Savage filed a Supplemental Notice of the Public Release of Additional Declassified Information and Developments Further Supporting Publication of the Carter Page Surveillance Records (First Notice). This Supplemental Notice was part of docket Misc. 18-01. On February 6, 2018, Republican Senators Chuck Grassley and Lindsey Graham, with the approval of the FBI, made public a less-redacted version of a criminal referral (the Grassley-Graham Memo) related to the Carter Page wiretapping applications, which contained additional facts about the applications that the executive branch has chosen to declassify. On February 9, 2018, President Trump had refused to declassify a memorandum (the Rebuttal Memo) prepared by Democratic members of the HPSCI; the Rebuttal Memo had been described as disputing certain claimed facts and characterizations of the application for the surveillance orders portrayed in the Nunes Memo. In light of these two subsequent developments, Goldman and Savage urged the FISC to release all court orders and warrant application materials.

While the FISC reviewed these filings, Goldman and Savage on March 7, 2018, filed a parallel Freedom of Information Act (FOIA) proceeding, 18-cv-02054 in the U.S. District Court for the Southern District of New York, seeking the same records. This case is available in this Clearinghouse at this link.

On March 27, 2018, Goldman and Savage filed a Second Supplemental Notice of the Public Release of Additional Information Further Supporting Publication of the Carter Page Surveillance Records (Second Notice) in docket Misc. 18-01. On February 24, 2018, Democrats on the HPSCI, following a classification review by the DOJ and FBI, made additional public disclosures about the content of the judicial records regarding the surveillance of Carter Page. In light of these disclosures, the Plaintiffs argued that there was no proper need for "continued blanket secrecy of the judicial records concerning the Page surveillance."

As a result of Savage and Goldman’s FOIA case in the Southern District of New York, the DOJ released redacted copies of the Carter Page FISA warrant and renewal applications on July 21, 2018. For more information on the contents of these warrants, see this link. This effectively ended the action in the FISC, since the documents Savage and Goldman sought were produced elsewhere.

III. Disclosure Requests After the Warrant Release

On July 25, 2018, Judicial Watch, Inc., a conservative-leaning nonprofit that specializes in FOIA requests, filed a motion with the FISC asking for disclosure of "all transcripts of hearings regarding applications for or renewal of [FISA] warrants related to Carter Page." This opened a new FISC docket, Misc. 18-03. Judicial Watch argued that the release of the transcripts would "provide the public with a complete and unbiased look at the role of this Court" and "correct any inaccuracies contained in the Nunes and Democratic memoranda." Judicial Watch further argued that, with the recent release of the Carter Page surveillance warrant and renewal applications by the DOJ, the release of the hearing transcripts would not implicate concerns about revealing classified information. This filing came after Judicial Watch filed a parallel FOIA request on May 3, 2018 in the U.S. District Court for the District of Columbia seeking the same information. That case is also available in this Clearinghouse at this link.

On May 22, 2019, John Solomon and the Southeastern Legal Foundation, another conservative-leaning nonprofit, moved for the disclosure of FISC records regarding: 1) any records or documents related to any investigation that an attorney violated the FISC Rules of Procedure or Rules of Professional Conduct in connection with the Carter Page Foreign Intelligence Surveillance Act applications and renewals or any of the Section 702 violations the government notified FISC about on October 24, 2016; 2) any records or documents related to violations of FISC Rule of Procedure 13 in connection to the Carter Page FISA applications and renewals or the Section 702 violations discussed on October 24, 2016; and 3) any records or documents regarding a referral or complaint made to any attorney disciplinary body for conduct in connection to the Carter Page FISA application and the Section 702 violations acknowledged on October 24, 2016. This opened a new docket, Misc. 19-01. The Foundation alleged it was entitled to the records under a common law right of access and the First Amendment. It focused on the use of the "Steele dossier" in seeking the renewals, alleging that the document relied on false information and stemmed from a "desperate" attempt to undermine the Trump 2016 campaign.

On January 6, 2020, the Southeastern Legal Foundation submitted a notice of supplemental information in Misc. 19-01. The supplemental notice outlined disclosures made in the "U.S. Department of Justice Office of the Inspector General's Review of Four FISA Applications and Other Aspects of the FBI's Crossfire Hurricane Investigation" released on December 9, 2019. The report identified at least 17 errors in the FISA applications and renewals pertaining to Carter Page. The report discussed the FBI investigation of the Trump presidential campaign and the Russian government's attempts to interfere in the 2016 U.S. presidential election. Movants used the report as evidence of the alleged misstatements to FISC by the governments, claiming that the report proved "that the FBI and DOJ attorneys engaged in misconduct before [FISC]."

Though the FISC did not release records directly in response to the Southeastern Legal Foundation's motions in Misc. 19-01, it has ordered the FBI to improve its internal processes for handling FISA warrants. Those orders and motions are housed at this link.

On June 30, 2020, Judicial Watch filed a voluntary motion to dismiss FISC Misc. 18-03, because records disclosed during efforts to reform the FISA warrant process showed that the requested transcripts do not exist. The FISC granted this motion on July 13, 2020.

The Southeastern Legal Foundation's case before the FISC in Misc. 19-01 remained pending until September 15, 2020, when the FISC released an opinion and order dismissing the case for lack of subject matter jurisdiction. Judge Boasberg analogized the Southeastern Legal Foundation's argument for the FISC to exercise jurisdiction based on FISC Rule 62 and the qualified First Amendment right of access to that used in Misc. 13-08 (available in this Clearinghouse), which the FISC Court of Review had rejected.

Summary Authors

Ellen Aldin (10/22/2020)

Related Cases

In re Opinions & Orders of this Court Addressing Bulk Collection of Data under the Foreign Intelligence Surveillance Act [FISA Docket Misc. 13-08, FISCR docket 20-1], Foreign Intelligence Surveillance Court (2013)

In re Carter W. Page: A U.S. Person [FISA dockets 16-1182, 17-52, 17-375, 17-679], Foreign Intelligence Surveillance Court (2016)

James Madison Project v. U.S. Department of Justice, District of Columbia (2017)

N.Y. Times Co. v. United States DOJ, Southern District of New York (2018)

Judicial Watch, Inc. v. United States DOJ, District of Columbia (2018)

Judicial Watch, Inc. v. U.S. Department of Justice, District of Columbia (2018)

Page v. U.S. Department of Justice, District of Columbia (2019)

In re Accuracy Concerns Regarding FBI Matters Submitted to the FISC, Foreign Intelligence Surveillance Court (2019)

Page v. Comey, District of Columbia (2020)

People


Judge(s)

Boasberg, James Emanuel (District of Columbia)

Attorneys(s) for Plaintiff

Bekesha, Michael (District of Columbia)

Berwick, Benjamin Leon (Massachusetts)

Bloch-Wehba, Hannah (Connecticut)

Florence, Justin (District of Columbia)

Hermann, Kimberly S. (Georgia)

Koningisor, Christina (New York)

Langford, John (Connecticut)

McCraw, David E (New York)

Schulz, David A. (Connecticut)

Judge(s)

Boasberg, James Emanuel (District of Columbia)

Attorneys(s) for Plaintiff

Bekesha, Michael (District of Columbia)

Berwick, Benjamin Leon (Massachusetts)

Bloch-Wehba, Hannah (Connecticut)

Florence, Justin (District of Columbia)

Hermann, Kimberly S. (Georgia)

Koningisor, Christina (New York)

Langford, John (Connecticut)

McCraw, David E (New York)

Schulz, David A. (Connecticut)

Tindall , Anne Harden (District of Columbia)

Documents in the Clearinghouse

Document

18-00001

Motion of Adam Goldman, Charlie Savage, and the New York Times Company for Publication of Court Records

In re Orders & Records of this Court Related to the Surveillance of Carter Page [Misc. 18-01]

Feb. 6, 2018

Feb. 6, 2018

Pleading / Motion / Brief

18-00002

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

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]

Feb. 8, 2018

Feb. 8, 2018

Pleading / Motion / Brief

18-00001

Supplemental Notice of the Public Release of Additional Declassified Information and Developments Further Supporting Publication of the Carter Page Surveillance Records

In re Orders & Records of this Court Related to the Surveillance of Carter Page [Misc. 18-01]

Feb. 14, 2018

Feb. 14, 2018

Pleading / Motion / Brief

18-00001

Second Supplemental Notice of the Public Release of Additional Information Further Supporting Publication of the Carter Page Surveillance Records

In re Orders & Records of this Court Related to the Surveillance of Carter Page [Misc. 18-01]

March 27, 2018

March 27, 2018

Pleading / Motion / Brief

18-00003

Judicial Watch, Inc.'s Motion for Publication of Court Transcripts

In re Transcripts of this Court Related to the Surveillance of Carter Page [Misc. 18-03]

July 25, 2018

July 25, 2018

Pleading / Motion / Brief

19-00001

John Solomon and Southeastern Legal Foundation's Motion for Publication of Records

In re Motion for Publication of Records [Misc. 19-01]

May 23, 2019

May 23, 2019

Pleading / Motion / Brief

19-00001

Notice of Supplemental Information Supporting John Solomon and Southeastern Legal Foundation’s Motion for Publication of Records

In re Motion for Publication of Records [Misc. 19-01]

Jan. 6, 2020

Jan. 6, 2020

Pleading / Motion / Brief

18-00003

Judicial Watch, Inc.'s Motion to Dismiss

In re Transcripts of this Court Related to the Surveillance of Carter Page [Misc. 18-03]

June 30, 2020

June 30, 2020

Pleading / Motion / Brief

18-00003

Order

In re transcripts of this Court Related to the Surveillance of Carter Page

July 13, 2020

July 13, 2020

Order/Opinion

19-00001

Opinion and Order

In Re Motion for Publication of Records

Sept. 15, 2020

Sept. 15, 2020

Order/Opinion

Resources

Docket

Last updated Aug. 5, 2022, 3:09 a.m.

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: Feb. 6, 2018

Closing Date: Sept. 15, 2020

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Plaintiffs are reporters Charlie Savage and Adam Goldman, along with the New York Times Company; Judicial Watch, a conservative-leaning nonprofit that focuses on FOIA requests; and the Southeastern Legal Foundation, another conservative-leaning nonprofit.

Plaintiff Type(s):

Non-profit NON-religious organization

Private Plaintiff

Public (for-profit) corporation

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

United States, Federal

Defendant Type(s):

Law-enforcement

Case Details

Causes of Action:

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

FISA Title VII targeting order (Sections 702, 703, 704), 50 U.S.C. 1881a, 1881b, 1881c

Constitutional Clause(s):

Freedom of speech/association

Unreasonable search and seizure

Availably Documents:

Complaint (any)

Non-settlement Outcome

Outcome

Prevailing Party: Defendant

Nature of Relief:

None

Source of Relief:

Litigation

Issues

General:

Confidentiality

Courts

Record-keeping

Records Disclosure

Search policies

Terrorism/Post 9-11 issues