Case: 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]

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.

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.