Case: Judicial Watch, Inc.'s Motion for Publication of Court Transcripts [FISA Docket Misc. 18-03]

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. 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. See Judicial Watch, Inc. v. United States DOJ, NS-DC-0131 in this Clearinghouse.

Thereafter, on July 25, 2018, Judicial Watch filed a motion with the FISC for publication of "all transcripts of hearings regarding applications for or renewal of [FISA] warrants related to Carter Page." 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 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.

As of February 2019, there has been no other activity in this matter that has been publicly disclosed.