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, 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.

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. See Misc. 18-01, NS-DC-0126 in this Clearinghouse.

On March 7, 2018, reporter Charlie Savage and the New York Times Company also filed this lawsuit in the U.S. District Court for the Southern District of New York. The plaintiffs sued the Department of Justice (DOJ) under the Freedom of Information Act (FOIA) for the same documents they requested in their FISC motion: the release of all documents regarding the surveillance of Carter Page.

On July 21, 2018, the DOJ produced redacted documents it considered responsive to the FOIA request. See In re Carter W. Page, NS-DC-0127 in this Clearinghouse.

On August 9, 2018, the parties stipulated to settle their claims. In exchange for The Times's agreement to dismiss this action, the DOJ agreed to provide to the Times any additional documents responsive to The Times's FOIA Request that are released in any related actions. On August 9, 2018, United States District Judge Analisa Torres approved the settlement. The case is now closed.

Lisa Limb - 02/13/2019


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