How FISA wiretap applications work and why it matters in the Trump-Russia fight

Jan 30, 2018
  • By Charlie Savage
  • The New York Times
Susan Walsh/AP
This Oct. 24, 2017, file photo shows House Intelligence Committee Chairman Rep. Devin Nunes, R-Calif., speaking on Capitol Hill in Washington. Twitter accounts linked to Russian influence operations are pushing a conservative meme related to the investigation of Russian election interference, researchers say.

A fight over a classified memo written by Republican staffers on the House Intelligence Committee, which portrays as scandal-draped the early stages of the Justice Department investigation into links between the Trump campaign and Russia, is heightening interest in legal issues about intelligence wiretap applications. 

On Monday, the committee, which is led by Rep. Devin Nunes, R-Calif., voted along party lines to set in motion a process to soon make the memo public under an obscure House rule, while rejecting a request to simultaneously disseminate a rebuttal memo produced by the committee’s Democrats. 

According to people who have read it, the Republicans’ memo describes what they portray as an abuse of government surveillance powers. It centers on a classified wiretap application the government submitted to a judge in the fall of 2016 which targeted Carter Page, a onetime Trump campaign official who had traveled to Russia in July 2016 and was preparing to return there that December, along with renewal applications. 

— What is a FISA wiretap? 

The Foreign Intelligence Surveillance Act, or FISA, signed into law in 1978, requires the government, when eavesdropping on communications on domestic soil for national security purposes, to obtain permission from a judge on the Foreign Intelligence Surveillance Court. The judge must agree that the target is probably an agent of a foreign power and will probably use the specific email accounts or phone numbers that the Justice Department wants to wiretap. 

— What standard must be met to get a FISA wiretap? 

To issue a FISA order authorizing investigators to eavesdrop on an American, a judge must agree that there is reason to believe the target was knowingly engaging in clandestine intelligence activities for a foreign power and that violate American criminal laws — or is knowingly aiding or conspiring with someone else who is doing that. 

“It’s a common-sense test,” said Matthew G. Olsen, who presented FISA applications to the court as the top Justice Department intelligence official during the George W. Bush administration. “It requires a reasonable basis that is reached on facts that can be articulated. It’s not as high a standard as ‘beyond a reasonable doubt,’ but it’s more than a hunch or speculation.” 

Judges only rarely deny applications for either type of wiretap, government statistics show. Critics of the process call the FISA Court a rubber stamp, while defenders point to the layers of high-level review in the Justice Department — and the practice of having preliminary discussions with the court and its staff, sometimes resulting in modifications. They say those steps ensure that the government rarely submits an application that falls short. 

— What is in a FISA application? 

According to several former officials, a typical application ranges between 30 and 100 pages and centers on a factual affidavit by a senior FBI agent working on the investigation at headquarters, which in turn compiles information submitted by other agents in the field. This document primarily explains what evidence the bureau has gathered to establish that a target is probably a foreign agent. 

A typical application would also include a legal memorandum by a career Justice Department intelligence attorney; a certification explaining the purpose and necessity of the requested surveillance and signed by the FBI director; and approval for the broader package signed by a senior, Senate-confirmed Justice Department official — the attorney general, the deputy attorney general or the head of the National Security Division. 

Occasionally the package may be supplemented with other materials. For example, it may include a news article to show that an investigation has become public knowledge, which could make it more likely that a target is taking steps to conceal his activities. 

— What does the Republican memo say? 

According to people familiar with it, the Republican memo contends that the application for an order authorizing surveillance of Page relied on information provided by Christopher Steele, the former British intelligence agent who compiled a notorious dossier about Donald Trump and Russia, without adequately explaining that the Democratic National Committee and Hillary Clinton’s campaign was funding his Trump-Russia research. The suggestion is that the court was misled about Steele’s credibility. 

Democrats on the committee, led by Rep. Adam B. Schiff of California, maintain that the Republican memo is misleading — both making inaccurate assertions and omitting context in order to support a Republican narrative that the Russia investigation stems from a conspiracy by partisan FBI officials who were biased against Trump. For example, people familiar with the memo have said it omits discussion of other evidence cited in the application that stemmed from other intelligence sources and methods, exaggerating the importance of Steele’s information. 

David Kris, who ran the Justice Department’s National Security Division early in the Obama administration and co-wrote a book about FISA, said that when the department submits material from sources to the court, “it should also include information that would cast material doubt on their credibility — sources often come with bias or baggage of one sort or another.” 

But, he said, “there is no requirement for elaborate accounting: Courts routinely accept and uphold affidavits that generally describe a source’s shortcomings” without every specific detail. 

William C. Banks, a Syracuse University law professor who has studied the FISA Court, said that without reviewing all the documents involved in the surveillance request, it is impossible to judge the importance of how Steele was described. But he stressed that the government has broad leeway in seeking FISA warrants. 

“Carter Page was doing business in Russia, talking to Russian diplomats who may have been involved in intelligence activities directed at the United States,” Banks said. “Game over. The standards are incredibly open-ended.” 

— What about Rod Rosenstein? 

The Republican memo is also said to disclose that Rosenstein, the deputy attorney general appointed by Trump, signed off on an application to extend the wiretapping of Page. 

Under the law, FISA orders targeting Americans are good for 90 days, but extensions “may be granted on the same basis as an original order.” The application, however, must consist of newly produced findings that the standards are met rather than merely recycling the previously signed documents. 

Rosenstein’s signing off on applying for an extension indicates that the Trump administration’s Justice Department agreed that there was probable cause that the president’s former campaign aide was an agent for Russia. Another implication of Rosenstein’s move is that he, too, approved providing Steele’s information to the FISA court — an act many Republicans and conservative media commentators are portraying as scandalous. 

Under Justice Department regulations, Rosenstein oversees Robert S. Mueller III, the special counsel leading the Russia investigation, and is the only official who can fire him.