FISA Probable Cause Standard Is Different From The Standard for Criminal Warrants

Foreign Intelligence Surveillance Act ("FISA") intercepts may contain national security information. If an aggrieved person (usually the target of the surveillance) is charged with a crime and seeks discovery of the FISA applications or orders or other materials, alleging the surveillance was unlawfully acquired or not in conformity with the FISA Court's authorization, 50 U.S.C. § 1806(e), (f), the Attorney General could prevent discovery by filing an affidavit declaring that disclosure or an adversary hearing "would harm the national security of the United States," in which case the federal district court reviewing the defendant's motion must "review 'in camera' and 'ex parte' the application, order, and such other materials as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted." See United States v. El-Mezain, 664 F.3d 467, 564 (5th Cir. 2011) (quoting and citing 50 U.S.C. § 1806).

By Catherine Park

In camera and ex parte review takes place off the record. If the federal district judge finds that the surveillance was lawfully authorized and conducted, the court must "deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure." El-Mezain, supra, at 566 (quoting 50 U.S.C. § 1806(g)).

As a result, FISA application materials and orders remain secret to avoid disclosure of national security information. As the U.S. Courts of Appeals for the Fifth Circuit and Eleventh Circuit have held, FISA's probable-cause standard is different from "the probable-cause standard applicable to criminal warrants [emphasis added]." United States v. Osmakac, 868 F.3d 937 (11th Cir. August 18, 2017) (quoting see, e.g., El-Mezain, supra, at 564).

The Fifth Circuit discussed the requirements for obtaining a FISA order in Osmakac:

[T]he government must establish, inter alia, probable cause to believe that the target of the electronic surveillance or physical search is “a foreign power or an agent of a foreign power” and that the facilities or places at which the surveillance or search is directed are being used or are about to be used by the target. 50 U.S.C. §§ 1804(a)(3), 1805(a)(2), 1823(a)(3), 1824(a)(2). (footnote omitted) …. In determining “probable cause,” the FISA Court “may consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target.” 50 U.S.C. §§ 1805(b), 1842(b).

…. [T]he government must submit to the FISA Court an application, approved by the Attorney General, which includes certifications by a designated official of the executive branch. 50 U.S.C. §§ 1804(a)(6), 1823(a)(6). The certifications must show: (1) that the information sought is foreign-intelligence information, 50 U.S.C. §§ 1804(a)(6)(A), 1823(a)(6)(A); (2) that “a significant purpose” of the searches and surveillance is “to obtain foreign intelligence information,” 50 U.S.C. §§ 1804(a)(6)(B), 1823(a)(6)(B); and (3) that the information sought “cannot reasonably be obtained by normal investigative techniques,” 50 U,S.C. §§ 1804(a)(6)(C), 1823(a)(6)(C). The certifications must further: (4) designate the “type of foreign intelligence information being sought,” 50 U.S.C. §§ 1804(a0(6)(D), 1823(A)(6)(D); and (5) include a statement that describes why the information is so designated and why it cannot be reasonably obtained by normal investigative techniques, 50 U.S.C. §§ 1804(a)(6)(E), 1823(a)(6)(E).

… [A] FISA application must also identify proposed “minimization procedures” that the government will employ … to minimize the acquisition and retention, and prohibit the dissemination, of non-publicly available information concerning any “unconsenting United States persons” consistent with the government’s need to obtain, produce, and disseminate foreign-intelligence information. 50 U.S.C. §§ 1801(h), 1804(a)(4), 1805(a)(3), 1821(4), 1823(a)(4), 1824(a)(3).

Osmakac, supra, at 952-53.

One of the issues relevant to Republican claims that the FBI and Dept. of Justice abused their power in surveilling Carter Page (a former foreign-policy advisor to President Trump during his election campaign) is that when FISA was enacted into law in 1978, the statute required that the goal of obtaining foreign intelligence information had to be “the purpose” of the surveillance. See El-Mezain, supra, at 568-69 (citing United States v. Abu-Jihaad, 630 F.3d 102, 119 (2d Cir. 2010) (quoting 50 U.S.C. § 1804(a)(7)(B) (Supp. V 1981)).

Courts interpreted “the purpose” as “primary purpose.” See El-Mezain, supra, at 568-69 (citing Abu-Jihaad, supra (quoting United States v. Duggan, 743 F.2d 59, 77 (2d Cir. 1984); citing see also United States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991); citing see United States v. Truong Dinh Hung, 629 F.2d 908, 915 (4th Cir. 1980)).

But FISA was amended in 2001 with the PATRIOT Act. El-Mezain, supra, at 569 (citing see Pub.L. No. 107-56, 115 Stat. 271 (2001)). Among other things, the PATRIOT Act authorized FISA surveillance when the Government certifies that foreign intelligence gathering is a “significant purpose” rather than “the purpose.” See El-Mezain, supra, at 569. In 2002, the Foreign Intelligence Surveillance Court of Review (FISCR) conducted an exhaustive analysis of the statute and legislative history, along with Circuit opinions, and held that there had never been a primary purpose requirement. See In re Sealed Case, 310 F.3d 717 (FISCR 2002).

As explained by the Eleventh Circuit decision in El-Mezain, the FISCR in In re Sealed Case reasoned:

"[A]s we have noted, the definition of an agent of a foreign power—if he or she is a U.S. person—is grounded on criminal conduct." In re Sealed Case, supra, at 723. As originally enacted, the court held, FISA had not "even contemplated that the FISA court would inquire into the government's purpose in seeking foreign intelligence information." Id.

El-Mezain, supra, at 569 (citing In re Sealed Case, at 723).

FISA is a powerful tool for keeping track of America's enemies. Needless to say, an innocent United States person targeted by such surveillance might have cause for outrage at being grouped with America's enemies and under investigation for foreign intelligence crimes, such as "espionage, sabotage, and terrorism …." El-Mezain, supra, at 569 (citing FISCR's analysis in In re Sealed Case).

FISA applications approved by the Attorney General are subject only to "minimal scrutiny" by a reviewing court. See Osmakac, supra, at 953 (citing United States v. Campa, 529 F.3d 980, 993 (11th Cir. 2008); United States v. Badia, 827 F.2d 1458, 1463 (11th Cir. 1987); United States v. Stewart, 590 F.3d 93, 127 (2d Cir. 2009)).

The Eleventh Circuit in deciding Osmakac quoted from an earlier Eleventh Circuit case, Campa:

"The reviewing court has no greater authority to review the certifications of the executive branch than the FISA court has." Campa, 529 F.3d at 993. When no "United States person" is a target of the search or surveillance, "in the absence of a prima facie showing of a fraudulent statement by the certifying officer, procedural regularity is the only determination to be made." (footnote omitted)

If, as here, the FISA target is a United States person, we review to ensure only that the certifications in the application are not clearly erroneous. Campa, 529 F.3d at 994. In making our review of the certifications, we may consider the statement in the application that formed the basis for the certifications and any other information furnished in connection with the application. Campa (citing 50 U.S.C. § 1824(a)(5) (2008)).

Last week, the Republican-controlled House of Representatives Intelligence Committee issued a memo alleging abuse of power by the FBI and Dept. of Justice in obtaining a FISA order for surveillance of President Trump's former foreign-policy advisor as a pretext to surveilling President Trump. Subsequently, The New York Times filed a motion with the FISA court seeking release of the FISA applications and orders in the public interest.