The Secret Court Behind the Scandal

A little known court cloaked in secrecy is at heart of the unraveling Washington scandal involving surveillance of the Trump campaign. The acronym for the court--FISA--has been peppered throughout news reports and in the just  released GOP House Intelligence Committee memo.

FISA is an enigma to most Americans.  That's because it is intentionally hidden from the public. It operates in stealth secrecy behind closed doors in a nondescript federal court building in Washington. Although records are kept of its proceedings, the details are unavailable to the public.

The Foreign Intelligence Surveillance Act (FISA) of 1978 was shepherded through Congress by Democrat Senator Ted Kennedy.  The law, signed by President Carter, was spawned by President Nixon's use of government resources to spy on political and activist groups.

FISA spelled out procedures for electronic snooping and collection of information on foreign powers and their agents.  The law created a Foreign Intelligence Surveillance Court (FISC)  to oversee government requests for surveillance warrants.

There are 11 FISC judges currently on the court.  The Chief Justice of the Supreme Court appoints sitting federal judges to this part-time assignment.  The judges serve seven-year terms in addition to their regular duties as federal magistrates.   FISC judges are on call 24/7.

Their job is to review requests for warrants sought primarily by the FBI and the National Security Agency (NSA) for surveillance of foreign intelligence agents operating inside the U.S.  The hearings are a one-sided affair with no one present outside the federal government.

If the FISC court rejects a request for a warrant, law enforcement agencies can appeal to the Foreign Intelligence Surveillance Court of Review.  That court is staffed by a three-judge panel.  It doesn't get much businesw because the FISC court rarely rejects a request out of hand.

In the 33-year period from 1979 to 2012, federal agencies made 33,942 requests for surveillance warrants.  Judges rejected a grand total of 12. In a few cases, the FISC court orders the government to modify its surveillance request before approving it.  But the majority are rubber stamped.  

In the years since the law became effective on October 25, 1978, Congress has tacked on a number of amendments widening the surveillance net.  FISA gives law enforcement the right to conduct a physical search of the premises, information or material used by a foreign agent or power.

However, the FISC court is limited to overseeing foreign--not domestic-- intelligence surveillance.  American citizens can be surveilled with a FISA warrant ONLY if there is evidence a crime has been committed while they were acting on behalf of a foreign government. 

After the deadly attacks of 9/11 on American soil, the act was again altered to include terrorists who are not backed by a foreign government.  In addition, the president is authorized to green light electronic surveillance of international calls and email linked to terrorist groups in case of an attack.

Americans have now discovered the FISA court was used to authorize eavesdropping on members of the Trump team. The so-called evidence that justified the court-sanctioned surveillance was a salacious dossier bankrolled by the Hillary Clinton campaign and the Democratic Party.

It is been publicly disclosed that the FISC court was not informed that the dossier was a paid political hit piece.  This is a serious omission that would have been challenged in an open proceeeding where the government is not the only party appearing in court.

This underscores what can happen when courts operate in secrecy without public oversight.  It is  chilling to consider the country's top law enforcement agency, the Federal Bureau of Investigation (FBI), can be weaponized against a political candidate by deceiving the FISA court.

This is not merely a political issue.  Spying on Americans without probable cause is a gross violation of civil libirities. It smacks of the tactics of a Russian regime that operates in the shadows to intimidate opposition and limit freedoms.  Nothing justifies illegal surveillance of Americans. 

Yet Democrats are desperately trying to shield the Obama Administration.  They fought tooth and nail to cover up the collusion between the FBI, the Department of Justice and the administration by opposing public release of the memo.  It stinks. Every American should be sickened.

In the days ahead, there will be calls for reform of surveillance laws.  The first act of Congress should be to shine some light on the FISC court.  This current kerfuffle cannot be the first and only abuse of a system shrouded in mystery. Lift the veil of secrecy or eliminate the FISC. And do it now.