The recent release of FISA surveillance warrant applications related to former Trump advisor Carter Page has thrust the once obscure FISA court back into the spotlight, resurfacing criticism that the high proportion of warrant applications the FISA court approves (95% in 2017), show that it is just a “rubber stamp” for an FBI run amuck.
While it is true that the FISA Court grants the overwhelming majority of FISA warrant requests, once you understand how the FISA process works, that high approval rate starts to make a lot more sense.
What Is FISA?
The Foreign Intelligence Surveillance Act (FISA) was enacted in 1978 in response to Nixon-era abuses of government surveillance authority. Before FISA, government surveillance under the guise of national security including snooping on Americans was essentially unchecked. FISA was created to put in place a process for judicial oversight of domestic surveillance to prevent abuses, such as wiretapping political opponents. Under FISA, the government must seek a warrant from the Foreign Intelligence Surveillance Court (FISC) for surveillance on U.S. soil related to national security.
The FISC is made up of eleven federal district court judges, appointed by the Chief Justice of the Supreme Court, that serve on a rotating basis. Because the FISC deals with extremely sensitive national security matters, it operates in almost complete secrecy.
FISA Warrants Are Different
FISA warrants are different than traditional Title III surveillance warrants used in criminal cases. FISA warrants authorize surveillance on foreign powers, agents of foreign powers, or suspected terrorists. Title III warrants authorize wiretaps used to gather evidence in criminal cases, and require that the government demonstrate probable cause that the proposed target has committed a crime, while FISA warrants require that the government show probable cause that the intended target is either a foreign power or an agent of a foreign power engaged in clandestine intelligence activities.
According to a recent Daily Beast article written by three former federal prosecutors, “probable cause means a ‘fair probability.’ It is more than a ‘mere suspicion’ but far less than the ‘reasonable doubt’ standard required to convict someone of a crime.”
The bar for a FISA warrant is somewhat lower bar than the probable cause of a crime standard for traditional Title III warrants. But, as Asha Rangappa, a former FBI agent who specialized in counterterrorism investigations explains, this is because “when it comes to national security, as opposed to criminal prosecutions, our Fourth Amendment rights are balanced against the government’s interest in protecting the country.
A ‘Rubber Stamp’?
It is true that the FISA Court approves the overwhelming majority of FISA warrant applications. In 2017, the FISC approved 95% of warrant applications. That’s a really high win rate. But, this doesn’t mean that the government can just put any old thing in front of the FISC and spy on whomever they want.
According to the Administrative Office of the U.S. Courts, in 2017, the FISC received 1,614 applications. Of those, it:
- granted 1,147;
- modified 391;
- denied in part 50; and,
- denied in full 26.
But, as high as the approval rate for FISA warrants is, it’s actually not as unusual as it seems. Regular old Title III criminal wiretap warrants actually have higher approval rates. In 2016, the most recent year for which data is available, only two out of the 3,168 Title III warrant applications were rejected at the state or federal level — a stunning 99.9994% approval rate!
Betting on Sure Things
According to Conor Clarke, who analyzed FISA and Title III approval rates in a Stanford Law Review article, one major reason for this is that the government only applies for FISA warrants that it thinks are highly likely to be approved. The government is very familiar with what the FISA court will and won’t accept, and simply selects cases it will take before the court accordingly.
“Because it is costly to make…an application (in time, resources, and reputation) and because the executive has long-running knowledge of how the FISC treats applications, there is little reason to expect agencies to submit losing requests,” Clarke wrote.
A ‘Byzantine Process’
Further, obtaining a FISA warrant is a Byzantine process that involves numerous layers of checks before a warrant ever reaches the FISC. When the FBI requests a FISA warrant, agents first prepare an application and send it up the chain at the FBI for approval.
According to Rangappa, such warrants must be reviewed, and ultimately approved, by an FBI Supervisor, the Chief Division Counsel, and the Special Agent in Charge of the field office, before it is sent to the unit-level Supervisor at FBI headquarters. Based on feedback from the internal review process, agents often make changes to the warrant to address any concerns encountered along the way.
From there, the application goes to the Department of Justice’s National Security Division where it is reviewed for accuracy. “If anything looks unsubstantiated,” Rangappa says, “the application is sent back to the FBI to provide additional evidentiary support – this game of bureaucratic chutes and ladders continues until DOJ is satisfied that the facts in the FISA application can both be corroborated and meet the legal standards for the court.”
The Bottom Line
We probably shouldn’t make too much of the high approval rates for FISA warrants. Given the similarly high approval rates for more pedestrian warrants used in criminal cases, it’s not as much of an outlier as it may first appear.
In light of the multiple levels of scrutiny and extensive scrubbing that FISA warrants undergo before they are submitted to the court, the fact that most are approved is not really all that surprising. “Ultimately,” Clarke writes, “we should care about the substance of what the court approves, not the frequency with which it does so.”