Explained: How the secret spy court really works

The allegations of surveillance abuse raised by House Intelligence Committee Devin Nunes (R-Calif.) hinge on a 1978 law that governs surveillance for the purposes of foreign intelligence.

That surveillance must be conducted with a warrant when the collection takes place in the United States. Those warrants are granted by a secretive court, the Foreign Intelligence Surveillance Court, which is known colloquially as “the FISC.” {mosads}

Nunes claims in a memo that the Department of Justice hoodwinked the FISC by failing to disclose that some of the information it used to apply for a surveillance warrant on former Trump campaign adviser Carter Page was drawn from opposition research paid for by Hillary Clinton and the Democratic National Committee (DNC). 

The warrant application included a footnote saying the provenance of the information was political opposition research, but did not specify Clinton or the DNC.

Here’s how the court works. 

What does the FISC do?  

Each week, one of the 11 district court judges who make up the court is on duty in Washington to handle warrant applications from the Justice Department for both physical and electronic surveillance.

Most of its work is done “ex parte,” or behind closed doors, in order to protect classified national security information.

How does it approve warrants?

It’s a multistep process. 

When the court receives an application, legal staff evaluate whether it meets the legal standard for a warrant — often seeking additional information or raising concerns about the application with the Department of Justice — before it is presented to the judge.

The judge then makes a preliminary determination about what to do with the application, like whether he or she is inclined to require a hearing or impose conditions on its approval. That feedback is conveyed to the Justice Department, which will then make any necessary amendments and submit a final application for the judge’s decision.

What is in an application?

The section of the 1978 law that would have pertained to Page is one of the least controversial parts of the so-called Foreign Intelligence Surveillance Act (FISA). Under Title I of FISA — nicknamed “traditional FISA” — the government has to show probable cause that the target is acting as an “agent of a foreign power” who is “knowingly engag[ing] … in clandestine intelligence activities.”

The government does not have to meet a probable cause standard that a crime has been committed to obtain the warrant. 

According to former agents, a completed FISA application goes through a rigorous multilayer review at both the FBI and the Justice Department that is designed to prevent unsubstantiated information from reaching the FISC.

At the Justice Department, under what’s known as the “Woods procedures,” attorneys from the National Security Division pick through the application to verify all of the assertions it makes.

“If anything looks unsubstantiated, the application is sent back to the FBI to provide additional evidentiary support,” former FBI agent Asha Rangappa writes in Just Security. “This game of bureaucratic chutes and ladders continues until [the Justice Department] is satisfied that the facts in the FISA application can both be corroborated and meet the legal standards for the court.” 

How many warrants does the court approve?  

In 2016, the court reviewed 1,752 applications and certifications. In total, about 98 percent of applications were granted, either as originally requested or with modifications. 

Almost 80 percent of the warrants were granted as requested. About 19 percent, 339 applications were granted with edits — like including a reporting requirement or shortening the duration of the proposed surveillance.

Twenty-six applications were denied in part and nine were denied in full. 

Critics say that the FISC is a “rubber-stamp” court because so few applications are denied. Its defenders argue that the final approval rate is misleading because the vetting and editing process is so rigorous.

One of the major criticisms of the secretive court has long been that only one party, the U.S. government, is represented at FISC proceedings — meaning that the targets themselves don’t have a chance to argue that their surveillance is unlawful.

Who sits on the court?  

The 11 FISC judges are sitting federal judges selected by the chief justice of the Supreme Court, a position now held by John Roberts, who was appointed by former President George W. Bush. The judges are drawn from at least seven judicial circuits, although three of them are required to reside within 20 miles of the District of Columbia. They serve overlapping terms of no more than seven years.

The current presiding judge is U.S. District Court Judge Rosemary Collyer, who was also originally appointed to the bench by Bush.

Roberts has faced criticism in the past for selecting too many judges initially appointed by Republicans, who, the argument goes, would be likely to be more permissive in granting warrant requests. He has since tapped several judges originally appointed by Democrats.

There is also a review court, made up of three district or appeals court judges also appointed by the chief justice.

What powers does the court have?

The court has no investigative powers and relies on the intelligence agencies themselves to report noncompliance with their orders — although at least one former FISC judge, James Robertson, has argued that because the court now effectively makes the rules for conduct of surveillance programs, it is acting as an administrative agency.

Some FISA experts have suggested that the easiest resolution to the question of whether or not the FBI and the Justice Department misled the court about the provenance of information in the Page application would be for the FISC to speak for itself.

“I would imagine that now, the government is either on its way to the court or thinking about how to go to the court to officially advise the court of this [Nunes] memo,” David Kris, one of the top FISA experts in the country, told the Lawfare Podcast this week. 

That kind of update is “the normal thing to do,” Kris said, and would give the court the opportunity to weigh in on whether it believed the omission of Clinton’s name would have changed its decision to grant the original warrant and three subsequent renewals. 

But because of the clandestine nature of the court, whether that interaction or the substance of the court’s response will ever be made public is an open question.

“I can imagine ways the court could go public with a statement that didn’t compromise sources and methods, so there may be a way out of it here,” Kris said. “But it’s part of a larger problem that can’t be ignored whenever these types of situations come up.”