From the Editor: The Return of the FISA Debate?

By Kieran Beer

It’s deja vu all over again.

I’m talking about the return of the liberty-versus-security debate over warrants issued by the Foreign Intelligence Surveillance Act (FISA) Court.

The last deep dive I took into the court and the 1978 law that established it was in 2009, while moderating a discussion between Mike German, a former FBI special agent then serving as a policy advisor for the American Civil Liberties Union, and Dennis Lormel, former chief of the FBI’s financial crimes program and a longstanding ACAMS advisory board member.

Their debate played out on the main stage of the 14th Annual International ACAMS Conference in Hollywood, FL. (Next year will mark the 24th installment of that conference!)

German argued that the FISA Court primarily served as a rubberstamp for FBI warrants to spy on U.S. citizens in violation of basic rights to due process. Lormel defended the warrants as essential tools for gathering intelligence, and rejected allegations that the bureau had skirted constitutional prohibitions against unreasonable searches and seizures in obtaining them.

Most of the criticism surrounding the FISA warrant process at the time came from the left, but the release last month of a classified surveillance warrant application the FBI filed two years ago to spy on Carter Page, then a foreign policy advisor to the election campaign of President Donald Trump, has prompted attacks from the other side of the U.S. political spectrum.

Conservatives also now target the FISA Court but more pointedly criticize the FBI, claiming the bureau pursued the warrant as part of a broader, malicious effort to spy on the entire Trump campaign.

“In my experience, getting a FISA warrant is extremely difficult,” Lormel told me when we talked over the phone last week about the 2009 debate and the reemergence of controversy surrounding FISA. “You have to go through a lot of review with headquarters, get legal opinions by bureau lawyers and then a [FISA] judge.”

The FISA Court rejected only 12 of the almost 34,000 applications filed by U.S. investigators from 1979 to 2013, according to The Wall Street Journal.

But those numbers belie the rigor of the process for seeking and justifying FISA warrants, Lormel said, adding that federal investigators must clear multiple, internal hurdles within the FBI and Justice Department before applications are submitted.

German, now with the Brennan Center for Justice at New York University, still harbors many doubts about the transparency and accountability of the FISA warrant process despite the modest controls placed on the program in 2015 by federal lawmakers and then-President Barack Obama.

But as FISA applications go, “the Page application is very thorough and clearly meets the probable cause standard necessary to obtain a FISA order or a criminal wiretap warrant,” German told ACAMS

“It is far from proof of guilt,” German said. “But it meets the amount of evidence necessary to suggest that the subject of the affidavit is probably going to commit a crime, or, in the case of FISA, that the subject is acting as a foreign agent.”

The heavily redacted request to monitor Page, a former Moscow-based investment banker and vocal critic of U.S. sanctions against Russia, contains significant narrative gaps and leaves several questions unanswered, but that alone does not diminish its validity.

Rather than having to convey the certainty of an indictment, the FBI only had to present a strong case that Page’s frequent contacts with Russian intelligence deserved a closer look.

Moreover, the FISA Court, which consists of a rotating panel of 11 federal judges appointed to seven-year terms by the chief justice of the Supreme Court, found the FBI’s case that Page conspired with the Russian government compelling enough for one judge to grant the bureau’s initial October 2016 application for a surveillance warrant.

Three other FISA Court judges subsequently approved extensions of the warrant.

So recent allegations that the FBI exploited the program to undermine the Trump campaign are hard for many Americans on either side of the political spectrum to swallow.

“If this application is viewed as insufficient, I can’t imagine any application passing muster,” said Marc Zwillinger, one of five advisers to the FISA Court who supports more transparency over domestic surveillance programs. “Even in the parts that are just released and not redacted, there is a clear case made that the government honestly believes Carter Page was acting as an agent of a foreign power.”

Maybe it is time to revisit FISA, but any need for that discussion does not warrant characterizing the FBI as devious or underhanded for wanting a closer look at Page’s interactions with a foreign adversary.

Nor does it mean that a properly constrained FISA Court, whose powers were enhanced after the Sept. 11 terror attacks, should be abolished, especially now that we have rediscovered the zeal of foreign antagonists to spy on America, steal trade secrets and rig Western elections.
Follow me @KieranBeer on Twitter

Topics : Anti-money laundering , Counterterrorist Financing , Info. Security/Cybercrime
Source: U.S.: Courts , U.S.: Law Enforcement
Document Date: August 21, 2018