Just before John Brennan ended his term as director of the CIA in 2017, his agency issued a new set of guidelines under Executive Order (EO) 12333, the general charter that governs the intelligence community. Entitled “Central Intelligence Agency Intelligence Activities: Procedures Approved by the Attorney General Pursuant to Executive Order 12333,” the guidelines received little attention.
Latest in Foreign Intelligence Surveillance Court (FISC)
The Foreign Intelligence Surveillance Court (FISC) has released its annual report for 2018. The document is available here and below.
On Thursday, the Foreign Intelligence Surveillance Court issued an order stating that the government "has not relied on any action taken by [former Acting Attorney General Matthew Whitaker] in any submission to the court." The order, issued by Judge Rosemary Collyer, denied attorney Thomas C. Goldstein's motion to file an amicus curiae brief challenging Whitaker's authority to take action before the court on the basis that his appointment as acting attorney general was unlawful.
The Justice Department filed a brief with the Foreign Intelligence Surveillance Court on behalf of the United States arguing that the court lacks the jurisdiction to hear cases from private parties requesting the release of records. The full document is available below:
Recent headlines about foreign intelligence surveillance—e.g., “In Trump’s first year, FISA court denied record number of surveillance orders”—are misleading.
The director of the Administrative Office of U.S. Courts released the following report on the Foreign Intelligence Surveillance Court’s activities during 2017. The report states that the FISC received 1,614 applications—granting 1,147, modfying 391 in part, denying 50 in part, and denying 26 in full.
Over the last week, there's been a great deal of discussion on Lawfare regarding the role that the Foreign Intelligence Surveillance Court might play in clearing up controversy over the Nunes memo. Benjamin Wittes and Susan Hennessey have filed a brief before the FISA Court on the matter, and Sophia Brill has described how the court's rules might allow it to weigh in.
You wouldn’t know it from the endless public discussion of the Nunes Memo and the Democratic response to it, but the House of Representatives does not get to decide whether a FISA application is valid. Congress gets to decide what the legal standards are under FISA. But at the end of the day, the judge of any individual FISA application is not the chairman of the House intelligence committee. It’s not the ranking member either. It’s actually not even the President of the United States either.
The New York Times filed the following motion with the Foreign Intelligence Surveillance Court requesting the public release of the applications for and orders authorizing electronic surveillance of Trump campaign foreign policy adviser Carter Page.
At the heart of the now-released “Nunes memo” is an accusation that the FBI and Department of Justice misled the Foreign Intelligence Surveillance Court (FISC) when they sought orders to surveil former Trump campaign adviser Carter Page. One quandary (among many) is how the FBI and Justice Department can defend themselves from these allegations without revealing yet more classified information.