Intelligence community worried about Nunes memo’s potential ripple effects

President Richard Nixon’s unprecedented misuse of federal resources to spy on political and activist groups 40 years ago prompted the creation of the Foreign Intelligence Surveillance Act (FISA), which requires federal agencies to obtain warrants for investigations involving U.S. citizens.

Signed into law in 1978, FISA was created in an effort inject accountability into the act of federal spying on American citizens after past abuses. The Foreign Intelligence Surveillance Court (FISC) — also established in 1978 — reviews and approves or rejects applications for surveillance warrants.

In 2001, the USA Patriot Act expanded from seven to 11 the number of FISC judges, who are appointed by the Supreme Court chief justice and work in Washington. Because of the sensitive and timely nature of the issues before the court, it functions 24 hours a day, seven days a week.

FISC judges can authorize requests by a federal law enforcement or intelligence agency for a wiretap or data collection, based upon a FISA application, which must offer probable cause for suspicion that a target is a terrorist or spying for a foreign government or organization.

Evidence can include information collected from human sources, banking activity, physical surveillance, or even documents found in a suspect’s trash — and is outlined in an affidavit and the application.

The evidence is cleared by attorneys from the agency seeking the warrant, like the FBI or the National Security Agency. A Justice Department attorney then vets the applications for verification.

Finally, FISC judges convene secretly to review the application.

Court statistics show that it rejects only a tiny portion of applications.

The massive 2013 leak by former NSA contractor Edward Snowden exposed details of how the FISC works.

Last week, the House Intelligence Committee published a memo alleging that the FBI and the Justice Department abused FISA in the Trump-Russia investigation.

Drafted by the committee’s chairman — Rep. Devin Nunes, California Republican — the four-page memo deconstructs the FBI’s FISA application to surveil Carter Page, a former foreign policy volunteer for the Trump campaign.

The central point of the Nunes memo is that Mr. Page’s FISA application relied upon information from the anti-Trump dossier complied by former British intelligence agent Christopher Steele.

According to the memo, the FBI failed to inform the FISC that the Democratic Party and Hillary Clinton’s campaign had funded the dossier. As a result, the evidence is tainted with an anti-Trump bias, the memo alleges.

Trump supporters, including attorney David Rivkin, who served under Presidents Ronald Reagan and George H.W. Bush, have pounced on this point. On a conference call after the memo’s release, Mr. Rivkin called the lack of disclosure about Democratic funding “enormously consequential.”

But FBI and DOJ supporters counter that the Nunes memo irresponsibly excludes additional evidence supporting surveillance of Mr. Page and places too much emphasis on the dossier’s role in approving the warrant.

Sources told The Washington Times that the intelligence community, as a whole, is upset that the FISA process is being debated so openly, fearing destructive ripple effects across the entire law enforcement spectrum.

“We have gone to a place we have never gone before which is the injection of not just partisanship but hyper partisanship into the FISA process,” Michael Hayden, former CIA and NSA chief, said on CNN. “I can’t imagine what it must be like for these folks, frankly, in some of my old jobs.”

 

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