Congress, Michael Flynn, Russia, FISA, FISA warrant, federal judges, Chief Justice Supreme Court

What Is FISA And Was It A Good Idea?

By Grace Lidia Suárez

What does FISA stand for? It is an acronym which stands for Foreign Intelligence Surveillance Act. It is a law enacted by Congress and signed by President Carter in 1978. It governs the procedures used to gather and collect information on foreign governments and their agents. The law created FISC, a special court charged with reviewing search warrants sought under the Act. It has been amended and re-enacted since then.

Before FISA, the CIA, NSA and other intelligence agencies collected information and spied upon foreign agents pretty much at will. FISA was an attempt to bring the activities of the agencies under some sort of control. This was a largely a reaction to abuses under the Nixon administration.

While some provisions allow intelligence gathering and surveillance without a court order, the portions at issue lately are the ones that require a court order.

In order to grant the request, the court has to find that probable cause exists to believe the target is an agent of a foreign power, and that the information sought will support that conclusion.

As Lawfare puts it,

Generally speaking, under Title I of FISA a person can be targeted if the government establishes probable cause that he or she is the “agent of a foreign power.” The definition of “agent of a foreign power” is slightly different for U.S. persons versus non-U.S. persons.

The order has a 90-120 day life, before it must be renewed.

The judges of the FISC are ordinary federal judges, appointed to seven-year terms by the Chief Justice of the Supreme Court. They meet in Washington DC, so generally they are chosen from judges presiding in the greater DC area. Their identities are known, though the proceedings are sealed and rarely revealed.

As with any other search warrant, the order is sought by the prosecution, without notice to the target or counsel. There is nothing unusual about this, despite what some critics say.

A violation of the procedures for obtaining the warrant may expose the government and its agents to civil penalties, payable to the aggrieved party. Presumably, if the situation is sufficiently serious, prosecutions for perjury may follow.

There are plenty of criticisms and critics from the left and right. However, most seem to recognize that simply returning to the old days is not an option.

The above is a Super Bowl Sunday light romp over FISA, a subject that could easily consume a career.

For a deeper dive, see

Wikipedia (don’t laugh; it’s a well sourced article).

Chapter 2 of The Threat Matrix by Garrett Graff (“One of the reforms enacted in COINTELPRO’s wake was the 1978 Foreign Intelligence Surveillance Act (FISA).”)


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