What is the FISA Court and Why Do People Keep Bashing It?

New Article by Tim Cavanaugh in RealClearInvestigations,
Published Wednesday, Oct. 2, 2019

What if the irregularities in the court applications for surveillance of ex-Trump adviser Carter Page were not so irregular -- and Americans are routinely being wiretapped on flimsy national security pretexts?

That's the provocative question Tim Cavanaugh poses in RealClearInvestigations as he unpacks the opaque workings of the FISA spy court -- the focus of a highly anticipated Justice Department Inspector General's report on how the FBI ever got the green light to spy on Page.

Cavanaugh reports:

• Critics call the court a rubber-stamp body, pointing to its history of approving about 98% of the roughly 1,600 to 1,700 spy applications it receives each year.
• Although hundreds of warrants are approved each year, the public becomes aware of them only "10 or 20 times a year" when the government has to disclose FISA material used in court, an ACLU lawyer says.
• A lot of the court's critics are not Trump partisans but libertarians and stalwarts of the left like the American Civil Liberties Union and New York University's Brennan Center for Justice.
• They argue that it is too secretive and cozy with government authorities.
• The court has also been accused of allowing "mission creep," letting government agents rely more and more on FISA orders for surveillance rather than more appropriate, and restrictive, Title III criminal warrants.
• Unlike criminal wiretap orders, FISA orders allow the government to cast a wide net, empowering agents to collect communications from anyone in contact with the target as well as people communicating with those contacts.
• The 11 judges on the Foreign Intelligence Surveillance Court, appointed to staggered 7-year terms, appear to have a heavy workload: an average of over 30 applications per week. The first Page application ran 66 pages, including footnotes.
• But the judges have legal staff as liaisons with government lawyers to move things along -- out of public view.
• Court defenders argue that things were even worse before: Spying on U.S. citizens was not subject to any judicial scrutiny at all until the Foreign Intelligence Surveillance Act of 1978.