HPSCI Memorandum Sparks Debate over FISA Application Requirements

HPSCI Memorandum Sparks Debate over FISA Application Requirements

Legal Sidebari

HPSCI Memorandum Sparks Debate over
FISA Application Requirements
Updated February 15, 2018
The recent disclosure by the House Permanent Select Committee on Intelligence (HPSCI) of a
declassified memorandum written by HPSCI majority staff has sparked a renewed conversation about the
government’s longstanding authority to conduct electronic surveillance on U.S. citizens pursuant to the
Foreign Intelligence Surveillance Act of 1978 (FISA), as amended.
FISA was designed to provide a statutory process to oversee the use of electronic surveillance for foreign
intelligence purposes that mirrored the warrant process required for electronic surveillance in criminal
investigations. Under FISA, the government must generally apply for and receive an order from the
specialized Foreign Intelligence Surveillance Court (FISC) authorizing electronic surveillance. An order
may be issued based on the court’s finding that probable cause exists to believe that the target of
surveillance is an agent of a foreign power. Because of the national security information used in such
applications, both the submissions to and orders from the FISC are generally classified.
The HPSCI majority memorandum alleges that the Federal Bureau of Investigation (FBI) applied for an
order authorizing surveillance of Carter Page, “a U.S. citizen who served as volunteer advisor to the
Trump presidential campaign,” using information gathered by a source without including adequate
information indicating the source had an anti-Trump bias in the FISA application. The application for
surveillance was approved by the FISC and renewed three separate times. On Monday, February 5, 2018,
the HPSCI voted to release a second memorandum reportedly drafted by HPSCI ranking-member Adam
Schiff rebutting the claims made in the first memorandum. This second memorandum is currently being
considered for declassification by the President, who has requested certain redactions based on
suggestions from the Department of Justice.
A central factual question that appears to be disputed by the competing memoranda is the degree to which
information potentially undermining the FISA application’s reliability was omitted from the application.
Although CRS is not in a position to answer that factual question, this Sidebar endeavors to explain the
legal requirements regarding the government’s obligation to include countervailing information in FISA
applications.
The FISA statute itself does not expressly address whether information regarding informants’ bias or
reliability must be included in an application to the FISC. Instead, the statute requires the application to
demonstrate, to the FISC’s satisfaction, that probable cause exists to believe that the target is an agent of a
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foreign power or a foreign power, and that each of the facilities at which surveillance will be directed is
being used, or is about to be used, by an agent of a foreign power or a foreign power. Declassified FISC
decisions regarding the requirements of probable cause in the FISA context are not plentiful, and none
appear to speak directly to the issue of when information regarding an informant’s bias is required. Nor
do these FISC decisions provide a clear, generally applicable framework for assessing the circumstances
when an informant’s bias would render the information unreliable.
However, the broader body of case law discussing criminal warrants does broach the subject of how
omissions in warrant applications can undermine probable cause. It may be debated how similar the
application of the Fourth Amendment in the foreign intelligence context is to its application in the context
of criminal law enforcement. But the FISA statute uses the term “probable cause” to describe the
threshold needed to support a FISA order. And, a committee report for one of the competing bills that
ultimately was enacted as FISA described the intended role of FISA judges to be “the same as that of
judges under existing law enforcement warrant procedures.” Accordingly, it may be helpful to look to
Fourth Amendment jurisprudence in the criminal context to help understand what information regarding
informants’ bias is required to establish probable cause in FISA applications.
Historically, in the domestic criminal law context, probable cause required courts to engage in a two-
pronged test analysis of information provided by informants that was included in an application for an
arrest or search warrant. First, the application had to inform the court of reasons to believe that the
informant was believed to be credible or reliable. Second, the application must provide the court with
information establishing the informant’s “basis of knowledge” regarding the facts asserted.
However, in its 1983 decision in Illinois v. Gates, the Supreme Court eliminated this “rigid” two-pronged
test in favor of a more “fluid” examination of the “totality of the circumstances.” As an example, the
Court hypothesized that under the latter analysis, “even if we entertain some doubt as to an informant's
motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event
was observed first-hand, entitles his tip to greater weight than might otherwise be the case.”
Although no specific statements regarding an informant’s credibility may be categorically required in
warrant applications following Gates, the Supreme Court has also held that a finding of probable cause
may be rendered invalid if it is discovered that such finding was based on an application that included a
false statement, knowingly and intentionally, or with reckless disregard for the truth. Courts of appeals
applying this standard have further held that the omission of facts which “would have vitiated probable
cause” or information that is “clearly critical to a finding of probable cause” gives rise to an inference of
recklessness. But the failure to include information demonstrating that the informant has an ulterior
motive for providing the information is not always “fatal to the validity of a warrant.” For example, in
United States v. Wold, the U.S. Court of Appeals for the Eighth Circuit held that the failure to disclose the
fact that an informant’s claims, which formed the basis for an application for a search warrant, were made
as part of a leniency deal and had been paid for by the police was not misrepresentation rendering the
issued warrant invalid. The court held that the warrant was adequately supported in part because the
informant’s statements had been separately corroborated by other information in the application.
Furthermore, the court found that “the warrant application as a whole was supported by probable cause
even if all the additions and deletions for which the [defendants] argue were made.”
When determining whether the omission of a piece of information is of sufficient severity to undermine a
finding of probable cause, courts still rely on the same “totality of the circumstances” analysis described
in Illinois v. Gates. In other words, if an application that would have included the omitted information
would still support a finding of probable cause, then the omission of such information does not require
invalidation of the underlying warrant. Without access to the entire application underlying the Carter Page
surveillance orders, it is not possible to evaluate the degree to which the omission of information relating
to the informant’s alleged bias was relevant to the FISC judge’s finding of probable cause under the
“totality of the circumstances” test described above.

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Lastly, readers who have been following FISA news may recall that the “programmatic surveillance”
authorized under Section 702 of FISA was recently reauthorized until December 31, 2023. Section 702
does not require the FISC to make individual determinations of probable cause before acquiring the
communications of non-U.S. person targets and the HPSCI majority memorandum clearly states that the
Carter Page order was not sought under Section 702. However, recent amendments to Section 702
require, in certain circumstances, the FBI to seek an order supported by probable cause when querying
information acquired under Section 702 using a query term associated with an identifiable U.S. person in
the course of a predicated criminal investigation that is unrelated to national security. Therefore, concerns
about the presentation or omission of information provided to the FISC in proceedings to establish
probable cause may still be relevant to Congress when exercising oversight of executive activities under
Section 702.
Note: An earlier version of this post omitted a description of the types of investigations in which the FBI
is required to obtain a court order before querying Section 702 information.

Author Information

Edward C. Liu

Legislative Attorney

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