Peter F. Vaira.

On Dec. 17, 2019, a Foreign Intelligence Surveillance Court (FISA) judge issued what The New York Times described as an "extraordinary public order" criticizing the FBI for misusing the process to obtain warrants for electronic surveillance on an American citizen (refer to In re Accuracy Concerns Regarding FBI Matters Submitted to the FISC, Docket No. Misc. 19-02). The FISA court was created by the Foreign Intelligence Surveillance Act, hence the term FISA court or FISA judge.

Today's article is a primer on the required procedure for obtaining warrants from the FISA court to install wiretaps and electronic hearing devices in the investigation of certain persons, and a guide to understanding the current allegations that the FBI has misused that procedure to gain permission to use secret electronic surveillance as described in the foregoing order. I will begin with a short background.

When the FBI seeks a warrant to install a wiretap on a private phone, or install a secret listening device in a private home or office, in order to obtain evidence of a crime, the investigative agency must file an application for the warrant with a federal court judge. The initial process for the FISA court is the same as required for obtaining electronic surveillance warrants in federal district courts for criminal investigations. The investigative case agent must file an application for a warrant with a federal judge of that particular court. FISA court judges are federal court judges from across the country sitting by designation. The investigative agent is generally overseen by the relevant U.S. attorney or Department of Justice attorney.

In the FISA court, the affiant must allege that the targeted person is a foreign national or an American citizen operating on behalf of a foreign power. In both the federal district court and FISA court, this is a secret procedure and the judge must rely on the credibility of the information in the affidavit. Hearsay is often included, including information about past events and information supplied by unnamed confidential informants, whose reliability is sworn to by the affiant. As this is an ex parte process, the court must rely upon the professionalism and integrity of the affiant. U.S. Magistrate Judge Timothy R. Rice of the Eastern District of Pennsylvania, who has issued numerous search warrants in his career, said, "The candor of the affiant is absolutely critical to this process. Information the affiant omits from the warrant can adversely affect the reliability of the information he submits. This is not an adversary proceeding, and there is no separate investigation of the affiant's information before the warrant is issued. Failure to maintain this high standard will destroy the system."

In a criminal matter, the author of the application must file an affidavit in which the affiant relates information to convince the federal judge that there is probable cause to believe that certain persons are committing federal crimes and the electronic surveillance will produce evidence of that crime. Consequently, if the electronic surveillance produces evidence of a federal crime, criminal charges are filed by the U.S. attorney. At the criminal trial in federal district court, the reliability of the information for the search warrant is often tested by defense counsel in an adversary hearing, and the matter is heard by the trial judge, not the judge who signed the warrant. The trial judge has the power to declare the warrant as improvidently issued, based upon problems with the integrity of the hearsay information supplied by the affiant.

The results of a FISA warrant are treated differently. The FISA court is a highly secretive court with judges from the various federal courts whose primary responsibility is to decide whether the U.S. government has enough evidence against foreign powers or individuals believed to be foreign agents to allow for their electronic surveillance by the intelligence community. It is the only court permitted to issue such warrants. The FISA court is not a criminal court and evidence obtained by its warrants is not tested in an open court proceeding. The results of the FISA warrants are used by intelligence and security services to discover secret foreign agents or efforts of foreign powers to penetrate the security of the United States. The procedure for obtaining a FISA warrant has the same requirements as required for a warrant to obtain criminal evidence. The affiant has the same legal and ethical responsibility of candor to the court as one who is applying for a criminal warrant. The key difference is that the FISA warrant does not result in an adversarial hearing.

The current controversy is with FISA warrants that were obtained to surveil the actions and conversations of an American citizen, who the affiant alleged was operating on behalf of a foreign power. The problem is not that the FBI was mistaken in starting the investigation, but what the FBI did or did not do in pursuing the investigation. A separate investigation by the inspector general of the Department of Justice found that the FBI agents applying for the warrants continually supplied misleading information to the FISA judge, knowing it was misleading on a number of occasions and took steps to mischaracterize it. Special Counsel Robert Mueller, in his investigation, subsequently found that the American citizen who was the subject of electronic surveillance was not acting as a foreign agent. The inspector general of the Department of Justice found that early in the investigation the FBI had substantial information in its files that indicated the FBI's original premise was incorrect, and that the agency continued to pursue electronic surveillance notwithstanding this conflicting information.

The actions of the FBI violate unwritten rule No. 1 for federal prosecutors and federal agents: do not omit or mischaracterize critical information supplied to a federal judge in applying for federal search warrants. An example of the reaction to such conduct is the strongly worded court order, cited above, issued Dec. 17, 2019, by U.S. District Senior Judge Rosemary M. Collyer of the District of Columbia, the FISA judge who signed the warrants. She detailed various acts by FBI agents, and one Department of Justice attorney, that misled her when she signed the warrants. Collyer said, "the frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable." She ordered the FBI and Department of Justice to make swift changes in the application process. A FISA court judge, as a federal court judge, has the power to hold those agents in contempt and fine them for unprofessional conduct. She very well may do so based upon the incidents described in her order.

Unfortunately, this is not the first such problem the FISA court has had with the FBI. The following is reported in an article in the 41 Suffolk Law School Law Review 445, 2007-2008, by Stephen Gard, "In 2002 the FISA court reported that in 2000 the federal government admitted to 'misstatements and omissions of material acts' in '75 FISA applications related to major terrorist attacks directed against the United States.' As a result, the court refused to accept inaccurate affidavits from FBI agents and even prohibited one FBI agent from appearing before the court as a FISA affiant," citing In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611, 620 (FISA Ct. 2002,) abrogated by In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002).

The inspector general's report and Collyer's order has produced calls for more strict review of FISA court applications and FISA court procedure, and even calls for removing the FISA court from federal procedure. This controversy is only further proof that the FBI and Department of Justice need a long overdue critical review of their basic operational procedure and structure.

Peter Vaira is a member of Greenblatt, Pierce, Funt & Flores. He is a former U.S. attorney and the author of a book on Eastern District practice. He acts as special hearing master for Pennsylvania courts and clients. He can be reached at [email protected].