In 1978, the Foreign Intelligence Surveillance Act was enacted, bringing with it the FISA Courts and FISA Warrants. The procedure of surveilling U.S. citizen under FISA offers a much lower hurdle for the government to overcome before they’re allowed to listen in on what Americans are saying.
The regular warrant, or a standard federal criminal warrant application, and process go back to 1968. Then the Wiretap Act of that year’s omnibus crime bill that, in addition to providing penalties for illegal wiretapping or eavesdropping on electronic communications, also outlined a process for law enforcement to do so legally. The legislation delineated the requirements of policing agencies before they could be granted a warrant to be consistent with our Fourth Amendment guarantees.
The Fourth Amendment to the United States Constitution requires probable cause be supplied to a judge who issues a warrant for searches and seizures. Fans of The Wire TV show have a masterclass on what’s required to meet the requirements. Essentially there are three prongs for the government to meet before they get their warrant.
- Probable cause that a crime has been or is about to be committed.
- Probable cause that the warrant is likely to intercept communications that will prove that crime. If a suspect is just going over their Super Bowl party menu that’s not relevant and cannot be listened to. The suspect needs to be communicating about the crime(s) or providing evidence about them.
- Probable cause that the wire-tapping is necessary or exhaustion is present. They have tried other means of investigations that are less burdensome or invasive, or it is impossible for them to do so.
After an application meeting these burdens is submitted, the court rules, given the totality of the circumstances to decide whether the burden is met and to grant or refuse the warrant.
Under a FISA court, none of those hurdles are present, and warrants are granted more easily. The only requirement is that the surveillance is of an authorized person or group for purposes relating to the gathering of foreign intelligence or preventing terrorism.
So, Carter Page can be accused of being a foreign agent. All they have to say is that “We have reason to believe this person may be a foreign agent,” not, “We know he is,” or, “We have conclusive proof,” but, “We have reason to believe that he may be.” That’s all you need. All those other qualifications go by the wayside, which, as you might imagine, is why it’s much more popular an option for somebody who’s looking to listen in on somebody else. Why go through all the effort to comply with the stringent requirements to secure a Title III warrant when a FISA warrant is so much easier, and – no one will ever know about it?
Secrets and Disclosures
That’s not true with respect to a regular warrant or a Title III warrant, where at the end of the investigation all sorts of information about the subjects, suspects, and evidence will be released. Warrants themselves, and also the fact that a warrant was issued, and the applications are usually released. Sometimes transcripts or recordings of intercepted communications themselves are released. None of that’s true for FISA warrants.
FISA courts don’t even reveal the simple presence of a warrant, ever. Forget about any of the other disclosures surrounding a Title III warrant.
Another feature of the FISA warrant for government agents – the FISA court rubber stamps the warrant applications! Like a test investigators cannot fail. From 1979 to 2016 there were 39,850 warrant applications in FISA courts. There have been 51 denials. 34 of those 51 denials came in 2016 alone.
Is this a court jealously guarding the privacy and liberty of us and our fellow Americans?
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