Mueller, Memo, and the FISA Court

In one class there is a discussion of FISA and the NSA.  I'm going to assume some of you have at least read headlines about the latest back-and-forth political ping pong on the Mueller investigation, the GOP House roar over an FBI memo that suggests the the bureau and the Justice Department abused their authority to obtain a warrant to spy on a former Trump campaign adviser, Carter Page

In case you live in a cave, or only care about the latest point spread on the Superbowl game, here's a recap:

On Wednesday,  the FBI was given a day to read the memo and then Christopher A. Wray, the bureau’s director, clashed publicly with President Trump for the first time on Wednesday, condemning a push by House Republicans to release a secret memo that purports to show how the bureau and the Justice Department abused their authority to obtain a warrant to spy on a former Trump campaign adviser, Carter Page. 

Mr. Trump wants to see the memo released, telling people close to him that he believes it makes the case that F.B.I. and Justice Department officials acted inappropriately when they sought the highly classified warrant in October 2016 on Carter Page. 

The warrant centers on a classified wiretap application the government submitted to a judge in the fall of 2016 that targeted Carter Page, a onetime Trump campaign official who had traveled to Russia in July 2016 and was preparing to return there that December, along with renewal applications. 

The memo has come to the forefront in a string of attempts by Mr. Trump’s allies to shift attention from the special counsel investigation into Russian election meddling and toward the actions of the investigators themselves. Republicans in Congress and in conservative news media have asserted that the memo will show political bias in the early stages of the Russia inquiry.

What does a wiretap have to do with FISA? 
The Foreign Intelligence Surveillance Act, or FISA, signed into law in 1978, requires the government, when eavesdropping on communications on domestic soil for national security purposes, to obtain permission from a judge on the Foreign Intelligence Surveillance Court. The judge must agree that the target is probably an agent of a foreign power and will probably use the specific email accounts or phone numbers that the Justice Department wants to wiretap.

What standard must be met to get a FISA wiretap?

To issue a FISA order authorizing investigators to eavesdrop on an American, a judge must agree that there is reason to believe the target was knowingly engaging in clandestine intelligence activities for a foreign power that violate American criminal laws — or is knowingly aiding or conspiring with someone else who is doing that. The article goes on to say that judges rarely deny FISA applications; that the FISA Court is a rubber stamp. Defenders point to the layers of high-level review in the Justice Department

What is in a FISA application?
A typical application ranges from 30 to 100 pages and centers on a factual affidavit by a senior F.B.I. agent working on the investigation at headquarters, which in turn compiles information submitted by other agents in the field. This document primarily explains what evidence the bureau has gathered to establish that a target is probably a foreign agent.

A typical application would also include a legal memorandum by a career Justice Department intelligence lawyer; a certification explaining the purpose and necessity of the requested surveillance and signed by the F.B.I. director; and approval for the broader package signed by a senior, Senate-confirmed Justice Department official — the attorney general, the deputy attorney general or the head of the National Security Division.

Occasionally the package may be supplemented with other materials. For example, it may include a news article to show that an investigation has become public knowledge, which could make it more likely that a target is taking steps to conceal his activities.

If you want to know more about what the Republican memo says, and the political reasons for revealing it, as well as reasons for not revealing government secrets for fear that it undermines national security, then read "How to get a wiretap to spy on Americans, and why that matters now" in the NY Times.  Also read the related articles surrounding this one.  For example, 

• About 25% of Trump’s Re-election Spending Continues to Go to Lawyers FEB 1

• Mueller Zeros In on Story Put Together About Trump Tower Meeting JAN 31

• F.B.I. Condemns Push to Release Secret Republican Memo JAN 31

• The Real Aim of the Nunes Memo Is the Mueller Investigation JAN 30

If you have any questions about this case, or just want to add your opinion, including if you think the NY Times is "fake news," feel free to comment below.