The Foreign Intelligence Surveillance Court (FISC) was set up in 1978 after congress pushed through the Foreign Intelligence Surveillance Act (FISA). The court is commonly referred to as the FISA court as a nod to the legislation it was created under. It is composed of eleven federal judges who are appointed by the Chief Justice of the country. Each judge serves a seven year term, while the appointments are staggered to increase continuity in the court and prevent vacancies. The judges must come from a minimum of seven distinct districts, and at least three of them must come from within 20 miles of Washington DC. They typically have each judge assume responsibility of the court for a week at a time on a rotating schedule.
This court has recently come into the sweat inducing glare of the national spotlight, after President Trump accused Barack Obama of committing a felony by illegally wiretapping his campaign. These accusations are extremely serious, because the President does not have the authority of unilaterally ordering a wiretap. This authority was used before the introduction of FISA in 1978, but after the act was introduced, this provided forced judicial oversight and a path for requests that can be documented and forced to meet standards of evidence approved by judicial review in the FISC.
There are currently unconfirmed reports from the BBC and other lesser known sources, that intelligence agencies in the Baltic states had recorded conversations insinuating that money was flowing from the Kremlin to the Trump campaign. According to these reports, the information was first passed to the CIA, and because they are not allowed to domestically investigate US citizens, the information was passed on to a joint task force made up of six agencies, including the FBI and DOJ. This, if true, led to a series of events as described below;
“Lawyers from the National Security Division in the Department of Justice then drew up an application. They took it to the secret US court that deals with intelligence, the Fisa court, named after the Foreign Intelligence Surveillance Act. They wanted permission to intercept the electronic records from two Russian banks.
Their first application, in June, was rejected outright by the judge. They returned with a more narrowly drawn order in July and were rejected again. Finally, before a new judge, the order was granted, on 15 October, three weeks before election day.
Neither Mr Trump nor his associates are named in the Fisa order, which would only cover foreign citizens or foreign entities – in this case the Russian banks. But ultimately, the investigation is looking for transfers of money from Russia to the United States, each one, if proved, a felony offence.”
WHAT DOES THIS ALL MEAN?
It’s impossible to predict the results of this explosive series of accusations and revelations, but here are the most plausible scenarios.
- Barack Obama flagrantly broke the law, and had people in the FBI or other intelligence agencies illegally wiretap the Trump administration as claimed. This would be the most shocking result, and in all likelihood isn’t realistic because of the secrecy, cooperation between agencies and steps needed to ensure success and prevent political fallout/legal charges.
- There was never an order by the Obama Administration, and there was never a FISA request sent to the courts. This scenario is also unlikely in my opinion, specifically because of how much attention this situation has received, and because of the leaked communications we have heard that among other things forced the resignation of Michael Flynn as National Security Advisor. This particular situation may have been routine surveillance of Russian officials that caught him on tape, but there are other claims of taped conversations or meetings that imply the incident is not isolated. There seems to be at least some members of Trumps administration and campaign team that have at the very least inadvertently come under scrutiny.
- There was a FISA request as documented by the unconfirmed stories, and after being denied, and then narrowing the request, they received permission to further investigate the charges. This is the most likely scenario, and would explain President Trump making the claim that Obama had ordered the “wiretapping”. The issue with Trump bringing this up however, is that Obama is more than likely not the one who made the FISA request, and if that request was actually granted, there was enough evidence that a judge made the decision to grant that request.
Regardless of the end results, this is going to be a pivotal story for the Trump Presidency, as well as for the trust we have in either his administration, or the national security apparatus we trust to keep us safe. If Trump’s claims are true as he stated, then the previous president committed a felony in tandem with several members of intelligence agencies who helped him do this. If they are entirely unfounded, there will be no legal fallout, but there will be a discussion about why our President would push baseless conspiracy theories in office that severely damage what trust remains between his administration and the public. If Trump’s claims are false about the method of the wiretapping, but there actually was an order from the courts granted to conduct surveillance on his associates, this is a huge story, which begins to reveal some flames behind all the smoke surrounding Russia. I don’t want to speculate anymore without seeing additional information, but this appears to be the start of largest challenge the administration has faced so far.