Foreign Intelligence Surveillance Act, the government’s secret court, used on a president

The just-released House Intelligence findings regarding the dossier on President Donald Trump documented it as having been assembled by anti-Trump British spy Christopher Steele from Russian disinformation, paid for by the Democratic National Convention and the campaign of former presidential candidate Hillary Clinton to the tune of $160,000 as opposition research in the presidential election and did not support alleged Putin-Trump collusion in the election. The dossier was used by the FBI and former President Barack Obama’s Justice Department to get a warrant from the Foreign Intelligence Surveillance Act to spy on the opposing Trump campaign to destroy Trump’s candidacy and, if elected president, to provide the ammunition to have him impeached thereafter. The Grassley-Ghaham Senate Intelligence Memo documents more fully the above.

All of these findings renew interest in the government’s secret FISA Court, which has been opposed to by Constitutionalist, Libertarians and many Democrats for a long time. Ironically, it was created as a response to former President Richard Nixon’s usage of federal resources to spy on political activist groups during his tenure as president, which likely violated the Fourth Amendment of the Constitution. But now apparently, it has been used by the Democratic Party to spy on a contending presidential candidate before and after his election – something far worse than Nixon’s Watergate.

Initiated by Democratic Sen. Edward Moore “Ted” Kennedy of Massachusetts and signed into law by Democratic President Jimmy Carter, The 1978 Foreign Intelligence Surveillance Act created the secret court with bipartisan support. The government’s surveillance of its own citizens, which was formerly, until now, opposed by most Democrats, dates back 39 years. I told my students of this court for at least the past 33 years.

Ironically, the solution to Nixon’s spying on political activists groups was legalizing and extending it to individuals through FISA, creating an even greater violation of the Fourth Amendment. Few voices opposed giving the government extra spy-power during the “Cold War” when it seemed that the whole planet was falling under the influence of communism but, once legalized in 1978, the surveillance escalated.

Liberal CBS News commentator Dan Rather, in his “Eye on America,” was one of the first to speak out on the intricacies of this secret court. In 1994, he correctly argued that all federal courts are supposed to be open, that the Constitution has no place for secret courts.

He said, “Chances are you have never heard of this court because it does operate in secret.”

The FISA court “holds no public hearings, classifies its rulings top secret and has wide freedom to order domestic spying in the name of national security.” Alan Deshowitz, a defense attorney at the time, was cited as having said, “The idea of there being a secret court in America is so un-American, and the end result is that the rights of American citizens are being violated by this court. What is at stake here is the liberty of the American people. Secrecy and liberty are incompatible.

Rather said, “Behind the stone walls of the Justice Department’s sixth floor, the court sits in an ultra-high security vault, guarded by impenetrable double doors. There, seven federal judges hear surveillance requests from the FBI, the CIA and the Department of Defense. And it appears the court has never heard a request it didn’t like. Over the years the government has asked for 7,500 surveillance warrants. The number refused by the court is zero. The government has never been denied.”

It gets worse.

“Questions under FISA aren’t quite as tough as they are in even an ordinary criminal case. In any other court for an ordinary surveillance warrant a judge must find that a suspect is involved in a crime,” Rather said. “Under FISA the standard is lowered to ‘may be involved.’ An ordinary wiretap runs 90 days. FISA taps can last a year. A suspect under ordinary criminal surveillance ‘must be told’ about it eventually but not under FISA. And finally, if prosecuted, a defendant is never allowed to see the top-secret warrant applications used against him.” Ironically, the program concluded, all this is happening “in a windowless vault just beyond Constitution Avenue.”

The U.S.A. Patriot Act of 2001 increased the number of FISA Court judges to 11, all appointed by the Chief Justice of the United States, none with congressional “advice or consent” as required by the Constitution, each serving fixed terms of seven years. In court, only the Department of Justice is allowed to provide information. Appeals of their decisions are made to a three-judge panel, which has assembled only twice in its history. One reason is that the court does not inform those upon whom it spied – not even the president of the United States. If someone does somehow find that they were spied upon, they cannot obtain the evidence from the FISA court that such actually happened.

Historically the court has approved 99.99 percent of the requests for spying. As of 2013 the secret court had reviewed 33,900 requests, denying, in its 35-year history, only 11 – so much for oversight.

The names of the 11 current FISA Court justices can be found at should readers wish to ask the judges why they authorized four separate requests to spy on Trump’s campaign and presidency.

The power of FISA must end. If Democrats can use the so-called justice system to authorize spying on a Republican president as shown, and there are not high penalties deterring others from doing so, it is only a matter of time before the Republican Party will do something similar to a Democratic president.

Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and to applying that knowledge to current events. He taught history and political science from this perspective for over 30 years at Taft College. Newspapers have permission to publish this column. To read more of his weekly articles, please visit

Leave a Reply