The Foreign Intelligence Surveillance Act has a history founded in perceived abuses of surveillance under the pretext of national security. Its latest use during a domestic election highlights civil liberty issues raised by its opponents and has inflamed an already volatile political environment. There are serious concerns about the possible politicized use of foreign intelligence due to numerous reports laying out a White House closely involved in an investigation of its domestic political opposition. Further, the leaks surrounding the FBI’s investigation of Russian interference are extremely troubling. The investigation’s supposed purpose is to identify threats to national security and exposure of its details represents a major breach in national trust and the law. That they have appeared regularly in the paper suggest it is a politically motivated investigation rather than a serious inquiry. Additionally, beyond a FISA warrant, the Obama administration used indirect methods to monitor the Trump campaign, from reverse targeting to obtaining foreign government intelligence reports.

The Foreign Intelligence Surveillance Court, FISC, was created in 1978 to act as a safeguard against surveillance abuses by the Executive branch. Under the guise of national security, the Nixon administration monitored communications of US individuals without obtaining warrants and, in response, congress passed the Foreign Intelligence Surveillance Act, FISA, to limit and monitor future abuses. The FISC requires the government to apply for a warrant in order to surveil US citizens and domestic foreign nationals for national security purposes. The proceedings of this court are classified and hidden from the public in order to prevent possible spies from knowing they are being monitored. The early iteration of this law had a limited focus on national security and specific surveillance methods, but as technology progressed and the political landscape shifted, substantial changes were made to its design. Most significantly, in response to the 9/11 attacks, intelligence gathered under FISA went from exclusive use for foreign counterintelligence to include domestic criminal cases. In opening the door to criminal cases, the FBI needed a means to access the information in an efficient manner and this shift helped open the door to the modern day abuses.

The government does not need a warrant when it monitors foreigners abroad, including their communications with American citizens. However, when the government targets domestic foreign nationals or American citizens it suspects of being a foreign agent, it needs a FISA warrant approved by FISC. The court has been historically very permissive, yet it reportedly denied two warrant requests concerning the Trump campaign. Non-targeted Americans whose communications are caught by the eavesdropping have their information minimized from reports unless it is required to understand the foreign intelligence or it shows evidence of criminal wrongdoing. There are complaints that the NSA only needs to ‘reasonably’ believe that those included weren’t American citizens in order to avoid masking. It is a rather low level of certainty, but if a mistake is found the information is immediately minimized. The more relevant concern is the fear of ‘reverse targeting,’ or more plainly, surveilling foreign officials in order to monitor US citizens with whom they are communicating. The law specifically prohibits this behavior and the minimization attempts to render it useless. However, in 2011 the Obama administration changed the minimization procedures to create what is known as the ‘backdoor search loophole.’ The change allowed the administration to query the raw data collected without the masking in place. Even a defense of the FISA admits, ‘the threshold for querying a U.S. person within the data collected is relatively low. To affirmatively query the data collected about a U.S. person, all that is needed is a determination that the search is reasonably likely to return foreign intelligence information. “Reasonably likely” is an especially easy standard to meet.’ In other words, the agency could search out a specific person and learn which intelligence reports they were mentioned in. Then, they could request ‘minimized’ reports with the knowledge that their target was either a subject or participant in the various conversations. This authority was again expanded at the very end of Obama’s term, allowing multiple federal agencies beyond the FBI the same power to search the unmasked database.

As to the use of these programs against Trump and his campaign, not everything is known, but what has come to light is extremely concerning. As mentioned, career intelligence agents determine whether it is necessary to minimize information of US citizens on their reports per the standards set by the FISC. It was on these reports that Obama’s former NSA Susan Rice overruled their determination and requested that Obama’s political appointee at the NSA unmask a Trump official’s name in multiple reports. One report suggests that her initial requests were objected to by career officials, but they were overturned when she went over their heads. Despite some claiming her actions were normal and regular, it has sparked enough concern that both the Senate and House have expanded their investigations to include possible inappropriate use of national intelligence. Further there is very good reason to believe that this was not the first time the Obama administration used foreign intelligence to monitor domestic political concerns. First reported by the Wall Street Journal, the Obama administration monitored domestic opponents to the Iran deal by monitoring their communications with Israeli officials. This account is furthered by another report, which also explains minimization is far less stringent when monitoring foreign officials communications between themselves. So, if a US congressman spoke with an ambassador, his communications would be thoroughly masked, but when the ambassador reported this conversation to his government, that communication would contain far less minimization.

Beyond the White House’s actions, it is important to consider the recent leaks of FISA warrants and intelligence. In the case of the warrant on Carter Page, the leaks are either the last gasp of a failed, politicized investigation trying to bring down Trump or a major violation of national security by revealing US knowledge of a Russian agent to Russian intelligence services. Contrary to former administration officials denials of the administration’s participation, this warrant requires extensive input from Obama’s Department of Justice. Similar things can be said for the leaked transcript of Michael Flynn and Russian ambassador Sergey Kislyak. Not only are these leaks of classified information felony offenses, but if the investigations are truly sincere, the leaks exposed national secrets and undermined national security. Blanket denials of the Obama administration monitoring the Trump campaign have been shown to be complete lies. Not only did the Obama administration oversee and approve a warrant on a member of the Trump campaign, they pushed the legal envelope in their use of the national intelligence apparatus to spy on its domestic political opponents. Further, in the 24th hour they eliminated civil protections for classified surveillance in order for it to be spread throughout the government and which allowed it to be widely leaked. The provision undergirding the FISC comes up for review at the end of the year and no matter the end results of the ongoing investigations, it is imperative to make significant changes to the current structure. The entire program has come under fire and risks repeal, but without any alterations it is a near certainty that the Obama administration’s pioneered approach to monitoring domestic opponents will continue and escalate.