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HPSCI Memorandum Sparks Debate over
FISA Application Requirements
Updated February 15, 2018
The recent disclosure by the House Permanent Select Committee on Intelligence (HPSCI) of a
declassified memorandum written by HPSCI majority staff has sparked a renewed conversation about the
government's longstanding authority to conduct electronic surveillance on U.S. citizens pursuant to the
Foreign Intelligence Surveillance Act of 1978 (FISA), as amended.
FISA was designed to provide a statutory process to oversee the use of electronic surveillance for foreign
intelligence purposes that mirrored the warrant process required for electronic surveillance in criminal
investigations. Under FISA, the government must generally apply for and receive an order from the
specialized Foreign Intel]igence Surveillance Court (FISC) authorizing electronic surveillance. An order
may be issued based on the court's finding that probable cause exists to believe that the target of
surveillance is an agent of a foreign power. Because of the national security information used in such
applications, both the submissions to and orders from the FISC are generally classified.
The HPSCI majority memorandum alleges that the Federal Bureau of Investigation (FBI) applied for an
order authorizing surveillance of Carter Page, a U.S. citizen who served as volunteer advisor to the
Trump presidential campaign, using information gathered by a source without including adequate
information indicating the source had an anti-Trump bias in the FISA application. The application for
surveillance was approved by the FISC and renewed three separate times. On Monday, February 5, 2018,
the HPSCI voted to release a second memorandum reportedly drafted by HPSCI ranking-member Adam
Schiff rebutting the claims made in the first memorandum. This second memorandum is currently being
considered for declassification by the President, who has requested certain redactions based on
suggestions from the Department of Justice.
A central factual question that appears to be disputed by the competing memoranda is the degree to which
information potentially undermining the FISA application's reliability was omitted from the application.
Although CRS is not in a position to answer that factual question, this Sidebar endeavors to explain the
legal requirements regarding the government's obligation to include countervailing information in FISA
applications.
The FISA statute itself does not expressly address whether information regarding informants' bias or
reliability must be included in an application to the FISC. Instead, the statute requires the application to
demonstrate, to the FISC's satisfaction, that probable cause exists to believe that the target is an agent of a
Congressional Research Service
https://crsreports.congress.gov
LSB10076
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