Russell Hebets Feb. 18, 2019

Controversial Beginnings

The investigation into U.S. President Donald Trump’s relationship with Russia has controversial beginnings: a warrant from the Foreign Intelligence Surveillance Court (FISC) authorizing the secret observation of people close to Trump. Regardless of one’s feelings about this investigation in particular, warrants issued under the Foreign Intelligence Surveillance Act (FISA) in general animate the dispute over where the boundary should fall between the state’s power and an individual’s freedom.

Spying on Spies

To understand FISA warrants we need to know the history of thwarting foreign intelligence operations against the U.S., an endeavor whose scope increased immensely around 1920 at the demand of J. Edgar Hoover. For decades after his appointment to direct the Bureau of Investigation, which in 1935 became the FBI, Hoover collected information with little oversight or none at all about American citizens he suspected of having communist sympathies. He created a registry of these people, his so-called enemies list, that famously grew to include members of the civil rights movement in the 50s and the anti-war movement in the 60s. Hoover’s obsession with finding the Soviet agents that he thought—correctly, it turns out—were trying to penetrate American government lasted his lifetime and makes his legacy ambiguous: he is the architect of many valuable law enforcement techniques still in practice today, and he also violated the constitution over and over in his determination to catch foreign spies.

FISA Passed

And so, in 1978, responding to the discovery of such unlawful surveillance as Hoover conducted, legislators put into effect the Foreign Intelligence Surveillance Act to restrict the work of the FBI and similar agencies. Under the act the FISC was established to rule on requests for surveillance warrants in cases of suspected harmful foreign allegiance, binding the nation’s intelligence community to show cause for breaches of citizens’ privacy that before it conducted wholesale. Obviously, however, the constitutional protection the court affords is only as good as the court’s decisions, and here we find the center of the FISA controversy. Those opposed to FISA spying are likely to accuse the justice system of corruption; they would decry the secrecy of the court’s proceedings and point to the fact that while some 35,000 warrant requests have been brought before the court, only 12 have been rejected. Defenders of the process would respond that such statistics show nothing except how diligent federal investigators are in establishing cause to request warrants in the first place. There are compelling elements in the arguments on both sides, and the Trump investigation has brought them all forward at once. The nation will be watching closely to see how the investigation unfolds.

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