Tuesday night, The Guardian reported a shocking story alleging that the FBI asked the US Foreign Intelligence Surveillance Court for permission to spy on four members of Donald Trump's political team who were suspected of having suspicious contact with Russian government officials.
I say "shocking" not because the FBI would be interested in surveilling Trump's team, but because, according to The Guardian, the court said no.
Here is the relevant paragraph from The Guardian's article (which followed a flurry of stories about an unsubstantiated report circulating around Washington about Trump's Russia ties):
The Guardian has learned that the FBI applied for a warrant from the foreign intelligence surveillance (Fisa) court over the summer in order to monitor four members of the Trump team suspected of irregular contacts with Russian officials. The Fisa court turned down the application asking FBI counter-intelligence investigators to narrow its focus. According to one report, the FBI was finally granted a warrant in October, but that has not been confirmed, and it is not clear whether any warrant led to a full investigation.
Named after the Foreign Intelligence Surveillance Act of 1978, the FISC has been used to rubber-stamp warrants that grant the US intelligence community broad surveillance powers under amendments to that original law passed in 2008. Court proceedings are secret; the first time the public ever saw one of its decisions was when Edward Snowden revealed the existence of the PRISM program in 2013 by showing an NSA warrant to surveil the communications of Verizon customers.
Though we don't have a great understanding of what happens at the FISC, we do know that when the federal government asks for a warrant to spy on someone, that it always gets its wish. According to the Department of Justice's official numbers, of the thousands of applications made by the federal government to FISC, none have been denied since 2009. Rarely, the court has asked the government to modify its case. In 2013, the US made 1,588 applications; 34 were modified. In 2014, it made 1,379 applications; 19 were modified. In 2015, it made 1,457 applications; 80 were modified.
The anonymous sourcing of The Guardian article leaves several options, one of them much more plausible than the other considering what we know about FISC. It is highly unlikely that FISC "turned down" the FBI's application, because FISC has never turned down any warrant request that we know of. If it refused to grant a warrant in this specific instance, it would be completely unprecedented in known history of the court. More likely, then, is an October HeatStreet report that the FBI was forced to change its warrant application (which is itself a rare occurrence) before eventually getting it approved.
The FBI's interest in surveilling a presidential candidate's political team is notable for obvious reasons, but it's also worth calling attention to the court's apparent resistance in this case. Civil liberties groups believe—and Snowden's documents reveal—that FISC has been used as a rubber stamp by intelligence agencies to get legal cover to conduct mass surveillance. But if
reports are accurate, when the FBI decided to go after the rich, powerful, and politically well-connected, it was met with pushback. If only the rest of us could be so lucky.
Clarification: An earlier version of this article did not include enough detail about the last time the FISC rejected a warrant request. It was in 2009.