Fact-Checking FISA Applications
The Foreign Intelligence Surveillance Act (FISA) authorizes the Federal Bureau of Investigation (FBI) to subject Americans to uniquely invasive electronic monitoring, so long as the Foreign Intelligence Surveillance Court (FISC) approves the surveillance application. But in 2020, the government announced that two of the FISA applications it submitted to surveil a former 2016 Trump campaign aide were based on false statements and omissions—revealing systemic deficiencies in the accuracy of FISA applications, which has long relied on the integrity of FBI and Justice Department procedures alone. In the ordinary criminal context, defendants would have the ability to challenge the truth of the application predicating their Fourth Amendment search under Franks v. Delaware, but when defendants are prosecuted with evidence derived from FISA-authorized surveillance, courts have uniformly interpreted the statute to abrogate defendants’ rights to a Franks hearing. This Note argues that courts should use the procedures authorized by the Classified Information Procedures Act (CIPA) to facilitate Franks hearings for these defendants in order to reveal the incidence of falsely premised FISA surveillance. While Franks hearings in this context would be unlikely to vindicate the individual interests of FISA-surveilled defendants, they would offer a systemic deterrent effect, alerting the FISC to flawed applications and providing the Court an opportunity to discipline the FBI agents responsible.