FISC Non Story

Here we go again, trying to clean up a mess left behind by irresponsible and uninformed journalists.  Yahoo breathlessly informs its readers that the Foreign Intelligence Surveillance Court (FISC) approved all search warrant and wiretap requests submitted to it in 2014 and 2015, story here: rubber-stamp. This is supposed to be troubling.

The FISC has a limited clientele and any work product destined for that court is subject to a high level of scrutiny.  Typically, the investigative unit has to make the case internally to even start the process of drafting a warrant.  Once a warrant and associated affidavit is drafted it goes through review at the agency level.  If it clears that hurdle it is then reviewed at the local United States Attorney’s office. Next it’s on to the specialists at the Justice Department and their agency counterparts in DC.  From there it goes to the policy wonks and management.  Assuming that the affidavit passes all those reviews, it is then referred to the FISC court.  Despite the extensive review the court required that 99 affidavits be modified in some  manner, prior to approval.

New York City and NYPD are unique in that New York law enables NYPD to obtain a search warrant for a wiretap in twenty-four hours.  In Texas we relied on the Feds.  The process from inception to activation was typically measured in months.  The delay is caused by multiple layers of review at the federal level.  Since anti-terror investigations contemplated searches and wiretaps not covered by New York law, NYPD was forced into the federal forum. In 2008 NYPD Commissioner Raymond Kelly and Attorney General Mukasey engaged in several heated exchanges about the delays, duplication of effort and waste of time inherent in the federal process, reported here, NYPD verses FEDS and FISC.

I worked as a narcotics investigator for fifteen years.  I have drafted over 1000 search warrant applications and presented them in both state and federal court. The federal search warrants were drafted in cooperation with and endorsed by an Assistant United States Attorney (AUSA).  Out of all those applications, I have had two search warrant applications rejected, both by the same Federal Magistrate Judge.

The key to a search warrant application is setting forth sufficient probable cause to believe that evidence of an offense is to be found at a specifically described place and that that place or evidence is under the control of a specific individual. The vast majority of the time the fact situation is fairly straightforward and the officer gets no where near the outer limits of acceptable probable cause.  This means that 99% of the time I was confident that the judge would sign my application. On two occasions the AUSA and I went to the Magistrate Judge and laid out our arguments. We left empty handed.  I still think we had enough probable cause, but I also didn’t disagree with the judge. His assessment is the one that counts.

I tended to avoid judges who had a reputation for signing anything. I guess I’m goofy because I believe in the check and balance built into the system by interjecting a neutral detached magistrate. A bad search warrant does nobody any good.

This a long way of saying that I find nothing unusual in the fact that the FISC has approved all applications put before it.  It is not surprising that with the level of prior review by the investigative agency, local United States Attorney, headquarters of the investigative agency, specialists at the Department of Justice (DOJ) and finally at the highest levels at DOJ, that the FISC is satisfied with the affidavit placed before it.