FISA explained | The Left is misleading on the Trump “wiretaps”

Like Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the "Wiretap Act"), the FISA legislation was the result of congressional investigations into Federal surveillance activities conducted in the name of national security. Through FISA, Congress sought to provide judicial and congressional oversight of foreign intelligence surveillance activities while maintaining the secrecy necessary to effectively monitor national security threats. FISA was initially enacted in 1978 and sets out procedures for physical and electronic surveillance and collection of foreign intelligence information. Initially, FISA addressed only electronic surveillance but has been significantly amended to address the use of pen registers and trap and trace devices, physical searches, and business records.

FISA also established the United States Foreign Intelligence Surveillance Court (FISC), a special U.S. Federal court that holds nonpublic sessions to consider issuing search warrants under FISA. Proceedings before the FISC are ex parte, meaning the government is the only party present.

Electronic Surveillance Procedures – Subchapter I of FISA established procedures for the conduct of foreign intelligence surveillance and created the Foreign Intelligence Surveillance Court (FISC). The Department of Justice must apply to the FISC to obtain a warrant authorizing electronic surveillance of foreign agents. For targets that are U.S. persons (U.S. citizens, permanent resident aliens, and U.S. corporations), FISA requires heightened requirements in some instances.

• Unlike domestic criminal surveillance warrants issued under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the "Wiretap Act"), agents need to demonstrate probable cause to believe that the "target of the surveillance is a foreign power or agent of a foreign power," that "a significant purpose" of the surveillance is to obtain "foreign intelligence information," and that appropriate "minimization procedures" are in place. 50 U.S.C. § 1804.
• Agents do not need to demonstrate that commission of a crime is imminent.
• For purposes of FISA, agents of foreign powers include agents of foreign political organizations and groups engaged in international terrorism, as well as agents of foreign nations. 50 U.S.C. § 1801

The theory of the Clinton DOJ brass in imposing the Wall was the potential that a rogue criminal investigator, lacking sufficient evidence to obtain a traditional wiretap, would manufacture a national-security angle in order to get a wiretap under the 1978 Foreign Intelligence Surveillance Act (FISA). A traditional wiretap requires evidence amounting to probable cause of commission of a crime. A FISA wiretap requires no showing of a crime, just evidence amounting to probable cause that the target of the wiretap is an agent of a foreign power. (A foreign power can be another country or a foreign terrorist organization.) The reason the Wall theory was absurd was that a rogue agent would surely manufacture evidence of a crime before he’d manufacture a national-security angle. The process of getting a traditional wiretap is straightforward: FBI crim-div agents and a district assistant U.S. attorney (AUSA) write the supporting affidavit; it gets approved by the AUSA’s supervisors; then it is submitted to the Justice Department’s electronic-surveillance unit; after that unit’s approval, the attorney general’s designee signs off; then the AUSA and the FBI present the application to a district judge. FISA wiretaps, by contrast, go through a completely different, more difficult and remote chain of command. In it, the district AUSA and FBI crim-div agents who started the investigation get cut out of the process, which is taken over by Main Justice’s National Security Division and the FBI’s national-security agents. In other words, if we assume an agent is inclined to be a rogue, it would be far easier (and less likely of detection) to trump up evidence of a crime in order to satisfy the probable-cause standard for a traditional wiretap than to manufacture a national-security threat in order to get a FISA wiretap. No rational rogue would do it.