[Author’s Note: This week’s release of the Justice Department Inspector General’s report on FISA abuse (among other investigative irregularities) in the FBI’s Trump-Russia investigation has spawned a welcome public discussion of the 1978 Foreign Intelligence Surveillance Act. What follows is an excerpt from my recently released book, Ball of Collusion, which undertakes to explain why I have long been a naysayer of FISA, which I first encountered in the early 1990s as a prosecutor handling terrorism cases — one of rare contexts in which FISA surveillance evidence sometimes seeps into criminal prosecutions. The discussion that follows is a prelude to book’s account of Obama-era FISA surveillance abuses that have received little public attention (in contrast to FISA surveillance in the Trump-Russia investigation, currently in the spotlight). These abuses prompted the Foreign Intelligence Surveillance Court, in October 2016, to castigate the intelligence community for its institutional “lack of candor.”]
A little background on surveillance. Non-Americans situated outside our country do not have Fourth Amendment privacy protections. Consequently, the overseas collection of intelligence about them, including their communications, occurs with no judicial supervision. It is carried out under Executive Order 12333, which has been amended several times since being issued by President Ronald Reagan in 1981.
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