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A Look At Possible Implications Of The Release Of The Carter Page FISA Document


Let's take a step back now and look at how unusual it is for the FISA Court to release these materials. Marc Zwillinger is a former Justice Department lawyer who is now in private practice, and he has argued cases against the government to the FISA Court. He joins us now. Welcome.

MARC ZWILLINGER: Thanks for having me.

SHAPIRO: Just to be clear, from the start, you were not involved in the Carter Page case, correct?

ZWILLINGER: That's correct. I had nothing to do with it.

SHAPIRO: Carter Page and his attorneys were not there at the Foreign Intelligence Surveillance Court to make their case, so how confident should people be that there was a fair and just process here?

ZWILLINGER: The standard here is whether there is probable cause to believe that Carter Page was acting as an agent of a foreign power. It's similar to the probable cause standard you would have in any criminal case before a search warrant is issued. And those are all done on an ex parte basis.

SHAPIRO: Ex parte meaning there's no opposing lawyer making a counter argument.

ZWILLINGER: That's correct. So if there were ever going to be a trial, then there would be the opportunity for someone to appear on his behalf and make arguments about why he shouldn't be convicted. But as to whether or not somebody is subject to surveillance, the traditional way the FISA Court operates and the criminal courts operate is that the government makes a private showing of probable cause. The judge either agrees or disagrees, and the surveillance application is either granted or denied. And that's standard in this case. It's standard in all cases.

SHAPIRO: So these documents show that not only was the initial application granted, but there were a couple of extensions, renewals granted. How significant does that seem to you?

ZWILLINGER: Well, it's standard that an application might be renewed in front of the FISA Court. What's significant here is that there were four different FISA Court judges who signed off on this application at various points, which suggests that no one judge influenced by any proper - improper motive could have issued the order. Four different people looked at it. So there was a lot of people involved both at the DOJ-FBI side and from the court.

SHAPIRO: You're saying the claims that this was an incomplete application based on faulty evidence are undercut by what's in these documents.

ZWILLINGER: I think the release of these documents gives great comfort to that - those claims are just not true. This is the way the intelligence collection process works in this country. And it may be the first time that the American people have had an opportunity to see it because of the unprecedented release of the order, but nothing exceptionally out of the ordinary occurred in the issuing of these applications.

SHAPIRO: You've read this 400-page pile of documents. What stands out to you?

ZWILLINGER: Well, what stands out to me frankly is that if this application is viewed as insufficient, I can't imagine any surveillance application passing muster. This application is detailed. Even in the parts that are just released and not redacted, there is a clear case made that the government honestly believes that Carter Page was acting as an agent of a foreign power. If we got to the materials that were redacted, I think that case would have been made in greater detail. I can't imagine materials that are significantly greater than this being presented in the ordinary course of business.

SHAPIRO: Do you think it was the right choice to release these documents? It was, as you say, unprecedented.

ZWILLINGER: Yeah, you know, that's going to be an issue that we're going to have to struggle with for years to come. More information about our intelligence gathering apparatus is revealed in these applications than has ever been revealed before. That's not necessarily a bad thing. More information came out after the Snowden disclosures about how the FISA Court works than ever before, and I would say lots of good came of that.

SHAPIRO: And so how significant a change is this? I mean, you say for years to come, people are going to be looking back at this moment, this decision to release these documents.

ZWILLINGER: On one hand, we have a completely unprecedented situation. If it weren't for the release of the Nunes memo to begin with which made claims about what these application materials contained, we wouldn't have been in this position. So that's not likely to repeat itself frequently. But if this becomes a standard method of operation to question the issuance of these types of applications, there could be pressure on the court to release more and more applications and orders.

SHAPIRO: Do you think that releasing these documents in any way harms or threatens national security?

ZWILLINGER: It could. I'm someone who's been advocating for more transparency in front of the FISA Court. It's useful for the American public to see how the court operates. And the release of these documents can lead to reforms as to our surveillance system. But it also can lead to the inability to protect sources and methods of intelligence gathering, and that could put our country in some jeopardy.

SHAPIRO: Marc Zwillinger, thanks so much for talking with us today.

ZWILLINGER: Thanks for having me on.

SHAPIRO: He's one of five lawyers who've been appointed to serve as advisers to the Foreign Intelligence Surveillance Court, and he's founder of the firm ZwillGen. Transcript provided by NPR, Copyright NPR.