To get a FISA warrant to spy on a suspected spy, the feds go before a super-secret court located in a sealed room in the Department of Justice. With no defense lawyers present, they need only show probable cause that the target is an 'agent of a foreign power' engaged in intelligence gathering against the United States.

In this quote, Benjamin Wittes is describing the process by which the U.S. government seeks a FISA warrant to conduct surveillance on a suspected spy. The Foreign Intelligence Surveillance Act (FISA) allows the federal government to gather intelligence on individuals believed to be engaged in activities that threaten national security. Wittes explains that to obtain this warrant, the government must present evidence to a secret court, which operates under strict confidentiality. This process occurs in a sealed room at the Department of Justice, with the focus being on probable cause rather than the adversarial legal process typically seen in regular courts.

Wittes' comment highlights the secrecy and lack of transparency surrounding FISA warrants. Unlike standard legal proceedings where both sides have the opportunity to present their case, FISA hearings occur without the presence of defense lawyers. The court’s sole requirement is for the federal authorities to show probable cause that the target is an agent of a foreign power involved in intelligence gathering against the U.S. This is a stark contrast to the usual legal processes that emphasize due process and the protection of individual rights.

The origin of this quote is rooted in Wittes' role as a legal scholar and expert in national security and intelligence law. He is well known for his insights on the balance between civil liberties and national security, often discussing issues related to government surveillance, intelligence gathering, and privacy rights. Wittes aims to inform the public about the often opaque and secretive nature of the FISA process, raising important questions about oversight and accountability in matters of national security.

Ultimately, Wittes is critiquing the lack of checks and balances in the FISA process, where the government can gain access to highly sensitive information with minimal oversight and no legal defense for the individual being surveilled. The quote underscores the tension between protecting the nation’s security and ensuring that individual rights and freedoms are not unjustly compromised.