Amicus Curiae Brief — Carter Page, Petitioner v. James B. Comey, et al.

Supreme Court briefJan 20, 2026

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No. 25-705

IN THE

___________

CARTER PAGE,

Petitioner,

JAMES COMEY, ET AL.,

Respondents.

___________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

__________

Brief of the Liberty Justice Center as

Amicus Curiae Supporting Petitioner

__________

January 20, 2026

Jeffrey Schwab

Counsel of Record

Reilly Stephens

Jessica Craine

LIBERTY JUSTICE CENTER

7500 Rialto Blvd.

Suite 1-250

Austin, Texas 78735

512-481-4400

jschwab@ljc.org

Counsel for Amicus Curiae

Question Presented

If the Federal Bureau of Investigation (FBI)

abuses its authority under the Foreign Intelligence

Surveillance Act (FISA) to secretly surveil an

American, when must he bring a case to vindicate his

rights?

Table of Contents

Question Presented ....................................................... i

Table of Contents .......................................................... ii

Table of Authorities ..................................................... iii

Interest of the Amicus Curiae ..................................... 1

Summary of Argument ................................................. 1

Argument ....................................................................... 3

I. This Court should grant the petition to uphold

the Fourth Amendment and ensure FBI FISA

abuse cannot continue without consequences. ....... 3

The government has repeatedly abused

the FISA program to violate Americans’ Fourth

Amendment rights. ............................................... 4

The constitutionality of the current FISA

program relies on the government providing the

FISC with accurate information. ......................... 5

The FBI has not provided the FISC with

accurate information. ............................................ 7

The FISC cannot prevent FISA abuse if

the FBI continues to withhold material

information. ........................................................... 9

Without judicial review of FISA abuse

after it occurs, the FBI can violate Americans’

constitutional rights without consequences...... 10

Conclusion ................................................................... 12

iii

Table of Authorities

Cases

Bay Area Laundry and Dry Cleaning Pension Trust

Fund v. Ferbar Corp. of Cal.,

522 U. S. 192 (1997).................................................... 11

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007)..................................................... 11

Corner Post, Inc. v. Board of Governors of Fed. Rsrv.

Sys.,

603 U.S. 799 (2024)..................................................... 11

In re Accuracy Concerns Regarding FBI Matters

Submitted to FISC,

411 F. Supp. 3d 333 (F.I.S.C. 2019) ............................ 6

In re Accuracy Concerns Regarding FBI Matters

Submitted to the FISC,

No. Misc. 19-02, Corrected Op. and Order (F.I.S.C.

Mar. 5, 2020). .............................................. 6, 8, 9, 10

In re Certified Question of L.,

858 F.3d 591 (F.I.S.C.R. 2016) (per curiam) .............. 5

In re Directives Pursuant to Section 105b of the

Foreign Intelligence Surveillance Act,

551 F.3d 1004 (F.I.S.C.R. 2008). ................................. 5

In re DNI/AG 702(h) Certifications 2018-A, 2018-B,

and 2018-C, and Predecessor Certifications,

Nos. 702(j)-18-01, 702(j)-18-02, 702(j)-18-03, and

predecessor dockets, Mem. Op. and Order (F.I.S.C.

Oct. 18, 2018)............................................................. 4

In re DNI/AG 702(h) Certifications 2020-A, 2020-B,

and 2020-C, and Predecessor Certifications et al.,

Nos. 702(j)-20-01, 702(j)-20-02, 702(j)-20-03, and

predecessor dockets, Order in Resp. to Querying

Violations (F.I.S.C. Sept. 2, 2021). .......................... 5

Page v. Comey,

137 F.4th 806 (D.C. Cir. 2025)................................... 11

Page v. Comey,

628 F. Supp. 3d 103 (D.D.C. 2022) ............................ 11

Redacted,

2011 U.S. Dist. LEXIS 157706, Mem. Op. (F.I.S.C.

Oct. 3, 2011) ............................................................... 4

Wyoming v. Houghton,

526 U.S. 295 (1999)....................................................... 5

Other Authorities

DOJ OIG, AUDIT OF THE FEDERAL BUREAU OF

INVESTIGATION’S EXECUTION OF ITS WOODS

PROCEDURES FOR APPLICATIONS FILED WITH THE

FOREIGN INTELLIGENCE SURVEILLANCE COURT

RELATING TO U.S. PERSONS, at i (Sep. 2021). .......... 8

DOJ OIG, OVERSIGHT AND REVIEW DIVISION 20-012,

REVIEW OF FOUR FISA APPLICATIONS AND OTHER

ASPECTS OF THE FBI’S CROSSFIRE HURRICANE

INVESTIGATION (Dec. 2019, Revised) ................... 7, 8

Interest of the Amicus Curiae

Liberty Justice Center (LJC) is a nonprofit,

nonpartisan public-interest litigation firm that

pursues strategic, precedent-setting litigation aimed

revitalizing

constitutional

restraints

government power and protecting individual rights.1

LJC is interested in this case because it frequently

litigates important cases against government

overreach and violations of Americans Fourth

Amendment rights. For example, in Scholl v. Ill. State

Police, 776 F. Supp. 3d 701 (N.D. Ill. 2025), LJC has

argued that warrantless dragnet surveillance of every

citizen that drives by automated license plate readers

(ALPRs) constitutes an unreasonable search.

LJC also files amicus briefs on similar issues, such

as its brief in Greater Las Vegas Short Term Rental

Ass’n v. Clark Cty., 555 P.3d 265 (Nev. 2024), which

argued that forcing property-owners to consent to

warrantless searches of short-term rental properties

was an unconstitutional condition.

Summary of Argument

This Court has held that cases cannot be brought

based on pure speculation—there must be a known

factual basis to support a claim. Petitioner brought his

case after a government report declassified

information that proved the FBI violated his rights.

1 Rule 37 statement: No counsel for any party authored any part

of this brief, and no person or entity other than Amicus funded

its preparation or submission. All parties received timely notice

of Amicus’s intent to file this brief.

But the court below held that anonymously sourced

news articles years earlier had started the clock to

bring his case, so his claims were untimely. If the

court below is correct, every claim for FISA abuse is a

sort of Schrödinger’s case—both too early and too late

at the same time.

If courts cannot hear these cases, the FBI will

continue to abuse the FISA program to violate the

Fourth Amendment rights of Americans. The Foreign

Intelligence Surveillance Court (FISC) found the FBI

abused their power because the Department of Justice

(DOJ) admitted that it abused its power in this very

case. And the FISC has expressed concern that future

abuses cannot be prevented by court oversight. The

only remedy is to bring cases after abuse occurs to

vindicate Americans’ rights. But if cases like this can

be time barred by anonymous, unconfirmed media

speculation, the FBI will continue to violate

Americans’ rights with no consequences.

This Court should grant review to clarify that a

limitations period does not begin to run based on

unconfirmed rumors, and make clear that the FBI

cannot evade judicial review of its abuse of the FISA

program and violate the Fourth Amendment rights of

Americans with impunity.

Argument

This Court should grant the petition to

uphold the Fourth Amendment and

ensure FBI FISA abuse cannot continue

without consequences.

If courts cannot address abuses of the FISA

program after they occur, the FBI can violate

Americans’ rights with impunity. Under the decision

below, it is almost impossible to bring a case

challenging illegal FISA surveillance. This Court has

held that citizens who believe themselves to be victims

of illegal FISA surveillance do not have standing to

challenge that surveillance based on rumor and

speculation that such has occurred without concrete

evidence. See Clapper v. Amnesty International USA,

568 U.S. 398 (2013). But in this case, the court below

held that Petitioner was required to file his case based

on exactly that sort of speculation and once that

speculation was public, the limitations period to file

that case began to run.

This Court should grant review and clarify cases

can be brought after proof of government overreach is

released to ensure FBI abuse of the FISA program

receives judicial review and those responsible face

consequences for violating the constitutional rights of

Americans.

The government has repeatedly

abused the FISA program to violate

Americans’ Fourth Amendment rights.

The federal government, including the FBI, has

repeatedly abused the FISA program and violated the

Fourth Amendment rights of Americans.

For example, in 2011 the FISC found that the FISA

program was used to collect “thousands of wholly

domestic communications” by United States persons

that were “retained by [the National Security Agency]

for at least five years, despite the fact” that they were

“unlikely to contain foreign intelligence information.”

Redacted, 2011 U.S. Dist. LEXIS 157706, Mem. Op.,

at 60–61 (F.I.S.C. Oct. 3, 2011). Because of this, the

FISC found aspects of the FISA program violated the

law and the Fourth Amendment. See id. at 29.

In 2018, the FISC found the FBI’s “repeated noncompliant queries” of information collected under

section 702 of the FISA program violated the law and

the Fourth Amendment. In re DNI/AG 702(h)

Certifications 2018-A, 2018-B, and 2018-C, and

Predecessor Certifications, Nos. 702(j)-18-01, 702(j)18-02, 702(j)-18-03, and predecessor dockets, Mem.

Op. and Order, at 62 (F.I.S.C. Oct. 18, 2018). Despite

these findings, the FBI continued to have “substantial

and persistent” compliance issues three years later

that would “call into question” whether aspects of the

FISA program were “consistent with statutory and

Fourth Amendment requirements.” In re DNI/AG

702(h) Certifications 2020-A, 2020-B, and 2020-C, and

Predecessor Certifications, Nos. 702(j)-20-01, 702(j)20-02, 702(j)-20-03, and predecessor dockets, Order in

Resp. to Querying Violations, at 13 (F.I.S.C. Sept. 2,

2021).

The repeated abuse of FISA authorities by the

federal government, including the FBI, demonstrates

the grave risks the program can pose to the rights of

Americans.

The constitutionality of the current

FISA program relies on the

government providing the FISC with

accurate information.

The government’s engagement in surveillance

pursuant to FISA is subject to the Fourth

Amendment. “The touchstone of the Fourth

Amendment is reasonableness.” In re Certified

Question of L., 858 F.3d 591, 604 (F.I.S.C.R. 2016) (per

curiam) (quoting Wyoming v. Houghton, 526 U.S. 295,

300 (1999)). The Foreign Intelligence Surveillance

Court of Review (FISCR) has explained its process for

assessing the reasonableness of the FISA program: it

must consider both “the degree to which it intrudes

upon an individual’s privacy and . . . the degree to

which it is needed for the promotion of legitimate

governmental interests.” Id. at 604–05 (quoting

Houghton, 526 U.S. at 300). This is a “totality of the

circumstances” balancing process. In re Directives

Pursuant to Section 105b of the Foreign Intelligence

Surveillance Act, 551 F.3d 1004, 1012 (F.I.S.C.R.

2008). If “the protections that are in place for

individual privacy interests are . . . insufficient to

alleviate the risks of government error and abuse, the

scales will tip toward a finding of unconstitutionally.”

Id. at 1015.

Fourth Amendment rights of Americans in

relation to FISA are protected by the program’s “presurveillance

judicial

warrant

procedure,”

“particularly the judge’s probable cause findings.” In

re Accuracy Concerns Regarding FBI Matters

Submitted to FISC, 411 F. Supp. 3d 333, 336 (F.I.S.C.

2019) (quoting previous orders and opinions from the

FISC).

The FISC has warned, though, that its

“assessment of probable cause can serve those

purposes effectively only if the applicant agency fully

and accurately provides information in its possession

that is material to whether probable cause exists.” Id.

at 336–37. Without such information the FISC

“cannot properly ensure the government” is using its

FISA authorities “only when there is a sufficient

factual basis.” Id. at 337. So “only when the

government fully and accurately provides all

information in its possession that is material to

whether probable cause exists can the Court's review

effectively serve as a check on Executive Branch

decisions to conduct surveillance.” In re Accuracy

Concerns Regarding FBI Matters Submitted to the

FISC, No. Misc. 19-02, Corrected Op. and Order, at 8

(F.I.S.C. Mar. 5, 2020).

The FISC makes its decisions about the FISA

program based on the procedures in place to protect

Americans’ privacy interests and the information the

government provides about probable cause. If that

information is incomplete or incorrect, the court’s

decisions will often be flawed as well. The FISC may

not have a full or accurate understanding of the

“totality of the circumstances.” This can result in their

Fourth Amendment reasonableness analyses being

flawed, and the constitutional rights of Americans

being violated, like they were in this case.

The FBI has not provided the FISC

with accurate information.

The FISC cannot ensure the FISA program stays

within Fourth Amendment boundaries unless the FBI

provides it with accurate information. But the DOJ

has admitted it failed to do so in this case, and the

FISC agrees.

The DOJ itself has admitted the FBI has not

provided the FISC with the information needed to

ensure Americans’ constitutional rights are respected.

In reviewing the actions of the FBI in this specific

case, the DOJ Office of Inspector General (OIG) found

“at least 17 significant errors or omissions,” which

“taken together resulted in FISA applications that

made it appear that the information supporting

probable cause was stronger than was actually the

case.” DOJ OIG, OVERSIGHT AND REVIEW DIVISION 20012, REVIEW OF FOUR FISA APPLICATIONS AND OTHER

ASPECTS OF THE FBI’S CROSSFIRE HURRICANE

INVESTIGATION, at xiv and vii (Dec. 2019, Revised).

These “extensive compliance errors” occurred even

though the FBI’s work “received more attention and

scrutiny than a typical FISA application in terms of

the additional layers of review and number of highlevel officials who read the application before it was

signed.” Id. at xiv and vii. The DOJ OIG expressed

major concerns because “so many basic and

fundamental errors were made by three separate,

hand-picked teams on one of the most sensitive FBI

investigations that was briefed to the highest levels

within the FBI, and that FBI officials expected would

eventually be subjected to close scrutiny.” Id. at xiv.

The FISC agreed that the FBI abused its power in

this case. “There is thus little doubt that the

government breached its duty of candor to the

Court . . .” In re Accuracy Concerns, Corrected Op. and

Order, at 1. “[T]he most prevalent and among the

most serious problems” in this case were “[o]missions

of material fact.” Id. at 4.

The FISC expressed further concern that the FBI

may be abusing its power in the FISA program to

violate the rights of other Americans. “The frequency

and seriousness of these errors in a case that, given

its sensitive nature, had an unusually high level of

review at both DOJ and the [FBI] have called into

question the reliability of the information proffered in

other FBI [FISA] applications.” Id. at 1.

This concern seems justified, given that over a year

later the OIG within the DOJ stated it believed

“additional action [was] necessary to ensure rigorous

supervisory review and to further strengthen

[internal] oversight to reduce the risk of erroneous

information being included in FISA applications,

which can lead to faulty probable cause

determinations and infringement of U.S. persons’ civil

liberties.” DOJ OIG, AUDIT OF THE FEDERAL BUREAU

OF INVESTIGATION’S EXECUTION OF ITS WOODS

PROCEDURES FOR APPLICATIONS FILED WITH THE

FOREIGN INTELLIGENCE SURVEILLANCE COURT

RELATING TO U.S. PERSONS, at i (Sep. 2021).

The procedures in place in the FISA program have

not protected Americans’ privacy interests. And the

information provided by the FBI purporting to

demonstrate probable cause has also been inaccurate.

This information led the FISC to approve FISA

warrant applications when it shouldn’t have. Which

in turn has allowed the FBI to violate Americans’

constitutional rights.

The FBI’s repeated failures to provide the FISC

with the information it needs to protect Americans’

rights, by all levels of management and even when

they could expect to have their actions reviewed, show

the gravity of the risk the FISA program poses to the

constitutional rights of Americans. And yet, if the

decision of the court below stands, those responsible

will get away with it. This Court must intervene to

ensure there will be consequences for violating

Americans’ rights and the FBI will not have reason to

believe it is above the law and can continue to act with

impunity.

The FISC cannot prevent FISA abuse

if the FBI continues to withhold

material information.

Without accountability, the FISC will not be able

to prevent similar FISA abuse in the future.

The FISC has indicated it does not believe

procedural or structural changes will fix the problem.

“[T]he errors . . . cannot be solved through procedures

alone. DOJ and the FBI, including all personnel

involved in the FISA process, must fully understand

and embrace the heightened duties of probity and

transparency that apply in ex parte proceedings.” In

re Accuracy Concerns, Corrected Op. and Order at 2.

“While more rigorous procedures for preparing FISA

applications should prove helpful, the Court is also

mindful that changes in culture will require more

than checklists.” Id. at 13.

And it is clear the FBI cannot be trusted to provide

the information needed for courts to provide the

required oversight. As the FISC noted in this case,

there were “prevalent” “[o]missions of material fact”

by the FBI. Id. at 4. And the FBI’s actions “have called

into question the reliability of the information

proffered in other FBI [FISA] applications.” Id. at 1.

And “[w]ithout facts that are both accurate and

complete, the Court is necessarily hamstrung in its

ability to balance the interests of national security

with those of personal privacy,” which is required to

determine if the Fourth Amendment’s protections are

actually being provided. Id. at 8.

Courts do not have the facts necessary to

determine whether the FISA program respects the

Fourth Amendment, there is reason to believe they

will not have that information moving forward, and

additional procedures cannot fix the problem. The

Fourth Amendment rights of Americans must receive

greater respect.

Without judicial review of FISA abuse

after it occurs, the FBI can violate

Americans’ constitutional rights

without consequences.

Because the procedures and required factual

predicates intended to prevent FISA abuse have not

been working, and there is no reason to be confident

they will in the future, the only recourse is to allow

cases to be brought after FBI abuse occurs to hold

those responsible accountable. But given the decision

below, that option does not seem exist.

This Court has explained that claims do not accrue

“until the plaintiff can file suit and obtain relief.”

Corner Post, Inc. v. Board of Governors of Fed. Rsrv.

Sys., 603 U.S. 799, 810 (2024) (quoting Bay Area

Laundry and Dry Cleaning Pension Trust Fund v.

Ferbar Corp. of Cal., 522 U. S. 192, 201 (1997)). And

suspicion is not enough to file suit. “Factual

allegations must be enough to raise a right to relief

above the speculative level.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007).

But the court below found that because the

petitioner read two anonymously sourced newspaper

articles and “knew he was the subject of alleged illegal

government surveillance,” he “had sufficient

notice . . . to bring FISA claims.” Page v. Comey, 137

F.4th 806, 817 (D.C. Cir. 2025) (emphasis added).

That petitioner “suspected that the allegations, and

the ensuing warrants, were baseless” was apparently

enough. Id. at 815 (quoting Page v. Comey, 628 F.

Supp. 3d 103, 118 (D.D.C. 2022)) (emphasis added).

If suspicion is enough to start the clock, but

speculation is not enough to file suit, there is little to

no hope of Americans being able to bring cases to

vindicate their rights. FISA warrants are classified, so

the details will almost certainly not be available to

Americans to support their suspicions. But without

those facts, the clock continues ticking until

Americans run out of time and the FBI is saved by

bell, evading review of any FISA abuse it engages in.

Without judicial review of FISA abuses after they

occur, Americans’ constitutional rights will continue

to be violated without any consequences for the FBI.

That cannot be. This Court should grant the petition

and hold cases can be brought after proof of

government abuse is released to ensure Americans’

constitutional rights receive protection and the FBI is

not allowed to act with impunity.

Conclusion

There is no question the FBI has abused its FISA

authority—it admittedly did so in this very case. And

there is no reason to believe it will stop in the future.

The only option is to hold it accountable after it

violates Americans’ rights.

The question is, will anyone be held responsible—

in this case or in the future—for violations of

Americans’ constitutional rights?

If the decision below is left in place, the answer is

no. It effectively prevents any judicial review of the

FBI’s abuse of FISA authorities after the fact, in

addition to the inadequate review provided before it

occurs. If a case is brought when there are suspicions

of secret abuse, it will be dismissed as too early. If it

is brought after actual evidence of abuse is released,

it will be dismissed as too late. Heads the FBI wins,

tails Americans lose.

The FBI must be not allowed to continue to run

roughshod over the Fourth Amendment rights of

Americans with no consequences. This Court should

grant the petition to make clear when a case must be

brought so judicial review of FISA abuse can occur

and the FBI can finally be held accountable.