Is there a leak at the FISA court?

posted at 9:41 am on June 18, 2013 by Ed Morrissey

No one knows for sure, but the appearance of what had been a highly-classified court decision has some wondering if the FISA court has sprung its first significant leak.  The Daily Beast’s Eli Lake reports that the FBI has begun to wonder that, too — although the list of suspects in this case is long and distinguished:

The FBI is investigating whether the highly protected and segregated computer systems that store the secret court warrants authorizing electronic surveillance inside the United States have been breached, according to current and former U.S. intelligence officials. Thirteen days after the Guardian published a top-secret court order from the top-secret Foreign Intelligence Surveillance Court disclosing the National Security Agency’s collection of all phone records from Verizon’s business customers over a three-month period, the U.S. intelligence community has yet to determine how the warrant, one of the most highly classified documents inside the U.S. government, was leaked.

Those who receive the warrant—the first of its kind to be publicly disclosed—are not allowed “to disclose to any other person” except to carry out its terms or receive legal advice about it, and any person seeing it for those reasons is also legally bound not to disclose the order. The officials say phone companies like Verizon are not allowed to store a digital copy of the warrant, and that the documents are not accessible on most NSA internal classified computer networks or on the Joint Worldwide Intelligence Communications System, the top-secret internet used by the U.S. intelligence community.

The warrants reside on two computer systems affiliated with the Foreign Intelligence Surveillance Court and the National Security Division of the Department of Justice. Both systems are physically separated from other government-wide computer networks and employ sophisticated encryption technology, the officials said. Even lawmakers and staff lawyers on the House and Senate intelligence committees can only view the warrants in the presence of Justice Department attorneys, and are prohibited from taking notes on the documents.

There had been some speculation that Snowden might not be the only source for the scoops by the Guardian and Washington Post.  It’s not even clear that Snowden had access to the FISA warrant.  Capitol Hill says it wasn’t them:

“The only time that our attorneys would have gotten to read one was if Justice Department lawyers came over with it in a secure pouch and sat there with them when they read them,” said Pete Hoekstra, a former Republican chairman and ranking member of the House Permanent Select Committee on Intelligence.  “There was never one in the intelligence committee spaces, never one left there without someone from the Justice Department. It would not have been left there over night.”

That raises other questions, of course.  What else might secret courts do with secret laws, where attorneys representing the accused can’t attend and even the transcripts can’t be seen by Congress without a baby sitter?  There may be an argument for this much secrecy on the most acute counter-terrorism cases, but these applied to the broader collection taking place at the NSA.

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Constitution? We don’t need no steenkin Constitution.

The Rogue Tomato on June 18, 2013 at 9:46 AM

There had been some speculation that Snowden might not be the only source for the scoops by the Guardian and Washington Post.

Shhhhh.

BG will be devastated..

It’s just a lone wolf!!!!

Government is grand!

Electrongod on June 18, 2013 at 9:48 AM

I’ve reached a point where I want to “Let all the poison that lurks in the mud to hatch out.”

Our government shows us daily they cannot be trusted. It’s time to remedy that.

dogsoldier on June 18, 2013 at 9:48 AM

There may be an argument for this much secrecy on the most acute counter-terrorism cases, but these applied to the broader collection taking place at the NSA.

Does anybody really believe that a billion phone calls being recorded a day are all from Verizon? Does anybody trust Eric Holder to not abuse his position for partisan reasons? Does anybody actually think that such invasive intrusion into Americans’ lives is warranted? (word use intended).

Sorry but the FISA should not be operated like the Star Chamber. They need to be held accountable just like anybody else.

Happy Nomad on June 18, 2013 at 9:48 AM

When the government is doing something wrong, really wrong, leaks begin to appear.

The problem is, the leaks have to be very, very, descreet, or they are “eliminated” before they are confirmed.

So the “leaks” can’t ever be reliable, the most famous “leaker” was deepthroat, and it was decades before he was exposed.

There are probably a few people passing info, but it has to be so clandistine, it takes time for the info to surface.

Especially in light of the revelation that news reporters phones and computers are now being tapped.

As much as it may help our intel, it also harms us from obtaining the truth.

Back to meeting in the park or underground garages and passing handwritten notes.

right2bright on June 18, 2013 at 9:48 AM

“This is the judgment, that the Light has come into the world, and men loved the darkness rather than the Light, for their deeds were evil.” – John 3:19

myiq2xu on June 18, 2013 at 9:48 AM

There was a leak in SCOTUS, so could be for this one too.

forest on June 18, 2013 at 9:49 AM

P.L.A. Unit 61398

kcewa on June 18, 2013 at 9:52 AM

The Administration must be furious that there are those in the bureaucracy who put the Constitution and Bill of Rights ahead of Obama.

Liam on June 18, 2013 at 9:52 AM

The Administration must be furious that there are those in the bureaucracy who put the Constitution and Bill of Rights ahead of Obama.

Liam on June 18, 2013 at 9:52 AM

All over the political elites are shrill and shrieking over it. Our overlords do not like being exposed for the tyrants they are.

What justification in earth’s name could someone offer for ALL OF VERIZON’s records?

What judge looked at that and said “Duh, okie dokie?”

Un effing believable.

dogsoldier on June 18, 2013 at 10:03 AM

Didn’t Glorious Leader (pbuh) just tell us that everything was transparent? What’s the problem here? Just because the courts warrant approval violates the First and Fourth Ammendments we shouldn’t get to hear about it?(/s) These guys really need taken down a peg.

yesiamapirate on June 18, 2013 at 10:04 AM

The Administration must be furious that there are those in the bureaucracy who put the Constitution and Bill of Rights ahead of Obama.

Liam on June 18, 2013 at 9:52 AM

Indeed there are, and they are legion.

It’s time to shut the whole thing down and consider whether it’s worth it to rebuild it or not. This administration cannot be trusted. It is evil, partizan pure evil, and has nothing but contempt for our laws and Constitution.

We are a Republic, and Barry & his sycophants and enablers are acting like Julius Caesar, seeking to usurp the Republic and proclaim him emperor.

TKindred on June 18, 2013 at 10:04 AM

The Administration must be furious that there are those in the bureaucracy who put the Constitution and Bill of Rights ahead of Obama.

Liam on June 18, 2013 at 9:52 AM

I think stunned might be a better description. The rat-eared despots inner circle really and truly don’t think the Constitution applies to them. Just look at the way Eric Holder deliberately did not prosecute the New Black Panthers for voter intimidation. The warrantless searches of Americans. Putting free contraception for sluts ahead of religious freedom. The harassment of conservatives. The refusal to pursue violations of DOMA. The executive order to let the illegals that are DREAMers stay and openly mock Americans who think the law should apply to them. Etc.

I could go on but my blood pressure is probably too high as it is.

Happy Nomad on June 18, 2013 at 10:06 AM

+1 liam @9:52

cmsinaz on June 18, 2013 at 10:09 AM

Dear leader says the FISA courts are 100% transparent so no leaks required LOL

shanimal on June 18, 2013 at 10:09 AM

What judge looked at that and said “Duh, okie dokie?”

Un effing believable.

dogsoldier on June 18, 2013 at 10:03 AM

The way I look at it, the CNN rule applies to the administration too. They can go to the Star Chamber and demand permission to record all of Verizon’s phone records.

But when it becomes public, they should be able to vigorously defend why they asked permission in the first place. What we’ve gotten is nothing but arrogance.

Happy Nomad on June 18, 2013 at 10:09 AM

Good for the leaker! We’ve discovered that there really is an Orwellian presence in our lives, by the name of the Federal Government. The question is……how long has this been going on? I don’t believe that the Patriot Act was the first assault.

tomshup on June 18, 2013 at 10:09 AM

The warrants reside on two computer systems affiliated with the Foreign Intelligence Surveillance Court and the National Security Division of the Department of Justice. Both systems are physically separated from other government-wide computer networks and employ sophisticated encryption technology, the officials said. Even lawmakers and staff lawyers on the House and Senate intelligence committees can only view the warrants in the presence of Justice Department attorneys, and are prohibited from taking notes on the documents.

Stand by……while Eric Holder recuses himself…….again….burp.

Rovin on June 18, 2013 at 10:11 AM

I think stunned might be a better description. The rat-eared despots inner circle really and truly don’t think the Constitution applies to them. Just look at the way Eric Holder deliberately did not prosecute the New Black Panthers for voter intimidation. The warrantless searches of Americans. Putting free contraception for sluts ahead of religious freedom. The harassment of conservatives. The refusal to pursue violations of DOMA. The executive order to let the illegals that are DREAMers stay and openly mock Americans who think the law should apply to them. Etc.

I could go on but my blood pressure is probably too high as it is.

Happy Nomad on June 18, 2013 at 10:06 AM

Holder did it worse than that. The NBPP had already pleaded out, but Holder then withdrew the government’s charges. Technically, then, the case never existed and neither did the plea. Holder knew it, too.

Liam on June 18, 2013 at 10:13 AM

We’ve had leakers and leaks before. We’ll have them in the future. It’s nice to know, tho, that there are still some in govt who think as we do. We just have to wait the crooks out for the next election cycle to try to get rid of some of them.

Kissmygrits on June 18, 2013 at 10:16 AM

Rubber stamp court

cmsinaz on June 18, 2013 at 10:17 AM

Rubber stamp court

cmsinaz on June 18, 2013 at 10:17 AM

And rubber-spined Republicans.

Liam on June 18, 2013 at 10:21 AM

Laugh of the day, courtesy…the media

Obama: NSA secret data gathering ‘transparent’

Schadenfreude on June 18, 2013 at 10:21 AM

the U.S. intelligence community has yet to determine how the warrant, one of the most highly classified documents inside the U.S. government, was leaked.

Aw, the poor intelligence community’s 4th Amendment rights were violated…?

Akzed on June 18, 2013 at 10:24 AM

How can the FISA court allow domestic surveillance? The FI stands for Foreign Intelligence.

hawksruleva on June 18, 2013 at 10:26 AM

How can the FISA court allow domestic surveillance? The FI stands for Foreign Intelligence.

hawksruleva on June 18, 2013 at 10:26 AM

The same way Janet can say returning war veterans and Christians are potential terrorists, while it’s cause for discipline in the FBI to accuse a Muslim of being a potential terrorist.

Liam on June 18, 2013 at 10:29 AM

Holder did it worse than that. The NBPP had already pleaded out, but Holder then withdrew the government’s charges. Technically, then, the case never existed and neither did the plea. Holder knew it, too.

Liam on June 18, 2013 at 10:13 AM

Of course he knew it. But, if you’re white, don’t you dare show up in front of a predominantly black polling place with a club and start screaming racial epithets! That would be a hate crime.

Happy Nomad on June 18, 2013 at 10:34 AM

Good for the leaker! We’ve discovered that there really is an Orwellian presence in our lives, by the name of the Federal Government. The question is……how long has this been going on? I don’t believe that the Patriot Act was the first assault.

tomshup on June 18, 2013 at 10:09 AM

I’m betting that this idea of keep the masses ignorant started to gain momentum during the FDR years. He was really an elitist that understood the populace needed to be watched over and controlled to protect their elitist positions. I mean, Japanese internment camps…really now!!

Deano1952 on June 18, 2013 at 10:35 AM

Rubber stamp court

cmsinaz on June 18, 2013 at 10:17 AM

Yeah, I heard a description of how the FISA court works. The system is rigged in favor of the government. It takes one judge to approve but three have to render an opinion to reject.

Happy Nomad on June 18, 2013 at 10:36 AM

Of course he knew it. But, if you’re white, don’t you dare show up in front of a predominantly black polling place with a club and start screaming racial epithets! That would be a hate crime.

Happy Nomad on June 18, 2013 at 10:34 AM

You got that right. At this point, and under Obama/Holder, being white is almost a hate crime.

Liam on June 18, 2013 at 10:36 AM

I think there will come a point where Obama and his foot lickers will lose control. I think it would be great if continued leaks have the DOJ working their butts off trying to keep up with the leakers. Terrorism is real but I fear the real enemy to the Republic is the secret government in Washington. The occasional terrorist act like the Boston bombers are nice diversions for expanding their agenda.

DaveDief on June 18, 2013 at 10:38 AM

How can the FISA court allow domestic surveillance? The FI stands for Foreign Intelligence.

hawksruleva on June 18, 2013 at 10:26 AM

If the FISA judge is lied to and doesn’t know that domestic surveillance is going to being conducted, who’s to know? Remember, EVERYONE is supposed to be sworn to silence on the order, what is being monitored, etc.

The other problem is that if the FISA judge finds out that someone (NSA, FBI, DoJ) exceeded the limits of the FISA order, what is he/she going to do? The damage to our consititution has already been done. Months, even years, of illegal surveillance may have already been conducted. There is no way to undo what has been done. And who is going to investigate/prosecute? Eric Holder? Fat chance.

GAlpha10 on June 18, 2013 at 10:39 AM

How can the FISA court allow domestic surveillance? The FI stands for Foreign Intelligence. hawksruleva on June 18, 2013 at 10:26 AM

It’s like how everyone is six degrees of separation from Kevin Bacon.

Following your call/caller tree far enough will show that you know someone who knows someone who calls Yemen regularly.

Then, yer in the FISA frying pan.

Akzed on June 18, 2013 at 11:02 AM

Jim Geraghty has a good post at “Morning Jolt,” which gives a hat tip to “Warmer than Warm Air”:

Obama: 1500-1700 FISA Court Applications Per Year Is a ‘Surprisingly Small’ Number of Requests

Obama to Charlie Rose:

The whole point of my concern, before I was president — because some people say, “Well, you know, Obama was this raving liberal before. Now he’s, you know, Dick Cheney.” Dick Cheney sometimes says, “Yeah, you know? He took it all lock, stock, and barrel.” My concern has always been not that we shouldn’t do intelligence gathering to prevent terrorism, but rather are we setting up a system of checks and balances? So, on this telephone program, you’ve got a federal court with independent federal judges overseeing the entire program.

Oh, Mr. President, you’re so, so, so certain that nobody is going to notice your verbal sleight-of-hand.

Remember, in a FISA court, there is no equivalent of a defense attorney speaking on behalf of the person being investigated. It is not an adversarial court. Nobody speaks for you, Joe Citizen. The government makes its case, and the judge either says, “okay,” or “no, I’m not convinced.” Take a guess at how that works out . . .

Now check your guess against how often FISA courts turn down those requests:

The court rarely, if ever, denies the government’s requests, according to annual reports issued to senior members of Congress by the Department of Justice and collected by the Federation of American Scientists.

In 2012, the government made 1,789 applications to the court — one was withdrawn by the government and 40 were modified by the court, but “the FISC did not deny any applications in whole or in part,” the report states. In 2011, there were 1,676 applications, of which two were withdrawn and 30 modified, but once again, “The FISC did not deny any applications in whole, or in part.” In 2010, there were 1,511 applications, of which five were withdrawn and 14 modified, but “The FISC did not deny any applications in whole, or in part.”

In 2009, the court denied a single application, modified 14, and approved another 1,320. In 2008, the court denied another application, and made “substantive modifications” to two more, but approved more than 2,000. In 2007, the court denied a whopping three applications. It denied a single one in 2006. It denied zero applications in 2005 and 2004, though it denied four in 2003. It approved all applications in 2002 and 2001.

So, since the start of the War on Terror more than 11 years ago, the court has denied just 10 applications, and modified several dozen, while approving more than 15,000.

Obama to Charlie Rose: “First of all, Charlie, the number of requests are surprisingly small.”

Mary Katharine Ham, writing at WarmerThanWarmAir.com, writes:

Obama’s just repeating speeches from 2008, paired with demonstrable proof that he’s not interested in acting out the beliefs in those speeches, and expecting us all to move on, satisfied that his guiding hand will prevent abuse. His assurances have held great power in the past, but exactly what would make us think they’re worth anything now? Sure, it’s politically advantageous for him to declare on Benghazi, NSA, IRS (not to mention ERA and State Department), “We have noted your concerns and there’s an investigation underway, now let’s get back to exactly what I’d like to talk about, and don’t I give an awesome speech?”

But that’s not good enough. Obama has allowed abuses to happen on his watch, his administration has floated somewhere between malice and utter incompetence letting them go on, and none of the institutional backstops or failsafes have worked to prevent them or punish those responsible.

onlineanalyst on June 18, 2013 at 11:05 AM

This is a leak cascade, ala Insty’s preference cascade.

More and more people are being brave in opposition to tyranny.

PattyJ on June 18, 2013 at 11:07 AM

This is a leak cascade, ala Insty’s preference cascade.

More and more people are being brave in opposition to tyranny.

PattyJ on June 18, 2013 at 11:07 AM

Exactly. I think taking it slowly is the best way. It gives the people in low positions time to realize they better start saving themselves. Let them tell us what they know.

There’s definitely blood in the water now.

Oink on June 18, 2013 at 11:15 AM

What else might secret courts do with secret laws, where attorneys representing the accused can’t attend and even the transcripts can’t be seen by Congress without a baby sitter?

The Star Chamber is now in session.

ajacksonian on June 18, 2013 at 11:24 AM

Maybe Snowden is smarter than gov’t mouthpieces say and could do more than they’ve admitted.

Why would our masters lie to us?

ROCnPhilly on June 18, 2013 at 11:53 AM

What else might secret courts do with secret laws, where attorneys representing the accused can’t attend and even the transcripts can’t be seen by Congress without a baby sitter?

and there is the critical question.

dmacleo on June 18, 2013 at 12:04 PM

This must end.

pat on June 18, 2013 at 12:23 PM

There had been some speculation that Snowden might not be the only source for the scoops by the Guardian and Washington Post.

I have considered two possibilities:

1. Snowden was fed the documents by the Chinese to leak to Guardian.
2. There are additional leakers and Snowden is a smokescreen to cover them.

crosspatch on June 18, 2013 at 12:42 PM

The problem with the whole Snowden releases is that it has been said by several who I would think would know that Snowden wouldn’t have had access to those documents from the office where he worked. It shouldn’t have been physically possible for him to see those documents from that location even if he did have the proper clearance according to people such as a former director.

There is more than meets the eye here, it seems to me. As a person with an IT job, he might have been able to collect documents off of other people’s computers, particularly if a disk drive needed replacement or something.

crosspatch on June 18, 2013 at 1:13 PM

I believe Snowden is a paid Chinese agent. The Chinese have succeeded in hacking our most sensitive data. However, the info can’t be released and used against us without a plausible (?) conduit. Hence, Snowden.

tngmv on June 18, 2013 at 1:20 PM

“…What else might secret courts do…”

If we told you, we’d have to kill you.

Another Drew on June 18, 2013 at 1:34 PM

“This is the judgment, that the Light has come into the world, and men loved the darkness rather than the Light, for their deeds were evil.” – John 3:19

myiq2xu on June 18, 2013 at 9:48 AM

I was thinking more along the lines of:

Therefore whatsoever ye have spoken in darkness shall be heard in the light; and that which ye have spoken in the ear in closets shall be proclaimed upon the housetops.

There Goes the Neighborhood on June 18, 2013 at 1:39 PM

I would guess that Snowden has been “turned” by a Chinese agent. He is too naive to fall for a direct offer of money. Someone has been working on him, grooming him, for this.

PattyJ on June 18, 2013 at 1:41 PM

Sympatico with Snowden. There is somebody or someone in the FISA court leaking info. Could be they are seeing abuse happening under the obummer regime. And doing the moral thing and leaking particulars.

jake49 on June 18, 2013 at 1:43 PM

“This is the judgment, that the Light has come into the world, and men loved the darkness rather than the Light, for their deeds were evil.” – John 3:19

myiq2xu on June 18, 2013 at 9:48 AM

Truth.

bluefox on June 18, 2013 at 2:56 PM

It takes one judge to approve but three have to render an opinion to reject.

Happy Nomad on June 18, 2013 at 10:36 AM

Does that mean there are only 2 judges?

bluefox on June 18, 2013 at 3:01 PM

The problem with the whole Snowden releases is that it has been said by several who I would think would know that Snowden wouldn’t have had access to those documents from the office where he worked. It shouldn’t have been physically possible for him to see those documents from that location even if he did have the proper clearcrosspatch on June 18, 2013 at 1:13 PM

This article answers your question and many others.

http://m.usatoday.com/article/news/2428809

bluefox on June 18, 2013 at 3:09 PM

I became suspicious early on. He seemed to know too much for his level. So is he a cover for someone still inside?

However, regardless of how it got out, the fact it got out is the key.

What is the Latin saying that Sheldon uses on Big Bang? It means the fact in front of you proves the fact.

In this case, they say the system is secure so not to worry, but by seeing the document from within the secure system obviously stolen from within that secure system makes the previous statement false.

Or as they say in a Country song- Who you gonna believe me or your lying eyes?

archer52 on June 18, 2013 at 3:22 PM

What else might secret courts do with secret laws, where attorneys representing the accused can’t attend and even the transcripts can’t be seen by Congress without a baby sitter?

Indeed.

Therefore whatsoever ye have spoken in darkness shall be heard in the light; and that which ye have spoken in the ear in closets shall be proclaimed upon the housetops.

There Goes the Neighborhood on June 18, 2013 at 1:39 PM

This scripture has crossed my mind more than once in the last few years.

AesopFan on June 18, 2013 at 7:05 PM

This article answers your question and many others.

http://m.usatoday.com/article/news/2428809

bluefox on June 18, 2013 at 3:09 PM

That was an incredibly important article!
It also directly answers the people who complained that Snowden should have “worked within the system” instead of going public.

For years, the three whistle-blowers had told anyone who would listen that the NSA collects huge swaths of communications data from U.S. citizens. They had spent decades in the top ranks of the agency, designing and managing the very data-collection systems they say have been turned against Americans. When they became convinced that fundamental constitutional rights were being violated, they complained first to their superiors, then to federal investigators, congressional oversight committees and, finally, to the news media.

To the intelligence community, the trio are villains who compromised what the government classifies as some of its most secret, crucial and successful initiatives. They have been investigated as criminals and forced to give up careers, reputations and friendships built over a lifetime.

Today, they feel vindicated.

They say the documents leaked by Edward Snowden, the 29-year-old former NSA contractor who worked as a systems administrator, proves their claims of sweeping government surveillance of millions of Americans not suspected of any wrongdoing. They say those revelations only hint at the programs’ reach.

William Binney: We tried to stay for the better part of seven years inside the government trying to get the government to recognize the unconstitutional, illegal activity that they were doing and openly admit that and devise certain ways that would be constitutionally and legally acceptable to achieve the ends they were really after. And that just failed totally because no one in Congress or — we couldn’t get anybody in the courts, and certainly the Department of Justice and inspector general’s office didn’t pay any attention to it. And all of the efforts we made just produced no change whatsoever. All it did was continue to get worse and expand.

Q: So Snowden did the right thing?

Binney: Yes, I think he did.

Q: You three wouldn’t criticize him for going public from the start?

J. Kirk Wiebe: Correct.

Binney: In fact, I think he saw and read about what our experience was, and that was part of his decision-making.

Wiebe: We failed, yes.

Jesselyn Radack: Not only did they go through multiple and all the proper internal channels and they failed, but more than that, it was turned against them. … The inspector general was the one who gave their names to the Justice Department for criminal prosecution under the Espionage Act. And they were all targets of a federal criminal investigation, and Tom ended up being prosecuted — and it was for blowing the whistle.

Much, much more at the link – RTWT.

AesopFan on June 18, 2013 at 7:19 PM