The Foreign Intelligence Surveillance Court is not exactly a place where journalists or members of the public can simply drop in and check out the latest hot case.
The super-secretive court, which sits on the third floor of the E. Barrett Prettyman Federal Courthouse in downtown Washington, is housed in a secure vault of reinforced concrete and thick wood-and-metal doors. It’s here where the Justice Department and the FBI conduct some of their most highly classified business: requesting judicial permission to eavesdrop on the phone calls or email communications of U.S. citizens suspected of terrorism or espionage.
No sign proclaims the title of the court outside its doors. But there are at least three conspicuous clues mounted next to the entrance that can tip people off that something major transpires behind those walls: a placard that says, “Access Restricted.” A biometric palm scanner. And, an electronic cipher lock where judges and their staff must enter a code.
The court’s existence has never been a secret since it was established 40 years ago by the Foreign Intelligence Surveillance Act (FISA), which required that the government obtain warrants to eavesdrop on Americans in national security cases.
But the escalating feud over the investigation into Russia’s interference in the 2016 election has directed heightened attention at the little-known tribunal.
Last week, House Republicans released a controversial three-and-a-half-page memo blasting the FBI for its application to the court to spy on Carter Page, a former Trump campaign adviser and suspected Russian agent. The document, which had been declassified by President Trump, zeroed in on how the FBI’s warrant application relied on information from an ex-British spy but failed to tell the surveillance court that his research had been partly financed by the Democratic National Committee and lawyers for Hillary Clinton’s presidential campaign.
Republicans contend that this omission proves that the Trump-Russia investigation is biased and illegitimate. Democrats, however, have argued that the Republican memo is itself rife with omissions and inaccuracies, and failed to include everything the FBI and Justice Department knew that prompted their probe.
So, on Monday, the New York Times did something to get to the bottom of things — and pierce the surveillance court’s biometric veil. It filed a motion asking the surveillance court to unseal all the documents related to the wiretapping of Page, which lasted at least one year. The Times is arguing that President Trump’s decision to declassify the House Republican memo “lowered the shield of secrecy” normally cloaking those records from public consumption. The Times’s article on its motion explains just how unusual their request is:
No such wiretapping application materials apparently have become public since Congress first enacted the Foreign Intelligence Surveillance Act of 1978 … Normally, even the existence of such material is a closely guarded secret. While applications for criminal wiretaps often eventually become public, the government has refused to disclose the contents of applications for intelligence wiretaps — even to defendants who are later prosecuted on the basis of information derived from them.
Could the Times be the first to crack open the historically hush-hush surveillance court? It’s unclear.
Ironically, the court’s origins are rooted in the work of journalism, specifically the investigative work of the New York Times in the mid-1970s. Shortly after the midterm elections of 1974, then-Times reporter Seymour Hersh published a massive front-page exposé showing that the CIA violated its own charter during the previous two decades by illegally spying on various American dissidents and antiwar groups, as well as maintaining files on at least 10,000 Americans.
Hersh’s report helped spur numerous government investigations, including a presidential commission headed by Nelson Rockefeller, the vice president under Gerald Ford; and House and Senate investigations led, respectively, by Rep. Otis Pike (D-N.Y.) and Sen. Frank Church (D-Idaho). Out of those lengthy investigations came an enormous piece of legislation from Congress: the 1978 Foreign Intelligence Surveillance Act.
The law mandated that whenever the government wanted to obtain a warrant to tap someone’s electronic communication, it needed to ask one of the judges on the new Foreign Intelligence Surveillance Court. The law is clear: A judge-issued warrant is the “exclusive means” through which the executive branch and its spying apparatus — the National Security Agency, basically — can monitor communications in which at least one end touches U.S. soil.
Up until 2009, the secret court was located in an awkward spot: the Justice Department.
“That put the FISA judges in the unusual position of playing on the government’s home field,” wrote Del Wilber, then a reporter at The Washington Post, in 2009.
Initially, the court was composed of seven federal district court judges, who work on the secret court in addition to their normal duties. Now, in a sign of the times, there are 11 judges. Only one judge sits on the court at a time, and they rotate in and out on shifts. To its credit, the surveillance court does have its own website, where, aside from listing the names of the judges, it also posts some annual reports detailing how many applications for warrants were filed, accepted and denied.
Other than news organizations, the American Civil Liberties Union has also emerged as a stubborn advocate for transparency at the demonstrably nontransparent court. From 2007 to 2017, the ACLU filed at least six motions seeking access to the court’s proceedings. After its sixth attempt, the Justice Department practically had a conniption fit. In June 2017, it filed a testy opinion berating the organization. The government’s language — particularly its use of italics — made it quite clear that it had enough of the pesky First Amendment chest-thumpers.
“In this motion, the same movant asserts the same flawed argument in the same court of a sixth time,” read the opening sentence of the Justice Department’s opposition brief.
At multiple points, the Justice Department describes the ACLU’s theories as “flawed” and, when it had exhausted that word, came up with “erroneous.”
For one of the Justice Department’s final flourishes, it treated the ACLU like a child who refused to follow a parent’s orders.
“It has been a decade since this Court first explained the significant harm that could result from the ACLU’s suggested review,” the opinion read, “and the ACLU is still unable ‘to explain why [it] believe[s] this conclusion was flawed’ or to ‘otherwise refute the Court’vs identification of the detrimental effects that could cause a diminished flow of information as a result of public access.’ ”
In his Post story on the court, Wilber was granted rare interviews with two judges who had served on the bench: Royce C. Lamberth, the court’s chief judge from 1995 through 2002; and Reggie B. Walton.
Walton told The Post that his time on the court “opened my eyes to the level of hatred that exists in the world.”
For his part, Lamberth recalled the time he was briefed on a terrorist threat to the District.
“My wife and friends live here,” he said, tearing up.
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