WASHINGTON – It’s a mysterious court that hides behind a hulking vaulted door and impenetrable concrete walls – and it’s where the federal government makes some of its most secretive decisions concerning Americans’ basic liberties.
If you dare ask where the secret court is located, employees at the E. Barrett Prettyman Federal Courthouse in Washington, D.C. – where the court reportedly relocated in 2009 – won’t tell you.
That’s because the super-secret court is far beyond the reach of any journalist or curious American citizen.
Fortified with biometric hand scanners, wooden and metal doors and walls reinforced by concrete, it’s the room where it all happens: Eleven powerful court judges approve wiretaps, data collection and government requests to monitor suspected terrorists, spies and even American citizens. And they’re given sweeping power under the Foreign Intelligence Surveillance Act, or FISA.
In 2013, Eric Mill – a blogger and alum of the Sunlight Foundation, a nonprofit organization that advocates for government transparency – documented his efforts to learn more about the nation’s most secure and secretive courtroom.
Mill presents images of the mysterious Washington institution through illustrations because, he explained, “One of the first things that happens when you walk into the Prettyman Courthouse is they take away your phone.”
Employees at the courthouse reportedly “laughed at” Mill’s endeavor and referred to the FISA courtroom as the “Room of Requirement.”
They claimed they “had no idea what floor it was even on.”
Still, Mill wandered the long hallways and located what appeared to be a door to the FISA court.
“To the right of the door, next to the intercom and the small sign saying ‘Access Restricted,’ is a biometric hand scanner,” he wrote. “It’s (probably) a Schlage HandKey II, a device that quickly snapshots the three-dimensional bone and joint structure of the hand and matches it against previously registered snapshots.”
A look inside secret FISA process
Established in 1978 at the height of the Cold War, the clandestine FISA court, known as the U.S. Foreign Intelligence Surveillance Court, is located blocks away from the White House and the Capitol in a bunker-like complex.
The barest of details about the court and its oversight were publicly disclosed until the terrorist attacks of Sept. 11, 2001, when 19 militants associated with al-Qaida carried out suicide attacks, hijacking four planes and flying them into the World Trade Center, the Pentagon and a field in Pennsylvania, triggering major U.S. initiatives to combat terrorism.
Authorities began dramatically intensifying their espionage efforts, doubling the number of warrant applications. This prompted the court to authorize sweeping collections of mass data.
The FISA court approves more than 99 percent of the domestic electronic surveillance requests the deep state brings to its vaulted door, according to the Wall Street Journal
A 2016 Justice Department report showed the National Security Agency and the FBI made 1,457 requests for permission to the FISA court to conduct electronic surveillance in 2015.
While it is the sole responsibility of the FISA court to scrutinize every one of these requests, only one application was rejected by the government in all of 2015.
As for the rest, “FISC did not deny any applications in whole, or in part,” the Justice Department said.
The FISA court also issues subpoenas that intelligence agencies use to compel private companies to turn over personal data on customers. These “national security letters” contain everything from Americans’ billing information to their browsing histories.
In most cases, “national security letters” are accompanied by gag orders, legally forcing companies to give up customer data and prohibiting the companies from telling anyone about the process.
According to the report, the FBI made a total of 48,642 requests for national security letters to the FISA court. It’s unclear, however, how many of those requests were approved.
The 11 federal district judges are all chosen by the chief justice of the Supreme Court. One FISA judge sits on the court at a time, and the judges each take turns serving in week-long shifts, according to the Washington Post.
All of the current judges on the FISA court were selected by Supreme Court Chief Justice John Roberts.
They are appointed without confirmation or oversight by Congress.
The FISA court has long been criticized as judicial body that essentially rubber-stamps warrants for any U.S. intelligence agency seeking to conduct surveillance.
And now that a bombshell GOP memo has alleged abuse of the FISA spying warrant process by the highest echelons of the FBI and the Department of Justice, the revelation is sparking demands to know more about this secret court.
High-ranking officials of the FBI and DOJ – James Comey, Loretta Lynch, Andrew McCabe, Andrew Weissmann, Sally Yates, Peter Strzok, Lisa Page and Bruce Ohr – are accused of weaponizing the most fearsome government agencies to spy on officials in Donald Trump’s 2016 presidential campaign.
The GOP memo, released earlier this month by the House Permanent Select Committee on Intelligence and the White House, alleges that the FBI obtained a FISA warrant under false pretenses.
To secure a spying warrant on Trump foreign policy adviser Carter Page, former FBI Director James Comey signed off on a FISA spying application presented to the FISA court. The GOP memo states that an unverified dossier was cited as key intelligence in the FISA application.
The dossier was prepared by a former British spy, using anonymous Russian sources, and it was funded by Hillary Clinton’s campaign and the Democratic National Committee.
In essence, it was a political document bankrolled by the target’s political opposition.
The fact that FBI officials cited the unverified dossier to obtain a spying warrant on an American citizen has raised grave concern over just how much scrutiny the court is placing on the Justice Department’s surveillance requests.
‘If you think they won’t come after you …’
The super-secret court, which is capable of destroying American liberty and violating Americans’ Fourth Amendment protections, must be reformed, warns Rep. Scott Perry, R-Pa.
“If you think they won’t come after you – I mean, they are trying to take down the president of the United States, how much more do you have to see? Do you think they’re worried about your average American citizen?” Perry asked in an exclusive interview with WND.
The court’s cavalier approach to issuing a surveillance warrant that potentially undermines the legitimacy of the presidential election demonstrates such a severe disrespect for civil liberties that the entire FISA system should be examined, Perry said.
“If they will spy on the president of the United States, or a candidate for the presidency of the United States, do you think they are going to [spy on] somebody like you?” he asked. “They can surveil whomever they want to, do whatever they want to.”
The GOP memo contends that the salacious and unverified dossier, funded by Clinton and the DNC, was essential to obtaining permission to spy on Page on Oct. 21, 2016.
Page acknowledges communicating with Trump campaign contacts after the FBI began spying on him – indicating multiple members of the president’s team likely were caught up in the secret government surveillance, which began days before the 2016 election.
The real problem lies with Congress, which authorized the FISA court, gave it extraordinary authority and failed to stipulate surveillance limitations, Perry said.
“Here’s the deal that I think Americans maybe don’t understand: This isn’t your average court where one side presents their case and then the defense presents their case,” he said. “It’s only one side. It really comes down to a few people and the integrity of those people. If you have some people with marginal integrity – and apparently that’s the case – this is what you get.”
Perry continued, “It’s incumbent upon us to reform this and put some controls in place so that these things don’t happen.”
Trump, Congress reauthorize FISA until 2023
President Trump signed the FISA Amendments Reauthorization Act of 2017 into law just weeks ago, on Jan. 20. The current authorization will expire in December 2023.
The FISA court process is intended to be the legal check on the government’s surveillance powers, but Perry said the court authorizes virtually all requests submitted by the intelligence agencies.
“It is unbelievable how much of our Fourth Amendment rights have been taken away under this program,” he said. “Look, for foreigners who don’t have constitutional rights, that’s fine. But not American citizens.”
The U.S. House of Representatives voted 256 to 164 to approve a six-year extension of the controversial Section 702 of the Foreign Intelligence Surveillance Act after a contentious debate last month. The Senate voted 65 to 34 to approve the reauthorization on Jan. 18 before sending it to the White House.
Rep. Stephen Lynch, D-Mass., also emphatically called for reformation of the FISA court process, arguing that the FBI’s spying targets should be granted legal representation.
“There should be actually an added element – an advocate on behalf of the target,” Lynch told WND. “If the FBI comes to the court and says, ‘We have evidence that this person is acting in the interest against the United States and may be a threat to national security and we want to surveil them,’ and they present their evidence, there should be someone on the other side, an advocate on behalf of the court to say, ‘Here are the reasons why the court should not grant a wiretap or a surveillance warrant.’ That is lacking.”
What’s the biggest problem with the FISA court process?
Rep. Lynch said there’s only “one argument” made before the judge. There are no checks and balances – no defense attorney to argue the adversarial case against the government.
“You don’t have – as we do in every other case – an adversarial debate in court about whether it should be granted or not,” he said. “Under the counter system, that’s the judge’s responsibility to poke holes in the prosecution’s case.
“Really, you might want to have an advocate representing the people who could potentially be targets,” Lynch continued. “If we introduce an advocate, a friend of the court, they would try to push back on some of the surveillance of American civilians and American citizens. That would be an improvement.”
Demands for special prosecutor probe FBI actions, FISA process
Former FBI Director James Comey slammed the declassified House GOP memo immediately after it was released, arguing that it’s “dishonest” and “misleading.” Comey said it “inexcusably exposed” classified investigations.
Nonetheless, no law currently forbids misusing the power of the presidency to spy on one’s adversaries. But it is a crime under both the protections of the Fourth Amendment and section 1809 of the Foreign Intelligence Surveillance Act for anyone to either “engage in” electronic surveillance under “color of law” under FISA without following the law’s restrictions, or “disclose” or “use” information gathered from it in contravention of the statute’s sharp constrictions.
Perry suspects the FBI violated the law. He’s demanding an independent prosecutor investigate Comey and the high-ranking officials at the FBI for misleading the FISA court. He also wants a probe of the FISA court itself since it failed to substantiate the FBI’s evidence.
“I think crimes have been committed – we are going to find that out,” Perry said. “You can’t have the Department of Justice, the FBI and FISC investigating themselves. I am not a big fan of special counsels, but we need a second special counsel just to deal with this, for a federal grand jury to get this information, find out where the facts are, find out who is responsible and provide some accountability.”
He said an independent prosecutor might also launch an investigation into possible Democratic collusion with Russia.
“We are waiting for one fact that shows any collusion regarding Trump and the Russians or the Trump campaign – we haven’t seen one fact of collusion. So, with all due respect, I think Mueller’s probe would be wrapping up pretty quickly,” he told WND.
“The memo calls into question the very basic tenets of that investigation. If we are looking for a foreign collusion, like with Ukraine, all those things that the Trump administration and campaign and Republicans are accused of, you can safely say that the evidence is replete. It’s all out there – this collusion actually happened on the Democrat side.”
House intel member: ‘No question’ FBI and DOJ ‘manipulated’ FISA court
Rep. Chris Stewart, R-Utah, a member of the House Intelligence Committee, told WND the American people should be more concerned about political weaponization of the FBI, rather than the FISA process.
“The problem is with leadership at the FBI, not necessarily the FISA court,” Stewart said. “There are some things we need to do to add transparency to the court, but the judges have to presume that they are being given all of the evidence and that the evidence is being presented fairly – that just didn’t happen in this case. There’s no question that FBI and the Department of Justice manipulated FISC. There needs to be accountability.”
Stewart also said Attorney General Jeff Sessions should appoint a new special counsel to conduct a full review of the investigative and prosecution powers wielded by the Obama-era Justice Department and FBI.
“This dossier is just political garbage. It’s no more credible than a $2 novel,” Stewart said. “The FBI used that dossier to survey a private U.S. citizen who had no accusations against him except that he has associations with the Trump campaign. It’s an absolute abuse of power, and we just want the American people to know that.
“We need to look at DOJ, look at FBI, make sure they’re adhering to policies and to law. If after that, we think we need additional review oversight of FISA, I wouldn’t object to that.”
Dems: Don’t ‘nitpick’ FISA, FBI
Rep. Matthew Cartwright, D-Pa., a proponent of FISA, contends that the court serves as a sufficient check on the government’s powers and protects the nation.
“You always worry about a trade-off with the invasion of personal privacy,” Cartwright told WND. “Democrats tend to be very worried about that aspect, but seven out of nine Democrats on the House Permanent Select Committee on Intelligence voted to reauthorize the courts. I support the FISA court. [The judges] are helping to keep America safe from terror attacks in this country.”
Cartwright warned Americans not “nitpick” the FBI and the FISA court. He claimed the Democratic Party response to the GOP’s memo, which was released Saturday, would prove the bureau’s surveillance had nothing to with political partisanship.
“The FBI is doing wonderful work toward that end of protecting all of us from terrorists in this country,” he said. “People should rather be protected from terrorists acts than nitpick with particular decisions of the FISA court. [The Democratic rebuttal] will prove the FBI has not been politicized.”
Due to coverage of the ongoing Russia probe, Americans will have a more comprehensive understanding of how the FISA court and the FBI function, Rep. Danny Davis, D-Ill., told WND.
“There are a lot of people, like myself, who always wanted to understand more about what governs the behavior of the FBI in terms of having the FBI become more transparent relative to what they do, how they do it and the authority they have,” Davis explained. “What we are getting now is a pretty good look at the FBI and the FISA court, something we don’t always get. Once this is all said and done, there will be a different level of transparency and a different level on the part of the citizenry of what they understand about the FBI.”
Dems say FISA court didn’t need dossier to grant spying warrant
Democrats insist the FISA court would have granted the spying warrant to the FBI even without the dossier.
“The dossier was part of the evidence provided, but I think it would have been granted without the dossier,” Rep. Lynch told WND. “The first warrant on Carter Page went back to 2013. He had been surveilled back then as a possible Russian agent. FBI had the evidence. That may have had some influence on the court.”
Lynch contends that the FBI was actually forthcoming in its FISA request to surveil Page because the bureau included a “footnote” in its application that noted the dossier was obtained from a political party.
“There’s a footnote in the warrant application that says part of the evidence has been provided by a political party – didn’t say which one, didn’t say it was the Clinton campaign, didn’t say that the dossier was paid for by the Democrats, but it said some of the evidence was paid for,” he said.
George Papadopoulos, an early foreign policy adviser to Trump’s presidential campaign, was the catalyst for the FISA court’s decision to grant the spying warrant to surveil Page, Rep. Raúl M. Grijalva, D-Ariz., told WND.
“The FISA process was not abused. The FISA warrant is not even tied to the dossier. The memo released from Chairman [Devin] Nunes and the Republicans on that committee has been discredited,” Grijalva told WND. “The motivation for asking for FISA authority came from what George Papadopoulos was saying to a high-ranking diplomat in Australia. The FBI is not in a violation, and FISA is not being used for partisan reasons.”
He continued: “When we see what was sent to the president in terms of the Democrat response to Mr. Nunes’ memorandum – we’ll see point by point – those are going to be rebuked. As it’s been said by Republicans, this in no way exonerates anybody, including the president, from the continuing investigation of Russian influence on our election.”
The Democratic response to the GOP memo proves the Trump administration is intent on destroying the legitimacy of the FBI to conceal the truth about President Trump’s collusion with Russia during the election, Rep. Eliot Engel, D-N.Y., told WND.
“The whole picture is that the president of the United States and his administration has been trying to sully the reputation of the FBI and the Justice Department,” he said. “I am for opening up the window and letting fresh air come in.”
Asked whether the FBI should be held accountable for misleading the FISA court, Engel skirted WND’s questions, again urging Americans to “look at the whole picture.”
“You cannot take one incident, or two incidents, or even 10 incidents, in isolation,” he said. “We have to look at the whole picture. It’s very difficult to comment on something like that unless you know the whole picture. … The American people ought to see the whole picture, not just one part of the story.”
Rep. Brenda Lawrence, D-Mich., slammed Republicans for claiming the dossier is a political document that Clinton and the DNC “bought and paid for.”
“I will not say that that dossier was political,” Lawrence told WND. “It is my understanding that it was not this single document that the FBI used to obtain the FISA warrant. We are singling this one document [out] in the multitude of information that has been reviewed and looked at, and I don’t think you can pull this one document out as the single source.
“Our intelligence pulled as many sources as possible. I would not expect the FBI to use a document that was not vetted as being facts.”
Forcing the FBI to reveal its methods or evidence for obtaining the warrant jeopardizes national security, Lawrence argued.
“This letter, dossier, has nothing to do with the probe, and it didn’t start the probe,” she said. “There’s a reason for confidentiality and classified information. We might as well not have an intelligence force in our government if everything is going to be revealed. If every piece of information is declassified, then intelligence won’t work. What we need to look at is what we define as classified information.”
Even Dems see ‘politicized’ FBI – but favoring Trump
Rep. Davis railed against the “politicized” leadership of the FBI, arguing the FBI’s investigation of Clinton’s use of a private, unsecured email server during the 2016 presidential election was baseless and cost Clinton the presidency.
“I do believe that the FBI revelations – the way they handled information, especially near the end of the campaign – that their behavior had a great deal to do with the ability of President Trump to be elected president,” Davis told WND.
Rep. Grace Napolitano, D-Calif., one of the 58 Democrats who voted in favor of a motion to impeach President Trump last December, told WND she doesn’t know whether the FBI has been politicized or if the FISA court process should be reformed because she relies on the news media to learn more about the Russia probe.
“Even some members of Congress like me, I am not privy to the higher intelligence clearance, so I am not privy to what is going on in some of those areas,” she explained. “We learn about a lot of these things from what we hear in the press. We should have as much information as some of the others to be able to effectively talk about some of the issues that are coming before the rest of the country. I don’t know enough to make a comment on the dossier because its way beyond the intelligence clearance that I have, and I don’t get enough information on that.”
However, Napolitano added: “I hope Americans continue to trust the FBI. It’s one of the only weapons we have – one of the only safeguards we have. I hope they are thinking in a nonpartisan method to keep out of politics and do their job.”