FBI Looks for Leaks at Foreign Intelligence Surveillance Court
by Eli Lake Jun 18, 2013 4:45 AM EDT
Investigators still do not know if the FISA system has been compromised, or if Edward Snowden was the source of the Verizon warrant published by the ‘Guardian.’ Eli Lake reports.
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.
“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 overnight.”
U.S. intelligence officials were careful to say investigators have not yet concluded there is a mole inside the FISA Court or that the secure databases that store the court warrants have been compromised, only that both prospects were under active investigation.
If the secret court has been breached, it would be one of the most significant intelligence failures in U.S. history, potentially giving America’s adversaries a road map to every suspected agent inside the United States currently being watched by the FBI, according to the officials. Unlike the Verizon order and other such sweeping collection demands that have been received by internet and telecom companies, many FISA warrants identify a specific individual or entity being monitored by the U.S. government.
“If we have a human or electronic breach in this system it could be a counter-intelligence disaster. It would allow our adversaries to see what we are targeting and how,” said Joel Brenner, a former inspector general and senior counsel for the NSA who left the agency in 2010.
“If they got access into the database or mainframe that the warrants are housed in, this compromises our country’s most closely guarded ongoing investigations,” Hoekstra said. “This would be like Aldrich Ames,” referring to the CIA officer who told the Soviet Union about moles inside the USSR working for the United States for nearly a decade, with several of the operatives he outed arrested and executed by the Soviets. “This would be breathtaking.”
Stewart Baker, a former general counsel to the NSA, just said such a breach would be “very bad.”
The leading suspect in the leak of the FISA court warrant is Edward Snowden, the 29-year-old NSA contractor who announced himself earlier this month as the source of NSA documents leaked to the Washington Post and the Guardian. Snowden, however, has not acknowledged being the source of the FISA court warrant. When asked on ABC News earlier this month to speak more about his source’s motivations, Glenn Greenwald, the journalist who broke the first stories for the Guardian, said, “Well, first of all, I am not going to confirm that there is only one individual, there could be one or more than one.”
A U.S. intelligence official with knowledge of the current investigation said Snowden would not be able to access a court warrant by himself. “This is not something, even if you are a contractor and you work for an intelligence agency like NSA, that you are going to be able to get a hold of,” this official said of the FISA warrant. ABC News first quoted [ http://abcnews.go.com/blogs/headlines/2013/06/did-alleged-nsa-leaker-edward-snowden-work-alone/ ] law-enforcement sources last week saying that Snowden would not have access to the FISA warrant in his job as a system administrator employed by contractor Booz Allen Hamilton working for the NSA.
When asked if Snowden had more such warrants on Thursday, Rep. Mike Rogers, the Republican chairman of the House Permanent Select Committee on Intelligence, said, “Candidly, nobody really knows the answer to that today. I think we will know the answer to that shortly.”
A U.S. intelligence official on Monday told The Daily Beast that investigators still did not know how many other FISA court warrants, if any, might make their way into the public eye, or if Snowden was the source of the Verizon document and, if so, whether or not he was working alone.
If the court has been compromised, it would not be the first breach of FBI surveillance targets inside the United States. In April, CIO.com quoted [ http://www.cio.com/article/732122/_Aurora_Cyber_Attackers_Were_Really_Running_Counter_Intelligence ] Microsoft's Dave Aucsmith, the senior director of the company's Institute for Advanced Technology in Governments, saying a 2009 hack of major U.S. Internet companies was a Chinese plot to learn the targets of email and electronic surveillance by the U.S. government. In May, the Washington Post reported [ http://articles.washingtonpost.com/2013-05-20/world/39385755_1_chinese-hackers-court-orders-fbi ] Chinese hackers had accessed a Google database that gave it access to years’ worth of federal U.S. surveillance records of counter-intelligence targets. But current and retired U.S. intelligence officials stressed that the government has jealously guarded access to FISA Court warrants, and doubted that they could have been obtained from the databases of U.S. Internet or telephone companies.
Spokespeople for the Justice Department, the FISA Court, Verizon, and the office of the Director of National Intelligence declined to comment for this story.
Eli Lake is the senior national-security correspondent for Newsweek and the Daily Beast. He previously covered national security and intelligence for the Washington Times. Lake has also been a contributing editor at The New Republic since 2008 and covered diplomacy, intelligence, and the military for the late New York Sun. He has lived in Cairo and traveled to war zones in Sudan, Iraq, and Gaza. He is one of the few journalists to report from all three members of President Bush’s axis of evil: Iraq, Iran, and North Korea.
Harumph ..let's see, Snowden says "More is coming" .. it appears that intelligence agency is saying ... " More is coming " .... .. If the whistle blowers thought they were having a bad time before this ........ I'm afraid, they haven't seen anything yet .... and NO. I don't believe Snowden is a whistle blower, how can you be a whistle blower when everything you blew was legal? ... So far anyway .......We'll see. It's good to have the conversation, there is no doubt about that, however, the sources for these revelations are simply too suspect to have much credence for me. Please, get real! ... it didn't bother Edward in 2001 through 2006, when the bush admin. was doing this WITHOUT any such court? .. All I can say is .. It most certainly bothered ALL people on the left side of the political spectrum and even some on the right ... .. . BUT .. NOT EDWARD.
[ caption hidden inside: This Sept. 19, 2007, file photo, shows the National Security Agency building at Fort Meade, Md. The government is secretly collecting the telephone records of millions of U.S. customers of Verizon under a top-secret court order, according to the Sen. Dianne Feinstein, D-Cailf., chairwoman of the Senate Intelligence Committee. The Obama administration is defending the National Security Agency's need to collect such records, but critics are calling it a huge over-reach. ]
Josh Marshall June 11, 2013, 4:25 PM
Like the OJ Simpson trial almost twenty years ago, there are some public events which not only divide people but divide you against people you didn’t expect to be divided against. As a Republican you may be used to disagreeing with Democrats and vice versa. But with these other kinds of public events you have the shock of realizing you had very different sets of assumptions or even values than people you were used to agreeing with. I’m not sure of how TPM Readers in general feel about the Snowden story. But there’s no question that a lot of readers are surprised and in many cases angry about what I’ve written on the subject.
That’s fair. It goes with the job. But it’s led me to try to think through what those different assumptions and values are that makes people react to this so differently. I think the key issue is how different people understand their relationship with the state (in this case the US government) and the national political community as a whole and the relationship between the two.
For me the story starts with the Bradley Manning case. This story has been going on for years and though I generally haven’t written much about it, when I have, I’ve made clear that I don’t see Manning as a hero or a whistleblower or really anything positive at all. At best I see him as a young and naive kid who got way in over his head.
When I first heard about the Manning case - or first understood that Manning was the likely source of the Wilileaks trove - I was frankly surprised that anybody saw him as a whistleblower. Perhaps due to the novelty of the Internet we don’t really have a lot of past analogues for the Manning type. We’re used to spies who give secrets to foreign governments, either because of ideology or money. But mass and fairly indiscriminate public disclosure is sort of a new phenomenon. In any case, back to the issue at hand. Pretty early I realized that to his supporters Manning was a whistleblower who was being persecuted by the government, almost like a political prisoner or prisoner of conscience.
Again, to me that’s a total nonsequitur.
I’m a journalist. And back when I did national security reporting I tried to get leaks. So I don’t think leaks are always wrong. I think the government and journalists both have legitimate interests that point in very different directions. In fact, leaks are an absolutely critical safety valve against government wrongdoing and/or excessive secrecy. But when someone in government leaks classified information they’re breaking an oath and committing a crime. That’s a big deal. Sometimes though the importance of what’s leaked justifies the act morally if not legally. That is often the case. And that’s one reason that while I think the laws against disclosure should be in place I also think it’s imprudent for the government to try too hard to enforce them. I do not see how you can’t prosecute Snowden since he’s revealed himself publicly. And leaks should sometimes be investigated. But in most cases it’s not worth snooping on journalists to try to find the culprit. The costs outweigh the gains. Because of that, it’s really impossible to say leaks are good or bad in general. It’s also true that people can leak information for petty or even evil reasons but the leak still serves a positive public purpose. Leaks are complicated. I think we know that. And being morally right doesn’t necessarily get you off the hook for committing a crime.
Coming from this perspective, it’s hard to see any justification for what Manning did, which is basically downloading everything he could find and giving it to a foreign national (Assange) with the expectation that he’d just dump it into the public. There were a couple clear cases of wrongdoing revealed in his documents. But the vast majority were fairly mundane diplomatic cables, military records and so forth. What on Earth do you think is going to happen to a soldier who almost literally breaks every rule in the book and dumps the country’s email files for the world to see?
Soldiers get in huge trouble for going AWOL, even though one individual soldier abandoning his post seldom does much damage to a country or an army. This is a far graver insubordination with incalculably more widespread consequences. And yet, again, some people see him as a hero who should be celebrated rather than tried and punished.
My purpose here isn’t to say, what the fuck are these people thinking. I’m trying to think through what is the difference between the prisms we’re looking through that makes us see it so differently.
Here is I think the essential difference and where it comes back to what I referred to before - a basic difference in one’s idea about the state and the larger political community. If you see the state as essentially malevolent or a bad actor then really anything you can do to put a stick in its spokes is a good thing. Same if you think the conduct of US foreign policy is fundamentally a bad thing. Then opening up its books for the world to see is a good thing simply because it exposes it or damages it. It forces change on any number of levels.
From that perspective, there’s no really no balancing to be done. All disclosure is good. Either from the perspective of transparency in principle or upending something you believe must be radically changed.
On the other hand, if you basically identify with the country and the state, then indiscriminate leaks like this are purely destructive. They’re attacks on something you fundamentally believe in, identify with, think is working on your behalf.
Now, in practice, there are a million shades of grey. You can support your government but see its various shortcomings and even evil things it does. And as I said at the outset, this is where leaks play a critical, though ambiguous role, as a safety valve. But it comes down to this essential thing: is the aim and/or effect of the leak to correct an abuse or simply to blow the whole thing up?
In Manning’s case, it’s always seemed pretty clear to me that the latter was the case.
Let me put my cards on the table. At the end of the day, for all its faults, the US military is the armed force of a political community I identify with and a government I support. I’m not a bystander to it. I’m implicated in what it does and I feel I have a responsibility and a right to a say, albeit just a minuscule one, in what it does. I think a military force requires a substantial amount of secrecy to operate in any reasonable way. So when someone on the inside breaks those rules, I need to see a really, really good reason. And even then I’m not sure that means you get off scott free. It may just mean you did the right thing.
So do I see someone who takes an oath and puts on the uniform and then betrays that oath for no really good reason as a hero? No.
The Snowden case is less clear to me. At least to date, the revelations seem more surgical. And the public definitely has an interest in knowing just how we’re using surveillance technology and how we’re balancing risks versus privacy. The best critique of my whole position that I can think of is that I think debating the way we balance privacy and security is a good thing and I’m saying I’m against what is arguably the best way to trigger one of those debates.
But it’s more than that. Snowden is doing more than triggering a debate. I think it’s clear he’s trying to upend, damage - choose your verb - the US intelligence apparatus and policieis he opposes. The fact that what he’s doing is against the law speaks for itself. I don’t think anyone doubts that narrow point. But he’s not just opening the thing up for debate. He’s taking it upon himself to make certain things no longer possible, or much harder to do. To me that’s a betrayal. I think it’s easy to exaggerate how much damage these disclosures cause. But I don’t buy that there are no consequences. And it goes to the point I was making in an earlier post. Who gets to decide? The totality of the officeholders who’ve been elected democratically - for better or worse - to make these decisions? Or Edward Snowden, some young guy I’ve never heard of before who espouses a political philosophy I don’t agree with and is now seeking refuge abroad for breaking the law?
I don’t have a lot of problem answering that question.
Individual conscience is always critical. But when it comes to taking a stand on conscience it’s not just the thought that counts. You put yourself to the judgment or the present and the future about whether you made the right judgment.
Now does this mean I don’t think any of his leaks should have been published? No, I’m not saying that. I think it’s quite possible some of them should have been. But I’m talking about how I see the guy himself.
Speaking for myself, the kind of balancing I’m describing is critical. But for a lot of people, again, there’s really nothing to balance since transparency is always better or because change is so necessary that spilling the beans has to be a good thing. That just doesn’t fit with my way of looking at these things. That’s why I’m taking this story as it unfolds. And I’m very skeptical of the notion that what Snowden did is awesome just because leaking state secrets is always a heroic act.
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