How Republicans (and a Few Democrats) Avoided Limits on Section 215

In the markup of the PATRIOT reauthorization last week, Dick Durbin and Russ Feingold repeatedly pointed out that in 2005, the Senate Judiciary Committee had unanimously approved language to require Section 215 only be used with people who had some known tie to terrorism or a foreign power. Back then, everyone on the Committee supported the change Durbin and Feingold have been proposing as an improvement on Section 215. 

Now, Durbin and Feingold did so to point out the indefensible position of those who–like DiFi–said in 2005 that the current and proposed law amounts to an invitation for a fishing expedition, but are nonetheless insisting on issuing just such an invitation now.

But that doesn’t explain how it happened that, sometime between the Committee markup and the final bill in 2005-6, real limits on the use of Section 215 were eliminated over the apparent objections of the entire Committee. And while I’m just beginning to piece together that story, the history seems to support my suspicions that Section 215 and NSLs became the new vehicles for Bush’s illegal data mining program just as it was being exposed.

The primary bill that became the Patriot Improvement and Reauthorization Act of 2005 was HR 3199, introduced by Jim Sensenbrenner, then-Chair of the House Judiciary Committee, on July 11, 2005; in addition, then-Chair of the Senate Judiciary Committee Arlen Specter introduced S 1389 on July 22, 2005.

Sensenbrenner’s bill introduced the following language into Section 215, requiring that,

the information likely to be obtained from the tangible things is reasonably expected to be (A) foreign intelligence information not concerning a United States person, or (B) relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities.

That is, when this was introduced in the House, it basically allowed Section 215 to be used for anything, provided it pertained to international terrorism. That language remained in the bill through the House Judiciary and House Intelligence Committee markups of the bill and was adopted by the House as a whole.

But the Senate substituted its own bill, including the language limiting Section 215 orders to those with a definitive tie to terrorism or foreign intelligence, specifically requiring the judge to make sure there was some kind of tie.

(c)(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records or tangible things if the judge finds that–

  •   `(A) the statement of facts contained in the application establishes reasonable grounds to believe that the records or other things sought are relevant to an authorized investigation conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities;
  •   `(B) the statement of facts contained in the application establishes reasonable grounds to believe that the records or other things sought-
    •   `(i) pertain to a foreign power or an agent of a foreign power;
    •   `(ii) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or
    •   `(iii) pertain to an individual in contact with, or known to, a suspected agent of a foreign power; and

This bill passed the Senate on July 29. The House was formally informed on September 6, 2005, after the August recess, but the House did not return to the PATRIOT reauthorization until November 9. 

To resolve this difference and a great deal of others, the bill went to conference. Conferees from the House generally were:

  • Sensenbrenner
  • Coble
  • Smith (TX)
  • Gallegly
  • Chabot
  • Jenkins
  • Lungren
  • Daniel E.
  • Conyers
  • Berman
  • Boucher
  • Nadler
  • Scott (VA)

But Denny Hastert appointed the following three people for reconsideration of the clauses pertaining to Section 215.

  • Hoekstra
  • Wilson (NM)
  • Harman

Those conferees were named on November 9. Then, five days later,  Hastert somehow added  to Dan Lungren’s role, though I’m not sure exactly how.

And conferees from the Senate were:

  • Specter
  • Hatch
  • Kyl
  • DeWine
  • Sessions
  • Roberts
  • Leahy
  • Kennedy
  • Rockefeller
  • Levin

Now, on the House side, Hastert made sure not to get any Republican like–most notably–Jeff Flake, who actually pushed through several of the amendments protecting civil liberties. So the House side was, predictably, stacked in favor of the House amendment with no protections tied to Section 215.

The Senate side is more interesting. The conferees consisted of SJC members (Specter, Hatch, Kyl, DeWine, Sessions, Leahy, and Kennedy), all of whom had voted for the amendments limiting application of Section 215 to people specifically tied to terrorism or foreign intelligence. The remainder were SSCI members (Roberts, Rockefeller, and Levin). Significantly, the conferees included both Republicans who sat on both committees–Hatch and DeWine–but neither of the Democrats who did–Feinstein and Feingold (both of whom, of course, were adamantly in favor of the Section 215 limits). Now presumably, the Senate allowed its own amendment to get replaced on this and other issues both because 1) Specter, though in favor of these civil liberties protections, was weak within his own party, and 2) there were more Democrats who had not voted in favor of the Section 215 controls than there were Republicans (and besides, neither Hatch nor DeWine much seem to care for civil liberties in the first place). In other words, Hatch and DeWine must have flipped their votes, with at least Specter, Rockefeller, or Levin acceding to those changes. 

In any case, the conference report came out with the House language intact. The House voted on the conference report on December 14, 2005. It was largely along party lines, though notably, Jane Harman voted in favor of the conference report. The Senate then immediately filed for cloture (which requires a two day wait), also on December 14. The Risen-Lichtblau story exposing Bush’s illegal wiretap program came out on December 15, which caused the cloture to fail on December 16 (Johnson and Ben Nelson voted for cloture; Craig, Hagel, Murkowski, Sununu, plus Frist, for legislative reasons, voted against). After several months and a great deal of lies from the Bush Administration on its illegal wiretap program, cloture was successfully invoked on March 1. Senate Democratic conferees Levin and Leahy voted against cloture; Kennedy and Rockefeller voted for. Both Levin and Leahy continued to oppose the bill when it was approved the following day. DiFi–who had warned against fishing expeditions–voted in favor of the bill both times.

Now, I’m going to return to discuss the timing of this. But for now, note simply that the Republicans stacked the conference in August and November 2005 to make sure the House language–and not the more restrictive Senate language–passed on reauthorization.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

16 replies
  1. LabDancer says:

    So now that Specter’s come closer to the light, you’ve closed out the chapters on haggis & spackle, & are hip deep in sausage? Does this answer the [burning] question of whether hanging around kagroX long enough gets one to humming oompa loompas?

    A little more seriously, do I take it that you’re suggesting that fed leos may have decided to use Zazi as a flavoring agent in the 215 preservative mix?

  2. MadDog says:

    Rockefeller voted for…

    I wonder if this could also be the genesis of Jello Jay’s later adamance that the Telcos (and Email providers like Comcast, Google, Microsoft, etc.) all be given retroactive immunity for their illegal acts under the TSP?

    His retroactive immunity voting position has always seem to strike me as one driven by complicity rather than one just driven by PAC funding or Telco lobbying.

  3. Rayne says:

    Weird. Why these three in particular, I wonder?

    Hoekstra
    Wilson (NM)
    Harman

    Well, besides the fact that Hoekstra is as dumb as a stump post and will do what he’s told (most of the time), ditto for Wilson because of her party loyalty.

    • emptywheel says:

      Well, there’s no big mystery in Hoekstra and Harman—they were the Committee leaders on HPSCI at the time. Just like Roberts and Rockefeller were on the conference.

  4. MadDog says:

    Perhaps not OT on the previous thread:

    No death penalty for embassy bomb suspect

    The U.S. government has decided not to seek the death penalty against a former Guantánamo detainee charged in the 1998 bombings of two U.S. embassies in Africa.

    A letter released Monday advises a federal judge that Attorney General Eric Holder told prosecutors not to seek the death penalty in the New York trial of Ahmed Ghailani. His trial is scheduled for September 2010.

    Authorities allege he was a bomb-maker, document forger and aide to Osama bin Laden. The attacks at embassies in Tanzania and Kenya killed 124 people, including 12 Americans…

  5. SmileySam says:

    Being a real newbie to this stuff how does this all justify the 95% use of this to bust the drug dealers instead of the terrorist ? Wasn’t this billed as a way to get the terrorists and no one else ?

  6. MadDog says:

    Totally OT – Steven Aftergood over at Secrecy News had this today:

    DoD Releases Military Intel Program Budget Docs

    Newly disclosed Department of Defense annual budget documents reveal the structure and some of the contents of the Military Intelligence Program that supports DoD operations…

    …Newly declassified budget justification books for the MIP help provide some insight into what all of that money buys. They present a capsule description of more than a hundred individual MIP programs along with a report on their current status, from the Advanced Remote Ground Unattended Sensor (ARGUS) to the Tactical Exploitation of National Capabilities (TENCAP) program, as well as the space-based Nuclear Detonation Detection System, the ever-green Space Radar program, and many more…

    …Some activities, such as the Special Operations Command program known as THORS MACE, are mentioned but were said to be too sensitive to describe even in the original classified budget documents…

    For example, the Military Intelligence Program – FY 2009 Congressional Justification Book, vol. I (redacted) is an almost 24 MB 300 page PDF.

    Twill take a lot of close reading to connect dots.

  7. radiofreewill says:

    So, if I’m reading you right, ’Log Cabin’ Denny Hastert put the fate Section 215 – in what would become the final bill – in the hands of:

    – ’Crazy’ Pete Hoekstra
    – Heather ’Money Fairy’ Wilson, and
    – Jane ’I’m not telling you if I voted with the Goopers’ Harman

    If so, then it sounds to me like Three Totally Compromised Politicians were assigned ’fixer’ duty by their handlers through the Totally Compromised Hastert (the Speaker of the House) – and they weren’t given any choice about it.

    IOW, the House was ’made’ to do the ’dirty’ work that the Senate wasn’t prepared to do – and it appears that the key players were all ’leveraged.’

    So, imvho, it seems that the story here is not only the legislative gutting of 215, but also the ’inside’ story on the ’tools’ that were ’used’ to do it.

Comments are closed.