Two Data Points on Section 215 and Bush’s Illegal Program

I’ve been working on adding some of the dates from this FOIA to my warrantless wiretap FOIA, and I wanted to elaborate on two coincidences of timing I pointed out in this post. Mind you, I think we have to assume they’re just coincidences at this point, not causally related. But they do show that they show how Section 215 authority paralleled the events following the hospital confrontation.

First, as I had suggested earlier, the first Section 215 was granted just as the legal issues surrounding Bush’s illegal program came to a resolution following the hospital confrontation. In fact, the first 215 Order was granted the day after a big CYA document from Ashcroft, and 15 days after the new OLC memo for the program.

May 6, 2004, OLC memo from Jack Goldsmith for John Ashcroft: OLC 54 which consists of six copies, some with handwritten comments and marginalia, of a 108-page memorandum, dated May 6, 2004, from the Assistant Attorney General for OLC to the Attorney General, as well as four electronic files, one with highlighting, prepared in response to a request from the Attorney General that OLC perform a legal review of classified foreign intelligence activities. According to the IG Report, much of this was replicated in the January 6, 2006 White Paper.

May 20, 2004: Ashcroft writes memo stating it was not until Philbin and later Goldsmith explained to him that aspects of the NSA’s Other Intelligence Activities were not accurately described in the prior Authorizations that he realized that he had been certifying the Authorizations prior to March 2004 based on a misimpression of those activities.

May 21, 2004: FBI gets its first business record in response to Section 215 of the PATRIOT Act.

The other coincidence is earlier–and while almost certainly a coincidence, much more intriguing. Dick Cheney orders Robert Mueller to meet with him at the same time as FBI officials start referring to a new policy of bypassing OIPR, the legal review office, on Section 215 orders.

March 16, 2004, from Comey to Gonzales, cc’ed to Card: OLC 63 [the same as FBI 4] is a two-page memorandum (and related electronic file) dated March 16, 2004, from the Acting Attorney General to the Counsel to the President, copied to the President’s Chief of Staff, containing legal recommendations regarding classified foreign intelligence activities. IG Report explains, Comey advised that DOJ remained unable to find a legal basis to support certain Other Intelligence Activities (data mining) that had been authorized as part of the program and that such activities should be discontinued immediately. Comey cautioned that he believed some ongoing activities under the program raised “serious issues” about congressional notification, “particularly where the legal basis for the program is the President’s decision to assert his authority to override an otherwise applicable Act of Congress.” Gonzales replied:

Your memorandum appears to have been based on a misunderstanding of the President’s expectations regarding the conduct of the Department of Justice. While the President was, and remains, interested in any thoughts the Department of Justice may have on alternative ways to achieve effectively the goals of the activities authorized by the Presidential Authorization of March 11, 2004, the President has addressed definitively for the Executive Branch in the Presidential Authorization the interpretation of the law.

March 17, 2004: Bush modifies certain PSP intelligence-gathering activities and discontinues certain Other Intelligence Activities by issuing two modifications to his March 11, 2004 Presidential Authorization.

March 22, 2004. from Goldsmith to Comey: OLC 114 consists of two copies of a three-page memorandum dated March 22, 2004, to the Deputy Attorney General from the Assistant Attorney General for OLC, which confirms oral advice provided by OLC on a particular matter concerning classified foreign intelligence activities.

March 23, 2004: Mueller meets with Cheney, at his request, in his office.

March 24, 2004: Email to FBI General Counsel referring to “recent changes” to Section 215 allowing FBI to bypass OIPR.

When I say this is almost certainly a coincidence, I’m saying only that I think the Cheney meeting with Mueller cannot be related to the policy to bypass OIPR–the timing is too close. As to the rest of it–the efforts to put Bush’s illegal surveillance on more sound legal footing–might well have to do with the decision–I have no idea one way or another.

What I find interesting, though, is that at the same time that Goldsmith and Comey were trying to fix a program that worked by bypassing the FISA Court, and around the same time that Thomas Tamm, working in OIPR, discovered that program, at least one FBI office believed they had a green light to bypass OIPR itself on another counter-terrorism program.

Now, I need to go back to see whether FBI really did bypass OIPR–or at least, whether Glenn Fine reported as much in his report (I think they actually did work with OIPR on these). But the timing is mighty curious.

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.

7 replies
  1. perris says:

    Your memorandum appears to have been based on a misunderstanding of the President’s expectations regarding the conduct of the Department of Justice. While the President was, and remains, interested in any thoughts the Department of Justice may have on alternative ways to achieve effectively the goals of the activities authorized by the Presidential Authorization of March 11, 2004, the President has addressed definitively for the Executive Branch in the Presidential Authorization the interpretation of the law

    translation, and with no snark what so ever;

    “we say we can do it and that means we can, if the president does it that means it is NOT illegal”

    damn, nobody’s gonna do anything about this are they

  2. perris says:

    and off topic but something to look at, which I posted downstairs but I don’t know if you;ll see it;

    there’s an interesting development just up your alley reported at raw story

    after a state-funded report revealed in August that Texas may have executed an innocent man under the watch of Governor Rick Perry, the Texas Republican currently facing a steep re-election climb was quick to act in his own best interest.

    He replaced three members on the key committee charged with investigating the report’s truth, installing what CNN called a “political ally” to head up the Texas Forensic Science Commission.

    daylight must be shed here, he’s “pullin a palin” and investigating his own depravity

  3. WilliamOckham says:

    The ‘bypassing OIPR’ almost has to be related to Tamm. It looks like the FBI was laundering the illegal surveillance through requests for 215 and when Tamm figured it out, they just decidide to skip the OIPR review so that the laundering could continue.

    Your hit rate for success on 215 orders will be great when you already know what you’ll find.

    • emptywheel says:

      I don’t think so. First of all, it sounds like they were dealing with women in OIPR (there was a lawyer dealing with the illegal program who was female, for example). Plus there were several other people who were sticklers for the law in OIPR.

      The issue seems to be that OIPR was asking for more detail than FBI thought they needed given the wording of the law.

  4. Mary says:

    Another thing to keep in mind is that the Counsel for OIPR, James Baker, had some kind of knowledge of the unconstutional citizen surveillance program. Not only some kind of knowledge, but knowledge that the FISCt orders regarding the program were being violated. Not only knowledge, but knowledge he communicated to the FISC Chief Judge during that spring of 2004.

    In 2007, we also learned that while FBI was going through OIPR, they were making “mistakes” under their new “powers” to violate citizens. That was, very oddly imo, in a Solomon story in WaPo, where what we were primarily learning was that Baker briefed Gonzales in 2005, before Gonzales lies to Congressth: “The two officials spoke in a telephone call arranged by press officials at the Justice Department after The Washington Post disclosed yesterday that the FBI sent reports to Gonzales of legal and procedural violations shortly before he told senators in April 2005: “There has not been one verified case of civil liberties abuse” after 2001.

    So on things going through OIPR, it wasn’t just that they were asking for more detail, it’s that they were a witness to violations. Most criminals would rather off any witnesses if they can, and that’s basically what Mueller did – OIPR as a witness to FBI criminal conduct was *eliminated.*

    BTW, it looks like Ashcroft got similar briefings and Wainstein shows his true colors:

    “I have discussed and informed attorneys general, including this one, about mistakes the FBI has made or problems or violations or compliance incidents, however you want to refer to them,” said James A. Baker, a career official who heads the Justice Department’s Office of Intelligence Policy and Review.

    “I’ve discussed a number of times oversight concerns and, underlying those oversight concerns, the potential for violations. And I’m sure we’ve discussed violations that have occurred in the past,” said Assistant Attorney General for National Security Kenneth L. Wainstein.

    But Wainstein defended the 2005 statement by Gonzales that he was unaware of civil liberties abuses related to the government’s counterterrorism effort. Wainstein cited what he described as a dictionary definition of “abuse” in defending Gonzales’s remark.

    I wonder if subornation is a word in his dictionary?

    • bmaz says:

      I wonder if subornation is a word in his dictionary?

      Apparently not. Also, seems to not understand the difference between plenary and perjury.

    • Hmmm says:

      Wainstein cited what he described as a dictionary definition of “abuse” in defending Gonzales’s remark.

      Well, I suppose that’s a plausible statement, insofar as definitions 4, 10, and 12 wouldn’t apply:

      a⋅buse  [v. uh-byooz; n. uh-byoos] verb, a⋅bused, a⋅bus⋅ing, noun
      –verb (used with object)
      1. to use wrongly or improperly; misuse: to abuse one’s authority.
      2. to treat in a harmful, injurious, or offensive way: to abuse a horse; to abuse one’s eyesight.
      3. to speak insultingly, harshly, and unjustly to or about; revile; malign.
      4. to commit sexual assault upon.
      5. Obsolete. to deceive or mislead.
      –noun
      6. wrong or improper use; misuse: the abuse of privileges.
      7. harshly or coarsely insulting language: The officer heaped abuse on his men.
      8. bad or improper treatment; maltreatment: The child was subjected to cruel abuse.
      9. a corrupt or improper practice or custom: the abuses of a totalitarian regime.
      10. rape or sexual assault.
      11. Obsolete. deception.
      —Idiom
      12. abuse oneself, to masturbate.

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