Why Did FBI Need the Exigent Letters OLC Memo? (Background Post)

Yesterday, I did a post on what the DOJ IG Report on “Exigent Letters” revealed about the January 8, 2010 OLC opinion exploiting some kind of huge loophole in the Stored Communications Act. Today, I’m going to look at why–three and a half years after the abuse of exigent letters supposedly ended–Obama’s DOJ felt the need to get what DOJ Inspector General Glenn Fine appears to believe is a very dangerous opinion from OLC. After all, the FBI told Fine that “it does not intend to rely on” this opinion (or the interpretation of the law it gives). And, as I’ll explain at more length below, Fine seems reasonably satisfied with the FBI’s efforts to either legally justify or purge much of the data collected under the exigent letter program. So why go to the trouble of getting a new OLC opinion at this late date?

As background, the exigent letter program was a means by which the FBI got call data directly from AT&T, Verizon, and MCI without meeting legal guidelines for getting such information. The paperwork the FBI did give the telecoms was misleading because it claimed that the request was an emergency and it promised a grand jury subpoena to follow which usually never came. Eric Lichtblau reported that one aspect of this program–the community of interest analysis that AT&T provided, in which they would perform a six degrees of Osama bin Laden to find purported associates of terrorists–was a key aspect of Bush’s warrantless wiretap program. And since 2006 (perhaps because of the revelation of the warrantless wiretap program, but also, definitely, in response to Fine’s investigations of the practice), the telecoms and the FBI have tried to retroactively justify their practice. The OLC opinion appears to have been, at least partly, an attempt to invent a legal explanation that would finally do just that.

I made the following conclusions yesterday about what the OLC opinion did.

  • This OLC opinion may not relate exclusively to the use of exigent letters, not least because Inspector General Glenn Fine appears worried the FBI will use it prospectively, not just to retroactively rationalize abuses from the past.
  • Fine appears to suggest the FBI has misrepresented what it was doing with exigent letters in its request for an opinion to the OLC. This is at least the second time they have done so, Fine alleges, in their attempts to justify these practices. In this case, the dispute may pertain to whose phone records they were, what was included among them, and whether they pertained to an ongoing investigation.
  • My guess is that the OLC opinion addresses whether section 2701 of the Stored Communications Act allows electronic communication providers to voluntarily provide data to someone above and beyond the narrow statutory permission to do so in 2702 and 2709 of the Act. (Though see Julian Sanchez’ different take here.)
  • Whatever the loophole FBI is exploiting, it appears to be a use that would have no protections for First Amendment activity, no requirement that the data relate to authorized investigations, and no minimization or reporting requirements. That is, through its acquisition of this OLC opinion, the FBI appears to have opened up a giant, completely unlimited loophole to access phone data that it could use prospectively (though the FBI claims it doesn’t intend to). Much of Fine’s language here is an attempt to close this loophole.

In this post, I’m going to look at some background information that reinforces my argument that the OLC opinion may not relate exclusively to the exigent letters report (or what we see of it). In a follow-up post, I’ll look at some of the reasons why FBI may have felt the need to get this opinion.

The full Exigent Letters Report includes Top Secret intelligence information

Note that there are three versions of the Exigent Letters IG Report:

The Office of the Inspector General (OIG) has redacted (blacked out) from the public version of this report information that the FBI and the Intelligence Community considered to be classified. We have provided full versions of our classified reports–a Secret version and a Top Secret/Secure Compartmented Information (SCI) version–to the Department of Justice, the Intelligence Community, and Congressional committees. (PDF 14)

At the very least, this note tells us that there are two more layers to the Exigent Letters Report, even beyond the extensive redactions that appear in the sections on Community of Interest requests and journalists calls. And some of this information–the TS/SCI material–is highly classified.

And compare this notice of classified information on the Exigent Letters IG Report to the equivalent notice used with the 2008 IG Report on Section 215 and the 2008 IG Report on NSLs (the latter of which is intimately related to this report).

This report includes information that the Department of Justice considered to be classified and therefore could not be publicly released. To create this public version of the report, the OIG redacted (deleted) the portions of the report that the Department considered to be classified, and we indicated where those redactions were made. In addition, the OIG has provided copies of the full classified report to the Department, the Director of National Intelligence, and Congress.

These reports include classified annexes detailing programs not included in the body of the Report, but unlike the Exigent Letters Report, they don’t appear to have two separate classified versions. Furthermore, unlike the Exigent Letters report, those earlier reports identify where all classified information has been redacted; we don’t know that OIG has done that with this report. In other words, whereas we can get some outline of the sum of classified information hidden in the earlier reports, we can’t do so with this one, though we do know it’s highly classified.

The distribution may be different, too, with the Exigent Letters report going to “the Intelligence Community” rather than just the DNI, and with it going to Congressional Committees rather than Congress, as a whole. While I can’t be sure, the difference in distribution may suggest that certain people (SSCI, for example, as opposed to SJC) are getting the Top Secret rather than the Classified version of the report (remember, SSCI/SJC member Russ Feingold, SSCI member Ron Wyden, and SJC member Dick Durbin have called on Holder to release the OLC opinion “to Congress”). Or that operational units of the Intelligence Community (there’s a redaction on PDF page 38 suggesting that telecom employees at CAU were communicating with other parts of government using their FBI email accounts) are getting versions of the Exigent Letters report whereas only the DNI got the other two reports.

This report was drafted by the time the Combined IG Report on Warrantless Wiretapping report was released

As I noted yesterday, FBI reviewed and responded to a draft of this report by July 2009.

It is important to note that the FBI acknowledged in its July 2009 comments to a draft of this report that it had never considered or relied upon [several words redacted] when it obtained any of the telephone records at issue in this report.

That happens to be the same month the Combined IG Report on the Warrantless Wiretap program was released. After reading a draft of this report (though Fine doesn’t say it was explicitly a response to the report), FBI asked the OLC for the interpretation of its loophole.

However, after reviewing a draft of the OIG report the FBI asked the Office of Legal Counsel (OLC) for a legal opinion on this issue.

So FBI presumably had not only a draft of this report, but a draft of the warrantless wiretap report in hand when they requested the OLC opinion.

Now, as a reminder, DOJ IG did its own report on the warrantless wiretap program. It was sufficiently drafted by the time of the Combined report to be cited, repeatedly, in the body of the report. But the report could not have been complete in July 2009, because it still needed to incorporate the results of the OPR report on Yoo’s wiretapping memos, and that report was not yet complete (note, I’ve seen conflicting information on whether this is incorporated into the OPR report on Yoo’s torture memos, or is separate; I’m going to try to get some clarity on how these all fit together later).

Title III of the FISA Amendments Act required that the report of any investigation of matters relating to the PSP conducted by the DOJ Office of Professional Responsibility (OPR) be provided to the DOJ Inspector General, and that the findings and conclusions of such investigation be included in the DOJ OIG review. OPR has initiated a review of whether any standards of professional conduct were violated in the preparation of the first series of legal memoranda supporting the PSP. OPR has not completed its review.

Per the Combined report, the DOJ Warrantless Wiretap report included significantly more detail on:

  • The ways in which the description of the Other Intelligence Activities included in the warrantless wiretapping program John Yoo included in early OLC memos authorizing it were incomplete
  • How overly restrictive limitations on the number of DOJ personnel (particularly lawyers) read into the program created problems with the legality of the program and its information-sharing efficacy
  • The way in which the presiding FISC judges Lamberth and Kollar-Kotelly were informed of the warrantless wiretap program
  • The FBI’s participation in the warrantless wiretap program, particularly as a recipient of information collected in it
  • How DOJ and the FISC addressed the impact warrantless wiretap derived information had on the FISA process
  • DOJ’s handling of PSP information with respect to its discovery obligations in international terrorism prosecutions
  • Further details on the Comey-Goldsmith objections to the warrantless wiretapping program
  • Details on the transition from the warrantless wiretap program to the FISA-approved program from 2006 to 2007
  • An assessment of the value of the warrantless wiretap program to counter-terrorism efforts
  • An examination of several cases often cited as warrantless wiretapping successes
  • Conclusions about whether or not Alberto Gonzales lied to Congress about the warrantless wiretap program

Several of these issues are closely related to issues Fine treats in the Exigent Letters report, including the failure to give adequate legal review to the CAU program, the use of data collected using exigent letters to get FISA warrants, and efforts to clean up the program starting in 2006. So at the very least, Fine’s warrantless wiretap report closely parallels aspects of this one. Though given Lichtblau’s reporting that this program is related to the warrantless wiretap program, they are probably actually intimately related.

Of particular potential import with respect to the OLC opinion, the Combined IG Report revealed that the DOJ IG Report on the warrantless wiretap program had the following conclusion:

Based upon its review of DOJ’s handling of these issues, the DOJ OIG recommends that DOJ assess its discovery obligations regarding PSP-derived information, if any, in international terrorism prosecutions. The DOJ OIG also recommends that DOJ carefully consider whether it must re-examine past cases to see whether potentially discoverable but undisclosed Rule 16 or Brady material was collected under the PSP, and take appropriate steps to ensure that it has complied with its discovery obligations in such cases. In addition, the DOJ OIG recommends that DOJ implement a procedure to identify PSP-derived information, if any, that may be associated with international terrorism cases currently pending or likely to be brought in the future and evaluate whether such information should be disclosed in light of the government’s discovery obligations under Rule 16 and Brady.

As I’ll explain below, one of the most likely reasons FBI got the OLC opinion was to give some legal cover for data collections it either refused to, or could not, purge. As I’ll show, Fine has ongoing concerns about poison fruit data for only limited aspects of the exigent letter program. But at least last summer, when FBI requested the OLC opinion, he had significant concerns about poison fruit derived from the warrantless wiretap program.

The one FBI official who knew of the exigent letter program likened it to another classified FBI program

The Exigent Letter IG Report reveals that the only CXS official who admitted to knowing of the exigent letter program likened it to another classified FBI program.

The one FBI [CTD] official who told us that he knew about exigent letters at the time they were used was John Chaddic, the Assistant Section Chief of CXS from June 2003 to October 2004. Chaddic told us that in approximately June 2003 Rogers briefed him about exigent letters and described them as a “placeholder so that we could get the toll records and analyze them while we waited on the NSL.” Chaddic said he never saw an exigent letter but “wasn’t surprised” when he learned about the exigent letter process because the FBI could not afford to wait for the appropriate legal process in emergency situations when lives might be at risk. Chaddic also told us that he had assumed the use of exigent letters was addressed in the FBI’s contracts with the communications service providers. He also said that the concept seemed consistent with at least one classified FBI program ongoing at the time.

So we know that there was at least one other FBI program that one of FBI’s Counter-Terrorism Divisions managers knew about at the time in which data was collected before the legal process to justify the collection of the data was in place.

These three factors–the existence of a TS/SCI version of the exigent letters report, the evidence that FBI was dealing with poison fruit from both the exigent letter program and, to the extent it could be separated from it, from the warrantless wiretap program, and the description from a CounterTerrorism official that this program had similarities to another one (which may or may not relate to the warrantless wiretap program–are some of the reasons I think the January 8 OLC opinion may not relate solely to the exigent letter program, or at least not the parts of the exigent letter program that are unclassified. Rather, I think it likely that this opinion is one final effort to retroactively clean up the mess of Bush’s warrantless wiretap program.

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  1. JohnLopresti says:

    I wondered if the three telcos use the same standard issue att 5ess switch, and, like the e911 chip in cellphones, if the 5ess might have innate capacity to export the toll record. I also had considered congress* interest in doing a kind of patriot act bypass for cellphone manufacturers, might be post ipso facto a response to some currently extant (unpublished) olc opinion already implementing hypothetically legal snooping toll records. In a sense, 4th amendment issues seem to evanesce when facing these modern issues of cloud computing based communications, as nationstatefulness recedes before the need to apply algorithms instantaneously. Then there is the silo issue.

    • emptywheel says:

      Thanks for that. Any idea what vocabulary they’re using to refer to individual requests that they’ve redacted throughout? Its like a synonym for a query, I think (hell, maybe it is query, and they’re redacting it bc they don’t want it clear that this exists in a database).

      • WilliamOckham says:

        I was just checking on that. My guess is the word is “search”, but I’m going to fire up MS Word and see what fits.

        • WilliamOckham says:

          There’s something a little funky about that document. The font looks like it’s Times New Roman (DOJ default), but it doesn’t quite fit correctly. Maybe Fine’s office uses Macs…

        • WilliamOckham says:

          I live in a Microsoft only world, for the most part. I doubt the DOJ IG is using OpenOffice. More likely, it’s Macs or {shudder} WordPerfect (is that still around in lawyers’ offices? It disappeared from the rest of the world years ago).

        • PJEvans says:

          I figured that if it wasn’t TNR, that one of the other programs might have something closer. For Windows, Book Antiqua and Garamond also come to mind. (Waiting for Win98 machine to boot – it has the older version of MSOffice).

        • PJEvans says:

          Windows fonts more similar to TNR: Bookman, Century Schoolbook
          Windows fonts less similar to TNR: Book Antiqua

          (I have Garamond as an added font, along with the various ones that came with StarOffice).

        • Sparkatus says:

          Interesting, I’ve never encountered a government office that uses Macs. Have you? However, Wordperfect used to be the primary word processing program for all of EPA.

    • MadDog says:

      Based on your link, I think that supports the point I reiterated yesterday that the Telcos weren’t just a utility supplying the NSA with raw data, but were in fact equal complicit partners in the “community of interest” datamining and analysis.

      And probably still are.

  2. bobschacht says:

    EW,
    Thanks for your efforts to untangle this mess for us. Your document analysis skills are getting good exercise!

    BTW,the next to the last sentence seems to have an unmatched left parenthesis– I think you started the subordinate clause with a left parenthesis, and ended it with a dash instead of a right parenthesis?

    Bob in AZ

  3. pdaly says:

    Along EW’s line of thinking that this OLC opinion is part of a retroactive sort of legalization of past misdeeds:

    Since OLC opinion is traditionally binding on all executive branches, how can this OLC opinion also be TS/SCI? Can all the branches be part of the secret compartmented group? are some of the branches not actively involved in this issue?

    If it’s all secret and hidden from view, then against whose preying eyes are the FBI/OLC working so hard to fix things after the fact?

    • emptywheel says:

      We don’t know what the opinion itself is. The report comes in three versions: public/redacted, classified, and TS/SCI. Which means that some of the stuff that they were doing with exigent letters was compartmented. That doesn’t mean the opinion was.

  4. earlofhuntingdon says:

    It is past time for Dawn Johnsen to be hired or for the administration or she to withdraw her name.

    Mr. Obama has a choice. He can clean up the OLC – subsidiary staff can only do so much, even if they have the will, in the absence of the unit’s chief. Or, he can admit, explicitly or by action, that he has no intention of doing so, but, rather, of continuing to shovel his and his predecessor’s dirt under a now very lumpy carpet.

  5. emptywheel says:

    Here’s one other potentially relevant detail.

    We know from the EFF documents that they were trying to prevent Glenn Fine from getting oversight of NSA’s minimization and compliance in the IG report. That was in fall 2007. Of course he did get it, and he did start squawking about whether DOJ had minimized everything properly.

  6. emptywheel says:

    Oh, this is pretty funny.

    On the day after Fine released his second IG Report in this series, the SSCI staffers–then in the middle of drafting the FAA–were trying to game the IG provision in the Act to prevent FIne from getting any review of the program. (from my timeline of this)

    March 13, 2008: IG Report on NSLs, assessing corrective actions of FBI and describing NSL usage in 2006

    March 14, 2008: SSCI staffer states they would prefer to have Intelligence Inspector General conduct IG Review of warrantless wiretap program (suggesting opposition to Glenn Fine) (PDF 81)

  7. orionATL says:

    this post states very nicely my view of the terrorism “business”,

    a business which has richly benefited politicians, the military, and the media over the last decade.

    http://www.tomdispatch.com/blog/175206/tomgram%3A_engelhardt%2C_fear_inc.__

    as ample:

    [ Hold Onto Your Underwear

    This Is Not a National Emergency

    By Tom Engelhardt

    Let me put American life in the Age of Terror into some kind of context, and then tell me you’re not ready to get on the nearest plane heading anywhere, even toward Yemen.

    In 2008, 14,180 Americans were murdered, according to the FBI. In that year, there were 34,017 fatal vehicle crashes in the U.S. and, so the U.S. Fire Administration tells us, 3,320 deaths by fire. More than 11,000 Americans died of the swine flu between April and mid-December 2009, according to the Centers for Disease Control and Prevention; on average, a staggering 443,600 Americans die yearly of illnesses related to tobacco use, reports the American Cancer Society; 5,000 Americans die annually from food-borne diseases; an estimated 1,760 children died from abuse or neglect in 2007; and the next year, 560 Americans died of weather-related conditions, according to the National Weather Service, including 126 from tornadoes, 67 from rip tides, 58 from flash floods, 27 from lightning, 27 from avalanches, and 1 from a dust devil.

    As for airplane fatalities, no American died in a crash of a U.S. carrier in either 2007 or 2008, despite 1.5 billion passengers transported. In 2009, planes certainly went down and people died. In June, for instance, a French flight on its way from Rio de Janeiro to Paris disappeared in bad weather over the Atlantic, killing 226. Continental Connection Flight 3407, a regional commuter flight, crashed into a house near Buffalo, New York, that February killing 50, the first fatal crash of a U.S. commercial flight since August 2006. And in January 2009, US Airways Flight 1549, assaulted by a flock of birds, managed a brilliant landing in New York’s Hudson River when disaster might have ensued. In none of these years did an airplane go down anywhere due to terrorism, though in 2007 two terrorists smashed a Jeep Cherokee loaded with propane tanks into the terminal of Glasgow International Airport. (No one was killed.)

    The now-infamous Northwest Airlines Flight 253, carrying Umar Farouk Abdulmutallab and his bomb-laden underwear toward Detroit on Christmas Day 2009, had 290 passengers and crew, all of whom survived. Had the inept Abdulmutallab actually succeeded, the death toll would not have equaled the 324 traffic fatalities in Nevada in 2008; while the destruction of four Flight 253s from terrorism would not have equaled New York State’s 2008 traffic death toll of 1,231, 341 of whom, or 51 more than those on Flight 253, were classified as “alcohol-impaired fatalities…. ]

  8. Hmmm says:

    So this is somehow making me think maybe it’s actually the telcos who control the stored phone calls, in contrast to the earlier sense that it was some part of USG — maybe NSA, maybe DOD, maybe DHS, maybe FEMA; who knows. If that were the case, then whenever the USG wants to retrieve anything, they would have to go to the contractor-telco to do the actual work, and the full database would not be in USG hands. Would such an arrangement help explain any of the puzzling aspects of these opinion-seeking and oversight-evading behaviors?

    • bobschacht says:

      maybe it’s actually the telcos who control the stored phone calls

      This is an important suggestion that deserves closer scrutiny. After all, if the telcos are just holding the data for NSA et al. to mine, then laws telling NSA to minimize their data holdings wouldn’t apply, would it?

      Bob in AZ

  9. afterthought says:

    The global elite are creating a technological police state to restore the wealth and privilege they enjoyed before WWI.

    I can’t think of a single issue that trumps that one, including overpopulation.

  10. JohnLopresti says:

    WO@3, Thnx for the attLabs link. Historically, fifteen years ago, before BellLabs morphed into Lucent, and before mostly French-nationalized telco Alcatel subsequently bought Lucent, att in the turmoil of rboc dereg began its own r+d outfit attLabs. Disclosure, I hail from somewhat BellLabs corporateKultcha kin. BellLabs, throughout, preserved its reputation as world-quality excellence, a plateau of exaltedness which att*s attLabs was finding difficult to match. Nevertheless, the circle diagrams, like neural network theory, exhibit a certain math eloquence.