Warrants for Innocent People Are Not Like Warrants for Suspects

As Charlie Savage reports, Ron Wyden and Mark Udall have written Eric Holder scolding him for mischaracterizations DOJ has made about how the government is using the Patriot Act, in part to collect information on people’s location.

They cite two examples of such mischaracterizations: First, when a number of Justice Department officials claimed,

that the government’s authority to obtain business records or other “tangible things” under section 215 of the USA Patriot Act is analogous to the use of a grand jury subpoena.


As you know, Section 215 authorities are not interpreted in the same way that grand jury subpoena authorities are, and we are concerned that when Justice Department officials suggest that the two authorities are “analogous” they provide the public with a false understanding of how surveillance is interpreted in practice.

What they don’t say, but presumably mean to suggest, is that the claim Section 215 is like a grand jury subpoena is false, since the latter are routinely used to collect the “tangible things” (and even ephemeral things like cell phone tracking data) of completely innocent people.

Section 215 is not like a grand jury subpoena because you don’t even have to be connected to a crime (or suspected terrorist or spy) to be caught in the surveillance it has been used to authorize.

Wyden and Udall’s second complaint pertains to word games played by DOJ spokesperson Dean Boyd in speaking to Al Jazeera English; I’ve bolded the passage they object to.

US Justice Department public affairs officer Dean Boyd dismissed the senators’ allegations. “It’s quite unfortunate that your facts are so incorrect,” Boyd told Al Jazeera English when asked about Wyden and Udall’s comments.

Boyd highlighted one provision of the Patriot Act in his response, Section 215. “Contrary to various claims in recent months and years, Section 215 is not a secret law, nor has it been implemented under secret legal opinions by the Justice Department,” he said.

Boyd’s dodge, it appears, is that DOJ hasn’t gotten an OLC opinion; they’re relying solely on FISC opinions.

This statement is also extremely misleading. As the NSA General Counsel testified in July of this year, significant interpretations of section 215 of the Patriot Act are contained in classified opinions of the Foreign Intelligence Surveillance Court and these opinions–and the legal interpretations they contain–continue to be kept secret. In our judgment, when the government relies on significant interpretations of public statutes that are kept from the American public, the government is effectively relying on secret law.

There are two problems that Wyden and Udall’s letter present, which they don’t lay out themselves.

First, after noting that warrants for people who are not suspects are not like warrants for suspects, the Senators observe that DOJ officials have made misleading claims to the contrary to Congress. They seem to be reminding Holder that it is a crime to lie to Congress.

Or, at least, it used to be. Given DOJ’s treatment of Scott Bloch, who as a DOJ employee lied to Congress, it’s clear that DOJ is unlikely to allow its own employees to go to jail for lying to Congress. Perhaps Senators Wyden and Udall would like to make a stink about that? Otherwise, their implicit threat of legal consequences for these lies is completely impotent.

The other problem–one they probably can’t lay out in an unclassified letter–is the precedent of the In re Sealed Case decision by FISCR. As I’ve laid out, Cheney’s illegal wiretap program appears to have been in tension if not outright conflict with the FISCR for a year and a half, until Jack Goldsmith purportedly resolved that conflict with specious (though still classified) arguments. Given that DOJ has apparently not laid out what they’re actually doing with Section 215 and geolocation in an OLC memo, it increases the likelihood that the language of the FISC opinions may not precisely apply to the behavior of DOJ (as an OLC opinion might). Furthermore, in that previous case, DOJ sent a bunch of lawyers who weren’t even briefed into relevant activities to argue before the court.

There’s no affirmative evidence DOJ is doing such things in this case. But the In re Sealed Case precedent, the unexplained chose not to get OLC to approve this activity, as well as the Obama Administration’s precedent of overriding OLC when its lawyers counseled against continued Libyan bombing all raise real questions about the legal process by which the Administration came to claim this stuff has some kind of legal sanction.

In other words, while the bigger issue in this letter seems to be the government’s continued pretense that warrants for surveiling innocent Americans are just like warrants for investigating suspects, I’m beginning to suspect the bigger story is the unusual means by which the Administration got “authority” to spy on innocent Americans.

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. MadDog says:

    One of the things that bothered me last night after reading this latest piece from Charlie Savage was the guarded, vague, and euphemistic way he described the government’s activities:

    “…secret domestic surveillance activities that the government is apparently carrying out under the Patriot Act…

    …a secret, sensitive intelligence program…

    …some kind of unspecified domestic surveillance…”

    First of all, Charlie Savage must certainly know that the Senators have previously described that they have a problem with the “geolocation surveillance” being done under color of the law.

    So, did the Charlie Savage piece not describe this “geolocation surveillance” because:

    a) The NYT editors left it on the cutting room floor.
    b) Charlie Savage himself is not aware of this “geolocation surveillance” description.
    c. Charlie Savage is aware that “some kind of unspecified domestic surveillance” is something else altogether.

    EW, I know you’ve tweeted back and forth with Charlie (and perhaps emailed back and forth). Would you contact him to see why his piece did not use the “geolocation surveillance” description?

  2. Jim White says:

    They seem to be reminding Holder that it is a crime to lie to Congress.

    Or, at least, it used to be.

    Those two sentences, to me, sum up the entire problem. Lying to Congress is now encouraged and routine.

  3. bmaz says:

    Couple of tangential points:

    1) Scott Bloch!?!? Wow, that’s a blast from the past! Is he still alive? I am submitting his name to that MTV “Where Are They Now?” show.

    2) I couldn’t sleep for squat after the Troy Davis tragedy last night, so I was laying in bed at the crack of dawn watching Mike & Mike on ESPN2. They have spent the whole morning cracking up over Roger Goodell’s “stern letter” to NFL teams not to fake injuries to delay the game as the NY Giants did Monday night against the Rams. The guys just about roll out of their chairs every time they say “stern letter”. Conyers, Nadler and Leahy should be proud.

  4. Mary says:

    Elliot Abrams – convicted, pardoned, openly serving in successor admins and used as a media expert and to put together Exec policy over which Congress refused to exercise oversight.

    Holder defers to Obama on whether a lie to Congress is really a lie – especially on National Security issues. After all, isn’t Congress, if not the “hot” battlefield, at least the lukewarm one? (/snark)

    Still, it’s kind of like that tree falling in the forest thing, isn’t it? If the people who would be prosecuting the crime ar committing it and no one else can prosecute it, is it a crime?

    que to the stories on soup kitchens and kittens.

  5. Hmmm In Absentia says:

    Unless something along the lines of the set-top cable box surveillance thing is actually real, and that’s what they mean.

    (Hi friends, sorry to be away so long; life events should resolve soon and I hope to be back with you again soon. I like the new digs!)

  6. macdust says:

    Future law students will howl contemptuously at the proposition that a search did not take place if you erase the evidence that it did, but the official theology of secret due-process in our time holds that time is reversible.

    So it is my dumb hope that Wydan and Udall are preparing legislation prohibiting even secret courts from saying that just because you erased the index to the files you searched doesn’t mean you didn’t search them.

    Pending legislation would explain why the Department of Justice would now cling to the grand jury’s right to sniff as long as it keeps secret anything it does not refer for action.

    Shifting the Secrets Court rationale away from the time-reversal sham would allow programs to continue if they pertain to specific suspicions of crime or corruption, but the National Security Agency would have almost nothing to do domestically in that case.

    And it does have almost nothing to do, which is why it is doing this to us.

  7. Bob Schacht says:

    “Still, it’s kind of like that tree falling in the forest thing, isn’t it? If the people who would be prosecuting the crime ar committing it and no one else can prosecute it, is it a crime? ”

    I thought that nothing is a crime until the courts say it is. And of course, I mean a crime by a specific person for specific indictments?

    Isn’t this tied to the “innocent until proven guilty” thing? Not that I am defending the administration, many of whose high ranking members should be in jail.

    Bob in AZ

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