FISC Opinions as Legal Cover

WSJ has a story on how the FISA Court came to render the phrase “related to” — which has been used for 7 years to collect the phone records of almost all Americans — entirely meaningless.

The history of the word “relevant” is key to understanding that passage. The Supreme Court in 1991 said things are “relevant” if there is a “reasonable possibility” that they will produce information related to the subject of the investigation. In criminal cases, courts previously have found that very large sets of information didn’t meet the relevance standard because significant portions—innocent people’s information—wouldn’t be pertinent.

But the Foreign Intelligence Surveillance Court, FISC, has developed separate precedents, centered on the idea that investigations to prevent national-security threats are different from ordinary criminal cases. The court’s rulings on such matters are classified and almost impossible to challenge because of the secret nature of the proceedings. According to the court, the special nature of national-security and terrorism-prevention cases means “relevant” can have a broader meaning for those investigations, say people familiar with the rulings.

The story specifically says FISC issued the decision authorizing the use of Section 215 to collect phone records in May 2006, in the wake of the exposure of Dick Cheney’s illegal dragnet (and after Congress had included the “relevant to” language in the PATRIOT Act reauthorization).

But in May 2006, the secret court agreed that, even with the addition of the word “relevant,” bulk phone records could also be collected under the law.

The legal interpretations required to make this change were “aggressive,” says Timothy Edgar, a former top privacy lawyer at the Office of the Director of National Intelligence and the National Security Council in the Bush and Obama administrations. Still, considering that the program previously had less congressional or court oversight, many lawmakers saw this as a step forward, he says.

“It wasn’t seen that we’re pushing the boundaries of surveillance law here,” Mr. Edgar says. “It was the very opposite. You’re starting from a huge amount of unilateral surveillance and putting it on a much sounder legal basis.”

Indeed, the way Edgar justifies this crazy distortion of the term “relevant” is by pointing to Cheney’s illegal program, as if that made it right.

But WSJ also describes this May 2006 decision as one in a series of decisions starting in “mid-2000s.”

In classified orders starting in the mid-2000s, the court accepted that “relevant” could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling.

The timing is significant. Remember, FBI hadn’t used Section 215 in the post-9/11 era until the period Jack Goldsmith and Jim Comey started challenging the illegal program’s legality; FBI got their first Section 215 order approved — MIRACLES! — on May 21, 2004. FBI at least temporarily sidestepped DOJ’s Office of Intelligence Policy and Review to employ this standard.

On March 23, 2004 at noon, less than two weeks after the dramatic hospital confrontation and threats to quit reportedly got the Administration to agree to stop data mining Americans, FBI Director Robert Mueller had a meeting with Dick Cheney, at the Vice President’s request, in the Vice President’s office. In his notes, Mueller doesn’t describe what the VIce President wanted, nor am I aware that it has even been reported in the press.

The next day, the Chief Division Counsel of some Division of the FBI wrote a memo to the FBI General Counsel noting that FBI was using a “new standard” with Section 215 of the PATRIOT Act and indicating that a “recent decision” had been made to bypass the review of the Office of Intelligence Policy and Review on Section 215 applications.

In part, the apparent decision to bypass OIPR, which had rejected the premise of the previous Section 215 orders FBI had submitted in the past, reflected no more than a concerted effort on FBI’s part to make sure it could start using all the PATRIOT authorities it had been granted in 2001 in anticipation of renewal discussions that would take place the following year. Yet the timing of this change is particularly curious, given that we now know Section 215 has been used to collect data that could be used for data mining Americans, precisely the problem that had caused the hospital confrontation 12 days earlier.

At the very least, however, it shows that sometime around the same time as Jim Comey and others at DOJ tried to stop the data mining of Americans under NSA’s illegal program, FBI claimed to have eliminated one review step for Section 215 orders and changed the standard used for them. That reference notwithstanding, DOJ Inspector General at least reported that OIPR continued to have a role. (Note, the office that got cut out of the process, OIPR, is where one of the key whistleblowers on the illegal program, Thomas Tamm worked, though I have asked him if he knew whether they used Section 215 to accomplish the same program and he didn’t know anything about it.)

On May 21, 2004, just as the the confrontation was settling down, FBI got its first Section 215 order approved. MIRACLES! the memo subject line read. “We got our first business record order signed today. It only took two and a half years.”

And consider the other odd thing about all this. There is a part of FISA specifically designed to return phone records, the Pen Register/Trap & Trace procedure (the one used starting in 2004 for Internet metadata). So why didn’t they use that?

In any case, this increasingly appears to be the end result of an effort on the part of FISC to remain relevant by distorting law in secret, in the hopes that an unconstitutional expansion of the law in secret was better than actually stopping an illegal program conducted by bypassing the court altogether.

The reason the law is so twisted is because no one wanted to — or believed they had the ability to –rein in gross violations of law conducted by Dick Cheney.

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. joanneleon says:

    I was glad to see this story in the WSJ but couldn’t read it because of the paywall. This FISC story really really badly needs to be told in bite-sized pieces. Some conversations over this long weekend were so frustrating in that it made me realize how many people just don’t get it. As in, really don’t get it.

  2. SpanishInquisition says:

    “The reason the law is so twisted is because no one wanted to — or believed they had the ability to –rein in gross violations of law conducted by Dick Cheney.”

    It’s not illegal if the [Vice] President does it /s

  3. orionATL says:

    does this not severely damage, or destroy, the credibility of the president’s assertion of adequate “checks and balances” on the nsa spying program?

    as an aside, credit where credit is due. the corporate media, as least the writing part, keep chipping away at the wall of secrecy hiding nsa’s spying.

  4. orionATL says:


    question for president obama:

    have you actually seen and read (at least in summary) the rulings of the fisa court?

    are you sufficiently knowledgable about that body of decisions to make legitimate assurances to us?

  5. Orestes Ippeau says:

    I thought you were terrific on the Virtually Speaking Sunday wrap rap last night; way more sure of your stuff than the others. Especially liked the “I don’t wanna talk about that, I wanna talk about this”; I wish pols were as direct as that.

    One thing the WaPo story has going for it: in comparison, Litchau’s stenography for Alexander, Hayden and McConnell is a way worse bag of poop (tho, I imagine there’s some ‘skill’ in being so transparent about it).

  6. Mindrayge says:

    If you look at the “Mukasey Memorandum” published by The Guardian you will find the following:


    Pen Register and Trap and Trace Provisions (U)

    The pen register and trap and trace surveillance provisions of PISA, 50 U.S.C. 1841-1846, and of the criminal law, 18 U.S.C. 3121-27, do not apply to the communications metadata analysis that NSA wishes to conduct.

    First, for the purpose of these provisions, “pen register” is defined as “a device or process which records or decodes dialing, routing, addressing or signaling information.” 18 U.S.C. 3127(3); 50 U.S.C. 1841(2)- When NSA will conduct the analysis it proposes, however, the dialing and other information will have been already recorded and decoded.

    Second, a “trap and trace device” is defined as “a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing and signaling information.” 18 U.S.C. 3127(4); 50 U.S.C. Again, those impulses will already have been captured at the point that NSA conducts chaining. Thus, NSA’s communications metadata analysis falls outside the coverage of these provisions.


    They use the Business Records Order to collect the telephony metadata to avoid Pen Register/Trap and Trace.

    Even though they go through all of the hoops to cite Smith v. Maryland and Katz they absolutely work around it. I happen to think it has to do with the Telecommunications Act of 1996 in particular that part codified at USC Title 47 Chapter 5 Subchapter II Part I Section 222 that is entitled “Privacy of customer information”.

    Further, by obtaining this information via the Business Records provision they side step the whole issue (at least they think so) of whether they are conducting a “search” or “seizure” (within the 4th amendment meaning) because the data they intend to analyze (search) was already collected constitutionally. It appears elsewhere in pieces but one footnote from the memorandum is concise:

    9 In addition, section 2.5 of Executive Order 123 33 provides that the “Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes.” Because individuals have no reasonable expectation of privacy in the types of metadata at issue here, no warrant would be required to analyze this information for law enforcement purposes. In addition, the analysis of information legally within the possession of the government is likely neither a “search” nor a “seizure” within the meaning of the Fourth Amendment. See note 4, supra. Section. 2.5 thus does not require the Attorney General to approve NSA’s proposed analysis of communications metadata. (S)

    The context of the Mukasey Memorandum is “contact chaining” and unlike the Draft NSA IG Report that suggests only 2-level contact chaining what this document was seeking approval to do had no 2-level limit or any limit at all.

    A bit off topic at the end here, my apologies.

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