DiFi’s Circular Defense of the Phone Dragnet’s Legality Proves It Is Illegal

In the report on her own Fake FISA Fix, DiFi makes this case that the phone dragnet program is not illegal.

First, in reference to the call records program, some people will say that the FISA Improvements Act codifies an illegal program. It does not. This legislation does not provide any new legislative authority with which the government may acquire call records or any other information under Section 215—in fact, it narrows the existing authority for it. Section 2 of the FISA Improvements Act clearly prohibits the use of the Business Records authority to collect bulk communication records except through the supplemental procedures and restrictions required by this section, as are detailed in this report.

As part of this previously classified program, in 2006, the Department of Justice sought approval from the FISA Court to collect call records in large number under the Section 215 Business Records provision. The FISA Court approved that request, and has reviewed and renewed that authority every 90 days for the past seven years. These renewal applications have been approved by at least 15 different federal court judges selected by the Chief Justice of the United States to serve on this Court.

The Department of Justice’s legal analysis of the call records program has recently been publicly released, as have the two most recent opinions by the FISA Court as part of the reauthorization of the program every 90 days.

Critics of the program may dispute the legal reasoning, but there should be no disagreement that this program currently is authorized under law and has been determined to be legal and Constitutional by the Executive and Judicial branches. [my emphasis]

Her rebuttal that this doesn’t codify the program is pretty funny given that just 1 paragraph earlier she talks about “codifying existing privacy protections,” which is the equivalent claim.

I’m more interested in what she doesn’t address.

She lays out how DOJ applied for and got authorization to collect this data in 2006 (she doesn’t say what date).

She points to two FISC court opinions — the one that forgot to address Jones and the one that cleaned up that obvious error — and the Administration White Paper. And she claims that’s “the legal reasoning.”

But of course, it’s not. There was either legal reasoning dated February 24, 2006 that they’re hiding, or there was an absence of legal reasoning, which ought to be a major giveaway in either case.

Moreover, all three documents DiFi points to as “the legal reasoning” suffer from a critical flaw. They all point to Congress’ “fully informed” reauthorization of the law to justify the validity of the law today.

But that “fully informed” reauthorization didn’t happen.

Indeed, DiFi’s own comments on the Fake FISA Fix twice tacitly admit that, when she notes that every member of the Senate got a chance to read notice on the dragnet, while remaining silent about the House.

In addition, information concerning the bulk telephone metadata program has been made available to every member of the Senate prior to the reauthorization of Section 215, most recently in 2011.


For example, the NSA telephone metadata program was approved by federal judges and overseen by Congress, where every member of the Senate had access to information concerning how the programs were conducted and an opportunity to voice objections and debate their efficacy.

The White Paper goes even further. It obliquely admits not just that Mike Rogers refused to allow the House to learn about the dragnet before they voted on it.

An updated version of the briefing paper, also recently released in redacted form to the public, was provided to the Senate and House Intelligence Committees again in February 2011 in connection with the reauthorization that occurred later that year. See Letter from Assistant Attorney General Ronald Weich to the Honorable Dianne Feinstein and the Honorable Saxby Chambliss, Chairman and Vice Chairman, Senate Select Committee on Intelligence (Feb. 2, 2011); Letter from Assistant Attorney General Ronald Weich to the Honorable Mike Rogers and the Honorable C.A. Dutch Ruppersberger, Chairman and Ranking Minority Member, House Permanent Select Committee on Intelligence (Feb. 2, 2011). The Senate Intelligence Committee made this updated paper available to all Senators later that month. See Letter from Sen. Diane Feinstein and Sen. Saxby Chambliss to Colleagues (Feb. 8, 2011). [my emphasis]

But it also, even more obliquely, admits that the Executive did not provide the legal reasoning in question until August 16, 2010, after PATRIOT was reauthorized the first time.

Moreover, in early 2007, the Department of Justice began providing all significant FISC pleadings and orders related to this [Section 215] program to the Senate and House Intelligence and Judiciary committees. By December 2008, all four committees had received the initial application and primary order authorizing the telephony metadata collection. Thereafter, all pleadings and orders reflecting significant legal developments regarding the program were produced to all four committees. [my emphasis]

So to sum up DiFi’s legal defense of the dragnet:

  1. Three documents say it is legal
  2. All 3 documents say it is legal largely because Congress has reauthorized a previously legally suspect program
  3. One of those 3 documents that says it is legal because Congress reauthorized a legally suspect program admits (obliquely) that Congress was not fully informed either time it reauthorized that suspect program
  4. DiFi’s document pointing to these 3 documents claiming it is legal because Congress reauthorized a legally suspect program also admits Congress was not fully informed when it reauthorized that suspect program

I’m convinced! DiFi has made the case! The program does not, because of the ample notice problems in the past, fulfill the standards which the 3 documents require it would need to meet to be legal.

But it might be if her Fake FISA Fix becomes law.

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.

15 replies
  1. Snoopdido says:

    I once commented on this blog that we should all beware that sooner or later someone would suggest a solution to the NSA’s problem regarding keeping all of American public’s data at the NSA, and that the offered solution would be for the FISA court to hold that data as well as the IT staff to support it.

    It looks like the (in)famous Rand Corporation, long one of the US government’s primary consulting think-tanks, has just done so – After NSA spying revelations, US must reform rules on secrecy and data – http://www.csmonitor.com/Commentary/Opinion/2013/1113/After-NSA-spying-revelations-US-must-reform-rules-on-secrecy-and-data:

    “The Foreign Intelligence Surveillance Court (FISC) was created under the 1978 FISA law as an independent institution to oversee surveillance of suspected foreign agents inside the United States. In modern times, terrorism has increased the number of potential targets, and technology has made them more difficult to isolate. Some trolling, searching, and sweeping became necessary. But that entirely upset the balance of oversight. The NSA vacuumed up data, and the FISA court was reduced, in the two instances that have become public, to reprimanding NSA for not following guidelines.

    Reform could work like this: A beefed up FISA court holds all the personal data collected, but in an encrypted form. The NSA could then use “digital search warrants” to ask the court for access to specified data sets. NSA and the court could then negotiate over the terms.”

    As I said then, watch out! This may end up being the “compromise” solution between the competing factions in Congress. It will be presented as somehow safeguarding the 4th Amendment rights of Americans when it does exactly the opposite.

  2. bloodypitchfork says:

    quote:”As I said then, watch out! This may end up being the “compromise” solution between the competing factions in Congress. It will be presented as somehow safeguarding the 4th Amendment rights of Americans when it does exactly the opposite.”

    As you said then. right Notwithstanding….watch out.. when do you propose we do something besides accept “exactly the opposite”. What do you suggest besides picking up a weapon and joining those who finally understand these fuckfaces will kill you eventually?

  3. bloodypitchfork says:

    @Snoopdido: quote:”Reform could work like this…”

    Reform. sheeezus. What part of emptywheels last 6 months of reporting don’t you understand? Delusional aside..I have a suggestion for you. …

    get a grip. Now, just in case you don’t understand what part you have to get a grip of..it might help if you understand what the real thing is you are gripping…


  4. Anonsters says:

    A very minor, very subtle quibble. You say:

    Her rebuttal that this doesn’t codify the program is pretty funny given that just 1 paragraph earlier she talks about “codifying existing privacy protections,” which is the equivalent claim.

    By “the program” you mean the bulk collection of telephony metadata under Section 215, and I will use it the same way.

    The problem is that Feinstein, in the report linked to and quoted, did not claim that her Fake Fix “doesn’t codify the program” full stop. Rather, she claims that it doesn’t codify “an illegal program.”

    Suppose arguendo the program is illegal. That means that there is no authority in existing law for the program. It’s ultra vires, as they say. A bill to codify the program (full stop) would thus provide that currently-missing statutory authority. That would, indeed, be “codifying an illegal program.”

    Note, however, that she claims that her bill “does not provide any new legislative authority” to the government. So, my interpretation of her comments tracks pretty well so far. Here’s where the quibble comes in: Feinstein’s claim is not “equivalent” (as you say) to a claim that the bill “codif[ies] existing privacy protections,” which she says her bill would do.

    Feinstein believes that the program is authorized under Section 215—that, in other words, the FISC’s interpretation of Section 215 as authorizing the program is sound. Suppose arguendo that is the case. (Of course, even if the interpretation isn’t sound, it’s still the legally binding interpretation under which everyone is operating at present. So soundness doesn’t really matter, so much as the brute fact that the current interpretation is the current interpretation. But set that aside for now and suppose that the interpretation is sound.) Then right now Section 215 authorizes the program. Even repeating the FISC’s interpretation verbatim as new legislative text wouldn’t “provide any new legislative authority” for the program. It would simply restate the authority already interpreted to exist in 215.

    What codifying the existing FISC interpretation does do, though, is to guarantee that the FISC, in future, won’t decide to loosen the privacy protections it currently requires the government to observe—because, as part of the amended statute, the FISC couldn’t loosen them. Right now those privacy protections are simply court- and agency-ordered. Just as the court decided they were appropriate, it could in future decide that they’re inappropriately stringent. Codifying existing privacy protections thus adds a requirement to the authority for the program already interpreted to exist. That’s why Feinstein’s claim that her bill codifies existing privacy protections is not equivalent to a claim that her bill codifies an illegal program.

    That said, though, Feinstein is being disingenuous, just not quite in the way you accuse her. Codifying the existing FISC interpretation—aside from making existing privacy protections statutorily required—also essentially guarantees that the FISC, in future, won’t decide that the program actually falls outside the scope of Section 215. Feinstein acknowledges that people disagree with FISC’s expansive interpretation of 215. But, she says, it’s currently the legally binding one. And she’s absolutely right about that. What she fails to acknowledge, however, is that by codifying the current FISC view, she would foreclose the possibility of ever challenging the current FISC view.

    Just as the FISC interpreted 215 in a way favorable to the government, it could later decide those interpretations are erroneous and so decide unfavorably, thus ending the program. Feinstein’s bill forecloses that possibility.

    Feinstein’s bill also makes it less likely that the FISC would interpret 215 as requiring more stringent privacy protections, because if Congress explicitly mandated the presently existing ones, it will be deemed to have done so intentionally—i.e., FISC will interpret Congress as having intentionally chosen not to require anything stronger. Therefore, it would be next to impossible to argue that 215 actually requires something stronger.

    So, my quibble is that Feinstein’s claim that her bill doesn’t codify an illegal program is not equivalent to her claim that her bill codifies existing privacy protections. Feinstein’s quite careful in her verbiage. It’s important to recognize that, because far more important than what Feinstein carefully says is what Feinstein carefully omits. And calling her on what she’s omitting to say will make it possible to catch her out, whereas calling her out for something she hasn’t said will just be a distraction.

  5. bloodypitchfork says:

    So…I get it…”“DiFi’s Circular Defense of the Phone Dragnet’s Legality Proves It Is Illegal”. Now that we understand..what do you propose to do about it besides tell us? Seriously.

  6. bloodypitchfork says:

    @Anonsters: quote:”Feinstein believes..”


    So what? Even if she does. What, besides tell the world what you believe Feinstein believes would you do even if it was true?

  7. bloodypitchfork says:

    quote:”What she fails to acknowledge, however, is that by codifying the current FISC view, she would foreclose the possibility of ever challenging the current FISC view.” unquote

    Far out. Now that we’ve established the fact that Feinstein fails to acknowledge the 1st and 4th Amendments…now what?

  8. Anonsters says:

    A second, and potentially more serious, problem in your argument has to do with the claim that the reauthorization of Section 215 doesn’t make FISC’s interpretation of 215 binding, because Congress was not fully informed thereof.

    But there seem to be two different “not fully informed” claims being made simultaneously, without distinguishing them:

    (1) Congress was not fully informed, because prior to reauthorization some House members were prevented from seeing the administration’s reports submitted to Congress that laid out the scope of the program.

    (2) Congress was not fully informed, because the administration failed to provide the intelligence committees the FISC’s legal rationale underlying its authorization orders until August 2010, whereas that legal rationale existed in memorialized form as early as 2006.

    To me, (2) is potentially more damning than (1).

    With respect to 215, the administration is only required to make certain reports to the congressional intelligence committees (and in certain cases the judiciary committees). What the congressional committees choose to do thereafter, in terms of providing access to those reports to all the other members, is wholly up to the committees themselves. Now, it is completely in the administration’s interest to try to find ways to make sure all members are aware of what’s up. That’s why the administration’s letters mention the importance of letting all members see the reports that are being submitted to the intelligence committees. But once the administration submits those reports to the intelligence committees, its obligation is fulfilled.

    Now, what HPSCI did, in preventing access to the reports by other members, might tend to rebut the presumption that Congress has worked in regular order. However, there are other factors that might come into play to support the presumption, too. For example, if the congressional intelligence committees knew of the scope of the program, that might be deemed sufficient to establish that Congress knew, since Congress itself has delegated responsibility for oversight of intelligence programs to the intelligence committees. I have no idea. You can dream up other arguments. So that might get pretty murky.

    Not least because there’s no real way for all the evidence of HPSCI tomfoolery to make its way before FISC. Thus the incredible stupidity and danger of a non-adversarial secret court.

    (2) above seems potentially more damning because it would represent a breach, by the Executive, of an affirmative statutory obligation, whereas (1), as I’ve said, would at most provide evidence tending to rebut the presumption that Congress knew what it was doing when it reauthorized 215 (and even then it’s not clear to what extent that evidence would suffice to rebut the presumption).

    The problem, again, is how do you get evidence of administration malfeasance before the FISC? It can’t take judicial notice of news reports as established fact. Congress doesn’t have standing to present evidence to FISC directly. Once again, the utter stupidity and dangerousness of a secret, non-adversarial court.

  9. Anonsters says:


    Me? I’d go with the Leahy-style “kill it with fire” approach.

    But it’s still important, all the same, to be careful about other people are saying and not saying. You can’t even begin to have a debate if all you do is talk past each other.

  10. Anonsters says:


    The better hope here has been, is, and likely always will be (until we manage to get a decent majority of Supreme Court justices, anyway) the statutory one. That’s what I meant by foreclosing a challenge to FISC’s view—a challenge based on statutory construction, which seems far more likely to succeed, given how dubious FISC’s interpretation is.

    Whereas, if you hang your hat on the Supremes coming down your way in favor of expanded 4th Amendment protections, well… good luck with that.

  11. emptywheel says:

    @Anonsters: Fair point.

    Though I would make a distinction between what FISC has authorized and what a court has authorized for defendants with standing.

    In related news, Basaaly Moalin lost his bid for a new trial today.


    That would hold that both in FISC and in a traditional Article III Section 215 is legal.

    That said, Miller relied on McLaughlin’s decision in his order. If McLaughlin’s decision is flawed because it rests on the approval Congress gave it (it is), then things might get interesting.

    We shall see.

    But thanks for your comment–point well taken.

  12. emptywheel says:

    @Anonsters: Ah, didn’t see this comment when I made my first one.

    The most interesting part of Miller’s ruling is his apparent suggestion that some of the new disclosures are not admissible (the defense, as far as I know, did not argue the Congressional claim, but for Moalin it would be moot in any case bc he was tipped before it was reauthorized).

    Assuming Moalin appeals (to increasingly skittish 9th), there will be that opportunity.

    At least Miller did not argue — as others have (for example, the govt in Adel Daoud’s case, where I suspect they got him via back door searches) — that Moalin does not have standing to challenge this.

  13. bloodypitchfork says:

    quote:”Me? I’d go with the Leahy-style “kill it with fire” approach.”unquote

    Kill it with fire. right. I’m not talking about what you would do IF you were a legislator. I’m asking you what you will do when these “debates” fade away under the heel of a jackboot. And they will. After all..Feinstein & Co. are doing everything in their power to make it so.

    quote”But it’s still important, all the same, to be careful about other people are saying and not saying. You can’t even begin to have a debate if all you do is talk past each other. “unquote

    There’s that debate word again. Pull out your debate tools when the Stazi comes kicking down your door to look for real weapons and see how well they work for ya. I give it 6 months max before Feinstein introduces a Sedition act. And if I’m right..see how far a debate get’s you then. Personally..I’d go with the Founders-style “dissolve it with gunfire” approach ..metaphorically speaking.

    ps..the collectivist scumbags in power don’t give a flying fuck about debate. The ONLY thing they care about is taking your weapons. They’re already trying. Of course, you might try to debate it with them. Unfortunately..by then they’ll simply blow your debate away with an AR-15.

  14. bloodypitchfork says:


    On a side note, nice reply to JPMorgan tweet.
    Why aren’t you in jail for sending a literal ton of gold bullion to Iran in violation of sanctions? #AskJPM — emptywheel (@emptywheel) November 13, 2013 unquote

    It got picked up by Salon

    I had to laugh. But yeah..why isn’t he.

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