Sunsets Give Way to Dawn on Section 215

In my last post, I showed how Section 215 authority grew over time, potentially in response to legal challenges to other domestic surveillance programs. I’m going to look at what that might mean for the expanded use of 215 authority in 2006 in a later post.

But first, I want to look at one passage in the 2007 IG Report on Section 215 that is relevant to current efforts to reauthorize PATRIOT. The report explains how–faced with a looming reauthorization fight–DOJ scrambled to actually make use of the Section 215 authority.

By early 2005, the Department faced the "sunset provision" of Section 215, pursuant to which the authority would lapse or "sunset" unless Congress affirmatively renewed the provision. In April 2005, FBI officials testified before Congress about the FBI’s use of the authorities provided by the Patriot Act. This generated a renewed emphasis within the FBI’s Office of  General Counsel on the use of the Section 215 provision.

By this point, the FBI was just using tens of Section 215 orders a year. In 2005 that expanded (partly through the use of combo orders designed to get subscriber information for trap and trace orders), and in 2006 it blossomed into at least one entirely new, secret program. 

Meanwhile, remember what else happened. The Senate Judiciary, after a hearing including testimony from Robert Mueller in April 2005, unanimously supported new limits on Section 215, which would have required some specific tie to terrorism or a foreign power before an order could be used to obtain records pertaining to a person. The House, on the other hand, supported small changes which nevertheless still allowed use of Section 215 to access records of people with no tie to terrorism. That fall, the conference process was gamed to make sure the House bill would prevail. 

In other words, at the same time someone was pushing Congress to keep the more permissive standard for Section 215, FBI was scrambling to actually use the authority–perhaps at least partly to justify its continued existence!

And somehow, out of that process, Section 215 came to be used to legally authorize entirely new programs in 2006, after the reauthorization process. 

30 replies
  1. BoxTurtle says:

    So there are parts of the government that are actively using 215, but they don’t want to be exposed as doing so. Or perhaps even exposed as existing. And they get the FBI/DOJ to claim openly that 215 is vital, even though they’re hardly using it. And to back this up, the DOJ starts finding uses for 215.

    I want to sit Holder down and ask him nicely what he has against warrants and judges.

    Boxturtle (And I want to be holding a baseball bat when I ask)

    • emptywheel says:

      It’s probably more complex than that. They may have just realized they wanted to keep everything they had, and pushed to fix DOJ’s own bureaucratic problems with it. But then in the process someone said, “hey, let’s use this thing for XXX purpose. THat’ll work!”

    • BoxTurtle says:

      Failure to cooperate could be considered suicide.

      Boxturtle (at least they had the decency not to say “natural causes”)

    • skdadl says:

      A “long-committed hunger striker” … held in a psychiatric ward … presumably force-fed several times daily over a period of years … commits suicide …

      There is so much wrong with that history it is hard to know where to start. (Not a criticism of McClatchy, just revulsion at the stupidities piled upon one another that began back in 2002.)

    • earlofhuntingdon says:

      What happened to the perennially useful, “He died while trying to escape”?

      Is not assisted suicide – or, here, inducement to suicide – a crime in most jurisdictions. Oops, I forgot that Gitmo has no jurisdiction, it’s in a twilight zone. As with torture, those who die under such circumstances should be considered murder victims and their tormentors punished accordingly.

      That would not be true had this prisoner been lawfully detained; indicted; tried in open court by a regularly constituted tribunal, using admissible evidence about which the defendant is informed and given an opportunity to refute, with assistance of competent counsel; been found guilty; given an opportunity to appeal to a regularly constituted appeals court; and imprisoned for a fixed term of years. Any of that happen here? I thought not.

      • DWBartoo says:

        That those who torture, speak of standing “against” the evils of terrorism and claim to be defending the “security” of the innocent is appalling; that they are “believed” suggests a failed “society” which has neither fundamental principles nor any genuine interest in gaining any.

        Those who torture other human beings rather enjoy twisting language as well, simply for the little thrills …

        As the sun sets on empire, the nation shall at least have the satisfaction of knowing that the world is definitely warming toward us …

        When America and the world need genuine competence, we have, instead, got “pragmatists” whose behavior seems strangely like appeasement of the worst kind … and their hangers-on.

  2. earlofhuntingdon says:

    Build it and they will come; legislate or executive order it and they will use it.

    I think you illustrate a good point. No bureaucracy lets a power lapse or a budget go unspent. It would be like a dog failing to bark in the nighttime. As Sherlock Holmes observed, it does so only when it knows the thief.

  3. earlofhuntingdon says:

    I should also mention that even where the due process I referred to @11 exists, mistreatment of prisoners remains an offense.

  4. Loo Hoo. says:

    No filibuster?

    The Democrats are winning on health care. With centrists and progressives divided over whether to get behind a piece of legislation that includes a public option, it’s noteworthy that the 60 Democrats are now on the same page when it comes to breaking a Republican filibuster.

  5. Petrocelli says:

    Yep, we have the momentum but must continue action in order to prohibit a last minute loss of spine, which the Dems are quite prone to.

  6. pdaly says:

    The realization that Section 215 can do an end run around FISA requirements makes me wonder all the more why (in the Dina Temple-Raston NPR article emptywheel linked to the other day) former FBI Asst Director Tom Fuentes had to hem and haw about how ‘terrorism’ qualifies for FISA wiretaps:

    FISA wiretaps used to be all about espionage, but, according to former FBI Assistant Director Tom Fuentes, that changed to include terrorism. The foreign entity in this case would be a group like al-Qaida. “In certain cases, obviously, an act of terrorism against the United States affects national security, and so under certain circumstances terrorism also qualifies,” he said.

    “In certain cases,” and “under certain circumstances.” In other words, terrorism on US soil normally doesn’t qualify for FISA; rather terrorism on US soil is the province of regular police work? Fuentes’ qualifiers bother me. Maybe the current situation bothers him?

  7. LabDancer says:

    All you no-doubt good-hearted folks steering this thread off topic should maybe think about getting a room somewhere.

    As I understand, this is the second in a series, really a sub-series within a series on a topic, 215s, by which sub-series fearless leader is trying to work out something that’s by policy anathema to the Obama administration:

    to look back to see how we got to this state of affairs, whereby the Senate Judiciary Committee appears to be in the process of extending authorization under the pretext of ‘renewal’ of a national security “tool” which, as things in ms emptywheel’s narrative appear so far, was never entirely a creature expressing Congressional intent in the first place — & instead was at least partly [as her analysis proceeds, increasingly it appears largely, if not entirely–the last being where my money is], the objective of desire of the Bush administration.

    All of which keeps throwing up this image in my head of the one then-elected official with at least a foot in the door to, or at least one lip to the ear of, each branch & house, & notably least intrusively to that of the Senate, moreover the one body most prone to doing in the least in the face of the greatest sorts of challenges, only amenable to control in this narrative, it appears, through the process of reconciliation [the controls over which, in turn, were, at the material time, in Republican hands].

    Indeed, ‘renewal’ of this “tool” would appear to be, among all that now-formerly-elected official’s ‘achievements’, near to the top of the heap.

    So maybe the wrong impression is rubbing off on me here, but I’m seeing this ‘renewal’ process as the most insidious type of fast-creeping Cheneyism, under which the agents advancing its institutionalization into permanency are supposed Beltway liberal progressive Democrats.

    • emptywheel says:

      Well, the thing is, we don’t know. I presume DiFI and Whitehouse and Feingold know. DiFi and Whitehouse seem to be satisfied that even if this now forms one aspect of the formerly illegal program now made legal, it is okay. Feingold is not happy about that (but then he seems to be one of the few people bugged about all the data mining going on–hahaha!! no pun intended!

      That said, we wouldn’t necessarily know if they were trying to EXPAND the use of 215 (Again), we’d only know that Whitehouse and DiFi are happy with how they understand it has been used in recent history.

      • LabDancer says:

        It appears you’re using the concept of happiness in some expanded sense.

        One of your observations I found particularly acute was on the exchange that showed all 3 of DiFi, Whitehouse & Feingold essentially admitting the ‘benefit’ of being briefed into the supposed Zazi weeds

        [albeit I’ve remarked earlier on the effects of their respective mindsets going into such briefings their respective resources, & my suspicions as to the distinctions on the first reverberating as well in the shall-we-say ‘quality’ of the briefings each would have received.]

        I might not have made this clear in my several riffs on scherehazade’s mary’s 1,001 arabian nights theme, but as a former fed myself, I felt myself being torn between the outrages of where this 215 power has been taken to on the one hand, & the possibility that the mind of young Mister Zazi, to the extent it might be any sort of “mastermind” at all, may only have been made so by his betters, intending that his meanderings serve as either a distraction or one of a number of missionaries only one of whom needs to succeed.

        [I’d find far less compelling the idea that his mission would have been aimed simply to elevate the national anxiety level–even terrorists may be granted higher motives than those plainly attributable to the absolute scum of the earth, the members of the vast rightwing conspiracy; the sole exception being this being an entire international put-up job between nat-sec allies, but even that I discount as greatly unlikely.]

        So, one view on what’s publicly known from the Zazi investigation [again, undoubtedly incomplete, and to some extent misleading], is that the emergence, or even just the possibility, of Zazi as a faux-mule, or one among a team of twenty say, would send the hearts of law enforcement agents bouncing off their shoes from realizing the general scope of the [possible, supposed] plot, yet having little to no clue of who else to look to or where in hoovering up the other players & pieces.

        This is not some imaginary scenario to me, nor would it be seen so by anyone with any serious extent of service in law enforcement or prosecution. As I indicated in an earlier rant, it was de rigeur practice among narcotics importers for a number of years, starting during the last years of the VietNam war, remained a quite common practice at least until crack was replaced by various meth products on the menu of destruction, &, to adopt the lingo of the yutes of today, remains an available option in the toolbox of all manner of organized crime.

        Added to that is the factor of the vagaries of timing [which of course is prone to being used as an excuse], under which the thinking would go that: the higher up a given senator is in a given committee, the closer she or is in contact with the White House & its agenda. And elevated standing isn’t even necessary if a given senator has other bases for his at least partial allegiance to the WH. Conversely, the more a senator has determined his highest value to be in maximally expressing his concerns, doubts & conscience, the more likely he would be seen to take on the devil’s cause.

        If any of those positions suggest glee, I would regard it as greatly moderated.

    • bobschacht says:

      Thanks for trying to get us back on topic.

      I wonder if the 215 procedure proved to be such a good hammer that some people were motivated to find new kinds of “nails” to pound with it?

      The data from these scoops must be great stuff for people with a background in network theory.

      Why does the old movie, Minority Report, keep flashing before my eyes?

      Bob in AZ

      • LabDancer says:

        The thing of it is, not to beat to death the idea of resorting to the take of James Bamford on all matters pertaining to data mining, the idea of hoovering up all our emails & voice communications with the view to combing thru the massive mess of human intercourse to detect meaningful patterns of any practical use to national security, makes Reagan’s Star Wars’ fantasies look reasonable; whereas pulling up sales receipts from the nation’s beauty salons to discern odd purchasing patterns is a relatively rational & potentially useful course of action.

  8. Hmmm says:

    This keep-alive behavior sounds to me like they were expecting some new technical capacity to come online soon, and once it arrived they’d really be needing 215s as some component working together with that shiny new thing.

    One possibility I suppose might be some sort of sleight-of-causality scheme that would let them manufacture false after the fact probable-cause predicates for LE warrants, investigations, and arrests — when really NS datamining was the original source of suspicion — with data mining playing a part, perhaps on both the NS and the LE sides.

    Try this on for size:

    1. NS data mining, routine and automatic, finds a suspicious US person.
    2. NS investigates and doesn’t like what they see, but have no evidence they can use in a US court because it’s forbidden fruit.
    3. On the QT, NS tells LE to develop probable cause on this guy and arrest.
    4. LE or NS data mining — perhaps including 215 methods and/or some fruits thereof — hunts for Seven Cheap Degrees of Kevin Bacon linking that person to any legally permissible class of person (existing investigation suspect, agent of a foreign power, etc.). Now, note that this search could, perhaps, be misrepresented to a Court in step 5 as the fruit of some previously authorized LE-side datamining operation, rather than the manual find based on the NS lead that it really is. In other words, the reported connection may be anywhere on a spectrum from tenuous-but-true to solid-but-faked — doesn’t really matter, since it can’t be challenged by the defendant; any link will do, however big a stretch.
    5. LE takes the link to Court as evidence, claims probable cause, gets warrant(s).
    6. LE collects actually admissible crim case evidence via any available means.
    7. LE Arrest!

    So… what bugs me is this: If they were able to do this kind of end-run around the minimization laws — any was there any reason why they couldn’t have done? — then why the various pushes toward broadening the language in 215 and other statutes that defines who a permissible connection is? They already had all they needed. Another clue that something somewhere is likely to have changed… but what?

    Again I have a nagging feeling about crossing the NS vs. LE beams here. Feels like some very very bad slope has been slipped.

    • Hmmm says:

      I guess a key thing is in step 4, where the data mining starts at the new guy and seeks connections to known suspects, when in reality the only proper searches would be ones that start at the known suspects and work outwards. If the technical and legal machinery gives them a way to conceal the direction of that search, then they can ensnare absolutely anybody.

      Not that there aren’t a million ways to create false connections from known suspects to any given guy — but there again you have to wonder with all these many ways available to them, why even worry about the statute language?

      Audits instituted?

  9. MadDog says:

    Really excellent dot connecting EW!

    And since you mention this:

    …This generated a renewed emphasis within the FBI’s Office of General Counsel on the use of the Section 215 provision…

    I found it worthwhile to check out who was/is the FBI General Counsel. Holding the position since 2003 is Valerie E. Caproni.

    Her testimony during the HJC April 15, 2008 hearing on National Security Letters Reform Act of 2007 may be of interest (page 19 of 155 page PDF) as just one example:

    …Before I end, I would like to address briefly exigent letters, which
    was, in my view, the single most troubling discovery by the Inspector

    As your staffers have been briefed, we are in the process of cleaning
    up the exigent letter problem, including unraveling the socalled
    ‘‘blanket NSLs’’ that were mentioned in the I.G.’s recent report.
    We are looking at every telephone number that appears on a
    so-called blanket NSL or on an exigent letter that we are aware of.
    In some instances we have found that appropriate process has previously
    been issued.

    In other instances we have found that, although a number appears
    on an exigent letter or one of the blanket NSLs, we have no
    records at all regarding that telephone number. If we have records
    and no evidence that appropriate legal process has previously been
    issued for the records, we are evaluating whether the number is
    relevant to any investigation currently open.

    If so, a corrective National Security Letter or grand jury subpoena
    will be issued. But the phone company will be directed to
    give us no further records, since we already have the record.
    If there is no open investigation because of the passage of time
    between getting the records and now—and you will recall that the
    exigent letter problem has been going on for some period of time—
    at that point, we will evaluate whether, at the time we received the
    records, there was a true emergency that would have justified disclosure
    of those records without legal process under 18 U.S.C. 2702.
    If so, the emergency that existed at that time is documented, and
    the records are retained.

    One example of such a situation would be the emergency that existed,
    and the phone records that we retained, in the immediate
    wake of the disrupted plot to blow up jetliners as they flew over
    the Atlantic Ocean.

    If there is no currently open investigation, and there was no
    emergency at the time we received the records, the records are removed
    from our files and destroyed. This has been a laborious,
    time-consuming process.

    And I can assure this Committee that our efforts have been designed
    to ensure that the FBI does not retain any record that it
    should not have, while maintaining those records that could be a
    dot that needs to be connected, in order to keep the country safe…

    • MadDog says:

      And another very interesting aspect to this topic from a since defunct site called NewStandard back on Dec. 14, 2005, had this:

      Memo Presents New Evidence of FBI Impropriety

      Amid the Federal Bureau of Investigation documents recently released under public information requests is a memo mentioning changes in Justice Department policy that permit the FBI to ignore the office specifically tasked with providing oversight and advice to Department agencies. The memo mentions the changes only in passing and does not discuss when they were implemented or at whose direction.

      Exposed yesterday by the Electronic Privacy Rights Information Center, a nonprofit privacy rights advocate, the internal FBI Office of General Counsel memo discusses Bureau policies and activities related to “roving wiretaps” and other Foreign Intelligence Surveillance Act (FISA) tools expanded under the USA Patriot Act. It also notes that the Patriot Act’s easing of restrictions on surveillance “has benefited the FBI’s mission in general… as it has made considering and/or obtaining FISAs more possible under appropriate circumstances.”

      Heavily redacted, stamped “Secret” and under the heading “New Standard for Business Records for FISA,” the last line of the General Counsel memo reads: “…notes the process would appear to be greatly improved based on recent changes allowing FBIHQ/OGC [FBI Head Quarters/Office of General Counsel] to bypass OIPR [Office of Intelligence Policy and Review], but the benefits have not been fully realized yet.”

      That FBI General Counsel memo is here (3 page PDF) and well worth the read.

    • MadDog says:

      And btw, as a former techie now early retired, I found this part of Valerie E. Caproni, FBI General Counsel’s testimony pitiful (page 22 of 155 page PDF):

      …Several years ago, the FBI’s process for tracking NSLs for Congressional reporting purposes shifted from a totally manual process, where the NSL data were written on 3 x 5 cards, to a standalone Access database. This database is reference in the first IG report as the OGC database. While the OGC database was a giant technological step forward from 3 x 5 cards, it was not an adequate system given the increase in NSL usage since 9/11…

      (My Bold)

      Using Microsoft Access is just laughable to us techies. State of the Art Stone Age!!!

      This is like saying that during the age of SUVs, these folks decided that riding a donkey was much better than walking.

    • MadDog says:

      Btw EW, I must say that reading the entire transcript of the HJC April 15, 2008 hearing on National Security Letters Reform Act of 2007 (155 page PDF) has been most interesting, informative and helpful to understanding the genesis of both NSLs and Section 15 Orders.

      That is particularly true with regard to the written testimonial submission of Michael J. Woods, former Chief of the FBI’s National Security Law Unit. His written statement begins on page 53 of that PDF.

      For example, on page 57 of that PDF, Wood’s describes the genesis of Section 15 Orders this way:

      …After the 9/11 attacks, I became responsible for preparing the FBI’s proposals in the legislative process that would ultimately generate the USA PATRIOT Act. In reference to NSLs, the FBI requested three changes…

      …Third, the FBI proposed a general administrative subpoena authority that would allow the FBI to obtain business records that did not fall within the specific categories covered by NSLs…

      …The administrative subpoena idea was apparently integrated into the language that became the new Section 215 “Business Records” language in FISA…

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