The March–and April or May–2004 Changes to the Illegal Wiretap Program

Apologies in advance. I’m going to be in the weeds reading the May 6, 2004 Goldsmith opinion for a little bit.

In this post, I want to point to some details of timing that, I think, suggest that the changes DOJ made to Cheney’s illegal wiretap program in 2004 included, first, a limitation on collection to people with actual alleged terrorist ties (but not just with al Qaeda), and second, a shift of the data-mining part of the program under other parts of the PATRIOT Act.

What follows is largely a wildarsed guess.

The Half-Redacted Timing of the Post-Hospital Changes

As I noted in my working thread, DOJ has redacted part of the date of the 2004 modifications in the table of contents and pages 9 and 11. But on page 16, it has left unredacted a reference to a March 19, 2004 redaction. The opinion itself gives partial explanation for this: Goldsmith refers to “those” modifications, plural, on page 9, and describes a “series of changes” on page 11. The existence of more than one modification is confirmed by the IG Report, which says,

Notwithstanding Gonzales’s letter, on March 17, 2004 the President decided to modify certain PSP intelligence-gathering activities and to discontinue certain Other Intelligence Activities that DOJ believed were legally unsupported. The President’s directive was expressed in two modifications to the March 11, 2004 Presidential Authorization.

Though note the slight discrepancy between Goldsmith’s reference to a “series” (which to me means more than two) versus the IG reference to two modifications.

Now, the redactions and common sense suggest when at least one of the other changes must have taken place. Since Goldsmith wrote the memo on May 6, the redacted phrase can only be “April” or “May.” Given the spacing in the redactions–particularly the one in the second line of the only complete paragraph on page 11, which takes up the same space as the 9 characters “concernin” in the line below–it is unclear which it would be. It might read “and April ” or it might read “and May, “. It is worth noting that if the March 11 authorization were a 45-day one, it would have expired on April 25 and left, without this May 6 opinion, the program working without any basis still. Yet SSCI has told us the March 11 authorization was for “not more than 60 days,” which would have extended to May 5. For these and other reasons, my guess is May (suggesting that Goldsmith waited until the last changes were made to write his memo), but that’s just a guess. And DOJ, obviously, isn’t telling.

[Update: Thanks to William Ockham, who did the kerning work, it looks like “May” is correct.]

The March 19 Modification Limits Content Collection to Terrorist Conversations

On page 16, Goldsmith writes,

In the March 19, 2004 Modification, the President also clarified the scope of the authorization [~ 6-7 word redaction] He made clear that the Authorization applied where there were reasonable grounds to believe that a communicant was an agent of an international terrorist group

Further down that page, Goldsmith begins the list of the only three things this opinion authorizes. The first is:

the authority to intercept the content of international communications “for which, based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are reasonable grounds to believe … [that] a party to such communication is a group engaged in international terrorism, or activities in preparation therefor, or any agent of such a group,” as long as that group is al Qaeda, an affiliate of al Qaeda or another international terrorist group that the President has determined both (a) is in armed conflict with the United States and (b) poses a threat of hostile actions within the United States;

Goldsmith’s language here is remarkably similar to that he used in some of the letters he wrote at precisely the same time limiting the torture program. In both cases, he is trying to impose limits on a program that has already exceeded those limits. That, plus the reference to Bush’s “clarifi[cation]” of the scope of the program suggests the limit on intercepting the content of conversations in which one party is a terrorist is new.

I’ll have much more to say about this. But note that Goldsmith’s limit here does not match the terms of the Afghan AUMF, which is limited to those who were directly tied to 9/11.

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. [my emphasis]

In other words, while the requirement that the program collect content only from those with a tie to a terrorist may be a new limit imposed in 2004, it also seems to exceed the very AUMF that Goldsmith was newly relying upon to authorize the program.

Goldsmith does have one out for that problem. As he notes elsewhere, the Afghan AUMF language on terrorism is repeated (and actually expanded) in the Iraq AUMF.

Whereas Congress has taken steps to pursue vigorously the war on terrorism through the provision of authorities and funding requested by the President to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Whereas the President and Congress are determined to continue to take all appropriate actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;

Did you know that the Iraq AUMF mentions “terrorist” or “terrorism” two more times–19–than it mentions “weapon”–17?

So writing in 2004, I guess, Goldsmith could claim that a still-active AUMF authorized war against terrorism more generally. Now, we apparently just avoid written AUMFs altogether.

And with it, he authorized the interception of content of not just al Qaeda affiliates conversations, but of any terrorist who was at war with the United States. I wonder if Hamas and FARC are included in that?

The April or May Change(s)

But that’s just the change DOJ is willing (sort of) to let us know about. What about the other changes?

While I can’t say for sure, consider the following data points.

First, note that Robert Mueller’s chronology of the warrantless wiretap confrontation had what used to seem like a bizarre end date. He shows multiple contacts a day with Jim Comey until March 17. Shortly thereafter on March 19, it appears, Bush at least narrowed the content collection to actual alleged terrorist conversations. But then there’s a March 23 meeting between Mueller and Dick Cheney, at the Vice President’s request and in his office.

Next, remember there’s a great deal of evidence–including reporting during the Protect America Act debate–to suggest that data mining was one of, if not the key, problem behind the hospital confrontation.

A 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program.It is not known precisely why searching the databases, or data mining, raised such a furious legal debate. But such databases contain records of the phone calls and e-mail messages of millions of Americans, and their examination by the government would raise privacy issues.

Then, note that the day after Mueller’s meeting with Cheney, FBI moved toward actually using Section 215 of PATRIOT, which they had not done previously.

Finally, consider some of the changes made to the way Section 215 and NSLs were used that year–effectively using them to collect call data–and Section 215 specifically to support a secret program in 2005.

So Lichtblau suggests that the big change–the one DOJ won’t let us know about–has to do with searches of massive databases of records of phone calls and email messages of millions of Americans. And on they day after a private Mueller meeting with Cheney but probably before the second (at least) big change from spring 2004, FBI starts using the provision they would go on to use, some time in 2004, to collect call data. (And sometime in 2005 Section 215 came to be used to support a secret program unto itself.)

In any case, this is a wildarsed guess. But it appears likely that DOJ stopped acquiring metadata on calls to use in data mining in one fashion, and instead started using Section 215 and trap and trace requests to get the data.

Given the Bybee memo we’ve recently discovered which seems to support fairly expansive use of databases, however, I’m guessing they didn’t stop doing data mining of the call data.

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.

  1. scribe says:

    Wonder what Cheney used to “convince” Mueller to see things his way. An invite to go on a hunting trip?

    • BoxTurtle says:

      Probably the standard threat of blaming every subsequent terrorist act on Mueller for not giving the executive all the tools it needed. That’s how he got almost everybody convinced.

      Boxturtle (It helps when almost everybody is spineless and fearful)

      • scribe says:

        Amazing, isn’t it, the results of locking otherwise-intelligent people inside a bubble with their fears.

      • Mary says:

        And there is the fact that Mueller had been up to his neck in at least knowing about the torture and illegal surveillance (didn’t FBI find the program asap?)

        It was an election year and if everyone didn’t jump in with both feet and empower the Presidency and cover each others butts aggressively, 2005 could have been bringing some very unpleasant issues for all of them to deal with. If investigations re: torture and surveillance had begun in 2005, while the nation was still reeling from Abu Ghraib, and if there had been more information released, the national and media response would have been very different than what we have had under this long, drawn out, rolling disclosure based, media bought off with access and book deals, DOJ decayed from within, and “liberals” like Obama, Koh and Lederman brought in to sanction torture as a “good faith” activity, process.

    • Mary says:

      You dont’ think there was another coveniently unclaimed Halliburton account from a Nigerian scam in a Swiss account back then? /s

    • Mary says:

      Some good news at least.

      Though note the slight discrepancy between Goldsmith’s reference to a “series” (which to me means more than two) versus the IG reference to two modifications.

      Maybe that goes to the first “modificiation” mentioned by the IG as including multiple “activities?”

      “modify certain PSP intelligence-gathering activities and to discontinue certain Other Intelligence Activities ” Even it there were two ultimate orders of modification, Goldsmith might view each the changes to each of the PSP “activities” as amounting to a series of changes.

      So you’re thinking that the March 19 modification had an impact on, for example, collections of those alleged to have provided “material support” like some of the Islamic charities, and US persons?

      I do still wonder about a voiceprint analysis/speech recognition component in the program being used to select out conversations for content review. A lot of “material support” types might be easier to get voiceprint info on than footsoldier al-Qaeda combatants. And if you start run to match for voices, going through all foreign calls to the US, and use that to grab content, you are going to get a lot of stuff you had no probable cause to collect.

      And, most importantly to me, the basis for your search – voice print – is a basis NSA might be enamored of, but courts simply do not accept (yet). Even a FISCt would never have issued a basket warrant allowing for interceptions tied to hits from an unproven technology and allowing for both sides of content to be looked at. The fact that this would be something a court just wouldn’t do is one thing that makes me think it was a part of Teh Program. So they wouldn’t have been able to get an order, including a FISA order, to allow for that kind of sifting. And they could kindasorta claim it was bc the legislation and the courts were falling behind their national security tech.

      But that’s just non-techie speculation on one element only of the FISA Felonies programs and doesn’t mean I don’t think they were engaged in lots of data mining as well – taking the Poindexter program underground. I just like tying up loose ends and for me it fleshes out why they kept trying to isolate the “I hear al-Qaeda voices calling” program and say that with respect to the program the President admitted, they weren’t data mining.

      Honestly, though, I am equally ready to ditch that spec for the spec that Hayden just outright fibbed as well.

      I do think it’s worth keeping in mind the overall appeal in the FISCt that was going on at the time vis a vis Presidential powers and Patriot Act changes (with the subsequent Silberman opinion) and also the other FISCt issue that seemed to coincide with all this – the fact that DOJ was having to go to first Lamberth (wonder how he feels about Townsend being in the mix to run FBI – or if anyone will ask her if she can sign off on applications before the FISCt again) and later to Kollar-Kotelly and tell them that their firewall orders were being disregarded by NSA and FBI.

      Those orders didn’t try to shut down the program(s), since it was not “before the court” in any formal setting, but they did provide that if there was a FISCt application for a FISA warrant on someone, if that “someone” had also been collected up in the illegal, warrantless program prior to that FISA warrant, the FISA warrant application had to go to the chief judge (first Lamberth, then Kollar-Kotelly) with an explanation that the person had been subjected to the illegal program prior to the warrant request, so the court could exclude information as needed in making its warrant determination.

      The fact that they were apparently sending in applications on people who had been collected in the massive fisafelony program to non-clued in judges and without disclosing that information was what was giving the FISA judges heartburn – that the FISA court warrants were being used to launder illegal Exec activity. Remember one FISA judge quit – and I’m betting it’s because one of the fruits of illegal programs applications hit his desk and he granted a warrant without ever having been told about the prior warrantless surveillance.

      I have to think that some of the modifications went to how they were going to handle that aspect, since the FISA Chief Judge was breathing fire down on them at the same time.

  2. Mary says:

    (just to yammer on – I’m not saying you can’t get voice identification into evidence in a court, but that a court would never issues a warrant to go voice searching)

  3. BoxTurtle says:

    Was it due to intelligence or due to money they got the jobs and stayed out of jail?

    Boxturtle (I’m betting on money, and low animal cunning)

  4. WilliamOckham says:

    For these and other reasons, my guess is May (suggesting that Goldsmith waited until the last changes were made to write his memo), but that’s just a guess. And DOJ, obviously, isn’t telling.

    It’s definitely May. [I love a little kerning fun…]

    The memo uses 12 pt. Times New Roman (which was evidently a standard at the OLC). Set the appropriate margins in MS Word and you can see that putting in “May” in both redactions (bottom of pg. 9 and on pg. 11) makes the letters line up perfectly. Substitute “April” and it is not even close.

    What exactly was the point of redacting the month, anyway?

    • emptywheel says:

      With or without a comma?

      As to the point of the redactions, two reasons.

      Remember that al-Haramain is still not finalized. So if they can point to what was going on when, then they have a better case to build on their arguments about illegal wiretap (though I think they have that anyway). I also wonder whether details like the ones above from the Section 215 disclosures elsewhere would make it obvious.

  5. harpie says:

    Scott Horton has a post up about these memos:

    The President’s Right of Warrantless Surveillance: Two New OLC Opinions; Scott Horton; 3/21/11

    […] Both memos are heavily redacted, and it seems clear that the redactions reach heavily into legal reasoning rather than technical or scientific aspects of the surveillance program. The redactions may be designed to protect the Justice Department from embarrassment, by concealing legal arguments that are far below minimum professional standards. Goldsmith himself reinforces this impression. “They blew through [FISA] in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations,” he writes, suggesting that the secrecy assertions were directly connected to the poverty of the legal arguments. Three federal courts have in fact reached the fairly obvious conclusion that the NSA program, as carried out, is criminal.

  6. Mary says:

    May has been classified.

    Even though the month of May has been disclosed in public sourcing, please be advised that this does NOT mean it has been declassified.

  7. MadDog says:

    An Irish tip of the hat to EW for this most excellent weedy post!

    And pardon me for going tangentially OT, but back to the missing OLC opinion of:

    …Memorandum for the Deputy Attorney General from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Effect of the Patriot Act on Disclosure to the President and Other Federal Officials of Grand Jury and Title III Information Relating to National Security and Foreign Affairs 1 (July 22, 2002)…

    I can’t help but again comment on the extraordinarily telling title of that opinion. To me, it seems to have a significance all it’s own.

    Though I somewhat jokingly referred to Cheney in the original post, I find that I keep coming back to the sense that indeed, Cheney & Co. were the “other Federal officials” being described.

    The opinion’s title just seems far too specific in stating “Disclosure to the President and Other Federal Officials”.

    So the question arises as to why would “Disclosure to the President and Other Federal Officials” be important. Important enough to have a specific classified OLC opinion written for it.

    I tend to dismiss the “Disclosure to the President” part as the typical disingenuous attempt to provide cover for Cheney & Co. This is just his typical modus operandi.

    So why would Cheney & Co. need this electronic surveillance material? Is it because Cheney & Co. were running their own off-the-books (and off-the-wall) intel ops?

    Was it because Cheney & Co. wanted free access to those illegal massive electronic databases?

    What were they doing? And why?

    Apparently, only the Shadow knows. *g*