Tom Coburn Suggests Problems with Use of PATRIOT Act Section 215 Will Be Big Court Battle

I’m watching the SJC’s 51 minutes of almost entirely pathetic questioning of Robert Mueller to remain Director of FBI for two more years (the only real challenge came from Al Franken on civil liberties issues). And while by far the most telling aspect of the questioning came in Mueller’s repeated assertion that aspirational internet terrorists are the biggest threat we face, Tom Coburn asked a truly fascinating question.

He asked Mueller if he believed his two year extension was constitutional. He then used that as a platform to ask (my transcription),

Could you envision colorable challenge to use of 215 authority during your 2 year extension of power?

While I have no problem with you staying on for two more years, I do have concerns we could get mired in court battles [over 215] that would make you ineffective in your job.

In other words, he suggested that the Section 215 issues that Ron Wyden and Mark Udall have raised may quickly turn into a significant, and drawn-out, constitutional litigation.

Remember, Coburn was on the Senate Intelligence Committee last term. While he’s no longer on the Committee (and therefore was not in the briefing on February 2, 2011 that got Wyden and Udall in such a tizzy), he would have been briefed on the FBI’s use of Section 215 to develop databases of Americans who buy hydrogen peroxide and , presumably, geolocation.

FWIW, Mueller didn’t really answer the question (at least not that I noticed), though in response to Al Franken he claimed the FBI has not abused any of the PATRIOT authorities.

Well, it sounds like Coburn, at least, believes a Court (and presumably, ultimately SCOTUS) may soon have an opportunity to determine whether or not he’s right.

Update: I recall now that among the things that Wyden has asked for at times–in addition to the OLC opinions backing this use of Section 215–are FISC opinions, presumably on Section 215 applications. That suggests this may already be wending its way towards SCOTUS, only via the secret FISA courts.

Update: I may have totally misunderstood. Alternately, there may be this much sensitivity on 215 that Coburn is worried. John Gerstein includes this in an article on Coburn’s concerns about the constitutionality of a Mueller extension generally.

“I have concerns that we’re going to get mired in court battles over this that actually make you ineffective in carrying out your job,” Coburn told Mueller earlier in the committee hearing. The Oklahoma republican noted that Mueller or one of his deputies is required to sign certain types of surveillance and search orders and that such approvals could be challenged if Mueller’s appointment was in question.

But why would Coburn be primarily worried about Mueller’s 215 applications–and not FISA applications more generally?

Update: Ok, I’ve watched the piece again. Coburn was asking about potential constitutionality of Mueller’s extension raising legal issues for Section 215 orders, which have to certified by Mueller or one of two of his subordinates. That may have been just a hypothetical. But it still strikes me as an odd hypothetical.


  1. bobschacht says:

    Thanks for this catch. Please continue to follow this story for us.

    That suggests this may already be wending its way towards SCOTUS, only via the secret FISA courts.

    Golly gee whiskers. Does this mean the SCOTUS case would also be a secret trial?

    Bob in AZ

  2. MadDog says:

    …That suggests this may already be wending its way towards SCOTUS, only via the secret FISA courts.

    Hmmm…for that to happen, correct me if I’m wrong, the FISA court would have had to rule against the DOJ/FBI. And further, such a ruling would have to be then appealed by the DOJ/FBI to the FISCR.

    The trouble I have envisioning this happening is the plaintive way Wyden and Udall wrung their hands during the vote on the expiring Patriot Act provisions.

    It was as if Wyden and Udall were saying that nobody, including the FISA court and FISCR, was listening to them.

    And yet, as you say EW, Coburn must have had some rationale for believing that 215 court battles were possibly/probably on the horizon.

    • MadDog says:

      I neglected to include the possibility that some stung corporate entity would be aggrieved enough by a 215 order to appeal.

      Do we really have such a mindful corporate citizen?

  3. emptywheel says:


    I disagree.

    We know FISC has been modifying 215 apps.

    We know there are opinions. You only get opinions if you get some kind of pushback. Now, I’m going to have to get that reference again to see whether he mentioned FISCR opinions, which would mean it would already have gone up a stage.

    We also know there have been opinions. FWIW, I increasingly suspect taht secret July 19, 2002 OLC opinion on info sharing was partly a response to FISC’s pushback on minimization. If I’m right, it means the govt has a history of responding to FISC pushback by just saying, “OLC will let us even if FISC won’t.”

    In any case, since Coburn raised this, it might be ongoing, something that he was briefed on before he left SSCI, but something that he suspects is ongoing. Which might suggest the February 2 briefing was about the govt’s new plan to get around FISC’s past objections.

    • MadDog says:

      Well then, I won’t necessarily disagree with you here. *g*

      You make a very good case that the DOJ/FBI could be stiffing even the FISA court (and possibly FISCR).

      But again, it’s just my sense of Wyden’s and Udall’s apparent hand-wringing that I find out of place if the FISA court or FISCR had really stood up to the DOJ/FBI.

    • Mary says:

      How are you envisioning that something gets to the Sup Ct via FISC rulings? Bc that’s one of the bigger issues with FISA, constiuttionally. It’s basically not an Article III court for all its trappings. It’s a glorified administrative court/Article I tribunal.

      No one gets a lifetime appointment, the proceedings aren’t adversarial, rights of victims are not represented before the “court” and on it goes. There are no procedures in place to get you to where an aggrieved party has notice of the “classified” or “secret” actions, no statutory or other standing to get them in front of the FISCt or FISAndroid Ap Ct, and no mechanism to get the ubersecret classified info to the Sup Ct by someone with standing.

      The only way it happens is if the DOJ itself somehow tried to fashion an appellate process to the Sup Ct from an adverse ruling against them and that would be a very intersting thing to … not watch. Bc I’m sure they do it all under seal. But I don’t see how the Sup Ct takes it as an appeal from the ruling – only as an appeal to the constitutionality of the tribunal itself and the powers conveyed to it and that would mean the DOJ putting before the Sup Ct, secretly & non-adversarially, without advocacy for the contra position the proposition that the FISCt can’t constrain them in the way it has, supposedly, but its ruling.

      But, if they believe that, then they have no need to file with the Sup Ct – they just do what Bush et als and Obama et als have done when they get even real, Article III judge orders that they don’t like – ignore them and go on, daring anyone to do anything.

      I can see the Road to Omaha in all this, just not so much the Route to the Supreme Court.

      • bmaz says:

        Right. Exactly. My previous comment now adopts and incorporates Mary’s material!!

        Wait, was the last sentence an oblique reference to the upcoming College World Series, where hopefully yet another set of Devils can get to and win??

    • bmaz says:

      If I’m right, it means the govt has a history of responding to FISC pushback by just saying, “OLC will let us even if FISC won’t.”

      Which might suggest the February 2 briefing was about the govt’s new plan to get around FISC’s past objections.

      Well this is the problem with secret law isn’t it? You never know what the law is, means, how it is being applied or how it is affecting you. Which kind of turns the concept of a neutral and detached public magistrate, and there is no evidence the crafters of the 4th contemplated a completely secret process never disclosed to the public (which is FAR different than temporary sealing for investigatory efficacy or safety), completely on its head. These are the types of Constitutional concerns I have always had about whether even FISA itself is Constitutional.

  4. emptywheel says:

    I’m rewatching this hearing, and it sounds like Coburn is mostly concerned about approvals Mueller certifies being challenged based on questions about the constitutionality of his extension.