Is Robert Mueller, a Purported Hero of the Hospital Confrontation, Responsible for Section 215 Use?

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.”

Now, at least some of the people commenting publicly on the confirmation that Section 215 has been used to compile a database recording details on all calls Americans make say Section 215 has supported that purpose only since 2006. Dianne Feinstein, for example, says the practice has gone on for 7 years.

As far as I know, this is the exact three month renewal of what has been the case for the past seven years. This renewal is carried out by the FISA Court under the business records section of the Patriot Act. Therefore, it is lawful.

Seven years would put its start almost exactly at the March 9, 2006 renewal of the PATRIOT Act, which added new language on Section 215 in the wake of the December 15, 2005 exposure of Bush’s illegal wiretap program. In discussions of this collection program since last week, it has generally been accepted that’s when it all started.

Curiously (particularly given his insistence that PRISM only started in 2008, slides to the contrary notwithstanding), James Clapper made no claims about precisely when this practice started.

The Patriot Act was signed into law in October 2001 and included authority to compel production of business records and other tangible things relevant to an authorized national security investigation with the approval of the FISC. This provision has subsequently been reauthorized over the course of two Administrations – in 2006 and in 2011. It has been an important investigative tool that has been used over the course of two Administrations, with the authorization and oversight of the FISC and the Congress.

It is possible that this program was conducted under a different PATRIOT provision (such as the Pen Register ones) prior to 2006; in fact, Clapper never mentions the term “Section 215” in his purported clarification of the program.

Now, consider one more detail. In a statement before the 2009 debate on PATRIOT Act reauthorization focusing closely on Section 215, Russ Feingold suggested that the debate over reauthorization in 2005, which led to purported initial use of Section 215 to conduct this dragnet, had been stymied by classification of how the PATRIOT had been implemented.

I remain concerned that critical information about the implementation of the Patriot Act has not been made public – information that I believe would have a significant impact on the debate. During the debate on the Protect America Act and the FISA Amendments Acts in 2007 and 2008, critical legal and factual information remained unknown to the public and to most members of Congress – information that was certainly relevant to the debate and might even have made a difference in votes. And during the last Patriot Act reauthorization debate in 2005, a great deal of implementation information remained classified.


But there also is information about the use of Section 215 orders that I believe Congress and the American people deserve to know. I do not underestimate the importance of protecting our national security secrets. But before we decide whether and in what form to extend these authorities, Congress and the American people deserve to know at least basic information about how they have been used. So I hope that the administration will consider seriously making public some additional basic information, particularly with respect to the use of Section 215 orders.

There can be no question that statutory changes to our surveillance laws are necessary. Since the Patriot Act was first passed in 2001, we have learned important lessons, and perhaps the most important of all is that Congress cannot grant the government overly broad authorities and just keep its fingers crossed that they won’t be misused, or interpreted by aggressive executive branch lawyers in as broad a way as possible. [my emphasis]

This suggests the plan to use Section 215 may have been explicit in those classified debates.

All that said, there is one more piece of evidence suggesting that Section 215 was not used for this purpose until 2006. DOJ’s Inspector General did two reports on the use of Section 215, one in 2007 and one in 2008. The first was supposed to include just 2004 and 2005, but IG Glenn Fine unilaterally decided to include 2005 in the earlier report. As a result, the 2008 report covered only the use of Section 215 in 2006, and as a result covered the changes implemented with the 2006 reauthorization of the PATRIOT Act in detail (as such, that report’s Chapter II is a superb primer on what the measure does).

In addition, however, the report also includes about 11 references (or redactions of clear references) to secret collections programs, as on page 3: “The two Classified Appendices describe other uses of Section 215 orders to collect [redacted].”  So in the first report, which covered the use of 215 prior to 2006, there was no discussion of the secret collection. In the second report, which covered the use of 215 in 2006 and afterwards, it did include the secret collection.

So it may be that the government used something else for the interim 2 years (again, my guess is they used FISA”s Pen Registers, with some related Section 215 collection, and switched to 215 exclusively in 2006 for some unknown reason).

But there’s one more thing that suggests Robert Mueller’s centrality to this program. During the hearing to extend Mueller’s 10 year term, Tom Coburn asked Mueller if “Could you envision colorable challenge to use of 215 authority during your 2 year extension of power?” It appears that Coburn (not exactly a libertarian) was not so much worried about the 215 program. Rather, he was worried that Mueller’s extension might put his own authority in question, and therefore his recertifications of the program in legal question.

All that has nothing to do, of course, whether Mueller and Cheney came up with these provisions of the PATRIOT Act to bypass the legal interpretations that made data mining Americans so troubling at the hospital confrontation. But it does seem clear this use of Section 215 — and the PATRIOT Act more generally –arises out of that confrontation.

Nevertheless, it seems like an interesting question to answer before we get a new FBI Director. And oh by the way, have you noticed that in spite of confirmations Jim Comey would get the job almost two weeks ago, Obama has not yet submitted that nomination, for a position with a very clear end date.


7 replies
  1. P J Evans says:

    I wonder what Mr O’s good buddies on the R side of Congress told him on their last lunch date.

  2. joanneleon says:

    One thing I remember vaguely from that time period was that there was talk about the Terrorist Surveillance Program (TSP) (wasn’t that what they were calling it then?) was split up into different programs spanning different agencies after the Risen article was published, in order to avoid oversight and/or to make it easier to answer questions in the negative.

  3. What Constitution? says:

    Jeh Johnson should be appointed to head a Presidential Commission to sort out the current status of the US’s electronic eavesdropping and data collection activities, the implementation and scope of interpretations of the post-9/11 legislation, and an assessment of recommendations to assure consistency of the US response to the terrorist threat with the US Constitution.

    The past two weeks have made it plain that if anybody actually does understand what’s going on, it sure isn’t the legislators who supposedly “oversee” this stuff — they can’t even begin to get a story straight among themselves. Marcy’s quotation here of Sen. Feingold’s prescient remarks in 2009 about how much was unknown and undisclosed even at the time of the Patriot Act renewals casts a very vivid light upon the inability of anyone “in the know” today to actually explain how and why the Snowden disclosures of the past week are somehow “not news”, and we can only hope that the immediate panic over whether or not Snowden will be prosecuted or disappeared will be supplanted by some kind of effort to actually understand what’s going on and why.

    Since the Obama administration has doubled down on the opacity of the enabling legislation itself by seeking secretly to implement it and brazenly to clothe the resulting programs in state secrets claims and judicial attacks upon standing, the resulting situation is one where nobody has any way to know, let alone evaluate, whether our government is acting in accordance with our governing principles. It’s as laudable as it was inevitable that somebody, somewhere, was going to reach the conclusion that if the President doesn’t think his own oath to protect and defend the Constitution is binding, then a line operator at an NSA defense contractor’s “oath” to shield his own conduct from disclosure may be considered no more effective. And here we are.

    Jeh Johnson is one of the very few “inner circle” players who has gone on record to speculate that maybe, just maybe, a decade later and a gazillion dollars down the road it might be worth taking time to reassess what we hath wrought here in the War on Terror. It’s time for somebody to step back and assess — with some degree of credibility, independence and accountability (what an arguably silly word to be using in the context of the Obama Administration, I know, I know) — what is going on and how we might do something to line what is going on up against what our Constitution provides as the rules. I’d listen to what he had to say.

  4. phred says:

    Thanks for this post EW. I’ve been wondering about the connection between the hospital confrontation and the recent revelations about the NSA spying program.

    I wonder whether Comey might quietly withdraw rather than risk bringing that 2004 confrontation under more scrutiny…

    At the time, we speculated that what sparked the confrontation was attorneys fretting about putting themselves in a position that might jeopardize their careers (rather than noble impulses to respect constitutional limits). I doubt that anyone involved wants that episode revisited more closely.

  5. thatvisionthing says:

    @What Constitution?: “the resulting situation is one where nobody has any way to know, let alone evaluate, whether our government is acting in accordance with our governing principles.”

    If that’s where we’re at – and that’s where we’re at! – then you already know our government is not acting in accordance with our governing principles. Even if Jeh Johnson was God and decided that this is not in accordance with our governing principles, THAT wouldn’t be in accordance with our governing principles. We the People decide. We’re all the deciders. None of us an angel, none of us a god, every one of us just like any one of us, equal, all of us. Let the reasoning begin.

    I would actually go farther than that, in my own constitutional heart. I don’t believe you can fairly, constitutionally, do any of this crap to anyone in the world, much less anyone in the United States. That’s a canard and you can see they’ve been playing it that way (Snowden: “We collect more digital communications from America than we do from the Russians.”). No senior government official or act of Congress or court or moral authority figure or computer program or whatever can pronounce that other people or countries or groups or whatever are terrorists or targets without giving them a chance to address and defend themselves against those charges – to be heard. This us vs. them imperative is what creates people who want to harm us. Wouldn’t you? It’s just self-defense. Maybe terrorists really means terrified. Stop this madness. Sit down and reason together. Checks and balances, votes and juries of your peers, truth, whole truth and nothing but the truth, that’s what it’s all about.

    Earth to government, hello.

  6. Garrett says:

    The Next Hurrah link is a bit troubling.

    I would have hoped, when the national Next Hurrah came, that it didn’t have so much need for NSA timelines and such.

    That the old timelines could have been set aside, and allowed to linkrot.

    Rather than being so currently and directly relevant.

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