Jim Comey Lied When He Claimed FBI Needs a Judge to Read Your Email

I believe that Americans should be deeply skeptical of government power. You cannot trust people in power. The founders knew that. That’s why they divided power among three branches, to set interest against interest. — FBI Director Jim Comey

As part of a piece on James Risen’s stories, 60 Minutes did an interview with Jim Comey. It rehearsed his role in running up hospital steps in 2004 to prevent Andy Card from getting an ill John Ashcroft to rubber stamp illegal surveillance — without mentioning that Comey and the other hospital heroes promptly got the same program authorized by bullying the FISA Court. Trevor Timm called out this aspect of 60 Minutes’ report here.

CBS also permitted Comey to engage in Apple encryption fear-mongering without challenge. CNN, to its credit, called Comey on his misrepresentations here.

But perhaps Comey’s biggest stretcher came when Scott Pelley asked him whether FBI engages in surveillance without a court order.

Scott Pelley: There is no surveillance without court order?

James Comey: By the FBI? No. We don’t do electronic surveillance without a court order.

Scott Pelley: You know that some people are going to roll their eyes when they hear that?

James Comey: Yeah, but we cannot read your emails or listen to your calls without going to a federal judge, making a showing of probable cause that you are a terrorist, an agent of a foreign power, or a serious criminal of some sort, and get permission for a limited period of time to intercept those communications. It is an extremely burdensome process. And I like it that way.

Comey was admittedly careful to caveat his answer, stating that FBI does not engage in “electronic surveillance” without a court order. That probably excludes FBI’s use of National Security Letters. Though as DOJ’s Inspector General has made clear, FBI uses NSLs for a number of things — including communities of interest, obtaining one or possibly two degree collection of phone records, as well as a bunch of other things that remain redacted — that the NSL law didn’t envision. Indeed, FBI’s NSL requests have gotten so exotic that some Internet companies started to refuse — successfully — in 2009 to comply with the requests, forcing FBI to use Section 215 orders instead.

But the second part of that exchange — Comey’s claim that “we cannot read your emails without going to a federal judge” is egregiously false.

As both ODNI and PCLOB have made clear, FBI can and does query incidentally collected data obtained under Section 702 (PRISM) — that is, it accesses email content — without a warrant. Alarmingly, it does so at the assessment level, before FBI even has any real evidence of wrong-doing.

Second, whenever the FBI opens a new national security investigation or assessment, FBI personnel will query previously acquired information from a variety of sources, including Section 702, for information relevant to the investigation or assessment. With some frequency, FBI personnel will also query this data, including Section 702–acquired information, in the course of criminal investigations and assessments that are unrelated to national security efforts.

That’s not conducting electronic surveillance — because FBI gets the email after the electronic surveillance has already occurred. But that does entail warrantless access of US person content, and does so without any review by a judge. Indeed, with Section 702 collection, a judge never even reviews the foreign targets, much less the US incidental collection accessed by the FBI.

Now I get that Jim Comey is a terrifically charismatic guy, with great PR instincts. But still, 60 Minutes is supposed to be a journalism show. Why, when Comey was telling 60 Minutes straight out they should not trust the government, did they let him make so many bogus claims?

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.

13 replies
  1. Rob McMillin says:

    The part about “bullying the FISA court” is a mite unsubstantiated here, though, isn’t it? I have always operated under the belief that the reason secret courts are secret is to keep the public unaware of a separate rubber stamp process. Do you know differently?

    • emptywheel says:

      Not sure if you clicked through the underlying links, but they lead to this description of what happened:

      DOJ told Kollar-Kotelly she had no authority to do anything but approve their expansive plan to collect Internet data from telecom switches. “[T]he Court ‘shall’ authorize a pen register … if an application brought before it complies with the requirements of the statute.” Even though, by collecting Internet metadata in bulk, the government would take away FISC’s authority to review whether the targets were agents of a foreign power, DOJ argued she had no authority to determine whether this bulk data — which she deemed an “enormous” amount — was “relevant” to the FBI’s investigations into terrorism.

      And that meaning — which the government expanded even further in 2006 to claim the phone records of every single American were “relevant” to the FBI’s standing terrorism investigations — “requires no stretching of the ordinary meaning of the terms of the statute at all,” they claimed, in apparent seriousness.

      DOJ further argued that’s the way the FISA court — which Congress created in 1978 to provide real judicial review while permitting the executive to keep its foreign spying secret — is supposed to work. Having FISC rubber-stamp the program they themselves had refused to authorize “promotes both of the twin goals of FISA,” DOJ argued, ”facilitating the foreign-intelligence collection needed to protect American lives while at the same time providing judicial oversight to safeguard American freedoms.”

  2. P J Evans says:

    I think ’60 Minutes’ stopped being a journalism show when Mike Wallace retired. He was the last journalist they actually had, as far as I can tell.

    • Rayne says:

      They’re capable of quality journalism; don’t know why they simply aren’t doing it. 60 Minutes was the only site I saw that pegged the root problem of the subprime crisis to shoddy lending practices — including deceptively encouraging a mortgagee to accept loan terms based on dead spouse’s income.

      (Still wonder to this day why there’s never been a class action suit against Golden West (now rolled up into TBTF Mega-bank) based on tort law. Bankers were relied upon as experts, and they violated this trust as well as fiduciary responsibilities. 60 Minutes reporting offered the point of entry for such a suit.)

      • P J Evans says:

        Probably would have severely inconvenienced assorted political connections. (Wiki says GW was bought by Wachovia, which means it ended up with Wells Fargo.)

      • Anon says:

        You should look at nakedcapitalism.com. They have had good long-term coverage of this issue and have probed deeply into the exact question of why. The short answer seems to be that the DOJ and other regulators protected them by obtaining “no fault” judgments which suppressed all the relevant evidence. They were also protected by the suspicious death of one key figure in the Robosigning case and by the fact that so many of the groups that could afford to bring real lawsuits (i.e. large bond firms) simply chose not to do so perhaps because they themselves were part of the same market and feared what else might be found.

  3. Anon says:

    Marcy, first off thank you for your timely analysis and for covering this but, I have a hard time with this statement:

    But still, 60 Minutes is supposed to be a journalism show. Why, when Comey was telling 60 Minutes straight out they should not trust the government, did they let him make so many bogus claims?

    60 minutes has not been a serious journalistic enterprise for some time, if, indeed it ever was. Lara Logan’s reports failed basic standards of journalism but she was only suspended (she is now back) for making the public claim that the U.S. government was lying not for relying solely on a single biased source for everything, failing to vet said source, or even to ask why he told her something different than he told the FBI. Nor did 60 minutes ever reveal that he had a financial stake in the story as a security contractor.

    Long before Logan 60 minutes has been accused of using cutaways and other camera tricks to change the substance of interviews and even to re-record the interviewer’s questions during ‘editing’. This kind of behavior is, unfortunately, par for the course.

  4. Don Bacon says:

    The founders knew that. That’s why they divided power among three branches, to set interest against interest.

    That’s an interesting concept, that the legislature representing the people is only one interest engaged in a contest with the executive and the judicial.
    .
    I don’t buy it. I’ll go with James Madison, Madison’s original Bill of Rights
    had as its first principal: That there be prefixed to the Constitution a declaration, that all power is originally vested in, and consequently derived from, the people. That Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.
    .
    Madison’s entry didn’t make the cut, but the principal is correct — power to the people with the president executing the laws and the judiciary making sure it happens correctly. Enough of this “three interests” and another saying we might hear, “three co-equal branches.” Poppycock, I say.

  5. Rayne says:

    This bit:

    Scott Pelley: There is no surveillance without court order?
    James Comey: By the FBI? No. We don’t do electronic surveillance without a court order.

    Pure lulz. Like Evasion 101 right there, Mr. Comey. Don’t answer a Yes or No answer directly, qualify it and leave a hole big enough to house a data farm.

  6. Michael Singer says:

    60 Minutes stories are only as strong as their producers who have the time to work the stories. If the producers of the Comey piece missed the NSL caveat Pelly would miss it as well. No one who knows better assumes Pelly has the time to do the Evening News every week day and dig into 60 Minutes pieces with equal focus and time.
    If Laura Logan is back on 60 Minutes air, the network must fear a lawsuit or two in which she demands “discovery” of the whole process of her video story telling. That would not serve the network’s interests.

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