FBI’s Back Door Searches: Explicit Permission … and Before That

I have written numerous times about the timing of authorization for FBI to do back door searches. There’s a passage of the November 6, 2015 FISC opinion finding those searches to be constitutional that some have taken to clearly date the authority. But I believe the (unredacted sections of the) passage are being misread.

As Judge Thomas Hogan describes, “Queries by FBI personnel of Section 702-acquired data…

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As the unredacted parts of the section make clear, queries for both foreign intelligence information or evidence of a crime “have been explicitly permitted by the FBI Minimization Procedures since 2009.” [my emphasis] The footnote goes onto describe how Minimization Procedures approved by Attorney General Mukasey on October 22, 2008 and submitted on some redacted date were approved by an opinion issued on April 7, 2009.

Already, that’s a curious set of details. If the minimization procedures were approved in October 2008, normally they’d be submitted close to right away, though it’s not clear that that happened. But why bother, given that FISC had just approved FAA certifications on September 4 (this timing resembles what had happened earlier that year, when the government significantly changed the program within days of getting certificates approved)?  In any case, James Clapper’s censors want to hide what those dates were. One likely reason they might have done so would be to hide the dates from defendants, including a few of the ones challenging 702. Another would be to obscure how the approval process went after passage of FISA Amendments Act, specifically given that the FISA Court of Review finalized its Yahoo opinion in August of that year, in which it relied on DOJ’s promise that “there is no database” of incidentally collected US person information.

There Is No Database

But two other things suggest that’s not the end of the story. First, the use of “explicitly” suggests there may have been a period before FISC approved the minimization procedures when such a practice was approved but perhaps not explicitly. Perhaps that simply refers to that lag period, between the time Mukasey approved those minimization procedures and the time FISC approved them.

But then there’s that redacted paragraph (the next footnote, 25, starts after it). Hogan adds something to his discussion beyond his description of the explicit approval of those minimization procedures.

As I have pointed out, Mukasey (writing with then Director of National Intelligence Mike McConnell, who would also have to approve any PRISM minimization procedures) made it clear in response to a Russ Feingold amendment of FISA Amendments Act in February of 2008 that they intended to spy in Americans under PRISM.

So it sure seems likely the Administration at the very least had FBI back door searches planned, if not already in the works, well before FISC approved the minimization procedures in 2009. That’s probably what Hogan explained in that paragraph, but James Clapper apparently believes it would be legally inconvenient to mention that.

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 reply
  1. martin says:

    quote”That’s probably what Hogan explained in that paragraph, but James Clapper apparently believes it would be legally inconvenient to mention that.”unquote

    Ya mean, that Mr. Least Untruthful liar of liars James Clapper?
    Naw…really?
    Well dust my britches. not.
    This son of a maggot has raised his middle finger to the rule of law from the day he was spawned, and somehow, has escaped any accountability whatsoever, even after blatantly lying to Congress. Furthermore, in response to this latest bullshit slap on the wrist by one FISA Judge Hogan, the ODNI(actually him) replied in the same fashion..

    quote””The Government has informed the Court that there was no intent to leave the FISC with a misimpression or misunderstanding, and it has acknowledged that its prior representations could have been clearer…”unquote

    https://www.techdirt.com/articles/20160420/06055234219/fisa-court-still-uncovering-surveillance-abuses-nsa-fbi.shtml#addyourcomment

    No intent. “Could” have been clearer. right. un hunh. gottcha. “If his lips are moving…” comes to mind.

    If the comments to the article linked above are any indication..I’m not alone in my view that until some Judge besides these cowards in the FISC, finally gets the balls to PROSECUTE these scumbag criminals, and throw a few in prison…nothing is going to change…EVER.

    And btw emptywheel…thanks for linking to both the McConnell/Mulkasy letter and your previous analysis related to it. It really does help to see previous background, which in turn, shows the depth to which these scum sucking bastards go to, to keep their little charade of bullshit from imploding. It’s actually mindboggling to see “threats” delivered to Congress in the form of “if you allow this amendment to pass, we’ll tell the POTUS to veto it” bullshit. Amazing how adolescent these schmucks really are. Sorta like a schoolyard gang threatening a kid to “play ball” or else. Even more amazing is to think Congresscritters would be intimidated enough by this crap to actually change a Bill, just because the President might “veto” it? Spare me. If anything, Congress should have replied with a verbal spit in the IC’s face. But noooooooooo.. what do they do? Play ball. That’s what. If ever there was a posterchild for Cowards-R-Us.. Congress is IT.
    Ok..rant over.

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