FISA’s 15-Day Exemption

/in /by

Update, 7/16: See this post for a modification of this one.

I’m updating my warrantless wiretapping timeline and noticed something important (I think).

The IG Report released today notes that the 15-day exemption in FISA proves that Congress always intended FISA to restrict the Executive Branch’s authority, even in times of war.

Among other concerns, Yoo did not address the section of FISA that creates an explicit exemption from the requirement to obtain a judicial warrant for 15 days following a congressional declaration of war. See 50 USC 1811. Yoo’s successors in OLC criticized this omission in Yoo’s memorandum because they believed that by including this provision in FISA Congress arguably had demonstrated an explicit intention to restrict the government’s authority to conduct electronic surveillance.(12)

But now look at the timeline (this is evolving quickly so it may change by the time you look at it).

September 12, 2001: AUMF authorizes the President “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.”

September 18, 2001: Bush signs AUMF.

September 25, 2001: OLC provides memo to David Kris on “a purpose” language for FISA.

October 1, 2001: Hayden briefs HPSCI.

October 2, 2001: Predecessor bill to PATRIOT Act introduced into House.

October 3, 2001: 15-day exception in FISA after declaration of war expires.

October 4, 2001, from DAAG OLC to Alberto Gonzales: OLC 132,which consists of two copies, one with handwritten comments and marginalia, of a 36-page memorandum, dated October 4, 2001, from a Deputy Assistant Attorney General in OLC to the Counsel to the President, created in response to a request from the White House for OLC’s views regarding what legal standards might govern the use of certain intelligence methods to monitor communications by potential terrorists. Warrantless wiretapping program authorized. Predecessor bill to PATRIOT Act introduced into Senate.

October 6, 2001: Program begins. [my emphasis]

There were several things going on at once (see this post for more detail). There was some debate about the AUMF–but that got signed on September 18. There were initial discussions about the PATRIOT Act–including how FISA should be altered in it. There was a briefing of HPSCI on October 1 that–Nancy Pelosi understood–was part of expanded NSA authorities. And–according to Barton Gellman–the warrantless wiretap program was approved on October 4, 2001, and it began on October 6, 2001.

In other words, the program was formally approved on the 16th day after the AUMF.

But at least according to Nancy Pelosi, Congress was briefed on ongoing underlying activities as early as October 1.

Meaning, the Bush Administration was already using those expanded authorities–but they were doing so by exploiting the 15-day exemption written into FISA!

So Yoo’s analysis is not just dead wrong because FISA clearly contemplates its application even during wartime. But it’s even worse because during this particular wartime situation, the Administration had already used that 15-day exemption period as it debated what and how to implement its warrantless wiretap program.

The Administration showed, by its actions, that it knew the AUMF didn’t trump FISA. But then it proceeded to base its entire wiretap program on that very assumption.

image_print
  1. alabama says:

    Surely Addington and his pals had this all figured out by May or June, don’t you suppose?

  3. Waccamaw says:

    Dognabbit, ew!

    If yer gonna keep up these post bursts, I’m gonna go broke. This past Monday’s check should be there by now and you are literally *forcing* me to snail you another one next week.

    Plenty of weeds for our resident investigative reporter these days. You go, girl!

    • prostratedragon says:

      Oh nothing. Just might explain the incessant hammering, even at dead points. There might be a specific point down the road at which they want to be sure she’s good and bound up, though I don’t think it’s going quite as well for them as they once thought.

  8. Hmmm says:

    This is weird for another reason too. So… even if you take their legal argument at its (I agree with ew) obviously highly broken face value… if the program was authorized on day X (where X = October 4, 2001)… and data collection under the program began on day X+2… then either it only took 2 days to build the underlying system… which seems (like so many other things we’re being asked to swallow these days) just highly highly unpossible… or else the underlying system was already built and installed and in place and ready to go well before the authorization date. So… how can the building and installation of the underlying system plausibly not be considered part of the same program…? And if it is part of the program, wouldn’t that then necessarily mean that it was built and installed before the program itself was authorized? Even in this highly degenerated sense of the word “authorized”?

  9. fatster says:

    How do these people sleep at night?

    Obama admin: No grounds to probe Afghan war crimes

    By LARA JAKES, Associated Press Writer – 19 mins ago

    WASHINGTON – “Obama administration officials said Friday they had no grounds to investigate the 2001 deaths of Taliban prisoners of war who human rights groups allege were killed by U.S.-backed forces.:

    Link.

  11. posaune says:

    Questions: 1. did we ever learn the basis of the FIS Court concern that led to Comey’s crisis of conscious? 2. did the Iraq invasion constitute a “new” war, hence another 15-day exemption in 2003?

    • prostratedragon says:

      2. is interesting. Didn’t the Bushies claim that the invasion was authorized under some combination of the AUMF and UN resolution 144? (don’t remember the last digit), both from more than 15days previous?

      They can’t maintain both, but it would be so like them to raise an enormous dustcloud trying.

      • emptywheel says:

        You know, that’s a very good question. They didn’t need it, but here’s why.

        The IG report says:

        In October 2002, at Attorney General Ashcroft’s request, Yoo drafted another opinion concerning the PSP. This memorandum, dated October 11, 2002, reiterated the same basic analysis contained in Yoo’s November 2, 2001, memorandum…

        The Iraq War resolution passed Congress on 10/11/2002–the same day Yoo completed this (though the resolution wasn’t signed until October 16). So while they didn’t need the 15 days, I wonder whether they wrote a new authorization extending to totally different groups?

  12. sponson says:

    Didn’t Sen. Bob Graham say a few years ago that authority to violate FISA was requested specifically by the Bush Admin as part of the AUMF, and that it was discussed and explicitly rejected? The proof of intent outlined by EW here would back that up.

    • emptywheel says:

      Tom Daschle:

      On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to “deter and pre-empt any future acts of terrorism or aggression against the United States.” Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize “all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided” the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

      Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words “in the United States and” after “appropriate force” in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

    • NCDem says:

      It was Tom Daschle and not Bob Graham. You can read about the exact wording that Bush came to Daschle with immediately prior to the vote. It is clear that the Bush administration knew the AUMF did not give them cover for avoiding FISA because they were asking for wording that would show Congressionial approval of the wiretapping.

      http://www.historycommons.org/…..e__aumf__1

  13. sponson says:

    Here’s a reference (although it does not quote Graham) to the attempt to include domestic spying in the AUMF and its rejection: link. I also recall that Gonzalez actually testified falsely testified that they did not request domestic spying powers, because certain members of Congress, he said, told him “they were not likely to get it.” So take your pick, either Bush never asked for it, because he knew Congressional intent was that he not violate FISA, or, Bush asked for authority to spy domestically, and was rejected. Either way, he proceeded to do it anyway, and apparently named it “Presidential Surveillance Program” just for good measure.

  14. Palli says:

    So then the Cheney/Bush administration did know and believe Richard Clark and wanted to be prepared for the aftermath of an attack (rather than strengthen preventive measures so an attack would be less possible)
    or the administration wanted these surveillance powers for other reasons-

  15. klynn says:

    Now overlap this timeline with your first date in the Ghorbanifar timeline.(Sept 9,2001)

    There is no way they can claim, “You do not know what it was like after 9-11. Everything was happening so fast…the confusion…”

    Yeah Condi, so fast it was well thought out and docs prepped and ready to take advantage of timeframe. Things can happen very fast when they are all planned out. Clearly, no confusion here. Well thought out, intentional acts.

    EW, this find is as big as your 183.

    Actually, bigger than your 183.

  16. Mary says:

    Great catch on this EW.

    They knew about the 15 days, were using it and there was even a bill already in the works (which didn’t seek an extension of the 15 days) and somehow Yoo didn’t get around to mentioning it.

  18. fatster says:

    Notice that Leahy does use the O-team-approved phrase “move forward”.

    Review skeptical of Bush snooping program’s effectiveness

    BY RAW STORY 

Published: July 11, 200

    “Sen. Leahy calls for inquiry into ‘decisions that run counter to our laws’

    ‘“This report underscores why we should move forward with a nonpartisan commission of inquiry,” Leahy said. “Without a thorough, independent review of decisions that run counter to our laws and treaties, we cannot ensure that these same mistakes are not repeated. Such a commission must have bipartisan support to be able to truly get to the bottom of these issues with objectivity and credibility.”’

    Link.

    • bobschacht says:

      Unfortunately, this is part of the same strategy outlined by Olbermann in his segment #4 last night with Jonathan Turley, “Can Bush be Prosecuted for Surveillance Reports?”
      It is 6 minutes long, and well worth the look. The Democrats are pathologically afraid of prosecuting Bush for *anything*; “investigations” are OK, but for some reason, prosecution is forbidden. Leahy is proposing investigations, but not prosecution.

      Bob in HI

      • fatster says:

        I know, Bob. They are so afraid (of what?) that I doubt Leahy will even be able to get them to “move forward with a nonpartisan commission of inquiry.” Sigh.

  19. LabDancer says:

    I agree with emptywheel’s take on this post above, so far as it goes; but I don’t think it goes on far enough to catch the labrynthian complexity of where Cheney-think took this 15 day ‘exemption’.

    First: I don’t see it as intending any sort of accountability-free zone at all. Rather, I see the intent, and beyond that the only justifiable rationale, being that Congress is saying to the executive branch: if there is a declaration of war — which, incidentally, comes from us in Congress, but we’re not going to think to specifically repeat that here because so often presidents seem to feel obliged to dispute it as if there’s some actual controversy involved in this proposition — we recognize you might be really really busy having to react to a lot of spooky scary urgent things right away without a lot of forethought so it’s going to get messy and mistakes will be made and i’s not dotted and t’s not crossed and all; so you’ve got 15 days grace and then you’ve got to be straight with us and the courts and the constitution and the people, including backfilling on any otherwise illegal wiretapping you’ve been doing to “preserve national security”.

    Next, IMO the good folks in OVP Org, who I think we can agree were really running the show, at least the mechanics and intell and attending to all the orders and paperwork while Bush was furiously adjusting his codpiece, viewed that 15 day grace period not as a mere one-off accountability-free zone [which again, I don’t agree Congress intended it to be, per above], but instead a REPEATABLE tool, once one regards the AUMF not as a declaration of war — which very arguably it is not; I certainly argue it is not, but instead an abrogation of Constitutional responsibility by Congress — but instead a Congressional invitation to the president to declare war at his whim, and moreover to do so repeatedly: in other words , an AURDW, short for Authorization to Use Rolling Declarations of War.

    An AURDW would allow the president to take one ‘war concept’, i.e. The War on Terror, and roll it out organization by organization, territory by territory, person by person, concept by concept, in secret even, at first at least, with each such declaration bringing its very own 15 day accountability-free zone. Need another 15 days? Declare another organization as subject of the WOT. Rinse, repeat, etc. This could apply to render each such declaration, say of al-Haramain, a separate declaration of war; or it could apply to render anything done in relation to al-Haramain for a 15 day period unaccountable, and anything else somehow connected to that also accountability-free, or else it would render the former ineffective and cut in on Article II power, dontcha know.

    You may think this is too loonytoons. Hey, I think it’s loonytoons. But what you think or I think didn’t matter to OVP Org.

    • bmaz says:

      I am not sure about that in the specific, but it seems analogous in the more general. Take for instance the repeated 45 day authorizations, that is kind of what they are doing there – every 45 days Bush/Cheney et. al were finding exceptional circumstances based upon boilerplate crap assertions. They arrogated upon themselves the status of neutral detached super-magistrate for a basket warrant where the basket was the whole fucking United States. They literally obliterated and revoked the Fourth Amendment in the process. Then Congress, brilliant and calm minds that they are, came in and ratified and codified the usurpation with the Protect America Act and then FISA Amendments Act. It is simply unbelievable what occurred, and so few seem to realize or care including Mr. Constitutional Scholar Obama.

      • LabDancer says:

        Well, I agree with all of this as well. And what I’m theorizing and what you are are not mutually exclusive, not at all, but rather each is an effort by a pattern-seeking person to describe some rationale by a large number of people who if anything were and are AGAINST establishing rationales, of any kind, beyond what appeared to them as necessary or useful or both to exercise and preserve and nurture and grow power [IMO Cheney showed us this mind set in an interview he had this spring, on Fox I think, in referring to the point from when Obama was sworn into office, with a Dem majority in each of the House and the Senate: that they had “assumed power”].

        I expect one could dig into the public record, as it is now and as it will be in future as more and more from the Bush-Cheney era is released and escapes from classification and secrecy, and find a lot more to support your theory, and mine, and different theories of others as well — with a lot of them not being necessarily, or at all, in the alternative, but the result of looking to see patterns, as they came up with horse-shit legal-like theories and rationalizations and built on them and shoved them into each other, all the while in aid in using, nurturing, preserving and growing power, and for them and their friends and supporters and those who might carry on their “legacy” and “ideas”.

        It’s amusing to no end to hear movement conservatives and Republicans refer to themselves as having “principles”, with the implication and sometimes the actual assertion that Dems and liberals and progressives and DFHs in contrast do not, and representing themselves as having a “philosophy” and those outside of their thrall suffering from “ideology”, when it seems pretty plain that they have absolutely no principles beyond power — including that the Constitution is to them simply an impenetrable black box transplanted to earth by some ancient godlike species, whereas to the rest of us is a statement of principles to be examined in detail for proper intention and translation to current exigencies, adhered to as a matter of the Rule of Law and where deviated from resulting in alteration where necessary to preserve the human ideals expressed in it or in enforcement where determined its been broken or subverted in pursuit of the idea of power of people over other people.

        This last part is where I join you and others in the notion that young constitutional scholar Obama, who in his studies of the constitution appears to have gotten himself a pretty clear idea of the power levers, has also gotten something of fundamental importance very very wrong. If we don’t take a hard look at the breaking and subversion of the rule of law by those we voted into office to preserve and protect it, then the rule of law is gone — maybe for good. And moreover the act of declining to look into and do something about systemic breaking and subversion of the rule of law constitutes a complicity in that breaking and subversion every bit as serious as the underlying acts, because it ensures the success of the goal of the underlying acts to undermine the rule of law. This extremely bright, articulate, charming, engaging guy has come down from the hills to kill the wounded republic with democratic kindness.

  21. tbsa says:

    I never understood why they said they were be hindered by the timeframe for obtaining a warrant when they already had the 15 day extention. It’s pretty obvious they never intended on worry about warrants.

  22. x174 says:

    excellent observation, mt!!!

    i really enjoy the way that your work compliments that of tpm and provides more of the gritty detail.

    it’s nice to see that you organize all of this sprawling information in timelines: the poorman’s data-mining technique.

    i bet if more and more stuff were put into an ever-expanding mutli-issue, multi-dimesnsional matrix of timelines, the sickening felonious amateurishness would be exposed for all to see.

  23. Hugh says:

    Marcy’s argument is a good one. But looking for a reason or coherence in what the Bush Administration or its minions like Yoo did is futile. They made this stuff up as they went along. Today they might have depended on FISA, tomorrow on the AUMF, or some half-assed OLC opinion that Addington put together and his sockpuppet Yoo wrote down and sent back to him. It really didn’t matter. They would wave this paper or that one in the air as needed. But the basic dynamic was always the same. As Addington said, they would push and push until somebody stopped them. And early on they realized that no one, certainly not the spineless Democrats in Congress, was ever going to.