Marcy Wheeler, a Michigan-based blogger known as emptywheel, says she should have seen it coming. Four years ago, she had figured out that the government was collecting information on Americans, in bulk. She even knew the USA Patriot Act provision it was using to do it.
Of the many government secrets leaked by Edward Snowden since June, the first remains the most shocking: the government is collecting everyone’s phone call records, every day. But four years before Snowden, Wheeler discovered that the government was using bulk collection.
This is the story of how she put the puzzle together.
Wheeler, whom Newsweek profiled earlier this month, digs through government documents, court records and transcripts for clues about the government’s secret programs. Those familiar with her work say she knows more about the national security apparatus than anyone outside of it. Over the period of a few weeks in the fall of 2009, Wheeler put together two important facts Snowden would later confirm: that the Patriot Act was being used to collect Americans’ records in bulk, and that this bulk collection had previously been conducted illegally in connection with the Bush Administration’s warrantless wiretap program that was revealed in 2005.
It all started in the fall of 2009, when Congress was debating legislation to reauthorize the Patriot Act. Significant debate centered on Section 215, the provision which, unbeknownst to the public, was being used to authorize the bulk phone records program. Called the “business records” provision, Section 215 authorizes the government to collect personal records, such as medical or library records, that are “relevant” to a national security investigation. Thanks to Snowden, we now know that in May 2006, the government interpreted the language of the statute to allow bulk collection. But the program did not begin in 2006; that’s simply when it was put on the books or, more bluntly, when it was made legal. During the Patriot Act review four years ago, the administration wanted to protect Section 215 from any changes that would have jeopardized this secret bulk collection.
At the time, some lawmakers sought to amend Section 215 to tighten the link between a known terrorist suspect and the information that could be collected under 215. But Sen. Dianne Feinstein, D-Calif., who had earlier that year ascended to the chairmanship of the Senate Intelligence Committee, protested. Wheeler guessed that the only reason Feinstein would object to more restrictive language for Section 215 was if the intelligence community was using the statute more broadly than they were letting on.This was Wheeler’s first clue.
In a Senate hearing that September, Feinstein objected to any changes to Section 215 that would interfere with any current investigations, which included the inquiry into Najibullah Zazi, who attempted to bomb the New York City subway. Feinstein said that the Zazi case was the biggest terrorist investigation since 9/11.That was Clue No. 2.
Wheeler zeroed in on the Zazi case and found a red flag. The government’s detention motion against Zazi cited two associates who, like Zazi, had bought large quantities of acetone and hydrogen peroxide, beauty supply products used to make bombs. The FBI did not indicate how they had found these associates. Wheeler reasoned that the FBI had found them by pulling data on purchases of these chemicals, rather than through traditional means of intelligence work. Put simply, Wheeler believed the government was using Section 215 to collect information that would then lead them to suspects, rather than to learn more about already-identified suspects.
“I’m going to make a wild-arsed guess and suggest that the Federal Government is doing a nationwide search to find out everyone who is buying large amounts of certain kinds of beauty products,” Wheeler wrote in a blog post on Oct. 1, 2009. “And those people are likely now under investigation as potential terrorism suspects.”
She had figured out that Section 215 was being used for bulk collection.
And that’s where her theorizing on Section 215 might have ended, if it weren’t for Clue No. 3. Christopher Soghoian, now a technology expert at the American Civil Liberties Union, posted a helpful comment on Wheeler’s blog, pointing to testimony by Assistant Attorney General Todd Hinnen that Section 215 supports a secret “collection program.”
Soghoian, who was doing his own detective work on Section 215, also cited some suspicious sentences in a 2008 Inspector General (IG) report on the FBI’s uses of Section 215 that supported Hinnen’s comments. For example, one page mentioned that “two Classified Appendices describe other uses of Section 215 orders to collect [redacted].” “This sentence provides a hint that Section 215 is being used in ways not known to the public,” Soghoian wrote.
“I had [read the IG reports] but not that closely, ‘cause who cared about 215, right?” Wheeler said. But now Section 215 appeared to be very important. Tellingly, some senators were working to prevent the author of the FBI Section 215 IG reports from authoring another report on the National Security Agency’s use of Section 215. The DOJ IG, Wheeler realized, had pissed off the intelligence community. She reread his two reports on Section 215.
That’s when the dots began to connect. As Wheeler read the IG reports, she noticed that DOJ started to use Section 215 at the same time the government was trying to create a legal framework for the illegal surveillance programs carried out after 9/11, called the President's Surveillance Program. It became clear that whatever the government was trying to protect during the reauthorization process wasn’t new but actually dated back to President Bush’s surveillance regime.
“Watching the committee hearings, I basically came up with a question, which is, What is the secret program?” Wheeler said. “As I was answering that question, I kept going back to things that pointed to the illegal program being worked into it.”
Despite connecting Section 215 to bulk collection and bulk collection to the illegal collection of metadata under the illegal programs – metadata Wheeler knew they were collecting and using to identify suspects -- she hadn’t envisioned just how big the program is.
“I still didn’t grasp the full scope of it,” Wheeler said. She was still stuck on the model she envisioned from the Zazi case: a responsive bulk collection program that pulled in records for buying certain products or for people who attended certain mosques (she still hasn’t ruled out the existence of such programs). But when Snowden revealed the dragnet phone program, Wheeler said, she had all the pieces: “I just hadn’t thought that through.”
Even without grasping the breadth of the collection, Wheeler had in a matter of about six weeks figured out that the government was using Section 215 to collect data in bulk, and that collection had been taking place illegally since 9/11.
Bush’s illegal domestic surveillance program, along with Section 215 orders and other data collection authorities, should all be considered “as one whole,” Wheeler wrote in Oct. 2009. “As the authorities of one program got shut down by exposure or court rulings or internal dissent, it would migrate to another program. That might explain, for example, why Senators who opposed fishing expeditions in 2005 would come to embrace broadened use of Section 215 orders in 2009.”
Today, we know she had it exactly right.