Robert Mueller's Role in the NSA Controversy

Yesterday Glenn Greenwald quoted this observation from the ubiquitous--and always insightful--commenter JaO:

Note that nowhere in Comey's story are NSA officials mentioned. But FBI Director Robert Mueller was a central player in the drama -- he even met personally with President Bush -- and also was one who threatened resignation. This indicates that, whatever was going on before the program was modified, those activities were being conducted by the FBI, not just the NSA. That could mean purely domestic unwarranted wiretaps, unwarranted black-bag jobs, or similar misconduct.

Glenn then added:

It is indeed quite notable how prominent a role the FBI Director played in the Comey episode, and how absent are NSA officials. It might be worthwhile asking why the FBI Director was so intimately involved in eavesdropping which allegedly did not include purely domestic communications.

The same thing occurred to me when I read Comey's testimony. But then I remembered something: an article I had read a long time ago about Mueller's involvement in the NSA program. After a bit of digging around, I managed to find it--a U.S. News & World Report article from March of 2006. The article, which is clearly informed by sources very close to Mueller, seems to undermine the suggestion that the FBI, under Mueller's leadership, would have engaged in warrantless domestic spying. Indeed, the article portrays Mueller as having pushed back in significant ways against administration efforts to subvert the law:

In the dark days after the Sept. 11, 2001, terrorist attacks, a small group of lawyers from the White House and the Justice Department began meeting to debate a number of novel legal strategies to help prevent another attack. Soon after, President Bush authorized the National Security Agency to begin conducting electronic eavesdropping on terrorism suspects in the United States, including American citizens, without court approval. Meeting in the FBI's state-of-the-art command center in the J. Edgar Hoover Building, the lawyers talked with senior FBI officials about using the same legal authority to conduct physical searches of homes and businesses of terrorism suspects--also without court approval, one current and one former government official tell U.S. News. "There was a fair amount of discussion at Justice on the warrantless physical search issue," says a former senior FBI official. "Discussions about--if [the searches] happened--where would the information go, and would it taint cases."

FBI Director Robert Mueller was alarmed by the proposal, the two officials said, and pushed back hard against it. "Mueller was personally very concerned," one official says, "not only because of the blowback issue but also because of the legal and constitutional questions raised by warrantless physical searches." . . .

A former marine, Mueller has waged a quiet, behind-the-scenes battle since 9/11 to protect his special agents from legal jeopardy as a result of aggressive new investigative tactics backed by the White House and the Justice Department, government officials say. . . .

Government officials told the magazine that Mueller and then Deputy Attorney General James Comey, who also questioned the NSA spying program, both believed that while it was a close call legally, the president did have authority to conduct electronic surveillance of terrorism suspects in the United States without court approval; both men, however, raised grave concerns about the possible use of any information obtained from any warrantless surveillance in a court of law. . . .

White House lawyers, in particular, Vice President Cheney's counsel David Addington (who is now Cheney's chief of staff), pressed Mueller to use information from the NSA program in court cases, without disclosing the origin of the information, and told Mueller to be prepared to drop prosecutions if judges demanded to know the sourcing, according to several government officials. Mueller, backed by Comey, resisted the administration's efforts. "The White House was putting pressure on Mueller to broadly make cases with the intelligence," says one official. "But he did not want to use it as a basis for any affidavit in any court." Comey declined numerous requests for comment. Sources say Mueller and his general counsel, Valerie Caproni, continue to remain troubled by the domestic spying program. Martin, who has handled more intelligence-oriented criminal cases than anyone else at the Justice Department, puts the issue in stark terms: "The failure to allow it [information obtained from warrantless surveillance] to be used in court is a concession that it is an illegal surveillance."

Mueller has been criticized by some agents for being too close to the White House. . . . But Mueller has not shied away from making tough decisions. He refused to allow FBI agents to participate in CIA and Defense Department interviews of high-value prisoners because of the administration's use of aggressive interrogation techniques. In Iraq and at the Pentagon-run camp for terrorism suspects at Guantanamo Bay, Cuba, it has been FBI agents who have called attention to what they viewed as abuse of detainees.

This helps explain why Comey turned to Mueller when he learned what Gonzales and Card were about to do. Mueller, Goldsmith, and Comey appear to have been of a like-mind with respect to most of these issues.

As I speculated yesterday, it's becoming increasingly clear that one of the major problems with the pre-2004 version of the NSA program--and one of the reasons Goldsmith, Comey, and Mueller were so disturbed by it--was that NSA officials, aided and abetted by the Vice President's Office, were allowing information collected by the NSA program to find its way into court. Cheney and Addington wanted the NSA program to be used for more than mere "early detection" of terrorist attack. They wanted to use this information as evidence in court, both in prosecutions and FISA warrant applications. And they were willing to hide the origin of this information from inquiring judges.

Using the information in this way obviously heightens Fourth Amendment concerns--which is undoubtedly why Comey and others were so troubled by it. Moreover, if the FBI is allowed to use information gathered via warrantless NSA surveillance to make the showing necessary to secure a FISA warrant, it completely undermines the entire FISA framework. It would be like the police searching your home and then using the evidence they find to apply for a warrant to continue searching your home.

The problem was apparently brought to a head when the chief judge of the FISC caught on to what was happening and insisted that some sort of firewall be implemented.

The surviving program, which was eventually reauthorized by Comey, likely included new controls designed to prevent the use, whether inadvertent or otherwise, of information obtained via warrantless surveillance in a court of law. While this move likely reduced the risk of abuse by giving government officials some incentive to seek FISA warrants instead of simply bypassing the court (because only evidence obtained by FISA warrant would be admissible), it also had the somewhat perverse (and perhaps intended) effect of reducing the odds that any court would ever have the opportunity to rule on the legality of the program. As the official quoted in the article says, the self-imposed prohibition against using this evidence in court is essentially a concession that the surveillance itself is illegal.

At any rate, while Mueller certainly could have done more, it appears that his conduct throughout this affair was relatively admirable. Like Comey and Goldsmith, he pushed back in the ways that he could. History will likely judge him more kindly than most high-ranking Bush administration officials.