One of the unresolved mysteries in the March 10 2004 Intensive Care Showdown over the government's secret wiretapping and data-mining programs is why FBI Director Robert Mueller plays a central role. The spying operation has long been attributed to the National Security Agency, while the legal sign-off came from attorneys at the Justice Department.
Ostensibly the spying operation was focused on external threats to the country, so the spying information should have been mostly funneled to the CIA. But new FBI documents released today by Congress hint that a controversial FBI office that is already under legal scrutiny may have been involved (SEE UPDATE that questions this conclusion).
The FBI's Mueller joined with then-Attorney General John Ashcroft and his deputy James Comey in threatening to resign unless the program was changed. So the FBI had to have been deeply involved in either doing some of the data mining or receiving leads from the NSA.
Today Congressman John Conyers released the notes (.pdf) that Mueller provided to the House Judiciary Committee about his meetings in the time period surrounding the Intensive Care Showdown.
As others have noted, the notes back up Mueller and Comey's account of then White House Counsel Alberto Gonzales' and White House Chief of Staff Andrew Card's attempt to get the ailing Ashcroft to overrule Comey and give a legal blessing to the secret, warrantless intelligence activities.
The morning that the Justice Department told the White House that it had changed its mind about the secret spying and wouldn't renew its legal sign-off, Mueller's notes indicates he met with the FBI's General Counsel Valerie Caproni; John Pistole - then the Executive Assistant Director for Counterterrorism and Counterintelligence; and most intriguingly, Michael Fedarcyk - the first Section Chief of the Communication Exploitation Section, Counterterrorism Division. (See Update on how it might be another Fedarcyk)
As only Wired News has reported, the Communications Exploitation Section is already under criminal investigation by the FBI and the Justice Department's Inspector General Glenn Fine for sending misleading "emergency" letters to the nation's telecoms to get thousands of Americans' phone records. Those fake "exigent letters" were first revealed by the Inspector General's report on the abuse of a key Patriot Act power, known as a National Security Letter.
Fedarcyk looks to be the lowest ranking member at that meeting (Wainstein seems to have been Mueller's Chief of Staff (Hat Tip PL) former General Counsel, while Gebhardt was a Deputy Director) -- meaning that his office was likely centrally involved somehow in the secret surveillance -- perhaps only as a receiver of leads from the NSA -- perhaps as a partner in the government's alleged data-mining of U.S. citizens phone and internet usage records.
The Communications Exploitation Section "analyzes terrorist electronic and telephone communications and identifies terrorist associations and networks," according to 2004 testimony from Pistole.
UPDATE 10/18: An alert reader writes in to point out that there were two high level officials with the last name Fedarcyk:
