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Context of 'February 2, 2006: Judge Rules E-Mail Surveillance Legal'

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Assistant Attorney General William Moschella writes to Michael Battle, the director of the Justice Department’s Executive Office for US Attorneys, and others. In his letter, Moschella recommends that “we support eliminating the court’s role” in appointing interim US Attorneys, “and believe the AG [attorney general] should have that authority alone.” Essentially, Moschella is recommending that Attorney General Alberto Gonzales (see February 14, 2005) be the only person with the authority to appoint interim US Attorneys. Language will be inserted into the USA Patriot Act reauthorization (see July 2005 - March 2006 and March 9, 2006) giving Gonzales this power. Moschella also includes Senate Judiciary Committee official Brett Tolman, who will later become the US Attorney for Utah, in the email exchange, along with Justice Department aide Monica Goodling and Battle’s aide Natalie Voris. (US Department of Justice 3/23/2007 pdf file; Thomas 2011) It is unclear if Moschella knows that the language inserted in the USA Patriot Act reauthorization was first drafted almost six months before his communication with Battle (see July 2005 - March 2006).

A federal judge rules that the USA Patriot Act allows the federal government to trace e-mail information without court warrants or evidence of criminal behavior. As part of a secret ongoing grand jury investigation, the Justice Department asked the court to approve the monitoring of an unnamed person’s e-mail correspondents—not the contents of the e-mails, which would require evidence of wrongdoing, but instead the identities and e-mail header information. The magistrate judge in that case refused, and asked the Justice Department to submit an additional brief demonstrating that its request would be legal. Instead of submitting the brief, the Justice Department went to US District Judge Thomas Hogan, a Reagan appointee. Hogan reviewed the federal law dealing with “pen register” and “trap and trace” devices, terms having to do with telephone wiretapping, and today rules that those laws “unambiguously” authorize such e-mail surveillance. Hogan rules that the Patriot Act authorizes that sort of e-mail surveillance, as long as prosecutors note that such surveillance might be “relevant” to an investigation. (United States District Court for the District of Columbia 3/10/2001; McCullagh 2/9/2006)


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