IG report on Bush's warrantless surveillance program

The shameful FISA 'modernization' law passed by Congress last July, which retroactively legalized the egregiously illegal (and still mysterious) electronic surveillance of Americans instituted by George Bush, had at least one modestly useful provision: It required the inspectors general of the DoD, DoJ, NSA, CIA, and ODNI to produce a report on the history and scope of the secret Bush surveillance. The unclassified version of the IG report has now been made public (PDF).

It tells us few details about the surveillance programs and its conclusions are so tame as to be risible. On the other hand, it does contain some food for thought.

First, very strikingly, several top Bush administration officials refused to be interviewed by the inspectors general for this report. The IG investigation was mandated by Congress in exchange (it was a terrible 'bargain') for permitting the lawlessness of the Bush surveillance programs to be swept under the carpet permanently. But the following key figures in the White House, the DoJ, and the CIA gave the inspectors general the brush off: Andrew Card (Bush's Chief of Staff); David Addington (Cheney's CoS and Counsel); John Ashcroft (AG); John Yoo (DoJ's Office of Legal Counsel); and George Tenet (CIA).

Second, the report acknowledges what many of us surmised in 2007 from circumlocutions used by Alberto Gonzales in testimony to the Senate Judiciary Committee - that what Bush termed the 'Terrorist Surveillance Program' (the interception of international communications into the US by suspected Al Qaeda operatives) constituted only one of the warrantless surveillance programs that Bush was authorizing without seeking permission from the FISA Court. The IG report lumps all of Bush's other warrantless programs, essentially mysterious to us, under the rubric "Other Intelligence Activities". Together the TSP and the OIA are termed the "President's Surveillance Program" (PSP).

The inspectors general tell us nothing substantive about these "Other Intelligence Activities". Their report does however note that when John Yoo's legal memos (see below) were reviewed in 2003 by DoJ officials Jack Goldsmith, Patrick Philbin, and James Comey, they were found to be particularly weak in regard to justifying the "Other Intelligence Activities".

Third, it's worth emphasizing that the repeated presidential authorizations for warrantless surveillance programs, for years on end, were made under a presidential assertion that a more or less permanent state of emergency existed. The Justice Department's Office of Legal Counsel did its part in undermining the Constitution by holding, again and again, that the existence of a threat of terrorism within the United States made warrantless surveillance "reasonable" under the Fourth Amendment. The 'evidence' for such a permanent threat, assembled regularly by the CIA, consisted in part of the surveillance that had already been conducted without warrant. In other words, it was a self-perpetuating cycle.

The Presidential Authorizations were issued at intervals of approximately every 45 days. As described in the next section, with each reauthorization the CIA and later the NCTGC prepared an assessment of current potential terrorist threats and a summary of intelligence gathered through the PSP and other means during the previous authorization period. The Department of Justice's Office of Legal Counsel reviewed this information to assess whether there was "a sufficient factual basis demonstrating a threat of terrorist attacks in the United States for it to continue to be reasonable under the standards of the Fourth Amendment for the President to [continue] to authorize the warrantless searches involved" in the program. The Office of Legal Counsel then advised the Attorney General whether the constitutional standard of reasonableness had been met and whether the Presidential Authorization could be certified "as to form and legality." Each of the Presidential Authorizations included a finding to the effect that an extraordinary emergency continued to exist, and that the circumstances "constitute an urgent and compelling governmental interest" justifying the activities being authorized without a court order.

Fourth, Alberto Gonzales opined to the inspectors general that the involvement of the Justice Department in this legal sham every 45 days was important because (a) it helped to convince the private telecoms to go along with programs that violated the clear letter of the law, and (b) it would help in the event of future investigations into those involved in implementing the illegal programs.

[Alberto Gonzales] also stated that it was important that the cooperating private sector personnel know that the Attorney General had approved the program. In addition, Gonzales said that for "purely political considerations" the Attorney General's approval of the program would have value "prospectively" in the event of congressional or inspector general reviews of the program.

Fifth, from 2001 to May 2003 John Yoo was the only person at the Office of Legal Counsel, and one of only three non-FBI personnel at the Justice Department, to be read into the warrantless surveillance programs. Yoo's nominal supervisor at OLC, Jay Bybee, was kept out of the loop and had "no idea" how his deputy John Yoo drafted the OLC memos that (according to Gonzales) gave "a sense of legitimacy" to the programs. Those memos were of course scandalously incompetent, a fact that caused consternation at OLC after Yoo's departure.

Sixth, the lawyers got involved in generating opinions in support of the legality of the programs only after Bush had begun authorizing them in October 2001. That was when Attorney General Ashcroft was read into the program, and the same day he authorized it. At OLC, John Yoo did not produce his first memo supporting the legality of these warrantless surveillance programs until November 2, 2001. The NSA lawyers as well were kept out of the loop until after Bush authorized the program in consultation with NSA Director Hayden – at which time the NSA lawyers dutifully "supported the lawfulness of the resulting program".

Seventh, George Bush's account of the genesis of the warrantless surveillance is definitively shown to be false (as I had surmised here two years ago). After the controversial programs became public, Bush tried to portray himself as an innocent bystander in their development. Bush wanted voters to believe that he'd merely implemented something that the NSA Director had wanted to do.

The spying that would become such a divisive issue for the White House and for General Hayden grew out of a meeting days after the Sept. 11 attacks, when President Bush gathered his senior intelligence aides to brainstorm about ways to head off another attack.

"Is there anything more we could be doing, given the current laws?" the president later recalled asking.

General Hayden stepped forward. "There is," he said, according to Mr. Bush's recounting of the conversation in March during a town-hall-style meeting in Cleveland.

By all accounts, General Hayden was the principal architect of the plan. He saw the opportunity to use the N.S.A.'s enormous technological capabilities by loosening restrictions on the agency's operations inside the United States.

Well, not quite all accounts. At the time this NYT report appeared, I commented that it was incoherent because its sources tried to portray Cheney –improbably - as doing little more than cheerleading on behalf of Hayden's initiative. More likely, I thought, the pressure for warrantless surveillance programs came from Cheney first, and Hayden eventually bowed to the pressure.

The new IG report confirms that my interpretation of events was right (from page 5):

In the days immediately after September 11, 2001, the NSA used its existing authorities to gather intelligence information in response to the terrorist attacks. When Director of Central Intelligence Tenet, on behalf of the White House, asked NSA Director Hayden whether the NSA could do more against terrorism, Hayden replied that nothing more could be done within existing authorities. When asked what he might do with more authority, Hayden said he put together information on what was operationally useful and technologically feasible. This information formed the basis of the PSP [President's Surveillance Program].

Shortly thereafter, the President authorized the NSA to undertake a number of new, highly classified intelligence activities.

So, the IG report has nothing about a dramatic face-to-face meeting between Bush and Hayden. Instead, Tenet was sent to pressure Hayden to have the NSA do more, and we can infer that Hayden responded that he would expand surveillance if he received explicit authorization.

This section of the history of the programs is critical, but notice how briefly and vaguely the inspectors general treat it. In particular, nobody is identified as having sent Tenet to talk to Hayden. Tenet merely chats with Hayden "on behalf of the White House". Who in the 'White House'? We're not told, and that fact speaks volumes I think. It was Cheney, and the inspectors general don't care to say so at least in their unclassified version of the report.

Eighth, much of the declassified IG report is devoted to a detailed narrative of how lawyers at the post-Yoo Justice Department refused to continue backing the surveillance programs in March of 2004. Little here appears to be new, though I do not remember knowing that after Bush reauthorized the programs without DoJ concurrence, FBI Director Mueller told Bush that he would remove the FBI from participation in the programs. Mueller also threatened to resign if Bush required the FBI to continue participating in the program.

Ninth, in 2006 the Justice Department's Inspector General investigated the value to the FBI of the intelligence generated by the warrantless surveillance programs. As referred to in this combined report, the classified 2006 study appears to have found that the programs generated lots of useless 'leads' and relatively little of any value (it "concluded that although PSP-derived information had value in some counterterrorism investigations, it generally played a limited role in the FBI's overall counterterrorism efforts").

Meanwhile Michael Hayden as CIA director, and some of his immediate subordinates, have touted the importance of PSP-derived information in CIA activities. However the Inspector General for the CIA found that the CIA was not tracking the information it received in such a way as to be able to substantiate such claims about its importance. CIA officials also told the Inspector General that much of the PSP-derived information was "vague or without context", rendering it of little use.

Tenth, the DoJ Inspector General's report found that Alberto Gonzales' testimony about the warrantless surveillance programs to the Senate Judiciary Committee was "confusing, inaccurate, and had the effect of misleading" those who hadn't been read into the program. Gonzales falsely told the Committee that the March 2004 dispute between the DoJ and the White House was unrelated to the "Terrorist Surveillance Program" whose existence Bush had acknowledged. Gonzales also falsely said that DoJ lawyers had no concerns about that program's legality.

Rather bizarrely, however, the DoJ Inspector General's report concluded that Gonzales "did not intend to mislead Congress".

crossposted at unbossed.com