Unclassified Report On The President's Surveillance Program
In the weeks following the terrorist attacks of September 11, 2001, the President authorized the National Security Agency (NSA) to conduct a classified program to detect and prevent further attacks in the United States. As part of the NSA's classified program, several different intelligence activities were authorized in Presidential Authorizations, and the details of these activities changed over time. The program was reauthorized by the President approximately every 45 days, with certain modifications. Collectively, the activities carried out under these Authorizations are referred to as the "President's Surveillance Program" or "PSP."1
One of the activities authorized as part of the PSP was the interception of the content of communications into and out of the United States where there was a reasonable basis to conclude that one party to the communication was a member of al-Qa'ida or related terrorist organizations. This aspect of the PSP was publicly acknowledged and described by the President, the Attorney General, and other Administration officials beginning in December 2005 following a series of articles published in The New York Times. The Attorney General subsequently publicly acknowledged the fact that other intelligence activities were also authorized under the same Presidential Authorization, but the details of those activities remain classified.
The President and other Administration officials labeled the publicly disclosed interception of the content of certain international communications by the NSA as the "Terrorist Surveillance Program."
Several different agencies had roles in the PSP. At the request of the White House, the NSA was involved in providing the technical expertise necessary to create the program. The NSA also was responsible for conducting the actual collection of information under the PSP and disseminating intelligence reports to other agencies such as the Federal Bureau ofInvestigation (FBI), the Central Intelligence Agency (CIA), and the Office of the Director of National Intelligence (ODNI) National Counterterrorism Center (NCTC) for analysis and possible investigation.2 In addition, the NSA Office of General Counsel and Office of the Inspector General were responsible for reviewing and monitoring the NSA's PSP operation. With the exception of the NSA, the Department of Defense (DoD) had limited involvement in the PSP.
Components of the Department of Justice (DOJ) other than the FBI also were involved in the program. Most significantly, DOJ's Office of Legal Counsel (OLC) provided advice to the White House and the Attorney General on the overall legality of the PSP. In addition, DOJ's Office of Intelligence Policy and Review (now called the Office of Intelligence in DOJ's National Security Division) worked with the FBI and the NSA to address the impact PSP-derived information had on proceedings under the Foreign Intelligence Surveillance Act (FISA). DOJ's National Security Division also handled potential discovery issues that may have involved PSP-related information in international terrorism prosecutions.
The CIA, in addition to receiving intelligence reports as PSP consumers, requested information from the program and utilized this information in its analyses. The CIA also initially prepared threat assessment memoranda that were used to support the periodic Presidential Authorizations.
Beginning in 2005, the newly-created ODNI assumed responsibility for preparing these threat assessment memoranda. In addition, NCTC analysts received program information for possible use in analytical products prepared for the President, senior policymakers, and other Intelligence Community (IC) analysts and officers.
A. Scope of Report
Title III of the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (FISA Amendments Act) - signed into law on July 10, 2008 - required the Inspectors General of Intelligence Community agencies that participated in the PSP to conduct a comprehensive review of the program. The review required to be conducted under the Act was to examine:
(A) all of the facts necessary to describe the establishment, implementation, product, and use of the product of the Program;
(B) access to legal reviews of the Program and access to information about the Program;
(C) communications with, and participation of, individuals and entities in the private sector related to the Program;
(D) interaction with the Foreign Intelligence Surveillance Court and transition to court orders related to the Program; and
(E) any other matters identified by any such Inspector General that would enable that Inspector General to complete a review of the Program, with respect to such Department or element.
The Inspectors General (IGs) of the DoD, DOJ, CIA, NSA, and ODNIcollectively the "PSP IG Group" - conducted the review required under the Act. This unclassified report summarizes the portions of the collective results of the IG reviews that can be released in unclassified form. A separate classified report summarizes the classified results of the individual IG reviews. In addition, the individual IG reports that document the results of each of the participating IGs' reviews and investigations, which provide additional classified details concerning the PSP and each agency's role in the PSP, are included as attachments to the classified report.
Title III of the FISA Amendments Act required that the report of any investigation of matters relating to the PSP conducted by the DOJ Office of Professional Responsibility (OPR) be provided to the DOJ Inspector General, and that the findings and conclusions of such investigation be included in the DOJ OIG review. OPR has initiated a review of whether any standards of professional conduct were violated in the preparation of the first series of legal memoranda supporting the PSP. OPR has not completed its review.
B. Methodology of this Review
The PSP IG Group collectively interviewed approximately 200 government and private sector personnel as part of this review. Most of the interviews were conducted separately by the individual OIGs as part of their agency-specific reviews, although some interviews were conducted jointly. Among the interviewees were former and current senior government officials, including Director of National Intelligence (DNI) John D. Negroponte, NSA Director Keith Alexander, and DNI Michael McConnell, NSA and CIA Director and Principal Deputy DNI (PDDNI) Michael V. Hayden, White House Counsel and Attorney General Alberto Gonzales, FBI Director Robert Mueller, and Secretary of Defense Donald Rumsfeld. Certain senior officials either declined or did not respond to our requests to be interviewed for this review, including Counsel to the Vice President David Addington, White House Chief of Staff Andrew Card, Attorney General John Ashcroft, DOJ Office of Legal Counsel Deputy Assistant Attorney General John Yoo, and former Director of Central Intelligence George Tenet.
The OIGs also interviewed many agency managers and personnel, including attorneys, NSA operational personnel, FBI special agents and analysts, and CIA officials and analysts who were responsible for the day-to-day operation of the PSP, including the legal issues associated with the program.
In addition to these interviews, the PSP IG Group reviewed thousands of documents and electronic records, including the Presidential Authorizations and Threat Assessments supporting reauthorization of the program, OLC legal memoranda, contemporaneous notes and e-mails of various senior officials describing significant events during the program, Foreign Intelligence Surveillance Court (FISC) pleadings and orders, and documents that were used to disseminate PSP-derived leads to FBI field offices and CIA stations for investigation and for other purposes related to the PSP. Finally, there were previous NSA OIG reports and supporting documentation to use as additional sources.
1 In Title III of the Foreign Intelligence Surveillance Act Amendments Act of 2008 (FISA Amendments Act), the President's Surveillance Program is defined as
the intelligence activity involving communications that was authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007, including the program referred to by the President in a radio address on December 17, 2005 (commonly known as the Terrorist Surveillance Program).
FISA Amendments Act, Title III, Sec. 301(a)(3).
2 The National Counterterrorism Center was made a subcomponent of the Office of the Director of National Intelligence by the Intelligence Reform and Terrorism Prevention Act of 2004 and is charged with being the primary U.S. Government organization for analyzing and integrating counterterrorism intelligence, except for intelligence pertaining exclusively to domestic terrorists and domestic counterterrorism.
|Join the GlobalSecurity.org mailing list|