Unclassified Report On The President's Surveillance Program
II. INCEPTION OF THE PRESIDENT'S SURVEILLANCE PROGRAM (PSP)
A. Expansion of NSA's Collection Activities
Prior to September 11, 2001, the Foreign Intelligence Surveillance Act of 1978 and Executive Order 12333 were generally viewed as the principal governing authorities for conducting electronic surveillance for national security purposes.3 The Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801, et seq., was enacted in 1978 to "provide legislative authorization and regulation for all electronic surveillance conducted within the United States for foreign intelligence purposes." S. Rep. No. 95-701, at 9 (1978), reprinted in 1978 U.S.C.C.A.N. 3973,3977. Executive Order 12333 placed restrictions on intelligence collection activities engaged in by Executive Branch agencies, including the NSA, while also seeking to foster "full and free exchange of information" among these agencies. In 2000 the NSA reported to Congress that
(U) The applicable legal standards for the collection, retention, or dissemination of information concerning u.s. persons reflect a careful balancing between the needs of the government for such intelligence and the protection of the rights of u.s. persons, consistent with the reasonableness standard of the Fourth Amendment, as determined by factual circumstances.
(U) In the Foreign Intelligence Surveillance Act (FISA) and Executive Order (E.O.) 12333, Congress and the Executive have codified this balancing. (Citations omitted.)4
As explained below, the PSP expanded the NSA's authority by allowing it to conduct electronic surveillance within the United States without an order from the FISC when certain factual conditions and legal standards were met.
B. Presidential Authorization of the PSP
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.
Shortly thereafter, the President authorized the NSA to undertake a number of new, highly classified intelligence activities.5 All of these activities were authorized in a single Presidential Authorization that was periodically reauthorized.
The specific intelligence activities that were permitted by the Presidential Authorizations remain highly classified, except that beginning in December 2005 the President and other Administration officials acknowledged that these activities included the interception without a court order of certain international communications where there is "a reasonable basis to conclude that one party to the communication is a member of al-Qa'ida, affiliated with al-Qa'ida, or a member of an organization affiliated with al-Qa'ida."6 The President and other Administration officials referred to this publicly disclosed activity as the "Terrorist Surveillance Program," a convention we follow in this unclassified report. We refer to other intelligence activities authorized under the Presidential Authorizations as the "Other Intelligence Activities." The specific details of the Other Intelligence Activities remain highly classified, although the Attorney General publicly acknowledged the existence of such activities in August 2007.7 Together, the Terrorist Surveillance Program and the Other Intelligence Activities comprise the PSP.
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 NCTC 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.
Each Presidential Authorization also included a requirement to maintain the secrecy of the activities carried out under the program. The President also noted his intention to inform appropriate members of the Senate and the House of Representatives of the program "as soon as I judge that it can be done consistently with national defense needs." As discussed in Section III.B.2. below, beginning on October 25, 2001, White House officials and Hayden provided briefings on the PSP to members of Congress and their staffs.
Although there was no legal requirement that the Authorizations be certified by the Attorney General or other Department of Justice official, current and former DOJ officials told us that this certification added value by giving the program a sense of legitimacy. Former Attorney General Gonzales stated that the NSA was being asked to do something it had not done before, and it was important to assure the NSA that the Attorney General had approved the legality of the program. He 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.
C. Threat Assessment Memoranda Supporting Authorization of the PSP
The CIA initially prepared the threat assessment memoranda that were used to support the Presidential Authorization and periodic reauthorizations of the PSP. The memoranda documented intelligence assessments of the terrorist threats to the United States and to U.S. interests abroad from al-Qa'ida and affiliated terrorist organizations. These assessments were prepared approximately every 45 days to correspond with the President's Authorizations of the PSP.
The Director of Central Intelligence's (DCI) Chief of Staff was the initial focal point for preparing the threat assessment memoranda. According to the former DCI Chief of Staff, he directed CIA terrorism analysts to prepare objective appraisals of the current terrorist threat, focusing primarily on threats to the U.S. homeland, and to document those appraisals in a memorandum. Initially, the analysts who prepared the threat assessments were not read into the PSP and did not know how the threat assessments would be used. CIA's terrorism analysts drew upon all sources of intelligence in preparing these threat assessments.
After the terrorism analysts completed their portion of the memoranda, the DCI Chief of Staff added a paragraph at the end of the memoranda stating that the individuals and organizations involved in global terrorism (and discussed in the memoranda) possessed the capability and intention to' undertake further terrorist attacks within the United States. The DCI Chief of Staff recalled that the paragraph was provided to him initially by a senior White House official. The paragraph included the DCI's recommendation to the President that he authorize the NSA to conduct surveillance activities under the PSP. CIA Office of General Counsel (OGC) attorneys reviewed the draft threat assessment memoranda to determine whether they contained sufficient threat information and a compelling case for reauthorization of the PSP. If either was lacking, an OGC attorney would request that the analysts provide additional threat information or make revisions to the draft memoranda.
The threat assessment memoranda were then signed by the DCI. George Tenet signed most of the threat memoranda prepared during his tenure as DCI. On the few occasions when he was unavailable, the Deputy Director of Central Intelligence, John E. McLaughlin, signed the memoranda on behalf of Tenet. McLaughlin also signed the memoranda in the capacity of Acting DCI in August and September 2004.
In November 2004, Porter J. Goss became DCI and assumed responsibility for signing the memoranda. There were no occasions when the DCI or Acting DCI withheld their signatures from the threat assessment memoranda. The memoranda were co-signed by the Secretary of Defense, reviewed by the Attorney General, and delivered to the White House to be attached to the PSP Presidential Authorizations signed by the President.
Responsibility for drafting the threat assessment memoranda was transferred from the CIA to the newly established Terrorist Threat Integration Center (TIIC) in May 2003. This responsibility subsequently was retained by TIIC's successor organization, the NCTC. The DCI continued to sign the threat assessment memoranda through April 2005.
The ODNI was established in April 2005, and the NCTC became a subcomponent of the ODNI. Once Ambassador Negroponte was confirmed as the DNI, senior IC officials believed that DNI Negroponte, as the President's new senior intelligence advisor, should make the IC's recommendation to the President regarding the need to renew the PSP.
The preparation and approval of the threat assessments became the ODNI's primary role in the PSP. Beginning in April 2005, and continuing at specific intervals until the program's termination in early 2007, ODNI personnel prepared and approved threat assessments in support of the periodic renewal of the PSP.
The ODNI OIG found that the ODNI threat assessments were drafted by experienced NCTC personnel who prepared the documents in a memorandum style following an established DOJ format used in earlier PSP renewals. Throughout the ODNI preparation and approval process, the threat assessments were also subject to varying degrees of review and comment by DOJ and ODNI attorneys. Each threat assessment was designed to set forth the DNI's view regarding the current threat of an al-Qa'ida attack against the United States and to provide the DNI's recommendation whether to renew the PSP. NCTC personnel involved in preparing the threat assessments told the ODNI OIG that the danger of a terrorist attack described in the threat assessments was sobering and "scary," resulting in the threat assessments becoming known by ODNI and IC personnel involved in the PSP as the "scary memos." During interviews, ODNI personnel said they were aware the threat assessments were relied upon by DOJ and White House personnel as the basis for continuing the PSP, and understood that if a threat assessment identified a threat against the United States the PSP was likely to be renewed. NCTC analysts also reported that on a less frequent basis they prepared a related document that set forth a list of al-Qa'ida affiliated groups that they understood were targets of the PSP. The ODNI OIG found that the threat asses~mentsand the less frequent list of al- Qa'ida-affiliated groups underwent the same ODNI approval process.
The ODNI OIG also determined that the ODNI threat assessments were prepared using evaluated intelligence information chosen from a wide variety of IC sources. ODNI personnel told the ODNI OIG that during the period when the ODNI prepared the threat assessments, the IC had access to fully evaluated intelligence that readily supported the ODNI assessments that al-Qa'ida terrorists remained a significant threat to the United States. The ODNI OIG found that once the ODNI threat assessments were approved within NCTC and by the NCTC Director, the documents were forwarded through an established approval chain to senior ODNI personnel who independently satisfied themselves that the documents were accurate, properly prepared, and in the appropriate format.
Once the draft threat assessments were subjected to this systematic and multi-layered management and legal review, the documents were provided to the DNI or his Principal Deputy (PDDNI) for consideration and, if appropriate, approval. Overall, the ODNI OIG found that the ODNI process used to prepare and obtain approval of the threat assessments was straightforward, reasonable, and consistent with the preparation of other documents requiring DNI or PDDNI approval.
NCTC analysts involved in preparing the threat assessments told the ODNI OIG that only a portion of the PSP information was ever used in the ODNI threat assessments because other intelligence sources were available that provided more timely or detailed information about the al-Qa'ida threat to the United States. During interviews, the NCTC analysts noted that PSP information was only one of several valuable sources of intelligence information available to them. The NCTC analysts also told ODNI OIG staff that during the period when the NCTC prepared the threat memoranda, the intelligence demonstrating the al-Qa'ida threat to the United States was overwhelming and readily available to the IC.
D. Department of Justice Office of Legal Counsel's Early Memoranda Supporting the Legality of the PSP
From the outset of the program, access to the PSP for non-operational personnel was tightly restricted. Former White House Counsel and Attorney General Alberto Gonzales told the DOJ OIG that it was the President's decision to keep the program a "close hold." Gonzales stated that the President made the decision on all requests to "read in" any non-operational persons, including DOJ officials.8
DOJ Office of Legal Counsel (OLC) Deputy Assistant Attorney General John Yoo was responsible for drafting the first series of legal memoranda supporting the program.9 Yoo was the only OLC official "read into" the PSP from the program's inception in October 2001 until Yoo left DOJ in May 2003.10 The only other non-FBI DOJ officials read into the program during this period were Attorney General Ashcroft and Counsel for Intelligence Policy James Baker.
Jay Bybee was OLC Assistant Attorney General from November 2001 through March 2003, and Yoo's supervisor. Bybee told the DOJ OIG that in early July 2001, before he was confirmed, he learned that Yoo was already under consideration for one of OLC Deputy Assistant Attorney General slots. Bybee said he was "enthusiastic" about Yoo and later agreed to Yoo's request to be assigned to the "national security portfolio" because Y00 had more national security experience than any of the other OLC deputies.
However, Bybee stated he was never read into the PSP and could shed no further light on how Yoo came to draft the OLC opinions on the program. He said that Yoo had responsibility for supervising the drafting of opinions related to other national security issues when the September 11 attacks occurred.11 Bybee described Yoo as "articulate and brilliant," and said he had a "golden resume" and was "very well connected" with officials in the White House. Bybee said that from these connections, in addition to Yoo's scholarship in the area of executive authority during wartime, it was not surprising that Yoo "became the White House's guy" on national security matters.
In September and early October 2001, Yoo prepared several preliminary opinions relating to hypothetical random domestic electronic surveillance activities, but the first OLC opinion explicitly addressing the legality of the PSP was not drafted until after the program had been formally authorized by President Bush in October 2001. Attorney General Ashcroft approved the first Presidential Authorization for the PSP as to "form and legality" on the same day that he was read into the program.
The first OLC opinion directly supporting the legality of the PSP was dated November 2, 2001, and was drafted by Yoo. As discussed in Section IV of this report, deficiencies in Yoo's memorandum identified by his successors in the Office of Legal Counsel and the Office of the Deputy Attorney General later became critical to DOJ's decision to reassess the legality of the program in 2003.
Yoo's November 2, 2001 memorandum focused almost exclusively on the activity that the President later publicly confirmed as the Terrorist Surveillance Program. Y00 acknowledged that FISA "purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence," but opined that "[s]uch a reading of FISA would be an unconstitutional infringement on the President's Article II authorities." Yoo characterized FISA as merely providing a "safe harbor for electronic surveillance," adding that it "cannot restrict the President's ability to engage in warrantless searches that protect the national security." According to Yoo, the ultimate test of whether the government may engage in warrantless electronic surveillance activities is whether such conduct is consistent with the Fourth Amendment, not whether it meets the standards of FISA. Yoo wrote that "unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area - which it has not - then the statute must be construed to avoid such a reading."12
Yoo's analysis of this point would later raise serious concerns for other officials in OLC and the Office of the Deputy Attorney General (ODAG) in late 2003 and early 2004. Among other concerns, Y00 did not address the section of FISA that creates an explicit exemption from the requirement to obtain a judicial warrant for 15 days following a congressional declaration of war. See 50 U.S.C. § 1811. Yoo's successors in OLC criticized this omission in Yoo's memorandum because they believed that by including this provision in FISA Congress arguably had demonstrated an explicit intention to restrict the government's authority to conduct electronic surveillance during wartime.
Yoo's memorandum also analyzed Fourth Amendment issues raised by the Presidential Authorizations. Yoo dismissed Fourth Amendment concerns regarding the PSP to the extent that the Authorizations applied to non-U.S. persons outside the United States. Regarding those aspects of the program that involved interception of the international communications of U.S. persons in the United States, Yoo asserted that Fourth Amendment jurisprudence allowed for searches of persons crossing the border and that interceptions of communications into or out of the United States fell within the "border crossing exception." Yoo further opined that electronic surveillance in "direct support of military operations" did not trigger constitutional rights against illegal searches and seizures, in part because the Fourth Amendment is primarily aimed at curbing law enforcement abuses.
Yoo also wrote that the activity described in the Presidential Authorizations was "reasonable" under the Fourth Amendment and therefore did not require a warrant. In support of this position, Yoo cited Supreme Court opinions upholding warrantless searches in a variety of contexts, such as drug testing of employees and sobriety checkpoints to detect drunk drivers, and in other circumstances "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." Veronia School Dist. 47J v. Acton, 515 u.S. 464, 652 (l995)(as quoted in November 2, 2001 Memorandum at 19). Yoo wrote that in these situations the government's interest was found to have outweighed the individual's privacy interest, and that in this regard "no governmental interest is more compelling than the security of the Nation." Haig v. Agee, 435 U.S. 280, 307 (1981). According to Yoo, the activity authorized by the Presidential Authorizations advanced this governmental security interest.
Yoo's legal memoranda omitted any discussion of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), a leading case on the distribution of government powers between the Executive and Legislative Branches. Justice Jackson's analysis of President Truman's Article II Commander-in-Chief authority during wartime in the Youngstown case was an important factor in OLC's subsequent reevaluation of Yoo's opinions on the legality of the PSP.
Yoo also discussed in his memoranda the legal rationale for Other Intelligence Activities authorized as part of the PSP. To the extent that particular statutes might appear to preclude these activities, Yoo concluded that "we do not believe that Congress may restrict the President's inherent constitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack."
However, as detailed in Chapter Three of the DOJ OIG report, Yoo's discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities. Yoo's factual discussion of these activities was later identified by his successors in the Office of Legal Counsel and ODAG in late 2003 as insufficient and presenting a serious impediment to recertification of the program as to form and legality.
The President continued to reauthorize the PSP periodically during late 2001 and 2002, with some modifications of the scope of the intelligence activities being authorized. In October 2002, at Attorney General Ashcroft's request, Yoo drafted another opinion concerning the PSP. This memorandum, dated October 11, 2002, reiterated the same basic analysis contained in Yoo's November 2, 2001, memorandum in support of the legality of the PSP.
As the only OLC official read into the PSP through early 2003, Yoo consulted directly with White House officials about the PSP during this period. Because the DOJ OIG was unable to interview Yoo, it could not determine the exact nature and extent of these consultations. The DOJ OIG was also unable to determine whether Attorney General Ashcroft was fully aware of the advice Y00 was providing directly to the White House about the PSP.
Former Attorney General Gonzales and former OLC Assistant Attorney• General Bybee both told the DOJ OIG that they did not know how Yoo became responsible for analyzing the legality of the PSP. Bybee told us that he was "surprised" and "a little disappointed" to learn through media accounts that Yoo had worked on the PSP without Bybee's knowledge. Bybee said that it would not be unusual for a Deputy Assistant Attorney General such as Yoo to have direct contact with the White House for the purpose of rendering legal advice, but that the OLC Assistant Attorney General must be aware of all opinions that issue from OLC. Other senior DOJ officials also criticized the assignment of a single OLC attorney to draft the legal rationale for the program. These officials noted that OLC traditionally adheres to a rigorous peer review process for all legal memoranda it issues. They also cited the importance of having the OLC Assistant Attorney General, a Senate-confirmed official accountable for the work of that office, be aware of all OLC legal memoranda.
Gonzales told the DOJ OIG that the Yoo opinions represented the legal opinion of DOJ, and that it was Ashcroft's decision as to how to satisfy his obligations as Attorney General. Gonzales told the DOJ OIG that Ashcroft complained to the White House that it was "inconvenient" not to have the Deputy Attorney General or Ashcroft's Chief of Staff read into the PSP, but Gonzales also stated that he never got the sense from Ashcroft that this affected the quality of the legal advice about the program that DOJ provided to the White House. As noted, Ashcroft declined the DOJ OIG's request for an interview. The DOJ OIG therefore was unable to determine from Ashcroft whether he sought additional DOJ read-ins to assist in the legal analysis of the program, how hard he may have pressed for these additional read-ins, or whether he believed he was receiving adequate legal advice about the program from Yoo alone during this early phase of the PSP.
3 Executive Order 12333 was amended on July 30, 2008 by Executive Order 13470. This report refers to Executive Order 12333 as it existed prior to that amendment. The Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1801, et seq. also was amended by the FISA Amendments Act of 2008. Unless otherwise indicated, this report refers to FISA as it existed prior to 2008.
4 Legal Standards for the Intelligence Community in Conducting Electronic Surveillance, Report to Congress pursuant to Fiscal Year 2000 Intelligence Authorization Act.
5 See Letter from Attorney General Alberto Gonzales to Senator Patrick Leahy, Chairman, Committee on the Judiciary (Gonzales Letter), August 1,2007.
6 Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence (December 19, 2005) (statement of Attorney General Gonzales).
7 Gonzales Letter, August 1, 2007.
8 Gonzales testified before the Senate Judiciary Committee on July 18,2006, that "[a]s with all decisions that are non-operational in terms of who has access to the program, the President of the United States makes the decisions, because this is such an important program[.]"
9 The Office of Legal Counsel (OLC) typically drafts memoranda for the Attorney General and the Counsel to the President, usually on matters involving significant legal issues or constitutional questions, and in response to legal questions raised by Executive Branch agencies. In addition, all Executive Orders proposed to be issued by the President are reviewed by the Office of Legal Counsel as to form and legality, as are other matters that require the President's formal approval.
10 The process of being "read into" a compartmented program generally entails being approved for access to particularly sensitive and restricted information about a classified program, receiving a briefing about the program, and formally acknowledging the briefing, usually by signing a nondisclosure agreement describing restrictions on the handling and use of information concerning the program.
11 As noted above, Yoo, Ashcroft, Card, and Addington declined or did not respond to the DOJ OIG's request for interviews, and the DOJ OIG does not know how Yoo came to deal directly with the White House on legal issues related to the PSP. In his book "War by Other Means," Yoo wrote that "[a]s a deputy to the assistant attorney general in charge of the office, I was a Bush Administration appointee who shared its general constitutional philosophy.... I had been hired specifically to supervise OLC's work on [foreign affairs and national security]." "War by Other Means," by John Yoo, at 19-20.
12 On March 2, 2009, DOJ released nine opinions written by OLC from 2001 through 2003 regarding "the allocation of authorities between the President and Congress in matters of war and national security" containing certain propositions that no longer reflect the views of OLC and "should not be treated as authoritative for any purpose." Memorandum for the Files from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, "Re: Status of Certain OLC Opinions Issued in the Mtermath of the Terrorist Attacks of September 11, 2001" (January 15,2009), at 1, 11. Among these opinions was a classified February 2002 memorandum written by Yoo which asserted that Congress had not included a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless surveillance activities in the national security area and that the FISA statute therefore does not apply to the President's exercise of his Commander-in-Chief authority. In Bradbury's unclassified January 15,2009, memorandum (included among those released in March 2009), Bradbury stated that this proposition "is problematic and questionable, given FISA's express references to the President's authority" and is "not supported by convincing reasoning."
|Join the GlobalSecurity.org mailing list|