Unclassified Report On The President's Surveillance Program
III. IMPLEMENTATION OF THE PRESIDENT'S SURVEILLANCE PROGRAM
A. NSA Intelligence Activities under the PSP
According to the NSA OIG report, the first Presidential Authorization was the product of discussions between former NSA Director Hayden and White House officials. Hayden also consulted with NSA senior technical experts and experienced attorneys from the NSA's Office of General Counsel. While he consulted with NSA personnel in identifying critical intelligence 14 gaps, only Hayden knew about and participated in the development of the Presidential Authorization by serving as a technical advisor. After the Authorization was signed, NSA attorneys supported the lawfulness of the resulting program. Hayden stated that DOJ did not participate in his early meetings about the NSA's collection activities. As noted, the Attorney General was read into the program on the same day he signed the first Authorization as to form and legality.
When the NSA received the first Presidential Authorization, Hayden noted that he was assured by the signature of the Attorney General that the program was iawful and had been reviewed by the White House and DOJ.
After Hayden received the first Authorization, he assembled 80 to 90 people in a conference room and explained what the President had authorized. Hayden said: "We're going to do exactly what he said and not one photon or electron more." The NSA's purpose in implementing the PSP was to collect foreign intelligence. According to Hayden, the activities were targeted and focused with the purpose of "hot pursuit" of communications entering or leaving the United States involving individuals believed to be associated with al-Qa'ida, not to intercept conversations between people in the United States. The intercepted communications had to be reasonably believed to be al-Qa'ida communications, one end of which was in the United States.
According to the NSA OIG, the PSP had standards for targeting al-Qa'ida. There were several layers of review, starting with an NSA management review, and the NSA OIG conducted a review of target folders to ensure compliance with program standards and additional management controls.13 A sample of target folders was tested to determine whether targeting decisions were adequately supported. Any ambiguities were discussed with analysts and adequately resolved. The NSA OIG reported that the NSA's conduct of the PSP was reviewed and monitored by the NSA Office of General Counsel and the NSA OIG. According to the NSA OIG, NSA employees involved in the program received tailored training and their work was overseen to ensure that all activities were consistent with the letter and intent of the Authorization and with the protection of civil liberties. The NSA OIG report concluded that it found no evidence of intentional misuse of the PSP.
Hayden stated that although he understood that the PSP activities were more aggressive than those available traditionally under FISA, he believed that the PSP was less intrusive because the period of time in which collection was conducted was, in most cases, far less than was authorized in a typical FISC order. Additionally, the sole purpose of the overall PSP was to detect and prevent terrorism against the United States. According to Hayden, the program was designed to provide the NSA with the operational agility to cover terrorism-related targets.
B. Access to the PSP
1. Executive Branch Personnel
Knowledge of the PSP was strictly controlled and limited at the express direction of the White House. Further information about the number of Executive Branch employees who were read into the program is provided in the classified report.
As discussed below and in more detail in the DOJ OIG report, the DOJ OIG found that overly restrictive limitations on the number of DOJ personnel read into the program created several problems. Among other things, these limitations prevented DOJ from adequately reviewing the PSP's legality during the earliest phase of the program's operation. The subsequent identification of what DOJ officials perceived to be serious factual and legal flaws in Yoo's early legal analysis ofthe PSP also precipitated a major dispute between DOJ and the White House over reauthorization of the program that nearly led to the resignations of several senior DOJ and FBI officials in March 2004. In addition, the ODNI OIG found that the opportunity for ODNI oversight components to participate in oversight of the PSP was limited by ODNI oversight personnel not being granted timely access to the PSP.
2. Congressional Briefings
On October 25, 2001, White House officials and Hayden conducted a briefing on the PSP for the Chairman and Ranking Member of the House Permanent Select Committee on Intelligence, Nancy P. Pelosi and Porter J. Goss; and the Chairman and Vice Chairman of the Senate Select Committee on Intelligence, D. Robert Graham and Richard J. Shelby. According to the NSA, between October 25, 2001, and January 17, 2007, Hayden and current NSA Director Keith Alexander, sometimes supported by other NSA personnel, conducted approximately 49 briefings to members of Congress and their staff, 17 of which took place before the December 2005 media reports regarding what was called the "Terrorist Surveillance Program." Hayden told us that during the many PSP briefings to members of Congress no one ever suggested that NSA should stop the program.
3. Foreign Intelligence Surveillance Court Briefings
From January 2002 to January 2006, only FISC Presiding Judge Royce Lamberth, followed by Presiding Judge Colleen Kollar-Kotelly, were read into the PSP. The classified report and the full DOJ OIG report describe the circumstances under which the Presiding Judge was notified of the existence of the PSP and read into the program, and the measures subsequently taken to address the effect of the PSP on the government's relationship with the FISC.
4. FBI Participation in the PSP
The DOJ OIG report also describes the FBI's participation in the PSP, particularly as a recipient of intelligence collected under the program. The DOJ OIG addresses the challenges the FBI faced in disseminating this information to FBI field offices for investigation without revealing the source of the information, as well as the efforts the FBI made to improve cooperation with the NSA to enhance the usefulness of PSP-derived information to FBI agents. Further details about these topics are classified and therefore cannot be discussed here. The DOJ OIG generally found that the FBI implemented reasonable procedures for expeditiously disseminating PSP-derived information to FBI field offices for investigation while protecting the sources and methods by which the information was obtained. However, the DOJ OIG also found that the highly compartmented nature of the PSP created obstacles for the FBI's process for handling program-derived information and understandably frustrated FBI agents responsible for investigating the information.
5. CIA Participation in the PSP
The CIA OIG report describes the CIA's participation in the PSP. CIA officials, as PSP consumers, requested information from the program and utilized this information in their analyses. The CIA OIG found that CIA officials appeared to have had an adequate understanding of the justification needed to request PSP-derived information, and that CIA requests were adequately justified.
Senior CIA officials, including former Directors of Central Intelligence (DCI) Hayden and Goss, and former Acting Director McLaughlin, stated that the PSP addressed a gap in intelligence collection. Following the terrorist attacks on September 11, 2001, there was concern that additional acts of terrorism would be perpetrated by terrorist cells already inside the United States. Senior IC officials believed that providing IC analysts access to increased signals intelligence could lead to the discovery of terrorists in the U.S. and planned terrorist attacks. However, collection of such communications required authorization under FISA, and there was widespread belief among senior IC and CIA officials that the process for obtaining FISA authorization was too cumbersome and time consuming to address the current threat. CIA officials stated that FISA required extensive paperwork and high-level reviews and approvals by the DCI and the Attorney General and the FISC did not always approve FISA applications in a timely manner. Hayden and other senior IC officials also told the CIA OIG that, at the time that the PSP operated, Congress had not updated FISA since its 1978 enactment to reflect changes in communication technologies.
6. ODNI Participation in the PSP
PSP-derived information was closely held within the ODNI and was made available to a limited number of NCTC analysts for review or, if appropriate, use in preparing NCTC analytical products. Generally, the NCTC analysts approved for PSP access received PSP-derived information in the form of NSA intelligence products. NCTC analysts told the ODNI OIG that they generally obtained access to the PSP-derived information from a secure IC database or directly from an NSA representative. NCTC analysts told the ODNI OIG that the PSP-derived information was subject to stringent security protections. The NCTC analysts said that they received training regarding the proper handling of IC signals intelligence, and they reported that they handled all such information, including PSP-derived information, consistent with standard rules and procedures.
C. Impact of PSP-Derived Information on the FISA Process
Chapters Three and Six of the DOJ OIG report describe how DOJ and the FISC addressed the impact PSP-derived information had on the FISA process. The DOJ OIG concluded that it was foreseeable that such information might impact the process and that the initial delay in reading anyone from DOJ's Office of Intelligence Policy and Review (OIPR) or the FISC into the PSP unnecessarily jeopardized DOJ's relationship with the Court. In addition, overly restrictive limitations on the number of OIPR attorneys and FISC judges who were read into the program created significant and avoidable problems of workload imbalance in the functioning both of OIPR and the FISC. The DOJ OIG concluded that once the PSP began to affect the functioning of the FISA process, the number of OIPR staff and FISC judges read into the PSP to manage the program's impact should have increased.
D. Discovery Issues
The DOJ OIG reviewed DOJ's handling of PSP information with respect to its discovery obligations in international terrorism prosecutions. DOJ was aware as early as 2002 that information collected under the PSP could have implications for DOJ's litigation responsibilities under Federal 18 " Rule of Criminal Procedure Rule 16 and Brady v. Maryland, 373 U.S. 83 (1963).
Analysis of this discovery issue was first assigned to OLC Deputy Assistant Attorney General Yoo in 2003. However, no DOJ attorneys with terrorism prosecution responsibilities were read into the PSP until mid-2004, and as a result DOJ continued to lack the advice of attorneys who were best equipped to identify and examine the discovery issues in connection with the PSP.
Since then, DOJ has taken steps to address discovery issues with respect to the PSP, which is discussed in the DOJ OIG classified report. Based upon its review of DOJ's handling of these issues, the DOJ OIG recommends that DOJ assess its discovery obligations regarding PSP-derived information, if any, in international terrorism prosecutions. The DOJ OIG also recommends that DOJ carefully consider whether it must re-examine past cases to see whether potentially discoverable but undisclosed Rule 16 or Brady material was collected under the PSP, and take appropriate steps to ensure that it has complied with its discovery obligations in such cases. In addition, the DOJ OIG recommends that DOJ implement a procedure to identify PSP-derived information, if any, that may be associated with international terrorism cases currently pending or likely to be brought in the future and evaluate whether such information should be disclosed in light of the government's discovery obligations under Rule 16 and Brady.
13 Internal control, or management control, comprises the plans, methods, and procedures used to meet missions, goals, and objectives. It provides reasonable assurance that an entity is effective and efficient in its operations, reliable in its reporting, and compliant with applicable laws and regulations.
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