Title III of the Foreign Intelligence Surveillance Act of 2008 required the Inspector Generals of the elements of the intelligence community that participated in the President's Surveillance Program (PSP) to conduct a comprehensive review of the program. Five Inspector Generals participated in the review. These were the Inspector Generals of the Department of Justice, the CIA, the National Security Agency, the Department of Defense and the Office of the Director of National Intelligence. Their 43 page report was released today. A copy of their report is available for download here (pdf).
The report makes for chilling reading describing a program that was highly secretive, controversial even within the Bush Administration and of limited if not dubious intelligence value. The report refers to "unprecedented collection activities" by five US intelligence agencies under an executive order signed by President George W. Bush immediately after the September 11, 2001, terror attacks on New York and Washington.
From Reuters:
The Bush administration built an unprecedented surveillance operation to pull in mountains of information far beyond the warrantless wiretapping previously acknowledged, a team of federal inspectors general reported Friday, questioning the legal basis for the effort but shielding almost all details on grounds they're still too secret to reveal.The report, compiled by five inspectors general, refers to "unprecedented collection activities" by U.S. intelligence agencies under an executive order signed by President George W. Bush after the Sept. 11, 2001, terror attacks.
Just what those activities involved remains classified, but the IGs pointedly say that any continued use of the secret programs must be "carefully monitored."
The report says too few relevant officials knew of the size and depth of the program, let alone signed off on it. They particularly criticize John Yoo, a deputy assistant attorney general who wrote legal memos undergirding the policy. His boss, Attorney General John Ashcroft, was not aware until March 2004 of the exact nature of the intelligence operations beyond wiretapping that he had been approving for the previous two and a half years, the report says.
Most of the intelligence leads generated under what was known as the "President's Surveillance Program" did not have any connection to terrorism, the report said. But FBI agents told the authors that the "mere possibility of the leads producing useful information made investigating the leads worthwhile."
The inspectors general interviewed more than 200 people inside and outside the government, but five former Bush administration officials refused to be questioned. They were Ashcroft, Yoo, former CIA Director George Tenet, former White House Chief of Staff Andrew Card and David Addington, an aide to former Vice President Dick Cheney.
According to the report, Addington could personally decide who in the administration was "read into" -- allowed access to -- the classified program.
The only piece of the intelligence-gathering operation acknowledged by the Bush White House was the wiretapping-without-warrants effort. The administration admitted in 2005 that it had allowed the National Security Agency to intercept international communications that passed through U.S. cables without seeking court orders.
Although the report documents Bush administration policies, its fallout could be a problem for the Obama administration if it inherited any or all of the still-classified operations.
Bush started the warrantless wiretapping program under the authority of a secret court in 2006, and Congress authorized most of the intercepts in a 2008 electronic surveillance law. The fate of the remaining and still classified aspects of the wider surveillance program is not clear from the report.
I am still reading the report but one thing is clear - CIA's involvement in the program is deeper than has been reported previously. Furthermore the authority and control that John Yoo and David Addington had over the PSP was extraordinary. Access under the PSP to the warrantless eavesdropping component of the program was strictly controlled that only three Justice Department officials were aware of the plan and its scope. These were the Attorney General David Ashcroft, his deputy and John Yoo.
Marc Ambinder of The Atlantic has a few other highlights or perhaps more aptly put lowlights:
* The DOJ's inspector general found AG Gonzales's congressional testimony about the TSP "incomplete and confusing" and "inaccurate," though not intentionally misleading. (pp. 36) * An internal Justice Department investigation urges the Attorney General to "carefully consider whether to re-examine past cases" where PSP information was used to bring about the arrest or conviction of a terrorist. (pp. 17). This recommendation could have ramifications for current prosecutions.* In a White House meeting after deputy A.G. James Comey had voiced concerns about the legality of some aspects of the PSP, Vice President Cheney suggested that the President reauthorize the program without the consent of the Department of Justice. This outraged FBI director Robert Mueller, who told Cheney that he couldn't agree to that. (pp. 22-23). The report details how President Bush re certified the program anyway, leading to resignation threats from senior Justice Department officials. (pp. 27). Comey met with Bush in a private meeting shortly thereafter, and Bush told Comey that he had not been aware of the substance of some of Comey's objections.
* The NSA claims to have briefed the "Gang of 8" on the program very shortly after its inception in 2001, and said it conducted 16 congressional briefings before the program was disclosed in the New York Times in 2005. The NSA insists that no member of Congress objected to the program.
* The NSA and FBI generally assess the program to have been "useful," one of "many tools" used to instigate and conduct terrorism investigations. The compartmentalized nature of the program was detrimental to the program's ultimate success. (pp 32.) The CIA'
* Former Attorney General Alberto Gonzales acknowledged that the regular Attorney General review of the program was undertaken for "purely political" purposes; the NSA was jittery about something so novel, and higher-level sign off helped sooth nerves. (pp. 11)
** No one seems to know why John Yoo was, for two years, the ONLY Justice Department official (aside from the AG and a deputy) who was "read in" to the program. Yoo's boss, Jay Bybee, told the IGs he had no idea why Yoo was given access to the program and no idea why Yoo was the one to write the justifying legal opinions. (pp. 15-18). Indeed, it's not clear to the IGs that Attorney General Ashcroft knew that Yoo was acting as the department's legal voice on the PSP.
It should come as no surprise that both John Yoo and David Addington both refused to cooperate with this report.
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