Wednesday, August 12, 2009

Belated Opinion on the Inspector General's Report -- Despair

At last I have gotten to a rather belated review of the Inspector General's Report on warrantless surveillance under the Bush Administration. Although the existence of the Report seemed a small ray of hope, the contents move me distinctly in the direction of despair.

The most obvious point is that the Report does not explain what the program in question was (that remains classified), but it does make clear that the publicly acknowledged "Terrorist Surveillance Program" (TSP) was only a small part of what was going on. It identifies the total illegal wiretapping as the President's Surveillance Program (PSP), of which the TSP was only a part. Information was collected by the NSA and distributed to various other agencies, mostly to people who were unaware of the source of the leads they were given. An internal NSA audit of the surveillance found no evidence of intentional misuse. (p. 13).

Surveillance activities were intensely secret. John Yoo was the only member of the Office of Legal Counsel (OLC) to be aware of the program. His memo approving warrantless surveillance, in addition to be very dubious in its interpretation of the laws, factually misrepresented what was going on, arguing for the legality of the activities that constituted the TSP and largely ignoring the other illegal wiretaps. Attorney General John Ashcroft approved the program based on Yoo's memo, not realizing that it misrepresented the full scope of warrantless surveillance. The top four members of Congress and later the Gang of Eight were briefed on the program, as was the presiding judge of the FISA court. The report strongly hints that material obtained through warrantless surveillance was sometimes used to apply for FISA warrants. (p. 18).

The 2004 Justice Department revolt began after John Yoo left and his replacement began to realize what was being approved. John Ashcroft became alarmed when he realized what he had been authorizing. James Comey and Jack Goldsmith joined in the revolt. Their objections appear not to have been rooted in the activities themselves, which they might have approved of, but in the absence of legal authority for them. In other words, they appear to have believed that the law as it stood was unreasonable restrictive, but must still be obeyed. White House officials then met with the Congressional Gang of Eight to discuss the situation, with no Justice Department officials present. Alberto Gonzales claimed the Eight agreed the surveillance must continue. The Democrats in the group denied it. (p. 23).

President Bush, who up till then had been authorizing warrantless surveillance every 45 days based on Yoo's rather vague assurances, became more explicit when the Justice Department refused to cooperate. He signed an authorization stating that, as Commander-in-Chief, he had the authority to authorize such wiretapping despite the Justice Departments disapproval and despite any statute to the contrary. He also expressly claimed authority to do all the things that the Yoo memo had discreetly concealed. It was at this point that Justice Department officials began threatening mass resignations. The parties eventually reached an accommodation in which the President modified or discontinued some of the more offensive actions, and the OLC justified the remaining ones under the Authorization to Use Military Force (AUFM). The illegal warrantless wiretaps were apparently discontinued when they were legalized under the modified version of FISA in 2007.

I suppose we can take at least some comfort in knowing that the warrantless surveillance, although illegal, was at least directed toward legitimate security concerns and not deliberately misused. Still, the report leaves a great many obvious and disturbing questions unanswered.

What was the President's Surveillance Program? The Report does not discuss this, since it is classified. It does drop a few hints, though. The officially acknowledged "Terrorist Surveillance Program" involved "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." (p. 1) By contrast, according to NSA Director Michael Hayden, unacknowledged 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." (p. 15). What's the difference? The report offers one tiny clue, quoting Hayden as saying the activities were "more aggressive" than FISA allowed, but "less intrusive" because the period of time was much shorter than authorized by a FISA warrant. This may be a confirmation of reports that in fact the NSA cast a broad net over international calls, filtering for suspicious sounding conversations, first by computer and later by human listeners.

How useful was the program? The Inspector General cannot even guess. Director Hayden vouched that it was extremely useful, and that if it had been in place before 9-11, it would have caught two of the hijackers. (p. 31). Hayden, as director of the NSA is perhaps in the best position to know, but also has the strongest interest in defending the program. Other intelligence agencies found the program to be useful, but only one tool among many, and were unable to quantify its value. The above report alleges that about 5,000 international calls were listened into without a warrant, yielding probable cause to apply for a warrant in about 10 cases a year.

What did Congressional leaders (and the presiding FISA judge) know and when did they know it? Talking to Congressional leaders (and FISA judges) was outside the Inspector General's mandate. Hayden boasted that he briefed Congressional leaders on surveillance 49 times, including 17 times before the program was exposed in the press, and that no one objected. (p. 16). Alberto Gonzales reported that during the Justice Department revolt, the Gang of Eight insisted that program must go on, a claim that Democrats in the group dispute. But how candid was the Administration with leaders of Congress (or FISC)? The Report establishes that John Yoo was the only member of the OLC aware of the program, that his memo factually misrepresented it, and that John Ashcroft, Bush's own Attorney General relied on this inaccurate memo and did not know until 2004 what he was authorizing. So, was an Administration that deceived is own Attorney General about what it was up to completely candid with leaders of Congress (and the presiding FISA judge)? Let's just say it's possible. I can't disprove it. But it seems unlikely.*

How far was the program scaled back after the 2004 revolt? This, too, is unclear. The Report says only that the President agreed to "modify certain PSP intelligence-gathering activities and to discontinue certain Other Intelligence Activities that DOJ believed were legally unsupported." (p. 29). It does not say whether the activities that continued were limited to the publicly acknowledged Terrorist Surveillance Program, or were more extensive. Either way, the continued activitied continued to violate FISA.

How many once-illegal activities are now authorized by the broadening of FISA in 2007? Once again, this is unclear, although the report does say that illegal surveillance ceased after the law was broadened.
Certain activities that were originally authorized as part of the PSP have subsequently been authorized under orders issued by the Foreign Intelligence
Surveillance Court (FISC). The activities transitioned in this manner included the international communications that the President publicly described as the "Terrorist Surveillance Program." . . . [The Protect America Act] gave even broader authority to intercept international communications than did the provisions of the Presidential Authorizations governing the activities that the President acknowledged in December 2005 as the Terrorist Surveillance Program.

pp. 30-31, emphasis added. Although this is extremely vague, it seems to suggest that the publicly acknowledged Terrorist Surveillance Program was merely one part of the activities first authorized by FISC and later by Congress. Just as illegal activities in addition to the TSP appear to have continued after the 2004 revolt, such activities appear to have been legalized in 2007. Not clear is whether whatever sparked the 2004 is also now legal.

Conclusion: The Report ends by concluding intelligence collection under the "PSP" and now under FISA "following the PSP's transition to that authority" involved "unprecedented collection activities," and that the retention and use of such activities should be carefully monitored. (p. 38). This conclusion makes clear what was not made clear before -- that what has now been legalized is not limited to the rather modest activities publicly acknowledged as the TSP, but involved an gathering an "unprecedented" and dangerous amount of data that must be "carefully monitored."

To this I would add my own conclusion. Congress should never simply have allowed the Administration to set its own law. Instead, the Intelligence Committee should have conducted a thorough (and, if necessary, secret) investigation to determine what was being gathered, how useful it was, and to what extent it could be gathered from other sources. The main complaint was not that FISA warrants were too difficult to obtain, but that they were too slow and "cumbersome" and a more "agile" approach was needed. The possibility of streamlining the FISA process or allowing more days before a warrant was required should have been considered. And if the program was truly necessary but gathered a dangerous amount of information, appropriate safeguards should have been enacted. And here here we are now, stuck with whatever dangerous and originally illegal surveillance program the Bush Administration saw fit do, and no political will or interest in changing it.

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*And was a program so illegal that the upper echelon of the Bush Department of Justice, men like Ashcroft, Comey and Goldsmith -- no civil libertarians they -- nonetheless unanimously supported by both parties in the Congressional leadership? That actually seems more likely than I care to admit.

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