Declassified Review Sheds Light on Start of Electronic Surveillance in United States
WASHTINGTON — A recently declassified report from June 29, 2009 details the rise, short comings and more of the United States mass electronic surveillance programs created by the Bush administration in the wake of the September 11 attacks.
The report states that the Presidential Surveillance Program was signed into existence on October 4, 2001. The over 700 page report contains information on the PSP which led to the NSA’s collection of telephony and metadata which became part of a national dialogue after the Edward Snowden leaks.
The PSP required President George W. Bush and the Attorney General to resign the parameters of the program each 30 to 90 days. Originally the program did not require any oversight by the AG but was later added to make the program not “look like a rogue operation,” according to a Department of Justice employee who spoke with the OIG.
When Bush resigned the PSP on November 4, 2001 he extended PSP powers to allow agencies such as the CIA, FBI and NSA to collect telephony and internet metadata. The legal authority behind the program and the man who wrote the legal memorandums was the then Deputy Assistant U.S. Attorney General in the Office of Legal Counsel, Department of Justice John Yoo.
Yoo’s legal memorandums served as the basis for the legality of the program which according to the OIG report was not even fully discussed until after the PSP was initiated.
The report also found that oversight such as the NSA Inspector General, were not brought in until a year after the programs implementation. Between October 25, 2001 and January 17, 2007, select members of congress, including Nancy Pelosi, were briefed on the program but never objected, according to the report.
The FBI also expressed doubts about the programs legality, with members of the organization threatening to quit at certain points.
Lack of oversight continued and DoJ attorneys with experience in terrorism were not even brought into the PSP until 2004, the report stated. DoJ officials also urged the White House multiple times about the legality of the PSP and the AG himself stated his doubts.
The report states that the “NSA’s First Attempt to obtain FISA authority… failed” in September of 2002. The report explains that the NSA attempted to obtain FISA approval for surveillance of “internet and electronic wire communications” “using the standard process for seeking authority on foreign powers and foreign agents.” The heavily redacted paragraph also states that the NSA submitted a “Memorandum of Justification,” presumably to the FISA court.
An earlier paragraph in the report states that “In January 2002, senior NSA leaders still thought that neither the FISA court order process nor the infrastructure associated with FISA collection was suited to large numbers of targets”, suggesting that the failed September 2002 FISA request proposed a change to the way that targets of surveillance were approved. The President’s Surveillance Program included the mass seizure and copying of electronic communications for subsequent processing and review–a fundamental shift from the wiretapping paradigm detailed in the original Foreign Intelligence Surveillance Act.
The report does not indicate that any attempts to modify the program or resubmit for FISA approval occurred between 2002 and 2007 (after the New York Times’ delayed publication on the President’s Surveillance Program). It appears that the NSA and executive branch made a cursory attempt to involve the judicial branch in any substantive review one the immediate chaos following 9/11, then decided to embrace the legal gray area created by John Yoo’s legal memos without judicial review.
An attorney brought in after Yoo’s resignation found he left out details about FISA that would have pertained to the PSP.
The report is over 700 pages and reporters at the North Star Post are continuing to dissect and process the information within it and will provide updates as more information is obtained.