On Friday, an unclassified summary (pdf) of classified reports from five federal inspectors general concerning the “President’s Surveillance Program” was released. This report was mandated by the FISA Amendments Act passed last year (more on that below). Disappointingly, this report reveals little new information about the “unprecedented collection activities” by the federal government, including the scope and legal analyses supporting the programs.
In December 2005, the New York Times revealed the Bush Administration’s warrantless wiretapping program. Created shortly after Sept. 11, 2001, in this program the National Security Agency eavesdropped on international phone calls, e-mails and faxes, searching for security threats. There was considerable controversy about the “Terrorist Surveillance Program” and whether it complied with appropriate laws, such as the Foreign Intelligence Surveillance Act (FISA). Passed in 1978, FISA established a separate legal regime for “foreign intelligence” surveillance. (1968’s Title III, also called the “Wiretap Statute,” outlined the regulations for ordinary law enforcement surveillance.)
The inspectors general report that the Terrorist Surveillance Program was just one of several programs, and that “other intelligence activities” remain classified. In their review, the inspectors general called all of these programs collective the “President’s Surveillance Program.” These inspectors general represent the departments of Defense and Justice, CIA, NSA and the Director of National Intelligence.
They interviewed more than 200 current and former government employees, but several key individuals refused to be interviewed including: “Counsel to the Vice President David Addington, White House Chief of Staff Andrew Card, Attorney General John Ashcroft, DOJ Office of Legal Counsel Deputy Assistant Attorney General John Yoo, and former Director of Central Intelligence George Tenet.”
Some important points made in the report:
— “It was extraordinary and inappropriate that a single DOJ attorney, John Yoo, was relied upon to conduct the initial legal assessment of the PSP, and […] the lack of oversight and review of [DOJ attorney John Yoo’s] work […] contributed to a legal analysis of the PSP that at a minimum was factually flawed,” said the Department of Justice’s Inspector General.
— Former Attorney General Alberto Gonzales’s Congressional testimony concerning the warrantless wiretapping program “was confusing, inaccurate, and had the effect of misleading those who were not knowledgeable about the program.”
— Data collected under the domestic surveillance programs might have tainted terrorism prosecutions, and the Department of Justice might have or might still be violating criminal procedures by failing to turn over relevant information to defendants.
— And, the inspectors general report that, though Bush administration officials call the surveillance programs “critical” and “extremely valuable,” there is no evidence to support these claims. The inspectors general report that the President’s Surveillance Program “played a limited role in the FBI’s overall counterterrorism efforts,” officials in intelligence community “had difficulty citing specific instances where PSP had directly contributed to counterterrorism successes,” and “most PSP leads were determined not to have any connection to terrorists.”
Shortly after the warrantless wiretapping program was revealed, FBI officials told the New York Times that the NSA was sending them streams of data and “virtually all of them, current and former officials say, led to dead ends or innocent Americans.” The NSA “was collecting much of the data by eavesdropping on some Americans’ international communications and conducting computer searches of foreign-related phone and Internet traffic,” and flooding the FBI with this data. Some law enforcement and counterterrorism officials who knew of the program told the New York Times that torrent “diverted agents from counterterrorism work they viewed as more productive.”
Despite the privacy, security and legitimacy questions surrounding the domestic surveillance activities, in 2008, the FISA Amendments Act greatly expanded the secret surveillance powers of the federal government. The Act also conferred retroactive immunity upon the telecommunications companies that participated in the NSA’s warrantless wiretapping program. Before passing the legislation, senators voted against several amendments that would have modified or removed the telecom immunity provision.
Last year, Privacy Lives joined a number of groups in a letter (pdf) to the U.S. Senate opposing the FISA Amendments Act. We said: “The bill would threaten Americans’ privacy by doing too little to restore judicial review and failing to include other reasonable civil liberties protection. The administration has not made a persuasive case that these sweeping new powers are needed or that existing authorities are inadequate to ensure the effectiveness of U.S. intelligence-gathering activities.” This inspectors general report does not make the argument that broad surveillance powers are necessary or effective.
The inspectors general conclude: “Finally, the collection activities pursued under the PSP, and under FISA following the PSP’s transition to that authority, involved unprecedented collection activities. We believe the retention and use by [intelligence community] organizations of information collected under the PSP and FISA should be carefully monitored.” However, I believe that there should be much more than monitoring, but rather there should be a public, impartial Congressional investigation into these “unprecedented” and still unknown surveillance activities.