type: other

jurisdiction: US

text: b'\x0c 10 July 2009\n Preface\n (U) Title III of the Foreign Intelligence Surveillance Act\n Amendments Act of 2008 required the Inspectors General (IGs) of\n the elements of the Intelligence Community that participated in\n the President\'s Surveillance Program (PSP) to conduct a\n comprehensive review of the program. The IGs of the Department\n of Justice, the Department of Defense, the Central Intelligence\n Agency, the National Security Agency, and the Office of the\n Director of National Intelligence participated in the review\n required under the Act. The Act required the IGs to submit a\n comprehensive report on the review to the Senate Select\n Committee on Intelligence, the Senate Committee on the\n Judiciary, the House Permanent Select Committee on Intelligence,\n and the House Committee on the Judiciary.\n\n (U) In response to Title III requirements, we have\n prepared this unclassified report on the PSP, which summarizes\n the collective results of our reviews. Because many aspects of\n the PSP remain classified, and in order to provide the\n Congressional committees the complete results of our reviews,\n we also prepared, and have bound separately, a classified\n report on the PSP. The individual reports detailing the\n results of each IG\'s review are annexes to the classified\n report .\n\n\nL\n Co,J)_~. \xc2\xa3b./I2W\no\n Glenn A. Fine\n Inspector General\n Department of Justice\n Gordon S. Heddell\n Acting Inspector General\n Department of Defense\nr\n\n 9rlnl W tt&J1;:J\n Patricia A. LeWiS\n Acting Inspector General\n Ge~ f20j0JLc(\n Inspector General\n Central Intelligence Agency National Security Agency\n\n\n\n\n ROkh:.~\n Inspector General\n ~ \n\n Office of the Director of\n National Intelligence\n\x0c UNCLASSIFIED REPORT ON THE \n\n PRESIDENT\'S SURVEILLANCE PROGRAM \n\n\nI. \t INTRODUCTION ................................................................................ 1 \n\n A. \t Scope of Report........................................................................ 2 \n\n B. \t Methodology of this Review ...................................................... 3 \n\n\nII. \t INCEPTION OF THE PRESIDENT\'S SURVEILLANCE PROGRAM \n\n (PSP) ................................................................................................. 4 \n\n A. \t Expansion of NSA\'s Collection Activities ................................... 4 \n\n B. \t Presidential Authorization of the PSP ....................................... 5 \n\n C. \t Threat Assessment Memoranda Supporting Authorization of \n\n the PSP .................................................................................... 7 \n\n D. \t Department of Justice Office of Legal Counsel\'s Early \n\n Memoranda Supporting the Legality of the PSP ...................... 10 \n\n\nIII. \t IMPLEMENTATION OF THE PRESIDENT\'S SURVEILLANCE \n\n PROGRAM ...................................................................................... 14 \n\n A. \t NSA Intelligence Activities under the PSP ............................... 14 \n\n B. \t Access to the PSP ................................................................... 16 \n\n 1. \t Executive Branch Personnel ......................................... 16 \n\n 2. \t Congressional Briefings ................................................ 16 \n\n 3. \t Foreign Intelligence Surveillance Court Briefings .......... 17 \n\n 4. \t FBI Participation in the PSP ......................................... 17 \n\n 5. \t CIA Participation in the PSP ......................................... 17 \n\n 6. \t ODNI Participation in the PSP ...................................... 18 \n\n C. \t Impact of PSP-Derived Information on the FISA Process ......... 18 \n\n D. \t Discovery Issues .................................................................... 18 \n\n\nIV. \t LEGAL REASSESSMENT OF THE PRESIDENT\'S SURVEILLANCE \n\n PROGRAM ...................................................................................... 19 \n\n A. \t Justice Department Attorneys Become Concerned About the \n\n Legality of Some Activities under the PSP ............................... 19 \n\n B. \t OLC Begins Developing a New Legal Analysis for the PSP ....... 20 \n\n C. \t DOJ Officials Convey Concerns to the White House ............... 20 \n\n D. \t Conflict Between DOJ and the White House ........................... 21 \n\n E. \t White House Counsel Certifies Presidential Authorization \n\n Without Department of Justice Concurrence .......................... 26 \n\n\n\n\n 1\n\x0c F. \t Department of Justice and FBI Officials Consider Resigning .. 27 \n\n G. \t White House Agrees to Modify the PSP ................................... 29 \n\n H. \t Department of Justice OIG Conclusions................................. 30 \n\n\nV. \t TRANSITION OF CERTAIN PROGRAM ACTIVITIES TO FOREIGN \n\n INTELLIGENCE SURVEILLANCE COURT ORDERS .......................... 30 \n\n\nVI. \t IMPACT OF THE PRESIDENT\'S SURVEILLANCE PROGRAM ON \n\n INTELLIGENCE COMMUNITY COUNTERTERRORISM EFFORTS ..... 31 \n\n A. \t NSA\'s Assessment of the PSP ................................................. 31 \n\n B. \t DOJ OIG\'s Assessment of the PSP.......................................... 32 \n\n C. \t CIA OIG\'s Assessment of the PSP ........................................... 33 \n\n D. \t ODNI\'s Assessment of the PSP ............................................... 35 \n\n E. \t Intelligence Community Activities Supported by the PSP ........ 36 \n\n\nVII. \t PUBLIC STATEMENTS ABOUT THE PRESIDENT\'S SURVEILLANCE \n\n PROGRAM ...................................................................................... 36 \n\n\nVIII. \t CONCLUSION ................................................................................. 37 \n\n\n\n\n\n 11\n\x0c UNCLASSIFIED REPORT ON THE \n\n PRESIDENT\'S SURVEILLANCE PROGRAM \n\n\n\nI. INTRODUCTION \n\n\n In the weeks following the terrorist attacks of September 11, 2001, the\nPresident authorized the National Security Agency (NSA) to conduct a\nclassified program to detect and prevent further attacks in the United\nStates. As part of the NSA\'s classified program, several different intelligence\nactivities were authorized in Presidential Authorizations, and the details of\nthese activities changed over time. The program was reauthorized by the\nPresident approximately every 45 days, with certain modifications.\nCollectively, the activities carried out under these Authorizations are\nreferred to as the "President\'s Surveillance Program" or "PSP."l\n\n One of the activities authorized as part of the PSP was the\ninterception of the content of communications into and out of the United\nStates where there was a reasonable basis to conclude that one party to the\ncommunication was a member of al-Qa\'ida or related terrorist organizations.\nThis aspect of the PSP was publicly acknowledged and described by the\nPresident, the Attorney General, and other Administration officials\nbeginning in December 2005 following a series of articles published in The\nNew York Times. The Attorney General subsequently publicly acknowledged\nthe fact that other intelligence activities were also authorized under the\nsame Presidential Authorization, but the details of those activities remain\nclassified.\n\n The President and other Administration officials labeled the publicly\ndisclosed interception of the content of certain international\ncommunications by the NSA as the "Terrorist Surveillance Program."\n\n Several different agencies had roles in the PSP. At the request of the\nWhite House, the NSA was involved in providing the technical expertise\nnecessary to create the program. The NSA also was responsible for\nconducting the actual collection of information under the PSP and\n\n 1 In Title III of the Foreign Intelligence Surveillance Act Amendments Act of 2008\n(FISA Amendments Act), the President\'s Surveillance Program is defined as\n the intelligence activity involvipg communications that was authorized by the\n President during the period beginning on September 11,2001, and ending\n on January 17,2007, including the program referred to by the President in a\n radio address on December 17, 2005 (commonly known as the Terrorist\n Surveillance Program).\nFISA Amendments Act, Title III, Sec. 301(a)(3).\n\n\n\n\n 1\n\n\x0cdisseminating intelligence reports to other agencies such as the Federal\nBureau ofInvestigation (FBI), the Central Intelligence Agency (CIA), and the\nOffice of the Director of National Intelligence (ODNI) National\nCounterterrorism Center (NCTC) for analysis and possible investigation. 2 In\naddition, the NSA Office of General Counsel and Office of the Inspector\nGeneral were responsible for reviewing and monitoring the NSA\'s PSP\noperation. With the exception of the NSA, the Department of Defense (DoD)\nhad limited involvement in the PSP.\n\n Components of the Department of Justice (DOJ) other than the FBI\nalso were involved in the program. Most significantly, DOJ\'s Office of Legal\nCounsel (OLC) provided advice to the White House and the Attorney General\non the overall legality of the PSP. In addition, DOJ\'s Office of Intelligence\nPolicy and Review (now called the Office of Intelligence in DOJ\'s National\nSecurity Division) worked with the FBI and the NSA to address the impact\nPSP-derived information had on proceedings under the Foreign Intelligence\nSurveillance Act (FISA). DOJ\'s National Security Division also handled\npotential discovery issues that may have involved PSP-related information in\ninternational terrorism prosecutions.\n\n The CIA, in addition to receiving intelligence reports as PSP\nconsumers, requested information from the program and utilized this\ninformation in its analyses. The CIA also initially prepared threat\nassessment memoranda that were used to support the periodic Presidential\nAuthorizations.\n\n Beginning in 2005, the newly-created ODNI assumed responsibility\nfor preparing these threat assessment memoranda. In addition, NCTC\nanalysts received program information for possible use in analytical\nproducts prepared for the President, senior policymakers, and other\nIntelligence Community (IC) analysts and officers.\n\n A. Scope of Report\n\n Title III of the Foreign Intelligence Surveillance Act of 1978\nAmendments Act of 2008 (FISA Amendments Act) - signed into law on\nJuly 10,2008 - required the Inspectors General of Intelligence Community\nagencies that participated in the PSP to conduct a comprehensive review of\nthe program. The review required to be conducted under the Act was to\nexamine:\n\n 2 The National Counterterrorism Center was made a subcomponent of the Office of\nthe Director of National Intelligence by the Intelligence Reform and Terrorism Prevention\nAct of 2004 and is charged with being the primary U.S. Government organization for\nanalyzing and integrating counterterrorism intelligence, except for intelligence pertaining\nexclusively to domestic terrorists and domestic counterterrorism.\n\n\n\n\n 2\n\n\x0c (A) \t all of the facts necessary to describe the\n establishment, implementation, product, and use of\n the product of the Program;\n\n (B) \t access to legal reviews of the Program and access to\n information about the Program;\n\n (C) \t communications with, and participation of,\n individuals and entities in the private sector related\n to the Program;\n\n (D) \t interaction with the Foreign Intelligence Surveillance\n Court and transition to court orders related to the\n Program; and\n\n (E) \t any other matters identified by any such Inspector\n General that would enable that Inspector General to\n complete a review of the Program, with respect to\n such Department or element.\n\n The Inspectors General (IGs) of the DoD, DOJ, CIA, NSA, and ODNI\xc2\xad\ncollectively the "PSP IG Group" - conducted the review required under the\nAct. This unclassified report summarizes the portions of the collective\nresults of the IG reviews that can be released in unclassified form. A\nseparate classified report summarizes the classified results of the individual\nIG reviews. In addition, the individual IG reports that document the results\nof each of the participating IGs\' reviews and investigations, which provide\nadditional classified details concerning the PSP and each agency\'s role in\nthe PSP, are included as attachments to the classified report.\n\n Title III of the FISA Amendments Act required that the report of any\ninvestigation of matters relating to the PSP conducted by the DOJ Office of\nProfessional Responsibility (OPR) be provided to the DOJ Inspector General,\nand that the findings and conclusions of such investigation be included in\nthe DOJ OIG review. OPR has initiated a review of whether any standards\nof professional conduct were violated in the preparation of the first series of\nlegal memoranda supporting the PSP. OPR has not completed its review.\n\n B. Methodology of this Review\n\n The PSP IG Group collectively interviewed approximately 200\ngovernment and private sector personnel as part of this review. Most of the\ninterviews were conducted separately by the individual OIGs as part of their\nagency-specific reviews, although some interviews were conducted jointly.\nAmong the interviewees were former and current senior government\nofficials, including Director of National Intelligence (DNI) John D.\nNegroponte, NSA Director Keith Alexander, and DNI Michael McConnell,\n\n\n 3\n\n\x0cNSA and CIA Director and Principal Deputy DNI (PDDNI) Michael V.\nHayden, White House Counsel and Attorney General Alberto Gonzales, FBI\nDirector Robert Mueller, and Secretary of Defense Donald Rumsfeld.\nCertain senior officials either declined or did not respond to our requests to\nbe interviewed for this review, including Counsel to the Vice President David\nAddington, White House Chief of Staff Andrew Card, Attorney General John\nAshcroft, DOJ Office of Legal Counsel Deputy Assistant Attorney General\nJohn Yoo, and former Director of Central Intelligence George Tenet.\n\n The OIGs also interviewed many agency managers and personnel,\nincluding attorneys, NSA operational personnel, FBI special agents and\nanalysts, and CIA officials and analysts who were responsible for the\nday-to-day operation of the PSP, including the legal issues associated with\nthe program.\n\n In addition to these interviews, the PSP IG Group reviewed thousands\nof documents and electronic records, including the Presidential\nAuthorizations and Threat Assessments supporting reauthorization of the\nprogram, OLC legal memoranda, contemporaneous notes and e-mails of\nvarious senior officials describing significant events during the program,\nForeign Intelligence Surveillance Court (FISC) pleadings and orders, and\ndocuments that were used to disseminate PSP-derived leads to FBI field\noffices and CIA stations for investigation and for other purposes related to\nthe PSP. Finally, there were previous NSA OIG reports and supporting\ndocumentation to use as additional sources.\n\n\nII. \t INCEPTION OF THE PRESIDENT\'S SURVEILLANCE PROGRAM\n (PSP)\n\n A. \t Expansion of NSA\'s Collection Activities\n\n Prior to September 11,2001, the Foreign Intelligence Surveillance Act\nof 1978 and Executive Order 12333 were generally viewed as the principal\ngoverning authorities for conducting electronic surveillance for national\nsecurity purposes. 3 The Foreign Intelligence Surveillance Act, 50 U.S.C.\n\xc2\xa7 1801, et seq., was enacted in 1978 to "provide legislative authorization\nand regulation for all electronic surveillance conducted within the United\nStates for foreign intelligence purposes." S. Rep. No. 95-701, at 9 (1978),\nreprinted in 1978 U.S.C.C.A.N. 3973,3977. Executive Order 12333 placed\n\n 3 Executive Order 12333 was amended on July 30,2008 by Executive Order 13470.\nThis report refers to Executive Order 12333 as it existed prior to that amendment. The\nForeign Intelligence Surveillance Act (FISA), 50 U.S.C. \xc2\xa7 1801, et seq. also was amended by\nthe FISA Amendments Act of 2008. Unless otherwise indicated, this report refers to FISA\nas it existed prior to 2008.\n\n\n\n\n 4\n\n\x0crestrictions on intelligence collection activities engaged in by Executive\nBranch agencies, including the NSA, while also seeking to foster "full and\nfree exchange of information" among these agencies. In 2000 the NSA\nreported to Congress that\n\n (U) The applicable legal standards for the collection, retention,\n or dissemination of information concerning u.s. persons reflect\n a careful balancing between the needs of the government for\n such intelligence and the protection of the rights of u.s.\n persons, consistent with the reasonableness standard of the\n Fourth Amendment, as determined by factual circumstances.\n (U) In the Foreign Intelligence Surveillance Act (FISA) and\n Executive Order (E.O.) 12333, Congress and the Executive have\n codified this balancing. (Citations omitted.)4\n\n As explained below, the PSP expanded the NSA\'s authority by allowing\nit to conduct electronic surveillance within the United States without an\norder from the FISC when certain factual conditions and legal standards\nwere met.\n\n B. Presidential Authorization of the PSP\n\n In the days immediately after September 11, 2001, the NSA used its\nexisting authorities to gather intelligence information in response to the\nterrorist attacks. When Director of Central Intelligence Tenet, on behalf of\nthe White House, asked NSA Director Hayden whether the NSA could do\nmore against terrorism, Hayden replied that nothing more could be done\nwithin existing authorities. When asked what he might do with more\nauthority, Hayden said he put together information on what was\noperationally useful and technologically feasible. This information formed\nthe basis of the PSP.\n\n Shortly thereafter, the President authorized the NSA to undertake a\nnumber of new, highly classified intelligence activities. 5 All of these\nactivities were authorized in a single Presidential Authorization that was\nperiodically reauthorized.\n\n The specific intelligence activities that were permitted by the\nPresidential Authorizations remain highly classified, except that beginning\n\n 4 Legal Standards for the Intelligence Community in Conducting Electronic\nSurveillance, Report to Congress pursuant to Fiscal Year 2000 Intelligence Authorization\nAct.\n 5 See Letter from Attorney General Alberto Gonzales to Senator Patrick Leahy,\nChairman, Committee on the Judiciary (Gonzales Letter), August 1,2007.\n\n\n\n\n 5\n\n\x0cin December 2005 the President and other Administration officials\nacknowledged that these activities included the interception without a court\norder of certain international communications where there is "a reasonable\nbasis to conclude that one party to the communication is a member of\nal-Qa\'ida, affiliated with al-Qa\'ida, or a member of an organization affiliated\nwith al-Qa\'ida."6 The President and other Administration officials referred to\nthis publicly disclosed activity as the "Terrorist Surveillance Program," a\nconvention we follow in this unclassified report. We refer to other\nintelligence activities authorized under the Presidential Authorizations as\nthe "Other Intelligence Activities." The specific details of the Other\nIntelligence Activities remain highly classified, although the Attorney\nGeneral publicly acknowledged the existence of such activities in August\n2007. 7 Together, the Terrorist Surveillance Program and the Other\nIntelligence Activities comprise the PSP.\n\n The Presidential Authorizations were issued at intervals of\napproximately every 45 days. As described in the next section, with each\nreauthorization the CIA and later the NCTC prepared an assessment of\ncurrent potential terrorist threats and a summary of intelligence gathered\nthrough the PSP and other means during the previous authorization period.\nThe Department of Justice\'s Office of Legal Counsel reviewed this\ninformation to assess whether there was "a sufficient factual basis\ndemonstrating a threat of terrorist attacks in the United States for it to\ncontinue to be reasonable under the standards of the Fourth Amendment\nfor the President to [continue] to authorize the warrantless searches\ninvolved" in the program. The Office of Legal Counsel then advised the\nAttorney General whether the constitutional standard of reasonableness had\nbeen met and whether the Presidential Authorization could be certified "as\nto form and legality." Each of the Presidential Authorizations included a\nfinding to the effect that an extraordinary emergency continued to exist, and\nthat the circumstances "constitute an urgent and compelling governmental\ninterest" justifying the activities being authorized without a court order.\n\n Each Presidential Authorization also included a requirement to\nmaintain the secrecy of the activities carried out under the program. The\nPresident also noted his intention to inform appropriate members of the\nSenate and the House of Representatives of the program "as soon as I judge\nthat it can be done consistently with national defense needs." As discussed\nin Section III.B.2. below, beginning on October 25,2001, White House\n\n\n 6 Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden,\nPrincipal Deputy Director for National Intelligence (December 19, 2005) (statement of\nAttorney General Gonzales).\n 7 Gonzales Letter, August 1, 2007.\n\n\n\n\n 6\n\n\x0cofficials and Hayden provided briefings on the PSP to members of Congress\nand their staffs.\n\n Although there was no legal requirement that the Authorizations be\ncertified by the Attorney General or other Department of Justice official,\ncurrent and former DOJ officials told us that this certification added value\nby giving the program a sense of legitimacy. Former Attorney General\nGonzales stated that the NSA was being asked to do something it had not\ndone before, and it was important to assure the NSA that the Attorney\nGeneral had approved the legality of the program. He also stated that it was\nimportant that the cooperating private sector personnel know that the\nAttorney General had approved the program. In addition, Gonzales said\nthat for "purely political considerations" the Attorney General\'s approval of\nthe program would have value "prospectively" in the event of congressional\nor inspector general reviews of the program.\n\n c. \t Threat Assessment Memoranda Supporting Authorization of\n the PSP\n\n The CIA initially prepared the threat assessment memoranda that\nwere used to support the Presidential Authorization and periodic\nreauthorizations of the PSP. The memoranda documented intelligence\nassessments of the terrorist threats to the United States and to U.S.\ninterests abroad from al-Qa\'ida and affiliated terrorist organizations. These\nassessments were prepared approximately every 45 days to correspond with\nthe President\'s Authorizations of the PSP.\n\n The Director of Central Intelligence\'s (DCI) Chief of Staff was the initial\nfocal point for preparing the threat assessment memoranda. According to\nthe former DCI Chief of Staff, he directed CIA terrorism analysts to prepare\nobjective appraisals of the current terrorist threat, focusing primarily on\nthreats to the U.S. homeland, and to document those appraisals in a\nmemorandum. Initially, the analysts who prepared the threat assessments\nwere not read into the PSP and did not know how the threat assessments\nwould be used. CIA\'s terrorism analysts drew upon all sources of\nintelligence in preparing these threat assessments.\n\n After the terrorism analysts completed their portion of the\nmemoranda, the DCI Chief of Staff added a paragraph at the end of the\nmemoranda stating that the individuals and organizations involved in global\nterrorism (and discussed in the memoranda) possessed the capability and\nintention to\' undertake further terrorist attacks within the United States.\nThe DCI Chief of Staff recalled that the paragraph was provided to him\ninitially by a senior White House official. The paragraph included the DCI\'s\nrecommendation to the President that he authorize the NSA to conduct\nsurveillance activities under the PSP. CIA Office of General Counsel (OGC)\n\n\n 7\n\n\x0cattorneys reviewed the draft threat assessment memoranda to determine\nwhether they contained sufficient threat information and a compelling case\nfor reauthorization of the PSP. If either was lacking, an OGC attorney would\nrequest that the analysts provide additional threat information or make\nrevisions to the draft memoranda.\n\n The threat assessment memoranda were then signed by the DCI.\nGeorge Tenet signed most of the threat memoranda prepared during his\ntenure as DCI. On the few occasions when he was unavailable, the Deputy\nDirector of Central Intelligence, John E. McLaughlin, signed the memoranda\non behalf of Tenet. McLaughlin also signed the memoranda in the capacity\nof Acting DCI in August and September 2004.\n\n In November 2004, Porter J. Goss became DCI and assumed\nresponsibility for signing the memoranda. There were no occasions when\nthe DCI or Acting DCI withheld their signatures from the threat assessment\nmemoranda. The memoranda were co-signed by the Secretary of Defense,\nreviewed by the Attorney General, and delivered to the White House to be\nattached to the PSP Presidential Authorizations signed by the President.\n\n Responsibility for drafting the threat assessment memoranda was\ntransferred from the CIA to the newly established Terrorist Threat\nIntegration Center (TIIC) in May 2003. This responsibility subsequently\nwas retained by TIIC\'s successor organization, the NCTC. The DCI\ncontinued to sign the threat assessment memoranda through April 2005.\n\n The ODNI was established in April 2005, and the NCTC became a\nsubcomponent of the ODNI. Once Ambassador Negroponte was confirmed\nas the DNI, senior IC officials believed that DNI Negroponte, as the\nPresident\'s new senior intelligence advisor, should make the IC\'s\nrecommendation to the President regarding the need to renew the PSP.\n\n The preparation and approval of the threat assessments became the\nODNI\'s primary role in the PSP. Beginning in April 2005, and continuing at\nspecific intervals until the program\'s termination in early 2007, ODNI\npersonnel prepared and approved threat assessments in support of the\nperiodic renewal of the PSP.\n\n The ODNI OIG found that the ODNI threat assessments were drafted\nby experienced NCTC personnel who prepared the documents in a\nmemorandum style following an established DOJ format used in earlier PSP\nrenewals. Throughout the ODNI preparation and approval process, the\nthreat assessments were also subject to varying degrees of review and\ncomment by DOJ and ODNI attorneys. Each threat assessment was\ndesigned to set forth the DNI\'s view regarding the current threat of an\nal-Qa\'ida attack against the United States and to provide the DNI\'s\n\n\n 8\n\n\x0crecommendation whether to renew the PSP. NCTC personnel involved in\npreparing the threat assessments told the ODNI OIG that the danger of a\nterrorist attack described in the threat assessments was sobering and\n"scary," resulting in the threat assessments becoming known by ODNI and\nIC personnel involved in the PSP as the "scary memos." During interviews,\nODNI personnel said they were aware the threat assessments were relied\nupon by DOJ and White House personnel as the basis for continuing the\nPSP, and understood that if a threat assessment identified a threat against\nthe United States the PSP was likely to be renewed. NCTC analysts also\nreported that on a less frequent basis they prepared a related document\nthat set forth a list of al-Qa\'ida affiliated groups that they understood were\ntargets of the PSP. The ODNI OIG found that the threat asses~ments and\nthe less frequent list of al- Qa\'ida-affiliated groups underwent the same\nODNI approval process.\n\n The ODNI OIG also determined that the ODNI threat assessments\nwere prepared using evaluated intelligence information chosen from a wide\nvariety of IC sources. ODNI personnel told the ODNI OIG that during the\nperiod when the ODNI prepared the threat assessments, the IC had access\nto fully evaluated intelligence that readily supported the ODNI assessments\nthat al-Qa\'ida terrorists remained a significant threat to the United States.\nThe ODNI OIG found that once the ODNI threat assessments were approved\nwithin NCTC and by the NCTC Director, the documents were forwarded\nthrough an established approval chain to senior ODNI personnel who\nindependently satisfied themselves that the documents were accurate,\nproperly prepared, and in the appropriate format.\n\n Once the draft threat assessments were sUbjected to this systematic\nand multi-layered management and legal review, the documents were\nprovided to the DNI or his Principal Deputy (PDDNI) for consideration and, if\nappropriate, approval. Overall, the ODNI OIG found that the ODNI process\nused to prepare and obtain approval of the threat assessments was\nstraightforward, reasonable, and consistent with the preparation of other\ndocuments requiring DNI or PDDNI approval.\n\n NCTC analysts involved in preparing the threat assessments told the\nODNI OIG that only a portion of the PSP information was ever used in the\nODNI threat assessments because other intelligence sources were available\nthat provided more timely or detailed information about the al-Qa\'ida threat\nto the United States. During interviews, the NCTC analysts noted that PSP\ninformation was only one of several valuable sources of intelligence\ninformation available to them. The NCTC analysts also told ODNI OIG staff\nthat during the period when the NCTC prepared the threat memoranda, the\nintelligence demonstrating the al-Qa\'ida threat to the United States was\noverwhelming and readily available to the IC.\n\n\n\n 9\n\n\x0c D. \t Department of Justice Office of Legal Counsel\'s Early\n Memoranda Supporting the Legality of the PSP\n\n From the outset of the program, access to the PSP for non-operational\npersonnel was tightly restricted. Former White House Counsel and Attorney\nGeneral Alberto Gonzales told the DOJ OIG that it was the President\'s\ndecision to keep the program a "close hold." Gonzales stated that the\nPresident made the decision on all requests to "read in" any non-operational\npersons, including DOJ officials. 8\n\n DOJ Office of Legal Counsel (OLC) Deputy Assistant Attorney General\nJohn Yoo was responsible for drafting the first series of legal memoranda\nsupporting the program.9 Yoo was the only OLC official "read into" the PSP\nfrom the program\'s inception in October 2001 until Yoo left DOJ in\nMay 2003.10 The only other non-FBI DOJ officials read into the program\nduring this period were Attorney General Ashcroft and Counsel for\nIntelligence Policy James Baker.\n\n Jay Bybee was OLC Assistant Attorney General from November 2001\nthrough March 2003, and Yoo\'s supervisor. Bybee told the DOJ OIG that in\nearly July 2001, before he was confirmed, he learned that Yoo was already\nunder consideration for one of OLC Deputy Assistant Attorney General slots.\nBybee said he was "enthusiastic" about Yoo and later agreed to Yoo\'s\nrequest to be assigned to the "national security portfolio" because Y00 had\nmore national security experience than any of the other OLC deputies.\n\n However, Bybee stated he was never read into the PSP and could shed\nno further light on how Yoo came to draft the OLC opinions on the program.\nHe said that Yoo had responsibility for supervising the drafting of opinions\nrelated to other national security issues when the September 11 attacks\n\n\n 8 Gonzales testified before the Senate Judiciary Committee on July 18,2006, that\n"[a]s with all decisions that are non-operational in terms of who has access to the program,\nthe President of the United States makes the decisions, because this is such an important\nprogram[.]"\n 9 The Office of Legal Counsel (OLC) typically drafts memoranda for the Attorney\nGeneral and the Counsel to the President, usually on matters involving significant legal\nissues or constitutional questions, and in response to legal questions raised by Executive\nBranch agencies. In addition, all Executive Orders proposed to be issued by the President\nare reviewed by the Office of Legal Counsel as to form and legality, as are other matters that\nrequire the President\'s formal approval.\n 10 The process of being "read into" a compartmented program generally entails\nbeing approved for access to particularly sensitive and restricted information about a\nclassified program, receiving a briefing about the program, and formally acknowledging the\nbriefing, usually by signing a nondisclosure agreement describing restrictions on the\nhandling and use of information concerning the program.\n\n\n\n\n 10 \n\n\x0coccurred. l1 Bybee described Yoo as "articulate and brilliant," and said he\nhad a "golden resume" and was "very well connected" with officials in the\nWhite House. Bybee said that from these connections, in addition to Yoo\'s\nscholarship in the area of executive authority during wartime, it was not\nsurprising that Yoo "became the White House\'s guy" on national security\nmatters.\n\n In September and early October 2001, Yoo prepared several\npreliminary opinions relating to hypothetical random domestic electronic\nsurveillance activities, but the first OLC opinion explicitly addressing the\nlegality of the PSP was not drafted until after the program had been formally\nauthorized by President Bush in October 2001. Attorney General Ashcroft\napproved the first Presidential Authorization for the PSP as to "form and\nlegality" on the same day that he was read into the program.\n\n The first OLC opinion directly supporting the legality of the PSP was\ndated November 2, 2001, and was drafted by Yoo. As discussed in Section\nIV of this report, deficiencies in Yoo\'s memorandum identified by his\nsuccessors in the Office of Legal Counsel and the Office of the Deputy\nAttorney General later became critical to DOJ\'s decision to reassess the\nlegality of the program in 2003.\n\n Yoo\'s November 2,2001 memorandum focused almost exclusively on\nthe activity that the President later publicly confirmed as the Terrorist\nSurveillance Program. Y00 acknowledged that FISA "purports to be the\nexclusive statutory means for conducting electronic surveillance for foreign\nintelligence," but opined that "[s]uch a reading of FISA would be an\nunconstitutional infringement on the President\'s Article II authorities." Yoo\ncharacterized FISA as merely providing a "safe harbor for electronic\nsurveillance," adding that it "cannot restrict the President\'s ability to engage\nin warrantless searches that protect the national security." According to\nYoo, the ultimate test of whether the government may engage in warrantless\nelectronic surveillance activities is whether such conduct is consistent with\nthe Fourth Amendment, not whether it meets the standards of FISA. Yoo\nwrote that "unless Congress made a clear statement in FISA that it sought\nto restrict presidential authority to conduct warrantless searches in the\n\n\n\n 11 As noted above, Yoo, Ashcroft, Card, and Addington declined or did not respond\nto the DOJ OIG\'s request for interviews, and the DOJ OIG does not know how Yoo came to\ndeal directly with the White House on legal issues related to the PSP. In his book "War by\nOther Means," Yoo wrote that "[a]s a deputy to the assistant attorney general in charge of\nthe office, I was a Bush Administration appointee who shared its general constitutional\nphilosophy.... I had been hired specifically to supervise OLC\'s work on [foreign affairs\nand national security]." "War by Other Means," by John Yoo, at 19-20.\n\n\n\n\n 11 \n\n\x0cnational security area - which it has not - then the statute must be\nconstrued to avoid such a reading."12\n\n Yoo\'s analysis of this point would later raise serious concerns for\nother officials in OLC and the Office of the Deputy Attorney General (ODAG)\nin late 2003 and early 2004. Among other concerns, Y00 did not address\nthe section of FISA that creates an explicit exemption from the requirement\nto obtain a judicial warrant for 15 days following a congressional declaration\nof war. See 50 U.S.C. \xc2\xa7 1811. Yoo\'s successors in OLC criticized this\nomission in Yoo\'s memorandum because they believed that by including this\nprovision in FISA Congress arguably had demonstrated an explicit intention\nto restrict the government\'s authority to conduct electronic surveillance\nduring wartime.\n\n Yoo\'s memorandum also analyzed Fourth Amendment issues raised\nby the Presidential Authorizations. Yoo dismissed Fourth Amendment\nconcerns regarding the PSP to the extent that the Authorizations applied to\nnon-U.S. persons outside the United States. Regarding those aspects of the\nprogram that involved interception of the international communications of\nU.S. persons in the United States, Yoo asserted that Fourth Amendment\njurisprudence allowed for searches of persons crossing the border and that\ninterceptions of communications into or out of the United States fell within\nthe "border crossing exception." Yoo further opined that electronic\nsurveillance in "direct support of military operations" did not trigger\nconstitutional rights against illegal searches and seizures, in part because\nthe Fourth Amendment is primarily aimed at curbing law enforcement\nabuses.\n\n Yoo also wrote that the activity described in the Presidential\nAuthorizations was "reasonable" under the Fourth Amendment and\ntherefore did not require a warrant. In support of this position, Yoo cited\n\n 12 On March 2, 2009, DOJ released nine opinions written by OLC from 2001\nthrough 2003 regarding "the allocation of authorities between the President and Congress\nin matters of war and national security" containing certain propositions that no longer\nreflect the views of OLC and "should not be treated as authoritative for any purpose."\nMemorandum for the Files from Steven G. Bradbury, Principal Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, "Re: Status of Certain OLC Opinions Issued in the\nMtermath of the Terrorist Attacks of September 11, 2001" (January 15,2009), at 1, 11.\nAmong these opinions was a classified February 2002 memorandum written by Yoo which\nasserted that Congress had not included a clear statement in FISA that it sought to restrict\npresidential authority to conduct warrantless surveillance activities in the national security\narea and that the FISA statute therefore does not apply to the President\'s exercise of his\nCommander-in-Chief authority. In Bradbury\'s unclassified January 15,2009,\nmemorandum (included among those released in March 2009), Bradbury stated that this\nproposition "is problematic and questionable, given FISA\'s express references to the\nPresident\'s authority" and is "not supported by convincing reasoning."\n\n\n\n\n 12 \n\n\x0cSupreme Court opinions upholding warrantless searches in a variety of\ncontexts, such as drug testing of employees and sobriety checkpoints to\ndetect drunk drivers, and in other circumstances "when special needs,\nbeyond the normal need for law enforcement, make the warrant and\nprobable-cause requirement impracticable." Veronia School Dist. 47J v.\nActon, 515 u.S. 464, 652 (1995)(as quoted in November 2,2001\nMemorandum at 19). Yoo wrote that in these situations the government\'s\ninterest was found to have outweighed the individual\'s privacy interest, and\nthat in this regard "no governmental interest is more compelling than the\nsecurity of the Nation." Haig v. Agee, 435 U.S. 280, 307 (1981). According\nto Yoo, the activity authorized by the Presidential Authorizations advanced\nthis governmental security interest.\n\n Yoo\'s legal memoranda omitted any discussion of Youngstown Sheet &\nTube Co. v. Sawyer, 343 U.S. 579 (1952), a leading case on the distribution\nof government powers between the Executive and Legislative Branches.\nJustice Jackson\'s analysis of President Truman\'s Article II\nCommander-in-Chief authority during wartime in the Youngstown case was\nan important factor in OLC\'s subsequent reevaluation of Yoo\'s opinions on\nthe legality of the PSP.\n\n Y00 also discussed in his memoranda the legal rationale for Other\nIntelligence Activities authorized as part of the PSP. To the extent that\nparticular statutes might appear to preclude these activities, Yoo concluded\nthat "we do not believe that Congress may restrict the President\'s inherent\nconstitutional powers, which allow him to gather intelligence necessary to\ndefend the nation from direct attack."\n\n However, as detailed in Chapter Three of the DOJ OIG report, Yoo\'s\ndiscussion of some of the Other Intelligence Activities did not accurately\ndescribe the scope of these activities. Yoo\'s factual discussion of these\nactivities was later identified by his successors in the Office of Legal Counsel\nand ODAG in late 2003 as insufficient and presenting a serious impediment\nto recertification of the program as to form and legality.\n\n The President continued to reauthorize the PSP periodically during\nlate 2001 and 2002, with some modifications of the scope of the intelligence\nactivities being authorized. In October 2002, at Attorney General Ashcroft\'s\nrequest, Yoo drafted another opinion concerning the PSP. This\nmemorandum, dated October 11, 2002, reiterated the same basic analysis\ncontained in Yoo\'s November 2, 2001, memorandum in support of the\nlegality of the PSP.\n\n As the only OLC official read into the PSP through early 2003, Yoo\nconsulted directly with White House officials about the PSP during this\nperiod. Because the DOJ OIG was unable to interview Yoo, it could not\n\n\n 13 \n\n\x0cdetermine the exact nature and extent of these consultations. The DOJ OIG\nwas also unable to determine whether Attorney General Ashcroft was fully\naware of the advice Y00 was providing directly to the White House about the\nPSP.\n\n Former Attorney General Gonzales and former OLC Assistant Attorney\xc2\xb7\nGeneral Bybee both told the DOJ OIG that they did not know how Yoo\nbecame responsible for analyzing the legality of the PSP. Bybee told us that\nhe was "surprised" and "a little disappointed" to learn through media\naccounts that Yoo had worked on the PSP without Bybee\'s knowledge.\nBybee said that it would not be unusual for a Deputy Assistant Attorney\nGeneral such as Yoo to have direct contact with the White House for the\npurpose of rendering legal advice, but that the OLC Assistant Attorney\nGeneral must be aware of all opinions that issue from OLC. Other senior\nDOJ officials also criticized the assignment of a single OLC attorney to draft\nthe legal rationale for the program. These officials noted that OLC\ntraditionally adheres to a rigorous peer review process for all legal\nmemoranda it issues. They also cited the importance of having the OLC\nAssistant Attorney General, a Senate-confirmed official accountable for the\nwork of that office, be aware of all OLC legal memoranda.\n\n Gonzales told the DOJ OIG that the Yoo opinions represented the\nlegal opinion of DOJ, and that it was Ashcroft\'s decision as to how to satisfy\nhis obligations as Attorney General. Gonzales told the DOJ OIG that\nAshcroft complained to the White House that it was "inconvenient" not to\nhave the Deputy Attorney General or Ashcroft\'s Chief of Staff read into the\nPSP, but Gonzales also stated that he never got the sense from Ashcroft that\nthis affected the quality of the legal advice about the program that DOJ\nprovided to the White House. As noted, Ashcroft declined the DOJ OIG\'s\nrequest for an interview. The DOJ OIG therefore was unable to determine\nfrom Ashcroft whether he sought additional DOJ read-ins to assist in the\nlegal analysis of the program, how hard he may have pressed for these\nadditional read-ins, or whether he believed he was receiving adequate legal\nadvice about the program from Yoo alone during this early phase of the PSP.\n\n\nIII. \t IMPLEMENTATION OF THE PRESIDENT\'S SURVEILLANCE\n PROGRAM\n\n A. \t NSA Intelligence Activities under the PSP\n\n According to the NSA OIG report, the first Presidential Authorization\nwas the product of discussions between former NSA Director Hayden and\nWhite House officials. Hayden also consulted with NSA senior technical\nexperts and experienced attorneys from the NSA\'s Office of General Counsel.\nWhile he consulted with NSA personnel in identifying critical intelligence\n\n\n\n 14 \n\n\x0cgaps, only Hayden knew about and participated in the development of the\nPresidential Authorization by serving as a technical advisor. After the\nAuthorization was signed, NSA attorneys supported the lawfulness of the\nresulting program. Hayden stated that DOJ did not participate in his early\nmeetings about the NSA\'s collection activities. As noted, the Attorney\nGeneral was read into the program on the same day he signed the first\nAuthorization as to form and legality.\n\n When the NSA received the first Presidential Authorization, Hayden\nnoted that he was assured by the signature of the Attorney General that the\nprogram was iawful and had been reviewed by the White House and DOJ.\n\n After Hayden received the first Authorization, he assembled 80 to 90\npeople in a conference room and explained what the President had\nauthorized. Hayden said: "We\'re going to do exactly what he said and not\none photon or electron more." The NSA\'s purpose in implementing the PSP\nwas to collect foreign intelligence. According to Hayden, the activities were\ntargeted and focused with the purpose of "hot pursuit" of communications\nentering or leaving the United States involving individuals believed to be\nassociated with al-Qa\'ida, not to intercept conversations between people in\nthe United States. The intercepted communications had to be reasonably\nbelieved to be al-Qa\'ida communications, one end of which was in the\nUnited States.\n\n According to the NSA OIG, the PSP had standards for targeting\nal-Qa\'ida. There were several layers of review, starting with an NSA\nmanagement review, and the NSA OIG conducted a review of target folders\nto ensure compliance with program standards and additional management\ncontrols.13 A sample of target folders was tested to determine whether\ntargeting decisions were adequately supported. Any ambiguities were\ndiscussed with analysts and adequately resolved.\n\n The NSA OIG reported that the NSA\'s conduct of the PSP was\nreviewed and monitored by the NSA Office of General Counsel and the NSA\nOIG. According to the NSA OIG, NSA employees involved in the program\nreceived tailored training and their work was overseen to ensure that all\nactivities were consistent with the letter and intent of the Authorization and\nwith the protection of civil liberties. The NSA OIG report concluded that it\nfound no evidence of intentional misuse of the PSP.\n\n\n\n 13 Internal control, or management control, comprises the plans, methods, and\nprocedures used to meet missions, goals, and objectives. It provides reasonable assurance\nthat an entity is effective and efficient in its operations, reliable in its reporting, and\ncompliant with applicable laws and regulations.\n\n\n\n\n 15 \n\n\x0c Hayden stated that although he understood that the PSP activities\nwere more aggressive than those available traditionally under FISA, he\nbelieved that the PSP was less intrusive because the period of time in which\ncollection was conducted was, in most cases, far less than was authorized in\na typical FISC order. Additionally, the sole purpose of the overall PSP was\nto detect and prevent terrorism against the United States. According to\nHayden, the program was designed to provide the NSA with the operational\nagility to cover terrorism-related targets.\n\n B. Access to the PSP\n\n 1. Executive Branch Personnel\n\n Knowledge of the PSP was strictly controlled and limited at the\nexpress direction of the White House. Further information about the\nnumber of Executive Branch employees who were read into the program is\nprovided in the classified report.\n\n As discussed below and in more detail in the DOJ OIG report, the\nDOJ OIG found that overly restrictive limitations on the number of DOJ\npersonnel read into the program created several problems. Among other\nthings, these limitations prevented DOJ from adequately reviewing the PSP\'s\nlegality during the earliest phase of the program\'s operation. The\nsubsequent identification of what DOJ officials perceived to be serious\nfactual and legal flaws in Yoo\'s early legal analysis ofthe PSP also\nprecipitated a major dispute between DOJ and the White House over\nreauthorization of the program that nearly led to the resignations of several\nsenior DOJ and FBI officials in March 2004. In addition, the ODNI OIG\nfound that the opportunity for ODNI oversight components to participate in\noversight of the PSP was limited by ODNI oversight personnel not being\ngranted timely access to the PSP.\n\n 2. Congressional Briefings\n\n On October 25,2001, White House officials and Hayden conducted a\nbriefing on the PSP for the Chairman and Ranking Member of the House\nPermanent Select Committee on Intelligence, Nancy P. Pelosi and Porter J.\nGoss; and the Chairman and Vice Chairman of the Senate Select Committee\non Intelligence, D. Robert Graham and Richard J. Shelby. According to the\nNSA, between October 25,2001, and January 17,2007, Hayden and\ncurrent NSA Director Keith Alexander, sometimes supported by other NSA\npersonnel, conducted approximately 49 briefings to members of Congress\nand their staff, 17 of which took place before the December 2005 media\nreports regarding what was called the "Terrorist Surveillance Program."\nHayden told us that during the many PSP briefings to members of Congress\nno one ever suggested that NSA should stop the program.\n\n\n 16\n\x0c 3. Foreign Intelligence Surveillance Court Briefings\n\n From January 2002 to January 2006, only FISC Presiding Judge\nRoyce Lamberth, followed by Presiding Judge Colleen Kollar-Kotelly, were\nread into the PSP. The classified report and the full DOJ OIG report\ndescribe the circumstances under which the Presiding Judge was notified of\nthe existence of the PSP and read into the program, and the measures\nsubsequently taken to address the effect of the PSP on the government\'s\nrelationship with the FISC.\n\n 4. FBI Participation in the PSP\n\n The DOJ OIG report also describes the FBI\'s participation in the PSP,\nparticularly as a recipient of intelligence collected under the program. The\nDOJ OIG addresses the challenges the FBI faced in disseminating this\ninformation to FBI field offices for investigation without revealing the source\nof the information, as well as the efforts the FBI made to improve\ncooperation with the NSA to enhance the usefulness of PSP-derived\ninformation to FBI agents. Further details about these topics are classified\nand therefore cannot be discussed here. The DOJ OIG generally found that\nthe FBI implemented reasonable procedures for expeditiously disseminating\nPSP-derived information to FBI field offices for investigation while protecting\nthe sources and methods by which the information was obtained. However,\nthe DOJ OIG also found that the highly compartmented nature of the PSP\ncreated obstacles for the FBI\'s process for handling program-derived\ninformation and understandably frustrated FBI agents responsible for\ninvestigating the information.\n\n 5. CIA Participation in the PSP\n\n The CIA OIG report describes the CIA\'s participation in the PSP. CIA\nofficials, as PSP consumers, requested information from the program and\nutilized this information in their analyses. The CIA OIG found that CIA\nofficials appeared to have had an adequate understanding of the\njustification needed to request PSP-derived information, and that CIA\nrequests were adequately justified.\n\n Senior CIA officials, including former Directors of Central Intelligence\n(DCI) Hayden and Goss, and former Acting Director McLaughlin, stated that\nthe PSP addressed a gap in intelligence collection. Following the terrorist\nattacks on September 11, 2001, there was concern that additional acts of\nterrorism would be perpetrated by terrorist cells already inside the United\nStates. Senior IC officials believed that providing IC analysts access to\nincreased signals intelligence could lead to the discovery of terrorists in the\nU.S. and planned terrorist attacks. However, collection of such\ncommunications required authorization under FISA, and there was\n\n\n 17\n\x0cwidespread belief among senior IC and CIA officials that the process for\nobtaining FISA authorization was too cumbersome and time consuming to\naddress the current threat. CIA officials stated that FISA required extensive\npaperwork and high-level reviews and approvals by the DCI and the\nAttorney General and the FISC did not always approve FISA applications in\na timely manner. Hayden and other senior IC officials also told the CIA OIG\nthat, at the time that the PSP operated, Congress had not updated FISA\nsince its 1978 enactment to reflect changes in communication technologies.\n\n 6. ODNI Participation in the PSP\n\n PSP-derived information was closely held within the ODNI and was\nmade available to a limited number of NCTC analysts for review or, if\nappropriate, use in preparing NCTC analytical products. Generally, the\nNCTC analysts approved for PSP access received PSP-derived information in\nthe form of NSA intelligence products. NCTC analysts told the ODNI OIG\nthat they generally obtained access to the PSP-derived information from a\nsecure IC database or directly from an NSA representative. NCTC analysts\ntold the ODNI OIG that the PSP-derived information was subject to stringent\nsecurity protections. The NCTC analysts said that they received training\nregarding the proper handling of IC signals intelligence, and they reported\nthat they handled all such information, including PSP-derived information,\nconsistent with standard rules and procedures.\n\n c. Impact of PSP-Derived Information on the FISA Process\n\n Chapters Three and Six of the DOJ OIG report describe how DOJ and\nthe FISC addressed the impact PSP-derived information had on the FISA\nprocess. The DOJ OIG concluded that it was foreseeable that such\ninformation might impact the process and that the initial delay in reading\nanyone from DOJ\'s Office of Intelligence Policy and Review (OIPR) or the\nFISC into the PSP unnecessarily jeopardized DOJ\'s relationship with the\nCourt. In addition, overly restrictive limitations on the number of OIPR\nattorneys and FISC judges who were read into the program created\nsignificant and avoidable problems of workload imbalance in the functioning\nboth of OIPR and the FISC. The DOJ OIG concluded that once the PSP\nbegan to affect the functioning of the FISA process, the number of OIPR staff\nand FISC judges read into the PSP to manage the program\'s impact should\nhave increased.\n\n D. Discovery Issues\n\n The DOJ OIG reviewed DOJ\'s handling of PSP information with\nrespect to its discovery obligations in international terrorism prosecutions.\nDOJ was aware as early as 2002 that information collected under the PSP\ncould have implications for DOJ\'s litigation responsibilities under Federal\n\n\n 18 \n\n\x0cRule of Criminal Procedure Rule 16 and Brady v. MC1\'rylahci,37:3 0:8.83\n(1963).\n\n Analysis of this discovery issue was first assigned f() oib DeputY\nAssistant Attorney General Yoo in 2003: However, no DOJ attorneys with\nterrorism prosecution responsibilities were read into the PSP until\nmid-2004, and as a result DOJ continued to lack the advice of attorneys\nwho were best equipped to identify and examine the discovery issues in\nconnection with the PSP.\n\n Since then, DOJ has taken steps to address discovery issues with\nrespect to the PSP, which is discussed in the DOJ OIG classified report.\nBased upon its review of DOJ\'s handling of these issues, the DOJ OIG\nrecommends that DOJ assess its discovery obligations regarding\nPSP-derived information, if any, in international terrorism prosecutions.\nThe DOJ OIG also recommends that DOJ carefully consider whether it must\nre-examine past cases to see whether potentially discoverable but\nundisclosed Rule 16 or Brady material was collected under the PSP, and\ntake appropriate steps to ensure that it has complied with its discovery\nobligations in such cases. In addition, the DOJ OIG recommends that DOJ\nimplement a procedure to identify PSP-derived information, if any, that may\nbe associated with international terrorism cases currently pending or likely\nto be brought in the future and evaluate whether such information should\nbe disclosed in light of the government\'s discovery obligations under Rule 16\nand Brady.\n\n\nIV. \t LEGAL REASSESSMENT OF THE PRESIDENT\'S SURVEILLANCE\n PROGRAM\n\n Chapter Four of the DOJ OIG\'s report describes the period in late\n2003 and early 2004 when DOJ determined that aspects of the PSP were\nnot supported by law and advised the President that the program should be\nmodified.\n\n A. \t Justice Department Attorneys Become Concerned About\n the Legality of Some Activities under the PSP\n\n As noted above, John Yoo was the sole OLC attorney who advised\nAttorney General Ashcroft and White House officials on the PSP from the\nprogram\'s inception in October 2001 through Yoo\'s resignation from DOJ in\nMay 2003. Upon Yoo\'s departure, another DOJ official, Patrick Philbin, was\nselected by the White House to be read into the PSP to assume Yoo\'s role as\nadvisor to the Attorney General concerning the program. In addition, Jack\nGoldsmith replaced Jay Bybee as the Assistant Attorney General for OLC on\nOctober 6,2003. Even though Bybee had never been read into the PSP,\n\n\n\n 19 \n\n\x0cPhilbin persuaded Counsel to the Vice President David Addington to read in\nGoldsmith, Bybee\'s replacement.\n\n After being read into the PSP, Goldsmith and Philbin became\nconcerned about the factual and legal basis for Yoo\'s legal memoranda\nsupporting the program. For example, FISA prohibits persons from\nintentionally engaging in electronic surveillance "under color of law except\nas authorized by statute[.]" 50 U.S.C. \xc2\xa7 1809(a). Yoo\'s analysis concluded\nthat this provision did not implicate the legality of the PSP because FISA did\nnot expressly apply to wartime operations. However, Yoo\'s memoranda\nomitted any reference to the FISA provision allowing the interception of\nelectronic communications without a warrant for a period of 15 days\nfollowing a congressional declaration of war. See 50 U.S.C. \xc2\xa7 181l.\nGoldsmith and Philbin were concerned that this provision contradicted Yoo\'s\nassertion that Congress did not intend FISA to apply to wartime operations.\nThey also were troubled by other aspects ofYoo\'s legal analysis and by the\nlack of an adequate factual description in his memoranda of how the PSP\noperated.\n\n B. OLC Begins Developing a New Legal Analysis for the PSP\n\n Goldsmith and Philbin began developing an analysis to more fully\naddress the FISA statute with respect to the PSP. This new analysis relied\non the legal argument that the Congressional Authorization for Use of\nMilitary Force Joint Resolution (AUMF), enacted shortly after the attacks of\nSeptember 11,2001, effectively exempted some of the activities under the\nPSP from FISA. However, Goldsmith and Philbin became concerned that\nthis revised analysis would not be sufficient to support the legality of certain\naspects of the Other Intelligence Activities that the President had authorized\nunder the PSP.\n\n Beginning in August 2003, Philbin and later Goldsmith brought their\nconcerns about the OLC legal opinions to Attorney General Ashcroft. With\nAshcroft\'s approval, Philbin began preparing a new OLC memorandum\nassessing the legality of the PSP. During this period in late 2003, Goldsmith\nand Philbin advised Ashcroft to continue to certify as to form and legality\nthe Presidential Authorizations for the PSP pending completion of the new\nlegal analysis.\n\n C. DOJ Officials Convey Concerns to the White House\n\n In December 2003, Goldsmith and Philbin met with Counsel to the\nVice President Addington and White House Counsel Gonzales at the White\nHouse to express their growing concerns about the legal underpinnings of\nthe program. Goldsmith said he told them that OLC was not sure the\nprogram could survive in its current form. According to Goldsmith\'s\n\n\n 20 \n\n\x0ccontemporaneous notes of these events, these discussions did not\ncontemplate an interruption of the program, although the White House\nofficials represented that they would "agree to pull the plug" if the problems\nwith the program were found to be sufficiently serious.\n\n In late January 2004, at Goldsmith\'s request, the White House agreed\nto allow Deputy Attorney General James Comey to be read into the PSP\nfollowing Comey\'s confirmation as the Deputy Attorney General in December\n2003. After being briefed, Comey agreed that the concerns about Yoo\'s legal\nanalysis were well-founded. 14 Comey told the DOJ OIG that of particular\nconcern to him and Goldsmith was the notion that Yoo\'s legal analysis\nentailed ignoring an act of Congress, and doing so without full congressional\nnotification.\n\n D. Conflict Between DOJ and the White House\n\n Comey told the DOJ OIG that he met with Attorney General Ashcroft\non March 4, 2004, to discuss the PSP and that Ashcroft agreed with Comey\nand the other DOJ officials\' assessment of the potential legal problems with\nthe PSP. Later that day, Ashcroft was struck with severe gallstone\npancreatitis and was admitted to the George Washington University Hospital\nin Washington, D.C.IS\n\n On March 5, 2004, Goldsmith advised Comey by memorandum that\nunder the circumstances of Ashcroft\'s medical condition and\nhospitalization, a "clear basis" existed for Comey to determine that "this is a\ncase of \'absence or disability\' of the Attorney General" within the meaning of\n28 U.S.C. \xc2\xa7 508(a). The "cc" line of Goldsmith\'s memorandum to Comey\nindicated that a copy of the memorandum was also sent to White House\nCounsel Gonzales.\n\n Later on March 5, Gonzales called Goldsmith to request a letter from\nOLC stating that Yoo\'s prior OLC opinions "covered the program," meaning\nthe PSP. Philbin told the DOJ OIG that Gonzales was not requesting a new\nopinion that the program itself was legal, but only that the prior opinions\nhad concluded that it was. As a result of Gonzales\'s request, Goldsmith,\nPhilbin, and Comey re-examined Yoo\'s memoranda with a view toward\ndetermining whether they adequately described the actual intelligence\nactivities of the NSA under the Authorizations. Goldsmith, Philbin, and\n\n\n 14 Corney also discussed DOJ\'s concerns about the legality of the program with FBI\nDirector Mueller on March 1,2004. Mueller told the DOJ OIG that this was the first time\nhe had been made aware of DOJ\'s concerns.\n 15 Ashcroft\'s doctors did not clear Ashcroft to resume his duties as Attorney\nGeneral until March 31, 2004.\n\n\n\n\n 21\n\x0cCorney concluded that Yoo\'s memoranda did not accurately describe some\nof the Other Intelligence Activities that were being conducted under the\nPresidential Authorizations implementing the PSP, and that the memoranda\ntherefore did not provide a basis for finding that these activities were legal.\n ~\n\n\n\n\n On Saturday, March 6, Goldsmith and Philbin, with Corney\'s\nconcurrence, met with Addington and Gonzales at the White House to\nconvey their conclusions that certain activities in the PSP should cease.\nAccording to Goldsmith\'s notes, Addington and Gonzales "reacted calmly\nand said they would get back with us."\n\n On Sunday, March 7,2004, Goldsmith and Philbin met again with\nAddington and Gonzales at the White House. According to Goldsmith, the\nWhite House officials informed Goldsmith and Philbin that they disagreed\nwith their interpretation of Yoo\'s memoranda and on the need to change any\nof the NSA\'s intelligence activities under the PSP.\n\n On March 9 Gonzales called Goldsmith to the White House in an\neffort to persuade him that his criticisms of Yoo\'s memoranda were incorrect\nand that Yoo\'s analysis provided sufficient legal support for the program.\nAfter Goldsmith disagreed, Gonzales next argued for a "30-day bridge" to get\npast the expiration of the current Presidential Authorization on March 11,\n2004. Gonzales reasoned that Ashcroft, who was still hospitalized, was not\nin any condition to sign a renewal of the Authorization, and that a "30-day\nbridge" would move the situation to a point where Ashcroft would be well\nenough to approve the program. Goldsmith told Gonzales he could not\nagree to recommend an extension because aspects of the program lacked\nlegal support.\n\n At noon that day, another meeting was held in the White House office\nof Andrew Card, the President\'s Chief of Staff. According to Director\nMueller\'s notes, Mueller, Card, Vice President Cheney, CIA Deputy Director\nMcLaughlin, Hayden, Gonzales, and other unspecified officials were present.\nCorney, Goldsmith, and Philbin were not invited to this meeting. After a\npresentation on the value of the PSP by NSA and CIA officials, it was then\nexplained to the group that Corney "has problems" with some activities\nauthorized under the program. Mueller\'s notes state that Vice President\nCheney suggested that "the President may have to reauthorize without [the]\nblessing of DOJ," to which Mueller responded, "I could have a problem with\nthat," and that the FBI would "have to review legality of continued\nparticipation in the program."\n\n Another meeting at the White House was held on March 9, this time\nwith Corney, Goldsmith, and Philbin present. Gonzales told the DOJ OIG\nthat the meeting was held to make sure that Corney understood what was at\nstake with the PSP and to demonstrate the program\'s value. Corney said\n\n\n 22 \n\n\x0cVice President Cheney stressed that the PSP was "critically important" and\nwarned that Corney would risk "thousands" of lives if Corney did not agree to\nrecertify the program. Corney said he stated at the meeting that he, as\nActing Attorney General, could not support reauthorizing certain intelligence\nactivities unless they were modified. According to Corney, the White House\nofficials said they could not agree to that modification.\n\n Goldsmith, Philbin, and Corney met in the early afternoon of\nMarch 10, 2004, to discuss the meeting at the White House the day before\nand how DOJ should proceed. Goldsmith and Philbin confirmed their\nposition to Corney that some of the Other Intelligence Activities under the\nPSP could not be legally supported and would have to be changed or shut\ndown.\n\n Gonzales told the DOJ OIG that after President Bush was advised of\nthe results of the March 9, 2004, meeting, the President instructed Vice\nPresident Cheney on the morning of Wednesday, March 10, to call a meeting\nwith congressional leaders to advise them of the impasse with DOJ. On the\nafternoon of March 10, at approximately 4:00 or 5:00 p.m., Gonzales and\nother White House and intelligence agency officials, including Vice President\nCheney, Card, Hayden, McLaughlin, and Tenet, convened an "emergency\nmeeting" with congressional leaders in the White House Situation Room.\nThe congressional leaders in attendance were Senate Majority and Minority\nLeaders William H. "Bill" Frist and Thomas A. Daschle; Senate Select\nCommittee on Intelligence Chairman Pat Roberts and Vice Chairman Jay\nRockefeller; Speaker of the House Dennis Hastert and House Minority\nLeader Nancy Pelosi; and House Permanent Select Committee on\nIntelligence Chair Porter Goss and Ranking Member Jane Harman. This\ncongressional group was known informally as the "Gang of Eight." No\nofficials from DOJ were asked to attend the meeting.\n\n According to Gonzales\'s notes of the meeting, individual congressional\nleaders expressed thoughts and concerns related to the program. However,\nGonzales told the DOJ OIG that the consensus of the congressional leaders\nwas that the program should continue. 16\n\n\n 16 When Gonzales testified before the Senate Judiciary Committee on July 24,\n2007, he essentially described the congressional leaders\' reactions to the March 10, 2004,\n"Gang of Eight" briefing as he did in his handwritten notes of the briefing, stating, "The\nconsensus in the room from the congressional leadership is that we should continue the\nactivities, at least for now." However, after Gonzales testified Representative Pelosi, Senator\nRockefeller, and Senator Daschle issued statements sharply disputing Gonzales\'s\ncharacterization of their statements at the March 10, 2004, meeting, stating that there was\nno consensus at the meeting that the program should proceed. Pelosi\'s office also issued a\nstatement that she "made clear my disagreement with what the White House was asking"\nconcerning the program. The DOJ OIG did not attempt to interview the congressional\n (Cont\'d.)\n\n\n 23\n\x0c Gonzales told the DOJ OIG that following the meeting with the\ncongressional leaders on March 10, President Bush instructed him and\nCard to go to the George Washington University Hospital to speak to\nAshcroft, who was in the intensive care unit recovering from surgery.\n\n According to notes from Ashcroft\'s FBI security detail, at 6:20 p.m.\nthat evening Card called the hospital and spoke with an agent in Ashcroft\'s\nsecurity detail, advising him that President Bush would be calling shortly to\nspeak with Ashcroft. Ashcroft\'s wife told the agent that Ashcroft would not\naccept the call. Ten minutes later, the agent called Ashcroft\'s Chief of Staff\nDavid Ayres at DOJ to request that Ayres speak with Card about the\nPresident\'s intention to call Ashcroft. The agent conveyed to Ayres Mrs.\nAshcroft\'s desire that no calls be made to Ashcroft for another day or two.\nHowever, at 6:45 p.m., Card and the President called the hospital and,\naccording to the agent\'s notes, "insisted on speaking [with Attorney General\nAshcroft]." According to the agent\'s notes, Mrs. Ashcroft took the call from\nCard and the President and was informed that Gonzales and Card were\ncoming to the hospital to see Ashcroft regarding a matter involving national\nsecurity.\n\n At approximately 7:00 p.m., after learning that Gonzales and Card\nwere on their way to the hospital, Ayres relayed this information to Corney.\nAccording to Corney\'s May 2007 testimony before the Senate Judiciary\nCommittee, Corney called his Chief of Staff and directed him to "get as many\nof my people as possible to the hospital immediately." Corney next called\nFBI Director Mueller and told him that Gonzales and Card were on their way\nto the hospital to see Ashcroft, and that Ashcroft was in no condition to\nreceive guests, much less make a decision about whether to recertify the\nPSP. According to Mueller\'s notes, Corney asked Mueller to come to the\nhospital to "witness [the] condition of AG." Mueller told Corney he would go\nto the hospital right away.\n\n Philbin said he was leaving work that evening when he received a call\nfrom Corney, who told Philbin that he needed to get to the hospital right\naway because Gonzales and Card were on their way there "to get Ashcroft to\nsign something." Corney also directed Philbin to call Goldsmith and tell him\nwhat was happening.\n\n Corney arrived at the hospital between 7: 10 and 7:30 p.m. In his\ncongressional testimony, Corney said he ran up the stairs with his security\ndetail to Ashcroft\'s floor, and he entered Ashcroft\'s room, which he\ndescribed as darkened, and found Ashcroft lying in bed and his wife\n\nleaders and obtain their recollections as to what was said at this meeting because this was\nbeyond the scope of its review.\n\n\n\n\n 24\n\x0cstanding by his side. Corney said he began speaking to Ashcroft, and that it\nwas not clear that Ashcroft could focus and that he "seemed pretty bad\noff[. ]"\n\n Goldsmith and Philbin arrived at the hospital within a few minutes of\neach other. Corney, Goldsmith, and Philbin met briefly in an FBI "command\npost" that had been set up in a room adjacent to Ashcroft\'s room. Moments\nlater, the command post was notified that Card and Gonzales had arrived at\nthe hospital and were on their way upstairs to see Ashcroft. Corney,\nGoldsmith, and Philbin entered Ashcroft\'s room and, according to\nGoldsmith\'s notes, Corney and the others advised Ashcroft "not to sign\nanything."\n\n Gonzales and Card entered Ashcroft\'s hospital room at 7:35 p.m.,\naccording to the FBI agent\'s notes. The two stood across from Mrs. Ashcroft\nat the head of the bed, with Corney, Goldsmith, and Philbin behind them.\nGonzales told the DOJ OIG that he carried with him in a manila envelope\nthe March 11, 2004, Presidential Authorization for Ashcroft to sign.\nAccording to Philbin, Gonzales first asked Ashcroft how he was feeling and\nAshcroft replied, "Not well." Gonzales then said words to the effect, "You\nknow, there\'s a reauthorization that has to be renewed ...." Gonzales told\nus that he may also have told Ashcroft that White House officials had met\nwith congressional leaders "to pursue a legislative fix."\n\n Corney testified to the Senate Judiciary Committee that at this point\nAshcroft told Gonzales and Card "in very strong terms" about his legal\nconcerns with the PSP, which Corney testified Ashcroft drew from his\nmeeting with Corney about the program a week earlier. Corney testified that\nAshcroft next stated:\n\n "But that doesn\'t matter, because I\'m not the Attorney General.\n There is the Attorney General," and he pointed to me - I was\n just to his left. The two men [Gonzales and Card] did not\n acknowledge me; they turned and walked from the room.\n\n Records kept by the Attorney General\'s security detail indicate that\nGonzales and Card left Ashcroft\'s room at 7:40 p.m. Moments after\nGonzales and Card departed, Mueller arrived at the hospital. At\napproximately 8:00 p.m., Mueller went into Ashcroft\'s room for 5 to 10\nminutes. Mueller wrote in his notes: "AG in chair; is feeble, barely\narticulate, clearly stressed."\n\n Before leaving the hospital, Corney received a call from White House\nChief of Staff Card. Corney testified that Card was very upset and\ndemanded that Corney come to the White House immediately. Corney told\nCard that he would meet with him, but not without a witness, and that he\n\n\n 25 \n\n\x0cintended that witness to be DOJ Solicitor General Ted Olson. Corney and\nOlson subsequently went to the White House at about 11 :00 p.m. that\nevening and met with Gonzales and Card. Gonzales told the DOJ OIG that\nlittle more was achieved at this meeting other than a general\nacknowledgement that a "situation" continued to exist because of the\ndisagreement between DOJ and the White House regarding legal\nauthorization for the program.\n\n E. \t White House Counsel Certifies Presidential Authorization\n Without Department of Justice Concurrence\n\n On the morning of March 11,2004, with the Presidential\nAuthorization set to expire, President Bush signed a new Authorization for\nthe PSP. In a departure from the past practice of having the Attorney\nGeneral certify the Authorization as to form and legality, the March 11\nAuthorization was certified by White House Counsel Gonzales. The\nMarch 11 Authorization also differed markedly from prior Authorizations in\nthree other respects. It explicitly asserted that the President\'s exercise of\nhis Article II Commander-in-Chief authority displaced any contrary\nprovisions of law, including FISA. It clarified the description of certain\nOther Intelligence Activities being conducted under the PSP to address\nquestions regarding whether such activities had actually been authorized\nexplicitly in prior Authorizations. It also stated that in approving the prior\nPresidential Authorizations as to form and legality, the Attorney General\npreviously had authorized the same activities now being approved under the\nMarch 11 Authorization. I7\n\n White House Chief of Staff Card informed Corney by telephone on the\nmorning of March 11,2004, that the President had signed the new\nAuthorization that morning. At approximately noon, ,Gonzales called\nGoldsmith to inform him that the President, in issuing the Authorization,\nhad made an interpretation of law concerning his authorities and that DOJ\nshould not act in contradiction of the President\'s determinations.\n\n Also at noon on March 11, Director Mueller met with Card at the\nWhite House. According to Mueller\'s notes, Card told Mueller that if no\n"legislative fix" could be found by May 6, 2004, when the March 11\nAuthorization was set to expire, the program would be discontinued.\n\n 17 The DOJ OIG determined that this statement subsequently was removed from\nfuture Authorizations after Ashcroft complained to Gonzales that the statement was\n"inappropriate." In a May 20, 2004 memorandum, Ashcroft wrote that it was not until\nPhilbin and later Goldsmith explained to him that aspects of the NSA\'s Other Intelligence\nActivities were not accurately described in the prior Authorizations that he realized that he\nhad been certifying the Authorizations prior to March 2004 based on a misimpression of\nthose activities.\n\n\n\n\n 26\n\x0cMueller wrote that he told Card that the failure to have DOJ representation\nat the congressional briefing and the attempt to have Ashcroft certify the\nAuthorization without going through Corney "gave the strong perception that\nthe [White House] was trying to do an end run around the Acting [Attorney\nGeneral] whom they knew to have serious concerns as to the legality of\nportions of the program." Card responded that he and Gonzales were\nunaware at the time of the hospital visit that Corney was the Acting Attorney\nGeneral, and that they had only been following the directions of the\nPresident.\n\n F. Department of Justice and FBI Officials Consider Resigning\n\n Several senior DOJ and FBI officials considered resigning after the\nPresidential Authorization was signed without DOJ\'s concurrence. Corney\ntold the DOJ OIG that he drafted a letter of resignation because he believed\nit was impossible for him to remain with DOJ if the President would do\nsomething DOJ said was not legally supportable. Corney also testified that\nAshcroft\'s Chief of Staff David Ayres believed Ashcroft also was likely to\nresign and thus Ayres urged Corney to wait until Ashcroft was well enough\nto resign with him.Is\n\n Goldsmith told the DOJ OIG he drafted a resignation letter at around\nthe same time as Corney. According to his contemporaneous notes,\nGoldsmith cited the "shoddiness" of the prior OLC legal review, the\n"over-secrecy" of the PSP, and the "shameful" incident at the hospital as\namong his grievances.\n\n At approximately 1:30 a.m. on March 12, 2004, FBI Director Mueller\ndrafted by hand a letter stating, in part: "[A]fter reviewing the plain\nlanguage of the FISA statute, and the order issued yesterday by the\nPresident ... and in the absence of further clarification of the legality of the\nprogram from the Attorney General, I am forced to withdraw the FBI from\nparticipation in the program. Further, should the President order the\ncontinuation of the FBI\'s participation in the program, and in the absence of\nfurther legal advice from the AG, I would be constrained to resign as\nDirector of the FBI." Mueller told the DOJ OIG that he planned on having\nthe letter typed and then tendering it, but that based on subsequent events\nhis resignation was not necessary.\n\n\n\n 18 In written responses to Senator Charles Schumer following his testimony, Corney\nwrote that he believed that several senior DOJ officials, including Chuck Rosenberg, Daniel\nLevin, James Baker, David Ayres, and Deputy Chief of Staff to the Attorney General David\nIsraelite, were also prepared to resign. Corney wrote that he believed that "a large portion"\nof his staff also would have resigned if he had.\n\n\n\n\n 27 \n\n\x0c On the morning of March 12,2004, Corney and Mueller attended the\nregular daily threat briefing with the President in the Oval Office. Corney\nsaid that following the briefing President Bush called him into the\nPresident\'s private study for an "unscheduled meeting." Corney told the\nPresident of DOJ\'s legal concerns regarding the PSP. According to Corney,\nthe President\'s response indicated that he had not been fully informed of\nthese concerns. Corney told the President that the President\'s staff had\nbeen advised of these issues "for weeks." According to Corney, the President\nsaid that he just needed until May 6 (the date of the next Authorization),\nand that if he could not get Congress to fix FISA by then he would shut\ndown the program. The President emphasized the importance of the\nprogram and that it "saves lives."\n\n The President next met with Mueller. According to Mueller\'s notes,\nMueller told the President of his concerns regarding the FBI\'s continued\nparticipation in the program without an opinion from the Attorney General\nas to its legality, and that he was considering resigning if the FBI were\ndirected to continue to participate without the concurrence of the Attorney\nGeneral. Mueller wrote that he explained to the President that he had an\n"independent obligation to the FBI and to DOJ to assure the legality of\nactions we undertook, and that a presidential order alone could not do\nthat." According to Mueller\'s notes, the President then directed Mueller to.\nmeet with Corney and other PSP principals to address the legal concerns so\nthat the FBI could continue participating in the program "as appropriate\nunder the law."\n\n On the morning of March 12,2004, Corney decided not to direct the\nFBI to cease cooperating with the NSA in conjunction with the program.\nCorney\'s decision is documented in a one-page memorandum from\nGoldsmith to Corney in which Goldsmith explained that the President, as\nCommander in Chief and Chief Executive with the constitutional duty to\n"take care that the laws are faithfully executed," made a determination that\nthe PSP, as practiced, was lawful. Goldsmith concluded that this\ndetermination was binding on the entire Executive Branch, including Corney\nin his exercise of the powers of the Attorney General.\n\n On March 12,2004 an interagency working group led by OLC was\nconvened to continue reanalyzing the legality of the PSP. In the days that\nfollowed, Goldsmith continued to express doubt that a viable legal rationale\ncould be found for some of the Other Intelligence Activities being conducted\nunder the PSP.\n\n On March 16,2004 Corney drafted a memorandum to White House\nCounsel Gonzales setting out his advice to the President. According to the\nmemorandum, Corney advised that DOJ remained unable to find a legal\nbasis to support certain Other Intelligence Activities that had been\n\n\n 28 \n\n\x0cauthorized as part of the program and that such activities should be\ndiscontinued immediately. Comey cautioned that he believed some ongoing\nactivities under the program raised "serious issues" about congressional\nnotification, "particularly where the legal basis for the program is the\nPresident\'s decision to assert his authority to override an otherwise\napplicable Act of Congress."\n\n Gonzales replied by letter on the evening of March 16. The letter\nstated, in part:\n\n Your memorandum appears to have been based on a\n misunderstanding of the President\'s expectations regarding the\n conduct of the Department of Justice. While the President was,\n and remains, interested in any thoughts the Department of\n Justice may have on alternative ways to achieve effectively the\n goals of the activities authorized by the Presidential\n Authorization of March 11,2004, the President has addressed\n definitively for the Executive Branch in the Presidential\n Authorization the interpretation of the law.\n\n G. White House Agrees to Modify the PSP\n\n Notwithstanding Gonzales\'s letter, on March 17, 2004 the President\ndecided to modify certain PSP intelligence-gathering activities and to\ndiscontinue certain Other Intelligence Activities that DOJ believed were\nlegally unsupported. The President\'s directive was expressed in two\nmodifications to the March 11, 2004 Presidential Authorization.\n\n On May 6,2004 Goldsmith and Philbin completed an OLC legal\nmemorandum assessing the legality of the PSP as it was operating at that\ntime. The lOB-page memorandum traced the history of the program and\nanalyzed the legality of all of the intelligence activities conducted under the\nprogram in light of applicable statutes, Executive Orders, cases, and\nconstitutional provisions. Much of the legal reasoning in the May 6, 2004\nOLC memorandum was publicly released by DOJ in a "White Paper" issued\nafter one aspect of the program was revealed in The New York Times and\npublicly confirmed by the President in December 2005 as the Terrorist\nSurveillance Program. The OLC memorandum stated that the Authorization\nfor Use of Military Force (AUMF) passed by Congress shortly after the\nattacks of September 11, 2001 gave the President authority to use both\ndomestically and abroad "all necessary and appropriate force," including\nsignals intelligence capabilities, to prevent future acts of international\nterrorism against the United States. According to the memorandum, the\nAUMF was properly read as an express authorization to conduct targeted\nelectronic surveillance against al-Qa\'ida and its affiliates, the entities\n\n\n\n 29 \n\n\x0cresponsible for attacking the United States, thereby supporting the\nPresident\'s directives to conduct these activities under the PSP.\n\n H. \t Department of Justice OIG Conclusions\n\n The DOJ OIG concluded that it was extraordinary and inappropriate\nthat a single DOJ attorney, John Yoo, was relied upon to conduct the initial\nlegal assessment of the PSP, and that the lack of oversight and review of\nYoo\'s work, as customarily is the practice of OLC, contributed to a legal\nanalysis of the PSP that at a minimum was factually flawed. Deficiencies in\nthe legal memoranda became apparent once additional DOJ attorneys were\nread into the program in 2003 and when those attorneys sought a greater\nunderstanding of the PSP\'s operation. The DOJ OIG concluded that the\nWhite House\'s strict controls over DOJ access to the PSP undermined DOJ\'s\nability to perform its critical legal function during the PSP\'s early phase of\noperation.\n\n The DOJ OIG also concluded that the circumstances plainly called for\nadditional DOJ resources to be applied to the legal review of the program\nand that it was the Attorney General\'s responsibility to be aware of this need\nand to take steps to address it. Ashcroft\'s request during this period that\nhis chief of staff David Ayres and Deputy Attorney General Larry Thompson\nbe read into the program was not approved. However, the DOJ OIG could\nnot determine whether Attorney General Ashcroft aggressively sought\nadditional read-ins to assist with DOJ\'s legal review of the program during\nthis period because Ashcroft did not agree to be interviewed.\n\n\nV. \t TRANSITION OF CERTAIN PROGRAM ACTIVITIES TO FOREIGN\n INTELLIGENCE SURVEILLANCE COURT ORDERS\n\n Certain activities that were originally authorized as part of the PSP\nhave subsequently been authorized under orders issued by the Foreign\nIntelligence Surveillance Court (FISC). The activities transitioned in this\nmanner included the interception of certain international communications\nthat the President publicly described as the "Terrorist Surveillance\nProgram."\n\n As a result of this transition, the President decided not to reauthorize\nthese activities and the final Presidential Authorization expired on February\n1, 2007. The White House stated that work on the transition of authority\nover a two-year period addressed Administration concerns about preserving\nthe speed and agility that the Terrorist Surveillance Program provided.\n\n The transition of certain PSP-authorized activities to FISC orders is\ndescribed in detail in Section 5 of the classified report and Chapter Five of\n\n\n\n 30 \n\n\x0cthe DOJ OIG Report. Further details regarding this transition are classified\nand therefore cannot be addressed in this unclassified report.\n\n In August 2007, the Protect America Act was enacted, amending FISA\nto address the government\'s ability to conduct electronic surveillance in the\nUnited States of persons reasonably believed to be located outside the\nUnited States. This legislation expired in early 2008, and in July 2008 the\nFISA Amendments Act of 2008 was enacted. This latter law authorized the\ngovernment to intercept inside the United States any communications of\nnon-U.S. persons reasonably believed to be located outside the United\nStates, provided a significant purpose of the acquisition pertains to foreign\nintelligence. This legislation gave the government even broader authority to\nintercept international communications than did the provisions of the\nPresidential Authorizations governing the activities that the President\nacknowledged in December 2005 as the Terrorist Surveillance Program.\n\n The DOJ OIG review concluded that several considerations favored\ninitiating the process of transitioning the PSP to FISA authority earlier than\nhad been done, especially as the program became less a temporary response\nto the September 11 terrorist attacks and more a permanent surveillance\ntool. These considerations included the PSP\'s effect on privacy interests of\nU.S. persons, the instability of the legal reasoning on which the program\nrested for several years, and the substantial restrictions placed on FBI\nagents\' access to and use of program-derived information due to the highly\nclassified status of the PSP.\n\n\nVI. \t IMPACT OF THE PRESIDENT\'S SURVEILLANCE PROGRAM ON\n INTELLIGENCE COMMUNITY COUNTERTERRORISM EFFORTS\n\n A. \t NSA\'s Assessment of the PSP\n\n The NSA OIG reported that Hayden, referring to portions of the PSP in\n2005, said there had probably been no communications more important to\nNSA efforts to defend the nation than those involving al-Qa\'ida. NSA\ncollected communications when one end was inside the United States and\none end was associated with al-Qa\'ida or terrorist groups associated with\nal Qa\'ida in order to detect and prevent attacks inside the United States.\nHayden stated that "the program in this regard has been successful."\nDuring the May 2006 Senate hearing on his nomination to be CIA Director,\nHayden said that, had the PSP been in place before the September 2001\nattacks, hijackers Khalid Almihdhar and Nawaf Alhazmi almost certainly\nwould have been identified and located.\n\n In May 2009, Hayden told NSA OIG that the value of the Program was\nin knowing that NSA signals intelligence activities under the PSP covered an\nimportant "quadrant" of terrorist communications. NSA\'s Deputy Director\n\n 31 \n\n\x0cechoed Hayden\'s comment when he said that the value of the PSP was in\nthe confidence it provided that someone was looking at the seam between\nthe foreign and domestic intelligence domains.\n\n B. DOJ OIG\'s Assessment of the PSP\n\n In 2004 and 2006, the FBI\'s Office of General Counsel (OGC)\nattempted to assess the value of PSP information on FBI counterterrorism\nefforts. Neither of these efforts represented a comprehensive assessment of\nthe PSP\'s value. The FBI conducted a more comprehensive survey of the\nimpact of PSP-derived information, also in 2006. The results of these\nsurveys are summarized in the DOJ OIG Report. Based in part on the\nresults of one study, FBI management, including Director Mueller and\nDeputy Director John Pistole, concluded that the PSP was "of value."\n\n The DOJ OIG sought as part of its review to assess the role of\nPSP-derived information and its value to the FBI\'s overall counterterrorism\nefforts. Director Mueller told the DOJ OIG that he believes the PSP was\nuseful. Mueller said that the FBI must follow every lead it receives in order\nto prevent future terrorist attacks and that to the extent such information\ncan be gathered and used legally it must be exploited. Mueller also stated\nthat he "would not dismiss the potency of a program based on the\npercentage of hits."\n\n The DOJ OIG interviewed FBI officials, agents, and analysts\nresponsible for handling PSP information about their experiences with the\nprogram. These assessments, more fully described in Chapter Six of the\nDOJ OIG\'s report, generally were supportive of the program as "one tool of\nmany" in the FBI\'s anti-terrorism efforts that "could help move cases\nforward." Even though most PSP leads were determined not to have any\nconnection to terrorism, many of the FBI witnesses believed the mere\npossibility of the leads producing useful information made investigating the\nleads worthwhile.\n\n However, the DOJ OIG also found that the exceptionally\ncompartmented nature of the program created some frustration for FBI\npersonnel. Some agents and analysts criticized the PSP-derived information\nthey received for providing insufficient details, and the agents who managed\ncounterterrorism programs at the FBI field offices the DOJ OIG visited said\nthe FBI\'s process for disseminating PSP-derived information failed to\nadequately prioritize the information for investigation.\n\n The DOJ OIG also examined several cases that have frequently been\ncited as examples of the PSP\'s contribution to the IC\'s counterterrorism\nefforts. These assessments, more fully described in Chapter Six of the DOJ\n\n\n\n\n 32 \n\n\x0cOIG\'s report, generally were supportive of the program as "one tool of many"\nin the FBI\'s anti-terrorism efforts.\n\n In sum, the DOJ OIG found it difficult to assess or quantify the\noverall effectiveness of the PSP program as it relates to the FBI\'s\ncounterterrorism activities. However, based on the interviews conducted\nand documents reviewed, the DOJ OIG concluded that although\nPSP-derived information had value in some counterterrorism investigations,\nit generally played a limited role in the FBI\'s overall counterterrorism efforts.\nThe reasons for this conclusion are classified and are described in the\nclassified report and Chapter Six of the DOJ OIG report.\n\n As noted above, certain activities that were originally authorized as\npart of the PSP have subsequently been authorized under orders issued by\nthe FISC. The DOJ OIG believes that DOJ and other IC agencies should\ncontinue to assess the value of information derived from such activities to\nthe government\'s counterterrorism efforts.\n\n C. CIA OIG\'s Assessment of the PSP\n\n The CIA OIG reviewed the impact of the PSP on the CIA\'s\ncounterterrorism efforts.\n\n The CIA OIG reported that senior administration officials considered\nthe PSP to be a valuable counterterrorism tool. In his December 2005 press\nconference, President Bush also said that there was an on-going debate in\nWashington, D.C. that criticized his, and previous, administrations for not\n"connecting the dots" prior to the attacks of September 11, 2001. He went\non to say that the USA PATRIOT Act and the NSA program (the PSP) are\nhelping to connect the dots as best as his administration possibly can.\nDuring a December 2005 press briefing, Hayden said that information had\nbeen obtained through this program that would not otherwise have been\navailable. Senior CIA officials also told the CIA OIG that they had received\nPSP reporting with information that was previously unavailable. One senior\nofficial told the CIA OIG that the program eliminated some of the\nimpediments that the CIA had encountered in accessing and analyzing\ncommunications between foreign and domestic locations. Another said that\nthe PSP was a key resource, and without it there would have been a missing\npiece of the picture.\n\n The CIA OIG determined that the CIA did not implement procedures\nto assess the usefulness of the product of the PSP and did not routinely\ndocument whether particular PSP reporting had contributed to successful\ncounterterrorism operations. CIA officials, including Hayden, told the CIA\nOIG that PSP reporting was used in conjunction with reporting from other\nintelligence sources; consequently, it is difficult to attribute the success of\n\n\n 33 \n\n\x0cparticular counterterrorism case exclusively to the PSP. In a May 2006\nbriefing to the Senate Select Committee on Intelligence, a senior CIA official\nsaid that PSP reporting was rarely the sole basis for an intelligence success,\nbut that it frequently played a supporting role. He went on to state that the\nprogram was an additional resource to enhance the CIA\'s understanding of\nterrorist networks and to help identify potential threats to the U.S.\nhomeland. Other officials told the CIA OIG that the PSP was one of many\ntools available to them, and that the tools were often used in combination.\n\n NSA disseminated PSP-derived information in its normal reporting\nchannels when it could be done without revealing the source of the\ninformation. As such, CIA officers, even those read into the program, would\nhave been unaware of the full extent of PSP reporting. In the course of this\nreview, the CIA OIG learned of numerous PSP reports that provided leads.\nHowever, because there is no means to comprehensively track how PSP\ninformation was incorporated into CIA analysis, officials were able to provide\nonly limited information on how program reporting contributed to\nsuccessful operations, and the CIA OIG was unable to independently draw\nany conclusion on the overall effectiveness of the program to the CIA.\n\n The CIA OIG determined that several factors hindered the CIA in\nmaking full use of the product of the PSP. Many CIA officials stated that too\nfew CIA personnel at the working level were read into the PSP. At the\nprogram\'s inception, a disproportionate number\' of the CIA personnel who\nwere read into the PSP were senior CIA managers. According to one CIA\nmanager, the tight control over access to the PSP prevented some officers\nwho could have made effective use of the program reporting from being read\nin. Another official stated that the disparity between the number of senior\nCIA managers read into PSP and the number of working-level CIA personnel\nresulted in too few CIA personnel to fully utilize PSP information for\ntargeting and analysis.\n\n Officials also told the CIA OIG that working-level CIA analysts and\ntargeting officers who were read into the PSP had too many competing\npriorities, and too many other information sources and analytic tools\navailable to them, to fully utilize PSP reporting. Officials also stated that\nmuch of the PSP reporting was vague or without context, which led analysts\nand targeting officers to rely more heavily on other information sources and\nanalytic tools, which were more easily accessed and timely than the PSP.\n\n CIA officers also told the CIA OIG that the PSP would have been more\nfully utilized if analysts and targeting officers had obtained a better\nunderstanding of the program\'s capabilities. There was no formal training\non the use of the PSP beyond the initial read-in to the program. Many CIA\nofficers stated that the instruction provided in the read-in briefing was not\nsufficient and that they were surprised and frustrated by the lack of\n\n\n 34 \n\n\x0cadditional guidance. Some officers told the CIA OIG that there was\ninsufficient legal guidance on the use of PSP-derived information.\n\n The CIA OIG concluded that the factors that hindered the CIA in\nmaking full use of the PSP might have been mitigated if the CIA had\ndesignated an individual at an appropriate level of managerial authority who\npossessed knowledge of both the PSP and CIA counterterrorism activities to\nbe responsible and accountable for overseeing CIA involvement in the\nprogram.\n\n D. ODNI\'s Assessment of the PSP\n\n Hayden told the PSP IG Group that during his tenure as Director of\nthe NSA, he sought to disseminate PSP information within the IC while also\nprotecting the PSP as the source of the information. Hayden said this policy\nlikely resulted in IC analysts not having a full appreciation of the PSP\'s\nvalue because they likely did not realize that some NSA reporting was\nderived from the PSP. NCTC analysts confirmed that they often did not\nknow if the NSA intelligence available to them was derived from the PSP.\nThe NCTC analysts said they understood that NSA marked PSP information\nin a manner that protected the source of the information.\n\n On those occasions when the NCTC analysts knew that a particular\nNSA intelligence product was derived from the PSP, the analysts said they\nreviewed the PSP information in the same manner as other NSA intelligence\nproducts and, if appropriate, incorporated the PSP information into\nanalytical products being prepared for the DNI and other senior intelligence\nofficials. NCTC analysts with access to PSP information told the ODNI OIG\nthat they had broad access to a wide variety of high-quality and fully\nevaluated terrorism related intelligence, including some of the most\nsensitive and valuable terrorism intelligence available to the IC. In this\ncontext, NCTC analysts characterized the PSP information as being a useful\ntool, but noted that the information was only one of several valuable sources\nof information available to them. During ODNI OIG interviews, some NCTC\nanalysts and ODNI personnel described the PSP information as "one tool in\nthe tool box" or used equivalent descriptions to explain their view that the\nPSP information was not of greater value than other sources of intelligence.\nThe NCTC analysts noted that the NSA policy protecting the source of the\nPSP information would have resulted in them not fully understanding the\nvalue of the PSP information.\n\n Hayden said the PSP information allowed IC leaders to make valuable\njudgments regarding the allocation of national security resources. Hayden\ndescribed the PSP as an "early warning system" for terrorist threats.\nHayden told the ODNI OIG that the PSP was extremely valuable in\nprotecting the United States from an al-Qa\'ida terrorist attack. He cited\n\n\n 35 \n\n\x0cseveral examples of where he said the PSP information was used to disrupt\nal-Qa\'ida operatives or assist in terrorism investigations.\n\n E. \t Intelligence Community Activities Supported by the PSP\n\n Most IC officials interviewed by the PSP IG Group had difficulty citing\nspecific instances where PSP reporting had directly contributed to\ncounterterrorism successes. Although it was difficult for a variety of\nreasons already discussed to independently identify instances where PSP\nreporting contributed to successful counterterrorism efforts, there are\nseveral cases identified by IC officials and in IC documentation where PSP\nreporting may have contributed to a counterterrorism success. These cases\ncannot be discussed in this unclassified report, but are described in the\nclassified report and accompanying individual OIG reports.\n\n\nVII. \t PUBLIC STATEMENTS ABOUT THE PRESIDENT\'S SURVEILLANCE\n PROGRAM\n\n As noted above, aspects of the PSP were first disclosed publicly in a\nseries of articles in The New York Times in December 2005. Subsequently,\nAttorney General Gonzales was questioned about NSA surveillance activities\nin two public hearings before the Senate Judiciary Committee in\nFebruary 2006 and July 2007. As part of its review, the DOJ OIG examined\nwhether Attorney General Gonzales made false, inaccurate, or misleading\nstatements to Congress related to the PSP in those hearings.\n\n Through media accounts and former Deputy Attorney General\nCorney\'s Senate Judiciary Committee testimony in May 2007, it was publicly\nrevealed that DOJ and the White House had a major disagreement related to\nthe PSP in March 2004. As discussed in Section IV of this unclassified\nreport, this dispute - which resulted in the visit to Attorney General\nAshcroft\'s hospital room by Gonzales and Card and brought several senior\nDOJ and FBI officials to the brink of resignation - concerned certain of the\nOther Intelligence Activities that were different from the communication\ninterception activities that the President later publicly acknowledged as the\nTerrorist Surveillance Program, but that had been implemented through the\nsame Presidential Authorizations.\n\n In testimony before the Senate Judiciary Committee, Gonzales stated\nthat the dispute at issue between DOJ and the White House did not relate\nto the Terrorist Surveillance Program that the President had confirmed, but\nrather pertained to other intelligence activities. The DOJ OIG concluded\nthat this testimony created the misimpression that the dispute concerned\nactivities entirely unrelated to the Terrorist Surveillance Program, which\nwas not accurate. As previously noted, both activities had been authorized\nby the President in a single Presidential Authorization.\n\n 36\n\x0c In addition, the DOJ OIG concluded that Gonzales\'s testimony that\nDOJ attorneys did not have "reservations" or "concerns" about the program\nthe "President has confirmed" (the Terrorist Surveillance Program) was\nincomplete and confusing. As detailed in Chapter Four of the DOJ OIG\nreport, there also was a dispute about this portion of the program.\nAlthough this dispute was not the subject of the hospital room confrontation\nor the threatened resignations, DOJ\'s concerns over this issue were\ncommunicated to the White House in several meetings over a period of\nmonths prior to and including March 2004 before the issue was resolved.\n\n The DOJ OIG recognized that Attorney General Gonzales was in the\ndifficult position of testifying before the Senate Judiciary Committee about a\nhighly classified program in an open forum. However, the DOJ OIG\nconcluded that Gonzales, as a participant in the March 2004 dispute\nbetween the White House and DOJ and, more importantly, as the nation\'s\nchief law enforcement officer, had a duty to balance his obligation not to\ndisclose classified information with the need not to be misleading in his\ntestimony about the events that nearly led to resignations of several senior\nofficials at DOJ and the FBI. The DOJ OIG concluded that Gonzales did not\nintend to mislead Congress, but it found that his testimony was confusing,\ninaccurate, and had the effect of misleading those who were not\nknowledgeable about the program.\n\n\nVIII. CONCLUSION\n\n Pursuant to the FISA Amendments Act of 2008, the Inspectors\nGeneral of the DOJ, DoD, ODNI, NSA, and CIA conducted reviews of the\nPSP. In this report, the classified report, and the accompanying individual\nreports of the participating IGs, we describe how, following the terrorist\nattacks of September 11, 2001, the President directed that the NSA\'s signals\nintelligence collection capabilities be used to detect and prevent acts of\nterrorism within the United States.\n\n Pursuant to this authority the NSA conducted new intelligence\nactivities, including the collection of the content of communications into and\nout of the United States, where one party to the communication was\nreasonably believed to be a member of al-Qa\'ida or its affiliates. The NSA\nanalyzed this information for dissemination as leads to the IC, principally to\nthe CIA and the FBI. As described in the IG reports, the scope of this\ncollection authority changed over the course of the PSP.\n\n The IG reports describe the role of each of the participating agencies\nin the PSP, including the NSA\'s management and oversight of the collection\nand analysis process, the CIA\'s and FBI\'s use of the PSP-derived intelligence\nin their counterterrorism efforts, the ODNI\'s involvement in the program by\n\n\n 37 \n\n\x0cproviding periodic threat assessments and using the program intelligence to\nproduce analytical products, and DOJ\'s role in analyzing and certifying the\nlegality of the PSP. With the exception of the NSA, the DoD had limited\ninvolvement in the PSP.\n\n The IG reports also describe the conflicting views surrounding the\nlegality of aspects of the PSP during 2004, the confrontation between\nofficials from DOJ and the White House about the legal basis for parts of the\nprogram, as well as the resolution of that conflict. The ensuing transition of\nthe PSP from presidential authority to statutory authority under FISA is also\ndescribed in the IG reports.\n\n The IGs also examined the impact of PSP information on\ncounterterrorism efforts. Many senior IC officials believe that the PSP filled\na gap in intelligence collection thought to exist under the FISA statute\nshortly after the al-Qa\'ida terrorist attacks against the United States.\nOthers within the IC, including FBI agents, CIA analysts and officers, and\nother officials had difficulty evaluating the precise contribution of the PSP to\ncounterterrorism efforts because it was most often viewed as one source\namong many available analytic and intelligence-gathering tools in these\nefforts. The IG reports describe several examples of how PSP-derived\ninformation factored into specific investigations and operations.\n\n Finally, the collection activities pursued under the PSP, and under\nFISA following the PSP\'s transition to that authority, involved\nunprecedented collection activities. We believe the retention and use by IC\norganizations of information collected under the PSP and FISA should be\ncarefully monitored.\n\n\n\n\n 38 \n\n\x0c UNCLASSIFIED \n\n\n\n\n\n PREPARED BY THE \n\n OFFICES OF INSPECTORS Gj\':NERAL \n\n OF THE \n\n DEPARTMENT OF DEFENSE \n\n DEPARTMENT OFJUSTICE \n\n CENTRAL INTELLIGENCE AG:ENl\n NATIONAL SECURITY\nOFFICE OF THE DIRECTOR OF\n\n\n (U) UNCLASSIFIED\n PRESIDENT\'S "\'TT1.V"\'TI\n\n REPORT No.\n\x0c'