President's Surveillance Program
The President's Surveillance Program is a collection of secret intelligence activities authorized by the President of the United States George W. Bush after the September 11 attacks in 2001 as part of the war on terrorism. Information collected under this program was protected within a Sensitive Compartmented Information security compartment codenamed STELLARWIND.
The last presidential authorization expired on February 1, 2007, but some of the collection activities were continued, first under the authority of the Protect America Act of 2007, passed in August of that year, and then under the FISA Amendments Act, which was enacted in July 2008.
One part of the program was the Terrorist Surveillance Program, which authorized warrantless wiretapping of international communications where one party to the communication was believed to be affiliated with al-Qaeda. The other activities have reportedly included data mining of e-mail messages and telephone call detail records in the NSA call database.
In 2007 the Attorney General publicly acknowledged the existence of other intelligence activities covered under the same Presidential authorizations. The full extent of the President's Surveillance Program was revealed in June 2013, when The Guardian published a highly classified report of the Inspector General of the NSA, describing how the program was established and evolved from September 2001 until January 2007.
The President's Surveillance Program activities were periodically reauthorized by the President, and were later transitioned to authority granted in the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008. The act required the Inspectors General of all intelligence agencies involved in the program to "complete a comprehensive review" of the activities through January 17, 2007, and produce an unclassified report within one year after enactment. The report published on July 10, 2009 concluded that the President's program involved "unprecedented collection activities" that went far beyond the scope of the Terrorist Surveillance Program. The report raised questions over the legal underpinnings of the authorizations, a lack of oversight, excessive secrecy, and the effectiveness of the program. The report concluded that the program was built on a "factually flawed" legal analysis.
Public disclosure of the Terrorist Surveillance Program in 2005 ignited the NSA warrantless surveillance controversy. The other classified aspects of the program had also raised serious concerns within the Department of Justice over the program's legal status and its potential effect on future criminal prosecutions. This caused conflicts with the White House that resulted in a dramatic confrontation in 2004 at the hospital bedside of the ailing Attorney General, and nearly led to mass resignations of top Justice officials in protest when they were overruled. The report on the program was also released during a period of intense negotiations over proposed language in the Intelligence Authorization Act for Fiscal Year 2010. This would amend the National Security Act of 1947, increasing the requirements for briefing Congress on some classified intelligence programs like this one—President Barack Obama threatened to veto the bill over that issue.
Background
In the weeks following the terrorist attacks of September 11, 2001, the President of the United States authorized the National Security Agency to conduct a classified program to detect and prevent further attacks in the United States. As part of the NSA's classified program, several different intelligence activities were authorized in Presidential authorizations, and the details of these activities changed over time. The program was reauthorized by the President approximately every 45 days, with certain modifications. Collectively, the activities carried out under these authorizations are referred to as the "President's Surveillance Program".One of the activities authorized as part of the PSP was the interception of the content of communications into and out of the United States where there was "a reasonable basis to conclude that one party to the communication is a member of al-Qa'ida, affiliated with al-Qa'ida, or a member of an organization affiliated with al-Qa'ida". After a series of articles published in The New York Times revealed classified details on this aspect of the PSP, they were publicly acknowledged and described by the President, the Attorney General, and other Administration officials beginning in December 2005, including a Presidential radio address on December 17, 2005. The President and other Administration officials labeled the publicly disclosed interception on the content of certain international communications by the NSA as the "Terrorist Surveillance Program". The Attorney General subsequently publicly acknowledged that other intelligence activities were also authorized under the same Presidential authorization, but the details of those activities remain classified.
Several different agencies had roles in the PSP. At the request of the White House, the NSA was involved in providing the technical expertise necessary to create the program. The NSA also was responsible for conducting the actual collection of information under the PSP and disseminating intelligence reports to other agencies such as the Federal Bureau of Investigation, the Central Intelligence Agency, and the Office of the Director of National Intelligence National Counterterrorism Center for analysis and possible investigation. With the exception of the NSA, the Department of Defense had limited involvement in the PSP.
Components of the Department of Justice other than the FBI also were involved in the program. Most significantly, DOJ's Office of Legal Counsel provided advice to the White House and the Attorney General on the overall legality of the PSP. In addition, DOJ's Office of Intelligence Policy and Review worked with the FBI and the NSA to address the impact that PSP-derived information had on proceedings under the Foreign Intelligence Surveillance Act. DOJ's National Security Division also handled potential discovery issues that may have involved PSP-related information in international terrorism prosecutions.
The CIA, in addition to receiving intelligence reports as PSP consumers, requested information from the program and used this information in its intelligence analyses. The CIA also initially prepared threat assessment memoranda that were used to support the periodic Presidential authorizations. Beginning in 2005, the newly created ODNI assumed responsibility for preparing these threat assessment memoranda. In addition, NCTC analysts received program information for possible use in analytical products prepared for the President, senior policymakers, and other Intelligence Community analysts and officers.
PSP IG Group report
The Inspectors General of the Department of Defense, Department of Justice, Central Intelligence Agency, National Security Agency, and Office of the Director of National Intelligence – collectively the "PSP IG Group" – conducted the review required under the FISA Amendments Act. The 32 page unclassified report, dated July 10, 2009, summarized the portions of the collective results of the IG reviews that could be released in unclassified form. A separate classified report summarized the classified results of the individual IG reviews. The classified report is reportedly several hundred pages long. The unclassified report revealed new details of internal deliberations over the programs, but few new details on the scope of the surveillance.The PSP IG Group collectively interviewed approximately 200 government and private sector personnel as part of this review. Among the interviewees were former and current senior government officials, including Director of National Intelligence John Negroponte, NSA and CIA Director and Principal Deputy DNI Michael Hayden, White House Counsel and Attorney General Alberto Gonzales, FBI Director Robert Mueller, and Secretary of Defense Donald Rumsfeld. The IGs did not have the power to compel testimony, and Counsel to the Vice President David Addington, White House Chief of Staff Andrew Card, Attorney General John Ashcroft, DOJ Office of Legal Counsel Deputy Assistant Attorney General John Yoo, and former Director of Central Intelligence George Tenet declined the opportunity to be interviewed for the review.
Origin of the program
In the days immediately after September 11, 2001, the NSA used its existing authorities to gather intelligence information in response to the terrorist attacks. When Director of Central Intelligence Tenet, on behalf of the White House, asked NSA Director Hayden whether the NSA could do more against terrorism, Hayden replied that nothing more could be done within existing authorities. When asked what he might do with more authority, Hayden said he put together information on what was operationally useful and technologically feasible. This information formed the basis of the PSP. Shortly thereafter, the President authorized the NSA to undertake a number of new, highly classified intelligence activities.The specific intelligence activities that were permitted by the Presidential Authorizations were highly classified. Former White House Counsel and Attorney General Alberto Gonzales told the DOJ OIG that it was the President's decision to keep the program a "close hold." Gonzales stated that the President made the decision on all requests to "read in" any non-operational persons, including DOJ officials. Attorney General Ashcroft approved the first Presidential Authorization for the PSP as to "form and legality" on the same day that he was read into the program in October 2001.
The CIA initially prepared the threat assessment memoranda that were used to support the Presidential Authorization and periodic reauthorizations of the PSP. The memoranda documented intelligence assessments of the terrorist threats to the United States and to U.S. interests abroad from al-Qa'ida and affiliated terrorist organizations. Initially, the analysts who prepared the threat assessments were not read into the PSP and did not know how the threat assessments would be used.
"DOJ Office of Legal Counsel Deputy Assistant Attorney General John Yoo was responsible for drafting the first series of legal memoranda supporting the program. Yoo was the only OLC official 'read into' the PSP from the program's inception in October 2001." Jay Bybee was OLC Assistant Attorney General at the time, and Yoo's supervisor. However, Bybee stated he was never read into the PSP and could shed no further light on how Yoo came to draft the OLC opinions on the program. The first OLC opinion directly supporting the legality of the PSP was dated November 2, 2001, and was drafted by Yoo.
NSA Director Hayden consulted with NSA senior technical experts and experienced attorneys from the NSA's Office of General Counsel, but only Hayden knew about and participated in the development of the Presidential Authorization by serving as a technical advisor. After the Authorization was signed, NSA attorneys supported the lawfulness of the resulting program. After Hayden received the first Authorization, he assembled 80 to 90 people in a conference room and explained what the President had authorized. Hayden said: "We're going to do exactly what he said and not one photon or electron more." According to Hayden, the program was designed to provide the NSA with the operational agility to cover terrorism-related targets.