President's Surveillance Program

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.

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.

[9] 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.

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" (TSP).

DOJ's National Security Division also handled potential discovery issues that may have involved PSP-related information in international terrorism prosecutions.

[2] The Inspectors General (IGs) of the Department of Defense (DoD), Department of Justice (DOJ), Central Intelligence Agency (CIA), National Security Agency (NSA), and Office of the Director of National Intelligence (ODNI) – collectively the "PSP IG Group" – conducted the review required under the FISA Amendments Act.

The IGs did not have the power to compel testimony,[11] 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.

[2] In the days immediately after September 11, 2001, the NSA used its existing authorities to gather intelligence information in response to the terrorist attacks.

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."

Comey told the DOJ OIG that of particular concern to him and Goldsmith was the notion that Yoo's legal analysis entailed ignoring an act of Congress, and doing so without full congressional notification.

[2] The DOJ OIG later concluded that it was extraordinary and inappropriate that a single DOJ attorney, John Yoo, was relied upon to conduct the initial legal assessment of the PSP, and that the lack of oversight and review of Yoo's work, as customarily is the practice of OLC, contributed to a legal analysis of the PSP that at a minimum was factually flawed.

On Saturday, March 6, Goldsmith and Philbin, with Comey's concurrence, met with Addington and Gonzales at the White House to convey their conclusions that certain activities in the PSP should cease.

A meeting with the Top administration officials, and the congressional leaders known as the Gang of Eight, but without DOJ personnel, was convened in the White House Situation Room later that day.

[2] Gonzales told the DOJ OIG that following the meeting with the congressional leaders on March 10, President Bush instructed him and Card to go to the George Washington University Hospital to speak to Ashcroft, who was in the intensive care unit recovering from surgery.

He relayed this information to FBI Director Mueller, and told him that Ashcroft was in no condition to receive guests, much less make a decision about whether to recertify the PSP.

"[2] Gonzales subsequently summoned Comey to the White House, and he brought United States Solicitor General Theodore Olson with him as a witness.

Mueller wrote that he told Card that the failure to have DOJ representation at the congressional briefing and the attempt to have Ashcroft certify the Authorization without going through Comey "gave the strong perception that the [White House] was trying to do an end run around the Acting [Attorney General] whom they knew to have serious concerns as to the legality of portions of the program.

According to his contemporaneous notes, Goldsmith cited the "shoddiness" of the prior OLC legal review, the "over-secrecy" of the PSP, and the "shameful" incident at the hospital as among his grievances.

Mueller wrote that he explained to the President that he had an "independent obligation to the FBI and to DOJ to assure the legality of actions we undertook, and that a presidential order alone could not do that."

The OLC memorandum stated that the Authorization for Use of Military Force (AUMF) passed by Congress shortly after the attacks of September 11, 2001 gave the President authority to use both domestically and abroad "all necessary and appropriate force," including signals intelligence capabilities, to prevent future acts of international terrorism against the United States.

The activities transitioned in this manner included the interception of certain international communications that the President publicly described as the "Terrorist Surveillance Program."

[2] The DOJ OIG review concluded that several considerations favored initiating the process of transitioning the PSP to FISA authority earlier than had been done, especially as the program became less a temporary response to the September 11 terrorist attacks and more a permanent surveillance tool.

The President also noted his intention to inform appropriate members of the Senate and the House of Representatives of the program "as soon as I judge that it can be done consistently with national defense needs."

Many senior IC officials believe that the PSP filled a gap in intelligence collection thought to exist under the FISA statute shortly after the al-Qa'ida terrorist attacks against the United States.

[2] During the May 2006 Senate hearing on his nomination to be CIA Director, Hayden said that, had the PSP been in place before the September 2001 attacks, hijackers Khalid al-Mihdhar and Nawaf al-Hazmi almost certainly would have been identified and located.

NSA's Deputy Director echoed Hayden's comment when he said that the value of the PSP was in the confidence it provided that someone was looking at the seam between the foreign and domestic intelligence domains.

In sum, the DOJ OIG found it difficult to assess or quantify the overall effectiveness of the PSP program as it relates to the FBI's counterterrorism activities.

She was responding specifically to a statement in the report attributed to former Deputy Attorney General James B. Comey that,[8] "Yoo's legal analysis entailed ignoring an act of Congress, and doing so without full congressional notification.

"[2] Pelosi further stated that, "the House Judiciary and Intelligence Committees will closely examine the findings and recommendations of the classified and unclassified reports, and will conduct appropriate oversight of electronic surveillance activities.