What the Scope of the IG Report on Warrantless Wiretapping Tells Us
Remember how when Congress passed the FISA Amendment Act last year, they required that the Inspectors General of the various agencies involved in the warrantless wiretapping produce a report on the program? They did an interim report–basically describing the scope of the report–last September (and produced in unclassified form last November). It took Secrecy News pulling teeth to get this released (six months after the fact), but here is the interim report.
General Scope
I’m going to show you the whole scope-related section, then unpack it line by line.
The DoJ IG is completing work on a broadly-scoped review of the Program, which the DoJ IG has been conducting over the past 18 months. In accord with its normal procedures and consistent with classification requirements, the DoJ IG will release its report when completed. The DoJ IG’s review examines the involvement of the DoJ and the Federal Bureau of Investigation (FBI) in the Program, including the use of and control over Program information; compliance with relevant authorities governing the Program as these authorities changed over time; and the impact and effectiveness of Program information on DoJ’s and FBI’s counterterrorism efforts. The review also describes various legal assessments of the Program, legal and operational changes to the Program, any use of Program information in the FISA process, and the transition to Foreign Intelligence Surveillance Court orders related to the Program.
The NSA IG’s review will examine the evolution of the Presidential authorization as it affected NSA, the technical operation of the Program, the preparation and dissemination of the product of the Program, and communications with and representations made to private sector entities. The review will address access by NSA to legal reviews and information concerning the Program and will also examine NSA’s interaction with the Foreign Intelligence Surveillance Court and the transition of Program activities to operations under court orders. The review will also include a description of NSA’s oversight of the Program. To conduct the review of the Program, the NSA IG will both initiate new work and draw upon a substantial body of completed evaluations.
The DoD IG will examine the involvement of the Office of the Secretary of Defense in the establishment and implementation of the Program.
The ODNI IG will examine the involvement of DNI senior leadership in the Program and DNI communication with private-sector entities concerning the Program. The ODNI IG will also examine the role of the National Counterterrorism Center (NCTC) in drafting and coordinating the threat assessments and legal certifications supporting periodic reauthorization of the Program; NCTC’s role in identifying targets and tasking Program collection; and NCTC’s use of the product to support counterterrorism analysis.
The CIA IG will examine CIA’s participation in the program, including the Agency’s role in preparing the threat assessments and legal certifications supporting periodic reauthorization of the Program.
Three points about the general scope. First, it’s clear from this description that CIA had the least claimed involvement in the program of the five agencies. And CIA’s former IG, John Helgerson, has just resigned (more detail–thanks for the reminder, MD and bmaz). Yet CIA’s IG, John Helgerson, is managing the reporting for the report (if I’m not mistaken, Helgerson CIA’s IG is less independent, at least in theory, than the other IGs). So they may be shielding certain information by having the least knowledgable agency do this review.
Also, note the absence of Treasury or Office of Foreign Asset Contol. From the al Haramain suit, we know that OFAC was involved–at least tangentially–in the program (and my have been involved in preparing threat assessments). But we get no word on Treasury’s involvement in the program, if any.
And finally, remember the rules about IG reports in general–that they can’t require cooperation from the White House–and this report specifically–that telecom involvement is off limits. So we’re not going to learn some of the most important bits about this program, by design.
DOJ Scope
And here’s the (almost) line by line:
The DoJ IG is completing work on a broadly-scoped review of the Program, which the DoJ IG has been conducting over the past 18 months.
DOJ started this in March 2006, not long after the discovery of the program. Remember, Bush tried to spike this investigation by refusing clearance for the investigators in OPR.
The DoJ IG’s review examines the involvement of the DoJ and the Federal Bureau of Investigation (FBI) in the Program, including the use of and control over Program information; compliance with relevant authorities governing the Program as these authorities changed over time; and the impact and effectiveness of Program information on DoJ’s and FBI’s counterterrorism efforts. The review also describes various legal assessments of the Program, legal and operational changes to the Program, any use of Program information in the FISA process, and the transition to Foreign Intelligence Surveillance Court orders related to the Program.
Several points here. First, DOJ OIG is investigating whether any information from the program got dumped into FISA warrants later. I’m also curious about the "compliance with relevant authorities," because it suggests that even in an illegal program there may have been abuses (remember how many reports Glenn Fine has done about FBI’s abuse of National Security Letters–this is right up his alley).
The big one, of course, is this: "use of and control over Program information." At least last September, Fine was investigating (and had been for a long time) whether or not the information collected pursuant to counterterrorism was used as such. Lucky for us, Fine is the standout among Bush-era IGs.
And then the parallel to OPR’s investigation of the torture memos (and I believe this, too, is conducted in conjunction with OPR).
The review also describes various legal assessments of the Program, legal and operational changes to the Program,
Fine is investigating the OLC memos and how they changed as Cheney’s dreams got wider and wider.
NSA Scope
Like Fine, NSA’s IG (George Ellard) is investigating how the program evolved and how the authorization evolved.
The NSA IG’s review will examine the evolution of the Presidential authorization as it affected NSA, the technical operation of the Program, the preparation and dissemination of the product of the Program,
And it’ll tell us–or Congress, at least–the technical aspects of the program.
The review will address access by NSA to legal reviews and information concerning the Program and will also examine NSA’s interaction with the Foreign Intelligence Surveillance Court and the transition of Program activities to operations under court orders.
It strikes me that the NSA wants to tell Congress that it didn’t have access to John Yoo’s crappy memos authorizing this. And that it wants to talk about how it worked with FISC–perhaps to retain credibility lost because of this program.
And note that NSA, like DOJ, wants to talk about the transition period. There’s something that happened in that transition period (the first half of 2007, basically) that they want to tell us about.
Also like DOJ, NSA had started on this process before Congress ordered it to do a report.
To conduct the review of the Program, the NSA IG will both initiate new work and draw upon a substantial body of completed evaluations.
DOD Scope
DOD’s side of the investigation is rather limited.
The DoD IG will examine the involvement of the Office of the Secretary of Defense in the establishment and implementation of the Program.
Though this may be interesting in any case for two reasons. First, because Rummy brought John Poindexter in to do Total Information Awareness under DARPA in the first place. And because DOD was prohibited from using funds to do such data mining starting in 2003. But DOD’s IG department is not as honest as DOJ of CIA IG, so who knows what we’ll actually learn?
ODNI and CIA Scope
Now, the most curious aspect of the ODNI scope is that ODNI was only established by statute in December 2004–after some of the more troublesome known aspects of the warrantless wiretap program.
The ODNI IG will examine the involvement of DNI senior leadership in the Program and DNI communication with private-sector entities concerning the Program.
So what will we learn about communication with telecoms, when most of the really pressing communcications happened earlier, in 2001 and 2002, when establishing the program, and 2004, when the telecoms were asked to wiretap based on the say so of President Bush and Gonzales alone? Do we get to learn about those earlier communications?
And then there’s this similar scope for both ODNI and CIA.
The ODNI IG will also examine the role of the National Counterterrorism Center (NCTC) in drafting and coordinating the threat assessments and legal certifications supporting periodic reauthorization of the Program; NCTC’s role in identifying targets and tasking Program collection; and NCTC’s use of the product to support counterterrorism analysis.
The CIA IG will examine CIA’s participation in the program, including the Agency’s role in preparing the threat assessments and legal certifications supporting periodic reauthorization of the Program.
Well, this is news. Apparently, the NCTC and CIA (but not the OFAC, if you believe this scope) prepared threat assessments and legal certifications supporting this program. It will be interesting to see how those reports were used. In his declarations in support of state secrets in the al Haramain case, then DNI John Negroponte talked a lot about hiding the true nature of al Qaeda for his rationale for state secrets.
Well, given that it took 6 months to get the scope of this report published, I’m not holding my breath for the report (due in July). But this gives you some idea of what we might learn, come July September December next March.
Note the timeline for releasing the report:
+ initial report was made on September 10, 2008 in a classified form
+ one sentence was removed from Sept 10 report, and it was declassified and re-submitted on November 24, 2008
+ the declassified report was released to the public today, only after Secrecy News requested it
Two thoughts:
(1) Two and a half months, to delete one sentence? If I didn’t know better, I’d almost think that the IGs were trying to hide this in the post-election, Thanksgiving holiday, transition-from-one-administration-to-another frenzy. They knew from day one that there were going to have to be both a classified and unclassified version of this report, and could have filed them both on the very same day. The fact that they didn’t do this makes me curious as to why.
(2) They held it until someone asked for it? Makes me wonder if there are any other reports we ought to be asking for.
A couple more thoughts:
1. The legislation mandated unclassified reports!
2. You wrote:
The Bush/Cheney Administration was surely interested in holding this post-election, but I’ve got to ask WTF is Jello Jay’s excuse (other than always enabling every single illegal thing the Bush/Cheney Administration wanted to do/did)?
(1) When I said “They knew from day one . . .” it was because of that mandate. In every situation I’ve seen where both a classified and unclassified report are required, they are submitted simultaneously.
(2) You can ask what Jay’s excuse was for sitting on this until the 111th Congress was formally organized, but after that you need to speak with DiFi.
Jello Jay, and our new and improved SSCI chair–DiFi!!
I wonder which CIA legal beagles were involved in “legal certifications supporting…the Program”?
Did Cheney’s Cheney, former CIA lawyer David Addington really ever resign from the CIA?
And btw, did you notice that while the Interim Report was provided to both Senators Jello Jay Rockefeller and Kit Bond of the Senate Select Committee on Intelligence, no mention was made of providing it to the House Permanent Select Committee on Intelligence as the legislation requires.
Or did Chair Silvestre Reyes and ranking (minority) member “Crazy” Pete Hoekstra get a
comic book“sanitized” version?Jello Jay is probably a wholly owned subsidiary of BushCo (in the closet maybe?). And I wonder what they know about DiFi’s hubby?
If anyone wants an idea of how upside down things became during the Bush era, they need look no further than to consider the notion that the NSA wants to talk about what they did and under what authority. Even if they only want to tell SSCI about it, the fact that they want to tell anyone is amazing.
Like Marcy, I think someone at NSA is either worried about being tarred with a broad brush or is trying to point the finger elsewhere for their own bad behavior. The only way that works is if the NSA comes clean — all the way.
A word to the IGs: If your agency messed up, now’s the time to stand up and take your lumps. You get one chance at this. One. After that, you’re . . . what’s the technical term? . . . screwed. Don’t try to fudge, and then ask come back later to revise and extend. I don’t think it will work, even with DiFi in the chair.
Seen any pigs sportin’ wings lately?
To add to this, we aren’t going to find out anything about the roles of the White House Counsel’s Office (aka Fredo/Alberto Gonzales), the OVP (Cheney, Scooter Libby and David Addington et al), nor about the National Security Advisor and staff (I’m talkin’ about you Condoleezza Rice and you Stephen Hadley and you John B. Bellinger, III!), nor about the National Security Council’s Principals Committee involvement, nor about Junya himself’s involvement.
Is there anyone else I missed? *g*
Way to go Congress!
Sure wish some investigation, sometime, somehow, could have the scope and power to probe whether or not my indemnification theory is accurate; because I still think it is.
Silly bmaz!!
Stop thinking like a lawyer. Think like a Congressperson for a change!! Here. Have a telecom donation and a big party, on the house.
If Dawn could get through the Senate, maybe we could get her to name Marcy an Independent Non-Counsel. She could do the digging in the weeds, and then have you draft the necessary legal documents.
EW, now she’s showing muscular legs. All hell’s gonna break loose.
At the very least the report will have an internal positive control to assess whitewash:
In other words, the efficacy of the investigation can be measured against existing reports of program contamination of the FISC:
I still suspect this particular issue could be a central feature of the Al-Haramain case- the possibility that there was a FISA warrant generated based on illegal information that the government can no longer depend upon. I suspect that a “state secret” Bush and Obama need to keep covered is that a lot of FISA warrants were obtained illegally (secret and illegal NSA surveillance used to secure the FISA warrant for “legal” surveillance).
Great post Marcy, and I agree with your assessments of the various IGs. I also agree with almost all of the comments. Drational is exactly right, in my opinion, we will discover that illegally obtained information got into numerous fisa applications. I also believe we will find a good old fashioned enemies list that was targeted. I hope the IG’s reports will be the start of the investigation, not the end of it.
What is taking DOJ so long to release the Yoo memo’s on the warrantless wiretapping? I am convinced we have only begun to plumb the depths of the illegal activities of Cheney and Addington. We need to do everything we can to make sure that the facts come to light. Finally, if DOJ can decide to drop the charges against Senator Ted, why haven’t they dropped the investigation into the leak of The Program? Maybe the FBI probably could not recognize me from my picture on the cover of Newsweek. Thomas M. Tamm
It’s so good to hear from you, Mr. Tamm. I’m so grateful for your sacrifices in order that we can know anything about this grand scale illegal ‘Program’ that has so infected our entire country.
A couple of things.
First, given that it has been reported that both Lamberth and Kollar-Kotelly believed that the Program was unconstitutional and both created firewalls, it’s interesting to see the difference in the language about FISCt orders with respect to DOJ/FBI and NSA. For DOJ, they are going to “describe” (as opposed to the “examine” element of the first part of the scope) the following:
Now I’ll have to fess up that I don’t know what the heck it means for them to say they are going to “describe” the transistion [to FISCT orders related to the Program, but I’m thinking that this means they are only going to look at the FISCt interplay in connection with the DOJ’s effort to bring the program into the court.
I don’t see anything in there about examining DOJ and FBI COMPLIANCE WITH FISCt firewall orders re the Program prior to transitioning. Maybe that’s one they should handing off to OPR as well, since it would be a legitimate grounds for people to face bar charges, but it is also a big procedural and operational issue. IOW, if DOJ and the Executive believe they do not have to comply with FISCt orders or that it is not clear that Congressional FISCt legislation makes them subject to the court’s orders – that should be “described” (or more to the point, “examined”). And the IG seems to be taking that position by excluding review of compliance with pre-transition FISCt orders re the program – he’s pretty much saying that either DOJ was not bound by FISCt orders relating to the program prior to the transition OR he saying that if we look at DOJ compliance with FISCt orders re: the program prior to the transition, we have a problem we can’t deal with so let’s just ignore even “describing” it, much less “examining” it.
In any event, it appears to me from the scope vis a vis DOJ/FBI, that there is no intention to review compliance or non-compliance of DOJ with FISCt orders prior to the program “transitioning” to the FISCt.
Comparing with NSA, that IG’s report
NSA’s IG is supposed to examine (not just describe) the NSA’s interaction with the FISCt AND the transition of the Program. So it isn’t focused just on the transition, however, the main “interactors” with FISCt would not be the NSA – it would be DOJ and FBI.
Compare further with the DOD scope, which does not reference the FISCt at all. And yet the published accounts indicate that at one point Rumsfeld had to actually apologize to the court about violations of the firewall orders and promise better supervision and that it wouldn’t happen again. None of that appears to be a part of the review.
IMO, rather than beating the drum with the IG, Congressional committees (Judiciary and Intel) should put together an investigative staff to interview FISCt about its interactions with DOJ, FBI, NSA, DOD, etc. re the Program. That might not only get a more reliable and complete story, but it would also put a bit of pressure on the IGs to take a more truthful course.
I have to say, I don’t necessarily think Fine has been much of a standout on torture and felonious wiretap programs and I really don’t have anything much in the faith category on what he’ll produce. He’s been around a long time bc he knows how to go along and get along. As soon as there was word being published that FISCt firewalls had been violated, he should have been all over it and he’s still not there. Once there was info out on the program, too, he should have been all over what DOJ told the telecoms and again, he’s still not there. He’s let this mess go on and on and Congress vote on legislation based on the telecoms “good faith” without there ever being an investigation into what memos were given to the telecoms, whether they were for reliance by them or not, whether they were told of the FISCt Chief Judges’ determinations on the program, whether they were told of the Hospital showdown or its aftermath with the program going forward without DOJ approval, etc. And it looks like all of that is STILL off the table.
One reason I think that, even with the wildly pared down scope, they are still only “describing” DOJ’s transition to FISCt supervision of the Program with no “examination” is that they do not want to get into some of the problems that apparently came up between DOJ and FISCt. For example, it doesn’t look like we are going to get any digging into the representations made to Congress by various person, including DNI and counterterrorism lawyers like Wainstein etc. about that little incident of *not being able to start emergency surveillance under FISA to try to find kidnapped soldiers bc FISA was haaaaaaaaard*
Congress was told more stories than you could shake a stick at about that incident and every one of them leaked like a sieve. Why wasn’t the notifiation of emergency surveillance given earlier (why did they have to wait for Gonzales to come back) why wouldn’ the DAG who was there and can act under FISA or the acting AG while Gonzales was on the road (IIRC, it was Clement – who happened to have ‘left the building’ and no one thought of calling him on his cell to come back and sign????) What happened when the FISCt did get its opportunity to review that application in the lookback? Was Gonzales censured by the court? Was there really a problem with how long the notification would take (Baker seemed pretty definite that there was NOT that kind of problem)?
I have no faith in Fine or the others and it looks very much like the IG for the Dept of JustUs has made sure that his report will basically look out for all the boys and girls who flaunted and violated court orders and knowingly promoted the execution of felonies and misrepresentations to the court. Durbin and Whitehouse both know how you get around some of this – by going straight to the entity Congress created, the FISCt, to get a real review and assessment of how DOJ interacted with the FISCt. The legislation should have done that too (provided for reports not just by the AG but by the FISCt – a gang of 8 report and a full intel and judiciary committee report) They either just want the Kabuki and don’t really want to know or they somehow haven’t noticed that they are spinning wheels and flinging mud without getting anywhere. There are all kinds of very specific incidents that have been reported or are otherwise in the public domain and they are not forcing an investigation of any of them.
The soldiers were kidnapped in a pre-dawn attack May, 12 2002.
If the sun came up at 6 am, this is 11pm, May 11 in DC. I’d asssume their 72 hour emergency surveillance clock for conducting surveillance started shortly after that, meaning that it was likely expired sometime in the night of 5/14 or early morning of 5/15/07.
In the morning of 5/15/07, Comey gave his jawdropper testimony at SJC. The hot potato FISA warrant episode happened May 15, 2007, immediately following Comey’s SJC testimony. In the aftermath of that testimony, and FISA judges already being pissed off, perhaps they were all (except Gonzo) too chickenshit to sign off on a warrant with >72 hours of surveillance already logged?
16 – good to see another vote of confidence for Fine. I’m not feeling it, but I’ll sure be happy to be wrong.
“the evolution of the Presidential authorization as it affected NSA”
This contains within it a couple items:
1. an admission that the “authorization” evolved, i.e., changed over time. We knew the Program changed over time, but this seems to make clear that those changes (or at least some of them, see 2, infra) were not made without the Preznit authorizing them.
2. We knew (or surmised and it was later confirmed, more or less) that the program changed over time, which can also indicate the initial plan for the program contained “phases” within it and that the program “Changed” as phase objectives were met.
3. This text also admits the Presidential authorization affected agencies other than NSA. What the entire list was, we still don’t know.
You also note:
“It strikes me that the NSA wants to tell Congress that it didn’t have access to John Yoo’s crappy memos authorizing this.”
IIRC (and I think it comes from Goldsmith or Comey or one of the books), that was one of NSA’s big beefs – the NSA General Counsel was not allowed to see (let alone comment on) the legal basis (i.e., memos) for what NSA was being ordered to do. The impression I have is that NSA got an order to execute and was told not to look beyond the four corners of that order – the hallmark of compartmentalizing the information and program. That points right back to Addington and Cheney chopping the program up into various compartments right in their offices.
You also note:
“Also like DOJ, NSA had started on this process before Congress ordered it to do a report.”
Evidently, someone in the bowels of the bureaucracy (NSA’s analog of Comey/Goldsmith, maybe?) decided/realized/knew that at some future time this would all come out and that it was necessary to save all the paperwork. Or at least to save all the paperwork that would show their agency in a good, law-abiding light.
drat – I am late to the party here, but i, like Mary, have never felt that we were being told anything remotely resembling the truth on this issue. Mary covered an awful lot of ground as to what the different scenarios could have been, but you can bet the store that if they really thought they could have saved soldiers lives by doing this, they simply would have done it. This is BS petulance all for show and whatever the facts are, they are nothing like has been portrayed, because what has been portrayed simply doesn’t add up.
19 – Maybe, but I think there are enough odd circumstances to suggest that there might be more and there should be investigation.
Prior to the kidnapping, “the program” was supposedly brought under the FISCt (or at least the “is al-Qaeda calling?” portion of the program that Gonzales always carefully specified as the *program the President has admitted/acknowledged*) But after that non-advocacy, not subject to public legislation, not subject to appeal and review “transition” of “the program” to the FISCt, IIRC there were reports of a FISCt ruling that pissed the NSA/DOJ crew off – the FISCt disallowing some activity. Didn’t some Republican member of Congress get on tv and start talking about that “classified information” opinion in the efforts to push harder on the “need” for more and more unconstitutional transfers of surveillance powers?
In any event, I have to wonder about whether or not, after “the program” was brought under the court, and the court ruled that a certain kind of, or approach to, surveillance was not allowed – if it isn’t that very kind of surveillance that they wanted to institute. As lots of people noted when the hearings were going on for the revisions to FISA and the intel crew were trying to bring up this incident as a reason for needing to proceed with legislation that took the supervision away from FISCt and placed everything under [just a rogue] AG, there were all kinds of surveillance options available in Iraq already – and some of those were already under “old”FISA able to be conducted by AG authorization alone.
We also know from Baker, Lamberth, etc that in “life or death” type of situations, all it took were phone calls to a FISCt Chief Judge to get orders issued – Lamberth was issuing them from his phone in his car on 9/11. So again, what the heck was going on that engendered all these meetings, foot dragging and more to the point, a “life or death” situation where there would have been foreign surveillance and yet neither the DAG (I think McNulty, who was on his way out but still there) nor the acting AG (Clement for the day IIRC, as Gonzales was on the road) could be brought in to sign off in good faith on an emergency surveillance app that would get the ball rolling right away and at worst be subject to the FISCt having a tsk about it a few days later?
Unless – what they really wanted to do was something the FISCt had told them they couldn’t. So it wasn’t a matter of an emergency surveillance being too complicated and too time consuming – but instead a matter of them wanting to do something that the court had already said no to on a prior occassion. Maybe that’s not it, but that kind of thing seems to me to fit the circumstances more than anything else I can think of.
So what if Gonzales, who is pretty used to signing off on things over the objections of FISCt (he’s the guy who ok’d the program’s continuation after OLC withdrew approval)took what they had been told they couldn’t do and put it into an emergency notification and ordered it anyway? It would make sense that McNulty – who was under fire from other places and on his way out and might not have wanted to finish up with flouting the FISCt – and Clement, who also has managed to remain relatively unscathed by all the scandals despite his blatant misrepresentations to the Sup Ct on torture – if both of those guys were reluctant to authorize under the guise of emergency surveillance actions that the FISCt had ruled could not proceed.
And then there was the later, kind of inexplicable, resignation of Gonzales and since his issues with finding work He and Bush had blown off a lot and guys who wrote torture memos now publically circulated have gone on to find slots. But we also know that there had been some reports that the FISCt pretty much kicked Fran Fragos Townsend out of their court and to the curb bc of her alleged role in an earlier scandal involving false FBI applications in the court. We know that Lamberth has talked very openly – oddly for him openly – about the FISCt taking action to bar abusers of the court from the court. We know that Kollar-Kotelly was already breathing fire about DOJ abuse in her court – and that she reportedly made Rumsfeld take hat in hand and apologize to the court and that she had been willing to go after both Mueller and Ashcroft for their earlier abuses.
I may be way off base, but I tend to wonder if what really happened was that the “emergency” surveillance really was just an attempt at cover for doing something they had done before the program was brought under the court fairly routinely, but something that, once the program was brought under the court, the court ruled to be unconstitutional or otherwise illegal(which also would explain why the new legislation had to give some of the powers it did to the AG and not the court, bc the court had some existing ruling(s) that would not allow some of the shenanigans that could be pushed through with an AG operating free from the court’s constraints)
So Gonzales just ok’s it anyway, puts it in an emergency surveillance notification, and figures – eh, the worst that will happen is that after 3 days the court will say we shouldn’t have. Only maybe the court did more. Maybe it said – you shouldn’t have and we are considering barring you from further applications before the court. Now, given the situation of FISA applications vis a vis the AG’s office, that would have been pretty huge. And if the court didn’t start blinking, it might have been a reason for even Gonzales to finally step down. Bush,egged on by Cheney, might have believed “what can they really do, Fredo?” but Gonzales would have known a bit more about what they could do to his legal career.
All fwiw, and it all may be way off base, but off base or not, the whole incident is surrounded by so many contradictory stories (most given in the context of testimony to Congress where there are some requirments for telling the truth) that I think it all bears a pretty significant look-see. jmo, fwiw.
20 – or got some kind of input from the FISCt that they SHOULD be saving all the paperwork.
Don’t forget that NSA is part of DOD. It would have to obey orders from the Secretary of Defense, at least as long as it did not consider such orders illegal.
I strongly suspect that any doubts NSA lawyers may have had about the legality of the new program(s) were overcome by one or more opinions issued by OLC. Those have binding legal force throughout the executive branch.