Questions and Answers about Beginning of Domestic Spying Program

The other day I noted that the Bush Administration seemed to have been using the 15-day exemption included in FISA to conduct domestic surveillance before the formal start date of the program.

There were several things going on at once (see this post for more detail). There was some debate about the AUMF–but that got signed on September 18. There were initial discussions about the PATRIOT Act–including how FISA should be altered in it. There was a briefing of HPSCI on October 1 that–Nancy Pelosi understood–was part of expanded NSA authorities. And–according to Barton Gellman–the warrantless wiretap program was approved on October 4, 2001, and it began on October 6, 2001.

In other words, the program was formally approved on the 16th day after the AUMF. 

But at least according to Nancy Pelosi, Congress was briefed on ongoing underlying activities as early as October 1. 

Meaning, the Bush Administration was already using those expanded authorities–but they were doing so by exploiting the 15-day exemption written into FISA!

Since then, I’ve tried to confirm that assertion, but the picture has only gotten muddier. There are two sets of conflicting data surrounding:

  • Program start date
  • OLC memo dates

James Bamford’s Shadow Factory and Eric Lichtblau’s reporting have some answers, but answers that raise a new set of questions. So here are some answers and more questions about the beginning of the domestic spying program.

Program Start Date

The IG Report explains the beginning of what it calls the Presidential Surveillance Program this way:

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. All of these activities were authorized in a single Presidential Authorization that was periodically reauthorized.

So, in the days immediately after 9/11, Hayden used "existing authorities" to gather intelligence information. Then Tenet asked Hayden what more he could do, and he said he needed more authorities. "Shortly thereafter,"  Bush granted authorities covering a range of activities. Read more

The “Other Intelligence Activities”

I was a bit disappointed by the number of stories about the IG Report on the domestic surveillance program last week that claimed the report revealed the program was larger or more extensive than previously admitted or known. After all, the report itself notes,

The specific details of the Other Intelligence Activities remain highly classified, although the Attorney General publicly acknowledged the existence of such activities in August 2007.

Moreover, the "Other Intelligence Activities" have in fact been reported. Just days after the program was initially exposed, for example, Lichtblau and Risen reported,  

The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.

The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system’s main arteries, they said.

As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.[my emphasis]

In other words, those two aspects of the program–massive collection of data directly from telecommunication circuits and subsequent data mining of that data–has been reported almost from the first reporting on this program. And EFF wrote a 63-page brief collecting the many acknowledgments, from both Administration officials and members of Congress briefed on the program, of the expansive collection and data mining aspects of the program.

The "Other Intelligence Activities" Were the Source of the March 10 Hospital Confrontation

I think it important to emphasize that we do know what these "Other Intelligence Activities" (OIA) are because the report confirms that these OIAs were the source of the March 10 hospital Confrontation.

We’ve had confirmation that the collection and data mining aspects of the program were the source of the confrontation for two years. 

A 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program.

Read more

When and To What Degree Was John Ashcroft Read Into the Illegal Surveillance Program?

We have long known that John Ashcroft was not properly read into the illegal domestic surveillance program. Senator Whitehouse suggested as much when Attorney General Gonzales testified in July 2007. And both Gonzales and Robert Mueller revealed that John Ashcroft–from his ICU bed–complained that his advisors had not been able to get read into the program and as a result he was ill-informed about the program.

But here’s an interesting detail about the hospital visit:

I also recall that, prior to the time I departed, General Ashcroft briefly mentioned a concern about security clearances for members of his staff regarding the NSA activities that were the subject of the presidential order.


Well, here’s the relevant detail from Mueller’s notes:

The AG also told [Card and Gonzales] that he was barred from obtaining the advice he needed on the program by the strict compartmentalization rules of the WH.

But the IG Report raises new and different questions about when–and to what degree–John Ashcroft was read into Cheney’s illegal domestic surveillance program. It includes the same details as Gonzales and Mueller have already revealed (though it looks like Gonzales was rather more cautious when speaking with the IG than before, and the IG appears not to have asked Mueller for his version of the story).

Former Attorney General Gonzales and former OLC Assistant Attorney General Bybee both told the DOJ OIG that they did not know how Yoo became responsible for analyzing the legality of the PSP.


Gonzales told the DOJ OIG that the Yoo opinions represented the legal opinion of DOJ, and that it was Ashcroft’s decision as to how to satisfy his obligations as Attorney General. Gonzales told the DOJ OIG that Ashcroft complained to the White House that it was "inconvenient" not to have the Deputy Attorney General or Ashcroft’s Chief of Staff read into the PSP, but Gonzales also stated that he never got the sense from Ashcroft that this affected the quality of the legal advice about the program that DOJ provided to the White House. As noted, Ashcroft declined the DOJ OIG’s request for an interview. The DOJ OIG therefore was unable to determine from Ashcroft whether he sought additional DOJ read-ins to assist in the legal analysis of the program, how hard he may have pressed for these additional read-ins, or whether he believed he was receiving adequate legal advice about the program from Yoo alone during this early phase of the PSP.

But there’s one big–huge–tell about whether or not Ashcroft conducted sufficient analysis of this program to approve its legality: 

Attorney General John Ashcroft approved the first Presidential Authorization for the PSP as to "form and legality" on the same day he was read into the program.

Read more

Gonzales KNEW Ashcroft Was Too Sick to Reauthorize the Program–But Asked Him To Anyway

Back when he was testifying before Congress, Alberto Gonzales played dumb about whether or not he knew John Ashcroft was too sick to sign the reauthorization for the warrantlesss wiretap program. But the IG Report makes it clear he was well aware Ashcroft couldn’t sign it.

On March 9, Gonzales admitted publicly that Ashcroft couldn’t sign the reauthorization.

Gonzales reasoned that Ashcroft, who was still hospitalized, was not in any condition to sign a renewal of the Authorization, and that a "30-day bridge" would move the situation to a point where Ashcroft would be well enough to approve the program.

But on March 10, here’s what happened. 

Gonzales told the DOJ OIG that he carried with him in a manila envelope the March 11, 2004, Presidential Authorization for Ashcroft to sign. According to Philbin, Gonzales first asked Ashcroft how he was feeling and Ashcroft replied, "Not well." Gonzales thetn said words to the effect, "You know, there’s a reauthorization that has to be renewed…" 

I know none of you had any doubt that Gonzales knew full well Ashcroft shouldn’t sign that reauthorization. But if you needed proof, now you’ve got it. 

Bush DOJ Reunion Tour

I’m posting this just to make sure I don’t forget about it.

John Ashcroft, the U.S. attorney general during President Bush’s first term — and noted singer of “Let the Eagle Soar” (YouTube clip here) — is spreading his wings. Today Ashcroft (pictured, right) announced that his law and consulting firm, The Ashcroft Group, is opening four new offices across the country, each to be led by Bush-appointed U.S. attorneys leaving office to make way for appointees by President Obama. They are:

*Michael Sullivan (pictured, left), U.S. attorney in Boston and former acting director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives in Washington. Click here for a recent LB post on Sullivan.

*Catherine Hanaway (pictured, right), U.S. attorney, St. Louis

*Johnny Sutton, U.S. attorney in El Paso, Texas, who prosecuted two former border patrol agents for shooting a Mexican drug smuggler in 2005. (On his last day in office, President Bush commuted the agents’ prison sentences.)

*John Ratcliffe, U.S. attorney in Dallas.

Of course, I don’t know how they’ll make a living, given that DOJ is cutting back on sweetheart monitoring deals associated with Deferred Prosecution Agreements. 

First DOJ IG Report on Politicization

Is here.

It shows that not just Monica Goodling, but Mike Elston and Bill Mercer and others at DOJ "crossed the line" into illegal behavior, using political affiliation in the hiring for a summer intern and AG’s Honors programs.

I’ll update as I read.

The report names Robert Coughlin–of the Abramoff corruption ring–as one of the people who may have used political affiliation in hiring–but the report ultimately does not conclude that he did.

Three career employees told us they were concerned that on one occasion Deputy Chief of Staff Robert Coughlin, a political official on the hiring committee, may have taken into account candidates’ political or ideological affiliations. One career employee wondered whether Coughlin rejected one highly qualified candidate because of the candidate’s liberal affiliations. Two other career employees wondered whether Coughlin voted to accept a less qualified candidate because of the candidate’s conservative and Republican Party affiliations. The candidate with liberal affiliations was rated highly by the career employees who interviewed him, but he did not receive an offer. Conversely, the candidate with conservative and Republican Party affiliations was not rated highly by the career employees who interviewed him yet received an offer of employment.

The career employees also told us that when they questioned Coughlin about his ranking of candidates during the group meeting in which the candidates were ranked, Coughlin stated that he was basing his recommendation on his reactions to the candidates’ interview demeanor and interview skills.

In our interview of him, Coughlin told us he never considered political or ideological affiliations in evaluating Honors Programcandidates. While Coughlin said he did not recall any details concerning the specific candidate with liberal affiliations, he recalled that he recommended the candidate with conservative affiliations because the candidate had received a strong recommendation from a previous internship with the Criminal Division and not because of the
candidate’s ideological affiliations.

We reviewed the two candidates’ applications and determined both candidates had been ranked as having strong credentials, such as federal appellate clerkships or high grades that indicated the candidates were qualified. In addition, Coughlin’s stated reasons to his colleagues and to us for his decisions – the strength of the candidates’ performances in interviews and high recommendations from a previous internship with the Department – can be appropriate bases to choose between two otherwise qualified candidates. Read more

Out of Scope: The DOJ IG Report

I’ve just now finished reading the conclusion of the Department of Justice Inspector General’s report on torture. I gotta say, I’m not surprised Alice Fisher chose this week to quit, nor am I surprised that Gitmo’s Convening Authority decided not to charge al-Qahtani, as both Fisher and Qahtani figure prominently in the report.

The other general comment I have about the report is about its scope: it was designed to protect the Administration and its method of legalizing torture. For example, the report notes:

We did not examine issues related to DOJ Office of Legal Counsel opinions concerning the legality of several interrogation techniques the CIA sought to use on certain high value detainees. While senior FBI and DOJ officials were aware of these opinions, an assessment of the validity of the OLC legal opinions was beyond the scope of this review.

Similarly, the IG report apparently did not review what happened to complaints about torture once they got to Bush’s top aides (though the report doesn’t actually say whether this was because of a scope issue or because Bush’s aides refused to cooperate).

On a broader level, we were unable to determine definitively whether the concerns of the FBI and DOJ about DOD interrogation techniques were ever addressed by any of the structures created for resolving inter-agency disputes about antiterrorism issues. These structures included the Policy Coordinating Committee, the "Principals" Committee, and the "Deputies" Committee, all chaired by the National Security Council (NSC). Several senior DOJ Criminal Division officials also told us that they raised concerns about particular DOD detainee practices in 2003 with the National Security Council, but they did not recall learning that any changes were made at GTMO as a result. Several witnesses told us that they believed that Attorney General Ashcroft spoke with the NSC or the DOD about these concerns, but former Attorney General Ashcroft declined our request for an interview in connection with this report.

Of course, there is no Inspector General function for the NSC–it’s one big executive privilege black hole in which complaints about torture can be buried. Make no mistake, though, the implication is that Condi Rice, Stephen Hadley, Dick Cheney, and Rummy did nothing apparent to resolve the inter-Agency tensions about torture.

But John Ashcroft? Refusing to meet with DOJ’s own Inspector General to talk about torture? Read more

Apples and Oranges

I wanted to link to Elsinora’s diary at DKos, where she describes John Ascroft’s attempts to avoid admitting that he sanctioned torture (the "me" in the dialogue is Elsinora herself).

ME: First off, Mr. Ashcroft, I’d like to apologize for the rudeness of some of my fellow students. It was uncalled for–we can disagree civilly, we don’t need that. (round of applause from the audience, and Ashcroft smiles) I have here in my hand two documents. One of them, you know, is the text of the United Nations Convention against Torture, which, point of interest, says nothing about "lasting physical damage"…

ASHCROFT: (interrupting) Do you have the Senate reservations to it?

ME: No, I don’t. Do you happen to know what they are?

ASHCROFT: (angrily) I don’t have them memorized, no. I don’t have time to go around memorizing random legal facts. I just don’t want these people in the audience to go away saying, "He was wrong, she had the proof right in her hand!" Because that’s not true. It’s a lie. If you don’t have the reservations, you don’t have anything. Now, if you want to bring them another time, we can talk, but…

ME: Actually, Mr. Ashcroft, my question was about this other document. (laughter and applause) This other document is a section from the judgment of the Tokyo War Tribunal. After WWII, the Tokyo Tribunal was basically the Nuremberg Trials for Japan. Many Japanese leaders were put on trial for war crimes and crimes against humanity, including torture. And among the tortures listed was the "water treatment," which we nowadays call waterboarding…

ASHCROFT: (interrupting) This is a speech, not a question. I don’t mind, but it’s not a question.

ME: It will be, sir, just give me a moment. The judgment describes this water treatment, and I quote, "the victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach." One man, Yukio Asano, was sentenced to fifteen years hard labor by the allies for waterboarding American troops to obtain information. Since Yukio Asano was trying to get information to help defend his country–exactly what you, Mr. Ashcroft, say is acceptible for Americans to do–do you believe that his sentence was unjust? (boisterous applause and shouts of "Good question!")

ASHCROFT: (angrily) Now, listen here. You’re comparing apples and oranges, apples and oranges. We don’t do anything like what you described.

Read more

Who “We” Included in the Torture Briefings

rincewind made an important point in my post on the torture briefings. At least one of the sources for the story must be one of the briefees, not a briefer. rincewind points to these two quotes that come from someone within the committee.

“It kept coming up. CIA wanted us to sign off on each one every time,” said one high-ranking official who asked not to be identified. “They’d say, ‘We’ve got so and so. This is the plan.’”


“These discussions weren’t adding value,” a source said. “Once you make a policy decision to go beyond what you used to do and conclude it’s legal, (you should) just tell them to implement it.”

This source obviously considers himself as one of the people receiving the briefing, which further suggests this source is not in the CIA.

As luck would have it, via Troutfishing’s diary and this McGovern piece, I checked out this February 7, 2002 memo in which Bush declares that Al Qaeda will not be entitled to Geneva Convention protections. The memo seems to indicate that it is addressed to all the people who have participated–at least thus far–in discussions on torture; it refers to "our recent extensive discussions regarding the status of Al Qaeda and Taliban detainees." Now check out the list of addressees:

Dick Cheney
Colin Powell
John Ashcroft
Andy Card
George Tenet
Condi Rice
Richard Myers

In other words, two of the people whom Bush noted as being involved in "extensive discussions regarding the status of Al Qaeda and Taliban detainees" are not included in the list ABC News gave of the attendees of the meetings that took place slightly later in 2002: Andy Card and Richard Myers. Either is a possibility to be the "high-ranking official" who objected to the repeated discussions of what techniques to use. Certainly, Myers is on the record as having opposed the decision not to extend Geneva Convention protections to Al Qaeda (most recently in reports from Feith’s book). And he would count as "high-ranking" in more than one sense (though neither he, nor Card, is still an official, after all).

Read more

Remember the Torture Tapes?

Just about everyone is talking about ABC’s confirmation of what we already knew: the torture was approved–in excruciating detail–by the most senior members of the Bush Administration.

In dozens of top-secret talks and meetings in the White House, the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency, sources tell ABC News.

The so-called Principals who participated in the meetings also approved the use of "combined" interrogation techniques — using different techniques during interrogations, instead of using one method at a time — on terrorist suspects who proved difficult to break, sources said.

Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects — whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.

The high-level discussions about these "enhanced interrogation techniques" were so detailed, these sources said, some of the interrogation sessions were almost choreographed — down to the number of times CIA agents could use a specific tactic.

The advisers were members of the National Security Council’s Principals Committee, a select group of senior officials who met frequently to advise President Bush on issues of national security policy.

At the time, the Principals Committee included Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.

Now, the article is actually incredibly vague about which of the high-value detainees the Principals discussed interrogating. For example, it suggests that Abu Zubaydah’s torture was planned by the Principals. But then–where elsewhere it asserts that all of the Principals approved the torture–it backs off that claim specifically with regards to Zubaydah.

But after Zubaydah recovered from his wounds at a secret CIA prison in Thailand, he was uncooperative.


The CIA wanted to use more aggressive — and physical — methods to get information.

The agency briefed high-level officials in the National Security Council’s Principals Committee, led by then-National Security Advisor Rice and including then-Attorney General Ashcroft, which then signed off on the plan, sources said. It is unclear whether anyone on the committee objected to the CIA’s plans for Zubaydah.

Read more