A long-awaited report on the Terrorist Surveillance Program was released today. An unclassified version of the report prepared by the Office of Inspectors General for the Departments of Defense, Justice, the CIA, NSA, and DNI is entitled Unclassified Report on the President’s Surveillance Program (pdf).
The report’s discussion of the President’s Surveillance Program (PSP) makes it clear that the Terrorist Surveillance Program (TSP) that the public became aware of in 2005 following publication by the New York Times was only one part of a much broader program expanded by Bush after 9/11 to include a variety of activities. The other activities, referred to in the report as “Other Intelligence Activities,” remain “highly classified” and are not described in the report, but are also subsumed under “PSP.” The PSP program resulted in “unprecedented” collection of data.
According to the report, although John Yoo reportedly prepared several preliminary opinions relating to hypothetical events in September and October of 2001, the first formal Office of Legal Counsel (OLC) opinion on the legality of PSP was not drafted until after President Bush formally authorized the program in October 2001. According to the report:
The first OLC opinion directly supporting the legality of PSP was dated November 2, 2001, and was drafted by Yoo. As discussed in Section IV of this report, deficiencies in Yoo’s memorandum identified by his successors in the Office of Legal Counsel and the Office of the Deputy Attorney General later became critical to DOJ’s decision to reassess the legality of the program in 2003.
As the only OLC official read into the PSP through early 2003, Yoo consulted directly with White House officials about the PSP during this period. Because the DOJ OIG was unable to interview Yoo, it could not determine the exact nature and extent of these consultations. The DOJ OIG was also unable to determine whether Attorney General Ashcroft was fully aware of the advice Yoo was providing directly to the White House about the PSP.
Of course, much that the public would want to know is omitted from the unclassified version of the report, but there is a significant amount of criticism that is left for the public to mull over. One such aspect concerns the DOJ’s handling of PSP-collected information as it related to DOJ’s discovery obligations in international terrorist prosecutions. The DOJ OIG recommended that DOJ reviews its obligations, but also that the DOJ
carefully consider whether it must re-examine past cases to see whether potentially discoverable but undisclosed Rule 16 or Brady material was collected under the PSP, and take appropriate steps to ensure that it has complied with its discovery obligations in such cases.
That Yoo was pretty much the sole source of legal justification memos for PSP seems pretty evident from reviewing the report. It also seems clear that as more people in OLC were read into the program, the OLC began seriously questioning Yoo’s memoranda and the legality of the program, while Gonzales and others in the White House kept trying to persuade Yoo’s successors that the program was legal.
Perhaps some of the greatest drama in the report is provided in the detailed description of the conflict between the White House and DOJ counsel in March 2004, which included the scene in Ashcroft’s hospital room where, having disregarded his wife’s request that her husband was too ill, White House Chief of Staff Andy Card and White House counsel Alberto Gonzales still tried to pressure Ashcroft into signing a reauthorization of the program.
Later in the report, the DOJ OIG concluded that
the White House’s strict controls over DOJ access to the PSP undermined DOJ’s ability to perform its critical legal function over the PSP’s early phase of operation.
The report also indicated that because Ashcroft would not be interviewed, it was unclear whether he had aggressively pursued getting more staff read into the program when the White House did not approve of Ashcroft’s chief of staff, David Ayres, and Deputy Attorney General Larry Thompson being read in.
The report also criticized Alberto Gonzales for providing testimony to Congress that was
confusing, inaccurate, and had the effect of misleading those who were not knowledgeable about the program.
Overall, the impression given is that by restricting details of the program to one and only one person in the OLC who would be likely to be sympathetic to the President’s views, the White House was able to produce “paper” justifying the program until March 2004 by which time others who had been read into the program raised serious doubts about the legality of the program.
Unfortunately, the public still has no court ruling on important issues such as whether the President’s Article II powers trumps FISA. If the courts would stop tossing out lawsuits based on “state secrets” defense, maybe we’d get an answer. If we don’t, then eventually we may find ourselves in a similar situation.