U.S. Department of Justice [Type text] United States Attorney Southern District of New York 86 Chambers Street New York, New York 10007 April 24, 2015 BY E-MAIL David McCraw Jeremy Kutner Legal Department The New York Times Company 620 8th Avenue, 18th Floor New York, NY 10018 Re: New York Times Company v. U.S. Department of Justice, 14 Civ. 3776 (AT) Dear Mr. McCraw and Mr. Kutner: On behalf of the United States Department of Justice (the “Government”), we enclose one three-volume document pursuant to the schedule so-ordered by the Court on August 28, 2014, as finally modified by the Court’s Order on April 17, 2015, in the above-referenced FOIA case. Information in this document has been redacted pursuant to certain FOIA exemptions, including 5 U.S.C. §§ 552(b)(1), (b)(3), (b)(5), (b)(6), (b)(7)(C) and (b)(7)(E). The Government reserves its right to modify or supplement the exemptions listed for information that has been redacted from this document. If you have any questions, please let us know. Sincerely, PREET BHARARA United States Attorney Southern District of New York By: Encls. s/ John Clopper JOHN D. CLOPPER EMILY DAUGHTRY Assistant United States Attorneys Tel.: (212) 637-2716/2777 Fax: (212) 637-2702 john.clopper@usdoj.gov emily.daughtry@usdoj.gov (U) REPORT ON THE PRESIDENT SURVEILLANCE PROGRAM VOLUME I 10 JULY 2009 Lf?jz?t? 4 JW ""5213-_El ?Eganb PREPARED BY THE OFFICES OF INSPECTORS GENERAL OF THE DEPARTMENT OF DEFENSE DEPARTMENT OF JUSTICE CENTRAL INTELEIGENCE AGENCY NATIONAL SECURITYAGENCY OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE SpecinlWaIning The report contains compartmented, classi?ed material and no secondary distribution may be made without prior consent of the participating Inspectors General. Improper disclosure of this report may resultin criminal, civil, or administrative penalties. REPORT No. 2009-0013-A APPROVED FOR PUBLIC RELEASE 10 July 2009 (U) Preface (U) Title of the Foreign Intelligence Surveillance Act Amendments Act of 2008 required the Inspectors General (IGs) of the elements of the Intelligence Community that participated in the President?s Surveillance Program (PSP) to conduct a comprehensive review of the Program. The IGs of the Department of Justice the Department of Defense the Central Intelligence Agency (CIA), the National Security Agency (NSA), and the Office of the Director of National Intelligence (ODNI) participated in the review required under the Act. The Act required the IGs to submit a comprehensive report on the review to the Senate Select Committee on Intelligence, the Senate Committee on the Judiciary, the House Permanent Select Committee on Intelligence, and the Reuse Committee on the Judiciary. (U) Because many aspects of the PSP remain classified, and in order to provide the Congressional committees the complete results of our review, we have prepared this classified report on the PSP. The report is in three volumes: 6 Volume I summarizes the collective results of the review. 6 Volume II contains the individual reports prepared and issued by the CIA, NBA, and ODNI IGs. 0 Volume contains the report prepared and issued by the IG. (U) The unclassified report on the PSP required by Title has been provided to the Congressional committees in a separately bound volume. Unclassified When Separated From Attachment Dated: APPROVED FOR PUBLIC RELEASE Glenn A. Fine Inspector General Department of Justice 4 Patricia A. Len Acting Inspector General Central Intelligence Agency MazerU Inspec or General Office of the Director of National Intelligence @442." SW ?0 Gordon S. Heddell Acting Inspector General Department of Defense George Inspector General National Security Agency APPROVED FOR PUBLIC RELEASE (U) Table of Contents (U) INTRODUCTION ..1l (U) Scope of the Review (U) Methodology ..2 (U) OF THE SURVEILLANCE PROGRAM "4 (U) National Security Agency Counterterrorism Efforts Prior to 11 September 2001 "4 (U) NSA Initially Used Existing Authorities to Enhance Signals intelligence (SIGINT) Collection After the September 2001 Terrorist Attacks .. 5 (U) NSA Explored Options to Improve SIGINT Collection and Address Intelligence Gaps on Terrorist Targets .. 6 (U) Impediments to Collection Against Terrorist Targets Were Discussed With the White House ..T (U) Authorization of the President's Surveillance Program ..T (U) SIGINT Activities Authorized Under the Program (U) Content of the Presidential Authorizations and Department of Justice Certification as to Form and Legality (U) The Threat Assessment Memorandums Supporting Presidential Authorization of the Program "10 (U) Early Revisions to the Presidential Authorizations .. 11 (U) Office of Legal Counsel Memorandums Supporting Legality of the Program ..12 (U) HMPLEMENTATHON OF SURVEILLANCE PROGRAM .. 16 (U) NSA implementation .. 16 APPROVED FOR PUBLIC RELEASE - LI til i" fix 1 1-.l E'i-Uf Telephone and Internet Communications Content Collection and Analysis .. Telephony and Internet Metaciata Collection and Analysis ..20 (U) NSA Reporting From the President's Surveillance Program ..21 (U) NSA Managerial Structure and Oversight of the President's Surveillance ..22 (U) NSA Management Controls to Ensure Compliance With Presidential Authorizations ..23 (U) NSA Inspector General Oversight of the Program .. 24 (U) Access to the President?s Surveillance Program ..25 (U) Congressional Briefings on the Program "26 (U) Foreign Intelligence Surveillance Court Brie?ngs on the Program ..27 (U) FBI Participation in the President's Surveillance Program "28 (U) CIA Participation in the President's Surveillance Program "30 (U) NCTC Participation in the President's Surveillance Program ..32 (U) The President's Surveillance Program and the Foreign Intelligence Surveillance Court ..33 (U) Discovery Issues Associated With the President's Surveillance Program .. 35 (U) LEGAL REASSESSMENT OF THE SURVEILLANCE PROGRAM (2003 2004) .. 35 over m? Collection .. 33 (U) A New Legal Basis for the Program ls Adopted .. 37 (U) Department of Justice Of?cials Convey Concerns About the Program to the White House .. 39 (U) Con?ict Between the Department of Justice and the White House Over the Program White House Counsel Certi?es Presidential Authorization Without epartment of Justice Concurrence "414 (U) Restrictions on Access to the President's Surveillance Program Impeded Department }of Justice Legal Review ..50 I (U) TRANSITION 0F SURVEILLANCE PROGRAM ACTIVITIES TO FOREIGN INTELLIGENCE SURVEILLANCE ACT AUTHORITY .. 50 Internet Collection Transition to Operation Under FISA Authority "50 (U) Department of Justice Notices of Compliance Incidents "53 Telephony Collection Transition to Operation Under FISA Authority .. 54 Content Collection Transition to Operation Under FISA Authority .. 57 (U) IMPACT OF THE SURVEILLANCE PROGRAM ON INTELLIGENCE COMMUNITY COUNTERTERRORISM EFFORTS ..60 (U) Senior Intelligence Community Of?cials Believe That the President?s Surveillance Program Filled an Intelligence Gap ..50 (U) Difficulty in Assessing the Impact of the President's Surveillance Program .. 61 (U) Impact of the President's Surveillance Program on FBI Counterterrorism Efforts (U) FBI Efforts to Assess the Value of the Program ..62 (U) Fl Judgmental Assessments of the Program .. 52 (U) Impact of the President?s Surveillance Program on CIA Counterterrorisrn Operations .. 63 (U) The CIA Did Not Systematically Assess the Effectiveness of the Program .. 53 (U) Several Factors Hindered CIA Utilization of the Program .. 64 PPROVED FOR PUBLIC RELEASE (U) Impact of the President?s Surveillance Program on NCTC Counterterrorism Efforts .35 (U) Counterterrorism Operations Supported by the President?s Surveillance Program (U) ATTORNEY GENERAL TESTIMONY ON THE SURVEILLANCE PROGRAM ..68 (U) CONCLUSIONS. ..69 APPROVED 0 PUBLIC RELEASE '13. F?ri?. Li (an lit h?l (U) The President?s Surveillance Program (U) INTRODUCTION In response to the terrorist attacks of 11 September 2001, on 4 October 2001, President George W. Bush issued a Top Secret authorization to the Secretary of Defense directing that the signals intelligence (SIGINT) capabilities of the National Security Agency (N SA) be used to detect and prevent ?irther attacks in the United States. The Presidential Authorization stated that an extraordinary emergency existed permitting the use of electronic surveillance within the United States for counterterrorism purposes, without a court order, under certain circtunstances. For more than ?ve years, the Presidential Authorization was renewed at 30- to 60-day intervals to authorize the highly classi?ed NSA suIVeillance program, which is referred to throughout this report as the President's Surveillance Program Under the Presidential Authorizations, the NSA intercepted the content of international telephone and Internet communications of both US. and non-US. persons. In addition, the NSA collected telephone and Internet metadata? communications signaling information showing contacts between and among telephone numbers and Internet communications addresses, but not including the contents of the communications. The content and metadata inlet-matron was analyzed by the NSA, working with other members of the Intelligence Community (IC), to generate intelligence reports. These reports were sent to the Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA), and other intelligence organizations. (U) The scope of collection permitted under the Presidential Authorizations varied over time. In stages between July 2004 and January 2007, NSA ceased PSP collection activities under Presidential authorization and resumed them under four separate court orders issued in accordance with the Foreign Intelligence Surveillance Act of 1978 as amended (F (U) Scope of the Review (U) Title of the Foreign Intelligence Surveillance Act Amendments Act of 2008 (FISA Amendments Act)?signed into law on 10 July 2008?required the inSpectors The cover term NSA uses to protect the President?s Surveillance Program is 2 (U) Unless otherwise indicated, references to FISA in this report are to the statute as it existed prior to being amended in 2008. general of the elements of the IC that participated in the PSP to conduct a comprehensive review of the program.3 The Act required that the review examine: (A) all of the facts necessary to describe the establishment, implementation, product, and use of the product of the Program; (B) access to legal reviews of the Program and access to information about the Program; I (C) communications with, and participation of, individuals and entities in the private sector related to the Program; (D) interaction with the Foreign Intelligence Surveillance Court and transition to court orders related to the Program; and (E) any other matters identi?ed by any such Inspector General that would enable that Inspector General to complete a review of the Program, with reSpect to such Department or element. (U) The Inspectors General (Me) of the Department of Defense the Department of Justice the CIA, the NSA, and the Of?ce of the Director of National Intelligence (ODNI) conducted the review required under the Act. This report summarizes the collective results of the 165' review. Conclusions and recommendations in this report that are attributed to a particular IG should be understood to represent that IG's opinion. Individual reports detail the results of each IG's review and are annexes to this report. All of the reports have been classi?ed in accordanCe with the program's classi?cation guide, which was revised during our review and re-issued on 21 January 2009. (U) Title of the ISA Amendments Act also required that the report of any of matters relating to the PSP conducted by the D01, Of?ce of Professional Responsibility (OPR) be provided to the IG, and that the ?ndings and conclusions of such investigation be included in the IG's review. OPR intends to review Whether any standards of professional conduct were violated in the preparation of the ?rst series of legal memorandums supporting the PSP. OPR has not yet completed its review or provided its ?ndings and conclusions to the Do] IG. (U) Methodology (U) During the course of this review, the participating IGs conducted approximately 200 interviews. Among the individuals we interviewed were: former White House Counsel and Attorney General Alberto R. Gonzales; former Deputy Attorney General James B. Comey; FBI Director Robert S. Mueller, former Secretary of Defense 3 (U) The President?s Surveillance Program is de?ned in the Act as the intelligence activity involving communications that was authorized by the President during the period beginning on 1 1 September 2001 and ending on 17 January 2007, including the program referred to by the President in a radio address on 17 December 2005 (commonly known as the Terrorist SurVeillance Program). APPROVED FOR PUBLIC RELEASE Donald H. Ruinsfeld; former NSA Director, Principal Deputy Director of National Intelligence, and CIA Director Michael V. Hayden; former Director of Central Intelligence (DCI) and CIA Director Porter J. Goss; NSA Director Lieutenant General Keith B. Alexander; former Directors of National Intelligence John D. Negroponte and J. M. McConnell; and former National Counterterrorism Center (NCTC) Director John O. Brennan. Certain other persons who had signi?cant involvement in the PSP either declined or did not respond to our requests for an interview, including former Deputy Secretary of Defense Paul D. Wolfowitz; former Chief of Staff to President Bush Andrew H. Card; David S. Addington, former Counsel to Vice President Richard B. Cheney; former Attorney General John D. Ashcroft; former Deputy Assistant Attorney General John You; and former DCI George J. Tenet. We interviewed former as well as leadership within the NS Intelli ence Directorate . We i terviewed ersonnel from the senior FBI Counterterrorisrn Division o?icials; FBI specia agents senior of?cials from DoJ?s Criminal and National Security Divisions; and current and former senior NCTC of?cials. We also interviewed of?cials and office of general counsel of?cials from the participating organizations who were involved in legal reviews of the PSP and/or had access to the memorandums supporting the legality of the PSP. We examined thousands of electronic and hardcopy documents, including the Presidential Authorizations, terrorist threat assessments, legal memorandums, applicable regulations and policies, brie?ngs, reports, correspondence, and notes. We obtained access to an FBI database of PSP-derived leads that had been disseminated to FBI ?eld of?ces. We used the database to con?rm information obtained through interviews and to assist in our analysis of FBI investigations that utilized PSP information. We evaluated the justi?cations included in the requests for information (RF Is) submitted determine whether they were in accordance with program guidelines. Reports of prior reviews and investigations of the PSP conducted by the NSA IG were also utilized in our review. APPROVED FOR PUBLIC RELEASE (U) INCEPTION OF THE SURVEILLANCE PROGRAM (U) National Security Agency Counterterrorism Efforts Prior to 11 September 2001 Teasers For more than a decade before the terrorist attacks of 11 September 2001, NSA was applying its SIGINT capabilities against terrorist targets in response to IC requirements.I The NSA, SID, Counterterrorism (CT) Product Line led these efforts. NSA was authorized by Executive Order (E.O.) 12333, Unimi States Intelligence Activities, 4 December 1981, as amended, to collect, process, and disseminate information for foreign intelligence and cormterintelligence purposes in accordance with DCI guidance and to support the conduct of military operations under the guidance of the Secretary of Defense. It is the policy of US Government entities that conduct SIGINT activities that they will collect, retain, and disseminate only foreign communications. In September 2001, compliance procedures de?ned foreign communications as communications having at least one communicant outside the United States, communications entirely among foreign powers, or communications between a foreign pDWer and of?cers or employees of a foreign power. All other communications Were considered domestic communications. NSA was not authorized under E.O. 12333 to collect communications from a wire in the United States without a court order unless the communications originated and terminated outside the United States or met applicable exceptions to the requirement of a court order under FISA. (U) FISA, 50 U.S.C. 1801, et seq., was enacted in 1978 to "provide legislative authorization and regulation for all electronic surveillance conducted within the United States for foreign intelligence purposes." FISA authorizes the Federal Government to engage in electronic surveillance and physical searches, to use pen register and trap and trace devices, and to obtain business records to acquire foreign intelligence information by targeting foreign powers and agents of foreign powers inside the United States.4 As a general rule, the FISC must ?rst approve an application for a warrant before the government may initiate electronic surveillance. Prior to the PSP, NSA authority to intercept foreign communications included the Director, authority to approve the targeting of communications with one communicant within the United States if technical devices could be employed to limit collection to communications where the tar et is a non-US. erson located outsid th 4 (U) The term "pen register? is defined in 18 U.S.C. 3127 as a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided, however, that such information shall not include the contents of any communication. The term "trap and trace device" is de?ned in 18 U.S.C. 3127 as a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonany likely to identify the source of a wire or electronic communication, pmvided, however, that such infonna?on shall not include the contents of any communication. If technical devices could not be use to unit collection, the collection required approval by the Attorney General. The Director, NSA could exercise this authority, except when the collection was otherwise regulated, for example, under PISA for communications collected from a wire in the United States. (U) NSA Initially Used Existing Authorities to Enhance Signals Intelligence (SIGINT) Collection I After the September 2001 Terrorist Attacks I On 14 September 2001, NSA Director to a a SID CT Product Line request to targe Hayden's 14 September 2001 approval memorandum stated that the purpos targeting was to facilitate ?dialing analysis/contact chaining.?5 NSA Office of General Counsel (OGC) personnel concurred with the proposed activity, but provided a handwritten note to Hayden stating that chaining was permitted only on foreign numbers no U.S. number could be chainedwithout a court order. Collection of the content- was not addressed in the memorandum. However, other documentation indicates that NSA OGC and SID personnel understood that Hayden also had approved content collection and analysis. NSA OGC personnel told us that Hayden?s action was a lawful exercise of his authority under E.0-. 12333. In addition, accordin to De General Counsel, Hayden had deci 26 Se tember 2001 thai would be presumed to be of foreign intelligence value an can be provided to the Hayden told us that his actions were a ?tactical decision? and that he was operating in a unique environment because it was widely believed that more terrorist attacks on US. soil were imminent. In late September, Hayden informed Tenet that he had expanded SIGINT operations under E.O. 12333 authority. According to Hayden, Tenet later said that he had explained the expanded SIGINT operations to Vice President Cheney during a meeting at the White House. On 2 October 2001, Hayden briefed the House Permanent Select Committee on Intelligence on his decision to expand operations under E.O. 12333 and informed members of the Senate Select Committee on Intelligence by telephone. 5 - anal sis/conectchammgemeprocesor? Earn the communications sent or received by targeted entities. (U) NSA Explored Options to Improve SIGINT Collection and Address Intelligence Gaps on Terrorist Targets Hayden did not attend the meeting at the White House at which Tenet explained the NSA's expanded SIGINT operations to the Vice President. According to Hayden, Tenet told him that during the meeting the Vice President asked if the IC was doing everything possible to prevent another attack. The Vice President Speci?cally asked Tenet if NSA could do more. Tenet then discussed the matter with Hayden. Hayden told Tenet that nothing more could be done within existing authorities. In a follow-up telephone conversation, Tenet asked Hayden what the NSA could do if it was provided additional authorities. To formulate a response, Hayden met with NSA personnel, who were already working to ?ll intelligence gaps, to identify additional authorities to support SIGINT collection activities thatwould be Operationally useful and technically feasible. In particular, discussions focused on how NSA might bridge the ?international gap,? collection of international communications in which one communicant was within the United States. (U) In the days immediately after 11 September 2001, the House Permanent Select Committee on Intelligence asked NSA for technical assistance in drafting a proposal to amend FISA to give the President authority to conduct electronic surveillance without a court order to obtain foreign intelligence information. On 20 September 2001, the NSA General Counsel wrote to White House Counsel Gonzales asking if the preposed amendment to FISA had merit. We found no record of a response to the SA General Counsel's writing and could not determine why the proposal to amend FISA was not pursued at that time. (U) Hayden said that, in his professional judgment, NSA could not address the intelligence gap using FISA. The process for obtaining FISC orders was slow; it involved extensive coordination and separate legal and policy reviews by several agencies. Although FISA's emergency authorization provision permitted 72 hours of surveillance before obtaining a court order, it did not allow the government. to undertake surveillance immediately. Rather, the Attorney General had to ensure that emergency surveillance would sails the standards articulated in FISA and be acce - table to the FISC. PPROVED FOR PUBLIC RELEASE (U) lmpedlments to SIGINT Collection Against Terrorist Targets Were Discussed With the White House Hayden recalled that, after consulting with NSA personnel, he discussed with the White House how ISA constrained NSA collection of communications carried on a wire in the United States. Hayden explained that NSA co'uld not collect from a wire in the United States, without a court order, content or metadata from communications that originated and/or terminated in the United States. Hayden also said that communications metadata do not have the same level of constitutional protection as the content of communications and that access to metadata concerning communications having one end in the United States would signi?cantly enhance analytic capabilities. Hayden suggested that the ability to collect communications that originated or terminated in the United States without a court order would increase speed and agility. After two additional meetings with Vice President Cheney to discuss ?u'ther how NSA collection capabilities could be expanded along the lines described at the White House meeting, the Vice President told Hayden to work out a solution with Counsel to the Vice President David Addington. (U) Authorization of the President's Surveillance Program According to Hayden, Addington drafted the ?rst Presidential Authorization of the PSP. Hayden characterized himself as the ?subject matter expert,? and he said that no other NSA personnel, including the General Counsel, participated in drafting the authorization. Hayden also said that personnel had not been involved in his discussions with Addington concerning Presidential authorization of the PSP. The PSP came into existence on 4 October 2001, when President Bush signed the Presidential Authorization dra?ed by Addington. The authorization was entitled: Presidential Autlzorizationfor Speci?ed Electronic Surveillance Activities during a Limited Period to Detect and Prevent Acts of Terrorism within the United States. Between 4 October 2001 and 8 December 2006, President Bush signed 43 authorizations, exclusive of modi?cations and other pro gram?related memoranda to the Secretary of Defense. (U) SIGINT Activities Authorized Under the Program The 4 October 2001 Presidential Authorization directed the of Defense to 65W The ?rst Presidential Authorization allo intercept the content 0 any communication, including those to, from, or exclusively within the United States, where probable cause existed to believe one of the communicants was engaged in international terrorism. The authorization also allowed the NSA to acquire telephony and Internet metadata where one end of the communication was outside the United States or neither communicant was known to be a US. citizen. For telephone calls, metadata generally referred to ?dialing-type information? (the originating and terminating telephone numbers, and the date, time, and duration of the call), but not the content of the call. For Internet communications, metadata generally referred to the ?t The Secretary of Defense directed NSA, in writing, on 8 October 2001 to execute the authorization to conduct speci?ed electronic surveillance on targets related to ?international terroris .5 Because the surveillance was conducted in the United States, includeddcommunications into or out of the United States, and a subset of these communications was to or from persons in the United States, the surveillance otherwise would have required a ISC order. NSA was also allowed to retain, process, analyze, and disseminate intelligence from communications acquired under the Presidential Authorization. In addition to allowing the interception of the content of communications into or out of the United States, paragraph of the first Presidential Authorization alIOWed NSA to intercept the content of purely domestic communications. Hayden told us he did not realize this until Addington speci?cally raised the subject during APPROVED FOR PUBLIC RELEASE a meeting to discuss renewing the authorization. According to Hayden, he told Addington that NSA would not collect domestic communications because NSA is a foreign intelligence agency, its infrastructure did not support domestic collection, and he would require such a high evidentiary standard to justify intercepting purely domestic communication that such cases might just as well go to the ISC. (U) Content of the Presidential Authorizations and Department of Justice Certi?cation as to Form and Legality {8169839 Each of the Presidential Authorizations included a ?nding to the effect that terrorist groups of global reach possessed the intent and capability to attack the United States, that an extraordinary emergency continued to exist, and that these circumstances constituted an urgent and compelling governmental interest permitting electronic surveillance within the United States for counter-terrorism purposes, without judicial warrants or court orders. The primary authorities cited for the legality of the electronic surveillance and related activities were Article II of the Constitution and the Authorization for Use of Military Force Jo int Resolution (AUMF). The President also noted hisintention 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." Ashcroft certi?ed the ?rst Presidential Authorization as to "form and legality" on 4 October 2001. According to NSA records, this was the same day that Ashcroft was read into the PSP. There was no legal requirement that the Presidential Authorizations of the PSP be certi?ed by the Attorney General or other of?cials. Former senior official Patrick F. Philbin told us he thought one purpose sense of legitimacy so that it not "look like a rogue Principal-Deputy and Acting Assistant Attorney General Steven G. radbury tol us at the certi?cations served as of?cial con?rmation that had determined that the activities carried out under the program were lawful. 4 Gonzales told us that approval of the program as to form and legality was not required as a matter of law, but he believed that it "added value" to the Presidential Authorization for three reasons. First, NSA was being asked to do something it had not done before, and it Was important to assure the NSA that the Attorney General had 110 APPROVED FOR PUBLIC RELEASE hird, for "purely political considerations,? the Attorney General's approval of the program would have value "prospectively" in the event of Congressional or inspector general reviews of the program. (U) The Presidential Authorizations were issued at intervals of approximately 30 to 60 days. Bradbury said that the main reason for periodically reauthorizing the program was to ensure that the Presidential Authorizations were reviewed frequently to assess the program's value and effectiveness. As the period for each Presidential Authorization drew to a close, the DCI prepared a threat asseSSment memorandum for the President describing the current state of potential terrorist threats to the United States. (U) The Threat Assessment Memorandums Supporting Presidential Authorization of the Program {Salem-)- From October 2001 to May 2003, the CIA prepared the threat assessment memorandums that supported Presidential authorization and periodic reauthorization of the PSP. The memorandums documented the current threat to the U.S. homeland and to U. S. interests abroad from al-Qa?ida and affiliated terrorist organizations. The first threat assessment memorandum?The Continuing Near-Term 172mm ?'om Usoma Bin Ladin? Was signed by the DCI on 4 October 2001.7 Subsequent threat assessment memorandums were prepared every 30 to 60 days to correspond with the President's reauthorizations. {seess} The DCI Chief of Staff, John H. Moseman, Was the CM focal point for preparin According to Moseman, he directed the CIA, to prepare objective appraisals of the current terrorist threat, focusing primaril on threats to the homeland, and to document those appraisals in a memorandum. drew upon all sources of intelligence in preparing their threat assessments. Each of the memorandums focused primarily on the current threat situation and did not routinely provide information concerning previously reported threats or an assessment of the PSP's utility in addressing previously reported threats. {814151313} After- completed its portion of the memorandums, Moseman added a paragraph at the end of the memorandums stating that the individuals and organizations involved in global terrorism (and discussed in the memorandums) possessed the capability and intention to undertake ?irther terrorist attacks within the United States. Moseman recalled that the paragraph was provided to him initially by either Gonzales or Addington. The paragraph recommended that the President authorize the Secretary of Defense to employ within the United States the capabilities of including but not limited to SIGINT capabilities, to collect foreign intelligence by electronic surveillance. The paragraph described the types of communication and data that would be collected and the 7 (U) The title of the threat assessment memorandums was changed to 1712 Global War Against Terrorism in June 2002. circumstances under which they could be collected. The draft threat assessment randums were reviewed by CIA Of?ce of General Counsel attorneys assigned to and CIA Acting General Counsel (Principal Deputy General Counsel), John A. Rizzo. Rizzo told us that the draft memorandums Were generally suf?cient, but there were occasions when, based on his experience with previous memorandums, he thought that draft memorandums contained insuf?cient threat information or did not present a corn elling case for reauthorization of the PSP. In such instances, Rizzo would request thatiprovide additional available threat information or make revisions to the draft memorandums. The threat assessment memorandums were then signed by the DCI and forwarded to the Secretary of Defense to be co-signed. Tenet signed most of the threat memorandums prepared during his tenure as DCI. There were no occasions when the DCI or Acting DCI withheld their signature from the threat assessment memorandums. The threat assessment memorandums were reviewed by DoTs OLC to assess whether there was "a suf?cient factual basis demonstrating a threat of terrorist attacks in the United States for it to continue to be reasonable under the standards of the Fourth Amendment for the President to [continue] to authorize the warrantless searches involved? in the program. OLC then advised the Attorney General whether the constitutional standard of reasonableness had been met and whether the Presidential Authorization could be certi?ed as to form and legality. After review and approval as to form and legality by the Attorney General, the threat assessment memorandums were delivered to the White House to be attached to the PSP reauthorization memorandums signed by the President. ibility for drafting the threat assessment memorandums was transferred ?ow to the newly-established Terrorist Threat Integration Center in May 2003. This responsibility was retained by TTIC's successor organization, NCTC. The DCI continued to sign the threat assessment memorandums through 15 April 2005. Subsequent memorandums were signed by the Director of National Intelligence or his designee. (U) Early Revisions to the Presidential Authorizations On 2 November 2001, with the ?rst authorization set to expire, President Bush signed a second Presidential Authorization of the PSP. The second authorization cited the same authorities in support of the President's actions, principally the Article 11 Commander-in?Chief powers and the AUMF. The second authorization also cited the same ?ndings of a threat assessment concerning the magn' of otential - - and the likelihood of their occurrence in the ?lture. authorization for the PSP. (U) Of?ce of Legal Counsel Memorandums Supporting Legality of the Program OLC Deputy Assistant Attorney General John Yoo was reaponsible for drafting the ?rst series of legal memorandums supporting the PSP. Yoo was the only OLC of?cial read into the PSP from the program's inception until he left Do] in May 2003. 112 A APPRVED OR PUBIC RELEASE I ?1 During Yoo?s tenure at he was one of only three of?cials read into the PSP. The other two were Ashcroft and Baker. OLC Assistant Attorney General Jay S. Bybee, Yoo?s direct supervisor, was never read into the program. Before the President authorized the PSP on 4 October 2001, You had prepared a memorandum evaluating the legality of a hypothetical electronic surveillance program within the United States to monitor communications of potential terrorists. His memorandum, dated 17 September 2001, was addressed to Deputy White House Counsel Timothy E. Flanigan and was entitled Constitutional Standards on Random Electronic Surveillance for Counter?Terrorism Purposes. Yoo ed a more extensive version of the ndum dated 4 October 2001, for Gonzales. i3 APPROVED FOR PUBLIC RELEASE '3 hi hJ/i?sl? - [in ?st/NF)- The ?rst OLC memorandum explicitly addressing the legality of PSP was not drafted until after the program had been formally authorized by the President and after Ashcroft had certi?ed the program as to form and legality. The ?rst OLC opinion directly supporting the legality of the PSP was dated 2 November 2001, and was drafted by Yoo. Yoo acknowledged at the outset of his 2 November memorandum that "[b]ecause of the highly sensitive nature of this subject and the time pressures involved, this memorandum has not undergone the usual editing and review process for opinions that issue from our Yoo acknowledged in his 2 November 2001 memorandum that the ?rst Presidential Authorization was "in tension with Yoo stated that FISA "purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence." But Yoo then opined that "[s]uch a reading of FISA would be an unconstitutional infringement on the President's Article II authorities." Citing advice of OLC and DoJ's position as presented to Congress during passage of the USA PATRIOT Act several weeks earlier, Yoo characterized FISA as merely providing a "safe harbor for electronic surveillance," adding that it "cannot restrict the President?s ability to engage in warrantless searches that protect the national security." Regarding whether the activities conducted under the PSP could be conducted under FISA, Yoo described the same potential impediments that he had cited in his 4 October memorandum. Noting that the Presidential Authorization could be viewed as a violation of FISA's civil and criminal sanctions in 50 U.S.C. 180940, Yoo opined that in this regard FISA represented an unconstitutional infringement on the President's Article II powers. According to Yoo, the ultimate test of whether the government may engage in warrantless electronic surveillance activities is whether such conduct is consistent with the Fourth Amendment, not Whether it meets the standards of FISA. APPROVED FOR PUBLIC RELEASE Yoo wrote that reading FISA to restrict the President?s inherent authority to conduct foreign intelligence surveillance would raise? grave constitutional questions which, under the doctrine of constitutional avoidance would require resolving the issue in a manner that reserves the President?s ?[U]nless Congress made a clear statement in F?le that it sought to restrict presidential authority to conduct warrantiess searches in the national security area?which it has not?then the statute must be construed to avoid such a reading." Yoo's 2 November 2001 memorandum dismissed Fourth concerns to the extent that the authorized collection involved non?US. persons outside the United States. Regarding thOSe aspects of the program that involved interception of the international communications of US. persons within the United States, You asserted that Fourth Amendment jurisprudence allowed for searches of persons crossing U.S. international borders and that interceptions of communications into or out of the United States fell Within the "border crossing exception." Yoo further opined that electronic surveillance in "direct support of military operations" did not trigger constitutional protection against illegal searches and seizures, in part because the Fourth Amendment is primarily aimed at curbing law enforcement abuses. Finally, You wrote that the electronic surveillance described in the Presidential Authorizations was "reasonable" under the Fourth Amendment and therefore did not require a warrant, in this situation the overnment's national security interest outweighed the individual's privacy interest. 115 Wm October 2002, at Ashcro?'s request, Yoo drafted another opinion concerning the PSP. The memorandum, dated 11 October 2002, reiterated the same basic anal sis as Yoo's 2 Novem 2001 (U) IMPLEMENTATION OF THE SURVEILLANCE PROGRAM (U) NSA Implementation 4 October 2001, Hayden receiVed the initial Presidential Authorization of the PSP and briefed the NSA SIGINT Director and other ke NSA erso 1 authorization He also said that the NSA General Counsel ha? revrewed the authorization and concluded that the authorized activities were legal. 06 APPROVED FOR PUBLIC RELEASE NSA be an to collect the content of tele hone calls under PSP authority in October 2001. 117 APPROVED FOR PUBLIC RELEASE WTelephone and Internet Communications Content Collection and Analysis Content collection and analysis under the PSP was conducted in the same manner as collection and analysis conducted previously by the NSA under E.O. 12333 authority. NSA management applied standard minimization and specially designed procedures to task domestic selectors such as telephone numbers and e-mail addresses. Selectors had to meet two criteria before being tasked under the PSP: the purpose of the collection had to be to prevent and detect terrorist attacks in the United States; and the selector had to be linked to al? a?ida an associate or international terrorism. collection managers were responsible for ensuring that telephony and Internet communications selectors were appropriately added or removed ?om collection. Content collection for domestic selectors was sometimes approved for specific 18 APPROVED FOR PUBLIC RELEASE WW time periods. Data collected under the PSP were stored in compartmented NSA databases, and access to the databases was strictly controlled. The majority of targets for content collection under the PSP were forei telephone numbers and Internet communications addresses. In 2008, NSA reported that foreign telephone numbers and in excess 0 foreign Internet communications addresses had been targeted from October 2001 throu December 2006. NSA reported in 2008 the domestic telephone numbers and domestic Internet communications addresses were targeted for PSP content collection from October 2001 to January 2007. Although targeted domestic telephone numbers and Internet communications addresses were located in the United States, they were not necessarily used by US. citizens. {8.1.4513}- PSP program of?cials told us that the NSA did not seek to collect domestic communications under the PSP. However NSA managers said that there are no readily available technical means within th to guarantee that no domestic calls will be collected. Issues of this kind inevitably arise from time to time in other SIGINT erations, and are not unique to the PSP. Over the life of the program, the NSA reported incidents of unintentional collection of domestic communications or non-targeted communications. In such cases, the NSA IG determined that personnel followed established procedures in reporting the incidents, adjusting collection, and purging unauthorized collection records from NSA databases. NSA analysis of content collected under the PSP involved the same practices and techniques used in analyzing information from other SIGINT operations. Telephone content was made available to NSA through a voice processing system; Internet communications content was available ?om the database in which it was stored. Analysis involved more than listening to, or reading the content of, a communication and transcribing and disseminating a transcript. Analysis also involved coordinating and collaborating with other IC applying previous knowledge of the target, and integrating other relevant intelligence. 19 Telephony and Internet Metadata Collection and Analysis personnel used t?b?t? metadata to pertorm contact aimng. Although the NSA had the capability to collect bulk: telephony and Internet metadata before the PSP, collection was limited because the NSA was not authorized to collect metadata ?'om a wire inside the United States without a court order when one end of the communication Was in the United States. NSA could "chain" to, but not through, domestic selectors. Access to large amounts of metadata is required for effective contact chaining, and the PSP increased the data available to NSA and allowed-them to perform more thorough contact chaining. W?though NSA could search bulk-collected metadata under the PSP, the searches were limited to targets that were approved under the standards set forth in the Presidential Authorizations. As such, only a small fraction of the metadata collected under the PSP was ever accessed. In August 2006, the NSA estimated that 0.000025 percent of the telephone records in the PSP database (or one of every four million records) could be expected to be seen by NSA through chaining analysis. WNSA conduct contact chaining by entering a target selector?a telephone number or Internet communication address?in a specialized metadata analysis tool, which searches the metadata and identi?es contacts between the selector and other telephone numbers or Internet communications addresses. The resultin contact is anal zed for intelli ence and to develo ough the Presidential Authorizations did not prohibit chaining more: . i than two degrees of separation from the target, NSA determined that it was not analytically useful to do so. An automated process was created to alert and automatically chain new and potentially reportable telephone numbers using What was called an ?alert list.? Telephone numbers 0 look for contacts. en NSA personnel identi?ed erroneous metadata collection?usually caused by technical problems or inappropriate application of the authorization?they were directed to report the Violation or incident thrdugh appropriate channels and to delete the collection from all NSA databases. NSA reported three such violations early in the program and took measures to correct them. - (U) NSA Reporting From the President's Surveillance Program PSP information was disseminated in-types of reports: ad ta 1 siS' content re orts which rovided NSA analysis Tippers were sent to the ?rst and the urn oy e-mau on a secure communications network. Some tippers contained "tear line? information that allowed for wider distribution of a sanitized 'on of the information. From October 2001 throu Janu 2007, the NSA issue tippers to the FBI and the CIA.B 21! APPROVED FOR PUBLIC RELEASE (U) NSA Managerial Structure and Oversight of the President's Surveillance Program Analysis and reporting associated with the PSP was conducted within SE) at SA's Fort Meade, Maryland headquarters. PSP activities were not conducted at NSA ?eld sites. The Director and Deputy Director of NSA exercised senior operational control and authority over the program. The individual who was SIGINT Director in 2001 told us that, aside from ensuring that the PSP had appropriate checks and balances, she left direct management of the program to the NSA Director, the Deputy Director, and the Of?ce of General Counsel. She noted that Hayden took personal responsibility for the program and managed it By 2004, speci?c managerial authorities concerning PSP collection, analysis, and reporting activities had been delegated to the Director. The Director further delegated managerial authority to the PSP program manager and mission execution responsibilities to the Chief of the CT Product Line. The PSP program manager position was restructured to provide the incumbent authority and responsibility for oversight of PSP 22 4mm APPROVED FOR PUBLIC RELEASE activity across SID, and the PSP program manager was provided additional staff. Over the life of the program, there were ?ve PSP program managers, who reported directly to the SIGJNT Director or the Chief of the CT Product Line. su orted the eration of the PSP with approximatel from ?scal ears Ys 2002 throu 2006. Funds were used for the acquisition or (U) NSA PSP Costs From FY 2002 through FY 2006 (dollars in thousands, personnel costs not included) (U) NSA Management Controls to Ensure Compliance With Presidential Authorizations information and ensure WNSA management took steps to pro compliance with the Presidential Authorizations. 24 APPROVED FOR PUBLIC RELEASE t; rm r? rim rm st The NSA General Counsel was read into the PSP on 4 October 2001, the day the ?rst Presidential Authorization was signed. On 6 October 2001, the General Counsel provided Hayden and his deputy talking points for use in brie?ng NSA personnel on. the new program's authorities. The talking points included the fact that Hayden had directed the NSA General Counsel and the NSA Associate General Counsel for Operations to review and oversee PSP activities. The NSA Associate General Counsel for Operations provided most of the program oversight before the NSA IG was read into the PSP in August 2002. The Associate General Counsel for Operations oversaw program implementation, reviewed proposed target packages for compliance with the authorizations, and coordinated program-related issues with Do]. (U) NSA Inspector General Oversight of the Program NSA IG and other NSA Of?ce of Inspector General personnel were read into the PSP beginning in August 2002. Over the life of the program, the NSA IG conduoted: 0 Three investigations in response to speci?c incidents and violations of the Presidential Authorizations to determine the cause, effect, and remedy. ?3 Ten reviews to determine the adequacy of management controls to ensure compliance with the authorization and related authorities, assess the mitigation of risk associated with program activities, and identify impediments to meeting the requirements of the authorizations. WTen of the NSA IG reports included a total otlrecommendations to NSA management to strengthen internal controls and procedures Over the PSP. The NSA IG identi?ed no intentional misuse of the PSP. Signi?cant ?ndings from NSA IG reviews of the PSP include the following: a In 2005, the NSA IG foundlerrors when comparing records of domestic telephone and communications selectors approved for PSP content collection with selectors actually on collection. The errors included selectors that were not removed from collection after being detasked, selectors that were not put on collection when approved, and selectors that were mistakenly put on collection due to typographical errors. NSA management took steps to correct the errors and establish procedures to reconcile approved selectors with selectors actually on collection. 0 During a 2006 review, the NSA IG found that all items in a randomly selected sample of domestic selectors met Presidential Authorization criteria. Using a statistically valid sampling methodology, the IG concluded with 95 percent confidence that 95 percent or more of domestic APPROVED FOR PUBLIC RELEASE selectors tasked for PSP content collection were linked to al-Qa?ida, its associates, or international terrorist threats inside the United States. In addition to NSA IG report recommendations, in March 2003, the NSA IG recommended to Hayden that he re ort violations of the Presidential Authorizations to the President. The NSA IG prepared Presidential noti?cations for the NSA Director concerning violations of the authorizations. in January 2007, violations involving collection activities conducted under PSP authority as well as violations related to former PSP activities that were operating under FISA authority were reported quarterly to the President?s Intelligence Oversight Board, through the Assistant to the Secretary of Defense for Intelligence Oversight. ed in late 2008 that ??om a roximatel All related collection records were purged from NSA databases 2004; therefOre, it was not possible to determine the exact nature and extent of the collection. NSA OIG will close out this incident in its upcoming report to the President?s Intelligence Oversight Board. On 15 January 2009, the Do] reported to the FISC that the NSA had been using an "alert list" to compare FISA-authorized metadata against telephone numbers associated with counterterrorism targets tasked by the NSA for SIGINT collection. The NSA had reported to the FISC that the alert list consisted of telephone numbers for which NSA had determined the existence of a reasonable, a us icion that the numbers were related to a terrorist organization associated ?tub In fact, such a determination had not been made for the m?aj ority of the selectors on the alert list. The NSA IG reported this incident to the President?s Intelligence Oversight Board, and has provided updates as required. The alert list and a detailed NSA 60-day review of processes related to the business records FISC order were the subject of several recent submissions to the FISC and of NSA brie?ngs to the Congressional oversight committees. (U) Access to the President's Surveillance Program 9E 26 APPROVED FOR PUBLIC RELEASE (U) PSP Cumulative Clearance Totals (213 of 17 January 2007nun! HI I. of the PSP was strictly controlled and limited at the express direction of the White House. Hayden eventually delegated his PSP clearance approval authority for NSA, FBI, and CIA operational personnel to the NSA PSP program manager. Hayden was required to obtain approval from the White House to clear members of Congress, FISC Judges, the NSA IG, and others. {81415139- The NSA IG was not read into the PSP until August 2002. According to the NSA General Counsel at the time, the President would not allow the IG to be briefed prior to that date. Although Hayden did not recall why the IG had not been cleared earlier, he thought that it would have been inappropriate to clear him when the length of the program was rmknown and before operations had stabilized. By August 2002, Hayden and the NSA General Counsel wanted to institutionalize PSP oversight with the involvement of the NSA IG. Hayden recalled having to "make a case" to the White House to have the NSA IG read in. The ODNI IG found that ODNI oversight of the PSP was limited by ODNI OVersight personnel not being provided timely access to the program. (U) Congressional Briefings on the Program 25 October 2001, Hayden conducted a brie?ng on the PSP for the Chairman and the Ranking Member of the House Permanent Select Committee on Intelligence, Nancy P. Pelosi and Porter J. Goss; and the Chairman and the Vice Chairman of the Senate Select Committee on Intelligence (SSCI), D. R'obert Graham and Richard C. Shelby. Between 25 October 2001 and 17 January 2007, Hayden and current NSA Director Alexander, sometimes supported by other NSA personnel, conducted APPROVED FOR PUBLIC RELEASE 'ii?i gress and their staff. Hayden told us that during the many PSP brie?ngs to members of Congress, no one ever suggested that the NSA should stop the program. Hayden emphasized that he did more than just ??ip through slides? during the brie?ngs, which lasted as long as attendees had questions. 49 brie?ngs to members of Con (U) Foreign Intelligence Surveillance Court Brie?ngs on the Program On 31 January 2002, the FISC Presiding Judge Royce Lamberth became the ?rst member of the couit to be read into the PSP. He was briefed on the the head of DoJ?s Office of Intelligence Policy and Review Lamberth?s brie?ng was conducted at the 1.10.] and was ller, Yoo, and Baker. Ashcroft provided Lamberth a brief summary of the President?s decision to create the PSP, and Ashcroft stated that he had determined, based upon the advice of John You, an attorney in DoJ?s Of?ce of Legal Counsel (OLC), that the President?s actions were lawful under the Constitution. Ashcroft also emphasized to Lamberth that the 180 was not being asked to approve the program. Following Ashcroft?s summary, Hayden described for Lamberth how the program functioned Yoo discussed legal aspects of the program, and Baker proposed procedures for handling international terrorism PISA applications that contained PSP-derived information. For the next four months, until the end of his term in May 2002, Lamberth was the only FISC judge read into the PSP. Judge Colleen Kollar-Kotelly succeeded Lamberth as the FISC Presiding Judge and was briefed on the PSP on 17 May 2002. The brie?ng was similar in form and substance to that provided to Lamberth. In response to several questions from Kollar?Kotelly about the scope of the President?s authority to conduct warrantiess surveillance, prepared a letter to Kollar-Kotelly, signed by Yoo, that, according to Kollar?Kotelly, ?set out a broad overview of the legal authority for conducting [the but did not analyze the speci?cs of the program.? The letter, which Kollar-Kotelly reviewed at the White House but was not permitted to retain, essentially replicated Yoo?s 2 November 2001 memorandum regarding the legality of the PSP. Kollar-Kotelly was the only sitting FISC judge read into the PSP until January 2006, when the other FISC judges were read in. operationally, Baker was read into the PSP only a?er he came upon ?strange, unattributed? language existence of a I I were rea in. The IG behaves that not having OIPR PSP, while program?derived information the FBI and ?nding its way into FISA his successor, KolJar-Kotelly, of?cials and members of the FISC read into the was being disseminated as investigative leads to 27 2% APPROVED FOR PUBLIC RELEASE applications, put at risk the DoJ?s important relationship with the FISC. The Do] IG agrees with Baker?s assessment that, as the government?s representative before the FISC, good relations between the D01 and the FISC depend on candor and tramparency. (U) FBI Participation in the President's Surveillance Program WAS a user of PSP-derived information, the FBI disseminated leads? tippers?to FBI ?eld of?ces. Tippers primarily consisted of domestic telephone numbers and Internet communications addresses that NSA .had determined through metadata analysis were connected to individuals invoIVed with al?Qa?ida or its af?liates. Domestic telephone ntunbers represented the overwhelming majority of PSP-derived information contained in tippers. Tippers also provided information derived from content collection under the PSP. The principal objective during the earliest months of the PSP was to disseminate program information to FBI ?eld of?ces for inVestigation While protecting the source of the information and the methods used to collect it. The FBI initially assigned responsibility for this to its Telephone Analysis Unit (TAU), which develOped procedures to disseminate informa eports in a non-compartmented, Secret-level format. The resultin Electronic Communications (ECs) included restrictions on how the information could be used, FBI field of?ces were to use the information ?for lead purposes only? and not use the information in legal or judicial proceedings. participation in the PSP evolved over time as the program became less a temporary response to the September ll attacks and more a permanent surveillance capability. ation in the program, the FBI To im rove the effective initiated the% pro ect in to manage its involvement in the PSP. In February - 6 FBI assigned a team of FBI personnel?"Team IO"?to work ?ill-time at the NSA to manage the participation in the program. Team 10?s primary reSponsibility was to disseminate PSP information through ECs to FBI ?eld offices for investigation or other purposes. However, over time, Team 10 began to participate in the PSP in other ways. For example, Team 10 occasionally submitted telephone numbers and Internet communications addresses to the NSA to be searched against the bulk metadata collected under the PSP. The NSA conducted independent analysis to determine Whether telephone numbers or Internet communications addresses submitted by Team 10 met the standards established by the Presidential Authorizations. Team 10 also regularly contributed to PSP process by reviewing draft reports and providing relevant information from FBI databases. FBI not required to inVestigate every tipper 7 by Team 10 under th project. Rather, the type of lead that the EC "discretionary," or "for information"?drove the field of?ce?s response to a tipper.9 The vast maj BI investigative activity related to PSP information involved responding to% telephone number tippers that assigned action leads. Team 10 generally assigned action leads for telephone numbers that were not already known to the FBI or telephone numbers that Team 10 otherwise deemed a high priority, such as a number that had a relationshi to a major FBI investi ation. From approximately? when?was established, toh action leads instructed ?eld of?ces to Obtain subscriber information for the telephone numbers within its jurisdiction and to conduct any "logical investigation to determine terrorist Connections." Some agents complained that action leads lacked guidance about how to make use of the tippers, which was of particular concern because agents were not con?dent that?communications provided suf?cient predication to open national security investigationsf Wes to FBI procedures in 2003 addressed some FBI agents' concerns. FBI Headquarters assumed resPonsibility from ?eld of?ces for issuing national security letters SLs) to obtain subscriber information about PSP- ti ed telephone numbers and Internet conumuiications addresses. the Attorney General issued new guidelines for FBI national security investigations that created a new category of investigative activity called a "threat assessment." Under a threat assessment, FBI agents are authorized to investigate or collect information on individuals, groups, and organizations of possible investigati ut opening a preliminary or full national security investigation. Beginnin action leads assigned metadata tippers instructed ?eld of?ces to conduct threat assessments and a vise that FBI headquarters would issue NSLs to obtain subscriber information. In general, an FBI threat assessment involved searching several FBI, public, and commercial databases for information about the tipped telephone number, and requesting that various state and local government entities conduct similar searches. Sometimes these searches identi?ed the subscriber to the telephone number before FBI Headquarters obtained the information with an NSL. In other cases, the threat assessments - continued after the ?eld of?ce received the NSL results. The_leads frequently were closed after conducting a threat assessment interview with the subscriber and determining that there was no nexus to terrorism or threat to national security. In other cases, the leads were closed based solely on the results of database checks. Beginning_ FBI ?eld o?ces were required to report the results of their threat assessments to FBI headquarters. FBI ?eld of?ces typically reported all of the information that was obtained about the tipped telephone numbers, including the details of any subscriber interviews, and then stated that the o?ce had determined that the An action lead instructs an FBI ?eld of?ce to take a particular action in response. A discretionary lead allows the ?eld of?ce to make a determination whether the information provided warrants investigative action. A ?eld of?ce is not expected to take any speci?c action on a for information lead. 29 3Q telephone number did not have a nexus to terrorism and considered the lead closed. Much less frequently, ?eld of?ces reported that a preliminary investigation was opened. Regardless of whether any links to international terrorism were identi?ed in a threat assessment, the results of the threat assessments and the information that was collected about subscribers generally were reported to FBI headquarters and uploaded to FBI databases. (U) CIA Participation in the President's Surveillance Program CIA and targeters, as PSP consumers, re nested information ?'om r0 3 am and utilized . in their anal ses. mw?gmm m0?. Dm>OmnE< 32 (U) NCTC Participation in the President's Surveillance Program The ODNI IG found that the primary role in the PSP was the preparation of the threat assessments that summarized the al?Qa'ida threat to the United States and were used to support periodic reauthorization of the program. The ODNI IG- found that the threat assessments were drafted by experienced NCTC personnel who prepared the documents in a memorandum style following an established format. The ODNI IG also determined that the ODNI threat assessments were prepared using evaluated intelligence information chosen from a wide variety of 10 sources. ODNI personnel said that during the period when the ODNI prepared the threat assessments, the IC had access to ?illy evaluated intelligence that readily supported an assessment that al?Qa'ida remained a signi?cant threat to the United States. The NCTC NCTC said that they handle NSA surveillance information, including PSP information, consistent with the standard rules and procedures for handling NSA intelligence information including minimization of US person identities. On those occasions when the NCTC knew that a particular NSA intelligence product was deriVed from the PSP, the told us they reviewed program information in the same manner as other incoming NSA intelligence products. Ifappropriate, NCTC then incorporated the PSP information into analytical products being prepared for the Director of National Intelligence (DNI) and other senior intelligence officials. They identi?ed the President's Terrorism Threat Report and the Senior Executive Terrorism Report as examples of the types of ?nished intelligence products that would, at times, contain PSP information. APPROVED FOR PUBLIC RELEASE (U) The President's Surveillance Program and the Foreign Intelligence Surveillance Court initially with the concurrence and later at the court?s direction, developed and implemented procedures?referred to as ?scrubbing? procedures?to account for and make the court aware of instances when PSP?derived information was included in FISA applications. Lamberth required that all FISA applications that contained PSP-derived information, or that would result in simultaneous collection against particular targets under both the PSP and a FISC order, be ?led with him only. Baker told us that Lamberth wanted to be informed of applications that contained PSP information and of dual coverage situations. According to Baker, the scrubbing procedures were a means of meeting his ethical duty of candor to the FISC without disclosing the existence of the PSP to nucleated judges. Dol effectuated the scrubbing procedures by compiling lists of information contained in initial and renewal FISA applications that was attributed to the NSA and of all facilities targeted for electronic surveillance in the applications. These lists were sent to the NSA to determine whether any of the NSA-attributed information was PSP-derived and whether any of the facilities also were targeted under the PSP. The NSA communicated the results back to which then ?led the applications with the FISC consistent with the scrubbing procedures. Kcllar-Kotelly continued the procedures that had been developed by Baker and agreed to by Lamberth for handling FISA applications that contained PSP- derived information. However, Kollar-Kotelly required Do] to excise ?om FISA applications any information obtained or derived from the PSP. But Kollar-Kotelly also instructed Baker to alert her to any instances where an application's basis for the requisite probable cause showing under FISA was weakened by excising PSP information. In such cases, Kollar?Kotelly would then assess the application with the knowledge that additional relevant information had been excised. Kollar-Kotelly also instructed Dol to discontinue the practice ed under Lamberth of includin in a lications a descriptive phras associated with as a means 0 mcuoanng mat Iacmues targe - phcations were also ta'rge under the PSP. Baker told us that while Kollar-Kctelly understood that instances of dual coverage would occur, she did not want to appear to judicially sanction PSP coverage. In March 2004, Kollar?Kotelly was informed of operational changes made to the PSP following a dispute between Doll and the White House about the legal basis for certain aspects of the program. Kollar?Kotelly responded by imposing an additional scrubbing requirement to ?Lrther ensure, to the extent possible, that PSP-derived information was not included in ISA applications. The FBI, in coordination with D01 and NSA, was to determine whether a facility included in a FISA application?not just a targeted telephone number or Internet communication address?also appeared in a PSP report. Kollar?Kotelly permitted any such facility to remain in the application if it' could be ?if? 34 demonstrated that the FBI had developed, independent of the PSP, an investigative interest in the facility, or that the FBI inevitably would have identi?ed the facility in question through normal investigative steps. An OIPR of?cial who was responsible for discussing such cases with Kollar?Kotelly told us that the judge generally accepted DoJ?s assessment that there was a non?PSP investigative basis for a facility in question, or that the facility inevitably would have been discovered even in the absence of PSP-derived leads to the FBI. fS??NB?Implementing the scrubbing procedures, both under Lamberth and Kollar- Kotelly, was a complicated and time-consuming endeavor for OIPR staff. Baker, who until March 2004 was the only individual in OIPR read into the PSP, found himselfhaving to ask OIPR attorneys to compile information about their cases, and sometimes to make changes to their FISA applications, without being able to provide an explanation other than that he had spoken to the Attorney General and the ISC about the situation. Baker regularly told attorneys that they did not have to sign applications that they were not comfortable with, and, in some instances, international terrorism cases had to be reassigned for this reason. The situation was further complicated by the fact that, until August 2003, only one of the two 1501 of?cials authorized by statute to approve ISA applications? Attorney General Ashcroft and Deputy Attorney General Larry Thompson?was read into the PSP. Thompson, who served as Deputy Attorney General from May 2001 to August 2003, was never read into the PSP, despite Ashcroft?s request to the White House. Similarly, Kollar-Kotelly, who by November 2004 was handling approximatel percent of all FISA applications as a result of her requirement that scrubbed applications be ?led with her only, made requests for additional FISC judges to be cleared for the program. Kollar?Kotelly decided in November 2004 that in view of the scrubbing procedures that were in Operation, international terrorism ISA applications could be decided by other judges based on the information contained in the applications. Do], together with the FBI and the NSA, continue to apply the scrubbing procedures to international terrorism FISA applications. Since January 2006, all members of the FISC have been briefed on the PSP and all of the judges handle applications that involve the issue of PSP-derived information. Although compliance with the scrubbing procedures has been burdensome, we did not find instances when the government was unable to obtain FISA surveillance coverage on a target because of the requirement. However, the IG concluded that once the PSP began to affect the ?mctioning of the FISA process, OIPR and the ISC effectively became part of the Operations, and more OIPR staff and FISC judges should have been read into the PSP to address the impact. Instead, access to the PSP was limited for years to a single OIPR of?cial and one FISCjudgc. APPROVED FOR PUBLIC RELEASE (U) Discovery Issues Associated With the President's Surveillance Program 0.1 was aware as early as- that information collected under the PSP could have implications for DoJ?s litigation responsibilities under Rule 16 of the Federal Rules of Criminal Procedure and Brady v. Mary the discove issue was ?rst assi ed to Yoo 43.451513)- No Do] attorneys with terrorism prosecution responsibilities were read into the PSP until mid-2004, and as a result, Do] did not have access to the advice of attorneys who were best equipped to identify and examine discovery issues associated with the PSP. The IG believes that, since th 11 responses to the discovery motions involve the use of the Classmed tntormanon Procedures Act, 18 U.S.C. App. 3, to ?le exparte in camera loadings with federal courts to describe otentiall res onsive PSP-derived information. the Do] IG recommends that assess its discovery obligations regarding PSP- derived information in international terrorism prosecutions, care?illy consider whether it must re-examine past cases to see whether potentially discoverable but undisclosed Rule 16 or Brady material was collected by the NSA, and take appropriate steps to ensure that it has complied with its discovery obligations in such cases. The Do] IG also recommends that in coordination with the NSA, implement a procedure to identify PSP?derived information that may be associated with international terrorism cases QR 36 APPROVED FOR PUBLIC RELEASE currently pending or likely to be brought in the future and evaluate whether such information should be disclosed in light of the government?s discovery obligations under Rule 16 and Brady. (U) LEGAL REASSESSMENT OF THE SURVEILLANCE PROGRAM (2003 - 2004) Yoo was the sole OLC attorney who advised Ashcroft and White House of?cials on the PSP ?'om the program?s inception in October 2001 through Yoo?s resignation from in May 2003. Upon Yoo?s departure, Patrich Philbin was selected by the White House to be read into the PSP to assume Yoo's role as advisor to the Attorney General concerning the program. WSW?Philbin told us that when he reviewed Yoo?s legal memorandums about the PSP, he realized that Yoo had omitted from his analysis any reference to the ISA provision allowing the interception of electronic communications without a warrant for a period of 15 days following a Congressional declaration of war. (See 50 U.S.C. 1811.) Philbin stated that Yoo?s OLC opinions Were premised on the assumption that FISA did not expressly apply to wartime operations, an assumption that ?om Philbin?s pet-Spective u.l 3? a, APPROVED FOR PUBLIC RELEASE 1" {51 {2-3 Wm August 2003, Philbin told Ashcroft that there were problems wi the legal analysis supporting the PSP but probably not with the conclusions reached, and he therefore advised Ashcroft to continue to certify the program ?as to form and legality.? Philbin also recommended that a new OLC memorandum assessing the legality of the PSP be drafted, and with Ashcro??s concurrence he began drafting the memorandum. (U) A New Legal Basis for the Program [ls Adopted Goldsmith was sworn in as the Assistant Attorney General for OLC on 6 October 2003, replacing Bybee, who had left that position several months earlier to serve as a judge on the U.S. Court of Appeals for the Ninth Circuit. Philbin told us that he pressed hard to have Goldsmith read into the PSP, and that Addington told Philbin he would have to justify the request before Addington would take it to the President for a decision. Addington subsequently read Goldsmith into the program on 17 November 2003. After reviewing Yoo?s memorandums and Philbin?s new draft analysis of the PSP, Goldsmith eed with Philbin?s concerns about the existing legal analysis 37 38 APPROVED FOR PUBLIC RELEASE that the interception 0 did not comply with requirement to obtain judicial authorization, and did not fall within any of the exceptions to this requirement. Goldsmith later wrote in a 6 May 2004 legal memorandum reassessng the legality of the program that a proper analysis of the PSP ?must not consider FISA in isolation? but rather must consider whether Congress, by authorizing the use of military force against al?Qa?ida, also ?effectively exempts? Such surveillance from FISA. Goldsmith believed that this reading of the AUMF was correct because the AUMF authorized the President to use ?all necessary and appropriate force? against the enemy that attacked the United States on 11 September 2001, and to ?prevent any ?iture acts of intemational terrorism against the United States" by such enemy?authority that has long been recognized to include the use of SIGINT as a military tool. Alternatively, Goldsmith reasoned that even if the AUMF did not exempt surveillance under the program ?om the restrictions imposed by FISA, the question was suf?ciently ambiguous to warrant the application of the doctrine of constitutional avoidance, and therefore should be construed not to rohibit the activi .11 APPROVED FOR PUBLIC RELEASE In late 2003, Philbin and Goldsmith were the only two officials in a position to brief the Attorney General and White House officials on the status of their legal reassessment and its potential rami?cations for the operation of the program. Goldsmith advised Ashcroft that, despite concerns about the program, Ashcroft should certify the 9 December 2003 Presidential Authorization. Goldsmith later advised Ashcroft to certify the 14 January 2004 authorization as well. Goldsmith told us that he made these recommendations to Ashcroft with the caveat that although he believed .Yoo?s memorandums to be ?awed, Goldsmith had not yet concluded that the program its elf was illegal. (U) Department of Justice Officials Convey Concerns About the Program to the White House In December 2003, Goldsmith and Philbin met with Addington and Gonzales at the White House to express their growing concerns about the legal underpinnings for the program. Goldsmith said he told them that OLC was not sure the program could survive in its current form. According to Goldsmith?s contemporaneous notes of these events, these discussions did not contemplate an interruption of the program, although the White House of?cials represented that they would ?agree to pull the plug? if the problems with the program were found to be suf?ciently serious. Goldsmith told us that the White House?typically through Addington?told him ?several times? that it would halt the program if Do] found that it could not be legally supported. On 18 December 2003, Goldsmith met again with Addington and Gonzales and wrote in his notes that during this meeting he conveyed with ?more force? his ?serious doubts and the need to get more help to resolve the issue [as soon as possible]." Goldsmith told us that during this meeting he also asked to have Deputy Attorney General Comey read into the program. According to Goldsmith?s notes, Addington and Gonzales ?bristle[d]? at that suggestion. Goldsmith told us that he requested that Comey be read in because he believed he would need Comey?s assistance to help ?make the case? to the White House that the program was legally ?awed. In addition, he said he wanted Comey read in because, as the Deputy Attorney General, Comey was Philbin?s direct supervisor. Goldsmith?s efforts to gain the White House?s permission to have additional attorneys, and especially Comey, read into the program continued through January 2004. According to Goldsmith?s notes, both Addington and Gonzales pressed Goldsmith on his reason for the request and continued to eXpress doubt that additional personnel Were needed. However, in late January 2004 the White House agreed to allow Comey to be read in, and Comey was briefed into the PSP on 12 March 2004 by Hayden. 39 4:0 W) After his brie?ng, Comey discussed the program with Goldsmith, Philbin, and other of?cials, and agreed that the concerns with Yoo?s legal analysis were well- founded.12 Comey told us that of particular concern to him and Goldsmith was the notion that Yoois legal analysis entailed ignoring an act of Congress, and doing so without Congressional noti?cation. Comey told us that in earl March 2004 the sense at was that ?we can get there? with regard to albeit usin an a essive legal analysis 7 would re uire (U) Conflict Between the Department of Justice and the White House Over the Program (U) Corney told us that he met with Ashcroft for lunch on 4 March 2004 to discuss the PSP, and that Ashcroft agreed with Comey and the other officials? assessment of the potential legal problems with the program. Three hours after their lunch meeting, Ashcroft became ill and was admitted to the George Washington University Hospital.13 On 5 March 2004, Goldsmith advised Comey by memorandum that under the circumstances of Ashcroft?s medical condition and hospitalization, a ?clear basis? existed for Corney to exercise the authorities of the Attorney General allowed by law as Deputy Attorney General or Acting Attorney General. The ?cc? line of Goldsmith?s memorandum to Comey indicated that a copy of the memorandum was sent to Gonzales. On 5 March 2004?six days before the Presidential Authorization then in e?'ect was set to expire?Goldsmith and Philbin met with Ad I - II ay, Gonzales calle i bl. a rer no ULL sranng mar foo?s prior OLC opinions ?covered the program.? Philbin told us that Gonzales was not requesting a new opinion that the program itself was legal, but only a letter stating that the prior opinions had concluded that it was. lz?S?S-h?r?eefm??The other of?cials included Counsel for Intelligence Policy Baker, Counselor to the Attorney General Levin, and Comey?s Chief of Staff Chuck Rosenberg. Both Levin and Rosenberg had been read into the PSP while at the FBI. Comey also discussed DoJ?s concerns about the legality of the program with FBI Director Mueller on 1 March 2004. Mueller told us that this was the ?rst time he had been made aware ofDoJ?s concerns. ?3 CU) Ashcroft?s doctors did not clear Ashcroft to resume his duties as Attorney General until 31 March 2004. APPROVED FOR PUBLIC RELEASE As a result of Gonzales?s request, Goldsmith, Philbin, and Comey re? examined Yoo?s memorandums with a view toward determining whether they adequately described the actual collection activities of the NSA under the Presidential Authorizations. They concluded that the memorandums did not. According to Goldsmith, the conclusion that Yoo?s memorandums failed to accurately describe, let alone provide a legal analysis of? meant that OLC could not tell the White House that the proWuthority of those legal memorandums. On 6 March 2004, Goldsmith and Philbin, with Comey?s concurrence, Wei 'te House to meet with Addington and Gonzales their conclusions a to but smu Addington and Gonzales ?reacted calmly and said they would get back with us.? On Sunday, 7 March 2004, Goldsmith and Philbin met again with Addington and Gonzales at the White House. According to Goldsmith, the White House of?cials informed Goldsmith and Philbin that they dis agreed with their interpretation of Yoo?s memorandums and on the need to change the scope of the collection under the PSP. On 9 March 2004, Gonzales called Goldsmith to the White House in an effort to persuade him that his criticisms of Yoo?s memorandum incorrect and that Yoo?s (1 sufficient le a1 su ort for the program. After Goldsmith stated that he disagreed, Gonzales next argued tor a u-oay cringe LU get past the expiration of the current Presidential Authorization on 11 March 2004. Gonzales reasoned that Ashcroft, who was still hospitalized, was not in any condition to sign a renewal of the authorization, and that a ?3 0-day bridge? would move the situation to a point where Ashcro?: would be well enough to approve the program. Goldsmith told Gonzales he could not agree to recommend an extension because aspects of the program lacked legal support. At noon on 9 March, another meeting was held at the White House in Card's of?ce. According to Mueller?s notes, Mueller, Card, Vice President Cheney, Deputy Director of Central Intelligence John E. McLaughlin, Hayden, Gonzales, and other unspeci?ed of?cials were present. Comey, Goldsmith, and Philbin were not invited to this meeting. After a presentation on the value of the PSP by NSA and CIA of?cials, it was lained to the group that Comey ?has problems? wit Mueller?s notes state that the Vice President suggested that ?the President may have to reauthorize without [the] blessing of to which Mueller responded, could have a problem with that,? and that the FBI would ?have to review legality of continued participation in the program.? A third meeting at the White House was held on 9 March, this time with Corney, Goldsmith, and Philbin present. Gonzales told us that the meeting was held to make sure that Comey understood what was at stake with the program and to demonstrate its value. Comey said the Vice President stressed that the program was ?critically 4H1 4:2 ?Acrcardi?g?mca??yg the-White House officials shimmy could not agree to that APPROVED FOR PUBLIC RELEASE important? and warned that Comey would risk ?thousands? of lives if he did not agree to recertify it. Corney said he stated at the meeting that he, as Acting Attornei GeneralI could rovided the collection was modi?cation. {WEB-Gonzales told us that after President Bush was advised of the reSuIts of the 9 March meetings, he instructed the Vice President on the morning of 10 March to call a meeting with Congressional leaders to advise them of the impasse with Do]. That afternoon, Gonzales and other White House and IC of?cials, including Vice President Cheney, Card, Hayden, McLaughlin, and Tenet, convened an ?emergency meeting? with Congressional leaders in the White House Situation Room. The Congressional leaders in attendance were Senate Majority and Minority Leaders William H. "Bill" Frist and Thomas A. Daschle; Senate Select Committee on Intelligence Chairman Pat Roberts and Vice Chairman John D. Rockefeller, Speaker of the House I. Dennis Hastert and House Minority Leader Nancy Pelosi; and House Permanent Select Committee on Intelligence Chair Porter Goss and Ranking Member Jane Harman. No Dol of?cials were asked to be present at the meeting. '(S?i?i?fy According to Gonzales?s notes of the meeting, individual Congressional leaders expressed thoughts and concerns related to the program. Gonzales told us that the consensus was that the program should continue. Gonzales also said that following the meeting with Congressional leaders, 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 ?'om surgery. (U) According to notes from Ashcro??s FBI security detail, at 18:20 on 10 March 2004, Card called the hospital and spoke with an agent in the security detail, advising the agent that President Bush would be calling shortly to speak with Ashcroft. Ashcro??s wife told the agent that Ashcro? would not accept the call'. Ten minutes later, the agent called Ashcroft?s Chief of Staff David Ayres at Do] to request that Ayres speak with Card about the President?s intention to call Ashcroft. The agent conveyed to Ayres Mrs. Ashcro??s desire that no calls be made to Ashcroft for another day or two. However, at 18:45, Card and the President called the hospital and, according to the agent?s notes, ?insisted on speaking [with Attorney General According to the agent?s notes, Mrs. Ashcroft took the call ?om Card and the President and was informed that Gonzales and Card were coming to the hOSpital to see Ashcroft regarding a matter involving national security. (U) At approximately 19:00, Ayres was advised that Gonzales and Card were on their way to the hospital. Ayres then called Comey, who at the time was being driven home by his security detail, and told Comey that Gonzales and Card were on their way to the APPROVED FOR PUBLIC RELEASE beepital. Comey told his driver to take him to the hospital. According to his May 2007 testimony before the Senate Judiciary Committee, Comey then called his Chief of Staff, Chuck Rosenberg, and directed him to ?get as many of my people as possible to the hospital immediately.? Gomey next called Mueller and told him that Gonzales and Card were on their way to the hospital to see Ashcroft, and that Ashcroft Was in no condition to receive visitors, much less make a decision about whether to recertify the PSP. According to Mueller?s notes, Comey asked Mueller to come to the hospital to ?witness [the] condition of~AG.? Mueller told Comey he would go to the hospital right away. (U) Corney arrived at the hospital between 19:10 and 19:30. Comey said he began speaking to Ashcroft, and that it was not clear that Ashcroft could focus and that he ?seemed pretty bad off.? Goldsmith and Philbin also had been summoned to the hospital and anived within a few minutes of each other. Comey, Goldsmith, and Philbin met brie?y in an FBI ?command post? that had been set up in a room adjacent to Ashcroft?s room. Moments later, the command post was noti?ed that Card and Genzales had arrived at the hospital and were on their way upstairs to see Ashcroft. Comey, Goldsmith, and Philbin entered Ashcroft's room and, according to Goldsmith's notes, Comey and the others advised Ashcroft ?not to sign anything.? Gonzales and Card entered Ashcroft?s hospital room at 19:35. Gonzales told us that he had with him in a manila envelope the II March 2004, Presidential Authorization for Ashcroft to sign. According to Philbin, Gonzales ?rst asked Ashcroft how he was feeling. Ashcroft replied, ?not well.? Gonzales then said words to the e?ect, ?You know, there?s a reauthorization that has to be renewed . . Gonzales told us that he may also have told Ashcroft that White House of?cials had met with Congressional leaders ?to pursue a legislative omey testi?ed to the Senate Judiciary Committee that at this point Ashcroft told Gonzales and Card ?in very strong terms" his objections to the PSP, which Comey testi?ed Ashcroft drew from his meeting with Comey about the program a week earlier. Goldsmith?s notes indicate that Ashcroft complained in particular that collection activities exceeded the scope of the authorizations and the OLC memorandums. Comey testi?ed that Ashcroft next stated: ?But that doesn?t matter, because I?m not the Attorney General. There is the Attorney General,? and he pointed to rue?I was just to his left. The two men [Gonzales and Card] did not acknowledge me; they turned and walked ?om the room. (U) Moments after Gonzales and Card departed, Mueller arrived at the hospital. Mueller met brie?y with Ashcroft and later wrote in his notes, in chair; is feeble, barely articulate, clearly stressed.? 44 APPROVED FOR PUBLIC RELEASE (U) Before leaving the hospital, Comey received a call from Card. Comey testi?ed that Card was very upset and demanded that Corney come to the White House immediately. Comey told Card that he would meet with him, but not without a witness, and that he intended that witness to be Solicitor General Theodore B. Olson. (U) Comey and the other officials left the hospital at 20:10 and met at Del. They were joined there by Olson. During this meeting, a call came ?om the Vice President for Olson, which Olson took on a secure line in Comey?s of?ce while Corney waited outside. Corney told us he believes the Vice President effectively read Olson into the program during that conversation. Comey and Olson then went to the White House at about 23:00 that evening and met with Gonzales and Card. Genzales told us that little more was achieved at this meeting than a general acknowledgement that a ?situation? continued to exist because of the disagreement between Do] and the White House regarding the program. White House Counsel Certifies Presidential Authorization Without Department of Justice Concurrence On the morning of 11 March 2004, with the Presidential Autho?zation set to expire, President Bush signed a new authorization for the PSP. In a departure ??om the past practice of having the Attorney General certify the authorization as to form and legality, the 11 March authorization was certi?ed by White House Counsel Gonzales. The 11 March authorization also differed markedly from prior authorizations in three other respects. {ii-SW The ?rst significant difference between the 11 March 2004 Presidential Authorization and prior authorizations was the President?s explicit assertion that the exercise of his Article II Commander-in?Chief authori 1 >??m0mm 46 APPROVED FOR PUBLIC RELEASE (Id. at para. 10.)14 Card informed Comey by telephone on the momng of 11 March 2004 that the President had signed the new authorization that morning. At approximately 12:00, Gonzales called Goldsmith to inform him that the President, in issuing the authorization, had made an interpretation 'of law concerning his authorities and that should not am: in contradiction of the President?s determinations. Also at 12:00 on 11 March, Mueller met with Card at the White House. According to Mueller?s notes, Card summoned Mueller to his of?ce to bring Mueller up- to-date on the events of the preceding 24 hours, including the brie?ng of the Congressional leaders the prior afternoon and the President's issuance of the new authorization without DoJ?s certi?cation as to legality. In addition, Card told Mueller that if no ?legislative could be found by 6 May 2004, when the 11 March authorization was set to eXpire, the program would be discontinued. According to Mueller?s notes, Card acknowledged to Mueller that President Bush had sent him and Gonzales to the hospital to seek Ashcro??s certi?cation for the 1 1 March 2004 authorization, but that Ashcroft had said he was too ill to make the determination and that Comey was the Acting Attorney General. Mueller wrote that he told Card that the failure to have Do] representation at the Congressional brie?ng 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." Card responded that he and Gonzales were unaware at the time of the hospital visit that Comey was the Acting Attorney General, and that they had only been following the directions of the President. WSeveral senior and FBI of?cials, including Comey, Goldsmith, and Mueller considered resigning after the 11 March 2004 Presidential Authorization was signed without Dol?s concurrence. These of?cials cited as reasons for considering resignation the manner in which the White House had handled its di5pute with D01 and the treatment of Ashcroft, among other reasons. Wn 12 March 2004, Mueller drafted by hand a letter stating, in part: reviewing the plain language of the FISA statute, and the order issued yesterday by the President . . . and in the absence of further clari?cation of the legality of the program from the AttOrney General, I am forced to withdraw the FBI from participation in the program. ?h CRELEASE Further, should the President order the continuation of the participation in the program, and in the absence of further legal advice ?om the AG, I would be constrained to resign as Director of the Mueller told us he planned on having the letter typed and then tendering it, but that based on subsequent events his resignation was not necessary. Mueller sent Comey a memorandum seeking guidance on how the FBI should proceed in light of developments related to the Presidential Authorizations. The memorandum asked whether FBI agents detailed to the NSA to work on the PSP should be - er the FBI should continue to receive and investi ate ti 5 based 0_ and whether* (U) On the morning of 12 March, Comey and Mueller attended the regular daily threat brie?ng with the President in the Oval Office. Comey said that, following the brie?ng, President Bush called him into the President?s private study for an ?unscheduled meeting.? Corney told the President of DoJ?s legal concerns regarding the PSP. According to Comey, the President?s response indicated that he had not been fully informed of these concerns. Corney told the President that the President's staff had been advised of these issues ?for weeks.? According to Comey, the President said that he just needed until May 6 (the date of the next authorization), and that if he could not get Congress to ?x FISA by then he would shut down the program. The President emphasized the importance of the program and that it ?saves lives.? W) The President next met with Mueller. According to Mueller?s notes, Mueller told the President of his concerns regarding the continued participation in the program without an opinion ?om the Attorney General as to its legality, and that he was considering resigning if the FBI were directed to continue to participate without the concurrence of the Attorney General. The President directed Mueller to meet with Comey and other PSP principals to address the legal concerns so that the FBI could continue participating in the program ?as appropriate under the law." Comey decided not to direct the FBI to cease cooperating with the NSA in conjunction with the PSP. Comey?s decision is documented in a one-page memorandum from Goldsmith to Corney in which Goldsmith explained that the President, as Commander-in?Chief and Chief Executive with the constitutional duty to ?take care that the laws are faithfully executed,? made a determination that the PSP, as practiced, was lawful. Goldsmith concluded that this determination was binding on the entire Executive Branch, including Comey in his exercise of the powers of the Attorney General. The same day, an interagency working group was convened to continue the legality of the PSP. In accordance with the President?s directive to Mueller, of?cials from the FBI, NSA, and CIA were brought into the process, although the OLC maintained the lead role. On 16 March 2004, Comey drafted a memorandum to Gonzales setting out Comey?s advice to aardin the PSP. Come advised 'dent ma law?ill continu Comey further 4-7 48 I {liz?i IC RELEASE wrote that remained unable to and he advised that suc Come cautioned that he believed the ongoing collection of raised ?serious issues" about Congressional noti?cation, ?particularly where the legal basis for the program is the President?s decision to assert his authority to override an otherwise applicable Act of Congress.? - (U) Gonzales replied by letter on the evening of 16 March. The letter stated, in part: Your memorandum appears to have been based on a misunderstanding of the President?s eitpectations regarding the conduct of the Department of Justice. While the President was, and remains, interested in any thoughts the Department of Justice may have on alternative ways to achieve effectively the goals of the activities authorized by the Presidential Authorization of March 11, 2004, the President has addressed de?nitively for the Executive Branch in the Presidential Authorization the interpretation of the law. The President?s directi'Ve Was expressed in two nicdi?cations to the 11 March 2004 Presidential Authorization. On 19 March 2004, the President signed, and Gonzales certi?ed as to form and legality, a modi?cation of the 11 March 2004 Presidential Authorization. The modi?cation made two significant changes to the current authorization and a third im ortant chan affectin all subse uent authorizations. First the modi?catio APPROVED FOR PUBLIC RELEASE On 2 April 2004, President Bush signed, and Gonzales certi?ed as to form and legality, a second modi? tio of the 11 March 2004, Presidential Auth mason. This modi?cation addressed anthems #40513} On 6 May 2004, Goldsmith and Philbin completed an OLC legal memorandum assessing the legality of the PSP as it was then operating. The memorandum stated that the AUMIF passed by Congress shortly after the attacks of 11 September 2001 gave the President authority to use both domestically and abroad ?all necessary and appropriate force," including SIGINT capabilities, to prevent ?iture acts of international terrorism against the United States. According to the memorandum, the AUMF was properly read as an express authorization to conduct targeted electronic surveillance against al-Qa?ida and its af?liates, the entities responsible for attacking the United States, thereby supporting the President?s directives to conduct these activities under the PSP. Much of the legal reasoning in the 6 May 2004 OLC memorandum was publicly released by in a ?White Authorities Supporting the Activities of the National Security Agency Described by the President??issued on 19 January 2.006 after the content AG 50 APPROVED FOR PUBLIC RELEASE r? (at :4 4i: collection portion of the program was revealed in The New York Times and publicly con?rmed by the President in December 2005. (U) Restrictions on Access to the President's Surveillance Program lmpeded Department of Justice Legal Review The D01 16 found it extraordinary and inappropriate that a single 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, which was contrary to the customary practice of OLC, contributed to a legal analysis of the PSP that, at a minimum, was factually ?awed. De?ciencies in the legal memorandums became apparent once additional attorneys were read into the program in 2003 and those attorneys sought a greater understanding of the operation. The White House?s strict controls over access to the PSP undermined DoJ?s ability to provide the President the best available advice about the program. The IG also concluded that the circumstances plainly called for additional resources to be applied to the legal review of the program, and that it was the Attorney General?s responsibility to be aware of this need and to take steps to address it. However, the Do} OIG could not determine whether Ashcroft aggressively sought additional read-ins to assist with DoJ?s legal review of the program prior to 2003 because Ashcroft did not agree to be interviewed. (U) TRANSITION OF SURVEILLANCE PROGRAM ACTIVITIES TO FOREIGN INTELLIGENCE SURVEILLANCE ACT AUTHORITY lnternet Metadata Collection Transition to Operation Under FISA Authority The government?s FISA application, entitled "Application for Pen Re isters and Tra and Trace Devices for Forei ll The application package included: a A proposed order authorizing the collection activity and secondary orders mandating carriers to cooperate. A declaration by Hayden explaining the technical aspects of the proposed Internet metadata collection and identifying the government of?cial APPROVED FOR PUBLIC RELEASE seeking to use the pen register and trap and trace devices covered by the application for purposes of 50 U.S.C. 1842(c)(1). A declaration by Tenet describing the threat posed by? to the United States. a A certi?cation from Ashcroft stating that the information likely to be obtained ?om the devices was relevant to an ongoing investigation to protect against international terrorism, as required by 50 U.S.C. 1842(c). A memorandum of law and fact in support of the application. The objective of the application was to secure authority under FISA collec bulk Internet metadata constructed its legal argument for this novel use of devices around traditional authorities provided under FISA. (See 50 U.S.C. The government argued that the proposed collection of metadata met the requirements of FISA by noting that the metadata sought comported with the ?dialing, routing, addressing, or signaling information? type of data described in de?nitions of devices. (See 18 U.S.C. 3127(3) and The government next argued that the information likely to be obtained horn the devices was relevant to an ongoing investigation to protect against international terrorism, as certi?ed by the Attorney General under 50 U.S.C. . In su ort of this ?certi?cation of relevance? th overnment stated that the FEB mThe government also stated that needed to co let: me a a a to perform contact chainin that would enable the NSA to discover enemy communications. The a lication requested that the NSA be authorized to collect The application represented that for most of the proposed correction on it was ?overwhelmingly likely? that at least one end of the transmitted commumcation either originated in or was destined for locations outside the United States, and that in some cases both ends 0 'on were entirel forei . However, ent acknowled ed that The application proposed allowing 10 NSA access to the database. The NSA were to be briefed by NSA OGC personnel concerning the circumstances under which the database could be queried, and all queries would have to be 51 52 APPROVED FOR PUBLIC RELEASE approVed by one of seven senior NSA of?cials. The application proposed that queries of the Internet metadata archive would be performed when the Internet communication address met the following standard: [B]ased on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are facts giving rise to a reasonable articulable suspicion that a particular known e-mail address is associated with The application and supporting documen intended to use the Internet metadata to develop contact chainin The NBA estimated that its queries of the database would generate approximately 400 tips to the FBI and CIA each year. Of these tips, the NSA projected that 25 percent would include US. person information, amounting to leads including information on about ?four to ?ve US. persons each month.? On 14 July 2004, Kollar?Kotelly signed a Pen Register and Trap and Trace Opinion and Order Order) based on her ?ndings that the proposed collection of Internet metadata and the government?s proposed controls over and dissemination of this information satis?ed the requirements of FISA. The Order, which granted the government?s application in all key respects, approved for a eriod of 90 da 5 the collection within the United States of Internet metadah The Order also required the government to comply with certain additional restrictions and procedures either adapted from or not originally proposed in the application. The FISC amended the government?s proposed querying standard, consistent with 50 U.S.C. 1842(c)(2), to include the proviso that the NSA may query the database based on its reasonable articulable susPici communication address is associated with ?provided, however, that an not be regarded as associated with the basis of activities that are protected by the irst Amendment to the Constitution.? Regarding the storing, accessing, and disseminating of the Internet metadata obtained by the NSA, the F180 ordered that the NSA store the information in a manner that ensures it is not commingled with other data, and ?generate a log of auditing information for each occasion when the information is ccessed, to include the .. . retrieval re 11 also issued separate orders to? service moi/Mam to assist the NSA with the installation and use of the devices and to maintain the secrecy of the activities. believed to be used a US. erson shall Several of?cials told us that obtaining the Order was seen as a great success, and that there was general agreement that the govemnient had secured all the authority it sought to conduct the bulk Internet metadata collection. The FISC ?rst renewed the PMT Order 0 and then rene ubse uent orders at a roxiinately 90-day intervals. In these renewals, the FIS that it approved with the 14 July 2004 Order: Urid?fthe PRIITE?nEWaITpplic'ations, the scope of - ueries. a ainst the PMT database remained limited to queries that concerned (U) Department of Justice Notices of Compliance Incidents OIPR ?led a Notice of Compliance Incidents ?unauthorized collection? that had taken place following with the FISC describing certain issuance of the Order. W) the FISC issued a Compliance Order stating that the violated its own proposed limitations." The ISC stated the duration of the violations, which extended ?tom 14 July throng at the Court was reluctant to issue a renewal of the However, Kollar-Kotelly signed a Renewal Order 0 the NSA to continue collecting Internet metadata under FISA on terms similar to the Order. 53 54 APPROVED FOR PUBLIC RELEASE WTelt?sphony Metadata Collection Transition to Operation Under FISA Authority Another part of the PSP, bulk collection of telephony metadata, was brought under ISA authority in May 2006. As with Internet metadata, the bulk nature of the teleihoni metadata collection provided the NSA the ability to conduct contact chaining transition of bulk telephony metadata collection from Presidential authority to ISA authority relied on a provision in ISA that authorized the FBI to seek an order ?'om the ISC compelling the production of ?any tangible things? from any business, organization, or entity, provided the items are for an authorized investigation to protect against international terrorism or clandestine intelligence activities. (See 50 U.S.C. 1861.) Orders under this provision are commonly referred to as ?Section 215? orders in reference to Section 215 of the USA PATRIOT Act, which amended the ?business records? provision in Title of PISA. ?3 The ?tangible things? sought in this Section 215 application were the telephone call detail records of certain telecommunications service providers. The timing of the decision in May 2006 to seek a FISC order for the bulk collection of telephony metadata was driven primarily by external events. A 16 December 2005 article in The New York Times entitled, ?Bush Lets U.S. Spy on Callers On 17 December 2005, in reSponse to the article, President Bush publicly con?rmed that he had authorized the NSA to intercept the international communications of people with known links to al-Qa?ida and related terrorist organizations. On 19 January 2006, Do] issued its White Paper-?-?Legal Authorities Supporting the Activities of the National Security Agency Described by the President?? that addressed in an unclassi?ed form the legal basis for the collection activities described in 1723 New York Times article and con?rmed by the President. ?3 (U) Prior to the enactment of Section 215 of the USA PATRIOT Act, the FISA ?business records" provisions were limited to obtaining information about a speci?c person or entity under investigation and only from common carriers, public accommodation facilities, physical storage facilities, and vehicle rental facilities. APPROVED FOR PUBLIC RELEASE the head of OLC at that time, the legal analysis 8 E. E: in the White Pa er ugh The New York imes icle di no descn aspec or I asked about this aspect of the program in early 2006. Bradbury anticipated that a USA Today article would attract signi?cant public attention when publied. As anticipated, on 11 May 2006, the USA Today published the results of its inVestigation in an article entitled, Has Massive Database ofAmerican Phone Calls.? On 23 May 2006, the FBI ?led with the FISC a Section 215 application seeking authority to 1 ect tele hon metadata to assist the NSA 'dent' ing members or agents chin support of th FBI investigations then pending and other 10 operations. The application requested an order compelling certain telecommunications companies to produce (for the duration of the 90-day order) call detail records relating to all telephone communications maintained by the carriers. According to the application, the majority of the telephony metadata provided to the NSA was expected to involve communications that were (1) between domestic and foreign locations, or (2) wholly within the United States, including lacal telephone calls. The application estimated that the collection would involve the NSA receiving approximately-call detail records per day.? The application acknowledged that the vast collection would include communications records of US. persons located within the United States who were not the subject of any FBI investigation. However, relying on the precedent established by the the aiilication asserted that the collection was needed for the NSA to find and to identify unknown operatiVes, some of whom ma the United States or in communication with US. persons, by using contact chainin As was done under the PSP, the call detail records would be entered in an NSA database and would query the data with articular tele hone numbers to identify connections with other numbers The proposed query standard in the Section 215 application essentially was the same standard applied under the PSP in connection with telephony metadata, and the same standard the FISC authorized in the Order for Internet metadata. The Section 215 application also included in the proposed query standard the First Amendment proviso that the FISC added to the EMT query standard. 19 65W Wage amount of telephony metadata collected per day iall detail records rather th estimated in the application. H?H?nr?w..nr: m1 56 APPROVED FOR PUBLIC RELEASE On 24 May 2006, the FISC approved the Section 215 application, ?nding that there were reasonable grounds to believe that the telephony metadata records sought were relevant to authorized investigations the FBI was conducting to protect against international terrorism. The FISC Section 215 order incorporated each of the procedures proposed in the government?s application relating to access to and use of the metadata, which were nearly identical to those included in the Internet metadata Order. Through March 2009, the FIS renewed the authorities granted in the 24 May 2006 order at approximately 90-day intervals, with some modi?cations sought by the US. overnment. For exam Ie the FISC ted an Au st 2006 motion re uestino Except for these and other minor modi?cations, the terms of the grant of Section 215 authority for the bulk collection of telephony metadata remained essentiall revel in Ma 2006 until March 2009. Further, the Section215 Orders did not require the NSA to modify its use of the telephony metadata from an analytical perspective NSA were authorized to query the data as they had under the PSP, conduct metadata analysis, and disseminate the results to the FBI, the CIA, and other customers. However, the FISC drastically changed the authority contained in its March 2009 Section 215 Order a?er it was noti?ed in January 2009 that the NSA had been querying the metadata in a manner that was not authorized by the court?s Section 215 Orders. eci? ally, the NSA, on a daily basis, was automatically querying the metadata with telephone numbers from an alert list that had not been determined to satisfy the reasonable articulable suspicion standard required by the FISC to access the telephony metadata for search or analysis purposes. 011 2 March 2009, the FISC issued an order that addressed the compliance incidents that had been reported in January 2009, the government?s explanation for their occurrence, and the remedial and prosPective measures being taken in response. The FISC stated its concerns with the telephony metadata program and its lack of con?dence ?that the government is doing its utmost to ensure that those r65ponsible for implementation ?illy comply with the Court?s orders." Nonetheless, the ISC authorized the government to continue collecting telephony metadata under the Section 215 Orders. The 180 explained that in light of the government?s repeated representations that the collection of the telephony metadata is vital to national security, taken together with the court?s prior determination that the collection properly administered conforms with the FISA statute, that ?it would not be prudent? to order the government to cease the bulk collection. However, believing that ?more is needed to protect the privacy of U.S. person information acquired and retained? pursuant to the Section 215 Orders, the FISC prohibited the government from accessing the metadata collected ?until such time as the government is able to restore the Court?s con?dence that the government can and will comply with previously approved procedures for accessing such data.? The government may, on a case-by?case basis, request authority from the FISC to query the metadata with a speci?c telephone number to obtain foreign intelligence. The FISC also authorized the government to query the metadata without court approval to protect against an imminent threat to human life, provided the government noti?es the court within the next business day. Content Collection Transition to Operation Under FISA Authority WThe last part of the PSP brought under ISA authority was telephone and Internet communications content collection. As explained below, the effort to accomplish this transition was legally and operationally complex and required an enormous effort on the part of the government and the FIS C. The FISC judge who ruled on the initial application approved the unconventional legal approach the government proposed to ?t content collection activities within FISA. However, the FISC judge responsible for considering the govemment?s renewal application rejected the legal approach. This resulted in signi?cant diminution in authorized surveillance activity involving content collection and hastened the enactment of legislation that signi?cantly amended FISA and provided the government surveillance authorities broader than those authorized under the PSP. The government ?led nt ie on 13 December 2006. The application sou te hone and electronic communications 0W The application sought to replace the conventional practice under me or mung murvidual applications each time the government had probable cause to believe that a particular telephone number or Internet communication address Was being used or about to be used oy members or agents of a foreign power. In the place of the individualized process, the application proposed that the FISC establish broad parameters for the interception of communications?the groups that can be targeted and the locations where the surveillance can be conducted?and that NSA officials, rather than ISC 'ud es determine within these parameters the particular selectors to be collected against. APPROVED FOR PUBLIC RELEASE albeit with FISC review and supervision. The government?s approach in the FISA application rested on a broad interpretation of the statutory term ?facility? and the use of minimization procedures by NSA of?cials to make probable cause determinations about individual selectors, rather than have a FISC judge make such determinations. Wm short, the overnment?s content a licatio robable cause to believe the engaged in international terrorism, and tha Then, within these parameters, NSA of?cials would make probable cause ?ndings (subsequently reviewed by the FISC) about-whether individual telephone numbers or intemet communications addresses are ed gents of and whether the communications of those numbers and addresses are to or from a foreign country. When probable cause ?ndings were made, the NSA could direct the telecommunications companies to provide the content of commuuications associated with those telephone numbers and Internet communications addresses. 10 I anuary 2007, Judge Malcolm J. Howard approved the government's 13 December 2006 content application as it pertained to foreign selectors?telephone numbers and Internet communications addresses reasonably believed to be used by individuals outside the United States. The effort to implement the order was a massive undertaking for and NSA. At the time of the order, the NSA was actively tasking for content collection approximately foreign selectors?Internet communications addresses or telephone numbers?under authority of the PSP. Approximatel of these were ?led with Howard on an approved schedule of rolling submissions over the 90-day duration of the order. However, Howard did not approve the govarnment?s 13 December 2006 content application as it pertained to domestic selectors?telephone numbers and Internet communications addresses reasonably belieVed to be used by individuals in the United States. Howard advised Do] to ?le a separate application for the international calls of domestic selectors that took a more traditional approach to FISA. A more traditional approach meant that the facilities targeted by the FISA application should be particular telephone numbers and Internet communication addresses and that the probable cause determination for a particular selector would reside with the FISC. did this in an application ?led on 9 January 2007, which Howard approved the following day. The FISC renewed the estic selectors order approved by Howard for the ?nal thus in dand it has since expired. Dol's ?rst renewal application to extend the foreign selectors authorities was ?led on 20 March 2007 with Judge Roger Vinson, the FISC duty judge that week. On 29 March 2007, Vinson orally advised Do] that he could not approve the application and, on 3 April 2007, he issued an order and Memorandum Opinion explaining the reasoning for his conclusion. Vinson wrote that DoJ?s foreign selectors renewal application concerns an ?extremely important issue? regarding who may make probable cause ?ndings that determine the individuals and the communications that can be subjected to electronic surveillance under FISA. In Vinson?s view, the question was whether probable cause determinations are required to be made by the ISC through procedures established by statute, or whether the NSA may make such determinations under an alternative mechanism cast as ?minimization procedures." Vinson concluded, based on past practice under FISA and the Congressional intent underlying the statute, that probable cause determinations must be made by the FISC. also wrote that he was mindful of the government?s argument that the government?s proposed approach to foreign selectors was necessary to provide or enhance the ?speed and ?exibility? with which the NSA responds to threats, and that foreign intelligence information may be lost in the time it takes to obtain Attorney General emergency authorizations. However, in Vinson?s view, requirements re?ected a balance struck by Congress between privacy interests and the need to obtain foreign intelligence information, and until Congress took legislative action on FISA to respond to the government?s concerns, the FISC must apply the statute?s procedures. He concluded that the government?s application sought to strike a different balance for the surveillance of foreign telephone numbers and Internet communications addresses. Vinson rejected this position, stating, ?the statute applies the same requirements to surveillance of facilities used overseas as it does to surveillance of facilities used in the United States." Vinson suggested that, ?Congress should also consider clarifying or modifying the scope of FISA and of this Court's jurisdiction with regard to such facilities . . Vinson?s suggestion was a spur to Congress to consider ISA modernization legislation in the summer of 2007. In May 2007, Do] ?led, and Vinson approved, a revised foreign selectors application that took a more traditional approach to ISA. Although the revised approach sought to preserve some of the ?speed and agility? the government had under Howard?s order, the comparatively laborious process for targeting foreign selectors under Vinson?s order caused the government to place only a fraction of the desired foreign selectors under coverage. The number of foreign selectors on collection dropped from abou-under the January 2007 Order to abou-under the May 2007 order. The situation accelerated the government?s efforts to obtain legislation that would amend PISA to address the government?s surveillance capabilities within the United States directed at persons located outside the United States. The Protect America Act, signed into law on 5 August 2007, accomplished this objective by authorizing the NSA to intercept inside the United States any communications of non?US. persons reasonably behaved to be located outside the United States, provided a signi?cant purpose of the acquisition pertains to foreign intelligence. The Protect America Act effectively superseded Vinson?s foreign 59 60) RELEASE selectors order and the government therefore did not seek to renew the order when it expired on 24 August 2007. The 16 concluded that several considerations favored initiating PSP's transition from Presidential authority to ISA authority earlier than March 2004, especially as the program became less a temporary response to the September 11 terrorist attacks and more a permanent surveillance tool. These considerations included substantial effect on privacy interests of US. persons, the instability of the legal reasoning on which the program rested for several years, and the substantial restrictions placed on FBI agents? and access to and use of program-derived information due to the highly classi?ed status of the PSP. The IG also recommended that Do] care?Jlly monitor the collection, use, and retention of the information that is now collected under FISA authority and, together with other agencies, continue to examine its value to the government?s ongoing counterterrorism efforts. (U) IMPACT OF THE SURVEILLANCE PROGRAM 0N INTELLIGENCE COMMUNITY COUNTERTERRORISM EFFORTS (U) Senior Intelligence Community Of?cials Believe That the President's Surveillance Program Filled an Intelligence Gap Wayden, Goss, McLaughlin, and other senior IC of?cials we interviewed told us that the PSP addressed a gap in intelligence collection. The IC needed increased access to international communications that transited domestic U.S. communication wires, particularly international communications that originated or terminated within the United States. HOWever, collection of such communications required authorization under FISA, and there was widespread belief among senior lC of?cials that the process for obtaining ISA authorization was too cumbersome and time consumin to address the current threat. During the May 2006 Senate hearing on his nomination to be Director of the CIA, Hayden said that, had PSP been in place before the September 2001 attacks, hijackers Khalid Almihdhar and Nawaf Alhazmi almost certainly would have been identi?ed and located. According to senior NSA of?cials, the PSP ave NSA the With PSP authority, NSA could collect communications between terrorists in the Unrted States and members of al-Qa?id located in foreign countries. The PSP provided SIGINT coverage at the seam between foreign and domestic intelligence collecti ed as an im ortant conse ence of the PSP the ability to collect mor Hayden told us that he always felt the PSP was and successful. His expectation was that the CIA and the FBI would be customers of to -derived and inte ate it into their respective operations. ?ayden told us that the program helped to determine that terrorist cells were not embedded within the United States to the extent that had been feared. (U) Difficulty in Assessing the Impact of the President?s Surveillance Program It was dif?cult to assess the overall impact on 10 counterterrorism efforts. Except for the FBI, 10 organizations that participated in the PSP did not have tic rocesses for how PSP reporting was used. were repeatedly told that the PSP was one of a number of intelligence sources and analytic tools that were available to IC personnel, and that, because PSP reporting was used in conjunction with reportng from other intelligence sources, it was difficult to attribute the success of particular counterterrorism operations exclusiver to the PSP. (U) Impact of the President?s Suweillance Program on FBI Counterterrorism Efforts WThe Del IG found it difficult to assess or quantify the impact of the PSP on FBI counterterrorism efforts. However, based on our interviews of FBI managers and agents and our review of documents, we concluded that, although PSP information had value in some counterterrorism investigations, the program generally played a limited role in the BI's overall counterterrorism efforts. Several officials we interviewed suggested that the program provided an ?early Warning system" to allow the 10 to detect potential 61 62 APPROVED FOR PUBLIC RELEASE terrorist attacks, eVen if the program had not speci?cally uncovered evidence of preparations for such attacks. (U) FBI Efforts to Assess the Value of the Program WThe FBI made several attempts to assess the value of the PSP to FBI counterterrorism efforts. In 2004 and again in 2006, Office of General Counsel (OGC) attempted to assess the value to the FBI information. This ?rst assessment relied on anecdotal information and informal feedback from FBI ?eld of?ces. The 2006 assessment was limited to the aspect of the PSP disclosed in The New York Times article and subsequently con?rmed by the President, content collection. The FBI undertook two more efforts to study impact on FBI operations in early 2006. In both of these statistical studies, the FBI sought to determine what percentage of PSP tippers resulted in ?signi?cant contribution[s] to the identi?cation of terrorist subjects or activity 011 U.S. soil.? The FBI considered a tipper signi?cant if it led to any of three investigative results: the identi?cation of a terrorist, the deportation from the United States of a suspected terrorist, or the development of an asset that can report about the activities of terrorists. he ?rst study examined a sample of leads selected from the tippers the NSA provided the FBI from approximately October 2001 to December 2005. The study found that 1.2 percent of the leads made signi?cant contributions, as de?ned above. The study extrapolated this to the lation of leads and determined that one could expect to ?nd thaw leads made signi?cant contributions to FBI counterterrorism e?orts. The second study, which reviewed all of th leads the NSA provided the FBI from August 2004 through January 2006, identi?ed no instances of signi?cant contributions to FBI counterterrorism efforts. The studies did not include explicit conclusions on the program?s use?ilness. However, based in part on the results of the first study, FBI executive management, including Mueller and Deputy Director John Pistole, concluded that the PSP was ?of value.? (U) FBI Judgmental Assessments of the Program ?fS??iF?-We interviewed FBI headquarters and ?eld of?ce personnel who regularly handled PSP information for their assessments of the impact of program information on FBI counterterrorism efforts. The FBI personnel we interviewed were generally supportive of the PSP as ?one tool of many? in the anti-terrorism efforts that ?could help more cases forward?. Even though most leads were determined not to have any connection to terrorism, many of the FBI of?cials believed the mere possibility of a terrorist connection made investigating the tips However, the exceptionally compartmented nature of the program created some frustration for FBI personnel. Some agents criticized PSP reports for providing insu?'icient details about the foreign individuals alleged i volved in terrorism. Others occasionally were frustrated by the prohibition on usin information in judicial processes, such as in FISA applications, although none of the FBI ?eld of?ce agents We interviewed could identin an investigation in which the restrictions adversely affected the case. Agents who managed counterterrorism programs at the FBI field of?ces we visited Were critical of the?project for failing to adequately prioritize threat information and, because of the program?s special status, for limiting the managers? ability to prioritize the leads in the manner they felt was warranted by the information. Mueller told us that the PSP was use?il. He said the FBI must follow every lead it receives in order to prevent ?iture terrorist attacks and that to the extent such information can be gathered and used legally it must be exploited. He stated that he ?would not dismiss the potency of a program based on the percentage of hits.? Mueller added that, as a general matter, it is very dif?cult to quantify the effectiveness of an intelligence program without ?tagging? the leads that are produced in order to evaluate the role the program information played in any investigation. (U) Impact of the President?s Surveillance Program on CIA Counterte'rrorism Operations (U) The CIA Did Not Systematlcally Assess the Effectiveness of the Program WThe CIA did not implement procedures to systematically assess the use?ilness of the product of the PSP and did not routinely document whether particular PSP reporting had contributed to successful counterterrorism operations. CIA of?cials, including Hayden, told us that PSP reporting was used in conjunction with reporting from other intelligence sources; consequently, it is difficult to attribute the success of particular counterterrorism op exclusively to the PSP. In a May 2006 brie?ng to the SSCI, the Deputy Director, said that PSP reporting was rarely the sole basis for an intelligence success, but that it ?equently played a supporting role. He went onto state that the program was an additional resource to enhance the understanding of terrorist networks and to help identify potential threats to the homeland. Other-of?cials We interviewed said that the PSP was one of many tools available to them, and that the tools were often used in combination. However, because there is no means to comprehenswe tree 63 APPROVED FOR PUBLIC RELEASE only limited information on how program reporting contributed to success?ll operations, and the CIA IG was unable to independently draw any conclusion on the overall usefulness of the program to CIA. (U) Several Factors Hindered CIA Utilization of the Program The CIA IG concluded that several factors hindered the CIA in making use of the capabilities of the PSP. Many CIA of?cials told us that too few CIA personnel at the working level were read into the PSP. At the program?s inception, a disproportionate number of the CIA ersonnel who Were read into the PSP were senior CIA mana ers. the disparity between the number of senior CIA managers read into PSP and the number of working-level CIA personnel read into the program resulted in too few CIA personnel to ?rlly utilize PSP information for targeting and analysis. working?level CIA and targeting officers who were read into the PSP had too many competing priorities, and too 111 other information sources and analytic tools available to them, to ?illy utilize PSP. of?cials also told us that much of the PSP reporting was vague or without context, which led and targeting of?cers to rely more heavily on other information sources and analytic tools, which were more easily accessed and timely than the PSP. of?cers said that the PSP would have been more ?Jlly utilized if and targeting of?cers had obtained a better understanding of the program's capabilities. There was no formal training on the use of the PSP beyond the initial read in to the program. Many CIA officers we interviewed said that the instruction provided in the read?in brie?ng was not su?cient and that they were surprised and ?'ustrated by the lack of additional guidance. Some officers told us that there was msuf?cientgegal guidance on the use of PSP-derived information. The factors that hindered the CIA in making full use of the PSP might have been mitigated if the CIA had designated an individual at an appropriate level of managerial authority, who possessed knowledge of both the PSP and CIA counterterrorism activities, to be responsible and accountable for overseeing CIA participation in the 64L APPROVED FOR PUBLIC RELEASE (U) Impact of the President's Surveillance Program on NCTC Counterterrorism Efforts NCTC characterized the PSP as a use?d tool, but they also noted that the program was only one of several valuable sources of information available to them. In their view, PSP-derived information was not of greater value than other sources of intelligence. Although NCTC we interviewed could not recall speci?c examples where PSP information provided what they considered actic?mable intelligence, they told us they remember attending meetings where the bene?ts of the PSP were regularly discussed. (U) Counterterrorism Operations Supported by the President's Surveillance Program Our efforts to independently identify how PSP information impacted terrorism investigations and counterterrorism operations were hampered by the nature of these activities, which as previously stated, frequently are predicated on multiple sources of information. Many IC of?cials we interviewed had dif?culty citing speci?c instances where PSP reporting contributed to a counterterrorism success. The same handful of cases tended to be cited as PSP successes by personnel we interviewed from each of the participating re orts briefm charts, and other ents we reviewed. These ages-and others identi?es? 7 to us as PSP successes, are discussed below. APPROVED FOR PUBLIC RELEASE . . a. nu and ter pled guilty to A?e rovided va uab 6 information to the law enfor em 11 NSA Director Alexander cited reporting on success of the PSP. Alexander said that PSP reporting 0 "probably saved more lives? than any other PSP information produced NSAAdditional- reorting, provided telephone contacts v. - r: i - amon and - - - - a terrorist ties locatedin The FBI learned more abou ties to terrorist groups from evidence seize evidence gathered throuh several interview 0 .- convieted 66 APPROVED FOR PUBLIC RELEASE In an undated summary of PSP successes, the NSA characterized as: - 7 es cited in IC - ords and cases. 7 . nd reporting helped to i cut and v. ho Was arrested in Subse uent PSP analysis 0 identi?ed his information generated several leads for the FBI. internal FBI brie?ng material - . was ?instrumental in subject of a Full Investigation However, the Countert Division told - I i u. ?no re factored intw - '4 II 3, PSP reortin assisted in locating his network?s worldwide associat (58 APPROVED FOR PUBLIC RELEASE (U) ATTORNEY GENERAL TESTIMONY ON THE SURVEILLANCE PROGRAM (U) As part of this review, the IG examined whether Attorney General Gonzales made false, inaccurate, or misleading statements to Congress related to the PSP. Aspects of the PSP were ?rst disclosed publicly in a series of articles in The New York Tunes in December 2005. In response, the President publicly con?rmed a portion of the which he called the terrorist surveillance program?describing it as the interception of the content of international communications of people reasonably believed to have links to al-Qaeda and related organizations. Subsequently, Gonzales was questioned about SA surveillance activities in two hearings before the Senate Judiciary Committee in February 2006 and July 2007. {SM?Througr media accounts and Comey?s Senate Judiciary Committee testimony in May 2007, it was publicly revealed that and the White House had a major disagreement related to the PSP, which brought several Senior Do] and FBI of?cials to the brink of resi gnation in March 2004. In his testimony before the Senate Judiciary Committee, Gonzales stated that the dispute at issue between Do] and the White House did not relate to the ?Terrorist Surveillance Program? that the President had con?rmed, but rather pertained to other intelligence activities. We believe this testimony created the misimpression that the dispute concerned activities entirely unrelated to the terrorist surveillance program, which was not accurate. In addition, we believe Gonzales?s testimony that Do] attorneys did not have ?reservations? or - these concerns a een conveyed to - te House over a period 0 months before the issue was resolved. The Do] IG recognizes that Gonzales was in the dif?cult position of testifying about a highly classi?ed program in an open forum. However, Gonzales, as a participant in the March 2004 dispute between and the White House and, more importantly, as the nation?s chief law enforcement of?cer, had a duty to balance his obligation not to disclose classi?ed information with the need not to be misleading in his testimony. Although we believe that Gonzales did not intend to mislead Congress, we believe his testimony was con?ning, inaccurate, and had the effect of misleading those who were not knowledgeable about the program. APPROVED FOR PUBLIC RELEASE (U) concwsuons .. (U) Pursuant to Title of the FISA Amendments Act of 2008, the InsPectors General of the DOD, the D01, the CIA, the NSA, and the ODNI conducted reviews of the PSP. In this report and the accompanying individual reports of the participating IGs, we describe how, following the terrorist attacks of 11 September 2001, the President enhanced the collection authorities in an e?'ort to ?detect and prevent acts of terrorism against the United States.? the mix- collected signi?cant new information, such as content of communications into and out of the United States, where one party to the communication was reasonably believed to be a member of al-Qa?ida, or its affiliates, or a group the President determined was in armed con?ict with the United States. In addition, the President authorized the collection of signi?cant amounts of telephony and Internet metadata. The NSA analyzed this information for dissemination as leads to the IC, principally the CIA and the FBI. As described in the IG reports, the scope of this collection authority changed over the course of the PSP. The IG reports describe the role of each of the participating agencies in the PSP, including the management and oversight of the collection, analysis, and reporting process; the and use of the PSP-derived intelligence in their counterterrorism efforts; the support of the program by providing periodic threat assessments; and the DoJ?s role in analyzing and certifying the legality of the PSP and managing use of PSP information in the judicial process. (U) The IG reports also describe the con?icting views surrounding the legality of aspects of the PSP during 2003 and 2004, the confrontation between of?cials from DOT and the White House about the legal basis for parts of the program and the resolution of that con?ict. The ensuing transition of the PSP, in stages, ??om presidential authority to statutory authority under FISA, is also described in the IG reports. (U) The IGs also examined the impact of PSP information on counterterrorisrn efforts. Many senior IC of?cials believe that the PSP ?lled a gap in intelligence collection thought to exist under PISA by increasing access to international communications that transited domestic U.S. communication wires, particularly international communications that originated or terminated within the United States. Others within the IC Community, including FBI agents, CIA and managers, and other officials had difficulty evaluating the precise contribution of the PSP to counterterrorism efforts because it was most often viewed as one source among many available analytic and nitelligence-gathering tools in these efforts. The IG reports describe several examples of how PSP-derived information factored into Speci?c investigations and operations. (U) The collection activities pursued under the PSP, and under PISA following the activities' transition to operation under that authority, as described in this report, resulted in unprecedented collection of communications content and metadata. We believe the retention and use by IC organizations of information collected under the PSP and PISA, particularly information on U.S. persons, should be carefully monitored. -I 7-H "If 'l'l ?ll-n" a APPROVED FOR PUBLIC RELEASE a? (a (a raw: This page intentionally left blank. APPROVED FOR PUBLIC RELEASE -- I. PREPARED BY THE OFFICES OF INSPECTORS GENERAL OFTHE DEPARTMENT OF DEFENSE DEPARTMENT OF JUSTICE CENTRAL INTELLIGENCE AGENCY NATIONAL SECURITY AGENCY OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (U) REPORT ON TI-IE SURVEILLANCE PROGRAM REPORT NO. 2009-0013-AS VOLUME I (U) ANNEX TO THE REPORT ON THE SURVEILLANCE PROGRAM VOLUME 11 10 JULY 2009 - 7 - l? ""424 lI-Rtf PREPARED BY OFFICES OF INSPECTORS GENERAL OFTHE DEPARTMENT OF DEFENSE DEPARTMENT OF JUSTICE CENTRAL INTELLIGENCE AGENCY NATIONAL SECURITY AGENCY OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE Special Warning 1113 report contains computnented, classi?ed. material and no Secondary distribution may be made without prior consent of the participating Inspectors General. Improper disclosure of this report may result in criminal, civil, or administrative penalties. REPORT No. 2009?00131 APPROVED FOR PUBLIC RELEASE (U) Table of Contents (U) The Deparment of Defense Inspector General?s Review of the President?s Surveillance Program Central Intelligence Agency Inspector General?s Review of CIA Participation in the President?s Surveillance Program ..11 (U) The National Security Agency, Central Security Service Inspector General?s Review of the President?s Surveillance Program ..45 The Office of the Director of National Intelligence Inspector General?s Review of the Participation of the ODNI in the President?s Surveillance Program ..213 This page intentionally left blank. Report Ne. June .75, REVIEW nspector General United States Departmenth Defense 1' m. Ire? This page intentionally left blank. INSPECTOR GENERAL DEPARTMENT OF DEFENSE 400 ARMY NAW DRIVE ARLINGTON. VIRGINIA 22202-4704 June 26, 2009 MEMORANDUM FOR SECRETARY OF DEFENSE SUBJECT: (U) Report on Review of the President?s Surveillance Program Report No.: 09-INTEL-08 (U) (D) We are providing this report for your information. This report ful?lls the Inspector General?s requirement pursuant to Section 301 of Public Law MO- 261, the Foreign Intelligence Surveillance Act (F ISA) Amendments Act of 2008 (the Act). This report, along with reports prepared by the Inspectors General of the Department of Justice (D01), the Of?ce of the Director of National Intelligence (DNI), Central Intelligence Agency (CIA), the National Security Agency (N SA), will be summarized in a comprehensive report as required by the Act. Results. The OSD role in the establishment and implementation of the PSP was limited, with the burden of program execution residing with the NSA. We determined that there were six OSD of?cials with access to the PSP. These individuals had limited involvement, and did not make any additional tasking decisions beyond those directed for NSA iniplementation. We are aware of no other OSD involvement in the PSP. (U) Background. The Act requires the 165 of the D01, DNI, NSA, the DOD, and any other element of the intelligence community that participated in the President's Surveillance Program to complete a comprehensive review of, with respect to the oversight authority and re5ponsibility of each such 16: All facts necessary to describe establishment, implementation, product and use of the product in the program 0 Access to legal reviews and access to information about the Program a Communications and participation of individuals/entities related to the Program (U) The President's Surveillance Program is de?ned in the Act as the intelligence activity involving communications that was authorized by the President during the period beginning on September 1 l, 2001, and ending on January 17, 2007, including the program referred to by the President in a radio address on December 17, 2005 (commonly known as the Terrorist Surveillance Program). WSW Mulli 0 Interaction with the Foreign Intelligence Surveillance Court and 0 Any other matters identi?ed by the 165 Scope and Methodology. We conducted this review to examine the involvement of the Of?ce of the Secretary of Defense (OSD), Department of Defense (DOD), in the establishment and implementation of the President?s Surveillance Program (PSP). We interviewed current and former of?cials within OSD that had access to the PSP. We withdrew our request to interview Secretary of Defense Gates because he was provided access to the PSP after the program ended. The former Deputy Secretary of Defense Dr. Wolfowitz declined our request for an interview. We reviewed all relevant documentation within OSD and NSA related to involvement in the PSP. We also reviewed documentation at related to the PSP. (U) The IGs of the Do], DNI, NSA, and CIA issued an interim report on September 10, 2008. In the interim report, the IG stated that he would examine the involvement of the Office of the Secretary of Defense (OSD) in the establishment and implementation of the PSP. The NSA, as an agency within performed the requirements of the PSP. As such, the NSA IG is conducting a review of NSA involvement with the PSP separate from this memorandum report. Implementation and Establishment of the PSP. The OSD access to the PSP was limited to six individuals.2 These individuals are Secretary of Defense Robert Gates; former Secretary of Defense Donald Rumsfeld; former Deputy Secretary of Defense Paul Wolfowitz; Under Secretary of Defense for Intelligence James Clapper3; former Stephen Cambone; and Principal Deputy General Counsel Daniel Dell ?Orto. Wme PSP was an extremely sensitive counterterrorism program focused on detecting and preventing terrorist attacks within the United States. The PSP was authorized by the President every 30 to 45 days and was initially directed against international terrorism; after March 2004, the PSP focused speci?cally against al?Qaeda and its af?liates. The Director of Central Intelligence (DCI), and later the DNI, would prepare a Threat Assessment 3 Secretary Gates and Under Secretary Clapper were provided access to the PSP after the PSP was transferred to Foreign Intelligence Surveillance Court supervisiOn. Memorandum, which validated the current threat to the United States. The Secretary of Defense would review and sign the Threat Assessment Memorandum. On three occasions, Dr. Wolfowitz, the former Deputy Secretary of Defense, signed the Threat Assessment Memoranda in the Secretary?s absence. On two occasions, Dr. Carnbone, the formw signed the Threat Assessment Memoranda when Secretary Rumsfeld and Dr. Wolfowitz were unavailable. Once the Threat Assessment Memorandum was signed, the President would then sign a Presidential Authorization with the Threat Memorandum attached. The President would task the Secretary of Defense to employ resources to execute the requirements set forth in the Presidential Authorization. The Attorney General, or his designee, would certify the Presidential Authorization for form and legality. The Secretary of Defense would then direct the actions authorized by the Presidential Authorization to the NSA for implementation. On one occasion, Dr. Wolfowitz, the former Deputy Secretary of Defense, directed the Director of NSA to implement the Presidential Authorization, in the Secretary?s absence. On a separate occasion, Dr. Cambone, the former directed the Director of SA to implement the Presidential Authorization. Interaction with the Foreign Intelligence Surveillance Court. Dr. Wolfowitz also executed two declarations ei Intelligence Surveillance Court. The ?rst, executed 0 was in support of the Government?s Application seeking renewal, in part, of the authority to install and use en re 'ster and tra and trace devices, in order to obtain informatio- pursuant to the Foreign Intelligence Su?rVeilla'nce' ActofTWS sections 1801-1811, 1841-1846, as amended. The initial authority under FISA to install and use pen register and trap and trace devices for that purpo se was anted the Foreign Intelligence Surveillance Court on July 14, 2004* Dr. Wolfowitz's second declaration was executed on- hat declarati i espouse to the Foreign Intelligence Surveillance Court's 7 7 Order requiring the Government to submit a declaration from the Deputy Secretary of Defense discussing violations of the Court?s July 14 Order authorizing SA to install an use en re 'ster and trap and trace devices in order to obtain information about In that declaration, Dr. Wolfowitz stated the circumstances surrounding unauthorized collection that occurred, the disposition of information collected without authorization, steps NSA took to remedy the violation, and measures NSA implemented to prevent recrurence of such violations. . . ?ll. I1 Hi: yon-..-- I .- mimic- 1 APPENDIX (U) REPORT DISTRIBUTION LIST (U) (U) OFFICE OF THE SECRETARY OF DEFENSE Secretary of Defense Under Secretary of Defense for Intelligence Deputy General Counsel, Intelligence OTHER DEFENSE ORGANIZATION Inspector General, National Security Agency NON-DEFENSE FEDERAL ORGANIZATIONS Inspector General, Director of National Intelligence Inspector General, Department of Justice InSpector General, Central Intelligence Agency CONGRESSIONAL COMMITTEES Senate Judiciary Committee Senate Select Committee on Intelligence House Judiciary Committee House Permanent Select Committee on Intelligence This page intentionally left blank. This page intentionally left blank. APPROVED FOR PUBLIC RELEASE CENTRAL INTELLIGENCE AGENCY Office of Inspector General (U) FINAL REPORT Participation in the President?s Surveillance Program Report No. 2008-001 6-118 30 June 2&9 Issue Date VED BC RELEASE This page intentionally left blank. l_ a, RELEASE (U) Table of Contents (U) EXECUTIVE SUMMARY ..1 (U) BACKGROUND .. 3 (U) Origin and Scope of the Review .. 4 (U) The President?s Surveillance Program .. 5 (U) REVIEW RESULTS .. 6 Participation in the President's Surveillance Program .. 6 CIA Prepared the Threat Assessment Memorandums Supporting Authorization of the President's . Surveillance Program .. 7 CIA Tasked and Received Reporting From the President's Surveillance Program .. 9 (UIIFOHO) Procedures and Standards for Requesting information 9 (UH-F9140) Reporting Provided in Response to Requests for Information .. 1O (UHFGUO) Primary CIA Users of the President's Surveillance Program .. 11 (UIIFOHO) CIA Requests for Information Were Adequater Justified .. 13 Senior CIA Officials Believe That the President's Surveillance Program Filled an Intelligence Gap .. 13 The CIA Did Not Assess the Effectiveness of the President's Surveillance Program .. 15 (U) Counterterrorism Successes Supported by the President's Surveillance Program .. 16 Factors Hindered CIA Utilization of the President?s Surveillance Program .. 17 (U) CIA Had Limited Access to Legal Reviews of the President's Surveillance Program 19 CIA Officials Sought to Delay Exposure of the President?s Surveillance Program by the New York Times .. 20 (U) Methodology ..ExhibitA (U) Threat Assessment Memorandum Concluding Paragraph ..Exhibit (U) Example of Link Diagram From August 2002 ..Exhibit (U) Review Team ..Exhibit 7 i its APPROVED FOR PUBLIC RELEASE CIA Participation in the President?s Surveillance Program (U) EXECUTIVE SUMMARY of the Foreign Intelligence Surveillance Act (PISA) Amendments Act of 2008 requires the Inspectors General (IGs) of the elements of the Intelligence Community (IC) that participated in the President?s Surveillance Program (PSP) to conduct a comprehensive review of the program. The results of our review of CIA participation in the PSP are presented in this report, and will be included in the comprehensive report required to be provided to the appropriate committees of Cengress by 10 July 2009. he CIA prepared the threat assessment memorandums that were used to support Presidential authorization and periodic reauthorizations of the PSP. The threat assessment memorandums were prepared by personnel from the CIA Each of the memorandums focused on the current threat situation and did not provr an assessment of the PSP's utility in addressing previously reported threats. The threat assessment memorandum were signed by the Director of Central Intelligence (DCI) and forwarded to the Secretary of Defense to be co-signed. Responsibility for drafting the threat assessment memorandum was transferred to the newly-established Terrorist Threat Integration Center in May 2003 and retained by TTIC's successor organization, NCTC (the National Counterterrorism Center). The DCI continued to sign the threat assessment memorandums through 15 April 2005. Subsequent memorandums were signed by the Director of National Intelligence. WSW CIA and targeters, as PSP consumers, tasked ro and utilized the roduct from the rogram in their analyses. i5 15 Two former Directors, a former Acting Director, and other senior CIA of?cials We interviewed told us that the PSP addressed a gap in intelli ence collection. However, collection of such communications required authorization under FISA, and there was widespread belief among senior IC and CIA o?icials that the process for obtaining FISA authorization was too cumbersome and time consuming to address the current threat. Current and former CIA of?cials emphasized the increased timeliness, ?exibility, and access provided by the PSP as compared to the process for obtaining a warrant under PISA. The CIA did not implement procedures to assess the usefulness of the product of the PSP and did not routinely document whether particular PSP reporting had contributed to success?il counterterrorism operations. CIA of?cials told us that PSP reporting was used in conjunction with reporting from other int of?cers, even those read into the program, would have been unaware of the ?ill extent of PSP reporting. Consequently, there is no means to comprehensively track how PSP information was used. CIA of?cials were able to provide Only limited information on how program reporting contributed to success?il operations, and therefore, we were unable to independently draw any conclusion on the overall use?ilness of the program to CIA. {375357 Several factors hindered the CIA in making full use of the capabilities of the PSP. Many CIA of old us that too few CIA personnel at the working level were read into the PSP. of?cials told us that CIA and targeting of?cers who were read in had too many competing priorities and too many other available information sources and analytic tools?many of which were more easily accessed and timely?to fully utilize the PSP. CIA of?cers also told us that the PSP would have been more fully utilized if and targeting of?cers had obtained a better understanding of the program's capabilities. Many CIA of?cers noted that there Was insuf?cient training and legal guidance concerning the program's capabilities and the use of PSP-derived information. The factors that hindered the CIA inmaking full use of the PSP might have been mitigated if the CIA had designated an individual at an appropriate level of managerial authority, who possessed knowledge of both the PSP and CIA counterterrorism activities, to be responsible and accountable for overseeing CIA participation in the program. There is no indication that personnel from the CIA Of?ce of General Counsel or other CIA components were involved in preparing the legal memorandums supporting the PSP that were produced by the Department of Iustice, Of?ce of Legal Counsel (OLC). CIA OGC personnel had very limited access to these memorandums. Senior CIA of?cials participated in meetings with a New York Times editor and reporter and senior Administration of?cials concerning an article the newspaper was preparing concerning the PSP. Assistant Inspector General for Audit WW 1? 118 This page intentionally left blank. (U) BACKGROUND (U) Origin and Scope of the Review (U) Title 111 of the Foreign Intelligence Surveillance Act Amendments Act of 2008, which was signed into law on 10 July 2008, requires the IGs of the elements of the Intelligence Community that participated in the PSP to conduct a comprehensive review of the program.? The review required to be conducted under the Act is to examine: (A) all of the facts necessary to describe the establishment, implementation, product, and use of the product of the Program; (B) access to legal reviews of the program and access to information about the Program; (C) communications with, and participation of, individuals and entities in the private sector related to the Program; (D) interaction with the Foreign Intelligence Surveillance Court and transition to court orders related to the Program; and (E) any other matters identi?ed by any such Inspector General that would enable that InsPector General to complete a review of the Program, with respect to such Department or element. The interim report required under the Act was submitted to the committees of Congress prescribed in the Act on 10 September 2008. That report described the scope of the work to be conducted by each of the participating IGs, which include the Inspectors General of the Department of Justice, the Of?ce of the Director of National Intelligence, the National Security Agency, the Department of Defense, and the CIA. Our review of CIA participation in the PSP examined CIA's 0 Role in preparing the threat assessments and legal certi?cations supporting periodic reauthorization of the PSP. a Role in identifying targets for the PSP. The President's Surveillance Program is de?ned in the Act as the intelligence activity involving communications that was authorized by the President during the period beginning on I 1 September 2001, and ending on 17 January 2007, including the program referred to by the President in a radio address on 17 Deccmher 2005 (commonly known as the Terrorist Surveillance Program). The classi?ed name for the President?s Surveillance Program is 119) 26 The results of our review of CIA participation in the PSP are presented in this report, and will be included in the comprehensive ?nal report required to be provided to the approyriate committees of Congress by 10 July 2009. (U) The President?s Surveillance Program According to former Director of the NSA. and former Director of the CIA (DCIA) Michael V. Hayden, initial discussions concerning the activities that would become the PSP occurred less than two weeks after the 11 September 2001 terrorist attacks in a meeting between DCI George J. Tenet and Vice President Richard B. Cheney. Although Hayden did not attend the meeting, he was told by Tenet that Cheney asked if the Intelligence Community was doing everything possible to prevent another terrorist attack. In response. Tenet described Cheney then asked if there was more that NSA could do. This led to discussions between Cheney, Hayden, Cheney's legal counsel David S. Addington, and senior NSA of?cials. It was determined that the NSA had the capability to collect additional wire communications that could enhance the 105 counterterrorism efforts, but that new authority was needed to employ the capability. The determination led to the authorization of the PSP by President George W. Bush on 4 October 2001. The PSP was intended to help prevent additional terrorist attacks against the US Homeland. Although the authorized collection activities changed over the life of the program, in general, the program authorized the NSA to acquire content and/or metadata concerning telephone and e-mail communications for which there were reasonable grounds to believe that at least one of the participants in the communication was located outside the US and that a party to RELEASE the communication was af?liated with a group engaged in international terrorism. The collection activities conducted under the PSP were brought under Foreign Intelligence Surveillance Court oversight in stages between July 2004 and January 2007.2 Under the PSP, the NSA collected three sets of data. The ?rst set included the content of individually targeted telephone and e-mail communications. The second set consisted of telephone dialing information?the date, time, and duration of calls; the telep one number of the caller; and the number receiving the call?collected in bulk The third data transactional data collected in bulk (U) REVIEW RESULTS CIA Participation in the President?s Surveillance Program 2 (U) The Foreign Intelligence Surveillance Act of 1978 established the Foreign Intelligence Surveillance Court to oversee requests for surveillance warrants by federal agencies against suspected foreign intelligence agents inside the US. 2?1 22 CIA pefson?el?prep'?imd?fhemthfe that were used to support the initial Pr id ntia reauthorizations of the PSP. assessment CIA Prepared the Threat Assessment Memorandums Supporting Authorization of the President's Surveillance Program W) The CIA initially prepared the threat assessment memorandum that were used to support Presidential authorization and periodic reauthorizations of the PSP. The memorandums documented the current threat to the US homeland and to US interests abroad ?'om al-Qa?ida and af?liated terrorist organizations. The ?rst threat assessment memorandum?The Continuing Near-Term theat?om Usama Bin Ladin?was signed by DCI Tenet on 4 October 2001.3 Subsequent threat assessment memorandums were prepared every 30 to 60 days to correspond with the President's reauthorizations of the PSP. The DCI Chief of Staff, John H. Moseman, was the CIA focal point for preparing the threat assessment me orandum According to appraisals of the current terrorist eat, ocusing primarily on threats to the homeland, and to document those appraisals in a memorandum. Initially, the who prepared the threat assessments read into the PSP and did not know how the threat assessments would be used. drew upon all sources of intelligence in preparing their threat assessments. Each of the memorandums focused on the current threat situation and did not provide an assessment of the PSP's utility in addressing previously reported threats. 3 The title of the threat assessment memorandums was changed to The Global War Against Terrorism in June 2002. WSW Al?e-completed its portion of the memorandums, the Chief of Staff added a paragraph at the end of the memorandums stating that the individuals and organizations involved in global terrorism (and discussed in the memorandums) possessed the capability and intention to undertake further terrorist attacks within the US. Moseman recalled that the paragraph was provided to him initially by either White House Counsel Alberto R. Gonzales or Addington. The paragraph recommended that the President authorize the Secretary of Defense to employ within the US the capabilities of the Department of Defense, including but not limited to signals intelligence capabilities, to collect foreign intelligence by electronic surveillance. The paragraph also described the types of communication and data that would be collected and the circumstances under which they could be collected.4 The draft threat assessme orandums were then reviewed by Of?ce of General Counsel attorneys assigned tmand Acting General Counsel (Senior Deputy General Counsel) John A. Rizzo. Rizzo told us that the draft memorandums were generally suf?cient, but that there were occasions when, based on his experience with previous memorandums, he thought that draft memorandums contained insuf?cient threat information or did not present a com ellin case for reauthorization of the PSP. In such instances, Rizzo would request tha provide additional available threat information or make revisions to the draft memorandums. The threat assessment memorandums were then signed by DCI Tenet and forwarded to the Secretary of Defense to be co-signed. Tenet signed most of the threat memorandums prepared during his tenure as DCI. On the few occasions when he Was unavailable, the Deputy Director of Central Intelligence (DDCI), John E. McLaughlin, signed the memorandums on behalf of Tenet. McLaughlin also signed the memorandums in the capacity of Acting DCI in August and September 2004. In November 2004, Porter J. Goss became DCI and assumed re5ponsibility for signing the memorandums. There were no occasions when the DCI or Acting DCI withheld his signature from the threat assessment memorandum. After they were signed by the Secretary of Defense, the memorandums were reviewed by the Attorney General and delivered to the White House to be attached to the PSP reauthorization memorandums signed by the President. Resp 'lity for drafting the threat assessment memorandums was transferred fro to the newly established Terrorist Threat Integration Center in May 2003. This responsibility was retained by TTIC's successor organization, NCTC. The DCI continued to sign the threat assessment memorandums 4 (U) Exhibit presents the conclusion and recommendation paragraph included in the threat assessment memorandum dated 10 January 2005. Similar language was included in each of the memorandums. 23 24L v. APPROVED FOR PUBLICRELEASE through 15 April 2005. Subsequent memorandums were signed by the Director of National Intelligence.5 (UIIFGHB) CIA Taeked and Received Reporting From the President's Surveillance Program (UII-FGHB) Procedures and Standards for Re uestin ormation PROVED FOR PBLIC RELEASE Primary CIA Users of the President's Surveillance Program .. -. i . i a .. OVED FR PUBLIC RELEASE Senior CIA Officials Believe That the President?s Surveillance Program Filled an Intelligence Gap Former Directors Hayden and Goss, former Acting Director McLaughlin, and other senior CIA of?cials we interviewed told us that the PSP addressed a gap in intelligence collection. Following the terrorist attacks on 1 I September 2001, there was concern that additional acts of terrorism would be perpetrated by terrorist cells already inside the US. owever, co 66121011 0 suc cormnumcatlons require autnonzanon under bi?A, and there was widespread belief among senior IC and CIA of?cials that the process for obtaining FISA authorization was too cumbersome and time consuming to address the current threat. 23 Other senior' CIA ?f?ci?ig it}: that was rcviousl unavailable. 29 The CIA Did Not Assess the Effectiveness of the President's Surveillance Program The CIA did not implement procedures to assess the usefulness of the product of the PSP and did not routinely document whether particular PSP reporting had contributed to successful counterterrorism operations. CIA of?cials, including DCIA Hayden, told us that PSP reporting was used in conjunction with reporting ?om other intelligence sources; consequently, it is dif?cult to attribute the success of particular counterterrorism operations exclusively to the PSP. In a May 2006 bri the Senate Select Committee on Intelligence (SSCI), the Deputy Director?said that PSP reporting was rarely the sole basis for an intelligence success, but that it ??equently played a supporting role. He went on to state that the program was an additional resource to enhance the understandin of terrorist networks and to help identify potential threats to the homeland. Otheri of?cials we interviewed said that the PSP was one of many tools available to them, and that the tools were often used in combination. (U) Counterterrorlsm Successes Supported by the President's Surveillance Program Despite the fact that CIA of?cials we interviewed did not provide much speci?c information on PSP-derived counterterrorism successes, some key counterterrorism operations supported by the PSP were cited in brie?ngs presented by CIA of?cials. In March 2004, the CIA provided a series of three brie?ngs at the White House to senior Administration of?cials and Congressional leaders. These brie?ngs included operational details concerning the PSP as well as examples of program successes. In Ma 2006, the Deputy Director,-briefed SSCI members and staff on the use?ilness toh of the PSP. Several Factors Hindered CIA Utilization of the President?s Surveillance Program Several factors hindered the CIA in making full use of the capabilities of the PSP. Many CIA of?cials told us that too few CIA personnel at the working level were read into the PSP. At the program's inception, a disproportionate number of the 32 we read into the PSP were senior CIA mana ers ?81994?)- of?cials also told us that working-level CIA and targeting of?cers who were read into the PSP had too many competing priorities, and too man ther information sources and anal ic tools available to them, to ?Jlly utilize PSP. of?cials also told us that much of the PSP reporting was vague or without context, which led and targeting o?icers to rely more heavily on other information sources and analytic tools, which were more easily accessed and timely than the PSP. CIA of?cers also told us that the PSP would have been more ?illy utilized if and targeting officers had obtained a better understanding of the program's capabilities. There was no formal training on the use of the PSP beyond the initial read in to the program. Many CIA of?cers we interviewed said that the instruction provided in the read-in brie?ng was not suf?cient and that they were surprised and frustrated by the lack of additional guidance. Some of?cers to at 'ent 1e a1 idance on the use of PSP-derived information. {Sail-PE)- The factors that hindered the CIA in making use of the PSP might have been mitigated if the CIA had designated an individual at an appropriate level of managerial authority, who possessed knowledge of both the PSP and CIA counterterrorism activities, to be res onsible and accountable for overseein CIA artici ation in the re am. 34L (U) CIA Had Limited Access to Legal Reviews of the President's Surveillance Program There is no indication that personnel from the CIA Of?ce of General Counsel or other CIA components were involved in preparing the legal memorandums supporting the PSP that were produced by the Department of Justice, Of?ce of Legal Counsel (OLC). At the time of the initial authorization of the PSP (4 October 2001), Robert M. McNamara, Jr. was the CLA General Counsel. There is no record that McNamara was ever read into PSP, and he retired from the CIA on 15 November 2001. Acting General Counsel John Rizzo was read into the program on 21 December 2001, but, at that time, he was not provided access to the OLC legal opinions. Rizzo told us that by working through Addington, with Whom Rizzo was acquainted, he eventually was allowed to read the OLC legal memorandums at Addington's of?ce in July 2004. Scott W. Muller became the CIA General Counsel on 24 October 2002. Although NSA records do not indicate that Muller was read into PSP, during our interview with Muller, he acknowledged having been read into the program and having read the OLC legal memorandums supporting the program. After Jack L. Goldsmith became the Assistant Attorney General for the Of?ce of Legal Counsel in October 2003, the OLC undertook a reassessment of the legal rationale for the PSP. Muller recounted discussions with Deputy Attorney General James B. Comey I I I .021." around March 2004 conceming the legal basis .Several of the senior CIA 'ae ugh they wererned that the PSP operate within legal authorities, they believed that it was important to continue CIA participation in the program because CIA and targeters had told them that the program was a useful counterterrorism tool. CIA Of?cials Sought to Delay Exposure of the President's Surveillance Program by the New York Times In October 2004, James RiSen, a reporter for The New York Times, contacted the CIA Of?ce of Public Affairs seeking an interview with DCI Goss concerning an article the newspaper was planning on the PSP. Senior of?cials from the CIA, NSA, Of?ce of the Vice President, and the Of?ce of the Secretary of Defense met to discuss a response. On 20 October 2004, DDCI McLaughlin and DCI Chief of Staff Moseman met with the Washington, DC editor of The New York Times, Philip Taubman, and Risen. According to a memorandum for the record prepared by Moseman, McLaughlin did not provide any details regarding the PSP or comment on the legal basis for the program, but he stressed that publication of the article would expose, and potentially compromise, effective counterterrorism tools. Ultimately, based on assurances from Hayden that he would advise them of inquiries om other news organizations concerning the PSP, Taubman and Risen agreed to hold the article and publish it only when it became apparent that other news organizations were preparing their own stories on the PSP. On 16 December 2005, The New York imes published its ?rst article on the PSP: "Bush Lets U.S. Spy on Callers Without Courts." On 17 December 2005, President Bush publicly con?rmed in a radio address the existence of the disclosed portion of the PSP. This page intentionally 16?: blank. 29 5?3 Exhibit A (U) Methodology During our review, we conducted 50 interviews of current and former CIA personnel who had been involved with the President?s Surveillance Program (PSP). Among the senior CIA of?cials we interviewed were former Director of the National Security Agency (N SA) and former Director of the CIA (DCIA) Michael V. Hayden, former Director of Central Intelligence (DCI) and former DCIA Porter J. 6055, and former Acting DCI John E. McLaughlin. We contacted former DCI George J. Tenet for an interview. Tenet suggested that we ?rst interview his former Chief of Staff, John H. Moseman, and then contact him if we still had a need to interview him. Following our interview with Moseman, we contacted Tenet?s of?ce several times to request an interview, but he did not return our telephone calls. 38 Management comments were 1' from Michae W181: John H. Moseman; the Directorw and the Chiew Their comments were considered in preparation of the ?nal report. Exhibit (U) Threat Assessment Memorandum Concluding Paragraph [Excerpt from the Global War Against Terrorism memorandum dated 10 January 2005.] 40 This page intentionally left blank. This page intentionally left blank. Exhibit (U) Review Team This report was prepared by the Operations Division, Audit Staff, Of?ce of Inspector General. Division Chief Pro'ect Manager Auditor Auditor Auditor 44 This page intentionally left blank. Further di addressee I 39 NATIONAL SECURITY SECURITY SERVICE outside lhe ?Momma of H1 2 lnspectaneneralIf: 4?31.- 'vuituu?'v? II INSPECTOR GENERAL REPORT (U) Review of the President?s Surveillance Program ST-09-0002 29 June 2009 Dem WCEnssi? may 2009 Declass'fy On: 46 (U) OFFICE OF THE INSPECTOR GENERAL (U) Chartered by the Director, NSA/Chief, CSS, the Of?ce of the Inspector General (OIG) conducts inspections, audits, and investigations. Its mission is to ensure the integrity, efficiency, and effectiveness of operations; to provide intelligence oversight; to protect against fraud, waste, and mismanagement of resources; and to ensure that activities are conducted in compliance with the Constitution, laws, executive orders, regulations, and directives. The OIG also serves as ombudsman, assisting all employees and af?liates, civilian and military. (U) INSPECTIONS (U) The inspection ?inction conducts management and program evaluations in the form of organizational and ?mctional reviews, undertaken either as part of the annual plan or by management request. The inspection team?s ?ndings are designed to yield accurate and up-to- date information on the effectiveness and ef?ciency of entities and programs, along with an assessment of compliance with laws and regulations; the recommendations for corrections or improvements are subject to followup. The inspection of?ce also partners with the InsPectors General of the Service Elements to conduct joint inspections of the consolidated facilities. (U) AUDITS (U) The internal audit ?mction is designed to provide an independent assessment of programs and organizations. Performance audits evaluate the economy and ef?ciency of an entity or program, as well as whether program objectives are being met and operations are in compliance with regulations. Financial audits determine the accuracy of an entity?s ?nancial statements. All audits are conducted in accordance with standards established by the Comptroller General of the United States. (U) INVESTIGATIONS AND SPECIAL INQUIRIES (U) THE OIG administers a system for receiving and acting upon requests for assistance or complaints (including anonymous tips) about fraud, waste and mismanagement. Investigations and Special Inquiries may be undertaken as a result or irregularities that surface during an inspection or audit; or at the initiative of the InsPector General. 57509-0002 I OFFICE OF THE INSPECTOR GENERAL NATIONAL SEC L1 AG ENCY CE NTRA SECU SERVICE 55p .3 mi)? '39 June 2009 439 DISTRIBUTION SUBJECT: [{cviaw of Presidem?s- Surveillance Program INFORMATION MEMORANDUM 1. WTMS report sunmlm?izes our rexdcw 01' the. Presidenl?s Surveilfancc- ngrum. as mandated by Lhe Foreign Inteliigem-e 2?qu Amcudmmus Ad (al' Fm- additional inl'unnulitm. plcasc: mutant my 0111:? 0:1 301-688-6666. We apprecialx?r the courtesy and m?mperulion extended to our staff throughout the review. r? .. . la GEORGE [Ham-alm- GmcmE 41? 48 DISTRIBUTION: SID OGC a? LEASE Ej?fn (U) OVERVIEW (U) EXECUTIVE SUMMARY For over a decade before the terrorist attacks on 11 September 2001, NSA used its SIGINT authorities to provide information in response to Intelligence Community requirements on terrorism targets. In late September 2001, when the Vice President asked the Director of Central Intelligence what more NSA could do with additional authority, Director identi?ed impediments to enhancing SIGINT collection under existing authorities. He said that in most instances NSA could not collect communications on a wire in the United States Without a court order. As a result, ability to quickly collect and report on a large volume of communications from foreign countries to the United States was impeded by the time- consuming court order a roval rocess. Attempting to obtain court orders fo foreign telephone numbers and Internet addresses was impractical for collecting terrorist communications with speed and agility. Counsel to the Vice President drafted the 4 October 2001 Authorization that established the President?s Surveillance Program (PSP), under which NSA could routinely collect on a wire, for counterterrorism purposes, foreign communications originating or terminating in the United States. Under the PSP, NSA did not target communications with both ends in the United States, although some of these communications were incidentally collected. The PSP gave NSA a capability to loit a key vulnerability in terrorist communications. According to senior NSA leaders, the value of the program was that this SIGINT coverage provided con?dence that someone was looking at the seam between foreign and domestic intelligence domains to detect and prevent attacks in the United States. 49 WW Director said that SIGINT re ortin on an extremist linked ?probably saved "?r'iibr?'lives" than any and is, therefore, the most im ortant SIGINT success of the PSP. SA anal sis Knowledge of the Program was strictly limited at the express direction of the White House, and Director needed White House approval to inform members of Congress about Program activity. Between 25 October 2001 and 17 January 2007, General Michael V. Hayden ieutenant General Keith B. Alexander conducted PSP brie?ngs for members of Congress and staff. NSA activity conducted under the PSP was authorized by Foreign Intelligence Surveillance Court orders by 17 January 2007, when NSA stopped operating under PSP authority. The NSA Of?ce of the Inspector General (OIG) detected no intentional misuse of Program authority. (U) HIGHLIGHTS - (U) PSP establishment, implementation, and product NSA began PSP operations on 6 October 2001. Although the Director of NSA was ?comfortable? exercising the new authority and believed that it was lawful, he realized that it be controversial. Under the PSP, SA issued over reports. This included reports based on collected metadata which was de?ned in the Authorization as include PSP products, all of which were sent to CIA and FBI, were intended for intelligence purposes to develop investi ative leads and were not to be and NSA had no mechanism to track and assess the e?'ectiveness of PSP reporting. (U) Access to legal reviews and program information General Counsel and Inspector General were not permitted to read the 2001 Of?ce of Legal Counsel opinion on the PSP, but they were given access to draft 2004 Of?ce of Legal Counsel opinions. Knowledge of the PSP was strictly controlled by the White House. Between 4 October 2001 and 17 January 2007, people were cleared for access to PSP information. (U) NSA-FISC interaction and transition to court orders PSP-related interaction with the FISC was primarily-briefings to presiding judges, beginning in anualy 2002. Interaction increased when SA and the began to transition PSP activities to FISC orders. After parts of the program had been publicly revealed in December 2005, all members of the FISC were briefed. PSP authorized collection of bulk Internet metadata, telephony business records, and the content of communications transitioned to FISC orders on 14 July 2004, 24 May 2006, and 10 January 2007, respectively. (U) Program oversight at NSA Of?ce of General Counsel and Signals Intelligence Directorate provided oversight of SA PSP activities from October 2001 to January 2007. NSA OIG oversight began after the IG was cleared for PSP information in August 2002. 51] 09-0002 ST- This page intentionally left blank. This page intentionally left blank. 54 (n ?5 a a 3 56 ST-09-0002 This page intentionally left blank. ST-09-0002 For years before the 11 September 2001 terrorist attacks in the United States, NSA had been using its authorities to focus the United States Signals Intelligence (SIGINT) System on foreign intelligence targets, including terrorism, in response to intelligence Community requirements. After the attacks, NSA adjusted SIGINT collection, in accordance with its authorities, to counter the terrorist threat within the United States. in late September, the Vice President asked the Director of Central Intelligence if NSA could do more to prevent another attack. Director responded by describing impediments to collection of terrorist-related communications to the Vice President. Counsel to the Vice President used the information about impediments to draft the Presidential Authorization that established the PSP. (U) SIGINT Efforts against Terrorists before 11 September 2001 over a decade before terrorists attacked the United States in September 2001, NSA was applying SIGINT assets against terrorist targets in response to Intelligence Community requirements. The Signals Intelligence Directorate (SID) Counterterrorism (CT) Product Line led these efforts in accordance with SIGINT authorities, which de?ned what NSA could and could not do against SIGINT targets. (U) Authorized SIGINT activity in September 2001 (U) NSA was authorized by Executive Order (E.O.) 12333, United States Intelligence Activities, 4 December 1981, as amended, to collect, process, and disseminate SIGINT information for foreign intelligence and counterintelligence purposes in accordance with DCI guidance and to support the conduct of military operations under the guidance of the Secretary of Defense. NSA and other Intelligence Community agencies were required by ED. 12333 to conduct intelligence activities in accordance with U.S. law and other E.O. 12333 provisions. (U) Both regulation and Central Secun'ty Service (CSS) policy implemented authorities under E.O. 12333 and speci?ed procedures governing activities that affect U. S. persons Regulation 5240.1-R, December 57 58 ST-09-0002 1982, Procedures Governing the Activities of DOD Intelligence Components that A?ect United States Persons and Policy 1?23, 11 March 2004, Procedures Governing Activities that Affect U. S. Persons). The policy of the U.S. SIGINT System is to collect, retain, and disseminate only foreign communications, which, in September 2001, were de?ned in legal compliance procedures (described below) as communications having at least one communicant outside the United States or entirely among foreign powers or between a foreign power and of?cers or employees of a foreign power. All other communications were considered domestic communications. NSA could not collect communications from a wire in the United States without a court order unless they originated and terminated outside the United States. 2001, authority to collect foreign communications included the Director of authority to approve targeting communications with one co the United States technical devices (such asm i could be employed to limit acquisition of communications to those in which the target is a non-U.S. erson located outside the United States Director could exercise this authority, except when the collection was otherwise regulated, for example, under FISA for communications collected from a wire in the United States. (U) NSA safeguards to protect U.S. persons' Constitutional rights (U) The Fourth Amendment to the U.S. Constitution protects all U.S. persons anywhere in the world and all persons within the United States from unreasonable searches and seizures by any person or agency acting on behalf of the U.S. Government.1 United States Signals Intelligence Directive (USSID) SPOOIS, Legal Compliance and Minimization USSID SPODIB de?nes a U.S. person as a citizen of the United States, an alien lawfully admitted for permanent residence in the United States, unincorporated groups or associations a substantial number of the members of which constitute either of the ?rst two groups, or corporations incorporated in the United States, including U.S. ?ag aircraft or vessels, but not including those entities openly acknowledged by a foreign govemment to be directed and controlled by them. Procedures, 27 July 1993, prescribes policies and minimization procedures and assigns responsibilities to ensure that United States SIGINT System missions and activities are cond?cted in a manner that safeguards U.S. persons? Constitutional rights. (See Appendix G.) the course of normal operations, NSA personnel sometimes inadvertently encounter information to, from, or about U.S. persons. When that happens, they must apply standard minimization procedures approved by the Attorney General in accordance with ED. 12333 and de?ned in USSID SP0018. These procedures implement the constitutional principle of reasonableness by giving different categories of individuals and entities different levels of protection. They ensure that U.S. person information is minimized during collection, processing, dissemination, and retention of SIGINT by, for example, strictly controlling collection with a high risk of encountering U.S. person information and focusing all reporting solely on the activities of foreign entities and persons and their agents. (U) NSA Director Used Existing Authorities to Enhance SIGINT Collection after Terrorist Attacks T-09-0002 6? Win Oval Office Meeting, DCI Explained NSA Director?s Decision to Expand Operations under Existing SIGINT Authorities General Hayden recalled that in late September 2001, he told Mr. Tenet about NSA actions under E.O. 12333 to counter the terrorist threat. Mr. Tenet shared that information with the White House in an Oval Of?ce meeting. We did not interview Mr. Tenet or White House personnel during this review. We asked the White House to provide documentation of meetings at which General Hayden or NSA employees discussed the PSP or the Terrorist Surveillance Program with the President, Vice President, or White House personnel, but we did not receive a re3ponse before this report was published. Therefore, information about the sequence of events leading up to the establishment of the PSP comes from interviews of NBA personnel. (U) Vice President Asked What Other Authorities NSA Needed 61 ST-09-0002 W814 Options to Improve SIGINT Collection Could Not Fill Intelligence Gaps on Terrorist Targets (U) FISA Amendments Considered Hayden said that, in his professional judgment, NSA could not get the needed collection using the FISA. The process for obtaining court orders was slow, and it involved extensive coordination and separate legal and policy reviews by several agencies. Although an emergency authorization provision permitted 72 hours of surveillance without a court order, it did not allow the government to undertake surveillance immediately. Rather, the Attorney General had to ensure that emergency surveillance would 62 WW ST-09-0002 satisfy the standards articulated in the FISA and be acceptable to the F150. Under its authorities, NSA had no other options for the timely collection of communications of suspected terrorists when one end of those communications was in the United States and the communications could only be collected from a wire or cable in the United States. NSA Director Described to the Vice President the lmpediments to Improved SIGIN Collection against Terrorist Targets WAccording to NSA 060, Del has since agreed with NSA that simply processing communications metadata in this manner does not constitute electronic surveillance under the FISA. (53 64L 09-0002 (U HEB-9) After two additional meetings, the Vice President asked General Hayden to work with his Counsel, David Addington. Because early discussions about expanding NSA authority were not documented, we do not have records of attendees or speci?c topics discussed at General Hayden?s meetings with White House representatives. MIL. (up we PRESIDENTIAL Aumomzmlous Between 4- October 2001 and 8 December 2006, President George W. Bush signed 43 Authorizations two modi?cations, and one document described a The authorizations were based on the President?s determination that after the 1 September 2001 terrorist attacks in the United States, an extraordinary emergency existed for national defense purposes. The Authorization documents contained the terms under which NSA executed special Presidential authority and were titled Presidential Authorization for Specified Electronic Surveillance Activities during a. Limited Period to Detect and Prevent Acts of Terrorism within the United States. They were addressed to the Secretary of Defense. (U) SIGINT Activity Permitted under the PSP 65 The authorizations changed over time, ?rst eliminating the possibility that the Authority could be interpreted to permit collection of communications with both ends in the United States and adding an additional quali?cation that metadata could be collected for communications related to international terrorism or activities in preparation for international terrorism.7 Starting in March 2004, the authorizations underwent several adjustments related to DoJ?s Of?ce of Le a1 Counsel?s review of the Authori animations were added to 11 March 2004 and subsequent authorizations, an accompanying statement added that these clari?cations had been previously understood and implemented by NSA and that they applied to past and future activities. Al-Qa?ida - . - .. - - WTbe de?nition of ?terrorist groups? within the authorities was also re?ned, and, for a limited 5 Metadata as de?ned the Autho 'zati See Appendix for information about the types of collection permitted. 66 eriod in 2004 NSA anal were errnitted to query WAccording to General Hayden, the Authorization, for the most part, did not change the communications that NSA could collect, but did change the location from which the A enc could collect them by permitting collectio States. Without that authorization (U) NSA Discussions about the Lawfulness of the Authorization NSA leaders believed that they could lawfully carry out the President?s authorizations. However, they also recognized that the Program would be controversial and politically sensitive. This section describes how key NSA leaders?the Director, the NSA General Counsel, Deputy General Counsel, and Associate General Counsel for 09-0002 TSP-SEW Operations?concluded that the Program was legally defensible. (U) Director of NSA Generals Hayden and Alexander stated that they believed the Authorization was lawful. (U) General Hayden When asked how he had decided to execute an Authorization that some would consider legally and politically controversial, General Hayden said that highest ranking lawyers had advised him, collectively and individually, that the Program was lawful under the President?s Article II powers. He said that three factors in?uenced his decision to implement the Autho?ty. First, NSA would do exactly what the Authorization stated and ?not one electron or photon more.? Second, the Program was simply an expansion of existing SA collection activities. Third, the periodic renewal of the Authorization would ensure that the threat continued to justify the Program. General Hayden said that as time passed, he determined that the Program was still needed. Speci?cally, he and Deputy Director reviewed the DCI threat memorandum for each reauthorization and judged that the threats continued to justify the Program. General Hayden said that no one at NSA expressed concerns to him or the NSA IG that the Authorization was not lawful. Most importantly, General Hayden said that no one outside NSA asserted that he should stop the Program. He occasionally heard concerns from members of Congress, but he sensed general support for the Program from those he briefed outside NSA. He emphasized that he did not just "?ip through slides" during brie?ngs. He wanted to ensure that attendees understood the Program; consequently, brie?ngs lasted as long as the attendees wanted. (U) General Alexander When Lieutenant General Keith B. Alexander became CSS Director in mid?2005, some of the more controversial legal que the Of?ce of Legal Counsel had reviewed its initial Opinion and determined that the remaining three types of collection were legally supportable. (U) NSA Office of General Counsel After the Authorization was signed on 4 October 2001, highest ranking attorneys, the NSA General Counsel and Deputy General Counsel, as well as the Associate General Counsel for Operations, orally advised General Hayden that the Authorization was legal (U) General Counsel After having received the Authorization on 4 October 2001, General Hayden asked NSA General Counsel Robert Deitz if it was lawful. Mr. Deitz said that General Hayden understood that the Attorney General had already certi?ed its legality by signing the Authorization, but General Hayden wanted Mr. Deitz?s view. Mr. Deitz said that on 5 October he told General Hayden that he believed the Authorization to be lawful. He added that he emphasized to General Hayden that if this issue were before the Supreme Court, it would likely rule, although not unanimously, that the Authorization was legal. (U) Associate General Counsel for Operations On 5 October 2001, the General Counsel consulted the Associate General Counsel for Operations at his home by secure telephone. The Associate General Counsel for Operations was responsible for all legal matters related to NSA SIGINT activities. According to the General Counsel, he had not yet been authorized to tell the Associate General Counsel about the PSP, so he ?talked around? it and did not divulge details. The Associate General Counsel was given enough information to assess the lawfulness of the concept described, but records show that he was not o?icially cleared for the PSP until 1 1 October 2001. On Tuesday, 9 October, he told Mr- Deitz that he believed the Authorization was lawful, and he began planning for its implementation. (U) Deputy General Counsel The Deputy General Counsel was cleared for the PSP on 1 1 October 2001. He reviewed the Authorization with Mr. Deitz and the Associate General Counsel for Operations and also concluded that it was lawful. 69 (U) Discussions on Legality attorneys said that their discussions about the Program?s lawfulness took into account the severity of the 1 1 September attacks and the fear that foreign persons were in the United States planning attacks. The NSA attorneys concluded that the Authorization was lawful. Given the following factors, the General Counsel said the Authorization was constitutional and did not violate FISA. a FISA was not a realistic means of addressing the terrorist threat inside the United States because the process lacked speed and agility. a The Authorization was a temporary 30-day grant of authority. a The statute allowed such an exception, or, to the extent that it did not, it was unconstitutional. The NSA attorneys determined that the President could issue the Authorization through his authority under Article of the Constitution to perform warrantiess electronic surveillance for foreign intelligence purposes outside and inside the United States. This conclusion, they said, was supported by the concurring opinion in Youngstown Sheet Tube Co. v. Sawyer, 343 U.S. 579 (1952), and appellate cases? The Congressional Authorization. of Use of Military Force and the canon of constitutional avoidance, which requires a court to attempt to interpret issues so as to avoid constitutional questions, cemented belief that the President?s interpretation of Article II authority had legal merit. United States v. Truong Dink Hung, 629 F.2d 908 Cir. 1980); United States Buck, 548 F.2d 871 (9'h Cir. 1977); Zweiban v. ?r?tchell, 516 F.2d 594 (DC Cir. 1975); United Starar v. Brown 484 F.2d 418 (5"1 Cir. 1973), cert. denied, 415 U.S. 960 (1974); United States v. Burenko, 494 F.2d 5 93 (3'd Cir. 1974), cert. denied, 419 U.S. 881 (1974). WW The Associate General Counsel for Operations described his position: Does Congress have the authority to limit Presidential Article II authority in foreign intelligence collection? Given the threat, this was a perfect storm of events?3,000 people killed, airplanes and buildings destroyed by foreign terrorists, an attack in the United States by a foreign terrorist organization. No one knew where the terrorists were or if there were more terrorists, and NSA had a collection capability unable to because with the FISA. you cannot get WEISA orders needed to cover what you needed covered at that time to look for the terrorists. You go to the President and tell him that there is a statute that prevents you from doing something from a collection standpoint that may protect the United States from a future attack and that while the country is in danger, I have to adhere with a statute and can?t get the amount of warrants I need. Any president is going to say there has got to be a way to do this a federal law can?t let me stand here and watch the country go down the tubes. Does the President have to abide by a statute depriving him of his authority and watch the country go down the tubes? Given the case law of ?ve di?'erent circuits with the Supreme Court denying certiorari in two cases, there was good basis for deciding this. NSA OGC attorneys said that they did not prepare a formal written legal opinion because it was not necessary. The Attorney General had already certi?ed the legality of the Program, and General Hayden had not asked for a written legal opinion. The attorneys also said that they did not have time to prepare a written legal opinion given the pace of operations. After having concluded that the Authorization was lawful, NSA attorneys believed it was important to ensure that implementation of the Program complied with the Authorization, that processes were well documented, and that strict controls and due diligence were embedded into the execution of the Program. Recognizing that the legal basis of the Program might become controversial, they said that they wanted to ensure that execution of the Authority would withstand scrutiny. 71 72 This page intentionally left blank. SA PSP operations began on 6 October 2001 and ended on 17 January 2007 and involved the collection, analysis, and reporting of two types of information: metadata and content. NSA assumed that the PSP was temporary and did not immediately formalize processes and procedures for operations, which were quickly set Up to provide SIGINT on terrorist targets. As the Authorization continued to be renewed, NSA implemented special procedures to ensure that selectors used for metadata analysis and domestic selectors tasked for content collection Were linked to al?Qa?ida, its associates, or international terrorism and that related decisions were documented. NSA did not target communications with both ends in the United States under PSP authority, although some of these communications were incidentally collected, and the found no intentional violations uthon?zation. Over the life of the Program, NSA issued more than products based on PSP data. According to senior NSA leaders, the value of the PSP was that SIGINT coverage provided con?dence that someone was looking at the seam between the foreign and domestic intelligence domains to detect and prevent attacks in the United States. (U) NSA Begins PSP Operations On 4 October 2001, General Hayden received the initial Authorization and informed the SIGINT Director and other key personnel. 73 74 A permanent cover term, was asmgn ed lo Program information on ST-UQ-DOOZ WAuthorization Renewed NSA leaders assumed the PSP would be temporary, so they did not establish processes and procedures for a long-term program, and they had plans to cease operations if the Authorization was not renewed. However, the President continued to renew the Authorization, and General Hayden stated that the DCI threat memoranda accompanying each renewal continued to justify the Program. '75 (U) FISA Authority Still not an Option In 2002 Win January 2002, senior SA leaders still thought that neither the FISA court order process nor the infrastructure associated with FISA collection First Attempt to Obtain FISA Authority 0- Failed. September 2002, NSA attempted to obtain FISA authority to communications 0 nic Wire usmg the standard process for seeking authority on foreign powers and foreign agents. Before preparing an application, NSA submitted a ?Memorandum of Justi?cation? to th 1 76 ST-09-0002 WE) The request was prompted by a CT Product Line staff member, who explained that technical problems delayed receipt of e?ma? collected throu FISC orders the FBI had obtained. In one case, an order listed only terrorist agents of interest to NSA. (U) NSA Structure for PSP Operations (UIIFGHG) NSA Organizational Structure for PSP Activity November 2004 WSW Director Deputy Director Inspector General General Counsel Signals Intelligence Dlrecto rate Ovenrsight (SID, mp anco I I Customer Ana! Is Relationships Frodfcuan Dali! Acquisllion STLW Program Manager or Product Program Una mum Manager for CT ?ham Special Projects) . . Collection . content a PSP Operations my? mandala. (U) Chain of Command Director and Deputy Director exercised senior operational control and authority over the Program. According to NSA's Deputy Director, General Hayden handled ?downtown? and the Deputy Director managed everything within NSA. The SIGINT Director at the start of the Program stated that once she was con?dent that the Program had appropriate checks and balances, she left direct management to the Director, Deputy Director, and the OGC. She noted that General Hayden took personal responsibility for the Program and managed it carefully. By 2004, speci?c roles related to collection, analysis, and reporting had been delegated to the SIGINT Director, who delegated management responsibilities to the Program Manager and mission execution responsibilities to the Chief of the CT Product Line and subordinate leaders. (U) Coordination with FBI On 24- January 2003, NSA, SID, and the FBI agreed to detail FBI ersonnel working under NSA SIGINT authorities to Under the agreement, detailees assisted with terrorism?- related SIGINT metadata analysis, identi?ed and disseminated terrorism?related SIGINT information meeting FBI foreign intelligence information needs, and facilitated NSA analyst access to FBI terrorism~re1ated information. 79 WSW WHIP) Minimization Procedures and Additional Controls on PSP (limitations12 Management emphasized that the minimization rules required under non-P3P authorities also aiilied to PSP. The Authorization sieci?calli directed NSA l2(U) Internal control, or management control, comprises the plans, methods, and procedures used to meet missions, goals, and objectives. It provides reasonable assurance that an entity is effective and ef?cient in its operations, reliable in its reporting, and compliant with applicable laws and regulations. 80 applying USSID SPOO 18 minimization procedures. For example, and as described in the following sections: a When encountered U.S. person information, they handled it in accordance with minimization guidance, which included reporting violations or incidents. a Dissemination of U.S. person information was minimized by requiring pre-release veri?cation that the information was related to counterterrorism and necessary to Understand the foreign intelligence or assess its importance. In addition, as PSP operations stabilized and the Authorization continued to be renewed, NSA management designed processes and procedures to implement the Program effectively while ensuring compliance with the Authorization and protecting U. S. person information. By April 2004, formal procedures were in place, many of which were more stringent than those used for non?PSP SIGINT operations. One analyst commented that the PSP ?had more documentation than anything else [she] had ever been involved with.? Examples of controls, some of which will be explained in more detail in the following sections of this report, include: - prrovals?Shi? Coordinators approved foreign and domestic target selectors for metadata analysis. The Chief or Deputy of CT Product Line Chief or the Program Manager approved domestic selectors for content collection under the PSP. Documentation?RFls, tippers were Justi?cations for leads, tasked tracked in the contact chaining were reCOrded, and justification packages and approvals for tasking domestic selectors for content collection were formally documented. 8i ST- 09-0002 WMonitoring?Sta?stics on content tasking and reports were maintained and reviewed by SID, Oversight and Compliance by 2003. A CT Product Line employee stated: [N]owhere else did SA have to report on selectors and how many selectors were rolled off [detasked] and why.? a wees} OGC involvement?Personnel working under PSP authority noted that they had a continuous dialogue with the OGC on what was permissible under the Authorization. The Associate General Counsel for Operations con?rmed that the OGC ?was involved with the operations people day in and day out.? a met-re) Due Diligence Meetings?The PSP Program Manager chaired due?diligence meetings attended by operational, OIG, and OGC personnel. They discussed OIG and OGC reviews and Program challenges, processes, procedures, and documentation. WPSP Operations: Metadata (TS ?metadata? as message metadata includes the sender and recipient e-mail addresses. It does not include the subject line or the text of the e-mail, which are considered content. Telephony metadata includes such information as the calling and called telephone numbers, but not spoken words. 51109-0002 83 ST-09-0002 Process to Conduct Metadata Analysis Wtandards for Conducting Metadata Analysis During an OIG review in 2006, the Associate General Counsel for Operations described OGC's standards for complying with the terms of the Authorization when conducting metadata analysis and contact chaining. conduct contact chaining under the PSP, the Authorization required that NSA meet one of the following conditions: 1] at least one party to the communication had to be outside the United States, 2) no party to the communication could be known to be a U.S. citizen, or 3) based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there were Speci?c and articulable facts giving reason to believe that the communication relates to international terrorism or activities in preparation therefor. The Associate General Counsel for Operations said that guidance was more stringent than the Authorization in that the DOC always required that the third condition be met before contact chaining began. were required to establish a link with designated groups related to international terrorism, al?Qa?ida, or al- Qa?ida af?liates.? Associate General Counsel for Operations said that establishing a link to international terrorist groups or al- Qa?ida and its af?liates met the Authorization?s requirement that all activities conducted under the PSP be for the purpose of detecting and preventing terrorist acts within the United States. He expl because the President had determined that international terrorist groups al-Qa?ida presented a threat within the United States, regardless of where members were located, linking a target selector to such groups established that the collection was for 3m) Smith v. the purpose of detection and prevention of terrorist acts within the United States. In a 2005 Program memorandum, NSA OGC de?ned the NSA standard for establishing a link to al-Qa?ida under the PSP. NSA could target selectors when ?based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are reasonable grounds to believe a party to such communication is an agent of al-Qa?ida, or a group af?liated with acts giving rise to ?reasonable grounds for belief? means reliable facts in possession, either derived from its signals intelligence activity, or facts provided to NSA by another government department or agency, or facts reliably in the public record a newspaper article). Whatever the source of information, the key is that NSA is basing its determination on articulable facts, not on bare assertions made by someone else. We need evidence, rather than conclusions. Thus a mere statement that person is a member of al Qaeda, without more information, will not suf?ce as a justi?cation for chaining or for content tasking. Instead we need to know what facts have led SA, or another agency, or the press, etc., to that conclusion. Focus on the facts and determine whether they lead to a conclusion, rather than accepting someone else?s conclusion. If you don?t have enough facts to make a determination, ask for them. In addition, the stande does not require certain knowledge, or even necessarily a better than 50/50 chance that the user of a phone or e-mail is a member of al Qaeda or an af?liated organization. It requires only that a reasonable and prudent person exercising good judgment would conclude that there are grounds for behaving the thing to be proved. It is not mere hunch or mere suspicion, nor is it proof beyond a reasonable doubt or even a preponderance of the evidence; rather, the standard requires some degree of concrete and articulable evidence or information on which to base a conclusion. (U) Approvals for Metadata Analysis 85 86 W) If the standard for establishing a link to al- Qa?ida could not be met based solely on the information provided in the RFI or lead, could search NSA and Intelligence Community databases and chain under non?PSP authorities to ?nd additional facts to substantiate the link. Shift coordinators were not req all alert-list selectors that might have generate chaining. One individual, the equivalent of a shift coordinator, managed and monitored the alert process. When NSA personnel identi?ed erroneous metadata collection, usually caused by technical collection system problems or inappropriate application of the Authorization, minimization procedures required them to report the violation or incident through appropriate channels and to delete the collection from all SA databases. Early in the Program, SA reported three violations in which the Authorization was not properly applied and took measures to correct them. 0 W) In chained on numbers associated wi In this case, the target was foreign, but there was no link to terrorism. WSW) chained on a domestic telephone number rovided by the FBI that was related to investigation. In this case, the target posed a terrorist threat inside the United States, but there was no known link to international terrorism. 9 chained on metadata based on provided by FBI related While the ere associated with internahonal terrorism, 'd not pose a threat of terrorist attacks inside the united States. Metadata Needed for Effective Contact Chaining 7 Effective contact chaining requires large amounts of metadata, sometimes called bulk metadata, ore data ?elds more com lete chains. Under PSP authori obtained a daily average of approximatel telephony metadata records and an estimate Internet metadata records. Metadata obtained un er bt? authorities was stored in a protected database, to which only cleared and trained personnel were given access. NSA were able to aCcess and chain through metadata records, but they could view only records associated with an approved foreign intelligence target. This was a small fraction of the metadata available. For example, in August 2006, NSA estimated that only 0.000025 percent or one in every four million archived bulk telephony records was expected to be viewed by trained SIGINT W) This estimate was presented in the August 2006 application for the Business Records Order, the F130 Order that permitted collection of call detail records. Although this estimate applies to collection and analysis of telephony metadata conducted under the Business Records Order, the same processes and 88 ST-09-0002 WPSP Operations: Content PSP content operations involved three separate activities: tasking selectors for content collection, collecting the content of communications associated with tasked selectors, and analyzing the content collected. To comply with the Authorization, NSA management combined standard minimization procedures and Specially designed procedures to task domestic selectors, collect the resulting communications, and analyze and report the foreign intelligence they contained. Over the life of the Program, SA tasked approximatel foreign and domestic selectors for content collection. Tm Tasking Selectors for Content Collection ?Tasking? is the direct levying of SIGINT collection requirements on designated collectors. must task selectors to obtain a target?s communications. tseIore men personnel tasked target selectors for PSP content collection, the Authorization required that target selectors com 1 with two criteria. First the had to det as described in guidance issued by OGC in 2005. Second, the purpose of the collection had to be the prevention and detection of terrorist attacks in the United States. The OGC provided the same guidance for tasking selectors for content collection as it had for contact chaining. Speci?cally, because the President had determined that al? Qa'ida presented a threat within the United States, regardless of where its members were located, Linking a target selector to designated international terrorist groups or al-Qa?ida and its af?liates, established that the collection was for the purpose of detection and prevention of terrorist acts Within the United States. techniques were used under the PSP, making this a reasonable comparison. This estimate was based on data available in August 2006 and cannot be replicated. WAppmvals to Task Domestic Selectors for Content Collection WSA determined whether foreign selectors met the Authorization criteria and tasked them without further approval. However, because NSA leadership considered selectors located in the United States to be extremely sensitive, the associated tasking process required extra documentation, reviews, and approvals than foreign selector tasking under the PSP. l6(U) From 2005 to 2007, SID. Analysis and Production leadership titles changed. The Primary Production Center Manager became the primary approval authority for tasking packages. Most Selectors Tasked for Content Collection Were Foreign. [n 2008, NSA reported to a member of Congress that domestic telephone numbers and-domestic Internet a resses were tasked for PSP content collection from October 2001 to January 2007. Domestic selectors were located in the United States and associated with alsQa?ida or international terrorism and were not necessarily used by US. citizens. In a 2008 Attorney General Certi?cation, NSA reported the foreign telephone numbers and in excess 0 oreign Internet addresses had been targeted from October 2001 through December 2006, which Spams all but one month of the Program. NSA could not precisely estimate the number of 90 WW foreign Internet addresses targeted because the tools used by before September 2005 did not accurately account for the number of individual addresses targeted. In 2006, the DIG Found that Justi?cations for Tasking Domestic Selectors Met Authorization Criteria. During a 2006 review, the OIG found that all items in a randomly selected sample of tasked domestic selectors met Authorization criteria. Based on a statistically valid sampling methodology, the OIG was able to conclude with 95 percent con?dence that 95 percent or more of domestic selectors tasked for PSP content collection could be linked to al-Qa?ida, its associates, or international terrorist threats inside the United States. Justi?cation packages for all sample items tested were supported by one or more of the following types of information: 0 Information associated with or obtained through FBI investigations. Process to Task Selectors 91 2005, the OIG found that the largely manual process to task and detask selectors for co collection was unreliable. Speci?cally, the OIG foun errors when comparing records of domestic telephone numbers and Internet identi?ers approved for PSP content collection as of November 2004 with those actually on collection. The errors consisted of selectors that had not been removed from collection after being detasked, had not been put on collection after having been approved, had been put on collection because of a typo a hical error or had not been accurately recorded in the In response to the OIG finding, management took immediate steps to correct the errors and set up a process to reconcile approved tasked selectors with selectors actually on collection. Collecting the Content of Communications Collection refers to the process of obtaining communications after selectors associated with intelligence targets are tasked for collection at designated sites. Data collected under the PSP was stored in protected partitions in NSA databases. Access to the partitions was restricted to PSP?cleared personnel. WThe Authorization required that a collected communication originate or terminate outside the United States. NSA did not intentionall communications under the PSP. alan me ur Lane to ensure that collected ata was as intende ho ized. Accordin to PSP ro am of?cials Its purpose was to collect international cemmunications. However, management stated that: guarantee reared [domestic] calls Will be collected. Issues of this kind inevitably arise from time to time in other SIGINT operations, as foreseen by Executive Order 12333, and are thus not peculiar to [the WW The Program Management Of?ce identi?ed four ways that NSA might have unintentionally collected non-target data: a A target could have been correctly tasked using valid selectors, but, in addition to collecting the desired target communications, non-target communications were inadvertently collected. a A valid target selector could have generated target? specl?c collection that ultimately proved the target not to be related to al-Qa?ida. A technical, human, or procedural error in the target identi?cation or tasking process could have resulted in unintentional collection of communications not related to al-Qa?ida. - Technical collection system problems could have resulted in unintentional collection of non-al?Qa?ida related targets, even when all steps in the target identi?cation and tasking process had been properly executed. ver the life of the Program, NSA reported ncidents of unintentional collection of domestic communications an incidents in which the wrong selector had been tas . (See Appendix for details.) in those cases, personnel followed USSID SP0018 procedures and were given detailed instructions to report the violations or incidents, adjust tasking, and delete collection records from SA and other databases. Analyzing the Content of Collected Communications Witnalysis of content collected under the PSP involved the same practices and techniques used in non-PSP operations. One NSA manager des the PSP as ?'ust one more tool in the anal sts? toolkit.? 7 Collects communications were then necessary, and processed to make them useful for intelligence analysis and reporting. Analysis included not only listening to or reading the contents of a communication, but drawing on target knowledge, coordinating and collaborating with other and integrating collateral information, metadata, and information from databases and published intelligence 94L reports to determine Whether the communications included foreign intelligence that was timely, unique, actionable, and reportable. A Serialized report is a formatted intelligence product produced pursuant to ussm 0121400 that has a reference serial number, contains foreign intelligence information derived from SIGINT, and goes to approved users of intelligence. NSA issued-additional reports between 17 January 2007 and December 2008 that were based on analysis of data previously collected under PSP authority. metadata Analysis Reports (Tippers) Reports a on metadata anal sis were referred to as ?ti ers." SA retained documentation of the analysis, supporting customer request or lead information, and a description of the link to terrorism for tippers based on PSP collection. Documentation of analysis was not retained unless a tipper was written. Counterterrorism personnel updated information in a computer tracking system to re?ect the disposition of all metadata analysis requests. From October 2001 through January 2007, NSA issued tippers to FBI and CIA: - I tippers were based on Internet metadata analysis. - -tippers were based on telephony metadata analysis when telephone numbers had only direct contact (one degree of separation) with a known terrorist as de?ned by the Authorization. 41 95 96 .- 5 3? APPROVED 0 -tippers were based on more detailed telephony metadata analysis that included contacts with two degrees of separation from known terrorists. ST-09-0002 .tippers were based on telephony and Internet metadata analysis. Content Reports W139 co anal sis Protection of U.S. Person Information in Reporting Before sending PSP reports to customers, SA removed unnecessary U.S. person information, as required by minimization procedures in USSID SPOOIB. The 01? Product Line reviewed PSP reports to ensure that they had been written in accordance with these procedures. Oversight and Compliance of?ce then reviewed PSP reports containing U.S. person information. Oversight and Compliance personnel reviewed U.S. person information in reports, determined if it was necessary to understand the foreign intelligence in the reports, and submitted recommendations for the inclusion of U.S. person information to SID, Chief of Information Sharing Services for ?nal approval. For example, if an individual?s name was not necessary to understand the foreign intelligence in the report, the name was deleted or changed to ?a U.S. person.? WW ST-09-0002 versight and Compliance did not review tippers based on metadata analysis. When NSA began to issue tippers based on the content of communications, SID adapted its procedures for the dissemination of U.S. person information. Additional Oversight and Compliance personnel were cleared for the Program to assist with reviews. They gave PSP and other terrorism reporting priority for review over other Agency reporting. (D) Use of SIGINT Product customers for PSP All products included this statement: This information is provided only for intelligence purposes in an effort to develop potential investigative leads. It cannot be used in court proceedings, subpoenas, or for other legal or judicial purposes. Value of the PSP Referring to portions of the PSP in 2005, General Hayden said there were probably no communications more important to NSA efforts to defend the nation than those involving al?Qa?ida. NSA collected communications when one end was inside the United States and one end was associated with al-Qa?ida or international terrorism in order to detect and prevent attacks inside the United States. General Hayden stated that ?the program in this regard has been successful.? During the May 2006 Senate hearing on his nomination to be CIA Director, General Hayden said that, had the PSP been in place before the September 2001 attacks, hijackers Khalid Almihdhar and awaf Alhazmi almost certainly would have been identi?ed and located. May 2009, General Hayden told us that the value of the Program was in knowing that SA SIGINT activities under the PSP covered an important ?quadrant? (terrorist communications between foreign countries and the United States). This coverage provided con?dence that there were ?not additional terrorist cells in the United States.? Deputy Director, who was the SID Deputy Director for Analysis and Production on 11 September 2001, echoed WW General Hayden?s comment: ?The value of the PSP was in the con?dence it provided that someone was looking at the seam between the foreign and domestic intelligence domains." WThe former SID Deputy Director for Data Acquisition said that the pos The PSP gave NBA a capability to exploit a key vulnerability in terrorists' communications: With PSP authori NSA cou tWeen Current der cited SIGINT reporting on as the most important SIGINT success of the PSP. NSA anal sis of PSP General Alexander said, ?probably saved more lives" than any other PSP info From an operational standpoint, the PSP enabled NSA to: a Support customers - Provide SIGINT that contributed to customers? investigative work Support to Customers numbers do not account for requests submitted before NSA began to use an automated tracking system in April 2002. WSWBased on infor btained under PSP 98 WW ST-09-0002 and FBI. In the early days of the Program, the FBI said that the large number of tippers from NSA was causing them unnecessary work because agents treated each tipper as a lead requiring action. General Hayden said that intention was that SIGINT information be added to knowledge base, not that the FBI act on each piece of information. When NSA realized that it was sending too much data to the FBI, the Agency made appropriate adjustments. PSP Reporting Contributed to Customers? Investigative Work. For example, an FBI brie?ng dated 4 May 2006 stated that continues to provide timely and carefully vetted intelli ence to support investigations in connection with operations]." did not routinely provide feedback on NSA reporting under the PSP, and NSA had no mechanism to track and assess the effectiveness of SIGINT reporting in general or PSP reporting in particular.19 Tracking PSP contributions was also dif?cult because customers did not know that fihgfw 7 General Hayden noted that success stories decrear time as intelligence became more integrated and it became more dif?cult to attribute success to any one activity. The Program Management Of?ce provided the following exam les of PSP re ortin that helped redirect FBI resources? _viewed as vulnera 1e to terrorism targeting. The examples also include cases in which NSA provided reporting that contributed to FBI investigations, FBI con?dential human sources, FISA warrants, arrests, and convictions. 'icemr) In July 2007, SID initiated a formal effort to assess the effectiveness of its CT efforts. By the fall of 2007, that effort was struggling. - a9? a APPROV FOR PUBLIC RELEASE (U) Case Name (U) PSP Contribution i100 (U) Case Name (U) PSP Contribution 439W Case Name PSP Contribution I. . WW PROEDFR PLIC RELEASE ST-OQ-DOOZ (U) PSP Information (U) Description of SIGINT Reporting 5 RELEASE 09-0002 WW (U) PSP Information (U) Description of SIGINT Reporting W4 ST-09-0002 (U) PSP Information (U) Description of SIGINT Reporting a IV BLIC RELEASE ST-D9-0002 (U) PSP Information (U) Description of SIGINT Reporting RELEASE APPROVED FOR PUBLIC RELEASE . . '1 PPROVED ST-09-0002 WW >u 13" a. I11l'l'l I11 IAPROVED FOR RELEASE ST-09-0002 62 ME ST-09-0002 ST- 09-0002 Ln 75 a 8 12 March, the President directed to continue working on the legal issues, and on 15 March OLC issued a three page memorandum to the Deputy Attorney General stating that, while it had only begun to analyze the issues and was not at re ared to issue a ?nal opinion, it believed that?types of collection authorized under the PSP were legally supportable. OLC had not et develo ed a su ortable argument to justify 1% The Assistant Attorney General for OLC issued a memorandum on 6 May 2004 concluding that operati describ in the inion was lawful. A 16 Jul memorandum 11 held the 6 May opmionw l23 ST-09-0002 minimization probable cause standard states that Agency may target for collection I 73 "a This page intentionally left blank. 1128 ?1130 The OIG issued a report for each of the 13 investigations and reviews described above. Ten reports on PSP activity resulted in 11 recommendations to management; 10 have been closed, and one remains open. Three reports on FISC-approved activity previously authorized by the PSP contained nine recommendations to management; three have been closed and six remain open. eginning in January 2007, violations that had occurred under the Authorization and violations related to PSP activity transitioned to court orders were reported quarterly to the President?s Intelligence Oversight Board (through the Assistant to the Secretary of Defense for Intelligence Oversight). WW ST-09-0002 (U) Recently Reported Incidents All related records were purged from NSA databases in 2004; therefore, it was not possible to determine the exact nature and extent of that collection. The SA OIG will close out this incident in an upcoming report to the President?s Intelligence Oversight Board. On 15 January 2009, the Department of Justice reported to the F180 that NSA had been using an ?alert list" to compare incoming business records FISA metadata against telephone numbers associated with counterterrorisrn targets tasked by NSA for SIGINT collection. NSA had reported to the Court that the alert list consisted of numbers for which SA had determined that a reasonable articulable suspicion existed that the numbers were related to a terrorist or anization associated However, the majority of selectors on the alert list had not been subjected to a reasonable articulable suspicion determination. The SA OIG has reported this incident to the President?s Intelligence Oversight Board and has ?led updates as required. The alert list and a detailed NSA 60-day review of processes related to the Business Records FISC order were the subject of several recent submissions to the F180 and of NSA brie?ngs to Congressional oversight committees. ?1131] 1132 (U Other IG Program concerns were documented in the 2003-2008 reports. Presidential Noti?cations are listed and described in Appendix F. The 2008 report described the adequacy of Program decompartmentation plans. ST-09-0002 (U) Acnonvms AND ABBREVIATIONS Bits per Second BR Business Records CDR Call Detail Records CIA Central Intelligence Agency COMINT Communications Intelligence CT Counterterrorism DCI Director of Central Intelligence DNI Director of National Intelligence Department of Defense Department of Justice E0 Executive Order FAA FISA Amendments Act FBI Federal Bureau of Investigation FISA Foreign Intelligence Surveillance Act FISC Foreign Intelligence Surveillance Court GC General Counsel Gigabits per Second HPSCI House Permanent Select Committee on Intelligence IG Inspector General LAN Local Area Network NSA A National Security Agency CSS National Security Agency] Central Security Service 0&0 Oversight and Compliance ODNI Of?ce of the Director of National Intelligence OGC Of?ce of the General Counsel OIG Of?ce of the Inspector General OIPR Office of Intelligence Policy and Review (now the Of?ce of Intelligence, National Security Division) OLC Of?ce of Legal Counsel 1134: WW PM Program Manager Pen Register/ Trap Trace PSP President?s Surveillance Program RFI Request for Information SID Signals Intelligence Directorate SIGINT Signals Intelligence 8301 Senate Select Committee on Intelligence SCI Top Secret/ Sensitive Compartmented Information (U) GLOSSARY OF TERMS (U) COMINT (U) no. 12333 (U) FISA w- METADATA (U) SANITIZATION (U) Communications Intelligence technical and intelligence information derived from foreign communications by someone other than the intended recipients (U) Executive Order 12333 United States Intelligence Activities - provides goals, duties, and responsibilities with respect to the national intelligence effort. It mandates that certain activities of U.S. intelligence components are to be governed by procedures issued by agency heads and approved by the Attorney General. (U) The Foreign Intelligence Surveillance Act of 1978, as amended, governs the conduct of certain electronic surveillance activities within the United States to collect foreign intelligence information. Analytic tool for contact chaining used by to do target discovery by quickly and easily navigating global communications metadata Header, router, and addressing?type information, including telecommunications dialing-type data, but not the contents of the communication NSA's primary storage, search, and retrieval mechanism for SIGINT text (U) The process of disguising COMINT to protect sensitive intelligence sources, methods, capabilities, and analytical procedures in order to disseminate the information outside COMINT channels. BS ?1]36 (U) SIGNALS INTELLIGENCE (U) TEAR LINE REPORTS (U) TELEPHONY (U) TIPPERS (U) A category of intelligence comprising individually or in combination all communications intelligence (COMINT), electronic intelligence (ELINT) and foreign instrumentation intelligence (FISINT), however transmitted. (U) Reports used to disseminate derived information and sanitized information in the same record. The sanitized tear line conveys the same facts as the COMINT?controlled information, while hiding COMINT as the source. (U) The technology associated with the electronic transmission of voice, fax, and other information between parties using systems historically associated with the telephone a. ?49 (U) About the BVBW APPENDIX A This page intentionally left blank. 1138 (U) Objectives ST-09-0002 (U) about the Review (U) The Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008, which was signed into law on 10 July 2008, requires that the Inspectors General of Intelligence Community elements that participated in the President?s Surveillance Program (PSP) conduct a comprehensive review of the Program. The NSA Of?ce of the Inspector General (01G) reviewed participation in the PSP. The speci?c review objectives were to examine: a (U) The establishment and evolution of the PSP as it affected NSA (U) NSA implementation of the PSP, including preparation and dissemination of product under the PSP 0 (U) SA access to legal reviews of the PSP and access to information about the Program a (U) NSA communications with and representations made to private sector entities and private sector participation 0 (U) NSA interaction with the Foreign Intelligence Surveillance Court (F180) and transition of PSP- authorized collection to court orders a (U) Oversight of PSP activities at NSA. (U) Scope and Methodology (U) This review was conducted in accordance with generally accepted government auditing standards, as set forth by the Comptroller General of the United States and implemented by the audit manuals of the and 055 Inspectors General. (U) The review was conducted from 10 July 2008 to 15 May 2009 in coordination with the Inspectors General of the Department of Defense, Of?ce of the Director of National Intelligence, CIA, and 49W The scope of this review was limited to participation in the PSP from 4 October 2001 to 17 January 2007. The review included NSA activities before and after the terrorist attacks of 1 1 September 2001 that led to the Presidential Authorization on 4 October 2001. It also included the transition of PSP-authorized activity to FISC orders. To satisfy review objectives, we interviewed current and former NSA personnel who participated in the PSP including NSA Directors and Deputy Director, General Counsels, Deputy General Counsels, Associate General Counsels for Operations, and the Inspector General responsible for Program oversight from A August 2006. We also interviewed forme as well as leadership within the Signals Intelligence Directorate. Interviews of the former Director of NSA, General Hayde eneral Counsel for Operations, were conducted with other IG of?ces involved in the joint PSP review. We requested White House documentation of meetings at which General Hayden or NSA employees discussed the PSP or the Terrorist Surveillance Program with the President, Vice President, or White House personnel, but did not receive a response before publication of this report. We reviewed NSA records dated 27 July 1993 to 10 July 2008 that pertained to review objectives. Records included NSA policies and regulations, correspondence, e?mail, brie?ngs, notes, reports, calendars, and database reports. Numbers of selectors tasked and reports issued were based on information provided by the PSP Program Management Office and were not independently veri?ed during this review. 1140 (U) Prior Coverage Hesse) Information about individuals cleared for access to Program information was based on records provided by the PSP Project Security Of?cer and were not independently veri?ed during this review. The OIG began oversight of the PSP and related activities in August 2002 and issued twelve reports dated 21 February 2003 through 30 June 2008 (Appendix E.) The OIG also issued 14 Presidential noti?cations from March 2003 to October 2006 (Appendix F). Detailed discussion of the oversight of the PSP is included in Section of this report. As portions of the Program were transitioned to FISC orders for the collection of intemet metadata and telephony business records, the OIG reviewed the execution and adequacy of controls in ensuring compliance with the orders. The OIG did not test the ef?cacy of controls for metadata collected under the authority of the PSP or court orders. Three reports summarized OIG investigations into possible misuse of the Authority or violations of FISC orders. One report summarized the 016?s oversight of the PSP, and the last report reviewed the adequacy of Program decompartmentation plans. 1141] a :3 This page intentionally left blank. i? APPENDIX (U) The Presidential Authorizations a This page intentionally left blank. ?r 51109-0002 (U) The Presdentlal Authorizations The Authorization documents that contained the terms WSW under which NSA executed special Presidential authority were addressed to the Secretary of Defense and were titled ?Presidential Authorization for Speci?ed Electronic Surveillance Activities during a Limited Period to Detect and Prevent Acts ates.? The ?rst Authorization consisted There were 43 Authorizations, two modi?cations, and one document uescnoeo as ST-09-0002 4W Signature of President The Authorizations were signed by the President, followed by a place and date of signature. All but one authorization was signed in Washington, DO. (U) Other Signatures Under the phrase ?approved for form and legality," the Attorney General signed all but one of the Authorizations. The other authorization and the two modi?cations were signed by the Counsel to the President. 115 APPENDIX (U) Timeline of Key Events 1151] ram This page intentionally left blank. ST-09- <3 3 TWW ST-09-0002 (U) Timeline of Key Events (UH-13936) This timeline includes key events that occurred during implementation of the President?s Surveillance Prograjn (PSP). In addition to issuances of the Authorization, the timeline includes selected communications between and Con?essI the Foreign Intelligence Surveillance Court (FISC), Because the timeline is limited to documented events and-"communications, it is not all-inclusive. 2001 4-Oct-01 1st Presidential Authorization signed 4-Oct-01 General Hayden briefs White House (President, Vice President VP Counsel. VP Chief of Staff, White House Counsel) 25-Oct-01 NSA briefs Chair and Ranking Member of House Permanent Select Committee on Intelligence (HPSCI), Chair and Vice Chair of Senate Select Committee on intelligence (SSCI) 2-Nov-01 2nd Presidential Authorization signed 14-Nov-01 NSA briefs Chair and Ranking Member, HPSCI, Chair and Vice Chair. SSCI 30-Nov-01 3rd Presidential Authorization signed 4-Dec-01 NSA briefs Chair. Senate Defense Appropriations Subcommittee, and Ranking Member. Senate Defense Appropriations Subcommittee 5 Dec 01 NSA briefs FBI Director Mueller 2002 4th Presidential Authorization signed 11?Jan-02 NSA briefs Department of Justice, Of?ce of intelligence Policy and Review OIPR). James Baker 31-Jan-02 NSA briefs FISC Presiding Judge Lamberth 5?Mar-02 NSA briefs Chair and Ranking Member, HPSCI. and Vice Chair, SSCI 5th Presidential Authorization signed 14-Mar-02 153 10-Apr-02 NSA briefs Chair SSCI 18-Air-02 6th Presidentlal Authorization si ned 17-May-02 NSA-brlefs incumbent. sisc Presiding Judge Kollar-Kotelly 22-May-02 12-Jun-02 NSA briefs Chair. HPSCI. and Ranking Member HPSCI 3-Jul-02 NSA briefs Chair and Ranking Member SSCI 30-Jul-02 12-Aug-02 NSA briefs FISC Presiding Judge Kollar-Kotelly at the White House 13-Aug-02 NSA Inspector General US) cleared for the PSP 1 0-Sep-02 10th Presidential Authorization signed 11-Sep-02 NSA 60, Deputy General Counsel (60). Associate GC for Operations. and [8 meet to discuss PSP oversiiht 18-Sep-02 NSA Due Diligence Meeting 30-Sep-02 Chair HPSCI visits NSA for brie?ng 1 5-Oct-4112 13-Nov.oz 12th Pre id tal 16-Dec-02 NSA IG advises General Hayden to issue "Delegation of Authority Letters" to "units that administer the project? 2003 83-Jan-03 13th Presidential Authorization signed 154- 13-Jan-03 FBI Director visits NSA for brie?ng 29-Jan-03 NSA briefs Chair and Ranking Member. Chair and Vice Chair. 850] 7-Feb-03 14th Presidential Authorization signed 4-Mar-03 General Hayden issues ?rst Delegation of Authority letter to key Signals Intelligence (SIGINT) Directorate operational personnel 17-Mar-03 15th Presidential Authorization signed 22-Apr-03 16th Presidential Authorization si ned 11-Jun-03 17th Presidential Authorization signed 14-Jul-03 18th Presidential Authorization signed 17-Jul-03 NSA briefs Chair and Ranking Member. HPSCI, Chair and Vice Chair. SSCI 10-Sep-03 ntial Authorization si ned 155 8-Oct-03 conference at NSA to discuss PSP operations and customer needs 15-Oct-03 20th Presidential Authorization signed 1-Dec-03 NSA IG announces a review of NSA PSP operations NSA lG asks VP Counsel for access to PSP legal opinions and is told that a request should come from General Hayden 9-Dec-03 2?lst Presidential Authorization signed 9-Dec-03 IG memo asks General Hayden to ask VP Counsel's permission for NSA IG and GC to obtain copies of. or View, PSP legal 'lusti?cation 2004 B-Jan-04 NSA briefing to Mr. Philbin. Mr. Goldsmith for Mr. Goldsmith's orientation to the PSP and other NSA Signals Intelligence efforts against terrorism 8-Jan-04 NSA and meet to discuss the PSP and recent changes at NSA 14-Jan-04 22nd Presidential Authorization slined 9-Mar-04 General Hayden briefs Director of Central Intelligence on value of the PSP 10-Mar-04 General Hayden briefs White House Counsel and Chief of Staff, Deputy DCI. Deputy AG. and Bl Director on value of the PSP 10?Mar-04 General Hayden briefs Speaker of the House. Senate Majority and Minority leaders. House Minority Leader. Chairman and Ranking Member. and Chair and Vice Chair. SSCI 10-Mar?04 General Hayden briefs Secretary of Defense. Principal Deputy GC 11-Mar-04 23rd Presidential Authorization signed 11-Mar?04 NSA IG and Acting GC discuss new Authorization signed by President's COUnsel rather than the AG 11-Mar?04 NSA briefs House Majority Leader 12?Mar?04 General Hayden briefs House Majority Leader 19-Mar-04 Revision to 23rd Presidential Authorization signed General i-la 156 2-Apr-O4 2nd Revision to 23rd Presidential Authorization signed 41-Apr-04 General Hayden briefs Principal Deputy GC 5-Mai-D4 24th Presidential Authorization 5i ned 20?May?04 NSA briefs the Minority Leader of the Senate 23-Jun-04 25th Presidential Authorization signed 14-Jul-04 lama lira/Trader approved by Flee 9-Aug-04 26th Presidential Authorization signed 23-Aug-04 General Hayden briefs National Security Adviser and Homeland Security Adviser 17-Sei-O4 27th Presidential Authorization signed 23-Sep-04 Presidential ?further direction" of 9 August 2004 expires 23-Sep-O4 NSA briefs Chair, HPSCI 17-Nov-04 28th Presidential Authorization signed 2005 5?Jan?05 NSA briefs National Security Advisor and White House Counsel 11-Jan-05 29th Presidential Authorization signed 157 3?Feb-05 'iisA Ranking Member. Chair and 25-Feb-05 General Hayden briefs White House Counsel and Counsel to Deputy AG 1-Mar-05 30th Presidential Authorization signed 2-Mar-05 19-Apr-05 31st Presidential Authorization si ned 22-Apr-05 23?May-05 Two-level PSP clearance structure discontinued 1-Jun-05 Discussions to seek orders to authorize content collection begin with OLC 14-Jun-05 32nd Presidential Authorization siined 26-Jul-05 33rd Presidential Authorization sl - ned 3?y DNI Hayden briefs new Director General Alexander on the PSP 10-Sep-05 34th Presidential Authorization signed 14-Sep-05 NSA briefs Chair and Ranking Member. Chair and Vice Chair. SSCI 26-Oct-05 35th Presidential Authorization si ned 1 3-Dec-05 36th Presidential Authorization signed 16-Dec-05 New York Times says that President secretly authorized NSA - eavesdro in on Americans 20-Dec-05 DOD receives letter. signed by 39 Congressmen. requesting a review of the PSP. IG faxes the letter 21-Dec-05 NSA briefs DNI 158 2006 3?Jan-06 1 ?i-Jan-OS 20?Jan-06 27-Jan-06 31-Jan-06 11-Feb-06 16-Feb-06 28-Feb-06 NSA 1G and IG discuss letter from 39 Congressmen requesting IG review of the PSP NSA briefs nine FISC judges and three FISC legal advisors NSA briefs Speaker of the House. Senate Majority Leader. Chair of HPSCI. Chair and Vice Chair. SSCI NSA briefs Senate Minority Leader. House Minority Leader. Chair SSCI. and Ranking Member HPSCI 37th Presidential Authorization signed NSA briefs FISC Jud Scultin NSA briefs Speaker of the House and Chair. HPSCI NSA briefs Chair and Ranking Member. House Appropriations 3-Mar-06 9~Mar?06 10-Mar-06 13-Mar-06 14-Mar-06 21-Mar-06 21-Mar-08 NSA briefs Vice Chair. SSCI NSA briefs Chair and Vice Chair. SSCI. and Members of SSCI Terrorist Surveillance Program (TSP) Subcommittee (Roberts. Rockefeller. Hatch, DeWine. Feinstein. Levin. Bond) with SSCI Minority and Majority Staff Directors. Senior Director for Legislative Affairs. National Security Counsel. VP. AGI White House Counsel. and VP Chief of Staff NSA briefs Mr. Bond. Member. SSCI TSP Subcommittee NSA briefs Chair. SSCI TSP Subcommittee. Members SSCI TSP Subcommittee (Roberts. Feinstein. and Hatch). SSCI Majority and Minority Staff Directors. and SSCI Counsel at NSA NSA briefs Mr. DeWine. Member. SSCI TSP Subcommittee at NSA 38th Presidentiai Authorization signed NSA briefs FISC Judge Bates 27-Mar?06 29-Mar-06 NSA briefs Mr. Levin. Member. SSCI TSP Subcommittee and Minority Staff Director at NSA NSA briefs Chairman and Ranking Member HPSCI TSP Subcommittee. TSP Subcommittee Members (Hoekstra. Harman. McHugh. Rogers. Thombeny. Wilson. Davis. Holt. Cramer. Eshoo. and Boswell). Majority General Counsel. Staff Member. and Minority General Counsel 159 7-Apr-06 NSA briefs Chairman of the HPSCI TSP Subcommittee. HPSCI TSP Subcommittee Members (Hoekstra. McHugh, Rogers, Thornberry. Wilson, and Holt), Majority General Counsel, Staff Member, and Minority General Counsel at NSA 28-Apr-06 NSA briefs Ranking Member, HPSCI TSP Subcommittee, Members of HPSCI TSP Subcommittee (Harman. Wilson, and Eshoo). Majority General Counsell Staff Memberl and Minorii General Counsel at NSA 11-May-06 NSA briefs Chair and Ranking Member House Appropriations Committee Defense Subcommittee 16-May-06 39th Presidential Authorization signed 17-May-06 Chair SSCI, Members, SSCI (Roberts, Hagel, Mikulski. Snowe, DeWine. Bayh. Chambiiss. Lott, Bond, Levin, Feingold. Feinstein, Wyden. Warner). SSCI Staff Member, SSCI Majority Staff Director, and SSCI Counsel 17-May-06 HPSCI Chair, HPSCI Members (Hoekstra, Harman. Wilson, Eshoo, Rogers, Thornberry, Holt, Boswell, Cramer, LaHood, Everett, Gallegly, Davis, Tlahrt, Reyes, Ruppersberger, and Tierney). Majority General - Counsell Staff Directorl and Minorii General Counsel 24-May-06 First Business Records Order approved by the FISC 5-Jun-06 NSA briefs Ms. Feingold, SSCI Member at NSA 7-Jun-06 NSA briefs Ranking Member. Senate Defense Appropriations Subcommittee, and SSCI Staff Director 7?Jun-06 NSA briefs President's Privacy and Civil Liberties Oversight Board 9-Jun-06 NSA briefs Chair, SSCI, SSCI Members (Mikulski, Wyden. and Hegel), Minority Staff Director. SSCI Counsel, and SSCI Staff Director 15-Jun-08 NSA briefs Chair. SSCI and SSCI Members (Roberts, Mikulski. Feingold. Bayh, Snows, Hatch, Lott, and Bond), and Minority Staff Director 26?Jun-06 NSA briefs Chair, Senate Defense Appropriations Subcommittee, and House Minority Leader 30?Jun-06 NSA briefs Mr. Bayb, SSCI Member at NSA 6-Jul-06 40th Presidential Authorization signed 10-Jul-06 NSA briefs Ms. Snowe, SSCI Member and SSCI Counsel at NSA 18-Jul-06 NSA briefs Mr. Chambliss, Member at NSA 6-Sep-06 41 st Presidential Authorization signed 160 24-Oct-06 42nd Presidential Authorization signed 20-Nov-06 NSA briefs President?s Privacy and Civil Liberties Oversight Board 8-Dec-06 43rd and ?nal Presidential Authorization signed - 2007 10-Jan-07 Content orders approved by the FISC 17-Jan-07 AG letter to Congress: Presidential program brought under the FISC 1-Feb-07 NSA briefs President?s Privacy and Civil Liberties Oversight Board 1-Feb-07 Presidential Authorization expires 161 This page intentionally left blank. 69 F- APPENDIX (U) Cumulative Number of Clearances for the President?s Surveillance Program 116 63 $5 This page intentionally left blank. SIT-09- 0002 WNWWE WW 51109-0002 (U) Cumulative Number of Clearances for the President's Surveillance l'mgram4 This page intentionally le? blank. ?1166 ST-09-0002 APPENDIX (U) NSA Office of the Inspector General Reports on the President's Surveillance Program and Related Activities 116? . .l h. APPROVED FOR RELEASE This page intentionally left blank. $68 ELEASE (U) Of?ce of the inspector General Reports on the Freeman-It?s Surveillance Program and Related Activities WTMS appendix lists and describes OIG investigation and review reports of activity conducted under the PSP, also referred to as the STELLARWIND Program, and related activities such as the Pen Register Trap and Trace Order and the Business Records Order. These reports are limited to activity conducted between 4 October 2001 and 17 January 2007. (U) OIG Investigations (U) Report of Investigation of Two Violations the OIG issued a report on what it believed to be the ?rst two violations of Authorization, both of which were unintentional. The first incident occurred on NSA analyst misguidedly communications between These communications were foreign within the meaning utho ation but the were not terrorist related. second incident occurred on when SA ina ro riatel erforrned This query was re uestcd an FBI of?cial durin the investigation 0* 4344-1313) NSA OIG found that in neither incident had NSA personnel acted with intent to disregard their authority. Both incidents occurred, at least in part, because early in the Program the terms of the Authorization were so closely held that few, if any, operational personnel working under the Authority were permitted to see the Authorization or its operative provisions. [t was unreasonable to hold persons accountable for violating an order that they had not seen, when the order was too complex to be easily committed to memory. Accordingly, the OIG did not recommend disciplinary action, but did recommend that the NSA Director issue formal written delegations of authority to the Signals Intelligence Director and speci?ed subordinates so that personnel working the Program would know the precise terms of the Authorization. Management concurred with the recommendations and made appropriate noti?cations. This report was sent to SSCI on 31 May 2006 and HPSCI on 2 January 2008. foreign Surveillance Court couecr inter-net under the pen register] trap-and? trace provisions of the FISA 1841-1846 . The authority to collect Internet metadat Material acquired under the Order continued to be protected in PSP channels. W011 NSA OIG issued a report on an investigation of a management breakdown that had resulted in unintentional ?ltering violations of the F180 Order. The Order permitted NSA to collect Internet metadata from communications involving However, no violations resulted from the collection of domestic communications. An NSA collection manager discovered the violations on?. The following day, the questionable collection was stopped and reported to the OIG and the OGC. With the exception 0 the OIG 1WD I PUBLIC RELEASE Wom? ST-09-0002 found no reason to believe that any violations resulted in the collection of i formation. The OIG reserved 'ud eat on . The OIG evaluation of responsibility for the incident led directly to the replacement of the Program Manager and to changes in Program management, leadership, and chain of command. This report was sent to SSCI on 31 May 2006 and HPSCI on 2 January 2008 and was redacted at the request of the White House. - lemental Re art on Violations of Court Orders in A follow?up investigation of the questionable revealed no additional violations. On OIG issued a its examination 0 that the OIG suspected ated or terminated outside the United States. reported outside NSA. This report was sent to SSCI on 31 May 2006 and HPSCI on 2 January 2008. (U) DIG Reviews 14 May 2004 Need for Documentation and Development of Key Processes (ST-0443024) his 016?: report concluded that a continuing de?ciency in clear, written procedures governing the collection, processing, and dissemination of PSP material created undue risk of unintentional violations of the Authorization. The report noted that Program of?cials had ?IlTll ?1172 13 Sep 2004 BI RELEASE 1" PPROVED OR made progress in addressing some of these de?ciencies, but found that processes had not been fully documented in the form of management directives, administrative policies, or operating manuals. The NBA OIG recommended that Program of?cials formally adopt rigorous, written operating procedures for the following key processes: a Approvals for content collection by the appropriate named of?cials 0 Reporting of violations of the Authority, similar to procedures for documenting violations of Legal Compliance and Minimization Procedures5 0 Evaluation of dual FISA and PSP content collection a Systematic identi?cation and evaluation of telephone numbers and Internet identi?ers for detasking.?i (UH-F6661 Corrective action was taken in response to the four recommendations. This report was sent to SSCI on 31 May 06 and HPSCI on 2 January 2008. for Increased Attention to Security-Related Aspects of the STELLARWIND Program (ST-04-0025) This OIG report disclosed weaknesses in Program security. The Program was particularly vulnerable to exposure because it involved numerous organizations inside and outside NSA. While the Program Manager placed a strong emphasis on personnel security, he did not take a proactive and strategic approach to physical and operational security. In particular, better use of the Program Security Of?cer would have helped to improve special security practices for handling Program material and strengthen operations security (OPSEC) . [ff-986) The Program Manager and the Associate Director for Security and Counterintelligence concurred with the ?ndings and implemented corrective measures. In particular, ce 21 Nov 2005 IC RELEASE ST-09-0002 the Staff Security Of?cer was freed from other responsibilities and took a more active and effective role in Program security. Management did not conduct a formal OPSEC survey as recommended; however, steps taken by management to implement OPSEC practices met the intent of the original recommendation. [ff-666) This report was sent to SSCI on 31 May 2006 and HPSCI on 2 January 2008. eview of the Tasking Process for STELLARWIND us. Content Collection (ST-04-0026) '3 report identi?ed material weaknesses in the tasking and detasking process under the PSP. The process to task and detask telephone numbers for content collection under the Program was inherently fragile because it was based on e-mail exchanges and was not automated or monitored. The OIG examined telephone numbers and Internet identi?ers approved for content collection on the date in November 2004- When the audit began and identified the following types of errors: involved under-collection; identi?ers were not put on collection quickly enough or were not put on collection until the OIG discovered the errors. involved unauthorized collection caused by a typographical error. I - involved over-collection; they were not removed from collection quickly enough. - record-keeping errors in the Program?s tracking database of unauthorized collection caused by a typographical error, NSA personnel did not review the collected information before destroying it, nor did NSA issue any report based on, or Wseminate, any information from the of untimely detasking. However, without a robust and reliable collection and tracking process, NSA increased its risk of unintentionally violating the Authorization. NSA also increased the risk of missing 17: sr-09-0002 valuable foreign intelligence by failing to task telephone numbers and Internet identi?ers in a timely manner. WEB) NSA OIG recommended that all errors be swiftly resolved, that speci?c procedures be adopted to prevent recurrences, and that identi?ers tasked for collection be reconciled with identi?ers approved for tasking, and repeated every 90 days. Management implemented the recommendations. This report was sent to $801 on 31 May 2006 and HPSCI on 2 January 2008 and was redacted at the request of the White House. 31 May 2006 Review of Compliance with Authorization Requirements for STELLARWIND U. 3. Content Collection (ST-0441027) Whis report determined that, based on a statistical sample, Program of?cials were adhering to the terms of the Authorization and the Director?s delegation thereunder; that tasking was appropriately approved and duly recorded under the Authorization; and that tasking was justi?ed as linked to al-Qa?ida or a?iliates of al-Qa?ida. The report recommended improvements in record-keeping practices. to a lack of suf?cient and reliable data, the SA OIG could not reach a conclusion on the tasking approval process for two PSP-related collection programs. The OIG recommended that management responsible for the affected programs, design and implement a tasking and tracking process to allow managers to audit, assess timeliness, and validate the sequencing of tasking activities. Management agreed to install automated tracking of taskng and detasking. #SHS-I?hLN-F-l-Although the collection architecture was designed to produce one?end-foreign communications, inadvertent collection of domestic communications occurred and was addressed. The OIG recommended changes in management reporting to improve the tracking and resolution of inadvertent collection issues. (UH-11936) Corrective action has been completed for one of the two recommendations. 1174 ST-09-0002 11 Jul 2006 5 Sep 2006 This report was sent to SSCI on 31 May 2006 and HPSCI on 2 January 2008 and was redacted at the request of the White House. Wupplementai Report to Review of Compliance with Authorization Requirements for STELLARWIND U. 5. Content Collection After issuing the original report, the NSA OIG conducted further research to determine whether Program of?cials were approving content tasking requests based solely on metadata analysis. Using the statistical sample in the original audit, the OIG found no instances of metadata analysis as the sole justification for content tasking. In all cases tested, there was corroborating evidence to support the tasking decision. fFOUGj?This report was sent to SSCI on 13 February 2007 and HPSCI on 2 January 2008. WReport on the Assessment of Management Controls for implementing the Foreign intelligence Surveillance Court Order: Telephony Business Records (ST-06-0018) On 24- May 2006, the telephony metadata portion of the PSP was transferred to FISC Order BR-06-05, In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Ta rs Relatin to The Order authorized NSA to collect and retain telephony metadata to protect against international i iiocess and disseminate this data reiarding On 10 July 2006, in a memorandum with the subject FISA Court Order: Telephony Business Records 0018), the NSA OIG issued ?a report to the Director of NSA 45 days after the initiation of the activity [permitted by the Order] assessing the adequacy of the management controls for the processing and dissemination of U.S. person information.? This report was issued with the Office of the General Counsel?s concurrence as mandated by the Order. The ?Report on the Assessment of Management Controls for Implementing the Foreign Intelligence Surveillance TIE Court Order: Telephony Business Records 5 September 2006, provided the details of the ?ndings of the 10 July memorandum and made formal recommendations to management. controls governing the processing, dissemination, data security, and oversight of telephony metadata and U.S. person information obtained under the Order were adequate and in several aspects exceeded the terms of the Order. However, due to the risk associated with the collection and processing of telephony metadata involving U.S. person information, the NSA recommended three additional controls regarding collection procedures, reconciliation of audit logs, and segregation of duties. Procedures ?Sj?f-S?H?f-PFF?j?During an OIG review of collection procedu Pro ram management discovered that SA was obtaining data that mi ht not have been in kee in with the OGC advised data should have been suppressed from the incoming data ?ow. Immediately, management blocked the data ?'om view. Further, working with the providers, Program management completed suppression of the suspect data on 1 1 October 2006 and agreed to implement additional procedures to prevent the collection of unauthorized data. WReconciliation of Audit Logs controls were not in place to verify that telephone numbers approved for querying were the only numbers queried. Although audit logs documented the queries of the archived metadata, the logs were not in a usable format, and Program management did not routinely use them to audit telephone numbers queried. Management concurred with the recommendation to conduct periodic reconciliations; however, action was contingent on the approval of a Program management request for two additional computer Programmers. Inf-Ti Fall 1176 LEASE Week of Segregation of Duties The seven individuals with the authority to approve queries also had the ability to conduct queries under the Order. Standard internal control practices require that key duties and responsibilities be divided among different people to reduce the risk of error and fraud. Although Program management concurred with the ?nding, it could not implement the recommendation due to staf?ng and operational needs. As an alternative, Program management agreed to develop a process to monitor independently the queries of the seven individuals. This action plan was contingent on the development of usable audit logs recommended above. (U [Fe-He) Corrective action has been completed for one of the three recommendations. This report was sent to 8801 on 13 February 2007 and HPSCI on 2 January 2008. 20 Dec 2006 WAVE-Summary of OIG Oversight 2001-2006 STELLARWIND Program Activities (ST-07-0011) On 20 December 2006, the OIG issued a report summarizing oversight of the STELLARWIND Program after ?ve years of implementation. This report was sent to 3801 on 13 February 2007 and HPSCI on 2 January 2008 and was redacted at the request of the White House. Assessment of Management Controls to Implement the FISC Order Authorizing NSA to Collect Information Using Pen Register and Trap and Trace Devices (ST-OG-OOZO) DIG reported that the management contfolsgove?rriiri?g the collection, dissemination, and data security of electronic communications metadata and U.S. person information obtained under the FISC Order authoring NSA to collect Internet metadata using devices were adequate and in several aspects exceeded the terms of the Order. Due to the risk associated with the processing of electronic communications metadata involving U.S. person information, additional controls were needed for processing and monitoring queries made against data, documenting 1177 1178 ST-09-0002 5 Jul 2007 30 June 2008 oversight activities, and providing annual refresher training on the terms of the Order. Corrective action has been completed for two of the six recommendations. and HPSCI Domestic Selector Tasking Justification Review (3 T-07-00 1 7) The OIG conducted this review to determine whether tasking justi?cation statements were supported with intelligence information consistent with sources cited in the justi?cations. The OIG identi?ed some justi?cations containing errors, but there was no pattern of errors or exaggeration of facts or intentional misstatements. (UH-Fable) This report was sent to 8801 on 28 January 2008 and HPSCI on 28 January 2008. dvisory Report on the Adequacy of STELLARWIND Decompartmentation Plans (ST-08-0018) #Sf-fSI-l-f-N-F-j At the request of the SID Program Manager for CT Special Projects, the OIG assessed the adequacy of plans to remove data from the STELLARWIND compartment, as authorized by the Director of National Intelligence. On 30 June 2008, the OIG reported that NSA management had a solid foundation of planning for decompartmentation. In particular, the content, communication, and assignment of supporting plans were adequate to provide reasonable assurance of successfully removing data from the STELLARWIND compartment, while complying with laws and authorities. Management was also diligent in assessing the scope and complexity of this undertaking. Although the OIG made no formal recommendations, it suggested improvements to develop more detailed plans, set ?rm milestones, and establish a feedback system to ensure that plans were successfully implemented. [Fe-Bej-This report was not sent to SSCI or HPSCI. APPENDIX (U) Presidential Notifications =15 Q9 This page intentionally left blank. SST-09- 0002 ST-09-0002 (U) Presidential Noti?cations Executive Orders 12333 and 12863 require intelligence agencies to report to the President, through the President's Intelligence Oversight Board, activities they have reason to believe may be unlawful or contrary to executive order or presidential directive. Knowing that Board members were not cleared, however, the NSA Director or Deputy Director reported the following violations of the Presidential Authorization and related authorities to the President through his Counsel, rather than through the Board. Each noti?cation was approved if not actually drafted by OIG. Some of the noti?cations were not the subject of the OIG reviews or investigations discussed in Appendix E. (U) Summary of Noti?cation WW Describes a dela of about 90 da 3 etaskin a tele hone number Describes the investigation mentioned above regarding metadata collection violations that occurred under FISA Court he complete 01G report was issued Describes-ins anal mistakenl accessed data instance, a report based on such data went out, but it was not cancelled because the same information was available othe instances no re orts were issued. i182 it 1' APPROVED FOR 7? i UBLI (U) Date (U) Summary of Noti?cation Describes one instance of inadvertent collection of a call with both ends in the U.S. a fact the co known until it was listened to W) Describes three incidents: The ?rst involved a one-digit typo resulting in one incorrectly tasked number. The second involved a number improperly tasked for metadata analysis. The operator discovered it almost immediatel and removed it from tasking. The third involvedh numbers that were not detasked in a timely fashion. 2 Aug 2005 Describes the evolving a practice that may have resulted in over- collection. efers to work in developing more rigorous Des The error was not discovered tor to months. WW Although most of thc% irn ro erl collected was also properly acquire ?pursuant to statute, the data?ow was terminated immediately upon discovery. Also, because the improperly collected metadata had been forwarded to non- STELLARWIN databases, the Agency removed non-compliant metadata from all affected databases, including those in which STELLARWIND data is normally stored. ST-09-0002 (U) Date (U) Summary of Noti?cation Describe instances in which authorized targeting of properly taske telephone numbers resulted in inadvertent collection 0 . No reporting was generated, and collection was deleted. Describes an incident in which an discovered within hours when ersonnel res onsible for monitoring The error was corrected, and all inadvertently co ecte recor were deleted. WWI-F) Describe in which authorized targeting of properly tasked ad rt telephone numbers rcsu ve No reporting was generated, an collection was ete . authorized targeting of properly tasked telephone numbers res we cut collection of U.S.-to- . each case No reporting was generated, and collection was etc . Describes an instance where a Although no reports were generated, and there was no evidence that communications were collected, we could not cc that the ?les were all one- end foreign without reviewing ?les were deleted and rocedures used were being reviewed. A second incident was reported in which a typographical error res ntact chaining on a U.S. telephone number with no iliation. The telephone number was rechecked, and the error was corrected. 09-0002 ST- This page intentionally left blank. A. on ?u ST-09-0002 APPENDIX (D) United States Signals Intelligence Directive SPDO18, Legal Compliance and Minimization Procedures 118$, 09- ST- This page intentionally left blank. 19 aumearzea REPnaammr-z :aumazaawj M143 NATIONAL. SECURITY AGENCY GENTRAL SECURITY SERVICE Fort George G. Meade, Maryland UNITED STATES SIGNALS INTELLIGENCE DIRECTIVE 18 27 July 1993 INCLUDES 1 and 2 See Letter of Promulgation far instructions on reproduction or release of this: documen?. This page intentionally left blank. ilBB NATIONAL SECURITY AGENCY CENTRAL SECURITY SERVICE Fort George G. Meade, Maryland 27 July 1993 UNITED sures SIGNALS etess?rws (ussm) ?lB LEGAL. AND MINEMIZATEQM PPDGEDURES LETTER OF (U) This USSID prescribes policies and procedures and assigns responsibilities to ensure that the missions and [motions of the United States SIGINT System (U833) are conducted in a manner that safeguards the constitutionai rights 01 U3. lU) This USSID has been completely rewritten to make it shorter and easier to understand. It a summary of Its-3 laws and regutations directly attesting U333 operations. All osrsunnel who csltect. process. retain. or disseminate to. lrorn, car about U.S. persons or pars-ans in the United States must be tarniliar with its contents. This? USSIE) supersedes USSID 13. and USSID 18. Annex A [distributed separatety to setected recipients). bath of which are dated 20 OctoEEr 1935, and must now be destroyed- Notify Manager} if this edition of 18 is destroysd because of an smergenq- astiori; otherwise. requesx epproust from before destroying this USSID. Release or exposure of this docurne it to contractors and cansuttants witlmul approval from the Manager is prohibited. to release or exposure at USSID to contractors and consultants may be found in USSID 19. 459% Questions and comments sense min. I i SID 3 (mid he addressed. to the Of?ce 01 the General Counsel. NSTS 95343 :21 a Vice Admiral. US. Navy Director intentionally left blank. This page CHANGE REGISTER CHANGE Authority (Mag CiiefDTG. Hard Copy {ch EBOCTQ HARDCOPY CHANGE 130211?0307?98, HIBDDZ Dec 93 11 Deng/8 P021 141389438. T318402 Dec 98 (correction to above} No Date USSR) 18 July 1993 ENTERED Date By RS 11 D9398 WF 11 WF 6 This page intentionally left blank. 13 27 July 1993 TABLE OF CONTENTS sscnonx?PREFAGEForaign lntetfigance Surveillance Court Approval . . . . . . . . I I I b. Attorney GeneralApproval o. .. d. EmergencySitua?ons .. e. Annual?apurts . . . . . . . . . . . . . . . . . . . . . .. . - I . . . 4,3. Incidemal Acquisition of U5. Person Intormalion . .. . . . . . . . . . . . . . . . . . . . . . . . .. 4.4. Nonresident Alien Targets Entering the Uniied States . . . . . . . . . . . .. . .. . . . . . . . - A. . U.S. Person Targets Entering the Uni?ed States . . . . . . . . . .. . . . .. . . . . . . . 4.6. Requests to Target U5. Persons . . . . . . . . -, .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 4.9. COMSEG Monimring and Sammy Testing of Automated Information Systems .. . . . . . . . . . . 5-1. Use ofSelec?nn Tani?Is During Prccessing . -. .. . . . .. . .. . . .. . 5.5.3. Material 5-4. Nonfnraign CommunicationCommunications between Persons in ?ne United Staies - .. . . .. b. Communications between US. Persons . .. . .. .. . . . . . . . . . . . . .. c. Communicabons [making an Officer or Employee . . . . . . . . . .. 1" 1.73.1 5.5. Radio Communications with a Terminal in the United States . . . . . . - .. . .. .. . . . . 7 SECTION .. 8 6.1. Retention of Communications to, from. or About U.S. Persons . .. . - . . . a. Unenciphored Communications: and Communications Necessary to Maintain Technical Data Bases for or Analytic Purposes . . . .. . . . .. .. 3 in. Communications Which Could be Disseminated Under Seation 7 .. 5.2. 8 SECTION 7 - DISSEMINATION . . . . . . . . . . . .. . .. .. 8 Focus SIGINT Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 7.2. Dissemination of us. Person Identities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9 a. .. 9 b. Publicly Available Information . . . . . . . . . . - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 c. Information Necessary to Understand or Access .. Fieid Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. to c- DDOandDesigneesit) 7.4. Privileged Communications and Criminal ActivitiIt} 15. Improper Dissemination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 SESTtosl E. - RESPONSIBILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . .. i 11 SJ- inspectorGenerel . . . . . . . . . . .. ii 8.2. General Counsei . .. . . . . . . . . . . . . . . . . . . . . . - .. . . . . . . . . . . . . . . . . . . . . . 11 8.3, Deputy Dir-actor for Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4. Ali Elements SECTION DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ANNEX A PROCEDURES THE FOREIGN INTELLIGENCE .. p.11 APPENDIX I PROCEDURES FOR NSA ELECTRONICSURVEILLANCES -.. .. 194 15.} 13 July 1993 ANNEX OPERATIONAL ASSISTANCE TO THE FEDERAL BUREAU OF INVESTIGATION (ANNEX INTELLIGENCE SUPPORT TO US. AND ALLIED EXERCISE COMMAND AUTHORITIES .. . . ANNEX OF ELECTRONIC EQUIPMENT (ANNEX SEARCH AND DEVELOPMENT OPERATIONS (ANNEX ILLICIT . . . . . . . . . . . . . . . . . -. . . . . . . . . . . . ANNEX OF PERSONNEL IN THE OPERATION AND USE OF SIGINT COLLECTION AND OTHER SURVEILLANCE EQUIPMENT (ANNEX - CONSENT FORMS . . . . . . . . . . . . - ANNEX I FORM FOFI CERTIFICATION OF ENTITIESW ANNEX - FQFI MONITORING RADIO OF SUSPECTED INTERNATIONAL NAHCOTICS TRAFFICKERSW [Issued separater lo seiected tacipients(311 JII Ul?nT nr a nun: ?l ?n?l Il\1?l? f?l?l A hl in .1- .4 Dunn him" hlank. unuliy {cl tunli page In [his I. 4 .ula.nuld TI. at: I- .9). 'l-t .tlu cl nu .- 4.. 1196 27 July 1993 USSID 13 LEGAL AND MINIMIZATION PROCEDURES (U) SECTION 1 1.1 . The Feurth Amendment to the United States Constitution protects ail (1.3. persons any? here in the wand and ail persons within the United States from unreasonable searches and seizures by any person or agency acting on behall oi the U.S. Government. The Supreme Coon has ruled that the interception oi electronic communications is a search and seizure within the meaning of the Fourth Amendment. It is thereiore rna'indaton,r that signals intelligence (SIGINT) operations be conducted pursuant to procedures which meet the reasonabtenese requirements of the Fourth Amendment. 1.2. (U) in determining whether United States System operations are "reasonehte." it is necessary to balance the U.S. Government?s need for foreign intelligence information and the private? interests of persons protected by the Fourth Amendment. Striking that balance has consumed much time and short by all branches 01 line United States Government. The resuits oi that eiibr?l are re?ected in the relerences listed in Section 2 below. Together. these references require the minimization oi US. person information collected. processed. retained or disseminated by the The purpose ot this document is to impiernent these minimization requirements. 1.3. (U) Several themes ton throughout this USSID. The most important is that ;ntel|igence operations and the protection of constitutional rights are not incompatibte. it is not necessary to denyI legitimate foreign coiiection or suppress legitimate foreign intelligence information to protect the Founli rights of US. persons. L4. (U) Finally. these minimization procedures implement the constitutional principle of "reasonableness" by giving diners-ht categories oi individuals and entities ditierent levels of protection. These levels range irorn the stringent protection accorded U.S. citizens and permanent resident aiiens in the United States to provisions relating to iorelgn diplomats in 11$ US. These differences retiect yet another main theme of these procedures. that is. that the focus oi ail ioreign intelligence operations is on foreign entities and persons. SECTION 2 REFERENCES 2.1. (U1 References .3. 50 U.S.C. 1801. et seq" Foreign intelligence Surveillance Act oi iEii'B. Public Law N3. b. Executive Order 12333. "United States intelligenee Activities." dated or December l931. 1197 ossm 13 1993 c- Oct) Directive 5240.t. "Activities 0! Intelligence Components that littlest U.S. Persons." dated 25 April 1988. d. Directive No. 10?30. "Procedures Governing Activities of that Affect LLS. Persons." dated 20 September 1990. SECTION 3 POLICY 3.1. (U) The policy oi the U888 is to TARGET or COLLECT only FOREIGN The U333 will not intentionally COLLECT communications to. from or about US. PERSONS or persons or entities in the US. except as set forth in this USSID. ii the Inadvertentty COLLECTS such communications. it will process. retain and disseminate them only in accordance with this USSID. SECTION 4 COLLECTION are known to be to. tram or about a LLB. will not be Intentionally intercepted, or selected through the use 'Oi'a' TERM. except in the Iona-ting instances: a. With the approval cl the United States Foxeign Intelligence Surveillance Cottrt tinder the outlined in Annex A oi this USSID. b. With the approval at the Attorney General at the United States. if: The COLLECTION is directed against the following: Communications to or from LLS. PERSONS outside the UNITED STATES. or Into national communications to. from.? or Communications which are not to or from but merely about US. PERSONS [wherever located]. The person is an AGENT OFA FOREIGN POWER. and [31 The oumose oi the COLLECTION is to acquire signi?cant FOREIGN INTELLIGENCE information. C. With the approval at the Director. National Security Central Security Sew-Ice so long as the COLLECTION need not be approved by the Foreign lntetligence Suweil?ance Court or the Attorney General. and The person has CONSENTED lo the COLLECTION by executing one of the CON-SENT terms contained in Annex H. or USSID 18 37 July 1993 Capitalized words in Sections 3 through 9 are de?ned terms in Section 9. (2) The plateau is reasonany batietred to be held captive by a FOREIGN POWER or group engaged in INTERNATIONAL TERRORISM. or and the has sport-wed the COLLECTION in accordance with Annex l.or (4) The COLLECTION is directed against betWeen a US. PERSON in the UNITED STATES and a toreign entity outside the UNITED STATES. the TARGET is the toreign entity. and the has approved the COLLECTION In accordance with Anna): it. or (5) Technical devices (9.9. are employed to limit acquisition by the to communications to or from the TARGET or to speci?c forms of communications used by the TARGET .. I and the COLLECTION is directed against voice and facsimile communications with one COMMUNICANT in the UNITED STATESfahdih'e TARGET o! the COLLECTION I la] A non-US. PERSON located outside the UNITED it Copies oi approvals granted by the DIRNSNOHCSS under these provisions will be reta net! in the Oltice at General Counsel for review by the Attorney General. d- Emergence; Situations. in emergency situations. may authorize the COLLECTION oi information to, from, or about a US. PERSON who is Outside the UNITED STATES when securing the prior approval at the Attorney General is not practicat because: The time required to obtain such approval would result in the loss of signi?cant FOREIGN INTELLIGENCE and would cause substantial harm to the national security. (is) A person's tile or physical safety ls reasonabty believed to be in immediate dangen The physical security at a defense inatailation or gotrernment property is reasonably hciieved to be in immediate dancer. (2) In those cases where the authorizes emergencyr COLLECTION. except tor actions taken under paragraph dit above. shall iind that there is probable cause that the TARGET meets one of the toilet-ring criteria: A person who. to: or on behaii of a FOREIGN POWER, is engaged in clandestine intelligence activities (including correct activities Intended to affect the political or governmental process). ?iiQ 200i USSID IS 27 July 1993 or INTERNATIONAL TERRORIST activities. or activities in preparation for INTERNATIONAL ERRORIST activities; or who conspires with, or knowingly aids and abate a person engaging tr. such activities. A person who is an of?cer or employee of a FOREIGN POWER. to) A person unlawfully acting for, or pursuant to the direction ol. .3 FOREIGN POWER. The mere tact that a person's activities may bene?t or further the aims of .3 FOR EIGN POW ER is not enough to bring that person Under this subsection, absent evidence that the person is taking direction trom. or acting in knowing concert with. the FOREIGN POWER. A CORPORATION or other entity that is owned or controlled directly or indirectly by a FOREIGN POWER. A sateen in contact With. or acting in collaboration with, an intelligence or so curity service at a torsion power for the purpose of providing access to information or material ctassitierr t: 'r the United States to which such person has access. (3) In all cases where emergency collection Is authorized. the intro-sing steps shall be taken: is} The General Counsel will be noti?ed immediately that the has started. (bi The General Counsel will initiate Immediate shorts to obtain Attorney General approval to co min-us the coilection li Attorney General approval is not obtained within seventy two hours, the COLLECTION will be terminated. It the Attorney General approves the COLLECTION. it may continr. a for the period speci?ed in the approval. a. Annual reports to the Attorney General are required for COLLECTION conducted under paragraphs 4.t.c.t3) and Responsible analytic of?ces will provide such reports thrOUQh the Daputy Oireczor tor Operations and the General Counsel to the for transmittal to the Attorney General by 31 January of each year. w. (an. 4.2. 4.3. (U) incidental Acquisition of US. PERSON tntormation. lntormation to. item or about LLS. PERSONS acquired lncidentatly as a reset of COLLECTION directed against appropriate FOREGN TARGETS may be retained and processed in accordance with Section 5 and Section 3 of this [15311) 13 27 July 1993 4.4. +9669)- Nonresident Atten TARGETS Entering the UNITED STATES. a. It the communications of a nonresident atien located abroad are being TARGETED and the learns that the individuat has entered the UNITED STATES. CO may continue for a period of 72 hours prodded that the is advised immediately and: (1) Immediate efforts are initiated to obtain Attorney General approval, or (2) A determination is made within the 72 hour period that th- e. If Attomey General approval is obtained. the COLLECTION mar,r continue tor the length of time speci?ed in the approval. a. ueraser-rede?coeecmwmarmnunue at the discretion oi the operational eiement. rt. It or it Attorne General a rose! is not obtained within 72 hours, COLLECTION must be terminated Attorney General approval is obtained. or the individual leaves the UNITED STATES. 4.5. 16-989; U.S. PERSON TARGETS Entering the UNITED STATES. a. It communications to. from Or about a US. PERSON located outside the UNITED STATES are being COLLECTED under Attorney General approval described in Section 4.t.l:i. shove. the COLLECTION must stop when the teams that the individual has entered the UNITED STATES. h. While the individual is in the UNITED STATES. COLLECTION may he resumed onigr warn the approvei of the United States Foreign inteliigence Survei-ilance Good as descrmed in Annex A. 4.6. GET U.S. PERSONS. All ro oasis for COLLECTION PERSONS. . must be submitted through the DOD and the General Counsel to the tor revue-2r. 4.7. 13-666)- Direction Finding. Use of direction ?nding soter to determine the. iocation ot a transmitter located outside at the STATES does not constitute ELECTRONIC SU or COL even it directed at transmitters battered to he used by LLS. PERSONS. Unless oi the communications is otherwise authorized under these procedures. the contents of communications to which a US. PERSON is a party monitored in the course of direction linding may onty be used to identify the transmitter. 4.8. Distress Signals. Distress signals may be intentionally collected, processed. retained. and disseminated without regard to the restrictions contained in this USSID. 4.9. (U) COMSEC Monitoring and Testing of Automated Information Systems. Monitoring for communications scourity purposes roost he conducted with the consent of the person being monitored and in accordance with the procedures established in National Telecommunications and information Systems Security Directive 600, Communications Security Monitoring. dated to April 1990. Monitoring tor 202 USED 13 27 July 1993 communications security purposes is not governed by this USSID. Intrusive security testing to assess security in automated information systems likewise is not governed by this SECTION 5 - PROCESSING 5.1. 15-666?- Use at Selection Terms During Processing. When a SELECTION TERM is Intended to INTERCEPT a communication on the basis of the content of the communication or because a communication is ecciphered. rather than on the basis oi the Identity of the or the fact that the communication mentions a particular individbsi, the following rules apply: a. No SELECTION TERM that is reasonabty likel to resul in the i {wherever located) may be used unless there is reason to believe that FOREIGN INTELLIGENCE will be obtained by use of such SELECTION b. No SELECTION that has resulted in the of a signi?cant number or communications to or lrom such persons or entities may be used unless there is reason to believe: that FOREIGN INTELLIGENCE will be obtained. c. SELECTION TERMS that have resulted or are reasonably likeiy to result in the of communications to or Irom such persons or entities snail be designed to defeat. to the greatESt extent practicable under the Giraurnstances. the INTERCEPTION 01 those communications which do notcontaln FOREEGN 5.2. 4-8?9693 Annual ReviEw by DUO. 52. Ali SELECTION TERMS that are reasonably likeiy to resuit In the INTERCEPTICN of communications to or from a US. or terms that have resulted in the INTERCEPTION of a significant number oi such communications shall be reviewed annually by the 000 or a designee. b. The purpose at the review shall be to deiermlne whether there is reason to bell-eye that FOREIGN INTELLIGENCE will be obtained. orwitl continue to be obtained. by the use of thesis SELECTION TERMS c. A copy of the results of the re?ex will be provided to the Inspector General and the General Counsel. 5.3. ?ts-?66) Forwarding oi Inter-copied Material. FOREIGN collected by the maybe Ion-rarderi as intercepted to NBA. intermediate processing lacilities, and collaborating centers. 5.4. 15-666} Noniorelgn Communications. a. Communications between persons in the UNITED STATES. Private radio communical one solely oen-reen persons in the UNITED STATES inadvertently intercepted during the COLLECTION oi FOREIGN wilt be destroyed unless the Attorney General determines that the contents indicate a threat ol death or serious bodiiy harm to any person. users 13 27 July 1993 b. Communications between us. PERSONS. Communications solety between US. PERSONS will be treated as Iotlows: (it Communications soler between us. PERSONS inadvertently intercepted during the COLLECTION oi FOREIGN COMMUNIOATIONS will be destroved upon recognition. ii technicallyf possible. except as provided In paragraph 5.4.d. below. Notwithstanding the preceding prodsion, data signal and encipherment information) and technical communications data (52.9., circuit usage) may be extracted and retained from those communications it necessary to: Establish or maintain intercept, or to) Minimize unwanted intercept. or to} Support operations related to FOREIGN COMMUNICATIONS. c. Communications involving an Of?cer or Employee of the us- Government. Communications to or Item any oliicer or employee of the U.S. Government. or any state or local government, will not he intentionally intercepted. Inadvertent INTERC EPTIONS of such communications (includ-?ng those between toreign and U5. officials) will be treated as Indicated in paragraphs 5.4a. and above. d. Exceptions: Notwithstanding the provisions oi paragraphs 5.4.b. and c.r the may waive the destruction requirement tor intemational communications containing, inter alter. the Iottowing types oi lniormation: (1) Signi?cant FOREIGN INTELLIGENCE. or (2) Evidence of a crime or threat at death or serious bodily harm to any person. or Anomalies that reveal a potentiat vulnerability to U.S. communications secudtv. Communications for which the Attorney General or DIRNSNOHOSS's waiver is sought should be forwarded to Attn: P02. .5. 48-9-99; Radio Communications with a Terminal In the UNITED STATES. (It a. At radio communications that pass over channels with a terminai in the UNITED STATES must be processed through a corrputer scan dictionary 0r simitar device Unless those communications occur over channels used exclusiver by a FOREIGN POWER. b. Intern - i tpass over channels with a terminal in the UNITED STATES communications. may be processed without the use oi a camp-titer scan dictionary or srmiter devlce it necessary to determine whether a channel contains communications of INTELLIGENCE interest which NSA may wish to collect. Such processing may not exceed two hours without the speci?c prior written approval of the DOD and. in any event. shall be limited to the minimum amount of time necessary to determine the nature at communications on the channel and the amount of such communications that include FOREIGN Once it is determined that the channel contains sutiicient communications oi INTELLIGENCE Interest to 202 ussm is 27 July 1995 warrant COLLECTION and Exploitation to produce FOREIGN INTELLIGENCE. a computer scan dictionary or similar device must be used for additional processing. c. Copies of all [300 written approvals made pursuant to 5.5.b. must be provided to the General Counsel and the Inspector General. SECTION 6 RETENTION 6.1. 1-3-6693 Retention oi Communications to, from or About us. PERSONS. a. Except as otherwise provided in Annex A. Appendix 1 Section 4. communications to. from or about US. PERSONS that are intercepted by the USES rnet',t be retained in their original or transcribed form only as it} Uncnciphereo? communications not tholught to Contain secret meaning may be reta'ned for I ive years unless the DOD determines in writing that retention for a longer period is rectuired to respond to authorized FOREIGN requirements. (2) Com municetions neceSSary to maintain technical data bases for Ctypianaiy?c- or traf?c analytic purposes may be retained ior a period suf?cient to allow a thorough exploitation and to permit access to data that are. or are reasonably believed til-rely to become, relevant to a current or Ioture INTELLIGENCE requirement. Suf?cient duration may vary with the nature of the exploitation and ms}.r consist of any period of time during which the technical data base is subject toU.S. PERSONS identity Is not necessary to me?ntainang technical data bases. it should be deleted or replaced by a generic term when practicable. b. Communications which could be disseminated under Section 7, below without elimination oi references to U.S. may be retained In their originator transcribed iorrn. 63.2. ?ees-es Access. Access to raw traf?c storage systems which contain Identities of U5. PEP. sores must be limited to SIGINT production personnel. SECTION 7' DISSEMINATION 7.1. -re=eeoi Focus oi SIGINT Fiepons. All reports will be written so as to focus solely on the activities at foreign entities and persons and their agents. Except as provided in Section 12.. FOREEGN INTELLIGENCE intermaiion concerning us. PERSONS must be disseminated in a manner which does not identify the us. PERSON. Generic or general terms or phrases must be substituted for the identity firm" for the specific name of a U.S. CORPORATION or (Or the speci?c name of a US. PERSON). Files containing the identities oi U3- persons deleted from SIGINT reports will be maintained for a maximum period oi one year and any requests from SIGINT customers for such identities sh0uld be referred to P02. 7.2- +9663)- Dlssaminatton oi LLS. PERSON Identities. SIGINT reports may include the identification of a U-S. PERSON only it one oi the following conditions is met and a determination is made 2 I9 USSID IS 27 July 1993 by the appropriate approval authority that therecipient has a need for the identity for the performance othis official duties: 8. The U.S. PERSON has CONSENT EU to the dissemination of Communications of. or about. him or her and has executed the CONSENT form found in Annex or this USSID, or b. The information is PUBLICLY AVAILABLE the information is derived from unclaSSified Information available to the general public}. or c. The identity of the U5. PERSON is necessary to understand the FOREIGN INTELLIGENCE information or assess its importance. The following nonexclusive list contains examples of the type ct intermation that meet this standard: FOREIGN POWER OF AGENT OF A FOREIGN POWER. The information indicates that the U.S. PERSON is a FOREIGN POWER or an AGENTQF A FOREIGN POWER. (2) Unauthorized Discfosme oi Classi?ed Information. The information indicates that the U.S. PERSON may be engaged in the unauthorized disclosure of classified information. international Narcotics Activity. The information Indicates that the individual may he engaged in international narcotics trailicking antivities. [See Annex 4 of this tor forth-3r information concerning individuals invotved in lntemational narcotics traf?cking). Criminal Activity. The information is evidence that the individual may be involved in a crime that has been. is being. or is about to be committed. provided that the dissemination is for raw enforcement purposes. tntetlagence TARGET. The information indicates that the U.S. PERSON may be the of hostile intelligence activities of a FOREIGN POW ER. Threat to Safety. The information indicates that the identity of the US. PERSON is pertinent to a possible threat to the safety or any person or organization, including those who are victims or hostages oi TERRORFST organizations. Reporting units shall identity to P02 any report containing the identity.l of a US. PERSON reported under this subsection Field reporting to P02 should be in the term of a message and include the report date-?rhe-group pmducl serial number and the reason ior inclusion of the US. identity. Senior Executive Branch Of?cials. The identity is that of a senior oi the Executive Branch of the U.S. Government. in this case oniv the ctiiciat's title will be disseminated. Domestic politics; or personal intomation on such individuals will be neither disseminated not retained. 13. 13-63%- Approval Authorities. Approvai authorities for the release of identities of persons under Section 7? are as follows: a. must approve dissemination of: The identi?es oi any senator, congressman. of?cer. or employee of the Legislative Branch of the US. Government. 2.05 USSID 13. July 1993 The identity of any percon for law enforcement potposes. b. Field Units and NBA Headquarters Elements. All production organizations are authorized to disseminate the identities of us. PERSONS when: The identity is pertinent to the selety of any person or organization. (2) The identity is that of a senior official at the Exectnive Branch. (3) The U.S. PERSON has CONSENTED under paragraph 7.2.3. above. C. DOD and Designees. it) In att other cases. US. FERSON identities may be released only with the prior approval of the Deputy Director for Operations. the Assistant Deputy Director for Operations, the Chief, P02. the Deputy Chief. P02. or. in their absence. the Senior Operations Oiticer oi the National Operat one center. The DEC) or ADDO shall review all US. Identities released by these designeos as soon as practio able alter the release is made. [it For law enforcement purposes involving narcotics related information, has granted to the DDO authority to disseminate U.S. identities. This authority may not he further delegated. 7.4. (U) Privileged Communications and Criminal Activity. All proposed disseminations oi iniorrnation constituting U.S. PERSON privileged communications (5.9.. docton'patient) and all minrmation concerning criminal activities 0! criminal or judicial proceedings in the STATES must be reviewed by the Office oi General Counsel prior to dissemination. 15. improper Dissemination. it the name at a U.S. PERSON is improperly disseminated. tne incident should he reported to P02 i.vithin 2:1 hours at dFsCOVery oi the error. 3 -- 8.1. Inspector General. The ins ector General shall: a. Conduct regular inspections and perform general oversight of activities to ensure compliance with this 1). Establish procedures tor reporting by Key Component and Field Chiefs of their activities and practices for oversight purposes. 3. Report to the annually by 3t October. concerning compiiance with this USSID. o. Report quarterly with the and General Coonsel to the President's intelligence Oversight Board through the Assistant to the Secretary of Detense {intelligence Oversight}. 2G6 APPROVED FOR PUBLIC RELEASE 18 27 Juli.t 5993 5.2. (U) Genera! Coonsel. The General Counsel shall: a. Provide legal advice and assistance to all elements of the regarding activities. Requests iorlegal advice on an},t aspect cl th shou Sent by to DDI Xot. or by secure telephone 963-3121. or b. Prepare and process all applications for Foreign intelligence Surveillance Colin orders and requests iorhttorney General approvals required by these procedures. a. Advise the inspector General in inspections and oversight of U533 activities. ct. Review and assess for legal implications as reqdesied by the Deputy Direction inspector General or Kay Components Chief. all new major requirements and. internally generated activities. 3. Advice personnel of new legislation and case law that may alfect U538 missions, functions. operations. activities. or practices. l. Report as required to the Attorney General and the President's Oversight Board and provide copies at such reports to the and affected agency eiarnents. 9. Process requests from anyI intelligence component for authority to use signals as described in Procedure 5. Part 5, at Don 5240.144. for periods in excess oi Bil days in the development. test. or calibration oi ELECTRONIC SURVEILLANCE equipment and other equipment that can intercept communications. 33. (U) Deputy Director for Operations (DUO). The BBQ shall: 3. Ensure that all SIGINT production personnel understand and maintain a high degree of awareness and sensitivity to the requirements of this USSID. 1). Apply the provisions of this to all SIGINT production activities. Tne 080 alert focal point {or USSID to matters is P02 (use cnmcomu DDI c. Conduct necessary reviews of SIGINT production activities and practices to ensure consistency with. this USSID- c. Ensure that all new main: requirements levied on the or interment-r generated activities are considered For review by the General Counsel. All activities that raise questions ct raw or the proper interpretation of this USSID must be reviewed by the General Counsel prior to acceptance or execution. 8.4. (U) All Elements of the U335. All elemems oi the shall: a. implement this directive upon receipt. Prepare new procedures or amend or soppiernent existing procedures as required to ensure adherence to this A copy of such procedures shall be forwarded to Attn: F02- APPROVED FOR PUBLIC RELEASE USSID 18 27 July 1993 0. Immediately intorrn the DOC) of any tasking or instructions that appear to require actt'c he at variance with this USSID. d. Promotty report to the NSA inapector General and consult with the NSA General Games! on all activities that may raise a question of compliance with this USSID. SECTION 9 DEFINITIONS 9.t. +5669} AGENT OF A FOREIGN POWER means: a. Any person. other than a US. PERSON. who: Acts in the UNITED STATES as an of?cer or employee of a FOREIGN POWER. Or as a member cl 3 group engaged in INTERNATIONAL TERRORISM or activities in preparation therefor; or I2) Acts lor. or on behalf of. a FOREIGN POWER that engages in clandestine intellig ence activities in the UNITED contrary to the interests of the UNITED STATES. when the circumsia was Dr Parson's presence in the UNITED STATES indicate that Such person may engage in such activities in the UNITED STATES. or when person knowingly aids or abets any person in the conduct oi such activities or knowineg oonsgires with any person to engage In such activities; or b. Any person. including a U-S. PERSON. who: (Ii Knm'ringly engages in clandestine intelligence gathering activities tor, or on behett of. a FOREIGN POWER, which activities tortoise. or may involve. a violation oi the Criminal statutes 0' the UNITED STATES: or (2) Pursuant to the direction oi an intelligence sen-ice or network of a FOREIGN knott-ingly engages in any other clandestine inteltigence activities for. or on behall oi, such FORESGN POWER. which acmities involve or are about to involve. a violation oi the criminal statutes of the STATES: Or Knowingly engages in sabotage or INTERNATIONAL TERRORISM, or anti-ri?es that are in preparatson therefor, for or on behali of a FOREIGN POWER: or (4) Knowingly aids or share any person in the conduct of activities described in paragraphs 9.1.12.0] through (3) or knowingly conspires any person to engage in those activities. c. For alt purposes other than the conduct of ELECTRONIC SURVEILLANCE as de?ned by the Foreign Intelligence Sunreilience Act (see annex the phrase ENT OF A FOREIGN also means any person, Including 11-3- PERSONS outside the UNITED STATES. who are or employ ass of a FOREIGN POWER. or who not unlawiully for or pursuant to the direction of a FOREIGN POWEF. (Jr who are in contact with or acting in cotton-oration with an intertigencs or security service oi a FORE (3N POWER for the purpose at providing access to intorntation or material classi?ed by the UNITED STATES Government and to which the person has or has had access. The more tact that a person?s activities may bene?t or further the aims of a FOREIGN POWER is not enough to bring that person under this provls'on. APPROVED FOR PUBLIC RELEASE users 18 at July 1993 absent evidence that the person is taking direction trom or acting in knowing cancert with a FOREIGN POWER. 92. ?16} COLLECTION means Intentional tasking or SELECTION of identi?ed nonpublic communications for subseqUent aimed at reporting or retention as a tile record. 93. (U) COMMUNICANT means a sender or intended recipient of a communication. 9.4. (U) COMMUNICATIONS ABOUT A U.S. PERSON are these in which the US. PERSON is identified in the communication. A US. PERSON is identified when the parson's name. onions title. address. or other personal identi?er Is revealed in the communication in the Context of activities conducted. by that person or activities conducted by others and related to that person. A mere reference to a product by brand name or manufacturer's name. "Boeing is not an identification of a U5. person. 9.5- (U) CONSENT. {or purposes. means an agreement by a person or organization to permit the to take particutar actions that sheet the person or organization. An agreement by an organization with the National Security Agency to permit COLLECTION of information shall be deemed valid CONSENT it given on behalf of such organization by an of?cial or governing bodyr determined by the General Counsel, National Sectm'ty Agency, to have actual or apparent authority to make such an agreement. 9.6. (U) CORPORATIONS. for purposes at this are entitles legally recognized as separate from the persons who termed. own. or run them. CORPORATIONS have the nationality of the nation state under whose laws they were formed. Thus. CORPORATIONS incorporated under UNITED STATES federal or state law are US. PERSONS. 9.7. (U) ELECTRONIC means: a. In- the case of an electronic communication. the acquisition of a nonpublic communication by eiectronic means without the CONSENT ol 3 person who is a party to the communication. b. In the case at a nonelectronlc communication. the acquisition of a nonpublic communication by eieotronic means without the CONSENT of a person who is vis:bly present at the place at communication. 0. The term ELECTRONIC SURVEILLANCE does not include the use of radio direction ?nding Equipment solely to determine the location at a transmitter. 9.8. FOREIGN means a communication that has at least one outside of the UNITED STATES. or that is entireiv among FOREIGN POWERS or between a FOREIGN POWER and of?cials of a FOREIGN POWER, but does not include communications intercepted by ELECTRONIC SURVEILLANCE directed at premises in the UNITED STATES used predominantiy for residential purposes. 9.9. (U) FOREIGN INTELLIGENCE maensintormation relating to the capabilities, intentions. and activities of FOREIGN POWERS. organizations. or persons. and for purposes of this USSID inotodas ooih positive FOREIGN INTELLIGENCE and counterintelligence. 9.10. FOREIGN POWER means: on: APPROVED FOR PUBLIC RELEASE USSED 18 27 July 1993 a. A foreign govemment or any component thareoi. whether or not recognized by the UNITED STATES. b. it traction of a foreign nation or nations. not substantially composed of UNITED PERSONS, c. An entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such lareign government or governments, d. A group engaged In INTERNATIONAL TERRORISM or activities in preparation thereinr. e. A foreign-based political organization. not substantially composed ct UNITED STATES PERSONS. or i. An entityr that is directed and controited by a inreign government or governments. 9.11. (U) means the acquisition by the through electronic means at a nonpublic communication to which it is not an Intended party. and the processing of the contents at that communicall?? MD an intelligible form. but does not include the display oi signals on visual displz-ttr devices intended to permit the examination of the technical characteristics oi the signals without reference to the information content carried by the signal- 9.12. (U) INTERNATIONAL TERRORISM means activities that: a. involve violent acts or acts dangerous to human lite that are a violation oi the criminal laws of rac- UillTEt} STATES or of any State. or that woufd be a Criminal violation it committed within the iun'sdic tion or the UNITED STATES or any State. and b. Appear to be Intended: (it to intimidate or coerce a civilian population. (2) to in?uence the policy oi a government by intimidation er coercion. or to attest the conduct at a government or assassination or kidnapping. and c. Occur totally outside the UNITED STATES. or transcend national boundaries in terms at the means by which they are acoomoiished. the persons they appear intended to coerce or intimidate. or the locate in which their perpetrators operate or seek asylum. 9.13. (U) PUBLICLY AVAILABLE INFORMATION means information that has been publishec or broadcast ior general public consumption. is available on request to a member of the general public, has in sen seen or heard by a casual observer. or is made available at a meeting open to the general public. otivities. means the telegitone number. a computer scan die tonal? or manuai scan guide for the porpose of fdentii} ing messages at interest and isolating them for iurther processing. 9-14. intentional insertion oi 210 APPROVED FOR PUBLIC RELEASE USSID 13 2.7 July [993 9.15. 46l- SELECTION TERM means the composite of individual terms used to etiect or defeat SELECTION of particular communications for the pUrpose of INTERCEPTION. It comprises the entire term or series of terms so used. but not any segregeble term contained therein. it applies to both electronic and manual processing. 9.16. TARGET. OR TARGETING: See COLLECTION. 9.17. (U) STATES, when used geographically, inciudes the 50 states and the District at Columbia. Puerto Rico. Guam. American Samoa. the US. Virgin Islands. the Northern Mariana Islands, and en}.t other territory or possession over which the UNITED STATES exercises sovereignty. 5.18. STATES PERSON: e. A citizen oi the UNITED STATES. b. An alien lawfully admitted for permanent residence in the UNITED STATES, c. Uninmrporated groups and associations or substantial number of the members of which e. or b. above. or d. CORPORATIONS incorporated in the UNITED STATES, including US. Itatg nongovernmental aircratt or vessels. but not including those entities which are openly acknowledged by a foreign government or governments to be directed and controlled by them. e. The following guidelines apply in determining whethera person is a US. PERSON: (It A person known to he in the United States will be treated as a PERSON unless that person is reesone'oiy identi?ed as an alien who has not been admitted for permanent residence or it the nature of the person's communications or other lndicia in the contents or circumstances oi such communications gore rise to a reasonable beiiet that such person is not a U5. PERSON. It persort known to be currently outside the UNITED STATES. or whose I ocation is not known, will not he treated as a U5. PERSON unless such person is reasonably identi?ed as such or the nature ot the person?s communications or other lndicta in the contents or circumstances of such communications give rise to a reasonable beliet that such person is a U3. PERSON. A person known to be an e?ten admitted for permanent residence may be assumed to have lost status as a U3. PERSON it the perSon leaves the UNITED STATES and it is known that the person is not in compliance with the administrative IcfmalilIBS provided by law (8 U.S-C. Section 1203} that enable such ersons to reenter the UNITED STATES without regard to the provisions at law that would otherwise restrict an alien's entry into the UNITED STATES- The traitors to follow the statutory procedures provides a reason-able ?oasis to oonotude tool such also has abandoned any intention oi maintaining status as a permanent resident eiien. An unincorporated association whose headquarters are located outside the UNITED sures may be presumed not to be 3 LLB. PERSON unless the has information indicating that a sobstantiet number of members are citizens ot the UNITED STATES or aliens lawfully admitted for permanent residence. 212 USSID 13 2.7 July 1993 (5) have the nationaiity of the. nation-state in which they are lncorpcrated. CORPORATIONS formed under US. federal or state law are thus U.S. persons. men It the corporate stock istoreign?owned. The only exception set forth abgve is CORPORATIONS which are Openly acknowledged to be directed and controlled by foreign governments. Convetsery. CORPORATIONS incorporated tn tOreign countries are not US. PERSONS even if that COHPOFIATTON Is a subsidiary ofa U5. CORPORATION. {6t Nongovernrnental shine and aircraft are regal entities and have the nationality of ma country in which they are registered. Ships and aircraft ?y the ?ag and are Subj'ect to the law of their piece of ragistretlon. APPROVED FOR PUBLIC RELEASE No. OP 2008-0009 OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE OFFICE OF THE INSPECTOR GENERAL k-b .. I lite? a WREVIEW OF THE PARTICIPATION OF THE OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE IN THE SURVEILLANCE PROGRAM July 2, 2009 ROSLYN A. MAZER INSPECTOR GENERAL Copy No. BY: 2385885 61'. APPROVED FOR PUBLIC RELEASE This page intentionally left blank. 214- II. IV. VI. APPROVED FOR PUBLIC RELEASE (U) TABLE OF CONTENTS (U) EXECUTIVE SUMMARY (U) INTRODUCTION (U) SCOPE AND METHODOLOGY (U) DISCUSSION OF FINDINGS A. (U) Initial Response by the President and Congress to the Terrorist Attacks of September 11, 2001 (U) B. W) ODNI Role in Preparing Threat Assessments in Support of the Program C. NCTC Use of the Program to Support Counterterrorism Analysis E. NCTC Role in Identifying Program Targets or Tasking Collection F. 'foN-Fa? ODNI Oversight of the Program (U) CONCLUSION (U) APPENDIX STRUCTURE OF THE ODNI 2005 PAGE 10 12 13 13 16 17 This page intentionally left blank. 216 APPROVED FOR PUBLIC RELEASE REVIEW OF THE PARTICIPATION OF THE OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE IN THE SURVEILLANCE PROGRAM I. (U) EXECUTIVE SUMMARY The Of?ce of Inspector General (OIG), Of?ce of the Director of National Intelligence (ODNI), was one of ?ve Intelligence Community InSpectors General that conducted a review of their agency?s participation in the President?s Surveillance Program (hereafter ?the Program?), a top secret National Security Agency (N SA) electronic surveillance activity undertaken at the direction of the President. The Program became operational on October 4, 2001, three weeks after the deadly terrorist attacks of September 11, 2001. The review examined the involvement in the Program from the period beginning with the stand-up of the ODNI in April 2005 through the termination of the Program in January 2007. The primary role in the Program was the preparation of the threat assessments that summarized the al Qaeda terrorist threat to the United States and were used to support the periodic reauthorization of the Program. That role began in April 2005, shortly after the ODNI stand-up and contemporaneous with the arrival of General Michael Hayden as the ?rst Principal Deputy Director of National Intelligence (PDDNI). Prior to his ODNI appointment, Hayden was Director of NSA. In April 2005, ODNI personnel in the National Counterterrorism Center (NCTC) began to prepare the ?rst of 12 Program threat assessments. In coordination with the Department of Justice (DOJ), then Director of National Intelligence (DNI) John Negroponte or PDDNI Hayden approved 12 ODNI-prepared threat assessments over an 18-month period. Once approved by the DN1 or PDDNI, the Program threat assessments were reviewed and approved by the Secretary of Defense, and were subsequently used by DOJ, NSA, and White House personnel in support of the Program reauthorization. In addition to the preparation of the threat assessments, we found that NCTC used Program information in producing analytical roduets that were distributed to senior IC During the review, we made several related ?ndings and observations. We Ieamed that the ODNT usage of Program-derived information in ODNI intelligence products was consistent with the standard rules and procedures for handling NSA intelligence. We learned that ODNI personnel were not involved in nominating speci?c targets for 111. While personnel were identified as having contacWregarding the Program, we found that those communications were limited in ?'equency and scope. We also found that the ODNI intelligence oversight components the Civil Liberties Protection Of?cer (CLPO), Of?ce of General Counsel (OGC), and the OIG -- had little involvement in oversight of the Program and had limited opportunity to participate in Program oversight due to delays in ODNI oversight personnel being granted access to the 218 APPROVED FOR PUBLIC RELEASE ?rain straw-rats)? Program and temporary resource limitations attendant to the stand-up of the ODNI. Finally, we found that the 2008 amendments to Executive Order 12333 and the current ODNI staf?ng levels provide the ODNI oversight components with suf?cient resources and authority to ?JI?ll their current oversight responsibilities, assuming timely noti?cation. II. (U) INTRODUCTION The Foreign Intelligence Surveillance ActAmendments Act of 2008, Pub L. No. [10?261, 122 Stat. 2438 (hereafter Amendments Act?) required the [Gs of the DOJ, ODNI, NSA, Department of Defenses (DOD), and any other element of the intelligence community that participated in the President?s Surveillance Program to conduct a comprehensive review of the Program.? The FISA Amendments Act defined the ?President?s Surveillance Program" as the ?intelligence activity involving communications authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007, including the program referred to by the President in a radio address on December 17, 2005." In response to this tasking, the [Gs of the following ?ve agencies were identi?ed as having a role in Program review: ODNI, NSA, DOD, and the Central Intelligence Agency (CIA). The participating IGs organized the review in a manner where each OIG conducted a review of its own agency?s involvement in the Program. CIA IG John Helgerson was initially designated by the IGs to coordinate the review and oversee the preparation of an interim report due within 60 days after the enactment of the Act, and a later ?nal report due not later than 1 year after the enactment of the Act.2 Because of IG Helgerson?s recent retirement, DOJ IG Glenn Fine was selected to coordinate the preparation of the ?nal report. This report contains the results of the ODNI OIG review. (U) SCOPE AND METHODOLOGY We sought to identify the role of the ODNI in implementing the Program beginning with the stand-up of the ODNI in April 2005 through the Program?s termination in January 2007. This review examined the: A. Role of the ODNI and its component the National Counterterrorism Center in drafting and coordinating the threat assessments that supported the periodic reauthorization of the Program; Lfsn?tf??The Program is also known within the Intelligence Community by the cover term STELLARWIN D. The Program is a Top Secret/Sensitive Compartmented ?rfonnation (SCI) program. 2 (U) The participatingle submitted an interim report, dated September 10. 2008, to the Chairman and Ranking member of the Senate Select Cemmittee on Intelligence (SSCI) and a revised interim report, dated November 24, 2008, to the Chairman and Ranking member of the House of Representatives Permanent SelectCommittee on Intelligence (HPSCI). APPROVED FOR PUBLIC RELEASE B. use of Program information to support counterterrorisrn analysis; C. role in identifying Program targets and tasking Program collection; n?and F. Role of the ODNI in providing compliance oversight of the Program. During the review, we interviewed 23 current or former ODNI of?cials and employees involved in the Program. The ODNI personnel we interviewed were cooperative and helpful. Our interviews included the following ODNI senior of?cials: John Negroponte, former Director of National Intelligence Michael McConnell, former Director of National Intelligence Michael V. Hayden, former Principal Deputy Director of National Intelligence Ronald Burgess, former Acting Principal Deputy Director of National Intelligence David R. Shedd, Deputy Director of National Intelligence for Policy, Plans, and Requirements Alexander W. Ioel, Civil Liberties Protection Officer Edward Maguire, former Inspector General Benjamin Powell, former General Counsel Corin Stone, Deputy General Counsel and Acting General Counsel Joel Brenner, former National Counterintelligence Executive3 John Scott Redd, former NCTC Director Michael Leiter, NCTC Director In addition to the interviews noted above, we reviewed Pro gram?related documents made available by the NSA OIG, the OIG, and the ODNI OGC. IV. (U) DISCUSSION OF FINDINGS The following discussion contains our ?ndings regarding the topics identi?ed above. First, we brie?y describe the terrorist attacks of September 11, 2001, and the initial government response to the attacks, including the authorization of the President?s Surveillance Program. Next, we discuss the ODNI and NCT role in implementing the Program. Finally, we set forth our conclusions and observations. A. (U) Initial Response by the President and Congress to the Terrorist Attacks of September 11, 2001 (U) The devastating al Qaeda terrorist attacks against the United States quickly triggered an unprecedented military and intelligence community response to protect the (U) Brenner was the NSA Inspector General before joining the ODNI. Wu 4 all!? APPROVED FOR PUBLIC RELEASE country from additional attacks. The following quote describes the initial terrorist attacks and the intended al Qaeda goal to deliver a decapitating strike against our political institutions. (U) On September ll, 2001, the al Qaeda terrorist network launched a set of coordinated attacks along the East Coast of the United States. Four commercial airliners, each carefully selected to be fully loaded with jet fuel for a transcontinental ?ight, were hijacked by al Qaeda operatives. Two of the jetliners were targeted at the Nation?s ?nancial center in New York and were deliberately flown into the Twin Towers of the World Trade Center. The third was targeted at the headquarters of the Nation?s Armed Forces, the Pentagon. The fourth was apparently headed toward Washington, DC, when passengers struggled with the hijackers and the plane crashed in Shanksville, The intended target of this fourth jctliner was evidently the White House or the Capitol, strongly suggesting that its intended mission was to strike a decapitation blow on the Government of the United States - to kill the President, the Vice President, or Members of Congress. The attacks of September 1 l?h resulted in approximately 3,000 deaths the highest single-day death toll ?'orn hostile foreign attacks in the Nation?s history.? (U) On September 14, 2001, in response to the attacks, the President issued a Declaration of National Emergency by Reason of Certain Terrorist Attacks stating that national emergency exists by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and continuing immediate threat of further attacks on the United States.? (U) On September 18, 2001, by an overwhelming majority in both the Senate and House of Representatives, a joint resolution was passed that authorized the use of United States military force against those responsible for the terrorist attacks launched against the United States. The joint resolution, also known as the Authorization for Use of Military Force HUMP), is often cited by White House and of?cials as one of the principal?egal authorities upon which the Program is based. In relevant part, the AUMF provides: lN GENERAL That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organization or persons, in order to 4 (U) This summary of the events of September I II 2001, was prepared by DOJ personnel and is set forth in the unclassi?ed DOJ "White Paper" entitled Lego! Authorities Supporting the Activities oft/re National Seem-it): Agency Described by the President, dated January 19. 2006. 5 (U) Proclamation 7463. 66 Fed. Reg. No. 181, September 200] . 6 (U) A uthort'zatt'on for Use of Mlitoty Fame, Section Pub. L. No. [70-40, 1 15 Stat. 224, September 18, 2001. 220 APPROVED FOR PUBLIC RELEASE prevent any future acts of international terrorism against the United States by such nations, organizations or persons. On October 4, 2001, three days before the start of overt military action against the al Qaeda and Taliban terrorist camps, the President authorized the Secretary of Defense to implement the President?s Surveillance Program.7 The Program, a closely held top-secret NSA electronic surveillance project, authorized the Secretary of Defense to employ within the United States the capabilities of the DOD, including but not limited to the signals intelligence capabilities of the NSA, to collect international terrorism~related foreign intelligence information under certain specified circumstances. Each Program reauthorization was supported by a written threat assessment, approved by a senior Intelligence Community of?cial, that described the threat of a terrorist attack against the United States. (U) On October 7, 2001, in a national television broadcast, the President announced the start of military operations against al Qaeda and Taliban terrorist camps in Afghanistan.g On April 22, 2005, the ODNI began operations as the newest member of the Intelligence Co mmunity. The ODNI was created, in part, in response to the ?ndings of the Independent National Commission on Terrorist Attacks Upon the United States (hereafter 9/11 Commission) that recommended the creation of a national ?Director of National Intelligence? to oversee and coordinate the planning, policy, and budgets of the Intelligence Community.9 In late April 2005, ODNI personnel began to prepare the threat assessments used in the periodic reauthorization of the Program. In June 2005, ODNI of?cials began to approve the threat assessments. B. WSW ODNI Role in Preparing Threat Assessments in Support of the Program Reauthorizations Prior to the ODNI's involvement in the Program, the Program was periodically reauthorized approximately every 30 to 45 days pursuant to a reauthorization process overseen by NSA, and White House personnel. Each reauthorization relied, in part, on a written threat assessment approved by a senior Intelligence Community of?cial that described the current threat of a terrorist attack against the United States and contained the approving of?cial?s recommendation regarding the need to reauthorize the Program. Before the involvement in the The NBA materials we reviewed identi?ed October 4, 200 as the date of the ?rst Program authorization. 3 The CNN.com webpage article entitled President announcer opening of attack, dated, October 7. 2001, provides a summary of the President's announcement and describes the national television broadcast 9 (U) While the Intelligence Reform and Terrorism Prevention Act of 2004 that created the ODNI was signed by the President on December 17, 2004, the actual ODNI stand-up occurred months later. The of?cial ODNI history, A Brief History oft/re ODNI 's Founding. sets April 22, 2005, as the date when the ODNI commenced Operations. 222 Program, every threat assessment prepared by the Intelligence Community in support of the Program reauthorization identi?ed the threat of a terrorist attack against the United States and recommended that the Program be reauthorized. Accordingly, the Program was regularly reauthorized during the approximately 3-year period prior to the involvement of the ODNI. During that period, the Director of Central Intelligence or his designee approved 31 threat assessments in support of the reauthorization of the Program. WSW- In reviewing the circumstances that led to the decision to transfer responsibility for preparing the Program threat assessments to the ODNI, we found that the ODNI does not have identi?able records regarding that decision. Senior ODNI officials involved with the Program told us that after the merger of the Terrorist Threat Integration Center into the NCTC, and the later incorporation of NCTC into the ODNI, it made sense for the ODNI to take responsibility for preparing the Program threat assessments as both TTIC and NCTC previously handled that task. Former PDDNI Hayden told us that the primary reason that the ODNI become involved in the Program was the statutory creation of the new DNI position as the senior Intelligence Community advisor to the President. When Ambassador Negroponte was con?rmed as the ?rst DNI, Hayden and other senior intelligence of?cials believed that DNI Negropome, as the President?s new senior intelligence adviser, should make the Intelligence Community?s recommendation to the President regarding the need to renew the Program. Hayden commented that the new involvement in this important intelligence program enhanced the role as the leader of the Intelligence Community and gave immediate credibility to the ODNI as a new intelligence agency. Once the ODNI became involved in the Program, the preparation and approval of the threat assessments became the primary Program role-? Beginning in April 2005, and continuing at about 30 to 45 day intervals until the Program's termination in January 2007, ODNI personnel prepared and approved 12 written threat assessments in support of the periodic reauthorization of the Program. We found that the ODNI threat assessments were drafted by experienced NCTC personnel who prepared the documents following an established DOJ format used in earlier Program reauthorizations. NCTC prepared the threat assessments in a memorandum format, usually 12 to 14 pages in length. Senior ODNI and NCTC of?cials told us that each threat assessment was intended to set forth the view regarding the current threat of an al Qaeda attack against the United States and to provide the recommendation whether to continue the Program. NCTC personnel involved in preparing the threat assessments told us that the danger of a terrorist attack described in the threat assessments was sobering and ?scary,? resulting in the threat assessments becoming known by ODNI and Intelligence Community personnel involved in the Program as the ?scary memos." The joint interim report prepared by the participating IGs noti?ed congressional oversight committees that the review would examine the involvement in preparing ?threat assessments and legal certi?cations" submitted in support of the Program. Because we did not identify any ODNI of?cials executing a legal certi?cation, we treated our review of the legal certi?cations to be the same as the review of the threat assessments. The Attorney General made legal certi?cations in support of the Program that are addressed in the 016 report. APPROVED FOR PUBLIC RELEASE During interviews, ODNI personnel said they were aware that the threat assessments were relied upon by DOJ and the White House as the basis for continuing the Program and further understood that if a threat assessment identi?ed a threat against the United States, the Program was likely to be reauthorized. NCTC also said that on a less frequent basis they prepared a related document that set forth a list of al Qaeda-af?liated groups that they understood were targets of the Program. Both the threat assessments and the less frequent list of a1 Qaeda-af?liated groups underwent the same ODNI approval process. We examined the ODNI process for preparing the Program documents, particularly the threat assessments, and found that the documents were drafted by experienced NCTC under the supervision of the NCTC Director and his management staff, who were ultimately responsible for the accuracy of the information in the documents. We determined that the ODNI threat assessments were prepared using evaluated intelligence information chosen from a wide-variety of Intelligence Community sources. ODNI personnel told us that during the period when the ODNI prepared the threat assessments, the Intelligence Community had access to fully evaluated intelligence that readily supported the ODNI assessments that al Qaeda terrorists remained a signi?cant threat to the United States. Once the ODNI threat assessments were approved within NCTC and by the NCTC Director, the documents were forwarded through an established approval chain to senior ODNI personnel who independently satis?ed themselves that the documents were accurate, properly prepared, and in the appropriate format. Throughout the ODNI preparation and approval process, the threat assessments were also subject to varying degrees of review and comment by and OGC attorneys, including then General Counsel Benjamin Powell and Deputy General Counsel Corin Stone. Powell said his review of the threat assessments was not a legal review, but was focused on spotting issues that might merit ?uther review or analysis. Powell said he relied on to conduct the legal review. Once the draft threat assessments were subjected to this systematic and multi?layered management and legal review, the documents were provided to the DNI or PDDNI for consideration and, if appropriate, approval. Overall, we found the process used by the ODNI to prepare and obtain approval of the threat assessments was straightforward, reasonable, and consistent with the preparation of other documents requiring DNI or PDDNI approval. Negroponte told us that because of time-sensitive issues present in 2005 relating to the ongoing ODNI start-up as a new agency and other Intelligence Community matters requiring his attention, he tasked his deputy, then PDDNI Hayden, to oversee the ODNI approval of the threat assessments and related documents. Negroponte told us that when making this decision, he was aware of Hayden?s prior experience with the Program during Hayden?s earlier assignment as Director of NSA. In June 2005, shortly after his arrival at ODNI, Hayden received and approved the ?rst ODNI threat assessment. Hayden later approved the next six ODNI threat assessments. After Hayden left the ODNI in May 2006 to become Director of CIA, Negroponte approved the next ?ve ODNI threat assessments, including a December ares-W 224 2006 threat assessment used in the ?nal reauthorization of the Program. In total, Negroponte and Hayden approved 12 ODNI threat assessments prepared in support of the Program reauthorizations. In discussing the ODNI process used to prepare and approve the threat assessments, Negroponte told us he was ?extremely satisfied? with the quality and content of the threat assessments provided for his approval. He did not recall any inaccuracies or problems relating to preparation of the ODNI threat assessments. Negroponte said the al Qaeda threat information described in the Program threat assessments was consistent with the terrorism threat information found in The President?s Daily Briefing and other senior-level Intelligence Community products he had read. Hayden had a similar view. Negroponte and Hayden separately told us that when they approved the threat assessments, credible intelligence was readily available to the Intelligence Community that demonstrated the ongoing and dangerous al Qaeda terrorist threat to the United States. Similarly, Negroponte and Hayden each told us that the nature and scope of the al Qaeda terrorist threat to the United States was well documented and easily supported the ODNI threat assessments used in the Program reauthorizations. Because of questions raised in the media about the legal basis for the Program, we asked the ODNI personnel involved in the preparation or approval of the threat assessments about their concerns, if any, regarding the legal basis for the Program We found that ODNI personnel involved in the Program generally understood that the Program had been in Operation for several years and was approved by senior Intelligence Community and D01 of?cials. During our interviews, ODNI of?cials told us they were satis?ed with the legal basis for the Program, primarily because of their knowledge that the Attorney General and senior DOJ attorneys had personally approved the Program and remained directly involved in the Program reauthorization process. We did not identify any ODNI personnel who believed that the program was unlawful. Former ODNI General Counsel Powell told us that after his Program briefmgs in early 2006, he had questions regarding the DOJ description of the legal authority for the Program but lacked the time to conduct his own legal review of the issue given the many time-sensitive ODNI legal issues that required his attention- Powell said he understood the rationale of D01 ?5 legal opinion that the Program was [awful and described the DOJ opinion as a ?deeply complex issue? with ?legal scholarship on both sides.? Powell said he recognized that he was a latecomer to a complex legal issue that was previously and continuously approved by DOI, personally supported by the Attorney General, and was being transitioned to judicial oversight? an idea he strongly supported. Powell said he relied on the DOI legal opinion regarding the Program and directed his efforts to supporting the Program?s transition to judicial oversight under traditional FISA, the 2007 Protect America Act, and the subsequent PISA Amendments Act of 2008. The DNI and PDDNI together approved [2 of the 43 threat assessments used in support of the Program reauthorizations. IA officials approved the other 31 threat assessments. APPROVED FOR PUBLIC RELEASE Negroponte recalled having regular contact with senior NSA and 001 of?cials who raised no legal concerns to him about the Program. He said he remembered attending a Program-related meeting that included members of the FISA Court who did not raise any legal concerns to him about the authority for the Program and seemed generally supportive of the Program. Negroponte also recalled attending meetings in which the Program was briefed to congressional leadership who not did raise legal concerns to him. Overall, the direct involvement of and other senior Intelligence Community of?cials in the Program resulted in Negroponte and other ODNI personnel having few, if any, concerns about the legal basis for the Program. C. Use of Program Information to Support Counterterrorism Analysis The Program information was closely held within the ODNI and was made available to no more than 15 NCTC for review and, if appropriate, use in preparing NCTC analytical products.? Generally, the NCTC approved for access formation in the form of ?nished NSA Cit.? anal saidtne The NCTC told us they received training regarding proper handling of NSA intelligence. They said they handled the NSA intelligence, including Program information, consistent with the standard rules and procedures for handling NSA intelligence information, including the minimization of US. person identities. FEW Hayden told us that during his tenure as Director of NSA, he sought to disseminate as much Pro am information as ossible to the I udu unit During our review, NCTC told us they often did not know if the NSA intelli ence available to them was derived from the Program. 1W The number of NCT read into the Program ranged from 5 to l5 formme 10 On those occasions when the NCTC knew that a particular NSA intelligence product was derived from the Program, the said they reviewed the Program information in the same manner as other NSA intelligence products and, if appropriate, incorporated the Program information into analytical products being prepared for the DNI and other senior intelligence of?cials. They identi?ed the President ?3 Terrorism Threat Report and the Senior Executive Terrorism Report as examples of the types of ?nished intelligence products that would, at times, contain Program information. NCTC with Program access said they had broad access to a wide variety of high quality and fully evaluated terrorism related intelligence. in particular, NCTC told us that by virtue of their NCTC assignments, they had access to some of the most sensitive and valuable terrorism intelligence available to the Intelligence Community. NCTC characterized the Program information as being a useful tool, but also noted that the Program information Was only one of several valuable sources of information available to them from numerous collection sources and methods. During interviews, NCTC and other ODNI personnel described the Program information as ?one tool in the tool box," ?one arrow in the quiver,? or in other similar phrases to connote that the Program information was not of greater value than other sources of intelligence. The NCTC we interviewed said they could not identify speci?c examples where the Program information provided what they considered time-sensitive or actionable intelligence, but they ll recalled attend'n The NCT uniformly told us that during the period when NCTC prepared the threat assessment memoranda, the intelligence demonstrating the al Qaeda threat to the United States was overwhelming and readily available to the Intelligence Community. When asked about the value of the Program, Hayden said ?without the Program as a skirmish line you wouldn?t know what you don?t know.? He explained that by using the Program to look at a ?quadrant of communications" the Intelligence Community was able to assess the threat arising from those communications, which allowed intelligence Community leaders to make valuable judgments regarding the allocation of national security resources. He said looking at the terrorist threat in this manner was similar to soldiers on a combat patrol who look in all directions for the threat and assign resources based on what they Ieam. Hayden said that NSA General Counsel Vito Potenza often described the Program as an ?early warning system? for terrorist threats, which Hayden thought was an accurate description of the Program. Hayden told us the Program was extremal da terrorist attack. Hayden cite 226 APPROVED FOR PUBLIC RELEASE as exam les where the Program information was effectively used to disrupt al Qaeda Operatives. 3 I). Em No NCTC Role in Identifying Program Targets and Tasking Collection We did not identify any information that indicated that ODNI or NCTC personnel were involved in identifying or nominating targets for collection within the Program. ODNI personnel told us that ODNI and NCTC are non? operational elements of the Intelligence Community and were not involved in nominating targets for Program collection. ODNI Oversight of the Program We examined the role of the ODNI oversight components -- CLPO, OIG, and OGC -- in providing compliance oversight for the Program. We found that while the Pregram was subject to oversight by the NSA OIG, the ODNI oversight components had a limited role in providing oversight for the Program. During the review, we leamed that within the first year of the Program, then NSA Director Hayden obtained White House approval allowing the NSA and designated NSA OIG of?cials to be read into the Program to provide compliance oversight for the Program. In furtherance of the NSA oversight program, the NSA IG provided compliance reports and briefings to the NSA Director, NSA General Counsel, and cleared White House personnel, including the Counsel to the President."5 In reviewing the ODNI oversight role regarding the Program, we found that the ODNI oversight components had limited involvement in oversight of the Program. We found that the opportunity for the ODNI to participate in Program oversight was limited by the fact that ODNI oversight personnel were not According to the General Counsel to the President's Intelligence Oversight Board the members and staff were not read into the Program and did not receive compliance reports Earn the NSA IG. 228 APPROVED FOR PUBLIC RELEASE granted timely access to the Program by the White House personnel responsible for approving access. In addition, we found that the newly formed ODNI oversight offices were in varying stages of agency stand-up and lacked the necessary experienced staff and resources to effectively participate in oversight of the Program. For example, General Counsel Powell received Program access after his arrival in January 2006, but his predecessor, then Acting General Counsel Corin Stone, was not read into the Program until a few days before Powell in January 2006, several months after the Program became operational within ODNI and only after she had read about the Program in a December 2005 newspaper article. '7 Similarly, CLPO Alexander Joel, who is responsible for reviewing the privacy and civil liberties implications of intelligence activities, requested but did not receive Program access until October 2006, shortly before the Program terminated.? Joel told us that Negroponte and Hayden supported his request for Program access, but White House staff delayed approval for several months. Joel said that while waiting for approval of his Program access, Hayden gave him some insight about the Program that did not require the disclosure of compartmented information. Joel found this information helpful in planning his later review. Finally, then ODNI Inspector General Edward Maguire and his oversight staff did not obtain Program access until 2008, long after the Program had terminated.? Once read into the Program, Powell and Joel were provided with reasonable access to NSA compliance reports and brie?ngs relating to the NSA OIG oversight program. Powell told us that he was satis?ed that the NSA IG provided a reasonable degree of Program oversight. Similarly, Joel said he believed that he had received ?ill disclosure regarding the NSA oversight program and found the NSA oversight effort to be reasonable. We also learned that the members of the President?s Privacy and Civil Liberties Oversight Board (PCLOB) reviewed the Program, in part, in association with Joel.20 The PCLOB review was contemporaneous with Joel?s review '7 Powell was appointed General Counsel in January 2006 and served in that position as a recess appointment Until his Senate con?rmation in April 2006. Prior to his appointment, Powell was an Associate Counsel to the President and Special Assistant to the President where he worked on initiatives related to the Intelligence Conununity. However, Powell was not read into the Program while serving at the White House. '3 (U/P?eetea Joel is the Civil Liberties Protection Of?cer (CLPO) with the responsibility for ensuring that the protection of privacy and civil liberties is incorporated in the policies and procedures of the Intelligence Community. The CLPD are set forth in the Section 103d of Reform and Ten-prism Prevention Act of 2004. DIG personnel were not read into the Program until 2008, DIG of?cials were alerted to the existence of the NSA collection program through a December 2005 newspaper report. Shortly after that report, the NSA lG told ODNI of?cials that the NSA was conducting oversight of that NSA program. PDDNI Hayden also told Maguire that the NSA program was subject to NSA OIG oversight 20 (U) The PCLOB was created by the Intelligence Refonit and Ten?orism Prevention Act of2004 (IRTPA), which requires the Board to ?ensure that concerns with reSpect to privacy and civil liberties are appropriately considered in the implementation of laws. regulations, and executive branch policies related to efforts to protect the Nation against terrorism (P. L. [08-458, 2004). A . . . A ?og?ut- H?u?u? 230 APPROVED FOR PUBLIC RELEASE ?(INth -. and resulted in an independent and generally favorable ?nding regarding the NSA implementation of the Program. A?er the PCLOB review, a PCLOB board member published an editorial article, in part, quoted below, that summarized his observations regarding the NSA effort in implementing the Program. There were times, including when the Board Was ?read into" and given complete access to the operation of the Terrorist Surveillance Program that I wondered whether the individuals doing this dif?cult job on behalf of all of us were not being too careful, too concerned, about going over the privacy and liberties lines so concerned, with so many internal checks and balances, that they could miss catching or preventing the bad guys from another attack. And I remember walking out of these brie?ng sessions in some dark and super-secret agency with the thought: I wish the American people could meet these people and observe what they are doing.21 In sum, the ODNI oversight components had limited and belated involvement in the oversight of the Program. However, once read into the Program, Powell and Joel determined that the Program was subject to reasonable oversight by the NSA OIG. Moreover, the initial White House delay in granting ODNI oversight personnel access to the Program occurred prior to the 2008 revision to Executive Order (E0) 12333, which expressly grants ODNI oversight components broad access to any information necessary to performing their oversight duties. In particular, E0 12333 provides in relevant part that: Section 1.6 Heads of Elements of the Intelligence Community. The heads of elements of the Intelligence Community shall: Ensure that the inspectors general, general counsels, and agency of?cials responsible for privacy and civil liberties protection for their respective organizations have access to any information or intelligence necessary to perform their duties. WW E0 12333, as amended, clari?es and strengthens the ability to provide compliance oversight. In light of the recent change to E0 12333, and with current staf?ng, we believe that oversight components have suf?cient resources and authority to perform their responsibilities to conduct oversight of closely held intelligence activities, assuming timely noti?cation. 2? (U) The quote is taken from a May 5, 2007. article by former PCLOB member Lanny Davis, entitled, ?Why I Resigned From The President '3 Privacy and Civil Liberia: Oversight Board - And Where We Go From Here. The article was published on webpage of The Huf?ngton Post, mnv.huftingtonpost.com. APPROVED FOR PUBLIC RELEASE V. (U) CONCLUSION We found that the primary role in the Program was the preparation of 12 ODNI threat assessments approved by the DNI or PDDNI for use in the Program reauthorizations. The ODNI?prepared threat assessments set forth the view regarding the existing threat of an al Qaeda terrorist attack against the United States and provided the recommendation regarding the need to reauthorize the Program. We found that the ODNI threat assessments were drafted by experienced NCTC personnel under the supervision of knowledgeable NCTC supervisors. We noted that the threat assessments were subject to review by OGC and D01 attorneys before approval. Additionally, we found that the process used by the ODNI to prepare and obtain approval of the threat assessments was straightforward, reasonable, and consistent with the preparation of other documents requiring DNI approval. Overall, we found the ODNI process for the preparation and approval of the threat assessments was responsible and effective. We also found that the ODNI oversight components played a limited role in oversight of the Program. The limited ODNI oversight role was due to delays in obtaining Program access for ODNI oversight personnel and to temporary resource limitations related to the stand-up of the agency. However, we believe that the 2008 amendments to E0 12333 and improved staf?ng levels provide the ODNI oversight components with suf?cient resources and authority to ?ll?ll their current oversight responsibilities, assuming timely noti?cation. APPROVED FOR PUBLIC RELEASE This page intentionally le? blank. 232 APPROVED FOR PUBLIC RELEASE VT. (U) APPENDIX - STRUCTURE OF THE ODNI 2005 i DNI 0. rank: Insector General MLEdmxd Maul?c General Counsel Nunlnsa pendan Can?nm?on ggeralmmaelv Ha den I Ombudsman Vacant Civil- Liberties Protection . Wu? 5811' - Dr. Eric C. .. I ADNI 8; COS - 5 NCIX Mr. David R. Shudd fats. ?Jichalla Van Clan- mantra - - Nomm?J pandmg Ccn?tmation I I DDNI forAnalsm ODNI for Collection '99? for Hana emem "Kim l. 'Eatlz? 1 "Bald lt' . Dr; Charles Thom: Furr I Mrs. Mu: Marmaraleth DDNI for - Customer utcomes 'Wantlt" LTG Ronald Burma Jr. NCPC Vice Admiral Redd. Rat. Brill Wm 17 APPROVED FOR PUBLIC RELEASE APPROVED FOR PUBLIC RELEASE PREPARED BY THE OFFICES OF INSPECTORS GENERAL OF THE DEPARTMENT OF DEFENSE DEPARTMENT OFJUSTICE CENTRAL INTELLIGENCE AGENCY NATIONAL SECURITY AGENCY OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (U) ANNEX To THE REPORT ON THE SURVEILLANCE PROGRAM REPORT NO. VOLUME II (U) ANNEX TO THE REPORT ON THE SURVEILLANCE PROGRAM VOLUME 111 10 JULY 2009 PREPARED BY THE OFFICES OF INSPECTORS GENERAL OFTHE DEPARTMENT OF DEFENSE DEPARTMENT OF JUSTICE CENTRAL INTELLIGENCE AGENCY NATIONAL SECURITY AGENCY OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE Special Warning The report contains classi?ed material and no distribution may be made without prior consent of the particig?g?pg Insgectors General. Impropcr disclosure of this in criminal, G'Nil, or Panama's; REPORT NO. APPROVED FOR PUBLIC RELEASE APPROVED FOR PUBLIC RELEASE U.S. Department of Justice Of?ce of the Inspector General A Review of the Department of Justice?s Involvement with the President?s Surveillance Program (U) Department of Justice Office of the Inspector General Oversight and Review Division July 2009 APPROVED FOR PUBLIC RELEASE APPROVED FOR PUBLIC RELEASE TABLE OF CONTENTS CHAPTER ONE: INTRODUCTION (U) .. 1 I. Methodology of OIG Review (U) .. 3 II. Organization of this Report (U) .. 5 CHAPTER TWO: LEGAL AUTHORITIES (U) ..7 I. Constitutional, Statutory, and Executive Order Authorities (U) .. 7 A. Article II, Section 2 of the Constitution (U) .. 7 B. The Fourth Amendment (U) .. 7 C. The Foreign Intelligence Surveillance Act (FISA) (U) .. 8 1. Overview of FISA (U) .. 8 2. FISA Applications and Orders (U) .. 10 3. FISA Court (U) .. 11 D. Authorization for Use of Military Force (U) .. 12 E. Executive Order 12333 (U) .. 13 11. Presidential Authorizations (U) .. 14 A. Types of Collection Authorized .. 15 B. Findings and Primary Authorities (U) .. 16 C. The Reauthorization Process (U) .. 16 D. Approval ?as to form and legality? (U) .. 17 CHAPTER THREE: INCEPTION AND EARLY OPERATION OF STELLAR WIND (SEPTEMBER 2001 THROUGH APRIL 2003) (SW: .. 19 I. Inception of the Stellar Wind Program .. 19 A. The National Security Agency (U) .. 19 B. Implementation of the Program (September 2001 through November 2001) .. 20 1. Pre-Stellar Wind Of?ce of Legal Counsel Legal Memoranda (U) .. 23 2. Presidential Authorization of October 4, 2001 ..28 C. Presidential Authorization is Revised and the Of?ce of Legal Counsel Issues Legal Memoranda in Support of the Program (November 2001 through January 2002) .. 3 1 1. Presidential Authorization of November 2, 2001 .. 3 1 2. Yoo Drafts Of?ce of Legal Counsel Memorandum Addressing Legality of Stellar Wind .. 33 3. Additional Presidential Authorizations (U) .. 38 4. Subsequent Yoo Opinions (U) .. 39 5. Yoo?s Communications with the White House (U) .. 40 6. Gonzales?s View of the Department?s Role in Authorizing the Stellar Wind Program .. 41 II. Implementation of the Stellar Wind Program (U #510139} .. 42 A. Implementation of Stellar Wind wees} .. 42 1. Basket 1 Telephone and E~Mai1 Content Collection .. 44 2. Basket 2 Telephony Meta Data Collection .. 48 3. Basket 3 E-Mail Meta Data Collection .. 51 B. NSA Process for Analyzing Information Collected Under Stellar Wind .. 52 1. Basket 1: Content tasking, Analysis, and Dissemination .. 52 2. Baskets 2 and 3: Telephony and E-Majl Meta Data Queries, Analysis, and Dissemination .. 54 Early Participation in the Stellar Wind Program?(S?H?N?F} .. 58 A. FBI Director First Informed of Stellar Wind Program weesFBI Begins to Receive and Disseminate Stellar Wind ?Tippers? W1 .. 63 1. FBI Initiates NF .. 63 2. FBI Field Of?ces? ReSponse to I APPROVED FR PUBLIC RELEASE I 3. Efforts to Track Stellar Wind Tippers an Executive Management on Status of Leads .. 69 Justice Department Of?ce of Intelligence Policy and Review?s (OIPR) and FISA Court?s Early Role in Stellar Wind ..7o A Overview of OIPR (U) .. 71 B. OIPR Counsel Learns of Stellar Wind Program 71 C. FISA Court is Informed of Stellar Wind WSW .. 7 4 OIPR Implements ?Scrubbing? Procedures" for Stellar Wind Information in International Terrorism FISA Applications .. 78 1. Initial Scrubbing Procedures .. 79 2. Complications with Scrubbing Procedures .. 8 1 E. Judge Kollar?Kotelly Succeeds Judge Lamberth as FISA Court Presiding Judge (U) .. 83 1. Judge Kollar-Kotelly Modifies OIPR Scrubbing Procedures . . 83 2. OIPR implements Judge Kollar?Kotelly?s Scrubbing Procedure . .. .. 85 FBI Initiates Measures to Improve the Management of Stellar Wind Information .. 88 A. CAU Acting Unit Chief Evaluates FBI Response to Stellar Wind .. 89 B. FBI In reases Cooperation with NSA and Initiates *Project to Manage Stellar Wind Information WOW- .. 90 C. FBI Assigns CAU Personnel to SA on Full-Time Basis .. 93 010 Analysis (U) .. 94 CHAPTER FOUR: LEGAL REASSESSMENT OF STELLAR WIND 2003 THROUGH MAY 2004) .. 99 Justice Department Reassesses Legality of Stellar Wind Program ..99 A. Overview of Of?ce of Legal Counsel (U) .. 99 APPROVED FOR PUBLIC RELEASE - . 1 - B. Personnel Changes Within Of?ce of Legal Counsel (U) .. 100 1. Yoo?s Role in the Program (October 2001 through May 2003) (U) .. 100 2. Philbin Replaces Yoo (U) .. 103 3. Initial Concer 104 4 Problems with .. 106 5. Other Collection Concerns .. 108 6. Decision to Draft New OLC Memorandum (U) .. 108 C. Reassessment of Legal Rationale for the Program .. 109 l. Goldsmith Becomes OLC Assistant Attorney General (U) .. 109 2. NSA Denied Access to OLC Memoranda (U #1510140) .. 11 1 3. Goldsmith Joins Effort to Reassess Legal Basis for the Program?(513W .. 1 12 4. AUMF Beam Legal Rationale Supportin of the Stellar Wind Program?WW .. 113 5. Of?ce of Legal Counsel Raises its Reassessment of the Stellar Wind Program (December 2003 through January .. 1 15 6. Deputy Attorney General Comey is Read into the Program (U) .. 1 18 D. Of?ce of Legal Counsel Presents its Conclusions to the White House (U) .. 119 1. March 4, 2004: Comey Meets with Ashcroft to Discuss Problems with the Program (U) .. 120 2. March 5, 2004: Comey Determines Ashcroft is ?Absent or Disabled? (U) .. 12 1 3. March 5, 2004: Goldsmith and Philbin Seek Clari?cation from White House on Presidential Authorizations (U) .. 122 4. March 6 to 8, 2004: The Department Concludes That Yoo?s Legal Memoranda Did Not Cover the Program (U) .. 124 5. March 9, 2004: White House Seeks to Persuade Department and FBI to Support Continuation of the Program .. 126 6. Con?ict Ensues between Department and White House (U) .. 129 II. White House Continues Program without Justice Department?s Certi?cation .. 130 APPROVED FOR PUBLIC RELEASE WW White House Counsel Gonzales Certi?es March 11, 2004, Presidential Authorization .. 13 1 1. March 10, 2004: Of?ce of Legal Counsel Presses for Solicitor General to be Read into Program (U) .. 13 1 2. March 10, 2004: Congressional Leaders Briefed on Situation (U) .. 131 3. March 10, 2004: Hospital Visit (U) .. 134 4. March 10, 2004: Olson is Read into the Program (U). 140 5 March 11, 2004: Goldsmith Proposes Compromise Solution (U) .. 141 6. March 1 1, 2004: White House Asserts that Comey?s Status as Acting Attorney General was Unclear (U) 142 7. March 1 1, 2004: Gonzales Certi?es Presidential Authorization as to Form and Legality 144 Department and FBI Of?cials React to Issuance of March 11, 2004, Authorization-65W .. 148 2?1 White House Agrees to Initial Responses of Department and FBI Of?cials (U) 149 Department and FBI Of?cials Consider Resigning (U). 152 Carney and Mueller Meet with President Bush (U) .. 155 Comey Directs Continued Cooperation with NSA (U) .. 157 Department Conducts Additional Legal Analysis 158 Comey Determines that Ashcroft Remains ?Absent or Disabled? (U) .. 163 Judge Kollar?Kotelly Briefed on Lack of Attorney General Certi?cation (U) .. 164 Corney and Gonzales Exchange Documents Asserting Con?icting Positions (U) .. 164 .. 168 March 19, 2004, Modi?cation (U) .. 168 .. 175 April 2, 2004, Modi?cation (U) .. 1'78 APPROVED FOR PUBLIC RELEASE 8. Of?ce of Legal Counsel Assesses Compliance with New Collection Standards W4. .. 180 9. May 5, 2004, Presidential Authorization W: .. 181 10. May 6, 2004, OLC Memorandum .. 182 OIG Analysis (U) .. 186 A. Department?s Access to and Legal Review of Stellar Wind Program Through May 2004 .. 186 B. The Hospital Visit (U) .. 197 C. Recerti?cation of the Presidential Authorization and Modi?cation of the Program (U) .. 199 CHAPTER FIVE: STELLAR WIND TRANSITION TO FISA AUTHORITY (JUNE 2004 THROUGH AUGUST 2007) .. 203 I. E-Mail Meta Data Collection Under FISA .. 203 A. Application and FISA Court Order (U) .. 203 1. Decision to Seek a Pen Register and Trap and Trace Order from the FISA Court 203 2. Brie?ng for Judge Kollar-Kotelly (U) .. 205 3. The Application .. 205 4. Judge Kollar-Kotelly Raises Questions about PR TT Application WT .. 212 5. FISA Court Order (U) .. 213 B. imited UseThe President?s August 9, 2004, Memorandum to the Secretary of Defense .. OIL?Compliance with Order .. 2 19 1. Filtering Violations .. 2 19 2. FISA Court Renews PR TT Order .. 221 3. .. 222 D. Subsequent Applications and Orders . 224 II. Telephony Meta Data Collection Under FISA .. 225 APPROVED FOR PUBLIC RELEASE A. Decision to Seek Order Compelling Production of Call detail records .. 226 B. Summary of Department?s Application and Related FISA Court Order .. 228 C. Non-Compliance with Section 2 15 232 111. Content Collection under FISA W) .. 237 A. Decision to Seek Content Order .. 237 B. Summary of Department?s December 13, 2006, Content Application .. 239 0. Judge Howard Grants Application in Part 245 D. Domestic Selectors Application and Order 248 E. Last Stellar Wind Presidential Authorization Expires .. 250 F. First Domestic and Foreign Selectors FISA Renewal Applications .. 251 G. Revised Renewal Application for Foreign Selectors and Order .. 255 IV. The Protect America Act and the FISA Amendments Act of 2008 (U) .. 259 A. The Protect America Act (U) .. 260 B. The FISA Amendments Act of 2008 (U) .. 264 OIG Analysis (U) .. 267 CHAPTER SIX: .. 271 I -Process .. 272 II. Decision to Issue National Security Letters unde- -to Obtain Telephone Subscriber Information .. 277 ?and Scrubbing Process WSW) ..284 IV. Impact of Stellar Wind Information on FBI Counterterrorism Efforts (SHNF) ..291 A. Stellar Wind Statistics .. 291 B. FBI Field Of?ce Investigations of -Tippers APPROVED FOR PUBLIC RELEASE C. FBI Statistical Surveys 0 Meta Data Tippers .. 300 1. Early 2006 Survey of _I?e1ephony and E-Mail Meta Data Tippers .. 30 1 2. January 2006 Survey of E-Mail Meta Data Tippers .. 304 D. FBI Judgmental Assessments of Stellar Wind Information .. 305 E. Examples of FBI Counterterrorism Cases Involving Stellar Wind Information .. 310 OIG Analysis (U) .. 325 CHAPTER SEVEN: DISCOVERY ISSUES RELATED TO STELLAR WIND .. 333 I. Relevant Law (U) .. 333 II. Cases Raise Questions about Government?s Compliance with Discovery Obligations (336 Criminal Division Examines Discovery Issues (U) .. 340 A. The ?Informal Process? for Treating Discovery Issues in International Terrorism Cases (U) .. 341 B. _Memorandum Analyzing Discovery Issues Raised by the Stellar Wind Program W) .. 342 C. Of?ce of Legal Counsel and Discovery Issue (U) .. 346 IV. Use of the Classi?ed Information Procedures Act (CIPA) to Respond to Discovery Requests (U) .. 347 A. Overview of CIPA (U) .. 348 B. Use of CIPA in International Terrorism Prosecutions Alleged to Involve Stellar Wind?Derived Information WW .. 343 APPROVED FOR PUBLIC RELEASE C. Government Arguments in Speci?c Cases (U) .. 351 v. OIG ANALYSIS .. 357 CHAPTER EIGHT: PUBLIC STATEMENTS ABOUT THE SURVEILLANCE PROGRAM (U) .. 361 I. Summary of the Dispute about the Program (U) .. 361 II. The New York Times Articles and President Bush?s Con?rmation Regarding NSA Activities (U) .. 363 Other Administration Statements (U) .. 365 IV. Testimony and Other Statements (U) .. 366 A. Gonzales?s February 6, 2006, Senate Judiciary Committee Testimony (U) .. 367 B. Comey?s May 15, 2007, Senate Judiciary Committee Testimony (U) .. 370 C. Gonzales?s June 5, 2007, Press Conference (U) .. 371 D. Gonzales?s July 24, 2007, Senate Judiciary Committee Testimony (U) .. 371 E. FBI Director Mueller?s July 26, 2007, House Committee on the Judiciary Testimony (U) .. 376 F. Gonzales?s Follow?up Letter to the Senate Judiciary Committee (U) ..377 V. OIG Analysis (U) ..378 CHAPTER NINE: CONCLUSIONS (U) .. 387 I. Operation of the Program .. 388 II. Of?ce of Legal Counsel?s Analysis of the Stellar Wind Program .. 389 Hospital Visit and White House Recerti?cation of the Program (U) 394 IV. Transition of Program to FISA Authority .. 396 APPROVED FOR PUBLIC RELEASE V. Impact of Stellar Wind Information on FBI Counterterrorism Efforts .. 397 VI. Discovery and ?Scrubbing? Issuas .. 402 VII. Gonzales?s Statements (U) .. 404 Conclusion (U) .. 406 CHAPTER ONE INTRODUCTION (U) On October 4, 2001, three weeks after the terrorist attacks of September 11, 2001,? the President issued a Top Secret Presidential Authorization to the Secretary of Defense directing that the signals intelligence capabilities of the National Security Agency (NSA) be used to detect and prevent further attacks in the United States. The Presidential Authorization stated that an extraordinary emergency existed permitting the use of electronic surveillance within the United States for counterterrorism purposes, without a court order, under certain circumstances. For over 6 years, this Presidential Authorization was renewed at approximately 30 to 45 day intervals to authorize the highly classi?ed NSA surveillance program, which was given the cover term ?Stellar Wind.?1 Under these Presidential Authorizations and subsequently obtained Foreign Intelligence Surveillance Court (FISA Court) orders, the NSA intercepted the content of international telephone and e?mail communications of both US. and non-U.S. persons when certain criteria were met. In addition, the NSA collected vast amounts of telephony and e?mail meta data that is, communications signaling information showing contacts between and among telephone numbers a - not includin the contents of the communications. Within the Department of Justice (Department or Justice Department) and the Intelligence Community, the different types of information collected under the NSA program came to be referred to as three different ?baskets? of information. The collection of the content of telephone and e-mail 1 This program is also known as the President?s Surveillance Program (PSP). In Title of the Foreign Intelligence Surveillance Act Amendments Act of 2008 (FISA Amendments Act), the President?s Surveillance Program is de?ned as the intelligence activity involving communications that was authorized by the President during the period beginning on September 1 1, 2001, and ending on January 17, 2007, including the program referred to by the President in a radio address on December 17, 2005 (commonly known as the Terrorist Surveillance Program). FISA Amendments Act, Title Sec. 301(a)(3). (U) 2 communications was referred to as basket 1. The collection of telephone meta data?- including information on the date, time, and duration of the telephone call, the telephone number of the caller, and the number receiving the call was referred to as basket 2. The collection of e?mail meta data including the ?from,? ?bee,? and ?sent? lines of an e?mail, but not the ?subject? line or content of the e?mail was referred to as basket 3. The content and meta data information was used by the NSA, working with other members of the Intelli ence Communi to enerate intelli ence By March 2006, ove individual U.S. telephone numbers e?mail addresses had been ?tipped? to the FBI as leads, the vast majority of which were disseminated to FBI ?eld of?ces for investigation or other action. Some Stellar Wind?derived information also was disseminated to the larger Intelligence Community through traditional intelligence reporting channels.3 WSW In addition to the receipt of information from the program, the Justice Department was involved in the program in other ways. Most signi?cantly, the Department?s Of?ce of Legal Counsel (OLC) provided advice to the White House and the Attorney General on the overall legality of the Stellar Wind program. In addition, the Department?s Of?ce of Intelligence Policy and Review (now called the Of?ce of Intelligence in the Department?s National Security Division) worked with the FBI and SA to justify the inclusion of Stellar Wind-derived information in applications seeking orders under the Foreign Intelligence Surveillance Act (FISA), and when unable to do so, to exclude such information from the applications. The Department?s National Security Division (NSD) also submitted classi?ed ex parte legal ?lings in federal courts to address any Stellar Wind reporting concerning defendants during discovery in international terrorism prosecutions. eWWee/Ns? Beginning in December 2005, aspects of the Stellar Wind program were publicly disclosed in media reports, originally in a series of articles by The New York Times. After these articles disclosed the telephone and e-mail content collection (basket 1), the President, Attorney General Alberto Gonzales, and other Administration of?cials publicly con?rmed the 3 The larger Intelligence Community also includes components within other Departments, such as the Departments of Homeland Security, Treasury, Defense, and State. (U) existence of this part of the program. However, the other aspects of the program the collection of telephone and e-mail meta data? have not been publicly con?rmed. The President and other Administration of?cials labeled the NSA collection of information that was publicly disclosed as ?the Terrorist Surveillance Program,? although this name was sometimes used within the Intelligence Community to refer to the entire Stellar Wind program. The program was also referred to by other names, such as the ?Warrantless Wiretapping Program? or the Surveillance Program.? As discussed above, the technical name for the program, and the term we generally use throughout this report, is the Stellar Wind program.4 This report describes the Of?ce of the Inspector General?s (OIG) review of the Department?s role in the Stellar Wind program. Our review discusses the evolution of the Stellar Wind program, including the changes in the Department?s legal analyses of the program, the operational changes to the program, and the eventual transition of the program from presidential authority to statutory authority under FISA. The report also assesses the use of information derived from the Stellar Wind program, including the impact of the information in FBI counterterrorism investigations. 1. Methodology of OIG Review (U) During the course of this review, the OIG conducted approximately 80 interviews. Among the individuals we interviewed were former White House Counsel and Attorney General Gonzales; former Deputy Attorney General James Comey; former SA Director Michael Hayden; FBI Director Robert Mueller, former Counsel for Intelligence Policy James Baker; former Assistant Attorneys General for OLC Jay Bybee and Jack Goldsmith; former Principal Deputy and Acting Assistant Attorney General for OLC Steven Bradbury; former Deputy Assistant Attorney General for OLC and Associate Deputy Attorney General Patrick Philbin; and former Assistant Attorneys General for the NSD Kenneth Wainstein and Patrick Rowan. We also interviewed senior FBI Counterterrorism Division of?cials, the FBI General Counsel and other FBI attorneys, FBI special agents and intelligence and senior of?cials in the Department?s Criminal and National Security Divisions.5 (U) 4 Stellar Wind is classi?ed as a Top Secret/ Sensitive Compartmented Information program 5 Although the FBI is a component of the Department of Justice, references in this report to Department of?cials generally mean non?FBI Department of?cials. This (Cont?d.) APPROVED FOR PUBLIC RELEASE We attempted to interview former Attorney General John Ashcroft, but he declined our request for an interview. (U) In addition, we attempted to interview former Deputy Assistant Attorney General for OLC John Yoo, who drafted the early legal memoranda supporting the legality of the Stellar Wind program. Yoo, through his counsel, declined our request for an interview. We also attempted to interview White House officials regarding the program, including Andrew Card, former Chief of Staff to President George W. Bush. We made our request for an interview of Card both directly to Card and through the Office of the Counsel to the President (White House Counsel?s Of?ce). Card did not grant our request for an interview. Similarly, we attempted to interview David Addington, former Counsel to Vice President Richard B. Cheney. We contacted the Of?ce of the Vice President, but that of?ce did not respond to our request for an interview of Addington. (U) We believe that we were able to obtain a full picture of the evolution of the program and the theories supporting its legality. However, the refusal by White House of?cials, former Attorney General Ashcroft, and former Deputy Assistant Attorney General Yoo to be interviewed hampered our ability to fully investigate the process by which the White House and the Justice Department arrived at the initial legal rationale to support the program. In addition, because of our inability to interview Ashcroft, we could not fully determine what efforts the Department took to press the White House for additional Department attorneys to be read into Stellar Wind to work on the legal analysis of the program during its ?rst two years of operation. In our review, we also examined thousands of electronic and hard copy documents, including the Presidential Authorizations and threat assessments, OLC legal memoranda supporting the program, contemporaneous notes and e-mails of various senior Department and FBI of?cials, and FISA Court pleadings and orders. We also reviewed NSA materials, including NSA OIG reports on the Stellar Wind program and correspondence between the NSA Office of General Counsel and the Department. In addition, we received from the FBI an electronic database of its collection of Electronic Communications (EC) that were used to disseminate distinction is especially relevant to our discussion of the number of Department personnel read into the Stellar Wind program, as distinguished from the number of FBI personnel read into the program. APPROVED FOR PUBLIC RELEASE 1 Stellar Wind-derived leads to FBI ?eld of?ces. This database contained approximately ECs, including leads to the 56 field of?ces, and responses from those ?eld offices, among other documents. The OIG used this database to con?rm information it obtained through interviews and to assist in our analysis of FBI investigations that were based on Stellar Wind information. II. Organization of this Report (U) Chapter Two of this report provides an overview of the primary legal authorities that are relevant to the Stellar Wind program. This chapter also discusses the Presidential Authorizations that were issued to approve the program. (U Chapter Three describes the inception and early implementation of the Stellar Wind program from September 2001 through April 2003. This chapter includes a description of the early OLC legal memoranda on the legality of Stellar Wind, how the program was technically implemented, the early participation in the program, and the FISA Court?s first awareness of the program. Chapter Four covers the period from May 2003 through May 2004 when the legal rationale for the program was substantially reconsidered by the Justice Department. This chapter details in particular the events of March 2004 when the White House decided to continue the program without the Department?s certi?cation of a Presidential Authorization. During this time, Attorney General Ashcroft was heapitalized and Deputy Attorney General Comey temporarily exercised the powers of the Attorney General in his capacity as Deputy Attorney General. Comey declined to recertify the Presidential Authorization approving the program based on legal advice he received from OLC Assistant Attorney General Jack Goldsmith, who questioned the adequacy of the legal support for aspects of the program. Comey?s decision prompted a signi?cant dispute between the White House and the Justice Department, which resulted in White House Counsel Gonzales and White House Chief of Staff Card visiting Ashcroft in his hospital room in an unsuccessful attempt to have Ashcroft recertify the program. This chapter also describes the background to the dispute, the events related to the hospital visit, the threat by Department of?cials to resign over the dispute, and the eventual resolution of the dispute. assem? Chapter Five discusses the transition, in stages, from a program based on Presidential Authorizations to collection activities authorized under the FISA statute. This transition took place in stages between July 2004 and January 2007. This chapter also summarizes legislation in 2007 APPROVED FOR PUBLIC RELEASE . ll and 2008 designed to modernize certain provisions of FISA. WSW Chapter Six discusses the use of Stellar Wind information by the FBI. It describes the process by which the FBI disse Wind-derived leads to FBI ?eld of?ces under a program called as well as the impact and effectiveness of the Stellar Wind program to the counterterrorism efforts. Chapter Seven examines the Department?s handling of discovery issues related to Stellar Wind?derived information in international terrorism prosecutions. WSW Chapter Eight analyzes testimony and public statements about aspects of the Stellar Wind program by Attorney General Gonzales. We assess whether the Attorney General?s statements, particularly his testimony to the Senate Judiciary Committee in February 2006 and July 2007, were false, inaccurate, or misleading. Chapter Nine contains our conclusions and recommendations. (U) APPROVED FOR PUBLIC RELEASE 1 CHAPTER TWO LEGAL AUTHORITIES (U) This chapter summarizes the primary legal authorities referred to throughout this report concerning the Stellar Wind program. These authorities include Article II, Section 2 of the Constitution; the Fourth Amendment to the Constitution; the Foreign Intelligence Surveillance Act; the Authorization for Use of Military Force Joint Resolution (AUMF) passed by Congress after the terrorist attacks of September 1 1, 2001; Executive Order 12333; and the Presidential Authorizations speci?cally authorizing the Stellar Wind program. Other authorities, including relevant criminal statutes and judicial opinions, are discussed throughout. the report. I. Constitutional, Statutory, and Executive Order Authorities (U) A. Article II, Section 2 of the Constitution (U) Article II, Section 2 of the Constitution, which was one of the primary authorities cited in the Presidential Authorizations in support of the legality of the Stellar Wind program, provides in relevant part: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Of?cer in each of the executive Departments, upon any Subject relating to the Duties of their respective Of?ces . . . . B. The Fourth Amendment (U) The Fourth Amendment to the Constitution, which also was raised as an important factor in the analysis of the legality of the Stellar Wind program, provides: The right of the peOple to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or af?rmation, and particularly describing the place to be searched, and the person or things to be seized. APPROVED FOR PUBLIC RELEASE C. The Foreign Intelligence Surveillance Act (U) The Foreign Intelligence Surveillance Act (PISA), 50 U.S.C. 1801, et seq., was enacted in 1978 to ?provide legislative authorization and regulation for all electronic surveillance conducted within the United States for foreign intelligence purposes.? S. Rep. No. 95-701, at 9 (1978), reprinted in 1978 U.S.C.C.A.N. 3973, 3977. Three major FISA issues are covered in this report. First, as discussed in Chapter Four, FISA was central to a controversy that arose in late 2003 and early 2004 when of?cials in the Office of Legal Counsel (OLC) and others viewed FISA as potentially in con?ict with the legal rationale for at least one aspect of the Stellar Wind program. OLC of?cials reasoned that if courts viewed FISA in isolation, they might conclude that Congress intended to regulate the President?s power to conduct electronic surveillance during wartime, thereby raising questions about the legality of aspects of the program. Second, after the FISA Court was informed about the Stellar Wind program in January 2002, it required the government to carefully scrutinize each FISA application to ensure that no Stellar Wind-derived information was relied upon in support of a FISA application without the Court?s knowledge, and later without its consent. This process, known as ?scrubbing,? is discussed in Chapters Three and Six. Third, beginning in July 2004, the Stellar Wind program was brought under FISA authority in stages, with the entire program brought under FISA authority by Janu 2007. In Au st 2007 and a ain in Jul 2008 FISA was amended and The migration of the Stellar Wind program from presidential authority to FISA authority, as well as legislation subsequently enacted to modernize FISA, is discussed in Chapter Five. In the following sections, we summarize relevant provisions of FISA as they related to the Stellar Wind program. 1. Overview of FISA (U) FISA authorizes the federal government to engage in electronic surveillance and physical searches, to use pen register and trap and trace 5 Unless otherwise indicated, all references to FISA are to the statute as it existed prior to the Protect America Act of 2007 and the FISA Amendments Act of 2008. (U) APPROVED FOR PUBLIC RELEASE devices, and to obtain business records to acquire inside the United States foreign intelligence information by, in some instances, targeting foreign powers and agents of foreign powers.7 FISA also permits the targeting of foreign powers and their agents who are located outside the United States. As a general rule, the FISA Court must ?rst approve an application by the government before the government initiates electronic surveillance. FISA applications must identify or describe the ?target? of the surveillance, and must establish probable cause to believe that the target is a ?foreign power? or ?agent of a foreign power? and that ?each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.?8 50 U.S.C. 1804(all4llA) 85 FISA provides four exceptions to the requirement of obtaining judicial approval prior to conducting electronic surveillance: (1) for electronic surveillance directed at certain facilities where the Attorney General certi?es that the electronic surveillance is solely directed at communications transmitted by means used exclusively between or among foreign powers or from prOperty under the open and exclusive control of a foreign power, 50 U.S.C. 1802; (2) where the Attorney General determines an emergency exists and authorizes emergency surveillance until the information sought is obtained, the after-?led application for an order is denied, or the expiration of ?7 2 hours from the time of Attorney General authorization, 50 U.S.C. 1805(f); (3) for training and testing purposes, 50 U.S.C. 1805(g); and (4) for 15 days following a congressional declaration of war, 50 U.S.C. 181 1.9 (U) The 15-day war declaration exception to warrant requirement was particularly relevant to the events of 2004, when OLC reassessed its prior opinions concerning the legality of the Stellar Wind program. 7 This report is primarily concerned with the provisions of FISA that authorize electronic surveillance, pen register and trap and trace devices, and access to certain business records. 3 The terms ?foreign power? and ?agent of a foreign power? are de?ned in FISA at 50 U.S.C. 1801(a) 85 ?Foreign power? is de?ned, inter alia, as ?a group engaged in international terrorism or activities in preparation therefor; . . . 50 U.S.C. 1801(a)(4). An ?agent of a foreign power? may be a U.S. person, de?ned at 50 U.S.C. 1801(i) to mean, inter alia, a United States citizen or permanent resident alien. The term ?facilities? is not de?ned in FISA. (U) 9 The Attorney General?s emergency surveillance authority under 50 U.S.C. 1805(t) was extended to 7 days under Section 105(a) of the FISA Amendments Act of 2008. (U) APPROVED FOR PUBLIC RELEASE Another FISA provision prohibits persons from intentionally engaging in electronic surveillance ?under color of law except as authorized by 50 U.S.C. 1809(a)(1). As discussed in Chapter Eight, in 2006 the Justice Department asserted in a publicly released legal analysis that this provision did not preclude certain warrantless electronic surveillance activities because such surveillance was ?authorized by? subsequent legislative enactments principally the AUMF. The Department also asserted that the AUMF ?con?rms and supplements the President?s constitutional authority? to conduct warrantless electronic surveillance against the enemy during wartime. (U) 2. FISA Applications and Orders (U) FISA applications were presented to the FISA Court by the Department?s Of?ce of Intelligence Policy and Review Department and FBI of?cials familiar with the preparation and presentation of FISA applications described this process as extremely time?consuming and labor intensive. (U) Each application must be approved and signed by the Attorney General (or Acting Attorney General) or Deputy Attorney General and must include the certi?cation of a federal of?cer identifying or describing the target of the electronic surveillance; a ?statement of the facts and circumstances relied upon by the applicant to justify his belief? that the target is a. foreign power or agent of a foreign power and that the electronic surveillance is directed at the facilities or places used or to be used by the target; a statement of proposed minimization procedures; and a detailed description of the nature of the information sought and the type of communication or activities to be subjected to the surveillance. 50 U.S.C. The application must also include the certification of a 1? The Of?ce of Intelligence Policy and Review became a part of the Department?s National Security Division, which was created in September 2006. As of April 2008, the Of?ce of Intelligence Policy and Review was renamed the Of?ce of Intelligence. This organizational change did not affect the FI SA application process. (U) 11 FISA de?nes minimization procedures as [s]peci?c procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the (Cont?d.) high-ranking executive branch of?cial or of?cials designated by the President from among those executive officers employed in the area of national security or defense that the information sought is deemed to be foreign intelligence information, that such information ?cannot reasonably be obtained by normal investigative techniques,? and that a ?signi?cant purpose? of the surveillance is to obtain foreign intelligence information.12 Id. at 1804(a)(7). (U) FISA orders authorize electronic surveillance of U.S. persons for 90 days. FISA orders may be renewed upon the same basis as the underlying order. 50 U.S.C. 1805(e). As noted, FISA also provides for the emergency use of electronic surveillance. When the Attorney General reasonably determines that an emergency situation exists, the use of electronic surveillance may be approved for a period of up to 72 hours (and under the FISA Amendments Act of 2008, up to 7 days) without a FISA order. 50 U.S.C. 1805(f). (U) 3. FISA Court (U) The FISA statute established the FISA Court to review applications and issue orders. The FISA Court initially was composed of seven US. District Court judges designated by the Chief Justice of the US. Supreme Court to serve staggered, non-renewable 7 ?year terms.13 50 U.S.C. particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information . . . . 50 U.S.C. 1801(h)(1). (U) 11? As initially enacted, FISA required of?cials to certify that ?the purpose? of the surveillance was to obtain ?foreign intelligence information.? However, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (the USA PATRIOT Act) was enacted in October 2001 and amended this language in FISA to require only that of?cials certify that ?a signi?cant purpose? of the surveillance was to obtain foreign intelligence information. 50 U.S.C. 1804(a)(7)(B). This amendment, along with post-September 11 changes to Attorney General guidelines on intelligence sharing procedures and a ruling by the FISA Court of Review, removed the so-called ?wall? that had existed between intelligence?gathering activities and criminal investigations. See Memorandum from the Attorney General to Director of the FBI, et al., entitled "Intelligence Sharing Procedures for Foreign Intelligence and Foreign Counterintelligence Investigations Conducted by the (March 6, 2002); In. re Sealed Case, 310 F.3d 717, 727 (For. Int. Surv. Ct. Rev. did not ?preclude or limit the government?s use or proposed use of foreign intelligence information, which included evidence of certain kinds of criminal activity, in a criminal prosecution?). (U) 13 To achieve staggered terms, the initial appointments ranged from one to seven years. 50 U.S.C. 1803(d). (U) 1803(a) 85 The number of judges serving on the FISA Court was increased to 1 1 by the USA PATRIOT Act of 2001. (U) D. Authorization for Use of Military Force (U) On September 18, 2001, in response to the terrorist attacks of September 1 1, Congress approved an Authorization for Use of Military Force Joint Resolution (AUMF). In conjunction with the President?s Commander-in?Chief authority under Article II of the Constitution, this legislation has been cited in support of the President?s authority to conduct electronic surveillance Without judicial approval. See, Legal Authorities Supporting the Activities of the National Security Agency Described by the President, January 19, 2006 (Justice Department White Paper), at 617. The AUMF states, in pertinent part: To authorize the use of the United States Armed Forces against those responsible for the recent attacks launched against the United States. Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES IN GENERAL That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 1 1, 2001, or harbored such organizations or APPROVE FOR PUBLIC RELEASE persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. (U) Pursuant to this authority, the President ordered the U.S. armed forces to invade Afghanistan to combat al Qaeda terrorists and overthrow the Taliban government that had given them refuge. (U) In 2004, OLC took the position that the AUMF was ?expressly designed to authorize whatever military actions the Executive deems appropriate to safeguard the United including the use of electronic surveillance to detect and prevent further attacks. See Office of Legal Counsel Memorandum, May 6, 2004, at 31, citing 50 U.S.C. 1811. In addition, the Justice Department asserted in the 2006 White Paper that in enacting FISA Congress contemplated that a later legislative enactment could authorize electronic surveillance outside the procedures set forth in FISA itself, and cited the AUMF as such a legislative enactment. See Justice Department White Paper at 20-28, citing 50 U.S.C. 1809(a)(1). WSW E. Executive Order 12333 (U) On December 4, 1981, President Reagan signed Executive Order 12333 as part of a series of legal reforms that followed abuses of intelligence-gathering authority documented by the Church Commission in the 19703.14 Executive Order 12333 placed restrictions on intelligence collection activities engaged in by Executive Branch agencies, including the SA, while also seeking to foster ?full and free exchange of information? among these agencies.15 Executive Order 12333 at 1.1. (U) Executive Order 12333 provides that the Attorney General is authorized ?to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power.? Id. at 2.5. Executive Order 12333 also provides that 14 See http:/ Volumes 5 and 6 of the Church Commission report address abuses of intelligence-gathering authority by the NSA and the FBI. (U) 15 Executive Order 12333 was amended on July 30, 2008, by Executive Order 13470. This report refers to Executive Order 12333 as it existed prior to that amendment. (U) APPROVED FOR PUBLIC RELEASE I a A . electronic surveillance, as de?ned under FISA, must be conducted in accordance with FISA.16 (U) Executive Order 12333 prohibits the collection of foreign intelligence information by ?authorized [agencies] of the Intelligence Community . . . for the purpose of acquiring information concerning the domestic activities of United States persons.? Id. at (U) However, in authorizing the Stellar Wind program,? As discussed previously, the legal rationale advanced for this exemption was that the Authorization for Use of Military Force and the President?s Commander-in?Chief powers gave the President the authority to collect such information, notwithstanding the FISA statute. II. Presidential Authorizations (U) The Stellar Wind program was ?rst authorized by the President on October 4, 2001, and periodically reauthorized by the President through a series of documents issued to the Secretary of Defense entitled ?Presidential Authorization for Specified Electronic Surveillance Activities During a Limited Period to Detect and Prevent Acts of Terrorism Within the United States? (Presidential Authorization or Authorization). A total of 43 Presidential Authorizations, not including modi?cations and related presidential memoranda, were issued over the duration of the program from October 2001 through February 2007.17 Each Authorization directed the 15 Prior to September 11, 2001, Executive Order 12333 and FISA were generally viewed as the principal governing authorities for conducting electronic surveillance. For example, in 2000 the NSA reported to Congress that (U) The applicable legal standards for the collection, retention, or dissemination of information concerning U.S. persons re?ect a careful balancing between the needs of the government for such intelligence and the protection of the rights of US. persons, consistent with the reasonableness standard of the Fourth Amendment, as determined by factual circumstances. (U) In the Foreign Intelligence Surveillance Act (PISA) and Executive Order (E.O.) 12333, Congress and the Executive have codified this balancing. (Citations omitted.) NSA Report to Congress, Legal Standards for the Intelligence Community in Conducting Electronic Surveillance (2000). (U) '7 The Presidential Authorizations were issued on the following dates: October 4, 2001; November 2, 2001; November 30, 2001; January 9, 2002; March 14, 2002; April 18, 2002; May 22, 2002; June 24, 2002; July 30, 2002; September 10, 2002; October 15, 2002?, November 18, 2002; January 8, 2003; February 7, 2003; March 1'7, 2003; April 22, (Cont?d.) APPROVED FOR PUBLIC RELEASE l. .31. criteria are described in detail in Chapters Three and Four of this report. A. Types of Collection Authorized The scope of collection permitted under the Presidential Authorizations varied over time, but generally involved intercepting the content of certain telephone calls and e-malls, and the collection of bulk telephone and e?mail meta data. The term ?meta data? has been described as ?information about information.? As used in the Stellar Wind program, for telephone calls, meta data generally refers to ?dialing-type information? (the originating and terminating telephone numbers, and the date, time, and duration of the call), but not the content of the call. For e?rnails, meta data generally refers to the ?from,? ?bee,? and ?sent? lines of an e-mail, but not the ?subject? line or content. The information collected through the Stellar Wind program fell into three categories, often referred to as ?baskets?: I Basket 1 (content of telephone and e-mail communications); I Basket 2 (telephony meta data}; and - Basket 3 (e-mail meta data). 2003; June 11, 2003; July 14, 2003; September 10, 2003; October 15, 2003; December 9, 2003; January 14, 2004; March 11, 2004; May 5, 2004; June 23, 2004; August 9, 2004; September 17, 2004; November 17, 2004; January 11, 2005; March 1, 2005; April 19, 2005; June 14, 2005; July 26, 2005; September 10, 2005; October 26, 2005; December 13, 2005; January 27, 2006; March 21, 2006; May 16, 2006; July 6, 2006; September 6, 2006; October 24, 2006 and December 8, 2006. The last Presidential Authorization expired February 1, 2007. There were also two modi?cations of a Presidential Authorization and one Presidential memorandum to the Secretary of Defense issued in connection with the Stellar Wind program. B. Findings and Primary Authorities (U) In this section, we describe certain features common to all the Presidential Authorizations. Each of the Presidential Authorizations included a ?nding to the effect that terrorist groups of global reach possessed the intent and capability to attack the United States, that an extraordinary emergency continued to exist, and that these circumstances ?constitute an ur ent and com ellin The primary authorities cited for the legality of these electronic surveillance and related activities were Article II of the Wte?ritTo?n?to 1n orm appropria mem ers 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.? Some Presidential Authorizations described brie?ngs given to members of Congress and FISA Court judges. WSW C. The Reauthorization Process (U) The Presidential Authorizations were issued at intervals of approximately 30 to 45 days. Department of?cials told the OIG that the intervals were designed to be somewhat ?exible to assure the availability of the principals that had to sign the Authorizations and to reassess the reasonableness of the collection.18 Steven Bradbury, former Principal Deputy and Acting Assistant Attorney General for the Of?ce of Legal Counsel (OLC), said that the main reason for periodically reauthorizing the program was to ensure that the Presidential Authorizations were reviewed frequently to assess the continued need for the program and the program?s ?3 The officials who signed the Authorizations included the Attorney General, the President, and the Secretary of Defense (or other high-ranking Department of Defense of?cial}. APPROVED FOR PUBLIC RELEASE value. As the period for each Presidential Authorization drew to a close, the Director of Central Intelligence (D01), and as of June 3, 2005, the Director of National Intelligence prepared a threat assessment memorandum for the President describing potential terrorist threats to the United States and outlining intelligence gathered through the Stellar Wind program and other means during the previous Authorization period. The D01 (and later the DN1) and the Secretary of Defense reviewed these memoranda and signed a recommendation that the program be reauthorized. WW Each recommendation was then reviewed by the OLC to assess whether, based on the threat assessment and information gathered from other sources, there was ?a suf?cient factual basis demonstrating a threat of terrorist attacks in the United States for it to continue to be reasonable under the standards of the Fourth Amendment for the President to [continue] to authorize the warrantless searches involved? in the program. The OLC then advised the Attorney General whether the constitutional standard of reasonableness had been met and whether the Presidential Authorization could be certi?ed ?as to form and legality.? D. Approval ?as to form and legality? (U) As noted above, the Presidential Authorizations were ?[a]pproved as to form and legality? by the Attorney General or other senior Department official, typically after the review and concurrence of the OLC. The lone exception to this practice was the March 1 1, 2004, Authorization which we discuss in Chapter Four. However, there was no legal requirement that the Authorizations be certi?ed by the Attorney General or other Department of?cial. Former senior Department of?cial Patrick Philbin told us he thought one purpose for the certi?cation was to give th of le itima so that it not ?look like a re eration.? Bradbury told us that the Justice Department certi?cations served as of?cial con?rmation that the Department had determined that the activities carried out under the program were lawful. 141W Former Attorney General Gonzales told us that certi?cation of the program as to form and legality was not required as a matter of law, but he believed that it ?added value? to the Authorization for three reasons. First, APPROVED FOR PUBLIC RELEASE I A he said that the NSA was being asked to do something it had not done before, and it was important to assure the NSA that the Attorney General hada roved the le all of the ro ram. Third, for ?purely political considerations? the Attorney General?s approval of the program would have value ?prospectively? in the event of congressional or Inspector General reviews of the program. CHAPTER THREE INCEPTION AND EARLY OPERATION or STELLAR WIND (SEPTEMBER 2001 THROUGH APRIL 2003) This chapter describes the early operation of the Stellar Wind program. The ?ve sections of the chapter cover the time period from September 2001 to April 2003. In Section I, we provide a brief overview of the National Security Agency (NSA) and the inception of the Stellar Wind program, including a description of the legal authorities relied upon to support the program and the scope of collection authorized under the Presidential Authorizations. In Section II, we describe key as ects of the irn lementation of the Presidential Authorizations the technical operation of the program, and the initial process fer analyzing and disseminating the information collected. In Sections and IV, we describe the and the Of?ce of Intelligence Policy and Review?s early knowledge of and involvement in Stellar Wind. In Section V, we describe measures the FBI implemented to improve its management of information derived from the program that the FBI disseminated to its ?eld of?ces. I. Inception of the Stellar Wind Program Irene) A. The National Security Agency (U) The NSA was established on October 24, 1952, by President Truman as a separate agency within the Department of Defense under the direction, authority, and control of the Secretary of Defense. See Presidential Memorandum to the Secretary of State and the Secretary of Defense, October 24, 1952. By Executive Order 12333 (December 4, 1981), the NSA was given responsibility within the US. Intelligence Community for all signals intelligence, including the ?collection of signals intelligence for national foreign intelligence purposes? and the processing and dissemination of such intelligence for counterintelligence purposes.lg (U) 19 Signals intelligence is de?ned as: 1 . A category of intelligence comprising either individually or in combination all communications intelligence, electronic intelligence, and foreign instrumentation signals intelligence, howeVer transmitted. (U) 2. Intelligence derived from communications, electronic, and foreign instrumentation signals. (U) (Cont?d.) APPROVED FOR PUBLIC RELEASE The two primary missions are to protect U.S. government information systems and to collect, process, and disseminate foreign signals intelligence information. This twofold mission is re?ected in the organizational structure, which consists of two operational directorates: The Information Assurance Directorate, which conducts defensive information operations to protect information infrastructures critical to the United States? national security interests, and the Signals Intelligence Directorate (SID), which controls foreign intelligence collection and processing activities for the United States. (U) The SID is divided into three major components two of which Analysis and Production-and Data Acquisition are relevant to the Stellar Wind program. The work of these components with respect to the Stellar.Wind program is discussed in more detail in Section II below. sema? B. Implementation of the Program [September 2001 through November 2001) Immediately following the September 11 terrorist attacks, the NSA modi?ed how it conducted some of its traditional si als collection activities. George Tenet, the Director of Central Intelligence at the time, mentioned the modification of these NSA collection activities during a meeting with Vice President Cheney shortly after the September 1 1 attacks to discuss the intelligence community?s response. According to Hayden, who did not attend the meeting but was told about it by Tenet, Cheney asked Tenet to inquire from the NSA whether there were additional steps that could be taken with respect to enhancing signals intelligence capabilities. Tenet related this message to Hayden, who responded that there was nothing further the NSA could do without additional authority. According to Hayden, Tenet asked him a short time later what the NSA could do if additional authority was provided. Department of Defense Dictionary of Military and Associated Terms, Joint Publication 1-02, 484. (U) Hayden consulted with experts from the SID and attorneys from the Of?ce of General Counsel about how the NSA could enhance its collection capabilities consistent with considerations of operational usefulness, technical feasibility, and legality. Hayden said he then attended a meeting at the White House to discuss how NSA signals intelligence collection capabilities could be modi?ed to respond to the September 11 attacks. Hayden told us he highlighted two issues at this meeting. First, Hayden stated at the meeting that the FISA statute?s applicability to evolving telecommunications technology ha i the intercept communications Accordin to Ha den, the NSA was au orized un er ExeCu ve 33333 13333 3h Thus, them not intelligence collection activities direct its traditional forei without having to first obtain FISA Court authorization.21 (new The second issue Hayden highlighted at the meeting concerned the meta data associated with telephonic and e-mail communications. Hayden said that obtaining access to the meta data of communications to and from 9? The FISA statute defines ?wire communication" as ?any communication while it is being carried by a wire, cable, or other like connection furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications.? 50 U.S.C. 1801(1). By its terms, FISA governs the acquisition of wire communications to or from persons in the United States if such ac uisition occurs in the United States. See 50 U.S.C. 1801(1) APPROVED FOR PUBLIC RELEASE the United States, as well as communications within the United States, would signi?cantly enhance the analytical capabilities. Hayden said he attended two additional meetings with Vice President Cheney to discuss further how NSA collection capabilities could be expanded along the lines described at the White House meeting. Vice President Cheney directed Hayden to meet with the Counsel to the Vice President, David Addington, to continue the discussion, which Hayden said he did. According to Hayden, Addington drafted the ?rst Presidential Authorization for the Stellar Wind program based on these meetings.22 The Stellar Wind program of?cially came into existence on October 4, 2001, when President Bush signed the Presidential Authorization drafted by Addington. The Authorization directed the Secretaiy of Defense to employ the signals intelligence capabilities of the NSA to collect certain foreign intelligence by electronic surveillance in order to prevent acts of terrorism within the United States.23 The Presidential Authorization stated that an extraordinary emergency existed because of the September 11 attacks, constituting an urgent and compelling governmental interest permitting electronic surveillance within the United States for counterterrorism purposes without judicial warrants or court orders. WSW Access to the Stellar Wind program was very restricted. Former White House Counsel and Attorney General Alberto Gonzales told the 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 non-operational persons, including Justice Department of?cials, and that as far as he was aware this decision-making authority had not been delegated either within the White House or to other agencies concerning read?in decisions for operational personnel, such as SA and 1?2 Hayden told us he could not recall the Justice Department having any involvement in or presence at meetings he attended to discuss enhancing NSA collection capabilities. Hayden said this mildly surprised him but that he assumed someone was keeping the Department briefed on these discussions. Gonzales, who was the White House Counsel at the time, also told the OIG that he would be ?shocked? if the Department was not represented at the White House meetings, and further stated that in the immediate aftermath of September 11, he met often with lawyers from the NSA, CIA, DOD, and the Justice Department with the objective of ?coordinating the legal thinking" concerning the United States? response to the attacks. Because we were unable to interview Addington, former Attorney General Ashcroft, and John Yoo, we do not know what role if any the Department played in drafting or reviewing the ?rst Presidential Authorization. The program was given the cover te_ at which time the cover term was changed to ?Stellar Wind.? 4374-15413? APPROVED FOR PUBLIC RELEASE FBI employees.24 However, as indicated in the NSA Of?ce of the Inspector General?s report on the President?s Surveillance Program (N SA OIG Report), decisions to read in NSA, CIA, and FBI operational personnel were made by the SA. According to the NSA OIG Report, SA Director Hayden needed White House approval to read in members of Congress, FISA Court judges, the NSA Inspector General, and others. See SA OIG Report at V. 1. Pre-Stellar Wind Of?ce of Legal Counsel Legal Memoranda (U) In this section, we summarize the initial legal memoranda from the Justice Department supporting the legal basis for the Stellar Wind program, and we describe the key aspects of the ?rst Presidential Authorization for the program. a. Hiring of John You (U) OLC Deputy Assistant Attorney General John Yoo was responsible for drafting the ?rst series of legal memoranda supporting the program.25 As noted above, You was the only OLC of?cial ?read into? the Stellar Wind program from the program?s inception until he left the Department in May 2003.25 The only other non?FBI Department of?cials read into the program until after Yoo?s departure were Attorney General Ashcroft, who was read in on October 4, 2001, and Counsel for Intelligence Policy James Baker, who was read in on January 1 1, 2002.27 24 Gonzales testi?ed before the Senate Judiciary Committee on July 18, 2006, that ?[als with all decisions that are non?operational in terms of who has access to the program, the President of the United States makes the decisions, because this is such an important programl-l? (U) 25 The Of?ce of Legal Counsel typically drafts memoranda for the Attorney General and the Counsel to the President, usually on matters involving signi?cant legal issues or constitutional questions, and in response to legal questions raised by Executive Branch agencies. In addition, all Executive Orders proposed to be issued by the President are reviewed by the Of?ce of Legal Counsel as to form and legality, as are other matters that require the President?s formal approval. (U) 25 The process of being ?read into? a compartmented program generally entails being approved for access to particularly sensitive and restricted information about a classi?ed program, receiving a brie?ng about the program, and formally acknowledging the brie?ng, usually by signing a nondisclosure agreement describing restrictions on the handling and use of information concerning the program. (U) 27 Daniel Levin, who served as both Chief of Staff to FBI Director Robert Mueller and brie?y as Ashcroft?s national security counselor, also was read into the program along with Mueller in late September 2001 at the FBI. According to Levin, White House Counsel Gonzales controlled who was read into the program, but Gonzales told him that the President had to personally approve each request. APPROVED FOR PUBLIC RELEASE Jay Bybee, the Assistant Attorney General for the Of?ce of Legal Counsel from November 2001 through March 2003, provided the OIG with background information on how Yoo came to be involved in national security issues on behalf of the OLC. Bybee?s nomination to be the OLC Assistant Attorney General was announced by the White House in July 2001. Bybee was not con?rmed by the Senate as the Assistant Attorney General until late October 2001.28 For several weeks after the September 1 1, 2001, terrorist attacks, Bybee remained a law professor at the University of Nevada-Les Vegas, and was sworn in as OLC Assistant Attorney General in late November Bybee told us that he traveled to Washington, D.C., sometime in July 2001 to interview applicants for Deputy Assistant Attorney General slots in OLC. In early July 2001, Kyle Sampson, at the time a Special Assistant to the President and Associate Director for Presidential Personnel assigned to handle presidential appointments to the Department of Justice, told Bybee that John Yoo was already under consideration for one of the OLC Deputy Assistant Attorney General slots. Bybee said Sampson asked him whether he would agree to have Yoo be one of his deputies. Bybee said that he knew Yoo only by reputation but was ?enthusiastic? about the prospect of having Yoo as a Deputy. Bybee told the OIG that he regarded Yoo as a ?distinguished hire.? Bybee said that after speaking with Sampson he called Yoo and asked him to work at OLC as a Deputy Assistant Attorney General. (U) In addition to speaking with Yoo, Bybee interviewed other prospective OLC Deputies, and hired several individuals, including Patrick Philbin and Ed Whelan, for those positions.29 The White House recommended, and Bybee agreed, that Whelan be designated Principal Deputy. Bybee stated that he knew Yoo would be disappointed because Yoo had wanted that position, and Bybee said that Yoo ?didn?t hide his disappointment.? Bybee told us that Yoo asked him whether since he was not selected for the Principal Deputy slot he could be guaranteed the ?national security portfolio.? Bybee agreed to Yoo?s request. Bybee told the OIG that this was an easy decision because Yoo had more national security experience than any of the other deputies. (U) 23 Bybee told us that Daniel was the Acting Assistant Attorney General at this time. (U) 39 Bybee told us that all Deputy candidates were also interviewed by the White House. As described in Chapter Four of this report, Philbin played a central role in the Department?s reassessment of the legal basis for the Stellar Wind program after John Yoo left the Department in May APPROVED FOR PUBLIC RELEASE I.Q A 1 Bybee said that Yoo began working in OLC in July 2001 and that all of the Deputies were in place before Bybee began serving as head of the OLC that November. (U) Bybee told us he was never read into the Stellar Wind program and could shed no further light on how Yoo came to draft the OLC opinions on the program. However, he said that You had responsibility for supervising the drafting of opinions related to national security issues by the time the attacks of September 11 occurred.30 Bybee described Yoo as ?articulate and brilliant,? and also said he had a ?golden resume? and was ?very well connected? with of?cials in the White House. He said that from these connections, in addition to Yoo?s scholarship in the area of executive authority during wartime, it was not surprising that Yoo ?became the White House?s guy? on national security matters. (U) h. Yoo?s Legal Analysis of a Warrantless Domestic Electronic Surveillance Program Before the start of the Stellar Wind program under the October 4, 2001, Presidential Authorization, Yoo drafted a memorandum evaluating the legality of a ?hypothetical? electronic surveillance program within the United States to monitor communications of potential terrorists. His memorandum, dated September 17, 2001, was addressed to Timothy Flanigan, Deputy White House Counsel, and was entitled ?Constitutional Standards on Random Electronic Surveillance for Counter-Terrorism Purposes.? Yoo drafted a more extensive version of this In October 4 2001, for White House Counsel Gonzales. es?swm 30 As noted above, Yoo, Ashcroft, Card, and Addington declined or did not respond to our request for interviews, and we do not know how Yoo came to deal directly with the White House on legal issues surrounding the Stellar Wind program. In his book ?War by Other Means,? Yoo wrote that a deputy to the assistant attorney general in charge of the office, I was a Bush Administration appointee who shared its general constitutional philosophy. . . . I had been hired specifically to supervise work on [foreign affairs and national security].? John Yoo, War by Other Means, (Atlantic Press, 2006), 19?20. ?s?sr?saa? APPROVED FOR PUBLIC RELEASE 3? As discussed below, however, his description of how communications would be collected and used under the program differed in key respects from the actual Operation of the Stellar Wind program. In fact, in a January 23, 2006, address to the National Press Club, former NSA Director Hayden stated: Let me talk for a few minutes also about what this program is not. It is not a drift net over Dearborn or Lackawanna or Freemont grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so?cailed abo APPROVED FOR PUBLIC RELEASE APPROVED FOR PUBLIC RELEASE Yoo's September 17 and October 4 memoranda were not addressed speci?cally to the Stellar Wind program, but rather to a ?hypothetical? randomized or broadly scoped domestic warrantless surveillance program. As discussed below, the ?rst Office of Legal Counsel opinion explicitly addressing the legality of the Stellar Wind program was not drafted until after the program had been formally authorized by President Bush on October 4, 2001. Gonzales told the OIG that he did not believe these ?rst two memoranda fully addressed the White House?s understanding of the Stellar Wind program. Rather, as described above, these memoranda addressed the legality of a ?hypothetical? domestic surveillance program rather than the Stellar Wind program as authorized by the President and carried out by the NSA.35 However, Gonzales also told us that he believed these ?rst two memoranda described as lawful activities that were broader than those carried out under Stellar Wind, and that therefore these opinions ?covered? the Stellar Wind program. 2. Presidential Authorization of October 4, 2001 On October 4, 2001, President Bush issued the ?rst of 43 Presidential Authorizations for the Stellar Wind ro am. The October 4 Authorization 35 Gonzales noted that Deputy White House Counsel Timothy Flanigan, the recipient of the ?rst Yoo memorandum, was not read into Stellar Wind. (U [Fe-He}- APPROVED FOR PUBLIC RELEASE In short, this ?rst Authorization allowed NSA to intercept the content of any communication, including those to, from, or exclusively within the United States, Where probable cause existed to one of the communicants was eniaied in international terrorism, The Authorization also allowed the NSA to ?acquire? telephony and e?mau meta data where one end of the communication was foreign or neither communicant was known to be a U.S. citizen?? The Authorization stated that it relied primarily on Article II of the Constitution and on the recently passed Authorization for the Use of Military Force (AUMF) to support the intelligence-gathering activities. The Authorization also stated that the President?s directive was based on threat assessments indicating that terrorist groups remained determined to attack in the United States. The Authorization stated that it was to terminate- from the date of its execution. As several Of?ce of Legal Counsel and other Department and NSA officials acknowledged, in addition to allowing the interception of the content of communications into or out of the United States, the literal terms of paragraph 4(a) (ii) of this ?rst Authorization would have allowed SA to intercept the content of purely domestic communications. NSA Director Hayden told us he did not realize this until Addington speci?cally raised the subject during a meeting the two had to discuss renewing the ?rst Authorization. According to Hayden, he told Addington that he did not want the NSA conducting such domestic interceptions and cited three reasons for this. First, he said the NSA was a foreign intelligence agency. Second, the collection infrastructure would not support the collection of purely domestic communications. Third, Hayden said he would require such a high evidentiary standard to justify intercepting purely domestic communication that such cases might just as well go to the FISA Court.? 3" Hayden said Addington did not pressure him on the subject and simply modi?ed the next Authorization to provide that the NSA may only intercept the content of communications that originated or terminated in the United States. We discuss the modi?cations to the Authorization in the next part of this chapter. APPROVED FOR PUBLIC RELEASE As a result, Hayden said the NSA did not exercise the apparent authority in the ?rst Authorization to intercept domestic-to?domestic communications. Goldsmith stated that Hayden?s position that the NSA not involve itself in domestic spying related back to ?getting in a lot of trouble? for its abuses during the 1970s. In addition, former Deputy Attorney General Comey told us that Hayden had said he was willing to ?walk up to the line? but would be careful ?not to get chalk on [his] shoes.? As discussed above, subsection of paragraph 4 of the Authorization covered the acquisition of both e-mail and telephony meta data. The e?mail (I meta data included the ?from,? ?bcc,? not the ?s b' ct? line or content 0 the e-mail. Telephony meta data acquisition included the dialing information from telephone billing data, such as the originating and terminating telephone number and the date, time, and duration of the telephone calls, but not the content of telephone calls. Under the Presidential Authorization, collection of both e-mail and telephony meta data was limited to circumstances in which one party to the communication was outside the United States or no party to the communication was known to be a US. citizen. Attorney General Ashcroft approved the first Presidential Authorization as to ?form and legality? on October 4, 2001_. According to NSA records, this was the same day that Ashcroft was verbally read into the Stellar Wind program. Daniel Levin, who in October 2001 was both a national security counselor to Attorney General Ashcroft and FBI Director Mueller?s Chief of Staff, told us that, according to Ashcroft, the Presidential Authorization was ?pushed in front of? Ashcroft and he was told to sign it.33 Levin stated that he was not with Ashcroft when this occurred and therefore he did not have an opportunity to advise Ashcroft about the Authorization before Ashcroft signed it. WSW James Baker, Counsel for Intelligence Policy, told us that Levin had given him the same account of how Ashcroft came to approve the October 4, 2001, Presidential Authorization. According to Baker, Ashcroft was told that the program was ?critically important? and that it must be approved as to form and legality. Baker said that Levin told him Ashcroft approved the 33 According to Hayden, Addington typed the Presidential Authorizations and personally couriered them around for signatures. However, the OIG was unable to determine whether Addington presented the ?rst Authorization to Ashcroft for signature, because both Ashcroft and Addington declined or did not respond to our requests to interview them. APPROVED FOR PUBLIC RELEASE Authorization on the spot. According to Baker, Levin also told Baker that when he learned there was no memorandum from the Of?ce of Legal Counsel concerning the program, Levin told Yoo to draft one. Levin?s account to us of the instruction that Yoo draft a memorandum concerning the legality of the program differed from Baker?s account. Levin told us that he said to Ashcroft that it ?wasn?t fair? that Ashcroft was the only Justice of?cial read into the program, and that for Ashcroft?s protection Levin advised Ashcroft to have another Department official read into the program for the purpose of providing advice on the legality of the program. Levin said he learned that Ashcroft was able to get permission from the White House to have one other person read into the program to advise Ashcroft, although Levin was not certain how Yoo came to be selected as that person.39 As discussed below, Gonzales told us that it was the President?s decision to read John Yoo into the program. C. Presidential Authorization is Revised and the Of?ce of Legal Counsel Issues Legal Memoranda in Support of the Program (November 2001 through January 2002) 1. Presidential Authorization of November 2, 2001 On November 2, 2001, with the ?rst Presidential Authorization set to expire, President Bush signed a second Presidential Authorization. The second Authorization relied upon the same authorities in support of the President?s actions, chie?y the Article II Commander?in-Chief powers and the AUMF. The second Authorization cited the same ?ndings in a threat assessment as to the magnitude otential threats and the likelihood of their occurrence in the future. 39 By October 4, 2001, Yoo had already drafted two legal analyses on a hypothetical warrantless surveillance program and therefore already had done some work related to the program prior to October 4 when Ashcroft was read in. {iPSff-Si-f??i?- APPROVED FOR PUBLIC RELEASE WW APPROVED FOR PUBLIC RELEASE WSW In addition, former OLC Principal Deputy and Actin Assistant Attorney General Steven Bradbury described this 2. Yoo Drafts Office of Legal Counsel Memorandum Addressing Legality of Stellar Wind The Stellar Wind program was ?rst authorized by President Bush and certi?ed as to form and legality by Attorney General Ashcroft on October 4, 2001, without the support of any formal legal opinion from the Of?ce of Legal Counsel expressly addressing Stellar Wind. The ?rst OLC opinion directly supporting the legality of the Stellar Wind program was dated November 2, 2001, and was drafted by Yoo. His opinion also analyzed the legality of the ?rst Presidential Authorization and a draft version of the second Authorization.40 In his November 2 memorand orne General Ashcroft Yoo ined that the Stellar Wind program As discussed in Chapter Four of this report, however, perceived de?ciencies in Yoo?s memorandum later became critical to the Of?ce of Legal Counsel?s decision to reassess the Stellar Wind program in 2003. We therefore describe Yoo?s legal analysis in his November 2 memorandum. Yoo acknowledged at the outset of his November 2 memorandum that ?[b]ecause of the highly sensitive nature of this subject and the time pressures involved, this memorandum has not undergone the usual editing and review process for opinions that issue from our Of?ce The memorandum then reviewed the changes to collection authori ?rs and second Presidential Authorizations. 4? The second Authorization was issued on November 2, 2001. In developing his legal memorandum, Yoo analyzed a draft of the second Authorization dated October 31, 2001. The 01G was not provided the October 31 draft Presidential Authorization, but based on Yoo?s description in his November 2 memorandum, it appears that the draft that Yoo analyzed tracked the language of the ?nal November 2, 2001, Authorization signed by the President. APPROVED FOR PUBLIC RELEASE Yoo did acknowledge in his memorandum that the ?rst Presidential Authorization was ?in tension with Yoo stated that FISA ?purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence,? but Yoo then opined that ?[s]uch a reading of FISA would be an unconstitutional infringement on the President?s Article II authorities.?41 Citing advice of the OLC and the position of the Department as presented to Congress during passage of the USA PATRIOT Act several weeks earlier, Yoo characterized FISA as merely providing a ?safe harbor for electronic surveillance,? adding that it ?cannot restrict the President?s ability to engage in warrantless searches that protect the national security.? 4? As discussed in Chapter Four, Goldsmith criticized this statement as conclusory and unsupported by any separation of powers analysis. APPROVED FOR PUBLIC RELEASE WW Regarding whether the activities conducted under the Stellar Wind program could be conducted under FISA, Yoo wrote that it was prob tie that FISA required an application to the FISA Court to describe the? or ?facilities? to be used by the target of the surveillance. Yoo also 3 ed that it was unlikel that a FISA Court would grant a warrant to covetih as contemplated in the Presidential Authorization. Noting that the Authorization could be viewed as a violation of civil and criminal sanctions in 50 U.S.C. 1809-10, Yoo opined that in this regard FISA represented an unconstitutional infringement on the President?s Article II powers. According to Yoo, the ultimate test of whether the government may engage in warrantless electronic surveillance activities is whether such conduct is consistent with the Fourth Amendment, not whether it meets the standards of FISA. Citing cases applying the doctrine of constitutional avoidance, Yoo reasoned that reading FISA to restrict the President?s inherent authority to conduct foreign intelligence surveillance would raise grave constitutional questions.4L2 Yoo wrote that ?unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area which it has not then the statute must be construed to avoid such a reading.?3 42 Yoo?s memorandum cited the doctrine of constitutional avoidance, which holds that ?wvhere an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.? Edward J. DeBartolo Corp. 1). Florida Gulf Coast Building Construction Trades Council, 485 US. 568, S75 (1988). You cited cases supporting the application of this doctrine in a manner that preserves the President?s ?inherent constitutional power, so as to avoid potential constitutional problems.? See, Public Citizen 1), Department of Justice, 491 US. 440, 466 (1989). 43 On March 2, 2009, the Justice Department released nine opinions written by the OLC from 2001 through 2003 regarding ?the allocation of authorities between the President and Congress in matters of war and national security? containing certain propositions that no longer re?ect the views of the OLC and ?should not be treated as authoritative for any purpose.? Steven G. Bradbury, Principal Deputy Assistant Attorney General, Of?ce of Legal Counsel, Department of Justice, Memorandum for the Files, ?Re: Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 1 1, 2001,? January 15, 2009, 1, 11. Among these opinions was a February 2002 classi?ed memorandum written by Yoo which asserted that Congress had not included a clear statement in FISA that it sought to restrict presidential authority to conduct warrantiess surveillance activities in the national security area and that the FISA statute therefore does not apply to the president?s exercise of his Commander-in-Chief authority. In a January 15, 2009, memorandum (included among those released in March), Bradbury stated that this preposition ?is problematic and questionable, given express references to the President?s authority? and is ?not supported by convincing reasoning.? persons crossing the border and that interceptions of communications in or out of the United States fell within the ?border crossing exception.? Yoo further opined that electronic surveillance in ?direct support of military operations? did not trigger constitutional rights agamst illegal searches and seizures, in part because the Fourth Amendment is primarily aimed at curbing law enforcement abuses. 44 One of these of?cials was Patrick Philbin, who following Yoo?s departure was ?dual-batted? as both an Associate Deputy Attorney General and a Deputy Assistant Attorney General in the Of?ce of Legal Counsel. (U) 45 We discuss the reassessment and criticism of Yoo?s analysis in Chapter Four. (U) APPROVED FOR PUBLIC RELEASE to Yoo, the surveillance authorized by the Presidential Authorizations advanced this governmental security interest. Yoo?s . . a - ost exclusive] on content interceptions. Yoo also omitted from his November 2 memorandum as well as from his earlier September 1'7 and October 4, 2001, memoranda any discussion of Youngstown Sheet 85 Tube Co. v. Sawyer, 343 U.S. 579 (1952), a leading case on the distribution of government powers between the Executive and APPROVED FOR PUBLIC RELEASE Legislative branches.47 As discussed in Chapter Four, Justice Jackson?s analysis of President Truman?s Article II Commander-in?Chief authority during wartime in the Youngstown case was an important factor in the Of?ce of Legal Counsel?s reevaluation in 2004 of Yoo?s opinion on the legality of the Stellar Wind program. 3. Additional Presidential Authorizations (U) On November 30, 2001, the President signed a third Authorization authorizing the Stellar Wind program. The third Authorization was virtually identical to the second Authorization of November 2, 2001, in ?nding that the threat of terrorist attacks in the United States continued to exist, the legal authorities cited for continuing the electronic surveillance, and the scope of collection. WSW OLC Principal Depu Bradb told the OIG tha Accordingly, the fourth Presidential Authorization, signed on January 9, 2002, modi?ed the scope of collection to provide: 4" In Youngstown, the Supreme Court held that President Truman's Executive Order directing the Secretary of Commerce to seize and operate steel plants during a labor dispute to produce steel needed for American troops during the Korean War was an unconstitutional exercise of the President?s Article II Commander-in-Chief authority. In a concurring opinion, Justice Jackson listed three categories of Presidential actions against which to judge the Presidential powers. First, ?[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its Id. at 635. Second, Justice Jackson described a category of concurrent authority between the President and Congress as a ?zone of twilight" in which the distribution of power is uncertain and dependant on ?the imperatives of events and contemporary imponderabies rather than on abstract theories of law.? Id. at 637 (footnote omitted). Third, ?[w]hen the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.? Id. Justice Jackson concluded that President Truman?s actions fell within this third category, and thus ?under circumstances which leave Presidential power mest vulnerable to attack and in the least favorable of possible constitutional postures.? Id. at 640. APPROVED FOR PUBLIC RELEASE Presidential Authorization, January 9, 2002. The language of the Authorization as modi?ed in January 2002 remained the collection standard in subsequent Presidential Authorizations extending the Stellar Wind Program, until the disputed Presidential Authorization in March 2004, which we discuss in Chapter Four. 4. Subsequent Yoo Opinions (U) In a 2?page memorandum to Attorne General Ashcroft dated did not affect the legality of the Authorization. Several identical Presidential Authorizations recertifying the Stellar Wind program were signed in 2002. (U #13999) In October 2002, at Attorney General Ashcroft?s request, Yoo drafted another opinion for Ashcroft concerning the Stellar Wind program. This memorandum, dated October 11, 2002, reiterated the same basic analysis in Yoo?s November 2, 2001 memorandum the Stellar Wind ro ram.43 43 As in the November 2, 2001, memorandum, Yoo?s October 1 1, 2002, memorandum included the following caveat: ?Because of the highly sensitive nature of this subject and its level of classi?cation, this memorandum has not undergone the usual editing and review process for opinions that issue from our Of?ce . . n. mum?unr? 5. Yoo?s Communications with the White House (U) As the only Of?ce of Legal Counsel of?cial who had been read into the Stellar Wind program through early 2003, Yoo consulted directly with White House officials about the program during this period. Because we were unable to interview Yoo, we could not determine the exact nature and extent of these consultations. We were also unable to determine whether Ashcroft was fully aware of the advice Yoo was providing directly to the White House about the program. Gonzales told the OIG that Yoo was among those with whom the White House consulted to deveIOp advice for the President on the program, but he asserted that Yoo was not sought out to provide approval of the program for the Department. However, Gonzales told us that he did not know how Yoo came to be the primary Justice Department of?cial that the White House consulted during this period about the program. In fact, Jay Bybee, who served as the OLC Assistant Attorney General for most of this period and was Yoo?s supervisor, was never read into the Stellar Wind program. Bybee told the OIG that during his tenure as Assistant Attorney General he did not know that Yoo was working alone on a sensitive compartmented program and he had no knowledge of how Yoo APPROVED FOR PUBLIC RELEASE came to be selected for this responsibility. Bybee told us that he was ?surprised? and ?a little disappointed? to learn in media accounts that he was not privy to Yoo?s work on what Bybee had later learned to be a compartmented counterterrorism program involving warrantless electronic surveillance. Bybee said that it would not be unusual for a Deputy Assistant Attorney General such as Yoo to have direct contact with the White House for the purpose of rendering legal advice, but that the OLC Assistant Attorney General must be aware of all opinions that issue from the OLC. Bybee said that the Assistant Attorney General has an obligation to ?see the whole picture? and is the person in the office who knows the full range of issues that are being addressed by the OLC and who can assure that OLC opinions remain consistent. 6. Gonzales?s View of the Department?s Role in Authorizing the Stellar Wind Program The OIG asked Gonzales about how he, as White House Counsel, viewed the role of the Justice Department during the early phase of the Stellar Wind program. Gonzales stated that he and others at the White House tried to be very careful to understand what could be done legally, and they wanted to have ?constant communications with the Department? in the ?rst few months following the September 11, 2001, terrorist attacks. Gonzales also stated that it was the President, and not the Attorney General or the White House Counsel, who authorized the warrantless surveillance activity under the Stellar Wind program. However, Gonzales acknowledged that the President?s decision was based on advice from the Attorney General and White House Counsel, among others. ?SffS-I-f??i?Fj? The OIG also asked whether Gonzales had a personal belief about the justi?cation for having a single attorney Yoo speak on behalf of the Department regarding the legality of the program. Gonzales stated that it was up to the Attorney General to make that determination or calculation. Gonzales stated that he understood the Department?s position was that the program was legal and that Yoo would sit down with Attorney General Ashcroft to answer any legal questions when the Presidential Authorizations were presented to Ashcroft for his signature. Gonzales said he understood that the Yoo opinions represented the legal opinion of the Department. However, as noted previously, for the first year and a half of the program the Department read-ins included only Yoo, Ashcroft, and Baker. Gonzales also stated that it was Ashcroft?s decision as to how to satisfy his legal obligations as Attorney General. However, when the OIG asked whether Gonzales was aware if Ashcroft ever requested to have additional people read into Stellar Wind, Gonzales stated that he recalled Ashcroft wanted Deputy Attorney General Larry Thompson and his Chief of Staff, David Ayres, read in. Gonzales acknowledged that neither of?cial was APPROVED FOR PUBLIC RELEASE ever read into the program. Gonzales said that Ashcroft complained that it was ?inconvenient? not to have Thompson and Ayres read in, but Gonzales also stated that he never got the sense from Ashcroft that it affected the quality of the legal advice the Department provided to the White House. Gonzales stated that other than Ashcroft?s request that Thompson and Ayres be read in, he did not recall Ashcroft requesting to have additional Department of?cials read in.49 H. Implementation of the Stellar Wind Program In this section, we describe the initial implementation of the Stellar Wind program. We ?rst describe how the NSA acquired the communications data authorized for collection under the program. We also discuss the process the NSA used to analyze the information received from the Stellar Wind program and how this information was provided to the FBI. (U A. Implementation of Stellar Wind Our description of the implementation of the Stellar Wind program is based on SA and Justice Department documents we obtained during our review, as well as interviews of SA and Department personnel with knowledge of Stellar Wind?s technical basic overview of how the NSA obtained a the information authorized for collection under Stellar Wind. This information is also important for later sections of this report that describe signi?cant modi?cations to the Authorizations regarding the manner and scope of collection, the Department?s reassessment of the legal rationale supporting the Stellar Wind program during late 2003 and early 2004, and compliance issues that arose when the De artment dec'ded 49 Gonzales stated that Ashcroft, as the Attorney General, would be well-positioned to request the President to allow additional attorneys to be read into the program. Drawing on his own experience as Attorney General, Gonzales cited his request to the President in 2006 that the then head of the Of?ce of Professional Responsibility (CPR) and several attorneys within OPR be granted security clearances in order to conduct an inquiry into the professional conduct of Department lawyers with respect to the Stellar Wind program. Gonzales said he made his request both through White House Counsel Harriet Miers and directly to the President. However, the President initially declined the request, and the request was not granted until October 2002'. APPROVED FOR PUBLIC RELEASE WW As discussed pfeviouSIy, them?NS?A?" collected'threecat?e?g'ories of information under Stellar Wind that came to be commonly referred to as the three ?baskets.? Basket 1 referred to collection of the content of telephone and e?mail communications; basket 2 referred to collection of meta data associated with telephone communications; and basket 3 referred to collection of meta data associated with e-mail and other Internet communications. 51 We describe in Chapter Four changes made in March and 2004 der Presidential Authorization following a dispute between th and Justice De artment concernin the le alit of the Stellar Wind ro am. 51 Title 18 of the United States Code generally prohibits the interception and disclosure of wire, oral, or electronic communications, and provi erson en a 'n in such activit See 18 U.S.C. 2511. alties APPROVED FOR PUBLIC RELEASE The meta data collected under Stellar Wind (baskets 2 an 3 as we as the meta data associated with communications targeted for content collection under the program, was placed into an NSA database system called which according to NSA of?cials is a con?guration of databases and analytical tools. databases are segregated into ?realms? organized by the specific authority?allowing the particular data to be collected.53 The content data collected under the Stellar Wind program was placed in a separate NSA repository.54 WW 1. Basket 1 Telephone and E-Mail Content Collection WW- a. Telephone Communications (U) In this section we describe brie?y the technical means used by the NSA to access the international telephone system to accomplish the collection of international calls under the Stellar Wind program.55 53 NSA of?cials said the realms also establish a system of access control to ensure that only authorized users access certain data. 54 As discussed in Chapter Five of this report, the NSA created an additional realm in July 2004 when the government obtained FISA authority to collect e-mail meta data, and another realm in May 2006 when it obtained authority under FISA to collect telephony meta data. These realms were separate from the realms that contained information collected under Stellar 55 The interception of international telephone communications under Stellar Wind highlighted the dramatic change in telecommunications technology that had been taking place for nearly 20 years. In 1978, when FISA was enacted, telephone calls placed by and to individuals within the United States (domestic calls) were carried mostly on copper wires, while telephone calls placed to or from individuals outside the United States (international calls) generally were transmitted by satellites. FISA re?ected the state of technology then by de?ning the term ?electronic surveillance" to be the acquisition of the contents of certain wire and radio (satellite) communications. FISA stated that as to radio (Cont?d.) APPROVED FOR PUBLIC RELEASE communications speci?cally, and thus as to most international communications, the interception of calls constituted ?electronic surveillance? only if the acquisition intentionally targeted a particular known U.S. person in the United States, or if all participants to the communication were located in the United States. See 50 U.S.C. 1801(f)(l) and (3). Accordingly, government surveillance that targeted foreign persons outside the United States generally was not considered electronic surveillance under FISA, and the government was not required to obtain a FISA Court order authorizing the surveillance even if one of the parties to the communication was in the United States. APPROVED FOR PUBLIC RELEASE b. E-Mail Communications APPROVED FOR PUBLIC RELEASE However, under the October 4, 2001, Presidential Authorization, the SA for the ?rst time was authorized to interce international e?mails ori 'natin or terminatin inside the United States. APPROVED FOR PUBLIC RELEASE WEE-KW Basket 2 Telephony Meta Data Collection The NSA informed the FISA Court of this issue in the government?s December 2006 FISA application that sought to bring Stellar Wi d? discussed in Cha ter Five of this re ort . APPROVED FOR PUBLIC RELEASE I ?7 ?0 routing information that includes the originating and terminating telephone number of each call, and the date, time, and duration of each call. The call detail records do not include the substantive content of any communication or the name, address, or ?nancial information of a subscriber or customer. that is, call detail records pertaining to communications where at least one party was outside the United States, where no party was known to be a United States citizen, or where there was reasonable articulable suspicion to believe the communication related to international terrorism. As noted in Chapter One, the NSA interpreted this authority to also permit it to collect telephony and e-majl meta data in bulk so that it would have a database from which to acuire the tar APPROVED FOR PUBLIC RELEASE The NSA personnel also organized the data into a format that could be used by NSA responsible for analyzing the information under the Stellar Wind program. The data was archived into an NSA analytical database that contained exclusively Stellar Wind information and that was accessible only by Specially authorized NSA personnel read into the program. 53 While the magnitude of the bulk collection was enormous, the NSA did not retrieve or review most of this data because access was authorized only with respect to telephone communications that satisfied the Presidential Authorizations ?acquisition? standard. In fact, the NSA reported that by the end of 2006, .001% of the data collected had actually been retrieved from its database for analysis. ?3 We describe these techniques in part of this section. (U) APPROVED FOR PUBLIC RELEASE WWI-WOW 3. Basket 3 - E-Mail Meta Data Collection The meta data the NSA obtained from e?mail communications included the information that appeared on the ?from,? ?bcc,? and ?sent? lines of a standard e-majl. Thus, the NSA collected the e-mail address of the sender, the e-mail addresses of any recipients, and the information concerning the date and time when the e-mail was sent. The meta data collection did not include information from the ?subject? or ?re? lines of the e?mails or the body of the e?mails.54 Wit/+99% APPROVED FOR PUBLIC RELEASE B. NSA Process for Analyzing Information Collected Under Stellar Wind The NSA conducted two functionally distinct types of review of the massive amount of data it collected under the Stellar Wind program. First, the SA conducted procedures intended to ensure that it only reviewed or ?acquired? the information that was within the scope of the Presidential Authorizations. Second, the NSA conducted substantive analysis of the acquired information to determine whether it had intelligence value that should be disseminated to customer agencies such as the FBI and the CIA. The SA procedures to ensure that the acquisition and dissemination standards were satis?ed became more formalized over time. We describe below how the NSA handled the enormous volume of data it was collecting with the Stellar Wind program. 1. Basket 1: Content tasking, Analysis, and Dissemination Stellar Wind?s ?basket 1? content database contains telephone and e-mail communications of individuals. The NSA refers to the telephone numbers and e?mail addresses tasked for interception as ?selectors.? To task a selector under the Presidential Authorizations, the NSA was required to establish probable cause to believe the intercepted communications originated or terminated outside the United States and probable cause to believe a party to the communications was a group engaged in international terrorism, or activities in preparation therefor, or any agent of such a group.55 The NSA had two processes for tasking selectors under Stellar Wind. One process applied to tasking foreign selectors, or selectors believed to be APPROVED FOR PUBLIC RELEASE used by non-U.S. persons outside the United States. The other process applied to tasking domestic selectors, or selectors believed to be used by persons inside the United States or by US. persons abroad. A foreign selector could be tasked for collection under Stellar Wind based upon an NSA analyst?s determination, following some amount of documented research and analysis about the selector, that the terms of the Authorizations were satis?ed. The SA did not require any additional levels of approval before a foreign selector could be tasked!?5 A domestic selector could be tasked only after the NSA analyst obtained speci?c approvals. The rigor of the process to task a domestic selector evolved over time, but essentially it required an analyst to draft a formal tasking package that demonstrated, through analysis and documentation, that the selector satis?ed the terms of the Authorizations. This package was reviewed by a designated senior of?cial who could approve or reject the package, or request that additional information be provided. In emergency situations, the NSA could commence content interception on a selector withi of identifying a number or address that satis?ed the criteria in the Presidential Authorizations. In other cases, interception commenced With' for urgent or priority taskings and within a week for routine taskings.? The NSA conducted 15-, 30?, and 90?day reviews of tasked foreign and domestic selectors to assess Whether the interception should continue. The NSA stated that the selectors were ?dc-tasked? if the user was arrested, if probable cause could no longer be established, or if other targets took priority. The content intercepted under taskings was sent to the NSA and placed in a database accessible by NSA cleared into the Stellar Wind program. The were re5ponsible for revievving the communications and assessing whether a Stellar Wind re art should be generated for the FBI and the CIA. APPROVED FOR PUBLIC RELEASE 2. Baskets 2 and 3: Telephony and E-Mail Meta Data Queries, Analysis, and Dissemination The NSA received a massive amount of telephony and e-mail meta data (basket 2 and 3 information) that was stored in a realm accessible only by SA assigned to the Stellar Wind program. The ur use of the collection was to facilitate the identi?cation of connections among particular telephone numbers and e-mail addresses so histicated analytical techniques called ?contact chaining?i As described by the NSA in declarations ?led with the FISA Court, contact chaining is used to determine the contacts made by a particular telephone number or e-mail address (tier one contacts), as well as contacts made by subsequent contacts (tier two and tier three contacts). The SA uses computer algorithms to identify the ?rst two tiers of contacts an e-mail address makes and the ?rst three tiers of contacts a telephone number makes. According to the SA, multi?tiered contact analysis is particularly useful with telephony meta data because a telephone does not lend itself to simultaneous contact with lar numbers of individuals as e-rnajl 'th APPROVED FOR PUBLIC RELEASE As previously noted, the NSA interpreted the Presidential Authorizations to permit it to collect telephony and e-mail meta data in bulk.? The NSA ?queried? the databases that held this data to identify meta data for communications to or from a particular telephone or e-mail address (the ?selector,? also known as the ?seed number? or ?seed account?). NSA queried the database using a selector for which there was a reasonable articulable suspicion to believe that the number or account had been used for communications related to international terrorism.68 As with proposals to task selectors, an SA shift coordinator typically reviewed for approval proposals to query either the e-mail or telephony meta data bulk databases using particular selectors. If the shift coordinator agreed that the reasonable articulable suspicion standard was met, the selector was approved and the analyst was authorized to query the meta data bulk database to identify all of the other telephone numbers or e?mail addresses that had been in contact with the seed account. Each contact along the chain of contacts that originated with the selector was referred to as a ?hop,? meaning that a telephone call from the seed account to telephone number A was considered ?one hop out,? and a call from telephone number A to telephone number was considered ?two hops out? (relative to the seed account), and so on. NSA used specialized software to chain and analyze the contacts identi?ed by each query. The APPROVED FOR PUBLIC RELEASE SA told us that Stellar Wind were permitted to chain the results of queries Up to three hops out from the selector. The results of each query were analyzed to determine whether any of the contacts should be reported, or ?tipped,? to Stellar Wind customers primarily the FBI, CIA, and the National Counterterrorism Center. In the first months of the Stellar Wind program, the SA reported to the FBI most contacts identified between a U.S. telephone number or e-mail address and the selector used to query the meta data realm, as well as domestic contacts that were two and three hops out from a selector. As discussed in Chapter Six of this report, over time the NSA and FBI worked to improve the reporting process and the quality of the intelligence being disseminated under Stellar Wind. The domestic contacts from Specified numbers or e?mail addresses, called ?tippers,? were provided to the FBI by the NSA. These tippers were included in reports that contained two sections separated by a dashed line, commonly referred to as a ?tearline,? made to appear as a perforation extending across the width of a page. The purpose of the tearline was to separate the compartmented information above the tearline, which could identify the speci?c sources and methods used to obtain the information, from the non-compartmented information that the FBI could further disseminate to its ?eld of?ces. Only FBI personnel read into the Stellar Wind program could have access to the full Stellar Wind reports from NSA. The information that appeared above the tearline typically was classi?ed Top Secret/ SCI and identified Stellar Wind as the source of the intelligence. The information included ecific details as welr'asanypernnent comments by NSA intelligence The information that appeared below the tearline of a report generally was classi?ed Secret or Con?dential and did not identify Stellar Wind as the source of the intelligence. The text typically included some version of the following statement: The amoun statement varied. APPROVED FOR PUBLIC RELEASE and provided the date or dates of the contacts, or the period of time in which contact was made. During the first several months of the Stellar Wind program, nearly all reports based - - - - - aanal s's esi ated each of the t1 ers a It! El,i. lift-ii giliillfx As examples, the following Stellar Wind reports were among those disseminated to the FBI in November 2001. We have excerpted only the information below the tearline, which is often referred to simply as ?tearline information.? In addition, we did not provide the actual telephone numbers provided by the NSA to the FBI. APPROVED FOR PUBLIC RELEASE Early Participation in the Stellar Wind Program Stellar Wind was not an FBI program, nor was the FBI involved in the program?s creation. However, as the lead agency for counterterrorism in the United States, the FBI received much intelligence produced under Stellar Wind. In the following sections, we describe how the FBI became involved in the Stellar Wind program, the personnel resources allocated to handle Stellar Wind information, and the initial procedures the FBI established to receive, control, and disseminate the program information. 93W 59 In addition to the queries the NSA conducted on a case-by?case basis, the NSA also maintained a list of foreign and domestic telephone numbers and e-mail addresses for which, based on NSA assessments, there was a reasonable basis to believe were associated with international terrorism. These selectors, called ?alerts,? were queried against the incoming meta data automatically on a daily basis, and any contacts with a domestic telephone number or e-mail address were directed to NSA for review and possible reporting to the FBI. The NSA regularly updated the alert list by adding or removing selectors, depending on the available intelligence. As we discuss in Chapter Five in connection with the transition of Stellar Wind?s bulk meta data collection from presidential authority to FISA authority, the FISA Court found that the use of the alert list to query incoming telephone meta data did not comply with terms of the Court?s Order. WW APPROVED FOR PUBLIC RELEASE A. FBI Director First Informed of Stellar Wind Program Director Mueller told us that his earliest recollection of the Stellar Wind program was a meeting he attended at the White House with Attorney General Ashcroft, which occurred either after the decision had been made to move forward with the presidentially authorized program or shortly after the October 4, 2001, Authorization was issued. Mueller told us the meeting was ?more than a formal read?in? and that Director Hayden may have attended. Mueller said that at or around this time he also brie?y reviewed the October 4, 2001, Presidential Authorization, which he characterized as ?relatively complex.? Director Mueller said his impression at the time was that the terms of the Presidential Authorization might allow for collecting purely domestic telephone and e-mail communications. Mueller said he discussed the matter with Ashcroft and asked Whether OLC had issued an opinion on the program. Mueller said that he recalled being told that OLC might have opined orally on the program and Mueller said he suggested to Ashcroft that OLC issue a formal written opinion. Mueller told us that he did not think the NSA ever exercised authority under the Authorization to collect purely domestic communications. W) Mueller stated that based on the meeting he attended at the White House and his brief review of the October 4, 2001, Presidential Authorization, he understood the role in the Stellar Wind program was to be a ?recipient? of intelligence generated by the NSA, and to provide any technical support to the NSA as necessary to support the program. B. APPROVED FOR PUBLIC RELEASE APPROVED FOR PUBLIC RELEASE Mueller said he therefore decided to request an order from the APPROVED FOR PUBLIC RELEASE 459W Attorney General formally directing the FBI to support the NSA program. Mueller said that he also requested the order because he wanted a ?record as to our participation.? In response, on October 20, 2001, Attorney General Ashcroft sent a memorandum to Director Mueller stating: As part of the Nation?s self defense activities, the National Security Agency (NSA) is engaged in certain additional collection activities, the details of which you are aware. Those activities are legal and have been appropriately authorized, and the Federal Bureau of Investigation should cooperate with NSA as necessary for it to conduct those activities. According to Mueller, the combination of this memorandum from the Attorney General and the November 2, 2001, memorandum prepared by the Department?s Of?ce of Legal Counsel regarding the legality of Stellar Wind gave him comfort at that time with the participation in the program. Bowman also told us that the White House of?cials primarily responsible for Stellar Wind, who he identi?ed as the Vice President and Addington, were ?amateurs? when it came to intelligence work. Bowman stated that one of the potential consequences of severely limiting the number of individuals read into a program is that uncleared personnel who APPROVED FOR PUBLIC RELEASE occupy positions placing them in close proximity to program?related activities might construe certain actions as questionable or illegal and report that activity, thereby potentially compromising the activities. Bowman said that this is what occurred with Stellar Wind. For this reason and others, Bowman did not agree with the decision to so severely limit access to the program. C. FBI Begins to Receive and Disseminate Stellar Wind ?Tippers? In the immediate aftermath of the September 1 1 terrorist attacks, the FBI had created a task force of agents and to analyze the ?ood of telephone numbers it received from multiple sources, including agencies within the U.S. Intelligence Community, foreign intelligence services, and concerned citizens. The task force, called the Telephone Analysis Unit (TAU), was located at FBI Headquarters and consisted of approximately 50 FBI employees working on shift rotations 24 hours per day, 6 days per week. The operation was supervised by FBI supervisors working out of the Strategic Information and Operations Center. As described below, personnel assigned to this task force were among the ?rst at the FBI to handle Stellar Wind-derived information. 1. FBI Initiates- In October or November 2001 several TAU were assigned to what came to be called the?which was the effort to manage the Stellar Wind-derived information being received from the NSA. The information, referred to as Stellar Wind ?tippers,? consisted of telephone numbers and e-mail accounts derived from NSA meta data analysis, and sometimes content intercepted from particular tele hone and e-mail communications. The essential purpose of thei was to receive Stellar Wind tippers from the SA and disseminate the information to FBI ?eld of?ces for investigation in a manner that did not reveal the source of the information or the methods by which it was collected. Working alternating shifts in the Strategic Information and Operations Center, two FBI were primarily responsible for managing Stellar Wind tippers in the initial months of the program. These told the OIG that until December 2001, the Stellar Wind tippers APPROVED FOR PUBLIC RELEASE consisted nearly exclusively of telephone numbers. According to the the process for handling Stellar Wind tippers began when the NSA liaison co-located at FBI Headquarters provided one of the the information below the tearline from a Stellar Wind report containing one or more tippers. The analyst then queried FBI databases for any information about each tipper, such as whether the tipper appeared in any pending or closed FBI investi ations. The analyst also queried the tipper against the FBI?sidatabase, which is the central repository for telephone subscriber data acquired during the course of investigations. In addition, the analyst checked each tipper against public source databases for relevant information, such as the identity of a telephone number subscriber. After completing these database checks, the analyst drafted an Electronic Communication, or EC, from FBI Headquarters to the appropriate FBI ?eld of?ce. The EC described the tearline information about the tipper contained in the Stellar Wind report together with any additional information the analyst was able to locate. The? ECs disseminated to ?eld of?ces included several features concerning the nature of the information and how it could be used. First, the E03 advised the ?eld of?ces that the information being provided was ?derived from an established and reliable source? and that it was ?being addressed by the TAU as the 48141111) Second, the ECs included a caveat about the use of the information being provided, stating that the information ?is for lead purposes only and is intended solely for the background information of recipients in developing their own collateral leads. It cannot be used in af?davits, court proceedings, subpoenas, or for other legal or judicial purposes.? The FBI said this language was included in each EC to protect the source of the information and the methods by which it was collected. Third, the ECs provided an explanation about the qualitative rankings assigned to the ti the NSA assi ned each t1 era (Cont?d.) APPROVED FOR PUBLIC RELEASE Fourth, the ECs instructed the ?eld_offices how the tippers should be addressed. These instructions were provided as ?leads,? for which the FBI had three categories: Action, Discretionary, and For Information. An Action lead instructed a ?eld office to take a particular action in response to the EC. An Action lead was ?covered? when the ?eld of?ce took the speci?ed action or conducted appropriate investigation to address the information in the EC. A Discretionary lead allowed the ?eld office to take whatever action it deemed appropriate. A ?eld of?ce that receives a ?For Information? lead was not expected to take any speci?c action in response to the EC other than possibly route the communication to the of?ce personnel whose investigations or duties the information concerned. After the FBI analyst completed this process and drafted the EC, an FBI Supervisory Special Agent read into the Stellar Wind program reviewed the EC, in part to ensure that it did not reveal the source of the information or the method by which the information was obtained. Once approved, the analyst entered the EC into the Automated Case Management System and the receiving ?eld of?ces were noti?ed electronically to review the communication. Eac_ EC typically contained multiple tippers and therefore was distributed to multiple ?eld of?ces. The receiving field of?ces were responsible for handling the leads that concerned tippers falling in their respective geographic jurisdictions. Most of the ?leads that disseminated Stellar Wind tippers were designated Action leads. As noted, during this period the tippers were almost exclusively tele hone numbers. Accordin the ical lead instructed the ?eld of?ce to he lead also instructed the nel of?ce to report the investigative results to the Telephone Analysis Unit. The told us that the focus of their work in the first months after the September 11 attacks was to detect what many believed was an imminent second attack. During this period, nearly all of the Stellar Wind tippers the FBI received were disseminated to a ?eld of?ce for investigation as quickly as possible. In addition to tippers containing the content of intercepted telephone and e-mail communications (content tippers), in approximately December APPROVED FOR PUBLIC RELEASE 2001 the NSA began providing the FBI tippers derived from the e-mail meta data analysis (e?mail tippers). These e-mail tippers initially were routed to the same two who were managing the telephone tippers. The told us that the e?mail tippers were processed and disseminated in the same manner as the telephone tippers. Content tippers, which according to the were received very infrequently . during this early period, generally were also disseminated by EC to the appropriate ?eld of?ces, but little if any research regarding the information was conducted. The said they considered the content tippers particularly time?sensitive and for that reason occasionally transmitted the ECs directly to the ?eld of?ces or called the of?ces to advise that the information was being loaded into the Automated Case Management System. In 2002, responsibility for e-mail tippers was reassigned to the Electronic Communications Analysis Unit. _n February 2002, one of the two FBI left the? a fter being selected for a management position in a different analytical section within the Counterterrorism Division. The remaining analyst became sole re nsible for managing the Stellar Wind tippers under the?a situation that continued for approximately the next 12 months. The analyst told us that while her work hours during this period were ?ridiculous,? she did not feel there was any pressure to add to the project because ?the process was working In early 2002, FBI management instructed the lone analyst to conduct some of her work while physically located in the NSA Headquarters at Fort Meade, Maryland. This created an unusual arrangement for the analyst. The analyst continued to receive the daily Stellar Wind reports at FBI Headquarters, and she would then drive to the NSA with the reports to draft the E03 (the analyst had remote access to FBI databases from an NSA workstation). The analyst told us that interaction with NSA counterparts during these daily visits was minimal. After the E03 were drafted, the analyst returned to FBI Headquarters to obtain approval to disseminate the communications to the ?eld of?ces. The analyst?s impression was that FBI management created this unusual arrangement ?for show? and that its purpose was to establish an FBI ?presence? at the SA in connection with Stellar Wind. The analyst continued working on Stellar Wind matters until approximately February 2003, when a small team of FBI personnel were APPROVED FOR PUBLIC RELEASE assigned permanently to the NSA to manage the participation in the Stellar Wind program.74 2. FBI Field Offices? Response t? Leads 43141352)? According to the two FBI responsible for managing Stellar Wind information under the from approximately October 2001 to February 2003, some agents in FBI field of?ces grew frustrated with the information they were receiving under the program. Because the?ECS that disseminated the tippers to the ?eld of?ces assigned most of them as Action leads, this required that the leads be covered expeditiously. Under ordinary operating procedures, investigative leads for international terrorism matters are set by FBI Headquarters? International Terrorism Operations Section. In addition, the ECs assigning international terrorism leads typically identi?ed a Supervisory Special Agent within ITOS as the point-of-contact for any questions ?eld of?ces might have. Because the Stellar Wind program was so ti corn artmented, the leads sent during this early period by the? were not coordinated with ITOS, and the FBI Headquarters point-of?contact identi?ed in the ECs for any questions generally was one of the two According to one of the_ agents responsible for covering the Action leads complained that the lack of background information provided in the ECs about the tippers made it dif?cult to determine what investi ative ste 3 could or should be taken. 5 Consequently, the analyst 74 This co-location of FBI personnel at the NSA is discussed below. 75 To 0 en a. full investi ation, the FBI was required to? A preliminary inquiry require only a showin of See Attorne General The practice of issuing national security letters based on Stellar Wind-derived information is discussed in Chapter Six of this report. APPROVED FOR PUBLIC RELEASE received calls from agents requesting additional information about the source of the intelligence provided in the ROS to help the agents decide whether there was suf?cient predication to open an investigation on the telephone number or to issue a national security letter for subscriber information. The analyst stated that in response to these calls he could only reiterate to the agents that the information was provided by a reliable, sensitive source. The analyst said this situation produced a ?dichotomy? with the tippers. On the one hand, there was a demand in the International Terrorism Operations Section and ?eld offices for the telephone numbers because of their priority status and the prevailing concern that there would be a second terrorist attack; on the other hand, the limited and vague information contained in the?ECs caused some confusion and frustration among agents investigating the lead. emis? Agents also complained that many tippers were alread known to the FBI from past or pending investigations and that the E03 were roviding ?circular reporting.?75 However, according to one ganalyst, this generally did not occur. The analyst explained that an agent in the ?eld assigned to cover a lead on a telephone number did not know the SA was the source of the intelligence. Consequently, when the agent discovered that the number was identical to a number the agent was alread investi ating or was aware of, it appeared to the agent that an? simply had identi?ed a previously known number, conducted some additional research that the ?eld of?ce likely had already done, and disseminated the information back to the field as new reporting. Because the could not full ex lain the source of the intelligence, the agent did not realize the reporting in fact re?ected a new foreign connection to the telephone number. Another frustration voiced by agents to th? was that leads disseminated under the project that were designated ?Action leads? frequently did not yield significant investigative results, such as identi int active investi ation. 75 For example, circular reporting might have occurred when the FBI passed a Stellar Wind?derived telephone number or e-mail address to another agency within the US. Intelligence Community, that agency in turn requested the NSA to analyze the information, and the NSA subsequently disseminated the results back to the FBI in a Stellar Wind report. APPROVED FOR PUBLIC RELEASE NSA responded to this frustration by implementing the- rankings described earlier to provide the agents some guidance on prioritizing the tippers. In addition, the FBI told us that they became more adept at telep sis an at better at their game? by eliminating low value tipper from being disseminated to ?eld of?ces. According to FBI documents, the sought additional information from the NSA about tippers rankeg? before the FBI disseminated these tippers to the ?eld for investigation. 3. Efforts to Track Stellar Wind Ti ers and date Executive Management on Status of Leads Typically, FBI ECs originate from a speci?c investigative or administrative case file number. A ?le number is also required for an EC to be loaded into the Automated Case Management System and to enable the sending of?ce to assign a lead to the receiving of?ce. How? Head uarters did not initially open an investigative ?le for the E03 that disseminated Stellar Wind tippers to ?eld of?ces. One of the original assigned to the project told the OIG that he was familiar with a telephone analysis project in the drug program and that as a result he decided to issue the ?rst Stellar Wind-related EC from that drug investigative ?le. This confused some ?eld offices receiving the earliest ECs because counterterrorism leads were being disseminated under a drug investigation ?le number. Wam? In mid-October 2001, the FBI created a sub?le under the investigation of the September 1 1 terrorist attacks to disseminate Stellar Wormation. The FBI used this sub?le, referred to as the until September 2002, when a more r0 ram for disseminating Stellar Wind information, called was created.? WSW The _ana1ysts also told us that they created a database to attempt to track the status of leads disseminated to the ?eld offices. The database identi?ed each tipper by ?eld of?ce and the status of the lead that was assigned. One analyst stated that the response rate from 77 We describe this more formal program in Chapter Six of this report. (U) APPROVED FOR PUBLIC RELEASE 49W ?eld of?ces was uneven during these early months, and their supervisors instructed the at one oint to contact the head of each field of?ce to determine the status of the leads for which each of?ce was responsible. Th_ used the database they created to produce status reports for senior FBI of?cials who were read into the Stellar Wind program. These reports provided statistics regarding the quantity and ran inated tippers, as well as brief synopses of the status of the Wleads. The Stellar Wind program was viewed as an emergency response to the September 1 attacks and these status reports were intended to provide FBI executives information about how the program was contributing to the counterterrorism efforts. IV. Justice Department Of?ce of Intelligence Policy and Review?s (OIPR) and FISA Court?s Early Role in Stellar Wind When the President signed the ?rst Authorization for the program on October 4, 2001, only two Department of?cials outside the FBI were read into the Stellar Wind program: Attorney General John Ashcroft, who certi?ed the Authorization as to form and legality; and John You, the Deputy Assistant Attorney General in the Of?ce of Legal Counsel responsible for advising the Attorney General on the matter and for drafting the Department?s ?rst memorandum on the legality of the program.78 The Department?s Of?ce of Intelligence Policy and Review (OIPR), despite its expertise in FISA matters, was not asked to consider how FISA might affect the program?s legality or implementation, nor was OIPR asked to consider how the program might affect the Department?s FISA operations. In this section, we provide an overview of OIPR, how James Baker, the head of OIPR, inadvertently came to learn about Stellar Wind soon after it was initiated, and the subsequent role that OIPR played in the program?s operation. We also describe the circumstances surrounding the decision to have the ISA Court Presiding Judge and his successor read into the Stellar Wind program, and the Court?s response to the program. 73 Levin told us that he did not believe Yoo was read into Stellar Wind before the October 4, 2001, Presidential Authorization was signed, and we were not able to determine precisely when Yoo?s read-in occurred. However, Yoo?s November 2, 2001, memorandum analyzes the legality of the October 4, 2001, Authorization and the draft of the November 2, 2001, Authorization. Thus, it appears that Yoo was read into the program not later than November 2, 2001. ?S?f??FWS-l?eef-N-Fj- APPROVED FOR PUBLIC RELEASE A. Overview of OIPR (U) At the time of the implementation of the Stellar Wind program, OIPR was responsible for advising the Attorney General on matters relating to the national security activities of the United States.7g Created shortly after enactment of the Foreign Intelligence Surveillance Act of 1978, OIPR reviewed executive orders, directives, and procedures relating to the intelligence community, and approved certain intelligence-gathering activities. OIPR also provided formal and informal legal advice to the Attorney General and US. intelligence agencies regarding questions of law and procedure relating to US. intelligence activities. In addition, OIPR advised the Attorney General and agencies such as the CIA, FBI, and Defense and State Departments concerning questions of law relating to US. national security activities and the legality of domestic and overseas intelligence Operations. (U OIPR also represented the United States before the FISA Court. OIPR was responsible for preparing and presenting applications to the FISA Court for orders authorizing electronic surveillance and physical searches by US. intelligence agencies for foreign intelligence purposes in investigations involving espionage and international terrorism. When evidence obtained under FISA was proposed to be used in criminal proceedings, OIPR sought the necessary authorization from the Attorney General, and in coordination with the Criminal Division and US. Attorney?s Office prepared the motions and briefs required by the federal court whenever surveillance under FISA was challenged. (U) The head of OIPR was referred to as the Counsel for Intelligence Policy and was supported by two Deputy Counsel and a staff of attorneys, paralegals, and administrative professionals. James Baker served as the Counsel for OIPR from May 2001 to January 2007.30 (U) B. OIPR Counsel Learns of Stellar Wind Program H1639) Baker told us that while standing outside the Department one evening several weeks after the September 1 1 attacks, he was approached by an FBI colleague who said, ?There is something spooky going on,? that it appeared 79 In September 2006, the Justice Department moved OIPR into the newly created National Security Division (NSD). In April 2008, NSD modified structure and name. The new organization is called the Of?ce of Intelligence and includes operations, oversight, and litigation sections. For purposes of this report we use the term OIPR to re?ect the time period our review encompasses. (U) 30 Baker served as Acting Counsel for OIPR from May 2001 to January. 2002, and as Counsel from February 2002 until January 2007. Baker of?cially resigned from the Justice Department in October 2007. (U) APPROVED FOR PUBLIC RELEASE foreign-toudomestic collection was being conducted Without a FISA order, and that some FBI personnel ?were getting nervous.? The FBI colleague asked Baker whether he knew anything about the activity, and Baker responded that he did not. Baker said that while reviewing a FISA application several weeks after this conversation, a particular passage regarding international communications ?leapt out at? him. According to Baker, the passage contained ?strange, unattributed language? and information that was ?not attributed in the usual way.? Baker told the OIG that the information concerned connections between telephone numbers, but he could not recall if the information simply identi?ed a link between individuals or also included the content of communications. - Baker asked the OIPR attorney responsible for the application about the information in the passage, and the attorney responded that nobody at the FBI would disclose where the information had come from, only that it was part of a ?special collection.? Baker therefore contacted the FBI about the application. Unable to obtain any answers to his questions, Baker informed the FBI that he would not allow the application to be filed with the FISA Court. Baker said that, to the best of his recollection, he did not believe the application was filed with the Court. Soon thereafter, Baker spoke with Daniel Levin, who at that time was serving as both Counselor to the Attorney General and Chief of Staff to the FBI Director. Levin told Baker that approval from the White House was needed before he could tell Baker about the special collection. Levin told us that he successfully pressed the White House for Baker to be read into Stellar Wind. Baker stated that David Addington, counselor to Vice President Cheney, was the individual who approved his clearance into the program. According to NSA records, Baker was read into Stellar Wind in January 2002.31 He said his read in essentially consisted of Levin providing him a short brie?ng and a copy of Yoo?s November 2, 2001, memorandum regarding the legality of the program. Baker told us that his initial reaction was that the program, and Yoo?s memorandum, were ?awed legally. Baker said he did not consider himself a constitutional law scholar, but was 3? Baker told us that he initially was read into the program in December 2001 by Levin. Baker said he later received a more formal brie?ng on the program at the NSA, where he was allowed to read the Presidential Authorizations and discuss the program with SA attorneys. This formal brie?ng appears to be the event that the NSA considers Baker?s of?cial read-in, which according to NSA records occurred on January 11, 2002. We used this date for purposes of calculating the number of Justice Department employees read into the program. (UH-FEES) APPROVED FOR PUBLIC RELEASE nevertheless surprised that while Stellar Wind was in his view ?overriding a criminal statute? on the basis of the President?s power as Commander in Chief, Yoo?s memorandum did not even cite an important US. Supreme Court opinion on presidential authority during wartime, Youngstown Sheet Tube Co. Baker said he believed that it is important to exercise some ?humility? when dealing with national security matters because of the complexity and importance of the issues, and he therefore reserved ?nal judgment on the memorandum until he researched the legal issues further. Yet, Baker said his initial opinion that the memorandum was ?awed legally did not change over time. We asked Baker whether at the time he thought the collection authorized under Stellar Wind could have been accomplished under FISA. Baker said that his thinking on this issue has evolved over time, but that he believed that works in wartime.? He stated that although it is dif?cult to do, FISA can be made to work under the circumstances that existed following the September 1 1 attacks, but that it also was easy to ?make FISA not work? under these circumstances. WW Baker cited a lack of resources as the primary impediment to using the FISA process, rather than Stellar Wind, to collect foreign intelligence following the September 11 attacks. Baker said that he did not believe OIPR, as staffed in October 2001, had suf?cient resources to process the volume of telephone numbers the NSA was tasking for content collection under Stellar Wind at that time. However, Baker explained that in his View FISA is ?scalable? and that to some degree the statute?s utility is limited by the resources allocated to OIPR.82 Baker also observed that to bring Stellar Wind?s content and meta data collections fully under FISA authority would have required a different approach to the statute. Baker said that developing such an approach would have been possible only by convening a working group to examine constitutional and practical issues. Baker, one of only three people in the Justice Department read into Stellar Wind as of January 2002, said he did not have the ability or the authority to do this himself.83 Baker stated that his belief in this approach was informed by his own experience with and participation in a small, informal group composed of U.S. Intelligence Community of?cials that had worked periodically since shortly before the 32 Baker also observed that OIPR could have been staffed with detailees from the Department of Defense and other components within the Justice Department. (U) 53 Baker also said that he did not have the legal resources within OIPR to ?challenge? Yoo?s November 2, 2001, legal analysis of the Stellar Wind program, although he believed it was flawed. APPROVED FOR PUBLIC RELEASE September 1 terrorist attacks to develop solutions to various foreign intelligence collection issues.84 C. FISA Court is informed of Stellar Wind Baker told the DIG that sometime in the December 2001 to January 2002 time period he concluded, based on his awareness that information derived from Stellar Wind had been used to support at least one request for a FISA application, that the FISA Court also needed to be made aware of the Stellar Wind program. Baker said that the Department?s counterterrorism efforts rely on good relations with the FISA Court and that candor and transparency are critical components of that relationship. According to Baker, OIPR had a policy of full disclosure with the Court that he said served the Department well when problematic issues arose. Baker also attributed the Department?s record of success with FISA applications and the improved coordination between intelligence agents and prosecutors to the strong relationship that the Departrnent had built with the Court. Baker believed it would be detrimental to this relationship if the Court learned later that information from Stellar Wind was included in FISA applications without notice to the Court. Baker said he raised the issue of the FISA Court not being informed about Stellar Wind with Levin, who first responded by suggesting that the Attorney General order Baker not to disclose the program to the Court while the issue was being considered. Baker initially agreed to this approach and drafted a memorandum from Ashcroft to Baker to this effect. He said that Levin. edited the document and presented it to Ashcroft, who signed it. The memorandum, dated January 17, 2002, stated that Ashcroft understood FISA Court applications would include information obtained or derived from Stellar Wind, and that these applications would seek authorizations to conduct surveillance of targets already subject to surveillance under Stellar Wind. Ashcroft?s memorandum also stated that he was considering Baker?s recommendation that the Department brief the FISA Court on the program. The memorandum stated further: In the interim, I am directing you to ?le applications with the Foreign Intelligence Surveillance Court without informing the court of the existence of the Stellar Wind program or any aspect thereof. I am also directing you not to brief any other 3* This type of collaborative effort ultimately developed the legal theories used to transition Stellar Wind?s collection activities to FISA authority. However, as we discuss in Chapter Five, while the transition was successful with respect to bulk meta data collection, the legal theory to transition Stellar Wind?s content collection, while initially approved by one FISA Court judge, subsequently was rejected by a second judge. APPROVED FOR PUBLIC RELEASE individuals in the Department of Justice, including the FBI, regarding Stellar Wind without my prior authorization. Levin told us that he, as well as Ashcroft, soon came to agree with Baker that the FISA Court should be made aware of the program. Levin said he told Ashcroft during this time that Baker had done a ?remarkable job? building a relationship with the FISA Court that greatly benefited the Department?s counterintelligence and counterterrorism efforts. Levin said he advised Ashcroft, ?We should do what Baker thinks is right.? According to Levin, Ashcroft agreed. Levin said that he informed Gonzales and Addington at some point of Baker?s position that the FISA Court should be made aware of Stellar Wind, but said they initially rejected the idea of reading any judges into the program. Levin stated that he continued to press the issue without success. However, the issue came to a head on a weekend in January 2002 when Baker reviewed a second FISA application that contained the ?strange, unattributed language? Baker understood to indicate that the information referenced was obtained from the Stellar Wind program. This second FISA application sought emer enc a roval from the FISA Court to conduct electronic surveillance 0 Because this woul be the ?rst application seeking FISA authority to monitor this particular subject?s telephone communications, Baker recognized that the NSA had already engaged in some level of electronic surveillance in the United States of a domestic telephone number without a FISA order. Although Baker viewed the memorandum from Ashcroft directing him not to inform the FISA Court about Stellar Wind as ?cover? for him not to inform the FISA Court about Stellar Wind, he remained uncomfortable about ?ling an application that contained Stellar Wind information without informing the FISA Court. Baker therefore approached the Chief of the Justice Department?s Professional ReSponsibility Advisory Office (PRAO) to discuss his ethical reSponsibilities to the FISA Court under circumstances Where a FISA application contains certain information that is material to the Court?s decision, but Baker was not authorized to disclose the source of the APPROVED FOR PUBLIC RELEASE information.85 Baker stated that the PRAO Chief told him that he had an af?rmative duty of candor to the Court, and that this duty of candor was heightened due to the exparte nature of the FISA proceedings.86 Baker concurred with this guidance, which Baker felt also was compelled by his position as a federal of?cer and of?cer of the Court. Baker said he therefore concluded, and informed Levin, that he would not sign the pending application or present to it to the FISA Court, nor would he allow any OIPR attorney do so. According to Baker, Levin spoke to David Addington about the situation, but Addington nevertheless declared that the Court would not be read into the program. According to Baker, the White House, the Attorney General, and Levin then decided that Levin, rather than Baker, would sign the FISA application and present it to Judge Claude M. Hilton, the FISA Court judge responsible for hearing FISA matters that weekend.87 Baker told us that he notified Judge Hilton in advance that the application was being handled in this manner. Levin said he brought the application to Judge Hilton?s residence and explained that he, instead of the OIPR Counsel, was presenting the case because it involved a ?special classi?ed program.? Levin told us that Judge Hilton approved the application without asking any questions. According to Levin, when he later told Addington how the matter was resolved, and that he agreed with Baker?s position that the Court should be briefed into the program, Addington responded that Baker should be ?red for insuborclination for not signing the application. According to Baker, a consensus formed after this episode among the Attorney General, the FBI, and the White House that future FISA matters could not be handled in the same fashion, particularly in view of the anticipated increase in FISA applications resulting from the intelligence collected and disseminated under Stellar Wind!3g Baker said that the 35 The Professional Responsibility Advisory Of?ce provides advice to Department attorneys with respect to professional responsibility issues. (U) 35 Baker cited Rule 3.3 of the American Bar Association?s Model Rules of Professional Conduct as the speci?c rule implicated by the situation. That rule provides, in relevant part, that ?in an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.? Baker stated that he also consulted with two officials from the Of?ce of the Deputy Attorney General on the matter and that they provided the same advice as PRAO. (U) 37 Director Mueller and Attorney General Ashcroft already had signed the application. (U) 33 We asked Baker whether he thought the restrictions on the use of Stellar Wind-derived leads disseminated to field of?ces, as described above, were suf?cient to guard against including Stellar Wind information in FISA applications. Baker stated that his experience with FBI record-keeping practices did not give him a high degree of (Cont?d.) APPROVED FOR PUBLIC RELEASE decision was therefore made to brief the FISA Court?s Presiding Judge, Royce Lamberth.89 Judge Lamberth was read into Stellar Wind on January 31, 2002. The brie?ng was conducted in the Attorney General?s of?ce at the Department, and was attended by Ashcroft, Hayden, Mueller, Levin, Y00, and Baker. According to a memorandum of talking points prepared for the brie?ng, Ashcroft provided Judge Lamberth a brief summary of the program?s creation, explaining that the President had authorized a sensitive collection technique in response to the September 1 1 attacks in order to obtain foreign intelligence information necessary to protect the United States from future attacks and acts of international terrorism. Ashcroft said the NSA, at the instruction of the Secretary of Defense, implemented the collection, which was code named Stellar According to the talking points, Ashcroft also discussed the factors the President considered in determining that an ?extraordinary emergency exists? to support electronic surveillance without a warrant. The factors cited to Judge Lamberth paralleled those contained in the Presidential Authorizations, including ?the magnitude and probability of death from terrorist attacks, the need to detect and prevent such attacks with secrecy, the possible intrusion into the privacy of American citizens, the absence of a more narrowly?tailored means to obtain the information, and the reasonableness of such intrusion in light of the magnitude of the potential threat of such terrorist acts and the probability of their occurrence.? According to the talking points, Ashcroft stated that he determined, based upon the advice of the Of?ce of Legal Counsel, that the President?s actions were lawful under the Constitution. Levin told us that Ashcroft emphasized to Judge Lamberth that the FISA Court was not being asked to approve the program. Following Ashcroft?s summary, the brie?ng continued in three parts. First, Hayden described how the program worked operationally. Second, Yoo discussed legal aspects of the program. Third, Baker discussed a con?dence that such separation could be consistently maintained. In addition, Baker believed that the nature of FBI international terrorism investigations would make it difficult to track Stellar Wind-derived information. According the FBI OGC, Baker did not share with the FBI his concerns about whether its record-keeping practices would keep Stellar Wind information from being used in FISA applications. 39 The Presiding Judge for the FISA Court is appointed to a 7-year term by the Chief Justice of the Supreme Court of the United States. Judge Lamberth was appointed as Presiding Judge in 1995. (U) APPROVED FOR PUBLIC RELEASE proposal for handling FISA applications that contained program?derived information. Levin told us that when the brie?ng concluded, Lamberth acknowledged he was not being asked to approve the program and expressed his appreciation for being read in. According to Baker, Lamberth also remarked, ?Well, it all depends on whether you can get ?ve votes on the Supreme Court, but I?m comfortable with it.? For the next 4 months, until the end of his term in May 2002, Judge Lamberth was the only FISA Court judge read into Stellar Wind. D. OIPR Implements ?Scrubbing? Procedures for Stellar Wind Information in International Terrorism FISA Applications Following Judge Lamberth?s read?in to the Stellar Wind program, Baker implemented procedures in OIPR to address two scenarios in which Stellar Wind could affect international terrorism FISA applications.90 First, information obtained or derived from Stellar Wind might be included in a FISA application to establish probable cause that the target of the application is a foreign power or an agent of a foreign power and that the target is using or is about to use a particular ?facility? (a term used in FISA generally to refer to a speci?c telephone number or e-mail address) at which the electronic surveillance is directed. Second, a FISA application might target facilities that were also targeted by Stellar Wind, a situation referred to as ?dual coverage? because the targeted communications were collected under two separate authorities. Baker?s procedures, referred to as ?scrubbing? procedures, applied to initial FISA applications as well as to renewal applications seeking to continue existing coverage of targets (electronic surveillance under FISA generally is authorized for 90-day periods]. Judge Lamberth required that all applications that contained NSA information derived from Stellar Wind or that would produce dual coverage of a facility be ?led with him only. Baker told the OIG that the scrubbing process was his idea, with Judge Lamberth?s full concurrence, and that it had as its core principle obligation to inform the Court of all material facts contained in a FISA application. According to Baker, the scrubbing ?0 The procedures implemented by Baker only applied to international terrorism ISA applications, not to counterintelligence FISA applications. As Baker later explained in a letter to Judge Lamberth's successor as FISA Presiding Judge, this limitation was based on the understanding that the Stellar Wind program targeted only certain international terrorist communications ?and there is no reason to believe that the fruits of Stellar Wind collection would appear in a counterintelligence FISA application.? APPROVED FOR PUBLIC RELEASE procedures were a means of implementing his ethical duty of candor to the Court without disclosing the existence of the Stellar Wind program to uncleared attorneys and judges. Baker also said that Judge Lamberth wanted to be informed of applications that contained Stellar Wind information and of dual coverage situations, and that Judge Lamberth believed that the procedures devised by Baker were an appropriate and acceptable means of accomplishing this. According to Baker, the scrubbing process made him and Judge Lamberth ?comfortable the Court was being told what it needed to be told.?91 WSW We describe below the initial two scrubbing procedures implemented by Baker as well as the dif?culties they created for the FISA application process. 1. Initial Scrubbing Procedures Each international terrorism FISA application was ?scrubbed? for Stellar Wind information and dual coverage before it was ?led. However, Baker, as the only person in OIPR read into Stellar Wind, was unable to explain to his staff why the scrubbing was being conducted. With the cooperation, Baker initially scrubbed the applications without any assistance from OIPR staff. Baker said the time and effort he expended on this practice was not sustainable, and within weeks of beginning the scrubbing procedures Baker enlisted the assistance of Acting Deputy Counsel for Intelligence Operations, Peggy Skelly?Nolen. Skelly-Nolen stated to the OIG that Baker told her at that time that he ?needed to tell me something that he couldn?t tell me,? but was able to convey that he needed her and the of?ce?s assistance to process international terrorism FISA applications because the supporting declarations contained information that required special handling. The scrubbing process, or ?the program check? as it came to be known within OIPR, had two purposes. The ?rst purpose was to identify draft applications that contained Stellar Wind-derived information in support of probable cause to believe that the target of the application was a foreign power or an agent of a foreign power and was using or was about to use a particular facility. The second purpose was to identify applications that targeted facilities that were already actively targeted under the Stellar Wind program. 91 The FBI OGC told us that Baker never disclosed to it that the FISA Court was concerned about risks presented by the inclusion of Stellar Wind information in FISA applications, nor did Baker inform the FBI that OIPR implemented procedures to address these concerns. APPROVED FOR PUBLIC RELEASE To accomplish the ?rst purpose, OIPR attorneys were required to identify any information in applications attributed to the NSA, even if there was no suggestion the information was derived from a special program. The OIPR attorneys provided by e-mail the relevant excerpts from the applications to a designated OIPR legal assistant, who in turn compiled the information and transmitted it to the NSA by secure e-mail or facsimile. Upon receipt, the NSA conducted a check of the identified information against the Stellar Wind reports database, among others, to determine whether the information was derived or obtained from the program (as distinguished from being obtained by some other NSA signals collection activity). The NSA provided OIPR the results of its search by return e-mail or facsimile, writing next to each excerpt either ?yes? or ?no? to indicate whether the information was Stellar Wind-derived. Judge Lamberth did not require that Stellar Wind-derived information be removed from FISA applications, only that any such applications be filed with him exclusively and the Stellar Wind information identified to him orally.92 The second purpose of the scrub to identify dual collection applications followed similar steps. On approximately a weekly basis, an OIPR legal assistant requested that OIPR attorneys transmit to him all facilities targeted for electronic surveillance in applications scheduled to be ?led with the FISA Court that week. The legal assistant created a single list of all targeted telephone numbers and e-mail accounts and e-rnailed or faxed the information to the NSA. The NSA in turn checked the Stellar Wind database to determine whether any of the listed facilities were tasked for content collection under the program. The NSA provided OIPR the results of this check by return e-mail or facsimile, writing next to each facility either ?yes? or ?no? to indicate whether the facility was tasked under Stellar Wind. Baker proposed to Judge Larnberth that OIPR no hi 92 Baker said that 0111 international terrorism FISA applications presented to Judge Lamberth include ellar Wind information to support the application. (Cont?d.) APPROVED FOR PUBLIC RELEASE Baker proposed to include this descriptive phrase in applications that, if approved, would result in dual coverage. lications that included the descriptive phrase resented to Judge Lamberth, also would inform Judge Lamberth-directly that it was a ?Lamberth only? case to indicate it was connected to Stellar Wind. 2. Complications with Scrubbing Procedures Skelly?Nolen told us that no one in OIPR, including her at that time, was aware that the checks Baker was requiring the of?ce to make concerned a speci?c compartmented program. However, the scrubbing procedures generated questions from OIPR attorneys and FBI agents, particularly when Skelly?Nolen instructed an OIPR attorn to add to an a lication the descriptive phrase Skelly?Nolen told us that she was not able to provide a satisfactory response to the questions because she did not have the answers. ES-H-SI-HNE) Skelly-Nolen also stated that it was stressful to comply with the procedures, due in large part to the fact that the attorneys and agents responsible for the contents of the international terrorism applications were asked to follow certain procedures for ?lings but were not being provided an explanation for these measures. She said this stress was compounded by the concurrent anthrax scare and the prevailing belief that there would be another terrorist attack. Skelly-Nolen stated that OIPR staff was acting based on Baker's representations alone, and while Baker sought to assuage any concerns the OIPR attorneys had over these new procedures by APPROVED FOR PUBLIC RELEASE authorized to approve such applications the Attorney General and the Deputy Attorney General only Attorney General Ashcroft was read into that Kris was aware of the existence of a ?highly classi?ed information-collection program that has the unclassi?ed code name ?Stellar Wind?,? but that he was ?Wholly unaware of the nature and scope of the 95 As noted above, Gonzales also told the OIG that he never got the sense from Ashcroft that the situation affected the quality of the legal advice the Department provided APPROVED FOR PUBLIC RELEASE program.? Kris also stated in the memorandum that his request for a brie?ng on the program had been denied and that he was aware Deputy Attorney General Thompson also had not been briefed on the program.97 E. Judge Kollar-Kotelly Succeeds Judge Lamberth as FISA Court Presiding Judge (U) Judge Lamberth?s 7?year term on the FISA Court ended in May 2002. On May 19, 2002, Judge Colleen Kollar?Kotelly was appointed to the Court to replace Lamberth as the Presiding Judge. In connection with this appointment, Judge Kollar?Kotelly was read into the Stellar Wind program and provided an opportunity to examine the Department?s analysis of the program?s legality. Judge Kollar?Kotelly also spoke with Baker on numerous occasions about the scrubbing procedures he implemented to account for Stellar Wind information in international terrorism FISA applications and to identify applications that would result in dual coverage. 1. Judge Kollar-Kotelly Modifies OIPR Scrubbing Procedures Judge Kollar?Kotelly received her ?rst brie?ng on the Stellar Wind program in the Attorney General?s of?ce on May 17, 2002, 2 days prior to being formally appointed Presiding Judge for the FISA Court. Baker, who attended the brie?ng, told us that the presentation was similar to the brie?ng initially provided to Judge Lamberth. Judge Kollar?Kotelly had several questions concerning the scope of the President?s authority to conduct warrantiess surveillance, and the Department reaponded that same day with a letter signed by OLC Deputy Assistant Attorney General Yoo that outlined the legal basis for the activity. The letter essentially replicated Yoo?s November 2, 2001, memorandum regarding the legality of Stellar According to Baker, Judge Kollar-Kotelly met at the White House with Addington, Gonzales, and Y00 to read Yoo?s letter, but she was not permitted to retain a copy or take any notes. Judge Kollar-Kotelly later wrote in a letter to Baker that Yoo?s letter ?set out a broad overview of the legal authority for conducting [Stellar Wind], but did not analyze the speci?cs of the [Stellar Wind] program.? APPROVED FOR PUBLIC RELEASE WW Judge Kollar?Kotelly also requested an opportunity to review the Presidential Authorization initiating Stellar Wind. On August 12, 2002, she reviewed the October 4, 2001, Authorization. Baker said that he met with Judge Kollar?Kotelly on several occasions after her initial Stellar Wind brie?ng to discuss how OIPR had been handling Stellar Wind?s impact on FISA applications. Baker described for her the existing procedures to account for NSA information contained in FISA applications derived from Stellar Wind, and to identify applications that, if approved, would produce dual coverage of a facility. Judge Kollar-Kotelly also was interested in identifying whether a facility targeted in a FISA application had been tipped to the FBI as Stellar-Wind derived information. Baker told the OIG that at this time he did not believe the FBI and NSA had the ability to track Stellar Wind tips on a timely basis. Baker said he mistakenly believed that as tips passed from the NSA to FBI Headquarters, and from there to FBI ?eld of?ces for investigation, it would be exceedingly difficult to trace the speci?c source of the information in a sufficiently timely manner for inclusion in a FISA application. Baker provided his understanding to Judge Kollar-Kotelly, likening the Stellar Wind information in tips to the FBI as ?salt in soup? that is impossible to extract once added. Based on Baker?s representations, Judge Kollar-Kotelly did not require the Department to identify whether a facility targeted in a FISA application was ever provided to the FBI under Stellar Wind.93 Judge Kollar?Kotelly decided that the scrubbing procedures implemented under Judge Lamberth should continue, but she directed OIPR to di 'ptive phrase as a means of nourymg her that Iacmties targeted by the applications were also targeted under Stellar Wind. Baker said that while Judge Kollar?Kotelly understood that instances of dual coverage would occur, she did not want to appear to judicially sanction Stellar Wind coverage. Baker told us his impression was that Judge Kollar-Kotelly ?did not want to rule on the legality of the program? by appearing to ?authorize? the technique for collecting the same information the government was seeking to collect under FISA.99 93 Baker eventually learned that the FBI and the NSA in fact did have some ability to track Stellar Wind information. As discussed in Chapter Six, in March 2004 Judge Kollar-Kotelly added to the scrubbing process a check performed by the FBI to determine whether any telephone numbers or e-mail addresses contained in a FISA application had ever been provided to the FBI in a Stellar Wind report. 99 Judge Kollar?Kotelly later wrote about the dual coverage issue, in a January 12, 2005, letter to Baker that discussed the "Stellar Wind Program and Practice Before the (Cont?d.) APPROVED FOR PUBLIC RELEASE Baker said he believes Judge Kollar?Kotelly was trying to protect the FISA Court and did not want the legality of the Court?s orders called into que stion Judge Kollar?Kotelly also directed OIPR to excise from FISA applications any information obtained or derived from Stellar Wind. Baker told Judge Kollar?Kotelly that OIPR could implement this requirement using the scrubbing procedures already in place, and that where the FBI included NSA information in an application determined to be Stellar Wind-derived, OIPR would excise it. Judge Kollar?Kotelly also instructed Baker to alert her of any instances where an application?s basis for the requisite probable cause showing under FISA was weakened by excising the Stellar Wind information. In such cases, Judge Kollar-Kotelly would then decide whether to approve the application with the knowledge that additional relevant information had been excised. WW Even though Judge Kollar-Kotelly?s scrubbing process was intended to eliminate all Stellar Wind information from international terrorism FISA applications, she still required that scrubbed applications be ?led with her only. In time, Judge Kollar?Kotelly relaxed this requirement and permitted other judges on the Court to handle these applications, although only after ?rst being ?led with 2. OIPR implements Judge Kollar-Kotelly?s Scrubbing Procedure According to Baker and Skelly-Nolen, the mechanics within OIPR for determining whether an application contained Stellar Wind information or targeted a facility also targeted under Stellar Wind remained essentially unchanged after the transition from Judge Lamberth to Judge Kollar-Kotelly. However, the scrubbing process became more complex. For The letter memorialized the information Judge Kollar-Kotelly received from the government about the program and how she requested the government to proceed in preparing and presenting applications. On the subject of dual coverage, Judge Kollar?Kotelly wrote, ?Without opining on [Stellar Wind]-re1ated legal issues, I have sought to protect the proper functioning of the FISA process, under which separate court authorities are granted to conduct foreign intelligence collection against a set of targets that overlaps the set of [Stellar Wind] targets.? We discuss this letter in Chapter Four of this report. 100 APPROVED FOR PUBLIC RELEASE example, because only the Attorney General could sign the applications and Judge Kollar-Kotelly required that only she reCeive the applications (even after being scrubbed), Skelly-Nolan had to regularly visit the Attorney General?s and Presiding Judge?s residences with stacks of what Skelly?Nolen came to refer to as only? FISA applications. The situation was further complicated when Ashcroft was on overseas travel and his signature was needed for a scrubbed application ready to be ?led. When this occurred, the classi?cation of the application?s signature page was ?downgraded? and then sent to Ashcroft by secure fax. The actual application was not faxed; instead, Skelly-Nolan typically included a statement from her or Baker with the signature page indicating that the application was proper and complied with the requirements of the FISA statute. Skelly?Nolen observed that in these cases Ashcroft essentially relied on her and Baker?s assessments of the applications even though Skelly-Nolen was not read into Stellar Wind at this time. Scrubbed applications were handled similarly when Ashcroft was traveling domestically, although in those instances the applications could be provided along with the signature page if requested.101 Judge Kollar-Kotelly also required that hearings for the only? FISA applications and renewals be scheduled for late in the day or on the weekend, either in her courtroom chambers at the District Court for the District of Columbia or at her residence. According to Skelly-Nolen, Judge Kollar?Kotelly insisted on this practice so that the only? docket did not interfere with her regular court docket. From Skelly-Nolen?s persPective, this practice proved to be an ?enormous burden,? particularly in cases involving applications to continue FISA coverage on targets of emergency authorizations.102 Skelly?Nolan explained that these authorizations were, for ?no good Operations reason? that she was aware of, routinely approved by the Attorney General on Fridays, meaning that a FISA application had to be ?led with the Court within 72 hours by Monday to continue the emergency surveillance coverage. However, because Judge Kollar?Kotelly had a regular court docket on Mondays, she required that any scrubbed ISA application seeking authority to continue surveillance initiated under 10' Baker and Skelly?Nolen told the 016 that in their experience it was not unusual for an Attorney General or Deputy Attorney General to rely on representations that the FISA applications presented for signature satis?ed the statute's requirements, instead of reviewing the full contents of each application. [If] [Fever As previously described, under FISA during this time period, when the Attorney General reasonably determines that an emergency situation exists prior to obtaining a FISA order, the Attorney General may approve the use of electronic surveillance for a period of up to 72 hours without an order. (U) APPROVED FOR PUBLIC RELEASE emergency authorization be scheduled with her for Sunday. Skelly-Nolen stated that these cases would be in addition to the renewal applications that also had to be heard on Sundays so the authority for the surveillance in those cases did not expire and the coverage lapse. Baker identi?ed another issue that stemmed from Judge Kollar-Kotelly?s requirement that only she receive dual coverage applications. The problem arose when Judge Kollar-Kotelly was out of town and unavailable to hear a dual coverage application. Baker?s solution was either to ?y the application to the place Judge Kollar?Kotelly was located, or to contact the NSA and request that it ?dc?task? the facilities that the FISA application was targeting. In this way, the application could be presented to an alternative FISA Court judge because it no longer targeted facilities that were also targeted under Stellar Wind. WSW For example, Baker described a situation where the FBI was urgently interested in a particular individual whose telephone was currently tasked by the NSA under Stellar Wind. In this case, Baker instructed the NSA to de?task the telephone number so the FISA application could be presented to a judge other than Judge Kollar?Kotelly. To prevent any gap in coverage between the time the SA detasked the telephone number and the Court approved the application, surveillance was initiated under emergency authorization provision and then presented to a FISA Court judge within the requisite 72 hours. According to Baker, proceeding in this fashion ?made everyone comfortable,? including the NSA. Baker told us that this situation occurred a couple of times each year. According to Baker and Skelly?Nolan, these examples illustrate how having only the Attorney General and a single judge on the FISA Court read into Stellar Wind complicated the FISA process. Baker said that ?fairly early on? after being read into the program, Judge Kollar?Kotelly made several requests for other FISA Court judges to be read into the program. Baker told the OIG that these requests were generally made through him, orally and in writing, but was aware that on at least one occasion Judge Kollar-Kotelly made the request directly to Attorney General Ashcroft. Baker said that sometime prior to March 2004 he personally advised Ashcroft of Judge Kollar?Kotelly?s concerns, and that Ashcroft responded with words to the effect that the White House would not allow more judges to be read into Stellar Wind. In a January 12, 2005, letter to Baker, Judge Kollar?Kotelly summarized the situation, stating, have repeatedly asked that the other members of the FISC be given access to the same information that I have received regarding the [Stellar Wind] program. To date, the executive APPROVED FOR PUBLIC RELEASE branch has declined to do so, citing a need to maintain the strictest secrecy regarding [Stellar Wind].? WSW As a consequence of only Judge Kollar-Kotelly being read into Stellar Wind and her insistence that she alone handle applications scrubbed of Stellar Wind information or that involved tasking telephone numbers or e-mail addresses already tasked under Stellar Wind (dual coverage}, by November 2004 she was handling approximatel.percent of all FISA applications. Judge Kollar-Kotelly also tended to hear successive applications regarding the same targeted facilities. She discontinued this practice in November 2004 and permitted other judges to hear scrubbed applications. Judge KolIar?Kotelly later wrote that her decision was ?based on the operational systems? OIPR had in place to scrub applications and that she assured her colleagues ?that they could properly decide [the cases] based on the information in each application, without the additional information on which I have been briefed, but which, to date, the other judges have not received.? V. FBI Initiates Measures to Improve the Management of Stellar Wind Information Following the terrorist attacks of September 1 l, the FBI had reallocated personnel and resources to counterterrorism operations, and established the Telephone Analysis Unit (TAU) to exploit telephone communications data. We described above how a small team and from this unit was reassigned to ?i?lwhich was responsible for handling the Stellar Win repor prov1 NSA. In approximater May 2002, the TAU was renamed the Communications Analysis Unit (CAU) and became one of the units within the newly created Communications Exploitation Section (CXS). According to the ?rst Acting CAU Unit Chief, the vision for the unit was that it would su ort FBI i tions b- The Stellar Wind program was one 'source for obtaining this In this section, we describe changes the FBI implemented in late 2002 and early 2003 to manage the intelligence it received under Stellar Wind. These changes included attempts to improve coordination with the NSA, implement a more formal program to receive intelligence from the NSA and disseminate it to FBI field of?ces, educate the FBI ?eld of?ces about the value of the intelligence and FBI Headquarters? expectations concerning its use, and assign a small team of FBI personnel to work full-time at the NSA on Stellar Wind. APPROVED FOR PUBLIC RELEASE A. CAU Acting Unit Chief Evaluates FBI Response to Stellar Wind is?-NF-k When the ?rst CAU Unit Chief arrived at FBI Headquarters in September 2002, CXS was newly established and most of the Section?s 15-20 staff was there on temporary duty assignments. The CAU was staffed similarly at this time, but also contained some professional support employees from other divisions at FBI Headquarters. The CAU Unit Chief said that the mission was to support FBI international terrorism investigations al Qaeda investigations in particular by analyzing telephone calling activity and e-mail communications. He explained that prior to September 1 1, 2001, the FBI analyzed telephone numbers received ?eld of?ces or other sources by querying the numbers agataat tat the Fat central repository for telephone subscriber data. However, he said the database at that time was relatively small and had limited analytical capability. In the wake of the September 11 attacks, the FBI gained access to additional tools and began to utilize more sophisticated analytical techniques. Stellar Wind was one of those new tools. The CAU Unit Chief said that after he was read into Stellar Wind in late September 2002, it was clear to him based on conversations with the CXS Acting Section Chief that the FBI wanted to increase its participation in the Stellar Wind program. As a counterterrorism agent in the Chicago ?eld of?ce, the Unit Chief had some exposure to Stellar Wind in the form of leads. He told us that he had recalled thinking the leads were ?stupid? and ?not sensible.? He also said that he had been critical of the leads because they did not provide any context to the information, such as tated that the leads did not adequately explain the rankings associated with the telephone numbers, and the leads were not suf?ciently speci?c as to what action the ?eld of?ce an to e. In his view, the intelligence disseminated by the E03 was not ?actionable.? The Unit Chief told us that he could not ?gure out why FBI Headquarters was ?pushing this stuff out? after September 1 1, and that other agents in the ?eld shared his views.103 As previously described, former NSA Director Hayden told us that immediate] followin the Se tember 11 terrorist attacks the NSA modi?ed the a enc ?s collection and that this resulted in a ?ood of telephone numbers to the FBI. Thus, it is possible that (Cont?d.) APPROVED FOR PUBLIC RELEASE After becoming the acting Unit Chief for the CAU and reviewing how the FBI was handling the Stellar he learned that there was no unit that oversaw theMmW-l and no guidance for how the SA information should be processed by FBI He also said that the process in place essentially re?typing into ECs the tearline information contained in Stellar Wind reports - merely ?regurgitated? information that, by itself, was not actionable. He was not critical of the FBI responsible for drafting the ECs, who simply performed this task as directed. Rather, he believed the process suffered from a lack of leadership. He described the involvement in Stellar Wind up to this point as ?happenstance? and said the FBI did not have ?a real good handle on it.? He said that the de?ciencies he identi?ed were attributable in part to the significant resource challenges the FBI encountered after September 11, but he nevertheless considered the effort to respond to the Stellar Wind information as ?half-baked.? He said he therefore set about implementing changes within the CAU to better organize this effort, which he believed would improve the quality of the intelligence disseminated to FBI field of?ces. B. FBI Increases Cooperation with NSA and Initiates- Project to Manage Stellar Wind Information The CAU Unit Chief said that the ?rst step he took to improve the involvement in Stellar Wind was to detail to the NSA one of temporary duty special agents. He instructed the agent to form a working group at the NSA to identify any problems and evaluate the quality of the information provided in the Stellar Wind reports, as well as the information that the FBI reported back to the NSA about tips.104 The CAU Unit Chief said he took this step so that the NSA gained a ?case agent?s perspective? on the type of information useful to FBI ?eld of?ces, and also to explain to the NSA that the information that could be disseminated about the tippers should include ?context? and ?clarity? suf?cient to justify the FBI conducting an inquiry under the investigative guidelines.105 He said he did not believe that the interest in obscuring the ?sources and methods? associated with the information had to compromise the quality of the information provided to the FBI. He also said that the NSA needed to FBI agents? early frustration with leads that provided telephone numbers was attributable in part to the leads generated under this NSA collection activity. The CAU Unit Chief recalled that the NSA had expressed frustration that the FBI never provided the NSA any responses to the tipped information. 105 FBI international terrorism investigations at this time were governed by the Attorney General Guidelines for FBI Foreign Intelligence Collection and Foreign Counterintelligence Investigations. (U) APPROVED FOR PUBLIC RELEASE understand how the FBI investigated intelligence that it received, and that FBI agents did not have to know the speci?c sources and methods used to acquire information in order to effectively investigate the information. The CAU Unit Chief said that this liaison effort occurred over a couple of weeks, with the temporary duty agent driving to the NSA daily. According to the Unit Chief, the agent explained to SA personnel what the FBI was permitted to do with certain types of information and that the NSA would receive more feedback from the FBI if the quality of the disseminable information about the tippers improved. The Unit Chief told us that following this exchange the NSA improved the Stellar Wind reports by providing better information in both the compartmented and tearline portions of the reports. In addition, the CAU Unit Chief told us that he took steps to increase cooperation within the FBI between CAU, which was part of an analytical section that supported counterterrorism investigations, and FBI Headquarters? International Terrorism Operations Section, which was responsible for overseeing FBI counterterrorism investigations. The Unit Chief said that based on his experience in the ?eld working counterterrorism cases, he believed it was important that the CAU consult with agents in the operational section about leads the CAU proposed to set in the ECs. While he was con?dent the CAU could identify logical investigative steps, he thought they should nevertheless coordinate with the operational personnel to see if there was agreement and to determine whether a lead potentially could affect any ongoing operations that the CAU was not aware of. He also noted that his CAU Unit Chief successors discontinued this practice, a decision he disagreed with and complained about to the Section Chief for CXS because he believed the program risked losing a measure of effectiveness and ef?ciency as a consequence. Another step the CAU Unit Chief took relating to the management of Stellar Wind information was to open an administrative ?le, or ?control to serve as the repository for all communications that the CAU sent to the field of?ces containing Stellar Wind information, as well as all communications the CAU received from ?eld of?ces reporting the results of the investigative activi taken in res onse to assigned leads.106 As explained previously, the communications had been APPROVED FOR PUBLIC RELEASE disseminated from a sub?le associated with the international terrorism investigation of the September 11 attacks. In the EC requesting that a control ?le be opened for Stellar Wind information, the CAU Unit Chief wrote that ?a dedicated control ?le for this project will better serve the speci?c needs of the special project and will add an additional layer of security for the source.? A control ?le for Stellar Wind information was 0 ened on September 30, 2002, and given the designation From that point forward, all ECs th d'sseminated Stellar Wind tips were sent in connection with the ?ontrol ?le.107 The ECs were classi?ed at the Secret level and, similar to the 1303, included a vague explanation about the source of the information and a caveat concerning its use.103 10" The Unit Chief told us that Director Mueller held a telephone conference call in October 2002 with the heads of all FBI ?eld of?ces and advised the Headquarters was working to improve the process for dissemina?nm information to the ?eld of?ces by adding both context and clarity to the communications. Director Mueller expressed his expectation that the of?ces would act on the information. According to the Unit Chief, Director Mueller essentially was trying to sell the program and ensure the ?tool? was being used. Director Mueller told the OIG that he did not recall having speci?c discussions with the heads of FBI ?eld of?ces about Stellar Wind information. APPROVED FOR PUBLIC RELEASE Several months later, in January 2003, the CAU Unit Chief sent an EC to all FBI ?eld of?ces seeking ?to clarify the mission of . . . as well as to describe this unit?s distinct role in the participation in the global war on terror.? The EC emphasized capabilities in examining telephone calling activity and its liaison function with members of the US. Intelligence Community that are ?in a unique position to provide potentially actionable intelligence to the lained that many of the leads from the CAU were sent under the ?le. On the subject of investigative responses to leads, the EC stated: C. FBI Assigns CAU Personnel to NSA on Full-Time Basis The CAU Unit Chief also assigned a team of FBI personnel to the NSA on a full-time basis to manage Stellar Wind information. The Unit Chief told us that shortly before his temporary duty assignment to FBI Headquarters was set to expire, he and the CXS Acting Section Chief briefed Director Mueller?s assistant and later Director Mueller about the role they recommended that the FBI take in the Stellar Wind program. The CAU Unit Chief recommended co-locating at the NSA approximately four FBI agents and with remote access to FBI information systems. He likened the suggestion to a ?task force environment? that would introduce the investigative skills at the beginning of the analysis of Stellar Wind information. Director Mueller approved the recommendation and told the CAU Unit Chief to implement it. For the APPROVED FOR PUBLIC RELEASE WW The Memorandum of Understanding between the FBI an NSA to facilitate the co-location was ?nalized in December 2002, and in February 2003 a CAU team began its co?location at the NSA to manage the involvement in Stellar Wind. This co-location continues today. VI. DIG Analysis (U) In analyzing the Department?s and the involvement in the expanded signals intelligence collection activity after the September 11 attacks, it is important to recognize the exceptional circumstances that existed at the time. Many Department and FBI of?cials emphasized to us the sense of crisis and alarm during this period, and noted the widely shared concern within the Intelligence Community that a second wave of attacks was imminent. The Stellar Wind program was conceived and implemented amid these challenging circumstances. This chapter described the role of Justice Department and FBI of?cials in the inception and early implementation of the Stellar Wind program, including the Department?s initial reviews of the legality of the program. We believe that a signi?cant problem during this early phase of the Stellar Wind program was the lack of a sufficient number of Justice Department attorneys read into the program to conduct an analysis of the program?s legality. The White House and according to Gonzales, the President determined who within the Department was permitted access to the program. We believe that Attorney General Ashcroft, who met frequently with the President on national security matters, was in a position to personally advocate for the read-in of an adequate number of attorneys necessary for the Department to perform a thorough and factually aCCUrate legal analysis of the program. We know that Ashcroft?s request that his chief of staff David Ayres and Deputy Attorney General Larry Thompson be read into the program was not granted. But because Ashcroft did not agree to be interviewed, we were unable to determine from him whether he sought additional Department read-ins to assist in the legal analysis of the program, how hard he may have pressed for these additional resources, or whether he behaved he was receiving adequate legal advice about the program from You alone. As described in this chapter, John Yoo was the only Department attorney read in to work on the legal analysis supporting the program from APPROVED FOR PUBLIC RELEASE WW September 2001 through May 2003.109 As described in Chapter Four, Department of?cials who succeeded Yoo concluded that the analysis Yoo produced was signi?cantly ?awed and found the legal basis for aspects of the program to be lacking. We believe that reading in only one Department attorney to analyze the legality of the program impeded the Department?s ability to conduct a thorough and factually accurate legal analysis, and undermined the Department?s early role in the program. In Chapter Four we discuss the harm that resulted in late 2003 and early 2004 from the Department?s highly restricted access to the program. W) We also described in this chapter how the harm attributable to the Justice Department?s insuf?cient early involvement in the program extended beyond conducting an analysis of the program?s legality. The Justice Department?s relationship with the FISA Court was put at risk by not having of?cials from OIPR and members of the FISA Court read into Stellar Wind when program?derived information started being disseminated as investigative leads to FBI ?eld of?ces. In our View, it was foreseeable that Stellar Wind?derived information would be included in FISA applications.11? OIPR Counsel Baker told us that the Department?s counterterrorism and counterintelligence efforts rely on good relations with the FISA Court and that candor and transparency are critical components of the relationship. Baker attributed the Department?s record of success with FISA applications and the improved coordination between intelligence agents and prosecutors to the strong relationship that the Department built with the Court. Baker believed, and we agree, that it would have been detrimental to the relationship if the Court learned that information from Stellar Wind was 109 As was the case with Ashcroft, because You did not agree to be interviewed we were unable to learn from him what if any efforts he made either within the Department or at the White House to advocate for additional attorneys including his supervisor in OLC - to be read into the program to assist in his legal analysis. However, in his book ?War by Other Means," You wrote of his experience working on the Stellar Wind program: While meeting with Ashcroft alone re?ected the importance of the issues, it also placed me in a dif?cult position. I could not discuss certain matters with my DOJ superiors, or rely on the collective resources of OLC, which usually assigned several attorneys to work on an Opinion. Operational security demanded by the war on terrorism changed some of OLC's standard operating procedures. War by Other Means at 101. ?0 The restrictions the FBI impOSed on the use of program-derived information that it could be used for "lead purposes? only and not for "legal or judicial purposes" (such as af?davits) reflected a good faith and reasonable effort. However, such restrictions could not ensure that program?derived information would not appear in FISA applications. indeed, this eventuality led to Baker's discovery of the program. APPROVED FOR PUBLIC RELEASE included in FISA applications without the Court being told so in advance. 433W Yet we are not aware of any effort or consideration on the part of Attorney General Ashcroft or officials at the White House to account for Stellar Wind?s impact on Justice Department FISA operations by reading in any OIPR of?cials or members of the FISA Court. In fact, as we described in this chapter, Baker was read into Stellar Wind only after hearing from an FBI colleague that ?there is something spooky going on? with the collection of communications and subsequently reviewing a FISA application that contained ?strange, unattributed? language that the FBI would not explain to him. Baker was read in when Daniel Levin, then Counselor to Ashcroft and Chief of Staff to Mueller, pressed White House officials for the clearance. Moreover, White House of?cials initially rejected the idea of reading in members of the FISA Court, and then took no action even as Levin, who together with Ashcroft agreed with Baker that the Court needed to be informed about the program, continued to press the issue. It was not until Levin was required to sign and ?le a FISA application that Baker refused to handle because it contained Stellar Wind-derived information that the decision was made to read in a single judge (Presiding Judge Lamberth, followed by Presiding Judge Kollar?Kotelly). The decisions to read in Baker and a member of the FISA Court, which in our view were unnecessarily delayed, were important steps in preserving the relationship the Justice Department had built with the Court. However, we believe that once Stellar Wind?s impact on the Justice Department?s FISA operations became evident, limiting read?ins to a single OIPR of?cial and a single FISA Court judge was unduly restrictive and short?sighted. This chapter described how the scrubbing procedures imposed by the FISA Court and implemented by OIPR to account for Stellar Wind-derived information created concerns among some OIPR attorneys about the unexplained changes being made to their FISA applications. The scrubbing procedures also substantially distorted the assignment of cases to FISA Court judges and by Novemb O4 resulted in Judge Kollar-Kotelly handling approximatel percent of all FISA applications. In our view, once Stellar Wind began to affect the functioning of the FISA process, OIPR and the FISA Court effectively became part of the program?s operations and the number of OIPR staff and FISA Court judges read into Stellar Wind to manage the impact should haVe increased. This chapter also described the handling of Stellar Wind-derived information in the initial weeks and months of the program. The chief objective during this period was to expeditiously disseminate APPROVED FOR PUBLIC RELEASE program-derived information to FBI ?eld of?ces for investigation while protecting the source of the information and the method by which it was obtained. We concluded that the procedures to meet th' rally were reasonable. The FBI personnel assigned to th Edeveloped a straightforward process for receiving Stellar Wind reports, reproducing the information in a non-compartmented, Secret-level format, and disseminating the information in Electronic Communications or ECs to the appropriate ?eld of?ces for investigation. The- ECs disseminated to FBI ?eld of?ces also placed appropriate restrictions on how the information could be used, instructing ?eld of?ces that the information was ?for lead purposes only? and could not be used for any legal or judicial purpose. FBI personnel at the ?eld of?ces we visited as part of our review generally were familiar with the restrictions. However, we found that the exceptionally compartmented nature of Stellar Wind created de?ciencies in the initial process for handling program-derived information and understandably frustrated agents assigned to dle leads. The limited resources allocated to th hampered the ability to enhance Stellar Wind information with relevant FBI or public source information before dis eminatin leads to ?eld of?ces for investigation. More signi?cantly, mehwas prohibited from disclosing information that agents traditionally were accustomed to receiving with leads that required investigation. The ECs consequently suffered from vagueness about the source of the information being provided and lacked factual details about the individuals allegedly involved with international terrorism and with whom the domestic numbers being disseminated possibly were in contact. fS?ffNF-3 We found that the FBI sought over time to address these de?ciencies and improve the effectiveness of its participation in the Stellar Wind program. In April 2002, transmitting Stellar Wind?derived leads to FBI ?eld of?ces became a priority of the Communications Exploitation Section, and within it, the Communications Analysis Unit (CAU). The ?rst chief of the CAU assigned a team of FBI personnel to work full-time at the NSA on Stellar Wind and to initiate the roject to manage the participation in Stellar Wind. As we discuss in this chapter and in Chapter Six, these measures enhanced the knowledge about Stellar Wind operations and gave the NSA better insight about how FBI ?eld of?ces investigated Stellar Wind information, which improved Stellar Wind reports and the leads that were disseminated to FBI field of?ces. m0.? mmrm>mm APPROVED FOR PUBLIC RELEASE CHAPTER FOUR LEGAL REASSESSMENT or STELLAR WIND (MAY 2003 THROUGH MAY 2004) {iPSH-st?Ff By early 2003, while the operation of the Stellar Wind program had evolved, particularly with respect to the means by which intelligence from the program was provided to the FBI, the program still remained legally premised on John Yoo?s November 2001 and October 2002 Of?ce of Legal Counsel memoranda. This chapter describes the pivotal period between May 2003 and May 2004 during which Yoo?s departure from the Of?ce of Legal Counsel and the arrival of new of?cials at the Justice Department resulted in a comprehensive reassessment of the Stellar Wind program?s legal basis. This legal reassessment led to a contentious dispute between the Justice Department and the White House on the legality of important aspects of the program. This dispute eventually resulted in modi?cations to the operation of the program, and also contributed to the decision to place at least one aspect of the program under FISA authority. WW Section I of this chapter discusses how personnel changes within the Of?ce of Legal Counsel led to a re?examination of Yoo?s legal analysis, culminating in a Justice Department legal position against continuing to certify the program and the resulting dispute with the White House. Section II describes how, faced with the prospect that the Attorney General, Deputy Attorney General, FBI Director, and other senior Department of?cials would resign in March 2004 if the program continued unchanged, the White House agreed to modify the program to conform it to the Department?s revised legal analysis. I. Justice Department Reassesses Legality of Stellar Wind Program A. Overview of Of?ce of Legal Counsel (U) One of the responsibilities of the Assistant Attorney General for the Office of Legal Counsel (OLC) is to assist the Attorney General in his function as legal advisor to the President and all Executive Branch agencies. OLC drafts legal opinions for the Attorney General and also provides its own opinions in response to requests from the Counsel to the President, various agencies of the Executive Branch, and of?ces within the Department of Justice. OLC often deals with complex legal issues on which two or more agencies are in disagreement, and provides legal advice to the Executive Branch on constitutional questions, including the review of pending APPROVED FOR PUBLIC RELEASE legislation for constitutionality. Executive Orders proposed to be issued by the President are reviewed by OLC as to form and legality, as are other matters that require the President?s formal approval. OLC also reviews proposed orders by the Attorney General and all regulations requiring the Attorney General?s approval. (U) B. Personnel Changes within Of?ce of Legal Counsel (U) John Yoo advised Attorney General Ashcroft and White House of?cials on the Stellar Wind program from the program?s inception in October 2001 through Yoo?s resignation from the Department in May 2003. Upon Yoo?s departure, Patrick Philbin told the OIG that he was selected by the White House to assume Yoo's role as adviser to the Attorney General concerning the program.111 With this personnel change came a fresh review of the legal underpinnings of the Stellar Wind program. We describe in the following sections the circumstances leading to what one of?cial described as ?the great rethink" of the program. 1. Yoo?s Role in the Program (October 2001 through May 2003) (U) On September 1 1, 2001, and through November 2001, Daniel was the Acting Assistant Attorney General for OLC. was not read into the Stellar Wind program. Jay Bybee served as Assistant Attorney General for OLC from November 2001 until March 2003, when he became a judge on the U.S. Court of Appeals for the Ninth Circuit.112 Bybee also was never read into the Stellar Wind program. As discussed in Chapter Three, John Yoo, a Deputy Assistant Attorney General in OLC, had sole responsibility within that of?ce and within the Department of Justice for developing the legal analysis relating to the Stellar Wind program until May 2003.113 Bybee told us he was not aware at the time that Yoo was drafting legal opinions in connection with a compartmented program. Bybee told us that the OLC normally adheres to a tradition called the ?two Deputy rule,? so that OLC opinions are reviewed by two OLC Deputy Assistant Attorneys General before going to the OLC Assistant Attorney General for approval. Bybee said that the purpose of this rule is to ensure On June I, 2003, Philbin became an Associate Deputy Attorney General. However, he told us that he still technically remained a Deputy Assistant Attorney General in OLC and was thus ?dual-batted.? (U) ?1 Bybee was nominated by President Bush to serve on the Ninth Circuit in May 2002 but was not con?rmed by the Senate until March 2003. (U) ?3 Yoo?s major opinions about electronic surveillance and Stellar Wind are summarized in Chapter Three. APPROVED FOR PUBLIC RELEASE the quality of the legal research and soundness of the legal analysis. In addition, Bybee stressed that the Assistant Attorney General must be aware of all opinions that issue from the OLC. Bybee said that the OLC Assistant Attorney General has an obligation to ?see the whole picture" and is the only person in the of?ce who knows the full range of issues that are being addressed by the OLC. Bybee also said the Assistant Attorney General is the only official in that of?ce who can assure that OLC opinions remain consistent. Bybee stated that the Assistant Attorney General, as a Senate?con?rmed official, has ultimate accountability for the work of the of?ce. Bybee noted that, by contrast, the Deputy Assistant Attorney General position, though political, does not require Senate con?rmation. (U) Bybee told the OIG that it would not be unusual for a Deputy Assistant Attorney General such as Yoo to have direct contact with the White House for the purpose of rendering legal advice. Bybee stated that it is ?not clear? whether or to what extent the Attorney General needs to be kept informed of such contacts. However, Bybee said that the Attorney General may appropriately decide to ask a single OLC attorney to work on a particular project, but that it is ?not the White House?s call? to make such assignments because the White House may not be aware of what advice the OLC is providing to other Executive Branch agencies. Bybee told us that during his tenure as Assistant Attorney General he did not know that Yoo was working alone on a sensitive compartmented program, and he had no knowledge of how Yoo came to be selected for this responsibility. (U) Philbin said he believed that White House Counsel Gonzales and Vice President Cheney?s Counsel David Addington had selected Yoo to draft the Opinions on Stellar Wind and other national security programs, and that Yoo was the ?obvious choice? to assume this role because of his expertise in war powers issues and the authority of the 14 Gonzales told the OIG he understood that Yoo had asked others within OLC to help out with speci?c legal issues during this period without telling them what they were being asked to assist with, and Yoo then aggregated that work into his memoranda concerning electronic surveillance and the Stellar Wind program. Gonzales also stated that Yoo did not consult with any experts outside the Department in drafting his memoranda.115 11" As discussed in Chapter Three, Yoo had been given responsibility for working on national security issues prior to the inception of the Stellar Wind program. (U) ?5 When Gonzales testi?ed before the Senate Judiciary Committee on February 6, 2006, he stated that although he was not at the Department when the program commenced, suSpect in fact I?m fairly sure - that there were not discussions with (Cont?d.) APPROVED FOR PUBLIC RELEASE As noted above, neither Yoo nor Ashcroft agreed to be interviewed for the investigation. Other witnesses gave the OIG various accounts of Yoo?s interactions with Attorney General Ashcroft and with the White House concerning the program. Gonzales told us that Yoo regularly advised Ashcroft on the legal aspects of the program so that Ashcroft could continue to certify it as to form and legality. Gonzales also said that it was incumbent on Ashcroft as Attorney General to satisfy the Department?s legal obligations regarding the program. Gonzales told us he thus understood Yoo?s opinions as representing the opinions of the Department. However, Gonzales acknowledged that White House of?cials consulted with Yoo and sought his advice without going through the Attorney General or Bybee Yoo?s supervisor although Gonzales also said they did not seek Department approval from Yoo concerning the Stellar Wind program. Other witnesses described their concerns regarding Yoo?s direct contacts with the White House, and with Addington and Gonzales in particular. Philbin said he told Addington that Yoo?s direct access to Addington on legal matters was ?not a good way to run things,? referring to the lack of oversight of an OLC Deputy Assistant Attorney General by a supervisor. Philbin stated that there was nothing wrong with assigning a project to a subordinate, but not without the head of the office knowing what the subordinate was doing. (U) Jack Goldsmith told us that when he became the Assistant Attorney General for the Of?ce of Legal Counsel in October 2003, he learned that Yoo?s contacts with the White House had had the effect of cutting the Attorney General ?out of the loop,? a practice Goldsmith said he resolved not to continue with any OLC attorney. (U) Goldsmith also told us the White House had wanted Yoo to replace Bybee as the Assistant Attorney General for the Of?ce of Legal Counsel following Bybee?s con?rmation as a judge on the Ninth Circuit, but that Ashcroft blocked the move. Yoo resigned from the Department in May 2003.116 (U) outside expertise at the Department, although I don?t know for sure." An NSA Associate General Counsel for Operations told the that Yoo visited the NSA for a briefing about the program at some point after he had drafted his November 2, 2001, legal memorandum. In addition to working on the legal analysis for the Stellar Wind program while at the JUStice Department, Yoo also worked on at least one other project involving a Top Secret compartmented detainee interrogation program. In contrast to the Stellar Wind program, the OIG determined that at least three OLC attorneys, including Bybee and Philbin, worked on the program?s legal analysis with Yoo or participated by supervising his work. In addition, attorneys from the Department's Criminal Division and from other (Cont?d.| APPROVED FOR PUBLIC RELEASE 2. Philbin Replaces Yoo (U) Patrick Philbin joined the Department as a Deputy Assistant Attorney General in the Of?ce of Legal Counsel on September 4, 2001.117 He was read into the Stellar Wind program in late May 2003, just before Yoo left the Department. Philbin said that he, accompanied by Yoo, was read into the program by Addington in Addington?s of?ce in the 01d Executive Of?ce Building. Philbin told us that Addington provided an overview of the program, describing the two basic categories of collection as ?content? and ?meta data.? Philbin said that later, based on his legal analysis of the Stellar Wind program, he developed the ?three baskets? terminology to describe more speci?cally the three types of collections. Philbin said he was told by Addington he was being read into the program because You was leaving the Department and another attorney was needed to review the threat assessments that supported the Presidential Authorizations and to then advise the Attorney General on recertifying the program as to form and legality.118 Philbin said he also was told that he and the Attorney General were the only Justice Department of?cials who were supposed to be involved in this ?review and recerti?cation? process. Philbin told us he was aware that OIPR Counsel James Baker had also been read into the program; however, Philbin stated that Addington told him he should not discuss the program with Baker and should only advise the Attorney General on the program. Philbin said he believed Addington did not want Philbin speaking with Baker about the program because Addington had always taken the position that the program should be kept as compartmented as possible. 119 agencies were regularly consulted by Yen in his drafting of the legal memoranda on the legality of this program. You told the Department?s Of?ce of Professional Responsibility that Attorney General Ashcroft determined who was allowed to work on the memoranda for the detainee interrogation program. Transcript of Interview of John You by Office of Professional Responsibility, June 7, 2005, at 12. ?7 Prior to joining the Department Philbin had been at a private law firm and had specialized in telecommunications law. (U) ?5 When asked whether he had any knowledge of the program prior to being read in, Philbin said he did not, but he recalled that in the fall of 2001 he had a discussion with Yoo about some general electronic surveillance issues. Yoo told Philbin that Yoo was told to work alone on this particular matter. You did not state who had given him this instruction. ?9 Baker told us he was not similarly advised to avoid discussions with Philbin about the program, nor was he aware that Addington had instructed Philbin not to discuss the program with him. In fact, according to Baker, Philbin initiated several conversations with Baker about the operational details of the program as Baker understood them at the time. (U) APPROVED FOR PUBLIC RELEASE The day after being read into the program, Philbin moved from the Office of Legal Counsel to the Of?ce of the Deputy Attorney General to become an Associate Deputy Attorney General, although technically he still retained his OLC Deputy Assistant Attorney General position and was thus ?dual-hatted.? Philbin took over the ?national security portfolio? from David Kris, who had recently left the Department. Philbin stated he was ?somewhat concerned? that he would be advising the Attorney General on the Stellar Wind program even though Deputy Attorney General Larry Thompson, Philbin?s supervisor, was not read into the program. However, Philbin said he anticipated at the outset that his work on the program would not require a lot of his time. 3. Initial Concerns with Yoo?s Analysis (U) Philbin said that after he was read into the Stellar Wind program he believed he needed to do ?due diligence? to learn about the program. He said he reviewed Yoo?s legal opinions about the program and realized that Yoo had omitted from his analysis any reference to the FISA provision allowing the interception of electronic communications without a warrant for a period of 15 days following a congressional declaration of war. See 50 U.S.C. 181 1. Philbin also stated that Yoo?s OLC Opinions were premised on the assumption that FISA did not expressly apply to wartime operations, an assumption that from Philbin?s perspective rendered the opinions ?problematic.? Philbin said that this gap in Yoo?s analysis was his ?rst indication that the legal reasoning underpinning the Presidential Authorizations would have to be revisited. WSW Philbin said the second indication of problems with Yoo?s analysis came when he read a summ document Yoo had re ared concernin the APPROVED FOR PUBLIC RELEASE Se ond and more si i?cantl Philbi state that '30 See Presidential Authorization of April 22, 2003 at para. 4(b] 85 The April 22, 2003, Authorization was the only Authorization personally approved as to form and legality by Yoo. He approved the Authorization on April 18, 2003, ?ve days before the date 1.2-.le APPROVED FOR PUBLIC RELEASE WSW Philbin said the errors in the Yoo?s talking points document represented ?a signi?cant step toward the realization that the Whole legal analysis was screwed up.? Philbin told us he felt he could not rely on the existing analysis and that he needed to ?build from the ground up.? 452W 4. Problems with? In addition to the ?aws Philbin identi?ed in Yoo?s le al anal sis Philbin told us he rew increasin 1 concerned tha '13 Philbin told us he visited the NSA three times during the summer of 2003 in an effort to learn how the program operated. Several of?cials we interviewed told us that Philbin understood the program well, in part due to his background in telecommunications law. APPROVED FOR PUBLIC RELEASE Philbin said that he and later Goldsmith recognized that the existence of the Stellar Wind ro ram would be disclosed at some point in the future. APPROVED FOR PUBLIC RELEASE NEW 5. Other Collection Concerns Philbin told us that during the summer of 2003 he identi?ed other concerns about the Stellar Wind program. First, said he began to believe that the existing OLC memoranda failed to describe the Philbin said he also had concerns over WW) 6. Decision to Draft New OLC Memorandum (U) In August 2003, brought his concerns about the OLC legal Opinions to Attorney General Ashcroft. Philbin told Ashcroft that there were problems with the legal analysis supporting the program but probably not with the conclusions reached. Philbin told us that he believed that since the conclusions would not change there would be no need to ?pull the plug? on the analytically problematic aspects of the program. Philbin said he 123 APPROVED FOR PUBLIC RELEASE therefore advised that Ashcroft could continue to certify the program ?as to form and However, Philbin also recommended that a new OLC memorandum be drafted. According to Philbin, Ashcroft concurred, told him to continue working on his analysis, and asked to be kept updated on Philbin?s progress. After meeting with Ashcroft to discuss the issue, Philbin said he began to write a new memorandum on the legality of the entire Stellar Wind program. 125 C. Reassessment of Legal Rationale for the Program 1. Goldsmith Becomes OLC Assistant Attorney General (U) Jack Goldsmith told the OIG that he was recommended for the Assistant Attorney General position by Yoo after You was not selected for the position. Goldsmith stated that during his interview for the position, Attorney General Ashcroft and Ashcroft?s Chief of Staff David Ayres emphasized that the OLC Assistant Attorney General must keep the Attorney General informed of matters the Of?ce of Legal Counsel was working on and stressed the importance of keeping the Attorney General ?in the loop.? Goldsmith told the OIG that he believed Ashcroft and Ayres raised these issues as a result of their experience with Yoo. (U) Goldsmith was selected for the position, con?rmed by the Senate, and on October 6, 2003, was sworn in as the OLC Assistant Attorney General. (U) According to Goldsmith, he was told by Department colleagues that the procedures OLC historically followed in drafting its opinions were changing and that the Attorney General was being circumvented in the new 195 he was not certain at the time that Ashcroft fully understood the because the subject matter was ?dif?cult.? Philbin also stated management? purposes, he needed to ?rst make sure that he too fully understood the issues before raising his concerns to others. He said he did not just want to be ?a naysayer" identifying problems, but also wanted to propose solutions. He said that the program would be examined by Congress one day and that the legal analysis had to be ?carefully done to protect the President.? Philbin said he therefore believed that the OLC legal memoranda had to be rewritten to achieve that objective. Philbin told us he also was concerned that the program not appear like a ?rogue operation," but rather as a responsible approach to collecting intelligence with adequate controls and oversight. In this regard, Philbin emphasized that it would be important to demonstrate that the program had appropriate restrictions based on the law, and that the restrictions guarded against abuses. APPROVED FOR PUBLIC RELEASE process. Goldsmith said that OLC Principal Deputy Assistant Attorney General Ed Whelan also told him that procedures, built on custom and practice but still ?hugely important,? had ?broken down? prior to Goldsmith?s arrival as the Assistant Attorney General. (U) Goldsmith told us that he also became aware that Ashcroft sensed? there was a White House-Of?ce of Legal Counsel relationship over which Ashcroft did not have full control. Goldsmith said that when he became the OLC Assistant Attorney General he immediately moved to ?bring things back to normalcy? by, for example, making sure all OLC memoranda were provided to client agencies for review and input and that all memoranda were reviewed by two OLC deputies, as was the traditional OLC practice.?26 (U) With regard to the Stellar Wind program, Philbin told us he had always intended to request that Goldsmith be read into the program after Goldsmith was con?rmed by the Senate. Philbin said that he went to the White House and asked Addington (and possibly Gonzales) to have Goldsmith read into the program. Philbin stated that Addington told him that he would have been with not allowing Goldsmith to be read in, and that Philbin would have to justify the request before Addington would convey the request to the President. Philbin told us he explained to Addington that he would need to have the head of OLC sign off on the new memorandum he was writing or the memorandum would lack credibility. W999i On November 17, 2003, Goldsmith was read into the Stellar Wind program by Addington in Addington?s of?ee.127 Philbin was also present. On the way to the read~in, Philbin told Goldsmith to ?prepare for your mind to be blown.? Goldsmith told us that the read-in took approximately 5 minutes, and when it was over he remarked to Philbin, ?That doesn't seem 125 Goldsmith?s view of how the OLC should operate was later echoed by a subsequent head of the of?ce, Steven Bradbury. In a May 16, 2005, internal OLC guidance memorandum entitled ?Best Practices for OLC Opinions,? Bradbury emphasized that OLC legal memoranda should reflect the positions and expertise of interested agencies, and he also stressed the importance of a rigorous peer review process within the of?ce before ?nalizing OLC memoranda. (U) 137 After Ashcroft, Yoo, Baker, and Philbin, Goldsmith was only the ?fth non-FBI Justice Department of?cial to be read into the Stellar Wind program since the program?s inception over 2 years earlier. Philbin stated that prior to Goldsmith?s arrival at the Department and subsequent read-in to the program, he had no one to help him draft a new legal memorandum and no one other than Ashcroft with whom to discuss the legal issues. He told the 01G that it was extremely beneficial to have another attorney working with him on the project. Philbin also told us he did not press the White House to read in additional attorneys during the summer 2003 period before Goldsmith arrived at the Department. APPROVED FOR PUBLIC RELEASE so bad.? Goldsmith said that 3 weeks later, after studying the matter, he would'come to a ?different conclusion.? 2. NSA Denied Access to OLC Memoranda One of the first Stellar Wind meetings Goldsmith and Philbin attended after Goldsmith?s read-in was held in the DOJ Command Center with Addington, NSA Deputy General Counsel Vito Potenza, and NSA Inspector General Joel Brenner. Goldsmith stated that the SA Inspector General requested a copy of the OLC legal memoranda regarding the program as part of an audit the NSA Of?ce of the Inspector General wanted to conduct of the program. According to Goldsmith, Addington ?bit [the Inspector General?s] head off,? and made it clear that the memoranda would not be provided to the NSA OIG. Goldsmith said he learned either at that meeting or shortly thereafter that Of?ce of General Counsel also had been denied access to the OLC memoranda. Bob Deitz, the NSA General Counsel during this period, told the NSA OIG that he was never permitted to see Yoo?s legal memoranda. Dietz stated that he called Addington several weeks after the first Presidential Authorization was signed and asked if he could see a copy of Yoo?s memorandum (likely the November 2, 2001, memorandum), and that Addington responded Dietz said that Addington would only read ?a paragraph or two? from the memorandum to him over a classi?ed telephone line. Deitz stated that he never advised Yoo on his legal analysis, although he did advise NSA Director Hayden that he thought the program was legal and within the President?s authority. The OIG also interviewed- the Associate General Counsel for Operations during Yoo?s and Goldsmith?s tenure in OLC. told us that he was not troubled by the fact that other senior NSA of?cials had been denied access to Yoo?s legal memoranda, and that he felt no need to review them. - stated that his primary concern with respect to the le ality of the program was whether ?Justice was comfortable with it.? also stated that he assumed that the Justice Department would ?nd the program legal by resolving the tension between FISA and the President?s inherent Commander-in-Chief authority based upon the doctrine of constitutional avoidance. Goldsmith told us he found it ?shocking? that the NSA was not provided access to Yoo?s legal memoranda. He stated that the decision to withhold the memoranda was one of the ?most astonishing things? he learned about how the program was handled, and that he could not ?draw a good inference? from that fact. Goldsmith emphasized that under the Stellar Wind program the NSA had been asked to do something contrary to its ordinary practices, and yet was not allowed to review the legal APPROVED FOR PUBLIC RELEASE justi?cations for being permitted to do it. Goldsmith told us he believed that the NSA might have identi?ed problems or mistakes in Yoo?s analysis early in the program had it been given access to his memoranda. told us that upon becoming the Assistant Attorney General he intended to reverse the practice of keeping OLC memoranda closely held, and that he also decided he would seek client agency expertise in drafting these documents. (U) 3. Goldsmith Joins Effort to Reassess Legal Basis for the Program In the two or three weeks following his read?in to the Stellar Wind program, Goldsmith reviewed several documents to educate himself about the program. These included the memorandum that Philbin had already begun to draft (which included a description of how the program worked operationally), Yoo?s memoranda, and older OLC memoranda concerning surveillance activities. After Goldsmith familiarized himself with the program, Goldsmith provided Philbin with additional research and helped supplement Philbin?s draft memorandum. W) Goldsmith stated that Philbin had done an ?amazingly heroic job? in reviewing the program. Goldsmith believed ?ninety-nine out of a hundred? attorneys in Philbin?s position, having been asked simply to opine as to form and legality, would have just relied on the previous Of?ce of Legal Counsel memoranda. Goldsmith said that Philbin, however, was not convinced by those memoranda and therefore did not rely on them. In addition, Goldsmith noted that Philbin sought to understand the program as it was actually implemented at the NSA before advising the Attorney General on its legalitY- WSW (Cont?d.) APPROVED FOR PUBLIC RELEASE 4. AUMF Bee Legal Rationale Supportin of the Stellar Wind Goldsmith concluded the interception 0 did not comply with requirement to obtain judicial authorization, and did not fall Within any of the exceptions to this requirement. Goldsmith later wrote in his legal memorandum reassessing the legality of the program that a proper analysis ?30 See Goldsmith?s May (3, 2004, memorandum entit ed ?Renew or Legality or the Stellar Wind Program? (Goldsmith Memorandum, May 6, 2004). This memorandum is discussed in Section II below. APPROVED FOR PUBLIC RELEASE of Stellar Wind ?must not consider FISA in isolation? but rather must consider whether Congress, by authorizing the use of military force against al Qaeda, also ?effectively exempts? such surveillance from FISA. Goldsmith concluded that this reading of the AUMF was correct because the AUMF authorized the President to use ?all necessary and appropriate force? against the enemy that attacked the United States on September 1 1, 2001, and to ?prevent any future acts of international terrorism against the United States? by such enemy authority that has long been recognized to include the use of signals intelligence as a military tool. Alternatively, Goldsmith reasoned that even if the AUMF did not exempt surveillance under the program from the restrictions imposed by FISA, the question was suf?ciently ambiguous to warrant the application of the doctrine of constitutional avoidance, and therefore should be construed not to prohibit the activity.131 ?31 In his Ma 6 2004 memorandum, Goldsmith concluded that if th- arguments under the AUMF did not create as to trigger the doctrine of constitutional avoidance, FISA as applied would represent an unconstitutional infringement on the President?s exclusive authority as Commander-in?Chief in wartime to protect the nation from attack. APPROVED FOR PUBLIC RELEASE 5. Office of Legal Counsel Raises its Reassessment of the Stellar Wind Program [December 2003 through January 2004)133 ?s?sH?ms) During late 2003, Goldsmith and Philbin continued their analysis of the legal bases for the Stellar Wind program. During this time Philbin and Goldsmith were the only two Department of?cials in a position to brief the Attorney General and White House of?cials on the status of their legal reassessment and its potential rami?cations for the operation of the program. 134 With the existing Presidential Authorization set to expire on December 1 1, 2003, Goldsmith and Philbin met with Ashcroft on December 8, 2003, to advise him on recertifying the program as to form and legality. Goldsmith wrote in notes that he maintained during this time period that at the meeting he and Philbin ?note[d] problems gently? to Ashcroft. Goldsmith told us Ashcroft was ?extraordinarily supportive? of his and Philbin?s efforts to reassess the legality of the program and made clear his view that the program had to be on solid legal footing. Goldsmith advised Ashcroft that, despite concerns about the program, Ashcroft should certify the December 9, 2003, Authorization. Goldsmith '33 The narrative in this and the following sections is based on our 1nterv1ews Philbin, Goldsmith, Comey, Mueller, Gonzales, and others. We also relied on Philbin?s and Goldsmith's contemporaneous notes, Goldsmith?s chronology of events that he wrote during this period, Mueller?s Program Log documenting events in March 2004, and Attorney General Ashcroft?s FBI security detail log of events that occurred While Ashcroft was hospitalized from March 4 through March 14, 2004, among other documents. (U) '34 James Comey became the Deputy Attorney General on December 9, 2003, but was not read into the program until over 2 months later. (U) APPROVED FOR PUBLIC RELEASE later advised Ashcroft to certify the January 14, 2004, Authorization as well. Goldsmith told us he made these recommendations to Ashcroft with the caveat that although he believed Yoo?s memoranda to be ?awed, Goldsmith had not yet concluded that the program itself was illegal. Based on Goldsmith?s advice, Ashcroft certi?ed the December 9, 2003, and anuaty 14, 2004, Authorizations. In December 2003 Philbin and Goldsmith informed Ashcroft that they believed Comey, who was sworn in as the new Deputy Attorney General in December 2003, also needed to be read into the program. Philbin said he justified this request by noting that he would be traveling abroad for 2 weeks later that month on an unrelated Justice Department matter.?5 (U) In December 2003, Goldsmith and Philbin met with Addington and Gonzales at the White House to express their growing concerns about the legal underpinnings for program. Goldsmith said he told them that OLC was not sure the program could survive in its current form. According to Goldsmith?s notes, these discussions did not contemplate an interruption of the program, although the White House represented that it would ?agree to pull the plug" if the problems with the program were found to be suf?ciently serious. Goldsmith told us that the White House typically through Addington told him ?several times? that it would halt the program if the Department found that it could not be legally supported. Philbin told us he recalled that Add' Goldsmith to continue analyzing the program and that if serious problems were found, the program would be shut down. On December 18, 2003, while Philbin was abroad, Goldsmith met again with Addington and Gonzales. Goldsmith wrote in his chronology that this time he conveyed with ?more force? his ?serious doubts and the need to get more help to resolve the issue [as soon as possible].? Goldsmith also told Addington and Gonzales that he needed more resources to continue examining the legality of the program. They responded to this request by telling Goldsmith that Philbin should devote all of his time to the project. '35 As discussed in Chapter Three, Comey?s predecessor as Deputy Attorney General, Larry Thompson, was never read into the Stellar Wind program despite Ashcroft?s request to the White House on behalf of both Thompson and Ashcroft's chief of staff. (UH-Fave} APPROVED FOR PUBLIC RELEASE Goldsmith told us that he asked to have Comey read into the program. According to Goldsmith?s notes, Addington and Gonzales ?bristle[d]? at that suggestion. Goldsmith told us he made the request for Comey to be read in because he believed he would need the Deputy Attorney General?s assistance to help ?make the case? to the White House that the program was legally ?awed. Goldsmith also stated that he wanted Corney read in because, as the Deputy Attorney General, Comey was Philbin?s direct supervisor. We asked Gonzales when he ?rst became aware that the Department had concerns about the legality of the Stellar Wind program. Gonzales stated that he remembered that sometime after Philbin and Goldsmith joined the Department, they decided to conduct a programmatic review of the legal basis for Stellar Wind. Gonzales said that he welcomed this review, and that it was always important to reassess the value of or need for the program, as well as its legality. Gonzales told us he thought that Goldsmith and Philbin?s review arose out of concerns about Yoo?s November 2, 2001, opinion and that their review was limited to that document. Gonzales said that Goldsmith periodically told him that Philbin was reviewing the program and that some questions had been raised or that some changes to the program might be needed as a result of their reassessment. Gonzales said that he told Goldsmith to let him know how the review was progressing. Gonzales also told us he did not recall getting into any speci?c discussions with Goldsmith about concerns until early March 2004. In contrast, Goldsmith told us he had been clear? with Gonzales and Addington that the Of?ce of Legal Counsel had concerns about the legality of aspects of the program as early as December 2003, although Goldsmith also acknowledged that his discussions with Gonzales and Addington became more detailed in March 2004. Goldsmith told us that he gave the two White House of?cials the same caveats he gave Ashcroft when advising him on the legality of the program that there were flaws in Yoo?s analysis, but that OLC had not yet concluded that the program itself was illegal. Goldsmith?s efforts to gain the White House?s permission to have others (including Comey) read into the program continued through January 2004. According to Goldsmith?s notes, both Addington and Gonzales pressed Goldsmith on his reason for the request and continued to express doubt that additional resources were needed. However, in late January the White House agreed to allow Comey to be read in, provided that Philbin devoted all of his time to his analysis of the program and, according to Goldsmith, that the Department?s legal analysis be completed by March 2004 when the Presidential Authorization was due to be renewed. (U) APPROVED FOR PUBLIC RELEASE WW 6. Deputy Attorney General Comey is Read into the Program (U) Comey became the Deputy Attorney General on December 9, 2003, and was read into the Stellar Wind program on February 17, 2004. Carney told us that he had no awareness of the program prior to being read in. He said he learned after his read-in that Addington had resisted Goldsmith and Philbin?s efforts to have him read in earlier. Comey said Addington was the ?gatekeeper? for Stellar Wind and wanted to keep the program a ?close hold.? Comey told us that NSA Director Hayden personally wanted to conduct Comey?s read-in to the program. Hayden read in Comey at the Justice Command Center in a brie?ng that took approximately 20 to 30 mmutes. Comey said that, at the read in, Hayden explained the ?three baskets? to him. Comey told us that after Hayden left the Command Center, Comey and Philbin continued discussing the program. Philbin told Conley that there were problems with the legality of the program and that there were ?operational issues? as well. Comey told us that his initial reaction to the program was ?unprintable.? He said he thought that the NSA could not collect the content of certain communications covered by the program outside of FISA authority. Hayden told the 01G that Comey raised no objections to him about the program upon being read in. (U) Within the ?rst month after being read in, Comey discussed the program with Ashcroft, Goldsmith, Philbin, and other Department of?cials who had been read in by this time, including James Baker, Counsel for Intelligence Policy; Chuck Rosenberg, Comey?s Chief of Staff, and Daniel Levin, Counsel to the Attorney General.135 Comey said he did not recall having any discussions about the program with FBI Director Mueller during this period. (U) Comey also recalled meeting with Scott Muller, the CIA General Counsel, shortly after being read into the program. Comey said that he told Muller about the legal concerns Philbin and Goldsmith had raised regarding Yoo?s analysis and that Muller agreed that the concerns were well founded. (U) Corney also told us that Goldsmith had identi?ed for Comey as a particular concern the notion that Yoo?s legal analysis entailed ignoring an '35 Levin had just returned to the Department after working in private practice and serving as a Bush Administration liaison to the September 11 Commission. Rosenberg was read into Stellar Wind in 2003 while serving as Counsel to FBI Director Mueller. (U) 118 APPROVED FOR PUBLIC RELEASE act of Congress, and doing so in secret. Comey stated that Goldsmith described such action as ?breathtaking.? Comey agreed, describing the action as ?unprecedented.? (U) D. Of?ce of Legal Counsel Presents its Conclusions to the White House (U) On March 1, 2004, Philbin completed a ?rst draft of a revised OLC opinion on the Stellar Wind program. According to Goldsmith?s notes, at this time Goldsmith and Philbin had not yet concluded ?de?nitively? that there was ?anything cert ainl wron with the ro am, with the possible exception of the scope of? In explaining the rationale for the revised opinion, Comey described to the OIG his view of two approaches or standards that could be used to undertake legal analysis of government action. If the government is contemplating taking a particular action, legal analysis will be based on a ?best view of the law? standard. However, if the government already is taking the action, the analysis should instead focus on whether reasonable legal arguments can be made to support the continuation of the conduct.137 Comey said that because Stellar Wind was an ongoing program, Goldsmith and Philbin?s analysis proceeded under the second approach. Under this approach, at this point they concluded that there were reasonable 1e a1 ar ents to be made to continue the collection 0? but thei still had not identi?ed a legal argument to support Comey said that durin early March 2004 the sense was that ?we can get there? as t? sin an a gressive legal is. 1d However he said that collection 0 '37 Goldsmith emphasized to us that this second situation almost never presents itself, and that OLC rarely is asked to furnish legal advice on an ongoing program because the pressure ?to say ?yes? to the President" invariably would result in applying a lower standard of review. Goldsmith stated that involvement in Stellar Wind was ?unprecedented? because OLC is always asked to review the facts and formulate its advice ?up front.? APPROVED FOR PUBLIC RELEASE On March 1, 2004, Corney met with FBI Director Mueller to inform him that the OLC had found problems wi the le ri Wind program, particularly with the According to a log Mueller kept documenting events 111 March 2004 concerning the program, Corney said he was trying to work out these problems with the OLC and ?other interested parties.?133 Mueller told us that March 1, 2004, was when he ?rst became aware of the Department?s concerns about the legal support for the program. Mueller described the FBI as ?recipients of information from the program,? and that the dialogue as to the program?s legality was between the Department and the White House. 1. March 4, 2004: Comey Meets with Ashcroft to Discuss Problems with the Program (U) Comey told us he met with Attorney General Ashcroft for lunch on March 4, 2004, to discuss the Stellar Wind program. Corney reminded Ashcroft of the details of the program and said he used salt and pepper shakers and a knife to represent the three baskets during the discussion. According to Comey, Ashcroft agreed with Corney and assessment of the potential legal problems, and he instructed Corney to ?just ?x it? and ?tell them to make the changes that need to be done.? Comey said he assumed Ashcroft meant that Comey should reach out to the NBA and the White House for the necessary changes. The Presidential Authorization in effect at the time was due to expire on March 11, 2004. Comey said Ashcroft did not discuss with him whether he would recertify the program as it was currently being authorized by the President. Comey also described Ashcroft as being frustrated, and said he was ?beating himself up? because he was ?in a box? with Yoo, yet was learning from Philbin, Goldsmith, and now Corney that parts of the program were not in their View legally supportable. 139W After the lunch meeting on March 4, Comey traveled to Phoenix, Arizona, to make a speech. Three hours after their lunch meeting, Ashcroft was struck with severe gallstone pancreatitis and was admitted to the 133 Mueller told us he maintained the program log beeause ?[t]hese were extraordinary circumstances about which I would one day be questioned.? Mueller said the program leg was drafted ?relatively contemporaneously? with the events described in it. (U) 139 By the time Ashcroft received preliminary findings concerning the legality of the program in December 2003, he had already certi?ed the program as to form and legality approximately 20 times. 120 . APPROVED FOR PUBLIC RELEASE WW George Washington University Hospital. After being informed that Ashcroft was hospitalized, Comey returned to Washington the next morning on an FBI jet. (U) 2. March 5, 2004: Comey Determines Ashcroft is ?Absent or Disabled? (U) On March 5, 2004, Goldsmith advised Comey by memorandum that under the circumstances of Ashcroft?s medical condition and hospitalization, a ?clear basis? existed for Comey to determine that ?this is a case of ?absence or disability? of the Attorney General? within the meaning of 28 U.S.C. 508(a). This statute provides: In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that of?ce, and for purposes of section 3345 of title 5 the Deputy Attorney General is the ?rst assistant to the Attorney General. (U) Goldsmith?s memorandum further advised Comey that he could serve as Acting Attorney General until Ashcroft?s absence or disability no longer existed, and that Comey could exercise ?all the power and authority of the Attorney General, unless such power or authority is required by law to be exercised by the Attorney General personally.? See 28 C.F.R. 0. 15(a). Goldsmith noted in the memorandum that there are ?very few duties? that can be exercised only by the Attorney General. Goldsmith wrote that, except for these duties, Corney could opt to exercise the duties of the Attorney General as Deputy Attorney General rather than as Acting Attorney General, noting, ?Your of?ce has informed us that this is your intention.?140 (U) Goldsmith?s memorandum to Comey referenced an attached draft memorandum for Comey?s review, which would memorialize Comey?s decision to invoke 28 U.S.C. 508(a) in writing, although Goldsmith advised that it was not necessary to do so. The ?cc? line of Goldsmith?s memorandum to Comey indicated that a copy of the memorandum was also 140 According to an e?mail sent on March 5, 2004, at 9:15 am. from OLC Special Counsel Daniel to OLC Principal Deputy Assistant Attorney General Edward Whelan and other Department officials, among the duties that can only be exercised by the Attorney General or his designee is the authority to approve FISA applications to engage in electronic surveillance of a specific type of agent of a foreign power based on requests of certain high level of?cials. 50 U.S.C. 1804(e)(2) (A). This section represents an exception to general conferral of authority on the Attorney General, a term that is de?ned to include the Acting Attorney General and the Deputy Attorney General. See 50 U.S.C. 1801(3)- (U) APPROVED FOR PUBLIC RELEASE 49W sent to White House Counsel Gonzales.?1 As discussed below, a signi?cant dispute between White House and Department of?cials later arose over whether the White House in fact received notice of Comey?s decision to assume the powers of the Attorney General, whether as Deputy Attorney General or otherwise. (U) 3. March 5, 2004: Goldsmith and Philbin Seek Clari?cation from White House on Presidential Authorizations (U) On the afternoon of Friday, March 5, 2004 6 days before the Presidential Authorization then in effect was set to expire Goldsmith and Philbin met with Addington and Gonzales at the White House to seek clari?cation on two key issues related to the Authorizations. C1111 on and UODZ CS importance OI briefing the President on this new legal approach to justifying the program. A March 12, 2004, e?mail from Ashcroft's Chief of Staff David Ayres to Deputy White House Counsel David Leitch detailing the Department?s efforts to inform the White House Counsel?s Office of Ashcroft?s hospitalization and Comey?s assumption of Ashcroft?s duties shows that Ayres con?rmed the White Hou se?s receipt of a facsimile from OLC advising the White House of Comey?s decision to exercise ?all the power and authority of the Attorney General . . . in [his] capacity as Deputy Attorney General.? Ayres also wrote in the e-mail that a copy of ?legal memorandum? was sent to White House Counsel Gonzales. Ayres also wrote in the e-mail that he personally called Harriet Miers, a White House Deputy Chief of Staff, and informed her that Comey ?had assumed the Attorney General?s Ayres wrote in the e-mail that he also informed others at the White House of Comey?s status, including another White. House Deputy Chief of Staff [Joe Hagin] and the White House Cabinet Secretary [Brian Montgomery]. (U) APPROVED FOR PUBLIC RELEASE created a serious issue. Gonzales stated that Goldsmith?s argument on this point was that Congress had spoken on the matter by enacting FISA, but Yoo previously had opined that FISA was unconstitutional to the extent it infringed on the President?s Commander?in?Chief authority to conduct electronic surveillance without a judicial warrant!? {asHsanH?fswaefNJI-?a Gonzales also told us that the March 5, 2004, meeting with Goldsmith and Philbin represented the ?rst substantively detailed discussion he had with the OLC of?cials regarding their concerns with the existing legal analysis and their reservations about continuing the program as it had been operating. As noted above, Goldsmith said that he had informed Gonzales and Addington about his general concerns with Yoo?s legal analysis of the program as early as December 2003. {418% Later that day on March 5, Gonzales called Goldsmith to request a letter from the OLC stating that Yoo?s prior OLC opinions ?covered the program.? Philbin told the OIG that Gonzales was not requesting a new APPROVED FOR PUBLIC RELEASE opinion that the program itself was legal, but only that the prior opinions had concluded that it was. 4. March 6 to 8, 2004: The Department Concludes That Yoo?s Legal Memoranda Did Not Cover the Program (U) As a result of Gonzales?s request on March 5, Goldsmith re?examined Yoo?s memoranda with a View toward determining whether they adequately described the actual collection activities of the NSA under the Authorizations. Goldsmith told us that after a brief review, he called Philbin to tell him he agreed with Philbin?s assessment that Yoo?s memoranda were problematic from a factual standpoint. Philbin said that through this re-examination he and Goldsmith con?rmed Philbin?s initial sense that I. II I l? I: Goldsmith?s account of the response to Gonzales?s request was similar. Goldsmith also stated that his and Philbin?s conclusion that Yoo?s memoranda failed to adequately describe the meant that OLC could not tell the White House that the program could continue under the authority of those legal memoranda. Goldsmith stated that he and Philbin realized at this point that the program had been conducted for 2 years without a proper OLC review. Speci?cally, both Goldsmith and Philbin stated that they had always viewed Yoo?s legal analysis as poorly reasoned; however, they were now realizing that Yoo?s factual description of the program was inaccurate and incomplete as well, and thus did not ?cover? aspects of the program. Goldsmith said Gonzales?s request for rati?cation of Yoo?s memoranda ?forced [the Of?ce of Legal APPROVED FOR PUBLIC RELEASE Counsel?s] hand? and was the point at which the ?presumption in favor of legality flipped.?144 On Saturday, 6 004 Gol smith (1 Philbin advised Come that thei believed thew Goldsmith also told Comey that the White House would have to be noti?ed of this development. Comey agreed with this recommendation. Later on March 6, Goldsmith and Philbin went to the White House to meet with Addin ton and Gonzales to conve their conclusions that the According to Goldsmith?s chronology of these events, Addington and Gonzales ?reacted calmly and said they would get back with us.? Goldsmith told us that the White House was now worried that it was ?out there,? meaning that it was implementing a program without legal support. On Sunday afternoon, March 7, 2004, Goldsmith and Philbin met again with Addington and Gonzales at the White House.145 According to Goldsmith, the White House of?cials informed Goldsmith and Philbin that they disagreed with Goldsmith and Philbin?s interpretation of Yoo?s memoranda and on the need to change the scope of the collection.?6 Gonzales told us he recalled the meetings of March 6 and 2004, but did not recall the speci?cs of the discussions. He said he remembered that the overall tenor of the meetings with Goldsmith was one of trying to ??nd a way forward.?147 {re?swsej? 144 As noted in Chapter Three, Gonzales told us that he believed Yoo?s memoranda described as lawful activities that were broader than those carried out under Stellar Wind, and that therefore these opinions ?covered? the Stellar Wind program. ?5 Gonzales told us that White House Chief of Staff Card may also have been present for this meeting. Goldsmith?s chronology indicates that only Addington and Gonzales were present. (U) 145 In discussing these early March meetings with the 01G, Goldsmith told us that Addington had stated on more than one occasion that Goldsmith was the head of OLC and if he determined that the program needed to be shut down, it would be shut down. Goldsmith told us he believed that the White House of?cials? references to ?shutting down the program? extended only to those aspects of the program for which no legal support could be found. Goldsmith also told us that he did not know whether Addington and Gonzales were keeping the President informed of concerns?ECS-H-SH-fl?i?? 147 As noted above, Gonzales was represented by counsel during his interview with the OIG. Also present during the interview because of the issue of executive privilege was a Special Counsel to the President, Emmitt Flood. We asked Gonzales whether the President had been informed by this point in time of the OLC position regarding the lack of legal (Cont'd.] APPROVED FOR PUBLIC RELEASE On the evening of Sunday, March 7, 2004, Goldsmith and Philbin met with Comey in Comey?s of?ce to again review Yoo?s opinions and make sure all three agreed with the conclusion that the opinions failed to support the Stellar Wind program as it was being implemented. Philbin said that until Gonzales?s March 5 request for a letter from the OLC stating that Yoo?s prior OLC opinions ?covered the program,? he and Goldsmith had intended to recommend that the program be recerti?ed ntinued to work on the new OLC inion. WSW According to Goldsmith?s chronology, there was no interaction with the White House on the issue on the following day, Monday, March 8, 2004. Goldsmith wrote in his chronology of events for this day: ?Monday, March 8: Silence.? (U) 5. March 9, 2004: White House Seeks to Persuade Department and FBI to Support Continuation of the Program On Tuesday, March 9, 2004, Gonzales called Goldsmith to attend an early morning meeting (at 6:00 or 6:30 am.) at the White House to discuss the issues regarding Yoo?s memoranda and the Stellar Wind program.149 Goldsmith called Philbin and told him to meet Goldsmith at the White House. According to Goldsmith, Philbin was allowed into the White House, but Gonzales excluded Philbin from the meeting deepite Goldsmith?s requests that Philbin be allowed to participate. support for the program and . Flood objected to the question on relevancy grounds and advised Gonzales not to answer, and Gonzales did not provide us an answer. However, when Gonzales commented on a draft of this report, he stated that he would not have brought Goldsmith and Philbin?s ?concerns? to the attention of the President because there would have been nothing for the President to act upon at that point. Gonzales stated that this was especially true given that Ashcroft continued to certify the program as to legality during this period. Gonzales stated he generally would only bring matters to the President?s attention if the President could make a decision about them. Gonzales told the OIG that he did not recall this meeting. Both Goldsmith and Philbin told the OIG about the meeting. The meeting is also brie?y described in Goldsmith?s contemporaneous notes and chronology. (U) APPROVED FOR PUBLIC RELEASE Goldsmith said Gonzales tried ?rst to persuade him that he and Philbin were wrong to conclude that Yoo?s memoranda did not provide suf?cient legal justi?cation to cover the parts of the program that OLC had identi?ed as problematic, but that Gonzales did not persuade him on this point. Gonzales next argued for a ?30?day bridge? to get past the upcoming March 1 1, 2004, Authorization. Gonzales reasoned that Ashcroft, who was still hospitalized, was not in any condition to sign the upcoming Authorization, and that a ?30-day bridge? would move the situation to a point where Ashcroft would be well enough to approve the program. Goldsmith told Gonzales he could not agree to recommend an extension. Goldsmith said Gonzales noted that Ashcroft had certi?ed the program as to form and legality for the previous two and a half years, yet now Comey was the Acting Attorney General. Goldsmith said the implication of Gonzales?s statement was that not approving the March 1 1, 2004, Authorization would ?undercut? Ashcroft. Goldsmith said he made clear to Gonzales that Ashcroft was ?supportive? of his and Philbin?s analysis. Goldsmith?s notes from the meeting also indicate that Gonzales stated that he did not ?want to face? Ashcroft in the hospital. Goldsmith told us he recommended to Gonzales that he not visit Ashcroft.15? Goldsmith said his discussion with Gonzales lasted about 1 hour. Philbin was then brought into Gonzales?s offiCe and the issues were discussed again. According to Goldsmith?s chronology, nothing was resolved during the meeting. (U) At noon that day, another meeting was held in Andrew Card?s office at the White House. According to Director Mueller?s program log, Mueller, Chief of Staff Card, Vice President Cheney, CIA Deputy Director John McLaughlin, Hayden, Gonzales, and other unspeci?ed of?cials were present. Comey, Goldsmith, and Philbin were not invited to this meeting. Mueller described this gathering as a ?pm-meeting? in anticipation of another meeting that was to be held later that afternoon in which the Justice Department of?cials (Comey, Goldsmith, and Philbin) would be participating.151 (U) 150 At noon on March 9, 2004, Attorney General Ashcroft underwent surgery at the George Washington University Hospital. The surgery was completed by 2:30 p.m. (U) 15' Mueller prepared for this meeting by meeting earlier that morning with Michael Fedarcyk, the Chief of the Communications Exploitation Section; General Counsel Valerie Caproni; and possibly others. Mueller?s program log indicates that Fedarcyk ?appears unaware of details of hos-is collected." WW APPROVED FOR PUBLIC RELEASE WSW According to Mueller?s notes, a presentation on the value of the Stellar Wind program was given by CIA and NSA representati?W ex lained to the group that Comey ?has problems? wi Mueller?s notes state that Vice President Cheney suggested that ?the President may have to reauthorize without [the] blessing of to which Mueller responded, could have a problem with that,? and that the FBI would ?have to review legality of continued participation in the A third meeting was held at the White House that afternoon, at 4:00 p.m. The meeting included Comey, Goldsmith, and Philbin, in addition to Vice President Cheney, Card, Addington, Gonzales, Hayden, Mueller, CIA General Counsel Muller, McLaughlin, and approximately 10 NSA Gonzales told us the meeting was held to make sure that Comey understood what was at stake with the program and to demonstrate its value. At the beginning of the meeting the NSA made a presentation to Corney, Goldsmith, and PhilWresentation consisted of charts showing the chaining capabilities that could be generated from Stellar Wind-derived information, as well as a description of ?success stories? resulting from the program. Comey told us that the cases the highlighted were not in his view the Stellar Wind successes that the claimed, and that he felt ?the NSA had no good stories to tell about the program.?153 Corney also told us that the collection of content communications under Stellar Wind was somewhat duplicative of existing FISA coverage, and that only the meta data collection under baskets 2 and 3 represented truly new capabilities. However, Corney said he did not challenge the on the assertion that Stellar Wind was a critical anti-terrorism tool because the value of the program was not his primary concern. Rather, Comey said he was willing to concede the program?s value, and that his concern was with its legality. Goldsmith told us that he did not believe it was his place to judge the value of the program from an intelligence-gathering standpoint. Goldsmith told us he found persuasive a remark by Hayden that even though there may not have been major successes under the program to date, the program still could produce successes in the future. However, both Goldsmith and ?51 Mueller?s notes indicate tha were cited as examiles during the presentation. We lscuss brie?y in this chapter and in Chapter Six. WSW ?53 Comey speci?cally questioned whether th case was a legitimate ?success story" under the Stellar Wind program. Th ease: as well as other cases cited as successes under Stellar Wind, is discussed in Chapter Six. APPROVED FOR PUBLIC RELEASE The NSA were excused after their presentation and the meeting continued. Comey said Vice President Cheney stressed that the program was ?critically important? and warned that Comey would risk ?thousands? of lives if Comey did not agree to recertify it. Comey said he told those at the meeting that he, as the Deputy Attorney Gener the owers of the Attorne General, could support reauthorizingW?l 154 get there? on According to Corney, the White House said it could not agree to that modi?cation. WSW Comey also told us he was certain the White House understood him to be the acting in Attorney General Ashcroft?s stead during this meeting. (U) Gonzales told us that he came awa from the meetin with the understandm that somey* WSW 6. Con?ict Ensues between Department and White House (U) Each of the Department witnesses we interviewed concerning the Department?s discussions with the White House during this time period APPROVED FOR PUBLIC RELEASE emphasized the sense of pressure and anxiety that pervaded the discussions in March 2004. For instance, Comey said discussions during the meeting at the White House on March 9 became heated as he sought to convey to everyone how dif?cult it was for the Department to take the position it was taking, and how hard the Department officials were working to find a solution. Comey also stated that Vice President Cheney was ?understandably frustrated? because the Department was changing its advice to the White House about the program. (U) Goldsmith also recalled that at one point during these meetings with the White House, Addington told him that if he narrowed the Stellar Wind program Goldsmith ?will have the blood of 100,000 American lives on his Goldsmith observed to us that from the White House?s point of view, due to the timing of the events, and in particular with Ashcroft in the hospital, it appeared to the White House that a ?palace coup? was taking place at the Department of Justice. Goldsmith said that this perception was somewhat understandable under the circumstances. (U) Philbin also stated that tensions were high during this period and that the Department and White House ?started to divide into camps.? Philbin added that Department and White House of?cials were ?starting to attribute motives? to each other. Philbin said he thought Addington came to believe that Comey was opposed to recertifying the program for ?political reasons,? and that Comey wanted to be on the ?politically right? side of the dispute. (U) Comey said that his dealings with Gonzales, Card, Addington, and others at the White House were generally civil. Comey acknowledged that there was tension between the Department and the White House during the March 2004 period, but believed that it resulted primarily from differences in legal perspectives. (U) II. White House Continues Program without Justice Department?s Certification The Presidential Authorization under which the program was operating during early 2004 was set to expire on March 11, 2004. As described in the preceding section, Comey concurred with the views of Goldsmith and Philbin, and as the Deputy Attorney General exercising the powers of the Attorney General Comey refused to certify the program as to form and legality. He conveyed this decision to the White House during the meeting on the afternoon of March 9, 2004. In response, as described below, the President decided to reauthorize the program without the Justice APPROVED FOR PUBLIC RELEASE WOW Department?s support, precipitating a serious confrontation between White House and Department of?cials. A. White House Counsel Gonzales Certifies March 11, 2004, Presidential Authorization 1. March 10, 2004: Of?ce of Legal Counsel Presses for Solicitor General to be Read into Program (U) Goldsmith, Philbin, and Comey met in the early afternoon of March 10, 2004, to discuss the meeting at the White House the day before and how the Department should proceed. Goldsmith 8.11% recon?rmed their osition to Come that collection unde Goldsmith and Philbin also recommended to Conley that Solicitor General Theodore Olson be read into the program. Goldsmith told us that Olson had been at the Department for a long time and had valuable experience and credibility. Goldsmith said that given the importance of the decisions being made at the Department concerning the program at this time, he believed it was imperative to have Olson read in. (U) . Carney agreed with Goldsmith and Philbin, and he directed Goldsmith to call Gonzales to reaf?rm the Department?s position on the program and also to request that Olson be read in. (U) Goldsmith called Gonzales at 2:20 p.m. cm the De artment could not support the legality of has then being implemented under the program. Goldsmith also told Gonzales of the ?urgent need? for approval to read Olson into the program. Goldsmith?s notes indicate that he called Gonzales twice that day with the request to have Olson read in, but by early evening had not heard back from Gonzales. WSW 2. March 10, 2004: Congressional Leaders Briefed on Situation (U) Gonzales told us that after President Bush was advised of the results of the March 9, 2004, meeting, the President instructed Vice President Cheney on the morning of Wednesday, March 10, to call a meeting with congressional leaders to advise them of the impasse with the Justice Department. On the afternoon of March 10, at approximately 4:00 or 5:00 Gonzales and other White House and intelligence agency of?cials, including Vice President Cheney, Card, Hayden, McLaughlin, and Director of Central Intelligence George Tenet, convened an ?emergency meeting? with Congressional leaders in the White House Situation Room. The 131 APPROVED FOR PUBLIC RELEASE TOW congressional leaders in attendance were Senate Majority and Minority Leaders Bill Frist and Tom Daschle; Senate Select Committee on Intelligence Chairman Pat Roberts and Vice Chairman Jay Rockefeller; Speaker of the House Dennis Hastert and House Minority Leader Nancy Pelosi; and House Permanent Select Committee on Intelligence Chair Porter Goss and Ranking Member Jane Harman. This congressional group was known informally as the ?Gang of Eight.? (U) No of?cials from the Department were present at the meeting. When we asked Gonzales whether the White House had given any consideration to inviting Department of?cials to attend, Gonzales declined to answer on the advice of the Special Counsel to the President, who was present during Gonzales?s interview with the OIG.155 (U) Gonzales told us that President Bush also directed him to ?memorialize? the meeting, although Gonzales said he could not recall whether the President directed him to do so before or after the meeting. Gonzales did not take notes during the meeting. Rather, he said he wrote down his recollection of the meeting within a few days of Wednesday, March 10, probably, according to him, the following weekend.155 Gonzales said that, with the exception of a single phrase discussed below, he wrote his notes in one sitting in his White House of?ce. (U) The notes indicate that President Bush appeared brie?y at the start of the meeting to explain how important the meeting was. Vice President Cheney, who chaired the meeting, gave a general explanation of the program and indicated that the purpose of the meeting was to ?discuss potential legislation to continue the program.? According to Gonzales?s notes, Hayden then explained the collection of ?t under the program. 155 However, when Gonzales commented on a draft of this report, he stated that the Department was not invited to the meeting because the purpose of the meeting was to advise the congressional leaders that a legislative ?x was necessary, not to describe or resolve the legal dispute between the Department and the White House. 155 Gonzales?s handling of his notes from this meeting later became the subject of a separate OIG misconduct investigation. The OIG found that when Gonzales became the Attorney General in 2005, he took the notes, which contained SCI information relating to the Stellar Wind program, from the White House and improperly stored these notes at his residence for an indeterminate period. When he brought the notes to the Juetice Department, he kept them in a safe near his of?ce that was not cleared for storage of TS SCI material. The OIG also determined through this investigation that Gonzales improperly stored several other TS SCI documents in the safe near his of?ce, many of which concerned Stellar Wind. The report, entitled ?Report of Investigation Regarding Allegations of Mishandling of Classified Documents by Attorney General Alberto Gonzales,? was released by the OIG on September 2, 2008, and can be found at http: gov oig/ special $0809 indexhtm. APPROVED FOR PUBLIC RELEASE ?157 According to Gonzales?s notes, the briefers then left meeting an the remaining participants discussed the need for legislation so that the program?s intelligence collection activities could continue. Gonzales?s notes indicate that when he was asked at the meetin wh Come was ?reluctant? to si the Authorization, Gonzales res onded about the basis for the Department?s concerns about the legal support for the The notes indicate that Andrew Card stated that ?it would be hard to explain if another attack occurred and we could have stopped it with this tool.? Gonzales?s notes then state: Andy asked if anyone had any reservation and no one spoke up raising an objection - The VP said that what I am hearing is that we should go forward with the program for a period of 30-45 days and see if there was a legislative tin-WSW- The notes indicate that Vice President Cheney read aloud proposed language of new legislation. However, the notes do not describe the proposed legislation that was discussed. (U) According to Gonzales?s notes, the reactions and comments of the congressional leaders were as follows: Both Hastert and Roberts ?said they now felt an obligation to use the tool thou accordin to the notes Roberts said that if Corney would not certify the Authorization ?he should be ?red.? Harman suggested that another branch of government ?should have some role, checks and balances on the program? and raised the possibility of involving the FISA Court. According to the notes, Gonzales responded to Harman?s suggestion by volunteering that it would be possible to have the Presiding Judge of the FISA Court ?approve or develop the guidelines to protect privacy rights.? The notes state that Daschle felt it would be "impossible to get [new legislation] passed ?57 Gonzales told us he was unable to recall 'n esl and said he did not recall whether it had to 0 mt (U) APPROVED FOR PUBLIC RELEASE without it becoming very public.? Rockefeller was ?concerned about privacy safeguards? and was advised of ?the 39 steps followed [by the to make sure privacy concerns were addressed.? According to the notes, Pelosi expressed concern about giving ?total discretion? to the President and discussed the need for the proposed legislation to be periodically renewed by Congress and that it not be permanent. Gonzales told us he initially left a gap in one section of the notes where he described Pelosi?s comments. He stated that a day or so later, after recalling what she had said at the meeting, he filled in the gap with the following italicized language: ?Pelosi said tell DAG that everyone is comfortable and the program should go forward.?153 (U) 3. March 10, 2004: Hospital Visit (U) Gonzales told us that following the meeting with the congressional leaders during the afternoon of March 10, President Bush instructed him and Card to go to the George Washington University Hospital to speak to Ashcroft, who was recovering from surgery in the intensive care unit. The events that followed, which are recounted below, are based on notes from Ashcroft?s FBI security detail, Goldsmith?s notes, and Mueller?s program log; the interviews of Gonzales, Comey, Goldsmith, Philbin, and Mueller; and Comey and Gonzales?s congressional testimony.159 (U) At 6:20 pm. on March 10, Card called the hospital and spoke with an agent in Ashcroft?s FBI security detail, advising the agent that President Bush would be calling shortly to Speak with Ashcroft. Ashcroft?s wife told ?53 When Gonzales testified before the Senate Judiciary Committee on July 24, 2007, he essentially described the congressional leaders? reactions to the March 10, 2004, Gang of Eight brie?ng as he did in his handwritten notes of the brie?ng, stating, ?The consensus in the room from the congressional leadership is that we should continue the activities, at least for now.? However, after Gonzales testi?ed, Representative Pelosi, Senator Rockefeller, and Senator Daschle issued statements to the media sharply disputing Gonzales's characterization of their statements at the March 10, 2004-, brie?ng, and stating that there was no consensus at the meeting that the program should proceed. See "Gonzales, Senators Spar on Credibility,? by Dan Eggen and Paul Kane, The Washington Post (July 25, 2007). Pelosi?s of?ce also issued a statement that she ?made clear my disagreement with what the White House was asking? concerning the program. See ?Gonzales Comes Under New Bipartisan Attack in Senate,? by James Rowley, Bloomberg.corn (July 24, 2007). We did not attempt to interview the congressional leaders and obtain their recollections as to what was said at this meeting, because this was beyond the scope of our review. (U) '59 Carney described the events surrounding the hospital visit in testimony before the Senate Judiciary Committee on May 15, 2007. Gonzales testi?ed about these issues before the Senate Judiciary Committee on July 24, 2007. As noted above, Attorney General Ashcroft and Card declined our request to be interviewed. Ayres, Ashcroft?s Chief of Staff at the time, also declined our request for an interview. (U) APPROVED FOR PUBLIC RELEASE the agent that Ashcroft would not accept the call. Ten minutes later, the agent called Ashcroft?s Chief of Staff David Ayres through the Justice Command Center to request that Ayres speak with Card about the President?s intention to call Ashcroft. The agent conveyed to Ayres Mrs. Ashcroft?s desire that no calls be made to Ashcroft for another day or two.?0 Ayres told the agent he would relay this message to Card. (U) However, at 6:45 Card and the President called the hospital and, according to the agent?s notes, ?insisted on speaking [with Attorney General Ashcroft].? According to the agent?s notes, Mrs. Ashcroft, rather than Attorney General Ashcroft, took the call from Card and the President. According to the agent?s notes, she was informed that Gonzales and Card were coming to the hospital to see Ashcroft r'egarding a matter involving national security. (U) At approximately 7:00 Ayres was advised, either by Mrs. Ashcroft or a member of the Attorney General?s security detail that Gonzales and Card were on their way to the hospital. Ayres then called Comey, who at the time was being driven home by his security detail, and told Comey that Gonzales and Card were on their way to the hospital. Comey told his driver to rush him to the hospital. According to Comey, his driver activated the emergency lights on the vehicle and headed to the hospital. (U) According to his congressional testimony, Comey then called his Chief of Staff, Chuck Rosenberg, and directed him to ?get as many of my people as possible to the hospital immediately.? Comey then called FBI Director Mueller, who was having dinner with his wife and daughter at a restaurant, and told him that Gonzales and Card were on their way to the hospital to see Ashcroft, and that Ashcroft was in no condition to receive guests, much less make a decision about whether to continue the program. According to Mueller?s program log, Comey asked Mueller to come to the hospital to ?witness [the] condition of Mueller told Comey he would go to the hospital right away. (U) At 7:05 Ayres was noti?ed by an agent on Ashcroft?s security detail that Comey was en route to the hospital. Ayres called the agent back at approximately 7:20 pm. and told the agent that ?things may get ?a little weird?? when Gonzales and Card arrived. Ayres instructed Ashcroft?s security detail, which was composed of FBI agents, to give its ?full support? to Comey and to follow Comey?s instructions. Ayres also told the agent that the security detail should not allow the U.S. Secret Service agents who Ashcroft was recovering from his gallbladder surgery the prior day. He was described by those who saw him that night as being very weak and appearing heavily medicated. Philbin told us that Ashcroft was ?on morphine? on the evening of March 10. (U) APPROVED FOR PUBLIC RELEASE would be accompanying Gonzales and Card to remove Comey from Ashcroft?s room. The FBI agent told Ayres that the Attorney General?s security detail would ?fully back? Comey and that ?this is ?our scene?.? (U) Philbin said he was leaving work that evening when he received a call from Comey, who said that Philbin needed to get to the hospital right away because Gonzales and Card were on their way there ?to get Ashcroft to sign something.? Comey also directed Philbin to call Goldsmith and tell him what was happening at the hospital. Philbin called Goldsmith from a taxi on his way to the hospital. Goldsmith told us he was home having dinner when he received Philbin?s call telling him to go immediately to the hospital. (U) Comey arrived at the hospital between 7:10 and 7:30 p.m.151 In his congressional testimony, Comey said he ran up the stairs with his security detail to Ashcroft?s ?oor, and he entered Ashcroft?s room, which he described as darkened, with Ashcroft lying in bed and his wife standing by the bed. Comey said he began speaking to Ashcroft, ?trying to orient him as to time and placecould focus on what was happening.? Comey said it was not clear that Ashcroft could focus and that he ?seemed pretty bad Comey stepped out of the room into the hallway and telephoned Muellerthe hospital. With Mueller still on the line, Comey gave his phone to an FBI agent on Ashcroft?s security detail, and according to Comey Mueller instructed the agent not to allow Comey to be removed from Ashcroft?s room ?under any circumstances.? (U) Goldsmith and Philbin arrived at the hospital within a few minutes of each other. Comey, Goldsmith, and Philbin met brie?y in an FBI ?command post? that had been set up in a room adjacent to Ashcroft?s room. Moments later, word was received at the command post that Card and Gonzales had arrived at the hospital and were on their way upstairs to see Ashcroft. Philbin told us the FBI agents in the command post called down to the checkpoint at the hospital entrance to ask whether Card and Gonzales were accompanied by Secret Service agents, which Philbin said indicated concern that a ?stand-off? between the FBI agents and the Secret Service agents might ensue. (U) Comey, Goldsmith, and Philbin entered Ashcroft?s room. Goldsmith described Ashcroft?s appearance as ?weak? and ?frail,? and observed that his breathing was shallow. Philbin said he was shocked by Ashcroft?s appearance and said he ?looked terrible.? Philbin said that Ashcroft ?51 There is a discrepancy in the Attorney General?s security detail log on the time. One agent wrote that Corney arrived at 7:10. Another agent wrote that Comey arrived at '7 :30. (U) APPROVED FOR PUBLIC RELEASE appeared to have lost a lot of weight, was ?gray in the face,? and was ?almost out of it? because he was on morphine. Comey stated that Ashcroft was ?clearly medicated.? (U) Comey testified that he sat in an armchair by the head of Ashcroft?s bed, with Goldsmith and Philbin standing behind him; Mrs. Ashcroft stood on the other side of the bed holding Ashcroft?s arm. No security or medical personnel were present. (U) Goldsmith?s notes indicate that at this point Comey and the others advised Ashcroft ?not to sign anything.? (U) Gonzales and Card, unaccompanied by Secret Service agents, entered Ashcroft?s hospital room at 7:35 according to the FBI agent?s The two stood across from Mrs. Ashcroft at the head of the bed, with Comey, Goldsmith, and Philbin behind them. (U) Gonzales stated that when he entered the hospital room, Ashcroft was in the bed and his wife was ?at the 11:00 position.? Gonzales said to us that he was unaware that Comey, Goldsmith, and Philbin were also present in the room until Card told him this later. Gonzales told us that he could ?sense? that others were in the room, but that he was not sure who, because his focus was on Ashcroft. Gonzales said he carried with him in a manila envelope the March 1 1, 2004, Presidential Authorization for Ashcroft to sign. (U) According to Philbin, Gonzales ?rst asked Ashcroft how he was feeling. Ashcroft replied, ?Not well.? Gonzales then said words to the effect, ?You know, there?s a reauthorization that has to be renewed . . . (U) Goldsmith told the OIG that Gonzales next reminded Ashcroft that he had been certifying the program for the past 2 years. Corney told us that Gonzales told Ashcroft, ?We have arranged for a legislative remediation; we?re going to get Congress to fix it,? and that more time was needed to accomplish this. Comey told us he did not know What Gonzales meant by ?legislative remediation.? (U) Gonzales told us that he did not recall telling Ashcroft that a legislative remediation had been arranged, but rather may have told Ashcroft that White House of?cials had met with congressional leaders ?to pursue a legislative (U) Comey testified to the Senate Judiciary Committee about what happened next: '02 Gonzales told us he and Card arrived in Ashcroft?s hospital room at 7:20. (U) APPROVED FOR PUBLIC RELEASE . . . Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his View of the matter, rich in both substance and fact, which stunned me, drawn from the hourlong meeting we?d had a week earlier, and in very strong terms expressed himself, and then laid his head back down on the pillow. He seemed spentlaid back dOWn, he said, ?But that doesn?t matter, because I?m not the Attorney General. There is the Attorney General,? and he pointed to me I was just to his left. The two men [Gonzales and Card] did not acknowledge me; they turned and walked from the room. (U) Comey also testi?ed that thought I had just witnessed an effort to take advantage of a very sick man, who did not have the powers of the Attorney General because they had been transferred to me.? (U) Philbin described to us Ashcroft?s statements to Gonzales and Card in the hospital room, stating that Ashcroft ?rallied and held forth for two minutes? about problems with the program as had been explained to him by Comey, and that Ashcroft agreed with Comey. Gonzales told us that he did not recall Ashcroft stating that he agreed with Comey. Goldsmith?s notes indicate that Ashcroft argued in particular that collection activities exceeded the scope of emoranda, stating that he was troubled by 153 Accordin to h?s notes Ashcroft so said that it was ?very troubling that Wpeople in other agencies? had been read into the program, but that Ashcroft?s own Chief of Staff, and until recently the Deputy Attorney General, had not been allowed to be read in. Gonzales told us he responded to Ashcroft that this was the President?s decision. According to Goldsmith?s notes, Ashcroft also complained that the White House had ?not returned phone calls,? and that the Department had been ?treated badly and cut out of [the] whole affair.? Ashcroft told Gonzales that he was ?not prepared to sign anything." (U) When we interviewed Gonzales about the hospital visit, he stated that these were ?extraordinary circumstances,? that the program had been reauthorized over the past two years, and that the sentiment of the ?33 As discussed in Chapter Three, Ashcroft was present for the January 31, 2002, brief?mg of Presiding Judge of the FISA Court Royce Lamberth about the program. According to an outline of information to be covered during that brie?ng, NSA Director Hayden would have explained how the program functioned operationally. Because Ashcroft did not a tee to be interviewed, we were unable to determine what Ashcroft understood about meg?collection prior to Philbin and Goldsmith?s explanation to him of this aspect of the program in late 2003. APPROVED FOR PUBLIC RELEASE MAI-WW congressional leadership was that it should continue. Gonzales said he therefore felt it was very important that Ashcroft be told what was happening, adding ?If I were the Attorney General I would damn sure want to know.? (U) In his July 2007 congressional testimony, Gonzales also explained the visit to the hospital by stating that it was ?important that the Attorney General knew about the views and recommendations of the congressional leadership; that as a former member of Congress and as someone who had authorized these activities for over two years, that it might be important for him to hear this information. That was the reason that Mr. Card and I went to the hospital.? Gonzales further testi?ed, ?We didn?t know whether or not he knew of Mr. Comey?s position and, if he did know, whether or not he agreed with it.? Gonzales also disputed Goldsmith?s account that Ashcroft stated that he was ?not prepared to sign anything," and referred us to his July 2007 testimony where he stated: (U) My recollection, Senator [Feinstein], is and, of course, this happened some time ago and people?s recollections are going to differ. My recollection is that Mr. Ashcroft did most of the talking. At the end, my recollection is, he said, ?I?ve been told it would be improvident for me to sign. But that doesn?t matter, because I?m no longer the Attorney General.? (U) Gonzales told us that he and Card would not have gone to the hOSpital if they believed Ashcroft did not have the authority to certify the Authorization and told us that as soon as Ashcroft stated he no longer retained authority to act, Gonzales decided not ask Ashcroft to sign the Authorization. In his congressional testimony Gonzales stated, ?Obviously there was concern about General Ashcroft?s condition . . . [W]e knew, of course, that he was ill, that he?d had surgery.? Gonzales also stated that ?We would not have sought nor did we intend to get any approval from General Ashcroft if in fact he wasn?t fully competent to make that decision.? He also testi?ed, ?There?s no governing legal principle that says that Mr. Ashcroft . . . If he decided he felt better, could decide, ?I?m feeling better and I can make this decision, and I?m going to make this decision.??154 (U) The Attorney General security detail?s logs indicate that Gonzales and Card left Ashcroft?s room at 7:40 pm. (U) 10" Hearing before Senate Judiciary Committee, July 24, 2007. Gonzales also told us that he would not have gone to the hospital solely over the dispute concerning the scope APPROVED FOR PUBLIC RELEASE Moments after Gonzales and Card departed, Mueller arrived at the hOSpital. According to Mueller?s notes, outside the hospital room Comey informed him of the exchange that had occurred in Ashcroft?s room, and in particular that Ashcroft had stated that Comey was the Acting Attorney General, that ?all matters? were to be taken to Comey, but that Ashcroft supported Comey?s position regarding the program. Mueller?s notes also state: ?The AG also told [Gonzales and Card] that he was barred from obtaining the advice he needed on the program by the strict compartmentalization rules of the [White House].? (U) Mueller?s notes indicate that Comey asked Mueller to witness Ashcroft?s condition, and requested Mueller to inform the FBI security detail that no visitors, other than family, be allowed to see Ashcroft without Mueller?s consent. Both Mueller?s notes and the security detail log indicate that Mueller instructed the detail that under no circumstances was anyone to be allowed into Ashcroft?s room without express approval from either Mrs. Ashcroft or Mueller. (U) At approximately 8:00 p.m. Mueller went into Ashcroft?s room for 5 to 10 minutes. Mueller wrote in his program log: in chair; is feeble, barely articulate, clearly stressed.? (U) 4. March 10, 2004: Olson is Read into the Program (U) According to Comey?s congressional testimony, while he was speaking with Mueller prior to Mueller?s departure from the hospital, an FBI agent interrupted, stating that Comey had an urgent telephone call from Card. Comey testi?ed that he then spoke with Card, who was very upset and demanded that Comey come to the White House immediately. Comey testi?ed that he told Card that based on the conduct Comey had just witnessed at the hospital, he would not meet with Card without a witness present. Comey testi?ed that Card replied, ?What conduct? We were just there to wish him well.? Comey reiterated his condition that he would only meet Card with a witness present, and that he intended the witness to be Solicitor General Olson. Comey testi?ed that until he could ?connect? with Olson, he was not going to meet with Card. Card asked if Comey was refusing to come to the White House, and Comey responded that he was not refusing and would be there, but that he had to go back to the Justice Department ?rst. (U) Comey and the other Department of?cials left the hospital at 8: 10 pm. Philbin stated that he returned to the Department with Comey in Comey?s vehicle, and that the emergency lights were again activated. Goldsmith also left the hospital and went to the Department. At the Department Comey, Goldsmith, and Philbin were joined by Olson, who had come to the Justice Department after being contacted at a dinner party. APPROVED FOR PUBLIC RELEASE Comey told us that he believed there was an urgent need to have Olson read into the program because he was confident Olson would agree with Comey and the others that Yoo?s legal analysis was ?awed and that Olson would be a strong ally in the matter because of Olson?s respected intellect and credibility. (U) During this meeting at the Justice Department, a call came from Vice President Cheney for Olson, which Olson took on a secure line in Comey?s office while Comey waited outside. Comey told us he believes Vice President Cheney effectively read Olson into the program during that conversation. (U) Comey and Olson then went to the White House at about 11:00 and met with Gonzales and Card that evening. Corney testi?ed that Card would not allow Olson to enter his of?ce. Comey relented and spoke to Card alone for about 15 minutes. At that point, Gonzales arrived and brought Olson into the room. According to Comey, he communicated the Department?s views on the dispute and that the disPute was not resolved in this discussion. Comey stated that Card was concerned that he had heard reports that there was to be a large number of resignations at the Department. (U) Gonzales told us that he recalled that Comey met ?rst with him and Card while Olson waited outside the of?ce, and that Olson joined them shortly thereafter. Gonzales said that little more was achieved than a general acknowledgement that a ?situation? continued to exist because of the disagreement between the Department and the White House regarding the program.155 (U) 5. March 11, 2004: Goldsmith Proposes Compromise Solution (U) According to a memorandum to the file drafted by Goldsmith, he met with Gonzales at 6:30 am. the next morning, March 1 1, 2004, at the White House to discuss a proposal under which the Department could support 155 Comey stated that Olson did not become deeply involved in analyzing the Stellar Wind program in the days that followed because he was preparing for a major argument before the Supreme Court. Comey told us that Deputy Solicitor General Paul Clement was read into the program on March 12, 2004, and reviewed all of the OLC memoranda that weekend. Comey said Clement agreed with Goldsmith and Philbin?s analysis ?one hundred percent" and later worked with the OLC on drafting a new memorandum on the legality of the program, which is discussed below. However, Bradbury told us that Comey?s characterization of Clement?s View of the analysis was exaggerated. Bradbury told us that Clement had remarked to him after these events transpired that Goldsmith and Philbin?s analysis ?sounded reasonable to me at the time,? and that Clement's view of the analysis was based only on a limited review of it. APPROVED FOR PUBLIC RELEASE WW certi?cation of the ro ram. Goldsmith?s ro os lhad three conditions. Goldsmith told us that he did not speci?cally recall this meeting. Gonzales told us that he recalled conveying to Goldsmith and Philbin at some point during this day that the President had decided he had the constitutional authority to continue the program. Gonzales said he also expressed to Department of?cials the sentiment that the Department should continue seeking a way to ?get comfortable? with the President?s decision. (U) 6. March 11, 2004: White House Asserts that Comey?s Status as Acting Attorney General was Unclear (U) Goldsmith told the OIG that later during the morning of March 11, 2004, he received a call from Deputy White House Counsel David Leitch. Goldsmith said Leitch was ?yelling and screaming? about the White House not being informed that Comey was the Acting Attorney General. Goldsmith told the OIG that Leitch made two speci?c complaints. First, Leitch claimed that the White House had never received a determination from OLC on Comey?s assumption of Ashcroft?s powers and duties. Goldsmith told us that to rebut this charge, OLC Deputy Assistant Attorney General Edward Whelan was sent to the Justice Command Center to retrieve from a waste basket the facsimile transmittal con?rmation sheet from the March 5, 2004-, memorandum Goldsmith had sent to Gonzales entitled ?Determination that Attorney General is absent or disabled.? This con?rmation sheet subsequently was sent to Leitch.166 (U) '55 In a March 12, 2004, e-mail to Ayres, Comey, Goldsmith, Philbin, and others (including a copy to Gonzales), Leitch offered a ?clari?cation,? asserting that the White House had in fact received the Goldsmith memoranda of March 5, as well as the (Cont?d.) APPROVED FOR PUBLIC RELEASE 4W Leitch?s second claim was that the OLC memorandum was ambiguous because it did not specify whether the Attorney General was determined to be ?absent? or ?disabled,? a difference for purposes of the Attorney General?s authority. According to Goldsmith, if the Attorney General was ?absent,? the Deputy Attorney General could act as the Attorney General, although the Attorney General would retain his authority and technically could overrule the Deputy. If the Attorney General was ?disabled,? the Attorney General was divested of all authority. Goldsmith said he responded to Leitch by noting the inconsistency of the White House making this second claim because, according to Leitch, it had not received Goldsmith?s memorandum in the ?rst instance. (U) Goldsmith said he also told Leitch to ?lay off? the complaints, but that Leitch did not. Goldsmith said he therefore reluctantly sent a detailed e-mail to Leitch on March 1 1 to support the Department?s contention that it had properly informed the White House of Ashcroft?s status. Goldsmith stated that in the e-mail he also made the point that his conversation with Gonzales on March 9, 2004 (discussed above) was premised on Gonzales?s knowledge that Ashcroft was ill and that Comey needed to authorize a ?30?day bridge? until Ashcroft was well enough to sign the Authorizations again.157 (U) Gonzales told us that he had no recollection of having seen March 5, 2004, memorandum entitled ?Determination that Attorney General is absent or disabled.? As described above, Gonzales stated that he and Card would not have gone to the hospital if they believed Ashcroft did not have the authority to certify the Authorization as to form and legality. Gonzales also said that while he believed Comey would be making the decision to recertify the program, this did not mean that Ashcroft had relinquished his authority or had been ?recused? from making the decision. Gonzales said he believed that Ashcroft retained the authority if he was competent to exercise it and was inclined to do 50.153 memorandum from Corney?s Chief of Staff Chuck Rosenberg memorializing Comey?s decision that the Attorney General was ?absent or disabled? within the meaning of 28 U.S.C. 508(a). Leitch?s clari?cation stated that the Rosenberg memorandum had been in draft form. (U) ?37 The OIG searched for but was unable to find this e?mail from Goldsmith to Leitch. (U) '53 During his July 24, 2007, testimony before the Senate Judiciary Committee, however, Gonzales stated that he thought there had been newspaper accounts of Comey?s assumption of the Attorney General?s duties and stated that ?the fact that Mr. Comey was the acting Attorney General is probably something that I knew of.? Gonzales testi?ed that he was aware that Ashcroft was ill and had undergone surgery, but Gonzales stated that Ashcroft ?could always reclaim" his authority. (U) APPROVED FOR PUBLIC RELEASE WW 7. March 11, 2004: Gonzales Certifies Presidential Authorization as to Form and Legality On the morning of March 1 l, 2004, with the Presidential Authorization set to expire, President Bush signed a new Authorization.169 Ina departure from the past practice of having the Attorney General certify the-Authorization as to form and legality, the March 1 Authorization was certi?ed by White House Counsel Gonzales. The March 11 Authorization also differed markedly from prior Authorizations in three other respects. The ?rst signi?cant difference between the March 11, 2004, Presidential Authorization and prior Authorizations was the President?s explicita Inn.lc 1scusse Control and Safe Streets Act of 1968, 18 U.S.C. 2510-252 1 (generally referred to as Title are by their terms the ?exclusive means by which electronic surveillance, as de?ned in and the interception of domestic wire, oral, and electronic communications may be conducted.? 18 U.S.C. This new language was based on the same legal rationale Yoo ?rst advanced in support of the Stellar Wind program that FISA cannot be read to infringe upon the President?s Commander-in-Chief authority under Article II of the Constitution during wartime. WW told the that he believed the language was included in the March 11 Authorization as a way of indicating that the President did not agree with Goldsmith and Philbin?s analysis, and to protect those who had been implementing the program under the prior OLC opinions. 16? The March 11, 2004, Presidential Authorization stated that it would expire on May 6, 2004. APPROVED FOR PUBLIC RELEASE According to Corney and Philbin, this new language was Addington?s Philbin said he believed the new language was ?suf?cient? to address the Departmen - tions did not adequately describe the being carried 9 NSA, although he believ I I I. I. In his OIG interview, Gonzales declined to explain the signi?cance of this new language, based on an assertion from the Special Counsel to the ?72 Hayden and Philbin both told the OIG that Addington drafted the Presidential Authorizations. In his OIG interview, we asked Gonzales who drafted the March 11, 2004, Authorization. On the advice of the Special Counsel to the President, Gonzales declined to answer. APPROVED FOR PUBLIC RELEASE at para. 10. However, Gonzales told us that he found it ?hard to believe? that no one at the De artment understood that the NS Gonzales said he was aware that Philbin hadbeen to the NSA several times and had met with NSA of?cials to gain an understanding of how the program was actually implemented. APPROVED FOR PUBLIC RELEASE WW We asked Gonzales why he signed the March 11, 2004, Presidential Authorization even though the Department could not support it. On the advice of the Special Counsel to the President, Gonzales declined to answer. However, Gonzales stated that the White House Counsel, like OLC, provides legal advice to the President and that his signature on the Authorization simply represented his advice as to its form and legality. SA Director Hayden told us that Addington asked him whether the NSA would be willing to continue the Stellar Wind program without the Justice Department?s certi?cation of the Presidential Authorization. Hayden said this was a ?tough question? and that he consulted with his leadership team at the NSA before making a decision. Hayden said that three considerations persuaded him to continue the program. First, the congressional members briefed on the situation on March 10, 2004, were supportive of continuing the program without Comey?s certi?cation. Second, the program had been operating for the previous two and a half years with Department approval. Third, the NSA General Counsel?s of?ce told him the program was legal. Hayden said he was unsure whether proceeding without the Department?s certi?cation was a sustainable approach, but that he was comfortable doing so when the issue arose in March 2004. B. Department and FBI Of?cials React to Issuance of March 11, 2004, Authorization Several Department and FBI leadership of?cials considered resigning after the Presidential Authorization was signed despite the Deputy Attorney General?s refusal to certify the program based on the Department?s determination that certain activities it authorized were without adequate legal support. Many of the Department, FBI, and White House of?cials we interviewed characterized the events immediately surrounding the issuance '74 In a closed session of the Senate Select Committee on Intelligence on June 26, 2007, Carney described his belief regarding the new language, stating, ?[T]here were some additions to the text that were an effort by someone to try and fix the record in some respect.? APPROVED FOR PUBLIC RELEASE of the March 11, 2004, Presidential Authorization in dramatic, sharp terms. Several of the Department witnesses described the impasse as a ?crisis? and described a sense of distrust and anger that permeated their relations with White House of?cials during this period. In a letter of resignation that Corney wrote but did not send, he described this period as an ?apocalyptic situation.? In this section, we describe the reactions of Department, FBI, and White House of?cials to the White House decision to continue the program without the support of the Justice Department. (U) 1. Initial Responses of Department and FBI Of?cials (U) White House Chief of Staff Card informed Comey by telephone on the morning of March 11, 2004, that the President had signed the new Authorization that morning. At approximately noon, Gonzales called Goldsmith to inform him that the President, in issuing the Authorization, had made an interpretation of law concerning his authorities and that the Department should not act in contradiction of his determinations. Goldsmith took notes on the call. According to his notes, Goldsmith asked Gonzales, ?What were those determinations?? and Gonzales responded that he would let Goldsmith know. Later that day, Gonzales called Goldsmith again and told him that OLC should continue working on its legal analysis of the program. In a third call that day, however, Gonzales directed Goldsmith to suspend work on the legal analysis and to decline a request from the CIA General Counsel to review a draft of the new OLC memorandum. (JESHS-I-H-N-F) Goldsmith followed up this series of calls with a letter to Gonzales seeking clari?cation on Gonzales?s instructions. Goldsmith wrote that he interpreted the March 11, 2004, Authorization signed by the President to mean that ?the President has determined the legality of [the program] in all respects based upon the advice and analysis of your of?ce, and that of?cers of the Department of Justice should refrain from calling into question the legality of [the program], or from undertaking further legal analysis of it.? In the letter Goldsmith recounted how Gonzales had then called him to advise that OLC should continue its legal analysis of the program, adding, am now uncertain about your direction based on the President?s exercise of his authority.? Goldsmith concluded his letter by reiterating position that its existing legal memoranda ?should not be relied upon in support for the entire program.? Goldsmith described the document he wrote as a ?for the record? Ietter.175 As described below, Goldsmith and Philbin delivered Goldsmith said he discussed a draft of the letter with Carney, Rosenberg, Ayres, Olson, and others and edited it based on their suggestions. (U) APPROVED FOR PUBLIC RELEASE this letter to Gonzales at his residence at approximately 1 1:00 p.m. that night. At noon on March 1 1, 2004, Director Mueller met with Card at the White House. According to Mueller?s program log, Card summoned Mueller to his of?ce to bring Mueller up to date on the events of the preceding 24 hours. Card recounted for Mueller the brie?ng of the congressional leaders the prior afternoon and the President?s issuance of the new Authorization without the Department?s approval. In addition, Card told Mueller that if no ?legislative fix? could be found by May 6, 2004, when the current Authorization was set to expire, the program would be discontinued. According to Mueller?s notes, Card acknowledged to Mueller that President Bush had sent him and Gonzales to the hosPital to seek Ashcroft?s certi?cation for the March 11, 2004, Authorization, but that Ashcroft had said he was too ill to make the determination and that Comey was the Acting Attorney General. Mueller wrote in his program log that he told Card that the failure to have Department of Justice representation at the congressional brie?ng 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.? Card responded that he and Gonzales were unaware at the time of the hospital visit that Comey was the Acting Attorney General, and that they had only been following the directions of the President. Mueller reminded Card that Mueller had told Vice President Cheney during their March 9, 2004, noon meeting that Mueller could have problems with the continued involvement in the program if the White House issued an Authorization without the Department?s approval. Card said he understood Mueller?s concern and told him to stop by Gonzales?s office to pick up a copy of the March 1 1, 2004, Authorization, which Mueller did. Mueller met with Comey at 1:15 pm. to review the Authorization, and he left a copy of it with Comey. During this meeting, Mueller told Comey he would be submitting a letter to Comey requesting advice on the legality of the continued participation in the program.?6 176 According to the Mueller?s program log, Gonzales called Mueller at 2:50 pm. to tell him to ?assure security of copy of President?s order.? (U) APPROVED FOR PUBLIC RELEASE WW Later that day, Mueller sent Comey a memorandum, prepared by FBI General Counsel Valerie Caproni and an FBI Deputy General Counsel, seeking guidance on how the FBI should proceed in light of recent developments. The memorandum asked whether FBI agents detailed to the NSA to work on Stell Office of Intelligence Policy and Review (OIPR) Counsel James Baker also expressed his concern about the White House?s action. On the evening of March 1 1, 2004, he drafted a memorandum to Comey containing what he later described as a series of ?loaded questions? concerning whether it was ?lawful and ethical? for OIPR to continue ?ling applications with the FISA Court under the circumstances. 177 Goldsmith and Philbin called Gonzales late in the evening of March 11 to ask if they could visit him at his residence to deliver the letter Goldsmith had written earlier in the day. As described above, Goldsmith sought to make a record of his earlier conversations with Gonzales in which Goldsmith believed Gonzales had conveyed con?icting instructions regarding how OLC should proceed in light of the President?s issuance of the March 11 Authorization. Gonzales told us that Goldsmith drafted the letter because Goldsmith was ?confused? about whether OLC should continue working on its legal analysis of the program. Gonzales said he recalled that Goldsmith and Philbin were ?somber? during the meeting at his house. Gonzales said that he told them that the President had decided to go forward with the program, but that they should continue working to resolve the outstanding legal questions they had and try to ?nd a solution. He said he tried to convey to them his con?dence that everyone would ?get through this.? Goldsmith and Philbin told us that Gonzales was very cordial during the meeting and expressed regret for having gone to Ashcroft?s hospital room that evening. Philbin stated that initially he believed that Gonzales had instructed him and Goldsmith ?not to do our job, not to determine what the law is,? but that it became evident to him that Gonzales ?wanted to do the legally right thing.? Goldsmith also stated that as a general proposition '77 These issues are described in Section II of this chapter in connection with the Department?s meetings with FISA Court Presidin Jud Kollar?Kotelly to discuss the use in FISA applications of information derived fro collected under the program following the March 11, 2004, Presidential Authorization and its subsequent modi?cations. APPROVED FOR PUBLIC RELEASE he encountered more ?pushback? from Addington than from Gonzales, and that Gonzales ?wanted to do the right thing.? 98%? 2. Department and FBI Of?cials Consider Resigning (U) Corney told us he drafted a letter of resignation shortly after the incident in Ashcroft?s hospital room on March 10. Comey said he drafted the letter because he believed it was impossible for him to remain with the Department if the President would do something the Department said was not legally supportable.173 (U) Comey also testi?ed that Ashcroft?s Chief of Staff David Ayres believed Ashcroft also was likely to resign and urged Comey to wait until Ashcroft was well enough to resign with him. In written responses to Senator Charles Schumer following his testimony, Comey wrote that he believed the following individuals also were prepared to resign: Goldsmith, Philbin, Chuck Rosenberg, Daniel Levin, James Baker, David Ayres, Deputy Chief of Staff to the Attorney General David Israelite, and Director Mueller. Comey also responded to the question that he believed that ?a large portion? of his staff also would have resigned if he had. (U) Goldsmith told us he was ?completely disgusted? by his recent meetings with White House of?cials in connection with the Stellar Wind program and that he drafted a resignation letter at around the same time as Corney. The OIG obtained a handwritten list Goldsmith had compiled as these events were taking place to memorialize his grievances with the White House?s actions during this period. The list includes: 0 the ?[s]hoddiness of the whole thing,? which Goldsmith told us referred to his belief that both the process by which the program was implemented and the substantive analysis underpinning it represented the extreme opposite of how to manage a program as important as the White House claimed Stellar Wind to be; 173 The letter was addressed to President Bush. Also, at 5:46 pm. on the evening of March 1 1, 2004, Comey sent an e-mail to two Department colleagues stating in part: I have been through the roughest patch of my professional life in the last 24 hours. You would not believe what has gone hugely upset about the conduct of certain members of the executive branch. But I am also hugely proud of the Department of Justice, including SG, Associate AG, OLC, Ayres, my staff, the AG, and even Mrs. Ashcroft. I believe this has been our ?nest hour, although it is not over yet. . . . I suspect I will either be ?red by the President or quit, but I will haVe done the right thing for my country. (U) APPROVED FOR PUBLIC RELEASE WSW both in terms of not reading in attorneys at the Justice Department and other agencies, and not keeping Congress informed; the hospital incident, which Goldsmith described as ?shameful?; ?[d]isregard of law? on the part of the White House (a reference Goldsmith did not expand upon with more speci?city during his interview with the 01(3); and the White House?s claim that a legislative ?x could be achieved, which Goldsmith regarded as ?irresponsible? because he believed at the time that a legislative remedy was not a viable option. Goldsmith described three additional items on the list in particular as ?false representations? by the White House: a ?[1]ies re shutting down,? referring to the White House?s assurances to Goldsmith on several occasions that it would shut down the program if the Of?ce of Legal Counsel could not ?nd legal support for it; ?[l]ies re telling [the President] of problem,? referring to representations that the President had been kept informed of the Department?s concerns about the program; and I assertions by White House of?cials that they know AG was incapacitated?. Goldsmith stated that on Thursday, March 1 1, Ayres asked him not to resign because the Attorney General should have the chance to do so ?rst once he had fully recovered from his surgery. Goldsmith said he was still ?on the fence? the following Monday or Tuesday about resigning and that there was great concern that his and other resignations would ?spark a panic? that might lead to the program being revealed publicly. 179 (U) Philbin told us that there was an ?eerie silence? at the Department on March 1 as he and others awaited word from the White House on the fate of the program. Philbin said he and others believed they would have to resign. Philbin said his primary concern was that the White House planned to go forward with the Presidential Authorization and continue the program '79 Goldsmith ultimately tendered his resignation in June 2004, effective July 30, 2004. Goldsmith told us he resigned in part because he did not believe he could be an effective head of the Of?ce of Legal Counsel after his ?unprecedented? withdrawal of several legal memoranda, including those drafted by Yoo. Goldsmith added that he also resigned because he was ?exhau?ed? from his work in OLC and had recently been offered a. teaching position at Harvard Law School. (U) APPROVED FOR PUBLIC RELEASE despite the ?aws that the Of?ce of Legal Counsel had identi?ed in its legal analysis. Philbin said he was ?absolutely serious? about resigning, adding, they?re going to try to strong-arm the guy on morphine, what else are they going to do?? Baker told us that he also considered resigning after the President signed the Authorization but ultimately decided to remain in his position, in part because of his fear that if the White House was willing to tolerate mass resignations of senior government of?cials rather than revise the Stellar Wind program, don?t know what this means in terms of the rule of law in this country.? Baker also stated that he knew he had certain protections from removal for a period of time because he was a career of?cial and that he wanted to remain as Chief of OIPR to protect the government?s relationship with the FISA Court and to protect the attorneys in his of?ce. asasame Levin said he was Willing to resign over the matter, and he gave a signed resignation letter to Comey to be used by him ?however [he] felt appropriate.? Levin said he did so ?if it would help to get the White House to change its mind.? Levin certain he shared Goldsmith?s View that the was legally without support, he thought the White House?s conduct during the incident at the hospital had been ?outrageous? and he was willing to resign on that basis alone. WW FBI General Counsel Caproni told us that she also was prepared to resign. She said that the primary concern regarding the impasse between the Department and the White House over the program was not with issues of privacy and civil liberties, but rather with ?the rule of law.? 95%? At approximately 1:30 a.m. on March 12, 2004, Mueller drafted by hand a letter stating, in part: ?[A]fter reviewing the plain language of the FISA statute, and the order issued yesterday by the President . . . and in the absence of further clari?cation of the legality of the program from the Attorney General, I am forced to withdraw the FBI from participation in the program. Further, should the President order the continuation of the participation in the program, and in the absence of further legal advice from the AG, I would be constrained to resign as Director of the Mueller told us he planned on having the letter typed and then tendering it, along with his March 11, 2004, memorandum to Comey, but that based on subsequent events his resignation was not necessary. APPROVED FOR PUBLIC RELEASE WW 3. Comey and Mueller Meet with President Bush (U) On the morning of March 12, 2004, Comey and Mueller went to the White House to attend the regular daily threat brie?ng with the President in the Oval Of?ce. Comey said that following the brie?ng President Bush called him into the President?s private study for an ?unscheduled meeting.? (U) Comey told us that President Bush said to him, ?You look burdened.? Comey told the President that he did feel burdened, to which the President responded, ?Let me lift that burden from you.? Comey told the President that he felt as if he were standing on railroad tracks with a train coming toward him to run over his career and can?t get off the tracks.? (U) Comey said he then explained to the President the three baskets of Stellar Wind collection and the issues and problems associated with each. President Bush responded with words to the effect, ?You whipped this on me? all of a sudden, that he was hearing about these problems at the last minute, and that the President not being told of these developments regarding the program was ?not fair to the American people.? Comey responded that the President?s staff had been advised of these issues ?for weeks,? and that the President was being ?poorly served? and ?misled? by his advisors. Comey also said to the President, ?The American people are going to freak when they hear what collection is going on.? President Bush responded, ?That?s for me to worry about.? According to Comey, the President said that he just needed until May 6 (the date of the next Authorization), and that if he could not get Congress to ?x FISA by then he would shut down the program. The President emphasized the importance of the program and that it ?saves lives.? Comey told the President that while he understood the President?s position he still could not agree to certify the program. Comey said he then quoted Martin Luther to the President: ?Here I stand, I can do no other.? At the end of the conversation, Comey told the President, ?You should know that Bob Mueller is going to resign this morning.? The President thanked Comey for telling him that and said he would speak with Mueller next. Comey said his conversation with the President lasted approximately 15 minutes. Following the conversation, Comey went to Mueller, who was waiting in the West Wing, and started discussing his meeting with the APPROVED FOR PUBLIC RELEASE President. Word was then sent to Mueller through a Secret Service agent that the President wanted to meet with him.130 (U) Mueller later made notes in his program log about his meeting with President Bush. According to his notes, the President told Mueller that he was ?tremendously concerned? about another terrorist attack and that he had been informed that the Stellar Wind program was essential to protecting a ainst another attack. The President cited an on oin investi ati a The President said he believed that he would be ?justly held accountable? if he did not do everything possible to prevent another attack. The President explained to Mueller that for these reasons he had authorized the continuation of the program even without the concurrence of the Attorney General as to the legality of ?various aSpects of the program.? WSW According to the notes, the President told Mueller that the congressional leadership had been briefed on the President?s action to extend the program and was ?understanding and supportive of the President?s position.? The President also told Mueller that he had urged Comey to agree to extend the program until May 6 and that he hoped for a legislative ?x by that time, but that if no legislative solution could be found and the legality of the program was still in question by that time, he ?would shut it According to Mueller?s notes, Mueller told the President of his concerns regarding the continued participation in the program without an opinion from the Attorney General as to its legality, and that he was considering resigning if the FBI were directed to continue to participate without the concurrence of the Attorney General. The President responded that he ?wished to relieve any burden [Mueller] may be laboring under? and that he did not want Mueller to resign. Mueller said he explained to the President that he had an ?independent obligation to the FBI and to the Justice Department to assure the legality of actions we undertook, and that a presidential order alone could not do that.? '30 At this point (9:27 Comey sent an e-mail from his Blackberry to Goldsmith, Philbin, Ayres, Levin, and others, stating: President just took me into his private of?ce for 15 minute one on one talk. Told him he was being misled and poorly served. We had a very full and frank exchange. Don?t know that either of us can see a way out. He promised that he would shut down 5/6 if Congress didn't ?x FISA. Told him Mueller was about to resign. He just pulled Bob into his of?ce. APPROVED FOR PUBLIC RELEASE According to Mueller?s notes, the President expressed understanding for Mueller?s position and asked what needed to be done to address Mueller?s concerns. Mueller responded that Comey, the Of?ce of Legal Counsel, the CIA, and the NSA ?needed to sit down immediately? and assess the legal status of the program in light of doubts about the existing legal rationale and the March 1 1, 2004, Authorization. Mueller wrote: The President questioned me closely on the impact on national security from discontinuing elements of the program. According to Mueller?s notes, the President then directed Mueller to meet with Comey and other principals to address the legal concerns so that the FBI could continue participating in the program ?as appropriate under the law.? Mueller told us he met with Comey an hour later to begin coordinating that effort. At 4:50 pm. that afternoon, Mueller called Gonzales to request that additional Department lawyers be read into the program.181 Mueller told us that this request originated with Comey and that Mueller was merely acting as an ?intermediary.? (U) The President?s direction to Mueller to meet with Comey and other principals to address the legal concerns averted the mass resignations at the Department and the FBI. According to Comey and other Department of?cials, the White House?s decision to seek a legal solution and allow more attorneys to be read into the program was a signi?cant step toward resolving the dispute, and in the words of one Department of?cial provided a way of ?stepping back from the brink.? As we describe below, these Department of?cials still faced the challenge of finding a legal and operational remedy for the program that would address the concerns of the White House, the NSA, and Department. 4. Comey Directs Continued Cooperation with NSA (U) On the morning of March 12, 2004, Comey decided not to direct OIPR and the FBI to cease cooperating with the SA in conjunction with the program. Corney?s decision is documented in a l?page memorandum from 13' At least three additional Department attorneys were read into the program on March 12, 2004, including OIPR Acting Deputy Counsel for Intelligence Operations Peggy Skelly-Nolan and two OLC attorneys. (U) APPROVED FOR PUBLIC RELEASE WW Goldsmith to Comey in which Goldsmith explained why Comey?s action was legal In his memorandum, Goldsmith stated that the President, as . Commander-in?Chief and Chief Executive with the constitutional duty to ?take care that the laws are faithfully executed,? made a determination that Stellar Wind, as practiced, was lawful. Goldsmith concluded that this determination was binding on the entire Executive Branch, including Comey in his exercise of the powers of the Attorney General.182 5. Department Conducts Additional Legal Analysis (U) On March 12, 2004, an interagency working group was convened to continue the legal analysis of the program. In accordance with the President?s directive to Mueller, of?cials from the FBI, NSA, and the CIA were brought into the process, although the OLC maintained the lead role. The working group included Deputy Solicitor General Clement, Baker, FBI General Counsel Caproni, Mueller, and several attorneys from OLC. Comey said CIA Director Tenet and his Deputy, McLaughlin, may have had limited participation as well. On March 13, Mueller asked NSA Director Hayden to assist FBI General Counsel Caproni in assessing the value of the Stellar Wind program. Mueller said he wanted Caproni to become more familiar with the program and to understand how the View of the value of the program ?33 Goldsmith told us his determination that the entire Executive Branch was bound by the President?s interpretation of law was based on his discussions with several other Justice Department attorneys, as well as on long?standing OLC precedent. (U) APPROVED FOR PUBLIC RELEASE compared with that of the NSA.133 Mueller said that Hayden provided slides highlighting cases in which the NSA believed Stellar Wind-derived information proved useful. Caproni told us that during this March 2004 period she and two other FBI of?cials made an effort to determine what value the FBI was getting from Stellar Wind?derived information. She explained that it was dif?cult to assess the value of the program during its early stages because FBI ?eld offices at that time were not required to report back to FBI Headquarters with information about how information from the NSA program had been used.134 On the afternoon of Sunday, March 14, 2004, the Department convened a large meeting in the Justice Command Center to review analysis on the legality of the program. Mueller, Comey, Goldsmith, Philbin, Baker, CIA General Counsel Muller, Caproni, Tenet, Hayden, Olson, Clement, and several NSA lawyers attended the meeting. Prior to the meeting, Goldsmith and Philbin prepared a detailed outline of current analysis, which Goldsmith described to us as his ?most honest take? of the legal issues at that time. Goldsmith said he distributed the outline to meeting participants and used it to walk the group through the analysis. (U) 133 Caproni had been appointed the FBI General Counsel in August 2003 and was read into the Stellar Wind program in September or October 2003. She told us she did not give much thought to the program at the time because OLC had determined that it was legal. She stated that in 2004 she learned that OLC was re-examining Yoo's legal analysis and had concerns with it. She told us she later spoke with Philbin, who con?rmed to her that he and Goldsmith had problems with the legal support for the program and that he was frustrated because the program was so compartmented that he could not talk to anybody about it. Caproni told us that at some point she obtained a copy of Yoo?s legal opinion. She stated that after reading it she immediately understood Philbin?s concerns because the opinion appeared to lack analysis and simply concluded that the program was legal-9W? ?34 Electronic Communications Analysis Unit compiled a summary of knoivn?eStelIar Wind tip results from January 1, 2003, through mid-December 2003. However, the data included in the summary was incomplete, and the sum contain any analysis of the effectiveness of these tips. Another study of the tippers was conducted in 2006. The results of that study are discussed in Chapter Six of this report, along with the OlG?s analysis of the effectiveness of the program. APPROVED FOR PUBLIC RELEASE WW 1'55 Goldsmith also noted that as of the March 14, 2004, meeting, the Attorney General had not yet reported to Congress on the program under 28 U.S.C. 530D. However, as discussed above, the White House had briefed the congressional leadership about the program on March 10, 2004. In addition, the former Presiding Judge of the FISA Court, Royce Lamberth, and the current Presiding Judge, Colleen Kollar-Kotelly, had been read into the program by this time. (U) APPROVED FOR PUBLIC RELEASE WSW-SW APPROVED FOR PUBLIC RELEASE APPROVED FOR PUBLIC RELEASE 49W Goldsmith told us that during his presentation of the legal analysis at the March 14 meeting he received ?tough but fair and appropriate? uestions from Mueller and Olson with res ect to wh the ll uni-Lu: II Illevn- n. I Goldsmith told us that the March ?14 meeting was designed to achieve full consensus among the principals on the issues, and that the meeting was successful in this regard. (U) That evening, Mueller called Gonzales to re art that re ress had been made, although legal support for? still had not been found. Mueller also told Gonzales that in the future Gonzales should speak directly with Comey on these matters. 6. Comey Determines that Ashcroft Remains ?Absent or Disabled? (U) Attorney General Ashcroft was released from the hospital at noon on March 14, 2004. The next day, Comey advised Ayres by memorandum that Ashcroft?s doctor believed that Ashcroft required additional time to recuperate at home and was not yet ready to resume his responsibilities as Attorney General. Comey?s memorandum noted that the doctor intended to reassess Ashcroft?s condition on March 24, 2004. Comey?s memorandum stated that, based on these circumstances, Comey continued to believe that Ashcroft was ?absent or disabled? within the meaning of 28 U.S.C. 508(a). Corney?s memorandum concluded: As before, notwithstanding my continued temporary capacity as Acting Attorney General, I intend, where possible, to exercise ?all the power and authority of the Attorney General? pursuant to the authority that 28 C.F.R. 0.15(a) delegates to me in my regular capacity as Deputy Attorney General. (U) APPROVED FOR PUBLIC RELEASE 49W A copy of the memorandum was sent to Gonzales at the White House and to senior Department of?cials.139 (U) 7. Judge Kollar-Kotelly Briefed on Lack of Attorney General Certi?cation (U) As discussed earlier in this report, the extent to which OIPR could use Stellar Wind-derived information in FISA applications had been limited by Judge Kollar-Kotelly, the FISA Court?s Presiding Judge. After her read-in to the program in May 2002, Judge Kollar?Kotelly had directed OIPR to continue, with some modi?cations, the ?scrubbing? procedures for FISA applications in place at that time. (38W According to an OLC memorandum, on March 14, 2004, Judge Kollar~Kotelly was informed that the President had reauthorized the Stellar Wind program, but that the latest Authorization lacked the Attorney General?s certi?cation as to form and legality.19? The memorandum indicated that as a result of Judge Kollar-Kotelly?s uncertainty about the implications of this development, she intended to insist on a complete separation of any information derived from Stellar Wind, whether directly or indirectly, from all FISA applications presented to the FISA Court. The memorandum noted that ?[b]ecause of the way tips get worked into (and lost in) the mix of intelligence information, that standard would have virtually crippled all counter-terrorism 8. Comey and Gonzales Exchange Documents Asserting Con?icting Positions (U) According to Mueller?s program log, on the morning of Monday, March 15, 2004, following the daily threat brie?ng in the White House Situation Room, President Bush remarked to Mueller that he understood ?progress had been made,? referring to the discussions on the legal basis for the Stellar Wind program. Mueller called Comey shortly thereafter to convey the President?s remark. Mueller suggested to Comey that additional brie?ngs on the program should be given to Congress, including to both the House and Senate Judiciary Committees. Also on March 15, Goldsmith drafted for Comey a 3--page memorandum summarizing views with respect to the legality of the program. The memorandum recast in narrative form Goldsmith?s outline of As discussed below, Ashcroft?s doctors later cleared Ashcroft to resume his duties as Attorney General as of March 31. (U) '90 The memorandum was prepared in anticipation of a brie?ng for the Attorney General on March 30, 2004. (U) APPROVED FOR PUBLIC RELEASE March 14, 2004 (discussed above), and noted that OLC had not reached any ??nal conclusions and [was] not yet prepared to issue a ?nal opinion on the program.? The memorandum also stated that the Stellar Wind program potentially implicated various congressional and mtra?Executive Branch reporting requirements imposed both by statute and Executive Order. The memorandum stated that OLC was only beginning to analyze these reporting issues. Goldsmith and Philbin went to see Gonzales on the afternoon of March 15 to explain what OLC had determined in its legal analysis to that point, and also to notify Gonzales that he would be hearing from Comey shortly about the Department?s position as to the program?s legality. (U) According to Philbin?s contemporaneous notes on the events of the next two days, on March 16, 2004, following the morning threat brie?ng at the White House, Comey told President Bush that OLC had finished its preliminary legal analysis of the program. 1'91 Comey asked the President if Comey should convey the details of the analysis to Gonzales, and the President indicated that Comey should do so. After Comey returned to the Department, he signed a short memorandum to Gonzales that he had drafted the night before. In the memorandum, Comey ?rst recounted how the President on March 12, 2004, had directed the Justice Department to continue its analysis of the Stellar Wind program and to ?provide its best advice concerning ways to change the program to conform with the Justice Department?s understanding of the applicable law.? Comey then described the composition of the working group convened to accomplish this objective and how the group?s efforts had resulted in Goldsmith?s 3?page analysis, which Corney attached to his memorandum. Comey then set out his advice to the President. According to the memorandum, Comey advised that the President may lawfully continue usns, requiring legally aggressiveri??eed, novel supporting arguments . . . Corney further wrote that the De artment remained unable to find a legal basis to Accordin 1 Come advised that such '91 Philbin told the OIG he kept notes of these events because Comey had asked him to ?keep a record.? (U) APPROVED FOR PUBLIC RELEASE WW Finall Come cautioned a' 'e 1eve ongomg co ec on raised ?serious issues? about congressional noti?cation, ?particularly where the legal basis for the program is the President?s decision to assert his authority to override an otherwise applicable Act of Congress.? Comey wrote that the Department would continue to explore the noti?cation issue. Comey instructed Goldsmith and Philbin to hand deliver the memoranda to Gonzales at the White House, which they did. Philbin also delivered copies to Solicitor General Olson. Philbin?s notes indicate that Olson was ?annoyed? that Comey had sent the memoranda to the White House without consulting him, and asked Philbin several times, ?What?s my role supposed to be here?? Olson also said to Philbin that he thought the memoranda were a ?poke in the eye? to the White House. Philbin wrote that Olson?s reaction ?raised concerns that [Comey] may have gotten himself too far out there alone? by not bringing Olson in on the Department?s legal opinion in advance. (U) Comey told us that he knew his memorandum would anger people at the White House because he had put in writing the arguments questioning the legality of aspects of the program and that the memorandum and Gold?smith?s attachment would become a part of the Presidential records and would be discovered later by historians. He stated he believed it was important to ?make a record.? (U) According to Mueller?s program log, Gonzales called Mueller at 1:45 pm. on March 16 to discuss the situation. Gonzales explained to Mueller ent?s tentative conclusion that legal support for was still lacking, Gonzales would have to make a recommendation to the President on how to proceed. Gonzales told Mueller he needed to know whether Mueller would resign if the President decided Mueller responded that he would have to take time to consider his actions, but that he ?would have to give it serious consideration if the President decided to go ahead in the face of ?nding.? Later that afternoon on March 16, Card called Comey to the White House for a meeting. According to Philbin?s notes, ?the back channel word from Jud Gonzales? was that President Bush might be willing to Prior to the meeting, Comey, Goldsmith, and Philbin agreed that Comey should be read to conve to the the De artment would an or WSW APPROVED FOR PUBLIC RELEASE Philbin?s notes indicate that at the meeting Car nt was ?wrestling? with the issue of whether to and would decide ?very soon.? Card also expressed to Comey his di5pleasure that Corney had put in writing the Department?s position on the legality of the program. That evening, while attending a farewell dinner for a Department colleague at a local restaurant, Philbin received a call from David Addington indicating that he wanted to deliver a letter Gonzales had written to Comey. Philbin met Addington at the Department at 8:30 p.m. that night to accept the letter. Philbin?s notes also indicate that Gonzales had called Comey in advance to tell Comey ?not to get too overheated by the letter.? (U) Carney told us he recalled that Gonzales told him in the call that the White House would agree to work with the Department to fix the program and that Comey should not ?overreact? to Gonzales?s letter. Comey said he believed Addington, and not Gonzales, had actually drafted the letter, and that Gonzales sent it only to counter Comey?s memorandum and to make a record on behalf of the White House. (U) Gonzales?s letter stated that the President had directed him to respond to Comey?s memorandum. The letter stated: Your memorandum appears to have been based on a misunderstanding of the President?s expectations regarding the conduct of the Department of Justice. While the President was, and remains, interested in any thoughts the Department of Justice may have on alternative ways to achieve effectively the goals of the activities authorized by the Presidential Authorization of March 11, 2004, the President has addressed de?nitively for the Executive Branch in the Presidential Authorization the interpretation of the law.?2 The letter also excerpted the language of paragraph 10 from the March 11, 2004, Authorization, which recited the bases on which the President acted to reauthorize the program, and then concluded: ?Please ensure that the Gonzales?s letter also addressed Comey?s comments about congressional noti?cation. Citing Department of the Navy 12. Egan, 484 US. 518 [1988) and a 2003 OLC opinion, Gonzales's letter stated that the President has the constitutional authority to define and control access to the nation?s secrets, "including authority to determine the extent to which disclosure may be made outside the Executive Branch.? APPROVED FOR PUBLIC RELEASE Department of Justice complies with the direction given in the Presidential Authorization.?193 WW effective at midnight on March 26, 2004. "According?to"Mueller?program log, Gonzales called Comey to advise him of the President?s decision on March 17, 2004, and Comey passed this information to Mueller later that day. Comey, in an e?mail dated March 17, expressed relief at the President?s decision, writing: Today, in a remarkable development, we stepped back from the brink of disaster. All seems well in the Government. The right thing was done. Gonzales told the OIG during his interview that he could not say whether the prospect of resignations at the Department and the FBI may have had an impact on the President?s decision.194 We were not able to interview others at the White House to determine what speci?cally caused the program to be modi?ed in accord with the Department?s legal position. (U) The President?s directive was expressed in two modifications to the March 11, 2004, Presidential Authorization. These modi?cations, as well as the operational and legal implications of the President?s decision for the Department and the FBI, are described in the next sections. 1. March 19, 2004, Modi?cation (U) On March 19, 2004, the President signed, and Gonzales certi?ed as to form and legality, a Modi?cation of the March 1 1, 2004, Presidential 1'93 Corney stated that he did not believe Gonzales wrote this letter. He stated that ?Addington was the ?ame-thrower? and that Gonzales was generally more reasonable and moderate. Comey said that Gonzales had later apologized to both Comey and Ashcroft for his conduct during the March 10 incident at the hospital and had even come around to agree with Philbin and Goldsmith?s analysis regarding the program. Gonzales told the 01G that he did not apologize to Ashcroft for the incident in the hospital because he had been instructed by the President to go there, but stated that he ?regretted? the incident. (U) However, when Gonzales commented on a draft of this report, he told the OIG that the prospect of resignations at the Department and the FBI were not the reason for the President's decision. Gonzales stated that he could not elaborate on this statement due to executive privilege considerations. (U) APPROVED FOR PUBLIC RELEASE A thorization. The ?rst ara ra of the Modi?cation stated that the existing Au 0 iz tion and a third irn ortant change affecting all Authorizations. these changes were to become effective beginning at midnight on Modi?cation, March 19, 2004, ara. 2 a italics and brackets added . This additional Ian a 6 resulted in The language, deleted language in brackets and the insertion indicated in italics, was: APPROVED FOR PUBLIC RELEASE Third the March 19 Modi?cation Modification, March 19, 2004 Each Presidential Authorization had contained a directive to the Secretary of Defense not to disclose the program outside the Executive Branch without the President?s approval. The Modi?cation reiterated that any change was not intended to reverse the President?s control over access to the program. WW The ultimate diSposition of this previously obtajne was subsequently addressed in an April 2, 2004, Modification, and thereafter an August 2004 Presidential memorandum to the Secretary of Defense, as described below in subsection 6. APPROVED FOR PUBLIC RELEASE ?95 Bradbury was nominated to be Assistant Attorney General for OLC in June 2005. He was not con?rmed for this position, and told us that after exhausting the time period for use of the ?Acting? title under the Vacancies Reform Act of 1998 (see 5 U.S.C. 3345 et seq.) in April 2007, he reverted to Principal Deputy Assistant Attorney General, the position he had held prior to his nomination. As head of OLC, Bradbury became responsible for brie?ng members of Congress on legal analyses concerning the program as well as on the Presidential Authorizations. Bradbury?s access to these documents and the of?cials responsible for drafting them provided him signi?cant background information on the changes to the program. (U) 197 APPROVED FOR PUBLIC RELEASE APPROVED FOR PUBLIC RELEASE [Cont?d.) APPROVED FOR RELEASE ?le-PW APPROVED FOR PUBLIC RELEASE WSW Anal sis Re ardin As noted above, Judge Kollar-Kotelly was made aware on March 14, 2004, that the March 11 Authorization had been signed by the President APPROVED FOR PUBLIC RELEASE but had not been certi?ed as to form and legality by the Justice Department. On March 18, 2004, Goldsmith, Philbin, Baker, and Gonzales met with Judge Kollar-Kotelly to further brief her on the status of the program. According to an internal OLC memorandum, they advised her that forthcoming legal opinions from OLC would allay her concerns about the use of program-deriVed information in FISA applications.202 The OIG reviewed a handwritten letter from Judge Kollar?Kotelly to OIPR Counsel Baker which a cared to have been written just after the initiation mandated in the March 19, 2004, Modi?cation. Baker told us that the handwritten letter should be viewed as an informal draft designed to convey Judge Kollar?Kotelly?s preliminary understanding of the issues raised by the changes to the Stellar Wind program. In the letter, Judge Kollar-Kotelly reiterated her position that Stellar Wind-derived information should be excluded from FISA applications, writing, ?so there is no misunderstanding, I will not sign a FISA application which contains any information derived from and or obtained from the [Stellar Wind] program,? including applications in which a Stellar Wind tip ?was the sole or principal factor in starting an investigation by any of the agencies, even if the investigation was conducted independently of the tip from [Stellar Wind].? Judge Kollar-Kotelly also requested, as a precondition to her agreeing to sign FISA applications in the future, that OIPR clarify in writing its proposal for reviewing FISA applications to ensure that all Stellar Wind?derived information had been excluded. Baker told us that he had a lot of ?verbal back and forth? with Judge Kollar?Kotelly to explain scrubbing procedures. ese legal opinions, which addressed the legality of- were provided to Judge Kollar-Kotelly in late March and "Eilily'??i? 26bit? M3 Chapter Three, Section II contains a description of this process. (U) APPROVED FOR PUBLIC RELEASE WW On March 26, 2004, OLC completed a draft memorandum for Baker entitled ?Use or Disclosure of Certain Stellar Wind Information in Applications Under This memorandum addressii in FISA applications of information derived indirectly fro .205 OLC also provided Judge Kollar-Kotelly with a copy of its draft legal analysis.205 204 This argument is discussed below in connection with Goldsmith?s May 6, 2004, legal analysis. (U) 205 With respect to the memorandum stated that the Department did not believe the acquisition of such information was subject to any constitutional restraints or statutory restrictions, but that ?[tlo the extent Judge Kollar-Kotelly has concerns about those conclusions, we note that the analysis in this memorandum independently demonstrates that there are no legal restrictions on the use of information indirectly derived fro tippers in FISA applications.? WW 20" The draft memorandum did not address inclusion in FISA applications of information derived directly from the program because OIPR had successfully managed to address Judge Kollar?Kotelly?s order to exclude such information. APPROVED FOR PUBLIC RELEASE 6. -Modification (U) Attorney General Ashcroft?s doctors cleared him to resume his duties as Attorney General as of March 31. Comey advised Ayres in a March 30, 2004, memorandum that as of 7:00 a.m. on March 31, the Attorney General was no longer ?absent or disabled? within the meaning of 28 U.S.C. 508(a), and that as of that time Corney could no longer exercise the duties of the Office of Attorney General pursuant to the statute. A copy of the memorandum was sent to White House Counsel Gonzales and other senior Department of?cials. (U) On_President Bush signed, and Gonzales certi?ed as to form and legality, a second Modi?cation of the March 11 2004 Presidential Authorization. This modi?cation addressed only? _activities of the Stellar Wind program. WSW APPROVED FOR PUBLIC RELEASE 307 An April 5, 200 oldsmith memorandum to ?le stated that OLC worked with Addington to craft the new standard. 203 Bradburv distin ished the limitation on APPROVED FOR PUBLIC RELEASE Standard is Conveyed to 11y authorized in the Modi?cations and subsequent Humorlza?ons were FBI employees responsible for tipping Stellar Wind information to the ?eld. A former Unit Chief in the Communications Analysis Unit (CAU) within the Communications Exploitation Section (CXS) of the Counterterrorism Division told us he became aware that at some poi sco of collection under Stellar Wind was narrowed to include onl *He said this information was passed along to him and ers at the FBI during eith terly meeting with SA representatives. He said thempractice was ?taken very seriously? by the SA. As an examp 6, he said that Requests for Information RFI from the FBI to the NSA on numbers not associated with ?were rejected by the NSA as outside the sc0pe of the revised Authorization. WSW An FBI Supervisory Special Agent in the unit co?located at the - NSA (called Team 10), told us that when he ?rst analysis work under the program, were ?fair ame.? He recalled oint the scope of collec He said that was rigorously adhered to and was ?scrutinized very closely.? He said that when the FBI requested that the NSA collect information on a particular number, the NSA closely analyzed the number and requested supporting information from the FBI before querying the Stellar Wind database. This supervisor also stated that the NSA did a good job of keeping the co-located FBI personnel informed of changes to the scope of collections. He said this information typically would be conveyed to appropriate personnel during the daily ?all hands meetings.? 8. Of?ce of Legal Counsel Assesses Compliance with New Collection Standards FPS-H-Siff?rr Goldsmith told us that during the week of March 29, 2004, he and Philbin COWC Stellar Wind program to ensure that the queryng 0 was being conducted in accordance with the Presidential Authorizations. APPROVED FOR PUBLIC RELEASE WW Goldsmith said that while resources were not available to conduct a ?professional? audit, he visited the SA of?cials the legal parameters for queryin which as discussed above required a showing of reasonable articulable suspicion that the target belonged to a group that was engaged in international terrorism.209 Goldsmith told the OIG that as part of the review, he the NSA with the new collection parameters To conduct their review Goldsmith and Philbin re uested that the A ril 15 2004, Goldsmith reported the results of his and Philbin?s review ti%the Assistant General Counsel for Operations in the 0 ice 0 ener Counsel. On A ril 22, 2004, Goldsmith memorialized his conversation with?in a memorandum to ?lememorandum, Golds found in their review. Goldsmith also conveyed actwce to Vito Potenza, the Acting General Counsel at the time. ?S?S?i?hWif-S?fG?fN?Fj? 9. May 5, 2004, Presidential Authorization As noted above, the March 1 1, 2004, Presidential Authorization, as modi?ed, was set to expire on May 6, 2004. On May 5, the President signed another Authorization extending the Stellar Wind program through June 24, 2004. Unlike the March 11 Authorization and the two modi?cations that APPROVED FOR PUBLIC RELEASE followed it, the May 5 Authorization was certi?ed as to form and legality by Attorney General Ashcroft. The May 5, Authorization cont Authorization narrowin the sco of 11 The Ma 5 Authorization also included the paragraph de?ning the scope of modified on March 19 to encompass only the May 5 Authorization With minor variations, the collection standards and other language set forth in the May 5, 2004, Presidential Authorization remained unchanged in all of the subsequent Authorizations.211 10. May 6, 2004, OLC Memorandum On May 6, 2004, Goldsmith completed a revised OLC memorandum on the legality of the Stellar Wind program. The IDS-page document stated that it was written for the Attorney General in response to his request for OLC ?to undertake a thorough reexamination of the Stellar Wind program as it is currently operated to con?rm that the actions that the President has directed the Department of Defense to undertake through the National Security Agency (NSA) are lawful.? The memorandum traced the history of the program and analyzed the legality of each of the three collection baskets in light of applicable statutes, Executive Orders, cases, and constitutional provisions. 210 "2004', .21] in the March 11, APPROVED FOR PUBLIC RELEASE The memorandum noted that Section 111 of FISA, 50 U.S.C. 1811, providing that the President ?may authorize electronic surveillance without a court order . . . to acquire foreign intelligence information for a period not to exceed ?fteen calendar days following a declaration of war by Congress,? made it clear that FISA expressly addresses electronic surveillance during wartime?12 The memorandum stated that the Authorization for Use of Military Force (AUMF) passed by Congress shortly after the attacks of September 1 1, 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. According to the memorandum, the AUMF was properly read as an express authorization to conduct targeted electronic surveillance against al Qaeda and its af?liates, the entities responsible for attacking the United States. '??STbej?Si?eef-NFT The memorandum noted that the legislative history of FISA indicates that the 15-day window was ?thought suf?cient for the President to secure legislation easing the restrictions of FISA for the con?ict at hand.? Quoting H.R. Conf. Rep. No. 95?1720, at 34, reprinted in U.S.C.C.A.N. 4048, 4063 conferees intend that this period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency?). According to the OLC memorandum, ?The Congressional Authorization functions as precisely such legislation: it is emergency legislation passed to address a speci?c armed con?ict and expressly designed to authorize whatever military actions the Executive deems appropriate to safeguard the United States.? The memorandum concluded that at a minimum the AUMF made the application of FISA in a wartime context suf?ciently ambiguous that the doctrine of constitutional avoidance properly applied to avoid a con?ict between FISA and the presidentially authorized Stellar Wind program. Alternatively, the memorandum argued that FISA, as applied in the particular circumstances of a President directing surveillance of the enemy to prevent future attacks upon the nation, represented an unconstitutional infringement on the President?s Article II Commander-in-Chief powers. ?1 As discussed in section I of this chapter, the legal implications of this provision of FISA was not addressed in the memoranda John Yoo had drafted in support of the program in late 2001. APPROVED FOR PUBLIC RELEASE APPROVED FOR PUBLIC RELEASE Finally, the memorandum discussed the Fourth Amendment implications of the Stellar Wind ro am. To determine Whether interception 0* violated the Fourth Amendment?s prohibition against unreasonable searches, the memorandum analyzed whether the importance of the government?s interest in this collection outweighed the individual privacy interests at stake. Citing various ding Supreme Court opinions, the Federalist Papersm and congressional testimony, the memorandum concluded that ?the government?s overwhelming interest in detecting and thwarting further al Qaeda attacks is easily suf?cient to make reasonable the intrusion into privacy involved in intercepting selected communications.? The memorandum noted that the weight of the government?s interest in this regard could change over time if the threat from al Qaeda were deemed to recede. The memorandum also analyzed telephone and e-mail meta data collection under the Fourth Amendment. The memorandum concluded, based on the Supreme Court?s holding in Smith 1). Maryland, 442 US. 735, 742 (1979), that there is no legitimate expectation of privacy in the numbers dialed to place telephone calls. Referring to cases holding that no expectation of privacy attached to the address information on either letter mail or e-mail, the memorandum concluded that no Fourth Amendment privacy interests were implicated in the collection of e-mail meta data. In sum, the May 6 memorandum was the most comprehensive assessm OIG Analysis (U) A. Department?s Access to and Legal Review of Stellar Wind Program Through May 2004 The Justice Department?s access to the Stellar Wind program was controlled by the White House, and Gonzales told the OIG that the President decided whether non-operational personnel, including Department lawyers, could be read into the program. Department and FBI officials told us that obtaining approval to read in Department officials and FISA Court judges involved justifying the requests to Addington and Gonzales, who effectively acted as gatekeepers to the read-in process for non-operational of?cials. In contrast, according to the NSA, operational personnel at the SA, CIA, and the FBI were read into the program on the authority of the NSA Director, who at some point delegated this authority to the Stellar Wind Program Manager. APPROVED FOR PUBLIC RELEASE Various of?cials we interviewed about the issue uniformly agreed that the White House sought to strictly limit overall access to the Stellar Wind program. We believe that this policy was applied at the Department in an unnecessarily restrictive manner prior to March 2004, and was detrimental to the Department?s role in the operation of the program through that period. We also believe that Attorney General Ashcroft, as head of the Department, was responsible for seeking to ensure that the Department had adequate attorney resources to conduct a thorough and accurate review of the legality of the program. Because Ashcroft did not agree to be interviewed for this investigation, we were unable to determine the extent of his efforts to press the White House to read in additional Department of?cials between the program?s inception in October 2001 and the critical events of March 2004. In Chapter Three we described how the Department?s early involvement in the Stellar Wind program was limited to the participation of only three attorneys Attorney General Ashcroft, OLC Deputy Assistant Attorney General John Y00, and Counsel for Intelligence Policy James Baker.216 Working alone, Yoo drafted several legal memoranda in 2001 and 2002 advising the Attorney General and the White House that the program was legally supported. In reliance on Yoo?s advice, Attorney General Ashcroft certi?ed the legality of the Presidential Authorizations to implement the program. Because Yoo worked alone, his legal analysis was not reviewed by other attorneys, either in OLC or elsewhere in the Department.217 Even 215 Counsel for Intelligence Policy James Baker was read into the program in either late 2001 or January 2002. But Baker appears to have been read in only because he inadvertently came across information that suggested such a program existed. While Baker had involvement in several aspects of the program, he had no involvement in drafting or reviewing Yoo?s legal memoranda supporting the program. Daniel Levin, who served as both Chief of Staff to FBI Director Mueller and brie?y as a national security counselor to Ashcroft, also was read into Stellar Wind at the inception of the program. Levin only served for two months at the Department during this early phase of Stellar Wind and had very limited involvement in the program during this period. Levin told us he was read into Stellar Wind along with Director Mueller at the FBI and that he understood that he was being cleared into the program as an FBI of?cial. We therefore consider Levin to be an FBI read-in, not a Department read-in. 217 Gonzales told us that he thought Yoo may have assigned discrete tasks to other attorneys in connection with his work on the Stellar Wind legal memoranda. Because Yoo declined our request for an interview, we were unable to confirm this. In any event, no other attorneys were read into Stellar Wind and therefore would not have been permitted to work on or review those portions of the memoranda that contained Top Secret/ Sensitive Compartmented Information related to the Stellar Wind program. By contrast, Yoo had at least one other OLC attorney to assist him in drafting other OLC legal memoranda on the detainee interrogation program during the 2001 to 2003 period, and these memoranda were reviewed by another OLC Deputy Assistant Attorney General (Cont?d.) APPROVED FOR PUBLIC RELEASE when Jay Bybee became the OLC Assistant Attorney General in November 2001, and was therefore Yoo?s supervisor, Bybee was not read into the program.213 Bybee told us he also was unaware that Yoo was providing advice to the Attorney General and the White House on the legal basis to support the program. We believe that even before Patrick Philbin voiced his initial concerns with Yoo?s analysis in 2003, the circumstances in 2001 and 2002 plainly called for additional Department resources to be applied to the legal review of the program and that it was the Attorney General?s responsibility to be aware of this need and to take steps to address it. Moreover, because Ashcroft met frequently with the President on national security matters, he would have been well-positioned to request additional legal resources if he believed they were necessary. The facts suggest that Ashcroft had some awareness and concern that Yoo was working on the legal justi?cation for the Stellar Wind program without any Department assistance or oversight, and possibly was advising the White House directly of his ?ndings. Based on accounts of the incident in Ashcroft?s hospital room in March 2004, Ashcroft made speci?c complaints to Gonzales and Card about insuf?cient legal resources at the Department and that the Department had been ?cut out of the whole affair.? He had also expressed frustration to Corney months earlier about being ?in a box? with Yoo. Further, according to Goldsmith, when Goldsmith ?rst interviewed for the position of Assistant Attorney General for OLC in 2003, Ashcroft and his Chief of Staff alluded to concerns over being kept informed of matters the Of?ce of Legal Counsel was working on and the importance of keeping the Attorney General ?in the loop.? We also note that Yoo?s November 2, 2001, memorandum to Ashcroft indicated that ?[b]ecause of the highly sensitive nature of this subject and the time pressures involved, this memorandum has not undergone the usual editing and review process for opinions that issue from our Of?ce While we believe that Ashcroft may have been aware that Yoo was working alone on the Stellar Wind analysis and had concerns about this, we do not know whether or how hard he pressed the White House to read in additional attorneys to assist or supervise Yoo. At the same time, however, (Philbin) and approved by the OLC Assistant Attorney General (Bybee). The detainee interrogation program also was classi?ed as TS We also note that Philbin?s background in telecommunications law would have made him a logical choice to assist Yoo on the Stellar Wind legal analysis. 3'3 In contrast, Bybee was allowed to supervise Yoo?s work drafting legal memoranda concerning a detainee interrogation program during the same time period. APPROVED FOR PUBLIC RELEASE we cannot assume that any requests by Ashcroft for additional attorney read?ins would have been granted by the White House. Gonzales told us that Ashcroft had requested that Deputy Attorney General Larry Thompson and Ashcroft?s Chief of Staff David Ayres be read in. However, neither request was approved.219 Gonzales stated that he did not recall Ashcroft requesting additional read-ins beyond Thompson and Ayres. (U) In analyzing the read?in situation at the Department during Yoo?s tenure, we also considered that Ashcroft certi?ed the program as to its legality each time the program came up for renewal, and did so at a time when Yoo?s legal advice was the only Department guidance available concerning the program?s legality. We believe the fact that only three Department attorneys were read into Stellar Wind through mid-2003 may have been due at least in part to Ashcroft?s routine recerti?cations of the Presidential Authorizations during this period. As noted in Chapter Three, Gonzales told us that it was up to the Attorney General to decide how to satisfy his legal obligations as Attorney General, and that if Ashcroft believed more attorneys were needed for this purpose, he could have asked the President to approve additional Department read?ins. Gonzales also told us that Ashcroft?s continued certi?cations of the Presidential Authorizations supported Gonzales?s belief that Ashcroft was satis?ed with the quality of the legal advice he was receiving at the time within the Department. WSW) There is evidence as well that Gonzales, as White House Counsel, was satis?ed with Yoo?s legal memoranda supporting the program. Gonzales told us that although he did not believe Yoo?s ?rst two memoranda fully addressed the White House?s understanding of the Stellar Wind program, Gonzales believed that they described as lawful activities that were broader than those carried out under Stellar Wind, and that Yoo?s memoranda therefore ?covered? the program.220 21? Deputy Attorney General Thompson resigned from the Department in August 2003, so Ashcroft?s request to have him read into the program would have been made before that time. The as rea in contrasts with the decision to allow in the case MW briefed about the re ram in 2002, and ?to be read into the program in 2003. The does not Know who authorized these read-ins. 21? We were troubled by Gonzales?s suggestion that Yoo?s memoranda covered the program because the memoranda determined to be lawful a range of ?hypothetical? activities that were interpreted by Gonzales to be broader than those actually carried out under Stellar Wind. Such an approach, if deemed acceptable by the ?client? (in this case the White House), would encourage the Of?ce of Legal Counsel to draft broad and imprecise (Cont?d.) APPROVED FOR PUBLIC RELEASE However, even apart from the limited number of Department read?ins, we believe that the White House imposed excessively strict controls over access to the program in other ways that were detrimental to the Department?s ability to provide the White House with the soundest possible legal advice. For instance, we found no indication that Yoo coordinated his legal analysis with the NSA. According to Michael Hayden, the Director of the SA when Stellar Wind began, the NSA relied on its Of?ce of General Counsel, and not the Department of Justice, for advice as to the legality of the program when it was created. However, we found that the Of?ce of General Counsel did not coordinate its legal advice with the Department, and even as late as 2003 the NSA General Counsel was prevented by the White House from reviewing the Department?s legal opinions on the program.221 Hayden also told the OIG that he was ?surprised with a small that the Department did not participate in the early meetings with him and White House officials when Stellar Wind was ?rst conceived. In addition, Addington instructed Philbin not to discuss the program with Baker, who as Counsel for Intelligence Policy was responsible for representing the government before the FISA Court.222 t?l?S?S-I-f?i?F) We believe that that White House should have allowed and even encouraged coordination between the Department and the NSA regarding the development of the legal analysis of the program, especially as this analysis was ?rst being formulated in late 2001. Such interaction between the Department and other Executive agencies is a mainstay of traditional OLC practice, and we believe its absence here contributed to factual errors in Yoo?s Opinions regarding the operation of the program. Although we could not determine exactly why Yoo remained the only Department attorney assigned to assess the program?s legality from 2001 until his departure in May 2003, we discuss below our belief that this practice represented an extraordinary and inappropriate departure from traditional review and oversight procedures and resulted in signi?cant harm to the Department?s role in the program. When Yoo left the Department in May 2003, he was replaced by Patrick Philbin, who was read into the program to advise Ashcroft whether he could continue to certify the Presidential Authorizations as to their form legal analysis and would discourage the type of careful scholarship to which the OLC traditionally aspires. In addition, the NSA Of?ce of the Inspector General, which wanted to conduct an internal audit of the program during this period, was prevented by Addington from reviewing the Justice Department?s legal memoranda supporting the program. (U mosey ?22 Philbin told the 016 that he Spoke with Baker about the program despite Addington?s instruction not to. (U) APPROVED FOR PUBLIC RELEASE and legality. When Goldsmith became the OLC Assistant Attorney General in October 2003, Philbin pressed Addington to have Goldsmith read in, and Goldsmith became the ?rst head of OLC to be read into the program. As noted, Goldsmith?s predecessor Jay Bybee was never read into the program. Thus, by the end of 2003, a total of only 5 Department of?cials Yoo, Ashcroft, Baker, Philbin, and Goldsmith had been read into Stellar Wind. By comparison, and as shown in Chart 4. 1 below, we determined that many other individuals through i to the ro ram. the same eriod W) The assignment of only one Department attorney, John Yoo, to conduct a legal review of the program without assistance or oversight from anyone else at the Department, combined with the White House?s decision to prevent the NSA from reviewing Yoo?s work, resulted in legal opinions by Yoo that were later determined by OLC to be so inaccurate and incomplete 9?3 This table was derived from SA read?in information. Justice Department read?ins includelOIG personnel who were read into Stellar Wind in 2006. 191 Wm APPROVED FOR PUBLIC RELEASE 49W as to be regarded as not covering key aspects of the Stellar Wind program. Given the enormously complex nature of the program from both a technical and legal perspective, coupled with the fact that he was working alone, it was not altogether surprising that Yoo?s analysis contained inaccuracies and omitted critical elements, particularly given the pressure to generate a legal analysis within weeks of the program?s implementation. However, Yoo?s analysis did not change or include a more accurate description of the program?s operation over the course of his 20?month tenure with the OLC. After reviewing Yoo?s legal opinions on the program, Goldsmith and Philbin quickly discovered what they characterized as seriou oo?s 1e a1 anal sis. These ws ?3 failure to describeW being conducted by the SA under the Ste ar Wind program and his failure to assess the legality of this and other activities as they were carried out by the NSA. WW Speci?cally, both Goldsmith and Philbin stated that Yoo nature and scope of the They stated that Yoo?s characterization of this activity in his 2001 and 2002 legal memoranda was factually ?awed and that Yoo appears to have based his legal analysis of this as set of ription and the 224 Both Goldsmith and l-?h1lb1n also acknowledged that they initially incorrectly believed the was broader than it in fact was under the program. However, unlike Yoo, Goldsmith and Philbin accurately misch APPROVED FOR PUBLIC RELEASE characterized the collectio and thus their legal advice was based on facts that more closely re?ected the actual operation of the program.225 W) In addition, Goldsmith and Philbin discovered that Yoo?s assertion that the President had broad authority to conduct electronic surveillance without a warrant pursuant to his Commander-in?Chief powers under Article II of the Constitution, particularly during wartime, never addressed the FISA provision that expressly addressed electronic surveillance following a formal declaration of war. See 50 U.S.C. 1811. Goldsmith also criticized Yoo?s legal memoranda for failing to support Yoo?s aggressive Article II Commander-in-Chief theory with a fully developed separation of powers analysis, and instead offering only sweeping conclusions. As an example, Goldsmith cited Yoo?s assertion that reading FISA to be the ?exclusive statutory means for conducting electronic surveillance for foreign intelligence? amounts to an ?unconstitutional infringement on the President?s Article II authorities.?226 Moreover, noted Goldsmith, Yoo omitted from his separation-of?powers discussion any analysis of how the Youngstown Steel Seizure Case, a seminal Supreme Court decision on the distribution of governmental powers between the Executive and Legislative Branches during wartime, would affect the legality of the President?s actions with respect to Stellar Wind.227 In reliance on Yoo?s advice, the Attorney General certi?ed the program ?as to form and legality? some 20 times before Yoo?s analysis was determined to be ?awed by his successors in OLC and by attorneys in the Of?ce of the Deputy Attorney General. We agree with many of the criticisms offered by Department of?cials regarding the practice of allowing a single Department attorney to develop the legal justi?cation for the program 225 See Yoo Memorandum, November 2, 2001, at 9. You went on to state that Yoo concluded at FISA ?represents a statutory procedure that creates a sale harbor 101? surveillance for foreign intelligence purposes.? Id. 227 The Department's Office of Professional Responsibility (OPR) intends to review whether Yoo?s legal analysis concerning the Stellar Wind program violated any standards of professional conduct. OPR has similarly reviewed whether the legal analysis by Yoo and others concerning the detainee interrogation program violated standards of professional conduct. APPROVED FOR PUBLIC RELEASE WW during its early stage of operation. We summarize these criticisms below. Goldsmith described as ?crazy? and ?outrageous? the assignment of an OLC Deputy Assistant Attorney General to provide legal advice to the White House without the knowledge or concurrence of the Senate-con?rmed Assistant Attorney General for OLC, who is accountable for the legal positions taken by the office. (U) Goldsmith said that not a single critical reviewed Yoo?s work on a program that Goldsmith described as ??ying in the face? of the conventional understanding of the law at the time. Goldsmith noted that Yoo?s legal memoranda did not include facts about how the Stellar Wind program operated in practice, and he surmised that Yoo instead might have ?keyed off? the Presidential Authorizations rather than actual collection practices in developing his analysis. Goldsmith also said it was ?insane? that Yoo?s memoranda were not shared with the NSA. Goldsmith said that had the NSA reviewed these memoranda Yoo?s failure to accurately describe the nature and scope of the collection by the SA and the resulting ?mismatch? between the actual practice and the wording of the Presidential Authorizations might have been detected earlier. Similarly, Daniel Levin, who was one of the first FBI officials to be read into Stellar Wind and who would later become Acting Assistant Attorney General for OLC upon Goldsmith?s departure in June 2004, criticized allowing a single attorney to be the sole voice of the OLC concerning a program such as Stellar Wind. Levin stated that OLC has a special role at the Department and within the government, especially with ?highly secret programs where opinions may never see the light of day.? Under such circumstances, according to Levin, it is very dif?cult not to say ?yes? to the White House client in the face of national security threats. Levin stated that unlike situations where a court places limitations on the positions the government may take, there are no such limitations when OLC considers a position that will remain secret, and it is easier to be more aggressive and ?cut some corners? under such circumstances. Levin stated that Yoo?s memoranda justifying the program suffered from too little circulation and a lack of alternative views. He said that the OLC memoranda produced under Goldsmith?s tenure were better, not because the authors were ?smarter? than Yoo, but because the authors bene?ted from multiple viewpoints and input. Levin also said that he never understood Why the Stellar Wind program was deemed so sensitive at the operational level. Levin said he appreciated that the program was politically sensitive, but added that it was a ?huge mistake? to keep the program so closely held within the Department. APPROVED FOR PUBLIC RELEASE WSW We believe that Goldsmith?s and Levin?s comments concerning the secrecy of Stellar Wind are especially relevant to the need for legally and factually sound OLC analysis with respect to classi?ed national security programs. Because programs like Stellar Wind are not subject to the usual external checks and balances on Executive authority, advisory, role is particularly critical to the Executive?s understanding of potential statutory and Constitutional constraints on its actions. Deputy Attorney General Comey also criticized the decision to allow a single person to assess the legality of the program on behalf of the Department. Comey told us that Goldsmith had once aptly described the Yoo situation to him as ?the perfect storm? in which the following factors converged: the terrorist attacks of September 11, 2001; a ?brilliant guy? at the Department who was ?an aggressive advocate for executive power?; and a White House ?determined to restore executive power.? Comey expressed a degree of sympathy for Yoo, noting the extraordinary situation into which Yoo had been placed. Comey also observed that the response to September 1 1 essentially placed the policy burden on lawyers, who were now looked to by others for guidance as to what counterterrorism activities fell within the bounds of the law. However, Corney said that he believed White House of?cials ?got what they ordered? by asking Yoo for opinions and restricting the number of persons with access to the program or the opinions.228 Attorney General Ashcroft declined to be interviewed in our review, and we were thus unable to determine what his views were on the assignment of Yoo alone to conduct the legal review of the program. However, as noted above, witness accounts of his statements concerning the Yoo situation leave little doubt that Ashcroft was plainly upset with the White House for putting him ?in a box? with Yoo. According to Goldsmith and Philbin, Ashcroft was direct about his grievances when Gonzales and Card came to see him in the hospital on March 10, 2004, including complaining that Ashcroft?s Chief of Staff and until recently the Deputy Attorney General had not been allo to the program, and that he found it ?very troubling thaMeople in other agencies? had been read into the program. What remains unclear is Whether Ashcroft came to the realization that the Department had been given an insuf?cient number of read?ins only after Philbin and Goldsmith presented him with their concerns about the quality of Yoo?s legal analysis, or at some point before. 928 As noted in Chapter Three, Yoo had been given the national security portfolio when he ?rst joined the OLC in July 2001, several months before the attacks of September 1 1, 2001, and the inception of Stellar Wind. APPROVED FOR PUBLIC RELEASE We sought to obtain Yoo?s and the White House?s perspective on his selection as the sole Justice Department attorney to be read into Stellar Wind to provide advice on the legality of the program. We were not able to interview Yoo, who declined our request, or Addington and Card, who did not reSpond to our requests. The OIG asked Gonzales about how the White House determined who in the Department could be read into the program, but on the advice of Special Counsel to the President, Gonzales limited his answer to his personal views and declined to discuss internal White House deliberations that may have factored into the read-in decisions. Gonzales stated that he believed it was necessary for national security reasons to limit the number of read-ins to those ?who were absolutely essential.? Gonzales also stated that there had to be suf?cient operational personnel at the SA, CIA, and FBI read in for the purpose of running the program, while reading in additional lawyers at the Department had comparatively less value because all lawyers will ?have opinions? about the program. Yet, Gonzales also stressed to us that he welcomed the Department?s reassessment of Yoo?s opinions and encouraged Goldsmith and Philbin to re-examine the legal basis for the program in 2003 and 2004.229 We think the proposition that the participation of Department attorneys to analyze the legality of a program as factually and legally complex as Stellar Wind should be limited for the reasons offered by Gonzales is shortsighted and counterproductive. First, it is evident that Stellar Wind was as legally complex as it was technically challenging. Just as a suf?cient number of operational personnel were read into the program to assure its proper technical implementation, we think as many attorneys as necessary should have been read in to assure the soundness of the program?s legal foundation. This was not done during the early phase of the program. The full history of the program also indicates that the program bene?ted from additional attorney read?ins. In this chapter, we described how Philbin and Goldsmith who held differing Opinions on which legal theory best supported the program discovered serious de?ciencies in Yoo?s analysis and together drafted more factually accurate and legally thorough support for the program. In Chapters Five, Six, and Seven we further describe how reading in additional attorneys facilitated the grounding of the program on ?rmer legal footing under FISA, allowed the Department more ef?ciently to ?scrub? Stellar Wind?derived information in FISA applications, 1?29 As discussed in this chapter, Comey, Goldsmith, and Philbin generally agreed that Gonzales supported the Department?s legal reassessment of the program. They also characterized Addington as far less SUpportive of their work than Gonzales. Wit-F)- APPROVED FOR PUBLIC RELEASE and improved the handling of Stellar Wind?related discovery issues in international terrorism prosecutions. Second, we do not believe that reading in a few additional Department attorneys during the ?rst 2 years of the program would have jeopardized national security as suggested by Gonzales, especially given the hundreds of Operational personnel who were cleared into the program during the same period (see Chart 4.1). In fact, as noted above, we think the highly classi?ed nature of the program, rather than constituting an argument for limiting the OLC read-ins to a single attorney, made the need for careful analysis and review within the Department and by the NSA only more compelling. es?swae? In sum, we concluded that the departure from established OLC and Department practices resulted in legal opinions to support the program that were later determined to be ?awed. We believe the strict control over the Department?s access to the program undermined the role of the Department to ensure the legality of Executive Branch actions, and as discussed below, contributed to the March 2004 crisis that nearly resulted in the mass resignation of the Department?s leadership. . We recommend that when the Justice Department is involved with such programs in the future, the Attorney General should carefully assess whether the Department has been given adequate resources to carry out its vital function as legal adviser to the President and should aggressively seek additional resources if they are found to be insuf?cient. We also believe that the White House should allow the Department a suf?cient number of read-ins when requested, consistent with national security considerations, to ensure that sensitive programs receive a full and careful legal review. (U) B. The Hospital Visit (U) The Department?s reassessment of Yoo?s analysis led Comey, who was exercising the powers of the Attorney General while Ashcroft was hospitalized in March 2004, to conclude that he could not certify the legality of the Stellar Wind program. In response, the President sent Gonzales and Chief of Staff Andrew Card to visit Ashcroft in the hOSpital to seek his certi?cation of the program, an action Ashcroft refused to take. We?be1ieve that the way the White House handled its dispute with the Department about the program particularly in dispatching Gonzales and Card to Ashcroft?s hospital room to override Comey?s decision - was troubling for several reasons. As discussed in this chapter, by March 2004, when the Presidential Authorization was set to expire again, Goldsmith had placed Gonzales and Addington on notice for several months of the Department?s doubts about APPROVED FOR PUBLIC RELEASE the legality of aspects of the Stellar Wind program. In particular, he and Philbin had made clear that the De artment uestioned the After Attorney General Ashcroft was hospitalized and unable to ful?ll his duties, the White House was informed that Deputy Attorney General Carney had assumed the Attorney General?s responsibilities. We found that the assertion by some in the White House at the time that they had not been informed of the situation was subsequently contradicted by the facts. In particular, Gonzales later acknowledged that he was aware that Comey was acting as the Attorney General.231 (U) Before the Presidential Authorization was set to expire on March 1 1, Comey, who was exercising the powers of the Attorney General at the time, told top of?cials in the White House including Vice President Cheney and White House Counsel Gonzales that the Justice Department could not recertify the legality of the program as it was presently operating. The White House disagreed with the Justice Department?s position, and on March 10, 2004, convened a meeting of eight congressional leaders to brief them on the Justice Department?s seemingly sudden reluctance to recertify the program and on the need to continue the program. The White House did not invite anyone from the Department to this brie?ng to describe the basis for its advice about the legality of the program, nor did it inform the Department of its intention to hold the Following this brie?ng, Gonzales and Card went to the hospital to ask Attorney General Ashcroft, who was in the intensive care unit recovering 23" Our conclusion that Goldsmith advised Gonzales and Addington of the Department?s concerns in December 2003 is supported by his contemporaneous notes of these events. In addition, although Gonzales told us that the ?rst time he recalled hearing of these concerns in detail was in early March 2004-, he did not dispute that Goldsmith had first begun to advise him of the Department?s general concerns months earlier. (U) 931 During his congressional testimony, when questioned about whether he knew that Attorney General Ashcroft?s powers had been transferred to Comey, Gonzales responded, think that there were newspaper accounts, and that fact that Mr. Comey was the acting Attorney General is probably somethingl knew of.? (U) 232 On the advice of White House counsel, Gonzales declined to provide a reason to the OIG why the Department was not asked to participate in the brie?ng. However, when Gonzales commented on a draft of this report, he stated that the purpose of the meeting was to inform the congressional leaders that the De tm - - - basis for aspects of the program, and that a legislative ?x therefore 7 pose of the meeting was not to have a ?debate? between the White House and the Department concerning the legality of the program, but rather to explore just such a legislative APPROVED FOR PUBLIC RELEASE . from surgery and according to witnesses appeared heavily medicated, to certify the program, notwithstanding Comey?s stated opposition. Yet, they did not notify Comey or anyone else in the Department that they intended to take this action. Their attempt to have Ashcroft recertify the program did not succeed. Ashcroft told them from his hospital bed that he supported the Department?s legal position, but that in any event he was not the Attorney General at the time Comey was. (U) Gonzales stated that even if he knew that Ashcroft was aware of Comey?s opposition to recertifying the program, Gonzales would still have wanted to speak with Ashcroft because he believed Ashcroft still retained the authority to certify the program. Gonzales testi?ed before the Senate Judiciary Committee in July 2007 that although there was concern over Ashcroft?s condition, ?We would not have sought nor did we intend to get any approval from General Ashcroft if in fact he wasn?t fully competent to make that decision.? Gonzales also testified, ?There?s no governing legal principle that says that Mr. Ashcroft, if he decided he felt better, could decide, ?I?m feeling better and I can make this decision, and I?m going to make this decision.? (U) We found this explanation and the way the White House handled the dispute to be troubling. Rather, we agree with Director Mueller?s observation, as recorded in his program log following his meeting with Card on March 1 1, 2004, that the failure to have Department of Justice representation at the congressional brie?ng and the attempt to have Ashcroft certify the Authorization by overruling 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.? At a minimum, we would have expected the White House to alert Comey directly that it planned to brief the congressional leaders on the Department?s position and that it intended to seek Ashcroft?s approval of the program despite Comey and Goldsmith?s stated legal position against continuing certain activities under the program. Instead, White House of?cials briefed congressional leaders and sought to have Attorney General Ashcroft recertify the program from his hospital bed without any notice to Comey or anyone else at the Department. We believe these actions gave the appearance of an ?end run? around the ranking Justice Department of?cial with whom they disagreed. C. Recerti?cation of the Presidential Authorization and Modi?cation of the Program (U) As described in this chapter, the Department had noti?ed Gonzales and Addington of its concerns about the legality of aspects of the program APPROVED FOR PUBLIC RELEASE for several months. In fact, the Department had made clear to the White House in December 2003 and more emphatically in a series of meetings in March 2004 that it believed that aspects of the program could not be legally supported in their existing form. Comey and Goldsmith were clear in their advice to the President and other White House of?cials. At the hos ital Ashcroft also expressed deep concern and told Gonzales and Card that he supported the position of his subordinates. We believe that Ashcroft acted admirably under arduous circumstances. Despite the legal concerns uniformly expressed by senior Department of Justice leaders, the White House, through White House Counsel Gonzales, recertified the Authorization, allowing the program to continue substantively unchanged. ?S?Sl?l-f?-Fi? Only after Mueller, Comey, and other senior Department and FBI of?cials made known their intent to resign if the White House continued the program unchanged, despite the Department?s conclusion that aspects of the program could not be legally supported, did the President direct that the issue be resolved, and the program be modi?ed to address the Department?s legal concerns. Because we were unable to interview key White House of?cials, we could not determine for certain what caused the White House to change its position and modify the program, although the prospect of mass resignations at the Department and the FBI appears to have been a significant factor in this decision.233 According to Comey, the President raised a concern that he was hearing about these problems at the last minute, and the President thought it was not fair that he was not told earlier about the Department?s legal position. In fact, as Comey informed the President, the President?s staff had been advised of these issues ?for weeks.? Finally, we believe that the Department and FBI of?cials who resisted the pressure to recertify the Stellar Wind program because of their belief that aspects of the program were not legally supportable acted courageously and at signi?cant professional risk. We believe that this action by Department and FBI of?cials particularly Ashcroft, Comey, Mueller, 233 For instance, we found it significant that on March 16, 2004, White House Counsel Gonzales, who had to make a recommendation to the President about how to ?s conclusion that legal support for called Dire to ask him Mueller whether he would resign if the President did no responded that he ?would have to give it se '0 ahead in the face of findin g0 APPROVED FOR PUBLIC RELEASE Goldsmith, Philbin, and Baker was in accord with the highest professional standards of the Justice Department. APPROVED FOR PUBLIC RELEASE APPROVED FOR PUBLIC RELEASE WW CHAPTER FIVE STELLAR WIND TRANSITION TO FISA AUTHORITY (JUNE 2004 THROUGH AUGUST 2007) In this chapter we examine the transition in stages of the Stellar Wind program from presidential authority to FISA authority. We ?rst describe the FISA Court?s approval in July 2004 of the government?s application to acquire foreign intelligence information through the collection of bulk e-mail meta data (basket 3 information). This application was based on a legal theory related to pen register and trap and trace device provisions. We next discuss the government?s succeslsful May 2006 application to the FISA Court for an order to obtain bulk telephony meta data {basket 2 information) by the production of business records by certain telecommunications carriers. We then describe the government?s interaction with the FISA Court to place under FISA the government?s authority to intercept the content of certain communications involving both domestic and foreign telephone numbers and e-mail addresses (basket 1 information). Finally, we summarize legislation enacted in August 2007 and July 2008 to amend FISA to address, among other concerns, the difficulty the government encountered in obtaining FISA authority for content collection, as Well as the government?s contention that certain provisions of FISA had failed to keep pace with changes in telecommunications technology. WSW I. E-Mail Meta Data Collection Under FISA A. Application and FISA Court Order (U) 1. Decision to Seek a Pen Register and Trap and Trace Order from the FISA Court APPROVED FOR PUBLIC RELEASE Philbin told us that he encountered some opposition to the FISA approach from Counsel to the Vice President David Addington, who argued that the FISA Court was unconstitutional and questioned the need to seek its authorization for e?mail meta data collection. Philbin said that he responded that obtaining an order from the FISA Court was ?ironclad safe.? Baker recalled attending at least one meeting at the White House with White House Counsel Gonzales and Addington to discuss whether to seek an order from the FISA Court based on pen register and trap and trace device provisions (a Order) and how the FISA Court should be approached to obtain such an order. Baker stated that during the meeting Addington said, ?We are one bomb away from getting rid of this obnoxious Court.? Baker said Addington also stressed to him that there ?is a lot riding on your [Baker?s] relationship with this Court.? WSW In contrast, Hayden told us that he did not have any concerns about transitionng the bulk e-mail meta data collection to FISA authority and was enthusiastic about the move. Hayden stated that while he believed the President had the authority to collect the bulk meta data for the NSA to conduct meta data analysis, he believes that involving an additional branch of government in the activity provided some clarity on this subject. Gonzales told us that he did not recall much about the process of ?ling the application with the FISA Court to obtain e-rnail meta data through a Order, but stated that there may have been individuals at the White House who expressed concern that seeking the Order from the FISA Court was not a good idea. However Orde He stated that he relied on what the intelligence professionals told him and that he would not have supported the application if NSA Director Hayden and others did not believe the collection under the the natio Gonzales APPROVED FOR PUBLIC RELEASE WW also told us that there was concern at the White House that ?ling the application could lead to an unauthorized disclosure of the program. WW 2. Brie?ng for Judge Kollar-Kotelly (U) In? Baker, Philbin, and Goldsmith met with Gonzales and Addington at the White House to discuss how to approach Judge Kollar-Kotelly concerning the proposed application, and it was decided to give her a ?presentation? abo resentation was provided to Judge Kollar-Kotelly on Present were Attorney General Ashcroft, Centr Inte 'igence Agency Director George Tenet, FBI Director Mueller, Hayden, Gonzales, OLC Assistant Attorney General Goldsmith, Philbin, Baker, and Director of the Terrorist Threat Integration Center (TTIC) John Brennan. According to an agenda of the brie?ng, and as con?rmed to the OIG, the presentation was given in three parts. First, Mueller, Tenet, and Brennan described the Hawk . . . . . ms 0 Second, Hayden described the technical aspects of the proposed bulk e?mail meta data collection, including how the information was to be collected, archived, queried, and minimized. This portion of the presentation stressed that the NSA required the collection of meta analytic capabilities through contact chainin to identify terrorist communications.234 Third, Philb'in eiplained the government?s legal argument that FISA authorized the Court to approve a broad application to collect e?rnail meta data under the statute?s pen register and trap and trace provisions. WSW W- 3. The Application Philbin, Baker, and at least two Of?ce of Legal Counsel attorneys assumed primary responsibility for drafting the application to the FISA Court and a memorandum of law in support of the application.235 23? The agenda refers to the ?needle in haystack? metaphor to illustrate the need for bulk collection, noting ?must transform streams of hay into haystack that can later be searched.? 235 consisted of the application; a proposed order authorizing the collection activity and secondary orders mandating carriers to cooperate; a declaration of NSA Director Hayden explaining the technical aspects of the (Cont?d.) APPROVED FOR PUBLIC RELEASE Baker said that Judge Kollar?Kotelly was given a ?read-ahead copy? of the application, since it was standard practice to give the FISA Court draft to it sought aamaraatimtf?s?m**??*? The ob'ective of the application was to bulk e-mail meta dat the meta data to be collected under I A?thoi?ity would seafared?m a database. According gainst the database to identify by 10 okin for contacts with other individuals reasonably suspected to be_and to reveal communications links between such operatives. The resulting analytical products would then be tipped out as leads to the FBI and other elements of ntelligence Community to ?nd members of disrupt their activities, and prevent future terrorist attacks in the United States?? The Justice Department constructed its legal argument for this novel use of pen register and trap and trace devices around traditional authorities provided under FISA. Speci?cally, 50 U.S.C. 1842(a)( 1) authorizes the Attorney General or other designated government attorney to apply for an order or an extension of an order authorizing or approving the installation and use of a pen register or trap and trace device for any investigation to obtain foreign intelligence information not concerning a United States person or to protect proposed e-mail meta data collection and identifying the government of?cial seeking to use the pen register and trap and trace devices covered by the application for purposes of 50 U.S.C. 1842(c 1 a declaration of Director of Central Intelligence Tenet describing the threat posed by a certi?cation from Attorney General Ashcro 't stating that the information ikely to be obtained from the pen register and trap and trace devices was relevant to an ongoing investigation to protect against international terrorism, as required by 50 U.S.C. 1842(c); and a memorandum of law and fact in support of the application. phasized that Internet e-mail is one of the primary methods communicate. The memorandum APPROVED FOR PUBLIC RELEASE WW against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the ?rst amendment to the Constitution which is being conducted by the Federal Bureau of Investigation under such guidelines as the Attorney General approves pursuant to Executive Order No. 12333, or a successor order. FISA incorporated the de?nitions of the terms ?pen register? and ?trap and trace device? from 18 U.S.C. 3127. Thus, FISA adapted as the de?nition of a ?pen register? a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided, however, that such information shall not include the contents of any communication. 18 U.S.C. 3127(3). FISA also adopted as the de?nition of a ?trap and trace device? a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication, provided, however, that such information shall not include the contents of any communication. 18 U.S.C. 3127(4). In-its application the government argued that the proposed collection of meta data met the requirements of FISA by noting that the meta data sought comported with the ?dialing, routing, addressing, or signaling information? type of data described in de?nitions of pen registers and trap and trace devices. The government also noted that nothing in these de?nitions required that the ?instrument? or ?facility? on which the device is placed carry communications of only a single user rather than multiple users. {1138743174113? The government next argued that the information likely to be obtained from the pen register and trap and trace devices was relevant to an ongoing investigation to protect against international terrorism, as certi?ed by the Attorney General under 50 U.S.C. 1842(c). In support of this ?certi?cation of relevance? the overn ated th an 207 APPROVED FOR PUBLIC RELEASE The government acknowledged that ?the overwhelming majority of communications from which meta data will be collected will not be associated wi However, the government maintained that FISA did not impose any requirement to tailor collection precisely to obtain only communications that are strictly relevant to the investigation. The government argued that, in any event, ?the tailoring analysis must be informed by the balance between the overwhelming national security interest at stake . . . and the minimal intrusion into privacy interests that will be implicated by collecting meta data especially meta data that will never be seen by a human being unless a connection to a terrorist-associated e-mail is found.? The government also stated that the NSA needed to collect meta data in bulk in order to effectively use analytic tools such as contact chaining that would enable the NSA to discover enemy communications. This argument echoed a premise many of?cials told us about the nature of intelligence gathering in general. For example, Baker likened the search for useful intelligence, particularly in the meta data context, to ?nding a needle in a haystack, stating, ?the only way to ?nd the needle is to have the haystack.? Gonzales argued that ?to connect the dots you ?rst have to collect the dots.? The application and supporting documents described the!types of e?mail meta data NSA sought authority to collect: APPROVED FOR PUBLIC RELEASE The were described as follows: represented that for most of the proposed collection on it was ?overwhelmingly likely? that at least one end of the transmitte communication either originated in or was destined for locations outside the United States, and that in some cases both ends of the communication were entirel overseas?37 However the eve APPROVED FOR PUBLIC RELEASE As discussed below, the government argued and the FISA satis?ed the de?nitions of pen register and trap under FISA and Title 18. See 50 U.S.C. 1841(2); 18 U.S.C. 3127(3) 85 (4). The application also explained the proposed archiving and querying process. According to the application, the collected meta data would be stored in a secure NSA network accessible only through two administrative login accounts and by specially?cleared meta data archive system administrators. Each time the database was accessed, the retrieval request would be recorded for auditing purposes. APPROVED FOR PUBLIC RELEASE The application proposed allowing 10 NSA access to the database?? The NSA were to be briefed by the NSA Of?ce of General Counsel concerning the circumstances under which the database could be queried, and all queries would have to be approved by one of seven senior NSA of?cials.239 The application explained that the bulk collection wo with articular e-mail addresses in order to conduct chainin ?m proposed that queries of ?ue e?mail meta data archive wou be performed when the e-mail address met the following standard: based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are facts giving rise to a reasonable articulable suspicion that a particular known e~mai1 address is associated wi to use the reasonable articulable the database with ecific addressin informatio In addition, the NSA proposed applying the minimization procedures in the United States Signals Intelligence Directive 18 (USSID 18) to minimize the information reported concerning U.S. persons. According to the application, compliance with these minimization procedures would be Under the application the iovernment imposed that it be authorized under 933 At the governmen ber of NSA was increased to 15 when the Order was renewed 239 When it granted the govemment?s application, the FISA Court noted that in conventional pen register and trap and trace surveillances a. court ?rst reviews the application before a particular e-mail account can be targeted. The FISA Court stressed the importance of the NSA Of?ce of General Counsel?s obligation to ensure that the legal adequacy for such queries was met. APPROVED FOR PUBLIC RELEASE WEE-SEW monitored by the InSpector General and General Counsel. The government also proposed that in each renewal application the NSA would report to the FISA Court on queries that were made during the prior period and the application of the reasonable articulable suspicion standard for determining that queried addresses were terrorist?related. The application and supporting documents explained how the SA intended to use the collected meta data. The NSA sought to use the meta dat to a sophisticated algorithms to develop contact chaining .240 In the application, the NSA estimated that through external intelligence gathering and internal analysis it would meet the proposed querying standard on average less than once a day. The SA further estimated that these queries would generate approximately 400 tips to the FBI and cm per year.241 Of these tips to the FBI and CIA, the SA projected that 25 percent would include U.S. person information, amounting to leads including information on about ?four to ?ve U.S. persons each month.? 4. Judge Kollar-Kotelly Raises Questions about Application On? Judge Kollar-Kotelly wrote Baker to inform him that she was considering the application and was in the process of preparing an opinion and order in response to it. She wrote that before the opinion and Order could be completed, however, she required written responses to two questions: (1) Apart from the First Amendment proviso in the statute (50 U.S.C. 1842(a)(1), what are the general First Amendment implications of collecting and retaining this large volume of information that is derived, in part, from the communications of U.S. persons? (2) For how long would the information collected under this authority continue to be of operational value to the counter-terrorism investigation(s) for which it would be collected? Baker responded in a letter to the FISA Court on? Concerning the first question, Baker?s letter asserted that the proposed 240 These analytic tools are discussed in Chapter Three. (U) 241 The NSA at this estimate based on the assu that each query could be expected to generat __e-mail addresses ?one level out,? an addresses ?two levels out.? The overall number of direct and indirect contacts with the Viriitial seed address would be signi?cantly reduced using ?analytical tradecraft.? APPROVED FOR PUBLIC RELEASE collection activity was consistent with the First Amendment and that he could ?nd no reported decisions holding that the use of pen register and trap and trace devices violated the First Amendment. WSW In his letter, Baker argued that although the meta data collection would include entirely innocent communications, a good-faith investigation does not violate the First Amendment simply because it is ??broa[d] in scope?? (quoting Laird v. Tatum, 408 U.S. l, 10 (1972)). He also wrote that the use of the collected meta data would be ?narrowly constrained? because the querying standard for the meta data would be sub'ect to a ?reasonable articulable suspicion? of a nexus to {ans-H-Sl?l-NF-l? Regarding Judge Kollar?Kotelly?s second question concerning how long the collected meta data would continue to be of operational value, Baker wrote that, based on the analytic jud information would continue to be relevant to for at least 18 months. Baker also advised that the NSA believed the e-mail meta data would continue to retain operational value beyond 18 months, but that it should be stored ?off?line? and be accessible to queries only by a specially-cleared administrator. Baker proposed that 3 years after the 18-month timeframe, or 4% years after it is ?rst collected, the meta data could be destroyed.242 5. FISA Court Order (U) In response to the application and follow-up questions, on July 14, 2004, Judge Kollar?Kotelly signed a Pen Register and Trap and Trace Opinion and Order based on her ?ndings that the proposed collection of e?mail meta data and the government?s proposed controls over and dissemination of this information satis?ed the requirements of FISA. The Order granted the government?s application in all key respects. It approved for a period of 90 da 5 the collection within the United States of e-mail meta data The Order also required the government to comply with certain additional restrictions and procedures either adapted from or not originally proposed in the application. In the Order, the Court fOund that the information to be collected was ?dialing, routing, addressing, or signaling information? that did not include 242 0? the FISA Court issued an order authorizing the NSA to maintain bulk meta data for 49?: years after which time it must be destroyed. According to the NSA Of?ce of General Counsel, the NSA still follows this retention procedure, APPROVED FOR PUBLIC RELEASE the contents of any comm 'on. The Court stressed that it was only authorizing collection of th categories of information delineated in the application, but acknowledged that additional information ?could be gleaned? from that meta data The Court found that the means categories of meta data were to be collected met the FISA de?nition of a ?pen register,? and that the means for collecting th category of meta data satis?ed the FISA de?nition of a ?trap and trace device.? See 18 U.S.C. 3127(3) 85 as incorporated in FISA at 50 U.S.C. 1841(2). The Court further found that the government satis?ed requirement that the application certify that the information likely to be obtained is relevant to an ongoing investigation to protect against international terrorism. The Court concluded that, ?under the circumstances of this case, the applicable relevance standard does not require a statistical ?tight between the volume of proposed collection and proportion of information that will be directly relevant to FBI investigations.?243 The Court also agreed with the government?s position that the privacy interest at stake in the collection of e-mail meta data did not rise to the ?stature protected by the Fourth Amendment,? and that the nature of the intrusion was mitigated by the restrictions on accessing and disseminating the information, only a small percentage of which would be seen by any person. In sum, the Court concluded that the use of pen register and trap and trace devices to collect e-mail meta data would not violate the First Amendment, stating that the bulk collection proposed in this case is analogous to suspicionless searches or seizures that have been upheld under the Fourth Amendment in that the Government?s need is compelling and immediate, the intrusion on individual privacy interests is limited, and bulk collection appears to be a reasonably effective means of detecting and monitoring 243 The Court cautioned that its ruling with regard to the breadth of the meta data collection should not be construed as precedent for similar collections of the full content of communications under the electronic surveillance provisions of FISA. The Court noted important differences in the two types of collection, including the fact that overbroacl electronic surveillance requires a showing of probable cause to believe the target is an agent of a foreign power, while the bulk meta data collection under pen register and trap and trace device provisions merely require overbroad collection is justi?ed as necessary to discover unknowrWersons. The Court also contrasted the high privacy interests at stake with respect to content communications with the absence of a privacy interest in meta data. APPROVED FOR PUBLIC RELEASE related 0 eratives and thereby obtaining information likely to bite ongoing FBI investigations. However, the Court also was concerned that ?the extremely broad nature of this collection carries with it a heightened risk that collected information could be subject to various forms of misuse, potentially involving abridgement of First Amendment rights of innocent persons.? The Court noted that under 50 U.S.C. 1842(c)(2), pen register and trap and trace information about the communications of a U.S. person cannot be targeted for collection unless it is relevant to an investigation that is not solely based upon the First Amendment. Therefore, the Court ordered that the NSA modify its criterion for querying the archived data by inserting the following underlined language, as shown below: will qualify as a seed Only if NSA conc1udes, based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are facts giving rise to a reasonable articulable suspicion that a articular known e-mail address is associated with rovided however that an believed to be used a U.S. erson shall not be re arded as associated with solely on the basis of activities that are protected by the First Amendment to the Constitution. Regarding the storage, accessing, and disseminating of the e?mail meta data obtained by the NSA, the Court ordered that the NSA must store the information in a manner that ensures it is not commingled with other data, and must ?generate a log of auditing information for each occasion when the information is accessed, to include the . . . retrieval request.? The Court further ordered that the e?mail meta data ?shall be accessed only through queries using the contact chaining as described by the NSA in the government?s application. The Court noted the ?distinctive legal considerations? involved in implementing the authority the Court was vesting in the NSA. Speci?cally, the Court observed that conventional pen register and trap and trace surveillance required judicial review before any particular e-mail account could be targeted. However, by granting the government?s application, the Court noted that the cision to target an e?mail address (sometimes referred to as a ?see would be made without judicial review. Therefore, the Court ordered that the Of?ce of General Counsel would be responsible for training to comply with querying standards and APPROVED FOR PUBLIC RELEASE other procedures and ?to review the legal adequacy for the basis of such queries, including the First Amendment proviso . . . As suggested by Baker in hismresponse to Judge Kollar-Kotelly?s inquiry regarding the use 11 of the collected data, the Court ordered that the e-mail meta data shall be available for 18 querying. The Court further ordered that after the 18-month period, the data must be transferred to an ?off-line? tape system from which it could still be accessed for querying upon approval of the NSA officials authorized to approve queries, and that such meta data must be destroyed 41/2 years after initially collected. The Court?s Order was set to expire after 90 days. The Court required that any application to renew or reinstate the authority granted in the Order must include: a report discussing queries made since the prior application and the application of the re uisite 1e al standard to those queries; detailed information regardinhproposed to be added to the authori ranted under the Order; any changes to the description of the described in the Order or the nature of the communications means of collection, of the pen register and including to the trap and trace devices Finally, the Court issued separate orders to assist the NSA with the installation and use of the pen register and trap and trace devices and to maintain the secrecy of the orders called ?secondary orders,?m The NSA was directed to compensate the carriers for all assistance provided in connection with the Order. Baker and other witnesses told us that obtaining the Order was seen by the Department as a great success, and that there was general agreement that the government had secured all the authori it sou ht to conduct the bulk e-mail meta data colle Comey told us that obtaining the Order from the FISA Court also provided an ?air of legitimacy? to the program?? Comey and others informally referred to the Order as ?the mother of all pen registers.? APPROVED FOR PUBLIC RELEASE B. President Orders Limited Use? E?mail meta data collection under FISA pen register authority began when the Order took effect on July 14, 2004. As re uired the Order the data was laced in its own database or ?realm.? WSW We discuss below the President?s directive and the OLC memorandum that was drafted to analyze its legality. 1. The President?s August 9, 2004, Memorandum to the Secretary of Defense On August 9, 2004, the same day a routine Presidential Authorization was issued to continue Stellar Wind, the President sent a separate memorandum to the e-mail meta data collecte The memorandum directed the Secretary of Defense that, consistent with the August 9, 2004, Presidential Authorization (and any successor Presidential Authorizations the NSA was authorized to e-mail meta data when there was a reasonable articulable sus icion that (1) a party to the communication belonged to and intelli ence information ?5 The President?s Memorandum provided that the authority to conduct such searches was to terminate on September 23, 2004. In the September 17, 2004, Presidential Authorization, this authority was extended until November 18, 2004. APPROVED FOR PUBLIC RELEASE 2. Of?ce of Leial Counsel Determine (48W Jack Goldsmith resigned as Assistant Attorney General for the Of?ce of Legal Counsel on July 30, 2004. Goldsmith was replaced by Daniel Levin, who served as the Acting Assistant Attorney General for OLC until February 2005. (U) During late 2004, at the request of Comey and Ashcroft, Levin began work on an OLC memorandum addressing whether it would be lawful for the NSA to anal ze the e?mail meta ugh-mg! ll gun-n} hungry-nu I n: 245 The e-mail meta data has since been placed on tape and is being held by the SA 0 ice'of'G?e'?eral Counsel pursuant to a preservation order. 247 The ?nal version of the OLC memorandum was signed by Levin on February 4, 2005. Levin told the OIG that a ?poli de 5 made 0 ?t 'c 'o of the memorandum to the speci?c purpose However, Levin stated that, based on his analysis of the issue, he believed that (Cont?cl.) APPROVED FOR PUBLIC RELEASE Thus, the President asserted extrajudicial authority to order the further use of e-majl meta data collected under Stellar Wind for the limited purpose described in his August 9 memorandum. The FISA Court was noti?ed of this action, although the government did not seek its permission. W) C. Non-Compliance with Order As with other orders issued under FISA, the Order was renewed every 90 days. During the early renewals, two major instances of non-compliance were brought to the FISA Court?s attention. As described below, these violations of the Order resulted primarily from the SA senior officials? failure to adequately communicate the technical requirements of the Order to the SA operators tasked with implementing them, and from miscommunications among the FISA Court, the Justice Department, and the NSA concerning certain legal issues. 1. Filtering Violations ?led a Notice of Compliance Incidents with the FISA Court. In the Notice, Baker stated that the com liance incidents cited in the Notice ?raise compliance issues with about :of the collection authorized by the Court.?248 The Notice included as an attachment a letter from NSA General Counsel Robert Deitz to Baker describing incident th t1 (1 orized collection.? Deitz learned of these incidents .249 ?could be queried for any purpose. Levin told us that, other than Addington, no one else was pushing to broaden the memorandum?s application. 243 Subsequent filings indicate that-of overall collections under the Order were affected by the violations. 249 One tipper that was based on this unauthorized collection was disseminated as a lead to the FBI but was subsequently retracted. (Cont?d.) APPROVED FOR PUBLIC RELEASE Baker told us that Jud Kollar-Kotelly was ?not happy? about the violation. 0 the FI an Order Regarding (Compliance Order). The Court wrote that the violated its own proposed limitations, which were attested to by its Director and, at the government?s invitation, adopted as provisions of the orders of this Court.? The Court found that the violations ?resulted from deliberate actions by NSA personnel,? as distinguished from technical failures. The Court stated it was also troubled violations, which extended from July 14 through and that the Court was reluctant to issue a renewal of the PKfi?l?Urd?er as'tb same day, the Court issued an Order to address - Order i tion for Authorities Involving requiring that ani aiilication for renewal or rities be accompanied by a sworn declaration by the Secretary of Defense attesting to the state of compliance with the Order and a description of the procedures that would be used to ensure compliance. On the government moved for an extension of time (until W1 in which to provide the Secretary of Defense?s declaration. The motion which the Court granted, assured the Court that surveillance had been terminated on ?se? 'arate?atabas'eall meta data obtained through The NSA also represented that it reconstructed its contact chaining database using only properly obtained meta data and purged the unauthorized meta data from the system. A declaration by NSA Director den accompanying the government?s motion stated a total Die-mail addresses were ti ped as leads to the FBI and CIA during the violation period and tha of these leads may have come from the unauthorized collection. Hayden wrote that APPROVED FOR PUBLIC RELEASE is 1 ad was purged from the and databases on- es?swaa The NSA Of?ce of the Inspector General subsequently issued a report on its investigation of the unauthorized collections. The NSA OIG report stated that the ?ltering violations ?probably led to actual unauthorized collection, but we have not been able to determine the extent of such collection, and we are not certain that we Will be able to do so.? The report further stated that the collection ro - am under PR TT Order authori was The re ort concluded that ?there were 3 stemic mana ement failures within both within the Signals Intelligence Directorate (SIDH, and a complete lack of program management with regard to collection.? The report stated that while the training provided by the NSA Of?ce of General Counsel was ?vigorous, conscientious, and compliant with the July 14 Order, it was inadequate in scope.? According to the report, the SA removed as much of the tainted collection from the database as ossible. The NSA was unable to segregate unauthorized collection from so it rebuilt that portion of the database from (the day after the violation was discovered), forward. Moreover, according to the NSA OIG report, analytical personnel were restricted from accessing the unauthorized meta data. WW 2. FISA Court Renews Order 415M) The FISA Court?s Order expired on_ On that date the government ?led its ?rst renewal application. The Renewal A lication sought authorization to collect e-mail meta data 0 and stated that the SA had fully complied with the Order with respect to The overnment did not seek reauthorization for collection due to a variety of APPROVED FOR PUBLIC RELEASE Judge Kollar?Kotell si ned the Renewal Order 0- authorizing he use of pen register and trap and trace devices at to collect e-mail meta data. The Renewal Order and the original Order were similar in most respects. However, in the Renewal Order the Court required the NSA to submit reports every 30 days concernin ueries made since the prior describin an Chan es made to Baker told us that during one of his ?oversight? visits to the NSA following the FISA Court?s Order, he was given a demonstration of how the SA processed the e-mail meta data, including an explanation of how e-mail meta data is collected and queried. Baker said he was informed that among the pieces of data that might be used to meet the reasonable articulable standard for ue 1 the e?mail me . . 251 In the initial PR Order, the Court required such a report only upon the government?s submission of a renewal application every 90 days. 1?59 As noted above, seed are e-mail addresses or tele hone here for which a reasonable articulable su?s'pTCi?on exists to believe th is related to a terrorist entity. See are used to query the meta datadatabase?to reveal links with other addresses APPROVED FOR PUBLIC RELEASE APPROVED FOR PUBLIC RELEASE D. Subsequent PRITT Applications and Orders As described above, the Order was ?rst renewed on- - and was renewed by subsequent orders of the FISA Court at approximately 90-day intervalspse; (IS 5 ls; (NE) On the FISA Court issued a Supplemental Order requiring the government to enhance its reporting to the Court of the foreign intelligence bene?ts realized under the Orders. Writing for the FISA Court, Judge Kollar-Kotelly stated that the authority granted under these NSA ?to collect vast amounts of information about e-mail but that ?the Court is unable on the current record to ascertain the extent to which information so collected has actually resulted in the foreign intelligence benefits originally anticipated.? Supplemental Order at 1-2. The government responded with a motion requesting that, in light of prior brie?ngs it had given the FISA Court, it not be required to fully comply with the Supplemental Order. It is not clear what if any speci?c action the FISA Court took in response to this motion, although based on the review of the PR TT docket the government continued to submit regular reports to the FISA Court. WW Under the renewal applications the scope of authorized queries a ainst the PR database remained limited to ueries that concerned 254 In these renewals,?were added and dropped fro- .that were approved in the July 14, 2004, Order. APPROVED FOR PUBLIC RELEASE WSW Although the FISA Court continued to renew the authority to collect and ue e-mail meta data and the NSA roceeded under that II. Telephony Meta Data Collection Under FISA The second part of the Stellar Wind program brought tinder FISA authority was the bulk collection of telephony meta data (basket 2). As described in Chapter Three, under this aspect of the Stellar Wind program the NSA obtained the call detail ele hone calls domestic and international As Eli-nail meta data, the bulk records consist of routing information, including the originating and terminating telephone number of each call, and the date, time, and duration of each call. The call detail records do not include the substantive content of any communication or the name, address, or ?nancial information of a subscriber or customer. APPROVED FOR PUBLIC RELEASE nature of the tele hony collection provided the SA the abili to conduct The transition of bulk telephony meta data collection from Presidential Authorization under the Stellar Wind program to FISA authority relied on a provision in the FISA statute that authorized the FBI to seek an order from the FISA Court compelling the production of ?any tangible things? from any business, organization, or entity, provided the items are for an authorized investigation to protect against international terrorism or clandestine intelligence activities. See 50 U.S.C. 1861. Orders under this provision commonly are referred to as ?Section 215? orders in reference to Section 215 of the USA PATRIOT ACT, which amended the ?business records? provision in title of FISA.253 The ?tangible things? the government sought in the Section 215 a lica 'o scribed in this section were the call detail records . We describe below the circumstances that led to the government?s decision to transition the bulk collection of telephony meta data from presidential authority to FISA Authority. We then summarize the government?s initial application and the related Court Order. A. Decision to Seek Order Compelling Production of Call detail records The timing of the Department?s decision in May 2006 to seek a FISA Court order for the bulk collection of telephony meta data was driven primarily by external events. On December 16, 2005, The New York Times published an article entitled, ?Bush Lets U.S. Spy on Callers Without Courts.? The article, which we discuss in more detail in Chapter Eight, described in broad terms the content collection aspect of the Stellar Wind program, stating that the NSA had ?monitored the international telephone calls of hundreds, perhaps thousands, of people inside the United States without warrants over the past thre ?dirty numbers? linked to al Qaeda.? 1?53 The term PATRIOT Act? is an acronym for the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001). It is commonly referred to as ?the Patriot Act.? (U) APPROVED FOR PUBLIC RELEASE On December 17, 2005, in response to the article, President Bush publicly con?rmed that he had authorized the NSA to intercept the international communications of people with ?known links? to al Qaeda and related terrorist organizations (basket 1). On January 19, 2006, the Justice Department issued a document entitled ?Legal Authorities Supporting the Activities of the National Security Agency Described by the President? and informally referred to as a ?White Paper,? that addressed in an unclassi?ed form the legal basis for the collection activities that were described in the New York Times article and con?rmed by the President. According to Steven Bradbury, the head of OLC at that time, the legal analysis contained in the White Paper? Although the New York Times article did not describe this aspect of Stellar Wind, reporters at USA Today were asking about this aspect of the program in early 2006. Bradb anticipated that a USA Today story would attract signi?cant public attention when it was published.259 259 On May 11, 2006, USA Today published the results of its investigation. The article, entitled Has Massive Database of American Phone Calls,? reported that the NSA ?had been secretly collecting the phone call records of tens of millions of Americans, using data provided by Verizon, and BellSouth.? The article stated that the program, launched shortly after the September 1 attacks, collected the records of billions of domestic calls in order to analyze calling patterns to detect terrorist activity. The article reported that the records provided to the SA did not include customer names, street addresses, and other personal information, but noted that such information was readily available by cross-checking the telephone numbers against other databases. APPROVED FOR PUBLIC RELEASE B. Summary of Department?s Application and Related FISA Court Order As noted previously, applications to the FISA Court that seek an order compelling the production of ?tangible things? are commonly referred to as ?Section 215? applications, in reference to Section 215 of the USA PATRIOT ACT. Section 215 authorizes the FBI to request a FISA Court order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the ?rst amendment to the Constitution. (U) 50 U.S.C. Section 215 does not require that the items sought pertain to the subject of an investigation; the government need only demonstrate that the items are relevant to an authorized investigation.262 (U) On May 23, 2006, the FBI ?led with the FISA Court a Section 215 application seeking authority to collect telephony meta data to assist the 'fying known and unknown members or agents 0. in support of the related FBI investigations then pending and other Intelligence Communi erations. The application requested an order compelling to produce (for the duration of the 90-day order) call detail records relating to all telephone communications maintained by the carriers. The application described call detail records as routing information that included the 251 ?United States person? is defined in FISA as a citizen, legal permanent resident, or unincorporated association in which a ?substantial number? of members are citizens or legal permanent residents, and corporations incorporated in the United States as long as such associations or corporations are not themselves "foreign powers.? 50 U.S.C. 1801(i)(2005). (U) 252 Prior to the enactment of Section 215, the FISA statute?s ?business records? provisions were limited to obtaining information about a speci?c person or entity under investigation. Also, information could be obtained only from common carriers, public accommodation facilities, physical storage facilities, and vehicle rental facilities. (U) APPROVED FOR PUBLIC RELEASE 49W originating and terminating telephone number of each call, and the date, time, and duration of each call. The application stated that telephony meta data did not include the substantive content of any communication or the name, address, or ?nancial information of a subscriber or customer. According to the application, the majority of the telephony meta data provided to the NSA was expected to involve communications that were (1) between the United States and abroad, or iZi wholli within the United States, including local telephone calls. .263 swam The application acknowledged that th collection would include records of communications of US. persons located within the United States who were not the subject of any FBI investigation. However, relying on the precedent established by the PR Order, the application asserted that the collection was needed for the SA to perform analysis to ?nd know and to identify unknown operatives, some of whom may be in the United States or in communication with US. persons. The application stated that it was not possible to determine in advance which particular piece of meta data will identify a terrorist. The application stated that obtaining such bulk data increases the ability, through contact-chainin to detect and identify members 0- .254 In other words, according to the application, meta data analysis is possible only if the SA ?has collected and archived a broad set of metadata that contains within it the subset of communications that can later be identi?ed as rage amount of telephony meta data 253 The NSA told us that collects '3 approximately call detail records and that the ?gure has not reache 254 2?55 The FISA Court had stated in its July 2004 Order that the FISA statute?s ?relevance? requirement is a relatively low standard and that in evaluatin whether bulk meta data is ?tat-taut" to an investigation should be given to the fully considered judgment of the executive ranch in assessing and responding to national security threats and in determining the potential signi?cance of intelligence-related information.? The government cited this precedent in the Section 215 application, statin ust as the bulk collection of e?mail meta data was relevant to FBI investigations int so is the bulk collection of telephony metadata described herein.? APPROVED FOR PUBLIC RELEASE EEV'T?liedatabame queried only if the NSA determined that, ?based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are facts giving rise to a reasonable, articulable sus icion that the telephone number is associated wi the section 215?lication, like the application and?order, added the following proviso to the query standard: ?provided, however, that a telephone number believed regarded as associated wi solely on the basis of activities that are protected by the First Amendment to the Constitution.? According to the application, the SA estimated that only a tiny fraction (1 in 4 million, or 0.000025 percent) of the call detail records included in the database were expected to be analyzed. The results of any such analysis would be provided, or ?tipped,? to a enci bein The application also proposed restrictions on access to, and the processing and dissemination of, the data collected that were essentially identical to those included in the Order. These included the requirement that queries be approved by one of seven SA of?cials or managers and that the Of?ce of the General Counsel would review and approve proposed queries of telephone numbers reasonably believed to be used by U.S. persons.267 25" The application included several other measures to provide oversight of the use of meta data, such as controls on the dissemination of any- U.S. person information, the creation of a capability to audit NSA with access to the meta data, the destruction of collected meta data after a period of 5 years [the destruction period for e-mail meta data was years), and a review by the Inspector General and General Counsel conducted within 45 days of implementing the FISA Court order that assessed the (Cont?d.) APPROVED FOR PUBLIC RELEASE On May 24, 2006, the FISA Court approved the Section 215 application. The Court?s Order stated that there were reasonable grounds to believe that the telephony meta data records sought were relevant to authorized investigations being conducted by the FBI to protect against international terrorism. The Order incorporated each of the procedures proposed in the government?s application relating to access to and use of the meta data. These procedures included a requirement that any application to renew or reinstate the authority for the bulk collection contain a report describing the queries made since the Order was granted; (2) the manner in which the procedures relating to access and use of the meta data were applied; and (3) any proposed changes in the way in which the call detail records would be received from the communications carriers. The Order also requires the Justice Department to review, at least every 90 days, a sample of the justi?cations for querying the call detail records. Through March 2009, the FISA Court renewed the authorities granted in the May 24 Order at approximately 90-day intervals, with some modifications sought nou;_u_ Except for these and other minor mo 1cat10ns, A Lourt 8 grant of Section 215 authority for the bulk collection of telephony meta data remained essentially Further, the FISA Court?s Section 15 Orders did not require the SA to modify its use of the telephony meta data from an analytical perspective. However, as discussed below, the FISA Court drastically changed the authority contained in its March 2009 Section 215 Order following the government?s disclosure of incidents involving the failure to comply with the terms of the Court?s prior orders. adequacy of the management controls for the processing and dissemination of US. person information. 253 As noted above, the Court granted an identical motion at the same time in connection with the bulk collection of e-mail meta data. APPROVED FOR PUBLIC RELEASE C. Non-Compliance with Section 215 Orders On January 9, 2009, representatives from the Department?s National Security Division attended a brie?ng at the SA concerning the telephony meta data collection. During the course of this brie?ng, and as con?rmed by the NSA in the days that followed, the Department came to understand that the NSA was querying the telephony meta data in a manner that was not authorized by the FISA Court?s Section 215 Orders. Speci?cally, the SA was on a daily basis automatically querying the meta data with thousands of telephone identi?ers from an ?alert list? that had not been determined to satisfy the reasonable articulable suspicion (RAS) standard the Court required be met before the NSA was authorized to ?access the archived data? for search or analysis purposes.259 The alert list contained telephone identi?ers that were of interest to NSA counterterrorism responsible for tracking the tar ets of the Section 215 Order The list was used Under the procedures the NSA had 215 authority, alerts (or matches) generated from RAS-approved identi?ers could be used to automatically conduct contact chainin of the telephony meta data. However, automated an ysis for alerts generated by non-RAS approved identifiers were not permitted instead the alerts were sent to to determine whether chaining?as warranted in accordance with the RAS standard. On January 15, 2009, the Justice Department noti?ed the FISA Court that the NSA had been accessin the approved identi?ers. .270 On January 28, 2009, the 259 The term ?telephone identi?er" used by the government means a telephone number as well as other unique identi?ers associated with a particular user or telecommunications device for purposes of billing or routing communications. Wrin? 270 Following the Department's notice to the Court, the SA attempted to complete a software fix to the alert process so that ?hits? against the telephony meta data generated by non-RAS-approved telephone identi?ers were deleted and that only ?hits? generated by RAB?approved identi?ers were sent to NSA for further analysis. The NSA also attempted to construct a new alert list consisting of only RAS-approved telephone identi?ers. However, the implementation of these modi?cations was unsuccessful and on January 24, 2009, the SA shut down the alert process completely. APPROVED FOR PUBLIC RELEASE Court issued an order stating that it was ?exceptionally concerned about what appears to be a ?agrant violation of its Order in this The Court required the government to ?le a brief to ?help the Court assess whether the Orders in this docket should be modi?ed or rescinded; whether other remedial steps should be directed; and whether the Court should take action regarding persons responsible for any misrepresentations to the Court or violation of its Orders, either through its contempt powers or by referral to appropriate investigative of?ces.? The Court also required the government to address several additional speci?c issues, including who knew that the alert list being used to query the meta data included identi?ers that had not been determined to meet the reasonable and articulable suspicion standard, how long the ?unauthorized querying? had been conducted, and why none of the entities the Court directed to conduct reviews of the meta data collection program identi?ed the problem earlier.271 On February 17, 2009, the government responded to the Court?s Order and acknowledged that the previous descriptions to the Court of the alert list process were inaccurate and that the Section 215 Order did not authorize the government to use the alert list in the manner that it did. The government described for the Court in detail how the NSA developed procedures in May 2006 to implement the Section 2 15 authority that resulted in the SA querying the telephony meta data with non-RAS approved telephone identi?ers for over 2 years in violation of the Court?s Orders, and how those procedures came to be described incorrectly to the Court. According to the government, the situation resulted from the interpretation of the term ?archived data? used in the Court?s Orders and the mistaken belief that the alert process under the Section 215 authority operated the same as the alert process under the Pen Register/Trap and Trace authority.272 The government told the Court that ?there was never a complete understanding among key personnel? who reviewed the initial report to the Court describing the alert process about 271 The entities directed to conduct such reviews under the Section 2 15 Orders were the Inspector General, General Counsel, and Signals Intelligence Directorate Oversight and Compliance Of?ce. 272 The NSA understood the term ?archived data? in the Court?s Order to refer to the anal ical re osit for the tel hon meta ta A term 's A be eved that requirement to satisfy the RAS standard was only triggered when the SA sought access to the stored, or ?archived,? repository of telephony meta data. For this reason, in the View, it was not required to limit the alert list to RAS?approved identi?ers. APPROVED FOR PUBLIC RELEASE what certain terminology was intended to mean, and that ?there was no single person who had complete technical understanding of the BR FISA. system The government argued that the Section 215 Orders should not be rescinded or modi?ed ?in light of the signi?cant steps that the Government has already taken to remedy the alert list compliance incident and its effects, the signi?cant oversight modi?cations the Government is in the process of implementing, and the value of the telephony metadata collection to the Government?s national security Among the several measures the government highlighted to the Court was the NSA Director?s decision to order ?end-to-end system engineering and process reviews (technical and operational) of NSA's handling of [telephony] metadata.? Less than two weeks after the government ?led the response summarized above, the government informed the Court that the SA had identi?ed additional compliance incidents during these reviews.274 In Orders dated March 2 and 5, 2009, the FISA Court addressed the compliance incidents reported by the government and imposed drastic changes to the Section 215 authorities previously granted. The Court ?rst addressed the interpretation of the term ?archived data.? The Court said the interpretation ?strains credulity? and observed that an interpretation that turns on whether the meta data being accessed has been ?archived? in a particular database at the time of the access would ?render compliance with the RAS requirement merely optional.? 7777 The SA also de'tmermine?dvthat in all instances that a US. telephone identi?er was used to query the meta data for a report, the identi?er was either already the subject of a FISA Court order or had been reviewed by the Of?ce of General Counsel to ensure the RAS determination was not based solely on a US. person?s First Amendment-protected activities-WW? 974 The additional compliance incidents involved the handling of the telephony meta data in an unauthorized manner. The first incident involved the use of an analytical tool to query [usually automatically) the meta data with non-RAS approved telephone identi?ers. The tool determined if a record of a telephone identifier was present in NBA databases and, if so, provided with information about the calling activity associated with that identi?er. The second incident involved three who conducted chaining analyses in the telephony meta data using 14 non-HAS approved identifiers. According to the government?s notice to the Court, the conducted queries of authorized telephony meta data and were unaware their queries also ran against the FISA?authorized meta data. The government stated that none of the queries used an identi?er associated with a U.S. person or telephone identi?er and none of the queries resulted in intelligence reporting. APPROVED FOR PUBLIC RELEASE 102W The Court next addressed the misrepresentations the government made to the Court from August 2006 to December 2008 in reports that inaccurately described the alert list process. The Court recounted the speci?c misrepresentations and summarized the government?s explanation for their occurrence. The Court then concluded, Regardless of what factors contributed to making these misrepresentations, the Court ?nds that the government?s failure to ensure that responsible officials adequately understood the alert list process, and to accurately report its implementation to the Court, has prevented, for more than two years, both the government and the FISC from taking steps to remedy daily violations of the minimization roced forth in FISC orders and designed to protec detail records pertaining to telephone communications of US. persons located Within the United States who are not the subject of any FBI investigations and whose call detail information could not otherwise have been legally captured in bulk- The Court also addressed the additional non?compliance incidents that were identi?ed during the initial review ordered by the NSA Director, observing that the incidents occurred despite the NSA implementing measures speci?cally intended to prevent their occurrence. In view of the record of compliance incidents the government had reported to date, the Court stated, [I]t has ?nally come to light that the authorizations of this vast collection program have been premised on a ?awed depiction of how the NSA uses BR metadata. This misperception by the FISC existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government?s submissions, and despite a government-devised and Court-mandated oversight regime. The minimization procedures proposed by the government in each successive application and approved and adopted as binding by the orders of the FISC have been so frequently and systemically violated that it can fairly be said that this critical element of the overall BR regime has never functioned effectively. Deepite the Court?s concerns with the telephony meta data program, and its lack of con?dence ?that the government is doing its utmost to ensure that those responsible for implementation fully comply with the Court?s orders,? it authorized the government to continue collecting telephony meta data under the Section 215 Orders. The Court explained that in light of the APPROVED FOR PUBLIC RELEASE government?s repeated representations that the collection of the telephony meta data is vital to national security, taken together with the Court?s prior determination that the collection properly administered conforms with the FISA statute, ?it would not be prudent? to order the government to cease the bulk collection. However, behaving that ?more is needed to protect the privacy of U.S. person information acquired and retained? pursuant to the Section 215 Orders, the Court prohibited the government from accessing the meta data collected ?until such time as the government is able to restore the Court?s con?dence that the government can and will comply with previously approved procedures for accessing such data.?275 The government may, on a case-by?case basis, request authority from the Court to query the meta data to obtain foreign intelligence.276 Such a request must specify the telephone identifier to be used and the factual basis for the RAS determination. The Court ordered that upon completion of the end-to?end system engineering and process reviews, the government ?le a report that describes the results of reviews, discusses the steps taken to remedy non-compliance incidents, and proposes minimization and oversight procedures to employ should the Court authorize resumption of regular access to the telephony meta data. The government?s report also must include an af?davit from the FBI Director and any other government national security of?cial deemed appropriate describing the value of the telephony meta data to U.S. national security. Additionally, the Court ordered the government to implement oversight mechanisms proposed in the government?s response to the compliance incidents. These mechanisms generally require the Justice Department?s National Security Division to assume a more prominent role in the administration of the bulk collection program. For example, the Of?ce of General Counsel must now consult with the National 275 The Court also stated, ?Given the Executive Branch?s responsibility for and expertise in determining how best to protect our national security, and in light of the scale of this bulk collection program, the Court must rely heavily on the government to monitor this program to ensure that it continues to be justi?ed, in the View of those responsible for our national security, and that it is being implemented in a manner that protects the privacy interests of U.S. 275 The Court authorized the government to query the meta data without Court approval to protect against an imminent threat to human life, with notice to the Court within the next business day of the query being conducted. The Court also authorized the government to access the meta data to ensure ?data integrity? and to develop and test technological measures designed to enable to the NSA to comply with previously approved procedures for accessing the meta data-WSWH? 236 APPROVED FOR PUBLIC RELEASE 46W Security Division on all signi?cant legal opinions that relate to the interpretation, scope, or implementation of past, current, and future Section 215 Orders related to the telephony bulk meta data collection. On May 29, 2009, the Court authorized the government to continue collecting telephony meta data under the Section 215 Orders for 43 days subject to the same limitations set out in its orders of March 2 and 5, 2009. Content Collection under FISA The third and last part of the Stellar Wind program brought under FISA authority was content collection (basket 1). The effort to accomplish this transition was legally and operationally complex, and our discussion in this section does not address each statutory element or the full chronology of the government?s applications and related FISA Court orders. Rather, we describe the circumstances surrounding the government?s decision to transition content collection from residential to FISA authori We also summarize the FISA Co ?8 response to government's content collection proposals and the orders it issued. In this section, we describe one FISA Court judge?s rejection of the government?s legal approach to content collection, a decision that hastened the enactment of legislation that signi?cantly amended the FISA statute and provided the government surveillance authorities broader than those authorized under Stellar Wind. A. Decision to Seek Content Order The Department ?rst began work on bringing Stellar Wind?s content collection activity (basket 1) under FISA in March 2005, shortly after Alberto Gonzales became Attorney General. Gonzales told us that he initiated discussions about making this change with OLC Principal Deputy Assistant Attorney General Bradbury. Gonzales said that he had questions about how the NSA was conducting the collection in terms of audits and checks being performed, and he wanted to ensure that the agency was running the program properly. Gonzales told us that placing content collection under FISA authority would also eliminate the constitutional debate about the activity and would reassure people that the President was acting according to the Constitution and the law. Gonzales said that, in his View, it is better to conduct activities such as content collection without a direct order from the President when possible. Gonzales added that in 2001 nobody thought it was possible to bring Stellar Wind under FISA authority. APPROVED FOR PUBLIC RELEASE TWW When Gonzales became Attorney General in early 2005, however, he also knew there had been a leak to The New York Times about the content collection activity under Stellar Wind and that the paper was actively investigating the story. In November 2004, Gonzales (then the White House Counsel), together with Deputy Attorney General Comey and his Chief of Staff, had met with New York Times reporters to discuss the potential In response to Gonzales?s request, Bradbury, working with attorneys in OLC and the Of?ce of Intelligence and Policy Review (OIPR) as well as with NSA personnel, devised a legal theory, summarized below, for bringing under FISA the Stellar Wind program?s content collection activities while preserving the ?speed and agility? many Intelligence Community of?cials cited as the chief advantage of the NSA program. In June 2005, Bradbury, together with Associate Deputy Attorney General Patrick Philbin, presented the legal theory to White House of?cials David Addington, Harriet Miers, and Daniel Levin and received their approval to continue work on a draft FISA application?" Bradbury told the OIG that he also spoke to the Director of National Intelligence and to NSA of?cials about bringing Stellar Wind?s content collection under FISA. According to Bradbury, the Director of National Intelligence responded positively to the proposal, but the NSA was skeptical as to whether a FISA approach would be feasible, in View of the substantial administrative requirements under the FISA Court?s Order. The NSA also believed that the FISA Court would be reluctant to grant the NSA the operational ?exibility it would insist on in any content application, resulting in less surveillance coverage of telephone numbers and e-mail addresses used by persons outside the United States. As discussed in detail in Chapter Eight of this report, in December 2005 The New York Times published its series of articles on the content collection portion of the Stellar Wind program, resulting in considerable controversy and public criticism of the SA program. Through the spring of 2006, the Department continued work on the content application. In May 2006, at the ?rst of the FISA Court?s semiannual meetings that year, the Department provided the Court a draft of the application for content collection to obtain feedback on the government?s unconventional approach to the FISA statute. None of FISA Court judges indicated whether the 27" The New York Times held the article until December 2005, when it published a series of articles on the content collection portion of Stellar Wind. 278 After serving as Acting Assistant Attorney General for OLC from June 2004 to February 2005, Levin joined the National Security Council, where he remained until approximately November 2005. (U) APPROVED FOR PUBLIC RELEASE 115W application would be granted if ?led, but some identi?ed concerns with certain aspects of the proposal. At this time, Congress and the Administration were also discussing how to modernize the FISA statute to authorize the type of electronic surveillance that the content application sought. Work on the application was temporarily suspended as the Department focused its attention on working with Congress to craft this legislation. However, this suspension of work on the content application was brief. Bradbury said he concluded by the fall of 2006, as Congress was heading for recess, that there would be no legislative reform of the FISA statute in the foreseeable future that would address content collection as it was being conducted under Stellar Wind. As a result, the Department pressed forward with the draft content application to the FISA Court. B. Summary of Department?s December 13, 2006, Content Application In November 2006, at the second of the Court?s semiannual meetings, the Department presented an updated draft of the application that incorporated feedback received from members of the Court during the previous semiannual meeting. On December 13, 2006, the Department formally filed the content application with the Court. The government?s December 13 application sought authority to interce the content of tele honic and electronic communications of application stated: eed and ?exibili are essential in trackin individuals who To follow 'the trails effectively, and to respond to new leads, it is vital for the US. Intelligence Community to be able quickly and efficiently to acquire communications to or from individuals reasonably believed to 279 The content application included the following caveat: By ?ling this application, the United States does not in any way suggest that the President lacks constitutional or statutory authority to conduct the electronic surveillance detailed herein without Court authorization. APPROVED FOR PUBLIC RELEASE be members or agents of thes foreign powers. According to the application, the goal was to establish ?an early and to assist tracking such ind1v1 uals withm the Unlted States. The ?early warning system? sought to replace the conventional practice under FISA of ?ling individual applications each time the government had probable cause to believe that a particular phone number or e-mail address, referred to by the NSA as a ?selector,? was being used or about to be used by members or agents of a foreign power. In the place of this individualized process, the application proposed that the FISA Court establish broad arameters for the interception of communications speci?cally, that can be targeted and the locations where the surveillance can be conducted and that NSA of?cials, rather than FISA Court judges, determine within these parameters the articular selectors whose communications the NSA would interce t. albeit with FISA Court review and supervision.280 The legal arguments underlying the government?s approach are complex and involve substantial communications terminology. They also require discussion of the FISA statute and previous FISA Court decisions. Rather than describe at length these issues, in this section we detail the two main components of the government?s approach to content collection in the FISA application that are critical for understanding one judge?s approval of the application and another judge?s later rejection of essentially the same application. First, the government proposed an interpretation of the term ?facility? in the FISA statute that was broader than how the term was ordinarily, but 230 The Department?s application provided an example to illustrate the risks associated with the existing requirement that FISA Court approval or Attorney General emergency authorization be obtained each time the overnment seeks to tar et a articular tele hone number or e-mail address: According to the application, valuable intel igence could be lost in the time it would take to receive FISA Court authorization or Attorney General emergency authorization to target the new address. APPROVED FOR PUBLIC RELEASE not always, applied.281 Section 1805(a)(3)(B) of FISA provides that the Court may order electronic surveillance only upon ?nding that there is probable cause to believe that ?each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by? a group involved in international terrorism. The term ?facilities? generally was interpreted to refer to individual telephone numbers or e-mail addresses at which surveillance is The government proposed in its content a ?facilities? be inter reted broadl to includ lication that the term .232 Under this approach, instead of examining the target 3 use of partlc ar telephone numbers or c-mail addresses, the Court would determine onl whether there was robable cause to believe that the target was usinHto communicate telephonically or by e-rnail.283 Second, the government?s application requested that senior NSA of?cials be authorized to make individualized ?ndings of probable cause about whether a particular telephone number or e-mail address was being used by a member or agent of one of the application?s targets. Ordinarily, a FISA Court judge makes this probable cause determination. To implement this transfer of authority, the government proposed that NSA of?cials make the probable cause determinations as part of requirements called ?minimization procedures,? which are detailed rules 231 The government?s Memorandum of Law ?led in support of the content application described several instances where the FISA Court authorized surveillance of facilities that was not limited to articular tele hone numbers and e-mail addresses. The government?s proposed interpretation of the term in the content application was far broader than reviously authorized by the Court. 283 wer a lication included a declaration from the NSA Director that addresse huse of the international telephone system and communications. APPROVED FOR PUBLIC RELEASE that govern how the government must handle communications that it intercepts pertaining to U.S. persons. The FISA statute provides that each FISA application must include, and the FISA Court must approve, minimization procedures that the agency will follow with respect to communications intercepted pursuant to a FISA Court order. Minimization procedures, in the FISA context, ordinarily govern the handling of intercepted communications involving U.S. persons the acquisition has been approved by the FISA Court. In other words, a FISA Court authorizes the agency to intercept the communications of particular selectors, and the agency follows the minimization procedures with respect to how it retains, uses, and disseminates any US. person information it collects under the Court?s However, the government proposed as part of the content application that the minimization procedures also encompass how the NSA acquires the communications.284 Speci?cally, the application proposed that the NSA could intercept the communications of speci?c selectors if agency of?cials determined there was probable cause to believe that 1 the selector is bein used by a member or agent of 21* _and (2) the communication is to or from a foreign country. The application referred to this as the ?minimization probable cause Thus, the content application had a two-prong ?minimization probable cause standard?: (1) probable cause to believe a selector is being used by a member or agent of a targeted group, and (2) probable caus lie 234 Bradbury told the OIG that this argument was based on the text of the FISA statute, which states that minimization procedures apply to the ?acquisition? of communications in addition to their retention and dissemination. See 50 U.S.C. 1801(h)(1). Indeed, the government?s Memorandum of Law ?led in support of the content application described several cases in which the FISA Court authorized the government to conduct electronic surveillance that included minimization at the time of acquisition. Accordin to the a lication the cases involved surveillance broadly targete than those the 935 The proposed ?minimization probable cause standard? was in addition to the standard minimization procedures that accompany every FISA application submitted by the government and that have been long-approved by the FISA Court. APPROVED FOR PUBLIC RELEASE WSW For the first prong probable cause to believe a selector is being used by a member or agent of a targeted group NSA would assess sources of ?reliable intelligence,? de?ned in the application as information from a variety of domestic and foreign intelligence and law enforcement activities. Under the terms of the application, positive ?ndings of probable cause would be recorded in a database and the assessment process would be subject to periodic internal review by NSA of?cials, including the NSA General Counsel and Inspector General. For the second prong probable cause to believe the communication interce ted is to or from a forei coun 287 285 The application acknowledged cepted at the ?facilities? could include some calls where the United States, orwhere -4.-, use to believe tha If the SA had probable 3 a the call could be intercepted. The application stated that such communications ouiu?be handled in accordance with standard minimization procedures that apply to all of the agency?s electronic surveillance activities. 23" As it did with telephone communications, the application acknowledged that the manner in which e-mail communications are routed would cause the SA to collect some e-mail communications that in fact are between communicants wholly within the United (Cont'd.) APPROVED FOR PUBLIC RELEASE Thus, viewing the government?s approach to both ?facilities? and ?minimization procedures? together, the December 13, 2006, content a lication asked the FIS engaged in international'terrorism, and that these groups use their?: Ila "ll.ll . n- Then, Within these broad parameters authorized by the als would make probable cause ?ndings about whether individual tele hone numbers 0 e- ail and whether the communications of those numbers and resses are to or from a foreign country. If they were, the NSA could direct the telecommunications carriers to intercept the communications of Under the terms of the application, communications acquired by the SA could be retained for 5 years, unless the Court approved retention for a longer The application also stated that the NSA expected to initially target tele hone numbers and e-mail addresses used members or An additional aspect of the content application is important to understand. The ?early warning system? the government proposed applied both to ?domestic selectors? and ?foreign selectors.? Domestic selectors are telephone numbers and e-mail addresses reasonably believed to be used by individuals in the United States; foreign selectors are telephone numbers and e-mail addresses reasonably believed to be used by individuals outside the United States. Under Stellar Wind, the SA intercepted the communications of both categories of selectors, although the SA tasked far more foreign selectors than domestic selectors. 133W States, even though the NSA had probable cause to believe the communication was to or from a foreign country. The application stated that the NSA would handle any such communications in accordance with its standard minimization procedures. APPROVED FOR PUBLIC RELEASE The government proposed in its content application that the domestic selectors would be subject to more rigorous targeting approval and more frequent reporting to the FISA Court than foreign selectors, but the application sought to preserve NSA of?cials? authority to make the probable cause determinations as to each.288 As we describe below, the first FISA Court judge to consider the content application, Judge Malcolm Howard, was unwilling to extend this authority to domestic selectors. C. Judge Howard Grants Application in The Department?s December 13, 2006, content application was assigned to Judge Howard, because he was the ?duty? judge that week responsible for considering new applications.289 Judge Howard advised the Department orally that he would not authorize, on the terms proposed in the application, the electronic surveillance of selectors to be used by persons in the United States (domestic selectors). He did not issue a written opinion or order concerning this decision. The Department, in response to Judge Howard?s oral advisement, ?led a separate application requesting authority to conduct electronic surveillance on domestic selectors. This application, summarized below, was ?led on January 9, 2007, and is considered the ?rst ?domestic selectors application?; the December 13 application is considered the ?rst ?foreign selectors application.? Judge Howard also requested additional brie?n from the ustice constituted ?facilities? under FISA, and whether the surveillance authority sought in the government?s content application would in fact be ?directed? not at these ?facilities? but rather at the particular telephone numbers and e-mail addresses the government would'task for collection. In response, the Department ?led a supplemental memorandum of law on January 2, 2007, arguing that the government?s construction of the 239 Under the terms of the original content application, domestic selectors tasked by the government would subsequently be reported to the Court for approval. The Court either had to approve each domestic selector within 48 hours of receiving the government?s report or, if the Court did not agree there was probable cause to believe the selector was being used by a member or agent of a target of the application, provide the government 24 hours to submit additional information establishing probable cause. Foreign selectors tasked by the government did not require subsequent approval by the Court, although the Court could direct that the surveillance of any selector 239 The Department offered to submit the application to the FISA Presiding Judge, Judge Kollar?Kotelly, but she said that it should be ?led in the normal fashion, which meant it would be assigned to the FISA duty judge that week. APPROVED FOR PUBLIC RELEASE terms ?facilities? and ?directed? was fully consistent with the text of FISA and supported by FISA Court practice and precedent. The memorandum further explained why the traditional approach to surveillance under FISA would not provide the Speed and agility necessary for the ?early warning system? the application sought to On January 10, 2007, Judge Howard approved the Department?s content application as to foreign selectors, endorsing the legal framework on which the content application for foreign selectors was based, including the broad construction of the term ?facility? and the use of minimization procedures to empower NSA of?cials to make targeting decisions about particular selectors. Judge Howard?s Order authorized the government to conduct electronic surveillance for a period of 90 days at the ?facilities? identi?ed in the a lication and was set to on A ril Judge Howard?s Order also required that an attorney from the Justice Department?s National Security Division review the justi?cations for targeting particular foreign selectors. The Order required the government to submit reports to the FISA Court every 30 days listing new selectors tasked during the previous 30 days and brie?y summarizing the basis for the determination that the ?rst prong of the minimization probable cause standard has been met for each new selector.292 The Order preserved the Court?s authority to direct that surveillance cease on any selectors for which 290 On this point, the memorandum cited the govemment?s limited resources as presenting a signi?cant obstacle to ?ling a separate FISA application for each selector it wanted to place unde surveillance. The government stated that it anticipated initiating collection 0? new selectors each month, a ?gure that translates to {ilk motion to amend a FISA order or seeking Attorney General emergency authority 7 times per day (or, alternatively ?lin one motion or seeking one Attorney General emergency authorization coveringh new selectors each day]. The government stated that if the government proceeded under any of these options, valuable intelligence would be lost. . 291 As noted earlier, the Order compelled? The Order also required that with each request for reauthorization, the government present a list of current selectors previously reported to the Court that the government intended to continue tasking, identify any selectors reasonably believed to be used by US. persons outside the United States, and as ion of communications that mentioned a tasked e-mail address but that were not to or from that selector. 299 As noted above, the ?rst prong of the standard is that the selector is bein used a member or a ent of a targets . APPROVED FOR PUBLIC RELEASE the Court found that the ?rst prong of the standard has not been satis?ed. In addition, the Order required the NSA Inspector General, General Counsel, and Signals Intelligence Directorate to periodically review the authorized collection activities. These NSA of?ces were required to submit a report to the Court 60 days after the collection was initiated under the Order that would address the adequacy of management controls and whether U.S. person information was being handled According to several Department and SA of?cials, the effort to implement Jude Howar ?s Janu 10 2007 Order was a massive As a result of the Order, the Department and NSA submitted to the FISA Court for its review the factual basis for each selector supporting the government?s determination that the ?minimization probable cause standard? had been satis?ed. The Department accomplished this pursuant ed by Judge Howard und which the Department ?led foreign selectors everyidays for the duration of the 90-day Order. The probable cause explanation for each foreign selector ?led with the Court typically was described in several sentences. According to Bradbury, he impressed upon the NSA that Judge Howard would review each submission and inquire about how recently the NSA had acquired communications relating to a particular selector. According to Matthew Olsen, the Deputy Assistant Attorney General in the Department?s National Security Division who was responsible for overseeing intelligence matters, Judge Howard did in some cases inquire about the government?s factual basis for believing the minimization probable cause standard has been met.293 Bradbury also said he stressed that the Court would scrutinize the probable cause determinations more rigorously than the agency had been doing itself and that the Court was more likely to approve a selector where the surveillance was current than it would a selector that has ?remained dormant for 293 Olsen was involved in the drafting and presentation to the FISA Court of the content application and the government?s implementation of the related FISA Court Orders. 294 However, Bradbury noted that the FISA Court?s ?tendency to look for recent information? in assess' ?problematic? lCont?d.) APPROVED FOR PUBLIC RELEASE Olsen told us that-foreign selectors ultimately were ?led with the FISA Court under the terms of Judge Howard?s Order. Olsen said that the NSA strived to submit selectors that were deemed high priority, that had a well-documented nexus to?foreign powers, and that had recent communications activity. Attorneys from OIPR, who under the terms of the Order were required to review the justi?cation for each foreign selector that it tasked, worked with the NSA on this large-scale review process. According to Olsen, OIPR attorneys ?double-checked? the probable cause determination for each selector, but did not conduct independent probable cause inquiries. This review identi?ed?selectors that in judgment required additional documentation before they could be submitted to the Court.295 Olsen described the back-and?forth between OIPR and the SA as ?constant,? and said the NSA was receptive to involvement. Olsen stated that the NSA committed signi?cant resources to the transition of foreign selectors. Both Bradbury and Olsen observed that the transition of content collection of foreign selectors to FISA required some adjustment by the NBA in its approach to establishing probable cause. For example, while an NSA analyst might base a probable cause determination to some extent on intuition, similar to a ?cop on the beat,? it was a different proposition when that probable cause determination had to be reviewed by several OIPR attorneys trying to anticipate how the FISA Court might View the judgment. Olsen stated that it was also ?new? for the NSA to document the probable cause to the level OIPR believed the FISA Court would require. According to Bradbury, the effort sought an equilibrium between ?the necessary speed and agility? and the ?multiple layers of probable cause determination.? Bradbury and Olsen both told the OIG that the NSA had concerns about whether the FISA approach to content collection would work and the extent to which a measure of effectiveness would be lost under FISA Court supervision. D. Domestic Selectors Application and In contrast to foreign selectors, Judge Howard advised the Justice Department that requests for surveillance of the international calls of domestic selectors telephone numbers or e-mail addresses reasonably believed to be used by individuals in the United States should be ?led with 295 Olsen told the DIS that he believes the NSA de?tasked some of these foreign selectors. APPROVED FOR PUBLIC RELEASE the Court in a separate application. Judge Howard also advised OIPR of?cials that any such application should take a more traditional approach to FISA, meaning the ?facilities? targeted by the application should be particular telephone numbers and e?mail addresses and that the probable cause determination for tasking a selector would reside with the FISA Court, not with SA of?cials pursuant to minimization procedures. On January 9, 2007, the Department ?led the ?rst domestic selectors application. The application sought two things. First, the application re uested authority to intercept the international communications of hspeci?c domestic selectors.296 Second, the application sought, for purposes of future applications, approval to use a ?streamlined version? of the emergency authorization procedures available under FISA. These emergency procedures authorize the use of electronic surveillance for a period of up to 72 hours without a Court order when the Attorney General reasonably determined that an emergency situation exists. See 50 U.S.C. 1805(1). The procedures required the Attorney General to inform the FISA Court that the surveillance has been initiated and required the Department to ?le with the Court an emergency application to continue the surveillance not more that 72 hours after the surveillance was authorized. The goal of the Department?s proposed streamlined emergency application procedures, referred to in the January 9, 2007, application as a ?Veri?ed Application,? was to ensure that the emergency surveillance process be completed as swiftly as possible for qualifying domestic selectors. The proposal allowed the Veri?ed Application to incorporate by reference the reasons or facts contained in the original domestic selectors application necessary to satisfy some of the statutory requirements under FISA, instead of reestablishing in each application for a new domestic selector that each of the requirements of FISA were met. The only new substantive information contained in a Veri?ed Application would be the identity of the target, if known, the telephone number the target was using or was about to iseI ani the factual basis irobibii i?ie iill'eve the target is and is using or is about to use the identi?ed telephone number. Judge Howard granted the domestic selectors application on January 10, 2007, for a period of 90 days. His Order also approved the 295 Unlike the December 13, 2006 a lication the Jan 3 did not seek authority to target agents 0 7 nor did the application seek authority to conduct content surveillance of elma'ilcommcations. The declaration summarized for each of the domestic selectors, generally in two to three paragraphs, the facts that supported the government's belief that the tele hone number was used or about to be used by a known or unknown agent a! ?Iocated in theUnited States We APPROVED FOR PUBLIC RELEASE streamlined emergency authorization procedures proposed in the application for any additional domestic selectors whose communications the government sought to intercept during the 90?day period for which surveillance was authorized?? NSD Deputy Assistant Attorney General Olsen told the OIG that in comparison with foreign selectors, the Department conducted a more rigorous review of the initial domestic selectors submitted to the FISA Court to ensure that probable cause was met. Olsen said a few domestic selector packages ?on [their] face? lacked suf?cient documentation and that these de?ciencies were apparent to OIPR attorneys reviewing the information because the attorneys were looking at the information for the ?rst time. He said that the NSA responsible for the selectors, in contrast, were very familiar with the numbers and knowledgeable of details about the users that might not have been evident to persons reviewing documentation de novo. According to Olsen, for selector packages that were considered de?cient, the NSA either provided the Justice Department attorneys with additional information or de?tasked the selector.?8 E. Last Stellar Wind Presidential Authorization Expires On December 8, 2006, the President signed what would become the ?nal Presidential Authorization for the Stellar Wind program. The December 8 Authorization was scheduled to expire on February 1, 2007. However, Judge Howard?s January 10, 2007, Orders relating to foreign and domestic selectors completed the transition of Stellar Wind?s 297 On January 22, 2007, the Department ?led, and Judge Howard approved, the ?rst Veri?ed Application with the FISA Court using the streamlined procedures approved in the Order. 293 Olsen and OIPR Deputy Counsel Margaret Skelly-Nolen told the OIG that during the application for and implementation of the domestic selectors Order, it became apparent that there were coordination problems between the FBI and the NSA. They noted that in many instances a domestic selector the SA sought to task was already targeted by an FBI FISA order. According to Skelly-Nolan, in those cases problems can arise in providing accurate, current, and consistent information to the FISA Court about such selectors. She said the practice has been to consult with the FBI assigned to the NSA and to request from them the most current information the FBI has about a particular telephone number or user of that number. The FBI at the NSA have access to FBI databases to search for such information, although the most current information frequently can only be obtained from the operational personnel at FBI Headquarters. As a consequence, according to Skelly-Nolan, the FISA Court has on some limited occasions been provided inconsistent information concerning domestic telephone numbers or the users of those numbers. Olsen told the OIG that the domestic selectors Order has required a higher level of coordination between the FBI and NSA and that the National Security Division has worked to address this issue. APPROVED FOR PUBLIC RELEASE communications and meta data collection activities from Presidential Authorization to FISA authority. Bradbury told the OIG that because it was believed that Judge Howard?s Orders, particularly the foreign selectors Order, provided the NSA suf?cient ?exibility to conduct content collection, it was not necessary to renew the December 8, 2006, Presidential Authorization. Therefore, on February 1, 2007, the Presidential Authorization for the Stellar Wind program of?cially expired.299 F. First Domestic and Foreign Selectors FISA Renewal Applications Judge Howard?s January 10, 2007, Orders were set to expire after 90 days. During the week of March 20, 2007 the government ?led renewal applications to extend the authorities both as to domestic and foreign selectors. These applications were ?led with Judge Roger Vinson, the FISA Court duty judge that week. The domestic selectors application, ?led March 22, 2007 was in all material respects identical to the government?s original application. Judge Vinson granted the application on April 5, 2007.300 The foreign selectors application was ?led on March 20, 2007. The content and construction of the March 20 application was substantially identical to the government?s original application, and advanced the same broad construction of the term ?facilities? and the use of minimization procedures to authorize NSA officials, instead of judges, to make probable cause determinations (subsequently reviewed by the FISA Court) about particular selectors. On March 29, 2007, Judge Vinson orally advised the Department that he could not grant the foreign selectors application. His decision validated some concerns within the Justice Department that Judge Howard?s original 299 On January 17, 2007, Attomey General Gonzales sent a letter to Senators Leahy and Specter, the Chairman and Ranking Member of the Senate Judiciary Committee, informing them of Judge Howard?s Orders. Gonzales?s letter stated that as a result of the January 10, 2007, FISA Court Orders, any electronic surveillance that was occurring under the Terrorist Surveillance Program would now be conducted under FISA, and that ?the President determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires.? 300 As noted previously, the dome tic ctors Order resented ecial coordination issues between the FBI and the NSA, and The Order was renewed for the ?nal time in and has since expired. APPROVED FOR PUBLIC RELEASE Order might not be a sustainable long~term strategy for intercepting the communications of foreign selectors. Judge Vinson?s decision also accelerated the Department?s efforts to obtain legislation amending the FISA statute to authorize the type of surveillance conducted under Stellar Wind and that was approved by Judge Howard. On April 3, 2007, Judge Vinson issued an Order and Memorandum Opinion explaining the reasoning for his conclusion that he could not grant the foreign selectors application. However, Judge Vinson did not deny the government?s application. Instead, he encouraged the Department to ?le a motion with Judge Howard requesting a 60?day extension of the existing January 10, 2007, foreign selectors Order. In explaining why he was encouraging the Department of ?le the motion with Judge Howard, Judge Vinson wrote, I have concluded that an extension for this purpose is appropriate, in View of the following circumstances: that the government has commendably devoted substantial resources to bring the surveillance program, which had been conducted under the President?s assertion of authorities, within the purview of that a judge of this Court previously authorized this surveillance in [the January 10, 2007, foreign selectors Order], on substantially the same terms as the government now proposes; that it would be no Sim 1e matter for the government to terminate surveillance ohphone numbers and e-mail addresses under FISA authority, and to decide whether and how it should continue some or all of the surveillance under authority; and, importantly, that within the allotted time the government may be able to submit an application that would permit me to authorize at least part of the surveillance in a manner consistent with this order and opinion. Judge Vinson wrote that the Department?s foreign selectors renewal application concerns an ?extremely important issue? regarding who may make probable cause ?ndings that determine the individuals and the communications that can be subjected to electronic surveillance under FISA. In Judge Vinson?s view, the question was Whether probable cause determinations are required to be made by the FISA Court through procedures established by statute, or whether the NSA may make such determinations under an alternative mechanism cast as ?minimization procedures.? Judge Vinson concluded, based on past practice under FISA and the congressional intent underlying the statute, that probable cause determinations must be made by the FISA Court. APPROVED FOR PUBLIC RELEASE In explaining his reasoning, Judge Vinson ?rst rejected the Department?s broad construction of the term ?facilities,? concluding that the ?electronic surveillance? under the government?s application the acquisition of the content of communications was directed at particular telephone numb e-majl addresses and not at broad swaths of governmen conten ed. government cited for its broad interpretation of ?facilities,? observing, ?[t]e11ingly, none of the cited cases stand for the proposition on which this application rests that electronic surveillance is not ?directed? at articular phone numbers and e?mail addresses, Judge Vinson wrote that his conclusion was also supported by the government?s and the Court?s past practice, as well as the legislative history of FISA, which, according to Judge Vinson, made clear that ?Congress intended the pre-surveillance ?judicial warrant procedure,? and particularly the judge?s probable cause ?ndings, to provide an ?external check? on executive branch decisions to conduct surveillance.? He wrote that the overnment?s proposal that ?the Court assess ?7 I. make a hi hl a tract and generalized probable cause finding removed from the Court?s pre?surveillance purview the question of WI'Fther the cominunications to be acquired will relate to the targeted foreign powers.301 Judge Vinson rejected the government?s ?minimization probable cause standard,? stating that ?[m]inimization does not provide a substitute for, or a mechanism for overriding, the other requirements of Judge Vinson concluded that government?s proposed minimization procedures, by authorizing the NSA to make probable cause decisions, con?icted with speci?c provisions of FISA that govern electronic surveillance, such the requirement that only the Attorney General can grant emergency approvals to conduct surveillance (followed within 72 hours by an application to the 301 Stated another way, ?[the application] represented that NSA will make the required probable cause ?nding for each such facility before commencing surveillance.? Judge Vision wrote, ?[t]he application seeks, in effect, to delegate to the NSA the Court?s responsibility to make such ?ndings ?based on the totality of circumstances.? Obviously, this would be inconsistent with the statutory requirement and the congressional intent that the Court make such ?ndings prior to issuing the order (emphasis in APPROVED FOR PUBLIC RELEASE FISA Court), and that renewals for surveillance coverage must be based on ?new ?ndings? of probable cause by a judge. Judge Vinson summarized his position: The clear purpose of these statutory provisions is to ensure that, as a general rule, surveillances are supported by judicial determinations of probable cause before they commence; that decisions to initiate surveillance prior to judicial review in emergency circumstances are made at politically accountable levels; that judicial review of such emergency authorizations follows swiftly; and that decisions to continue surveillance receive the same degree of scrutiny as decisions to initiate. The law does not permit me, under the rubric of minimization, to approve or authorize alternative procedures to relieve the government of burdensome safeguards expressly imposed by the statute. Judge Vinson wrote that he was mindful of the government?s argument that the proposed minimization procedures were necessary to provide or enhance the ?speed and ?exibility? with which the NSA responds to threats, and that foreign intelligence information may be lost in the time it takes to obtain Attorney General emergency authorizations. However, in Judge Vinson?s view, requirements re?ected a balance struck by Congress between privacy interests and the need to obtain foreign intelligence information, and until Congress took legislative action on FISA to respond to the government?s concerns, the Court must apply the statute?s procedures.302 He concluded that the government?s application sought to strike a different balance for the surveillance of foreign telephone numbers and e-mail addresses. Vinson rejected this position, stating, ?provided that the surveillance is within FISA at all, the statute applies the same requirements to surveillance of facilities used overseas as it does to surveillance of facilities used in the United States.?303 302 Judge Vinson stated that he recognized that the government maintained the President may have constitutional or statutory authority to conduct the surveillance requested in the renewal application. Judge Vinson stated, ?[nlothing in this order and opinion is intended to address the existence or scope of such authority, or this Court?s jurisdiction over such matters." 303 Judge Vinson wrote in a footnote that the status of the proposed surveillance as being within the scope of FISA was ?assumed, but not decided, for purposes of this order and opinion.? He continued, believe that there are jurisdictional issues regarding the application of FISA to communications that are between or among parties who are all located outside the United States.? Judge Vinson suggested that ?Congress should also consider clarifying or modifying the scape of FISA and of this Court's jurisdiction with regard to such facilities . . . Bradbury told the OIG that Judge Vinson's suggestion was an important spur to Congress?s willingness to consider FISA modernization legislation in (Cont'd.) APPROVED FOR PUBLIC RELEASE Attorney General Gonzales told us that his reaction to Judge Vinson?s decision was one of ?disappointment? and that the decision ?con?rmed our concern about going to the Court].? Gonzales also said he believed the decision was ?troubling for purposes of the national security of our country.? Bradbury told us the government considered several options after Judge Vinson?s ruling, including appealing the decision to the FISA Court of Review. However, he said the decision was made to attempt to work with Judge Vinson to craft a revised application and also separately to renew the Administration?s efforts to obtain legislation to modernize FISA. G. Revised Renewal Application for Foreign Selectors and; Order {ramm? As suggested by Judge Vinson, in April 2007 the Justice Department- obtained from Judge Howard an extension of the existing foreign selectors Order until May 31, 2007, to prepare a revised foreign selectors application. In the interim, the Department ?led two reports with Judge Vinson describing a new approach to foreign selectors that addressed the concerns expressed in his Opinion, and that sought input from the Court about how best to facilitate the su application that would seek authority to direct surveillance a On May 24, 2007, the Department ?led a revised renewal application seeking to renew, with modi?cations, the authorities granted in Judge Howard?s January 10, 2007, Order. However, the application did not include the broad construction of ?facilities? and instead sought authority to conduct electronic 3 illance of conventional facilities telephone numbers and The application also did not include the ?probable cause minimization standard? approved the summer of 2007. In Section IV below, we summarize this legislation, the Protect America Act, and its successor, the FISA Amendments Act of 2008. the May 24, 2007, application, such uses incl sent to and from a tar eted e?mail ?address,? 30" According to The May 24 application was the to use the term ?e-mail to escri the Iacmty at 1c e-mail surveillance would be directed; However, according to the application, the government ?routine re uests, and the Court authorizes, electronic surveillance using [the e-m 7 descriptor to identify this type of facility.? APPROVED FOR PUBLIC RELEASE by Judge Howard that had the effect of shifting from the FISA Court to the NSA the probable cause determinations about particular selectors. However, the targets of the government?s revised application remained selectors (telephone number and e-mail facilities) reasonably believed to be used outside the United States and for which there is robable cause to believe were bein used lication also souht and in the same manner as was approved in Judge Howard?s Order.306 eci?cally, the application requested authority to direct surveillance a categories of foreign selectors: - Foreign telephone number and e-mail selectors presently known to the overnment. This category accounted for a portion of the *foreign selectors already under surveillance pursuant to Judge Howard?s orderem 305 The May 24, 2007, application explicitly stated that the government was not seeking surveillance authority for any new facilities reasonably believed by the NSA to be used by US. persons. The application stated that surveillance of those facilities would be initiated only through emergency authorization provisions and the streamlined FISA applications approved for domestic selectors. 307 The overnment submitted an appendix with the revised renewal application that identi?e_ facilities and contained the factual basis for the belief that eac of the facilities was being used by a person outside the United States and for which there was probable cause to believe were being used or about to be used by a member or agent of one of the targeted foreign powers. The government had provided Judge Vinson these facilities on a rolling basis during May 2007 for his consideration. The NSA discontinued the surveillance of facilities that were targeted under Judge Howard's Order, but that were not included among the facilities submitted to Judge Vinson for a roval. The NSA told the OIG that the decision to discontinue surveillance on these hfacilities largely was a resource decision and that- facilities ?gure was the amount the NSA could timely process for ?ling with the Court. WSW APPROVED FOR PUBLIC RELEASE a Foreign e-mail selectors (not telephone number selectors) presently unknown to the government but that ?refer to? or are ?about? known foreign e-mail selectors. This category of surveillance, which the NSA had been conducting under Judge Howard?s Order, includes situations where an already targeted e-mail facility is mentioned in the body of a message between two third?party, non-targeted facilities.308 WSW) According to the application, thermof surveillance would enable the SA to i luaLC - an .l 1 1y discovered facilities ?with the speed and agility necessary to obtain vital intelligence and to detect and prevent terrorist attacks.? The application stated The collection authorities requested in the renewal application that pertained to currently unknown facilities would, according to the application, address this limitation.309 Judge Vinson granted the government?s revised renewal application on May 31, 2007. His Order authorized, for a period of 90 days, each of the categories of electronic surveillance described above, although the 303 The category presented an issue under FISA in that communications are being acquired because they contain the targeted e-mail selector, and not because there was probable cause to believe the e?mail accounts sending or receiving the communications are used or about to be used by an international terrorist group. In such cases, the surveillance is not ?directed at? the targeted e-mail selector. The argued that such acquisition was still consistent with FISA because, ?at the time of acquisition. the NSA has probable cause to believe that the facilities at which the NSA is directing surveillance are being used by the foreign power target." 309 The government argued that the FISA Court?s authority to authorize subsequent collection against new selectors unknown to the government at the time an application was approved is rooted in section of FISA. That provision imposes Speci?c reporting requirements on the government where the FISA Court approves an electronic surveillance in circumstances where the nature and location of each of the facilities at which surveillance will be directed is unknown at the time of the application. APPROVED FOR PUBLIC RELEASE Order de?ned the precise circumstances under which the NSA could acquire communications falling within the -category of surveillance.310 The also included reporting schedules with respect to the? Wcategories of surveillance, for which the government was required to submit newly discovered selectors to the Court. Judge Vinson initially approved?foreign selectors under the terms of his May 31, 2007, Order (these selectors were submitted with the government?s May 24, 2007, application). Shortly after the Order was issued, the FISA Court decided that the weekly reports ?led by the government notifying the Court of newly discovered selectors, as well as the government?s motions seeking approval to conduct surveillance on additional selectors, could be ?led for review with any member of the Court. As the government received feedback from judges on the ?rst reports and motions that were ?led, it observed that judges were applying a more rigorous standard of review to the factual basis su urveillance for each selector than Judge Vinson applied to the selectors he approved. The government consequently adjusted the amount of factual information it provide ubsequent reports and motions and ultimately added foreign selectors to Judge Vinson?s Order. scrutin pplied by FISA i foreign selectors According to Bradbury, the more rigorous Court judges after Judge Vinson?s initial approv caused the NSA place only a fraction of the foreign selectors under coverage than it wanted to. This concern, combined with the comparatively laborious process for targeting foreign selectors under Judge Vinson?s Order, accelerated the government?s efforts to obtain legislation that would amend FISA to address the government?s surveillance capabilities within the United States directed at persons located outside the United States. The Protect America Act, signed into law on August 5, 2007, accomplished this objective However, his Order authorized the surveillance of any previously non?targeted e-mail facilities that transmitted e-mail messages containing a targeted e-mail account only when the NSA determined, based on the acquired communication and other intelligence or publicly available information, that there was probable cause to believe the e-mail facility was being used, or was about to be used, by one of the targeted foreign powers. Judge Vinson agreed with the govemment?s position that there was probable cause to believe that Internet communications relating to a previously targeted e?mail facility were themselves being sent or received by one of the targeted foreign powers and could be acquired. Judge Vinson called this holding ?novel,? but concluded that the decision was ?consistent with the overall statutory requirements; it requires the government to report and provide appropriate justi?cation to the Court; and it supplies the Government with a necessary degree of agility and ?exibility in tracking the targeted foreign powers.? APPROVED FOR PUBLIC RELEASE WW and effectively superseded Judge Vinson?s foreign selectors Order. The government therefore did not seek to renew the Order when it expired on August 24, 2007. In the next section, we summarize the effect of the Protect America Act and successor legislation, the FISA Amendments Act of 2008. (U) IV. The Protect America Act and the FISA Amendments Act of 2008 (U) In August 2007, the Protect America Act was enacted, amending FISA to address the government?s ability to conduct electronic surveillance in the United States of persons reasonably believed to be located outside the United States. This legislation expired on February 1, 2008, but was extended by Congress to February 16, 2008. In July 2008, the FISA Amendments Act of 2008 was enacted, which, among other things, created a comprehensive process under FISA for content collection directed at foreign targets. These two laws modernized the FISA statute as it applied to the acquisition in the United States of communications of persons reasonably believed to be outside the United States. (U) As discussed in Chapter Three, FISA was enacted in 1978 when most international calls were carried by satellite. The interception of such calls constituted ?electronic surveillance" for purposes of FISA only if the acquisition intentionally targeted a US. person in the United States, or if all participants to the communication were located in the United States. Thus, government surveillance of satellite communications that targeted foreign persons outside the United States generally was not considered electronic surveillance, and the government was not required to obtain a FISA Court order authorizing the surveillance even if one of the parties to the communication was in the United States. However, in the mid?1980s, ?ber optic technology began to replace satellites as the primary means for transmitting international (and domestic) telephone communications. This change brought within definition of ?electronic surveillance? the acquisition of telephone calls to or from a person in the United States if the acquisition occurred in the United States, thereby triggering the requirement that the government obtain FISA Court orders to conduct surveillance that it previously conducted outside of FISA. Under the Stellar Wind ro am, the NSA collected international comunicauonsh by targeting facilities (telephone numbers and e?mail addresses) located outside the United States (foreign APPROVED FOR PUBLIC RELEASE l. .0. selectors).311 As noted in Chapters Three and Four, the Administration contended that FISA, as supplemented by a subsequent legislative enactment (the AUMF), did not preclude the surveillance activities under Stellar Wind, or in the alternative represented an unconstitutional infringement on the President?s Article II authority as Commander in Chief to the extent it con?icted with these collection activities. The Justice Department?s effort to transfer content collection from presidential authority under Stellar Wind to FISA raised the issue of application to the acquisition in the United States of communications to or from targeted foreign selectors. The Protect America Act and the FISA Amendments Act, in different ways, addressed this issue by treating the communications of persons reasonably believed to be located outside the United States differently from communications of persons located in the United States.312 A. The Protect America Act (U) The Protect America Act of 2007, Pub. L. No. 1 10-55, was a temporary measure signed into law on August 5, 2007.313 The Protect America Act?s chief objective was to exclude from the requirements of FISA the interception in the United States of communications of persons located outside the United States, the category of communications referred to above as ?foreign selectors.? (U) The Protect America Act amended FISA so that the interception of foreign selector communications fell outside the statute?s de?nition of ?electronic surveillance.? Under the original de?nition of ?electronic surveillance,? FISA generally applied to any communication to or from a known United States person inside the United States if the communication is acquired by targeting the known United States person.314 FISA also 311 The NSA also targeted under Stellar Wind a much smaller number of facilities located inside the United States (domestic selectors). 312 The two laws did not substantially affect the provisions of FISA relating to pen register and trap and trace surveillance or to the production of ?tangible things.? The government continues to collect bulk e-mail and telephone meta data under the and Section 215 Orders described in Sections I and II of this chapter. 313 The Protect America Act was set to expire 180 days after its enactment, or on February 1, 2008. However, Congress passed and on January 31, 2008, the President signed a bill to extend the Protect America Act for 15 days while further discussions on new legislation occurred. However, no agreement was reached on new legislation and the Act expired on February 16, 2008. (U) 31? The original FISA de?nition of ?electronic surveillance? included: (Cont?d.) APPROVED FOR PUBLIC RELEASE applied to the acquisition of other communications (such as communications acquired by targeting persons outside the United States) if the communication was a ?wire communication? and the acquisition occurred inside the United States. (U) The Protect America Act amended FISA by stating: ?Nothing in the de?nition of electronic surveillance . . . shall be construed to encompass surveillance directed at a person reasonably believed to be located outside the United States.? The effect of this amendment was to exclude from the requirements of FISA any communication acquired by targeting a foreign selector, regardless of where the communication was intercepted or whether the communication traveled by wire. As a result, the Act eliminated the need for Judge Vinson?s May 2007 foreign selectors Order, because the collection of communications targeted under that Order no longer constituted ?electronic surveillance" under FISA and therefore no longer required FISA Court orders?"15 (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy?and a warrant would be required for law enforcement purposes; (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(20(i) of Title 18; (3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; 01? (4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes. 50 U.S.C. 1801(1). (U) 315 APPROVED FOR PUBLIC RELEASE In the place of individualized FISA Court orders, the Protect America Act also inserted several provisions into the FISA statute to govern the acquisition of communications from persons ?reasonably believed to be outside the United States.? These provisions authorized the Attorney General and the Director of National Intelligence to acquire foreign intelligence information concerning such persons for up to one year, provided these of?cials certi?ed that there are reasonable procedures in place for the government to determine that a target is reasonably believed to be outside the United States and that the acquisition of the foreign intelligence therefore is not ?electronic surveillance? under the amended de?nition of the term.315 The targeting procedures accompanying the certi?cation had to be submitted to the FISA Court for approval, based on the clearly erroneous standard, within 120 days of the Protect America Act's enactment. However, the certi?cation was not required to identify speci?c facilities or places at which the acquisition of foreign intelligence information would be directed.317 (U) In addition, the Protect America Act authorized the Attorney General and the Director of National Intelligence to direct a person (telecommunications carriers) to provide the government with ?all information, facilities, and assistance necessary to accomplish the acquisition in such a manner as will protect the secrecy of the acquisition. . . Protect America Act, See. The Protect America Act also authorized the Attorney General and the Director of National The Protect America Act addressed this issue by excluding all surveillance directed at persons reasonably believed to be outside the United States. sweaters? 315 The Attorney General and the Director of National Intelligence also had to certify that the acquisition involves the assistance of a communications service provider; that a. ?signi?cant purpose? of the acquisition to obtain foreign intelligence information is for foreign intelligence purposes; and the minimization procedures to be used with the acquisition activity comport with 50 U.S.C. 1801(h). Protect America Act, See. 2, codi?ed in FISA at 50 U.S.C. (U) 317 The Protect America Act left unchanged the procedures for acquiring foreign intelligence information by targeting foreign powers or agents of foreign power inside the United States, as well as the procedures under Executive Order 12333 Sec. 2.5 to obtain Attorney General approval before acquiring foreign intelligence information against a US. person outside the United States. Thus, FISA orders issued prior to the enactment of the Protect America Act, and FISA orders, including applications for renewals, sought after enactment of the Protect America Act but not pursuant to the Act?s amendments (acquisition of foreign intelligence information from targets outside the United States) were still subject to FISA as it existed prior to the Protect America Act. The Protect America Act also provided, by means of an ?opt-out? clause, that the government did not have to use the new procedures for new applications and could instead ?le applications under the provisions of FISA as it existed before the Protect America Act. See Protect America Act, Sec. (U) APPROVED FOR PUBLIC RELEASE Intelligence to seek the assistance of the FISA Court to compel compliance with such directives, and implemented procedures for the telecommunications carriers to challenge the legality of any such directives.318 (U) The Protect America Act authorized the Attorney General and the Director of National Intelligence to issue orders without individualized FISA Court approval for up to one year targeting persons reasonably believed to be outside the United States. These orders remained in effect beyond the expiration of the Protect America Act on February 16, 2008. (U) On August 10, 2007, the Attorney General and the Director of National Intelligence ?led a certi?cation with the FISA Court, as required under the Protect America Act, relating to surveillance of persons reasonably believed to information concernin The certi?cation included directives for assistance to speci?c telecommunications carriers. WE). ?foreign selectors under Judge Vinson?s Order were ?rolled over? to the new Protect America Act authority. A Deputy Assistant Attorney General in the National Security Division familiar with the transition of Stellar Wind to FISA Court authority told us that the government also began to ?build new selectors? under the Protect America Act and worked toward restoring the universe of foreign selectors that were ?rst authorized for tasking under Judge Howard?s January 2007 Order when content collection under Stellar Wind initially had migrated to FISA Court authority. Although the Department viewed the Protect America Act as an adequate temporary fix to those provisions of FISA seen as outdated because of changes in telecommunications technology, Department of?cials continued to press Congress for more permanent modernization legislation. (U) 313 The Protect America Act also stated that any person providing assistance to the govemment pursuant to a governmental directive would not be subject to any cause of action for providing such assistance. However, the Protect America Act did not grant retroactive legal immunity to any ?person,? a term de?ned in FISA to include ?any group, entity, association, corporation, or foreign power.? 50 U.S.C. 1801(m]. On August 22, 2008, the FISA Court of Review upheld as constitutional the Protect America Act provision authorizing the Director of National Intelligence and the Attorney General to direct a person to assist the government in implementing the Act. See In Re: Directives [redacted text] Pursuant to Section 1053 of the Foreign Intelligence Surveillance Act, No. 08-01. (U) APPROVED FOR PUBLIC RELEASE 46W B. The FISA Amendments Act of 2008 (U) On July 1 1, 2008, the President signed the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 Amendments Act). This legislation, composed of four titles, replaced the Protect America Act with similar but more comprehensive surveillance authority. The provisions of the FISA Amendments Act expire, with limited exceptions, on December 31, 2012. (U) A chief objective of the FISA Amendments Act was to change the rules for intercepting the electronic communications of persons reasonably believed to be outside the United States when the acquisition occurs in the United States. As discussed above, the Protect America Act accomplished this by amending definition of ?electronic surveillance? to exclude this activity from FISA requirements. The FISA Amendments Act took a different approach. Instead of excluding the activity from the statute?s definition of ?electronic surveillance,? the FISA Amendments Act created a new title in FISA to govern how the government may conduct this electronic surveillance. Under this approach, the FISA Amendments Act, unlike the Protect America Act, distinguishes between the targeting of non-US. and US. persons reasonably believed to be outside the United States.319 (U) For non?US. persons, the new title created by the FISA Amendments Act provides for surveillance authority similar to the Protect America Act. Instead of requiring the government to obtain individualized orders from the FISA Court to intercept communications of non-U.S. persons reasonably believed to be outside the United States, the FISA Amendments Act authorized the government to conduct any such interceptions for a period of up to one year provided that it adopts, and the FISA Court approves, general targeting procedures designed to ensure that the new authority is not used 319 The Senate Select Committee on Intelligence (SSCI) prepared a section-by-section analysis of the FISA Amendments Act of 2008 explaining the signi?cance of the FISA Amendment Act?s approach. According to the SSCI report, the goal of the Protect America Act in redefining the term ?electronic surveillance? was to exclude the surveillance of persons outside the United States from the individualized order requirements of FISA. However, a consequence of the term?s rede?nition was to broadly exempt foreign surveillance activities both of non-U.S. and US. persons outside the United States. The FISA Amendments Act of 2008, instead of adopting the Protect America Act?s modi?ed de?nition of ?electronic surveillance,? explicitly stated that the targeting of non?U.S. persons outside the United States shall be conducted under the new FISA procedures, which does not require an application for a FISA order. In this way, the FISA Amendments Act accomplished the same goal as the Protect America Act without exempting the targeting of US. persons outside the United States from individualized order requirements. (U) APPROVED FOR PUBLIC RELEASE to direct surveillance-at persons within the United States or at U.S. persons outside the United States.320 (U) In contrast, to conduct U.S.?based surveillance of U.S. persons reasonably believed to be located outside the United States, the FISA Amendments Act requires the government to obtain individualized FISA Court orders for 90-day periods based on a showing of probable cause to believe that the U.S. person is outside the United States and is a foreign power or an agent, of?cer, or employee of a foreign power. Such surveillance previously was governed by Executive Order 12333, and required only a certi?cation from the Attorney General, not the FISA Court. (U) Compared to Stellar Wind, the FISA Act provides the government broader authority to acquire in the United States, with Court supervision, the communications of non-U.S. persons reasonably believed to be located outside the United States. Under Stellar Wind, the NSA was authorized to collect communications where there was probable cause to believe the communications originated or terminated outside the United States and a party to the communications was al Qaeda or a group af?liated with al Qaeda. Under the FISA Amendments Act, the SA is authorized to collect in the United States any communications of non?U.S. persons reasonably believed to be located outside the United States, provided si ni?cant ur ose of the acquisition pertains to foreign intelligence. 320 Like the Protect America Act, in addition to these targeting procedures the certi?cation the government is required to ?le with the FISA Court must also contain minimization procedures and state that a signi?cant purpose of the acquisition that will be conducted is to obtain foreign intelligence information. However, unlike the Protect America Act the FISA Amendments Act does not limit the FISA Court?s review of the targeting procedures to a ?clearly erroneous? standard. On August 5, 2008, the government submitted to the FISA Court a certi?cation pursuant to the FISA Amendments Act. On September 5, 2008, the Court approved the certi?cation and the use of the targeting and minimization procedures the government submitted. 321 On the other hand, the FISA Amendments Act does not similarly broaden the government?s authority to conduct surveillance of U.S. persons reasonably believed to be located outside the United States. The Presidential Authorizations did not distinguish between U.S. and non-U.S. persons, and the NSA was authorized under Stellar Wind to intercept the communications of U.S. persons (domestic selectors) provided the communications originated or terminated outside the United States. APPROVED FOR PUBLIC RELEASE The NSA undertook measures to identify and correct incidents. under Stellar Wind, and the government described the issue to the FISA Court in the December 2006 application th APPROVED FOR PUBLIC RELEASE V. 01G Analysis (U) As discussed in this chapter, the government?s effort to transition Stellar Wind from presidential authority to FISA, which began in March 2004, eventually resulted in all three baskets of collection being authorized by FISA. While the legal theories supporting this transition were aggressive, we believe that the Department could have and should have pursued transition to FISA as a viable legal alternative earlier than it did, rather than operate aspects of the Stellar Wind program solely under presidential authority for several years. In Chapters Three and Four we discussed John Yoo?s 2001 and 2002 memoranda concerning the legality of Stellar Wind and his contention that FISA represented an unconstitutional infringement on the President?s Commander-in-Chief authority under Article II of the Constitution to conduct electronic surveillance during wartime. We recognize that Yoo?s analysis was to some extent a response to the extraordinary circumstances that confronted the federal government immediately after the September 1 1 terrorist attacks and its effort to take emergency steps to thwart what many of?cials believed was an imminent second wave of attacks. Yet, even if one agrees with Yoo?s Article II analysis and supports the decision to enhance outside the judicial or legislative process the signals intelligence collection capabilities, we believe there are strong countervailing considerations that favored attempting to transition the program to FISA, especially as Stellar Wind became less a temporary response to the September 1 1 attacks and more a permanent surveillance tool. Chief among these considerations was the Stellar Wind program?s substantial effect on privacy interests of U.S. persons. Under Stellar Wind, the government engaged in an unprecedented collection of information concerning U.S. persons. The President authorized the NSA to intercept, without judicial approval or oversight, the content of international communications involving many U.S. persons and the NSA collected large amounts of non-content data about U.S. persons? domestic and international telephone calls and to a lesser extent e-mail communications for possible analysis consistent with the extant Presidential Authorization. We believe the FISA Court, as an Article court and the judicial authority charged by statute to oversee U.S.-based electronic surveillance and other collection activities affecting U.S. persons for foreign intelligence purposes, was the appropriate entity to monitor and approve such broad acquisitions APPROVED FOR PUBLIC RELEASE of U.S.?person information conducted under Stellar Wind.322 Second, as several Justice Department and NSA of?cials commented, the FISA statute offered a ??rmer footing? for the collection activities under Stellar Wind. As discussed in Chapter Three and Four, the aggressive assertion of Article II authority on which Stellar Wind was based largely re?ected the legal reasoning of a single Justice Department attorney working alone, without adequate review or scrutiny of his analysis. As we also concluded, this led to a ?awed legal analysis on which the program rested for several years. This approach also led to a contentious dispute between Department and White House of?cials in 2004 involving renewal of aspects of the program. By contrast, the FISA statute provided an alternative basis for Stellar Wind-like collection activities that we believe should have been considered, and pursued, much earlier by the Administration. In this regard, the White House?s strict control over the Justice Department?s access to the program lessened the opportunity for lawyers with relevant expertise to advise the Administration on the viability of working within the FISA statute to achieve the same operational objectives as the Stellar Wind program. Moreover, as the limited number of Department read-ins persisted, meaningful consideration of FISA as an alternative to presidential authority for the program was limited.323 WSW 3? For instance, under Stellar Wind the meta data querying standards did not include restrictions on acquiring data that may have been based solely on the exercise of First Amendment rights. When these activities were placed under the FISA Court?s supervision, the Court required that this intelligence-gathering activity adhere to the FISA standard that an e-mail address or telephone number cannot be targeted for acquisition based solely on activities protected by the First Amendment. APPROVED FOR PUBLIC RELEASE We also found there were operational bene?ts to transitioning Stellar Wind to FISA. The and Section 215 Orders to collect e-mail and telephone meta data that were eventuall obtained from the FISA Court allowed the government to com e1 the telecommunications carriers. The transition of Stellar Wind to FISA authority, together with the passage of the Protect America Act, allowed the SA to begin the process to close, or ?dc-compartment,? the Stellar Wind program. This change, which was not completed until mid?2008, has allowed agents in FBI field of?ces greater access to information about the telephone numbers and e?mail addresses being provided as leads. As described rinci al complaint of agents who were assignedW and bleads was the lack of detail provided about the nature of the international contacts and the foreign entity allegedly involved with terrorism that was one of the communicants. These details often were not provided because of the highly classi?ed and compartmented nature of the Stellar Wind program. Now that such information is gathered under FISA authority and not compartmented as it was under Stellar Wind, it is classi?ed at a level that allows agents in FBI ?eld of?ces to gain access to additional details upon request.324 We recognize that Stellar Wind?s transition to FISA resulted in the imposition of new responsibilities and conditions on the exercise of these unprecedented collection authorities. In the and Section 215 Orders, the FISA Court imposed signi?cant oversight measures that were not required under Stellar Wind. To be sure, the government, particularly the NSA, must devote substantial resources to ensure compliance with these oversight measures. Yet, we believe that such requirements are appropriate, given the massive amounts of data collected and the potential impact on the privacy interests of US. persons. W) We also recognize that the transition of content collection from presidential authority to statutory authority under FISA resulted in signi?cant diminution in authorized surveillance activity of the content of communications. We described in this chapter how ?rst under Judge Howard?s Order, and then more signi?cantly under Judge Vinson?s revised 32? Chapter Six of this report discusses FBI agents' improved access to - program-derived information under FISA after the Stellar Wind program was closed. APPROVED FOR PUBLIC RELEASE Order, the NSA placed increasingly fewer foreign selectors under FISA covera as compared to Stellar Wind. The SA was tasking #foreign selectors under Stellar WinWe of the ?rst content app cation in December 2006, but placed - foreign selectors under surveillance coverage under Judge Vinson?s May 2007 Order. National Security Division of?cials told us that they successfully added approximatel foreign selectors under the terms of the Court?s Order. However, we believe that such broad surveillance and collection activities conducted in the United States, particularly for a signi?cant period of time, should be conducted pursuant to statute and judicial oversight, even though this resulted in a diminution of foreign selectors due to resource issues. We also believe that placing the activities under Court supervision provides an important measure of accountability for the government?s conduct that is less assured when the activities are both authorized and supervised by the Executive Branch alone.325 In sum, we concluded there were compelling reasons to pursue beginning the process of transitionin the collection activities of Stellar Wind to FISA authority earlier th 2004. These included the program?s large collection of information about US. persons, which warranted judicial oversight; the instability of the legal reasoning on which the program rested for several years; and the substantial restrictions placed on FBI agents? access to and use of program-derived information due to Stellar Wind?s highly classi?ed status. We acknowledge that transitioning Stellar Wind?s collection activities to FISA would have been an enormously complex and time?consuming effort that rested upon novel interpretations and uses of FISA that not all FISA Court judges would authorize. Nevertheless, the events described in this chapter demonstrate that a full transition to FISA authority was achievable and, and in our judgment, should have been pursued earlier. 325 ve 1 on? dec? ion re 'n the forei se ec or content application, was not without bene?t. Judge Vinson?s decision re?ected what some intelligence of?cials considered limitations in the FISA statute as it applied to the acquisition of communications in the United States of persons located outside the United States, especially non-0.8. persons. In this way, transitioning Stellar Wind?s content collection to ISA helped the government make its case to Congress in concrete, non?hypothetical terms for modernization legislation amending the statute. APPROVED FOR PUBLIC RELEASE we The preceding chapters examined the evolution of the Stellar Wind program and its transition from Presidential Authorization to FISA authority. In this chapter, we examine more closely the involvement in Stellar Wind and the impact the program had on FBI counterterrorism efforts. is the codename for the project, classi?ed at the Secret level, that the FBI initiated in September 2002 to disseminate Stellar Wind information to FBI ?eld of?ces in a manner that did not disclose the source of the information or the means by which it was acquired. The FBI originally opened as an administrative ?le to serve as the repository for all communications FBI Headquarters disseminated to FBI field of?ces relating to Stellar Wind information, as well as all communications FBI Headquarters received from ?eld of?ces reporting the results of any investigation conducted in response to the ?tipped? information originating from Stellar Wind. In November 2006, the FBI opened an investigative ?le under the name 325 Section I of his chapter summarizes how the FBI used to disseminate Stellar Wind information to FBI ?eld offices. Section II describes the decision in mid-2003 to make its headquarters-based Communications Analysis Unit (CAU), instead of FBI ?eld of?ces, responsible for issuing National Security Letters (NSL) to obtain subscriber information for telephone numbers (basket 2 of Stellar Wind) disseminated under .327 Section discusses the role the FBI played, beginning in approximately March 2004, in the process to ?scrub? international terrorism FISA applications for Stellar Wind information. Section IV of this chapter examines the impact of the information obtained from Stellar Wind on FBI counterterrorism efforts. It ?rst provides statistics concerning the number of tippers the NSA derived from Stellar Wind information - telephony, e?mail, and content disseminated to FBI 325 As discussed in Chapter Three, was preceded by the? which the FBI created in October 2001 to receive and disseminate Stellar Wind?derived information. 327 The CAU is the successor to the Telephone Analysis Unit (TAU), which the FBI created after the September 11 terrorist attacks to analyze telephone communications. The CAU assumed responsibilities in late 2002. APPROVED FOR PUBLIC RELEASE ?eld of?ces through the- recess. Next, it describes how FBI ?eld of?ces generally investigatedhtippers and the typical results of the investigations. The section then summarizes two statistical surveys of meta data tippers the FBI conducted in 2006 to assess the value of Stellar Wind to FBI operations, and describes observations about the program?s contribution and value provided by FBI of?cials and employees in OIG interviews and contained in documents the OIG obtained during the course of this review. In addition, the section examines ?ve FBI international terrorism investigations commonly cited as examples of Stellar Wind?s contribution to counterterrorism efforts in the United States.323 413W - Lastly, Section of this chapter contains the analysis ol- impact on FBI operations. I. Emacess Th process was managed by a group of FBI employees from CAU, designated as ?Team 10,? who in February 2003 were assigned full-time to the NSA to work on the Stellar Wind program.329 Team 10 was described to us as a ?conduit? and a ?curtain? between Stellar Wind and the FBI, in that Team 10?s chief responsibility was to disseminate Stellar Wind-derived information to FBI ?eld of?ces for investigation without disclosing that the NSA was the source of the information or how the NSA acquired the information?W Team 10 initially was staffed with two FBI special agents (one of whom served as supervisor) and two The CAU subsequently replaced one agent position with a third analyst and later added a fourth analyst. At the NSA, Team 10 was co?located in a large open space with dozens of NSA and other Intelligence Community personnel assigned to the Stellar Wind program. Each team member was provided a computer with 'direct access to NSA information associated with Stellar Wind. The NSA told the OIG that Team 10 members worked at the NSA under the authority of the SA Director and as such were required to adhere to SA minimization rules and attend the same training as NSA employees. Team 10 members also were provided access to Stellar Wind-related systems and 323 As noted above, our report examines the role in the Stellar Wind program and does not review the use of the program by other agencies, such as the CIA. 329 The CAU is organized into ten teams, nine of which are responsible for providing communications analysis support to speci?c ?eld of?ces and FBI Legal Attaches (Legat). According to an FBI organizational chart, Team 10 supports ?Off-site Intelligence Community Special Projects." Team 10 was exclusively responsible for managin APPROVED FOR PUBLIC RELEASE databases, and had access from their comp I 3 ms such the Automated Case Support (ACS) system and The process undeFto disseminate Stellar Wind ormation was similar to process the FBI established under the- described in Chapter Three. In short, the NSA provided Top Secret, compartmented Stellar Wind reports to Team 10, 'ch in turn converted the information into Secret, non-compartmented electronic communications (EC) and disseminated the communications, referred to as ?tippers,? to FBI ?eld of?ces for appropriate action.330 The process was applied, with some differences, to each of Stellar Wind?s three ?baskets? of information. The vast majority of Stellar Wind reports involved the analysis of telephony meta data that is, basic information such as date, time, and duration, about contacts between foreign and domestic telephone numbers for which the NSA determined there was a reasonable articulable suspicion to believe were related to al Qaeda or an af?liated group.331 Each EC included a paragraph that summarized the project and explained that the CAU could not disclose the source of the information contained in the EC, but that the information came from a ?sensitive and highly reliable? source. Each EC also included a ara a advising the field of?ces that the information provided by the source could be used for ?lead purposes only? and could not be ?incorporated into any affidavit, court proceeding, FISA application or APPROVED FOR PUBLIC RELEASE unclassi?ed investigative In addition, each EC assigned a ?lead? that instructed the ?eld of?ce what investigative action, if an should en regarding the information provided. We further describeh Winds and FBI ?eld of?ces? handling of them in Section IV of this chapter. Before Team 10 disseminated Stellar Wind?derived information to ?eld of?ces, an analyst queried FBI databases for relevant information about the telephone number, e?mail address, or individual (in the case of a content report) identi?ed in the Stellar Wind report. These queries often identi?ed, for example, subscriber information the FBI previously obtained for Stellar Wind telephone numbers as part of a prior FBI investigation, or active counterterrorism investigations in which the subscriber to a Stellar Wind?targeted number was the subject or in which the number, and sometimes the subscriber, were referenced. Team 10 also checked public and commercial databases, most commonly in connection with e-mail addresses. These checks sometimes identi?ed the speci?c and an domain names the user of an e-mail address had re 'stered. Any such information Team 10 located about a Stellar Wind-derived telephone number or e-mail address was included in the? EC as a Comment? or an ?Analyst Comment? to differentiate the FBI information from the information provided by the Stellar Wind source.332 Over time, Team 10 began to do more than receive and disseminate program?derived information. For example, Team 10 occasionally submitted telephone numbers to the NSA for possible querying against the database containing the bulk telephony meta data collected under Stellar Wind.333 332 In this respect, Team 10 handled Stellar Wind content reports differently from meta data reports. Team 10 typically did not perform additional analytical work on the information provided in Stellar Wind content reports other than to identify any FBI cases to which the information was relevant. For example, a content report might summarize intercepted communications indicating that an acquaintance of the subject of an FBI investigation is traveling to or from the United States. The connection between this Stellar Wind information and the relevant FBI investigation would be reported in the -EC- 333 As described in previous chapters, the purpose of the bulk collection of meta data under Stellar Wind was to allow the SA to use analytical tools such as contact chaining to identify known and unknown individuals associated with al Qaeda or an al Qaeda af?liate. The technique involves querying the telephony or e-mail database with a number or address for which an analyst had a ?reasonable articulable suspicion? to believe was used by persons involved in al Qaeda or an al Qaeda af?liate, and then examining any contacts with that number or address- WW APPROVED FOR PUBLIC RELEASE The telephone numbers Team 10 provided typically were obtained from the domestic and international counterterrorism operations, such as a number identi?ed during a phone conversation monitored under FISA or a number found in the address book of a subject arrested abroad. The NSA conducted independent analysis to determine whether telephone numbers (or e-mail addresses) provided by Team 10 met the querying standard established by the Presidential Authorizations that governed Stellar Wind (that is, a reasonable articulable suspicion to believe that communications from the telephone number relate to al Qaeda or an af?liated group).334 Team 10 also contributed to the drafting process for Stellar Wind reports. Telephone numbers and e-mail addresses identi?ed through queries of the databases that contained the bulk telephony and e-mail meta data were reviewed by NSA to determine whether the contacts should be reported to the FBI in a Stellar Wind report. Team 10 participated in this process by reviewing draft reports and providing any information from FBI databases that might be relevant to this We were told that one of the benefits of Team 10?s presence at the NSA and its involvement in the Stellar Wind report drafting process was an improvement in the quality of the information disseminated to FBI ?eld of?ces. For example, the FBI Supervisory Special Agent (SSA) who supervised Team 10 from April 2005 to July 2006 told the OIG that he tried to reduce the reporting of telephone numbers that were several hops removed from the telephone number linked to al Qaeda or an af?liated terrorist group. He said that he wanted Team 10 to disseminate ?solid numbers with value,? not numbers with questionable value such as ?high volume numbers? ublic telephones, for example) and? The FBI SSA said that the NSA expressed the concern 334 Team 10 submitted such telephone numbers to the NSA electronically through ?Requests for Information,? or RFls, which is the formal process by which the FBI and other agencies provide leads and request information from the Stellar Wind database. FBI records indicate that from April 2002 to January 2006 the FBI directed? to NSA for possible analysis under Stellar Wind. The records do not indicate the disposition of each RFI. 335 The SA developed formal ?checklists? to guide the Stellar Wind report drafting process for telephony and e-mail tippers. The checklists include over 30 steps that SA were required to complete, and a supervisor had to approve, before a report could be distributed to the FBI or any other Stellar Wind customers (the CIA and National Counterterrorism Center). A signi?cant feature of the checklist from the perspective was the requirement that NSA check any telephone numbers and e-mail addresses in a draft report with the FBI and ?make best effort to include FBI . . . data in [the] tipper.? APPROVED FOR PUBLIC RELEASE that it could not foresee whether any particular contact, although remote, might prevent the next terrorist attack, and did not want to ?nd itself in the position of defending its decision not to pass that number to the FBI. However, he said the SA took several ste to improve the quality of information such as for the domestic contacts that were reported and including analytical judgments about the contacts.335 As discussed in Chapter Five, the government transitioned Stellar Wind?s bulk e-mail meta data collection (basket 3) to FISA authority in July 2004 with the Pen Register/ Trap and Trace Order, bulk telephony meta data collection (basket 2) in May 2006 with the Section 215 Business Records Order, and content collection (basket 1) in January 2007 when the FISA Court granted the government?s domestic and foreign selectors applications. However, after the transition was completed the NSA continued to produce reports within the Stellar Wind compartment to the FBI and other program customers, even though the information contained in the reports was derived from the FISA?authorized collection activities. 0 entl the FBI continued to disseminate the information under thej? process. The current Team 10 supervisor told us that this ecision, reached after consultation with the Of?ce of the General Counsel (OGC), was made to adhere to the FISA Court?s continuing requirement that international terrorism FISA applications be scrubbed for Stellar Wind information (the procedure for which is described in Section of this chapter). The NSA received permission to begin the process to close, or ?dc?compartment,? the Stellar Wind program after the Protect America Act was passed in August 2007. In mid-2008, the NSA officially closed the program and discontinued issuing ?Stellar Win ort . In ovember 2008, the FBI initiated a new investigative to disseminate the FISA-derived information.337 The Team 10 supervisor 335 The NSA told us that one of the dif?culties it faced with the Stellar Wind program was that the NSA was serving two customers - the FBI and the CIA - but had just one set of reporting guidelines. This was so because the NSA traditionall does not rovide sin le-a enc re ortin exce in nan-owl de?ned circumstances. BI memorandum explaining the predication for openin the investi ation is on nk APPROVED FOR PUBLIC RELEASE the told us tha semination process and the NSA underw is similar to what occurred under However, one notable difference is that the PISA?derived reports, while classi?ed at the Top Secret/ Sensitive Compartmented Information (TS SCI) level, are not subject to the highly restrictive Stellar Wind compartment desi ation, which is si ificant from an Operational standpoint. ECs, like?ECs, can only include information classified Secret or lower because the primary computer network for disseminating mmunications cannot be used for Top Secret information. Unlike under?agents in ?eld of?ces can now request access to additional information about leads because agents have the appropriate clearances. As discussed in Chapter Three and addressed below, the chief criticism 0 leads was the lack of detailed information that could be provided to ?eld agents about tippers because of the highly compartmented nature of Stellar Wind. WW II. Decision to Issue National Security Letters 12:25! ?to Obtain Telephone Subscriber Information From August 2003 to November 2006, as part of the? process the Communications Analysis Unit (CAU) assumed responsibility from the ?eld of?ces for re uestin National Security Letters (N SL) to obtain subscriber information fora telephone number tippers.333 The NSLs were authorized by the OGC and issued pursuant to the -project. As discussed below, however, thi ractice was contrary to applicable FBI investigative guidelines because was opened as a non-investigative ?le and therefore under FBI policy should not have been used as the basis for issuing NSLs. The FBI uses SLs to obtain information from third parties such as telephone companies, ?nancial institutions, Internet service providers, and consumer credit agencies. NSLs, authorized by ?ve specific provisions contained in four federal statutes, direct third parties to provide customer account information and transactional records such as telephone toll billing -. beassociatedwit_ and- 338 Field ofei rle for issuing NSLs in connection with e-mail address tippers, which was likely attributable to the comparatively low volume of e-mail tippers and the ability of ?eld of?ces to handle them expeditiously. APPROVED FOR PUBLIC RELEASE records.339 The OIG issued two reviews in 2007 and 2008 examining the use of (U) Justice Department investigative guidelines issued by the Attorney General govern the circumstances under which the FBI may use NSLs. The Attorney General guidelines in effect during the Stellar Wind program authorized the FBI to issue SLs relevant to and in the course of an authorized national security investigation.?1 Further, FBI internal policy distinguishes between ?investigative ?les? and non-investigative ?administrative ?les? (commonly referred to as ?control This distinction is not a mere technicality. Investigative ?les, in the national security context, are opened based on evidence that a person, group, or organization is involved in international terrorism. From October 2003 to September 2008, the Attorney General Guidelines required the FBI to provide summary reports to the Justice Department at the end of each year 339 The four federal statutes are the Right to Financial Privacy Act, 12 U.S.C. 3401?3422; the Electronic Communications Privacy Act (ECPA), 18 U.S.C. 2709; the Fair Credit Reporting Act, 15 U.S.C. 1681 et seq.; and the National Security Act, 50 U.S.C. 436(a)(1) (2000). NSLs issued undo-relied on the ECPA statute, which provides that the FBI may obtain subscriber information from a communications service provider if the FBI certi?es that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the ?rst amendment to the Constitution of the United States. 18 U.S.C. 2709(b)(2) (2000 85 Supp. IV 2005). The statute also permits access to ?toll billing records? or ?electronic communication transactional records,? 18 U.S.C. 2709(a), but requires a warrant for access to the content of telephone communications. See 18 U.S.C. 251 1 (Wiretap Act) and 3121 (Pen Register Act); see also 18 U.S.C. 2702(b)(8). (U) - 340 The ?rst report on NSLs, issued in March 2007, was entitled, A Review of the Federal Bureau of Investigation?s Use of National Security Letters. The second report, issued in March 2008, was entitled, A Review of the Use of National Security Letters: Assessment of Corrective Actions and Examination Usage in 2006. (U) 341 From March 8, 1999, through October 3 1, 2003, national security investigations were governed by the Attorney General?s Guidelines for FBI Foreign Intelligence Collection and Foreign Counterintelligence Investigations (FCI Guidelines). The FCI Guidelines were replaced, effective October 31, 2003, with the Attorney General?s Guidelines for FBI National Security Investigations and Foreign Intelligence Collection (NSI Guidelines). (U) ?inquiry,? under the FCI guidelines) requires only a showing of of such involvement. See NSI Guidelines, Section ILC. (October 31, 2003); FCI Guidelines, Section (March 8, 1999). APPROVED FOR PUBLIC RELEASE a full national security investigation continues. These requirements helped ensure that there was suf?cient, documented predication for investigative activities FBI agents sought to conduct, such as requesting NSLs. 437171?1513)- Control ?les, in contrast, are ?separate ?les established for the purpose of administering speci?c phases of an investigative matter or program.? The ?les do not require any predication and remain open indefinitely Without any reporting requirements for national security investigati ple, the September 2002 EC requesting that a control ?le be opened for Stellar Wind information stated that ?a dedicated control file for this project will better serve the speci?c needs of the special project and will add an additional layer of security for the source.? The ?le has remained open since September 2002 without any of?cial documentation of need or (As discussed below, in - - I I the FBI opened anW investigative file; however, control file was not closed at that time.) Intelli ence Pro am NFIP Manual states 342 Thus, in accordance with the NFIP Manual, it was improper for the FBI to issue NSLs from control ?les during the Stellar Wind program. The March 2007 NSL report identi?ed the project as one of two circumstances where the FBI was using control ?les rather than investigative ?les to issue NSLs. The OIG report concluded that this use was contrary to FBI policy. However, our report also fo CAU of?cials involved in the decision to issue NSLs from the control file conclud 'th that the FBI had suf?cient pre 1cation either to connect the NSLs with existing preliminary or full investigations of al Qaeda and af?liated groups or to open new preliminary or full investigations in compliance with Justice Department investigative guidelines. APPROVED FOR PUBLIC RELEASE As part of our review of the participation in Wwe sought additional explanation for the use of NSLs under We were told the purpose of having the CAU instead of the ?eld of?ces obtain approval for the issuance of such NSLs was to make the telephony tippers more ?actionable? by ensuring that field of?ces at a minimum knew the subsc rs. As described in Cha ter Three, the members of the (the predecessor to had received complaints om agents in FBI ?eld offices that leads lacked direction about how to make investigative use of the telephone numbers and did not provide suf?cient information to open national security investi ations. This was problematic bec disseminated under the and for a time under instructed ?eld of?ces to obtain subscriber information for 'pped elephone numbers. Thus, if agents could not locate the information in FBI or commercial databases, they faced a dilemma about how to proceed in the absence of what they viewed as suf?cient predication. The ?rst Unit Chief (who served in an Acting capacity) discussed the roblem in an EC distributed in January 2003 that addressed aim-ea. The EC stated, De endin on the nature of the information provided [in an lead], ?eld of?ces may determine this intelligence C0111C1 be used to predicate either a criminal investigation or an intelli ence investigation of someone in their territory. Some of megleads may contain a request for a ?eld of?ce to con?rm a subscriber in their territory, if possible, in addition to providing intelligence. The identi?cation of some subscribers might actually require a National Se (N SL) or a Grand Jury subpoena; however, theWcontrol ?le would not be the appropriate legal authority for these requests. 43%? The Acting Unit Chief?s supervision of the CAU ended in February 2003. In March 2003, another FBI Supervisory Special Agent (SSA) was appointed as the ?rst permanent Unit Chief. He told us that when he joined the CAU he was aware that ?eld of?ces sometimes did not obtain subscriber information on tippers because some agents did not believe ECS provided suf?cient information to open a national security investigation. The Unit Chief disagreed, based in part on his insider knowledge about how Stellar Wind operated. He said that he believed the APPROVED FOR PUBLIC RELEASE tippers contained suf?cient information to open preliminary investigations and issue The Unit Chief Wanted field of?ces. at a to know the identity of subscribers of tipped telephone numbers. He also said it was important to ascertain the correct identities of the subscribers at the time the tipped were placed. The Unit Chief stated that if the ?eld of?ce did not issue an NSL for subscriber information or if the ?eld of?ce relied only on publicly available information, the. passage of time could Cause the user of the phone to be misidenti?ed. In addition, the Unit-Chief Said that even if a tipper did n0tre_sult in any investigative value at the time of the tip, it nevertheless was important to identify 'the- subscriber in the event the tipper became relevant in the future or to another investigation. For all of these reasons, the Unit Chief said he took steps to make the CAU, instead of the FBI field. of?ces, responsible for issuing NSLs for telephone number tippers under the Stellar Wind program.344 In approximately Jul 003 a CAU analyst was read into the Stellar Wind program to The analyst-told us- she questiO'ned the Unit Chief and the Team 10 supervisor about whether it was. permissible to issue outof a control ?le. The Unit his to that he was not awareat this tiniethat' a control ?le such as . could not be Used-to issue The- analyst volunteered to approachFBI OGC and met with Marion ?Spike? Bowman of the National Security Law Unit to discuss this concern. She-said she told Bowman that the CAU wanted to know if it could issue NSLs under in View of its status as a control ?le. She said she told Bowman that the NSLs would seek subscriber information only and that ?eld of?ces would be responsible for seeking related toll billing recOrds if warranted by additional investigation. I ACCording to the anal st Bowman said that it would be permissible to issue NSLs out cf the* ?le as long as only subscriber information was songht. The analyst said she could not recall whether Bowman affirmatively stated that issuing NSLs from a control ?le" would be 343 On January 16, 2003, 2 months before the FBI SSA was appointed Unit Chief of the CAU, Attorney General Ashcroft authorized the FBI to issue NSLs during preliminary" investigations. Prior to this time, the F01 guidelines authorized the FBI to issue NSLs only as part of a ?full 3?44 The Unit Chief told us that he did not believe it was critical at the preliminary stage to also obtain telephone subscribers? calling records, or ?tollrecords,? identifying all outgoing and incoming calls. APPROVED FOR PUBLIC RELEASE permissible or whether he merely agreed that it would be permissible under the conditions the analyst presented.345 Shortly after the meeting, the. CAU implemented procedures for r'uesn; 'hat OGC isSue SLs to obtain subseriber information for each . telephone number tipper disseminated to ?eld offices that the FBI was not already aware of or for which it did not have subscriber info er these procedures, the CAU analyst received a copy of eacmEC with telephone number tippers as they were-issued by Team 10 and drafted a separate approval EC to the NSLB that repeated this information and requested that the NSLB issue NSLs for the numbers listed? NSLB attorney's were responsible for determining Whether the NSL requests were"?relevant to an authorized investigation,? as required by statute. If the attorneys determined that they Were, were drafted and signed by the Deputy General Counsel for NSLB and forwarded to the CAU for serviCe on the appropriate communications service providers. The providers returned the responsive records to the. CAU, which in turn disseminated the information to the appropriate FBI ?eld offiCes. From Au st 2003 to November 2006, the CAU issued over 500 NSLs mdert We interviewed FBI Be 11 Ge ral Counsel Julie Thomas about NSL issuance practices unde? Thomas was read into Stellar Wind shortly after joining the October 2004. She was responsible for reviewing and authorizing . requested by the CAU. Thomas . the operational reasons the CAU began - but stated that it Was not until the OIG was it's ?rst review Of the use of NSLs in. 2006 that she learned was a control ?le-and the signi?cance of this status as it related to. issuing" NSLs. Thomas said that the requests to NSLB to authorize NSLs under always identi?ed the Speci?c file number associated with the project and indicated that the CAU had initiated a preliminary inquiry in connection with the NSL request. Thus, in Thomas?s View, the SL being requested was ?relevant to? an authorized. inveStigation, as. 3?5 FBI General Counsel Valerie Caproni told the OIG that she believes Bowman based his guidance to the CAU on the understanding that the SA, by reperting a tipper to the FBI, already had established a reasonable artic'ulable suspicion that the foreign and of the contact was related to al Qaeda or an af?liated group. Caproni said that in view of the hundreds of al Qaeda investigations iv conduCting, Bowman likely concluded it was permissible to issue NSL's under for the subscriber information of tippers even if at the time there was not a 'speCific investigation to which each SL could be connected. The Team 10 so ervisor at this time t? l'd theIG that he recalled the decision to issue NSLs from was based on -- . close relationship to the ongoing investigations of 'al Qaeda and af?liated go. required by statute and Justice Department investigative guidelines.?6 However, Thomas said she did not believe the were improper even though they were issued from a contrm?mmas stated that the NSLs in fact were relevant to authorized international terrorism investigations in that the FBI was conducting hundreds of investigations of al Qaeda and its af?liates at the Me the SLs issued. Thomas told the OIG that notwithstanding this position, in November 2006 the FBI converted ?to an ?umbrella investigative ?le? to re?ect the program?s to international terrorism investigations. The OIG reviewed the communication from the CAU Opening this investigative ?le. It stated that a member of the Intelligence Community [the reported to the FBI that al Qaeda members and associates are using teleCommunications systems to facilitate their terrorist activities, that the FBI has independently'determmed that this is occurring, and that ?inasmuch. that Al?Qa?ida is a multi-faceted and international terrorism organization, the FBI has determined it is appropriate to open a full ?eld investigative The communication stated that the CAU was using information obtained from the member of the US. Intelligence Comrm'inity to issue NSLs and that'the results are disseminated to the- appropriate FBI field of?ces. The communication also advised that all investigative leads associated with the mVestigation Would be titled to protect-the source of the information and the methods usedmt3m_? obtain the information. - .rrently is taking a similar approach to NSLs under the . . . A aid of?ce (instead of the CAU) is authorized to issue an NSL underthe investigative. ?le, even if the ?eld of?ce does not open its own investigatiOn and the tipped domestic telephone number or e?mail address is not relevant to another'open investigation. However, NSLs issued under? can request subscriber information onl and may not request transactional records, as was done Under? assessm? The decision to restrict_ SLs in this way was not required by law, but was an operational decision. As discussed below, FBI 345' The-?le number isThomas told us that she did not-realize that the thC? dosignation stood for "Control File.? In addition, in the approval 1303 reviewed by the OIG that sought the issuance of NSLs, the CAU stated, among other things, that the?source? reported telephonic contact between possible al Qaeda or other international. terrorism entities and numbers in the United States and that ?a preliminary CAU inquiry Was conducted for the US telephone numbers reported by this . source.? APPROVED FOR PUBLIC RELEASE field of?ces addressed tippers by conducting ?threat assessments? to determine whether the tipper had a nexus to terrorism and warranted the ?eld of?ce initiating a preliminary or full investigation. The subscriber information for. a tipper is suf?cient for purposes of completing a threat-assessment. The same is true for tippers, and the current Team 10 supervisor told usthat it would not be a ?good business? practice to collect transactional records on a US. person unless a threat assessment justi?ed the ?eld offiCe initiating its own prelimina'ijr or full-investigation of the We believe the FBI should have opened an_ investigative- ?le in July 2003 and used it to issue SLs related to Stellar Wind information. The Justice Department investigative guidelines in effect at that time authorized the FBI to open full investigations of groups for which there. were speci?c and articulable fade to believe were involved in international terrorism, such as al Qaeda. However; the. FBI decided to issue Stellar Wind NSLs from-an eXisting contr?dl'file, which was contrary to FBI internal policy. We didnot ?nd evidence that officials from the CAU and involved in the decision to uSe an existing control ?le to iss?ue NSLs related to Stellar Wind informationdeliberately tried to circumvent FBI guidelines. The July 2003- rationale for issuing the SLs out of the centrol file ?_the close I relationship between the StellarWind program andthe ongoing investigations of al Qaeda and af?liated groups essentially was the reasoning used in November 2006 he investigative?le and in November 2008 to open the investigative 116'. As We-fotind in. our March 2007 report concerning the use of NSLs, and OGC of?cials involved in the decisidn to iSSue from theh 'th that the FBI had suf?cient predication either to connect the - . 3' NSLs with existing preliminary or full investigatiOns of al Qa aniliated groups or to open new preliminary or full investigations in compliance with Justice Department investigative guidelines. l?Ievertheless-1 the decision violated FBI internal policy.- control ?le conclude In. I I and Scrubbing Process warm?)? As discussed in Chapter Three, the Department implemented a process imposed by the FISA Court to ?Scrub? FISA applications to account for Stellar Wind?derived information. The objectives of the initial scrubbing process were to determine whether any NSA information contained in international terrorism FISA applications was derived from Stellar Wind and whether any Of the facilities (telephone numbers or e?mail addresses) targeted by international terrorism FISA applications were also targeted for APPROVED FOR PUBLIC RELEASE Stellar Wind collection (cominonly referred to as dual coverage). The scrubbing process was coordinated by the Justice Department and NBA, beginning in February 2002 after Judge Lamberth was read into Stellar- Wind. In May 2002, Judge Kollar?Kotelly succeeded Judge Lamberth as Presiding Judge of the FISA Court and continued the scrubbing procedures. However, whereas Judge Lamberth required only that he be- noti?ed of applications that contained- Stellar Wind information, Judge Kollar?Kotelly required that such informjetibh be removed. As described in Chapter Four, on March 14, 2004, OIPR Counsel Baker briefed Judge Kollar-Kotelly about the-President?s decision to sign the- March 11, 2004, Presidential Authorization Without the Justice Department?s certi?cation as to the Authorization?s form and legality, and about subsequent changes the Authorization made'to the? Stellar Wind program?new According to a handWritten letter Judge Kollar-Kotelly drafted to Baker followin this meetin Baker had informed her that the Stellar-Wind ro mirth The letter 8130 stated that Baker" ?these changes the Deputy Attorney General agreed to certify the program as to form and legality, and that OLC had prepared a new legal memorandum regarding the legality of Stellar Wind to replace the November-200 1 memorandum authored by Yoo. W) Judge Kollar?Kotelly?s letter marked the ?rst time her expectations concerning. the Department?s use of Stellar Wind information in FISA applications was cemmunicated in writing to OIPR. Judge Kollar-Kotelly wrote, Although the Court has every con?dence in the oral representations of Jim Baker [and] does not have any reason. to question his honesty or credibility with the F130 or this judge, I am requesting that representations, previously done orally, now be put in writing that relate to [Stellar Wind] and FISA applications so that there are no? misunderstandings. I want to emphasize my position which has been consistent since I came on the F180 in May 2002, the [Stellar Wind] program and FISA applications are to be kept separate, and no APPROVED FOR PUBLIC RELEASE direct or indirect, derived or obtained from [Stellar Wind] should be included in FISA applications. Only in this way can the integrity of the process and intelligence collected thrOugh FISA applications be maintained. Judge Kollar-Kot?elly also wrote that she would not sign any FISA applications that contained substantive information from Stellar Wind-generated tips or any applications where the Stellar Wind tip was the sole" or principal factor for? an agency initiating the underlying investigation, ?even if the investigation Was conducted independently of the tip from [Stellar Baker told us that this letter was Judge Kollar?Kotelly?s preliminary response to the changes in the Stellar Wind program. Through subsequent discussions between Judge Kollar?Kotelly and Baker, and between Baker and other Department and'FBI of?cials, a more ?exible arrangement was reached on sorubbing that addressed Judge Kollar-Kotelly?s concerns without imposing an absolute prohibition on-including certain Stellar Wind?derived information in FISA applications?? In short, the scrubbing procedures implemented in March 2004, and that continue to the present day, substantially expanded the procedures OIPR originally developed in February 2002.343 In addition'to determining whether any SA information contained in internatidnal terrorism FISA applications was derived from Stellar Wind and whether there was any dual coverage, Judge Kollar?Kotelly required the FBI to determine whether any facility (telephone number or e?mail address) that appeared in a FISA application also appeared in a Stellar Wind report and, if so, whether the FBI had de'velbped, independent of StellarWind- an investigative interest in the facility before it was the subject of an tipper.349 This third 34" FBI OGC said that. it was not until these discussions that the FBI was aware of the scrubbing procedures OIPR had implemented in approximately February 2002 after Judge Lamberth'was read into the Stellar Wind program. 343' The scrubbing procedures described here apply both to NBA information derived from the Stellar Wind program and to information derived from the FISA Court?s and Section 215 bulk meta data orders. Until mid?2008 when the Stellar Wind program of?cially was closed, leads the NSA developed from the FISA?authorized bulk meta data collections were disseminated. undei- the Stellar Wind compartment. 349 As discussed in Chapter Three, Baker did not believe in May 2002, when he first discussed the subject with Judge Kollar4Kotelly, that such a scrub was possible. Baker told us that by March 2004 he better understood the and process for disseminating Stellar Wind information and the agencies? ability to tratk program~derived tips in a timer manner. APPROVED FOR PUBLIC RELEASE scrub is coordinated among OIPR, the National Security Law Branch and Team 10. The scrub requires NSLB to compile a list of all ?facilities? telephone numbers and e-mail addresses - that appeared in any draft international terrorism FISA applications.350 This list is compiled as FISA packages become ready for ?ling with the Court and is provided to an attorney in NSLB read into the Stellar Wind program. The attorney in turn forwards the facilities list- to Team 10 at the. NSA, Team 10 checks each facility against the Stellar Wind reports database to determine "whether a listed facility is contained in any Stellar Wind reports and, if so, Whether the facility appeared in the tearline portion of a report that wasfurther disseminated to FBI ?eld of?ces. If both inquiries are positive, Team 10 notes the" date of the relevant Stellar Wind report and Searches the FBI ?3 Automated Case Support System (A08) to determine. whether the facility appears and, if so, the date the faCility came to the attention. Team 10 reports the results of these checks to the NSLB attorney for review. attorney takes one of two-steps atthis stage. If Team 10?s checks are negative? meaning none of the facilities are centained in a Stellar Wind report or Contained in information below the tearline of a Stellar Wind report the NSLB scrub attorney notifies the OIPR attorney and FBI case agent that the FISA application can be cleared for presentation to the FISA Court and that the application can proceed to ?nal processing. If both checks on a facility are positive, the NSLB attorney will try to determine if there is a basis for theCourt to allow the information in the application based on the theories, discussed in further detail below, that the FBI had an independentinvestigative interest in or W0uld have inevitably discovered the facility in question. To determine this?, the SLB attorney researches FBI databases, analyzes records, and attempts to craft an argument under one of these theories, The NSLB attorney then provides this informationto OIPR for presentation the Court. If the NSLB attorney cannot ?nd a basis for including the information under either of the theo?es, and the facility is not essential to the showing of probable cause for the requested FISA coverage, the facility is excised from the FISA application, and processing continues. If the information is important to the probable cause showing, the SLB attorney discusses with OIPR whether to make the argument to the appropriate FISA Conrt judge (initially APPROVED FOR PUBLIC ndge Kollaerotelly and-now, the judge assigned to case) that the facility nevertheless can remain in the application. AcCording to the Deputy General Counsel for?. NSLB, the argument to keep such. information in an application is based on ?standard Fourth Amendment [exclusionary rule] analysis.? The rule? generally holds that where the government obtains evidence in violation of the Fourth Amendment, the court Will suppress, or exclude; the evidence from the prosecutor?s caSewinwchief in a criminal trial. Under the ?fruit of the poisonous tree? doctrine, a corollary to the exclusionary rule, any evidence obtained directly or derivativer from the government?s conduct is also excluded. However, there are several exceptions to the-exclusionary rule, two of which were relevant to scrubbing: independent source and inevitable discovery. The independent source: exception holds that the. exclusionary rule does not bar the use of evidence obtained in violation of the Fourth Amendment if there is also an independent, legal sourcefor the eiz/idence..351 The inevitablediscoi'rery exception applies when evidence? obtained in violation of the: FoUrth Amendment would have been obtained independently had the illegal. search net occurred, which the government must pro'Ve by a preponderance of the evidence.352 (U) Thus, in the Scrubbing context, the issrie is whether the Stellar Wind information contained in a FISA application should not be excluded, either because the FBI had an inVestigatiye basis independent of Stellar Wind for including the informationlin the application or because the FBI inevitably would: have discovered the information in the absence of Stellar Wind. More speci?cally, under the independent investigative bacis exception, if Team 10?s search of ACS shows that a facility came to the attention before the facility appeared in a Stellar Wind report, thiefact' establishes that the FBI has an'independent, non-Stellar Wind factual basis to include the facility in the application.353 SLB Deputy General Counsel. Thomas told ?us that in her experience the FBI already is aWare of the facility meaning it appears in ACS or other FBI databases in nearly every instance that a facility contained in a PISA application also appears in a Stellar Wind report. 351 See Segura' v. United States, 468 796, 805 (1984). (U) 359 See Nix Williams, 467 (LS. 431, 443 (1984). (U) 353 For example, in one. case the NSLB attorney?s review of the underlying investigative file showed that the FBI had obtained the teiephone number at issue in response to an NSL Letter. Because the NSL was dated earlier than thenStellar Wind report that also contained the telephone number, the FBI had an independent investigative basis for including the number in the FISA application. I APPROVED FOR PUBLIC RELEASE - l- The inevitable discovery exception in the scrubbing Context applies when Team 10?s check of ACS indicates the FBI was not aware of the facili?q before the date cf the Stellar Wind report containing the facility; Under this approach, the SLB attorney attempts to demonstrate to OIPR that normal investigative steps in the underlying investigation inevitably would have identified the facility in question. The scrubbing attorney analyzes such case evidence as close associates and other relationships of the subjects of the investigation that could logically lead investigators through NSLs, for example to the facility contained in the Stellar Wind report?? Until January 2006, when the full FISA Court was. read into Stellar Wind, Judge. Kollar~Kotelly required that all applications the FBI determined Contained facilities or information that also appeared in Stellar-Wind reports be cleared with her before being filed with the FISA Court. As she wrote in a January 12, 2005, letter to OIPR, want to ensure, that, to the extent i possible, [Stellar Wind] information is excluded from applications submitted to the FISC and that, if it is necessary to include such information, it is speci?cally identi?ed to the FISC as derived from [Stellar Wind]. collection when the application is presented.? OIPR Deputy Counsel Skelly?Nolen Who was read into Stellar Wind on March 12, 2004, but who had been involved in the scrubbing proceSS sinCe 2001 was responsibl.e,_ alongwith Baker, for coordinating this aspect of the scrubbing process and, When warranted, for'presenting the argument to the judge that application containing information that was the subject of a Stellar Wind report to the FBI should nevertheless be approved for ?ling. WW characterized the applications she presented to Judge Kollar?-Kotelly as either ?Vanilla? or ?nodyanilla.? Vanilla applications were those for which Skelly?Nolen could con?dently represent that the FBI had an. independent investigative basis for the facility identi?ed in the application that was the subject of a Stellar Wind report (for example, a. facility the FBI learned of through FISA coverage that prewdated the Stellar Wind report). SkellyuNolen told us that over time Judge Kollar-Kotelly allowed the vanilla applications to be handled telephonically in an unclassified manner, a departure from her general requirement that the discussions be held in judge?s chambers. Non-vanilla applications typically involved those cases that required Skelly?Nolan to demonstrate that the FBI 354 For example, in one case a telephone number of a particular business did not appear in an FBI database prior to the date it appeared .in. a Steiiar Wind report. However, the subject of. the underlying investigation was the target of an F131 national security inVestigation, and OIPR argued that the telephone number inevitably would have been Connected to the subject through the ?natural course of the investigation,? possibly from toll records associated with other. telephOne-nurnbers used by the subject? trash coVers and open source information, or physical surveillance. . inevitably would have discorered the facility in questidn during the normal course of inVestigation. Skelly?Nolen said these Cases were always discussed with Judge Kollar?Kote?y in person. Sk611y~Nolen told us. that there were instanceswhen Judge Kollaerotelly requested additional information to support the proffered theory for including Stellar Wind information in the FISA application. In some cases, Judge Kollar?Kotelly simply struck a line through the paragraphs in the filed application that contained the Stellar Wind?derived information and annotated in the-margin, ?This section (strike) not considered in evaluation of probable cause,? followed by" her signature and the date. Skellwaolen also said that in. one or two cases Judge Koll_ar?Kotelly required that certain Stellar Wind information arguably neCessary for establishing probable cause be removed from the applications.355 However; in general Judge Kollar~Kotelly accepted and the assessment that there was a non?Stellar Wind investigative basis for the information in question, or that the infermation inevitably would have been discovered even in the absence of Stellar Wind-derived tips to the FBI. After operating under the expanded scrubbing procedures for approximately 6 months, Judge Kollar-Kotelly agreed in NoVember 2004 to allow other FISA Court judges who had not yet been read into the Stellar Wind program to handle scrubbed international terrorism applications. However, Judge KollarsKotelly still required that Skelly?Nolen bring to her attention allvanilla and non~vanilla applications so they could be ?cleared? before being formally ?led. As noted above, it was not until January 2006, when the full FISA Court was read into Stellar Wind, that Skelly?Nolan was able to discuss such cases with other judges. Since that time, the basic scrubbing procedure described above has continued. The Of?ce of Intelligence-attorney primarily responsible for the process told us that each new FISA application that references a. facility that was disseminated under Stellar Wind is brought to the attention of the judge assigned to the cas_e.356 However, with limited exceptions, the FISA Court judges do not. require-that the government inform them of renewal applicatiOns that contain such facilities as "long as theyr were previously bmught to the Court?s attention in the initiation application or prior renewal applications. The Office of Intelligence attorney told us that the government 355 According to Skelly?Notch, Judge KollanKotElly nevertheless allowed OIPR to ?le these applications and approved them. 335 The Of?ce of Intelligence Policy and Review (DUDE) became a. part of the Department?s National security Division, which was created in September 2006. As of April 2608, was renamed the Office of Intelligence. (Ll) APPROVED FOR PUBLIC RELEASE relies on the independent investigative interest theory in the majority of cases in which it seeks to keep a facility in an application. The attorney also said that from the perspective of the Of?ce of Intelligence the scrubbing process is more manageable today than in 316 past because the process is better organized, additional personnel have been read into the program, and the .FISA Ainendments Act of 2008 extended the period of time the government must bring emergency applications to the FISA Court from 72 hours to '7 days. However, from the perspective, the scrubbing process continues to be burdensome and requires a signi?cant expenditure of time and other resources. IV. Impact of Stellar Wind Information on FBI Counterterrorism Efforts This section examines the impacted the information obtained from Stellar Wind on FBI counterterrorism efforts. It ?rst provides statistics concerning the number of tippers from Stellar Wind information tele hon . I e-mail, and content disseminated to FBI ?eld of?ces through rocess. Next, it describes how FBI ?eld of?Ces generally investigatedhtippers and the typical results of the investigations. This Seetion- then summarizes two statistical surveys of meta data tippers the? FBI conducted in 2006 to assess the value of Stellar Wind to FBI operations, and describes observations about the program?s value proVided to us by FBI of?cials and employees in OIG interviews and contained in documents the 01G obtained during the course of this review. Finally, the section examines -FBI'international terrorism investigations commonly cited as examples of Stellar Wind?s contribution to counterterrorisrn efforts inthe United States. WSW A. stellar Wind- Statistics We reviewed FBI and SA statistics relating to the Stellar Wind program. According to documet from tober 1, 2001, to Februal'y 28, 2006, the NSA Provided 7' telephone numbers and e-mail addresses under the stellar Wind program." The FBI disseminated most of these as tippers to ?eld offices. Chart 6.1 depicts the diStribution of the telephone numbers and e_?mail addresses the NSA provided the FBI by 0136- APPROVED FOR PUBLIC RELEASE As described in Chapter Three, the NSA provided ratings, or for each telephone number and e?mail address to help the FBI prioritize the tippers being disseminated to ?eld of?ces. The FBI de?ned the rankings in ECs disseminated to ?eld of?ces in the following manner: and? The FBI included these rankings . 1303 until early 2003. At. that'tlme, Team '10 began to make independent asSessinentsabout' tippers? priority for- the leads on that basis, and generally discontinued including the ratings in ECs. As disbussed in this chapter, Team 10 usually set A'C?on leads for telephone ntimb?ers and email addresses the FBI did not already know and Discretionary leads for those the FBI was aware of in connection with closed or ongoing cases. We couldnot compare the relatiOnship' between the and the leads because the FBI did not maintain. statistics abOut the lead type for each tipper that Team 10 disseminated. However, in connection with our visits to the Detroit and Seattle ?eld of?ces, we examined the number- of individual telephone numbers and e-mail addresses provided to these of?ces and the type of lead assigned for each. We determined that FBI Headquarters assi ned' Action leads for approximfately 50 percent of the total leads sent to these of?ces. As depicted in Chart 6.2, of the leds snt. theDetroit ?eld of?ce from December 2001 to DeCemb'er 20.06, . . Ci as Action leads. During this same period, of th 'I?aa? sent APPROVED FOR PUBLIC RELEASE to the Seattle ?eld of?ce, as Action leads. These ?gures, taken together with the; fact that only 5 percent of the meta data leads the NSA rovided the FBI from October 1, 2001, to February 28, 2006, were ratedh, indicate that FBI ?eld of?ces were required to investigate a substantial volume mbers and email addresses that NSA had rated in terms of their connections to terrorism. CHART 6.2: Percentage of Lead Types for Detroit and Seattle (January 2001 to May 2007) {Sheila (Chart below is With respect to leads that provided the content of 00mmunications the NSA intercepted under Stellar Wind, the In er in which these leads were disseminated depended .onthe mate 0 an; n? . . 294 APPROVED FOR PUBLIC RELEASE .357 The FBI did not maintain statistics on the number 0_ Content tippers. disseminated to FBI ?eld. of?ces from Stellar Wind "'Eoi?itent reports. W. We: also found that?leads were distributed unevenly among FBI ?eld of?ces. The majority of tippers were disseminated to large of?ces With substantial counterterrorism programs such as New York, Washington, Chicago, and Los Angeles; and to of?ces Whose territory contained significant Middle Eastern popWetroit. For example, FBI records-indicate that of the leads disseminated in 2005, 50 percent were assigned-to H'ibm?ii'?ldiof?ces. Table 6.1 depicts the distribution of -in 2005 among FBI ?eld TABLE 5.1: Leads by Division (2005) (Table below is 353 A ?lead? in these ?gures does not equate 'to a single telephone number'or e?m?ajl address; each?lead could contain several tele hone numbers or E~mail addresses. For example, the Detroit ?eld office receivedi in 2005 containing individual tippers. 295 APPROVED FOR PUBLIC RELEASE . . FBI Field Office Investigations of FBI ?eld of?cmequired to investigate eVery tipper i minated unde 359 Rather, the type of lead that the EC assigned Action, Discretion or For Information governed a ?eld of?ce?s response to a tipper??f?0 Emmi:th tippers, which 359 As discussed in Chapter Three, me practice under in the ?rst several weeks of the Stellar Wind program Was t0 36?? number tippers. This ?n - ipper in a Stellar Wind re ort .- 350 An Actiml lead instruCts a ?eld of?ce to take a particular action in response to the EC. An Action lead is ?covered? when the ?eld of?ce takes the speci?ed action or conducts appropriate investigation to address the information in the EC. A Discretionazy lead allows the ?eld of?ce to make a determination Whether the information provided warrants investigative action. A ?eld of?ce that receives a ?For Information? lead is not expected to take any speci?c action in response to the EC, other than possibly route the (Cont?d.) 296. APPROVED FOR PUBLIC RELEASE provided. information derived from communications _of telephone numbers and e.-.mail addresses under surveillance, generally assigned Discretionary or For Information leads. The information in these tippers usually related to individuals already under FBI inVesti ation and was provided to the agents responsible for those cases. ?ee?mail address tippers generally assigned Discretionary leads to field. of?ces unless the information was. particularly urgent. As noted above, content and e-mail address tippers accounted for a comparatively small portion of the tippers disseminated by Team 10. I The vast majority of FBI investi ative activity related to Stellar Wind information involved responding tohtelephone number tippers that assigned Action leads. Team 10 generally assigned Action leads for telephone numbers that. the FBI did not previously know or that Team 10 otherwise deemed a high priority, such as a number? that had a relationship t- a a; is BI investigation.351 From approximately September'2002 (when - 3' - -. was created) to July 2003, Action leads instructed ?eld of?ces to obtain subscriber information for the telephone numbers within its jurisdiction and to c0nduct any ?logical investigation to determine terrorist connections.? However, some agents complained that these Action leads lacked guidance about how to make use of the tippers, particularly given concerns that the I communications provided insuf?cient p'redication to open national scourity investigations. WW) Two changes in 2003- addressed some of these complaints. First, in July 2003 the CAU assumed responsibility from ?eld of?ces for issuing NSLs, as we discussed in Section 11 above. Second, in October 2003 the Attorney General issued new guidelines for FBI nationalsecurity investigations that create new cite; ofin'etiv ?threat assessment??eecommunication to the office personnel whose investigations or duties the information 351 Discretionary leads were assigned to telephone numbers that already were known to the FBI, meaning the number or the number?s subscriber was referenced in an active FBI'investigation, These leads identified the case number of the related investigation and advised receiving ?eld of?ces to ?use theinformation as deemed appropriate? to bring the information to the attention of the appropriate case agent. 352 As noted earlier, the October 2003 guidelines, entitled Attorney General?s Guidelines for FBI National Security Investigations. and Foreign Intelligence Collection SI guidelines], replaced the Attorney General Guidelines for FBI Foreign. Intelligence Collection and Foreign Counterintelligence Investigations. In September 2008, the Attorney General issued Guidelines for Domestic FBI Operations that replaced the October 2003 N81 guidelines with respect to domestic Operations. The September 2008 guidelines use the term ?assessment? histead of ?threat assessment.? (U) APPROVED FOR PUBLIC RELEASE beginning in; OctOber 203, Ation leads asiged' Htelehone number" "tippers instructed'?eld of?ces to conduct threat assessments. During our-review we visited the-Detroit and Seattle?eld of?ces to review their handling 0 leads. In addition, we interviewed several supervisory Specialag'ent's at FBI Headquarters who had experience handling the-leads in their respective ?eld of?ces before being read into the ro ram. In general, these agents? and experience with leads was unremarkable. A threat asSeSSInent conducted by'these agents and typically involved querying. Several FBI, public, and commercial databases for any information about the tipped telephone number, and requesting that various state and local government entities conduct similar queries. Sometimes these queries identi?ed the subscriber to the telephone number before the CAU obtained the information with an NSL. In other cases, the threat assessments continued-after thefield of?ce received the SL results.353 ?S?Lsrb?o?h?I-Si?ee?m? Examples of the databases utilized in their threat assessments inclued 5 -.. the Automated Case. Management System w. databases, such as - -- . The results of their checks of these databases could be eXtensive and include personal information not only about the subscriber to the tipped telephone number, but also about individuals residing in the subscriber?s residence or other acquaintances. In other eases, checks were negative 0r revealed little infermation about the number or the subscriber. 3'33 We were told that it sometimes too i for ?eld of?ces to receive subscriber information from the CAU. A Team imam said ?eld of?ces frequently contacted the CAU about the status of outstanding NSLs because the usefulness of threat assessments conducted on a telephone number were limited without the identity of the subscriber. APPROVED FOR PUBLIC RELEASE The agents and said they reviewed the results of these database checks to determine whether additional investigative steps under the threat assessment were warranted or whether there was predication to open a preliminary inquiry. None of the agents we interviewed could recall initiating any investigations based tipper?.364 They said they frequently closed leads arter? conducting a threat assessment interview of the subscriber and determining that there was no nexus to terrorism or threat to national security. Alternatively, the leads were closed based solely on the results of database checks.- Under the Attorney General?s October 2003 national security invetiatins idelinesUnder. - . - agents were not permittd to explain to subscribershow th obtained the information that caused them to seek an. interview. Instead, agents simply asked subscribers about their contacts in certain countries and: with specific telephone numbers. Agents told us that subscribers generally consented to these interviews and were cooperative and forthcoming. In a few cases, subscribers refused the request or sought the advice of counsel?)66 35? Prior to the July 2003 decision to assume responsibility for issuing NSLs, agents in FBI ?eld of?ces often opened investigations in order to issue NSLs to obtain subscriber information. These cases usually were closed after the agents conducted investigations and determined the domestic telephone number tipper did not have a nexus to terrorism. 355 On September 29, 2008, the Attomey General issued new guidelines for mestic FBI o?e'rations, which includes national security inestigations. hese guidelines I . .. .I Dag Attorney General's Guidelines for Domestic FBI'Op'eration's, Scetion {September 29, 2008], with Attorney General?s Guidelines for FBI NatiOnal Security Investigations and Foreign Intelligence Collection, Section II.A.6. (October 31, 2003). 3'35 Several of the threat assessment interviews'that agents described to us and that we reviewed in FBI documents provided examples of how. some domestic-telephone numbers appeared on their face to be in contact with an individual involved in terrorism. In the Seattle ?eldof?ce, several interviews revealed that the foreign telephone calls placed to domestic numbers were made using-a pre-?paid telephone service from local stores because the callers, often relatives of the domestic contacts, did not have telephone service at their residences; Thus, while the intelligence indicating'that an individual involved in terrorism used the fOreign telephone nUmber might haVe been accurate, the number also was used by" individuals about whom there'was no reason to believe were involved in terrorism. WW APPROVED FOR PUBLIC RELEASE FBl-?eld offices were required to report the results of the threat assessments to the CAU. In most of the E03 we reviewed, the ?eld of?ces reported all of the information that was located about the telephone numbers, including the details of any subscriber interviews, and then stated. that the office determined the tipped telephone number did not have a hemis- to terrorism and conSidered the lead closed. Much less frequently, ?eld offices reported that a preliminary investigation was opened to conduct additional investigation.357 Regardless of whether any links to international terrorism were identified, the results of any threat assessments and the information that was collected about subseribers generally were reported in communications to FBI Headquarters and uploaded into FBI databases. We C. FBI Statistical Surveys of -Meta Data Tippers The FBI made several attempts, both informal and more formal, to assess the value of Stellar Wind to FBI cOun?terter?rorism efforts. The first was an informal attempt by the OGC. FBI General Counsel Valerie Caproni told us that in early 2004 she Spoke with. the CAU Unit Chief and the Section Chief for the Communications Exploitation Section about trying to assess the value of Stellar Wind informatiO'n. According to Caproni, the two managers stated that based oil-anecdotal and informal. feedback from FBI ?eld offiCes, the telephony meta data tippers were? the most valuable intelligence from the program for agents working on counterterrorism matters. However, Caproni. told us it was dif?cult to conduct any meaningful assessment of the program?s value in early 2004 because FBI ?eld of?ces at that time were not required to report to FBI Headquarters the- investigative results of the Stellar Wind leads disseminated under FBI Headquarters did not make such reporting mandatory until October-2004. As a result, Caproni?s discussions with the FBI managers did not result in any written of the program. 3?37 advised field of?ces that investigative feedbackabout tippers was important because it informed the ?reliable source?s? (the. assessment of whether to continue analyzing the ?foreign entity? that caused the tippers to be disseminated. An NSA of?cial told us that such information was also important to improving the analytical prbcess, but he said it was sometimes difficult to obtain such feedback. A CAU Unit Chief told us that the. NSA Expressed particular concern about insufficient feedback from the FBI regarding investigative results the tippers? nexus to terrorism. He said this was a dif?cult situation in that mmfessed to be sending out high value information about known links to terrmt was ?uncomfortable? to receive little feedback from ?eld of?ces other than, ?You?re sending us garbage.? Members of Team 10 told us that efforts to improve ?eld of?ce feedback over time had mixed results. APPROVED FOR PUBLIC RELEASE gs The second informal assessment of the value of Stellar Wind came after the December 2005 New York Times articles that publicly disclosed the content collection aspect of the Stellar Wind program. Caproni said that in preparation for Director Mueller?s- testimony at congressional hearings in 2006 on the issue, she attempted to evaluate the Stellar Wind program. Caproni stated that because NSA Director Hayden asserted publicly that the program was valuable, she wanted Mueller?s testimony to identify, if possible, any investigations that illustrated Stellar Wind?s positive contribution to the counterterrorism efforts. Caproni stated that this effort was complicated by the fact that Mueller?s testimony would be limited only to the aspect of the program disclosed in the New York Times article and subsequently con?rmed by the President the content collection basket. WW As discussed above, Caproni said that FBI ?eld of?ces did not find this aspect useful as the tee hon eta data, rimaril because - - i . . was comparatively small and the FBI had FISA Coverage on many of these already. Caproni told us that ultimately she Was able to identify ?a couple? of centent tippers that contributed to FBI investigations, but she commented that there were not many. The FBI subsequently conducted two more efforts to study the Stellar Wind program?s im act on FBI 0 erations, both in early 2006. The ?rst study Sampled the? tippers the FBI had receiv Stellar Wind from 2001 through 2005. The second study reviewed? e?mail tippers the NSA provided the FBI from August 2004 anuary 2006. In both of these studies, the FBI sought to determine What percentage of tippers resulted in ?signi?cant contributio_n[s] to the identification of terrorist subjects or activity on U.S. soil.? We describe in the next sectiOns the ?ndings of these two studies. WW 1.. Early 2006 Survey- Telephony and. E-Mail Meta Data Tippers Following the December 2005 New York Times article publicly disclosing the content collection aspect of Stellar Wind, additional members of the Senate and House Intelligence Committees were read into the program. During this time, the NSA pro?Vided to cleared members of briefings about-Stellar Wind, and the FBI was asked to testify about its participation in the program. In preparation for these brie?ngs and testimony, the FBI sought to quantify the value of Stellar Wind intelligence for FBI counterterrorism operations. The CAU conducted a statistical study for this purpose, and in May 2006 the FBI provided a copy 301 APPROVED FOR PUBLIC RELEASE of the statistical report to the Senate Select Committee on Intelligence. The stud conducted during a 1-week period in January 2006, sampled? unique telephone numbers and e?mail addresses the SA provided the FBI from the inception of the Stellar Wind pregram through 2005.363 The study sought to determine What percentage of the tippers resulted in ?signi?cant contribution[s] to the identi?cation of terrorist subjects or activi on king with an FBI statistician, the CAU determined thatWrandomly selected tippers would be requiredto obtain results. Approximately 30 from the Counterterrorism Division were assignedthe task of reviewin tippers to determine the dispositiOn of each.359 The Sought to determine Whether a particular tipper made a ?signi?cant? centribution to FBI counterterrorism efforts. For purposes of the Study, a upper-was considered ?signi?cant if it led to any of three investigative results: the identi?cation of a terrorist, the deportation from the United States of a suspected terrorist, or the development of an asset that can report about the activities Of tel-wrists.? A tipper that led to a ?eld Of?ce Opening a preliminary or full investigation was not considered ?signi?cant? for purposes of the study. W) "The. researched each tipper?s diaposition in investi ative records centained in FBI electronic databases, beginning with the 7 -EC that disseminated the-tippers. to the ?eld. If an analyst conclLide'd based on this research that a tipper was signi?cant, a second analyst Who was familiar With the Stellar-Wind program further reviewed that determination. If the CAU analySt agreed with the initial ?nding, the tipper 353 to the CAU the inception "of Stellar total umber of" I The study also t' include Cont?n?tibpefg? I I and were told -- - 369 Most ofthe were.th re? tellar'Wi that the study concernedthe disposition of Iea_ds._ Of tippers reviewed by. the approXimater 12 percent a figure "consistent with the overall tipper breakdown bets-ten efmail addresses and telephone numbers; APPROVED FOR PUBLIC RELEASE and supporting information was presented to the CAU Unit Chief for a final review.370 . - 1's methodology, the study found that-1.2 percent, 0 . - tippers were ?sini?cant.? The study extrapolated this ?gure to the entire tipers and determined that one could expect to ?n '5 tippers the SA provided the FBI under Stellar Wind wee agrees-The report documenting the study?s findings included brief descriptions 0-?signi?cant? tippers. For example, according to the report, one tipp?er led to the opening of a full investigation that developed evidence that the user of the tipped e?mail address had ?de?nite ties to terrorism.? The user Was arrested and pled guilty to charges of Anotherti - er led to the idenation fan idividu Several-of the ?significant? tippersrelated to ongoing FBI investigations, For "example, information from one tipper designated as signi?cant was already known to the relevant FBI ?eld office, which had an investigation chi. oini concerning asubject associated with the tipper prior to receiving the EC. According to the study?s brief description of the case?s signi?cance, the investigatiire ?le stated that'the tipper was ?very bene?cial in the on?going investigation? by connecting the subject to terrorism, without describing that connection. Another tipper caused a ?eld of?ce to change a 'relirnin investi ation to a full investigation regarding the possible illegal The tipper indicated a connection liminary investigation and a known terrorist. - The study also found that 28 percent'of tippers were never disseminated to FBI field of?ces for investigatioriZM/W?KEEording to the report, the CAU ?ltered out these tippersbased on ?lack of signi?cance? when they Were ?rst provided to the the .NSA. These tippers were deemed non-signi?cant for purposes of the study, In addition, the study found that for 22 percent of the sample tippers, FBI ?eld of?ces did not report any 37? According to a CALI analyst closer involved with the study, estabiishing a fairly ?tight? criteria to identify ?signi?cant? tipperswas necessary in order to obtain statistically Signi?cantresults within the one?week time frame the CAD Was given tacompls?tethe . review. the GIG that initially applied a breeder ?Signi?cant? standard in their review-'3 of the; tippers, but that it immediately became apparent that a stricter standard was required. The Unit'Chief for the CAU told. the'OIG that the de?nition of ?fsigni?cant? for "the study consensus among? - Counterterrorism Division operational and-analytical personnei. - APPROVED FOR PUBLIC RELEASE investigative results. The study assumed that the ?eld of?ces investigated the leads that were set but did not document their work in ACS. These leads were signi?cant, FBI executive management program was ?of Value.? The FBI also said that FBI Di and Deputy Director Pistole provided congressional testimo and May 2006, respectively, about the value of the program, which the FBI OGC stated was based in part on the results of the study. 371 As noted, Caproni cited this lack of reporting from field of?ces as a reason for not being able to conduct a meaningful as_seSsment of the Stellar Wind program?s Value in the spring of 2004. FBI Headq'us 3 0t officially require ?eld of?ces to' report mvestigative results conce tippers until October 2004. ACcording to the . a 37? By its methodology the only tippers the study assessed for ?significance? were those for which ?eld of?ces reported investigative results to-theTCAU and therefore APPROVED FOR PUBLIC RELEASE SA continued to provide e?rnail addresses to the FBI in Stellar Wind reports. e?mail tippers the This second study, which reviewed each -. NSA provided the FBI from August 2004 through January 2006, applied the same methodology for assessing ?significance? that was used in ?rst study. The second study found that none e?mail tippers was ?significant? under this standard. The report-noted, however, that many of the investigations related to the reviewed eamail tippers were still ongoing. In addition, the study observed that some of the tippers reviewed had only recently been disseminated to ?eld of?ces for investigation and that it was possible. investigation of these tippers had not been completed. if nun/NF} D. FBI Judgmental Assessments of Stellar Wind Information $143151)? To attempt to further assess the value of Stellar Wind information for the FBI, we interviewed FBI Headquarters officials and employees who regularly handled Stellar Wind information. We also ti personnel in FBI field of?ces Who were.resp0nsib1e for handling .. .. tippers. We asked these tnesses for their assessments of the impa'Ct of Stellar Wind or if": information on FBI counterterrorism- operations. We also recognize that FBI of?cials ad ent other than those We interviewed may have had i - different than those summarized The members of Team 10 and its predecessor '37 i. .- were strong advocates of the program and stated Contributed signi?cantly to FBI international terrorism investigations. Several claimed that program tippers helped the FBI identify previously unknown subjects, although they were not able to identify for us any specific cases where this occurred. Other witnesses Cited the I increased cooperation. with the NSA. on internatiOnal terrorism matters as a side bene?t of the Stellar Wind p?rograrn.373 FBI of?cials and agents from the International Terrorism and Operations Section (ITOS) expressed a more moderate assessment of Stellar Wind. None of the lTOS-of?cials we interviewed could identify signi?cant investigations to which Stellar Wind substantially contributed. However, "373 General'CbunSel Julie Thomas 2180 Said that Stellar Wind helped improve the relationship between the FBI and CIA. She said the program provided an opportunity to demonstrate the ?interoperability of different agencies,? andbased on her experiencedealing With ptogram~relatedmatters the relationship between the FBI and the iNSA.was.?betternow than ithas ever .. .. . .. . . APPROVED FOR PUBLIC RELEASE they were generall supportive of the program, often stating that it was tool of many? in the fight again one st international terrorism. ?rmin ed in terrorism or identifyin a subject?s contacts with gadditional terrorist contacts. .gent said that FBI ?eld might have been less critical of had there been agents in . He said that such agents would have eadqua?rters? of?cials to assure others in their resp?ectiveofi? I "terviewed who eld of?ces We visited. . fation developed program was not an APPROVED FOR PUBLIC RELEASE as compared to other counterterrorism leads the of?ce received because they did not provide suf?cient information for him to prioritize the leads.374 Antler supervisory special agent expressed a similar assessment of .- stating that?he felt the project ?perverted the logical of tasking.? He said that absent the leads? special status as part of "3 35." a very low percentage of the tippers would have been considered priority matters. He told us that he did not have the freedom to prioritize the leads in the manner he felt was warranted by the information provided 111?1303. 413% Field office agents who investig . of the lack of details contained in -. Eds?about the nature of the terrorist connection to the domestic contact, 01? about the contact itself, such-as the duration or frequency of the calling activity. Some agents we intervieed sd ey also occasionally were frustrated by the prohibition on .- i information in any judicial process, such as in FISA applications, although none could identify an investigation in which the restrictions adversely affected Most of the. agents we interviewed viewed; tippers as just another type of lead that reqtiired attention, and the agents generally diot .dle the leads with any greater care or sense of urgency - counterterrorism leads.- _Moreover, none of the agents need identi?ed an investigation in their offiCe in which I .: leads also were critical played a signi?cant role, nor could they recall how such a tipper Centribute?d to any of their internatoal terrorism cases. Nevertheless, the agents generally viewed as a potentially valuable source of information, noting that the information developed from the investigations of tippers might prove useful in the future. Agents also stated that through the threat assessmen conducted of the subscribers to tipped telephone numbers, .. ?opened a window? to populations Within the ?eld offices?jurisdiction that itthey .- had little investigative value to his of?ce. First, he said the leads did not provide enough detail about the reliability of the information being provided. Such details might include, for example, what other individuals had access to the foreign telephnne allegedly used by someone involved in ?international-terrorism, and how many calls were made from that number and for what durations. These details would help evaluate the threat represented by the foreign . number?s contact With the tipped domestic number. Second, the 'superviSOrsaid the !tippers lacked direction-about what the of?ce should do with a tipped number after-_threat assessment has been .con_ducted.- 1W APPROVED FOR PUBLIC RELEASE In 2007, FBI Deputy Director John Pistols briefed the Senate Select Committee on Intelligence concerning the participation in the Stellar Wind program. A document prepared in connection with that brie?ng addressed, among other subjects, the program?s value in FBI national security'investigations. The document stated, national security investigations are rarely the result of a single source of infermation. Rather they occur after exhaustiVe hours of investigation and the use of legal process in which hits and pieces of intelligence from many sources are gathered and combinedinto a coherent Whole. The success or e?ectiveness of any intelligence program Whether Stellar Wind . . . or anything else is sometimes dif?cult to assess in the abstract because of that blending of multiple strains of intelligence and because success should never be measured only in terms of I terrorist plots that have visibly been disrupted, but also in plots that never formed because our investigative actions themselves had a disruptive effeCt. (Italics in Grighlal?l?s?t?f?sW . We intervieWed FBI Director Mueller in connection with this review and asked him about the value of Stellar Wind to the counterterrorism program. FBI Director Mueller told us that he believes the Stellar Wind program was useful and that the FBI must follow every lead it receives in order to prevent future terrorist attacks. He said ?communications are absolutely essential? to this task and called meta data the ?key? to the 375 A ?talking points? document the FBI drafted for Director Mueller also expressed this View. The document stated: [The] impact of any single piece of intelligence or program is dif?cult to quantify.- Combination of various information, including humint, sigint, and elsur, is necessary to address the global threat. Accordingly, it is not possible to make an unequivocal ?but for? connection between a tip and any particular FBI investigation that has resulted in a seizure or arrest. informationfhas ampli?ed; corroborated and directed. FBI investigative resources. 7?7 6. 6? N?l communications analysis. Mueller also stated that to the extent such information can be gathered and used legally it must be exploited and that he ?would not dismiss the potency of a program based on the percentage of hits.? Asked if he was familiar with any Speci?c FBI investigations that represent Stellar Wind successes, Mueller said that as a general matter it is very dif?cult to quantify the effectiveness of an intelligence program without ?tagging? the leads that are produced in order to evaluate the role the program information played in any investigation. We also asked Mueller about the issue of allocating ?nite FBI resources to respond to Stellar Wind leads. Mueller said that in the period after the September 1 1 terrorist attacks, the FBI remained in a state of continuous alert for several years. Mueller stated that he understood the President?s desire to take every step to prevent another terrorist attack, and believes that it would be wrong not to utilize all available capabilities to accomplish this, so long as it is done legally. ll Mueller also commented edia reports regarding FBI agents? frustration with the'volume of I. -. leads. For exatnple, articles described complaints of unidenti?ed FBI ?eld a ent re arding the lack of information in-the tippers they received under [i ii 3' i. and how the high volume of tippers necessitated devoting signi?'cant?resources to what were described as ?dry leads.?375 Mueller said that the agents? frustration Was similar to that expressed about other sources for the thousands of leads the FBI received after September 1 1, such as calls from citizens._ Mueller stated that he understbod the frustration associated with expending ?nite resources on numerous leads unlikely to have a terrorism nexus, but said that his philosophy after September 11 was that ?no lead goes unaddressed.? Moreover, he stated that frustrations can result from any counterterrorism program. We also interviewed Kenneth Wainstein, the ?rst Assistant Attorney General for the Justice Department?s National Security Division, which was created in September 2006. Wa'instein told us that he was aware of ?both sides? on the question of Stellar Wind?s value. He also said that he heard the government had not ?gotten a heck of a lot out of it,? but noted that NSA Director Hayden and FBI Director Mueller have stated that the program was Hayden told us that he alwa felt the Stellar Wind rovram was 375 See, Bergman, et al., ?Domestic Surveillance-z. The Program; Spy Agency Data After Sept. 11 Led F.B.I. to Dead-Ends,? The New York Times,- January-17 ..HH. . . awknsawtheFBI believed the leads represented ?Something certain,? when in {fact the leads were only ?narrow threads? and that the idea was to help build the intelligence base. Hayden also observed that the enemy may not haVe been as embedded in the United States as much as feared, but said that he believes Stellar Windhelped determine this. W) E. Examples of FBI Counterterrorism Cases Involving Stellar Wind Information AS part of our review, we sought to identify specific FBI international terrorism investigations in which Stellar Wind information was used and to describe the information?s speci?c contributions to the investigations. We agree with FBI of?cials that-this is a dif?cult task in view of the nature of these investigations, which frequently are predicated on multiple sources of information. To the extent Stellar Wind tips played a role in an investigation, the tips could be one of several sources of information acquired over time and used by the FBI to pursue the investigation. Moreover, the FBI agents and rive-interviewed during our review could not say that ?but for? a Stellar Wind tipper a given investigation would not have been productive, and they were unable to recall speci?cally how, if at all, Stellar Wind-intelligence may have caused their investigations to take a particular direction. Our review did not seek to describe Stellar Wind?s impact on each FBI field of?ce, and we-recognize that FBI of?cials enother th we interviewed might have had experiences with 3753'? those summarized in this chate. - - Bcas s'uh'reporting was not disseminated ?eld of?Ces under ?Many contribution. the information might have made to investigations FBI personnel we interviewed were familiar with might not haVe been accounted for in our questions about Stellar Wind and In view of these dif?culties, we examined several investigations frequently cited in NSA and FBI docilments the OIG obtained during this I - try? APPROVED FOR PUBLIC RELEASE terterrorism efforts.377 For these investigations, we examine/M FBI Letterhead Memoranda describing the status of investigative activities in speci?c cases, Counterte'rrorisrn Division responses to questions about the role of in speci?c investigations, government pleadings ?led in international terrorism prosecutions, and FBI brie?ng materials?"8 8377 As noted above, the FBI was not the only customer of Stellar Wind information. The CIA and the National Counterterrorism Centeralso received Stellar Wind reports potentially relevant to theirOperationS. Pursuant to a directive in the FISA Amendments - Act of 2008, Intelligence Community OIGs arses-ramming the impact Stellar Wind had on their respective agencies or if Stellar Wind information contributed to their agencies? operations. I 375 - The brie?ng materials Were prepared by the Communications Exploitation Section (CXS) Shortly after aspects of the Stellar Wind program were publiely revealed in .a series of. New YorkiTimes articles in DecemberQOOSQ The briefing materials were prepared at the dir'eetion'of FBI General Counsel Valarie Caproni,? who antibip'ated that DireCtor 'Mueller Deputy Director Pietole would be calledto testify about the program. These briefingrnaterials were intended to help prepare Mueller and Pistole for theirtestimony. "The brie?ng'materials include summaries of speci?c cases relating tie-Stellar Wind information that were highlighted by thCl?lSA. APPROVED FOR PUBLIC RELEASE This information '_gex_israted - IIEad'sl for FBI'?e'ld of?ces. Several {?fth . ted in the FBI initiating investigations of wt) identify any involvement _in_ terr?oris'm. In moat castas, the FBI Condu'dEd'. that the-individuals? connection?was not related to any inVolVement in terrorism. However, in one cause FBI inve'sti' 'ation det - individual was in contact with additional Engaged in activities indicating possible ix?owementiin-terrorist activitiesgasl In anoth?rCaSt??, the FBI Wedesc?bea_mam - APPROVED FOR PUBLIC RELEASE who had come - who was not under voluntarily departed the country The sub'ect of another of the leads generated by ?was already under investigation by an FBI ?eld of?ce. The lead caused the FBI of?ce to convert its preliminary inVesti'gation into a full investigation and obtain emer enc authorization to conduct electronic surveillance under 7 used by the individual. The FBI 3130 interviewed the times and issued National Security Letters However,-the FBI did not develop any to terrorism or terrorist groups. ROVED FOR PUBLIC RELEASE - ~r - 4. APPROVED FOR PUBLIC RELEASE However,.acc0rdin to documents rvid therefore Was unable. to .establish'that there Was a nationwi de Conspiracy terrorism. to provide material support to Nevertheless, FBI decuments state that aftei-was closed, field of?ces wit -re1ated investigations conducted ?successful disruption operatlons criminal activities that were identi?ed during the course of the investigations.- The-F1313 ened am investigation cin- based on his statement? . Acting in coordination math?law enforcement and mtelhence aenmes'V'e hat a his intigatitjn" "be'loio'wii by 'e-code APPROVED FOR RELEASE __Th_e EC set a discretionary lead far the FBI I "encouraged: the ?eld "of?ce to ?provide any pertinent follow?u u?estions'to -. . CAU, for submission to and consideration by the source.? Ans? I res 01136 to an OIG request for information ab - - in" case stained that as a of the tipperUnited States an .- 335 FBI documents we reviewed do not indicate how this information was obtained or whether?jt was derived from Stellar Wind. -- 3&5 - tafthat it_'_'co'u'1d not be veri?ed w'he'th? Meow? . it is noted that at the time States the FBI had FISA coverae? 01 Accordin- FBI brie?ng materials state that the FBI first be an surveillance of an individual later determined to be misidenti?ed; Through open source investigation, the FBI obtained the telephone number of the misidentified subject and was granted emergency authority On that number.- FISA surVeillance was initiated on the telephone believed to be use On the FBI employees located at the SA [Team 10) submitted a request to the NSA for call chaining analysis and consideration for Stellar Wind" ?tasking,? or content collection. The NBA initiated content collection on the erroneous telephone number the same day. Contact chaining on the telephone number did no with any knewn terrorist-'assoeiated numbers. On it was determined?was not using the tasked and chained under stellar Wind [authority ce I - uthorized electronic sm'Veillance of' the number ByWongoing physical surveillance con?rmed that the telephOne number believed to be asSOciated had been misidenti?ed. ?S?S??t?ijfSIf-f?e-f-N?r' uSpeCts in the. I I I An' FBI document stated that sine arrest-?has provided a wealth of intelli ence to the FBI and the Intelligence Community,? and th the intelli enc rbvided has been disseminated to intelligence service:- 35?? intelligence analyst who'drafted the" summary of for the-CXS brie?ng materials toldthe 01G that she concluded that ?probably- based 0 APPROVED FOR PUBLIC RELEASE unann-I - Wremains incarcerated According to- FBI FewerPoint resentation about the role in Stellar Wind: th tipper ?facilitated the ability to locate, initiate physical enrveillanCe, and. debrie in a timely manner.? The facts reviewed by the-01G Show that failed to result in neti?cation to the FBI. of% return to the'Umted States but that through Stellar Wind inform'a FBI was able to lecate-and obtain surveillance 0. APPROVED FOR PUBLIC RELEASE F13 briefing material, as a result of the- tipper eneda full international terrorism investigation on receiving the ?mques'ted' ,7 . The FBI Subsequently obtained and began FISAeIectronic Surveillance According to an Letterhed Memorandum (LHM) draf- ..-. 3 3*a_ fro interviewed-in connection with the effort-to- w? the FBI suspected of having ties to APPROVED FOR PUBLIC RELEASE In'addition, te LHM addmonal evidence gathered through several detainee interviews The-arrest and indictment arose out 0? APPROVED FOR PUBLIC RELEASE 011M Wtrial, was 'cami?ted Oh- I 393 ?He-iwas Sentenced. to? prison term. an undated-51111111121 of under the Stellar Wind the NSACharacterizcd-uas I - APPROVED FOR PUBLIC RELEASE The government?s response to the stated that the FBI initiated a national schritv-intemational terrorism investigation of after receiving the EC. The overnment stated that the Theirsmo'sed-xitsl. a - investigatioh 0? -a_fter it con'eluded. had no news 7 APPROVED FOR PUBLIC RELEASE n. 1' Ascording to FBI I I based on the associates I ration 11 ed in discovery litigation concernin ipper in investigation was not . 7 I "According to order-however the dee aratlo stated that 6: t1 the FBIbrie?n the FBI applied for and obtained a FISA order. to conduct eleetron'ic su] "Ce and a physical Search By thistime had been in FBI custody for several da ort'of the application, the government reperted that also in custody at that time, recently had 011 .su APPROVED FOR PUBLIC RELEASE The NBA recommended that the FBI cite -investigation in brie?ng materials as an example of Stellar Wind?s contribution to counterterro'rism efforts. The FBI brie?ng materials also state that the tipper in investigation was ?instrumental in becoming the sabject of a Full Investigation on WSW In response to the request for information about the role- information played in the investi anon-the Counterterrorism Division told us?that, based on its searches of internal FBI databases and discussions with-the ease agents, ?no ?eporting factored - investigation.? Accordin to a declaration the FBI ?led in prOSCCutiOn, the-tipper in investigation ?did not directly lead to any i ?rm or evidence that was used in the" prosecution of the "Case against and Was not incorporated into any application to a court, including'the APPROVED FOR PUBLIC RELEASE V. OIG Analysis (U) The FBI created the .- project to disseminate Stellar Wind information as leads to FBI field of?Ces and assigned the Team 10 to the NSA to work on Stellar Wind full?time for this purpose. We found that the co-location improved the knowledge about Stellar Wind operations and gave the NSA better insight about how FBI ?eld of?ces investigated Stellar Wind information. .We were told these benefits translated to improvements in the Stellar Wind report drafting process, and by extension, in .3 .- .. leads, WW) One of the es the FBI implemented to attempt to improve the investigation of was to make FBI Headquarters-based CAU, instead responsible for issuing National Security Letters (NSL) to obtain subscriber information on tipped telephone numbers and e?mail addresses. This measure inated in July 2003, was intended to address agent concerns that leads did not provide sufficient information to initiate national Security investigations, a prerequisite under Justice Department investigative guidelines to issuing SLs. However, we found that the CAU issued the SLs from the control a n~veti ative ?le created in September 2002 to repoSitory fo g_ [145} communications between FBI Headquarters and ?eld of?ces. leaning the NSLs from a control ?le instead of an investigative file was contra toitern'al FBI policy. The FBI ?nally opened an investigative ?le for .. -. project in November 2006. We believet OGC of?cials involved in the decision to issue NSLs from the if I 7 control ?le concluded ii that the FBI had sufficient predication either to connect the ff} 3'2 . . NSLs with existing preliminary or full investigations of al Qaeda and ai?liated groups or to open new preliminary or full investigations in compliance with Justice Department investigative guidelines. However, Wealso concluded that t'e I Could have, and should have, opened an investigative ?le for the [Ff project when the decision ?rst. was made to have FBI Headquarters leads. WW We also des'cribed in this chapter a change the FISA Court made in March 2004 to the ?scrubbing? prosess used to account fer Stellar Wind information in international terrorism FISA appliCations. The change requires the Team 10 and FBI OGC, in coordination with the Department?S-Of?ce of Intelligence (formerly- OIPR), to determine whether any facilityftelephone number or e-mail address) that appears in a FISA application also appeared in a Stellar Wind report-and, if so; whether the FBI had'developed,independent of Stellari i vestigativ'e'intere'st in "issue NSLs for The facility before it was the Subj set 'of "l tipper, or whether the I I APPROVED FOR PUBLIC RELEASE facility would have been ?inevitably discovered.? FISA Court Presiding Judge Kollar-Kotelly imposed this additional scrubbing requirement after being advised of modi?cations made to Stellar Wind in March 2004 following the Justice Department?s revised legal analysis of the program. The FBI and Of?ce of Intelligence continue to expend signi?cant resources to comply with this scrubbing requirement.399 However, we did not find any instances of the requirement causing the FBI not to be able to obtain FISA surveillance coverage on a targets?(33W Our primary focus in this chapter was to assess the general role of Stellar Wind information in FBI investigations and its value to the FBI ?s overall counterterrorism efforts. Similar to the FBI, we had dif?culty assessing the specific value of the program to the counterterrorism activities. However, based on our interviews of FBI managers and agents and our review of documents, and taking into account the substantial volume of leads the program generated for the FBI, we concluded that although the information produced under the Stellar Wind program had value in some counterterrorism investigations, it played a limited role in the overall counterterrorism efforts. The vast majority of Stellar Wind information the SA provided the FBI related to telephone numbers and e?mail addresses the NSA identi?ed through meta data analysis as having connections to individuals believed to be involved in_.inte I?ll l_l l?hi? 4.1? FBI agents and with experience investigating leads told us that most leads were determined not to have ancenet?io? to 39" As noted earlier, the scrubbing procedure applies both to NSA information derived from the Stellar Wind program and to information derived from the FISA Court?s and Section 215 bulk meta data orders. This is so because until mid?2008, When the Stellar Wind programof?cially Was closed, leads the NSAdevelope-d from the NBA-authorized bulk meta data collections were disseminated under theSteilar Wind compartment; I 400 Stated another may, the Stellar Wind pregramgenerate 5i;- I: it": leads for the FBI each month from October 2001 to February 2006-. - APPROVED FOR PUBLIC RELEASE terrorism, and they did not identify for us any speci?c cases where leads helped the FBI identify previously unknown subjects involved in terrorism [although several stated that this did occur). This is not surprising given that the vast majority of leads sent to FBI field of?ces for investigation concerned telephone numbers and e?mail addresses that the NSA already had determined were at best one or twO steps removed from numbers and addresses suspected of being used by individuals believed to be involved in terrorism. W) The two statistical studies that attempted to assess the ?significance? of Stellar Wind meta data leads to FBI counterterrorism efforts did not include ex 'onclusions on the pro ram?s usefulness. The first study found - - samples taken from meta data leads the om approximately October 2001 to December 2005, I ed the'FBI fr or 1.2 percent-made ?signi?cant? cbutins. The Second statistical study, which reviewed each e?mail tippers the NSA provided the FBI from August 2004 through January 2006, identi?ed no examples of ?signi?cant? contributions to FBI counterterrorism efforts.401 The FBI OGC told us that FBI executive management?s statements in congressional testimony that the Stellar Wind program had value was based in part on the results of the ?rst study. While we believe Stellar Wind?s role in FBI cases was limited, assessing the value of the program to the Overall counterterrorism efforts is more complex, Some witnesses commented thatan intelligence program?s value cannot be assessed by statistical measures alone. Other witnesses, such as General Hayden, said that the value of the program may lie in its ability to help the Intelligence Community determine that the terrorist threat embedded within the country is not as great as once feared. Witnesses also suggested that the value of the program should not depend on documented ?success stories,? but rather on maintaining an intelligence capability to detect potential terrorist activity in the future. we interviewed generally were supportive of the Stellar rsone program, calling the information ?one tool of many? in the anti-termris'm efforts that ?Could help move cases forward? by, for example, con?rming a Subject?s contacts with individuals involved in terrorism or identifying additional terrorist contacts. However, FBI personnel also frequently noted fo_r__us the deficiencies in the Stellar Wind information disseminated to FBI field offices, such as the. lack of details 401 As described earlier in this chapter, the FBI considered a tipper ?signi?cantthreeinvestigative results: the identi?cation of a terrorist, the deportation - from the United-States of a suspected terrorist, or the development of an asset that "can report about the aetivitieis of terrorists. I cited APPROVED FOR PUBLIC RELEASE about the foreign individuals allegedly involved in terrorism with whom domestic telephone numbers and e?mail addresses were in contact. Yet, these FBI employees also believed the possibility that such contacts related to terrorism made investigating the tips Some FBI employees also cited the increased cosperation with the SA on international terrorism matters as a side bene?t of the Stellar Wind program. FBI Director Mueller told us that he believes the Stellar Wind program was useful and that the FBI must follow every lead it receives in order to prevent. future terrorist attacks. He said ?communications are absolutely essential? to this task and called meta data the ?key? to the communications analysis. Mueller also stated that to the extent such information can be gathered and used legally it must be exploited and that he ?would not dismiss the potency of a program based on the percentage of hits.? We sought to look beyOnd these comments of general support for Stellar Wind to specific, concrete examplesof the program?s contributions that also illustrated the role Stellar Wind information could play. We therefore 'eXamined .?ve cases frequently cited indocuments we reviewed and du?ngbur'interviews as examples of .Stellar Wind?s contribution to the counterterrorism effort. 'The'Casesincl 1n oanothCr Case, Stellar revald' the 'li?I tat - Accoring to the-FBI, sed or ?was of no ?nest and conviction, it . - tipper that led to the nationalse'curity investigation that 'preCecle prosecution. 1mm ?Vii The ?nal investigationwe examinedgdidinot appear to result"- directli from Stellar? Wind information, The. NSAand the. FBI attimeshaVe case as an example of the contributions of Stellar to 1 APPROVED FOR PUBLIC RELEASE FBI nation mm in I counterterrorism investigations. An rosecution indicated that - Moreover, the FBI-told us in res on'se to our inquiry that Stellar Wind information did not ?factor hatch investigation.? However we concluded that Stellar Wind may have played some indirect rol M??rv??becoming the subject of a Full Investi ation by the FBI. Our review of documents indicated that investigation, which appears 'to have been advanced by Stellar'Wind reporting, might have caused the FBI to reopen its inves'c We were unable to describe with the same certainty as investigation the extent of Stellar Wind?s contribution to investigatiOn, in part because of differing assessments in the own documents regarding the role of Stellar Wind this matter. In short, We found that Stellar Wind generally has played a limited role in FBI c_ounterterrorism investigations, but that the evidence shows there are eases where Stellar Wind information had value. For example, in some of the cases we examined Stellar Wind information caused the FBI to take action that led to useful investigative results. However, in others the connection between the Stellar Wind-information and the investigative actions was more dif?cult to discern. As dismissed in Chapter Five and in this chapter, Stellar Wind?s bulk meta data collection activities'were transitioned to FISA authori an ongoing. The FBI, under the _project (the successor to requires ?eld [offices to threat assessm??fslo?mWW" telephone numbers and e?mail addresses the NSA: derives from this PISA-authorized collection that the FBI is not already aware of, including numbers and addresses one or him steps removed from direct contacts with individuals involved in terrorism. In view of Our'?ndings about the Stellar Wind program?scontribution .to the counterterrorism__erts we believe that the FBI should regularly assess the impact 5 leads have on FBI ?eld of?ces and Whether limited FBI resouriie's Should be used to investigate all of them. W) Another consequence of the Stellar Wind program and the approach to assigning leads was that many threat assessments were Conducted on individuals located in the United States", including US. per'SOn's; Who'were determined not to have any nexus to terrorism or APPROVED FOR PUBLIC RELEASE ON NOFORN represent a threat to national security.402 These assessments also caused the FBI to collect and retain a signi?cant amount of personal information about the users of tipped telephone numbers and e?mail addresses. In addition to an individual?s name and home address, such information could include where the person Worked, records of foreign travel, and the identity of family members. The results of these threat assessments and the information that was collected generally were reported in communications to FBI Headquarters and uploaded into FBI databases. The FBI ?3 collection of U.S. person information in this manner is ongoing under the FISA~authorized bulk meta data collection. To the extent leads derived from this program generate results similar to those under Stellar Wind, the FBI will continue to collect and retain a signi?cant amount of information about individuals in the United States, including U.S. persons, that do'not have a nexus to terrorism or represent a threat to national I I project, the Justice We recommend that as part of the Department?s National Security Division (NSD), working with the FBI, shOuld collect .infoi'mation about the quantity of telephone numbers and e-mail addresses disseminated to FBI ?eld of?ces that are assigned as Action leads and that reqtrire of?ces to conduct threat assessments. The information compiled should include whether individuals identi?ed in threat aSsessments are U.S. or non-U.S. persons and whether the threat assessments led to the opening of preliminaij,r or full national security investigations.- With reapect to threat assessments that conclude that users of tipped telephonenumbers or e-mail addresses are not inVolved in terrorism and are-not threats to national Security, the JustiCe Department should take steps to track the quantity and nature of the U.S. person information collected and how the FBI retains and-utilizes this information. This will enable the Justice Department and entities with oversight responsibilities, including the OIG and congressional committees, to assess theimpact this intelligence program has on the privacy interests of U.S. persons and to consider whether, and for how long, such information should be retained. W) We also recommend that, consistent with current oversight activities and as part of its periodic reviews of national security investigations at FBI He . and ?eld of?ces, NSD should review a ropresentative sampling 3 .- - leads to those offices. For each lead examined, NSD should assess FBI compliance with applicable legal requirements in the use of the lead and in any ensuing investigations, particularly with the requirements governing the collection and use of US. person information. ,1 ,1 0F ln sum, we agree that it is dif?cult to assess or quantify the effectiveness of a particular intelligence program. However, based on the interviews we conducted and documents we reviewed, we found that Stellar Wind information generally played a limited role in the counterterrorism efforts, but that the information had value in some cases. In addition, some witnesses said the program provides an ?early warning system? to allow the Intelligence Community to detect potential terrorist attacks, even if the system has not speci?cally uncovered evidence of preparations for such an attack, Moreover, other OIGs in the Intelligence Community are reviewing their agency?s involvement with the program and the results of those reviews, analyzed together, will provide a more comprehensive "picture of the program?s overall usefulness. Finally, because the bulk meta data aspect of the Stellar Wind program continues under FISA authority, we recommend that the NSD take steps to gather information on the continuing operations of the program, including the use and handling of vast amounts of information on US. persons and the effectiveness of the program in FBI counterterrorism investigations. APPROVED FOR PGBLIC RELEASE ?EmEm?; javmm m; . 33,kiwi sash? - -: APPROVED FOR PUBLIC RELEASE CHAPTER SEVEN DISCOVERY ISSUES RELATED TO STELLAR WIND INFORMATION In this chapter we discuss the government?s statutory and judicial discovery obligations in international terrorism cases relating to Stellar Wind?derived information. Under the Stellar Wind program, the federal government collected vast amounts of information, including the content of communications and meta data about telephone and e-mail communications involvin US. citizens and no?U.S. citiens. potentially triggering an obligation under the Federal Rules Of Criminal Procedure and applicable case law for the government to disclose certain information to the defendant. This obligation created a tension between the need to protect the secrecy of the Stellar Wind program and the need to comply with legal disclosure requirements. I In this Chapter, We examine the process by which the Department of Justice attempted to resolve this tension and meet its discovery obligations to criminal defendants.403 (U) 1. Relevant Law (U) The government?s obligation to disclose] certain statements made by a defendant and to disclose other information concerning a defendant in a criminal proceeding comes primarily from two sources: Federal Rule of Criminal Procedure _16 and the US. Stipr'eme Court case of Brady Maryland, 373 U.S. 83 (1963). (U) Federal Rule of Criminal Procedure requires the government to make various disclosures at the reqtiest of a criminal defendant. Among other things, the government must disclose ?any relevant written or recorded statement by the defendant if the statement is Within the. government?s possession, custody, or control; and the attorney for the government knows - or through due diligence could know - that the statement Rule provides that, upon a defendant?s request, the government must allow a defendant to inspect and copy papers, 403 In our review, we did not seek to determine what the government-disclosed in Speci?c cases. Rather, we focused on the adequacy of the process that the Justice Department'implemented to comply with its discovery obligations cases that involved Stellar Wind?derived information. APPROVED FOR PUBLIC RELEASE documents, data, and other materials ?if the item is within the government?s possession, custody, or control? and the item is material to preparing the defense; the government intends to use the item in its case~in?chief at trial; or the item was obtained from or belongs to the defendant. (U) Under Rule 16, a defendant?s statements carry a ?near presumption of relevance,? and ?the produCtion of a defendant?s statements has become ?practically a matter of right. even Without a showing of materiality. United States U. Yunis, 867 F.2d 617, 621?22, 625 83 n.10 (DC. Circuit (U) Disclosure of a defendant?s statements is usually made by the government after receiving a request pursuant to Rule 16. However, even without making a Rule 16 request, a defendant has an independent right to discovery of his statements and certain other relevant information under Brady 1). Maryland, 373 US. 83 (1963). Brady requires the government to disclose evidence in its possession faVOrable to the defendant and material to either guilt or punishment. Material evidence must be disclosed if it is exculpatory or if it could be used to impeach a government Witness. (U) According to an Of?ce bf Intelligence Policyand Review (OIPR) memorandum on the oVernnt?s'l- a a - . However, according to the memorandum, when production of the defendant?s statements or other information would reveal classi?ed information, the government may assert a privilege", sometimes knovtn as the state secrets privilege?w If the government asserts a colorable Claim in a legal proceeding that classi?ed information is privileged, the defendant must Show that the. information is not only 404 See also United States v. Searpa, 913 F.2d 993, 1011 (2nd Cir. 1990), citing United States v. McElroy, 69?? F.2d 459,- 464 Cir. 16 does not cover oral statements unrelated to the crime charged or completer separate from the government?s triai evidence?). (U) 405 Counsel for Intelligence Policy James Baker told us the memorandum was drafted at his request by an Assistant US. Attorney who had been detailed to OIPR. Baker said he requested the memorandum .to refresh his understanding. of the government?s - discovery'obligations in criminal presecutions. ??95 The statesecrets privilege is a common law doctrine asserted by theUnited States government to protect classi?ed-information. See generally,- United States v. Reynolds, 345 (1952). (U) 3 I APPROVED FOR PUBLIC RELEASE use relevant but material. If the defendant can show materiality, some courts balance the defendant?s need for disclosure against the government?s substantial interest in protecting sources and methods associated with the sensitive information. See United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988); United States v. Smith, 781 F.2d 1102, 1180 (4th Cir. 1985) (en bane). (U) The government can also invoke the Classi?ed Information Procedures Act (CIPA), 18 U.S.C. App. 3, to protect classi?ed information in federal prosecutions. CIPA does not expand or limit a defendant?s right to discovery under Rule 16;. rather, CIPA allows a court, ?upon a suf?cient showing? to authorize the government to delete speci?ed items of classi?ed information from otherwise discoverable documents, substitute a summary of the information, or stipulate to relevant facts that the classi?ed information would tend to prove. (U) As detailed below, after aspects of the Stellar Wind program were disclosed in The New York Times and con?rmed by the President in December 2005, the Justice Department invoked CIPA to prevent diSclosure of the program and an - ro ram-derived information i criminal cases WW 11. Cases Raise Questions about Government?s Compliance with Discovery Obligations (U) The tension between the highly classi?ed natureof the Stellar Wind program and the to in Cricases overnment? discove obli information collected under Stellar Wind would be discoverable and, more generally, how the Stellar Wind collections might be treated in View of the government?s discovery obligations in criminal prosecutions. (WW Baker said he raised these issues with Attorney General Ashcroft, FBI Director Mueller, and other Justice Department, FBI, and SA of?cials. Baker state at a determination should first be made whether theWobtained through Stellar Wind also were captured through FISA and therefore could be produced. Baker said it turned 011t? had been intercepted under FISA and could be produced under that authority rather than as a result of Stellar Wind collections. Baker told the 01G that he was relieved by this outcome, but continued to be concerned about future cases. APPROVED FOR PUBLIC RELEASE YQO orally reccmmended to Ashcroft that the Justice-De. artmentnotdisdose the Stallar Wind program intercepts to the ?You subsequently .memOrialized his. adwce-m a. APPROVED FOR PUBLIC RELEASE APPROVED FOR PUBLIC RELEASE ORCON NOFORN 411 At the time You wrote memorandum,-he, Baker, and Ashcroft were the only non-FBI uStice Department _of??ials read into the Stellar Wind program. 413. I- . APPROVED FOR PUBLIC RELEASE In another internal Justice Department review of his actions, Yoo has acknowledged that he is not well versed in criminal law. During an interview With the Department?s Of?ce of Professional Responsibility (CPR) in connection withits investigation concerning his legal opinionsin support of a detainee interrogation program, Yoo stated that ?Criminal prosecution process in the Department was not my Specialty,? and ?criminal law was not my area.?415 111. Criminal Division Examines DiScovery Issues (U) Following the Justice Department?s Criminal Division was tasked with developing procedures for handling Rule 16 disclosure issues because the isSu?es fell within its area of expertise. As a result, in Patrick Rowan, a senior counsel in the Criminal Division, was read into the program to deal with Stellar Wind-related discovery iSSUes. Rowan?s supervisor, Criminal Division Assistant Attorney General ChristOpher Wray, was also read into the program at the Same time. 415 The OPRinvestigation concerned a Tap secret compartmented program relating to detainee interrogations: Yoo drafted legal opinions for this program while in th'e'Of?ce of Legal Counsel. Hewev'er, as discussed in ChaptertFour, in contrast with the Stellar Wind pregram at leastfour other OLC attorneys as'Sisted. with drafting the legal mem'oranda. Yoo' was also able to consult with Criminal Division attorneys and the client agency on this . matters - APPROVED FOR PUBLIC RELEASE WW Wray and Rowan were the ?rst Department attorneys with Criminal Division-level responsibility for terrorism prosecutions to be read into the program. Wray told the OIG that after his and Rowan?s read-in, they ?were kind of left on our own.? He said that no one directed him or Rowan to continue studying the Rule 16 issues or the government?s Brady obligations in connection with international terrorism prosecutions, nor did anyone tell them to develop any judgments or opiniOns on the subject. (U) th some point after his read?in he may have read memorandum on the Department?s discovery obligations in -. and he instructed Rowan to review the memorandumiw"lruowa?wtd he was familiar with Yoo?s memorandum, but stated that he could not recall whether the purpose of Yoo?s memorandm as _ut in general the pertinent legal isSues or to document how in particular was to be handled. Rowan told us that he did not recall having any problems with the conclusions Yoo reached. A. The ?Informal Process? for Treating Discovery Issues in International Terrorism Cases (U) During his 01G interview, Rowan described the processes at the Department prior to the December 2005 disclosure of aspects of the Stellar Wind program in The New York Times to address discovery obligations with respect to Stellar Windederived information. He said that the NSA was generally aware of the Justice Department?s international terrorism criminal cases, at least in part due to ongoing Contacts with Patrick Philbin and others in the Department. According to Rowan, the general awareness of the Department?s international terrorism docket? amounted to an ?informal precess? for spotting cases that may present discovery issues. Rowan stated that prosecutors in US. Attorney?s Offices typically would request the SA to perform ?prudential searches? of its databases for any relevant information concerning their prosecutions, including for discovery purposes, although this did not happen in every international terrorism case. Rowan-stated that if the NSA located any responsive but classi?ed information, it would be expected to notify senior Justice Department of?cials with the requisite clearances about the information. Rowan said he was con?dent that if Brady information were known to the NSA, it would be brought to the attention of the Department and steps would have been taken to 'diS'miSs the case or otherWi'se ensure "the program was not disclosed. W) In addition to these routine Communications between Departmtent' prosecutors and the NSA in criminal proSecutions, Rowan described other APPROVED FOR RELEASE measures that were in place to keep Stellar Wind?derived information out of the criminal prosecution process. He stated that the FBI had ?walled off? any evidence it collected from inclusion ases by tipping out Stellar Wind-derived information Under if: I. With a caVeat that the information in the tipper was ?for lead purposes only.? Rowan noted that OIPR also had in place a scrubbing process to delete program?derived information from FISA applications. Rowan expressed con?dence that these mechanisms ensured that no program information was used in international terrorism Finally, Rowan stated that the FBI is ?very quick to get FISAs up,? thereby minimizing the likelihood that the Stellar Wind database would be the sole repository of Brady material. Memorandum Analyzing Discovery Issues Raised by the Stellar Wind Program At. the direction of Assistant Attorney General Wray, Rowan memorialized these discve issues-in a B. consultinocasionally with Wray. Rowan said it was Very dif?cult to work on the matter because of the secrecy surrounding the program and the other demands of 'hisjobfll'? As __disc_'ussed in Chapter 813:, the caveats were intended to eXclude at the outset any Stellar Wind-derived information frOm FISA applic?ations and other-criminal pleadings. The scrubbing'process acts as a second check against including this information in FISA applications. However, neither the caveats nor the scrubbing process relieved the government of its obligations under Brady to disclose evidence in the government?s possession favorable to the defendant and material to either guilt or punishment. 417 The memorandum noted, ?Because there were no additional attorneys within the Criminal Division Who were read into the program (and very few in the Department generally), we havebeen unable to assign work to others or to fully consult with others within the Division.? APPROVED FOR PUBLIC RELEASE Rewanfs' m'emm?andum "also referredto: gUida'nce in the-United States I Attorney?s Manual (USAM), Fer case's in which the Intelligence Community had no actiVe involvement in the criminal inVest'igation, the USAM stated that there are twocircumstances in which the'_prOSecutor must conduct a ?Suitable search? of Intelligence Community ?les: (1) where the prosecutor has ?direct or reliable knoWledge? that the Intelligence Community APPROVED FOR PUBLIC RELEASE possesses potential Brady or other discovery material; or, (2) in the absence of such knowledge, where ?there nonetheless exists any reliable indication suggesting? that the Intelligence Community possesses such material. USAM, Criminal Resources Manual 2052 (2002). The USAM stated that, as a general rule, a prosecutor should not seek access to Intelligence Community ?les unless there is an af?rmative obligation to do so. However, it noted that certain types of cases, including terrorism prosecutions, fall outside this general rule. In such cases, the USAM advised that the prosecutor should conduct a ?prudential search.? Id. WW Rowan wrote that the practice in several sections within the Criminal Division was to ?generally go beyond both the legal obligations outlined [in his memorandum] and the general rule outlined in the USAM, initiating searches out of prudence, rather than a legal obligation.? For instance, Rowan reported that the practice of the Criminal Division?s Counterespionage Section (CES) was to search Intelligence Community ?les in almost every case, even in instances in which the Intelligence Community had no involvementi i cution W420 43? The OIG interviewed Joh . .the National Securit Division in'20 - . are conucte in cases in 1c gence collection concerning the defendant as ?suggested by the facts of the matter.? He added that the searches were requested for a variety of reasons, including for purposes of meeting discovery obligations. Dion said that searches also were requested to determine whether the defendant has a ?relationship?.with an intelligence agency. He noted that CES does not request prudential searches as-a matter of course to avoid making Spurious requests. 4.21 - - Dion said CES was a proponent of the pesition that line prosecutor's 'Withivhdm CBS co?prosecutes cases should have the same knowledge as CES concerning the ?national security equitie?s?-involved in each case. Dion Said this arrangement also alien?s for the AUSA, who is often the prosecutor most familiar with the case and the jurisdictional practices, to review any Intollig'ence Community material for Rule 16 and Brady purposes. Dion acknowledged the limitations to this arrangement conterning strictly Comp'artmented programs such as Stellar Wind, where the NBA-understandably wOuId be reluctant to read in line prosecutors for the limited purpose of screening defense discovery requests._ APPROVED FOR PUBLIC RELEASE was for the CES attorney to use the provisions of CIPA to prevent disclosure of sensitive material. Rowan noted that other sections within the Criminal Division also relied on CIPA to protect Intelligence Community ?les found during searches. T115, although Ro?s memorandum Idit contain for handling discovery reguests in cases involving -Stell_ar?Wind, it identi?ed key a1 iss?es that would have to headdressed as a' an such roosal . . .. . 322 When Roxiran became r?espOHSibIe for coordinating the Department?s. responsesto' de?fenSe discovery requests as a [)6qu Assistant Attemey General in the APPROVED FOR PUBLIC RELEASE C. Office of Legal Counsel and Discovery Issue (U) Shortly before Rowan ?nished his memorandum in Principal Deputy Assistant Attorney General Steve Bradbuly became the acting head of OLC. Bradbury told us that he recalled having some discussion with Rowan about how discovery matters should be handled in connection with the Stellar Wind program. Bradbury said that John Eisenbe'rg, later a Deputy in OLC, also may have discussed the matter with Rowan. Bradbury stated that he did not believe that OLC followed up on Rowan?s request that it continue researching these issues. Eisenberg told us that he discussed the Rule 16 issue with Rowan at some point, but did not recall whether the discussed the Brady issue. He recalled discussing Yoo?sdnemorandum with Rowan and said he believes the Justice Department took the position that the Yoo nd was correct, at least with respect to Yoo?s legal analysis in When we showed Eisenber'g a copy of Rowan?s- memorandum, Eisenberg stated that he had not previously seen it. Eisenberg told us that OLC would not typically be responsible for addreSsing the discovery issues presented in Rowan?s memorandum and that he was not aware of any OLC opinion on the subject other than Yoo?s memorandum. Eisenberg also said he was not aware of any formal pronedures for handling Rule 16 disclosure requests or the government?s af?rmative Brady obligations other than the exports in camera motions practice pursued by the National Security DiviSion, discussed below. CES Chief Dion agreed that OLCwould not be the appropriate entity to review discovery procedures in the context of Stellar Wind, in part because OLC attorneys generally do not have criminal litigation expertise. Dion suggested that if the Department were to develop precedures for. handling discovery of Intelligence Community ?les, it should be dene by the Department?s National Security Division in coordination with United States Attorneys? Of?ces, and it should be binding only on those two entities. Rowan, while generally agreeing with Dion, told the OIG that he believed the OLC appropriately could have analyzed the legal issue of what impact a - The results at these searches were'produce'd tc?the_ courts ex 0 parts, in camera, pursuant APPROVED FOR PUBLIC RELEASE guilty plea would have on the government?s Brady obligations. IV. Hire of the Classified'lnformation Procedures Act (CIPA) to Re'spond to Discovery Requests (U) After publication of The New York Times articles in DeCember 2005,- the Justice Department received numerous discovery requests in connection with international terrorism prosecutions throughout the country. After these articles, additional of?cials in the Criminal Division were read into the Stellar Wind program, including the new Assistant Attorney General Alice Fisher and other senior of?cials, both to assist. with the Criminal Division?s investigation into the leak of information to The New York Times and to handle the discovery requests follo?wing the public con?rmation of the program by the President and other AdminiStration offiCials in December 2005.493 After the National Security Division was created in September 2006, it assumed muCh of the responsibility for handling the reSponses to discovery requests. Typically, the defense motions sought to compel the government to produce information concerning a defendant that had been derived from the ?TerrOrist Surveillance Program,? the term sometimes used by the government to refer to What the President con?rmed after publication of The New York Times articles. The government responded to the discovery requests by ?ling ex pqrte in camera responses requesting to ?delete items? from material to'be produced in discOvery pUrsuant to In the following sections we provide a brief overview of CIPA and its uSe in international terrorism cases potentially involving Stellar Wind?derived intelligence. APPROVED FOR PUBLIC RELEASE A. of ores. (U) The Classi?ed Information Procedures Act, 1.8 U.S.C. App. 3, was enacted in 1980 to provide procedures for protecting classi?ed information in federal criminal prosecutions; When a party to a criminal proceeding notifies the court that classi?ed information will be used in the course of the proceeding, CIPA requires the court to initiate procedures to ?determine the use, relevance, or admissibility of the classified information. that whuld otherwise he made during the trial or pretrial proceeding.? 18 U.S.C. App. 3 Where the government holds the classified information, it may bring the matter before the court ex parts, but it also must provide notice to the defense that classified information is at issue. Id. at (U) Protective procedures generally are established through a CIPA hearing with both parties present. The hearing may he conducted in camera if the goVernment certi?es that an in camera hearing is necessary to protect the classified information. Id. at Typically, the government seeks an order to protect against the disclosure of any classified-information to. the defense. The government may also seek to withhold production of the classi?ed information in one of three ways: (it) deletion of the classified items from thematerial distilosed to the defendant, (2) summarization of the classified information, or (3) admission of certain facts that the classified information would tend to prove. Id. at 4. Based on the renew of CIPA ?lings related to the Stellar Wind program, the. government has only used option 1 (deleting classi?ed items from material to he discloSecl to the defendant) in response to defense'motions for Stellar Wind information. To prevent the disclosure of classified information, the government may make an ex parte showing to the court. To do so the government must submit ?an affidavit of the Attorney General certifying that disclosure of classified information would cause identi?able damage to the national security of the United States and explaining the basis for the classi?cation of such information.? id. at If the court decides that the defendant?s right to assess to the evidence outweighs the government?s national security interests, the gorernment can choose to dismiss the indictment rather than make. a disclosure. United States U. Moussaoui, 382 F.8d 453, 466 n. 18, 474~76 (weir. '2o04). (U) B. Use at CEPA in International Terrorism Proseeations Alleged to Involve Stellar Windu?erised information 4., We. reviewed the CIPA pleadings files maintained in the-National security'Division relating to the "mama every instanceme' BEA-litigation was handled by the National APPROVED FOR PUBLIC RELEASE Without the involvement of the line prosecutors in the US. Attorney?s Of?ces who handled the underlying prosecutions but who were not read into the Stellar Wind program. . Rewa'n, who became the National Security Division Acting Assistant Attorney General in April 2008 and was con?rmed as th' AssiStant Attorney General in September 2008, told us that The scope and nature of the defense motions initiating the CIPA litigation varied, depending on the procedural posture of the case. For instance, some defense motions sought to compel discovery of NBA surveillance. informatiOn, while others sought to suppress all government evidence and, in the-alternative, have the government?s case dismissed on the theory that illegaleleetronic surveillance.? caused the overnmen't to ation in the ?rstt-insance. Regardless .of the varying procedural pesture of the cases and the scepe and nature of the. defense'motions, the government responses we examined were fairly uniform, consisting of a motion to delete items from discovery, a legal memorandum in sUpport of the motion, declarations from senior FBI and'NSA of?cials, and a proposed order. The government?s CIPA submissions asserted that the information at - issue inth'e- discoverylitigation was classi?ed and subject to the national - security privil di?edi inClPA. They generally described-the types of . IV I . . egeasco ll?v-?g-Iil APPROVED FOR PUBLIC RELEASE APPROVED FOR PUBLIC RELEASE 425 The government?s responses we reviewed uniformly stated that information in the intelligence reports had not been or would not be used as evidence, and that there was no causal connection between the information in the reports and any evidence used or to be used at trial, or was too attenuated from the evidence to be discoverable. The government argued that because the facts concerning the reporting would not aid the defense, the court need not explore the sources and methods used to acquire the information. The submissions also argued that the information cellected by the NSA was not ineluded in the government?s FISA application, and therefore was too attenuated from the trial evidence to merit a review of the means by which the intelligence information was gathered. The government asserted that the-?causal connection? between discovery of the derivative evidence and the alleged illegal search ?may have become so attenuated-as to dissipate the It is important to note th overnment did not ar: C. Government Arguments in Speci?c.Cases (U) In this section we describe-cases that illustrate the arguments made by the government CIPA litigation with respect to defendant?s requests for discovery of Stellar Wind-derived information. 425 in several instances, the Stellar Wind information was disseminated within the FBI after the FBI already had obtained a FISA order to conduct electronic surveillance of the defendant, thus allowing the government to argue that the Sit-reporting played no role in its acquisition of the evidence used or planned to be used against the defendant. "29 Nardone v._United States, 308 US. 338, 341 (1939). The government also argued in its submissions that suppreSSing its evidence would not serve any deterrence purpose; The'gmernmen't argued that the NBA vatIires,'pr0cesses, and disseminates intelligence not to produce criminal proSecutions, but to protect the national security. It asserted that any suppression of evidence would therefore frustrate a criminal proseCution "and create an incentive for the intelligence community not to share information with law enforcement, thereby harming national seturit'y. APPROVED FOR PUBLIC RELEASE APPROVED FOR PUBLIC RELEASE APPROVED FOR PUBLIC RELEASE APPROVED FOR PUBLIC RELEASE APPROVED FOR PUBLIC RELEASE APPROVED FOR PUBLIC RELEASE v. ore ANALYSIS (II) We found that the Department made little effort to understand and comply With its discovery obligations in connection with Stellar Windwderive'd information for- the ?rst several-years of the program. The Department?s limited initial effort was also hampered by the limited number of attorneys who were read into the program. As a result, OLC attorney John Yoo alone initially analyzed the government?s .discOver?y obligations in one early case, and he produced a- legal analysis that was" based on an incorreCt- understanding of the more of the case to which it applied. When other attorneys from read into the roram a, t, Department eventually took steps to address its discovery obligations. Hewever, in our View, those steps are not complete and do not fully ensure that the goVern'ment has .met its discover obligations regarding-information Obtained through the Stellar Wind program. I As described in this chapter, in 2002 the "Department ?rst recognized thatthe Stellar Wind program could have implications for discovery obligations in terrorism cases. OIPR Counsel Baker raised with Department APPROVED FOR PUBLIC RELEASE and FBI. of?cials the question of how the government would meet its discovery obligations regarding Stellar Wind information. Despite awareness of this issue, the Department took no action at this time to ensure that it was in compliance with Rule 16 or Brady with .respect to Stellar Wind?derived information. We believe that at this point senior Department of?cials were on notice that, at a minimum, the discove merited attention. Hor cncrete action was taken until earl? in the: context of . when the Department had to address how to handle Stellar Wind information that was not also obtained under FISA and that could be material was assigned to Yoo, who concluded As with Other aspects or the Stellar Wind program, we believe the errOr in Yoo?s legal analysis may have resulted in part from the failure to subject his memorandum to typical OLC and Department review and scrutiny. BeCause other Departmentattorneys were not read into the StellarWindprogram, the risk that the Department would produce a factually flawed and inadequate legal analysis of these important discovery issues'was escalated. As we concluded in Chapters Three and Four, we believe the lack of suf?cient legal resci'Jrces at the Department during this early phase of the Stellar Wind program hampered its legal anal sis of important issues related to the program. We believe that Yoo?sh memorandum is one more manifestation of this problem. ?st-1W In July 2004, Patrick Rowan, a Senior counselin the Criminal Division, was read into the program and conducted a more systemic analeSiS ofthe DeAPPROVED FOR PUBLIC RELEASE With his memorandum, .Roivan initiated?a request ht the issu be furthe examined by OLC. other than in informal discussions with Rowan concerning Yoo?s?memorandum, OLC did not further examine these issues or follow up on Rowan?s recommendation. While we recognize that OLC was not responsible for developing litigative strategy on this issue, we believe that OLC or another appropriate Department component sh0uld have provided guidance on this important legal issue. 498/ 91/ FL We recommend that the Department conduct a Com rehensive 1e a1. assessment of the importa that still remain unresolve the legal rami?cations of a guilty plea on the government?s disclosure obligations under Rule 16 and in particular Brady. We believe the Department should carefully consider whether it must re-examine past cases to see Whether potentially discoverable but undisclosed Rule 16 or Brady material was collected by the NSA, and take appropriate steps to ensure that-it has complied with its discovery obligations in such cases._ However, the-Department?s handling of these motions did not require the Department to identify the potentially discoverable information derived under the Stellar Wind program that may exist in other cases. We recommend that the Department, in coordination with the NSA, develop and implement a procedure for identifying Stellar Wind?derived information that may be associated with international terrorism cases, currently pending or likely to be brought in the future, and to evaluate such information in light of the government?s discovery obligations under Rule 16 and Brady. APPROVED FOR PUBLIC RELEASE APPROVED FOR PUBLIC RELEASE CHAPTER EIGHT PUBLIC sraremen'rs aeoor THE PROGRAM (U) - This chapter examines Attorney General Alberto Gonzales?s testimony and public statements related to the Stellar Wind program. Aspects of this program were first disclosed publicly in a series of articles in The New York Times inDecember 2005. In response, the President publicly confirmed a portion of the Stellar Wind program. the interception of the content of international communications of - people reasonably believed to have links to al Qaeda and related organizations. Subsequently, Attorney General Gonzales was questioned about the program in two hearings before the Senate Judiciary Committee in February 2006 and July 2007. In bet-ween those two hearings, former Deputy Attorney General James Corney testified before the Senate Judiciary Committee about the dispute between the Department and the White House concerning the program. Gonzales?s and Comey?s differing congressional testimony led to allegations that Gonzales had made misleading statements to Congress about the dispute and the program itself/t34 (U) In this chapter, "We examine Whether Attorney General Gonzales made false, inaccurate, or misleading statements related to the Stellar Wind program: #3391219) I. Summary of the Dispute about the Program (U) As described in detail in. Chapters Three and Four, the Stellar Wind program is best understood as consisting of three types of collections, informally referred to as "?baSkets.? Basket 1 related to the collection of e?mail and telephone content. Initially, the Stellar Wind program collected e-?maii and telephone content when probable cause existed to believe one of the parties to the call or e-mail was outside the United States and at least one of the communieante was a member of an international terrorist group. 434 For example, Senator Arlen Specter stated at a Senate. hearing on July 24, 2007, that he. did not. ?nd Attorney General Gonzales?s testimony to be credible and suggested to I the Attorney General that he ?review this transcript very, very carefully? After this hearing Senate Judiciary Committee Chairman Patrick Leahy sent a letter to the GIG, dated August 16? 2007, asking the'OlG to reView Gonzales?e statements to determine whether they were intentionaliyfaise, misleading, or inappropriate. Gonzales tiesti?ed severai. name before the Senate and House Judiciary "and Intelligence Committees about the program, In this chapter, We focus on his February 2006 and July 2007 teatimony in which he discussed the events of March'QOOiiAPPROVED FOR PUBLIC RELEASE Basket 2 involved bulk collection of telephony meta data, and basket 3 involved bulk collection of e?mail meta data. These collections were authorized by a Presidential Authorization that was re-issued at approximately 30 to 45?day intervals. Each Authorization was certi?ed as to form and legality by the Attorney General. The Attorney General?s certi?cations were initially supported by legal opinions from OLC attorney John Yoo af?rming the legality of the program. (333W) As discussed in Chapter Four, after Jack Goldsmith was con?rmed as Assistant Attorney General for OLC in October 2003, he, along with Associate Deputy Attorney General Patrick Philbin, conducted an analysis of the legal basis underlying each basket in the Stellar Wind program. As a result of this review, he, Philbin, and recently con?rmed Deputy Attorney General Conley concluded that the Could ?nd no le . al 5 oft severa aspects-0f the existing _ro ram, - In early March 2004, the dispute between the Department and the White House Over the Department?s revised legal analysis of the Stellar Wind program'came to a head. Deputy Attorney General Conley, who assumed the duties of the Attorney Generalwhen Attorney General Ashcroft was hospitalized, informed the White House that the? Department could not recertify the pregram. This'dis'pute culminated in the unsuccessful attempt by then-White HouSe Counsel GonZales and White House Chief of Staff Andrew Card to' get Attorney General Ashcroft to overrule Comey and .recertify the..pr0gran1 'while he was in the hespital. When Ashcroft refused to certify the program and said that Corney was acting as theAttorney General,- nothimi the President the. APPROVED FOR PUBLIC RELEASE Attorney General?s certi?cation. Instead Gonzales, as White House Counsel, recerti?ed the program. After the actions to continue the program without Justice Department certification, Deputy Attorney General Comey, FBI Director Mneller, and many other senior Department of?cials considered resigning. When the President learned of this, he directed that the Department work with other involved agencies and the White ouse to l. 39. I '1 lae II. The New York Times Articles and President Bush?s Con?rmation Regarding NSA Activities (U) In 2004, aspects of the Stellar Wind program were disclosed to two reporters for The New York Times, The reporters, James Risen and Eric sought to publish an article about the program in late 2004. Hewever', after a series of meetings with Administration of?cials who argued that publicationof the story would harm the national security, The New York Times agreed to delay publishing the The New York Times eventually published a series of articles about the program on December 16 through 19, 2005. According to one of the reporters, the Times decided to publish the articles at least in part because the newspaper learned of serious cencerns about the legality of the program that had ?reached the highest levels of the Bush Administration.?435 (U) The ?rst article, on December 16, 2005, was entitled, ?Bush Lets U.S. Spy on Callers Without Courts.? This article stated that ?Months after the Sept. 1 attacks, President Bush seere'tly authorized the National Security Agency to .eavesdrop on Americans and others inside the United States to search for evidence of terrorist actii'rity without the court?approved warrants ordinarily-required for domestic spying, according to government of?cials.? The article described in broad terms the content collection aspect of the SA program (basket 1), stating that according to of?cials the NSA has ?monitored the international telephone calls of hundreds, perhaps 435 see Eric Bush?s Ldu} {2008), 203. (U) APPROVED FOR PUBLIC RELEASE thousands, of people inside the United States without warrants over the past three years in an effort to track possible ?dirty numbers? linked to al Qaeda,? The article stated that the NSA continued to seek warrants to monitor purely domestic communicatignsk - . . .. .. . The article asserted that ?reservations about aspects of the program? had also been expressed by Senator Jay Rockefeller (the Vice Chair of the Senate Select Committee on Intelligence) and a judge who presided over the FISA Court. The article added, ?Some of the questions about the new powers led the administration to temperarily suspend. the operation last year and impose more restrictions, officials said.? The article also stated that ?in mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it.? However, the article incorrectly tied this suspension of the program to Judge Colleen Kollaerotelly?s concerns that information gained from the program was also being used to seek. PISA orders, rather than to the March 2004 dispute between Department officials and the White House about the legality of aspects of the program. On December 17?, 2005, the day after The New York Times published the first article, President Bush publicly acknowledged the portion of the NSA program that was described in the article. President Bush described in broad terms these NSA electronic surveillance activities, stating: In the Weeks following the terrorist attacks on our nation, 1 authorized the. National Security Agency, consistent with US. law and the Constihrtion, to intercept the international communications of people with known? links to al Qaeda and related terrorist organisations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks. This is a highly classi?ed program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies.- Yesterday the existence of this secret program was revealed in media reports, after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country . The aCiiViti?$I authorized are reviewed. approximater may 45. days. Each review is based on a fresh intelligence assessment of awe: Wests the. Cent-isms of Der easement and-the .. threat of catastrophic damage to our homeland. During each. assessment, previous activities under the authorization are reviewed. The review includes approval by our nation?s top legal officials, including the Attorney General and the Counsel. to the President. I have reauthorized the program more than 30 times since the September 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related (U) 111, Other Administration Statements (II) On January 19, 2006, the Justice Department issued a document, informally referred to as a ?White Paper,? entitled ?Legal Authorities Supporting the Activities of the National Security Agency Described by the President.? The 42-page document addressed in an. unclassified form the legal basis for the-collection activities that were described in the December 16, 2005, New York Times article arid other media reports and con?rmed by President Bush. The White Paper stated that the President acknowledged that ?he has authorized the NSA to intercept international communications into and out of the United States of persons linked to al Qaeda or other related terrorist organizations.? (U) The White Paper reiterated the legal theory advanced by the Department in Goldsmith?s May 2004 memorandum about the revised NSA program, Which concluded that the September 18, 2001, Congressional Authorization for the Use of Military Force authorized the President to employ ?Warrantless communications intelligence targeted at the enemy,? a fundamental incident of the use of military'force, pursuant to the President?s Article II Commandenin?Chief powers. The White Paper also argued that the activities were consistent with FISA, as confirmed and supplemented by the AUMF. On January 22, 2005, the White House also issued a press release and memorandum to counter criticism of the SA program by members of Congress. The press release was entitled ?Setting the Record Straight: Democrats Continue to Attack the Terrorist Surveillance Program.? This document was the first time we found any official use of the term ?Terrorist Surveillance Program? to apply to the SA program or aspects of the program?i"? 435. The full text of President Bush?s December 17, 2005, radio address can be found at http: [harm?whitehousagOV/news/ releases] 2005 12 print 2005 .12 l7.htmi. (U) 437 See We found that the term was used. in the media prior to this time. The first published reference (Cont?d.) .. .. .. FOR PUBLIC RELEASE The following day, on January ?23, 2006, President Bush referred to the ?terrorist surveillance program? during a speech at Kansas State University: Let me tall: about one other program . . something that you?ve been reading about in the news lately. It?s what I would call a terrorist surveillance program. (U) In the speech, President Bush described the program as the interception ?of certain communications emanating between somebody inside the United States and outside the United States; and one of the numbers would be reasonably suspected to be an al Qaeda link or affiliate.? (U) 011 January 24, 2006, Attorney General Gonzales delivered a speech at the Georgetown University Law Center which, according to his prepared remarks, began by stating that his remarks ?speak only to those activities confirmed publicly by the President, and not to activities described in press reports.? Gonzales referred to the program throughout his speech as either the ?terrorist surveillance program? or ?the terrorist surveillance program.? (U) IV. Testimony and miller Statements (U) After the New York Times articles disclosed aspects of the NSA program, members of Congress expressed concerni'that the President had exceeded his authority by authorizing electronic surveillance activity without FISA orders, and congressional hearings were held on the issue. Gone-ales testified before the Senate Judiciary Committee on February 6, 2006, and July 24, 2007, about the surveillance activities. We describe in the next sections his testimony and other statements he made about the activities, as well as testimony by former Deputy Attorney General Carney before the Senate Judiciary Committee on May 15, 2007. we found to the ?terrorist surveillance program" in connection with the NSA electronic sumeillance activities was in News'Max, an online news website, on December 22, 2005. (U) See ?Barbara Boxer: Bush Spy Hearings Refers Alito,? Nee-sideshow; Desember 22,- 2005; On January 20, 2006, the term appeared again on another Internet blog called ?RedState?? See ?Making the - case for the NSA terrorist program,? at /0977.' (U) APPROVED FOR PUBLIC RELEASE A. Gonzales?s February 6, 2636, Senate Judiciary Committee Testimony (U) In his opening statement before the Senate Judiciary Committee on February 6, 2006, Gonzales began by saying that his testimony would necessarily be limited: Before going any further, I should make clear What I can di3cuss today. I am here to explain the Department?s assessment that the President?s terrorist surVeillance program is consistent with our laws and ConstitutiOn. I am not here to discoss the operational details of that program, or any other classified activity. The President has described the terrorist surveillance program in response to certain leaks, and my discussion in this open forum must be limited to those facts the President has publicly con?rmed nothing more. Many operational details of our intelligence activities remain classified and unknown to our enemy and it is vital that they remain so, (U) The questioning of Gonzales at this hearing focused primarily on the nature of the NSA surveillance activity and the legal basis for it?38 Senator Charles asked Gonzales speci?cally about accounts of a disagreement within the Justice Department over the SA programz. SEN. SCHUMER: But it?s not just Repliblican senators who seriously question the SA program, but very high?ranking officials within the administration itself. Now, you?ve already "acknowledged that {here were lawyers in the administration who expressed reservations about the NSA program. There-Was dissent Is that right? ATTY GEN. GONZALES: Of course, Senator. As I indicated, this program implicates very dif?cult issues. The war on terror has generated several issues that are very, very complicated. SEN. SCHUMER: Understood. ATT-Y GEN. GONZALES: Lawyers disagree. 433 geither theChairman of the Senatedudiciary Committee at the time (Senator Specter), nor the Ranking Member (Senator Leahy), wore read into-{he program or provided the underlying documents-authorizing the program? Senator Lea'hy stated at the outset of - ?the hearing that he and others had made a requEst to review the Presidential Authorizations and OLC memoranda abousthe program, but that-these materials had not been provided-to the Icommittee. APPROVED FOR PUBLIC RELEASE SEN. SCHUMER: I concede all those points. Let me ask you about some specific reports. It?s been reported by multiple news Outlets that the former number two man in the Justice Department, the premier terrorism prosecutor, Jim Conley, expressed grave reservations about the SA program, and at least once refused to give it his blessing. Is that true? ATTY GEN. GONZALES: Senator, here?s a response that I feel thatl can give with respect to recent speculation or stories about disagreements. There has not been any serious disagreement, including and I think this is accurate there?s not been any serious disagreement about the program that the President has con?rmed. There have been disagreements about other matters regarding operations, which I cannot get into. I will also say SEN. SCHUMER: But there was some I?m sorry to out you off. But there was some diesent Within the administration, and Jim Corney did express at some point that?s all I asked you some reservation. ATTY GEN. GONZALES: The point} want to make is that, to my knowledge, none of the reservations dealt with the program that we?re talking about today. They dealt with operational capabilities that we?re not talking about today. SEN. SCHUMER: I want to ask you again about - I?m just we havelimited time. ATTY GEN. GONZALES: Yes, sir. SEN. SCHUMER: It?s also been reported that the head of the Office of Legal Counsel, Jack Goldsmith, a respected lawyer and professor at Harvard Law School, expressed reservations about the program. Is that true? ATTY GEN . GONZALES: Senator, rather than going individual by individual SEN. SCHUMER: No, I think we?re this is ATTY GEN. GONZALES: let me just say that I think differing views that have been the subject of some of these stories does not did not deal with the program that I?m here testifying about today". SEN. SCHUMER: But you are telling us that none of these people expressed any reservations about the ultimate program. APPROVED FOR RELEASE m; .- v; s. ATTY GEN. GONZALES: Senator, I want to be very careful here, because, of course, i?m here only testifying about what the President has confirmed. And with respect to What the President has confirmed, i believe - i do not believe that these DOJ of?cials that you?re identifying had concerns about this program. (U) Throughout the hearing, other Senators asked Gonzales questions relating to various aspects of the NSA program, and Gonzales would often qualify his answers by stating that he was not discussing activities beyond What the President had con?rmed. However, in doing so Gonzales sometimes suggested that the activities under the program. were limited to What the President had confirmed. in one. exchange with Senator Leahy, for example, Gonzales-suggested that the electronic surveillance activities the President had publicly confirmed were the only activities the President had authorized to be conducted. Specifically, in response to a series of. questions from Senator Leahy regarding What activities beyond warrantless electronic surveillance Gonzales would deem legal under the Authorization for the Use of Military Force, Gonzales stated, Sir, I have-tried to outline for you and the committee What the President has authorized, and that is all that he has antherized. . . . There is all kinds of Wild speculation out there about What the President has authorized and what we?re actually doing. And l'm not going to get. into a discussion, Senator, about 439 On February 28, 2006, Gonzales wrote to Senator Specter to provide additional responses to questions that he had answered during his February 6 hearing and to clarify certain responses. Gonzales Wrote that he confined his letter and testimony to the spetiific NSA activities that have been publicly con?rmed by the President. Those activities involve the interception by the NSA of the contents of communications-inwhieh oneparty is outside the United States where there. are reasonable grounds to believethat at least one party to the communication is a member or agent of al Qaeda or an affiliated terrorist organization (hereinafter, the ?Terrorist Program?). One response Gonzaies sought to clarify was this response to Senator Leahy. Gonzales Wrote: First, as I emphasized in my opening statement, in all of my testimony at the hearing i addressed limited exceptions only the legal underpinnings . of the Terrorist SurveilianceProgram, as de?ned above. .1 did not. and could . . not address operational aspects of the Program or any other classi?ed inteliigence aetivities; So, for example, when I testified in response to . .quee'tioesfromScimitar. Lhasa tried to. outline for You and the Committee what the President hasauthorized, and that is-all that he has. authorized,? Tr. at 53, i' was Con?ning my remarks to the Terrorist APPROVED FOR PUBLIC RELEASE In response to Senator Sarn Brownbaok?s question about whether the FISA application process would include ?even these sort of operations we've read about data mining operations? Would that include those "sorts of operations, or are those totally a separate type of ?eld?? (U) Gonzales responded: I?m not here to talk about that. Again, let me just caution everyone that you need to read these stories with caution, There is a lot of mumbling - I mean, mixing and mangling of activities that are "totally unrelated to what the President has authorized Under the terrorist surveillance program, and so I?m uncomfortable talking about other kinds of operations that might that are unrelated to the terrorist surveillance program. (U) B. Comey?s May 15, 2067, Senate Judiciary Committee Testimony (U) Former Deputy Attorney General Comey appeared before the Senate Judiciary Committee on May 15, 2007, in a hearing called to examine whether the Department had politicized the firing of U.S. Attorneys. Senator Schumer, who presided over the hearing, began the questioning by asking Corney about reports in the media that in March 2004 White House Counsel Gonzales and White House Chief of Staff Card had visited Attorney General Ashcroft in the hospital in an effort to override Comey?s decision, made "when he served as Acting Attorney General, not to certify a classified program, Corney was asked to recount the details of the incident. (U) After prefacing his remarks by stating that he could not discuss classi?ed information, Conley described the events of March 2004, including the confrontation between the Department and White House of?cials in Ashcroft?s hospital room. In describing these events, Corney referred to a single classi?ed program, For example, Comey testified that: in the early part of 2004, the Department of Justice was engaged the Office of Legal Counsel,- under my supervision, in a reevaluation both factually and legally of a particular Classifiediprogram. And it was a program that was reneWed on a regular basis and required signature by the Attorney General Surveillance Program as described by the President, the legality. of which was the subject of the February 6th hearing. Gonzales also'atternpted to clarii}? a response he had given to Senator Leah}; shout - when the first Presidential Authorization was signed; Gonzales wrote that-?The President- first authorized the-[Terrorist Surveillance] Program in October 2001 4? (U) APPROVED FOR PUBLIC RELEASE certifying to its legality. And the - and I remember the precise date; the program had to be renewed by March the 1 1th, which was a Thursday, of 2004. And We were engaged in a very intensive reevaluation of the matter; (U) Comey also testi?ed that ?as Acting Attorney General, I would not certify the program as to its legality, and explained our reasoning in detail, which I will not go into here, nor am I con?rming it?s any particular program,? As detailed in Chapter Four, Comey then described from his perspective the incident in the hospital room and testified that after that incident ?[t]he program was?reauthorized Without us, Without a signature from the Department of Justice attesting as to its legality . . 3? (U) C. Gonzales?s June 5, 2007, Press Conference (U) In light of Comey?s statements,_ questions were raised about the accuracy of Genzales?s February 2006 testimony to the Senate JudiCiary Committee. For example, in a press conference on June 5, 2007, called to announce the indictment of members of an international gang called the first question a reporter asked Gonzales concerned Comey?s testimony: REPORTER: Attorney General, last month Jim Comey testi?ed about visits you and Andy Card made to John Ashcroft?s hospital bed. Can you tell us your side of the story? Why were you there and did Mr?. Corriey testify truthfully about it? Did he remember it correctly? - ATTY GEN. GONZALES: Mr. Comey?s testimony related to a highly classi?ed program which the President con?rmed to the American people some time ago. Because it?s on a classi?ed program I'm not going to comment on his testimony. (U) As discussed below, when later asked about this statement, Gonzales said that he had misspoke, and that he did. not mean, to say that Comey?s testimony related to the program'that the President con?rmed. (U) D. Gonzales?s July 244, 2007, Senate Judiciary Committee Testimony (U) Gonzales was again called to testify before the Senate Judiciary Committee on July 24, 2007. In advance of Gonzales?s July 24 appearance, Senator Leahy sent Gonzales a letter'advising him of the questions that Would he askednat the hearinthi?i-O The letter referenced? Gonzales?s 449 According to the letter, Senator Leahytook this Step because in Gonzales?s - appearance before the Senate Judiciary Committeeon April 1.9, 2007, to discuss the - remOVai'of nine Attorney's, Gonzales had responded to an estimated 100 questions that (Co?t?d. .. APPROVED FOR PUBLIC RELEASE February 6, 2006, testimony in which he stated that Department officials did not have ?concerns about this program? The letter also. referenced Comey?s May 15 testimony concerningthe incident in Ashcroft?s hospital rosin in March 2004. rl?he letter speci?cally advised GonZaIes that he would be asked to ?provide a full explanation for the legal authorization fer the. President?s warrantless electronic surveillance program in March and April 2004.? (U) At the July 24 hearing, Gonzales__was repeatedly questioned about alleged inconsistencies between his and Comey?s accounts of the events of March 2004 and the NSA program. For example; Senator Specter asked: Let me move quickly through a series of questions there?s a lot to cover starting with the issue that Mr. Comey raises. You said, quote, ?There has not been any serious disagreement aboutithe program.? Mr. Corhey?s testimony was that Mr. Gonzales began-to. disous's Why'they were there to seek approval and he then says, quote, was very upset. I was angry. I thought I had. just Witnessed an effort to take advantage of a very sick man.? First of all; Mr, Attorney General, What credibility is left for you when you say there?s no disagreement andyou?re party to? going to the-hospital to see Attorney General Ashcroft under sedation to try to get him to approve the program? ATTY GEN. GONZALES: The disagreement that occurred and the reason fer the Visit to the hospital, Senator, was aboutother intelligence activities. It 1wasnot about the terrorist surveillance program that the President announced to the American people. (U) At other points in the hearing, Gonzales stated that the dispute referred to ?other intelligence. activities,? and not the ?terrorist surveillance program.? (U) Senator Schumer also questioned Gonzales about his answer in the. June 5 press conferencein which he stated that Corney?s testimony ?related to a highly classified program which the President confirmed to the American people some time-ago.? Gonzales ?rst responded that he would have to look at the question and his response from the press conference, and then he said ?I?m told that what I?d in factw here in the press he could "not recall.? Leahy wrote that he wanted to assist GonZa?ies with his preparation for'the Juiy 24 testimony to ?avoid. a repeat of that performance? (U) APPROVED FOR PUBLIC RELEASE conference did misspeak,. but I also went back and clarified it with the. (U) Gonzales then responded to Senator Sehumer that ?The President Con?rmed the existence of one set of activities,? and that ?Mr. Comey Was talking about a disagreement that existed With respect to other intelligence activities. . . Mr. Comey?s testimony about the. hospital Visit was about other intelligenoe aetiirities; disagreements over other intelligence activities. That?s how-we?d clarify it.? (U) Other Senators questioned Gonzalejs?s respojrlses on this issue. For example, Senator Feiogold stated: With respect to the illegal wiretapping program, last year in hearings before this committee and the House Judiciary Committee, you. stated that, quote, ?There has not been any serious disagreement about the program that the'President has con?rmed,? unquote, that any disagreementthat did occur, quote, ?did not? deal with the program that I am here testifyng about today,? unquote, and that, quote, ?The disagreement that eXist'ed does not relate to the program the President con?rmed in December to the Arnerioan people,? Unquote. (U) Two months ago, you. sent a letter to me and other members of this committee defendingthat testimony and assertingthat it remains accurate; And I believe you said that again today. Now, as you probably how, I?m a member of the Intelligence Committee. And therefore I?m one of the members of this Committee who has been briefed. on the'NSA wiretapping program and other sensitive intelligence programs. I?ve had the opportunity to review the classified mattersat issue here. And I believe that your-testimony was misleading, at best. I am prevented from elaborating in this setting, but I intend to send you a cla'ssifi'ed letter eXplaining Why I have come to that conclusion. (U) Senator Whitehouse, also a'member of the Intelligence Committee, similarly stated: Mr. Gonzales, let me. just follow up brie?y on What Senator Feihgold was saying, because I?m also a member of both committe'esi And I have to tell you, I have the exact same Gonzales also testified that he did not speak directly to the reporter [Dan E-ggen, from the Washington Post) to clarify the comment. Rather, Gonzales said he told a Department spokesperson to go back and clarify the statement to Eggen. (U) APPROVED FOR PUBLIC RELEASE perception that he does, and that is that if there is a kernel of truth-in what you?ve said about the program which we can?t discuss but We'know it to be the program at isSue iny'our hospital visit to the Attorney General, the path to that kernel of truth is so senvoluted and-1's so contrary to the plain import of what you said, that I, really, at this point have no choice. but to believe that you intended to deceive us and to lead us or mislead us away from the dispute that the Deputy Attorney General subsequently brought to our "attentionhe?s behaving, you know, in a crazy way to eventhink this, but at least count tWo of us and take it seriously?? (U). Gonzales also offeredto answer a question about the terrorist surveillance program in closed session during this exchange with Senator Specter: SEN. SPECTER: Going back to the question about your credibility on Whether there'Was dissent Within the administration as to the terroristsurveillance program, was there any distinction between the terrorist surveillance pregram in existence on March. 10th, when you and the Chief 'of Staff went to see Attorney General Ashcroft, contrasted with the terrorist surveillance program which President Bush made public in December {Iii-2005? ATTY. GEN, GONZALES: Senator} this is-a question that I should-answer. in a classified setting, quite frankly, because now you?re asking me to hint or. talk - to hint about. our operational activities; And I?d be happy to answer that question, but in a classi?ed setting. SEN. SPECTER: Well, if you won?t answer that Question, my suggestion to you, Attorney General Gonzales, is that you review this transcript very; very carefully. i do not find your testimony credible, candidly. When I look atthe issue of credibility, it is my judgment that when Mr. Corney was testifying he Was talking about the terrorist suryeillanee program and. that inference arises in a number of Ways, principally because it was such an important matter that led you and the Chief of Staff to Ashcroft-?5 hospital room. . . . So my suggestion to you is that you review your testimony very carefully. The chairman?s already said that the committee?s According to a May 17, 2006, letter from, the Director of National Intelligence, two other members of the Judiciary Committee Senators-Dianne Feinstein and Orrin Hatch also had been briefed on the NSA program. (U) AFPROVED FOR PUBLIC RELEASE . i if going to review your testimony very carefully to see if your credibility has been breached to the point of being actionable. (U) Near the end of the hearing Senator Schumer questioned Gonzales regarding the meeting at the White House with the ?Gang of Eight? congressional leaders, just before Gonzales and. Card went to Ashcroft?s hospital room on March 10, 2004: SEN. SCHUMER: OK. But. you testi?ed to us that you didnt believe there was serious dissent on the program that the President authorized. And now you?re saying they knew of the dissent and. you didn?t? ATTY GEN. GONZALES: The dissent related to other intelligence activities. The dissent was not about the terrorist surveillance program the President continued and . . . SEN. SCHUMER: You said, sir sir, you said that they knew that there was dissent. But when you testified before us, you said there has not been any serious disagreement. And it?s about the same program. It?s about the same exact program. You said the President authorized only one before. And the discussion you see, it defies credulity to belieVe that the diseUssion with Attorney General. Ashcroft or with this group of eight, which we can check on and I hope we will, Mr. Chairman: that will be yours and Senator Specter"s prerogative -- was about nothing other than the TSP. And if it was about the you?re dissembling to this committee. Now was it about the TSP or not, the discussion on the eighth? GEN. GONZALES: The disagreement on the 10th was about other intelligence activities. SEN. SCHUMER: Not about the TSP, yes or no? ATTY GEN. GONZALES: The disagreement and the reason we had to go to the hospital had to do with other intelligence activities. SEN. Not the Come. on. If you say it?s about ?other,? that-implies not. ?Now say it or not. ATTY GEN. GONZALES: It was not. It was about other intelligence activities. SEN. SC-HUMER: Was it about the Yes or no, please? That?s vital to Whether you?re telling the truth to this committee. APPROVED FOR PUBLIC RELEASE ATTY GEN. GONZALES: it was about other intelligence activities. (U) When we intervieWEd Gonzales, he stated that there was never any. intent to hide the NSA program from Congress, and he said that Congress was briefed on multiple Occasions about the programi?43 Gonzales also stated that he could not explain to the Se . ?serious? dispute concerned . . Gonzales said that he could not recall Wherethe term ?terrorist surveillanCe program? originated, but that When he used the term it referred only to the content collection activities the President. had con?rmed publicly, and that the rest of the program remained clasSi?ed. Gonzalesalso asserted that this di?Stinction should have been clear to those on the committee who were read into the Stellar Wind program. E. FBI Director Mueller?s July 26, 2007, House Committee on the Judiciary Testimcny (U) Two days after Gonzales?s July 24, 2007, Senate Judiciary Cemmittee testimony, FBI Director Mueller testi?ed before the House Judiciaiy Committee. At-this hearing, Mueller was asked about his conversation with Attorney General Ashcroft at the hospital on the evening of March 10, 2004. As discussed in Chapter'Four of this report, Mueller arrived at the hospital just alter-Gonzales and Card left. Mueller was asked to recount what he learned from Ashcroft concerning Ashcroft?s exchange with Gonzales and Card earlier that evening: REP. JACKSON LEE: Could Ijust Say, did you have an understanding that the discussion was on MR.- MUELLER: I had an understandingthe discussion was on a a NSA program, yes. REP JACKSON LEE: I guess We use we use warrantless Wiretapping, so would I be comfortable in saying that those were the items that were part of the discussion? 443 Gonzales cited in particular the ?Gang of Eight? brie?ng convened on March 10, 2004, to inform congressional leaders of the Departrnent?s legal concerns about aspects of the program and the need for a legislative We also reviewed Gonzales?s closed-session testimony before the House Permanent Select Committee on Intelligence which he provided on July 19, 2007, just a few days before his July 24 Senate Judiciary Committee testimony. In his classi?ed HPSCI testimony, Gonzales stated, ?This disa reement With Justice Department-of?cials] primarin centered a? MR. MUELLER: I - the discussion was on a natiOnal an NSA program that has been much dismissed, yes. (U) We asked-Mueller about. his understanding of the term ?terrorist surveillance program,? Mueller said that the term was not used by the FBI prior to The New York Times article and the President?s confirmation of one aSpect of the program, Mueller said he understood the term to refer to what the President-publicly con?rmed as to content intercepts. Mueller Said he believed the term was part of the ?oVerarChing? Stellar Wind program, but that is not synonymous with Stellar Wind.444 Gonzales?s Fallow-up Letter to the Senate Judiciary Committee (U) In an effort to clarify his July 24, 2007, Senate testiiriony, on August 1., 2007, Gonzales sent unclassi?ed letters to Judiciary Committee Chairman Leahy and Senator Specter; Gonzales?s letter to Leahy' stated that he was deeply Cenoerned with Suggestions that his testimony was misleading and he was determined to address any such impress-i011. He explained that ?shortly after 9/ l, the President authorized the NSA to undertake a number of highly claSsi?ed activities,? and that, ?although the legal bases for these activities varied, all of them were authorized in One presidential order,'which was reauthorized approxinmtely every 45 days.? Gonzales-wrote that before 2005 ?the term "Terrorist-Surveillance- Program? was not used to refer to these activities, celleotively or otherwise.? RathegGonzales wrote that the term was ?rst used in early "2006 ?as part of the public debate that followed? the unauthorized disclosure [by the New York Times] and the President?s acknowledgement of one aSp'ect of the NSA (U) "44 We also interviewed an NSA official, who Serves as an original classifying authority for the NSA about the use of the 'te ?terrorist surveillance 'APPROVED FOR PUBLIC RELEASE Geneales also Wrote in this letter that in his July 24- testimony he was dismissing ?only that particular aspect of the NSA activities that the President has publicly acknowledged, and that We have. called the Terrorist Surveillance He wrote that he recognized that his use of. this term. or his shorthand reference to the ??program? publicly ?described by the PreSidentm'may have ?created confusion? Gonzales maintained that there was ?not a serious disagreement between the Department and the White House in March 2004 aboutxwhether therewas a legal basis for the particular activity later called the Terrorist Surveillance Program.? (U) Gonzales also wrote in his letter,- ?That is not to say that the legal issues raiSed by the. Terrorist Surveillance Program were insubstantial; it was an cXtraordinsry activity that presented novel and difficult issues and was, as I understand, the subject of intense deliberations Within the Department. In the spring of 2004, after a thorough reexamination of all these activities, Mr. Comey and the Of?ce of Legal Counsel ultimately agreed that the President could direct the NSA to intercept international communications without a court order where the interceptions were targeted at al Qaeda or its affiliates. Other aspects of the activities referenced in the letter [attached to GonZales?s letter) did precipitate very serious disagreement.? (U) V. 01G. Analysis (U) In this section, we assess whether Gonzales made false, inaccurate, or misleading statements during his testimony before the Senate Judiciary Committee, As discussed belbw, we concluded that Gonzales?s testimony did notcOnstitute a false statement under the criminal statutes. We also concluded that he did not intend his testimony to be inaccurate, false, or misleading. Hewever, We fOund in at least two important respects his testimony Was confusing, inaccurate, and had the effect-of misleading those who were not read into the program. (U) At the outset, we recognize that Gonzales was in a difficult position because he was testifying in an open, unclassified forum about a highly classified prOgram. In this setting, it would be difficult for any {witness to clearly explain the nature of the dispute betWeenthe White House and the Department While not discl?dsing additional details about classi?ed activities, particularly because onl},r certain. NSA activities had been publicly con?rmed by the President. (U) However, some of this dif?culty was attributable to the. White House?s decision-not to brief the Judiciary Committee, which had. oversight of the Department of Justice, about the program. As discussed in Chapter Four, the strict controls over the Department?s access to the hindered the APPROVED FOR PUBLIC RELEASE Department?s ability to adequately fulfill its legal responsibilities concerning the program through March 2004. Similarly, the White House?s decision not" to alchr at least the Chair and Ranking Members of the House? and senate Judiciai?y'Committees- to be briefed into the program created difficulties for Gonzales when he testified before Congress about the disputes regarding the program. This limitation. also affected the ability to understand or adequately assess the program; especially in connection with the March 2004 dispute. We agree with Goldsmith?s observation. about the harm in the White House?s ?over-?secrecy? for this program; as well as Director Mueller?s suggestion,-made in March 2004, that briefings on the program-should have been given to the House and Senate Judiciary Committees. This did not occur, and it made Gonzales?s testimony to the Senate Judiciary Committee unusually difficult. Yet, even given-these that Gonzales?s testimony was imprecise, confusing, and likely to lead those not read into the program to draw Wrong conclusions about thenature of the dispute between White House and Department of?cials in Marsh .2004.- In addition, two Senators who had been read into the program stated that they'were confused by Gonzales?s testimony. Although We concluded that Gonzales did not intend to mislead Congress, his testimony nonetheless had the effect of creating confusion and-inaccurate perceptions about certain issues covered during his-hearings. (U) I Gonzales, as a participant in the March 2004 dispute between the White Heuse and the Justice Department and, niore importantly, as the nation?s chief law enforcement officer, had a duty to balance his obligation not to disclose classi?ed information With the need not to be misleading in his testimony about the events that nearly led to mass resignations of senior officials at the Justice Department and the FBI. Instead, Gonzales?s testimony only deepened the confusion among members of Congressand the public matters. we were especially troubledlby Gonzales?s testimony'at the July 2007 Senate hearing because it related to an important matter of signi?cant public interest. and because he had suf?cient time. to prepare for this hearing and the onestions he knew he would be asked. (U) At; the ontset of his testimony on February 6, 2.006, Gonzales explained that he was confining his remarks to the program and the facts that the President publicly con?rmed in his radio address on December 17', 2005. In those remarks, the President had, in essence, con?rmed the APPROVED FOR PUBLIC RELEASE content collection part, or basket 1, of the NSA surveillance programs?-5 The President, and Genzales, used the term ?terrorist surveillance program? in connection with the President?s con?rmation of these NSA activities. However, as discussed below, it was not clear - even to those read into the program whether the term ?terrorist surveillance program? referred only to content collection (basket 1) or the entire program. Nevertheless, Gonzales suggested in his testimony that the dispute between the White House and the Department cencerned other intelligence actiVities that were unrelated to the Content collection portion of the program that the President had con?rmed. This was not accurate. We recognize that the term ?terrorist surveillance program? was intended by Gonzales and other Administration of?cials to describe a limited set of activities "Within the Stellar Wind program and that the term was created only in response to public disclosures about the program. However, by using phrases such as. the ?terrorist surveillance program? or ?the program that the President has con?rmed,? and setting that program apart from ?other intelligence activities,?- Gonzales?stestimony created a perception that the two sets of activities were entirely unrelated, which Was not accurate. Gonzales?s testimony suggested that the dispute that Comey testified about was not related to the program that the President had con?rmed, and instead that the dispute concerned unrelated ?operations? or ?intelligence activities.? Thus, While Gonzales may have intended the term ?terrorist surveillance program? to cover only content collection [basket 1), it 1 - . testi?ed that the dispute was unrelated to ?the. t6 ecu P1 ugi dill. I I Gonzales reinforced this misperception throughout his testimony. For- example, when asked by Senator Leahy What activities Gonzales believed would be supported under the Authorization for Use of Military-Force. rationale, Gonzales stated, have tried to Outline fer you and the committee what the President has authorized, and. that is all that he has authorized.? In fact, the President had authorized two other types of collections in the same Authorization?. Gonzales himself subsequently realized that his response to Senator Leahy was problematic. In a February 28, 2006, letter to Senators Specter and Leahy, Gonzales sought to clarify his response, I APPROVED FOR PUBLIC RELEASE stating, was confining my remarks to the; Terrorist SUrveillance Program as described by the President, the legality 0f Which was the subject of the February 6th hearing.? However, in our View this attempt to clarify his remarks: did not go nearly-far enough. As discussed below, it was not until after Gonzales?s next appearance be?fOre the Senate Judiciary Committee in. July 2007 that Gonzales acknowledged that the President had also authciri'zed a range of intelligence?gathering activities,.including those- described under the terrorist surveillance program, in a single order. We concluded that Gonzales created a misimpression for Congress and the public by sUggesting that the March 2004 disPute between the Department and the White House concerned issues Wholly unrelated to ?the program the President con?rmed,? or the terrorist surveillance program. We believe a fairer and more accurate characterization would have been that the March 2004 dispute concerned aspects of. a larger program'of which the terrorist surveillance program was a part. As discussed earlier, the viewed the. three types of collections as a single program, The three types of collections were all authorized by the same Presidential order and administered by a single intelligence agency. "Moreover, all three collections wereknown in the Intelligence Comniunity by the same Top Secret/ Sensitive Compartmented Information program cover term, Stellar Wind. Inaddition, We believe that Gonzales?s testim'on dis ute between the 'De artrnent andthe White Hous was incomplete and not accurate. When Senator Schumer asked Gonzales at the February 2006 Senate? hearing Whether media accounts that Comey ?expressed grave reservations about the NSAprogram? were true, Gonzales responded that there was no ?serio'us. disagreement about the. re ram that the APPROVED FOR PUBLIC RELEASE When we interviewed Gonzales, he told us that he'was trying to be careful during his public testi'monj,r about discussing or characterizing a classi?ed program with persons not read into the program, and that he used the term ?serious dis ree t? to distinguish the disagreement regarding ?from other disagreements regarding the program. Gonzales told Us that he believed his statement that there was ?no serious disagreement? was accurate becaus 1 . Presidential Authorization continued to permit the activity- to be a point of ?serious disagreement? between the Justice Department and the White Hou' mpared to the more serious disagreement related to .445 Gonzales also told the . . a o; hospital room solely ove - and other evidence discussed in Chapter Four tends to con?rm tha . - . was not the critical issue in the confrontation with Department of?cialsat the hospital or that it precipitated the threat of mass resignations by senior Department and FBI of?cials. Yet, even if that? was not a ?serious disagreement? between the Department and the White House, Gonzales?s testimony is still problematic. When Senator Schumer presSed Gonzales on Whether Department officials ?expressed any reservations about the ultimate program,? Gonzales replied: ?Senator, I want to be. very careful here, because, of course, I?m here only testifying about what the President has con?rmed. And With respect to what the President has con?rmed, I believe I do not believe that these DOJ of?cials that you?re identifying had concerns about this program.? We understand that it? is possible to constructan argument that the Deartment of?cials did ot hae ?reis'rvations? or .1 . 7. - owever, 1 sue -_an argument at besMred t?chnically accurate, it would still not account for key details that were omitted from ?745 While Gonzales may subjectively have believed the disagreement about this issue did not rise to the level of a serious disute he was aware that Goldsmith act Addi; disared abot APPROVED FOR PUBLIC RELEASE Gonzales?s testimony thatvvould be necessary for an accurate understanding of the situation. The De artment- clearl had reservations andmems about. the? of the program, Mdfe Otter, dlthis "attempted" 7' construction by stating in a February 28, 2006, letter to Senator Specter- th'at' the terrorist surveillance pro rain was ?rstauthorizedfb the President in. October 20-01 ears'before th Gonzalesknew that Corney, Department had expressed ?reservatiOns? or prior to the President?s decision. t- at? more signi?cant. the evidence is clear that Corney and others had strong and clearly id ti 16d concerns re ardin the extent of the President?s authority to conduct? These concerns had been communicated to the White House in Several meetings over a period of months. ri to and includi'n March 2004, and the White HOuse did not part of the program in response to these cancerns; However, Gonzales?s testiniony suggested that such concerns and reservationson the part of Justice Department of?cials never eXisted. To the contrary, the Department?s ?rm objectionsto this aspect of the program were instrinnental in bringing about? collection in ?the program the President has con?rmed.? Following his July 24, 2007, testimony, Gonzales acknowledged in an unclassi?ed August 1, 2007, letter to Senator Leahy that his use of the term ?terrorist surveillanCe program? and his ?shorthand reference to the ?prog?ram? publicly ?described by the President? may have created confusion,? particularly for those familiar-with the full range of NSA activities authorized by the President. Gonzales wrote that he was determined to address any impression that his testimony was misleading. In this letter, Genzales attempted to describe what he had meant by the term ?terrorist surveillance program,? stating that it. covered one aspect of the NSA activities that the President had authorized. His letter also acknowledged the dispute concerned the legal basis for certain NSA actitrities that Were regularly authorized in the same Presidential Authorization as the. terrorist surveillance program. Gonzales also acknowledged that Comey had" refused to certify a Presidential Authorization ?because. of concerns about the legal basis. of certain of these SA activities.? Yet, this follow-up letter, while providing more context about the issues than his July 2007 statements, did not completely address the misimpressions created his testimony. Goldsmith, and ?concerns? abbu the dispute about ass" APPROVED FOR PUBLIC RELEASE Gonzales still suggested in his August 1 letter that the only dispute between the De artment? and the White Heuse Concerned aspects of the pregram 9W While we again acknoWledg?e the dif?culty of the situation Gonzales faced in testifying publicly about a highly classi?ed and controversial pregram, we believe Gonzales could have done other things to provide clearer and more accurate test?nbny- without divulging claSSi?ed informatiOn. Similar. to the impert of his August 1 letter, and without providing operational details about these other activities, he could have clari?ed that part of the dispute with the Department concerned the scape of what he called ?the terroriSt surveillance program,? while another part of the dispute concerned other ?intelligence activities? that were either related to the terrorist surveillance. program or, mOre accurately, a different aspect of the same SA program. Gonzales also could have explained that different activities under the program raised different concerns the Department because each set of activities rested upon different legal theories. 447 Alternatively, Genzales Could have declined to discuss any aspect of the dispute at an open hearing:448 Or, short of seeking a closed session, Gonzales could have sought White House approval to brief the Chairs and Ranking Members of the Senate andHouse Judiciary Committees about the program so that-they Would fully Understand the nature of the NSA program and the classi?ed issues surrounding the dispute. Instead, Gonzales gave public testir?nony that was confusing and inaccurate, and had the effect of misleading those who were not read into the program, as well as some who were. (U) Concerning Gonzales?s July 2007 testimOny in particular, the questions Gonzales would be expected to answer were clearly foreseeable, eSpecially in light of the disparities between his February 6, 2006, testimony and'Comey?s May 15,2007, testimony. In addition, Gonzales had been provided a letter by senator 'Leahy referencing Comey?s testimony and advising Gonzales to be'prepared to discuss the legal authorizatiml for the ?President?s warrantless electronic surveillance program in March and April 4?43 As. noted, Genzales provided closed?session testimony before on July 19, 2007, in whioh he described the March 2004 dis ute between White House and Justice Depar?neut of?cials as? - (W) APPROVED FOR PUBLIC RELEASE 2004.? Gonzales was therefore on notice that he would be expected to bring clarity to the. confusion that existed following Comey?s testimony. Rather than clarify these matters, we believe Gonzales further confused the issues through his testimony. (U) Finally, we considered Whether Gonzales?s testimbny constituted criminal false statemeatsand concluded that his statements did not constitute a criminal violation of 18 U.S.C. 1001. A person violates that statute by ?knoWiIigly- and willfully? making a ?materially false, ?ctitious, or fraudulent statement or 18 1001(a)(2). We do not believe the evidence showed that Gonzales intended to mislead Congress or willfully make a false statement. Moreover, we do not believe a prosecutor could prove beyOnd a reasonable doubt that there Twas no interpretation of his words that could be Viewed as literally trile, even if his testimony was confusing and created (U) in sum, we believe that while the evidence did not showthat Gonzales?s statements constitute a criminal Violation, or that he intended to mislead Gangress, his testimony was confusing, not'accurate, and had the effect of misleading those who were not knowledgeable about the program. His testimony also undermined his credibility on this important issue. As the Attorney General, We believe Gonzales should have taken more care to ensure that his testimOny was as accurate. as possible Without revealing classi?ed information, particularly given the signi?cance of this matter and the-fact that aspects of the dispute had been made public previously. (U) 449 See United States 22-. Milton, 8 F.3d 39, 45 (DE. Cir. of literal truth? applies to false statement prosecutions under 18 U.S.C. 1901), cart. denied, 513 8.3.9119 (1994). See also United States Haiti, 24 F. Supp. 2d 33 (13.9.0. 1998), in which the court stated, false statement is an essential element of a prosecution under 18 U.S.C. 1001-, and if the statement at issue is iiterally true a defendant cannot be convicted of violating Section 1001.? id. at 58; United States U. Hsid, 176 517, 525 (DC. Cir. 1999Hreversing on other grounds). (U) APPROVED FOR PUBLIC RELEASE sf. 1.77 CHAPTER NINE CONCLUSIONS (U) Within Weeks of the terrorist attacks of September 11, 2001,. the National Security Agency (NSA) initiated a Top Secret, compartmented program to collect and analyze international and domestic telephone and e-rnail Communications and related data. The intent of the NSA program, which used the cover term Stellar Wind, was to function as an ?early warning system? to detect and prevent future terrorist attacks within the United States. STT ,1 SI ,1 08/ Elite The program was authorized by the President in a series of Presidential Authorizations- that were issued at approximately 30 to 45 day intervals and. certi?ed as to form and legality by the Attorney General. The Presidential Authorizations stated that an extradrdinary emergency existed permitting the use of electronic surveillance Within the United States for counterterrorism purposes, Without a court order, under specified circumstances. Under the program the SA collected vast amounts of information through electronic surveillance and other intelligence?gathering techniques, including infermation concerning the telephone and e-mail communications of American citizens and other US. persons. Top Secret compartmented information derived from this collection was provided to, among otheragencies, the which sent Secret~leVeL non-compartmented versions of the information to FBI field of?ces-as investigative leads. The Stellar Wind program represented an extraordinary expansion of the signals intelligence activity and a departure from the traditional restrictions on. electronic surveillanCe imposed under the Foreign Intelligence? Surveillance Act (FISA), Executive Order 12333, and other Yet, the program was conducted with limited noti?cation to Congress and Without judicial oversight, even as the'pr?ograin continued for years after the September 1 1 attacks. The White House controlled who within the Justice Department could be read into the Stellar Wind program. In particular, We found that only three Department attorneys, including the Attorney General, were read into the program and only one attorney Was-assigned to assess the program?s legality in. its first year and a half of operation. The limited number of Justice Department readdns contrasted sharply with the hundreds of operational personnel who were read into the program at the FBI and other agencies involved with the program. till} APPROVED FOR PUBLIC RELEASE 1. Operation of the Program Under the "program, the NSA initially intercepted the content of international telephone: and e?mail cemmunications in cases where at least one of the 'communiCants was reasonably believed to be associated with any international terrorist group. These collections became known as basket 1 of the Stellar Wind. ro ram. The SA also collected 13qu telephony and e?mail meta data communications signaling informatiOn shoWing contacts between and among telephone numbers ands?mail addresses, but not the contents of those communiCatiOnS. These collections became known as basket 2 (telephone meta data) and basket 3 (e-mail meta data) of the Stellar Wind program. Under basket 2 collections These-call detail records included the originating. and terminating telephone number of each call, and the date, time - ch call, but not the content of the call. The NSA collects I ?pairsthe NSA collects .. 450 E?mail. meta data included only I the f?tof? ?from,? ?bee,? and other addressing-type information, but similar to call detail records did not include the subject line or the message- contents. NSA accessed baskets 2 and 3 for analytical purposes speci?c telephone numbers or e-mail addresses that satis?ed the standard APPROVED FOR PUBLIC RELEASE for querying the data as described in the Presidential Authorizations. A small amount of the collected content and meta data was analyzed by the NSA, working With other members of "the Intelligence Community, to generate intelligence reports about suspected terrorists and individuals ssibly associated with them. Many of these reports were disSeminated, or ?tipped,? to the FBI for further dissemination as leads to FBI ?eld. of?ces; As of March U.S. telephone numbers e-mail addresses had been tipped to the FBI, the vast maj disseminated to FBI field of?ces for investigation or other action. The results of these investigations Were uploaded into FBI databases. The Justice Department had two primary roles in the Stellar Wind. program. First, the Attorney General was required to. certify each Presidential Authorization-as to form and legality in effect, to give the Department?s assurance that the activities the President was authorizing the NSA to conduct were legal. In carrying out this responsibility, the Attorney General was advised by the Department?s Of?ce of Legal Counsel (OLC). As we described in this report and discuss in the next section, We found that during the early phase of the Stellar Wind program the Department lacked suf?cient attorney resources to be applied to the legal review of the program and, due in signi?cant part to the White House?s extremely close hold over the program, was not able to coordinate its legal review of the program with the NSA. The other primary role in Stellar Wind was as a member of the Intelligence Community. The FBI was one of two main customers of the intelligence produced under the program [the other being the CIA). Working with the SA, a small team of FBI personnel converted the Top Secret Stellar Wind intelligence reports into leads that we disseminated at the Secret level, under an FBI program called to FBI ?eld of?ces for apprOpriate action. As detailed in Chapter Six an discussed below, we concluded that although the information produced under the Stellar Wind program had value in some counterterrorism investigations, it played a limited role in. the overall counterterrorism efforts. WSW) II. Office of Legal Counsel?s Analysis of the Stellar Wind Program As described in Chapters Three, Four, and Five of this report, the Justice Department advised the Executive Branch, and in particular the President, as to the legality of "the Stellar Wind program. The Department?s view of the legal support for the activities conducted under the program changed over time as more attorneys were read into the program. These APPROVED FOR RELEASE changes occurred in three phases. In the ?rst phase of the program (September 2001 through May 2003), the legality of the program was founded on an analysis developed by John Yoo, a Deputy Assistant Attorney General in OLC. In the second phase (May 2003: through May 2004), the program?s legal rationale underwent signifiCant review and revision by OLC Assistant Attorney GeneralJack Goldsmith and Associate Deputy Attorney General Patrick Philbin. In the third and final phase (July 2004 through January 2007], based in part upon the legal concerns raised by the Department, the entire program was-moved from presidential. authority to statutory authority under PISA, With oversight by the FISA Court. {31/ jon as In Chapters Three and Four, we examined the Department?s early role in assessing the legality of the Stellar Wind program. The Justice Department?s access to the program was controlled by the White House, and former White House Counsel and Attorney General Alberto Gonzales told the DIG that the President decided whether non?operational personnel, including Department lawyers, could be read into the program. Department and FBI of?cials. told us that obtaining approval to read in Department officials and FISA Court judges involved justifying the requests to Counsel to the Vice President David Addington and White House Counsel Gonzales, who effectiVely acted as gatekeepers to the read-in process for nonwoperational officials. In contrast, according to the NSA, operational personnel at the. NSA, CIA, and the FBI were read into the program on the authority'of theNSA DireCtor, who at some point delegated this authority to the Stellar Wind Program Manager. We believe the White House?s policy of limiting access to the program for non?operational personnel was applied at the Department of Justice in an unnecessarily restrictive manner prior to March 2004, and was detrimental to the Department?s role in the operation of the program from itsinception through that period, We alsobelieVe that Attorney General Ashcroft, as head of. the Department during this time, was responsible for seeking to ensure that the Department had adequate attorney reSources to conduct a thorough and aCcurate review of the legality of the program. We belietre that the circumstances as they existed as early as 2001 and 2002 called for additional Department resources to be applied to the legal review of the program. As noted in Chapter Three, Ashcroft requested. to have his Chief of Staff and Deputy Attorney General Larry Thompson. read into the program, but the White House did not approve this request. However, because Ashcroft did not agree to be interiziewed by" the SIG for this investigatiOn, we were unable to determine the full extent of his efferts to press the White House to read in additional Department of?cials between the program?s inception in October 2001 and the critical events of March 2004. Wheel-ma I APPROVED FOR PUBLIC RELEASE Although We could not determine exactly why Yoo remained the only Department attorney assigned to assess the program?s legality from 200 1 until his departure in. May 2003, we believe that this practice represented an extraordinary and inappropriate departure from traditional review and oversight procedures and. resulted in signi?cant harm to the Department?s role in the program. In the earliest phase of the program, Yoo advised Attorney General Ashcroft and the White House that the Collection activities under Stellar Wind Were a lawful exercise of the President?s inherent authorities as under Article II of the Censtitution, subject only to the Fourth Amendment?s reaSonableness standard. In reaching this conclusion, Yoo. dismissed as constitutionally incompatible with the. President?s Article II authority the FISA statute?s provision that FISA was to he the ?exclusive means? for conducting electronic surVeillance in the United States fer foreign intelligencepurposes, and he concluded that these statutory provisions should be read to avoid? con?icts with the President?s constitutional Commander-in?Chief authority. (W) As noted above, during the ?rst year and a half of the Stellar Wind. program only three Department attorneys were read intothe program - Yoo, Attorney General Ashcroft, and ames Baker, Counsel in the Of?ce of Intelligence Policy and Review.- Jay Bybee, the OLC Assistant Attorney General and Yoo?s direct supervisor, was not read into the program and was unaware that Yoo was providing advice on the legal basis. to support the program. Thus, Yoo was providing legal opinions on this unprecedented expansion of the surveillanCe authcirity Without reView by his OLC supervisor or any other Department attorney, Rather, Yoo Worked alone on this project,_and produced two major epiniOns supporting the legality of the program. I When additional attorneys were read into the program in 2003, they provided a fresh review of Yoo?s legal memOranda. Patrick Philbin, an Associate Deputy" Attorney'General, an_d?_later Jack Goldsmith, Bybee?s replacement as the Assistant AttOrney General for OLC, concluded that Yoo?s analysis was seriously ?awed, both factually and legally. Goldsmith and Philbin Concluded that'Yoo?sanal sis fundamentally mischaracterized failing to address the fact that the NSA was co?llectin and 51130 failing toassess the- legality of this activity as'it was carried out by the NSA. Goldsmith and Philbin also pointed to Yoo?s assertion that Congress had not sought to restrict presidential authority to conduct warrantless searches in the national security area, and criticized Yoo?s omission from his analysis of a FISA provision (50 U.S.C. 1811] that addreSsed the President?s authority to conduct electronic-surveillance during wartime. They further noted that Yoo based his assessment of the program?s legality on an extremely APPROVED FOR PUBLIC RELEASE aggressive View of. the law that revolved around the Constitutional primacy of the President?s Article II Commander-in?Chief powers, andhe may have done so based on a faulty understanding of key elements of the program. W) As described in Chapter our, Goldsmith and Philbin?s reassessment of the legality of Stellar Wind began after Yoo left the Department in May 2003, and culminated in a? lOS-pa'ge legal memcrandum issued on May 6, 2004. That memorandum superseded Yoo?s earlier Stellar Wind opinions and premised the legality of the. program?s electronic surveillance activities on statutory rather than ArtiCle Il constitutional grom?ids.451 As a consequence of this new legal rationale, Department of?Cials concluded that the President?s authori to conduct electronic surveillance of the enern in wartime was - - - - Department?s advice to? the White House that the-scape Of'collection under the program was legally problematic led to a contentious dispute in March-2004 (discussed below in Section We agree with many (if the criticisms offered by Department of?cials regarding the practice of allowing a single Department attorney to develop the legal justi?cation for such a complex and contentious program without critical review both within the Department and by the SA. These of?cials told us that errors in Yoo?s legal memoranda may have been identi?ed and corrected-if the SA had been allowed to review his work. They also stressed the impert'ance of adhering to traditional practice of peer review of all OLC memoranda and the need for the OLC Assistant Attorney General, as a Senate-con?rmed of?cial, to review and approve all such opinions. WW These officials also stated that such. review and oversight measures are especially important with regard to legal opinions on classi?ed matters that are not" subjected to outside scrutiny. We agree with'these of?cials? comments and note that because programs like Stellar Wind are not subject to the usual external checks and balances. on Executive authority, advisory role is particularly critical to the Executive?s understanding of potential statutory and Constitutional constraints on its actions. APPROVED FOR PUBLIC RELEASE We did not agree with Gonzales?s View that it was necessary for natiOnal security reasons to limit the number of Department read-ins to those ?Who were absolutely essential,? as distinguished from the numerous operational read-ins? who were necessary to the technical implementation. of. the program. First, the program Was as legally Challenging as it was technically complex. Just as a sufficient number of operatitmal personnel were read into the program to assure its proper technical implementation, we believe that as many attorneys as necessary should haVe been read in to assure the soundness of the program?s legal foundation. This was not done during at least the ?rst 20 months of the program. Second, we do not believe that readingrin a few additional Department attorneys during the initial phase of the re ram would have jeopardized national security, cepecially given the?ope?rational personnel who were cleared into the program during the same period.452 In fact, the highly classi?ed nature. of the program, rather than constituting an argument for limiting the OLC read?ins to a single attorney, made the need for careful analysis and review Within the Department and by the NSA more compelling. We also found that the expansion of legal thinkingand breadth of expertise from reading-in additional Department attorneys over tinie eventually produced more factually accurate and legally Comprehensive. analyses Concerning the program. Increased attorney readwins also was an important factOr in grounding the program on ?rmer legal footing under FISA. The transition of the program from presidential: authority to statutory authority under FISA with judicial oversight was made possible through the collective work of the attorneys who ?nally were read into the prOgram beginning in 2004. The applications to the FISA Court to effecttIate this transition were produced by Department attorneys, working with both legal and technical personnel at the NSA, further reinforcing our View that such coordinated efforts are more likely to produce well?considered legal strategies and analysis. In addition, as discusSed in Chapters Six and Seven, the increase in the number of attorneys read into the program beginning in 2004 helped the Department to more ef?ciently ?scrub? Stellar? Wind?derived information in FISA applications and improve the handling of Stellar Wind?related diacovery issue-sin international terrorism prosecutions. 452 By the end of 2003, only Yoo, Ice, ilin andGoldsit hd been APPROVED FOR PUBLIC RELEASE 111. Hospital Visit and White House. Recerti?cation of the Program W) In Chapter Four, we describe how the Department?s reassessment of Yoo?s legal analysis led Deputy Attorney General James Comey, who was exercising the powers of the Attorney General While Ashcroft was hoSpitalized in March 2004, to conclude that'he could not certify the legality of the Stellar Wind program. In response, the President sent Gonzales and Chief of'Staff Andrew Card to visit Ashcroft in the hospital to seek his certi?cation of the program, an action Ashcroft refused to take. We believe that the way the White House handled its dispute with the Department about the-program - particularly in dispatching Gonzales and Card to Ashcroft?s hospital room in an attempt to override Co'mey?s decision was trOubling, As detailed in Chapter Four, by March 2004 when the Presidential Authorization in effect at that time was set to expire, Goldsmith had already notified'the White House several months earlier about the. Department?s doubts concerning the legality of aspects of the Stellar Wind pro. ram. He 4- When Attorney General Ashcroft was hOSpitali'zed and unable to ful?ll his duties, Deputy Attorney General Conley assumed the Attorney Genera?l?s responsibilities. Before the Presidential Authorization was set to expire on March 11, 2004, Conley made clear to senior White House officials?, including Vice President Cheney and White House Counsel Gonzales, that the Justice Department could not certify the program as legal. The White House disagreed with the Justice Department?s position, and on March 10, 2004, convened a meeting of eight congressional leaders to brief them on the Justice Department?s decision not to recertify the program and on the need tocontinue the program. The White House did not ask Comey or anyone from the Department to participate in this brie?ng, nor did it notify any Department officials that the brie?ng had been convened. Following this congressional briefing, at the direction of President Bush, Gonzales" and White House Chief of Staff Andrew Card went to the hospital to seek Attorney General Ashcroft?s. certification of the Authorization. Again, the White House did not notify any Department of?cials, including Comey, the ranking Department of?cial at the time, that it planned to take this action. Gonzales?s- and Card?s attempt to persuade Attorney General Ashcroft, who was in the intensive care unit recovering from surgery and according to Witnesses appeared heavily medicated, to certify the program over Comey?s opposition Was unsuccessful. Ashcroft APPROVED FOR PUBLIC RELEASE . A 3. a cg. if told Gonzales and Card from his hospital bed that he. supported the Department?s revised legal position, but that in any event he was not the Attorney General at the time Comey was-453 On March 1 the following day, Gonzales certified the Presidential Authorization as to form and legality. We agree with Director Mueller?s observation that the White House?s failure to have Justice Department representation at the congressional brie?ng and the attempt to petshade Ashcroft to recertify the Authorization without going through Cortney ?gave the strong perception thatthe [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.? After Mueller, Conley, and other senior Department and FBI officials made known their intent "to resign, the President directed that the isSue be resolved, and the program was modified to address the Department?s legal concerns. Because we were unable to interview key White House of?cials, We could not determine for certain what caused the White House to change its position and modify the program, although we believe the prospect of roses resignations at the Department and the FBI was a signi?Cant factor in this decisionr?s-ffof?tF) We reached several conclusions baSed on our review of the Department?s role in the legal analysis of this program'and the events surrounding the dispute between the Department and the White House. First, legal opinions Supporting complex national security programs especially classi?ed programs that press the bounds of. established law should be collaborative products supported by sufficient legal and technical expertise and resources at the Department, working in conCert with other participating agencies, with the goal of providing the Executive? Branch the most informed and accurate legal advice. By limiting access to this program as it did, the" White House undermined the Department?s ability to perform its critical legal function. 433 Gonzales stated that even if he knew that Ashcroft was airfare Conley opposed recertifying the program, Gonzales would still have wanted to: speak with Ashcroft because he believed Ashcroft still retained the authority to certify the program. Gonzales testified before the Senate Judiciary Committee in July 2007 that although there was concern over Ashcrofth condition, ?We would not have sought nor did we intend to get any approval from General Ashcroft if in fact he wasn?t fully competent to make that decision." Gonzales also testified, ?There?s no governing legal principie that says that Mr. Ashcroft . If he decided he felt better, could decide, ?I?m feeiing better and I can make this. decision, and I?m going to make this decision.? (U) APPROVED FOR PUBLIC RELEASE second, We believe that if the traditional peer review and supervisory procedures had been adhered to at the outset, the prospect that aspects of the program would have rested on a questionable legal. foundation for over 2 years would have been greatly mitigated. Third, we believe that the Department and FBI officials who resisted the pressure to recertify the'Stellar Wind pregram because of their belief that aspects of'the program were not legally supportable acted courageously and at signi?cant professional risk, 'We belieVe that this action by Department and FBI officials - particularly Ashcroft, Comey, Mueller, Goldsmith, Philbin, and-Counsel for Intelligence Policy James Baker was in accord with the highest professional standards of the Justice Department- We recommend that when the Department of Justice is involved with such programs in the future, the Attorney General should carefully assess. whether the Department has been given? adequate resetrr'ces to carry out its Vital function as legal adviser to the President and should aggressively seek additional resources if they are found to be insuf?cient. We also believe that the White House should: allow the Department a Sufficient number of readwins when reQLiestcd, consistent with" national security considerations, to tensors that each sensitive programs receive a full and careful legal- review. (U) IV. Transition of Program? to FISA Authority ?ta-1W We also examined the transition of the'Stellar Wind program?s collection actiVities from presidential authority to FISA authority; We believe there were strong considerations that favored attempting to transition the program to FISA sooner than actually happehed, especially as the pregrara became less a temporary response to the September 1 1 attacks and mere a permanent surveillance tool. Chief among these considerations was the Stellar Wind program?s substantial effect on privacy interests of US. persons. Under Stellar Wind, the government engaged in an unprecedented collection of information concerning U.S. perSOns. The President authorized the intercept, without judicial approval or oversight, the content of international communications insolvng many US. persons and the NSA collected massive amounts of non?content data about US. persons? domestic and international telephone calls and e?mail communications. We believe that such broad surveillance and collection activities, particularly for a significant period of time, should be conducted pursuant to statute and judicial oversight. We also believe that placing these activities under Court supervision provides an important measure of accountability for the government?s conduct that is less assured where the activities are both authorizedand supervised by the Executive Branch alone. The instability of the legal reasoning on which the program rested for seVeral years and the SubStantial.Irestrictions placed on FBI agents? access to and use of program?derived infermation due to Stellar Wind?s highly classi?ed status were additional reasons for transitioning Stellar Wind?s collection activities to FISA authority. We acknowledge that the transition would always have-been an enormously cenipleX and time-consuming effort that rested upon nevel interpretations and uses of FISA that not all FISA Court judges would authorize, Nevertheless, "the events described in this report demonstrate that a full transition to FISA authority was achievable and, in our judgment, should have been pursued'earlier. W). V. Impact of Stellar Wind Information an FBI Co'unterterrurism Efforts. (Sam As a user of Stellar Wind program information, the FBI disseminath leads or ?tippers? to FBI field of?ces. These tippers primarily consisted of specific domestic telephone numbers and e?mail addresses that NSA had determined through meta data analysis were connected to individuals involved with al Qaeda or af?liated groups. The tippers also included Content of communications intercepted by the NSA based upon its determination that there was probable cause to believe that a party to the communication was al Qaeda or an af?liated grthober 2001 through February 2006, the SA provided the F13 ,7777 Wind tippers, the vastmajority of which were demestic telephone numbers. The chief obj ective during the earlieSt months of Stellar Wind?s operation was to "expeditiously disseminate program information to FBI ?eld of?ces for investigation, while protecting the NSA as the source of the information and the methods used to collect the information. The FBI assigned this task to a small group of personnel from the Telephone Analysis Unit (TAU) at FBI Headquarters. This group developeda straightforward process to receive the Top Secret, compartmented Stellar Wind reports from the NSA, reproduce the information in a non~compartmented, Secret~level format, and. disseminate the information in Electronic Communications, or ECS, to the appropriate ?eld offices for investigation These . i_ 313?? E05 placed restrictions on how the information could he need, instructing ?eld of?ces that the information APPROVED FOR PUBLIC RELEASE was "for lead purposes only? and could nor be used for any legal or judicial purpose. The participation in Stellar Wind evolved over time as the program became less a temporary'response to the September I attacks and more a permanent surveillance capability. As Stellar Wind continued to be reauthorized, the FBI tried to improve the effectiveness of its participation in. the program. Most Signi?cantly, in February 2003 a team of FBI personnel (Team. 10) was assigned to work full-time at the NSA to manage the participation in the pregram. W) Team 10?s chief responsibility was to disseminate Stellar Wind informationto FBI ?eld of?ces. However, over time Team 10 began to participate in Stellar Wind in other ways. For example, Team 10 submitted telephone numbers and e-mail addresses to the SA for possible querying against the bulk meta'data collected under- the program, and Team 10 regularly Contributed to the drafting process for Stellar Wind reports. Overall, we found that the decision to assign Team 10 to the SA improved the knowledge about Stellar Wind operations and gave the NSA better insight about how FBI ?eld. of?ces investigated Stellar Wind information. These bene?ts translated to improvem Stellar Wind report drafting precess', and by extension, in leads. One of the other changes the FBI implemented to attempt to improve the processfor handling Stellar Wind leads Was to make the Headquarters-based Communications Analysis Unit (CAU), instead of the ?eld of?ces, responsible for issuing National Security Letters (NSL) to obtain subscriber information on tipped telephone numbers and e?mail addresses. This measure, initiated in July to address agent concerns that the leads, which reproduced the information in a Seeret-level format, did not provide suf?cient information to initiate national security investigations, a prerequisite under Justice Department investigative guidelines to issuing NSL's. Agents complained that the E03 suffered from vagueness about the source of the informatibn being provided and lacked factual details about the individuals allegedly involved with al Qaeda and with whom the domestic numbers being disseminated possibly were in contact. the CAU implemented this change by issuing NSLs from the centrol ?le, the nn-invstigative ?le created in September 2002 as a repository fo__ communications between FBI Headquarters and ?el onie isuing NSLs from a control ?le instead of an investigative ?le was contrary to internal FBI policy. In November 2006, the FBI ?nally opened an investigative ?le for the! project. We believe the CAU and OGC officials involved in the decision APPROVED FOR PUBLIC RELEASE to issue NSLs from the-control file conclude in th that the' FBI had sufficient predication either to connect the f7 with existing preliminary or full investigations of al Qaeda and af?liated groups or to open new preliminary or full inVestigations in compliance with Justice Department investigative guidelines. HoweVer, we concluded that the. FBI could have, and should have, opened aninvestigative ?le for when the decision was first made to have FBI Headquarters instead of ?eld of?ces issueiNSLs- for leads. We alsotriedto assess the general role of Stellar Wind information in FBI investigations and its Value to overall counterterrorism efforts. Similar to the FBI, we had difficulty assessing the speci?c value of the program to the counterterrorism activities. W) The majority of. Stellar Wind information the NSA provided the FBI related to domestic telephOne numbers and e?mail addresses the NSA had identi?ed through meta data anal sis as 'havin connections to al aeda or af?liated or anizations. sur risin'gly',? FBI agents and with experienceinvestigating leads toldqu thatrnost leads were determined not to have any connection to terrorism. These a ents and did not identify for us any speci?c cases Where ?Ieads helped the FBI identify previously unknown subjects involved in terrorism, although we recognize that FBI of?cials and agents other than those We'interviewed may have had different experiences with Stellar Wind'information. Two FBI statistical studies that attempted to assess the value of Stellar Wind meta. data leads to FBI counterterronsm efforts did not reach explicit conclusions on the program?s usefulness. The ?rst study found that 1.2 percent of Stellar Wind leads made ?fsigni?cant? contributions.454 The second study did not identify any examples of ?signi?Cant? Stellar Wind contributions to FBI counterterrorisrn efforts-455 The FBI OGC told us that ??54 As we described earlier in this chapter, the FBI considered a tipper ?signi?cantthree investigative results: the identi?cation of a terrorist, the deportation from the United-States of a suspected terrorist, or the development of an asset that can report about the activities of terrorists. TWP) ?55 As described earlier in this chapter, the FBI considered a- tipper ?signi?cantthree investigative results: the identi?cation of a terrorist, the deportation from the United States of a suspected terrorist, or the development of an asset that can report about the activities of terrorists. APPROVED FOR PUBLIC RELEASE statements by senior FBI officials in congressional testimony that the Stellar Wind program had value were based in part on the results of the first study, which found that 1.2 percent of the Stellar Wind leads made signi?cant contributions 0' ts we interviewed generally were supportive of Stellar Wind (or calling the information ?one tool of many? in the anti-terroriSm efforts that ?could help move cases forward? by, for example, confirming a subject?s contacts with individuals involved in terrorism or identifying. additional terrorist contacts. However, FBI agents and alSo told us that the Stellar Wind information disseminated to FBI ?eld offices could also be frustrating becauSe it often lacked details about the- foreign individuals allegedly involved in terrorism with whom domestic- telephone numbers and e-mail addresses were in contact. Some agents also believed that th project failed to adequately prioritize leads sent to FBI ?eld of?ces. FBI Director Mueller told us that he believes the Stellar Wind program was useful and that the FBI must follow every lead it receives in order'to prevent future terrorist attacks. He stated that to the extent Such information can be gathered and used legally it must be exploited, and that he ?would not dismiss the potency of a program based on the percentage of hits.? Other wimesSes shared this viewthat an intelligence prograin?s value cannot be assessed by statistical measures alone. General Hayden said that the value of the program may lie in its ability to help the Intelligence Community determine that the terrorist threat embedded within the country is not as great as once feared. Some witnesses also believed that the value of the program should not depend on documented ?success stories,? but rather on maintaining an intelligence capability to detect potential terrorist activity in the future. Several witnesses anggested that the program provides an ?early warning system? to allow the Intelligence Community to detect potential terrorist attacks, even if the system has not specifically uncovered evidence: of preparations fer such an attack. As part of our analysis, we sought to look beyond these comments of general support for Stellar Wind to speci?c, concrete examples of the program?s contributions that illustrated the role Stellar Wind information either has or could play in the counterterrori'sm efforts. We examined ?Ve cases frequently cited in documents we reviewed and during our interviews as examples of Stellar Wind?s positive contributions to the counte?rterrorism? efforts. The evidence indicated that Stellar Wind information had value in some of these investigations by causing the FBI to take action that led to useful investigative results. In other cases the connection between the Stellar Wind information and the investigative actions was more dif?cult to discern?WW APPROVED FOR PUBLIC RELEASE i - -i i In the end, we found it difficult to assess or quantify the overall effectiveness of the Stellar Wind program to the counterterrorism activities. However, baSed on the interviews conducted and documents reviewed we concluded that although Stellar Wind information had value in some counterterrorism. investigations,it generally played a limited role in the Overall counterterrorism efforts. It is also important to note that a signi?cant consequence of the NSA program and the approach to assigning leads for program information was that FBI field of?ces conducted many threat assessments on individuals located in the United States, including persons, that typically were determined not to have any nexus to terrorism or represent a threat to national security. As a result, the FBI collected and retained a signi?cant amount of personal information about the users of tipped telephone numbers and e-mail addresses, such as names and home addreSses, places of employment, foreign travel, and the identity of family members. The results or these threat-assessments and the information collected generally Were reported in communications to FBI Headquarters and uploaded into FBI 'I?s collection of information in this manner is on oingunder project, the successor FBI project to?vvhich disSeminates to FBI ?eld of?ces lead information the NSA derives from bulk tele hon and e?mail meta data now collected under FISA authority. Like project requires FBI ?eld of?ces to-Conduct threat assessments on telephone numbers and. e-mail addresses identified through the analytical process that the FBI is not already aware of, including telephone numbers and e?mail addresses one or two steps removed from direct contacts with individuals involved in terrorism. To the extent the leads derived from the PISA?authorized activities generate results similar to those under Stellar Wind, the FBI threat assessments will continue to result in the collection and retention of a. signi?cant amount of "personal information about individuals in the United States, including US. persons, who do not have a nexus to terrorism or represent a threat to natibnal security. we recommend that, as part-of the project, the Justice Department?s National Security Division (N SD), Working With the FBI, should collect information about the quantity cf telephone numbers and e-mail addresses disseminated to FBI field of?ces that are assigned as Action leads and that require of?ces to conduct threat assessments. The information compiled by the Justice Department should include Whether individuals identi?ed in threat assessments are US. or non?US. persons and whether the threat assessments led to the "opening of preliminary or full national security investigations. With respect to threat assessments?uat conclude that users of tipped telephone numbers or e-mail addressesar'e APPROVED FOR PUBLIC RELEASE not involved in terrorism and are not threats to national security, the Justice Department should take Steps to track the quantity and nature. of the US. person information collected and how the FBI retains and utilizes this information. This will enable the Justice-Department and entities with oversight responsibilities, including the OIG and congressional committees, to assess the impact this intelligence program has on the privacy interests of US persons and to consider whether, and for how long, such information should be retained. The [81/ fill?) We also recommend that, consistent with current oversight activities and as part of its periodic reviews of national security investigations at FBI Head "uarters and ?eld offices, NSD should review a representative samplin leads to those offices. For each lead examined, NSD should assess FBI compliance with applicable legal requirements in the use of the lead and in any ensuing investigations, particularly With- the requirements governing the collection and use? of U.S. person information?W - VI. Discovery and ?Scrubbing? Issues Although Stellar Wind was conceived and implemented as an intelligence-gathering program, it. was inevitable that the information from this program would intersect with the Department?s prosecutorial functions, both in criminal cases brought in federal courts and in- seeking FISA orders from the FISA Court. We found that the limited number of Department read~ins also had adverse conSequences on issues related to these Department functions. One such issue concerned theDepartment?s compliance with diacovery obligations in international terrorism prosecutions, which we discuss in Cha ter Seven. We determined that the Department was aware as early as that information collected under- Stellar Wind could have implications for the Departments litigation responsibilities under Federal Rule of Criminal Procedure 16 and Brady Maryland, 373 83 (1963). WSW Analysis of this discovery issue was-?rst assigned to John Yoo in Yoo, WOrking alone, produced a le al anal sis of the ovemments A disc0very obligations inthe case of APPROVED FOR PUBLIC RELEASE No Justice Department attorneys with terrorism prosecution responsibilities were read. into the Stellar Wind program until mid-2004,. and as a result the Department continued to lack the advice of attomeys who were best equipped to identify-and examine. the discovery issues in connection with the re ram. Since that ti epartment has taken steps to respond discovery motions These reapons'es-intfolve the use of the ClasSi?ed Infermation Proc?edmes Act, 18 App. 3, to ?le exparte in camera pleadings with federal court 1- a. ., otentiall 'res'onsiVe- Stellar Wind-?derived- Q. we recommend that the Department assessits diacovery obligations regarding Stellar Wind-derived infOImation terrorism proseCutions. 'We also recommend that the Departinent carefully consider whether it must reexamine past cases to see Whether. potentiale discoverable but undisclosed Rule 16 or Brady material'wa's Collected by the NSA under the. program, and take appropriate steps to ensure that it has complied with its discovery obligations in such cases. We also recommend that the Department, in Coordination with the NSA, implement a procedure to identify Stellar Wind-derived information that may be associated with international terrorism cases currently pending or likely-to be brought in the. future and evaluate Whether such information should be disclosed in light of the APPROVED FOR PUBLIC RELEASE z_ .n government?s discovery obligations under Rule 16 and. Brady. In addition, we examined the issue of. the Department?s use of Stellar Windmderived information in FISA applications. We believe it was foreseeable that some Stellar Wind-derived information Would be contained in the applications filed. by the Department?s Office of Intelligence Policy'and Review (OIPR). OIPR Counsel Baker believed, and We agree, that it would have been detrimental to this relationship if the Court learned that information from Stellar Wind was included in PISA applications Without the Court being told so in advance. As discussed in Chapter Three, White House of?bials initially rejected the idea of reading in members of the Court, but after Departmentof?cials continued to press the issue, ultimately in January 2003iagreed to read in a single judge in January 2002 (Presiding Judge Lamberth; followed by Presiding Judge Kollar?Kotelly in May 2002),, The ?scrubbing? procedures imposed by the Court and implemented by Baker to account for Stellar Wind?derived information- in international terrorism PISA applications Created concerns among some OIPR attorneys about. the unexplained changes being made to their. FISA, applications These scrubbing procedures also substantially altered theaSsignment of cases to FISA Court judges for nearly 3 years, We concluded that once Stellar? Wind "began to affect the functioning of the FISA process shortly after the program?s inception, the number of OIPR staff and PISA Court judges read into Stellar Wind should have increased. Instead, read?ins were limited to a single OIPR of?cial for over two years and to the Presiding Judge of the PISA Court for a period of four years. FEW) The Justice Department, together with the FBI and the SA, today continues to apply scrubbing procedures to international terrorism FISA applications. Since January 2006, all members of the Court have been briefed on the Stellar Wind program and all of the judges handle applications that involve Stellar Wind-derived information in. FISA applications; While we found that the government has expended considerable resources to comply with the scrubbing procedures required by the FISA Court since February 2002, we did not find any instances of the government being unable to obtain FISA surveillance coverage on a target beCause of this requirement. 1_ VII. Gonzales?s Statements (U) As part of this review; the DIG examined Whether Attorney General Gonzales made false or misleading statements to Congress related to the Stellar Wind program. We Concluded that Gonzales?s testimony did not mmwmuu APPROVED FOR PUBLIC RELEASE constitute a false statement and that he did not intend to mislead Congress. However, we concluded that his testimony in several respects was confusing, not accurate, and had the effect of misleading those who were not knowledgeable aboutthe program. Aspects of the Stellar Wind program Were. first disclosed. publicly in a series of articles in The New York Times in December 2005. In response, the President publicly confirmed a portion of the program which he called the terrorist surveillance program describing it as the interception of the content of international communications of people reasonably believed to have links to al Qaeda and related organizations (basket 1). subsequently, Attorney General Gonzales was questioned about NSA surveillance activities in two hearings before the Senate Judiciary Committee in February 2006- and July 2007. Through media accounts and former Deputy Attorney General Comey?s Senate Judiciary Committee testimony in May 2007, it was'pUblicly revealed that the Department and the White House. had a'major disagreement related to the program in March 2004. As. discussed in Chapter Four, this dispute which resulted in the visit to Attorney General Ashc'roft?s hospital room by Gonzales and Card and brought several senior Department and FBI of?cials to the brink of resi nation after the White ".edthe.rora (W) In his testimony before the Senate Judiciary Committee, Gonzales stated that the dispute at issue between the Department and the White House did-not relate to the ?Terrorist Surveillance Program? that the President had con?rmed, but rather pertained to other intelligence activities. We believe this testimOny created the misimpression that the dispute. concerned activities entirely unrelated to the terrorist surveillance program, which was not accurate. In addition, we believe Gonzales?s teatimony that Department attorneys did not?have ?reservations? or ?concerns? about the program the ?President has con?rmed? was incomplete and confusing because Gonzales did no - hat Department?s concerns were what led tom and that. these concerns had been conveyed to the White House over a- period of months prior to and including March2004 when the issue was resolved. We recognize that Attorney General Gonzales was in the dif?cult position of testifying about a highly classi?ed program in an open forum. Hov?vever, we also believe that Gonzales, as a participant in the March 2004 dispute between the. White House and the Justice Department and?, more importantly, as the nation?s chief law enforcement of?cer, had a duty'to balance his obligation. not to diSclose classi?ed information with the need APPROVED FOR PUBLIC RELEASE .l?r-?Jn not to be misleading in his testimony about the events that nearly ledto mass resignations of the most senior officials at the Justice Department and the FBI. Although we believe that Gonzales did not intend to mislead Congress, we believehis testimony was confusing, inaccurate, and had the effect of misleading those who were not knowledgeable about the program. Conclusion 1U) From the inception of the Stellar Wind program in- Octoher 2001, vast amOunts of information about telephone and e?mail Communications were collected and stored in databases at the NSA. The NSA used this information to conduct analysis and disseminate reports to support the government?scounterterrorism efforts. We found that in the early years of the Stellar. Wind program, the Department of Justice lacked the necessary legal resources to carry out an adequate revier of the legality of the pregram. The White House strictly controlled the Department?s access to the program. For the ?rst year and a half of the program only 3 Department officials were read into Stellar Wind, and only 3 more officials had been read in by the end of 2003. Only a single Department attorney analyzed the legal basis for the pregram during its ?rst year and a half of its operation. Beginning in mid?2003, after additional Department of?cials were read into the program, the Department determined that this attorney?s initial legal analysis vvas legallyand factually flawed. We believe that the strict controls over the Department?s access to the program undermined the role of the Justice Department in advising the President as to the legality of the program during its early phase of operation. The Department?s Comprehensive reassessment of the program?s legality beginning-in mid-2003 resulted in a contentious dispute with the White House that nearly led to the mass resignation of the Department?s senior leadership. In March .2004 the White House centinued the program despite the Department?s conclusion that it found no legal support for aspeCts Of the pro ram. In the face of the potential resignations, however, the White House?in with the Department?s legal Concerns. Eventually, the entire program was transitioned, in stages, to the authorityof the FISA statute. W) Given the broad nature of the collection activities under the Stellar Wind program, the substantial amount of information the pregram collected related to persons, and the novel legal theories advanced to support the program, We believe that the Department should have more carefully and thoroughly reviewed the legality of the program, in accord with its normal APPROVED FOR PUBLIC RELEASE a a i! . peer review and oversight practices, particularly during its first year and a half of operation. WW We also concluded that the Department should have begun efforts to transition the Stellar Wind program to FISA authority earlier than March 2004, when that process began, especially as Stellar Wind became less a temporary response to the September 11 attacks and more a permanent surveillance tool. We believe that such broad surveillance. and collection activities conducted in the United Statea that impact persons, particularly when they extend for such a significant period of time; should he conducted pursuant to statute and be subjected. to judicial oversight. Placing such activitiee under Court supervision, as new occurs, also provides an important measure of accOontability for the government?s conduct that is less assured when the activities are authorized and supervised by the Executive Branch alone. Finally, we believe that the Department should carefully monitor the collection? use, and retention of the information that is now collected under FISA authority, given the. expansive scepe of the collection activities. The Department and other agencies should also continue to examine the value of collecting such information to the government?s ongoing oounterterroriern efforts. APPROVED FOR PUBLIC RELEASE APPROVED FOR RELEASE GENE 1L AQENCY INTELLIGENCE 73? 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