Breaking Down the IG Warrantless Surveillance Report

The ACLU hits the highlights of the Inspector General's unclassified report (pdf) on the Bush administration's warrantless electronic surveillance program.

  • The White House asked the CIA to prepare independent “threat assessments” to determine whether the surveillance program was necessary, but then told the CIA to add a paragraph to the end of each threat assessment stating that terrorists possessed the intent and capability to stage terrorist attacks within the United States (p. 7);
  • Many officials, agents and analysts believe that “most PSP (Presidential Surveillance Program) leads were determined not to have any connection to terrorism,” and that “the mere possibility of the leads producing useful information” justified the program (p. 32), directly contradicting previous statements that the program was critical;


  • Information derived from the PSP was “vague or without context,” leading analysts to rely on more useful tools (p.34);
  • Agencies generally have no meaningful way to tag what information they used, and possibly are still using, that was collected under the illegal program as opposed to information collected by lawful means (pps. 32-35);
  • and Former Attorney General Alberto Gonzales’ testimony before Congress claiming Justice Department attorneys did not express legal concerns with the program was found to be “incomplete,” “confusing,” and “inaccurate.”(p. 37).

I'd also note, as I did the other day, that key Bush officials refused to be interviewed for the report, such as Counsel to Vice President David Addington, White House Chief of Staff Andrew Card, Attorney General John Ashcroft, DOJ Office of Legal Counsel Deputy Assistant Attorney General John Yoo, and former Director of Central Intelligence George Tenet.

The Public Record does a good job of explaining John Yoo's role in advising Bush that it's okay to circumvent the 4th Amendment, as far back as October, 2001 and perhaps earlier, to days after the 9/11 attacks.

Yoo worked directly with White House officials on the PSP and was the only official in the Justice Department's Office of Legal Counsel who was aware of the program's existence.

....In September and October of 2001 Yoo, now a UC Berkeley law professor, “prepared several preliminary opinions relating to hypothetical random domestic electronic surveillance activities...”

Although the report does not go into details about the “hypothetical” scenarios, an investigation based on previously released government documents showed that 11 days after 9/11 Yoo drafted a 20-page memorandum that offered up theories on how the Bush administration could sidestep Fourth Amendment protections against unreasonable searches and seizures in the event the U.S. military used "deadly force in a manner that endangered the lives of United States citizens." (my emphasis.)

From the report:

DOJ Office of Legal Counsel (OLC) Deputy Assistant Attorney General John Yoo was responsible for drafting the first series of legal memoranda supporting the program. Yoo was the only OLC official "read into" the PSP from the program's inception in October 2001 until Yoo left DOJ in May 2003. The only other non-FBI DOJ officials read into the program during this period were Attorney General Ashcroft and Counsel for Intelligence Policy James Baker.

What about Jay Bybee, then John Yoo's supervisor? The report says:

Jay Bybee was OLC Assistant Attorney General from November 2001 through March 2003, and Yoo's supervisor. Bybee told the DOJ OIG that in early July 2001, before he was confirmed, he learned that Yoo was already under consideration for one of OLC Deputy Assistant Attorney General slots. Bybee said he was "enthusiastic" about Yoo and later agreed to Yoo's request to be assigned to the "national security portfolio" because Yoo had more national security experience than any of the other OLC deputies.

However, Bybee stated he was never read into the PSP and could shed no further light on how Yoo came to draft the OLC opinions on the program.

Bybee was not happy he was kept out of the loop.

Former Attorney General Gonzales and former OLC Assistant Attorney General Bybee both told the DOJ OIG that they did not know how Yoo became responsible for analyzing the legality of the PSP. Bybee told us that he was "surprised" and "a little disappointed" to learn through media
accounts that Yoo had worked on the PSP without Bybee's knowledge.

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 OLC. Other senior DOJ officials also criticized the assignment of a single OLC attorney to draft the legal rationale for the program.

As it turns out, Yoo failed to include an important Supreme Court case in his November, 2001 memo and dismissed 4th Amendment concerns. Had others been in the loop, Yoo's dubious reasoning may have been caught earlier.

The first OLC opinion directly supporting the legality of the PSP was dated November 2, 2001, and was drafted by Yoo. As discussed in Section IV of this report, deficiencies in Yoo's memorandum identified by his successors in the Office of Legal Counsel and the Office of the Deputy Attorney General later became critical to DOJ's decision to reassess the legality of the program in 2003.

In his memos, Yoo took the position:

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. 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."

In practical terms:

Yoo dismissed Fourth Amendment concerns regarding the PSP to the extent that the authorizations applied to non-U.S. persons outside the United States. Regarding those aspects of the program that involved interception of the international communications of U.S. persons in the United States, Yoo asserted that Fourth Amendment jurisprudence allowed for searches of persons crossing the border 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 rights against illegal searches and seizures, in part because the Fourth Amendment is primarily aimed at curbing law enforcement abuses.

Yoo also wrote that the activity described in the Presidential Authorizations was "reasonable" under the Fourth Amendment and therefore did not require a warrant. In support of this position, Yoo cited Supreme Court opinions upholding warrantless searches in a variety of contexts, such as drug testing of employees and sobriety checkpoints to detect drunk drivers, and in other circumstances "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable."

Yoo wrote that in these situations the government's interest was found to have outweighed the individual's privacy interest, and that in this regard "no governmental interest is more compelling than the security of the Nation."

What case did he neglect to cite, that so troubled his OLC successors?

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), a leading case on the distribution of government powers between the Executive and Legislative Branches. 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 OLC's subsequent reevaluation of Yoo's opinions on
the legality of the PSP.

Another important issue: How many criminal defendants in federal cases didn't get discovery they were legally entitled to because of DOJ not being in on the program? The report says:

Analysis of this discovery issue was first assigned to Deputy Assistant Attorney General Yoo in 2003: However, no DOJ attorneys with terrorism prosecution responsibilities were read into the PSP until mid-2004, and as a result DOJ continued to lack the advice of attorneys who were best equipped to identify and examine the discovery issues in connection with the PSP.

...The DOJ OIG also recommends that DOJ carefully consider whether it must re-examine past cases to see whether potentially discoverable but undisclosed Rule 16 or Brady material was collected under the PSP, and take appropriate steps to ensure that it has complied with its discovery obligations in such cases.

In addition, the DOJ OIG recommends that DOJ implement a procedure to identify PSP-derived information, if any, 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 government's discovery obligations under Rule 16 and Brady.

I won't be surprised to see some of these defendants raise this report in legal challenges to their convictions.

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  • Display: Sort:
    PSP not TSP (none / 0) (#1)
    by lambert on Sun Jul 12, 2009 at 04:28:42 PM EST
    Good for writers not to adopt Bush's Orwellian terminology -- and to pick a name that assigns some accountability,

    Considering what's come out in the past two days (none / 0) (#3)
    by shoephone on Sun Jul 12, 2009 at 05:20:13 PM EST
    Seems it was more like the VPSP and the DAAGSP -- Cheney and Yoo, with Addington running interference.

    Your claim (none / 0) (#4)
    by shoephone on Sun Jul 12, 2009 at 05:24:39 PM EST
    that "the Obama Administration is unquestionably great" is unquestionably naive and ignorant, IMO.