It’s worth looking more closely at how David Addington guarded the Authorization, because it provides a lesson in how a President can evade all accountability for unleashing vast powers against Americans, and how the National Security establishment will willingly participate in such a scheme without ensuring what they’re doing is really legal. The IG report describes the initial Authorization this way: On 4 October 2001, President George W. Bush issued a memorandum entitled “AUTHORIZATION FOR SPECIFIED ELECTRONIC ACTIVITIES DURING A LIMITED PERIOD TO DETECT AND PREVENT ACTS OF TERRORISM WITHIN THE UNITED STATES.” The memorandum was based on the President’s determination that after the 11 September 2001 terrorist attacks in the United States, an extraordinary emergency existed for national defense purposes. [snip] The authorization specified that the NSA could acquire the content and associated metadata of telephony and Internet communications for which there was probable cause to believe that one of the communicants was in Afghanistan or that one communicant was engaged in or preparing for acts of international terrorism. In addition, NSA was authorized to acquire telephone and Internet metadata for communications with at least one communicant outside the United States or for which no communicant was known to be a citizen of the United States. NSA was allowed to retain, process, analyze and disseminate intelligence from the communications acquired under the authority. And while the NSA IG report doesn’t say it, the Joint IG Report on the program (into which this NSA report was integrated) reveals these details: Each of the Presidential Authorizations included a finding to the effect that an extraordinary emergency continued to exist, and that the circumstances “constitute an urgent and compelling governmental interest” justifying the activities being authorized without a court order. Each Presidential authorization also included a requirement to maintain the secrecy of the activities carried out under the program. David Addington’s illegal program While the Joint report obscures all these details, the NSA IG report makes clear that Dick Cheney and David Addington were the braintrust behind the program. The Counsel to the Vice President used [a description of SIGINT collection gaps provided by Michael Hayden] to draft the Presidential authorization that established the PSP. Neither President Bush nor White House Counsel Alberto Gonzales wrote this Authorization. David Addington did. On page 24, the report describes President George W. Bush being cleared into the program in its first 30 days along with Addington and others, as if that weren’t a given. As you consider this program, always remember that it was birthed by David Addington, a guy famous for carrying a Constitution in his pocket. Not only did Addington draft this thing, he did so with very little input from NSA. no other NSA personnel [besides then Director of NSA Michael Hayden] participated in the drafting process. … [DOJ] representatives were not involved in any of the discussions that [Hayden] attended and he did not otherwise inform them. The NSA IG report makes no mention whether DOJ personnel were involved; the Joint report reveals that John Ashcroft approved the Presidential Authorization the same day he got read into the program. Attorney General Ashcroft approved the first Presidential Authorization for the PSP as to “form and legality” on the same day that he was read into the program. John Yoo must have seen the Authorizations, as he would subsequently (starting a month after the program started) write a series of poorly crafted OLC memos supporting it. Counsel for Intelligence Policy James Baker was the only other non-FBI DOJ person read into the program. The head of OLC, Jay Bybee, was not. It’s equally unclear whether FBI Director Robert Mueller was shown the Authorization though it seems unlikely given that on October 21, 2001 Ashcroft wrote him a one-page mamo confirming the program had been appropriately authorized. Once David Addington’s Authorization was completed, it got stuck away in Hayden’s safe and closely held. The original Authorization and renewals were kept in the NSA Director’s safe, and access to the documents was tightly controlled. Addington continued to write the renewal Authorizations and would personally deliver it to the NSA (on a few occasions NSA picked it up at the White House). Hayden hides the Authorization from those who needed to ensure compliance with it As Hayden set about implementing this program, he shared the authorization with very few people. He initially shared it with the General Counsel, and subsequently — 4 days after the program was launched — the Associate General Counsel for Operations and the NSA Deputy General Counsel, who reviewed it and said the program was legal. No one at NSA’s Office of General Counsel documented these reviews. Ultimately, Hayden would share the Authorization with those NSA lawyers, Program Managers, and “certain operational personnel.” When he briefed the people who would implement it on October 8, 2001, “he did not share the specific content of the Authorization with attendees.” Rather than relying on the Authorization itself for the limits of the program, analysts used criteria provided by OGC based on it. Going forward, “most NSA operations personnel, including the Chief of the [Counterterrorism] Product Line, who approved tasking for content collection, were not allowed to see the actual authorization.” Within the first 18 months of the programs operations, this close hold led to “two early violations of the Authorization.” Only after that — at the NSA IG’s insistence — did anyone even write up formal Delegations of Authority that explained the Authorization for those implementing it. And even then, this was only shared with the Program Managers and two Signals Intelligence Directorate CT Product Line managers. It’s unclear when NSA’s IG got to look at it (though he presumably did to write this report). But the IG wasn’t even read into the program until August 2002. Those other branches and the Authorization
Posted on: Sat, 24 Jan 2015 23:35:02 +0000
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