Last month, a team of inspectors general from across the government released the results of a year-long study about the constellation of domestic surveillance programs — which possess, at a minimum, dubious legality — launched by the Bush administration. One of the revelations of the study was that the CIA and other elements of the intelligence community were more involved in the surveillance than was ever suspected, with analysts from some agencies providing the basis for determining there was a continuing terrorist threat that necessitated the surveillance. For about two and a half years, two of those agencies — the Terrorist Threat Integration Center and its successor organization, the National Counterterrorism Center — were run by John Brennan. During that time, the report states, the heads of the CIA — George Tenet, John McLaughlin, and Porter Goss — signed those analytic assessments before passing them along, and the report does not specify what role if any Brennan played. Marcy Wheeler, my friend who blogs at Emptywheel, is the only reporter I know of who’s seized on this key discovery.

So today I asked Brennan: in light of the IGs report, what was his role, if any, in the domestic surveillance activities of the Bush administration? Here’s his answer, in full:

I fulfilled all my responsibilities at NCTC [National Counterterrorism Center] that I was asked to fulfill. And there are a number of different programs, some of which have come out in the press, some of which have not. Some of the things that have come out in the press have been inaccurate in terms of the representations there. And when I look back in terms of my service at the NCTC and those places I believe I fulfilled those responsibilities to the best of my abilities.

These issues related to the so-called domestic surveillance programs and other things — one of the things I mentioned, there’s a lot of hyperbole and misrepresentations about what actually happened. And a lot of times people go down certain roads believing reports as facts. And that’s not the case. So I’m not going to go into sort of what my role was in that instance because a lot of those activities are still considered classified and not in the public domain, irrespective of what the press reports might be out there.

Brennan is either conflating unspecified inaccurate press reports with the inspectors general report or he’s challenging the inspectors general report itself.

Yoo starts things off with his typical flourish of disingenuousness:

Suppose an al Qaeda cell in New York, Chicago or Los Angeles was planning a second attack using small arms, conventional explosives or even biological, chemical or nuclear weapons. Our intelligence and law enforcement agencies faced a near impossible task locating them. Now suppose the National Security Agency (NSA), which collects signals intelligence, threw up a virtual net to intercept all electronic communications leaving and entering Osama bin Laden’s Afghanistan headquarters. What better way of detecting follow-up attacks? And what president — of either political party — wouldn’t immediately order the NSA to start, so as to find and stop the attackers?

Evidently, none of the inspectors general of the five leading national security agencies would approve.

Those inspectors general, in Yoo’s imagination, aren’t overworked bureaucrats in wrinkle-free shirts, cotton Dockers and overgrown haircuts, buried under endless reams of paper. They’re useful idiots for Osama bin Laden. In truth, the reason why the inspectors general don’t entertain that scenario is because it’s absurd. If the intelligence community knew what the “electronic communications” signatures heading into and out of Osama bin Laden’s Afghanistan headquarters were, they could very easily obtain warrants under the Foreign Intelligence Surveillance Act of 1978, because they’d possess individualized suspicion. This is an unproblematic case, fitting easily under the aegis of the law on Sept. 12, 2001.  It has absolutely nothing to do with what the inspectors general call the “President’s Surveillance Program.” That’s also why the battery of Justice Department leaders like Acting Attorney General Jim Comey, Associate Attorney General Jack Goldsmith, FBI Director Robert Mueller and Associate Deputy Attorney General Patrick Philbin fought to rein in the surveillance activities — because they were overbroad and outside of FISA, which Congress explicitly made the “exclusive means” for conducting legal foreign surveillance. Yoo continues:

It is absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States.

Actually, it’s absurd to think that a law like FISA does. Yoo cites the 9/11 Commission, saying it found that “FISA’s wall between domestic law enforcement and foreign intelligence” proved to be such a hindrance, but that’s a misrepresentation. FISA has no such wall. The “wall” was an invention of the Justice Department under Janet Reno to separate foreign-collected surveillance from criminal investigations, nothing even close to “live military operations,” and in practice that bureaucratic restriction went too far and inhibited necessary FBI-CIA collaboration. The Bush administration’s response wasn’t to get Congress to change FISA; it was to entirely circumvent it.

Clearly, the five inspectors general were responding to the media-stoked politics of recrimination, not consulting the long history of American presidents who have lived up to their duty in times of crisis. More than a year before the attack on Pearl Harbor, President Franklin Delano Roosevelt authorized the FBI to intercept any communications, domestic or international, of persons “suspected of subversive activities . . . including suspected spies.”

You know what law, passed in 1978, didn’t exist when FDR was president? Yoo goes even further, and takes selective quotations from Jefferson and Hamilton to suggest that his long-discredited theory that presidents have king-like powers during times of war, and yet he never comes out and says it, because even in The Wall Street Journal people can recognize absurdity.

What’s amazing about Yoo’s caustic attack on the inspectors general report is that the report itself embarrasses Yoo but does little else. There’s no suggestion of prosecution, no recommendation of additional investigation, no harsh language. It says simply that Yoo says what he says in this op-ed and that his superiors at OLC were cut out of that loop. That’s all. Yoo’s not even in danger, if reports about Attorney General Eric Holder’s potential new investigation are to be believed, of moving into the crosshairs of the Justice Department. Today’s attack on the inspectors general is Yoo’s response to having his own words quoted back at him. Which, perhaps, is insult enough. It’s like seeing the next 30 years of your life unfold before your horrified eyes.

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In a letter — sorry, I don’t have a URL — Feingold wrote to Obama and Attorney General Eric Holder after April’s decision to declassify the Justice Department’s 2002 and 2005 rulings authorizing CIA torture, he urged the new administration to go further:

[O]rder the public release of other memoranda and letters associated with that program, including the July 22,2004 letter of the Attorney General; the August 6,2004 letter of the Acting Assistant Attorney General; the August 2006 OLC [Office of Legal Counsel] memoranda on detention; and the July 2007 OLC memo on interrogation. Moreover, the OLC memoranda should be withdrawn.

Obviously, not all of these are related to surveillance. But Feingold noted that on January 15, outgoing acting associate attorney Steve Bradbury reaffirmed a 2006 unclassified “white paper” on the surveillance programs in a letter clarifying that Bradbury had … withdrawn most of his office’s work authorizing that program. Bradbury:

As set forth in the Justice Department’s white paper of January 19, 2006, addressing the legal basis for the surveillance activities of the National Security Agency publicly described by the President in December 2005, the Department’s more recent analysis is different: Congress, through the Authorization for Use of Military Force of September 18, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001) (“AUMF”), confirmed and supplemented the President’s Article II authority to conduct warrantless surveillance to prevent further catastrophic attacks on the United States, and such authority confirmed by the AUMF could reasonably be, and therefore had to be, read consistently with FISA, which explicitly contemplated that Congress could authorize electronic surveillance by a statute other than FISA. See U.S. Department of Justice, Legal Authorities Supporting the Activities of the National SecurityAgency Described by the President (Jan. 19, 2006) (“NSA Legal Authorities White Paper”). As the January 2006 white paper pointed out, “[i]n the specific context of the current armed conflict with al Qaeda and related terrorist organizations. Congress by statute [in the AUMF] had confirmed and supplemented the President’s recognized authority under Article II of the Constitution to conduct such surveillance to prevent further catastrophic attacks on the homeland.”

Feingold wants that white paper released and formally withdrawn, along with its ilk. The stakes, as the senator puts it:

It is particularly important that your administration act soon to provide the.clarity that is needed before Congress considers the reauthorization of provisions of the USA Patriot Act, as well as possible changes to the FISA Amendments Act. By formally affirming the executive branch’s commitment to adhere to the statutes governing surveillance, your administration can provide the necessary basis for a productive public discussion on how we can defend the American people and their freedoms while fighting terrorism aggressively.

“This report leaves no doubt that the warrantless wiretapping program was blatantly illegal and an unconstitutional assertion of executive power. I once again call on the Obama administration and its Justice Department to withdraw the flawed legal memoranda that justified the program and that remain in effect today.”

Forgive me if I’ve missed something, but I thought that those memoranda — principally John Yoo’s Nov. 2, 2001 Office of Legal Counsel memorandum underpinning the programs — were either significantly abridged or withdrawn outright. This is from page 182 of the memoir of Jack Goldsmith, the former Office of Legal Counsel head who worked hard to roll back the most extreme legal contentions of his Bush administration colleagues:

I am not permitted to say much about how Jim Comey, Patrick Philbin and I, with the crucial support of former Attorney General John Ashcroft and others, struggled to put the Terrorist Surveillance Program on a proper legal footing. I first encountered the program in 2003-2004, long after it had been integrated into the post-9/11 counterterrorism architecture. Putting it legally aright at that point, without destroying some of the government’s most important counterterrorism tools, was by far the hardest challenge I faced in government.

Now, of course, significant aspects of the program have been codified in last year’s FISA Amendments Act — of which Feingold remains a staunch opponent. But does the legal architecture of the original PSP still remain in place?

I suppose if it does, one vehicle for calling attention to it — and perhaps doing something about it — is the debate over reauthorizing sections of the Patriot Act that will take place later this year.

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According to notes from Ashcroft’s FBI security detail, at 6:20 p.m. that evening Card called the hospital and spoke with an agent in Ashcroft’s security detail, advising him that President Bush would be calling shortly to speak with Ashcroft. Ashcroft’s wife told the agent that Ashcroft would not accept the call. Ten minutes later, the agent called Ashcroft’s Chief of Staff David Ayers at DOJ to request that Ayers speak with Card about the President’s intention to call Ashcroft. The agent conveyed to Ayers Mrs. Ashcroft’s desire that no calls be made to Ashcroft for another day or two. However, at 6:45 p.m., 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 took the call from 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.

Jack Goldsmith remembers that after a seriously-ill Ashcroft told Gonzales and Card to follow Comey’s legal advice, Goldsmith seriously thought Ashcroft might actually die right then and there. Ashcroft earns himself a place in the patriot’s pantheon just for that. I truly can’t wait to see how Bush’s presidential library treats this incident.

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2. The error rate in collecting terrorism communications. According to the inspectors general of the CIA, FBI and NSA, much if not most of the information collected by the program was unrelated to terrorism. The NSA inspector general found “no evidence of intentional misuse” of the surveillance efforts. Which is groovy. But it still doesn’t tell us how much irrelevant data the program collected, which is a crucial question when determining its efficacy.

3. How much so-called Fruit of the Poisoned Tree resulted. That’s a legal doctrine referring to evidence that has to be thrown out of court. Long story short: if an investigation or a technique to get information is inadmissible in court, no evidence yielded by such methods can be used either. Warrantless surveillance is most certainly a case that would generate inadmissible evidence. That’s one of the issues at stake in yesterday’s al-Haramain filing that I wrote about. And it’s huge. If information from warrantless surveillance made its way into indictments or prosecutions, then those cases are jeopardized. That’s the sort of thing that lets terrorists out on the streets.

Check this out, for instance: the Justice Department “was aware as early as 2002 that information collected under the PSP could have implications for DOJ’s litigation responsibilities under Rule of Criminal Procedure Rule 16 and Brady v. Maryland.” Rule 16 and Brady prevent prosecutors from withholding germane information from a defendant — like, you know, whether part or all of an investigation is based on an illegal search. But what happened? “[N]o 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.” That means that from 2001 to 2004, U.S. attorneys could have been given — from FBI or intelligence officials — information relevant to a terrorism prosecution that they would have no way of knowing came from a poisoned tree like the PSP, and could therefore never have disclosed that fact to defense counsel. And yet the report doesn’t tell us how often that happened.

Relatedly, this is dense but important:

Chapters Three and Six of the DOJ IG [inspector general] report describe how DOJ and the [Foreign Intelligence Surveillance Act (FISA) Court] addressed the impact PSP-derived information had on the FISA process. The DOJ IG concluded that it was foreseeable that [PSP-derived] information might impact the process and that the initial delay in reading anyone from DOJ’s Office of Intelligence Policy and Review (OIPR) or the [FISA Court] into the PSP unnecessarily jeopardized DOJ’s relationship with the Court.

That’s hard to follow, but what it appears to mean is that OIPR, the office responsible for generating FISA warrants, had no idea if information it submitted as probable cause to the FISA Court for such a warrant came from PSP surveillance. OIPR whistleblower Thomas Tamm realized in 2004 that there were special procedures for some warrant submissions that seemed to come from a certain subset of NSA information; he had no idea what PSP was. We still don’t know how many warrants for the FISA Court effectively laundered dirty information into the criminal-justice process.

Update: Sorry, just two more.

4. Any assessment, at all, of the legality of the warrantless surveillance programs collectively called PSP. Just a total dodge on this one.

5. Relatedly: the words “exclusive means.” Like for instance, the inspectors general write: “Prior to September 11, 2001, the Foreign Intelligence Surveillance Act of 1978 and Executive Order 1233 were generally viewed as the principal governing authorities for conducting electronic surveillance for national security purposes.” Well, not exactly. What FISA actually says is this:

The Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

My emphasis. By not mentioning these crucial words in the FISA statute, the inspectors general look like they’re running away from addressing the question of PSP’s legality.

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So what does today’s Inspectors General report say about Gonzales?

[T]he DOJ [Inspector General] concluded that Gonzales, as a participant in the March 2004 dispute between the White House and DOJ and, more importantly, as the nation’s chief law enforcement officer, had a duty to balance his obligation not to disclose classified information with the need not to be misleading in his testimony about the events that nearly led to resignations of several senior officials at DOJ and the FBI. The DOJ [Inspector General] concluded that Gonzales did not intend to mislead Congress, but it found that his testimony was confusing, inaccurate, and had the effect of misleading those who were not knowledgeable about the program.

Gonzales, by the way, was just hired by Texas Tech’s political science department.

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Former Bush administration officials gave the generic statement that the PSP was “of value,” to quote FBI Director Robert Mueller’s rather conspicuously understated judgment. But there’s no evidence given in the report about valuable contributions that the PSP uniquely provided to the counterterrorism fight, even when conceding that most of that stuff is classified.

For instance, here’s the Justice Department inspector general’s assessment:

Even though most PSP leads were determined not to have any connection to terrorism, many of the FBI witnesses believed the mere possibility of the leads producing useful information made investigating the leads worthwhile.

However, the DOJ [inspector general] also found that the exceptionally compartmented nature of the program created some frustration for FBI personnel. Some agents and analysts criticized the PSP-derived information they received for providing insufficient details, and the agents who managed counterterrorism programs at the FBI field offices the DOJ [inspector general] visited said the FBI’s process for disseminating PSP-derived information failed to adquately prioritize the information for investigation.

So: diligence on a wild goose chase. I guess that’s something. What was the value added for the National Security Agency?

In May 2009 [former NSA and CIA director] told NSA [inspector general] that the value of the Program was in knowing the NSA signals intelligence activities under the PSP covered an important ‘quadrant’ of terrorist communications. NSA’s Deputy Director echoed Hayden’s comment when he said that the value of the PSP was in the confidence it provided that someone was looking at the seam between the foreign and domestic intelligence domains.

Again: value in checking boxes, but no value in, like, stopping terrorism. What about CIA?

The CIA [inspector general] determined that the CIA did not implement procedures to assess the usefulness of the product of the PSP and did not routinely document whether PSP reporting had contributed to successful counterterrorism operations. CIA officials, including Hayden, told the CIA [inspector general] that PSP reporting was used in conjunction with reporting from other intelligence sources; consequently, it is difficult to attribute the success of particular counterterrorism case exclusively to the PSP.

For this the Bush administration violated the Foreign Intelligence Surveillance Act and then gutted it, with the help of a Democratic Congress.

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Let me give it a shot. Yoo was a close ideological and bureaucratic ally of Vice President Dick Cheney, Cheney’s lawyer David Addington and White House Counsel Alberto Gonzales. This passel of surveillance programs was extremely close held, and since it went outside a law that’s supposed to be the “exclusive means” for conducting foreign surveillance, having a reliable ally give a legal blessing to the program was crucial. That importance came in stark relief when non-allies at the Justice Department like Jack Goldsmith, Jim Comey, John Ashcroft and Robert Mueller refused to reauthorize the programs in 2004, resulting in the famous midnight visit to Ashcroft’s hospital bedside.

Of course, I’m just speculating. Yoo wouldn’t talk to the inspectors general.

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According to the former DCI [Director of Central Intelligence] Chief of Staff, he directed CIA terrorism analysts to prepare objective appraisals of the current terrorist threat, focusing primarily on threats to the U.S. homeland, and to document those appraisals in a memorandum. Initially, the analysts who prepared the threat assessments were not read into the PSP [President's Surveillance Program] and did not know how the threat assessments would be used. …

After the terrorism analysts completed their portion of the memoranda, the DCI Chief of Staff added a paragraph at the end of the memoranda stating that the individuals and organizations involved in global terrorism (and discussed in the memoranda) possessed the capability and intention to undertake further terrorist attacks within the United States. The DCI Chief of Staff recalled that the paragraph was provided to him by a senior White House official. The paragraph included the DCI’s recommendation to the President that he authorize the NSA to conduct surveillance activities under the PSP.

Then the agency lawyers would vet the assessment to determine whether there was “a compelling case for reauthorization of the” surveillance. Tenet or his deputy, John McLaughlin, would sign it. Then the Department of Justice lawyers would get involved. By 2005, owing to bureaucratic changes, the responsibility for approving this threat assessment every 45 days passed to the Office of the Director of National Intelligence, and the responsibility for drafting it went to the National Counterterrorism Center

By the way, White House counterterrorism czar John Brennan was indeed Tenet’s chief of staff in 2001, but he had moved on before 9/11, becoming deputy executive director in spring 2001. John Moseman was Tenet’s chief of staff on 9/11 and afterwards.

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