OIG report on the President's Surveillance Program

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If you have any interest in the Bush Administration's warrantless wiretapping program, you should read the report prepared by the Office of the Inspector General of the DOD, DOJ, CIA, NSA, and ODNI. This is the unclassified summary of a somewhat longer classified report, but nevertheless there's some interesting information here. The high points include.
  • The President's Surveillance Program (PSP) comprised the Terrorist Surveillance Program (TSP) and still classified Other Intelligence Activities (OIA).
  • The TSP program appears to have included surveillance of "communications into and out of the United States where there was a reasonable basis to conclude that one party to the communication was a member of al-Qa'ida or related terrorist organizations. ... The Attorney General subsequently publicly acknowledged the fact that other intelligence activities were also authorized under the same Presidential Authorization, but the details of those activitied remain classified."
  • The program was periodically reauthorized and prior to each reauthorization, the NCTC would prepare a threat assessment justifying the need to reauthorize it:
    NCTC personnel involved in preparing the threat assessments told the ODNI OIG 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 IC personnel involved in the PSP as the "scary memos."
  • The Administration's legal justification for these activities relied heavily (it seems almost exclusively) on an analysis by John Yoo arguing that FISA couldn't constitutionally restrict the president's Article II wartime intelligence gathering activities and that these activities didn't violate the 4th amendment.
  • After Yoo left DOJ, new DOJ officials Jack Goldsmith, Patrick Philbin, and James Comey became concerned about the adequacy of Yoo's analysis. The timeline here is complicated but ultimately a standoff ensued between DOJ and the White House with the White House on the side of continuing the PSP. This was ultimately resolved, as far as I can tell, by the White House effectively telling the DOJ that the President had determined the position of the executive branch. Here's Albert Gonzales:
    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 alterneative ways to achieve effectively the goals of the activities authorized by the Presidential Authorization of March 11, 2004, the President has addressed definitively for the Executive Branch in the Presidential Authorization the interpretation of the law.

  • Despite the above, the administration ultimately modified the program, presumably along lines more acceptable to DOJ.
  • It's extremely hard to assess the extent to which the PSP was at all useful The OIG reports people fram various agencies calling it useful, but mostly as one tool among many, and there doesn't seem to have been any real attempt to quantify the importance of the program.

The second and sixth points will be especially familiar sounding to people who remember the extensive debate about controls on cryptography: extensive claims about how the dire consequences of not being able to listen to everyone's communications coupled with extremely limited evidence that that capability was actually that important. I'm not qualified to assess the legal questions about whether this program complied with FISA and/or the Constitution. However, obviously this program does have some impact on the privacy of US Citizens (and "reasonable basis" is a pretty low standard), so it would be nice if there were somewhat more evidence that that was a tradeoff worth making.


What evidence is there that the tradeoff is *not* worth making--or even that "this program does have some impact on the privacy of US citizens" in the first place? The report quotes numerous officials agreeing that the PSP provided information useful to counterterrorism efforts, although how much was unclear--primarily because the information obtained via the program was given only limited distribution, and even then with its source carefully obscured. On the other hand, I haven't seen an iota of evidence that a single US citizen was even subjected to dissemination or storage of information derived from his or her private conversations--let alone that a single US citizen was materially harmed in any way--for any reason other than being involved in illegal activity such as support for foreign terrorist organizations.

I don't think many people would consider the possible identification of such criminal supporters of terrorists as an "impact on the privacy of US citizens" worthy of any concern at all, let alone enough to cast doubt on the value of the PSP "tradeoff". And if the PSP had any more substantial privacy impact on Americans, I have yet to hear of it.

Yes, Dan, I know you don't think that having your private communications exposed to
random people inside the government without your knowledge and without any real recourse constitutes material harm. As it happens, I proceed from different premises. And since the government is in the
position to (1) decide who is subject to surveillance (2) controls what information is
disclosed about such programs and (3) has historically abused such powers in the past
(cf. Hoover, J. Edgar) it seems to me that it's the government's burden to demonstrate that the tradeoff is worth making. Your complaint about not having seen "an iota of evidence" is particularly
ludicrous here in view of the fact who is subject to surveillance is itself secret.

Eric, these are exactly the sort of fearmongering hypotheticals with no supporting evidence that you'd be heaping ridicule on if they were being put forth in the name of security rather than privacy. Opinions differ, of course, but I personally find assertions by top government counterterrorism officials that the PSP would have prevented 9/11 and continues to be useful in breaking up deadly terrorist plots (a real and immediate threat, given that a number of them have been exposed and widely discussed in the media in the last few years), somehow more compelling than unsupported assertions by Eric Rescorla that the PSP will lead to repetitions of the FBI's use of wiretap information fifty years ago to embarrass or harass people.

Dan, I couldn't have found a better example of fearmongering hypotheticals than you have presented here.

Frankly, I'm amazed that you're willing to take the unsupported word of a group of people who (1) have an institutionalized interest in being able to wiretap people and (2) quite possibly face legal jeopardy if the country decides that their behavior wasn't in fact necessary. But I guess any evidence will do you in your neverending quest to be contrarian.

Eric, I don't necessarily take their word at face value at all. I find what they're saying as a group to be fairly plausible, the more so for being articulated fairly consistently across multiple agencies, some of which no doubt have at least as much institutional rivalry as mutual collegiality with each other. And I consider it doubtful in the extreme that all of the people who attributed some value to the PSP would be in legal jeopardy if it were eventually determined to have been unnecessary (unless the political subversion of the legal process has gotten far worse than even you've hypothesized so far). But I fully acknowledge that, as you say, their shared interest in broadening the surveillance powers of government agencies may (in some cases, at least) lead them to overstate their case. So I'm comfortable saying that though there's some evidence that the program actually helped save lives, it's also somewhat weak and vague, and therefore that the case for the program's effectiveness can't be considered ironclad.

Now, where's the evidence for the *risk* associated with the program? As far as I can tell, it consists of nothing but torrid hypotheticals about what such agencies *might* think to do with their (extremely limited) eavesdropping power, based on a decades-old instance of a completely different government organization misusing its (far broader) wiretap power. (And as far as I know, not a single life was lost as a result of that abuse. In fact, my impression is that its major effect was to enable Hoover to blackmail politicians into continuing to vote for large FBI budgets.) Compared to the case for the program's effectiveness, I'd say that the case for its dangerousness is paper-thin.

Of course, it's your prerogative to believe that even this merely hypothetical (and in my view highly implausible) risk that a bureaucrat might one day be able to embarrass or manipulate politicians as a result of the monitoring allowed under the PSP, outweighs the slightly more substantiated (though still far from certain) risk that dismantling the PSP might cost multiple lives as a result of unprevented terrorist attacks. But I'd hardly call the opposite assessment "contrarian". Indeed, recent polls suggest that a solid majority of the population of the US (and, I'd bet, just about any democratic country on earth in the same situation) would take my side, not yours, in this debate.

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