3
Fl
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..

 

 

 

July 2009
(U5) Preface

(U) Title of the Foreign Intelligence-Surveillance
:ACtrAmEndments Act of 2008 required the Inspectors General
(res) of the elements of the IntelligenCe community that
lparticipated in the Presidentfs.SurveillanCe Program (PSP) to
'conduct a cemprehensiVe-reView of the Pregram. The res of
the-Department of JuStice the Department of Defense
(DOD), the Central Intelligence Agency (CIA), the NatiOnal
security Agency (NBA), and the Office of the Director of
-National Intelligence (ODNI) participated in the review
required uthr 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 House.Committee.on the Judiciary,

I (U) ?Because many aspects of the PSP remain classified,
.and_in order to provide the GengreSSiOHal committees the
complete results of our review, we have prepared this
.c1assified repOIt on the PSP. The repOrt is in three
volumes:

9 ?Volume I summarizes the collective results of the
review.
0' Velume II contains the individual reports prepared
and isshed by'the.DoD, 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

     

- ed From: 1?52

Dated:

   
     
      

20

 

 

 

 

 

 

 

 

 

 

f3?! git. ang g' ?g i?p? I  "a f? d?  f3  95?: 
?gw LJ?;me 1 unawn??i gum;x

    

 .

-?lenn A. Fine. Gordon Heddell ?e
Inspector.General Aeting;InspeCtor General
Department-of Justice- Department Of Defense

 

 

;Vi??mwwg??gm?
Gearge?Ethrd 
Acting InSpeetOr General Inspector General
.Central Intelligence AgenCy Natienal Security Agency

 

 

 
   

 

'1  
4%;mMazerU
Inap?c or General

Office of the Director of
National 1hte1lig?nce

m?we?cewwe


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-D gem-gel  .eigeur?te, out,
(U) Table at Contents
 Ii-qnni'I-g' ?gauge-?
(Mi?Stem ..-.  
.. 
THE PRESHDENTE SURVEELLANCE PROGRAM  

Nationaiseea my Agency. Countertertorism .Ettoirts Poor-to

 (unsung; n3. ?gunning!
idea initiatiy Used Existing: Authorities to. Enhance Signals
After ?the September 2091;

Terrariet Attacks 
(U) Mega Explored @ptione taimpmve Sioux-ti"; Collection and
Address tnteitigenoe Gaps on TerroriStzTarg?ets.? "6
(U): ampedimentsto SEGHNT 'Coiieption Againet?Termriet Targets
Were: ieca53ed With. the White .HouSe ..-. .. i?
(U) Authorization! of?tirne Presidi?entis 
aieiNT Activates Authorized Uhtterthe-Progjtam  
(AU): Content of the .Preeit?entiai Authorizations and] 
Department of JusticesCertitication asto Fotm and Legatity .9
(U) The Threat Assessment Memorandums Supporting
Presidential Authorization of the Program .. 11
(U) Eariy Revisions to the Presidential Authorizations .. 111]
(U) Bod @ftioe of [Legal] Counsel Memorandums 'Soppon'ting
Legaltty ot the Program "1?12
EMPLEMENTATHQN OF THE SURVEBLLANGE
.,  
1U). NBA impiementati?on "116

 
 

 



 

 

"metaphor-1e 

 

Co?htehtl?ot?eottom and] Anaysie  

 Ff    Tetep?hony and] 

 ?u um.- 

From the 

 a . "2.11
 NSA Menagerie? Structure?ahd ?vers?ght?tthe President's
Surveillance Program  

(U) NSAMahegerneht Contro?s to Erasure Comp?ta?nCe With

Presidera'ttenAuthorizationsm  

ofthe Program a ?'24
Access to the President?s Starveiflance Pregtam  

(Ll) Congressional! Erie?ngs don-the Program-m" ?12.6

 Foreign ?n'te?ligenee SurveitlarrceCourt Brie?ngs onthe

Program 
(U) FBI Participatton in the Pr?esidentsSurveiBlance Program ., 
(U): CIA Participation in the President's Surveillancde Program: ?.30
NCTC Participation in the President?s ?SurvetllencePI-ogrem .. 32.

(U) The President's Surveillance Program and the Foreign
?htelligehce' Serve?itlahce Court .4333

(U) :DisCoVery Issues Associated With the President?s
SUrveilIance Program ?35

(U) LEGAL OF THE SURVEELLANCE

PROGRAM (2003 - 2004Over th
re?ection?

   

 

(U) A New Legal Basis for the Program Es Adopted .. 

Department of Justice Of?ciants Convey Concerns About the I
Program to the White House .. 39

(Ll) con?ict etWeern the Departmeht'ot Justice and] the White
House Over the Program .., ., 

 

 

 

White Hc?ause Counsel certifies Pres-identia?

 
   
 
 

 

ust?c?e Cs urre'rr

      

- Resrr'?mie?s on: Asce'sst?e- rh'ex?P'res?it??ent?s Survei'?l?ance I
    

err Pessrsemrs [seesaw

reserem- INTELLHGENCE ac?r

 

   

.. ., 
Enterner??eraclata Correction Transiriorr fro.
Operation Under-Has Authority ..  
:Depart'menr ofJusrice Notices ef-Gem?plliance anicients "53
a  3, 7 TelephonyM'eradara Ceiiecrmn Transrtien to I
@p?eratienUnder?FHSA Aurhcrity .-. .i ?We-754!-
. Content C'o?lectien Transiton ta Operatacr?a Under
FESA  
IMAGTDF THE rr?EerENTs 9N .
EFFQR-TS 60*
(U) Seniorilnteii?ge'nCe Community OfficialsBellieveiThat the
Presi?dent?ersuweillamce Program [Filled an Hinre?ligence Gap "641
(EU) iffi'wlt?y the Empact of the President?s 
Surveillance Program  
(U) Impact of the President?s Survei?iance Program an FBI 
Connterterrorism E?or?s r. "Bil
(U) FEE Efforts to Assess the Va?ue ef'the Program .. 52
(U) FEE Judgmenra! Assessments of the Program "52;

(U) ?m?pact of the President?s Servei??arrce Program err BEA
Counterterrerism Operations 

(U) The 030A Did] Not Systematicar?y Assess the
Effectiveness of the Program .-. .. ".63

(LB) Several] Factors Hinderedl CHA Ut?rizaricrr or the [Program 641:

 

 

 

nlm'pacfofmh?vPresidem?s Surv?i?lan?e 
 :i'535

(U) ??ou'mer?ermrism Operations :S?upported by the President?s 
 




I  

mmgr- Ill; nan! _fi\m (Ext
_1 .

 

41..
GE
CD
4 I

(U) The: President?s. enWet??anee 'P'regramw

tilt)? ne?areceuctmw

j;    i, j' ?lresponse to?f'the tartarist; attacks Q?fll. September 2001,0111
doctchet .2001, President. GeorgeSW. Bushiissned a Top Secret authorization to the 
Sieicretary-ofDefensc directing that the of the.
National Seour-ity' Agency'ENSA)? be used ?to; detect-andj?prevent thither attacks in. the
United-States. The Presidential. Anthorization stated?tliat- an eXtraordi'nary emergency
taxi-sterlipeintitting theuse-o'felectronic surire?illance within the-United Statesrfor
countert'errorism puiposes?vithoutra under certain circumstances. Fer More
than ?ue?years?, the Presidential Authorization was renewed at 3t} to 60~day intervals-to
authorize the highly classi?ed NSA surveillance p170 gram, whidh isreferred? to throughom?
this, report as the; Eresident?s? Sm?srei'llancePto (ESP), 1
 Under" thePresidentialAuthorizatiens, the NBA intercepted the
content-of inte1nationa?l telephoneand?il?ternet communications-of both US. and non?US.
Inadditien, the co?ected telephone and, Internet-Inet?adata??
communications: signaling j'iilifoimationeshowhig cont'actS-hetween andarnong telephone.
numbers-and Int but-netincludihg HIE-contemsof the
communications

  

   
        
   
 

   

--  
anal?ed tbyn?the NBA embers-of thehitelligence Community (EC), to
generate thitelligence reports. These reports were centre the'Eederal Bureau of
Inyes?tigation (FBI), theiC'ennfal Intelligence. Ageney other intelligence
o'rganiZations. -

 The-Scope of collectionpennitted under thePresidential Authorizations Varied
over time In stages between July 2004 and January 2007,. NSA ceased collection

aetivi?es? under ?PI?SSidential authorizationaa?d resumed them under four separate court
with the Foreign Intelligenc?. Suwaillance Act of 1.978 as
amended 

(U) Scope- ot the Renew

(U) Title HI of the Foreign Intelligence Surveillance Act Amendments Act of 2008
(PISA Amendments ActJ-msign'ecl into law 011 10 July NOB?required the inspectors

 

 The coirer tennNSA uses to protect-the President?s Surveitlance Program is 
2 (U). Unless otherwise indicated, references to PISA in this report are to the statute as itexisted prior to being
amended in 2008.

 

.i



2 ll

general of the elements of the that participated in the PSP to conduct a ccinprehens'iVe
review of the program? The (Act required that the review examine:
 call oflth'e facts neceSsary to-rdeseribe the establishment;
implementation, product, and use of the product-ot?the?Program;
 :aCcess;to. Clegal reviews of the Program- and access to information-
about the Program; 
communicationswith, and participation or; individuals-and. entities:
in theprivate sectOr re?latedito the Program; 
(D) interaction withthe Foreign Intelligence SurveillanceCour-t and.
transition to court Orders related to the Program; and
:03) any other matters identi?ed by any such Inspector General-that
Would enable that Inspector General to complete a reviewef the
Program, with respect to silchDepartment or element?

(U) The InspectorsGeneral (1013) of the Department of Defense (DoDLthe Department

the CIA, the NSA, and-the Of?ce of the DireetorgofNatiOn?al Intelligence

 conducred the review-required under the Act. ?Thisrrepott' summariZes the;-collectiVe
results efithefI?Gs' review. Conclusions and resommendationsin thisr?epOrt that are attributed
to aiparticularIG should he understood to repreSent that opinion. IndiVidual reports
detail. the results of each IG's review and? are annexes to ,thisrepert. All of the reports have
been classi?edin? accordance With the program's classi?cation guide, which was revised
during our review and re-issued on 21 Janualy 2009.

(U): Title Amendments Act also requiifeCI?tliat the reportiofany
relating to by the D01 Of?ce of Professional
Responsibility (CPR) be provided to the and that the ?ndings and conclusions?f

.s'uehirivestigation be included in the D01 'IG'S-i'eview. OPR intends to review whether?any

standards ot?profe?ssiiorial conduct Were _vio'lated in the preparation cfthe ?rstseries :o?f?legal
memorandums supporting the PSP. OP-R has not yet completed its review or provided its
?ndings and conclusions to the DOT IG.

(Ll) Methadology'

(U) During the course of this review, the pa1ticipating IGs conducted approximately
20 0. interViews. Among the individuals We interviewed Were: former White House Counsel
and Attorney General Alberto R. Gonzales; former Deputy Attorney General
James Comey; FBI Director Robert S. Mueller, former Secretary of Defense

 

3 (U) The President?s Snrveiilance Program is defined in the Act as the intelligence activity involving
cemmunications that Was authorized by the President duringthe period beginning on 11 September 2001 and
ending'on '17 January 2007, including the pregram referred to by the President in a radio address on
1?77DEGemhcr'2005 (commonly kaovm as the Terrorist Surveillance Program).

 

 

 

Donald??, Director, Principal Deputy Direetor of National.
hit.elligenee,,.and  Director M-iChael V, Hayden; former Director of antral Intelligence
 and  Director Porter I. Goss; SA Director Lieutenant General
  Alexander; feirrner Director's of National Intelligence 61111- D.:Negroponte and
 MeComrellgiandformer.National Counterten?orism Center (NCTC) Director
John 0,13rennan Certain other persons who had sign?i?eantxinyolveinent in the either
declined ordidnoit respond to our- IBqu_ests-f01? an interview, iheludingformer?eputy
?Seeretaryjof Defense Paul D.. Welfowitz; former Chief of Staff-t0 :PresidentIBUSh
AndrewiH.. 'Card';fDaVid S. Addington, fenner Connsel' to Vice President: Ribhatd B. Cheney;
fonher-Attorney General John D. Ashcroft; former Deputy ASSistant Attoi'ney General
John Yoog; and former DCI Gearge I. Tenet.
Wei 'erviewed former-SA

      

  
  

3 Well aszle?dershl-p

eaterate SID we

 

and current. and farmer- sealer NCTC of?cials. We also interviewed officials
antl'foiQe of general counsel officials fr-on?rthe participating Organizations who Were
invelved.in?legal?revieWS of the PSP and/or had access to the memoranduins supporting the
legality: of the P8P. 

  We examined thousands of electronic andhardeopy documents, including- the
PresidentialAuthorizations, terrorist threat assessments, legal inemorandums, applicable
regulations aindelieies, brie?ngs, reports, correspondence, and notes. We obtained-access
teas FBI database of PSPederived leads that had been disseminated-to FBI ?sldof?ces.
to cen?'rrn information obtained'throughinterviews and to assist in our
analysis: ofFBl investigations that utilized information. We evaluated the?justi?lcatione
inolnded in thexrequests. for information (RFIS) submitted by the  to the NSA to
deter-mine whethe' 1 they were in aceordance with program guidelines. Reperts- of prior
reviews. and: investigations of the PSP conducted by'the NSA were also utilized in. our

 

b1,
b3,
b7E

 

 

 

 

 

at): 
PRUGRAM

Nation'ai'l?eeutity Agency .conntenerrertem
E?e?ttey Prior to:- 1?1. Septem ber 2001

e,  ?5 For-mcre'thana decade before thetertoi?ist attacks of ll September 2001,
NEAii'rtis capabilities to-IC
requirem?ntsg' The NSA, SID, led these-efforts. 
was au?ltjl?izfeciby Executive Order (192.0,) 123.33", ?UnitedrSz?ntes ?ttelligel?tCE'ACffoffGS,
4?Dece1nber 1981, as amended, to collect, process, and disseminateSIGlNT- 
forfci'eign intelligence and comiterintelligence purposes in accm'd'ancewith'DCI guidance
 the-conduct of military Operationsunderi the guidance of the: Secretary of
Defense. Itcis. the. policy of US. G'GVernment entities: that conductSIGlNI actiVitieS- that
they will collect, retain, and dieseininateonly fereign communications: In septeinheri
2001, compliance procedures defined foreign - communication-s
least one the United States, entirely
among foreign powers, or communications betweena lforeignpowe?rand of?cers 0r
employees. eta foreign power. All other communications Were considered domestic
NSA was-not authorizedunder-ED. 12333 to collect communications
from a? wire in the United States without a court order unless thecommunications
originated and terminated outside the United States 01? met? applicable encepti?ons tothe:
requirement, of acourt order under ISA.

 50 "1801', et seq?., was enacted in 197:8.to "providellegislatitre
authorization and regulation for all electronic surveillance ?conducted with-in the United
States. for fere'ign intelligence purposes. FISA antl10r12es the Federal Genemrn'ent to
engage-in electronic surveillance and. physical use pen register and trap and
trace devices, and to obtain. business records to acquire foreign intelligence information by
targetingfo reign powers and agents of foreign powers inside the United States.4 As a
hfgeneralrule, the FISC must ?rst approve an'appliCation for a warrant before the
government may initiate electronic sUnVeillanCe.

  . Pjn'Or to the PSP, SA anther-try to nttercept foreign collunll'?icaf?ict?st

included the Director, authority to approvethe targeting of cetnmuni?catiOns with

one cotnnlunicant Within the United States if technical devices could be employed to limit
collection to i ii a
United States,

    
  

 

4 Thezterm "pen register? is de?ned in 18 3512:?:r as a device or records or decodes
dialing, routing?, addressing, or signaling; transmitted by an instrument or facility from which a'wiresor
electronic communication, is transmitted, provided, however, infcn?naticnshali not include the. contents
of any communication. The term "trap and trace device" is de?ned in 18 H.310. 3127 ?15.21. device or process
wliicti. captures the incoming electronic or other impulses Which. identifytbe originating number or other dialing,
routing, addressing?, and signaling reasonably likely to'identify tti'e'scurce of a wire or electronic.
communication, provided, however, that such. shall not inc-{tide the Contents ofany communication.

 

 

 
 
    
 

  

 ..   ..      lfteshmcal was 0011ec-ion', 1ecollection-reg royal-by the Attorney General, The?iDlirectonfNSA
except When the collection Was o'tlietwiSe regulated, for
example, under PISA for communiCations collected from a wire in the United States.

 
    

 

NSAEt?iitiatly Used EnietinglAu?EhDrittes to
Enhance- Signals- lnt?etligence collection
.nn?er- the. Septem Terrorist Attacks 7.

as royed?th?e?task1ngefthe esp
h? was an aouresswesuse ?o

 
    

Hayden's 1:4 septeinber 2001 approval ineinoran um 
targeting?wajs to facilitate analysis/Contact chaining. 5 .NS-A Office ofGeneral
personnel concurred with the -_pr0p03ed activity, but provided-a
handwritten note to Hayden stating that chainingwas permitted only on foreig'lr'numhers
ldbe chainedwithout a court order. Collectionofthe centen-t
a  as not addressed inthe memorandmn; cheiref; other
dez?uitientano?neness that and SID personnel understood that Hayden also
approved centent?collection and analysis. NSA OGC 
a?ctienWaS a-lanul? exercise-of his authority underE.O. 12333. {In to
"Gr neral Counsel Hayden had deciv . ..  "ill-'1? that

    

      
 
 

  

      

 
    
 
 

  

 
   

ieuld'be presumed to be of foreign intelligence value rand-could be provided
eyden told us that?his actions were a ?tactical decision? ;and' thathe 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 Heuse Permanent
Select Committee on Intelligence on his decision to expand operations under ED. "123 33
and informed members of the Senate Select Committee on Intelligence by telephone.

 

 

 

Hm

 

 

. Eigp?org'ed @p?ions'to?mprow
mom?Coliseum-mam Address
?n?ee??genca Gaps om'TeH'rorfs't Targets

 meeting at thaWhit'eHougci at Which Tenet;

 cXpand?d SIGINT operations T?to the Vioo Erosidont. Accordmg to;

during the meeting the Vice Pres-idgntasked 1132111310 was:

db?igigewry?iing:possible to preventmlother attack;  Vito?Prosie?t speci?cally- asked

Tenetifpould do :mo'ro.? Tenet then. discussod thematterwi?if?ayde?; Haydon told.
.doneWi?thin tax-Listing:authorities; In: follow-up-
tal?ophono- collver? ation, Tenet Hayden wha'f' the NSA could do if it? Was provided:
additional authorities, ?To formulate a response, Hayden,th with personnel, who
Wane alxeady wOrkingto?ll to identifyadditiorj a1 authorities torsuPpmt
SIGINT collbotionao?vitios that would bogoperationa?y- useful-and'teohnically faasiblo?, In
P?l?m??n - discussions ?focuS?Cd 011 how NS migl'it bridge tho; ?5inte1'11ational gap,? 1 La,
collection ofifl1t61:11atiollai COmmunioations in which one communicant was within the

?Ujr?ijitedlis'ta't?st

'Ill?il?d?YS ilmnedifatelya?er 11 Septhber 2:001,- iths: HousejiPamlanent Salem:
Into?igence asked NSA forftoohnioal' assiSta?n'oe in 
Eilil?i?ld?FIS?Aij giVe the-Presideh? au?ior?ityio coud?ct Electronic:suryei?ano?Withoum
court-order to obta?tl foreign intelligence hafor1?11ati?on. On 20=Soptiember??oo L, the. NSA

'Genera'lf?ounselwrotem White HouSe- "Counsel Goma?iles asking if-thegpl?Opdsed

amendment had- merit. W6 found no: ro'cord of-arrogponse to the NSA Gonoral
CounSol?s Writi?gand could not determine Why the proposal to amend PISA was not
pursueda?f that time;

Hayden saidthat, in his professional udgment, NSA oO?uld not 
intelligence gap'using PISA. he process far obtainingFISC ordei-s?was it involved.
egtonSiVercoordina?on.and separatologalaud policy rovieWs by severalragenoies;
A'ltl?iough?FISA'S emergency authorization provision penni?od 72' hours-Of Surveillance
befotoobjtait?og a'court ofdey, itdid? notallow the govermnont-?to uni?e?algesm?if??lance
immediatol' Ratheg the'Attomoy General had toonsure that ems: eno surVeill?ance

 

 

  

 
   

?(1J0tmsedteesetq eaeINrcotecnon
., gi?eai?inet'teri?eriet 
. 1 

 - a ..  i,ay-dsn-Issalled thatattetconsultins with 
FISAconshfained NSA collectionoizl" carried? on. a
Udit?dStates. . Hayden explained that NSAi-cduld tact-collect from-5a Wire in the
order, content jer:n.1etadatafrom 
oiigimted'and/or terminated in the United States. Hayden also said that communications
ine'tadatado not have the same level-of constitutional protectionas the content of
communications :and'th'at. access to metadaita concerning: Conimluiications having One end
in. the-UnitedrStates would signi?cantly enhance Hayden
sogge'sted-tliatithe ability. to eel-loot communications that originated-m: tetniinatedf'io the

United-States" without a-court orderwould agility. After two
addi'tionalj-mEethiggs-with Vice President Cheney to discuss .fmtherThOW'NSACollection
could he estpanded along? the lines: described! at the White- I~Iouse meeting, the
Vice ?residenttold Hayden to workout a solution with?Couusel to the Vice PreSident
Detonamngeu.

 

gm)? Authorization- urine
'PfIfES-ident'e Serveiltance Program

I a . _According-t0 Hayden, Adc?lington drafted the ?rst Presidential
Aether-13510011of?the-PSP. Hayden -c11a1'aCterized. hires elf as. the ?subject matter expert,?
and?he saidfthat no other SA personnel, inch'Iding the General. Counsel, pai'ticipated in
authorization. Hayden also said that personnel had. not been involved in
his discussions with concerning Presidential autho'riZation ofthe PSP. The 
came into existence-on 4. October 2001, when President Bush signed the Presidential
Authori-Zation drafted by Addington. The; authorization was entitled: Presidential
Aiztlioi?izotz?mzfor Speci?ed Electronic: Surveillance Activities during a Limited Period to
Detect-and Pr?vent Acts ofTerrorism within the United'Staz?es. Between 4 Oetober 2001
and 8' December 2006, President Bush signed 43 authorizations, exclusiVe of modi?catic'ms
and other program?r.elated memoranda to the Secretary of Defense.

(U) SEGINT Activities Authorized Under the Program

 The 4 October 2001 Presidential Authorization directed the

Secretary of?Defense to "use the capabilities of the Department of .Det?eiise, including but
not: [limited to the signals intelligence capabilities of. the National Security Agency, to
collect foreign intelligence lay-electronic surveillance," provided the sur-Veiilance was
intended to:

 

 

 

 

 :35" one: ?t ?iQ Fa . ti 'ti I'rm'ij
.r spam-1w 134:. .t on) - I ~11 ux.

acetate. 21 communication not limited to .a Wire:
=comirf?unijeation carried into communication IS a .?groupeng
aetiyitiesxin preparation therefor, orran agent of such a group; or

(is) acquire, with respect to. a ceinmnnication, header/t'outer/addressing?
type information, minding data; but
not the contents of the communication, when at least one party to
is. outside the United States or partjr to. such
communication is known. to bee citizen of the United States,

   
  
 

content


 
  

hiding thoSe tot-from: presetusweiy tint fin-t is: rare state's",

'Wliere1jrobahl.e. cause exi?sted'to believe-one of the cominrmicants was! engaged in;

international terrorism. The authorization also allowed the NSA to acqttitfej.telephony-and
Internet inetadata Where" one-end of the communication was outside the United States or
neither:corrununicant was [crown to bea U-.S. citizen. For telephone calls, rnetadata
generally referred to ?dialing?type information" (the originating and terminatingtelephone
numbers, and the date, time, and duration of?t'he call), but not the content ofz'the call; For

  
  

   

TEheSec-retary of Defense 
8' October 2001 - . iorization to on
targets-related 5' internat' nal ti?l?O? m? Because the suWeillance-was
conducted in in nded i communications into or out of the
United Statest and a of these communications was to or from per-sons in the United-
States, the-surveillance otherwise Would have required a FISC order. NSA was also
alloWed to retain, process, analyze, and disseminate intelligence from 
acquiredunder the Presidential Anthorizr-rtion.

In addition to allowing the interception of the content of

communications into or out of the United States: paragraph ofthc first. Presidential
Authorization allowed NSA to intercept the content of purely demesticcommunications.
"Hayden told us hedid not realize this until Addington speci?cally raised the subj ect during

   
   

 

Although the authorisation ?was not limited to the signals intelligence capsbliities of the National
Security Agency? DoD?s operational involvement in the PSP was limited to activities undertaken 

 

 

discuss reneWiogthe.authorizationo According-to I?iaydeh,sheltoIdAddirigton
collect?domestio communicationsheoaose'NgA 'ista? foreign.
intelligence. agency; its gi??aSiI'uCllEe did: notsup port do'messiecollection, aiidThe: would
require. eucli-arhig'li ?evicleotiary stagi?darcl'to justify intercepting purely demostic
communicationrthot such cases mightjust as well go to the FIS 

to) Content otth?, Pre?'tdentia! Authorizations
and, 
as toFo?tm and Legality

 

-   Each of the Presidential Authorizations moludedal?nding to the? effect that
terroris t'groo?pstof global. reach possesse'd?the intent and: capability-to attack the United:
States,.that.an extraordinary emergency continuedto these-circumstances
'eoostiioted an urgent and compelling govemmentalzioterest permitting electronic
Surveillance within the United-States foreounterterrorism purposes, Without judicial
court.orders. The primary authoitities eited for. the legality oftheielootronier
staveiilaooe and related activities. were Article  of tlie..Constitut-ion= and?the
183'8ept'e'1?r'iberi?2001 Authorization for Use.ofMilitary-Ferocioth Resolution 
Theiaothorizations '?uther provided that an}r limitation inlE?. 13333 or any other
PreSideo?al directive inconsistem with the Presidential Authorizations Shall not apply, to-
?i?eextehtgof?re inconsistency, to the electronic the PSP, 
E?aoh authorization also included the President's cleterminatiot1-that1 to 
?thie?s'eore'cy' necessary to" "cleiedt and prevent acts of terrorism against the 
the?Secretaty of Defense was to defer noti?cation oi?thetauthorizations and the activities
dei?ed out purSuant to them to persons outside the iExeCutiVe Branch. The President also
noted?hisihtention to inform appr0priate members of the Senate and the House of
Representatives of the pro gram "as soon as I judge that it can be done consistently with
defense needs."

 Ashcro? certi?ed the ?rst Presidential Authorization as to "form and
legality" 0114 October 2001. According to NSA records, this was-the same day that
?ASheroft was read into the PSP. There was no legal requirement that thePresidential
Authorizations of the PSP be certified by the Attorney General or Other Do] of?cials.
Former senior D01 of?cial Patrick F. Philbin told us he thought one?purpose of the

    

 

 

the D01 certi?cations sewed as of?cial con?rmation that had determined-that the

activities carried out under the program were lawful.

 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
Authorizatioti for three reasons. First, NSA was being asked to do somethihgit had 1101:
done before, audit Was important to assure the NSA that the Attorney General had

 

 

it?)

   

1:11 ?regi mivb?itt?tghe value 9 ?ros ectiVetyH
.  13 
. reviews of 'thepro?grani.

 
   

 

 

  

Onssz"?"?wettmney I I. eappreVali'of
1?1? theevent inspector

  

Third; for ?purely? political coi

 

 The. Presidential Authorizations wereis?sued- at?intervalsof 3031's
.60 says; Bradbth aid that the. main reason fol" PB?oidi?cially -1'eauthori2ii1ggtlie pregnant.
was to ensiue that-the Presidential authorizations werereviewed??eqnentlyuto assess the:
1irf0gr_ainfs7'val11e and ,effeetiveness. Aetheperiod fer drew
to ?aelose, tljteiDCIlprepared a threat assessine?ntmemoi'anduni for the-President. describing
.thecur'rent state of potential?ter'rori st threats to the United States. I

(U) ?TheThreat Assess?t?n?ent Memorandums 
Presidential Authorization: ofthe Program.

 FreinD'ctoher 2001? to May 2003?, the CIA prepared the-threatassessment 
nietnorandnr?ns that supported Presidential authorization andlperiio'dio reautliorizatiOn' ofthe
PSP, The nieinorandums documentedthe the US. homeland and to 
.interestS"aer?d from alsQa?idaand- af?liatecltejrrorist organizations. Tlie'ifirst?threat
aszesSmentineinoranduniw?ze mama-Ba: 

ilwa's on 4 "Combat 2001:..7 SuBSeqnent- threat asseSsment 

wegappsepaiaasvery 30. to 60.-days.-to correspond withthe President's reautlioriaat,ioiis?;
l'  TheDCI'Ehief ofSta?f? John Moseman; wasuthe-GIA focalfpo?inttit?oi?
Accordingto Moseman; ?lietrlireeted the
prepare] Objective appraisals O'ftlie-
7_ on threats tozthe' homelandiancl tedoeumeut
those-appraisals in a memorandum. I nalyst?s drew upon all sources of intelligence in
preparing their threatassessments. - as of the inernorandums fo?eusedtpri'rnarily oil-the
current threat Situation and did notroutinely provide 
reported threats or an? assessment of the utility in addressing previously reported
threats. I I

 _~Aiter  cenipleted its pertion ofthe meinoranduins, Mosema?n added. a
paragraph at the on the Inernorandurns stating that the individuals and organizations
involved in global terrorism (and discussed in the niemorandurns) possessed the capability
and intention to undertake ?nth er 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 DOD, including but not limited to
NSAE SIGINT capabilities, to collect foreign intelligence by electronic.surveillance, The
paragraph desen'bed the types of communication and data that would be collected and the

 
 
   
  
 

'Curret terrorist threat, foeasrng pri

   

 

 Thetitle of the threat assessment memorandtinis was changed toT/rs Global War Against Terror-rim in
Line 2002

?a

?t

a
I

circumstances under widen they could be collected.- The draft threat assessment
randums were reviewed by CIA Qf??ce'of General-counsel attorneys assigned to
'1dj.CIA,rtCt.i1ig General Connsel Deputy General CounselL JotntA. Risen.
Risa i. told us that thedraft mcinorandums? were. generally srfLE?oient, but there were
cecasionEWhen, based on hiszexperiencewith previous memorandinns?, he thought that
~draft-memorandme contained insufficient threat infonn?ation or did not present a
i case-'forreanthorization of the PSP. In such instances, tRizao Would request
 ironideadditional available threat information or make revisions to the'draft'
memorandunis.
 The threat assessment nietnoi'andunjswere the?nsigned bythe DUI and
forwarded-to the Secretary of Defense to he co-signed. Tenet signed. most of-the threat
memorandum prepared-during his tenure as CI. There were no occasions when the DUI
signature from the threat assessment memorandums, The
tlueatassessniem memorandum were reviewed byDoTs OLC to assess whether there was
?a ?sntticientfactualE basis demonstrating a threat?of terrorist attacks in the United States rm-
itlto eonthruccto be reasonable under the. standards. of the Fourth Amendment for the
President'to [continue] to! authorize the warrant-less in the program.
 then-advisedthe Attorney General Whether the constitutional standard of
ateaSOHableneSS.hadabeen met and whether the Presidential Authorization couldhe-cr?ard?ed
as: toiforinz andzlegality, After-- review and approval..as to ?01111 and legality? by the Attorney
were delivered to the White House. to be
attached to thePSP reauthorization meinorandums signed by the President.

 Re sibility for drafting the threat assessment memorandums was
transferred from  to-the newly-establishedTerrorist. Threat Integration Center in May
2003-, This was retained. by TTIC's successor organization, CTC. The
DCI Continued to sign the threat aSSessment inernorandums through 15 April 20.05.
Subsequent were signed by the Director of National Intelligence or. his
designee.?

   

    
   

 

(U) Early Revisions to the Presidential Authorizations

On 2 NovemberZODl, 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 II Commander?in?Chief powers and the AUMF. The second authorization also
cited the same ?ndings of a threat assessment concerning the magnitude of potential
terrorist threats and the likelihood of their occurrence in the future. However, the scope of
authorized content collection and metadata acquisition was rede?ned in. the second
Presidential Authorization.

 The language of the second Presidential Authorization
changed in. hree respects the scope of collection and acquisition authorized under the PSP.
First, the "probable cause to believe? standard for the collection of Internet
communications and telephone content was replaced with "based on the factual and

 

Tali) Were: a to? an; rmr?r?m 
IUI I I 

pt'aicttcal considerations of everyday life on which reasonable and. prudent persons sot,
there-etereasonable grounds?to believe . . Do], Counsel threlnt'elligencePolicy; 5

  Better told us} this change was; made 'hy'Atldington because ?he-belieVeda?the ?temis'
?Vprehablezeause" wete "too ?eighted" with "usage injnnicial opinions, B-Etlterrals-o: s'aidfhe
"bel?ievedthechange to more colloquial language Was be:
appliediijy?nonsel'awyers at the NSA. Secor1d,- the-newly de?ned standard was to be applied
to tlfiftiheliefl-thatrthe eommu?nicatmn "originated 01' terminated Outside the United I
Then?ew language therefore eliminated the authority that existed?in the feet
autltojrizationt? intercept thecontent of purely domestic cemt?nunicationsThe third ohangei?n thersoope of PSP collection and
acquisition contained in: the second Presidential Anthorizatiott?was the inelusionof an
additionzil'?hird) category of Internet and telephony metadatn that could be'acquife'd:
basedon the factualand practical considerations. of everyday life- on
?Wll?ichleasonable and prudent ?pe1'50ns- act, there-ere speci?c and
articuleble facts ;.giiling reason to believe llt'at such communication relates
to international terrojriSm, or activities in preparation therefor.

This languagejrept?esented an expansion of collection authority to include metedate
pertaining tojcerta'in communications even when both-parties Were persons, as long as
there. were facts givhlg "reason to believe that the communication was related to

international.?tertofisni.

J) On 30 November 2001, the Presidentsigned'n third

     
  

     
 

9 January 2002 conceming scope ofnutho?zed collection and acquisition becamertl'



'e

 
  
   

(U) Office of Legal Counsel Memorandums
supporting Legality of. the Program

 OLC Deputy Assistant Attomey General John Yoo was responsible for
drn??ingthe ?rst series of legal memorandums supporting the PSP. Yco was the only OLC
of?cial read into the PSP from the-progmn?s inception until he .let?cDoJ in May 2-003.

 

an "an? n?


 

During Yams tenure at he'wa's one; of only three Doliof?'c?ials. read into the Th6
Ashcro?zand Baker, on: Assistant A?cmey-Gfenerall Jay 
idix??tS?parviisor, was neverread into the? program.

?B?eforejthe Prasident authorized the 0114: October ZODL Yoo?h?a-d;
preparedamemdraiid?m emulating the legality 

Tprc?i?thcj: Uni:th States-to monitor. 001nmu?iCa?idlis.Dfpotential taprorist's. His,

 

m'emotandum, dated 171 September 20031,, as addressed G'mmsel
q?ggF Flgnidml andwasentitled 

 

 

    

 

 

 

   

  

 

 

 

'e ?rst?OLC memorandiun e'xplimtly addressing the legallty. of PSP was

'2th  alter the-program had been formally authorized by the PreSident and after-

Ashcro?: had certi?ed the pro gramas to form and legality. The'ii'rst OLC opinion directly
supporting the legality of the PSP Was dated 2 November 2001, and was .di'afted by Yoo.

outset of his .2- November memorandmn' that "[b]ecause of the

highly:seusitiVenature of this subject and the time pressures involved, this memorandmn
ha" not n'dergone theusual editing and review process for opinions that issue from our

 

. You. acloaow1'ed'ged'in his 2. November 2001 memorandum that the first
Presidchtial.Authorization was "in tension with Yoo-stated that PISA "purports to
he: statutory means for conducting electronic surveillance fer foreign
intelligence." But Yoo then opined. that a reading of PISA would be an
unconstitutional in??ingemenit on the President?s Article II authorities.? Citing advice of
OLCandiDo?I's position as presented to Congress during passage of the USA PATRIOT
Actseveral weeks earlier, Yoo characterized 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 Authon'zation could be viewed as
a violation civil and, criminal sanctions in 50 U.S.C. 1809?10, Yoo opinedthat
in this regard FISA representedan unconstitutional in?'ingement on the-President?s
Article IIpowers. Accordingto 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 PISA.

 

 

  
   

 

 

 

 

Yea qute,tf11at reading President?s inherentauthority to
Geneva-fora g1; i?telli?gmee surveillance womd raisegraveconstifu??mal 
{undefl?je ire-resolving theer?issuema 

 I 
. 7 ..  ear?siatemen? 1111+ SA. 

      
   

 

Ideniialtauther?itylte conduct ?wairant1e33,5eatcl1es in the.
nationz? semi?y itihas'not??the? thejstetute must-be cemetr?ed to avOi'd such:
a'uqr'eiadin?g?z" 1
- I I,   .  1?0er ?2 Amendment.
concerns ?t6 the .eXtentIhat the aut-lmrized gelleetien "in-valved non-U. persons outside the
Unitedzstates', Regarding these aspects of the program thaf invoked of the
hitematibna'l, communicatimls of US. persons within thqunitedStates-v, Yoo assertedithet
.a11owecl for searches o'fgp?et's one crossing Us.
i?t?emati'onal'borders a?d?that .?itereept?ions och?minui?'eations into ?01" out ?of theUnited
iSlfatesfeIIWijth'in the "border crossing Yoo further pined that el?Ch?Qnic-
Sufyeillance "in "difeot supper?tzofi?i'lifaly operatio?s? didin?ot trigger constiimticj?al
preteb?b? against illegal [s earohesrand? seizures, in: part..beeause theFouL-Th Amendment :is,
'p?fii?arilj?i?aii?ed ?atgculfbing law enforcement abuses. "Finally, Yoo wrote thati?le eleettOnie

 net xec?mghfi?b"teetricrpres 

 

Authorizatiene was "reasonable" under 
'a?gu?rth' Amendment and therefore. d-i'd'not-requiireaa Warrant: situation the

     
   

 

1?01 A r?a-k 
u. .. ll as (x

 

    

     basic:

 

I 111061701361" 11332" 0. 


SURVEHLLANGE PROGRAM



 

 

 

 

 

 

 

 

b1,
b3,
b7D,
b7E
b1,
b3,
b7E
?11

 

 

 

 

 

 

WTelephoneandInternet

fGiriirnrnim?leat?lons content Collection 

a I 3,  Content collection and-analysis under the PSP was conducted in the
Seine inanner? as collection and analysis conducted previously by the NSA under

 1,2333 authority. NBA management applied standard minimization and specially
to-taslc domestic seleetors such as telephone numbers and email
addf?sse?g Selectors had to meet two criteria before being tasked under the PSP: the
purpose of the collectionhad to be to prevent and- detect terrorist attacks in the United

 

 collection managers were responsible for ensuring that telephony
and-Internet comnnmications selectors were appropriately added or removed from
collection. Content: collection for domestic selectors was sometimes approved for speci?c

  

 

 

b1,- b3,
b7E.

 

 

'tiniepeigiodsa Data-collectedunder the PSP were'storedv in compartnientecl NBA databaSes,
antlajccessi to thedataba?ses was strictly'controlled.

i if The?inajOriW oftatgets for. content collection under the were
forein telephone numbers and Internet communic-atio addresses, 1112008, reported
oreig?n telephone niinib erszan'd in excess eign: Internet 

?1 i 'd beentargetedfrom 11 December. 2006.
omesti'ctelephone numb ers and einestcicl Internet

   

  

  

   
 

 in  

communications for?PSP'content collection from October? 2001 to
January?2007; .Al?iough targeted domestic telephone. numbers 

addresses Were located in the United States, they were not necessarily
used  citizens.-

 

 ESP prograni'officials'. told 'us that-the NSAdicl not: seek to collect domestic
c?einlnuni'eationsunder the PSP. I-lo e? manauers'sai'd that there-are noread?ily
available teCImical means Withinth   I to guarantee that no
domestic calls will be collected. Issues of 'ltitid' arise from time to time in
other VSIGINT -o eratiOns, and are not Unique to? the ESP. Over the life of the program, the
NSA reported ?incidents of unintentional collection of domestic or
non~targeted In such cases, the NSA 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 tlirougli'a voice processing system;
Internet communications con-tent was available from the database in which it was stored.
Analysis involVed more than. listening to, or? reading the content of, a Communication and
transcribingand disseminating a transcript, Analysis alsoinvolved coordinating and
collaborating with other 10 applying'pr'evious knowledge of?the target, and
integrating other relevant intelligence. 

  

  

 

?i9

@Meitedata. assesses-ans.suggests.

   

Nb" rspersonnei; US B?i?i?f 51? ainetsdat I Gi?? ai?i?g;

gouge? the-NSA had the capability to collect bulk te?lepho11ytsud httemet metad?tat
before lthe'_4P'SP, collection was collect-
inete?ata?fome Wire inside the Without when one end; (if the
the United States. through; domestic.
seljeotoizs; Access to large amounts of '1neta?data is: required'fm' effectivecentaotehaining
?an?cli'fthei P3P increased the data aavagilable to. NSA and alloWed'them to perfonn-
rmere thorough contact-Ollaining.

a Although .NSA analyst's could Search bulk?collected inetadate under"
the-P3P, the searches- wereilin?ted. to targets that Were zappxoved under'the'
standards set'fotth in the-Presidential Authorizations. As suehb only a small fraction of?the
metadata collected; under the 5PSP was eV'eracoesSe'd. the NBA estimated]
.o'f'thetelephoneseeordsin the  databasai(01? one ofevesy'
'foiut?lzrriillio?- regards) could be expected to be seen 

  

 

telep one :11umberor' Internet; cojnmuni'cation Specialized metajdata analysis
searchesjth?e metsdata euclidentifies' contacts; bet-weenthe selector ?ancl.o??1er?

telephoilenumbe-t?s' 01" Internet Commun'ieationssadj tesses. a his
?11131 Z?dl'oflintdi 7. - at? 'an

 
   
 
      
  
   

     
 

gem Presto; "ti A11 tot-testie'osdt? nor "htts'izt assessment;
eparation from the target, NSA detennined that-it was not
analytically useful to do so.

  automated process was created to alert-and automatically chain new
and potentially reportable telephone numbers using What was called an ?alert list.?

 

 

2o

 

 

  

 

 

 '1     

djl??cted to or 
dollec?b?' mu. ?databases. NSA repo?tt?e?d three such ViUlati?bnS?aear'Iy ina'th?-

pitmgtam. and toquneasures to cement them, 

(Ll) N391 Raponing From the 
P?resic'?'ent?s Suw?illance 

i types .dffepo?s:

 

iss?eu?nated 

  

  

 
  

.. ?3 
'uu?for?mati'onx?mt

 

 ., .?Sometiljpergco11taiin

 

 

 

onte?t J?Or?ts-iwhmh: $9111de aria ysi?s?

    
 
      

 

 

 

'22

 

 NSAManage-rial Struc-tLire and Dyereight
of the President's Surveillance Program

 Analysis and reporting associated with the PSP was conducted within STD at
Fert Meade, Maryland headquarters. P8P activities were not conducted at NSA
?eld sites. he Director and Deputy Director exercised senior operational control
and authority over the program. The individual who was 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 Office of
General Counsel. She noted that Hayden took personal responsibility for the program and
managed it carefully.

 By 2004, speci?c managerial authorities concerning PSP collection, analysis,
and reporting activities had been delegated to the SIGINT Director. The SIGINT Director
furtherdelegated 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 P8P

 

 

 

 

 a?cms's the, SP program manager Was providedadditional staf?. *ng: The

lif?; of:th program, th?'rs were ?ve PSP;p1;og1-am managErs, who re 01?.th directly fo-?Ethe
Dir?ctorxor??ie _ief?of the CT Product" Lina.

 3- . ..  -. 

.3.

   
  

 
  

   
   

 

:(Uy 305% From FY ZUGZ-thmugh FY 2006}

(dbilarsih thousands, personnei costs "not'iricluded-)

 

(U) .NSA Management Cantrols to Ensure
Cidmp'liance-With Presidential Authorizations.

 

 

- p?qn 
lrun kvu ?u Huh-an: "Ir-=1 II 

 

as

 

         

 
 

.j  .. Connect-Was:meditate the the day-
?rstBi-esident-ial. AuthoriaatiOn was" si On October .200 the General  ounsel 
provided Hayden-andhis fer nserfin briefuigiNSA 13617301111615.011: the-

authorities. The" talking. points "included the fact: that Hayden had directed.

the-NSK GeneifaliTComis?el  thetN?S-A ASSo?Ci'ate -.Gcnera,1f CQunSelfOl?e: Operationsto
ratiewand The NSA: Aswciate?G'eneralitCoimsel er: Operations
p'r?ovided mast ofzthe pregramtovetsight?befmfe the NSJA. I'G-waseeacl into the PSP in 
The Assodate General Counsel for Operations-oversaw program
implementation, reviewed propOSBd?t-atget packages-for complianceth the:
authofizations, and coordinated pro issuesrwithDoI.

(-U.) inspectcrieenera?t Oversight
of- the-Prog ram

WTITIB NSA IG and other  O'fficie ?of Inspector General pets onnel were read.
*int'ogthez-PSP beginning, in August 2002;. Over the life-of the NSA 
tenduct'ed:

:3 Three investigations inwresponse to sneci?'c incidents. Violations of the:
Presidential Authorizations "to attach and remedy 

0 Tea t?eViewS to detcnn'iaeitheeadequacy Qfmauags?ieli?f Controlsto ensm?s'
compliance with ?the assess the.
mitigation ofrisk associated with program activities, and identify
impediments to Ine??l?lg the requirements of the autli? rizations. 

 a"  .f Ten ofthe-NSA .lCt-rcpoits included-a total-o 3; econintendations-to
 management to strengthen internal. controls and procedures?overthe PSP. The NSA
.-IG-cidenti?ed no intentional IniSLlse-of the PSP. Signi?cant?ndings from NSA reviews

ofthe include the following:

o- In- 2005, the NSA then.  . trots when comparing records of'dornest-ic
telephone and communications selectors approved for content
collection with selectors actually on collection. The errors ineluded
selectors that were not removed from collection after being detaskedj
selectors that were not put on collection When approved, and. selectors that
were mistakenly put on collection due to typographical errors. NS-A
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 con?dence that 95 percent owners of domestic

 

 

 

 

selecth taskedlforPSP content-collectionwere linked to alaQa?ida, its 
,ans?o_oiatea, or international terrorist threatsrinside the.U11ited' States.

7  "i i In; addition' Irepnrt-recommenidati0113,; iir-Mar-dh 2.003", the NSA 
the-there art-violatioiis the
President, The NBA IIG prep ared (it Ereisidea?algnoti-?cationsrfor the-N58115: Director
eeoneerr?rlg, Violations of the. authorizations.

 x: violationsinvolvmg collection activities
conducted'unaefsi?sr authority as well asviolations related to re?ner PS-P-iactiftf-itiesthat
were :-_operati11g under FISA authority were reported quarterly to 'thexPresident.?s Intelligence
weight Beard, through the Assistant to the Secretary. ofi?Defense-vfer Intelligence

 

 

      
 
   

 

it
therefore try-determine the e'Xaot'nature' 
collection. o?t this incident in its upcoming'report' to. the President?s
Intelligehcei?OverSight:Board.

i . 1; 011.15 January 2009,,l3116D01 reported to the HBO that the had
been ?uSIing' an "alert list? to compare FISA-?authoriZed metadata against telephone numbers
a350?ittgteclwith counteitelrotism targets taskedzby-th?e The.
NSAhad reported to the FISC that the: alert list e?onsiat'edof telephone numbers for which

  

 had determined the existence of a reasonable, 21? su
to aterrorist orgai??fzatiM ass eciated wit
deteimi?ation} had not been made for themajen 5e ,ee ore -
alert list. The IG to-t?he President?s Intelligence Oversight;
Board", and has provided. updates as required. The alert list-arid a detailed?NSA 60-day.

review of processes related to the buSiness records FISC order were the subject of Betreral.

to the F180 and of NBA brie?ngs to theiCongressional oversight
cOmmitte es.

         
 
 

   
     
   

(U) Access to the President?s Surveillance Program

 

 



 

26

 

(3U) Gamul'atiVe clearance Totals-

January'20?07)

 

 

 Kjtotyl'edge .of the PSP was strictly controlledand "limited at the eXp?r?ess
?cttsect?toa Off-HieTWlliteil-louSe; . Hayden: eventually delegated his P8P clearance-approval
authjriity?for  FBL ;and,CIA Operational. personnel to the NSA- progranrn1anager.-
.Haydenzwas required to obtain-approval from'the White House: to clear memberso?f 
congresStFII-SC and others.

 A .  was?not'read into the?PSP untilAugust?ZOOZ. According to;-
the Beunsel'at the tithe, the PreSideht Would nortaattowthe robe briefed
prior Itoz._that date. Although Hayden did, not recall why the had not been cleared
earlier, he thought that itTWOittld have been inappropriate to. clear him when the-length: of
the prograrntuiltqun andr?before operations had stabilized. By August 2002;.?
Hayden and the NBA General Counsel wanted to instimtionalsize P8P oversight with the
involvement oftheNSA-IG. Hayden recalled-having to "make a case" to the White
?Hou'se?t?o have the IG read in. The ODNI IG found that ODNI oversight of the 
was: limited by ODNI oversight personnel not being provided timely access to the
program.

 

(U) Congressional Briefings on the Program

On 25 October 2001, Hayden oondueteda brie?ng on the PSP for the
Chairman and the Ranking Nle1nber of the House Permanent Select Committee on
Intelligence, Nancy P. Pelosi.an.d Porter .1 Goes; and the Chairman and the Vice Cha?innan
of-?the, Senate'S'eleCt. Committee on Intelligence (SSCI), D, Robert Graham and
Richard Shelby. Between 25 October 2001. and 17 January 2007, Hayden and outreth
NSA: Director-Alexander, sometimes supported by other NSA. 

 

 

 

 

 to members of Congress and theirstaft'. Haydentoldus that sting the-many
ESP brie?ngs to. 'ni'e1n'b'e'rs 'offcon?gress, no One ever suggestedthatthegNSASHGtild stop the
Ef?gtanii Hayden?elnghasized that he did mere-than- just during the
.bi??ietingsa- whieh'lasted as long. as aattendees?had questions. . ..
 Foreign :ln?t'euigence Serveiilaneeicourt
Briefings en the? Program
I. 1 a; .  on 31 January 2-002, the 
beearnegth'e ?rst-member of the: oou?it'to beread into the  H?s-was :briefed on the
Of?ceoflntellivene?e Po?lioyatid?evi?ew

         
 
  
  

 

 
  
  

Lambertht?s brie?ng- Was. conducted-at the 1-30.! rand-was
. Yen, and Baker.

1 A Ashcroft provided Lamberth 
deei'sinn to; create the PSP, and Ashcroft stated that he haddetennine d, based uponthe
advieefef-Jolin Yaoo, an" attorney in Do] Of?ce- of Legal that. the
Bresid'ent?s?aetions Were l?aw?il under the Constitution. Ashoro'it also emphasized to
Lamberth thattheaFISC was not'being asked to. approve thep?rograin. Following-
I~Iayde11 described for .Lambe'rth how?the program ?metioned
operationally, 'Yoo aspects of the program, and Baker propoSed-procedures:
 ?ltel?tlational terrorism FISAapplications that contained-IESP-?derivted
infonnation} For the next four months, until the end of. his term in May 2002,. Lamberth
was the .onty'FISiC judge read into the-P8P.

. .7 Judge Colleen Kollar?Kotelly snoceeded .Lamberth as the 
'P-residing?ludge' and was briefed on thePSP on 17 May 2002. The brie?ng was similar
term and sub?Sta?nce to that provided to Lamberth, In response to several questions from
Keller?Kotelly about the scope of the President?s authority-t0 conductwarrantles?s
surVeillanoe,.DoiI prepared a letter to signedrby Yon, that, aoeordingto
Kol'lar-Kotelly, ?set out-abroad overview of the legal authority for conducting [the 
butzdid notanalyze the speci?cs of the pro grain.? The 'letter,lwhi011 KollarsKotelly
reviewed at the White House but was not permitted to retain, essentially 
(-2 November 2001 memorandum regarding the legality of the PSP. Was the
onlys'ittinglFISC judge read into the PSP until Jannary 2006, when the other FISC judges
were read in.

Baker was read into the PSP only after he came upon ?strange,
unattributed? language in i su vested the. existence of a

  

     
   
  
 

   

     

his successor, Keller ote .re? in. 'l'eDoJ IG believes that notba-vmg OIPIR-
ot'?'c?ials; and members of the FISC read into the PSP, while'prograrn-derived informatiOn-

was being dieseminated as investigative leads to the FBI and ?nding its Way into 

  

 

2.7

 

 

applications, .putat. risk the Doltsiimpoitzint relationship with theFIS IG agrees

With-1Baker?sassessmentthat; representativgibetbse tItegFIS  good

relations between the DUI and the FISG depend on candor and transparency;

Participation in the
Pregnant-ts. Surveillance Pregnant

  I-As a; user OFP'SP-derivedinformation, the FBI: disseminated leads?s?
tipperse?to of?ces. consisted-of domestictelephonenumbers
and hitemet communications addresses {that {had deter-tinned through"
:rnetadata analysis Were cotmeeted? to indhtiduails involved Withal??Qa?id'a- or: its af?liates.
Dame-sac telephone numbers represented the: overwhelming majority- ofP?S'Puderived
information-contained in tippers. Tipper-'3 also provided information derived fromeontent
collection under- the P8P. 

1 .  . f' 3. 1113..me principal-ObjectiVe P8P Was
to disseminate. pro gram armaments FBI ?eld of?ces Whileprotecting
the source of the infonnation-and the methods used to-collectit. The initially assigned
responsibilityfo: this to;its Telephone Analysis Unit .Whieh? developed procedures
atozidis?seminate informatimrfromN A 'ep'orts in secret-never
rennet- "The result-in. 
restrietions on how the of?ces "Wereto as the
infomiation ?for lead purposes only? and not?HSe the information in legal or judicial
proceedings.

WEE paitic-ipatiort in the eVorlved over time asthe- program "became
less; a'temporaty tespottSe to- the Sitaptembe: 311 att - ?1 andmore aypennanent surveillance
Capabilit To?imrov I cation in the pro grain, the FBI
initiatedth .111 anage its tenement 
PSR In "bt'uary enemas FBI assigned a.'tean1'ofEBI personnel?,wNTeam work
full-time at?the NBA to manage the paiticipation in. the program.

i  Team 10% primary .I'esponsibili-ty PSP-?infonmtion

 

 

  

    
     
   

  
 

Overtime, Team 130 began to participate in the in other Ways. For example, Team 10
occasionally submitted. telephone numbers and Internet 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 Intemet
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 ?eld a .. u. not required, to investigate every tipper
by Team 10 under th project. Rather-,5the type oflead thatcthe 
EC: assigned??"aetion, "discretion or "for the ?eld of?ce?s

     

 

 

b1,b3,
b7E

b1, b3,
b7E

b1,b3,
b7E

b1, b3,
b7E

 

 

response to 'arippeys The vast maj avastigative actirityrelatedrp-Psr
informationrnwolved reaponding-t "telephone, number tippers that assigned.
action leads, Teanrllil'generally 'sagned?acuon leads for telephone numbers that We?re not
alige?idy'lniownrto the FBI Dt-tele'phonesnumbers' that Team 10 otherwise deemed a high
priorityShannan-number tliatshadia rate a; major FBli'inve    in
approximately  was established,- 
 ins'truCted t?oobtain far the telep,  a I
Withinits to conduct-any "legisal investigatibnto detenninetelroris't'
connections??. Some-agents complained that?action- leads lacked guidance about how-to
make. .use-oftlte tippers, which Was ef?pj?a?rtieular concern because agents were noteon-f-ident

the ommunieations provided suf?cientpredication to open national security
hivestlg'ations. 

   
  

        
  

 




  
      

I es to-FBl?procedures--i112003 addressed some FBI agents'
concerns. FBI?Headqttalters assUmed responsibility from field offices
rmrissurng nationalisecurity letters to, obtain subscriber info t' b1, b3,
dltelgephone- numbers comlnuni'cationsaddressesr-  b7E

the-Attorney national es 1ga 10.118
thatereatedaunew category of inves?tigatitre activity Called a "threat assessment" .ntler? a
threatassessment, FBI?iagents are authorized to 'inVestigate 0r Collectinformation on
indittiduals, groups; andorgariizations investiga - - a it not opening a
preliminary nationalsecutity 'investigatiOD. Beginnin? 
assignedb office 0!  thlje .-
asseis'sme'nts and advtsed that FBI headquarters wouldissue NSLs to obtain subscriber
information

 general,;an iiwolved-searching several public,

and Commercial -.databiases:for information about the tippedtelephone number, and
requesting that Various state and 100511 government entities conduct similarsearfches.
Sometimes these searches identified theisubscriber to the telephone-number befOre FBI
Headquarters sobtained?the information withan NSL. In otliertcaSes, the threat assessmentsr
continued-after the. ?eld-office. received the NSL results,

 Th eads frequently were closed after conducting a threat
asseSSment interViEW with the subseriber and determining that there was no news to
terrorism or threat to national security. In other cases, the leads were closedhased solely
on theresults of database checks

Beginning  BI ?eld of?ces Were required to report the
results of their threat assessments to FBI headquarters. FBI field of?ces typically reported b1, b3> b7E
all of the information that was obtained about the tipped telephone numbers, including the
details of an},r subscriber interviews, and then stated that the of?ce had determined that the

. Two chem

    
  

 
 
   

   
  

 

   

b1, b3, b7E

 

  
 
   

 

An action lead instructs an FBI ?eld of?ce to take a particular actionin response. A discretionary lead
allows the :?eld?ol??ceto make a determination whether the informatiOn provided warrants im?estigative action. A
?eldtoffice is not expected toatake any speci?c action on a for information. lead.

 

29)

 

 

tailap'h011ernumber?didnot and Consideradthe;lead-0103361 Much
.Ia's?s'ifrelcllujcn??y, ?eld 'of?ces.f6p01f6d that 
 tof 'intemati?liai terroriSm threat
assi?ssmant, 15the result-s; of-th?e threat- assassm?nts and the infon?ation that was poll'e?cted
about subscribers":generally andsup'loadcd to FBI
.databasas.

P-fa?iainatbn in the
 . Frasi?dentfas?uminame ?P?rcgram

 




 

 

C913

(I)

 

 

 



 

 

i

i
3

i





 




?wan?m








 

31]

3-2

'?gfiuitto-thssUnited-Stat a.

 

 

i i The  1G. found that, the ODNPs primary role wasthe

 

preparation  tln?eatrassessnrents, that smii'marized the ?aleQal-ida'. threat to the United
States and were Used torsuppert periodic reanthori?zation of-the' program. The-  If}

the-threat assessments were drafted by experienced NCTC personnel who.

prepared the documents-in a memorandum style-following an. establishEd Del format. The

also determined that the ODN-I?threat-assessrnents were preparedusmg

revalnatedintelligence information Chosen-from .ajwide Variety of 71C Sources ODNI
Psrsolmtl?said the incri?d?when' the ODNI preparnd theiithreat assessmentsg?the
 to ?1111)! evaltiate'd' intelligence-inat- cited; an assessment that

   

 

 The NCTC said that they handle NSAvsurveillance 
consistent with the standard rules and procedures forhan tiling
NBA 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
inarmeras other incoining NSA intelligence products. If appropriate, NCT 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 Reportand the Senior EXecirtive Terrorism Report as
examplesof the types ofi?nished intelligence products that would, at times, contain PSP-
information.

 

 

 

 The President?s Surveillance Program 
and the Foreign intelligence 

.2 p.  a initially withthe court?s
directed. diavel'oped to as. ?scrubbing?? 4 
prd??diif?k-fd210601131th15 and make the court aware-of instanCes WhenPS?Pvde?ved

information Was} included in FISAappiications; Lambenh required that all, 
'appiicatiens diet-contained PEP?derived infoifmation, or that 
Cblieciien against particular targets 'under'botli the Psraada  
only, narrate-nag that Lambeith wanted-to be informed of?appi'icatiens diat.,ccnta.ined?
P3Pinforn1ation and of dual coverage situation'a AccOrding tcB?aker, the. scrubbing
were 'arineans of meeting his ethical duty of Gender to the. Without
?disclc's'i'n' the existence-of the PSP touncleared judges.

i i W. 7 Do} effectuated the scrubbing procedureslay-compiling Lists of
information contained in initial and reneWai FISAapplicationsthat was attributed to the
 and?o'ffall facilities surveillance: in the applications. Thes?e?li?stis'
weresent to the NSA to determine Whether any of the was
Whether anyof the facilities- also We're targeted under- The NSA
ccnununi'cate?d' -the results back to ?led, the applications with. theF
'ccnS'istelnt with the scrubbing procedures.

.-   i - Kollar?KOtel 13': continued the procedures thathad been 
Baker-and agreed- to by Lainberthfor handling PISA applications thatcontained 
deriv?ed?iinfOnnation. required to excise 
applicaticnsany information. obtained or derived from the ButKolilarv?Kotelly also?
instructed Baker to alert her to any instances where an applicati'cnisbasis for the requisiite
prbable cause'showing under FISA Was weakened by excising?PSP information. 
cases, {Ko'llar?Koteliy Would then ascess the application with the knowledge that additibnal
relevant information. had been cXcised.

.. llar-Kotelly also instructedDoJ to discontinue the practice
"l ludin ina licatio'ns a descriptive phrase associated with

    

  

         

1, b3,
. pphcatlons were b7E
also targeted under the PSP. Baker to as that while Kollar?Kotelly understood that
instances of dual coverage would occur, she did not want to appear to judicially sanction
coverage.
. . I In. March 2004, Kollar~Kote113r was infonned of operational changes
made-to the PSP following a dispute betWeen DUI and the White House about the legal
basis fer certain aspects of the program. Kollar-Kote?lly responded by imposing an-
additional scrubbing requirement to further ensure, to the extentpossi?ble; that 
infatuation-was not ineluded in FISA applications. The FBI, in coordination with D01 and
NSA, was to determine Whether a facility included 'ina FISA applicationm-not just a
targeted telephone number or Internet communication addreSSQ?also appeared. in a PSP
report. Ko?llar?Kotelly permitted any such facility to remain in the application if it could be

  

  

5?2?

 

TF1 nix? r??h?ikl?T'. - - 
Fix a I LWV :?vi'u I $1 

demonstrated thattithe FBI had developed, independent of the PSP, an investigative: interest
insthe facility, or "that the FBI inevitably would have identi?ed the facility in question
through nerma?l investigative. steps. Ans GIPR?ofticial ?Who was responsible'for discussing
KOllaraKotelly told itsthat the judge generally accepted Delis assessment
thatithe're: Was a ngonePSP a facility in qtlestion, or that the facility
inevitably Would. have been discovered'evenin the absence of PSP?deriVed leadseto the
EBL

{SW-Implementing? the scrubbing procedures, both under Lamberth and Keller?
Kotelly, wasa complicated and. titne~c0nsu1ning endeavor for OIPR staff, Baker, who
until March 2004 was theonly individual in}.OIPR..read into the PSP, foil-1nd himself "having.
to cash  attorneys to compile infonnation aboutthe?ir cases,.,and sometimes to make
- 'ehanges -_t_oj their PISA applications, without being able: to provide {an explanatimi other than
that had spoken to the .Attolney General and the about the-situation.- Baker
regularly told-attorneysthat-they did not have-to s-ignappIiCations that they'were not
comfortableavith, and, insome instances, international terrorism cases had to be reassigned
fotzthis?rreason
 a Thesit?ua?tion was furthercomplicated by the fact that, until August ?2003,
Only One-of the We statute to ?approve:?FISA applibationse?
Ashcroft and Deputy Attorney General. Laney Thernpsonmwasreadr into
'theiPSE. Thompson, who served General ?out May-2001 to August
?2003, was nevepre'ad-into the'PSP, despite .As-hcroft?s request to the White House.
- Similarly, KollanKotelly, who by November handling
appro?matel: percent. of all appliCations as a result of her requirement that
filed with her onlmmade unsuccessful requeSts .for?adclitional
FISCV'judgesitobe cleared for the program. KollanKotelly' decided inNoveinber2004 that.
inev?i?ex'vofthe scrubbing procedures that'WBrie in operation, 
applicationscould be decided by other judges based on the infermation contained in the
applications. 7

 D01 together with theFBI and the NSA, Continue to apply'the
scrubbing procedures to international terror-ism PISA applications. Since January 2006;,
all members of the F180 have been. briefed on the PSP and all of the judges handle
applications thatinvolve the issue of PSP?derived information. Although compliance with
the procedures has been burdensome, we did not ?nd instances when the
government was unable to obtain PISA smweillance coverage. on a target because .of the
requirement. However, the Do} IG concluded that once the PSP began to affect the
functioning of?the PISA process, OIPR and the FISC effectively beCam?e 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 forjyears to a single 
of?cial and one FREE judge.

 

  

 

 

 

issf?i?ies Associated With
?the. Pteeiti ent?313urveiilanee Program

  
   

to; was aware as earl-yam  that 
for under Rule-16 of

  
 
  

b1,
b3,
b6,
b7C,
b7'E

 

1,
b3,
b6,
b7C
b7E
attorney/swim 
?thegPSP'tmtilmid-20045 and asa result,_DoJ did not have aeoess torthe advice ofiattoi'neys

Who wei?etbjest eq?ippejd to identify and examine discovery issues aseiati' 

       
  

lieves.that,.sineeth 

      

  

must reexamine past cases to see whether potentially undisclosed

Ri?e 1601' 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] also
reoommends that Do] 'inco ordination with the NS A, implement a procedure to identify

PSPederiiVed.inf01'matio1i that may be associated with international terrorism cases

 

w?q 
'11?rryiu an uu In "sum in ?Ir-Hurt" II .. n\

 

36

opinions the ?ssinnptionthatIEISA ,di?

 

 

glm?cn?yp?ndiugp? HWY ?60 inzthe ?ame and Evaluate:Wining-such .
informationshoum 1.53 idijsc?losed in. light: Of't?e 
Rub. ?li?iand-Br?dyt


SURVEILLANCE: {2003+ 261M),

 

V. I 
Of?cials: onthe Eon: ?theprogran?s 'inq?ption'in Octuber: 20.011; ?uctugh Yaw-s,
i'nnMay'ZOOS'. Upon Ybohad?pamire, Patrick Ph?binjwasv's?tall?t?ed
to .assumeYod?s 190166.213 adViSorato 
General; Concerningthe 
Philbin legalmsmorandu?israbout
flies?'S'P?, he realized thatYOo had Omitted from his analysis any referenceto-?ie, FISA.
provisicgsn 
gdays following declaration of mm- 53?? {1811 .1)


 

4' ar?

  

   

 

 

 

         

but prbuamym wmxmuwll is 

?jfjeif??foiia?advi?sed Aslicrqut to continue t9 cartify the program??aszt?  
Bli?binalso reconunandadt'hst- a new OLC memorandum assessing the legality of the ESP

.a

Tbegtdr?a??d, and With Ashcro??s drafting the? memorandmm

(U), A?New Legal sis-is. for the: Pragmm us Adopted

GoldSm-i'th was?swom in as the Assistant Attomey General 
:63Qc?g13317?2003, replacing. Bybee, W110. hadJe?It-that pOSitiO'n saws
vasfagjud'ge  th?US; com Qf Appeals-?01! the Ninth-Circuit. Philbi?stOIdEUszth'afihe
 :fO have rgsdint?o the and that Addingtonrtp'l'd   
Wd?ld ave: must-ifs! thearequast? before take itifb a:
'de?i?ibii?. read Goldsl?i?l into the program-011
1372?Novembcr2003. 

in ii" memorandums andPliilbin?sdnew 

 

 

 

 

 

wrann 
s. s. 1-. nuvuthH-ul nun my? in  

WW

38

 




 

  

Judlqlalaut Litigation fail Within any of the exceptions to this requirement.
mete-in av EfMay' 2004 legal memoranduln reassessng the legality of the
pregtmn: theta 151701361? analysis ofthe P8P ?must not censiderFISA in isolation? but rather-
Congress, by authorizing the use of military force against al?Qe?ida,
also ?effectivety exempts?isuch stirVeiHanee-from PISA. Goldsmith believed that this
feeding ?Oi'f?the  Was eo'nfeetibeeau?se the AUMF authorized the-President to use ?all
appropriate-force? against the enemy that attacked the United States 011
71-1? and to ?prevent any future acts of international terreriSm against the

 t1: :Stateg? bysucih 01511:)! 'thatrhas. long been recognized to include the'iuse
  aj'sxa- military to 0'1. Altemati-vejly,Goldsmith reasoned that even if the 

- V'p?rbgr?ai?n {tom the restrictiensimpOSed by PISA, the
ambiguous to wanza?nt the appliCation eftthe deetrine- 07f

 

 

 

 

 

. 7 1' onlthoDoJ officials ina 
position to briefing: Airtime}; General and Vinnie-Housaof?ciatsen tithe their-legal:

. rami?cations fer the. operationofthe program; Goldsmith .
the: program, Ashcroft-should: certify the 
Morization. tier adv'iSed'Ashcro-ft to eertify
the 141 anuary 2004authcirization as well. Goldsmithtold =us?thathemade these
recommendationsro Asheroi?iwith- the Caveat that 'althougli;.11e he'lieyedYoo?s
lneniorandunis to?b'e ?aWed; G'Ol?dsmith' hadnot yet the pro gram itself was .
integral.
(it) Department of Justice attic-tale-Convey
Concerns About the Program to the Whte House

 

in December 2003, Goldsmith and-Philbinmetwith Addington and
Genzal'esatthe White House to eXpre'sstheir growing ceneer-ns about?fthe legal 7
und?lpinnings for the program. Goldsmithsaid he toldthern' that notsure the
program eodl?d? survive in its current form, According to-Goldsinithis- contemporaneous
notes ofthese. events, these discussions did.th contemplateg.an intenuption of the program;
although the White House of?cials represented that they awould"?ragree' to pull the plug? if
'?i?eproblemswiththe program- Were.'fonnd to be Goldsmith toldns
that the White Housemtypically thrOugh Addington?e??told hirn ?several times?ithat it
Would-halt the pro gram if Do] found that. it; could notbje legally Suppiorted.?

I  011 18 December andi
Gonzales and: Wrote in his - notes that during this meeting he conneyed'Wi?r ?hnore force?"
his ?Seriousngubt'sandi the need to seen-as,
possible] 3? Goldsmith told us that- during this meetinghe also asked to have Deputy
Attomey?General'Cemey read into the program. .Acc?ording to Goldsmith-Emotes,
Addington and Gonzales ?brist1e[d]? at that suggestion. Goldsmithtold us that he
requested that Cor'ne?y?b?e read in because he believed he would need 'Conieiy?s assistance to
help ?make the case? to. the White House that the program was legally ?awed. pIn?addition,?
he Said he. wanted Corney read in because, as the Deputy Attorney General, Corney 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 pro gram continuedtln?ough
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 Conley was briefed into the on 12 March 2004 by Hayden.

 

  



 

?A??er'his J'brie?n?g, Conley discussed the program with Goldsmith, I?hilbih,
 DrillerDied-of?cials . and agreed that the concerns with were well."
- Conley told us that of particular concern to him and Goldsmith Was-the notion
that Yoolis legalaiialysis entailedfiignorh?ig an act of -'Gongres,s,- and-doing?sewahout .?Jll
C-Q?gi-?GSSiQnalinoti?cation--

  

the Department.ordus?ee
an'd?the'White House Over-the Program

 

 EQmeytold us that he met with Ashcroft fer lnnolron to discuss
"thee-ESP; andthat Ashcroft agreed with Conley andthee other .Dolibf?bials.? assessmenth
thegpotential legal problems with the program. Three hours-after theh'luneh meeting,
Ashcroft? became: ill: and Was admittecl. to the George Washington University Hospital; 173" On
Goldsmith advised Conley by-niemOrandumithat raiderthe circumstances of
Ashcroft-ls'niedical condition and hospitalization, .a-?clear basis? 
exercise the audioritiesrofthe-Attorney General alldwed by law as Deputy Attorney
.G'enerallor ActhingttorneyGe?neraL The ?cc? line of Goldsmith?s? memorandum to
Comeyindicated that a copy of thememorandum was sent to-Go?nzales. 

I a . On 5 March'2004?msixdays befOre?thePrjeSijde
sinef?fe?ct- asusctto Philbin .ine?t- With '6
the-? 

nt-ial Authorization then.

     
 
  
 
 
 

  

   

Later-?that day, Gonzales called-Goldsmith to
u?om ULL. Stating-mat 1? 00's prior OLCopinions ?covered the program.?
Philbin told us that Gonzales was not requesting a new opinionthat the program itself was
legal, but only a letter stating that the prior opinions had concluded that it was.

 

 

other of?cials inciuded? 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
While at the FBI. Comey also discussed DoJ's concerns about the legaiity of the-program With FBI Director

i .Mueller on 1 March 2004. Mueller told us that this was the ?rst time he'had'b?een made aware of'DoJ'sconcei-ns.

?3 CU) Ashcro??s dots-tors did not clear Ashcroft to resume his duties asAttorney General until 31 March 2004.

 

 

 

 r,     As a result of ?G'onzales? 3 request, Goldsmith, Philhinq and .Comey re?
. :_exami11ed??cpts memorandums with a View toward they adequater
described theaaetual colltecti on activities. of the NSA under the Presidential Autliol=i3at10ns.
1 onelttdedithat'?ieinemorandums did not. According. to Goldsr?riithj the concl?S?ion
t""aceu1?ately describe, letal?oneprovide 
meant-that OLC Could not tell the WhiteHOuse- that the
'1 grant con neon inne- un 1 her-it? of those legal" 

0116 March-2004, Geldsmithaand Philhin, withComeyisconcurrence,
end'?onaale "their 

     
   
  
   

     

  
  

   

 .. ?Accosdmg?to moiusmn-n 3 news,
Adding?toi onzales reacted enemas said theywonld get On
Synday; 7?Ma1?Ch 2004', Guldsmith and Philbin met again with Adding-tori and Gonzales at
?the'YWhite House ?AccOr?ding? to Goldsmith, "the White House of?cialsiinfonned Goldsmith:
{mdPhilhin that-they- diSagreed with their interpretation of Yoe?s memorandums and on the
need: to change-the scope of theNSA"s collection under'the PSP.
'1-Onf9lVIarCh?2-OO4, Gonzales Called Goldsmith tothe-White House in-an effort
 him- that?his criticisms of Yoo?s immoralide d-th Yoo?s


 

      
    

   

 

to persuade

       
        
   

After" than: as  Gonzal'eslnejxt"argued tore ten-nay cringe it;

get pastitlie expiratien ofthe current. Presidential Authorization on 11 March 2004;
Gonnales: reasoned thatAshcroft, who was still hospitalized, wasnot in any conditionto
Sign a?renewal of the authorization and that a ?30-day bridge? would move the situation to
.Ashcro? would be Well enough to' approve the program. Goldsmith told
Gonzales to recommend-an extension because aspects offthe program
lacked legal suppert.

I i I At noon on 9 March, another meeting was held at the White House-in
Card?s-office. According to Mueller?s notes, Mueller, Card, Vice President Cheney,
Deputy Director of Central Intelligence John E. McLaughlin, Hayden, Genz?ale's, and other
unspeci?ed of?cials were present. Comey, Goldsmith, and Philth were not invited to this
meeting. After a presentation on the value vas
?lained to the group that Corney ?has problems? with  
Mueller?s notes state that the Vice President suggested that the Prern ent may
haVe to reauthorize without [the] blessing of Del,? to which Mueller responded, could
haVe aproblem with that,? and that the FBI would ?have to review legality of continued
partiCip?ation in the program.? 

'f A third meeting at the White House was held on 97 March, this time with
Conley, Goldsmith, and "Philbin present. Gonzales told us that the meeting was held to
make. sure that Cemey UnderstOOd what was at stake with the program and to demonstrate.
?itS-va'lue. Comey Said the-Vice President stressed that the program was ?critically

    

 

     
 

tene?

 

 

AW z:er fn\?i\?li\?f?\?lFlf?l\inHKii 
I I 1? l.l\l  II 1' Ir?' 
.

42

 

     
 
   

   
 

important-l and Warned-that 'Coiney Would risk ?thousands? of lives if-he did not'anree to I
7 "eating-that he, as Acting 
?colle,ctilon.w 

 
    
    

  cealdin?or agree. to that
mainstream. I 
WG?onzales told us that alter-President-Bush was advised of the results of the
95Marc1iineetings, he the Vice President on the memingof 10 March to call a
meetingwith congressional leaders to advise them ofthe hnpassiswith 't?hat
afternoon, Gonzales and-other Whitelelouse and of?cials, including Vice President.
Cheney, Card; Hayden,McL augh?li-n, and Tenet, convened an ?emergency meeting? with
Congressional leadersin the White House Situation Room. The Congressional leaders in
attendance Were Senate Majority?and'Minority Leader's William  ?Bill? Frist and

?TthasgA. Dasc'hle; 'S'enateSeleet Committee on Intelligence Chairman PatRobeitS-ancl

Vice-Chainnan John D. Rooke'feller, Speaker of the I??IouseJ. Dennis Hastertand?House
 Leader! Nancy Pelosi?; and House Permanent Select Committeeon Intelligence
ChairP01ter=C305s and Rar?dngMember Jane Harman. No Del of?cials were asked to be
presenter theirneetlnse

 . According to GonzaleS?snotes ofi?the meeting, individual.Congressional
leaders heir-pressed?loughts and, cohcemsrelated to the program. Gonzales toldus that the
was thatthe program should continue. GonZ?l?s also said that following- the

Imeeting?with Congressional leaders, President Bush instructed. him and Card, to go to the

George'Washington Uniirersity Hespital to. speak to Ashero?, who was. in the intensive
caretunit.recoverin from surgery.

 Accordingto notes from Aslicro??s FBI security detail, at 18:20 on
1&0?March2004, 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?e wife toldtheag'ent-that Ashcroft would not accept the call. Ten minutes later,
the agent called AShcroft.?s Chief of Staff David Ayres at to request that Ayres speak
with Card about the President?s intention to call Ashcroft. The agent conveyed to Ayres
Mrs. Asher-offs desire that no calls be made to Ashcroft for another day or tWo. However,
at 18:43, Card and the President called the hospital and, according to the agent?s notes,
?insisted on speaking [with Attorney General Ashcroft].? According to theagent?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.

(U) At approximately 19:00, Ayres was advisedthat?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. Comcy-told his driVer to take him to the hospital. According-to his May 2007
testimony before the Senate ludiciary Committee, Comey then called his Chief of Staff,
Chuck Rosenbergand directed him to ?get as many ?ofmy' peopleas possible to the
hospitali?immediately.? Gomey next called Mueller and toldhim that Gonzales and Card
were on to the hospitath see? Ashcroft, and that Was in no candition-to
receive visitors, much 1655 make a decision about Whether to recer-tify. the PSP. AccOrding
'Comey asked Mueller to come to the liespital to ?witness [the].

condition ofrA'G.? Mueller told'Comey he would go to the hospital right aWay.

(U), Corney emitted at the hospital between 19:10 and 19:30. C'omey said he began
speakingto Ashcroft, and that it was not clear that Asherofceould focus and that he
?seemed?pretty'bad off." Goldsmith and. Philbin also hadbeen summoned to the-hospital
and arrivedrwithin' a few minutes of each other. Contey, Goldsmith, and Philbin met
briefly in an FBI ?command post? that had been set up in a room adj acent to AShcroft?s
mom. Moments later, the command post was noti?ed that Cardand Gonzales had arrived
at the-hospital and were on their way upstairs to see Ashcroft. Comey, Goldsinith, and
Philbin: entered Ashcro'ft?s- room and, according to Goldsmith?s notes, Comey? and the
others adviSed Ashcroft ?not to sign anything.?

(U) Gonzales and, Card entered Ashcrotl?s hospital room at 19:35, Gonzales told us
that he had with him in a manila envelope the ll March 2004, Presidential Auth01?i2ati0n
for Ashcroftator-sign, According to Philbin, Gonzales ?rst askedAshcroft how he. was
feeling. Ashcroft replied, ?not- Well.? Gonzales then said words to the effect, ?You lmow?,
there?s. a reauthot'i'Zati011 that has to be renewed . Gonzales told us that hemay also
have told Ashcroft that White House of?cials had met with Congressional leaders ?to
pursue a? legislative 

p; homey testi?ed to the Senate Judiciary Committee that at this point
Ashcroft told Gj'onzales 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 exoeed?ed the scope of the authorizations and the memoranduma
Comey testi?ed that Ashcroft- next stated:

?But that doesn?t matter, because I?m not the Attorney
General. There is the Attomey 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 ??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.?

 

mAme??mP?n 

 

 Fe ?an n-r- I- 
mun-.1 amt

- Belbreleoving aloe-ll'ftom Card; Comey testi?ed
that gCatcl washer-3r upeet'. and. demandedithat- Coniey some: to." theWh?lite 
immediately. Comey told?Cartl'that he would meet withfhimlihut not ?wlthoutia?Witness,
and'that he that; witnees to he: Solicitor 1'1 General Theodore  Olson.

 Stanley-and the otherIDoJ of?cials atQO: 10 'erldifmet 31:13.01 They
were - joined there by Olson. Del-mg this meeting, aeall?eame??m the Vice Presidents:
Olson, which ClsoutdOlc one? game line-Jo Condeyie of?ce while Gerrieywaited outside.
Carney toldus. he believes the Vice:PteSide11t e?feetively teed; 013011 into itheprogram
eating thatconvers? ation.? Come?y and Olson then {vent at atom: 23 :00-
athet- With GonZal?s'and Card..- Gonzaleet'old 3113 that littlermote was
achieved at this meeting than agenerel aCknoWledgement that-21E ?siluatiori?n'contlnuetl to
ij?St?b-?GauSB between Doll audithe Whitelrlouee regarding the
pngram.

 White-House Gelmse?l Certifies

Presidential Authorizatieh Without

Department of Justice concurrence

.: 37 . 1 .. "i the morningvof ITMm?eh 2.004, with thelh'efsidential
Authorization set-to, expirellh'eeldent'BUSh signedanewauthorization Ina.
depemlre from the past practice of having, theiAl?tomey General certify:theieuthoriZatlon as
to Form and. legality, the 11. Marelrau'tliorlzation was certi?ed by Whi?te-HoueeCounsel?
Gonzales. "Thell March authorization also prior.authorize?1310115kin
three-other: respects.

 

3 i - The ?rst-signi?cant difference between the '11 Match 2004f
(Presidential Authorization and prior rautliorlzatjims explieit assertion
thatthe exercise of his. Article II- authority ?displ ace[s] the proviSions
ref-law, Surveillance Act-sand'ehapter 1159 of Title 18 of
cede (ineluding {5251 1(1) relatihg-tO-exdusiVe the
extentof any con?iet between the provisions- and such exercises under Article 
SubseQuent Presidential Autlmrizatious did not include this particular language.

7.. . - .1 Second, to narrow the gap between the auth?o?ty given on
the face of prior authorizations and the-actual operation of the program by the NSA, the
terms governing the collection of telephony and Internet metadata were clari?ed. The
language for ?acquiring? both telephony and Internet metedota remained as it
had been, giving the NSA an?mr?ity to ?acquire? the metadata:

 

 

.. -- I. 3' 
~?gtl m. I 

aim Prim. Ht m1. A  
r. 03 rl?x?y" 1?3 I L. '5 MW Nks?l'??s . 

When?f) at least one~panyrto Such conn'mmicatio'n isoutside-

the UnitediStates; (131111013th .?to such communication is.

?11de to be a citizenoftbe United States, or based 0n

the factualand practical Considerations ofeveryday flife"ion
whiel'1;reasonable and-nprud'entipersons act, there are-speci?c

and  facts givingyreason Such.
communication relates to inter-national terrorism, or activities

"in grep'aration "therefor. .[Pres-itlentfal Authorization,

-1 .1- Maren 2004,13211'21. 403).]

Heweve?r,thisllanguagewaa new quali?ed by the following two subparagraphs:

 the Department of Defense may obtain, and?.tetain
headerlrouteI/addressingatype info ti 1d,
nse?dialiA?llch
-. 1+eml?fr11 bt?aitc?d . 
type..mfonnatlon,, hlcludin'g telecomnmr?cations dialing-type-
data, shall Occur. only in accordance with this authorization;
and
(ii) information, including
data, .is ?acquire: for.
,purpbse's: 403) above when, and only'when,
thelDepartment of Defenseihas searched for and retrieved
information, including
telee ethnIuI?eations dialingatype- not when the
ssingetype
3 B?data,

 
  
  

04 authorizatio for the ?rst time scught: to

te phony and Internet 

I out the metadata colleCted could
only'be in accordance with any of the three conditions set forth in.

    
    

   
 
 

..s. .1?53.  2.- 

      

 

{4153

 

 



1.1"the third departure-tram prior.air-alternationswas 'theiaelus'ion ofa

Mersey General of the to roan-sad legality

[?li?zPIjiDI authorizing the'sarne activities as are extendediby?
this Jauthorjiza?m.? (Id. at para. 
Card. informed Carney? by telephoneon the 11 March 20045

-that-theL-P:esidenthad signed the at: approximarery razed
"Gonzales =?eal_1ed- .Goldsn?tlr to infera?n him, that the President, "in?i'ssning the authorization,

hadmadeian interpretation of. law concerning his authorities and-that-DQJE should not aetzi'n,
contradiotionof the Presidentis determinations;

a Also" at 12:00 on-lii March, Mueller :a't the?mtite-Honse.
According- to Muell'er?s notes, Card summoned Mueller to his of?ce to bring Mueller up.
tordate on-therevents of the including the brie?ng of the Congressional
leaders thesprior afternoon and the President's issuance-of?le new authorization without
DoI?s'certi?cation as to legality. In addition1 Card told-Mueller that-if 
co?ld; be faundby 6 May 2004, when the .Mareh?authorizatien was set to expire, the
program. would be discontinued;

4: AceOrding to Mtieller?s-no?tes, Card- aclmOWIedged?t'o Mueller that
PresidentlBush hadsent him and Gonzalesto the,ho'spita1toseek; Ashero?is Certi?cation
for. the-1 1 March" 2004 authorization, but. 'tlratAs?l'mro?gh'adsaidhe Was too ill. tog?make the:
detennination an d-that Carney Was the AetingAttOH-tey General. Mueller: wrote. thathe
the failure to? have Do] representation at: the?ongressional brie?ng and the
attempt to haveAshctott certify the" without going through Conley ?gaVe the
strong-perception that the [White House] was trying to (loan end run around. the Acting
[Attorneys-General] whom they leiewite have serious concerns asto the legality of portions

 

:oftheprogranr.? Card responded that her?and Gonzales were. unaware at?the time, ofthe

hespital visit that Carney. was the Acting Attorney G'Cnefral, andthat they-had only been
following the. directions. President.
 Severalsenior Del and: FBI of?cials, including Conley, Goldsmith, and

Mueller cohsidered resigning after- the 1 1' March 2004 Presidential AuthoriZatior-rwas

sigriedeithout DoJ?s concurrence. Theseof?cials citedas reasons for considering
reSignation themanner in which the White House had handled its di5pute with 1301 and the
treatment of Ashcroft, among other reasons.

On 12 March 2004, Mueller drafted by hand a letter stating, in part: ?[A]fter
reviewing the plain language of the MBA statute, and the order issued yesterday by the
President . . . and in the absence of further clari?catidn of the legality of the program from
the Attorney General,.I am forced to withdraw the FBI from participation in the program.

 

 

 

 

Partners-should the President order-the Continuation of the participat?iOn in'the
Prostate, ??ndi in the-absenceo?f further l'e galadvi'ce from "the AG, I Would be "Constrainedito:

resign asDireetoreor?ie Mueller told ?us he- plannedon having the letter typedand
then tendering-it, but that based on subsequent events his resignation was not necessary;

.7  .i .Muellersent Comey a memorandum seeking, guidance on how the FBI
shouldproceed inilight of developments. related to the Presidential AuthorizatiOnst The I
memorandUmaSked ?Whether FBI agents detailed to theNSA to wOrlc on the PSP sage. b1) b3)
- Should contii?i'" - based 0' b7E

and whether  

     
    
 

   
 

  
 
   

      

 

 

 On" {hemoniing of '12 March, Comeyand Mueller attended?the regular daily
threat brie?ng-with thePresident in the Oval O?ice. Comey said that, following the
brie?ng,PresidentBush called him into the-President?fspriVate study for" an ?unscheduled
message-r Conley told the President of DoJ?s legal coneerns regardingthe-PSP.
According tozCom?ey, the: President?s response indicated that he had not been fully
informed Comey told the PreSi'dent that the President?s staff had been
adVised of these issues ?for weeks.? Ace?0rdin?g ?to- C'omey, the Presidentsa-id that he just
needed-untlil'rMayt-ig (thedate of the nentgauthorization), and that if he could not get
C'orng?ress'rtof?x PISA by {then he would shut down the program. The President emphasized
the impedance of'the program and. that it ?saves lives.?

7. 1   The President next met wi?tMueller. According 
Mueller President of his concerns regarding the continued participation
the-program?withoUt- an opinion from the Attorney General as to its legality, and that he
was considerimg resigning if the FBI were directed to continue to participate without the:
.concurrenCe of the Attorney General, The President directed Mueller to meet with Cemey
andzether principals to address the legal concerns so that the, FBI could continue

pattieipating?inthe program ?as appropriate under the law.? Comey decided not to direct
to cease GQOperati?ngr with the NSA in conjunction?with the PSP. Comey?s decision
is. ,doemnented'in a on'eupage memorandum from Goldsmith to Comey- in which Goldsmith
explained that the President, as Commander?imChief and Chief Enecutive with the
eo?nStituti'onalduty 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.

a The same day, an interagency working group was convened to continue
reanalyzi'ng 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, Corney drafted a memorandum to
Gonzales setting out Comey's advice to a at in the PSP. Come: advised:

- an as

      
     
    

a. Carney was    



  
  

ongoing 'eotllectgtanget  raised??serious iSSLtesi"?bout
Congres?ieealhe??c write the egal? besiefOrthe pregram ie the.
tofaussei't?hie authorityto override an otherwise appl'ieabte Act-of;
  

     
   

1?1 1. c1

 Gonztiles' letter 011th eyeuhig of 16' i'Merch. Thelettetstat?ed; part:

nleInOI'andum appears to have?beeubased on. a
misunderstanding of the President?s expectations regarding?
the "conductof?the Depattmentt of Justice. While the'PLfesident?
Was,? and-teinai?ns, interested in. any thoughts the Department
o?fHJLIstieemay ha?veon alternative Ways to achieve effectiVely
theg-oa'l'sef the activities. authorized by the Presidentiala
Authorization of March 1 1, 2004h't11e President has ad?dreSSe?d
d??nitively' for the. EXchtiveiBtaneh in. the Presidential

Authorization the of the law.

 

   
 

PteaidentialAuthorization;
I  I .    01119 March 2004,, the President signed, 
egftfi?ed-as- to  and legality, a~1nodi?oation of the 11 March 2004. Presidential
A'LithUtiZation. The modi?cation made two significant changes to therctirrent eumorization

     

 

 

 

 

 Ong?lMay..2004, Goldsmith and completed an OLC legal
ofthe are it was then operating. The memorandum
statedthat'the  passed shortly after the attacks of 11 September 2001
gave: the-President: authority to use both domestically and abroad ?all necessary and
.appjropriateafoifceg" includingss-IGWT capabilities, to prevent future acts of international
terrorisIn again-st the. United States. Ac'cording to the memorandum, the AUMF was
properlyread as an expresSjauthoriz?ation to. conduct targeted electronic surveillance
af?liates, the entities responsible for attacking the United States,
thereby supporting thePresident?s directives to conduct these activities under the PSP.
MirohyofftIE-ilegal? reasoning the 6 May 2004 OLC memorandum was publicly released
by DoIin a ?White Paper?L??Legal Authorities Supporting the Activities 'of the National
Sfe'eintity Agency Described by the on 19 January 2006 after the content

 

 

at" ?V?tm?l Nl' il'?'llf'iw? 
. . . mum unn- I In uinn ?lb 1! "1?53  




egllection pbrtiQIl-thh?prngam' was Yarkames and
:?c?on?nned by 'the.?PreSitleiit in ecember 200.5 . I

(U) Restrictions; en: {homage to: the
President's-Surveillamce Pregr'am  
lmpetled Department ewusnce Legal Renew

7  1 i? .  ., The DOI found it extraordinary andinappropriatethat?a-single
D,le attainey, John. Yon-,- Was irelied'uPonto conduct .tli?e initial legal asses slmen?tsof theiPSP;
and. thatlt?helacksoftoversight-and review of work, which  centnaryto.,t11e
- enemaeg practieegof contributed to a) legal analysis .ef?leFP-S?P that, at a minimum,
was facthally ?awed, De?ciencies in the. legal mommvendums b'ec?anieepparent once
additional?DbJ attorneys werereedinto the program a
operation. The White ?Houseis strict controls over
.the?PSP Del ?3 ability to provide the base-availab 1e:
.a'dVice'aboutithepro grain. The 1301 IG 1 also .coneludedth?atthe circumstances: plainly
;calledfor-additionalDel resources to he applied to the? 11eg?ilvreView ef?thespi?ogem, and
thatxit-was theAttomey .General?s.responsibility tube-aware ofthis need  toltalce steps
to. address it; However, the Do] DIG could aggressively
Songht-edditional. teed-Aims to "easier with legal review?of the-program prior to 2003
 ec?ause Ashcro'?did'not agree to be .intenrieWedL I

 

SURVEILLANCE
To FGREIGN 
SURVEILLANCE ACT AUTHORITY

 Internetj??etadata collection. 
Transition to; Operation Under ?Authority

    

 

v- i - The government?s

FIS
diTr 

A application, entitled ?Application for Pen
4 

     

   

     

:a toeolcag'einlud?ed:

A prepose'd order authorizing the collection activity and-secondary orders
mandating carriers- to COOPBIELEB.

?a A-de?elaration. by Hayden explaining the technical aspects of "the proposed.
Internet metadata collection and identifying the government Of?cial

 

Swn?: ILrl/ :?x?giallg

 

tar aurl'trap and devices. cuy?l?ed


tib'n by Tenet- describ'in'g- the fhiiea?t "posed  

t0 the United States.   
In: statingi-fhatrthe l?cely to :ba
RZTT devices Wag=1?fe??nt tom ?Qngei'ng iri'Ves?g?a?ong

USS 
for Of 50   


  
 

    

 
   
 

a: Accrti?cafion fm?

  
  
  

 

     

    

      

     

      

   

 

 

 

 wtained ftQm-the?P

 1?91:erth against internatiOyal terrorism, asrequifedlby

 1842(6),

 46>: A?memotandmn of law andffact?in support of'the application.

 ure authority undergFISA

 

 this timeless:aromxdiradltmu .au'thg??ri??s: provided unjdefEI-SQA, :(Sge

 i   The goypmment 

 metadata-mgt bynot-ingithat the. metadata? soughtic?ompp?w wi?x?

 car-signaling data. desc?bed: 1'11:

 HEN-Bade??itious  devices, The govemrneut

 neXtarguedgthat?the information ?lctelyto be obtajmdi?'cmtha relevant b1, b3,

 tcsi all-oilgoihg hweg?gation to protect?against int??lation?l terrorism, 31311.6 b7E

 Attorn' ~LGe1lex'aliunder 50 ortwefthis"?certi?aati?n ofr?le-Yan?$.gpve?r?me?t?al?so?s gal-mat-


discover enemy. communications;

thei?f?fi?b?tbf the pmp?o?sea common 91;,
that atil'castiane and 0131:1176 trat?jsmit-te 
for locations out 'deth'e United States,

(3.   
Was- ?Werwhelm'ingly lace-1v
?tted.   ?Was jdestina

 

    

database. The NSA were to?be bricfedlby ?Dncg??gg the
Giraumstauces und?r which the database 00111de queried. 311d. 2111 W0111d?1?13V35t0 the

 

 

 

 

,japproved by 011le seven senior. NSAoi??cialsi The appl-icatiOn proposed that. qneries of
Internet?inetadata archive would be perfo fined when the-?Eternet communication
address met-the. following standard:
[Baased on the factual and practical eonsiderations of 
everyday life on which reasonable :andprudent persons act,
there are facts giving riSe to a reasonable artist-liable: suspicion
theta-part The docume?ts- 
?it?tiidscl?.t0 use the?Inter?etm?tadata to develop. BOntact cha?f l?       
estimated that its queries ofthe database Would gene ate. 1313450.E 
to: the-FBI and  each year. Of these;- t-ips, the NSA projected that 2'5: percent Would:
'incjlilde-US.1sperscn information, amounting to leads including nifnna'tion. on about ?four
to  persons each month.? 

V.   fr 7' On. 1.4 July-32004, Kollar?liotelly signed a-Pe?n Register and Trap and
?Trace: Qpinidh and Otder Order) based on 11er??ndings. that the:131toposed,Collection
so steamer metadata - and?the - government?s proposed. controls ever of
thiszint'onnation satis?ed the requirements The; 'Orderewhich 'granted??ie-
:governinent?sgiappliCati'OH in all key respects, approved feta eiod 
hill-1:116 United-States. ofInternet- inetada rib-5}" ?blt3

      
 

  

 

. The Order also required-the government to comply with certain
additional restrictions and procedures either adapted ?'om'or not originally proposed. in-the
amended the goverrnnent?s proposed. querying, standard, consiSte'nt
With ?5 1842(e)(2), to-includethe proviso thatthe-NSA may query-the d'atabaSe
based. on its reasonable articulable suspioi - -
communication address is seen  
?lattiVi?de'cl, hoWe-ver, that a
not beregarded as associated  
the basis of activities that are pro irst Amendment to theCOnStitUtion.?
Regarding the stering, accessing, and disseminating of the Internet nietadata obtained by
theNSA, the FISC 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 in?formati ccessed, to retrieval re re  i .e i

sued separate orders  I 7    I  I 7  

    

b1, b3,
b7E

  
  
  
 
 

       
   
 
 

  
 

eso- ecy? ofthe activities.

 

 

.  . 7 Several officials told us that Obtaining the PRITT Order was seen :asa

snceess,  ,thattheife was general agreement that the govermne?nt had securedall the

 ?conduct- the bulk- Internet metadata collection
1 A 1'  The FISC ?rst renewed the EMT Order 0 

. 90u'd'ay intervals, In these 

 13?: it approvedwitlithe- b1, 133?

Under tenew app we 10118, the scope of - 

..7 21.: 

 

         
              
 
   
   
 

r1

 

Department-of 
eldest

  

  

?led a
ti 1.1g seen"   

     
 

      
  
  
  

ff 1? . l) the FISC issued 21 Compliance Order stating that
the violated its: Wnpifopos?eid?l 'tations." The FISC stated  -
the duration of the Violations, which extended from 14 Inly throng  
 tlette'Comt was reluctant to issue a renewal of the PM 7
 However, Keller-Kotelly signed a Renewal Order 0 

the NBA to continue collecting Intentet metadata under 0 terms similar to' the

   
 

 

 

 

Mm an?!!an 
uh?: il Ill-5'4:

   

 

 

  

if Telephony Metadata??eliectten
Transition temper-action ?UnderFtS?A [authority

 

i Another part of the PSP, bull: collection of telephony metadata, was

 FISA authority in May 2006. As With Internet metadatai, thebullc.na1nire"of*

lection provided the the ability to. c011duct Contact Chainijn 

The?transition ofbullc "telephony metadata Collecuon"ftonilPres'idential

authority: to ?FTISAiauthority relied on PISA that authorized the'FBI to 'seelcan
order Horn the, 180 compelling the production of.?anjy tangible things.?- from anybusin'ess,

organization, or entity, provided the items are fer anauthori?zed hrVeStigation to protect-

interr'rational terrorism or clandestineintelii'gence activities, (See

 Orders under-this proviSion arecorranonly referredth as ?Sectioni211'5?
ordersi'riret?erenCe to Section-215 of the USA PATRIOT Act; which: amended the
-?husiues$ records?? provision in TitleV of F1 Susi.18 Ines?t?angible ?ange?? sought?tuthis

?Sectional-.215 application were the telephone- call detail records of certain
telecommunications service providers.

7 The timing ofthe decision. in May 2:005'i0, sacks order er'?lB
bulk- collection of telephony ametadata was driven primarily by'external events. A
inThe New York Times entitled? ?Bush?LetsUS. Spylen are 

i .
.9.   

 

 
 
 

 7? cases; a -003; "in rape 3s

Bu pub 31' con?nned that he had authbrized the NSA to intercept?the international
communications of people with known links to al-Qa?ida and related terroriSt
organizations. 011 19 Januaiy 2006, D01 issued its WiitePaper?m?iegal Authorities
Supporting the Activities of the National Security Agency Described by the 
that addressed in an unclassi?ed form the legal basis for the collection activities described
in TheNei-v York imes article and continued by the President.

 

 

Him-J Prior?to the enact'rnent of Section 215 cf the USA PATRIOT Act; the TFISA ?business records" provisions
Were iimitedto 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.

 

 

 

 

       

      
    
  

this aspect ofthe program inearly 200.6, Bia 7 1113/

leipated that article would attract
when published. As anticipatedon 1.1 May 2006, the USA
 published-the results of its investigation in an article-entitled, l-Ias Massive
{Database oiiAnier?iCan Phone Calls." 

  
     
  

I 'On 23 May 2006, the FBI?led with the 131393. Section-?21
I i assist the NSA 
a.  . a  . in supp'o? ofth
 Iiny?estigationsthen pe1 hd'Otli'er ICeperatiohs. 1e--appliCatien reque'St'ed
aaiprdar? certain telecommunicatiOns companies to produce (forfthe duration of
thew-?ay order). calldetail retzords relating to all telephone communications maintained
by the carrier's. Aceordhig to the application, theinaj?erity efthe-telepliony nie'tadata
provided to. the IN SA was expected to. involyecommitnications that Were (1) between-
dd'?les?tic and fereign lecations, 01? (2) Wholly within ithe'United?States, includingflocml

telephone calls; The appi .st'irnated: that the collectionwe?uld involve the 
recs-lying appraidmately  

5 application
dL?identi .

    
    

 

 
 

   

 

b1, b3,
b7E

   

call detail records perday??ii

- a . Thesappheation acknowledged that the vast colleCtion WOuldfinclude
communications records of U3. persons located Within the United'States who were not the
any FBI intre?stigation. However, relying on; the precedent established by the

1' at: then l-icaticn asserted that the colle'ctionwas needed for the  to ?nd b1,
  nd to identify unknown Operatives, some of whom ma? b3
tieUtStates- or in. communication. with persons, by using contact b7E?:1
 Dita As was done under the PSP, the- calldetail. records would he entered in an
database and would query tie data 'tlijarticular teleph numbers to
identify Connections with other numbers (b in)" he proposed
query standard in the Section 215 applic an essentially was the same standard applied
under the PSP in connection with telephony nietadata, and the same standard the FISC
authorized in the Order for Internet metadata. The Section 215 application also

included in-the proposed queiy standard the First Amendment proviso that the F180 added
to. the query standard.

   
  

 

  

    

 

    

  

 

19W):

records rather th - I.  I. 

 

age amount of telephony metadata collected per day
 stirnated in the applieaticn.

   





?24:  sord'er-atap roxrrnately 90~day intervals, with

 

?tar-3r? an r? anht?f? . 1' 
C)  .- ms marl? @lt?l

I   7 On 24 May 2-006, the FISC approved the Section 215 applicatioir,
 thatthere werereasonable grounds .to' believe that the telephony metadatarecoricls.
sought We?re relevant investigations the FBI was conducting to protect against
'int'emat-iCanal-terrorism. The IFISC Section 215 order: incoipm?ated each: of the procedures
proposed in application relating to access to and. use. of the metad'ata,_

 

 :Wete identical to those included in the hrtemetmetadat'a Order.

 Through Marci-?1. 2009,? the renewed the authorities granted in-ithe.
 some-mo diz?cations sought by
- la the FISC anted ?anIAuust12006-motion reuest'intr

   

  

   

I the terms" of the MEG 3, grant of
lectio'n of telephony metadata remained essential-'7

 a Nettie meninges use aft-he te p?
13:;  .  were authorized. to query the dataas they had under-the P8P,
and disseminate the results to the?FB I, the CIA, and other
toiletmnersi
3  a a  However, the FISC drastically changed the authority contained inits
Martin 215 Order after it was noti?ed in January 2009 that the .NSA had been
queryingthenietadata inqa manner that was not authorized by the court?s Section 215
Order '8 ec?it?ially, the SA, on a daily basis, was automatically querying the metadata
 1 ??om an alert list that had notrbeen determined to
satisfy the: reasonable 'articulablcsuspicion standard required by to access the
telephony metadata for search or analysis purposes.

.f a 7 On 2' March. 2.009, the FISC issued an order that addressed the
compliance had been reported in January 2009, the go Vernment?s
eXplanatimr for their--OCC-urrence, and the'remedial and prospective measures being taken in
response. The FISC stated its concerns with the telephony metadata program and its lack
of?tconfidence ?that the government is doing its utmost to ensure that those responsible for
implementation fully comply with the Court?s orders.? Nonetheless, the FISC authorized
the govemment'to continue collecting telephony metadata under the Section 215 Orders,
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
.eonit?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. .

 

  
 
 

 

 

ran 3.1' mas
.y


tr?O?w- VMVH


3.5
a

 

 

 

.1  ,5 However, "believing-that" 
personiinfennatien pursuant "to 
  the metadata collected ?until 511911 time ag?ie
gamma-eat taxable; toplgtestOre the Court-2?s- con?denceithati'the *goivenuii cat can and.- will
approved piecedures?iforac?eSSiris Sudh'data?? A The. 
Diagonacaseahyu?case basis, .n?ecgp?iestauthorityfromE the a.
number toobt?tin?foreign intelligence The  ?also authorizedthe

government to query ,?ie?metadata Withoutcoilrtapprovallto protect against an imminent

threat- to human life, provided the the loo-newfaa?the 
day. 

 

   

Content collection Transition
to Qperation Underli=lSAiAuthority

   

The last part of the PSP-htought under-FISHauthority'was- telephone-
and Internet {communications ,As'exp1atined-b plow? theeffo?vto
accomplishitl?s tranSition was legally and. operationally complex audii?eQuifet-lcan enoniious
effOft?on ?ie-par't of and the FISC, The FISC judge'who ?ml?dzan the initial
application appmved the uncanv entiona'l legal appro ach the. goyeimnent preposed to: ?t
content collection activitieswithin However;  also;judgerrespensmle for
considerhig-the government?s tenewa'l application rejected ithelegalappr'oaCh. This
resulted-in :Signi?Can?t diminution inauthorized'survreillance activity initializing iconte'nt
collection and. hastened "the enactment :of'lesiSEEL?ticnthet and
presided the:govenmient?surveillance authorities 
. -

     

 

   

 

 

appIiCation sought to replacethe conventionai an 7 . vidual
applications each time the goveminent had probable cause to believe thatta?particular
f?lephone- number or Internet communication address was 'h?eing used oraleut to be used
Dy members or agents of aforei'gn power.  the place of the indiifidua-lized proceSs, the
application proposed that the FISC establish brOad parameters for theeinterceptiOn off

so mmunicationse?wthe groups that can be targeted and the loCa-tions wherei?the surveillance
can be conducted?and thatNSA of?cials, rather than ISC 'ud' es :detenninewithinithese
parameter-sthe particular selectors to be collected against. 

      
  

  

"nu-dram
u. . ..-.. IrlIlm HILL. mmulli'i ?t



 

 
    
   

7 "7 ethertawithBISGrewewand supetivrsion; The govenmfient .s approach 111 the.

.. pli?atio'nrestedvona broad interpretation of the statutory term ?facility? and the
1136 of: minimization pi?oeedur?es by NSA of?cials: to make-probable cause determinations
?aboutihdividuallselectOrS, rather than have a FISC judge make such detem?nations.

armaments content-2a lioation to ?nd

    
   
 
   
 

Ice probable
. sequenitly reviewed by the FISC) aboutwhether individual telephone
Intent  seats of

and whether the
omtnanma?onsef addresses. are to or ?forn a foreign country. Wren
probablecause ?ndhag?ewere made, the SA could direct the telecommunications
rcolnpal?es :to'pfovitie the content of Commanications assoeiatecl with those telephone
numbers and Internet communications addresses01110 January 2007, Judge Malcolm J. Howard approved.
menswear-eases  December 2006 content-app?liCation as it pertained to fereign
selfeetorsw?tetephone_ numbers and [ntemet communieations addresses reasonably believed
.to he usedby'individuals outside the United States. The effort to implement the order Was
a massive: undertaking for Doi andNSA. At the time of the order, the SA was activelyr
tasking. for-content collection oreign selectorswintemet
?eeimiiuliieat?ionsi-addtesses or-telephonenum'bers under authorityofdie PSP.

I of?thes?e- were ?led with Howard on an approved schedule of rolling:
submissions 'ovei' the 9.0+day duration ol?the order.
did not approve the govemrnent?s 13 DecemberZOO?
*cont?entapplicmion 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' to ?le a separate application for the internatiOnal calls of'
domestic selectorsthat took a more traditional approach. to PISA. 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 filed on 9 January 2007, which Howard approved the following day. The FISC
electors order approved by Howard for the ?nal time in
thas since expired.

 

   

 

 

     

 

 

 

  

-  i Dolls ?rst renewal application .
was} tiled onglofMareh-2'007 With Judge: Roger Vinson; the?fFISCgdutyjudgethat week. on
 2007, VinSQno'rally' advised Do] that hescould] not approvethe: application and,
(1113 . April?ZQOl'he issued an order and Memorandum-Opinien 'exljlainingthereasoning-
forti?cconctusion. Vinson Wrote that Dol?s foreignselectors renewal application-coneeras:
.an=?exigenieiy important :iseue? regarding who may make probable cause 
detemtine the individuals and?the Communications that can be- subjected to electronic
stiIVei-l?lfance- under-FISH, In. Vinson?s view; the quest-ion was Whether probablecause:
determinations- are required to "be triade by the FISC through proeedures, established by
statutepor Whether the  may make such determinations under. analternati'v'e:
?minimizatiOn. procedtnes.? Vinson concluded, baSed on past practice
under-FISA-and the Congressional intent underlying-the statute, that prdbable can-Se
determinations must be made bythe FIS

.WVi11s011 also wrote that he was mindful of. the government?s argument
that proposed approach to foreign selectors was-necessary to provide or
enhance ?fspeed with which the NSA responds to. threats, and that
foreign intelligence information may be lost in the time it takesfto obtain Attorney General
emergenCy autherizations. However, in re?ected a
 struck?by?Congress between?privaCy interests and the need-to obtain foreign
nintell-igenceinforin?ation, and untilj?Con'gresjs rtoolclegistatiVe act-ion-on-FISA to respond to.
the F180 must apply the statute?s procedures. He concluded
that the gove?mrnent?sapplicatiOn Sought to-strike' a different balance for the smeeili-anee- of
foreign telephone numb ers and Internet addresses. Vinson rejected this
position, Stating,f?the' statute applies-the same requirements to aneurveillanc?e of 
"facilities used. overseas: as it does to surveillance of facilities used in the United.rStates.?
Vinson-suggestedthat, ?Congress should also consider'clarifyinglor modifying the scepe of
 andfo'tithis Court?s jurisdiction with regard to such: facilities . . Vinson?s
sUggestion- Was .a spur to Congress to consider PISA nio'dernizatiOn.legislation in the
summer of 2007.

. InMay 2007, Do] ?led, and Vinson approved, a revised
foreign selectors application that took a more traditional approach to PISA. Although the
revised approach sought to preserve some of the ?Speed and agility? the govemrnent had
under Howard?s order, the comparatively laborious processfor targeting foreign selectOrs
under VinSon?s ordercaused the government to place only 'a fractiOn of the desired foreign
selectors under coverage. The number of foreign on collection dropped from
abet; underthe January 2007 order to abou nder 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?U.S. persons reaSOnablybelieved to be located
the United States, provided a signi?cant purpose of the acquisition pertains to.
foreign intelligence. The Protect America Act effectively superseded Vinson?s foreign-

  
   

 

 

 

 

SL313 ($01.78. Order- and the government therefore did not: i orderwhen' it
exp?il?edon :24. August .2007;

 The 1301 1G concluded that-sevexal .cOliSldefations 
from Presidential. authority to 0?04;
eSpeei?ally less a temporary-respiOIisle-to the-September I?ltzifermti'st
attacks?attd more a- permanent SuWe?la'nCe tool. These?considerations included 

- Bilbstantialeffect= On privacy interests. of: 'legal reasoning.
?n which the: ptfo'gtam 1633th for several yeafs; and? ?le-SubstantialfeStEictions :Vplace?d'mt I
and. access to and use ofPIQgramad.er-ived informatiOH-adueto the
highly of IG alSo {recommended that-JDQJ' carefully 
FnQ?i'torithe collect-ion, use, and retention, of the information.- that' is: now collected under
FIS?faulhorily and, together with other agencies, continue-to eitaniine?izts: value to the
:gov?r?menti?s- ongoing couute1'terror-is mefforts.

to); IMPACT OF THE SURVEILLANCE
COMMUNITY
.t EOUNTERTERRORISM EFFORTS
(U) Senior-Intelligence {communitym?cials
Believe-Thelma President?s SurveillancerP?roemm
Filled Intelligence {Gap

  

  IIayclen, Goss, McLaughlin, and. other senior Of?cials-We
interiewed told. us that the PSP addressed. agap in intelligence collection. The. IC.L11eecl?d
ilicveasedaEICGeSSfto international  
Communicatiml wires, particularly international communications ?iatlori?ginateclj? 
States. However, collection 
authorization under PISA, land-?fthere was: Widespread beliefttniic?glse?ier 

 

   
  
 
 

the Septembet  hijackers Klialicl Almihdhar .a?d Nawaf Alhazmi almost
Certainly Would have been identified and located.

 According to senior NSA ffocele in
ll? scam between foreign-and

   

 

 

Ell)

 

  
  
  

 

..   toldus thatfhe- alWays felt-the was and successlul.
ation Was-that the'CIA and the FBI would be oust ers of re - arm?derived
?t into their" respective operations.

           
       

told ?usi?thattl'ie- program helped to determine that terroris co

the {Thith States to the: extent that had been feared.
 Difficulty in Assessing the impact of
the Program

to assess the overall impact of PSP c.1110 counterterrorism
efforts; Except for theFBI, ICrorganizations that participated in the PSP did not have
or tr how PSPireporting was used.

    
  
 

    

   

 
   

were d1 tha he P8P wasoneo a mun . alytic
tools that were available to IC personnel, and that, because PSP reporting was used in
conjunction With reporting from?other intelligence sources, it was dif?cult to attribute the
success of particular counterterrorism operations exclusively to the PSP.

(U) impact of the President's Surveillance

Program on Counterterrorlsm Efforts

D01 IG found it dif?cult to assess or quantify the impact of the PSP on
FBIcounterterror?ism 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 counteiterrorisni investigatidns, the pro gram generally played a limited role
in. the FBI's overall counterteirorism efforts. Several of?cials we intervieWed suggested
that the program proV-ided an ?early warning system? to allow the IC to detect potential

 

 

 

6?1




  
    
 

 ?h   

terrorist. attacks, even if the uncoveredevidence of
preparations fortsuchzat'taclgs.

(U) FBI Efforts toAssess the
Value cit-the Program

 -.  The FBI made several attempts toiiassess the PSP to FBI
countertet-rotfismefforts. E12004 andv'ag?ain'in 200.6, of General Counsel?
assess the value to the FBI. of PS?P?inforn-tation. This ?rst assessment
reliedon 'aneodotal infonna?tion and in?fontial ?eld offices. The-200.16-
:aSse's'snieiit was l'iniited' to the aspect of the TSP disclosed in The New York Timesartiele
and snb's'oquentl'y eon-?nnedby the President, Le, content collection.

 The FBI undertook two more" e??ortsto study impact oniFBI
Operations-in early 2006. In both of these statisticalistudi?es, the FBI sought'to detennin,ze
what percentage of PSP tippers resulted in ?Signi?cant the identification
r-of?teiroriSt subjects or: activity on  soil.? consideth atieper signi?Cant-if' it
led to any of-t-hree; investigatiVe results: the identi?cation. offal terrorist, the deportatin.
ffom thetlnitea States of aasuspectedterrorist, or thesdeveloprnent of an asset that can
r?pmt?about the ?cti??eso?f terroi'i's'ts;

 'he ?rst-study amnian a-sampl?e 
7 tippers the provided theFBI from approximately?etober
. De tribe 20075; The study found. that 'the'leads made signifibant b7E
contributloue? as de?ned above The study extrapolated  
of leads anddetermined that one could expect to fntd: the 

 

   
 
   

  

    

  
  

    
 
 

 
   

the

   
 
      

a . I
FBI- comiterterronsm e?i?fmts. The studies did explicit conclusions on. the
program?s useft?ness. Hmvev?er, based in part 011 the results of the-?rst study, FBI
executive management, including Mueller and Deputy-Directoriolm Pistole, concluded
that the Was ?Of value.?

(U) Judgmenta! Assessments
of the Program

intewi'ewed FBI headquarters and ?eld, of?ce personnel who regularly
handled PSP information for their assessments of the impact of program infomtatio?n on
FBI counterterrorism efforts. The FBI personnel we interviewed were generally stipporti've
of the .PSP- as ?one tool of many" in the a11ti~terrori51n efforts that ?could help more
cases for-ward?. .E-Vell though most loads were determined not to have any connection to
terrori51n,_many of the FBI of?cials believed the mere possibility of a termrist connection
made inVestigating the tips 

 

 

 

i i  Itlext/ever2 the eitceptional-?ly compartinented manifreof the; program. created
Seme agents criticized PS?P'reports? ferprottidjing'
'insuffioientidetails- about the foreign individuals alleged- V'Tirw01ved interrorismi Others

the prohibiti?Qn on usin elimination in judicial

  

processemmh as-?in  applications, although none Of  field of?ce agents-we, 131) 133,
intel'vieWedfeould? identify an investigation- in hich the restrictions adherSely 'affected the b7E

case. d? untert?errorism programs- at'the?FBI ?eldinf?ces we visited
werecriitical ofth project for failing to adequately prioritize threat
infomiation..and, because of the pro graln?s.special status, fer limiting the managers? ability
to prioritize the leads in the manner they felt was warrantedby the information.

 Mneller'told us that the PSP was useful. He said the FBI must fellowm'ery
lead it receives in orderto prevent ?ler terrorist attacks and thatto. the extent such
information can be gathered and used legally it must be exploited; He. stated that he
?would potency ofa program based on the percentage of hits.? Mueller
added that-as a.general-n1atter, it is very dif?cult to quantify the eit?ectiveness of an 
intelligeneegprogram without ?tagging? the leads that are produced inercler to evaluate the
rdlfe theprogramiinformation played in. any-investigation.

  

 

int pact of the President?s Suweillahce Program
on Gh?t? Countert?rroriem Operations

(U) The'Cl?ADid Not Systematically
Assess the Effectiveness of the "Program

W??m CIAdid not implement procedures to systematically assess the
of the PSP and did not routinely document whether particular
ESP-reloading had-contributed tosucoess'ful countertel-rorisnr Operations. CIA officials,
including Hayden, told-us that reporting was used in conjtinc?tidn with reporting. ?ora.
other intelligenCe sources; consequently, it is dif?cult to attribute the-SucceSS of particular
counterterrerism op exclusively to the PSP. In a May 2006 brie?ng to the 8801,
the Deputy Director, said that PSP reporting was-rarely the sole basis for an
intelligence success, but that it ??equen?tly playeda supporting. role. He went onto state
that the program was an additional resource to enhance the CLASS 11nd ding of. terrorist
networks and to help identify potential threats to the homeland. Othe fticials we
interviewed saidthat the PSP was one of many tools available to them, and that the tools

coinhinati011

  
  
 

 
  

 

     

 

Man-m hnnt-rmr?h
urn: In um?

 



 

 limited information on how program. reperting' - contribjnted'to operations?
and  unable to otters-Ili-use?llness

  
  

 

?HES?Vefai Factors Hindered'CIA.
Utilization of "the Program

 IG-eoncliuded.thatseveral factors hindered-the CIAin-makingjfitll
use-of t?e'capabilitiesr o'f'the PEP. Many  ot?eialsetold 11.5; persomel
level were '1?ead?into the. At .theg'prograniis inception; a. dislarop'oi-tionatfe:

 - 

  

      
 
 
 

the delimit)? etvteenvthe number of $511.19? CIA managers

ad ?11tio='PS=P and-:tlle-number of werlc-ingeIeVel  personnel read'into the program
resulted-in tooi?fe'w to :ful-ly?utilize ESP infonnationafortargeting and

   

 
 

 
  
 

analysis;
 ivorl?ingalevel' and targeting
of?cers Who?- elreadiinto'the had too many-compe ting priorities, andth 'v

  
  

.o?ther infonnation sources and analytic tools available to them; to fully tit-i?liz?e BPS-P 
?oft-iCials-lalsQ tol?cl nathat much of the PSP reportng was vagueor without 
.led and targeting of?cers to rely more heavily on other information sources and
analytic tecl's?, WltiCh were. more easily secessed and timely than the PSP.

WEE of?cers said that the PSP would have been more fully 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 beyond the initial read in
to the program. Many CIA of?cers we interviewed said that the instruction provided in the
brie?ng was not suf?cient and that they were surprised and frustrated by the lack of
additional guidance. Some of?cers toldius that there was insuf?cieritjegtll guidance on the

us of PSP-doriveclinfornlation. .
The factors: thathindered the CIA in making full use of the PSP might have

been-mitigated if the CIA had designatedE an individualatan of
managerial authority, who p05se55?d knowledge of both the PSP and CIA countenerrorism
?aetiviti?es, to be responsible and acConntable for overseeing CIA participation in the 

 

we? .1 was: i rm
641? T553 i i it VII 

 

 

Gennterlermrism [Efforts
bills) 

 

OTC characterized the PSP as: a use?il
?toelgf?b ?11 Itpre?gr? 11 Was only one of several valuable sources of
information aVailable to them. In their View, PEEP-derived infomiation was not of?greater
value than other sources. of?in'telli?gencc. Although NCTC we interviewed could
Where PSP information provided what they considered
they remember. attending meetings'where thebe?ne?ts
etthePSP Were regularly discussed.

     

Counterterreriem:?Dperations Supported by
the PreSident?S?5u'rv9illance Program

. i - Our efforts to independently identify how PSP information
imp?aCted terricrisr-n havestigationsand count'erterrorism operations were hampered by the
nature of theSe- acjti?Vi-ties, which as previously stated, frequently are predicated on multiple
sources of infonnation. Many of?cials we interviewed had dif?culty citing speci?c
instances whereaPSP reporting Contributed to a com1te1te1rori5111 success. The same b1, b3, b6,
gndf?l]  eases-tended to be cited as P8P Successes 'bypersorm?el we interviewed from 1376? ME

lg.

     
      

 

- new, Amm?mrm?gn unnummanin/ABWHMim??i??f?ml BE

m3
.Umb 6n?
:mn? 

mun.3. 
Fax.

 

 

rl\:kq. r. r, villimun?nk?u}

 

. .1: 
My fa 

    

   

 

 To so EVEELLANCE P?noeean
 . As part of this treView, the D01 IG Exam-ined?whether Attorney 
madefalsm inaccurate, 01'- 'misle'adingi,statements toCongress -1?elated to Aspects
of?the?PSP Were first disalosed publicly fin a..s?eries: of at?ti'cle's?fin. The. New Yo rit' Times in:
Dedel??beI-?QUDS. ?111 publicly con?nneda portion of the 
inhiehithe- called the tent) program?dos c?hin it as. the? intetdeption of the
sententz-of internatioan Cannmmieations. of peoplereasonah?ly believed to have. links to-
alaQaeda and? related organizations. Suhseqitentl?y, Gonzalesxwas QuestionedaboutNS?A
sun?eillance.activities.7 mo hearings hetere-theij enate' Judiciai'y 
February 2006 ?anttjuly 2-007.

?j Through media accounts and Barney?s Senate Judiciary Committee
May revealed-thath and the WhitesHouse-had amajor
?disagreementrelate?d to thePSP, which broughts'ever-al sealer-Doll and PBI?'of?elalsto'the
htihk?dfl?Sighatidhin'March 23004;. In his testimony before the senate.Judieiaty
Gonzalesstated thatthe dispute at i?ssuehetween Do} and the White House did
the ??TertoriSt Surveillance Program? that the President had eon?nned,,but
rathen'pertained to other intelligence activities. We believe this testimony created the
thiss:MpreSS'iOnl that the dispute eon'eemed activities entirely unrelated toi'the terrorist
surveillance program, whiehwas not accurate. In addition, we believe Gonzales?s
testimony- that attorneys did not have ?reservationsWtute House ovet a perlod of 1 the

11

these concerns had; been conveyed to 

issUe? was resolved.

 The IG recognizes that Gonzales was in the dif?cult position of
testifying about a highly classi?edprogram in an open forum. HoWeVer, Gonzales, as a
pantieipant in the March 2004 dispute between Do] and the White 
importantly, as the nation?s- chief law enforcement of?eer, had a duty to balaneehis
obligation not to disclOSe classi?ed 'htfonnation 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 confusing", i11aCoutate, and had the effect of IniSlea-dingthOSe
Who'wxere not knowledgeable about the program.

.i'rVT? man

I *letrWal



69
"El

i

,1

FT:

 

W) -.

 Pursuant to of the FISA Amendments Act of 2.008,, the Inspectors General
o'thhe DOD, the DUI, the CIA, he NBA, and the  conducted re?exes-cf theaPSP-'. lit-this
report and the accompanying individual reportsof the participating "le, We describehow, 
following, the terrorist attacks of 11 September .2001, the President-yenhanCed the 
SIGM?Colkctionauthorities in an effort. to "detect and prevent-actsoftentirism agai'nst'the-
Unitedgstates'.?

      

              

.  . . colleCted Signi?cant new- 111 crma ,?icn, .

contentiof Communications "into and-cut States, where one party to the
coinmunicaticn was reasonably believed to be a member of aI-Qa?ida, or its af?liates, or a?
group the President deteimined was in anned con?ict with the United?States. In-addition,
the President?autliOriaed the collection of signi?cant amounts or itelephOnyand Internet
metadata, analyzed this information for dissemination as leadsto the IC,
principally the CIA and the FBI. .As describedin the IG reports, the scope of this I
collection authority. changed over the course of the PSP. 

 The IG reports-describe the role of each of the participating agencies in
 including the-NSA?s managementiancl oversight cfthe cellection,.analysis, and
reporting and ?FBl'suse oiftheP'SPLder-ived intelligence-in their
corinterterrorisin efforts; the supth of the pro gram by prottiding'periodic threat
asseSSmentsyand the 1301?s role in analyzing and certifyingthe legalityof?thePSP? and
managing use of information in the judicial process.

(U) The reports also describe the conflicting views surr-omiding the legality of
aSpects of the PSP during 2-003 and 2004, the con?onta?ticn between of?cials-fromDoJ and
the White House about the legal basis. for parts of the program and the resolution of that
confliCt. The ensuingtransition of the PSP, in stages, from presidential authority to
statutmy authority under PISA, is also described in the 1G reports.

 The IGs also examined the impacth P8P mformatiorr on ccunterterrorism
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 intemational? that
transited domestic US. 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 dif?culty
evaluating the precise contribution of the PSP to counterterrorism efforts because it was
most often viewed as one source among many available analytic and. intelligence~gathering
tools inthese 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. Webelieve the retention-
and? useby lC organizations of information collected under the PSP and PISA, particularly
information on US. persons, should be carefully monitored.


?mum? in un wu "u HIMM {?hO
I

 

m.



This page.:intenti011a11yle? blank.


. 

 

 

 

 

 

 

 

 

 

 

fa

 

 

 

 
 

 

 

 

 

 


131 

w) imbue-mf- Gamma

(U) The emmen? afl?efense ungpeciar Gene-wars RQWEW
@f the President?s ?Suwei??ancez-Program   

the @eimm?f?ntel?igaence Agency Mamma?

'G?nen'jaf?is Rem-9w of CHA Pani?p?a?an in the P?ras?dem?s
Survei?lame  

(m The Nation-a! Security Agencerentra? Security Sewage

?lnspectar Gen?em?s [Raview of the Presid?en?s S-uwei?lance
uh "'45

 of the Director?Of Natiana? unteuigeme
Ensaectw GeneraPSr-Revitew of??hepa??icipal?an 05f the-GEN!

Suwei?l?ance Program.  
333357?53 

. Q: Li
?43 
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

GENERAL .




 



SECRETARY or DEFENSE

B-JEGT:  Report on Review of'th?e 'Presiidcnt?s iSurveillancePr-ogram
Report No.: (U)

(U) We are prov'idin this report for your infonnation, This report ful?lls the
DOD Inspector. .Gen'eral?s requirement pursuant to Section 3011 oanbiic Law. 110-
.2615 the Foreign Intelligence Surveillance AmendmentsA?ct . of 270078
(thesAct); Thi?sreporh along with reports preparedby the Inspectors General ?of
the Department of Justice:(DoD, the Of?ce of the Directoriof National Intelligence
(DN-I), central Intelligence Agency  the Na-tional?Secnrity Agency SA),
willbe SummariZetliin- acomprehensiy'e-Ieport .asrrequited by the Act.

   

 . 3 I i Results; The 08]) ?l?Oidi?ulihe establishment and
implementation Ofth?e was limited, withthe?burden of program executi on
residingiwithithe NSA..  determined that there. We?resixOSD officials with
390638 to: the?P-SP. These individuals had limited involvement5,_and. did? not make

any additional. tasking deciSions beyon?dithose directed for NSA implementation.
Weare aware efnoi-other-?OSD involvement in the PSP.

     

The Actrequire's the 163 Of the Do], DNI, NSA, the and
any other element of the intelligence conununity that participated in the
President?s Surveillance Program to'COrnplete a comprehensive review of,
with respect to the oversight authority and responsibility of each suohlG:
0? 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
0 Communications and participation of individuals/entities related to the
Program

 

I (U) The President?s Suwciliance Program is de?ned in the Act asthe intelligence activity involving
communications that was-authorized by the President during the period beginning on'September 1, 2001,
and ending on January 17, 2007, including the program referred to by the President in a radio address on
December 1-7, 2005 (commonly known as the Terrorist Surveillance Program).

 

 

Interaction with??ijor?ign I?ta?igence:Sumaillance. Courtaand
a Any-Mia: matters identi?ed  theiIGs;

          

.. . . 1 "We canducted??nis review
to the Of?ce of Of?DefenseLOSDg):
Departmef?tbf Defenss (DOD),  the establishment and implementation of the
?P'rasiidcn?s lSuWeiIlancei ngram W's interviewed.icurrents?uid fame;
Of?cials:Within?Si} that tothe-PSP, We wifhdtaw.ounrequestztoy
interview Secretary of- Dafanse?ates bacauss: he-W'as P8P
after: the magma ended. The ib?nner {Eif- DgfensesDy;LWb?1fow?itz
we. reviewed an relevant dowmentation
"within and-NBA related to involvementzinthe, we also:
reviewed domumutationsat DUI related to the PSP.

 I  

 

 The-16's- of?th?e' OJ and CIA- isgsue'd. 0112011.
?S?pt?mberrl 0., 2008.; In the interim report, 17116213013. IG s?tated' that he 'Wciuld?
Of?ce Of'the Secretary-Of Def?nse (08D)  
and ianlemautaiion of the: PSP. rajSF within. 7
DoD?pie'rformed? the requirements conducting-
a9refvf?wzof NSA involv emth with the-PS]? separate memorandum 
rbporat,

  

 amass

     

 of?the-PSP. .

to the PSP was 'limi?tedato "Six indiVidu?aLlsF Those "individuals are
SecretaryhfiDefenseRobert (Eats-s; ?f?r-mer Secretary ofDefeIise Donald??
RumeaId; f6 rmer D?p?uty Secretary of Defense P3111 Und?r- Seeretary
of Dafense? for Intelligence. (USDGEJ) James 61313136143; f0?1161?3?U .Steplien
?C-ambon?e; and Principal Deputy General Counsel DanielDell' ?0110eigtlfemely $5nsitivecounterfen?orisin
program'focus?cd 011 detecting and preventing Iten'oristtattaqks: within the United
?S.ta;tss.. The PSP was authorized by Ehe ?13-resident Wary?? 0' to 45 days and was
"initially d?irecftadagainst international terrorism; after March 
f?gicused speci?CaIIyagaihSt-aaned? and its aff?iates. TheDi?rGCtOr 'of?Central
Intelligance (DU), and later the DN1, Would preparea Threat Assa?ssment

 

   

3 Secretary Sam and Under Secretary 

Was lr?nsferred to 



a

 

Memorandum, which Validated-the (immutthteattortho United states. ?The? - 
iSecretaiyernere-nse: would: andzsign stiheithre?at AssesSment Memorandum;
Qn three the sfomer  10f af?ne e,
Qty-me:

Memoraada when. Secretary Runnf?ld?i audit); Wolfewitz were unavailable.

 
 

5 a  1 a  a  Memorandumwasz Signed;
the. President wou?ldithonSign Atl?ioriiZatiOn with A
t0
employJD'oD resources to execute the requirements-sat forth the 
Anthori'z'ation. he Attorney Genera-1, or his designewvvoul?d? certify the
Presidential Anthonz?ation for-foicnrandrlegality. The S-eeretaiy of Det?euse?woul?d
actions authorized by the Presidential Authorization to the; NSA- fOr
imPlBinontation. On one. occasion, Dr; the 
the. toiim?p'lement the Presidential
Authorization, in the ?S?ecretaiyi?sabsence; 2011asepaiatGiDGG?SiOm 1315-: 1111369113:
directed the Dir?o'tor efN-SAqtesimplemeut 'tliei'Preeid'ent'Eal
Authorization.

 

 
  

 . Dr."
'Wolfowitiz: als-oti-BXBontod?two declarations t. arr-s riot Intelligence
surveillance Court? The. ?rst, Executed? OT.

rene a 

         
  

 

   
   

  
 
 
 
   

 

138415-1846"? as amended. The initlal authonty-un'der to install and use poll.
Eriegiater and trap. and traoe devices for that purpose was? 'rantod'h the oreign
Intelligence Surveillance-Courton Julle 200 

      

  
 
  
  

deelmrationwas-executed 

    sponge to the Foreign Intellige 
"Saw .llanoe C0urt Order requiring the?GOvermn?ent'tO' snbmita
declaration from the Deputy Secretary of Defense discussingNSA? ?violations of
the Court?s July 14 Order authorizing SA to install an   
an btain information about
   In that declaration, Dr; Wolfownz stated the
circumstances surrounding unauthorized collection that oocun?ed,? the disposition
of information collected without authorization, Steps NBA took to remedy the
and-measures NSA maplemented?to prevent recmrenoe- of such
violations.

Dr. Wolfowitz?e

   
   
  
          

     

   

 

cw.?
li' Hm . 



 

 

 

 

I  .  - I rm  

REPQRT ALHST (U)
(U)
OF '13 EFENSE 
Secretary ofDefense 
U?deri Sacret?IY 0f ef?nSe. fur Intelligenw
.Deputy" General Counsel, Intelligence.

Inspector General, National Security Agency
FEDERAL-ORGANHZATIONS-
InSpectqr Gengra15D1rectm: OfNRtiO?EtlI?t?lligB?CB
Inspector General, Department of Justina.
I'Ii?spectOr Geneltal,? -'Cent"ral 'I?telligeucevAgBIlcy 
CONGRESSIONAL COMMITTEES
Sanate Judic?i?apy' Conunittee
Senate-Select?Comrr?tt?ee: on Intelligence
House Judiciary CQMittee
House Permanent Sela-Ct Committee on. Intelligence
5
SEQ PL. f. I Qmp@NrN@a?? 1?

 

 

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11(0)

 

 

 

 

 

 

 

 

 



Of?ce! of .l nSpeator General:

 

 

   cm..Pa?icipatian invithe
Pgresad?envs?u W?illafme? ngsazeam

Repmt Mmg20108~06316~?a$


Image Date.

 

M.

?[12



1'13 page ?1

ntentiOnally- le?'iblank

 

 

mm nu new: nnu Imr"
tar" l?xulisolcr Hump?lrnw 

 

(Ul Tame at Contents-

exEcunvesunan-?av  
 
(U) origin-and ScOpeOf the Review  
(U) The President?s Surveillance Program .i ..5
(m REVIEW Rescue  

 PartiCipa?tieniin the President?sSurveillance

 sci deli-lily Prepared theThreatAssessment
Memorandums SUpporting Authorization of the PreSidentInes-IlnIc-v'o_ I I I Ii 

(UHF-866) CIA Tasked and Received Reporting From-the

President's Surveillance Program .v ., .39

(HUME-6) ProcedUres and Standards for

Reporting Provided in Response to Requests for

Requesting}Information 

 tuna-schPrimary CIA Users of the President's Surveillance

 Inn-galnun-sued I I I 

(WW) CIA Requests for Information Were AdeQuately

- 
 Senior cm Ot?cials Believe That the-President?s

Surveillance Program Filled an Intelligence Gap ..

(WW6) The CIA Did Not Assess the Effectiveness of the

President's Surveillance Program ..

(U) Counterterrorism Successes Supported by the President's

Surveillance Program ..

W?Several Factors Hindered?ClA Utilization of'the
President?s Surveillance Program 

1'1

13

13

15

16.



 

Mr

r" Arm;
- I: .3: MC 3 
Tmam mangr: Gem-Alt! Iral 
at 7 -T U: LI) . 

(U) cm; Had Limited. Acce?Sstp L?gal?eviewsof the President's

  
 CIA: Delay Ei?p??sUreOf?the? I
President's:Surveillance York Tri?es :20
A

 Threat Ass?ssment ?Hem-grandma: Concluding Paragraph 

(U) Example of Link Diagram'iFromAugust 

   
 Aij "Gm 

 

3 

 

I . scimsleicmation in the?
Pregiden??s Surveillance Program"

EKECUTNESUMMARY

 . 3 Title-HI qfthe-Emiign Intelligence.Surveillance Act (FISAJ.A1i1.endn1ents-
 Icqh?gs the. Inspeg?tors? Galleyalf (K35): ofith'e- elements. Of theil?telligeiice
ComwityfICJEthat ?attiicipate?din the President?s Simvei?ll?ance'ProgramQSP) to
program. The .rc?sults of our r'evi?ew. 
participatidnti? the 333 presented in this report, andwi? be included ill-the,
1'0  provided 0535011817653
by ?1-0 July 2009.; 

i - assesSmentmemm-ldm-S
that:  used. to 
?Tha?thr??at assessmenfmemomndumf . 



     
   
   

  

. I. . .. .  :5 (mi .0619 Wid'erail
assessment Of the utility- ill-addressing .prev'ious'ly rammed threats?. The threat
gagessmant-jmbr?orandums thB' Director of-iCentral Intelligence.
and forwagded to ?it: Secretary of Defensa to bdcd?i?g?ned.? Responsibility for .dra?'ing

the: threat randums Was transfantedit? the newly-established ?Termris?t
Threat In'teggation-JCautGE' in May 2003. and retaine'd?by. organization,
 (me a?bn?al The; DCI'L?on'ti?ued vto - sign the. threat
assessment memorandum athrou'gh' ;1  S'iibs'eque?nt memorandums were
signed: by the Directo r- OfNation?l I?te?lligence;

 1:7? CIA consumers-,Staskad



 
 

 

 I. 4 I "m 
Tamra: erg-131 ,3 we, {mt-d @iwmiviy teem: Maize/era

 

other ?We 

em: 01 en

 
 
  

 

 
 

HOWever, collection of
ens: under EISA, and there was widespread
?b?eltefarnongi senior 1C of?cials: that: the process for obtaining FISA
a?diorira'ationwas toscumbersome and time consuming to address the current threat
?Curirenttand former?CLA of?dia?ls: emphasized the-increased timeliness, ?exibility, and
asscompared to the process for obtaining a. warrant under
VFISA.

-r t-  . - y, The CIA did not implement procedures to assess the

usefulness of the. product of]? the P-SP anddi?d not routinely document whether particular
PSPrepe?rtin-g lia?dicontribnted to successful count?erten'orisrn operations. CIA of?cials
I a  i??ecnn' f?Tnm nil-19:17

 



from-t was use



"Irictienw?b 1

       

            

 

   

P8P reporting- Consequently, thereis 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 successful operations, and therefore, we were
unable to independently draw any conclusion on the eyerall of the program
to CIA.

 

 

t] 

 

 

I   - Save-r131 factors. >11inderac1..gt?1rie GEAip'mal?iilg full use" of- the capabilities of 
 CIA of ?toldUSniihat tpdfe?r?CIAjp?aer?nel girdle.waking-lava;
werere'ad df??ialSitbl?m that: ??halysitsrand'tm?g??ngbf?c?rs
whoxwerema?l i?hacltOo many- competingipriorities midiod?m??b? D?ief?milable

ib?na?bn seminars. ?and tdolswm?ny" of We?re more easily-amass edmid .
31313313}  .?offimrsalscr 't?dldius  the-PS}? Woulti?have?
u?lizetl if officers'had csb'tained abetter?
undemmdi?gbf mat?there was
  legaliguidanca - concen?rig  -?fogra?i9is capabilities and The
usa-iof?ESBdefived h?a?na?dn. The ?faptorsf?i'at?fhind?ratl?ier (3113x311 making  

of  PEP niigh?t'llave been mitigated-if?leEm designatedmindividual at 
level of managerial au?lority, j;th of both ?ieiPSP:
and  comma?terrorism acfivi?titas,j to be rag poms i513 - ahdz?ic?icomt?ble? for :overseeing;

 participation in the programs

 

. There'is?nofihdication tha_tperson_11?el

 of G?en?ral Counsel or other 
 memoraudms- supporting The mat were. ?xei?e?ar?nent 'of
I Qf??e of?Legal COUHSBI   QGCI parsdrihel vet}? Zlimited?access
ito-?iesememomndums.

 

I a  Senior officials pax?j?ipamd aNewYar-?IC Times
editor?and reporter and is enior?Adr?i?istta?bnbf?di?ls acmemihg an'article the.
nei?rsmper?was?preparmg ESP.

 

 

 

?1183

.v .

65

9


J.

Th?i's  alg?? intentionally left Blank.

TH
(33'

 

(Ll) 
origin and Shape-of the Review

.  Title efthe Foreign IntellifgeHCerSurveillance Act amendments Act of
2008?, Which Was signed; intelaw on 1.0 the IGscof the. Blel?GIltS'Of
the? Intelligence. Community ?thatglpartioipate?d .in' the: to? conduct comprehensiVe
'reVieW'Of the program? Thereviiew required to be conducted underth'e Act is to'
examine:

(A) all, offthe- then; necessary to describe theeStablishnient,
implementation, product, and useof the product of the Pro grain;

(B) aCCess to legal reviews-of the program and access to information
about the Program;

 cornmtu?cationsi with, and participation of, individuals; and,
entities- -in 'thlerpriVate- sector" related to the Fragrant; 

interaction with the Foreign Intelligence" Surveillance court-and:
transition forerunner-deg related to the Program; and.

anyothermattersiidienti?ed by?any such Inspector 
?Would?enable. that Inspector General tolcom?plete a review of the.
Program, with respect to such Department 0r element.

. . I The interim report requiiredrundcr. the-Act was submitted
tattle corrunittees of 'Cjongress prescribed in the on 1?08eptemberi2008. That
thesCopeof the Work to be conducted by eacho-f theparticipatingle,
which include:theilnspectors- General :of the Department; of Justice, theOf?cerofthe
DireCtor-ofNat-ienal. Intelligence, Security Agency, the Departmentof
Defense, and the. CIA. Our review of CIA participation in the PSP examined 

0 Role in preparing the. threat assessments and legal certi?cations
supporting?periodic reauthorization of the PSP.

0 Role in identifying targets for the PSP.

 

.W) Thel?resident?s Surveillance Program is de?ned in the Act?as the intelligence activity involving
communicationsthat was authoriz'ed by the Pre?identduring the period beginningon ll September-?2001, and.
ending on 1-7 January 2007, including the program referred to by the President'in a radio address on
1'71Decemher2005 (commonty known. as:.the The classi?ed name for the
President's Sumeillance Program is 

 

4

t" l\ who-m  
m' of llk/x.) 

r: r: my. Pumas .?lhli?n -nlt\ . nL?n - rm lug)
ll I?wr 



 

   

    

in the?cm?prehe?sive aha; {egort xeq?ireditdhe jammed:
to- i?ie appreprfiateincommittees of Congress by 10 

(U) The President?s Surveillance-Program.

-- _7 . . According to former- Director ef?the 'NSA'and 'fenner
DirectorOf?theCIA Hayden, initial discussions:concerning the
actiVities-that would hecOme the PSP Qecutr'cd'less than "two weeks after
1 sep?temberEOGl tertorist?attacks in a meetinglbetween-DCi G?eor'ge'Jl Tenet?and
VICE-President Richard B. Cheney; Although Haydendid?ot attendtheIneet'itlg1 he
was told by?T-enet that: Cheney asked if the. Intelligence Community was doing

eWMh'iFigf Possiblats clamspanse  deemed;

   

 . Cheney then asked if?lere was ?inore that-ENS}; "ceu1dit do.
Thisled to 'diis'cus'si'oH's-between Cheney, I?I?ayden1 Cheneya: legal-'connsel 

Davids; Addiligton, and senior NSA of?cials; It was determinedithat. the-:NSA .had~<the-
capability recollect additiOnal Wire communications-that could enhance 
QD-Uilte?eff??smeffo?sz but. that'new authority was neededto employs. 
Thei'dcterminati011. led-to the-authorizationaof the PSP PreSidentheOIge  Bush-en
436ctoher 200:1.

 . The PSP was hite?nded?to help-pi?eVBnt additional-
?terrorist attacks against the US-Home?land. Although the authorized co.11eetio:n
actiVities changed over the life of the program, in general, the-progIam authoriZZed the
acquire: content and/or metad?ata concerning telephone-and e?mail'
communications-for which there Were reasonable groundst'o believe thatat least one of
the participants in the communication was located outs?iderthe US and that a party to

 

 

 

  

. - a v;  1 
t* v'v? vie I 

Th?s-Cbi??mnicati?n was. af?li?f?d'vvi?th'a gmupengaggd 'inliutgmat?iona?l? teIrOrism. The,

le'lecti'on actiVities- conducted under. the PSP were bfqught-und?er breig?Int'ell'ige?Ce
sumcillarica-Couft 'oversightsin stagesbemem July 2004 and January 

 

A - - .L  
included the content :of individually targeted and email
comm??icatio?s. 
 and duration'of-callsg the-tale}: number-chm caller: -andrt11enum

136.1" 
receiving the?. .callj?nec01-lected; in bulk Theltliird.-data

   
    
  

 

      

REVIEW RESULTS

 ?ElAiPa'rticipa?hniin?th?i 
 

um'eillangeiapmgram.

 

 

 

 

3  Tho: Bareig?n Intelligence Surveillance .establiS?EEd??hefFOreign Survci?ila?chourt
tofo?versce req?Uests 'i?orlsum?iilance warrants by federal ag'e?cie's agtiinst-susp?cted foreignint?lligange :1ng
inside, the us. 

 

2'11

22

 

  

.  CIA.Preparad1

SUIJP'Qrtinlg ?uthorizat?'on ofethe
President's surveillance Program

 

 

-- ..

Z. - a a )1 The CIA threa'tassessmenr
memorandums that were. used to Support Presidential liauthoriiZatiOn-and periodic

=reautharizatigaas-Qaf thatPS-P, Theanemomndui?S-?dd??m?s?t?d the. threatsto 

 and: to US interests 21er adffromal-Pajl'idarand' a'f?litlt?diterrdri?St
.eitga-nizations. "The. assessment 
Thiem??em 'Usama Bin Ladin?wa?s- signed by DC?I?ZTenet-e?ll?Oetdb @2001;
subsequentithteat assessment memorandums 30? to ?60' days. to.
correspond 

         
   

  a g,   The tvaSS-ath?CIA
feealpomt for preparing the threat aSsessment memorandt t. Accordingth
Mosemam headiteetedxth top-prepareobj ectiVe

appraisals of-?the-enrrentt 'tihr? tsrte thezhomeland;
.;atid7?to document these appraisals in a Initially, t'
prepared: the, threat assessments -



I read into the tianddidt?iiot'knowhow the
threat aSsessn?ie'nts Would be used.  drew upon all sources ofiintelli-genCe
in preparing their threat assessments. Each of the memorandums focused on the
current threat situation and did not provide an assessment of the utility in
addressing previously reported threats.

    

 

 

 he-tille-e?f? the threat assessment memorandums was changed to The: in


 

 

 
 

1 .. .   A?e completed its portion of the memorandunis,
the. a Chief added a paragraph at the-end of the memorandums stating that
the adrenals-and organization's involved'in global terrorism. (and diseussed. in the:
posse'SSed the capability and intention to undertake further terrorist
attacks-Within the-US. Moseman recalled that the paragraph was provided to 
initially byeither White?i?Icuse Counsel Alberto R. Gonzales or Addington. The
 recommended that the .Pres'identauthorize:the Secretary nfDef'ense-to
employiiarithin the the capabilities of the apartment of Defense, "including- but not
limited signals intelligence capabilities, to collectfore?ign intelligence by
surveillance, The paragraph also described the types of. Communication and.
would lee-collected and the circumstances under which they could be
collectedrt The draft threat assessmc crandums werethen reviewed by Office of
General Counsel attorneys assigned I  ?d Acting General Counsel (Senior
DeputyGeneral Counsel) John A. Rizeo. 'R?izzo told us that the draft merrierandums
were generally suf?cient, but ?that there were occasions when, based on his-experiencie
with previous inenio'randums, he thought that draftmenio?r'andums Contained
insuf?cient threat information or did not present a corn case for reauthorization
eftht: 111514011 instances, Maize Would request the  rovide additional

a

available threat 'infonnationcr make revisions to the draft .memcrandums-..

 

 
  

    

. .  The threat assessment, memorandums werethen, signed
by, DCI TEnet and forwarded to the Secretary of Defense to be coasigned. Tenet signed
fm?o?st o?i?thethreat-memorandums. prepared during histenure On the few-
otzca?sious when he was, unavailable, the Deputy Director of Central Intelligence.

 Join]. signed the memorandu'rns cube-half of'Tenet.
the memorandums in. the Capacity ofActin?gDCI in August
and?Sjeptember 2004. In November 2004, Porter I. (3053 became DCI and assumed.
responsibility for signing the memorandums. There-wereno occasions When the D61
orActing DCI w-ithhe?ldhis signature from-the threat assessmentmemorandum. 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
reauthorination. memorandums signed by the President.

 

lity for drafting the threat assessment
0 the newly established Terrorist Threat

. - Resp
memorandums Was transferred from

    



IntegratiOn Center in May 2003. This reaponsibility was retained by TTIC's successor
organization, NCTC. The DCI continued to sign the threat assessment memorandums

 

Exhibith presents the-conclusion and recemmendation-paragraph included in the threat assessment
memorandum?dated 10 January 2005-, Similar language was included in-each of the memorandums.

 

 

 

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28:

 

 

 

 "Senior CWT'Offipialsf Believe
Program
Filled an Intelligence/Gap

. i  . Former Directors?Hayden and G033, former Acting
.D?ireCtor'McLanghlin, and other senior CIA of?cials we interviewed told. us that the
PSP?addr?SS?ed  intelligence ColleCtion. Following the terrorist attacks on

   

..

V:

   

 

 

 

 

officials that?the .prooe?ss for obtaining PISA authorization was too cumbersome and
time consuming to- address the current threat.

 

 

   



 

 

 

 



4,
I (w 

 

. 
 

 





 

 

 

 

 

36)

 

 

NotAssess
Of?fhe
PreSidentfs surveillance Program

       
     

 .,  .-  1: The CIA did 
 effuljness; ?fths pre?tIUCt 'Qf?fhe anddi nOt? p?l?c?lar
 rap'ci?rtihg? 11ad780?t1'ibu'?ed :Qon?terte?brismb??e??naz; 
  tofldusihat-PSP raport?ihgwas-used 
reppt?ngg?mn o?thgr consequently;litQiELdif??u? to attributqthe:
s?g?cess fparhibular Ina May

"d the: Senate [31165.6qu
 Said?l?t reporting-waszrraxel-y' theicscle basis;er an i?t??lligmc?
successu?u played? axsuppartirigiriole.? Hal'wenton to stats that-the
_.pnog1f_a1n Wasvan? additional resource to enhance?m Lterrqrist
identifypotentialthreatsxto "Giztlaer  

- we-fi?tEleiBWed-?Said that the PSP- was me 'o'f'many tbolsravailabie- to them, ma; thatwthe
aohlsiwar emised'incombination. 

3:353:

     

 
 

 

   

 

 

 
   

 

 

 


Program

i 'D?espite?lefact that CIA: 
 infomaticn on s-quessas; Somalis)? 
countartemri?Sm operations Supported.- by theaPSP-?were-citcd. inbtic?n-?gs presentediby
 miMarch'ZQQ4, .the CIApr'QVide-da 
of?cia?lssand ?angress?ibnafl?leaders. Thesabrita?ngfs
11' 
5116;196:3365; Iana? "006,,rthe Deputy Director  on
that uS?f?lf?BS'S?iG rifthe?iPS?P, 

 
 
 

 

 

3'1]

 

 Several Factors Hindered CIA
Utilization of the President?s Surveillance Program

 SeVeral factors hindered the CIA inmaking fuIl use ofth capabilities of
Many CIA. of?cials told us that too few CIA personnel at the working level
ware read into the PSP, At the program's inception, a disproportionate unmber of the

 

 

32 i?

 

5?13 @i ..

   

 
    

 1. I f?pials also told ins that Wo?r?liingaleve'l CIA and targeting
Dieters-Who ereanalytic toolsavailahle to them, to fully ut?ize?PSP;

    
    

      
 
 
    

 

 

 
 

told'usthat much of the PSP reportin'g'wasvague or
Withoht'ifeonlte'_ and targeting officers to rely more-heavily on other
an?alyticrtool'si which were more: easily. accessedan'd timely
.th?anthe?PSP

  of?eer?s also told us. that the PSP would have been more fully
utilized if- anaiys-ts. and targeting of?cershad ohtaineda ett'e'r understanding of the
program?scapabilities; There was, no funnel trainingon the use of the PSP beyond the
initialreadiin t'oz?thepmgtatn; officers: we interviewed said that the-
,ihst n'niiovridediin the: readein briefing- was not sufficient and that they were

          
 
   

- mm- 

 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 authmity, who possessed knowledge of both the PSP and CIA
..  .. .I  IV - I

 
  

 

 

?13
rm rarer-T. "re I Mr 1 I, 
unpinVIwi.u@ix  

334l-

 

Tm?i? ?r?m are I I . - f?frzxa. I'l

. .   7.. 

 

  Had Limited AccesS-
to, Legal Reviews- of the I
Freei?dentiso-?Surveillance Program

3  .  There 
?Qf?c?E-?Qf?eneral C'oun'Selt Or othe'r?CIA a.
legal memorandums supporting the-P3P D'ep?artme?t' 
.Ttts'ti?e?, @?f?ee ,of?Legalgoounsel.?COLCQ. At;.1113- -

Counsel; There

that McNamara? was ever re retired from "the  on?-
Aeting General JRizzo-awaszread-sinte programme
2001; but, satathattime, he toe-the legal-J
O?inions;  told  that by working"throughAddihgfo'n; was

- aequain'tedflie leventue?y Was alIOWed to lead the (DEC-legal .memorandums- lat

Ad?i?gjton's ef?ce in July 2004.

  ..     .. Scot-t  Mullerlbecams thaws-General. 
 Although records- do Muller was .rea'd?into
ESE, during Our rintervtew with Miller, he acknowledgedhailingbeen read into the
program and?fhaving- read the OLE legal? After
.J'aekLsGoldsmitlii became the Assistant Attorney Generalifor' 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
aroundiM'areh 2004 has forcartai n. - 9g,

   
   
 
  

 
      

 

avers-mug seats: 

manag WE'Entet eWed said eraseoneemed that the PSP Operate

-Withinf1egal. authorities, they believed-that it. was important. to continue- CIA

 

 

 

 progTam?beeause 
pregre'mi Was a {sauntetterro?rism to 01?.

 Q?iCEalevSought to.
Of the; President's
?Surveillance: Program by the New York?Times

_j   In?Qc?tober 20.04, James Risen, for. Times,-
contacted-the- CIA Of?ce of Public Affairs seeking an interview'wi?i'DCI Goes
eonee'm'higan article the newsPeper. was pl?anningon?the'PSP. Senior of?cials "from
the CIA, Of?ce. of the Vice President, and?the Of?ce of'the Secretary of?Defe?nse?
?ier arresponse. On 20 October 2004],. DDCI~MCLeughlinsanC?1101 Chief of
Staff Moseman met with the. Washington, editor of The. ew York: Times, Philip
Taubmah, andeiisen. AeCor?ding to by 7
oMosemam-gMeLaughlin did not provide any detailsoregerdingthe.P?SP 'or 'eomm'ent on;
theiegal?basis be?: he streSSed-thatpubHGatibn-Of?the articlewould
expose, and potentially- eomptomise, oeffectivegeounterterrorisrn. tools-g

    
   

Risen-agreed to article and publish it only?when-?it became: apparent'that other
iIeWs' organizations were preparing their OWIL Stories on the" PSP. Oil. 16 Deciember
2005;. The New York Times published its firstartieleou'thePSP: "Bush-Lets U.S. Spy
011 Callers Withom On 17 Dece111b?er'200'5, PresidentB'uSh publicly
continued 1'11 3 radio address the existence of portion of the-P5P.

 

 

35

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H4
nu
Ii:




4:93

36

 

   

 

Exhibit A

(U) Walkaway

During-out interviews former
 persona Who had bege? surveillance Program
I119- aenior Cl?Aef?c'ialstc i'?terv?i?ewedl were former Director (if ?le
 --at1d ?gforme'r. Dire?tof O?fjthe  

Mich?alV.? Hayden, former Dimmer of antra'l Intelligence  
PjortEr LT. (3053, and Id?n  McLaughlin. We conta?ted former" 
Game-?I; Tehat'anlvinter?iiaw' 
Chiefof?st'aff, Io c.  93611121.; 
interview  Followingeour?intenkiews cbhtactgd T?uatbsiof?be

?i?ql? ?st Inter??  lithe 91117- 1110116393115-

  

 
     

 

377

38.

paratimidft?h? ?n report

 

M7 (in;



bhn??; Ma?senian; @tha-Di?rect

 Wm?

g;
?01 I 1 
i

ire. rm a.  as; rm. m.s lwl?lt. a!  in  
I he: an-? ?t a  3'11!!sz im?E?E'rhli?t s?  ?w 

Exhibit, Ill-3t-

(U) This? Assessment Concluding? Paragraph

[Excerpt from acetone; Wnr'jlgnimt dated 10 IanuaiijOOSJ

  

.. 5 I. . 7. . 'Based'cn. theiinfoanaticn avai'lahlertc me from allzseurces,
including?thexinfonnation, in this document, itis?my estitnatethatthose inve'IVetI in global
.?te?ptis?rn possess hath the apahil?ityand the intenticn tonnd'enake further ten'oriStsrattacks.
"Within.?the?United?States, that; if?not detected andpreventedtwill-cause mass
injuries, and destruction of lat-aperity, and may placeatrijs'k the contint?xi?ty'of the United
Accordingly, I..reeom'mend- that, ?in-xaecoiidance. with the Constitution, you
.authoriz'eithe Secretary ofiDefensertbr the'putpese of'detecti'on and?preventionaftermi'ist acts
within the United States, to emplov within the United States "the-capabilities of the Department of
?Defense, including but njotlirnlitedlto the signals intel-lig?enCeCapabilities of the Natliona-IfiSeeu?ty
.Agency,.- to collect foreign-intelligenceby electronic.surveillance, if such electronic surveillance
is intended to: - 

I acquit-ealeoinianaieatimr a?wire commanicaticn
carried-into meat of tlie-Unitcd-States?hy cahle} for which, has'edc?n the factualand
practical considerations of'eVeryd?ay life: on petitions "act,
there-are reasonable..g1fcundstorhelieve such Communicaticn originated or tenninated
out?id?e the United-States randiapar'ty- to such en'mmuniCatlon? is a group engaged in
international'terrorisnt, or activities in preparation therefor, or any agent of such a group,-
previded?that sunligtoup-isal-Qaiida, is?a group affiliated With alQa'ida; or isanother 
group thatsycu determine for this-purpose is inarmed conflict-with the United States-and.
poses a threat of hostile action within the United States;

vanirei with.respect to a telephonycommunication, dialings
typetlata, but-not the contentszof-the communication,when(i) at least ene party to such
communication is?ontside theUnited States, to such communication is to
bee citizen-of the United States, or on the 
everyday life on act, there are speci?c and articulable
facts giving reason to believe that Such communication relates to international terrorism, or
activities in preparatictn therefor; or

collect, with respect to a non-telephony communication, header] router/ addressing?
type infermation, but not the contents of the communication, when, based on the factual and
"practical considerations of everyday life on which reasonable and prudent persons act, there
are speci?c and alticulahlefacts giving reason to believe-theta party to such communication is.
a group engaged in international terrorism, or activities in preparation therefor, or any agent of
such a group, provided that such-group is al Qa?ida?, is a group af?liated with al is
another groin-13? that-yen determine-for this purprJ?Se is manned con?ict with the United States
and posesa threat of hostile action within the United States.

.  .- w-xm-ga

i we?i?iitxyw :?i'er'ti;

4' f?C'?m .9. LI :raxrmr?ralsniamnr
E) \y I Lg val, g) 1 





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EL.
63

4?

   

 


-- .

     

Exhib?i?:?

Example- af?a Link Diagram From August [29302

 

ir?maw
:u by

This page intentionally left blank.

 




 

0?


Chief"

 

 

 

- This,licpogtwaseprggared  .therOpera't'i?onS Di

0

Vlsinn,

waitstaff;

 

?Rev?iewv?fream

Exhibit  

 

4%
{5

 

T-hi-S'page intentrienally? l'eft Hank,

 

 

 

   

MAL SECURETY

 

 SERVICE

 

GENE REPOT

(U) Review of the President?s Sun've?lance Program

SEEM-imam
29 June 2909

 

 

?or estates: or? rare teen; lanai

(U) Director, NSA/Chieiicss, the-Office ofthe? Inspector General'colG)
BO?d??CtSinspeetions, audits, .and'investigations. Its mission. is-to ensure the..iirrtegrityg efficiency,
and Effectiveness of .to proteCt. againsr
and mismanagement of resourcesgiand to enstnethatrNSAJ SSi-actitiities: are
penducted?. in compliance with the executive orders,r1e gulations, and
:directiv351. also serves as- ombudsman, assisting-all NSAJCS employees and?. af?liates:
civilian and military.

_~r.er unseaeraens

The inspection?inetion conducts-.nianagernent and pro grain" 'evalnation'sin the of
reviews; undertaken eitheras- par:th   annual plan orby
management request. The inspection team?st?nding?s are designed to yield accurate and upstoa
efficiency of?entities-and with an

assessment or compliance with laws. and regulations the re?corrnnendations for-colrrect-iens or
.i?rnprev'ement's?are subject toz'follemm. The. inspection of?Cera'lsopartners with the Insp ecters
General of the Service Elements to conduct joint inspections ofzthesconsolidated.
facilities.

in) anore-

 The internal audit ?JnetiOn is designed to provide an independent assessmentof programs-
and Organizations. ?Pei?formance audits eValuate't?he economy andefficiencyaof'an entity or
program, as Well as whether program obj ectives are being rnetranduoperations are'in comp'lianCe 
with regulations. Financial andits determine the accuracy of an entity?s ?nancial statements. All
audits. standards established the Comptroller General of the-
United States.

(or. unveernearens ann seaerar maintains

(U) THE .OIG administers a system for receiving and. acting upon requests forassiStance 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.

 

 



SWWPE \mi an? .m .. .


 

m? INSPECTUR 

(311: 13 mm SERVICE

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J'i?q?y?i 


by,?

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 June EDQQ
1cm mama?DE}

m: 

SL1 Efde?T: of E??gaidam?g ESLMrEiHamer l??mgv?m -
ermmiwmit-?Isow MEMORANDLW

1- "IT-?tilts axuljuzu?ms: (1111? rim-?ew m?the. Pra?iderrt?a
Suw- ini'lliamctz- il?mgmm, as unattended by me: Ftnreigrt 
Fifi m: 1:111:11 mil Act. l? [155155 
7 I  Fur iHRH-{rmfirm. pimgg my 47313360021
am 6383-6656. "LVil?f?mji'G Clam the amt? on 
the [?Eview.

 .7
In," 4' r? 
   

GEDRGE ELLMEEJ
[named 

 



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DISTRIBUTION:

51:3

060

 

@{33

 

 

"(ammo

an); Keeowweeoonom

 

 

 

.?For attacks
on "11? septa-mes: 200-1, 'N'SAusediits SIGINT authorities 'to
provide {information in response to Intelligence Community
?reqi?rements' on terrorism?t'argetsa. Inlate-Septem?oer 2001',
when theViceP-residentasked the Director-of Central
Intelligence What more SA coul'ddo With additional
authority, Director identi?ed I
enhjeilCi?'gSIGIN .EColleetion?Under existm?g?lnuthorities?. He
said that in most eonl?d =not?;co?11eotr
comimux?mtions on a Wire   United ?Statesywehout  
-eourt01_:der. A?s arresulti ability to quickly collectsand
rep'ottuon  large-volume- of?comunicatibhs :from'foreign
countries to the United States Was. initpeded bythe time??
son'snming courtorc'i'er a travel-"mess, Attemptingj't?o
obtaincourt orders'fq oreig'n telephone
numberszand' Internet "addresseewas mpractical for
collecting terrorist communications with spee? and agility,

 

7? 1 l-C'ounsel to; the Vice President
drafted the 4"10etobier 201 Authorization ih'at established
the Iii-resident's. :Squveill'ance Program which NSA
Co'uid 'rontinejly :Co?eCt-on a Wire, for counterterrorism
purpres, foreign Communications ofiginating or?temnnati'ng
in :fheUfr?-ted States, Under NSA did not target
communications with bothends in the United 
although-some of?5the?5e e'ominuniCatio?ns were?incidentally
collected.

 The PSP gavech'A a capability to

    

   
  

wastha - his coverage provided confidence that
someone was looking at the seam between-foreign and
domestic intelligence domains. todetieet- and preventattacks
in tIie 'United'States.

4E9)

 
a-v-pw: .

 

       

 

i155! :Kmmedgett-atthe- Program 
strictly .Iil?itjed 2,511; the express direction- of the White House,
and Director needed White House-approval "to-inform
members-pt Congress aboutProgzamactivity. .Behveen

:1 and. 1.7 Michael V.
,uten?tn?tGeneI-el Keith B. Al'.exander
men?1133.3 of. ?Cong're'sS and

  
 
  
    

  it  .  
Was: authorized ?by-Foreign Intelligence iSu-?r??lance
Courtt??EiG) rerder?s? by 1'7 culinary 32007 when NSA stopped. .
operatingru?dar PsPauemity, ThieNSAOf?Ce-ofthe. 
Inspector: General demoteo, no intantioneljmisuse of
Program authority;


(HIPSPestabliShment, Implementation, and-product

1 

  

.  NSA?tj'e'gan ?op?erationSxon
omega; 2001. Although. the. Dirac:th was
?icomfoi'ft?able? eXerciSing the new authority and 135-15;er that
itywas lawful, he realized that it be contIQYersi'al.
Under the? .PSP, SA 183qu over reports. This included
 sports based on colle?cte, Mata, Which was

in the Authorization as ?header/router/addressing?

 

    
  

  
    
      
    

   

med
type information including telecommUnications dialing?type
data, but the contents of the communication.? It also
include   epor-ts based on domestic content collection,
which includes words spoken in a telephoneconversation o:
sentin ans?mail 

.. . ,l I F) peoducts, all of which.
Were sent to CIA and FBI, Were intended for intelligence
purposesfto-developinves-ti' 
Used for judiCi?al 13111130568. 

 

  
   

   

   

      
      
  
 

 



Gig
"in:


 

 

 
 

mechanismto-?t?rlaek ?asseSS the effectiveness of PSP

0 (Ui-Access to legal reviews and programinformation

   

General Counsel and Inspector GeneraLWere
not pe?rrnitted'to read the 2001 Of?ce of?Legal Counsel
epieiongon the PSP, butthey'We-re givenaccess to draft 2004
Of?ce efgLegal. Counsel opinions. KnoWledge of the PSP Was,
 controlled by thesVVliit'egHo eg. Between 4- October

20.01 :and?- ?17?January'200 people Were cleared for
aeei?ess 

  
   

to (11) gNSA-FISCinteraction: and-transgitionvto court orders

   

  7  . interaction with
the F180 Was 1 primarily brie?ngs to presiding judges, .
?beginningiin January 2002. hi-teraction increased when NBA
began to transition P8P activities 'to orders.
Alter parts ofi'the program had been publicly revealed 
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?20'0'6, and 10 January 2007', respectiVeiy.

a Program oversight at NSA

Office of General Counsel and Signals.
Intelligence Directorate provided oversight of NSA PSP
actiirities from October 2001 to January 2007. NSA OIG
Oversight began after the IG was cleared for PSP information
in Ailgust 2002.

 

a 51?]

 

 


c;


15':
?9
EH
CD

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(N
M73

 

This page ?lten?tiona?y left blank.

d3-
?23
a;
RF





NA:

 

 

 

 

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 the: 1 1 September-2061 terroriSt-aitaaks in the
NSA had been: ueingTitsea?ul?horitiesltq focus; the United
States; Signals; intelligen Ge: system . onrforeig? intelligence:
targets, inefudirigiem?a?Sm; in response {overall/{genera Community

reqaireme?n?ts. A?er? the attacks; adjustedjelelNTcollectiomn

aeoordance with its-authorities,- to counter the terrorist threat within the
Unitedzerates; Intramuseptemher, the wee President-asked thegoiecfor of
Central Intelligence (06.0 if NSA could-do moregto prevent another attack.
NSA?s-z?Di?recror reSpOhded' deseribing impedimentsro SIGINT deflection.
of terrorietirelateo' comm unica'tione to. the Vibe: President Sconce! to the-
the information abou?t?iimpedfrhente- to draft the
Presideni?ialzA?UthG?ZaHQn that establi?Shedihe PSP.

against Eerrer?isrehafore September ?ail

 

WEN over a-?decade beforeite?rro?etsattackedythe
United'statesiin= September 200 
assets against terrorist targets 'in' rasponse to Intelligence

- community requirements! The; ?Signaleiintellrigence 
Directorate (SID) ?Cduntjert?err?orism Predtict Line led.
these efforts: in. authoritiea which
defmed What could and couldi?not. do against 
targets.

elem activity in September 2001

(U) NSA was authoriZed by Executive Order (13.0.) 12-333,
United. States-Intelligence Activities,.4 December 1981, as
amended, 'to' collect, p?rioca?sa, and diSSeminate SIGINT
information for thireign intelligencc and coun'terintelligence
purposes in accordance with guidance and to support
the conduct of military operations under the guidance of the
Secretary of Defense. NBA and other Intelligence Community
agencies were required by ED. 12333 to conduct intelligence
activities in accordance with US. law and other 13.0. 12333
provisions.

(U) Both regulation and Central Security Service
(CSS) policy implemented authorities under E10.
12333 and Speci?ed procedures governing activities that
affect U. S. persOnS- Regulation 52405149., December

 

57'



 

 

. win?  t" 3w?iiT-? 1i? 
stimysoam

:12 PreceduI-?ES 260 Heming- the Aeti'uities .o 'DoD'Intel'Zigence'
Components that Affect United StateslPel?rsons and NSA/?oss
Marci?172004! Procedures GavemithSA/GSS
Activities th?atAffect-U. 3. Persons)._ 

    - The policy oi the ?Uqu iSftO
coltect,?  and; disseminate only foreign.Communications,
Which,- 3in sept?ember 200-1., were 
complianceprOCeduresldese?bed bel?wl de?cammunieation?s
having at least one Communicant outside- the United 'States
or'cntitely among-foreign powers "or between a: foreign power
.and'sof?cers or. employees 0521- fOr-eign power.? All other
communication-s were considered 'd'ornesticcommunioations..
NSAcou'ld notcolle?ot. communiCation-s from a Wire in the 
United States: Without a Court order unless- they-ori ginated
and: terminated outside the. United States.

 

   
 
   

112001): NSNS authority?to collect: foreign

communicatioiis included the Director 

aPErOVentatgetiog communications with?0ne?eo'  
"'Un?ite?d?S'ta?ces "technical devicestjsuchas

i co'u?l?d be employed to limit acquisition 0 .
3communioation$5to those. in. a high the: target is a: non~U .81..
4 United States 

   
  
  

     
    
   
 

  

    

 NSA Director cou1?c?l; exercise-this-authority,
exciapt Wheri?th? redirection was otherwise regulated, for
example", under .corn'm?niCations from a
wire in the United States.

 safeguardsto protect U.S. persons' Constitutions!
rights 

(U) The Fourth An?iendment to the US. Constitution proteCts
an US. 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.
Governmentl United States Signals Intelligence Directive
SP0018, Legal Compliance and Minimization

 

 8130018 de?nes-a person as arcitizen of the-United States,? an alien lav?tfully admitted for
theUniited States, unincorporated groups or associations as substantial numberofzthe.
member?s?o?whieh constitute either grciups, or corporations incorporated in the United States,
i?dludi?nQ?UB. flag ?ctn?govlsr'nmentai butnot entities openly acknowledged
by a bedi'rectc'dnnd controlled by them.

 



 

 

Procedures prescribes policies and

a

mi?i??fZ?io?ht procedures and assigns responsibilities-to

enemiefth?tt United States System missions and

activities are .COndticted in a manner that safeguards 

rights; (see Appendix .G.)

   

.Duringthe Course of normal operatiOnstISA;

hereonneI-isornetimes inadvertently encounter intermation' to,

:i?ro?m; offsiho?t When. that. happens,  must-
apply: standard ininimiZation precedure?s approved by? the

Attorneyeeneralm accordance With EC. 132 333. rand-de?ned

SIP-0018. These procedures implement the
constitutional? principle of reasonableness by giving different
categories-of individuals and entities different levels of
praise-tron. They ensure that US. person informationfis
 during cellection, processing, dissemination, and
retentionsof for example, 'st?iotlyoontr-olling
.oogll?eetionwit?tia high. risk of encountering U..S. person
and foeusing 311- reporting solely on the activities
{of foreign entities and persons and their agents.

Mes tree-rm uses- {Existing Authorities to {enhance stem
ieo?nectiow after-Termstettacks 

 

 

 

 

  1 ss

@a

 

 

mas-mm

 

 

*r?ir   1.  . a. . ?rxm em a. . 
- Hl?ill i - rs -

STa?gatl?DZ.

 

 

 

.gfL?n meeting, @611 Exxp?ained Nani [Director?s
under [Existing SHGENT Authorities

 

 General Hayden recalled that in late September
?2001?,- he told?Mr. Tenet about NBA actions under 130. 12333
to counter the terrorist threat. Mr. Tenet shared that
informationi?ith the White House inian Oval Of?ce meeting.

 We did.th interview Mr. Tenet or White House



personnel during-this review. We asked the White House to
provid??dcur?nentation of meetings at whieh General Hayden
or?NSAsernployees discussed the PSP or the Terrorist
Surveillance Program with the President, Vice President, or
White House personnel, but we did not receive a response
before this report was published. Therefore, information
about the sequence of eVents leading up to the establishment
of the PSP comes from interviews of NSA personnel.

(utilise; President?sissd What: (Either Authorities ass Needed!

 

  

6?1]

 a S?l?w" i (in) r' ?13' CID 


 

   

 Improve; SIGWT collection Could Not Fm
Intelligence Gapsaon? Tenderness

 

W?General Hayden said that, in his professional
judgment, NSA could not get the needed collection using the
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. sur'Veillance immediately. "Rather, the Attorney
General had to ensure that emergency surveillance would

 

(8)2

 

51109-0002

assiti?sffy'the 'tandaxas articulated in and. be

 

   

had no other optima
fat Qf?communieatiOns of suspected
When zone-end of those cqmmunications was in the
Upit?df?sltatES-iand- the communications could only be
?icoll?e?C-tedlfrom a?Wire or'clable-in the United States.

N311 ?tter;th Describedto the Vice President the lmpediments
to Targets

 

 

WAccording to NSA-OGC, Dolhas since agreed with NSA that simply processing
COmmuniCations metada't'ain this manner does not constitute electronic surveiliancc under the FISA.

 

"i



52(6) ?5 ?36) URI 

641

 

 ?fter?two'additibn?l Vib?'iPteSident
asked iGen?ral-Hayds??- .to-Work With his CQUn??eraYid .
Addihgtmig "Becapse earls? discussions-about expanding- NSA
authority, Were ino?ti?dgcumented, we do not have feqords of
attendees 'Orirspe?i??c topiiCS-discussed-at General Hayden?s
nie?tings'with'whita H?usempressntatiws? -

 

 C?f?  3" r? . a. 
45): Ln: 90/ 19?th t?ti?p?h? Fviv?wFer?

  
   
  

 

Between .4 October 2001 and
111: George. W. Bush signed

ions, and one document
described a  I The authorizations were
based on?ithe wrest ent?s. ermmation that after the

1-1. :.September 2001- terrorist. attacks in?ie-United States, an
extraordinalyemetgency existed for national defense
purposes. The Aut?ori?zation documents cO?ntai'ned the terms
under which-NSA-execute?d specialPresidential authority and
were: ?tted Presidential Authorization for Speci?ed Electronic
.Swfueille-nce?ctiv?ities during a Limited Period to "Detect and
Prevent-Ads of Terrorism withi?' the United States. They Were
addressed to the Secretary of Defense.

stj??czex?ber?DO?E, Preside
43 :A?Plth-Q?mil 

     
   

 

 

 

 

mm are n-@a?xN 

6E3

 

. i .r  Q) changed over
time, ?rSt-?sliminati?g tho possiility that the Authority cool?d
collection Of communications with
?ab?o?t? ?nds :in;_the Uhited StatES and adding an additional
be c01LIECted= for

corn unioationsrielatedj to informational torro?sm or:
a1 torrc') In ?7

   

        
    

 

 

  

        statement
add-edgthatmese?cla??ca?cns had boon pteViously

 

uii??fefstbud and implemented. by SA and that they applied
rapist a?d vfumr?larac?vi?e?s. m?oa'?da. [also .sy?nedvaai asQTT-W 1' Elf QC [141% The de?nition of ?terrorist groups?
Within; the authoritioswas alSo retitled, and, .fOr a limited

 

W?vfutgdata; as the Authorization, is information,
but'not the contents of the oomnur?c'atiom?
about the types of collection permitted.

 

we): 

 

 
     

 

ID
II).
3

    

r; . Accdr?dmgto. General Hayden, the
part,- did not change the
communications that NSA could collect, but did change the
location from .WhiCh the A eno' could colect them by

gperniittirigcolledi  . - I 
 States; -?Without that authonzatr

       

(U) NSA @?seuss?ons about the Lawfulne'ss of the Author?a?aton

 

. .1 NSA leaders believed that they could lawfully
 outthe 'Presidentlsauthorizations. However, they also
recognized that the Program would be controversial and
This section describes how key NSA

Director, the NSA General Counsel, Deputy
General Counselj and Associate General Counsel for

 

m: ra?r?rar?? bro-r- llf?F? nr?nu LIT   
1' o?tmaz ?wwnpoipt?wmm?' ?mw?a 67

 In!  IUWHW .

 

5-
was legally
defensible 

(U) Dire?cterpm-SA

..      
may believed-the ??th?oriz?at?bh was .l?e'Lqul-

   

(U) Ga?n?ral' H'?vde'n

  

 jWh?en asked how her-had decided to execute'an';
Autho?zafion that-ssome'Wou1d consider 'l'egally?and Politically
Hayden 'said that h?igheeit
rankinggl'awyers had ad-V'ised himi collectively and
mdividuauy, mat the Program was laivful under the
President-73; Articlelli ?poweifs; He that athreej footers
in?ilencegi his decision-to implement the Authority; First,
do exactly What?the 
photon more? "thBA-PIngam was
simply  expansion -
Third, the pe?odic-renewamf {heAut?oifiZ?tioiiwoufd 
that the, threat Con'tin?ed? to juStify the Program.

 

 .  .  . he
deifenni??d that'the Program-was-433t1?1?needed; ?Speci?cally
heaand NSNS Deputy'DircCto'r threat.
  e?ichre?utho?z?itio?- a?d'jud'ged that the
threats-Continued tojus'cify the Program;

 

I . . - Hayden said othatnnouone at 
exres?sedconcemsto him or theNSA  that the 
Aufhbrizfatipn was not lawful. General
Haydenrsfe?iid that-no one outside; JNSAaSSerted. that he?Sho'uld
stop th?e?Rrog?ram. I-?Ieoccasionally heard concerns from 
memberSDf congress, but he sensed general support for ?the
'P?IIOgram framjthose he briefed-outside He 'emp'hasiZed
that? hecdjd not just. "?ip through slides" during He
wanted to ensure that attendees understood the Program;
consequently! brie?ngslastecl a51ng as the attendees
Wanted.

 

(U) General Alexander

  

  7 When Lieutenant General Keith 
Alexander became Director in mid-2005, some. of

the more (controverSial? legal 
I. a I -

    

o-

i- \m   r?xr? 1.. :errx 1 1
  I bummer; @Rp?wnm?r?J 

 

reviewedafits initial, opinion and determined that the 
remaining three types of collecti?tjn were. legally supportable.

(U) sta Of?ceof General Counsel

 

     rrAfterthe Authorize?d?iwas Signed on 

4 cache 200:1, NSA?s,highjest ranking-attorneys, the New
General 901111361 I-D?pl?lty 51.5 the
AsSO?ciate G.Eneral. counsel?for Operations; Orally. advised?
Generateayden that the. Authorization'was legal

   

(wearers: Ocuhs'e'l

     

i i  a i i. i'After' havingreceiVEd th?ALItho?Zation on'

4' October 200.1, General Hayden: asked.NSALIGeneraerounsel
Robert D?itz if it was lawm'l- Mr?erDeitZI said? that General
Hayden Understood that the Attorney General had, already
certi?ed its-legality lay-{signing the Autheri?zetiem butGeneral
Hayden wanted, Mr. Deit?Z?SyView. Deitz said thatch

5' Getoberihextjold General Hayden- tha-t hebeli?eved the-
Authorizationmt?o be lawful? He added that'he emphasize-(1* to
General. Hayden that if: thisjissuewere before th'eSupreme
it?would liker rule, although not unanimously, that
the Authorization was" legal-

   

(U).Assooiate General counsel for- Operations

   

. a On 5 October'ZOOl, the General Counsel
consulted theAsso?ciate General Counsel for Operations at
his home ?bysecure telEphone. The Associate General
'COUnsel for Operations was responsible for? all legal matters
relatedlto-NSA SIGINT activities; According to  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-encugh information to -asseSs the law??ness of the
concept described, but records show that he was not of?cially-
oleared 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 11 October 200  He reviewed the Authorization
with: Mr. 'Deitz and the Associate General Cou?riSel for
Operations and also concluded that it was lawful.

 

twweFeow ea

 

oniLi?gailty

   


abo?t'ttie took? into account the Sta-Verity
aof?the 171uSejjternber fear that foreignpemons
?ware it: theUnited States PlaImingfatt-?tcke -. The NSAL
 secluded. that: the Authorizes-1*: 
Given the-following: factors; the: General Cannse1113eidivthe
Authorization; was. not violate. RISE

   
   

 

FISA Was note tealistienieans Of addressmg
the inside the United States because
theptoeess lacked speed and agility.

9   TheAuthorization was a temporary 30sdny
grant of- authority.

9-   statute allowed's?ueh  exception, 01?s,.
tome-extent that it did not, it was unconstitutional.-

. attorneysdeterrni-ned that the
President cot?d issue the. Authorization through- his authority"
under A?rtiele of the Constitution to perform ?wa'rrantless
electronic surveillance for foreign intelligence purposes
outhide/iandinside the United States. This Conclusion, they
Said, by theooncur'ring-Opinion in I
Yo??gst?tbn?'heef?t Tabe CO, H. Sawyer, 3.43 579
(1952),  appellate assess

   

. i  'The?Oongressional Authorization. of USE of
Military Fo?rce canono?f Constitutional avoidance,
requires a Court to attempt to mterpret issues so as to
avoid con'Stitutionel Questions, cemented belief that?
the President's ?lterpretation Of Article'll authority had legal
merit.

 

 v. Twang Dink F.2d 908 Cir. 1980); United States Buck, 548 37]. (9?h
Cir. .1977); Zw?ibon-v. managers F.3d 5921030 Cir. 1975); United States Brown 434 F.2d 418 (stow.
1973), cert.? de?ed; 960 (1974); United States v. Bittenko, 494 F.2d 593' Cir. 1-9-74), cert. denied,
419.113. 83.1 (1974). 

 

 

 

I   I Thehssoeiate General counsel for? Operations
vds'sstibeclihis positions:-

 

    

.  7  DoescohgrESs have the: authority-to-
.liniit Frigisidentisil Arman authority in foreign
intelligence collection? Given the threat, this was'av:
perfect-3mm; people killed,
destroyed by foreign
terrorists; anattaijin? the United-States by a
foreign JterroriSt organization. No one knew whEre'
or if there weremore terrorists 
and NSA had? a - collectibn capability unable to

l'hecause with the FISA, you cannot-get
FESA?Orde-rs needed to cover what you
needed covered at that time to look for the
marinas. Kongo to the Freeident; and. tell him
that there isvasstatute that. prevents you from doing
s?mething from a-epllecti?on. standpoint that may
protect?theUnited-States Eror'n a future attackland?
that while thei'country?isin danger, I have to
adhere a statute and can?t get the amount of
Warrants El'needl Any president is going to say
there?h'a?s got- to beta Way to do this a federal law
can?t let ?megstandhere and watch the 
djowt?i the tribe?s. Doe's-the President have to- abide:
by?a statute?depriying him of his authority and
watCh'gthjecountt-Lygo down the tubes? Given the
case law of ?ve different circuits with the- Supreme.
Court-denying Certiorari'in two cases, there was
good'basis fer; deciding this.

     

4_ OGCa?ttorneys Said that they didn'ot
:prepjare?aj?formal written legal opinion because it was not
neoess?aly TheAttorney General :had already certi?edthe
andGeneral Hayden had not; asked
for iaWr-iitten legal opinion. The attorneys also said that they
did not have time to prepare a written legal opinion giVen?the
pace of Operations.

 

.  ., 1.After having concluded that the Authorization
Was lawful, NSA attorneys believed it was important to
ensurth'hat 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. Recogmzing that the legal
basis of the Program might become controversial, they said
that they wanted to ensure that execution of the
Authority Would withstand seruti'ny.

 

7i

 


c:
:5
c?
?x
4:3-



This left blank-

 


[Na

 

7 .  i I I SA P8P operations?began on 6 October 2001
andrendedien. 17'Janualy 2.007 and involved the cal/action, analysis; and
reperting of two types of information; metada'ta and content. NSA
assumed that-t-herPSP Wasternporan/ and did not immediately formalize
processes  procedUres? for operations, were quickly set up to
pretride Slew on terrorist targets. As the/Authorization continued to be-
renewe'dt NSA 'imptemented special precedures to ensure that selectors
used for'r?netadata analysis and demestic selectors tasked for content
collection were/inkedto 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 P8P authority,
a'lthoLi'gh some of these communications were incidentally Collected, and?
of?the Authorization. Over the life
ofthe Program, NSA-?issued more the reducts bested 0n P8P
data, coordinglto..senior NSA leader-s, the value of the was?that
.3131NTgcoverage provided "con?dence that someone was looking. at the
seam "between. the: foreign and domestic intelligence domains to detect
and preventattacks "in the Unlted?States.

   

  
 

to? tests Begins Pee operations

 On 4 October 2001, General Haydon rocoived the
initial Authorization and informed. the. SIGINT Director and
other keypersonnEI.

   

   

 

  

a Aggrp1ancnb?

over t6.er STE



,w?as assi

i!
a

mad to 

rogmm information on

 

Cf)
:6
C33.
as
a



 

 

 

 

 

WAuthorization Renewed

NSA leaders assumed the would be temporary,
so they did not establish processes and procedures for a
longwterm program, and they had plans to cease operations if
the Authorization was not renewed. However, the President
continued to renew theAuthorlzation, and General Hayden
stated that the DCI threat memoranda accompanying each
renewal continued to justify the ProgramSIT-09.0002

 

Authority-Still nut an Option in 2002-

.  ,In January 2002, senior NSA leaders still
I: (35.11th the! FISA rt order process nor the
 ?tmmr?.  Mr. -V 

   
 
 

 I I ?F'i'rs't? Attempt to Obtain Authority 0 
Failed.

 
  

   

mpted to obtain
nic Wife?

 
 
  
  

for
Wers and'foreign agents.

a
?to the

  

 

 

7E2

 

i 

 

    
   
 

3 ,"Thes'request Was prempted by a CT Product
:Linesgt?aff member, Who explained that technical problems
rd?la? f?d NSA?S?wr?ceipt \Qf? aim 11 canes :1 th Duh-F183 orders
:t . ?thesng ha.t? 

  
 

    
   
  

In one: case, an.

   

 lis?gd my, I terrorist agents of interest to
. 

luv v-n

 - -- nr'xn?n? 
m? m1? GRLUL 1w uruzit

23

1 U1 All 0

77

 

 a II 
I of?: \c I a  Iii} - dun (?aw

 

81?09?0002

Activity
November? 2004

 

 

 



3? Deputybireptbr 

 

 

 

'i?sne?or? E?nerar
?enefa?ll counsel:

 

 

 

 

 

 

 

Signals lhtoliigencer 7
Directorate ?Ve?smm? 
 .I  7 compliance

Data, Ac?uisition
.

 

 

 

 

 

 

 

Customer
Relationships

I

 

 

 

 

 

    

?1mg? CT 917539.53 
its}? domesl?

 

 

    
 
  

 

 

I??nag?bforc?r

I I . 

 

 

 

I, at 
h?tygi? ?u-?Id rdpadlhg: 

 

 

 

 

 

 

~PsP-oni?ra?tions?

 

 

(ul) Chain df command

 Dil'T'eCtor.? ex?ef?cis?e?ci se?iOI'
operational Control  authority over 
According Deputy Director,- o'enefau Haytien handled
the Directh managed every-thing
iijz'itH-i-ri  Director at the-Sfag?t of the ?rograh1
stated. that once she-was con?dent that the ngram had?
appropriate checks balances, She left?directzmanagement
to the Director7 Doputy? Director, and the  She noted
 Getter-all Hayden took personal responsibility for the
Pregram and managed it carefully. By'20'04?, Speci?c roles
rotated to collection, analysis, and reporting had been
delegated to the .SIGINT Director, who delegated management
.reSponsibi-lities to the Program ManagEr and mission
execution to the Chief of the CT Product Line
and subOrdinate leaders.

 

(?1'31 a II Z: I
Okix!i [fud?u\zlihaiiklil @l  {nit-1H gi'xiul

 

(U)  e?gr?agnation With 

 

. j:   .  On 24 Jannary 2003, NSA, SID,
arid theF?BfagreBdto detail FBI 1 orkin under
NSAQSIGENT?aut?qrities tc?. SID
Under-the agreement, deta?ees aS?ist'ed with 
analysis, identi?ed and
'sem?lavteid terrorismqel'ated SIGINT in?ammation meeting

.  .., 

    
 

 

    

 


H. b'l Ii Ut?ilx 

8(0)

..


*2
:3


7.57309460029

 

Momma-non Procedures and Addi?ional Con?rms on P5P

   

@pem?c?ms?
. Management emphasized that the
minimization rules required under non?P8P authorities also
applied to PSP. The Authorization speci?cally directed SA
to ?minimize the information collected concerning American

citizens, to the extent consistent with the effective

Intema'l control, or management control, comprises the plans, methods, and used to meet
iliissions, goals_, and objectiVes. it provides reasonable assurance [hut an entity is cff?bclive and ef?cienz in its
operations, reliable in its reporting, and compliant with applicable laws and regulations.

 

I I  . I 

I Liv  

 

rascamplishme?'t Of- ?iie missiml of?e?tection?and PreventiQ-n 0f
terrorismwithm the Unit'edss'tates," NSAJ 
USer procedu??sr For? 
?exampitegas ?d?esoribed in the deOWirigv sections;-

 

0: When enCountered person information,
they accordance-With mi?r?mization
gtiid'a?ee?vhich i?clu cl?ed refiolttin'g?ola'tions or
incidehts.

Dissemination person infomationWas
mir?n?zed by requiringpr'e?release veri?cation; that the
information was-related to etiunterteri?o'rism 
to understand. the foreign ?inteiligence?or
aesess its importance;

 addition,.as. PSPperations'astabilized and the
to be renewed, NSA management
pcheaurjeg to implement the
with the 
Authorization --and protecting  8. person Momatiom By
April 2004, formal procedures were-in place, nun}; of'whioh
were-morer?s?ttmge?nt than those ulsedifo?r 
opera?onsr. One analYStoommented that-the PSP ?had more
do?uin'entatior'i than anything; elselsh?] had ever'been
4mv01-vedfwith.? Examples 0f Controls, Sumo of. which Will be
explai?e'd i?h more *d'etajl in- the folloi?ng sections. of  I
report, include;


4 oordin'a?tors approved Eareign and domestic target
selectors for metadato analysis. The Chief or Deputy
of CT Product Line Chief or the Program Manager
approved domestic selectors for content collection
under the PSP.
Documentation?RES,
leads, tasked domestic selectors, and tippers were
tracked in the Justi?cations for
contact Chaimng Were '1?ecordec1, and justi?cation.
packaQES and appromls fortasking domestic selectors
for content collection were formally documented.

  

 



?i?mrmi? Mg? 



 

7 7} Monitoringasta??ticsvon cmtemt

seisekihg?Ja?d-Irepurts~ Wei-s Ei?d? 'tfaviewe?dbjf

   

iSfIaDsOVQI-sighb and" Camp?an 13321003. A 
.Pr?duCt Line Sta-?tacit?? . EISC: did-
have. to rapbrt an how many.
selectors were 


under ESP authority-gnate? ?ia?i   
d'ialagul?'with th?    Watts perrir?sSible un?cl?sr
magm?hmizationz The, General caunsel far

the operations people-.- d?y in and. dayout.?

?b fWuasD?igenpe NEEe?ngsw-Efl?he Program.
Managerchaifrecl due?clilig?nctinm?c?ugs attended by
dpgrational; They disqusSed
  .OfG-C?gteviewa  9131?s) gram 7 challenges 
procedures,  db??mentation;

 

Mwa?a?a.

 

    

    ,x   
??7Ii1?tad'zit?i? as Si?gtt?ypa 
including}telecommunications .clialijngetype adatiajgbut not; the
cahitentsrof 1E3: ample, 'e?m'ajt

 'Ftd?es not- include  SHbijCt-lineh?r the text. Of
1116 Viibidlare; con?dent!? gCOrltg?t. Tag-Ebony I
information. as. the calling, and called.
-- =?Italephem urttb?x? 13.21 

 

Ii,
9




EB

 - is'83









I  

w.

02" 

  
  
 




{if  



 I Analysis

an ole review in 2006,, the Associate

fer Operations-described Dee's standards

fer complyilingi?i the em. of the AuthoI-iz'ation When



analysis ands-contact chaining.

     

To cenduet Contact .vehaining; under the 
on reqUired that meet, one of the 

. .

*cn??di?dnsz? Dine Partyith the cbminuIi-icatidn had

td'he outside?the'iUnite?l States no  to. the

 could be known. to. be a Citizen, m3)

baSedgon-?ithe- factual: and practical cuneide'rations of everyday
and prudent act, were were
speci?c and artiet?able faot-s giving reason to beli'exxe .tlaat?the
cp'rnrnunieaftion.galatesito international terrorism or activities
inJerep?arettoe-therefor?a ThesAssoei-ate General Counsel for
that gui?dancewas more stringent.

 that the Dec al'Ways required. that

the:  Condition-be met before contaCt?Cl-lainlng began;
were required to establish a link with designated;
'srw?ssr?lgete?dfto .interne?bu'al terrorism alanfides 9r aliv-
miniatures-44

 The  so?eiate G?eneral'Oounsel for Operations said
that'establishing?. a link to international terrorist groups ?al?
Qa??daandrits af?liates met the AuthorizatiOn?s requirement
that-all activities- conducted under the PSP be for the purpose
of- deteeting- and preventing terrorist acts within the United
States. He. explained that'because the President had
determined that speci?ed international terrorist groups and
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

 

?cujsmith: v. 73:3, 742 (1979).

 In March andAprii 2004, authorization language for bulk and Internet meted'ata and Content
?international;terrorism bracti?tlcs-in preparatiOn therefor,? to group af?liated
with ?Atha?i'dn, President detentined was in? armed con?ict with the United states
and-posed u-threatxof hostileaetion Within the United States.

 

mum
 

tn,



 

 

 

the purpose o'f'detestion. and prevention of terrorist acts
within the-United States.

   

 1   
dE?fi?d"?ie NSAstandardlfor establiSh'mg alt-1k- .t?o all?'Qaiirli?a
target selectorswhen ?based on
thesfactual aridrat-i?tiCaI Considerations of everyday'life us,
which reasonable and ?pmden-t' persons act, there are
.r'easonabie?grounds itoxlj?elieve- a.  to Such communication -
teen-agent or a group af?liated with gal-eaten.?

. . ,factsgiving rise to
?-?reasonable-igrounds :fo?r 'b'elief' means reliable facts
intNSA?s posseSsiOn, either derived from its signals
intelligenCe. activityi or facts provided to by
another government department or agency, or facts:
reliably thepublic record a newspaper
artic??e). Whateverthe source of information, the
key isthat NSA iis-bas?ing its determination 0n
articulablefacts, not onbareasseritions made by
someone else. We needevidence, rather than
conclusions. Thustamer-e statement that person X.
"is a-t'rdern'ber. Of a1 'Qae'da? without more

 Will .1101: suf?ce as a justi?cation for
chaining-Drier content-tasking. Instead We need to-
know what factshave led or-another agency,
or the press; eta, to. that conclusion. FoCus on the
facts and-determine whether they lead to a
concluSiO'n, rather than-actie'pting Someone else?s
conclusion- If you d'on?t have enough facts to make
at id?'tp?ninatio n, ask for them.

   

. 7  7, )1n addition, the
Standard-does.notrequire certain knowledge, or
even neceSSarily abetter-  50/ 50 chance that
the user of at?phon'e' or. email is a member of a1
'Qaeda-or anai?liated organization. it requires
only.that a reasonable and prudent person
exe'rcismg good judgment would conclude that
there are for believing 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.

for; Metadata Analysis

 

85'

es

 

chaining; One individual, the equivalent of a 

 

 

tit 

pr?mded 1n theRFl lead, sear-ch l."le and

-?Intelligencc.icoInmunity databases and chain under non-P8P

asthma-es facts to substantiate the link.

 
 

a  i  Shift coordinators were not requ
all-alert?list' selectors that might have generate

 
  

cobrdinator, managed and monitored the alert process.

  4 7 When NSA personnel identi?ed erroneous
metadata- ,coll'ection,? usually caused by technical collection
systemproblems; or inappropriate application of the
Authorization, minimizatiOn procedures required them to
report the violation or incident through appropriate channels
 to delete the collectiOn from all NSA databases. Early in
the Program, SA reported three violations in which the
Authorisation was not properly applied and took measures to
correct them.

W) In

Chained on numb ers as ociate

   

  
       
   



 

I?this-casei the target was fol-sign, but there Was no
link to terrorism.

 

 

?l\l~m  glruN

 
   
  
        

     

chainedion a. domesticttel
the FEE ithatiwas' related to;  
investigation. In  'case,  rgetposedraterrorist.
'th?reatgmside the United States, butt-there was: no
known link to international terror-ism;

 

onsnietadatagloased on-
:p?rQVided lay-FBI related
While the - 

    

 not pose a threat of terrorist

 Metada?ta Needed-for Effective-Contact
Ghaiining

'EffectiVe contact chainin requires.

.i

  
  
   

   

   1 1 
obtained .ar'daily?aveirage of 'approj?matel 
telephony? metadata records and an est mate a?
Internet metadatareeords; Metadataobtaine 11:1 
aut-hor-ities was stored in a protected-database, to Whioh only
clearedand 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. 

 

 

7 )Thisestimate was presented .i'nthc August 2006 application for the Business Records Order, the
.FISC O'r'dcr?tlizlt pertnittetleSA?s'colleotimof call detail records. Although this estimate applies'lo collection
and?a?alysi?s'of telephony metadata conducted under the Business Records Order, and

 

rum 1 ram? 
I 

 

  
   

 

 

operations. mvo. ve three so

ti f; si: tag-king?seliectors.
for content collection, .zcol'lectmg the content-oi? .
and
analyzing. the cOii-teot-cd?eoted; To amply With the 
Authorization, NSA management combine?' .stan?ar'ds
rninirnizatiOII- procedures and specially idfesigned?procedures
to Itask'dome?s?tic Selectors, collect 
communicatimo, and analyze and repoitt-?the foreign-
int?lligenceytliey contained Over the l-ifeuofithe Program NSA
tasked laypro?ximately   fereign-a-ncl domestic s?l??ctors
forlco?'tent collection, 

 

 

 Teaking Selectors for Content'CoH?c?oh

 

 . a . 7 . ??Paslc?ing?W-s thexjdir?ect?Ievyinggof'
SIGINT collection requirements: on designated. collectors.
must task S?B?leCtors to obtain a target?s
.

,5 ?my? guy .5 m;

BeorefNS? .p?iwsoone "taske, 'taxgetpselectops or PSP'Con-tent?
thea?uthorizat?bnrequired that ?target 
comply Wim'mo criteria. First, theyhad to. determine that
?based on the. factual and practical considetatiens of
everyday life on Which reasonable and pmde?t persons act,
there are IeaSonaBle grounds to? believe apart}! to 31.1811
communi'oatiOn is. anagen-t of or ?agifoup' af?liated
with. alaQalida,? as describe-cl in guidanCe  
2005.. Scoond?, the purpose of the-colleetioaihad to be the
preVention and demotion of terrorist: attacks in the United
States. The OGC provided the same guidance for tasking
seleotors. for. content" collection as it had foroo?ntact chaining.
Speci?cally, because the President had determined that al?
Qa?icla presented a threat within the United States, regardless
ofwhere its members Were located, linking a target selector to
designated international terrorist groups or almQa?ida and its
af?liates, established that the collection was for the purpose
of detection" and prevention of terrorist acts within the United
States.

  

 

used under the PSP, making; this a reasonable comparison. his Estimate m5 based on data
available in Augus?tRDO? and cannot'bc-r'eplioazecL

 

 

WApprovais roTask Domestic Selectors for Content
5 A ?Goiiec?on

   

7 SA determined whet-her foreign

,sele'Ctoris-me't the AnthO?zati?on criteria- and tasked them
WithQI-ltr?lrther approval. HoWever, because NSA leadership
obsessed-scissors Iooated in the United States to be
ext-remer sensitive, the associated tasking process required
?ext ?31

 

?oeunientati?gn, reVieWs, and approvals than foreign 

1

 

 

200510 Analysis and Production leadership titles changed. The Primary Production



Centerivianager haeame the primary: approv? authority to: tasking packages.

 

"Fr-3 6 m1  
I\L..il 

90

   

 

 

 "Selectors Tasked'forContent [inflection were

 

Domestic selectors were located in the United States and
associated with alea?ida or international terrorism and were
not necessarily used by US. citizens. I 2008 Attorney
General Certi?cation, NSA reported the z:  foreign
telephone numbers and in excess of eign Internet

addresses had bEen targeted from October 2001 through
December?2'006, which spans all but one month of the
Program, NSA could not precisely estimate the number of

 

 

     
   

?foreignmtemet-address-gas targeted becau-s?erthe 'tools?used by:
-ana1y?ts 3b afora. S?p'temb?r .2005 did not ac'cuzrately account
addresses'targeted.?

W?nnsgoommeom Found that Justificati?ons for
Tasking DomesticfSelectors MetAuthorization Criteria;

 

 A . 7 7 During; 2006:1'ev'riew, the?O?IG: I
fcijh'? that ill-a randcimly selected sample o'f?tasked
domestic Authorizatmn criteria. Based-0:1 a
Sampling-methoddogy, the 0-16 Was" able ?to
conclude With can??denCB that 95 percent or m?rc
taskedifor PSP content cou'ection- could
be H?n?k?d?to aleai?ida, its ass'ociatc?s, or mternational termriSt

{breats  UnitedStatES. Ju?S?ti?ca?Qn packages ?017
211  items, tested-Were supported. by one or more; of the

?119an es; 

   

9 Information associated with or obtamed through FBI
investigations .

 

9?11

 ..

savanna

 

 

    

. A - A   2005', feund that the largely manual
prloicesS?to  anddetasklselectors forco ticollection.
'Was'unr?lia?ble. ,Speci?cally, the feun._ ., rrors-when
comparing records-Of?tlomesnc taepho?ne numbers-and.
Internet identi?ers approved'for PSP content collection as; of
2004 with those actuale oncollection. The errors
consisted of Selectors that had not been removed from.
collectiOn after being detaskem had, not been put on
collection. after havinggbeen- approved, had been put on
coil-ectiipnbecauseof aityfpora 'hical error or had not been
ae?uratelyremrded:insthe In. response-
management tool: immediate steps to
c?oi??ect the terrors  set up a process to reconcile approved
taskEd selectors withselectors actuale on collection.

    
 

        
 
 

1; cetleeting the cantent? of communications

 

     

Collection-refers to the?proces?s of obtaining
communicationsafter selectors. associated with intelligence
targets are? tasked fer collection at designated. sites. Data
coll'ectedjunder'the- P8P was stored in protected partitions-3m
databases. Actiessl-to the partitions was restricted. to
PSP?dltearedp?efsonnel;

 

ts purpose was ?toV?COIIect? international c'ornznumcanons.
However, management. stated that:

There. are 

       

guaranties that no" [domestic] calls W111 beAcollectecl.
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 

   

r?r? rur- If? r~ -. - -
rainvwr?no @i?mwwy puns: . i I:

 

.  ThePragi-am: Management Of?ce. identi?ed four ways.
that NSH might haVe?unintB?tiOIlallyr collected non?target
data:

a .A- have-?been correctly . tasked: using: valid
selECtors in addition. to ?colleetging the desired
target communications, non?target communications;

were inadvertently contacted.

a:  targetjselec?tor could have generated target"
speci?c-poueptieh- that ultimatEIy proved the targetinot
to be: related to: 

Afteehnical, human, or procedural error in the tar-get
identi?cation of pro (fess could have "resulted in
unintentional cOlleCtior-i ofscommunica'tions not related
to 'a1-Qa?ida.

a Technical collection systempproblenisj Con-1d have
resulted in unintentional collection of nonwal?Qaiid?a-
related-targets, EVEn?whenwall stePs-inxtheztarget 
identi?cation tasking 'prOCess had been properly
eXeeoted.

., I liver the life :of the Program, NBA, reported
neidents of- unintentional Collection of domestic

i incidents-rin'whieh the wrong
selector had been :tas_ (See Appendix. for detailsr) In
the se- casos, np?rs ohnel' renewed Sprocedums 
 were given. detailed instructions to report the violations
:or incidentagadjuSt tasking, and {delete collection records
from. ancilother?databases..

 
    
 

  

 the Content of Collected Commanications

   

. . I . .Analysislof content collected under the 
involved the same practices and techniques used in non-PSP
operations. One NSA manager des dsthe-PSP as ?'ust one
more tool in the anal st"ol 

      
 
 
 
 

  

   
 

 ..     a . .. ..  Collects
communic tibns? were-men. necessary, and
processed to makel'them usefulfor intelligence analysis and
reporting. Analysis included not-onlyalisteningfto or reading
the content-s of a- communication, but draWing on target
knowledge, cOordinatin?g and collaborating with other
and integrating Col-lateral information, metadata-,
and information from databaS?S- and pub?Shed intelligeH?Ce

 

Cw?)


INK.) 

amt-?mom. 9)



94

   




sway-0002

lie-parts determine Whether the communications included
foreiin intelligence that was timely, unique, actionable, and

 

 

seriallzed'report'is a formatted intelligence product producedlpursuant to USSID CR l400 that
has a. reference?s'erial number, contains foreiguiutelligence information derived from and goes to
approved-1151313 o;f'iirtelligel'1ee.
.  :4 0?  H, issued additional reports between 'l7Jauuery 2007 and December 2008
that-we're briee'd on'an'jalys'is of data previously collected under PSP authority.

 

 

 -. ., .. a, (hp .m r? 
9151? 3.1.: l- I
- a. I I?ll?i 'f it"sr: in?: 1' ?i

 

 

etad?at'a Analysis 

 

 

b1retained documentation of
,AthejahalySis,?supporting customer request: or lead

information, and a description of the link to terrorism for b1
tippers based on PSP collection. Documentation of analysis 
Was not retained unless a tipper was written. b3)
'Counterterrorism personnel updated information in a 13713
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:

 

 

 
 

  

b1,
tippers were based on telephony metadata b3,
analySis when telephone numbers had only direct b7E

contact [one degree of separation) with a knoWn
terrorist as de?ned. by the Authorization.

 

95

 

  

detailed telephony b3: b7E
*rnetad a.analysissthat'inelnded? contacts with two
id?Egre?es ofsepa'ration from known, terrorists.

 
 

tipperswere based on telephony and. Internet-
metadata analysis.

"Contth Reports

 

b1, b3,
b7E

 

Freedman-us; Reporting

 . . .. _.;Before sending P-SP reportsto Customers, NSA
U.S. per-son information, as required
by 'rr?nirnization procedures in USSIDSPOOI 8. The CT 
Product-?ne 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 US. person information. Oversight and
Compliance perSonnel reviewed U.S. person?inforrnation in
reports, determined if it was neCessary to understand the
foreign intelligence in the reports, and submitted
recommendations for the insiusion- of US. person
information to of Information Sharing Services for
.?neil?Z-approval. For Example, if an name was not
necessarytounderstand the foreign intelligence in the report,
the name-Was deleted or changed to ?a US. person.?

   

 

?NT-101mm: 
96 Tg?m z?Ln-rinwinx nit/DWI:

 

 .h .. 'versightza?ddidnotfreview.
timers; based-ion. meteda?ta analysis WheniN began. to 

-agenci-rtippetel?b?et1:  thie' CQnte?f-J?Qfsa 

adaptediits 'proceduresifor the diesemination. ems; person;

   

?i?fen?a?en. 
Wafer-elated for the Program to .assifSWith-r?vieWS? They
gave-PSBIan?d: other-terr?fi?m restarting priority for retier
oyer other Agency reporting, 

my; use er enemas"- eras-duet

 

 

in 

This information only for intelligence
purposes in- an efforttogdevelop potential;
investigative its-ailier It canhot?b'e u$edin Court
proCeedingS?, subpoenas; or forsother legal or
Lam-poses,

 

V.   venue ef?ng i533?

 

Referring to portions-of the PSP in- 20055,:
said'there Were probably no communications
more imprtant to NSA efforts to defend the-nation than
those involving al-Qa?de; N-SA collected communications
when one end was inside the. United States and one end Was
associated with ?alaQafida or inter-national terrorism int-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 Haydensaid that,
had in place before the S?epternber?2001
attacks, hijackers Khalid and Nawaf Alhaz?mi
almost certainly would have-been identified and located.

 

W111 May 2009, General Hayden told us that the
value of the Program was in knowing that NSA 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 thele Deputy Director for
Analysis and Production on 1-1 September 2001, echoed

 

 

TWP 

mt 97

98

 

General: Haydenfsceomment: ?The value of the wasi'n, the
con?disnce "it ?ptOVided? that someone was looking-at the seam
betweentheerfo?reign and domestic intelligence domains.?

 

"Theszrmer? SID Deputy Director for Data

   
      
 
 
 
 

    

,j (lumen-t
fr reporting on

   

asthe-most?impottantSIGINT successo b1: b3: 135:
?NSA'anal si?sofl-PSP: me a? b7C, b7E

    

at 
Alexander Sand. Probably saved more llves? than any-other

  

?4 From an operational Standpoint, the P3P.
enabled" NSA to:-

9 support customers

0- that contributed to customers"
i?nvaStigativeeWm-k

 

Support to Customers

 
   
   

nut-r1 ers no account for requests submitted betbre NSA
began to uSe-an automated tracking system in April 2002.

WBased on. infer

. I .bt?i??d utld?i' P3P-
authority, SA sen

 

 

13-" - .1 ?mm M:mnr~m1umr~m
N9. uuL?n/ . UN whammy)

 

vaude?FBjI. In (if-the Program, theii?Bi said that
the-large number o?tippers fromgNSA was Causinguthern
ue?ecessaey work-Ibesiaus??ag??tstreated cap-h emerges- a
lead requiringaeti'om General Hayden said thaiNSA?s 
infematiq  be added; to iFBi?s
"knomedge base, not-mat the FBI aet: on? 
'i?fgri?ati?m?l}. that its-was sending-too
mueh data- t0?7t11eFBI, the. Agency made appropriate
adjustments.?

 Reporting Contribu ted to CustOmerS? In 

 

=opera?onsl.?

 
  
 

  
   
 

 

    BI-did-nqt-routinay
pr?ovi?de'lfeedlbaok?on NSA reportmg under the PSP, and NSA
hadno mechanism to  sissessthe xeffe?tiveneSS of
SIGLNT reporting  general or. PSP raportirlg in particular.'19
'lt 1'3 
eustdmeredidnotknow that  

      

  
 

  
 

Gen?r?al'Haden
noted ?thlvatsuceess. stance decreased over time as intelligence
became more integrated-  it became: mare dif?cult to
attribute success "to any one aetivity.

t: Of?ce
?t helped

 
  

C, ThePr-ogramMan
proVided' the following   
-r?dire?t*FB' ESQ-1113063   i . . i.
 ?iewecu'ng. The
cases in which NSA provided reporting
?i?a?t Contributed to FBI investigations, FBI Confidential
human sources, FISA warrants, arrests, and Convictions.

agemen
t' U'th

 
    
   

    

 

 

In Jug/"2007, SIDiniliated a fin-ma! effort to assess the effectiveness of its CT'efforts. By the fall of
2007, that effort'Was Struggling?

 

9E9)

 

 

b7D, b7E

b6, b7C,

b1,b3,

 

 

 

{?rn,tf?ma ntl?






 

bl,

 

b3,

b6,

b7C,
b7E

 







1?3
C3 
at
as
.
E-I


 

b1,b3,

b6,

b7C,

b7E

 

 


@3




 

 

 

U)
*3'3


C)



 

W4

 

 

 






. 

 

 

b1,

b3,

b6,

b7C,
b7E

?i @153

 

?:16







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c:





 

169;

fig



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IKITI

I

 

?il 

 

 

yam-2091.0092-

 

{?ll

112

 

 

3309:0002

 

 

 

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?53
a:



 

mm

1!



Tr tag/r?

?aw/Mn 33mm
val-k vvuJ. 3.1.1?

 






 

 

 

 

    
 
 

.  11 1?2 President directed [30.1 to
Cont?iusworking on the legal issues, and on 15 March 
issued avthree page memorandum to the Deputy Attorney

h?e it had only begun to analyze the
6" had to i-sSue_a ?nal opinion,- it
types of collection authorized

31 

  

 

may. Gen '31 for LG issued a memorandum on 6 May 2004 concluding that
7 r: .I  er 7.4- 6 

69
T459 HQEE, 123

?HZr-?l

 

*?ST4'09?in?i0f2

 

I
i a



.7

=25

@373

 

          

comm cat? . -

ht; mi'nimizationprobablccause standayd states that the Agency may target for 

 ahd?llie'commU?'i

catio??l

..

 

5115 or fronia?forei

311' Country

-

ollection,

 

.ST?Qw?ooaz

 

 

 

?1127



g?

- 

 

This page mtentmna?y. left i'blank.

 



113(0)?

 

Wi?l?he OIG issued a report for each of the
'13?in.vestigations- 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?ap'proved activity previously
authorized by the PSP contained nine recommendations to
management; three have been closed and six remain open.

. Beginning 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\oki'ymii?ii I . Pg,@

    

     

g?crfromNsA database-s11122004; therefor-e, 1t was

?151;: to-dgterjmine extent-pf that
Ec?llect?ijqng TitiaNSAfQIGiW?l'clos? d?ut?this' incident ?in an
tontv'he Intelligence oversight
'Bbard..  

not: jp

-   Jon 
"Jl?s?c?l F?P9tt6d5t0 the. 313? had been?uSiilg@n
?ale rtilist?f? to compare, ih'cb??iig FISA

ers-raSSociatgd with

 

cbu?te'ir?t?eirroriisni? tar ?c'ts ta?ked lay-NBA collecticm.
NBA had report (1.11:0 the CUur?t that of
numbersfo which had?detern?ne?d that areason?abl?r
artigulable? suspicion existed -that.t-he numbers. were related
ti). a-terf?rist-idr? 'aniza?onassociated
H?wgv?er; Ih? majority :Of?jSalectors 1 Orr-the
alert 11.3? a no eensmibje'dt?d to; a fgannable? EI?Cul?ible
?s?SPiCiQn ?det??ninatibm The N55 this.
incident to th?f: 
shask?lerdi updates-as required, a detailed
NisA-jaosday to the Business
Records E-ISC ordgr?werenthe- subject :of-Seve?ral recent

   
        
    

s?bmissioh? to the F130 and-o?f-NSA brie?ngs to
gres- 'onal' ov?ersight cammit?tees.

I  

1132






 

I


 

Other IG Program concerns Were documented in

the 2003?2008 reporter Presidential Noti?cations are listed
and described in Appendix F. The 2008 report described the
adequacy of Program dccompartmentation plans. 

 

BPS
BR:

 
 

rem-
COMINT
CT
DCI
DNI
can
DQJ
E0
FAA.
FBI.
EISA
FISO




 


0&c
ODNI
ooc

01G
OIPR

OLC

   
 
   

 

.?Centtal Intelligence Agecy
Communications In t'elligence-

. Counfette.rroricm,

Dire?ctOI of Central Intelligence
Director Of National Intelligence.
Department of Defense:

Department. of- Justice

EKeCutive Order

FISA- Amendments? Act

Federal Bureau of "Investigation.
Fere'ign {Intelligence Surxjeillance Act
Foreign Intelligence Surveillance C'ourt
Generalicounsel

Gigabitsper- Second

HouSe Permanent select Committee on Intelligence.

Inspector General

NatiOn'al Security?Agency 
National Security Agency/ Central Security Service
Oversight and Compliance

Of?ce of the Director of National Intelligence
Office of the General Counsel-

Of?ce of the Inspector General

Of?ce of Intelligence Policy andR'e?eW (now the Of?ce of
intelligence, National Security Division)

Office of Legal Counsel

 

 

In

.
I

 

38175090802

   rigs-am M??agerj

Pan Registet/Tfap BEL-Tracey
PreS'iden?t?s' Sujrv??anc?; Prq'g'ram
RFI Request for Info?rmatian?

SID. 

.3391.

   
  
 

i onc-In'elligence

0m 

 

M1. 
 I 

 

 

. 1 so?: 5' s?i'ii?i ,e w: it 

(til Else's-am: reams,
(Uni-comm (U) Commu'nications intelligence - EtechniCal

andintelligen'ce infOrmation deriVeci from
foreign communications by someone other
 the intended recipients
(mi-EC. 12333 1U) Executive Order 12333 ?Unitedgsratj?s
Intelligence.Activitiess- providesgoals, duties,
and reSponsibilities with respect to the.
national-intelligence Effort. It mandates that
certain actiVities. of U.S. intelligence:
compcnents are-?t0 be governed by
prociediiresi?issiied lay-agency heads and
approved. by the Attorney General.
(U) PISA 7 am) The Foreign Intelligence Surveillance Act
pf1978, as amended governs the conduct of
certain 'BlectrOnic SLIrVeillance activities
Within. the United Statesto collect foreign
intelligence- information.
 A'nalytic tool for contact
chaining used by to do target
disCoviery by quickly and easily navigatith
global communications metadata

 

  Header, router, and
including
teleC'OrIiinunications . data, but
not theconte'nts of the communication

    

 primary storage, search, and
retrieval mechanism for SIGINT text

(U) SANITIZATION (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.

135


'9

CD
I


 



(U) INTELEIGENCE Agcatqgory ofin'tslligenee comprising
- - - - . indixkidually or in?com'binat'ion all 

slscuo?ic intelligence. apd'iforeign

however transmitted.

(U) TEAR LINEREPORTSE 1U) Reports used toy-disseminate 
sanitized
information ingth'e same recur". The,
sanitized. 'teatr line conveys the same ?factsasi
7'thevCOMINT?controlled information, While
'hiding?COIvIINT as the source.

(U) TELEPHONY (U) The technology associated with the
Electronic: of voice, fax, and
other betWeen parties using
system's historically 'asSociated with the

(U) TIPPERS

 

 

SE- ENS

 

APPENEK
(U) Abw? Em R?vicgw





 

1138

 

This" page intentiOnauy Isft'bla?nk;

53509-0002

 



0
Fl
,3 A
?1
c5



(U) Objectives

 

seem the Review-

(U) The FOreign Intelligence ?S?urVeillance Act 
Amendments Act of 2008, which Was signed ?into? law. Lyon
10-July 20087], requires?that the InspeCtors General. of 
IntelligenCe Commanityelements that participated in the
President?s Surveillance Pregram conduct a
comprehensive review of theProgram. The NBA Of?ce. of the
Inspector G'eneral (DIG) reviewed participation in the
PSP. The Speci?c review objectives were to examine:

a (U) e?v?olution-of the as it
a??Cted NSA

or (U) NSA implementation of the, PSP, including.
preparation and dissemination of. product :under the


(U) NSA aCces's to legal reViews- Oi? the PSP-an?d access
to informatiOn- about the Program

a (U) SA Communications with-and representations
madeto private sector entities- and private sector
participation

0   interaction with the 
Stirveillance Court (F180) and transition of 

authorized collection to court orders.

0 (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 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 

 

- .i 'r \l 
lgT' 1139

 

soo'pe 0f- _th'.is review was liiniteC-l to 
participation in the PSP from ?4 -'O'ctober 20.01 to 17 January
2007 The .rieviewuincluded - NSA activities"; before and. after 7
the terrorist attacks of 11 September 2001 that led to the
Presidential Authorization on 4 October 2001, It also.
included the ?transition of P'SP?authorized activity to 
orders.

  

.  Toasatisjfy review objectives, we interviewed 

.nrrent and, former NSA personnel who participated in the-
PSPaincludingNSA Directors. and-Deputy Dircc't?f', General
counsels, Deputy General Couns els,? As'soci'at-e- Genera]
and the Inspector: General,

  

responsible .for'Program Oversight from A - - 
August-12006,; we" 
as Well as 'ieadersh
Signals'lnt?lligenoe

 
   
  
  

., interviews ofthe former. Director of 
Generaliiayrien t" neral?Counse-l
for. Operations, were conducted
with other l?G: f?ces lin?Volimd in the join-t? PSP review,

            

 We requested White House-documentation of
meetings at whichGeneral Hayden or NSA employees-
discussed the-PSPOr the Terrorist SurveillancePrograrn- with.
the President, ViCe President, or WtejI-lonse personnel, but
.jdidj'not receive a response before. publication ofij report.

    

We reviewed records dated 27 July 1993 to
1-0 July 2008 that pertained to review objectives. Records
included NSA pelicies and regulations, correspondence,
ewmejl, brie?ngs, notes, reports, calendars, and database
reorts.

Numbers of selectors tasked and reports issued
were based on information provided by the PSP Program
Management O?f?cevand were not independently veri?ed
during this review;

 


r553") Cr'x 

 



 

(U). Priori coverage I

(D. Information about ?individUals cleared for access
to Prograln info'rrhation. Was based on records provided. by the
Psti-2'Projebt' Security Of?cer. and?Wer'ei notindependen?y
veri?ed during this rev-ism.

 The OIG began oversightsof- the PSP-and. related

activities? in August 2002 and'is?s'u'ed tWelve reports dated
2?1?3February2003' through-.30 June 2008 (App?endix  The
01G also issued 14 Presidential from

March 2003 to. October 2006 (Appendix F). Detailed
discussion of the Oversight of the PSP is inCIudEd in-
Seotion'VHT of- this report.

As portions Ofth?rP1?0gI?aII1 Wereti'ansitioned

to FiSC-brde'rs for the collection of in?temet .mEta'data 

"tolephOny business records_,j theOIG?i?eviewed the execution

and'adequaoy of centrols inensuring compliance Withth'e-
orders. The DIG did not test theef?oacy of controls. for

*metadat-a collected. under the authority of the PSP or coui't
orders. Three reports summarized investigations into

possible miSuse (if-the Authority 01' violations orders.

One report summarized the OIG?s?oversight of the P8P, and
the report reVieWe'd the adequacy 01' Program
deoompartmentation plans.

 

?Mil

?114:2

 

This page intentionally left bTank {(L) me?ema? gammwazmwm

 

ME

 

3113* left blank.

1011



1's page intent

-c

Th

 



 

(H) tame nathcr?aat?cns 

    

a . documents that containedithe terms
under which a?ecuted?speCial Presidential authority Were addressed to the
BeCrEtant bf. 'Deferise-and! were" titled ?Preside n-tialinutho?zationfw-Spec?ied
ElectroniC?Suw'eilicinc? Activities during Limited Periodic Deteot 'andPravr-int :Acts? 
tofTerrorism'within the?UnitedQStates.? "The ?rst Hu'thorizaticin eonsiSted of eight
paragraphs,  but'One? There

a o,  . Tins, two modi?cations, and one document described" as

   
 

 

Description of. Authorization Contents by paragraph:
(U) Paragraph 1- - The Prestdentis Conclusions

. The-?rst paragraph referred to-the
?1 September 2001 terrOrist attacks and the Presidential.
directions [to the Seeretary of DefenSe] On employing 
Armed Forces. The ?rst Authorization contained statements
on thefresident?s Conclusions basedon informaticnrabont:
terroristcapabilities; this statement became the second.
paragraph in subsequent Authorizations. After the ?rst
Authorization, paragraph one included references to. all
pretious -versiens.=or the?Authorization and the dates-they
were signed by the President, 

 

2 - Terrorism Threat

. -. .. After the ?rst Authorization, the
second paragraphstated that the PreSident based his-
conclusions about terroriSt capabilities on information
'proni'dedby the DCI, including an attached terrorism?ireat
assessment, a document that Consisted of ?ve 'or more pages
and Was signed by the DCI (later by the DNI) andthe
Secretary of Defense.

 

(U) Paragraph 3 - Considerations

The third paragraph contained the
President?s considerations in authorizing electronic
surveillance, including the potential for deaths, injuries, and
destruction from acts of terrorism, their probability, the need
for action and secrecy, and intrusion. into privacy, its
reasonableness, and alternatives, In the ?rst Authorization
the considerations were in paragraph two.

I . - Paragraph three of the ?rst
Authorization stated the President?s determination that an

 



1146

 

?extreordinaryiemergency? existed made sleetronic
surveillance Without a court order- a 

interest-.51

Paragraphs ~Auth'oti2ed Electronic;

   

surveillance

Paragraph feunconta-ins the
Prestdentis statement of't'he basis for issuing the authority
and; thezsubs?jtantive description of. the eleetronic Surveillance
thatheauthorizedland-directed. The President States that he
is? noting pursuant to Article of the ConstitutiOn, ?mC-ludingx
theexeCutive- pOWer, his authority as commander in Chief of
the Armed. Fotee?s, "his duty to preserve, protect and?de'fend
and the Authorization for Use: of ?Military
Force Joint Resolution (Public Law 10740), with due regard
fer the Fourth Arnenclnient. There were major and? minor
changes in that-deScription, resulting in seven versions of
paragraph four over approximately six years.

 

 
on EleCtronicS'urveillanCe

 

 

?Beecr-iption Of Changes to Authorization
'Language

Versio'nIDate

 

First Au?thorigatiOn
4?oet?ober 2001

Authorized SA to acquire the content and
associated motadata of telephonyand Internet
communications including Wire and cable
communications carried .intozcr out-of the:
United States for which there was probable
cauSe toz?beli "n of the communioants

1'  hat one communicant
wasengageu- inv-or- preparing for acts of
international This Was the only
version of the Authorization to use the term
?probab'leeause.?

  
 
  

Version 1 also authorized the acquisition of
telephony 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.

 

 

Paragraph four included the. authority to

 

 

 

The tliirdparagraph was marked with the number three in two places until the error wascorrected in {he
septeniber 2003' authorization.
This parenthetical condition'is present in all descriptions of content collection.

 

 

 

Description of'Changes to Authorization

 

 

ZrNovenibef 2001 and
30? NOV?Embe'r 200:1:

Language
retain, precast: analyzeand disseminate
intelligenee from the ScomrnUnications acquired
7 under 'therauthorit?y.
?V?rsii?? 2 :Authorized-NSA to acquire the content and

'associated-metadata of communications for
'?-reasonable grounds to
 "e of-the communicantswa
   5  hat One:.communicant' was
?outsidetheUnited States and was engaged in.
or preparing-for acts of international
terrorism?- This change to the wording on
collectingcontent eliminated the possibility of
interpreting the-authority to permit cellection
with-both ends. in the United States.

  

     
 

    

This vet-sien-also, authorized the aoquisition of?
'tele?pho ['1ij and Internet metad'ata for
Communications With at least one
communicant?outside the'fU?nited States, With
no Communicantknown to be .a citizen of the
United States, or When there were reasonable
grounds to believe that the communiCation
related to international terrorism or activities
in; proparation for international terrorism.
VerSiona-Q was used? in two Authorization
'deaum?ntsr

 

 

?Verl?ibri .3 . .
S?Januawzmoz to
14' January22004

   
 
  

?ut? as 'othe' "se' 'id?'rical' to the

,musversion.
This Versiono?f the authorizing provision was
used in ?17?9-of, the documents.

 

Version 4' .
111' March 2004

 

           
 

retrieval of that information Was conducted in
accordance with the Authorization. The term

 

?acquire? was de?ned with respect to metadata
6 .- .- -a a 't 

       

 

The proisiOn
?nt?s tatement. that both 

 

at.  sea. the nest

 

 

 

as ?based-on the factual and practicalconsiderations of everyday life on which reasonable
persons act."

 

i4?



 

 

versionl?ate

Description of Changes to, Authorization
-Language

 

. these were-consistent with all.
 previousAuthorizations-and thusapprova'l fer
acting und'er=that de?nition was retroactive

 

- Version 5' 7
19 March 2004

 

Became eff?ctive: in the middle of a ?previously
authorized period as the resultof a
modi?cation.

authority to collect content and
associatedmetada?ta was-changed to specify
that t11e2terrerist groups for which there was
authority to.-collect were aleaL?ida, groups
af?liated; w'ithaLQa?icla, or another group that
- the Freeidentdetem?ned was in arnied'COD?ict

 

 

Version 6
2*April 2004 to 120
September 2005

I Also Inseameierfeg?ve in 'Jthe? middle of a'

previously-antheriz?ed. period as Itherresult of a
modi?catiQn-v

 

 


_1ir1e,d
was in-arrneducon?ict with the United States.

Version 6*was used in 12 of the documents.

 

Version 
26 October 2005 to 8
December 2006

 

    

 

otherwise menace; to mat in version 6.

Version 7 and was used in the ?nal nine
documents.

 

 

(WW

(BMW Paragraph 5 - Detect and Prevent

In paragraph ?ve, the President

etatVEdthat the surveillance was essential and appropriate to

 



a: 

worm ?n  1- 

  LVW .

Err

81109-0002.

 

detect and prevent future aets of 't?errotisrn in the>Unitied
States.

Paragraph .6 Minimization

    

_r 7 Paragraph six directed that
information .c?oncerninglAmencari Citizens he unnamed to:
the .e'Xtent consistent with the; miSsion and with the.
AuthoriZation.

(U/Iroee} Paragraph 7 usNotify?ing cohgre'ss

    

-. . J. Paragraph seVen statedthat
.noti?eation of the Authorization outside the. executive branch
Would. be deferredi but the President stated his intentto
notify .C'ongress when consistent withnational defense. When
select members of Congress were briefed on the Program,
information on the brie?ngs was contained?in paragraph
eight.

(U) Paragraph 8 ?3 Other Notifications

    

. . a . - 7 The initial Authorization speci?ed
that Collection days after- signature and
requiredreporting- on changes in circumstances-underlying
the. Authorization. After the initial Authorization, paragraph
eight contained a statement on reatricting noti?catiOns to"
GOVernrnent of?cials outside the executive branch or it
named-individuals, by title, who had been informed since. the
previous Arithorization period expired.

(U) Paragraph 9 Expiration

i - After the initial. Authorization, the
exact date of- expiration was speci?ed in paragraph nine.

(mam) Paragraph 10 - ?The President?s Ultimate
Resp?onsibifity"

The Authorization signed in March
of 2004 the only one not signed by the Attorney General or
a Deputy Attorney Genera1~ is also the only Authorization
that contains a paragraph ten. This paragraph contained a
legal argument about the President?s ultimate responsibility
to interpret the law on behalf of the eXeeutiVe branch andhis
authority for issuing the Authorization.

 

we

 

51749-0002 

 

  

president
  - i  The weresignedby
'the-Pre'sident', followed-by aplacqand date off'signatL1_re, 
but o-ne-?authorizatitm Was signed in Washirigt?Oil, D..C-.

   

?other. Signatures

,1 . I  ?iUndelr? thei?phg'apsc ?approved for
form and legality," the-Attorney Generale signed all but one of
thea?uthoxizations: Thez'd?ther authorizaticrr and ?thci?two
modj?Cafioris were signed by ihe'Counsel to the President.-

   

Note:

 
  

 

 modi?catibjn's?, 
have a?handwritten .nbte signed-by flies? a 7 sense.
(orDePu'ty Secretary of Defgrise)? direqti?gth? NSA or the
Director of SA to execute the donument.

 

I

I Ty? 'fl fl!
15KB ?@309?

 



my: Wme?im my Eva-mg-

 

1151]

1552



This; page intentionally 16ft blank.

 
 

(? 

 

 -   

:3 . . . i 
?Fimeimee? ties! Events

(U This timelmeincludes key events 
implementation of :thePresident?s? ?Sui'Ve?lance 'In'ad'd'itioII. to
iss emcee the Authorization, the timelineincludes-.seleoted. CommuI?cations
--between NSA and "oer: tees the Foreign Intel-ligetfce surveillance Court 
Beoause, thetzttir'nelineis limited to documented.
1t is notral?l-injcluswe. 

     
   

   

extents  cOmmunlcat1onsv,

 

 

72001

east-o1 1st Presidential Authdrizaticin signed

4-;Qetw01 lGenerai Hayden ?br?iefsWhiteiHouse (Presidentt Vice 
-. VP COh?s?eij?VP- it Counsei) 

       
 

  

   
       

 NSAbrjeftheirj-a?nd, Rankithember oi-?House Permanent 85$th
3 'inteiifggenoe Vice Chaif'o'f senate Seith

Committee on intelligehoe (380i)

2mm ?an 

 

      
 

14?Nov?0-1 NSA briefs Chairend .Ra'riking Member, HPSGI. Chair and Vice-Chair.
sec:
30-Now0?1 3rd Presidential Authorization signed

4;Dec;01 NSAL ?Senate Defense Appropriations subcommittee; and
Rahking Appropriations Subcommittee

 

2002


     
 

11?Jan?02 NSA briefs Department of Justice, Of?ce of lnteliigence Pol?oy and Review
QEPR), James Baker

31-Jamoz- NW3 mm 'etambeh

   
   
 

5?Mar~02 NSA briefs?Chair?and Ranking Member. and Vice. Chair, 3501

1153

 



   
   

 

104Apr??Q?2 NSAbriefs Chair sac;

 

1=zmmay+02 briefs ihCU'mibent?FISC Presiding JudgeKollaereteliy

and Ranking 


  

V.  ?SA-briefs FtSC'PresidingJudge Koltar~Koteliy at the'White'House
NSAir?Il?s?peCtor Genera}. (1G) cleared for. the PSP

1Dtt1Presid_e_ntial Authorization signed

?gs-3pm.

     
 
 

Depuw General Counsel AssociateGCrfor'Operations,
"d?iG" 

     

18?S?p?~02' TsthiS?Al DuesDiiI'gence Meeting
sweep?02 NSA for

   
    

 

 

 

16?Dec-O-2- iG adwses General Hayden to ISSUE ?Deiegatzon of Anthonty Letters"
to "units that administer the project"

2003
B-J?an303 ?1-3th Presidential Authorization at Red

   


I
.Rsratrama rag??r"- I1
Tam? M: ?and?! :1 :?w?ar   aqu! we: {a ti mun?m 

 

. hi ?w v-E .2:  5-fr- 
We! 11,, "El: mi?gur; Hang/5 

 

       

FBI ?Din?citor visits  far: brie?ng
ngan'?g briefs: Chair and RankingMembe?r. HPSCI, Chair and. 
I

   
 
    

 

k' 'Gi?neraI-HEYd?n [531185 ?rst-.D.eiegatign of  {Di-key
Directorate Qplerational personml

        

     

 

mama:

i Mtg.-



 

 

 

?#55



   
 

"Tn-ism? r? =1 amrap? . rah/mm}!
WEE-W a-vm.? 1.. 5MP  - L353: Ra?: 

to dist-mas PSP'Qperatiohsand Customer
. needs -

3400503

15-Oct-03 

      
 
    

    

    

      

1~Dee~031 paratione

$132903 PSP Jegal?Dpinio?nsand is raid that
?a request ?Sh'Qut.d ?CQmeisfrom G'Bn?r?l' Hayden

2131::Presidential Authorizationsigned:
:le?moasks Genera: Haydenth VPCounsei's-permission-for NSA

mac-013'

   

  
 
 
 
  

20.04
B'aJan-Ud. NSAy-br?xefing-?Zto ?5.on Mr, Pyhilbiny Mr. Goldsmithfor'Mr'. .Goldsmith's.
ahdoth?r-NSA Sig?nazs Intelligence Efforts against

and  meet-t0 disCussthe-PSF.?

andfrecent-Changea Lat?Ns?A?i.

 

 

?Generat Hayden brtefS?DtrEGtOF of Central'lntethgenee-IDCBon of
the PSP

10~Mar~?4 General-Hayden of'Sta'ff, Deputy
DCE, Deputy. AG, and FBI Director. PSP

10-Mar?04 aGenerai Hayden briefs Speaker of the Heuse. Senate Majority and
Minority leaders, 'HousefMinorityLeader, Chairman and Ranking Member,
HPSCI. and Chair and Vice Chair, 850!

10?Mar?04 Genera! Hayden briefs Sactetary 0f Defense, DOD Principal Deputy GG

11temaryo4 23rdPresidential- Authorization eighed

'i?1-Maer4 iG? and-Acting GC discuss?new Authorization signed by President?s

:Co'unsel rather than the AG
NSA brie'faHouae Majority ad

   

12+Mar?O4
muf?er-04

General Hayden briefs House Majority Leader

Revision to 23rd Presidentiat Authorization signed

 

. 
31 I: 

?at! Emu-
few?. 1 in?!

?a

. 
 :41

 

Ix? pr:- f? A,  *ri-?Kaixrg 1gmg! gen. 2

 

 

ginApnozt 2th Ramon to 23rd Presidential Authorization signed


Order?a?pprov?d byFl'S'C
?Et-FreSi? ntEaI-AuthOrEzation signed

 

Advise?

 
   

i'Auth?riati?oh signed

 

23-?Sep904 Pr?ESidentiat "further direction" of 9 August 2004 expires-
as Chair, 

 

 

17-Nov-04 'ZBth Presidential Authorization sign :1

    
   

5-Jan-05 NSA briefs Nationai Security Advisor and White House Counsel

23th ressdenti?al Authorization signed

 

??57

?Ti 58

     
    

seals; 5  
SSCE,

25$?9b455? GBnere! Hayden briefs'Wnite House Counse! and Counseirto Deputy/AG

dams-10,5 ?B'D?th? Presidenti?lerthoriZation signed

 

.IGsneral Hayden'briefs DireCt?o?r. of National inteIhgence?(DNl-
23?May?05. Two-fevei PSP 

*li?Jpn?OiS 'DiSCUSsionsto seek FISC-orders to authorize. contenteolleotion begin With
. 

. 93'2nd- Presidential-Authorize use - med.

   
   

 

      

      
 

 

 

ersnew Director General

 

.ErlncipaIDepuly DN
Ataxa?nder on thePSP
10aSep-?5 signed

154eSep~05 Chair?and Ran?kingMember, HPSCI, Ghairand 

en

   
 
 
       

 

 
 

 

13.09.2415 36th Presrdential Authorization Signed

164Dec-?05 Neerork Times says that President secretEy authorized NSA
. eavesdro in on Americans

   

DOD-16 receives bush-signed by 39 Congressmen. reques?ng a reView of

the PSP. IG faxes the Ietterto the NSA on 10 Jan 06
21-Dec-05 NBA briefs 

20090-05-

 

r- i luvminixkov?gr?ni is?wa tantra

 

 

SrJan-D?-  iG ancifDoD iG' discussietter from 39?Congressmen requesting
DOD '36 review of-th'e' PSP 
NSAIbri-efs' nine. FiSCjudgejsand three FISG legal advisors
briefs-Speaker Majority Leader, Chairof
 ,Chairand Vioe?Chair, 

NS briefs Senate Leader. ChairSSCi?,
jg a  .

     
 
  
   

27%! ani-O'B'
 -J?an?06;

 

 

1 NSAjbriesthairSSCi
16~4Feb?106 NSA briefs "Speaker of'th?e Houee and Chair; HPSCI
NSA .briefernair-andrR nisin'g Member, House-Appropriations

      
 

 

 

(Jamar?06 NSAbriefsChairand'Vioe Chair, 5301. and? Members car-sec: Terrorist.
surveillance Program (TSP) Subcommittee (Roberts, Rockefelier, Hatch,
DeW?rie, Fei'nstein, Levin. Bond) with $80 Minority and majority Staff
Directors, Senior DirectOr foriLegisiatiVe Affairs; National Security
Counsel, House Counsel, and VP Chief of'Staff

10?Mar?06 NSA briefs Mr. Bond, Member, 880] TSP Subcommittee

13-Mar-06 NSAbriefs-Chair?, TSP Subcommittee. Members see: TSP 
subcommitteemoberts, Feinstein, andHatoh), SSCI Majority and Minority
"Staff-Directors. and SSGI Counsel at.rNSA

14?Mar-06 NSA briefs Mr. DeWine, Member, SSCE TSP Subcommittee at NSA
21aMar-06 38th Presidential Authorization signed
21~Mar~06 NSA briefs FiSCJudge Bates-

       
   

 

27??Mar?06 NSA briefs Mr. Levin, Member, SSCI TSP Subcommittee and Minority I
Staff Director at NSA

29-Mar-06 NSA briefs Chairman and Ranking Member TSP Subcommittee,
TSP Subcommittee Members (Hoekstra. Harman, MoHughr Rogers,
Thornbeny. Wilson. Davis. Holt, Cramer, Es?hoo,,and Bosweli), MaJOrity
:Generai C'ounseij Staff Member, andMinority General'Counsei

 

?rm: 5? ems-M 1.1.x; zir?w? unlit -
at 9 milk. if - iLnM ?33: swan a-iwgiy?f?i 

?ii 6'0

 

the Subcommittee; HPSCI 

. Subcommittee Roger?s} 
and General COUNSEL Stef? timber. and? MiftD?W Genera}
:GounS?iiat-xN-SAJ -- i. -

  
  
   
  

 

:NSAbriefSiRankingMember, fHPsor Members of"

?iG ?ei?Staff-?Member and Mi?n?brit Genera oeunsetatleSA



         
  

briefs Chair and RankingMember House Approp'riaticins? Committee
DefeHSerSub'Committee 

??rmware, AuthOrizatioun signed

1.??May406 Chair MembersgiSSCiiRobert's; Hageii? 
Bayh, Gha?mbiiss, LavineFeingold? Faihstein, Wyden?WEImer),
SSCJ- St?aff?Member, SSCI Majority Staff Diractor. Ehd 

17'4May406. Chair. HPSCIV Members (Hoekstra, Wilson, E?shooL
Rogers, Thorn'b'erry. Hoit, Boswell, Cra?mer, Gaitegiy,

Davie, Tiahrtl Reyes, Ruppers?berger. and Tierney), MajoritymGeneral

     
 
    
   

24.4May406 FirStBusiriesS Records Order approved by thexFISC?
NSAbriefs Ms. Feingotd. SSCE MEmber at NSA
7%Jun:06 NSAbriefe-Ra?nking Member, Senate Defense Appropriations
Subcommittee, "and Director
mum briefs?President?SPrivaoy? and CiviE Liberties Oversight Board
NSA-briefsChair, Members (Mikuis?kjh Wyden, and Hegel),
Minority?Staff Director, 8863 COunsel', and Staff?DireCto'r
15?Jun?06 NSA briefs Chair, sec: and $30! Members Feingoid;
?Bayh, Snow'el 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. Bayh, 530! Member at NSA

Gunl-OB Authorization signed

 
  

   

10?Jul-06 .NSA?briefsMs. owe, SCI Mebend 
NSAbriefs Mr. Cbambiiss, Memberat NSA

     

. 419:: Presidentiai Authorizatim signed

 

iris? r:"riie 11.! titty: i .
i3)? a" 3? wter git 

i)
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120.24N'0w06
:84D?ecma

   

2007?


 
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Us? g" Ra?. 3; .5: ?2
?wmizbriefs Presidan?t35 Privacy :a?d?GiVH ?Liberties-tOversightBoard

43rdzand fi?'aEPresIdentia! Authorii?tion 

 
  

   

    

orders bythe FISC

AG?,Ietter tabongr?e?s: br?dught'mder the F150

'NSA=b'riefS and CM: Libertiesovers?ight Board

expires

 

 

33?. 
i1



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APPEN  m.

 

 

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W)  tam-mg,me @t?gmm? .mp??s @133 ?ling
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V'Thisu-appendix lists  describes DIG ?ihv?stigation and review

"(jigsaw-t3; cbnducted ?nder the @1153 referred ritola's the STELLARWIND

Progp?m," Iglated activitites such as [the-Pen :R?gi'ster?Trap Trace 

:Qrdefrarid the.- BuSinesaRemrds' limited to activity
conducted befWeen. 410?C'tober?2001 and I7  2007. 

 W) ?9Eigmwes??a?w$

(U) Report of'anestigatibn 01? TWO Viblati'ons

 

 

. . . . 0' .  .. . . ?neiOlG issued arepovt on.
whgtipbdi?j?d t-b bathe; ?gst'tw'o violationsof?AuthoriZatiOn,
130 th. of Which were ur?iitentional,

 

 

 NSA OIG found that in .neither'rincident had NSA
parSanEI acted with intent their authority.

 

?11:69

117(0)

   
 

 

Beth incidents occurred, at. leaS?teii?n-part, because early inv'the'
 ?the terms- of the Authorization were: so closely held
operationalpersonnel-wanting under: the":
Autho?ty?were permitted to see the Authorization, .or'fits
.leetativeiprovisions. hold persons
Violating an order that they had not seen;
When theordet was tooi'eomplex to be easein committed to
memory; Accordirfigly,= :the- GIG did not fe?ommend
diaciP-linanrac?an, blit'did-teCOmmer-id that the-NBA Director
issue formal-written delegations of authority to the Signals
IntelligenceDitector'and Speci?ed subordinates so that
personnel working-z, the ?Programwould'-know ?th precise
terms-of theyAu'thorization; Management Concurred with the,
reeomt?endatioris'and made: noti?cations;

 This report Wasfsentto ssoi 01131 May 2006
anciiHPSOL 01:12 

  

-.  On
issued-a report on an investigation iota-management
breakdown that had resultEd in unintentional ?ltering
violations of the. FISC Order. The Order permitted NSA to
collect Internet metadata from communications involving

he Violations occurred because 

 

 
     
 
 
   

      . However, no
ations 4 r0 . . .e collection Of domes __1o
CommunicatiOns. collection manager discovered the?
violationson   ..  .,  The the
?ques'tiOn'able no er: ion was opi?ied; c1 ted the DIG
and the CBC. With the exception .0  3

  

 

 

 

 

     
 

 

     

 
 

GIG evaluation-e responm .
leddire?c?tly to the replacement of the Program Manager and
to  in Program management, leadership,  Chain of

?th This report wasr'sent'to 5801 on 31 May 2006-

91132. January 2008 and was redacted at the
.reqtieist of the. White'House.

 

None? ?th messages had een in en nay 
colleet been analyzed, and none had been
reported outside NSA.

This-report was sent to SSCI on 31 May 2006
and HPSCI on 2 January 2008.

(U) ENG Reviews

 

May 200:4 (U) Need for Documentation and Development of Key
Processes (ST-040024)

a  a his DIG report concluded that a continuing
de?Ciency in clear, written procedures governing the
collection, processing, and dissemination of PSP material
created undile risk of unintentional violations of the
Authorization. The report noted that Program of?cials had

(1711?1'1?1 Wmlinm-r 1n

1. 1 L: If tit/"C L. 

 

11W



1


51,,

Strangest):

13 394072004

 

f?adegptogress in addressinssome de?ciencies) but.
found that. processes had not been fully documented-in the

former. management directives, administrative policies, or

aperiatmgmanuais- 01G, recommended that
ngram {Gf??cials Writtenoperatias.

I procedures-for thezifol'low'ingik'ey prooes'ses';

a ApprOVals for contentcollection by the appropriate-
narned officials

so? Reporting-.Ofvidlationsi 0f the-Aumorityy similar to
,proeeduresf-Ifor 'd'o'cunienti 11g violations of Legal.
Compliance- and ?Mini?niizatiOn ProCed?ures?-

0? Evaluation of dual FISA. and PSP .content collection

 Systematic.identi?cation andevaluation oftelephone
numbers and Internet identi?ers for 

 corrective action Was taken in response. to the
fourcre'cbmmenda?ons.

 This report was-sent to 8301 on 31 May 0'6?ar'1d
01:12 January 200a

 Need?er 'mGreasedAtfention to SEQUI-?ity-Rela?ted

As?p'ectsaof?the. STELLA-R WIND Program is taxi-?0025)

This GIG report Weaknesses in Program
security; The Program was particularly-mtlnerable to 
exposure hecaus?eit- involved numerous organizationszinsi'cle
arid outside NSA.

While the Program Manager placed a Strong
'eniphasis' on personnel security, he did not take-a proactive
and-Strategic approaChli?to physical and operational security.
In particular, better useof the Program Seeurity Of?cer
would have helped to improve special security practices for
handling Program material and strengthen operations
security (OPSEC).

(U The Program Manager and the Associate Director
for Security and Counterintelligence concurred with the
?ndings. and implemented corrective measures. In particular,

 

 

 

 

:lth?e f?cer?wasireedfr?om other responsibilities
 to ok 'a more active-and effective role - in. Program security.
I M?iiag??iemfid I101: andli?t'a  312135377513
recommended;howevsr, straps-V taken:  management ?to
implement the original
recomm?nda?on.

report Was sentto .8801 011.31 May 2006
23nd: on ai'luar-y 2008.

eviawvof theTas?khg Processfm"

.
us. Content Collection 

   

tr   This report-identi?ed material I
iveakneSSes in the tasking and detask'ihg prooess under the

The. process to task andide'ta?skxtelephone z-nurnbers? for
Content ?ColleCtion'under' the PrOgram was" inherently fragile
because-zit was based on e?mail exchanges and Was not
automatedor mannered. 

   
      



 

apprOVed for .
colleCtiononlthe date November-2004 When. the audit
began  identi?ed the following types of- errors:

 
 
   

 involved under?collection; identi?ers Were
not put on colleCti?on quickly- enough or were not put

on. colle'ction?until the DIG discovered the errors.

  
 
 
  

 I yolved unauthorizedcollection caused by a
Wpog?faphical error.

  nv?olve'd OVer?collection; they were not
remove from collecti?On quickly enough.

record?keeping errors in: the Program?s tracking
database

 

unauthorized collection caused by a typographical error, SA
personnel did not review the collected information before
destroying it, nor did NSA issue any report based on, or

seminate, any information from the
  2 of untimely detasking. However, without a
robust  reliable collection and tracking process, NSA
increased its risk of unintentionally violating the
Authorization. .NSA also increased the-risk of missing

 
 

 



 i fee   
snowing:

 

valuable foreign intelligence; by failing; to task telephone
numbers andInternet?fidenti?ers in a timelyr manner.

(11/ INS-A DIG reocmmended that all encrs be SWif?y
that speei?c to. prevent, 
recurrences, andthat identi?ersetas'ked? fer-collection be 
receneilecl With identi?ersapproved for 
repeated every 90 days; Manage?ment?irnplemen-ted the
recommendatio,ns._

((1/wa9) This report was sent to 31May 2006-
and HPSCI on Z'January 2008 and Was redacted at the
request? of the White House.

31 May 2006  Review ofCompliance? with Authorization
Reqyire'ments. for STELLARWIND U. 3. Content Collection
(stream-0027his reportsdetermined that, based
on Pregram of?cials Were-adhering to the
terms-ofithe fAuthoriZ'a'tiOn and the Director?s delegation
thereunder; that tasking Was appropriately approved and
duly recorded under the Authorization; task-ingswats
justified as linkedvtolal-?Qa?ida or af?liates or aleQ?a?ida. The:
report remainiended improvements in record~keeping
practices.

 

W?Due to a leek of suf?cient and. reliable-data, the NSA
01G: Could: not reacha con.c1uSion on "the. taSking approval
process f0r.?tWO PSP-?related collection pregrams, The OIG
recommended that management reapoihs?ible for: the affected
programs, designxand implement a tasking and tracking
process to allOw managers to?a?udit, assess timeliness, and
Validate the sequencing of tasking; activities. Management
agreed to install automated tracking of tasking and


Wmmough the collection architecture was
designed to produce 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.

Corrective action has been completed for one-of
the two recommendations.

 

- . mt? wan alum-r;
1W4 @m Cu?: in.) LN: 

 

 

on: a  e)  



 

111/ This report-was sent t6. 380101131 
 on 2 p-Januexy 2008 and was redacted at the
.rrequest-?f-?the White. House

 1ng :i applementelReportwv?eview 
withA [Immigration Requirements 
'Content?rco?eC?On (sf-044027.01;

 

11? 2006

H. -, .1  IV?After 
the conducted further research tondetennine" 
wheth'erPro of?cials were approving content: tasking
requests based solely'on.metadajta analysis. USing the
statistical-sample in the Original no
instances" of metadiata analysis as the sole justification for
content tasking. In all 'casesteste?d, there was corroborating
evidence. to- support the. tasking- decisiOn.

   

 report was sent- to 88611 on 13 February
on 2 January 2008.

5 Sen 2006; WREPOFIT on=the Assassment Of Management
Implementing the Foreign Intelligence: I
.Semez?laince-Court Order: Telephony Business'?ecords.
(snoreoms)

.  - the telephony
metadata portion of the PSP was transierired to'FISC-O'rder'
of 

Investigation for an Ord?r Requiring the Produc?cjnofT 

     

- I . 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
4-5 days after the initiation of the activity [permitted by the
Order] assessing the adequacy of the management controls
for the processing and dissemination of US. person
information." This report was issued with the Of?ce of the
General Counsel?s concurrence as mandated by the Order.

The ?Report on the Assessmentof Management
Controls for Implementing the Foreign Intelligence Surveillance

i175

 



S?Septe'mbier 200.6, provided the details at the ?nding? of the
loamy memorandum amid made formal, to
mauggemear 

 .. 3eMainagementcommiegoverning the
pm??'SSingg and oversight-of"
telephony metadata a?nd U18. 
under the Order were adequa?tc-sand in several-impecc-
the? terms oil-the order; Hoiveizergdue; to f'the rieki
as?ecciateci With?the, collection and. proceseing 
metadatasinvolving U.S-. personiinf0rmation, 
Icc?omnended threeaddi?dnal Contrc?s regarding 
procedures, r?cnciliatibn of auditlogs, and Segregation of
d?tiee.

   

. .celt?eetion Procedures:

 

I n.   During an GIG review. proced 
ram management-discovered that washer?21in" ?g

     

   

data uici ve een suppressedfroma
the CQ lg ow. Immediately,management-blocked
the View. Further, Working the
Prayiders, Program management completed-Suppresaion of 
the suspect dataon l?Octo'ber 2006 and agreed 'to' 
implement additional procedures :to- Prevent- the Co'liectiOn. of
un'autho?zed'data. A

W?econdiiation of-Audit-Logs

WManagement-controls were not in place to
verity "that, telephone numbers approved. for querying were the
only'numbers queried. Although audit-logs documented the
queries of the arch'iVecl metadata, theiogs 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.

 

 

 

 hang: wr?wisna I   
.wa?xlml ?wither w: it

 

 

20;. Dezcazms 

 

=~ack est-segregation arouses,

 sCVen iridiVidua?ls" with the authority to, approve
queriesalso hadthe ability to conduct Queries Under-{the
order. Standard internal "Controlipraotices require that key
duties responsibilities be diVided among d?ferentzpeo'ple
to ie'du'cethe AlthoughiProgram 
management ?clorictrirreduwith ??ier finding it SCUM 11,6?:
implement the-recommendation [clue to; 'Staf??rlgiand
operationalrieeds. As  alternative, Progreun management .
agreed. toivde?ve?lop a proCess, to- 
queries of the s'eVenindividuals; This. action plan was-
Contingent on the development artisans. audit logs
recommendEd above.

(U. .COrrective action has been completed for one of
the three re comma ndati'Oris.

 report was. sentto $301 on 13i'Febrtia1jy
on 2  2008'.

i.    #111,136an 016 oversight2001-2906]
Activities? l1)

 

  20- D'ecember?QO?O'?, the. 01G issued?a report
summarizingQIG?s?overSightrof the STELLARWIND Program
after five years of implementatiOn. 

 This report was sent to 8301 on 13~February 
007 and HPSCI on 2 January 2008 and Was redacted at the

re'qilest of the White House.

Assessment of Management Controls. to
Implement the FISC?OrderAuthorizirig NSA ?to- Collect
Information Using Pen Registerand Trap and Trace
DeVices (ST-0641020)

   

W) the DIG reported that the
management contr collection,
dissemination, and data security of electronic
communications metadata and US. person information
obtained under the FISC Order authorizing 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 U38. person information,
additional controls were needed for processing and
monitOring queries made against PRTT data, decumenting

 

?1177

 

      

   

 a ET,  's '3   
'sr?09a00202 

oyefsig?ht ac?vities, and providing assual refresher. training
on the Oi?dEr.
 Corrective-action has been completed for 9f
the-smirrecommahdations'. 
  to ssoI.
and HPSCI 

5? Jo} 2007- Domestic Selector Review

   

(Stadium?)

(w The 01G conducted this review to ?determine
whether t?as?kingzjusti?cation statements were supported with-
intelligenoe-information consistent with sources cited in the.
justi?cations. The Ongidenti?ed some justi?cations
Containing errors but there was no. pattern of errors or
exaggeratiOn? of facts or intentiOnal misstatements.

 This reportwasvsent to 38011 on 2.8 anuary 2008
and HPSCI on 28: January 2008.

30Jun'e 2008' Wd?sory Report onethe Adequaoyxof I 
STELLARWIND Decompartmentation Plans? (ST-08001.3)

I,   7 At the request of the SID Program Manager for
 Special?Projects,. theOIG assessed the adeQua?cyoftNSA?s
prams torremwe data from the STELLARWIND-pqmpartmeht.
'asrau-thorized by-the DirectOr of National Intelligence; On
the'OIG reported. thatrNSA management had a
?sol'idlfo?utidation ofplanning fOtr?deeompart-mentation. In
particular, the assignment: of
supporting to provide reasonable-
assurance ofisuCcessfully removing data from, the
compartment, while- camplyi'ng with laws and
authorities. Management was also diligent in. assessing the
scope and complexity. of this unertaking 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.

   

report was not sent to SSCI or HPSCI.

 

- r?r?a 1.1:..Ibh; (mum: 
 @131 

 



?9

 

w? wasmenmu maa?im?mm

APPENMKF

 

03?
75



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av
NA

Swag-0002

 

This . page blank.

 

118(3

 




72msaeamaa?. 

I I. ?Excput-NB Orders 12333 and 1-28.63; intelligence
agehlcies Zto .r?e'p'ol't to the. PreSidenti..through me Pre?s?ident?s Intelligence Oversight
Boa-rdglac?vities? they have-reasgn to believe may?he?uhlawml .Qr contraly 'tQ
eXe?cu-tive Order Ofpresidc?tial dir?acti?e; Knowmg. that Beard members werenot
claarsd; hOWeveri, Director or Deputy Dixector reported-the 
vidlations. of .t?shePres'identi related authoritiesstouthaPresideut
through his Cour-1361, ratherathan thrbug?h the Board- Each 'zioti?cation: was
Som? ofthe noti?cations Were not the-
sub?jeet of the 016' reviews 'Cil? Evasti'gations discussed in Appendix E.

 

 

(U) Date Summaryof Notification

        
   

  

(.1), the:

 

 

 

 

 

 

 

 

 

none
?it was not

 

 

 

 

 

1181]



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2

merg- '5 near? yam}
Tl . . 

11:2. 
if?) 5sz MLM Wk!) 

 

 

 Date

 

. summary of Notl?pation

 

 

  

   
   

  

7: 1 Describes one mstaneeiof

nt-colle?etion "Of a can with both ends in the us. a
team trio have bee . until it was listened to
showed-the call as h-avin aforei

.I.

iin?dt??

 

 

 

I  Describes three incidents: The-?rst involved a

Onemdigit typoresultingin one incorrectly tasked number. The
second intiolved a number improperly tasked for metadata

analysis. The-operator discovered it almost immediatel and.
removed it from. tasking- The third involve -
numbers that'were not detaslced in a .?jnely?fashion.

 

 

1:2":Aeg32005'

  

   

 

 
 
 
 
 

 
 

 y-ve regultee in overs
efers to work in developing

 

 

   

 

 

pursuant to statute, the data?ow was
femin?at?ed Immediately upon discovery. Also, because the
improperly collected metadata had been forwarded to non?
STELLARWIND databases, the Agency removed nonwcompliant
metadata from all affected databases, including those in which
STELLARWIND data is normally stored.

 

 

 

 

e1.

 

 

of'Notlfication

 

 

  

 

  
 

beset-lb  nstanoestin which
perly tasked
d: in inadve Exit Collection of, 

 

  

 

 
   

 

  
 

ot-tnon-etarget data. me error was
I erson?nel res - onsible for

   

dieoovered??iih" Hours-
monitoring
Was eorrec dyatn
deleted;

   

 
  

 

 

 

 

     
 

  

 

op erly taekd

 

 

  
 

bf?prO.

 
 

 
   
  

PEFIY tasked 
in inadvertent collecnoniof  

tele hone. numbers res

 

 

 

  
 
   
  

 

:and- 'there'Was no em Lance-that communications"

 

:?Although noreporte were generated,

  

 I as all
end foreign without reviewin  Th
?les were deleted ,d

  

3 I A second incident was reported in
which a typographical error re ntaot chaining on a
US. telephone number with af?liation. The
telephone number was rechecked, an error was corrected.

 

 

 

 

 

 

 

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INCLUDES 1 and 2

 

 

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?L'M?aTtimmL SEQ-URIW A?mw


E0  (1339 we.  98:39,? Maryaulam

257" July 1993 -
UNITED SamT?-g BHREESTWE
Mrs-saw

     
PHGGEDUHEE ;a 
LETTER  

(U) f?sts?SID furs-Scribes palici?sisizw and aSsi?gtgisg respansabl?tias {Demure 'tha?cithe
offithai?uniged-Sta?as: Sl?iw?r Sysiem (Laminated "In '55 mannar {ha}
excung?tuamas rights 01,113; gersqn's.

        

EU) This to. make itg-s?dr-tEr? am eager to} 
c??n?umti?s'a summary .2:er laws disrecu?y- zuaa'a?unne]
who Enact; to. from, {Jr-alumni parssna;  in me-
Un?.a?ed Statesr?tusl-b?e? familial: with its cgn??an'ts. 

  Th?s" Haas-a 16. and :3st mr mnax A 
GS wh-i'ch are. daiad?q Ciugtgbar mus": ba d33?lroy'ed9 Notlr'y
if. ihis Edition IE an Gin?urgency mien:

otherwise. reguest?appmvai Iran's {mime resuming? 1mg USSiit-i.

 Reina-age 0r signs-Mrs of. ih'is document '10 q-cnt'racmrs and ?cvnsuk?ants whhuul 
the: h-S?a??agfar istpra?hibitai, Instruc?cs?ns applicable?to rahaaf?a of to canlracmraan?d
aorxsuiiaram'r?ay be" found in Ul??iD 1E3.

sh?ufsci he addraased the Gi?ce at th.

5E1

 
 

 Questions and Comments 6
Banarai CIZIUFISBE, NSTS 

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354? July 19.93

 

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at

am Sammy Taming of Automated'Enfermaizirzin Systems .

r.
A
.-

A:
1

 

Prcceasfng 

C.







..

531Cornmunicataons between Peisons in ?ha Uniied Sta?t3, Communications betwgen US. Persona  

c. CommunEcatjon-s 13-on ?ng an Officer or Empfoyee
oft?ne U.S,Governmant  . . . . 

.
. t. 


 

139

:42; 



Hi



cn r?

0'1









WE

an;


I . I.  . 
[Fill 

4m:- 

1 5.5. Radio with a Terminal in me United States- .. . .  7"
a
6.1. Retanainn 

a. Unenciph?i?a'rad Gommunfca??ng: and1.60mmunica?onsmemssary
to Ma?ntam Technicail?atasESa-SBS fnrr?i?cyptanafylmiur

Puf?p?as?Carnmunicationss?u?v'?ich Qatzid be: DiSs?mina'ted Under session?- . 

5.3.  3
SECTION . . . . . . . . . . . . . . .  8
721Pu?liclyAvailabE-elniarmatinn  .9

c. l?forrnaiion Necesgarytn understand arAcc?gs5  9

Y?s. I I  

a. a . <Irr 
. 342-1. Priv?iieged Cnmmunications and Criminal .?mtiv.11}
if.GeneralmunsarDeg-L115?DirectmfurOperaiinna . . . . . . . . . . . . . . . . . . . . .. . .. . . . . . . . . .  

. . . . . .  . . . . . .  . . . . . . . . .w 1'




2
 ,1ta\uhl A . . coon a-?nlx 

ANNEX PROCEDURES THE FOREIGN 
an

APPENDEK 1 sTmpAthm PROCEDURES FOR
was ELECTRONIC A~m

 

?11934

@j

 

.13


?3 THEFEDERALBUREM

 
ANNEX T0 
EXEHGISECQMMANH .. .  . .-  . . i
OF EQUIPMENT .  -q ..
Amalia SEAHGH AND . ANNEX .  .   . .. ..

ma?a}: v.3- OF EN THE-DPEHATEON AND USE 
AND CATHEFI EQUEPMENT (Lilum-Nrsia?tz-H, . a? . . . -..- . .4 .. . .,

HNNEX a Few new 0F ENTITIESW

MDNITD RAgia DF
SUSPEGTED 1H NAL [653 
(Issuw sep?a-ratezy' {use-Ema ra?ci?-ients19(?1.magi: irim??unni
'1 


?1 ill'hl?[Gift 
r. l?  

,thJU

GAR:

 

tr 1!
?I?ver

'l 1. -1

 

UH LL 
fish


 

 

?9933
- USSIB 1'8

LEEAL AM
tut

SEGTEGN 1 MPREFAEE

1.1. The Fourth Amendment to the Unttad States Constitution prptectazzttug.petsans anywhare
in the. astertdand att withtn-the Untted? States tram unreasonableisearcttes and seizureshy? any-petsun
agency acting on behalf of 't?heSupreme GQurt has mad that the intemehtiun at
commumcat?ton?s'ts a satamh the meaning ?ur- tha tt?t?s
tharetere. mammary thai'Signa'ls thtett?gazme oipErEt-tiuns bec'cthdugt?rt?: pursuant tr: 

whith?meat the ?ens?hn?ahtehess ragutremtent? at the. Frjuril't Amendment.

1.2., (U) tn determining whether System. aperaltot?ts. are "reasonabte."
it ?ig: he?cessaryrito bata?ca Government?s need for taratgh tntatliganga' tnfurmattmn. and {119eran
tmtarasmjr pagans, p'mtetter? by the Fourth Strikth tha?tbatanca hasco't?tsumedmueh time:
and. 330:1; by all br?anChes tat-theft United-States Gnvernmanh The.? hasutts 01" re?ected. in that?
?rgt'arfainces Heated in Bastian 2 hetaw. Together. these ra'ferehcesrequira tha n?nt?mtzatinng't??ts. person
Intosmatmnpottactad, retained tar: citssemmatect by the U333. The purpDS-?S' 0t document it":
to impltarne?nt these minim'Ezatiun-t .reqmrements.

1.3, (U). Severat themaa tun thmughout?this US-Stlj. Th5} most impartant?t?a that intalttgema 
antithepr?tact'ton a? Canstitmia?a} rightS-EIIE! not -tnCO.m;JatitJte. is hat?n?cessary?to deny legitimate foreign:
?r?eltig?aca cottect?fon or suppre?s foreign int-z-ttigence protnct tha?Fcourth Amand?ment

rights at pars-ans.

Mt, (LI) Finalt-g, these minimizattnn procedures implement the censtitutionat at
"reasonableness" in? gifting dirtatasnt. categories or? in?ividuats and ahtittes- di?e'rant?lavatsct gimme-titan. The's?a
lawn-313' range [ram the Fromm-Em accorded 1.1.3- cittzattsandipermanant resident attenacin the United.
States. t0 re?tting. tn {maign diptomatsimthe LLS. Thaw-differences re?ect-yet Emma-r main theme.
?of these pracecturas. that is. that the focus at alt i'nretgn operations'ia an thratgn entities Ei?td
carsohs.

350mm 2 REFERENCES

1!
Lil


U:

to


44.53?
2.:

ND. 95*511?.

 

 rar? r? HEB

- .   . ca") *9 (3 

L?ssmla
?lmy 1993.

c, 53%;1; ?Activities [330? Comments mat, Aifect' U18. Pagans,?
dated 2.541er 19.38. 

mamas" eham?ea:
?Parsons: dat?dtzos?pt?ambgr 1990, 

:sEcTiew-i-a 

3,14? (U)  poi'icy of?ng Ea FOREIGN 
The U333 from or about US. PIE-1318011530: persons ar
entities in the ?184 Excagt? 235' ?set. forth in this If the USES Inadvertanily such
commgnina?anm it wan process. retain anddi?agmihata them only in actiotdan-cea ?With?thisUSSl?l

COLLECTION

 

E-Vith thalapprmal OHhaUnit?t? Slams Foreignmiauz?gence Sunreiilance-Court Und?ir tha
committing a mlmed i'n 01:11}: 

b. wnn. thaappmvaj Inf {HQ?Anumey Genera: oi {ha-United States". it:

Tha direCEedxagains? the foll?awing;

a

in cr?from?US, PERSONSouisMa-the LINED, smTEE-s? Ur

 

(t3) Gammunicatiens 'cshz'c? are not to from but; m?'raty about US. PERSONS
[wherever 

The person an AGENT OF A POWER, and

(33 The 01' aha COLLEGTIGN is {a amuira sfgni?zant FOREIGN 
icifgrmaiion.

(3. mm 1hr: appraval a! the Director, Na?cnat Sacuriiy Central Security Sewing
EEC) long as aha ?ared not be. aggro-vet! by" the Furse?ign 'E?nm?fig?nca
Suwailfama ?30:th er the Attorney General, and

THE: parsnn has CONSENTED lo the. by executing one of the:
CONSENT mun-a: contained in Annex H. 

 

TRIS) arr-war- l?f?C" r? I . . 
HIV DILVV Jail??9? 

 

   
 


ID




 

Ussm 18
2? .Iuii'y 19.93
Gapitatizrzd wards i?n?SactiDns :3 through 9 arm?da?tined tarms in Erection 9.

{at tab-a hetd captive By a FUREIGN or g:qu
Engaged in 

 

land that tha COLLECT-MN tn accordancia with Annw
hm?
 (4) The is; directed against,?   ?between a ?1.55.
PERSDN in tha UNITED STATES and a fareign entity outside} .t UNITED STAVES. the iS? that
foreign entity. and the COLLECTION in accmdancatwith Anna): K, 

   

  
      
    
   

 
  

 (5) Technical davices-{ii
tim'itgacqutghion by the to comm tat-nations- ta tar tram the: FA-
hythe .IIL 
th?? is dimmed agairiist was: ant-i 
Tris-.andtnetmutn otthe 



are amp!
?5 in



   

(33 f1 non?U5. PEHSQN iuwted- outside that 

(ti) appmvats maniac! tag-the under these? provisions wit! ha
retainedin the?Oth?ce Gt Gangr?ai't?aunsal to: rat/few by the Attornay 

ct. Emarg?ancy Situatiana,

I In emergang'y situatinm, may authorize the 0t
tat-from. night-gut a US. PERSON who is hutslde tha UNITED STATES when sacuring the prim
approve? of the. Garrarai isnot practicai basause:

The time regatta-sci. to obtain such approval wowtd result in that loss of significant
FOREIGN and 'aa'auld cause: substantiai'harm to the: national security.

A Mt?; or physical safety is reasonabty beiieva?acl to be. in in-ernediatg
dangen

The physical security at a defeat-139 instaiia?on at government property is
reasnnahty heiiev-sd to he in immediate tiger.

th those cases where the authorizes emergency 
except to: actions taken under paragraph ahc?wa. shalt ?nd that them. is pra?babi?rs:
cause that the TARGET meats 086 of the {allowing criteria:

A perm-:1 who. tor Cr on: behati at a is engaged in cland?s-tt?a
activities, covert activities intended try ariact the potitical or governmental princess},

 



 


?yr 'x   ?1  k?mwm

usst 13 
'21 1993

sabomga; at INTERNATIONAL in preparati'en- {or 
a'ciivill?sg wilh?, cm k??owir?tgfy alejs; and 'aIinets 3 p??rson ang?g?sng Such
amiv?ie's;

A person wht: 'iS-an of?cer or empluyae of a 

A-person; for, or pursuant teathadirectian ?ul. - a' FORElesl
The-mare fast-ma: aperson?s furthzigrlihqafms? of a 
his! an?ugh? to: bring, that pet??s?n Undetth'is aba?enti'eviden?? tha't't'nejperso?ri? is'taki?ng?dfnac?nn
trummractingin Rowling Concert with. 

or?otha?r entity. thali'ismvned at? confrdiled dirvzcily 0r i?dfrecity
by, PBWEH. 

3(a) 8+ pets-on in contact W?h; Qr ELL-ting In coiiaboracicn:With, an intalgiggn'ca?r 3:2 curity
savanna at a foreign power far the-purpose ofpron?dir?lg access .19 information or mazeriai gia$SEfiw by the
Umtad Stm-r-?s whichtsuchper?e? has: access.

{33' In ?mas Wham ?En?ergen'?y Is aUthQrized, that. steps sham ma.
lalsan: . 

The Ganuarali?saunt?a?l wiil- be noti?ed Imm?t?iateiy ihat the has
Starzcd;

. ?The Genafal Cmu?sal will-initiate imm?diata in obta?n iRE'torna}; General
[he if Attorn?y General approvals {was hams. may
ha"!erminatedg {he .?tidr?n?y? Ge?e'r?j agp?min?s SE maxi buntinue for
[he pa?cd Spaciffgd-ln ?ihe spam-ml. 

6.. Annual ice the mwrney General are rcaql?rad {or ?riser
paragraphg 4, and Ha?pG?Si?la analytic Giff-sag: wriiF grovid?? SUCE wands Ehrbugh? the DEqu
?iracaorffur. arm the General-Counsel ta th?: far to the Extreme}
Genera; Liv; 31-.Januar3mf each when . 

 

  
   

43. .l?kz?rqgismcn of LLB- PERSON Information. miormaljan to, from c-r abcu: LLS.
acquired as a reswl?. directed against appropriaie FOREEGH
TARGETS. may be retainer} and prnceased Er?: accordancaw?h Section and Section :5 


 

 

:l
tar-ma :Amr'mrangll llf?r"! arms?:
Ell EDILWWI WHWINKFJ Li?s? - 

 

 

SEC, . n: :3 @m a 
.13"
f2"? Jufy 1993
4.4"  Mimi TAHGETS- UNITED SWATES.

a. in; thecammuniuations anunresidenivatienmcatgd abroad are and the.
Ia'arns .tnatthaindividuazrha?s entered canzinuemr a paripd

off}! hemp pfo?d?d?t??at the 883$ aduEs'?d immediat?iy?anciz.

(-1) -lmmediai&e?f?ns amfnitrated to. obtain, pr

 
 

Adetermma?qn is?mada Within lha? Ensurpenod-?ma: th

b, If Atiomey-Generai appm?ixal is obtained. the COLLECTION may continue 'EOr'the tangth my!
Emexsliae'ti?pd [niha appruvai. I

 
 
 
 
  
  
    

c, If i! {S'd?eterminamhc .. I CI-DLLEGTEOM may Seminar:

at the discretion OI thevup?eratiorml'garment.

t1?? . arisrmz'obiained 
hams, GULLEGT L15th terrain?. Attorney Ganmai is

the. 'ih?livldual'iS?vES'iheUNi

4.5.  U-.s. TARGETS. Entering the 

Ali communiue?uns about a FERSGN :Elocuatedptrag?fde Hm UNWEQ SEMEZE
are being QGLLEQTED unda?r Niamey General appr?p'val ?dascsmed in; S?atz'tlpn 44.543.? ahpxra, the
GOLLEDTIDN must-stop teams that meindiviclu?al has entered {he UNITED 

13, Wh?e?lhe indi?dual is in COLLECTION may be resumed only mm the
approva-i of Foreign lnt?liigance sumai?anca Court-Jag described-in Annex 

  
 
 


must ba submitted! ihrougk?
tar-4000' a thaleeneral. Gmmsel to map

4.7,  Dire?iion Finding. Use- drawing finding $01313? to determine the; ism-[inn at a
{ransn'ii?a? celled outside-6f the mnstimta ELECTRONIC SU RVEELLANGE. or
even if directed at tran?mifters beir?ev?rd to he by UP. PEREOIIJS, Unless COL-LESTEON
u-z?uthe commanicat?ipns is oahar'wis?; authn-rize-d under these precedurES.? me cnm?nts of communica?nns 
which a U3. PERSON Es-a party mnnitared inthe. Course of direction ?nding may on}? be used to Idemify the
lrar?nsminer.

 Dishes: Sign als. Dis?eas signals may be int-rantion ally whacked, prep-?3559i retained, and

dissaminatpd wishout regard to the; restrictions con?ainad in this USSID.

4.9. (U) CCIMSEC and Security Testing 0! Aulomated information Systems, Monitoring
for cammun?pa?nns Security purposes must be conducted with the Consent 011113 person being monitored
and in accordance w?ithlhia proceduresestahlishe? in National and Inf?rmatian Systems
Security [Elective 600. C'omm?un?cmions Secu?iy P4?0?iiOt'i?Q. dated 10 Apr?l 39.3.3.0. M-nnitoaang tar

2m

 

 

 

teams. I
:27 Jilly 199.3

communicationssecurity- purposes is not goverhed by, this? intrusive Security testing to?aeseae
security. ivlutrterebitllies-tn Hut-om atecl information Striaterns 'tilteVIlSe tenet goueirneld?ityy this 

5 PROCESSING

5.5L Processing,- 

When Intendedtto the-

because a communicatiorlte'enciphered, rather than on the he ate? 
Teot?th'ett the Communication mentions airilartiouter .thetottot'rihg totes-apply:

a, No SELECT lOt-t TEFtil?at that is reasonably tl

4'  
rrlay tensed-unless three: 1.: reason a
?alnectiby Use'oi euoh TERM.

  
 

   
 

- 

   
   

    

    

  

IMTFELLIG ENC-7E mutt-oer obt

 1N0 that has resigned in the or a significant number of
cortirhuhioatione to or from such persons or ent?i tea may be used unlesa there is reason. to believe: that
FOREIGN. ENGEtt-itt be. obtained.

I  e. that have resulted or are- .reeSGnabty: likely to result in the.
communications-tom trer-rl ?such persons or-emitlesfsheii be: deeighetl to-d?eieatrto the
eleetesr extent practicable-under the at those commun'tcations-which
do het'cohtatn ENC-E.

.E.  Annuat?evienvhy DUO.



a. Air: reams that are likely to resutt in the, of
communications to or a LLB. PERSON or terms that have a signi?cant
number ot-suct'l shallot; hythe DDCJ 

b. The purpoeeof the review shall bate determine ,tolbietieve; that.
will be obtained. wilt-continuetotae obtained. by the use of 
?ft-:3 r. MS.

c. A copy or" the results or the review will be. provided to the inspector Genera! and the General
Goun'set..

  interceptedlrtateriat. collected to?; the
USES may LEE tort-ranted as intercepted to MESA. intermediate processing facilities, and collaborating centers.

5.4.  i-terttoreigh Cornmuntoatiohe.

e, Corlln'ruraieations between persons tr: the STATES. Private rao?lo communications
sole-t1; between person}; in the UNITED inadvertently intercepted during the of
will be destroyed unless the Attorney General determines that the
contents indicate a threat oi death or serious oodt?-y harm to any person.

 

t3
?r I ?xt 3' 
gee Tee oer: Ltr' t. .et??euht

 

 

 

 

 

USSID 1'3:
haly'199'3'

b. Cam?munlcatiuns; b??twaen .U-.3-.. 301%); between LLB.

PERSONS wllil beIGm:

 
CDLLEGIIDEEOT passim?;

exc?pt ?asz'pro'vided 1nnp?ragfap-?? 

Ngtwithsranding tha preceding pm?s?q?p?ng Signal? and
and l?Ch?nical. may be? "extracted and
rcommunicali-nnsif necessary to: 

Esta?bliSh or maintai'n i?ia?rc'ept?, or
{In} Minimum: unwanmd {nt?rceph a:
Support Aapera??ons reia'ti?d 

Communications involving an Officer 0f the. Us. quvemmem.
to any pm ur empiuyga'cfi?j angst'atenr' may 
willnotxng {me ptec5,'lnadver1lent INTERCEFTEQNSM sumacn1munica?gns,Lincladin 9:114:32-
begszenwidreign o?iciais?) wil! be '1?reated as?lhd'rcatec??nuparagraphs amv?a.

NQE?NEEhstanu'Ehg the of paragraphs 54h. and (2.. ma
may?waiveihe ?destructiOn requiremem-mr internatinn'al hike."
aiiaj Ehariu'ifin'x?ixlng: 

an
Evidence. {at acrima Dr threat ofo?eath or'ge?rigus?box??y? harm-1?0 any er

 7 (31 Anama?a?s that reveal a patenti? vamalrabi?iiy. to as; communiaa?ons gammy;
forfahgich ihafxttorn'ey Genera-i- cur DIR x-gvatver'is saught Sh?culd he. remarried
t?o Mm: FEEL 

 W?adio Communications w?h a Termina: In 915: 

3. racist: cammurticaiians' shat :pass?cwer channels with a tarrninat-cin STATES
must bapmc?nTSS'ed :hmugh-a Computar scan dicziqnary or?simiiar? .davice may; thoge communica?o?s occur.
over channels used excluaively by at FOREIGN Pov??.

11 - merchannam w?szhaterminal
3? "1'3 UNITED communications, may be processed
without the use of a compuxer scan dicticsnazy? or sim'ilardmrice if newsgaw date mine whether a channel
contains cummunication-s cf FOREIGN INTELLIGENCE interast wi'?ch MBA may wish tqcouesi. Such

proces?ing may mat Exceed two hours without me spgc??iu mirar wr?i?enappmva] of ihe DUO any evar?.

  

Shall be limited to this min?mum amount of aima necessary to datermi?e the nature of hatremunica?ons cm the

cha?ng! and {hr-3 amount-0f such cammuniaa?nns' that, inc-Eudr: Erica  is
determined that ma channe? contains 5U??c?ent communications; (if FOREIGN. INTELUGENGE inlerastm

2m

 

ZEN-I

- I. ,?rw :5 
{Ti \l?viit'Hgty?vt?kaF?VqIJ' Ui\t

Lester-=3
:27 Jul?11993

warrant GOLLEGTICIN and eprnitaIIon-to prodnee INTELLIGENCE. GompUIer sce?n dictinnery
er- eimil'ep (levies, muet' he used for. additional prose ssing.

c. Grantee cil allDDO Written approvals made-pursuant It) 5;5.b. must be provided Lethe General
Games! and the Inspector General.

6w RETENTION

Retention ot'Communicettc-neto. from 'or emu-we. 

e. Except as antennae previded in Annex A. Appendix 1 Section 4, Communiea'?ons It:l from.
tir PERSONS that are intercepted by the USES met;r be retained in their original ortrenecri'hed
irarm Only as toilet-re:

t1} Unenaiphe?re? commentealinn?enel thought to Contaln secret meaning may be retain ed
inrlive-jgeere the DDS-determinee in writing: (met fer a longer perlnd Is requirecl'tn respond
in FOREIGN renttir'e'rnenls.

Corn mtt-nicetiens ne-ieesjaryte maintain technical cwptenely?e Or'lraf?e
analytic: nutmeg-maybe retained?ifnr  parted suf?cient te?allowatho?roeg? expln'rtati'on' ?and to permit 
ter- d?atra teat erey or are ?reesonebty'believeditikeiyxto became, relevant to current ior-lutuw 
INTELLIGENCE r'enui'remeril. Sul?elem may very wi?rh'thenelure'df the exploitation and me)t corzeiet
nil-any parted tal'limte during-I'Jhich the-"technical data hese?is subject to. oral; use l'a?l?JE;
Is ntit necessary to merinlainzng technical it should bade elect or renegade?
a generic: term when practicable.

bi Cemmuni?cetions witlct?i could be disseminaterl. under Section below without
elimination nl references to U.S.. may be retainer! In their originator transcribed form.

etc-seen. Access tn raw {rattle storage systems which contain Identities of U5,
must be limited In pmn?mtinn peremme?l.

SECTION '7 - DISSEMINATION

F31.  Focus rii SIGINT All SIGINT report's will be Written so 33 It: Incuersole?ly on
the activities of I nreigrl entities and pensnne and their agente. Extent as provided In Section 7.2.. FOREIGN
ininrrnelion' cementing U3. PERSONS muel tie diesemineted in a manner which does net
Identity the LLB. PERSON. Generic: or general terms at phrases must be substituted for the identity leg-u
the speci?c name ml a U3. CORPORATION or  thespect??c name ole U.S.
Files containing the identities of U5. pereons deleted from SIGN-5T regions 'will he maintained tar
a maximum perind at one year and any requests from SIGINT customers for such identities should be referred
to P02.

722-- 
Idenl?IfiCatierl cat a LLS.

?legeminatinn of US. PERSON Identities. reports may 


lb
only one DI the {allowing conditions is met and a determination Be made

 

 

-u .. . t.  
Iii}? t;th tat LW .: *ttosut?HN i wit-HQ}; @ue.

 

ussm I
:27 1993



by the appropriate appmvata?th??w head far the'i'dentil'g- far hi's-
?nt?cta?t- duties:

at. The-13,5. PERSON dt535n1inat?onqt unicatton?s of, mam at,

him critterandhas executed ussm', or

7 t3). 
intotmat'io?n avaitabta-to-thagenerat or

c. at the US. PER-SSH lsanecessary tn?und'erstandima INTELHGENCE
(if assasfs'its importance. The fhliavn?ng. nonexctus?ivh list contains ammpleg of the type cat-
thatlrneet this standau'd: 

(it FDREIGN AGENT OF PEBWER The. intarma?ttnn indicate-s
th? at: the Utst PERSON ts an FonEtGh 

Unauthnrizad Classiitied' Intarn?t-atthn. The information indicates that the.
PERSQM may ba-Bngagad in ?1'3 0f ntasst?ed informattdn;

Narcctics Asthma Thhul?nfmr?m?athn Indigatfes that tha-in?divtdual may he.
engagadin international! hat-cuties trattiuktng'acmittes. {See annex t! hf this USSID tor 

in 

I tat} criminal Activityjhe intnr'rna?tisnislevtdenca'that the individual:er be [mowed tn 3
crime that has been; is being, or is; about to be Committed. p'r?dvid?d that th?a'dfsseminati?on Is for taw
eninrcemetnt purposes.

(tie) tnte'ltigence TARGET. Thaintoymatiun the. US. PERSON may b-e- the
TAHGEF 0f ?ntettfgance a-zztiuttihsm POWER,

{at Threat tn Satalgh The information indicatamhat the identity at that U13.  

pertinent to aposstbie threat to the safety at any pmson or organtzation, including tho-Se who are 

Victims of .husmgea at organiz?tibrta. Renaming UnitS shall idhntityta F02
any ripor?t containing-{ha nf a'Utst PERSON {Emmet}. under this subsection (5L maid report-mg 
P02 shuutd be'in the mm of a GRITEQOMM massage m0} and inctuda the report data?timergrnup
(ENG), ptn?datct serial number andr'the reasnn {or inctustgn hf the Us? PERSONE identity.

S?fTi?Jl? .E?xanuti'rta?ra Of?cials. The: identity Is. that cit-a Banter n?mt?Et of the: Executive
Eranch of the U3. In this 0339 only? the nffisiat's title?wttl be disseminated. Damestih potting;
or personal trttormaticn on. such individuats wit! b? netthm dis'seminatad that retained.

7.3-.  Approval Authorities. Approvat aulhnrities for the Intense of identities at US, persona
under Section ?fare as 

a. must approve titssarntn-ation of:

The identities 0: any annator, congressman. h?icar. or ampth hf the Legislative
Brarmh of tha? US. Government2?5

  ?1 r? Mural 5m arms-?mu
$343 QEQRET HC p?zmma Hs?rr'ihw 1w.) um

USSHD 1:5
2'7Jrjl3' 191)}

(2). The mm?: anyparsrm briawaniercement purpose;

.irrerdumts and?NSA Headquarters?remenls. m2 are
authoriZad [a disafer?r?r'rate th? 'ida?r'r?iie?s 0'1? 

 The fuming-'35 ruminant ?tD' {he?s-aietyj-Of any parser? Criarganiza'tiom
C2) The identityis ?th Ufa sEnior/b?icial?cjf ma Ex?mrivaxaranqh?.?

(-3) The LLB- undar paragraph 742.73?. above.

DDO and Designees;

(I) in 83 Qihar Ursa idantities maybar?leased cmin with me prfur appr?aval
of the ?33qu Girectdr for-Operations, ma Maisrant?apury Direcmr?ricr Onerations?. the thef. P82. she
Or. 'in their absence, the Sani?ur Oparationa Or?ticerrof {ha NariomliSi?lNT Ugera?ona
?er';1r2r. Tim DEG AGED shall reviawall  Euj?enritiasrelea's ed by dggignee-E: as soon? as;pracii13bie
??it?f thar?almse is made..

For law enforcement purpqsas irrvni'ving narcotics related Eninrmatinn, DIRNSA has
grarrtz??d tathe 1?}ij aulhority to disseminal?zr Ugaiidentiriasm Thisjauthgriiy man,? no: he? {urthar (relegated.

14-. Peregarj? and ZCrimr?nai Agriirityr All proposed?disseminations or
i?nlorrnazign U3. PEESDM privileged communications; rag? art?rne'yrcrient. and.
35:1: infarmri?im concerning criminal ackiwiria? orc?mina! the STATES must
123a r?vi?wrad by this Office 01': General Scum-aliprinr- tor?diss??r?nmati?n.

Th5. ImperEr ?asem-inmlan. truer
Enside'nt. ?0 PEI-2 within  ?gure-sf discovery crime error.
.SEGTION 8 
5.1.r {Ur Genera.
"-th inSch-taf General shall:

 Currduct reguiar Enapect?ons and perform grammes! ovars?rghi of activities to ensure
with this 

c. Repitrt ta {he annuaii'," by 31 Daimler. cantarning cunrpiiarma
w?h this; 

1:1, Regan. quarrerl'f with ihe SENSE-CHESS and General Counse! {a the President?s
fnieifigen?e Ovamight Board 1hrough the Assisrant 10 the. Secraiary of Defer?rse? (intelligence Oversight].

  
    
 

        

. .. 1.
?rm" 1
:1
ID
rar-mEWTH 
 x. mer Winn

 



 

hem-w 
31? July 1:993

532;. iLUyGeherat Chuneal. Thee-eager Caunaet?ehaii':
thd?a-tegat ahvfae armaments activities.

Requestajthr'tegel advicegn anybajslpecjt af'th "sent 10' human ar
by; teteghahe'g?sw'mat .r at. 

       
 

h. Prepareand 
regtreat'sttarhttarn ey'G-enerat'appmvata raqtitre?d?by theaepracjetturaa.

c. Advtaa the inspector Generat? in inspections. and-oversight at ahtivittes?.

at Review and eagese :Ior legat'tmpfieetians as requested by the Deputy

Ditetitar.? Inspectar Generator Kay Carneonents Chief. att newmajar requirements- and-internals?generated
US eb?tiuttiEa-

Anthea USSB?aersannet (ti-new legisla?ttic?rn and qaaevtaw that may; aliect'USES tfn'setans-r.
{thistle rte, aperattans. eCth-?tiaetar practices.

aspen as requireh tn the Genera} Presidentis lnteiltgen'ce Oversight Board
and provide anda?tfeeted agency-atamentst

. 7 9.. Process raga-eats arty intetligence component'tar authartty tease Signet-ta as.
heacribe?d in Prdge??ure?. peribda-i? excess 0'2 90? days in the datretapmartt.? test.
art-calibration at SURVEILLJINCE equipment and other equipment that can intertzayt
mr'nm'u'riitzatians.

3,3; (Ll: 'Daputy'Dtrecter for Operatfaha 
The BBQ ahz?i?:

at. E?'SlJl?e that alt SIGIm-prcr?cctien pereannet underwear! and maintain (thigh degree at
awarenesaand senSi?vity lo the requirements;- at" this. 

h. ftp-ply the?p-rawa?ans at this USSED 1r.) air SiGtht-?f graduation activ?at?tea. The DUO start facet:
{3'0th {er USSLD TE. matters is P02 (use DDE int-AG}.

e, Concith necessary reviews a! SIGINT praduczion eativifte-S and practises to ensure
consistency wEth this USSID.

Ensure that all new meta-t requirements traded on the ar internat?y generate-(i activities
arecansiderad Ear review by the Gerterat Gaunset. At! activities-3 that raise questions at Paw or the prep-er
interpret-mien at this USSID must be reviewed by the Ganerat Gaunsat prior to acceptance or execution.

8A. (Ll-f1 hit? Etementa at the U355. Alt elements a! the sheik

a, Impte'ment-thts directive updmeceipt.

Prepare new grocedures or amend'or suraptement existing procedures r53 requhed ta ensure
adherence ta this A cap; at such shat! he forwarded to satin: PM.

 

Ll

.4 

- I


27 

2c. Immediater Inform tha-DDO?of any-tasking or instructions:Ihso'appear to requiro aoIlc-no'a?
va?rlanoow?h Ibis . .

at. Porocnptiy I-nSpector amoral and consultpvo?nh General cognate;
on a? ao?vi??s-Ihat m??y?raisea question ?of compliance with this 

SECTION 9 DEFINITIONS

AGENT OF A FQREIGN POWER means:
 Anypers?onl other?thana USS. PERSON. who:

Ions. in the as an oI?oer or? em'p?l'oyeeof FDVJER.DFE13
1?1- rnornoon'of 3 your: engorged In or aorivitioajn preparationihorofor: or

I23 ?A'o?zs?ior. 'or-on behalf of, a FOREIGN that engages in'cIandestIne? 
S?I'A?rasxoontran; to tho InterasIsoI Ifne UNITE. 9? ?1331535-
or Euch?oerson's proso?coTome-UNITED engageizn such 
I'nstho UI-IITEDISTATESI or'whan soon person knowineg aids-,sor goats any poroon in the Conductsoi such
EcI'IvI'II'ea-or with any-person toengago In Such or

o. us. PEQSGM. who:

I<nm??ngw angagos in glands-Mina oron?bohai?f co.
.3 FOREIGN which aoIIvitiao invoinre. or may Involve. ?a or tho ori?rnioaI-saatotos "oi" Ina
UNITED STATES: or.

I12 Pursuantto?tho ditacIion-ofao or POIAJE 
in any otneIr-olandos?ne ?activi?'as {on oroo behal?fofu. soon FORESGI-I
?aowi?os Involve or InvoIve. a vIo?IotIo?n oa??h? coming: statutos DI the UNITED
STATES: olr

I3) Knou'nngiy engagos?in sabotage o: that
are in preparation therefor,.Ior or on benau of a. FOREIGN or

Knowineg aids or any person in the? conduct of in paragraphs-I
9.13.6} Ihrough or knowineg oonspires wiIn arty norson to engage in those 

c; For purposes other than {ha conduct of ELECTRONIC SURVEILLANCE asde?ned by
Ina Foreign S?uweii?anoe Act {see annex Iha A FOREIGN .atso-
means: any oarson. Including Us. PERSONS outside the. UNITED STATES, who are of?cero or? employees
of a FOREIGN or who act for or Immuant to. the direction of a FOREIGN POWER. or
who are In contact mm or. acting ?n with an InIoII'Igenoo or security service ot a FORE GN
for Ina p-urooso of providing. am: 453 I0 In?ornlation or rnotorIoI'oIossEIIed. by 
Go's-ammont, and to which the person how: has had more 'Iact?that?a' person's ao Ivisiosmay
tanef'ii' or runner Izho aims of a FOREIGN POWER Is not to bring {ha-t oarson Under Il'lI3. provI?s'on,

 

2 (08

 

 

ussm IS
July 1993.

a?sent evIde?nc'e that the parson 'Is-tak'ing direction from or a?tfngafn I?inanng? :concerl-wiih: a FOREIGN


1 COLLECTION- means IntentionaI or" SELECITIOII of identi?ed nanpublic?
forisubse?qug?tI-prbeessmg gimme: r-zponmgm raIenI?idn as; 

9:3; means a Sander-or Intended recipient 

 35%; ABOUT A LLS. PERSON are these in th-zh the. US. PERSON I3
idem??te In'Ih?cg?manc??nmA U.S. PERSON Is?dentifi?e? when Iha- person?s name. un?que iitI'a. game-35'.
or- ?cher-pe'rsanaj I3 revag-Ied'in in ma cantext Of? agttviII?es conductedrby Ihai
_pefsan'ef1a'ct?1ities candu?te?dby timers and reiatedta Iha'tiperson. A mere reIErerICa td a pro?uct by?tr'and
name Grimanufacturer'g n-ame? "Boeing ?5110!- an'?demi?ca?un oi person.

(LII CONSENT, for SIOINT OWE-USES, means an agreemant?bv a Par-543nm organization: Iapar?rrzii
IthS 33 I9 Iiakelpa?lcufgr ac?ojns that. af?rm the parser] Dr organization. An: agr?am??ntby 
wIIh aha Nationai Securfinyi Agency- Ia peimit- COLLECTION or InformaIfun shall be dam-axed valid CONS EISIT
i?giyen for; be?a? or such organizallanby an?a?i?c?nai or the Oanaral Gaun?ssIr
N?iid?aI SEcU?t?y Agency, Id have actual-rm apparent. authoriiy-ito make suc?n' an agreemem.

9:3, purpnses: of Ibis entities I?egaIIy {a?ognizac133 separate;

who Iarr?ecf, awn. or rum?em. CORPORATIONS have Ihe nationatily Ihelnah?m scat-2-

undar a?vhdS?'I?aW?? they weraiformedk Thus. CORPORATIONS In?otpaa?aied'mdar LIN 
or SIate-Iaw are  PERSONS.

9.7. (U) ELECTRONIC SURVEILLANCE means:

a, mm 0333 m? an electmnic- camnmruirmsicmr the achII-sgiticm of a nonpubllr; communicamn
ef?cimnlc means 5119,. CONSENT- a person who Is a party to {he 

In the-Case of a nap electronic cnmmunicatiun, HTS-acquisilicn 0' I a nonpu?hiic 
by eta-strum: m?answithuut the CONSENT a: a person who is-visny'presenft at th? place or commun?c?ltion.

The ?rm ELEGTFIOHIC ELLEN EILLANGE doe-3 noI mfg-India the use of radio direction ?nding

equipment snier-tu determine the Inca?on of a Iransrnilt'ar.

9.8. COMMUNIGMIOM means: a cam'munIc-ation that has at [9351 cm

COMMUNICANT nuIsida of the UNITED or that is entirely among FOREIGN POWERS or between
a PO REIGN POWER and' G-I??iciais- of a. FOREIGN POWER, huI times not Include ImmE-?nun?ica?ions Interceuted
by ELECTRONIC SURVEILLANCE dErecied at premEses in the UN ITEO STATES used ptedominanIIy for
residanIIal purpnses.

9.9. FOREIGN INTELLIGENCE rnaana relating to ihe capabilities. and
activities DI FOREIGN POWERS. organiza?gnm or parsow, and for purpqses of this. USSIO In-cIudas noih
posiziva FOREIGN INTELLIGENOE and 

9.10. (U) FOREIGN POWER means:

 

I Wlt'n An??wd ln Hwy."
gay-am 53.77.31.333: 1.: nu: an lI-?Mi



.r 

in
?53

fussm 1.5-
27 1:31;} 1993-

a. A warm gmremment many. {hereon renegniz'a?d by the. UNITED
STATES.

by. a farsign nation or nations. rmtanaiantfaJIycompoaad 


c. An entity?that Ts spengy' ed, by a foreign gavemr?nent 0r governmenss tr: be

?diraaiedE?and Contmilad lay-Sum foreign governmental? governments,_

d. A groug}. engaged in TERRORISM or autivitle? in prepar?linn the'rijr;

e. A foreign~based politica? Organizationg not substantiaily composed of STATES


Mani?? ihat ES Wet?th and continued by a fara?gn government or- gavernmta'ata

9.11, {?in the by 3113 USES through means a
is- n01 an 'lntende?dwpa?yr and; the of the Cuntenaa of that
into an intelligith farm, but does irmludia the dis?lay, of Sig?ais on visuai dismay dances
permi: {ha-examination Of the technical.Characteris?m of mar $ignals-wiihout .tafar?enca :14: mn-
.in?or'mataon?ccnt'ent car-tiara! by me S?g?aL 

 12;- .th INTERNATIONAL means activities that;
a? lnvn?lfs? violant' aces-or acts dangemus to human me. that are a u'a?uiation ninthacrimlnalram:
Cd" of?ng 54.3124 or that .wnui?d ha a: Crimi?af "if an mmittad wiihin she jurisdic inn
[he c-r any'Sl'ata, and
2:1 Appear to ma intendeL-?z:
in iniimt?date ar'cnarca a Civilian p?p'ulation.
En immense-ms: pansy as a gnvammant by intimidauon 0r coercien. or
(13; to affect the, cannuct {if a gnvern?r?nent by asga?ssir?iatfcn or kidnapping. and
a. 933m totally cuisine the UNITED o: boundaries in terms of (hi:

meansby which they ace auscumg??ished, the parat?Jns?z?ney appear intended In- ceerna or lnti?n'?date; mr rm;
Inca-{e in which 111 air perpenamrs operaie or seek Haylum.

9.13. (U1 AVAILABLE means Information that has ham publi?shac or
breadcam iar general public consumption is avgiiabie on request ma membar of ihe genera: g?Jub?c, has been
seen or heard by 3 Casual obsewer. car is made. ava?able at a meeting Open in the genesas puma].

 
 
    

a? Li 7. rn'ss'Can gui?ie'foc
for further pru-cessing.

 


 In a . 5 .?a?xl ,t?rss?? AWL I?lm 
Mg}? by 5 CW HE) mfg! W13 v4: ?vita, 'ivl wrap} .

 

 

teem tie 
Jury 1993.

aft-st TERM means the campusite terms used?to effect nineteen
communicatinne for the; purpese oi it cemprisee the entirete?rm

tar-series; 10f?: term?sen-usech but not any segregehte-term? contained therein; .tt and


9.1.5; (U) Te?neettne: See 

{Utt- STATES, when used immune; theses District at

Gnlumht??. Puerto Rich; Ghent, American Samoa. the end,
eny?other or which] the exercises. Sovereignty;

9.18", PERSON:
at it Citizen at 
tr. An aiien tat-etultg? admitted for permanent reetrtence' in that-J STATES,

Unincergnratad and? number at the m-embetegnf winch
cenetittute 3.13;" b. above. or

rt; CORPORATIONS tncerperetett in the inet?uding; US, ?ag

nungmrerinmenteiaimr?li er veesete but nut inc?tuding these which are openly acknewtengee' ha} 
fetetgn government-er governments to he dire-med end convened hy-them.

e. The teilowmg guideitrtes-appty In determtn'tng-whather a .pe?tson?isa LJJEE. PERSGM:
(it A, person known te heettrrentiy in the Urtitad?tetes will be .lleai'?itfas HUS. 

unte that fie-Kenn is Identified as an etien wholhaendt been admit-tee chr'permenent residence
or it thevjjaeture at the 912(50an cnmmunieetien?s indict-51in the: cements. 9F :JI-teUmstenCee ei shah

communications give rise to a reaeonebie baited that .suehperson i3 net 3 PERSON.

parser: known to? he currently outside the?UhttTED S?t?l?xTE'Sr er wtweemseiiun is 
hneiten, Witt no:  treated as a 1.1.8. unless._ an seperegnate reels-untenyide?ntitieai?ee eueh er the,
he:an at the person's communications: er ether indicia in] the contents- or cire'umstances of such
?Ornntunicattens give rise. ti: 3 reasonabi'e belief that such parse-rt is: a U3. PERSON.

A person h?ncuwn tn he an etien admitted permanent {residence may-be tn
have that Stems as US. PERSON it the person teeves the UNITED STATES and it is that the harem:
 not in with the administrative termaittiee providteti by [aw (8 Section 12-303} that enabte
such. pens-one to reenter the STATES whheut regard] to theprovisione at 151%? that would nmemise
restrict en alien?s entry into the STATES, The {aitute to fc-tiow the statutory pxecedures mead-jee- 
reasenehle basis to enacted-e he: such et?en has abandoned any intention oi maintaining statue as 
permanent resident attest,

An unincorporated esseetatien whose headquartereere located 
be presumed not to he :3 LLB. PERSON unless the? has iniorimetien indicating that at

euhst?a mite-t number at members an: cities he at the UNITED STATES or attene et'trnihed te?rperrnenent
reefdenca.

 

-- .. 

 



2-112

*3
?a

{Ti
0
?31



371.51; 11993

- 11399 the nationaiity {ha In which they, are:
oristatev?i'aw mam! the-

dnly axiggpti'qn set-fordhfabgve is openi'y

alckn?wiadged his dimmed a?d Comrotied by foralgn govarame?hts. 

?incorpnrat?d Is a subs?dfary. af'a?

U45: 

=3hs'pszand'aircrafi are; regal gn??aszand have tha?na?qqgluyof the
mummy they are?ragist?rad. Ships-andairtra? Wine ?ag and th?a'law ofi'their piaCa:
afaregistraunn.

 

 

 


t3.

..


wagerszoosmoog 

QFFICEIQF THEDIRE-CTOR OF NATIONAL INTELLIGENCE

OF THE .INSPECTORGENERAL-

 

WREVIEW OFTI-IE. PARTICIPATION OF THE
OF  INTELLIGENCE
IN SURVEILLANCE PROGRAM

July 2, 2009 

ROSLYN A. MAZER

INSPECTOR GENERAL Copy No.

    

BY: 2385885

I Innr?nn 


m. 1AA 

?34





. LL


EL.

ED

This ?page intentionally left blankII.

1H.

[Vi

VF.

ti) Pmmi:
I Ul?h .

 

(U). TABLE OF CONTENTS

(1U) EXECUTIWE SUMMARY

(U) INTRODUCTION

(In SCOPE AND METHODOLOGY
(U) . DISCUSSION OF FINDINGS

A.  .?InitialResponse'by the?Ppesideut?anngoqgress to
tlh'?Tl?rrorist Attacks ofSeyti-zmber 11,, 20071. 

B.  ?0an Role-in Preparinng-eat

Assesments inesupport cf 

I. 7 Useof?t'hQPrOglINCTC Ratein'IdentifyingPregram
'ITargeis or Tas?king?Collection-

1F.  ODNI Oversight of the Program
(U) CONCLUSION

(U) APPENDIX STRUCTURE OF THE ODNI 2005

'71

0

PAGE:

12.9

13

'13
16

17

m?I??Hil



. 













@g





??5gu-

This page. intentionally 

2116

 

?HH'v-v-w I A 4 
u: Giannini. 1 a rims/t1 at; [veto-gun? stun-um?

1-3

rat;
oration; 
IN THE SURVEILLANCE rnoenasr

I. . (U) EXECUTIVE SUMMARY

 I - a a . The Office of inspector Genera-l (01G), Of?ce of the
Directo}: of. National Intelligence. (ODNI), was one of ?f?jVie I ntellig'en'ce Community
Inspectors General that conducted a review of their agency?s" padicipation 'intlie
President?s, Surveillance Pro grami(herea-fter. ?the. Program?), a top :secret National
security Agency (N A) electronic surveillance. activity Undertaken at thedi?rect-ion of the
President. The Program became operational?en O?ctob er-i4, 2.010 three-weeks after the
deadly terrorist attacks of September 11,2001. The review examined the 
involvement in. the Program from the period, 'begii?lning;wtth the standmp of'the ODNI in
April 2003 through theitennination of the Program in January'2007.

. - a The ODNIisprirnary role in the Program was the-
_preparationrofth'e threat assessments that summarihed the al iQaeda? terrorist threat to the;
United States andWere used to support the periodic reauthQrization of the Fragrant. That
roles-against April 2005, shortly after.- the ODNI'Standatp and contemporaneous with the;
arrive:le General'Michael Hayden as the?rst Principal Deputva irector of National
Intelligence Prior. to :his ODNI appointment; Hayden was Directoriof 

In April 20055 ODNI personnel in the National Counterterrorism Center; (NCTC) began
first-of 12 Program threat assessments. Iii-coordination With the
Department of then irector? of Natibnallntelligence John
Negropome .or PDDNI Hayden approved 12- ODNI?prep'ared threatesse?Ssments over an-
IS-m'onth period. Once approved'by the DNI or the Ptogram?threatassessments
were reviewed and approved by the Secretary of Defense, and were subsequently used by
DOT, NSAgand White House personnel in support ofthc Programgreauthorization._ In

I tendon. at? the threat assessments, We found- that NCTC us (1 Program

   
     

During the review, we made several related ?ndings
and observations. We learned that the ODNT. usage of Program?derivcd 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 specific targets for I :t 3 r1 ODNI personnel
werezidenti?ed as having contac  egarding the
Program, we found that those communications were 1 ed i, equency and scope. We
also found that the ODNI intelligence. oversight components thei'Civil Liberties
Protection. Of?cer (CLPO), Of?ce of General Counsel (OGC), andthe 01G had little
in oversight of the Program. and had limited opportunity to. participate in

Program oversight due to delays in ODNI ochSIght personnel being granted access DIUL. 

mat:

218

 

aProgralnand temporary resource limitationsattendant. to theretandenp ofthe 

Finally, we feund'that-the 2008 amendments to Exeentiiue Order [2333 and the-cairent

?ODNI-stafting levels provide the ODNI'r?oversightcomponents wit-1'1- suf?Cierit resodrces

and authority to fulfill their current oversight responsibilities, assnming timely
notifiCation-i

n; INTRODUCTION

I, . .. .   . szeforeign [Intelligence 
L. No. 1104261., .122 Stat. 2438 (hereafter Amendments Act?)
required .the-JIGs of the- DO-J ODNI, Department of Defenses (DOD), and any other

element of the intelligencecommunitythat partiCipated in the President?s Siu'veiilaHCe

Program to conduct-a comprehensive rev?iew of the. The FISA Amendments
Act, de?ned the ?President?s- Survei'l-lanCB Program? as. the ?intelligence activity inVo lving

communications antherized by thePresidentduiing the period beginning on September

1:1, 2-001, and endingon January '1 7, 2007,. including the program r'r'el?eired to by the
President in a radio address on December 17, 2005." In 

 the. lloWing-??ve agencies were. having arole in. Program review: DOI,
=0131511,?h?lS?A, DOD, andtheCentral Intelligence Agency(CIA). 

 The participating review ina manner- where each 
conducteda review of its own agency?s invOIVement in the Program. CIA 1G John
He?lgersontwas initiallydesignated'by the IGs-to coordinate the review and oversee the
preparation of an interim report due within 60'daysx after the enactment of the Act, and a

later ?nal. report due not latent-haul year after the enactmenth the Act.2 Because of 1G

HelgerSoNsrecent retirement, D01 Glenn Fine was selected to coordi-nate'the
preparation ofthe ?nal report. This report contains the results of the ODNI OlCr review.

(U) SCOPE AND METHODOLOGY

. We sought to identify the role of the ODNI in
implementing the Pregram beginning with the stand?up of the ODNI in April 2005
through the Pro gram?s termination in January 2007. This review examined the:

A. Role of the ODNI and its component the National Counterterrorism Center
(NCTC) in drafting and coordinating the threat assessments that supported the
periodic reauthorizat ion ot?the Program;

 

LfSh?Hi-?TThe Program is also known within the lnteiligeu?ce Cotmnunity'by the cover term STELLARWIND.
The?Prog-ram isa-Top Seeret/Sensitiva Compartmenth Information (SCI) program;

1 (U) The participating IGs submitted an interim report, dated September 10, 2003, to the Chairman and Ranking
member of the SenateSeiectVCommittec on lnte'liigence (SSCI) and arevised interim report, dated November 24, 2008,
to tlie'Chairmnn and Ranking member of the House of Representatives Permanent Select Committee on intelligence


 

 

Ml?l?xl 


ran inn!" is
. 7' HM.) IMWVII 


emcee, serene

Br. of?P-rograni information tossup?port eeunterterr'erismianalysis;

 rolein' Pro rat'n targets 



 

Roleof theODNlh providing-Compliance oversight of the Program.

i  During-the. review, we interviewed 23 currenr?or I
former ODNI of?cials and-empleyees involved. in the Program. The ODNI personnel We.

interViewe'd were Cooperative and?he?lpful; Our hitervieWS included the following 
senior of?eials:

 

John Negro petite, former?!) hector of National Intelligence
Michael McConnel1,.fOri11er Director of 
Michael  Hair Ell-3115: funnier? PrincipalfD entity? Director ofNational Intelligence-
RonaldBurgess, fermer Acting Principal Deputy Directorof Nation allntelligence
David Shedd, Deputy Director ofNational Intelligence for
Policy, Plans, and Requirements
Alexander oe'l, (3 Mi Liberties ?Pi?otecticn Officer
Edward ?h/Iaguire, ferrner InsPector General
Benjamin Ferrell, former-General Counsel
Stone, Deputy General Counsel and? Acting General?Co'unsel
JoelfBrenner, former NationalCo'unterintelligenrie Executive3
John Scott Redd, former NCTC- Director
Michael Leiter, NCTC Director

In addition to the intervieWS noted above, We reviewedProgram-telatedx
documents-made, availableby the NSA OIG, the 016, and the 

W. (U) DISCUSSION or resumes

-. - . The following discussion contains our ?ndings
regarding the topiCs identi?ed above. First, we brie?y describe the terrorist attacks of
September ll, 2001, and the initial government response to the attacks,.including the
authorization of the President?s Surveillance Program. Next, we discuss the ODNI and
NCTC role in implementing the Program. Finally, we set forth our conclusions and
observations.

A. (U) Initial Response by the President and Congress
to the Terrc?srist Attacks at September '11, 2001'

(U), The devastating al Qaeda terrorist attacks against the United States quickly
triggered an unprecedented military and intelligence community response to protectthe

 

3 (U) Brenner Was the NSA Inspector General before joining the ODNI.

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The following quote describes the initial terrorist attacks,
and, the intended al Qaeda goal to. deliVer? a decapitating strike against o?ur political
institutions.

 l, 2001, theal ,Qaeda terrOrist network: launched a setof
coordinated East Coast of the United States. Four commercial-
airliners, .eachcare?illyselected to be. fully, loaded with jet ?lelfor a
transcontinental flight, were hijackedfby al Qaeda operatives. Two of the jet?liner?s
were-targeted at-theNation?s ?nancial center in New. York and Were. deliberately
'?owninto the Twin Towers of the World Trade Center. The third was targeted at
the-headquarters "ofthe Nation?s Armed Forces, the Pentagon. The fourth was
apparently headed toward Washington, DC, when passengers snuggled with the
hijackers and the plane crashed in Shanksvi-lle, The intended target
of this fourth jetliner was evidently the White House or the Capitol, strongly
suggesting that its intended mission was to strike a decapitation blow on. the
GoVerninent'of the United States to kill the President, the Vice President, or
"Members of Congress. The attacks of September ll"Ih resulted in approximately
3,000 deaths ?the highest single-day death toll from hostile foreign attacks in the


(U) On'Sep?tember 14, 2001, in to the attacks, the President issued a
Declaration of National Emergency by Reason (if-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.?5'

(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 Uni-ted States. The joint resolution, also knowa as the Authorization for Use
HUMP), is-otten cited by White House and of?cials as one of the
principal legal authorities Upon which the Program is based. In relevant part, the 
provides:6

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) Thissummary of the events uESeptember l. 2001, was prepared by D01 personnel and is sat forth in the
unclassi?ed DOJ"?Wliite Paper? entitied Lego! Authorities Supporting the Activities ofir?ie National Security Agency
Described by the President, dated January t9, 2006.

5 (U) Proclamation 74,63, 66 Fed. Reg. No. :31. September 14, 2001.

5 (U) Use of tritium}! orce, Section Pub. L. No. 15 Stat. 224. September 2001.

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prevent any ?tture acts of ?international terrorism againstat'he United
States nations, organizationsor- person?sOctober 4, 12100 V1,;three days beforethe-staitef Overt
military act'ioii against- t'heal Qaeda and Taliban terrorist-camps, the President-antheriZed-
lt-he Secretary of Defense to implement the .President?siSnWeillance The;
Progtam, a closely he?l'd?toprsecret NSA electronic surveillanceprojecr, 
?SecjretaryofDefense to employ withi'ntthe United. States;thecapabilities of theD'OD?,
including lbutnot limited to the signals intelligence capabilities. of the .to Collect
international terrorisn1?rela,ted foreignintelligence inferination under certain speci?ed-
cireu?mstances. Each Program reauthorization was supported?by'a?Written'threat
assessment, approved by a senior Intelligence Community-of?cial, that..de3cribed the

threat of a terrorist attack against'the United States.

 On October 7, 2.001, in a national television breadCast?; thePresident
announced the?sta'rtxof military operationsagainst at Qaeda?andraliban tentorist camps in
ti'tfg'hani'stariApril 22, 2005-, the ODNI began operations asrthe
newest member of the Intelligence-community The wascreated, in
response to the ?ndings of the.?Indiapendeni?Notional Commission :on. arrorist Attacks I
UPOH-?thernited States (hereafter. 9/ ll CommiSSi?on) that recommended thecreati?e?n of a
national ?Director of National Intelligence? to oversee and cOordinate the planning,
policy, and budgetsof the "intelligence Community? In latezApril? 2005; personnel
began to preparethe-threatassessments used in the periodic .reauthorizatiOn of the
Program. InJune 2005, ODNIfofii?cials began to approve the threat assessments.

B.  in 
in Suppert of the Frag-ram Re'authorizations

i Prior to the involvement in the Program, the
Program was periodically reanthorized approximately every 3.0 to'45. days pursuant to a
reantl'iorization process overseen by NBA, and White I-IOLls'e-personnel. Each
r?eauthorization 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 official?s recommendation
regarding the need to reauthorize the Program. Before the involvement in the

 

The materials we revieWed identi?ed October 4, 2001, as the date of the ?rst Program
aulhorization.

The CNNcom webpage article entitled President announces openingrofarmdt; dated, October 7, 2001, provides
a Summary oi? the President?s announcementand describes the national television broadcast.

9 (U) While the Intelligence Refomi and Terrorism Prevention Act 0f2004_ that created. the was.
signed by the President on .D'ecemberlL-ZOM, the actual ODNI stand-up-oceurred=m0nttis later. Theof?cial-DDNI

history, A Brief History. of the ODM 's Founding, sets April 22, 2005', as the date whenthe. ODNI commenced
operations.

 6

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?13

Program, every tlu?eatassessment preparedth the. Intelligence Community in support of

the Program.reauthorization identi?ed the threat of a terrorist attack against the United
States andrecommended that the Program be reautheriZed. Accordingly, the-Program
was regularly reautlrorized during the approximately 3?year period prior to the
vinyolvementcf? the ODNI. During that period, theD?ireetorof Central Intelligenceor'his-
?de?si'gnee approved 3 l.-threat assessments in support of "the reauthorization of the Program.

a i i In reviewing the circumstances that led to the decision
to transfer responsibility fer preparing the Program threat aesessments to the we
the does not have identi?able records regarding that decision. Senior
ODleofficials involved with the Program told us that after the merger of the Terrorist
Threat Integration Center (TTIC) into the NCTC, and the later incorporation of NCTC
into the-ODNLit 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 therPregram was the statutory creatio?n?of the new position as the senior
Intelligence Community adviser to the President. When Ambassador Negroponte was
corr?rrnedas the?r?St DNI, Hayden and other senior intelligence of?cials believed that
DNI Neg-repente, 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 impertant

intelligence program enhanced the role as the leader of the Intelligence

'COmm'rrnit-y and gave immediate credibility to the ODN-I as a new intelligence agency.

Once the ODNI became involved in theProgram, the-

preparation andapprova'l of the threat assessments became the primary Program
role.? Beginning 'in April?2005, and continuing at about 30 to 45 day intervals untilthe
'Programi-s termination in. January 2007, ODNI personnel prepared and approved 12.
written threat assessments in support of the periodic reauthorization of theProgram. 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 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 Pregram. 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 memes.?

 

The joint interim report prepared by the participating [Gs noti?ed congressional
oversight committees that the review-would examine the ODN 1?s involvement in preparing ?threat assassmenls and
legal c'er'tl?catiOns'" submitted in support of the Program. Because we did not identify any ODNI officials executing a
rleg'ai certi?cation, we treated our review of the legal certi?cations to be the same as the review of the threat
assetsments. The Attorney General made legal certi?cations in support of the Program that are addressed in the DOJ
OIG report.

 

 

- . . . During interviews, ODNIpersormel. said they were
awaretha-t?the threat assessments were relied upon by and the-White House as the
has is for "centinuing the Pregramand ?irther understood that if a threat assessment
identifieda threat-against the United States, the Program Was likely to be. reauthorized.
NCTC also said that en a less frequent basis they prepared a?related document
that set forth a list of a1 Qaeda?af?liated groups that they understood were targets of the
Program. Both-the threat assessments and the less frequent list of hi Qaeda-af?liated
groups underwent the-same ODINI approval process.

 We examined the ODNI process for preparingthe
Program. documents, particularly the threat assessments, and found that the documents
were drafted by experienced NCTC under the supervision of the NCTC Director
and  management staff, who were ultimately responsible for theaCCuracy of the
information-in the documents. We determined that the threat assessments were
preparedusing evaluated intelligence information chosen from-a wide-variety of
Intelligence Community sources. ODNI personnel told us that during the period when
the prepared the threat assessments, the Intelligence Community had access to
=l?uileraluated intelligence that readily supported assessments thatal Qaeda
terrorists remained a signi?cant threat to the United States.

a Once the ODNI threat assessr'nents were approved
within'N'CTC?and by the NCTC Director, the documents were forwarded through an
established approval chain to senior ODNI personnel who independently satis?ed
themselvesthat the documents were accurate, properly prepared, and in the appropriate
format. Throughout the ODNI preparation and approval process, the threat aesessments
to varying degrees of review and comment by D01 and OGC attorneys,
including then General Counsel Benjamin Powell and Deputy General Counsel Corin
:Stone. Pewell Said his review of the threat assessments was not a legal review, but'was
focused on Spotting issues that might merit further review or. analysis. Powell said he
relied-on DOJ to conduct the legal review. Once the draft ttu'eatassessments were
subjectedto ?this systematic and multi-layered managementand legal review, the
documents?were. provided'to the DN1 or for consideration and, if appropriate,
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 I
issues present in 2005 relating to the ongoing ODNT start~up as a new agency and other
[nteiligence Community matters requiring his attention, he tasked his deputy, then
PDDNI Hayden, to oversee the ODNI approval of the threat assessments and related
documents. Negmponte 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 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, Negr0ponte approved the next ?ve ODNI threat assessments, including a December

 

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used in the final reauthoriz?atiml cf the P.1'ograrn.- In total;

Negropoure and Hayden approved 1-2 ODNI threat. assessment-s prepared in support (if-the

Program ,?reautho'rizations. 

- In; discussing the ODNI process prepare and

 

. approve the threat assessments, Negroponte told .us? he was ?extremely Satis?ed.n with the
squality?and content of the threatassessments provided for hisapprovaL He did not-recall

any inaccuracies or. problems relating to preparation of the ODNI threat. ass?eSsmen?ts.
Negto?ponte'said the al Qaeda threat irtfoimaticn desoribed in the Programtlneat
assessments: was consistent with tlre-ten?crisrn threat information found in he President?s
Daily Bi'z?e?hg'and other senior?level Intelligence'Cmmunity products he had read.
'I-Ia-ydeni had a similar View. Negmponte and Hayden separately told us that when they

approved the?threatiassessments, Credible intelligence was readily aVailable to the

IntelligenCe Co?rrmtunity' that demonstrated the ongoing and dangerous al Qaeda terrorist
threat to the United States. Similarly, Negroponte and Hayden each told us that the

nature ancl?sCope'of the ai Qaeda ten?orifSt threat to the United States was well
documented and easily supported the ODNI threat assessments used in the Program

-r_eauthotizat_ions.

I  Because of questions raised in the media about the
legal basis to: the Program we asked the ODNI personnel involved. in the preparation or
approval ofthe threat, assessments about theirconcems, if any, regarding the legal basis
for the Program. we 'ibund that personnel 'invOlved in the Program generally
understood thatthe Program had been in operation forseveral years and wasapproved by
senior'lntelligence Communityand DOI of?cials. During our interviews, of?cials
told us they were satis?ed with the legal basis for the Program, primarily-becauseof their
knowiledgetthat the Attorney General and senior DOJ attorneys had personally approved
the Program-and remained directly invo?lved?in the Program reauthorization process. We,
did not identify any ODNI personnel who believed that the program was unla'w'?il.

I, i. - Former ODNI General Counsel-Powell told us that after
his Program brie?ngs-in early 2006j he had questions regarding theDOJ description'of
the legal authority for the Programbtit lacked the time to conduct his own legal review of
the issue given the many timesensitive ODNI legal issues that required his attention.
Powell said he understood the rationale of legal opinion that the Program was
law?ll and described the DOI 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 i3sue 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 be relied on the DOJ legal opinion regarding the
Program and directed his efforts to supporting the Progra m?s transition to judicial
oversight under traditional PISA, the 2007 Protect America Act, and the subsequent PISA
Amendments Act of 2008.

 

 

The .DNI and togelherapproved 12 of the 4-3 threat assassmants used insupport?
of the Program resuthorizations. CIA of?cials approved the other 31 threat assessments.

 

 

 

 

.  7 1* :Negroponte recalled withSeniQr
?eff?cials who raised no legal? cancems _t03hitn about the Program. He said
116' rememberedfattending afPregard-related?meetingthat includedimernbers of the PISA
Butt Whovdid notrraiseany Legel- concerns sfojhim ab? out the .authdrity for the: Program
'and'seemed; generally supportive: of the Program. Negtopohte alsorr'ecalled attending
.1mee?t'ihlgsihwhieh the-Ptogramwas- briefed. to ?001Tgrees'idhdl leadership Who not did frai?se

legs-1 concerns tofhim- OVerall,? the direCt hwolvementegleQJiaudiother Senior

{hie 11E ge-nce community of?cials in the Program resulted in Negroponte and Other ODNI
if arm concerns abouttheleg'?tl basis for therPL'ogram

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Analysis

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tanO more mar-1.15 NCEC anaIYStS?for-raview arid, if

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handlingintelligence. They said they han led,   
Program-information,- -consi3tent=With .the standard mle?s .andprocedures for handling NSA
intelligence information, including the minimiZatio,n person identities.

Hayden ,toldus that-duringhisgtenure as Director of

- During dur review, toldh'us- they often
vailable oathemawas deriv ?emthe-Pro am.

 

 

 The" number 0f NCTC read into the Program ranged from J.- umbom 1'th :1 WW 1?0

.. -0 an. 


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qu?  a v. -: 

 

 

        

 

"leiewi that-a? neural-Men- tritelttgenpepmnuct. was derived from-the Program, the.

inthe same manner as other 
?Eintelligenceproducts and, if?approprla'te, LincOrporatedfthe grain. informatien into
analytical products being prepared retire DNI and-ether senioi: intelligence. of?cials,
Talleyrident'i?ejd'fthe Presidents Terrorism SQniorExeetitive
of?th?e types of?nishedintelligence preduc?ts that wOul?d, at
times; contamPr?ogram: information.

 NCT-C Program access said they had
broad access to a-wide variety of high quality and fully evaluated terrorisnt related
7 intelligence in particular, NCTC told us thatby virtue of 
aesi'gnments, "they had access to some of the-most sensitiVe and valuableterrorism
tintellriIanCe avail'able?to the Intelligence Commiini'ty. NCT charaCte1'iz'edthe-'
Program being a use?al?tool, but also noted. that the'.Program information-
=Wasonlyone~of3everal valuable sourcesof information.aVailable-to them from numerous:
collection sources and methods. During altervi'ews, NCT-C and-otherODNI
perISOnHeLdescribed. the Program information as ?One tool in the-tool box? ?one arrow in
thequiver;a sor'iriothergsimilar phrases to aeonnote that the Program infermation was not
efgreateryalue.thanether Sources of intelligence. The NCTC we interviewed
Said-they eon. telnet identify speci?c examples Where"the-Program- int?ormation provi
 he co steered time~sensitive or ae?tibnable intell" 7 '7 I erall "recwhen the threat assessment Linemorandm the intelligence

    

demonstrati'ng?the al Qaeda threat to the. United States was overwhelming and readily
available-"to the Intelligence Community.

 When asked about the value, of the Prograny Hayden
sa'id'?witho?ut theP-rogram as a skhmish 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 learn. Hayden said that NSA General Counsel
Vito Potenza ol?ten 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 extre 7 
terrorist attack. Hayden 

 

 

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 12

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N0 NCTC Rolei'n; Identifying Program Targets

 

.?ahd ?Tas?ng cull?ectidndid notidentify? any information that indicated that
 personnel were-?involvedrih identifying or- nominating targets for 
Co'lleetionwithi?'the Program. personnel told non.

- operational elements of the Intelligencecommunity'altd were-not involved in no initiating
target?svfor? Program collection. I

 ODNI Ottersight of the Program

 f3 .4 We'examiued the roleof the: ODNI everSi?gh't
and OGC for. the
Program; We fo?und?th'at while-the Program was Stibjectut?o NSA DIG,
therQDN-I ;QVersig'ht.? components had a Oversight for the
Durir?tgthereview, we lea-medthatwithin the ?rstyeer-ef the Program, then:
NSA?Diiredtor Hayden obtained White HouSe approvalra'llowing the-NSA IG'and?
of?cials to be. read into the-Program to provide- compliance-
over'si'ght far-?the Program. Of: the NSA Ovet'Si'ght'prograln,; the NSA IG
provided ?eemplianee reports-and brie?ngs Director, NSA General Counsel,
rand Cleared White Holise personnel, including; the?CeLmsel to the 

 In reviewing the ODNIoversight roleregarding the
Program, we found that the ODNI oversight components had limited involvement in
oversight of the Program. We found that the opportunity for the to participate in
Program oversight was limited by the Fact that ODNI overeightperso?miel were not

       

and staff were not read into the .ProgTarn and did itot?recewe compimnce reports from the: NSA [Gr
*2 mm; q'f4:- r31 - 
223 if?? SCREE  L'vw" ?be {@ri?iw ?nut??mi

 

 

granted timely access :to the Program by the White House personnel responsible for
approvingaccess. In addition, we found. that the newly formed oversight offices
were in" varying stages of agency stand?up-and lacked the necessaryexperienCed staff and
resources to effectiVely participate in oversight ofithe Program}.

4  . For example, General Counsel Powel'l?received
Program access afterhis arrival in January 2006, "but his predecessor, then Acting.
General Counsel-J Carin, Stone, was not read into the Program. until a few days before
Pewell in-J'anuary 2006,, several months after the'PrOg?ram became operational within
'only'at?ter she had read about the Program in a December 2005 nevvspaper
article.? Similar-1y, CLPO Alexander Joel, who is responsible for reviewing the privaCy
sandCiVil liberties implications of intelligence activities, requested but did. not receive-
Pro gram access untiliOctober 2006, shortly before the Program terminatecl..18 Joeltold us
that Negropome and Hayden supported his request for Program access, but White-House
staf?delayed approval for several months. Joel. said that while waiting. for approval of his
Pro gram access, Hayden gave him some insight about the Program that did not require
the disclosure of campartmented mformation. cel found this .infOrmation helpfulin
planningliis later; review. Finally, then .ODNI InspectOr General Edward Maguirezand
his oversight staff did not obtain Program access until 2008, long a?er the Program had
terraintitted}?9

 

. . Once read into the Program, Powell and Joel were
provided with reasonable access to NSA compliance reports and brie?ngs relating tothe
o'verSight program. Powell told us that he was satisfied that the NSA IG
provided a reasonable degree of Program oversight. Similarly, Joel said he believed that

he: had received disclosure regarding the oversight program and found the NSA
worrersight effort to be-reasonable.

7 ., . . 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

 

i7  Powell was appointed General Counsel in January-2006 and sewed in-that position as a recess
appointment Until his Senate con?rmation in Apri12006. Prior to his appointment. Powell was-an Associate Counsel to
the President and Special Assistant to the Presidentwiiere lie-worked on initiatives related to the Intelligence
Community. However, Powell was not read into the Program while serving at the White Housc.

13 (ill/359993 Joel is the Civil Liberties Protection O?icer (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 CL-PO responsibilities are set forth in the Section 103d of Intelligence Reform and Terrorism Prevention Act of
2004.

DIG personnel were not read into the Program until 2.003, OIG officials were alerted to the existence
of the NSA collection program throngh a December 2005 newspaper report. Shortly after that report, the NSA told
the NSA DIG was conducting oval-sight of that NSA program. PDDNI Hayden also told 
Magu?ire? that'the NSA. program was subject to NBA 0K3 ovarsight.

2?  was created by the ?zle?r?gancc and Terrorism Prevention Actbf2004 which
requires the Board. to ?ensure-that concerns with respect to privacy and civil liberties are appropriately considered in the
implementationcf iaws, regulations, and executive branch policies related to efforts to protect the Nation against
terrorism (PL. 108-458, 2004).

?14

 



Elatitlv resulted than independent and generally. favorable-?ndingregarding the-NBA. 
implementation. of the'l?rogram. After the PCLOB. 'r'evit-iw7 bean-d member;
editorial artiCle, impart, quoted-below,- that'snmmarized his-observations
regarding the NSA. effort in implem'entaing the Program.

There were when the Board Was ?read into? and given. 
Complete access to the operation of the Terrorist SUrve'i-llance Programmer
wondered Whetherthe individuals dif?cult job on all
ofus Were notbeit?ig'too careful, too concerned, abontfgoing Over? the
privacy and liberties linesm so concerned?, with so many internal clieelrs
and balances, that they could miss catching or prevtmting the bad guys
from another attack. And I remember walking out of these brie?ng
ses?s?iOns in some dark and super?secret agency With the thought: I wish the
Amalgam-people could meet these. people and are.
doing.

 In sum, the?ODNl oversight components had limited and belated
involvement in the oversight of the Pregram; into the Program,
Powell andiJoe'l determined that the Program was .?subjECtto reasonableoVersight by the
NSA OIG. Mercer/er, the initial White House oversight

?personnelQaccess to the. Program- occurred prior to the 2008 revision to. Birecutive Order

 12333;, which oversight access;th any
information necessaiy- to performing-their oversight duties; {in particular; BO 1412333
provides in relevant part that:

Section 1-;6 Heads of Elements efrlre Intelligence Con-um-mityr The heads
of elements of the Intelligence Community shall:

Ensure; that- the i?nspectors general, general counsels, and agency
of?cials responsible for liberties protectiOn for their
respective organizations have aeoess to any information or intelligence
necessary to perform their duties.

 E0 12333, as amended, clari?es the
ability to provide compliance oversight. In light of the recent change to EC)
12333, and with currentstaf?ng, we believe that oversight components have
suf?cient resources and authority to perform their responsibilities to conduct oversighth
closely held intelligence activities, assuming timely noti?cation.

 

3' (U) The quote is taken t?rom aMay 5, 2007, article by former PCLOB member Lanny Davis, entitled, f?ii?hy I
Resigned From The President?s Prime): and CiviI'Liber-Fies- Oversight Boardw And lai?here We Go From Here. The
article was published on webpage of The PM ffin'gton Post, 

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carrier? a LW mp3 NQIQHN

 

 

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-  werounathat the GENTS:primaiy'role. in the Program
was atheppreparation of - 2; ODNI "threat assesstnents approvedby the DNI for
use in the tfog'ratn reauthori?zations. The set forth the

GENES view regarding thee?xisting threat ofraa al.? Qaeda tetro'rist?attack against the
United States and prov?dect the DNI?S'recommendation need to teauthorize;
the Program. We found that assessments weredraftedby experienced
NCIC personnel under the supervisio?iot? We. noted
'thatnthe' threat assessments were'subj eat to. review by OGC and attomeysbetbre
approval. Additio.nally,,we found that'the prOeBSs used by the ODNI togpr?epare and
obtainapproval: of the threatassessments Was straightforward, reasonable, and consistent
with the preparation of other documents requiringDNI approval. Overall, we found the
GDNIrp?rooess for thepreparatio? and apptoVal Of the threat-aesessments Wasresponsible
and effective. 
. . We also ?found that the ODNI oversight Components
:playeda limited role; in oversight of'the Program, The limited ODNI Ove_tiSigltt role was
due to delays in obtaining Program-access for ODNI oversight personnetand to-
;temporary'resoLu?ee limitations related to the stand-411p of titer-ageney, However, we
believe that the 2008 amendments to?EO l'2333laud improved staf?ng levelsprovide the
ODNT oversight components with andauthority to ful?ll their. current
oversight responsibilities, assuming timely noti?CatiOn.

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 Degartm?nt of Justice
Office. ';1111'ec'tor Earl

   

    

 

eview 0f the Wepiartment of Justices
. .- InVOlveme?t     
President-31s Surveillanee Pro gram (U)

.. 3

 

Department of ustice

Office of the Inspector General
Oversight and Review Division
July 2009

 

 

 

 

 

 

 

 

more or? CQNTENTS

  INTRODUCTION (U) .i 1
1.. ije??i-o?dology oft-DIG Review  
1L. Organization of this Report- (U) .i  
LEGAL AUTHORITIES (U)   
I. Constitutional, Statutory, and Executive order Authorities (U)  7
A. ArtiCle II, Section 2, of the Constitution (U)  7
 The Fourth Amendment (U) Hr. 7
C, The Foreign Intelligence Surveillance Act (PISA) (U) 8'
Overview of FISA (U) 8
2. Applications and Orders (U)  .10
3. FISA Court (U) .1 .. 11
D. Authorization for Use of 'Militaiy Force (iU) 12
E. EXeCutive Order 12833 (1U) .. 13
II, PreSidential Authorizations (U) 14
A. Types of Collection Authorized,  . .15
B, Findings and Primary Authorities (Us)  .. 16
C. The Reauthor-ization Process (1U). ..- ?16
D. Approval ?as to form and legality? (U) .. 17
CHAPTER INCEPTION AND EARLY OPERATION OF STELLAR
WIND (SEPTEMBER 2001 THROUGH APRIL 2003)  .. 19
I. Inception of the Stellar Wind Program (U .. 19
A. The National Security Agency (U) .. 19
13. Implementation of the Program (September 2001 through
November 2001)  .. 20
1. Pro-Stellar Wind Office 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  support of the Program
(- ,ovember.  throuthanuar-y 2002Presidential Au?iorization of NOVember '21, 2001 
   .. 31
 rod. Drafts foioe 0f Legal. .Coians'eljlviemorandum
Addressing Legality-of Stellar Wind
 
 .Additional Presidential Au?lor-izations (U)   
4.. subsequent Yoo Opinions (U) .39.
Yoo'l?s Communications with the Whitezl-Iolise 4O
6. ?Qonzale's?s View of the Department?s Role in
Authorizingthe Stellar Wind Program  .. 41
ImplementatiOn of?theStellar Wind Program 427
A. Implementation of Stellar Wind (11/  42'
Basket. 1 - Telephone and. EleIait Content Collection
  .  .21. Basket 2 ei-Telephonvaera Data ?Colleotion'
3..   . I 48
3. Beeket 32?? E?Mail Meta 'a?ta Collect-ion
 a .151
B.  Precess for Analyzing Information Collected Under 
Stellar 'Wind  52
1-. Basket Content tasking, Analysis, and
I Dissemination 52
2.. Baskets-2  3: Telephony and E?Majl Meta Data
Queries, Analysis, and Dissemination
7 .. 54'
Early Participation in the Stellar Wind Program?WE)- .. 58
A. FBI Director First Informed of Stellar Wind Program
 59
B.
 59
0, FBI Begins to Receive and Disnemi'nate Stellar- Wind
?Tippers?  .. 63
1. FBI Initiate .. 63
2. FBI Field Offi'eesi? RespOrIse to Leads
 ., . . . . . . . . . . . . . . 4 . . . .l 67

 

 

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E1313sEffojii-?ts to Track Stellar WindITippeifs and'
Exeeutive:Management 
Leads - -- - 
IV.  Department Officeof Intelligence Policy and Renew-?39 
and'zFI'SACourt?s; Early, in Stellar Wind
a; 
 Overview-o?fOIPR 71
OIPR Counsel, Learns of "Stellar Wind Program  '1
PISA Court is Informedof StellarWind  
Implements ?Scrubbing? Procedures fOr- Stellar Wind
Information in International Termrism FISA Applic?ati'cmsInitial Scrubbing Procedures a  7'9
2.. Complications with 
   . . . . . . . . . . . . . . . . . . . . Judge ?Kollarl-Kotelly Succeed?s Judge Lamberth as FISH
Freeiding Judge (1U). 83?
ridge Modifies  Scrubbing
Proeedures . .n .- - .- 83
2. QIPR implements. udge KollareKOtelly?s SCru?bbing-
Prboedure?W  
Initiates Measures to Iirnproye the. Management of 
Stellar Wind Information  .l 88
A. CAU Acting Unit Chief Evaluates FBI Response to
.Ste?ar?Wind?W?m ..89
B. A Cooperation with NSA and Initiates
reject to Manage Stellar Wind Information
..90
C. FBI Assigns CAU Personnel to NSA on Full?Time Basis
  .. 93
VI. OIG Analysis (U) ..94
LEGAL REASSESSMENT OF STELLAR WIND
(MAY 2003 THROUGH MAY 2004)  99
1. Justine Department Reassesses Legality of Stellar Wind Program
"i ..99

 

 Overview of Office of Legal Counsel (U)  .. 99.

 

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 within?Office. of'LegaIJCQunsel (U)  100'

 

 Toots ?Role in the Program (O?etober' 2001 through
.   . . . . . . . . . . unjust-bl:- . . . ?urn?; 
2; 7hilbi311 Replaces Yoo: (U) 4. 103-.
Illnit'ial (13017.1(: i ?i   i 1?04
?Pl?9111mm
 :55:     .  1.06
 :Other?olleetiOn 1-08
. 6. Decision to Draft- (U) 108
'ReaSSessmierlt-di? Legal Rationale. for the Pregram
  109
Goldsmith Becomes Assistant Attorney
 . . . . nununi-109
2. 'NSA-iDeni'edi Access to OLC Memoranda (U ll 1
3.. Goldsmith oinsE fort. to .ReaSSess Legal Basis for"anyBe'c'  Legal Rationale
Supporti-nm    ,k .f theStellar?Wind
Program. . i - 11.3?
5.. Counsel Raises itsLReaSSessI-nent- of?
the:iSte11?ar (December 2003 through
 . .- 1?15
("etputyfAttorney General Comey is Read into the 
Program  118
D. Legal Counsel Presents its Conclusions to the
Whitel-louse- (U) 1:19
1. March 4, 2004: Comey Meets with Ashcroft to
Discuss Problems with the. Program (U) .. 120
March 2004: Comey Determines Ashcroft is
Disabled? (U) .. 121
8. March 5, 200.4: Goldsmith. and Philbin Seek
Clar-ifiCation from White House on Presidential
Authorizations (U) .. 122
4. March 6 to 2004: The Department Concludes
That Yoo?s Legal Memoranda Did Not Cover the
Program (U) .. 124
5. March 9, 2004: White House Seeks to Pe'rsuade
Department and FBI to Support Continuation of the
Program .1. .. 1?26-
6. Ceri?iet Ensues between Department and White
House (U) .. 129

 
  
 
    

 
  
   

 

11. White House Continues Program without Justice Department?s

Certification  .. 130

 

 

Whit-e Honse-Counsei Genzal?es Certi?e's March 11,2004,
Presidential?AuthorizatiOfx a ..
1.



7.

 13.1

 

 10,200.41: Office of Legal Counsel Pressesfor

SblidtOr General to be Read into Program (U)  131 7

 1705,: 2704: Congressional Leaders :Brliefed our
situation (U)  .. 1.31
Marc-hfm, 2004: Hospital Visit (11)  1434
March 10?, 2004*:- O'lse'n is Read)th the Program (U). 140
Mar-Ch Goldsmith Propo?s?e-s Gompromise

  youMarch 11? 2004: White House Asserts that Comeys
Status as Acting Attorney General was Unclear (U)  14.2
March 11, 2004': Genzales Certifies Presidential
Authorization as to Farm  Legality  144

Department  Officials React to Issuance of
March. 9121 2:004, Authorization . . . . .  . . 148

aweWPe



 

 Responses: offD?epartment and FBI Of?cials (U) 149
D?epartment and FBI Of?cials Consider Resignng 1'52

Comey'agdlMuel?ler Meet with President Bush .. 155.?
Camera; 1321517601137 COntimJed Cooperation  SA (U) ..- 157
158'

Department Conducts Additional LegalAnalysis (U30.
Conley Determines that Ashcroft Remains ?Absent of

Disabled? (U)  .. 163

Judge Kollar?Kot'elly Bljiefed on Lack" of Attorney
GeneralCertification  .-. 1'64
Comey and Gonzales EXchange Documents

ASSert-ing Con?i .. 164-

 

168
 E68

 

 E75

 

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Standard is Com-eyed 
. . in?1mi- .   

8., omega of Legal,?oou?slelAsseSSesNews commence,
With-New ., 1-80

    

9-. May 2004, Presidential AU-tholizetion
?gunmanDepartmenf?s Access 'to-and Legal Review of Stellar- Wind
PregramThrou?gh?lVlayQOO??r i 

The Hospital Visit. (U) 1-97

Reedeiritifioation of the Presidential Authorization and -
Modificationof?ihe Program 1'99

   
    

 STELLAR WIND PRO TRANSITION To FISH
AUTHORITY THROUGH-AUGUST 20:07) .. 203

E-MeilMeta~Data Collection Under FIVSA
.A.

D.

II.

2;
The   Applieation
4

 
 
 

 

AppIicatien and FISACourtor-der   

1.. Decision. to Seek fa?PCIl R?gister'and Trap, and Trace
 Order fromthe 7. 203
Brie?ngfor Judge Koll'arsKote'lly (U)  . 205
Judge Kollareliote?lly Raises Questions about PR  .
Applita-tiOn I .  21:2
 FISHC-Ourt-?Order 213
 "'mited
The President?s August9, 2004,
Secretary of Defense l. 

        
      
     
  
 

 

 

a  .  217
Memorandum to the
- . 2?17

  

.- . 
NonuCompliance with Order .. 219

1.. FiltEI?lIlg Violations  2 19

 

   

 

  Applications and Orders  224

Telephony Metal-Data Collection Under .. 225

 

 

 

 

 

  
 
  
 

 

 
 
  

 

   
 
 

 Debis?ion toTSfeel; orderfColnpellging Production of Call 
detail records  ..   7  
  Ozfl?D?ipaItme?t?S Application and Related FIISA
courtaOrdcr  228
C. Non?Compliance WithSection 215' Orders 232
"Content-Collection under PISA 
.A. DeCision to Seek Content Order  .. 2.37
B. Summary 13,2006, CentErrt
Application  
C. Judge Howard Grants Application inPart   245
D. Domestic selectors Application and Order   248
E. LastStellar Wind Presidential AdthOr?ization Expires
5  .. 250
First Domestic,andfForeign Selectors PISA Renewal
Applications  ?r  . 
G. Rexiised Renewal AppliCation .for Foreign Selectors and.
Order  
IV. The-Protect America Act and the FISA Amendments of
2008.  .. .. .. 2359
A, TheyProteetAmerica Act (U) 260
 The: FISA Amendments Act of 2008? (U) .. 264
V.. GIG. Analysis  267
 SIX: 27 
I. Process  
II. Decision to Issue National Security Letters under
to Obtain Telephone Subscriber Information .. 277
and Scrubbing Process W) .. 284
IV, Impact of Stellar Wind Information on FBI Counterterrorism
Efferts  291
A. Stellar Wind Statistics
 . .. 291
B. FBI Field Office Investigations 2.96

 

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 0 Meta Data ?Tippers
?4  .. 3'00.

1. Early 2006 Survey of

    
    

 

 

        

 

  
 

      

  

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Meta Data Tippers (- . . . . 301
2. Januaijr .2006 Survey 0 .5E4Mai1 IVI'eta Data; 
Tippers      .F) .. 
D. FBI Judgmental, Assessments of Stellar Wind Information
  . . . . . . . . . . . . . . . . . . . . . . Examples-.-.of.FBI Counterterrorism Cases Involving
Sftell'    ?r 31,0
1,  31.1?
 . . . . .muu 

.. 8.15
  .. 31.325
 DISCOVERY ISSUES RELATED TO STELLAR WIND
INFORMATION . .  1? .. 383
I. RelevantII. casesRaise-Questions about?Govern-ment?s Compliance with
. 335
33-5 .
336
'Crirni all Dunsmn Examines Discovery Issues (U). .. 340
A. The ?Infoi?rnal Process? "for Treating Discovery Issues in
International Terrorism Cases .. 341
B. Memorandum Analyzing Discovery Issues Raised
by the Stellar Wind Program WW) .. 342
C. Office of Legal Counsel and Discovery Issue (U) .. 346
IV. Use. of the Classified Information Procedures Act to
Respond to Discovery Requests (U) .. 347
A. Overview of CIPA (U) .. 348

B. Use in International Terrorism Prosecutions
Alleged 't'o Involve Stellar Windeerived Information

 - ui 3 8

 

 I
CHAPTERTEIGHT: PUBLIC STATEMENTS ABOUT THE
SURVEILLANCEPROGRHM  .3261
I. Summary of theDispute about the Program (U)  361
The New York Times ArtiCIes. and President Bush?s Confirmation
Regarding NSA Activities (EU) .. 363
Other AdministratiOn Statements (U) .I "7365
IV. Testimony and Other Statements (U)  36.6
A. 6, 2006, Senate JudiCiary Committee 
 a puny . . . . . ?no.9 . . . . 
B, Corneyi?s? May 15;, 2007', Senate Judiciary Committee Testimony
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91Gonzales?s June 5, 2007,. Press Conference (U)  .. 371
Gen-zales?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) I, ..  3-7 6
.F. Gonzales?s Follow?up Letter to the Senate udiciary
Committee (U) 377
V. OIG Analysis (U) . .. .. 378
CHAPTER NINE: CONCLUSIONS (U) .. 387
I. Operation of the Program .. 388

11. Office of Legal Counsel?s Analysis of the Stellar Wind?Program
 

Hospital Visit and White House Recertification of the Program (U) -

IV. Transition of Program to Authority

  IQ-DI396

 

 

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v11.
VII-I.

 

. Impact of Stellar? 01?1-  counterterrolji51n

 I a I 

Di??ccve?iy "and. ?Scrubbing? Is SUBS

 

   I-I 01run-d  

COnClu'sio?ri .406



 

 

 

CHAWER WE
am

On'October .41, 2001, three weeks after the terrorist attacks of
September 11,, 200.1," the President issued a- Top Secret Presidential.
Authorizatipn to theSecretary o'f'D'efe-nsei directing that the signals
intelligence: capabilitiesof the National S'eeurity Agency (N SA) be used to
 ?-preVent?further attacks in the United States. The PreSiden-tial.
Authorizations stated that an extraordinary emergency eXisted permitting the
use surveillance within the United States for counterterrori?sm
purposes", Without alcourt order, under certain circumstances. For over .6.
years, this Presidential. Authorization was renewed at approximately 30 to
 day'iiltEr-vais tonauthoriz'e the highly classi?ed NSA surveillance program,

which wasvgiven the cover term ?Stellar? Wind.? 1

Under these Presidential Authorizations and subsequently obtained
Foreign intelligence"SurVeillance Court (PISA Court) orders, the NSA
intersepted the con-tent of international telephone and e?mail
communications of 'bOth US. and non-US. persons- ?when certain Criteria
were: Inadditi?on, the collected vastuamounts of telephony and
e?m?ail meta data that is, communications. signaling ,mformationvshowing
contacts ?betizveen and amofigteleph'One numbers a    . a
no elu'd theeontents of the communieations. 

   
    

    

Within the Department of Justice. (Department orJustice 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 In
Title of the Foreign Intelligence Surveillance Act Amendments Act of 2008 (FISA
Amendments Act), the President?s Surveillance Program is defined as

the intelligence activity involving communications that was 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 (commonly known as the Terrorist
Surveillance Program).

Amendments Act, Title Sec. 301(a)(3). (U)

 

 

communications was referred to as basket The collection of telephone.
 dates?- including on the date,   dinette-1?1 a the
telephone call, the telephone number- ot the: caller, and the. number receiving
the.  as basket The collection of :eemail meta data 
?from,? ?beef and ?sent? lines of'an e?rnail, but not
the?stibje?t?'?line or content of the .ie~mail Was referred to as basket 3.

 

. Thegconite?ntxand meta datainformation was usedby the NBA working
 other  

    
  
        
 

 

A . ?addreeses'ha? Deer-1 ?tipp'ed? to the FBI. asaleadfsi the-~-vas~t
 36? 3 ?e whiieh-Were-disseminated to FBI field. off-ices for-"investigation or
otheractibni Some Stellar Wind-derived i?fOI?ma?on also Was disseminated
to the; larger Intelligence Community through traditional intelligence
-   

  

 

In addition to the receiptof?information from the program, the
Justice Department was involved, in the program- in other ways. Most
Department?s Office of Legal COun'sel provided advice
to the-White House  the Attomey General on the-overall legality of the
Stellar Wind program. In addition, the Department?s, Of?ce of Intelligence
Peli'ey  Review .(now- Called the Offices-of'lentellienCe in the Departmentis
National Se?onrity Division) worked with the FBI andNSA to justify the
inclusion of "Stellar Windederived information in applications seeking orders
under the Foreign Intelligence. surveillance Act  and when unable. to
do. so, to exclude such information from the ,applioati'onsi The Departments
NationelVSQeeu-rity Division (NSD) also submitte classified ex parte legal
filings in federal courts to address any Stellar Windrepm?ting concerning
defendant-s daring. disCovery in international terrorism proseCutions.

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 email
Content collection (basket 1), the President, Attorney General Alberto
GOnzales-,_ and other Administration officials publicly confirmed the

 

The larger Intelligence Community also includes components Within other
Department?s, such as the Departments of: Homeland Security, ?Tr'easnry, Defense, and
State; 

 

 

I existence" Of. this Pattofrthe Program. HoweVer?, the "othCr 
- - - A i - a .

The President-and other Adminis?tratiOn officials labeled the NSA

I ?cofl'le?ctiOn' of information that was publicly disclosed as ?the Terrorist
Surveillance ,Programf?althoug-h 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 
Wiretapping- Program? or the Sinveilla-nce -Program..?' As discussed
above, the. 'teChnica'l name for the program, and the terrnwe generally'use
throughout thi's'report, is the Stellar Wind program.4 

This report describes the Office of the Inspector General?s (01G) review
of the Department?s role in. the Stellar Wind program. Our revievir 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
pregram, and the eventual transition of the program from presidential
authority to statutory authority under FISA. The report also assesses. the
iuse of information derived from the Stellar Wind program, including
the. impact of the intermation in FBI counterterroriSm investigations:

 

I. .Methodology of DIG-Review (U)

During the Course of this review, the 01G condUcted approximately 80
interviews. Among the individuals we interviewed were former White House
Counsel and Attorney General Gonzales; former Deputy Attorney General
James Conley; former DirectOr Michael Hayden; FBI Director Robert
Mueller, former Counsel for Intelligence "Policy James Baker; former
Assi-Stant 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 officials, the FBI General
Counsel and other FBI attorneys, FBI special agents and intelligence
and senior officials in the Department?s Criminal and National
Security Divisions.5 (U)

 

'4 Stellar Wind is classified 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 officials generally mean non?FBI Department of?cials. This
(Cont?d.)

 

 

We attempted to-i-nterview 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 OLQ John Yoo, who drafted the 
supporting the legality-of the Stellar Wind program. Yoo, through his
Counsel, deelir-iediciur'requeSt for an interViCW. a .,

 

 also attempted to interview Whitelious?e, :offiC'i?als regarding the:
program, including; Andrew Card, former-Chief to President George
W.Bush.- We made our request for an interview: of Card both directly to 
Card and 'thrOu?g?h the Office of the C?ounselto the Presidentf(White House
Oeunsel?s Office). Card did not grant our request for an interview. 
Similarly, we attempted interview DavidrAddi-ngton, former Counsel to
Vice President Richard B. Cheney. We contacted the Of?ceof the Vice
President, but that of?ce did. not respond to Our reguest' 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. Hewev?er, the refusal
by White House officials, former Attorney General Asher-oft, and former
Deputy AsSistant Attorney General: YOU to be interviewed hampered our
ability to fully inveStigate the precess by. whiCh- the White House and the
Justice Department arrived at the rationale to support the
program. In addition, because of our inability to interviewA?shcroft, We
could" not fully determine what efforts the Department took to press the
White House for additional Department attorneys tO? be read into Stellar
Windro work on. the legal analySis of the program during its first We years

of-Oper?ation. 

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 varieUs senior Department and F1
officials, 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. 

 

?Stellar. ind-5d 
approximately?

assist-incur analysis of, ear

 

  
  
   

ads to.  field offices. This-databaSe contained
  56-?el?dof?ces, 
relaponses?from 'The?O?IGiused?
this :datab ass to, confirm. information it obtainedIthroughvinterVieWs- and 
investigatiOns. that were based. on Stellar 'Wind

 

information.

@rganization of this Report (U).

Chapter Two of this report provides of theeprimary legal
authorities" that'are relevant to 'the?~IStellar ?Windprogram. This Chapter-also

discusses the Presidential Authorizations that were. issued toappr-ove the

program.  LEGEQ-

Chapter Three describes-the inceptiOn, and yearly implementation of
the Stellarl'Wind program from 'lS-eptez?n?ber  throngh April. 2008. This
Chapter includes a description of the early OLE the?
legality of {Stellar Wind, how 'theprogr?am was. technicallyfimplemented, the
FEES early partiCipation. in the program, and the: FISH Court?s- ?rs-t
awareness or the program. 

Chapter Feur covers the: period from through May 22001.4
when the legal-rationale for the prO'gram wassuhstantialgly recenSider'ed by
the Justice Department. This Chapter details inpartioular the. events of
March. 2004 When the White House decided "to continue hie-program
Without the Department?s certification after-Presidential. Authorization.
During. this. time, Attorney General Ashcroft was" hospitalized and? Deputy
Attorney General Cjorney the pic?Wers of idle .AttOrney
General in his capacity as Deputy Attorney. General. Comey declined to
the Presidential Authorization approvng the program based on
legal advice. he received from OLC Gener?alJack-
Geldsmith, who questioned the-adequacy of the legal support for aspects of
the program. 'Comey?s decision prompted a significant di?Spute between the
White House- and the Justice Department, which resulted in White, House
Counsel Gonzales and White Heuse 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 officials to
resign over the dispute, and the eventual resolution of the dispute.

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 betweenJuly
2004 and January .2007. This chapter also summarizes legiSIation in 2-007

 

 

:af?d.  ?agsigged .tqquernize certain proviS'iOrI?S of FISA.

 

Chapter Six-discusses the use ?ofss'tellar Windiinformation by the FBI.
Itgdescribsfs- process by Which the FBI disse   rWincl?derived
leads-to FBI field offices under a program calls: 5 aswell? as the
impath? andgeffectivcness df?thetStelIaf Windprogram? to'ithexFBI?s.
efforts.  A

 

 

Eh'a?p?ter Beyer-1? examines ?'le Department?s  of discovery
$81133: rejlated?to Stellar information in. international terfori'sm
prosecutions. 

 
 

Chapter Eight analyzes 'tesfilnony and publicxs'tatcments about
aspects o?f-the :Stetl'larWind program by- Attorney General G?OnZal?es, 'We
assess Whether theAttomey General?s statements, .particula?yhis
testimony to the Senate-Judicialy Committee in. Februaly 2006 :andJuly
2007;; were falsie, inaccurate, or- n1islead_ing;.  

Chapter NineiCQntainS our conclusions and recommendatib'ns, (U1

 

 

I empires ewe
reensrraeernas; rep.

This ?chapter summarizestheprirnary legalzauthorities referred to
throughout this report concerning thetstellarfw?ind pregram; These
authoritiesiihdlude Article Section-2 of?i'the Constitution;  Fourth,-
Amendment "to the. (Constitution; the oreign Intelligence" Surveillance Act;
the Authorization for of Military Force Joint Resolution (AUMF) passed
after the terrorist attaCks of September ?11, 2001;, Executive
Order 12333,; and the?Presidential authorizations. Specifically authorizing
the-Stellar Other authorities, inCludi-n?g rel'eVantcrirninal
statutes and judicial opinions, are discussed throughout the report.

 

ll. Constitutional, Statutory, and ExecutiVe. Order Authorities (U)
 Article-II, Sentienz of the: Constitution (U)

Article II, Section 2-0?f1the Constitution,  Was oneof the 
authoristieS-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
Nail}; of - the Uni-ted States, and of'the. Militia of the-several
States, when called into- the actualiService: of the UnitedStetesg;
he may requiresthe Opi'niOn, in Writing, of?the principal Officer-
in each oft-he? executiVes Departments upon: any? Subject relating:
to the Duties. of their respeCtiVe Offices . . . .  

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, house's,
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 affirmation, and
particularly describing the place to be searched, and the person

or things to be seized. 

 

 

C. The Foreign Surveillance Act 

The-Foreign Intelligence- Surveillance Act 5.0 1801, et
seq.-, Was-enacted in 13978 to iiq'prc'JV-ide-legislatiVe authorization and
regulation all electronic sul'veillanee: conducted within the United States
for fereign intelligencepurposes.? 9.8, Rep. No. 959701., at 9 (1978), reprinted
 1957.8 3973,. 3977. Three major FI-SA issuesare severed in
this report. FirSt,;as dismissed in: Chapter Four, was Central to a
controversy .thatjarose..in late 207031andvea?y2004 When of?cials in the
'lOffice'of Legal Counsel and others Viewed FISA aspotentially in
cert-?iet with  legal rationale for at least one asPect of the: Stellar Wind
program. .OLC officials reasoned that if courts Viewed. FISA .in isolation, they
mightconclude that Congress intended- to regulate the President?s power to
conduct? electronic surveillance during wartime, thereby raising. questions
'abouti'the legality of aspects of the program. 

Second, after the was informed about the Stellar Wind
program in 2002, it require the gOVernrner-it to carefully scrutinize
eaeh  application to-ensure that no Stellar Windrderived information
wasrreli?edzup?o?n in, support of aiFlS'A application withOutthe Court?s
later Without its Consent. This known. as
?Scrubbing,? is- discussed in Chapters Three and Six.

 

Third, beginning in July 2004, the Stellar'Wind program was brought
un?dergFISA authority in stages, withthe entire program brought under FISA-
authority by Janna 9'00'97 InvAuu'stQOOT?and a'ain  Jul. 2008 FISH
Was amended .Sand

      
   
 
 
    
 

.estaia"mea?g?amw
., presidential authority "to El SA authority, as well: as legislation
subsequently enacted to modernize is discusSed in Chapter Five.

In the following sections, We summarize relevant provisions of FISA as
they related to the Stellar Wind program. 

ll. Overview of FISA 

FISA authoriZes the federal gOV'ernnient to engage in electronic
surveillance and physical searches, to use pen register and trap and trace

 

?53 Unless otherwise indicated, all referenCes to FISA are to the statute as it existed
prior to the Protect America Act of 2007 and the PISA Amendments Act of 2008. (U)

 

 

devices,? and to obtain business records- -to anguire inside theunited State's
foreign: intelligence informationhy,  some instances-, targeting foreign

of forelgn puma/Vere,7 FISA alsoperrnits the targeting of
foreignpowersand their agents who are 'located-cu?tSide :Uln-ited States.
Asia general rule, the F-I-SA Court mtist..-firSt an appliCation by the
government before'the government initiatesr?electrOnic. surveillance; FISA
applications nn-iSt identify or. describe the ?target? of the surveillance, and
 prob able Cause to believe that the: target is a ?foreign- power?
offa?fo?reign power?  that t?reac?r OfthefaCilitiesz or. places at

 the electronic stirveill'ance is directed is being aboutro be
used, by a-i-fcreizgn power Oran agent'of a foreign povver.?3' 50 U.S.-C.

85 

.FISA prov-ides .four exceptions to the requirement of obtaining. judicial
approval prior to conducting electronic surveillance: (1) for electronic
 directed at Certain facilities where the Attorney General certifiee
that the electronic surveillance is solely directed at communications
transmitted by means used exclusively between or among- fo'reign powers or-
from property underthe- open and eXClusive control of a?forei'gn power, '50
1802'; Where theA-ttorney General determines an emergency
"exists; and authoriZes emergency suiw.eil'1anCe until the information sought is
obtained, the after?filed application for an order is denied, or the expiration
-of  hours'from the time-of Attorney General USE.-
u? for trainingand testing p?UrpOSes, 50 U.S.C. 1805[g); and 
for 15 days following a Congressional declaration of War, 50 1811."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 defined in FISA at 50
U.S.C. 1801(a) 65 ?Foreign power? is defined, inter alia, as ?a group engaged in
international terrorism or activities in preparation therefor; . . . 50 U.S.C. 
 ?agent ofa- foreign power? may bea US, person, defined at, 50 U.S.C. 18016) to mean,
inter alia, a United States citizen or permanent resident alien. The term ?facilities? is not
de?n'ed?in FJSA. (U)

*9 The Attorney General?s emergency surveillance authority under 50 U.S.C.
was extended to 7 daysunder Section 105(a)' of the FISA Amendments Act of
2008. (U)

 

 

 

 

. Another FISA provision 
in electronic surveillance. ?under coler of "law except as au?mrized by
.staituft?tsl??  H.310. As discussed in Chapter Eight; 
 Justice?Departmentasserted in publicly rel'eased'l?egal  that
this prvisicn did not preclude? certain warrantl?e'SS ele?tronic: surveillance?
activities because such surveillance-was ?authorize'd?by? subsequent

legislative- enactments principally the AUME The Depertment- also

asserted that ?confirms and President?s
constitutional authority" to conduct warrantiess electronic surveillance
against the enemy during Wartime. (U)

FISA Applications andOr-ders (U)
 applications were presentEd t0 "the the:

Departmen-t?s?Qf?ce of Intelligence Po'licy'an?d spartment
  officialsfamiliar with the preparation and presents-titan cf .FISA

-.appliCl-aticns deSCribed. this proCess as extremely timeecdnsumingandllabOr

intensive. (U)

13th application must be approved and signed by theAtjt?orney
General Acting?- Attorney Generaltor Deputy Attorney Generaland must
include the certi?cation of a. federal. officer identifying; or deser-ibing the
target of the electronic suWeillance; a ?statement of the facts
circumSta-ncesi relied uponby the applicant to justify his belief? that'the
target is a foreign pewer or agent of a fereign pQWer  thatjthe e'leCtronic
surveillan?c-Je 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 infOr-mat-ion 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

 

?0 The Office of Intelligence Policy and Review becamea part Of the Department?s
National Security Division, which was created in September02006. Asof April'2008, the
Office of Intelligence Policy and Review was renamed the Of?ce of Intelligence. This
OrganizatiOnal change did not affect the FISA application process. (U)

11 FISA de?nes minimization procedures as

fs_]pecifie procedures, which shall be adopted by the Attorney General, that
are reasonably designed. in light of the purpose andqteclinique of the
(Cont?d.)

 

 

'highrra?nkin?g eXe'c-utiVe btanch o'ffiCial or OffiCials tieSig-natjed  the.
President :from..arnong those executive. officers employed  the. area of
national security or defense that the infermation' sought-is deemed to be
foreign ii?tell?ie?n'ce FirifO-i?mationl thatzsutih informatidrl reasonably
be obtainedhy normal investigative a ?significant 

i use? of the'surveilla'ncc is to obtain fora  intelli?ence informationlz


Idsfat lament).- (U)

authorize electronic surveillance of?U.Si.l persons for 9.0.-
daysl Orders may the-renewed'npon the/Same basis as the underlying--
order. SOL-1.8.0.  1805(6). As noted, -FISAeals.o.providesifor the emergenCy
uSerof electronic surveillance. When the Attoniey General reasonably
determines that an; emergency situation exists, the-1:136 of electronic
surve?iillanCe may be approved for a period of up to 72110an  under the
FISA Amendments Act of 2008-, up to '7 daystwithout a FISA order. 530
1805(17). (U)

Court (U)

The statute eStablished the review applications

and laws orders. The Court initially was composed of seven 

District: Court judge?s Chin-Justice: of   Si. Supreme.

Court: to serve staggered, non?renevvable 7-year termsl'3 

 

particular surveillance, to- minimize-the acquisition-and retention, and
prohibit the dissemination, of nonpublicly available information cancerning-
nnco?r-iant-ing. U?nited?States persons concistent'Wi-t'h: menace]; of the United
States to, obtain, proc?h'me, and disseminate 'foreign intelligence

i-nfOrIna?tion' . . .. . 

.50. US-C- r? 180-1?lhll1-l- W)

12 Asinitially enacted, required officials to certify that ?the. purpose?? of the
surveillance was tel-obtain ?foreign intelligence information.? the Uniting and,
Strengthening America by Pro?dingAppropriate T0013 Required to Intercept and Obstruc-t
TerrOIisrn Act (the USA PATRIOT Act) Was enacted in October 2001 and amended this
language in FISA to require only'that of?cials certify that ?asigni?ca?n?t purpose? of the
surveillance was to obtain foreign intelligence information. 50 U.S.C.. 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
Counterintel-ligencc Investigations Conducted bythe 6, 2002); In re Sealed
Case, 310 F.3d 717, 727 (For; Int. Surv. Ct. Rev. did not ?preclude or limit the
governments useor proposed use. of foreign intelligence informatiOn, which included
evidence of certain kinds of criminal activity, in a criminal (U)

13 To achieve staggered terms, the initial appOintments ranged from one to seven
years. 50 U.S.C. 1803(d). (U) 

 

 

 The number ofjudg'es .SerVingson the FISA Court was
increased to 1-1 by the USA. of 2001, 

1o; antheriaation forties of Menswear-:3 (m

On September 18, 2.001, in re?Sponse to the terrorist attacks of
Septembertll, for. Use of Military- Force
Joint Resolution. In conjunctiOn With the. Presidents
Commander?iWChief authority under Article of the-Constitution, this"
.legiSlation-hasibeen cited in support of the President?s authority to conduct
electronic:?Surveillance Without judi-cialuapprova'l. See, LegalAutho'riti'es
Supporting the Activities of the National Security Agency Described by the
Freeident, 1.9, 20.06 (Justi'Ce Department White Paper), at 6?17.
'The AUMF- states, in pertinent part:

To authorize-the uSe-of the United States; Armed ForCes against
these resplen-sible?for the recent attacks launched against the
United States. 

Whereas, on September 11, 2001,,actsof treacherousviolence
were committed against the United States  its citizens; and
Whereas, such acts render it born. 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 I
Whereas, thePrEsident 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 l, 2001, or harbored such organizations or

 

 

persons, in order to pretrent any future actsaoii international
terrorism. against the United "Statesby 
organiZatiOLHS or persons. (U)

Pursuant to this authority, the President ordered the US. armed
forces to inVade Afghanistan to combat a1 Qaeda terrorists and overthrow
the Taliban government that hadgiven themrefuge. (U)

 2004,. QLC took the positiOn that was "?expressly
designed. to authorize. whatever military actions the-EXecutiveldeems
appropriate to safeguard-the including the use of releCt'ron?ic
SuiveillanCe to detect and prevent further attacks. See, Office riofA'Legal
?Counsel Memorandum, May 6.,  at 1811.- 'In
additiOn, the. Justice Department asserted. in the 200.6 WhiteuP-aper that in
enacting Congress contemplated that a later legislative enactment
Could authorize. electronic Surveillance outside the-procedures setterth in
itself, and cited the AUMF as such a legislative enactrnent.- See Justice,
Department White Paper at 20-428, citingSO use. 

 

E. Executive Order 12333 

On December 4, 1981, IPtesident Reagan signed?EXecu-tive Order
112333.215 part of aseries. of legal?re-forms that followed abuses Of
intelligence?gathering au-??lority documented by the Church Commission in
the 19703.14 Executive Order 12333" placed restrictions On intelligence
collection activities engaged. in by "ExecutiverBranch 'agenoies, including the
NSA, while also seeking to foster-?full. and free exchange of- infermation.?
among these agencies.15 Executive order 152333 at 1-.1. (U)

EXeeutive- Order 12-333 pro?v?ides 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  technique for Whioh
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

 

1? See http:/ Volumes
5 and 6 of the Church Commission report address abuses of intelligencesgathering
authority by the NSA and the FBI. (U)

15 Executive Order 12333 was amended on .J uiy? 30, 2008, by Executive Order
13470. "This-iteport refers to Executive. Order 12333 as it existed prior to that amendment.

(U).

 

 

electronic surveillance, as defined. underzFIfSAg MUSE be; Conducted gin
aeCo?Ei?a?QE Wi?lFiiSAe-m (U)

 Order? 12333 prohibits :ofvfar?igaintelligence
informaticin by: -?a1;ithorized .[agencies] cf-?th?- intelligenceCommunity"  .. tor?-

I

the purgese "of acquiring information; consenting-the:domestic activities-sf
United?Stgatespersona? Id, at  

 authorizes ?le's-tell? .. 

   
 

     

the?1ega}1 ?rationale?'adiranc?ed'ifor ?thilsri?eiietnptiOnw
Authorizationfor Use of Military Force and 
Commanderein?hief pOWers. gave the President 'tlie~autholfity- sash
information, nbtwi'thstanding the FISA?fstatute.  I 7    7 

Itlti Presidential Authorizations (U)

The: Stellar Wind program was. first authorized by the President on-
Oddb?e?r 2-001, and periodically reautho;ri2ed by the?President through 
series of'do'cuments seemed; to oiefsnse ?ifititleci -?Pras?idential
Authorization'for' Specified Activitiespurj?ng a, 
Limited Period to Detect and Prevent Within the: United
States" (Presidential Authorizationor Authoriza?b?hv A=t0ta10f 4:13
Presidential.Authorizations, not including modifications-and related
pro?ciential memo-randa, were issued over the duration of this Program from
October 2001. through February 2007.17" "Each Authorization di-reCted. the

 

'15 Brier" toSeptember 11., 2001, Executive Order 12333 and FISAwere generally
viewed as .the;principal;governmg authorities for 'cond11Cting? electronic surveillance;- For-
0.00 the reported to Gengress that

(U) The applicable legal standards for the collection, retention, or

dissemination of information concerning Us; person's reflect a careful

balancing betWeen the needs-of the government for snob 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 Sunreillance Act. (FISA) and Executive Order
(13.0.) 123333 Congress and the Executive have codified this balanCing.
(Citations Omitted.)

Report to Congress, Legal Standards for the Intelligence Community in Conducting
Electronic Surveillance (2000). (U)

17 The Presidential Authorizations were-issued on the-following. dates: October 
2001; NoVember 2,2001; November 30, 20.01; J-anuaiy 9, 20002;; March 14., 2002; April 18',
2002; May 22, 2002; June 24, 2002; July 30, 2002;8eptember- 10, 2002; October 15,
2002; November 18, 2002; January 8, 2003-; February 7, 2003;. March 17', 2003; April 22?,
(Contid.-)

 

 

    

 

Secretary of Defense?to ?use, the capabilities- .of?theDepartmentof Defense,

Iizl?ixelndieg;but notilim'itedto the signalsintelligence capabilities- of?the-

Natienal'seeurity Agency, to intelligence bye?l?ectronie

surveillance? provided. the saweillancta met Certain criteria. The epec?ic

criterlaaredescribedin detail in Chapters Three and of this repent.

A. "Types of collection Authorized 

The scepe of collect'mn permitted under the Presidential
Authorizations varied. over time, burge?nerally? involved intercepting-"the
contents-of- certain telephone. cal-ls and re~mails, ands-the collection ofbulk .
telephone ande~1r1ail meta data. The. term ?meta data? hasheen described
as "?inl?errnation about information,? As 'used'in the Stellar Wind program,
for telephone calls, meta data generally refe1"ssto informa?on?
(the originating and terminating telephone numbers, and the date, time; and
duration ofthe call), but notrthe content of the call. Fer e?rnails, metaidata
generally refers to the ?from,? ?bee,? and: ?sent? lines of an ?e~mai.l,
but not? ?Subject?? line orcontent. -  -

 
    

 

The information collected through the Stellar Wind program fell into
three categories, often referred to "as-?baskets?:
a Basket 1 (centento'f telephone and 

a Basket 2 met-a. data); 

:gw: A g?

 

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 2004;
September 17, 2004; November 17, 2004-; January 11,- 2005; March 1, 2005; April 1.9,
2005?; June 14, 2005; July 26, 2005; September 10, 2005; October 26, 2005?; 'DeCem?ber 13,.
2005; January 27,, 2006; March 21, 2006; May 16, 2006; July 6, 2006; September 6., 2006;
Ottobe'r 24, 2006; and December 8, 2006. The last Presidential Authorization expired
?FEbmarj'y 2007. ?I?here were also Lwo modi?cations of a Presidential Authorization and
one Presidential memorandum to the Secretary of Defense iSSUed in connection with the
Stellar Wind program. 

 

 

 

 

 as  mes; a; ohm-m [memes 

as themes moi-PrimesAuthorities ram:

.?Inthis-seotibn, We describe certain features: common to  
Presidential Authorizations Each of  Presidential Authorizations
iricludedasfindingyto the effect that?ter-rOriist groups-of global reach,
=polssessedaitheintentand capability to saittaohthe 1:Uniteci?Stereos, that 
extraordinaryemergency continued to exist_,_ and: that these-reircumsrances.
?constitute ian..ujrgo1:ist and sompeLlihg governmental interest permitting,
electronic: surveillance within, the Uni-ted 'States for counterterrorism
 Witl?OUt -- 

The primary authorities-sited"for the legality of these electronic
surveillance, and related aetivities were: Article TI- ojf the Constimtionand the
Authorization for Use of Militauy Force Joint Resolution. The Authorizations

 

further provided that any-limitation in Executive Order 12333 or'any other

?Pr?-Sidt??ial? directive inconsistent With: the PrCSidentiajl Authorizations shall
 [to      
authorized under the Stellar. Wzind?progra-m.  

 

Each Authorization also included-the President?s determination that
seereoy necessath ?detest  prevent acts of
terrorism against the United States]? the secretary Of Defensiewas. toaster
notifi'oa?on' 0f the Authorizations outside of the Executive Branch; antithe-

astiVitijes carried out pursuant to them. The President also noted his

intention, to inform appropriate members of the "Senatexand the House of
Representatives-1 of program ?as seen. as. I judge that it  he done
With national defense needs? Some Presidential Authorizations
deisoribec'i to members omegre-ss and PISA ?Cburt judges.

The Rea-uthori-zation Process (U)

The PreSide-ntial Authorizations were issued at intervals of
approximately 30 to 45 days. Department officials 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 oo].leetion.18 Steven Brad-bury, former Principal
Deputy and Acting Assistant Attorney General for the Office of Legal
Counsel (OLC), said that the main reason for periodic-ally reauthorizing the
program was to ensure that the Presidential Authorizations Were revi'eWed
frequently to assess the continued need for the program and the program?s:

 

1.3 The officialswho signed. the Authorizationsinduded the Attorney General, the
PreSi?dent, and the Secretary of Defense (or other high-ranking Department of Defense
official), [1339-13-9]

 

 

?trainee  perigee for each Freeiential Authorization drew to a $10862; 
 GleCeIiiTalIntelligence@3611), and as: 9f June 05;,  Dimmer of"

National{Intelli?g?nCe prepared. a threat r-aseessment :memm-endum Efbr

the President scribing-glamential terrorist  to the   and 
,aujtlinin'g;intelligence gathered Stellar Wind programa?nd other
.means-ednr?ing; the preteens- Authorization period; The.  '(andslater 
 and.the' Secretary 0f Defe?ItSe reviewedthese m'emoranda and: signed-a
reeditlmendation that. the program he re?authorized.. 

 

Each: recommendation was then revi'evted by the OLC tie ass-ess-
Whether; baee'tten the: threat assessment andihforma?iom gathered from
other :seurees, there was ?a Sufficient factual basis demonstratinga threat. of
terreriet-?attacksin the United States for it to continue to be reasOnable
Under the ;.s.tandard?s of the ?FOur-th' Amendment for the President to.
to authorize the warrantless searches: involved? in the preemin-
then adVised the.Attorney General whether thac??stimtig?al

csf?reasoneblenesS hadbeen met and whether  Presidential
 peulgsl be certified ?as to form and legality."

   
 

 Approml ?as to farm- and legality? 

AS ?Otad?aboveg the Presidential Authorizations Were ?talerreved as to.
form  legality?:- by the: Attorney General or other Senior Department
after the review and Concurrenee efvthe The lone
this Practice was the: Mercer 1.1, 2004. AuthorizatiOn which we

    

there was no legal requirement that the Authorization-S be.
certified ?by'the General or other Departmentof?ciah ?Fbrmer'
aeniorDepartmentofficial Patrick Philbin told us; he purpose
for 'th?e?cetti?cation was togive "ti: th it
not ?look; like .a 150' me excretion 

      
   

 

3 Bra 'us that the Justice Department certi?cations:
aewe . ?fficial confirmatiOn that the Department had determined that. the.
acti'xtiti-es Carried out under the program were lawful-

     

Former Attorney General Gonzales told us. that certification of the-
?pregram ae? 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,

 

  

 

he  the  was" being as.de tact-o; .somethixig'it- hati; nOt- lama; 

bc?foi??l;liand   NSA 131: he? Gem
  I  '1 ?rm-am.

      
      
  
 
 
 

       

     

 

 
 
 

 
 

  ti 'tl'i"

  

 

 
 

Sahara

appitbv'ali; of  program: have? valu? ?pm 
     

 

 

. . . cassette taste 
      

{seems-nests Facet THRUGH semesoeey  . 

   

Thisehapter describes the early operation of the Stellar Wind
 The?iv-e. section?s-of the chapter'cover the time?- period from,
September-2001 to: April 2003".  

In SeetiOn I, we provide a brief overview of the Nati?ona'ljSecurity
Agency-  the inception of the, Stellar Wind pro'gtarn, including a

I

description of  legal authorities reliednupon to support- the program and
thescope of. collection authorized under the Presidential Authoriza?OI-IS- 
Sect?bn We describe key as sets of the Nessa-31:14lemmtatienof:the.

        
  
  
 

 
  

.. hetechmcal
pm" 6 til to .fWandyZing and

disseminating? the: information collected. In "Sections ill and IV, We describe

the; and: the Office of Intelligence Policy andReView?s early knowledge
strand, involee'mentin Stella-r Wind; In Section V, We describe measures the
implemented to improve its management of information dCIiVed from
the  that the FBldisserninated to its?eldt?oftiCES.

 

- 1L. Inception of. the Stellar Wind Program  
 A. The. National Security Agency (U)
 The was, established on October 24, 19.52,. by President Truman

as a separate'agency within the Department of Defense under the direct-ion,
authority, and control of the Secretary of Defense. Bee Presidential.
Memorandum to the Secretary of State and the Seeretai?yof Defense,
October. 24,, 1952. By Executive Order 12333 (December 13981?), 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.l9 (U)

 

19 Signals intelligence is de?ned as:

i 1. .A category of inteliigence comprising either individually or in combination
i 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.)

 

    

 

ThezNSA?s?two primarymissions-arcticproteCt  (government 
information systems. and to; colleenptogcesS, "and; dis_semina-tef0reign signals
intelligence information! Tlii?"?twoifcild' missionis- 
organiZatienaLl:Structure, whiCh; consi'Stsvo-f two: operational diree?tOrates;
The information .A-s?Surancel Directorate; Which conducts. defensive -
information, operations to p'roteCtgin-formaticn infrastructures:critical to the
United Stat-ea?   and magmas Int?lli?gence.
Directorateji-SID)? whiehcontrols foreign;intelligence Collection and
prOc?eSSingac?ti?ties for  

The *SI'D'isdiVided-into three major componeIiits, two of'w?h?ich 
Analysis  Production . and DatazAc?qui'siti?on are-relevant to the
Stellar Wind program. The work of these. Components? With respect to the
Stellar Wind program is discussed in. mere detail in. Section 'Ilibelow.

Bi". Implermentationoithe Pro-gram I.  I. 
November 2001?) We 

George Tenet; the at thetirne,
mentionedthe modification of these NSA collection activities during a-
meeting with Vice President Cheney shortly after-the September 11 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, whoresponded that
there was nothing further the NSA could do without additional authority.
ACC?o'rding to Hayden, Tenet asked hiin .a short time later What the NSA
could do it'- additional authority was provided. 

 

Department of Defense Dictionary of Military and Associated Terms, Joint Publication 
484. 

 

 

Hayden consulted With eXperts-v frOm the and attorneys from
Gene-ral- C?un?sel about how th?? its
collection Capabili?es consistent with; consideratians of operational
Usefulness, technical feasibility, and-legality. Hayden Said: 11?  attended
a meatjng' at the White House:- to :diSCusSh'O?W  signal-.5: intelligence-
collectiOncapa'Eilities could- be modifiedto respond ?to: the September :11
attacks}, i a .

Hayden. told us he'highl?ightad atthis meeting. Fir-st,
?H?ay?en?s'tated atthe meeting that: statuit??si.applicabilityto slimming
'v  trai'rii?? 
 interc?apt commumca?b 

Accordi'n. .: 

 
      

     

     
    
   
    
 

 

    

 actixriti'es A

 I  githoufhaving tol?r's. obtain ISA-Court;

autho?zatiomg?i 
The seCond isSue Hayden'highlighted at the meeting concerned the

matadataarssotiated with. telephdnijc and ?e?mail communications.? Hayden
said that obtaining access to the. meta data; of- ?COmIn'unications to and from

 

20' The _FISA_statute- defines ?Winefc:o_mmunication? as "any communication while it is
'beingca?rriEd by awire, cable, 'furhi'sh?dlor'operated byany perstj?n
.engaged?iasa summon maker in prpvidin?g gr oppratin?g Such facilities for?ithe- tranSmisSion
for?i'gn 00mmuni'cati0ns.? 50 1801(1). By its terms,  governs
,oftwire-communicatiens to or from persons- in th?Un s- 

C'uis?itibntoclzcurs?inr the Unitedstatasc. .?See? ., us @118 :1 11(2),   -- -

     
  

 

 

the-United States-{as-wellas 

   

would Significant-1y enhance the analytical" capabilities. -

I Hayden said he attended: two additional meetings with. Vice President
Cheney to discuss further Collect-ten capabilities couldibe
eXpanded'along' the lines described-at the White:Heusesmeeting. Vice.
President Cheney directed Hayden to Inc at with the CDunsel' to the Vice-
David-Addington, to Continue: the. Which, Hayden. said
lie-did; Hardeni?dd?istbn dre'fted'thei 
.Authorizationforxthe Stellar Wind program'based on; these 

 

The Stellar Wind prOgrarn officially came into existence on. OCtober-4,
2001., when President Bush signed the Presidential.Authorization d-ra?ted by
Addington. TheAuthorizat-ion directed the Secretary of Defense to employ
the signals intelligence capabilities: of the NSA to cellect?certain-foreign
intelligence by'el'ectronic- surveillanCe in order toxprevent actsof terrierisrn
within the" United States-23 The PresidentialAuthorization stated that, an
extractdinary emergency existed because ot' the .Sep'tember ll attaeks,
constituting an urgent "and Compelling governmental interest permitting
electroniQSurveillance within the United 'S?tatesfor Connterterrori?sm
.pu-rpeses without judicial warrants :or Court Orders.

 

ACCESS to the.?Stellar Wind program was very restricted.
Former- White House Counsel-and Attorney General Alberto Gonzales told
the (DIG that itwas- thePresidenth d?e?cis?idn to keepithe program a ?close
hold.? Genzales stated that the President made the-'deciSion oniall requests
to read in non+operati0nal per-sons inc-hiding Justice Department officials,
 that as far as he was aware thisdeeisionmrnakingauthority had not
been delegated either within the WhitefHouse or'to other agenCies
cencerning readwin decisions for Operational personnel, such as SA and

 

?39 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 someonewas
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 I?[ouee meetings, and further stated that in the immediate
afterrhath of September 1 1, 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,
farmer Attorney General Ashcroft, and John YOU, We do not know what role if any the
Department played in. draftng or reviewing the ?rst Presidential Authorization.

 
  

'23 Theprograrn was given the c?ov?erte?ri -
Which time the cover term. was changed to ?Stellar 

 

 

 

HoWever,,as indieatezcl in the  Office.of?thelnspeetor
Generals report on thePrersident?s SurVeillanCei Pro gram 01G- Report),
decisionsto read?in. NSA, CIA, and FBI operationallpersonnel Were made by
thefiNS?Ar According to the  Roper-t,  Dir-ester" Hayden needed
White House. oppress-1? to read. in members of Congressj Else-Court judges,
the LNSA Inspector Generalrand others. "See. DIG Report at  

1.. Of?ce 
Momma-3153 

In this section, we summaries the initial legal memorandafrom the
Justice Department supporting rth'e- legal; basis for the Stellar Wind program,
 we; describe the key aspeCtjs-of the first 'PreSidential Authorization for
the program. a .l  

 

a. Hiring :of John Yea: (U).

Deputy'Assistan-t Attorney General John was 'IBSpOnSible? for
drafting the?fir'st Series? of "legal memoranda supporting the program.25 As
notectaboxre, Yep was. the only Stellar Wind
pregrarn from thegprogram?s inception until he left the Department in. May
2003 Department, of?cials: read into the program
until after Yo'o?s. departure were Attorney General Ashcroft, who was-readin
on Counsel for Intelligence Policy James Baker, who

Was read in  January 11,, 2002.27 

 

24 Gonzales testi?ed before the Senate Judiciary Committee on July 18., .2006,- that
allelecirsions' that are non?operational in terms Of ?whos?hasaocess to the program,
the ?Uniitedetatesmalres the decisions,- becausethis?i's suchanrirnportant
(U)

95 The Office of Legal Counsel typically drafts memoranda for the Attorney General
and the Counsel to the. President, usually on matters involving significant legal issues our
constitutional questions, and in response to legal questions raised by Executive Branch
agencies. In ad?ditiOn, all Executive Orders proposed to be issued by the PreSident are
reviewed by the Office of Legal. Counsel as to form and legality, as are other matters that
require the President?s formal approval. (U)

2?5 The process of being ?read into? a compartmented program generally entails
being approved for access to particularly sensitive and restricted information about a
classified program, receiving a brie?ng about the program, and formally acknowledging the
brie?ng, usually by signinga nondisclosure agreement describing restrictions on the
handling and. use. of'infomiation concerning the program. (U)

2? 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 prOgrarrl 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. 

 

 

Jay ?Byhee, the As General for the Office: offLegatl
ifitoinNovemtierz?OO1 through March 2003, provided the OIG with
backgrOUnd infermation on how Yoo Came to be inVoivied in national.
security- iSsues on behalf ofthe OLC. Bybee?s'nomination to?be the OLC.
Assistant Attorney General was announced by the White-House in July
2001. By?bee-was not Cenfii?irned by the "Senate as the Assistant Attorney
General until late Goteber 20011.93 For-several weeks after-the.

September 11,, 2001, terrorist attacks, Bybee remained a law professor at
the University-of Nevada~Las Vegas, andywas sworn in as OLC Assistant
Attorney General in late November 

Bybee told us that he traveled to Washington, D.C., someij'nm?in July
2.001 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 o?hn Yoo was already under consideration far one of the OLC. Deputy
General slot-s. Bybee said Samp?Son askedhim Whether
wotildjagree to have Yoo be one of his deputies. Bybee said that he knew
3500? only by reputation but was ?enthusiastiC? about the prospect of having
Yep. as" a. Deputy. Bybee told the GIG that he regarded Yoo a's?a
?distinguished hire.? B'ybee said that after speaking with Sampson he-calle?d
Yes and asked him to work at OLC as a-D'eputy Assistant Attorney General.
(U)

In addition to speaking with Yeo, Bybee interviewed other prospective
Deputies, and hired several individuals, including PatriCR Philbin and
EdIWhelar-i, for The White House recommended, and
Bybee agreed, that Whelan? be designated Principal Deputy. Bybee stated
 he?knew Yoo? would be disappointed. be;cauSe Yoo had?wanted that
position, and Bybee said that Yoo ?did-nit 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
pertfolio.? 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)

 

?35 Bybee told us that Daniel was the Acting Assistant Attorney General at
this time. (U)
29' 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 programafter John You

left the Department in May 

 

 

. b65311: workingzi? em in? ?1111372001 and that all
of the Deputies-were in place before; Byb?ee began Sel?vi?g?a?s head- 'O'fi? the" Om


.7 . By?e the Stellar Windprogram and
further  0171 310?? Came to draft OLC opinions on
the, program. Said that YOU had reapoaaib?ity'for aural-rising
the related to national security "issuesby the time. the

attaCRS of September Bybee described. Yet};- as: ?articulate and

brilliant,?  also :Saidlhe had a. ng?Qlden resume" Was ?very W611
connected? in the White. House. He sai'dlthat from ?iese
rconnee?ons,  addition. to: Yoo?s: scholarship- in the area of executive
authority during-wartime, irwas-not Surprising that Yoov?became theWihite
ngseis guy? on national scouri-ty matter-s. (U)

 Yews LegalAnaly?sis of a Warrantiess Domestic
Electrnic Surveillance Program 

Before the, start of  Stellar Wind program under the October 4,
2001-, Presidential Authorization, Yoo' - drafted a memorandum evaluatingthe
legality of- fa ?hypothetiearl?electronic. stuveillanceaprolgrarri within the United
States-to monitor ?Cemm?nieations or pot-onti?al terrorists. His
 dated September-1.7, 20021, was addressedato. Timothy
 DeputyWhitefHouse Counsel, and was 
,S-ta?dardas on Element-1c; Sm?eillance forCounter?Terro?ism

 
 

  
  

 

 

 

30 As noted above, Y?oo, Ashcroft, Card, and Addington declined or did not respond
teem and we do not know how Yoo came to dealdi?rectly with the-
White l-Icimeeon legal issues surrounding the Stellar Wind program. In his book ?War by
Other Means?? Yoo: wrote that adeputy 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. speci?cally to supervise Work; on- [foreign affairs
and national securing/1.? J'Ohn Yool, War by Other Means, (Atlantic Press, 2006),

19.20. 

 

 

 

AssdiSGu?SSed?be?low, however,- his description of how communications would be
collectedgand- usedunder the program diffeIed in key respects from the actual operation of
=the?te11arWin_djpr0gram. in fact, in aJanuary 23, 2006, address to the National Press
Club, former PISA. Di-rectOr Hayden statedr?ifW

Let me  for afe'w minutes also about what this program is not. It is not a

drift net-over Dearborn or Lackawanna or 'Freemont grabbing conversations
thatwe then sort out by these alleged keyword searches or data-mining tools

..: 5, - 

    

 

     

 

 
 
 
 

 

7 7 7 43, an eXampl'e of how the October 4' memorandum did not
?refleettheStellar Wind program as "itwas actually devised and operated by the NBA. The
Stellar Wind'program did not c0ntemplate bulk collection of content communications. The
only'information collected in. bulk under the program. involved telephony and email meta
data. This meta data was collected in bulk so that it could then be queried based on
telephone numbers or e-mail addresses associated with communicants with known or
suSpected links to international terrorism. These telephone numbers and e?mail addresses

 

 

17  Octobcr 4 
Speci?ca?yto the  pmgr?am, but rather to a ?hypot?etical?
=ta11ctd1nifzedao.rbroadly scoped domestic 
Asdiscu?sscd below,  ?rst ?Officta of Legal Counsel opinion explicitly-
(liege-titty of the Stellar Wind? program: was not ?dzaftcd'untili
aim-{the program had been. by Pi?csidciit Bosh on
October-41:, 2001:.  - 

   

he didnot believe 
memoranda?l?y addressed the White 'Ielousc?c under-standingaof the Signal?
Wind program. Rather; as tics.cribed memorand?aaddressed; the
le'galityrofa ?IWDOtheticalP acmestic suwoillancc Program rather. than the
Stem? Wi'?alpi?dgram as: authorized by ?le Presidaht and :carr'i'ed out by the.
Gonzales also 1Old 113?- that he belioveclt tl?li'csc??rst two
asl?lawful activ??ies that (War-c broader than?th?sc;
Camediwt5-u11c1er Stellar Winds and that ??icsc opinions (memo?
 

?fcsi?entialAuthorization. of October 200211

 

On Qctobcr 4, 1205011, President iss?ucd the first of 43 Prcsidcntial"
Authorizatith for the Stellar. Wind program. ?l?he?r?Qctober Authorization
of to ?use the capabilities ofthe 
:of. "inducing" butnot limited to the signals: intelligence oa?abili?tiesi
of the?: National 'TSccuritjr Agency, to- foreign intelligence by 
provided the suweillance was intended to:

a communication [including but notitmitcd to a wire
communicatio?- carried into-or out of- ?Unit?cd  tates .,

  
  

   
  
 
 

5a party to such cotmmunimtion its a group
on International terrorism, or aetivittcs in
preparation therefor, or an agent of such. a group; or

acquire, with respect to a communication,
header] routc-r/ addressmg-type information, including
telecommunications. dialing?typo. data, but not the contents
ofthc communication, when at least one party to such
communication is utsidc the United States or (ii) no party to
such communication is knOWn to be a citizen of the United-
Sta?tc?s.  

 

 

3'5 Gonzalcs?noted thatchqu White House Counsel'Timothy? Flanjgan, the
recipient of the first You memorandum, was not rcad'into Stellar Wind. W)

 

 

Iii-Shaft, to: i??tef??pt"th?9tb?t?m?Gian?I
cam-municiatim, from; 
.SStates, Where probable? came eXi?tga'cl? to b? ?maozf theacommuigigams-

 
     
  

 

 
 
   
   

?TheA' hi' izatione'fa _oiallbw?d
acquire a one. end Uf-t?ei

,foraign qr! was known to. be} a U13.

   

 
 

 Authorization stated mat it relied primarilyonp?r??lc?i o'ffthe
?QonStimti'on 311d the recently Passed 1?01? the USE- OF
 Force (HUME). to. support the The.
Au?tihor?iZati-?on also stated that the Presidem?s directive was basedf ?on. $11:th
assessment-s. indi?ating that t?rrori'st .groups: remained data-mined to-atta?k
in Ilj??lfl?itedsSt?atES; T116 Authorizatibn Stated that .it'wvas_'t0 terminate ?th
 from the date of'its? eXecut'ion'.



AS SeveralOffiCe of Legal Counsel; other Deljartmentrand 
nffigiais in- addition to: allowing the imam-caption of the.
content . afscommuriica?ons into  0r out ofthei Uhi?tedi' States, the ?tEI'al term-s.
of'pamgraph of  first Authorization would haveaJ-lgwed NSA sto?
 the rc?11t?ritof purely Dirac-toy
Hayden. tOld 1133116: did not realize, this until Sp?CCi?c?lly? raised the
subjectiduringa meeting the two: had to discuss ?rst:
ACCOrdi?fr?ig to ayden?, he, told that. he  not "Want
tha NSA ?Conducting such domestic interceptions and'citcd threeareasons for
this. First, he said the NSA was a foreign intelligence agcmiy, Se?chd} the
icojllection infrastructu'ra would. notesupportihc, :Cb?ec?mi qu; purely
domestic-1 communications. Third, Hayden. said-he Would-require such a
high avideniti'aiy standard to justin intercepting pm?ely domestic
communication that such cases might just as Well go to the FISA Court}37

   

 

 

 

Hayden said Addington. did-not 131135511176. mm cm the, subject and; simply modified
the next Authorization to pr??Vide that- the NSA mayun-Iy interCe?pt' the Content bf
communications-that. originated or ?tiermi?nated in the ?We discussihe
modificationssto the; Autho?zation in the next part of this chapi?r;

 

 

 

As- a result, Hayden said theeNSA did not enerci-se the apparent
autho-r'i-tyiin the fi-rSt Authorization. to intercept- .d'omestiCetoadomestio:
communications, Goldsmith stated-that Hayden-ls positionthat the SA not
involve itself domestic spying related back to ?getting ina lot of
trouble? for it_s.sabu_scs during the ti97?0?sr Iii-addition, former'Deputy
Attorney- General Corr-icy told us. that Hayden had Said he Was  to
?W?lk??pjrtoith?. line,? but Wauld' "be careful ?not to get. chalk On [his] shoes,?

 

As discussed above, subsection.(b) of paragraph :4 of the Authorization.
covered the acquiSit-mn- of both e~mai=l and telephony meta data Thee-mail
 data. included the ?to ?from,?  . .

?bersz
'bt n'rthe. ?.aub'ect? line: or content-ofthe ?e?mail.
2 21'  -  

  
   
   
 
 

    

  

  

 

'elephony  data- acquieition
nelu'ded the dialing Information from telephone: bil?ng'dat?a?, such as. the
originating terminating: telEphone number and the date, time, and
duration of?the? telephone calls, but not the content of telephOne'c'allsi
Under the Presidential AuthOrization, collection of both e~rnail and
telephony meta data was limited to circumstances in which-one party to the
cemmu?niCation was outside the United States or no party to the
 was known to be citizen.   -   

    

 

Attorney General Ashcroft approved-the- first. Presidential-
AuthoriZatibn as to ?form and legality? on October 2001.. According to
NBA-records, this was the same dag;r that Ashcroft was verbally read into the
StellarWind program. Daniel Levin, who in October 2001 was both a
national security counselor to Attorney General Ashcroft and FBI Director
Mueller-?3 Chief?of "Staff, told ustha't, 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
hedid' not have. an opportunity to advise Ashcroft about the Authorization

before Ashcroft signed it.

ames 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

 

3-3 According to Hayden, Addington. typed the Presidential Authorizations and
personally couriered them around for Signatures. However, the was unable to
determine Whether presented the ?rst Authorization to Ashcroft for signature,
because both Ashcroft and Addington declined or did not respond. to our requests to

interviewr them. 

 

 

'AtithoriZatiOnxon the spot that
When heleamedwthere Was no memorandumgfrom the Of?ce effL-egai
Dunsel 'Goncerriin-gu.the program, Levin told Yea. to: draft Jane?-

     

L'eviilis account. to us- of You draft a?xiiemorandurn
of the program "differed from Baker?s account
iLeveintQId: ins-that he .sla-id- to: Ashcroft "that it; that Ashero'ftvirae
theorin Justice: of?eiel amid that for AShcrefte . 
pregtecltion'  advised Ashcroft-to have: a?other Department; official-read-
 the program fer th?? purpose of?providin'g. advicenon  refit-he
program, L?e-Vmisaid he learned that AShcroftj?was-able to get permission
from the WhiteHouse to: hate one, other person 113' ad? into the 1 program to
advils?esAsheroftt although Levin twaslnotncertain how Game. to .be-kselec-ted,
as As discussed below, us ?oat it Was the-
Presirien?tis :?leciision: to read John Yoo {into the program.

 

0. Presidential Authorization is Revised and-the Of?ce of
Legal Counsel: Issues-Legal:Memompda- inesup?mt offhe
Brogram (NovembergQOl through- January 2002]

 

1-. Presidential Authorization ofNeveniber 2, 2001

On Noyembe?r 2, 2001, with AuthorizatiOn set to
expire, President Bush signed a-seeongd Presidential?uthorization. The
second Authorization relied upon the same authorities oft-he
PreSident?sactions, ehie?y the Article and
The second Authorization cited these-me. findirigsin a threat
assessment as to the magnitude oft-he potentialithreat?s; alnd likelihon-
of'thei'r'oCcurrence in the future. However, the scope-of au?torized content
collection and meta. data acquisition: was rede?ned by adding the italicized-
1anguage below in paragraphs 4(a) and 

acquire a communication (including but not limited to a wire
communication carried into or out of the United States by
cable) for which based on. thelfactu?al and practical
considerations   
to believe that

 
     

   

 

3'3 By October 4, 2001, You hactaireedy drafted tWO-legalxa'naiyses on a hypothetical
'warrantless surveillance program and therefore already had-?10113 some work related to the
program prior to October 4 when Ashcroftwas read in. 

 

 

     
 

.   tech-commatermite .
.mzmateCi out?elder; a parity
. t? 

 
  

 .

:terrme?ti;   preparation :?iet?ioe or  agent
int'Suc-h agwm Or

it  respect to 
mciltiding;
  but  
   
    
    

 or 1011- 'thefacmal undetected-l;
life-en 
get; there sate specific and :,artiee1abl_efeets*
 redeem-to believethat-sueh2c0mmunieatien i-eldt?ei-tb
 terrorist activities: in preparation therefen

 

  Elaeguage ither?fbr?' Qhaneedlir:   res-perms. ?th'eseepe:
    I    
Feet,-  tipr-Qbablge: bau'se- to; weave ?staedardifer  .cefl-Iect?ienef 
 eelepheneecente?t- ?for which;has-adieu. the  
?tmnsidera?ons of life Teas enabl?ezand 
pmdem?ersnes act, grounderto. believe   3* 
  was: made by Add-teeter; becausehe believed? 
?prebelescauee? Was. ?top freighted?? with usage opinions; 
  emerge   to more-scoliequial languagereleo' was matie 
becausl?eqthe  was" to be app?ed nen?lewyers at the NSA. 

 

?such

a: 

applied t9 the reasonable better" that
?Cemmunica?bn ,Griggineted or terminated c?iu'tside the nited States- .. .
The:   therefore eljmiihate?dthe au?mfity  exjeted. in the ?rst.
Authe?za?tibn to intercept the content of purely domestic communications.

 

Third; the Second Authorization permitted the acquisition of a third"
category of?e?ma? and telephony meta data. 0171? the factual and
practical, considerations of eVeIfyday life-011. which reaSenable and prudent
perseneract, there are apedi?c and ar?culeb?le facts-giving "rest-sen to believe
thatsue-11eomniuniea?en relates t0 internati?hial 'ter'roriem, eras-kiwi?esin
preparatien ?im'efere-F This language tepreSen'ted an expa?s?ien of meta.
data; caneetfion authority tojinclud?e meta data p?erftziining?tte Certain
commu?iea?bns Even- Whe'n: bothpa-I?ties are ULS, persens, as language" there
were facts.  -1?<easonte believe that the Communicatien was related to?



international: terrorism. 

  

 

2. we Drafts Offi?eofilaegal Canned Memorandum;

Mares

W1

Si?g. Legal-i

i.

ya 501" Stellar'l??ind,

e" 

  

 
 
 

   

TheiStellar Wind program wasfirst authofiz?ed. by Presiident'Bue-h and.
Ce?j?gd; as: to form and legality by Attorney General ?A-shemft on October 
320011., :Wi'thOut? the sup'poi't of  formal legal opinion from the Office of
 G'ounseleprTeSSly addressing: Stellar Wind. 

The??-rstOLG opinion. directly supporting the legality of the Stellar
 program. weeidated November 24,2001, and was-?draftedieby You, His.
opin-iengalse analyzed the legality of?the-first 
.aidra'ft V'efrsioni of?the. second Authorization?o' I I a 

 November  memorandu 
As. diacuseedmChapter Four ?ef thisieport,
howeve perceive  .1e1enc?ies- Ydo"s memOrandum later became-critical
  of Legal 'C'eunsel?s decis?iOn to reassess the: Stellar Wind
program in 20-03. we therefore describe. Yoo?s legal analysis in his
?Noltie'ntber? memorandum. 

Rico acknow1e'dged at? the outset of his November 2 membrandu'm that
of the  sensitive nature of this subject and the time
.preesuree memorandum has-not. undergone the usual editing
  review- Processtfor Opinions that issue from our-Office. The: 

  

 
 

  
  

  
  

 

 

   
   

   

 

?40' The second Au-thofizgition was issued on Nevember 2, 2001. In de?veiOping his:
legal memorandum, Yoo- analyzed a draft of the second Authorizeition. dated October '31,
2001'. The GIG was not provided the October 31 draft Presidential Authorization, but based
on?Yoo?e d?eSCifiption in his November2 memorandum, it appears that the draftthat Yoo
analyzed tracked the language of the final Nevember 2, 2001, Authorization signed by the
President. 

 

 

his memorandum that the, first Presidential
Authorization was ?in. tension with ?Y?oo stated" that ?purports: to
be: the-exclusive statutory means'for conducting electronic surveillance for
foreign.intenigenoef? but-"Yes then opined that a reading of 
 be enunconstituti?onal infringement on the President?s Article II
anthlori'iieslfm Citing advice of and the position of? the Department
 to Gongress during passage of ?1e USA PATRIOT Act several;
weeks. ,?ear?'errYoo characterized? PISA as merely providing a ?safe harbor for
electroniicrasumeillaneef addingithat it ?Cannot restrict the President?s. ability
toxengageiin warrantiess searches that protect the national. seniority.?

 

 

41 Asdis'c?u?Ssed in Chapter Four, Goldsmith criticized this statement as concluson
and misapported by any separation of powers analysis. #146663;-

 

 

 

a Regardingwhether the aetiVitie's conducteclund?er the Win 
 couldsbe conductedun?der' RISK. Yeowirote that ..
that'FiSA-required an _.appliea=tion tort-he, Fl SA Court to describe  I
 *tes-be?nsecifb? the-target:  YOe-alsest 
lik i A Court would Eat-Warrant 
as contemplated 'in-the'Presidennal I
Authorization. ?Notmg that he.Authorization-could be viewed?vicla?on
civil and terirninal- sanctions-in :50 Urns 18094159, 3500 opined
 mistreg?ard? .EISA represented} annulle?onStitutional. infringement: on".
powers. According-to Yoo, the ultimate testof

 the - government may engagein mantras ?electronic 
activities is whe?ier such conduct is eonSis'tent-With the Fourth. 
Amendment, not whether it meets: the: standards of NBA.

 

 
 
 
  

?4

  

  
  

 

Citing cases applying the doctrine of .conStitutional:raifoidanee, 'Yoo
reasoned that reading to restrict the President?s inherent authority to
conduct fOrei-gin intelligence  would raiSe grate constitujtierial.
.qguestions.42 Yoo Wrote th?ati?unless Congress made a clearstatement in
FISAthat it sought .to restrict presidential authority to conduc?tiwarran?ess-
:s?jeaeehes-in the: national security area? Which ithas not then the statute
muSt.?be construedwto avoid sudh a readin "i 

 

_4 932 Yoo?si memorandum cited the d?octrineof constitutional avoidance, whichihold's'
that "?Wherean otherwiSe acceptable construction of a statute w0u1d raisecserfious-
problems, thefCourt willi'construe? theastatute to avoid. such problems?unless

such Construction is plainly contrary .to the intent Edward J. DeBartolo Com.

12. Florida Gulf Coast Building-as ConiStru?ctiOTF-Adees Couneil; 4.85 U. S, 568; Yoo.
cite-d- cases. supportingthe application of this doctrine-in a manner that preserves the
President?s ?inherent. constitutional powenso as?to avoid potentialconstitutional.
problems,? :See, egg? Public CitiZen v, Department of Justice, 491? US. 440,. 46611-989).

 

?43 On March. 2., 20.09, the-Justice Department released nine opinions written  the,
OLE from 2001 thrOugh- 2003 regarding ?the allocatien of authoritiesbetween 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 treatedas 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 11, 2001,?

January 1.5, 2009, 1, 1 1. Among these opinions was a February 2002 classified.
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 warrantlesS
suWeillaJice activities in the national security area and that the FISA statute therefore does
notapply to'the president?s exercise of his .Commander?in?Chief authority. In a

January 15, 2009, memorandum (indiudedamon?g those releaSed  .MarCh), Bradbury
stated that this proposition ?is problematic and questionable, given FISH-s expreSs?
references to the President?s authority?- and is ?not supported by convincing reasoning.?

 

annm I when my have Ila-(W 1 sewn}. waif],  I 3. 1'2}  

 

Yoois analysis of. this point Wouidlat?r raise serious concerns far
other officials the Office of Legal Counsel and the Office of the Deputy
Attorney General. (ODAG) in late 2003and. early 2004.44 Among other
Ybo did not address the 15-day"Wa-rrant requirement exception 
PISA 'f?lbWiIig a Congressional declaration ofywa'r, 18114-

"rii FISAyCon-gress arguably had demonstrated an intentiOn to ?occupy the

field?: matter of Surveillance during 'wartirne?s

   

canerns regarding- the SA surreiilance program to the eXte-nt that the
Authorizations applied to persons. outside the United States.

persons border and thatintercept-ions ofc-OmInunioations in or
out, ij-ithe' United Statics fell  the "-?border croSSing: eXception.?' Yoo
further-Opined that electrOn-io surveillance in ?direct supportof In?itaijr
operations,? did not trigger constitutio?ai searches and
seizures, in part because the Fourth Amendment-is primarily aimeduat
curbing law enforcement abuses - -  I. - 1- 

  

Finally, Yoo wrote that the electronic surveillance described in the
Presidential Authori?zatiOns-wa?s -?rea?sfonable?' under-the Fourth Amendment
and therefre did not require a warrant. In supportof this'pojsition, Yoo.
cited 4-Supreme Court Opinions upholding Warrantiess searches in a variety

beyond the normal need for law 'eanrCernent, make the warrant and
prehab?ie cause requirement impracticable,? Veronia School Dist. v.
Acton, 515 US. 464, 652 (1995) [as quoted in November 2, 2001.,
Memorandum at 20). Yoo wrote that in these situations the government?s
interest was found to have outweighed the individuai.?s privacy interest, and

 

4" One of these of?cials was Patrick Philb?in, who following Yoo?s departure Was
?dual-hatted? as both an Associate Deputy Attorney General and a Deputy Assistant
Attorney Gene-rat in the Office of Legal Counsel. (U)

45 We discuss the reassessment and criticism of Yoo?s analysis in Chapter
Four. (U)

 

 

 

 

 

 

 

 

authorized by the Presidential Authorizations

  ggOVGFIi-mental security interest. 

 

 

Yoo?nalso? omitted from his November 2 memorandum as well as from
his earlierSepternber 17' and. October 4, 2001, memoranda - any discussion
of YOu-ngstown Sheet 65 Tube Co. v. Sawyer, 343 S79 (1952), a leading
case on the distribution of government powers between the Executive and

 

 

Legigela?vee?? As~disens sod in; Ghap?ter?Foutiz  Jackson-J?s
of President'Tmman?e Article II authority -
 meme Youngstown ease waean?impoftant fee-tor  
 Legal  reevaluation 1:12004' bpinioe  the
.ofthe program.   

 Additional.Residential Authorizatiuns 

-2November 3.0, 2001,. the- Prere'ident signed-a third Authorization
  Sit-taller  Fragram?. The third Authorization. 
identioal?to  second? Authorization of November 20:01, 
 tinieatvof terfo?st attacks-"tn the United States Continued to exist, we
leg?t-i?aumoifi?es cited? itbl? o'ontinning-th'e electronic surveillance, and the
SCOPG'vofoolleotiOn.  

   
    

 
 

 

n;  Prmcipal {313th

 
 
    
    

Accordingly, fourth?,
PresidentialAudi-ottoman; slghe?d on Jenan 20.02;,  the -sscep'e of-
PrO'Videi

acquire a, Communication (including but not limited to a 

.oonlmuniieet?ion carried into or out Of the UnitediStates by
cable} :for whioh, based on- th'e' factual and praotical
condidera?dons of everyday life on which reasonableuand
prudent persons eet,? there  reasonablegr?oun?ds to belieVe
such, comn?ur?Cationt-originated or terminated?aoutside the.
waited States-and a  to such communioati'on is a group

 

?17 In Youngstown, the supreme Court held that PreSidentTIEu?manb Executive.
Q?ride?r' direeting the Seciretaqr of C?onunerce-to seize and operate steel plant-s d-Ltri'ngga labor
d?i?sp?te?to produce-stool needed for American troops timing the Korean War Was an.
tmeonstitution?ajl exercise of the Presid?en't?sAIticle I I Ina
concurring Opinion, Justice listed three categories of Presidential actions against
which tin-judge the Presidential powers, First, ?[W]hen the President acts pursuant to an
expre-SS or implied nuthOriza't.ion of Congress, h-isauthority is at its maximum?" Id. at
685. Second, Justice-Jackson described neategory of concurrent authority between the
President and Congress as a ?zone of twilight" in which the distribution, of power {is
uncertainandi dependant on ?the imperatives of events and contemporary imponderables
ratherdihenson abstract theories of law.? Id. M637 [footnorte'onnttedt the
Freeid'ent take-s measure-s incompatible with the express or implied will of Congress, his.
pO'Wer-Eisat its lowest ebb, for then" he can rely only Upon his oWn constitutional powers
minus-ony- constitutional powers of Congress over the matter.? Id. Justicedaokson
concluded that President Truman?s actions fell within this; third category and thus: ?under
Circumstances which IeaVe Presidential power most vu'inerable to attacklan?d in the least
fatforable of=possib1e oohstimtfona't postures." Id. at 640, (U)

 

 

engagediin international terror-ism, or activities?i?n
or any agent ofsuoh agrOup; or-

acquire, With. respect to a communication,
header/router] including
teleoojmmunioations? data, but'not the contents:-
 thecommunieati'on, when  at: leastsone party tossuch
outside the United States, no {party to
Such communication is known to be ?a-jo'itiz'en of: ?ieiun?ifted
States, or: based on 'th_e?faCtual and practical
considerations Of? everyday life-on thioh' reasonable 
prudent. persons act, meteors speei?c: and. articulable facts
 reason to believe that such. communication relates to
international terrorism, or activities in preparation therefor.
Pteeideia?al  9-, 200.2;?   - . 
7 i.  

    

   
     
 
   

  

 .. language of the Authorizatidn as modified:
- it? colleet?i'on standardin subsequent
Presidential Atith?orizations extending the steilar Wind Program, until the
disputedsPreSidential Authorimtion in March. 2004,. which we discusszin

   

  

4. subsequent You Opinions. (U)

 to, ttorn

General_Asl-wroftdated
i. 

      

lgahty, -e 1. .0112 1. 

Several identical iPresidenti-al Authorizations recertifying the Stellar
Wind pregram were signed in 2002.. 

In October 2002, at Attomey General Ashcroft?s request, YUG drafted
another opinion for Ashcroft Concerning the. Stellar Wind program. This
memorandum, dated October 1 1, 2-00.25i reiterated the. same. basic: analysis
in Yoo?s November 2, 20017, mom ad 11the November 2, 2001, memorandum, Yoo?s? October 11,, 2002,.
memorandum included 'the following caveat: ?BecauSe of the highly sensiti?Ve. nature of this
subject?sand its level of classi?cation, this memorandum has not undergone the usual
editingand review precess for opinions that issue from our Of?ce 

 

 

 

 

 

 

5. Yeats CommuniCat'ions with the White House (U)

I As the 01qu Office of Legal} Counsel official who had been read into the
'Sj-tel?lar  program through early 2003?, Yoo consulted directly with White
 officials about the program during this period. Because we were

toi?intervi?ew Y'oo, we could .not determine the exact nature and extent

0'17 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 develop 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 toid the OIG that during his tenure as
Assistant Attorney General he did not know that Yoo was working alone on
a sensitive campartmented program and he had no knowledge of how Yoo

 

 

Came to be this responsibility. .Bybees?told'us that he was.

?surprised??andl?fa little disappointed? to learn in media aecounts- that he

was not  toz'Y?oo?s work .on what 'B'ybee had later learned to bea

compartmented. counterterrorfis'rn program involving warrantl?esfs electronic

surveillance-L Eybee said-that not be unusual for a Deputy

Aegistant Attorney G'eneral?euch as Yeo' to have direct Contact with the.
White'House? fer thegpur?pOSe of rendering legaladViee, but  theOLC

ASS?istantAttor-ney- General must be aware of all opinions that issue; from

the  Biybee- said that the Aesi?stant Attorney General hasrzan obligation

to ?fsee the whole picture? and is the. person in the of?ce who knoWS  full

range that are being addresSed by the OLC and who can assure-
th-a-t OLC OpiniOns remain. Consistent. 

6. Genealesis View of the Department?sRole in-
Authorizing the Stellar Wind; Program 

The asked, Gonzales- about how he. as White House Connsel,
vieWe'd "the role: of the Justice Department during'the. early- phase of the
Stellar: Wind program,- Gonzales stated that he and others at the White
Honse tried to be" very careful to understandwhat could be done legally, and.
they  'to-Lh?ave ?constant communications with the. Department? in the
first few months-following the September 11, 2-001; terrorist attacks.
Gonzales also stated that items 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 acknOWl?e?dg?ed
that the .Pre'sident?s, decision was based on advice from the Attorney General
and White House Counsel, among?others-. 

also asked whether Gonzales had apersonal belief about the
justification for having single attorney Yoorr-w- 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 deterrninatien or Calculation.
Gonzales stated that he understood the Department?s position wasthat 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 Ashcr'oft?s decision as to how to
satisfy his legal obligations as Attorney General. However, when the QIG
asked whether Gonzales was aware if Ashcroft ever requested to have
additional people read into Stellar Wind, GonZale?s stated that he recalled
Ashcroft wanted Deputy Attorney General Larry Thompson and his Chief of
Staff, David Ayres, read in. Gonzales acknowledged that neither official was

 

  
 

 

 

ever read? into the program; Gonzales?.s aid that Ashcroft-complained that i it
was ?F?i-i-iconvenien-t?-' notzto haVe'ThompSOn and. egress read in, but Gonzales-
elsd Stated that The-11163161301: the sense  Asheroftthat ituaffe?eted- the.
quality?of theil'egal?adxfioe the.Whifte House.
Gonzalesstated that other than ASHCFO-ft?szfequ?st that Thompson and:
Ayresxbe, readifin, he did net recall Ashcroft requesting- to have additional
Department of?cials read sin-.49 

 Impleme-ntatiOn of the Stellar WindiProgram? (Uf/ i I 

 

In this section, wedescribe the initial implementation Of the
Stellar Wind program. We first describe how the NSA acquired the
communications data. authorized for collection under the program. Wei-also
discuss {the process the NSA used to analyze the intermation ?reo-e'itfed. from
the Wind program and how this information Was. provided to the-FBI.


A, Implementation of Sitellar'Wind (Ill 

 the implementation of the. Stellar. windprogram is
Justice Department documents'we Obtained during-our
:F?i?ieW-a as Wellies interviiews of   

 S-tell'ar  I a as a 
 overview-jot the NSA. Obtained
the information author-med fer 0 {action ?nder Stellar-Wind.? his
informatim i's-also? important for later Sections. of this report that: describe
significant modifications to i the Authorizations negarding'the. manner
soopexof celleo'tion, the: Department?s reassessmentof the legal; rationale

 signer, Wind. program duringzlate 5200's and. 

  
    

      

 

 

*9 Gonzales stated that Ashcroft, as the Attorney General, would be wellwpositionecl
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 Office of Professional Responsibility (OPR) and several
attorney's within OPR be granted- security clearances in order to conduct an inquiry? into the:
professional conduct of Department lawyers with respeCt to the Stellar Windiprogram.
Gonzales said he made his request both through White House Counsel Harriet Miors and
directly to the President?.. However, the. President ini?tially?deolined the request, and the
reqL1.eSt wasnot granted until October'2007. (U 

 

 

 

{au?  A.
  {?shes-Commonly refErreci "to as the three baskets? Basket 
referr?d?to inthe content Oftelephonfl and email
Iatioiji?s? basket 2? referred to collection of meta data asSociated

    

 
  

   
 

 
 

 

   

 

 

   

 
   
   

errt?ciefscribe int-Chapter Four changes made in. March and
under Presidential Authorization following a dispute between tih 

1 - th 1 alt of the Stel'lrir Wind roram

           
   
 
 

 
   

?51 Title 1821;);r the United States Code generale prohibits the interception and
. . .. I  ..  I.

:7 an.

    

 

 

 

  
 

underStellarWind (baskets the-meta-date associated
- the program
ate-,nlaeedi   -.d?atab?alseieyetem calle  :Which awarding.
0'28 ff" ?efdatab'asee: a1. "cal?t?eola. 
databases  Segregated into ?realm? organized'by ?ith?e Specific
authority data to, becaieeteass- "The o'ontentzedata,
collected under the-Stellar Wind program was placed in a separate-NSA.
'repd?s?itolfY-?i   i; . i

   

  
   
 

   

   
   

 

j? Tellellphone and?alwiaii Content Callieetion

w? 

    

?i 

   

a, Telephom eemmamca?ons (m
We deacribe brie?y the. teohnjcal memS?S?ed-?W?the

$916532 'thes'ih?fcr?ational- telephone system  
collection calla?under the Stellar: Wind programg'?s?.

 

 

5'3 NSAof?cialS; said the realms also establisha system of access control to ensure
that only: 'authOriZed user?s aCCess:Certain data. 

54 As discussed in Chapter Five of this report, the created an additional realm
inJuly 2004 when the government obtained FISA authority to collectearnail meta-data, and
another realm in May; 2006 when it obtained authority under FI-SA to collect telephony
metaidata. These realms were separate from the realms that contained information

collected undEr Stellar:- Wind 

The'NSA?aintetCeption of international telephone communications under Stellar
Wind highlighted the dramatic change in telecommunications technology that had been
takingaplace'aior nearly 2-0 years.. In 1-978, whenFISA was enacted, telephone'r-calls placed
byz?and to ind'itiid'uals within the United States {domestic calls) Were Carlied mostly on
gapper wires, while telephone calls placed to or from. individuals outside the United States.
[internationalcalls) goneral?ly were tranSmitted by satellites.- FISA re?ected the state of
technology then by defining the term ?electronic surveillance? to be the acquisition of the
contents of Certain wire and radio (satellite) communications. stated that as to radio

(Cont?d)

 

 

 

 

intaiiceptionuogfce?i

  

cbniir?mijc'?i?d?s- spaci??cally; andiithus as to most. internationalcommunications, the
clanst?itgitqd ?electronic survaillance? only if the acquisition intentionally

lmoanUBg :perSGIl the United States, or if all participants to the

thE'Unitedetat'es. See. ?50 U.S.C. 1801(?(1) and 

{hat-"targeted foreign persons Outside the United

 wa$ not considered elEcti-OIlic Surveillance under and the

me T?s-511111533 t9: gbtajn a FISA court rizing the surVeilIance

    

 

 

 

was; 3?

auth?ofiZed" to in 

 we d'Sftatea

i inatin 

or termina?tin -

 

 

iBa?ket 25 T?lephonv Metanata Call?ction 

   
  
 

 

 

 

The NSA informed the FISA Court of this issue in the government?s December 2005



i
1


 

    

1
1

 

 

?rio ,mformationvthatri?clud??s the 

   
   

    
 
 

esoejor   .1: c.    

 

 olfw?eaqh-ca?, and the date, of -.e.a0h Call?. The call
not includejthe SubS'tantiVC ?cO11tent..of"any Communication
(Jr-financial information of a; subso?ber :01: customer.-

 
 

 

. . 56! commu?-i?atm?nsw
-. nEiiteds?Stfat

as,  no party 

  

k-Iiowfi toifba- a: ?U?ited?State?S ?citizen, or

corn xication related to international terrorism; ?Chapt-?Er One,
I . ..  . -H  

 th?fe?was reasonable ?artiouil?bl?e suspi?eiion 'to? believe the. 

   
      

1+

 

 

 
 
 

theinformatienunder the StellarWind program. The data was areh-ived

   
   

   

i 

  database that contained exclusively Stellar Wind
ian-fmatisn  was accessible only by 39305-611137 authorized NSA

the?,pmgram.

   reSpect to telephone communications that satis?ed the.
Presidential AuthorizatiOrls ?acquisition? standard. In fact, the SA
reported that by the end of 2006, 001% of the data collected had actually

been retrieved from its database for analysis. WW

 

we describe these techniques in part sf this section. (U)

 

 

 

  
 

?Hur- .

 

 

 

I SA obtained communications
infomation that appeared on the ?from,? ?bee,? and
ewmail. Thus, the NSA collected the e?mail
sender, the e?ma? addresses of any recipients, and the
concerning. the date and time when the e-mail was sent.

    

frb??i  ?re? Iines? oft?he ew'majts the body  the 



 

 

 

 

Ba rise mess Inferrmatim CollectedUnder

Stellar wind  I . It

T116 Conducted tWQi "functionally distinct typesof rev-ier dithe-
massive :me.u:nt 10f. data it Collected- under the Stellar Wind program, First,
the conducted procedures: intended ?measure-that ?it..only reviewed or
?acquired?- the" informatio? that-was: with-in the-snop?e oil-the Presidential
Authorizations. Second, the NSA?conduC-ted substantive analysis ofthc-
acquired infermation to determinerwhetfher it had intelligence value that.
 disseminated to customer ageneie's su'eh as the FBI ahdthe CIA.

The NSAproe?edures to ensure that the acquisition andidissemination
Sta?dards?were satisfied bECame more formalized overtime. We describe
belowhow theNSA handled; the enormous volume of'd?a?ta it was collecting

 Stellar 

1- Basket  Content Whine Analysis and.
Dissemination v.         4

 

.7 

Stellar Windis ?basket l?l:eor1tentidatabase contains telephOne: and
communications The. NSA refers to the telephone
numbersiand e-?mail addreSSes tasked. for interception To
task aselector under the Presidential Authorizationsi the NSEA Was required

to establish probable. cause "to believe the intercepted communications
originated 'or terminated outside the United States and-probableeauSe to

believe a party to die communications was a group engaged in international.
terrorism, or activitiestin preparation therefor, or any agent of such a

group.55 

The SA had two processes for tasking selectors under stellar Wind.
One process applied to tasking fOreign selectors, or selectors believed to be

 

 

 

. used by  persons outside the United? States.? The other process

app g; earn 4'1'Stic- selectors, or- selectorsbelievedit-o- be?- used. by
pieitson?s?inside the; United by  pe-ifs'onisgabmad. A foreign
itselejctoracould be tats-keel for-- collection unde?fS?c-?e?aif .Wihd b?aSed 
NBA. analystis; determination, follbWingSome amo?untiofdoeumented
and analysis about the Sela-tort, that the terms of the 7
Satisfied.  NSAdid not require any additionallevels
offepp?romlbefore? a foreign Selector Could be ta'ske'd;55

    

I  domestic selector Couid'be tasked only after the NLSAganalyst
obtained specific approvals The rigor of process'to- 
selector! evo'IVed' over time, but essentially it required an r?analyst to draft a:
foetal? tasking package that demonstrated; =thr0ugh- ahalysis and.
?Q?umentation, that the selector satisfied theftertm's-of the Authorizations.
 package-was re?VieWed byai'designatedsenir official. who could approve
paokage, or. request that-additional inferrna?on be pro?deti..

     

A Jould?comfoenCe-Conwnt
.Zofiiden?fyihg a number: or address
thorizat?ions,' "1110111161? Cases,
11:9:- urgent or priority ta-S'kings

In.- emergency situations, 1: 
  Selector Within _7
 satis?ed the criteria. in: therPES?ide?tialA?

 
  

The NSA conducted 15?, o'f taskedfo-reign
 domestic selectors to assesswhe?ther the. interception-should con?rm-e,
The. statedthajt the. selectors Were ?dc?tasked?- if the-user was arrested,
ifprobable cause could. no longer be established-5.01" if other-targets took
Priority;      

The content intercepted under: taskings- WES. sent 12:0" and
placed-in a database accessible by analyst?s-cleared into, the-Stellar
 ram. The were responsible. for reviewing the

a:

    

       

 

 

 

   and     

Qu?xi?sz?mwsis:

sigh-.3: w.

    
 
  

a massive. amount ;of.?telephony sand 
a 3 atian) insarealm?
assigned to The
fufhu?: cdll?c?oniwars to; facilitate the ofconnectious
 Among particular telephone numbers and5E+ma?laddrasses b} 
"This ated analytical}techniqu called "contact 

  
 
  

    

 

by the NSA tin dacilar-ations ?led-With: 'the?iFI'SA Court,-
Contact  isrused tor-determme: the contacts made: by a par?c-ul?af
 (tier one cantata), as; Well asconpagcts
 ?by-iSub?SEquentj chtactS (tiertwo and tier ?ves-contactsi- The: NEH
usesacdmputersalgorithms-to identify me ?rst two tiers{1df3contactsga? e-ma?
addres?an?iake's arid 36116: ?rst   tiers of cont-acts. a: tel?phorle number.
 'ACCordii-lg} to the  .mul'tietiered' contrast  is par?ciculariy
awful- telephony-meta data basallse a 

 

 

 

 

 

proviOusly-noted, the NSA interpreted the, Presidential
pm'niitii-t :to collect telephony and e?mail meta data in
 thedatabaSes that held this data to identify meta
Ideltaxfoncommunications to or from a particular telephone or e??mail address
{also known as the ?seed number? or ?seed account?). NSA
the database using a- selector for which there was a.
reasonable aftiCula-ble-SuspiciOn to believe that the number term I

     

8

   

with?proposalsto task selectors, an NSA shift c00rdinator typically
reviewed for approval proposals to query either the email or telephony meta
data bulkdatab?ases using particular selectors. If the shift coordi?natdr
agreed thatthereas'onabl'e 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 ewrnaisl
addreSSes,that'liadrbeen in contact With the seed account. Each contact
alohgtheohain of contacts that originated. with the selector was ?referred to
 i?i'h'opgi?inieani'ng, that a telephone call from the seed account to
telephone number  Was considered ?one hop out,? and a call from
telephone number-A to telephone number was considered ?two hops, out?
'(r61ative to the seed account), and so on. NBA used specialized
soft-ware .to chain and analyze the contacts idenu'?ed by each query. The

 

 

NSAFtoldlus that Ste-liar Wereperrn?itted  the  

  to three hops out?eld-1 the scream

 

Therm-tiltser each query were. analyzed to; determine Wheth?lEr'ar?iYGf
 contactazshould bre?reported, Or ?tipped,? to Stellar Wind; Customer-3:-
primarily the FBI, and the National Colunterf?rrorisrnCenten. Ian-the

?rst  the Stellar Wind program,- the NSA reported: :to the FBI 
eon-tactsxiden?fiedi?between a telephone nu-mbefler eemail-addree?s?and
the Selmter used? to queer the" meta. data. realm, as.   -.eontac-ts:
that were-titre rat-1C1?lreeghops-out. frer'n arse-lecture As discussedin, Chapter
Qf'thi?s?report, over- tirnexthe and FBI Worked tec'iniprovethe 
reportingproeess: and: the  of"?the intelligence being: disseminated

under Stellar Wind.

 

The. domestic contacts from-Specified numbers oraeemail addressee;
tallied Were prQVided to the FBI by Thesetippers- Were-
included-51:1 reports/that containethch sections by radas?hed-li?neg
commenly referred; ta as a?tear?1ine,? made: to appear as} perforation;
extendingaoroes they-Width of a page. The purposexof the tearl?ine was to:
separate line eo'mpartmented information above: theitearline,  could;
'ideriti?fy the Specific: sources and methods ascetic obtain-the information}:
fromthe-nomeompartniented infOrma-tion that  FB'Il?eould further
disseminate in its ?eld: Offices. Only FBI personnel  tweeter-
Windppo'grameould haVe acceSS. to the full Stellar Wind reports from-NSA.

 
 

 linforinationhthat appearedaboxre the tea?ine typically was
classifiedj'lfop Seeret SCI- and identified. Stellar Wind: a 'f
intelligence, The information. includedis. .eei?edetails

    
 

 

The information that appeared below the tearline of a report generally
was classi?ed Secret or Confidential and did not identify Stellar Wind as the
source. of the intelligence. The text typically included some version of the
following statement:

 

 

 

    



    I      

 
 

 

  time in

 

fifSt-ggveral menths of 'TO?gram, nearly all.

 

 

Agaexalmples, the following Stellar Wind reports were among thoSe
disseminated ice/the?FBI?ln November 2001. We have exeerpte'd only the;

 the: tearline,_ which isoftegn refEFred. to simply as ?leading
ii?fijif?j??eiif? In addition, we did not provide the actual telephone numbers
previdegl,  to: the FBI. r' 

 

 

 

 

 Participation in the. Stellar Wind Program 

  Was-not program; nor was the FBI involved in the
pregame-creation. However, as the: lead. agency fer c?ounterterrorism in the
States, the;:FBI receitredi much intelligence produCed under Stellar
 lathe .fQ'llOW'ing-SECtiOnS, We describe how the FBI became involved in
Stellar-- Wind pregram, the personnel resources allocated to handle
 infonnati'on, and the initial procedures the FBI established to
receive; centro'lz,  disseminate the program information.

 

 

5?3 In addition to the queries the NSA conduoted on a basis, the NSA
also maintained a. list of foreign and domestic telephone numbers and email. addresses for
which; based on assessments, there was a reasonable basis to believe were
associated: with international terrorism. These selectors, called ?alerts,? were. queried
against the incoming ?metaidata automatically on a daily basis, and any contacts with a
domestic telephone number or e-mail address Were directed to SA for review and
opoSSible reporting to the FBI. The NSA regularly updated the alert list by adding or
removing selector-s, 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
'Pf?SidElitial authority to: 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

Ord'er.. 

 

bi,
b3,
b7E

 

  Fin-st Informed ofStell?m Wind 
(UH  I.

Virectori-?Muleller? tol?d?us "that Q?fi?che: Stellar

a'mee-ting he. attended atqt?he'. Homoeowi?i?ttorney

   

G?ii?r?l whiehzoocurI?Cd either-after made ft):

the presidentially authorize c1 Or ?ShOr?y-arflter the

Authorization was'r'iswed; ?imuener?tol? 
more  formal .iread+i=n? and that Haydon ?rnayihave :a?tte?ded.
Mueller Said  at of around this time he also brie?y alf?vis?wedithe

OTCtobe-r 4,2001?, Presidential he Characterized as
- - -

Director said his impress-ion at 1:116 time was that?the terms of
the 'PreSidenti_a1,AuthorizatiOn might anew for collecting purely domestic
telephorie-andveema? communication-s. Muelle: the
matter'with Ashcroft  askediwh'ether had 15:81le anaojjini?onson the.
 ?M-u??l?l?fsaid. that.? .6 recalled being;th  
opined orally on the program and Mueller said he Suggested to Ashcroft that
one issue-a formal Mueller told 7121?s that  did not-think
 ever exercisednauthority under the Authorization? to .collect' purely
domestic Communications, 'l A 1" 1 

Mueller stated that based on the meetm?gnhe .attendedjat theWhthe'
Housearidhis brief review Of the October 41; 20011; Frasi?e??al
Authorizationth understood the FBPS role.  the? program Was.
to ?e a ?is-cipienrt?. of intelligence: generate-c1    andzto: provide; any
technioal? agUpport to tire  as necessary to supper?: the program; 

 

 

 

attorney-General fermaIIy-direeti?g: the F1: to support (the;   .
Ithat?he alsorequested the-orderebeeause he wanteda ?record
-- *4 

. In 1651301186,, on October. 20, 2-00 11,. Attorney General Ashcroft sem?
m?em?ra?r?ji?dum to Director Mueller Stating;

A's part-of Nationh self defense activities, the National
"Security.Agency (NBA) is engaged certain additionalcollection
activities, thetrdeita?ls of which you are aware. Those-activities
are legal and have been appropriately autho?eed, ?andv?the-
:FederialBureau of InVestigat'ion should cooperate  as.
meioessary for itto Conduct those activities.  

 

According. to Muellelf, the Combination of this m?motrandums'from the

 and. the   2.0011, memorandum 
regarding .thei?legality  
 ?at-that time with the 

  
   

Bowman also told us that the Whlte HouSe-Offic1ais prrmam- 
responsible: for Stellar Wind, who he identi?ed as the Vice President-and-
Addington, were ?amateurs? when it came to intelligence wOrk. Bowman
statedthat one of the potential conSequences of severely limiting the
number of individuals read into a program is. that uncleared personnel Who

 

 

 

eclean positian close proximity to programerelated

.aetiizities might. consnue-c?ertain. actions as quast'ijoriable for illegal. 

I rean {that act-aim thereby potentially  the  

   what    
- ether-s: Bawmaadid not: agree-Withthe ideals-lento so severely iliinii't

amass-ate?le-program- ..  

   
  
   

       

e. as; J'B?egins tangeeivxe stanzas-Win
?Tippersusam

In-the immediate aftermath of the September 11 terrorist attacks? the
Fathers created  reek force of agents  to? analyze-the ?ood of
telephone numbers it received from ultiple sources?; {inelugdinfg agencies
within =the intelligence  foliage- and
concerned eitizensr The taSk-foree; called the 'Telephone-Analys?is?U-nit
(TAU) ., was; located at FBI. Headquarters and consisted :ofiapproxieiately 520
F1 employees WOriking-Onshift rO-t?atiens?24?hours per day, days per
week; The Operation was of the
EStrategit: Information and. Operatiens Center; As embed:- below,
personnelassigned to. this task farce ?rstat the FBI to
handle Stellar"Wind~derived information; . gj      i 

 
 
 
  

1. FBI Initiates 1  b1 b3 b7E

what came to be called the. 
to manage the Stellar WindudErived .informationibeing received from the-
NSA. "The'inforrna'tion, inferred to as .S?te'llar'Wind ?tippers,? consisted of
telephone numbers and e-mail accounts deriVed from NSA meta data
analysis, and sometimes content intercepted from particular. telephone and
e~mail communications. The essential purpose of the
was to receive Stellar Wind tippers from the and disseminate the
information to FBI field offices for investigation in a manner that did not
reveal the source of the information or the methods by which it was

contacted. 

Werking alternating shiftsin theFBI?sr Strategic InforinatiOn and
Operations center, two FBI were primarily responsible for
m'ana'gin?grstellar Wind tippers in the initial months of the program. These
told the OIG that until December 2001, the. Stellar Wind, tippers

 
 

 

 

exclusively.ofi-telephone, numbers: Ace?OIding to the" 

  pro cess fer -h'anid1iagvste11'ar?Wind tippers:  the NBA
FBI Headquarters pro?ciedi one of the the
.i?fer?iatii-on bellow the: tearl?ine- as?talar?Windreport. cohtafi?i?gxe?e=or -
raorer?pp?m. The analyst than queriedFBI:database-s for 

about ea *h tip fer such asth'ether the -t-ipper-appeared in any or

I  agairist the

.. d?atab?tsa-?Which isi?the' EFBli?r Central-rep? SiitiOer b1, b3,
for? lephene-l $11 er .a acquired. during the b7E
In. addition the? each tipper against public Source 

databases-for releva?t iin'foicmatiom such as. the identity of a telephone
number-subscriber; - 

    
  

After completing these database Cheek-s, the an.-
Electronic .Commumeation, of from Headquarters to the
appropriate FBI field offices The Ecdeseribed the tearline 
about the: itip?per? contained in the Stellar Wind, repoft together with any
additionaliinf?rmation the analyst was":ab1e to locate

   

The ECS disseminated to: hold foffiCe - included?
SeVeral feature??comemmgithe nature of the information and how it could b1, b3,
housed. First, the Bee adVised- b7E
provided WaS??defived'from an establish bl? uree? andthatiit
was ?being-addressed by the TAU as the   

  
 
 

 

 

Second, theLECs. included a caveat aboutth?e 
being-provided, stating that the information _?is?for lead and is:
intended selelyifor' the v-background information of recipients in developing
their. oWnceollateral leads. It cann?ot'bexujsed in affidavit-s; court proceedings,
subpoenas; or for other legal or judicial purposes.? The FBI. said this
languagepwas included, in each EC to protect thejsource of them-fermatiOn
and the methods by Which it was collected. 

Third, the 1303- provided an explanation about the qualitative rankings?.
cribed 1 th NSA assi need each

  

     
  

         

b1,b3,b7IL
b7E

 

fCont?t?l.)

 

 

 

Fourth: {the ECs-instructed: the field-offices: how that'lpperS-ShOUId be
addressed. These instructions Were-gproaided :for Which the FBI:

three-categories: Action, Discretionary, and For Information. I An Action
lead instructed :a field office, to take at particiil?ar action in response. toi-the
EC. ?covered? When the ?eld office took the specified
aetionor conducted appropriate inVestigiation. to the information 
the:   Discretionary lead allowed the field office:th take whateV?i action

I it ?eet-nod appropriate. A fie-Id. officer that receives a ?For 

  expected to: take any speci?c- aetiori-inresiionse to the other

than possibly route; the communication to the office personnel whose
.inVe-sti'gations or dutiEs the information Concerned. 

a After the FBI analyst cemplet?ed this process disafted the EC, 
Special Agent read into the Stellar Wind program reViewed
the  in part to ensure that it. did not reveal the source of the information
or the method-by whiCh the information was obtained. Ones approVTed, the
analyst entered the-EC into the REPS Antomated Case Management SyStem
and theoreceiving field offices: were. notified electronically to review the
communication.- i 3? I - 

 
 
 
   

   

b1, b3,
typically contained multiple tippers b7E

field Offices? The meshing 

were reaponsi-blejfor- handling the loads that zeonoerned tippers falling, in

their reSpective geographic jurisdictions,  

 

  
 
 
 
    

Most of tih leads that disseminated Stellar. Wind
tippessv?were designated Action ea s. 
tippers were almost excl-Usively i

'd-th?e field of?ee' to.

 
    

 

    ..      Thistle-ad. so instructed. the
reenlts to the Telephone Analysis Unit

    

 told us that the focus of their

work in the ?rst months after the September 11 attacks was to detect what 131,133,
many believed was an imminent second attack. During this period, nearly b7E
all of the Stellar Wind tippers the FBI received were disseminated to a field

office for investigation as quickly as possible. 

 

In additiOn to tippers containing the content of intercepted telephone
and e'~mail communications (content tippers), in approximately 

 

 

 

20011  NSAEbeg-sn providing: the FBI tippers derivedfmm {the 3N SA?sl eema?
meta hese.  tippers.  Were
touted-t0" the-Same "We?re- telephone tippers.
 told us that  eemail'?pp'ers were-processed and 
.distsemiinated-L-in  same manner asvthe Cement
tippers, Whicfh ?-iaCeorjding. to: received  infrequently 
daring-ibis, re airly period, generally Wars-"also dissentinamd rby-?EC-to 
appropriate, field 2 office a; but little if any - 1?3     information
 con?icted- The considered the; agate-m: tippers 
particularly times-sensitive  . for; ?that-reason occasionally transmitted the
 directly to the: appropriate Offices to advise. that:
the information was Being loaded into "the FBl?sAutornated. Case
Management'system. In 2002, responsibility for was
raaSsigned t0 the Electronic:- Communication-S?  

 1, [1:81 ["36 

 
     

February 2002, one-of the two FBI- left the

   

:?er'be'ing -:se?1ected fora management. posi-tien ina ?ferent

.?analyticals section within The b1, b3, b7E
Came s?olel'? res one-ibis? forzm'anaging the ?StellarWin'd
?ipper-Sunder the a; Situation that: continued for

approximately th months; The  told??us?that-?While herwork

  
    

- ours,  period were ?ridiculous-3? sheets not.feel-tha1-e-wa-aany
prE'SSute. toadd to the project ?the: process was working,

We'll.? 

 
   

   
 

early 2002, FBI management instrUcte?dthe. lone 
alyst to conduct some other wO-rki while physicall leoated in the 

NSA Headquarters ?at Fort Meade, Maryland. This. created Z511.71, unusual b1, b3,
 for the analyst,- The. analyst continued to receiVetheNSA?s: b7E
daily Stellar Wind repertsat FBI Headquarters,  'shezwould then drive to

the N-SA With the repel-ts to draft the ECS (the analyst had remote. access to

FBI an NSA workstation). The us that

interaction with NSA counterparts during these daily visits. was minimal.

After the E05 were drafted, the analyst returned to FBI Headquarters to

Obtain approval to disseminate the communications to the field offices.

The analyst?s impression was that FBI management created this unusual
arrangement ?for show? and that its purpose was to establish an FBI

?presenee? at the NBA in connection with Stellar Wind.

gs! 5m; mg is? mg}

The analyst continued. working on Stellar  matters until
approximately February 2003,, when a. Small team of FBI personnel were

 

 

 

assigned Pemane?tly 1'0 the N35 to managerthe?FB?I?S participation in the
Stellar Wind 

2. Fmi?Field-Diff?zces?i' Response-g;  

313?

  

b1,b3, b7E'

for managing Stellar

Wi?d information und'er?th? I

Q'gtobic: 2001- to February 2003 age-n in  Office?s grew- b1, b3, b7E
frustrated  they were 19:931ng under. 

:Be?a?se the  that IdiSSefhiha-fed  tippers to the
?fi?ld?officcs assigned moSt?o'f mam as. Ae?oni?leads, this required that the

leads: be: advereti expeditiously. 

  
 
 
  

  

According toitheWC FBI an

   
           
 

     

Under ordirlaijy' Operating procedures, 'ipVeS'?gative leads for 
international terroriSm matters-axe Set- by FBI ItIEadquartez?s?: {titer-national?
Terrorism "Operations Section. 111 add'iticjn, :theE'Cs assigningintema?onal
tertafismrl?adsi ty-Pi?a?y identi?ed ?Afg?ent within-ITOS
 ,pointwo?contact 'fOr any qu?estionsgfieid ?officesyn?g?ht hav-e.. Because b1, b3,

til  comartme'ngted, theslead?s sent b7E

     
 
  

theS't?llar Wind piog'rarn was smi'
during?ihiszuaarly 9617104 by 'thHaadq??ifteESC?pdmt?b_f. 'id?enti? ed in th?e?EC?s
  questions general-1y Was-one'Of't-he ?ve  

Awarding tonne of (the 
AC 0111 l?gd-S  

 

        
    

agent's
Black- of

     

 

   at the SA is disc

b1,
b3,
b7E

infarmatio

 

 

the
intelligence"prodded-tnthe  to? help; the: agents- decide
Wh?ther there;Was-euffieifinit Predicati'ontto Open anime?s?ga?m On the
telephone humber or to' a?natib?al "Security letter for "St-1b Scribe-r

   

?The?analyet stalth that in response to these Calls. he could only
reiterate to the agents-that ~was;lrovidedaby a reliable
sensitive emith The analyst Said:ithisisituation, preduced 
with the'tippeits,   one hand: there was iademandilin ?ie?l?ternational b1: '33,
Terrorism Operation-s   4 ?ees. fer: "the, telephone numbers b7E
because of theirxpri?or__  ?tamsand? the prevailing Corieeirn
that.there7Would be a Second lax-andI the. limited
arid" vague information contained   Ece caused

he lead.

 
  
  
  

some confusion and frustration among agents 'mvestigatmg 

 

Agents alsoeomplained that many tippers.Were alrea'  1e
FBI from past or pending investigatith and_ that the 
smeidhg-f?ei-reular reperting.?76 Howevei to one b1 b3
analysed-this generally did not 0061112 The analyst- explairied b7'E 
"that, anage'ntgm the ,fieldassigne?d to (Sever a lead. on a telephone number
did net; knew the. -.N-SAWas-theseeuree e?f ?ieyinte11'igjenee'.. Consequently,
Whea- theifaigeetdiscovered. that the number-Was-identieal to a number?the
agent tiras'elread - ve?stiatsi =or-Was aware of, it appeared to the agent
that th.. mply ?haci'identified a previously known
mum-bet, ?e'eedeetedf isometadditionalresearch that the field office likely had
already done,  disseminated the inferma?en back, to the: ?eld as new
reporting. Because the: Could not source of the
intelligence, the agent did notrealize the  reportingin

  
 

  
 

     
  

   
    

b1, b3,
b7E

Was that leads diSSeminated?under the that vre 
designated ?Action leads? frequently did not yield signi?cantinvesti'gatiVe
a  ,7     em we?. Hg. 5:12 

 

    
   

7.5, example}. Circular reporting might have: occurred when the El passed a
Stella-1' Wind-derived telephone number? oreewma?il address to another agency Within the U..S,
Intelligence Community, that agency in turn requested the NSA to analyze the information,
and thie?NSA the. results- back to the FBI in a Stellar Wind

report. 

 

    

 

 
  
      
 
  

 he?N'SAre fended-to this frustration by implementing the
ankingsdeselribcd earlier to. provide the agents some:
gdidanee 'Qn'pr?i?or I In. addition, the: FBI.
 2. that became morev'adept' at temp - lanai sis 
1 game.? eliminatinglow value dipper 
disseminatedto'?eld of?ces. RB 0011 -
Sought additional-information from-the NSA abo?t- tippel 
before  ?FBeltdisseminated theSe tippers to the fielde'for inVesti-g ion;

    

 

 

 

 

3. Efforts to {ll-rack Stellar Wind Ti: :ers andlU' date
?E?Keeutive management a on Status 0
Leads .

b1, b3,
b7E

 
 

 

Typically?   originate from  speci?c;investigath or

administrative case?le-sriumber. A?le number-17?s else required for an EC to
beeloaded'iinto  FEES-Auternated Case'Management Sy'stem  te?enable
thelisendi?gi of?ce assignvalead to the Weenies-of?ce? H'oj 

 art's-rs diidnot-initiallyopen an iILVestigative ?file for th A b1,
  EQsthat disseminated Stellar Wind tippers to?eld offices; b3,
'riginal assigned to: the project told the *OI?G?that?he was. b7E

a telephone analysis project'in the F133 drug program 

      
  
  

that as a'resulthe decided to lissuethe-firsti'Stellar Wind-related EC from
that dmg; investigative file. This confused some field .ozt?ces receiving the
earliestjEGs because counterterrorismleadsawsre being disseminated under
,adirug investigation ?le number. i 

   

  
  

I-n-mid?Octoher 2001, the FBI created asub?le under the 

itNe sttgati'on of the September 11 terrofist attacks to: dis semih

nformation. The FBI used this ,su'b?le, referred to as th? 

b1,
b3,
b7E

 

  
 

The   also told us that they created a b11133)
database to (mpft to'tracl; the status of leads disseminated to the field b7E
offices. The database identified each tipper by ?eld office 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)

 

 

xfi?ld. Offices was early man-ths?andathei-r. Supervisor-S. I bLbB,
i?SUHC??d'tl?iB  at one  of   :0 b7E
toaster miner-1?16 Status of th leadsfor Which: each offiee was

 

 
 
  
  

 

Th the database they created to. 
produse  FBI of?cials Who Were ..r'eadi. into the {Stellar b1, b3,
Wind pro rate; These the quantityf?and b7E
 i?at?d'tippers, Well a-s-Sbrie?fsy?incinpses 
the ';1eads-. The Stellar viewed "as an
emerghhey?re'?sponse ?totthje?Setember-?ll attacks  these status reports.
were intended-Sto- provide FBI executives,information;about how the program
was contributing to the: counterterroris?m efforts. .

   
  

Wt, Justice Department. Of?ce-of Intelligence Palioy' and Reviews?
and. PISA-Court?s-Ea?rly Role in Stellar Wind
.  I 7' :glPresident signed the first Authorization loathe program on
October 2001-1, only two :Departimentzof?cialsoutside the were read
into the StellarWind program: AttorneyGeneral John Ashcroft, who,
Certified  Authorization as to form  legality; and John YoorthecDeputy
AssiStant'Attorney General in. the. Gifts-of Legal Counselresponsilhle for-H 
adVisi?ng?the Attorney General on the matter and for?draf?ng?the
Department?si??rst memorandum on- the legality of the prozgrarn.78 The
Deba'rtment?s Office- of'Inte'lligence Policy and Review (OIPR), despite its:
experti'sefin FISA matters, was-not asked to consider how FISA might-affect
 program?s legality 0r implementation, 1101' Was OIEPR aSked to COnsider?
how  prOgram- might affect the-Department?s FISA operations.

as! era

In this section, we provide an overview of OIPR, how James Baker, the
head of OIPR, inadvertently came to learn about ?StellarWind Soon after it
was initiated, and the subsequent role that OIPR played in the program?s
operation; 'We also deseribe, the circumstances surrounding the decision to
have the FISA Court Presiding Judge and his successor read into the Stellar
Wind program, and the Court?s response to the programNp!?

 

73 Levin told us that he did not belieVe Yoo wasread into Stellar Wind before the
October 4, 2001, Presidential AuthoriZation was signed, and we were not able to determine
prehiser 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. 

 

 

 

A, OverviEewefOiPR (U)

At the time of the implementation of; the. Stellar. Windipro?grjam, 
was re Sponsible for -adv.ising' the Attorney General son?rnatteri?s relating to the:
national security activities .of the United Stateng Createdshortly after
enactment Of? the Foreign Intelligence SurVeilla-nCe Act of 1978, (NPR
reviewed? executive directive-S, and relating to the
intelligence community, and approved 
activities, OIPRals'o provided formal and-injforanialglegal adv-ice to; the
Attorney'Gener?al and  intelligenCe agencies regmd-inquuestions of law
andip'rocedure relating intelligence activities. Ifnaddition, DIP-R
?advised the AttOrnEy Generaland. agencies such. FBI, and
Defenss  State Departments cencerninrg questions of law relating to US.
:njsuzionalE security activities and the legality-of. domestic and overseas
intelligence. operations, 

OIPR also represented the. United States before the FISA 'C?o?urt. OIPR
was "responsible for preparing and presenting: appliCat'ion?s- to the Court
for orders authorizing electrOni?c by U.S.
"intelligence agenoies for'for-ei'gn intelligence purpo?SeS in investigatiOns
.involvingespionage and international terrorism; ?When .evidenceobtained
under FISA was proposed to be used in criminal proceedings, songht
the :-nCCe"ssaJy authorization from. the AttorneineI-ieral,  .inz-eeordination

with the Criminal Division and? US. Attorney?s. Offi?Ce-- prepared'the motions

 briefs required by the federal court Wh'e'neVer?suIveillance under FISA
was challenged. (U) .

The head of OIPR was referred to as, the Counsel 'fOr. Intelligence Policy
and was-supported by trim Deputy Counsel and a staff of attomeys,
paralegals, and administrative professionals.- James Baker served as the
COunsel for OIPR from May 2001 to January 2007;80 (U)

B. OIPR Counsel Learns of Stellar Wind Program  

Baker told us that while standing outside the Departmentone evening
several weeks after the September 11 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 modi?ed structure and name.
The new organisation is called the Office of Intelligence and includes operations, oversight,
and litigatiOn sections. For purposes of this report we use the term'OIP-R to reflect. 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 officially resigned from the
Justice Departmentin October 2007. (U)

 

 

foreignwtowdomestic- collection was beingxconduCted withoutE a order,
and-that some F11 personnel ?were gettingnerVOus.? The FBI colleague
asked Baker whether he knew any-thingiaboutthe activity, Baker

responded that he did not.

 

?Baker?said that Whialereviewing a PISA application several Weeksfafter
this a partiCUlar passage regarding international
Communications ?leapt'ou-t According to 
_?_eonta?ined f?strange. unattributed language? and; informatiOnrthat was ?not
attributed:  the usual way.? Baker told the~.OIG that the information I
concerned connections. between. teleph?One numbers, but heucoulrd "not recall
if the infOrmation simply identified a link between individuals. or also.
included the content of Communications. 3? i 

   

Baker asked the DIP-R attorney responsible for. the appliCationabou-t
the information in the pass-age, and the-attOr-ney 
the FBI would Where the infermati'on had some from, only that. it
was part of a ?special collection.? Baker therefore contacted these-I about
"the application. 'U'nabl'e to obtain any answers to his questions, Baker
informed the FBI that he wOuld not-allow the application to lee-filed with the"
Baker said that, to the best of his re.colleCtion,jhe did not.
believe the application was filed with the. Court. i 

 

Soon thereafter, Baker spoke with Daniel Levin, who. at that time was
servingas bath CCunselor to the .AttOrney General and C-higfofrsitaffito the
FBI Director. Levin told Baker that appmval from the White House was
needed before, he could tell Baker about the Special collection. Levin?t?old' us
?thathe 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 briefing 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

 

31 Baker told us that he initially was read into the program in December2001 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
attorneys. This fermal briefing 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 datefor purposes of calculating the number of Justice- Department employees read into
the program. [$686)

 

 

 

nevertheless. surprised that while Stellar Windwas in? his y'iewi?overriding? a
cri?rriinalstatute? on the basis of p'oweras Commander in.
Chief, Yoo?s memorandum did not even cite an important 
GourtAopinion on presidential authority during Wartime, ?Youngstown Sheet
65 Either-Co; Baker said he believed that it is important to: exercise some
?humilitf?then dealing with matters because ofithe
complexityzand importance of the issues, and he mastere- final
judgment on the memorandum until heresearChed thesle'gal issues further;
Yer, Bakersaid hiszinitiai opinion'- rat the memorandum was ?awed legally
did not change: overtime. i l-i

   

We taskediBaker whether at the time he thought-the'collection 
authorized under Stellar Wind could haVe been acComplished tinder PISA.
Baker said that his thinking on this issue has-evolved: over time ,p but. that he
believed that works in wartime.? He stated that although it
issdifficultato do, FISA can be made to Work under the circumstances that
existed. following the September 11'1 attacks, but that'it also Was easy to
?make PISA- not work? under theSe- circumstances.

 

taker cited a lackzof resources asithe primary impedimentto using
the FISApIocess, rather than Stellar Wind, to collect?foreign intelligence
folloivin?g the September 11 attacks. Baker said maths. did not believe
OIPR, as staffed in October 2001, had Sufficient resources to processthe'
volume of telephone numbers the NSA was tasking? fer centerit collection
under Stellar Wind at that time.- l-l?owever, Baker explained that in- his View
?scalable? and, that to some degree the statute?fs utility is limited by

the resources allocated to 

 

Baker. also observed that to bring Stellar Wind?s. contentan-d meta-
data collections fully under FISA authority Would haVe required a different
approaCh to the statute. Baker said that developing such  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 US. Intelligence
Community officials that had worked periodically since shortly before the

 

53 Baker also observed that could have been staffed with detailees from the
Department of Defense and other components within the Justice Department. 

'53 Baker also said that he did not have the legal resources within, to I
?challenge? Yeo?s November 2, 2001, legal analysis of the Stellar Wind program, although
he believed it was Flawed. 

 

 

September. 11. terrorist attacks to develop solutions to variotrsfor?eign
intelligence collection. 'iss?ues??l? {1138/ SI ,1 [19.13%

 

(3. area Genesis Interment at Stellar Wind. 

.. Baker told the that sometime  the December 2001 to January
200.2 time period he concluded, ?baSed on his awareness that information
derived'froniStellar Wind had been used-to support atl'ea?st one requestfor
 PISA application, that the court also needed to be made aWare of the
Stellar-Wind: program. Baker said that the Department?s connterterrorism
efforts rely on good relations "With the FISA Court and that-candor and
transparency are critical components of that relationship. According to
Baker, had a policy off-1.111 disClOsur'ez- 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-simmered coordination between intelligence agents and prosecutors to
the strong relationship that the Department had built With the Court.
Baker believed it would be detrimental to this relation-Ship if the Court
learnedjlater that informationgif-rom Stellar Wind was. included in FISA
applications Without notice to the Court. ?3  I 7  

 

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
theissne was being considered. Baker initially agreed to this approaCh and
drafteda memorandumfrom Ashcroft to Baker to? this effect. He said that
Levin edited the document and presented it to. Ashcroft, Who signed. it. The.
meinorandum, 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. 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 file applications with the
Foreign Intelligence Surveillance Court without informing the
court of the existence of the Stellar Wind program or any aspect
thereof. 1 am also directing you not to brief any other

 

34 This type of collaborative effert ultimately developed the legal theories used to!
transitionstellarWind?s collection activities to PISA authority. However, as we discuas- 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 PISA. Court judge, subsequently was rejected by a second judge{31/ 

74

mama-n remnants-um I rmwan 

indiuidtlals: in the} Department of [Just'i?ca includi?gihe-?FBII
regarding Stellar Wind Without my prior .?au'thorizatiOLn;

 

. Levin teld? us: that. he; as well-as Ashcroft, soon-came with i
 thatthe FISA Court. should be. made aware of the program. Levin
said he told. Ashcroft duringthis': time  Bakeir?h?id- idione airman-anis-
ijfobi? building a relationShip with: the FISACou'rtIthatggreatly bene?ted the
and counterterrorfism efforts; Lovin- aid
9?hcadrised AShorOft, ?We should do what {Baker Ethinkis?rris right?? Acoording
'tosLeV'in, Ashcroft agreed.   

  

Levin said that he informed Gonzales and Addington at?s'om'e point of
Baker?s position that. the FISA Court Shot:le be made. aware Of'Stellar Winfdi
but said they'iniitia?y rejected the idea of "reading  judgesinto the
program Levin stated that: he Continued to press the issue Without Success.

 

However, the issue came to a head on a weekend in. JanuaryQOQQ?
when Baker revic?Wed a second appliCation that contained the ?Strange,
unattributeci language?? toin'dicate thatt'he' .intcarmat?io?:
obtained from the. Stellar Wind-program. This second. FI-SA
abnlica?on sought cine 1: .

   
   

 
  

 
  

 
        
 
 

 

 ..  . . .thIS W0
ethic - irst monitor: this particular
subject?s telephone communications, Baker recognized that the had
already engaged in some leVel of electronic surveillance in the? United States
of a domestic telephone, number without a PISA order.

   

Although Baker viewed the memorandum from Ashcroft directing him
not to inform the Court aboutStellar Wind as ?cover? for him not to
inform the FISA Court about Stellar Wind, he remained uncomfortable
abOut filing an application that contained Stellar Wind informationwithout
inferrn'in'g the ISA Court. Baker therefor-e approached the Chief of the
Justice Department?s Professional. ReSponsibilit?y Advisory Office (PRAO) to
di?sCuss his ethical responsibilities to- the FISA Court under circumstances
where a PISA application contains certain. information that is material. to the
Court?s decision, but Baker was not authorized. to disclose the. source of 'the'

 

 catamaran-nan 1? team? when ?(armies he?? I l-meMan 
it?.le f- ,1 ?gm-Lu

informationgB-S- Baker Stated that the  Chief told him that he had an
sajffirmativeduty of candor-to- die-Court,_ and that this dutyof' candor. was.
heightened due. to the exparte nature of the FISA proceedings?6 
=-con'eurred with this guidanoe, which Baker felt. lake was compete-dim his.
position-gas afederal offieer and officer of? the Court. Baker said therefore!
Concluded, andinfOrmed LeVin, thathe? not Sign fthe'pen'dingi
applicatien or presentto it to the. .FISA Court, nor OIPR
attorney do so; According to Baker, Levin spoke to David. about
ithessituation, but Addington nevertheless declared that the Court would not
be read into the program. i  - 

    

According to Bakeri the White House, the Attorney General?, and Levin
LthEIl Levin, rather than Bakers Would sign FISA-applicatiOn
 present it to Judge Claude Hilton, the FISA Court: judge re'SponSible
for'hearin'g matters that Weekendi? Baker told us that he; notified
 Hiltn in advance that the application was beinghandled .in-this.
manner. Levin said he brought the application to Judge Hilton?s residence.
and eXplained that he, instead" of Counsel, was 
becauseyit involved a ?special clas sified Levin told. us that Judge
Hilton approved. the application Without asking any questions. According to.
Levin, when he later told Addin'gton how the matter was resolved, and that.
he agreed  Baker?s position. that the Court should 'be'brie?fed into the
pro-gram, Addington responded that Baker should be fired for
insubordination-for not signing? the application. i i . 

 
   

According to, Baker, a consensus. formed after this episode among the.
Attorney General, the and the White House that fumre FISA matters
eOuld not be handled in the same fashion, particularly in View of the
anticipated. increase in FISA applications resulting from the intelligence
COIlieCted and disseminated under Stellar Wind?i8 Baker said that the

 

35 The Professional. Responsibility Advisory Office providesadvioe 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 specific 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
deeisiOn, whether or not the facts are adVerse.? Baker stated that he also consulted with
two officials from the Off-ice of the Deputy Attorney General on the matter and that they
provided the same advice'as PRAO. (U)

3" 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 NBA applications. Baker stated that

his exPerience' with FBI recorchkeeping practices did not give him a high degree of
{Coht?d.)

 

 

 

 

 

did-3'10? was therefore mad-e tattle? ms
ROyCeLarnberth?g-  .  

       

FISA Court?s Presiding Judge,
Judge Lamberth. was read?into Stellar Wind on January 31, 2002.
The briefing was conductedin the Attorney General?s office at the
Department, and. was. attended by Asheroft, Hayden, Mueller, Levin, YOO,
 Bake-L. According to a memorandum of talking points prepared for the
briefing, Ashcroft provided Judge Lamberth a brief summary of the
pregrar?n?s - creation, explainingtih?at the President had authorized .a sensitive
collection :teohniqtre in .reSpo?nse to. theSeptember 1 1 attaCks-in-order to
0131th foreign intelligence information necessary to pretect the United
States from future attacks and acts of internatibnal ter?ror-iSm. Ashcroft said
the" NSA, at the instruction of the S'eCretary'of ?Defense, implemented the
.collectiOn.-, WhiCh was code named Stellar 

According to. the talking points, Ashcroft also discussed the factors
the'President considered in determiningthat an ?extraordinary emergency-
exists?? to support electronic survei-llancevwithout a warrant. The factors
cited to Judge Lamberth' paralleled those contained in the Presidential
Autherizations, ineludmg ?the magnitude and probability of death from
terroristattacks', the needto detect and prevent such attacks with secrecy,
the poSSible intrusion into the. privacy of American Citizens, the absence of a
more to information,  the
reasonableness, of such intrusion in light of the magnitude of the potential
threat of such ter-rorist?acts and the probability of their oCcurrenCe.?

 

According to the talking points, Ashcroft stated that he determined,
based upon the advice of the Office of Legal Counsel, that the President?s
actions Were lawfulunder the Cons?titutiOn. Levin told us that Ashcroft
emphasized to Judge Lamberth that the FISA Court Was not being asked to
approve the program. 

  

Following As?hcroft?s summary, the briefing continued in three parts.
First, Hayden described how the program worked operationally. Second,
Yoo discussed legal aspects of the program. Third, Baker discussed a

 

confidence that such separation could be consistently maintained. in addition, Baker
believed that the nature of FBI international terrorism investigations would make it dif?cult
to tracki?Steilar Windwderived information. According the FBI OGC, Baker did not share
with the FBI his concerns about whether its record?keeping practiceswould keep Stellar

Wind information frOm being used in FISA applications. 

59 The Presiding Judge for the FISA Court is appointed to a 7-year term by the Chief
Justice of. theSupreme Court of the United States. Judge Lamberth was appointed as
Presiding Judge in 1.995. (U)

 

 

prelim-351111601," handling-ELSA applications that contained program?derived
information.  ..

 

Levin told us: that when the briefing, co?ncluded, Lamberth
acknowledgedhe was not being- aSked to approixe the pros-ram and .
exprefsse'dhis appre?ciatibn for ?being'read in. According to Baker, Lamberth
alien remarked, ?Well, it. all depends-.011 Whetherfyou cange?t five votes on: the
SiupremeCourt, b-ut 13m with For the neat 4 months, until
the end of?h?ijs'term. in May 2002, JudgejLamberth was the only PISA Court
judge Stellar Wind1D. GIPR Implements ?V?SCrubbing? Procedures for Stellar. Wind-
Information in International Terror-ism FISA Applications

     

FollowingJudge Lamberth?sread~in to the Stellar Wind program,
Baker inileinente?d procedures in scenarios in which
Szte?llar'iWind ecul'jd; affect international terror-ism FISA applications-.90 First,
information. obtained or derived fromStellar Wind might be included'in a
FISAapp?licationto establish probable cause that the target of the
application is;a foreign power or an. agent of a foreign poWer and thatthe-
target 'is-usin?g or is about to use a particular ?facility? (a term used in FI-SA.
generallytorefer to a Specific telephone number or email address) at?WhiCh
the electronic surveillance is directed. Scoond, a applicatiOn might
?th'atWere also targeted by Stellar Wind, a Situation referred
to asr-?idual coverage? because the targeted communications were collected
under two-separate authorities. Baker?s procedures, referred to as
?serubbing'i? procedures, applied to initial applications as well asto
renewal. applications seeking: toconti-nu'e existing coverage of targets
(elEctrOnit-i surveillance under FI'SA'generally is (auth-oriZed fOr QO?day
periods). 

   

Judge ,La-mberth required that all appliCaticns that contained SA
information derived from Stellar Wind or that would produce dual coverage
of a facility be filed 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 application. AcCording to Baker, the scrubbing

 

90 The procedures implemented by Baker only applied to international terrorism
FISA applications, not'to counterintelligence FISA applications. As Baker later explained in
a letter to Judge Lamberth?s successor as ISA 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.?


 

 

 

proceurESrwere means of implementing his-ethical, duty ofV?candOr to the

court 'withOut disclosing the existenCe of the Stellar-Winds program to
a endeared attorneys: and'jj'udges. Bakeralso said that Judge Lamberth
wanted to be infonnedi of applications that e'ontainedStellar Wind:
informationand ofz'dujal CQVerage-situations, and that. Judge-Lamber?i
believed that the procedures devised by: Baker were. an appropriate 
acceptable mcansof accomplishing.nits-.- Mondrian-Baker; the scrubbing
process made-lhifmand- Judge. Lam-be" ?Comfortable the-Court was-being

told? what it needed to be told.?91

   

We describebelow the mitial two 
by Baker as well as the difficulties- they?created- ferthe ELSA applicat-idn
precess. . 1 

   

Initial Scrubbing Preced?nres 

Each international terrorism-FISA? application- was ?scrubbed? for
Stellar'Wind? information anddQual Ho?wever,
Baker, asthe only person in read int'oStellar?Wind, was unable-to
explain- tohi's sitaff'1Why"the scrubbing was With the 
cooperatioriL'Baker initially scrubbed the applicationswithout  .
as_sistance'r'irom'OIPR staff. Baker said the time-and effort herexp'ended?on
this practice was not sustainable, and Weeks-of. beginningithe:
Scrubbing procedures Baker enliSted the asSista'nce of OIPR?s'iActinngeputy
Counsel Operations; Peggy SkellyaNolen stated
to-th?e ?iat Baker .told'her at that time that he ?heeded to tell me
something that hencoulid?n?t tell me,? but. waster-131s to convey that-he needed
her. and the office?s assistance to process international terror-ism FISA
apj lications because the supporting declarations containedinformatiOn that

required special . ., 

  

The sorubbing process, or ?the program check? as. it Came to. be
knOwn  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 'Courtwa?s
concerned aboutrris?ks presented by the inclusion of Stellar Wind information in FISA
applications; nor- did Baker inform the'FBI that implemented procedures to address

these concerns.

 

 

To accomplish the firstpurpose, i-OIPR-attorneye'We-re required to
identify  information- in applications attributed :to, the, NSA, ever-13f there
 noxsugg?stion'thsinformation? Was derivedeff?ma Spedal program. The
 attorneys provided. by email" the relevant the 
'appllicatiotistto  designated l?gal: assistant, who in turn compiledlthe
irrformatioh and transmitted it to the. NSA by se?oure'ewm ail or faes'ijmile.
Upon receipt, the NSAvcon'ducted a checkCOf the identified infOrmation
against'the Stellar'Wind report's data-base, among-?Others, to determine
Whether the information was dam-ad. or obtairred from-the program (as-
?di'stjinfguished: from being obtained by some other  Signals Cellecti?on
activity). .The NSA. provided? the results of its Search. by return e-?mail
writing next to each-excerpt either ?yes? or ?no? to rindicsate
whether theihformation was .?Stellar Wind-derived; Judge Lamberth did?tiot
 Stellar Wind?derived information be removed from 
applications! only that any such applications he filed with him exoh?Jsively
arid theiStellar Wind informatiOn identified to him orally.?

 

Theseeond purpose (if the scrub?? to identify dual collection.
applications --~3folloWed similar steps. On approximately a weeklybasis, 
 legal aSSistant requested. that aittorrieyetrahsmit toihim all
facilitiestargeEd for electronic surveillanm scheduled to be
?led Withithe FISA- Court that week. The legalassis?ta?tCreateda Singlelist
Mall-targeted telephone numbers and 'ewmailedvor
fanedV?le?infermation' to the NSA. The NSA: in turn checked-theStellarWind-
-database: to determineswhether any of the listed. facilities were'tasked to:
content collection under the program- The NSA provided OI-PR: the results of
this-cheek by return .e-ernai?l or'facs'imile, writingnext to each facility either
?j?yes?? or"?no? 'to- indicate Whether the facility was "tasked under Stellar Wit?1d.

  
    

 
 

 

.92 Baker said that 0111 ntetnational terrorism FISA applications
presented to Judge. Lamberth mew. ea teller. Wind ?in?fOr-mation to- support the application.

 

Ske~11y-Nolen ins-trusted an  

told us that she was. .11

 

 
 
 
  

thisvdeserlptive phrase
app red; Would-result  duelrtcoveraga

 

 

ISO Wouldfinjforthiidge   . 
Lambert - ease to indicate it Was-Genn?otedto Stall

eaten 1m}; I-m?r? ?sts.
"w .1 ?fun;

Complications with Scrubbing Precedures.

 

Ske11y~N01en told us that no "one in. includingheratthat time,
was aware that the Checks Bakerwas requiring theef?ce to make. concerned
axsp?eo?ic ?eompartmente'd program. However,- the sortib'birig- rproee?ur?es
gentiliated questionsfrom OIPRattorneyS and FBIagents particularly when
to. 

    
   
 

descriptive phr?a

     



toathesquestions becauSe she d'd noit'haeethe answers.

Skelly?Notch also stated that it was stressful to comply  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 fer filings but were not being provided an
explanation for these measures. She said this stress was compounded by
theeoncurrent anthrax scare and the prevailing belief that there. would be
another terrorist attack. Skelly?Nolen stated that staff Was acting

based on Baker?s representations alone, and while Baker sought to assuage

any concerns the OI-PR attorneys had over these new procedures by

 

x?rm man as we

1
Anyways-Lu wt 1 1 Ju? 

genie: investment Intranet-mt? I reserve: ?1 air. I- I
u. we!? ,1 u. sway] me] wnmw.usu1

eXplainling-?to the office. that he hadsp0k?en to the Attorney General and the?
the attoi7neys simply-were not comfortable-
un'd?er' these,.Circumstances and;eSjkelly-Njolen had to reassign the
international} terrorism case-s theSC attorneys were handling.- ?Bak?er stated
that he regularly told attorneysthat they did-not have to signapplications.
that: they were not cmfortable With. . . . i

The presses- fer filing international terrorism applications was
further ,complicatediby-the fact that of the two Justiee Department offiCialsx
,?authOIfiaed, to approve such applications - the Attorney General, and the
DeputyAttorney General only Attorney General Ashcroft was; read into
Stellar Win_d.94 As mentioned previously, Larry Thompson, who Served as
Deputy Attorney General from May 2001 to August 2008, was neVer read
inter-the Stellar Wind pregram. Alberto Gonzales, who served as White
House. Counsel "from to- February 2-005, stated to-the that
he recalled that Ashcroft wanted Thompson, as Well. as Ashcroft?s Chief of

Ashcroft complained that it was" ?inconvenient? not having these: 
officials read into the program,95 . -  - - - 

 

The situation with Thompson caused Associate Deputy Attorney
General'D?avid Kris, who oversaw natiOnal security matters-in the Of?ce of
the Deputy? Attorney General during Thoinp80n.?s tenure, to draft a
memorandum on January 11, 2002,. advising Baker that he should not send-
Kris. any PISA applican?ons that included information obtained or: derived

not to'rCVi'ew or approve any such applications-.95 The memorandum stated.
that Kris was; aware of the existence of ?highly classified
information?collection program that has the unclassified code name tStellar
Windy? but that he Was ?Wholly unattrare of the nature and. scope of the.

 

94 Each application. must be approved lay-the Attorney General, de?ned under
lBOl?fg) to include the Deputy Attorney General or Acting Attorney General, based on the
Attorney ?General?s ?nding that the application ?satisfies the criteria and requirements of
sueh application as set forth in [subchapter I concerning electronic suweillance].? 50

men. 1804(a). (U)

to the White House. However, as described in Chapter Four, others had a. decidedly
different impression of Ashcroft?s opinion of the iegal advice he received on Stellar Wind
during this period. We Were unable to interview Ashcroft about this issue.  

95 Baker told the OIG that he had informed Kris about the existence of a classified
program that he could not discuss further, and that it impacted FISA applications. Baker

related to them. 

82

_mnrm Hill: I Sill 

 

 

   

 

program}? Kris-alsostated in the memorandum :that'hisireque-Sthr-at

briefing? .onthe program had been d'e'niediand that he was aWare Deputy

Attorney  also had not been briefed on alepmgram?-V

13- Judge Succeeds Judge-Lamberth 
court Presiding Judge 

Judge Court ended in: "May .2 0052;-

:On May; 19'; 2002, Judge Colleen was appoihted to the?CQu-rt.

as the Presiding Judge; In Connection with this
appointment, Judge KollaruKotelly was readiin'to the ?Stellar 
 previd?ed an Opportunity to-?eXarnine the Department?s analysis of the
program?s legality. Judge Kollar-IKotelly also-spoke- withBaker' on numerous
resoasions about the scrubbingprocedures heirnplemente?d to aecourrt for:
Stellar Wind information in international terrorism PISA applicationsand to-
.identify. applications that Would res-ult'in, dual coverage.

1. Judge Kollarattete?y- Modifies Scrubbing
Procedures   .

 

Judge Kollar??KOtelly received her first. brie-fingion. the Stellar Wind;
program in the Attorney General?s office oniMay 17', 2.002, 23days; prior to
being appointed Presiding Judge for: Court. Baker, who
attended the briefing, told us that the ?rese'ntation was similar to the
brie?ng initially provided to Judge Lamberth-. . Jud-gelKol?lar?Kotelly had
sev'eral'questions conCer?ning the scope of thePreside-nt?s authority to-
oonduot warrantl'ess surveillance, and the Department responded that same
diay'wiith a letter signed by OLC Deputy Assistant?A-ttorney 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
A

 

According to Baker, Judge Kollar??Kotelly met at the White House with
Adding-ton, Gonzales, and. Y00 to read Yoo?s letter, but she was not
permitted to retain a copy or take any notes. Judge Kollaerotelly 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
specifics of the [Stellar Wind] program.? 

 

 

 

Judge? to: review the! -
supresidential]Adth?orizatien initiating; Stella-1i Wind; August 132;. 2002, she

reviewedtheoetober 4,   

 

Bakersaid that he met-xwii'th Jilng Ko?l?l-ajraKetellyon several occasions
after Eherinitial :Ste?ll?ar Wind brie?ng'toid?iscu?ss; howtOIPR'Ihad been.
handling-Stellar Wind?s immaterial-SA. applications. Baker-described for
her procedures. to -'aceountgfor NBA-information contained: ?in;
deriVed immerse: Wind;,,and toaidentify-applications
that, litiapproved, WriuldproduCe dual coverage o?fia faCilit?y?.

 

Judge Kollaerotelly' also ?was ?interested. in identifying whether a
facility-?targeted in a PISA application had been tipped to. theFBI as
StellareWind deriVed inferrnat'i?oni Baker told the  that. at thistirne he
did he: belieVe. the FBI and NBA had the. ability to tracki?SteHar Win'di?1t1p3en
'agtirnely; baSis, Baker said hecmistakenly'believed that as tips ?passed from
the .NgsA. to: FBI. Headquarters ,andtromcthere to Flair-field. offices {a
investigation, it Would be Ito-trace the Specific source; of

. the infmirnation in'a sufficiently timely manner to: inelu?sion'in a: PISA
application Baker provided hi?sundetstanlding.to JudgeIK?ollar?Kotelly,
1ikeni?1gig the Stellar Wind in?romae'onrn tips teeth'eVEBI' as ?salt in: rsOup??that
3is!impossibleeoextract. once added; ion Baker?s representations,
.J KollaraKOtelly did not reqi?re the" Department to identify (Whether a
facility targeted in :a FISA application was ever provided-to the FBI under
S'tellar.Wind.93 . - 

  
  

 treatises were. also targeted
under Stellar Wind. Baker said that While Judge K'ollaru?Kctelly understood
that instances of dual coverage would cecur, shes 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 SA?stechnique 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
toztraclc? Stellar Wind information. As discussed in. Chapter Six, in March 2004? Judge
Kollar~Kote11y added to the scrubbing process a, check performed by the FBI to determine
whether any telephone: numbers or e-mail addresses contained in a FISAgapplication had

ever?been provided to the FBI in a Stellar Wind report. 

Judge KollarsKotelly later wrote about the-dual coverage issue, in a January 12,
2005, letter toBaker that discussed the ?Steliar Wind Program and Practice Before the
(Cont?cl.)

 

 

    

 

- 'Said?he'bdievas Judge W33flyingtoePrOteetj-th? FISA.
and did inOt want the legality 40f the court-s orders called into:
question;  A  1   -  

 

 Judge 'Kellar?Kote?y also dit?cted OIPR 'to-exci?se from EFISAV

aapplicationsrany infermation obtained or deriVed- :fror-n. Stellar Wind; Baker
tej?ltig that OlPReonld? implement 
?the-scrubbing procedures already in place, and that. the! FBI included

information  application dg?termin?d to beSignal?rwi?d?de?ved;
OIPR Would?rexciseit.   -  

  

Judge Kellar?Kotelly also instructed Baker .to alert her (if any
instances Where an application?s-basis for the requisite probablei'caus'e-
sh?owing under PISA was weakened by excising the Stellar Wind
information. In such-cases, Judge .KollarnKOtelly would then, decide. whether
to,? pprove the application with the leiow?rledge that ad'di?c?'itinalrelevant

information had been excised. 

though Judge ?Kollar-Kotellyis scrubbing processwas intended to
eliminate? all Stellar Wind informatiOn from international terrorism 
applications, she still required that scrubbed applications he ?ledwith her

 intime, Judge Kolla?r??Kotelly relaxed this requirement permitted
ether judges} on the -:Court to handle-these applications, although only after

  

'first?being filed with her.100

OI-PR implements Judge Keller-Kotelly?s Scrubbing
Procedure 

Acc.ording.,to Baker and Skelly-.Nolen, the mechanics Within-OIPR for

determining: Whether an. application contained Stellar Wind information or

targeteda facility also targeted. under Stellar Wind remained essentially
un'changed?iafter the transition. from Judge Lamberth to Judge
K'ollar~Kotelly. HoweVer, the scrubbing process became?more complex. For

 

The letter memorialized the information Judge 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
Koll'a?r?Kote?lly wrote, ?WithOut opining on [Stellar Wind]~related 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

 

 

 

examyple, because only the Attorney General could  the applications: and
Judge 'Kellaratotelly required, that only she, receive? the appli?ations (mien:
after .SikielljyaNolen-had. to regularly visit - the Attorney
Generarsajand Presiding Judge?s residences math? stacks of what 3'81gelly?Noic?en-
 to refer to. as; Only? applications.

 

The, Situation was further complicated. When. AShc1?0'ft Was on overseas
travel and his signature-Was needed for- a scrubbed application readyrto' be
filed}; When this Occur-red, the classifiCa?tion 0f the application?s.signature
and the-nasent to, AShcroft by secure The: actual.
application Was not faxed; typically included a:
statement from her or Baker with the signature page indicating-that 
application was: proper and complied  the requirementsof?the FISA
statute. Skelly?Nolen observed that in. these eases Ashcroft essentially
relied on her. and Baker?s asse?SSments. orthe applieatiOris even though.
.S?lgelly?LNolen was not read .intoS'tellar Wind atthis time. Scrubbed
appl-iea-tions were handled similarly when Ashcroft: was traveling
domestically, although. in those instances  applications-"Could be: provided:
along with the signature page if . . . .   

Judge Kauai-?Kate?y also. required: that hearings for the en;1y??_
 appl'ieatiOrLS and renewals, be scheduled for late in. the day or on the
Weekend, either- in her courtroom Chambers at the District- Court for the:
Di-?striet of Columbia or at her residence. According to Skelly?Notch, Judge-
KollareKOtelly insisted on thispraotiCe so that the  on.1y?- docket did
not interfere. with her regular court docket. From Skelly?Nolen?s perspective,
this practice-- proved to be an ?eitormous' burden,? particularly in cases
to continue coverage on targets of emergency
-authorizati0ns.109 Skelly??Nolen explained-that these authorizations were,
for "no good operations reason? that she Was :aWare of, routinely approved
by the ?tterney General on Fridays, meaning that a FISA application had to
be ?led with the Court Within 72 hours?a by Monday to; continue the
emergency Surveillance eoVerage. Hewever, because. Judge. KollapKotelly
had a regular court docket on Mondays, she required that any scrubbed
FISA application seeking authority to continue surveillance initiated under

 

'03 Baker told the OIG that in their eXperience it was not unusual
for an Attorney General or Deputy Attorney General to rely on representations that
the PISA-applications presented for signal-tore satisfied the statute-?5 requirements, instead
of reviewing the full contents of each application. 

As previously described under JFISA duringthis "time period, when the Attomey
General; reasonably determines that an emergency situation exists: prior to obtaining a FISA

order, theAt-torney General may approve the use of electronic s-Lirveillance for a period of
up to 72 hours without an order. (U)

 

 

 

'-,emergency authorization be scheduled with her fo?rSunday, Skelly~Nolen
"Stated: that these cases would be in addition to the renewal appliCat-ion?s that
also had to be leaned. on Sundays so the authority- for the 'surVeilliance in
these. cases did not-expire and the coverage-lapse.

 

"Baker identi?ed another isSuethat stemmed from udge?
:KollaraKote?llyh requirement thatvo?nly she receive-dual Coverage.
applications. The .problEm arose when Judge: KollarsKorelly was out-oftewn
and unaVail'able tohear a dual: coverageapplication, Baker?s solutionwas
either to fly the app?lieatiOn; to the place Judge, KOll?araKotelly was lecated, or
to-gcontact the NSA and request that; it ?sde~ta?sk? thefacilitie's. that the. FI-SA
application was targeting. 'In this way, the application could be presented to
anilalternative FISA Court judge because it no longer'targeted facilities that
were also targeted under Stellar Wind. 

  

For example, Baker described a situation where the FBI was urgently
interested in a particular individual. whose telephonewas currently tasked
by therN-SA- under Stellar Wind, In this case,.Baker instructed the SA to
'de?t-ask the telephone number so the PISA applieation..c0u1d?be
presented-to ajudge otherthan Judge KollarrKOt-ellr. To prevent wreath-in
coirerage betWee'n the time the N-SA detaskedthe telephone number  the
Court; approved-the application, surveillance was initiated under-
FISAB emergency authorization provision and then presented to a FISA
Court judge within the requisite '72 hours. According to Baker, "proceeding
 this fashion. ?made everyone comfortable,? including the NSA. Baker told
usfthat this situatiOn occurred a couple of times each year.

 

According to. Baker and Skelly~NOlen, these. eXarnples illustrate how
having only the, Attorney General and a single judge on the FISA Court read
into Stellar Wind complicated the process. Baker said that ?fairly early
on? after being read into the program, Judge Kollar~Kotelly made several
requests for other Court judges to be read into the program. Baker
told the OI that these requests were generally made through him, orally
and in writing, but was aware that on at least one occasion Judge
Kollar~Kote11y 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 Kollarm?Kotelly
summarized the situation, stating, have repeatedly asked that the other
members of the F180 be given access to the same informatioh that I have
received regarding the [Stellar Wind] pregram. To date, the executive

 

 

bl?amh has-declined 13060 Bitmap-anew to maintain the Str-iete'st secrecy 
1.

 

As arcon?s'equeriCe oi only. Judge read into Stellar
Win'dand her in sis-tense that she. alone: handleuapplieationsz. Scrubbed of
Stellar  information or that invoked tasking]telephone:numbers or
already tasked underSteuar windxauai coverage-)1 'gby'
NoVefnber22004 she was 

 

- - i . . . a a patent ?stall FII-SVA
applications. Judge to 
application?s regardinsihe same: targeted facilities, .:Shejdiscontinuedethis.
PT'aCt-ic? i?'NOvemher 2,004 and; permitted. otheifju'd?ges? to hear scrubbed:
applicatiOns. Judge Kannada-1137? later Wrote that her- dec'iSiQn Was ?based.
 the had place to scrub applications and
that She assured her -collea_gIIEs?that they could properly- decide [the case's]
batsed on the information in Each. application, Without the additianal
information on WhiCh '13 havebeen b?rie'fiEd, but which, to date, the: other
judge-S have not received? - 

   

If. FBI-Initiates Measuresto Improve the Management ef?Steliair
Wind Informatisn 

Following the terrorist: attacks of'ESeptember .1, the FBI had
reallocated personnel  resources to. Conn-terterrorism:operation-s, and.
eSta-blish'ed theTelephom' Analysis Unit (TAU) to exploittelephone
communications data. We?descr'ibed above h?owazsmal'lte'am= I '5  b1, b3,
from this-unit was reassigned-to the which b7E
Was responsible for handling Stellar W5. reportsaprovided by the 

    
  

 

In approximately May. 2002, the TAU was: renamed the
Communications Analysis and became one Of the units within
the Communications: Exploitation Section. (CXS). Aecordingto
the ?rst Acting. CAD Unit Chief, the vision for the unit I

i - .. - tiOnS by 
 The  

(sess?

In this section, we describe changes the FBI implemented in late 2002
and early 2003 to man-age the intelligence it received under Stellar Wind.
These changes included-attempts to improve coordinatiOn with the NSA,
implement a more formal program to race'ive intelligence from the NBA and
disseminate itvto FBI field offices, educate the FBI field-offices about the
valued the intelligence and FBI Headquarters? expectations concerning its
use, and assign a Small team of FBI personnel to work fullatime at the NSA

onWStell'ar Wind. @5949)?

     
 
           
 
 

 

 

 

a. my acting Uni-t Chief-Ewaluates Fer Stellar
Wind  5  

the them  Unit Chief arriVed at FBI Headquarters: in
September 200.2,. GXS was newly established and mostof the 
 staff?Wa?s there on temporary duty assignments. The CAU Wasstaffed
 at this time, but" also Contained. some. Professional 
employe?esffrom other divisions at FBI Headquarters. 

The]  Uni-t Chief said that the mission Was to supper-t FBI
international terrOr-isrn investigatiOns a1 Qlaeda' investigations  particular
shy. analyzing telephone calling activity and e-rnail' communications. He
explainedthat prior to September 11, 2001,, the FBI analyzed telephone
numbers-receiVed   i sources by. querying the. numbers
against the FEES database, the central. b1, b3:
re?pesitoryfor t' ephone. subscriber data. However, he said the b7E
database at that. time was relatively small and had limited analytical
capability.- In the. wake. of the September. 11 attacks, the FBI gained accesls
tool?s and-began to utilize more schisticated analytical
techniques. Stellar-Wind was One of those new tOols.

 
    
  

 

Unit Chief said. that after he was read into Stellar Wind in-
late :Septem'ber 2002, it was Clear to him based on conversations. with the
Seetion? Chief that the FBI Wanted to: increase its paittieipatiiOn 
program. As a agent in the Chicagoe
   'h  Chief had some eXposure to Stellar Wind in theforrne?f
   leads. He told us. that he had recalled thinking the
I ere ?s pid? and ?.notsensible.? He. also said that he had been
critical of the leads because they did not provide any. context to the b1?
.in-fOImatiOH, such as tated that the leads did not b3:
adequately explain 'th  rankings associated with the b7E
telephone numbers, and the leads were not sufficiently specific as to what
aetiOn the field offi Wasex'ected to talk In his View, the intelligence
disseminated by the E03 was not ?actionable.? The Unit
Chief told us that he could not figure out why FBI Headquarters was
?pushing this stuff out? after September I I, and that other agents in the

field shared his views.103 WW

     
    

 

   
    
 
 
 

.Le 

 

 

11 told us that immediate
ll

   
   

"'ii'i?aesuitsd in? semantics-phone numbersto the'Fs'I: "Thus; it 


 

 

After the acting: Unit-Chief 2;er the Chuand ?'revieWing how?
was hrandliri?g?ies't   learned .th'atithe're
tires-Iii? oversaw guidancefbr howl
Should- be  ees ed by also said that
the process 'ini'place essentially b1 b3
contra-inedin Stellar Win-d reports,? merely?regurgitaed? information that, [3733 

 

   
  

by itself, was not actionable;  

re?Spon?sible for r-dra'f-ting the ECS, who simply performed this:  as

directed. Rather?rhe? believed the process Suffered fro-mailed; cit-leadership

 described the involvement in Signaerde up to: this; point as:
?happenstance? and said the FBI did ?not'haite, ?a realggood handle on it? He-
said  the deficiencies he identified wereeattnibntable-in; part to the
significant. resource challenges the FBI eneou-ntered'after September 11, but
he: nevertheless- cons'id'ere?d the effort ite reaper?id to the Stellar Wind
information as ?hale-baked.? He said. he: there-fare set?abeut implementing.
changes-Within: the CAU to better organiZe this effort", believed
would .iin ;1"ove? the quality of the intelligence disseminated field5
offices.  ii 7  - -

 

 

"increases Cooperation? w'ith__'NSA andiilnitiates 
 Inject-to Manage Stellar Wind Intermetian- WE 3?

 
 

 

   
 


.

   

Thee-AU Unit Chief said thatthe first stephe-took to improverthe

in Stellar Wind was to detail to the NSA one of?CAUi?s.
temporary duty specialagents. He instructed the agent to form a working:

group- at the SA to identify any problems  evaluate the quality of the.

inferniation provided in the Stellar Wind reports; as well aathe

[information that the FBI reported back to the NSA about, The 

Unit Chief. said he took. this step so: that the INSA-gatnedga ?ease :?agenjtis
perspective? on the type of information useful to FBI field :offi?Cesx-and also to
eXpIain to the NSA that the information that could bedisseminated about
the tippersshould include. ?context? and .?e'larity? sufficient to- ustify the FBI
conductingan inquir}r under the investigatiire guidelines.105 He said
he did not believe that the interest in obscuring the ?sources and
methods? associated with the information had to comproInise the quality of
the information provided to the FBI. He also said that the SA needed to

 

 
 

FBI agents? earl},r frustration with leads that provided- telephone numbers was attributable
in part to the. leads generated under this NSA- Collection activity. - i -

m4 The CAU Unit Chief recalled that the NBA had expressed frustration that the FBI
never providedthe NSA any responses to the tipped, information; 

20,5. FBI international terrorism investigations at thi?stimta- by the
Attorney General Guidelines for FBI Foreign Intelligence Collection and Foreign
(U)

   

  

 

 

understand how the FBI investigated intelligence that itreceived,E and that.
FBI-agents- did not haVCth'ikl'lDW methods-used to
 information  order to effectively the information:

 

The: CALI Unit G'hiefea?id that this:  effort occurred over acoaple
oif'weeks,  the temporary duty agent .driVi-?ngf to the 

-?to-the? nit Chief,- the agent" explained toalN SA Farmland-What the? FBI. Was-

- ermittedf?to do with .,certai5n types Flintlormation  that the NSA 'WOLild
receive-mere: feedback from  if quality? of??the S?seminab'le
ianrma-tiOn about} the tippers improved. The. Unit?czhief told us that
following thisexchange the improve the Stellar: Wind reports 
providing better information in {both the compartmented and tearline
partials-leaf: the reports. 

In addition, the ACAU Unit Chief told  that he too}: stepstoginerease
ceraperation Within the FBI betWeer: CAM, which was par-t. 0f anana?lyfical
?s'e?oti?on? that i-supported counterterrorism investigations,  FBI
Headquarters? International Terrorism: Wpejr'atiions Section, Which was:
responsible for, overseeing; FBIV-GQimterterroriSm investigations. The Unit
Chief that based on his eXperi?enee: in the new working 7
eeiixiterterrorismcases, he believed? W-asr impolitailt that ?theiCAU. 
Consult with. agents in the operational section aboutleads the CAU
proposed to set? he was confident could.
identify logical invest'i-gatiire steps, he thought they should. nevertheless-
coordinateswith the op'erati?Onali personnel to See if there Was: agreement and
to id'e'tern?ne whether a-lead?potentially ?eouldaffectt any ongoingoperations
that the. CAU was not aware of. Hetalso notedthat?hisuCAU? Unit Chief
snee'essors discontinuedthis practice, a deCisiQn'he'disagreed With- 
co'mplain'ediabout to the Section Chief for CXSbeeause he .believed the
program risked Ios?inga measure of effectivenessand "efficiency as a
consequence. 

Another step the CAU Unit Chief took relating to the 
management of Stellar Wind information was to open an. administrative file,
or ?control file,? to serve as the repository for all communications that the
CAU sent to the field offices containing Stellar Wind information, as well as
all communications the CAU received from field offices reporting the results
of the investigative aeti-  to assigned leadsl?l?? As
explained previously, the communications had been

HE 

    
    

 

 

 

dis's'arnina-ted? from a: Subf?g associated with the international.
f?iTIQriSm. iilVE'S-tigation. 0f "the SCPtemb?er attacks. Iii:  EC re?qIIesting
 ascontrolfilerb? opened. for Stellar Winci information=, th-ejc-Au Unit 
Wrote that. ?fad?ediicasted control file for this: project?Willibetter 'sche'ithe
spejci?c?: needs-2 of the and will admit an .??ditio?nal layer- 0f

security for the s-Ource.?

    

Win-d informati  
September-sq 2-002, andgive? thedesigngtio? From that b1- b3 ME-
I  "minated St?llar sent in 
connectionwithihe  ontrolef?e 107 The ECS We're?. Classi?ed at
the Secretleire-I- and, ?sumlar- to the Cs,wincluded a:
vague: ?gplanation aboutthe source o?ftheinformatien and a caveat


paint: ferw'ard, an 

  
  

    

 

 

10.7 'Thev'Uji it Chief told us that lDiyectorIMuellcr held a-tglephd?e??bgifqrencecal-1.




OpteberEZODQ Wifh theah?adis-cof. all FBI ?eldpf?ces; and ad?sed? mg

    

b1, b3, b7E

Headquarfers rwasgworkingfto'imiarow tile-process for disseminati?
information. to the field Cf?c?s  addingme context and clarity ?to the-communication?;
 Muellerexprass'ad hiSfCXI?ef?tatiOn-that-the of?ce's- wquld- act' on rthei?i?forim?ttion;
A?cgfdi?g.? (31131612., .DirieCtdr Mu??er essentially was 
sugareih??t?ol?f Was-1361113 used-i? ?D?ire?e-tor Mueller told- the OIGZIthat-hegdidndt .mp?an
having: 

 

16 heads of FBI field foiCes? about?Stellar 'Win?i'

     

b1,
b3,
b7E

 

 

 

. Several-months later? in January 2003-, the CAU Unit Chief sent an
LEG-toa?ll Fl field offices seeking ?to clarify the mission of . . as well
  unit?s distinct role in the participation in the global b1 b3
War; on terror.? The capabilities in exm?ining b7E 
telephone calling-aetivi?ty and its: liaison function with members of the US..-
intelligence that are ?in a unique position to provide potentially
act  .7

     

   

 

b1,
b3,
b7E

  Assigns CAI-I to NSA on Full-Time Basis

 Chief also assigned a team of FBI personnel to the NSA
on a?ful-l?time: basis to manage Stellar Wind information. The Unit Chief told
us that his temporary duty assignment to FBI Headquarters
was setto-zexpires he: and the CXS Acting Section Chief briefed Director
Muellers assiStant and. later Director Mueller about the rcle they
recommended that the FBI take in the Stellar Wind program? The. CAU Unit
Chief recommended co?loca-ting 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 
inVestigat?ive skills at the beginning of the NSA's analysis of Stellar Wind
information. Director Mueller approved the recommendation and told the
CAU Unit Chief to implement it. 

 

 

       
     

  

  

 er  ring b1 b3
1     .    13713 
_'De?6m'ber? February. began itsioowlooaj?tiori?eat
the N?SAtfo ?rfl?anege  FBIlfis i  This-eodoeafion
today. 1       

        
 

 
 

    
 
  
 

   
 
 

      
  

    

            

      

  

   
   

 
 

  

be he, 0' face La e-

2.



     

We

  (m

in. analyzing the apartment-*3 and this FBEI-is-invmvemont the 
Expandedeisnals- intelligence collectionactivityafter theiS-epitiember ?lil
attacks, it is important to Ji??ognize'thej'eX'ceptionel that
aerated at theztime. Mainly ant-italIaeifzzeC71g  us,
the Senses.ofsei?iSisland alarm. during-thisperiod,emanated the-Widely
Concern within the   that; a: SE?OridiWaV? of
attecks- The-Stellar. Wind program was-conceived and
implemented amid these ~ehallengingx'eireumStanees;.  

?liepter -d?oscifibed the-irate afJusece  *1?th
 {the inception and: early ?imp'lemeiltation ?of the Stellar 
program, including?: the Departmenri?isinitial: reviewsv?c?? the Egan-Wei?
Program. - 

W'eibelieve that :a phase oi the
Stellar. Windprogram Was. the; 'l'aeki'ofca sufficient number of Justice.
 attorneys read into-the? pmgi?am-to conduct an analysis of the
program?s legality. The White- H?ouse and according to Gonzales, the
determined who wiithiri the Department was permittedaceessr to
the rogram. We believe that Attorney" G?erieral?iAshcroi-?t, Whormet frequently
with the. President on- njatiorial security matters; was in :a position to-
p?ereonallynadvcicate 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 Ashoroft?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 ixvhether he sought
additional Department read-ins to assist in the legal analysis of the
program, how hard he may have pressed. fer theso additional resources, or
Whether he believed he was receiving adequate legal advice about the

program frOm You alone. 

As described in this chapter, Johan Yoo Was the only Department
attorney read in to work on the legal analysis. supporting the program from

 

 

through May 2003.109 As-desCribedin?llapterFour,
Depjartment:officialswho succeeded YOO concluded that the analysis You.
produced aas::signifieant1y ?awed and found: the legal basis for aspectsvof
the?program to 'be lacking. We believe that reading in Only one Department
attorney toan-alyze the?le?gality of the'progr?am impeded the Department-is:
abilityito aoond?uet a. thorough and. factually accurate legal analysis, and
undermined the Department?s early role in the program. In Chapter Four
 the harm- that resulted in "late 2003 and early 2004 from the

Department?shighly restricted accessto the program. 

We in: this chapter how the harm attributable to the
ddstice Department?s insufficient ear-1y 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?cialsfrom and members of the FISA Court readji?nto Stellar Wind
when-jprogitamderived information started being disseminated as
investigative leads to FBI field of?ces. In our View, it was: foreseeable: that
.Stellar?Wind?derived int-hrmation would be included in FISA.applioationsilim
DIP-RE Gennsel'Bake-r told us that the Departmenth counterterrorism and
c?ounterintelligence efforts rely on good relations with the FISA Court 
that condo}: and transparency are Critical components of the relation-ship
B?k?ri'attr?iibuted the D'epartmentis record of success with FLSA applications
and  improved coordination between intelligence agents and prosecutors
togthe strong relationship that the Department built the Court-.. Baker
believed: and; we agree, that it woul have been detrimental to the
relationship if the COurt learned that information 'frOm Stellar Wind was

 

.109 As was the Case with Ashcroft, because Yoo did not agree to be intendeWed we.
were unable to learn from him what if any effortshe made either within the Department or
at-Tthe White House advocate for additional attonieys including his supervisor in 
to be read into the program to assist in hislegal analysis. HoWever, in his book, ?War-by
Other 'wrote of his experience Working on the Stellar Wind program: I

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 DLC, which
usually assigned several attorneys to work on an opinion. Operational
security demanded by the war on terrorism changed some of standard
operating procedures.

War by Other'Means at 101.

The restrictions the FBI imposed on the use of program~derived information A
that it could be used for ?lead purposes" only'and not for ?legal or judicial purposes? (such
as affidavitslw reflected a good faith and reasonable effort. HoWever, such restrictions
Gould not-ensure that programuderived information would not appear in FISA applications.
Indeed, this Eventuality led to Baker?szdiscovery of the program. 

 

 

application?sw-ithout the Court-being told socinadvahce,

 

Yet we, are not a?Ware-Of any effortor considerationon the part-oi
Attorney General A'Shoroftaor officials at thefW-hile House-to 
Stellar Wind-issimpact on Justice Department Operatibn? bY-l?adi?ggiil.
any O'IPRoffici'als-gor members either-ISA Courn In- fact, as. described
this?chapter, Baker was reaj into Stellar Wind only :after.hearingii1?9mg an
?there is SOmething spooky going on?-with- thei?co'lle'ction
communications-and SubseQuently reVieWing 
application that cent?ained ?strange, unattributed? language-{that the: FBI
Would? not explain to him. Baker was read in when Daniel Levin, then
Counselor to'A-shcroft and; Chief of Staff to Mueller, pressed White House
offieials farther-clearance.  i  i - - 

 

Moreover, White Houseofficia?ls initially rejected the idea of readi'ngin
members of the Court,  than too?kn?o act-ion avatars?Latin, who
together With Ashcroft agreed with'Baker that the Court ,zneededrto be
informed ?about the program, continued to press the issue Was not 
Levin-Wasjrequired to sign and?le a PISA application thatrefused to
handl?ebeeause. it contained? Stellar 'Wind~derived information that. the
decision was madeto reading single judge (Presiding Judge-?Lamberith,

.fo-lliowe by Presiding Judge Kollar?Kotelly).

The decisions to read in 'Bakerand a member of the FISA Court,
which in our VieW?Were unnecessarily delayed, Were.limp?ertant steps :?in
preserving-the relatiOnship the Justice Department hadbuiltIWitih the
Conrt'. .HOWever, we believe that once StellarWind?S impact an the Justice
Department?s FISA operations became evident,- limitingreadsins to ausingle
OIPR official. and a single Court judge was unduly aresstricuve and.
short-~Sighted. This. chapter described how the scrubbing procedures.
imposed by the FISA Court and implemented by OIPR to acCOur-it for Stellar
Wind-derived informatiOn created cOncerns amOng some. attorneys
about the unexplained changes being made to their applications. The-
s'crubbing procedures also substantially distorted the assignment of cases
to PISA Court judges and by Novemb O4 resulted in Judge
Kollar~Kotelly handling approximateh ercent of all FISA applications.
In our View, once Stellar Wind began ffect 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 judgesreac?l-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

   

 

 

 information to FBI field-offices for inVeStigation. while
protecting the source 0f the; information and themethod by .it. was
  e?orlcluded that the ?50 meet th? I I
37? Were re'asonable; The FBI personnel assigned to th
 developed a: prOCess for receive-g; Stellar'W incl ?31:
report-3,,reproducing theinformation in a noncompertmented, Secretylevel 133:
-  . b7E

 
 
 
 
  
 

   
  

 

Cormat,  disseminating the informationin Elejetronic Com? titans?
 to: thei?appropriate field offices for investigation. Th 
 Cs disseminated to FBI "field offices alsofplaced appropriate:

how the-inf01?1matiIOn could be used, inS'tiuctin'gjfield 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 field offices we. visited as
part of ',our? review generally were familiar with the restrictions.

We found that the eXeeptionallyacornpartmented nature of
 .tellar? Wind created deficiencies in the initial process- for handling
pregramderived information  understandably frustratedagents
assignedto, leads. The limited resources 131,133,
hampered ability- to ME
. {ith relevant. public source
"eld offices for investigation.
was prohibited- from disclosing
cemetomed to receiving with

   
  
 
 
 

 Stellar a . a 
information before-dis i 
More Signi?cantly, the
information that agents adltion 
leads that-required investigation. The
consequently suffered: from-vagueness aboutthe Sour'ee 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 possin were in- contact. 

  
   
  
    
 

'We found that the Sought over time to address these deficiencies
and. improve the effectiveness of its participation in, the Stellar Wind
program. In April 2002, transmitting Stellar Wind?derived leads to FBI field
o?ff-iees became a priority of the Communications Exploitation Section, and
within'it, the Communications Analysis Unit The first chief of the b1,
CAU assigned a team of FBI pe fullwtime at the SA on b3,
Stellar Wind and to initiate  ., i roj ect to. manage the b7E
participation in Stellar Wind. As we iseu 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 offices
investigated Stellar Wind information, which improved Stellar Wind reports
and the loads that were. disseminated to FBI field offices.



 
 
     
   

 

 

 

 

 

 


LEGAL REASSESSMENTQF seamen wire

   

   

(MAY  THRGUGH MAY 2004b A i  I  

BY early  While the Operation?of the Stellar Wind (programhad
evolved, particularly with respect to the means by which intelligence from
 program Was 'provided to the the-program .sti?lil?remained legally.
premisecl on ohr-i Yen?s Nov-emberaom and October 2002 Office of Legal
counsel memoranda. 

This-chapter describes the inotal period between May 2003 and May
2004 during which Yoo?s departure from the Office of Legal Counsel and the
arr'iVal of new of?cials at the Justice Department resulted in a
comprehensive reassessment of the Stella-r Wind 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? modifications to the Operation
of the program, and-also acntributed to the decision to place at least-One

aspect?of' the program. under authority". 

Section I of this chapter discusseshow personnel changes. within the
Office Of Legal counselled to a .re-eXarnination of Yoo?s legal analysis,
culminating in ca Justice Department legal 'positiOn against continuing to
certify the program and the resulting dispute with the White House. Section
idesoribes? how, faced With the prospect. that the Attorney General, Deputy
Attorney General, FBI Director, and other senior Department officials 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. 

E. Justice Department Reassesses Legality of Stellar Wind Program



A. Overview of Office of Legal Counsel (U)

One of the responsibilities of the Assistant Attorney General for the
Office of Legal Counsel 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 offices. within. the Department of
Justice. 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

 

 

legislation for Constitutionality. EXecutiive Orders propo3ed' to be issued by
the President. are reviewed by OLC as to; form. and legality, as?are, other
matters that reql?re the President?s-formal approval; also review
propo'Sedorder?sj by the Attorney General  all regulations requ-iringi'rhe
Attorney General?s approval. (U) 

a. rearsonaeli?e-haages within office Ortega! soonest {t1}

John Yoo' adfviSed- Attorney General Ashcroft. sand? White-"House officials
ofn- the Stellar Wind program from the 
through Yoo?s resignation from the Department in May 2008". Upon'Yoois
departure, Patrick Philbin told the OIG that he. Was selected by the White
House. to assume Yoo?s role as advisor to the Attorney General Concerning
the program.?1 With this personnel change came a ireS?h retrie?w of the legal
underpinnings of the Stellar'W?indprogram. We :deseribexin. the following
Sections the oircumstances leading towhatuone official described 

great rethink? of the program. 

1L. Yeats Role in the. Program
(October 2001 through-may 2003;) (U5

On September 1 2.001,..ar1d through November 2001, Daniel 
was the Acting Assistant Attorney General fer not, read
into the Stellar Wind program. Jay Bybee served. as, Assistant Attorney
General for OLC from?November 200. l-until March 2003., when he became a.
judge? on the US. Gourtof Appeals for the Byheie 3180' Was
neverre?ad into the Stellar Wind program; As discussed in Chapter Three?
John Yoo, a Deputy As'siStant Attorney General. in OLC, had. sole
responsibility within that office and within the Departmient o'fJu?stioe- for
developing the legal analysis relating to the program: until May
2003.113 B-ybee 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

 

1? On June 1, 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 (U)

Bybee was nominated by President Bush to serve on the Ninth Circuit in May
2002 but was not confirmed, by the Senate until March 2003. (U)

?3 Yoo?s major opinions about electronic surveillance and Stellar Wind are

summarized in Chapter Three. 

 

 

 

the quality-of the legal research and soundness-of the legal analysis. In
add?itian, Bybee?Stressed that the-Assistant Attorney General must be: aware
of all opinions that-issue from the OLC, Byb'eegsaid thatthe-OLC AssiSt'agrl't
Attorney General has  obligation to ?See the? whole picture? and is the only
the offiCe Who~-knows the full range of issues that?tare being
adressedfby the Q-LC. Bybee also said the Assistant Attorney General is
the only officialin thatoffice who can assure that opinions remain
Consistent, Bybee stated thatthe AssistantAttorney General, as a. I
Senate?confirmed official, has urltirnateaCcountabilityfor the work- o'f'the.
offiee. Bybee noted that, by contrast, the Deputy Assistant Attorney
General position, though political, does not require Senate confirmation. (U)

Byb?ee told the DIG that it would not be unusual for a Deputy
Assistant Attorney General such as ?Yoo to have direct contact with the
White House fr- the- purpose of rendering legal adv-ice. .Bybee stated thatxi-t
is ?not. clear? whether or to What extent the Attorney General needs to. be-
kept in'formed?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, 5but that it is" ?not the White House-ls Call? to make Such
assignmentsbecause the.White House. may not be aware of What advice the
OLC is providing to other Execu?rtiire Branch agencies. By?bee told us that
duringhis. tenure as Assistant AttOrney General he did?- not know that Yoo
Was wei'king alone on a senSitive :c'ompartmen-ted program, and he had no-
kn?ow1ed-ge. of how YOO came to be selected fOr this responsibility. (U)

Philbin said he believed that White House: Counsel Gonzales: and Vise
PreSident Cheney?s Counsel David Addinthn had selected Yoo to draft the-
opinions en Stellar Wind and other national security pregrains, and
that Yoo was the ?obvious choice?" to. aesume? this. role because of his
expertise in war powers issues and the authority of. the
Commander~in?Chief. 

Gonzales told the OIG he understood that Yoo had asked others
within OLC to help out with specific legal issues during this period without
telling them what they were being asked to assist with, and Y00 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 testified 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.)

 

 

As'noted. above, neither Yoo' nor Ashcroft agreed to be interviewed for
the i?nVe?stigation. Other WitneS'Ses gave the DIG. var-ions aeco?untsof
Yoo?s .intjeractiOII?S? WilliiAttOrnEY GS-Ii??iral A'ShCrOft'a?d With the 
concerning? the program. Gonzalestdd us: that? Yeo-regu?larly advised".
Ashcroft on the legal aspectso'fitheaprogra?m So Continue
to Certify itas to form and legality, Gonzales: also said: that-it; was
incumbent on Ashcroft as Attorney General to satisfy the; Department?s legal
obligatio?s regarding the program Gonzales told us: he thus understood
Yeo?sopinions as representing-Lathe opinions of the Department. Hewever,
Gonzales actmoeled?ged that White House officials consulted with Yoo and
sought his advice without General. or .Byb?ee 
walthou?gh Gonzales also said they did not seek
Department approval from Yoo concerning the Stellar Wind program.

Other witnesses described their concerns regarding Yod?s direct
Contaets withthe- White; Hon-se,  With- Addington. andiGonzales in
particular. Philbin said he toldA'ddin?gton that'Yoo?s direct access to
Addingtonwon legal matters was: ?net a geodzway to tl'iing's,? referring to
the lack of-overSight of an OLCi'DepuLyAssistanit Attorney General ?bye
superV-iSOr. Philbin stated that there was nothing erng with assigning-a.
project to 'asubordinate, but notwithout the head of - the office knowing
What the subordinate was doing. (U) 

Jack Goldsmith toldru'sthat when. he became the-Assistant Attorney
Generalfor the-Office off LegalCO-unsetin OCtObsr 21003, helEemed-that 
Yo.o7s :eontaCts with the White House had had the effect of cutting the
Attorney General ?out ofthelloop,? practice Goldsmith said he resolved not
to. continue with any OLC. attorney. (U)

Goldsmith also told us the WhiteH-ouse had Wanted Yoo- to replace
Bybee as the Assistant Attorney General for'the Of?ce of Legal Counsel
following Bybee?s confirmationas 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 OIG that" Yoo visited the SA for a brie?ng about
the program at some point after he had drafted his November 2001, legal memorandum.

W5 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. Iii-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 Yes or participated by supen?ising his
work. In addition, attorneys from the Department?s Criminal Division and from other

(Cont?d.)

 

 

2. Pane-is Replaces-sires 

Patrick Philhi-n joined the Department ass-Deputy Ass-tetant Attorney
General 'i-njther'Office of Legal counsel on S?epternbjer'4; 2001.117 He was
read into the Stellar Wind prong in late May the
Department. Philbgin "said that he, ascompanied by YOU, wasrread into the
program-by Addington in Addington?sof?ee in, .theijId EXecutive-D?ice
Building_.- Phil?bin told us that Adding-ton, provided an? overview ot'the
program, describing the two basic categOIies of collectiOn as: ?content? and
data? Philbi?n said that later, based on his legal analysis o'f'the?
Stellar Wind program, he deVelopedt'he ?three baskets? terminologth
describe mOre specifically the three types of collections. 

 

*Philbin, said he was told. by Addington he was being: read into the
program because 3600 was leaving the?Department and another attorney was
needed to review the thatsupp'orted theeresidential
Authorizations and to then advise the Attorney General on re'certi?ring the:
program as to form and: legality-.118 "Phil-bin 'said'he also  
the Attorney General were the only Justice Department officials who. were
-Sus'ppc5sed.to be involved- in this: ?review anal-recertifieation? process. Philblin.
told-us he was aware that OIPRC?our-Iself amesBaker had also been read.
into the program; however, Philbin stated that Adding-ton told him he should
noittdi's'cuss- the] program with Baker.  Should.-on1yaadvise th'elAttomey
General on the program. Philbin'said he believed Ad?dington-gdid not want
?Philbin speaking With 'B'akerabout the program because Addingto?n had
always. taken the position that the program should be kept as
compartmented as possible.119 

 

agencies were regularly consulted by You in his draftingof the legal-memoranda'on the
legality of this program- Yoo told the Department?s Of?ce of ProfessionalResponsibility that
Attorney General Ashcroft determined who was allowed to work on'the mentor-ands for the
detainee interrogation program. Transcript of Interview of John Yoo by Of?ce of

Professional Responsibility, June 7, 2005, at 12. 

11? Prior to joining the Department Philbin had been at a private law firm and had
specialized in telecommunications law. (U)

?3 When asked whether he had any- knowledge of the program prior to being read
in,.Phi1bin 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
wank aIOne on thispart?icular matter. You did not state who had given him thi'stinstructi'on.



?9 Baker told use-he was not similarly advised to avoid discussions with Philbi-n
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 sever-a1 conversations
with Baker about the operational details of the program as Baker understood themat the
time. (U)

 

 

The-day after being read? from the
Office- ;of to the Office of the Eeputy Attorney General. to
bzecomo  ASSocii?t?fi-?te H.973qu Attomoy  still
_1:otaif131od his QLC. Deputy" As?Sistant AttOrneyG?oneral position and: was5?tl1us'
?qualohattged?? Philbin took over the "-natiohal- from: David
Ahadirccently .lcftiher?ep'a?rncno Philbin stated. he was
?somoWhat'ooi-merhod? that he would be: adviSing-the Attorney-General on:
the ?Stelflar 'Wind. program even though :13 spotty, Attorney General Larry
Thompson, Phil?bin?s .supefviisor, wa? not food intothe program. 
 he antitipated at the 014111.361: that his?WO?t on fho?rprogram
wouldmt require: a lot {of his: time, 

3. Initial (concerns with Yoo?s Analysis (UV)

Philbin Said that after ?herwasareadinto the-Stellar Win program 1'16.
?b?elieii?d' diligence? to learn abouttihe prog-nam.. He

 he reVi'eWod YO?o?s elegarl? opinions about the orproga'famaandrealized-that
Yoo  omitted from  analysis any irefel?ence to {he  provision
alliovx?r?i?ggtheinterception ofxalec-tmnic communications withoutWarrant
for-oayeriod a CongreSSisonai declaration of War: 36.6150-
Uy?Sg?; lg 1811-. ?PHiflbinolso Stated opinions werepren?sed
on fha aSsumption: thato-FISA did. not ?expreSSlyie?L-pply to?Wart'ime operations,
an. assumption a?fla-t from. p?erspoctive: the 2 opinions-1
?prolematic';? 'Philbin- said that this. gap in was-his first
indication- that-1:116 logo} '1'eas'0n-ing underpinningthe-Presidentiaf V.

Authorizations-Wodehaveto be revisited.

   
   

Phi-113111 saidthe second indication

of pr?obl?m'sr with 

 

    

 

 

 

 

 

 

13." See? Presidential Authorization of April 22-, 2003 at para. The
April 22, 2003, Authorization-was the only Authorization personally approved as. to form
andle?galityby?Yoo. He: approved the-Authorization on April 18, 2003, five days before the.
date of?hie talking points memorandum. 

?3 In fact, as discussed in Chapter Five, the reasonable articulable 
Standardi was the Only standard the government sough: to apply to its authority to query
the ermail meta data cOllEctiori after basket 3 of Stellar Win was placed under 

authority in July 2004. 

 

 

        

Philbii?lf said he errors  the Yoo?s talking pornts docurnent
represented?asigni?oan?c step toward the realization that the Whole legal
up.? Philbin told us he felt he could not rely on the
  and that he needed to ?build from the ground up.?

 

4f.

 

 

 

?23 Philbin. told us he visited the NSA three times during the summer of 2003 in an
effort to. learn 'how the program operated. Several officials we interviewed told us that
Ph?bin understood the program well, in part due to his background in telecomnmnications

law; (ll/moors}

 

 

 

 

 

Ph??bi?n said?th?at he and later Goldsmith recognized that the existence



    

 

 

 

16; Decision- to Draft New OLE Memorandum (U)

- In brought his? concerns. about  lggal;
 Gama Ph?bin told Ashcm'ft that?mg were
the lagal analysis ,p?rog?ram-  ?rnbamy??ai;
 (.C?ncmsi?a?s reach?d, Philb?in told us that he beliewdthat since.
  would not-Change there would b.6110 need ta  then-111.3?
anathaan'?lytica?y problematic aspects of the program, Phil:ij said he},

 

1'23 As; described iilater in this chapter, the term ?acquired? Was not; clarified untilth'e,
Mai-ch 111., 2004,, Presidential AuthoriZation. That thatmem ?ata was
?*acquired? . a when, and only when, the Dapartment of Defense has searched for and
retrieved-fatal: header/rauter/ addressing?type information, including telecom mun-itat'ion's
data (and ?notwhen?the Department obtains such
?6 infra'mn' ild . 

      

    

I  11S dialingiypa
fo Kthn?tionh??

 

 

 

thiam'f-Qm' advised  imam ?COHti?nue the Program "as to
form endlesslityz?  1  -  

However; Philbin also recommended that-a new 0110 memorandurn be
drafted) Phil-bin. Ashcroft continue
 thlis and asked to be" kept Updated: on ?Phi?lbi??is?f
progress.  meeting; with. Ashcroft tedijseuss: theissue, Phi-Ibis said he. 
:?to writes. new memorandum on the legality of 'Stellar'Wi'nd

prqg'ram' r1125".   

 

ReasSes?sment Legal'Rationale fr the Program

 

1-. .GoldSmi-th Becomes-0140assismm Attorney
General (H):

.J ack Goldsmith told}theQ-IGethathe was recommended for?tjhe.
ASSiStant AttorneYiGenerali pOSi?On?by "5600 after 00 Was-not: selected for the
posses. Goldsmith-stated  during interview for:  fpoSitioni
Attorney GeneraliAs?hc-reft and AShcro'ft?s David Ayres
   Attorney Genera mus-t keep: the.
Attorney?eneral informed-of matters the Office of Legal?Counsel'Was. 
working-{on and? -stressed; the mportance of: keeping the Attorney General ?in
the imp.? Goldsmith told the-015Gthat he believed 
raisedthe?se' issues as a: result- of their experience-with Yoo. (U) 

"Goldsmith was selected for? the position, ceri?firmed by the senate, and
on OCtOber?, was sworn in as the OLD Assistant Attom'ey General.


Aceoi?dingzto' Goldsmith, he was told by Department colleagues that
the procedures ?histOricalljf foll'OWed. in drafting its opinions Were
changing'and that the Attorney General was being circumvent-was not certain at the time that Ashcroft fully Understood
th  ecause the subject matter was ?dif?cult.? Philbin also stated
that or ten managemen purposes, he needed to first make sure that he toofully
understood the issues before raising his concerns to others. He said he did not just want
to be. ?a naysaye'r? 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. tobe
?carefully done to protect the. President.? Philbifn- said he th'erefme believed that the OLG
legal memorand?ahad to be, rewritten to achieve that objectiVe. Philbin told us he also was
concerned that the. program not appear. like a but rather as a- 
approach :to cellec'ting intelligence with adequate controls. and oversight; In this-regard,
Ph?ilbin emphasized. that it would heirnportant to demonstratethat'the programhad
appropriate resttiCtions based on the law, and that the restrictions guarded against abuses.

. f)

 

 

 

process. Goldsmith said that/OLD Principal D.eputy?ASSistant Attorney
General Ed Whelanalso told him that built on custom.
but still ?huge-1y important-,3? has ?broken sows? prior to}
Galds?m?ithls arrival. as the Assistant Attorney General. (U)

?Goldsmith told us that he also becameaware that-Ashcroft- sensed' -
there Was :a White ?House?iffi?cexof Legal Counsel relation Ship: over which-
Asfherpft did her have full control. Goldsmith, said that when he became the
OLD Assistant-Attorney General he? immediately movedto ?bring things back
tenormalcf? by, for asample', making Sure all OLLQ memoranda were
proVi'dedto- Client agencies for review andinput memoranda
were reriewed by tIWo 'Q?LC-deputies, asswas the traditional OSLO maleticegl?26



7 Withxregard to the Stellar Wind program, Philbintold Us he. had
always intended: to request that Goldsmithbe read into the. program after
Gel'dsmith was confirmed by the Senate; Phil-bin said. that he went to the.
thite'rHouSe- and asked ?Addington  possibly Gonzale to; have
Gold-smith- read into the, prO'grani.? Philbin stated that Addingtontold 
that he would hare: been with not.allowi-ngGold-smith to 
and that Philbi'n W'oul'c?lt'have. to justity- the request before-Addington would
convey the. request to- the President. Philb?in told us; he explained to
Addington that he Would need to have  headiof OLC Sign Off on the new
me?merarldum he Was writing or the memorandum Would lack credibility.

(Uf/ 

On November 1'7, 2003, Goldsmith Was read into the Stellar Wind
prog-ramby Addin?gton in Addington?s. off?ce?z7 Philbin was-also present.
On the way to the .readsin, Philbin told Goldsmith to ?prepare-for your mind
to be some. Goldsmith told usthat the read-in took approximately 5
minutes, and when it was? over he remarked to Philbin, ?That doesn?t seem

 

1126 Goldsmithls. view-of how the OLG should operate was later echoed by a
subsequent head of the office, Steven Bradbury. In a May 16, 2005, internal OLC guidance
memorandum entitled ?Best Practices for OLC Opinions,? Bradbury emphasized that OLC
legal memoranda should re?ect the positions and expertise of interested agencies, and he
alSD stressed the importance of a, rig0r0LIs peer review process'within the office before
finalizing OLC memoranda, (U)

127 After Ashcroft, Yoo, Baker, and Philbin, Goldsmith was only the fifth 11.01in131
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.
Hetold the 01G that it was extremely beneficial to have another attorney. working with him
on the project. Philbin also told us he didnot press the White House to read in additional
attorneys during the summer 2003 period before Goldsmith arrived at the Department.

 

 

b3,

b6

e} 

 

 ?G?Ol?dsmith? said that 3: weeks laterlafter studying the matter, 
wouldi'eome tea?ifferent?ecinoltlsionf (UH:  

 

2i NBA Denied.- Access to 0.1.6 Memmanda 

one of the first Stellar Wind. meetings Goldsmith  Philibin attended
after ?oldsmithls was held in the DJ 
Addingtong,_NSA'  General Connse1 Vito Petenjza, and, NSA Inspector-
General Joel Brenner. Goldsmith stated that the..NSj-A inspeeter General
requested a eorpy? of the OLE legal memoranda as 
partoiffan ahd?itfthevN Of?ce-bf the Inspector GeneraIWanted tel-conduct
ofJ-the Aeeording Ito GoldsmithpAddington "ibit [the Inspecth
Generate] head of and. made it clear that the memoranda would not be
prodded to the-NSA GIG, 

  

Goldsmith said he learned either atj?that meeting 0r shortly ?thereafter
that of General'Counsel also had been denied access" to the
DEC. membranda, Bob Deitz, the NSA General C'OiJnS'el during this period,
told the,  GIG that he was heifer permitted to seeiYQO?S "legal memorand'a.
Diets stated that he CalledAddington several Weeks after thefi?rst
signed and aSlizedfif meanness a COPY Of 
the ?N?Ovember '2 001,, memorandum), and that
Add?ington, responded ?nof? Dietz said that Would only read ?a
paragraph or two? from the memorandum to .hirnrl'over a. Classi?ed telephone:
line. 'Deitz stated that he never .advisedlYoo on his legal analysis, although
he-l?ricgiidadvise, NSA Director Hayden that he "thought the program Was: legal
 Within the President?s-authority.   

 

The DIG also-interviewed  I .?the Associate. General
,l for OperatiOns- during 3500?s  Goldsmith-?s- tenure in OLC.
   toldusxthat he was net?t-rou-bled by the fact that other senior NSA

 had been d?eni?e to Yoo?s legal memoranda, and. that he felt
no; need to review them;   stated that his primary concern with
reapeet to th is ality of the prOgr-am was Whether-?Justice was comfortable
with it.?   also stated that he assumed that the Justice Depart'rnent
would find 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
previded 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 codld not. ?draw a
good inference.? from that fact. Goldsmith emph?a?siZed that under the-
?Stellar Wind program the NSA had been asked to do something contraryr to
its Ordinary practices, and yet was not allowed to review the? legal

    

 

  

lea

 

    

 

 

 

?jus'tificatijogjns 1'91.? b?in?gapermittgdi1:0:de it; Goldsmith-Itoldusjhe;helicved
that   might 1'1an problems 01' mistakes in Yoc?s -?a1_1a1ysi?_s
6314377   had: it. b?en his. mammal-Eda,

 

:Gdld?smitli- told us that upon becoming then-Assistant Attorney?General
 intended toE reverse the: pract'iceuof keeping OLE memoranda ?closely h?ld,
anduthat he also: decided he. Welild 113631; client expertise in drafting
thesis documents. (U),

G'colldi'smith Jq'ins- Effogt-ta Reassess? Legal Basis for the

   

 

e111 the mm thraeWee?ks following his. reactqn t0   
Program Goldsmith re?ewed several documents to g?duaate. himSelf ab out
fh?-prograim. mEmoriandu-rn that-Ph?iI-binhad ?already
  includedga dGSC'riptiOn ?o?f program Worked
0135*" :m?moranda, and older memoranda. condemning
After  the:
program, pmvided Ph?bin With research and hglped
 draft-memorandum. 

GO?ldESmit-?hzstamd that Ph'ilbin had: dens an: ?amazingly her-dim 01b? in
17? c?emng the Program- b?l??di ?nin?etY-e?in?soutbf  hundred?
?aftG?IEYSin Phil'bihb position, havingbeen askedisimply to Opine as to form
and legalitya would  just; 'relri?edzrori the spreme . of?ce-of Lg 
 Gbld?smiih Said'that Philbin?77hrawever, was. not convmced by
thefi?ifoiie: didnotrely on?iemi In- addition,
actua?y implemented at the NSA before ?adVising'the?AttorHEY Genet-31 on its.
legality.  

 

     

 

 

 

 


1

 

 

 

 

  
 
        

:th?e'excep?ons to this-requireme?f; Go?I-c?isrmith latter ?Wro?t? In  16g
memora?dum reassessi-n?g the legality of the program that a proper analysis

 

 

 

thgaStelilar Wind Program? {Goldsr?ith Memorandum, May 6, 2.0043. 
dismissed. intisect'ipn below. 

   

 
 

?rmw- grim

 

 

 

not consider FISA in isolation? but rather must
cans-ider whether Congress, by authoriZing the. uSsO'f military tome against
exempts? such surveillance frcim PISA. Goldsmith
censuses that this reading of the AUMF was correct because 
  Resident to; uses-?all necessmy and force? against
the-Enemy that attacked the United States 011? 200-1, and. to
any .futureacts of international terrorism againSt the United
States"   enemy 4? authority that has long- been recognizedrto include
"the 11.136 'of'isi'gnals ?ltelligence as a military tooL i? i -- 

 

Alternatively, Goldsmith reasoned?that ever-1 if did not-
surveillance under the=program- the restrictions imposed by
PISA, the question to warrant thc'application Of
the dotting-z; of cons?tutional avoidance-,3 and therefor-c should be construed

riot tdtj'Pf0mb1t the aC?Vity'lSl 

   
  
 
 

 

 

 
  

dum, Goldsmith concluded that if the
arguments under the AUMF did not create

   

 

.?ambigtiitty as to trigger the doctrine of ctm?stitutional avoidance, FISA. as applied
would rc'pres?nt  on the President?s cxc?usch. authority as
Commisnderdn?Chief in wartime to protect the nation from attack.

 

 

 

   

Stellar wary  1,193me
Januarjyrizooepaa I 

      

'Duri?ngulate 2003,.- Goldsmith. and. Ph?bmcontiinued their-analysis of.
the. legal. bases-for the Ste?ar: Wind program. time Philbi'n'and
-G?Qld33?mitth?l?Btth? only two Department efficiaIS-ih ja'position 
Attorney G'Eineralya?d White- of?cials on the status of their legal,
reasSes-sment and its potential Vl?ami'?eatio?s the operation of the

 

With the existing Presidential Authorization: set. to expire 93:1 
December  [200.3, iPhilbin metwwith Ashcroft on
Dina-camber 23003,. to adv?iSe him on-rece'rtifymg the program. 61s.. torform and.
'Iegaliqf.. Goldsmith Wrote iri- notes?, that he mai?tai'ned duringmis .t'in?ie
peried-thatat. the meeting he and Phil-bin ?note?l problems gently? to;
A3h;crofft,- Goldsmith- tolid usiAshcro'ftIWas ?extraordinarily 
?Pl'?lbiri?e efforts to and made-dear
  "the program had tabs on s?o?ile'galfbot?ine

 
   

Gold-Smith. adVised Ashcroft that, despite concerns; about the Vplzogmm,
the December 9, 'G??ldsmith

 
 

Philb'in, Goldsmith? Carney, Mne?er, Gonzales, and others; We also reiiedon  biffS 
Goldsmitli?s-contemporaneous notes, Goldsmith?e chr0nology of events that he wrote- during
thi'speriod, Mneller?s Program-t Log, in. Match 2004., and Attorney
General {Aishcroft?s FBI security detail log of events that Occurred while Ashcroft was
hospitalized from March 4 through March 14, 2004., among-i other documents. (U)

13? James Carney became the Deputy Attorney General on December 9, 2003, but
was not read into the program until (Net 2 months later, (U)

 

 

later :.advisfe'd Ashcroft to" -*oerti?fy thedanuary 14,, 20.04:, Authorization as Well.
Goldsmith told us he made theserecommendati?ns to Ashoroft with the
 although he believed YD 03?s imemoifan'da- to be 
hadnot-y?e?t concluded th-at'the: program itself was?legai, 3' - 

Based on Goldsmiths advice, Ashcroft certified the December 2063,,

  14?, 210.04,.Authorizations. . 

 
 

21h. DieCembe?r 201038: Philbin and Goldsmith informed Ashcroft thatthey
believed Corney, who was sworn in as the- new Deputy Attorney General
December-2003', also needed. to be read into the program. Phi?lbincsaid he
justified this request by noting; that he would be traveling abroad for
 later that ?mOIltl?l on an unrelated-Justice Department.matter.135 (U)

 Goldsmith and Philbin-rnet  Addington..and
Gonzales-?at the White Hones to express their greeting concernsuabout the
legallunderpinhings for program. G?o?ldsmi?i Said he told. them that? QLC
 not-sure the program couldsurvive-  its current farm. According to
 nbtess - these diScuSSiOn's did? net contemplate an interruption of
the program, although the White House represented that it" would ?agree to 
pull  plug? 'if?t-he problems with the program Wetter-four-id to: be suf?ciently
Serious; Goldsmith- told us that the White House; 
 - told him .riseveirai times? that it would halt the program if'the
Department found that it could not be legally. supported;  1    7 

he recalled  Add: 

    

were fotind, 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 ?mere force? his ?serious dOubts and the need to
getmore help to resolve the issue [as soon as possible].? Goldsmith also
told Adding-ton and Gonzales that he needed more resources to continue
examining. the legality of the program. They responded to this request by
telling Goldsmith that Philb'in should devote all of his time to the project.

 

135 As 'discusSed in Chapter Three, Comey?s predecessor as Deputy Attorney
General, Larry Thompson, was never readinto the Stellar Wind program despite Ashcrofts
toquest tothe White House on behalf of both Thompson and Asher?oft?s chief of- staff.



 

 

 

Goldsmith told us that .he askedto ?have?Comey read into  program,
According to Goldsmith?s notes, Addington and Gonzales: ?bri'stleldl? at that
suggestion; GQIdSmith told us he made the-request for Comey tobe read in
because hesbelieved he would need. the Deputy Attorney G'eneral?s
-ass13tance to help ?i?make the case? to the White that the program was
legally ?awed. Goldsmith also stated that he wanted Comey read in
because, as the Deputy. Attorney'General, Conley was.Philbin"s direct



Wejasked' Gonzales when. he firet. became aware that the Department
had; concerns about the legality of the Stellar Wind program. Genzales
stated-that he remembered that. sometime after Ph?ilbin 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 u-she- thought that Goldsmith
andehilbin?s review arose out of condemns about Yoo?s November 2001,
Opinion and that their review was-limited to that document. Gonzales said
that Geld'srnith periodically told that reviewing the program
 that'solme questions'had been raised or that some changes to the-
pr?ograrn 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 specific discussions
with Gold?smi?i about OLCisconc?ern?s until early March 200.4.

In contrast, Goldsmith told us he had been clear? with
Gonzales and Addington? that the Office- 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 officials the same caveats he gave
Ashoroft 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 Addin?gton and Gonzales
pr?e?Ssed Geldsmith on his reason {Or the request and continued to express
doubt that additional resources were needed. However, in late January the
White House agreed to allow Comey to he 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)

 

 

.6. Deputy Attorney General Gamer ?st-Read into the
Program 

foomey- became the Deputy Attorney Genetal on December 9., 2.1003,.
and  read into the  Wind pregram on ?February- '171, 2004. Gurney.
told: H?s-that he ?hadnno awareness .ofthe program4-prior to. being read "in. He
said he'legarnecl. after his readuin? that-Addington had resisted Goldsmith and
Philb'in?s?r- efforts to have him read in earlier. Cortney saidAddington Wastv.th'e- 
?I?gatekeeper? for Stel-larWind and Wan-ted to keep: the program a-??clo?se hold.?
(U) 

.Comey told us that SA Director Hayden personally wanted to
conduct Comey?s readwi-?n to the-program. Hayden read in 'Co?rney at the:
Justice. Command Center ina briefingthattoo?kappmximatdy 2-0 to 30-
 C?orney width-at, at the readin, Hayden. eXplained?ithe-?three
basketsConley told us that after Hayden left the Cominand' Center, Comey
and Philbi?n continued .disoussin?gthe program. Phlilbil?l: told Gamay that
there?were- problems With  legality of the program  that there Were:
?operational issues?" as well". Cane'y told us. that his-initial reactim to the
program was. ?unprintabl?e.? I-le  he thought that rthe'NSA Could not
collect the content of certain cor?ni'nUnications covered by the program
outside of FI?SAauthority. Haydentold the (DIG that Corney raised no
Objections to him about the pregrarn Upon being'read? in. (U) I

Within the ?rst month. after being read in, Carney disCussed the 
program with. Ashcroft, Goldsmith, Philbin, and-other Department officials-
Wholiad been read in by this time, including James Baker, Coulisel for
Intelligence Policy; Chuck Rosenberg, Comey?s Chiefr-?ofSta?, andD?aniel
LeVin, Counsel to the Attorney General. 135 Cemey said he did not recall
having any diacu'ssions about the program with FBI Director Mueller during
this period. (U)

Corney 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)

Conley also told us that Goldsmith had identified for Ceme?y as a
particular concern the notion that Yoo?s legal analysis entailed ignoring 

 

'36 Levin had just returned to the Department after working in private practiee and
serving as a Bush Administration liaison to the September ll Commission. Rosenberg Was
read into Stellar Wind in, 2003 while serving as Counsel to?FBl Director Mueller. (U)

 

 

 

act. QiQoasreslsv and doing} so in. Secret! __Comey ast'a?ted that-Goldsmith
described :?Such: aetion as. ?breathtaking;l?" Conley-agreed, describing the
aetionas ?u?precede?nted.? 

xn, niece oftcgal counsel Presents its canclusians the
White House (U)

on March 1, 2.004, Philbincompletedaa 
Opinid?onthe-SEMI; Wind program" Amortiinsio. at
time- Goidsmi?l 
there Wasrt?enyithing Ger Iinli Wren?" with-ma my 
0f the scape  

    
 

 

 explaining the rationale for the revised- ?descr'ibEdto
thefOIG hisi'view of'two approaches .or' standards that could be 11de
undertake legal analysis Of ?governmerit_ra'ction. {If-the. government is 
contemplating taking! a 

one ?be-st'view. of i laW? standard. HoWever, is
taking-the action, the, analysis should instead focus on Whether reasonable
legal segments can. bexmacle to:supportthe?conti?iiatiorl of?h??CQ??duCt?W?
Comey said that because Stellar Wind was-an ongoing program; Geldsmith
and Phil'bin?s analysis proceeded. under the secondapproaeh; Under ?this
approa ey-conCludfed were Son 1e"

   

     

 

 

 

137 Goldsmith emphasized to us that this second situation never presents
itself, and that rarely is asked to furnish legal advice on an ongoingpregram because
the. pressure ?tosay ?yes? to the President? invariably would result in applying a lower
sta?dard 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? 

 

 

hind   tha'd'ifound 313155131 7
- Wind program; ertiCL?aIIy?With the.
Awarding?tear?I?gxMue?Efkept do . . .. a 2004:

program; Carney said  w, a .. ctr-sting to  eutafhkese

Mueller told us:
that  1., 0.04;, was When hes?r?st  of'the 
eonee-rnsiaabout the'flegal s?ujj'port for ?theprog'rami Mueller desCribedithe; 
FBI :ai'szi?reoipients  .mrormatio? from the program,? and  that. the-dialogue-
sut'o the programis;?1egalitywas betweenthe. Department and the?Wh-i-te?
-. . 

?on Maren 1,200.4, Gamay met With

  
 
     

- exiting extentsam' Mamh

      

March 2004: Gomey=Meets-w-ith Ashcroft to
"Discuss Problems With the ere-gram (U)

jCorney toldus he. met with Attorney "General Ashcroft for lunch on
March ft; 20041,. to. discuss the Stellar Wind program- Conley-reminded
ofthe 'details.eof?the program arid s-aidhe used salt-Sand pepper-
represent the three baskets  
According. to Conley, Ashcroft agreed. with C'jomey "and QLo?s-asse semen't 20f?
 .pqtep-ti-al legal emblem-steed t?~??just fix it? and"
to  thechanges? that need to be" done.?

 

. Carney Said he, assumed Ashcroft'rneant that Conley shouldrieach- out
to: the NSA-v'andthez-White HoUse: for the- neceSSary changes. The
Presidential anthori'zatimin effect at the: time was due Ito-.eXpire on
Mart-:11 1 1,2004; G'Qmey Said. Ashcroft did net discuss With him. Whether-he
 resettifythe program as it was currently-being: authoriZed lay-the
President.  

Conley also described Ashcroft as. being frustrated, and Said he: was
"fbeating,hirnSE-1f up? because he was ?in a box? with Yoo, yet was learning
from Philbin, Goldsmith, and now Conley that parts of the program were not

in their View. legally 

After the lunch meeting on March 4 C-omey 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:

 

?53 Mnelle?r? told'us he maintained the program log beCause 
extraordinary .circumstanees about which I would .one day be questioned.? Mueller said the
program 1'ogwas drafted ?relatively centemporaneous'ly? with the events described in it. (U)

T339 By the; time Ashcroft received OLC?spreIiminaryfindings concerning, the legality
of the-pregr?am in December: 2003, 'he had already certified the program as? to form and

legality approximately 20 times. 

 

 

 

George: W?ishi?gton UniVerSitY Hospital; that: 

was hospitalized, Conley. returned to Washington. then'extmorning entail-
FBEI j?eiti. (U)

2. Maire-ha 120.04: o'omeyneterminesAsher-urns
?Absent orinisablled.? 

On. March 53,2004? GoldsmithadvisedIComey bytmernorandum that
under the circumstances .of?Ashcrof?t?s medical condition and
hospitalization; a ?clear basis"? can-Staci fOrCOmey to determine  
ease of absence .oridisability? Dime-Attorney: General? Within the meaninglaof
1?1 Thiis?wst-atu-te provides:

In case of a?vacancy in the loffi?C-e of Attorney General, or of his
absence or diSabiliity, the, Deputy AttorneyrGeneral-may exereise
all the duties of that office; and for purposes O?fsection 3345'- of?
title the Deputy .Attorn?y Genera-1 is. the ?rst assistant: to the
Attorney General. (U)

-Goldsmith."s memorandum further advised Comey'thatihe could'serve
aquoting-Attorney General un?les-hero?ft?s absence-hr disability no, longer
existed, and that Conley could eker?ciSe ?all the poWer and authority of the
Attorney General, unleS?s suChpower orauthorityi is required bylaw to ?be
exercised. by the Attorney General personally.? See28 
Goldsmith noted in the memorandum that there are": ?very few duties?" "that
can be eXe-rcised only bythe Attorney General} Goldsmith wrote that,
except?for these duties, Comey? could Opt. to eXerciSe the duties of the.
Attorney General as Deputy Attorney General-rather than as Acting Attorney
General, noting, "Your office has informed us that this iisllyou?r 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 C'omey indicated that a copy of the memorandum was also

 

14? According to an e-mail sent on March 5, 2004, at 9:15 a.m. from OLC Special
Counsel Daniel. to OLC Principal Deputy Assistant Attorney General Edward-
Whelan and other'Department officialsP among the. duties that can ?only beexercised by the
Attorney. General or his designee is the authority to approve PISA applications to engage in
electronic surireillance of- a speci?c type of agent Of a foreign power based on re?qLIest-s' of
certain'?high level officials. 50 U.S.C. 1804(e)(2)(A). This section reprESents an eXception
to =FISA3s;rgen'eral conferral of authority on the Attorney General, a term- that is defined to
include the. Acting Attorney. General and the Deputy Attorney General. See 50 

1i801-(gl. (U1

 

 

 to: Counsel- AS difsic'L'TSSEd ?bf-310W; a significant
dispute between WhitePHouse and Department-offiCials. later 'aroselover
  House is fact received .noticeo?f Gamay-s to;
assume the: powers of? the Attorney "General, whe?ther'as. Deputy Attorney
Generalist othemfise; 

 March 200:4: Goldsmith tanlehilhini-Sielek
Clarification from White House on. Presidential:
Authorizations 

?.Onsthe.aftern00n of Friday,  S, 2004? - 6-days before ?the
Presidential Authorizatim then in offset was. set-to eigpi?re Goldsmith 
Philbin-met withAddin-gton-  Gonzales at thehite House to-?Seels: 
clarification on two key issues related to: the Authorizations. 

    
 
 

  
 

  

.. 11?  .
brie??g the President on this new legal approaeh?. tojjustifyingi' the pmgram:

It

   
  

 

 

141 A March 12,. 2004, e-zmail 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 Ashcroftis
duties shows that Ayres confirmed the White House?s receipt of a facsimile from OLC
advising?the White House of Corney?s decision to exercise ?all the. power and authority of the
.. . in [his] oapa?ei-ty 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 small that herperson?a?y calledi-Harriet'Miets, a'White
House Deputy Chief 'of Staff, and informed her that Comey ?had assumed the Attorney
General?s? Ayres wrotein 'therevmail thathe also informed othErs atthe
White House of Corney?s status, including another White House Deputy Chief of'Staff '[Joe

Height] and the-White HouSe Cabinet Secretary. [Brian Montgomery}. 

 

 

 

 

 

   ith  on 't is point. was that CongreSs had spoken on
 matter by enacting FISA, but Yoo previously had opined that FISA was
unconstitutional to the; extent it infringed on the President?s

authority to conduct electronic surveillance without a

judicial memes 

Gonzales "also told us that the March 5, 2004, meeting with Goldsmith
  represented the-first substantively detailed discussion he had
 the OLC Officials regarding their concerns with the existing legal
analysis  their reserV?ations about continuing the program as it had been
operating. As?noted above, Goldsmith said that he had informed Gonzales
 Ad'dingtonabout his general concerns with Yoo?s legal analysis of the
p'mgrain- as early as December 2003. 

Later that day on March 5, Gonzales called Goldsmith to request a
letter from the Yoo?s prior OLC opinions ?covered the
program.? Philbin told the OIG that Gonzales was not requesting a new

 

 

had oohol'u?d?d that itW?as?.

opinion that the program itself ?wasfl'ega?l', but only that. the prior opinions

  

4-. Match. 61:0 2,904: The D'opar-tment Conchist That.
qu?5 Legal? Memoranda 1Dii1N'otsz'm 

As a?result of G0nzaeles?s requesto1'1Marc'h reexamined

Yoo?sa-memomnda Withua View Whether they adequately
described. the: actual collection activities-of the  under. the

.Atithorizations. Goldsmith. told, usst?hat after a briefreviem he calledVPhiI-bin

 he? agreed. With Ph?bih?s: assessment  YoQ?sl Were
probl?matio from a factual-standpoint. Philb'in said this

  
     

.Gg1d?smi?1939accountafthe response to-Gonlales?mequssrwas
Similar: Goldsmith allSO stated ?that-his and lawn and Stan hat :Yo?o
memoranda failedth adequately d'o'sori'bemths 
 that. .oLo .cOuld not-tell  White- HouSeithat-?the 'pro?gra?m could

\l

   

 

 

continua under the. authority ofthose legal memoranda. stated

that he..and Philb'i? realized at this point that the program had been

conducted ?fOr 2 yeafsWithout a properOLC revisw. Specifically, both

Goldsmithand Philbin stated that they had always logal
anaIYSis aspoorly reaso.ned;zhowotTer, they Were: now realizing that Yoo?s
fa'otUal description of the. program was inaccurate and inCOmplete as well,
and thus did not ?cover? a5peots of the program. Goldsmith said Gonzales?s
request for ratification of Yoo?s memoranda ?forced [the Office of Legal

 

Heeordi?g Goldsmith chronology these; seems}; Addi?gtea 

 

 

and was the paint at  the ?presumption in favor 'oldsmith also told Come};  White H?Ou?sie?vvould
is development.-  agreed With this

 
 

recommendation. :7

6., Goldsmith Went tojtheWhite-Houseto

Late March

stir  - i.

 

  
   

Gonzales-?maimed calmly and said-"they wouldget has}; us.? Goldsmith
told; us that?the White "was new worried: that. it was. ?:?outthe?ref
 that itlwas. implementing a 5 program Without legal support.

2011 Sunday afternoon, March  'Philbin met
again 'Withx-Addington and G'onZalesat the  Houselli?i5 A-jceording- to
Geldsmi?th, theiWhite House o'f?ci?als?informed Goldsmith and Phi-lbi?n that
they disagreed with Goldsmith and iPhilbi?n?sinterpretation of Yoozis
memorandaand on the need its-Change the. scope: of the collection-.145
Gonzales-told us he. recalled the meetings; of MarCh 6 and 7, 2004,. but did
not recall the Specifics of the diisous'sions. Hesdid he remembered that the
over-all tenor-of the meetings With Geldsmithwas one of to: ?find away

erwardg?izii'r 

 

144 As noted in Chapter Three, Gonzales toldzuzs that lie-believed 
described as lawful actiVities that were broader than those carried under Stellar-Wind,
and that therefore these opinions ?covered? the Stellar. Wind "program. 

145 Gonzales told us that White House Chief of Staff "Cardrnay also have been
present for this meeting. Goldsmith?s chronology indicates that only Addington and
Gonzales Were present. (U)

145 In discussing these earl}.r March meetings with the OIG, 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: fer 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 

1?17 As noted above, Gonzales Was represented by co'unsel during his interview with
the DIG. Also present during? the interview because of the issnenof executive privilege was-a
Special Counsel to the. President, Emmitt Flood. We asked Gonzales Whether the President
had been infermed by this point in time of the OLC pesition regarding the lack of legal

(Cont?dJ

 

   

 

. of  Marcher, 120.045; Goldsmith LanjdaPh?-binmet,
 Conley in.  offi'eeztog again: review Yonder opiniio r13; andimake ?Sure
     

 Win-d program as 'it- iPhilbi?ni-Said fhait 
:Gonzales?is.   request for-a letter    stating-- that. Yooz?e prior
OLC - thereto-gram? he and!  intended! to
reborntnehd that the: program 7?be:rece1iti??ied- 4 

"minus to on: the. new inton-
 

  

Aeoo-rd-ing to Was no "interaction 
the   the ism-1?6 on the.ifOllbWingcday, Monday, Mater: 2004..
 wrote in his chronology of events :1 for this day: ?Monday
 8-: Silence.? (U) 

March 20% White Hansen Seeiksltovl?ersuads?
heparin-reamed. Farm -~support Continuation of the:
Program 

 Tuesday, March 9-, 2004.,Gonzales: called  to attend an
early learning aor White Home. to discuss-
theITiSSHeSE-regardirrngools mealtime-deem?meagreilar Wind  174.9
Goldismith-eell?ed. Philbin and told him to meet Goldsmith at the White:
House; Awarding to  'Bhilbirn. were. allowed into- 
but Gonzales excluded, Ph?bi?n from theivaeti=ngdespite Goldsmith-e

requeetsv that Philbin be alIoWedl 

 

 

 

 
  
   

support for the program and i .  Flood
obje'e'ted to the-questiOn on re - hr - a
Gonzales did not proVi?de us an answer. However, 'wh I a draft of
this report, he stated that he would. not have brought Goldsmith and Philbin?s 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, Eris-period. Gonzales stated he
generally would only bring matters to the President?s attention if the President could make

   

1'49 Genzale's told the. that. he did not redall :thrs' 1neet11r1g.~ Both Goldsmith and
Ph-iIbi'Ii told the Oileabout "the meeting; The meeting is.also brie?y dESCribed in
G?ldSmith?s contemporaneous notes and chronology. (U)

 

 

 

Goldsmith said Gonzales triedi??rst' teapersuadbh?im??at he?
P??binwere memaranda did not provide 
sufficient covc'rthe 13. arts of  'ithaf-OL-CI had:

identified-as problem-sing; did.th SpeISHade? on: this
peat;   enemies;
 1  200% authorization. Gonzales reasoned thatAShe-?thi who was
?was notin:anyCandi-timid sign-  upcomih-gi 
authorization, antletliat  ?30?day bridge?  move: the situation to 
point.  AShoroft Would:befwell?enough ?ito approxie  
Goldsmithvtol?d ?Gonzalie-she-?oould not agree; torreoo-mmendan extension

 

Goldsmith-said. Gonzales noted that Ashcroft had certi?ed the
 as'to "legality for "the prev'ioua lfWOJal?ld ga,  Yet
'imw Comey?Wa?s the Acting-Attorney General. Goldsmith svaijel? the
impliCatibn-of Gonzales?s statement-Was 1.1:hatnot approving-the March .1 1,
2004,, Authorization Ashcroft; 
 1:02?Gonzales- that AshcrOft was: ?fsupperitiVe? of his and Philbign?sv' 

      
he did. not: ?want to face? Ashcroft in - GOldsmith
told? new-recommended to '-'Gonza1es: that he: not visit: 

 

said his discussion with Gonzales. let'sted about hour.
?P'h??'bin was then brwg?ht into. Gonzalese office and:  issues Were
discuSSedsagainu According-gm GjoldSmeil?hisohronol?ng,? nothing Was.
?res'olve'd during the meeting. (11)

At noon 'thatday, another meetingIWas- held in Andrew-Card?s of?ce at
 House. A?ceording?to Director log, Mueller,
Chief?xoif Sta-ff Card, Vice President Cheney, CIA 'Deputy-Directer John
McLaughlin, Hayden, Gonzales, and. other unSpeC-i?fiedofficials were present.
GQ?mey, Goldsmith, andiPhi-lbin were-notinv?lted to this meeting, Mueller
described this gathering as a ?pres-meeting? in- tentioi?pation? of another
meeting that was to be held later that afternoon in which. the. Justice
Department officials (Convey, Goldsmith, and Philbin) would be
participating.151 (U)

 

15? At noon on March 2004, AShoroft underwent surgery. at the
George Washington UniVErsity Hospital. The surgery was completed by 2:30 [3.111. (U)

Mueller prepared: for this meeting by meetin?g?earlierlthat morning with Michael
Fedarcyk', the Chief of the Cemmunications. Exploitation SectiOn; General Counsel
Valerie Caproni; and. possibly  program logindicates that Fedarcyk
?appears-unaware ofldetails-of it 

 
   
 

i



E.


t-i-

n.

 

 

ACO.

I rding to Mueller?s notes, a. presentation Ora-the value of the Stellar
Wind? 

     
   
 

    

d; lethal-group: that Comer ?has-problems?  
Mueller?s notes State that Vice President?Cheney- suggested:
 ent may have to reauthoriz'e without?[theliblessing Of". 130.31,"
ieh-Mw?er responded, could hams a problem: with thatf?and that
legality or continued participation in. the

 FBI Would: ?have. regrev'iew

   
      

A

 

Programs? .. . -- 
A third meetinswas held. at the White: House "that afternoon, alt-4:00
 The-meeting included Cemey, Goldsmith, and in addition to,
Vice President Cheney?, Car-d, Addington, Gonzales, Hayden, Mueller, CIA
Genera-1 Counsel Muller, McLaughlin, and appmximately '1 0? NSA 
G'enzales told us, the meeting was held to make stire. that Corney understood
what'Was at stake with the. program andto demonstrateits value. 

At the? beginnin?giof the meeting the ?made a presentatien.
Phil  resentatien consisted
shaming 'ap'abilities thatcould
be generated from Stellar Wind-?derived. information, as well as a deSCription
resulting from the program. Come-y- t01d us, that the
eases the. highlighted?fWere notin? his View the Stellar Wind
successes that the claimed?, and that he felt "?the?NSA had no good
storiesttottell about the pro.gram.?153  also told us- that themllee'tion
df,,c0ntentcommunications under" Sterllar Wind was somewhat duplicatiVeof
wasting .cOVerage, and that only the meta data causation under baskets
'2 ands repreSen-Ed'truly newcapabi'lities, However, Conley said he'di not
challenge the on the assertion that Stellar Wind wasta Critical
antint?e-rrorism tool because the Value of the program Was not his primary
cOncerri, Rather, Coqu said he, was willing-to thoneede the program?s value,

 
   

  

 

and that his concern was with its legality.

Gold-smith told us that he did not believe it was his-place to judge the
value of the program from an intelligencewgathering 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

 
 
   
 
  

 

 
 

?53 Mueller?s notes indicate that were cited 33 191 I 133 135:

uring the presentation. We - .3 his Chapter and b7E, b7C

case was a legitimate b1 b3, b6,
3- well as other cases b7E b7c

 

 

 

 

 

 m-diys?tswere excused after? their preSentation' and the
meeting 'Gomey said?ViceIPreside-nt Cheney stressed that the
 ?critically important?  warned that C'omey would. risk
?thousandS? bfiiVGS? if Conley did not agreeto it. Conley 'siaiclnhe?

. 

the Deputy Attorney Gene exerolsi

    
 
 
 
  

 those at meeting that he; a

     

    

modzi?ea?gn?. 
- I 7  
Ashcrofesnsieald gdu??ngathismee?3:;7 . 

 

 
   
 

   

Gonzales told us the-.06 awa- fI-?Dm-thi; 13  
.. r. F. at?Come.  -. 



     

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

 

 

emphasized the series. of pressure. and anxiety that pervaded?th?e?
discus-eionsin March 2004?. For instance, Corneyssaid discussions during.
 meeting at the White House. on: March heated as he Sought to
convey-"to everyone how difficult; it was for the Department to? take? the
position  was taking, and thow'hard th'e?Departn?lent 
totinda' solution. ?Comey'al'so stated. that Vic-e was 
?understandably because the- Department washchangiing: its
advice: to the White House about the program.- (U)

Goldsmith also reCalzledthat at one point during these me?e?ngs with
the Addington told him that ifhe-nartovved'the Stellar Wind I
program Goldsmith ?win have the bloodof 100,000 American lives on- his


'GQl?dSIn-ith observed to use that: from of View,
due to the timing of the siren-ts; and: in particular with Ashcroft in the,
hospital, it appeared to the?Whiite House that. a ?palace. c-Qup? was taking-
pla'ce at the Department Gold-smith said that tl'tisperception was

somewhat understandable: under the circumstances, 

Philb?in stated that tensions were: high during thisperiod and that
the Department and White House ?started to- divide. into. camps.? Philbin
added. that Departmentand ?starting to attribute
motives? to each other; Philbir'ilsaijdhe thought-AddingtOn came to believe.
that Comey?was opposed to recertiifying? the .prOgram for ?political reasons?"
and that Conley wanted to'be on the; ?politically right? side 


Corney said that his dealings with GonZales, Card, Addington, and
others at the White House were generally civil. Corney acknowledged that
there wastension between the De-partrnentand the White House during the
MarCh 2004 period, but believed that it resulted? primarily from differences
in legal perspectives. (U)

H. 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 Attomey General Conley 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

 

 

 

Departments: Support: a Serious iceefrO-?Iltation between: White.
i 7- -- 
 White House Counsel "Gonzales-icertifiesMarch 11; 20504",-
Pfesident-ial Authorizations 

1.- March 19323004: Office:ofLegat?Couns?el Presses-for-
iSelicitor General-to be Read into Program (U)

 Philbin, and Come-y 'met in the early afternoon?s-i 
March-10, 2004;, to dismiss? the: meeting?.at the White House ?tltie day before.

and new the Department Should G01d5?1'ith  
reccmfirgmed their "osition te:_ 

  

   
     
   

   

Goldsmith Philbin also recommended to Co?mey that Solicitor
General Th'eoder?ie Olson be read into the program. told us that
Olsonhjad been at the Department-for a long- time and had valuable
experienceyandi Credibility. Goldsmith said. that given the importance-of the
denisiens heingrnade at the: Department concerning the programat this
time, he believed it'Was imperatiVe to have Olson read in. (U) i

7 Ce?me?y agreed with Goldsmith and Philbin,  he directed Goldsmith
to call-Gonzales: to?t'eaffufin the Departments position on the pregr?am and:
elec- to request that Olson be read in. (U)

 
     

I Goldsmithelso tol onz-ales of for approval to read Olson.
intof the-program. Goldsmiths notes indicate that he: called Gonzales twice
that day with the request to have Olsen read in, but by early evening had
net-heard back from Gonzales?  7 4? i 

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 officials,
including Vice President Cheney, Card, Hayden, McLaughlin, and Director
of Central Intelligence-George enct, convened an ?emergency meeting? with
Congreissional leaders in the White House Situation Room. The

 

 

congressional?leaders  ettie?dance'trere {Sen-ate Maiority and; Minortor'
?LeadersBiizll Pris: and  Eas ;,:S,enate Select- Committee  Intelligence:
 Pat Robertson-tr Vice    ofthje
House: -,Dennis Haste-rt and: House Minerity Leader-  Holden and 
 Select  0n:- flnt'ellis?nc?- Ch?aiir R?a?kingl
Member"  This 'oongreissiOnal group was known. i1?ormally as
the  of Eight?" 

ot'of?oi?als from therDEpartm-ent were pre?sientiat the When.
we asked Gonzales Whether; the White'- HOUSE had given:  consideration: to
 o'ffieidl-s to. attend?J Gonzales, declined 
adViee of the'Spteeial Counsel to thePr'e-sident, who wasz?resent during
oo'nzaJeS?s interview with the DIG-.155 (U) 

{Gonzales told us that President Bushialsosdireotedt  to.
?memoria?zet the meeting, although Gonzales is?aid he could not recall.
whether the President directed him to do so before ore-after thermeeting,
Genzales-did not take notes Rather, ~he.:said. heWrote
reeQIl-eotion of- the-Imeetingawithin sarjfewdayslof?Wedn-ezsdayj 
probably, aeeording to him", the followings?We?ke?dfil'??' 
 with? the. exception eta-single: phrase discussed- below;  wrote
his ?notes linens sitting in his White House of?ce. (Us)

The: notes hidi-cate that President Bush appeared brji'e?yat?the Startof
the meeting-Ate explain how important the meetii?g was; Vice-Pmsidmt
 Wh?"?3haired ?th? MEWS: agave a'senerel explanation ofthe pros-ram-
and. indicated that the purpose of the meetingwas'to?disgusgpoten?al 
the program.? :AeCording? to-eoezaeseaenotes, Hayden
thel?l Explained th ., .,

 

  
  

     

 

?55 I-IoWever, when Gonzalescomrnented on a: draft of this report, he :statedtha't the
Department was not invited the meeting because the. purposeofthte mee??g Waste
advise the congressional leaders that a legislative ?x was net to deSeribe or
resolve the legal dispute between the Department and the White House.  

156 Gonzales?s handling of his notes from this meeting later became the subject of-a
separate 01G misconduct in-Vesti'gation. The 01G found that when Gonzales became the
Attorney General in 2005, he took the notes, which contained?TS/S?CI information relating
to the. Stellar Wind program, from ?the'White House and imprOp'erly stored these notes at
his residence for an indeterminate period; When he brought the notes to the-Justice
Department, he kept them in a sale near his of?ce that was not Cleared for. storage of
TEX-SCI material. The OIG also determined through this investigation that Gonzales
improperly stored Several other SCI documents in the sale near hisoffice, manyoff
whileh concerned Stellar Wind? The repert, entitled ?Report of Investigation Regarding
Allegations of Mishandling of Classified Documents by Attorney'General Alberto Gonzales,?
was released by the OIG- on September 2008, and-can be found at
http:/ /?wsw.usdoj .gov/ oig special 30809 /index.h-tm. 

 

 

Could cominua i 

 

  
 

  

 

  
   

   

  

 

    
  . . gas the the
needfer leaiSIaeqn so   ae- actiVi't'i?eS.

 

Gonzales-Enotes imitate that wheeliewasi;as'ked at the 
Comevwasv ?relacitiant? to Sign the-Authorizatibn, Gonzales responded,- 

said it not '-rea11y? my place to I believed
 lie-did: not feel that-the Pres?ident?'s iC?onStitutional authori'qr'wouldj not

[sis] over-ride The: notes .do not indicate what :2else 'Wasi-dis?oussed
about the basis for theDepartm?enth Concerns about the-legal support for

the program. 

The notes indicate: that Andrew Card stated that??t Would be; hard to
 if'anjother WeteouldlhavC stoppediit with this
tool? notes their state:

4 Andy asked if "anyone had any T-esewa?on?and 5110 one Spoke: up
raising an objection

 The VP Said that What-I am hearing' is, that  should, go  With
theprogram fer a petiod of 3045 days andsee?if there a

legislatiVe 

   

The notesind-ieate that Vice aloud? proposed
language of new legislation. HoWever,? the notes-do not -'deseribe the
proposedlegislation that was? discussed. 
According-to Gonzales?s notes, the reactions and comments of the
gangressional leaders were as follows: Both Haste-rt  Roberta?eaid they
11 lt-an obligation to uSe the 1 euhxaceordintorthe   

  Rob ts Said that'ifComey'wo dnot certify
the Authorization he ou be fired.? 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 PISA Court
?approve or .deve10p- the guidelines to-protect privacy rights.? The-notes
state that D'asehl'e 'felt it would be "impossible to get [new legislatiOu] passed

    

  
    

    

 

  
   

1?57 Gonzales teld 

Without it'becor??ing Very Rockefeller was ?comer-Iiedabout privacy
safe'guards?rand was adv-ise'd ofl?the339 steps followed  the to. make
sure. piri?Vac?y concems?wsrc addressed?? According to 
giving?total-discretion? to the?_Preside11t and
discussed. the: need-for legislation to" 'b  _perfiodise113ifrenewed?by

E'Qh'sf?ssi'rand ?that-it not be} Permanent 

Gonzales. told-g usjhe initially left a gap in one section of the notes
where-he described Peil'orsig?s comments. 'Hecstated thatagday orso later,
after recalling. what, she-shad said ?atsthe meeting, he filled inthe-gap the-
folloWing-i-taliciized language: ?Pelosi said tell DA-Gath?dt-eveiyone is 
-?omfoita'ble- and the? program should (U)

3. March 1-0, 2004: Hospital Visit (U)

Gonzales: told us: thattollowingthe meeting with the congressional
leaders during  afternoon of March 10?, President Bush 
 Card to; go? to:  George Washington. University HOSpital-Ito speak to-
A'shor-oft, ivasurecovering from-Surgery in the,'intenSive eardunit. The:
events that-?follonked; Whit-.191 are rBCOLl??thibiBlOW, are based on notesfrom
Assesses FBI.  and Mueller?s? pro-gram log;
the. interviews ofrzGonzaiea? Comey?, Goldsmith, Ph-ilb?ign, 
 Conley and testimonyl-?Sg (1-1)

At 6:20 p.111. on March 10,. Car-d called the hospital?andi spoke With an
"agent seeming-detail, advising the agent-that President 
Bush Would be calling shortly ?to: speak with Ashcroft. told.

 

I 153 When before the 'Senate?Judieiary Committee-on July 24?,
2007,13,:3 essE?tially described thecongressional leaders? reactions tothe Marsh 10,2004,
Gang of'Eig-ht? briefing ashe did iinhishandwifitten notes of the brie?ng; stating, ?The

consensus in the room-from the: congressional leadership isthat We should continue the
.aetiVitie-s, at least for now.? However, after Gonzales testified, Representative Pelosi,?
senator-Reckefeller, and Senator Dasc'hle issued statements to= the. media- sharply disputing
Gonzale's?s 'CharaCtei?ization of their st?atements'at the March 10, 2004, briefing, 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,- 200.7). 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,
Eleomb?erg..c0n1 (July 24, 2007). We did not attempt to interview theeon?gressional leaders
and. obtain their recollections as to what was Said at this meeting, because this was beyond
the scope of Our review. (U)

1-59 Gomey described the events surrounding the?hOspital Visit in test-irrime before
the-Senate Judiciary Committee on May 15, 2007. Gonzales testified about these issues
before the. Senate-J udieiary' Committee on Jilly 24-, 2007. As noted above, Attorney General
Ashcroft and Card declined our request to be interviewed. Ayres, Ashero??s Chief of Staff at
the time, also declined our request for an interview. (U)

 

 

the?agen-t' that Ashcroft-would not? accept "the call. Tendninuteslaterf, the
 called?hshero'ft?s Chie?f?of' Staff?David Ayres throngh the'zJustiCe
Gard abOuit the
Presidentis intention to The agent conveyed to Ayres Mrs.
Ashoro?ft?s?d?esirethat I10. calls bel'made' for-another day or Lavoil?b
Ayres told-the agent he would relay-this message to Card; 

However, at 6:45 p.111? Card  "the. Presidentcalled?the 'hOSpital
and, aceordingfto the o-n speaking  Attorney?
General AShcroft].? According to ?the-agentis netes, Mrs. Ashcroft, rather
than-Attorney General Ashcroft, took the call'frorn Card and thePresident
According: to the agent?s notes, she-was informed that Gonzales and Card
were Corning to the hospital-to see Ashcroft regarding a matter involving
national security. {70)

At approximately  Ayrest wasradvised, either by Mrs,
Ashoroit'or'a member- of the-Attorney?C-?reneral?s security detail that Gonzales
on their Way to the hospital. Ayres then cal-led Cor-hey, who
at-the time-was being driVen? thorns  his. security-detail, :and' told. Conley
that Gonzales and Card Were on their way to the *hOSpital. Conley told his
'driVer to. rush  to the hospital. Acc0rdin'g; 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 peopletas
possible to. the hospital :irnrnediately.? ?Corney then called. FBI Director
Mueller, who Was having dinner withhis- Wi'fezan?d daughter at arestaurant,
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
tessxm?ake a: decision about Whether to continUe the program, According to
Mueller?s pregram log, Conley asked Mueller to Come to the ho Spltal to
?WitnesS? {the} condition of Mueller told Conley he would go to the
hospital right aWay. (U)

At 7:05 p.n1., Ayres was notified by an agent on Ashc?roft?s security
detail that Corney 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 US. Secret Service agents who

 

16? 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)

 

 

Wouldbe accompanying Gonzales "and Card to-remove Conley from 
agent told Ayres? thatit?he Attorney -'General?s
SECUF-i?tyideia? Would ?fully'baCk? Carney and that.?thiSis Fem scene?.? 

. Phil-bin saidhe was leavingwork ?thatrevenirigwhen he'rcce?ived a call
frm? (Denney, who saidthat Philbin needed to get .to-"the hospital right away
because- Gonzales: and?C?arid' We're ?On their way there ?to-get Ashcroft to sign
Something.? Cor-hey also directed  to call-Goldsmith and tell him
what was: happening atzth'e hospital. Philbin called Goldsmith from .a taxi
onhis-way to "thefhospital- GoldsInith told us he, was home? having dinner
when he received Philbints call telling him. to .g'oimmediatelyi-to the hospital.
(U)

Come-y arrived at the hospital between 7:10 and 71:30 pl.In'.1.51 In his
congressional testimony, Comey said heran'u-p the stairs with his Security
detail to Ashe-rafts ?oor, and .he'enteredsAshcrof?s room, which he
describedtas darkened; With-Ashcroft lying-in bed and his Wife-'standi-ng-by
the bed. C?omey Said. he began Speakingpto Ashcroft, ?trying- to Orient  as
to time-and?placeCould'focus on What Was happenmg.?
C'Orneyl'Said it wasnot clear that Ashcroft could focus and that he ?seemed
pretqr' bad Comey stepped out of ?the room; into-the hallway and
telephOned Mueller, who Was 0n hijsway to-th-ehosital. With Mueller still
on the line, Comey- gave his phone-to an FBI agent 0n Ashcroftis Security
Comey Mueller instructed the agent not to allow
Carney to be-removed from Ashcrofth room ?under  cii?cumStances.? (U)

GOldSmith and. Ph?ilbign arrived at the, hospital Within a..few minutes-of
each other. C?om?ey, G?ols?r?n?ith,  Philbin' met briefly :in an FBI ?command
post? that had been Set up in a room adjacent to Ashcroft-?8 room. Moments
later, word Was received at the command post that Card and Gonzales had
arrived at the h'0spital 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~o-ff? 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 Generalfs security detail log on the time.
One agent wrote that Comey? arrived at 7: 10. Another agent wrote. that Comey arrived at
7:30. (U)

 

 

appeared to- have lost a lot of- was, ?gray in the. face-,3? and was ?almost
out of it? because- he was on morphine, 'Com?ey stated that Ashcroft. was
?clearly- medieated.? (U)

Carney testified that he sat in an armchair by the head of Ashcroft?s
bed,  Geld-smith and Philbin-s?ta?nding behind him; Mrs. Ashcroftts'tood

on therother side of the bed holding Asheer its arm. No. security er medical
perSonnel were'rpresent, 

Goldsmith?s notes indicate that at this point Conley and the others-
advi?sed' to sign anything.? (UL)

GonZales and'C'ard, unaccompanied by Secret Serviee agent's, entered
Ashcroft?s hospital mom at pti?n? according-to the FBI agents 
The two stood across froin. Mrs. Ashcroft-at the head of the bed, with Conley,
Goldsmith,- and Philbin behind them. (U)

Gonzales stated that when .he- enteredvthe' {ho spital, room, Ashcroft was
inthe bed and his-wife was ?at the 11:00, position.? Genzalesrsaid to us that
he Was-unaware that Conley, Goldsmith, and Philbin were also present in
the room until Card- told? him this later. Gonzales. told us that he "Could
?f?sensje? that others were in the room, but that he was net sure who, becauSe
:?his focus was on Asheieft. Gonzales- said heacarriedizvx?rith himin a manila
thelOpe the, March 1 2004', Presidential AuthorizaetiOn for Ashcroft to
Sign. (U)

Aeo?ording to Philbin, Gonzales first asked Ashcroft howi he was
fee-ling. Ashcroft replied, ?Not well.? Gonzales then said Words to the effect,
?You know, there?s a rea-uthorization that has to be . . (U)

Goldsmith told the OIG that Gonzales next reminded Ashcroft that he
had been certifying the program for the past 2 years. Comey 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. Corney 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 officials had met with congressional leaders ?to
pursue a legislative fix.? (U)

Comey testified to the Senate Judiciary Committee about what
happened next: 

 

Gonzales told us he and Card arrived in Ashcroft's hospital room at 7:20. (U)

 

 

 g, Attorney General Ashcroft then stunned me;  lifted his
head and-in very strong-terms eXpressedghis View
ofthe-matter, rich  both substanCE?alid-faot, Which stunned
the, draWn from the Zhouitlon'g meeting We?d: had a week-earlier,
andiin'eew strongterms-expressed himself; and-then-ilaid?his
head back down-ion the-pillow; He seemed spent,  Andas
he Laid back down, heisaid, ?beeause
I?innot the Attorney General, There is the Attomey' Generalg?
and he {pointed to, I. was just to hislleft. The ?two men
[Gonzales and Card]. did not acknowledge me; '?ley'tUrned and
"watlied from the room. 

Conley also testified that thought 1 had?justWitnessed an effott to:
advantage of'a very sick man, who didnot have: the-powers of the
Attorney General because they had-been- tranSferr?edlto me.? 

Phil-bin described to us. Ashcroft-"s. Statements ?tO?Ganalesand Card? in.
the hospital that Asheroft ?ralliedandahel?d forth for-- two
about problems wit-lathe program as had. been eXplajnecl 
Conley, Ash-croft agreed with. EQmey, Gonzales told us that? he did.
not Stating -thathe=agxre.ed    notes
 ate that Ashcroft argued in :partiCU=1ar  ?aotivities-l
eXCeeided-?the scope of?.   i Ei ?s7 d- (3551:3633 ,moitanda, stating,
thathe was troubled Ac?eord 

 3is notes=..Asher the.  . 
peeple in other agencies? had been read into the program, but that
AShorOft? oWn: Chief of Staff, and until resently the?DBpu-tit Attorney
General, hadnot been allowed to beread-in. Gonzales, told Hells: responded
to Ashcroft that this. ?was the Pres?ident?s-depi?sibn. i 5 I

   

      
    

 

      

      

           

 

Aeoerdingi- to Gold-Smith?s also complained that the
had ?not returned hone calls,? andi?that the Department had
been ?treated badly and cut out of [the] Whale 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

 

As discussed in Chapter was present for the January 3 1., 2002-,
briefing at Presiding Judge of the FISA Court Royce Lamberthz-about the program.
According to'an outlineof information to be covered during that briefing, Director
ow the program functioned operationally. Because Ashcroft
are Were unable. to determineiwhatAshcroft understood,?
itcolleetion prior to Philbin and Geldsmith's explanatiOn to

him of thi 21313th of the program. in. late 2003. 

 
 

 

 

leadership 5 was that it should, continue, Gonzales-said he
therefore felt it Was: he toldwh'a-t Was:
happening, adding ?l?fl were then-Attorney General I WOuld damn-?sures want
'ztogkhjow.? (U) 

. Inhis July" 2007 =2congressi'onal testimony, Gonzales alsojexplained-the
visit to: "by Stating that rot-was 
General knew about the and'reo'omrnen'dationsofthe congressional-

leadership; that as 'a former; member-of Congress: and Wholrad
authorized, these activities for over two years, that might beir-?nportant fer
himfto-thear'this-mformation. That was the treanonsthat  Card andI'Went
tov?the hospital.? GO-?Zales further- testified, ?Werdidn?t know. whether or not
he of. Mr. Corney?s position and,  he did know, whether or not he
agreed with-it.? Gonzalesals?o disputed Goldsmithisascountathat Ashcroft

statedthat he was "not prepared?'to- signanythingf? and referred us tOIf-?hi?S

 25007 testimony- Whereahe stated: (U)

My reoclliee'tion, Senator [Feinsitein], Lis~ 
happened. some to
differ. My recollection is that Mt, Ashcroftgdid most ofxithe. I
taiki-n?g. At the end, my ?I?ve-been toldit-
would be imprOVident for me to sign. But that doesn?t matter,
becaUSe I?m no longer'the Attorney" Generati??  

Gonzales told us that he and Card would not have; gone" to the
hospital if they believed AShCI?Oft'did not havewthe authority to certify the
Authorization and told us that as soon as Ashcroft-statedhe 11 longer
retained authority to act, Gonzales decidedth lasik Ashcroft to sign the
Authorizatio1:1a In his congressional testimonyGo?nzales stated, "?Obvio?sly'
there was consernabouet Genera-1? Ashcroft?seondition . . . [W]e knew, of:
course, that he was-ill, that he?d had surgery"? Gonzalesalso statedthat
?We 'Would'not have sought nor did we intend to get any apprOVal-'frorri-
General Ashcroft if in fact he wasn?t fully competent to make that. decision 
He also testified, ?There?s no governing legal. principle that says that Mr.
Ashcroft . . . If he decided he felt better, could decide, ?l?m feeling better
and I can make this decision, and I?m going to make this decision,??164 (U)

I The Attorney General security detail?s logs indicate that Gonzales and
Card left Ashoroft?s room at 7:40 p.111. (U)

 

?54 Hearing before Senate Judiciary Gcmmittee, July 24, '2 007. Gonzales also told;
?vould not have gone to the hospital, solely over the d?isPute conc'erning the scope

 
 

 

 

Moments after Gonzales and Card departed, Mueller arrived at the
hospital. AccOrding to- outside. the? hospi'tallromn Corney
informed-mm of the eke-hangs that hadoceurtedsin room, and-in
particular that Ashcroft had stated that. Comeywas the Acting Attorney
General, matters? Were-to: be t-ElkEn. to Ciomey, but that Ashcroft
?S'uipported' Comes/ls position regarding-the program. Muelleris notes-else
state: ?The AG also tol {Gonzales 'and'Catd] that he "Was barredi'fro'm
he neededson. the program the strict
cempartmentalization rules of the [White Houjse].? 

Mu?eller?s notes indicate ?that'Comey asked Mueller to witness
Ashcroft-?scondition, and requestedzMueller to inform the FBI security detail
that no visitors, other than family, be allowed to see Ashcroft without
Muelle'r?s consent. Both Mueller-?3; notes and the security detail leg indicate.
that Mueller instructed the. detail thatunder no Circumstances wasganyone.
to be allowed into Ashcroft?s roOm without express approval from: either?Mrs.
Ashcroft or Mueller. (U)

At approximately 8:00 p.111. NIuell?er went into room fer 5 to-
lOrninutes. Mueller wrotein his program log: in chair;-is feeble,
barely?arti'culate, clearly streSSed.?' (U)

4. Mar-ch 10, 26-5004: olsoniis Read into the Program (U)

According to C.omey"s- congressional testimony, while he was speaking
with Mueller prior to Mueller?s departure from the hoSpitajl, an FBI agent
interrupted, stating'that Come-y had an urgent telephone call from Car-d.
"Co'mey testified that he then who was very'upset and
demanded that Corney come-to the-White House immediately. Comey
testified that he told Card that ?baSed on the CondI?Jct Comey had just
witnessed at the hospital, he would not meet with Card without a witness
present. Comey testified 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 testified 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 first. (U)

Conley and the other Department of?cials left the hospital at 8:10
p.111. 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 Ju?Stice Department after being contacted at a dinner party.

 

 

 

Cemey' told usthatshe?believcd there: Was emergent-need to have-Olson read
'inte because hewas confident fOlsonvwoul-d- agree With Conley
and the-others that Yoo?s. legal analysis; and th?atOlSonwould be
a strong ally in. the matter- because of Olson?s respected. intellect
credibility.  

During this. meeting at theJustiee?Department,a a call came from Vice
Pre?SidentCheney fer Olson, which Olson- took? On a "secure line inICom?ey?s
of?ce while Comey waited, outside. Corney told. us he believes Viee President
Cheney effectively read into the program during that conversation.



Conley and Olson then Went tothe White House at about 11:00 pare,
and met with Gonzales and Card that evening. Comey testified that. Card
Woulant'allow-TOlson te enter his office; Co?mey- relented  spoke to. Card
alone'for'a?bout At that-point, Gonzalessarrived and brought
Olson into the room. AccOrding? to Conley, he communicated the 
Department?s views enthe dispute and that the-dispute was not resolved in
this discussion. Corney stated that Card was concerned thathe- had heard
reperts. that there was to bee largenum'ber of resignations at the
Department. 

Gonzalesstold us that he recalled that Conley met ?rst with him and
card while: Olson waited outside'the of?ine, 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 ?le drafted by Goldsmith, he met
with Gonzales at 6:30 am. the next morning, March 1 l, 2004-, at the White
House to discuss a proposal under which the Department could support

 

165 Carney 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. Corney said Clement agreed with Goldsmith and Philbin?s analysis ?one hundred
percent".and later Worked with the OLD on drafting a new memorandum on the legality of
the program, whichis 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 onlyr on a limited review of it. 

 

 

 

Goldsmith told us that he?did not speCifica-lly recall this meeting.
Gonzales told us that he recalled Conveying to Goldsmith and Philbin at
'Sbmegp?i?t during-this day that the President had decided he had the
authority to continue the-program, Gonzales-saith also
expressed to Department officials the sentiment that the Department should
Continue. se'e'ldng a way to ?geteomertable? with "the'Presidenit?s decision.
(U5)

March 11,2004: White Hause Asserts that comers.
Status as Actingifiitterney General was Unclear (U)

Goldsmith told the OIJG that later during the morning of Marc-h 11,
a callfr?om Deputy White House Counsel. David Lei?teh.
Goldsmith said Leiteh Was ?yelling? and screaming? about the White House;
not being? informed that Comey Was the Acting Attorney?Gen'eral. Goldsmith
told the OIG that Leitch madet-wo speci?c complaints. First, L-eitch claimed
that the White House had never re?Ceived 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 confirmation sheet from the March 5, 2-004,
memorandum Goldsmith had sent to Gonzales entitled ?Determination that
Attorney General is absent or disabled.? This confirmation sheet
subsequently was Sent. to Leitc:h.156 

 

1?10 In. a March 12, 2-004, email to Ayres, Comey, Goldsmith, Philbin, and others
(including a copy to Leitch offered a ?Clarification,? asserting that the White
House had in fact received the Goldsmith memoranda of March 5, as well as the 



 

 

.?Leitoh?s second, claim-was that the CLO the-inor-andum Was ambiguous
because itdid notzspecify Whether the Attorney General Wee-determined to-
be ?absent?: or "-?disabledf? a difference for purposes of the Attorney Generalis
authority According to Goldsmith, if theAttOmcy' Goa-nsral?was' 
the Deputy?Attorney General- could act aesthe- Attorney General, although.
vthehttomey- General would retair'i his authority-and technically could

prerrule the Deputy. H?theAttorney ?Generalc'Was ?disabled,? ?the ?ttorney?

Generally-was. diVeste?d hora-11' authoriw. Goldsmith said he- responded. to
Leitohiby noting- th'esinconsiistency (if-the; White House second
claim becauSe, aocor?ding toz-Lei-tch, it had not received Goldsmith?s

in the first-instance. (U)

Goldsmith Said he- also told Leitch to ?lay-oft? the complaints, but ?that
Leitc'h did not. Goldsmith said he therefore reluctantly sent a detailed

.e??majl to Leitch on March ll to support the 'Devpartrnentis? contention that it
had properly informed the White House?of?Ashcroft-?sstatus. Goldsmith

?1

statedithat?in the e~ma?hexalsdmade the point that. his conversation with
Gonzales on March-9, was premised-on Gonzales?s

.khowledg'e that Ashcroft was ill and that?omey needed to authorize a

?SOaday bridge? until Ashcroft was well enough to  the Authorizations
age-inter (U)

Gonzales told us that he had no- reeolileotion of 
March 5, 2004, memorandum. entitled ?Determination that Attorney General
isahsen?t or disabled? As described?above; Gonzales- stated that he 
Cafd have gone to the hospital if they believe?diAshcroft did not
Chane the anther-hy- to certify the Authorization as to ferm- and legality.

Geneales also said. that. while he believed C?orn'ey?woum be making the
decision to recertify? the program, this did not mean that Ashcroft had
relinquished his authority or had been ?recu'sed? 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 so.153 

 

memorandum from Comey?s Chief of Staff Chuck Rosenberg memorializing Comey?s
decision that the Attorney General was ?absent or disabled? within the meaning of 28
508(a). Leitch?s clari?cation stated that the Rosen?berg?memoranduin had been in
draft form. (U)

The OIG searched for but was unable to find this eumail from Goldsmith to
Le?itch. (U)

?13 During his July 24, 52007, before the Senate Judiciary Committee,
however, Gonzales stated that he thought there had been newspaper accounts of Corney?s
assumption of the Attorney General?s duties and stated: that ?the fact-that Comey was

the acting Attorney General is: probably semething that I knew of.? Gonzales testified. that

he Was aware that Ashcroft was ill and had undergbneysurgery, but -.Gonza1es stated that
Ashcroft ?could always reclaim? his authority. (U)

 

 

     

7.. march 1-1; 2004: GonzaiesGertifiesPresidentiai 7
Authorization aster Form-anti?Legaliyty i 

 the merning of March 11-, 2004?, with thePresidential.
?Hqthorization set to expire, President Bush signed a 
In a departure from-the past 'Ipraotiee- of having: the. Attorney General certify
the-Authorization as-ito form and legality, the March 11 Aurthorization was
certi?edlhy White House Counsel?Gonzales, The March l1 authorization
aha-differed; markedly from prior Authorizations ina'three otherxrespeets;

 

The first significant difference. between the March 11,, 2004,
Freeidonatial Authorization and prior Authorizations was the President?s:
explieitgassertion that the exercise of his Article 
authority provisions of; law?, including the. Foreign Intelligence
surveillanee?et. and Chapter 119 of Title 18' of the United States Code
(ineluding 138 ?2511(f)? relatingxto eXelusive means), to the. extent?of
. any con?ictbetween . the proVisions and suehsexeroises under Article. 

 discussedabove, Omnibus Crime Control and Safe Sheet-s
Act @1968, 18 U.S.G.  2510~2521 referred to as Title. HI) are by
their. ?iexczlusivermeans by Which electronic as
definedin and the-interception of domestic: wire, oral, and 
seeinmUniCations-i may he conducted.? ?f251 1(2) This new
language-was based on the same-legal rationale Yoo first advancedin.
supportof the Stellar Wind program that FISA cannot be read to infringe
upon the President?s 'laut?hority? under Article II of the
Constitution during wartime. 5" -

     

subsequent. Presidential Authorizations did not include this language-
?diseussing the legal bases fer the program. Steven Brad-bury told the (BIG
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
Philbinisanalysis, and to protect these who. had been implementing the.
pregrarn under the prior OLC opinions. 

Second, to narrow the gap between the authority given on the face of
prior Authorizations and the actual operation of the program by the NSA,
the terms governing the collection of telephony and email meta data Were
Clari?ed, The underlying language for ?acquiring? both telephony and 
meta data remained as it had been, giving the NSA authority to:

 

?59 The March 11. 2004-, Presidential Authorization stated that it would exPir?e on

May 5, 2004. W)

 

 

:Seumw??f NUFURN

acquire;
ihcludi?n?gl.
not chtezilitss-Qf 
the :ccimmun?ic?a Liar-15 - wl-len (if) at parity: ?Lo . such
eo?mmu?icatib? is outsidethe  States, (it) no! partyin-
 is known to be; a .ci-?LZen -of the Unitecli'
States;  .(iizizy-baszed. on  factual consideratidns<
of    prudent perscm?ss-?e?tg
  Speci?c artifou-Iebleaf?mt?s giving reason- to believe
     
activities-in preparation therefor.  -   

-PresidentialAuthorizatign, March 11., 2004.; page, 4gb). However, 
language. Was'r'now Qualified? by the fdl?lowing: tw0e:_subparagraphsr

?(i1 the 5313mm? of Defense  obtaineand retain
 I Chain

 
   
 

  
  
   
     
    

  
 

  

      
 

        
       

no, .-
mformation, including 
telecommunications dialing-etype data, shall occur Dilly- in

*aecerdanee with.  authm?izei?e'n; arid,

461) information, including.
?tel-eeommuniea?ens is. ?acquired? for
purposes aftesubparagreph when, and only Wham-the
Department-Of ?Defenaehas Searchedfbr .and?mttieved Buda-
header[renterfaddressingetype: inf?rma?an, including
dialing-??ips data {and eat when 
Depaftment obtains such header] router/ addressing?iiype

.  . 4.  4. I ..     data).

  

  

Id. at para.  

In essence, the March 11, ?2,004, Authqri-zation for the first time
sought to make-clear that the NSA ?b d' tn? telephony and
data baskets 52311613)  7 
311 . Jeeted could-Only be
.qugeriEd ?acquired?? in accordance WIth any of the three conditiOn-Ssetifor?th
ill-paragraph} This language. clarifying what the term ?acquire?

     
     

      

      

      

 

1:70 The term ?obtain-fies first introduced inthe .Mareh 11, Eresid?eg?al
Authorization, was meant to be. Synonymous with the. term ?collect.? 1

 

 

i-n-every successive; Presidential Authorization for the.
remainder of the program. ,1 [0?3le1}

 

?Moreovepgthe Presidentassert?ed: in the March 11 Authorization that
the betWeen ?obtaining and retaining? meta data
Versus?acquiring??- th'e metal?datfa the consistent course. of conduct
u-nderjsueh Presidential Authorizations that?hae been known to and:
authorized  me; be ecleemed. to havehbeen ta. partef such. 
Presidential .Autheri?zetionses  [paragraph a; (1:01 had been eXpliGi?jy
in'elu?ded :in eaeli?SuCh EPfee-iden?el Authorization at the time of presidential
siglaj?ttire; 7 ?y actiOn taken priorrto- presidential signature of-this'
a?th-erlizatien, that is. Consistent witlithe. preceding sentence is ra?i?ed and

con?rmed-?m Id. at para. 403.). 

Awarding to-C?omey  Philbin, this-new language was Addmgionie
Philbin said he believed "thenewlanguage was ?Suf?cient? tie
address edens did not
Iaelicquatelyvdezseibe11h  ., being carried 
 altheiughhe=?jbe11?ieve  -  

     
    
    
  
   

  

 

  

      
     

In 1113.016" interview; Geneales-dee'lined to explainthe signi?cance of
  baSGd?enan?aSSer-tion fromftheSpeCial Counsel?td'the-
1'1- er; .- .

 

 

 

Hayden and Ph?ilbin both told the OIG that Addington drafted the Presidential
Authori?zatione. In his 01G interview, we asked Gonzales who drafted the March 11., 2004,
Authorization. On the advice of the Special Counsel to the President, Gonzales declined" to

an swer. (W

 

   
 
 

  
 

    

 Significant departure from prior Authorizations was the
stagtame?nt that ?the Attorney General of the United States
approved as. ?to: forrmaand legality [all prior Presidential Authorizations]
Extended by this authatiization?? Id.

.?I?i?waBz?i Gonzales told us that he 
?edarftmenteundethud 

 

 

that 4 a ?he NBA swam
gliderstandm?g o'f'h?ow the program was actually implemenfed;  7 

 

 

 

. asked a'G'onz?ales? whyhe signed the March-11, 2004, Presidential
Authorisationeven though the Department could not suppOrt it. On the-
?a?diriceof? the SpeCi?al Counsel to thePresident, G'OnZales. declined .to anSWer,
HoWeVer, Gonzales. stated  the White House? provides
legal-advice ?tothesiPreSid?en-t and that his signature on the AuthorizatiOn
his-advice- as to its form and legality. 

SA Directo'r?Hayd?en- told? us? that?Addington asked. him Whether the
NSA- WOuldibe Willing- to continue-the Stellar Wind program Without the.
liaise-Department?s certi?cation Hayden
said  a fitough question? and that be consulted  leadership
 at the  before-makings; decision. ?Haydengsaid?ithat- three
him'tq continuesthe program; 'tFirs-t, the
congressional membel?s-briefed on the situation onTMarch 10:, 2004, WEre
assertive of continuing the-program Without. Corney"s certi?cation.
SeLoO?idi, the program had been opera?ngi for the previous two: andgahalf
years..With?Departmem? approval. Third," the. NSA General Cetlnse'lis offi'Ce.
told  the program was legal, Hayden-said he was. unsure Whether
proceeding Withoutfthe certification was atsustainable
appranh, but thathe-was comfortable doing so When the issue arose in

March?aooa 

B. Department and. FBI Of?cials React to Issuance of
March 11, 2004, Authorization 

Several Department and FBI leadership officials considered resigning
after the Presidential Authorization was signed despite the Deputy Attorney
Gener?al?s refusal to certify the program based on the Department's 
determination thatcertain activities it authorized were without adequate
legal support. Many of the Department, FBI, and White House officials we
interviewed characterized the events immediately surrounding the issuance

 

17? In a closed session of the Senate Select Committee on Intelligence on une 26,

2007, Gamay-dammed- his belief regarding the new language, stating, were some
additions to?the text that were an effort by someone to try and fix the record in some

res?peCt.? 

 

 

 

of the; March 11, 2004, Presidential: Authorization in d:ramatic,ssharp :?terms,
. Several the impasse and
:de-s'crib'edxa sense  dietr?ust and anger that permeated theirrelations"With-
White H?ouSe o'ffiei'a-ls during this period. In a letter. of reSign?a?tionthat
Gamer Wrote but did. not. senidrhe described this-period as'an- ?apocalymic
i 

 this section, We describe the reactions ot Department, FBI, and
White HOUSE OffiCiails to. the. White House 'deeision? 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 Colmey by telephone on the
merning of March 11, 2004, that the Freeident had signed the new
summation that morning? At?aproximate'ly noon, Gonzales called
Goldsmith to inform him that the President, issuing the Authorization,
hadmadean interpretation of'law concerning 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
hes-Would let Goldsmith know. -

Later that day, Gonzales Called Goldsmith again  told him that
OLC. should continue Working on its legal analysis of the program. In a.
third call thatday, however, Gonzales- direCted Goldsmith to suspend work
on the: legalzanalys'is? and to. decline'a request from the CIA General Counsel
to review a draft of the new OLC memorandum. 

Goldsmith followed up this series of calls with a letter to Gonzales
seeking clarification 0n= 'Gonz-ales?s instructions. Goldsmith wrote that he
interpreted the MarCh. 11, 2004, AuthoriZa?on signed by the President to
mean that ?the President has determined the legality of [the program] in all
respects based upon the advise and analysis of your office, and that officers
of the Department of JuSti?ce 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? letter.175 As described below, Goldsmith and Phil-bin delivered

 

175 Goldsmith said he discussed a draft of the letter with C'omey, Rosenberg, Ayres,
Olson, and others. and edited it based on their suggestions. (U)

 

 

  

this letter-to Gonzalestat his reside-nee atappr?oxirnate?ly 11:00 pm. that
night. 7'  

At mum on March 11, 2004, Director Mueller met with. Card at the
White House. to Muelleris- program log, Gard-summoned. Mueller.
to his. offiCe to bring Mueller up-to date-on the events of the preceding 24
hours?  recounted. for Muellerithebrie?ng of the congresSional 
 prim-afternoon and-the. President?s iSS-uance: ?fth-e: new Authorization
WithOutthe Department?s approval, InadditiOn, Card told Mueller that if no
?le'gislativeiifiit?could be foun-dby May 65, 2004, when. the-current
Authorization Was Set to expire, the-program would be. discontinued.

 

notes, Card acknowledged to Mueller that
President Bush. hadsent him. and Gonzales to the hospital to seek Ashcroft?s
certifi-eatiri for  Marc?h 1 l, 2004,- AuthOrization, but that Asheroft had:
said he was too ill to makethedetermination-and that Conley-Was the
Acting-AttorneyGeneral. Mueller wrote in his program log that he told Gard
that the failure. to have Department oft-Justice representation at the
congreSSional briefing and the-attempt to have-Ashcroft Certify the
Authorization Withoutgoing through corney ?gave the strong perception that
the [White trying 'to- do an end run around the .A?cting [Attorney
General] Whom they. knew to have serious concerns ast?o :theleg'ality of
portions of the program,? Guard responded that he and Gonzales were
unawgre at the time ofthe-hbspital visit that Comey'Was-the ActingAttorI-Iey
General, and thatstheiy had only been following the directions of the

President. 

Mueller reminded Card that Mueller had told Vice President. Cheney
March 25004, noon meeting-that Mueller could?haVe problems
with the continued involvement in the program. if the White House
issued an Auth'Orization without the Department?s approval. Card said he
understood Mueller?s concern and told him to stop by ?Gon'zales?s office to-
pick up a copy of the March 11, 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 Corney he
would be submitting a letter to Corney requesting advice on the legality of
the continued participation in the program.?6 

 

?75 According to the Muellcr?s program log, Gonzales called Mueller at 2:50 p.m. to
tell him ?assure security of Copy of President's order.? (U)

 

 

Later thatd'ay, Mueller sent  a memorandum, prearedj  FBI
General Coimsel valerie -'Caproni- and-an. FBI Deputy 1 General 
how the FBI shQUld proceed in  
developments. The memorandumaskedi?Wh?ether FBTagentsdetailedto the
 to work on. Stellar Wind s'houzldf?be recalled hethei?the'FBl?shoul

           
   

fficie=of51i1telligenoe Policy- (OIPR) 'C'ouns'eldames- Baker
also expressedhis concern 'abOut the White House?s action. 3011 the evening
of Mar-eh '1 204, he drafted a memorandum to Comey containing What he
later described. as a series of ?loaded questions? concerning Whether it was
ethical? for continue filing applzicatiions'with the NBA

Court under the circumstances..177

Goldsmith  Philb?iri called Gonzales-late in the evening of: March 11,
rthsik: if?thejy could? visit himat his residenCe to deliver the letter. Goldsmith
had written earlier in the day. As describedabove, Goldsmi?irzsoL-i?ght to
 a reoord of his with Gonzales-gin which
:Goldsmith believed Gonzales had; conveyed con?ictinginstructions
regarding how OLC Should proceed?in light of the 
March 11 Authorization. 

Gonzales told'us that Goldsmith drafted the letter because Goldsmith.
Was-rf?honfused? about Whether should its-legal
analysis of the program. Gonzales. said he recalled  
Philhin Were ?somber? during the meeting at his house; GonZales said that
he told them that the President had decided to go .fomardwith the program,
but that they should continueworking to resolve the outstandjn?glegal
questions they hadiand try to find a'solution. He said he tried to convey to
them his confidence 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 Ashcroftls 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

 

177 These issues aredescribed in Section II C?of this ehapter in connection with the
Department?s meetings with F-ISA Court PreSidin? Judas Kolla?Kote?lly to discuss the use in
FISH applications of information derived fro  collected under the program
following the March 11, 2004, Presidential Authorization and Its subsequent modi?eations'.

 

 

 

hetencounteped more ?ipushba'c-k? from Addington than from Gonzales, 
that-Ganesha ?wantedto do the -  . 

2. Department and  Of?cials Consider Resignihg ?(tUl

Comey told us he drafted a letter of.resignation shortly after the
incident inAshcroft?s hospital room on March. 10.- Comey said he drafted.
the letter- bec?ausehe? believed, itiv?vas 'impc?assi-blevfor? him to remain-with the
Department if the President would-do something the Department said was
not legally supportable.173 (U)

Comey also testified thatAshcroft?s Chief of Staff David Ayres believed
Asher-oft also was likely. to resign and urged Corney 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
lelbWiI-lg individuals also were prepared to resign: Goldsmith, Philbin,
Chuck RoSenberg, Daniel Levin, James-Baker, David Ayres, ?Deputy'Chiefiof?
 to thezAttorney General David Israelite, and Director Mueller. C'omey
also respondeditowthe Que s?tion that he believed that ?a large portion? of his
staff als?O'Would haVe resigned if' he had. (U)

Goldsmith told us he Was ?completely dngusted? by his recent
meetings with White House officials in connection with the Stellar Wind
pregrarn and that he drafted a resignation-letter at arOund the same time as
Conley. The (BIG obtained a- handwritten liSt'Goldism-ith-had Compiled as
these events were taking place to memorialize his grievances with the White
House?s actions during this period. The list'includes-r

the of the whole thing,? which Goldsmith told us
referred to his belief that both the process by whieh 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;

 

175 The letter was addressed to President Bush. Also, at 5:46 pm. on the evening of
March 11, 2004, Comey sent an email 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
fired by the President or quit, but I will have done the right thing fer my
country. (U)

 

 

 

a both in at. the
Justice. Department and Other agencies, and not keeping;
Congress. informed;

o- the; hospital incident, which Goldernith' described as ?"shameful?f;
?[dj]iSregard o'f'la'w? on thepart of the: White Hottse (areference
Goldsinith. did not expand'uponwi?rrnore specificity duri?nghis
interview with "the I 

c: the White Houseis. 'Claifmthat legislative. fix cOuld hie-achieved,
Wh'i'cih Goldsmith regarded as ?irresponsible? because he
believed "at the-time that a legislative remedy was net a viable

Option- 

A Goldsmith?de?scribed three additional: items on the list-in particular as
?false, representations? by the White House:

:2 re shutting down,? referring to theWhite Heuse?s
assurances to Goldsmith on severaloccasions that it would
shut down theprograrn- if the OffiCe. of. Legal Counsel could not.
?nd legal support for it;

re tell-ingit'he President] of problem,? referring to
representatiOnSs that the President had been-lcept-informed of
the Department?s Canoernseabout the program; and

assertion-s by White House officials that they ?[d]idnit knew AG
was incapacitated?. - 

  

Goldsmith stated that-on Thursday, March 11., Ayre's asked him not to
resign because the Attorney General should have the chance to dose firSt
once, he had fully rectivered from his surgery; Goldsmithsaidhe was-Still
?on thefence? 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 11 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 prOgrar-n

 

?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 bean
effectiVe head of the Of?Ce of Legal Counsel after his ?unprecedented? withdrawal of several
legal memoranda! including those drafted by You. Goldsmith added that he also resigned
because he was ?exhausted? from his work in OLC and had recently been offered a teaching
position at Harvard Law School. (U)

 

 

the. i?aWS_ that  of gall. Counselhad idfentified'i?n iitsflegal
analysis. 'Philbiri .?saidighe-was ?absolutely ?serious?- aiboa?t resigning, adding,
we they?re goinggto.  strong-arm the guy on ?motrphine, What else are

they going-to do?? .

Baker 1:01:31qu that hezalso: considered. {resigningafter the President.
signed-the AuthoriZatioe but ultimately decided  in. his-p0  
part'beeause of his-fem "tolerategniass:
resignations of. senior ,?gOVerenl?-?t- Diffiei?el?s? rather  reviee  Stellar? 
don?t what means intermiswzof the rule of law in.
this oeuntriyi? Baker also stated. that?heknew he hadcert?ain' protection-4?s:
from removal; for a periodoffti-me-EbSCaLISC-"he? was; acare'er' and that
he wanted to remain as Chief. of OIEPR t? 
relatiQnship with the FlSA-?Court-and to protest the attorneys irrhis office;

 

Levi?  he: W218 to, resign iover  matters and.  gave a
signed resignatio?: letterte   15?; usgd by him ghOWBVer [he] 1.61 
appropriate Levin. said he did-so would help to gar-thawhite HouseJ to
Changeit-s- Levin 1'   he Shared
'Golds??thi?s View thatthe .
without a I
at the->th Spital. had been ?outrageous?
baSiS' alone, . 

  
    
  
 
 
    

 
   

 

duct-during the in'eid?ent
endihie was willingto ?resign on that

    

General Counsel :Caproniatold' :us that :shewal-Sio Was-(prepared to
resigm She- said that'the ears. pri'maljzzeoncern regarding the. impasse
between the Department and the White-House over the r?ogrameras not
with. issues of privacy andci'v?il liberties, butrather With: ?the rule of'lawf?

 

At approximately 1:30 am? on March 20074:, Mueller drafted: by:
handa. letter stating, in part: ?[A]fter reviewing theplain 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. F8175
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 0n 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. 

 

 

 

3. Gamay and Mueller Meet with President Bush 

the merning of Mare-h 12,- 2004, Corney and Mueller Went toathe-
White-HouSe to.-attend the regular'daily threat briefing with the President'in-
the-Diral Office.? Conley said. that following the briefing President Bush
called him into-"the. President?s private study for an ?unscheduled meeting.?


. Comey told us that President Bush said to him-,- "You look burdened?
Comey told?the Pres?id'entithat he did feel burdened, to Whieh the President
responded, ?Let melift'that burden from you.? Conley told the President
that he felt as if he were standing on railroad; tracks with a train coming
toward him to run oyer 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 prOblerns associated With eat-3h.
President Bush responded With Words to the effect, ?You whipped this on
me?? all of a sudden, that hewas hearing about theseuproblems. at the last
minute, and that the President not being told of these deVelopments
regarding the program was ?not fair to the American people.? 'C'o?me?y
responded that the President?s staff had been advised of these issues ?for.
weeks,? and that the President was being "?s'poorliy serVed? and ?misled? by his
advisers. Conley also saidto the President, ?iThe-AmeriCan people are going
to freak when they hear What'ooll?eetion is? going on,? President Bush
respond-ed, ?That?s for me toworl?y about.?  3 

      

ACcording- to Corney, 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 PISA by then he Would shut dawn the program. The
PreSidentemphasized the importance of the program?a-nd, 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 stand, I can do no other.? At
the end of the ConVersation, Corney 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. ollowing the conversation, Conley went to Mueller, who was
waiting in the West Wing, and started discussing- his meeting with the

 

 

President. "Word Was then sent toMuelle-r through a Secret Service-agent

"that the President Wanted t6 meet with .him.13-0? 
Mueller-later ?l-Sid?? nete's in, his programing about his. meeting 

PresidentQBuSh. hectording to his-notes, the.'iPresident told Muellerthatghe

about another terrorist shade and that he?.

lined? that the Stellar Wind program was essential to preteeting?

rt fu-

 
 
  

 

b1, b3,
b7E

   

believed  woul?dbe aCCOunitahle?-if he did not do
possibleth prevent another attack. The President explained. to
Mueller that. fer these reasons he had authonzed the Continuation (?fths:
pregra?hi evenwithout the iconcurrenCe of the Attorney General as to the

legality of ?Various aspects of the program.?

Aceerding to the notes, the President :told- Mueller that the
congressional leadership had been briefed-on the-President?s action to
lentendthe program and was ?Understanding;.and- supportive of the
?Presidentis position.? The President also toldlMueller' that he had: urged
Conley to agree to extend the program until-May? and that he hoped for a
legislative :fix by that time, but that if no legislative; sel'ution could be found
 the legalityof the program was still in question by that time, he ?would

shut 

AcCorfdin-g" to notes, Mueller told the Presidentiof his
concerns regarding the continued participation in theprogram-without
 opinion from the-Attorney General as to-its legality, and that he was
considering resigning if the FBI were directed to Continue to particia?te
without the ;conCUrre_nce of the Attorney General: The President responded
that he?Wi-shed to relieve any burden [Mueller] may be laboring under" and.
that heididnot 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 office for 15 minute one on one talk.
Told him he wasbeing 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
premised that he Would shut down 57/16 if Congress didn?t fix FISA. Told him.
Mueller was about to resign. He just pulled Blob into his of?ce.



 

 

 

I According to Muelle-r?snotes?, the P~resident?expressed understanding
for-Muelleris posit-ion and aske-What needed to be cloneto address
nuances concerns Mueller responded that Conley, the "Office of?Legael'
'CounsieLthe and the NSA ?needed to sit down immediately? and .ass?eSS
 legal status of the program in light of. deubts about the existing
legal rationaleand the March 11?, 2004, Authorization. Mueller wrote:

    

7 Awarding notes, the President then directed Mtie'lljer to
'rnee?tlwith? Comey'and other principals to address the legal concerns 50 that
the FBIciou71deontinue participating-{in the program ?as appropriate-under.

the 'l?awl,?

 

 Mueller toldus he, met with Comey an hour later to: begin
coerdinating that effort. At 4:50pm. that afternoon, Mueller called
Gonzales to. request that additional Department lawyer's be-read into the
prograini: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 Corney and other

-

principals to address the legal concerns averted the mass resignations. at

the Department and the FBI. According to Corney and other" Department
officials-V, the White House?s decision to. Seeka legal solution and allow more
attoiineys to beread into the program was a significant step toward
resolving- the dispute, and in thewords of. one Department- official provided a
way of 3?Stepping- back from the brink.? As We describe below, these
Department officials still faced the challenge of finding a legaland
operational remedy 'for the program that would address the concerns of the
White House, the NBA, and Department, 

4. Conley Directs Continued Cooperation with PISA (U)

On the merning of March 12, 2004, Comey decided not. to direct OIPR
and to cease Cooperating with the NSA in conjunction with the
program. Comey?s decisionis documented in a 1?page memorandum from

 

At least three additional Department-attorneys Were read intothc program on
March 12, 2004, including OIPR. Acting Deputy Counsel for Intelligence Operations Peggy
Skelly~Nolen and two OLC attorneys. (U)

 

 

Goldsmith- to Corney in which Goldsmith explained Why Comey?s. action was
legal. 

jl?nhi?s mornorandum, Goldsmith stated that the President, as .,
commander?eineCh?ief and :Chief'Executive with. the constitutional duty to:
?take-care that the: laws. are faithfully executed,? made, a determination that
StellaiiWind, as,p1?a3tiCed,WaslanLIl. Goldsmith concluded that this

       
  

 



 

Department Conducts Additional Legal Anelyeis (U)

 

On March: 12,- 2004,, an interagency Working group was convened to
continue the legal analysis of the pregr'a?rn. In acCordance With the
Presidents direCtiVe to Mueller, officials from the FBI, NSA, and the CIA
werebrought into the process, although the OLC maintained the lead role.
The workinggroup included Deputy Solicitor General Clement, Baker, FBI
General Counsel Ca-prbni, Mueller, and several attorneys from OLC. Conley
said CIA Director Tenet and his Deputy, McLaughlin, may have had limited

participation as well. WW

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

 

35.? 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)

 

 

 

 

gcomparedjwith that-0f   {Mueller said :that?iayti??:provided slides
highlighting. cases in 
iinfermatien prayed:u.seful._   :1 

wCapgr'Oni.toId that during; this March 2004 period, and-two other
3 -  of?ciials made "anteffort wuat Value?  FBI 
Stale:'Win'CEdeIivcd  waswdi-f?cultto
Value ofathe?program-? duri?ngfilm? early- stagesvbecause FBI field
offices. time?Were  required to reprt back to F1. Headquarters
Withiieformation abou-thOW-infarmation fram?the NBA program had been
-7 

 

On the afternoon of Sunday, March 141,204, the Department
convened a large meeting inthe: Justice Command Center- to ,reyiew-OLC?S
 program. .Muellen Carney,? Goldsmith, Philibin,
Bakes CIA General CounseliMi?len Captor-ii, Tenet?, Hayden"; Olson,
Clement, and-several lawyers attended the meeting; 1 

   

Prior to the meeting, Goldsmith. and'Philbin prepared a detailed
outline 'ofDLCi?s' chrren?t  Which-Goldsmith ?described: to? us as his
?mdSt'honeet.take? of the-legalisweset  Goldsmith Said 
me outline-to meeting-?partieipa?nts  used it to:  the? group

    

 

 

133 Capr?o'n'i- had been appointed the FBI General Counsel  August?2003 and was
read into the Stellar Wind program in-September or.'October 2003., She told us, she did not
givemuch thought to the pregra?m at the time became OLC had determined that it was
legal. She stated that in 200.4- she learned thatDLC was legal analysis

and had concerns with it. She later spoke with Philbin, Who?confin'ned to her
that he and Goldsmith had problems with the legal support fer the program and that he
was frustrated because the program was so compartmented that he could not talk to
anybody about it. Capro?ni told us that at some point she obtained a copy of Yoo?s legal
opinion. She stated that after reading it she immediately understood Philb?in?s concerns
because the opinion appeared to lack analysis and simply concluded that the program was



if? Electronic Communications Analysis Unit compiled a summary of
 ..  Stellar Wind tip results {rem Jamiary 1, 2003,. through mid?December $2003. b1, b3
However; the data. included in. the summary. was incompleteContin any analysis of the effectiveness of these tips. Another study of the 5 i 
 tippers Was conductedjn 2006, The results of that. study are discussed in ChaptersSix
ofthisreport3a10ng with the OlGls-analySis of the effe?tiVerless. of the program.

  
 

           
   
 
 
  

 

 

13$ Geldsmithalso 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.

H?mvever, asdiscussed abOVe, the White House had briefed the congressional leadership
aboutthe prOgram on March 10?, 2004. In addition, the former Presiding Judge of the FISA
Court, 'Reyee Lamberth, and the Current Presiding Judge, Colleen l?Collar?Kotelly, had been
read Into the program by this time. (U)

 

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Goldsmith told us that that/[arch  4- meeting'Was- designedto. achieve -
ful?lzennsensusaamong the prineip?a'ls on theiss'uefs?, andi?iat the meeting
was; in this. regard. (U)
That evening Mueller called Gonza?l  Nee-Fess- had
been made, altheugh legal to: i" {had
enot?beentennd. Mueller. also told Gonzalesthat 1m 
.sheuldspeak directly With Ciomey. On these matte-rs.

 
   

 

Conley Determines that Ashcroft?e?mains ?Absent or
Dis?a?bled? (U)

Attorney General Ashcroft Was released from the hospital at norm on

March 14, 2.004. The nextday, Conley advised Ayre's by memorandum that
Ashereft?s elector believed that Ashcroft required additional time to
recuperateat home  was. not yet ready to restime'his responsibilities as
Attorney General. Corney?s: memorandum noted 'th-atrthe doe-tor intended to
.reassessAshcroft?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).
Come'y?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. 0415(a). delegates to me in my
regular capacity as Deputy Attorney General. (U)

 

 

 :COpyH-of the-memorandum was sent to Gonzales at "the White Heuseand to;
senior- D'epartment (U)

Judge authentically entered on Lacs or-?Atterney:
General (U)

Asrdiseusse?d earlier {in this report, the extent to which.?OIPR could? use
Ste'llar'3Winds'derived information in PISA applicatidns had. been limitedby I
Judge.KollaraKotelly, the Court?s Aftet her readariaeto-
itheprogram in: May 2002, Judge had directed  to-
eontinuej. with-Some. modificati0nst, the ?iserubbin?g? procedures for FISA
applications 'in?place at that time. it

According to- an OLC memorandum, on March 1.4-, 2004, Judge
Kellar+Kotelly {Was- informed that the. President. had. reauthorized the V?Stel?lar
 program, but that the. latest Authorizatidn lacks-dethe Attorney
Gan-amps certi?cation: as reform and legality; 190 The: memorandum
indicaitedthatas airesult i?ollar~Kotelly?suncertainty about. the
implications of  ?development, she intended to insist on a templete
separation of intermation. derived from Stellar Wind, Whether direCtl-yi er
indirectly, from all PISA applications presented to the FISA Court, The
memorandum?noteid that. ?[h]ecauSe of?the way tips get worked-into (and lost
in) the mix of intelligenceinformation, that  would have virtually
crippled all countersterrorism -- I 

3. Come}; and Gonzales Exchange Documents Asserting
Con?icting Positions (U)

According to Mueller?s pregram log, on the morning of Monday,
 15?, .2004, folIOWing the-daily threat. briefing in the White House
"Si-tUat-ion Room, President Bush remarked to Mueller that he understood
?progress had been made,? referring- to the discussiOns on the legal basisv'fOr
the Stellar Wind program.- Mueller called C?omey shortly thereafter to convey
the President?s remark. Mueller suggested to Comey? that additional
briefings on the program should be given to CongresS, including to both the
House-and Senate Judiciary Cemmittees. 

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.

 

35" As discussed below, Ashcroft?s doctors later cleared Ashcroft to resume his
duties. as Attorney General asof March 31. (U)

?90 The memorandum was prepared in anticipation of a briefing for the Attorney
General on March .30, 2004. (U)

 

 

 

"March 14,2004 (discussed. above), that OSLC had. not reaehe?d; arty;
ebneluSieti-?s ?a?d yet-prepared to issue-a final (Opinien'oti the

program?" The memerandumalso stated that the-Stellar Windpregtam
heten'tf'iially implicated' Various Con-grie ssionaliand ihtra?instecutive Branch
repetititig;tequitements imposed; both by statute-and. Executive (Dr-den A The

I memorandum? stated that OLC?rwas Only beginning to analyze these


  

Goldsmith and Philbin went toe see Gonzales 01:1 the-afternoon 
Match 15 to explain what OLC had determined  its.1egal.analySis to that
p'eitit,? to noitify'Grlenzales that he WOuld be heath-1g fi'rjomComey
shortly about the Department?s position as to the-program?s legality. 

According; to Philbin?s contemporaneous notes en the extents, of the
next We days, "on March 16}, 2:004,- the momitig threat briefing at
theWhite Reuse, Cemey? told President Bush that had finished its-?
 analysis 9f the program. 191? Conley asked the President it?
Ceimey'should Convey the details of the analysis to the

President?jndieated; that Conley should d0 80: 

After "Comeytetutnedto- the Department, he signed -a *shert
memoriahdum to "Gonzales that he had. drafted the .Iiight'befete. In the
 Conley first recounted how the-President on March 12,? 2004;,
 directed the Justice Department to continue-its analysis Lof'th?e Stellar
 program and to. "?p?rOV'ide its best advicecOn?ceming'Ways tel-?Change the
program to; cenfermawi?th the JuStiCe the
applicablelaw? Comey then described the-compOS-itiorivof the Working
'gmupgeonvened to accomplish this abjective and how the group?s efforts had
res-ulteduin Supage- analysis, which Cemey attached to his
 5?

  

Conley then :set out hisad?vice to the President; According to the
11:31 Cemey advised that the President-may lawfully continue:

 
   
   
     

legally aggresSive indeed, novel arguments . . Carney
fu ther-rote' that the-De - tment remained unable to find a legal basis to
-   lb ll - Come advised the such

         

 

Philbin told the. OIG he-kem notes of these events because. Come}! had asked
him to ?keep a record.? (U)

 

 

         

   

rais?edw?fsjer10us_ issues about congressi . inst-ificati?on, ?partiei?arly where
 'legali?basisfor the program-is? the President?s:decision toass?ert his
authoritth oVerri'd?e an, .otherWise applieable Comey'-wr0te
 Would continue to exp-lorex?the notification" is sue. 

         

   

Conley instructed Goldsmith and. Phi-lbin to: hand? deliver the
memoranda to? Gonzales at the White House, id. also
delivered, Copies to. Solicitor General Olson; Philbin?s. notes "indie-ate that
Olson Was"; ?annoyed? that Come-y had sent the memoranda to the White
House-window consultinghim, andasked. Philbi?n .seVeral times, ?what?s'my

role Supposed to be here?? Olson also said to. ,Philhin that he thought the
memoranda werega ?poke in the eye?to- the 'White-H-ouse. Philhin wrote that
Olson?s reaction ?raised concerns may havergotten himself too
far butt-here alone? by not bringing Olson. in On the Department?s- legal.
*ieadvancez (U)

Comer livid us that he knew his-memorandum would anger peeplesatj
the abuse because hehajd put  writingthe arguments. questioning
 _of:iaspeiets of the program and that the memorandum
Goldsniifth?s, attachment Would become a part of the Presidential records
 Would'be discovered later by historians. He. stated he believed it was
nnpor-tant to ?make: a record.? (U)

According to Mueller?s program log, Gonzales called Mueller at: 1:45

1.1-6 to discuss the situation. Gonzales explained (to Muell?i'
ntis tentatiVe Gentiles-ion that legal support for
as still lacking, Gonzales would bare to make. a
seed. Genzales t'o?ld Mueller
if the President decided.
  Mneller responded thathe.
1.1 to ta re nine as? s, ut that he ?would have to
give it serious consideration if the President decided to go ahead in the face

off finding.? 

Later that afternoon on March 16, Card called Comey to the White

se-for a meeting. According to Philbin-?s notes, ?the back channel word
 or ale was that President Bush might be ?ruling to

Prior tothe- .rnee .ing,. Conley, Goldsmith, and 

p.111. on rel-l:

    
 
 
 
     

 

  

Hou

          
   
  

hilbin
the

 
  
 

 

 

   

 
 
       
  
 
    
 

 am; would: decide ?'vejrys?o'ong?

  

     
          

omey  displea Aer-Ithat-?Corriey had. putin Writing 
po?s?i?on On the legality-of         

Teapevemng, while resending-a. farewell dinner for a Department
'eolzleague at Ph?ilbi?ri received ar'o'all from DaVid Addi?ngton

i?diC?i??gzthatzhe.W?l??d  deliver a le?tt?r Gonzales- had?written to Comey..
Ph=ilbl?lrme?t Addingtori atthe_- Department at .8230  that night'th accept

letter; Philhiri?s- notes-also indicate. that Genealeshad called :Com?eyr in
advance to teleromey-?not to get too overheatedtlqur the letter.? 

Gomey told us he recalled. that Gonzales teld him in the call. that the
White House would agree to work with 'theDepartment to.be the program.
 thatgemeysheuld;not ?ovleri?eac.t?to Go'n?zasl?si?s letter. Comey said he
relieved Addihgton, and? not Gonzales, had. actually drafted the letter, and
thatiGanal'es tent ito?ully to saunter GomeY?s.memorandum to make a
record 0151  of the White House. 

I Gonzales-s that the Presidenthad. directed him. to
respond to? Carney-?8 memorandum. The letter stated;

Your: memorandum appears to-have been based on a
m?isunde'rstahding of. the Presider'i-tis ex-peet'ations re garding. the
condiJct of, the Department ofJustiCe. While the President was,
and in? aHY/th'oughts the of"
Justice may-have on alternatiVe ways to achieve effectively the
gOalSIsof the actitfities authorized  the Presidential
Authorization. of-March 11., 2004,. the. President. has addressed
definitively for the- Executive Branch. in the. Presidential
Authoi?ization th?e'interpretation of the 

The letter excerpted the language of paragraph 10 from the March 11,.
2004, Authorization, which recited ?the bases on which the President acted
to rea?uthorize the program, and then concluded: ?Please ensure that the

 

GOHZales?s letter also addressed Comey?s comments about congressional
notification. Citing Department of?the Navy u. Egan, 484115.518 (1988) and a 2003 OLC
opinion, Gonzales?s letter stated that the President has the Constitutional authority to
define and control aeo'ess to the natiCn?s secrets, ?including- aut-hority to determine the
EXtent tO-which disclosure may be made outside the ExecutiVe-Branch.?

 

 

Departmentijd-uStiCC complies withithe directimigiven-in, the Pissid?ntial
4    - - -

 



 

 
 
   

. - regereg.  GonzalesCalled-Comey to .adiz?ise  of
the President?s.?demsiion onMarch 17., 2004, and, Comey passedthis

infOrrlnation to Mueller-later that day, C'Orn'ey, in an email dated March 1.7,

eatpressed relief at the President?s decision, Writing:

Eoiday, in a remarkable development, We stepped batik from the.
brink of "disaster; All seems-We'll in the-Goyemment. 

thingwas done. 

*Gon-zales ton during'hisxinterview that 'h'evo'OLJ-ld not say
whether the prospeet of; resignations at the may
have. had  impact on: the President?s decision.-194  were notable to
interview other-sat the White House to determine.whatfspeei?earlly caused:
thep1"ogram to be modified in accord with the D?epartmentislegal position,
(U)

The. President?s direeiti?i?Ve was expressed  twe: modi?cations to the.
 11, 2004, Presidential Authorization. These well as
the operational and legal implications of the President?s decision-for the
Department and the FBI, are described in the n-eXt seetions;  

 

i. Modi?cation (U)

On March 19, 2004, the President signed, and Gonzales certified as to
form and legality, a Modification of the March 11, 2004, Presidential

 

193 Come},r stated that he did not believe Gonzales wrote this letter. He stated that
?Addin'gton was the ?ame-thrower? and that Gonzales was generally more reasonable and
moderate. Conley said that Genzales had later apologized to both Corney and Ashcroft for
his conduct during the March 10 incident at the hospital and had even cemeraround to
agree'with Philbin and Goldsmith ?3 analysis regardingthe program. Gonzales told the 01G-
that he?did not apologiZe to-Asheroft for the incident in the hospital hecatise he had been
ins-trusted by the President to go there, but-stated that he ??egretted? the incident. (U)

?'94 Ho?wever, When Gonzal'es-Commented-on a draft of this report, he told the 
that the. prospect of resignations at the Department and the FBI wereanot the reason for the.
President?s decision. Gonzales stated that he. could not elaborate on- this Statement dUe to
eXecutive privilege considerations. (U)

 

     
  

 

?oors-take: :1 "that ?this?

.Au?lo?zation; The first paragraph .of?the Mod-Him: 
siden?i-e?rl: Auth' ?ization of

memorandum! as a. policy-matters. modifies: 53%
20204 as set'forth. below -. .o . and ii-
by an Au?iorizationsm the-exam sat

 
      
  
 

tort 2111: 12-
Modification]? Tho  19 ,?Modi?oati?oo: made t?Wo significant changes to,
the @3581?5113.Auth?rization and 1 angeaiffmti?g all
Authorizations To. allow for a :t changes were to.
  at. midl?ght .326; $2004.. 

  

 

First, the-March 19 Modificationinserted language ma?arrow content
collection {basket to al. Qaeda and as, the 
Dopartment had adVis_ed,. The new con-tent od?eotiOn authority in, paragraph
Math 1 1 Authorization?, with; the. new language  the
March '19 Modification indicated in italics", was:

aoqu?ire a Cd'mmunlimtiml (inoluc?ng but 1101: limited to aWire-
communica'tioanaIried into. or out of- thoUnited; States by cable)
fan'Whioh, based 0n the Ifac?tual'- and: practical oonsidiorations of
everyday life on. which reasonable and prudent persons act,
ther?are reasonable grounds to'beliexre such. communiCation.
originated or tem?nated ouLtSide- the United ?State'san apa?y
to such communication is a; group engagodfin international
terrorism, Or aetivi?t'ies in preparation therefor, or any agent of
suchalgmup, provided that such group is al' Qa??da, is-a? group
af?liated with Lil Qa?fda, or is a-r'mthergroup that tief?jm'i?efor
purposes- of this? Prosiden-tia'l Authorization is in rammed Con?ibt
with the United: States and poses a threatofhostile actioniuithin
the United a  - 3 

 
 

1

    
 
 

  

"he language, with the deleted
dicated in italics, was:

    

 

Each Presidential Authorization. had contained a directive to the
secretary :of Defense not to- disclose the. program outside the Executive
Brannon-without the President?s approval. The Modification reiterated that
any change Was not intended to reverse the President?s control over access

 

 

 
   
    

The ultimate disposition of this previously obtaine 
subsequentlyaddressed in anApr? 2, 2004, Modification, and therea ter in an ..
2004 Presidential memorandum to the Secretary of Defense, as described below in

subsection  

 

 

 

 

 

195 Bradbury was nominated tobe Assistant Attorney General for OLC in June
 this position, and. told us that after exhausting the time
period;er use Liner the Vacancies Reform Act of 1.998 (see 5 U.S.C.
 reverted to Principal Deputy Assistant Attorney General,
thegiposlitionahe had-held prior to his nomination. As head of OLC, Bradbury became
responSible for briefing?members?of Congress on OLC?slegal analyses concerning the
well as oii?theiPreSidential Authorizations. Bradbury?s access to these
ri" ts and'the officials responsible fordrafting them provided. him signi?cant

 

 

b1,
b3,
b7E

 

 

 

 

 

As noted abeve, Judge K011ar?K0telly was made aware on March 14,
20:04, that the Mar-ch 11 Authorization had been signed by the President

 

  
  

 

but-chad not been certi?ed-as to form and legality by the Justiee
Department, On Marcih 18:, 2004, Goldsmith, Philb?in, Baker, and Gonzales
met  Judge Kollar-Kote?y to further brief her on the status ofthe-
pregnann :AceOrdingto an internal OLE) memorandum, they advised her
that forthcoming. legal o?piniOns. from OLC would alley her concerns about
the use informatiOn in MBA app'liCations-EQQ'

 

.. The}  reVi'ewed a .rlla?dwpitte'n l'etter'frOm-JUdge Kallar?Kotelly to.-
Bee d. to have been. written ji?ust after-the;
initiation "3 Qmandat?edinsthe' 19,2004,
Mod?ificatio 1. ."Baker told-us that he; handwritten letter should bB-?ViBWstaS?
angin'formal draft designed to Convey udge- Kolliar?Kotelly?s preliminary
understanding of the issues raised by  changes to the Stellar 
program, In theiletter, Judge Kollaerotelly reiterated. her position that.
StellarrWind?derived information should be excluded from PISA
applications, writing, ?so there is no misunderstanding, It will not Sign a,
PISA-application which Contains any information derived from and/or
Obtained fitomrithe. {Stellar Wind]g program i? including application?s  a:
'StellarWind: tip ?was the sole or principal factor in starting an investigation
 of the agencies, evenfif the inVestiglation was conducted
independently of the tip {from [Stellar Windl.? Judge Kollar~Kote11y also
requested, as .a precondition to her agreeing?to Sign applicatiOns in the
filters, that clarify in writingfits proposal for reviewing. FISA
applications to ensure that all Stellar Wind?derived information had been
exalud?e'gd. Baker told us that he had a lot of ?verbal back and forth? with
to eXplain scrubbing procedures.

  

 

 

 

 
  

ese legal opinions, which addressed the legality of 
?were' provided. toJudge Kollar?Kotelly in late March and

 

 



 of information- derived indirectly froj



 

 

 

 
   

Ln 2004,. OLG completed a dralt memorandum for Baker-

entitled-?11313?or?Diselosure of Certain Stellar Wind Information in-

  

Applications U?nd?ef?FlSA.? This-.memorandurn address -eine?1uso 

75

 
   
 

  

?205?

 Kollar?Kotelly with a copy of its 'drt legal

    
  

   
    

 

30?? This argument is discussed below in connection with Goldsmith?s May 6, 200.4,
legalanalysis. (U)

205 With respect to 7 the memOrandum stated that the
Department did not bali'eVe information was subject to any
constitutional restraints or statutory restrictions, but that ?Me the extent Judge
Kel?l?ar-Ketelly has concerns about those conclusions, we note that the analysis in this
memorandum independently demostrates thathere are no legal restrictions on the use of
informa-tiOn indirectly derived fro 7  tippers in PISA applications.?

     

 

The draft memorandum did not address inclusion in FISA applications of
information derived directly from the program because OIPR had s?Llccessfuily managed to
address Judge Kollar?Kotelly?s order to exclude such information.

 

 

 

6. April 

General Ashcroft?s doctor-s 'c?leared' him to resume his duties
as?At?m-ney General as of March 31. Cor-nay a?vised'Ayr?es in a Mamba-0.,
 memQ'randum- that as on March 31, the Attorney General
was no. .l?on'gerf'fabsent or di?sabied? Within the meaning of 28 
 jthat-a?ndf' ?that time Gamay Gould 110' 10nger :eXerc?ise-th?e duties of the
Giffice {of pursuant. tojit?he statute. Agco?py of the
.Inem?raiidumgwas sent 'to: White. H'ousefCounSeleOnzaJeS arid othe?u? senior
Department Officials. (U)

0.1-1 April 2004?, President Bush. signed, and Gonzales certifiedas-to
a second Modification of the nt'ial
astion. This modi?catign addressed only 

of the Stellar Windiprogram,

  
   

     

 

 
  
    
   

1?S'tandaitd; ie- e'enireyedi to

 Yfai'iltl??iiZedT

  Modifieatieins
mate? ZFBIeInpleyees
onto the ?eld.

   
   

    
  

   

 

   
 

    
    
  

   

 
 

       

  
 

  
 

     

mm

anti-enlaseque  . 
'19

   .. . .i ..  theme-a
tesponSibleth

 3 glans were comm--


Iari? .indinforme?ci

 

I. A farmer Unit Chief in the CommuniCations Analysis Unit (CAU)
withintheFBlT?s Communications Exploitation Section. of the 
Cionntejrterr Division told usgh'e became-aware that at- some pointthe-

 Stellar Wind Was narrowed to include only 
Said this was passed along to him
   ., .   eith - -   neatly meetingi?with
NSA representatives. He sat a?c?tiee was ?taken
 the-NSA. Requests?foir? 

 RM 1? the the: numbers not Lessee-iated with
rejected "by: the NSA {as outside the ?scopefof the.

 
    
  
    
 
  
 
   

      

         

     

.NSALcalled?Team told us that ,e
analys?i?s-chfleunder the pregram  '3
recalled  .  

   
 

  

ii" at when the FBI ,1fequeste'd that the. NSA Collect
Information on; a particular-- nun-linen the closely analyzed: the number
 request-ed supporting "information from the FBI before querying the
Stellar Wind database. This supervisor also Stated that the SA 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
appropriatepersonnel during the daily ?all hands meetings.?

8. Of?ce of Legal Counsel. Assesses Compliance
with New (De?ection Standards 

   

Goldsmith told us that during. the week of'Mar'ch 29, 2004Stellar Wind program to ensure that the
r. was being. conducted in accordance with



  

 
 

 

 

:Geld?srrli?a said that while. resources were notsaVailablewtor-condue't a.
?prefe'ssio?alt audit, he ViSited the NSA ah  . "i 
thelegal parameters for queryin .   I I 
wh?iehta?s discussed; aboVe required a Showmgof reasonable-artieulaible
.sll?piCiQn that-the-target belonged- to a group. that was engaged in:
international terrorism?og Goldsmith told the 01G that as part of the
?3 ed the new collection

  
   

 
 

     
   

 

115- 12004. Goldsmith: reportedthe resul-tsof his  
lfor?Operatiorisrin the

 



General Counsel at the time.

 

9. May 5, 2004, Presidential Authorization 

As noted above, the March 11, 2004, Presidential Authorization, as
modified, 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 modifications that

 

 

{endured it,   5 to form andlagality .
   3' -r 

 

   

  The;   ,Auth o'riza?tion I:

  
 
   
 


tired-tha-

with; minor variations, th e- collection,standardssand other language:
set? fox-thin the May 5, 2004:? Presidential Autharizatmn remained
  of the. Subsequt??t Autllol?izatiens.31 1

10? May 6,.2004,.0m Memorandum 1g 

 

On May 6, 2004, Goldsmith, -.comp1?eted ardviscd OLC?memoranduI-n
mi  'Iegalify cf the Stellar The .l?GS?page document- Stated
that it for the Attornay'General in: weapons: 11.02 
OLC- ?t'p undertake a thorough reexamination of the stellar Wind pregam-
ass-it- i?svcurren?y operated e?on?-rm that 'tl'leactionsthat the Pre?ide?-t has
directed the Dep?artment?of Defense to undertake thmugh' the National.

Sacm'ity Agency are lawful?? 

  

The memorandum traogd thenhistmy of the [program and analyzed: the
legsjitypf?eaw. of th? three co?ee?oniibasketsin light =0f applicable statutes,
 "Order?src?ases, and chsti?tutional provision-s.

   

 

?0 als'o dropped the language describing the legal bases on
which the President relied in ordering the continuation of the program in the: March '11,
2,004 Authorizaticm - 

    

 

 

gfl?hememerandum neted that Section 1:811,
presidingiith=at die. Pro? sidth ?may authorize electronic: sures-illance withOut
court order . . toacquire.foreilgr1 intelligence- mfonnetion for a. period not
toaexoeed- calendar days following .afdeolatatiOIl ofwarbyCongress,?
made?itsclear that EISAexpressly addresses electronic. surveill?aheeduring
WartimeQ-QIQ? The memorandum stated that the Authorization-forUse-of 

Force (MJMF) passed by Congress Shortly after the. attacks. or

September 20011, genre the Prestdent authority to use. 

abroad; tall? necessary analappropriate tenet-2;? including signals

intelligencecapabilities, to prevent. future acts lot-international.terrorism
eigenstates United States. According. to the memorandum, the Was.
properly read? as an express authorization to. conduct targeted electronic
surveillance against a1 Q'aecla and its affiliates, the entities reSponsible for
attaekmgithc United States. - -

   

Thememmandum noted that the legislative, history of FI-SA-ihdiCates?
that the 15~day window Was ?thought sufficient for the President to sect-ire"
legislationle'asiilg the restrictions of for the-con?ict at hand? Quoting
 3:4, reprinted 4048,. 4063. 
intend thatthis- period will allow time for Consideration of
 amendment to: this act that may :be. appropriate dm?ing. a Wattime'
emeligency?i-ll Accordingt?o' the OLCsmemorandu-m, ?The Congressional
Authorizationfunctions. as precisely such legislation: it iszge'rnergency
legislationzpassed to address a specific armed?con?ict and expressly
designed to- authorize Whatever military actions the Executive'- deems
appropriate-to safeguard the United States.? - i 

The memorandum-concluded that at a minimum the AUMF'mad'e the,
applications .F-ISA in a wartime context suf?bien?y ambiguous- that the
dostr'in'e' of? ooh-stittztiOnal avoidanceproperly applied to avoid a con?ict
betWeen and the presid'entially authorized: Stellar Wind? program.
Alternatively, the memorandum argued that FISA, as. applied in the
particular ?circums?tanCes of a President directing surveillance of the enemy
to. pretrth future attacks upon the nation, represented an unconstitutional
infringement on. the President?s Article II CommanderwimChief powers.

WW

 

 

?2 As discussed in section I of this chapter, the legal implications of thislprovision
'was not. addressed inthe memoranda John Yoo had drafted in sUpport of the

program in late 2001. 

 

 

 

 

 

  
 
  

 
   

memorandum discussedtiie  "u  

ram. To determine Whether
I violated the Fourth
Amendmerlt?sjp searches, the memorandum
analyzed whether the importance of the government?s interest in this
colleetion outweighed. the individual privacy interests at stake. Citing
  dings Supreme Court opinions, the Federalist
Papers, and congressional testimony, the memorandum
cuticle I dthat the government?s overwhelminginterest in detecting and
thwarting further al- Qaeda attacks is easily sufficient to make reasonable
the intrusion into privacy involved in intercepting selected
communications,? The memorandum noted that the weight of the

 

     
     

 

 

 

 

gOVeifnment?S' interest in this regardeould change-overtime ifithr-ea?it'

from  ?QiaeclaWere-deemed to recede.

 

The memorandum also analysed'te?lepho no? and e?mail me ta data
collection under the Fourth Amendment. The memorandeUm. concluded,
.basedon the Supreme Court?s holding in Smith. Maryland; 44211.8. 735-,
742? (212979;), that there is 1:10 legitimate 'Sxp'eietation?o?pfivecy'in the numbers
dials d-ito- pistes T't'elephone calls. Referring to cases :Iholdi-n that no
expectation attached. to the address. information on, either letter
 or, e'r?mail, thexmemorandum -.c0If1C1Uded-that9no Fourth Amendment-
privaeyinterests were hnpli?Cate-d in the collection of earn-ail meta data.

 
 

?r'no st comprehensive

 

 sum~ the Mav? ?6 memorandum was ?t

.4.

   
  

 

 

Ill-ll". DIG Analysis (U)

A. Department?szAceess to and Legal ReView? of Stellar Wind.
Program Through May 2004 We}

The Justice Department?s access to the Stellar Wind program was
controlled by the White House, and Gonzales told the DIS that the President
decided whether non~0perational personnel, including Department lawyers,
could he read into the program. Department and FBI'offieials 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 proeess for non-operational of?cials. In
Contrast, according to the operational personnel at the SA, CIA, and
the FBI were read into the program on the anthority of the NSA Director,
who at some point delegated this authority to the Stellar ?Wind?Program

Manager. 

 

 

 

Various. officials we ii-ntervieWed about the iiSsue. uniformly agreed that

I the white nous-e songh-tfto Strictly limitsoverall'iaecess to theiStell?ar Wind
 We belieVe that this policy was applied at: the Department in an 

restrictive manner prior to March:20.04, and. was. detrimental
to the?DepartmentFS role in the operation of the program through. that
period; We; also believe that. Attorney General Achcroft, as head ef'th'e
Department, Was r.esponsible for See-king "to-ensure thatthic Diepertrnent had
adequate attorney resources. thorough accurate review of
the legality- of the program. Because A.sher0ft didinot agree to he. 
interviewed for this investigation, we were unable to determine the extent of
his efforts-to pressthe White House to read. in additional Department
of?cials between the program?s inception in October 2001 and the critical

events- (if March. 2004. 

In Chapter Three we described how early 
inVolvement  Wind program was limited to the participation of
only three attorneys Attorney eneral Ashcroft, OLC Deputy Assistant
Attorney General JohnYoo, and Counsel 'forlntelli'genCe Policy'James
Bakerzzl?- Working alone, Y'oo drafted several legal merner'and'a in; 200:1 {and
2002 advismg the l-Atto-rney General and the White House that? the program
was legally supported, In reliance on race advice, Afterney'G?Il?ral
Ashcroft certified- the legality'of the Presidential Authorizations to implement:
the      

     

BecaHSe worked alone, his legal .analysis was not reviewed by
otherattorneys, either? in OLC or elsewhere-in the Department.217 Even

 

915 Counsel for Intelligence Policy armies-Baker was read into the program in either
late 2001 or January-2002. But, Baker appears to have been read in only becausehe 
inadvertently caine acress informatioii that suggested-Such a program existed, Whil'eB'aker'
had involvement in Several aspects of the program, he hadino-involvem?ent 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-fly as a national Security counselor to
Ashcroft, also was read into. Stellar Wind at the inception of the program; However, Levin
only served for. 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 official. We therefore consider Levin to be an.

FBI readwin, not a Department read?in. 

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 werenunable 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 (T SCI) related to the Stella-r 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 200.1 to 2003 period, and
these memoranda Were reviewed by another OL-C Deputy Assistant Attorney General

(Cont?cl.)

 

 

when Jay Bybee bee-amethe. Assistant Attorney General-in November
2001,  was, therefore Yeo?s. supervisor, Bybeegwas not read into the
program?? Bybee told us. he also was unaWare- that Yoo was, providing
advice to the Attorney White Housean the legal-basis. to
support the program. -n 

even befOre Patrick Phizlbin voicedhisiniitial concerns
with Yoo?stanaly?sis in. 2008, the c'ircurnst?ances in .2001 and-2002? plainly
Called: for to betapplied?tothe legal review
of the program anditih?at it was the Attorney General?_s: responsibility to be
aware-bf this need and to take steps to address it. 'M?Oreover, "beCauSe
Ashcroft met frequently with the President on national..security matters, he
Would have been wellepositioned to request additional legal. resources if he

believed they were necessaiy. 

The facts suggest that Ashcroft had some .awarienessxand concern that
Yoo- was Working On the legal justification for the Stellar Wind program
Without  Department assistance or Oversight, and pessiny wast-advising
the; White House irectly of his?ifindlings.. Based on accounts of the incident
in Ashcroft?s hospital room in March 2004, Ashcroft made specific
complaints to Gonzales and Card about insuffioi'ent legal resources at the 
Department and that the Department had been ?cutout of the whole affair..?
Hehad also eigpressed frustration to Comey months earlier about?being ?in
a box?  Yoo. Further, according-to Goldsmith, when Goldsmith firSt
intervieWed for the position of Assistant Attorney General for OLE in 2003,
Ashcroft andhis Chief of Staff alluded to concerns overseeing kept informed
the Office of Legal Counsel. was Working on and the importanCe of
keeping the Attorney General _?in the loop.? Weralso 
NoVember 2, 2001, memorandum to Asher-ft indicated of
the highly Sensitive nature of this subject and. the time pressures involved,
this memorandum has not undergone the usual editing andreview process
for opinions that issue-from our Office 

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,

 

(Philbini-and approved by the OLC Assistant Attorney General (Bybee). The detainee
interrogation program also was classified as 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 allotved to supervise Yoo?s work drafting legal
memoranda cencerning a detainee interrogation program during the same time period.

 

 

 

 

Welcannot assume that any requests ?byAshcroft for additional attorney
readein's' wouldihav'e been. grantedby the White House. Gonzales" toldus
 AShci?Ofi; had requested that Deputy Attorney General Larry Thomp?S?on
and-Ashcroftb "Chief cf Staff-David'Ayre's be read in. HoWZever, neither-
request was apprOVed.919 Gonzales stated that hesdid not recall 
re?ne-sting? additional read?ins beyOnd Thompson  Ayres. 

 analyzing-the read~insituation at the Department during 'Yoo?s
 also. Considered? that Ashcroft certified the: programas to its
.-legalityu=each time? the program came up for renewal, and did so at a time
When iY'ooi?salegial advice Was: the- only Department, guidanCe available
conserning the. program?sle?gality. 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 recertifications the
PreSidenti-al Authorizations. during- this period. As noted in Chapter Three,
(Gonzales told. us that it was up to the Attorney General to_decide.how to
 legal obligations as Attorney General, and that if Asheroft
believed:moreirzattorneys were needed for-this purpose, he could-haVe asked
the? President tolapprove additional Department 're'ad~ins. Gonzales also told-
;us that As?h?c-ro17t7s Continued certifications of the Presidential Authorizations
supported} Gonzalesis belief that Ashcroft was satisfied with the quality of
 :legal-adVice~ he was receiving at the time within the Department



?There is evidence as well that Gonzales, as White He?u'se Counsel, ?was
satiSfi'e'dWith Yeo?s legal memoranda supporting the. program. Gonzales
?told usth?at although. he did not believe Yen?s first two memorand?a full}r
addressed-theWhite House?s understand-ingof the Stellar Wind program,
Gonzales believed that they described as lawful activities-that were bmader
than thosevcani?ied out under Stellar Wind, and that Yoo"s memoranda 

th'erefOre ?coIVered'? the program.220 WW 

   

 

91" 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

     
 

  
   

  

to be read int.
wins. 

2-2.0 We were troubled by Gonzales?s suggestion that Yoois men'i?oranda covered the
program because the memoranda deter-mined 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'deeme?d acceptable by the "client" [in this case
the White House), would encourage the Office of Legal Counsel to draft broad and imprecise

(Cont?d.)

therized these read

 

 

However,',. even apart from the limited number of Department read?ins,
we believe that the White House imposed execs-sitier strict controls over
.acces?sitovthe pregram in other ways that were-detrimental to the
Department?s ability to provide the:White House with the soundest possible-
?legail' advice, For instance, we found no indication that Yoo coordinated {his
legal analysis with the NSA. According: to Michael'Hiayd'en, the Director (of
the NSA when Stellar  began, the  relied on its OffiCe of General
Cour-islelk  not the Departrnent of Justice, for ,adviICesas to the legalitylgof.
the program when it was created. Hewever, we fOu?nd that the NSA?s-?Offiee
of "General Counsel :did not coordinate its .legaladviCe with the Department,
and even as late asv2003 the NSA General. Counsel was prevented, by the
WhitetaHouse from reviewing the .Departrnentis legal Opinions on the
program?21 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 I-?I?Ouse officials when Stellar Wind was. first conceived. In
addition, Addington instructed Philbin not to discussthe program with
Bakerpwhovas; Counsel for Intelligence {Policy was responsible for
representing the goVernment before the FISA Court.222 

(We believe that that White House should have allotted 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 first being formulated in late 2001s Such interaction between
the Department and other Executive agencies is a mainstay of traditional
pfactice, and we believe its absencewh'ere contributed to factual errOrs
regarding the operation of the program; 

Although, we could not determine exactly why Yoo remained the 01113:
Department attorney assigned to assessthe program?s legality from 2001
until his departure in May 2003,, we discuSs below our belief that this
practice represented an extraordinaiy and inappropriate departure from
traditional review andoversight prOcedures and resulted in
significant 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 Office 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. (17/ #994318?;

332 Pliilbin told the OIG that he spoke with Baker about the program despite
Addington?s instruction not to. (U)

 

 

 

and. legality; When Goldsmith. became the OLD Assistant Attomeyceneral

'ingOC?COber 200.3, pressed Addington to have Goldsmith read in, and

.Gold'smi?thvbecame the first head of to- be read into the program! As
predecessor Jay Bybee?. Was never read? into the program.

 

- Thus, by the end totalof only-5 Department of?cials-w Yoo?,
Ashcroft, Baker, Philbin,, and Goldsmith had been read into Stellar -Win-cil;
arid Elsi-?shown in Chart 4.. 1 below, we determined-?iatzmvany

?Othef?incglit??i?dual's through 3 . - .  
'hrou -=the Same eriod -.

   

   

     
   

The assignment of only one Department attorney, John Yoo, to
cendUCt 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 OLE) to be so inaccurate and incomplete

 

1?23 This t' 'ble was derived from NSA read?in information. Justice Department
personnel who were read into Stellar Wind in 20 06. (U  

 
 

 

 

?tdjbe mgardedias not severing key aspects ofithe Stellar Wind: I
 complexnature of the Program from: both a t?'?hnica?l
and 16331 per-Speci?c; Coupled, with the;.fact that he 'Wai?s'wOrkingjalone, it
.WaS-c?th sutprismg-that Vedas analysis containedmaccumcies
ail-id. 'Gmitt?dC??C?l .givbri ?the Measure toilgenerate a
off-he program:iimPlementa?on. 
  *IiOt' Ghairigeior iri??l?ujd'e ?a accurateidesc?pitionof 
rim-Ming ape-ration Over the course of tenure. With-then 

 
       
   
       

O?nthe program) 
Ph?'bi? they Characterized as sggripu__ '90 
31 555"    '3de33- failure told?scrib 

bemgconducted'by - 
1? . I, toas'sess 'the' legality OfthiS?a?d
"Vities asx-thejy Were: cutiby  NS-A,

    
 
 

     
 

 

      
    

7 ally .lboth. Gdl?dsmith: and :Philbingstated  

 

    
 

:oharacteriZed the Cellectio and thus their legal advice was-albased-
warmers-closely as edit-he factual. operation :of the. programws? -

Rhilbin discovered that Yoo?s assertion
that the PreSid?th?had' broad authority to conduct electronic: Surveillance.
dirtiest a  pursuant to his Commander?in?thef'powers under.
II of the constitution, particularly during War-time, never addressed?
-thtiiFISAprovision-that expressly addressed electronic surveillance fdlloWin-g
aiformal. declaration of war. Seeso 1811. Goldsmith also critieized.
Yes-is1egalx-memoranda "for" failing to Support Yoo"s aggresSive-Artiole 
ZGomander?in?l?ef theory with a fully ?deveIOped separation of powers
analysis, and instead offering only sweeping conclusions. As an example,
hit-ed Yoo?s assertion that reading FISA to. he the ?errolusi've
statutory-'means for.c?onduotingeleotronic surveillance for foreign
  to?an ?unconstitutional infringement on the
II -authorities.?225 Moreover, noted Goldsmith, Yea.
beaded-from his separationeofepoWers discussion any analysis of haw-the
Young?StoWn Steel?Seizure Caseia seminal Supreme d?ecision?on the
distribution?off governmental powers between the Executive and Legislative
 wartime, Would affth  legality of the. President?sliaetions-

.)

Wifh?re'spect to Stellar Willd.227'
in reliance: on Yoo?s adv-ice, the Attorney General certi?ed the prograjn
toiforrn? and legality? some 20 times-before Y-oo?s analysis was 
determined to :ibe??awed by hissuCCesso-rs in- OM) and by attorneys in the:
Office of the'Deputy Attorney General. We agree 1?w?v?it?l?l many of the, criti'oisms-
officials regarding the practice of allowing single:
Department attorney to develop thel'egal justi?cation for the program

   

 
    

erllance for foreign-intelligence urposes, Id.

927 The Department?s-Office of Professional Responsibility (ORR) intendsto 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 co?ncerni?ng?the detainee interrogation program violated standards of professional

Cbnduct 

 

 

 

itsrearly Stage of operation. We Summarize these Criticisms below.

described as ?Crazy? the assignment of
  13.6qu Assistant Attorney General to providclegal-advice to-vthe
White House WithOutthe knowledge oraconCu-rrence 'of? the Senatemon?rmed

Assistant-Attorney General? for-0L6, who is. aecouritable fer the: legal.

positions? taken  theoffice. 

Goldsmith sai? that, not. a single. .e?riti?clalcye reviewed Yoo?s work on a
program: that Goldsmith described as ??ying in of the. .con'ventioinal

understanding of the law at the time. Goldsmith legal

memorand?a did not include facts about how the S'tellar'Wind program
operated in practice, and he surmised that Yoo instead might have ?keyed
off? the Presidential Authorizations rather than Sms- actual collection.
practises in detreloping his analysis Goldsmithal?sosaid it was ?insane?
that ?oo?s? memoranda were not shared-With the NSA. Goldsmith said that
had the. NSA reviewed the-sememor-anda YoO?sfa?ure to accurately describe:
the nature and scope of the Collection by the NSA  the resulting
rI"mifs1"r1?at?Ch? bet'Ween the actual praCtiCerand. the?wording. of. the'Presidential
Authorizations might have been detected earlier. .. 7 . 1

Similarly, Daniel: Levin, who was onexof the first FBI officials to be
readsinto Stellar Wind and who would later become Acting Assistant
AttOrney General for upon GoldiSmi?th.?s departure in June 2004:,
criticized allowing-a single attorney to be the sole voice of the OLC
concierningga program such asStella?r Wind. Levin" stated that OLC has a
spjecialrole at the Department and within the government, esecially with.
?ihighly?sec?ret programs where opiniOns may never See, the light of day.?
Under 5th circumstances, according to Levin, it is very difficult notto say
?yes? to the White H'ouSe client in the face of. national security
threats; Levin stated that unlike situationswhere a court pl?acesilimitations'
on the positions the government may take, there are no such limitations
when considers a position that will. remain secret, and it is easier to be
.more aggressive and ?cut some corners? under such circumstances.

WW

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
benefited 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. 

 

 

 

Weqhelieve that: Goldsmithls and. Levin'7s comments concerning-the,
seerer otStellar Wind are especially relevant to the need: for. legally and
.?faCtuallY analysis with respect to classified nationalseeurity
programs. Because programs like Stellar Wrind'are not subj eat to. the usual
re?terna?l Checksjand "balances on Executive authority, OUTS advisoryrole is
particularly-critic-a-ll'to the Enecutive'h understanding of potential statutory-
 its actions. 

 

1 Deputy Attorney General ?Comey also criticized the: decision to, allow: a?
single; 136198011 to asseSS the legality of the program on-behalf of the
Department. Gemey' told us: that Goldsmith had onCe aptly described the
Yoo Situation to him as ?the perfect storm? ingwhich: the following'factors,
eonv?erged?: the terroriSt attacks of September 11,2001; a ?brilliant guy? at
 who was? ?an aggressive adVOcate fer executive power?; and
 House ?determined to restore eXecutive power;? expressed a
degree-of sympathy for Yoo, noting the eXtraOrdinary 'SituatiOn into which
been placed. .Comey also observed that the response to
September 11 the policy burden on laWyers, who were
now looked: to by others fer guidance as: to,whatscou-nterterrorism activities
within: the bounds oflthe'law, HoWever, Conley said that he. believed
Whiteg?ouse officials ?got what they ordered? by asking Yoo for opinions and
reatricting' thenumbercf persOns: with access to the program or the
- - 

Attorney General Ashcroft declined to be in our review,.
and we were thusunable. to determine what his views were on the
assignment of 'Yoo alone to conduct? the legal review of the program,
HQWever, as..noted above, witness accounts of his statements concerning the
Ydo; situation leave little. doubt. that Ashcroft was plainly upset with. the
White House for putting him ?in a box? with Yoo. Acc0rding to Goldsmith.
?and Philbiln, Ashcroft was direct about his grievanceswhen Gonzales and
card came to see him in thehos'pital on March 10, 2004', including
complaining that Ashcroft?s Chief of Staff and until recently the Deputy
Attorney General. had not been allo I .e a. to the program, and
that he found it ?very troubling tha eoplc 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 insufficient
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 thenation?al sectirity portfolio
whenhe first joined the OLC in July 2001, several months before the attacks of
September 1 1, 2001, and the inception of Stellar Wind. (U H666)

 

 

7 Wesought to obtain Yoo?s and the White House?sperspective on his
sieleostiona'sthe 5016: Justice Departmentattoirney to be read into Stellar
Wind to previde advice on the legaliw of the-program. We were notable to
interyiew Yoo, who declined our request, or Ad'din-gton and Card, who did

not respond. to our requests. 

TheOlG asked Gonzales. about how the White Houae determined?who-
in the: Department could be. read into the. program, butch 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 wasnecessary 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 operatiOHal 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 ?hate opinions? about the program. Yet, Gonzales also
stressed to us that he weldome?d the Department?s reaSSessment of Yoo?s
opinions and encouraged Goldsmith and Philbin to reexamine the legal

basis for the program in 2003 and 2004.229 

We-th-ink the proposition that the participation. of 'Departrnent
attorneys-toanalyze the legality of a pregram 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
asa sufficient number of operational personnel were read into the program
to: assure its proper technical implementation, we think as many attorneys
as-ne'CCSSary 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
benefited 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 deficiencies 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 firmer legal footing under PISA, allowed the Department more
effiCiently to ?scru Stellar Wind?derived information in FISA applications,

 

229 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. 

 

 

   

 

 

I and improved the handling- iof-Sjtellar Wind?relateddiscovery issues in

international terrorism. presecutions

:.Second,. iwe'do not believe: that reading? in a. few additional Department

attorneysduring the first 2 yearsoi'f the program would have, jeopardized

national- security as Gonzales, espeCial?ly given the hundreds of
operational- Who. were: cleared into-the program during the Same 
period (se?e1'Ch'art. 4.1).  fact,;as notedabove, we think-thehi?ghly classified-
natnre. oft-he program, rather than constituting-an argument for limiting the
0L0 read?"ins to a single attorney, made the. need for careful analysis and
review-Within the Department and by the :NSA-on'ly more Compelling.

In sum, we concluded that the departure- from established OLCT and}
Department practices resulted in legal. opinions to support the program that
were-?laterdetermiIIEd to be?awed. We believe the Slii?iCt?_eontrol Over?the
Department?s access to theprogram undermined. the role of-the Department
tole?nsure- the zl'egalinr of ?Exeeut?iVe Branch- set-ions?,  as discuSSed below,
co- tributed to.:theaMaIeh 2004 crisis that nearly resulted'in the mass

resignation of the Department?s leadership. 

We resentmend thatWhen 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 Presidentand Should aggressively seek
additional resources if they. are found to be insuf?cient. believe that
the Wihite-iI-?louSe shOuld' all?o'wthe Department ausuf?cient number of
read?ins When requested, consistent with national security considerations,
to ensure that sensitive programs receive afull 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
hO'Spita'lized 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
certification 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 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

 

 

 legalitytutu-sapeets-tof?the Stellar Win-d program.  particular 
Phitbin "had: ads ?clear that: the Basement heartened :t 
 

      
 

AfterAttomey General Reheroft was hospitalized. and unable: to ful?ll
his  the?Wh-?tte House was informed.  ?tters-er Gamers-'1'
Comey'had aSSumed the Attorney Genera-1?s responsibilities; warms-d that
 assert-an by Somalia the White House at 'thetime that they had not b?eEn:
informed of the situation was the-"facts. In
particular-,Gonizales later acknowledged that heWas estate that Carney was
acting as the AttorneyGeneral-F31 (U)

Before the PreSidential Authorization was Set to BX-pire: on March 11,

was exercising the powers of the AttOrney-Generalatthe time,
'Offic?ials. in the White House including Vice President Cheney. and

 Hou?se that the Justice- Departmeht could not
recerti'fy-L the legality ofthe program asitWas presently-awarding, The White
Hon-serdisagreed with the Justice Department?s 10,
al-meeting?of eight congressional leaders to brief "them on
the" Justiw-?Depart?rnent?s Seemingly Sudden relurztance' to rectal-tit? the
program and On the need to continue theprogram. 'TheWhite: House-did
not  anycne'. tram the Department to this.? brie?ng- to describe: the basis
for. jits-gadVice-about the legality of the program, 1101?  itrinfo-rm-ther

Department ofi-ts intention to _h01d.the-rneeting.932 3' 

 

Following. this briefing, Gonzales andiCard went, tether hospital to ask
Attorney General Ashcroft, who was in the inten;sive care unit recovering

 

330 Our Conclusion'that Goldsmith advised Gonzales and Addington of the
Department?s concerns in Decembm' 2003 'is-supported byhi?s contemporaneous notes. of
these events. In addition; although Gjonzal'es told us' that the ?rst tiine he recalledfhearin?g
of these concerns in detail Was. in early M'arch'2004, not diapnte that Golds'znith had
first begun to advise him of the Department?s general Concerns months earlier; (U

231 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. Oomey was
the acting Attorney General is probably somethingl knew of.? (U)

932 On the advice of. White House counsel, Genzales declined to provide a reason to
the OIG why the Department was not asked to participate in the briefing. EIoweVer, when
Gonzales-commented on a draft ofthis report, he stated that the purpose of the meeting?
Wasto inform the cong?ressionall that the D'ea'rtme 't a - -
basis; for aspects of the program,
an? that a legislative stated?tlffat the put-posts 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 justsuch a legislative ?fut.?

   
      
    

I I

 

 

 

. from surgeryand aCCOrd-ing to. winiesses' appear?e?d. heavily. ,mediCated, to
certify'the-program, notwithstanding C'Onleyis state oppdSit-ion. Yet, they?
did notnotifycomey or anyone elsc in the "Department that they. intended to.
take this action. Their- attempt to hairs Ashcroft frecertify? theprogram 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 ~?G?omey ?Was- (U)

Gonzalesstated that even if he knew that Ashcroft was aware .f
Comeyis opposition to recerti'fyingthe program, Gonzales would still have
wanted to?s?peatk with Ashcroft because he believed Ashcroft still retained-
the authoriw tocertify the program- Gonzales testified before-the: Senate
JudiciaryCommittee in July 2007 that although there Was concern over
Ashcroft-?3?condition, ?We would not have .soughtnor did we intend toget
anyapproval from General Ashcroft if in fact he. wasn?t fully competent to
make that decision 3? 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?ca-n make this decision, and I?m going to
makethis decision-? (U) 

We found this explanation and the way theWhite House handled the
.diSpute to be troubling. Rather, we agree Wit-h Director Mueller?s
observation, . as recorded: in his program log 'ifollowingfhis.-meeting: with card
on March. 11, 2004, that die-failure to have Department of Justice
representatioii at the congressional briefing and the: attempt to have
Ashcroft certify the Authorization by overruling Comey ?gave the-strong
percolation 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.? 

Ata minimum, we would have expected the White House to alert
cemeydirectly that. it planned to brief the congressional leaders on the
Department?s position and that it intended to seek Ashcroft?s approval of the
prOgraIn despite Comey and Goldsmith?s stated legal position against
continuing certain activities under the program. Instead, White House
officials brie-fed. congressional leaders and sought to have Attorney General
Ashcroft recertify the program from his hospital bed without any notice to
Corney' or anyone else at the Department. We believe these actions gave the
appearance of an ?end run? around the ranking Justice Department official

with whom they disagreed. 

C. Recertifieation of the Presidential Authorization and.
Modi?cation of the Program (U)

As described in this chapter, the Department had n'otified Gonzales
and Addington of its concerns about the legality of aspects of the program

 

 

for --seVe-ra15 months. In facet; the White
 in 201103 and more. empha?ca?y?invaserie SiiOf xmfeetingsin
  that it believedythat aspects'of. the ?gprogr.ani' ,c?ouldnot be: legally
s?npperted?in: their-exis?ngiferm; Geniey and Goldsmithywereclear ?in their?
advi-c?etothe-President otherWhi?  - 'At't-h'  "t '1 -
A hcrof deep cOnc?er?   7 
and ?toidsGonZales and Card that-hea-snpported the: peei?on dfzhi's
wherein; es. We believe" that Ashcroft acted admirably under arduous
    

   

   

   

     

 

  
  

  

~=espiteathe legal geoncerns uniformly by-senior-Diepartrnent
goflJusti'ce leaders! the White Honse, through White. Counsel
Gonzales, reoe'rtified the Authorizatioii, allowing-the program to ?Continue-
substantively unchanged. 4 a

Only- after Mueller, Conley,  other senior Department and FBI
officials ?rnade known theirintentrto resign if the White HousecentinIIecl'Tthe
 unchanged, despite the Department?s conclus'i?on that arSpeets of
the'program could not. be legally supported, :did the President? direct that the
issue'he-res'olved,  the program-:be-Inodiified to address the Departmentis?
legal 'eoncerns-.. Because We were unable: to .jnterVieW key White. House 
officials, we Could not determine for Certain What causesthe White House to
changeits position?end modify therrosram, althoiIghi the. pro spect'rof?maes'
resignations :atthe Department- and the appears. to have been a
signifieantffacgtor inthi?s decision.233? According. to Conley, the'fPrlesident'
1?aiseclaxconcern that he was hearing aboutthe'se problems at the last.
minute", and the President thoughtit was not fair that he was: not told
earlier-about the Department?s legal. In fact, asComey?informed.
the President, the President?s staff had been. advised of these issues. ?for

weeks.? 

Finally, We believe that the Department and FBI officials Who resiSted
the pre3sure to recertify the Stellar Wind program because of?their belief
that aspects of the program Were not legally supportable acted cowageo'usly
and at significant professional risk. We believe that this action by
Department and FBI. officials particularly Ashcroft, Comey, Mueller,

 

233 For instance, we found it signi?cant that on March l6, 2004, White House
Counsel Gonzales, who had to make a recommendation. to the President about how c?onclusionthatlegal.

I

    
     

 
   

 

 

 

 

 Goldsmith? :Ph?binggand' "Bak?r e-Was- in:
standardsenf the; Justice 

  

feillgcotd the-?highest prqf?ssional

 

 

 

 

 

ottoman FWE 
:smttaa WIND Paoeagtiies=mgtitsmoo to Jet-Sn
AUTHORITY
(some soc-.4; cannon AUGUST got-p

this chapterwe examine the'transitibn in-stag?e-s of the Stella-1: Wind
program frompresidenti?al authority to FISA authority. We: first describe? the
FISACcurt?js approEVal in Ju71y2004 o?f ?7
acquire iforeigni intelligence informatiOn through the collei?t?icn cf bulk eema?
meta. data information). This application'WaS. ba?SGd?o?n-a legal
thery related to FISA?si-pen register and trap and trace device: provisions;
We the government?s suCceszul May 2006 application to the
 Court-forwan order to obtain bull: telephony meta data {basket 2
 Eby?the production of business records by certain
telecommumcations- carriers. We then describe the ?goVetnment?s'
interaction  the FISA court to plaCe- under FISA the government?s 
authority-to intercept the content of certain communication-s involving both
domestic and foreign telephone. numbers: and e-m'ail addresses (basket. 1
information), Fmally, We. summarize legislation enacted-in August 2007 
to amend: to address, among other concerns, thedif?cuity
in obtaining FISA authority for Content
a?s Weilas the gcvernment?s contention that certain. provisions of
FISAhad'failed to keep pace with changes in telecOmmunications
technology.  i 

 'sLMaii 'Mietainata Connection Under FISA 

 

 

 

Decisim to 5931?? Pen Register amt Trap and Tosca
Order from the FISA Court i 

    

 

 

.hilbin to us that he encountered some opposition to the FISA
approachafroni Counsel to the Vice President David Addiington, who argued
  Was unconstitutional and questioned the need to seek
its?auth'orization for e~mail meta data collection, iPhi'lbin said that he
.resp'cnded that obtaining an order from the Was: ?ironclad Safe.?
Bakerirecalled?attending atleast-one meeting at the White House with- White
Gonzales and Addington to discuss whether to seek an order
  based on pen register and trap and trace device
pretriasiiens(agPR Order.) and how the FISA Court should be approached
tecO'btainssfuch-uan order. Baker Stated that during the meeting Addington
 ?We areione bomb away from getting rid of this obnoxious Court.?
Baker"said?aAddington also stressed to him that there?i~s a lot riding on your

[Baker?s] relationship with this ?Court.? 

in contrast, Hayden told us that he did nothave any concerns about
transitioningthe bulk e?mail meta data collection to FISA authority and was
 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 r'n?eta?data analysis, he believes that involving an additional branch
(pf-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?1nail meta data
througha Order, but stated that there may have been individuals at
the White House who expressed concern that seeking the Order from the

- I 

    

 

 

 th at there; was concernfat the White House that I?lirig?j?ie-  
application :coiild lead to an Unauthorized disalos'u-re of the, .pingtam.

 

Brie?ng for Judge KoliaeKotelly (U)

 
 
 
   

 Baker, Philb'inl and Goldsmith met With Genz'al'es
and Addington- at the Whlt? ?Houjsefto disease how to approach Judge
Kalilari?Kotelly?licenserning the proposed application; and it 

7 se'ntation
Present

decided . to give her a 'abC}
 pro?ded to on
were?t?tornequeneral Ashcroft, Centr . actor George
Tenet, FBI Director Mueller, Hayden, Gonzales, AttOrney
General Goldsmith, 'Philbizl, Baker,_ and Director of the Terrorist Threat

  

      
  
     

  

epondi?ayci?n
d?e'sefibedi?the teohniealvaspeots of the? proposedbulkemaji "metaa'data
congestion, including how theinformation was? to be collected; .arohlive?d,
  minimized. This portion of the pre?sentati?On stressed that the
 reuiifed? the collection of meta=data  i 
capabilities through Contactzeh?ain-in - I I 
terrorist ?Communieations.234 Third, 'Philhi?n explained the government?s
legal argument that-PISA authorized the Court to approve a broad

 to collect email meta data under the statute?s pen register and
 traceprov-tsions. - 

    
  
 

Ii . II

    
  

 

s. The Application 

Philbin, Baker, and at least two Office of Legal Counsel attorneys
assumed primary responsibility for drafting the PR TT 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



   
   

I cellection "ac'tiVity and seco'ri
to cooperate; a declaration of NBA Director Hayden explaining the technical aspects of. the


 

 

Baker.  that Judge Keller-?Kotelly was given a ?read~ahead copy? 0f the
aplication, Since it was standard practice to give the FISA Court draft

applicatibes for review. 

   
      

?to

ed in 'a 
ainst the database to ientify

  
 

  

.   13793 4  and "to reveal
"ions 'e'r'atives. The resulting analytical.
products would then be tipped out. as leads to the FBI th 1 i ?nts of'

 telli?gence Community to-find. members of
erupt their activities, and prevent future te
 7  

        
  

 
   
   

rroris-t at ache. in the.

  

The Justice Department constructed its legal argument for this novel
use of pen register and trap and trace devices around traditional authorities
provided under Speci?cally, '50 authorizes the
Attemey 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 an}r 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 official seeking to use
the pen register and trap and trace devices covered by the application for purposes of 5
U-.S..C. 1842(c? i t' fD? Central Inteliigence Tenet describing the
threat posed by. a certification from Attorney
General Ashero '2 that the information?likely to be?Obtained from the pen register
and trap and tracedevices was relevant to an ongoing investigation to protect against
terrorism, as required by 50 0.3.0. 1842(c); and a memorandum of law and
fact in support- of the application. 

hasized: that Internet e?mai1 is one of the primary methods
 communicate. The memorandum of law? in s"

.3 ll

       

      

      

 

     

 

    

 

 

against international.terrorism .or clandestinel?intelligence
.aotiVitieIs, provided that such?investigatifo?a:Of?a United};}States

 'by?the ?firsti-rame?d?ientito? the Constitution  is
Fb?ingconducted? Federal 01f 'Itnvestiga-?on= uncle:
guidelines asithe; Attorney General. [approves pursuant to
Executive Order No.- 1233.3,017 arsuccessorwofder.  1i 3 

  

incorporatedthede?nitions of theftemis ?penregiLner?iand ?trap and

tracedevi?e? from?l-s  3:127; Thuss adapted? as the-definition 16f
ai?ipenuregister?

a device or process which records :or decodes dialing, muting,

addressingror signaling. infonnatign transmitted by an
instrument or facility from  ?a wire or electronic
umca??m transmit-ed: Wadi-id: however-that 611611
not-indude  contests? any
communication. is 

 

1:8 65 3127(3). FiSAai's'o-adOpte'd asde?n-ition-rofa?hrap and trace;
device?"

e?idevicewor process-Whichrcantures the incoming.electronic-or
other. which identify the originatingnumber or other
dining, and. information
reasonably likely to identify thevsotircez oflarWi-re .or electronic

Communication; providem ihOWeve-f, that?  ch. information shall:
:not'indud?e the Contents Of any communiCation. - 9 

15:3 

application the government argued that the propOSed-
collecltiOn of meta. data met. the requirements-of by noting that the
meta data sought comported with the ?dialing, routing, addressing, or
signaling information? type of data described in definitions of pen
registers and trap and trace devices, The government also noted that
nothing in these definitions required that the ?instrument? or ?facility? 011
which the device is placed carry communications of only a single user rather
than multiple users. 

The government next argLIed that the information liker to be obtained
from the pen register and trap and trace devices was relevant to  ongoing
investigation to protect againstintemational- terrorism, as. certi?ed by the
At ene? - lunder 50 SC in support-oifthi's ?CertificatiOn

.. . . a. dam.

       
  

      

 

 

at ?the oVerWheljmingvmajority of
communication. ill-be collected Will? not-"be-
rassociat?ed Wit  HOWever, the government
maintained thatFI-S did notimpose- any requirement to: tailor Collection
.preeiSjely to .Obta-in'only Communication-s that. are strictlyirelje-Vant, to the
(intresti'g?ationz, argued that, in  eVent?, ?the, "tailoring
mestfbe informed. by. the balance between the. overwhelming
national Security at Stake - - randthe minimal *imr-?U?Si-On into
privacy interests that will be implicated ?by collecting meta data especially
theta data that will: IiC?Ver be seen by a human being, unless a} connectiOn, to
ant-terrori?stsassociated is 'f'oundg? 3 I 

Theig?eirernment

acknowledged-?at

  
   

  

The government also stated that the NSA needed to collect meta-data
ffeCtiVely use analytic tools such as contact chaining

at WOuld enable. the NSA to discover?enemy
commu- sr?argume-nt echoed a premise many Of?eial?s tol__cl?us
 nature..ofi'intelligenee gathering in; general. For, Baker
?likened?the; search for Useful intelligence, particularly in; thei?meta data
Context tel-jiijtiinding. a needle in au'haystaek, stating, ?the only way to ?nd the
needle: is to, haVe the haystack;? Gonzales argued that. the dots
first  to collect: the. dots 

 

were descnbed as

represented that for most of the proposed collection on.
   11;:Was ?Overwhelmineg likely? that at least one end of the
c: Immunisation Either originated in or was destined for

ilbe?lti'onSOHtSidexthe United States, and that insome cases both ends of the


?wg?muniieation Were tirel ewe/reeds.337 However  

kno eded tha 1,

    
  

 

 

 
 

- --1rn_a sly agreed that the abovc~described collectio 
?atisfied? the de?nitions of pen register and trap an
under FISA and Title 18. See 50 U.S.C. 1841(2); 18 U.S.C. 3127(3) 82; 

'TheapplicatiOn also explained the proposed archiving and querying
process. According to the application, the collected meta data would be
stored in a..s_ecure' NSA network accessible only through two administrative
l'qgin amounts and by specially-cleared meta data archive system
administrators. Each tirne the database was accessed, the retrieval request
wOuld be recorded foriaud'iting- purposes. 

 

 

 

 

The-application proposedgallowing,  accessth the
- databassass The 'b?e?briefed? by of
 COUHSGI concerning the circumstances-under which-{thE-detabase
?c'oultli?b'e queried, and all queries would'haveto ?ber approved?bgy one vof?seVen
senior?NSAof?cials-239'    

   

PThepliapp?Qai?in explainedthat the bulk, collection. wool 
smail'addressesin?rde5' . .
These-15119 eti?i?i
??db?e performed

     
      
  

prep 
when the email address-met the following standard:

 

based. on the factual and practical considerations of everyday
 on which reasonable  prudent piersonsract, there are.
?faetsggi  ingri'se to {a reaSOnable articulabl?e tenspidon that a.
  knonrn- {email assesses is associated 

    
    

In addition, the NSA proposed applying the minimization procedures
in the United States Signals Intelligence Directive 18 18) to minimize
the information reported concerning U.S. persons. According to the
application, compliance with these minimization procedures Would. be

 

233 At the governmen? ber of SA was increased to 15
when the Order was renewed  

939 When it granted the?govemment?s application, the FISA Court noted that in
ConVentio'nal pen register and trap and trace surveillances aucourt ?rst ?reviews the
apPliCation bef0re a-particular email account can be targeted. The Court-stressed. the
iniport?ance. ofthe Of?ce of General Counsel?s obligation to ensure that the legal

adequacy fer such queries was met.

 

 

Inspector-General and General Counsel. The
geveenment each. reneWal application the 'NSA.-Would.-
report itoj-the Cell-ft Ons- querie?suthat' Were, .made during the! prior: period
 the: application of?the "reasonable articulahle su-spiCion standard for
determining thatvqueriedraddresses 1were terroristwelated.  

 

  supporting "docmments explained howr the. 
  a th 1 d?metaidata. 'ught to use  meta
t'  =1 SO?phiSi?iCated-r

   
  
 
   

   

   
 
 

     
  
 

appliejatien, the, NSA estimated?that .l a1; ends-gathering-
andinterhal analysis-it would Inset We preposed querying standard on
average {less than. .e'nce" a day. The further estimated that these queries
400 tips: to  FBI and CIA per year,241 Of
these-tips. to the FBI  CIA, the NSA projected that 25 percent would
incluel?e US, person information, amountingto leads includinginformation
on persons each month,? 

   

Application. 

Judge-Kollar-Kotelly wrote Baker to inform him-
 ?a?s'jeonsidefirig'the applicatien  was in the processef?
preparing"  opiniOnHand order?in response to: it. She wrote that before-the
epinin  OrdercDqu be Completed, however, she required Written
reaponses to two questions:

 Judge Ko?at?Kotelly Rakes Questions about PRITT

 
  
 
 

Apart from the First Amendment. proviso in the statute (-50
 What are the general First
Amendment implications of collecting-and retaining this
large volume of'inforrnatin that is derived, in part, from the
communications of persons? 

(2) Fer. how longwou-ld the information collected under this
authority contintle to be of operational value to the
countereterrorisrn 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

 

 

2?19 These analytic-tools are discussed in {Ch'apter Threethis estimate based on the assu  
be expected to general:  ?mail addresses ?one level out,? an 1 addresses ?two levels
out.? The overall number of: direct and indirect contests With the itial seed address Would;
be signi?cantly reduced using ?analytical trade?craft.? 

  
  
  
 

 that each query could

   

 

 

 

 

the FirstAmendmen?c and that he
could-?nd-no-reported .dze'c?iS'ions'holding- that the use of "pen- regist?er 
trap  trace-devices violated 'the-?FirSt Amendment. 

. In his? letter, Baker argued "that although the meta data. Collection
entirely innocentcornmunicatimrs, aggoodwfaith investigation
 Violate" the First Amendment simply- becaus-e it'is ??broa[d] in
agape?? (quoting Laird v. Tatum, 4'08 1, '10" He also wrote that?
the?usepf  .do'llE?Cted meta data would lac-?narrowly constrained? beCauSe
the querying Standard for the meta data-Would be subset to. 1] "reasonable
:artiCulable Suspicion? offs-nexus to i 

     
     
 

Regarding Judge Kollar?Kotelly?s Second question Concerning how
collected meta data would continue to be of operational value,
Baker Wrote that, based on the-analytic 
continue to be releVant 

  
 
 

least  months. Baker also advised "that the NSA eve the e?mail meta
data would continue to retain operational value beyond 18 months, hilt that
itigshould be stored accessible to? queries only hya-
:'SpeeialIy?oleare'd administrator. Baker proposed that 3 years after the 
1?823inolnth?tirnefrarne, after. it is ?rstcollected, the. meta data
i i 

 

5. court Order (U)

In reSponse to the application and follow-up questions, on July 14,
2004, Judge Kellar?Kotelly signed a Pen Register and Trap and TraCe
Opinion and Order based on her'?ndings that the proposed collection of
e?rnail meta data,_and the government?spropos'ed 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 do. a the collection within the United States of
email meta data The Order
also required the government ?tocomply 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 the FISA Court issued an order authorizing the NBA to
maintain bulk ?maa data chi-line "for years after which time it must be destroyed.
According to the NSA Office of General Counsel, the SA still follows this retention

procedure. 

 

  
     
  

authorizingcollection of  te_gories~of information delineated-in 
?ePp'liCa-tion, but acknowledged-"that- addit?ion?atin?formati?cm ?(lounges
gleam-d? from-that" meta .da 
The Court "found th 7
'of-metadatawereto: be collected  I I I 
the means. for collecting th I tegory of irnet'a data-satisfied the
FISAide?IiitiOn of attrap and: trade: dev1ce See 18 ULSAC. 3127(3) 

as incorporatedinFISA at 50 U.S.C. 1841(2).   3? ?g  

   

     
    
   

a pen 

      

The Court further found. that the government. satisfied 
requirement that the application certify that the information likely to he
obtained is relevant to an ongoing investigation to protect against
international terrorism. The COur't concluded that?, ?under the
circumstances-of this case, the applicable relevance standard does. not
require aetatistical 2tight fit? between the volume of proposed collectionand

i - . proportion of information that wil-lbe directly relevant to
 investigations.?243 I 

       
 

  

    

The: Court also agreed  the position that the. privacy
interest; etvsteke  the Collectibin 0.17 email meta-data did netrise to.? 
?Stature-pretected by the Fourth Amendment,? and that the nature 'o'f'the
inthiD?was? mitigated by the restrictions on accessing-and disseminating
the information, only a small percentage of Which wouldbe seen-by any-
person. 

In sum, the Court concluded that the use of pen register  trap and
traee devices to "collect email 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 I
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 tale types of collection, includingthe fact that overbroad
eleetronic surveillance requires a showing of probable cause to- believe the 
of?a foreign power, while the bulk meta data collection under pen register and trap
and trace device provisions merely require - overbroad collectionis
justified as necessary to discover unknow  persons. The court also
contrasted. the high privacy interests at stake with respect to content communicatiOn-s with
the absence of a privacy interest in meta data; 

 
 

 

 

Howrever, the Court also. was concerne'dnthat ?th?e-?eittremely broad
nature-of this ColleCtion: Carries it a heightened- risk that collected
information. could be subject to various- forms ?of. misuse, pcten?auy
i?leving 'abridgement (sf-First Amendment  of innocent The:
50 1842mm), pen register and trap and
trace: information about the commu-ni'cationSUf a person cannot be
targetedfor cellection anlesS it isrjeleV-ant- togan investigation that is not
upon the FirstAmendment. Therefore, the Ce'urt ordered that
  its criterion for querying the arc'hiVeddata  inserting the
following language, as Shown below:

  
  

 
    
  
  
 

will qualify as a seed 7_    
only If NBA concludes, based on the-faCtu'  praCti a1:
cens'ider?ations of eVeryday life On which. reasonable-and
prudent persotis act, there, are facts. giving rise to a- reasonable
'?rlticulabl?-s?us: 
asvseciatedwifth 
ermidsd.? hoWeverrthat a -
se?l  2a:   - eraser shall. net. be re .

     

that arenrotecte
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
th ?informationin a manner?thatgensures 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
COu'r-t further ordered that the e?mail meta '11 sed only
through queries using the contact chainin 

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 - sion to target an e-mail address (sometimes
referred to as a ?see would be made Without judicial review.
Therefore, the?Court dered that the Office" of General Counsel would.
be responsible for training to comply with querying standards and

    

   

 

 
 
   
  
 

 

 

otheraprocedures- and ?to review thele'gal adequacy for thejbasisyof such 
queries, First Amendment. revises-  

    
   

 suggested a 
 regarding       the
Court ordered data shall. be available for 1281 
querying. The Court further Ordered that after?the lemonth period, the
"data". lac-transferred to:  ?of?ine? tape, systemifrioni  it could
still ?b-ecaccessad. for querying upon approval of ?ue NSA 
to: approve qUeries, and that such meta data must bepdEStreye?dA?U/z years
after initially- C'O?llected.  1 I 3? i I

The Court?s Order was set to expire aftergO days. The Court required
that anyapplication to renew or reinstate the, authority granted in the Order
a. report discussing queries made; since the prior application
 N-?SA?s-appiication of the rem-kite  toil thosetqu?friCS;
detailed mama-1011 reg-atdi prop?OSed tobe added .to the.
..authegri?il earrteduunder the dier;  changes-to the-descriptien of: the
 ed Order-or the natureof the communications

means :ofeouectfiom
Cit-h  registervand

    

     
   
 
  
  

7 I to

 the Courtis-SUed separate orders    .
with: the-installation and use of th per-1 register  strap and

     
  
 
  

trace races and :to. maihta the secrecy of the 
caJJed ??seCondiary orders a. .7 
I  Wa directed to compensate-the carriers for all
in connection with the Order".

and i i/gr/ NF)

 4.4.34?,

        
    

 

 

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 

not the bulk e?mail meta data coliec

 
  

   

  
     
    
  

   Conley told us that
in- ng Order from the FISA- Court also prdVided an ?air of legitimacy?

to. the program-1.244 

 

94" Carney and others informally referred to the Order'as ?the mother of all

pen regis'ters.? 

 

 

     

eeiden??rciers: Limited Us"

a s? . [a

 



 

We discuss below the President?s directive and't?he oLo: memorandum
that-Was; drafted. to-13na1y2ezits legality. 

.1, The President?s August 9-, 20.04;;Meimoralndium to. the
Secretary of Dafense. 

On August 2004, the same day a routine Presidential- Authorization
was issued to continue Stellar Wind, thePreisider?it sent a separate
memorandum.th fthe email
-meta, data collecte   .. The
 direct the rec .0 Defeneesth?at?, icon?iet grit Withthe

 
 
  
 
 

Augustifgi 2004?, Presidential Authorization (and-?any ucceesor Presidential
the? NS was authorized'to  .t

     
   

  

 

245 The President?s Memorandum provided that the authority to conduct suoh
searches Was. to terminate on- September 23, 2004. In the September 17, 72004, Presidential
AuthoriZation, this authority was extended until November 18, 2004.

 

 

.Jgek- Goldsmith resigned as ASSi?stant Attorney General for the Of?ce
,off?Le'gTal Counsel (in July 730, 2004. Goldsmith Was-replaced byiDan-iel
serVeduas the Acting AsSistantAttomey Generalfsr'QLC 
Fabr'uaryQiOUS. (U)

re uestvof LSVinggan

   
      
   

$31, b3,

 

255 The mail meta-data has sinma been placed on tape and is being held
by the Counsel pursuant to a preservation Order.

 

The ?nal version of the OLC memorandum was signed by Levin on February 4,
2005. Levin told th'eOIG that decision? 
membrandum to the speci?c purgos'e
However, Levin stated that, based on his analysm of the lssue?, 

 
  
  

 

 

 

 

I Thus, the. President? asserted ?zeXtrajlldi?dial authority reorder the 
meta-data- eo?lleCted' underd?S?tellar Wind??for?theflirn'ited'
purposedescribed in his 9 memorandum. The: FI'SeCourt Was
 i of ithisagaetion, although the- government did not. seek-its lperIniSSior-I.


 Non?compliance -

   

 

orders issued under the   
renewed every-90 days. Duringth?e early :1?enewalis, tWO-rnajjorinstanees .on

:rieri?ee?mplsia?ceuwere brought to. the FISA Genres attention, ,As? deseribedi

'beioiw? these violations of the Order resulted primarily from?the NSA senior

officials? failure to adequately cemmunieate? the-technical. requirements of
the Order to the NSA operators tasked with. implementingthern, 
miscommUn?iC-ations among the FISA Court, the Justice, Department, and
the concerning Certain legal issues,  I

Filteringviomtions 
"e I-PR?l-e?d with,

thatthe-coice icidents
Cited  the eomp?aneeaiSSue?SWith about; 

 

   
  

    

by: the DIVE-43 

atta?hm'ent a letter 'fr-O NSA General Cbunsel Robert Deitz ?to-Baker?

         
   

  

 

  .,  could be queried for any purpose. Levin told
us that, other than Addington, no-one date was pushing to broaden the memorandum?s
application. 

  

243 Subsequent filings indicate the of overaJJ collections under the Order

were affected by the violations. 

349 One tipper that was based on this unauthorized collectionwas diesern-in'ated as
a 19:: c1: tn the FBI but was subsequently retracted! 

    

 

   

 

 

     

:KollaraKo?t
thegFIS'A, .

   
   
  

 

  
  
  

o1; nappy aha-militate
 an Orders-Regarding-
3 i ?(Cornplia?nce Order}.
 :wret?i watt-he Vlol'ated- its own proposed 
Were attested to bykits Director and, at the government?s invitation, adopted
as-sproviSiOns of the orders of this Court.? The Court found that the
deliberate actions by NSA personnel,? as

echni?cal failures; T-he-COurt stated it was also troubled
 violation-s, which extended from July 1-4 thrDug?h
jthe Con reluctant to issue a renewal of

(W)

Curt iSSUed an Order to address 
  .0. ion for Authorities:Initializing
requiring that an a teatim-
  . 7 be ac mpamed: 
a. .. a ewSecre ,ary? of b??f?hs?e atteSti?ng to the stated
compli 2 Order and a description of the procedureS that

   



dis?n?guished from 

      
 
 
   

 

 
  

 day, the. c:

       
  
  

  
 
  
  

       

 
 

would-be 713186di to ensure: compliance. 
hm)- 

it the government moved for an extension of time
I -in which to. provide the Secretary of Defense'b
assured the Court that

 
  
     

'co act chaining database using only properly obtained meta data and
purged the unauthorized meta data from the system. 

A declaration by NSA Director  accompanying the

government?s motion stated a total 0  e?mail addresses Wee t' ped as

 
    
 

leads to the FBI and CIA during the v'io ation period and 
leadsamayuhave come from the unauthorized. collection Hayden wrote. that

 

 

 

 

 

Office of the'lnspector General subSequently issued a report
of the unautliorized COllecti'ons. The NSA OIG report
stated thattheyfiltering, Violations ?probably led. to actual :unauthorized
collection, 'butsxve have?th been-able to determine the extent of such
  are not certain- that we'Will be able to do so.? The report

     
      
     

 

The re. ortconczluded that

 both  . .. 
Within the Signals Intelligence Directorate (85115)], and a complete lack of

program management 1h regard to collection.? The report stated that

?ther  failures

While-the trainri-ngprovided by the NSA Office of General Counsel Was-

?Vigproua,:eonscientious, and compliant with the July 14 Order, it was
inadequate in scope.? . t. . . .

 

.Act?ording- to the report, the N-SA removed as much of the tainted
'co?ec'tion from the TT database as 16. The N-SA unable. to
segregate'unau-thor-i'Zed collection fro 7  
that portion of the TT database from
the-virilation Was discovered), forward. Moreover, ac'corelmg- to
report, analytical personnel were restricted from accessing the unauthorized
meta data.

  
 
 

  

2. FISA Court Renews Order W)

The FIS-A Cour-Es Order expired on
date the government filed its first renewal application. The Reewal
 sought authorization to collect e?rnail meta data 0 
and ed-

   

 
    
 
   
 

  
  
 
 
 

reauth?oriz?ation for collection due to a variety of
operational reasons which theap'pli'cation did not speedy. 

 

 

Baker told.? us that during one of his ?oversight? ViSits to the 
.fd?QWijng  FI?SA-Gourt?s Order, he was given a demonstration of
how the. NBA the e?rnailim'eta data, including an
eXpl?ahatibn Officiw ear-mail meta-data is: celle'et'ed queried. Baker said?he

 that;  of data that might

be used?to meetthe.
able-anti ulabtestandard 7 

      
    

 

 

 

951 In the initial Order, the Court required such a report only upon the
government?s. submission of a re ewal application every 90 days. 

'25? As noted above, see numberstor
whioh a reasonable art-ieulable "exists to believe th is. related
toa terrorist entity. See "are used to-queiy the met?'di??i'd?f?base to reveal
links with other addresses or numbers. 

 

3 b7E I

 

Ap?i'i?e?ttlo?e??d',   

  
 
 

A?s deseribe'd above, the Order-wast first renewed 
andiwais .renCWed by subsequent orders of the PISA Cour

  
  
     
 

I 

 
 

the Court lesued a Supplemental. Order-
 nhance'its reporting to the'Court of?thc. foreign.
intelligence bene?ts reahZc-zcl under the orders. Writihg? for the FISA

 . Jud 1e. Keller?Katelly stated that the. authority granted.under-these:

NSA ?to collect vast amounts. of fe?rma-il.
but that ?the - Court- is. unable ?on the:
the extent-to which information-asle- collected has
ace-many resulted in the foreign intelligence bene?ts; orig-mall}! 
'Suppl-e?len?tal Order at 1?2. The government responded-with, amotion I
requestingthat? in light of prior brie?ngs it had given the FISA not
berecluifed-tofully comply With the: Supplemental Order. 11: is notelear'
 epeoi?e act-ion - he FISA Court took in response to this] motion,,
althoughil?asied on thie-zOIG-?s-review of the docket the government

 regular- reportsto "the. FISA- Court.

  
     
 

   

   

b1,
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254 In these renewals, 
hat were approved in the July 14, 2004, Order. 

 

 

 

b7E

 

Ill  Telephony Mata Data Collection Under FISA 

 second, part of the Stellar Wind program brought tinder FISA
 NISATS hulk collection of telephony meta data (basket 2).
Chapter Three, under this aspect of the Stellar Wind

. program-1thefiNSAabtained clet 1 records of tele hone calls
*d??ati0 a

           
 

 

. meta data, the bulk

 

b1, b3,
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number 0 aeh call, and the date, time, and duration ofeac?h call. 
do net include the substantive content of any communication or the name, address, or
?nancial information of a subscriber or customer.

 

 

hony' collection 7_ to Conduct

Contact chemin

  

  
 

 

. The. transition. of. bulk telephony meta data collectioniifmm
Presidential; AuthOrizati'oni? tinder the Stellar Wind program to FI?SAauthority'
   PISA statute: the FBI  siegekean
- order from the. FISA Cour-t compelling theproduotion of ?any tangible
filomany?ibnsmese, organization, providedthesitems-are for-
an 'aqthori'z?d? investigation to protect against international terror-ism or 1, b3,
intelligenee See 50 1318.0. 1861'. orders under this. 13713
prox?rlision =oorrmionsly are referred to. as ?Section; 2:15.? orders, inrefere'nce to
Section 2?15 of the USA PATRIOT which amended the ?business
re'eordS? provision. in title of FISA.358 The ?tangible things? the gavern?ient
"the  2-15 avlioation described-tin this {section were the call


   

Wezgdescribefbelow the Circumstancesthat led ?to-th'e go?Vernmentts'
decision togstransitionthe bulk sensation of? telephony meta data from
presidential-autherity to PISA Authority. We then Summarize the
government?sinitial ,apjplieatiiOn and the related Court Order.

?v - I.

4

      

A. Decision to Seek Order CompellingProduct-ion of Call.detai1

record?s  

Th-etimingof the Department?s decision in May12'006 to. seek; 
Court; order for the bulk collection of telephony metadata was d?ven
primarily 7by-external events, On December 161 2005, The. New York?Times
thlisjhed-iansartiele entitled, ?ush Lets us. spy on Callers Without
Courts.? The article, WhiCh we discuss in more detail in Chapter Eight,
deScribedin broad terms the content cellee?tion aspect of the Stellar 
program, stating that the NSA had ?monitored the international telephone
ca?suof hundreds, perhaps thousands, of. people inside the United States
without warrants over the past thre a
?d numbers? linked to al Qaeda.? i

        
    
    

I I mom?.
I. I 

 

253 The term PATRIOT Act? is an aeronym for the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and obstruct, Terrorism Act-of
2001., Pub; L. No. 10766, 115 Stat. 2'72 (2001). It is commonly referred to as ?the Patriot
Act.? (U)

 

 

. . 17, article, President Bush

publicly had authorized the to. intereept the
international communications of people. with ?knOwn link_s"' tidalQaed?a 
re-late'd'terrori'st organifZatio'ns (baSket  On January 19', 20:06,, the Justice.
 issued a document. ran-titled: ?Le-gal Authorities Sapport-?ing-?the
 O?fiithe National, Security Agency iDesCribed 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 descri?bedin the
New-Yerk'Tiines article  confirmed by? the President.

 

 carding to Steven .Bradbur'y?g, ?e-lieadn

analysis Contained 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 A'l?de, Verizon, and BellSouth.? The article stated that the program,
launched shortly after the Septemberrll attacks, collected the records of billions of
domestic calls in. order to analyze calling patternsto detect terrorist-activity. The article
reported that the records provided 'to the NSA did not include customer names, street
addresses, and other personal information, but noted that? such infOrr?na?t?ion was readily
available by cross-checking the telephone numbers against other databases.
b1,
b3,

 

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-A Summary at Deaartmentis Applicatia? and R?atedi?sa
maritime:  

- As} noted Previous-1y, applicationsto thexFIlSA Court  order;
?tangible  are commonlyareferree ?to -
 inreference to Section. 215 cf the?USA PATRIOT
 secs-0a  authorizes. the FBI. to requesta FIISA Court? order 7

requiring the-production of any tangible things (including
books, resords, papers, documents, other'iterns) fer an
investigation to obtain foreign intelligence information not
 aUnited States person or to protect against
international; terrorism or clandestine intelligence activities,
"providedthat' such intrest?ig-atiOn of. a United States person-isnot
upon thebasis-ofactivities protested by the
ji?fi'rSt'. amendment to the Constitution. (U) i

iSng Section: 2115 does not require that the?items'
 tee-the subject of an=investigation1sgthe government need only
demonstrate that the items: are relevant to an authorized investigationgg?g
(U3).

OnrrMa?y 23,2006, the FBI filed with the .FISA Court a Section 15'
a plieation seeking authority to collect telephony meta datato assist the
I - 'oragents?o 
 elated-e31:

     
   
 

 
 
    

    

 

  

investigations- then 13
T-h?elapplication requested an order compellin      
produce (for-the duration of the 90wday order) call an records relalng to?
all telephOne communications maintained by the carriers. The applicatiOn
described call detail records as routing information that included the

b1, b3,
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25? ?United States person? is de?ned in FISA as a citizen, legal permanent resident,
or unincorporated association in which a ?substantial number? of members are citizenscr
legal permanent. residents, and corporations incorporated in the United States as IOng as
such associations or corporations are not themseIVCs ?foreign powers.? 50 U.S-.-C.


9-5? Prior to the enactmentof?Section- 215, the statute?s ?business records?
provisions were limited to obtaining information abOut a specific-person .or entity under
_iriVesti'g'ation. Also, information could be obtained only from Common carrier-s, public
accommodation facilities, physical storage facilities, and vehicle rental facilities. 

 

 

 

- originatingand terminating{telephohe number of each call,- =aand the date,

time, duratioin of eachxcall. The application stated that telephony theta

d?atiadicl not-inelud'e the substantivevmntentof any communicaticnor the.

I name, address, or financial intermatiOn of a Subscriber or customer.

-  the application, the majority of the telephony meta data,
provided tortheNSA Was-expected toinvolve communications. that were (1)1
 Unitedz.States and abroad or,? 2 when .. within  United.

nc?lud local elephone calls.

   

   
   
 
 
     

The. application acknowledged that th collection w0u=ld include
rec-otds Of'Cornm-uniications of US. persons located. Within the United States
Who.  ere. not the subject of any investigation. the
established the Order, the. application asserted that the
 dad for the NSA to perform: analysis to find known 
7 and to: identity unknown operatives, some. of whom 
  . _United?.rStates or comniunication. with U.S. persons. The:
application-State.d thatit was not possible to determine in advance which
particularpiece of'mjeta data will identify a terrorist. The application stated
diatobtaininggsuch "bulk data inoreases the. ability, through
con? echainin to detect and _.identify members-o. 
. 0 er rds, according- to the "application,
metata?'ata'analySis'iS possible onlyif'the ?has collected and archived a
broad? set of that contains within it the subset of communications
thatcan latel'. be identified as 

   
 
   

 
 
   

I :b 

  
  
 
   

   

 

 

 

b1,
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955 The FISA Court had stated in its July 2004 that the FISA statute?s
?relevance? requirement is a relatively low standard and that in evaluatin; Whether bqu
meta to an? investigation into
shouldgbe .giVen to the fully considered judgment of the executive branch in assessing and
responding to national-security- threats and in determining?the potential significance of 
information.? The. government cited this precedent'in the Section 21-5
ust as the bulk-coilection. of e?mail metadata Waslrelevant to FBI
investigations int is the bulk collection of telephony

metadata described herein.? W)

  

 

   

 

 

   

 
  
 
  

  
  
 

life on reasoriablezand prudent persous- 

th

 
   
 
 

like  a.
the. to?the- query standard; 7 

   
 
       
 

telephone number?bel-ieved- - . . .
.f?gal?d?d- as associated? With  
solely-0n  basis of activities

  
 

a laced-by; the? Firs-t7 Ame?dmenrto

the C'instittLtion.?

Awarding to the applicatiomlhezsNSA estimated mat Only 
fraction (1. in 4 million, .or'io.00'0023percent1 of?the 'o?a?ll' detail records
.  111- the-databaSe Were-expectedgyto beganalyz'ei "The results Gian?

 begrovi?dedv', or "??pp?ed?ito 

   
  

   

on access to, the
processmgand-disseminatioh of; the data 061160th thatswere es'st?ntially
identicaljto those included in the Order. These included'the
reqUii?emeiJ-t that queries. be approved by one: of seven officials or
managers that'thei Office of the General Counsel would review
 approife proposed queries of telephone numbers reasonably believed :to

housed byUS; per-80118357

     
 

 a Leis 35?"
ofmeta data;- s?ch?as ._controls on the dissemination-Of any! US. person information, the
creation of a capability to audit NSA with access to the meta data, the destruction-
Of-?oOIleCted metadata after a periOd of '5 years [the destructionp'er'iod for email meta data
and a by the Inspector General and General Counsel
cendu?t?d- With-in45 days of implementingthe FISA Cour'tOtder that assessed the.

(Cont?d.)

 

  

 

 
 
    

 

524-30rder atapproximately Q'Oeday intervals, with some

   
   

 

A on {May 24, 200.6,, the FISA Court 

application.  Court?s Order: Stated thatthere-were reasonab-lezgrounds to
Believe: that the telephony metaidata were. releVant to
:atifthorizved inVes-tigation's being conducted by theFB-I tozpromcta?gainst

international terrorism; The Order-incorporated- each. of the procedure-s

proposedin application relating. to- access to and use of

 data. . These procedures included a requirement? that 

orfeinstato. thesaut-hority for. the  collection

contain-areport queries madersince the .Order'Was-

?egr?anted;  the manner in which the- procedui'es-Ielating: to-access' and use
W?O'f'the meta: data were applied; and 5(3) any prOpo'sed =_changeS? in the way in:

 2thecall detail records would be received from the communications:
cal-tiers, The Orderalso requires the Justice Department to'review, at least
?90 days, a sample of?the NSA?sjustification-s for querying the call

 

..

Through" March 2009, theiFISA Court reneWed the authorities granted

 

 

'bl,

Furthei?fth?  uCoiirt?siS'ecition" I

 7 do o-fn?odify its-usesof the telephony ,meta
data froin an analytical perSpect?iVe. 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 involvingthe
failUIe to comply with the terms of the Court?s priOr orders.

 

adequacy of the-management controls for the proCess?ing and dieseminatiOH of person
information. 

255 As noted above, the: Court'grantecl an identical motion at the same time in

connection With the bulk collection of e-mail meta data. 

 

 

 Non-Compliance with Section. 2 is Orders

 

 January 2009', repreSentatives from the Department?s National
 Division attended a briefing at'the SA concerning the telephony
metadata collectiOn. Course of this briefing, and as con?rmed
by the  inz-the?days .that?fol?l?OWed, the Department came- to understand
    au?rying the telephony meta- data in a- manner thatwas
notepaumori'z'ed by the FISA. 2'15. Order-s. Speci?cally, the
NSA'itaS-lon ax the meta data with
 of telephone identi?ers from an ?alert list? that had not been
determinedth sati?sfyathe reasonable alitioul'able suspicion (MS) standard
the Court required be ?met_%before the NSA was authorized to ?accessthe'
archived-data? for Search Or analysis purposes??s9 

The. alert list contained telephone identifiers that we

[31? 

re of interest to:

. 

        
 

 

b1,
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genetate
conduet Contact chainin of the telephony meta data.
Hewe?v'er, automated ana  fei?l'a?l'eiits etiei?: ed by non?RAB approxie'd
identifierswere net permitt rite were sent to to
determine'JWhether Chaining as Warrantsd in
aetzordance with the  standard. 

On January 15, 2009, the eparnnent noti?ed 
that the NSA had? bee -  
at? 5's This

ustiee? 
.h 

     

 
  

b1, b3,
b7E

 
 
   
    

      
 

           

On January 28, 2009, 

 

259 The term ?telephone identifier? used by the government means a telephone
number as well as other unique identifiers associated with a particular user or
telecommunications device for purposes of billing or routing communications.

9.70 Fellowing the DBpartment?s notice to the Court, the attempted to Complete
'a software fix to the alert process so that ?hits? against the telephony meta data genera-ted
by telephone identifiers were deleted and that only ?hits? gEnefated'by
RAS?approved identifiers were sent to. NBA for further analysis. The also
attempted to construct a new alert list consisting of enly RAS~approVed telephone
identi?ers HOWever, the irnplernentation of these modifications Was unsuccessfulancl on
a-nuary 24, 2009, the?NSA shutdown the alert. process completely; 

 

 

 



 

. 
3 whateppeerstebe sir-?agrant Violation stilts The:
to fileaebrief?to?f?fhelp; the  aesess:

whethergtheyord?ers- in this-sdoeket should be :me'difiedi?ore rescindejdifixihether
ether remedialsteps should: bezdireeted; :anchheitl-leruthe Court Sheen?l?d. take
aetion'regarding persons responsible fer.  misrepresentations. to} the
Ceiirter   through itsee?tempt pester-ts
referral to appropriate ?inv?e sitigativeof?cee? The C'Qut-t also required. the
government to additional specific 
knew  :a1ert..list' being used to query the meta-data included .
had. net? been-determined to, meet the reasonable and.
'articillable Suspicion Standard; ?how'lonig the. ?unauthorized querying? had.
been conducted, and-why none of the entities the Court" direCted'to- conduCt
'rgeviewsizof the'meta- date ee-llectien program identi?ed the problem earlier;2?1

 

aOnF'ebrualy 17, 2009,, the government responded to ?theCourt?s
order that the previeus 'deseriptions_- 1:0  Court;
(lithe-alert;Illist process were inaccurate andr'that the. Section-.2515 Order-did
notc'authorize'the goVernment tones the alert list in the manner the-tit 
 ,?gieirernment-deiscribed tor the. C?ourtin detailhowthe-s?NSAdeveloped
procedures-in May. 2.0.0.:eto ?hnplement the Section 215 authority that
resulted  the-NSA querying the telephony mes datawith: .?omRnS
approved telepho?eidentij?ersrfer? 'over 2, yea?1:3, in vialetionf of therurt?s-
Ordermand how thosepmcedures came to be deScrihed incorrectly to the
Genre According te?the? the Situation resulted from the 
interpretation of the term ?archived data? used in the Court?s Orders and.
the" that the alert-precets?s under the SeetiOrl 2 15'
authority operated the same as the alert process under the Pen
Register Trap and Trace authority?? The. government told the 'C'curt that
?there was never a Complete understanding among key personnel?" who
re?ie?Wed the. initial report to the-Court describing the alert process about

 

271 The entities directed to Conduct-such reviews under the Section '215 Orders were
the'NSA?s Inspector General, General Counsel, and Signals Intelligence Directorate
Oversight and Compliance Of?ce.  

272 The NBA understood the term ?archived da

ta? in the Court?s Order to refer ?arch-hem?" repository of?telephony?met?a data. For this reason, the View, 1t-wasnot.
required-to limit the alert list to RAS?approved identi?ers. 

 

 

I terminology wasintended. to mean, and that ?there was-no
smgle..pelisonWhOVhad 'domplete .te'C-h-nioal understanding of 
3?    

   

The-government- argued that-the Section." 2.15 Orders 's'h'oul?d notxbe
rescinded-or modified.?in. light of the significant steps'thatthe Government
  to remedy the alert list compliance: incident  
effects, ?ae significant modi?cations the .Govel'nrnentf"isgin the.
 and the Value orthe telephohy emetadata coileetitm
 Government?s national security Ameng thetseveraj
measures;the-government highlighted. to the ,Courtwas "the NSA Director?s
decision to?rorder ?ende-to-end systemsengineeringand prosess reviews
and operational) of. handlingof [telephony] metadata.? Less
  weeks thegovernrnent ?led the reSponse summarized above,
goizernment i?nforrned?'ie Courtthatth?e NSA-lhad identi?ed additional

compliance incidents during these  

in? Orders dated March 2 and .53, 2009, the FISA caurt addressed the
Complianeeincidents reported. by the government  imposed 
changes to. the Scotion 2,15 authoritiespreviOusly granted. The Court first.
 the interpretation of r'the terrn ?5archiVed :data,? The 
said the. interpretation ?strains 'ere'dulit3?? and observed that
interpretation??thatturn-s on Whether the meta data being-saCCE?sSed has been

in a particular database at the  of- the access would ?render

Complianceiwith the .RAS- "requirement merely optionalf?W

    
   
     

    

      
 

that

data ?for; areport, the-identifier was either ?already  sabject  a   
been. reviewed by the Office of General Counsel to ensure the RAS determination was

not based solely on a US. person?s First Amendmentaprotected activities?{513W

974 The additional compliance incidents involved the. handling of the
telephony meta data in an unauthorized manner. The ?rst incident involved the .use
of an analytical tool to query [usually automatically) the meta data with non-HAS approved
telephone identifiers. The tool determined if a record of a telephone identifier was present
in NSA databases and, if so, provided information about the. calling activity
as?SoCiated Withthat identifier. The second incident involved three who conducted
chaininganalyses in the telephony meta data using 14 non?RAB approved identi?ers.
Aesording to the government?s notice to the Court, the conducted queries'of?
none'F-ISA authorized telephony meta data and were unaware their queries also ran against
the FISAaauthorized meta data. The government stated that none of the queries used an,
identifier associated with a person or telephone identi?er and none of the queries.

resulted in intelligence reporting. 

  
 

9.1.. at:

 
 

Jan: 

 

 

 

    

 

 

. the misrepresentations; the government 
made-tome Court from August 2006'- toDecember 2008 in report-Ls- that
- inaCctiratelydie-scribed the alert list- process. TheCOurt .reCounzted; 
speci?esmi?sreprestentations and summarized"theggovernmentis epran-atien
for;theiroeeurrenca The Courtthenconcluded, 

Regardiess Qi'what tasters-contributed to these

misrepresentations, the Court finds that the government?s.

failure to?ensure that mamas-11316 officials. adequately
underston  NSA?Salertili?st process, and to- accurately repert
its implementation to the-Court, has prevented,_if0r more; 
two bath the gavemmentand the F180 from. taking steps
tolrernedy daily violations of the minimization. roCeduresiset
??forth'in orders and designedto proteo all
"recoiids pertaining to. telephone-com nicationsof U..S.
persons. locatedwit?hin 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
bulku 

 

 

Thaco'urtalso addressed the additional nonaeompliance meid?etits
thatwere: identified during-the initial review orderedby the Director,
des?pitethe?NS-?A implementing 
intended to prevent their occurrence-k. In view of
re?COrd-lof reomplianCe incidents the gevernment had reported to date, the
Caurt stated, -

[Ht has-finally come to light that the authorizations of
 vast collection program have been premised on 'a ?awed
depietion; of- how the NSA uses BR metad'ata. this
missperception by the FISC 'existedirom 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
over-sight regime. The minimization procedures proposed by the
government in each successive applicatiOn and approved and-
adopted as binding by the orders of the F180 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.

Despite the Court?s concerns with the telephony meta data program,
and its lack of confidence ?that the government is doing? its utmoSt toensure'
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 2915 Orders. The Court explained that in lightof the

 

 

government?s ijepe'ated representationsthat the-Collection of. the: telephony
- metadata lsvital to national security,  together with the vCourt-?spriOr
determination- thet the De?ection proper-1y administered Conforms with the

FIESA Statute, "?it would not be prudent?tto order the government: to the.

bulk-collection, 

HoweVer, ?more. is needed to protect 
person inferrnation aequired and retained? pursuanttotheSeeti-onQ?IS
orders, the Court: prohibited the government from accessing 
coll?eeted ?until such time as the-government is able-to restore-?-thejCourtfs?
confidence that the go?vernmcantican and?w?l comply with previOus-ly
approved procedures for The government 
alcasesby?case basis, request authority from the Court-to: qUer-y' the meta
data-to obtain thI?C?lgIl 'i-ntelligeneof?6  reqUeSt must Speedy the
telephone identifier to be used and thefactu'al basistr-the SA?s?v RAS
determination.  I

The C?ourt Ordered thatupon: completion of: the NEWS) end?to?end
system engineering: and process reviews} the government file'a report that
- describes the results of reviews, discusses the stepsi'taken' to remedy
nenseempliance incidents, andpreposes minimization-and oversight
procedUIes to employ should the Court authorize resumption- of regular
access to thetelephony meta data. "The governmentis report. also must
ineludean affidavit from the: FBI Director and anyoth?er 
national. security official deemed appropriate(describing the value of the
telephony meta data to national security. . a 1-

Additionally, the Court ordered the: government'to implement
OVertsigh't mechanisms proposed  the government?sreslsonse to the
compliance incidents. These mechanisms generally require the Justice
Departments National Security Division to aesume-a more prominent role in
the NSA?sadminis'tration of the bulk Collection program.- For example, the
Office of General Counsel must now consult with the National

 

275 The Court also stated, 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 justified, in the View of those responsible for
our natidnal security, and that it is being implemented in a manner that protects the

privacy interests of US. 

27-5 The Court authorized the government to query the meta data without Court
approval to protect against an imminent threat to=11uman life, with notice. to the COurt
Within the next businessday of the query being conducted. The-Court also authOriZejd 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 oomphr with previously approved,
procedures for accessing the meta 

 

 

I _-SecurityifDii_Vsision re'l'ateito the I 
i?terpiietation, scope,- erimpIergneritation of past, Current, and? .futUre?iSecti?on
  related-to the telephony bulk meta data collection

 

 May '29, 2009', the Court authorized the . government to- continue
collecting} telephony meta. data: under? the section 215: Ordersa'for 43: days. I
subjeet'to the same jl-irnitations'lrset out in its. orders: Of'March 2 and 2009-.

 

m. leansentcullzectien under PISA-   

 

I third-and last partied-the Stellar Wind program brought under
EISA'authOrity wasscontenteol-l'ectijon (basket The 
thistransit?ibn' .Wasi?legellr  operationally  endear discussion in
 Sje?c?on does net addresS each. statutory element or the full. ChrOil?Qlogy
offthe.ygevernmenES- applicatiensxand related FISAC'ourt'orders. Rather, 

describe-  dec' 'be to:
mgr-eon: com-em cohesion  

 
 
  
 
  

    

  
  

we 
   omen collection propesals Fahd-the
era, Is. it "i?ssued; Inthi's section, We FISA courtjudges. 
rejectiOn-?of the goVernnientis: legal. apiproachv'to con-tent Collectiom ardeci'sic'jn-
that hastened the enactment ~0f-le?giS1ation that'rs?igni?cantly amended the
 statute  .pr?Ovi?deid the government surveillance- authorities broader.
than thoseauthorized under Stellar Wind.  -

 
 

A- Decision te: Seek Contth outer.-

 

The Department first began Work On bringing- Stellar- Winds content.
col'lectin activity (basket 1) under PISA in March 2005, shortly after Alberto
Gen-zales beCa-m?e Attorney General, Gonzalesto'ld 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
authority would also eliminate the constitutional debate about the
aeti'Vityi  would reassure people that the President Was actingi'acoordi?ng
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
thefPresident when possible. Gonzales addedthat in 2.0.071 nobody thought
it was possible to- bring Stellar Wind under FISA authority.

a

    

 

 

When Gonzales became Attorney Generaliti- earlyQOOS, .hoivcver, he
also knew there had been a leak to The New Yorlc'llime's about theNSA?s
content collection activity under Stellar Wind an that the paper: 
actively investigating the story. In November 2004', Gonzales (then the.
WhiteHou-se Counsel), together with Deputy Attomey General Carney and
his Chief ,of- Staff, had. met with New York Times reporters to discuss. the
pOtent-ial .. ..  

 

I In re's?pOnse *to Gonzales?s request, Bradbury, attorneys-
 and the Of?ce: of Intelligence and Policy Review, (OIP-Rlaswell as,
with iNSAperson-nel, devised-allegal theory, summarizedbelow, fer bringing
under the Stellar Wind program?s content-collection activities while.
preseivingthe ?speed and agility? many IntelligenCe' Community officials
cited. as the chief advantage. of the NSA program. In June 2005, Bradbury,
?together'with.Associate Deputy Attorney General PatrickPhilbin, presented
the legal theory to -White Honse of?cials David Addingtor'i, 'Ilari'ie-t Miers, and
Daniel-Levin  received their approval to continue-work on. a draft FISH

appIiCatiOn373+?8+tS??W

Bradbury told the OIG that heaals?o spoke to the Director of National
Intelligence and to officials about bringing Stellar Windisxciontenft
collectiOn under FISA. According to Bradbury, the. Director of National
Intelligenceresponded 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 NBA
also believed that?the Court would be reluctant to grant the the
operaticnal ?eXibil-ity it would insist on in any content application, resulting
in less suWeillance Coverage of telephone numbers and email addresses
used by persons outside the United States. 

 

As discussed in detail in Chapter Eight ofth'is report, in December
2005 The New York Times published its series of articles 0n the Content
collection portion of the Stella-r Wind program, resulting_in considerable
controversy and public criticism of the NSA pregrarn. Through the. spring of
2006, the Department continued work on the content application. In May
2006, at the first of the ISA Court?s semiannual meetings that year, the
Department provided the Court a draft of the applicatiOn for content
collecrion to obtain feedback on the. government?s unconventional approach
to the FISA statute. None of FISA Court judges indicated Whether the

 

277 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. 

373 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)

 

 

 

w. lappli'e fat-ion Wo'uldfhe cgrante if but so'megidenti?ed fecncernrs; with.
certainpaSpeetslofthe propOSaL i?  

sodsgres'sand the Adminise-?ationvwere and discussing
FISA statute to 'au?iorize the-type :of electronic
surveillance that the con-tent appli'Cat-ion sought, Work,ont1ae .applieation-
was temporarily"suspended as the Department fOCuS'ed its ate-new. 0.11
 Congress to craft this-legisllationl However, this". snapension of.
  application was brief; Bradburysaidfh?eoncludsd by 
the: falliof -, as Congress Was heading for there, would be no
legis1atiVe' .Iefotrn of statute in the foreseeable future that would
address content collection as it was being As
a result,  Department pressed f0rward. with the draft Content application
tattle-FISH C'ourt38. Summary 011' Department?sbe?eenmer 206, Content

Application 

IiiNevember 2006, at the second of the-Court?s. semiannual; meetings,
the2Departm-entpresented an updated draitojf the application. that?- 
frcy?m member-s of the during the
meeting; 0n:D'eCernbei: 13', 2006, the Department

 filed  content application With the Court, 

   
  

 government?s .D'ecembe

- 113' application; sought
interest-thee.tziw - .

authority
'a
b7E

11

    
  

    

 

as . 3-  

.Community to be able quickly and ef?ciently to acquire
communications to or from individuals reasonably believed to

 

 

279 The Content application?included the following caveat:

By filing this application, the United States does not in any way suggest that
the President lacks". constitutional or- statutory authority to conduct the
elect-tonic Surveillance detailed herein without Court authorization.

 

 

  
   

 members 61' agents of  sign}. powers.?

 

. According-"t0:  application, V?Ifgn-zea?y

Warmng system .FISA males he?. overnment to the 

rescues-of;

 
     
  

 
  

 
     
   

 

 

   

   

   - b.1?b3?
Individuals   u: . tee-States.- The  ywamns 3% Sousht 170- WE
replacethe ml 1p individual .-appli??ati?ons.
bash: time: st-heagovei?nmentz h'a?clapmbabl?c cause 
phone-number or. e~mai1eaddress, referred to by  as  ?selector,? Was
being? usedor about to be used. by membersoragents-of- at fOre-ign- powen

          
    

      
  
 

   
 

        
  

    

     
   

   
   
 

 

 
 
  
 

       
    
 



Un

1

   

      

. 

 
    

Ialb'e FISH FCGi-lrt

The legal: arguments. ruse-arming  are
also.
require  discussim of statute?ain?l previous 
decisions. .R'atherpithan: describe at length 1116361531163,   seetiOn- we
detail the two  components of to content
collection  the application that  'critiCaii-for understanding c?e
judge?s. approval of the applieati'sntand motherjudge?s later rejectibnvof

essentially the same application.

 

First, the, government proposed  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 Cqurt approval or Attorney General

"r

 
      

 

 

not} always, {app?lied?m Sectioxi prov-ides that the Court
may order electronic surveillance. only upon finding that; there "is. probable
cause; to; believe that ?5eachnof the facilities orplaces at which the. electronic
 is: directed is 'b'eing'us'e'd, or is about to tie-Used, by? a grout):
invoked ihintemational te-rmrism. The. term ?facilities? generally- wa's 
interpreted to refer to individual telephone niimbers or e?mailladd-resses-zat.
whichysurte?lanee- A  

   

    
 
 
   

in its,an  titration that theiterm

facilities? cbe?i'inter feted broad 

     
 
      

      

  

   

a rider. this approach, instead (if
7.  . eat ti'u telephone numbers- or e-imlail

add-IiCSSeS; the: Court would :determihe on" To th "there-was robable.
cause to believe that the target Was using:  
communicate t?elephonically or by e~ma?l?qa3r 

 
 

  
      
   

 

Second, the governmentis;-appiication requested that Senior NSA
o?f?'eiails be authorized to make. individualized ?ndings of probable cause
about?whether a .pattiCular telephone number or ermail adore-sewers being
  a  agent Of'One- 0f the 'applicationis targets- 
makes this probable cause determination. 

I  implement this transfer of authority, the government proposed that
NSAOf?c-ials make-the probable cauSe determinations as part of
"requirements called??m;inimization procedures,? which are detailed rules

 

'1231 the. government?s-memorandum of Law ?led in'support of' the content
application scribed sevCral instancesiyhere the FISA court authorized surveillance. of
oilit" Wasrnot-Iimite to- 'a?r?ticularetele?hone numbetsend addresses,

          

    

that

      

   

   

 

 a 
broader?th thorizedb 'the?Court . . 

b1b3,
useof the international telephone system and   b7E

 

 

thetgdvem  :mustwhandle 
intercepts- ,pertaini'fng,  person-s.  statutegproizidesrthat each
FISA'CaP-pilibation must-finclude;  Flea 
m-ini-iniifation procedures that the age n?cy vwiil. foam-with- respect-to.
communications intercepted pursuant. to a: PISA- Court order.- 

 

Mini-mention ?praooeduresi in the content-Ordinarily govern. the
handling of intercepted communications involving U58;peremeyafter"the"
.afeqeieinonhae been approved by  ELSA Court 
Gnu-rt authorize s- thewag'ency- to intercept the commumicati??s- 
the agency follows? the Minimization: prOCEdiJresWith. respect
tohow itgitetains', uses, and disseminates any US. person-information "it

collects- under the Court?s order-W

However, the government proposed as? part of the. content application
   procedures also encompasshowthe SAacqniree the
communicatiOnSPB-?t Speci?cally, the application propoSCd thatathe-NSA
could intercept the-communications of? Specific: Sel?ectoffs'ijf?ageney officials
vdeiari?iiledthemwas probable  '1 ct? 

ed  a member or ragenft?of'

 

 
     

    
   

  

   
 

 
 
  

 
  

 
 
 

     

a,  ,an?diizl Hie-communism our :ore?n-cinn
eminence refenred tothis- as the "minimization probable: ca?SC'

.standard'l"235' 

Thus, the content application had a tWo~ptong tenable:
cause standard?: (.1) probable cause to believe at-eelthor-isnbeingiused bye
member- or agent of a targeted group, and (2) probable can 

   
   

 

23?? Bradburyitold the that this argument was based-on thetexit'of thez?rFISA
-.statute;. which states. that minimization procedures- apply to 
comlrnUniCationein addition to their retention and dissemination, seasons-.0.
Indeed, the government?s Memoi?andum of Law ?led in Support of the content
application described several cases in which the FISA Court authorized the. g'oVEm?ment to
ndu ele troni surveillance that included minimization at the time of acquisit n.

1' in b' any targete' b12133:
b7E

  

  

       
  

7 ?he pfoposeid ?minimization probable can se standard? was inad?dition to-the?
standard minimization procedures that. accompany every- FISA appliCation submitted by" the
government and that have been liong~approved by the FISA- court?W

 

 
 

    

 

 

. - .  gproing ?probablecause to believe a Selector is lacing used
by aineinber or ?agentin a? ?targeted?group would "assess
de?ned in the application as infO?nation
"from-a.iJariety: ofldomeat-ic  foreign intelligence  law enforcement
Under iihe 'terms::of Ehe- applliCation, pos-itiVe-?ndinge of probable.
would. be-recoI-dBd?in ado-tabasetandihc assessment process would
be  to piefiodicinternal. roview by NSA offiCialS, including the NSA

General Counsel and Inspector General. 

b1,
b3accordance With standard  inimization procedures that apply to all of the agency?s
electroIiic surveillance activities.  

23? As'it did with telephone communications, the application acknowledged that the
manner in which e?mai'l communications are routed would cause the SA to collect some
email-Communications thattin fact are between communicants wholly within the United
(Cont?d.)

 

 

1  viewing-the gov?nment?s.approach to both- ?facilities? and
 the December 13,, 2006 content
- -  terms of theapplication, co?mmuniCations acquired by the
 .NSA .cou1dl3'be- retained for 5 years, unless the Court approved retention for additional aspect of the content application is important to
understand. The ?early warning system? the government prOposed applied



both to ?d'orne?Stic 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 evmail addresses reasonably believed to be used by individuals outside
the United States. Under Stellar Wind, the NSA intercepted the
communiCations- of both categories of selectors, although the NSA tasked far

more foreign selectors than domestic selectors. 

 

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. 

 

 
   
  

 

 

 The its confront application that the domestic
selectors ?wOuld: be  set ?to more. rigorous; targeting approval and. more-
-freqiient reporting to the FISA Court  foreign. selectors, but the

application sought to preserve officials? authOri-ty to make the probable

?gauge?{determinations as to CaCh;283 .A?s1we describe below,  first. FISAL
 ?to-consider the contentapp'li?cation, Judge Malcolm Howard,?

   

wasunwilling-to extend this authority to demeStic selectors.
 Judge?liioward GrantsAppiication-in PartW - 

 Department?s-December 13, 2006,, Content application was

assigned to Jtidge Howard, because he was the ?duty? judge that week

responsible for Considering new applications.5389 Judge Heward' advised the
D?paftment orally that he Would not authorize, on the terms proposed in;

the application, the electronic surveillance of selectors to be used by

persons United States (domestic seleCtOrs). He did not issue a written
opinionor-order concerning this decision. The Department, in response to-

oral advisement, ?led a separate applicationrequesting

authorityto Conduct eleCtronic surveillance on domesticselectors, This

application, below, was filed on January 9, 2007,  is-
,eensidered the-?rst ?fdomestic selectorsapplications; the December 13-

  cons?idered the ?rSt ?foreign Selectors application.?

udg?e Howard also requested additional briefin- - 3 A 

     

eOnstituted ?facilities? under 
rid Whether'the surveillanee an 3r sought  the government?s content

application-would. in fact be ?directed? not at these ?facilities? but rather at

particulartelephone-numbers and lea-mail addresses the government

would'task for- collec'tion. 

In response, the Department ?led a supplemental memorandum of
law on anuaryQ, 2007, arguing that the government?s construction of the

 

235 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 receivingthe government?s
reporter, 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 government24

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 cease. 

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. 1W

 

bl,
b3,
b7E

 

 
 

 

the. selector li's- bein - 'sd 7 

 

and. ?directed? was fully consiStent the terttof FISA
 Supported  Court practice-and precedent, The; memorandum.
 explained Why the traditional approach-t0 surveillance under. PISA

notaprovijdeithe speed and agility necessary for the ?early warning
system?the? application sought to create?go?W
January 10,; 2007, Judge-Harvard app?rOvecl the Department?s

content-application as to foreign selectors, endorsing the legal fraIneWork on
WhiCh the; content application for foreign selectors Was based, including "the

broad constructionsof the term? ?facility? and 'the?use of minimization-

procedures to emvaver SAoffi?cials to make targeting. decisions-abetlt
particular? selectors. Judge Howard?s Order authorized  government to
cenduct. eleCtroniesurveillancefora period of 90 days ?at' 

   
   

          

b1,
b3,
b7E

 

       

Judge-Howard?s Order also required that an attorney?from the Justice
Departments Nationalv~Seourity Division fer-
targeting-particmar foreign. selectors. The Order required the-government- to.
submit- reports to Court every 30 days listing new 'selectors'tasked
30 days and brie?y. summarizing the basis for the 

d?eterrninationgthat the first prongm" the minimization proba?le cause
"srandiar'dihasabeen met for each new The Order preserved the

Court?s authority to direct that surveillance cease on any selectors for which

 

990 on thiS? point, the memorandum cited the. government?s; limited resources as;

presenting a' significant obstacle tofiling-a separate FISAapplication for each selector it

wanted to plce' under surveillance. ?The government stated that it anticipated initiating.
collection :5  new selectors each month, a figure that translates to fi 
motion'to amend a PISA order or seeking Attorney General emergency authorit
times per day (017,; alternatively filin onernotion or seeking one Attorney General
emergency authorization coverin 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 reauthoriz. n, thegovemment present a listof
enrrent selectors previously reported to the Court that the government intended to continue b1, b3, b7E
tasking, identify any selectors reasonably believed to be used by US, persons outside the
United? Statescommunications. that mentioned a
tasked e-mail address but that were not to or from that
selector. 

 

b1, b3,
b7E

 
  

  

 
  
 

    

    
    

2?92 As noted above, the first prong of the standard is

 
   
 

b1, b3, b7E

 

 

 

 Ci?ourtfound that the first. prong-sot the standard [has not been- Sati?S?ed, 
tagaddi?tion, the Order required the Inspector General, General. Counsel,
 Signals Intelligence DireCtorateto periodically review thea'authorized
*oolleetion-acti?Vities; These office'sWerereqiairedfto .submita report 
the days :arter?the collection was initiated. under. the Order that
wouldraddress theuadequacy of managementcontrolsr  Whether. 
per-son informationwaSKbein-g handled- preperlyr  . 3 

According to several D'epar?tinent  officials, the effort to.
E:

      
    
   

b1, b3,
b7E

 

 

Astanresultof  Order,- the Department and NBA .submittedl'to the
 Cotth for its review the factual basis forteach selector supporting the.
 dcte?rn?nation? that the ?minimization ?prObable cause- b1
"standard?t-had been satisfied, The Department aeoompligshed  pursuant; b3?
to:    rixed'bydudge Heward under?which the Department ?led. 1-3733
foreign selectors every ya "for the duratioii of? the

 

'jgovadayoraer; {1 I  - 

The probable cause. explanation for each foreign selector filed 
Was described in several sentences. According to Bradbury,
be: impressed upon-the NSA that Judge Howard Would review each
submissiiOn  inquire about how recently the NSA had acquired
communications relating toga particular selector. According to Matthew
Olsen, the Deputy Assistant AttOrney General in the Department?s National
Security Division-who was responsible fer overseeing; intelligence matters,
Judge Howard did in some cases inquire about the. government?s facmal
basis for? believing the minimization probable cause standard has been.
met?gi Bradbury also said he stressed-that the Court would scrutinize the
probable cause determination-s more rigorously than the agency had
been doing itself and that the Court was more likely to approve a selector
where the surveillance was cur-rent 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
contentapplication and the government?s implementation of the related FISA Court Orders.

294 However, 
information? in asses
?problematic? becaus

     
   

radbury

 

 
  
 

Olsen told. us that  ereig-n selectors.ultimately
were filed  then-FISA Court understh?e terms. of Judge Howard?lsa Order;
 Said that the NSA sewed to submitsele ?tdl?s that-were deemed high 
 th-at'had a Wellsdocumente'd nexus: foreignpowers, b3?
and. that had recent communicatiens?--aetivity. A?tt?erneys? WE
 theterrns- the Order were required lie-greview the ENSA?SAjustificatiOn
- for -?e1a.ehl foreignrse'l?eetor that it tasked, worked with the: NSA this
reyiew process: Ascordi?gto Olsen; OIPR attorneys:

the probablelcause determmation ferfeach "selector,
but idlidnot mnduetindependent probable cause, inquiries. This re?ewi 
?i?de?tifi?e electors that in judgment required?
additional?ddeumen-tation befOre theycoul?d be submitted toth'e Court.295-
Olsen described the bao'k5and~forth between theNs-A as
said- the. SA was recep'tiVe. to involvement? Olsen
Statedthat the NSA Committed s?igni?Cant reSouirces "toutihe transition of

foreign selectors. 

Both Bradbury and Olsen observed that the transition of content
coneeti?os of foreign selectors to FISA requiredzsome- adjustment by NSA
 itS-Fapproaeh "to establishing. probable came?, Fer example; while an. 
analyst  base a probable cause determination to semeaextent. en
i-nmilitian2 Similar to a ?Cop on the beat-,7? it Was a'different proposition When
that {probable Cause determination had to be revieWed. by several. 
attorneys trying to anticipate how-the Court the judgment
Olsenstat'ed that it was also ?new? for the to document the pIObajbl'e
causes-to the level OIPR believed'the Court wetlld require. to
 Bradbury, the effort. sought an equilibrium between ?the necessary speed
andsagilib?? and the ?multiple layers oil-probable cause detErmin-ation.?
Bf?glburyfalljd Olsen both toldthe OIGrthatf tlie?:NSA haduconcerns- about
whether the FISA approach to content CollectiOH would work and the extent
to W?ieh a measure or effectiveness would be 1051: under? FISA Court

supervision. 
ID. Domestic Selectors Application and. Order-W

    

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 email addresses reasonably
believed, to be used by individuals in the United States should be ?led with

   
  

        

. 295 Olsen told the DIG that he believes the NBA die?tasked 'some of these foreign
selectors. 

 

 

 

 

the Courtin a-s-se-parate? application. Judge Howard also advised 
orffiEiasls take a more traditionalapproaeh

3  meaningthe ?facilities? targeted by "the application. be
"particular telephone numbers. and e?mail addressessand that the probable
 determination for taskinga selector would reside with the. ELSA. Court,
not With NBA. of?cials pursuant to minimization pr?Oeedu?res'. 

On  2007, the Department-?led the??ret domestic selectors
appliea?on.  application sought two things. First, the application
r'reues?tedlauthority to intercept the international communications of
peci?fic domestic selectors??3 SeCond, the application b1. b3.
sought-{forpurposes of future-applications, approval to use a. ?streamlined b71E 
version? of the emergency authorization procedures available under FISA.
emergency the use of electronic. surveill'anCe for
apperiod of up to '72 hours withO'ut a Court order when the Attorney General
reasonably determined that-anemergeHCy situation exists. See 50 
 The. procedures required theAttorney General to inform the FISA
Cour-t that?th? surveillance has beeninitiated and required the Department
.tes'file the-Court  emergency appliCartion to continue the surveillance
not morethat 72 hours after the Surveillance Was authorized. 

  

Theg?oal of'the Department?s proposed streamlined emergency
application procedures, referred to in the January 9., 2007, application as- a
?VerifiedApplication,? was to ensure that the emergency surveillance
process be completed as sWif-tly as possible for. qualifying domestic selectors.
 proposal allowed the Verified Application to incorporate by reference the
reasons er'facts contained in the original-domestic selectors application
neceSSaryito satisfy- some of the statutory requirements under- FISA, instead
in each :applicationrfor a new domestic selector that each- of
the requirements 'of FISA were met. The only new substantive .infOnnatiOn
contained-in a Verified Application would be the identity of the target, if
known, the telephone number the target was using Or was about to so and
7_ bl eve the target is
. we and is using or is about
to 11% 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

 

2295 Unlike the December 13, 200
. did not seek: authority to target agents 0
 nor did the application-seek authority to cenduct content-surveillanceof. b1:
exp. In unications-. Thedeclaratidn summarized for each of the domestic selectors, b3,
generally in to-three paragraphs, the facts that supported the government-?sbelief that b7E
the telephone num be used by a known or unknown agent 0
'7  located in the United States. SI NF)

     
    
   

      

 

 

streamlined emergency authorization procedures proposed in the
applicationfor anyadditional domestic selectors Whose cominu-niCations the
government intercept: duringthe' 90-day period-fer'which
Surveillance. was  

NSD Deputy Assistant Attorney G?Eneral Olsen told the. DIG that in
comparison With. foreign selectors the eparnne?ntxconducted armore
rigorous review of-the-initial domestic selectors submitted Court
 ensure that probable cause-"was met. Olsen saida few domestic selector
[their] face? lacked suf?Ci?ent documentation and that these
deficieno'ies were apparent to OIPR attorneys revieWi'ng the information
because the attorneys werelooking at the information for the first time. He
said- that the responsible for the seleCtors, in contrast, were
very familiar with the numbers and" 'lmowledgEable of details abOLit the
ne?ers-ithat might net have been evident to persons revieWing documentation

idexn'ovo. According to Olsen, for selector packages that were considered

,e?cient, the NSA either provided the Justice Department attorneys with

additional- information or deatasked the selector.293: 

E. Last stellar Wind Presidential Authorization Expires

on December 2006, the President signed what would become the
final Presidential Authorization for the Stellar Wind program. The
?ecember 8 AuthOIiZatio-n was scheduled. to expire on February 11, 2007 ..
However,_Judge Howard?sJ '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 Judgel-IoWard apprOved, the
?rst verified Application with the FISA Court using the streamlined precedur?e's approved in

the Order. 

293 Olsen and OIPR Deputy Counsel Margaret Skelly?Nolen told the OIG- that during
the applicatioii for and implementation of the domestic seleCtors Order, it bedame apparent
that there Were coordination problems betWeen the FBI and the NSA. They noted that in
man}r instances a domestic. selector the NSA 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 NBA 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-Nolen, the FISA Court has on some limited occasions.
been provided incOns'istent information concerning demestic telephone nUmbers or the
users off-those numbers. Olsen told the OIG that the domestic selectors Order has required
a higher level of Coordination between the FBI and NBA and that the National Security
Division has worked to address this issue. 

 

  pregr?am officially '6Xpif?d.299

 

 

elommuni'cati?c?ns and meta- data :cell?ectiOn; Presidential
Anithorizationgte ELSA Bradburygtold the?lG that-becauselt was
believed that; Judge HQWardis Orders, partiCularly theaforei-gn. selectors

I omen prettidedgthe;  sufficients?exibility to conduct content collection it.
. was not nesessarye'te renew the. December 78; 20.06;.Presidential? 
gauthorizatient;    

Therefore;   2007, Authorization for the

 

Fe Selectors FISA Renewal

Ayplication?s 

Judge Howard?s January 10, 2007?, Orde?fswere. set to expire after 90
days. During. the Week. of Mar-ch 20, 2007, the government filed .eeneWal
 .te next??d. the authorities both as to; denies-tic and foreign
selectors. These, application-swere?led with .-J udge Roger ?Vinson, the 
Courtdutyijudg? thatweek: 7 - a.

 
    

Theadome?Stic selectors: application, ?led  ?22,  Was in all?
material respects identiealjte the genrernmente original applicatien, Judge
Vinsonggranted. the applicationon April 2007;300   i? 

 foreign selectors application was filed on March 20., 2007. The
con-tent- and censt?ruetien of theM'arch 20 applicationwas? substantially
identical to: the government?s original and advanced. the; same;
broadi?cOn-stmetion 0f the term"?facilitie the use of- minimization
preceduresito_;authorize NSA officials, instead of judges, to makeapr-ohable

nausea."determinations: (subsequently reviewed by the FISA- Cour-t) about

particularseleetors;  -

On Mai-eh 2007, Judge Vinson orally advised the Department-that
he could not grant'the. foreign selectors application. His decision. validated
some conCer-ns Within the Justice Department that Judgenovvarde original

 

299 On January 17, 2007, Attorney General Gonzales sent a letter to Senators Leahy
and Specter, the Chairman and Ranking Member of the Senate Judiciary Committee,
inferming them of Judge Howard's Orders. Gonzales?s letter stated that as a result of the
anuary? 10-, 2.007, FISA COurt Orders, any electronic surveillance that was occurring under
the TerroriStvsurveillance Program would now be conducted under FISA, and that ?the
President determined not to reauthoriz'e theTerrorist Surveillance Program When- the
current-. authorization expires." 

 
    
  

:300 .As noted previously, the dome I 7 a1 coodinatien

sueshetween the FBI and theNSA, and a   a
 The Order was renewed for??the. final time in:

 

       

and has Slnce expue

 

 

IOHgEtBITIIi?fstrategy for intercepting {the
 otsfegrfeignaselectors; :Vinsoanprecisionalga 

uacstl?tated Department?s Bfiort3i= it: Obtain 

statute! tolsauthoriiae  "typeuof surveillance zcoattested-innderastellat 
asdaithat WastapprovedibyiJIidscHoward,   

- Oil-April; 351720071}: Judge Vinson: issued an; Order-and MemOrathiuttI
Opinion for hiseconelu'Sion  theV-eoul?d? migrant
e.?f0reign selectors application. However, Judge Vinson did not deny 

government?s*applicatidri. Insteadgheencouraged? Department tome a
 extremist-1390f  existing;
January-'10; In 
encouraging the D'epartment of- file the motionwith Judge Howard, Judge,
Vinson Write, 

have concludedthat'anzextension for this purposeis; 

'appropriata in View of the followms circumstances: that the

government has rco mendabw d?VOtv?Sd substantial-resources to

bring the 

.conducted uhderthezPresident?s astertion: 

   'aijudse cf ?iis

Court pro-Viousl'yf au?iorized  {the

 10, 2007, foreign selectors. Order] on': substantially the".

saitne terms as the government-now props see; that 

- no simple: matterxf'Orthe 'governmentto "terminate ssurveill'anCe-

phone; numbers- and eamailladdressesunder b1, b3, b7E
FI-SA: authority, and to decide Whether-.md how: git?: Should:
continue 3011162017 allof surveillance 
authority; and, importantly, that, within theallotted time: the
:governrnentvmay be able to. submit  application thatwould
permit me to anther-ice at least part of'th'evsurveillancein a
manner consistent with this order? and opinion 

  

     
   

Judge VinSo-n wrote that the Department?s foreign selectors re-neWal?
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. may make such,
determinations under alternative mechaniSm'cast as ?minimization
procedures.? Judge Vinson concluded, based on past Practice under FISH
and the CongressiOnal? the statute, thatproba?ble cause
determinations must be made by the FISA Court. 

 

 

epicplaiiningehis reasoning, Judge Vinson first rejected the
Department?s broad. construction of: the-term ?facilities,? concluding that
-?.electronic the; .g'IO'Vernment?s application ?w the if
acquisitiOn"-of the content ef?communicationsw? was directed at particular
telephone. numbers;sand. e?mail addresses .and- not- 

    
    
  
    

 
 
     
   



I need. snags Vinson distingur v-  - - 
gcvefrnf Aent'c'tc?d fer its: broad interpretation 0f ?facilities,? asserting; I
 none of the cited cases stand fer the proposition 011 

application: restsw that electronic 
ice?mail addresses

Judge  Wrote. that his conclusion was also supporte'dfby the
armaments and the Court?s past praCtice, as well as the, legislative history
 'Whi'Ch, according- to Judge Vinson, made clear that ?CongreSs- 
mandates pre~surveillance judicial warrant procedure,? and particularly
the judge?s?probable? causepfind-ings, to provide an ?external che'ck?o 
elitecutigve brat-lob de?cis?ibns to conduct s-urv    
 precesal the

     
    
 
 

 

  

ebab?le cause 
purview the quesnon O?fWhether?the
communiCatiOnS to be acquiredcwill relate to the targeted foreign pow-crawl

Judge Vinson rejected the government?s ?minimization'probable cause
standard,? stating that ?[m]inimization does not provide a substitute for, or
a-imechani'srn 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
specific 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, ?[thc application] represented that NSA will make the
required. probable cause ?nding for each such facility before commencing surveillance.?
Judge Vision wrote, ?[t]jhe application seeks, in effect, to delegate to the NSA the Court?s
responsibility to make such findings rbased on the totality of circumstances.? Obviously,
thisWould be inconsistent with the statutory requirement and the congressional intent that
the Court, make such ?ndings prior to issuing the order (emphasis in original).?

 

 

surveillance coirerage? must be based. on
findingst?of probable cause by a judge. Judge VinSOntsum-mari?zed. his
position?:

The Clea-r purpo;Se of these Statutory provisions: isfto ensure
that, as .ageneral rule, surveillancesare supported byjudici?al'
determinations of probable cause before  commence; that
deciSiion-s "to initiate surveillance prior to in
emergency circumstances are made at politically ~1aeecnntable
levels; that judicial review of such; emergency authorizations.
follows swiftly; and that decisions :toz-continue' surveillance
'receivethe same degree of scrutiny aspzdecisions:togini-tiate, The
law does not permit me, under the rubric? of minimization, to
approve- :or authorize. alternative procedures-to relieve-
:goirernment of burdensome safeguards expresslyi?mposed ?by
the statute. 7 

  

Judge Vinsonwrote-that he was mindful ,of the government?s
argument that the. preposed minimization procedures Were necessary-to; -
provide orienhahclezthe ?speed and ?exibilini? With ?whieh?the-NSA reSponds
tertithreats, and that fereig?n "intelligence reinformati'OH maybe lost in  
it-takes to obtain Attorney General. emergency authorizations. Hiowever,iin
Judger'VinSOn?s View, requirements re?ected a balance; str?uClt by
Congress between privacyin-terests and the need to obtain foreign
intelligence intermatien, and until Congress took legislative action on FISA
toresponditovthe government?s concerns, the Court must apply-the statute?s
lHe-eonclude?d that the g0vernment?s application sought {to
strike a different balance for the surveillance of. foreign teleph'e?ne: numbers
and email addresses. Vinson rejected this ?provided that
the surVei-llanee iswithin FISA at all, the. statute applies the same
requirements to surveillance of facilities used overseasas 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 authOIity, or this Court?s

jurisdiction over such. matters.? 

303 JudgeVinson wrote in a footnote. that the status of the proposed Surveillance: as
being withinthe Scope of FISA was ?assumed, but nOt- decided, 'for purposies of "this-order
and opinion.? He continued, believe that there are jurisdictional 
application of FISA to communiCations that are between or ameng parties who are all
located outside the United-States.? Judge Vinson suggested that ?Congress should: also
consider-clarifying or inbdifying the scope of .FISA and of this 
regard to such facilities . . . Bradbury told the OIG thatJudge VinSOn?s suggestion was
animportant spur to Congress?s willingness to consider FISA m'Odernization legislation in

(Cont?d.)

 

 

 

 

"to dircct Surveillance

 

 
d?l?iSi'on  one and, th'at?th? ?canfiirmedour
con?rm? about going to theiFIS? "Court]f.il? Said he: beli??lcd the
decision was? ?troubling for purposcs?norfi'thc- national.  enfour 


Judge Vinson-3? ruling-i. including"- appealing-thc-dcciSiOH to: the; FISA Gourtr of

Reviw,   said? the: to --Iatt?mpt 130- War-k with.

I

Judgemnsonsto craft  know-application and "discs-Separately to; foneW-"the

Administration-s efforts- to obtain legina?onatomodernize;141?th

G. Revised Ranewal Application for Foreign and.
Order 1'    

     

As; suggested by Judge VinSOn,_   2.07: the J?s?ce Department
Obtained ?iJUd?g'B {Howard anextension  the.exi.$ting fereign- selectors
order 'un?li?MaY 3:11,: 2007, to prepare. a revised ereig?? sclecitOfS'r application,
 interim, ?the 1D apartments?led, two-?rqportsawim Judge . Vinson-
d-eScribiT-rlgv?t new aPPrOach :to ?foreign: galactors that addressed ?ihegoncerns
?meg-swim his" O'pimon? and that Sought~inpuwro.m the court abouthow
533,1; . .: would?seekauthor?y

 

 

       
  
 
 

  

 

On May24, 2007,- the Department ?led? aiitev-irsjed'renewal application
sacking?to..renew, Withmodil?catiions; the; 
Howardn January 10., 2007,. Ordcr. Hzowaver, mesapplicationdidmt

and instead: {Sought aumarity to

include: the. broad construe-?Lion of ?facilities 
't'es telophonc?
3?3014' The application

conduct ?l?eCtmnic?! ..
able clause standard?:fapprovcd

   
 
 
      

  

and ?*e?ma ..
also did not inCh?Ide the ?prob

 

 

the-summer of 2007. In Sectioan below, we summarize this legislation, the Promct
America Act, and its successor, the FISA Amendments Act of 2008. 

304 According to the

  

May 24, 2007,. application, such. uses inc} 
and from a tareted ewma?il ?address 

    
  

 

accordmg to  
autho?zes, electronic Sumo-lance using [thereem
to identify this type of facility,? - - - .

 

  
   

   

 

 

by Judgex?l?low?ard that had the: effeCt of-sihiftingifmm the  Chart to: the.
 probable cause: determinations sab'Qu-t? particulaf 

 

the targets of the governmenf?? revised application remained
selectors .(telephone. number ands-email facilities) reasonably belieVed tobe.
rused-aoutsideithe United States-rand .for'Wh-iCh thE-re si ble?iea to

beliexiewer?beinused  

 
 
    

       
   

131,133, 
WE. .

,eci?ficallyl the application requested authority to? direct; surveillance
ateg?ories of liareign selectors;

0 Foreign telephone knew;
to  merit. This categoiy accountEd fora particle of the
foreign selectors all-read under Survv?eilili?ance

   
 

305- The May ?24, 2 007, application explicitly-stated that the: government was not
seeking surveillanceauthority for any new facilities reasonably?belieVed?gby the?NSA.tobe
usedby' {Therapplication?stated that'snrireillancerof thosegfacilities ??buldgbe
ir?'ti?ttitil ?51111? emergency taumorimtidri "71?0" '7 i REEF-193A

      
  

b1,
b3,
b7E

ed an appendix with the revised renewal application
 acilities and contained the factual basis for theNSA?s
belief that eac 1 am. 1 ies was being used by a person outside the United States and
for-Which .there was probable cause to believe were being?usedror about tobe usedby a
member- or agent of'one of the targeted fereign poWers. The government had provided
Judge Vinson these facilities on a rolling basis during? May 2007 fer his consideratioIl. The b1 b3
discontinUBd the surVeillance of facilities that were targeted under Judge?HowaId?s 33 
Order, hilt that were not included among the facilities submitted to Judge Vinson for- 7
- 'val told. the DIS that the decision to. discontinue these
  facilities largely was a resource decision-and that 
was the arriourit the SA could timely process for filing with the 0911M. 

 
  

 

 

 

  

 ?Foteignemail -:sele-ctors (not telephone number selectors);

ptesently unknovvn to the'government but that ?refer to? ornare
"about?" knoer foreign =e?jrna?il selectors. This .categoryof
-surveillaneez, which the-NBA. had? been conducting under Judge;
Howard?s ore-n inelues situations where  already targeted
email-facility is men-timed? in the-body ofa message betWeen:
two thi'rdepa?rty, non~targeted 

    
   

According to. the application, 
serveiilance would, enablethe NSA to    ,7 
?with. the speed and. agllity necessary to obtain vital
intelligence  to "detect and prevent terroristatta'cks.? The-application

 

Theeoilection' authoritiesrequested-in the renewal application that
Permitted  Currently unknown facilities would, according to the
application, address this .lirnitation.3~09 

Judge'VinSOn granted the government?s revised renewal application

May'S'll,? 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
acquiredbecause they contain the targeted e?mail selector, and not becausc there v'vas
probable cause to believe the e?maii accounts sending or receiving the communications are
used or about to be used by an international terrorist group. In such cases, the
surveillance is at? the targeted email selector. The government argued that
such acquisition was still consistent with NSF). 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."l . 

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 1805(c](3) of. FISA. That provision imposes specific reporting
reguirernentson the g0vernment-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.

 

   
   

 

circumstances under which the SA couldacqui?re-

 
 
  

CDm?hicationsfalling wighi? the.
51150 lin?ud?d reporting 
 at??gb??sof :survema?ce, for which the government was require to
 select-crate the .T 

 

 
  

idlidg?  initially approved

ore-lien. seleetors
underithe?ite?rms of his Ma  Order (theseselectors; were submitted
2007, Shortlyafter theorder
was issued, the FISA Court. dedidedthat the Weekly rcports ?led by the 131,133,

 

.government?notifyiing- the Cdurt of?newly? discovered Selectors, as well as the b7E

gov?ermnentis- motions see?kingapproval? to conduct surveillance on
additional selectors, coul be filed for review with any member of the 
 tbsp-government. received feedback from judges on the first reports and.
modems that?were' ?led, itobs?ervedl that judges were applying a more

3- sUrveillan?c-Je
for each selector than ..Judger Vinson applied th    selectorshe
approved; government consequently adjusted amoun of factual
information it provided!  e7 IS (3 ubsequent reperts and motions
 ,ulti?rnatejly'added foreign selectors to Judge


rigorous standard of review to ?the factual basislsu 0 0 a 

     
  

 
 
 

?Pi-?CC?Ording to Bradbury, the more rigorous c-rutinv
Gourt. judges rafter Judge Vinson?s- initial appro'v 
caused the .NSA place: Only a fraction of the foreign 

. pplied- by JFISA
foreign selectors.
are under coverage 131,133, 

   
  

 Wanted to.. This concern, combined with the comparatively laborious b7E
process roe targeting foreign selectors under Judge Vinson-?3 Order,

accelerated the government?s efforts- to obtain legislation that would. amend

FISA to address the governinent?s surveillance capabilitieswithin the United
Stateswdireeted at per-son's located outside the UnitedStatea The: Protect

America Act, signed into law on August 2007, accomplished this objective

  

  

   

email messages containing a targeted e~ma11 account only when the 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 beingused, or
was about to- be used, by one of the targeted foreign powers. Judge Vinson agreed with the
government?sposition?th?at there Was probable cause to believe that Internet
communicationsrelating to a previously targeted e?niail facility were themselves being sent
or receivedby one of the targeted foreign. powers and could be acquired. Judge Vinson

 1, b3,
b7E

helding ?novel,? but concludedthat the decision-was ?consistent with theaove?rall

statutory requirements; it requires the government to report and provide

appropriatejusti?cation to the Court; and it supplies the Government with. a necessary-
degree- of agility and flexibility in tracking the targeted foreign powers.? 

 

 

 

 

.- i i dqu The.
. I [EC-ifermnent therefore did. renew the-'Orderwhen it expire-don
August??r; 2007.. . -

  

In the next section, We summarize the. effect of the Protect America
.succeS'SOr legislation, the FISA Amendments Act of 2:008. 

 ThecProtectAmerica Act and the FESAArnendments lit-cit- of
200:8 

Iii-August 20,07, the Protect- America Act was enacted, amend-ingsFISA
'to-address' ability .to. conduct electronic :surVeillance in the
Uan-ited'States of persons reasonably believed to be. heated-Outside. the
United States. This on. February 2008, but Was
extended by Congress to February 16, 2008. In July 32008, the FISA.
Amendments Act: of 12-008 was enacted, which, among other things, created
-a,;epmprehensire process under FISA for-content. collection directed at
foreigniftargets, 'TheSe twol?aWs modernized the FISA statute as- it applied to
theacquisfition._ in the United-States-vof communiCations of person-S
reasonably .believecii} to be Outside the United States. (Ur)

AslgdiscuSSed?inChapter Three, PISA was enacted in 1978 When-mast
international .callswere'carried; by Satellite. The interception of such cal-17s
cd?'stimted ?electronic-su-rveillancei? .fOr 19111790368 of FISA only if the
acqui,sitien intentionally targeteda :Ugs. per-son in the United States, or if all
participants to the comunication Were located-in the. United?States; Thus,
government Surveillance .Of satellite communications that targeted foreign
person's: eutSide. the: United States generally Was not considered electronic
surveillance, and the government was not required to obtain 'a FISA Court-
rord?er authorizing the surveillance even if one of the parties to the
communication was in the United States, However, in the mid-?19808, fiber
optic technology began to replace Satellites. as the means fOr
transmittinginternatiOnal [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
surVeill'ance that it previously conducted outside of PISA. 

    

Under the Stellar "Wind roram, the SEA-collected international 
 1, b3,

b7E

 

selectors)?? A's; n?ote?cli'in Chapters Three and ?F'Our, the-?Adniinistra-tiOn
eon-tended} that..FISA,- aesupplernentedby a subSE-quent legis?latiye.
enactment (the AUMFL did-not .ipreclude. the surveillance:aetivitieS- under.
stellar-Wind, er in the: alternatiVe represented an unconstitutional
infringement on the-President?sArtiCle authority as "Commanderin Chief

toitther eXtentit con?icted With these collection activities;

 

. Thedustice? iDEpartment?s effort to transfer; content collection from 
-preeidenti'al authority under stellar Wind to. PISA .raiSeid? the issue "of ?liFI'S'Ai?s.
application-r to the: acquisition in. the UnitedSt'ates oficornniufnicatio?s to or
fromqtargetedrforeign selectors. The ProteCt America: Act and the 
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 1   

   

 The Protect AmeriCa Act (U)

TheP-rotect? America Act of 2007', Pub.pL. No. was a temporary-
measure Signedinto law on August .5, 2007.313- The?Protect America Act?s
chief objective?) was to exclude item the requirements-ofFlSA the.
interception  the United States of communiCation?s' of. perSQl?lS located
outside the UnitedSta?tes, the Category of communications?referred to above
as ?fereign, selectors? (U)

The, Protect America Act amended FISA so that thei?interception of
fore-ignl-seleCtor communications fell outside thep'statuteb definition of
?electronic surveillance.? Under the original definition of?ielectronic
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.3-l4 ISA also

 

311 The NSA also targeted under Stellar Wind a much smaller number of facilities

located inside the United States (domestic selectors). 

3? 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 1 and II of this chapter.  

331-3 The Protect America Act was set to expire 180 days after its enactment, or on
Februaly 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 occi1rred. However, no agreement was reached 011 new legislation and the Act
eXpir?ed on February '16, 2008. (U)

314 The original definition of ?electronic surveillance? included:

(Con 

 

 

    

 

applied? to :?isacquiiSi-?tion of other communications tsuchras



.fC?l?I?H?-ica? he acquired by'taITgEting the if .

the communication and; thervauiSition
occurred" inside the- United States, (U)

 Protect; Acre-mended PISA by Stating-:- ?Nothing in the

definition-of electronic surveillance .. . .   encompass

surveillanee direoted Eat a personreasonably believed to be. located 

the United States?" heeffect of: 

requirements of PISA anycornmuniCatiOn acqt?redfiby targetingcagforieignl
selector, regardless of: Where the Communication WElSi?t-It?fcepte  or whether.

the communication traveled?  wire. As aresult,? the Acteliinjin'atedgthe

need 'for. Judge. Vinson-ls: May 2007: torreign: selectors Order, because the
collectimiof communiCations targeted under that-Order no longer:
constituted ?electronic surveillance? not longer
requned PISA Court Order?s??lS:   

 

 the-acquisitionby anelectronic, mechanical, 0r 
of the contents of any wire or'radio cornzmuniCatiOn'sentihy' or intended? to he
recanted toy-a partid??ffkilOWniUHith Statesperson,Whetsin the United
:States, if theCOn?t?en-ts are :acqilired'lb?y- intentionally. tar'geting?i?thataUnited
Statesrperson, under circumstances 'inWhich a personhgas -a:-reasqnab1e
'eXpectat?ion ofp?r'ivaey'and?. a warrant would "be requiredior'flaw enforcement
?pui?bds?s;

(-2) the acquisition by; an electronic; mechanical, brother- SurVeilla'rioe {deviee
of the contents of any wire communication to or from a person ?in the United
States, Without the consent of r'any?party thereto, itsuoh .acquiSition occur-??.
in. the United. States, but include the. acquisition ofjthose
communications ?of;computer' trespassers that" Would 'be'apermissible' under
section Of Title 1-8;

(3) the intentional vauisition 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 ?p'riVacy
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;
or

(4) the installation or use of an electronic, mechanical, or other surveillance
device in "the United States fer monitoring to acquireinformation, other than
from a wire or radio communication, under circumstances in whicha person
'hasa reasonable expectation of priTVacy and 3. Warrant Wauld be required for
law enforcement purposes.

.59 use. a 1801(1). LU)

 

 

 

In the place of individualized PISA Court-Orders, the Protect Americ a.
Act also"in'serte'd'several previsionsainto the FISA statute ref-govern 
acquiSition- retoommunieations from perSOns ?reeseneb?ly believed to. be
Outside the United- -States.?? These-previsions authorized the heresy
General and the Director of National Intelligence to-acsqnire foreign
intelligenCe?Zinforrnation concerningsuCh persons to: up? to one Year,?
previ'dedithese officials certified that   procedur?sfin.
p15ace.r.cfor the-government to determine- thata target?  reasonably believed to:
beoutside th'el Uni'tedVStates and that the acquisitien :oifz-the foreign
intelligence therefore is mended.
definition of the ten-11,316. The accompanying- the:
certi?cation had. to be: submitted to the FISA courti?orappriovat, based 0n
the clearly erroneous standard, Within 120 days .?o?fthe Protect America: Act?s
enactment. However, the certi?catiOn was. nOt. required to identify'spec?i??c
facilities or places at Which?the acquisition-of foreignlintelligence'
(U) I 7

. In addition, the Protect Americanct authorized the Attorney General
and the. Director of National 
carriers] to provide the government with ?all:
and assistance necessary to acc?ompliSh the
acquisition in such a manner as Wiil protect the Secrecy of ?the
acquisition. .. Protect America senses. The Preteet=-Americaaet
also. authorized the Attorney General of National

   
 

 

The Protect America Act addressed this issue byexcluding-all
ditch:th at persons reasonably beheved- to  Outside the United States.

315' The Attorney General and the Director of National Intelligence alsoahad to 
thatthe acquiSitiOn involves the assistanCeofaa communieatfons service_provid.er; thata
?Signi?cantipurpme? of the acquisition to obtain foreignintelligence inform'ation-is-ifor
foreign intelligence. purposes; and the minimization procedures tombs used with the"
acquisition activity compart with 50. Pretect AmeriCa-Act, Sec; codi?ed.
in FISA at?SO (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.
persion 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 fOIeign intelligence infonnatien "from- targets outsidethe United States) were
still subject to FISA as it existed prior to the Protect America Act. The BrotectAmeri'ca Act
also previded, by means of an tiopt?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. 

 

 

Intelligence. to? seek the assiStance- of the?  Courtcto compel compliance
With stash]. directives, and implemented proceduresfor 
teliecorrir?il?icationsv carriers: to challenge the legality 
directives-?3? m) 

the Attorney General 
     

3 up to one year-targeting poisons .reasonany- believed to-

 

seaside  ?sf. Thesejjordersremained-1h; effectbeyona;

expiration-arms Proteot-AmeriCa Adt on. February ?16, 2008.. 

On August I0, 2007., the Attol-ney General and 
 intelligence ?led? a certification  the Court, 
11mg: the; Protect AmeriCa :Acftp relating? to surVeillanCez-of persons-
ire'aS'Qnably'bel'ievsdrianaemia b1?
b3,
b7E

       

         
   
         
   
 

 as directive

 . s' for" aesiStanc-e to specif
?on.s"carr1.ersg.a

 

reign selectors-under Judge Vin-son?s - Order
were ?rolled over" tos'the'hew Protect America authority.  Deputy
.Aesi-Stan-tmtorney. General in the National securiw 
Stellar?wind to .FISA Court authority told-us that: the:
_1gever"riment also began to. ?build new selectors? under the; Protect America
Rota-no Worked. toward restoring the: un'iVerse Dijforeign selectors. that were
first ant-horned for taSl?in?gfunder Judge Hewardts.  20.07" Order
 contentcollection under Stellar to FISA
Court ?authority.- I7  i. 3  

b1,
b3,
b7E

   
  

Although the Department viewed the .Protect America Act as an
a_dequate?tempora1y fix to thoseprovisions of seen are outdated
because ofchanges in telecommunications technolOgy, Department officials
continued to press Congress for more permanent'modern-ization legislation.
(U)

 

313 The Protect America Act also stated that any person providing assistance to the
government. 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
retr?oaCtive' legal immunity to any ?person,? a term defined: in FISA to include ?any group,
entity, assodation, corporation, or foreignpower,? 50 U.S.C. 1801(m). On August 22,
2008,, the Court of Review upheld as constitutional the Protect America Act provision
arithor'iZing;the Director of National Intelligence and the Attorney General to direct a persOn
to (assist the gDVernment in'implernenting the Act. ?S?eeln Re: DireCtiv'es? [redacted text]
PuISuant to. Section 105B of'the Foreign Intelligence Surveillance Act, No. 08-01; (U)

 

 

134- The MESA- Amensments Act of aces (U)

 . .011 July 11,2008, the-President signedthe Foreign Intelligence.
?S'urveiilance Act of 1.97 8 Amendments of 200.8 Amendments Act).
This composed :of four titles, replaced the ProtectA'meri'ca Act
Similar surveillance authOrity; The provisions
FISH Amendments Aet-eXpire', With limited enceptions,uon

December .31, 2?0 .1 

A'chief Objective. of the Amendments Act Was to change the rules
for intercepting "the electronic communications of persons rjeaSonably
belieyed to be outside the United States When the acquisition ofccurs in. the
United States. As discussed abOVe, the Protect America Act accomplished
 de?nition of surveillance? to exclude this
activity from FISA requirements. The Arnendments Act took a different
approach. Instea of eXclu'ding the activity from thestatute?s definition of
?electronic. surveillance,? the FISA AmendmentsAct created a new title in
govern how the government may conduct this =electr20nic'
Under this approach, the FISA, Amendments Act, unlike the
Protect America Act, distinguiShes between the and
 personsreasonably believed to be outs?idethe. United 'States,319 (U)

For persons, the new title created by the FISA Amendments.
Actprov-ides for surveillance authority similar to the ProteCt .AmeriCa Act.
In'Stead of requiring the government to obtain individualized Orders. item the
Court to intercept communications persons reasonably
believed .to be outside "the United States, the FISAAnn-endrnents Act.
anthorized 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
targetingprocedures designed to chaurethat the new authority is not used

 

319 The Senate Select Committee on Intelligence (SSCI) prepared a
section?by-scction analysis of the FISA Amendments Act of 2008 explaining the significance
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 However, 'a consequence of the term?s redefinition was to broadly
exempts foreign surveillance activities both of non?US and US. persons outside the-United
States, The FISA Amendments Act of 2008, instead of adopting the Protect America Act?s
modi?eddefinition of ?electronic surveillance,? explicitly stated that the targeting of 
non-US. persons outside the United States shall be conductedunder the new 
prosedures, which docs not require an application for a FISA order. In this way, the FISA
Amendments AC1: accomplished the same goalas the Protect America Act Without
exe?mpting?the targeting Of US. persons outside the United Statesfrom 
individualized order requirements. (U)

 

 

 

'toldirect Surveillance-atpersonswithin the United States or at p'erSOns
outside the: Unitedfstategoeo 

In contrast, to .condnet Uastabased surveillance" of  P-CFQOHS:
reasonablybelieved- to be locatedoutside: ?le United-States, the: FISA
Amendments Act requiremhe government to. obtain individualized-F1313;
courtrorders for 90?day. period-s based on. aeshoWin of .probable'r sause-=to
"holistic that the US. personis outside/the United a foreign-

asentofticer, ?or employee  

surveillance pencils-1y wasgoverniedhy Executivesorder 12333;, and.
required'only a- certification from HOt'the 
(U) 

Compared to-S?tellar Wind, the FISA Amendments Act provides the

[government brOader authority to acquire in the-United States with Court
 the communications reasonably believed: to
he-ElQC'a-tedioutside the United States.- Under'Stelglar Wind, the. NSA. was
anthoriz?ed to collect communications Where-there was probablexoause to
believe originated or terminated ontside- the United

States and  party?zto the communications. was; alQae'd-a a- group aff?iated

 Qa'edag. Under the FISA AmendmentsAet, the NSA is authorized i=9
colle'ct?i'n the United States any communications iof'vnoneU  persons.

reasonablybelieve-d, to be located! outside the: United States-,- provide
3 :aeqtiisnion pertaihsn:ts~foreignintellige eel;

 
   

    

 

 

3'20 Like the Protect America. Act, in addition to these targeting procedures the
certi?cationthe government is requiredto file with the must also contain
minimization procedures and. state that a signi?cant pierose of the acquisition that Will be
conducted is to obtain foreign intelligence information. Howwer, unlike the Protect
America Act the PISA Amendments Act does not limit the Court?s review of the
targeting procedures to a ?clearly erroneous? standard. On August 5, 2008, the
government submitted to the FISA Court a certification pursuant to the FISA Amendments
Act. On September 5, 2008, the Court approved the certification 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
g0Vernment?s antherity to conduct surveillance of US. persons reasonably belieVed to be
[coated'outside the United States. "The Presidential Authorizations did not diStii?lguish
betWeen and non-US, persons, and the NSA was authorized under Stellar Wind to
intercept the .communications of US. persons (domestic selectors) provided the-
Communicationsoriginated or tennin'ated-outside the United States.

   

 

I - 'urider-toc?yk?measures to identify and correct incidents
under Stellar Wind, and the government described the issue
v~  i  

 '1

 

 

 =?1G1ltnalysis (U).

As d'iis'ous-Sed in this chapter, the government?s effort to transition
stellar-Wind fromupresidential atith?Orit-y to Fisa, which began-in
2.00.4, eventually resulted in- all-?three baskets of colleetiOn being-authorized
by  While the-legal. theories supporting this transitionwere aggressive,
Webelieve; that theDepaIt-Inent could hays and should have-pursued 
transition as viable legal alternative; earlier?ian it did, rather than.
operate aspects-0f  Stellar Wind program solely under presidential
amnesty tor several years. if" i -  

 Chapte?rs'Threeand Four we dietzusseddohn Yoo?s 200.1 and 2-002:
memorand'a concerning the legality of Stellar Wind and his contention that
 represented an unconstitutional infringement on the President?s
authority under Article II. of the Constitution to.
conduct electronic Surveillance during Wartime. We recognize that Yen?s]
analysis Was to some extent a. response to the extraordinary circumstanCes
that Confronted the federal .gOvernnient 1? 1
'terroristattacks and its. effort to take emergency steps to.  what many
officials believed wasan imminent ascend wave of attacks. Yet, even if one
agrees: Yoo?s- Article II analysis  supports the decision to enhance
outSiC-le? the judicial or legislative process: the signals.3in.telhgence
collection capabilities, we believe there are Strong countervailing
considerationsthat favored attempting to transition the program to FI-SA,
especially as Stellar Wind became less a temporary response to the
September. 11 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,
theggovernment engaged in  unprecedented collection of information
censorning US. persons". The PreS?ident authorized the NSA to intercept,
Without judicial approval or oversight, the content of international
communications involving many US. persons and the NSA. collected large
amounts of non?content data about 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

 

 

Of  condUcted undersite?liar?Wind-322

 

as several Justice Department amid NSA Of?cials Commehtedi
the: FISH statute offered a ??rmer footing?" for the collectiohaetii?ties-
As: discussed "in Chapter  Four, the
veggie ssive? assertion of. Arti?cie  authority on which Stella: Wine Was basejd
r?e??eeted'the legal reasoning-hfaVSingleuJUSitiee Department attorney
 sane, Without?adeguete reviewer scmtinyiof  analySi?s!- :As' 
also "Co?cluded, thisl'ed to. a ?awed; legal analysis on which the program.
years. This approach also :ledLyto aces-tentious. dispute
betWeen? Department and White-House of?bi?als ?2004-inv01vihgarenewal of
aspects of-the' program? By contrast, the FISA statute prevailed 
alternatives basis fer Stellar Wind?like Collection-tactivi?es that we-?bcliever
should-have beenijeonsidered, andjpursued, much earlier by the

    

Administration.  

In this regards, the White House?s (strict central. ever  Justice
Departments assess to. the p?r?Q?grar-n, lessened the opportunity for lawyers.
With;relevanteXpertise? to adviSe the of '7
Working Within? the FISA statute. to achieve the? same - sperational obj estives'
as; theirSteillar Win program. Moreover, as the-limited nUmibe-ref
D?pai?trnent-readeins persisted, meaningfu1 consideratieh of as
to presidential authority for the pregram was" limited??-

 

 

.?322 For instance, under Stellar Wind the meta-data querying Standards-did Iibt
inelude restrictions on acqujr'm'gda'ta that may haVe been haSed of-
rFir-jstjAjm?endment rights. When these activities were placed under the FISA Court?s 
suPentiSioni the ?Ce?r?tvrequired that this adhere't'o the 
standard that ante-mail address or telephone number cannot be 
basedsolely'on activities protected by the First Amendment. 1 I

    

 

     
 
  
   

 

 

i  Operatiahal bene?ts *0 tra?Si?tioning-?Ste?ar

       

 

  
  

b1,
b3,
157E .
"Thetranisi?tion of Stellar Wind'to FISA authority, together with the

passageof the-?Protect America Act, allowed theNSA-to begin the pr?oceSs to

dissaor ?dc?compartment,? the Stellar Wind'prog'ram. Thischange, which

Was not completed? untilrnid-QOOB, has allowed agents field?offices

gee-tel? access- to information about the telephone numbers and e?mail

add esses being provided as leads. As described - b1,

I of agents who were assigned and b3,

 eadstwasthe lack of 'etailprOVided about nature or the. b7E
-  . "contacts and the foreign entity allegedly involved 

terrorism that Was one of the communicants. These details often were not:
provided because of the and compartmented nature :of the 
Stellar-Wind program. Now that such information is gathered under PISA
authority and notlcompartmented as it was under Samar-Wind, it is

at .arl'evel, that allows agents in FBI gain access to?

.addi-tienalydetails upon r?equest.324

We recognize. that Stellar Wind?s transition to FISA'resul-ted in the
=o?f-new reSponsibilities and conditions on the? exercise of?theses'
unprecedented collection authorities. In. Section 2115 Orders,
thezFl?SA Gourt imposed significant oversight measures that were not
required under Stellar Wind. To be sure, the government, particularly the
NSA, must devote substantial reSOuroes to ensure compliance with these
oversight measures. Yet,.we believe that such requirements are
appropriate, given the massivearnounts of data collected and the potential.

impact on the privacy interests of US. persons. 

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 first under Judge
Howard?s Order, and then more significantly under Judge Vinson-?8 revised

 

324 Chapter Six of this report discusses FBI agents improved access to
program?derived information under FISA after the Stellar Wind program was closed.

 

 

plaCedliinereasingly fewer ?fete-i-gn selectors deem-SA:-
Covera  compared'to Stellar Wind. ThezN's?A wasstasking
I. under Stellar olefin: .  
ationl-inDecember 27006:, but place foreign selectors under:-
reuneiillancecoverage under Ju'dgeuVinsons May 207 order; National
EijviSie-n of?cials told no that awfully added .
??l?pm?i?m?l under the   
Cou?t?S-?Order. . 

  
   
 

 
  

 
 

bl, b3,
b7E'

 
  

However, We believe that'suehfbro'ad:  andvveolleetion:
activitiesemanated in :the?UnitediStateSi, . parti'oularly? for neignificantspersiod
oftimc, should be conducted- pursuantto- statute - judicial oversight,
even though this -1-esnlted in a. diminution of foreign,selectors?duste-
resource .?issues. We also believe that placingthe activitiesn:under 
supervision provides  important measure of . accountability ler the
that is less, assured whenthe oneness-are both
 and supervised by?tlie' 

 

ll'n'. therel?weife A-compellingl 116330113 Lto 
beginningthepmeess-of transitio - - ?the lleetionactivitiesfof?S-tellar
FISA authority- earlier-ill I 004*. 
?pmgre-amfsah1-arge- Callection of information about  pet-30113;; 

  

?Warrantedkjudieial instability of the-legal reasomng on Which,
the program rested for seVeral?yesrs; substantial res?ictionS-plaeed
on FBI agents?iaceess to and use, to.
Stellar-Wind?s highly Classi?ed status. Vie-acknowledge? that {transitioning
Stellar-Wind?s collection activities tic?) been an enormously
complex  time~consuzmingieffort:that. rested. upon novel'i?nterpretationsl
 uses. of FISA that'no?t  judges-would: authorize.
Neve-?igtheless, the events described in this chapter demonstrate. that a full
transition to authority?Was achievable and, and iniour?jutl'gmenlt,
should have been pursuedearlier.  

 

 

communications in the United States of persons located outside the-United-St'a-teS,
especially persons. In this way,? transitioning Stellar'Windb contenticollection to
FISH helped the government make its cage to Congressin concrete, non?:hypothetiCal terms

   

for r'noclErnization legislation amending'the' statute.

 

 section I ef hischapter Summarizes. how the. FBI used

bl,b3,b7E

 

The-preceding,chapters examined the: evolution of the Stellar Wind
pregram and its transition from?Pre'sidential authorization to FISA
In this-chapter, We examine. 
 5  Stellar ?Wind   impact theprogram had on. FBI counterterrOrisrn-

  
 

areas; .

thecodename for-thepmject, :Classi?e'd 
brag-that zme??FBI-?iln? ated in {September 2002 to disseminate Stellar Wind
informatiOn to FBI field ?offices in a'manner that did not disc-lose the: scurce 131,133,
ofitheazinformetien or the means 'y which it 'Waslacquired. The FBI b7E
originally Opened  s-anaadrniniStrative file to serve as. the:

rep" ?sitory' fer :a-ll eemninmeations FBI Headquarters disseminated in F131

field offices relatingto Stellar Wind as well as all
communications FBI Headquarters-received from ?eld of?ces reporting the
?Ifeslults cfany investigation Conducted in res.ponse- to the ?tipped?
intermanon originatingfrom Stellar Wind; 2006, the FBI.
 investigative  under the narn 

 

   
 
 
 

  
 

dieseminate Stellar Wind infor-matiOn- to FBI field offices.  1

describes: the decision in midaQDO'S to make its h?eaquarterssbased 131,133,

Communications Analysis Unit (CAU), instead ?eldef?ces, b7E
uing?Nationa'l. Security Letters (NSL) to obtainisu?bscriber

t' phone numbers (beeketQ of Stellar Wind) disseminated

I i 39-7 section discusses the role the FBI played,

beginning-Tin apprexirnately 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 first provides
statistics concerning the number of tippers the NSA derived from Stellar
Wind information telephony, email, and content disseminated to FBI

 

  

  
 
 

preceded by th b1, b3,

25 As discussed in Chapter Thre I 
 and dissem'inate'Stellar b7E

the FBI created in October 
"Wind?s?deriVed information. 

327 The CAU is the successor to the Telephone Analysis Unit which the FBI
created after, the September '11 terrorist attacks. to analyze telephone communications. The
CAU assumed responsibilities in late 2002. 

   

 

 

 
  
  

field ism-6637 thrOugh   
field gef?ces generally?hv 1D

. tippers-sand 'typieal?restilts
 investigations. The section "'z'egsv mo {statisticalSurveys
softneta data tippers the lessees lithe ,valuelefi_8t?1?1ari
 :to RBIs-operations, and-describes- iobse'mations?? .abeut the program?s.
contribu?on and. value previded wile-BI Qf??iels and employee: in 

      
olf  review reddiitieni. the section teeamhles: .FBl?intema?onf?il
terrorism investigations commomyastea as example 5- ?stellaritrindf?s
contribution to countertermrism Statesezs

 
  
 
   
 
 

 

Lastly, Section of this chaptercontains the GIGS-analysis. 
Impact on FBI operations; 

process group of FBI. employees,

gm 1 as  10;?    
fullietime- to the. NBA the ?Steller Windi'pmgram?gg?  i130, Was
described its. as ?curtain? be-tWeen :S?teller?l?lindend? the
141131., in  10?s chief reisppn?Sib?itywas to disseminate:- Stellar
Windj?derived information to,  "field of?ces 
disclosingthat the Was  sf the    the; NBA
acquiiredth'e information.  - ?1 

   
 

  
 

from 

  
 

Team 10 initially was staffed With-two{FEE-special agents" (bne?Df
W.th served as superVis?e?r); and two analysm;   subsecmentiy
replaced one agent position with a; analyst-.7 later-addedba fourth
analyst. At the NSA, Team 10: Was 'oonl?eceted :in? :a tangmpen. Space-with
eczema- of NSA and. other Intelligence  personnel assigned to the
Stellar Wind. pro gram?. Each team member wasprov-ided a computer with
direct access to NSA information ass?OCiated?With Stellar-Wind- 
tolci the OIG that Team 10 members werke?d at the NSA under the authority
of the NSA Director and as such Were required to adhere to SA
minimization rules and attend the same training employees. Tea-In
10 members also were provided access to Stellar Windwrelated systems and

 

323 As noted above, our report examines the role in the Stellar Wind program,
 does not review the use of the-program byethe'r ag?ncies,. such as the CIA, 

329 The CAU is organized into ten teen-131 nineof whiCh are responsible for providing
communications analysis suppert to speci?c field of?ces and (Legat).
According to an. FBI organizational Chart, Tear-r110 Supperts ?OE-Site, Intelligence
Community Special Projects.? Team 110 was exclusively responsible for managi 

  

 

  

 

 

b1,.b3,
b7E

bl, b3,
b7E

b1, b3,
b7E

b1, b3,
b7E

 

 

data-5136s,  had. access 'ftQm' the-ii" comp
. automated Case Slippert (ACES) ?SYStem-a'n

     
   
 

  
  
    
 

process unde 
l'rmatieh was the FBI eStahlished under the
?escribed in _'jh-apter Three. In short, the NSA providedTop.
Secret: joorhpartinented "Stella-r Wind. reports-to Teams 10?, Wh'?  .
converted the information into Secret nonwcompiartmented
electronic e0? I EC) and?di$eeminatedg the comm
.Ingerred,_to as tippers,? to FBI field of?ces for appropr-1ate
aetion?a? The grocess was applied, with some differences, to,
each three "?t?nasliets?J 'of information. The vast majority of
Stellar Wind reports involved the NSA?sanalysis of telephony meta data 
thati?sl, ?hasieginformationsueh- as date, time, and duration, about contacts
between foreign  domestic telephone?. numbers .forwhich the NSA

determinedthere was a reasonable articula'ble suspicion to believe were

  
    

 
   
   

 

related to.  Qaedaor an affiliated 

   

gC?ir1c11,Ided a paragraph that summariZed the

 ?rejeet?farid explained that the GAU Could not disclose the

source. 0, enformation cont ?'ned' in the EC, but that the information

cattleefromra. ?Sensitive and highly reliable? Source. Each EC also-ineludeda' 131,133,

 :etidvisingthe?eld of?ces that the infermation provided by the NE

7 ource. could he used for??1e?ad purpoSes only? and .oould'not-bie 
era into any d?davit, court proceeding, FISA application or

 
 
   
  

 

   

 
  
 

 

 

 

  
   
 
 

unclassified? In addition each
?lead? "that instruCte'd the ?eldaoffiee what invest

 steam-?ding ?ie informationprovided; further desCribe

Ends-  of?ces? handling of them in 55051011  of

  

  

   
     

 

Before  disseminated Stellar Wind-ideriwd information to ?eld
of?ces, an analyst. queried FBI databases for relevant information abouttheJ
 eemail'address, or individual (in ?iercaseof mutant
repert) "identi?ed in the Stellar Wind report; These queries often identified,
 example, subscriber information the FBI previously obtained? for ?Stollar
Wind. telephone numbers as part of a prior FBI 'inVe?stigation, :or active
Cc'u'riterterrori'Sm inve stigati'ons in which the subscriber to a Stellar
.Windatargetecl number was the'subject or  whiCh the number, and 
:snmetinies?qe-subscriber, Were referenCed. Team 10 also checked
 and commercial databases, most. commonly in conneCtio 

1* "-Th as Checks sometimes identified 
and  domain names the User. 

b1,
b3,
b7E

 
  

  
  
   
  

  

  
   

 
  
   
   

    

 *informaaon?ream lOloeat I
 a cellar .telephOne-number-Or eama'ii address was
included in the
Comment? to _-d_1f I
provided by the Stellar. Wind source.?2

 as a Comment? 0r arr-?Analyst
rate the FBI. information from the inferrn-ation

 

Overtime, Team 10 began to do more than: receive and disseminate;
programederived inferrnation. For example, Team 10 occasionally submitted
telephone ,rijurnbers. to the NSA for" possible querying against the database
containing the bulk telephony meta. data collected under Stellar Wind.333

 

3-32 In this respect, Team 10 handled Stellar Wind content reports.differently-from

meta data. reports. Team. 10 typically did not perform additional analytical work b1, b3,
on the information provided in Stellar Wind content reports other than to identify any FBI b7E
cases towhich 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
Wind information and the relevant FBI investigation would be reported in 

333 As described in previous chapters, the purpose of the bulk collection elf-meta.
data under Stellar:Wind was. to allow the NSA to use analytical tools such as contact
chaining  to identify known and, unknown individuals associated with
a1 Qae?daor-anal Qaeda-affihate. The technique involves querying the telephony or email
database with a-nur'nber or address for which an analyst had a ?reasonable articulahle
sus'p'icion?lto beli'eVe Was used by persons involved in al Qaeda Oran al Qaeda affiliate, and

then examining any cont-acts with that number or address..~ 

       
 

      

 

 

Theit?ephone numbers Tea-m 120-previ"eatypiea11y were-obtained from the. 
 de?mes?e and ensue-1.1 'as?a I
 . Li?umberide?tificd during a monitored-under FISH a.
number addre?Ss beck of a -suhjeiit-arrestedabroadr The: Nsa
- - ?e'enduetedz-independent analysiete 
 . (or 'eema? addresses) provided by:  tom-er ther-queryingetandard'y
 . by. the -Pre8identiel Authorizations  gamma.? Stellar Wine
 to believe. that communicatiens
  telephone, number relate to a1 Qaed'a or  

     

 

Team 1-0 contributed to the 
Winderepo'rt?s. Telephone numbers and "E-I??aill addresses identi?ed through
 contained; the bulk teletahony and email-meta.
data were reviewed by .N-SA to determine "whether ?re-contacts
sliauld'bewreportedto the FBI-inn Stellar W'indrepert.  ?10?
this: process byreviewing draft reports and. providing any
reiteration from FBI databases-that might be relevant to this
- -

 weretold that-one. of the'benefits 95f? l'Ov?S?preSenCe. at the.
  its invalvement in the Stellar. Wind report. drafting; process Was: 
restatement. in? the: quality of the? infonnatien disseminated to F1 field.
offices; the FBI Supervisory Special Ager?i Who-
'suspervi'SediTeam 10- from April ?2'0'0'52?tddu1y520i6teldthe OLIG that he tried b1, b3,

?59  the reporting of telephone numbers that. were-several. hops b7E
removed from thepte?letahone "number linked-to  Qaeda or an af?liated,
terrorist group. He. saidthat he wanted Team 103tof ?di?sseminate;?ssolid 
numbers  value,? not numbers with. iquestionable: valuesueh-as?high

ublic telephones,- for'eicamplie) an
The FBI SSA- Said thatthe NSAeXpre?sse?d the-Concern

 
 
  

 

 

 

334 Team 10 submitted such telephone numbers to the NBA electmnic'a?ly
thr0ugh ?Requests for Information,? or RFIs, which is the formal process by which the FBI
and other agencies provide leads and request information from the Stella-r 
FBI indicate that from April 2002 to January 2006 the FBI directed
to for possible analysis under Stellar Wind. The recordsdo not
indieate ?thedisposition of each RFI. 

335 The SA deVelopedformal ?checklists? to guide the Stellar Wind report drafting
process for telephony Thetcheckli'sts include over 30 steps that NSA
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-
A signi?cant feature. of the checklist from the perspectiVe
was the requirement that NSA. check any telephone numbers and emailL addresses
inja draftrep'ort with the FBI and ?make best effort to include FBI . . . data 

 
    

 

 

 

that itcourld not faresee whether any particular-Contact;although. remote,
peeve nut-the next; terrorist attack, and sides:  .t'o'i *findgiteelf- 11:1: i-the
position tat-defending its decision not to pass that number tattle 
However, she- said t' fimprove-the-quslity of!
information such as for the domestic. ceritacts that
were eludmg'ana?lyneali Judgm "ms about the: e_ontaets:336

   
   

AS: discussed? in: Chapter Five,- the acternmentitansitioned Stellar

Winds. bulk email meta. data - Collection;(basket 3) to FISA  July
 the-Pen, REgis?ter/Trap  Trace Order, hulkgtelep?hony ineta 
22) inMay 2006 with the: -'Sect~ion 21 Business -
Records order, and content-collection {basket in January'2'007 Whenthe
granted the government?s domestic-andsforeignse'leCtors

 

applications.

However, after  transitionwas to
produce reports-within? the stellar Wind  to
pres-gem Customers, ever-1. though the information- e'cpntairnedtainnthe; reports
was; derived fromithe FISH?authorized. collectio?act?ivities. 
the-FBI continuedito disseminate the mformatibri 
process, The-current Team 10 supervisor told us that this on,
after?eonsu-Itation with the. Office of the Grineral/Counsel (OGG)
made to adhere to the. FISA Court?s centi-nuingrequirement that
international terrorism applications he s?Crub-bed for Stellarth
infermation (the procedure for which is described in.aSection.I5II.-of this

The; NSA received permission to begin thelprOCCSS to close, or
?Fdewcornpartmentf? the Stellar Wind program after Act.
 as passed in- August 2007. In midi?2008, the NBA Of?cially clo-Sed the
pregram and discontinued issuing- ?Stellar Win? 
2008, F131 initiated a new investigative file,
dieseminate the NSAt?s-FISA?derived infOrmat-ion.337

b1, b3,
b7E

  
  

 
   
   

 1? was

   
 

b1, b3,
b7E

 
   
 

The Team 1-0 supervisor

 

335 The NSA told us that one of the difficulties it faced with the Stellar Wind
program was that the NSA was serving two customers -.- the FBI and the CIA but had just
on set of reporting guidelines. This was so because the NSA traditibnall doesvnot. rovi'memorandum explaining the pro

b1,b3,

dumstat?d thatas of Au b7E

national Security inVestigations-related if
individualsb'elieved to be associated. w.

 

 

 
 
     

toldusftha    thee-*IFBI?  
Whattioepmted. nude. 
I difference?is that. the; FISAe'd?erived report 
 ens-ate ?at the  b1 b3 b7E
level,  nut subj?eCt;  Wind 

 "si?nati'om :si 1 operational

?standnointe   elacat-?naonlyinduc:

information ause the FRY-s,primary-seornputer 

   

    

     
 
  
  
  

 for: ?eannot?b? used {for Toast-30m?
-  field of, we now

   

request-?actessito diditi?onalihf?tmetid?513W .. . ., .,
agent?s hate the appropriate?clearanee' .AS?diS'cus  ed fin-Chapter Three. and
addressed below, the chiefer-?itieiSm-l    I
detailed inform-mien that could bei?proVidedato ?eld about tippers

because- thefhigltl'y compartmented Hammad/Stellar 

 

   
    



Fromaugtmt. 2003 tor'No-x'reember: ?partvof?th
process-the CommunicationsgAnalysis espensi 

from-the. afield-offioes for reuestin? ?Natie?al ebtain- 131,133,
subscriber information for emphatic-numberi?pperse?g T113 - b7E
were: gut-horned by the Fate;  faridi?TISSued pursua?tto the
projecr. As discussed below? hammer, 
'applicable'FBI investigative  because as opened :asz-a
noneiavestigative ?le and therefore iunder not haire- been
used as the basis for issuing  

 
      

   
    

The FBI uses NSLs to obtain information thirdi?p'arties suchas
telephone companies, financial'ilnstitutions, Internet service providers, 
consumer credit agencies. authorized by'?'fiVe speei'ficlprovis?ions
contained in four federal statutes, direct third parties to provi?dercustomer
account information and transactional records" Such as telephone toll billing

 

 

 
      

i b1, b3,
3-33 Field of?ces remained-resan for in'COnnection e?rnajl b7E
addreSS-' tippers, which Wasulikel'y ?f'tt-cibutableito the comparatively low enmail

tippers and the ability of field offitesto?handle ?iemexpeditiOHSIy; 

 

 

record?S?SQ issueid'two revisits, in 2.007 and 2008 examining the:-

(U)

Justice. Department investigative-guidelines isSued by Attorney:
General, govern the: whiCh the FBI may. use NSLS. The.

Attorney General ,zguidel?i?nes in effect. ?ring?th Stellar Wind-program

  relevant t9 and.   
authorized national security ?lirn'n'estig'aticn;341 Further, internal policy.
 ?investigative?les? and nominvestig?ative
?ijad'miriiStrative files?  referred to as ?control files?); This

is Hit a mere te?ehnic'ality. Investigative files, in. the national

security context, are opened based on evidence that a person, group, or
organiZation is involVed in international terrOrism. From Gctober $2003 to
September 12008, the Attorney General Guidelines required the FBI to
provide summary reports to the Justice Department at'the end of each'y'ear

 

theElectronic:Communications Privacy 31:8  9.709?; 

'5  (2000). NSLsistued undo

    

 "'under?fthe FCI guidelines) requires only a showmg of

are the, Right to Financial Privacy Act, 12, b1 b3
and. the National security Act,- 501 b7E

elied- othhe 'ECPAIStatu-te, Which.
prQVid'esithat the-FBI. may?cbtain subseriber information frein a cemmunications service?-

prGVid'erfif the FBI certifies that?the? inferrnation. Sought is

E1211: :CifeditReporting-Act, 15 use 1681 et seq.-

  

tel?e?vant to an authorized investigation to protect against international
terrorism Or clandestine intelligence. actiVities'iprovided that Such an
inVesti'gation Of-a United States, persOn is- not conducted $01er on the basis
of activitiespmtected by.   anio?dndent to the ConstitthiOIl of the-
United States.

85' Supp. Iv 2005). Thestatute also permits access to ?ton:
billing: .reeomls? or; ?electronic communication transactional records,? 18 
but,:requiresua warranticr access to the content of telephone communications. See ?18
25311 (Wiretap Act). and'3121 (Pen Register Act); see alSo 1-8 2702(1))(8),
(U) 

340 The 010?s ?rst report o?n NSLS, issued in March 2007, was entitled,AReyiew of
the Use?of National Security Letters. The second
in.Marel-1. 2008, was entitled, A Review of the Use .eantional Security
Letters: Assessment of Cbrrecn'ue Actions and Examination Usage-i712006. (U)

From March 8, 1999, through October 31, 2003, national security investigations
Were governed by the Attorney Generalis Guidelines for FBI Foreign Intelligence Collection
and Foreign Counterintelligenc?e 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)

Theevidentiary standard .forinitiating an investigation is the same un
iid?elines. Too en a full investiation theFBI'isIe  b1, b3,
b7E

(if-such invoIVem'ent. See NSI Guidelines, Section?II?. (OCtob?e'r- 31, 2003'); FCI Guidelines,

'Section 111.13. (March so, 1999). 

 

 

-  ?aticnel  investigation,ca?tinues. These- reiqUirsmems helped.
ensure-mat there was suf?cient;dojcumentedi Pf?d.ifcati013l.f0r inves?gativeg
activities FBI agents-sought to as requesting  

Central ?les,  contrast,  ?separate files -estab1i5h'e'd:for the.

 07f administering speci?c pha's'es'iofa? ihEVeS-?iga?ve matter or
 The files don'O-t requirezany ?pl?ediCation andremain open b1, b3,
indefi?itely without any reportihg krequii??m??ngts :for national security b7E
1316., th? S?ptemb?rQOQZ EC requcs?hgihata
  
?adediic?ia  Con 0 . or ?fhis?pl?ojieotwill better-Ema the-apaci?bneedsof
 - spits  project and will.  additional. layer of: Security for the
soiirCB.? The. ?le has remained open since September 200.2 ?withojut 

(As discussed below, in
Investigative file; however,

  
  
  

 

          
   
   

 3342 Thus, in 1?9 was 
FBI "to issue N?SLs-fro Stellar Wind

  
 
  
   

The March 2007 .NSL report identified th
0113 of-tWQE circumstances Where the FBI was using (30

.de-?lQeied?i and affiliated groups or to open new preliminary. or full
in?estigations. in compliance with JHSti'ce D?eparttnent mvesti?gati?ve

gaidelines. 

 

 

 

 
 

'1  {part of our-reviewof the'FBFs participation in is  
the? ?136 under

We??  I ildathe Purpose of having; the inStead? of the.fie1d??efficee Stain

approval 51701" ?theviesuanc<atof such NSLs Was. to make.Atheztte1eph.ony tippers
merel?ectionable? by ensuringthat field; offices knew the b1, b3,
i  13' As described in Chater?th e, th'e'mei?r?ibers b7E
'Qf  the. predeoessor to had reCeived
  ?eld offices that ,?eads'?'laoked
directionagout how. tom-eke intrestigative use-oi:telephonenumbers-end
did Suf?cient information to. Open "onal'se'curity 
investi .ationsi. "This was problematic bee seminated ue'der?the
and for ?a time under nstruclted 'fie?ld'
efficesito? obtain subscriber-?information for?tipped telephone numbers.
Thusgif agent-scould not locate: theinformation in FBI or'commercial 
databaSes?, they faced a dilemma about howto-prooeed in the absenCe 0f
Whatrthey?ewedas sufficient predioa?tionThe: ?rst Unit Chief (who served  an Acting capacity] b1, b3,
secusee'd the {itoblem in  EC distributed in January 2003 that addressed b7E
 eject. The EC stated,

    
 
 
   
    
 

:n?the nature of the infermat-ion provi-dedy[-in an

lead], ?eld Offices-may determine this intelligence

could he: used. to predicate either a. Criminal inveStigation Or an 131,133,
intelligence investigatiOn :of? someoneiin their territory. Some of b7E
 leadslmay contain a request for a field effioe to

 subsdriber in their territory, if possible, in addition to

providing intelligence. The identification of?some. subscribers

might actually require a National Se (NSL) or a

 Jury subpoena; however, th ontr-ol file

would not be the appropriate legal authority for- these requests.

TheActing Unit Chief?s supervisiOn of the CAU ended in February

2003. In March 2003, another FBI SuperviSOry Special Agent (SSA) was 131,133,
appointed as the first permanent Unit Chief. He told us that when he b7E
joined the CAU he was aware that field offices sometimes did not obtain

'b aforrnation on tippers because some agents did not belieVe

ECs provided sufficient 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.

 
 

       

 

Windproeram to proces

 

 

 Unit?Ch-ief wan-ted ?eld Of?cesl- at,- a? minimum toiiknow the .iderititY'

effeub?scribers ?ol tipped telephone. numbers. He also-said it wasimportant
to: .aseenaijn the correct identities of the-subscribers- :at the time the tipped

 Were-.zplaced, that if the-?eld ef?ce did 

- information prompt-1y; er; i'fgthe? ?eld offiCere?lied only 
eafpublicly amilable interrelation, the-passage airtime could. cause user
\ofthesphone to be misidentified. theUni-t Clhief said ithataeven if

airtipperi'di?d' not: result inany investigative valueat the tithe ofth?'tip, it
nevertheless? was important to identify the subscriber-in the event 
o?eoame relevant  the future or to For all of these
reasons, the Unit Chief said he tooksteps to make the instead of the
FBI field-offices, responsible for number tippers
 Stellar Wind iprogram??i?i t. . .u 

  

QAU analyst-Iwas-read into the Stellar

I 7 Theanalyst told its she b1
questionedv the-Unit Chief a  ?lQ'Vsupe'fViSOI' about whether it was 133'
permisSible to isSue out of a control?f?e; The Unit-    b71E
.he'Waswn'ot aware at this, time that a control ?le Such as 
mites used to issue -  

In approximately - 1: 

  
   

   

The analyst volunteered to approach FBI OGC and met with 
of thefOGC?s National. Security Law Unit to diSCuSS??liS
 She-said, she'told'Bowma that the CALI wanted to know? if "it b1,
"got-11d issue NSLs 'Under  View of its status as 133;
She Said she told Bowman that seek. subscriber information b7E
only and: that field of?ces would be responsible for seeking related toll bill-tinge
records if warranted by additional inVestigatiOn. 

Aeoording to th al' Bowman said that it would be permissible- to
issue NSLs out of th ?le as long as only sub3cri?ber informatiOn b1 b3
was sought. The analyst said she could not recall Whether Bowman b7?E 
affirmatively stated that issuing NSLs from a control ?le would be

  

   

 

343 On January 1-6, 2003, 2 months before the FBI SSA Was appointed Unit Chief of
the CAU, Attorney General Ashcroft. authorized the FBI 'to issue SLsduringl preliminary
investigations. Prior'to this time, the FCI. guidelines authorized the FBI to issue NSLs only
asv?pa-rt? of a ?full investigation.? 

34? The. Unit Chief told us that he did not believe it Was critical at the preliminary
stage toalso-obtain telephone subscribers? calling records, or ?toll remrdef? identifying all
outgoing and incoming calls. - -

 

 

permissible or Whether he merely agreed that .itwenld be: permissible under-
?the? the analyst presented??is' - - 

Shortly after the meeting, the: CAU implemented procedures for

'ne?stin ?that OJGC issue SLS- to obtain subscriber information for each
telephonenumber tipper dfi?sseminatedto field offices that the

early airfare of or for which it. did; not have subscriber

er these procedures, the analyst received a copyo'f 131: b3:
  with ?itelephOne number tippers-as they werefissuedib'y b7E
Team "IQLand the fed a- separate approval EC to the that repeated this
mermaids-and requestedthat the NSLB issue NSLs for the. numbers listed.

attorneys were responsible for determining Whether the NSL requests:
an authorizedinvestigation,? as required by statute. If the
attorneys, determined that they were, NSLs were.drafted and, signed by the

 General Counsel for and forwarded to the .for service. on
theappropriate communications service providers. The provider-s returned:

the, records to. the: which in turn disseminated the
inf?rmationtor the: appropriate FBI field offices. From  
issued over" 500 NSLs. under

   
 
  

 
  
 

  
   
 
 
 
 

ral CounSel Julie Thomas about NSL
issuance practices un?dei Thomas was read into Stellar Wind
shortly after joining the {zit-24111. her 2004. She wasresponsib'le for:
reVieWingr-_and ,authoriz?in I '7 VLS reqhested by theCAU. Thomas

A the operational reasons the CAU began issuing.
ut statedthat it was not until the OIG?was I
its ?rst, review of the use of NSLs in 2006 that she learned
was a'oont?rol ?le and the significance of this. status as it related
terssumgl saidtha-t the requests-to to authorize
NSL-s under a1Ways identified the speci?c file number associated
 the p" jest and indicated that the CAU had initiated a prelimin-aiy
inquiry  connection with the NSL request. Thus, in Thomas"s. View, the
NSL being requested was ?relevant to? an authorized inVestigation, as

We interviewed 

b1,b3,
b7E

  
  
     
    

 

345 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 reporting a tipper to
the FBI, air-aady had established a reasonable articulable suspicion that the foreign end of b1, b3,
the contact ,vvas related to al Qaeda or an af?liated group: Caproni said that in viewof the b7E
o'f'al Qaeda investigations conducting, Bowman. likely concluded it
was permissible to issue NSLs under
even if at the time there was not aspecrfic investigation to which each SL could be
rvisor at this  IG that he recalled the decision
lose relationship to the 

    

   
  

  

 

and Justice Department investigative guidelines.345

 

  

Reviewer, Thomas said believe-the were;
improper even though-they were. issued froina control?file; :go?mas stated
 the in ?faCt were reievant to authorized international terrorism b1
intreStigatiOnS in that the FBI-was conducting-hundreds of investigationsof b3?
Qa?edaand its affiliates. at thetime Thomas. tel?d-therO-IG 13733
 tWitjst?andi?hg this position, in November QODi?-the FBI converted,

to  ?umbrella investigatiVe- ?le? to re?ect the programs

 to. international terrieris'rn investigations, 7' 

   
 
  

   

EheQIG-reviewed the communication "from the ?CAUV-openin?g this
investigative ?file.  stated that. a member of the Intelligence
 {the reportedto the, FBI that a1 Qaeda members
associates are using telecommunications sy'Stems to. facilitate? their terroriSt
activities, that the FBI has independently determined that; this is. occurring, b1: 133?
i?inasmueh'that Area-Lida issa mule?faceted and. international b7E
terrorism organization, the FBI has determined itis appropriate to open a.
 field_.intfestigatiire 'The? communication stated that the CAU Was"
usiingsinforrnation obtained from the member ofthe Intelligence
comm-unity to issue'NSLs and that the results. are disseminated to the
appropriate; FBI ?eld officesi The communication also adVised that, 
 1gati3te ?leads associated with be titled
it _7 osprotect the source of the information and the methods used-to
ob ain'the information. i 

  

 
  
 

   
 
   
 
  

  

)rrently is taking a similar approach to NSLs under the

i  ?ld of?ce (instead of the CAU) is authorized to issue  b1, b3,
NSL under the investigative ?le, even if the field office does not b7E
open its oWn i? estlg and the tipped domestic telephone number or

:e'??rna'il address: is not relevant to another Open investigation. However, 

issued under can request subscriber intermationsoni and may not
request-transactional records, as was done unde.

Wease?

 

   

 

The decision to restric 7 NSLs in this way was not b1, b3,
required by law, but was an operational decision. As discussed below, FBI b7E

 

 
 
   
 

 

34:: Th 

I jfiie number is  Thomas told us. that she
did. net realize a

designation stood for- "(Control File.? In addition, in the approval

EC-s reviewed sought the issuance of NSLs, the CAU stated, amongother b1
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 b3>
preliminary inquiry wasconjducted for the. US telephone numbers reported by this b7E


 

 

 

?eldfo?ffices sad-teased most tippers - by-C?Ond?cting ?threat:
asses sments?? to dietermin whether the: dipper "had: a nexus  "terrorismrand
The b1_ b3
subscriber information;- for? a tippe?r?is so;  purposes-?of eofnpleting b7E 
Thesameis true f0. tippers; ?andthecurrent?
Tea-magicsupervisor told us that it Would no he  Fi?g'ogod??bus?inesa? practice
 0911th transactionelrreeords on. saniiS.  
 sti?ed  field cities initiating its oWn preliminary  runs inveStigatiOn::of
  - - 

 

 

 

Webelieve the: FBI should have opened  investigative:
?le. in July 2003? and used it to "issue NSLs related to Stellar Wind
information. The Justice Department investigative guidelines in: effect at
that time-authorized the FBI to-open full investigatiOn's 90f groups for-Which
thereiwerespecific andar'ticul'able facts to believe were involved-in
international terrorism, such as alQ'a'e'dar HoWeverithe'FBl decided to
issue-Stellar Wind NSLS from  ere-stingContro?l?file?, Which was centrary' to
F1 internal-policy.  -. i" 7 

b1, b3,
b7E

  
 

W?s-did not ?ndievidence that-officials from  CAU and'OGCin-volved
  decision to. existing to issue. related-tot Stellar
Wind information deliberately tried to circumvent FBI) guidelines. The July
EDGE-rationale: for issuing the NSLS out of the centre-1  
relationship between the Stellar Wind. program and the ongoing 131,133,
investigations of al Qaeda and af?liated groups; essentially was the b7E
reasoningused in November 2006 he investigativei?le
 in November 2008 to Openth A?s Weifound
in-Jo?uri March 2007 use-of 'the-CAUand
OGC-officials involved in the decision; to issue NSLsifrorn the
control. file Conclude - in g, . od that? the FBI had-l-Sufficien-t medication
either to connect  NSLS with existing?preliminary or full
inVestigatiions of 'al. Qae?cia-anaeamliated groups. orto' open-new preliminary
or full inVestigations in compliance with Justice Department investigative
guidelines. Nevertheless, the decision violated FBI internal poliCydiscussed in Chapter Three, the Department implemented a
process imposed by the MBA Conrt to ?scr?u PISA applications to account
for Stellar Wind-derived information. The objectives of the initial scrubbing
pr'oCess were to determine whether any 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

 

 

 

 

 collection refer-redto asadu'ail coverage),

. The: scrubbing process was coordinated try-the: Justice; Department;
 N-SAJTbegir-rning in February after Judge: Lamb erth  read? into.
stellar-Wind, In May-2002}, Judge. KollarsKotel-ly? succeeded Jildge Lambs-rm
 Pres?i y: in?g. Judge of the Court and.=ccntinued rtheascnubbing;
procedures. However, whereas Ju'd'ge" Lamberth-requiredohly that hsgbe
 of?app'IiCatiQns thattconta'ined?SItellar Win61. 

?I?ollar??hote?y required that such informatiOn be remoVed.

 
  

 

in Chapter Four, on March 14, 2004:, QIPR Counsel
Batter briefed Judge Kollar-Kotellyjabout thevaresideI-lt?s decision to sign. use
march 11,2004, Presidential Au?iorization-Without the, Justice
Department?s certification as to form  legalim 
about Subseq? -, ent Changes'the Authorization made "to "the Stellar Wind
  1'  - . 

   

According .a handeitt?n IEtter?Judg?e Kollars'Kotelly?drafted to
?Bjalgeriifd tthe Stem
'ra 

  
 
   
     

   

  
 

   

  

Deputy Attorney General-agreed: to certify the pm -_r_am asm
formand?lgga?t? and memorandum
"regarding-Ema legality of Stellar Wind?itoreplaCe  November 2001
m?mbrandum-au?iored by?Y'oo,  . 1 

Judge Kollar?Kotelly?s letter marked the first time her .exPectatiOns
conciernin?g the Department? use of Stellar ?Wind inferrnationin FISA
applications was communicated in writing to OIPR. Judge Koll?ar4Kotelly
wrote,

   

Although the Court has every confidence in the oral
representations of Jim Baker [and] does not have any reason to
question his honesty or credibility with the FISC 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 FI-SC in May 2002, the [Stellar Wind]
program and. ISA applications are to be kept separate, and no

 

 

information direct or indirect, derived?orr?Obtainedjfrorn [Stellar
Wind] should  included  applicatien?s. Only-in'thi's
 the integrity of theprocess and intelligence collected-
Lhrieugh FI?SAapp?ca?bns be maintained.
{rs-,1 ,?r-srre?; am on,"
Judge Koll?ar?Kotelly also wrote that she would. not sign 
applications that contained- substantive information from! Stellar?
. 'Wi?dageneraed tips or any-applicationswhere: the iStellar Wind tip" Wee-the
sol-e  "principal factor: for" an agencyinitiating 171-16:- underlying:investigation,
?eyensif- the investigation Was conducted ind?ep?endently'iof the tip from
[Stellar Windlf? - 

  

Baker told us that this 1ett.erWas..Judge .Kolalar-Kotelly?s preliminary
response to the changes in the Stellar Wind program. ThrOugh subsequent
jisen?ss?ieriis between Baker, and bet-Ween Baker
endotherepartment  FBI officials, a more ?eXigble-arrangement was.
ureaehed on Sembb?in?g that addressed Judge Keillar?eKotellyisiconeerns
Without imposmg an absolUte prohibition on including- certain Stellar
Wine?derived,informationin appliCations;347

 

In short,- the. scrubbing precedures' implemented in Marcht2004, and
that.ljeon?nue to the present day, substantially expandedthe procedures
OIPRLor-?igin-ally developed in February=2002i?48 Inaddi?onro determining
Whether  SA intermation contained in international terrorism 
applieationsxwasderived from Stellar Wi-nd-and-Whether there was?any-dual b1 b3
Coveragey-Judge Kollar?Kotelly required the FBI todetermine whether  b7?E 
facility (teleph'one?nunlber or email: address) that appeared in? a PISA
application also appeared in a Stellar Wind report and, if soywhether the
FBI had developed, independent of Stella ?Wind an investigative interest in
the faCility befOreit was the subject of Ian 't?ipperr??is? This? 

 

 

347 FBI OGC said that it was not until th'esediscussions 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 NSA information derived
from the Stellar Wind program and to information derived from the FISA Court?s PR T?T?and
Section 215 bulk meta data orders. Until mid-2008 when the Stellar Wind program
of?cially was closed, leads the SA developed from the FISA-authorized bulk meta data
collections were disseminated under the Stellar Wind compartment.

349 As discussed in Chapter Three, Baker did not believe in May 2002, when he ?rst
discussed the subject with udge ?Kollaer'otelly, that such a scrub was possible. Baker
told us that'bly Marsh 2004 he better understood the and precass for
disVSern'inating'Stellar Wind information and the agencies? ability to track program?derived

tips in a timely manner.wa

 

 

 

 

Scrub-is eqordinatcd 
1a   I . 4. Ji

 requires its compile alistcram}??facilities??a telephone

   

Humbert; see-mail addresses that appeared  any --draft 'i'ntethatidnal
. terrorism PISAapplicationsgm 
Greedygfor'?ling with then-Court and is: provided teen attomeyiin

 read. into-the Stellar Windisprograrny The? attorney in the
facilities-"list tori?Tee?m 1,0 at'th?'NSA, Team ?10 Checkeeach facility against
the NSA?s-Stellar? Wind report-s database to determine Whethera list?ec?i?
faeilitsirt'is centained in any-StellarWindgreports and, if soy-Whether-the
in the tearline portion'of a report that was further 
disseminated to FBI ?eld Of?ces. If both: *inquir'iesare ?pOSitive, 'T?eam 10:
notes the date of the relevant Stellar? Wind report andssearches ?ieiFBITh
AutomatedCase?Support System (A03) to they-facility
appears in and, ,ifso, the date   the FPS 

 10 reports the results of '?ieserchecks to ?the: attOrney for review.

The attorney takes one of two? steps at this stage. If Team 10?s
checksefrfesnegative=~ meaning none of the faoilities are-"contained in a
report or contained? in informationfbelow- the tearline of a
StellarfWind report the N-S-LB-ecrab attomey'netisfies-  OIPRat?tomey
and FBI case agent that the FISA application be cleared for presentation.
to the Flea-Court and that the'applicatimi; can preceed to ?nal processing;

If 3both cheeks-on a facility are positive, attorney  to
determine if there .iisa "basis information in the-
application based On the theories, diSCuss-ed in further detail-below, that the.
FBI had an inor would'haVe inevitaly
discovered. the: facility in question. To determine this, the NSLB attorney
research-es FBI databases, analyzes irecords, and attempts to craft an
.axgumentunder one of?these theories. The attorney then provides.
this information to OIPR for presentation the Court. If the SLR-attorney
cannot find a basis for including the: information under either of the
theories, 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, attorney discusses with 
whether to make the argument to the appropriate FISA Court judge (initially

     

 

wt 

 



     

 

 

and (new, the judge. assigned to case) that the facility
neiferthe-lesscan remain in the application. - i. - 

 

.Accer?dihg to the Deputy General the argument to
keep 'qu'ch. information in an applicatiOn is "based-on ?standard Fourth
Amendment [cite-lusionary rule] analysis.? The ?excmsionaryrule? generally
helds? that'where the government obtains evidence in- vielation of the Fourth.
Amendment, the court-will Suppress, or eXGlude, the evidence'frorn the
prescsutor?s caseeinmchief in a-criminal. triall- Under the: ?fruit of the
poisonous? tree? doctrine, a corollary to the. exclusionary rule, any evidence
obtained directly er. derivatively from the government?s impr?Oper? conduct is
also excluded, However, there are several exceptions to the exclusionary
rule, tire of which were relevant to scrubbing: independent sOu?rce and
inevitable discovery. The independent source exception holds that the
rule. does not. bar the use of evidence obtained in violation of
thethurth Amendment if there is also an independent, "legal source for the
e'vlidenCe?Sl The inevitable discovery exception applies when evidence
obtained violation of the Fourth Amendment. would have been obtained
independently had the illegal search not Occurred, which the government.
must pt'oVe  a preponderance of the evidence.352 

Thus, in the scrubbing context, the issue is Whether the Stellar Wind
informatidnconetained in a FISA application, should not. be excluded, either
be?caus? the FBI had an investigative basis independent of Stellar Wind fer
including; the information in the application or because the FBI inevitably
Would',zhave ,discovered the infermation in the absence of Stellar Wind. More
speci?cally, under'the independent inVestigative basis exception, if Team
10?s seamh shows that a facility came. to the attention before
the facility appeared in a Stellar Wind report, this fact establishes that the
FBI has an independent, non-Stellar Wind factual basis to include the
facility in the application?S3 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 min nearly every instance that a
facility contained in a application also appears in 'a Stellar Wind

report. 

 

351 See Segura U. United States, 468 US. 796, 805 (1984). (U)
353 See Nix E). Williams, 467 US. 431, 443 {1984). (U)

353 For example, in one case the NSLB attorney?s review of the underlying
investigative ?le showed that the FBI had obtained the telephone number at issue in
response to an SL Letter. Because the NSL was dated earlier than ?the'Stellar Wind report
that?also Contained the telephone number, the had an independent investigative basis

for inchiding the number in the FI-SA application. WSW

 

 

 

 

 

inevitable exception in. the scrubbing context-applies
  101?s check indicates the Was-notaware of- fertility
before rheud?at'e of the Stellar Wind report Containing-the facility, Under this
approach? attorney attempts to demonstrate that normal
in-vestigatiVe steps in the underlying; investigation inevitably would have
:id?e?ntified the facility in question. The serubbi-nggattorneyanalyzes- such

case eVidenee iascl'ose associates and other relationships of. the subjects of

the: investigation that could? logically'lead -.investigators through NSLS, for
 ?to the facility contained in the Stellar Wind report.;3s4

Until January 2006, when the full was rea?into Stellar

'Wind, Judge KeltlaraKo-telly required that all. applicationsthe FBI deter-mined

contained facilities or information that also appeared in Stellar Wind reports
belie-leared-  her before being filed with the Court;  she wrotein a
12, 2005,: letter to OI-PR, want to ensure? that, tothe extent 
possible, [Stellar Wind] informmion is extoluded from applications submitted
.toetlrije that,_ ifit isnecessary to include such information, itis
specificallyidentified to the FISC as derived from {Stellar Wind] collection
when the application is preSented.? .OIPR DeputyCounSel Skelly-"Nele-n 
who was read into Stellar Wind on March 12, 2004., but who had. been
involved in the scrubbing 2001 was responsible, alo?g?with
Beheaffor- co?ordinating aspect-of the scrubbing process and, when
warranted, for presenting the argument to the judge that an application
containing information that Was?the subject of a Stellar Wind-report to the-
FBI Should: nevertheless be approved for filing. .

   

Skelly-Nolen Characterized the applications she presented to Judge.
KollarA-Kotellyas either ?vanilla? or Vanilla applications were
those for which Skelly?Nolen could con?dently represent that the FBI had.

 independent investigative basis for the facility identi?ed in the

application that Was the su 'ject of a Stellar Wind report (ferexample, a
facility the FBI learned of through FISA coverage that premdated the "Stellar
Wind report). Skelly?Nolen told. us that over time Judge Kollar?Kotelly
allowed the vanilla applications to be handled telephonically in an
unclassi?ed 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 Fer 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 Stellar Wind report. HOWever,
the subject of the underlyinginvestigation was" the target of an FBI national security
investigation, and argued that the telephone number inevitably would have been
Connected to the subject through the. ?natural course of the investigation,? possibly from

tell records associated with other telephonenurnbers used by the subject, trash coVers and

Open source information, or physical surveillance.

 

discussed ud-th Judge- Kcllaerotelly in person.

 

inevitably wouldhave dissovered the facilityri-n questionrduring the normal

course of. investigation. Skelly?Nolen said theseucases were_v;always

 
   

told Us, that there were Judge 
Iiollaerotelly requested additional intimation 150 Support the prC?ffmd
theory'foir including Stellar Wind information in the application" In

sende- eases, Jildge-Kollar-Kotelly simply struck a line through the

paragraphs in the filed application that contained the StellaryWindderived
'infOrrnatiOn and annotated in the margin, ?This-sectiOn (strike) not
:?onsidered'in evaluation of probable cause,? followedby?her signature and
the: date. Skelly?Nolen also :said that in one or two cases Judge
Iidllareliotelly required that-certain Stellar Wind information arguably
necelsSary for eStab'lishing probable cause be removed from the 
applicatidn-s.355 However, in general Judge Kollar4K'otelly aece?pted 
and? the FPS assessment that there was anon?.?Ste?llar Wind?in-vestigatiVe
basis: forthe informatiOn in question, or that the informatiOn inevitably
would been discovered even in the absence of Stellar Wind?derived-tips

"t0; the FBI. 

After operatingunder the eXpanded scrubbing-procedures for
approximately 6 montherudge?Kollar?KOtelly agreed in November 2004 to-

,allow other Gourtjud'ges who. had not yet been read into thel?Stellar

Wind program to handle scrubbed international. terrorism applications.
However, Judge Kbllar-?Kotelly Still requiredthat Ske11y~No1en bring to her
attention all vanilla and nonnvanilla applications so they could be ?cleared?
?b?efOre. being formal-1y filed. As notedabove, it Was not untilJ?anuaIy' 2006,
When the.qu Court was read into Stellar Wind, that Skelly?Nolen Was
able to discuss such cases with other judges. i i it.

   

Since that time, the basic scrubbing procedure described above has
continued. The Office of Intelligence attorney primarily responsible for ?the
process told us that each new application that references a facility that
Was disseminated under Stellar Wind is brought to-the attention of the
judge assigned to the case.355 HoweVer, with limited exceptions, the FISA
COurt judges do not require that the government inform them of renewal
applications that contain such facilities so long as they were previously
brought 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-Nolen, Judge K'ollar?Kotelly nevertheless allowed OIPR, to the
these applications and approved them. 

305? The Of?ce of Intelligence Policy and Review (OIPR) became a part of the
Department?s National Security Division, which was. created in September 2006. As of "April
2008, OIPR was renamed the Office of Intelligence. (U)

 

 

i . relies- jo?n  independentinvestigative 'i?terest  the   10f

easesgsin Whichlit-seeks to keep an application; The attorney? 
also said that ,frcimthe. perspective?of? the -Office-of:jlntelligenee the serubbi?ng
presses:  more-manageable today,  past because  proce'Ss' is.
be'tterorganized; additional personnel havecbeen readz?in-to the  
Amendments net-of.zoos-extended the periodoff'time the
gdvernment'must bring emergency applications to Ceurtifrom 72
?honrsto (days. Homver, from: then-FEES perspectiveggthe ,scrubbing:
precessrcontinuesfto be burdensomemquires a:  ?eXp?nditUIc
Cf tithe-ianduother 7  

 

IV. impaet of Stellar Wind on, Countertermrism

Efforts 

 seetion exarriines the-impact of the information obtained from
Stellar-Wind ongFBI counterten?orisrn efforts. It?rst provides ?istatis?tios
of tippers from Stellar Windfinfomiati?on 
tele horn" resmail, and content disseminated to b1= b3>

itdesCr-ibe? ??ld .o'f?mgmera?r WE

. . ..  tippetsl-and?letypical resultsao'f?theinVSS?sationS.
 seetioni two statisticalsurVeys of mfeta-datatipp?ers.
conducted in 2006 to assess the value of Stellar Wind to FBI
operations, aridfdesge-ribefs' obserVatiOns about the 
to us by FBI officiais mid employees in GIG?.intei?rieWs and contained in
'taiined during the course of this review. Finally, the;
section eXamine?s I 331 international terrorismiinvestigations commonly
citedaslexarnples o?ertelilar?Wind?s contributionfto counterterrorism ef??rts
in "the United States. -  

 
   
  

 

   

 
  

   

 

b1,b3, b7E

A. Stellar-Wind ..

 

We reviewed FBI and .NSA statistics relating to the-Stellar Wind.
program. Awarding to an. NSA document from October 1, 2001, to b1,
February 28, 2006, the NSA provided elephone numbers and b3,
e?Inail? addresses under the Stellar Wind program. The FBI disseminated b7E
moSt of these as tippers to field offices. Chart 6-.1 depicts the distribution of
the telephone numbers and e?mail addresses the SA provided the FBI by
type. -. 

  

 

 

 

    
   

. Chapter Three, the NSA- provided ratings, or
foreth telephone runner  email address to help.
the; FBI prioritize: "e tippers being disseminated. to ?eld offices. The FBI
ede?n

     
     

 in-ECs disseminated to field offices in the following-
. manner:

am 10 began to. make independent-
on that basis, 

 FBI included these rankings
Equi-ltil early 2003. At that tim?, Te
assessments about tippers? priority for the FE 
generally IdisGOntin-ued including the ratings in As '31: b3:
dismissed   Chapter, Team 10 usually set Action leads for telephone b7E
numbers  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. I

 

    
  

 
 

We Could not 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 field offices, we b1 b3
eXami?ned the number of individual telephone numbers and email 137% 
addreSSes previde?d to those offices and the type of lead assigned for each.

We.- determined that FBI Headquarters asSined A 'on leads for

approximately '50 percent of th ead-s sent to. these offices.

As depicted in Chart 6.2, ofth 7 
field of?ce from December 2001 to December 2006
Action leads. During this same period, of th

  

   
    

 

 

 

  the fact-that wily-.5 percuemni-

 

 

 

   

the 'S.eatt1? field .offi'ce, aSAc?on leads. Theserfiguresa,

 

I I metada?ta leads the
from October to 33131711217137 2006, Were.

at;  indicate What FBI ?eld offices Ware required to ihVESt'igatea
'zvoluni 17 -  addresses. that NSA
had-rated connections to

 -- 

 
  
  
  
 

     

qiL??dW-pesffm?Detroittand Seattle
(January2001:120Mav'20071  




of Communications the

 

b1, b3,
b7E

 

b1,
b3,
b7E

 

 

 

 
  

 offices.? major

 

 

 

  
   

b1,_ b3,

 b7E

eads- wererdistljibuted. unevenly

.  .o'f'tippers-Were disseminated tb' large

pf?-mSWith s" ?bst?antial .co?nterterrorism? pngrams, such as NgW?Yeork,

alld?Los Angeles,hand to-dfficeswhose territh

MiddleEastem p0 'ulatio ?strait. For
kids.

  rat-lords. indicate that of th?? 
di??s?eminatgd in 20,05,  pares-ht wereassig-rx?d st? '7fi: 1d. office?s. Table
  :?depiCtsz-the ?di'Stribution- of In 2005- 'amoli'g? FBI 

 '1     - I 

 also found the; 

b1,
b3,
b7E

   
       
   
 
    
    

 

111 these ?gures does not equate to a ?smg?le-telephpne number dre? naJl
address; gash :1 lead could contain severaletel numbers or Email

   
    

 
  

 

 b7E

 
   
   
  
 
 

 

seminate?dvunde 359 Rather, the "type of lead that the

 

 

    

  

   
  
   

 assigned Action, Discretio" f;  Information governed a b1? b3?
??eld Office?s response to a tipper;360 *ontent tippers, which b7E
359 As diesussed in Chapter Three, the practice under the
first severalweeks of the Stellar Wind program was to set Action leads for all telephone
number tippers. This I I a 1pper b1: 133?
inaSte?ar'Windre or: b7E

3?50 An Action. lead instructs a field office to take a particular action in response to
the EC. An Action lead is ?covered? when the field of?ce takes the specified action or
conducts investigation to address the information in the EC. A Discretionary
lead allot-Vs the. field of?ce to make a determination whether the information provide cl
warrants investigative action, A ?eld office that receiVes a ?For Information? lead is not
expected to'a?ny Specific act-ion in response to the EC, other than possibly route the

(Cont?d.)

 

 

Emma-d? information derived from communications of telephone numbers
?ndeama? addresses under Surveillance generally assigned::Discrettona?
merinf?rmation in these tippersnsualilxy related to} b1,
and was provided to;  b3,
?fo those Castes email address iipe?rsisenerally b7E
leads t?Q-?f-ie?ld toffi'cesunless the information was
Utg-e?t? AS-??o?ted above, content dd" 
?Cpmparati?v?dY-Sma? Portion of the": 1 . - 
diesen?i-inated by Team 10.  . 

   

  
 

I Theva-st majority of FBI invest v-ity related to Stella-r Wind
intermation involved responding teleph-onenumber tippers
that assigned Action leads. Team 130 general-131r assigned Action leadsfor bla
numbers. that the FBI- .di'd net previously know or that Team 10, b3?
such as a number thathad a relationship b7E
I   investigation..351 From approximately (when
Was created) to July 2003, Action leads instructed field offices to-
obtaingsub?sc liber inferrnation ifor the. telephone numberswithin its
 toconductany ?logical investigation to determine terrorist
connections,? ?H?oWeVei-?a some agents complained that these Action leads
 ab'ontihtho make use of ?the tippers, partieularly given
th Commuriications provided insuf?cient
to: open national security investigations.



rm changes in 2003 addressed some of these. complaints. First, in
 2-0032the assumed responsibility from field offices for "issuing b1, b3,
NSLs, Section Il'abOVe. .Secdnd, in October 2-003 the 1371;
Attorney General issued new guidelines for FBI national security

?threat assessment. - 

 

     
 

 
 

   

  
 

 


(A)

 

communication to the offiCe personnel whose investigations or duties the information
concerns?{S7445me

351 Discretionary leads were assigned to telephone numbers that already were
knownto 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 field offices to ?use the information 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
Guide-lines for-FBI National Security Investigations and Foreign Intelligence. Colloction (NSI
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- NSI 
guidelines with reapect to domestic operations. Theseptember 2008? guidelines use the
term ?assessment? instead of ?threatassessment.? (U)

 

 

 

bl,
b3,
b7E

   

 

number? telp?ers instructedfieldoffices to conduct teat assessment;

During our review, we isi" "the Detroit and Seattlefield. offices to
reviewthte'ir'hanldlieng o? eads, In addition, Wei-interviewed
several superViSo'ry Special agentsaat FBI Headquarters who had-experience.
handling-etheleads in their respec?ve field offices before being real "Ce
Ingeneral, these agentsfand experien,cewith
I eadsr was unremarkable.- A. thre at by "these
agents typically involved querying-Several FBI, publicj and
commercial databases for any information about. the tipped telephone
 reque sting that  Staite?aind local ,gavernmententities
conduct  queries. Sometimes these queries identified the, substirib er
to telephone earner befotethe?CAU obtained the-intermation With 
  other-cases, the threat Continuedsafter?the field office
received results-.353 i    i 

    
 

bl,
b3,
b7E

  
 

   

asesut-iliz'ed . in their threat as sessment's-

{Examples of the dataib
-- "i  - is the Automated 

 
   
     
 
 
  
 

     

bl,
b3,
b7E

 
 

databases; and Too 
mmerci'al suCh   
   The. results of their cheeks of these databases
eoul sometimes be extensivC and include personal information not only
abOuet the subscriber to the tipped telephone number, but also about
individuals residing in the subseriber?s residence or other acquaintances.

In other eaSes, checks were negative or revealed little information about the
number or the subscriber. 

 

   
   

353 We were told that it sometimes-tool orfield of?ces to "receiVe
subscriber information from the A Team field offices frequently- bl, b3,
contacted the CAU about the status of outstanding SL5 because the usefulness of threat b7E
assessments conducted on a telephone number were limited without the identity of' the

subscriber. 

 

 

 

 

The agents. and midway-reviewed the. results of these
database  t9 determine Whetheradditional investigativie steps under
the; threatra-ssessment were warranted cor-whether: the-re. Was :pr'edlication to
open;  preliminary: inquiry; None- of theeagents: we: interviewed? could? recall
initiating- any inves?tigationsvbaSed. on ath' . I eat. of an
upper?? "They said: they? frequentlyelosw 

   

b1,'b3,
b7E

    
  

 

0 0

sandman-gs threat aSSESSment interviews mavens-$015 be: ariddetermimng
that-there was no nexus 'to terrorism or threat to'natigna} security

 the leadswere: Closedrbasee 30161373 On the results cleanses
Checks; 

    

agents were not ?9 rmnted to explain tozrs' bsoribersvhowthey b1: b3:
Obtained the-information that caused thein to seek-an mtemew. Instead, b7E
agent's: simply asked subscribersgabout their contacts invzeertain countries

 with specific telep'honeanumbers. Agents told us that subscribers

generally ECiOrisentt'ed to these interviewS and were cosperative and?

forthcoming. In a few cases; subscribersre?ised therequest' or sought the
advice Of. Conn-361.355 7 - 7  

 

354 Prior tovthe GAG-?stuly 2003 decision; to assume re'spOnsibility for issuing NSLs,
agents in F131 ?eld of?ees often opened investigations in order to issue to obtain
subscriber information. These oases :uSually Were closed after the agents Conducted
investigations and determined the domestic?telephone number tipper did not have-a nexus
to" tetr?dr?iSm. 
$.55 On September 29, 2008, the Attorney General issued new guidelines for

 FBI 0 era-titans which includes national security'investigatiens; Thesegu-idelines

    
 
   
   

 
 

 

b1, b3,
b7E

 

 ..   . .  Compare
ener s. m, emes or . ope atim sec (Septemb?r 29?,
2008), with Attorney General?s Guidehnes- for FBI National Security Investigations and
Foreign Intelligence Collection, Section (October 31, 2003'). 

355 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 field office, several interviews revealed thatthe foreign telephone Calls placed
todonie?stic numbers Were made using a pro?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-
teri'Orism used the foreign telephone number might have been accUrate,_ the number also
was need about whom there-was no reason to believe were involved in
terror-ism. 

   

 

 

FBI-field 
assesses-mate the  in most-of the E65 we reviewed: the?eld-ef?ees
reported: all Of the information that? was locatedabout the idle-phone.
numbers, .inei?udi-agthe details or any subscriber interviews, and then stated
that-the office determined the 9 tipped telephone number-did notiihave; a
nexus ito-terjrorisin and considered the-lead closed. less frequently,
?sld . offices reperth that  preliminanr investigation- was Opened to: eten'id?uct
Regardlesszof Whether anyfl'inlss, toti?t?l?riatiOnal
 WEE?jidenti?ed, "the reSult?s off-any threat andthe:
aroma-son that was collected about subsoribers..gjenerally Werer'eported'1n
communications to FBI Headquarters and uploaded into'FB-I dataases-v

C.  atistical Survey

 

set Meta Datae?iT-iapsrs b1The 131. made several attempts, bath, informal and rnorezformall', to
assess value-pf Stellar Wind to FBIacotmtert-errorisnr efforts? The first
Was infernal attempt by the OGC. FBI General COu?nsel Valerie-
;Gapre?ni; early 7204 sheepoke with the, UnitChief' and
Chieffor' the Communications Exploitation Sentienanon-timing;
te assess-the value efi Stellar Wind. informati'On. According to iCaproni,? the.
on anecdotal and insformal?feedb'ackfrom
FBI fieldadfficiesj, the telephony meta data tippers were the most- valuable
intelligence from the?prograrn for agents Working on counterterrorism
 Homer, Capronito?ld us it was difficult to conduet'any
meanihg?? of the program-is value in ear1y12004 becauseFBI?
?eld of?ces-tatthat time were?not required 'to report to FBI Headquarters the
atiVe results of'thefStellar Wind leads disseminated funds
 BIL Headquarters did- nOt' make such reporting mandatory-until
Oct b?cr'QO?s. as a result, Caprioniis discussions with the FBI manager's did
not reenlt' in any Written assessment of the program. 

b1, b3,
b7E

     
 
 

 

 

 

 

 
  

35" The advised field offices that investigative feedback abou 7. 
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 b1 b3 b7E
the analytiCal princess, but he said it was sometimes dif?cult to obtain 
suChiee'dhack. A CAU Unit Chief told us that the NSA expressed particular concern about
from the FBI regarding investigative result the tippers?
nexus to terrOrism. He said this Was-a dif?cult situation in tha, 
bes?en?dingout high value information about known links to terrorism, 
?uncomfortable? to receive little feedback from field offices other than, ?You?re sending us
garbage.? MEmbe'rs of?Team '10 told us that efforts to improve field office icedback overtime

had mixed results. 

 

  
 

 

 

TheFBlis: second? informal assessment?of the value of; Stella-1?- Wind
came-after 2-005 articles t-hat'puliely-
,disiglosed the Content collection?aspeetef titles-teller Wind'pifbgrem; Capreni
. said that in preparation  testimony at .?eon?gre sisional,
hearings  2006 on; theissue, shej attempted to evaluate timers-teller Wind.
(program. Capr?Oni stated that becausei'NSA'Di-recmr Hayden asserted;

public-1y that thepregfam was. 
identify, if-plos'sihle, any i-nVeSti'gations that illustrated 7
centriibution ?to the, FEM counterterrao'rismefforts; caproni-  this
effort wascomplicated by the: fact that ,Muelleris' teetimenyweuldbe limited
only torthe aspen of- the proigram :in-xthe New {York Times article

and, sub'Sequently con?rmed by the President - the content collection

baSke.t.  

 

  
 

As discussed
this; aspectefthe
I b?eca se I I 
as comparatively small}.  cevefaget'tjn
 these I-ajl?ready. C-aproni told;usfth-atjultimatelyShe was ableto
identify.- ecouple? ?ofcoiitent tippers that. contributed to 
that-there were:not-Inany; 7  

above, Caproni said that 

fiel
.


1: 

of?ces:

did not ?nd
hon me  

Irate.

      
 
         

 
    

        

     

     

ta

 
   



   

 

   

    
    
  

 

 

The FBI subsequently conducted. th0 more; snort-s to  the-Stellar
 program?s ire-act on FBI . or nations
study 'Sampi?led? t-h ijpp?ers the. FBI- had 
Stellar-Wind from 2001 ithrough200'5 The second study reviewe
 Bell-18.11 tippers the NBA provided the FBI from Augusteoezi through
January 2006, In both of. these. studies, the to, determine 
pereentage of tippers resulted in to: the
ientifiea'tion of terrorist subjects or aactiyity? on  soilr? We deseribe? in:
the next sections the ?ndings of these two studies.

 
  

   

  

  

b1, b3,
b7E

 

ll. Early 2006 Survey

37 and email b1, b3, b7E
Meta Data Tippers 

"r

   

Telepth

-15" 

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 proVided to cleared members of
Congress Substantive briefings about Stellar ?Wind, and the FBI Was asked
to testify about, its participation in the program. In preparation for these
briefings and testimony, the FBI sought tom'quantify the Value of Stellar Wind
intelligence for FBI counterterrorism- ope-rations. The conducted a
statistical study for this purpose, and in May 2006 the FBI provided a copy

 

 

 

    
    

 ?nducted during-a 1,-Week- in JanuaryQOGE;
.  :niquetelephone numbers and?eems? addresses-the b1 b3-
 '1 - Fla from the inception of the Stellar Winds-program B733 
2005.353 The Study soughtro? determine What percentage (?fths;
tippersresulted'in ?significant ('30 ~t"buti?onf ?to the identification of
king: 

or activ .  7
randomly selected?: tippers

     

l?l

   

the CAUere?teIrnined "ma. 
would; tie-required to obtain. statistically Signi?cant results.

 

Approximately 30 fromtheF I?s- Counterterroris?rn Division
Were-Jassigned theita-sk of-reviewin ippers to determine the;
of eat:h.359 The analyer soughtto determine Whether- a
partict?ar ?ripper made ai?tsignificant?l contribution .to- FBI Conn-terterrori'sm bl? 133?
effort-st For purposes-of the study, a 'tipperrwasr b7E
led three investigative 0an terrorist; 
depentation from the United States of a: suspected terrorist, orthe
development; Of an asset can report terrorists? 
 "that led to.  ?eld?offite opening a preliminary Or full investigation. Was--
 for pquOS'eS of-ithe?. study.

. 

The researched each tipper?s disposition in inve, 
resords contained -in FBI electronic databases, beginning Witht  
C?thatdisserninated? the tipper to, the field. If an analyst concluded bl? b3?
based; on this research thata tipper was Significant, a second analyst-Who b7E
was familiar With the Stellar Wind program further reVieWed that:
determination. If the analyst agreed with the initial finding, the tipper

 

   

   

 
 

 

        
 
 

3'53 According to the  
the inception of Stellar Wind, bu 


A had provided up since b1, b3,

b7E

     
 
    

359 Most of the were not re  and Were told
that the studyrc'oncerned the dispOsition tippers reviewed b1, b3,
by the approximately 1.2 percent were e?mail addresses, a with b7E
the; overall ti-pper?breakdoxwl between e-mail addresses and telephone nUmbers.

 

 

presented to the CA-U Unit Chief for a final -

     
 
 
   
   

?methodology, the study found that  I.?2IperCent,

 Lppers were sidni?c nt.? The study extra lated?thisf: 
'figure?to-the entire: ?pers and determined; that one; 3?

I   fin i'ppers' theZ   provided the F131
underlSt?ellar Wind were sig 1fi menti'ng the study?s-findings included brief.
descriptions i tippers. For example, according to the
1'6d't0 the openingof a full inVestigation that developed

 

 
   

     
 
    

evidence- that the user of the tippede?Inail address had ?definite ties to
 Theuser wasanfes'ted and pledgu?ty'to- chargesof b1:
:Anotherfti shied the b3:

b7E

'Sevierallof the ?signifiCant?f tippers related .to ongoing FBI
investigations. For example, information from one tipper designated as
significant-was already known to the relevant FBI field office, which an.

investigation :on? ?Concerning a subject aesociated- with the tipperpr?ior

 

torreceivieg ?the? C. ACCOrd?ingto- the study-?s; brief .descriptiOn of b1,
the, Case?sSignificanceljthe investigatiVe file stated that the tipper was: ?very b3,
beneficialjin the. ongoing. investigation? by connecting the subject ?to 13713

terrori'sm,- Without desoribing that connection. Another tipper causedagfield
office to  a relitnin? ?intro-ed full investigation regarding
the possible i?ll'ega The tipper indicated a
connection between-one? oi- the 'iSutbjE?Ct-S "oi-the preliminary investigation and
aknown tErrori'stThe study also found that 2?83percen-t tippers were never
disseminated to FBI field offices for investigaticm. According. to the report,

the CAU filtered out these tippers based on ?lack of significance? when they bl?
were first provided to the FBI by the NSA. These. tippers were deemed 

non~signif1cant for purposes of the study. In addition, the study found that
for 22 percent of the sample tippers, FBI field offices did not repert any

 

370 According to a CAU analyst closely involved with the study, establishingia fairly
?tight? criteria: to identify ?signi?Cant? tippers was necesSary in order to obtain statistically
significant results within the one-Week time frame the CAU was given to complete the
retiewl .The analyst told the, OIG that initially applied a broader ?significant?
standard in their?revieivs 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 definition
of ?significant? ultimately used for the stud}r was reached by consensus among
Counterterrorism Division operational and-analytical personnel. 

 

 

that Were set but: did natdocumEHt-?thcir workinACS. These

for purposes of the: :sjtudy-Sm Th?uS,
these 1W0: ?Categm?i?sl,? appl?O-?Iiima-t?y 510 percent of the tippers:
reviewgdwas partdf-th'e-C-AU study-either were navel: disseminated 

 or were disseminated I?GsultS?m'

   

   

The REFS rcpcirt of the studydidnqpex? 
Windnwa's a; valuable i 
that" based?impart-on: the results 'of?th?is study,
leads Were signi?cant, FBI eXecu?tive . at: 
prd'gram? was ?fof value.?   FBI. Director Mud-1.81"
 Dequ .Dirgctor Pistols provided cOngress?iQnal teStimony in Fabrualy
and May about the value-of-the program, which the. FBI
 -St?1t?d?wasabased in part on fhe. results of the study:

 

      

Meta Data? Tippms 1, b3?
b7E

. s?authoriiy. Hawaiian as noted earlier, the

 

 

 

 

 

 addresses:ij the: tellar 

 

 

I This-SeCOndCistudyj, Which-reviewedeach email tippers 

.ptovide?d'the from January '20206,= applied the

same methanol-egg for easesSiagjtsignificanee? that  aged-Lin ??rst b1,

 tippers: was b3,
?signifieant? under this ??Standard. The :?thatiinany of. b7E

     

 

  eelatsd  renamed email. tippersjwerestilt gagging;
'Iln?aclition, the study Observed that ?Somer-ofthe tippers reviewed had only.
recently bean disseminated to ?eld dffices for: inses?tig?ation and that it Was
possible investigation of? these tippers had net'been completed.

set m1 

D. AsseSSXnents cf Stellar Wind. information

 to' further-assess  value?eofStellaJr Wind intermatien to;
the; we. interviewed FBI- HeadquarterS Officials  employees- wha-
?r?egala?y?handled Stellar Wihdninformationn Wealsor?   perisennel b1
ianBI Who were pips-gm} b3?
esses?fOr theirassessme?ntsaoftheimpac. o- Stellar._ b7};
 infOtma-tion:  We
also recognize that FBIfoi?oia-ljs??  t" otherjthan 
 hayev?hadfeXperienceswith I  different-than thoseSmn-mari'Zed

   

       
  
 
 

   
    

The-members: of Team 1 
were strong :adecates of and stated th ieerb'elieire'diit'   b1,
contributed significantly to. FBI inter-national: terroriSm investigations b3,
Several? claime that program tippers helped the FBI identify preVi0usly b7E
unknown subjects, although they were not able- to identify for as any
Specific eases where this occurred. Other witnesses. cited the. 
increased cooperation with the SA on international terrorism matters as a.

side benefit of the Stellar Wind program.373 

FBI officials and agents fromthe. International Terrorism and
Operations Section (ITOS) expressed a more moderate assessment of Stellar
Win-d. None of the ITOS of?cials we interviewedcould identify significant
investigations 130 which Stellar Wind substantially contributed. HoweVer,

 

373 FBI Deputy-General Counsel Julie Thomas also 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? and based on-her
exPerien'ee dealing with program?related matters the relationship between the FBI and. the

NSA was ?better now than it has ever been.? 

 

 
  
  
 

?fian mumram'imm Immin- win-1 rev 

1mm 1 1m.
11 was. it 1 fume: 1 gammy 29311.; I 

    

 the foreign mdiV-iduals allegedly involved in tetrc?sm  whom-
?domestic. telephone numbers. and e~mail arddresses- Weree in Contact.
However, these FBI-employeesbelieved the possibility that Such contacts b1 b3

 

 

related-to terrorism. made .inVeetigating the Some ITQS b7E
Witnesses also told- Lie that 711 their experience the-FBI wasra? read-y awareaof 
  ?a-il addresses disseminated under
b1,
b3,
b7E
ed who
field offiCes. we visited.
ati?o-n developed b1,b3,
from} b7E

  

Information. He said that by Simply disseminating 
field offices in 13303 that often provided little in the detalls FBI
Headquarters effectively made the field offices ?insurance carriers,? placing

   

 

306

 

S?temmr?m I 164%" war I mwmea new I Imnmm 1r I . . a!
anulil wnmuu I niuvu] we; I Waiw?w??ul 

 

  
  
   

 

compared; to other counterterrorismleads the: office received because 
they  not provide su-ffiCien-t information for him the 

 ther supervisory special agent expresseda ?similar? assessment of.
stating that?he-felt-the: project ?perverted the logical iOf.
rig, He that absent the leadsrispecial statusas?part or 
I  l'QW'percentageof the tippers would-PhaVeTbeen Considered

 

   
  

 
 

Herold us that "he 'did?not have the; freedom to. prioritize 
the-leads: in the  lie-felt was warranted  the inferm'ation provided; 13733

    

m. 
Field: Of?Ce agents who inve

ofithe lack of datails contained in   about the-nature of the

terrOIis?t?cormection to the domestlc conta-it! or about the CO-ntact itself,

as the duration or. frequency of the- cal-ling activity. Some agents. We

int-Hri?ejWed hey'also occasionally Were: frustrath by prohibition. On bl,

 
   
 

ead?s also. 

      

1.1331 information in any judiCial princess, such as in: 133?
applications, although, none- could identify an investigation which. the b7E

  

restrict-ions adversely affected the case.

   

Most of the agents we intervieWedsviewed

. tippers as just
another typeof lead that required apr?Opri?ate- attention,

and the agent's- b1,?

 
  

 
 

 
   

     
 

generally i'd not-handle the" leads with-any greater, Care or. Sens?eaof'urgency b3,

than-non counts-rterrorism leads.  b7E
'More0ver, .none? Of?the agents . edpident?i?ed an

ieVese?gatiQ-n in their office in which ?.I?aYed a significant role,-

1:10?1?C01311d they recall how such a tippercontnbuted to  oft-heir 131,133,

  tonal terrorism cases. Nevertheless, the'agent's generally vie-wed b7E

 

I tippers as a potentially valuable source roofinrformation, noting-
that :he? information de-Ve10ped from, the investigations of tippers might

proveiIseful in. the future. 

Agents also stated that throughthe threat assessme
conducted of the subscribers to tipped telephone numbers;

  

they b1, b3,

 

 

 

?opened a Window? to populations within the field offices? jurisdictlon that b7E
374 The supervisor stated that ends had little investigative value to his

of?ce. First, he said the leads did not prov: enough detail about the reliability of the

infOrmat-ion being provided. Such details might include, for example, what other bl?

individuals had acceSsto the foreign t?eleplione allegedly used by someone involved in b3:

international terrorism, and how many calls were made from that. number and for what b7E

durations. These details would help evaluate the threat represented- by the foreign
number?s contact with the tipped domestic number. Second, the supervisor said the
tippers lacked direction about?what the office should do with a tipped number aa??
threat assessment has been conducted. 

 

 
    

 

 

IanO'Oii?; FBI Deputy- Director John Pi-stol'e briefed 
Committee on Intelligence concerning-the partiCipa-tion in-theT-Stelflar?
program. Aldocument prepared in Connection with that briefing
addressed, among other subjects, {the program?s Value-inFBI national
securityinvestigations. The document stated",

[S]ucceSSfu@l national "security investigations: are rarer the result
of agingle source .of'ithrmatiOn. Ra?ther?th'ey occur after
exhaustive. hDurs of investigationand the use-of [legal?proc?ess in
 shits  pieces of intelligence from: many Sources are
gathered and combined: into a Coherent whole.? The successor
effectiveness of any intelligence program Whether Stellar
Wind  committing else sometimes. dif?cult Jae-assess in
{the abstract because of that strains or
intelligence and because should neVe?r be measured
 terms of terrorist plots- that? have Visibly been disrupted?
but also-in plots that never, form-ed becau-Se. ourririires'tigatiize
actions themselves had a disruptive effect; (Italics in
- - - -

    
 

We interviewed Director Mueller inconnection 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 difficult to
quantify. Combination of various information, including humint?, sigint, and
elsur, is-necessaqr to address the global threat. Accordingly, it is not
possible to make. an unequivocal ?but for? connection betWeen a tip and an}r
particular FBI investigation that has resulted in a seizure orarrest.
I?Iowever, the information hasamplified, corroborated and directh FBI

investigative resources. 

 

 

?analysis. Mueller also statedthat to, the. e-Xtent S?uC'h-
  be: gathered and used legallyi'it must "be exploited. and that
  ?would :pOtenCy' of aprog?ram basied on: thezpercentage 6f
hits.? :ASke'd he was?familiarwith any ;spe"cifie: investigations that
representStellar Mneller said thatas'. a general matter it is;
 difficult lid-quantify thepeffe?ctiVeness of an intelligence program Without
leads that are. produced 'in?ord-er to? evaluate the role: the
program in?forimatiOn played in-?a-ny investigation. 

  

Wealso aSkedl Mueller about the issue of allocating ?nite FBI
re?sources?jztoresp?ond to Stellar Wind leads. Mueller-said that in ?the period
?ai?terthe September '11 terrori-St attacks, the FBI remained in a State of
continuous alert fer several years. Mueller stated that he understood the
President?s desire to take: every step to preventanother terroristattaek, and
believes, that it-Would be wrongznot to utilize. all availaljle capabilities "to.

?Mueller also commented
frustration with the Volume of
described complaints of ?unidenhftedFBI ?e d? ding. the lack of
information  the tippers: they received unde i and how the
high VOlutr-ie of?tippers neceSSitated devoting. signr icant resources. to What
were: ?dry leads.?375 Mueller said that the agent-8? frustration
was similar to that-expressedabout-other sources:er the: thousands of leads
 F131 received after September 11,, suCh'as calls from Citizens. Mueller
St??tedthat he- Understood the frustration associated with expending ?nite
rasources-on numerous leads unlikely ?to-have a terr?Oris-?ni nexus, but said
that his philosophy after September 11 was that ?no lead goes
unaddress'ed.? Moreover; he stated that frustrations can result from any
Counter'terrorism pregram; 

art?s, regarding Fl agents?
eads For example, articles

     
   

b1,b3,

We also intervieWed Kenneth Wainstein, the ?rst Assistant AttOrney'
General for. the Justice Department?s National Security Division, which Was
created in September 2006. Wainstein 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 ?getten a heck of a lot out of it,? but noted that NSA
Director?Hayden and FBI Director Mueller haVe stated that the program was

valuable 

Hayden told us that
and successfuh

  

 

375 See, Lowell Bergman, et al., ?Domestic?Surveillance: The Program; Spy
Agency. Data After Sept. 11 Led to Dead Ends," The New York Times, January 17,
2006'. (U) 

 

    

the Idea easie- help  
intelligeneebasie, :HaydEnalso observe that the enemy may noftfhatre been
  the  St-atesras much; 

Wind helped determine this,

   

Examples" of FEE Counter-terrorism Cases Involving Stellar
wit-metnrarmanon 

Part-0160111? review, wevsought. to identify speci??. F131 jnternatianal
terrorisminvestigations .in which Stellar Wind information was usedsandfto
describe the: information?s Spaci?c clozntributionSiO the We
agree  isr-a dif?cult- task in View-01.? the ?atma- of:
mesainvestigations? Which frequently-am Predicath on. ?multiple Sources-of
i?fdrmat-ionJ-To the extent Stellar Wind a rjglem an
investigationrth??ps Could be one of Several O?ianI-mation
edidver Altime  used by the. FBI to pursuetheinvestigatioh.

  agents and reyigw
Emu-Id? 'th Say that '?but'for? 5? Stall? Wind ?tiPPEf. axgiven- inve stisatianwou=1d.
 have' productive" "and they were unable-t0 recalls-Specifically?how; if
Wind intelligence may have caused..,their mvestigationsl to. take
a par?eular direction. 

Our. review did. not seek to describe 
We?recognize that FBI of?cialseqd  'r than-those
We interviewed might ha-?Ve had exp rienee with 3 A  
$108.6   shatter;

   
 
   
   
   

      
   
     
   

reporting was not idlssemmated to 'FBIfield' of?cesund'er
"my contribution the information might have made to

3 FBI personnel we interviewed were familiar with might not
have been acCoun-ted for in our questions about Stellar Wind an 

nformati?on. 

In View of these difficulties, we examined several investigations
frequently-Citedin NBA and FBI documents the 01G obtained during this

  

 
 

 

 

review a-s-eXarnples' of Stellar Wind information that contributed a 
iterteizrorijs?m efforts.377 Fer these investigations, we eXami?nej

Letterhead Memo-randa describing the statue-of inveeti'g

  
     

   
  
  

eeve

 

 

 

activities.  specific cases, Division responsest?e 011G. 
the role- 0' in specific. 13733

 led in international terrorism prosecution-s,  FBI-
"materialsmv   

   

 

"-3.77 As listed. above, the FBI was not the only customer of Stellar Wind information.
The CIA and the National Counterterrorism Center also received Stellar Wind reports
potentially relevant to their operations. Pursuant to a directive in the FISA Amendments
Act of 2008, Intelligence Community OIGs are examining the impact-Stellar Wind had on
their respective agencies or if Stellar Wind information contributed to their agencies"
operations. 

373 The brie?ng materials were prepared by the Communications Exploitation
Section shortly after aspects of the Stellar Wind program were publicly revealed- inra
series of ?New?York Times articles in DeCember 2005. The briefing materials were prepared

a

at the direction of FBI General Counsel Valarie Caproni, who anticipated that Director
Mueller and Deputy Director Pistols would be called to testify about the program. These
brie?ng materials were intended to help prepare Mueller and Pistole for their testimony.

The briefinginaterials include summaries of speci?c cases relating to Stellar Wind

information that were highlighted by the NSA. WW

 


b3; 
b6, . 3
b7C,?

'.b7E


b6,
b7C,
b7E

b1, b3,
b6,
b7C,
b7E

 

 

   

 

Ited in the FBI initiating investigations of
to'i'den?tii?y any involvement 'in errorism In
that the individuals? connection was b1, b3,
terrorism. However, in one case FBI b6, b7C,
individUal was in contact with additional b7E
engaged in. activities indicating possible

 
  
 
 
 

 
  
  

 

b1,
b3,
b6,
b7C,
b7E

 

 

l'Wh?D had-?com
  

b7E

was.? already undetinvestigaztionan 131 field foice; The
caUScd? the FBI office to C'o?vgrt. its prEIiminaxj?
afull invastigationsand Ob?f.?  

used by the: individual. The FB- -

mes and issued National A  I I
the FBI did notidev?lo?pi'any

 

. b1,
b3,
b6,
 b7C,
b7E

 

 

    

b1,
b3,

was? a natmnm e-Co-IJSPiracy 
7E

 .0: provide materialisupport to

   

  

L- - FBI 61'?
Cloggd; :fi?ld offices with
?t?subd?g'Sful3 dismption Opt-:1?

state; that aftg was 
frclated' 'i?vestigations Conducted
among a ?criminal activities that We'retidenti?ed

   
  

Course of the inves?gatiOns,. 

   

In]


b7E

b1, b3,
7D b7E

came to be Known by the Co' 

.384 

b1,
b3,
b7E

b1,
b3,
b7E

 

 

b1,_ .
b3, b?6,
b7C, 
b7E

b1,
b3,
b6,
b7c,
b7E

b1, b3,
b6,
b7C,
b7E

 

b1,
b3,
b6,
b7C,
b7E

   
 
 

b1, b3,
b6, b7C,
b7E

 

335 documents we reviewed do not indicate how this information was obtained
or Whether it was derived from Stellar Wind. 
that it could not be verified whethe



  
 

 

b1, b3,
b6, b7C,

b7E
316

TEMP I 1' 1' 

 

 

 

 

 

     

   
     
 

it is 110th thata'tmth?j
 LhadrFISA"COVeradem
. uACCOFdl?'?re dc 

 
  

   

FBI: briefing-materials state; thatthe FBI 1" t'b? surVeillanee of an
'i-nidiViduali-latei? defermined to 'be Th'reu'gho?peri 131,133,
soureefinvestigation, the FBI obtained the telephone number of the b6,
misidentifiEd :SUbject and. Was granted emergenCy authority-0n that 137(3)
17111 as in 'ated on the. telephone believed tebe b7E



the FBI employees- located at the NBA (T621111 10)
 teth NSA for call 0113111ng analysis mid comider?ati?cn
fer Stellar ?tasking,? or content collection. The N-SA initiated cont-erit
celleetien onrt?everronetms telephone number-? the same day. Contact;
number did no .
 targe?eteassociated numbers. 0?

   
 
  
 

 

 

   

      

b1, b3,
b6, b7C,

1,
b3,
b6,
b7C,
b7E

b1,
b3,
b6,
b7C,
b7D,
b7E

 

fer the; brie?ng mate-rials told.
Would 'have.:fiuredout evnt  

b1, b3, b6,
b7C, b7E

 

 

 
  
      
       

 
b7c, b7E 

. bl,
b3,
b6,
b7C,
b7D,
b7E
According'to resenta?on about the role

 .ipper ?facilitate: the 
in a timid
Tailed- toy bl? 133? 136?
b7C, b7E

      
  

res?lt inanoti?ca?dn to" the FBI of
throughSte?iaf ind inform? 
 suweinance I. -

b1,
b3,
b6,
b7C,
b7E

 

 

 

 

 

 

 

b1,

b3,

b6,
b7C,
~b7E

b1,
b3,
b6,
b7C,
b7E

b1, b3,
b6, b7C,
b7E

b1,
b3,
b6,
b7C,
b7E

b1, b3,
b6, b7C,
b7E

 

 

  

 

 

 

 

136,
1370,
b7E

b1, b3,
b6,
b7C,
b7E

b1, b3,
b6, b7C,
b7E

b1,
b3,
b6,
b7C,
b7E

b1, b3,
b6,
b7c,
b7E

 

1,
b3,
b6,
b7C,
b7E

 

b1, b3, b6,
b7C, b7E

E31, b3,

b1,
b3,
b6,
b7C,
b7E

 

 

 

 

 

 

 

 

?bl, I
333,
136,.
ib7C,?
b7E

1,
b3,
b6,
b7Ca
b7E

 he FBI applied for and obtined a PI Arorder tn

b7C
b7E

b1, b3,
b6,
b7C,
b7E

 

 

   
   
   

   

    rec?mmend?d that tha FBI cite vestigat'ion
"an i?examp-le- of :Stellar contmbution to-
e. Grits. The FBI brie?ng materials 211' "te that the.

I -- I becoming the

  
 
 

    
  
 
 
   
  
  

  

  

 

  response to the} recluesration 

DiVisyi'on told 11 tha ,ased on its sea 'h

nS?With'thc rcaseag?en?tsfno

vestigat'ion. Accordi??'to a?

 investigation"?didsnot c?y lead tear-1y 15  timid? ?vidence
th washujsed in the pro?secutibn of the case against and Was not

into  application to a court, includmg th 

 
     
 
   
  
 

        
  
 
 

  
  
 

 

 

 

b1, b3, I
b6,
b7C,
b7E

b1, b3,
b6,
b7C,
b7E

b1, b3,
b6,
b7C,
b7E

b6,
b7C
b7E

b1,
b3,
b6,
b7C,
b7E

b1, b3,
b6,
b7C,
b7E

 

 

"it; on analysis. (in.

    
   

The?FBl..created_ the
 asgl'eads to] FBI is a 

project to- disseminate Stellar  b1,
I a :c and Team 10  ?bg,
 NSA towerk on Stellar. Will?df?ll-vtlme for this purpose. We foun?d?that b7E
the coalocaticn improved the FB?I?s?knowledge about Stellar Wind I?Operaticnsx.

:and,lgav_e? the NBA {better inS'iglItsabout how FBI field offices -?inVest'igated

'=Steliar Wi?dx'inferrnatiorn We Weretold these benefitstrans?lated to

a   It? repert 

       
 
  

 

One of the Chan eS-the FBI implemented to attempt to improve the
investigation of leads was to make FBI b1,
 Tin-stead of tHE'M?EIHEffices, responsible for issuing National Security b3,
toobtain subscriber information on tipped telephone numbers b7E
and Erma addresses. 'Thisme ted in July 2008?, Was intended

to, :add-ress agent concerns that leads didnot provide sufficient
[information to: initiate national security stigaticns, .aJp-rierequissite under.
 Departmentinvestigative guidelines-to issuing NSLs.

  

 
  

   

 v' 

Howieven we, found that the CAU issued the NSLs from the
rion~investi 'ative. ?le created in September 2002- to 7
repository-foe :related communications between FBI
Headquarters eld-Eeffices. Issuing the from a- control? file instead
of. an file was central to internal FBI policy. The FBI fatally. b1
spacernwestigative filegfcr  project-in November 2:006. b3?

b7E

  

   

 

  
 
 

 
 

sui?ci ?t?predicatmn either to connect th
preliminary cr-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 also concluded th 
BI vould have, and should have, opened an investigative file for th
r'oject wh ion first was made to- have FBI Headquarters

issue NSLs for leads. 

We also described in this chapter a change the FISA Court made in
March 2004 to the. ?scrubbing? process used to account for Stellar Wind
infermation in international terrorism FISA applications. The change b1) b3!
requires the. Team 10 and FBI OGC, in coordination with the b7E
Department?s Of?ce of Intelligence (formerly OIPR), to determine whether
any (telephOne number. or email address) that appears in a FISA
application also appeared in a Stellar Wind report and, if so, whether the
FBI had deveIOped, independent of Stella Win - vestigative- interest in
the facility before it was the subject of an tipper, or whether the

 

  

 

  
 

  
  
 

 
  
 

 

 

facility would have been ?inevitably discovered.? Pres-iding-_
Judge Kallar-elCotelly imposed =this?--addit10nal scrubbing. requirement-after
being. advised ofi'rnodifieations made to Stellar Wind i-nMa-rch 2004 follo?W'ing
the Jusaee' fapartmentsrevised legal analysis of the program. The FBIrand.
Office of Intelligence continue to expend significant resources to; comply with
this HOWever, we did: no?t findany' i?nstanCeis of 
the reguirement causing the FBI not able: to obtain; FISA SurVeiillan?c'e
corerage on t'a?rget; 31 QC j?

primary focus in this chapter was to assess-the generalrol?e. of
Stellar Wind information in F131 investigations and its value to the 
overall counterterrorism effort-s. Similar to- the FBI, we had difficulty
assessing thers?peeific value ofthe program to the: FBI's counterterrorism
activities, . Hewever, based on our interviews of FBI managers and agents-
 :our review of documents, and taking into account the substantial
Volum??' Gileads the program generated .for the FBI, We concludedthat?
information produced under the Stellar Wind program had
Valuers some, counterterrOILism investi?gatiOns,sit played a limited role in the:
FBlisioverall counterterrorisrn efforts. 

The-vast majority of Stellar Wind information-the. .proitidsd the;

   

FBI related to telephone numbers-x-ande??ma?il addresses the NSA identi?ed
 1?ough meta data analysisas: individuals- believed to" ME



     
    
  

 

 

FBI agents and with experience investigatin bl? 133? b7E

leads told us that most leads were determined not to have to

 

3?99 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 program officially was clOsed, leads the NSA developed fromthe
FISA?authorized bulk meta data collections were disseminated under the Stellar Wind.

 
 

compartment. 
400 Statedanother way, the Stellar Wind program generate, 131: b3,
leads for theFBI' each month from October 2001 to February 2006. b7E

 

 

   

represses

ht?l?l?OflS-I?f?lld- they. did not identify for :us any specific cases where leads;

helped-litheFeiidentify previously unknowa in terrorism.
?(elthengh-several stated that this did cecur). _'Thi_s is-not surprising given:
that-the vast majority cf leads sent to FBI field offices for investigation

eericerned?telephone numbers ande~mail addreSsesthat. theNS?A already

had determined were atibest one or two: steps. removed from numbers; 

addressesasu.spected of being used by individuals believed to 'beinvolved in.



regrets; two statistical studies that attempted to assess the
.is'igniacanae? of Stellar?Wind meta data leads to FBI connterterro?sm efforts
did onclusions on the pro?ram?s usefulness. The first
samples taken from meta data leads the b1,
in approximately October 2001 to December .2005, 133,
made ?significant? contributions. The b7E
I scone: Si; ticalxistudy, which reviewed eac ?rnail tippers the
NBA provided?the FBI from August 2004 thrOU'gh-January 2006, identified
of ?significant? contributions" to FBI: co-un-tertermrism efforts-.401
The-E31 QGC-?toldus that FBI executive management?s statements in.
congressional testimony that the Stellar Wind program had value was based
in pastor: the results of the ?rst study. I 

While we believe Stellar Wind?s role in FBI cases was limited,
asseSS'i?D?g the ~Value of the program to the FBI ?8 overall counterterrorism
efforts is more complex. Some witne8ses cemmented that an- intelligence
program?syalue 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 thatthe, 
terrorist threat embedded within the country is not as great as once feared.
Witnesses alsosuggested that the value of the program should not depend
on; dccumented ?success stOries,? but rather on maintaining an intelligence
capability to- detect potential terrorist activity in the'future. 

   

     
   
 

 

     

   

 
 
 
 

lwe interviewed "generally were supportive of the Stellar

Wind (or  program, calling the information ?one tool of manyefforts that ?could help move cases forward? by, for b3,
example, confirming a subject?s COntacts with individuals involved in b7E
terrorism or identifying additional terrorist contacts. However, FBI

personnel also. frequently noted for us the deficiencies in the Stellar Wind
information disseminated to FBI field offices, such as the lack of details

 

.As described earlier in this-chapter, the FBI considered a tipper ?significantthreeinvestigat-ive results: theidentification of a terrorist, the deportation
from the'Un?ited States of a suspected terrorist, or the development of an asset that-can

repert about the activities of terrorists. 

 

 

?alboittg- theforeign individuals allegedly-involved 'inrterrOrism With Whom
domestic telephone numbers-and email addresses were- incontac-t. Yetj
these: 3131 employees also believed that 
 tartariism'vm-ade investigating the e.mpl0yees-
also Egited increased CQOrpsration international 
terrorisrnin'atters asta sid'e'benefitof the-Stellar Wind program.

2.)

Mueller? told us that he belieVes the: S?tell'a'r- Wind program
was useful-an. that the: FBI innst fellow eVely'leaclei't receives in Order to.
prevent-futureterrorist attacks; are absolutely
eSSential?' to this task and called meta data the-?key? 
communioations analysis. Mueller also stated?jthat to the extent Such
information can be gathered and usedlilIEigally it mUSt be. exploited and that
he ?would not dismiss the potency of. tat-program based on the percentage of
hits-i? . ,2 i  7 

   

 

. ?Weusought {to look beyond th?eSetcommen-ts of?gener-al support for
S?tellarJWind to specific; concrete examples Qf?the program?s contributions
that illustrated: thero?le Stellar  information We-
thei?e?fore-r?eXamined five cases frequently-eitsd indocuments We?reviewed:
   

      
   
    

 

b1, b3,
b6,
b7C,
b7E

b1, b3,
b6, b7C,
b7E

 

rrest and conviction, it

value? in the c-rirni 'al investigation that led-t I
security investigation that

was tipper that led toth?enanon
precede. nalprosecution; a 

    

The final investigation we examined  7 appear to re'Su-l-t
tells-r Wind information; The 'NSAiand the FBlat times have b1? b3?
:Case?as an example of the contributions of Stellar Wind to b6?b7c? b7E

  
 

 

bl,
b3,
b6,
b7C,
b7E

   
 
  
  
 

.. 
which appear-s *to- hate been. advance-<1  

reporting, might-have caused theIFBl to reopen. tits iave?
wewer'e unable; to describe with-the same: Certainwas 
investigation the extent of Stellar Wind?s contributiOn 
investigation,- in part bleeausc- of: differingassessments 
docmnents regarding the role of Stellar =Wind? this matter.- 

 

In short, we fotmd that StellarW?indxgenerally has played 
role  but 'thatczt?he 
there are cases. where Stellar Wind?iinforrnatigon had. value. For- exam-plain
some,  cases we  Wind ?infarmation caused  to
 action that led to useful investigatiVeresmts. However; in othersthe-
conneetion. between the Stellar information and the FEES: investigative
actions-Was more dif?cult to discern; 

.A?s diScussed in Chapter Five andiin this chapter, Stellar Windsz bulk
meta data collection activities- were transitioned to PISA .author' I
The FBI, under the succesi'SOr'to
requires ?eld offiCes to conduct?ail? minimum, threatassessments on
telephone numbers and email addresses the dEriveS-from this b1 b3
FIJSA?authorized collection that the: FBI is notalready aware of, including b7?E 
numbers and addresses one o'r'two ?steps remQVed from. direct contacts With?
indiVidu?als? involved in. terrorism. In view 'of our findings .abOut the Stellar
Wind program?scontribution to theFBl?S counterterrorism efforts we
believe that the FBI should regularly assess the impac
have on FBI field. offices and whether limited FBI resources should be used
to investigate all of them. ,1 Ni?)

  
     

  

 

Another consequence of the Stellar Wind program and the 
approach to assigning leads was that many threat assessments were
cenducted on individuals located'in 'the'United States, including U.S.
persons, who were determined not to have any nexus to terrorism or

 

 

   

represent a threat to national security?m' These. assessments also: caused
the" FBI ton-collect and retain a signifiCant amount of: personal info rmatiOn
ojf --tipp_ed telephone numberseandr e?maisl addresse 'In
[addition- to -  individual?s name  home address, Such information could"
 where the person. worked, records ofgfore?ign; the identity
ef?familymembers. The results the 
information  was-Collatztedwgenerally were reps-ritc?d? 'i?HCOmfniinicatiOHS-- to
 and; uploaded into FBI databases.

 

The collection of  per-son information in this manneris
ongoingunde-r the. FISarau'thorized bulletmeta data collection. To the
extent 'leads. derived from this programgenerate-reSults similar to those
under Stellar Win?d,- the FBI will continue to-col?l?ect  retain asignifica-nt
"amount of information about individuals in the United "States, including
 person's, have-a nexus to terrorismyor represent? a threat to
national Security. 7 7 

   
   

We' recommend that as part-of th project, the-Justice
Department?s- NatiOnal Security the F131,
should. Collect information. about the quantity of telephone numbers and
e?niail? addresses disseminated- to FBI?fiBldOf?C?S-that are assigned as
Action leads  that require offices to? Conductethreat assessments. The
information compiled should include Whether individuals threat
asseSSments are U.S. or .noneU.?S?. per-sons and-whether threat 131,133,
assessments led to-?the?: opening-? of preliminary or full national security b7E
investigations. With reSpect 'tothre'at ?conclude that u'Sers
of tipped telephone numbers or email addresses are 'nogt'involved in
terrorism and are not threats to national security, thee-Justice Department
should take'st'eps to track the quantity and natLire of the person
information collected and how the FBI. retains and utilizes this information.
This will enable the Justice'Depar'tment and entities with oversight
responsibilities, including the OIG and congressicinal 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. W)

 

b1, b3,
b7E

 

 

 

 

 reeom-Inend that, consistent witrh?NSDis current OVersight.
as par-ital? its periodic. reviews of national security
investigations..atLFBIHe"1 i and ?eld offices?, sheilld review a- b1,b3,
.representative-sampiing leads t?oyth'oee Offices, b7E
 NS'D'ishould asSeSS- FBI compliance  applicable egg-1
requiternentS-?in the-use of the lead and in any ensuing investigations,
1 particularly  the requirements.governing the. CollectiOII and use ?of 
?ersbninformation. its; ,1 av [00/ NF) 

     
 

 

in sum, we agree that it is dif?cult to assess or gnantify the
effectiVene'ss of a particular intelligence program. HoWever, based on the
inter-Vistas- we -'conducted and dOCuments We reviewed, we found?that Stellar
Windin-format'ion generally played a limited role in the 
Counterterrorism.efforts, but that the information had valuein some oases?
Ingaddition, Some witnesses said the program provides- an -"?early warning
syStem?? ?tovailow the Intelligence Coinrnunit}r to detect potential terrorist.
attael?cs, even if?the system has not specifically uncovered evidence-rot
preparations fer sttoh an attack. Moreover, other GIG-s in the Intelligence
 are reViewin-g their agency?s inVOlVCmEIlt'With the program and
the results-of those reviews, analyzed together, will provide a more
eemprehenjs?ivegicture of the program?s overall useiulne-SS.

 

Finally, because the bulk- meta data aSpect of the Stellar Wind.
pregram continues under FISA authoring we reocmmend that the N81) take
steps to gather information on the centinu'ing operations of the prOg-ra'm,
ineludingithe Use and handling of vast amOunts of information 
perSO'ns and the effectiveness of the program in. FBI ecunterterrorism

investigations 

 

 

 

 

 

 

 

SEVEN



 

in this chapter We: discuss theug'overnrnent?s statutory and judiCial
diSjcov?ery i'ohligations. in international terror-ism Cases- relating to Stellar a
information, Under the Stellar 'Wintl program, the-federal
government collected vast amounts of info rr'nation, including-the :-eoniten't .?of

cations  meta dataabouttelephone-rand eem'ail -
citizen-s and non? . 

    
   
 
   
 

   

       

otentially triggering an obligation und the Fe era.
5 or al Pro edure and applicable 'caseflaw fer the _:govern-ment "to
disclose certam information. to the defendant, This obligation created a
tension between the need to, protectthe secrecy of the Stellar Wind program
and the need to comply with legal disclosure requirements.

 

In this chapter, we examine the process by which the Department of
Justiceattemptedto resolve this tension. and meet its discovery-obligations
to criminal -defen'dants.403? (U)

l. ReleVant Law (U)

The government?s obligation to disclo'Se Certain statements made by a
defendant-and .to diisclose other information-concerning adefendant in a
criminal proceeding comes primarily from two sources: Federal. Rule of
Criminal Procedure 16. and the US. Supreme court case a.
Maryland, 373 US. 83 (1968'). (U)

Federal Rule of Criminal PrOcedure requires the
gavernrnent to make various disclosures at. the request 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 defendantis
request, the government must allow a defendant to inspect and copy papers,

 

??03 In our review, we did not seek to determine what the government disclosed in
Specificca'ses. Rather, we focused on the adequacy, of the process that the Justice
Department implemented to comply With its discovery obligations in cases that involved

'1

Stellar Wind~derivecl information.

 

 

documents, data, a-nciaother the item is witl'iinitlrie gorernmEIrtis
possession, control?" and the item is material to 

- defense the government intends to.) use the item inst-its case-V-irrchief. at trial;
or the: item?Wa?s; obtained from or'beilongs to the defendant. (U)

Under Rule 16., adefendant?s statements carry a??near? presumption of:
releases? a?id-  Pde?uction off-1 defendant?s, statements;- has 
fpracti'eally lam-sitter Of right even without. asho?Wi'ngf of materiality-3? United
 v. Yu-ni's, 86-7  26317,; 621-22., 625 Circuit. loser??
(EU)

Disclosure of a defendant?s statements is usually made by the
government after receiving a request pursuant to Rule 16. HoWeVe'r?, even
  a. Rule 16 request,. a'defendant- has an independent rightito
discovery of his statements and certain other relevant information under
rady'; v; Maryland, 373 U.S. 88 (1963). Brady requires the gavernme?nt to
disclose- evidence in the defendant and material
to: Material be disclosed if iris
exoulapatory or: if it could?bei used to impeach a witness. 

 

H'owever, according to the. memorandum, when production of the
defendant?s statements or. other inefOrmation wouldreveal classified
information, the government may assert a national security privilege,
sometimesknown as the state-secrets privilege.405 If the government
asserts a ,oo'lorable claim. in. a legal proceeding thatclass'ified information is
privileged, the defendant must show that the information is-not only

 

?404 'See also United States v. Scarpa, 913 F.2d 993, 1011 Cir. 1990), citing
United States v. McElroy, 697 F.2d 459, 464 (2nd Cir. 1982.) (?Rule 1-6 does not cover oral
statements unrelated to the crime charged or completely separate from the government?s
(U)

4?35 Counsel for Intelligence Policy James Baker told us the memorandum was.
drafted athis request?by an Assistant U.S. Attorney Who had been detailed to (NPR. Baker
said he requested the memorandum to refresh his understanding of the government?s
discovery obligations in Criminal prosecutions. (U 

+100 The state seeretsprivilege is a common law doctrine asserted by theUnited
States'government to protect claSSi'fied infermation. See generally, United States v.
Reynolds, 345 U.S. (1952). (U)

 

 

 

 

initially arose i  

 

mime-mt but material;  the: (?e-fondant can. show materiality, some 
rbat-la-noe'th? defendant?s. nie?d for'diSCLQ'SuretagainSt the-government73?

x-subs-?tantial inferno-St :in? protecting Sources: and methods-rassooiatod- With the

S??Siti?Ve infrmation-., See United States-g1). 
(g?nth :Cizl? 19.88); United States-.12. Smith, 781 F.2d 1102, 19:85:)
{on-bane). (U)

.. 7agavernmentcangalsoinvoke  Classified Information.-Procedures.

Act 18M to: 

:pro?_SECutions. does not exlo'a-nd or ?lim'itia defendant?s diSQoVery
under Ruiz- '16:.3jrather, CIPA. allowswa- court, ?upon ausu-ffi-cient showing? to
authorize the government :toudelote specified. items (of-Classified information
fme otherwise discoverabl?: documents, subStituteqa summary-of the 

information or stipulate; to re'lcvan-t facts that the classi?ed information

would tend to prove. (U)

As detailed. below-.Vafter- aspects "of the Stellar Were,

The ?NeWYo??fTimes and canlfirmedrby Brasi'dentin-

      
 
 

  

December 2005, the Ju

Stice" Department invoked-0.1m 't disclosura

 if 

  

  
 

11L. Casas Raise Questions about 'Gnvernment?s compliance Wit-h
Discovery Obligations 

The. tension betwoen-tho- hi.gh1y-olassifijed nature of the Stellar Wind
progr'gmand   bk" atibnsincriminalpases b1,b3,
 .. b7E

 

 
 

    
 

 
   
 

 

b1, b3, b6, b7C, b7E

b1,
b3,
b6,
b7C,
b7E

b7c,
3-35; I b7E

 

 

 

celleCtedundE-r .?discoverable- and, more
_?;g?zcn?rallyi hQ-wi the Stallar' Wind mightbe. treatedin the
discovery obligations in criminal _?prosecutio?ns;

  

Baker-said- herai-Sed these. iissueS? with Attorney General Ash-Croft, FBI

Mueller and other Justice Department, FBI, and b1,

a- ?rst be made b3,
Wh?tihgr. t-h .. ubtained-?through? Stella-f Windam; b6,
werecgptu? a fore could ?B'akerrsaid it b7c,
tur:nedQL1t  7, ad underFISA-sand b7E
C??lfdli bewprOdtLCed? under-that authority. rather than as a? result 0531:6113?-

 Baker told the  that he Was relieved by this ouitbor'ne,
butcontinuedfto be 'Cpncerned-abQu-t future cases?

  
 

b1,
b3,
b6,
b7C

b7E

b1,
b3,
b6,
b7C,
b7E

 

 

   
 
 
  
    

 

 

b1, b3, b6,b7C,

 

I recommended to Ashcroft that the
S?tic D?eartmentvnotdis: 036 the Stellar Wind program intercepts to the
MOD subsequently memorialized his advice in a b1 b3 b6

memorandum .
b7C, b7E

b1,
b3,
b6,
b7C,
b7E

337

 

True? swumm?fi isn'me 1? muss umumt/ Nu??kl??

 

1 It .- I I  as. may b6}  

b1,_
b3,
b6,_
b7C,
b7E

b1,
b3,
b6,
b7C,
b7E

b1, b3,
b6, b7C,
b7E

 

 

i 1? @muum 

 

 

 

 

 

 

 

 

 


 
b7c, 
b7E' -

 

. JuStice Department review of his lactiOns, Yoo has
acmioi?edged that he is not well versed in criminal law. During an
 Department?s Office of Professional Responsibility (CPR)
in cenne?ction'With its investigation concerning his legalopinions in support
Voila:detaineeinterrogation program, Yoo stated that ?criminal prosecution
process  theDepartrnen-t was: not my Specialty,? and ?criminal law Was not
my: area-Mm?  I i 

 

E131. Criminal Divisioia Examines Discovery Issues (U)

    
   

Folilowin? the Justice Department?s Criminal
iiyii'sionwasftas ceve oping procedures for handling Rule 16 b1 b3 b6
disclosurehusbcause the issues fell within its area of expertise. As 9. Mb b?7E?
Remain 0' bx? Patrick Rowan, a senior counsel in the Criminal 
Dirision, was, read into the program to deal With Stellar Windmrelated
discovery issue?s. ROWan?s supervisor, Criminal Division Assistant Attorney
General Christopher Wray, was also read into the program at the same time.

   

b1, b3,
b6, b7C,
b7E

 

to detainee interrogations. Yo'o drafted legal opinions for this program while in the Of?ce of
Legal Counsel. Ploweizer', as discussed in Chapter Four, in contrast with the Stellar Wind
program at least fourother OLC attorneys assisted 'Yoo with drafting the legal memoranda.
also? able to consult with Criminal Division attorneys and the client agency on this

matter. WW

 

 

 

 

 

 

We?? th??i? 51: Department attorn?ys with criminal.
IDiviSi-Gn?level  for terrorism Prosecutions to instead into the.
Preemie   I  - 1

   

?Wray?tolgdl'theOIG that after-his and Rowan.?s read-win, they ?Were-kind
(if left. on om?  He said- that? noao'ne directed or Rowan to. continue.
studying-the Rule 16 issues or'the governments Brady obligations in
international terrorism proseoLitions, nor-did anyone tell
 to develop-any judgments of opinions on  subject. (.U)

  
   
  
 

 Some'point after-his- readis-in he may have read

Yoo?   memorandum, on the Department?s discovery b1,b3,
obligations] in and he instructed Rowan to review the b6, 1376,
memorandum; Rowan. told- us that he Was familiar with 'Yioo?s b7E

memorandum, but stated that he could not recall whether the purpose of-
-Yoo?srmemsrand 'tola "Ouztfi?'ge?eral the pertinent legal issUes 
. document how 11. particular'was to be handled. Rowan
litC?d 'havingiany Problems with the conclSusiOris. Ybo
reached,  . . .  

 The ?I'nf0rmal Process? for Treat-ing- Discovery Issues in
International Terrorism Cases (U)

  

   

During-his interview, Rowan described the processes at the
Departmentprior tothe. December 20052 disclosure of aspects of the Stellar
Wind-program in The New York Times to address discOver}r obligations with
respect to Stellar WindmderiVed information. He'Saidrthat 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
 others inthe Department. AceOrding toRowan, the general
awarenessof the Departments international terrorism docketamotmted to
 ?informal presses? for Spotting cases that may present discovery issues.
RWan- stated that prosecutors in U.S. Attorney?s Offices typically Would.
request the NSA to perform ?prudential searches? of its databases for any
relevant information concerning their prosecutions, including fer discovery
purposes, although this did not happen in every international terrorism
case. Rowan stated that if the NSA located any responsive but classified
information, it would be expected to notify senior Justice Department
officials with the requisite Clearances about the information. said he
Was confident that if Brady infermation were-known to the NSA, it would be
brought to the? attention of the Department and steps Would have been
taken. to dismiss the case or otherwise ensure the prOgram was not
disclosed. 

In addition to these routine communications between Department
prQSecu'tOrs and the NBA in criminal prosecutions, Rowan described other

 

 

measures'that Were in place .tokeep Stellar Wind?derived information out of
the criminal prosecution process.  stated- that. the FBI had ?Walled off-?1'
  collected. from inclusion asesby tippingout:

- Stellar information under  11th- a? caveat. that: the b1,- b3,
i?formation in?l?i'tipper was Rowan notedithat WE
had  place a; scrubbing-processto deleteprogramsderived,

informatian from FISAiapplieations, Rowan these
was used in 
international? terrorism prosecutions?l?? Finally? Rowan stated that the FBI
  get up,? thereby-minimizing: thelrikelihooct  the?

database would be the sole repository of Brady material.

,1 foe/Ne,L -

    
   

   
    
   

B. Dis

n.  a, COVer-E?ssaes-Raisecl
he'fS?tenar Wind?Program? - I  

I: 

 
 

  
    

 GI.



 

  
 
 

.   ed? (in-thermemorandnm? largffily ale 
C: ,aSionally with  Rowan ?saidvitWa's .diffieultFtoWork
 the matteribeeause' o?fzthe secrecy surrounding- the program-and the
gf'hi'sjob?iw4'15 .A?s_disc1Issed in Chapter. Six, the caveats were intended to exclude-1 at  outset
any Stellar- Wind?derived information from FISH appliCations and othercrimmal pleadings.
The .s?crubbingprocess acts as alsecond Cheek-against ineluding  information'in FISA
applications. However, neither the caveats nor the scrubbing process relieved the
government of its obligationsunder Brady to disclose evidence in the government?s
possession favorable tothe 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 (andv'ery few in the Department,
 l, we have been Unable to assign work to others or to fully consult with others

     

b1, b3,
b6, b7C,
b7E

 

 

 

 

b1,
b3,
WE. 

bjl,
b3,
b7E-

     
 

   

For cases in which the Intelligence Community

 :nagctive:involvement in the, criminal investigation, the USAM stated
that thereuare two circumstances in which the prosecutor must conduct a

?guitable search? of Intelligence Community files: where the prosecutor

has ?direct or reliable knowledge? that the Intelligence Community

bl, b3, b6,

 

 

Brady or other discovery materialeor,  in the absence
*of' Suits-h'lenowledgle, Where ?there nonetheless exists-any-reIi-able indication
 'thatil?the Intelligence Community possesses such material

anSAMi Criminal Resources Manual 22052 (20:02). The USAM stated that,

I "as. augeneralrule, a prosecutor should not Seek access to Intelligence 
files! unless there-Tie an af?rmative obligatiOH to do. so. However,
'itnnotecl that certain types of cases, including terrorism prosecutions, fall
genera-1  In. Such-case's, the .ad-Vilsed that the

 should conduct search.? Id.

 

Roman 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 USA-M, initiating:
searches-out of prudence, rather than a legal obligation.? For instance,
 the practice of the Criminal Division?s
"QjounterespiOnage Section was to search Intelligence Community files
 away cage, even in 'i'nstancesfinqwhich: the. Intelli emcee Cbmmunifty
lad eat 

ig'elice? collection concerningthe defendant as"?isuggested by
the faets of the 'rnatter.? He added that the searches were requested 'fOr a variety of 
reas0ns, including; for purposes of meeting dichVery obligations. Dionnsaid that searches
also were requested to determine whetherthe defendant. has a*?re1ationship? with an
intelligence agency. He noted that CES does not request prudential searches as a matter of
courseito avoid making spurious requests 

     
 

 

   
 
 
 
 
  



   . ion said was a. proponent
118 prosecutors With-Whom CBS Co-prosecutes? cases should have the
same knowledge-as C-ES concerning the ?national security equities" involved-in each case.
Dion/said this arrangement also allows for the who is often the prosecutor most
familiar with the case and the jurisdictional practices, to review any Intelligence
Community material fOr Rule 16 and Brady purposes. Dion acknowledged the limitations-
,tolth?is arrangement concerning strictly com-partrnented programs?such as Stellar Wind,
where the NSA Understandably'would.be reluCtant to read in line prosecutors 'for?the

limited purpose of screening defenSe discovery requests. 

 

 

 

"was for  attorney to use the provisions of to prevent disclosure

?Offsetgi?itivefmaterial. Rowan noted that other sections within the Criminal

 to protect Intelligence Community ?les found
1- -  

 

 

 

When RoWan became principally responsible for coordinating the Department?s
defense discovery requests as a Deputy Assistant Attorney General in the
(Cont?cl.)

 

 

C.

 
  

 Shortly before. Roiwan finished his. memorandum


Principal. .e'putyzASSiStant Attorney General-Steyei-Brad ury?biecam? he:
acting-head of 0L0. B'rad?bul'y told us: that hereealled-havingsome 
discussion with Rowan about-how:disc0very matters should be-handle "in
 With the Stellar Wind program. Bradbury Said that John-
'Eieenberg; later a Deputy in have discossedthe matter With
2  zeradeury? stated thathe- did not believe that followed up on
RoWan"s request that it continue researching these issues.

   

-..  b1,b3,
ed the Rule 16 lss-ue With Rowaniat b6) WC,

Eisenb?erg told us that he discuss.
eussed theBrady issue. He, WE

semezpoint, but did not I I
recalled ?di?souSsing Yoo' emorandurn:With-Rowanand
said-behelieyes  Jens ?oepar.  took  pesiti'on' that theY?o?o

  was?icorreot, at least With. respect to Yoo?s?legal analysis in



When we Showed Eisenber?g a copy of Rowan -
memorandum, thathe?h?acl notip 
Eisenberg. tel?d?usf that 0 LC would" not-typically beresponsible for
addressing  disecwery issues presented in Rowants memorandum and
that he was not aware of any opiniOn on ?the'subjeotvother than lino-is
 Eis'enbe-rg also jsaid?he-was net aware Of  ferr?n?a'l
proeeduresfor handling Rule ,16 disclosure requestsor the go'irernmente
affirmative Brady obligations Other  the. experte in camera motions
practice pursued by the National Security Diyis'ion, discussed below.

        
   

      
 

   
 

 
     

 

Chief Dion agreed that OLC would 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 procedures for
handling discovery of Intelligence Community files, it should. be done by the
Department?s National Security Division in coordination with United States
Attorneys? Offices, 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. Of'tli'ese sea'rohes were produced to the coUrts ex

paras saga, pursuant to CIPA. WW)

 
 

The 

 

- would hairs on the government?s Brady obligations-

 

Wray? also told us that there W'asino organized Departmental effort to
establish ifOrma-l procedures for reviewinginternational terrorismr
"prosecution-s to .comply'with Rule 16 diSCI'osure? requests and? Brady
HE Said ?the thinkihg it'l?iait'the? memoir-ancient Was-
the. "?fir?St step? toward devising, ?Some kind wof. ?SYS'tem'ati'zeid process,? for 
ravigws, waever,we found'nonindicati-O?  
request to further studytheseidiscot?rery issuestwith any, of written
product. :9  T-    

 Use Of the Classi?ed Information Procedures Act (QIPA) to
?Re3p0nd to: Disemmry Requests 

After publication of The New Yorkaimes article's-in December 2005;
the Justice" Dapart-iment received. numerous disecw?ry requests in'coenection
with international? terrorism prosecutions throughout the country. After
'?e?eseiart'ioles, additional of?diails- in the- were read into the
Stellar Wind program, including the new AsSistant Attorney GeneralAlice
 other {Senior officials, both to irass?iTSt. With: the Criminal} 'DiviJSion?s .
investigation into; the - leak-sot? information to ThelNe?W York Times and: to-
hand?lef'the discover-y requests fellas/ring; the public confirmatioir of the
program by the President in D'e'Cei-niber
2905;493 After the National security DivisiOn was createdinSeptember
270.6,. it assumed much of ?the responsibility for-handling: therespo?Se?s to
idis?oc?J?Very'requestsTypically; the defensemotions sought 'tolcompel the :goVernment to
produce information concerning a defendant that had been derived-from the
?Terrorist Surveillance Program,? the termsometimes used by the
government to refer to what the President con?rmed after publication of The
New York Times articles. The government reoponded to the discovery 
requeSts by ?ling ex parte 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. 

 

 

 ovewiewor CIPA an)

The Classified Information Procedures Act. 1-8. App. 3, ?vvas.
enactedin 1980 to provide proceduresfor protectingclassified: information
in federal criminal-.prosecutions. When a party to a criminal proceeding
.noti?esthe COurt.~that: Classified information will .be used in the course (if-the
proceeding?. CIPA- requires the Court toinitiate-procedures to ?determine .the
use, relevance, 'or'admissibil?ity of the classified information that would
'oth-emise.lbe made or pretrial proceeding.? 18  App. 3'
Where the government holds the. claSSified- information,rit maybring?
tin-smarter beforezrthe Cour-t .e'x?parte; but it also must provide notice to the
defense thatclassifi?ed information is at lesue. Id. at? (U)

ProteCtive procedures generally are established through a CIPA
hearing-With both parties present. "The hearing may be conducted in
camera if thet?government certi?es: that all in camera. hearing is necessaiy to:
pro-tee:  classified. information. 'Id. :at Typically, the government
an order-to protect against the disclosure of any ClaSSi?edinformation
tether defense.- Thegovernment may also seek to withhold produCtion o?f-the
o?cl?asrsiifi-ed?information in one of three ways: (1) deletion of the Classified
the) materi-aldis'closed to the defendant, (2.) summarization of the:
Classified information, or admission of certain facts that the classi?ed
information wouldztend to prove. Id. at 4. Based on the review-of
CIPA filings related to the Stellar Wind program-, the government has only
used optiOn 1 (deleting classified items? from material tobie disclosed to the
defendant?) in response to defense motions for Stellar Wind information.

 

To prevent the disclosure of classified information, the government
may make an exporteshowing to the court. TO do so the government must
Submit ?an affidavit of the Attorney General certifying that disclosure of
classi?ed information would cause identifiable damage to the national
Security 0f the United States and explaining the basis for the classification
of such information.? 1d. at? If the court decides that the
defendant?s right to access to the evidence. outweighs the government?s
national security interests, the government can choose to dismiss the
indictment rather than make a disclosure. United States v. Moussaoui, 382
F.3d 453, 466 n. 18, 474?76 (4th Cir. 2004). (U)

B. Use ofClPA in International Terrorism Prosecutions Alleged
to Involve Stellar Wind-Derived Information

. ?reviewed the CIPA pleadings files maintained in the National
Security Division relating to the Stellar Wind program. In almost every
instance, the. CIPA litigation was handled by the National Security Division-

 

 

 

the: in?olvement ofthe lingprosecutorsin the" US. Attorney?s: Offices
th theunderlying'zpijosecutiens  who Weren'ot read-intoThe SCOPE andnature of the defense motions initiating the 
litigation varied}. depending on the procedural posture of the case. For
 some-defense motioiis-?s?ought to compel discovery of N-SA
suiiVeillance information, while others. sought 'to suppress-all government
  the.a1ternativ,ei have the dismissed of;
memory thatillegal -
a .. Ii. m'r? hefirst itista?Ce

     

 

Regardless-of the varying procedural p0sture of the cases and the
sco'pejxahd {nature of the defense}motions, the governmentresponses we
:exatininediwere  uniform, consisting of a motion to delete items 'from.
ediS'Z'ooifrery', a legal .memorandumsin Support of the motion, declarations from

sonic

Officials, and a proposed ordera

 

 

The 1ggovernme'nt?s CIPA Submissions aeserted that the information at
issue ,inv?thie discovery litigation was classified and subj act to the national
Security priVi?lege as codified in CIPA. They en?erally d?escribedthe types-of

    

 

 

The-government?s. responses 'we reviewed uniformly stated that
the intelligence reports had not been or would not be.
evidence, and that therewas no-causal Connection between the
 in?the reports and any evidence. used or to housed at trial, or
 too attenuated from the evidence to be discoverable. The. government

area-edema: because the facts concerning the NS?A?srreportingWould-not
the-defense, the court need not explore the sourcesand methods need to
thefi-nforjmation?. 'I-?he submissions also argued that the information
 by the SA was not included. in the governmentis PISA application,
and therefore Was too attenuated from the trial evidence to ?Inerit?a' revi?ew?of
then-leans by'which the intelligenceinformation was gathered. The
"government asserted that the ?Causal connection? between discovery of the-
de-riivatiVeIeVideHCeand the alleged illegal search ?may have become so
taint.""495' It is important to note th .

      
        

 

   

b1,
b3,
l-qr-l'lggz-IL'VI-niGovernme-ntl?trgumen?s inSpeci?c Cases (U) . WE
section we describe ases that illustrate the arguments
made by the government-in CIP-A litigation with respect to defendant?s
requestsfor discOvery Stellar W~ind~deriVed .informatiOn. .
32several 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 NSA reporting played no role
in its acquisition of the evidence used or planned to be used against the defendant.



?13? Nardonev. United States, 308 US. 338, 341 (1939). The government also
argued in it's Submissions that suppressing its evidence. would not serve any deterrence
purposo. ?The government argued that the SA acquires, processes, and disseminates
intelligence not to produce criminal prosecutions, but to protect the national security. .It
assertedthat 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 security. WW

 

 

 

 

b1, b3, b7E 

 

 

 ANALYSIS (U?l
that the Department made little-effort to-miderstand and
comply with its discovery ebligations in connection with Stellar
 information for the?rrst :?seVeral- years of the. pregram. "The
Dsp?ar?hentls'limited initial effort was 8150- harnpere?d by the limited number
cfiattomeyszw?fho were-read into the program. Asa result, OLC attorney
Jaehn Ypo. alerie initially alialyZed the government?s discovery obligations in-
one early case, and he produced a legal analysis that was based on an
inserted understanding of- .the facts ofthe. case to which it applied. When
other attorneys?from - 
?ead into  r?o ram

    
    

  

    
 

 

','fthe Department eventually took 'steps
toadd'ress   ts discovery obligations. Hewever, in
ourvi'ew, it es ,prsere riot compl? and do not fully ensure that the
government has met its discovery obligations regarding infermation
 through the Stellar Wind program. 

 
 
 

As described in this chapter, in 2002 the Department ?rst recogniZed
that the Stellar Wind program could have implications for diSCovery
obligations in terrorism cases. OIPR Counsel Baker raised with Department

 

bl, b3, b6, b7C,
b7E

 

   

 

i? officials ?the Question of how the government would meet its
discovery? Obligations regarding Stellar Wind information. Despite

the Department took no action at this time to b1 b3 
ensure that itrwasg in compliance with Rule 16 or Brady with respect to b6, 
Stellar-Winduderived' information. We believe that-at this point senior b7?c

 
     
  

Department.offieials. were on. notice that, at a minimum, the?di-sc?ove 
merited-attention Howev? ncrete action Was taken until ear
intthef-Context-of when thefDepartment had to address

how  Stellar?Wind: information that was not also obtained Under

   

   

 

b1,
b3,
b6,
b7_cerror in Yoo?S legal anaily-sis'may have resulted in part from the failure to

 set his memorandum to typical OLC and Department review and
 Because other Department attorneys were not read into the

Stellarwindprogram, the risk that the Department would produce a b1, b3,
factually ?awed andinadequate legal analysis of these important discovery b6,
issues was escalated. As we concluded in Chapters Three and Four, we b7C,
believe the lack of sufficient legal resources at the Department during this b7E

early phase of the Stellar Wind program hampered its legal anal sis 
important issues related to the program. We believe that Yoo?t  
memorandum is one more manifestation of this problem.

In: July 2004,, Patrick Rowan, a senior counsel in the Criminal
Division; Was read into the program and conducted a more systemic

- r. .L
*1 

  

    

358
row semi; [tree [at ll mammal itinerant?

 

  
   

 
 

 smemerandu?m, RoWan Initiated a 1equest that the is be further

  

 

  
  

'1 . other than "in informal discussions with Rowan Concerning



?Yo'ois memorandum, OLC did not further examine these issues or b1,
folalow?upen-Rowan?s recommendation. While we recognize that. OLC was b3,
net responsible for developing litigative strategy on this issue, We believe b6,
that.  or another appropriate Department compenent should have. b7ci

providedzguidancem this important legal issue; b7E

 

We recommend that the Depa?  
assessment eithe importa 
that. Still! remain unresolv the legal
 of a plea on?thei'governments disclosure obligatiOns
under Rule. 16 -and_'in. particmar Brady. We believe the: Department. should
careful;lyi=eensider Whether it must reexamine past. cases to See Whether
but undisclosed Rule 16 or- Brad'y material was
reolleeted "the NSA, and. take appropriate stepSrto ensure that it has
complied With- its discovery obligations in such cases, 

     
 
  
 

    

       

HeWeVer; "the Departments handling, of these motions did not re we the

Department to?ider'iti?r 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 eases, 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.
(Tspp}

 

 

 

 

 

 

 

 

 

 EEGHT
 STATEMENTS THE SURVEIELLANCE
PROGRAM. '(Ul

This chapter examinesAttorney General Alberto Gotmales?s'testimc?njy
andspublicstatements related to the-Stellar Wind program. Aspects of this
program were first disclosed publicly ina series of" articles in The New. York
Time?sin'December 2005. In reaponse, the President publicly Con?rmeda
portionofthe Stellar Wind program interceptiOn of the COntent Of
international communications of. peeple reasonably believed to have links to.
alQaeda 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 between those two hearings, former Deputy Attemey General
James-Conley testified before-the "Senate Judiciary" Committee about the
dispute between the Department and the White House concerning the
program. Gonzale?ss  Corney?s differing congreSSiOnal testimony led to
allegations that Gonzales had made misleading statements to Congress
about the-dispute and the program itself.'43'4 (U)

 this chapter, we examine Whether Attorney General Gonzales made:
false, inaccurate, or misleading statements related to the Stellar Wind
program. 

1. Summary of-the Dispute. absut 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,
referred to as ?baSkets.? BaSket 1 related to the collection of
email and telephone content. Initially, the Stellar Wind program. collected
email 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 communicants 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 suggesredto
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 BIG, dated
August 16, 2007, asking the-01G. to review Gonzales?s statements to determine whether
they Were-intentionally false, misleading, or inappropriate. Gonzales testified several times
before, the S.enate and House Judiciary and Intelligence Committees about the. program, In
this chapter, we focus on his February 2006 and July 2007 testimony in which he
discussed the events of March 2004; (U)

 



 

asket 2 involved bulk Collection. of telephony meta data,  basket 
of email meta?data-l  . i 

 

'T-he?Se collection-swam. authorized by a Presidential Authdrization that
Was, rewisjsued; atapproxirn-ately 30' to 45?day intervals. Each Au?iorization
was certi?ed. as to form and legality by the Attorney General. The Attorney
Generals were V-iniitia?y supported by Is gal opiriiOns from. 010
attorney ohn ?Y'oo affirming the legality of the program.
?1 mp) 

As discussed in Chapter 'Four,..after Jack Goldsmith was con?rmed as
Assistant Attorney General for OLE in r'OGtober 2003; he, alone with
Assodate Deputy Attorney General Patrick Philbin, conducted. an analysis "of
 legal basis-underlying eachhasket in the Stellar Wind pregram. As 
 (if this review, he, Philbin,'and recently Confirmed:DeputyAttorney'

   
   

 

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 Comey, who assumed
the duties of the Attorney General when Attorney General Ashcroft was
hospitalized, informed the White House thatthe. Department could not
reCert-ify the program. This dispute culminated in the unsuccessful attempt
bythemWhite House, Counsel Gonzales and White House Chief of Staff
Andrew Card to get Attorney General Ashcroft to overrule Comey and
reCert'ify the program while he was in the hospital. When Ashcroft refused
to. certify the program and said that Comey was acting as the Attorney
General, not him, the President reauthorized the program without the

 

 

     

 

Attorney General?s certification. instead Gonzales, as White- Hous'e Counsel,
recerfti?ed. the program.    

After-theWhite?HOu?se?s aetions to continue the program withoth
Justice Department'-ce-rtification, Deputy AttOrney?General Conley, FBI
Director ?Miae'lier?and many other senior ?Department:officials, considered
we v.  Presidentilearnedaof this he dime-ted the 

   
  

IE.  New Articles and President Bush?s CO'n?rmat'iOn
Regarding NSA Activities 

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.
HoWever, after-a series "of meetingswith Administration of?cials who argued
that publicatiOn o?fithe story would harm the national security, The New.
YO'rleaimes 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 concerns about the legality of the program
that. had ?reached the highest levels of the Bush Administration.?435 (U)

The first article, on December 16, 2005, was entitled, ?Bush Lets US.
Spy on Callers Without Courts.? This article stated that ?Months after the
Sept. 11 attacks, President Bush secretly authorized the National Security
Agency to eavesdrop on Americans and others inside the United States to
search for evidence of terrorist activity without the court?approved warrants
ordinarily required for domestic spying, according to government officials.?
The article deserih'ed in broad terms the content collection aspect of the NSA
program (basket stating that according to of?cials the NSA has
?monitored the international telephone calls of hundreds, perhaps

 

435 See Eric Bush?s Law (2008), p. 203. (U)

 

 

thousands, offpeople inside the United States without warrants over the
- 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 d?Omestijc 

The article asserted that ?reservations about. aspects of the program?
had alsoi'been-eicpressecl by Senator Jay Rockefeller (the Vice Chair Of the
Senate Select, Committee on Intelligence) and a judge who presided over the
FI?SAiCourt. The article added, ?Some of the questiOns about the 
new powers led the administration to temporarily suspend the operation last
yeari?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.?
H'QWevier, the article incorrectly tied this suspension of the pregram to Judge
Colleen I{ellar?KoteUy?s concerns that information gained from the program
was also :being used to seek FISA orders, rather than to the March 2004'
 betWeen Department officials and the White HOuse about the
legality of'raspects of the program. 

On December 17, 20.05, the dayafter The New York Times published
theaf-i-rst article, President Bush publicly acknowledged the portion of the
NSA program that'Was described in- the article. President Bush deacrib?ed 
bread terms these electronic surveillance activities, stating;

In. the weeks following the terrorist attacks on our nation, I
authorized the. National Security Agency, consistent with U.S.
law and the Censtitution, to intercept the international
'commUniCatiOn-s of. people with known links to al 'Qaeda and
related terrorist organizations. Before we intercept these
communications, the government must have information that
establishes a clear link to these terrorist networks.

This is a highly classified 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 activities I authorized are reviewed approximately every 45
days. Each review is based on a fresh intelligence assessment of
terrorist threats to the continuity of our government and the

 

 

 

 

threat of Catastrophic damage to During each.
aesessment, previous :?activ'ities under the authorization'are
reviewed. The. review includes approval by our nation?s top legal
offioials, ineluding the: AttOrney General and the counsel tothe
President. I have reauthorized the program more than '30 times
since the September ?1 1th attacks, and I intend to do sc-for vas-
longgas our nation faces a continuing threat from al Qaeda and
related (U)

TEL Other Administration. Statements (U)

On January 19, 2006, the: Justice Department issued a doCtlment,
informally referred to as a ?White Paper,? entitled ?Legal Authorities
Activities of the National Security?Ag'ency Described by the
President? The 42.~page document addressed in an unclassified form the.
legal basis-for the collection. activities that in the
December, 16", 2005,, New York Times article and other media reports and
confirmed-by President Bush. The White Paper stated that the President
asknOWledged that ?he hasauthoriz'ed the NSA to, intercept inter-natiOnal
communicatiOns into and out of the United States of persons linked to al
Qaed?a cr. ?Other'rela-t'ed 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 militaryr force, pursuant to the
President?s Article .11 Commander?in?Chi?ef powers. The White Paper also
argued that the activities were consistent with as confirmed and

supplemented by the AUMF. 

On January 22, 2006, the White House also issued a press release
and memorandum to counter criticism of the NSA 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 NSA program or aspects of the

_program.437 

 

?36 The full text of President Bush?s December 17, 2005, radio address can be found
at lQ/print/ZOOS 1217.htm1. (U)

?137 See We-
found that the term was used in the media prior to this time.- The first published reference


 

 

A on J'anuaiy 23, 2006, President Bush referred to
the ?terrorist surveillance. program? during :a speech at Kansas State
University:

Let-me talk. about one other program. . . .. something that you?ve
been reading; about in the news lately. It?s What I would call a
terrorist surveillance--piiogram. (H)

In thez?s'p?eech, President Bush described the program as the inteirception'?of
oertaii-n communications "emanating between somebody inside the United
States?and outside the United States; and one of the numbers would be
reasonably suspected to bean al Qaeda link or affiliate.? (U)

011 January 24,: 2006, Attorney General Gonzales delivered a speech
at the G?eOrge-toWn University Lav?T Center which, according to his prepared
remarks, began. by stating that his remarks?s_peak only to those activities
con?rmedypublicly by the President, and not to purported activities
described in press reports.? Gonzales referred to the program thronghout
his, SpeeChv asieith-e?r the ?terrOr-ist surveillance program? Or ?the 
terrorist surveillance program.? (U)

11V. 'Jl?e'stimonyand Other Statements (U)

After. the-New York Times a?rticlescliSclosed aspects of the SA
program, members of Congress expressed concern that the President had
eXceeded his authority by'rauthorizing electronic surveillanCe activity
without FISA orders and congressional hearings were held on the issue.
Gonzales 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 Corney before the Senate Judiciary Committee on May 15, 2007.



 

we foUnd to the ?terrorist surveillance program? in connection with the NSA electronic
surveillance activities was in NewsMax, an online news website, on December 22, 2005. (U)
See ?Barbara Boxer: Bush Spy Hearings Before Alito," Ne'wsMaxcom, December 22, 200.5,
12/22/173255.shtm1. On January 20,
2006, the term. appeared again on another- Internet blog. called ?RedState.? See ?Making the"
case for the NSA terronst surveiilance program,? at
[0977. (U)

 

 

 

 Geneale?s?s February 6-, 2006, Senate Judiciary Committee
Tastimonr (U)

Inhis? opening statement before the Senate Judiciary Committee on
February 16,, 2,006,, Gonzales began by saying that his testimony would
necessarily be limited:

Before going any fu?rtherJ-shOuld make clear What I can
disctisS today. 1am- here to explain the Department's
asgeSSment that the President's terrorist surveillance program
is consistent with our laws and'ConstitutiOn. I am- not here to:
discuss 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 thosefacts the
President has publicly confirmed nothing more. Many
operational details of our intelligence activities remain classified
 unknown to our enemy and it is vital that. they. remain so.


Thea-questioning; of Gonzales at this hearing focused primarily on. the
nature of the. surveillance. activity and the legal basis for it.?i33 SenatOr
Charles SC-humer asked? Gonzales specifically about accounts of a

diSagreern'ent With-in the Justice Department over the NBA program:.

 SCI-IUMER: But it?s not just Republican senators who
seriouslly?question the NSA program, but very high?ranking
officials within the administration itself. Now, you?ve already
.acknoWledged that! there 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 1 indicated,
this program implicates very difficult issues. The war on terror
has generated several issues that are very, very complicated.

SEN. Understood.

 

ATTY GEN. GONZALES: Lawyers disagree.

 

4-33 Neither the Chairman of the Senate Judiciary Committee at the time (Senator
Specmt), nor the Ranking Member (Senator Leahy), Were read into the program or provided
the under-lying 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 about the program, but that these materials had not
been. previd?ed to the Committee. (U)

 

 

SEN. [concede all those points. Let me ask you
'ab'oiit some.specific-reperts. It?s-iibeen reported by multiple
neW'S'Qu-tlets; that the former number two man, in the usti'ee-
Depar-thnt, the" premier-"terrorism prosecutor, Jim Cemey,
"expressed gram reservations-about? the NSA program? and at
least once refused to give it his bie'Ssing. Is that true?

 GEN. --GON-ZALES: senator, here?s a response that I feel
that I can give with?respee-tto- recent. speculation or stories
about disagreements. There has not been any Serious
disagreement, inc-ludin?gmand lithink this is accurate there?s.
notbeen any serious disagreement about the program that "the
President has confirmed.

 

There. have been disagreement-s about other matters regarding
operations, which I cannot get into. .I will also say 

SEN. SCHUMER: But- there was some - I?m sorry to cut you off;
Buti_'there Was sOme' dissent with-in the administration, and Jim
Co'mey- "did express- at some point that?s all Ii?asked you some
reservation.

 GEN . GONZALES: The,point I want to make is that, to my
knowledge, none of dealt with the program that
we?re talking; about today. They dealt with operational
Capabilities that we?re not talking. about today,

 SCHUMER: I want. to ask?you again about -- I?m just we
have limited time.

Yes, sir.

  It?s also been reported that the head of the
Of?ce of?Leg'a'l 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, 1 think we?re this is 

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.

SCI-IUMER: But you are telling us that none of these

people expressed any reservations about the ultimate program.
'Is that right?

 

368
artery 'il are; l! Haggai}! eggm

 

 GEN, GONZALES: 'Senator,.l want to. be very. careful here,
because, of course, Il?m here only testifying aboutwhat? the
Ere-sident has. confirmed. And With respect to what the
Pre'Si?den?t has confirmed, believe.w I do not. believe that these
officials that you?re identifying had concerns about this
.program.? (U)

Throughclut the hearing, other? Senators asked Genzal'es questions
relating to of the NSA "program, and GonZales would often:
qualify his answers by stating that he was not discussing activities beyond
What the President had confirmed. 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
Lejahy, for eXample, Gonzales suggested that therelectr'onic surveillance
activities the President had publicly confirmed were the. only activities. the
President had authorized to beconduoted. Specifically, in response to a
series of questions from Senator ?Leahy regarding what activities beyond
warrant-lesselectronic surveillance Gonzales would deem legal under the
Authorization for the Use of Military Force, Gonzales stated,

Sir, Ill-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 I?m not going to get into a discussion,
Senator, about 'hypo'thetiCals.439 

 

?39 On. February 28, 2006, Gonzales wrote to Senator Specter to provide additional
respOIiSes. to questions that he had answered during his February 6 hearing and to clarify
Certain responses. Gonzales Wrotethat he con?ned his letter and testimony

to the specific NSA activities that have been publicly con?rmed by the
President. Those activities involve the interception. by the NSA of the
contents of communications "in which one party is outside the United States
where there are reasonable grounds to believe that at least one party to the
communication is a member or agent of al Qaeda or an af?liated terrorist
organization (hereinafter, the ?Terrorist Surveillance Program?).

One response Gonzales 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 with limited exceptions only the legal underpinnings-
of the TerroriSt Surveillance Program, as defined above. 1 did not and could
not address operational aspects of the Program or any other classified
intelligence activities. So, for example, when I testi?ed in response to
qties?tions- from Senator Leahy, ?Sir, I have tried tooutline for you and the
Committee what the President has authorized, and that is all that he has
authorized,? Tr. at 53, I Was confining my remarks to the Terrorist

[Cont?d.)

 

 

inresponse to Senator Saanrotvneback?s. question about: whether the
ELSA-application process Vitou?ld in-Clu?de. ?even thesesOrt of operations we?re
readabout: data mining operations? Would that-include those sorts; of
operations, or-are' those totally a-separate-type of field?? (U)

Geneales 

.I?m not here to talk about that, Again, let me justcaution
_.eveij_zoneithat youneed to read these stories with caution.
'Thejrevis-alot of. mumbling mean, mi'Xing and man-gling of
activitieslthat are totallyunrelated to what the President has
authorized under the terrorist ?surVeil'lance program, and so I?m
uncomfortable talking about other kinds of Operations that
might ??'that are unrelated to the terrorist surveillance program.


Comey?s May 15, 2500?, Senate Judiciary Committee
Testimony 

Former-Deputy Attorney General Comey appeared before the Senate
 Committee on May '15, 2007, in a hearing Called to examine
Whether the Department had politicized the firing o'f'US. Attorneys.
senator-Schumen who presided over the healing, began the. questioningby
askingi'Coimey about reports. injthe media. that in. March 2004 White House.
counsel G0nZa1e8-'and- White House Chief of Staff Gard had visited Attorney
General Ashcroft in the .hospital?in an effort to override Comey?sdec?ision,
made "when he served as General, not to certify a classified
program; Comey?wasasked to recount the details of the incident. (U)

After prefaeing his remarks by stating that he could not discuss
classified informatiOn, Comey described the. events of March 2004., ineluding
theconfrontation betWeen the Department and White House officials in
.Ashcroftishospital room. in describing these events, Conley referred to a
single classified 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
classified program. 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 attempted to clarify a response he had given to Senator Leahy about
When the first Presidemial AuthOrization was signed. Gonzales wrote that ?The President
first authorized the [Terrorist Surveillance} Program in DetOber 2001 . . . (.U)

 

 

 

ee-rti'fyri'ngivto its, legality. And the and I remember the precise
had to be-re'neWed by March the 11th, which
wasa Thursday, And We-were engaged in a very
intensive reeValuation- of the matter. (U)

{Comeyalso testified that ?as Acting Attorney General, I would net I
certify ?thegpro?grampas to it's legality,_sand explained our reaSoning' in. 
 I  not gointohere, nor aml confirming it?s any particular
program-3? Asidetailedsin Chapter Four, Comey .then?xdescried from. his
perspective;- the. incident in the .hospital room and testified that after that
incident ?[t]he program was-areauthOr-ized without us, without a. signature
from the Department of Justice .attesting'as to its legality . . .r (U) 

 Gonzales?s June 5, 2007, Press Conference (H)

In light of Cemey?s statements, questiOnswereraised about. the
accuracy of G'onzales?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? M8413,
the ?rst question a-reporter asked Gonzales cOn-cerned Comey-?s teatimony:

REPORTER: Attovriey General, last month irn Comey testified
about vii-Sits, you and Andy Card made 'to John Ashcrofth
hospital bed. Can: you tell us your side of the story? Why were
yOuzthereran'd did Mr. Co'mey testify truthfully about it? Did he
remember it correctly?

  GONZALES: Mr. Comey-?s testimony related to a
highly classified program which the President confirmed to the:
American people some time ago. Because it?s on a classified
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 confirmed. (U)

D. Gonzales?s July 24-, 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 be askedat the hearing;440 The letter referenced Gonzales?s

 

440 According to the letter, Senator Leahy took this step because in Gonzales?s
appearance before-the Senate Judiciary Committee on April 19, 2007, to discuss the
remOVal of nine U.S. Attorneys, Gonzales had responded to an estimated 100 questions that

(Cont?d.)

 

 

TP sisenie'rjjse - t: 

 

HipE??hI?u?agl-?y 23006, testimony in which he. stath that Department officials.
did-?Znethia-Ve ?concerns. about this. program? The letter also referenced
May- ?15 testimony incident in Ashcroft?s hospital, 7
room in March 20.04. ?The letter specifically advised, Gonzales thathe v?v?Ould
 aSk?ede to ?provide a full. explanation for the legal authorization for the:
President?s warrantles-s electronic surveillance program in March and April
23004:?? (U3)

 July'Q-ii hearing, Gonzales was 'I?epe?atedly questioned about
allegedinconsistencies between his and Cemey?s- accounts of the events tot
'M'arc'h 200.4. and the NSA r-progriam.? For example, SEnaitor Specter asked:

Let me Ineve 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
,?ab?out. the program.? Mr. Coriney?s testimony Was that Mr.
Gonzales 'began'to. discuss were there to seekrapproval
rand?'heithe?n Says, qtlote, Was very upset. I was angry. .I
thought} had just ?witnessedan effort to take advantage of .a
very Sink man.?

Fir-st ofin'al'l, Mr, Attorney -'Gene_ra_l, what credibility is left for you
When you say there?s no disagreement and-you?re party to going.
to thefhospital to see Attorney General Ashcroft under sedation
to  to get. him to approve the program?

 GEN. GONZALES: The disagreement that occurred and
thereasOn fer the visit to the hospital, Senator, was about?other
intelligence activities. It was not about the terrorist surveillance
program that the President announced to the-American people}
(U)

At etherpoints 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 conference in which he stated that Comey?s testimony ?related
to a highly classified program which the President confirmed to the
American people some time ago.? Gonzales first 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 fact" here in the press

 

he ?not recall." Leahy wrote that he wanted to assist Gonzales with his preparation
for" the July 24 testimony to ?avoid a repeat of that performance.? (U)

 

 

 

 

Se'oriferenceiw Idicl mi?s?sjp?eak, but also went back; and Clarified it with the
(3U).

- Gonzales then respondedto Senator'S'chumer that ?The President
Confirmed the existence ofone set of activities,? Comeyn'as.
about a disagreement. that. existed with respect to other intelligence-
:aetiyities. .: 'Comey?stestimonyabOut the: hospital Visit Was-about.

either intelligence actii?tiesj, disagreements-over other intelligence activities.
- That?s 'hoW1We7d .Cl'afify it" (U)

I Other Senators-questione Gonzales?si'respons?es on this issue. For
example, Senator Feingo?ld 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 n?ot?been 
serious disagreement about the program that the? President has
con?rmed .unquote, th-ata-ny disagreement that, did occur,
quote, ?did not deal with the'program that I am here testifying
about today,? unquote, and- that, quote, ?The. disagreement that
nineted doiesu?not relate to the program the President confirmed
in December to the American people,? unquote. (U)

Two. months ago, you? sent a letter to me and other members of
 .eomrnittee defending that testimony and asserting that it.
remains aeeurate?. And I believe you said that again. today.
Now, as you probably know, I?m amember 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 matters at issue here. Andi
believe that your testimony was misleading, at best. I am
prevented from elaborating in this setting, but I intend to send
you a classified letter explaining Why I haVe wine 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
Feingold was saying, because I?m also a member of both
committees. And. I have to tell you, I have the exact same

 

I 7 Gonzales also testified that he did not speak directly to the reporter (Dan Eggen,
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)

 

 

perCeption thathe does, and that is that if'ther?e is a kernel of 
truth in-what you?ve: said about the program which we. can?t
discuss. but weknowlxit to bathe program. at; issue in-your?
hospital visit to the Attorney General, the path to that kernel of
truth is so eonvoluted and is 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 tollead us or
mislead us away from the dispute that the Deputy Attorney
General subsequently brought'to our attentionhe?s- be?haifin?g, you know, in a crazy way to. even think this,
bUtxat least count tWo loft-1s and takeit seriously??- (U)

Gonzales also- offered to answer .a question about the terrorist

surveillaneeprograrn in closed session. during this ex?chang'e with SenatOr
specter;

.  Going back to the question about your
ere'dibilityon whether there was dissent within the
,adrniniStration as tojthe terrorist surveillance program, was
there any?diiStinCt-ion between- the terrorist surveillance program
in existenCe on March ?10th, When you and the Chief of Staff
Went to see Attorney General Ashcroft, contrasted with the
terleriS'tSurveillanCe program Which President Bush made-
public in December 

  Senator, this is .aque?stion thatI
shouldxanswer in aelassified frankly, because
now you?re.zaski?g to- hint or: talk to hint about our
Operational activities. And I?d. be happy to answer that
question, but in a setting.

 SPECTER: Well, if you won?t answer. that question, my
.suggesti?On to you, Attorney General Gonzales, is that you
review. this transcript very, very carefully. 1 do not .find your
testimony credible, candidly. When I look at the issue of
credibility, it is my judgment that when Mr. Corney was
testifying he was talking about the terrorist surveillance
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?s hospital, room. . . . So
my suggestion to you is that you review your testimony very
carefully. The chairman?s already said that the committee?s

 

 

 

Accordingto 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)

 

 

 

 

I going torevi'ew your testimony, very Carefully to see if your
credibility has been breached to the. point of being actionable.
(U)

Nearthe end of the hearing Senator Schumer questioned Gonzales
regarding the meeting at the. White House with the ?Gang of Eight?-
?eongre-SSional leaders, jQuStfbefore Gonzales and Card went ?to Ashcroft?s
hospital room on March 10?, 2004;

SEN.  OK. But you testified to ?us that you didn?t.
?belie?Ve- there-was serieus diSseri?t-on the pregratn that the
?Presid'entauthorized. And now you?re saying they knew ofthe-
dissent and you didn?t?

GEN. GONZALES: The dissent related to other
intelligence activities. The diesen-t- was not about the terrorist
Surveillance program the President confirmed and . - .

 

You said, sir - sir, you said that they knew
that there was dissent. But when; you testified before us, you
has not been  serious d?iSagreement. And: it?s
about the same program. Itis about the same exact program.
You said the President authorized. only one before. And the.
diiscussiOn ?.you see, it defies-:credulity to believe that the
disouSsion with Attorney General Ashcroft or with this grdup of
eight; Whioh we can check on - and I hope. we-will, Mr. 
Chairman: that Will?bejyours and Senator 'Spe?cter?s prerogative
-- was about nothing other than the TSP. And if it was about
the TSP, you?re dissembling to this committee. Now was it
about the TSP or not, the discussion on the eighth?

ATTY GEN. GONZALES: The disagreement on the 10th was
about other intelligence. activities.
SEN. SCHUMER: Not about the TSP, yes or no?J

ATTY GEN. GONZALES: The disagreement and the reason we
had to go to the hospital had to do with other intelligence
activities.

SEN. SCHUMER: Not the Come on. If you say it?s about
?other,? that implies not. Now say it or not.

ATP-Y GEN. GONZALES: It was not. It Was about other
intelligence activities.

SEN. SCI-IUMER: Was it about the Yes or no, please?
That?s vital to whether you?re telling the truth to this committee.

 

 

 

- I   It Was about:otherintelligence
aetitritiea (U)

 we interstiewed Gonzales, he stated that "there Was-neVer any
 toils-tide the NSA program from Congress, and he ,said- 
Waggbnefedson multiple occasions about the Gonzales also
. 7? 1? 
 Consetned

   
      
    

 

  

   
   

GO?Zales said that.he?c.o1.?d
not fecal Where/the term terrorist program? originated, but
 he  the.  it. referred only to the content collection
.aeti?ities' the President had confirmed publicly, and that the .rest of the
remained classified. Gonzales also asserted that this distinction
should have been clear to those on the committee who were read into the.
Stellar Wind program.- - 

   

ERIE Director Muslim?s July 26, 2007', HouserCemtnittee on.
the Judiciary- Testimony (U)

Two clays'after GOnzales-?s July 24, 2007, Senate uidi'c-ia-Iy committee
testimony; Director-Mueller testified before the House-Judiciary
Q'o'rnmi?ttee?. At this hearing, Mueller ?was asked- about his conversationwith
Attorney General Ashcroft at the hospital on the evening of March 10,752,004.
As di?seus?sed'in Chapter F'Ou-r of this report, Mueller arrived at the hospital
just after Gonzalesand. Card left. Mueller was asked to recount what he.
learned from Ashcroft concerning Ashcroft?s exchange with Gonzales and
Card: earlier that evening:

 LEE: Could I. just say, did you haVe. an
understanding- that the dii8cussion was. on 

MR. MUELLER: I had an understanding the discussion was on
is. 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 Department's legal concerns about aspects of
the program and the need for a legislative We also reviewed Gonzalesh 
testimOny before the House Permanent Select Committee on Intelligence which he
provided on July 119, 2007, just a few days before his July 24 Senate. Judiciaiy Cemmittee
teatimeny, In his classified testimony, Gonzales stated ?This disareement 1 with
Justiee?ijepartment officials] primarily centered 

   
 

 

 

 

 

 

MUELLER: I-- the: discussion was on a national man NSA
program that. has; been mush discussed, yes, (U)

Werasked understanding of the 'terr'rr ?terij-?erist
Surveillance- pragram,? Mneller the term was notused by.
the  prior-to: The New Yet-l4; Times article and?the President?s confirmation
sf the-program.- Mueller said he Understood the term tosrefer
tewhat thegPreis?ident publicly-confirmed as;-to content intercepts, Mueller
Saidfl?te believedthe term.?TSP??wasapart: of the ?overarching?r?StellarWindi

programrbutvthat is not l'  

   

F. Gonzales?s- Follawaupi?Lette?r to the: Senate Judiciary
Cemmittee 

In  effert to clarify his Senate testimony, oh
August 1, sent unclassi?ed letters?to-JudiCiary Committee
Chairman,gLe_ahy Senator Specter. ",Gonzales?s letter to Leahy stated that
withsugge?sti?ons that his testimony was 
 he Was-determined to address any such impression. He
9/ 1.1, the President 'authorized?the? 
undertakes-a number of highly c'lasSi?ed activities,? and that, ?although the
 base'sx?fortheSe actiVi't'ies'varied,  of them were authorized "in orig.
presidential order-,1. Which*was reauthorizeclvapproximatein ever-y 45 days?
GonzdeerI-?ote that before December 2005 ?the term: Terrori'St Suweillance
Programmes, riot used to,? refer to these activities, collectively or Otherwise. 
Rather?- Gonzales write that the term was first used in early 20065 ?as-part of
?the. public. debate. that followed the. unauthorized disclosure [by theNew'
York Times]  the President?s acknoizvledgement of ?one aspect of the NSA
(ill)

 

444 We also interviewed an NSA of?cial who serv?sas an original as 

    

 

 

 

?Gonzales also wrote in this letter that in his July 24 testimony he was
discussing "only that:rparticu1ar aspect of the NSA -?acti_vities that the
Pres'ident .h'asipublicly acknowledged, and that we have called the Terrorist
He wrote that herreco'gnized that his use of this
  shorthand. 1*efer-ence to the ??program? publicly ?described by the

"Pi?e?Si?dent?? may'have a?Create'd confusion.? Gonzales maintained that there
.wasii?het a serious, disagreement bet-Ween the Department and the White
'l-IouseyinTMal?r-Ch 2004 aboutwhether there was a legal basis: for the
particular-acting later called. the Terrorist Surveillance Program."  -

Gonzales also Wrote in his letter, ?That is not'to say that the legal
issues raisedb'y the Terrorist Surveillance Program were insubstantial; it
Was-an extraordinary 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-aetivities, Mr. Comey and the Office of Legal Counsel ultimately agreed
that, the. President cbulcldirect the NSA to intercept international
communications without a court order where the interceptions were
targeted-at al?QaedaQr its affiliates. Other aspects of the activities.
referenced-in the letter [attached to GonZales?s letter] did precipitate
very serious disagreement.? (U)

y. me 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 bel?Ow, we concluded that. Gonzales?s testimol'ly
did not-Constitute a false statement under the. criminal statutes. We also
cronclude'dthat he did not intend his testimony to be inaccurate, false, 01?
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 between the White House and the
Department while not disclosing additional details about classified activities,
particularly because only certain NSA activities had been publicly con?rmed
by the President. (U)

However, some of this difficulty 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 program hindered the-

 

 

 

Department?s ability 'toiadequate?ly ifulfillits legal responsibilities concerning-
 :pregram-through  2004. i?S-imi-larlyj, the White House?s decision
hat: to allow at least the' Qhair: and Ranking Members of the House and
Senate'JUdiCiary Committees to be- briefed into the program created
difficulties for G?lonzaIBS-when. he testified, before? Congress about the:
diSputes program. This limitation also affected the

.  ability to understand or adequate-lyasseSS?the program,
?espcciallyin connection- With the March 2004 dispute. We agree with
Goldsmithis- cb?se'ryation about the harm? i'n-th'e' White Heusef's ?over~?secreCy?
fetithiis programs as Welles-Director Mus?er?s suggestion, made in March
2'004, "that'b?riefings. on the-program should have been, given to the House
and Senate Judiciary'Comrnittees. This did-?notbccur, and it made

Genzales?s testimony to the Senate Judiciary Committee unusuaily difficult.

 I a

 

Yet, even, given these difficulties, We belieVe that Gonzales?s testimony
Was imprecise, confusing, arid-likelyto lead these not read into the prong
Conclusionsabout the nature of the dispute between. White
Department officials-in March 2004.. Inaddition,twoSenators-
Wha had. been readsinto theiprograrn stated-that they were Confused by"
Gonzales?s. testimony. .A-ltheiugh. we. echeluded that Gonzales did: not intend-
te-mislead Congressrhis testimony nonetheless "had the effect of creating
can-fusion and inaccurate perceptions about certain isSues centered during:
his hearings. (2U) 

Gonzale.s,gasra participant in the March 2-004 dispute between the
White House and the Justice Department and, more importantly,- as-the
nations chief law enforcement. Officer", had a duty to balance his Obligation
net to diaclose classified information ?Withthe need not to be misleading in
his testimony about?- t'he 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 Congress and
the public about these matters. We were especially troubled by Gonzales?s
testimony at the July 2007 Senate hearing because it related to an
important matter of significant public interest and because he had suf?cient
time to prepare for this hearing and the questions he knew he would be
asked. (U)

At the outset of his testimony on February 6, 2006, Gonzales
explained that he was confining his remarks to the program. and the facts
that the President publicly confirmed in his radio address on December 17,
2005. In those remarks, the President had, in essence, confirmed the

 

 

content. cellectionlpart, or basket 1, of the NSA surveillance pregram?ts- 
  and Gonzales, uSed the term ?terrorist surveillant?e program?
"1.1-1 Connecti?oiiWith the Presidents confirmation of these SA activities.
However}, askdis'Cussed it was not clear -. even. to those read into the
program we. Vir'he'th?er the term ?terrs'rist' surveillance program? referred only to
content collection (basket 11) or the entire program.

 

Nevertheless, Gonzales suggested in his testimony that the dispute
between ?the'W?hite House andthe. Department concerned other. intelligence
unrelated to the contentcollection pertiOn. of. the
program that the President had confirmed. This was not accurate. 

We :recegnize- that the term "terrorist. surveillance program? was
.intendedi?fby Gonzales-and other Administration. officials to describe a limited
activities Within the Stellar Wind program and that the term was
created only in response to. public .diSCIOSures about the program. HoweVer,
by using-phrasessuch- as the ?terrorist surveillance: program? or ?the
program that the. President. has confirmed,? and. setting: that. program
actiVities',? Gonz?ales?s testimony
created apercept-ion that the two sets of aCtiVitie-s were entirely" unrelated,
Which. Was not accurate. testimony suggested that the dispute
thatciComey testified about Was. not related to the program that the President
had-confirmed, and instead" that thedispute Concerned unrelated
or ?intelligenm activities.? Thus, while Gonzales may have
intended the term ?terrorist surveillance program? to cover only-content

   

   
   
 
  

testified that. disput
 to? ?111716  iuribu aux. U5 -

 

Gonzales rein-forced this m-isperception 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 for 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 wasproblematic. In a February 28, 2006, letter
to Senators Specter and Leahy, Gonzales sought to clarify his response,

 

 

 

    

 

Stating, Was con?ning my remarks to the Terrorist Surveillance Program

as  by the'Presid?ent, the legality of which was the subject ofth'e
6th 1hearincr.? However,? in. our View this attempt to clarify his
remarks}  not go nearly far .As- discussed below; it was not until
after Gonzalesffs neat appearance before? thel?Senate JudiCialy Committee in
July-2007 ,athat Gonzales acknowledgedrthat. the President had also

authorizedya range of 
described under the Iterrorist'surve?illance program, in a single order.

We. concluded that Gonzales created a ?misimpressi?on for Congress
and the public-by Suggesting that the Marc112004 dispute between. the
Department and the White House concerned issues Wholly unrelated to ?the
program the Pre'sidcnt con?rmed,? or the terrorist surveillance program. We
believe: a fairer and more accurate ch-aracterizatiOn would have been that
the March: 2004 dispute concerned aspects of alarger program ofwhich the.
tejrmrist surveillance program. was apart. As discussed earlier, the NSA
Viei?fedtthe three types. of collections as a single- ?prograrn. The three types of
collectiOIis?Were all-authOIi-?zed by. the same Presidential orderand 
ad??niSt?e-redi lay-a single intelligence agency. MoreoVer, all three Collections
WetEka'OWIl inr'the Intelligence Community by the same Top
,e?oret/?Sensitive Information program cover term, Stellar

Wind- 

 

 

?When Senator Schumer asked Gonzales at the February 2006 Senate-
he?arin'gwhether media accounts that Come-y ?expressed grave reservations-
about: the 1N SAprogram?? were true, Gonzales responded that there was no
 is:

?4-5 $953-
 E:  ma 

 

.t 

 

  

.Whe?nwe interviewed Gonzales, he told us that he was-trying ?to be
 public; testimony about discussing or characterizing a
 tog-ramgwith persons not read into the program, and that he?lLISe'd

i I distinguish the disagreement regarding
from other disagreements regarding the i
program Gonzales told Usthat he believed his statement that there was;
disagreementpoint of ?serious disagreement? between
the-Justice and the White l-Iou~ mpared?
tojzthe. more s'erious disagreement related to. 445
Gonzales-also: OIG 7 to Ashcroit?s
hosljital mom. solely over and other evidence
seediin __apter Four tends to eenfirm tha
was not. the critical issue in the confrontatlon With
- rals at thehnepital art-hat it precipitated the threat of- mags.
nsi by senior Department and FBI officials.

 
 
  
  

  
  

     
 

   
   
  
 
 

  

 

Yet, even if one agrees th*
was not a7?serious. disagreement? betWeen the Department and the White
301136; Genzales?s testimony is still problematic. When Senator Schumer
pressed Geneales on whether Department officials ?expressed any
reservations. about the ultimate program,? Gonzales replied: ?Senator, I
wanteto becvelfiy careful here, because, of course, I?m here only testifying
about What. the. President has confirmed. And with respect to what the
Freeident has confirmed, I believe I do not believe that these DOJ officials
thatyou?re identifying had concerns about this program.?

.

We "underStand that it is possible to construct an argument that the

   
     

accurate, it would still not account. for key' details that were omitted from-

 

W) 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 and
Addin? 

 
 
   
 

 

 

 

that Would be necessary for an accurate
10.75 thee, nation. Thane? artment. clear! (had res?f?VEttiO'I13
and f?the?ngr-am?

   
   
 
     

   
 

 
 
     
 
    

master, Gonzales. hiniseilt contradicted -?this attempted
senator Spect
?d  

CI



 

 

. at Cem?ey,
Department had eXpressed ?reserVat'ions? or:

   
    
   
    
  

Was more isig-nl?cantithan
. . the evrdence IS ear-that Corney and others had
strongand- elem the eXei' of the President?s
authority to, eondu These concerns had:
been communiCated? to the White House 111 Several?meetings over a period of
i 'i NI "0 2004, and the White Housedid not

   ..  part. of the prsram in response to
thee, However, n'zalesis te-stimony'suggested that such
cancernsail'd reservations on the part of Justice Department of?cials never
eXisted. To the contrary, the Department?s" firm objections to this aspect of
the program were instrumental in bringing abou 
celle?ctionfin ?the program the President has confirmed.?

the-dispute about

  

 

 

rendering his July 24, 2007, testimony, Gonzales acknowledged in an
unclassified August 2007, letter to Senator Leahy that his use of the term
?terrorist surveillance program? and his ?shorthand reference to the
?program? publicly ?described by the President? may have created confusion,?
particularly for those familiar with the full range of NBA. activities authorized
by the President. Gonzales wrote that he was determined to address any
impression that his testimony was misleading. In this letter, Gonzales
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
?PreSid?ent had authorized. His letter also acknowledged the dispute
concerned, the legal basis for certain .NSA activities that were regularly
authorized in the same Presidential Authorization as the terrorist
risuirvei?llance program. Gonzales also acknowledged that Corney had refused
to certify a Presidential Audionzation ?because of concerns about the legal
basis of certain of these NSA 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 by his testimony.

 

 

"H?Z?GoriZalesstill suggested in. his August 114 letter ?lat'the' only dispute between
 ?ce?rned? aspects of the program

   
  

?We'aga-ln acknowledge. situation Gonzales 
 about a highly Classi?ed and Controversial
weihelisive Genz?i?ales adulahave-done other-things: to provide
{clearer and'i'nore; accmitate-testimony Without divulging classified
 Similarto theimpoftiof his August 1 letter, and without
providing;cp,erational details: about-these; other activities, he Could have
 par-tot the. distaste with the Department concerned the scope
 what  called ?the while: another part
theidispute cenCern?ed? other ?intelligence, activitiES?-that were eitherrelated
to the terrorist surveillance program or, more aCcurately, a different sepect
of Same NSA pregram. Gonzales also could have explained that different
actiVitieszunder the program r'a'iSed different concerns within the
Department ?beoauSev-eajc-h setof aetivities rested upon different legal

. theories. 4'47 

Alternatively, G'Onz?ales could have declined to discuss any aSpe'ct-of
the. diSputI? at  open hearingti?i?fg' 'Qr,~~Short of seeking a closed'session,
GonZales could have songht White House-appron to brief the Chairs-and
Houseman-12.137 Committees about ?the
program so, that. they wou1d full}r understand the nature of the NSA program-
s'ri'd'the Classi?ed issues surrounding the disPute.. Instead, Gonzales" gave
public testimony that wast-conmsing and. inaccurate, and had the 'effeCt of
misleading those who were :not' read into the program, as well as some. who
were. (1U)

Concerning Gonzalesis Jilly 2007 testimony in particular, the
queStions-I'Gonzales would be expected to answer were clearly foreseeable,
especially in light of the disparities-between his Februaiy 6, 2006, testimO'ny
 be?eyisi May 15, 2007', testimony. In addition, Gonzales had been
provided a letter by Senator Leah?y referencing Cor?ney?s testimony and.
advising Gonzales to be prepared, to discuss the legal authorization. for the
?President?s warrantless electronic surveillance program in March and April

 

4?13 As noted, Gonzales provided closed?session testimony before 0n
gulyulg, 200.7, inwh-ich lie-described the March 0004 dis ute. between White House and
 ?36 Department officialsras 

   

     

 

 

2.0304.? Gonzales?was therefore .on notice that tie-would be expected to bring

?clarity to the confusion that existed following Cemey?s testimony.. Rather

than clarify these believe Gonzales further confused the issues

_.threugh his resin-imonyi (U)

Finally, .we considered whether Gonzales?s testimony constituted

-  false statements and concluded that his statements d?ianot.

"constitute a criminal viOlatiO?n of 18 US ?53. 1001. A person viol'ates'tha't
statute;  ?knowing-grand" making a ?materially false, AfiCtitious, cor
fraudulentstaternent or 18 U.S.C. 'We do
not believe the evidence showed: that intended to mislead Congress
or 'w?lfully'make a false statement. Moreover, we do not believe a
prosecutor could. prove beyond a reasonable. doubt that there Was no
interpretation of his words that Could be viewed as literally true, eVen if his
testimony Was confusing and created misperceptions.449 (U)

In sum, we belieVe that while the evidence did not show that
?Gonzailes?s statements constitute a criminal Violation, or that he intended to
miSIea?d-Congress, his testimony was confusing, not accurate, and-had the
effectof misleading those who Were not knowledgeable about the program,
Histestimeny 'alisoundermined his credibility on this important issue-i As
the AttOrney General, we believe Gonzales should have taken more care to
ensure that his; testimony was as aCcur'a?te as pessible without revealing
classi?ed information, particularly given the significance of this matter and
the:'fa'ct that aspects of the dispute had been made public previously. (U).

 

449 See United States U. Milton, 8 F.3d 39?, 45 (DC. Cir. .of literal
truth? applies to false statement prosecutionsunder 18 DEC. 1001), cert. denied, 513
US. 919 (1.994). See also United States v. Hsia, 24 F. Supp. 2d 33 (D.D.C. 1998), inwhich
the court stated, false statement is an essential element of a prosecution under 18
11.83.. .1001, and if the statement at issueis literally true a defendant cannotbe
convicted of violating Section 10.01,? Id. at 58; United States U. Hsia, 176 F.3d 517, 525
(DC. Cir. on other grourids). (U)

 

1 

1 

{@Mum? 

 

 

 

 

ctr-asters Nine
(U)

Within weeks of theterrorist attacks of September 11., 2001, the
National initiated a Secret, compar?tmented
program. to collect and analyze international and domestic telephoneand
emailcommunications.and. related data. The. intent of theNS?A program,
which used; the cover termetellar Wind, was to function as an ?early
warning System? to detect and prevent future terrorist attacks Within the
Unite d? States. 41?s,! my 1/ 31/ it CC 1;ng

 

The program was authorized by the President in a series of
Presidential Authorizations that were issued at approximately 30 to 45 day
intervals and certified as to form and legality by the Attorney General. The
Presidential Authorizations. stated that an extraordinary emergency existed
permitting. the use of'el'ectronic suiveillancewithin the United States for
connterteimorism purpoSes, without a court order, under Specified
Circumstances. Under the program the NSA collected vast amounts of-
inl?ormation through- electronic Surveillance and other intelligence?gathering
techniqlles, including-intermation concerning the telephone and lei-mail
communications of American citizens and other US. persons. Top Secret
compartment'ed informatiOn derived from this collection Was provided-to,
among other agencies, the FBI, which sent 
verSi'ons of the ?inforrnatiOn to FBI field offices 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 ilnposed under the Foreign
Intelligence .SurVeillaiice Act (FISA), Executive Order 12333, and other laws,
Yet, the program was conducted with limited notification to Congress and
without. judicial oversight, even as the program continued for years after the

September 11 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 read~ins contrasted sharply with the
hundreds of operational personnel who were read into the program at the
FBI and other agencies involved with the program.

QT 

I 

 

 

all-11;: Operatibnof the: Program 

Under the program,_ the-NSA initially intercepted the content of

- international telephone and e?Inail communications in caseswhere :at' least
one. was reasonably believed to be associated Withsany?
. international?terroristgroup, These.._collecti0nsbecame known as bas?ke- 
eSteHarWinds row-m 

 
  

   

    

"TheN A also collected bulk telephony and e~mail meta data 
communications signaling information showing contacts between and?
among telephone numbers and email addresses, but not the contents of
.those?_communications. These collections became known as basket '22 
(telephone, meta-data) andba-sket 3' (e~mail meta data) of the Stellar Wind

 

 

rider asket 2% Collections

.  50 E?mail meta data included only
?bee,? and other 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 with
specific telephone numbers or e?mail addresses that satiSfied the standard

 

?tipped? to the
irdfv'MarehQQOihad been tipped to the-FBI, the vast majority of which Were

 

 

I -. for Querying the data as described in thePresidential Authorizations, A
smallramountor the-cellected content and meta data was analyzed bythe;

 working with other membe-rsof? thelntelligence Community, to b1,
?generate-intelligence reports ab'Out suspected. terrorists and individuals b3,

_po's_sib1yaseociated with them. Many-of these reports were disseminated-er b7E
i er as-l'ead's to FBI field offices As
 'ndiivi?diial U.S. telephone numbers

 
  
  

 

 to FBI field offices:er investigation or other action, The:
restiltsotthese investigations were uploaded into FBI databases.



The. Justice Department-had two primary roles in? the Stellar Wind
program. 'FirSt,thel Attorney General was required to certify each.
Presidential Authorization as to ?fo-rm?and- legality in effect, togilve the
Department?sassurance that the activities the President was authorizing;
the  to Conduct were legal. In carrying out. this responsibility, the
Attorney General was advised by the Esparitm?ent?s Of?ce of LegalCounsel
 As-we described in this report and discuss in the next seetion, we
during the early phase of- the Stellar Wind program the
Department lacked sufficient attorney resources to be applie to the legal.
reviewof the program and, due in significant part to the White Hou5e?s
salesmen close hold .ovEr the program, Was not able to coordinate its legal

review of the prOgram with the  

other primary role-in Stellar Wind. was as. a meme-r
ofthe Intelligence ?C?Ommunity. The FBI Was one of two main customers .of'
the-intelligence produced under the program (the other being; the 
Working with the: NSA, a ?small team of FBI personnel converted the 

   
 

Top Seeret Stellar Wind intelligence reports into loads that we b1, b3,
disseminated at the Secret level, under an FBI program calle b7E

to FBI field-offices for appropriate action. As-detailed in Chapter 'SiXa-nd
discussed below, we concluded that although the information produced
under the Stellar Wind program had value in some counterterr-orism

investigations, it played a limited role in the overall counterterrorism

efforts. Went?)

IL Of?ce 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 Departments
view of the legal support for the activities conducted under the program
changed otter time as more attorneys were read into the program. These

 

 

 

changes occurred. in three phases, In the first phaSe of the program

May 2008), the legality of the-program was

founded on an analysis developed by Johanoo,a Deputy Assistant Attorney

 'l'nth'e secondphaSe"(May 20035 through. May 2004;), the:
program?S-lzegal rationale underwent Significant-review and revisiony OLC
ASSistant Attorney General Jack Goldsmith, and Associate: Deputy AttOrney

Patrick Philbin. In the third and finalep'hase (July- 2004 through-
.- .J._ariuaiy [2007), based in part upon the legal coneerns raised by the

Department, the entire pregram- Was. moved from presidential authIOri?ty to
 authority under with oversight by the FISA Court.

In Chapters Three and Four, we examined the Department?s early role
 assessing the legality of the Stellar Wind program. The Justice
Department?scaccess to the program Was controlled by the White Heuse, and
former White House Counsel and Attorney General Alberto Gonzales told, the

 that the President decided whether non-?operational personnel,

including Department laWyers?, couldbe?read into the program. Department
 FBI fficials told us that obtainingapproyal to read in Department
officials FISA Court judges involved justifying the requests to- Counsel
to the Vieei'Presid?ent David Ad'dington and WhiteH'ouse Counsel Gonzales,

who effectively acted as gatekeepers to-the read-in process for

non+0perational officials. In contrast,?acCordingto- the NBA, operational
personnel at the NSA, CIA, and the FBI were read into the program 'on the

atlthorit?y of the .NSA 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 nonroperational personnel wasapplied at the Department of Justice in
an unneceSSarily res-tric?ws manner prior to March 2004, and Was
detrimental to; the Department?s role?. in the operation of the program from
its .ineeptiOn. through that period. We also, believe that. Attorney General
AshorOft, 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
believe 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 interviewed by the OIG for this
inVestigation, we. were unable to determine'the full 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

200.4. {assesses

 

 

     
     
  

 

7  I Wis-could not determine exactly why Yoo remained theionly
Department attorney assignedto- assess the program?s legality from 2001 

 his departure in. May 2003, we believe that this practice represented
an 'eXtraordinary and inappropriate departure from traditional .review
and. resultedin significant harm to the
- Department?s :01: in th?pl?ogra'm 

'Iii the earliest phase of the program, Yoo advised Attorney General

the, White Hou?Se that the collection activities under Stellar

Wind'swe?re a l?aWiul eXercise of the President?s inherent authorities as-

4

tinder'ArtiC'l?e ll of the Constitution, subject only?to the

Feurthg?rhendment?s reasonableness standard. In reaching this

conclusion, Yoo dismissed as constitutionally incompatible with 

Presidentis'Articie II authority the FISA statUteT?s provision. that Flt-3A was; to
her-the ?exclusive means? for conducting electronic surveillance. in the United
States-afariforeign intelligence? purposes, and he concluded that these.
provisions shouldb'e-read to avoid conflicts With the President?s-
emeritutienal Cbmimndenin?hief authority. - 7)

 
  

 

AS noted above, during the first year and a half of the Stellar Wind
 only?three'Department attorney's were read into the program w? Y'oo,
Attorney General: Ashcroft,- and James Baker, Counsel in the Office'of'
Intelligence Policy 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?ad-vice on the legal basis to support the
program. Thus, Yoo was providing legal opinions on this unprecedented

CXp?ahSiOn or the surveillance. authority without review by his O-LC

supervisor-or any other Department attorney. Rather, Yoo worked alOne on
project, and produced two major opinions supporting the legality of the
program? . -  

When additional attorneys were read into the program in 2003-, they
provided a fresh review of Yoo?s legal memoranda. Patrick Phi-lbin, an
Associate Deputy Attorney General, and 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
l- cl that Yoo?s anal sis fundamentally mischar'a?cteriZed
failing to address the fact
that the NBA was coll?ectin   and also failing to assess
the legality of this activity as it was earn the NSA. Goldsmith and
Ph?ilbiri also pointed to Yoo?s assertion that Congress had not sought to
restrict presidential authority to conduct warrantiess searches in. the
national Security area, and criticized Yoo?s omission from his analysis of a
PISA 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

 

 

       
 

 

_?aggressivei  of the law that revolved aroundthe Constitutional primacy
of the Pre's'ien't?sArticle powers, and he mayhave
  a faulty understanding of key elements of the program.

a 

a . described in?hapteir. Four, Galds-mith and Philbin?s reassessment
  legalityle Stellar Wind began after Yea left the Department in May
 and*culminateda3i'n' a 1084pag'e legal memorandum issued on May 6,
20043.- memorandum superseded Yo'o?s earlier Stellar Wind opinion-s.

arid the legality :of the: program?s electronic surveillance activities

enfs'tatu-tOry rather than Artie-lei] constitutional As a
of this new legal rationale, Department of?cials concluded that

authori? .toiccinduc't? electronic surveillance of thelenem rim

   

 
  
 
 

ease that the scope of collection under
  7 waslegally' problematic
arch-25004 (discussed below in Section 1:11).

We agree with many of the criticisms offered by Department officials
practice of alloWi'ng. a single Department attorney to develop
the? legal-justi?cation fer suCh a complex: and contentious program Without
critical review both within the Department and by the NSA. These of?cials
told us that errors in Yoo?s. legal memoranda may have been. identified and
Corrected if the NSA had been allowed to review- his work. They- also
stressed the importance of adhering to traditional practice of peer
reviewiof-all OLC memoranda and the need for the OLC Assistant Attorney
General, as a "Senate-confirmed official, to review and approve all such

epinionsj. 

These of?cials also stated that such review and oversight measures
are especially important with regard to legal opinions on classified matters
that are not subjected to outside scrutiny. We agree with these officials?
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.



 

 

 

 

   
 

 

We did not agree with. GonzaleS?s View that it was necessary fer
national Security reasons to: limit the number .of Department read-ins= to
those "?3th were absolutely essential,? as distinguished from the numerous.
operatiOnaleread-ins Who-were necessary to the technical implementation of
the program. First, thepr'ogram was as legally challenging-as it was

technically. complex; Just-as a; sufficient number of operational personnel
Weregreadzinto the program "to assure its proper technical implementation,
(we: attorneys as necessary should have beenread' in to

assure-the feundatiOn. not done
during at least the ?rsr 20 months of the program. 

Second, we do not believe that .readinggin a few additional Department
attorneys, during the .initial phase of zrould have jeopardized
national security, especially given th. perational personnel
whe were. cleared into the program dunng the same period.452 Intact, the
highly classified .nature' Ofth'e pr-Ograrn, rather than conStitu-ting an
argument; for limiting the OLC readwins to a single attorney, made the need
for'careful analysis and-review Within the Department and bythe NSA more

emailing; I   .

 
 
   
 

We alsoifound that the Expansion of legal thinking and breadth of

.?eXpertiise from readinggin additional Department attorneys over time

eventually?produced mere factually accurate and legally comprehensive
analyses concerning the program. Increased attorney readwins also was an
important factor-in grounding thegprogram on firmer legal footing under
PISA. The transition of the program from presidential authority to statutory
authority under PISA with judicial oversight was made possible through the
Collectiye? WOrl?s: of the attorneys who finally were read into the program
beginnling?in 2-004. The applications to the FISA Court to effectuate this
transiti?On 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 efficiently ?scrub? Stellar Wind?derived information in
PISA applications and improve the handling of Stellar Wind-related
di?eCOvery issues in international terrorism prosecutions.

 

45-? By the end of 2003., cunt};r Yoo, 

 

 

fir-r. seepage Visit amdl'White cf the Program
er

lnChapter FOur,.we- describe'how the-Department?s reassessment of
Yoois. legalTanalysis led Deputy Attorney: General James Comey,swho was
exercising the. powersof the Attorney General while Ashcroft Was
 in: March200i4, to-zcenclude that he. could not certify the-"legality
efgtheiSte-llar?Wind program. in reSpons-e, the. President sent Gonzales and
ViSit Ashoroftiin- the hospital to seek his. 
certification o'ftherprogram,  actiol'i Ashcroft refused to take. Werbelieve
that   the White House handled, its diSp'ute With the Department.
ab?ou-tihe: pregrarn particul-arly in dispatching. Gonzales and Card to
in'an attempt to override Comey?s decision was

troubling. 

Asde'tailed inCh?apter Ecur, by March 20.04 When the Presidential
Authorization in effect at that time was set. to expire, Goldsmith had already
rioti'fied?the House severalmont-hs earlier about the Department?s.
doubts concerning the legality of aspects-0f the Stellar Wind prorarn. Hie

     
 

     

I WhenAttorney- General. Ashcroftwas. hospitalized and unable to fulfill
his duties], Deputy Attorney General Comey assumed the Attorney General?s
responsibilities, Before the, Presidential Authorization was set to; expire on
 11,2004, Carney made-Clear to senior White House officials,
includingViee President Cheney and .White House Counsel Gonzales, that
the JuStiee Department could not certify the program as legal. The White
House. disagreed with the Justice-Department?s position, and on March 10',
2.00.4, cenvened a meeting of eight} congressional leaders to brief them on
the Justice Department?s [decision no-t to' the program and on the
need-to continue-the program. The White House did not ask Comey or
anyone from the Department to participate in this briefing, nor did it notify
any Department officials that the briefing had been convened.

Following this congressional briefing, at the direction of President
ush, GonZales and White House Chief of Staff Andrew Card went to the
hospital to Seek A-ttOrney General Asheroft?s certification of the.
Authori'zatiOn. Again, the White Heuse- did not notify any Department
officials, ineluding Comey, the ranking Department official 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

 

 

 i. tarts-Ir.?

toldGonzales and Card from his hospital bed that he supported the;

Department?s revised legal'POSitiO?, but that many We,? he Was-mat the

Attorney General at the time -. Com?ey was.?i53  - . ?7 Nil)

On Marsh 11, the. following day, Gonzales certified the Presidential

AuthoriZati?on as to form and legality. 

We-agr?ee with Director Mu'eller?s observation that the WhiteHouseis
failur'eito- have Justice Department representation at the congressional
brie?ng and ?thejattempt: to ersuade Ashcroft to, recertify the Authorization
 going through Comey ?gave the strong perception that the {White
House] Was trying to do an end run around the Acting [Attorney :Gzeneral]
whom they knew. to have serious concerns as to the legality of portiOns of

the pro gram.? .

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- mterview-key White. House officials,
ere-could not determine 'for Certain what caused the White House to Change
itsjpo'Sition  modify't?he program, although we believe the prospect- of
males resignations at the Department and the FBI was a significant factor in
this decision. - 

 
 

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 supportingcornplex national security programs --
espeei-ally' classified 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. 

 

453 Gonzales stated that even if he knew that Ashcroft was aware Comey 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 wasconcern over
Asheroftfs 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 1 can make this decision, and I?m
goingto make this decision.? (U)

 

 

believe that if traditional peer review and

. procedures had been adhered to attbe outset, the prospect that
aspects of the program would?have-rested on a questionable legal

-- foundation for over 2 years would have been greatly mitigate-d.

 

believe that the Department and FBI offiCialsj who resisted.
the pres?suife to recertij?f the Stellar Wind program. because Jof their belief
thataspeets of the program were not legally supportable acted courageously
and at signi?cant professional risk. We beli?Eve'that this action by
Department and FBI officials - particularly Ashcroft, Conley; Mueller,
Goldsmith, Philbin, and Counsel for Intelligence Policy James Baker ?4 Was
in accord With the highest professiOnal standards of the Justice

    

We recommend that when the Department of Justice is involved with
in the "future, the Attorney-General should carefullyassess
whether the Department has been given adequate resetirce?s to carryout its.
vital .,fimction? as'l'egal advisor to the President and should aggressively seek
additional resources if they are found to be insufficient. We also believe that
the White; House should allow the Department a sufficient number of
read-ins whenrequested, consistent with natiOnal security considerations,
to ensure. that-such sensitive programs receive .a full- and careful legal
review, 

EV. Transition or Program to Authority

1 . i inn 7

   

We also examined the transition of the Stellar Wind program?s
coneetion 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 happened, especially as
the program became less a? temporary response to the September 11 attacks

and more 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 NSA to intercept,
withOut judicial approval or oversight, the content of international
communications involving many US. persons and the SA collected
massiVe arnounts 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
signi?cant period of time, should be! cenducted pursuant to statute and

 

     

 

   

 

 

I  judicialoversight. We-raljso' 'beliCVe that placing these activities. under Court

supervision prevides an important measure of accountability for the

goviaftnnient?s conduet'thatlis? less assuredwhere the actiVities are both

authorizedgand by: the Eiste'cut'ive. Branch alone.

 matah??y of?the legalgreasoning on which the program. rested for

'S?v?raii.?y?afs and'the subStantialrestrictions placed on FBI agents? access
bf'programederived?iefOrmatiQn due to Stellar Wind?s highly

classified stat-usWere-additional? reasons for transitioning Stellar Wind?s

celleetion activities. {to .-FlSA::au-th0rity. We acknowledge that the transition.

wouldialways have been an enormouSly complex and timewconsu-minggeffort
that restedwupon'n'ovel- interpretations and uses of FISA that not all
'Cenrt?jjudges Would'authorize'. Nevertheless, the events described in this
reportsdemonstratethat a full..t1*ansition to PISA authority was achievable
and: in our judgment, should hairebeeh pursued earlier,

.1

?if. Impact of Stellar Wind. information on FBI Counterte?rrorism
Efforts 
As a user. ?offStell-ar Wind, program .infOrmation the. FBI disseminated
?@3131 field foiCes. These tippers primarily consisted of
espeei?e domestic telephone numbers and esmail'add'resses that bl,
had determined through meta data analysis were connected to b3:
individual?srinvolved  at. Qa'eda or. affiliatedgroups. The tippers also [3713
included'eontent ofeommunications intercepted by the NSA based upon its
determination. that there was probable cause to believe that aparty to: the
communicationwas' al 'Qaeda or an affiliated Otober 2-00 1
through February 2006, the NSA provided the FB      tellar Wind
tippers, the vaSt majority of ?h?ieh were domestic telephone numbers.

      

The FBl?s chief objective during the earliest months of Stellar Wind?s
operation was to expeditiously disseminate program information to FBI field
offices for investigation, while protecting the NSA as the source of the
information and the methods used to collect the information. The FBI b1,
assigned this task to a small group of personnel from the Telephone b3,
Analysis Unit (TAU) at FBI Headquarters. This group developed a b7E
straightforvvard process to receive the Top Secret, compartmented Stellar
Wind reports from the NSA, reproduce the information in a
non~CO-mpartmented-, Secret?level format, and. disseminate the information
inElect-ronic- Comm ?tions- or 1303 tothe appropriate field officesfor
investigation. These   ECs placed restrictions on how
the cOuld be used, instructing field offices that the information

 
   
 

 

 

 

I i if  ?17903.65 011137? and could: not be' used for any legal or j?Ildicial

   

The FBFS- participation in Stellar'Wind evolved ove1* time as. the.
program Cca?me?les'sa temporary response to the September 11 attacks;
and?more. a permanent surVeillancecapabililty. As Stellar Wind continued to:
be: tie-authorized, the FBI tried to improve the effectiveness-of its
 the program. Mest significantly, in February 2003 a team-of
 peiserinei(fream .10) was assigned-to won: .fullwtime'at the NSA to
 the Ell-31?s, participation in the preg-rarn. 

Team. 10?s chief responsibility was to disseminate Stellar Wind
inferrnatien to FBI field offices. However, oVer time Team '10 began to
partieipate. in-IStellar'Wind  other ways. For example, Team 10 Submitted
telephone numbers and email addresses to. the NSA for possible querying
  bulk meta data collected under the program, and Team 10
regularly contributed to the drafting process for Stellar Wind reports.
  foundthatthe-decision to assign Team 10 to the NSA rim-proved
the  knowledge about stellar Wind operations and gave the NSA better
insight about-how FBI. field offiCes investigated Stellar Wind information.
Thesebenefits-translated to. improve I tellar Wind report
process, and'by extension, in leads.



One of the other changes the FBI implemented to attempt to improve
the process for handlingStellar Wind leads was to make the 
Headquarterabased Communications Analysis Unit (CAU), instead of the
field responsible for issuing National Security Letters (N SL) to obtain
subsCiriber information. on tipped telephone numbers and e-mail addresses.
This measure, initiated- in July 2003, was intended to address agent
conCerns that the leads, which reproduced the information in a
Secretwlevel format, did not provide sufficient
information to initiate national security investigations, a prerequisite under
Department investigative guidelines to issuing NSLs. Agents
complained that the E03 suffered from vagueness about the source of the
information 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

fro?m the ontrol file, the non?investigative file created in

September 2002 as a repository to ?related communications b1, b3, b7E
between FBI Headquarters. and fiel uing NSLs from a control file

instead. of an investigative file was contrary to internal FBI policy. In

November 2006, the FBI finally opened an investigative file for the
project. We believe the and OGC officials involved in the decision

b1, b3,
b7E

   
     

   

   
  

    
 

 

    

the; had sufficient redic ton ither to connect.- the

 existing? preliminary 0 full investigations of al Qaeda and affiliated. WE. .
er'eupeor?te open new preliminary or full investigatiOns in compliance with 

investigative guidelines. However, we concluded
-1 the FBI could have,- and should have, openedan investigative filefer
 the decision we to: have FBI Headquartersinst?ad ?fOf
ieldf? ffiCesisfsue:NSLs?forf. leads. I I 

   

  
 

 

 

  
 
 

 

"We? alSO "triedto. assess the general role of Stellar Win-d1 information :in
 -i?Vestig_ations and. its value to the overall Counterterror'ism.efforts;
Similar toth-e FBI, We had dif?culty assessing the specific: value of the
program to the counterterrorism activities. W)

The-*rnaj orit-y of Stellar Wind information the NSA previded. the FBI
,reluate?dbtodeEStic telephone numbers and e?mail addresses the. NS-Ahad
,ti?ed dataanal; sis connectisto al .ae?dav-or' . b1,
  marinas. 3 b3,
'b7E

   
   

 

r31 ingly-? ge ts. .nd analyst Wl?th experience ins Iga
e?adsft?dldvus that most leads Were determined not to have any
co: to terrorism. These a ents and did not identify for us.
any ?Speei?c cases Where eads helped the FBI identifjr previously
unknownsubjectsinvolved1n terrorism, although we recognize that FBI 
official-s  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 counterterrorism efforts did not reach
explicit conclusions on the program?s usefulness. The first study found that
1.2 percent of Stellar Wind leads made ?fsignificant? contributions.454 The
second study did not identify any examples of ?significant? Stellar Wind
contributions to FBI counterterrorism efforts.455 The FBI OGC told us that

  

 

45" As we described earlier in this chapter, the FBI considered a tipper ?significant?
to any of three investigative results: the identification of a terrorist, the deportation
from theTU-nited States of-a suspected terrorist, or the development of an asset that can
report-about the activities of terrorists. 

455 As described earlier in this chapter, the FBI considered a tipper ?sign'ifiCantthree investigative results: the identification of a terrorist, the deportation
from the United States of a suspected terrorists or the development of an asset that can
report about the activities of terrorists. 

 

     

 

  Statements/by:Seiniior FBI officials in enn.gresSional testimony that the Stellar

 value were based in l?part'on. the results, of the: first study;
Which-found that  percent of the Stellar V?Wind, lead-s made significant
centribmiensvito FBI casesintervieWed generally were suppertive of Stellar Wind

 1, calling the information ?one tool of many.? in the. 

"ti?terrorism] "fforts that ?Could help move cases- forWard? by, fer-example, 131,133,
with individuals involved. in terrorism er b7E
identifying- additional terrorist contacts. HOWever,? FBI agents. and 

   

   

?also; toldus that the Stellar Wind information dissemi-nated-to-FBI field

offices: oeuld also be frustrating because it often lacked details about the
foreign individuals allegedly involved in terrorism with Whom domestic
telephone num 'ers and email addresses were in contact. Some agents also
project failed to adequater prioritize leads sent
to FBI field offiCes; i 

FBI Director Mueller told us that he. believes the Stellar Wind program
was, gursefulanjd that the-FBIimustfollow ever-y lead it receives in :order?to-
prevent future te-rrorist attacks; Herstated that to the eX-tent such
infOrrnation ean begathered and used legal-1y it mustbe: exploited, and that
dismi'SS the poteney of a program based? on the percentage of
hits.?- Oth'er this View thatan 
Q?nOt-be assessed by statistical measures alone. Genera-l Hayden said that
'thejvalue of the program may lie in its ability to help the Intelligence
community-determine that the terrorist threat embedded within the country
isnot as, great as once feared. Some witnesses also 'believedthat the value
either program should not depend on documented ?success stories,? but
ratherQn maintaining an intelligence capability to detect potential terrorist
activity. inthe: future. Several witnesses suggested that the program
provides  ?early Warning system? to allow the Intelligence Community to

 
   

detectjpotential terroriSt attacks, eVen if the system has not specifically

uncovered evidence of preparations for such an attack.



As part of our analysis, we sought to look beyond these comments of
general support for Stellar Wind to specific, concrete examples of the
program?s contributions that illustrated the role Stellar Wind information
either has or could play in the counterterrorism efforts. We examined
five cases frequently cited in documents we reviewed and during our
interviews as examples of Stellar Wind?s positive contributions to the 
countrirterrorism efforts. The evidence indicated that Stellar Wind
information had value in some of these investigations by cansing the FBI to
take aetion that led to useful investigative results. In other cases the
connection between the Stellar Wind information and the investigative

actions was more difficult to 

 

 

 

 -- ii In the. end, we found it difficult to assess or'qu'antify the overall
geffECt'iveness.of the::Stellar Wind program to the FBI"sIc?ounterterrorism
activities. HoweVer, based on the inter-views condiicted and documents
ire-Viewed,- we "cericlud?e?d that although Stellar Wind information had value in
some counts-rterrorism investigations, itgenerally played a limited ?role in
the overall Counterterrorism efforts. 

"Itisialso important to note that a significant consequence of the NSA
program and; the approach to assigning leads. for'program.information
 that FBI field offices. conducted many threatassessrnents on individuals
located: in the United States, including US. persons,ft-hait typically were
determinedinot to have any nexus to terrorism or repreSent a threat to
national security. As a result, the FBI collected and. retained a significant
amount ofpersonal inferrnation about the users of tipped telephone.
numbers d-euma'il addresses, Such as names and home addresses, places
eterneleymem, foreign "travel, and the identity of family members. The
_-resultsqof thesethreat aesessments and the information collected generally
WEre-repOrted in communications to FBI Headquarters and uploaded into
'FBl'databases, 

 

 
 

I lie collection of information in this 'oing?under

project, the successor FBI Irojeet to  hicih

ates-to'FBI field. offices lead information theNSA. erives from bulk

'd  ail meta data now collected u-nderFI-SA authority. Like b1

    I project requires FBI ?eld offices. to b3,
assessments. on: telephone numbers and. e?mail addresses identified through 13733

the analytical- process that the FBI is not already aware of, including

telephone numbers and email addresses one or two steps removed from

direct Centac'ts with individuals involved in terrorism. To the: extent the

leads derived from the FlSA?authOrized activities generate results similar to

those under Stellar Wind, the FBI threat assessments Will?continue to result.

in the collection-i and retention of a significant 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 national

security. -

      
 

  

 

        
 

      

 
 

We recommend that, as part of the project, the Justice
Department?s National Security Division (NSD), working with. the FBI,
should collect information about the quantity of telephone numbers and

e?mail addresses disseminated to FBI ?eld offices that are assigned as 131:
Action leads and that require of?ces to conduct threat assessments. The b3,
b7E

information compiled by the Justice Department should include whether
individuals identified in threat assessments are U.S. or persons
and whether the threat assessments led to the opening of preliminary or full
national Security investigations. With respect to threat assessments-that
conclude that users of tipped telephone numbers or e?mail addresses are

 

 

?Qt- in; terrorism and are not? threats to: national security, the
 Department.?shgoulitlytalce Stops to track the quantity?2and nature of"
this? ?IUiS-up?l?sbn informationcollected.and how the FBI-retains and? utilizes
thisihlortrratibn. Thiszwillienahl'e the J-uetiCe Department and-entities with
oversight:L-responSibilities, including the 016? and Congressional committees,
to, assess thesilmpact' this "intelrli?gen?Cet program, hasOn theprivacy interests
of-?g?g; pgrs'gnsuahd thCOIl?SldEl? whether, and for how long, such information
should retained; NF) 

 

we. Con-313mm With o-Url.? 61711: oversight
activ'i 'ahdiias part Of 11$ PeriQdiCIrevieWS of national -?S?curii_ty 
intrastigationse at FBI He - arters and field Of?ces, l??view a bl, b3,
requi?ements'i? 1115131156 'Ofi-the?lead and in any ensuing investigations:
particularly Will the: the collection. and use of 
P3175011, information -   ?1

    

 "Discovery and ?Scrubbing? issuer?? 

Although Stellar Wind was and: implemented as an
'intelligenoagathering, .prOgraIn? it was inevitable that the information; from
this .pmgram? Would the Department?s prosecutoifial functions,
  casesbrought in federal courts and in Seeking PISA orders
from the ?FISA-Cotlrt. We'found that the limited number of Department
read-Line ai'So had adverseeonsequences on issues related to theSe

Department functions. 

One suCh issue concerned the Department?s compliance with-
dgiscOVery obligations in, international terrorism- prosecutions,_ Which we
:d?isoussinChaer Several We determined that the Department-was aware
as: early as that information collected under Stella-r Wind could have: b1, b3
implicatiOns for-the Department?s litigation responsibilities under Federal
Rule of Criminal Procedure 16 and Brady 1). Maryland, 373 Us. 83 [1963}.

I [(137, lnrm?mm
I unuvvl it Hi] I  

b1,
b3,
b6,
b7C,
b7E

 

 

 

b1, b3, b6, b7c,

 

    

 

 

 

to . to respond on aease?byecase basis, to

~b7E .

   

Department attorneys with terrorism prosecution
responsibilities. were read into the Stellar Wind program until mid?2004,

 as aresult' the Department continued to lack theadvice of attorneys

Whowere ibest-?rrequipped to identify and examine the discovery issues in
the-program. Since that ti erartment has taken
Ediscovery motions

       

 

 

 

.- responses involve the use of the Classi?ed Information. 
 9(qu 'rgg: Act! App. 3, to file expaire.in-earnera pleadings..With
. - F1 

 

HoWever; the Department of Justice continues to lack a
comprehensive- process for identifying potentially discoverable Stellar Wind
information in terrorism cases. In this regard, we recommend that the
Department assess its discovery obligations regarding Stellar Wind?derived
inferrnation in international terrorism prosecutions. We. also recommend
that the Department carefully consider whether it must 1?e~examine past
eases to see whether potentially discoverable but undisclosed Rule 16 or
Brady material was 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-deriyed 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

 

 

government?sdiscovery obligations under Rule 16 and Brady.

lri additiOn, :we examined the 'issu'e of. the Department?s use of. Stellar
-Wi}n'dederived information in MBA applications. We} believevit was
foreseeable that some Stellar Wind-derived information-Would be Contained-
applications filed by'the Department?s Office Of Intelligence
Counsel Bake-r believed, and we agree, that
been detrimental to this relationship if the-Court learned that
information .?from Stellar Wind Was included in FISA applications without the
Gouritbein-gtold so in advance. As discussed in Chapter Three, White
House officials initially rejected the idea of reading in members of the: FISA
Court, but" after Department. officials continued to press. the issue, 
ultirnrately inJannaiy 2003 agreed to read, in a single judge .in Jannary 2002
(Pres?idingJ-udg?e Lamberth, followed by Presiding Judge Kollar-Kotel-ly in
May2002). 

  

The ?scrubbing? procedures imposed by the Court-and implemented
by Baker to account for-Stellar Wind~derivcd information; in international
terrorism PISA applications Created concerns among some OIPR attorneys
about?.thezrunexplained changes being made to their FI-SA applications.
These Scrubbing procedures alSo substantially altered the assignment of
Court judges for nearly 3 years. We concluded?, that once
Stellar Wind. began to affect the functioning of the FISA process shortly rafter
the program?s inception, the number of OIPR staff and PISA C0urt judges-
read.'.into Stellar Wind should have increased. Instead, read~ins were
limited to a single OIPR official for over two years and tothe Presiding Judge
pith-eaters Court for aperiod of four years, 

ThezJustice Department, together with the FBI and the NSA, 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 
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 91/ 

 

Wit. Gonzales?s Statements am

As part of this review, the OIG 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

 

 

"De "artment and FBI officials or the brink-of resi

  

 
 
 

 

c?enstitute fa falseustatement and? that he did, not intend to mislead Congress,

tweeter, we Concluded that his testimony? inusever-al respects was

7 7C?in?i5ing?2wn?Ot-scsursts and had the effect Qfm-isle'ading' those who-were
n?i?Im?Gthgeable- about the Program. - "i 

Aspects of the -Stel-1ar Wian program were first..d-isclosed publicly-ins

artiCIesi?ina?l?heNew York Times in. December 2005. In response,

the?l'Presidentpublicly confirmedva portion of which he called

surveillance-program describing itras-"the interception of the.
content-cf international commu-niCations of people reaSQnably believed: to-

 -1injk_seto al?Qaec?la and related organizatiOns (basket 1). Subsequently,
Attorney-"General Gonzales was questioned about NBA surveillance activities
lilr'tWO hearing-s before the Senate Judiciary Committee in February 2006?

andJuly2007.  .  -

 media accounts and former Deputy Attorney General
come-yrs Senate-Judiciary Committee testimony in .May2007,. it was publicly
  the Department and the White House'had air-major
disagreement related to; the program in March'2004.. As. dismissed in-
 Eour, thisdispute whitih resulted-in the visit'to Attorney General
Reheroft.?slh0spital.room. by Gonzales and Card and brought several senior.
nation after the. White-

  

   
  

?In his testimony before the Senate. Judiciary Committee, Gonzales-

-.stated. that the-dispute at issue between the Department the White
House. didenot' relate to the ?Terrorist Surveillance Program? that the

President had. Confirmed, but rather pertained to Other intelligence

 We believe this testimony created the misimpressicn that the
dispute concerned activities entirely Unrelated to the terrorist surveillance
program, Which was not accurate. In ad?ditiOn, we believe Gonzales?s
teetimony that Department attorneys did notihave ?reservations? or
"cdncerns" about the program the ?President has confirmed? was incomplete
and confusing because Gonzales did no . .  7_
Department?s concerns were what led to 
'7 7'  '7  _;nd that these concerns had been conveyed to the Wh1te House

   

 riod of months prior to and including March 2004- when the issue

was resolved. 

We recognize that Attorney General Gonzales was in the difficult
position of testifying about a highly classified program in an open forum.
HOWever, 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 officer, had a duty'to

balance his obligation not to disclose classified" information with the needy

 

  
 

 

net to, he misleadingin;his-testimony about the-events that?nearly ledt'o
massresignations, of the most-senior offiCials at the Just-ice Department and
  ?we'helieve-that Gonzales did notintend to .misl'ead
i  We was confusing, inaccurate, and had the
 ofirnisleadingthose Who were: not knowledgeable about the program.

 

- .Conelus'ion ii?)

From the inception of the Stellar. Windprogram in. October 20.01, v-aSt
amounts Of information about telephone and emrr?iailcomrnumcationswere,
in databases at the NSA. The NBA used this
information to. conductanalysi?s and dies-eminate reports to support the
efforts. We found that in. the early years of
 Stellar.  the Department-of Justice lacked the necessary
legal resources toicarry? out anadequ?ate: revier-of the legality of the
 TheWh-ite Hellse strictly-Controlled the Departnient?s'raccessto
?1.13 program. For the, ?rst year.  a half of only ShDepartrnent.
officials,werereadjinto Stellar Wind, andonly-S more officials had been read.
lay-the end of 2003'. Only a single Department attorney analyzed the legal
basistor therprOgram during  firsitye'ar. anda half- of its. operation.
after additional Department; officials were read into
the-program, the Department determined-that this attorney?s initial?le'gal

analysis was egg-1.1mm factually ?awed.

   
 

webeli?eve thatthe strict controls over the Department?s access. to the
program undermined the roleof 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 midv20?03' resulted in a contentious di-Spute with the
White House that nearly led to the mass resignation oif?the Department?s.
senior leadership, In March 2004 the White House continued the program
despite the Department?s contilusion that it found no legal suppOrt for
aspects of the pro ram. In the face of the otential resignations, however,
the White Hous
Department?s legal concerns. Eventually, the entire program was
transitioned, in stages, to the authorityof the FISA statute.

Given the bread nature of the collection activities under the Stellar
Wind program, the substantial amount of information the program collected
related to US. persons, and the nevel 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

        
 

 

 

?mi It?J-uu

 

belief-operation. 

 

peer? review and oversight- practices, particularly-during its first year and a

 

Wealso eoneluded that the Department should have begun 
transition the Stellar Wind program to authority earlier than March.

2004,..Twhen that .process. began, especially as Stellar Wind became less a-

temporary response. to the September 11 attacks and more a permanent.
surveillance teel. We believe thatsuch broad surveillance and collection

activities?conducted-in the?United Statesrthat impact persons,

partiallarly when they extend for such a signifiCan-t period of time, should
b'ec-onducted pursuant to statute and" be subjected to judicial oversight.

Placing-such activities under Court supervision, as now occurs, also

protrides an important measure of accountability-for the government?s
Conduct that isrless assured when the activities are authorized and

supervised-by the Executive Branch alone. 

Finally, We. believe that the Department should carefully monitor the
co'lle?Ction, 113e,,  retention of the information'that is now collected under

 authority, given theexpansive scope of the collection activities. The
Department-and other agencies should also continue to examine the value
cfeollecting such information to the government?s ongoing coun?terterrdrism

'effOr-ts,

 

 

 




 

 

 

  

 

 

mum u. .2 

'drv,

 

  
   
 

 

 

.5131}; SI

 

 

 

.Irll], II).