by Faiz Shakir, Amanda Terkel, Matt Corley, Benjamin Armbruster, Ian Millhiser and Nate Carlile
To receive The Progress Report in your email inbox everyday, click here.
When Congress passed the FISA Amendments Act of 2008 last year, it mandated that the inspectors general of the different branches of the intelligence community that participated in President Bush's surveillance operations, known as the President's Surveillance Program, conduct a comprehensive review of the program. On Friday, the inspectors general released their report, confirming that the Bush administration carried out "unprecedented," massive surveillance activities that stretched beyond the warrantless wiretapping program that had previously been revealed. Soon after the New York Times reported on the existence of a warrantless wiretapping program in 2005, Bush described the effort as his "Terrorist Surveillance Program." But the IG report makes clear that the term describes only one aspect of the overall surveillance program. In 2007, former deputy attorney general James Comey's testimony before Congress implied that "other programs exist for domestic spying" outside warrantless wiretapping, the existence of which then-attorney general Alberto Gonzales acknowledged in 2007. In constructing the legal rationale for the "Other Intelligence Activities," Office of Legal Counsel (OLC) lawyer John Yoo "did not accurately describe the scope" of the activities, which led former attorney general John Ashcroft to give "his legal authorization to the program for the first two and a half years based on a 'misimpression' of what activities the N.S.A. was actually conducting." The report found that the administration's "extraordinary and inappropriate" secrecy around the program not only allowed it to be built upon flawed legal arguments, but also "undermined its effectiveness as a terrorism-fighting tool."
'MISLEADING' CONGRESS: Rep. Jane Harman (D-CA), a former ranking member on the House Intelligence Committee, told the Associated Press that "she was shocked to learn of the existence of other classified programs beyond the warrantless wiretapping." Harman said that when she asked Gonzales two years ago if the government was conducting any other undisclosed intelligence activities, he denied it. "He looked me in the eye and said 'no,'" said Harman. Indeed, the report found that Gonzales walked right up to the line of lying to Congress by providing "confusing, inaccurate" statements about the National Security Agency's surveillance activities to lawmakers in 2007. The Justice Department Inspector General concluded that while Gonzales "did not intend to mislead Congress," his testimony "had the effect of misleading those who were not knowledgeable about the program." In an interview with the AP, however, former CIA director Michael Hayden insisted that "that top members of Congress were kept well-informed all along the way." "One of the points I had in every one of the briefings was to make sure they understood the scope of our activity 'They've got to know this is bigger than a bread box,' I said," said Hayden.
DETRIMENTAL SECRECY: As the New York Times' Eric Lichtblau and James Risen note, "the report found that the secrecy surrounding the program may have limited its effectiveness." At the CIA, "so few working-level officers were allowed to know about the program that the agency often did not make full use of the leads the wiretapping generated." The FBI found that "the exceptionally compartmented nature of the program" frustrated agents who were assigned to follow-up on its tips. Knowledge of the program was so closely held, according to the report, that a top aide to Vice President Cheney, David Addington, could personally decide who in the administration was "read into" the classified program. For the early years of the program, Yoo was the only OLC lawyer "read into" the program, which meant that he was the sole lawyer in the department analyzing the legality of the program. According to the report, senior Justice Department officials "criticized the assignment of a single OLC attorney to draft the legal rationale for the program. These officials noted that OLC traditionally adheres to a rigorous peer review process for all legal memoranda it issues." Yoo's boss at the time, Jay Bybee, told the DOJ IG that he was "surprised" and "a little disappointed" to learn that Yoo worked on the program without his knowledge. Neither Bybee nor Gonzales could explain how Yoo became responsible for analyzing the legality of the program. Because the inspectors general "lacked the authority to compel testimony," five former Bush administration officials -- Ashcroft, Yoo, George Tenet, Andrew Card, and Addington -- refused to be questioned.
CHENEY'S 'DIRECT ORDERS': One day after the IG report was released, the New York Times revealed another example of the Bush administration's efforts to keep Congress in the dark about the intelligence communities activities. Last week, seven House Democrats on the Intelligence Committee released a letter revealing that CIA Director Leon Panetta had "recently testified to Congress that the agency concealed information and misled lawmakers repeatedly since 2001" about an unidentified CIA operation that was an "on-again, off-again" effort until Panetta stopped it in June. The Times reported on Saturday that Cheney gave "direct orders" for the program to be concealed from Congress. Yesterday, an intelligence official hinted to the Washington Times that the program "involved assassinations overseas but declined to provide further details." The Wall Street Journal reports this morning that the now-terminated initiative "was an attempt to carry out a 2001 presidential authorization to capture or kill al Qaeda operatives." The WSJ also reports that in 2001, the CIA "examined the subject of targeted assassinations of al Qaeda leaders," but "it appears that those discussions tapered off within six months" and it "isn't clear whether they were an early part of the CIA initiative that Mr. Panetta stopped." Congressional Democrats are now calling for the program and the lack of congressional notification to be investigated. "The executive branch of government cannot create programs like these programs and keep Congress in the dark," said Sen. Dick Durbin (D-IL). Though some Republicans acknowledge that it's "wrong if somebody told the CIA not to inform the appropriate members of Congress," several GOP lawmakers have sought to defend Cheney and resist an investigation.