diff --git "a/markdown/misc/psp-0915.md" "b/markdown/misc/psp-0915.md" new file mode 100644--- /dev/null +++ "b/markdown/misc/psp-0915.md" @@ -0,0 +1,13919 @@ +) +Gordon S Heddell Acdting Inspector General Department of Defense Glenn A. + +Fine v Inspector General Department of Justice Inspector General National Security Agency Patricia A. + +Lewis' +Acting Inspector General Central Intelligence Agency Mazer Rbslyng};', zer +|| +Inspector General Office of the Director of National Intelligence + +## (U) Table Of Contents (U) Introduction...Ccvc I + +raesessrisennia 1 +RS, 1 + +(U) Scope OF TG REVISW eorrrmrrmrermnsssmsinssivessnsnnsessessansenses Tenensceasaress GEomEYBNRTNRRNRANY 2 +{U) MethodolOgY +/NE) NSA began PSP operations ofl +6 October 2001 Although the Director of NSA was +"comfortable" exercising the new authority and believed that it -was lawful, he realized that itCWbe contreversial. + +Under the PSP, NSA issued over reports. This included reports based on collected metadata, which was efined in the Authorization as "header/router/addressingtype information including telecommunications dialing-type data, but not the contents of the communication." +It also Jncludedmeports based on domestic content collection, which includes words spoken ina telephone conversatzon or sent in an e-mail{{9JE +' +: +ST +NF) NSA's PSP products, all of which. + +were sent to CIA and FBI, were intended for intelligence purposes to develop investigative: Ieads arid were not fo be useed for judicial purposes. L +jand NSAhadno mechanism to track and assess the effectiveness of PSP +reporting: + +## (U} Access To Legal Reviews And Program Information + +{E/4/20)-NSA's General Cournisel and Inspector General were not permitted to read the 2001 DoJ, Office of Legal Counsel opiriion on the PSP, but they were given access to draft 2004 +Office of Legal Counsel opinions. Knowledge of the PSP was strietly controlled by the White House. Between 4 October +2001 and 17 January 2007 ;!people were cleared for access to PSP information. + +## O (U) Nsa-Fisc Interaction And Transition To Court Orders + +STSTEW +&/NE-NSA's PSP-related interaction with the FISC was primarily briefings to presiding judges, beginning in January 2002, Interaction increased when NSA +and the DoJ began to transition PSP activities to FISC orders. + +After parts of the program had been publicly revealed in December 2005, all members of the FISC were briefed. NSA's PSP authorized collection of bulk Internet metadata, telephony business records, and the content of corimunications transitioned to FISC orders on 14 July +5004, 24 May 2006, and 10 January 2007, respectively. + +(U) Program oversight at NSA +G/} NSA's Office of General Counsel and Signals Intelligence Directorate provided oversight of NSA PSP +activities from October 2001 to January 2007. NSA OIG +oversight began after the IG was cleared for PSP information in August 2002. + +N +& +<< +2 +o)) ? + +B +oW +This page interitionally left blank. + +TM +T~ +> +LY>] +=) S +-t This page intentionally left blank. + +This page intentionally left blanik: +(SHMNE) For years before the 11 September 2001 terrorist aftacks in the United States, NSA had been using its authorities to focus the United States Signals Intelligence (SIGINT)-System on foreign intelligence targets, including terrorism, in response to Intelligence Community requiroments. After the attacks, NSA adjusted SIGINT collection, in accordance with its authorities, to counter the terrorist threat within the United States. + +In late September, the Vice President.asked the Director of Central Intelligence (DCI) if NSA could do more to prevent another attack. + +NSA's Director responded by describing impediments to SIGINT collection of ferrorist-related communications to the Vice President. + +Counsel to the- +Vice President used the information about impediments to draft the Presidential Authorization that established the PSP. + +## (U) Sigint Efforts Against Terrorists Before 11 September 2001 + +te//2F)-For over a decade before terrorists attacked the United States'in September 2001, NSA was 'applying SIGINT +assets against terrorist targets in response to Intelligerice Comimunity requiremerits. The Signals Intelligenice Directorate (SID) Counterterroxisin {CT) Product Line led these efforts in accordance with SIGINT authorities, which defined what NSA could and could not do against SIGINT +targets. + +## (U) Authorized Sigint Activity In September 2001 + +(U) NSA was authorized by Executive Order (E.O.) 12333, United States Intelligence Activities, 4 December 1981, as amended, to collect, process, and disseminate SIGINT +information for foreign intelligence and counterintelligence purposes in accordance with DCI guidance and to support the conduct of military operations under the guidance of the Secretary of Defense. NSA and other Intelligence Community agencies were required by E.O, 12333 to conduct intelligence activities in accordance with U.S, law and other E.O. 12333 +provisions. + +(U) Both DoD regulation and NSA/Central Security Service +(CSS) policy implemented NSA's authorities under E.O. + +12333 and specified procedures governing activities that affect U. S. persons (DoD Regulation 5240.1-R, Decenmber +1982, Frocediires Governing the Activities of DoD) Intelligence Components that Affect United States Persons and NSA/CSS +Policy 1-23, 11 March 2004, Procedures Governing NSA/CGSS Activiies that Affect U. S. Persons). + +~ASHSH-HH The policy of the U.S. SIGINT System is to +collect, retain, and disseminate only forelgn communications, +which, in September 2001, were defined in NSA's legal +compliance procedures (described below) as' communications: +having at least one communicant outside the United States +or entu'ely among foreign powers or between a. foreign power +and officers or employees of a foreign power. +All other +communications were considered domestic.communications. +NSA cotild not collect cornmunications from a wire in the +United States without a court order unless they-originated +and terminated outside the United States. +HS/SLAANEL +N 2001, NSA's authority to collect foreign +communications included the Director of NSA's: authonty to +approve targeting communications with one comm +the United States. if technical devices (such asfl +| could be-employed to limit-acq +communications to those in which the. ta:get is-a nonU S.. +person located outsmle the: Umted States += +-fs/-fS{"HNF}-NSA's Director coulcl exercise +. this. authouty, +except when the collection was otherwise regulated, for +example under FISA for commuinications collected from a +wire in the United: States. +(U) NSA safeguards to protect U.S. persons' Constitutional rights +' +(U) The Fourth Amendment to the U.S. Constitution protects all U.S. 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. + +Government.! United States Signals Intelligence Directive +(USSID) SP0018, Legal Compliance and Minimization +-eG#-}FP) USSID SP001S defines a 1).S. person as a citizen of the United States, an alien lavifully- admitted for penmaneit residence in the 'United States, unincorporated groups or associations a substantial number of the members of whith constitute cittier offhe first two groups, or corporations incorporated in the United States, ingluding U.S. flag non-governmental aireraft or-vessels, but not including those entities opeuly acknowledged by a foreign government to be directed and controiled by them. + +Procedures, 27-July 1993, prescribes policies and minimization procedures and assigns responsibilities to ensure that United States SIGINT Systemn missions arid activities are condtuicted in a manner that safeguards U.S. + +persons' Constitutional rights. (See Appendix G.) +~{877817/FrDuring the course of normidl operations, NSA +personnel sometimes inadvertently encounter information to, fromm, or abot U.S. persons. When that happens, they must apply standard minimization procedures approved by the Attorney General in accordance with E.O. 12333 and defined in USSID SP0018. + +These procedures implement the constitutional principle of reasonableness by giving different categories of individuals and entities different levels of protection. They ensure that U.S. person information is minimized during collection, processing, dissemination, and retention:of SIGINT by, for example, strictly controlling collection with a high risk of encountering U.S. persen jtiformation and focusing all reporting solely on the activities of foreign entities and persons and their agents. + +## (U) Nsa Director Used Existing Authorities To Enhance Sigint Collection After Terrorist Attacks (Shae)-In Oval Difice Meeting, Bcl Explained Nsa Director's Decision To Expand Operations Under Existing Sigint Authorities + +(U/ AFe86) General Hayden recalled that in late September +2001, he told Mr. Tenet about NSA actions under E.O. 12333 +to counter the terrorist threat. + +Mr. Tenet shared that information with the White House in an Oval Office meeting. + +(U/:/FOUS} We did not interview Mr. Tenet or White House s personnel during this review. We asked the White House to provide documentation of meetings at which General Hayden or NSA employees 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. + +## (U) Vice President Asked What Other Authorities Nsa Needed -F&E'Nfh\!Sa Options To Improve Sigint Collection Could Not Fill Intelligence Gaps On Terrorist Targets + +~{S/4{NE}General Hayden said that, in his professional judgment, NSA could not get the needed collection using the FISA. 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 surveillance immediately. Rather, the Attormey General had to ensure that emergency surveillance would satisfy the standards articulated in the FISA and be SHASHAANE)S Under its authorities, NSA had no other options for the timely-collection of communications of suspected terrorists when one end of those communications was in the United States and the communications could only be collected from a wire or cable in the United States. + +## (U//Foub) Nsa Director Described To The Vice President The Impediments To Improved Sigint Collection Against. Terrorist Targets + +HESHIHANFY According to NSA OGC, Dol.has since agreed with NSA that simply processing commilinications metadata in this manner does not constitute electronic surveillance under the FISA. + +(U/ /FoHQ) After two additional meetings, the Vice President asked General Hayden to work with his Counsel, David Addington. Because early discussions: about expanding NSA +authority were not documented, we do not have records of attendees or: spec1fic topics discussed at General Hayden's meetings with White House represerntatives. + +## . (V) The Presidential Authorizations + +{F +- +} Between 4 October 2001 and +8 December 2006 President George W. Bush signed +43 Authp.r;z_atlons_ two modifications, and one document described as The authorizations were based on the President's determination that after the +11:September 2001 terrorist attacks in the United States, an extraordinary emergency existed for national defense purposes. The Authorization documents contained the terms under which NSA executed special Presidential authority and were titled Presidential Authorization for Specified Electronic Survelllance Activities during a Limited Period to Detect and Prevent Acts of Terrorism withir the United States. They were addressed to the Secretary of Defense. + +hme firqt elumnatmg the possibility that the Authority could be interpreted to permit collection of communications with both ends in the United States and addifig an additional +'gualification that metadata could be collected for TSI +SHLOENF)-According to General Hayden, the Authorization, for the most part, did not change the communications that NSA could collect, but did change the locatiorni from which the Aeency could collect them by permitting collectic += +W +ited +: +: +that authorization; + +## (V) Nsa Discussions About The Lawfulness Of The Authorization + +' +NE} NSA leaders believed that they could lawfully carry out the President's authorizations. However, they also recognized that the Program would be controversial and politically sensitive. This section describes how key NSA +leadersthe Director, the NSA General Counsel, Deputy General Counsel, and Associate General Counsel for Operanonsconcluded that the Prg ogram was legally defensible. + +## (U) Director Of Nsa + +Generals. Hayden:and Alexander stated that they beheved the Authorization was lawful. + +## {U) General Hayden + +-(%SHSH/NF-) When asked how he:had decided to execute an; +Authorization that-some would consider legally and politically conhtroversial, General Hayden said that NSA's highest ranking lawyers had advised him, collectively and individually, that the Program was lawful under the President's Article Il powers. He said that three factors influenced his decision to 1mp1ernent the Authority. First, NSA would do exactly what the Authorization stated and "not one electron or photon more." +'Second, the Program was simply an expansion of existing NSA collection activities, Third, the periodic renewal-of the Authorization would ensure +'that the threat contintied to Justhy the Program. + +; +General Hayder: said that as time passed, hedetermmed that the Prograim was-still needed. Specifically; +heand NSA's Deputy Director reviewed the DCI threat meinorandum for each reauthorization and judged that the threats continued to justify the Program. + +P8/ +SEHHHHY General Hayden said that no-one at NSA +expressed concerns to him or the NSA 1G that the Authoerization was not lawful. Most importantly, General Hayden said that ho orie outside NSA asserted that he should stop the Program. He. occasionally heard concerns from meimbers. of Congress, but he sensed general support for the Prograrm from those he briefed outside NSA. + +He emphasized that he did not just "flip through slides" during briefirigs. He wanted to ensure that attendees understood the Program; +consequently, briefings lasted as long as the attendees warnted. + +## (U) General Alexander + +' +When Lieutenant General Keith B. + +Alexander becamnie NSA/ CSS Dlrector in m1d~2005 some. of reviewed its initial opinion and determined that the +' +remaining three types of collection were legally supportable, + +## (L)) Nsa Office Of General Counsel + +L ISEHHANE) +After the Authorization was signed on +4 October 2001, NSA's highest ranking attorneys, the NSA +General Counsel and Deputy General Counsel, as well as the Associate General Counsel for Operations, orally advised General Hayden that the Authorization was legal + +## (U):General Counsel + +{PS/+SH-NF) After having received the: Authorization ot +4 October 2001, General Hayden asked NSA General Counsel Robert Deitz if it was lawful. + +Mr, Deitz said that General Hayden understood that the Attorney General had already certified its legality by signing the Authorization, but General Hayden wanted Mr. Deitz's view. Mr. Deitz said that on +5 Qctober he told General Hayden that he believed the. + +Authorization to be lawful, He added that he emphasized to General Hayden that if this: issue were before the Supreme Court, it would likely rule, although not unanimously, that ttie' Authorization was legal. + +## (U) Associate General Counsel For Operations + +_ ++ +On 5 October 2001, the General Counsel consulted the Associate Gerieral Counsel for Operations at his home by :secure telephone. The Associate General Counsel for Operations was responsible for all legal matters related to NSA SIGINT activities: According to the 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 enough information to assess the lawfulness of the concept described, but records show that he was not officially cleared for the PSP until 11 Octaber 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 Caunsel was cleared for the PSP on 11 October 2001. He reviewed the Authorization with: Mr. Deitz and the Associate General Couinsel for Operations and also concluded that it was lawful. + +## (U) Discusslons On Legality + +F-0GC attorneys said that their discussions about the Program s lawfulness took inte account the severity +'of the 11 September attacks and the fear that foreign persons were. iri the United States planning attacks. 'The NSA +attorneys conelided that the Authorization wag lawful. + +Given the following factors; the General Counsel said the Authorization was constitutional and-did not viclate FISA +{S/;'N-F'} FISA was not 4 realistic means of addressing the terrorist threat inside the United States because the process lacked speed and agility. + +o +(U//EQOYS) The Authorization was a temporary 30-day +grant of authority.. +o +(U//EQYS) The statute allowed such an exception, or;. +to the-extent that it did not, it was unconstitutional. +The NSA attorneys determined that the President could issue the Authorization through his authority under Article II of the Constitution to perform warrantless electronic surveillance for foreign intelligence purposes outside and inside the United States. This conclusion, they said, was supported by the concurring opinion in Youngstoiwn Sheet +& Tube Co. v. Sawyer, 343 U.5. 579 +(1952), and appellate cases.? + +~ES//SL//NE) The Congressional Authorization of Use of Military Force and the canon- of constitutional avoidance, which requires a court to attempt to interpret issues so as to avoid constitutional questions, cemernted OGC's belief that the President's interpretation of Article Il authority had legal merit. + +{8t/ +11F) The Associate General Counsel for Operations described his position: + +ATS/4SLE) Does Congress have the authority to +limit Presidential Article 11 authority in foreign +intelligence collection? Given the threat, this was.a +perfect storm of events3,000 people killed, +airplanes +and buildings destroyed by foreign +terrorists; an attack +in the United States by & +foreign terrorist orgarization. +No one kriew where +tHe terrorists:were +or +if there were.more terrorists; +and NSA had a collection capability unable to +fianction because with the FISA, you cannot get += +| FISA orders needed to cover what you +'needed covered at that time to look for the +...... +terrorists. You go to the President and tell him +that there is a statute that prevents you from doing +something from a collection standpoint that may +prote_ct'the'United-States from a future attack and +that while the'country +is in danger, I have to +'adhere with a statute and can't get the amount of +warrants I need. Any president is going to say +there has got to be a way to da this a federal lawcari't let me stand here and watch the country go +down the tubes. Does the President have to abide +by'a statute depriving him of his authority and +watch the country +go down the tubes? Given the +case law of five different circuits with the Supreme +Court denying certiorari in two cases, there was +goad basis for. deciding this. + +(ES/#SL//H) +NSA OGC attorneys said that they did ot prepare a formal written legal opinion because it was not necessary. + +The Attorney General had already certified the legality of the Program, and General Hayden had not asked for a written legal opinion. The attorneys also said that they did riot have time to prepare a written legal opinion given the pace of operations. + +. + +NF}. + +After having concluded that the Authorization was lawful, NSA attorneys believed it was important to ensure.that NSA's 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. + +Recognizing that the legal basis of the Program might become controversial, they said that they wanted to ensure that NSA's execution of the Authority would withstand scrutiny. + +This page intentionally left blank. + +SHSTEWHSIHOSANFINSA PSP operations began on 6 October 2001 +and ended.on +17 January 2007 and involved the collection, analysis, and reporting of two types: of information; metadata and content. NSA +assumed that the:PSP was temporary and did not immediately formalize processes-and procedures for operations, which were quickly set up fo provide SIGINT +on terrorist targets. As the Authorization continued to be renewed, NSA implemented special procedures to ensure that selectors used for metadata analysis and domestic selectors tasked for content collection were linked to 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 PSP authority, although some of these communications were incidentally collected, and the OIG found nosintentional violations of the Authorization. Over the life of the Program, NSA issued more than-products based on PSP +data. According fo senior NSA leaders, the vaiue of the PSP was that SIGINT coverage provided confidence that someone was looking at the seam between the foreign and domestic intelligence domains to detect and prevent attacks in the Unlted States. + +## (V) Nsa Begins Psp Operations + +/A3%F} +On 4 October 2001, General Hayden received the initial Authorizatien and informed the SIGINT Director and other key personnel. + +oTMy oy +[=) S +cover ferny, STE LLARWIND +, was assigned to Program information on += = + +## Cfshshanf Authorization Renewed + +{S//NF} NSA leaders assumed the PSP would be temporary, so they did not establish processes and procedures for a long-term program, and they had plans to cease operations if the Authorization was not renewed. + +However, the President continued to renew the Authorization, and General Hayden stated that the DCI threat memoranda accompanying each renewal continued to justify the Program. + +## (U) Fisa Authority Still Not An Option In 2002 + +-In: January 2002, senior NSA leaders still +1er the FISA court order process nor the + +## _Itshshnf):Nsa's First Attempt To Obtain Fisa Authority Or-~ Failed. ' + +" In September 2002 NSA atternpted to obtain +} The request was prompted by a CT Product mber, who explained that technical problems FISC orders Line staff me delayed NSA's receipt of e-mail ollected throu hat the FBI had, obtained. + +[ +- +. + +. + +Iri ont case, an terrorist agents of interest to + +## (U) Nsa Structure For | Operation {Ui[Fel6) Nsa Organizational Structure For Psp Activity November 2004 (W) Chain Of Command + +(-SHNF-) NSA's Directorand Deputy Director exercised senior +operational control and authority over the Program. According to NSA's Deputy Director, Generdl Hayden handled +"downtown" and the Deputy Director managed everything +within NSA. The SIGINT Director at the start of the Program +stated that once she was confident that the Program had +appropriate checks and halances, she left direct management +to the Director, Deputy Director, and the OGC. +She noted +'thet General Hayden took personal responsibility for the +Program and managed it carefully. By 2004, specific roles +related to collection, analysis, and reporting had been +delegated to the SIGINT Director, who delegated management +responsibilities to the Program Manager and mission +execution responsibilities to the Chief of the CT Product Line +and subordinate leaders. + +## (U) Coordination With Fbi + +g HSTEWSE +/NT On 24 January 2003, NSA, SID, and the FBI agreed to detad FBI personnel working under NSA SIGINT authorities to SID* +Under the agreement, detailees assisted with terrorismrelated SIGINT metadata analysis, identified and disseminated terrorlsm*related SIGINT mforma'uon meeting + +## Fshshnfey Minimization Procedures And Additional Gontrols On Psp Operations' + +{PSHSTEW/1SHOE1NF) Management emphasized that the minimization rules required under non-PSP authorities also applied to PSP. The Authorization specifically directed NSA +to "minimize the information collected concerning American citizens, to the extent consistent with the effective accomplishment of the mission of detection and prevention of acts of terrorism within the United States." NSA c:omphed by applying USSID SP0018 minimization procedm es. For example, and as described in the following sections: + +o +When analysts encountered U.S. person information, +they handled it in accordance: with minimization +guidance, which included reporting violations or +incidents. + +Dissemination of U.S. person information +was +mirimized by requiring pre-release verification that the +information was related to countertecforism and +necessary to understand the foreign intelligence or +assess its importance:. +&/LNE) +In addition, +as PSP operations:stabilized and the +Authorization continued to be renewed, NSA management +designed pracesses and pmcedures to implement the +Program effectively while ensuring compliance with the +Authorization and protecting U.S. 'person information. By +April 2004, formal procedures were in place, many of which +wete more stringent than those used for non-PSP SIGINT +operations. Ore analyst commented that the PSP "had more +doeumentation than anything else [she] had ever been +involved with," Examples of controls, some of which will be +explained in more detail in the following sections of this +report, include: +o +(FS{SEEWS/SIOCINF ApprovalsShift +Coordinators approved foreign and domestic target +selectors for metadata analysis. +The Chief or Deputy +of CT Product Line Chief or the Program Manager +approved domestic selectors for content collection +under the PSP, +o +(ESAASTLW//SH//OC/NE) DocumentationRFIs, +leads, tasked domesuc selectors and tippers were +tracked inthe g + +Uustifications for +contact chammg were 1c,corded and justification packages and approvals for tasking domestic selectors +for content collection were formally documented. +77 +Momtormngtatlstxcs on content taslnng and. reportv. were maintained and reviewed by +'SID, Oversight and Compliance by 2003, ACT +Product Line employee stated: . + +. [Njowhere else did NSA have to report.on selectors ancl how many selectors were rolled off [detasked] and why." + +o +(U//FEHYE)0OGE involvementPersonnel working +under BSP authonty noted that they had a-continuous +dialogue with the OGC on what was permissible tnder +the Authorization. The Associate General Counsel for +Operatxons confirmed that the OGC "was:involved with +the operations people day in and day out." +o +(U / FFEBerDue Diligence MeetingsThe PSP Program. +Manager chaired due-diligence meetings attended by +operational, OIG, and -OGC personnel. They discussed +0IG and OGC reviews: and Program challenges, +processes,. procedures, and dociimentation. + +## M) Psp Operations: Metadata + +fl. + +) The Authorization defines. + +' metadata" as "headcr/ router/ addressing type information, including telecommunications dialing:type data; 'but not the contents of the ommunication." For example, e-mail message metadata includes the sender'and recipient e=mail addresses, +[ daes not include the subject line or the text of the e=mail, which are consuiered comtent. Telephony metadata includes such information as the calling and cailed telephonemumbers, but ni + +## ) Standards For Conducting Metadata Analysis + +-ANF) During an OIG review in 2006, the Associate +'General Coimsel for Operations described OGC's standards for complying with the terms of the Authorization when conducting nietadata enalysis and contact chaining. + +?) To conduct contact chaining under the PSP, the Authorlzatmn required that NSA meet one of the following coniditions; 1)t least one party to the communication had to be outside the United States, 2) no party to the communication ould be known to be a U.S. citizen, or +3) +based. on the factual and practical considerations of everyday life-on which reasonable and prudent persons act, there were specific and articulable facts giving reason to beheve that the comrnumcatlon relates to international terrorism or activities in preparatlon therefor. The Associate General Counsel for Operatmns said that OGC's guidance was more stringent than the Atithorization in that the OGC always required that the: third condition be met before:contact chaining began. + +Analysts were required to establish a lirik with designated: +groups related to international terrorism, al-Qa'ida; or-al- +O#'ida affiliates.1* +{S/4/NB) The Assdciate General Counsel for Operations said that: estabhshmg a link to intermational terrorist groups or al- +0a'ida and its affiliates met the Authorization's requirement that all activities conducted under the PSP be for the purpose of detecting and preventing terrorist acts within the United States. He explained that because the President had. + +determined that specified international terrorist groups and al-Qa'ida preserited a threat within the United States, regardless of where members were located, linking a target selector te such groups established that the collection was for and posed a threat-of hostile'action within the United States. + +the purpose of detectior and prevention of terrorist acts within the United States.. + +$8/-+SH/NE). In 2005 Program memorandum, NSA OGC: +defined the NSA standard for establishing a link to al-Qa'ida urnder the PSP, NSA could target selectors when "based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are reasonable grounds to believe a party to such communication +- +is an agent of al-Qa'ida, or a group affiliated with al-Qa'ida." +B+ +o M-Facts giving rise to +"reasonable grounds for belief" means relisble facts in'NSA's possession, either derived from its signals intelligence activity, or facts provided to NSA by another governmerit departmerit or agency, or facts: +reliably in the public record (e.g., & newspaper article). Whatever the source of information, the key is that NSA is basing its determination on articulable facts, not on bare assertions made by someone lse. We need evidence, rather than +onclusions. + +Thus:a mere statement that person X +i amember of al Qaeda, without more information, will not suffice as a justification fog chaining or for content tasking. I[nstead we need to know what facts have led NSA, or another agency, or the press, etc., to that conclhasion. Focus on the facts and-determine whether they lead to a conclusion, rather than accepting someone else's conclusion. + +If you dop't have enough facts to make a determination, ask for them. + +PSS +85 +E) In addition, the standard does not require certain knowledge, or even necessarily a better than 50/50 chance that the user of a phorne or e-mail is a member of al Qaeeda or an affiliated organization. + +It requires otily that a reasonable and prudent person exercising good judgment would conclude that there are grounds 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 & +preponderance of the evidence; rather, the standard requires some degree of concrete and articulable evidence or information on which to base a conclusion. + +## (U):Approvals For Metadata Analysis + +prowded in the RET or lead, analysts could search NSA and Intelhgence Community databases.and chain under non-PSP +authorities to find additional facts to substantiate the link. + +all alert hst selectms that rmght have generate c chainiing. One individual, the equivalent of a shiit coordinator; managed and monitored the alert process. + +TS +'When NSA personnel identified erroneous metadata collection; usually caused by technical collection system problems or inappropriate application of the Authorization, mirimization procedures required them to report the violation or incident through appropriate channels and to delete the collection from all NSA databases. Early in the Program, NSA reported three violations in which the Authorization was not properly applied and took measures to correct them. + +STLW/SLL/OC/NE) In +" chamed on numbers assomated with Iri this- case the target was frelgn but there was rio link to terrorism. + +chained on a domestic.telephione pumbet.provided +by +the FBI that 'was related to +' +investigation. +Tn this case, the target posed +a terrorist +threat inside the United States, butthere was no +known link to international terrorism. +o +TS{/STLW SSHLOCINE) In - NSA chained +on.metadata based on +i3 +provided by FBI related +While the +gglec +ere associated +with international +terrorism, +' +did not pose a threat of terrorist +attacks inside the +United States, + +## -Fshsiine) Bulk Metadata Needed For Effective Contact Chaining + +obtained a daily average of approximatel telephony metadata records and an estimate Internet metadata records. Metadata obtained under PSP +authorities was stored in a protected database, to which only cleared and trained personnel were given access: NSA +analysts 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 SIGINT analysts.!> + +## ) 1+ R + +Effective contact chaining requires. + +## {Fshehme) Psp Operations: Content + +e +... +. +PSrcontenl + operations +involved three separate activities: tasking selectors. +for content collection, collecting the contentof +communications associated with tasked selectors, and +analyzing the content collected, To comply with the +Authorization, NSA management combined standard +minimization procedures and specia'fly designed procedures +to task domestic selectors, collect the resulting +communications, and analyze and report the foreign +intelligence +they contained. 'Over the life +of the Program, NSA +tasked approximately QI8 | foreign and domestic selectors +for content collection, + +## Fshshnf) Tasking Selectors For Content Collection + +PR/ +FSTEEWFSHHOCHNE) "Taskin g" is the direct levying of SIGINT callection requirements on designated collectors. + +Analysts must task selectors to obtain a target's commurications. + +## Ts/ 8Tew//Shfoe7Nf) Under The Psp, B)), ,(B)(".G) ' + +"Before NSA personnel tasked target selectors for PSP conterit +collection, the Authorization required that target selectors +comply with two criteria. First, they had to determine that +"hased on the factual and practical considerations of +everyday life on which reasonable and prudent persons act, +there ate reasonable grounds to believe a party to sueh +communication is an agent of al Qa'ida, or a group affiliated +with al-Qa'ida," as described in guidance issued +by OGC iri +2005. Second, the purpose of the collection'had to be the +prevention and detection of terrorist attacks in the United +States. The OGC provided the same guidance for tasking +selectors for content collection as it had for contact ehaining. +Specifically, because the President had determined that al- +Qa'ida presented a threat within the United States, regardless + +of where its members were located, linking a target selector to designated international terrorist groups or al-Qa'ida and its affiliates, established that the collection was for the purpose of detection and prevention of terrorist acts within the United States, techniques were used under the PSP, making this a reasonable comparison. This estimate was based on data available in-August 2006 and cannot be-feplicated + +## ~{Tshshnfy Approvals To Task Domestic Selectors For Content 'Collection: + +'S +LLST +7} +NSA analysts determired whether foreign seleetors met the Authorization criteria and tasked them without further approval. However, because NSA leadership considered se_lfietors iocated in the United States to be extremely sensitive, the associated tasking process requived cextr menta reviews, and approvals than foreign: +TM +In 2008, NSA reported to a +, domestic telephone numbers and-domestic Internet addresses were tasked for PSP +content collection from October 2001 to January 2007. + +Domestic selectors were located in the United States and associated with al-Qa'ida or international terrorism and were not necessarily used by U.S. citizens. + +Irpa 2008 Atforney General Certification, NSA reported Wforeign telephone numbers and in excess of foreign Internet addresses had been targeted from October 2001 through December 2006, which spasis all but one month of the Program. NSA could not precisely estimate the number of foreign Internet addresses targeted because the tools used by analysts before September 2005 did not accurately account forthe number of iridividual addresses targeted. + +~{TSHSHINF) In 2006, the OIG Found that Justifications for Tasking Domestic Selectors Met Authorization Criteria. + +SAHSTE +_ +[E)}-During a 2006 review, the OIG +fouind that all items in-a randomly selected sample of tasked domestic selectors met Authorization criteria. Based on a statistically valid sampling methodology, the OIG was able to conclude with 95 percent confidence that 95 percent or more of domestic selectors tasked for PSP content collection could +'be linked to al-Qa'ida, its associates, or initernational terrorist threats inside the United States. Justification packages for all sample items tested were supported by one or more of the following types of information: +s Information associated with or obtained 'through FBI +investigations. + +; +j7In 2005, the OIG found that the largely manual +proccss to task and detask selectors for-confegt +collectiornt +was unrehable. Spe01fically, the OIG foun +errors when +comiparing trecords of domestic telephone numbers and +Internet identifiers approved for PSP content collection as of +November 2004 with those actually on collection. The errors +onsisted of selectors that had net been removed from +collection after being detasked, had not been put on +collection after having been approved, had been put on +collection because of a typogra h1cal error, or had not been +accurately recorded in thefl +' +.| In response +to-the OIG finding, managemerit took immediate steps to +correct tlhie errors and set up a process to reconcile approved tasked selectors with selectors actually on collection. + +## &) Collecting The Content Of Communications + +U/ }ECUG) +Collection refers to the process of obtaining +eommunications after selectors associated with intelligence +targets are tasked for collection at designated sites. Data +collected under the PSP was stored in protected partitions in +NSA databases. Access to the partitions was restricted to +PSP-cleared personnel. +{FS/fSHNE)The Authorization required that a collected communieation originate or tcrmlnate outside the United. + +States. + +NSA did not intentionally. + +nesti ications-under the PSP, and the ' Product Line to ensure that collected data was as intended and authorized. + +According to PSP program officials N SA' SEL +- +"Its purpose was to collect mternational communications. + +However, management stated that: +There are po re within the +8 +. + +i guarantee that no +: +] +calls will be collected. + +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 [the PSP]. + +SN 'The Program Management Office ideritified four ways that NSA might have unintentionally collected non-target data: + +o +Atarget.could have been correctly tasked using valid +selectors, but, in addition to collecting the desired +target communications, non-target communications: +~were inadvertently collected. +o + Avalid target selector could have generated targetspecific collection that ultimately proved the target not +to be related to al-Qa'ida. +o +Atechnical, human, or procedural error in the target +jdentification or tasking pr-oc'es's,cou'ld have resulted in +unintentional collection of communications not related +to al-Qa'ida. +o +Technical collection system problems could have +resulted in uninteritional collection of non-al-Qafida +related targets, even wheri all steps-in the target +identification and tasking process had been properly +executed. +NF-Over the life of the Program, NSA reported cidents of unintentiorial collection of domestic communications amn incidents in which the wrong selector had been tasked, +- (See Appendix F for details.) In those cases, persoiinel followed USSID SP0018 procedures. + +and were given detailed instructions to report the violations or incidents, adjust tasking, and delete collection records from NSA and other databases. + +## ~(Fshshayf) Analyzing The Content Of Collected Communications + +TS +SLAANE)-Analysis of content collected under the PSP +involved the same practices and techniques used in non-PSP +operations. One NSA manager des ribed the PSP as "just one +2 +_more tool in the analysts' tool kit." +B +commuriications were then transcribed, if necessary, and processed to make them useful for intelligence analysis and reporting. Analysis included tiot only listening to or reading the contents of a communication, but drawing on target knowledge, coordinating and collaborating with other gnalysts; and integrating collateral information, metadata, and information from databases.and published intelligenice reports to determine whether the comminications included foreign intelligence that was timnely, unigue, actionable, and VST +i NSA issuedliifadditional reports between 17 January 2007 and December 2008 +that were bised on an'\alyeie of data previously collected under PSP authority. + +## Matadata Analysis Reports (Tippers) + +- +& +- +O +SA retained documentation of +'theanalysis, supporting customer request or lead +information, and a description of the link to terrorism for +tippers based on PSP collection. Documentation of analysis +was not retained nunless a tipper was written. +Counterterrorism personnel updated information in a +computer tracking systemn to reflect the disposition of all +metadata analysis requests. From October 2001 through +January 2007, NSA issued +tippers to FBI and CIA: +o +tippers were based on Internet metadata analysis. +o +-'tippers were based on telephony metadata +analysis when telephone numbers had only direct +contact (one degree of separation) with a known +terrorist as defined by the Authorization. +bl, +b3, b7E +bl, +b3, b7E +bl, b3, +b7E + +o -tlppers were based on more detailed telephony +b1, b3, b7E +meetadata analysis that included contacts with two +degrees of separation from known. terrorists. + +ippers were based on telephony and Internet +metadata analysis. + +## {Fshshne) Content Reports (Uiif&Ug)Protectionlof U.S. Person Information In Reporting + +-("ES#SWNF) Before sending PSP reports to customiers, NSA +removed unnecessary U.S. person information, as required +by minimization procedures in USSID SPG018. The CT +Product Line reviewed PSP reports to ensure that they had +been written in accordance with these procedures. SID's +Oversight and Compliance office then reviewed PSP reports +containinig U.S. person information. +Oversight and +Compliance personnel reviewed U.S. person information in +reports, determined if it was necessary to understarid the +foreign intelligence in the reports, and submitted +recommendations for the inclusion of U.S, person +information to SID, Chief of Information Sharing Services for +final approval. For example, if an individual's name was not +necessary to understand the foreign intelligence in the report, +the name was deleted or changed to "a U.S. person." + +{TS//SL/JNE) +Oversight and Compliarice did not review. +tippers based +on metadata analysis. +When NSA began to +issue tippers based on the content.of 'comnmunications, SID +adapted +its procedures for the dissemination of U.S. person: +information. Additional Oversight and. Compliance personnel +were cleared for the Program to assi t with reviews. They +gave PSP and other terrorism reporting priority for review +over other Agency reporting. + +## (U) Use Of Sigint Product + +judicial purposes.. + +## Ue) Value Of The Psp + +FFEH-NF} Referring to portions of the PSP in 2005, General Hayden said there were probably no communications more important to NSA efforts to defend the nation than those involving al-Qa'ida; NSA collected communications when one end was inside the United States and one end was associated with al=Qa'ida or international terrorism in 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 Hayden said that, had the PSP been in place before the September 2001 +attacks, hijackers Khalid Almihdhar and Nawaf Alhazmi almost certainly would have been identified and located. + +{ESHSEH-NF +In 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 confidence that there were "not additional terrorist cells in the United States." +NSA's Deputy Director, who was the SID Deputy Director for Analysis and Production on 11 September 2001, echoed General Hayden's.comment: "The value of the PSP was in the confidence it provided that sereone was locking at the seam between the foreign and domestic intelligence domains." +-('PSHSIH-NE)The former SID Deputy D1rector for Data Alecander cited 'SIGINT.re:portmg onk B +as the most important. SIGINT success of the PSP +bl, b3, b6, NSA analysis of PSP metadata o b7C, b7E +. + +- += +L +Genersl Alexander said, "probably saved more lives" than any other +) From an operational standpoint, the PSP +enabled NSA to: + +o +Support customers +o +Provide SIGINT that contributed to customers' +investigative work +numbers do not account for requests subnutted before NSA +began to use an automated tracking system in April 2002. + +ion _obtained under PSP +and FBL +In the early days of the Program, the FBI said that the large number of tippers from NSA was causing therm uhtiecessary work because-agernts treated each tipperas a leead requiring action. + +General Hayden said that NSA's intention was that SIGINT information be added to FBI's knowledge base, not that the FBI act on each piece of information. When NSA realized that it was sending too much data tothe FBI, the Agency made appropriate adjustments. + +## (U/Fol0) Psf Reporting Confributed To Cusfomers' Investigative Vwork. + +FBI briefing dated 4 May +2 +state continues to provide tirnely and carefully vetted ..intelliience Y +] +to support FBI's investigations in connection with operations]." +provide feedback on N +had rio mechanismn tot +) +BI did not routinely SA reporting under the PSP, and NSA +rack-and assess the effectiveness of SIGINT reporting in general or PSP reporting in particular.' +Tracking PSP contributions was also difficult because. + +customers did-not know that General Hayden noted that success stories decreased over time as intelligence became more integrated and it became more difficult to attribute success to any one activity. + +S +- +NE) +The Program Management Office provided the following examples of PSP re orting that helped redirect FBI resources +' +viewed as vulnerable to terrorism targeung. The +"examples also include cases in which NSA provided reporting that contributed to FBI investigations, FBI confidential human sources, FISA warrants, arrests, and convictions. + +b1, b3, be, b7C, b7E +g D S +D % +B~ +w +' +' +n 12 March, the President directed DoJ to contmue working on the legal issues, and on 15 March OLC +issued a three page memorandum to the Deputy Attorney General stating that, while it had only begun to analyze the issues: and was not yet pre 'ared to issue a final opinion, it +(1, (b)3) +types of collection authonzed ufiSffS'B'@@Thc mmlmlzanon pwbablc cause standard states that the Agency may targer for collection, commiunications for which is probable cause + +hat on omm +5. + +A TTE +or agent o +: +L +. + +B +vnd lie communication is o or from a foreign counrry. + +This page intentionally left blank. + +(U/ /FEH6) The OIG issued a report for each of the +13 investigations 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-approved 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 Intelligenice Oversight). + +## (U) Recently Reported Incidents + +riot po sible to- deterrnme the exact nature and extent of that +collection. The NSA. OIG will close out this incident in an upcoming: report to the President's Intelligence Oversight Board +: +SLAAE) On 15 January 2009, the Department of +Justlce reported to the FISC that NSA had been using an +"alert list" to compare incomirig business records FISA +metadata: against telephone: numbers assoc1ated with counterterrorism targets tasked by NSA for SIGINT collection. + +NSA had reported to the Court that the alert list consisted of numbers for which NSA had determined that a reasonable articulabl usp1c1on existed that the numbers were related tC +- organization associated [ +. + +alert ist-had notbeen suhj ected to a reasonable artrculable +' +ion determination.. The NSA OIG has reported this. + +incident to the President's. Intelhgence Oversight Board and has: filed updates as required. The alertlist and a detailed NSA 60-day review of processes related to the Business Records FISC order were the subject of several recent submissions to the FISC and of NSA briefings to Congres jonal oversight committees. + +However, the majority of selectors on- the +(U//FOYO) Other IG Program concerns were documented in the 2003-2008 reports. + +Presidential Notifications are listed and described in Appendix F. The 2008 report described the adequacy of Program decompartmentation plans.' + +## (V) Acronyms And Abbreviations + +| Bits | per | Second | +|---------------------|----------------|------------| +| Bps | | | +| 'Business | Records: | | +| BR | | | +| Call | Detail | Records. | +| Central | Intelligence | Agency | +| Communications | | | +| Intelligenice | | | +| CIA | | | +| COMINT | | | +| _Cotinterterrorism. | | | +| CT | | | +| Director | of | Central | +| DCI | | | +| Director | of | National | +| DNI | | | +| Departmient | of | Defense | +| DoD: | | | +| Department | of | Justice | +| Dod | | | +| Executive | Order | | +| FISA | Arietidinients | Act | +| Federal | | | +| Bureau | | | +| of | | | +| Investigation | | | +| Foreign | | | +| Inteiligence | | | +| Surveillance | | | +| Act | | | +| Foreign | | | +| Intelligence | | | +| Surveillance | | | +| Court | | | +| @General | Counsel | | +| Gigabits. | per | Second | +| House | | | +| Perrianent | | | +| Select | | | +| Committee | | | +| on | | | +| Intelligence | | | +| Inspector | General | | +| National | Seeunty | Agency | +| National | | | +| Security | | | +| Agency/Central | | | +| Security | | | +| Service | | | +| NSA/CSS | | | +| Oversight | and | Compliance | +| 0&C | | | +| Office | | | +| of | | | +| the | | | +| Director | | | +| of | | | +| National | | | +| Intelligence | | | +| ODNI | | | +| Office | of | the | +| OGC | | | +| Office | of | the | +| oIG | | | +| OIPR | | | +| Office | | | +| of | | | +| Intelligence | | | +| Policy | | | +| and | | | +| Review | | | +| (now | | | +| the | | | +| Office | | | +| of | | | +| Intelligence, | | | +| National | | | +| Security | | | +| Division) | | | +| Office | of | Legal | +| oLC | | | +| | | PM | Program | Manager | +|---------|----------------------------|---------------|-------------|------------| +| PR/TT | Pen | Register/Trap | & | Trace | +| PSP | President's | Surveillance | Program | | +| RFKI | Request | for | Information | | +| SID | Sig_n'als.:llntellijgen(:e | Directorate- | | | +| SIGINT. | Sigqals | Inteiligence | , | | +| SsCL | Seriate | Select | Comimittee | on | + +TS/SCI +~ +Top Scret/'ensti"ve COmartmented.vInformation +~FSH S + +## (U) Glossary Of Terms + +(U).COMINT +(U) E.0. 12333 +(U) FISA +w(;'"S-,L,LSI/-/-NE) Header, router, and + +## Rs Hsehne Metadata V G + +| | | | (U) | SANITIZATION | +|---------------------|----------------|--------------|------------|-----------------| +| (U) | Communications | Intelligence | - | technical | +| and | | | | | +| mtelhgence | | | | | +| information | | | | | +| derived | | | | | +| from | | | | | +| foreign | | | | | +| communications | | | | | +| By | | | | | +| semeone | | | | | +| other | | | | | +| than | the | intended | recipients | | +| (U} | | | | | +| Executive | | | | | +| Order | | | | | +| 12333 | | | | | +| - | | | | | +| United | | | | | +| States | | | | | +| Intelhgence | | | | | +| Activities | | | | | +| - | | | | | +| provides | | | | | +| goals, | | | | | +| duties, | | | | | +| and | | | | | +| responsibilities | | | | | +| with | | | | | +| respect | | | | | +| to | | | | | +| the. | | | | | +| national | | | | | +| intelligence | | | | | +| effort. | | | | | +| It | | | | | +| mandates | | | | | +| that | | | | | +| certain | | | | | +| activities. | | | | | +| of | | | | | +| U.S. | | | | | +| intelligence | | | | | +| components | | | | | +| are | | | | | +| to | | | | | +| be | | | | | +| governed | | | | | +| by | | | | | +| procedures | | | | | +| issued | | | | | +| by | | | | | +| agency | | | | | +| heads | | | | | +| and | | | | | +| approved | | | | | +| by | | | | | +| the | | | | | +| Attorney | | | | | +| General. | | | | | +| (U) | | | | | +| The | | | | | +| Foreign | | | | | +| Intelligence | | | | | +| Surveillance | | | | | +| Act | | | | | +| of | | | | | +| 1978, | | | | | +| as | | | | | +| amended, | | | | | +| governs | | | | | +| the | | | | | +| conduct | | | | | +| of | | | | | +| certain | | | | | +| electronic | | | | | +| surveillance | | | | | +| activities | | | | | +| within | | | | | +| the | | | | | +| United | | | | | +| States | | | | | +| to | | | | | +| collect | | | | | +| foreign | | | | | +| intelligence | | | | | +| information. | | | | | +| {S/SH-NF) | | | | | +| Analytic | | | | | +| tool | | | | | +| for | | | | | +| contact | | | | | +| chaining | | | | | +| used | | | | | +| by | | | | | +| analysts | | | | | +| to | | | | | +| do | | | | | +| target | | | | | +| discovery | | | | | +| by | | | | | +| quickly | | | | | +| and | | | | | +| easily | | | | | +| navigating | | | | | +| global | | | | | +| communications | | | | | +| metadata | | | | | +| addressing:type | | | | | +| information, | | | | | +| including | | | | | +| telecomimunications | | | | | +| dialing-type | | | | | +| data, | | | | | +| but | | | | | +| not | | | | | +| the | | | | | +| contents. | | | | | +| of | | | | | +| the | | | | | +| communication | | | | | +| {&//NF) | | | | | +| NSA's | | | | | +| primary | | | | | +| storage, | | | | | +| search, | | | | | +| and | | | | | +| retrieval | | | | | +| mechanism | | | | | +| for | | | | | +| SIGINT | | | | | +| text | | | | | +| (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. | | | | | +(U) SIGNALS INTELLIGENCE. +{U) A category of intelligence comprising +individually or in combination all +communications intelligence (COMINT), +electronic intelligence (ELINT) and foreign +instrumeritation-intelligence (FISINT), +however transmitted. +(U) TEAR LINE REPORTS +{U) Reports used to disseminate SIGINT- +derived information and sanitized +information in the same record. The +sanitized tear line conveys the same facts as +'the COMINT-controlled information, while +hiding COMINT as the source. +(U) TELEPHONY +{U) The technology associated with the +electronic transmission of voice, fax, and +other information between parties using +ystems historically associated with the + +(U) TIPPERS + +## Appendix A (V) About The Review + +) +S +0. + +S +(=Y +< += +) +This page intentionally left blank. + +## (V) About The Review (U) Objectives + +(U) The Foreign Intelligence Surveillance Act (FISA) +Amendments Act of 2008, which was signed into law or +10 July 2008, requires that the Inspectors General of Intelligence Comimunity elements that participated in the President's Surveillance Program (PSP) conduct a comprehensive review of the Program. The NSA Office of the Inspector General (OIG) reviewed NSA's participation in the PSP. The specific review objectives were to examine: + +o +(U) The establishment and evolution +of the PSP as it +affected NSA +o +(U) NSA implementation of the PSP, including +preparation and dissemination of product under the +PSP +o +(U) NSA access to legal reviews of the PSP and access +to information about the Program +o +(U) NSA communications with and representations +made to private sector entities and private sector +participation +o +(U) NSA interaction with the Foreign Intelligence +Surveillance Court (FISC) and transition of PSP~ +authorized collection to court orders +o +(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 DoD and NSA/CSS Inspectors Gereral. + +{(U) The review was conducted from 10 July 2008 to 15 May +2009 in coordination with the Inspectors General of the Department of Defense, Office of the Director of National Intelligence, CIA, and DoJ. + +u/ [EOU6) The scope of this review was limited to NSA's participation in the PSP from 4 October 2001 to 17 January +2007, The review included NSA activities before and. after the terrorist attacks of 11 September 2001 that led to the Presidential Authorization ori 4 October 2001, Italso included the transition of PSP-authorized activity to FISC +orders; +W'F') To satisfy review objectives, we interviewed +_lcurrent and former NSA personnel who participated in the PSPiincluding NSA Directors and Deputy Director, General Counsels Deputy General Counsels, Associate General Counsels for Operatzons and the Inspector General responsfljle for Program overs1ght from A, a2t o eneral Counsel +- +. + +' +. + +| were conducted with other G offices 1nv01ved in the Jomt PSP review. + +(U/ /FOHO) We requested White House documentation of meetings at which General Hayden or NSA employees. + +discuissed the PSP or the Terrorist Surveillance Program with the President, Vice President, or White House personnel, but did not receive a response before. pubhcatwn of thlS report +(U/ [ESHO) We reviewed NSA records dated 27 July 1993 to +10 July 2008 that pertained to review objectives. Records included NSA policies and regulations, correspondence, e-mail, briefings, notes, reports, calendars, and database reports. + +=S4ANE)- Numbers of selectors tasked and reports issued +were based on information provided by the PSP Program +Management Office and were not independently verified +during this review. +(U//ReE6) Information abotit 1nd1v1duals cleared for access to Program information was based on records provided by the PSP Project Security Officer and were not independently verified during this review. + +## (U) Prior Coverage + +(u/ /F@-U-Q) The OIG began oversight of the PSP-and related +activities in August 2002 and issued twelve reports dated +21 February 2003 through 30 June 2008 (Appendix E.) The +OIG also issuted 14 Presidential notifications from +March 2003 to October 2006 (Appendix F). +Detailed +discussion of the OIG's oversight of the PSP is included in +Section VIII of this report. + +{TS/{/SL//NE). As portions of the Program were transitioned +to FISC orders for the collection of internet metadata and +telephony business records, the OIG reviewed the execution +and adequacy of controls in-ensuring compliance with the +orders. The OIG did not test the efficacy of controls for +'metadata collected under the authority of the PSP or court +orders. Three reports summarized OIG investigations into +possible misuse of the Authority or violations of FISC orders. +One report summearized the OIG's oversight of the PSP, and + +the last report reviewed the adequacy of Program +decompartmentation plans. + +o~ +=) +This page intentionally left blank. + +## Appendix B (U) The Presidential Authorizations + +. + +Th intention ally left blank, +15 page + +## (U) The Presidential Autherizations + +R +s oy e +7 +e +9) The Authorization documents that contained the terms under which NSA executed special Presidential authority were addressed to the Secretary of Defense and were-titled "PrresidenfialAuthqfization for Specified Electronic Surveillance Activities during a Limited Period to Detect and Prevent Acts of Terrorism within the United States." The first Authorization consisted of eight paragraphs, and all but one subsequent Authorization consisted of nine. There B +43 +A +i ns, two modifications, and one document described as + +## Description Of Authorization Contents By Paragraph: (U) Paragraph 1 - The President's Conclusions + +ST +TWACA +3 +The first paragraph referred to the +11 September 2001 terrorist attacks and the President's. + +directions +[to the Secretary of Defense] on employing U.S: +Armed Forces. The first Authorization contained statements on the President's conclusions based. + +on information:about terrorist capabilities; this statement became the second paragraph in subsequent Authorizations. After the first Authotization, paragraph one included references to.all previous versions of the Authorization and the dates they were signed by the President. + +' + +## (U) Paragraph 2 - Terrorism Threat + +. + +' +2 +After the first Authorization, the second paragraph stated that the President based his conclusions about terrorist capabilities on information +'proyided by the DCI, including an attached terrorism threat assessmernt, a document that consisted of five or more pages and was. signed by the DCI (later by the DNI) and the 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 first Authorization the considerations were in paragraph two. + +. + +. + +, Paragraph three of the first Authorization stated the President's determination that an +"extragrdinary emergency" existed made electronic surveillance without a court order a compelling Government: +interest:l + +## ~(Tshstewhshochne) Paragraph 4 - Authorized Electronic 'Surveillance: + +VS +//STEW//SHHOE/ANE Paragraph four contains the President's statement of the basis for issuing the authority and the substantive description of the lectronic surveillance that he authorized and directed. The President states that he is acting pursuant to Article II of the Constitution, including the exeeutive power, his authority as Commander in Chief of the Armed. Forces, his duty to preserve, protect and defend tlie Constitutioni, and the Authorization for Use of Military +'Force Joint Resolution (Public Law 107-40), with due regard for the Fourth Amendment. There were major and minor changes in that description, resulting in seven versions of paragraph four over approximately six years. + +## "(Ts#S!#N'F) Changes To Authorization Language On Electronic Surveillance + +| | | | N | WS | : | +|------------------|---------------|-------------|---------------|-----------|---------------| +| Version/Date | 'Description | of | Chan_ges | fo | Authorization | +| Language | | | | | | +| First | Authorization | Authorized | NSA | to | acquire | +| 4-Qstober | 2001 | associated | mietadata | of | telephony | +| communications | including | wire | aud | cable | | +| commniunications | carried | into:or | out | of | the | +| United | States | for | which | there | was | +| cause | to | believe | that | one | of | +| (L)1), | (b) | 3) | _that | one | communicant | +| was | tngaged | iu1-0t- | preparing | for | acts | +| international | terrorism.? | This | was | the | only | +| version | of | the | Authorization | to | use | +| "probable | cause." | | | | | +| Version | 1 | also | authorized | the | acquisition | +| telephony | and | Internet | metadata | for | | +| communications | with | at | least | one | | +| communicant | outside | the | United | States | or | +| which | no | communicant | was | known | to | +| citizen | of | the | United | States. | | +| Paragraph | four | included | the | authority | to | + +(U) The thiird paragraph was marked with the number three in two places until the error was corrected in the Scptcmber 2003 authorization. + +*(U) This parenthetical condition is present in all descriptions of content collection. + +| Description | of | Changes | to | Authorization | +|---------------------|------------|------------|-----------|------------------| +| \'_/ers'(onlpate: | | | | | +| Language | | | | | +| retain, | | | | | +| process; | | | | | +| analyre | | | | | +| and | | | | | +| disseminate | | | | | +| intelligence | | | | | +| from | | | | | +| the | | | | | +| communications | | | | | +| acquired | | | | | +| under | | | | | +| the | | | | | +| auithority. | | | | | +| Version | | | | | +| 2 | | | | | +| Authorized | | | | | +| NSA | | | | | +| to | | | | | +| acquire | | | | | +| the | | | | | +| content | | | | | +| and | | | | | +| 2:November | 2001 | and | | | +| 30 | Navember | 2001 | | | +| 'associated | | | | | +| metadata | | | | | +| of | | | | | +| communications | | | | | +| for | | | | | +| which | | | | | +| there | | | | | +| was | | | | | +| "reasonable | | | | | +| grounds | | | | | +| o | | | | | +| believe" | | | | | +| that | | | | | +| one | | | | | +| of | | | | | +| the | | | | | +| commmuricants | | | | | +| was | | | | | +| BIEBRGEIEY | | | | | +| | | | | | | +| L1at | | | | | +| one | | | | | +| communicant | | | | | +| was | | | | | +| "outside | | | | | +| the | | | | | +| United | | | | | +| States | | | | | +| and | | | | | +| was | | | | | +| engaged | | | | | +| in | | | | | +| or | | | | | +| preparing | | | | | +| for | | | | | +| acts | | | | | +| of | | | | | +| international | | | | | +| terrorism.3 | | | | | +| This | | | | | +| change | | | | | +| to | | | | | +| the | | | | | +| wording | | | | | +| on | | | | | +| collecting | | | | | +| content | | | | | +| eliminated | | | | | +| the | | | | | +| possibility | | | | | +| of | | | | | +| interpreting | | | | | +| the | | | | | +| authority | | | | | +| to | | | | | +| permit | | | | | +| collection | | | | | +| witli'both | | | | | +| ends | | | | | +| in | | | | | +| the | | | | | +| United | | | | | +| States. | | | | | +| This | | | | | +| version | | | | | +| also | | | | | +| authorized | | | | | +| the | | | | | +| acquisition | | | | | +| of' | | | | | +| telephony | | | | | +| and | | | | | +| Internet | | | | | +| metadata | | | | | +| for | | | | | +| communications | | | | | +| with | | | | | +| at | | | | | +| least | | | | | +| one | | | | | +| sommunicant.outside | | | | | +| the | | | | | +| United | | | | | +| States, | | | | | +| with | | | | | +| no | | | | | +| comfuricant | | | | | +| known | | | | | +| to | | | | | +| be | | | | | +| a | | | | | +| citizen | | | | | +| of | | | | | +| the | | | | | +| Uriited | | | | | +| States, | | | | | +| or | | | | | +| when | | | | | +| there | | | | | +| were | | | | | +| reasonable | | | | | +| grounds | | | | | +| to | | | | | +| believe | | | | | +| that | | | | | +| the | | | | | +| communication | | | | | +| related | | | | | +| to | | | | | +| international | | | | | +| terrorism | | | | | +| or | | | | | +| activities | | | | | +| in | | | | | +| preparation | | | | | +| for | | | | | +| international | | | | | +| terrorism. | | | | | +| Version | | | | | +| 2 | | | | | +| was | | | | | +| used | | | | | +| in | | | | | +| two | | | | | +| Authorization | | | | | +| docuimerts, | | | | | +| Version3 | | | | | +| Eliminated | | | | | +| 9 | January | 2002 | to | | +| 14 | January | 2004 | | | +| prekus | VEI'SIOI'I | | | | +| This | | | | | +| version | | | | | +| of | | | | | +| the | | | | | +| authorizing | | | | | +| provision | | | | | +| was | | | | | +| used | | | | | +| in | | | | | +| 19 | | | | | +| of | | | | | +| the | | | | | +| documents. | | | | | +| Stated | | | | | +| that | | | | | +| the | | | | | +| Department | | | | | +| of | | | | | +| Defense | | | | | +| may | | | | | +| Version | 4 | | | | +| 11 | March | 2004 | | | +| . | bn | the | condltxon | that | +| retneval | | | | | +| of | | | | | +| that | | | | | +| information | | | | | +| was | | | | | +| conducted | | | | | +| in | | | | | +| accordance | | | | | +| with | | | | | +| the | | | | | +| Authorization. | | | | | +| The | | | | | +| term | | | | | +| "acquire | | | | | +| was | | | | | +| defined | | | | | +| with | | | | | +| respect | | | | | +| to | | | | | +| metadata | | | | | +| .| | The | provision | | | +| contamed | | | | | +| the | | | | | +| Presmlent | | | | | +| s | | | | | +| statement | | | | | +| that | | | | | +| both | | | | | + +}(U) Qualified as "based-on the factual and practical considerations of everyday life on which reasonable persons act," + +Description of Changes to Authorization +Version/Date +LEanguage +these clarifications were consistent with all +| previous Authorizations and thus.approval for +'actmg under-that defimtlon was retroactive. +Version 5 +_ +Became effective in the middle of a previously +19 March 2004 +authorized period as the result of a +' +modification. +NSA's authority to collect content and +associated metadata was changed to specify +that the:terrorist groups for which there was +authority to-collect were al-Qa'ida, groups +affiliated with al-Qa'ida, or another group that +- the President determined was in armed conflict +with the United States. +NSA's authority +tof +2 +b)), B3y +Version 8 +_ +Also became effective in the middle of a +2:April 2004 to 10 +previously authorized period as the result of & +September:2005 +modification. +| NSA's authorityl +(b)(1). (b)3) +al-Onida, A group amhated With al-Qaiaa, or +of another group that the President determined +fas in-avmied conflict with the United States. +Version 6-'was used in 12 of the docurnents. +Version 7 +j +' +affiliated +26 Qctober 200510 8 +- +. +e +December 2006 +Version 7 and was used in the final nine +documents. + +## (Uifohoy Paragraph 5 - Detect And Prevent + +In paragraph five, the President stated that the surveillance was essential and appropriate to detect and prevent future acts of terrorism in the United States. + +## (Unfeyo) Paragraph 6 - Minimization + +-1'1'817'3%*7&*7"/617'7'667'1'1'?) Paragraph six directed that information concerning Americari citizens be minimized to the extent consistent with the mission and with the Authorization. + +## (Uiifouoy Paragraph 7 - Notifying Congress + +' +) Paragraph seven stated that not1ficat10n of the Authonzatmn outside the executive branch would be deferred, but the President stated his intent to notify Congress when consistent with national defense. When select members of Congress were briefed on the Program, information on the briefings was contained in paragraph eight. + +## (U) Paragraph 8"-'_O'Ther Notifications + +The initial Authorization specified that collectlon would cease 30 days after signature and required reporting on changes in circumstances. underlying the Authorization. + +After the initial Authorization, paragraph eight coritained a statement on restricting notifications to U.S. Government officials outside the executive branch or it named individuals, by title, who had been informed since the previous Authorization period expired. + +## (U) Paragraph 9 - Expiration + +; +After the initial Authorization, the exact date of expiration was specified in paragraph nine. + +## (U/Foyq) Paragraph 10 - "The President's Ultimate Responsibility" + +The Authorization signed in March of 2004 - the only one not signed by the Attorney General or a Deputy Attorney General- 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 executive branch and his authority for issuing the Authorization. + +## (U/Ffobo) Signature Of President + +' +: +" +The Authorizations were signed by the Presxdent fo]lowed by a place and date of signature. + +All but one-authorization was signed in Washingten, D.C. + +## (U) Other Signatures + +Under the phrase "approved for form and legahty," the Attomey General signed all but one of the-Authorizations. The other authorization and the two modifications were signed by the-Counsel to the President. + +## (V):Handwritten Note: + +; +NF) +The first 2 and thialas +29 Authonza'aons 'both modifications, 4 +have a handwrltten note signed by the: Secretary of Defense +(or Deputy Secretary of Defense) directing the NSA or the Director of NSA to execute the document. + +## Appendix C (V) Timeline Of Key Events + +This page intentionally Ieft blank. + +## (V) Timeline Of Key Events + +(U//#EY6) This timeline includes key events that occurred during NSA's implementation of the President's Surveillance Program (PSP). + +In addition to issuances of the Authorization, the timeline includes selected communications +'between NSA and Congress, the Foreign Intelligenice Surveillance Court (FISC), +' +. + +& +| Because the timeline ds limited to documented events and communicati + +2001 +4-0c6t-01 +1st Presidential Autherization signed +4-0Oct-01 +General Hayden briefs White.House (President, Vice President [VP], +VP Counsel, +VP 'Chief of Staff, White House Counsel). +55-0ct01 +NSA briefs Chalr and Ranking Member of House Permanent Select +Cominittee:on Intelligence (HPSGI), Chalrand Vice Chair of Senate Select +Committee on Intelligence (SSCI) +2:Nov-01 + 2nd Presidential-Authorization signed: +14-Nov-01 +NSA briefs Chairvend Ranking Member, HPSCI, Chair end Vice Chair, +S3Cli +30-Nov-01 +3rd Presidential Autharization sigried +4-Dec-01 +NSA briefs 'Chair. 'Senate Defensa Appropriatioris 'Subcommittee, and +Ranking Member, Senate Defense Appropriations Subcommilitee +5.Dec 01 +NSA briefs B Director: Muller +2002 +9-Jan-02 +Ath Presidentil Athorization sighed +11-Jan-02 +NSA briefs Department of Justice, Office of Intelligence Policy and Review +(DolJ, OIPR), James Baker +_31-Jan-02 +NSA briefs FISC Presiding Judge Lamberth +5-Mar-02 +NSA briefs Chair and Ranking Member, HPSCI, and Vice Chair, 8SCI +e +10-Apr-02 + NSA briefs Chair SSCI + +## Nsa Biiefs Chair, Hpsci, And Ranking Member Hpsci + +| | | | | | | Bth | Prasidential | Authorization | sianed: | +|-------------|--------|--------------|---------------|-----------|----------------|--------|-----------------|------------------|------------| +| NSA | briefs | FISC | Presiding | Judge | Kollar-Kotelly | at | the | White | House | +| 13-Aug-02 | NSA | Inspector | General | (IG) | cleared | for | the | PSP | | +| 10-Sep-02 | 10th | Presidential | Authorization | signed | | | | | | +| 11-Sep:02. | NSA | GC; | Deputy | General | Counsel | (GC), | Associate | GC | for | +| L | .and | IG.meetio | discuss | PSP | versih | | | | | +| 18:5p-02 | 1st | NSA | Due | Diligence | Meeting | | | | | +| Chair.HPSCl | visits | NSA | for | briefing | | | | | | +| 16-Dec-02 | NSA | IG | advises | General | Hayden | to | issue | "Delegation | of | +| to | "units | that | administer | the | project" | | | | | + +## 2003 + +8-Jan-03 + "13th Presidential Authorization signed +9g-Jai-03 + NSA briefs Chair and Ranking Member, HPSCI, Chairand Vice Chalir; +sscl +8-0t-03 +NSA-FBI-CIA conference at NSA to discuss PSP 'operations and customer +needs + +## 15-00T03 __20Th Presidential Authorization Signed + +| | | | | | | | | 1-Dec-03. | NSA-IG.'announce's' | & | review | of | N'SA'PSP'.operation | +|----------|-------------------|---------------|-----------|------------|--------|--------|-----|--------------|------------------------|--------------|-----------|-------|------------------------| +| 8-Dec-03 | NSA | 1G | asks | VP-Counsel | for | access | to | PSP | legal | epinions-and | is | told | that | +| & | request | shoild | come:from | General | Hayden | | | | | | | | | +| 9-Dec-03 | 21st.Presidential | Authorization | signed | | | | | | | | | | | +| 9-Dec-03 | 'lG | memo | asks | General | Hayden | to | ask | VP | Counsel's | permission | for | NSA | | + +## 2004 + +| | | | | | | 8-Jan-04 | | | mestto | discuss | the | PSP | +|---------------------|----------|--------------|---------------|--------------|---------------|-------------|--------------|---------------|------------|--------|-------------| +| 6-Jan-04 | NSA | briefing | to | DoJ | Mr.. | Philbin, | Mr. | Goldsmith | for | Mr. | Geldsmith's | +| orlentation | to | the'PSP | and | other | NSA | Signals | Intelligence | efforts | against | | | +| terrorism | | | | | | | | | | | | +| NSAandFRI. | = | . | | | | | | | | | | +| and-recent-changes: | at | NSA | | | | | | | | | | +| 14~Jan-04 | | | | | | | | | | | | +| 9-Mar-04 | General | Hayden | briefs | Director | of | Central | Intelligence | (DCI) | on | value | of | +| the | PSP | | | | | | | | | | | +| 10-Mar-04 | General | Hayden | briefs | White | House:Counsel | and | Chief | of | Staff, | Deputy | | +| DCI, | Deputy | AG, | &nd | FBI | Director | onvalue-of | the | PSP | | | | +| 10-Mar-04 | General | Hayden | briefs | Speaker | of | the | House, | Senate | Majority | and | | +| Minority | leaders, | House | Minority | Leader, | Chairman | arid | Ranking | Member, | | | | +| HPSCI, | and | Chair | and | Vice | Chair, | SSCI | | | | | | +| 10-Mar-04 | General | Hayden | briefs | Secretary | of | Defense, | DoD | Prinicipal | Deputy | GC | | +| 11-Mar-04 | 23rd | Presidential | Authorization | signed | | | | | | | | +| 11-Mar-04. | NSA | IG | and | Acting | GG | discuss | new | Authorization | signed | by | President's | +| Counsel | rather | than | the | AG | | | | | | | | +| NSA | briefs | House | Majority | Leader | | | | | | | | +| 12:Mar-04 | General | Hayden | briefs | House: | Majority | Leader | | | | | | +| 19-Mar-04 | Revision | to | 23rd | Presidential | Authorization | signed | | | | | | + +## S5Ci + +25-Feb-05 + General Hayden briefs White House Counsel and Counsel to Deputy +AG +1-Mar05 +- 30thPresidential:Authorization signed +) +"General Hayden briefs Director of National Intelligence (DNI) +23:May-05. + Two-level PSP clearance structure discontinued +1-Jun-05 + Discussions to seek FISC orders to authorize content collection begin with +'DoJOLC +14-Jun-05 _ 32nd Presidential Authorization signed__ +" 3-Aug-05 +Principal Deputy DNI Hayden briefs.new NSA/CSS Director General +Alexander on the PSP +10-Sep-05 + 34th.Presidential Authorization signed +14-Sep-05 + NSAbriefs Chair and Ranking Member, HPSCI, Chair-and Vice Chair, +13-Dec-05 +36th Presidential Authorization signed +16-Dec-056 +New York Times says that President secretly authorized NSA +_ +eavesdropping +on Americans +20-Dec-05 +DoD1G rciVe'ieler,-s'igned by 39 Congressmen, requesting a review of +the PSP. DoD IG faxes the letter +to the NSA IG on 10 Jan 06 +21-Dec-05 + NSA briefs DNI + +## 2006 + +3-Jan-06 +'NSA 1G and 'DoD 1G discuss letter from 39 Congressmen requesting +'DoD 16 review of tha PSP +NSA briefs nine FISC judges and three FISC legal advisors +9.Jan-06 +11-Jan-06 +NSA briefs Speaker of the House, Senate Majlority L eader, Chairof +HPSCI, Chair-and-Vice Chair, SSCI +NSA briefs Senate Minority +Leader, House-Minority Leader, Chair SSCI, +20-Jan-06 +37th Presidential Authorization signed' +27-Jan-06: +31'Jan~.0 +NSA briefs +Chair: +NSA briefs Speaker of the House and Chair, HPSCI +NSA briefs Chairand Ra nking Member, House Appropiiations +9-Mar-06 +NSA briefs Chair and-Vice Chair, SSCI, afid Members of SSCI Terrorist +Surveillance Program (TSP) Subcommiittee (Rgberts, Rockefeller, Hatch, +DeWine, Felnstein, Levin, Bond) with-SSCI Minority and Majority Staff +Directors, Senior Director for Legislative Affairs, National Security +Counsel, VP, AG, White House Counsel, and VP Chief of Staff +NSA briefs Mr. Bond, Member, SSCI TSP Subcommittee +10-Mar-06 +13-Mar-06 +NSA briefs. Chair, SSCI TSP Subcommittee, Members SSCI TSP +Subcommittee:(Roberts, Feinstein, and Hatch), SSCI Majority and Minority +Staff Directors, and SSCi Counsel atNSA +NSA briefs Mr. DeWine, Member, SSCI TSP Subcommittee at NSA +14-Mar-06 +38th Presidential Authorization signed +21-Mar-06 +NSA briefs FISC Judge Bates +21-Mar-06 +NSA briefs Mr. Levin, Member, SSCI TSP Subcommittee and Minority +27-Mar-06 +Staff Director at NSA +29-Mar-06 +NSA briefs Chairman and Ranking Member HPSCI TSP Subcommittee, +TSP Subcommittee Members (Hoekstra, Harman, McHugh, Rogers, +Thornberry, Wilson, Davis, Holt, Gramer, Eshoo, and Boswell), Majority +'General Counsel, Staff Member, and Minority General Counsel +7-Apt-06 +'NSA briefs Chairman of the HPSCI TSP Subcompittee; HPSCI TSP +'Subcommittee Members (Hoekstra, McHugh, Ragers; Tharberry, Wilson, +and Holt), Majority General Counsel, Staff Member, and Minority General +Jounsel at NSA +28-Apr-08 +NSA brrefs Ranking Member HPSCI TSP Subcommrttee Members of +HPSCl TSP Subcommittee: (Harman Wllson, and Eshoo), Majority: +Uns +G +eral Counsel at NSA +11-May-06 + NSA briefs Chair and Ranking Member Housg Appropriations Committee +' +Defense Subcommittee +16-May-06 + 39th Presidential Authorization signed +17-May-06 + Chair SSCI, Members, SSCI(Roberts, Hagel; Mikuilski, Snowe DeWine, +Bayh, Chamb(rss Lott, Bond, Levin; Feingold, Feinstein, Wyden, Warner), +SSCI Staff Member, SSCI Majority Staff Diractor, and SSCi Counssl +17:May06 + HPSCI Chair, HRSCI Members (Hoekstra, Harman, Wilson, Eshoo, +Rogers, Thornberry, Holt, Boswell, Cramer, LaHood, Everett, Gal!egly, +Davis, Tiahri, Reyes, Ruppe +be +er, +and Tisrnay) Majorlly General +24-May-06 + FirstBusiness Record's Order approved by the:Fle +5-Jun-08 +NSA briefs Ms. Feingold, SSCI Member at NSA +74dun-06 +NSA briefs-Ranking Meember, Senate Defense Appropriations +Subcommittes, and SSCI Staff Director +7-dun-08 +NSA briefs President's Privacy and Civil Liberties Oversight Board +9:Jun-06 +NSA briefs.Chair, SSC1, SSCI Members (Mikulski, Wyden, and Hagel), +$S0C! Minority Staff Director, SSGI Counsel, and SSCI Staff Directar +15-Jun-06 +NSA briefs Chair, SSC! and SSCI Members (Roberts, 'Mikulski, Feingold; +Bayh, Snowe, 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, SSC! Member at NSA +6-Jul-06 +40th Presidential Authorization signed +O-Jul-OG +- NSA briefs Ms, Snowe, SSCI Member and S8CI Counsel at NSA +18-Jul-06 +NSA briefs Mr. Chambliss, SSCI Member at NSA + +## _ 41St Presidential Authorization Signed 420D Presidentlal Authorization Signed + +20:Nov-06 + NSAbriefs Presidents Privacy and Givil Liberties Oversight Board +8-Det-06 +rd +and fifal Presidential Authorization signed +2007 +10-Jan-07 + 'Content orders approved by the FISC +{7-Jan-07 + AG letter to Congrsss: Presidential program brought under the FISC +1-Feb-07 +NSA briefs President's Privacy and Civil Liberties Oversight Board +1-Feb-07 + -Presidential Authorization expires + +This page intentionally left blank. + +## Appendix (U) Cumulative Number Of Clearances For The President's Surveillance Program + +iy This page intentionally left blank. + +## {U) Cumulative Number Of Clearances For The President's Surveillance Program + +This page intentionally left blank. + +## Appendix E + +(U) NSA Office of the Inspector General Reports on the President's Surveillance Program and Related Act ivities This page intentionally left blank:. + +## (V) Nsa Office Of The Inspector General Reports On The President's Surveillance Program And Related Activities + +ESHSHEThis appendix lists and describes +OIG investigation and review +reports of activity conducted under the PSP, also referred to as the STELLARWIND +Program, and related activities such as the Pen Register Trap and Trace (PR/TT) +Order and the Business Records Order. These reports are limited to activity +_conducted between 4 October 2001 and 17 January 2007. + +## (U) Oig Investigations - (U) Report Of Investigation Of Two Violations + +5N +Or_:fllelOIG issued a report on what it believed to be the first'two violations of Authorization, both.of which were unintentional. + +Both iricidents oeccurred, at least in part, because early in the Program the terms of the Authorization were so closely held that few, if any, operational personnel working under the Authority were permitted to see the Auithorization orits operative provisions. + +It was unreasonable to hold persong accountable for violating an order that they had not seen, when the. order was too comiplex to be easily committed to memory: Accordmgly, the OIG did not recommend d15c1p11na1y action, but did recommend that thie NSA Director issue formal wntten delegations of authority to the Signals Intelligence Director and specified subordinates so that personnel working the Program would know the precise terms-of the Authorization. Management concurred with the recommendations and made appropriate notifications. + +(U//FOUO) This report was sent to SSCI on 31 May 2006 +and'HPSCI on 2 January 2008. + +## . Foreigninteliigence Surveillance: + +issued a report on an investigation of a management breakdown that had resulted in unintentional filtering violations of the FISC Order. The Order permitted NSA to collect Intemet metadata from cornmumcatlons involving +. + +' +, L owever, no violations resulted from the collection of domestic communications. An NSA collection manager discovered the: +violations or +. The following day, the questiofiable collection was stopped and reported to the OIG +and the OGC. With the exception o the OIG +found no reason to believe that any violations resulted in the collection of L8, judement person information. The OIG reserved onf e +&' +Bl The OIG evaluation of responsibility for the incident led directly to the replacement of the Program Manager and to chanpges in Program management, leadership, and chain of commaid. + +(U/ /FOUS} This report was sent to SSCI on 31 May 2006 +and HPSCI on 2 January 2008 and was redacted at the request of the White House. + +None +of thef +I messages had been intentionally +collected, none had been analyzed, and none had been +reported outside NSA. + +(U/ /FOTO} This report was sent to SSCI on 31 May 2006 +and HPSCI on 2 January 2008. + +## {U) Oig Reviews + +14 May 2004 + (U) Need for Documentation and Development of Key +Processes (ST-04-0024) + +> +his OIG report concluded that a continuing deficiency in clear, written procedures governing the collection, processing, and dissemination of PSP material created undue risk of unintentional violations of the AutHorization. The report noted that Program officials had + +NSA OIG issueda ____ +| that +the OIG suspecte +ated outside the United. + +made progress in addressing some of these deficiencies, but found that. processes had not been fully documented in the form of management directives, administrative policies; or +'operating manuals. The NSA: O1G recommended that Program officials formally adopt rigorous, written operating procedures for the following key processes: + +o +Approvals for content collection by the appropriate +named officials +o +Reporting of violations of the Authority, similar to +procedures for documenting violations of Legal +Compliance and Minimization Procedures' +o +Evaluation of dual FISA and PSP content collection. +@ +Systematic identification and evaluation of telephone +mumbers and Internet identifiers for detasking. +(U/ HrEY6) Corrective action was taken in response to the four recommeindations. + +(U/ A=0Y0) This report was sent to SSCI on 31 May 06 and HPSCI on. 2 January 2008. + +## 13 Sep 2004 -Fs#Nf)-Need For Increased Attention To Security-Related Aspects Of The Stellarwind Program (St-04-0025) + +(U/ /FOUD) This OIG report disclosed weaknesses in Program secunty The Program was particularly vulnerable to exposure because it involved numerous organizations inside and outside NSA. + +(U/ /FOUYB) While the Program Manager placed a strong emphasis on personnel security, he did not take a proactive and strategic approach to physical and operational security. + +In particular, better use of the Program Security Officer would have helped to improve special security practices for handling Program material and strengthen operations security (OPSEC). + +(U/ /F6Y) The Program Manager and the Associate Director for Security and Counterintelligence concurred with the findings and implemented corrective measures. + +In particular, the Staff Security Officer was freed from other responsibilities and took a more active and effective role in Program security. + +Management did not conduct a formal OPSEC survey as recommended; however, steps taken by mariagement to +'implement OPSEC practices met' the intent of the original recommendation. + +(U/ /FEUO) This report was sent to SSCI 6n 31 May 2006 +.and HPSCI on 2 January 2008. + +## 21 Nov 2005 (Fshshine)-Review Of The Tasking Process For Stellarwind U.S. Content Collection (St-04-0026) + +TS//STLW +/ST +' +This report identified material wealcne_see's; in the tasking and deetasking process under the PSP.. The process to tasl and detask-telephone numbers for content collection under the Program was intherently fragile because:it was based on e-mail exchanges and was net automated or monitored. + +Y TEF +SR +) The OIG,eXa.mined-telephone numbers and Internet idertifiers approved for content collection on the date in November 2004 when the audit began and identified the following types of errors: +involved under-collection; identifiers were not put on collection quickly enough or were not put on collection until the OIG discovered the errors. + +involved unauthorized collection caused by a typographical error. + +involved over-collection; they were not removed from collection quickly enough. + +'}i record-keeping errors in the Program''s tracking database n thq of unauthorized collection caused by a typographical error, NSA +personnel did not review the collected information before destroying it, nor did NSA issue any report based on, or +~rwise disseminate, any information from the i | of untimely detasking. However, without a o1fotw Y +robust and reliable collection and tracking process, NSA +increased its risk of unintentionally violating the Authorization. NSA also increased the risk of missing + +| valuable | foreign | intelligence | by | failing | to | task | telephone | +|------------------|------------|---------------------|-------------|--------------|--------------|------------|--------------| +| numbers | and | Internetidentifiers | in | a | timely | manner, | | +| (U/ | fPOEH) | NSA | 0IG | recommerided | that | all | errors | +| resolved, | that | specific | procedures | be-adopted | to | prevent | | +| recurrences, | and | that | identifiers | tasked | for | collection | be. | +| promptly: | reconciled | with | identifiers | approved | for | tasleing, | and | +| repeated | every | 90 | -days. | Management | 1mp1ementcc1 | the | | +| recommendations. | | | | | | | | +| (U/ | AeB0) | This | report | was | sent | to | SSCLon | +| and | HPSCI | on | 2 | January | 2008 | and | was | +| request | of | the | White | House, | | | | + +## 31 May 2006 (Fsh#Shnf} Review Of Compliance With Authorization Requirements For Stellarwind U.S. Content Collection (St-04-0027) + +| | | | | This | repoit | determined | that, | based | +|-------------|-------------|------------------|-----------------|-----------------|-------------|---------------|-------------|------------| +| ona | sta'ustlcal | sample, | Program | officials | were | adhering | to | the | +| terfis | of | the | Authorization | and | the | Director's | delegation | | +| thereunder; | that | tasking | was | appropriately | approved | and | | | +| duly | recorded | under | the | Authorization; | and | that | tasking | was | +| justified | as | linked | to | al-Qa'ida | or | affiliates | of | al-Qa'ida. | +| report | recommended | improvements | in | record-keeping | | | | | +| practices. | | | | | | | | | +| ~S4HNF)-Due | to | a | lack | of | sufficient | and | reliable | data, | +| OlG | could | not | reach | a | conclusion | on | the | tasking | +| process | for | two | PSP-related | collection | programs, | The | OIG | | +| recommended | that | management | responsible | for | the | affected | | | +| programs, | design | and | implement | a | tasking | and | tracking | | +| process | to | allow | managers | to | audit, | assess | timeliness, | and | +| validate | the | sequencing | of | tasking | activities. | Management | | | +| agreed | to | install | automated | tracking | of | tasking | and | | +| detasking. | | | | | | | | | +| TS//SH-NF- | Although | the | collection | architecture | was | | | | +| designed | to | produce | one-end-foreign | 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. | | | | | | +| (U/ | /EeH6) | Corrective | action | has | been | completed | for | one | +| the | two | recommendations. | | | | | | | +(U/ /FEBO) This report was sent to SSCI on 31 May 2006 +and HPSCI on 2 January 2008 and was redacted at the +fequest of the White House. +11 Jul 2006 + +## Fi&?Sb%Fifiupplemental Report To Review Of Compliance With Authorization Requirements. Fors:Tellarwind_U.S; Content Collection (St-04-0027.01) + +S +ST +S-S} +After issuing the original report, +the NSA OIG conducted further research to determine +whether Program officials were approving content tasking +requests based solely +on metaddta analysis. Using the +statistical sample in the original audit, the OIG found no +instances of metadata analysis as the sole justification for +content tasking. +In all cases tested, there was corroborating +evidence +to support the tasking decision. +(U//'FO'B'G';*Thm report was sent to SSClon 13 February +2007 and HPSCI on 2 January 2008. +5 Sep 2006 + +## Hamf)-Report On The Assessment Of Management Controls For Implementing The Foreign Intelligence Surveillance Court Order: Telephony Business Records (St-06-0018) + +PSHBTEY +] +F +On 24 May 2006, the telephony metadata portion of the PSP was transferred to FISC Order BR:06-05, In re Application of the Federal Bureau of n Order Requiring the Production of Taggible +-communications Providers] Relating tof +| The Order authorized NSA to cole'c and + +retain telpfigny metadata to +protect & +. +On 10 July 2006, in a memorandum with the +subject FISA Court Order: Telephony Business Records (ST-06- +0018), the NSA OIG issued "a report to the Director of NSA +45 days after the initiation of the activity [permitted by the +Order] assessing the adequacy of the management controls +for the processing and dissemination of U.S. person +information." This report was issued with the Office of the +General Counsel's concurrence as mandated by the Order. +//NE) +The "Report on the Assessnient of Managemernt +Controls for Implementing the Foreign Intelligence Surveillance + +Couirt Order: Telephony Business Records (ST-06-0018)," +5-September 2006, provided the details of the findings of the +10.July memorandum and made formal recommendations to management +- +* Management controls: governing the processmg, dissemination, data security, and oversight of telephony metadata and U.S. person information obtamed under the Order were adequate and in several aspects exceeded the terms of the Order. However, due to the risk +'associated with the collection and processing of telephony metadata involving U.S. person information, the NSA OIG +recommended three additional controls regarding collection procedures, reconciliation of audit logs, and segregation of duties. + +## (Tshshnfy-Collection Procedures: + +. Durmg an O1G review of collectlon procedu o data shotild have been suppressed from the incemirng data flow.. Immediately, management blocked the data from analysts' view. + +Further, worklng with the providers, Program management completed suppression ofthe suspect data on 11 October 2006 and agreed to implement additional procedures to prevent the collection of unauthorized data. + +## Efshshnfy Reconciliation Of Audit'Logs + +(@Sf-/S%'-NF)Management controls were not in place to +verify that telephone numbers approved for querying were the +only numbers queried. Although audit logs dociimented tle +queries of the archived metadata, the logs 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 Programimers. + +## ~{Chmeh:Ack Of Segregation Of Duities + +~{E4/14F The severt individuals with the authority to approve +queries also had the ability to conduct gqueries under the +Order. Standard internal control practices require that key +duties and responsibilities be divided among different people +to reduce the risk of error and fraud. Althouigh Program +management corcurred with the finding, it could not +implement the recommendation due to staffing and +operational rieeds. +As an alternative, Program management +agreed to'develop a process.to monitor indeperidently the +queries of the seven individuals, This action plan was +contingent on the development of usable audit logs +recommended above. +(U/ fFOYe) Corrective action has been completed for one of ' +the three recorhmendations. +(uy I/_FG"&G);\This report was sent to SSCI on 13 February +2007 and HPSCI on 2 January 2008. + +## 20 Dec 2006 {(Sh#Nf)-Summary Of Oig Oversight 2001-2006 Stellarwind Program Activities (St-07-0011) + +{S//NF) On 20 December 2006, the OIG issued a report +summarizing OIG's oversight of the STELLARWIND Program +after five years of implementation. +' +(U/ JFE&E6) This report was sent to SSCILon 13 February +2007 and HPSCI on 2 January 2008 and was redacted at the +request of the White House. + +## St/ Assessment Of Fanagement Controls To Implement The Fisc Order Authorizing Nsa To Collect Information Using Pen Register And Trap And Trace Devices (St-06-0020) + +FSHSH-AE) O +he OIG reported that the +management contr +v +"the collection, +dissemination, and data security of electronic +communications metadata and U.S. person information +obtained under the FISC Order authorizing NSA to collect +Internet metadata using PR/TT 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 U.S. persont information; +additional controls were needed for processing and +moniitoring queries made agairist PR/TT data, documenting + +overmght activities, and providing atinual refresher training on the terms of the Order. + +U/ /F@H@) Corrective action has been completed for two of the six, 'recommernidations, to SSCI. + +(U7 /FOUO}T +and HPSCIL & + +## 5 Jul 2007 ~(Fs#Sh/Mfrdomestic Selector Tasking Justification Review (St-07-0017) + +(U7 /FEYO) The OIG conducted this review to determine whether tasking justification statements were supported with. + +intelligence information consistent with sources cited in the justifications. + +The OIG.identified some justifications cotitaining errors, but there was no pattern of errors or exaggeration of facts or intentional misstatements. + +(U/ /FOYO) This report was sent to SSCI on 28 January 2008 +and HPSCI on 28 January 2008. + +## 30.Jurie 2008 Advisory Report On The Adequacy-Of Stellarwind Decompartmentation Plans (St-08-0018) + +At the request of the SID Program Manager for CT Spemal Projects, the OIG assessed tlie adequacy of NSA's plans to remove data from the STELLARWIND comipartment, as duthorized by the Director of National Intelligence. On +30 June 2008, the OIG reported that NSA management had a solid fouindation of plannmg for decompartmentation. + +In particuilar, the content, "communication, - and assignment of supporting plans were adequate to provide reasonable assurance of successfully removing data from the STELLARWIND compartmerit, while complying with laws and authorities. Management was also diligent in assessing the scope and complexity of this undertaking. Although the OIG +made no formal recommendations, it suggested improvements to develop more detailed plans, set firm milestones, and establish a feedback system to ensure that plans were successfully implemented. + +(U/ FoH6}-This report was not sent to SSCI or HPSCL + +## Appendix F (U) Presidential Notifications + +o o= +S +< +=) 2 +B~ +oy This page intentionally left blank. + +## (U) Presidential Notifications + +4 +STEY +, Ry Executive Orders 12333 and 12863 require intelligence agernicies to report to the President, through the President's Intelligence Oversight Board; activities they have reason to believe may be unlawful or contrary to executive order or presidential directive: Knowing that Board members were not cleared, however, the NSA Director or Deputy Director reported the following violations. of the Presidential Authorization and related authorities to the President through his Counsel, rather than through the Board. Each rotification was approved if not actually drafted by OIG. Somee of the notifications werg not the subject of the OIG reviews or investigations discussed in Appendix E. + +(U) Date +v Summ'ary of Notification + +This page intentionally-left blank. + +## Appendix G + +(U) United States Signals Intelligence Directive +SP0018, Legal Compliance and Minimization +Procedures +This page intentionally left blank. + +# National Security Agengy Central Security Service + +Fort George G. Meade, Maryland + +# Signals Intelligenge Directive 18 27 July 1993 + +[NCLUDES CHANGES 1 and 2 +See Latter of Pramulgation far instructions on reproductian or release of this documen:. + +This page intentionally left blank. + +# National Segurity Agency Central Segurity Service + +Fort George G. Meade, i\flaryflflmd + +# O7 July 1993 United States Signals Intelligenge Directive (Ussid) 18 Legal Compliangce Amnd L*! Inimization Pf?.B Cedures - ' + +## Letter Of Promulgation + +(Uy This USSID pre sCribes palicies and prageduras and assigns: responsiblliies to-enhsire that the missiong and functions of the. Uni ed Staias BIGINT Systam (USSH) are conductad s mannar that safsguzrda-the-constitutinna) rights ol U.S. persans, +{Ly This USSID has oeen cemplataly rewritten to maka it shorer and sasier lo undsestand,. + +It conEttutes A summary of tha laws and reguiations directiy affecting USSS5 operations, AllUSSE persannal wha collzst, progess, retain, o dissaminale marm*hmn ta, 1rom graboul U.S. peratns or persons in'the Uriiied Stalas must be familiar with hscontants. + ++FEHer This USSID supersades USSID +18, dad USSID 18, Annax A {distributed separataly to sslected reciplents), both of which are dated 20 Cctober 1981, anrf must now be dgstroyad. + +lefy DlRNuNCHCSS (USEID Marizager if ihis edifion of USSI0 1874 dEalfQ{"'fl hoeause of an gmgrgency asion; +otharvise, raquest approval fam DIRN ACHOSS bafare destroying ihis USSIO, +~HESUGY Aeleass or akpasure of this dosumant o centractors and gonsutants vithoul approval rom the USSID Mumaghr is pruhumt.:d Instruchicns flpp'rc'dl:.lF to relaase oraxposure of USSID to contractars.and sonsutanty may be found in USSIDN 19, ning his fS!D shoutd ba addressed 10 the Cilics of the +-92439'9}- Questions and cammsns Ganaral Counsel, MSACSS, NSTS 953=-3 +Vice Admiral, U.S. Navy Diractor ik, i g itentionaily lft +This + +## Change Register + +| , | CHANGE | ENTERED | +|----------------|-----------|------------| +| Na | | | +| Date | | | +| Authority | | | +| {Msg | | | +| Cite/ | | | +| 3G, | | | +| Hard | | | +| Copy | | | +| {HCH | | | +| Date | | | +| By | | | +| { | | | +| 2800TE7] | | | +| HARDGOPY | | | +| CHANGE | | | +| 280CTaY | | | +| | | | | +| RS | | | +| 2 | | | +| 1102088 | | | +| ] | | | +| POZT-0307-88, | | | +| 1118007 | | | +| Dec | | | +| 98 | | | +| 11Decld | | | +| | | | | +| WF | | | +| 12 | | | +| 1Decdd| | | | +| PO211-D306-98, | | | +| 1118402 | | | +| Deg | | | +| 98 | | | +| {correction | | | +| lo | | | +| abave) | | | +| 11Dece8 | | | +| | | | | +| WF | | | +| | | | +| i | | | +| 3 | ) | Lo | +| | | | | | +| | | | | +| ; | | | +| ; | | | +| ,,,,,, | | | +| - | | | +| - | | | +| : | | | + +This page intentionally left blank. + +## Table Of Contents + +SECTLO%\HPHEFACE +1 +SECTION 2= REFEAENCES +L 1ot aeivnrrsdsrarrarnssmrasasiasreedncisns orsarisnesaos +1 +[aY) +SECTION B POUGY + 1 pesavssevsserneennriieinsnssinsimesianimacassnsa i +SECTION +4 = COLLECTION +. uuinrerreceamnnaesseasasasstianramssesmiasicns +ot +- +B2 +TMm +a. Foraign ntedigance Suveillanse Court ARRIOVEE Lo vive s +i +ceivanans +b. Attornsy Gereral APBIOVE] +uvv e +v vttt i +e e +2 +, DIRMNSAICHESS APProval +<, iveerriscemsaomesrnien +ooy irosranssas +2 +d. +Emisrgency SIUAHORS +v vvs +e rvvinsiemmimeians +s +aat s, +3. +@ +ANNUA] FBROMS +4 +a et rs e +s +u st +e arrarivas it +& +4.2.F +P +T L L +AT +4 +4:3. Incidsalal Acquisition of U8, Perscn [Alormation +. .viciimeevsniiiin o +4 +4.4, Nonresident Alian Targats Entering the United States ..., +vin v +5 +in +.5. U.S, Parsen Targels Entering the United States .o ooovirnno s Y +4.8, Fequestato Targst UG, Persons ...voavvieianns e +e +A +] +37 DIreehOm FINGIG + oo +v i +e +et +v +e +ey +e +5 +4.8 DISHESS BIENMAlE G +e +i +ke +s +s +e +e +e +5 +4.8, COMSES Monitoring and Security Tesling of Automated Infermation Systems +.. +i + +## Section 5~ Progesshng + 1Ty Vt Iarrsiis Crstiaeomrriainsisesenaesnian + +@ +()] +E.1. Usze of Selaction +Terms Durng Frocassing +- v ovrvirciiaiansarrasns +5.2, +Annual Beviewby DDO ... +fi +o +n" +w2 +Forvarding +of Inlercapted Matsrial +... +ciciiii i +c +e +=l +Iu +. Noniaraign Communications +. oveve cive i ieomvieernanranees e +om +a. Cornmunications between Parsons in the Uniled States +..o +v vin i +7 +by, Communications batween U.S, Parsons ... e v d e +7 +c. Communisations knvolving an Officer or Employes +ot the U3, Govarnnmeant +oo +o .- S S +7 +ST += 2ere" o111 +1 - +D +R +L EE TP EERRR TR TR - +7 +SECTION +G =RETENTION ........ Creereian e +d Ea +e s +ek ee s +ew ey S +e +h btk +Ry +e +g +6.1, Qetention of Communications +to, from, or About LS. PEISORS +.+ +uvenyruan.- . +8 +a. WUnenciphgrad Communications; and Communications Necessary +to Maintain Technical Data Bases far Cryptanalylic +or +Traflic-AnAYC PUFBOSES wecuriveciin +i iucrsiinsersrsesvryassinnonsee +8 +b, Bommurications +Whilch Could be Disseminated bnder Section 7 +.. oivwiiies +8 +B.2, ACCESS v.vvrnnns +8 +SECTIQN 7 - DISSEMINATION .....ov +e et esmreenea O +e teaeneas +2] +7.1, Foous of SIGINT Reparts +oo eennoviyennn- e +& +7.2, Disseminatien +of U.S, Person identities . o.ovaennes, +9 +A +CONSEN, +et v aiEii v et +aehn +9 +b, +Patlicly Avallable Information ..o +i e +iiee e b beniaane . +a +o, +Information Mecassary to Undarstand or ACEESS :v.vvr +v vaarvervrsesaaaas +9 +7.3, +Aaproval AUhOIZE .. +raa e +e R +10 +3. DIRNSACHESE +v iivieieirieannns e e R . +10 +B, FialdUmiiS +v oo +ieierevecvnare P +, +0 +o DDO and Designess +o ooovenn. .- e i +r e +tas +b +74 Privileged Communications and Caminal Astivily .o +iiaenniiiincc +e, +10 +7.5, Imprager DISseminaiion +... +vieer e N +10 +SECTION & +RESPONSIBILITIES ... .o S Perbetberia +e Cheaians +H +8.1 Insnector Genaral L. e SN +11 +B2, Ganeral Counssl ov +i verinienin. s R +11 +8.3, Dapuly DiresorforOgerations ... ..o ieve +o en e Ceeian +i2 +4. +Al Elementzofthe USSS ..., e ey +15 2 +SECTION +9 - DEFIMITIONS +. ... e et e +e +e +e e +eas . +12 + +## Ammex A - Procedures Implementing The Foreign Intelligence Surveillange Act (U} Vnevieiinennns O E + +| | | | APPENDIX | 1 | - | STAMDARIZED | MINIMIZATION | PROCEDURES | FOR | +|-----|------------|---------------|-------------|---------|------|----------------|-----------------|---------------|--------| +| M5A | ELECTRONIC | SURMEILLANGES | ., | ...viv. | .. | e | e | A-i | N | + +ANMEX 8 - DPERATIONAL ASSISTANCE TO THE FEDERAL BUREAU +D I +T +I +R +OF INVESTIGATION (U} +. + +v ciivnniarmmens U8 AND ALLIED MILITARY +ANMER G M;SIGNALS}-lNTELLEGENGE'EUPP,@flT 70 +EXERCISE COMMANG AUTHORITIES (U +... e iac i Vhamaeane P +AMNEX B~ TESTING OF ELEGTHOMIC EQUIPMENT (W) +o vvoeoriiivivinna- e AMMEX E - SEARCH AND DEVELOPMENT OPERATIONS (U vuvsnnecevinnnnianeannss ANNEL F LLICIT COMMUNICATIONSAGY ... ..... S +PG +ANNEX +G ~ THAINING OF PERSONNEL IN THE OFERATIQN AND USE OF BIGINT +COLLECTION AND QTHER SURVEILLANGE EQUIPMENT () ..ovvniviorians e ANMEY H = CONSEMT FORMB{U) ..o vvnaenanass ANNEY +| = FORM FOR CERTIFICATION OF OPENLY-ACKNOWLEDGED ENTITIES{3=0801 +SRR ER += PRGOEDURES +FOR MONITORING RADID COMMUNICATIONS OF +SUSPECTED INTERNATIONAL NARCOTICS TRAFFICKERS f8~66ey iy to setented racigients) +D +T +I +R +R +dn +(Issuad separate Lt leat cfally Lol 1 Tlanl 3 +i + flg';' +Thiy T +S + +AWK TRY +% +OV +o) +. + +I ls + +## Legal Compliance And Minimization Procedures (V) Section 1 ~Prefage + +1.4, +{U) The Fourth Amendinent to the Unitad States Constitution protecis afi U.S. persons anywhare in the world-and afl persons within the United States {ram unreasondble searches and seizlites by any passon or agercy acting on behall cf the U.S, Govarnment. The Suprame Court has rled thal the intercgpiion ot slagtronic communications is a ssarch and selzure within the mearing of the Foutth Amendment, It is thergiore mandatary that signzls intalligance (SIGIMT) operations be conduciad: pursuaEnt to prooeciuras whish meat (s reagonablaness requiramesnts of the Fuurh Amendment. + +1.2, +(U} Ih daterntining whather United States SIGINT System (USSS) operations are "rezsonetis," +il {s necassary to batancs the U.8. Government's need for forgian intelligence Information and the privacy irmarests of parsons protected by the Fourth Amendment, Sbriking that balancs has conswngd much tima and effort By all branches of tha United States Governmant, The cesults of that &lfort are reflecied in tha referencas listad in Section 2 belaw. Together, thass taferences. requira the minimization of U.S. person Infeematian collasted, processed, ratained or dissemimated by the USSS. The purposa of this documant i to implameant thesa minimizalion renuiramants. + +1.3, +(UJ) Severalthemas mn throughaout this USSID. The mostimportant is ihat intsifigence opersiions andthe protaction of constitutional rights are not Incompatitite, It1s not necessary to dany legitimate {oreign inteliipzace collection Of SUDPress leghimate farslgn inteliigence information to protact the Feunh Ameacinent rights of LS, parsons. + +v4, +(J) +Finally, thase minimizalen procedures implament the constitutionzl princigls of weaasgnablensss" by giving ditersnt categorles of individuals and entities different lavals of protestion, These levels rangs from the stringent protection accorded U.S. citizans and 'permarent resident afiens in the United States to provisions relaling to foreign diplomats in ths U.S. Those diffierences raflzctyet anatier main theme of thesa procedures, thatis, that the focus ol all fareiqn inteligence operations iz oo foraign srities and DErSONS, + +## Segtion 2 - References 2.4, (U Raterences + +) +01, et seq.. Forgign Intelligence Surveillance Act (FISAY of 1978, Pulilic Law + + +(33 +5 +- +'(n . +w +No, 95-511. + +b +Exeoutive Order 12333, "United States intelligence Activities." datad +3 Dscember 1931, +o Dal Directive 5240,1, "Activities of Dol intelligencs bompanmm that Affect U8, Paraons;! + +dated 25 April 1938. + + d. NSA/CSS Dirsclive Mo. 10-30, "Pradedures Governing Aclivities. + +of NGA/CSS that Atfest U8, Persons, dated 20 Septamber 1990, + +## Section 3 - Policy + +3.1, +{U)yThe poligy of the USSS is to TARGET or COLL ECT only FOREIGN COMMUNICATIONS." +The USSS wilt not miem.ona)l;.' COLLECT cammunications to, from of about U.8. PERSONS or p2rscns or entities in the U.S, excagt as sel forth in tHis USSID. + +If tha USSS inadvertently COLLECTS such communications, it will process, retdin and dissaminata tham anly in accardancs with this USSIO, + +## Section 4 - Collection + +il are Lno wi to beta, from or about 3 +PE'>SO" +. + +- +. + +. + +ilinotbe intentionally intafeeptad, or SclEChdmeUjb tha use U1 A oELEL T oM TEHM E"(u-'pl L. + +t'm tolioving instances: +& +With the approval of the United States Foreign Infelfigance Survellance Court under tha gongltiens oullingd in Xneex & of jiis USSID, + +b. +With the.approval of the Atierngy Ganaral of the Unlled Statas, if: +{1} +Thz COLLECTIOMs directad against tha follawing: +{3) +Commuricatlions ta or from LS, PERSONS oulgida the UNITED STATES, ar +(M +__International cemmunications to, from, +oo + +Communications which arz not to or Irerm but mefely about U.S. PERSONS +(whergvar looatedy. + +{2} + Thapersonls an AGENT OF A FOREIGH POWER, and +{3} +The purposze of the COLLECTICN is to acquite signilisant FOREIGN INTELLIGE} IGE +whormigiian, c. + +With tha approval of the Directar, Naticnal Securily Agercy/Chisf, Canleal Security Sarice +{DIANSA/CHISS), 50 long as the COLLECTION nesd not be apgraved by the Forsign Intetligance Burveifanes Court or the Attamey Ganeral, and +(1) +The person nas COMNSEMTED +lo the COLLECTIOMN +by exsculing onz of the GONSEMT torms containad inAnnsg H, or +* Capitalized words in Sections 3 through 9 are defined tarms ir Baction 9. + +(2) +The person is reasonably believed ta ba held captive by & FOREIGN POWER or group angaded in INTERNATIONAL TERRORESM, or loor +| +14) +The COLLEGTION is dirested against EEEESEEEIIEEEREE +batween a U.5. + +PERSON in the UNITED STATES and a foreign entity outside the NITED STATES, the TARGET is tha foreign entity, and the DIBNSA/CHCSS +has approved the COLLECTION in accardance with Annax X, ar miployed o ific (arms of o ansd W +and facshnlla. + +A +{5) +'Technical devices (s:0.50 +it acquisition by lhe US3SS +to communicel sommunications used by the TARGET (sl he COLLECTION +is dirscted against ] +- +communigations with one COMIUNIGANT +In- tha UNITED STATES, and fhe TARGET of the COLLECTION +is +: + +(a) +A non-U.5. PERSDN igcated outsida the UNITED STATES= +(b} +- +(6) +Copies of approvals granted by the DIRNSA/CHEAS undar \hase provisions will ba retzined in tha Office of General Counsel far raviaw by the Attornay General, + +## . Emargency Siualicns, + +(1) +In emergency siluations, DIRNSA/CHCSS may authorize the COLLECTHOM +of Information to, feoim, ar aboul 2 U.S, PERSOM wha is oulsida the UNITED STATES when s2curing the priar approval of Ihe Alicrney General i5.not aractioat becauss: +(a) +The tinte ranuirsd to obain such approval would result in the lass of sigaificant FOREIGH INTELLIGENGE and would cause substantial harm o the national securkiy +(b) +A parson's life or physical safety Is reasonably bafievad io be in immadiale danger. + +(} +Tha physical security of a dafense installation or goveenmant groparly Is reasonably belizvad to be in immediatz daager. + +{2) +In lhose cases 'whare the DIANSA/CHCSS authorizes emargancy COLLECTION, except for actions takan under paragraph d.{1}{b) zbave, CHRNSA/CHCSS shall find that thees is probable cause that the TSRGET mests one of the following critardas +(z) +A parson who, for or on behalf of 3 FOAEIGN POWER, is engagad in clandasting intaligenss activitizs (Including covert activitiss intended to afect the political or governmental prcess). + +sabotags; or INTERNATIONAL TERRORIST activitles, or aclivilies in greparation for INTERNATIONAL +TERAQRIST aclivities; er who.canspires wilh, or knowirigly aids spd abets a parsod engading . sueh activities. + +(b) +A person who is-2n officer or emplayse of a FOREIGN POWER, +{o) +A parson unlawlully acting for, or gursuant to the dirsction of, a' FOREIGH +POWER, The mera fact that +@ person's activities. may henefit or furliter the aims of +2 FOREIGN POWER is riot endugh ta bring that person Under this subaaction, abaent evidende that the person is taking direction trom, ar acting in knowing concar swiih, the FOREIGN POWER. + +() +ACORPORATION or othar entity that is ownad sonfralled diractly or indiracily by +& FOREIGN POWER. + +{e) +A psrson in contact with, or asting Ir collaberation with, an intaliiganes or security gardce ul a jorgign pawer for tha purpose of prO"iqu access fo information ar matarial ciassified by the Unit d Stawss 10 which such.persen has acoess. + +(3} +In alf casas where emergency collsetion le authorizad, the following sleps shail i laks +(& +The Gzaacal Counsel will Se notiied Immadiately that the COLLEGTION has started. + +{b) +The Ganaral Counsel will {nitiate Immeadiate efons io obtain Attorngy General approval tocomtinte Ike eollection. If Aliorney Genaral approval [s not obtained within saventy bwo tours, the LGLLCuTID:J will b terminated, If the Attarngy General agproviss the COLLECTION, # WAy continu & tar live peiicd spacified In the ggoraval. + +. + +Anmyal rapors (o the Atomey Gensfal are required for COLLECTION conductad under parznraph'* 4.0.6.(3) and (4. Responsible anabytic oificas will provide such regorts throlgh the Deputy Wiracior for Operations (0OD) and the General Counse! 16 the DIRNSA/CHCSS far transmitial ta the Atte itey General by 31 Jarwary of each year, +(U} +Iniarmation fa, from or about U.S. + +PERSONS acquired Incidentaly as a resull of COLLECTION directed against appropna( FOREIGHM +IMTELLIGENCE TARGETS may be ratained and pracessed i accordance wilh Saction 4 and Sactiun 3 of s USSID. + +## 4.4, 6-6603 Nonresideat Alfiert Targets Enlering The United States. + +a, If the communications of anoriresident afien located abroad ace peiig TARGETED and the USSS laarms that the individual has entered the UNITED STATES, COLLEGTION +may continue for a peried ot 72 hours provided that the DIENSACHESS Ts aduised immedialely and: + +() +Immediate effcrls are nitfated to abtain Attorney General apgroval, ar +2) +& determination s made wilkiin the 72 hous pedod that ih +b, I Atomey General approval is obtained, the COLLECTION may contintz for the fength of time spacifing In'the aporaval. + +g, W +iisdetermined thal +' +,: COLLEGTION +may continue at The digoration OHhe-qperafional:ramt. T +v +- LoriAllame "eefai approval is ot obtained within 72 +1 Attorney Ganeral approval is hours, COLLECTION must ba rrvinated] +Dtabiad, or the Individual lsevas the UNITED STATES. + +' + +## 4.5 5-666) U.S, Person Targets Entering The United States. + +_ +a. 1| communicatians 10, from or atiout 2 U.S. PERSON focated owside the UNITED STATES +ze being COLLEGTED +under Allomey Gengral approval desceibed. in- Settion 4.1.b. 200va, the COLLECTION muststop when e WSSS learns (hat the individual has eniered the UNITED STATES. + +b. + +While'the individual Ts in the UNITED STATES, COLLECTION may be casumed oniy wite Ing approval of the United States Forsion Inteligence Survailance Courtas descrivad in Annex A, +;5 PERSONS. + +All proposals for COLLEGTION against U.S. + + +must ba submitied througlh +46, +1o PERSONS, theDOO and ths General Counsel to the DIRNSAICHGS +S 107 [oview. + +4.7, E-886r Direction Finding, Use of dirgstion finding solaly to daterming the. locatioh of a trarsmifter losated cutside of the UMITED. STATES does not genstituts ELEGTROMIC SU RYEILLANGE ar COLLECTION svah il dirzctad at rangmittas Leligwd 1o ba ussd by UW.5, PEABOMS, Unlzss COELEGTION +aftha communications is ofhanvise ay!lmrize-d undar thase procedures, the cantgnts of communizailons io vihich a U.S. PERSOM isa perly mpritored in the course af dirastion linding may ooly b uged to Idecify the wansmitier, +48, +{U) +Disiress Signals. Distress signals may ba intzntionally collected, processed, retained, and dissaminated without regaed ta tha restrictions containad in tnis USSID. + +A48, +(Uy COMSEC Wonitoring and Secutity Testing of Automated Information Systesss, Menitoring for communications security purposes must be conducted with the consent of the person bsing monitored and i accordance with {ha procedures established in National Telecammurications and Infgrmation Systems Sacurity Dirgctive 800, Commurications Secusity (COMSEG) Monitoring, dated 10 April 1990, Moaitoring far communications ecumy purposes s not goversed by this USSID, Infrushva secumy testing fo ass seerity vulnerabiftia s in automaiad information systems fikawise is not governed by this USSID, + +## Section 5 - Processing + +.3, 8-Ge0r Ustol Selection Terms During Processing, YWhen a SELEGTION TERM s Intanded to INTEACEPT a ommunication on:the-basisof the sortaiit of the: +communication, ar because a communication ls erciphered, rather than on the basis of the ldantity of the CORMUNICANT -orthe factihat the communication mentions a particular individual, the following rules apply: + +## Intelligenge Will I Obzainm'I By Use Of Su-H Selection Tenm + +b. No SELECTIOM TERM that has resuttad in the INTERGEPTION of a signitican! numbiar of T comraunications 1o o frors such parsons or entities may ba used unlesy there is raascn o balisve tha FOREIGN INTELLIGENCE will ba obtained, SELECTION TERMS +Ihat hgve resolted or are reascnably: lkely to result in the lN'ERuFPTlQN of communications ta or from sush persons ar entities shafl be designed to defeat, 12 the graatest extent practicable-under 1hs aircumstances, the INTERCEPTION of those x:c:mmunicauons wihich o nat cantain FOREIEN INTELLIGENCE. + +## 1] 2, 48-568Y Annual Revigw By Deo. + +a. + +Al SELECTION TER! WS that ard reasonably likely +(o rasull in the INTERCEPTICH +of communications o or frem & LS FERSON or lerms that hava resulted in tha INTERCEPTION +of a sigaificant number of sich cammunicalf&ns shall be reviewed.annually by the DDO or a designas. + +b The purpose of the review shall bs to determine whather there s reason to belisve. (al FOREBKEM INTELLIGENGE vill ba oblainad, of will consirue +1o b3 abtainad, by tha use of thasa SELEGTION +TERKS. + +, Acopy of the results of the raviaw will ba providad to the Inspectar General and the Ganaral Gounsal, +5.3. E-EE8) Farwarding of Intercepiad Material, FOREIGN COMMUNICATIONS callecied by the +1S5S may be lovwarderd as intercepted to MSA, intarmeniate procassing facilities, smd collaberating centers, + +## 8.4, -Gsy Monfargfgn Communications + +a2, Communications behween parsons I the UMITED STATES. Privala radic commusical ons solEly batwean persans in the UNITED STATES inadverienlly intarcepted during the COLLECTION +of FOREIGN COMMUNICATIONS wiil be prompl[,' deslroyed unless thg Atiornay Genarsl determninas thal the contents indidate a threat of death ar serigus badiy harm io any person. + +b, Cammunications. betwaen U.3. PERSONS. + +Communications solely batween +.S, PERSONS wil be treated as follows: +(U +Commupications sofely betyean U.5, PERSONS inadvertently intercepted during the GOLLEGTION of FOREIGN COMMUNICATIONS +will be destroyed upon recognition, if technitally possible. + +excepl as provided in paragraph 5.4.9. beiow. + +_ +{2} +Wotwithstanding the preceding provision, coyptolegic. data +(e.g., signst and entipherment inforrmation) and tectinical communications data (e.q., circuit vsage) may be extracted and retained: +o thoss communicalions if necassary to: + +{aj +Establish of maintain intercept, or +{by +Winimize unwanted Intercept, +of +() +Support cryptologic operations refaled 16 FOREIGM COMMUNICATIONS. +& +Communications Invplving an Ciiicer or Employes of the L8 +Goverrdmeril. + +Cammunications io-or [rom any oliisar or employea of the'U.5. Govarmment, of any-state ar kgl governmient, will not be Imentinnally intercepted. Inadverient INTERCEFTIONS +of such.communicaliens {including thase betwaen loreian TARGETS +and U.S. officials) will ba reated as Indicated i paragraphs .4.a.and b, aneva. + +~d. + +Exceplions! + +Naobwihstanging he provisions of paragraphs +54b. + +and c., tha DIRNSAICHESS may walve the destruction requiremant for international communications. containing, Inter alia, tha-fotowing types of Information: + +(1) +Signilicant FOREIGN INTELLIGENCE, or +(&1 +Fvidence of acrime or threal of death or gerious bodily harm to &ny p2raon, o +(3] +Anomalizs that reveal a potental viinaratility to 1.8, communications sacudby. + +Crrmeunications forwhich the Attarney Ganerat or DIRNSA/CHESS's wabeer is sought sheuld b2 fervarded to NSA/CSS, Attri: PO2. + +, + +## 5.5, -E-2E50) Aadio Communizations With Terminat In The United States, + +a, A radio communicalions that pass aver channels with a terminatin thg UNITED STATES +rmust ba procassed hraugh & computar scan dictionary or slmilar davica talays thase communications.gocur over channels uazd exclugively by a FOREIGN POWER, b. + +Internatiopat commn imunications that pass aver channals with a tarminal inthe UNITEDSTATESE = +@ +lcommunications, may be processad without the use of a cornputer scan dictionary or similar device if necessary to determing whether +@ channel cantaing communications of FOREIGM MTELLIGENCE interest which NSA may wish to collest, Such processing may nat sxceed two heurs without the speciic peor wiitten approval of tha DDO &nd, In any evant, shall be fimited to the minlmur aniount of tima necessary to datermine the natura of communicaiions on tha shannal and he gmount of such commupizations that ingluds FOREIGMN INTELLIGENGE. Cnaca & is determined that the channel contains sulficient communications of FOREIGN INTELLIGENGE interest to warrant COLLEQTION and exploitation to produce .FC}F?E[GN INTELLIGENCE, & computer scan dicticnary or simifar devica must be used for additional processing. + + +Copies of 4l DCO wiitten approvals made purguant 1o 5.5.0. must be provided to the General Counszl and the Inspector General, + +## Section 6 ~Retention 6.1. 5-8661 Retantion Of Communicatlons To, From Or Aboutt, 8. Peasons. + +a. + +Exceptas atharviss providad in Annex &, Appendix 1, Seclion 4, communications tg, fram ar-about 4,5, PERSONS that arz interceptad by tha USSS may be retained tn their ariginal or transcribed farm-only as (allows: +{1} +Unenciphered communications not Naughs to contaln saciat meaning may be retaned iarfive years unigss the DDO determinas in writing What reterdion for a fongee period 1$ requinad to cespond to authorized FOREIGH INTELLIGEMGE requiramaris. + +(2) +Communications necessary to mainialn tachnical data'beses for eryptanalytic or traffic analytic purposes may be retained for a perlod sufticiant to aflow. a thorough exploitations ang fo permil access t daid tnal acs,. or are reasonably bslizved hksly to became, relavant to a current or fuiute FOREIGHN +INTELLIGENCE fequirement. Sufficien! duration may vary with the nature f the exploitaticn and may consis: +of any perind nf time dusirg which the teehinizal dala basa is subject to, orof Use in, cryptanalysis. [Fau.s. + +PEASONS idanmity Is not nagessary. (o maintaimng technicdl daa bases, it should be delated or refased by a gananis lermt when practicable. + +b. + +Communications which: +could be disszminated undsr Ssction +7, balow (&, withoul gifrnination-of references lo U.8. FERS0OMNS) may ba eslaingd n their original or transeribad form, B2, (8CCOr Access. + +Access la raw lrallic storage sysiems which cantain ldentitfes of LS. + +PERSOMS must ba limitad to SIGINT groduction persannsl, + +## Section 7 - Dissemination + +7.1, E=86r Focus of SIGINT Reparis. + +All SIGINT reports will be written so 23 o focus salaly on thi activities of fareigo entities and parsonsg and thelr agants. Except as provided In Section 7.2., FOREIGH +INT ELLESENCE irdarmajion congarning U.S. PERSONS must be disseminzied in a manner which dees not idantily the ULS. PERSON, Generic or ganeral 12rms of phirases must be substituted for the identity (2.q., +"5, fie" for the specific namg of a U.S. CORPORATION or -U.S, PERSON" lor the specific nama of a U, S, PERSOM), Filas conlaiiing the idenlities of U.S8. parsons dalated from SIGINT reports will bz maintained far a maximum perind of one yaar and any requasls from SIGINT customears for such identities should be referred o PO2. + +7.2, 5-660r Disseminatinn of L).S, PERSON +Identties. + +BIGINT reports may include the ideatification of a U8, PERSOM only-il one of the fallowing candiions s mat and a detarmination is made by the appropriate approvalaythadiy that tha recipient has a read for the iden ity for the pedarmanes of his officih duties: +a. + +Thel.5. PERSON has CONSENTED ie the dissemination of communications of, or.abdut, him or har and has executed the CONSENT farm found I Annex H of this USSIO, or The information fs PUBLIGLY AVAILABLE (i.o., the information is. derlved from unclissifiad information aaz fabla fo the genaral public}, or +. + +Thaldentity of the U.S, PERSON Is necessary o understand the FOREIGN INTELLIGENCE +miormatmn or dssoss its imporlanca. + +The folloving nonexclusiva list contains examples of the typa of infermation that meet this s andau'd +(1] +EOREIGN POWER or AGENT OF A FOREIGN POWER. Tha information indicates that the U.S. PERSON ls a2 FQBEIGM POWER or an AGENT OF A POREIGN POWER, R +Unauthorized Disciosuce of Classifizd Infarmasion. Tha Infarmation indlcates that the U.S, PERSOMN may be-engaged in tha unaulherized disclosure of classified informiation: +{%) +tnlemational Narcotics Activity, The Information Indicates that the individual may engagedin international narcatics lrafficking agiivities, (Sea Annex J of this USSID for furthsr !nforma |o'1 +cancerning (ndividuals invalved in intarnational narcotics teafficking). + +{4} +Criminal Activity. The information Is evidenca that {he individual may be involved ina erime thal has been, ie being. or Is abdut to be committed, prdvided that the dissemination is for Taw gnforcement PUrposas. + +' +(& +ntelhigence TARGET. The infosmation indicates that tha U.8. PERSOM may Le ths TARGET of hostile in!ell.g&n activitize of a FOREIGN FOWER, +{8) +Threat ta Safaly. The information indicatas:that {ha idantity of the U.S. PERSOM is padinent to & possible threat to the salaly af any parson or organtzaltion, including those who are TARGETS, viclirmg of hostages of INTERMATIONAL TERACRIST organizations. Reporting units shall identiy to FO2 +any report containing the identity of a U S, PERSOM rparted under this subsection (6). Fleld reparing to P02 should be'in the foft of g C'RHFCOMh massage (D0 XA0) and includs {hs repon data-time-group +{EYTG), praduct sarial number and fhe reason forirclusion of the U.S. PERSON'S idantity. + +{7} +Senigr Executivd# Brarch Oificials. Tha idantity is that of a senior official of the Execulive Sranch of tha U.5. Government, [n this case only the official's title will b2 dissaminated. Domestic polil'sal or persanal informiation on such indivduals will b2 nelther disseminated moc retainad. + +7.3. {8-669 Approval Authorities. Approvat authorities for the releass of identities of U.S, persc under Section 7 are as follows; +g, DIRNSACHCSS. DIRMSNCHCSS must approve dissemination of; +1) +The identities of any sanator, congrassman, officar, or =m ICyan of tha LL.!"\!SL&["" +7 +g Brangh of the U.5. Governmenl. + +(2) + Theidentity +af &ny parson foe law enforcement purmoses. +b. + +Ffald Units and NSA Headquarters Elemenls. + +All SIGINT pradustion arganizations are autnoszed lo disseminate the identities of U.S. PEASONS whan: + +{1} +Theidenity is pertinant to the salely.of dny person or efganization. +() + Thaldentity +Is that of 2 sanjorofficlal of the Exarutive. Branch,. +{3 +The.U.S. PERSOM has CONSEMTED under paragraph 7.2.a. sbova. + +## . Ddo And Designaes. + +(1} In alf other cases, U.S. PERSON identities may ba relesed anly willt the prior appraval of the: Deputy Birector for Operations, tha Assissant Dflput'l Dxrecfcr far Qperations, the Criel, POZ, the Dapuly Ghlel, P02, or, in their 2bsencs, the Seivor Operatfcna Qificer of tha National SIGINT Ogarations Sarter. The DBO orADDO shall ravizw all U3, Wentitias released by thase designees as soon aspraciinable aitsr e release is mada, +(1} +For law enforcemant purposas invalving narcotics relatad information, DIRNSA has grartad ta the 0O asthority {o disseminate U8, identitizs.. This authority may not ba furthar delegated. + +Cond Uy Privileged Communicalions dnd Criminal Activity. + + All praposed dissaminations of infarrmatian constituting U.S. PERSON privilegad communications {&.9., attorneyfellsnt, doctor/patiant) and ail nfarmtion concerning criminal activities or criminal or judicial procesdidgs in the UNITED STATES must ba reviewsd by ths Ofiice of Genaral Cotnse! prinr o dissemination. + +7.8, +) Impeooer Digserningtlon. + +{1 tha:names of a-b).S. PERSON is Imoroperly disseminated, tha incident should he re 'porwd to PO2 within 24 hours of discovary of the arror. + +## Section 8 - Responsibilities + +&1, W) Inspector Gensral, The Inspector Genaral shall +2, Condust regulae inspections and parform general pvarsight of NSAGSS aclivities to ensure comaliancs with this USSID. + +b. + +Eslablizh prozadures for repacing by Key Companent and Fisld Chiefs of their activitios and practicss for eversight purpases, +. + +Rzportto the DIRNSACHCSS, annually by 31 Octabiar, consemning NSAGSS compliania with this USSID. + +3. + +Reporl guariery with the DIRNSA/CHCSS and General Counzel to Ihe Presidzamts ntelligance Cversight Board through tha Assistant o the Secrslary of Deisnse (tntelligence Qwarsight). + +82, +(U) Generat Goungel, The Gereral Coungel shall: +; +a. + +Provide legal advics and assistance ta all elements of the USSS regarding SIGINT activilles. + +Requests for legal advice on any aspecs of thasa procedures shoukibe sent by CRITICOMHM ta DBIXD!, or by NSACSS secure: teiephcne%&fi??fl: Lo b, Prepareand process alf applications for Foreign Intalligence Surveiltance Court ordges and reoussis Jor Atorney General approvals raguirad by these procedures. + +c. + +Advisa tha tnspector General in Inspections and oversight of USSS activities. + +d. Review and assess for legal implicalions as requested by the DIRNSA/CHCSS, Depuly Dirzctor, Inspactor Genaral ar Key Gomponents Cihisf, alt naw major requiremants and internally ganeratad USSS ectivities. + +& +Adviza USSH personnel of new legislatian and asefaw that may alfect USES rissions, functions, opar atlons, activitizg,ar praclices. + +I, Aeport as raquirad to lhe Altormey General and the President's (ntelligence Ouersight Board and provida copies-of such reports fo the DIRNSA/CHCSS and affested agency afefents. + +N +g. + +Process requasis from any Dol intetllgence component for autharity i usz signals as daseribed in Progedure +3, Part 5, of DoD 5240.1-8, for periods 1n excess of 90 days in tha devalopmeit, tast, or- calinration of ELECTROMIC SURVEILLANCE equipment and other equipmant that can Intarcept gammunications. + +3.3, +(U) Dsputy Director for Cparations (BDQ). + +The DDG shali: +a. + +Ersure that alb SIGINT production parsorret understand and mairtain a Woh dagras of awareness and sensitivity Lo tha requirements of this U3sSID. + +b Apply the provisions of this USSIO fo alf SIGINT preduction activities. The DOQ staf facal goint for USSID 18 matters is P02 (use CRITICCMM DDI XAC). + +o, Conducl necessary revigws of SIGINT produstion activities and gracticss t ensurg consistancy with this USSID. + +4. + +Ensure that all new malcr requirerents fevigd on the USSS or intarnalky genacatzd activities are.considated for reviaw by the General Counsal. Al activitles that raise questicns of faw o ths proper interpratation of this USSID must ba raviawsad by the Ganaral Counsel prior to accaptance or axecution. + +3.4, +(U) +Al Elemenis of the USSS. +Al elaments of the LUSSS shall +a. +tmplament this dicactive upon racaipl. +b. + +Frepare new procedures or amend or supplement aisting procedurss as ranulrad ta ensura adhsranse to this USSID. A copy of such procadures shall 9 forwarded to NSASCSS, Afine POA. + +i3, Immadiataly Inform ha o (0) +. + +- +legeflijty of the Auth()mzsttlon, Several identical Presidential Authorizations recertifying the Stellar Wind program were signed in 2002. (U//FOHO;} +In October 2002, at Attorney General Ashcroft's request, Yoo drafted another opinion for Ashcroft concerning the Stellar Wind program. + +This memorandum, dated October 11, 2002, reiterated the same basic analysis in Yoo s November 2 2001, memorandum in suort f the 1e ality of the + +## 5. Yoo's Communications With The White House (U) + +As the only Office of Legal Counsel official who had been read into the S'-t;_ellar Wind program through early 2003, Yoo consulted directly with White House officials about the program during this period. Because we were unable to interview Yoo, we could not determine the exact nature and extent of 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. {S/7/NF +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 official that the White House consulted during this period about the program. -{57/7/NFj~ +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 told the OIG that during his tenure as Assistant Attorney General he did not know that Yoo was working alone on a sensitive compartmented program and he had no knowledge of how Yoo came to be selected for this responsibility. + +Bybee told us that he was ssurprised" +and "a little disappointed" to learn in media accounts that he was not privy to Yoo's work on what Bybee had later learned to be a compartmented counterterrorism program involving warrantless electronic surveillance. Bybee said that it would not be unusual for a Deputy Assistant Attorney General such as Yoo to have direct contact with the White House for the purpose of rendering legal advice, but that the OLC +Assistant Attorney General must be aware of all opinions that issue from the OLC. Bybee said that the Assistant Attorney General has-an obligation to "see the whole picture" and is the person in the office who knows the full range of issues that are being addressed by the OLC and who can assure that OLC opinions remain consistent. {FS/HSH-AE) + +## 6. Gonzales's View Of The Department's Role In Authorizing The Stellar Wind Program +{S//Nf) + +The OIG asked Gonzales about how he, as White House Counsel, viewed the role of the Justice Department during the early phase of the Stellar Wind program. + +Gonzales stated that he and others at the White House tried to be very careful to understand what could be done legally, and they wanted to have "constarit comraunications with the Department" in the first few months following the September 11, 2001, terrorist attacks. + +Gonzales also stated that it was 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 acknowledged that the President's decision was based on advice from the Attorney General and White House Counsel, among others. {E8/7/8H +7/ - +The OIG also asked whether Gonzales had a personal belief about the justification for having a single attorney - Yoo - 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 determination or calculation. + +Gonzales stated that he understood the Department's position was that 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. + +Gongzales 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. FS+/8H-N +- +Gonzales also stated that it was Ashcroft's decision as to how to satisfy his legal obligations as Attorney General. + +However, when the OIG +asked whether Gonzales was aware if Asheroft ever requested to have additional people read into Stellar Wind, Gongzales 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: said that Asheroft complained that it was "inconvenient" not to have Thompson and Ayres read in, but Gonzales also stated that he never got the sense from Ashcroft that it. affected the quality of the legal advice the Department. pr0V1ded to the White House Gongzales stated that other than Ashicroft's request that Thompson and Ayres be read in, he did not recall Ashecroft requesting to have additional Department offic1als read in.49 {S/NFH- + +## T, Nsa's Implementation Of The Stellar Wind 'Pro'Gram (U/ /Fou0O) + +In this section, we describe the NSA's initial implementation of the Stellar Wind program. We first describe how the NSA acquired the communications data authorized for collection under the program. We also discuss the process the NSA used to analyze the information received from the Stellar Wind prog1 am and how this information was provided to the FBL +u// FOUO} + +## A. Implementation Of Stellar Wind (U//Fouo)} + +Our description of the implementation of the Stellar Wind program is based on NSA and Justice Department documents we obtained during our review, as well as interviews of NSA and Department personnel W1th knowledge of Stellar Wind''s technical operat h +4 +5 +: +basw overv1ew of how the NSA obtamed +) ) (b)( 3) + +"information is also 1mportant for later sections of thls rep01t that descnbe +significant modifications to the Authorizations regardlng the manner-and +scope of collection, the Department s re-assessment of the legal rationale +supporting the Stellar Wirid program during late 2003 and early. 2004 and +49 Gonzales stated that Ashcroft, as the Attorney General, would be well-positioned 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 attorneys within OPR be granted security clearances in rder to conduct an inguiry inito the: +professional conduct of Department lawyers with respect to the Stellar Wind program. + +Gonzales said he made his request both through White House Counsel Harriet Miers and directly to the President. + +However, the President initially declined the request, and the request was not granted until October 2007. + +(U/ /FeHE) + +ne to be commonly referred to as the three +"baskets." +tion of the content of telephone and e-mail +: basket 2 referred to collection of meta data associated +St We describe in Chapter Four changes made in March and ] 200+ ENSSES +under Presidential Authorization following a dispute between th i i the legality of the Stellar Wind program under Stellar Wmd (baskets 2 +"3), as'well meta data AS +with. commumcauons targeted for content collection under the program, was placed into.an NSA database system called which according. + +to NSA officials is'a confisuration of databases and analytical tools. + +databases are segregated into "realms" organized by the specific owmg the parucular data to be collected 53 'The content data + +## A. Telephone Commiinications (U) + +In this section we describe briefly the technical means used by the NSA to access the international telephone system to accomplish the collectmn of mternatlonal calls under the Stellar Wind program.55 +53 NSA officials said the realms also establish a system of access control to enstire that only authorized users access certain data. ~{S//Mg +54 As discussed in Chapter Five of this report, the NSA created an additional realm in July 2004 when the government obtained FISA authority to collect e-mail meta data, and another realm in May 2006 when it obtained authority under FISA to collect telephony meta.data. These realms were separate from the realms that contained information collected under Stellar Wind. #S#S?LW%%@G%W} +5 The NSA's interception of international telephone communications under Stellar Wind h1ghhghted the dramatic change in telecommumnications technology that had been takmg place for nearly 20 years. + +In 1978, when FISA was enacted, telephone calls placed by and to individuals within the United States {domestic calls) were carried mostly on copper wires, while telephone calls placed to or from individuals outside the United States. + +(international calls) generally were transmitted by satellites, PFISA reflected the state of technology then by cleflmng the term "electronic surveillance" to be the acquisitipn of the contents of certain wire and radio (satellite) communications. + +FISA stated that as to radio +(Cont'd.) +cor cbrximiinicatiOns specifically, and thus as to most international communications, the interception of calls constituted "electronic surveillance" only if the acquisition intentionally targeted a particular kriown U.S. person in the United States, or if all participants to the ommunication were located in the United States. + +See 50 U.S.C. 1801(f)(1) and (3). + +rdingly, government surveillance that targeted foreign persons outside the United Al +; +ally was not considered electronic surveillance under FISA, and the rnnienit was not required to obtain a FISA Court order authorizing the surveillance i was authori inside the S hese records, also relerred Lo as Call aetall 1eCOrds, COlsISt ol lephone +"Tout Lformation that includes the driginating and terminating te number of each-call, and the date; time, and duration of each call. The call detail records.-do not include the substantive content of any communication or the name, address, or financial information of a subscriber or customer. + +'to communications where at least one party was outside the U +es, where no party was known to be a United States citizen, or whete there was reasonable articulable suspicion to believe the ational terrorism. Asnoted in Chapter One, the information under the Stellar Wind program. + +The data was archived into an NSA analytical database that contained exclusively Stellar Wind information and that was accessible only by spemally authorized NSA +personnel read into the program. + +authorized only w1th respect to telephone communlcatlons that satisfied the Presidential Authorlzatxons "acquisition" standard. + +In fact, the NSA +reported that by the end of 2006, .001% of the data collected had actually been retrieved from its database for analysis. {FS//8TEW/1SHAOS/NF- +- +The meta datathe NSA obtamed from e-mail commumca'uons included the information that appeared on the "to," "from," "cc," "bee," and +"sent" lines.of a standard e-mail. Thus, the NSA collected the e -mail ddress of the sender, the e-mail addresses of any recipients, and the mformatlon concermng the date and time when the e-mail was sent. + +P +from the +* subject" or "re" Imes of the e-mails or the body of t + +## B, Nsa Process For Analyzing Information Collected Under Stellar Wind {877Nf) + +'The NSA conducted two functionally distinct types of review of the massive amount of data it collected under the Stellar Wind program. Fitrst, the NSA conducted procedures intended to-ensure that it only reviewed or +"acquired" the information that was within the scope of the Presidential Authorizations. + +Second, the NSA conducted substantive analysis of the acquired information to determine whether it had intelligence value that should be disseminated to customer agencies such as the FBI and the CIA. + +'The NSA procedures to ensure that the acquisition and dissemination standards were satisfied became more formahzed over time. We describe below how the NSA handled the enormous volume of data it was collecting Wwith the Stellar Wind program. {FS/+SHNF}- + +## 1. Basket 1: Content Taskmg, Analysxs, And Dnssemmatmn : + +Stellar Wind's "basket 17 content database contains telephone and e-mail communications of individuals. The NSA refers to the telephone numbers-and e-mail addresses tasked for interception as "selectors." +To task a selector under the Presidential Authorizations, the NSA was required to establish probable cause to believe the intercepted communications originated or terminated outside the United States and probable cause to believe a party to the communications was a group engaged in international terrorism, or activities in preparation therefor, or any agent of such a group.65 {TSHS%Wfi/SI-,l%@G-,LNE) +The NSA had two processes for tasking selectors under Stellar Wind. + +One process applied to tasking foreign selectors, or selectors believed to be used by non-U.S, persons outside the United States. The other process. + +applied to tasking domestic selectors, or selectors believed to be used by persons inside the United States or by U.S. persons.abroad. + +A foreign selector could be tasked for collection under Stellar Wind based upon an NSA analyst's determination, following some amount of documented research and analysis about the selector, that the terms of the Authorizations were satisfied. The NSA did not require any additional levels of approval before a foreign selector could be tasked.66 +A domestic selector could be tasked only after the NSA analyst obtained specific approvals. The rigor of the process to task a domestie selector evolved over time, but essentially it required an analyst to draft a formal tasking package that demonstrated, through analysis and documentation, that the selector satisfied the terms of the Authorizations. + +This package was reviewed by a designated senior official who could approve or reject the package, or request that additional information be provided. + +## Could Cominence Content + +L +| +of identifying a number or address ial Authorizations. + +In other cases, for urgent or priority taskings In emergency situations, interception on a selector withi +) +that satisfied the criteria in the Presiden interception commenced withir and within a week for routine taskings. + +(T34 +The NSA conducted 15-, 30-, and 90-day reviews of tasked foreign and domestic selectors to assess whether the interception should continue. + +The NSA stated that the selectors were "de-tasked" if the user was arrested, if probable cause could no longer be established, or if other targets took priority. + +TS/ +/STL +; +; +. + +The content intercepted under taskings was sent to the NSA and pl'aCed.in a database accessible by NSA analysts cleared into the Stellar Winid ; +am. The analysts were responsible for reviewing the + + +## 2. Baskets 2 And 8; Teelephony And E-Mail Meta Data Quenes, Analysns, And Dlssemmatlon + +The NSA received a massive amount of telephony and - +e-mail meta data (basket 2 and 3 information) that was stored in a realm. + +"S1b1e only by NSA analysts asmgned to the Stellar Wmd pr ogram The +. among partlcular telephone numbers and emall addresses b +| 'hlsttcated analytlcal techmques called "contact chammg'fi As described by the NSA in declarations filed with the FISA Court, contact chaining is. used to determine. the contacts made by a partleular telephone number or e-mail address (tier one contacts), as well as contacts made by subsequent contacts (tier two and tier three contacts). The NSA +uses computer algorithms to identify the first two tiers of contacts ari e-mail address makes and the first three tiers of contacts a: telephone number makes. According to the NSA, multi-tiered contact analysis is particularly useful with telephony meta data because a telephone does not lend itself to As previously noted, the NSA interpreted the Presidential Authorizations to permit it to collect telephony and e-mail meta data in bulk.67 The NSA "queried" the databases that held this data to identify meta data for communications to or from a particular telephone or e-mail address +(the "selector," also known as the "seed number" or "seed account'). NSA +analysts queried the database using a selector for which there was a reasonable articulable suspicion to believe that the number or account.had been used for communications related to.international terrorism.68 +As with proposals to task selectors, an NSA shift coordinator typically reviewed for approval proposals to query either the e-mail or telephony meta data bulk databases using particular selectors. + +If the shift coordinator agreed that the reasonable 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 e-mail addresses that had been in contact with the seed account. + +Each contact along the chain of contacts that originated with the selector was referred to asa "hop," meaning that a telephone call from the seed account to telephone number A was considered "one hop out," and a call from telephorne number A to telephone number B was considered "two hops out" +(relative to the seed account), and so on. + +NSA analysts used specialized software to chain and analyze the contacts identified by each query. The NSA told us that Stellar Wind analysts were: perm1ttecl to chaln 'che results of queries up to three haps out from the selector. + +(T +1 +The restilts of each query were analy'zed to determine whether any of the contacts should be reported, or "tipped," to Stellar Wind customers prlmarfly the FBI, CIA, and the National Counterterrorism Center. In the first months of the Stellar Wind program, the NSA reported to the FBI most contacts identified between a U.S. telephone number or e-mail address.and the selector used to query the meta data realm, as well as domestic contacts. + +that were two and three hops out from a selector. + +As discussed in Chapter Six of this report, over time the NSA and FBI worked to improve the reporting process and the quallw of the 1ntelllgence being disseminated under Stellar Wind. + +- +. + +The domestic contacts from specified numbers or e-mail addresses, called "tlppe1 s," were provided to the FBI by the NSA. These tippers were included in reports that contained two sections separated by a dashed line, comronly referred to as a "tearline," made to appear as a perforation: +extending across the width of a page. The purpose of the tearline was to separate the compartmented information above the tearline, which could identify the specific: sources and methods used to Qb,tal_n the information, from the non-compartmented information that the FBI could further disseminate to its field offices. Only FBI personnel read into the Stellar Wind program could have access to the full Stellar Wind reports from NSA., The information that appeared above the tearline typically was classified Top Secret/SCI and identified Stellar Wind as the source of the mtelhcrcnce The 1nformat10n 1ncluded 5 emflc detailsf +, s wellas any pertnent COmMMents by NSA mieligence analysts. + +The information that appeared below the tearline of a report generally was classified 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: +As examples, the following Stellar Wind reports were among those disseminated to the FBI in November 2001. We have excerpted only the information below the: tearline, which is often referred to simply as "tearling +1nformat10n 7 +In addition, we did not provide the actual telephone numbers provided by the NSA to the FBI. {P&/SHNF + +## 1Ii. Fbys Eaily Participation In The Stellar Wind Program -{S7/Nf) + +Stellar Wind was. not an FBI program; nor was the FBI involved in the program' 's creation. However, as the lead agency for counterterrorism in the United States, the FBI received much intelligence produced under Stellar Wlnd In the followmg sections, we describe how the FBI became involved in the Stellar Wind program, the personnel resources allocated to handle Stellar Wind information, and the initial procedures the FBI established to receive, control, and disseminate the program information. + +also maintained a list of foreign and domestic telephone numbers and e-mail addresses for which, based on NSA analysts' assessments, there was a reasonable basis to believe were associated with international terrorism. + +These selectors, called "alerts," were queried against the incoming meta data automatically on a daily basts, and any contacts with a demestic telephone number or e-mail address were directed to NSA analysts for review and possfl:le reporting to the FBI. The NSA regularly updated the alert list by addmg or removing selectors, depending on the available intelligence. + +## 4. Fbi Director First Informed Of Stellar Wind Program (U] [Feeueyy + +Director Mueller told us that his earliest recollection of the Stellar Wind program was a meeting he attended at the White House with Attorney General Asheroft, which occurred either after thee decision had been made to: +'move forward with the presidentially authorized program or shortly after the October 4, 2001, Authorization was issued. 'Mugeller told us the meeting was +"more than a formal read-in" and that Director Hayden may have attended. + +Mueller said that at or around this time he also briefly reviewed the October 4, 2001, Presidenti 1l Authorization, swhich he characterized as +"relatively complex." ALS{fSHHOC +MR- +Director Mueller said his impression at the time was that the terms of the Presidential Authorization might allow for collecting purely domestic telephone and e-mail communications. Mueller said he discussed the matter with Ashcroft and asked whether OLC had issued an opinion on the program. Mueller said that he recalled being told that OLC might have opined orally on the program and Mueller said he suggested to Ashcroft that OLC issuea formal written opinion. Mueller told us that he did niot think thc-;NSfA ever exercised authority under the Authorization to collect purely domestic communications. {FS/F+STEW/#8H +134F) +Mueller stated that based on the meeting he attended at the White House and his brief review of the October 4, 2001, Presidential Auithorization; he understood the FBDs role in the Stellar Wind program was. + +to be a "recipient" of intelligence generated by the NSA, and to provide any technical support to the NSA as necessary to support the program. + +(y)] +Cadind aliviintan) +WL 1Ly 4 +FAL SR +Attorncy General formally directing the FBI to support the: NSA program Mueller said that he also 1equested the order because he wanted a record as to our participation." +{F$ +' +~ +In response, on October 20, 2001, Attorney General Ashcroft sent a memorandum to Director Mueller stating: +As part of the Nation's self defense activities, the National Security Agency (NSA) is engaged in certain additional collection activities, the details of which you are aware. Those activities are legal and have been appropriately authorized, and the Federal Biireau of Investigation should cooperate with NSA as necessary for it to conduct those activities. ~(FS7//-SH-HNE- +According to Mueller, the combination of this memeoerandum from the Attorney General and the November 2, 2001, memorandum prepared. by the Dep en ffice of Legal Counsel regarding the legahty of Stellar Wind g fort gt that tithe with the FBI's partn:lpatlon iti the program; +Bowman also told us that the White House officials primarily responsible for Stellar Wind, who he identified as the Vice President and Addington, were "amateurs" when it came to intelligence work. Bowman stated that one of the potential consequences of severely limiting the number of individuals read into a program is that uncleared personnel who occupy positions placing them in close proximity to program-related activities might construe certain actions as que stioriable or illegal and report that activity, thereby potentially comprormising the activities. + +Bowman said that thisis what occurred with Stellar Wind. + +For this reason and others; Bowman did not agree with the decision to so severely limit access to the program. (FS{SFEWT HAOCHN +In the immediate aftermath of the September 11 terrorist attacks, the FBI had created a task force of agents and analysts to analyze the flood of telephone numbers it received from multiple sources, including agencies within the U,S. Intelligence Community, foreign intelligence services, and concerned citizens. The task force, called the 'Telephone'Analysis'Unit +(TAU), was located at FBI Headquarters and consisted of approximately 50 +FBI employees. working on shift rotations 24 hours per day, 6 days per week. The operation was supervised by FBI supervisors working out of the FBI's Strategic Information and Operations Center. As described below, +'personnel.a_s'sigined to this task force were. ameng,tlf_Le first at the FBI to handle Stellar Wind-derived informatio o/ +e NEr { +LST +) +I +QCH +NE + +## 1. Fbi Initiates _ [Shrf) B1, B3, B7E + +In October or November 2001, several TAU analysts were assigned to what came to be called th B +which was the FBI's effort to manage the Stellar Wind-derived information being received from the NSA. The information, referred to as Stellar Wind "tippers," consisted of telephone numbers and e-mail accounts derived from NSA meta data analysis, and sometimes content intercepted from particular tele hone and e-mail communications. The essential purpose of th was to receive Stellar Wind tippers from the N SA 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 collected. {ES/HSTLWFSH-OES/NF} +Working alternating shifts in the FBI's Strategic Information and Operations Center, two FBI analysts were primarily responsible for managing Stellar Wind tippers in the initial months of the program. These analysts told the OIG that until December 2001, the Stellar Wind tippers consisted nearly exclusively of telephone niumbers. According to the analysts, the process for handling Stellar Wind tippers began when the NSA +liaison co-located at FBI Headquarters provided one of the analysts the information below the tearline from & Stellar Wirid report contairiing orie or more tippers. The analyst then queried FBI databases for any information about each tipy h as whether the tipper appeared in any pending or closed FBI inves s, The analyst also queried the tipper against the FBI's +| +database, which is the FBI's central repository b1, b3, for telephone subscriber data acquired during the course of investigations. + + b7E +In addition, the analyst checked each tipper against public source databases for relevant information, such as the identity of a telephone number subscriber: +ST +SHO +ST +After completing these database checks, the analyst drafted an Electronic Communication, or EC, from FBI Headquarters to the appropriate FBI field office. The EC described the tearline information about the tipper contained in the Stellar Wind report together with any additional information the analyst was able to locate, ECs disseminated to: field offices included several features concerning the nature of the information and how it could bl b3, be used. + +First, the ECs advised the field offices that the information being b7E +provided was "derived from an established and reliable source" and that it was "being addressed by the TAU as th +772 (S/INE) +Second, the ECs included a caveat about the tise-of the information being provided, stating that the information "is for lead purposes only and is intended solely for the background information of recipients in developing their own collateral leads. + +It cannot be used in affidavits; court proceedings, subpoenas; or for other legal or judicial purposes." The FBI said this language was included in each EC to protect the source of the information and the methods by which it was collected. +4S//NE) +Third, the ECs provided an explanation about the qualitative rankings assigned to the tippers. As described previously, the SA assigned each Fourth, the ECs instructed the field offices how the tippers should be addressed. These instructions were provided as "leads," for which the FBIL +had three categories: Action, Discretionary, and For Inform'afion._.An Action lead instructed a field office to take a particular action in response. to the EC. An Action lead was covered" when the field office took the specified action or conducted appropriate investigation to address the information in the EC, A Discretionary lead allowed the field office to take whatever action it deemed appropriate. + +A field office that receives a "For Information" lead was not expected t6 take any specific action in response to the EC other than possibl'y route the communication to the office personnel whose investigations or duties the information concerned. S/ +After the FBI analyst completed this process and drafted the EC, an FBI Supervisory Special Agent read into the Stellar Wind program reviewed the EC, in part to ensure that it did not reveal the source of the information or the method by which the information was obtained. + +Once approved, the analyst entered the EC into the FBI's Automated Case Management System and the receiving field offices were notified electronically to review the communication. + +4ES/f +' +' +b1, b3, Eac EC typically contained muiltiple tippers and b7E +therefore was distributed to multiple field offices. The receiving field offices were responsible for handling the leads that concerned tippers falling in their respective geographic jurisdictions. SN +' +Most of the eads that disseminated Stellar Wind tippers were desighated Action leads. As noted, during this period the b1 b3 +tippers were almost exclusively telephone numbers, Accordingly, the typical b7:E +' +lead instructed the field office tof +- +1 +e +. + +. + +. + +IThe lead also imstructed the field office. + +to report the investigative results to the Telephone Analysis Unit. + +The two analysts told us that the focus of their work in the first months after the September 11 attacks was to detect what bl b3, 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. S/ +In addition to tippers containing the content of intercepted telephone and e-mail communications (content tippers), in approximately December +2001 the NSA began providing the FBI tippers + derived from the NSA's e-mail meta data. analyms {e-mail tippers). THese e-mail tlppers 1n1t1511y were routed to the same two analysts who were managing the telephone tippers. + +The analysts told us that the e-mail tippers were processed and disseminated in the same manner as the telephone tippers. Content tippers, which according to the analysts-were received very infrequently - +during this- early period, generally were also disseminated by EC to the +-appropnate field offices, but little if any research regarding the information was conduicted. The analysts said they considered the content tippers parttcularly time-sensitive and for that reason occasionally transmitted the ECs directly to the appropriate field offices or called the offices to advise that the information was being loaded into the FBI's Automated Case Management System. + +In 2002 responsibility for e-mail tippers was reasmgned to the Electronic Communications Analysis Unit. + +(TQ' I IQ"N'm' / "_'T/'/uu/ l'JI') +February 2002, one: of the tiwo FBI analysts left thef +. + +after being selected for a management pos1t10n in a different analytlcal section within the FBI's Counterterrorism Division, The b1, b3, b7E +remaining analyst became: solely responsible for managing the Stellar Wind tippers under thej situation that continued for approximately the next 12 months. The analyst told us that while her work hours during this period were "ridiculous," she did rot feel there was any pressure to add analysts to the project b because "the process was working In early 2002, FBI management instructed the long analyst to conduct some of her work while physically located in the NSA Headquarters at Fort Meade, Maryland. + +This. created an unusual bl, b3, arrangement for the analyst. The analyst contintied to receive the NSA's b7E +daily Stellar Wind reports at FBI Headquarters, and she would then drive to the NSA with the reports to draft the ECs (the analyst had remote access to FBI databases from an NSA workstation). The analyst told us that interaction with NSA counterparts during these daily visits was minimal. + +After the ECs were drafted, the analyst returned to FBI Headquarters to obtain approval to disseminate the communications to the FB['s 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 +"presence" at the NSA in connection with Stellar Wind. + +The analyst continued working on Stellar Wind matters until approximately February 2003, when a small team of FBI personnel were assigned permanently to the NSA to manage the FBI's participation in. the Stellar Winid program." +(S NE +bl, b3, b7E + +## 5. Fbi Field Offices' Response To Leads {S//NE) + +According to the two FBI analysts responsible for managing Stellar Witid information under th from approximately October 2001 to February +2003; +some agents m: 'B field offices grew bl, b3, b7E +frustrated with the informati v were receiving under the program. + +Because th Cs that disseminated the tippers to the field offices assigned most of them as Action leads, this required that the leads be covered expeditiously. (877N} +Under ordinary operating procedures, investigative leads for +| +international terrorism matters.are set by FBI Headquarters' International. + +Terrorism Operations Section. + +In addition, the ECs assigning international terrorism Jeads typically identified a Supervisory Special Agent within ITOS +as the point-of-contact for any questions field offices might have. Because the Stellar Wirid program was so-ti htly compartmented, the leads sent during this early period by the were not coordinated with ITOS, and the FBI Headquarters point-of a for any questions generally was one of the tw +{B/NE +analysts, agents s complained that the lack of information is discussed in Chapter Six of this report. s Whether thele Was sufflclent predlcatlon to open an mvestlgatlon on the telephone number or to issue a national security letter for subscriber information. <{FS//SLA/NE) +The analyst stated that in response to these calls he could only reiterate to the agents that the information was provided by a reliable, sensitive source. The analyst said this situation plOduCCd a "dichotomy" +with the tippers. + +On the one hand, there was a demand in the International Terrorism Operations Section and ield offices for the telephone numbers because of their prlorfi:y atusv and the.prevailing concern that there would be a second terr and, the limited and vague information contalned in th ECs caused somie confusmn and frustration among agents irivestigating the lead. + +FBI from past or pcndmg 1nvest1gat10ns and that th +: +ECs were frov1dmg "cm:ular reportmg 76 However, acc d1d not know the N SA was the source of the. 1ntelllgence Consequently, when-the agent. dlSCOVel ed that the number was 1dent1ca1 to a number the t th su:nply had 1dent1f1ed a prckusly known number, conducted sorne additional research that the field office likely had already done, and disseminated the information back to the field as new reporting. Because the analysts could n urce of the intelligence, the agent did not realize the +| +| +reporting in fact reflected a new fore1gn connection to the telephone nuimber. + +Another frustration veiced by agents to the analysts was that leads disseminated under the project that were d681gnated "Action leads" frequently did not yield mgmficant 1nvest1gat1ve and the NSA subsequently disseminated the results back to the FBI in a Stellar Wind The NSA responded to this frustration by implementing 'th'erankings described earlier to provide the agents some guidance on prioritizing the tippers. In addition, the FBI analysts.told us that they becarme more adept at telepho ne analvsis and "got better at their game" by eliminating low value tipper{ TSI (rom being disserninated to field offices. According to FBI documents, the FBLals sought additional information from the NSA about tippers ranked[] +before the FBI disseminated these tippers to the field for investigat + +## 3. Fbi's Efforts To Track Ste'Llar' Wind Ti Executive Management On Status Of B1, B3, Leads {S//Nf}- + +Typically, FBI ECs-originate from a specific investigative or administrative case file number. + +A file number is also required for an EC to be loaded into the +'BI's Automated Case Management System and te enable he sending office to assign a lead to the receiving office.. Howeve EBI +ers did not initially open an investigative file for thej bl, Cs that disseminated Stellar Wind tippers to field offices. One of +' +the original analysts assigned to the project told the OIG that he was familiar with a telephone analysis project in the FBI's drug program and that as a result he decided to issue the first Stellar Wind-related EC from that drug investigative file. This confused some field offices receiving the earliest ECs because counterterrorism leads were being disseminated under a drug investigation file number. + +SEEWH- +e, In mid-October 2001, the FBI created a subfile under the FBI's investigation of the September 11 terrorist attacks to disseminate Stellar b3, Wind information. The FBI used this subfile, referred to as th b7E +until September 2002, when a more for disseminating Stellar Wind information, called was created."" +{ES/HSTLWHSHOCSNF +The. + +{analysts also told us that they created a bl, b3, database to attempt to track the status of leads disseminated to the field b7E +offices. The database identified each tipper by field office and the status of the lead that was assigned. + +One analyst stated that the response rate from field offices was uneven durmcr these carly months and:their SUPETViSOrs. + +b1, b3, instructed the analysts at one j +: the head of each fleld office b7E +to determine the status of the responsible, A4S/ NEy nalysts used the database they created to produce status reports for senior FBI offimals who were read into the Stellar b1, b3, Wlnd program. These reports provided statistics. regarding the quantity' and b7E +inated tippers, as well as brief synopses of the status of leads. + +The Stellar Wind program was viewed as-an emerb Yy rEs onse to the Septernber 11 attacks and these status reports. + +were intended to provide FBI executives information about how the program was contributing to the FBI's counterterrorism efforts. {5875t/ + +## Iv. Justice Department Office Of Intelligence Policy And Review's (Oipr) And Fisa Court's Early Role In Stellar Wind + +When the President signed the first Authorization for the program on October 4, 2001, only two Department officials outside the FBI were read into the Stellar Wmd program: Attorney General John Ashcroft, who cert1f1ed the Authorization as to form and legality; and John Yoo, the Deputy Assistant Attor ney General in the Office of Legal Counsel respon31b1e for advising the Attorney General on the matter and for drafting the Department's first memorandum on the legality of the program.' The Department's Office of Intelligence Policy and Review (OIPR), despite its: +expertise in FISA matters, was not asked to consider how FISA might affect the program's legality or implementation, nor was OIPR asked to consider how the program might affect the Department's FISA operations. + +"(V'PQII 1/ C;T / /T\TE'\ +In this section, we provide an overview of OIFR, how James Baker, the head of OIPR, inadvertently came to learn about Stellar Wind soon after it was initiated, and the subsequent role that OIPR played in the program's operation. We also describe 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 program. + +(TS//STLW L/ SI//OC/NE) +78 +Levin told us that he did not believe Yoo was read into Stellar Wind before the October 4, 2001, Presidential Authorization was signed, and we were not able to determine precisely when Yoo s read-in occurred. However, Yoo's Nevember 2, 2001, memorandum ahalyzes 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 Tater than November 2, 2001. -&Sfifi?bW#SW@GfN-F}- + +## " A. Overview Of Oipr (U) + +At the time of the implementation of the Stellar Wind program, OIPR +was responsible for advising the Attorney General on matters relating to the national security activities of the United States." +Created shortly after enactment of the Foreigr Intelligence Surveillance Act of 1978, OIPR +re_vic_wed executive orders, directives, and procedures relating to the intelligence community, and approved certain intelligence-gathering activities, OIPR also provided formal and 'inf'c')r-malvlegal advice to the Attorney General and U.8. intelligence agencies regarding questions of Jaw and procedure relating to U.S. intelligence activities. + +In addition, OIPR +-advised the Attorney General and agencies such as the CIA, FBI, and Defense and State Departments concerning questions of law relating to U.S. + +national security activities and the legality of domestic and overseas intelligence operations. (U//FEU6) +OIPR also represented the United States before the FISA Court. OIPR +was responsible for preparing and presenting applications to the FISA Court for orders authorizing electronic surveillance and physical searches by U.S. + +intelligence agencies for foreign intelligence purposes in investigations involving espionage and international terrorism. When evidence obtained under FISA was proposed to be used in criminal proceedings, OIPR sought the necessary authorization from the Attorney General_, and in-coordination with the Criminal Division and U.S. Attorney's Office prepared the motions arid briefs required by the federal court whenever surveillance under FISA +was challenged. + +(U) +- +The head of OIPR was referred to as the Counsel for Intelligence Policy and was supported by two Deputy Counsel and a staff of attorneys, 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 (U/ Freee) + +Balker told us that while standing outside the Department one 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 period our review encompasses. + +80 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 Department in October 2007. + +(0 +foreign-to-domestic collection was being conducted without a FISA order, and that some FBI personnel "were getting nervous." The FBI colleague asked Baker whether he knew anything about the activity, and Baker responded that he did not. {FSH-STEW/SHFSSNF +Baker said that while reviewing a FISA application several weeks after this conversation, a par ticular passage regarding international communications "leapt out at" him. According to Baker, the passage contained "strange, unattributed language" and information that was "not attributed in the usual way." Baker told the OIG that the information concerned coninections between telephone numbers, but he:could not recall if the information simply identified a link between individuals or also iricluded the content of communications. FSAASEHNE- +Baker asked the OIPR attorney responsible for the application about the information in the passage, and the attorney responded that nobedy at the FBI would disclose where the information had come from, only that it was patt of a "special collection." Baker therefore contacted the FBI about the application, Unable to obtain any answers to his questions, Baker informed the FBI that he would not allow the application to be filed with the FISA Court. Baker said that, to the best of his recollection, he did not. + +believe the application was filed with the Court. -(?SffSH%NF) +Soon thereafter, Baker spoke with Daniel Levin, who. at that time was serving as both Counselor to the Attorney General and Chief of Staff to the FBI Director. Levin told Baker that approval from the White House was needed before he could tell Baker about the special collection. + +Levin told us that he 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. -{FSSTEW/H +S/ OC/NF +According to NSA records, Baker was read into Stellar Wind in January 2002.81 +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 flawed legally. Baker said he did not consider himself a constitutional law scholar, but was nevertheless surprised that while Stellar Wind was in. his view "overriding a criminal statute" on the basis of the President's power as Commander in +'Chief, Yoo's memorandum did not even cite an important U.S..Supreme Court opinion on presidential authority during wartime, Youngstown Sheet +& Tube Co. + +Ba}kef said he believed that it is important to exercise-some +"hurmility" when dealing with national security matters because of the complexity and importance of the issues, and he 'thcrefo_re- reserved final judgment on the memorandum until he researched the legal issues further. + +Yet, Baker said his initial opinion that the memorandum was flawed legally did not change over time. + +: +STEWASH +- +We asked Baker whether at the time he thought the collection +' +authorized under Stellar Wind could have been accomplished under FISA. + +Balker said that his thinking on this issue has evolved over time, but that he staunchly believed that "FISA works in wartime." He stated that although it is.difficult to do, FISA can be made to work under the circumstances that existed. following the September 11 attacks, but that it also was easy 1o +"make FISA not work" under these circumstances. + +Baker cited a lack of resources as the primary impediment to using the FISA process;, rather than Stellar Wind, to collect foreign intelligence following the September 11 attacks. Baker said that he did not believe OIPR, as staffed in October 2001, had sufficient resources to process the volume of telephone numbers the NSA was tasking for content collection under Stellar Wind at that time. + +However, Baker explained that in his view FISA is "scalable" and that to some degree the statute's utility is limited by the resources allocated to OIPR:82 +F +o LOCHN +Baker also observed that to bring Stellar Wind's content and meta data collections fully under FISA authority would have required a different approach to the statute. Baker said that developing such an approach wouild have been possible only by convening a working group to examine constitutional and practical issues. Baker, one of only three people inn 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 U.S. Intelligence Community officials that had worked periodically since shortly before the September 11 terrorist attacks to develop solutions to various foreign intelligence collection iesues +8 {LSLSTLW/ /ST LOCHN + +## C. Fisa Court Is Informed Of Stellar Wind 4 + +. + +Baker told the OIG that sometime in the December 2001 to January +2002 time period he concluded, based on his awareness that information derived from Stellar Wind had been used to support at least one request for a FISA application, that the FISA Court also needed to be made aware of the Stellar Wind program. Baker said that the Department's counterterrorism efforts rely on good relations with the FISA Court and that candor and transparency are critical components of that relationship. According to Balker, OIPR had a policy of full disclosure 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.'jilflpriove'd 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 relationship if the Court learned later that information from Stellar Wind was included in FISA +applications without notice to the Court. + +ST +Aatar 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 theissuie was being considered. Baker initially agreed to this approach and drafted a memorandum +{rom Ashcroft to Baker to this effect. He said that Levin edited the document and presented it to Ashcroft, who signed it. The memorandum, dated January 17, 2002, stated that Asheroft understood FISA Court applications would include information obtained or derived from Stellar Wind, and that these applications would seek authorizations to conduiet surveillance of targets already subject to surveillance under Stellar Winid. Ashcroft's memorandum also stated that he was considering Baker's recommendation that the Department brief the FISA Court on the prograiil. + +The mermorandum 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. + +I am also directing you not to brief any other However, as we discuss in Chapter Five, while the transition was successful with respect to bulk meta data collectior, the:legal theory to transition Stellar Wind's content collection, while initially approved by one FISA Court judge, subsequently was rejected by a second judge. + +individuals in the Department of Justice, including the FBI,. + +regarding Stellar Wind without my prior authorization, Levin told us that he, as well as Ashcroft, soon came to agree with Baker that the FISA Court should be made aware of the program. Levin said he told Ashcroft during this: time that Baker had done a "remarkable job" building a relationship with the FISA Court that greatly benefited the Depattment's counterintelligerice and counterterrorism efforts. Levin said he advised Ashcroft, "We should do what Baker thinks is right" According to Levin, Ashcroft agreed, +F +Levin said that he informed Gonzales and Addington at some point of Baker's position that the FISA Court should be made aware of Stellar Wind, but said they initially rejected the idea of reading any judges.into the program. Levin stated that he continued to press the issue without success. + +However, the issue came to a head on a weekend in. January 2002 +when Baker reviewed a second FISA application that contained the "strange, unattributed language" Baker understooed to indicate that the information referenced was obtained from the Stellar Wind program. This second FISA +application sought emergency ap roval from the FISA Courtito conduct v;lectronic.'survefllane-o +. + +] +e oers +. == +|Becausethiswould be the first application seeking FISA authority t6 monitor this particular subject's telephone communications, Baker recognized that the NSA had already engaged in some level of electronic surveillance in the United States of a domestic telephone number without a FISA order. + +Although Baker viewed the memorandum from Ashcroft directing him not to inform the FISA Court about Stellar 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 information without informing the FISA Court. Baker therefore approached the Chief of the Justice Department's Professional Responsibility Advisory Office (PRAO) to discuss his ethical responsibilities to the FISA Court under circumstances where a FISA application contains certain information that is material to the Court's decision, but Baker was not authgrized to disclose the source of the information.85 Baker stated that the PRAO Chief told him that he had an affirmative duty of candor to the Court, and that this duty of candor was heightened due to the ex parte nature of the FISA proceedings:# Baker concurred with this guidance, which Baker felt also was compelled by his position as a federal officer and officer of the Court. Baker said he 'therefore concluded, and informed Levin, that he would not sign the pending application or present to it to the FISA Court, nor would he allow any OIPR +attorney do so. According to Baker, Levin spoke to David Addington about the situation, but Addington nevertheless declared that the Court would not be read into the program. + +5 +' +' +According to Baker, the White House, the Attorney General, and Levin then decided that Levin, rather than Baker, would sign the FISA application and present it to Judge Claude M. Hilton, the FISA Court judge responsible for hearing FISA matters that weekend +.87 Baker told us that he notified Judge Hilton in advance that the application was being handled in this manner. Levin said he brought the application to J udge Hilton's residence and explained that he, instead of the OIPR Counsel, wag presenting the case because it involved a "special classified program." Levin told us that Judge Hilton approved the application without asking any questions. According to Levin, when he later told Addington how the matter was resalved, and that he agreed with Baker's position that the Court should be briefed into the program, Addington responded that Baker should be fired for insubordination for not signing the application. {F8/5 +: +According to Baker, a CONSensus formed after this episode among the Attorney General, the FBI, and the White House that future FISA matters could not be handled in the same fashion, particularly in view of the anticipated increase in FISA applications resulting from the intelligence collected and disseminated under Stellar Wind.B Baker said that the material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse." Baker stated that he also consulted with two officials from the Office of the Deputy Attorney General on the matter and that they provided the same advice as PRAO. + +(U) +87 Director Mueller and Attorney General Ashceroft already had signed the application. + +(U) +38 'We asked Baker whether he thought the FBI's restrictions on the use of Stellar Wind-derived leads disseminated to field offices, as described above, were sufficient to guard against including Stellar Wind information in FISA applications. + +Baker stated that his experience with FBI record-keeping practices did not give him a high degree of +(Cont'd.) +decision was therefore made to brief the FISA Court's Presiding Judge, Royce Lamiberth.89 +{F8/4 +[SLL/C +Judge Lamberth was read into Stellar Wind on January 31, 2002. + +The briefing was conducted in the Attorney General's office at the Department, and was attended by Asheroft, Hayden, Mueller, Levin, Yoo, and Baker. According toa memorandum of talking points prepared for the briefing, Ashcroft provided Judge Lamberth a brief summary of the program's creation, explaining that the President had authorized a sensitive collection technique in response to the September 11 attacks in order to obtain foreign intelligence information necessary to protect the United States from future attacks and acts of international terrorism. Ashcroft said the NSA, at the instruction of the Secretary of Defense, implemented the collection, which was code named Stellar Wind. (PSS HSTEWSH-OE/NFY +According to the talking points, Ashcroft also discussed the factors the President considered in determining that an "extraordinary emergency exists" to support electronic surveillance without a warrant. The factors. + +cited to Judge Lamberth paralleled those contained in the Presidential Authorizations, includihg "the magnitude and probability of death from terrorist attacks, the need to detect and prevent such attacks with secrecy, the possible intrusion into the privacy of American citizens, the absence of a more harrowly-tailored means to obtain the information, and. the reasonableness of such intrusion in light of the magnitude of the potential threat of such terrorist 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 lawful under the Constitution. + +Levin told us that Ashcroft emphasized to Judge Lamberth that the FISA Court was not being asked to approve the program. AFS +AT +SHOS/ R +Following Ashcroft'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 difficult to track Stellar Wind-derived information. According the F Bl OGC, Baker did not share with the FBI his concerns about whether its record-keeping practices would keep Stellar Wind information from being used in FISA applications. + +RS +STEWAAS +OO AN +proposal for ha_ndhng FISA apphcauons that contained program-derived information. + +Levin told us that when the briefing concluded, Lamberth acknowledged he was not being asked to approve the program and expressed his appreciation for being read in. According to Baker, Lamberth also remiarked, "Well, it all depends on whether you can get five votes on the Supreme Court, but I''m comfortable with it." For the next 4 months, until the end of his term in May 2002, Judge Lamba th Was the only FISA Court judge read into Stellar Wind. + +{F +_ + +## D. Oipr Implements "Scrubbing" Procedures For Stellar Wind Informatmn In Internatmnal Terrorism Fisa Applications + +Following Judge Lamberth's read-in to the Stellar Wind program, Baker implemented procedures in OIPR to address two scenarios in which Stellar Wind could affect international terrorism FISA applications.90 +First, information obtained or derived from Stellar Wind might be included in a FISA apphcatlon to establish probable cause that the target of the apphcatwn is-a foreign power or an agent of a foreign power and that the target is using or is about to use a particular "facility" (a term used in FISA +generally to refer to a spec,lfic telephone number or e-mail address) at which the electronic surveillance is directed. + +Second, a FISA application might target facilities that were also targeted by Stellar Wind, a situation referred to as "dual coverage" because the targeted communications were collected under two seeparate authorities. + +Baker's procedures, referred to as +"scriibbing" procedures, applied to initial FISA applications as well as to renewal applications seeking to continue existing coverage of targets +(electromc surveillance under FISA generally is authorized for 90-day periods). (FS7HSPEW/SHAOCHNR- +Judge Lamberth required that all applications that contained NSA +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 OIPR's obligation to inform the Court of all material facts contained in a FISA application. + +According to Baker, the scrubbing +9% The procedurces 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 FISA 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." +procedures were a means of implementing his ethical duty of candor to the Court without disclosing the existence of the Stellar Wind program to uncleared attorneys and judges. Bakeralso said that Judge Lamiberth wanted to be informed of applications that contained Stellar Wind information.and of dual coverage situations, and that Judge: Lamberth believed that the procedures devised by Baker were an appropriate and acceptable means of accomplishing this: According to Baker, the scrubbing process made him and Judge Lamberth "comfortable the Court was being told what it needed to be told."! + +W +ELo i o i MAVASL +AT +OV +S +T +We describe below the initial two scrubbing procedures implemented by Baker as well as the difficulties they created for the FISA application process. WWGG%NF) +LS +' +: + +## 1. Initial Scrubbing Procedures {T8//Sh-Nf) + +Each international terrorism FISA application was "scrubbed" for Stellar Wind information and dual coverage before it was filed. + +However, Baler, as the only person in OIPR read into Stellar Wind, was unable to explain to his staff why the scrubbing was being conducted. With the NSA's cooperation, Baker initially scrubbed the applications without any assistance from OIPR staff, Baker said the time-and effort he expended on this practice was not sustainable, and within. weeks.of beginning the scrubbing procedures Baker enlisted the assistance of OIPR's Acting Deputy Counsel for Intelligence Operations, Peggy Skelly-Nolen. Skelly-Nolen stated to the OIG that Baker told her at that time that he "needed to tell me something that he couldn't tell me," but was:.able to convey that he needed her and the office's assistance to process international terrorism FISA +applications because the supporting declarations contained information that required special handling. + +IS/ +N +The scrubbing process, or "the program check" as it came to be known within OIPR, had two purposes. The first 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. + +: +To accomplish the first purpose, OIPR attorneys were required to identify any information in applications attributed to the NSA, even if there was 1o suggestion the information was derived from a special program. The OIPR attorneys provided by e-mail the relevant excerpts from the applications to a designated OIPR legal assistant, who in turn compiled the information and transmitted it to the NSA by secure e-mail or facsimile. + +Upon receipt, the NSA conducted a check of the identified information against the Stellar Wind reports database, among others, to determine whether the information was derived or obtained from the program (as distinguished from being obtained by some other NSA signals collection activity). The NSA provided OIPR the results of its search by return e-mail or facsimile, writing next to each excerpt either "yes" or "no" to indicate whether the information was Stellar Wind-derived. Judge Lamberth did not fequire that Stellar Wind-derived information be removed frem FISA +applications, only that any such applications be filed with him exclusively and the Stellar Wind information identified to him orally.92 +The second purpose of the scrub ~ to identify dual collection applications - followed similar steps. On approximately a weekly basis, an OIPR legal assistant requested. that OIPR attorneys transmit to him all facilities. targeted for electronic surveillance in applications scheduiled to be filed with the FISA Court that week. The legal assistant created a single list of all'targeted telephone numbers and e-mail aceounts and e-mailed or faxed the information to the NSA. The NSA in turn checked the Stellar Wind database to determine whether any of the listed facilities were tasked for content collection under the program. The NSA provided OIPR the resulfs of this check by return e-mail or facsimile, writing next to each facility either +"yes" or "no" to indicate whether the facility was tasked under Stellar Wind. + +nning in earl 2002, any FISA ap iioations'rthativne_lude'd. the. + +s phre +. + +' +' +: +| were to be +- +. + +eISO would inform 'J'u'd'ge 'EMB'e_~r{h?~dire1y: that it -WS a +"Lamberth only" case to indicate it was connected to Stellar Wind. + +(TS /STIW/ /SLH/OC NE)- + +## 2. Complications With Scribbing Procedures. + +Skelly-Nolen told us thatno ene in OIPR, including her at that time, was aware that the checks Baker was requirinig the office to make concerned a specific compartmented program. However, the scrubbing procedures generated questions from OIPR attorneys and FBI agents, particularly when Skelly-Nolen instructed an OIPR attorriey to add to an application the descriptivephrasc Rl +' +- +Skelly-Nolen told us that she wes not able to pre +, to the questions because she did not have the answers. aListactory response +'Skelly-Nolen also stated that it was stressful to comply with 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 for filings but were not being provided an explanation for these measures. + +She said this stress was compounded by the concurrent anthrax scare and the prevailing belief that there would be another terrorist attack. + +Skelly-Nolen stated that OIPR staff was acting based on Baker's representations alone, and while Baker sought to assuage any concerns the OIPR attorneys had over these new procedures by explaining to the office that he had spoken to the Attorney General and the FISA Court on the issue, some OIPR attorneys simply were not comfortable unider these circumstances and Skelly-Nolen had to reassign the international terrorism cases these attorneys were handling. Baker stated that he regularly told attorneys that they did not have to sign applications that they were not comfortable with, +(PS4 +| +The process for filing international terrorism FISA applications was further complicated by the fact that of the two J ustice Department officials authorized to approve such applications - the Attorney General and the Deputy Attorney General - only Attorney General Ashecroft was read into Stellar Wind.94 As mentioned previously, Larry Thompson, who served as Deputy Attorney General from May 2001 to August 2003, was never read into the Stellar Wind program. Alberto Gonzales, who served as White House Counsel from January 2000 to February 2005, Stated to the OIG that +7 +. + +. + +mconvenient" not having these two The situation with Thompson caused Associate Deputy A'_'ttor'ney General David Kris, who oversaw national security matters in the Office of the Deputy Attorney General during Thompson's tenure, to draft a memorandum on January 11, 2002, advising Baker that he should not send Kris any FISA applications that included information obtained or derived from the Stellar Wind program, and that Kris intended to advise Thompson not to review or approve any such applications.9% The memorandum stated that Kris was aware of the existenice of a "highly classified information-collection program that has the unclassified code name 'Stellar Wind'," but that he was "wholly unaware of the nature and scope of the Baker + +- +program." Kris also stated in the memorandum that his request for a +briefing on the program had been denied and that he was aware Deputy +Attorney (}enera-l ThompSon also had not been briefed on the program.? + +## E. Judge Kollar-Kotelly Succeeds Judge Lamberth As Fisa Court Presiding Judge (U) + +Judge Lamberth's 7-year term on-the FISA Court ended in May 2002 +On May 19, 2002, Judge Colleen Kollar-Kotelly was appointed to the Court to replace Lamberth as the Presiding Judge. + +In connection with this appointment, Judge Kollar-Kotelly was read into the Stellar Wind program and provided an opportunity to-examine the Department's analysis of the program's legality. Judge Kollar-Kotelly also spoke with Baker on numerous occasions about the scrubbing procedures he implemented to account for Stellar Wind information in international terrorism FISA applications and to identify applications that would result in dual coverage. + +## 1. Judge Kollar-Kotelly Modifies Oipr Scrubbing Procedures {F5//Sh-/Nf) + +Judge Kollar-Kotelly received her first briefing on the Stellar Wind program in the Attorney General's office on May 17, 2002, 2 days prior to being formally appointed Presiding Judge for the FISA Court. Baker, who attended the briefing, told us that the presentation was sirnilar to the briefing initially provided to Judge Lamberth. Judge Kollar-Kotelly had several questions concerning the scope of the President's authority to conduct warrantless surveillance, and the Department responded that same day with a letter signed by OLC Deputy Assistant Attorney 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 Wind, ~{FS+H-SFE +'- +: +According to Baker, Judge Kollar-Kotelly met at the White House with Addington, Gonzales, and Yoo to read Yoo's letter, but she was not permitted to retain a copy or take any notes. Judge Kollar-Kotelly 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." {FB/SHNF +Judge Kollar-Kotelly also requested an opportunity to review the Presidential Authorization initiating Stellar Wmd On August 12, 2002, she reviewed the October 4, 2001, Authorization. + +51 +Baker said that he met with Judge Kollar-Kotelly on several occasions after her initial Stellar Wind briefing to discuss how OIPR had been handling Stellar Wind's impact on FISA apphcatlons Balter described for her the existing procedures to account for NSA information containied in FISA applications derived from Stellar Wind, and to identify applications that if. approved Would produce dual coverage of a facility. + +Judge Kollar-Kotelly also was iiiterested in identifying whether a facility targeted in a FISA application had been tipped to the FBI as Stellar-Wind derived information. Baker told the OIG that at this time he did not believe the FBI .and NSA had the ability to track Stellar Wind tips on a tlmely basis. Baker said he mistakenly believed that as tips passed from the NSA to FBI Headquarters, and from there to FBI field offices for investigation, it would be exceedmgly difficult to trace the specific source of +. the information in a sufficiently timely mariner for inclusion in a FISA +apphcatlon. Baker provided his understanding to Judge KollarKotelly, llkenmg the Stellar Wind information in tips to:the FBI as "salt in soup" that is impossible to extract once added. Based on Baker's representations, Judge Kollar-Kotelly did not require- the Depattment to identify whether a facility targeted in a FISA apphcat1on was ever provided to the FBI under Stellar Wind.98 +Judge Kollar-Kotelly decided that the scrubbing procedures +1mplemented under Judge Lamberth should contmue but she directed +|las 2 means of +; TIOULYINg Ner that tacmnes targeted by the' apphcat1ons were also targeted under Stellar Wind. Baker said that while Judge Kollar-Kotelly understood that instances of dual coverage would occur, she 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 NSA's technique for collecting the same information the government was seeking to collect under FISA .99 +98 +Baler eventually learned that the FBI and the NSA in fact did have some ability to. track Stellar Wind information. + +As discussed in Chapter Six, in March 2004 Judge Kollar-Kotelly added to the scrubbing process a check performed by the FBI to determine whether any telephone numbers or e-mail addresses contained in a FISA application had ever been provided to the FBI in a Stellar Wind report. {FS7/STEW/SH1OSNE} +Baker said he believes Judge Kollar-Kotelly was trying to protect the FISA +'Ceu-r{t and did not want the 1eg"a?li'cy of the Court's orders called irito question.F +Judge Kollar-Kotelly also directed OIPR to excise from FISA +'applications any information obtained or derived from Stellar Wind. Baker told Judge Kollar-Kotelly that OIPR could implement this requirement using the scrubbing procedures already in place, and that where the FBI included NSA information in an application dctermined to be Stellar Wind-derived,. + +OIPR would excise it. + +JSTIWLLSTH +OGN +Judge Kollar-Kotelly also instructed Baker to alert her of any instances where an application's basis for the requisite probable cause showing under FISA was weakened by excising the Stellar Wind information. + +In such cases, Judge Kollar-Kotelly would then decide whether to.approve the application with the knowledge that additional relevant information had been excised. + +- +~ Even though Judge Kollar-Kotelly's scrubbing process was intended to eliminate all Stellar Wind information from international terrorism FISA +applications, she still required that scrubbed applications be filed with her only. + +In time, Judge Kollar-Kotelly relaxed this requirement and permitted other judges on the Court to handle these applications, although only after first being filed with her. 100(FS/AASTEWA/S1//OC/NE). + +## 2. Oipr Implements Judge Kollar-Kotelly's Scrubbing Procedure {Ts{/Sh-Nf + +According to Baker and Skelly-Nolen, the mechanics within OIPR for determining whether an application contained Stellar Wind information or targeted a facility also targeted under Stellar Wind remained essentially unchanged after the transition from Judge Lamberth to Judge Kollar-Kotelly. + +However, the scrubbing process became more complex. + +For FISC." The letter memorialized the information Judge Kollar-Kotelly 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 Kollar-Kotelly wrote, +"Without opining on [Stellar Wind]-related legal issues, +1 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 targers that overlaps the set of [Stellar Wind] targets." We discuss this letter in Chapter Four of this R, example, because only the Attorney General could sign the applications and Judge Kollar-Kotelly required that only she receive the applications (even after being scrubbed), Skelly-Nolen had to regularly visit the Attorney General's and Presiding Judge's residences with stacks of what Skelly-Nolen: +came to refer to as "AG-KK only" FISA applications. + +The situation was further complicated when Ashcroft was on overseas travel and his signature was needed for a serubbed apphcatlon ready to be filed. When this occurred, the classification of the application's signature page was' "downgraded" and then sent to Ashcroft by secure fax. The actual application was not faxed; instead, Skelly-Nolen typically included a statement from her or Baker with the signature page indicating that the application was proper and comphed with the requirements of the FISA +statute. Skelly-Nolen observed that in these cases Ashcroft essentially relied on her and Baker's assessments of the applications - even though Skelly-Nolen was not read into Stellar Wind at this time. Scrubbed applications were handled similarly when Ashcroft was traveling domestically, although in those instances the apphcatlons could be pr0v1ded. + +along with the signature page if requested.10! + +: +Judge Kollar-Kotelly also required that heanngs for the "AG-KK only" +FISA apphcatlons and renewals be scheduled for late in the day or on the weekend, either in her courtreom chambers at the District Court for the District of Columbia or at her residence, According to Skelly-Nolen, Judge Kollar-Kotelly insisted on this practice so that the "AG-KK only" docket did not interfere with her regular court docket. From Skelly-Nolen's perspective, this practice proved to be an "enormous burden," particularly in cases: +involving applications to continue FISA coverage on targets of emergency suthorizations.192 Skelly-Nolen explained that these authorizations were, for "no good operations reason" that she was aware of, routinely approved by the Attorney General on Fridays, meaning that a FISA application had to be filed with the Court within 72 hours - by Monday ~ to continue the ernergency surveillanice coverage. However, because Judge Kollar-Kotelly had a regular court docket on Mondays, she required that any scrubbed FISA application seeking authority to continue surveillance initiated under W2 As previously described, under FISA during this time period, when the Attorney General reasonably determines that an emergency situation exists prior to obtaining a FISA +order, the Attorney General may approve the use of electronic surveillanice for a period of up to 72 hours without an order. + +(U) +emergency authorization be scheduled with her for 'Sunday. Skelly-Nolen stated that these cases would be in addition to the renewal applications that also had to be heard on Sundays so the authority for the surveillance in those cases did not expire and the coverage lapse. + + Baker identified another issue that stemmed from Judge Kollar-Kotelly's requirement that only she receive dual coverage applications. The problem arose when Judge Kollar-Kotelly was out of town and unavailable to hear a dual coverage .application, Baker's solution was either to fly the application to the place Judge Kollar-Kotelly was located, or to contact the NSA and request that it "de-task" the facilities that the FISA +application was targeting. + +In this way, the application could be presented to an alternative FISA Court judge because it no longer targeted facilities that were also targeted under Stellar Wind. + +TS/ +/STLWHSHAOC, NF +For example, Baker described a situation where the FBI was urgeritly interested in a particular individual whose telephone was currently tasked by the NSA under Stellar Wind. + +In this case, Baker instructed the NSA to de-task the telephone number so the FBI's FISA application could be presented to a judge other than Judge Kollar-Kotelly. To prevent any gap in coverage between the time the NSA detasked the telephone number and the Court approved the FBI's application, surveillance was initiated under FISA's emergency authorization provision and then presented to a FISA +Court judge within the requisite 72 hours. According to Baker, proceeding in this fashion "made everyone comfortable," including the NSA. Baker told us that this situation occurred a couple of times each year. + +According to Baker and Skelly-Nolen, these examples illustrate how having only the Attorney General and a single judge on the FISA Court read into Stellar Wind complicated the FISA process. Baker said that "fairly early on" after being read into the program, Judge Kollar-Kotelly made several requests for other FISA Court judges to be read into the program. Baker told the OIG that these requests were generally made through him, orally and in writing, but was aware that on at least one occasion Judge Kollar-Kotelly 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. {FS/HSFEN/FSHFOC/ +N~ +In a January 12, 2005, letter to Baker, Judge Kollar-Kotelly summarized the situation, stating, "I have repeatedly asked that the other members of the FISC be given access to the same information that I have received regarding the [Stellar Wind] program. + +To date, the executive As & consequence of only Judge Kollar-Kotelly being read into Stellar Wind and her insistence that she alone handle applications scrubbed of Stellar Wmd mformatmn or that mvolved taskmcr telephone numbfns or Novembe1 2004 she was handlmg applommatel perccnt of' all FISA +applications. Judge Kollar-Kotelly also tended to heatr successive: +appllcauons regarding the same targeted facilities. She discontinued this practice in November 2004 and permitted other judges to hear scrubbed apphcahons Judge Kollar-Kotelly later wrote that her decision was "based on the operational systems" OIPR had in place to scrub applications and that she assured her colleagues "that they could properly decide [the cases] +based on the information in each application, without the additional information on which I have been briefed, but which, to date, the other judges have not received." (?SHS'H:W;';'SH;L@%N{H + +## V. Fbi Initiates Measures To Improve The Management Of Stellar Wind Information {S//Nf}- + +Following the terrorist attacks of September 11, the FBI had reallocated personnel and resources to counterterrorism operations, and established the Telephone Analysis Unit (TAU) to exploit telephone communications data. We described above how a small ents and bl, b3, analysts from this unit was reassigied to the which b7E +was responsible for handling the Stellar Wind reports provided by the NSA, In approximately May 2002, the TAU was renamed the Comimmunications Analysis Unit (CAU) and became one of the units within the newly ereated Communications. Exploltatlon Section (CXS). According to the first Acting CAU Unit Chlef the FBI s vision for the un1tw +5 +that i + +## Program Was One Source For Obtaining Thisf + +In this section, we describe changes the FBI implemented in late 2002 +and early 2003 to manage the intelligence it received under Stellar Wind. + +These changes included attempts to improve coordination with the NSA, implement a more formal program to receive intelligence from the NSA and disseminate it to FBI field offices, educate the FBI field offices about the value of the intelligence and FBI Headquarters' expectations concerning its use, and assign a small team of FBI personnel to work full-time at the NSA +on Stellar Wind. +SA+NF + +## Al Cau Acting Unit Chief Evaluates Fbi Response To Stellar Wind ~{S/HF + +'When the first CAU Unit Chief arrived at FBI Headquarters in September 2002, CXS was newly establishied and most of the Section's +15-20 staff was there on temporary duty assignments. The CAU was staffed similarly at this time, but also contained some professional support employees from other divisions at FBI Headquarters. SN +The CAU Unit Chief said that the CAU's mission was to support FBI +international terrorism investigations +- al Qaeda investigations in particular +- by analyzing telephone calling activity and e-mail communications. He explamed that prior lo September 11, 2001, the FBI analyzed telephone numbers receive ield offi her sources by querying the numbers against the FBI's +. + +|database, the FBI's central b1, b3, repository for telepho scriber data. However, he said the FBI's b7E +database at that time was relatively small and had limited analytical capability. + +In the wake of the September 11 attacks, the FBI gained access to additional tools and began te utilize more soph1st1cated analytical techmques Stellar Wind was one of those new tools. + +The CAU Unit Chief said that after he was read into Stellar Wind in late September 2002, it was clear to him based on conversations with the CXS Acting Section Ch1ef that the FBI wanted to increase its participation in the Stellar Wind program. Asa counterterrorism agent in the FBI's Chicago field office, the Unit Chief had some exposure to Stellar Wind in the form of leads. He told us that he had recalled thinking the leads were "stupid" and "not sensible," He also said that he had been critical of the leads because they dlcl not provide any context to the bl, information, such as he stated that the leads did not b3, adequately explain thef +. + +rankings associated with the b7E +telephone numbers, and the leads were not suff1c1ently specific as to what action the field offlce e. + +In his view, the intelligence disseminated by the ECs was not "actionable." The Unit Chief told us that he could not figure out why FBI Headquarters was +"pushing this stuff out" after September 11, and that other agents in the field shared his views.103 {ISALSTLW//SHAOC/NFY +103 +As previously described, former NSA Director Hayden told us that immediatel +'followm the Se tember 11 tenorlst attacl(s the NSA mochfied the aenc 'S collectlon +'and that this resulted in a flood of ot numbers to the FBL. Thus, it 5 'pee";'sibl-' that +(Cont'd.) +and no guidance for how After becoming the actis the FBI was handling the was no unit that oversaw th g the NSA information should be processed by FBI +analysts, He also said that the process in-place - essentially re~typ1ng into ECs the tearline information contained in Stellar Wind reports. merely "1'egurg;tated" information that, by itself, was not actionable. + +He was not critical of the FBT analysts responsible for drafting the ECs, who simply performmed this task as directed. Rather, he believed the process suffered from 4 lack of leadership. + +He described the FBI's involvement in Stellar Wind up to this point as. + +"happenstance" and said the FBI did not have "a real good handle on it." He said that the deficiencies he identified were attributable in part to the significant resource challenges the FBI encountered after September 11, but he nevertheless considered the FBI's effort to respond to the Stellar Wmd information as "half-baked." +He said he therefore set about imnplementing changes within the CAU to better organize this effort, which he beelieved would i 1mprove the quallty of the intelligerice disserminated to FBI field offices. + +{F& +. + +## B. Fbi Increases Cooperatmn Wri:H Nsa And Imtxate L + +The CAU Unit Chief said that the first step he took to improve the FBI's involvement in Stellar Wind was to detail to the NSA one of CAU's temporary duty special agents. + +He instructed the agent to form a working group at the NSA to 1dent1fy any problems and evaluate the quality of the information provided in the NSA's Stellar Wind reports; as well as the. + +information that the FBI reported back to the NSA about tips.10% The CAU +Unit Chief said he took this step so that the NSA gained a "case agernit's perspective" on the type of information useful to FBI field offices, and also to explain to the NSA that the information that could be disseminated about the tippers should include "context" and "clarity" sufficient to justify the FBI +conducting an inquiry under the FBI's investigative guidelines,105 He said he did not believe that the NSA's interest in obscuring the "sources and methods" associated with the information had to compromise the quality of the information provided to the FBI. + +He also said that the NSA needed to FBI agents' early frustration with leads that provided telephone numbcrs was qtmbut'tble in part to the leads generated under this NSA collection activity. + +- +. + +Sy never provided the NSA any responses to the tipped information. ~tS//NF~ +understand how the FBI investigated intelligence that it received, and that FBI agents did not have to know the: spemflc sources and methods used to acqu1re information in order to effectively investigate the information. + +The CAU Unit Chief said that this liaison effort occurred over a couple of weeks, with the temporary duty agent drlvmg to the NSA daily. According to the Unlt Chief, the agent explained to:NSA persontiel what the FBI was permitted to do with certain types of information and that the NSA would receive more feedback from the FBIif the quality of the disseminable information about the tippers improved, The Unit. Chief told us that followirig this exchange the NSA improved the Stellar Wind reports by providing better information in both the compartmented and tearline portions of the reports. ~(S//NF) +In addition, the CAU Unit Chief told us that he took steps to increase cogperation within the FBI between CAU, which was part of an analytical section that supported counterterrorism investigations, and FBI +'Headquarters' Initernational Terrorism Operations Section, which was: +responsible for overseeing FBI counterterrorism investigations. The Unit Cliief said that based on his experience in the field working counterterrorism cases, he believed it was important that the CAU analysts consult with agents in Lhe operational section about'leads the CAU +proposed to set in the ECs. While he was confident the CAU analysts could identify logical investigative steps, he thought they should nevertheless coordinate with the operational personnel to see if there was. agreement and to determine whether a lead potentially could affect any ongoing operations that the CAU was not aware of. + +He also noted. that his CAU Unit Chief successors discontinued this practice, a decision he disagreed with and complained about to the Section Chief for CXS because he believed the program risked losing a measure of effectiveness.and efficiency as a consequence. {S/4NF +Another step the CAU Unit Chief took relating to the FBI's 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 activi a to assigned leads, +1% +As explained previously, thef communications had been disseminated from a subfile associated with the FBI's international terrorism investigation of the September 11 attacks. In the EC requesting that a control file be opened for Stellar Wind information, the CAU Unit Chief wrote that "a dedicated control file for this project will better serve the specuflc needs of the Spe(:1al pl'Oj(':Ct and will add an additional layer of security for the source." ++{F WS, W) +: +A control file for Stellar Wind information was-opened on September 30, 2002, and given the designation From that point forward, all ECS that. d1ssemmated Stella Wmd tips were sent in connection with the +107 +- +were classified at the Secret level and, similar to the IECs, included a vague- cxplanatwn about the source of the information and a caveat concerning its use.108 TTS#S'FW']'S%#@G%NE +107 "The Unit Chief told us that Director Mueller held a telephone conference call in Octeber 2002 with the heads of all FBI field offices and advised the Headquarters was working to-improve the process for dissemindting information to the field offices by adding beth context and clarity to the communications. + +Director Mueller expressed his expectation that the offices would act on the: information. + +Accordmg to the Unit- Chlef Dlrector Mue]ler essentlally was trymg to sell the program arid havmg spemfic d1scussmns W1th the heads of FBI fleld offlces about Stcllar W1nd +'mfo1mat1on. TS +STEW +7ol +1O +Several months later, in January 2003, the CAU Unit Chief sent an EC to all FBI field offices secking "to clarify the mission of [CAU] +. + +. + +. as well as to describe this unit's distinct role in the FBI's participation in the global +|, 4 +war on terror." The EC emphasized CAU's capabilities in examining b7,E +' +telephone calling activity and its liaison function with members of the U.S. + +Intelligence Community that are "in a unique position to provide potentially act +' +L +bl, b3, b7E + +## C. Fbi Assigns Cau Personnel To Nsa On Full-Time Basis + +The CAU. Unit Chief also assigned a team of FBI personnel to the NSA +on a full-time basis to manage Stellar Wind informationn. + +The Unit Chief told us that shortly before his temporary duty assignment to FBI Headquarters was set to.expire, he and the CXS Acting Section Chief briefed Director Muieller's assistant - and later Director Mueller - about the role they recommended that the FBI take in the Stellar Wind program. The CAU Unit Chief recommended co-locating at the NSA approximately four FBI agents and analysts with remote access to FBI information systems. + +He likened the suggestion to a "task force environment" that would introduce the FBI's investigative 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. {S/LANE)- +December 2002 and 1y February 2003 a CAU team began 1ts eo locafion at the NSA to manage the FBI 's 1nvolvement m Stellar Wind. This co-location continues today. + +- +LIRS +HEE +' + +## Vi, Oig Analysis (U) + +In analyzing the Department's and the FBI's involvement in the NSA's expanded s1gnals intelligence collection activity after the September 11 +attacks, it is important to fecognize the exceptional circumstances that existed at the time. Many Department and. FBI officials empha31zed to us the sense of crisis and alarm during this period, ~and noted the widely shared concern within the Intelligence Community that a second wave: of attacks was imminent. The Stellar Wind program was conceived and implemented -amid these challenging circumstanees, (SR +Th1s chapter described the role of Justice Department-and FBI +officials in the inception and early 1mp1ementat1on of the Stellar Wind +'program, mcludlng the Department's initial reviews-of the legality of the program. + +: +: +We believe that a significant problem during this-early phase of the Stellar Wind program was the lack of a sufficient number of Justice. + +Department attorneys read into the program to conduct an analysis of the program's legality. + +The White House and according to Gonezales, the Piesident - determined who within the Department was permitted access to the program. We believe that Attorney General Ashcroft, who met frequently with the President on national securlty matters, was in a position: to personally advocate 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 Ashcroft'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 whether he sought additional Department read-ins to assist in the legal analysis of the program, how hard he may have pr essed for these additional resources; or whether he believed he was receiving adequate legal advice about the program from Yoo alone. F8/SH NP +As described in this chapter, John Yoo was the only Department attorney read in to work on the legal analysis supporting the program from Sept,emb'er'QOOl through May 2003.109 +As described in Chapter Four, Departm'entvoffic'ialswho succeeded Yoo concluded that the analysis Yoo produced was significantly flawed and found the legal basis for aspects of the program to be lacking. We believe that reading in only one Department attorney to analyze the legality of the program impeded the Department's ability to conduct a thorough and factually accurate legal analysis, and andermined the Department's early role in the program. In Chapter Four we discuss the harm that resulted in late 2003 and early 2004 from the Department's highly restricted access to the program. FS//SH-NF) +We also described in this chapter how the harm attributable to the Justice Department's insufficient early 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 officials from OIPR and members of the FISA Court read into Stellar Wind when program-derived information started being disseminated as investigative leads to FBI field offices. + +In our view, it was foreseeable that Stellar Wind-derived information would be included in FISA applications.!10 +OIPR Counsel Baker told us that the Department's counterterrorism and counterintelligence efforts rely en good relations with the FISA Court and that candor and transparency are critical components of the relationship. + +Baker attributed the Department's record of success with FISA applications and the improved coordination between intelligence agents and prosecutors to the strong relationship that the Department built with the Court. Baker believed, and we agree, that it wotld have been detrimental to the relationship if the Court learned that information from Stellar Wind was While meeting with Ashcroft alone reflected the importance of the issues, it also placed me in a difficult position. + +I could not discuss certain matters with my DOJ superiors, or rely on the collective resources of OLC, which usually assigned several attorneys to work on an opinion. + +Operational security demanded by the war on terrorism changed some of OLC's standard operating procedures. + +## Wer By Other Means At 101. 8/ + +110 The restrictions the FBI imiposed on the use of program-derived information - +that it could be used for "lead purposes" only and not for "legal or judicial purposes" (such as affidavits) - reflected a good faith and reasonable cffort. + +However, such restrictions +ould not ensure that program-derived information would not appear in FISA applications. + +Indeed, this eventuality led to Baker's.discovery of the program. + +axs +- +e +: +included in FISA applications without the Court being told so in-advance. + +Yet we are not aware of any effort or consideration on the part-of Attorney General Ashcroft or officials at the White House to account for Stellar Wind's impact on Justice Department FISA operations by reading in any OIPR officials or members of the FISA Court. In fact, as we described in this chapter, Baker was read into Stellar Wind only after hearing from an: +FBI colleague that "there is something spooky going onTM with the collection of foreign-to-U.S. communications-and subsequently reviewing a FISA +application that contained "strange, unattributed" language-that the FBI +would not explain to him. Baker was read in when Daniel Levin, then Counselor to Ashcroft and Chief of Staff to Mueller, pressed White House officials for the clearance. (FSTFSTEWSHFOE/NF} +Moreover, White House officials initially rejected the idea of reading in members of the FISA Court, and then took no action even as Levin, who together with Ashcroft agreed with Baker that the Court needed to be informed about the program, continued to press the issue. + +It was not until Levin was required to sign and file a FISA application that Baker refused to handle because it contained Stellar Wind-derived information that the decision was made.to read in a single judge (Presiding Judge Lamberth, followed by Presiding Judge Kollar-Kotelly). + +The decisions to read in Baker and a member of the FISA Court, which in our view were unnecessarily delayed, weree important steps in preserving the relationship the Justice Department had built with the Court. However, we believe that once Stellar Wind's impact on the Jiistice Department's FISA operations became evident, limiting read-ins to a single OIPR official and a single FISA Court judge was unduly restrictive and short-sighted. This chapter described how the scrubbing procedures. + +imposed by the FISA Court and implemented by QIPR to account for Stellar Wind-derived information created concerns among some. OIPR attorneys about the unexplained changes being made to their FISA applications. The scrubbing procedures also substantially distorted the assignment of cases to FISA Court judges and by Novembge2004 resulted in Judge Kollar-Kotelly handling approximately percent of all FISA applications, In our view, once Stellar Wind began to affect 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 judges read into Stellar Wind to manage the impact should have increased. + +' +P +STLW A SEH O +- +This chapter also described the FBI's handling of Stellar Wind-derived information in the initial weeks and months of the program. The FBI's chief objective during this period was to expeditiously disseminate g program-derived information to FBI field offices for investigation while protecting the source of the infarmation and the method by which it was obtaitied. We concluded that the FBI's procedures to meet thi ieptive senerally were reasonable. The FBI personnel assigned to the, developed a straightforward process for receiving Stellar Wind bi, reports; reproducing the information in a non-compartmented, Secret-level b3, +' +' +b7E +format, and disseminating the information in Electronic Cominunications or ECs, to the appropriate field offices for investigation. + +Thek RCs disseminated to FBI field offices also placed appropriate estrictions.on how the information could be used, iristructing field offices that the information was "for lead purposes only" and could not be used for any legal ot judicial purpose. + +FBI personnel at the field offices we visited as part of our review generally were familiar with the restrictions. {&//NE +However, we found that the exceptionally compartmented nature of Stellat Wind created deficiencies in the FBI's initial process for handling program-derived information and understandably frustrated agents assigned to handle leads. The limited resources b1, b3, allocated tothe, . + +Ihampered the analysts' ability to b7E +enhance Stellar Wind information with relevant FBI or public source information before disseminatine leads to field offices for investigation. + +More significantly, the +. + +was prohibited from disclosing information that agents traditionally were accustomed to receiving with leads that required investigation. The ECs consequently suffered from vagueness about the source 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 possibly were in contact. {5HNS +'We found that the FBI 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 offices became a priority of the Communications Exploitation Section, and within it, the Communications Analysis Unit (CAU). The first chief of the bl, CAU assigned a team of FBI perso: +rork full-time at the NSA on b3, Stellar Wind and to initiate th roject to manage the FBI's b7E +participation in Stellar Wind. + +As we discuss in this chapter and in Chapter Six, these measures enhanced the FBI's knowledge about Stellar Wind operations and gave the NSA better insight about how FBI field offices investigated Stellar Wind information, which improved Stellar Wind reports and the leads that were disseminated to FBI field offices. + +FS/HSTEWSHA +O +N F + +## Chapter Four Legal Reassessment Of Stellar Wind (May 2003 Through May 2004) R A B + +By early 2003, while the operation of the Stellar Wind program had evolved, particularly with respect to the means by which intelligence from the program was provided to the FBI, the program still remained legally premised on John Yoo's November 2001 and October 2002 Office of Legal Counsel memoranda. ~FS/SHH +N - +This chapter describes the pivotal period between May 2003 and May +2004 during which Yoo's departure from the Office of Legal Counsel and the arrival of riew officials at the Justice Department resulted in a comprehensive reassessment of the Stellar Wind program's 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 contributed to the decision to place at least one aspect of the program under FISA authority. -{SDS#SLPL%LH-SH/L@G%-N-E}- +Section I of this chapter discusses how personnel changes within the Office of Legal Counsel led to a re-examination of Yoo's legal analysis, culminating in a Justice Department legal position against continuing to certify the program and the resulting dispute with the White House. Section II describes 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. {FSH-SHN + +## I Justice Department Reassesses Legality Of Stellar Wind Program Ts Hshaf- A. Overview Of Office Of Legal Counsel (U) + +One of the responsibilities of the Assistant Attorney General for the Office of Legal Counsel (OLC) 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. OLC 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. + +Executive Orders proposed to be issued by the President are reviewed by OLC as to form and legality, as are other matters that require the President's for mal approval. OLC also reviews proposed orders by the Attorney General and all regulations requiring the Attorney General's approval. + +(U) + +## B. Personnel Changes Within Office Of Legal Counsel (U) + +John Yoo advised Attorney General Ashcroft and White House officials on the Stellar Wind program from the program's inception in October 2001 +through Yoo's resignation from the Department in May 2003. Upon Yoo's. + +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 fresh review of the legal underpinnings of the Stellar Wind program. We describe in the following sections the circumstances leading to what one official described as "the great rethink" of the program. TS/ +STNE). + +## 1. Yoo's Role In The Program (October 2001 Through May 2003) (U) + +On September 11, 2001, and through November 2001, Daniel Koffsky was the Acting Assistant Attorney General for OLC. Koffsky was not read into the Stellar Wind program. + +Jay Bybee served as Assistant Attorney General for OLC from November 2001 until March 2003, when he became a judge on the U.S. Court of Appeals for the Ninth Circuit.. 112 Bybee also was never read into the Stellar Wind program. As discussed in Chapter Thtee, Jokn Yoo, a Deputy Assistant Attorney General in OLC, had sole responsibility within that office and within the Depar tment of Justice for developing the legal analysis relating to the Stellar Wind program until May +2003.113 Bybee told us he was not aware at the time that Yoo was drafting legal opinions in connection with a compartmented program. FS//SH-HH +Bybee told us that the OLC normally adheres to a tradition called the +"two Deputy rule," so that OLC op1n1ons 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 "dual-hatted." +(U) +the quality of the legal research and soundness of the legal analysis. + +In addition, Bybee stressed that the Assistant Attorney General must be aware of all opinions that issue from the OLC. Bybee said that the OLC Assistant Attorney General has an obligation to "see the whole picture" and is the only person in the office who knows the full range of issues that are being addressed by the OLC. + +Bybee also said the Assistant Attorney General is the only official in that office who can assure that OLC opinions remain consistent, Bybee stated that the Assistant Attorney General; as-a Senateconfirme'd official, has ultimate accountability for the work of the office. Bybee noted that, by contrast, the Deputy Assistant Attorney General position, though political, does not require Senate confirmation. + +(U) +Bybee told the OIG that it would not be unusual for a Deputy Assistant Attorney General such as Yoo to have direct contact with the White House for the purpose of rendering legal advice. Bybee stated that it is "not clear" whether or to what extent the Attorney General needs to be kept informed 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, but that it is "not the White House's call" to make such assignments because the White House may not be aware of what advice the OLC is providing to other Executive Branch agencies. Bybee told us that during his tenure as Assistant Attorney General he did not know that Yoo was working alone on a sensitive compartmented program, and he had no knowledge of how Yoo came to be selected for this responsibility. ) +Philbin said he believed that White House Counsel Gonzales and Vice President Cheney's Counsel David Addington had selected Yoo to draft the OLC's opinions on Stellar Wind and other national security programs, and that Yoo was the "obvious choice" to assume this role because of his expertise in war powers issues and the authority of the Commander-in-Chief. + +114 ~&/ANF- +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 Yoo 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.lls FSAASHNF +As noted above, neither Yoo nor Ashcroft agreed to be interviewed for the OIG's investigation, Other witnesses gave the OIG various accounts.of Yoo's interactions with Atterney General Ashcroft and with the White House concerning the program. + +Gonzales. told us that Yoo regularly advised Ashcroft on the legal aspects of the program so that Aslicroft could contiriue to certify it as to form and legality. Gonzales also said that it was incumbent on Ashcroft as Attorney General to satisfy the Department's legal obhgatlons regarding the program. Gonzales told us. he thus understood Yoo's opinions as representing the opinions of the Department. + +However, Gonzales acknowledged that White House officials consulted with Yoo and sought his advice without going through the Attorney General or Bybee - +Yoo's supervisor - although Gonzales also said they did not seek Department approval from Yoo concerning the Stellar Wind prograri. + +Other witnesses described their concerns regarding Yoo's direct contacts with the White House, and with Addington and Gonzales in particular. Philbin said he told Addington that Yoo's direct access to Addington on legal matters was "not a good way to run things," referring to the lack of oversight of an OLC Deputy Assistant Attorney General by a supervisor. + +Philbin stated that there was nothing wrong with assigning-a project to a subordinate, but not without the head of the office knowing what the subordinate was doing. + +(U) +Jack Goldsmith told us that when he became the Assistant Attorney General for the Office of Legal Counsel in October 2003, he learned that Yoo's contacts with the White House had had the effect of cutting the Attorney General "out of the loop," +a practice Goldsmith said he resolved not to continue with any OLC attorney. + +(U) +Goldsmith also told us the White House had wanted Yoo to replace Bybee as the Assistant Attorney General for the Office of Legal Counsel following Bybee's confirmation as 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 NSA for a briefing about the program at some point after he had drafted his November 2, 2001, legal memorandurm. + +116 +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 invelving a Top Secret compartmented detainee interrogation program. + +In-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 Yoo or participated by supervising his worl., In addition, attorneys from the Department's Criminal Division and from other +{Cont'd.) + +## 2. Philbin Replaces Yoo (U) + +Patrick Philbin joined the Department as a Deputy Assistant Attorney General in the Office of Legal Counsel on September 4, 2001,117 +He was read into the Stellar Wind program in late May 2003, just before Yoo left the Department. + +Philbin said that he, accompanied by Yoo, was read into the program by Addington in Addington's office in the Old Executive Office Building. Philbin told us that Addington provided an overview of the: +program, describing the two basic categories of collection as."coritent" and +"meta data" Philbin said that later, based on his legal analysis of the Stellar Wind program, he developed the "three baskets" terminology to describe more specifically the three types of collections. + +Philbin said he was told by Addington he was being read into the program because Yoo was leaving the Department and another attorney was needed to review the threat assessments that supported the: Presidential Authorizations and to then advise the Attorney General on recertifying the: +program as to form and legality.1 Philbin said he also was told that he and the Attorney General were the only Justice Department officials who were supposed to be involved in this "review and recertification" process. Philbin told us he was aware that OIPR Counsel James Baker had also been read into the program; however, Philbin stated that Addington told him he should not discuss the program with Baker and should only advise the Attorney General on the program. + +Philbin said he believed Addington did not want Philbin speaking with Baker about the program because Addington had always taker the position that the program should be kept as compartmented as possible. + +119 (FS/FSH-AHE +agencies were regularly consulted by Yoo in his drafting of the legal memoranda on the legality of this program. Yoo told the Department's Office of Professional Responsibility that Attorney General Asheroft determined who was allowed to work on the memoranda for the detainee interrogation program. Transcript of Interview of John Yoo By Office of Professional Responsibility, June 7, 2005, at 12. 1FS1H8FEWSHOEN +118 When asked whether he had any knowledge of the program prior to being read in, Philbin 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 work alone on this particular matter. + +Yoo did not state who had given him this instruction. + +{FSF/ ST +119 Baker told us he was not similarly advised to avoid discussions with Philbin 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 several conversations with Baker about the operational details of the program as Baker understood them at the time. + +(U) +The day after being read into the 'program,. Philbin.moved from the Office of Legal Counsel to the Office of the Deputy Attorney General to become an Associate Deputy Attorney General, although technically he still retained his OLC Deputy Assistant Attorney General position and was thus +"dualhatted Philbin took over the "national security portfolio" from David Kris, whe had recently left the Department. + +Philbin stated he was +"somewhat concerned" that he would be advising the Attorney General on the Stellar Wind program even though Deputy Attorney General Larry Thompson, Philbin's supervisor, was not read into the program. + +However, Philbin said he anticipated at the outset that his work on the program would not require & lot of his time. {S7//NF + +## 3. Initial Concerns With Yoo's Analysis (U) + +Philbin said that after he was read into the Stellar Wind program he believed he needed to do "due d111gence" to learn about the program. He said he rev1ewed Yoo's legal opinions about the program-and realized: that Yoo had omitted from his analysis any reference to the FISA provision allowmg the interception of electronic communications without a warrant for.a pemod of 15 days following a congressional declaration of war. See 50 +U.S.C. 1811. Philbin also stated that Yoo's OLC opinions were premised on the assumption that FISA did not expressly apply to wartime operat1ons ' +an assumption that from Philbin's perspectlve rendered the opinions +"problematic." Philbin said that this gap in Yoo's analysis was his first indication that the legal reasoning underpmnmg the Premdentlal Authorizations would have to be revisited. + +aFAL +Philbin said the second indication of problems with Yoo's analysis Philbin said the errors in the Yoo's talking points document represented +"a significant step toward the realization that the whole legal analy31s was screwed up." +Philbin told us he felt he could not rely on the i +"\g analysis and that he needed to "build from the ground up." + +## 6. Decision To Draft New Olc Memorandum (U) + +In August 2003, Philbin brought his concerns about the-OLC legal oplnlons to Attorriey General Asheroft. Philbin told Asheroft that there were problems with the legal analysis supporting the program | but probably not with the conclusions reached, Philbin told us that he believed that sirice: +the conclusions would not change there would be no need to "pull the plug" +on the analytically problematic aspects of the program, Philbin said he +123 Ag deseribed later in this chapter, the term "acquired" was not clarified until the March 11, 2004, Presidential Authorization. That Authorization stated that meta data was +"'acqulred ., +. when, and only when, the Department of Defense has searched for and retrieved:such header/router/addressing-lype information, including telecomimunications dialing-type data {and not when the Department obtains such hedder/router addregsing-t emfmm"mon mclum telecommumo tlons dialing-type data, such as:{IEE (b)(3) += +- +L +for retention)!" +therefore advised that Ashcroft could continue to certify the program "as to However, Philbin also recommended that a new OLC memorandum be drafted. Accordingto Philbin, Ashcroft concurred, told him to continue working on his analysis, and asked to be kept updated on Philbin's progress. After meeting with Asheroft to discuss the issue, Philbin said he began to write a new memorandum on the legality of the entire Stellar Wind program. + +115 _{LS/ +8k 1F] + +## . Reassessment Of Legal Rationale For The Program 1. Goldsmith Becomes Olc Assistant Attorney General (U) + +Jack Goldsmith told the OIG that he was recommended for the Assistant Attorney General position by Yoo after Yoo was not selected for the position. + +Goldsmith stated that during his interview for the position, Attorney General Ashcroft and Ashcroft's Chief of Staff David Ayres emphasized that the OLC Assistant Attorney General must keep the Attorney General informed of matters the Office of Legal Counsel was working on and stressed the importance of keeping thie Attorriey General +"in the loop." 'Goldsmith told the OIG that he believed Ashcroft-and Ayres raised these issues as a result of their experience with Yoo. + +(U) +'Goldsmith was selected for the position, confirmed by the Senate, and on October 6, 2003; was sworn in as the OLC Assistant Attorney General. + +v) +According to Goldsmith, he was told by Department colleagues that the procedurees OLC historically followed in drafting its opinions were changing and that the Attorney General was being circumvented in the new at he was not certain at the time that Ashcroft fully understood +(L)), B)3) +thel +. + +hecause the subject matter was "difficult." +Philbin also stated that for "client management" purposes, he needed to first make sure that he too fully understood the issues before raising his concerns to others. + +He said he did not just want to be "a naysayer" 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 to be +"carefully done to protect the President." Philbin said he therefore believed that the OLC +legal memoranda had to be rewritten to achieve that objective. + +Philbin told us he also was concerned that the program not appear like a "rogue operation," but rather as a responsible approach to collecting intelligence with adequate controls and oversight. In thisregard, Philbin emphasized that it would be important to demonstrate that the program had appropriate restrictions based on the law, and that the restrictions guarded against abuses. + +7) +process. Goldsmith said that OLC Principal Deputy Assistant Attorney General Ed Whelan. also told him that OLC's. pracedures, built on custom and practice but still "hugely important," had "broken down" prior to Goldsmith's arrival as the Assistant Attorney General. + +(U) +Goldsmith told us that he also became aware that Ashcroft sensed- - +there was a White House-Office of Legal Counsel relationship over which Ashcroft did not have full control. Goldsmith said that when he became the OLC Assistant Attorney General he immediately moved to "bring things back to normalcy" by, for example, making sure all OLC memoranda were provided to client agencies for review and input and that all memoranda were reviewed by two OLC deputies, as was the traditional OLC practice.126 +(U) +With regard to the Stellar Wind program, Philbin told us he had always intended to request that Goldsmith be read into the program after Goldsmith was confirmed by the. Senate. + +Philbin. said that he went to the White House and asked Addington (and possibly Gonzales) to have Goldsmith read into the program. + +Philbin stated that Addington told hirm that he would have been "fine" with not allowing Goldsmith to be read in, and that Bhilbin would have to justify the request before Addington would convey the request to the President. Philbin told us he explalned to Addington that he would rieed to have the head of OLC sign off on the new memorandum he was writing or the memorandum would lack credibility. + +(U/ [FeBer On November 17, 2003, Goldsmith was read into the Stellar Wind program by Addington in Addington's. office.1?7 Philbin was also present. + +On the way to the read-in, Philbin told Goldsmith to "prepare for your mind to be blown." Goldsmith told us that the read-in took approximately 5 +minutes, and when it was over he remarked to Philbin, "That doesn't seem legal memoranda should reflect the positions and expertlse of interested agencies, and he also stressed the importance of a rigorous peer review process within the office before finalizing OLC memoranda. + +(U) +127 +After Ashcroft, Yoo, Baker, and Philbin, Goldsmith was only the fifth non-FBI +Justice Department official 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 Dcpartment arid subsequent read-in to the program, he had no one to help him draft a new legal memorandum and no one other than Asheroft with whom to discuss the legal issues. + +He told the OIG that it was extremely beneficial to have another attorney working with him on the project. + +Philbin also told us he did not press the White House to read in additional attorneys durmg the summer 2003 period before Goldsmith arrived at the Department. + +so bad," Goldsmith said that 3 weeks later, after studying the matter, he would come to a "different conclusion." (U / FOYST + +## 2. Nsa Denied Access To Olc Memoranda (U//Fouq) + +Onee of the first Stellar Wind meetings Goldsmith and Philbin attended after Goldsmith's read-in 'was held in the DOJ Command Center with Addington, NSA Deputy General Counsel Vito Potenza, and NSA Inspector General Josl Brenner. Goldsmith stated that the NSA Inspector General requested a copy of the OLC legal memoranda regarding the program as part of an audit the NSA Office of the Inspector General wanted to-conduct of the program. According to Goldsmith, Addington "bit [the Inspector General's] head off," and made it clear that the memoranda would not be provided to the NSA OIG. {(FS/HSHNF}- +Goldsmith said he learned either at that meeting or shortly thereafter that NSA's Office of General Counsel also had been denied access to the OLC memoranda. Bob Deitz, the NSA General Counsel during this period, told the NSA OIG that he was never permitted to see Yoo's legal memoranda. + +Dietz stated that he called Addington several weeks after the first Presidential Authorization was signed and asked'if he cotuild see a copy of Yoo's memorandum (likely the November 2, 2001, memorandurm), and that Addington responded "no." Dietz said that Addington would only read "a paragraph or two" from the memorandum to him over a classified telephone line. Deitz stated that he never advised Yoo on his legal analysis, although He did advise NSA Director Hayden that he thought the program was legal and within the President's authority. (FS778H7NFr +, PG +o8 +B +. + +, The OIG also intervviewed} ) ( o the NSA's Associate General Counsel for Operations during +3 00's and Goldsmiith's tenure in OLC. + +b3, be BIGHGN {01 us that he was not troubled by the fact that other senior NSA +Officials had been denied access to Yoo's legal memoranda, and that he felt no need to review them, [N stated that his primary concern with respect to the legality of the program was whether "Justice was comfortable with it." Walso stated that he assumed that the Justice Department would find the program legal by resolving the tension between FISA and the President's inherent Commander-in-Chief authority based upon the dactrine of constitutional avoidance. {FS/FSTEW/SHHOC/NE) +Goldsmith told us he found it "shocking" that the NSA was not provided 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 could not "draw a good inference" from that fact. Goldsmith emphasized that under the Stellar Wind program the NSA had been asked to do something contrary to its ordinary practices, and yet was not allowed to review the legal Just1flcat1ons for being permitted to do'it. Goldsmith told us he believed that the NSA might have identified problems or mistakes inn Yoo''s analysis ear ly in th@ program had it been given access to his memoranda. + +Goldsmith told us that upon becoming the Assistant Attorney General he intended to reverse the practice of keeping OLC memorarnda closely held, and that he also decided he would seek client agency expertise in drafting these documents. (U) + +## 3. Goldsmith Joins Effort To Reassess Legal Basis For The Program {Fs//Sh-Nf + +In the two or three weeks following his read-in to the Stellar Wind program, Goldsmith reviewed several documents to educate himself about the program These included the memorandum that Philbin had already begun to draft (which included a description of how the program worked operationally), Yoo's memoranda, and older OLC memoranda concerning surveillance activities. After Goldsmith familiarized himself with the program, Goldsmith provided Philbin with add1t10na1 research a_ud helped supplement Philbin's draft memorandum. + + +1 +) +Goldsmith stated that Philbin had dene an "amazingly heroic job" in reviewing the program. Goldsmith believed "ninety-nine out of a hundred" +attorneys in Philbin's position, having been asked simply to opine as to form and legality, would have just relied on the previous Office of Legal Counsel memoranda. Goldsmith said that Philbin, however, was not convinced by those imeroratida and therefore did not rely on them. + +In addition, Goldsmith noted that Philbin sought to understand the program as it was actually 1mplemented at the NSA before advisinig the Attorney General on its +31, 0)3), (0) 0) +the exceptions to this requii*ement. Goldsmith later wrote in his legal mermorandum reassessing the legality of the program that a proper analysis the Stellar Wind P,rogram"v ((:}oldsmtit'h Memorandum, May 6, /;0(14'). + +discussed in Section 1l C below, {FS71STEW 150G/ NE +of Stellar Wind "must not consider FISA in isolation" but rather must consider whether Congress, by authorizing the use of military force against al Qaeda, also "effectively exempts" such surveillance from FISA. Goldsmith coneluded that this reading of the AUMF was correct because the AUMF +authorized the President to use "all necessary and appropriate force" against the enemy that attacked the United States on September 11, 2001, and to +"prevent any future acts of international terrorism against the Unlted States" by such enemy +- authority that has long been recogmzed to 1nc1ude the use of signals intelligence as a military tool. + +(F +Alternatively, Goldsmith reasoned that even if the AUMF did not exempt surveillance under the program from the restrictions imposed by FISA, the question was sufficiently ambiguous to warrant the application of the doctrine of constitutional av01dance and therefore should be construed not to prohlblt the actlv1ty 18l (F +" +3 153, TR +6, 2004 memmandum Goldsmith concluded that if the- +, +' +. + +. |larguments under the AUMF did not create sufficient +'blgulty as to trigger the doctrine of constitutional avoidance, FISA as applied would replesent an unconstitutional infringement on the President's exclusive authority as Commander-in-Chief in wartime to protect the nation from attack. + +## Ice Of Le; 1] Ok Stellar Wind Program (December 2003 Through January 2004)133 E E + +During late 2003, Goldsmith and Philbin continued their-analysis of the legal bases for the Stellar Wind program, During this time Philbin and Goldsmith were the only two Department officials in a position to brief the Attorney General and White House: officials on the status of their legal reassessment and its potential ramifications for the operation of the program. + +18 {FS//SH-NE- +With the existing Presidential Authorization set to expire on December 11, 2003, Goldsmith and Philbin met with Asheroft on December 8, 2003; to advise him on recertifying the program as te form and legality. Goldsmith wrote in notes that he maintained during this time period that at the meeting he and Philbin "note[d] problems gently" to. + +Ashcroft, Goldsmith told us Ashcroft was "extraordinarily supportive" of his and Philbin's efforts to reassess the legality of the program and madee clear hig view that the program had to be on solid legal footing, Goldsmith advised Ashcroft that, despite concerns about the program, Asheroft stiould certify the December 9, 2003, Authorization. Goldsmith Philbin, Goldsmith, Comey, Mueller, Gonzales, ard others. We also relied on Philbin's anc Goldsmith's contemporaneous notes, Goldsmith's chronology of events that he wrote- during this period, Mueller's Program Log documenting events in March 2004, and Attorney General Asheroft's FBI security detail log of events that occurred while Asheroft was hospitalized from March 4 through March 14, 2004, among other documents. + +(U) +later advised Asheroft to certify the January 14, 2004, Auithorization as well. + +Goldsmith told us he made these recommendations to Asheroft with the caveat that although he believed Yoo's memoranda te be flawed, Goldsmith had not yet concluded that the program itself was illegal. -(-'PSHSH%NF% +Based on Goldsrith's advice, Ashcroft certified the December 9, 2003, and January 14, 2004, Authorizations. (FS/ASH/NE) +In December 2003 Philbin and Goldsmith informed Ashcroft that they believed Comey, who was sworn in as the new Deputy Attorney Generalin December 20083, also needed to be read into the program. + +Philbin said he justified this request by noting that he would be traveling abroad for 2 +weelks later that month on an unrelated Justice Department matter.135 +(U) +Inr Deeember 2003, Goldsmith and Philbin met with Addingten and Gongzales at the White House to express their growing concerns abotit the legal underpintings for program. Goldsmith $aid he told them that OLC +wag not sure the program could survive in its current form. According to Goldsmith's notes, these discussions did not contemplate an mterruptlon of the program, although the White House represented that it would "agree to pull the plug" if the problems with the program were found to be sufficiently serious. Goldsmith told us that the White House - . typically through Addington +- told him "several times" that it would halt the program 1f the Department found that it could not be legally supported. + +{T37/SH-/M +told us he recalled thgt Addingt Goldsmniith to continue analyzmg the program and that if serious problcrns were found, the program would be shut down. {F&/STFEWASHA/OC/NE) +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 "more force" his "serious doubts and the need to get more help to resolve the issue [as soon as possible]." +Goldsmith also told Addington and Gonzales that he needed more resources to continue examining the legality of the program. They respended to this request by telling Goldsmith that Philbin should devote all of his time to the project. + +Goldsmith told us that he asked to have Comey read into the program, According to Goldsmith's notes, Addington and Gonzales "bristle[d]" at that suggestion. Goldsmith told us he made the request for Comey to be read in because hebelieved he would need the Deputy Attorney General's assistance to help "make the case" to the White House that the program was legally flawed. + +Goldsmith also stated that he wanted Comey read in because, as the Deputy Attorney General, Comey was. Philbin's direct supervisor. ~{ES/SH-NF- +We asked Gonzales when he first became aware that the Department had concerns about the legality of the Stellar Wind program. + +Gonzales stated that he remembered that sometime after Philbin 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 us he thought that Goldsmith and Philbin's review arose out of concerns about Yoo's November 2, 2001, opinion and that their review was limited to that document. Gonzales said that Goldsmith periodically told him that Philbin was reviewing the program and that some questions had been raised or that some changes to the program 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 Goldsmith about OLC's concerns until early March 2004. + +In contrast, Goldsmith told us he had been "crystal 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 Ashcroft 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. PSS +NFY +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 Addington and Gonzales pressed Goldsmith on his reason for the request and continued to express doubt that additional resources were needed. However, in late January the White House agreed to allow Comey to be 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 +7004 when the Presidential Authorization was due to be renewed. + +(U) + +## 6. Deputy Attorney General Comey Is Read Into The Program (U) + +Comey became the Deputy Attorney General on December 2, 2003, and was read into the Stellar Wind program on February 17, 2004, Comey told us that he had no awareness of the program prior to bemg read in. He said e learned after his read-in that Addington had resisted Goldsmiith and Philbin's efforts to have him read in earlier. Comey said Addington was the +"gatekeeper" for Stellar Wind and wanted to keep the program a "close hold." +) +Comey told us that NSA Director Hayden personally wanted to conduct Comey's read-in to the program. Hayden read in Comey at the Justice Cornmand Center in a briefing that took approximately 20 to 30 +minutes. Comey 'sald that at Lhe read iri, Hayden explained the "three baskets" to him. + +- +: +Comey told us that after Hayden left the Command Center, Comey and Philbin continued discussing the program. Philbin told Comey that there were problems with the legality of the program and that there were +"operational issues" as well, Comey told us that his: initial reaction to the program was "unprintable." He said he thought that the NSA could not collect the coritent of certain communications covered by the program outside of FISA authority. + +Hayden told the OIG that Comey raised no objections to him about the program upon being read in. + +(U) +Within the first month after being read in, Comey discussed the program with Ashcroft, Goldsmith, Philbin, and other Department officials who had been read in by this time, including James Baker, Cotinsel for Intelligence Policy; Chuck Rosenberg, Comey's Chief of Staff, and Daniel Levin, Counsel to the Attorney General.136 Comey said he did not recall having any discussions about the program with FBI Director Mueller during this period. + +(U) +Comey 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) +Comey also told us that Goldsmith had identified for Comey as a particular concern the notion that Yoo's legal analysis entailed ignoring an act of Congress, and doing so in secret. Comey stated that '(}'o'ldsmifh described such action as "breathtaking." Comey agreed, describing the action as "unprecedented." +(U) +- + +## D. Office Of Legal Counsel Presents Its Conclusions To The White House (U) + +On March 1, 2004, Philbin completed a first draft of a revised OLC +opinien on the Stellar Wind program. According to Goldsmith's notes, at this time Goldsmith and Philbin had not yet concluded "definitively" +that there was "anything certainly wrong" with the program, with'the possible exception of the scope o In explaining the rationale for the revised opinion, Comey described to the OIG his view of two approaches or standards that could be used to undertake legal analysis of government action. + +If the government is contemplating taking a particular action, QLC's legdl analysis will be based on a "best view of the law" standard. However, if the government already is taking the action, the analysis should instead focus on whether reasonable legal arguments can be made to support the continuation of the conduct. 187 +Comey said that because Stellar Wind was an ongoing program, Goldsmith and Philbin's analysis proceeded under the second approach. Under this approach, at this point they concluded that there were reasonable legal arg nue the collection of +2004 +sihg the sense was that "we can an aggressive legal agalysis. + +| +would require Comey said that during carly March aet there" 25 tc NN - . + +However, he said that collection of ACCOI dmg to a log Muellm kept documcntl_ g ev: +/ +, concerning the program, Comey said he was: ryng to work out these problems with the OLC and "sther interested parties."38 Mueller told us that March 1, 2004, was when he first became aware of the Department's coricerns about the legal support for the program. + +Mueller described the- +FBI as "remp1ents of information from the program," and that the dialogue as to the program s 1ega11ty was between the Department and the White House: +{5 +77 +N + +## 1. March 4, 2004: Comey Meets With Asheroft To Discuss Problems With The Program (U) + +Comey told us he met with Attorhey General Ashcroft for lunch on March 4, 2004, to discuss the Stellar Wind program. Comey reminded Ashcroft of the details of the program and said he used salt and pepper shakers and a knife to represent the three baskets during the discussiorn, According to Comey, Ashcroft agreed with Comey and OLC's assessment of the potential legal problems,.and he instructed Comey to "just fix it" and +"tell them to make the changes that need to be done." +Comey said he assumed Ashcroft meant that Comey should reach out to the NSA and the White House for the necessary changes. The Presidential Authorization in effect at the titne was due to expire on March 11, 2004. Comey said Ashcroft did not discuss with him whether he would reeertify the program as it was currently being authorized by the President. {ES//SLL/NE) +Comey also dcscri-bed Ashcroft as being frustrated, and said he was +"beating himself up" because he was "in a box" with Yoo, yet was learning from Philbin, Geldsmith, and now Comey that parts of the program were not in their view legally supportable. 139 (TS /L +SLL/NE).- +After the lunch meeting on March 4, Comey 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 extraordinary circumstances about which T would one day be questioned." Mueller said the program log was drafted "relatively contemporaneously" with the events described in it. + +(U) +of the program in December 2003, he had already certified the program as to form and George We;shington University Hospital, .Afterfbc'ing"informed that Ashcroft was hospitalized, Comey returned to Washington the next morning on-an FBI jet. + +(U) + +## 2. March 5, 2004: Comey Determines Asheroft Is "Absent Or Disabled" (U) + +On March 5, 2004, Goldsmith advised Comey by memorandum that under the circumstances of Ashcroft's medical condition and hospitalization, a "clear basis" existed for Comey to determine that "this is a case of 'absence or disability' of the Attorney Geeneral" within the meaning of +28 U.S.C. 508(a). This statute provides: +In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duities of that office; and for purposes of 'section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General. + +(U) +Goldsmith's memorandum further advised Comey that he could serve as Acting Attorney General until Asheroft's absence or disability no longer existed, and that Comey could exercise "a1] the power and authority of the Attorney General, unless such power or authority is required by law to be exercised by the Attorney General personally." See 28 C.F.R. 0. 15(a). + +Goldsmith noted in the memorandum that there are "very few duties" that can be exercised only by the 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 is your intention."140 +(V) +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 acdvised that it was not necessary to do so. The "cc" line of Goldsmith's memorandum to Comey indicated that a copy of the memorandum was also Whelan and other Department officials, among the duties that can only be exercised by the Attorney General or his designee is the authority to approve FISA applications to engage in electronic surveillance of a specific type of agent of a foreign power based on reguests of certain high level officials. + +50 U.S.C. 1804(e)(2){A). + +This section represents an exception to FISA's general conferral of authority on the Attorney General, a term that is defined to include the Acting Attorney General and the Deputy Attorney General. + +sent to White House Counsel Gonzales.!4! As discussed below, a significant dlspute between White House and Department officials later arose over whether the White House in fact received notice of Comey's decision to assume the powers of the Attorney General, whether as Deputy Attorney General or otherwise. + +(U) + +## 3. March 5, 2004: Goldsmith And Philbin Seek Clarification From White House On Presidential Authorizations (U) + +On the. afternoon of Friday, March 5, 2004 - 6 days before the Presidential Authorization then in effect was setto expire - Goldsmith and Philbin met with Addmgton and Gonzales at the White House to seek clar1f1cat10n on two key issues related to the Authorizatioris. (U / /) +First .Goldsm1th eX ressed hlS bc:hef that the +| H +' +(b)(1), (b)(3) T GIE +: +, brlefing the Presn:lent on this new legal approach to Justifymg thc. program L +- +created a serious issue. + +Gonzales stated that Goldsmith's argument on this point was that Congress had spoken on the matter by enacting FISA, but Yoo previously had opined that FISA was unconstitutional to the extent it infringed on the President's Commander-in-Chief authority to conduct electronic surveillance without a judicial warrant.142 (PS//STEWHSH/OC/NE) +Gongzales also told us that the March 5, 2004, meeting with Goldsmith and Philbin represented the first substantively detailed discussion he had with the OLC officials regarding their concerns with the existing legal analysis and their reservations about continuing the program as it had been operating. As noted above, Goldsmith said that he had informed Gonzales anid Addington about his general concerns with Yoo's legal analysis of the program as early as December 2003. APSHSHNF +Later that day on March 5, Gonzales called Goldsmith to request a letter from the OLC stating that Yoo's prior OLC opinions "covered the program." Philbin told the OIG that Gonzales was not requesting a new opmlon that the program itself was legal, but only that the prior opinions had concluded that it was. (FS/-/SEH-NF- + +## 4, March 6 To 8, 2004: The Department Concludes That Yoo's Legal Memoranda Did Not Cover The Program (V) + +As a result of Gonzales's request on March 3, Goldsmith re-examined Yoo's memoranda with a view toward determining whether they adequately described theactual collection activities of the NSA under the Authorizations. Goldsmith told us that after a brief review, he called Philbin to tell him he agreed with Philbin's assessment that Yoo's. memoranda were problematic from a factual standpoint. Philbin said that through this +1e~exam1nat10n he and Goldsmlth conf1rmed Phflbm s initial sensethat +><4)<3> B +Goldsmith's account of the response to Gonzales's request was similar: +Goldsmith also stated that his and Philbin's conclusion that Yoo's memoranda failed to adequately describe the[GEEIOF +- +meant that OLC could not tell the White House that the program could continue under the authority of those legal memoranda. + +Goldsmith stated that he and Philbin realized at this point that the prograrm had been coniducted for 2 years without a proper OLC review. + +Specifically, both Goldsmith and Philbin stated that they had always viewed Yoo's legal analysis as poorly reasoned; however, they were now realizing that Yoo's factual description of the program was inaccurate and incomplete as well, and thus did not "cover" aspects of the program. Goldsmith said Gonzales's request for ratification of Yoo's memoranda "forced [the Office of Legal legahty fllpped 144 +On Saturday, that they believed thef +' +: +: +Goldsmith -also told Comey that the Whlte House Would +'Thave to be notified of this development Comey agreed with this recommendation.. + +Later on: March 6, Goldsmith and Philbin went to the White House to +\ddington and Gonzales to conve theuconclusmns that the + +Accordmg to Goldsmi +: +181 +Gonzales "reacted calmly and said' they Would get back with us." Goldsmith told us that the White House was 1iow worried that it was "out there," +m}ea}nmg' that it was implementing a program without legal support. + +On Sunday afternoon, March 7, 2004, Goldsmith and Philbin met agdin with Addington and Gonzales at the White House.145 According to Goldsmith, the White House officials informed Goldsmith and Philbin that they disagreed with Goldsmith and Philbin's-interpretation of Yoo's memoranda and on the need to change the scope of the NSA's collection. 46 +Gonzales told us he recalled the meetings of March 6 and 7, 2004, but did not recall the specifics of the discussions. He said he remembered that the overall terior of the meetings with Goldsmith was one of trying to "find a way forward."147 {PS/HSH/NF +144 As noted in Chapter Three, Gonzales told us that he believed Yoo's memoranda described as lawful activities that were broader than those carried ouit under Stellar Wind, and that therefore these opiniens "covered" the Stellar Wind program. ~FS +SN +- +present for this meeting. + +Goldsmith's chronology indicates that only Addington and Gonzales were present. + +146 +In discussing these early 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 officials' references to "shutting down the program" extended only to those aspects of the program for 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 OLC's concerns. A PSSR +147 +As noted above, Gonzales was represented by counsel during his interview with the OIG. + +Also present during the interview because of the issue-of executive privilege was a Special Counsel to the President, Emmitt Flood. We asked Gonzales whether the President had been informed by this point in time of the OLC position regarding the lack of legal +{Cont'd.) +35 +On the evening of Sunday, March 7, 2004, Goldsrmth and Philbin met. + +with Comey in Comey's office to-again review Yoo s opinions and make sure all three agreed with the conclusion that the opinions failed to support the Stellar Wmd program as it was being implemented. Philbin said that until Gonzales's March 5 request for a letter from the OLC stating that Yoo's prior OLC opinjons "covered the program," he and Goldsrmth had 1nter1de, to recorhinend that the program be recertified qn Marcl +() +e the ontinued to work on the. neWOLOo pinion. [ +b) (0 (b)( (b)(3) +' +According to Goldsmith's chronology, there was no interaction with the White House on the issue on the. following day, Monday, March 8, 2004. + +Goldsmith wrote in his chronology of events for thisday: "Monday, March 8: Silence." +(Uy + +## 5. March 9, 2004: White House Seeks To Persuade Department.And Fbi To Support Continuation Of The Program {Shnfy + +On Tuesday, March 9, 2004, Gonzales: called Goldsmith to-attend an early mormng meetlng (at 6 OO or 6 30 a.m. ) at the Wh1te House to dxscuss Goldsrmth called Phllbm and told h1m Lo meet Goldsmlth at the Whlte House. According to Goldsmith, Philbin was allowed into the White House, but Gonzales excluded Philbin from the meeting despite Goldsmith's requests that Philbin be allowed to participate. S/ +support for the program and. (b) (5) (b)( ( ( ) +- +. + +' +- +. Flood objected to the questien on relevancy- grounds and: adv1sed Gonzales not to answer and Gongzales did not provide us an answer. However, when Gonzales commented on a draft of this report, he stated that he would not have brought Goldsmith and Philbin's "concerns" 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 this period. + +Gonzales stated he generally W uld onl bnng mattexs to the President's attention if the President could make Goldsmith said Gonzales tried first to persuade him that he and Phitbin were wrong to conclude that Yoo's memoranda did not pr ovide sufficient legal _]ustxflcatlon to cover the parts of the program that OLC had identified as problematic, but that Gonzales did not persuade him on this. + +point. Gonzales next argued for a "30-day bridge" to get past the upcorming March 11, 2004, Authorization. Gonzales reasoned that Ashcroft, who was still hospltallzed was 1ot in any condition to sign the upcoming Authorization, and that a "30-day bridge" would move the situation to.a +1p01nt where Ashcroft would be well enough to approve the program. + +Goldsrmth told Gonzales he could not agree to recommend an extension. + +Goldsmith said Gonzales noted that Ashcroft had certified the program as to form and legality for the previous two-and a half years, yet now Comey was the Acting Attorney General. Goldsmith said the implication of Gonzales's statement was that not:approving the March 11, +2004, Authorization would "undercut" Ashcroft. Goldsmith said he made clear to' Gonzales that Ashcroft was "supportive" of his and Philbin's analysis. Goldsmith's notes from the meeting also indicate that Gonzales stated that he did not "want to face" Ashcroft in the hospital. Goldsmith told us he recommended to 'Gonzales that he:not visit Ashcroft.150 +Goldsmith said his discussion with Gonzales lasted about 1 hour. + +Philbin was then brought into Gonzales's office and the issues were discussed again. According to Goldsmith's chronology, nothing was resolved during the meeting. + +(U) +At noon that day, another meeting was held in Andrew Card's office at the White House. According to Director Mueller's program log, Mueller, Chief of Staff Card, Vice President Cheney, CIA Deputy Director John McLatighlin, Hayden, Gonzales, and other unspecified officials were present. + +Comey, Goldsmith, and Philbin were not invited to this meeting. + +Mueller described this gathering as a "pre-meeting" in anticipation of another meeting that was to be held later that afternoon in which the Justice Department officials (Comey, Goldsmith, and Philbin) would be participating.15? + +(U) +According to Mueller's notes, a presentation on the value of the Stellar Wind program was given by CIA and NSA representatives. 152 It was th +: +'explained to the group that Comey "has problems" wit Q')( e Mueller's riotes state that Vice President Cheney suggested +"that "the President may have to reauthorize without [the] blessing of DOJ," +to which Mueller responded "I could have a problem with that," and that the FBI would "have to review legahty of continued part1c1pat10n in the program." +A third meeting was held at the White House that afternoon, at 4: 00 +p.m. + +The meeting included Comey, Goldsmith, and Philbin, in addition to Vice President Cheney, Card, Addington, Gonzales, Hayden, Mueller, CIA +General Counsel Muller, McLaughlin, and approximately 10 NSA analysts. + +Gonzales told us the meeting was held to make sure that Comey understood what was at stake with the program and to demonstrate its value. {S//NF} +At the beginning of the meetmg the NSA analysts made a presentation to-Comey, Goldsmith, and Phfl'- +Said presentation consisted of harts showing the chalnmg el +, +'capabilities that could be generated from Stellar Wind- der1ved 1nformat1on as well as a description of "success stories" resulting from the program. Comey told us that the cases the analysts highlighted were not in his view the Stellar Wind sucecesses that the analysts claimed, and that he felt "the NSA had no good stories to tell about the program."!58 Comey also told us that the: collection of content communications under Stellar Wind was somewhat duplicative of existing FISA coverage, and that only the meta data collectiont under baskets +2 and 3 represented truly new- capabilities, However, Comey said he did not challenge the analysts on the assertion that Stellar Wind was. a critical anti-terrorism tool because the value of the program was not his prlrnary concern, Rather, Comey said he was willing to concede the program's value, and that his concern was with its legality. 1PS7/7/3TEW//ST//OC/NF +Goldsmith told us that he did not believe it was his place to judge the value of the program from an intelligence-gathering standpoint. Goldsmith told us he found persuaswe 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 +|were cited as bl, b3, bs, +152 Mueller's notes indicate thaty +' +riefly in this chapter and b7E, b7C +examples during the presentation. + +We discus +*m Chapter Six. (DSA{STLW//SHHOCHNE +bs, +(TS// QLDW//DL//U\,/ L'JI') +The NSA analysts were excused after their presentation and the meeeting continued. + +Comey said Vice President Cheney stressed that the program was "critically important" and warned that Comey would risk +"thousands" of lives if Comey did not agree to recertify it. Comey said he told those at the meeting that he, as the Deputy Attorney Generalexeraising +{1 .r's:o'f the Attorney General, could support rea'uthori:z;i'ngi'1 +Comey also told us-he was certain the Whit_e House understood him to be the 2 +ng in Attorney General Asheroft's stead during this meeting. + +(U) +Gonzales told us that he came away from the meeting with the ot Comey DMIOREE +S + +## G. Conflict 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 sense of pressure. and anxiety that pervaded the discussions in March 2004. + +For instance, Comey said discussions during the meeting at the White House on March 9 becarme heated as he sought to convey to everyone how difficult it was for the Department to take the position it was taking, and how hard the Department officials were working to find a selution. Comey also stated that Vice President Cheney was +"understandably friustrated" because the Department was changing its advice to the White House about the program. + +(U) +Goldsmith also recalled that at one point during these meetings with the White House, Addington told him that if he natrowed the Stellar Wird program Goldsmith "will have the blood of 100,000 American lives on his hands,"{S/NF- +Goldsmith observed to us that from the White House's point of view, due to the timing of the events, and in partlcular with Ashcroft in the hospital, it appeared to the White House that a "palace coup" was takirig place at the Department of Justice. + +Goldsmith said that this perception was somewhat understandable under the circumstances, +(U) +Philbin also stated that tensions were high during this period and that the Department and White House "started to divide into camps." +Philbin added that Department and White House officials were "starting to attribute motives" to each other. + +Philbin said he thought Addmgton came to beheve that Comey was opposed to recertifying the program for "political reasons;' +and that Comey wanted to be on the "politically right" side of the dispute. + +(U) +Comey said that his dealings with Gonzales, Card, Addington, and others at the White House were generally civil, Comey acknowledged that there was tension between the Department and the White House during the March 2004 period, but believed that it resulted primarily from differences in legal perspectives. + +(U) + +## I1. White House Continues Program Without Justice Department's Certification {Fs//Sh/Nf)- + +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 Attorney General Comey 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 Department's. support, precipitating a serious confrontation between White House and Departiment officials. {FSHSTEW//5H76 + +## A, White House Counsel Gonzales Certifies March 11, 2004, Presidential Authorization {F&//Sh-Af) 1. March 10, 2004: Office Of Legal Counsel Presses For Solicitor General To Be Read Into Program (U) + +Goldsmith, Philbin, and Comey met in the early afterncon of March 10, 2004, to discuss the meeting at the White House the day before and how the Department should proceed. Goldsmith and. Phi reconfirmed their position to Cor +; +' +el Goldsmith and Philbin also recommended to Comey that Solicitor Gerieral Theodore Olson be read into the program. Goldsmith told us that Olson had been at the Department for a long time and had valuable experience and credibility. Goldsmith said that given the importance-of the decisions being made at the Department concerning the program at this tirne, he believed it was imperative to have Olson read in. + +9] +Comey agreed with Goldsmith and Philbin, and he directed Goldsmith to call Gonzales to feaffirm the Department's position on the program and also to request that Olson be read in. + +(U) +Goldsmith called Gonzales at 2:20 p.m. o the Department could not support the legality off +.. + +B +B +< then being implemented under the program. + +Gioldsmith also told Gonzales of the "urgent need" for approval to read Olson into the program. + +Goldsmith's notes indicate that he called Gonzales twice that day with the request to have Olson read in, but by early evening had not heard back from Gonzales. {FSFHSEEW/HSHOCSNE} + +## 2. March 10, 2004: Congressional Leaders Briefed On Situation (U) + +Gonzales told us that alter 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 +p.m., Gonzales and other White House and intelligence agency officials, including Vice President Cheney, Card, Hayden, McLaughlin, and Director of Central Intelligence George Tenet, convened an "emergency meeting" with Congressional leaders in the White House Situation Room. + +The congressional leaders in attendance were Senate Majority and Minority Leaders Bill Frist and Tom Daschle; Senate Select Committee on' Intelhgence Chairman Pat Roberts and Vice Chairman Jay Rockefeller; Speaker of- the House Dennis Hastert and House Minority Leader Nancy Pelosi; and House. + +Permancnt Select Committee on Intelligence Chair Porter Goss.and Ranking Member Jane Harman. This congressional group was known informally as: +the "Gang of Eight." +(U) +No.officials from the Department were present at the meeting. When we asked Gonzales whether the White House had given any consideration to inviting Department officials to attend, Gonzales declined to answer on the advice of the Special Counsel to the President, who was present during Gongzales's interview with the O1G.155 +(U) +Gonzales told us that President Bush also directed him to +"memorialize" the mecting, although Gonzales said he could not recall whether the President directed him to do so before or after the meeting. + +Gonzales did not take notes during the meeting. + +Rather, he said he wrote down his recollection of the meeting within a few days of Wednesday, March 10, probably, according to him, the following, weekend.156 Gonzales said that, with the exceptlon of & single phrase discussed below, he wrote: +his notes in one sitting in his White House office. + +(U) +The notes indicate that Presiderit Bush appeared briefly at the start. of the meeting to explain how important the meeting was. + +Vice President Cheney, who chaired the meeting, gave a general explanation of the program and indicated that the purpose of the meeting was to "discuss potential legislation to continue the 'prog1 am," According to Gonzales's notes, Hayden then cxplamed the. + +under the program: +155 I-Iowever when Gonzales commented on a draft of this report, he stated that the Department was not invited to the meeting because the purpose- of the meeting was'to advise the congressional leaders that a legislative fix was necessary, not to describe or resolve the legal dispute between the Department and the White House. + +(U/ [EOUD)} +Attorney General in 2005, he took the notes, which contained TS/SCI information relating to the Stellar Wind program, from the White House and improperly 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 office that was not cleared for storage of TS/8Cl material, The OIG also determined through this investigation that Gonzales imiproperly stored several other TS/SCI documents in the safe near his office, many of which concerned Stellar Wind. The OIG's report, entitled "Repert of Inve'ahgatxon Regardmg Allegations of Mishandling of Classiflied Decuments by Attorney General Alberto Gonzales," +was released by the OIG on September 2, 2008, and can be found at http:/ /www.usdoj.gov/ oig/special/s0809/index htm. +S77NFJ" +fe and the remaining participants discussed the need for legislation so tha +,sgintclligg:nc'e' collection activities could continue. + +- +Gonzales's notes indicate that when he was asked at the meeting why Comey was "reluctant" to sign the Authorization; Gonzales responded, "r said it was not really my place to representf[eomey:'s]j'_positiOn,'-but I believed that he did not feel that the President's Constitutional authority would not +[sic] override FISA." The notes do not indicate what else was discussed about the basis for the Department's concerns about the legal support for the program.* +The notes indicate that Andrew Card stated that "it would be hard to explain if another attack.occurred and we could have stopped it with this tool." Gonzales's notes then state: + +- +Andy asked if anyone had any reservation-and no one spoke up +raising an objection +- +The VP said that what I am hearing is that we should go forward with +the program for a period of 30-45 days and see if there was.a +legislative fix. {F877/SH7NF +The notes indicate that Vice President Chieney read aloud proposed language of new legislation. quever, the notes do not deseribe the proposed legislation that was discussed. + +(U) +te Auia -" should be According to Gonzales's notes, the reactions and comments of the congressional leaders were as follows: Both Hastert and Roberts "said they the tool." although according to the notes Hiastert +"kept + +I +(5)(1), (b)(3) +. + +' += +- +oberts said that if Comey would not certify fired." Harman suggested that another branch of governmerit "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 FISA Court +"gpprove or develop the guidelines to protect privacy rights." The notes state that Daschle felt it would be "impossible to get [new legislation] passed without it becoming very pub'lic_-."" Rockefeller was "concerned about privacy safeguards" and was advised of "the 39 steps followed [by the NSA] to make sure privacy concerns were addressed." According to the notes, Pelosi. + +expressed concern about giving "total discretion" to the President and discussed the need for the proposed legislation to be periodically renewed by Congress-and that it not be permanent. + +F5 +SR +SHLOC/NEY +Gonzales told us he initially left a gap in one section of the notes where he described Pelosi's comments. He stated that a day or so later, after recalling what she had said at the meeting, he filled in the gap with the following italicized language: "Pelosi said tell DAG that everyone is comfortable and the program stiould go forward."158 +(U) + +## 3. March 10, 2004: Hospital Visit (U) + +Gonzales told us that following the meeting with the congressional leaders during the afterrioon of March 10, President Bush instructed him and Card to go to the George Washington University Hospital to speak to Ashcroft, who was recovering from surgery in the intensive care unit. The events that followed, which are recounted below, are based on notes from Ashcroft's FBI security detail, Goldsmith's notes, and Mueller's program log; +the OIG's interviews of Gonzales, Comey, Goldsmith, Philbin, and Mueller; +' +and Comey and Gonzales's congressional testimiony,159 +9)) +At 6:20 p.m. on March 10, Card called the hospital and spoke with an agent in Ashcroft's FBI security detail, advisi-ng_th'e agent that President v Bush would be calling shortly to speak with Ashcroft. Ashcroft's wife told +158 When Gonzales testified before the Senate Judiciary Committee on J uly 24, +2007, he essentially described the congressional leaders' reactions to-the Mareh 10,2004, Gang of Eight briefing as he did in his handwritten notes of the briefing, stating, "The consensus in the room from the congressional leadership is that we should eontinue the activities, at least for now." However, after Gonzales testified, Representative Pelosi, Senator Rockefeller, and Senator Daschle issued statements to the media sharply disputing Gonzales's characterization of their statements 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, 2007). + +Pelosi's office 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, Bloomberg.com (July 24, 2007). + +We did not attempt to interview the congressional leaders and obtain their recollections as to what was said at this meeting, because thiswas beyond the scope of our review, +(U) +159 Comey described the events surrounding the hospital visit in testimony before the Senate Judiciary Committee on May 15, 2007, Gonzales testified about these issues before the Senate Judiciary Committee on July 24, 2007. + +As noted above, Attorney General Asheroft and Card declined our request to be interviewed. + +Ayres, Asherolt's Chief of Staff at the time, also declined our request for an interview. + +(U) +the agent that Ashcroft woiild not accept: the call. Ten minutes later, the agent called Ashcroft's Chief of Staff David Ayres through the Justice Command Center to request that Ayres speak with Card about the President's intention to call Ashcroft. The agent conveyed to Ayres Mrs. + +Ashcroft's desire that no calls be made to Ashcroft for another day or two.160 +Ayres told the agent he would relay this message to Card. 1) +N +However, at 6:45 p.m,, Card and the President called the hospital and, according to the agent's notes, "insisted on speaking [with Attorney General Ashcroft]." According to the agent's notes, Mrs. Ashcroft, rather than Attorniey General Ashcroft, took the ca'll'from Card and the President. + +According to the agent's notes, she was informed that Gonzales and Card were coming to the hospital to see Ashcroft regarding a matter involving national security. + +(U) +At approximately 7:00 p.m., Ayres was advised, either by Mrs. + +Asheroft or a member of the Attorney General's security detail that Gonzales and Card were on their way to the hospital. Ayres then called Comey, who. + +4t the time was being driven home by his security detail, and told Comey that Gonzales and Card were on their way to the hospital. Comey told his driver to rush him to the hospital. According to Comey, his driver activated the emergency lights on the vehiele 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 people as possible to the hospital immediately." Comey then called FBI Director Mueller, who was having dinner with his wife and daughter at a restaurant, and told him that Gonzales arid Card were on their way to the hospital to see Ashcroft, and that Ashcroft was in no coridition to receive guests, much less make a decision about whether to continue the program, According to Mueller's program log, Comey asked Mueller to come to the hospital to +"witness [the] condition of AG." Mueller told Comey he would go to the hospital right away. + +(U) +At 7:05 p.m., Ayres was notified by an agent on Ashcroft's security detail that Comey was en route to the hospital. Ayres called the agent back at approximately 7:20 p.m. 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 U.S. Secret Service agents who +160 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) +would be accompanying Gonzales and Card to remove Comey from Ashcroft's room. The FBI agent told Ayres that the Attorney General's security detail would "fully back" Comey and that "this is 'our scene'." +(U) +Philbin said he was leaving work that evening when he received a call from Comey, who said that Philbin needed to get to the hospitdl right away because Gonzales and Card were on their way there "to get Ashcroft to sign something," Comey also directed Philbin to call Goldsmith and tell him what was happening at the hospital. + +Philbin called Goldsmith from a taxi on his way to the hospital. Goldsmith told us he was home having dinner when he received Philbin's call telling him to go immediately to the hospital. + +(U) +Comiey arrived at the hospital betweeri 7:10 and 7:30 p.m.16! In his congressional testimony, Comey said he ran up the stairs with his security detail to Ashcroft's floor, and he entered Ashcroft's room, which he described as darkened, with Ashcroft lying in bed and his wife standing bv the bed. Comey said he began speakirng to Ashcroft, "trying to orient him as to time and place, and try to see if he could focus on what was happening." +Comey said it was not clear that Asheroft could focus and that he "seemed pretty bad off.]" Comey stepped out of the room into the hallway and telephoned Mueller, who was on his way to the hospital. With Mueller still on the line, Comey gave his phone to an FBI agent on Ashcroft's security detail, and according to Comey Mueller instructed the agent not to allow Comey to be removed from Ashcroft's room "under any circumstances." +(U) +Goldsmith and Philbin arrived at the hospital within a few minutes of each other. Comey, Goldsmith, and Philbint met briefly in an FBI "command post" that had been set up in a room adjacent to Ashcroft's room. Moments later, word was received at the command post that Card and Gonzales had arrived at the hospital 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-off" between the FBI agents and the Secret Service agents might ensue. + +(U) +Comey, Goldsmith, and Philbin entered Ashcroft's room. Goldsmith described Ashcroft's appcarance 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 appeared to have lost a lot of weight, was "gray in the face," and was "almost out of it" because he was on morphine. Comey stated that Ashcroft was +"clearly medicated." +(U) +Comey testified that he sat in an armchair by the head of Ashecroft's bed, with Goldsmith and Philbin standing behind him; Mrs, Ashcroft stood on the other side of the bed holding Asheroft's arm. No security or medical personnel were present. + +(U) +Goldsmith's notes indicate that at this point Comey and the others advised Asheroft "not to sign anything" +(U) +Gonzales and Card, unaccompanied by Secret Service agents, entered Ashcroft's hospital room at 7:35 p.an., according to the FBI agent's notes.162 +The two stood across from Mrs. Asheroft at the head of the bed, with Comey, Goldsmith, and Philbin behind them. + +(U) +Gonzales stated that when he entered the hospital room, Ashcroft was in the bed and his wife was "at the 11:00 position." Gongzales said to us that he was unaware that Comey, Goldsmith, and Philbin were also present in the room until Card told him this later, Gonzales told us that he could +"sense" that others were in the room, but that he was not sure who, because his focus was on Asheroft. Gonzales said he carried with himin a manila envelope the March 11, 2004, Presidential Authorization for Ashcroft to sign. + +(U) +According to Philbin, CGonzales first asked Ashcroft how he was feeling. Ashcroft replied, "Not well." Gonzales then said words to the effect, +"You know, there's a reauthorization that has to be renewed . + +. .." +(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. Comey 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: +' +162 Gonzales told us he and Card arrived in Ashcroft's hospital room at 7:20. + +(U) + +.. +. Attorney General Ashcroft then stunned me: +He lifted his +head off the pillow and in very strong terms expressed +his view +of the matter; rich in both substance +and fact, which stunned +me, drawn from the howrlong meeting we'd had a week earlier, +and in yery strong +terms expressed himself, and then laid his +head back down +on the pillow. He seemed spent. +... And as +he laid back down, he said, "But that doesn't matter, becauise +I''m not the Attorney General, There is the Attorney 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 from the room. (U) +Comey also testified that "I thought I had just witnessed an effort to take advantage of a very sick man, who did not have the powers of the Attorney Gerieral because they had been transferred.to me." (U) +Philbin described to us Ashcroft's statements. to Gonzales and Card in the hospital room, stating that Ashcroft "rallied and held forth for two minutes" about problems with.the program as had been explained to him by Comey, and that Ashcroft agreed with Comey. Gonzales told us that he did ot recall Asheroft stating that he agreed with Comey. Goldsmith's notes indicate that Ashcroft argued in particular that NSA's collection activities exceeded the scope of the Authorizations and the OLC o emoranda, stating that he was troubled by| +' +' +163 According to voldsmith's notes Ashcroft also said thatitwas: +-oubling that| +, people in other agencies" had been read into the program, but that Ashcroft's own Chief of Staff, and until recently the Deputy Attorney General, had not been allowed to be read in. 'Gonzales told us he responded to Ashcroft that this was the President's decision. {BS/8H/NF +According to Goldsmith's notes, Ashcroft also complained that the White House had "not returned phone calls," and that the Department had been "treated badly and cut out of [the] whole affair." Asheroft 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 +.-0011gr'ssiQnal'vlcad'el*ship;was that it should contiriue. Gonzales said he therefore felt it was very important that Ashcroft be told what was: +happening, adding 1f [ were the Attorney General I would damn sure want to know." +(U) +| +In his July 2007 congressional testimony, Gonzales also explained the visit to the hospital by stating that it was "imnportant that the Attorney General knew about the views. and recommendations of the congressional leadership; that as a former member of Congress and as -someone who had authorized these activities for over two yeafs? that it might be irnportant for him to hear this information. That was the reason that Mr. Card and +1 went to the hospital." Gonzales further testified, "We didn't know whether or not he knew of Mr. Comey's position and, if he did know, whether or not he agreed with it." Gonzales also disputed Goldsmith's account that Asheroft stated that he was "not prepared to sign, anything," and referred us to his July 2007 testimony where he stated: +(U) +' +My recollection, Senator [Feinstein], is - and, of course, this happened some time ago and people's recollections are going to differ. My recollection is that Mr. Asheroft did most of the +| +talking. + +At the end, my recollection is, he said, "I've.been told it would be improvident for me to sign. But that doesn't matter, because I'm no longer the Attorney General." +(U) +' +Gonzales told us that he and Card would not have gone-to the hospital if they believed Ashcroft did not have the authority to certify the Authorization and told us that as soon as Ashcroft stated he no longer retained authority to act, Gonzales decided not ask Ashcroft to sign the Authorization. + +In his congressional testim_onyGonzales stated, "Obvicusly there was concern about General Asheroft's condition +. + +. + +. [We knew, of course, that he was ill, that he'd had surgery." Gonzales also stated that +"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." +He also testified, "There's no governing legal principle that says that Mr. + +Ashcroft +[ +. + +. + +. + +] If he decided he felt better, could decide, T'm feeling better and I can make this decision, and I''m going to make this decision,"!64 +(U) +Moments after Gonzales-and Card departed, Mueller arrived at the hospital. According to Mueller's notes, outside the hospital room Comey informied him of the exchange that had occurted in Asheroft's room, and in particular that Ashcroft had stated that Comey was the Actling Attorney Gerieral, that "all matters" were to be taken to Comey, but that Ashcroft supported Comey's position regarding the program. Mueller's notes also state: "The AG also told [Gonzales and Card] that he was barred from obtaining the advice he needed on the program by the strict compartmentalization rules of the (White House]." +(U) +Mueller's notes indicate that Comey asked Mueller to witness Ashcroft's condition, and requested Mugller to inform the FBI security detail that no visitors, other than family, be allowed to see Ashcroft without Mueller's consenit. Both Mueller's notes and the security detail log indicate that Mueller instructed the detail that under no circumstances was anyone to be allowed into Asheroft's room without express approval from either Mrs, Ashcroft or Mueller. + +(U) +At approximately 8:00 p.m. Mueller went into Ashcroft's room for 5 to +10 minutes. + +Mueller wrote in his p1 ogram log: "AG in chair; is feeble, barely articulate, clearly stressed." +(U) + +## 4., March 10, 2004: Olson Is Read Into The Program (U) + +According to Comey's congressional testimony, while he was speaking with Mueller prior to Mueller's departure from the hospital, an FBI agent interrupted, stating that Comey had an urgent telephone call from Card. + +Comey testified that he then spoke with Card, who was very upset and demanded that Comey come to the White House immediately. Comey testified that he told Card that based on the conduct 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) +Comey and the other Department officials left the hospital at 8:10 +p.m. + +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 Justice Department after being contacted at a dinner party. + +Comey told us that he believed there was an urgent need to have Olson read into the program because he was confident Olson would agree with Comey and the others that Yoo's legal analysis was flawed and that Olson would be a strong ally in.the matter because of Olson's respected intellect and credibility. + +(U) +During this meeting at the Justice Department, a call came from Vice President Cheney for Olson, which Olson took on a secure line in Comey's office while Comey waited outside. Comey told us he believes Vice President Cheney effectively read Olson into the program during that conversation. + +(U) +Comey and Olson then went to the White House at about 11:00 p.m., and met with Gonzales and Card that evening. Comey testified that Card would not allow Olson to enter his office. Comey relented and spoke to Card alone for about 15 minutes.. At that point, Gonzales arrived and brought Olson into the room. According to Comey, he communicated the Department's views on the dispute and that the dispute was not resolved in this discussion. Comey stated that Card was concerned that he had heard reports that there was to be-a large number of resignations at the Department. + +(U) +Gongzales told us that he recalled that Comey met first with him and Card while Olson waited outside the office, 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.165 +(U) + +## 5. March 11, 2004: Goldsmith Proposes Compromise Solution (U) + +According to a memorandum to the file drafted by Goldsmith, he met with Gonzales at 6:30 a.m. the next morning, March 11, 2004, at the White House to discuss a proposal under which the Department could support the program, which is 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 only on a limited review of it. (RSFSHANE)- +Goldsmith told us that he did not specifically recall this meeting. + +Gonzales told us that he recalled conveying to Goldsmith and Philbin at some point during this day that the President had decided he had the constitutional authority to continue the program, Gonzales said he also expressed to Department officials the sentiment that the Department should continue seeking a way to "get comfortable" with the President's decision. + +(U) + +## 6. March 11, 2004: White House Asserts That Comey's Status As Acting Attorney General Was Unclear (U) + +Goldsniith told the OIG that later during the morning of March 11, +2004, he received a call from Deputy White House Counsel David Leitch. + +Goldsmith said Leitch was "yelling and screaming" about the White House: +not being informed that Comey was the Acting Attorney General. Goldsmith told the OIG that Leitch made two specific complaints. + +First, Leitch claimed that the White House had never received 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, 2004, memorandum Goldsmith had sent to Gonzales entitled "Determination that Attorney General is absent or disabled." This confirmation sheet subsequently was sent to Leitch.166 +(U) +Leitch's second claim was that the OLC memorandum was ambiguous because it.did not specify whether the Attorney General Wasy.determi_ned to. + +be "absent" or "disabled," a difference for purposes of the Attorney General's authority., According to Goldsmith, if the Attorney General was "absent," +the Deputy Attorney General could act as. the Attorney General, although the Attorney General would retain his authority and technically could overrule the Deputy. + +If the Attorney General was "disabled," the Attorney Getneral was divested of all autherity. Goldsmith said he responded to Leitch by noting the inconsistency of the White House making this second clajm because, according to Leitch, it had not received Goldsmith's memoraridum in the first instance. + +(U) +Goldsmith said he also told Leitch to "lay off" the complaints, but that Leitch did not. Goldsmith said he therefore reluctantly sent a detailed e-mail to Leitch on March 11 to support the Department's contention that it had properly informed the White House of Ashcroft's status. Goldsmith stated that in the e-mail he also made the point that his conversation with Gonzales on March 9, 2004 (discussed above) was premised on Gonzales's knowledge that Ashcroft was ill and that Comey needed to authorize a +30-day bridge" until Ashcroft was well enough to sign the Authorizations again.167 +(U) +Gonzales told us that he had no recollection of having seen OLC's March 5, 2004, memorandum entitled "Determination that Attorney General is absent or disabled." +As described above, Gonzales stated that he and Card would not have gone to the hospital if they believed Ashcroft did not have the authority to certify the Authorization as to formand legality. + +Gonzales also said that while he believed Comey would be making the decision to recertify the program, this did not mean that Ashcroft had relinquished his authority or had been "recused" 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.168 FSHSHNFY- +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 +U.S.C. 508(a). + +Leitch's clarification stated that the Rosenberg memorandum had been in draft form. + +(U) +167 The QIG searched for but was unable to find this e-mail from Goldsmith to Leitch, +(U) +168 +During his July 24, 2007, testimony before the Senate Judiciary Committee, however, Gonzales stated that he thought there had been newspaper accounts of Comey's assumption of the Attorney General's duties and stated that "the fact that Mr. Comey was the acting Attorney General is probably something that I knew of." Gonzales testified that he was aware that Ashcroft was ill and had undergone surgery, but Gonzales stated that Ashcroft "could always reclaim" his authority. + +(U) + +## 7. March 11, 2004: Gonzales Certifies Presidential Authorization As To Form And Legality (Ts//Slh/Nf) + +'On the morning of March 11, 2004, with the Presidential Authorization set to expire, President Bush signed a new Authorization, 182 +In'a departure from the past practice of having the Attorney General certify the-Authorization as to form and legality, the March 11 Authorization was certified by White House Counsel Gongzales. The March 11 Authorization also differed markedly from prior Authorizations in three other respects. + +The first significant difference between the March 11, 2004, Presidential Authorization and prior Authoerizations was the President's explicit assertion that the exercise of his Article II Commander-in-Chief authority "displace[s|the provisions of law, including the Foreign Intelligence Surveillance Act and chapter 119 of Title 18 of the United States Code lincluding 18 U.S.C. 2511(f) relating to exclusive means), to the extent of +. + +any conflict between the provisions and such exercises under Article II[,]" +'As discussed above, FISA and the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.8.C. 8 2510-2521 (generally referred to as Title III) are by their terms the "exclusive means by which electronic surveillance, as defined ini [FISA], and the interception of domestic wire, oral, and electronic communications may be conducted." +18 U.8.C. + + 2511(2)(f). This new language was based on the same legal rationale Yoo first advanced in support of the Stellar Wind program - that FISA cannot be read to infringe upon the President's Commander-in-Chief authority under Article 11 of the Constitution during wartime. +F8//STLW//SI//QC/NF) +' +Subsequent Presidential Authorizations did not include this language diseussing the legal bases for the program. Steven Bradbury told the OIG +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 Philbin's analysis, and to protect those who had been implementing the program under the prior OLC opinions. (FSALSLLNE +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 e-mail meta data were clarified. The underlying language for "acquiring" both telephony and e-mail meta data remained as it had been, giving the NSA authority to: +acquire; with respect to-a communication, header/router/addressing-type information, iricluding telecommuniications dialing-type data, but not the contents:of the communicalion, whern (i) at leastione party 1o such communication is outside the United States, (ii) no party to such communication is known.to be a citizen of the United States, or (iii) based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are specific and articulable facts giving reason to believe that.such communication relates to international terrorism; ot activities in preparation therefor, +{FS/7SFk, E: +C/NE +Presidertial Authorization, March 11, 2004, para. 4(b). However, this language wasnow qualified by the following two.subparagraphs: +- +(i) the Department of Defense may obtain and retain header/router/addressing-type information. includi T +; +alinoctvoe data, +(EEEEIE) +[brovided that search +" and retrievs Theader/rout er/addressing-type information, ircluding telecommunications dialing-type data, shall occur only in accordance with this authorization; and +] +(ii) header/router/addressing-type information, including telecommunications dialing-type data, is "acquired" for purposes of subparagraph 4(b) above when, and only when, the Depattment of Defense has searched for and retrieved such header/router/addressing-type information, including telecommunications dialing-type data (and riot when the Department obtains such header/router/addressing-type ini tion.d ine telecammunications diglino-tvne data, ARkzvikae e + +## Id. At Para. 4(B)(I) 8 (Ii). (Es/A/Stlw/H/Shocnf) + +In essence, the March 11, 2004, Authorization for the first time sought to make clear that the NSA could "obtain and retain" telephony and c-mail meta data (baskets 2 and J)[PEGIGE +hut the meta data collected could only be queried ("acquired") in accordance with any of the three conditions set forth in paragraph 4(h).'70 This language clarifying what the term "acquire" +meant was included in-every successive Presidential Authorization for the remainder of the program. [TS//STLW//SL//OC/NE} +Moreover, the President asserted in the March 11 Authorization that the newly drafted distinction between "obtaining and retaining" meta data versus "acquiring" the meta data "reflects the consistent course of conduct under such Presidential Authorizations that has been knowr to and authorized by me, and shall be deemed to have been a partof such Presidential Authorizations as if [paragraph 4(b)(i) & (ii)] had been explicitly included in each such Presidential Authorization at the time of presidential signature; any action taken prior to presidential signature of this authorization that is. consistent with the preceding sentence is ratified and confirmed."7! + +Id. at para. 4(b). + +(LS +ST/ +ST /OGN +According to Comey and Philbin, this new language was Addington's +"fix."172 Philbin said he believed the new language was "sufficient" to address the Department's concern that the Authorizations dicl not +'adcquatelyides,'{:ribe the (%), (B)(1), ,(b}.@)' +. + +being carried out.bi- the NSA, although he believed the new g +"cumbersome." +In his OIG interview, Gonzales declined to explain the significance of this new language, based on an assertion from the Special Courisel tothe: += +& o O +% % +P +FE s sy s o The-third significant departure from prior Authorizations was the inclusion of & statement that "the Attorney General of the United States approved as to form and legality [all prior Presidential Authorizations] +authorizing the same activities as are cxtended by this authorization[]" 1d. + +'However, Gonzales told us that he +{0 +Departinent understood that the NSA was Sihat Philbin had been to the NSA several times and had met with NSA officials to gain an understanding of how the program was actually implemented. APS /A +STEWNHEHFOE/NF) +We asked Gonzales why he signed the March 11, 2004, Presidential Authorization even though the Department could not support it. + +On the advice of the Special Counsel fo the President, Gonzales declined to answer, However, Gonzales stated that the White House Counsel, like OLC, provides legal advice to the President and that his signature on the Authorization simply represented his advice as to its form and legality. {FS/SH/NE +NSA Director Hayden told us that Addington asked him whether the NSA would be willing to continue the Stellar Wmd program without the Justicee Department's certification of the Presidential Authotization. Hayden said this was a "tough question" and that he consulted with his leadership team at the NSA before making a decision. Hayden said that three considerations persuaded him to continue the program. First; the congressional members briefed on the situation on March 10, 2004, were supportive of continuing the program without Comey's certification. + +Second, the program had been operating for the previous two and a half years with Department approval. Third, the NSA General Counsel's office told him the program was legal, Hayden said he was unsure whether proceeding without the Department's certification was a sustainable approach, but that he was comfortable doing so when the issue arose in March 2004. @FS/FSH-NF + +## B. Department And Fbi Officials React To Issuance Of March 11, 2004, Authorization {Ts//Sh{Nf}- + +Several Department and FBI leadership officials considered resigning after the Presidential Authorization was signed despite the Deputy Attorney General's refusal to certify the program based on the Department's determination that certain activitics it authorized were without adequate legal support. Many of the Department, FBI, and White House officials we interviewed characterized the events 1mmed1ately surrounding the issuance of the March 11, 2004, Presidential Authorization ini dramatic, sharp terms. + +Several of the Department witnesses described the imnpasse as a "crisis" and described +& sense of distrust and anger that permeated their relations with White House officials during this period. + +In a letter of resignation that Comey wrote but did not send, he described this- period asan "apocalyptic situation." {FS7 S +In this section, we describe the reactions of Department, FBI, and White House officials to the White House decision to continue the programl without the support of the Justice Department. + +(U) + +## 1. Initial Responses Of Department And Fbi Officials (U) + +White House Chief of Staff Card informed Comey by telephone on the morning of March 11, 2004, that the President had signed the new Aiithorization that morning, At approximately noon, Gonzales called Goldsmith to inform him that the President, in issuing the Authorization, had made an interpretation of law concerning his.authorities 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 he would let Goldsmith know. {FS/SH-NFY +Later that day, Gonzales called Goldsmith again and told him that OLC should continue working on its legal analysis of the program. Ina third call that day, however, Gonzales directed Goldsmith to suspend work on the legal analysis and to decline a request from the CIA General Counsel to review a draft of the new OLC memorandum. (ESAFSHHNEY +Goldsmith followed up this series of calls with a letter to Gonzales seeking clarification on Gonzales's instructions. Goldsmith wrote that he interpreted the March 11, 2004, Authorization signed by the President to mean that "the President has determined the legality of [the program] in all respects based upon the advice and analysis of your office, and that officers of the Department of Justice should refrain from calling into question the legality of [the programy], 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, "I am now uncertain about your direction based on the President's exercise of his authority." Goldsmith concluded his letter by reiterating OLC's 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 Philbin delivered this letter to Gonzales at his residence at approximately 11:00 p.m. that night. {F&/ASLNE) +At rioon on March 11, 2004, Director Mueller met with Card at the White House. According to Mueller's program log, Card summoned Mueller to his office to bring Mueller up to date on the events of the preceding 24 +hours. Card recounted for Mueller the briefing of the congressional leaders thee prior afternoon and the President's issuance of the new Authorization without the Departmernt's. approval. + +In addition, Card told Mueller that if no +"legislative fix" could be found by May 6, 2004, when the current Authorlzatlon was set to expire, the program would be discontinued. + +According to Mueller's notes, Card acknowledged to Mueller that President Bush had sent him and Gonzales to the hospital to seek Ashcroft's ceertification for the March 11, 2004, Authorization, but that Ashcroft had said he was too ill to make the determination and that Comey was the Acting Attorney General. + +Mueller wrote in his program log that he told Card that the failure to have Department of Justice representation at the congressional briefing and the attemnpt to have Ashcroft certify the Authorization without going through Comey "gave the strong perception 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." Card responded that he and Gonzales were unaware at the time of the hospital visit that Comey was the Acting Attorney General, and that they had only been following the directions of the President. {FS77/Si//NFY +Mueller reminded Card that Mueller had told Vice President Cheney during their March 9, 2004, noon meeting that Mueller could have problems with the FBI's continued involvement in the program if the White House issued an Authorization without the Department's approval. + +Card said he understood Mueller's concern and told him to stop by Gonzales's office to pick up a copy of the March 11, 2004, Authorization, which Mueller did. + +Mueller met with Comey at 1:15 p.m. to review the Authorization, and he left a copy of it with Comey. + +During this meeting, Mueller told Comey he would be submitting a letter to Comey requesting advice on the legality of the FBI's continued participation in the program.!76 {IS//SL//NE} +Later that day, Mueller sent Comey a memorandum, prepared by FBI +General Counsel Valerie Caproni and an FBI Deputy. @eneral Counsel, seeking guidance on iow the FBI should proceed in light of recent developments. The memorandum asked whether FBI agents detailed to the NSA to work on Stellar Wind should be recalled; whether the FBI should cantinue to receive and investigate tips based onf +. + +s +|| and whether +' +Office of Intelligence Policy and Review (OIPR) Counsel James Baker also expressed his concern about the White House's action. + +On the evening of March 11, 2004, he drafted a memorandum to Comey containing what he later described as a series of "loaded questions" concerning whether it was +"lawful and ethical" for OIPR to continue filing applications with the FISA +Court under the circumstances. 77 +ST +Goldsmith and Philbin called Gonzales late in the evening of March 11 +to ask if they could visit him at his residence to deliver the letter Goldsmith had writteri earlier in the day. As described above, Goldsmith sought to make a record of his earlier conversations with Gonzales in which +'Goldsmith believed Gonzales had conveyed conflicting instructions regarding how OLC should proceed in light of the President's issuance of the March 11 Authorization. + +L/ +NEY +Gonzales told us that Goldsmith drafted the letter because Goldsmith was "confused" about whether OLC should continue working on its legal analysis of the program. + +Gonzales said he recalled that Goldsmith and Philbin were "somber" during the meeting at his house. Gonzales said that he told themi that the President had decided to go forward with the program, but that they should continue working to resolve the outstanding legal questions they had and try to find a solution. + +He said he tried to convey to them his confidence that everyone would "get through this." PSS HHN +Goldsmith and Philbin told us that Gonzales was very cordial during the meeting and expressed regret for having gone to Ashcroft's 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 he encountered more "pushback" from Addington than from Gonzales, and that Gonzales "wanted to do the right thing." {FS/+SH/NF + +## 2. Department And Fbi Officials Consider Resigning (U) + +Cormey told us he drafted a letter of resignation shortly after the incident in Ashcroft's hospital room on March 10. Comey said he drafted the letter because he believed it was impossible for him to remain with the Departiment if the President would do something the Department said was ot legally supportable.178 +(U) +Comey also testified that Ashcroft's Chief of Staff David Ayres believed Ashcroft also was likely to resign and urged Comey 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 following individuals also were prepared to resign: Goldsmith, Philbin, Chuck Rosenberg, Daniel Levin, James Baker, David Ayres, Deputy Chief of Staff to the Attorney General David Israelite, and Director Mueller. Comey also responded to the question that he believed that "a large portion" of his staff also would have resigned if he had. + +(U} +Goldsmith told us he was "completely disgusted" by his recent meetings with White House officials in connection with the Stellar Wind program and that he drafted a resignation letter at around the same time as Comey. The OIG obtained a handwritten list Goldsmith had compiled as these events were taking place to memorialize his grievances with the White House's actions duting this period. The list includes: + +o +the "[s|hoddiness of the whole thing," which Goldsmith told us +referred to his belief that both the process by which 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; +[ 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 finest hour, although it is not over yet. + +. .. + +I suspect +[ will either be fired by the President or quit, but I will have done the right thing for my country. + +(U) + +o +"[o]ver-secrecy," both in terms of not reading in attorneys at the +Justice Department and other agencies, and not keeping +Congress. informed; +o +the hospital incident, which Goldsmith described +as "shameful"; +"|d}isregard of law" on the part of the White House (a reference +Goldsmith did not expand upon with more specificity during his +interview with the OIG); and +. +' +o +the White House's claim that a legislative fix could be achieved, +which Goldsmith regarded as "irresponsible" because he +believed at the time that a legislative remedy was not a vidble +option. {F&/4SHNF} +~ +Goldsmith described three additional items on the list in particular as +"false representations" by the White House: + +o +"[lJies re shutting down," referring te the White House's +assurances to Goldsmith on several occasions that it would +shut down the program if the Office of Legal Counsel could not +find legal support for it; +o +"[lJies re telling [the President] of problem," referring to +representations that the President had been kept informed +of +the Department's concerns about the program; and +o +assertions by White House officials that they "[d]idn't know AG +was incapacitated". {FS/+SH-NF +Goldsmith stated that on Thursday, March 11, Ayres asked him not to resign because the Attorney General should have the chance to do so first once he had fully recovered from his surgery. Goldsmith said he was still +"on the fence" 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.17 +(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 program effective head of the Office of Legal Counsel after his "unprecedented" withdrawal of several legal memoranda, including those drafted by Yoo. + +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) +despite the flaws that the Office of Legal Counsel had identified in its legal analysis. Philbin said he was "absolutely serious" about resigning, adding, +(1] they re going to try to st1 ong~arm the guy on morphine, what else are they going to do?" +{LSLISE +Baker told us that he also considered resigning after the President signed the Authorization but ultimately decided to remain in his position, in part because of his fear that if the White: House was Wllhng to tolerate mass. + +resignations of senior government officials rather than revise the Stellar Wind program, "I don't know what this means in terms of the rule of law in this country." Baker also stated that he knew he had certain protections from removal for a period of time because he was a career official and that he wanted to rernain as Chief of OIPR to protect the government's relationship with the FISA Court and to protect the attorneys in his office. + +($ S +'[ [SI +/ [P}F) +Levih said he was willing to resign over the matter, and he gave a signed reS1gnat10n letter to Comey to be used by him "however [he] felt appropriate." Levin said he did so "1f it would help to get the White House to changc its thind." +Levin sai +1o} +ot certain he shared Goldsmith's view that thel was legally without support, he thought 1 +he White House's conduct dunng the incident at the hospital had been "outrageous and he was willing to resign on that basis alone. + +FBI General Counsel Caproni told us that she also was prepared to resign. + +She said that the FBI's ptimary.concern 1egard111g the impasse between the Department and the White House over the program was not w1th issues of privacy and civil hbertles, but rather with "the rule of law." +At approximately 1:30 a.n. on March 12, 2004, Mueller drafted by hand a letter stating, in part; +"[A]fter reviewing the plain language of the FISA statute, and the order issued yesterday by the President +. + +. + +. and in the absence of further clarification 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 FBI's 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 FBI." Mueller told us he planned on 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. {FS//SL/NE) + +## 3. Comey And Mueller Meet With President Bush () + +On the morning of March 12; 2004, Comey and Mueller went to the White House to attend the regular daily threat briefing with the Presidentin . + +the Oval Office. Comey said that following the briefing President Bush called him into the President's private study for an "unscheduled meeting." +U) +, Comey told us that President Bush said to him; "You look burdened." +Comey told the President that he did feel burdened, to which the President responded, "Let me lift that burden from you." Comey told the President that he felt as if he were standing on railroad tracks with a train coming toward him to run over his career and 'I 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 problems associated with each. + +President Bush responded with words to the effect, "You whipped this on me" all of a sudden, that he was hearing about these problems at the last minute, and that the President not being told of these developments regarding the program was "not fair to the American people." Comey responded that the President's staff had been advised of these issues "for weeks," and that the President was being "poorly served" and "misled" by his advisors. Comey also said to the President, "The American people are going to freak when they hear what collection is going on." President Bush responded, "That's for me to worry about." F8//8TEW/ +787 0S~ +According to Comey, 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 fix FISA by then he would shut down the program. The President emphasized the importance of the program and 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 I stand, I can do no other." +At the end of the conversation, Comey 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. + +Following the conversation, Comey went to Mueller, who was waiting in the West Wing, and started discussing his meeting with the President. Word was then sent to Mueller through a Secret Service agent that the President wanted to meet with him.80 +(U) +Mueller later made notes in his program log about his meeting with President Bush. According to his notes, the President told Mueller that he was "tremendously concernied" about another terrorist attack and that he had been 1nforrnecl that the Stellar Wmd program was essential to protecting +| +be "Justly he d accountable if he did not do everythmg possnble to prevent another attack. The President explained to Mueller that for these reasons he had authorized the continuation of the program even without the concurrence of the Attorney General as to the legality of "various aspects of the program." {FS/HSTEW/ASHAOC/NE) +congressmnal leadershlp had been brlefed on the Pres1dent's action to extend the program and was "understandmg and supportive of the President's position." The President also told Mueller that he had urged Comey to agree to extend the program until May 6 and that he hoped for a legislative fix by that tirhe, but that if no legislative solution could be found and the legahty of the program was still in question by that time, he "would shut it down." -FS/FSH-NF +According to Mueller's notes, Mueller told the President of his concerns regarding the FBI's continued participation in the program without an opinion from the Attorney General as to its legality, and that he was corsidering resigning if the FRBI were directed to continue to participate without the concurrence of the Attorney General. The President responded that he "wished to relieve any burden [Mueller] may be laboring under" and that he did not 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." {FS//SL{/NE) +President just took me inte his private office for 15 minute one on one talk. + +Told him he was being misled and poorly served. + +We had a very full and frank exchange. + +Dan't know that either of us can see a way out. + +He promised that he would shut down 5/6 if Congress didn't fix FISA. + +Told him Mueller was about to resign. + +He just pulled Bob into his office. + +According to Mueller's notes, the President expressed understanding for Mueller's position and asked what needed to be done to address Mueller's concerns. + +Mueller responded that Comey, the Office of Legal Counsel, the CIA, and the NSA "needed to sit down immediately" and assess the legal status of the program in light of OLC's doubts about the existing legal rationale and the March 11, 2004, Authorization. Mueller wrote: +According to Mueller's notes, the President then directed Mueller to meet with Comey and other principals to address the legal concerns so that the FBI could continue participating in the program "as appropriate under the law." +- +Mueller told us he met with Comey an hour later to begin coordinating that effort. + +At 4:50 p.m. that afternoon, Mueller called +-Gonzales to request that additional Department lawyers be read into the program,8 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 Comey and other principals to address the legal concerns averted the mass resignations at the Department and the FBI. According to Comey and other Department officials, the White House's decision to seek a legal solution and allow more attorneys to be read into the program was a significant step toward resolving the dispute, and in the words of one Department official provided a way of "stepping back from the brink." As we describe below, these Department officials still faced the challenge of finding a legal and operational remedy for the program that would address the concerns of the White House, the NSA, and Department. {TS//SH/NF} + +## 4. Comey Directs Continued Cooperation With Nsa (U) + +On the morning of March 12, 2004, Comey decided not to direct OIPR +and the FBI to cease cooperating with the NSA in conjunction with the program. Comey's decision is documented in a 1-page memorandum from Goldsmith to Comey in which Goldsmith explained why Comey's action was legal. S+ +~In his memorandum, Goldsmith stated that the President, as +' +Commander-in-Chief and Chief Executive with the constitutional duty to +"take care that the laws are faithfully executed," made a determination that Stellar Wind, as practiced, was lawful. Goldsmith concluded that this + +## Department Conducts Additional Legal Analysis (U) + +Qn March 12, 2004, an interagency working group was convened to coritinue the legal analysis of the program. + +In accordance with the President's directive to Mueller, officials from the FBI, NSA, and the CIA +were brought into the process, although the OLC maintained the lead role. + +The working group included Deputy Solicitor General Clement, Baker, FBI +General Counsel Caproni, Mueller, and several attorneys from OLC, Comey said CIA Director Tenet and his Deputy, McLaughlin, may have had limited participation as well. {FS/+ASTEW/SH/OC/NFI +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 FBI's view of the value of the program CQmP&fed.With that of the NSA.183 Mueller said that Hayden provided slides highlighting cases in which the NSA believed Stellar Wind-derived information proved useful, 4(S/NE +Caproni told us that during this March 2004 period she and two other FBI officials made an effort to determine what value the FBI was getting from Stellar Wind-derived information. She explained that it was difficult to assess the value of the program during its early stages because FBI field offices at that time were not required to report back to FBI Headquarters with information about how information from the NSA program had been used. 184 (SLINE) +On the afternoon of Sunday, March 14, 2004, the Department convened a large meeting in the Justice Command Center to reyiew OLC's analysis on the legality of the program. + +Mueller, Corney, Goldsmith, Philbin, Baker, CIA General Counsel Muller, Caproni, Tenet, Hayden, Olson, Clement, and several NSA lawyers attended the meeting. + +PSS/ SHHNFY +Prior to the meeting, Goldsmith and Philbin prepared a detailed outline of OLC's current analysis, which Goldsmith described to us as his +"most honest take" of the legal issues at that time, Goldsmith said he distributed the outline to meeting participants and used it to walk the group +183 Caproni had been appointed the FBI General Cournsel in August 2003 and was read into the Stellar Wind program in.September or October 2003. She told us she did not give much thought to the program at the time because OLC had determiried that it was legal. + +She stated that in 2004 she learned that OLC was re-examining Yoo's legal analysis and had concerns with it. + +She told us she later spoke with Philbin, who confirmed to her ++hat he and Goldsmith had problems with the legal support for the program and that he was frustrated because the program was so tightly compartmented that he could not talk to anybody about it. + +Caproni told us that at some point she obtained a copy of Yoo's legal opinion. She stated that after reading it she immediately understood Philbin's concerns because the opinion appeared to lack analysis and simply concluded that the program was legal, ESAASH N +184 The FBIl's Electronic Communications Analysis Unit compiled a summary of knownBIBE +I Stellar Wind tip results from January 1, 2003, through mid-December 2003. + +bl, b3 +; did not +, (D)(3) +However, the data included in the summary was incomplete, and the summ contain any analysis of the effectiveness of these tips. .Anether study of thelEE) +; +tippers was conducted in 2006. + +The results of that study are discussed in Chapter Six of this report, along with the OIG's analysis of the effectiveness of the program. + +195 Goldsmith alse 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. + +However, as discussed above, the White House had briefed the congressional leadership about the program on March 10, 2004. + +In addition, the former Presiding Judge of the FISA +Court, Royce Lamberth, and the current Presiding Judge, Colleen Kollar-Kotelly, had been read into the program hy this time. + +(U) +~ +Goldsmith told us that the March 14 mieeting was designed to achieve full consensus among the principals on the issues, and that the meeting was successful in this regard. + +(U) +That evening, Mueller called Gonzales to.re hort that progress had been made, although legal support for RIS +not been found. Mueller also told Gonzales tha should speak directly with Comey on these matters. + +## 6. Comey Determines That Asheroft Remains "Absent Or Disabled" (U) : + +Attorney General Ashcroft was released from the hospital at noon on March 14, 2004. The next day, Comey advised Ayres by memorandum that Ashcroft's doctor believed that Ashcroft required additional time to recuperate at home and was not yet ready to resume his responsibilities as Attorney General. + +Comey's memorandum noted that the doctor intended to reassess Ashcroft's condition on March 24, 2004. Comey's memoranduin stated that, based on these circumstances, Comey continued to believe that Asheroft was "absent or disabled" within the meaning of 28 U.S.C. 508(a). + +Comey's memorandum concluded: +As before, notwithstanding my continued temporary capacity as Acting Attorney General, +| intend, where possible, to exercise +"a1] the power and authority of the Attorney General" pursuant to the authority that 28 C.F.R. 0.15(a) delegates to me in my regular capacity as Deputy Attorney General. + +(U) +A copy of the memorandum was sent to Gonzales at the White House and to senior Department officials.1%? + +(U) + +## 7. Judge Kollar-Kotelly Briefed On Lack Of Attorney General Certification (U) + +As discussed earlier in this report, the extent to which OIPR could use Stellar Wind-derived information in FISA applications had been limited by Judge Kollar-Kotelly, the FISA Court's Presiding Judge. After her read-in'to the program in May 2002, Judge Kollar-Kotelly had directed OIPR to continue, with some modifications, the "scrubbing" procedures for FISA +applications in place at that time. + +- +STL +: +According to an -OLC memorandum, on March 14, 2004, Judge Kollar-Kotelly was informed that the President had reauthorized the Stellar Wind program, but that the latest Authorization lacked the Attorney General's certification as to form and legality.} The memorandum indicated that as a result of Judge Kollar-Kotelly's uncertainty about the implications of this development, she intended to insist on a complete separation of any information derived from Stellar Wind, whether directly o1 +indirectly, from all FISA applications presented to the FISA Court, The memorandum noted that "{blecause of the way tips get worked into (and lost ir) the mix of intelligence information, that standard would have virtually crippled all counter-terrorism FISAs." {PSHSTLW/SHHOC/NE + +## 8. Comey And Gonzales Exchange Documents Asserting Conflicting Positions (U) + +According to Mueller's program log, on the morning of Monday, March 15, 2004, following the daily threat briefing in the White House Situation Room, President Bush remarked to Mueller that he understood +"progress had been made," referring to the discussions on the legal basis for the Stellar Wind program. + +Mueller called Comey 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 Committees. FS/ASHANE +Also on March 15, Goldsmith drafted for Comey a 3-page memorandum summarizing OLC's views with respect to the legality of the program. + +The memorandum recast in narrative form Goldsmith's outline of March 14, 2004 (discussed above), and noted that OLC had not reached any. + +"final conclusions and [was] not yet prepared to issue a final opinion on the program." The memorandum also stated that the Stellar Wind program potentially implicated various congre ssional and intra-Executive Branch rgportmg'-r,e'qui:ements imposed both by statute and Executive Order. The +. memorandum stated that OLC was only beginning to analyze these re.p(jrtifng issues. + + +S8 +N +Goldsmith and Philbin went to see Gonzales oti the-afternoon of March 15 to explain what OLC had determined in its legal analysis to that pcl),-i_n.t, and also to notify Gonzales that he would be hearing from Comey shortly about the Department's position as to the program's legality. (U) +According to Philbin's contemporaneous notes on the events of the next two days, on March 16, 2004, following the morning threat briefing at the White House, Comey told President Bush that OLC had finished its preliminary legal analysis of the program. 9! Comey asked the President if Comey should convey the details of the analysis to Gonzales, and the President indicated that Comey should do so. {ES/ASH-NE +After Comey returned to the Department, he signed a short memorandum to Gonzales that he had drafted the night before. In the memorandurn, Comey first recounted hew the President on March 12, 2004, had directed the Justice Department to continue its analysis of the Stellar Wind program and to "provide its best advice concerning ways to change the program to conform with the Justice Department's understanding of the applicable law." Comey then described the composition of the working group convened to accomplish this objective and how the group's efforts had resulted in Goldsmith's 3-page analysis, which Comey attached to his memorandum. + +{F&H8HH +Comey then set ou t his advice to the President. According to the that the President may lawfully continue +.. + += += +| Comey OIS +nvolved "close legal questions, requiring legally aggressive indeed, novel +- supporting arguments +. + +. + +. + +.7 Comey further wrote that the Department remained unable to find a legal basis to Py )(1), (b)) . + +B +Accordingly, Comey advised that such raised "serious issues" about congressional notification, "particularly where the legal basis for the program is the President's decision to assert his authority to override an otherwise applicable Act of Congress." Comey wrote that the Department would continue to explore the notification issue. + +) +Comey instructed Goldsmith: and Philbin to hand deliver the memoranda to Gonzales at the White House, which they did. + +Philbin also delivered copies to Solicitor General Olson. + +Philbin's notes indicate that Olson was "annoyed" that Comey had sent the memoranda to the White House without consulting him, and asked Philbin several times, "What's my role supposed to be here?" Olson also said to Philbin that he thought the mermoranda were a "poke in the eye" to the White House. Philbin wrote that Olson's reaction "raised concerns that [Comey] may have gotten himself too far ouit there alone" by not bringing Olson in on the Department's legal opinion in advance. + +(U) +Comiey told us that he knew his memorandum would anger people at. + +the White House because he had putin writing the arguments questioning the legality of aspects of the program and that the miemorandum and Goldsmith's attachment would become a part of the Presidential records and would be discovered later by historians. + +He stated he believed it was important to "make a record." (U) +According to Mueller's program log, Gonzales called Mueller at 1:45 +p-m. on March +16 to discuss the situation. + +Gonzales explained to Mueller hat in yiew of the Department's tentative conclusion that legal support for +(b)@) +, +| +was still lacking, Gonzales would have to make a ecommendation to the President on how to proceed. Gonzales told Mueller he needed to know whether CEEREEEE Mueller would resign if the President decided +| \[cller responded that he +"would have to take time to consider his actions, but that he "would have to give it serious consideration if the President decided to go ahead in the face of DOJ's finding." (ES/ASTLW//SHAOCHNE)- +Later that afternoon on March 16, Card called Comey to the White House for a meeting, According to Philbin's notes, "the back channel word from Judee Gonzales" was that President Bush might be willing to +'Prior to the meeting, Comey, Goldsmith, and Philbin agreed that Comey should be ready to convev, the White House that the Department would sup por gty also expressed to Department's eparty o o g v v +1 += +Philbin's notes indicate that at the meeting Card told resident was "wrestling" with the issue of whether to}s +. + +and would decide "very soon." Card +'Comey his di sure that Comiey had put in writing the position on the legality of the program. + +- +STLWLLS +That evening, while attending a farewell dinner for a Department colleague at a local restaurant, Philbin received a call from David Addington indicatinig that he wanted to deliver a letter Gonzales had written to Comey. + +Philbin met Addington at the Department at 8:30 p.m. that night to accept the letter. Philbin's notes also indicate that Gonzales had called Comey in advance to tell Comey "not to get too overheated by the letter." +(U) +Comey told us he recalled that Gonzales told him in the call that the White House would agree to work with the Department to fix the program aid that Comey should not "overreact" to Gonzales's letter. Comey said he believed Addington, and not Gonzales, had actually drafted the letter, and that Gonzales sent it only to counter Comey's. memorandum and to make a record on behalf of the White House. + +(U) +'Gongzales's letter stated that the President had directed him to respond to Comey's memorandum. The letter stated: +Your memorandum appears to have been based on a misunderstanding of the President's expectations regarding the conduct of the Department of Justice. While the President was, and remains, interested in any thoughts the Department of Justice may have on alternative ways to achieve effectively the goals of the activities authorized by the Presidential Authorization of March 11, 2004, the President has addressed definitively for the Executive Branch in the Presidential Authorization the interpretation of the law.192 +The letter also excerpted the language of paragraph 10 from the March 11, +2004, Authorization, which recited the bases on which the President acted to reauthorize the program, and then concluded: +"Please ensure that the +"According to Mueller Sfpmgram log, Gonzales called Comey to advise him of the Presuient s decision on Ma1ch 17 2004, and Comey passed this information to Mueller later that day. Comey, in an e-mail dated March 17, expressed relief at the President's decision, writing: +Today, in a remarkable development we stepped back from: the brink of disaster. All seems well in the Government. The right thing was dene. TS/ STLWLSH-LOC/NE- +Gongzales told the OIG during his interview that he could not say whether the prospect of resignations at the Department and the FBIl may have had an impact on the President's decision.194 We were not able to interview others at the White House to determine what specifically caused the program to be modified in accord with the Department's legal position. + +U +The President's directive was expressed in two modifications to the March 11, 2004, Presidential Authorization. These modifications, as well as the operational and legal implications of the President's decision for the Department and the FBI, are described in the next sections. {TS//LSHHNF- + +## I. March 19, 2004, Modification (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 Comey stated that he did not believe Gonzales wrote this letter. + +He stated that +"Addington was the flame-thrower" and that Gonzales was generally more reasonable and moderate. Comey said that Gonzales had later apologized to both Comey and Ashcroft for his conduct during the March 10-incident at the hospital and had even come around to agree with Philbin and Goldsmith's analysis regarding the program. + +Gonzales told the OlG +that he did not apologize to Ashcroft for the incident in the hospital because he had been instructed by the President to go there, but stated that he "regretted" the incident. + +(U) +Authorization. The first par agraph of the Modification stated that "this memorandum, as a policy matter, modifies the Presidential Authorization of March 11, 2004 as set forth below . . + +. and granted by all the Presidential AuLhonzatmns to the extent set lorth:{in the Modification]." The March 19 Mod1f10at1on made two significant changes to the existing Authorization and g +_third +- +nt change affecting all Authorizations. + +To allow for a ) ! + +| these changes were to become effectwc beommnc at: mldmdhton March 26, 2004. + +First, the March 19 Modification inserted language to narrow content collection (basket 1) to al Qaeda and affiliated terrorist groups, as the Department had advised. The new content collection authority in paragraph +4(a) of the March 11 Authorization, with the new language from the March 19 Modification indicated in italics, was: +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 the factual and practical considerations of everyday life on which reasonable and prudent persens act, there are reasonable grounds to believe such communication originated or terminated outside the United States and a.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 affilzated with al Qa'ida, or is another group that I determine for purposes of this Presidential Autherization is in .armed conflict with the United States and poses a threat of hostile action within the United States|.] +(P87 +HETHO +Modification, March 19, 2004, pa additional language resulted i in B +Each Presidential Authorization had contained a directive to the Secretary of Defense not to disclose the program outside the Executive Branch without the President's approval. + +The Modification reiterated that any change was not intended to reverse the President's control over access +196 Bradbury was nominated to be Assistant Attorney General for OLC in June +2005, He was not confirined for this positien, and told us that after exhausting the time period for use of the "Acting" title under the Vacancies Reform Act of 1998 (see 5 U.S.C. + +'3345 et-seq,). in April 2007, he reverted to Principal Deputy Assistant Attorney General, the position he had held prior to his nomination. + +As head of OLC, Bradbury became resporisible for briefing members' of Congress on OLC's legal analyses concerning the program as well as on the Presidential Authorizations. Bradbury's access to these documents and the officials responsible for drafting them provided him significant + +## 5. Judge Kollar-Kotelly S His Analysis Regardi + +As noted abo;}.e, Judge Kollar-Kotelly was made aware on March 14, +2004, that the March 11 Authorization had been signed by the President but had not been certified as to form and legality by the Justice Department. On March 18, 2004, Goldsmith, Philbin, Baker, and Gonzales met with Judge Kollar-Kotelly to further brief her on the status of the program.. According to an internal OLC memoranduin, they advised her that forthcoming legal opinions from OLC would allay her cencerns about the use offiprqg:r,vamederifved information in FISA applications,202 +The OIG reviewed a handwritten letter from Judge Kollar-Kotelly to OIPR Counsel Baker, which +'ed to have been written just after the initiation ofMIBEIGE +s mandated in the March 19, 2004, Modification. Baker told us that the handwritten letter should be viewed as an informal draft designed to convey Judge Kollar-Kotelly's preliminary understanding of the issues raised by the changes to the Stellar Wind program. + +In the letter, Judge Kollar-Kotelly reiterated her position that Stellar Wind-derived information should be excluded from FISA +applications, writing, "so there is no misunderstanding, I will not sign a FISA application which contains any information derived from and/or obtained from the [Stellar Wind] program," including applications in which a. + +Stellar Wind tip "was the sole or principal factor in starting an investigation by any of the agencies, even if the investigation was conducted independently of the tip from [Stellar Wind]." Judge Kollar-Kotelly also requested, as a precondition to her agreeing to sign FISA applications in the future, that OIFR clarify in writing its proposal for reviewing FISA +applicationis to ensure that all Stellar Wind-derived information had been excluded. Baker told us that he had a lot of "verbal back and forth" with Judge Kollar-Kotelly to explain OIPR's scrubbing procedures. + +On March 263, 2004, OLC completed a draft mernorandum for Baker entitled "Use or Disclosure of Certain Stellar Wind Information in Applications Under FISA." This memorandum addressed the inc TISA applications of information derived indirectly fro +(b)(1). + +(B)(B) +) +{ +205 +OLC also provided Judge Kollar-Kotelly with a copy of its draft leg analysis.2% +{(I577 +204 This argument is discussed below in connection with Goldsmith's May 6, 2004, legal analysis. + +(U) +205 With respect to +~ the memorandum stated that the Department did not believ ch information was subject to any constitutional restraints or statutory restrictions, but that "[t]o the extent Judge Kollar-Kotelly has concerns about those conclusions, we note that the analysis in this memorandum independently demonstrates that there are no legal restrictions on the use of information indirectly derived fro JOTEREIEBOIET +| tippers in FISA applications." +200 The draft memorandum did not address inclusion in FISA applications of iriformati'on derived directly from the program because OIPR had successfully managed to address Judge Kollar-Kotelly''s order to exclude such information. + +(T +QT RLLLSL +L QO LNE +(I +A +MY +A Bl +7T + +## 6. April 2, 2004, Modification (U) + +Attorney General Ashcr oft's doctors cleared him to resume his duties as Attorney General as of March 31, Comey advised Ayres in a March 30, +0004, memorandum that as of 7:00 a.m. on March 31, the Attorney Gencral W4s no longer "absent or disabled" within the meaning of 28 U.S.C. 508(a), and that-as of that time Comey could no longer exercise the duties of the Office of Attorney General pursuant to the statute. A.copy of the memorandum was sent to White House Counsel Gonzales and other senior Departiment officials. + +(U) +On April 2, 2004, President Bush signed, and Gonzales certified as to form and legality, a second Modification of the March 11 2004 Presidential +_Authorization, This modification addressed onlyRETHQIEE +. + +activities of the Stellar Wind program (TS +SFEY +207 An April 5, 2003, dsmith mem dum to file stated that OLC worked with Addirigton to craft the new +3), +(b S STEWT +ST/ TOCTINE] +_208_Bradbury distinguished ially authorized +, the Modifications ate?tf to FBI employees nation to the field. + +and subsequen horlzafi +7 +S +- ,,ere +' +respcmsflale for tlpp ng Stellen W. nd in + +( +~ +Aformer Unit Chief in the Communications Analysis Unit (CAU) +within the FBI's Communications Exploitation Section (CXS) of the +Counterterrorism Division told us he became aware that at some point the +scope of collection under Stellar Wind was narrowed to include only +pEres' +| +Hesaid this 1nfo1 mation was passed along to him +and others at +the FBI during either, +] +acterly meeting with +NSA 1epresentat1ves +He said Lh = +ractice was "taken +very seriously" by the NSA. Asan example, he said that Requests for +Information (REL) from the FBI to the NSA on numbers not associated with +were rejected by the NSA as outs1de the 'scope of the +revised Authonzatmn An FBI Supervisory Special Agent in the CAU'S unit co-located at the NSA (called Team 10) told us thatwhenh first began collection and +' ))('l (b)(S) += +@ += +' om'c the scope of collec"' 0 +, He sald that ) +(b?( )v mformatmn ona pal tlcular number, Lhe NSA closely analyzed the number and requested supporting information from the FBI before querying the Stellar Wind database. + +This supervisor also stated that the NSA 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 appropriate personnel during the daily "all hands meetings." + +## 8. Office Of Legal Counsel Assesses Nsa's Compliance With New Collection Standards {Es/Fsh7Nf| + +Goldsmiith told us that durmg the week of March 29, 2004, he and Philbin conduc: +dit" +of the Stellar Wind program to ensure that the querying ofl +. \was being conducted in accordance with the Pres1dcnt1al Authouzauons {?SHS?LWH-SI%;LQQ%NE) +Goldsmith said that while resources were not available to conduct a sprofessional" audit, he visited the NSA apdes yiewed with releyant NSA +officials the legal parameters for queryingEREEIEER += +which as discussed above required a showing of reasonable articulable suspicion that the target belonged to a group that was engaged in international terrorism.?0 Goldsmith told the OIG that as part of the review, he agd Philbin famili ized the NSA with the new collection parameters +| +35S +71 +On April 15. 2004, Goldsmith reported the results of his and Philbin's top P +1 e Assistant General Counsel for Operations in the General 'Couneel at tfle time. + +## 9, May 5, 2004, Presidential Authorization {Es//Shane)- + +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 followed it, the May 5 Authorization was certified as to form and legality by Attorney General Asheroft. TTS7/SIF7NFS +The May 5; Authorization contained the Authorization narrowing the scope of DG laneuage from the March 11 +. + +I +TheMayS Authorization also- +"included the paragraph defining the scope of (RIS +' +EE +mcdfiified' on Mrch9 to-encompass onl 1 )(1)(b)(3) - +- +"reiterated the new collection standard s Modification, which required thatl L)1) +i8] +' += +~ +With minor variations, the collection standards.and other language set forth in the May 5, 2004, Presidential Autherization remained uncli'fangx_jd_ in all of the subsequent Authorizatiens.2!1 + +## 10. May 6, 2004, Olc Memorandum (S Shnf + +On May 6, 2004, Goldsmith completed a revised OLC memorandum on the legality of the Stellar Wind program. The 108-page document stated that it was written for the Attorney General in response to his request for OLC "to undertake a thorough reexamination of the Stellar Wind program asitis currently operated to confirm that the actions that the President has directed the Department of Defense to undertake through the N ational Security Agency (NSA) are lawful." {FS//SL//NE) +' +The memorandum traced the history of the program and analyzed the legality of each of the three collection baskets in light of applicable statutes, Executive Orders, cases, and constitutional provisions. + +'?i +'The memorandum noted that Sectlon 111 of FISA, 50.U.8.C. 1811, proyiding that the President "may authorize electroniic surveillance without a court order . + +. + +, to acquire foreign intelligence information for a period not. + +to exceed flfteen calendar days following a declaration of war by Congress," +made it clear that FISA expressly addresses electronic surveillarice during wartime.212 The memorandum stated that the Authorization for Use of Military Force (AUMPF) passed by Congress shortly after the attacks of September 11, 2001, gave the President authority to use both domestically and abroad "all necessary and appropriate force," inluding 31gnals intelligenice capabilities, to prevent future acts of international terrorism against the United States. According to the memorandum, the AUMF was. + +properly read as an express authorization to conduct targeted electronic surveillance against al Qaeda and its affiliates, the entities responmble for attacking the United States. -(-'-PS#'S'H:W#-SH%@@%NFT +The memorandum noted that the legislative history of FISA - indicates that the 15-day window was "thought sufficient for the President to secure legislation easing the restrictions of FISA for the conflict at hand." Quoting H.R. Conf. Rep. No. 95-1720, at 34, reprinted in U.5.C.C.A. N. 4048, 4063. + +("[T]he conferees intend that this period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency"). According to the OLC memorandum, "The Congressional Authorization functions as precisely such legislation: +it is emergency +1cg1s1at10n passed to address a specific armed conflict and expressly designed to authorize whatever military actions the Executive deems appropriate to safeguard the United States." (PSS +The memorandum concluded that at a minimum the AUMF made the application of FISA in a wartime context sufficiently ambiguous that the doctrine of constitutional avoidance properly applied to avoid a conflict between FISA and the presidentially authorized Stellar Wind program. + +Alternatively, the memorandum argued that FISA, as applied in the particular circumstances of a President directing surveillance of the enemy to prevent future attacks upon the nation, represented an unconstitutional infringement on the President's Article I Commander~1n Chief powers. + +TS/ASTLW//SHAOC/NE), +- the miemorandum discussed imulications of the Stellar Wind program. To determine whether interception o DRGSO +B +violated the Fourth Amendment's prohibition a st unreasonable searches, the memorandum analyzed whether the importance of the government's interest in this collection outweighed the individual privacy interests at stake., Citing various,authorii yding Supreme Court opinions, the Federalist Papers,} +and congressional testimony, the memorandum concluded that "the government's overwhelming interest 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 government's interest in this regard could change over time if the threat from al Qaeda were deeemed: to recede, +1FSF +NFSHOCINEY +The memorandum also analyzed telephone and e-mail meta data collection under the Fourth Amendment. The memorandum concluded, hased on the Supreme Court's holding in Smith v. Maryland, 442 U.S. 735, +742 (1979), that there is no legitimate expectation offi.pr'ivacy in the numbers dialed to place telephone calls. Referring to cases holding that no expectation of privacy attached to the address information on either letter mail or e-mail, the memorandum concluded that no Fourth Amendment privacy interests were implicated in the collection of e-mail meta data. + +## Iil. Oig Analysis (U) A. Department's Access To And Legal Review Of Stellar Wind Program Through May 2004 {Es/Hfsthnf} + +The Justice Department's access to the Stellar Wind program was controlled by the White House, and Gonzales told the OIG that the President decided whether non-operational personnel, including Department lawyers, could be read into the program. Department and FBI officials 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 process for non-operational officials. + +In contrast, according to the NSA, operational personnel at the NSA, CIA, and the FBI were read into the program on the authority of the NSA Director, who at some point delegated this authority to the Stellar Wind Program Manager. FS/+1SH-NF +Various officials we interviewed about the issue uniformly agreed that the White House sought to strictly limit overall access to the Stellar Wind p]ro,g-rarna We believe that this policy was applied at the Department in an unnecessarily restrictive manter prior to March 2004, and was detrimental to the Department's role in the operation of the program through that period. We also believe that Attorney General Asheroft, as head of the Department, was responsible for seeking to Gi_'iSLH'C that the Department had adequate attorney resources to conduct a thorough and accurate review of the legality of the program. Because Ashcroft did not agree to be interviewed for this investigation, we were unable to-determine the extent of his efforts to press the White House to read in additional Department officials between the program's inception in October 2001 and the critical events of March 2004, FS/+SHNF +In Chapter Three we described how the Department's early involvement in the Stellar Wind program was limited to the participation of only three attorneys - Attorney General Asheroft, OLC Deputy Assistant Attorney General John Yoo, and Counsel for Intelligence Policy James Baker.216 Working alone, Yoo drafted several legal memoranda in 2001 and +2002 advising the Attorney General and the White House that the program was legally supported. + +In reliance on Yoo's advice, Attorney General Ashcroft certified the legality of the Presidential Authorizations to implement the program. {F&/EH7NFT +Because Yoo worked alone, his legal analysis was not reviewed by other attorneys, either in OLC or elsewhere in the Department.217 Even +216 Counsel for Intelligence Policy James Baker was read into the program in either late 2001 or January 2002. + +But Baker appears to have been read in only because he inadvertently came across information that suggested-such a program existed. While Baker had involvement in several aspects of the program, he had no involvement in drafting or reviewing Yoo's legal memoranda supporting the program. Daniel Levir, who served &s both Chief of Staff to FBI Director Mueller and briefly as a national security counselor to Ashcroft, also was read into Stellar Wind at the inception of the program. + +However, Levin only served for two 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 read-in, not a Department read-in. {FS/LSTLW//SL/OC/NE) +27 +Gongzales 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 were unable to confirm this. + +In any event, no other attorneys were read into Stellar Wind and therefore would not have beeri permitted to work on or review those portions of the memoranda that contdined Top Secret/Sensitive Compartmented Information (TS/ SClI) related to the Stellar 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 2001 to 2003 period, and these memoranda were reviewed by another OLC Deputy Assistant Attorney General +(Cont'd.) +when Jay Bybee became the OLC Assistant Attorney General in Novermber +2001, and was therefore Yoo's supervisor, Bybee was not read into the program.?} Bybee told us he also was unaware that Yoo was providing advice to the Attorney General and the White House on the legal basis to support the program. {F877/5H/ 1)~ +~We believe that even before Patrick Philbin voiced his initial concerns with Yoo's analysis in 2008, the circumstances in 2001 and 2002 plainly called for additional Department resources to be applied to the legal review of the program and that it was the Attorney General's responsibility to be aware of this need and to take steps to address it. Moreover, because Ashcroft met frequently with the President on national security matters, he would have been well-positioned to request additional legal resources if he believed they were necessary. (FSAHHSHANE) +The facts suggest that Asheroft had some awareness and concern that Yoo was working on the legal justification for the Stellar Wind program without any Departmerit assistance or oversight, and possibly was advising the White House directly of his findings. Based on accounts of the incident in Ashcroft's hospital room in March 2004, Ashcroft made specific complaints to Gonzales and Card about insufficient legal resources at the Department and that the Department had been "cut out of the whole affair." +He had also expressed frustration to Comey months earlier about being "in a box" with Yoo. + +Further, according to Goldsmith, when Goldsmith first interviewed for the position of Assistant Attorney General for OLC in 2003, Ashcroft and his Chief of Staff alluded to concerns over being kept informed of matters the Office of Legal Counsel was working on and the imiportance of keeping the Attorney General "in the loop." Wealso riote that Yoo's November 2, 2001, memorandum to Ashcroft indicated that "[blecause of the highly sensitive riature of this subject and the time pressures involved, this memorandum has not undergone the usual editing and review process for opinions that issue from our Office [OLC]." FS/+SHNEN +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, +(Philbin} and approved by the OLC Assistant Attorney General {Bybee). + +The detainee interrogation program also was classified as TS /SCl. + +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. FS//-SHANE) +we cannot assume that any requests by Ashcroft for additional attorney read-ins would have been granted by the White House. + +Gongzales told us that Ashcroft had requested that Deputy Attorney General Larry Thompson and Ashcroft's Chief of Staff David Ayres be read in. However, neither request was approved.?1? + +Gongzales stated that he did not recall Ashcroft requesting additional read-ins beyond Thompson and Ayres. + +(U) +Ini analyzing the read-in 'situation at the Department during Yoo's tenure, we also considered that Ashcroft certified the program as to its legality each time the program came up for renewal, and did so at a time when Yoo's legal advice was the only Department guidance available concerning the program's legality. + +We believe the fact that only three Department attorneys were read into Stellar Wind through mid-2003 may have heen due at least in part to Ashcroft's routine recertifications of the Presidential Authorizations during this period. + +As noted in Chapter Three, Gornzales told us that it was up to the Attorney General to decide how to satisfy his legal obligations as Attorney General, and that if Ashcroft believed more attorneys were needed for this purpose, he could have asked the President to approve additional Department read-ins. + +Gonzales also told us that Ashcroft's continued certifications of the Presidential Authorizations supported Gonzales's belief that Ashcroft was satisfied with the quality of the legal advice he was receiving at the time within the Department. + +) +'There is evidence as well that Gonzales, as White House Counsel, was satisfied with Yoo's legal memoranda supporting the program. Gonzales told us that although he did not believe Yoo's first two memoranda fully addressed the White House's understanding of the Stellar Wind program, Gonzales believed that they described as lawful activities that were broader than those carried out under Stellar Wind, and that Yoo's memoranda therefore "covered" the program.?20 {FS/fSH + - +priefed about the program in +- +.. + +to be read into'the program in 2003, The OIG does 10t Know who authorized these read-ins, -FS7SHNF- +220 We were troubled by Gonzales's suggestion that Yoo's memoranda covered the program because the memoranda determined to be lawful a range of "hypothetical" +activities that were interpreted by Gonzales to be broader than those actually garried out under Stellar Wind. + +Such an approach, if deemed acceptable by the "client" (in this case the White House), would encourage the Office of Legal Counsel to draft broad and imprecise +{Cont'd.) +However, even apart from the limited number of Department read-ins, we believe that the White House imposed excessively strict controls ever access to the program in other ways that were detrimental to the Department's ability to provide the White House with the soundest possible legal advice, For instance, we found no indication that Yoo coordinated his legal analysis with the NSA. According to Michael Hayden, the Director 'of the NSA when Stellar Wind began, the NSA relied on its Office of General Counsel, arid not the Department of Justice, for advice as to the legality of the program when it was created. + +However, we found that the NSA's Office of General Counsel did not coordinate its legal advice with the Department, and even as late as 2003 the NSA General Counsel was prevented by the White House from reviewing the Department's legal opinions on the program.??! Hayden also told the OIG that he was "surprised with a small +'s" that the Department did not participate in the early meetings with him and White House officials when Stellar Wind was first conceived. + +In addition, Addington instructed Philbin not to discuss.the program with Baker, who as Counsel for Intelligence Policy was responsible for representing the government before the FISA Court.222 {FS//81//1F +We believe that that White House should have allowed and even ericouraged coordination between the Department and the NSA regarding the development of the legal analys1s of the program, especially as this analysis was first bBeing formulated in late 2001.. Such interaction between the Department and other Executive agencies is a mainstay of traditional OLC practlce and we believe its absence here contributed to factual errors in Yoo''s opinions regarding the operation of the program. IS L/SLILANE} +Although we could not determine exactly why Yoo remained the only Department attorney assigned to assess the program's legality from 2001 +uziti] his departure in May 2003, we discuss below our belief that this practice represented an extraordinary and inappropriate departure from OLC's traditional review and oversight procedures and resulted in significant harm to the Department's role in the program. HF&//SH-/NF}- +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. + +08773t/ NF +In addition, the NSA Office of the Inspector General, which wanted to conduct an internal audit of the program during this peried, was prevented by Addington from and legality. When Goldsmith became the OLC Assistant Attorney General in October 2003, Philbin pressed Addington to have Goldsmith read in, and Goldsmith became the first head of OLC to be read into the program. + +As noted, Goldsmith's predecessor Jay Bybee was never read into the programi. + +Thus, by the end of 2008, a total of only 5 Department officials - Yoo, Ashcroft, Baker, Philbin, and Goldsmith - had been read into Stellar Wind. + +By comparison, and as shown in Chart 4. 1 below, we determined that many other individuals throughgut the coverpment were read in the program. + +h the same period. + +B +hrou The assignment of only one Department attorney, John Yoo, to conduct 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 OLC to be so inaccurate and incomplete as to be regarded as not covering key aspects of the Stellar Wind program Given the enormously complex nature of the program from both a technical and legal perspective, coupled with the fact that he was working alone, it was not altogether surprising that Yoo's analys1s contained inaccuracies and omitted critical elements, particularly glven the pressure to generate a +'1egal analysis within weels of the program's implementation. However, Yoo's analysis did not charnge or inilude a more accurate description of the program s operatlon over the course of his 20-month tenure with the OLC. + +After reviewing Yo00's legal opiniens on the program, Goldsmith and Phflbm qulckly chscovered what they characterized as seriougflay +00'S +*'s fallure to descrtbe +"Philbin 'alisoacknoiged that tf riily'1 'correctly beheved the NSA s +' +was broader than it in fact was under the program. However, unlike Yoo, Goldsmith and Philbin accurately characterized the collectior +| +\and thus their legal advice was based. + +on facts that wiore closely ref ected the actual operation of the program 22> +) +In addition, Goldsmith and Philbin discovered that Yoo's assertion that the President had broad authority to conduct electronic surveillarice withouit a warrart pursuant to his Commander-in-Chief powers under Article 1 of the Constitution, particularly during wartime, never addressed +'the FISA provision that expressly addressed electronic surveillance following a formal declaration of war. + +See 50 U.S.C. 1811, Goldsmith alse criticized: +Yo60's legal memoranda for failing to support Yoo's aggressive Article I +Commander-in-Chief theory with a fully developed separation of powers analysis, and instead offering only sweeping conclusions, As an example, Goldsmith. cited Yoo's assertion that reading FISA to be the "exclusive statutory means for conducting electronic surveillance for foreign intelligence" amounts to an "yunconstitutiorial infringement on the President's Article II authorities."226 Moreover, noted Goldsmith, Yoo omitted from his separation-of-powers discussion any analysis of how the Youngstown Steel Seizure Case, a seminal Supreme Court decision on the distribution of governmental powers between the Executive and Legislative Branches during wartime, would affect the legality of the President's actions with respect to Stellar Wind.?27 {FS/STEWSHOCHNE) +In reliance on Yoo's advice, the Attorney General certified the program +"as to form and legality" some 20 times before Yoo's analysis was +' +determined to be flawed by his successors in OLC and by attorneys in the Office of the Deputy Attorney General. We agree with many of the criticisms offered by Department officials regarding the practice of allowing a single Department attorney to develop the legal justification for the program stirveillance for foreign intelligence purposes," +during its early stage of operation. We summarize these criticisms below. + +Goldsmith described as "crazy" and "outrageous" the assignment of an OLC Deputy Assistant Attorney General to provide legal advice to the White House without the kriowledge or concurrence of the Senate-confirmed Assistant Attorney General for OLC, who is accountable for the legal positions taken by the office. + +(U) +Goldsmith said that not a single critical eye reviewed Yoo's work on a program that Goldsmith described as "flying in the face" of the conventional understanding of the law at the time. Goldsmith neted that Yoo's legal ntemoranda did not include facts about how the Stellar Wind program operated in practice, and he surmised that Yoo instead might have "keyed off" the Presidential Authorizations rather than NSA's actual collection. + +practices in developing his analysis. Goldsmith also said it was "insane" +that Yoo's memoranda were not shared with the NSA. Goldsmith said that had the NSA reviewed these memoranda Yoo's failtire to accurately describe the nature and scope of the collection by the NSA and the resulting +"mismatch? between the actual practice and the wording of the Presidential Authorizations might have been detected earlier. {FS/SH-/NE +Similarly, Daniel Levin, who was one of the first FBI officials to be read into Stellar Wind and who would later become Acting Assistant Attorney General for OLC upon Goldsmith's departure in June 2004, criticized allowing a single attorney to be the sole voice of the OLC +concerning a program such as Stellar Wind. Levin stated that OLC has a special role at the Department and within the government, especially with. + +"highly secret programs where opinions may never sce the light of day." +Under such circumstances, according to Levin, it is very difficult not to say +"yes" to the White House - OLC''s client +- in the face of national security threats. + +Levin stated that unlike situations where a court places limitations on the positions the government may take, there are no such limitations when OLC considers a position that will remain secret, and it is easier to be more aggressive and "cut some corners" under such circumstances. + +## ~Esh St Shfos Nf + +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. {FS//STEWHSHA/OC +N +We believe that Goldsmith's and Levin's comments concerning the secreey of Stellar Wind are especially relevant to the need for legally and factiially sound OLC analysis with respect to classified national security programs. Because programs like Stellar Wind are not subject to the usual +.external checks and balances on Executive authority, OLC's advisory role is particularly critical to the Executive's understanding of potential statutory and Constitutional constraints on its actions. + +% +ISHHLO + Deputy Attorney General Comey also criticized the decision to allow asingle person to assess the legality of the program on behalf of the Department, Comey told us that Goldsmith had once aptly described the Yoo situation to him as "the perfect storm" in which the following factors converged: +the terrorist attacks of September 11, 2001; a "brilliant guy" at the Department who was "an aggressive advocate for executive power"; and a White House "determined to restore executive power," Comey expressed a degree of sympathy for Yoo, noting the extraordinary situation into which Yoo had been placed. Comey also observed that the response to Septeniber 11 essentially placed the policy burden on lawyers, who were now looked to by others for guidance as to what counterterrorism activities fell within the bounds of the law. However, Comey said that he believed White House officials "got what they ordered" by asking Yoo for opinions and restricting the number of persons with access to the program or the opiriions.228 {PSH-SH-NF- +Attorney General Ashcroft declined to be interviewed in our review, and we were thus unable to determine what his views were on the assignment of Yoo alone to conduct the legal review of the program. + +However, as noted above, witness accounts of his statements concerning the Yoo situation leave little doubt that Ashcroft was plainly upset with the White House for putting him "in a box" with Yoo. According to Goldsmith and Philbin, Ashcroft was direct about his grievances when Gonzales and Card came to see him in the hospital on March 10, 2004, including complaining that Ashcroft's Chief of Staff and until recently the Deputy Attorney General had not been allowed to be reac 1 +tread into the program, anhd that he found it "very troubling that =2 28 +_people 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. AFSHFSH-NF +We sought to obtain Yoo's and the White Housc:'sperspective on his selection as the sole Justice Department attorney to be read into Stellar Wind to provide advice on the legality of the program, We were not able to interview Yoo, who declined our request, or Addington and Card, who did not respond to our requests. {FS/ASHNE- +The OIG asked Gonzales about how the White House determined who in the Department could be read into the program, but on 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 was necessary 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 sufficient operational personnel at the NSA, 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 "have opinions" about the program. + +Yet, Gonzales also stressed to us that he welcomed the Department's reassessment of Yoo's opinions and encouraged Goldsmith and Philbin to re-examine the legal basis for the program in 2003 and 2004.229 {FS// S/ NE) +We think the proposition that the participation of Department attorneys to analyze the legality of a program 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 as a sufficient number of operational personnel were read into the program to assure its proper technical implementation, we think as many attorneys as necessary 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. {FSHSHNF +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 theorv 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 FISA, allowed the Department more efficiently to "scrub" Stellar Wind-derived information in FISA applications, and improved the handling of Stellar Wind-related discovery issues in international terrorism prosecutions. + +At SR +et Second, we do not believe that reading in a few additional Department attorneys during the first 2 years of the program would have jeopardized national security as suggested by Gonzales, especially given the hundreds of Q'pgrational personnel who were cleared into the program during the same period (see'Chart 4.1). + +In fact, as noted above, we think the highly classified nature of the program, rather than constituting an argument for limiting the OLC read-ins to a single attorney, made the need for careful analysis and review within the Department and by the NSA only more compelling. + +In sum, we concluded that the departure from established OLC and Department practices resulted in legal opinions to support the program that were later determined to be flawed. We believe the strict control over the Department's access to the program undermined the role of the Department to ensure the legality of Executive Branch actions, and as discussed below, contributed to the March 2004 crisis that nearly resulted in the mass resignation of the Department's leadership. {BS/A-SH-ANFY +. We recommend that when 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 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 when requested, consistent with national security considerations, to ensure that sensitive programs receive 4 full 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 hospitalized 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. {FS/SH-NF- +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 After Attorney General Ashcroft was hospitalized and unable to fulfill This duties, the White House was informed that Deputy Attorney General Comey had assumed the Attorney General's responsibilities. We found that the assertion by some in the White House at the time that they had not been informed of the situation was subsequently contradicted by the facts, In particular, Gonzales later acknowledged that he was aware that Comey was acting as the Attorney General 231 +(U) +Before the Presidential Authorization was set to expire on March 11, Comey, who was exercising the powers of the Attorney General at the time, told top officials in the White House - including Vice President Cheney and White House Counsel Gonzales +- that the Justice Department could not recertlfy the legality of the program as it was presently operating. The White House disagreed with the Justice Department's position, and on March 10, +2004, convened a meeting of eight congressional leaders to brief them on the Just1ce Department's seemingly sudden reluctance to. recertify the program. and on the need to continue the program. The White House did not inyvite anyone from the Department to this briefing to describe the: basis for its advice about the legality of the program;, nor did it inform the Department of its intention to hold the meeting.232 {TS// +ST/ NE} +Following this briefing, Gonzales and Card went to the hospital to ask Attorney General Ashcroft, who was in the intensive care unit recovering +230 Qur conclusion that Goldsmith advised Gonzales and Addington of the Department's concerns in December 2003 is supported by his contemporaneous notes of these events. + +In addltlon, although Gonzales told us that the first time he recalled hearing of these concerns in detail was in early March 2004, he did not dispute that Goldsmith 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, "I think that there were newspaper accounts, and that fact that Mr. Comey was the acting Attorney General is probably something T knew of." +{U) +Gonzales commented on a draft of this report he stated that the purpose of the meetmg meetlng was not fo have a "debate" between the Whlte House and the Department concernmg the legality of the programi, but rather to explore just such a legislative "fix." +from surgery and according to witnesses appeared heavily medicated, to certify the program, notwithstanding Comey's stated opposition. Yet, they did not notify Comey or aryone lse in the Department that they intended to take this action. Their attempt to have Ashcroft recertify the program did not succeed. Asheroft 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 - Comey was. + +(U) +Gon"z'ales-stated that even if he knew that Ashcroft was aware of Comey''s opposition to 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 was concern over Ashcroft's 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 prineiple that says that Mr. Ashcroft, if he decided he felt better, could +'decide, T'm feeling better and I can make this decision, and I'm going to make this decision." +(U) +We found this explanation and the way the White House handled the dispute to be troubling. Rather, we agree with Director Mueller's observation, as recorded in his program log following his meeting with Card on March 11, 2004, that the failure to have Department of Justice representation at the congressional briefing and the attempt to have Ashcroft certify the Authorization by overruling Comey "gave the strong perception 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." AFS//8H7/NF) +At a minimum, we would have expected the White House to alert Comey directly that it planned to brief the congressional leaders on the Department's position and that it intended to seek Ashcroft's approval of the program despite Comey and Goldsmith's stated legal position against continuing certain activities under the program. Instead, White House officials briefed congressional leaders and sought to have Attorney General Ashcroft recertify the program from his hospital bed without any notice to Comey 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. {FS7/3H1NF)- + +## C. Recertification Of The Presidex_Ntial Authorization And Modification Of The Program (U) + +As described in this chapter, the Department had notified Gonzales and Addington of its concerns about the legality of aspects of the program for several months. + +In fact, the Department had made clear to the White House in December 2003 and more emphatically in a series: of meetings.in March 2004 that it believed that aspects of the program could not be legally supported in their existing form. Comey and Goldsmith were clear i in their advice to the President and other White House officials. + +At the liospital, Ashcroft also expressed deep concern +[T +and told Gonzales and Card that he supported the position of his subordmates We beheve that Ashcroft acted admirably under arduous circumstances. + +-{F +- +; +Despite the legal concerns uniformly expressed By senior:Department of Justice leaders, the White House, through White House Counsel Gongzales, recer tified the Authorization, allowing the program to continue substantively unchanged. {FS17/SH-/NF +Only after Mueller, Comey, and other senior Department and FBI +officials made known their intent to resign if the White House continued the program unchariged, despite the Department's conclusion that aspects of the program could not be legally supported, did the President direct that the issue be resolved, and the program be modified to address the Department's legal concerns. Because we were unable to interview key White House officials, we could not determine for certain what caused the White House to change its position and modify the program, although the prospect of mass resignations at the Department and the FBI appears to-have been a significant factor in this decision. 233 According to Corhey, the President raisec a concern that he was hearing about these problems at the last minute, and the President thought it was not fair that he was not told earlier about the Department's legal position. + +In fact, as Comey informed the President, the President's staff had been advised of these issues "for weeks." {FS/SH/NE- +Finally, we believe that the Department and FBI officials who resisted the pressure to recertify the Stellar Wind program because of their belief that aspects of the program were not legally supportable acted courageously and at significant professional risk. We believe that this action by Department and FBI officials - particularly Ashcroft, Comey, Mueller, whether he would resign if the Presides responded that he "would have to g p go Goldsmith, Philbin, and Baker - was in- accord Wlth the highest professional standards- of the Justice Department. + +L +: + +## Chapter Five Stellar Wind Program's Transition To Fisa Authority (June 2004 Through August 2007) + +In this chapter we examine the transition in stages of the Stellar Wind programi from presidential authority to FISA authority. We first describe the FISA Court's approval in July 2004 of the government's application to +' +acquire foreign intelligence information through the collection of bulk e-mail meta data (basket 3 information). This application was based on a legal theory related to FISA's pen register and trap and trace device provisions, We next discuss. the government's successful May 2006 application to the FISA Court for an order to obtain bulk telephony meta data (basket 2 +information) by the production of business records by certain telecommunications carriers. We then describe the government's interaction with the FISA Court to place under FISA the government's +} +authority to intercept the content of certain communications involving both domestic and foreign telephone numbers and e-mail addreesses (basket 1 +information). + +Finally, we summarize legislation enacted in August 2007 and July 2008 to amend FISA to address, among other concerns, the difficulty the government encountered in obtaining FISA authority for content collection, as well as the government's contention that certain provisions of FISA had failed to keep pace with changes in telecommunications technology. + + +' + +## I 'E-Mail Meta Data Collection Under Fisa {Eshshhne) Decision To Seek A Pen Register And Trap And Trace (Pr/Tt) Order From The Fisa Court {Fs{Sh-Nf + +T +'lbm told us that he encountered some opposition to the FISA +approach from. Counsel to the Vice President David Addington, who argued that the FISA" Court was unconstitutional arid questioned the need to seek its-authorization for e-mail meta data collection. Philbin said that he responded that obtaining an order from the FISA Court was "ironclad safe." +Baker recalled attending at least one meeting at the White House with White House Counsel Gonzales and Addington to discuss whether to seek an order from the FISA Court based on FISA's pen register and trap and trace device provisions (a PR/TT Order) and how the FISA Court should be approached to obtain such an order. Baker stated that during the meeting Addington said, "We are one bomb away from getting rid of this obnoxious Court." +Baker said Addington also stressed to him that there "is a lot riding on your +[Baker's] relatlonshlp with this Court." {FS/HASTEWHSHAOSHNE +In contrast, Hayden told us that he did not have any concerns about transitioning the bulk e-mail meta data collection to FISA authority and was enthusiastic 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 meta data analysis, he believes that involving an additional branch of governmerit in the activity provided some clarity on this subject. + +Gonzales told us that he did not recall much about the process of filing the application with the FISA Court to obtain e-mail meta data through a PR/TT Order, but stated that there may have been individuals at the Wh1te House who expressed concern that seeklno the Order from the +; proessmnals told hland that he would not have supported the PR / TT +apphcatlon if NSA D11'ector I-Iayden and others did not believe the collection also told us that there was concern at the White House that filing the PR/TT +,applic?ati'qn' could lead to an unauthorized disclosure of the program. + +## 2. 'Birie'Fing For Judge Kollar-Kotelly (U) + +' +|| Baker, Philbin, and Goldsmith met with Gonzales and Addmgton at the White House 'to discuss how to approach Judge Kollar-Kotelly concermng the proposed PR/ TT apphcatlon and it was. + +decided to give her a "presentation" aboyt +. + +The was provided to Judge Kollar-Kotelly on were Attorney: General Ashcroft, Centre Intelhgence Agency D1rector George Tenet, FBI Director Mueller, Hayden, Gonzales, OLC Assistant Attorney General Goldsmith, Philbin, Baker, and Director of the Terrorist Threat Integlatlon Center (TTIC) John Brennan. According to an agenda of the brlefing, and as conflrmed to the 0lG, the presentatlon was g1ven in three +.collectmn 1nclud1ng how the information was to be collected arch1ved quened and minimized. + +This portion of the presentat1on stressed that the NSA required the collection of meta data in bulk-to maximize analytic capabilities through contact chainingfl E + toidentify terrorist communications.23* Third, Philbin explamed 'the governmerit's legal argument that FISA authorized the Court to approve a broad appllcatmn to collect e~ma11 meta data under the statute s pen register and + +## 3. The Pr/Tt Application {Es//8H/Rf) + +Philbin, Baker, and at least two Office of Legal Counsel attorneys assumed primary respon51b111ty for drafting the PR/TT application to the FISA Court and a memorandum of law in support of the application.235 +(Cont'd.) +Baker said that Judge Kollar-Kotelly was given a "read-ahead copy" of the application, since it was standard practice to give the FISA Court draft +-applications for review. ~ES//SHNF +-commumcatmns llnks between such oer The result products_would then be tipped out as leads to the FBI and other elements of +_u > +Intelligence Community to find members of L += +: +disrupt their activities, and prevent future terrorlst attacks in the Umted States.236 (FS/HASTEW/ +ST OC/NE)- +The Justice Department constructed its legal argument for this novel use of pen register and trap and trace devices around traditional authorities provided under FISA. Specifically, 50 U.S.C. 1842(a)(1) authorizes the Attorney 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 any 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 50 +U.S.C. 1842(c)(1); a declaration of Dlrector of Central Intelligence Tenet describing the threat posed byf +- +; a certification from Attorney General Ashcxo t stating that the information hkely to be obtained from the pen register and trap and trace devices was relevant to an ongoing investigation to protect against international terrorism, as required by 50 U.S.C. 1842(c); and a memorandum of law and fact in support of the application, {8778/ NFI +236 +T +icati nphasized that Internet e-mail is one of the primary methods by wh1cl commumcate The memorandurn of law in sy port of the against international terrorism or clandestine intelligence activities, provided that such investigation of & United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution which is being conducted by the Federal Bureau of Investigation under such guidelines as the Attorney General approves pursuant to Executive Order No. 12333, or a successor order. (F377/8H/N +FISA incorporated the definitions of the terms "pen register" and "trap and. + +trace device" from 18 U.S.C. 3127, Thus, FISA adopted as the definition of a "pent register" +a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic commurication is transmitted, provided, however, that such information shall net include the contents of any comimunication. + +{ES/+SH-NE) +18 U.8.C. 3127(3). FISA also adopted as the definition of a "trap and trace device" +a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic +. communication, provided, however, that such information shall not include the contents of any communication. (TS//SI//NE)- +18 U.S.C. 3127(4). + +In-its application the government argued that the NSA's proposed collection of meta data met the requirements of FISA by noting that the ricta data sought comported with the "dialing, routing, addressing, or signaling information" type of data described in FISA's definitions of pen registers and trap and trace devices. The government also noted that nothing in these definitions required that the "instrument" or "facility" on which the device is placed carry communications of only a single user rather than multiple users. + +The government next argued that the information likely to be obtained from the pen register and trap and trace devices was relevant to an ongoing investigation to protect against international terrorism, as certified by the Attorney G +eral under 50 U.S.C. 1842(c). + +In support of this "certification ST +overnment stated that the FRL +was conductine more than of re LNE POVCLLL +The government acknowledged that "the overwhelming majority of comumumnications from Wthh meta data will be collected will not be associated witht += +22l +" However, the government maintairied that FISA d1d not. 1mpose any requirement to tailor collection prec1sely to obtain only communicatiens that are str1ctly relevant to the investigation. The government argued that, in any event, "the tailoring analys1s muist be informed by the balarice between the overwhelming national secunty interest at stake . + +. + +, and the minimal intrusion into privacy interests that will be 1mp11cated by collecting meta data - especially meta data that will niever be seen by a human being unless a connection to a terrorist-associated e-mail is found." RS SN +The government also stated that the NSA needed to collect meta data in bulk in order to.effectively use analytic tools such as contact chaining that would enable the NSA to discover enemy +"communications. Thisargument echoed a premise many officials told us about the nature of intelligence gathering in general. + +For example, Baker likened the search for useful intelligence, particularly in the meta data context, to fmdmg a rieedle in a haystack, stating, "the only way to find the needle is to have the haystack." Gonzales argued that "to connect the dots you first have to collect the dots." (FS/AFSLLNE] +ere described as rep esented that for most of the proposed collection on +| it was "overwhelmingly hkely" that at least one end of the transmitted communication gither originated in or was destined for locations outside the United States, and that in some cases both ends of the commumcatlon were. entlrel. overseas.?37 Hovvever the government +'As discussed below, the government argued and the FISA +"timately agreed that the above-described collectio +: +satisfied the definitions of pen register and trap and trace devices under FISA and Title 18. + +See 50 U.S.C. 1841(2); 18 U.S.C. 3127(3) & (4). + +{ES/SHHNE +The application also explained the proposed archiving and querying process. According to the application, the collected meta data would be stored in a secure NSA network accessible only through two administrative login accounts and by specially-cleared meta data archive system administrators. Each time the ddatabase was accessed, the retrieval request would be recorded for auditing purposes. (FS7//8H7/NF +The application proposed allowing 10 NSA analysts access to the database.238 The NSA analysts were to be briefed by the NSA Office of General Counsel concerning the circumstances under which the database could be queried, and all queries would have to be approved by one of seven senior NSA officials, +239 {FSH-SH-NF + The application explained that the bulk collection would be gueried with particular e-mail addresses in order to conduct chaininglffEii +: +proposed that queries of the e-ma 'meta data archive would when the e-mail address met the following standard: +based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are. + +facts giving rise to a reasonable articulable suspicion that a particular known e-mail address is associated withj In addition, the NSA proposed applying the minimization procedures in the United States Signals Intelligence Directive 18 (USSID 18) to minimize the information reported concerning U.S. persons. According to the application, compliance with these minimization procedures would be ymber of NSA analysts was increased to 15 +monitored by the NSA's Inspector General and General Counsel. The government also proposed that in each renewal application the NSA would report to the FISA Court on queries that were made during the prior period and the application of the reasonable articulable suspicion standard for determining that queried addresses were terrorist-related. TS/} SHNEY +'Therapplifcat:mn and supporting documents explained how the NSA +intended to use the collected meta data. The NSA sought to use the meta application, the N +that through external intelligence gathering and internal analysis it would meet the proposed querying standard on average less than once a day. The NSA further estimated that these queries woulld generate approximately 400 tips to the FBI and CIA per year.24! Of these tips to the FBI and CIA, the NSA projected that 25 percent would include U.S. person information, amounting to leads including information on about "four to five U.S. persons each month." {ES/1SH-AF) + +## Judge Kollar-Kotelly Raises Questions About Pr/Tt 4. Application {Ts//Sl//Nf}- + +On Judge Kollar-Kotelly wrote Baker to inform him that she was considering the application and was in the process of preparing an Qpillion'-and order in response to it. + +She wrote that before the opinion and Order could be completed, however, she required written responses to two questions: + +(1) Apart from the First Amendment proviso in the statute (S0 +U.S.C. 1842(a)(1), (c)(2)), what are the general First +Amendment implications of collecting +and retaining this +large volume of information that is derived, in part, from the +communications of U.S. persons? +(2) For how long would the information collected under this +authority continue to be of operational value to the +counter-terrorism investigation(s) for which it would be +collected? {FS/4/SLLNE) +Baker responded in a letter to the FISA Court onjgiE +Concerning the first question, Baker's letter asserted that the proposed at this estimate based on the assumption that each query could be expected to generatglle-mail addresses "one level out," anHaddresses "two levels out." The overall number of direct and indirect contacts with the initial seed address would be significantly reduced using "analytical tradecraft." TS LA +SN} +collection activity was consistent with the First Amendment and that he could find no reported decisions holding that the use of pen register and trap and trace devices violated the First Amendment. PSASHHANE) +In his letter, Baker argued that although the meta data collection would include entirely innocent communications, a good ~faith mves'ugahon does not violate the First Amendment simply because it is "broald] in scopeTM (quoting Laird v, Tatum, 408 U.8. 1, 10 (1972)). + +He also wrote that the use. of the collected meta data would be "narrowly constramed" because the querying standard for the meta +; +reasonable articulable suspicion" of a nexus tof +- +Regarding Judge Kollar-Kotelly's second question concerning how long the collected meta data would continue to be of operatmnal value, Baker wrote that, based on the analytic judgment of the No o SHCH +information woeuld continue to be relevant tof il +. + +[forat least 18 months. Baker also advised that the NSA be, ved the e-mail meta data would continue to retain operational value beyond 18 months, but that it should be stored "off-line" and be accessible to queries only by a +'spec1allycleared administrator, Baker proposed that 3 years after the - +18-month timeframe, or 4% years after it is first collected, the meta data cotild be destroyed.242 (FS/+SH-NE) + +## 5. Fisa Court Order (U) + +In response to the application and follow-up questions, on July 14, +2004, Judge Kollar-Kotelly signed a Pen Register and Trap and Trace Oplmon and Order based on her findings that the proposed collection of e-mail meta data and the government's proposed controls over and dissemination of this information satisfied the requirements of FISA. + +The Order granted the government's application in all key respects. + +It approved for a period of 90 days the collectlon Wltl'nn the United States of e-mail meta datag +- +, +. | The Order also required the government to comply w1th certam add1t1onal restrictions and procedures either adapted from or not originally proposed in the application. {FS//HCS//SLL/NE) +In the Order, the Court found that the information to be collected was +"dialing, routing, addressing, or signaling information" that did not include maintain bulk 'meta data on-line for 4% years after which time it must be destroyed. + +According to the NSA Office of General Counsel, the NSA still follows this retention the contents of any communpication. The Court stressed that it was on'l'y authorizing collection of the ceategories of information delineated in the application, but acknowledged that addltlonal information "could be gleaned" from that meta dataj +' +- +. + +- +| The Court found that the means by wh thel +|| +Elcategories of meta data were to be collected met the FISA dfiflIllthl'l of a "pen register," +and that the means for collecting th category of meta data satisfied the FISA definition of a "trap and trace device." +See 18 U S.C. 3127(3) & (4), as incorperated in FISA at 50 U.S.C. 1841(2). + +TR +#3 +The Court further found that the government satisfied FISA's requlremcnt that the apphcatlon certify that the information likely to be obtained is relevant to an ongoing investigation to protect against international terrorism. The Court concluded that, "under the +ircumstances of this case, the applicable relevance standard does not requ1re a statlstlcal "4ight fit' between the volume of proposed collection and +: +ller proportion of information that will be directly relevant to +| FBI investigations."243 {FSHESHSHHNE- +The Court also agreed with the government's position that the privacy interest at stake in the collection of e-mail meta data did not rise.to the +"stature protected by the Fourth Amendment," and that the nature of the intrusion was mitigated by the restrictions on accessing. and disseminating the 1nformat10n, only a small percentage of which would be seen: by any persomn. + +: +In sum, the Court concluded that the use of pen register and trap and trace devices to collect e-mail 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_ +reasonably effective means of detecting and monitoringf communications under the electronic surveillance provisions of FISA. + +The Court noted important differences in the two types of collection, including the fact that overbroad electronic surveillance requires a showing of probable cause to believe the target is an agent of a foreign power, while the bulk meta data c'ollectlon under FISA's pen register and trap and trace device provisions merely requires a_ +L +the overbroad collection is. + +justified as necessary to discover unknowr{Z +T . persons. The Court also contrasted the high pr1vacy interests at stake w1th respect to content communications with the absence of a privacy interest in meta data. {FS/SHNF +However, the Court also was concerned that "the extremely broad nature of this collection carries with it a heightened risk that collected information could be subject to various forms of misuse, potentially involving abridgement of First Amendment rights of innocent persons." The Court noted that under 50 U,S.C. 1842(c)(2), pen register and trap and trace information about the communications of a .S, person cannot be targeted for collection unless it is relevarnt to an investigation that is not solely based upon the First Amendment, Therefore, the Court ordered that the NSA modify its criterion for querying the archived data by inserting the following underlined language, as shown below: +| +willqualifyasaseedf +2 +SA +based on the factual:and practical considerations of everyday life on which reasonable and prudent persons act, there are facts giving rise to a reasonable articulable suspicion thata p articular known e-mail address is associated with Al +.. + +- +er, thatanl +@ +|believed fobe +| + shall not be regarded as associated with +: +- +solely on the +- +th ted by the First Amendment to the Constitution. {FS7/7FHESHSHNF- +Regarding the storage, accessing, and disseminating of the e-mail meta data obtained by the NSA, the Court ordered that the NSA must store the information in a manner that ensures 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 Court further ordered that the e-mail meta data "shall be accessed only through queries using the contact chainingfh +.. + +as described by the NSA in the government's application. {FS+HHESH/SH/7/NF) +The Court noted the "distinctive legal considerations" involved in implementing the authority the Court was vesting in the NSA. + +Specifically, 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 +'s decision to target an e-mail address (sometimes referred to as a "see +") would be made without judicial review. + +Therefore, the Court ordered that the NSA's Office of General Counsel would be responsible for training analysts to comply with querying standards and other procedures and "to review the legal adequacy for the bas1s of such +| +queries, including the First Amendment proviso. . + +. + +." + +: +\ +As suggested by Baker in t ponse to Judge Kollar-Kotelly's inquiry regarding T the collected data; the Court ordered that the e-mail meta data shall be available for 18 months for querying. The Court further ordered that after the 18-month period, the data must be transferred to an "off-line" tape system from which it could still be accessed for querying upon approval of the NSA officials authorized to approve queries, and that such meta data must be destroyed 4%, years after initially collected. + +{FS; +: +The Court's Order was set to expire after 90 days. The Court required that any application to renew or reinstate the authorlty granted in the Order must mclude a report dlscussmg querles made since the prior applrcauon +' +al stanidard to those querles, means of collectmn of the pen register and Finally, the Court issued separate orders to assist the NSA with the installation and use of the pen reglster and trap and trace devices and to maintain the secrecy of the NSA's act +' +called "secondary orders," +The NSA was directed to compensate: the carriers for all assistance prov1ded in connection with the PR/TT Order. + +_\L"['C\ +/ /U("Ql /QT/ /NEF) +T +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 all the authorl it sought to conduct the bulk e- -mail meta data collect +- +"' +'obtammg the Order from the FISA Court also prov1ded an "air of legitimacy" +to the program.?% {FSHSTEW/18H/OC/NF +We discuss below the President's directive and the OLC memorandum that was drafted to analyze its legality. (TS ASTLW /ST /QC/NE) + +## 1. The President's August , 2004, Memorandum To The Secretary Of Defense (?S++Shh}F) + +On August 9, 2004, the same day a routine Presidential Authorization was issued to continue Stellar Wind, the Pres1dent sent a separate memorandur'n to t . + +erdinethe +1las of the e-mail Augu t9 2004 Presuientlal Authonzatmn Avthorizations), the NSA was authorized tof party tothe commumcatmn belonged to +(2) the purpose of the search was to produce forelgn 1ntelh-ence 1nformauon +~ +Jack Goldsmith resigned as Assistant Attorney General for the Office of Legal Counsel on July 30, 2004, Goldsmith was replaced by Daniel Levin, who served as the Acting Assistant Attorney General for OLC until February 2005. + +(U) +During Ia lat +2004, at the request of Comey and Ashcroft, Levin began +247 The final version of the OLC memorandum was signed by Levin on February 4, +2005. + +Levin told the OIG that a "policy decision" was made to limit application of the memorandum to the specific purposeffil +' += +s However, Levin stated that, based on his analysis of the issue, he believed thatf +_ +Thus, the President asserted extrajudicial authority to order the further use of e-mail meta data collected under Stellar Wind for the limited +'purp':os'"_gdesciribed in his August 9 memorandum. The FISA Court was notified of this action, although the government did not seek its permission. + +) + +## . Non-Compliance With Pr/Tt Order {Fs{/Sh-/Nf} + +As with other orders issued under FISA, the PR/TT Order was renewed every +90 days. During the early renewals, two major instances of Hon-compliance were brought te-the RISA Court's attentiori. + +As described below, these violations of the Order resulted primarily from the NSA senior officials' failure to adequately communicate the technical requirements of the Order to the NSA operators tasked with implementing them, and from miscommunications among the FISA Court, the Justice Department, and the NSA concerning certain legal issues. {F877/8H/7/NF) + +## 1. Filtering Violations {Ts//Sh//NF} + +. + +OIPR filed a Notice of Compliance Incidents with the FISA +Court. In the Notice, Baker stated that the com liance incidents cited in the Notice "raise compliance issues with about:w& the collection authorized by the Court."2# The Notice included asan attachment a letter from NSA Gernieral Counsel Robert Deitz to Baker +03)(1) +b?(3) +. + +- +__could be gueried for any purpose. + +Levin told us that, other than Addington, no one else was pushing to broaden the memorandum's application_ +(_TQ '/ l/ Q7T "X/I/ l, ST '/ ,/f\("ll 1\;[}1'_)__ +Bake1 told us. that Jtde Rollar {otefly was not nappy about the +' +i +1ed an Order Regarding +- Comphance Order) +were attested to by its Director and, at the Government s mVJtatlon adopted as provisions of the orders of this Court." The Court found that the violations "resulted from deliberate actions by NSA personnel," as dlstmgtushed frorn technical failures. The Court stated it was also troubled ation of the violations, which extended from July 14 through +"'f and that the Court was reluctant to issue a renewal of t same. day, the Court issued an Order to address}| + +-sarding Reauired Information for Authorities Involvmg +[ +, +. + +_ be accompanied by +'a sworni declaration by' the Secretary of Defense attestmg to the stdte of compliance with the PR/TT Order and a description of the procedures that would be used to ensure comphance AFSHSHINF +Ong B\ the government moved for an extension of time +(until EIEREEAS +) within which to provide the Secretary of Defense's declar 1on The motlon Wthh the Court granted, assured the Court that +' b)(i) (b}(d) +f had been terminated on +- +( +A had moved to a v +"?)m'(b)( ) +through S +' +| The NSA also represented that it reconstructed its contact cha_mmg database using only properly obtained meta data and purged the unauthorized meta data from the system. {TSAASLL/NE) +A declaration by NSA Director Hayden accompanying the government's motion stated a total ofjgg)e- -mail addresses were tipped as leads to the FBI and CIA during the violation period and that] +of these leads.-may have come from the unauthorized collection. Hayden wrote that +- requmng that ani aiihcatlen this'lead was purged from the FBI's and CIA's databases on The NSA Office of the Inspector General subsequently issued a report on its investigation of the unauthorized collections. The NSA OIG report stated that the filtering violations "probably led to actual unauthorized collection, but we have not been able to determine the extent of such +_and we are not certain that we will be able to do g0." The report systemic management failures within the Signals Intelligence Directorate (SID}], and & complete lack of program management with regard to collection." The report stated that while the training provided by the NSA Office of General Counsel was +"yigorous, conscientious, and compliant with the July 14 Order, it was inadequate in scope." +ISTEWHHESTS +' +Aceording to the report, the NSA removed as much of the tainted collection from the PR/TT database as hossible. The NSA was unable to segregate unauthotized collection from e Iso it rebuilt that portion of the PR/TT database from (b)(1) (b)m _ +(the day after the violation was discovered), forward. Moreover, according to the NSA OIG +report, analytical personriel were restricted from accessing the unauthorized meta data. + +## 2. Fisa Court Renews Pr/Tt Order (Ts//Su//Uf) + +T +date the government filed its first renewal applicati +_Application sought authorization to collect e-mail meta data o and stated tha The FISA Court's PR/TT Order expired on )Of)l" ('b)r(k)') . + +On that on. The Renewal by, B)E) +ad fully complied with the PR/TT Order with respect to{QI0R +ment did not seek reauthorization for collection ue to a variety of operatiorial reasons which the app ion did not specify. {FSAFSH-PHE +authorlzmg throuh e R =he use of pen regist +: +trace devices atff +. + +to collect e-mail meta data The Renetwal Order and the orlglnal Order were similar in most respects. + +However, in the Renewal Order the. Court requlred the NSA to submit +,reports every 30 days concermnuuermes made smce the pnor report and +_describing an v changes made tol +. + +and the_ +Baker told us that during one of his "over31ght" visits to the NSA +following the FISA Court's PR/TT Order, he was given a demonstration of how the NSA analysts processed the e-mail meta data, including an explanatlon of how e-mail meta data is collected and queried. Baker said he +; +18 among the pleces of: data that mlght be used to meet the + +## D. Subsequent Pr/Tt Appl + +As described above, the PR/TT Order was first renewed o B +) +and was renewed by subsequent orders of the FISA Court at Ppro mat_ely 90day inter'valsv.%'* {TS//S1//NE) +. + +|| {he FISA Court issued a Supplemental Order requiring the government to enhance its reporting to the Court of the foreign intelligence benefits realized under the PR/TT Orders. Writing for the FISA +Court; Judge Kollar-Kotelly stated that the authority granted under these Rolue o orders allowed the NSA "to collect vast amounts of i'nforma;tiOna}bQut,eamajl +| communications[,]" but that "the Court is unable on the current record to-ascertain the extent to which information so collected has actually resulted in the foreign intelligence benefits originally anticipated." +Supplemental Order at 1-2. The government responded with a motion requesting that, in light of prior briefings it had given the FISA Court, it not be required to fully comply with the Supplemental Order. + +Itis not clear what if any specific action the FISA Court took in response to this motion, althotigh based on the OIG's review of the PR/TT docket the government continued to submit regular reports to the FISA Court. + +b7E +bl, b3, b7E + +## Ii. Telephony Meta Data Collection Under Fisa {Fs//Sh/Nf|- + +The second part of the Stellar Wind program brought under FISA +au'thonty was the NSA's bulk collection of telephony meta data (basket 2). + +As described in Chapter Three, under this aspect of the Stellar Wind program the NSA obtained the call detail records of telephone calls domestic. and.mternatmnal - +: +bl, b3, b7E +number of each call, and the date, time, and duration of each call. + +do niof include the substantive content of any communication or the name, address, or financial information of a subscriber or customer. + +(TS L4 SLLANE) +nature of the telephony collection provided the NSA the ability to conduct +- +| contact chainingg = +The transition of bulk telephony meta data collection from Presidential Authorization under the Stellar Wind program to FISA authority relied on a provision in the FISA statute that authorized the FBI to seek an order from the FISA Court compelling the. production of "any tangible things" from any business, organization, or entity, provided the items-are for an authorized investigation to protect against international terrorism or clandestine intelligence activities. + +See 50 U.S.C. 1861. + +Orders under this provision commonly are referred to as "Section 2157 orders in reference to Section 215 of the USA PATRIOT ACT, which amended the "business records" provision in title V of FISA.258 The "tangible things" the goverriment sought in the Section 215 application described in this section were the call detailrecordsf il il P +We describe below the circumstances that led to the government's decision to transition the bulk collection of telephony meta data from presidential authority to FISA Authority. We then summarize the government's initial application and the related Court Order. + +## A. Decision To Seek Order Compelling Production Of Call Detail Records {Fs//Sl/Nf + +The timing of the Department's decision in May 2006 to seek a FISA +Court order for the bulk collection of telephony meta data was driven primarily by external events. On December 16, 2005, The New York Times published an article entitled, "Bush Lets U.S. Spy on Callers Without Courts." The article, which we discuss in more detail in Chapter Eight, described in broad terms the content collection aspect of the Stellar Wind program, stating that the NSA had "menitored the international telephone calls of hundreds, perhaps thousands, of people inside the United States without warrants over the past threg, in an c possible On December 17, 2005, in response to the article, President Bush publicly confirmed that he had authorized the NSA to intercept the international communications of people with "known links" to al Qaeda and related terrorist organizations (basket 1). On January 19, 2006, the Justice. + +Department issued a document entitled "Legal Authorities Supporting the Activities of the National Security Agency Described by the President" and informally referred to as a "White Paper," that addressed in an unclassified form the legal basis for the collection activities that were described:in the New York Times article and corifirmed by the President. + +## B. Summary Of Department's Application And Related Fisa Court Oxder {S/Nf} + +As noted previously, applications to the FISA Court that seek an order compelling the production of "tangible things" are commonly referred to as +"Section 215" applications, in reference to Section 215 of the USA PATRIOT +ACT. + +Section 215 authorizes the FBI to request a FISA Court, order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concernirig a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is riot conducted solely upon the basis-of activities protected by the first amendment to the Constitution. + +(U) +50 U.S.C.. 1861(a)(1).26! + +Section 215 does not require that the items sotight pertain to the subject of an investigation; the government need only demonstrate that the items are relevant to an authorized investigation.262 +(0) +On May 23, 2006, the FBI filed with the FISA Court a Section 215 +application seeking authority to collect telephony meta data to assist the +; +' +finding and identifying known and unknown members or agents ol +' +- +| +lin support of thef +. + +related FBI +investigations then pending and other Intelligence Community operations. + +b1, b3, The application requested an order compelling v to b7E +produce (for the duration of the 90-day order) call detail records relating to all telephone communications maintained by the carriers. The application described call detail records as routing information that included the accommodation facilities, physical storage facilities, and vehicle rental facilities. + +(U) +originating and terminating telephone number of each call, and the date, time, and duration of each call. The application stated that telephony meta data did not include the substantive content of any communication or the name, address, or financidl information of a subscriber or customer. + +According to the application, the majority of the telephony meta data provided to the NSA was expected to involve communications that were (1) +between the United States and abroad, or +(2) wholly within the United States, including local telephone calls. +The application acknowledged that th collection would include records of communications of U.S. persons located within the United States who were not the subject of any FBI investigation. However, relying on the precedent established by the PR/TT Order, the application asserted that the collecti needed for the NSA to perform analysis to find known f +| and to identify unknown operatives, some of whom may be +"in the United States or in communication with U.S. persons. The +' +application stated that it was not possible to determine in advance which particular piece of meta data will identify a terrorist. The application stated that obtaining such bulk data increases the NSA's ability, through contact-chaining +| to detect and identify members -o]f- +- +, B +254 In other words, according to the application, meta data analysis is possible only if the NSA "has collected and archived a broad set of metadata that contains within it the subset of communications that can later be identified as terrorist-related."265 {FS//SH-F +coneideratians of everyday life on which reasonable and pruderit pei'ifspn'sact there are facts giving rise to & reasonable articulable suspicion that the regarded as assoc1ated w1th . + +. + +solely on the basis of activities that are protected by the First Amendment to the Constitution." {FS/SH/NF- +Accordmg to the application, the NSA estimated that only a tiny fraction (1 in 4 million, or 0.000025 percent) of the call detail records +.mcluded in the database were expected to be analyzed The results of any The application also-proposed restrictions on access to, and the processing and dissemination of, the data collected that were essentially identical to those included in the PR/TT Order. These included the requirement that queries be approved by one of seven NSA officials or managers and that the NSA's Office of the General Counsel would review and approve proposed queries of telephone numbers reasonably believed to be used by U.S. persons.267 {FS/+SH-NF} +of meta data, such as controls on the dissemination of any U.S. person information, the creation of a capability to audit NSA analysts with access to the meta data, the destruction of collected meta data after a period of 5 years (the destruction period for e-mail meta data was 4% years), and a review by the NSA's Inspector General and General Counsel conducted within 45 days of implementing the FISA Court order that assessed the A +{Cont'd.) +On May 24, 2006, the FISA Court approved the Section 215 +apphcatlon The Court's Order stated that there were reasonable grounds to believe that the telephony meta data records. sought were relevant to authorized investigations being conducted by the FBI to protect against international terrorism. The Order incorporated each of the procedures proposed in the government's application relating to access to and use of the meta data. These procedures included a requirement that any application to-renew or reinstate the authorlty for the bulk collection contain:a report descrlbmg {1) the queries made since the Order was granted; (2) the manner in which the procedures relating to access and use of the meta data were applied; and (3) any proposed changes in the way in which the call detail records would be received from the communications cartiers. The Order also requires the Justice Department to review, at least every 90 days, a sample of the NSA's justifications for querying the call detail records. {FS/HASTLNE). + +Through March 2009, the FISA Court renewed the authorities granted in the: May 24 Order at apprommately 90-day 111tervals W1th some +'215 Orders did not require the NSA to modlfy +1ts use of the telephony meta data from an analytical perspective. However, as discussed below, the FISA +Court drastically changed the authority contained in its March 2009 Section +715 Order following the government's disclosure of incidents involving the NSA's failure to comply with the terms of the Court's prior orders. + +adequacy of the management controls for the processing and dissemination of U.S. person information. -{FS/SH-ANF + +## . Non-Compliance With Section 215 Orders {Es//Shhmf + +On January 9, 2009, representatives from the Departments National Security Division attcnded a briefing at the NSA concerning the telephony meta data collection. + +During the course of this briefing, and as confirmed by the NSA in the days that followed, the Department came to understand that the NSA was querying the telephony meta data in a manner that was riot authorized by the FISA Court's Section 215 Orders. + +Specifically, the NSA was.on a daily basis automatically querying the meta data with thousands of telephone identifiers from an "alert list" that had not been determiined to satisfy the reasonable articulable suspicion (RAS) standard the Court requu'ed be met before the NSA was authorized to "access.the archived data" for search or analysis purposes. 269 +PGS/ ST/ NE) +The alert llst contamed telephone 1clent1flers that were. of 1nterest to conduct contact chamm + 7 +However, automated ana ys erierated by non-RAS appto\}od identifiers were not permitted; instead, the alerts were sent to analysts todetermine whether chaining was warranted in accordance with the RAS standard. (RS//SH-/NE) +On January 15, 2009, the Justice Department notlfied the FISA Court that the NSA had been accessm thetelehon +; +) +Wi L-RAS +bl, b3, approved 1dent1f1ers P +- +' +. + +b7E +0 On January 28,' e +269 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 communi cations. + +## {Fs7 7Sn + +270 Pollowing the Department's notice to the Court, the NSA attempted to complete a software fix to the alert process so that "hits" against the telephony meta data generated by non-RAS-approved telephone identifiers were deleted and that only "hits" generated by RAS-approved identifiers were sent to NSA analysts for further analysis. + +The NSA also attempted to construct a new alert list consisting of only RAS-approved telephone identifiers, However, the implementation of these modifications was unsuccessful and on January 24, 2009, the NSA shut down the alert process completely, (fPSf/S-I-f-fN-F-} +'Court issued an-order stating that it was "exceptionally concerried about what appears to be a flagrant violation of its Order in this matter[.]* The Court required the government to file a brief to "help the Court assess whether the Orders in this docket should be modified or rescinded; whether other remedial steps should be:directed; and whether the Court should take action regarding persons responsible for any misrepresentations to the Court of violation of its Orders, either through its coritempt powers or by referral to appropriate investigative offices." The Court alsa required the government to address several additional specific issues, including who knew that the alert list being used to query the meta data included identifiers that had not been determined to meet the reasonable and articulable suspicion standard, how long the "Unauthorized querying" had been conducted, and why none of the entities the Court directed to conduct reviews of the meeta data collection program identified the problem earlier.271 +On February 17, 2009, the government responded to the Court's Ordeer and acknowledged that the NSA's previous descriptions to the Court of the alert list process were inaccurate and that the Section 215 Order did not 'authorize the government to use the alert list in the manner that it did. + +The government described for the Court in detail how the NSA developed procedures in May 2006 to implement the Section 2 15 authority that resulted in the NSA querying the telephony meta data with fion-RAS +approved telephone identifiers for over 2 years in violation of the Court's Orders, and how those procedures came to be described incorrectly to the Court. According to the government; the situation resulted from the NSA's interpretation of the term "archived dataTM used in the Court's Orders and the NSA's mistaken belief that the alert process under the Section 215 +-authority operated the same as the alert process under the Pen Register/Trap and Trace authority.2'2 The government told the Court that +"there was never a complete understanding among key personnel" who reviewed the initial report to the Court describing the alert process about + +372 +The +NSA understood the term "archived data" in the Court's Order to refer to the +t}.. + +"archived," repository of telephony meta data. + +For this reason, in the NSA's view, it was not required to limit the alert list to RAS-approved identifiers. ATS /STy What certain terminology was intended to mean, and that "there was no smgle person who had complete technical understanding of the BR FISA +system architecture." {FS/+8H-F +The government ar gued that the Section 215 Orders should not be rescirided or modified "in light of the significant steps that the Government has already taken to remedy the alert list compliance incident and its effects, the sighificant oversight modifications the Government is.in the process of implementing, and the value. of the telephony metadata collection +'to the Government's national security mission. 1278 Among the several measures the government highlighted to the Court was the NSA Director's decision to.order "end-to-end system engineering-and process reviews +(technical and operational) of NSA's handling of [telephony] metadata," Less than two weeks after the government filed the response summarized above, the government informed the Court that the NSA had identified additional compliance incidents during these reviews.27* {FS//SH/NE}- +In Orders dated March 2 and 5, 2009, the FISA Court addressed the compliance incidents reported by the government and imposed drastic changes to the Section 215 authorities prev1ously granted. The Court first addressed the NSA's interpretation of the term "archived 'data." The Court said the interpretation "strains credulity" and observed that an mterpretatlon that turns on whether the meta data being accessed has been +"grchived" in a particular database at the timie of the access would "render compliance with the RAS requirerment merely optional." (RS +ST/NE)- +data for a report, the identifier was either already the subject of a FISA Court order ox had been reviewed by the NSA's Office of General Counsel to ensure the RAS determination was not based solely on a U.S. person's First Amendment-protected activities. + +TS +LLSLANE} +chaining-analyses in the telephony meta data using 14 non- RAS approved identifiers. + +According to the government's riotice to the Court, the analysts conducted queries of non-FISA authorized telephony meta data and were unaware their queries also ran against the FISA-authorized meta data. The government stated that none of the queries used an identifier associated with a U.S. person or telephone identifier and none of the queries. + +resulted in intelligence reporting. {FS{/SH-NF +The Court next addressed the misrepresentations the governiment made to the Court from August 2006 to December 2008 in reports that ihaccurately described the alert list process. The Court recounted the specific misrepresentations and summarized the government's explanation for their oceurrence: The Court then concluded, Regarc_lich of what factors contributed to making these misrepresentations, the Court finds that the government's failure toensure-that responsible officials adequately understood the NSA's alert list process, and to accurately report its implementation to the Court, has prevented, for more than two years, both the government and the FISC from taking steps to remedy daily violations of the minimization procedures set forth in FISC orders and designed to protect_can detail records pertaining to telephone communications-of U.S. + +persons located within 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 The Court also addressed the additional non-compliance incidents that were: identified during the initial review ordered by the NSA Director, observing that the incidents occurred despite the NSA implementing measures specifically intended to prevent their occurrence. + +In view of the record of compliance incidents the government had reported to date, the Court stated, +: +[I]t has finally come to light that the FISC's authorizations of this vast collection program have been premised on a flawed depiction of how the NSA uses BR metadata. This misperception by the FISC existed from the inception of its atithorized collection in May 2006, buttressed by repeated inaccurate statements made in the government's submissions, and despite a government-devised and Court-mandated oversight regime. The minimization procedures proposed by the government in each successive application and approved and adopted as binding by the orders of the FISC 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 to ensure 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 215 Orders. The Court explained that in light of the government s repeated representations that the collection of the telephony meta data is vital to national security, taken together with the Court's prior determiination that the collection pr operly administered conforms with the FISA statute, "it would not be prudent" to order the government to cease the bulk collection. {(FS/SH-NF} +However, believing that "more is needed to protect the privacy of U.S. + +person information acqulred and retained" pursuant to the Section 215 +Orders, the Court prohibited the government from accessing the meta data collected "until such time as the government is able to restore the Court's confidence that the govemrnent can and will comply with previously approved procedures for accessing such data. "275 The government may, on a case-by-case basis, request authority from the Court to query the meta data to obtain foreign intelligence.276 Such a request must specify the telephone identifier to be used and the factual basis for the NSA's RAS +determiriation. {FS/SHAHE- +The Court ordered that upon cornpletlon of the NSA's end to- end descrlbes the results of revrews dlscusses thc Steps taken to rcmedy non-complianice incidents, and proposes minimization and oversight procedures to employ should the Court.authorize resumption of regular access to the telephony meta data. The government's report also must inchide an affidavit from the FBI Director and any other government natiorial security official deemed appropriate describing the value of the telephony meta data to U.S. national security. FS5//SH/NF +Additionally, the Court ordered the government to implement oversight mechanisms proposed in the government's response to the compliance incidents. These mechanisims generally require the Justice Department's National Security Division to assume a more prominent role in the NSA's administration of the bulk collection program. For example, the NSA's Office of General Counsel must now consult with the National privacy interests of U.S. persons|.]"{F8//8t//HF} +276 The Court authorized the government to query the meta data without Court approval to protect against an imminent threat to-human life, with netice to the Court within the next business day of the query being conducted, The-Court also authorized 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 comply with previously approved procedures for accessing the meta data. FSH-SH-HH- +Securlty Division on all 31gn1flcant legal opinions. that relate to the initerpretation, scope, or implemeentation of past, cur rent, and future Section +215 01 ders related to the telephony bulk meta data collection. + +On May 29, 2009, the Court authorized the government to continue collecting telephony meta data under the Section 215 Orders for 43 days +'subject t0 the same limitations:set out in its orders of March 2 and 5, 2009. + +## Iii. Content Collection Under Fisa {Ts//Shnf})- + +The third and last part of the Stellar Wind program brought under FISA authorlty was conitent collection (basket 1). The effort to accomplish this transition was legally and operationally complex, and our discussion in this section does not address each statutory element or the full chronology of the governrnent s applications and related FISA Court: orders. Rather, we describe the c1rcumstanccs SUrroundlng the government's decxslon to +"Court's: response to the govemment's content: colIectlon proposals and the orders it issued. + +In this section, we d describe one FISA Court judge's rejection of the government's legal approach to conterit collection; a decision that hastened the enactment of legislation that significantly amended the FISA statute and provided the government: survel]lance authorltles broader than those authorized under Stellar Wind. + +- + +## A. Decision To Seek Content Order {Fs//Sla/Nf}- + +The Department first began work on bringing Stellar Wind's content collection activity (basket 1) under FISA in March 2005, shortly after Alberto Gonzales became Attorney General, Gonzales told 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 FISA authority would also eliminate the constitutional debate about the activity and would reassure people that the President was actlng accordmg 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 the President when possible. + +Gonzales added that in 2001 nobody thought it was poss1ble to bring Stellar Wind under FISA authority., +' +When Gonzales became Attorney General in early 2005, however, he also kriew there had been a leak to The New York Times about the NSA's content collection activity under Stellar Wind and that the paper was actively investigating the story. In November 2004, Gonzales (then the White House Counsel), together with Deputy Attorney General Comey and his Chief of Staff, had met with New York Times reporters to discuss the potential article. 277 ~(S +1 +STEWS1-SHOE/NF- +In response to Gonzales's request, Bradbury, working with attorneys in OLC and the Office of Intelligence and Policy Review {(OIPR) as well as with NSA personnel, devised a legal theory, summarized below, for bringing under FISA the Stellar Wind program's content collection activities while preserving the "speed and agility" many Intelligence Commumty officials cited as the chief advantage of the NSA program. + +In June 2005, Bradbury, together with Associate Deputy Attorney General Patrick Philbin, presented the legal theory to White House officials David Addington, Harriet Miers, and Daniel Levin and received their approval to continue work on a draft FISA +application.278 (FS/HSTEW/H-SHAOCNF +Bradbury told the OIG that he also spoke to the Director of National Intelligence and to NSA officials about bringing Stellar Wind's: content collection under FISA. According to Bradbury, the Director of National Iritelligence responded 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 PR/TT Order. The NSA +also believed that the FISA Court would be reluctant to grant the NSA the opera'tional flexibility it would insist on in any content application, resulting if1 less surveillance coverage of telephone numbers and e-mail addresses used by persons outside the United States. {FS/H-STEWHSHAOC/NF +As discussed in detail in Chapter Eight of this report, in December +2005 The New York Times published its series of articles on the content collection portion of the Stellar Wind program, resulting in considerable controversy and public criticism of the NSA program. Through the spring of +2006, the Department continued work on the content application. + +In May +2006, at the first of the FISA Court's semiannual meetings that year, the Department provided the Court a draft of the application for content collection to obtain feedback on the government's unconventional approach to the FISA statute. + +None of FISA Court judges indicated whether the application would be granted if filed, but some 1dent1f1ed concerns with certairi.aspects of the proposal. + +(F87 +' +At this time, Congress and the Administration were also discussing how to modernize the FISA statute to authorize the. type of electronic survefllance that the content application sought. Work on the. application was temporarily suspended as the Department focused its attention on working with Congress to craft this legislation. However, this suspension of worlk on the content application was brief. Bradbury said he concluded by the fall of 2006, as Congress was headmg for recess; that there would be no legislative reform of the FISA statute in the foreseeable future that would +'address content collection as it was being conducted under Stellar Wind. 'As a result, the Department pressed forward with the draft content application to the FISA Court. (FSHSTEWSHAOCNF + +## B. Summary Of Department's. December 13, 2006, Content Applncatlon +Eshshhnf + +In November 2006, at the second of the Court's semiannual meetings, the Department presernted an updated draft of the apphcatlon that +1ncorporated feedback received from members of the Court during the previous semiannual meeting. On December 13, 2006, the Department formally filed the content application with the Court. (IS +'The government's December 13 application sought authority to, mterce ot the content of tele homc and electromc commun' +tions. of bl, b3, b7E + +## "Applcation Stated: | + +fl Commumty to be able quickly and efficiently to acqulre communications to or from individuals reasonably believed to be members or agents of 'the.,sfie-'fel"eigll POWETS.. + +Accordmg to the apphcatlon, the: goal 'was: to estabhsh an e_arly +'1nd1v1duals w1t +) + "early warning system" SOught to replace the conventlonal practlce under FISA of filing individual applications each time the government had- probable cause to believe thata partlcular phone number or e-mail address, referred to by the NSA as a "selector," was +'bemg used or about to be used by members or agents of a foreign power. + +In the place of this individualized process, the application proposed that the FISA Court establish broad parameters for the iriterception of communications ~ spemfically,fithat-can be targeted and the locations where the surveillance can be conducted and that NSA officials, rather than FISA Court Judges 'determine within these parameters the par i ular selectors Whose commumca S the NSA would mterce pt_f +| albeit w th FISA Court v and supervis The legal arguments underlying the governmerit's approach are complex and involve substantial communications termlnology They also require lengthy disciission of the FISA statute and prev1ous FISA Coutt decisions. Rather than describe at length these issues, in this section we detail the two main components of the government's approach to content collection in the FISA application that are critical for understanding one judge's-approval of the application and another judge's later rejection of essentially the same application. (ES/1SH-NE)- +First, the government proposed an interpretation of the term "facility" +in the FISA statute that was broader than how the term was ordinarily, but NEY +riot always, applied.?81 +Section 1805(a)(3)(B) of FISA provides that the Court may order electronic surveillance only upon finding that there is probable cause to believe that "each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by" a group involved in international terrorism. The term "facilities" generally was interpreted to refer to individual telephone numbers or e-mail addresses at which surveillance is "directed."{FS+SH1F- +~ +Thegovernment pr oposed in its content application that the term +"facilities" be interpreted broadly to includd +' +82 Under this approach, instead of XAl ng the target's use of particular telephone numbers or e-mail addresses; the Court would determine only .ther was probable commuricate telephonically or by e-mail ;283 +Second, the government's application requested that senior NSA +officials be authorized to make individualized findings of probable cause about whether a particular telephone number or e-mail address was being used by a member or agent of one of the application's targets. Ordinarily, a FISA Court judge makes this probable cause determination. {FS/+SHN +- +To implement this transfer of authority, the government proposed that NSA officials make the probable cause determinations as part of requirements called "minimization procedures," which are detailed rules +281 The governmerit's-Memorandum of Law filed in support of the content application described several instances where the FISA Court authorized surveillance of faci O +LE +AT +The government's proposed interpretation of the term in the content application was far broader than previously authorized by the Court. {ESFSHNF) +bl, b3, b7E +Application ineluded a"decifatibn' from the NSA Director that addressed] +. + +| +b3, bi&'g of the international telephone system and +" +b7E +communications. (ES7FSH7HF +that govern how the government must handle commuitications-that it intercepts pertaining to U.S. persons. The FISA statute provides that each FISA application must include, and the FISA Court must approve, minimization procedures that the agency will follow with respect to communications intercepted pursuant to a FISA Court order. + +' +Minimization procedures, in the FISA context, ordinarily govern the handling of intercepted communications involving U.S. persons after the acquisition has been approved by the FISA Court. + +In other words, a FISA +Court authorizes the agency to intercept the communications of particular selectors, and the agency follows the minimization procedures. + +with respect to how it retains, uses, and disseminates any U.S. person information it collects under the Court's order. {FSA-SH/NF +However, the government proposed as part of the content application that the minimization procedures also encompass how the NSA acquires the communications.?84 Specifically, the application proposed that the NSA +conld intercept the communications of specific selectors if agency officials determined there was probable cause to believe that (1) the selector SRAY: +used by a member or agerit.of a +- +- +- +B +od (2) the communication is to-or from a foreign country. The application referred to this as the "minimization probable cause standard."285 +(TS +ST/ /NE)} +Thus, the content application had a two-prong "minimization probable. + +cause standard"; (1) probable cause to believe a selector is being used by a member or agent of a targeted group, and (2) probable cause, to believe the n-country, +' +28 Bradbury told the OIG that this argument was based on the text of the FISA +statute, which states that minimization procedures apply to the "acquisition" +of communications in addition to their retention and dissemination. + +See 50 U.S.C. + + 1801(h)(1). + +Indeed, the government's Memorandum of Law filed in support of the content application described several cases in which the FISA Court authorized the governinent to conduct electronic surveillance that included minimization at the time of acquisition. + +_According to the application, the cases involved survei broadly targ'eted! + +b1, b3, b7E +For the first prong - probable cause to believe a selector is being used by a member or agent of a targeted group ~ NSA analysts would assess +'sources of "reliable intelligence," defined in the application as information from a variety of domestic and foreign intelligence and law enforcement activities. Under the terms of the application, positive findings of probable cause would be recorded in a database and the assessment process would be subject to periodic internal review by NSA officials, including the NSA +General Counsel and Inspector General. {FS/#8H-/2F) +i, +1T +5 +ki accordarice with NSA's standard tinimization procedures that apply to all of the agency's electronic surveillance activities, {TS//S0//NF) +' +287 As it did with telephorie communications, the application acknowledged that the manmer in which e-mail communications are routed would cause the NSA to collect some e-mail comrmunications that in fact are between communicants wholly within the United +{Cont'd.) +Thus, viewing the government's approach to both "facilities" and +"rmmmlzatmn procedures" together the Decembel 13 2006 content +'dd'i'essc are to or from a foreign country If they were, the NSA could direct. the teleeommumca'uons carrlers to 1ntercept the commumcatlons of +_ +Under the terms of the application, communications acquired by the NSA could be retained for 5 years, unless the Court approved retention for a An additional aspect of the content application is important to understand. The "early warning system" the government propesed applied both to "domestic 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 e-mail 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. {FS//STEW//SHAOCNFY +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. (TS/fSH-NF) +~ +The government proposed in its content application that the domestic selectors would be subject to more rigorous targeting approval and more frequent reporting to the FISA Court than foreign selectors, but the application sought to preserve NSA officials' authority to make the probable cause determinations as to each.?8% As we describe below, the first FISA. + +Court judge to consider the content application, Judge Malcolm Howard, was unwilling to extend this authority to domestic selectors. 1TSS/ + +## C. Judge Howard Grants Application In Part{Ts//Sl//Nf} + +The Department's December 13, 2006, content application was assigned to Judge Howard, because he was the "duty" judge that week responsible for considering new applications,28% Judge Howard advised the Department orally that he would not authorize, on the terms proposed in the application, the electronic surveillance of selectors to be used by persons ini the United States (domestic selectors). He did not issue a written opinion or order concerning this decision. The Department, in response to +'Judge Howard's oral advisement, filed a separate application requesting authority to conduct electronic surveillance on domestic selectors. This application, summarized below, was filed on January 9, 2007, and is considered the first "domestic selectors application"; the December 13 +application is considered the first "foreign selectors application." +and whether t +... + +"facilitie +1der FISA, he surveillance authority sought in the government's coritent application would in fact be "directed" not at these "facilities" but rather at the particular telephone numbers and e-mail addresses the government would task for collection. {FS/ASHNE- +In response, the Department filed a supplemental memorandum of law on January 2, 2007, arguing that the government's construction of the Court could direct that the surveillance of any selector cease. + +N +289 The Department offered to submit the application to the FISA Presiding Judge, Judge Kollar-Kotelly, but she said that it should be filed in the normal fashion, which meant it would be assigned to the FISA duty judge that week. RSO} +furthe1 explamed Why the tradltlonal approach to survelllance under FISA +Would not provide the speed and agility necessary for the "early warning system" the application sought to create.290 {TS//SLAANE) +On January 10, 2007, Judge Howard approved the Department's content appllcatlon as to foreign selectors, endorsing the legal framework on which the coritent application for foreign selectors was based, including the broad construction of the term "facility" and the use of minimization procedures to empower NSA officials to make targeting decisions.about particular selectors. Judge Howard's Order authorized the government to conduct electronic surveillance for a period of 90 days at the "fac:1ht1es +1dent1fied in the a.illcatmn and xpire.on April 6, +2007, The Judge Howard's Order also required that an attorney from the Justice Department's National Security Division review the NSA's justifications for targeting particular foreign selectors. The Order required the government to submiit reports to the FISA Court every 30 days hstmg new selectors tasked during the previous 30 days and briefly summarizing the basis for the NSA's determination that the first prong of the minimization probable cause +'standa.r_dhas been met for each new selector.?292 The Order preserved thie Court's authority to direct that surveillance cease on any selectors for which one motion or seeking one Attorney General +290 On this point, the memorandum cited the government's limited resources as preseriting a significant obstacle to filing'a separate FISA application for each selector it wanted to place under surveillance. The government stated that it anticipated m1t1at1ng collection or +'new selectors each month, a figure that translates to filj motion to amend a FISA order or seeking Attorney General emergency authority times per day (or, alternatively, filing emergency authorization coveringj a1 +new selectors each day). + +The government stated that if the government proceeded under any of these options, valuable intelligence would be lost. F&/HSHNF- +291 +As noted earlier, the Order compelled +' +, The Order also required that with each request for reauthorization, the g' vernment p scnt a list of current selectors previously reported to the Court that the government intended te continue bl,b3,b7E +tasking, identify any selectors reasonably beheved to be used by U.S, persons outside the United States, and assgss the eff ection of comimunications that mentioned a tasked e-mail address - +. but that were not to or from that selector. + +H* +the Court found that the first prong of the standard has not been satisfied. + +In addition, the Order required the NSA Inspector General, General Counsel, and Signals Intelligence Directorate to periodically review the authorized collection activities. These NSA offices were required to submit a report to the Court +60 days after the collection was initiated under the Order that would address the adequacy of management controls and whether U.,S. + +person information was being handled properly. {ES/ASEHANE)- +According to several Department and NSA officials, the effort to. + +As a result of the Order, the Department and NSA submitted to the FISA Court for its review the factual basis for each selector supporting the governirent's determination that the "minimization probable cause standard" had been satisfied, The Department accomplished this pursuant t0.a_sC +1le approved by Judge Howard under which the Department filed oreign selectors everydays for the duration of the +90-day Order. ATS//SH-/NF) +The probable cause explanation for each foreign selector filed with the Court typically was described in several senternces. According to Bradbury, he impressed upon the NSA that Judge Howard would review each submission and inquire about how recently the NSA had acquired comrnunications relating to a particular selector. According to Matthew Olsen, the Deputy Assistant Attorney General in the Department's National Security Division who was responsible for overseeing intelligence matters, Judge Howard did in some cases inquire about the government's factual basis for believing the minimization probable cause standard has been met.2%% Bradbury also said he stressed that the Court would scrutinize the NSA's probable cause determinations more rigorously than the agency had been doing itself and that the Court was more likely to approve a selector where the surveillance was current than it would a selector that has +"remained dormant for months."294 (FS/F+SHNF +Olsen told us thatf +, oreign selectors ultimately were filed with the FISA Court under the terms of J udge Howard's Order. + +Olsen. said that the NSA strived to submit selectors that were deemed high priority; that had a well-documented nexus to R +foreign powers, and that had recent communications activity. Attornieys from OIPR, who under the terms of the Order were required to review the NSA's justification for each foreign selector that it tasked, worked with the NSA omn this large-scale review process. According to Olsen, OIPR attorneys +"double-checked" the NSA's probable cause determination for each selector, but did not conduct independent probable cause inquiries. This review identificd BB +c]octors that in OIPR's judgment required. + +additional documentation before they could be submitted to the Court.?95 +Olsen described the back-and-forth between OIPR and the NSA as +"constant," and said the NSA was receptive to OIPR's involvement, Olsen stated that the NSA committed significant resources to the transition of foreign selectors. {FS/SH/NFf Both Bradbury and Olsen observed that the transition of content collection of foreign selectors to FISA required:somie adjustment by the NSA +in its approach to establishing probable cause. + +For example, while an NSA +analyst might base a probable cause determination to seme extent on intuition, similar to a "cop on the beat," it wasa differerit proposition when that probable cause determination had to be reviewed by several OIPR +attorneys trying to anticipate how the FISA Court might view the judgment, Olsen stated that it was also "new" for the NSA to document the probable cause to the level OIPR believed the FISA Court would require. According to +. Bradbury, the effort sought an equilibrium between "the necessary speed and agility" and the "multiple layers of probable cause determination." +Bradbury and Olsen both told the OIG that the NSA had concerns about whether the FISA approach to content collection would work and the extent to which a measure of effectiveness would be lost under FISA Court supervision. (F8/75HNF + +## D. Domestic Selectors Application And Order{Fs//8H//Nf) + +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 e-mail addresses reasonably believed to be used by individuals in the United States - should be filed with +. + +295 Olsen told the OIG that he believes the NSA de-tasked some of these foreign selectors, {ES/SHAN +the Court in a separate application. Judge Howard also advised OIPR +officials that ary such application should take a more traditional approach to FISA, meaning the "facilities" targeted by the application should be particular telephone numbers and e-mail addresses and that the probable cause determination for tasking a selector would reside with the FISA Court, not with NSA officials pursuant to minimization procedures. {FS$/4SH-/NE}- +On January 9, 2007, the Department filed the first domestic selectors application. The application sought two things, First, the application requested authority to intercept the international communications of e specific domestic selectors.296 Second, the application b1 b3 +'sought, for purposes of future applications, approval to use a "streamlined b7,E +' +version" of the emergency authorization procedures available under FISA. + +These emergenicy procedures authorize the use of electronic surveillance for +-aperiod of up to 72 hours without a Court order when the Attorney General reasonably determined that an emergency situation exists. + +See 50 U.S.C. + + 1805(f). The procedures required the Attorney General to inform the FISA +Court that the surveillance has been initiated and required the Department to file with the Court an emergency application to continue the surveillance not more that 72 hours after the surveillance was authorized. {F8//8H-NE} +The goal of the Department's proposed streamlined emergency application procedures, referred to in the January 9, 2007, application as a +"Verified Application," was to ensure that the emergency surveillance process be completed as swiftly as possible for qualifying domestic selectors. + +The proposal allowed the Verified Application to incorporate by reference the reasons or facts contained in the original domestic selectors application necessary to satisfy some of the statutory requirements under FISA, instead of reestablishing in each application for a new domestic selector that each of the requirements of FISA were met. The only new substantive information 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 use and the factual basis sup ing probable cause to believe the target ish; +- +- +. + +=== |andisusingorisabout to use the identified telephone number. {FS//SH-NF} +Judge Howard granted the domestic selectors application on January 10, 2007, for a period of 90 days. + +His Order also approved the +296 Unlike the December 13, 2006 _appli did not seek authority to targetagentsofff 2 =2 2 +| +mor did the application seek authority to conduct content surveillance of bl, +"e-mail communications. The declaration summarized for each of the domestic selectors b3, generally in two to three paragraphs, the facts that supported the government's belief that b7E +t to be used by a known or unknown agent oif +| located in the United States. + +(TS//SI//NF) +streamlined emergency authorization procedures proposed in the + +application for any additional domestic selectors whose communications the government sought to intercept during the 90-day period for which surveillance was authorized.?97 {FSHSH-AE}- +NSD Deputy Assistant Attorney General Olsen told the OIG that in comparison with foreign selectors, the Department conducted a more rigorous review of the initial domestic selectors submitted to the FISA Court to ensure that probable cause was met. + +Olsen said a few domestic selector packages +"on +[their] face" lacked sufficienit documentation and that these deficiencies were apparent to OIPR attorneys reviewing the information because the attorneys were looking at the information for the first time. + +He said that the NSA analysts responsible for the selectors, in contrast, were very familiar with the numbers and knowledgeable of details about the users that might not have been evident to persons reviewing documentation +'de novo. According to Olsen, for selector packages that were considered deficient, the NSA either provided the Justice Department attorneys with additional information or de-tasked the selector.?98 +{TS//SH-/NF} + +## E. Last Stellar Wind Presidential Authorization Expires + +On December 8, 2006, the President signed what would become the final Presidential Authorization for the Stellar Wind program. The December 8 Authorization was scheduled to expire on February 1, 2007. + +However, Judge Howard's January 10, 2007, Orders relating to foreign and domestic selectors completed the transition of Stellar Wind's +297 On January 22, 2007, the Department filed, and Judge Howard approved, the first Verified Application with the FISA Court using the streamlined procedures approved in the Order. 1ESHSH-NR) +298 Qlsen and OIPR Deputy Counsel Margaret Skelly-Nolen told the OIG that during the application for and implementation of the domestic selectors Order, it became apparent that there were coordination problems between the FBI and the NSA. They noted that in many instances a domestic selector the NSA sought to task was already targeted by an FBI +FISA order. + +According to Skelly-Nolen, in those cases problems can arise in providing accurate, current, and consistent information to the FISA Court about such selectors. + +She said the NSA's practice has been to consult with the FBI analysts assigned to the NSA and to request from them the most current information the FBI has about a particular telephone number or user of that number. The FBI analysts 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. Asa consequence, according to Skelly-Nolen, the FISA Court has on some limited occasions. + +been provided inconsistent information concerning domestic telephone numbers or the users of those numbers. + +Olsen told the OIG that the domestic selectors Order has required a higher level of coordination between the FBI and NSA and that the National Security Division has worked to address this issue. {FS7/SH7NE +communications and meta data collection activities from Presidential Authorization to FISA authority. Bradbury told the OIG that because it was believed that Judge Howard's Orders, particularly the foreign selectors +"Order, provided the NSA. sufficient flexibility to conduct content collection; it was not necessary to renew the December 8, 2006, Presidential Authorization. {FSf T +Therefore, on February 1, 2007, the Presidential Authorization for the Stellar Wind program officially expired.?9? + +## F. First Domestic And Foreign Selectors Fisa Renewal Applications T Shshhnf- + +Judge Howard's January 10, 2007, Orders were set to expire after 90 +days. During the week of March 20, 2007, the government filed renewal applications to extend the authorities both as to domestic and foreign selectors. These applications were filed with Judge Roger Vinson, the FISA +Court duty judge that week. {FSHFSHFRFI +The domestic selectors application, filed March 22, 2007, was in all material respects identical to the go'vemment's original applicatiQn- Judge Vinson granted the application on April 5, 2007,300 +4TS/ LS +NE) +The foreign selectors application was filed on March 20, 2007. The conterit and construction of the March 20 application was substantially identical to the government's original application, and advanced the same broad construction of the term "facilitiesTM and the use of minimization procedures to authorize NSA officials, instead of judges, to make probable cause-determinations (subsequently reviewed by the FISA Court) about particular selectors. + +{355 +On March 29, 2007, Judge Vinson orally advised the Department that he could not grant the foreign selectors application. + +His decision validated some concerns within the Justice Department that Judge Howard's original +300 As noted previously, the domestic selectors QOrder presented special coordination issues between the FBI and the NSA, and EEEE s e foooeaos e e e + The Order was renewed for the final time infEEE ] +| 2nd has since expired. (FS//SHNG- +Order might not be a sustainable long-term strategy for intercepting the commiunications of foreign selectors: J udge Vinson's decision also accelerated the Department's efforts to obtain legislation-amending the FISA +statute to authorize the type of surveillance conducted under Stellar Wind and that was approved by Judge Howard. + +TS/ +/SLLINE +On April 3, 2007, Judge Vinson issued an Order:and Memorandum Opinion explaining the reasoning for his conclusion that he could not grant the foreign selectors application. However, Judge Vinson did not deny the government's application. Instead, he enicouraged the Departrment to file a motion with Judge Howard requesting a 60-day extension of the existing January 10, 2007, foreign selectors:Order. + +In explaining why he was: +encouraging the Department of file the motion with Judge Howard, Judge Vinson wrote, +| +| +I have concluded that an extension for this purpose. + +is appropriate, in view of the following circumstances: that the government has commendably devoted substantial resources to bring the NSA's surveillance program, which had been conducted under the President's assertion of non-FISA +authorities, within the purview of FISA; that a judge of this Coutt previously authorized this surveillance in [the January 10, 2007, foreign selectors Ordet], on substantially the same terms as the government now proposes; that it-would be tter for the government to terminate surveillance off l phone numbers and e-mail addresses under b1, b3, b7E +FISA +authotity, and to decide whether and how it. should continue somie or all of the surveillance under non-FISA +authority; and, importantly, that within the-allotted time the government may be able to submit an application that would permit me to authorize at least part of the surveillance in a mantier consistent with this order and opinion. {FS/SHHNE +Judge Vinson wrote that the Department's foreign selectors renewal application concerns an "extremely important issue" regarding who may make probable cause findings 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 NSA may make such determinations under an alternative mechanism cast as "minimization procedures." Judge Vinson concluded, based on past practice under FISA +and the congressional intent underlying the statuts, that probable cause determinations must be made by the FISA Court. {FSfSH-NF +_ +In explaining his reasoning, Judge Vinson first rejected the Departmerit's broad construction of the term "facilities," concluding that'the +"elect'r,qnic,surveill;ance" under the government's application - the acquisition of the content of communications - was directed at particular telephone. numbers.and e-mail addresses _and not at broad, swaths of +. + +. + +- . + +- += - +| asthe government contended. Judge Vinson aisunguisned prior cases that the government cited for its broad interpretation of "facilities," observing; +"[t]ellingly, none of the cited cases stand for the proposition on which this. + +application rests - that lectronic surveillance is not 'directed' at particular il addresses,g +. + +Judge Vinson wrote that his conclusion was also supported by the government's and the Court's past practice, as well as the legislative history of FISA, which, according to Judge Vinson, made clear that "Congress +' +intended the _pre~surveillanc_e judicial warrant procedure," and particularly the judge's probable cause findings, to provide an 'external check' on executive branch decisions to conduct surveillance He wrote that the sovernment's proposal that "the Court assessf +. + +e +| and make a highly +- +abstract and probable-cause findingp +' +.' +" +removed from the Court's pre-surveillance purview the question of whether the commurnications to be acquired will relate to the targeted foreign powers.301 +Judge Vinson rejected the government's "minimization probable cause standard," stating that "[m]inimization does not provide a substitute for, or a mechanism for overriding, the other requirements of FISA." Judge Vinson concluded that government's proposed minimization procedures, by authorizing the NSA to make probable cause decisions, conflicted 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 responsibility to make such findings based on the totality of circumstances.' Obviously, this would be inconsistent with the statutory requirement and the congressional intent that the Court make such findings prior to issuing the order (emphasis in original)." +LSS +FISA Court), and that renewals for surveillance coverage must be based on +"new findings" of probable cause by a judge. Judge Vinson summarized his position: +The clear purpose of these statutory provisions:is to ensure that, as a general rule, surveillances are supported by judicial determinations of probable cause before they commence; that demsmns to initiate surveillance prior to judicial review in emergency circumstances are made at politically accountable levels; that Jud1c1a1 review of such emiergency authorlzat1ons follows swiftly; and that decisions to continue surveillance receive the same degree of scrutiny as:decisions to initiate. The law does not permit me, under the rubric of minimization, to approve or authorize alternatlve procedures to relieve the government of burdensome safeguards expressly imposed by the statute. {FSF/SH/NF +Judge Vinson wrote that he was mindful of the government's argument that the proposed minimization procedures were necessary to provide or enhance the "speed and flexibility" with which the NSA responds to threats, and that foreign intelligence information may be lost in the time it takes to obtain Attorney General emergency authorizations. + +However, in Judge Vinson's view, FISA's requiremerits reflected a balance struck by Congress between prlvacy interests and the need to obtain foreign intelligence information, and until Congress took legislative action on FISA +to respond to the government's concerns, the Court must apply the statute's procedures.?92 He concluded that the government's application sought to strike a different balance for the surveillance of foreign telephone numbers and e-mail addresses. Vinson rejected this position, stating, "provided that the surveillance is ' within FISA at all, the statute applies the same requirements to surveillance of fac111t1es used overseas as it does to surveillance of facilities used in the United States,"303 {F8/781//NFJ +and opinion." He continued, "I believe that there are jurisdictional issues regarding the application of FISA to comthunications that-are between or among parties who are all located outside the United States." Judge Vinson suggested that "Congress should also consider clarifying or modifying the scope of FISA and of this Court's jurisdiction with regard to such facilities +. + +. + +. ." Bradbury told the OIG that Judge Vinsorn's suggestion was an important spur to Congress's willingness to consider FISA modernization legislation in +(Comt'd.) + +~ +Attorney General Gonzales told 11& that his reaction to-Judge Vinson''s. +decision was one of "disappointment" and that the decision "confirmed our +concern about going to the [FISA Court]." Gonzales also said he believed the +decision was "troubling for purposes.of +the national security of our country." +Bradbury told us the government considered. several options after Judge Vinson's ruling, including appealing the decision to: the: FISA Court of Review, However, he said the decision was made to attempt to work with Judge Vinsomn to craft a revised application and also separately to renew the Administration's efforts to obtain legislation to modernize FISA.. + +## G. Revised Renewal Application For Foreign Selectors And Order - { Qt + +As suggested by Judge Vinson, in April 2007 the Justice Departmentobtained from Judge Howard an extension of the existing foreign selectors Order until May 31, 2007, to prepare a revised foreign selectors application. + +In the interim, the Department filed two reports with -Judge Vinson describing a new approach to foreign selectors that addressed the concerns expressed in his Opinion, an +| that sought input from the Court about how best to facilitate the submissiop.afan application that would seek authority to direct surveillance atfd +| +selectors. {FSHSH NE +On May 24, 2007, the Department filed a revised renewal application seeking to.renew, with modifications; the authorities granted in J udge Howard's Jariuary 10, 2007, Order. However, the -application did not include the broad construction of "facilities" and instead sought authority to conduct electronic sugyeillance of conventional facilities - telephone numbers and "e-mailll +_ +- +' +304 The application also did not include the "probable cause minimization standard" approved the summer of 2007. + +In Section IV below, we summarize this legislation, the Protect America Act, and its successor, the FISA Amendments Act of 2008. (F&H/SHNE)} +04 According to the May 24, 2007, application, such uses inclyde Internet +4 +ynications thatare sentto d.oretdevmail "address, [t += +to-use the term "e-mail B eoTibe +[he Tacinty at wicn e-mail surveillance would be directed; +: +. e += +e However; according to the: application, the government "routinely requests, and the court authorizes, electronic surveillance using [the e-mai +| +to identify this type of facility." +SHHE +by Judge Howard that had the effect of shifting from the FISA Court to the NSA the probable cause determinations about particular selectors. + +However, the targets of the government's revised applicatiorn remained selectors (telephone number and e-mail facilities) reasonably believed to be used outside the Umted States and for Wthh there is robable cause to +. beheve were. bem L +e +11 +. + +Shecifically, the application requested authority to- direct surveillance categories of foreign selectors: + +o +Foreign telephone number and e-mail selectors presently known +to the government, This category accounted for a portion of the +foreign selectors alreadsy under surveillance +a0s. The May 24, 2007, apphcatmn explicitly stated that the government was not seeking survefllance authonty for any new facilities reasonably beheved by the NSA to be used by U.S. persons. 'The: apphcatmn stated that sutveillance-of those facilities would be initiated only through FISA's emergengy authorlzahon prOV]SlonS and the sti eamlmcd FISA +apphcahons approved :for domestxc selectors, TS +_ +'Nmern ted an appendix with the revised renewal application that identifiect +| +facilities and contained the factual basis for the NSA's belief that each of the facilities was being used by a person outside the United States and for which there was probable cause to believe were being used or about to-be used by a member or agent of one of the targeted foreign powers. The government had provided Judge Vinson these facilities on a rolling basis during May 2007 for his consideration. The NSA discontinued the surveillance of facilities that were targeted under Judge Howard's b7'E +Order, but that were not included amerng the facilities submitted te Judge Vinson for +& +roval The NSA told the OIG that the decision to discontinue surveillarice on these +"facflmes largely was a resource decision: and that was the amount the NSA could timely process for filing with the Court. + +@S,'/SIHNF) +Foreign e-mail 'selectors (not telephone number selectors) +presently unknown to the government but that "refer to" or are +"about" known foreign e-mail selectors. This category of surveillance, which the NSA had been conducting under Judge Howard's Order, includes situations where an already targeted e-mail facility is mentioned in the body of a message between: +two third-party, non-targeted facilities.308 {FS/7SH/NF) +According to the application, th surveillance would enable the NSA to +1 +o +.+ +discovered facilities "with the speed and agility necessary to obtain vital intelligence and to detect and prevent terrorist attacks." The application The collection authorities requested in the renewal application that pettained to currently unknown facilities would, according to the application, address this limitation.30? {FS/SH/NE}- +' +Judge Vinson granted the government's revised renewal application on May 31, 2007, His Order authorized, for a period of 90 days, each of the categories of electronic surveillance described above, although the +308 The category presented an issue under FISA in that communications are being acquired because they contain the targeted e-mail selector, and not because there was probable cause to believe the e-mail accounts sending or receiving the communications are used or about to be used by an international terrorist group. + +In such cases, the surveillance is not "directed at" the targeted e-mail selector. The government argued that such acquisition was still consistent with FISA 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." +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 requirements on the government where the FISA Court approves an electronic surveillance in circumstarices where the nature and location of each of the facilities at which surveillance will be directed is unknown at the time of the application. FSASH-NFY +Order defined the precise circumstances under which the NSA could acquire gommUnlic_atio~ns falling within th'e-category of surveillance.310 The Order also included reporting schedules with respect to thef - +Wcategcries of surveillance, for which the government was required to +'submit newly discovered selectors to the Court. + +SH-5E +Judge Vinson initially approved foreign selectors under the terms of his May 31, 2007, Order (these selectors were submitted with the government's-May 24, 2007, application). Shortly after the Order was issued, the FISA Court decided that the weekly reports filed by the government notifying the Court of newly discovered selectors, as well as the government's motions seeking approval to conduct surveillance on additional selectors, could be filed for review with any member of the Court. + +As the government received feedback from judges on the first reports and motions that were filed, it observed that judges were applying a more rigorous standard of review to the factual basis supg +: +urveillance for each selector than Judge Vinson applied to th: +selectors he approved. The government consequently adjusted the amotnt of factual information it provid B +in subsequent reports and motions and ultimately added Vinson's-Order. + +{tF +According to Bradbury, the more rigorous: scrutiny applied by FISA +Court judges after Judge Vinson's initial approval +| foreign selectors caused the NSA place only a fraction of the foreign ors under coverage than it wanted to. This concern, combined with the comparatively laborious process for targeting foreign selectors under Judge Vinson's Order, accelerated the government's efforts to obtain legislation that would amend FISA to address the government's sutveillance capabilities within the United States directed at persons located outside the United States. The Protect America Act, signed into law on August 5, 2007, accomplished this objective government's position that there was probable cause to believe that Internet communications relating to a previously targeted e-mail facility were themselves being sent or received by one of the targeted foreign powers and could be acquired. Judge Vinson called this holding "novel," but concluded that the decision was "consistent with the overall statutory requirements; it requires the government to promptly report and provide appropriate justification to the Court; and it supplies the Government with a necessary degree of agility and flexibility in tracking the targeted foreign powers." {F3//5H-/NF- + +- and effectively superseded Judge Vinson's foreign selectors Order. The +government therefore did not-seek to renew the 'Order when it expired +on +- August 24, 2007, {BS/SH7N] +In the next s_ectiop, we Su'mmariz'e the effect of the Pr-o_tect' America Act and successor legislation, the FISA Amendments Act of 2008. + +(U) + +## Iv. The Protect America Act And The Fisa Amendments Act Of 2008 (U) + +~ +In August 2007, the Protect America Act was enacted, amending FISA +to address the government's ability to conduct electronic surveillance in the United States of persons reasonably believed to be located outside the United States. This legislation expired on February 1, 2008, but was extended by Congress to February 16, 2008. + +In July 2008, the FISA +Amendments Act of 2008 was enacted, which, among other things, created acomprehensive process under FISA for content collection directed at foreign targets. These two laws modernized the FISA statute as it applied to the acquisition in the United States of communications of persons reasonably believed to be outside the United States. + +(U) +As discussed in Chapter Three, FISA was enacted in 1978 when most international calls were carried by satellite. The interception of such calls constituted electronic surveillance" for purposes of FISA only if the acquisition intentionally targeted a U.S. person in the United States, or if all participants to the commiunication were located in the United States.. Thus, government surveillance of satellite communications that targeted foreign persons. outside the United States generally was not considered electronic surveillance, and the government was not required to obtain a FISA Court order authorizing the surveillance even if one of the parties to the communication was in the United States. However, in the mid-1980s, fiber optic technology began to replace satellites as the primary means for trahsmitting interriational (and doriestic) telephone communications. + +This change brought within FISA's 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 suiveillance that it previously conducted outside of FISA. {FS/SH-/NFY + +Under the Stellar Wind progre +NSA +collected international +communicationsf += +== +b1, 13, +by targeting facilities (telephone +b7E +numbers and e-mail addresses) located outside the United States (foreign + +selectors):31! As noted in Chapters Three and Four, the Administration +_contended that FISA, as supplemented by a subsequent legislative enactment (the AUMF), did not preclude the surveillance activities under Stellar Wind, or in the alternative represented an unconstitutional infringement on the President's Article I authority as Commander in Chief to the extent it conflicted with these collection activities. + +The Justice Department's effort to transfer content collection from presidential authority under Stellar Wind to FISA raised the issue of FISA's application to the acquisition in the United States of cominunications to or from targeted foreign selectors. The Protect America Act and the FISA +Amendments Act, in slightly different ways, addressed this issue by treating the chmunications of persons reasonably believed to be located outside the United States differently from communications of persons located in the United States.312 FS#STEW//SHHLOC/NID + +## A. The Protect America Act (U) + +The Protect America Act of 2007, Pub. L. No. 110-55, was a temporary measure signed into law on August 5, 0007.313 The Protect America Act's chief objective was to exclude from the requirements of FISA the interception ifi the United States of communications of persons located outside the United States, the category of communications referred to abave as "foreign selectors." +(U) +The Protect America Act amended FISA so that the interception of foreign selector communications fell outside the statute's definition of +slectronic surveillance." Under the original definition of "electronic 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.314 FISA also signed a bill to extend the Protect America Act for 15 days while further discussions on new legislation occurred. + +However, 1no agreement was reached on new legislation and the Act expired on February 16, 2008. + +(U) +314 The original FISA definition of "electronic surveillance" included: +'applie)d to the acquisition of other communications (such as k I3 +Gormmunications acquired by targeting persons outside the United States) if the communication was a "wire communication" and the acquisition occurred inside the United States. + +(U) +The Protect America Act amenided FISA by stating: "Nothing in the definition of electronic surveillance +, +. + +. shall be construed to encompass. + +surveillance directed at a person reasonably believed to be located outside the United States." The effect of this amendment was to exclide from the requirements of FISA any communication acquired by targeting a foreign selector, regardless of where the communication was intercepted or whether the communication traveled by wire. + +As aresult, the Act eliminated the need for Judge Vinson's May 2007 foreign selectors Order, because the collection of communications targeted under that Order no longer constituted "electronic surveillance" under FISA and therefore no longer required FISA Court orders.315 {FS/-+SH-F} +(1) the dcquisition by an electronic, mechanical, or other surveillance device: +of the contents of any wire or radio communication sent.by or intended to be received by a particular, known United States person who'is in the United States, if the tontents are acquired by intentionally. targeting that United States person, under circumstances-in which a persori has areasonable expectation of privacy and & warrant would be required for law enforcement purposes; +(2) the acquisition by an electronic, mechanical, or other surveillatice device of the cantents of any wire communication to or from a person in the United States, without the consent of:any party thereto; if such acquisition eccurs in. the United States, but does:not include the acguisition of those commumnications of computer trespassers that would be-permissible under section 2511(20(i) of Title 18; +(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under citeumstances in which a person has a reasonable expectation of privacy 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 for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes. + +1In the place of individualized FISA Court orders, the Protect America Act also inserted several provisions into the FISA statute to-govern the acquisition of communications from persons "reasonably believed to be outside the United States." These provisions authorized the Attorney General and the Director of National Intelligence to.acquire foreign intelligence information concerning such persons for up to one year, provided these officials certified that there are reasonable procedures in place for the government to determine thata target is reasonably believed to be outside the United States and that the acquisition of the foreign intelligenice therefore is not "electronic surveillance" under the amended definition of the term,316 The targeting procedures accompanying the certification had to be submitted to the FISA Court for approval, based on the clearly erroneous standard, within 120 days of the Protect America Act's enactment. However, the certification was not required to identify specific facilities or places at which the acquisition of foreign intelligence information would be directed.317 +(U} +In addition, the Protect America Act authorized the Attorney Gerieral and the Director of National Intelligence to direct a person +(telecommunications carriers) to provide the government with "all information, facilities, and assistance necessary to-accomplish the acquisition in such a manner as will protect the secrecy of the acquisition. + +. . ." Protect America Act, Sec. 2(). The Protect America Act also authorized the Attorney General and the Director of N ational +'The Protect America Act addressed this issue by excluding all +"surveillance directed at persons reasonably believed to be outside the United States. + +person 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 fo the Act's amendments +(acquisition of foreign intelligence informatien from targets outside the United States) were still subject to FISA as it existed prior to the Protect America Act, The Protect America Act also provided, by means of an "opt-out" clause, that the government did not have to use the new procedures for new applications and could instead file applications under the provisions of FISA as it existed before the Protect America Act. + +See Protect America Act, Sec, 6(b). + +(U) +Intelligence to seck the assistance of the FISA Court to compel compliance with such directives, and implemented procedures for the telecommunications carriers to challenge the legality of any such directives.318 +(U) +' +The Protect America Act authorized the Attorney General and.the +'Director of National Intelligence to issue orders without individualized FISA +Court approval for up to one year targeting persons reasonably believed to be outside the Utiited States. These orders 'r'.eme'i'inqd*i_ri ffect beyond the expiration of the Protect America Act on February 16, 2008. + +1)) +On August 10, 2007, the Attorney General and the Director of National Intelligence filed a certification with the FISA Court, as required under the Protect America Act, relating to surveillance of persons. + +reasonably believed to he outside the Inited States likely to cc +: +information concerning += += +; +Iforeign selectors under Judge Vinson's Order were +"rolled over" +to the new Protect America Act authority. A Deputy Assistant Attorney General in the National Security Division familiar with b1 +the transition of Stellar Wind to FISA Court authority told us that the b3, goverriment also began to "build new selectors" under the Protect America b7:E +Act and worked toward restoring the universe of foreign selectors that were first authorized for tasking under Judge Howard's January 2007 Otder when content collection under Stellar Wind initially had. migrated. to FISA +Court authority. + +{ES//SLLL +Although the Department viewed the Protect America Act as an adequate temporary fix to those provisions of FISA seen as outdated because of changes in telecommunications technology, Department officials continued to press Congress for more permanent modernization legislation. + +(U) +authorizing the Director of National Intelligence and the Attorney General to direct a person to assist the government in implementing the Act. See In Re: Directives [redacted text| +Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, No. 08-01. + +{U) + +## B. The Fisa Amendments Act Of 2008 (U) + +On July 11, 2008, the President signed the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (FISA Amendments Act). + +This legislation, composed of four titles, replaced the Protect America Act with similar but more comprehensive surveillance authority. The provisions +~ +of the FISA Amendments Act expire, with limited exceptions, on December 31, 2012, +(U) +A chief objective of the FISA Amendments Act was to change the rules for intercepting the electronic communications of persons reasonably believed to be outside the United States when the acquisition occurs i1 the United States. + +As discussed above, the Protect America Act accomplished this by amending FISA's definition of "slectronic surveillance" to exclude this activity from FISA requirements. The FISA Amendments Act took a different approach. Instead of excluding the activity from the statute's definition of +"electronic. surveillance," the FISA Amendments Act created a new title in FISA to govern how the government may conduct this electronic surveillance. Under this approach, the FISA Amendments Act, unlike the Protect America Act, distinguishes between the targeting of non-U.S, and U.S. personsreasonably believed to be outside the United States.312 +(U) +For non-U.S. persons, the new title created by the FISA Amendments Act provides for surveillance authority similar to the Protect America Act. + +Instead of requiring the government to obtain individualized orders from the FISA Court to intercept c,ommunications of non-U.S. persons reasonably believed to be outside the United States, the FISA Amendments Act authorized 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 targeting procedures designed to ensure that the new authority is not used States, The FISA Amendments Act of 2008, instead of adopting the Protect America Act's modified.definition of "electronic surveillance," explicitly stated that the targeting of non-U.8S. persons outside the United States shall be conducted under the new FISA +procedures, which does not require an -application for a FISA order. + +In this way, the FISA +Amendments Act accomplished the same goal as the Protect America Act without exempting the targeting of U.S. persons outside the United States from FISA's individualized order requirements. + +{U) +to direct surveillance-at persons within the United States or at U.S. persons ouitside the United States.20 (U) +Tn contrast, to conduct U.S.-based surveillance of U.S; persons reasonably believed to be located outside the United States; the FISA +Amendments Act requires the government to obtain individualized FISA +Court orders for 90-day periods based on a showing of probable cause to +'believe that the U.S. person is outside the United States and is a foreign power or an agent, officer, or employee of a foreign power. Such +'surveillance previously was governed by Executive Order 12333, and required only a certification from the Attorney General, not the FISA Court. + +(V) +Compared to Stellar Wind, the FISA Amendments Act provides the government broader authority to acquire in the United States, with Court supetvision, the communications of non-U.S. persons reasonably believed to be located outside the United States. Under Stellar Wind, the NSA was authorized to collect communications where there was probable cause to believe the communications originated or terminated outside the United States and a party to the communications was al Qaeda or & group affiliated with al Qaeda. Under the FISA Amendments Act, the NSA is authorized to collect in the United States any communications of non-U.S. persons reasonably believed to be located outside the United States;. provided a ienificant purpose of the acquisition pertains to foreign intelligence, certification the government is required to file with the FISA Court must also contain minimization procedures and state that a significant purpose of the acquisition that will be conducted is to obtain foreign intelligence information. + +between U.S. and non:U.S. persons, and the NSA was authorized under Stellar Wind to intercept the communications of U.S, persons' (domestic selectors) provided the comrmunications originated or terminated outside the United States. + +under Stellar Wind, and the government described the issue + +## V. Oig Analysis (U) + +As discussed in this chapter, the government's effort to transition Stellar Wind from presidential authority to FISA, which began in March +2004, eventually resulted in all three baskets of collection being authorized by FISA. While the legal theories supporting this transition were aggressive, we believe that the Department could have and should have pursued transition to FISA as a viable legal alternative earlier than it did, rather than operate aspects of the Stellar Wind program solely under presidential authority for several years. 4FS; +L/ +SHHO +In Chapters Three and Four we discussed John Yoo's 2001 and 2002 +memoranda concerning the legality of Stellar Wind and his contention that FISA represented an unconstitutional infringement on the President's Commander-in-Chief authority under Article II of the Constitution to conduct electronic surveillance during wartime. We recognize that Yoo's analysis was to some extent a response to the extraordinary circumstances that confronted the federal government immediately after the September 11 +terrorist attacks and its effort to take emergency steps to thwart what many officials believed was an imminent second wave of attacks. + +Yet, even if one agrees with Yoo's Article IT analysis and supports the decision to enhance outside the judicial or legislative process the NSA's signals intelligence collection capabilities, we believe there are strong countervailing considerations that favored attermnpting to transition the program to FISA, 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, 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 U.S. persons and the NSA collected large amounts of non-content data about U.S. 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 III 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'U;S',ffpe;sop_ig'fo;matign conducted under Stellar Wind, 322 +'Second, as several Justice Department and NSA officials commented the FISA statute offered a "firmer footing" for the NSA's collection activities under Stellar Wind, As discussed in Chapter Three and Four, the aggressive assertion of Article T authorlty on which Stellar Wmd was based largely reflected the legal reasoning of a single Justice Department attorney working alone, without-adequate review or scrutiny of his analysis, As we also concluded this led to a flawed legal analysis on which the program rested for several years, This approach also led to a contentious dispute between Department and White House officials in 2004 involving renewal of aspects of the program. + +By contrast, the FISA statute provided an alternative basis for Stellar Wind-like collection activities that we believe should have been considered, and pursued, much earlier by the Administration. (iPSfiSiFEJoLHS{/yLQG%} +In this regard, the White House's strlct control over the Justice Departiment's access to the program lessened the opportumty for lawyers with relevant expertise to advise the Administration on the viability of workmg within the FISA statute to achieve the same operational objectives as the Stellar Wind program. Moreover, as the limited number of Department read-ins persisted, meaningful consideration of FISA asan alterna'uve ta pres1dent1al authonty for the program was limited.323 +' +We also found there were operational benefits to transitioning Stellar Wind to FISA. The PR/TT and Section 215 Orders to collect e-mail and +: +& +. + +o +% +e +5 +- +[ +bl, b3, b7E +The transition of Stellar Wind to FISA authority, together with the passage of the Protect America Act, allowed the N SA to begin the process to close, or "de-compartment," the Stellar Wind program. This change, which was not completed until mid-2008, has allowed agents in FBI field offices r access to information about the telephone numbers and e-mail +s being provided as leads. As described in Chap +: +. + +bi, plaint of agents who were assigned and b3, eads was the lack of detail provided about the nature of the. + +b7E +yternational contacts and the foreign entity allegedly involved with terrorism that was one of the communicants. These details often were not provided because of the highly classified and compartmented nature of the Stellar Wind program. Now that such information is gathered under FISA +authority and not compartmented as it was under Stellar Wind, it is classified at a level that allows agents in FBI field offices to gain access to additional-details upon request.32 P8/ +' +Y/ +NF +We recognize that Stellar Wind''s transition to FISA resulted in the imposition of new responsibilities and conditions on the exercise of these: +unprecedented collection authorities. + +In the PR/TT and Section 215 Orders, the FISA Court imposed significant oversight measures that were not required under Stellar Wind. To be sure, the government, particularly the NSA, must devote substantial resources to ensure compliance with these oversight measures. + +Yet, we believe that such requirements are appropriate, given the massive amounts of data collected and the potential impact on the privacy interests of U.S. persons. (LSALSTLW/SHOE/NF) +We also recognize that the transition of content collection from presidential authority to statutory authority under FISA resulted in significant 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's 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. + +forelgn selectors under Stellar Wm e +' +b1, b3, pplication in December 2006, but placed +_fore1gn selectors under b7E +' +: +'fice coverage under Judge Vinson's May 2007 Order. National +" +Id 'us that they sucoessfully:added +: +! + +foreign selectors under the terms of the Court's Order +0; +However, we believe that such broad surveillance and:collection activities conducted in the United" States, particularly for a significant period of time, should be conducted pursuant to statute and judicial oversight, evern though this resulted in a diminution of foreign selectors due to resource issues. We also believe that placing the activities.under Court supervision provides an important measure of. accountab111ty for the government's conduct that is less assured when the activities are both +'authorlzed and superv1sed by the Executive Branch alone.325 +in suin, we concluded there were compelling reasons to pursue beginning the process of transitioning the collection activities of Stellar Wind to FISA authority earlier thanhfZOO&L These inicluded the program's large collection of information about U.S, persons, which warranted judicial oversight; the 1nstab111ty of the legal reasoning on which the program rested for several years; and the substantial restrictions placed on FBEI agents' access to and use of program-derived information due to Stellar Wind's highly classified status. We acknowledge that transitioning Stellar Wind's collection activities to FISA would have been an enormously complex and time-consuming effort that rested upon novel interpretations. + +and uses of FISA that not all FISA Court judges would authorize. + +Nevertheless, the events described in this chapter demonstrate that a full transition to PISA authority was achievable and, and in-our judgment, should have been pursued earlier. {ESH-STEWH/STHHOGHNE +application,f +. + +. + +' +. + +' +. + +_was not without benefit. Judge Vinson's-decision reflected what some mtelhgence off1c1als considered limitations in the FISA statute as it applied to the acquisition of communications in the United States of persons located outside the United States, especially non-U.S. persons. + +In this way, transitioning Stellar Wind''s content. collection to FISA helped the government make its case to Congress in concrete, non-hypothietical terms for modernization legislation amending the statute. (?SHSQ%%%/SH/OG#IE) +The preceding chapters examined the evolution of the Stellar Wind program and its transition from Presidential Authorization to FISA +authority. + +In this-chapter, we examine more closely the FBI's involvement in Stellar Wind and the impact the program had on FBI counterterrorism efforts. + +- +- +7B +is the codename for the project, classified at the Secret level, that the FBI initiated in September 2002 to disseminate Stellar Wind information to FBI field offices in a manner that did not disclose the source bl, b3, of the information or the means by which it was acquired. The FBI +originally opened as an administrative file to serve as the +:epbsifiory for all commiunications FBI Headquarters disseminated to FBI +field offices relating to Stellar Wind information, as well as all cornmunications FBI Headquarters received from: field offices reporting the restilts of any investigation conducted in response to the "tipped" +information originating from Stellar Wind. + +1o Nos +=r 2006, the FBI +opened an investigative file under the nameg +26 +Section I of his chapter summarizes how the FBI used disseminate Stellar Wind information to FBI field offices. Section I +describes the FBI's decision in mid-2003 to make its headquarters-based b1, b3, Comimunications Analysis Unit (CAU), instead of FBI field offices, b7E +responsible for issuing National Security Letters (NSL) to ebtain subscriber information for telephone numbers (basket 2 of Stellar Wind) disseminated un +- +327 Section III discusses the role the FBI played, beginning in approximately 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, e-mail, and content - disseminated to FBI +zs preceded by thelila += and disseminate Ste +'Winc derived information. Wfis&fi@fififi +327 The CAU is the successor to the Teelephone Analysis Unit (TAU), which the FBI +created after the Septemnber 11 terrorist attacks to analyze telephone communications. The CAU assumed TAU's responsibilities in late 2002. {S//NFy field offices through field offices generally investigated +1ppers and thc: typ1ca1 results of the investigations. The section then summan izes two- statistical surveys of meta data tippers the FBI conducted in 2006 to assess the value of Stellar Wind to FBI operations, and. describes observations about the prograrns contribution and value prov1ded by FBI officials and employees in OIG +interviews. and contained in documents the OIG obtained during the course of this review. + +In addition, the section examines five FBI international terrorism investigations commonly cited as examples of Stellar Wind's contl 1but10n to. counterterronsm efforts in the United States.:328 +Lastly, Section V of this chapter contains the OIG's analysis + +pact on FBI operations. (S/ANE +process was: managed by a group of FBL employees. + +from CAU, designated as "Team 10," who in February 2003 were assigned full-time to the NSA to'work on the Stellar Wind program.32? Team 10 was described to us as-a. "conduit" and a "curtain" between Stellar Wind 'and the FBI, in that Team 10's chief respons1b111ty was to disseminate Stellar Wind-derived information to FBI field offices for: mvestlgatmn without disclosing that the NSA was the source of the mformatmn 6r how the NSA +acquired the information. + +{57+ +S +N +Team 10 initially was staffed with two FBI spemal agerits (one of whom served as supervisor) and two analysts: The CAU subsequently replaced one agent position with a third analyst and later: added a fourth analyst. + +At the NSA, Team 10 was co-located in a large open space with dozens of NSA and other Intelligenice Community personnel assigned to the Stellar Wind program. Each team member was provided a computer with direct access to NSA information associated with Stellar Wind. The NSA +told the OIG that Team 10 members worked at the NSA under the authority of the NSA Director and as such were required to adhere to NSA +minimization rules and attend the same training as NSA employees. Team +10 members also were provided access to Stellar Wind-related systems and +328 As noted above, our report examines the FBI's role in the Stellar Wind program. + +and does not review the use of the program by other agencies, such as the CIA. SN} +329 The CAU is organized into ten teams, nine.of which are responsible for providing communications analysis support to specific field offices and FBI Legal Attaches (Legat). + +According to an FBI organizational chart, Team 10 supports "Off-gite. lntelhgence Com mumty Spemal Projects." Team 10 was exclusively responsible for managin +~ databases, and had access from their com Avitomated Case Support (ACS) system and The process under nformation was similar to the process the FBI established under th +: +described in Chapter Three. + +In short, the NSA provided T +Secret, compartmented Stellar Wind reports to Team 10, which in turn converted the information into Secret, non-compartmented electronic communications (EC) and disseminated the communications, referred to as +"tippers," to FBI field offices for appropriate action.330 T +process was applied, with some differences, to each of Stellar Wind's three "baskets" of information. The vast majority of +) +Stellar Wind reports involved the NSA's analysis of telephony meta data - +that is, basic information such as date, time, and duration, about contacts between foreign and domestic telephone numbers for which the NSA +determined there was a reasonable articulable suspicion to believe were related to al Qaeda or an affiliated group.33! + +{F5//8T +| |IECincluded a paragraph that summarized the +| project and explained that the CAU could not disclose the sourCe'O'f'6'i:rif0rmation contained in the BC, but that the information came from-a " 'sensitive and highly reliable" source. Each EC also included +& +t advising the field offices that the information provided by the ource could be used for "lead purposes only" and could not be orpora .d into any affidavit, court proceeding, FISA application or e unclassified investigative file." In addition, each +; +"lead" that instructed the field office what investigative actio +, if an should taken regarding the information provided, We further descrlbe ds and. FBI fleld offices handhng of them in Section IV of this pter bl, b3, b7E +Before Team 10 disseminated Stellar Wind-derived information to field offices, an analyst queried FBI databases for relevant information about the telephone number, e-mail address, or individual (in the case of a content report) identified in the Stellar Wmd report. Theese queries often identified, for example, subscriber information the FBI previously obtained for Stellar Wind telephone numbers as part of a prior FBI investigation, or active counterterrorism investigations in which the subscriber to a Stellar Wind-targeted number was the subject or in which the number; and sometimes the subscriber, were referenced. Team 10 analysts also checked puiblic and commercial databases, most commonly in connection with, +-mall addresses +' These checks sometimes identified the specific +- and an domam names the user of an emafl inchuded in the EC asa "CAU Comment" or an "Analyst Comment" to differentiate the FBI mformatwn from the mforma'aon provided by the Stellar Wind source.332 +77s +- +Over time, Team 10 began to do more than receive and disseminate: +program-derived information. + +For example, Team 10 occasionally submitted telephone nurnbers to the NSA for possible querying against the database containing the bulk telephony meta data collected under Stellar Wind.333 +332 In this respect Team 10 handled Stellar Wind content reports differently from meta data reports, Team 10 analysts typically did not perform additional analyucal work on the information provided in Stellar Wind content reports other than to identify any FBI +cases to which the information was relevant. + +For example, a content report might summarize 1ntercepted communications indicating that an acquaintance of the subject of an FBI investigation is traveling to or from the United States. The connection between this ar Wind information and the relevant FBI investigation would be reported in the C. (PS1SFEWSH-OCHNE) +333 As described in previous chapters, the purpose of the bulk collection of meta data under Stellar Wmd was to allow the NSA to use analytical tools such as contact chainingll +' +o identify known and unknown individuals associated with al Qaeda or an. al Qaeda affihate The technique involves querylng the telephony or e-mail database with a number or address for which an analyst had a "reasonable articulable suspicion" to believe was used by persons involved in al Qaeda or.an al Qaeda affiliate, and then examining any contacts with that number or address. {FS/STEWHSHHOS/NE +The telephone numbers Team 10 provided typically were obtdined from the FBI's domestic and international counterterrorism operations; such as a riumber identified during a phone conversation monitored under FISA or a number found in the address book of a subject arrested abroad. The NSA +conducted independent analysis to determine whether telephone numbers +(or e-mail addresses) provided by Team 10 met the querying standard established by the Presidential Authorizations that governed Stellar Wind +(that is, a reasonable articulable suspicion to believe that communications from the telephone number relate to al Qaeda or an affiliated group).33+ +Team 10 also contributed to the NSA's drafting process for Stellar Wind reports. Telephone numbers and e-mail addresses identified through queries of the databases that contained the bulk telephony and e-mail meta data were reviewed by NSA analysts to determine whether the contacts should be reported to the FBI in a Stellar Wind report. Team 10 +participated in this process by reviewing draft reports and providing any information from FBI databases that might be relevant to this determination.335 +i LAOCHNR +'We were told that one of the benefits of Team 10's presence at the NSA arid its involvement in the Stellar Wind report drafting process was an improvement in the quality of the information disseminated to FBI field offices. For example, the FBI Supervisory Special Agerit (SSA) who supervised Team 10 from April 2005 +to July 5006 told the OIG that he tried b1, b3, to reduce the NSA's reporting of telephone numbers that were several hops b7E +removed from the telephone humber linked to al Qaeda or an affiliated terrorist group. He said that he wanted Team 10 to disseminate: "solid numbers with value," not numbers with questionable value.such as "high volume numbers" +(public telephones, for example) and The FBI SSA said that the NSA expressed the concern +334 Team 10 analysts submitted such telephone numbers to the NSA electronically through "Requests for Information," or RFIs, which is the formal process by which the FBI +and other agencies provide leads and request information from the Stellar Wind database. + +FBI records indicate that from April 2002 to January 2006 the FBI directedf +. + +to NSA analysts for possible analysis under Stellar Wind. + +The records'do not indicate the disposition of each RFIL +{ +: +; +i +335 The NSA developed formal "checklists" to guide the Stellar Wind report drafting process for telephony and e-mail tippers. + +The checklists include over 30 steps that NSA +analysts 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 Counterterrorism Center). + +A significant feature of the checklist from the FBI's perspective was the requirement that NSA analysts check any telephone numbers and e-mail addresses in a draft report with the FBI and "make best effort to include FBI +. + +. + +. data in [the] tipper." +that it could not foresee whether any particular contact, although remote, mright prevent the next terrorist attack, and did not want to find itself in the position of defending its decision not to pass. that number to the FBI. + +However, he said the. NSA: took: several ste ps to imiprove the guality of inforrnation such asf += +for the domestic contacts that were reported and incl analytica Jfi&effiems about the contacts. 336 +As discussed in Chapter Five, the government: transitioned Stellar Wind's bulk e-mail meta data collection (basket 3) to FISA authority in July +2004 with the Pen Reglster /Trap and Trace Order, bulk telephony meta data collection (basket 2) in May 2006 with the Section 215 Business Records Order, and content collection (basket 1) in January 2007 when the FISA Court granted the govemment's domestic and foreign selectors applications. + +STE +' +However, after the transition was completed the NSA continued to produce repoits: within the Stellar Wind compartierit to the FBI and other program customers, even though the information contained in the reports was derived from the FISA-authorized collection activities. + +Co the FBI continued to disseminate the information under the process. The current Team 10 supervisor told us that this decision, +1 +after consultation with the FBI's Office of the General Counsel (QGC), was made to adhere to the FISA Court's continuing requirement that international terrorism FISA apphcatlons be scrubbed for Stellar Wind information (the procedure for Wthh is described in Section HI of this chapter). + +- +- +The NSA received permission to begin the process to close, or +"de- -compartrment, " the Stellar Wind program after the Protect Amer1ca Act was passed in August 2007. + +In mid-2008, the NSA oifimally closed the program and discontinued issuing "Stellar Wind" +re +1ber +2008, the FBI initiated a new investigative file, e 0 += += +- +disseminate the NSA's FISA-derived information,337 +The Team 10 supervisor program was that the NSA was serving two customers - the FBI and the CIA +- but had _]LISt one set of reporting guldehnes This was so because the NSA tradm' +mination process and the FBI's cgort ination with the. + +s similar to what occurred undex| +1 +told us that NSA +under +'However, one notable ECs, can only include ecause the FBI's primary computer s cannot be used for Top Secret +' +e difference is that the NSA's FISA +, while classitied at the Top Secret/Sensitive Compartmented Information +(TS/SCI) level, are not subject to thecompartment desig is s standpoint. + +| +information classified Secret.or lower network for disS'emihathlg' co1 +] +formatio il agents in field .offices can NowW +request access to additional information b0 +leads because agents have the appropriate clearances, 'As discussed in Chapter Three and addressed below, the chief criticism ol leads was the lack of detailed information that could be pro ded to field agents about tippers because of the highly compartmented nature of Stellar Wind. + +## 1L S Decision To Issue National Security Letters Unde To Obtain Telephone Subscriber Information (S/43F}- + +From August 2003 to November 2006, as part of the process the Communications Analysis Unit (CAU) assumed respo ty from the field offices for requesting National Security Letters (NSL) +to obtain +'subscriber information fo +\tclephorie nuimber tippers;338 +Tk NSLs were authorized by the FBI's OGC +and issued pu suant to the project. As discussed below, however, this practice was.contrary to applicable FBI investigative guidelines because non-investigative file and therefore under FBI policy should not have been used as the basis for issuing NSLs. ~(S/-NF) +The FBI uses NSLs to obtain information from third parties such as telephone companies, financial institutions, Internet service providers, and consumer credit agencies. NSLs, authorized by five specific provisiens comtained in four federal statutes, direct third parties to provide -customer account information and transactional records such as telephone toll billing +338 Field offices remained responsible for issuing NSLs in connection with e-mail address tippers, which was likely attributable to the comparatively low volume of e-mail tippers and the ability of field offices to handle themn expeditiously: {8//8}- +records, +339 The OIG issued two reviews in 2007 and 2008 examining the: +FBI's use of NSLs:30 +(U) +Justice Department investigative guidelines issued by the Attorney General govern the circumstances under which the FBI may use NSLs. The Attorney General guidelines in effect during the Stellar Wind program authorized the FBI to issue NSLs relevant to and in the course of an authorized national security investigation,341 Further, FBI internal policy distinguishes between "investigative files" and non-investigative +"administrative files" (commonly referred to as "control files"). This distinction is niot 4 mere techmicality. Investigative files, in the national security context, are opened based on evidence that a person, group, or organization is involved in international terrorism. From October 2003 to September 2008, the Attorney General Guidelines required the FBI to provide summary reports to the Justice Department at the end of each year bl, b3, b7E +339 The four federal statutes are the Right to Financial Privacy Act, 12 U.8.C, +'3401-3422; the Electronic Communications Privacy Act (ECPA), 18 U.S.C. 2709; the Fair Credit Reporting Act, 15 U.S.C. 1681 et seq.; and the National Security Act, 50 +U:S.C.. 436a)(1) (2000). + +NSLs issued underf Irelied on the ECPA statute, which provides that the FBL may obtain subscriber information from a communications service provider if the FBI certifies that the information sought is televant to an authorized investigation to protect against international terrorism or claridestine intelligence activities: provided that.such an investigation of a United States person is not coniducted solely on the basis of activities protected by the first amendment to the Constitution of the United States. + +18 U.S.C. 2709(b)(2) (2000 & Supp. IV 2005). The statute also permits access to "toll billing records" or "electronic communication transactional records;" 18 U.S.C. 2709(a), but requires a warrant:for access to the content of telephone communications. + +See 18 +U.S.C. 2511 (Wiretap Act) and 3121 (Pen Register Act); see also 18 U.S.C. 2702(b)(8). + +(v +, +340 The OIQ's first report on NSLs, issued in March 2007, was entitled, A Review of the Federal Bureai of Investigation's Use of National Security Letters. The OIG's second report, issued in March 2008, was entitled, A Review of the FBI's Use of Nufional Security Letters: Assessment of Corrective Actions and Examination of 'NSL Usage in 2006. + +{U) +34 Prom March 8, 1999, through October 31, 2003, national security investigations were governed by the Attormey General's Guidelines for FBI Foreign Intelligence Collection arid Foreign Counterintelligence 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) +bl, b3, b7E + +## "Inquiry," Under The Fci Guidelines) Requires 0N1'Y S' + +of suich involvement. + +See NSI Guidelines, Section II.C. (October 31, 2003); FCI Guidelines, +' +Section I1I.B. (March 8, 1999). {S7/NH- +a fuill nationial security investigation continues. These requirements helped ensure that there was sufficient, documented pred1cat10n for investigative activities FBI agents sought to conduct such as requesting NSLs. + +S +/NE) +Control files, in contrast, are "separate files established for the purpose of administering specrfic phases of an 1nvest1gat1ve matter or program." The files do not require any predication and remain open b1, b3, indefinitely W1thout any reporting requirements for national security b7E +: +le, the September 2002 EC requestmg that a +"g dedicated control file for thls pr o_]ect w111 better serve the spec1f1c needs of the special p1 oject and will add an- additional layer of security for the source." The file has remamed open smce September 2002 without any + + +(As d1scussed below 111 +the FBI opened an control file was not closed.at that time.) +impropet for the FBI to issue NSLs from control files duri ing the Stellar Wind program. ~(S/7/NF- +The OIG's March 2007 NSL report identified th pro_]ect as orie of two circumstances where the FBI was using con ather than investigative files to issue NSLs. The OIG report concluded that this use Eliabl +7 +was contrary to FBI policy. However, our report also founid that the CAU +officials involved in the demsmn to issue NSLs from the file concluded i connect the] +' +N SLS with emstmg prehmmary' or full 1nvest1gat10ns of al Qaeda and affiliated groups or to open new preliminary or full investigations in compliance with Justice Department investigative guidelines. S/ NF} +As part of our review of the FBI's participation in 'Stell: +: +sought additional explanation for the uise of NSLs under We were told the purpose of having the CAU instead of t +' +he field offices obtain approval for the issuance of such NSLs was to make the:telephony tippers + +that field offices at a minimum knew the b1, b3, rs. + +As described in Chapter Three, the members +- b7E +of thel v +(the predecessor t had received comple rom agents in FBI field offices that leads lacked direction about how to make investigative use of the telephone. numbers and did not provide sufficient information to open nati al security h investigations. 'This was problematic because. + +isseminated under the and for a time unde nstructed field offices to obtain subseriber information for tipped telephone numbers, Thus, if agents could not locate the information in FBI or commercial databases, they faced a dilemma about how to proceed in the absence of what they viewed as sufficient predication. + +- +: +The: CAU's first Unit Chief (who served in an Acting capacity) +bl, b3, +' +roblem in an EC distributed in January 2003 that addressed b7E +project. The EC stated, on the nature of the information provided [in an +|lead), field offices. may determine this intelligence used to predicate either a criminal investigation or an b1, b3, e investigation of someone in their territory. + +Some of b7E +theff@ +@ +leads may contain a request for a field office to confirm a subscriber in their territory, if possible, in addition to providing intelligence. + +The identification of some subscribers might actually require a National Segurity Letter +(NSL) or a Grand Jury subpoena; however, the +__ +controlfile would not be the appropriate legal authority for these requests. + +The Acting Unit ChiePs supervision of the CAU ended in February +2003. + +In March 2003, another FBI Supervisory Special Agent (SSA) was b1, b3, appointed as the CAU's first permanent Unit Chief. + +He told us that when he b7E +joined the CAU he was aware that field offices sometimes did not obtain i information 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 ppers contained sufficient information to open preliminary bl, b3, b7E +investigations and issue NSLs.34F57//STEW FHOE/D +The Unit Chief wanted field offices at a minimum to know the identityof subscribers of tipped telephone numbers. He also said it was important +'to ascertain the correct identities of the subscribers at the time the tipped calls were placed. The Unit Chief stated that if the field office did not issue an NSL for subscriber information promptly, or if the field office relied only +. + +on publicly available information, the passage of time could cause the user of the phone to be misidentified. + +In addition, the Unit Chief said that even if a tipper did not result in any investigative value at the time of the tip, it nevertheless was important to identify the subscriber in the event the tipper became relevant in the future or to another investigation. For all of these reasons, the Unit Chief said he took steps to make the CAU, instead of the FBI field offices, responsible for issuing NSLs for telephone number tippers under the Stellar Wind program.34* +AFT877/51E KHSHE +' +In approximately Ju AU analyst was read into the Stellar Wind progfam to proces NSLs. The analyst told us she b1 +questioned the Unit Chief and the Team 10 supervisor about whether it was b3' +permissible to issue NSLs out of a control file; The Unit Chisf tald us that b7i +he was not aware at this time that a control file such asf sould not be used to issue NSLs. {FSH-STEW/SHFOENF- +The analyst volunteered to approach FBI OGC and met with Marion +"Spike" Bowman of the OGC''s National Security Law Unit to discuss this concern. + +She said she told Bowman that the CAU wanted to know if it bl, could issue NSLs under] +in view of its status as a control file. + +b3, She said she told Bowman that the NSLs would seek subscriber information b7E +only and that field offices would be responsible for seeking related 'tqllv billing records if warranted by additional investigation. (FSHHSTEW/SHFOCTNF) +According to the Bowman said that it would be permissible to issue NSLs out of thel +1 file as long as only subscriber information +1) 13 +was sought. + +The analyst said she could not recall whether Bowman b7ii +' +affirmatively stated that issuing NSLs from a control file would be +343 On January 16, 2003, 2 months before the FBI SSA was appointed Unit Chief of the CAU, Attorney General Ashcroft authorized the FBI to issue NSLs during preliminary investigations, Prior to this time, the FCI guidelines authorized the FBI to issue NSLs only as part of a "full investigation." S/HNF +344 The Unit Chief told us that he did not believe it was critical at the preliminary stage to also obtain telephone subscribers' calling records, or "toll records," identifying all outgoing and incoming calls. + +W +permissible or whether he merely agreed that it would be permissible under the conditions the analyst presented.345 {FS/HSTLWH/SHHOCHNF +Shortly after the meeting, the CAU implemented procedures for reequesting that OGC issue NSLs to obtain subscriber information for each ephone number tipper disseminated to field offices that the slready aware of or for which it did not have subscriber Under these procedures, the CAU analyst received a copy of bl, b3, chi +. + +EC with telephone number tippers.as they were issued by b7E +Team 10 +and drafted a separate approval EC to the NSLB that repeated this information and requested that the NSLB issue NSLs for the numbers listed. + +NSLB attorneys were responsible for determining whether the NSL requests were "relevant to an authorized investigation," as required by statute. Ifthe attorneys determined that they were, NSLs were drafted and signed by the Deputy General Counsel for NSLB and forwarded to the CAU for service on the appropriate communications service providers. + +The providers returned the responsive records to the: CAU, which in turn disseminated the information. + +to the appropriate FBI field offices. From + +'November 2006, the CAU issued over 500 NSLs under| +B +1. October 2004. She was responsible for b1, b3, NSLs requested by the CAU. Thomas b7E +1 +the operational reasons the CAU began issuing but stated that it was not until the OIG was iew of the FBI's use of NSLs in 2006 that she learned +'g' NSLs. + +Thomas said that the CAU's requests to NSLB to authorize NSLs under v always identified the specific file number associated with the project and indicated that the CAU had initiated a preliminary inquiry in connection with the NSL request. Thus, in Thomas's view, the NSL being requested was "relevant to" an authorized investigation, as bl, b3, the contact was related to al Qaeda or an affiliated group. + +Caproni said that in view of the b7E +hundreds of al Qaeda investigations the EB +conducting, Bowman likely concluded it was permissible to issue NSLs unde for the subscriber information of tippers even il at the time there was not a specific investigation to which each NSL could be connected. The Team 10 supervisor at this time told the OIG that he recalled the decision toissue NSLs from was based on close relationship to the FBIs ongoing investigations of al Qaeda and affiliated groups. + +required 'by';st'atute and Justice Department investigative guidelines.346 +However, Thomas said she did not believe th IS +e improper even though they were issued from a control file. + +Thomas stated that the NSLs in fact were relevant to authorized international terrorism b1 +vanBStlgathI'lS in that the FBI was conducting hundreds of investigations of b3, +-al Qaeda and its affiliates at the time the NSLs issued. Thomas told the: OIG +b7ii ithstanding this position, in November 2006 the FBI converted to an "umbrella investigative file" to reflect the program's relationship to international terrorism investigations. PSS/ NEY +The OIG reviewed the comimunication from the CAU opening this investigative file. + +It stated that a member of the U.S. Intelligence Community [the NSA] reported to the FBI that al Qaeda members and +'associates are using telecommunications systems to facilitate their terrorist activities, that the FBI has 1ndependently determined that this is oceurring, b1, b3, and that "inasmuch that Al-Qa'ida is.a multi- faceted and international b7E +terrorism organization, the FBI has determined it is appropriate to open a full field investigative [sic]." The communication stated that the CAU was using information ebtained from the member of the U.S. Intelligence Communlty to issue NSLs and that the results are disseminated to the appropriate FBI field offices. The communication also advised thatall investigative leads associated with the investigation would be titled to protect the source of the information and the methods used.t +'obtain the information. {FS/ASTEW//SHHAOC/NE)- +yrrently is taking a similar approach to NSLs under the A field office (instead of the CAU) is authorized to issue an bl, b3, vestigative file, even if the field office does not b7E +gatmn and the tlpped domestic telephone number or relevant to another open investigation. However, NSLs +'open its own mvestl e- -mail +- add:ces +' + +## (Hps%%%L:Lne) + +The FBI's decision to restrict +|NSLs in this way was not bl, b3, required by law, but was an operational decision. + +As discussed below, FBI +47 +Thomas told us that she did not realize that the +"C demgnatlon stood for +"Control File." +In addition, in the approval ECs reviewed by the OIG that sought the issuance of NSLs, the CAU stated, among other bl things, that thef +' +ource" reported telephomc contact between possible al Qaeda +' +or other international terrorism entities and numbers in the United States and that "a b3, prehmmary CAU inquiry was coriducted for the US telephone numbers reported by this b7E +source, -('1'37'7'3'}'{7%'7'7'517'%9%?9 +field offices addressed mos ippers by conducting "threat assessmernts" to determine whether the tipper had a nexus to terrorism and warranted the field office initiating a preliminary or full investigation. The subscriber information for a tipper is suf] +t for purposes of completing a. + +thrc::a-tzas_sessjment.- +The same is true for| +tippers, and t'he,currcnt' +Team 10 supervisor told us that it would 1ot be & "good business" practice to collect transactional records on a U.S. person unless a threat assessment justified the field office initiating its own preliminary or full investigation of the individual ES//SLLANE) +We believe the FBI should have opened an investigative: +file 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 investigations of groups for which there were specific and articulable facts to believe were involved in international terrorism, such as al Qaeda. However, the FBI decided to issue Stellar Wind NSLs from an existing control file, which was contrary to FBI internal policy. + +-(PS/STEW/SHO/M +We did not find evidence that officials from the CAU and OGC invelved in the decision to use an existing control file to issue NSLs related to Stellar Wind information deliberately tried to circumvent FBI guidelines. The July +2003 rationale for issuing the NSLs out of the control file ~ the close. + +' +relationship between the Stellar Wind program and the FBI's ongoing investigations of al Qaeda and affiliated groups eritially was the reasoning used in November 2006 +{ +en thef +___ +|investigative file and in November 2008 to open the investigative file. As we found in our March 2007 report concerning the FBI's use of NSL +Al OGC officials involved in the decision to issue NSLs from the control file concluded. + +i ith that the FBI had sufficient pi +, either to connect th SLs with existing preliminary or full investigations of al Q +iliated groups orto open new preliminary or full investigations in compliance with Justice Department investigative guidelines, Nevertheless, the decision violated FBI internal policy. + +(PS/FSTEW +81 OS/NF)- + +## Tix. And Scrubbing Process {Ts/7/Sh//Wf] + +As discussed in Chapter Three, the Department implemented a process imposed by the FISA Court to "scrub" FISA applications to account for Stellar Wind-derived information. The objectives of the initial scrubbing process were to determine whether any NSA 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 Stellar Wind collection {commonly referred to as.dual coverage). + +The scrubbing process was coordirated by the Justice. Department and NSA, beginning in February 2002 after Judge Lamberth was read into Stellar Wind., In May 2002, Judge Kollar=Kotelly succeeded Judge Lamberth as Presiding Judge of the FISA Court and continued the scrubbing procedures. However, whereas Judge Lamberth required only that he be notified of applications that contained Stellar Wind information, Judge Kollar-Kotelly required that such information be removed. + +As described in Chapter Four, on March 14, 2004, OIPR Counsel Baker briefed Judge Kollar-Kotelly about the President's decision to sign the March 11, 2004, Presidential Authorization without the Justice Department's certification as to the Authorization's form and legality, and about subsequent changes the Authorization made to the Stellar Wind program. {FS775HT +According to a handwritten letter Judge Kollar-Kotelly drafted to Baker following this meeting, Baker had informed her that the Stellar Wind +||| +Theletteralso stated that Baker informed her that with these +'changes the Deputy Attorney General agreed to certify the program as to form and legality, and that OLC had prepared a new legal memorandurm regarding the legality of Stellar Wind to replace the November 2001 +mermorandum authored by Yoo, +{FS/ASPEWHSL/QC/NE) +Judge Kollar-Kotelly's letter marked the first time her expectations concerning the Department's use of Stellar 'Wind information in FISA +applications was communicated in writing to OIPR. Judge Kollar-Kotelly 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 FISC in May 2002, the [Stellar Wind] +program and FISA applications are to be kept separate, and no information direct or indirect, derived or obtained from [Stellar Wind] should be included in FISA applications. Only in this way carl the 1ntegr1ty of the process and 1nte111gence collected +{'PC:/ 'QTLW' /SL- I/OAIINF} +Judge Kollar-Kotelly also wrote that she would not sign any FISA +applications that contained substantive information from Stellar +'Wind-generated tips or any apphcatmns where the Stellar Wind tip was the sole or principal factor for an agency initiating the underlying investigation, +"ayen if the investigation was conducted independently of the tip from +[Stellar Wind]." {(TS//STLWL +/ST OENFY +Baker told us that this letter was Judge Kollar-Kotelly's preliminary response to the changes in the Stellar Wind program. Through subsequent discussions between Judge Kollar-Kotelly and Baker, and between Baker and other Department and FBI officials, a more flex1b1e arrangement was reached on scrubbmg that addressed Judge Kollar-Kotelly's conceerns without imposing an absolute prohibition on including certain Stellar Wmddenved 1nformat10n in FISA applications.347 +bl, b3, b7E +In short, the scrubbing procedures implemented in March 2004, and that continue to the present day, substantially expanded the procedures OIPR originally developed in Februery 2002348 In addition to deterinining whether any NSA information contained in international terrorism FISA +apphcatlons was derived from Stellar Wind and whether there was any dual coverage, Judge Kollar-Kotelly required the FBI to determirie whether any facility (telephone number or e-mail address) that appeared in a FISA +application also appeared in a Stellar Wind report and, if so, whether the FBI had developed, independent of Stellar Wind. + +an investigative interest in the facility before it was the subject of an per.349 This third +377 FBI OGC said that it was not until these discussions 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. {F&/{SH-ANE- +348 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/TT and Section 215 bulk meta data orders. + +Until mid-2008 when the Stellar Wind program officially was closed, leads the NSA 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 beheve in May 2002, when he first discussed the subject with Judge Kollar-Kotelly, that such a serub was possible. Baker told us that by March 2004 he better understood the NSA's and FBI's process for +-dlssemmatmg Stellar Wind information and the agencies' ability to track program-derived tips in a timely manner.{T87/78TLW/ +/8T OC/NF)~ +scrub is coordinated among OIPR, the FBI's: +National Security Law Branch +(NSLB), and Team 10. + +The scrub requires NSLB to compile & list of all "facilities" = telephone numbers and e-mail addresses - that appeared it any draft international terrorism FISA applications.350 This list is compiled as 'FISA packages becorie ready for filing with the Court and is provided to an attorney in NSLB read into the Stellar Wind program. The attorney in turn forwards the facilities list to Team 10 at the NSA, Team 10 checks edch facility against the NSA's Stellar Wind reports database to determine whether a listed facility is contained in any Stellar Wind reports and, if so, whether the facility appeared in the tearline portion of a report that was further disserninated to FBI field offices. + +If both inquiries are positive, Team 10 +notes the date of the relevant Stellar Wind report and searches the FBI's Automated Case Support System (ACS) to determine whether the facility appears in ACS and, if so, the date the facility came to the FBI's attention. + +Team 10 reports the results of these checks to the NSLB attorney for review. + +(187 /STLW //ST/ /QC/NE) +The NSLB attorney takes one of two steps at this stage. + +If Team 10%s checks are negative - meaning none of the facilities are contained in a Stellar Wind report or contained in information below the tearline of a Stellar Wind report - the NSLB scrub attorney notifies the OIPR attorney and FBI case agent that the FISA application can be cleared for presentation to the FISA Court and that the application can proceed to final processing. + +If both checks on a facility are positive, the NSLB attorney will try to determine if there is a basis for the Court to allow the information in the application based on the theories, discussed in further detail below, that the FBI had an independent investigative interest in or would have inevitably discovered the facility in question. + +To determine this, the NSLB attorney researches FBI databases, analyzes records, and attempts to craft an argument under one of these theories. The NSLB attorney then provides this information to OIPR for presentation the Coutt. + +If the NSLB attorney canmnot 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 importarit to the probable cause showing, the NSLB attorney discusses with OIPR +whether to make the argument to the appropriate FISA Court judge (initially Judge Kollar-Kotelly and now, the judge assigned to case) that the facility rievertheless can remain in the application. + +-+ +: +According to the Deputy General Counsel for NSLB, the argument to keep such information in an application is based on "standard Fourth Amendment [exclusionary rule] analysis." The "exclusionary rule" generally holds that where the government obtains evidence in vielation of the Fourth Armiendment, the court will suppress, or exclude, the evidence from the prosecutor's case-in-chief in a eriminal trial. Under the "fruit of the poisonous tree" doctrine, a corollary to the exclusionary rule, any evidence obtained directly or derivatively from the government's improper conduct is also excluded. However, there are several exceptions to the exclusionary rule, two of which were relevant to scrubbing: independent source and inevitable discovery. The independent source exception holds that the exclusionary rule does not bar the use of evidence obtained in violation of the Fourth Amendment if there is also an independent, legal source for the evidence.351 The inevitable discovery exception applies when evidence obtained in violation of the Fourth Amendment would have been obtained independently had the illegal search not occurred, which the government rnust prove by a preponderance of the evidence.352 +(U) +Thus, in the scrubbing context, the issue is whether the Stellar Wind information contained in a FISA application should not be excluded, either because the FBI had an investigative basis independent of Stellar Wind for including the information in the application or because the FBI inevitably would have discovered the information in the absence of Stellar Wind. + +More specifically, under the independent investigative basis exception, if Team +10' search of ACS shows that a facility came to the FBI's 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.353 NSLB 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 - in nearly every instance that a facility contained in a FISA application also appears in a Stellar Wind report, {TS/STEWSHAOCTNF) +(U) +353 +For example, in one case the NSLB attorney's review of the underlying investigative file showed that the FBI had obtained the telephone number at issue in response to an NSL Letter. + +Because the NSL was dated earlier than the Stellar Wind report that also contained the telephone number, the FBI had an independent investigative basis for including the number in the FISA application. PSS +ASLLLOC/NE) +The inevitable discovery exception in the scrubbing context applies whien Team 10's check of ACS indicates the FBI was not aware of the facility before the date of the Stellar Wind report containing the facility. Under this approach, the NSLB attorney attempts to demonstrate to OIPR that normal investigative steps in the underlying investigation inevitably would have identified the facility in question. The scrubbing attorney analyzes such case evidence as close associates and other relatioriships of the subjects of the investigation that could logically lead investigators - through NSLs, for example +- to the facility contained in the Stellar Wind report,354 +Until January 2006, when the full FISA Court was read into Stellar Wind, Judge Kollar-Kotelly required that &ll applications the FBI determined contained facilities or information that also appeared in Stellar Wind reports be cleared with her before being filed with the FISA Court. As she wrote in a January 12, 2005, letter to OIPR, "l want to ensure, that, to the extent +' +possible, [Stellar Wind] information is excluded from applications submitted to the FISC and that, if it is necessary to include such information, it'is specifically identified to the FISC as derived from [Stellar Wind] collection when the application is presented." OIPR Deputy Counsel Skelly-Nolen - +who was read into Stellar Wind on March 12, 2004, but who had been involved in the scrubbing process since 2001 - was responsible; along with Baker, for coordinating this 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. + +v WASHHOG: +Skelly-Nolen characterized the applications she presented to Judge Kollar-Kotelly as either "vanilla" or "non-vanilla." Vanilla applications were those for which Skelly-Nolen could confidently represent that the FBI had an independent investigative basis for the facility identified in the application that was the subject of a Stellar Wind report (for examiple, a facility the FBI learned of through FISA coverage that pre-dated the Stellar Wind report). + +Skelly-Nolen told us that over time Judge Kollar-Kotelly allowed the vanilla applications to be handled telephonically in an unclassified 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 For 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 underlying investigation was the target of an FBI national security investigation, and OIPR argued that the telephone number inevitably would have been connected to the subject through the "natural course of thie investigation," possibly from toll records associated with other telephonie numbers used by the subject, trash covers and open source information, or physical surveillance. + +inevitably would have discovered the facility in question during the normal course of investigation. + +Skelly-Nolen said these cases were-always discussed with Judge Kollar-Kotelly in persorn. + +- +Skelly-Nolen told us that there were instances when Judge Kollar-Ketelly requested additional information to support the proffered theory for including Stellar Wind information in the FISA application. In some cases, Judge Kollar-Kotelly simply struck a line through the paragraphs in the filed application that contained the Stellar Wind-derived information and annotated in the margin, "This section (strike) not considered in evaluation of probable cause," followed by her signature arid the date. Skelly-Nolen also said that in one or two cases Judge Kollar-Kotelly required that certain Stellar Wind information arguably necessary for establishing probable cause be removed from the applications.355 However, in general Judge Kollar-Kotelly accepted OIPR's and the FBI's assessment that there was a non-Stellar Wind investigative basis for the informiation in question, or that the information inevitably would have been discovered even in the absence of Stellar Wind-derived tips to the FBI. {FS/1SPEW/SHAOCNF- +After operating under the expanded scrubbing procedures for approximately 6 months, Judge Kollar-Kotelly agreed in November 2004 to allow other FISA Court judges who had not yet been read irnito the Stellar Wind program to handle scrubbed international terrorism applications. + +However, Judge Kollar-Kotelly still required that Skelly-Nolen bring to her attention all vanilla and non-vanilla applications so they could be "cleared" +before being formally filed. As noted above, it was not until January 2006, when the full FISA Court was read into Stellar Wind, that Skelly-Nolen was able to discuss such cases with other judges. {FS//STLW/FSHHAOCHNE} +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 FISA application that references a facility that was disseminated under Stellar Wind is brought to the attention of the judge assigned to the case.3%6 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 relies on the independent investigative interest theory in the majority of cases in which it seeks to keep a facility in an application; The attorney also said that from-the perspective of the Office of Intelligence the scrubbing process is more manageable today than in the past because the process is better organized, additional personnel have been read into the program, and the FISA Amendments Act of 2008 extended the period of time the government must bring emergency applications to the FISA Court from 72 +hiours to 7 days. However, from the FBI's perspective;, the scrubbing process-continues. to be burdensome and requires a significant expenditure of time and other resources. + +{FS//SEEWAHSHLOE/ +' + +## Iv. Impact Of Stellar Wind Information On Fbi Counterterrorism Efforts {8} + +This section examines the impact of the information obtained from Stellar Wind on FBI counterterrorism efforts. + +It first provides statistics the number of tippers from Stellar Wind information ~ +. e-mail, and content - disseminated to FBI field: offices through bl, b3, +' +Next, it describes how FBI field offices generally +~ 7E +tippers and the typical results of the investigations. + +This section then + +arizes two statistical surveys of mieta data tippers: +the FBI conducted in 2006 to assess the value of Stellar Wind to FBI +operations, and describes observations about the program's value provided to us by FBI officials and employees in OIG interviews and contained in documents the OIG obtained during the course of this review. + +Finally, the section examines -FBI international terrorism investigations commonly cited as examples of Stellar Wind's contribution to counterterrorism efforts in the United States. + +{F3 +WHHSH +AN +A, bl, b3, b7E +We reviewed FBI and NSA statistics relating to the Stellar Wind program. According to an NSA document, from October 1, 2001, to bi, February 28, 2006, the NSA provided +|telephone numbers and b3, e-mail 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 NSA provided the FBI by type. + +{37+ +As described in Chapter Three, the NSA provided ratings, or for each telephone number and e-mail address to help the FBI prioritize the tippers being disseminated to field offices. The FBI +_defined the rankings in ECs disseminated to field offices in the following manner: +The FBI included these rankings in +. + +ECs until early 2003. + +At that time, Team egan to make independent assessments about tippers' priority for the FB +on that basis, and generally discontinued including the ratingsinf += +A ECs, As discussed in this chapter, Team 10 usually set tion leads for telephone numbers and e-mail addresses the FBI did not already know and Discretionary leads for those the FBI was aware of in connection with closed or onigoing cases. + +We could not compare the relationship between the NSA's and the FBI's 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 FBI's Detroit and Seattle field offices, we examined the number of individual telephone numbers and e-mail addresses provided to those offices and the type of lead assigned for each. + +We determined that FBI Headquarte i Action leads for approximately 50 percent of the total lleads sent to these offices. + +As depicted in Chart 6.2, of th ads sent to the Detroit field office from December 2001 to December | +Action leads. During this same period, of the eads sent mbels and e~ma1l addresses that NSA 111 terms of their connections to +\ Diec:etmnary +: +We also found tha eads were distributed unevenly among FBI field offices.. The majority of tippers were disseminated to large offices with substantial counterterrorism programs, such as New York, bl, Washington, 'Chicago, and Los Angeles, and to offices. Whose territory contained significant Middle Eastern populations. + +such as. Yetroit. + +For example, FBI records indicate that of thel leads disseminated in 2005, 50 percent were: as.31gned to 10 fie d offices. Table +6.1 depicts: the d1st11buuon o lin 2005 among FBI field offices.358 {FS+ +seminated underfii g +359 Rather, the type of lead that the EC assigned - Action, Discretio Information - governed a +389 +Ag discussed in Chapter Three, the practice under th first several weeks of the Stellar Wind program was to set Action leads for all telephone number tippers. This pgactice wasmg ified when th A +; +(s ipper +360 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 office takes the specified action or conducts appropriate investigation to address the information in the EC. + +A Discretionary lead allows the field office to make a determination whether the information provided warrants investigative action. + +A field office that receives a "For Information" lead is not expected to take any specific action in response to the EC, other than possibly route the +(Cont'd.) +provided information derived from communications of telephorie numbers +'and e-tnail addresses under surveillance, generally assigned Discretionary or For Information leads. The information in these tippers usually related to bl, individuals already under FBI investigation and was provided to the agents b3, respons1ble for those cases, +| +e-mail address tippers generally b7E +assigned Discretionary leads to field offices unless the information was particularly urgent. As noted above, content and e-mail address tippers accounted fora comparatlvely small portlon of the tippers disseminated by Team 10. {FS/5 +: +- +The vast majority of FBI investigative activity related to Stellar Wind mformatlon involved responding toft i e telephone number tippers that assigned Action leads. Team 10 generally assigned Action leads for bl, telephone numbers that the FBI did not previously know or that Team 10. + +b3, othervvls deemed a high priority, such as a number that had a relationship b7E +0 +a FBI investigation.36! From approximately September 2002 (when +_was created) to July 2003, Action leads instructed field offices to obtal ubscriber information for the telephone numbers within its jurisdiction and to conduct any "logical investigation to determine terrorist connections." However, some agents complained that these Action leads +'1acked guidance about how to make use of the tippers, particularly given concerns-that the communications provided insufficient prechcahon to. open na onal security investigations. + +Two charnges in 2003 addressed some of these. complaints. First, in July 2003:the CAU assumed responsibility from field offices for issuing b1, b3, NSLs, as we discussed in Section II above. Second, in October 2003 the b7E +Attorney General issued new gu1dehnes for FBI natlonal securlty investigations that ecre +"threat assessment."36 +commiinication to the office personnel whose investigations or duties the information concerns,{S/~ANE +361 +Dlscretlonary leads were assigned 1o telephone numbers that already were known to 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 appropr iate" to bring the information to the attention of the appropriate case agent. 8/NF +362 +As noted earlier, the October 2003 guidelines, entitled Attorney General's Guidelines for FBI National Security Investigations and Foreign Intelligence Collection (NSI +guidelines), replaced the Attorney General Guidelines for FBI Foreign Intelligence Collection and Foreign Counterintelligence Investigations. + +In September 2008, the Attorney Geneeral issued Guidelines for Domestic FBI Operations that replaced the October 2003 NSI +guidelines with respect to domestic operations. + +The September 2008 guidelines use the term "assessment" instead of "threat assessment." +(U) +number tlppers 111structed field offices to con bl, b3, b7E +During our review, we visited the Detroit and Seattle field offices to review their handling o +| +lleads, In addition, we interviewed several supervisory specnal agen s-at FBI Hcadquarters 'who had experience handlmg the leads in their respective field offices before being read into the rogram. + +In.general, these agents' and analysts' experience with Teads was unremarkable. + +A threat assessment coriducted by these agents and analysts typically involved querying several FBI, public, and commercial databases for any information about the tipped telephone number, and requestmg that various state and local government entities conduct similar queries. Sometimes these queries identified the subscriber to the telephonhe number before: the CAU obtained the information with an NSL. + +In other cases, the threat assessments contlnucd after the field office received the NSL results 363 +Examples of the databases utilized in their threat assessments ed s thc Automated Case Management System bl, b3, b7E +The results of their checks of these databases could sometimes be extensive and include personal information not only about the subscriber to the tipped telephone number, but also about individuals residing in the subscriber's residence ar other acquaintances. In other cases, checks were negative or revealed little information about the number or the subscriber. {S//ANE} +bl, b3, b7E +b1, b3, b7E +~ +The agents and analysts said they reviewed the results of these database hecks to determine whether additional investigative steps under the threat assessment were warranted or whether there was predmatlon to open a preliminary inquiry. None of the-agents we interviewed cou initiating any investigations based on a th: +ment of an| +tipper.36* They said they frequently close conductmg a threat assessment interview: of the subscr ber and determining that there was no nexus to terrorism or threat to national security. + +Alternatively, the leads were closed based solely on the results of database checks, 4FS/H+SH-FNF +Under the Attorney Gereral's October 2003 national security investigations guidelines agents were not p ted to explain to subscribers how they bl b3, obtained the information that caused them to seek an interview. + +Instead, b7E +agents simply asked subscribers about their contacts in certain countries and with specific telephone: numbers. Agents told us that stibscribers generally consented to these interviews: and were cooperative and forthcoming. + +In-a few cases; subscrlbers refused the request or sought the advice of counsel.?66 +TS +365 On September 29, 2008, the Attorney General 1ssued new gu1del1nes for domestic FBI operations, whlchxncludes national security in n Thy tidelines b1, b3, i +'Compare b7E +Attorriey General's Guidelines for Domestic FBI Operations, +4.f. (September 29, +2008), with Attorney General's Guidelines for FBI National Security Invest1gat1ons and Foreign Intelligence Collection, Section I.A.6. + +(October 31, 2003). + +877 NF +numbers appeared on their face to be in contact with an individual involved in terrorism. + +In the Seattle field office, several interviews revealed that the foreign telephone calls placed to domestic numbers were made using a pre-paid telephone service from local stores hecause 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 terrorism used the foreign telephone number might have been accurate, the number also was used by individuals about whom there was no reason to believe were involved in terrorism. + +~ +FBI field offices were required to report the results of the threat assessments to the CAU. + +In most of the ECs we reviewed, the field 'offices reported all of the information that was located about the telephone numbers, includirg the details of any subscriber interviews, and then stated that the office determmed the tipped telephone number-did not have a nexus to terrorism and considered the lead closed. Much less frequently, field offices reported that a preliminary investigation was opened to conduct: +additional investigation.367 Regardless of whether any links to international terrorism were identified, the results of any threat assessrnents and the information that was collected about subscribers generally were reported in communications to FBI Headquarters and uploaded into FBI databases. + +## C. Fbk Stmtnstncal Surveys Of Meta Data Tippers + +The FBI made several attempts, both informal and more formal, to assess the value of Stellar Wind to FBI counterterrorism efforts. The first was an informal attempt by the FBI's OGC. + +FBI General Counsel Valerie Caproni told us that in early 2004 she spoke with the CAU Unit Chief and the Section Chief for the Communications Explmtahon Section about trying. + +tc assess the value of Stellar Wind information. According to Caproni, the two marnagers stated that based on anecdotal and informal feedback from FBI field offices, the telephony meta data tippers were the most valuable intelligence from the program for agents working on counterterrorism matters. However, Caproni told us it was difficult to conduct any meaningful assessment of the program's value in early 2004 because FBI +field offices-at that time were not required to report to PBI Headquarters the: +investigative results of the Stellar Wind leads disseminated under Bl Headquarters did not make such reporting mandatory urntil ctober +2004. As a result, Caproni's discussions with the FBI managers did not result in any written assessment of the program. + +improving the NSA's analytical process, but he said it was sometimes difficult to obtain such feedback. A CAU Unit Chief told us that the NSA expressed partlcular concern about insufficient feedback from the FBI regarding investigative result g 10 the tippers' +nexus to terrorism. + +He said this was a difficult situation in that professed to be sending out high value information about known links to terrorism," and it was +"uncomfortable" to receive little feedback from field offices other than, "You're sending us garbage." Members of Team 10 told us that efforts to improve field office feedback over time had mixed results. {FS/ASTEW/HSHALOCHNE- +The FBI's second informal assessment of the value of Stellar Wind came after the December 2005 New York Times articles that publicly disclosed the content collection aspect of the Stellar Wind program. Caproni said that in preparation for Director Mueller's testimony at congressional hearings in 2006 on the issue, she attempted to evaluate the Stellar Wind. + +program, Caproni stated that because NSA Director Hayden asserted publicly that the program was valuable, she: wanted Mueller's testimony to identify, if possible, any investigations that illustrated Stellar Wind's positive contribution to the FBI's counterterrorism efforts. Caproni stated that this. + +effort was complicated by the fact that Mueller's testimony would- be limited only to the aspect of the program disclosed in the New York Times article and subsequently confirmed by the President - the content. collection basket. + +As d1scussed above Caproni said that FBI field offices did not find thls +'spect of the +| +beas useful as thetelehon' metadata, _ +lwas comparati ely small and the FBI had P'ISA coverage on many of these already. + +Caproni told us that ultimately she was able to identify "a couple" of content tippers that contnbuted to FBI mvestlgatlons but she commented that there were not many. + +; +S +The FBI subsequently conducted two more efforts to study the Stellar Wind procrarn s 1mact on FBI oper auons, both in early 2006. The first study sampled the[EEEEITTIRTE tippers the FBI had received +' +Stellar Wind from 2001 through 2005. The second study reviewed +. le-miail tippers the NSA provided the FBI from August 2004 through January 2006, In both of these studies, the FBI sought to determine what percentage of tlppers resulted in "significant contribution{s] to the identification of terrorist subjects or activity on U.S. soil." We describe in the next sections the findings of these two studies. + +TS +L/ STLW{ SELLOC/NE + +## Telephony And E-Mail 1. Early 2006 Survey Meta Data Tippers + +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 to quantify the value of Stellar Wind intelligence for FBI counterterrorism operatlons The CAU conducted a statistical study for this purpose, and in May 2006 the FBI provided a opy b1, b3, b7E +: +unlque telephone numbers and e- ma1l addresses the NSA provided the FBI from the iniception of the Stellar Wind program through 2005.368 The study sought to determine what percentage of the t1ppers resulted in s1gmf1cant Lontrlbutlon[ | to the identification of J.S +- Wo kmg with an. FBI sta'ushelan Approximately 30 analysts from the FBI's. Counterterrorism Division were aSsigned the task of revi'ewin' +'t'ippers to determine the part1cular tlpper made a s1gn1f1cant" contr1but1on to FBI counterterrorism bl, b3, efforts. For purposes of the study, a tipper was considered "significant if it b7E +led to any of three investigative results:. the identification of a terrorist, the deportamon from the United States of a suspected terrorist, or the development of an asset that can report about the activities of terrorists." +A +tipper that led to a field office opening a preliminary or full investigation was not considered "significant" for purposes of the study. + +) +The analysts researched each tipper's disposition in invest: +~ords contained in FBI electronic databases, beginning with th +; +EC that disseminated the tipper to the field. + +If an analyst conicluded b1, b3, baseed on this research that a tipper was significant, a second analyst who b7E +was familiar with the Stellar Wind program further reviewed that determination. + +If the CAU analyst agreed with the initial finding, the tipper + +## Include Content Tippers. (Fsha + +369 Most of the analysts were not reggd he Stellar Win oram and were told that the study concerned the disposition of leads. + +- Of] +tippers reviewed b1, b3, by the analysts, approximately 12 percent were e- -mail addresses, a figure consistent with b7E +the overall tlpper breakdown between e-mail addresses and telephone numbers. + +is methodolooy, the study found tha.t +1.2 percent, ficant The study extrapolated this b1, b3, +| +tippers and determined that one tippers the NSA provided the FBI +'-could ekp ct to fi b7E +\J. S/' / STLVVT/, Il ST / /fi(" /NW\ +under Stellar Wind were significant. + +The report documerniting the study's findings included brief descriptions ol +"s1gn1f1cant" tippers. + +For example according to the report, one tipper led to the opening of a full investigation that developed eviderice that the user of the tipped e-mail address had "definite ties to terrorism." The user was arrested and pled guflty to chargesoff bl, +' +Another tipper led. to theld itificatic an. 1nd1v1dua1 A"ho L +E3> +0ing Several of the "significant" 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 had an +1nvest1gat1on o1l concerning a subject associated with the tipper prior to receiving the EC. According to the study's brief description of b1, the case's sighificance, the investigative file stated that the tipper was "very b3, beneficial in the on-going investigation" by connecting the subject to b7E +terrorism, without descrlblng that connection. Another tipper caused a field office to changc a preliminary 1nvest1 atlon to a full investigation regarding the possible illegall = += +The tipper indicated a connection between one 01 the subjects ot the prellmmary investigation and a known terrorist. + +The study also found that 28 percent of . + +tippers were never disseminated to FBI field offices for investigation. 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 +113'?7'13 +non-significant for purposes of the study. + +In addition, the study found that for 22 percent of the sample tippers, FBI field offices did not report any +370 According to a CAU analyst closely involved with the study, establishing a fairly +"tight" criteria to identify "significant" tippers was necessary i1 order to obtain statistically significant results within the one-week time frame the CAU was given to complete the review. The analyst told the OIG that analysts initially applied a broader "significant" +standard in their reviews 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 study was reached by consensus among Counterterrorism Division operational and analytical personnel. SO +NF +the tippers + never disseminated to FBI +_ +nknown invcs'tiga'tive results,;372 +The FBIs report of the study did not explicitly state any conclusions aboufic,'Wh:ethef"SteHar Wind was g valuable brogram, FBI OGC tols the 0OIG +that based in parton the results of this study, which found += +ofthe leads were significant, FBI executive managem;ent concluded: hat the +372 By its methodology, the only tippers the study assessed for "significance" were those for which field offices reported investigative results to the CAU and therefore generally did not take into account tippers assigned ag Discretionary leads. Discretionaly leads, as distinguished from Action leads, did not require field offices to report to the CAl about how the tippers were used. + +Yet, according to FBJ bersonnel, these leads sometimes were NSA continued to provide e-mail addresses to the FBI in Stellar Wind reports. + +F +5 +This second study, which reviewed each +| +e-mail tippers the NSA provided the FBI from August +2004 through January 2006, applied the +'sarle cmc'tl_f_i'o,d.olbgy for assessing "significance" +that was- ised in CAU's first bl, study. The second study found that none +~ +|e-mail tippers was b3, +"significant" under this standard. + +The rep ed, however, that many of b7E +the investigations related to the reviewed e-mail tippers were still ongoing. + +In addition, the study observed that some of the tippers reviewed had only recently been disseminated to field offices for ihVes'ti'getio'n and that it was possible investigation of these tippers had not been completed. + +(TS//STIW/ +/ST, /OC/NE) + +## D. ]F'?B?I_Judgmental Assessments Of Stellar Wind Information + +To attempt to further dssess the value of Stellar Wind information for the FBI, we interviewed FBI Headquarters officials and employees wha regiilarly handled Stellar Wind information. We a'lso'nte'rivievvedl. + +rsonnel bl in FBI field offices who were responsible for handling] +tippers. + +b3 +We asked these witnesses for their assessments of the impact of Stellar bR +Wind orf information on FBI counterterrorism operations.. We also recognize that FBI officials and agents other than those we interviewed triay have had experiences withfll +117 +ifferent than those summarized below. + +TLW +L/ SL/QC/T +The members of Team 10 ard its predecessor +. + +. + +were strong advocates of the program and stated that tt ey believed it bl, contributed significantly to FBI international terrorism investigations. + +b3, Several claimed that program tippers helped the FBI identify previously b7E +unknown subjects, although they were not able to identify for us any specific cases where this occurred. Other witnesses cited the FBI's increased cooperation with the NSA on international terrorism matters as a side benefit of the Stellar Wind program.373 {FS/+STEW/SHFOE/NF) +FBI officials and agents from the International Terrorism and Operations Section (ITOS) expressed a more moderate assessment of Stellar Wind. + +Nonee of the ITOS officials we interviewed could identify significant investigations to which Stellar Wind substantially contributed. However, they were generally supportive-of the program, often stating that it was "one tool of many" in the FBI's fight against international terrorism, ITOS personnel frequently noted for us the deficiencies in the Stellar Wind information disseminated to field offices, suich as the lack of details about the foreign mndividuals allegedly involved in terrorism With whom domestic telephone numbers and e-mail addresses Wwere in contact, H,oWe_V@r, these FBI employees believed the possibility that such contacts bl, b3, related to terrorism made .inVes_tigatiflng the tips worthwhile., Some ITOS +b7E +witnesses also told us that 1n their experience the FBI was already aware of telephone numbers and e-mail address'cs disseminated under q'oul'd ;"h'e'l,p Mmove cases forward" by eonfirming a subjlect's contacts with individuals involved in terrorism or identifying additional terrorist contacts. + +gent said that FBI field ffices might h +| +had there been agents in b1 +the offic-'e__s' read into Stellar Wind. He said that such agents would have b3, been better positioned than FBI Headquarters' officials to assure others in b7,E +v +, ple, one Supervisor stated that i represented FBI Headquarters' failure to Drioritize +: +information. + +He said that by simply disseminatin ippers to field offices in ECs that often provided little in the way of details, FB] +Headquarters effectively made the field offices "insurance carriers," placing the responsibility solely on them to timely and adequately investigate every lead. + +The supervisor stated that ordinarily he accepts this responsibility as part of his job, but that the tippers were especially frustrating +4, JRIS +L +X e AT RN +A +AERAI I STAS G +1 aUVF@;R-N +as compared to other counterterror ism leads the office rece1Ved because they did not provide sufficient information for him to prioritize the leads.374 +Another supewis'ory Special a'gent exp'.ressed a sim'ilar assessment of priority matters. He told us that he did not have the freedom to prloi itize El' +3, he manner he felt Was warranted by the information provided b7E +Field office agents who investigated +@ +|leads also were-critical of the lack of details contained in ECs about the nature of the terrorist connection to the domestic contact, or about the contact itself, such as the duration or frequency of the calhng activity. Some agents we interviewed said they also occasionally were frustrated by the prohlbluon on bL +usin nformation in any judicial process, such as in FISA +b3, applications, although none could identify an investigation in which the b7E +restrictions adversely affected the case. + +{TS//STLW//SI//QC/NE) +Most of the agents we interviewed viewed] +_ +another type of lead that required appropriate attention, and the agents bl, generally did not handle the leads with any greater care or sense of urgency b3, counterterrorism leads. {FS//SHNER- +b7E +b1, b3, al terrorism cases. Nevertheless the agents generally viewed b7E +ippers as a potentially valuable source of information, noting that the information developed from the investigations of tippers might prove useful in the future. (F57/SH-/NF) +Agents. also stated that through the threat assessment interviews they b1, b3, conducted of the subscribers to tipped telephone numbers, +"opened a window" to populations within the lield offices' jurisdiction that b7E +371 The supervisor stated thatj eads had little investigative value to his office, b information beirig provided. + +Such details might include, for example, what other +1, ifdividuals had access to the foreign telephone allegedly used by someone invelved in b3, internationial terrorism, and how many calls were made from that number and for what b7E +dirrations. These details would help evaluate the threat represented by the foreign number's contact with the tipped domestic number. + +Second, the supervisor said thef tippers lacked direction about what the office should do with a tipped number after a threat assessment has been conducted. {8778T/7NFI +In 2007, FBI Deputy Director John Pistole briefed the Senate Seleet Commmnittee on Intelligenice concerning the FBI's participation in the Stellar Wind program. + +A document prepared in connection with that briefing addressed, among other subjects, the program's value in FBI national security investigations. The document stated, +[S]uccessful national security investigations are rarely the result of & single source of information. Rather they occur after exhaustive hours of investigation and the use-of legal process in which bits and pieces of intelligerice from many sources are. + +gathered and combined into a coherent whole. The success or effectiveness of any mtelhgence program - whether Stellar Wind . . + +. or anything else ~ is sometimes. difficult to assess in the abstl.act because of that blending of multiple strains of intelligence and because success should never be measured only in terms of terrorist plots that have v131b1y been disrupted, but also in plots that never formed because our investigative actions themselves had a disruptive effect. + +(Italics in original )375 (F3//3TEW/ +/St OCTNF +We interviewed FBI Director Mueller in connection with this review and asked him about the value of Stellar Wind to the FBI's 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 FBI's +[The] impact of any single piece of intelligence or program is difficult to quantify, Combination of various information, including humint, sigint, and elsur, is necessary to address the global threat. + +Accordingly, it is not possible to make an unequivocal "but for" connection between a tip and any particular FBI investigation that has resulted in a seizure or arrest. + +However, the information has .amplified, corroborated and directed FBI +investigative resources. {(FS/STEW/73H//OC/ +NF +communications analysis. Mueller also stated that to the extent such +1nformat1on can be cratherc-:d and used leoally 1t must be explmted and that h11.s " 'Asked 1f he was: famlhar w1th any spec1f1<: I"BI mvestlgatlons that represent Stellar Wind successes, Mueller said that as a general matter it is. + +very difficult to quantify the eeffectiveness of an intelligence program without +"tagging" the leads that are produced in order to evaluate the role the program information played in any investigation. + +: +' +We also asked Mueller about the issue of allocating finite FBI +resources to respond to Stellar Wind leads. Mueller said that in the period after the September 11 terrorist attacks, the FBI remained in a state of continuous alert for several years. + +Mueller stated that he understood the President's desire to take every step to prevent another terrorist attack, and believes that it would be wrong not to utilize all available capabilities to accomplish this, so long as it is-dore legally. {TS//STIW//ST//OC/NF) +Mueller also commented on media reports regarding FBI agents' +frustration with the volume of'} +cads. For example, articles desctibed complamts of unidentified FBI field agents regarding the lack of informatien in the tippers they received underf +] and how the high volume of tippers necessitated devoting s1gn icant resources to what were described as "dry leads."376 Mueller said that the agents' frustration was similar to that expressed about other sources for the thousands of leads the FRI received after September 11, such as calls from citizens. Mueller stated that he understood the fr ustration associated with expending finite resources on numerous leads unlikely to have a terrorism nexus, but said that his philosophy after September 11 was that "no lead goes unaddressed." Moreover, he stated that frustrations can result fram any counterterrorism program. (S7/NE- +We also interviewed Kenncth Wainstein, the first 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 "gotten 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 {S//NF +Hayden told us tha worthwhile and successful. + +mtelhgence base Hayden also observed that the enemy may nol have been as embedded in the United States.as much as, feared but sa1d that he believes Stellar Wind helped determine this. + +## E. Examples Of Fbi Counterterrorism Cases Involving Stellar Wind Information {S7/7/Nf)} + +As part of our review, we sought to identify specific FBI international terror.iemi~i'nVes\tig_a,tion's in which Stellar Wind information was tised-and to describe the information's specific contributions to the investigations. We agree with FBI officials that this is a difficult task in view of the nature of these investigations, which frequently are predicated on multiple sources of inforfmation. To the extent Stellar Wind tips played a role in an mvesugatlon the tips could be one of several sources of information acquired over time and used by the FBI to pursue the investigation. + +Moreover, the FBI agents and analysts we interviewed during our review could not say that "but for" a Stellar Wind tipper a given investigation would riot have been productive, and they were unable to recall specifically how, if at all, Stellar Wind intelligence may have caused their investigations to take a particular direction. [S7ANEL +-Qur review did not seek to describe Stellar Wind's impact on each FBI +field office, and we recognize that FBI officials and her than those we interviewed rmght have had experlences Wlth +1 reporting was not disseminated to FBI field offices under y contribution the information might have made to investigations FBI personnel we interviewed were familiar with might not have been accounted for in our questions about Stellar Wind and information. {FS//ASTLW/SL//QC/NE}- +In view of these difficulties, we examined several investigations frequently cited in NSA and FBI documents the OIG obtained during this review as examples of Stellar Wind information that contributed to aterterrorism efforts.377 +For these investigations, we examined ECs, FBI Letterhead Memoranda describing the status of investigat activities in specific cases, Counterterrorism Division responses.te OIG +questions about the role-of n specific investigations, in international terrorism prosecutions, and FBI +377 As noted 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. + +- +378 The briefing materials were prepared by the FBI's Communications Exploitation Section (CXS) shortly after aspects of the Stellar Wind program were publicly revealed in-a series of New York Times articles in December 2005. The briefing materials were prepared at the direction of FBI General Counsel Valarie Caproni, who anti'cipated that Director Mueller and Deputy Director Pistole would be called to testify about the program. These briefing materials were intended to help prepare Mueller and Pistole for their testimony. + +The briefing materials include summaries of specific cases relating to Stellar Wind information that were highlighted by the NSA. AFS/STLWA/SH/OC/NE} +bl, b3, bs, b7C, b7E +b7C, b1, b3, b6, b7C, b7E +lted in the FBI initiating investigations of to 1dentfl"y any mvolVement in terrorism. + +In +' +v +. + +was bl, b3, not relatcd'to any 1nv01vement in terrorism. + +However, in one case FBI +b6, b7C, e 1r1d1v1dual was 1n contact w1th addltlonal b7E + +bl, +b3, b6, +b7C, b7E +bl, b3, b7E + +ut who was +,voluritarily +~ D7E +The subject of another of the leads generated by was already under investigation by an FBI fleld office. The +1ead caused the FBI off1ce to convert 1ts prehmmary i 1V1d, al several t mes. and issued Natmnal Securlty Letters +- +' +' +However, the FBI did not develop any +"therelore was unable to stablish that there was a nationwide conspiracy +: +lto provide material support to +"successful dlsruptlon operatio: +during the course of the 1nvest1gat10ns. TS7'7'67'N'F) +bl, b3, b6, b7C, b7E +bl, b3, b6, b7C, b7E +bl, b3, be, b7C, b7E +bl, b3, b6, b7C, b7E +385 FBI documents we reviewed do not indicate how this information was obtained or whether it was derived from Stellar Wind, {FS7/8TEW/7SI770C/NF +e that it could not be verified whethe +(S7T7OCTNF]~ +b1, b3, b6, b7C, b7E +FBI briefing materials state that the FBI first be surveillance of an individual later determmecl to be misidentified +8 Through open bl, b3, source investigation, the FBI obtained the telephon mber of the b6, m1s1dent1f1ecl subject and was granted emergency FISA authority on that b7C, nu_merrIA Selllane as initiated on the telephone believed to be b7E +On_ the FBI employees located at the NSA (Team 10) +submitted a request to the NSA for call chaining analysis and corisideration for 'Stellar Wind "tasking," or content collection. The NSA initiated content collectlon on the erronieous telephone number the same day. + +Comntact aining on the telephone number did notr v contacts with any b1, b3, WIL terronstassomated numbers. Onf it was b6, b7C, +>cl was not using the teleph ne number tasked and b7E +chamed under Stellar Wind authority, e P +alsc CeWU'thorized eelectronic surveillance of the numberf +] +11 +By ongoing physical surveillance confirmed that the telephone number beheved to be assomated- had been misidentified. + +3FE: +: +~ +: +b7C, b7D, b7E +| +be, +- b7C, b7E +bl, b3, b6, b7C, b7E +bl, b3, b6, b1, b3, b6, b7C, b7E +b1, b3, b6, b7C, b7E +bl, b3, b6, b7C, b7D, b7E +According to afy sentation about the FBI's role in Stellar Wind, thd +[ +. + +\tipper "facilitated the FBI's ablllty to locate, initiate phys1cal survelllance and debrieff +@ +in o timely manner." The facts reviewed by the OIG show tha +{failed to b1, b3, b6, result in notification to the FBI of return to the United State but b7C, b7E +that through Stellar Wind information the FBI was able to locate] +obtain suryeillance o- FES,L,LS%LSI/,L@MF) +interviewed in connection with the FIB +bl, b3, bs, b7C, b7E +b3, be, b7C, b7E +bl, b3, b6, b7C, b7E +b6, b7C, b7E +b6, In an undated:s ummary of successes under the Stellar Wind program, bl, b3, bl, b3, b6, b7C, b7E +bl, b3, be, b7C, b7E +the FBI applied for and obtained a FISA order to_ +conduct ele +1ic sur; +ce and a physu:al searchf A +L +bl B +By this time I 1od been in FBI custody for several days.59 +b3, Support: of the FISA apphcatmn the government reported thatfad +| +b6, e also in custody at that time, recently hadge e Zm g b7C +b7E +b1, b3, be, b7C, b7E +b1, b3, be, b7C, +: +, b7E +~ +The NSA recommended that the FBI cite +. + +linvestigation in bnt,fing matenals as an example of Stellar Wind's con -ibution to Tism i fforl.s. The FBI bnefing mate1 1als also state that the Ee'b3' +b7C, b7E +In response to the OIG's request for infformation about the ro: +information 'played in the investigation +_ +the FBI's +'Counterterrorisin Division told us that, based o its searches of +. + +internal FBI databases and discussions with the case agents bl, b3, reporting factored into mveshgatlon _Acco d' 19 to a| +b6, +-declaration the FBI filed inf T p1 -osecution, the + +ipper in b7C, investigation "did not directly lead to any ipformation of evidence b7E +that was used in the prasecution of the case againstf land was not mcorpm ated mlo emy apphcatlon to a court, including the [FISA Court]."398 +b6, b7C +b7E +bl, b3, be6, b7C, b7E +b1, b3, b6, b7C, b7E + +## V. Oig Analysis (U) + +The FBI created th roject to disseminate Stellar Wind bl, information as leads to FBI field offices and assigned the CAU's Team 10 to b3, the NSA to work on Stell'alf Wind full-time for this purpose. We found that b7E +the co-location improved the FBI's knowledge about Stellar Wind operations: +- +and gave the NSA better insight about how FBI field offices investigated Stellar Wind information, We were told these benefits translated to impr ellar Wind report drafting process, and by extension, One of the changes the FBI implemented to attempt to improve the investigation off eads was to make FBI Headquarters-based b1, CAU, instead of the field offices, responsible for issuing National Security b3, Letters (NSL) to obtain subscriber information on tipped telephotrie numbers b7E +and e-mail addresses, This measi initiated in July 2003, was intended to address agent concerns thatfy += +| +jleads did not provide sufficient information to initiate national security investigations, a prerequisite under Justice Department investigative guidelines to issuing NSLs. + +However, we found that the CAU issued the NSLs from the control file, a non-investigative file created in September 2002 to repository forf related communications between FBI +Headquarters and field offices. Issuing the NSLs from a control file instead of an investigative file was contrary to i FBI policy. The FBI finally + +bl, + +i +| project in November 2006. + +b3, b7E + +1 +decision to issue NSLs h that the FBI had +] +control file. concluded i sufficient predication either to connect the NSLs with existing preliminary or full investigations of al Qaeda an iliated groups or to open new preliminary or full investigations in compliance with Justice Department investigative guidelines. + +However, we also concluded that the could have, and should have, opened an investigative file for th n the decision first was made to have FBI Headquarters cads. {FSHFSTEWHSHOEINF) +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 information in international terrorism FISA applications. The change bl, b3, requires the FBI's Team 10 and FBI OGC, in coordination with the b7E +Department's Office of Intelligence (formerly OIPR), to determine whether any facility (telephone number or e-mail address) that appears in a FISA +application also appeared in a Stellar Wind report and, if so, whether the FBI had developed, independent of Stellar Wind, an investigative interest in the facility before it was the subject of a ipper, or whether the facility would have been "inevitably discovered." FISA Court Presiding Judge Kollar "Kotelly imposed this additional scrubbing requirement after being advised of modifications made to Stellar Wind in March 2004 following the Justice Department's revised legal analysis of the program. The FBI and Office of Intelhgence continue to expend significant resources to comply with this scrubbing requirerment. 399 However, we did not find any instances of the requirement causing the FBI not to be able to obtain FISA surveillance coverage on a target. TS/ STEW/SHOC/NET +Our primary focus in this chapter was to assess the general role of Stellar Wind information in FBI investigations and its value to the FBI's. + +overall counterterrorism efforts. + +Similar to the FBI, we had difficulty assessing the specific value of the program to-the FBI's counterterrorism activities, However, based on our interviews of FBI managers and agents and our review of documents, and taking into account the substantial volume of leads the program generated for the FBI, we concluded that although the information produced under the Stellar Wind program had value in some counterterrorism investigations, it played a limited role in the FBI_ s overall counterterrorism efforts. {S/4F +The vast majority of Stellar Wind information the NSA provided the FBI related to telephone numbers and e-mail addresses the NSA identified through meta data analysis as having connections to individuals believed to I +leads told us that most leads were determined not to have +399 Ag 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 PR/TT 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 from the FISA-anthorized bulk meta data collections were disseminated under the Stellar Wind compartment. {FS/H+SFEH--SHFEE +N +400 +Stated another way, the Stellar Wind program generate leads for the FBI 'each month from October 2001 to February 2006, + +## Top Secret + +terrorism, and they did not identify for us any specific cases where leads helped the FBI identify previously unknown subjects involved in terrorism +. + +(although several stated that this did occur). This is not surprising given that the vast majority of leads sent to FBI field offices for investigation concerned telephone numbers and e-mail addresses that the NSA already had determined were at best one or two steps removed from numbers and addresses suspected of being used by individuals believed to be involved in. + +terrorism. {ES/FSTLW//SH/OC/NF) +The FBI's two statistical studies that attempted to assess the: +"significance" of Stellar Wind meta data leads to FBI counterterrorism efforts did not include explicit conclusions on the program's usefulness. The first study found +. + +samples taken fro ol meta data leads the bl, NSA +provided the FBI +from approximately October 2001 to December 2005, b3, or 1.2 percemlma'de "significant" +contributions. The FBI's b7E +second statistical study, which reviewed each| +& +le-mail tippers the NSA provided the FBI from August 2004 through January 2006, identified no examples of "significant" contributions to FBI counterterrorism efforts.401 +The FBI OGC told us that FBI executive management's statements in congressional testimony that the Stellar Wind program had value was based in part on the results of the first study. FSHSTEWHASHOE/NT) +While we believe Stellar Wind's role in FBI cases was limited, assessing the value of the program to the FBI's overall counterterrorism efforts is more complex. Some witnesses commented that an intelligence program's value 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 that the terrorist threat embedded within the country is not as great as once feared. + +Witnesses also suggested that the value of the program should not depend on documented "success stories," but rather on maintaining an intelligence capability to detect potential terrorist activity in the future. + +(FS ST NE) +FBI personnel we interviewed generally were supportive of the Stellar Wind +( +program, calling the information "one tool of many" in +~ +bl, the FBI's anti-terrorism cfforts 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 abouit the foreign individuals allegedly involved in terrorism with whom domestic telephorie numbers and e-mail addresses were in contact. + +Yet, these FBI employees also believed the p0551b111ty that such contacts related - +to terrorism made investigating thee tips worthwhile. Some FBI employees also.cited the FBIs increased coopera'mon with the' NSA on international terl orlsm matters asa 51de benefit of the Stellar Wind 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 FBI's communications analysis. + +Mueller also stated that to the extent such information can be gathered and used legally it must be exploited and that he "would not d1s:mlss the potency of a program based on the percentage of hits." +- +: +We sought to look beyond these. comments of: gcneral support for Stellar Wind to specific, concrete examples of the program's contributions that also illustrated the role Stellar Wind information could play. We therefore examined five cases frequently cited i in documents we reviewed +: +i al 1nvest1gat1on that led to arrest and conviction, it was an tipper that led to the national security investigation that preceded the criminal prosecution. {FS/STEWA/SLL/OC/NE] +The final investigation we exammed-dld not appear to result directly from Stellar Wind information: The NSA and the FBI at times have b1, b3, Clted-case as an example of the cortributions of Stellar Wind to b6,b7C, b7E + +## Prosecution 'Indicatd Thatll Couinterterrorism Investigations. An Fbl Declaration Filed Infl + +- +Mdredvr', the FBI"ofld us in.response to our that Stellar Wind information did not "factor 'i'n'toh +| +investigation." However, we concluded that Stellar Wind may have played some indirect rolMMMR]becoming the subject of a Full Investigation by the FBI. Our review of documents indicated that investigatior, which appears t0 have been advanCedifiby's.tcjllar'Win& +reporting, might have caused the FBI to reopen its investigation We were unable to describe with the same certainty as i +: +investigation the extent of Stellar Wind's contribution to investigation, in part because of differing assessments in the FBL' +documents regarding the role of Stellar Wind this matter. + +In short, we found that Stellar Wind generally has played a limited role in FBI counterterrorism investigations, but that the evidence shows there are cases where Stellar Wind information had value. + +For example, in sotne of the cases we examined Stellar Wind information caused the EBI to take action that led to useful investigative results. However, in others the connection between the Stellar Wind information and the FBI's investigative actions was more difficult to discern.. (SLINFY +and in this chapter, Stellar Wind's bulk As discussed in Chapter Five +' +ere transitioned to FISA authority and are meta data collection activities v ongoing. The FBI, under the +| project (the successor t requir,.els field offices to conduct; at inimum, threat assessments on telephone numbers and e-mail addresses the NSA derives from this FISA-authorized collection that the FBI is not already aware of, including aumbers and addresses one or two steps removed from direct contacts with individuals involved in terrorism. + +In view of our firidings about the Stellar Wind program's-contribution to the FBI's counterterrorism efforts, we believe that the FBI should regularly assess the impact leads have on FBI field offices and whether limited FBI resources should be used to investigate all of them. {FS//STLW//SL/ LQC/NE) +Another consequence of the Stellar Wind program and the FBI's approach to assigning leads was that many threat assessments were conducted 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. 402 Thege assessments also caused the FBI to-collect and retain a significant amourit of personal information. + +about the users of tipped telephone numbers: and e-mail addresses. In addition to an individual's name and home address, such information could include where the person worked, records of foreign travel, and the identity +- of family members. + +The results of these threat: assessments and the information that was collected. generally were reported in communications to FBI IIcadquarters and uploaded into FBI databases. + +The FBI's collection of U.S. person information in this manner is ongoing under the NSA's FISA-authorized bulk meta data collection. + +To the extent leads derived from this program generate results similar to those under Stellar Wind, the FBI will continue to collect and retain a significant amount of information about individuals in the United States, including U.S. persons, that do not have a nexus to terrorism or represent a threat to national security. ES/A/STLW //ST//OC/NE) +We recommend that as part of th +. project, the Justice Department's National Security Division +(NSD), working with the FBI, should collect information about the quant1ty of telephone numbers and e-mail addresses disseminated to FBI field offices that are assigned as Action leads and that require offices to coniduct threat assessments. The information compiled should include whether individuals identified in threat assessments are U.S. or non-U.S. persons and whether the threat assessments led to the opening of preliminary or full national security inivestigations. With respect to threat assessments that conclude that users of tipped telephone numbers or e-mail addresses are not involved in terrorism and are not threats to national security, the Justice Department should take steps to track the quantity and nature of the U. S. person information collected and how the FBI retains and utilizes this information. + +This will enable the Justice Department and entities with oversight responslblhtles, including the OIG and congressmnal committees, to assess the impact this intelligence program has on the privacy interests of U.S. + +persons and to consider whether, and for how long, such information should be retained. (5!187L7/-S-}7'~/-67"fi'1? ) +We also recommend that, consistent with NSD's current oversight activities and as part of its periodic reviews of national security investigations at FBI Headauarters and field offices, NSD should review a b1, b3, representative sampling +| leads to those offices. + +For each lead b7E +examined, NSD should assess FBI compliance with applicable legal requirements in the use of the lead and in any ensuing investigations, particularly with the requirements governing the collection and use of U.S. + +person information, {TS//SI//OC/NE) +Inn sum, we agree that it is difficult to assess or gquantify the effectiveness of a particular intelligence program. + +However, based on the interviews we conducted and documents we reviewed, we found that Stellar Wind information generally played a limited role in the FBI's counterterrorism efforts; but that the information had value in some cases. + +In addition, some witnesses said the program provides an "early warning system" to allow the Intelligence Community to detect potential terrorist attacks, even if the system has not specifically uncovered evidence of preparations for such an attack. Moreover, other OIGs in the Intelligence Community are reviewing their agency's involvernent with the program and the results of those reviews, analyzed together, will provide a more comprehensive picture of the program's overall usefulness. + +(TS//STLW//SL// QC/NE) +Finally, because the bulk meta data aspect of the Stellar Wind program continues under FISA authority, we recommend that the NSD take steps to gather information on the continuing operations of the program, including the use and handling of vast amounts of information on U.S. + +persons and the effectiveness of the program in FBI counterterrorism investigations, 4FS/ASTEW//SHHOCHE) + +## Chapter Seven Discovery Issues Related To Stellar Wind Information + +In this chapter we discuss the government's statutory and judicial discovery obligations in international terrorism cases relating to Stellar Wind-derived information. Under the Stellar Wind program, the federal government-collected vast amounts of information, including the content of communications and meta data about telephone and e-mail ommu ons i U.S. + +citizens and non-U.S. citizen Riiles of Criminal Procedure and applicable case law for the governmerit to disclose certain information to the defendant. + +This obligation created a tension between the need to protect the 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 Depariment of Justic,e:attempt?ed. to resolve this tension and meet its discovery obligations to criminal defendants.403 +(U) + +## L. Relevant Law (U) + +The government's obligation to disclose certain statements made by a defendant and to disclose other information concerning a defendant in a criminal proceeding comes primarily from two sources: +Federal Rule of Criminal Procedure 16 and the U.S. Supreme Court case of Brady v. + +Maryland, 373 U.S. 83 (1963). + +(U) +Federal Rule of Criminal Procedure 16(a)(1)(B)i) requires the government 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 exists[.]" +Rule 16(a)(1)(E) provides that, upon a defendant's request, the government must allow a defendant to inspect and copy papers, documents, data, and other materials "if the item is within the government's possession, custody, or control" and the item is material to preparing the defense; the government intends touse the item in its case-in-chief at trial; +or the item was obtained from or belongs to the defendant. + +(U) +Under Rule 16, a defendant's statements carry a "near presumption of relevance," and "the production of a defendant's statements has become practxcally g matter of right even without a showing of materiality." United States v. Yunis, 867 F.2d 617, 621-22, 625 & .10 (D.C. Circuit 1989).40 +(v) +Disclosure of a defendant's statements is usually made by the government after receiving a request pursuant to Rule 16. + +However, even without making a Rule 16 request, a defendant has an independent right to discovery of his statements and certain other relevant information under Brady: v. Maryland 373 U.S. 83 (1963), Brady requires the government to disclose evidence in its possession favorable to the defendant and matenal to either guilt of punishment. Material evidence must be disclosed if it is exculpatory or if it could be used to impeach a government witness. + +(U) +However, according to the memorandum, when production of the defendant's statements or other information would reveal classified information, the government may assert a national security privilege, sometimes known as the state secrets privilege.406 +If the government asserts a colorable claim in a legal proceeding that classified information is privileged, the defendant must show that the information is not only relevant but material. + +If the defendant can show materiality, some courts balance the defendant's need for disclosure against the government's +~substantial interest in protecting sources and methods: assoc1ated with the sensitive information. See United States v. Sarkissian, 841 F.2d 959, 965 +(9th Cir. 1988); United States v. Smith, 781 F.2d 1102, 1180 (4 Cir. 1985) +(eni banc). + +(U) +The government can dlso invoke the Classified Information Procedures Act (CIPA), 18 U.5.C. App. 3, to protect classified information in federal prosecutions. + +CIPA does not expand or limit a defendant's right to dlsoovery under Rule 16; rather, CIPA allows & court; "upon a sufficient showing" t authorize the government to delete specified items of classified 1nformat1on from otherwise discoverable documents, substitute a summary of the. + +information, or stipulate to relevant facts that the classified information would tend to prove. + +(U) +As detailed below, after aspects of the Stellar Wind program were. + +disclosed in The New York Times and confirmed by the President in December 2005, the Justice Department invoked -CIPA to,.prevent d1sclosure of the program and any: -roram_-'denv d infor: +slrel0)(1), +(B '3) +, + +## Il. Cases Raise Quesjtions About Government's Compliance With Discovery Obligations (U} + +The tension between the highly classfl"led nature of the Stellar Wind program and th 'ove' +: +nt's +1scov +: +ations in.criminal cases b1, b3, +1n1t1311y arose 1 +(b)(3) - - +- +b7E +bl, b3, b6, b7C, b7E +| +information collected under Stellar Wind would be discoverable and, more +:Uenera]ly, how the Stellar Wind collections might be treated in view of the gove1 nment's dlSCOVCry obligations in eriminal prosecutions. + +Baker said he raised these issues with Attorney General Ashcroft, FBI +Director Mueller, and other Just1ce Department, FBI, and NSA officials. + +b1, Baker stated:that fhe clided that a determmatlon should first be made b3, whether thel e "f [ +Obtained through Stellar Wind also b6, were captured th1 euch FISA and thi efore could be produced. Baker said it b7C, turned out +: +- + had been intercepted under FISA and b7E +colild be produced under that author1ty rather than as a result of Stellar Wind collectioris. + +Baker told the OIG that he was relieved by this outtome, but continued to be concerried about future cases. + +bl, b3, b6, b7C +b7E +b1, b3, b6, b7C, b7E + +. +| Yooorally reecommended to Ashcroft that the +t disclose the Stellar Wind program intercepts to the +b1, b3, b6, b7C, b7E +bl, b3, b6, b7C, b7E +b6, b7C, b7E +. + +Inanothet internal Justice Department review of his actions, Yoo has acknowledged that he is not well versed in criminal law. + +During an interview with the Department's Office of Professional Responsibility (OPR) +in connecticn with its investigation concerning his legal opinions in support of a. deetairiee interrogation program, Yoo stated that "criminal prosecution process in the Department was not my specialty," and "criminal law was not my area.*15 {FS{+SH-OC/NE)- + +## I, Criminal Division Examines Discovery Issues (U) + +F'ollowin : (bx?)f'" | the Justice Department's Criminal Division was tasked with developing procedures for handling Rule 16 +bl b3. b6 +disclosure issues because the issues fell within its area of expertise. Asa b7C b7E +vrc_sult_,,in Patrick Rowan, a senior counsel in the Criminal +' +Division, was read into the program to deal with Stellar Wind-related discovery issues, Rowan's supervisor, Criminal Division Assistant Attorne y General Christopher Wray, was also read into the program at the same time. + +b1, b3, b6, b7C, b7E +to detainee interrogations. + +Yoo drafted legal opinions for this program while in the Office of Legal Counsel. + +However, as discussed in Chapter Four, in contrast with the Stellar Wind program at least four other OLC attorneys assisted Yoo with drafting the legal memoranda., Yoo was also able to consult with Criminal Division attorneys and the client agency on this matter, TISTFSTHWSH-AOCLNE). + +Wray and Rowan were the first Department attorneys with Criminal Division-level responsibility for terrorism prosecutions to be read into the program.ES/H +L +FSHH +; +Wray told the OIG that after his and Rowan's read-in, they "were kind of left on our own." He said that no one directed him or Rowan to continue studying the Rule 16 issues or the government's Brady obligations in connection with international terrorism prosecutions, nor did anyone tell them to develop any judgments or opinions on the subject, +(U) +e point after his read-in he may have read randum on the Department's discovery b1, b3, thatat som obligations in +: +and he instructed Rowan to review the b6, b7C, memorandum. + +Rowan told us that he was familiar with Yoo's b7E +memorandum, but stated that he could not recall whether the purpose of Yoo's memorandum was to lay out in general the pertinent legal issues or to. + +in particular was to be handled. Rowan all having any problems with the conclusions Yoo +) +document how told s that he did not rec reached. (TS77STEW/7 + +## A. The "Informal Process" For Treating Discovery Issues In International Terrorism Cases (U) + +During his OIG interview, Rowan described the processes at the Department prior to the December 2005 disclosure of aspects of the Stellar Wind program in The New York Times to address discovery obligations with respect to Stellar Wind-derived information. + +He said that the NSA was generally aware of the Justice Department's international terrorism criminal cases, at least in part due to NSA's ongoing contacts with Patrick Philbin atid others in the Department. According to Rowa, the NSA's general awareness of the Department's international terrorism docket amounted to an "informal process" for spotting cases that may present discovery issues. + +Rowan 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 for 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. Rowan said he was confident that if Brady information 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. AESASTEW/18t/1OCTNF) +In addition to these routine communications between Department prosecutors and the NSA in criminal prosecutions, Rowan described other measures that were in place to keep Stellar Wind-derived information out of the criminal prosecution process. He stated that the FBI had "walled off" +any evidence it collected from inclusionif.criminal cases by tipping out Stellar Wind-derived information under (T jith a caveat that the bi.b3, informiation in the tipper was 'f'vf01'-'1e'ad~p'urposesonly." Rowan noted. that b7E +OIPR also had in place a scrubbing process. to delete program-derived. + +information from FISA applications, Rowan expressed confidence that these mechanisms c_nsgred that no program information was used in international terrorism prosecutions.*16 Finally, Rowan stated that the FBL +is "very quick to get FISAs up," thereby minimizing the likelihood that the +- +NSA's Stellar Wind database would be the sole repository of Brady material. + +TS/ ISTIW /ST OCHNFY- + +## | Memorandum Analyz By The Stellar Wind Program ~{T577St1 33 + +At the direction of Assistant Attorney General memorialized his research regarding these discov +7 +owan saidhe wc on the worandum largely alone, +"consulting occasionally with Wray. Rowan said it was very difficult to work on the matter because of the secrecy surrounding the program and the other demands of his job.*17 + +## Covery Issues Raised + + +Wray, Rowan issuesin a b7E +Attorneys Manual (USAM) +For cases in which the Intelligence Commurity Had no active involvement in the criminal investigation, the USAM stated that there are two circumstances in which the prosecutor must conduct a +"suitable search" of Intelligence Community files: +(1) where the prosecutor has "direct or reliable knowledge" that the Intelligence Community bl b3 b6 +possesses potential Brady or other discovery material; or, (2) in the absence of such knowledge, where "there nonetheless exists any rehable indication +.suggestmu" that the Intelligence Community possesses such material, USAM, Criminal Resources Manual 2052 (2002)., The USAM stated that, as a.general tule, a prosecutor should not seck access to Intelligence Community files unless there is an affirmative obligation to de so. However, it noted that certain types of cases, including terrorism prosecutions, fall outside this general rule, In such cases, the USAM advised that the prosecutor should conduct a "prudential search." +Id. + +Rowan wrote that the practice in several sections within the Criminal Division was to "generally go beyond both the lega] obligations outlined [in his'memorandum] and the general rule outlined in the USAM, initiating searches out of prudence, rather than a legal obligation." For instance, Rowan reported that the practice of the Criminal Division's ounterespionage Section (CES) was to search Intelligence Community files in'slmoSt evelfy ca_se, even in instances. + +in which the Intellige ce Commumty +, +: +| +| Dion stated 'that stich searc es are cofiufimses in WmfihTfiemTMTlgellce collection concerning the defendant as "suggested by the facts of the matter." He added that the searches were requested for a variety of TEasons, including for purposes of meeting discovery obligations. + +Dion said that searches also were requested to determine whether the defendant has a "relationship" with an intelligence agency. + +He noted that CES does not request prudential searches as a matter of course:to avoid makmg spurious requests. ~S/LMNE)L +' +._Dion said CES was a proponent sition that hne prosecutors with Whom CES co-prosecutes cases should have the +'same lmowledge as CES concerning the "national security equltles" involved in each case. + +Dion said this arrangement also allows for the AUSA, who is often the prosecutor most familiar with the case and the jurisdictional practices, to review any Intelligence Community material for Riile 16 and Brady purposes. + +Dion acknowledged the limitations to this arrangement concerning strictly cornpartmented programs such as Stellar Wind, where the NSA understandably would. be reluctant to read in line prosecuitors for the limited purpose of screening defense discovery requests, (FS/SFEWEHOE/NF +was for the CES attorney to use the provisions of CIPA to prevent disclosure of 'sensitive material. Rowan noted that other sections within the Criminal Division also relied on CIPA to protect Intelligence Community files found +-during searches. + +/SILLQCINE +Pr 111c1pa1 Deputy Assistant AtLomey Gcne1 al Steve Bradbu became the acting head of OLC. + +Bradbury told us that he retalled having some discussion with Rowan about how d1scovery matters should be handled in connection with the Stellar Wind program. Bradbury said that John +'Eisenberg, later a Deputy in OLC, also may have discussed the matter with Rowan. Bradbury stated that he did not believe that OLC followed up on Rowan s request that it contmue researching these issues. + +Eisenberg told us that he discussed the Rule 16 issue with Rowan at some point, but did not recall Whether the: discussed the Br ady issue. He recalled dlscussmg Rty o)1) (0)3) +memorandum with Rowan and +: +artment took the position that the Yoo Was correct at least Wlth respect to Yoo's legal analysis 111- +When we showed Eisenberg a copy of Rowan? + +. + +memorandum, Eisenberg stated that he had not pl'eVIOLIS].y seen- 1t Eisenberg told us that OLC would not typlcally 'be responsible for addressing the discovery issues presented in Rowan's memorandum and that he was not aware of any OLC opinion on the subject other than Yoo's memoraiidum. Eisenbergalso said he was not aware of any formal procedures for handling Rule 16 disclosure requests or the government's: +affirmative Brady obligations other than the ex parte in camera motions practice pursued by the National Security Division, discussed below. + +CES Chief Dion agreed that OLC would not be the ap'propriate entity to review discovery procedures in the context of Stellar Wind, in part because OLC attorneys generally do not have criminal htIgatmn 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 coerdination 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 guilty_plea_ would have on the government's Brady obligations. + +Wray also told us thet there was no organized Departmental effort to establish formal procedures for 1'eviewing,interna'tional terrorism prosecutions to comply with Rule 16 disclosure requests and Brady obligations: +He said "the thinking was" that the Rowan memorandum was the "first step" toward devisirig "some kind of systematized process" for such reviews. However, we found no indication that OLC followed uip-on Rowan's request to further study these discovery issueswith any kind of written product. (FS7S ity +' + +## Iv. Yvuse Of The Classified Information Procedures Act (Cipa) To Respond To Discovery Requests (U) + +After publication of The New York Times articles in December 2005, the Justice Department received numerous discovery requests in connection with inte"rnational terrorism prose_cutions throughout the country. + +After these articles, additional officials in the Criminal Division were read into the Stellar Wind progtam, including the new Assistant Attorney General Alice Fisher and other senior officials, both to assist with the Criminal Division's investigation into the leak of information to The New York Times and to handle the discovery requests following the public confirmation of the program by the President and other-Administration officials in December +2005.423 After the National Security Division was created in September +2006, it assumed much of the responsibility for handling the responses to discovery requests. {TS77/3TEW/SHAOCNEL +Typically, the defense motions sought to compel the government to produce information concerning a defendant that had been derived from the +"Terrorist Surveillance Program," the term sometimes used by the government to refer to what the President confirmed after publication of The New York Times articles. The government responded to the discovery +) +requests by filing ex parte in camera responses requesting to "delete items" +from material to be produced in discovery pursuant to CIPA. AS//NF)~ +In the following sections we provide a brief overview of CIPA and its use in international terrorism cases potentially involving Stellar Wind-derived intelligence. {PS1+STEW/SHAOCNE + +## A. Overview Of Cipa (U) + +The Classified Information Procedures Act, +18 U.S.C. App. 3, was enacted in 1980 to provide procedures for protecting classified information in federal criminal prosecutions. When a party to a criminal proceeding notifies the court that classified information will be used in the course of the proceeding, CIPA requires the court to initiate procedures to "determine the use, relevance or admissibility of the classified information that would otherwise be made during the trial or pretrial proceeding." +18 U.S.C. App. 3 + 6(a). Where the government holds the classified information, it may bring the matter before the court ex parte but it also must provide notice to the defense that classified information is at issue. + +Id. at 6(b)(1). + +(U) +Protective procedures generally are established through a CIPA +hearing with both parties present. The hearing may be conducted in camera if the government certifies that an in camera hearing is necessary to protect the classified information. + +Id. at 6(a). Typically, the government seeks an order to protect against the disclosure of any classified information to the defense. The government may also seek to withhold production of the classified information in one of three ways: +(1) deletion of the classified items from the material disclosed to the defendant, (2) summarization of the classified information, or (3) admission of certain facts that the classified information would tend to prove. + +Id. at 4. + +Based on the OIG's review of CIPA filings related to the Stellar Wind program, the government has only used option 1 (deleting classified items from material to be 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 ex parte showing to the court. + +To do so the government must subrit "an affidavit of the Attorney General certifying that disclosure of classified information would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information." +Id. at' 6(c](9) +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 (4t Cir. 2004). + +(U) + +## B. Use Of Cipa In International Terrorism Prosecutions Alleged Ito L[Nvolve Ste]Llan' Wmd Denved Information + +We 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 without the involvement of the line prosecutors in the U.S. Attorney's Offices who handled the underlym prosecutlons but who were not read into the iri September 2008, told us tha The scope and nature of the defense motions initiating the CIPA +litigation varied, depending on the procedural posture of the case. + +For instance, some defense motions sought to compel discovery of NSA +surveillance information, while others sought to suppress all government evidence and, in the altcrnatlve have the government's case dlSIDlSSBd on +'the theory that 1llegal electromc surveillance caused the government to on in the first iristance.. + +: +Regardless of the varying procedural posture of the cases and the scope.and nature of the defense' motions, the governiment responses we examined were fairly uniform, consmtmg of a motion to delete items from +:d1scovery, a legal memorandum in support of the motion, declarations from senior FBI and NSA off1c1als and a proposed order. + +The government's CIPA submissions asserted that the information at +1ssue 1n the d1scovery 11t1gat1on was classified and subject to the nat1onal The government's responses we reviewed uniformly stated that information in the NSA's intelligence reports had not been or would not be used as evidence, and that there was no causal connection between the information in the reports and any evidence used or to be used at trial, or was too attenuated from the evidence to be discoverable. The government argued that because the facts concerning the NSA's reporting would not aid the defense, the court need not explore the sources and methods used to acquire the information. The submissions also argued that the information collected by the NSA was not included in the government's FISA application, and therefore was too attenuated from the trial evidence to merit a review of the means by which the intelligence information was gathered. + +The goverriment asserted that the "causal connection" between discovery of the: +derivative evidence and the alleged illegal search "may have become so important to note thai th + +## . Government Arguments In Specific Cases (U) + +~ +In this section we describell] +| |cases that illustrate the arguments made by the government in CIPA litigation with respect to defendant's quests for discovery of Stellar Wind-derived information. + +b1, b3, b6, + +## V., Oig Analysis (U) + +We found that the Department made little effort to understand and comply with its discovery obligations in connection with Stellar Wind=derived information for the first several years of the program. The Dgpartm_cnt',slimited initial effort was also hampered by the limited number of attorneys who were read into the program. As a result, OLC attorney John Yoo alone initially analyzed the government's discovery obligations in one early case, and he produced a legal analysis that was based on an incorrect understanding of the facts of the case to which it applied. When other attorneys from the Department i e o read into the program Mue +. + +. + +at, the Department eventually took steps toaddressfi +0 +0 +| +lits discovery obligations. However, in our view, those steps are not complete and do not fully ensure that the government has met its discovery obligations regarding information obtained through the Stellar Wind program. + +' +' +: +As described in this chapter, in 2002 the Department first recognized that the Stellar Wind program could have implications for discovery obligations in terrorism cases. OIPR Counsel Baker raised with Department +~and FBL officials the question of how the government would meet its discovery obligations regarding Stellar Wind information. + +Despite awareness. of this-issue, the Department took no action at this time to bl b3 +ensure that it was in compliance with Rule 16 or Brady with respect to b6' +' +Stellar Wind-derived information. We believe that at this point senior b7'C +D,epai;tment officials. were on notice that, at a minimum, the discovery.i b7E +merited attentio eT. + +Ho concrete action was taken until eark in the-context of] +when the Department had to address how to handle Stellar Wind information that was not also obtained under bl, b3, b6, b7C, b7E +eiror in Yoo's legal analysis may have resulted in part from the failure to subject his memorandum to typical OLC and Department review and serutiny. Because other Department attorneys were not read into the Stellar Wind program, the risk that the Department would produce a bl, b3, factually flawed and inadequate 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 +carly phase of the Stellar Wind program hampered its legal analysis of important issues related to the program. We believe that Yoo's{ +)8) +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 + +## ~With His Memorandum, Rowan Examined By Olc. + +. + +other than in informal discussions with Rowan concerning Yoo emorandum, OLC did not further examine these issues or bl, follow up on Rowan's recommendation. + +While we recognize that OLC was b3, not responsible for developing litigative strategy on this issue, we believe bs, that OLC or another appropriate Department component should have b7C, provided guidance on this important legal issue: (ESL/STIW//SI/JOC/NF) + b7E + +## We Recommend That The Department Condu + +that still remain unresolved he legal ramifications of a guilty plea on the government's disclosure obligations under Rule 16 and in p_articular Brady. We believe the Department should carefully consider whether it must re-examine past cases to see whether potentially discoverable but undisclosed Rule 16 or Brady material was collected by the NSA, and take appropriate steps:to ensure that it has complied with its discovery obligations in such cases. {PS/SHNF +However, the Departmernt's handling of these motions did not require the Departinent to identify 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 cases, 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. + +(IS//STLW +/[ /SL/ LOC +/NF) + +## Chapter Eight Public Statements About The Surveillance Program (U) + +This chapter examines Attorney General Alberto Gonzales's testimony and public statements related to the Stellar Wind program. Aspects of this program were first disclosed publicly in a series of articles in The New York Times in December 2005. In response, the President publicly confirmed a portion of the Stellar Wind program - the interception of the content of international communications of people reasonably believed to have links to al Qaeda and related organizations. Subsequently, Attorney Gereral Gonzales was questioned about the program in two hearings before the Senate Judiciary Committee in February 2006 and July 2007. {S/NE) +In between those two hearings, former Deputy Attorney General James Comey testified before the Senate Judiciary Committee about the dispute between the Department and the White House concerning the program. Gonzales's and Comey's differing congressional testimony led to allegations that Gonzales had made misleading statements to Congress about the dispute and the program itself.434 +(U) +In this chapter, we examine whether Attorney Gereral Gonzales made: +false, inaccurate, or misleading statements related to the Stellar Wind program. (U//FSHO) + +## I. Summary Of The Dispute About 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, informally referred to as "baskets." Basket 1 related to the collection of e-mail and telephone content. + +Initially, the Stellar Wind program collected e-mail 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. + +this chapter, we focus on his February 2006 and July 2007 testimony in which he discussed the events of March 2004. + +(U) +Basket 2 involved bulk collection of telephony meta data, and basket 3 +involved bulk collection of e-mail meta data. + +(TS77STEWT7 +o7 +These collectioris were authorized by a Presidential Authorization that was re-issued at approximately 30 to 45-day intervals. Each Authorization was certified as to form and legality by the Attorney General. The Attorney General's certifications were initially supported by legal opinions from OLC +attorney John Yoo affirming the legality of the program. + +(TS L/STIW [ /SL/ fOC/NF) +As discussed in Chapter Four, after Jack Goldsrmith was confirmed as Assistant Attorney General for OLC in October 2003, he, along with Associate Deputy Attorney General Patrick Philbin, conducted an analysis of the legal basis:underlying each basket in the Stellar Wind program. Asa result +1is review, he, Philbin, and recently confirmed Deputy Attorney End 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 that the Department could not recertify the program. This dispute culminated in the unsuccessful attempt by then-White House Counsel Gonzales and White House Chief of Staff Andrew Card to get Attorney General Ashcroft to overrule Comey and recertify the program while he was in the hospital. When Ashcroft refused to certify the program and said that Comey was acting as the Attorney Gerneral, not him, the President reauthorized the program without the Attorney General's certification. Instead Gonzales, as White House Counsel, recertified the program. "FS/FASHNF +After the White House's actions to continue the program without Justice Department certifieation, Deputy Attorney General Comey, FBI +DifecthMlj-l?flfel' and many other sernior 'D'epartmentxofficials considered + +## Ii. The New York Times Articles And President Bush's Confirmation Regarding Nsa Activities (U) + +In 2004, aspects of the Stellar Wind program were disclosed to two reporters for The New York Times. + +The reporters, James Risen and Eric Lichtblau, sought to publish an article about the program in late 2004. + +However, after a series of meetings with Administration officials who argued that publication of the story would harm the national security, The New York Times agreed to delay publishing the story. {S//NE}. + +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."#3% +(U) +The first article, on December 16, 2005, was entitled, "Bush Lets U.S. + +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 described in broad terms the content collection aspect of the NSA +program (basket 1), stating that according to officials the NSA has +"monitored the international telephone calls of hundreds, perhaps +'thousands, of people inside the United States without warrants over the past three years in an effort to track possible 'dirty numbers' linked to al Qaeda." The article stated that the NSA continued to seek warrants to motiitor purely domestic communications {FSHSTEWFSHAOS/ NP - +The article asserted that "reservations about aspects of the program" +had also been expressed by Senator Jay Rockefeller (the Vice Chair of the Senate Select Committee on Intelligence) and a judge who presided over the FISA Court. The article added, "Some of the questions about the [NSA's] +new powers led the administration to temporarily suspend the operation last year 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." +However, the article incorrectly tied this suspension of the program to Judge Colleen Kollar-Kotelly's concerns that information gained from the program was also being used to seek FISA orders, rather than to the March 2004 +dispute between Department officials and the White House about the legality of aspects of the program. ATS /A SH-NF +On December 17, 2005, the day after The New York Times published the first article, President Bush publicly acknowledged the portion of the NSA program that was described in the article. + +President Bush described in broad terms these NSA 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 Constitution, to intercept the international +- communications 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 our homeland. During each assessment, previous activities under the authorization are reviewed. The review includes approval by our nation's top legal officials, including the Attorney General and the Counsel to the President. + +I have reauthorized the program more than 30 times: +since the September 11th attacks, and I intend to do so-for as longas our nation faces a continuing threat from al Qaeda and related groups.*36 +(U) + +## Iii. Other Administration Statements (U) + +On January 19, 2006, the Justice Department issued a document, informally referred to as a "White Paper," entitled "Legal Authorities Supporting the Activities of the National Security Agency Described by the President." The 42-page document addressed in an unclassified form the. + +legal basis for the collection activities that were described 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 acknowledged that "he has authorized the NSA to intercept international communications into and out of the United States of persons linked to al Qaeda or other related 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 Avithorization 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 military force, pursuant to the President's Article II Commander-in-Chief powers. + +The White Paper also argued that the NSA's activities were consistent with FISA, as confirmed and supplemented by the AUMF. + +F5 H-SHHDNH +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. + +37 {SHNF" +' +The following day, on January 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 program. + +(U) +In the speech, President Bush described the program as the interception "of certain communications emanating between somebody inside the United States and outside the United States; and one of the numbers would be reasonably suspected to be an al Qaeda link or affiliate." +(U) +On January 24, 2006, Attorney General Gonzales delivered a speech at the Georgetown University Law Center which, according to his prepared remarks, began by stating that his remarks "speak only to those activities confirmed publicly by the President, and not to purported activities described in press reports." Gonzales referred to the program throughout his speech as either the "terrorist surveillance program" or "the NSA's terrorist surveillance program." +(U) + +## Iv. Testimony And Other Statements (U) + +After the New York Times articles disclosed aspects of the NSA +program, members of Congress expressed concern that the President had exceeded his autherity by authorizing 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 NSA's surveillance activities. We describe in the next sections his testimony and other statements he made about the NSA's activities, as well as testimony by former Deputy Attorney General Comey before the Senate Judiciary Committee on May 15, 2007. + +- (S +SN +- +/20/92730 /0977. + +(U) + +## A. G@Nzales'-S February 6, 2006, Senate Judiciary Committee Testimony (U} + +In his operiing s'tatement before the Senate Judiciary Committee ori February 6, 2006, Gonzales began by saying that his testir'nony would necessarily be limited: +Before going any further, I'should make clear what I can discuiss today. I am here to explain the Department's assessment 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 those facts the President has publicly confirmed - nothing more. Many operational details of our intelligence activities remain classified and unknown to our enemy - and it is vital that they remain so. + +) +The questioning of Gonzales at this hearing focused primarily on the nature of the NSA surveillance activity and the legal basis for it.**% Senator Charles Schumer asked Gonzales specifically about accounts of a +'disagreement within the Justice Department over the NSA program:. + +SEN. SCHUMER: +But it's not just Republican senators who seriously 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 I indicated, this program implicates very difficult issues. The war on terror has generated several issues that are very, very complicated. + +SEN, SCHUMER: +Understood. + +ATTY GEN. GONZALES: +Lawyers disagree. + +SEN. SCHUMER: +I concede all those points. + +Let me ask you about some specific reports. + +It's been reported by multiple news outlets that the former number two man in the Justice Department the premier terrorism prosecutor, Jim Comey, expressed grave reservations about the NSA program; and at least once refused to give it his blessing. + +Is that true? + +ATTY GEN. GONZALES: +Senator, here's a response that I feel that I can give with respect to recent speculation or stories about disagreements. There has not been any ser ious disagreement, 1ncludmg and I think this is accurate - there's not been any serious disagreement about the program that the President has confirmed. + +There have been disagreements 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. + +But there was some dissent within the administration, and Jim Comey did express at some point - that's all I asked you - some reservation. + +ATTY GEN. GONZALES: The point I want to make is that, to my knowledge none of the reservations dealt with the program that we're talking about today. They dealt with operational capabilities that we're not talking about today. + +SEN. SCHUMER: +I want to ask you again aboutI'm just - we have limited time. + +ATTY GEN. GONZALES: Yes, sir. + +SEN ,SCHUMER: +It's also been reported that the head of the Office of Legal 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, I think we're - this is - +ATTY 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. + +"SEN. SCHUMER: +But you are telling us that none of these people expressed any reservations about the ultimate program. + +Is that right? + +ATTY GEN. GONZALES: 'Senator, I want to be very careful here, because, of course, I'm here only testifying about what the President has confirmed. And with respect to what the President has confirmed, I believe +- I do not believe that these DOJ officials that you're identifying had concerns about this program. + +(U) +Throughout the hearing, other Senators asked Gonzales questions relating to various-aspects 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 Gonzalessometimes suggested that the N SA's activities under the program were limited to what the President had confirmed. + +In one exchange with Senator Leahy, for example, Gonzales suggested that the electronic surveillance activities the President had publicly confirmed were the only activities the President had authorized to be conducted. Specifically, in response to a series of questions from Senator Leahy regarding what activities beyond warrantless electronic surveillance Gonzales would deem legal under the Authorization for the Use of Military Force, Gonzales stated, Sir, I have tried to outline for you and the committee what the President has authorized, and that is all that he has authorized. + +. .. 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 getinto a discussion, Senator, about hypotheticals, +439 {S//NE} +responses to questions that he had answered during his February 6 hearing and to clarify certain responses, Gonzales wrote that he confined his letter and testimony to the specific NSA activities that have been publicly confirmed by the President. Those activities invelve 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 affiliated terrorist organization (hereinafter, the "Terrorist Surveillance Program"). + +One response Gonzales sought to clarify was this response to Senator Leahy. + +Gonzales wrote: +First, as | 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. + +[ did not and could not address operational aspects of the Program or any other classified intelligence activities. + +So, for example, when 1 testified in response to questions from Senator Leahy, "Sir, I have tried to outline 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 In response to Senator Sam Brownback's question about whether the FISA application process would include "even these sort of operations we've read about data mining operations? Would that iniclude those sorts. of operations, or are those totally a separate type of field?" +(U) +Gonzales responded: +T'm not here to talk about that. Again, let me just caution everyone that you need to read these stories with caution, There is a lot of mumbling - I mean, mixing and mangling of activities that are totally unrelated to what the President has authorized under the terrorist surveillance program, and so I'm uncomfortable talking about other kinds of operations that might - that are unrelated to the terrorist surveillance program. + +() + +## B. Comey's May 15, 2007, Senate Judiciary Committee 'Testimony (U) + +Former Deputy Attorney General Comey appeared before the Senate Judiciary Committee on May 15, 2007, in a hearing called to examine whether the Department had politicized the firing of U.S. Attorneys. + +Senator Schumer; who presided over the hearmg, began the questioning by asking Comey about reports in the media that in March 2004 White House. + +Counsel Gonzales and White House Chief of Staff Card had visited Attorney General Ashcroft in the hospital in an effort to override Comey's decision, made when he served as Acting Attorney General, not to certify a classified program. Comey was asked to recount the details of the incident. + +(U) +After prefacing his remarks by stating that he could not discuss classified information, Comey described the events of March 2004, including the confrontation between the Department and White House officials in Ashcroft's hospital room. + +In describing these events, Comey 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 +()] +certifying to its legality. And the ~ and I remember the precise date; the program had to be renewed by March the 11th, which was a Thursday, of 2004. And we were engaged in a very interisive reevaluation of the matter. + +(U) +Comey also testified that "as Acting Attorney General, +[ would not certify the program as to its legality, and explained our reasoning in detail, which I will not go into here, nor am 1 corifirming it's any particular program." As detailed in Chapter Four, Comey then described from his perspective the incident in the hospital room and testified that after that incident "[tJhe program was reauthorized without us, without a signature from the Department of Justice attesting as to its legality +. + +. + +. Jo@) + +## C. Gonzales's June 5, 2007, Press Conference (U) + +In light of Comey's statements, questions were raised abotit the accuracy of Gonzales'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 MS-13, the first question a reporter asked Gonzales concerned Comey's testimony: +REPORTER: Attorney General, last month Jim Comey testified about visits you and Andy Card made to John Ashcroft's hospital bed. + +Can you tell us your side of the story? Why were you there and did Mr. Comey testify truthfully about it? Did he remember it correctly? + +ATTY GEN. 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) + +Gongzales 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 he asked at the hearing,#*0 The letter referenced Gonzales's +410 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.) +February 6, 2006, testimony in which he stated that Department officials did net have "concerns about this program." The letter also referenced +'Comey s May 15 testimony concerning the incident in Asheroft's hospital roorn it March 2004. The letter specifically advised Gonzales that he would be asked to "provide a full explanation for the legal authorization for the President's warrantless electronic surveillance program in March and April +2004." (U) +At the July 24 hearing, Gonzales was repeatedly q'uesfi'o'ned about alleged inconsistencies between his and Comey's accounts of the events of March 2004 and the NSA program. + +For example, Senator Specter asked: +Let me move 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 about the program." +Mr. Comey's testimony was that Mr. + +Gionzales began to discuss why they were there to seek approval and he-then says, quote, "I was very upset. + +I was angry. + +I +thought I had just witnessed an effort to take advantage of a very sick man." +First of all, Mr., Attorney General, what credibility is left for you when you say there's no disagreement and you're party to going to the hospital to see Attorney General Ashcroft under sedation to try to get him to approve the program? + +ATTY GEN. GONZALES: +The disagreement that occurred and the reason for 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. + +V) +At other points 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 could "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) +conference ~ I did misspeak, but I also went baclk and clarified it with the reporter."# +(U) +'Gonzales then responded to Senator Schumer that "The President confirmed the existence of one set of activities," and that "Mr. Comey was talking about a disagreement that existed with respect to other intelligence activities. + +. + +: +. Mr. Comey's testimony ahout the hospital visit was about. + +other intelligence activities, disagreements over other intelligence activities. + +That's how we'd clarify it." +(U) +Other Senators questioned Gonzales's responses on this issue. For example, Senator Feingold stated: +With respect to the NSA's illegal wiretapping program, last year in hearings before this committee and the House Judiciary Comrnittee, you stated that, quote, "There has not been arny serious disagreement about the program that the President has confirmed," unquote, that any disagreement that did eccur, quote, "did noet deal with the program that I am here testifying about today," unquote, and that, quote, "The disagreement that existed does 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 this committee defending that testimony and asserting that it remains accurate. And I believe you said that again today. + +Now, as you probably know, I'm a member 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. Andl 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 come to that conclusion. + +(U) +Senator Whitehouse, also a member of the Intelligence Committee, similarly stated: +Mr. Gonzales, let me just follow up briefly 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 perception that he dees, and that is that if there is a kernel of truth in-what you've said about the program which we can't discuss but we know it to be the program at issue in your hospital visit to the Attorney General, the path to that kernel of truth is so convoluted 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 to lead us or mislead us away from the dispute that the Deputy Attorney General subsequently brought to our attention. + +So you may act as if He's behaving, you know, in a crazy way to even think this, but at least count two of us and take it seriously.#42 +(U) +Gonzales also offered to answer a question about the terrorist surveillance program in closed session during this exchange with Senator Specter: +SEN. SPECTER: +Going back to the question about your credibility ori whether there was dissent within the administration as to the terrorist surveillance program, was there any distinction 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 terrorist surveillance program which President Bush made public in December of 20057 +ATTY GEN. GONZALES: +Senator, this is a question that I +should answer in a lassified setting, quite frankly, because now you're asking me to hint or talk - to hint about our operational activities. And I'd be happy to answer that question, but in a classified setting. + +SEN. SPECTER: +Well, if you won't answer that question, my suggestion to you, Attorney General Gonzales, is that you review this transcript very, very carefully. + +I do not find your testimony credible, candidly. When I look at the issue of credibility, it is my judgment that when Mr. Comey 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 going to review your testimony very carefully to see if your credibility has been breached to the point of being actionable. + +o) +Near-the end of the hearing Senator Schumer questioned Gonzales regarding the meeting at the White House with the "Gang of Eight" +congressional leaders, just before Gonzales and Card went to Ashcroft's hospital room on March 10, 2004: +SEN. SCHUMER: +OK. But you testified to us that you didn't believe there was serious dissent on the program that the President authorized. And now you're saying they knew of the dissent and you didn't? + +ATTY GEN. GONZALES: The dissent related to other intelligence activities. The dissent was not about the terrorist surveillance program the President confirmed and . + +. + +. + +SEN. SCHUMER: You said, sir - sir, you said that they knew that there was dissent. + +But when you testified before us, you said there has not been any serious disagreement. And it's about the same program. + +It's about the same exact program. + +You said the President authorized only one before. + +And the discussion - you see, it defies credulity to believe that the discussion with Attorney General Ashcroft or with this group of eight, which we can check on - and I hope we will, Mr. + +Chairman: +that will be yours and Senator Specter'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? + +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 TSP? Come on. + +If you say it's about +"other," that implies not. Now say it or not. + +ATTY GEN. GONZALES: +It was not. + +It was about other intelligence activities. + +SEN. SCHUMER: Was it about the TSP? Yes or no, please? + +That's vital to whether you're telling the truth to this comimittee. + +ATTY GEN. GONZALES: +It was about other intelligence actlvmes u) +When we interviewed Gonzales, he stated that there was never any intent to hide the NSA program from Congress, and he said that Congress was briefed on multiple occasions about the program.#4 +Gonzales also stated t at he could riot explain to +' +adjciary r +' +Gonzales sald that hecould +7 +that when he used the term it 1eferred only to the content Collectlon activities the President had confirmed publicly, and that the rest of the program 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. {IS/LSTLW-//SHAGCNF- + +## E. [Fbi Director Mueller's July 26, 2007, House Committee On The Judiciary Testimony (U) + +Two days after Gonzales's July 24, 2007, Senate Judiciary Committee testimony, FBI Director Mueller testlfled before the House Judiciary Comrmittee. + +At this hearing, Mueller was asked about his conversation with Attorney General Ashcroft at the hospital on the evening of March 10, 2004. + +As discussed in Chapter Four of this report, Mueller arrived at the hospital just after Gonzales and Card left. + +Mueller was asked to recount what he learned from Ashcroft concerning Ashcroft's exchange with Gonzales and Card earlier that evening: +REP. JACKSON LEE: Could I just say, did you have an understanding that the discussion was on TSP? + +MR. MUELLER: +I had an understanding the discussion was on a-a NSA program, yes. + +REP JACKSON LEE: +I guess we use "TSP," we use warrantless wiretapping, so would I be comfortable in saying that those were the items that were part of the discussion? + +MR. MUELLER: +I- the discussion was on a national an NSA +program that has been much discussed, yes. + +(V) +We asked Mueller about his understanding of the term "terrorist surveillance program." Mueller said that the term "TSP" was not used by the FBI prior to The New York Times article and the President's confirmation of one aspect of the program. + +Mueller said he understood the term to refer to what the President publicly confirmed as to content intercepts. Mueller said he believed the term "T'SP" +was part of the "overarching" Stellar Wind program, but that "TSP" is not synonymous with Stellar Wind, #4% ~{S7/F)- + +## F. Gonzales's Follow-Up Letter To The Senate Judiciary Comimittee (U) : + +In an effort to clarify his July 24, 2007, Senate testimony, on August 1, 2007, Gonzales sent unclassified letters to Judiciary Committee Chairman Leahy and Senator Specter. Gonzales's letter to Leahy stated that he was deeply concerned with suggestions that his testimony was +' +misleading and he was determined to address any such .i'mp'ression. + +He explained that "shortly after 9/11, the President authorized the NSA to undertake a number of highly classified activities," and that, "although the legal bases for these activities varied, all of them were authorized in one presidential order, which was reatithorized approximately every 45 days." +Gonzales wrote that before December 2005 "the term 'Terrorist Surveillance Program' was riot used to refer to these activities, collectively or otherwise." +Rather, Gonzales wrote that the term was first used in early 2006 "as part of the public debate.that followed the unauthorized disclosure [by the New York Times] and the President's acknowledgement of one aspect of the NSA +activities[.]? + +(U) +Gonzales also wrote in this letter that in his July 24 testimony he was discussing "only that particular aspect of the NSA activities that the President has pubhcly acknowledged, and that we have called the Terrorist Survefllance Program|.]" +He wrote that he recognized that his use of this term. or his shorthand reference to the "program' publicly 'described by the President" may have "created confusion." Gonzales maintained that there was "not a serious disagreement between the Department and the White House in March 2004 about whether there was a legal basis for the particular activity later called the Terrorist Surveillance Program." (U) +Gonzales also wrote in his letter, "That is not to say that the legal issues raised by the Terrorist Surveillance Program were insubstantial; it was an extraordinary activity that presented novel and difficult issues and. + +was, as 1 understand, the subject of intense deliberations within the Department. + +In the-spring of 2004, after a thorough reexamination of all these activities, Mr. Comey and the Office of Legal Counsel ultimately agreed that the President could direct the NSA to intercept international communications withotit a court order where the interceptions were targeted at al Qaeda or its affiliates. + +Other aspects of the NSA's activitiesreferenced in the DNI's letter [attached to Gonzales's letter] did precipitate very serious disagreement." +(U) + +## V. 0Oig 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 below, we concluded that Gonzales''s testimony did not constitute a false statement under the criminal statutes. We also concluded that he did not intend his testimony to be inaccurate, false, or misleading. + +However, 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 confirmed 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 to adequately fulfill its legal responslblhtles concerning the program through March 2004. 'Similarly, the White House's decision not to allow at least the Chair and Ranking Members of the House and Senate Judiciary Commiittees to be briefed iiito the program created difficulties for Gonzales when he testified before Congress about the disputes regarding the program, ThlS limitation also affected the Comunittee's ability to understand or adequately assess the program, espec1a11y in connection with the March 2004 dispute. + +We ag1ee with +'Goldsmith's observation about the harm in the White House's +"over-secrecy" +for this program, as well as Director Mueller's suggestlon made in March +2004, that briefings on the program should have been given to the House and Senate Judiciary Committees. + +This did not occur, and it made Gonzales's testimony to the Senate Judiciary Committee unusually difficult. + +Yet, even given these difficulties, we believe that Gonzales's testimony was imprecise, confusing, and likely to lead those not read into the program to draw wrong conclusions about the nature of the dispute between White House and Department officials in March 2004. + +In addition, two Senators who Had been read into the program stated that they were confused by Gonzales's testimony. Although we concluded that Gonzales did notintend to mislead Congress, his testimoriy nonetheless had the effect of creating confusion and inaccurate perceptions about certain issues covered during his hearings. + +(U) +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 need not to be misleading in his testimony about the 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 sufficient 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 collection part, or basket 1, of the NSA surveillance program.#45 +The President; and Gonzales, used the term "terrorist surveillance program" +in connection with the President's confirmation of these NSA activities. + +However, as discussed below, it was not clear - even to those read into the program - whether the term "terrorist surveillance program" referred only to content collection (basket 1) or the entire program. + +Nevertheless, Gonzales suggested in his testimony that the dispute between the White House and the Department concerned other intelligence activities that were unrelated to the content collection portion of the program that the President had confirmed. This was not accurate. (S//NE} +We recognize that the term "terrorist surveillance program" was intended by Gonzales and other Administration officials to describe a limited set of activities within the Stellar Wind program and that the term was created only in response to public disclosures about the program. However, by using phrases. such as the "terrorist surveillance program" or "the program that the President has confirmed," and setting-, that program distinetly apart from "other intelligence activities," Gonzales's testimony created a perception that the two sets of activities were entirely unrelated, which was not accurate. + +Gonzales's testimony suggested that the dispute that Comey testified about was not related to the program that the President had confirmed, and instead that the dispute concerned unrelated +"operations" or "intelligence activities." Thus, While Gonzales may have +1ntended the term "terronst survefllance program" to cover only content Gongzales reinforced this misperception 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, "I 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 was problematic. + +In a February 28, 2006, letter to Senators Specter and Leahy, Gonzales sought to clarify his response, stating, "I was confining my remarks to the Terrorist Surveillance Program as descnbed by the President, the legality of which was the subject of the February 6th hearing." +However, in our view this attempt to clarify his remarks did not go nearly far enough. As discussed below, it was not until after Gonzales's next appeararice before the Senate Judiciary Committee in July 2007 that Gonzales acknowledged that the President had also vauthonzed a range of intelligence-gathering activities, including those +-descmbed undcr the terrorist surveillance program, in a single order. + +We concluded that Gonzales created a misimpression for Congress and the public by suggesting that the March 2004 dispute between the Department and the White House concerned issues wholly unrelated to "the program the President confirmed," or the terrorist surveillance program. We believe a fairer and more accurate characterization would have been that the March 2004 dispute concerned aspects of a larger program of which the. + +terrorist surveillance program was a part. + +As discussed earlier, the NSA +viewed the three types of collections as a single program. The three types of collections were all authorized by the same Presidential order and administered by a single intelligence agency. + +Moreover, all three collectioris were known in the Intelligence Community by the same Top Secret/ SenSLtlve Compartmented Information program cover term, Stellar was incomplete and not accurate. (FS/AASH-HOEINF) +When Senator Schumer asked Gonzales at the February 2006 Senate hearing whether media accounts that Comey "expressed grave reservations about the NSA program" were true, Gonzales responded that there was no When we interviewed Gonzales, he told us that he was trying to be careful during his public testimony about discussing or characterizing a classufied program w1th persons not read into the program, and that he used he term nt" +to d1stmcrulsh the dlsacrreement regardmg Yet, even if one agrees th +- +was not a "serious disagreement" between the Department and the White House, Gonzales's testimony is still problematic. When Senator Schumer pressed Gonzales on whether Department officials "expressed any reservations about the ultimate program," Gonzales replied: +"Senator, +[ +want to be: very careful here, because, of course, I'm here only testifying about what the President has confirmed. And with respect to what the President has confirmed, I believe - I do not believe that these DOJ officials that you're identifying had concerns about this program." +We understand that it 1s possible to construct an argument thaL the accurate, it would still not account for key details that were omitted from +'G:bnz'aerS's testimony that would be necessary for an accurate undetstanding of the situation, The Dep artment clearly had reservations and concerns about thefll +|| of the program, or Specter the Pre +. + +Norcover, Gonzales himself contrad construction by stating in a February 28, 2006, letter to Senat ance program was first authorized by += +. + +| Gonzales knew that Comey, e Department had expressed "reservations" or Iprior to the President's decision tog +. + +oo +: +was more significant than that Comey and others had the extent of the President's These concerns had been communicated to TrL +s prior to.and in months. + +e House in several meetings over a period of March 2004, and the White House did not +. + +|| part of the program in response to se coricerns. However, Gonzales's testimony suggested that such concerns and reservations on the part of Justice Department officials never existed. To the contrary, the Department's firm objections to this aspect of the program were instrumental in bringing abou +| +collection in "the program the President has confirmed." +Foliowing his July 24, 2007, testimony, Gonzales acknowledged in an unclassified August 1, 2007, letter to Senator Leahy that his use of the term +"tetrorist 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 NSA 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 President had authorized. + +His letter also acknowledged the dispute concerned the legal basis for certain NSA activities that were regularly avithorized in the same Presidential Authorization as the terrorist surveillance program. + +Gonzales also acknowledged that Comey had refused to certify a Presidential Authorization "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. + +'Gonzales still suggested in his August 1 letter that the only dispute between +. Lhe De' artment an 'the V 1LeHouse concerned aspects of the program Whlle we again acknowledge the difficulty of the situation Gonzales +: +faced in testlfylng publicly about a highly classified and controversial program, we believe Gonzales could have done other things to provide clearer and more accurate testimony without divulging classified inforination. Sirnilarto the import of his August 1 letter, and without prov1d1ng operational details about these other activities, hie could have +larified that part of the dispute with the Department concerned the scope of what he called "the terrorist surveillance program," while another part.of the dispute concerned other "intelligence activities" that were either related to the terrorist surveillance program or, mere accurately, a different aspect of the saine NSA program. Gonzales also could have explained that different activities under the program raised differerit concerns within the Department 'because each set of activities rested upon different legal theories. 447 {S//NF +Alternatively, Gonzales could have declined to discuss any aspect of the dispute at an open hearing.#48 +Or, short of: seeking a closed sessiomn, Gonzales could have sought White House approval to brief the Chairs and Ranking Meinbers of the Senate and House Judiciary Commiittees about the program so that they would fully understand the nature of the NSA program anid the classified issties surrounding the dispute. + +Instead, Gonzales gave public testimony that was confusing and inaccurate, and had the effect of misleading those who were not read into the program, as well as some who were. + +(U) +Concerning Gonzales's July 2007 testimony in particular, the questions 'Gonzales would be expected to answer were clearly foreseeable, especially in light of the disparities between his February 6, 2006, testimony and Comey's May 15, 2007, testimony. + +In addition, Gonzales had been provided a letter by Senator Leahy referencing Comey's testimony and advising Gongzales to be prepared to discuss the legal authorization for the +"President's warrantless electronic surveillance program in March and April +2004." Gonzales was therefore on notice that he would be expected to bring +'clarity to the confusion that existed following Comey's testimony. Rather than clarify these matters, we believe Gonzales further confused the issues through his testimony.. + +(U) +Finally, we considered whether Gonzales's testimony constituted criminal false statements and concluded that his statements did not. + +coristitute a criminal violation of 18 U.S.C. 1001. + +A person violates that statute by "knowingly and willfully" making a "materially false, fictitious, or fraudulent statement or representation[.]" +18 U.S.C. 1001(a)(2). We do not believe the evidence showed that Gonzales intended to mislead Congress or willfully 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.##? + +(U) +In surn, we believe that while the evidence did not show that Gonzales's statements constitute a criminal violation, or that he intended to mislead Congress, his testimony was confusing, not accurate, and had the effect. + +of misleading those who were not knowledgeable about the program. + +His testimony also undermined his credibility on this important issue. + +As the Attorney General, we believe Gonzales should have taken more care to erisure that his testimony was as accurate as possible without revealing classified information, particularly given the significance of this matter and the fact that aspects of the dispute had been made public previously. + +(U) +(D.C. Cir. 1999)(reversing on other grounds). + +{U) + +## Chapter Nine Conclusions (U) + +' +Within weeks of the terrorist attacks of September 11, 2001, the National Security Agency (NSA) initiated a Top Secret, compartmented program to collect and analyze international and domestic telephone and e-mail communications and related data. The intent of the NSA program, which used the cover term Stellar Wind, was to function as an "early warning system" to detect and prevent future terrorist attacks within the United States. (TS//STLW//SHLOC/NF +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 electronic surveillance within the United States for counterterrorism purposes, without a court order, under specified circumstances. Under the program the NSA collected vast amounts of information through electronic surveillance and other intelligence-gathering techniques, including information concerning the telephone and e-mail communications of American citizens and other U.S. persons. Top Secret compartmented information derived from this collection was provided to, among other agencies, the FBI, which sent Secret-level, non-compartmented versions of the information to FBI field offices as investigative leads. + +The Stellar Wind program represented an extraordinary expansion of the NSA's signals intelligence activity and a departure from the traditional restrictions on electronic surveillance imposed under the Foreign Intelligence Surveillance 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. {FSHSTEW/SHAOES/ +N +The White House tightly 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. + +## 1. Operation Of The Program (U//Foyq) + +Under the program, the NSA initially 1ntcrcepted the content of international telephone and e-mail communications in cases where at least one of the communicants was reasonably believed to be associated with any international terronst group. These collections became known as basket 1 +of the Stellar Windn. + +JSA also collected bulk telephony and e-mail meta data - +communications signaling information showing contacts between and among telephone numbers and e-mail addresses, but not the contents of those communications. These collections became known as basket 2 + +(telephone meta data) and basket 3 (e~mail meta data) of the Stellar Wind program X +: +Unde: basket 2 collections. + +] +- +- +#50 E-mail meta data included only the "to," "from," +"cc," "bcc and other addressing-type information, but similar to call detafl 1.ecords did not include the subject line or the message contents. (FS/F+STPEWASHAOCNE) +NSA analysts accessed baskets 2 and 3 for analytical purposes with specific telephone numbers or e-mail addresses that satisfied the standard for querying the data as described in the Presidential Authorizations. + +A +"tipped," to the F. + +-armall amount of the collected content and meta data was analyzed by the NSA, working with other members.of the Intelligence Community, to generate intelligence reports about suspected terrorists and individuals possibly associated with them. .Manyvof these reports were disseminated, or ther dissemination as leads to FBI field off: +As JE +2 +|individual U.S. telephone number: +e-mail addresses had been tipped to the FBI, the vast maj ority of which were dissemiinated to FBI field offices for investigation or other action. + +The: +results of these investigations were uploaded into FBI databases. + +N +The Justice Department had two primary roles in the Stellar Wind program. + +First, the Attorney General was required to certify each Presidential Authorization as to form and legality - in effect, to give the Department's assurance that the activities the President was authorizing the NSA to conduct were legal. In carrying otit this responsibility, the Attorney General was advised by the Department's Office of Legal Counsel +(OLC). As we described in this report and discuss in the next section, we foutid that during the early phase of the Stellar Wind program the Department lacked sufficient attorney resources to be applied to the legal review of the program and, due in significant part to the White House's extremely close hold over the program, was not able to coordinate its legatl review of the program with the NSA. {FS/HSTEW//ST/7OC/NF) +The Department's other primary role in Stellar Wind was as a member of the Initelligence Community. The FBI was one of two main customers of the intelligence produced under the program (the other being the CIA), Working with the NSA, a small team of FBI personnel converted the NSA's Top Secret Stellar Wind intelligence reports into leads that w disseminated at the Secret level, under an FBI program called +| +to FBI field offices for appropriate action. + +As detailed in Chapt discussed below, we concluded that although the information produced under the Stellar Wind program had value in some counterterrorism investigations, it played a limited role in the FBI's overall counterterrorism efforts. (FS7/7/STEW// +ST/ O/ +1) + +## 1. Office Of Legal Counsel's Analysis Of The Stellar Wind Program 4Ts//Sl//Nf) + +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 Department's view of the legal support for the activities conducted under the program changed over time as more attorneys were read into the program, These changes occurred in three phases. + +In the first phase of the program +(September 2001 through May 20083), the legality of the program was founded on an analysis developed by John Yoo, a Deputy Assistant Attorney General in OLC. In the second phase (May 2003 through May 2004), the: +program's legal rationale underwent significant review and revision by OLC +Assistant Attorney General Jack Goldsmith and Associate Deputy Attorney General Patrick Philbin. In the third and final phase (July 2004 through January 2007), based in part upon the legal concerns raised by the Department, the entire program was moved from presidential authority to statutory authority under FISA, with oversight by the FISA Court. + +In Chapters Three and Four, we examined the Department's early role in assessing the legality of the Stellar Wind program. + +The Justice Department's access to the program was controlled by the White House, and former White House Counsel and Attorney General Alberto Gonzales told the +"OIG that the President decided whether rion-operational personnel, including Department lawyers, could be read into the program. Department and FBI officials told us that obtaining approval to read in Department officials and FISA Court judges involved justifying the requests to Counsel to the Vice President David Addington and White House Counsel Gonzales, who effectively acted as gatekeepers to the read-in process for non-operational officials. + +In contrast, according to the NSA, operational personnel at the NSA, CIA, and the FBI were read into the program on the authority of the NSA Director, who at some point delegated this authority to the Stellar Wind Program Manager. {FS/+5H-/NF) +We believe the White House's policy of limiting access to the program for non-operational personnel was applied at the Department of Justice in an unnecessarily restrictive manner prior to March 2004, and was detrimental to the Department's role in the operation of the program from its inception through that period. We also believe that Attorney General Asheroft, 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 belicve 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 officials between the program's inception in October 2001 and the critical events of March +0004 FSSHF +Although we could not determine exactly why Yoo remained the only Department attorney assigned to assess the program's legality from 2001 +until his departure in May 2003, we believe that this practice represented an extraordinary and inappropriate departure from OLC's traditional review and oversight procedures and resulted in significant harm to the Department's role in the program. ~ESHHSH-E +1) the earliest phase of the program, Yoo advised Attorney General +. Asheroft and the White House that the collection activities under Stellar Wind were a lawful exercise of the President's inherent authorities as Commander-in-Chief under Article II of the Constitution, subject only to the Fourth.Arnendment"s reasonableness standard. + +In reaching this conclusion, Yoo dismissed as constitutionally incompatible with the Presi'dcnt?s Article I1 authority the FISA statute's provision that FISA was: to be the "exclusive means" for conducting electronic surveillance in the United States for foreign intelligence purposes, and he concluded that these statutery provisions should be read to avoid conflicts with the President's constitutionial Commander-in-Chief authority. (ES/STEW/SHFOE/F) +As noted above, during the first year and a half of the Stellar Wind program only three Department attorneys were read into the program - Yoo, Attorney General Ashcroft, and James Baker, Counsel in the Office of Intelligence Policy and 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 advice on the legal basis to support the program. Thus, Yoo was providing legal opinions on this unprecedented expansion of thie NSA's surveillance authority without review by his OLC +su;p_erx_iisor or any other Department attorney. + +Rather, Yoo worked alone on this project, and produiced two major opinions supporting the legality of the program. + +: +Aiza When additional attorneys were read into the program in 2003, they provided a fresh review of Yoo's legal memoranda. + +Patrick Philbin, an Assoclate Deputy Attorney General, and later J ack Goldsmith, Bybee's replacement as the Assistant Attorney General for OLC, concluded that Yoo's analysis was seriously flawed, both factually and legally. + +Goldsmith Land Philb that the NSA was collecting] +i +: +' +lvsis fundamentally mischaracterized failing to address the fact and also failing to assess the legality of this activity as it was carried out by the NSA, Goldsmith and Philbin also pointed to Yoo's assertion that Congress had not sought to restrict presidential authority to conduct warrantless searches in the national security area, and criticized Yoo's omission from his analysis of a FISA 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 ggressive view of the law that revolved around the Constitutional primacy of the President's Articlee II Commander-in-Chief powers, and he may have done so based on a faulty understanding of key elements of the program, As described in:-Chapter Four, Goldsmith and Philbin's reassessmeent of the legality of Stellar Wind began after Yoo left the Department in May +2003, and culminated in a 108-page legal memorandum issued on May 6, +2004. That memorandum superseded Yoo's earlier Stellar Wind opinions and premised the legality of the program's electronic surveillance activities on statutory rather than Article II constitutional grounds.*>1 +As a consequence of this new legal rauonale Department officials concluded that the Pres1dent's authority to condu ct illance of the enemyin We agree with many of the criticisms offered by Department officials regarding the practice of allowing a single Department attorney to develop the legal justification for such a complex and contentious program without critical review both within the Department and by the NSA. These officials 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 OLC''s traditional practice of peer yeview of all OLC memoranda and the need for the OLC Assistant Attorney General, as a Senate-confirmed official, to review and approve all such opinions. {FS/SH/NFY +These officials 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, OLC's advisory role is particularly critical to the Executive's understanding of potential statutory and Constitutional constraints on its actions. + +{ES/1SHME) +We did not agree with Gonzales's view that it was necessary for national security reasons to: limiit the number of Departmerit read-ins to those "who were absolutely essential," as distinguished from the numerous operational read-irs who were necessary to the technical implementation of the program. + +First, the program was as legally challenging as it was technically complex. Just as a sufficient number of operational personel were read into the program to assure its proper technical implementation, we believe that-as many attorneys as necessary should have been read in to assure the soundness of the prograrn's-legal foundation. + +This was not done during at least the first 20 months of the program. FS/SH-{NE}- +Second, we do not believe that reading in a few additional Department attorneys during the initial phase of ould have jeopardized national security, especially given the perational personmnel who were cleared into the program during the same period.#52 +In fact, the highly classified nature of the program, rather than constituting an argument for limiting the OLC read-ins to a single attorney, made the need for careful analysis and review within the Department and by the NSA more We also found that the expansion of legal thinking and breadth of expertise from readingin additional Department attorneys over time eventually produced more factually accurate and legally comprehensive andlyses concerning the program. Increased attorney read-ins also was an important factor in grounding the program on firmer legal footing under FISA. The transition of the program from presidential authority to statutory authority under FISA with judicial oversight was made possible through the collective work of the attorneys who finally were read into the program beginningin 2004. The applications to the FISA Court to effectuate this transition 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. {FS/SH/NE}- +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 gcrub" Stellar Wind-derived information in FISA applications and improve the handling of Stellar Wind-related discovery issues in international terrorism prosecutions. + +Philbin, +and Goldsmith had be + +## Il Hospital Visit And White House Recertification Of The Program ) + +In Chapter Four, we describe how the Department's reassessment of Yoo''s legal @nalysis led Deputy Attorney General James Comey, who was exercising the powers of the Attorney General while Ashcroft was hospitalized 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 dction Ashcroft refused to take. We believe that the way the White Houise handled its dispute with the Department about the program - particularly in dispatching Gonzales and Card to Ashcroft's hospital room in an attempt to override Comey's decision - was troubling, {FS77St/7NF) +; +As detailed in Chapter Four, by March 2004 when the Presidential Authorization in effect at that time was set to. expire, Goldsmith had already notified the White House several months earlier about the Department's doubts concerning the legality of aspects of the Stellar Wind p am. + +He +- +' +Wh'e-n,Attorney- General Ashcroft was 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 March 11, 2004, Comey made clear to senior White House officials, including Vice President Cheney and White House Counsel Gonzales, that the Justice Department could not certify the program as legal. The White House disagreed with the Justice Department's position, and on March 10, +2004, convened a meeting of eight congressional leaders to brief them on the Justice Department's decision not to recertify the program and on the need to continue the program. The White House did not ask Comey or anyorie 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 Bush, Gonzales and White House Chief of Staff Andrew Card went to the hospital to seek Attorney General Ashcroft's certification of the. + +Authorization. + +Again, the White House did not notify any Department officials, including 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. + +Ashecroft +'t_old.Gonzales and Card from his hospital bed that he supported the Department's revised legal position, but that in .any event he was not the Attorney General at the time ~ Comey was. 53 P57/ SH/7NF) +On March 11, the following day, Gongzales (_:ertified the Presidential Authorization as to form and legality. {TS/ASH-ANE)- +'We agree with Director Mueller's observation that the White House's failure to have Justice Department representation at the congressional briefing and the atterpt to persuade Ashcroft to recertify the Authorization without going through Comey "gave the strong perception that the [White House] was trying to do an end run around the Acting [Attorney General] +whoni they knew to have serious concerns as to the legality of portions of the program." +- +After Mueller, Comey, and other senior Department and FBIL 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 interview key White House officials, we could not determine for certain what caused the White House to change its position and modify the program, although we believe the prospect of mass resignations at the Department and the FBI was a significant factor in this decision.{157; +\ +We reached several conclusions based on our review of the Department's role in the legal analysis of this program and the everits surrounding the dispute between the Department and the White House. + +First, legal opinions supporting complex national security programs - +especially 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 Exccutive 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. FS/SH-HNE +General Ashcroft if in fact he wasn't fully competent to malke that decision." Gonzales also testified, "There's no governing legal principle that says that Mr. Ashcroft +[. + +. + +.] +Ifhe decided he felt better, could decide, I'm feeling better and +1 can make this decision, and I'm going to make this decision."TM +(U]} +Second, we believe that if the OLC's traditional peer review and supervisory procedures had been adhered to at the outset, the prospect that aspects of the program w ould have rested on a queshonable legal foundatlon for over 2 years would have been greatly mitigated. + +Third, we believe that the Department and FBI officials who resisted the pressure to recertify the Stellar Wind program because of their belief that aspects of the program were not legally supportable acted courageously and at significant professional risk. We believe that this action by Department and FBI officials - particularly Asheroft, Comey, Mueller, Goldsmith, Philbin, and Counsel for Intelligence Policy James Baker - was in accord with the highest professional standards of the Justice Department. (PS/FSLAANE) +We recommend that when the Department of Justice 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 funiction as legal 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 Departinent a sufficient number of read-ins when requested, consistent with national security considerations, to enstre that such sensitive programs receive a full and careful legal review. + +(U) + +## 1V. Tn'Ans1T10N Of Ngram To Fisa Authority + +We also examined the transition of the Stellar Wind program's collection 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. 1FS77/STEW/ +ST/ 7OCTNF) +Chief among these considerations was the Stellar Wind program's substantial effect on privacy interests of U.S. 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 U.S. persons and the NSA collected massive amounts of non-content data about U.S. persons' domestic and international telephone calls and e-mail communications. We believe that such broad surveillance and collection activities, particularly for a significant period of time, should be conducted pursuant to statute and judicial oversight. We also believe that placing these activities under Court supervision provides an important measure of accountability for the +~ government's conduct that is less assured where the activities are both authorized and supervised by the Executive Branch alone. + +The instability of the legal reasoning on which the program rested for +" several years and the substantial restrictions placed on FBI agents' access to-and use of program-derived information due to Stellar Wind's highly classified status were additional reasons for transitioning Stellar Wind's collection activities to FISA authority. We acknowledge that the transition would always have been an enormously cornplex and time-consuming effort that rested upon novel interpretations and uses of FISA that not all FISA +Court: judges would authorize. + +Nevertheless, the events described in this report-demonstrate that a full transition to FISA authority was achievable and, in our judgment, should have been pursued earlier. + +NF) + +## V. Impact Of Stellar Wind Information On Fbi Counterterrorism Efforts (S/Ne) + +As a user of Stellar Wind,_program.informa.tion, the FBI disseminated leads or "tippers" to FBI field offices. These tippers primarily consisted of specific domestic telephone numbers and e-mail addresses that NSA +b1, analysts had determined through meta data analysis were connected to b3, individuals involved with al Qaeda or affiliated groups. The tippers also b7E +included content of communications intercepted by the NSA based upon its determination that there was probable cause to believe that a party to the communication was al Qaeda or-an affiliated group. + +F +Qctober 2001 +through February 2006, the NSA provided the FB] +' +tippers, the vast majority of which were domestic telephone numbers. + +The FBI'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 +straightforward process to receive the Top Secret, compartmented Stellar Wind reports from the NSA, reproduce the information in a rion-compartmented, Secret-level format, and disseminate the information in Electronic Communications, or ECs, to the appropriate field offices for investigation. These} +ECs placed restrictions on how the information could be use field offices that the information was "for lead purposes only" and could not be used for any legal or judicial purpose. {FSFHETEW; +: +The FBI's participation in Stellar Wind evolved over time as the program became less a temporary response to the September 11 attacks and more a permanent surveillance capability. + +As Stellar Wind continued to be reauthorized, the FBI tried to improve the effectiveness of its participation in the program. Most significantly, in February 2003 a team of FBI personriel (Team 10) was assigned to work full-time-at the NSA to manage the FBI's participation in the program. {FS//+SH-/MNE) +Team 10's chief responsibility was to disseminate Stellar Wind information to FBI field offices. However, over time Team 10 began to participate in Stellar Wind in other ways. + +For example, Team 10 submitted telephione numbers and e-mail addresses to the NSA for possible querying against the bulk meta data collected under the program, and Team 10 +regularly contributed to the NSA's drafting process for Stellar Wind reports. + +Overall, we found that the decision to assign Team 10 to the NSA improved the FBI's knowledge about Stellar Wind operations and gave the NSA better insight about how FBI field offices investigated Stellar Wind information. + +These benefits translated to improvements i Stellar Wind report drafting process, and by extension, in +| leads. + +) +One of the other changes the FBI implemented to attempt to improve the process for handling Stellar Wind leads was to make the FBIl's Headquarters-based Communications Analysis Unit (CAU), instead of the field offices, responsible for issuing National Security Letters (NSL) to obtain subscriber 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 rion-compartmented, Secret-level format, did not provide sulfficient information to initiate national security investigations, a prerequisite under Justice Department investigative guidelines to issuing NSLs. Agents complained that the ECs 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. FSAFSTEWSHAOENE +W +from thef +' +Septembe +2 +&l +: +related communications bl, b3, b7E +between FBI Headquarters and field oiiices. + +Lssuing NSLs from a control file instead of an investigative file was contrary to internal FBI policy. + +In mber 2006, the FBI finally opened an investigative file for th project. We believe the CAU and OGC officials involved in the decision good fai_th- that to.issue NSLs from the control file concluded in the FBI had sufficient predication either to conmnect thef +7 +I NSLs ith existing preliminary or full investigations of al Qaeda and affiliated sroups or to open new preliminary or full investigations in compliance with Justice Department investigative guidelines. + +However, we concluded that the FBI could have, and should have, opened an investigative file fo when the decision was to have FBI Headquarters instead of fices issue NSLs for leads. [TS77STEW//SHEESEH +We also tried to assess the general role of Stellar Wind information in FBI investigations and its value to the FBI's overall counterterrorism efforts: +Similar to the FBI, we had difficulty assessing the specific value of the prdgrar'n to the FBI's counterterrorism activities. ~{S//N) +The majority of Stellar Wind information the NSA provided the FBI +':r'e,'l,'a'tedj to domestic telephone numbers and e-mail addresses the NSA had isingly, FBI agents and analysts with expe estigating cads told us that most leads were determined not to have any connection to terrorism. + +These ts and analysts did not identify for us atiy specific cases where: +eads helped the FBI identify previously unknown subjects involved in terrorism, although we recognize that FBI +' +officials -and agents other than those we interviewed may have had different experiences with Stellar Wind information. S 3TEW /7SI 7TOCTNE) +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 "significant" contributions.*3* The second study did not identify any examples of "significant" Stellar Wind contributions to FBI counterterrorism efforts.*35 The FBI OGC told us that +455 As described earlier in this chapter, the FBI considered a tipper "significant" if it led to any of three investigative results: +the identification of a terrorist, the deportation from the United States of a suspected terrorist, or the development of an asset that can report about the activities of terrorists. P37 +statements by senijor FBI officials in congressional testimony that the Stellar Wind program had value were based in part on the results of the first study, which found that 1.2 percent of the Stellar Wind leads made significant contributions to- FBI cases {FSHSPEWT +/ST +OCTNF) +ts we interviewed generally were supportive of Stellar Wind +(or b1, b3, b7E +O1 +)5 calling the information "one tool of many" in the FBI's anti-terrorism efforts that "could help move cases forward" by, for example, confirining a subject's contacts with individuals involved in terrorism or identifying additional terrorist contacts. However, FBI agents and analysts also told us that the Stellar Wind information disseminated to FBI field offices could also be frustrating because it often lacked details about the foreign individuals allegedly involved in terrorism with whom domestic telephone numb +: +1 addresses were in contact. + +Some agents also believed thatthel += +1 +{project failed to adequately prioritize leads sent to FBI field offices. + +{IS//STL +: +AN +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 stated that to the extent such information can be gathered and used legally it must be exploited, and that he "woiild not dismiss the potency of a program based on the percentage of hits." Other witnesses shared this view that an intelligence program's value cannot be assessed by statistical measures alone. General Hayden said that the value of the program may li in its ability to help the Intelligence Community determine that the terrorist threat embedded within the country is not as great as once feared. Some witnesses also believed that the value of the program should net depend on documented "success stories," but rather on maintaining an intelligence capability to detect potential terrorist activity in the future. Several witnesses suggested that the program provides an "early warning system" to allow the Intelligence Community to detect potential terrorist attacks, even if the system has not specifically uncovered evidence of preparations for such an attack. + +(PSFSEEH +L OSF) +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 FBI's 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 FBI's counterterrorism efforts. + +The evidence indicated that Stellar Wind information had value in some of these investigations by causing the FBI o take action that led to useful investigative results. + +In other cases the connection between the Stellar Wind information and the FBI's investigative actions was more difficult to discern. ~FSAHSTEW//SHLOC/NE) +In the end, we found it difficult to assess or quantify the overall effectiveness of the Stellar Wind program to the FBI's counterterrorism activities. However, based on the interviews condiicted and documents reviewed, we concluded that although Stellar Wind information had value in some counterterrorism investigations, it generally played a limited role in the FBI's overall counterterrorism efforts. (77} +It is'also important to note that a significant consequence of the NSA +program and the FBI's approach to assigning leads for program information was that FBI field offices conducted many threat assessments on individuals located in the United States, including U.S. persons, that typically were determined not to have any nexus to terrorism or represent a threat tonational security. As a result, the FBI collected and. retained +-a significant amount of personal information about the users of tipped telephone numbers and e-mail addresses, such as names and home addresses, places of employment, foreign travel, and the identity of family members. The results of these threat assessments and the information collected generally were reported in communications to FBI Headquarters and uploaded into FBI databases.{FS//STEW +' +TRI's collection of information in this disseminates to FBI field offices lead information the NSA derives from bulk jony: +-mail meta data now collected under FISA authority. Like b1 +. + +| +project requires FBI field offices to conduct threat b3' +assessments on telephone numbers and e-mail addresses identified through b7i +the NSA's analytical process that the FBI is not already aware of, including telephone numbers and e-mail addresses one or two steps removed from direct contacts with individuals involved in terrorism. + +To the extent the leads derived from the FISA-authorized activities generate results similar to those under Stellar Wind, the FBI threat assessments will continue to result in the collection and retention of a significant amount of personal information about individuals in the United States, including U.S. persomns, 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 field offices that are assigned as bl, Action leads and that require offices to conduct threat assessments. The b3, information compiled by the Justice Department should include whether b7E +individuals identified in threat assessments are U.S. or non-U.S. 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 not involved in terrorism and are not threats to national security, the Justice Depelrltment.shbul'd take steps to track the ,quantitya'n_d nature of tth,S., person information collected and how the FBI retains and utilizes this information. This will enable the Justice Department and entities with oversight responsibilities;, including the OIG and congressional committees, to assess the impact this intelligence program has on the privacy interests of U.S. persons and to consider whether, and for how long, such information should be retained. TTS77SH/NH +We also recommend that, consistent with NSD's current oversight activities and as part of its periodic reviews of national security +' +investigations at FBI Headquarters and field offices, NSD- shouild review a b1, b3, representative samplit lleads to those offices. + +For each lead b7E +examined, NSD should assess FBl compliance with applicable legal requirements in the use of the lead and in any ensuing investigations, particularly with the requirements governing the collection and use of U.S. + +person information. AFS{+SH/7NF) + +## Yi. Discovery And "Scrubbing" Issues {(Ts//Sh/Nf) + +Although Stellar Wind was conceived and implemented as an intelligence-gathering program, it was inevitable that the information from this program would intersect with the Department's prosecutorial funetions, both iri criminal cases brought in federal courts and in seeking FISA orders from the FISA Court. We found that the limited number of Department read-ins also had adverse conseguences on issues related to these Department functions. (FS/+5FEWSHFOEF) +One such issue concerned the Department's compliance with discovery obligations in international terrorism prosecutions, which we discuss in Chapter Seven. We determined that the Department was aware as early as that information collected under Stellar Wind could have: + bl, b3 +implications for the Department's litigation responsibilities under Federal Rule of Criminal Procedure 16 and Brady v. Maryland, 373 U.S. 83 (1963), +(T +LTI ML L LRT +L +L OCLNEY +O +R +T T TN +bl, b3, be, b7C, b7E +No Justice Department attorneys with terrorism prosecution responsibflifieswere read into the Stellar Wind program until mid-2004, and as a result the Department continued to lack the advice of attorneys who were best equipped to identify and examine the discovery issues in connection with the program. + +Since that time the Department has taken steps to respond, on a case-b discovery motions + +( ( +Tk +\ r"sponses inVoh}e the use of the Classified Information Procequres Act, 18 U.S.C. App. 3, to file ex parte in camera pleadings with However; the Department of Justice continues to lack a compreherisive 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 information in international terrorism prosecutions. We also recommend that the Department carefully consider whether it must re-examine past cases 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 recornmend that the Department, in coordination with the NSA, implement a procedure to identify Stellar Wind-derived 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's discovery obligations under Rule 16 and Brady. + +In addition, we examined the issue of the Department's use of Stellar Wind-derived information in FISA applications. We believe it was foreseeable that some Stellar Wind-derived information would be contained in the FISA applications filed by the Department's Office of Intelligence Policy and Review (OIPR). OIPR Counsel Baker believed, and we agree, that it' would have been detrimental to this relationship if the Court learned that information from Stellar Wind was included in FISA applications without the Court being told 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, +' +ultimately in January 2003 agreed to read in a single judge in January 2002 +(Presiding Judge Lamberth, followed by Presiding Judge Kollar-Kotelly in May 2002). 1ESHSTEW-SHHOSANE - +The "scrubbing" procedures imposed by the Court and implemented by Baker to account for Stellar Wind-derived information in international terrorism FISA applications created concerns among some OIPR attorneys about the unexplained changes being made to their FISA applications. + +These scrubbing procedures also substantially altered the assignment of cases to FISA Court judges for nearly 3 years. + +We concluded that once Stellar Wind began to affect the functioning of the FISA process shortly after the prograim's inception, the number of OIPR staff and FISA Court judges read into Stellar Wind should have increased. + +Instead, read-ins were limited to a sirigle OIPR official for over two years and to-the Presiding Judge of the FISA Court for a period of four years. {FS/STENAFSHAOCNF) +The Justice 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 FISA +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. (IS//STIW//ST//QC/NE + +## Vii. Gomzales's Statements (U) + +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 constitute a false,