Last Friday marked the release of a report on the President's Surveillance Program (PSP), the report that those of us in the surveillance policy world have been waiting for with bated breath since, well, the FISA Amendments Act passed last summer and mandated its creation.
The report, jointly drafted by the Offices of Inspectors General for the Department of Defense, the Department of Justice, the CIA, the National Security Agency, and the Office of the Director of National Intelligence, was supposed to finally shed some light on President Bush's warrantless wiretapping program that the New York Times exposed in December 2005. Well, the Inspectors General (IGs) basically told us, "Don't hold your breath." Major oversight FAIL.
First of all, while the report does include some new information gleaned from interviews with officials involved in the program, the report primarily cites already public sources, like congressional testimony, to tell a story we already know.
Moreover, the report fails to address a number of key questions:
- How many Americans were spied on under the PSP? And, what was done with the information gleaned from that surveillance?
- How did the program operate from January to May 2007 with FISA Court approval? And, importantly, why was that approval revoked in May 2007?
- In August 2007, CIA Director Hayden prodded Congress into hurriedly passing the Protect America Act, the first Congressional endorsement of wireless wiretapping, during closed-door Congressional briefings, now known to be intentionally based on false intelligence that suggested a potential attack on Capitol Hill in August 2007. What were the facts surrounding those briefings?
- How has the 2008 FISA Amendments Act, which legalized warrantless wiretapping beyond the scope of the President's Program, been implemented? And, how is the information collected on innocent Americans pursuant to that Act being used? (The ACLU has challenged the constitutionality of the new law, which, as the IG report notes, gives "the government even broader authority" than the president's warrantless surveillance program. We'll be in federal court in New York next week arguing against the new law's unprecedented expansion of surveillance authority.)
The report did come up with 1 1/2 useful revelations. The first, which should come as no surprise, is that the information obtained through the program did not turn out to be useful. Many government officials, agents, and analysts told the IGs that "most PSP leads were determined not to have any connection to terrorism" (p. 32). They argued instead that "the mere possibility of the leads producing useful information" justified the program (p. 32), directly contradicting the previous administration's assertions that the program was critical. Additionally, interviewees explained that information derived from the program was "vague or without context," leading analysts to rely on more useful tools (p.34). So, not only was the program illegal, but it did relatively little to make the country any safer.
Epic surveillance FAIL.
No wonder the White House told the CIA to add a paragraph to the end of each of its threat assessments stating that terrorists possessed the intent and capability to stage terrorist attacks within the United States (p. 7). After all, "if a threat assessment identified a threat against the United States the PSP was likely to be renewed" (p. 9). Conclusion: when the evidence does not support your program, make stuff up so the program can continue. Brilliant.
And, then the half-revelation, which should also come as no surprise: The IGs found former Attorney General Alberto Gonzales' testimony before Congress claiming that Justice Department attorneys did not express legal concerns with the Bush program to be "incomplete," "confusing," and "inaccurate" (p. 37). We told you so.
The IGs conclude that "the retention and use by the [Intelligence Community] organizations of information collected under the PSP and FISA should be carefully monitored" (p. 38). We couldn't agree more. This report left too many unanswered questions, and it's time for Congress to step in and find out the truth. We therefore urge Congress to form a Select Committee to finally learn what went right, what went wrong, and what is still going on under our national security policies related to surveillance, as well as to torture and detention. And, when Congress receives testimony that is "incomplete," "confusing," or "inaccurate," they have a duty not to stop there, but instead to ask more questions and demand complete information.