The four programs under the PSP involved the collection of Internet and telephone metadata and content. The Internet metadata program “was terminated in 2011 because it didn’t have the operational impact that we needed,” Alexander said Thursday while speaking at a cyber conference in Baltimore. Alexander said that the administration and Congress supported the shutdown and the “data was purged.”
Greg Nojeim, senior counsel and civil liberties specialist at the Center for Democracy and Technology (CDT), said such a program was not supposed to happen under FISA.
“The document shows that the president authorized, and the NSA conducted, the very electronic surveillance that Congress enacted FISA to preclude,” Nojeim said. “No court orders. No finding of probable cause. In fact, the FISA court doesn’t even get briefed about it until four months later. Due process under this program at inception was just a handshake between the head of the NSA and the vice president’s counsel.”
The program was born at a time when the nation was experiencing its most acute security crisis since the Pearl Harbor attacks 60 years earlier. In the hours after Sept. 11, 2001, the NSA scrambled to determine how to use its surveillance tools within a legal framework that tightly proscribed domestic intelligence collection.
“General Hayden was operating in a unique environment in which it was a widely held belief that additional attacks on U.S. soil were imminent,” the report said.
NSA officials found “collection gaps” that left the country vulnerable. “NSA believed that the FISA process was unable to accommodate the number of terrorist targets or the speed with which they changed their communication,” the report said, adding that the average wait for FISA approval was four to six weeks.
Three days after the attacks, Hayden approved the targeting of terrorist-associated foreign telephone numbers on communication links between the United States and foreign countries, the report said.
On Oct. 2, Hayden briefed members of the House Permanent Select Committee on Intelligence and Senate Select Committee on Intelligence about his decision to allow expanded data collection.
The president issued a memo on Oct. 4 that authorized “specified electronic surveillance” for a “limited period” to detect and thwart terrorism inside the United States. The order delegated authority to the secretary of defense, who passed on the authority to Hayden.
Under the initial authorization, as long as the NSA had probable cause to think one of the people communicating was in Afghanistan or was engaged in planning an act of international terrorism, the agency could collect communications data outside the FISA process. “The majority of known terrorist email addresses that NSA has tracked are hosted on U.S.-based providers,” the report said.
Days later, the PSP’s metadata analysis center was a round-the-clock operation with 20 analysts and software developers. Many of them were “former Russian traffic analysts,” the report said. Within a week, 90 NSA employees were clear to view the PSP material.
The “PSP content collection” ultimately targeted 3,018 people in the United States from Oct. 4, 2001, to Jan. 17, 2007, the report said. Targeting of foreign nationals was broadened beyond Afghanistan shortly after the initial authorization. Of the targets, 34,646, or 92 percent, were foreign.
The report notes: “NSA leadership considered selectors for targets located in the United States to be extremely sensitive. As such, processes were set up to ensure strict compliance with the terms of the Authorization.”
But the sweep of the PSP went beyond content and included the collection of vast amounts of metadata. Among the legal assumptions was that “metadata was not constitutionally protected” and not as sensitive as content.
“Nevertheless, processes were set up to document requests for metadata analysis and justifications for conducting such analysis under Program authority,” the report said.
The report does not specify how much metadata was collected, but it pointed out that 37 billion minutes in telephone conversations originated or ended in the United States in 2003 alone.
“NSA determined that under the Authorization it could gain access to approximately 81% of the international calls into and out of the United States through three corporate partners,” the report said.
Barton Gellman, Carol Leonnig, Kimbriell Kelly and Sari Horwitz contributed to this report.