'Inappropriate' Secrecy Hurt Surveillance Effort, Report Says

By Carrie Johnson and Ellen Nakashima
Washington Post Staff Writers
Saturday, July 11, 2009

"Extraordinary and inappropriate" secrecy about a warrantless eavesdropping program undermined its effectiveness as a terrorism-fighting tool, government watchdogs have concluded in the first examination of one of the most contentious episodes of the Bush administration.

A report by inspectors general from five intelligence agencies said the administration's tight control over who learned of the program also contributed to flawed legal arguments that nearly prompted mass resignations in the Justice Department five years ago.

The program "may have" contributed to successful counterterrorism efforts, some intelligence officials told the investigators. But too few CIA personnel knew of the highly classified program to use it for intelligence work, the report stated, while at the FBI, the program "played a limited role," with "most . . . leads . . . determined not to have any connection to terrorism."

The surveillance program, which intercepted domestic communications linked to people with suspected ties to al-Qaeda, was one of the Bush administration's most secretive and, eventually, controversial intelligence efforts. After the New York Times disclosed its existence in December 2005, the program became a symbol of the administration's expansive view of executive authority, especially regarding national security.

"The surveillance program was overly secret and its importance overblown," concluded Gregory Nojeim, senior counsel of the privacy advocacy organization Center for Democracy and Technology, after reading the report.

The release yesterday of the inspectors general's summary findings renewed questions about the effectiveness of congressional oversight of intelligence activities, after a week of back-and-forth between House members and the CIA over an unrelated classified program that has been squashed by the new administration. The IGs reported that lawmakers received 49 briefings on the surveillance program between October 2001 and January 2007.

House Speaker Nancy Pelosi (D-Calif.) said: "The legal analysis under which the program operated for years 'entailed ignoring an act of Congress, and doing so without full congressional notification.' No president should be able to operate outside the law."

The report also inspired fresh calls from congressional Democrats, including the chairmen of the House and Senate Judiciary committees, to establish a commission to explore the Bush administration's handling of its anti-terrorism efforts. The lawmakers pointed out that several key Bush administration figures refused to cooperate with the inspectors general, who lacked the authority to compel testimony.

Significant elements of the initiative are still unclear. But an unclassified version of the inspectors general's report offers new details about its origins and its advocates.

The clandestine program was born in the days after Sept. 11, 2001, when then-CIA Director George J. Tenet asked the National Security Agency's chief, Lt. Gen. Michael V. Hayden, "what he might do with more authority," the report said. A short while later, President George W. Bush signed a single document paving the way for the plan.

For the first few years, then-Attorney General John D. Ashcroft and two senior aides -- Office of Legal Counsel lawyer John C. Yoo and intelligence policy lawyer James Baker -- were the only Justice Department officials made aware of the initiative, bypassing many of the latter men's superiors, the unclassified summary reported for the first time.

One former department lawyer, Jay S. Bybee, told investigators that he was Yoo's supervisor but that he was never read into the program and "could shed no further light" on how Yoo came to be the point man on memos that blessed its legality. By following this route, investigators say, the memos avoided a rigorous peer-review process.

The White House determined access to the program, a former Bush official said. The report said that Yoo prepared hypothetical documents in September and early October 2001 before writing a formal memo in November, after Bush had already authorized the initiative.

In that memo, Yoo concluded that existing surveillance law could not "restrict the president's ability to engage in warrantless searches that protect the national security," and that "unless Congress made a clear statement . . . that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid such a reading," according to the report.

But when that analysis reached higher-level officials in the Justice Department by late 2003 and early 2004, lawyers were troubled by the conclusions. They grew convinced that the plan may have run afoul of the law and ignored key Supreme Court rulings on the subject of executive-branch power.

The inspectors general report alleged that Yoo "did not accurately describe the scope" of other intelligence activities in what was known as the President's Surveillance Program, presenting "a serious impediment to recertification of the program." Traditionally, in reviews by the Office of Legal Counsel, lawyers rely on a description of classified programs from the agencies that carry them out, the former Bush official said.

Disputes prompted a series of meetings in March 2004, including lobbying by the White House, to try to persuade the Justice Department to temporarily continue the surveillance while any legal problems with it were being fixed. On March 9, 2004, intelligence officials and Vice President Richard B. Cheney met to discuss the issue without inviting Justice Department leaders.

Cheney suggested that Bush "may have to reauthorize without [the] blessing of DOJ," according to previously unreported notes taken by FBI Director Robert S. Mueller III. Mueller told investigators he would have had a problem with that approach and raised the prospect that the bureau would have withdrawn from the program.

The resignation threats came the next day, after a dramatic visit by then-White House chief of staff Andrew H. Card Jr. and then-White House counsel Alberto R. Gonzales to the hospital bedside of an ailing Ashcroft. Gonzales told the inspectors general that Bush instructed him to go to the hospital to obtain Ashcroft's signature on a document that would green-light continuation of the program.

An FBI agent's notes stated that Card and Bush called the hospital room, and that Ashcroft's wife had taken the call. Card would not sit for an interview with the IGs, the report said.

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