Declassified Report Shows Doubts About Value of N.S.A.’s Warrantless Spying
Declassified Report Shows Doubts About Value of N.S.A.’s
Warrantless Spying
By CHARLIE SAVAGE APRIL 24, 2015
WASHINGTON — The secrecy surrounding the National
Security Agency’s post-9/11 warrantless surveillance and bulk data collection
program hampered its effectiveness, and many members of the intelligence
community later struggled to identify any specific terrorist attacks it
thwarted, a newly declassified document shows.
The document is a lengthy report on a once secret N.S.A.
program code-named Stellarwind. The report was a joint project in 2009 by
inspectors general for five intelligence and law enforcement agencies, and it
was withheld from the public at the time, although a short, unclassified
version was made public. The government released a redacted version of the full
report to The New York Times on Friday evening in response to a Freedom of
Information Act lawsuit.
Shortly after the terrorist attacks on Sept. 11, 2001,
President George W. Bush secretly told the N.S.A. that it could wiretap
Americans’ international phone calls and collect bulk data about their phone
calls and emails without obeying the Foreign Intelligence Surveillance Act.
Over time, Stellarwind’s legal basis evolved, and pieces of it emerged into
public view, starting with an article in The Times about warrantless
wiretapping in 2005.
The report amounts to a detailed history of the program.
While significant parts remain classified, it includes some new information.
For example, it explains how the Bush administration came to tell the chief
judge of the Foreign Intelligence Surveillance Court at the time of the Sept.
11 attacks, Royce C. Lamberth, about the program’s existence in early 2002.
James A. Baker, then the Justice Department’s top
intelligence lawyer, had not been told about the program. But he came across
“strange, unattributed” language in an application for an ordinary surveillance
warrant and figured it out, then insisted on telling Judge Lamberth. Mr. Baker
is now the general counsel to the F.B.I.
It also says that Mr. Baker developed procedures to make
sure that warrant applications using information from Stellarwind went only to
the judges who knew about the program: first Judge Lamberth and then his
successor, Judge Colleen Kollar-Kotelly.
The White House would not let Judge Kollar-Kotelly keep a
copy of a letter written by a Justice Department lawyer, John C. Yoo,
explaining the claimed legal basis of the program, and it rejected a request by
Attorney General John Ashcroft to tell his deputy, Larry Thompson, about the
program.
The report said that the secrecy surrounding the program
made it less useful. Very few working-level C.I.A. analysts were told about it.
After the warrantless wiretapping part became public, Congress legalized it in
2007; the report said this should have happened earlier to remove “the
substantial restrictions placed on F.B.I. agents’ and analysts’ access to and
use of program-derived information due to the highly classified status” of
Stellarwind.
In 2003, after Mr. Yoo left the government, other Justice
Department officials read his secret memo approving the program — most of which
has not been made public — and concluded that it was flawed.
Among other things, the report said, Mr. Yoo’s reasoning
was premised on the assumption that the surveillance act, which requires
warrants for national security wiretaps, did not expressly apply to wartime
situations. His memo did not mention that a provision of that law explains how
it applies in war: The warrant rule is suspended for the first 15 days of a
war.
The report has new details about a dramatic episode in
March 2004, when several Justice Department officials confronted Alberto R.
Gonzales, the White House counsel at the time, in the hospital room of Mr.
Ashcroft over the legality of the program. The officials included Mr.
Thompson’s successor as deputy attorney general, James B. Comey, who is now the
F.B.I. director, and the new head of the office where Mr. Yoo had worked, Jack
Goldsmith.
The showdown prompted Mr. Bush to make two or three changes
to Stellarwind, the report said. But while the report gives a blow-by-blow
account of the bureaucratic fight, it censors an explanation of the substance
of the legal dispute and Mr. Bush’s changes.
Last year, the Obama administration released a redacted
version of a memo that Mr. Goldsmith later wrote about Stellarwind and
similarly censored important details.
Nevertheless, it is public knowledge, because of
documents leaked by the former intelligence contractor Edward J. Snowden, that
one part of the dispute concerned the legality of the component of Stellarwind
that collected bulk records about Americans’ emails.
Mr. Snowden’s disclosures included a working draft
version of the N.S.A. inspector general’s contribution to this report, roughly
50 pages long. The final document — with many passages redacted as still
classified — was part of Friday’s release.
Another part of the newly disclosed report provides an
explanation for a change in F.B.I. rules during the Bush administration.
Previously, F.B.I. agents had only two types of cases: “preliminary” and “full”
investigations. But the Bush administration created a third, lower-level type
called an “assessment.”
This development, it turns out, was a result of
Stellarwind. F.B.I. agents were asked to scrutinize phone numbers deemed
suspicious because of information from the program. But the agents were not
told why the numbers had been deemed suspicious, only “not to use the
information in legal or judicial proceedings.”
That made some agents uncomfortable, and it was not clear
how such mysterious leads fit into their rules for investigations. The Justice
Department created the new type of investigation, initially called a “threat
assessment,” which could be opened with lower-grade tips. Agents now use them
tens of thousands of times a year.
But little came of the Stellarwind tips. In 2004, the
F.B.I. looked at a sampling of all the tips to see how many had made a “significant
contribution” to identifying a terrorist, deporting a terrorism suspect, or
developing a confidential informant about terrorists.
Just 1.2 percent of the tips from 2001 to 2004 had made
such a contribution. Two years later, the F.B.I. reviewed all the leads from
the warrantless wiretapping part of Stellarwind between August 2004 and January
2006. None had proved useful.
Still, the report includes several redacted paragraphs
describing “success” cases.
A version of this article appears in print on April 25,
2015, on page A12 of the New York edition with the headline: Declassified
Report Shows Doubts About Value of N.S.A.’s Warrantless Spying.
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