Inspectors General Report on Warrantless Wiretapping

Today, the Inspectors General of five government agencies released the unclassified version of a report on the Bush Administration’s warrantless domestic surveillance program. The report was required by the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008, which was signed into law one year ago today.

The IG report has been carefully scrubbed so that it reveals as little new information as possible about the illegal surveillance of ordinary Americans. Given the wide range of information already publicly known about the program, it is disappointing that today’s report is not more informative.

For example, as a candidate for President, then-Senator Barack Obama said there was “little doubt that the Bush Administration, with the cooperation of major telecommunications companies, has abused that authority and undermined the Constitution by intercepting the communications of innocent Americans without their knowledge or the required court orders.” His administration’s unclassified report, however, does not discuss the role that telecommunications companies played in this illegal surveillance. Indeed, the IG report provides less information on the telecoms’ role than the Senate Intelligence Committee report issued prior to the law.

Nevertheless, the IG report does confirm that the warrantless surveillance involved “unprecedented collection activities,” beyond the surveillance program of Al-Qaeda touted by President Bush. The report described the scope of the additional spying only as “Other Intelligence Activities.” Collectively, the so-called terrorist surveillance program and the Other Intelligence Activities were referred to as the “President’s Surveillance Program.” The report does not use the program’s code name, Stellar Wind, which remains classified. Given the scope of the Nixon Administration’s illegal spying (which led to FISA in the first place), it is sobering to consider that the Other Intelligence Activities were unprecedented.

While the IG report does not offer an opinion about the legal issues, it does condemn the process, where the program was so tightly held that only a few lawyers reviewed the legal issues.

The report damns the effectiveness of the program with faint praise. The FBI said that although the program "had value in some counterterrorism investigations, it generally played a limited role in the F.B.I.’s overall counterterrorism efforts.” While the administration officials interviewed opined the President’s Surveillance Program was a useful tool to have available, the report also shows that most officials in the intelligence community “had difficulty citing specific instances where [the surveillance] had directly contributed to counterterrorism successes.”

The IG report provided a dramatic summary of the dispute in March 2004, when dozens of Bush Administration officials nearly resigned in protest over the Other Intelligence Activities. The Department of Justice could find no legal support for these activities, and found that the factual basis for prior legal opinions was substantially incorrect.

The report also examined the testimony of then Attorney General Alberto Gonzales about the TSP, concluding “that Gonzales did not intend to mislead Congress, but ... his testimony was confusing, inaccurate, and had the effect of misleading those who were not knowledgeable about the program.”

Related Issues: NSA Spying

Related Cases: Hepting v. AT&T, Jewel v. NSA

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