Earlier this week, we published a list of missing documents related to the NSA warrantless surveillance program as part of EFF's celebration of Sunshine Week, and began to analyze what some of these missing documents might be.

Today, we continue by examining the context surrounding an intriguing 2002 memo known as OLC 129. According to a declaration filed by Deputy Assistant Attorney General Steven Bradbury:

OLC 129 [is] a nine-page memorandum, dated October 11, 2002, from a Deputy Assistant Attorney General in OLC to the Attorney General prepared in response to a request for OLC’s views concerning the legality of certain communications intelligence activities.

In October 2002, John Yoo was the only Deputy Assistant Attorney General in the Office of Legal Counsel (OLC) who was read-in to the Program, and John Ashcroft was the Attorney General.

Director of National Intelligence Michael McConnell noted in a letter to Senator Specter that the “details of the activities [of the NSA program] changed in certain respects over time and I understand from the Department of Justice these activities rested on different legal bases."

This memo was written almost a year after the initial memos on the Program, and its timing does not fit a pattern of regular reviews. The most recent NSA surveillance memo prior this one was the February 8, 2002 Memo to the Department of Defense about "the legality of certain hypothetical activities," and the next most recent was two-page memo from January 2002 "which relates to the Attorney General’s review of the legality of the President’s order authorizing the TSP in the course of considering that program’s reauthorization." This suggests that, in October 2002, there was a new question arising from the Program's operation.

Former Senator Graham was the chair of the Senate Intelligence Committee until January 3, 2003, and attended at least four briefings on the NSA surveillance program, starting in October 2001. According to the Washington Post, Graham said that Administration briefers told him in October 2002 that President Bush had authorized the NSA to tap into the stream of global telecommunications passing through junctions on U.S. territory, allowing the NSA to intercept “conversations that . . . went through a transit facility inside the United States.”

When interviewed on CNN Situation Room, Graham explained:

the meeting that I attended focused on the fact that there were telephone communications from one foreign site to another that were now being sent, transited through the United States. … The question was, could the NSA collect those intercepts, since technically they were inside the United States. The administration felt they should be able to do so.

On October 17, 2002, NSA Director Michael Hayden said in testimony that "last week we cemented a deal with another corporate giant to jointly develop a system to mine data that helps us learn about our targets."

Kim Zetter reported in Salon that "[i]n a pivotal network operations center in metropolitan St. Louis, AT&T has maintained a secret, highly secured room since 2002 where government work is being conducted. ... details provided by the two former workers about the Bridgeton room bear the distinctive earmarks of an operation run by the National Security Agency, according to two intelligence experts with extensive knowledge of the NSA and its operations."

As set forth in a declaration by former AT&T employee Mark Klein, the NSA began preparing AT&T employees for a “special job” in 2002. AT&T’s document setting forth the procedure for splitting fiber optic cable into the “SG3 Secure Room” at the Folsom Street Facility was written on December 10, 2002. In January 2003, AT&T finished creating the SG3 Secure Room, and wrote two more documents providing “cut in and test procedure” for the fiber optic splitter. The work order for the San Francisco room came from AT&T's Bridgeton network operations center.

OLC 129 could shed critical light on the legal analysis behind the dragnet surveillance program where the nation’s telecommunications companies violated the law and the privacy of their customers by collaborating with the government in a massive, illegal program to wiretap and data-mine Americans' communications. We urge the Obama Administration to release this memo.

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