The Bush administration’s post-Sept. 11 surveillance efforts went beyond the widely publicized warrantless wiretapping program, a government report disclosed Friday, encompassing additional secretive activities that created “unprecedented” spying powers.
The report also raised new questions about how the Bush White House kept key Justice Department officials in the dark as it launched the surveillance program.
In a move that it described as “extraordinary and inappropriate,” the report said the White House relied on a single, lower-level attorney in the Justice Department’s Office of Legal Counsel for assessments about the programs’ legality.
The attorney, John Yoo, a young George W. Bush appointee with close ties to the president’s inner circle, wrote a series of memos legally blessing the program even though his superiors and most top officials were uninformed about it.
The report was compiled at the request of Congress by five government agency watchdogs: the inspectors general of the Justice Department, Pentagon, CIA, Directorate of National Intelligence and National Security Agency.
It represents the most detailed public disclosure of the existence of secret surveillance efforts beyond the warrantless wiretapping program, saying the overall package of efforts came to be known in the Bush administration as the “President’s Surveillance Program.”
However, the report did not describe the other programs or explain how they worked.
“All of these activities were authorized in a single presidential authorization,” the report said, referring to the warrantless wiretapping as a “terrorist surveillance program” and the undisclosed efforts as “other intelligence activities.”
“The specific details of the other intelligence activities remain highly classified,” the report said.
The inspectors general interviewed more than 200 top officials and front-line agents in defense and intelligence agencies, and said views of the effectiveness of the warrantless wiretapping and other still- secret activities were mixed.
While many agents thought the efforts filled a gap in intelligence efforts, others “had difficulty evaluating the precise contribution of the President’s Surveillance Program to counter-terrorism efforts because it was most often viewed as one source among many.”
The inspectors general concluded that, even though Congress has adopted changes in the Foreign Intelligence Surveillance Act legalizing some of the activities, the information they produce “should be carefully monitored.”
The report also provided a comprehensive and official narrative concerning the selective and often confrontational way in which the Bush administration sought and procured legal authorization for its post-Sept. 11 programs.
Eventually, the surveillance program and the Justice Department’s role in it were so controversial that the deputy attorney general, James B. Comey, and FBI Director Robert S. Mueller III both threatened to resign in 2004 because they believed the program was illegal.
The dispute resulted in an infamous showdown that year in the hospital room of then-Atty. Gen. John Ashcroft, when Comey raced up the hospital steps to prevent White House Counsel Alberto R. Gonzales and Chief of Staff Andrew H. Card Jr. from persuading the heavily medicated attorney general to sign off on an extension of the program.
Legal experts and lawmakers said the latest findings raised disturbing questions about the actions of the Bush administration and pointed to the need for ways to hold participants accountable.
“I am glad the American people can finally see for themselves what happens when a handful of senior officials -- who think they know better than the courts, the U.S. Justice Department and Congress -- decide to rewrite the law in secret,” said Senate Intelligence Committee member Ron Wyden (D-Ore.). “This report allows the American people to see how senior Bush administration officials concocted the program first and came up with its creative legal justifications later.”
Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said the report added a sense of urgency to establishing a nonpartisan “commission of inquiry” to probe Bush administration programs. President Obama opposes such a commission.
A former Bush administration official who participated in the program said the inspectors’ report failed to take into account that the Justice Department and the White House at the time consistently argued that the president “has authority to conduct electronic surveillance to protect the national security from foreign threats, independent of Congress.”
Speaking on condition of anonymity because of the political and legal sensitivity, the official said the programs resulted from concerns in the aftermath of Sept. 11.
“The government was reeling, dealing with a wide range of national security initiatives,” the official said. “This wasn’t done out of any effort to aggrandize the president’s powers, it was done to protect the country from an attack -- which everyone at the time thought was going to happen -- at the same time without blowing the technology advantages we had.”
The warrantless wiretapping was disclosed in 2005 as the result of articles in the New York Times. Under that program, the NSA circumvented federal laws to intercept, without warrants, international communications suspected of involving terrorists.
Tracing the development of the surveillance activities, the report said the program began in October 2001, weeks before Yoo’s first memo justifying its use on Nov. 2.
The report depicted White House efforts that appeared designed to ensure approval. All but three Justice Department officials were unaware of the spying effort in its early years, even though the department’s stamp of approval was used to authorize the programs, the report said.
Instead, the White House communicated directly and almost exclusively with Yoo, who produced legal work about the surveillance program “that at a minimum was factually flawed,” the report said.
“Deficiencies in the legal memoranda became apparent once additional Department of Justice attorneys . . . sought a greater understanding of the PSP’s operation,” the report said.
At that point, disputes broke out between the Justice Department and White House, leading to the 2004 showdown at Ashcroft’s sickbed.
The report focuses much of its attention on Yoo, a deputy assistant attorney general in the Office of Legal Counsel from 2001 to 2003.
Yoo has become a lightning rod for criticism because of legal opinions he issued on a range of national security matters, later repudiated as unprofessional and possibly illegal.
Some of those opinions, including some on harsh interrogation techniques such as waterboarding, were withdrawn by Republican appointees who followed Yoo at the Justice Department. Yoo would not comment Friday on the report.
Only two other Justice Department officials were “read in” to the NSA program in its early years, the report said -- Ashcroft and intelligence policy lawyer James Baker.
Ashcroft gave his legal authorization for the first 2 1/2 years based on a “misimpression” of what kind of activities the NSA was conducting, the inspectors general found.
In 2004, with the Justice Department balking at approving further extensions of the program, Bush signed a new authorization based on a legal certification by Gonzales, still the White House counsel.
Later, the report said, as attorney general, Gonzales gave “inaccurate” and “misleading” congressional testimony when he said the department had not expressed legal concerns about the program in 2004.
“The White House gamed the system,” said Jameel Jaffer of the American Civil Liberties Union’s National Security Project, “by ensuring that the only people read into the program . . . would twist the law and arrive at the legal conclusions that the White House wanted.”