NYT: Declassified Report Shows Doubts About Value of N.S.A.'s Warrantless Spying

http://www.nytimes.com/2015/04/25/us/politics/value-of-nsa-warrantless-spying-is-doubted-in-declassified-reports.html

APRIL 24, 2015

Declassified Report Shows Doubts About Value of N.S.A.'s Warrantless Spying

By CHARLIE SAVAGE

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 [1] 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 [2] 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 [3] 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 [4] about Stellarwind and similarly censored important details.

Nevertheless, it is public knowledge, [5] 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 [6] 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. [7]

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.

[1] http://www.nytimes.com/interactive/2015/04/25/us/25stellarwind-ig-report.html

[2] http://www.justice.gov/oig/special/s0907.pdf

[3] http://www.nytimes.com/2005/12/16/politics/16program.html

[4] http://www.nytimes.com/2014/09/07/us/redactions-in-us-memo-leave-doubts-on-data-surveillance-program.html

[5] http://www.nytimes.com/2013/06/28/us/nsa-report-says-internet-metadata-were-focus-of-visit-to-ashcroft.html

[6] https://www.documentcloud.org/documents/718895-igreport.html

[7] http://www.nytimes.com/2011/08/24/us/24fbi.html