I was a bit disappointed by the number of stories about the IG Report on the domestic surveillance program last week that claimed the report revealed the program was larger or more extensive than previously admitted or known. After all, the report itself notes,

The specific details of the Other Intelligence Activities remain highly classified, although the Attorney General publicly acknowledged the existence of such activities in August 2007.

Moreover, the "Other Intelligence Activities" have in fact been reported. Just days after the program was initially exposed, for example, Lichtblau and Risen reported,  

The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.

The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system’s main arteries, they said.

As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.[my emphasis]

In other words, those two aspects of the program–massive collection of data directly from telecommunication circuits and subsequent data mining of that data–has been reported almost from the first reporting on this program. And EFF wrote a 63-page brief collecting the many acknowledgments, from both Administration officials and members of Congress briefed on the program, of the expansive collection and data mining aspects of the program.

The "Other Intelligence Activities" Were the Source of the March 10 Hospital Confrontation

I think it important to emphasize that we do know what these "Other Intelligence Activities" (OIA) are because the report confirms that these OIAs were the source of the March 10 hospital Confrontation.

We’ve had confirmation that the collection and data mining aspects of the program were the source of the confrontation for two years. 

A 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program.

But the IG Report makes that explicit (though it doesn’t refer explicitly to collection and data mining). While Goldsmith and Philbin found a (legally unsupportable) way to fix Yoo’s Article II basis for the program, they couldn’t find a way to justify the OIAs. 

[In 2003] Goldsmith and Philbin became concerned that this revised analysis [making AUMF, and not Yoo's more expansive Article II argument, the basis for the program] would not be sufficient to support the legality of certain aspects of the Other Intelligence Activities that the President had authorized under the PSP.

Goldsmith and Philbin remained unable to legally justify the OIAs on the day of the hospital confrontation.

Goldsmith, Philbin, and Comey met in the early afternoon of March 10, 2004, to discuss the meeting at the White House the day before and how DOJ should proceed. Goldsmith and Philbin confirmed their position to Comey that some of the Other Intelligence Activities under the PSP could not be legally supported and would have to be changed or shut down.

Addington wrote the OIAs into his March 11 reauthorization for the program, signed by Alberto Gonzales.

The March 11 Authorization also differed markedly from prior Authorization in three other respects.

[snip]

It clarified the description of certain Other Intelligence Activities being conducted under the PSP to address questions regarding whether such activities had actually been authorized explicitly in prior Authorizations. It also stated that in approving the prior President Authorizations as to form and legality, the Attorney General previously had authorized the same activities now being approved under the March 11 Authorization.

Goldsmith continued to maintain that these OIAs could not be legally justified.

In the days that followed [March 12, 2004], Goldsmith continued to express doubt that a viable legal rationale could be found for some of the Other Intelligence Activities being conducted under the PSP.

On March 16, 2004 Comey drafted a memorandum to White House Counsel Gonzales setting out his advice to the President. According to the memorandum, Comey advised that DOJ remained unable to find a legal basis to support certain Other Intelligence Activities that had been authorized as part of the program and that such activities should be discontinued immediately. Comey cautioned that he believed some ongoing activities under the program raised "serious issues" about congressional notification, "particularly where the legal basis for the program is the President’s decision to assert his authority to override an otherwise applicable Act of Congress."

And the Administration ultimately discontinued these OIAs.

…on March 17, 2004, the President decided to modify certain PSP intelligence-gathering activities and to discontinue certain Other Intelligence Activities that DOJ believed were legally unsupported.

While I’m not convinced those OIAs weren’t restored as soon as Goldsmith resigned and Comey turned his back, the story the IG Report tells is that Goldsmith, Philbin, and Comey identified two legal problems with the program. First, Yoo’s basis of the program on Article II power was not sustainable; Goldsmith and Philbin got around that by claiming that the AUMF authorized the President to ignore FISA. But the other problem–the one that almost led them to resign–was that there was no basis for some of the OIAs. And, the IG Report claims, their threats to resign led to the Administration to cease at least some parts of those OIAs.

Specific Act of Congress

One reason we need to focus on the specific language about these OIAs is because it suggests why and how Comey found the program to be illegal.

Comey told the DOJ OIG that of particular concern to him and Goldsmith was the notion that Yoo’s legal analysis entailed ignoring an act of Congress, and doing so without full congressional notification.

That is, something about the OIAs–the massive collection and data mining–violated the law in a way that (according to Goldsmith and Philbin and Comey) the wiretapping of people alleged to have ties to al Qaeda did not.

There are, presumably, several reasons that’s true. (And I certainly invite the lawyers to weigh in here.)

First, the entire basis of the program was a broad interpretation of "reasonable" with regards to searches. It would take one thing to argue that it was "reasonable" to search the communications of someone whom John Brennan had declared to be a terrorist. It’s an entirely different thing to search the communications of someone whom John Brennan hasn’t even reviewed.

In addition, as the EFF suit makes clear, the search of ordinary citizens’ communications implicates two other laws: the Electronic Communication Protection Act and the Wiretap Act (see this post for my NAL discussion of these laws). 

Finally, though, the language the IG Report uses to discuss the problems with the OIAs and the timing of the revolt makes me more convinced than ever that Congress’ explicit prohibition on data mining was a key part of the problem. As I’ve reported (and seem to, still, be the only one aside from joejoejoe to have reported in this context), Congress explicitly defunded the data mining of American citizens in the 2004 Defense Authorization.  

Sec. 8131.

[snip]

(b) None of the funds provided for Processing, analysis, and collaboration tools for counterterrorism foreign intelligence shall be available for deployment or implementation except for:

(1) lawful military operations of the United States conducted outside the United States; or

(2) lawful foreign intelligence activities conducted wholly overseas, or wholly against non-United States citizens.

This was (like the ECPA, Wiretap Act, and FISA), an Act of Congress–though Bush blew it off with a signing statement. Between the time Congress passed this prohibition in fall 2003 and the time of the conflict, the Administration did not brief Congress (indeed, the appear to have missed a regular briefing in January 2004, shortly after the Appropriation Act would have gone into effect). Since Yoo was gone by the time Congress passed this appropriation, they don’t seem to have written a new opinion factoring in the appropriation. So this prohibition would seem to represent two problems for Goldsmith’s and Philbin’s reliance on AUMF rather than Article II powers. Looking again at Comey’s statement to the DOG OIG…

Comey cautioned that he believed some ongoing activities under the program raised "serious issues" about congressional notification, "particularly where the legal basis for the program is the President’s decision to assert his authority to override an otherwise applicable Act of Congress."

First, the Appropriation Act was passed (obviously) after the AUMF, which presumably clarified Congress’ intent that the Administration could not data mine US person communications. Furthermore, the legality of the program would come down to whether or not Bush’s signing statement could be considered valid. (Note, this may well be why the Administration had its last minute briefing on March 10, 2004–to try to find out whether they could reverse the prohibition on using funding to data mine Americans and to try to address Comey’s concerns about congressional notification.)

Yoo Did Not Describe These "Other Intelligence Activities"

But that raises a larger question. Given the IG Report’s details about the failure of Yoo to describe these activities, to what degree did the Administration hide the data mining activities and from whom?

The IG Report suggests Yoo did not accurately address the OIAs in his legal analysis.

Yoo’s November 2, 2001 memorandum focused almost exclusively on the activity that the President later publicly confirmed as the Terrorist Surveillance Program.

[snip]

Yoo also discussed in his memoranda the legal rationale for Other Intelligence Activities authorized as part of the PSP. To the extent that particular statutes might appear to preclude these activities, Yoo concluded that "we do not believe Congress may restrict the President’s inherent consitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack.

However, as detailed in Chapter Three of the DOJ OIG report, Yoo’s discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities. Yoo’s factual discussion of these activities was later identified by his successors in the Office of Legal Counsel and ODAG in late 2003 as insufficient and presenting a serious impediment to recertification of the program as to form and legality.

Now, Yoo’s inaccurate description of the scope of the program shows two things–the later restriction on using funds to data mine Americans cannot be the whole problem with the vacuuming and data mining aspect of the program. There seems to have been a more fundamental problem with it.

In addition, consider the parallel with the Bybee Two memo, which established certain facts about Abu Zubaydah we know to have been false. The emerging pattern of Yoo using inaccurate facts in his opinions may not be an accident.

Predictably, even though Yoo didn’t accurately describe the program, the Administration tried to have his analysis of it count as having authorized the program anyway. 

Later on March 5, Gonzales called Goldsmith to request a letter from OLC stating that Yoo’s prior OLC opinions "covered the program," meaning the PSP. Philbin told the DOJ OIG that Gonzales was not requesting a new opinion that the program itself was legal, but only that the prior opinions had concluded that it was. As a result of Gonzales’s request, Goldsmith, Philbin, and Comey re-examined Yoo’s memoranda with a view toward determining whether they adequately described the actual intelligence activities of the NSA under the Authorizations. Goldsmith, Philbin, and Comey concluded that Yoo’s memoranda did not accurately describe some of the Other Intelligence Activities that were being conducted under the Presidential Authorizations implementing the PSP, and that the memoranda therefore did not provide a basis for finding that these activities were legal.

Credible or not (coming from a guy who approved the program on the same day he was read into it), Ashcroft pointed to Yoo’s inaccurate description of these OIA when he explained why he had authorized the program in the past.

In a May 20, 2004 memorandum, Ashcroft wrote that it was not until Philbin and later Goldsmith explained to him that aspects of the NSA’s Other Intelligence Activities were not accurately described in the prior Authorizations that he realized that he had been certifying the Authorizations prior to March 2004 based on a misimpression of those activities.

So why didn’t Yoo include these activities in his original opinions? We know that the Administration briefed Congress–at least partly–on the data mining aspects of the program; presumably, that’s why Jello Jay invoked TIA when he wrote his letter to Cheney. Did the Gang of Four get a full briefing on July 17, 2003, on the eve of defunding any data mining?

Or did Yoo–and the rest of the Administration–leave Congress and much of DOJ in the dark about the extent to which they were data mining the communications of American people?