I laid out the OLC opinions described in the Steven Bradbury declaration to the ACLU. In this post, I’ll add in the other significant documents he describes. Note, Bradbury names four documents–OLC 56, 57, and 58, and OIPR 138–which are documents created by the President or his immediate staff, and so are not agency documents; he provides no description of these documents. There are, of course, a great number of documents withheld, which therefore have no description or date.
Materials not included in Bradbury’s memos are not bold.
September 12, 2001: AUMF authorizes the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
September 18, 2001: Bush signs AUMF.
September 21, 2001: Yoo writes internal memo on program. (Bamford 115)
September 25, 2001: OLC provides memo to David Kris on “a purpose” language for FISA.
October 1, 2001: Hayden briefs HPSCI.
October 2, 2001: Predecessor bill to PATRIOT Act introduced into House.
October 3, 2001: 15-day exception in FISA after declaration of war expires.
October 4, 2001, from DAAG OLC to Alberto Gonzales: OLC 132,which consists of two copies, one with handwritten comments and marginalia, of a 36-page memorandum, dated October 4, 2001, from a Deputy Assistant Attorney General in OLC to the Counsel to the President, created in response to a request from the White House for OLC’s views regarding what legal standards might govern the use of certain intelligence methods to monitor communications by potential terrorists. Warrantless wiretapping program authorized. Predecessor bill to PATRIOT Act introduced into Senate.
October 5, 2001: Bush explicitly limits briefings to Congress.
October 6, 2001: Program begins.
~October 7, 2001: Technicians discover program.
October 11, 2001: Nancy Pelosi writes Michael Hayden with concerns about the program.
October 18, 2001: Michael Hayden responds to Pelosi.
October 21, 2001, from Ashcroft to Mueller: FBI 7 is a one-page memorandum, dated October 20, 2001, from the Attorney General to the Director of the FBI, advising the Director that certain intelligence collection activities are legal and have been appropriately authorized. The memorandum is classified TOP SECRET.
October 23, 2001, from Yoo and Delahunty to Alberto Gonzales: OLC 146, which is a 37-page memorandum, dated October 23, 2001, from a Deputy Assistant Attorney General in OLC, and a Special Counsel, OLC, to the Counsel to the President, prepared in response to a request from the White House for OLC’s views concerning the legality of potential responses to terrorist activity. This is the memo that eviscerates the Fourth Amendment. Also, Sensenbrenner introduces PATRIOT Act into Congress.
October 25, 2001: PSP briefings start.
October 26, 2001: Bush signs PATRIOT Act.
November 2, 2001, from Yoo to John Ashcroft: OLC 131, which consists of two copies, both with underscoring and marginalia, of a 24-page memorandum, dated November 2, 2001, from a Yoo to the Attorney General, prepared in response to a request from the Attorney General for OLC’s opinion concerning the legality of certain communications intelligence activities. The IG Report states this is the first opinion “directly supporting the legality of the PSP.” (This highly redacted copy was released in March 2011.)
January 9, 2002, from DAAG OLC to Ashcroft: OLC 115 is a two-page memorandum for the Attorney General from a Deputy Assistant Attorney General, OLC, dated January 9, 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, which was done approximately every 45 days
February 8, 2002, from DAAG OLC to Jim Haynes2: OLC 62, which consists of two copies, one with highlighting and marginalia by an OLC attorney, of a February 8, 2002, memorandum from a Deputy Assistant Attorney General in OLC to the General Counsel of another federal agency, prepared in response to a request for OLC views regarding the legality of certain hypothetical activities.
May 17, 2002: FISC revises DOJ’s proposed information sharing procedures.
May 30, 2002: Attorney General Procedures for Lawful, Warrantless Monitoring of Verbal Conversations
October 11, 2002, from DAAG OLC to John Ashcroft: OLC 129, which consists of two copies, one with handwritten comments and marginalia, of 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.
February 25, 2003, from DAAG OLC to John Ashcroft: OLC 16, which consists of four copies, one with handwritten marginalia, of a 12-page memorandum, dated February 25, 2003, for the Attorney General from a Deputy Assistant Attorney General for OLC, prepared in response to a request from the Attorney General for legal advice concerning the potential use of certain information collected in the course of classified foreign intelligence activities.
March 28, 2003: Jay Bybee sworn in to Ninth Court. Addington and Gonzales try to appoint Yoo as his replacement, but Ashcroft refuses. Ed Whelan Acting AAG.
May 30, 2003, DAAG OLC to GC of another agency: ODAG 42 is a 19-page memorandum, dated May 30, 2003, from a Deputy Assistant Attorney General in OLC to the General Counsel of another Executive Branch agency.
June 2003: John Yoo leaves his position at OLC.
October 3, 2003: Jack Goldsmith confirmed as head of OLC.
Mid-November 2003, Goldsmith to Ashcroft: draft memo, Review of Legality of the [NSA] Program
December 2003: Jack Goldsmith and Pat Philbin tell David Addington and Alberto Gonzales that program might not survive in current form.
December 11, 2003: Comey appointed Deputy AG.
Late January 2004: Comey read into program.
March 1, 2004: Comey tells Robert Mueller of his concerns about the program.
March 4, 2004: Ashcroft and Comey agree they cannot recertify the NSA domestic spying program. Ashcroft hospitalized with pancreatitis.
March 5, 2004: Goldsmith advises Comey by memo, cc’ed to Gonzales, that Ashcroft was clearly absent or disabled, meaning Comey would be in charge. Gonzales calls Goldsmith to request a letter from OLC stating that Yoo’s prior opinions had concluded the program was legal. Goldsmith, Philbin, and Comey conclude they do not.
March 6, 2004: Goldsmith and Philbin tell Addington and Gonzales that “certain activities in the PSP should cease.”
March 7, 2004: Addington and Gonzales tell Goldsmith and Philbin they disagree with their analysis.
March 9, 2004: Gonzales tries to persuade Goldsmith, then asks for 30 day bridge. Later meeting between Mueller, Card, Cheney, McLaughlin, Hayden, Gonzales and others. Cheney says, “the President may have to reauthorize without blessing of DOJ,” to which Mueller responds, “I could have a problem with that” and FBI would “have to review legality of continued participation in the program.” Still later meeting with Comey, Goldsmith, and Philbin “to make sure Comey understood what was at stake with the PSP and to demonstrate the program’s value.”
March 10 2004: Goldsmith, Philbin, and Comey meet; Goldsmith and Philbin confirm that some of the Other Intelligence Activities could not be legally supported. Emergency meeting with Congressional leaders including Cheney, Card, Hayden, McLaughlin, and Tenet. The hospital confrontation between Comey and Gonzales and Card.
March 11, 2004: Bush reauthorizes the NSA domestic spying program without DOJ’s certification of legality. Card informs Comey by phone. Gonzales calls Goldsmith to tell him “DOJ should not act in contradiction of the President’s determinations.” Card tells Mueller that if no “legislative fix” could be found by May 6, 2004, the program would be discontinued.
March 11, 2004, from Goldsmith to Gonzales: OIPR 140 is a one-page letter dated March 11, 2004, from the Assistant Attorney General for OLC, to the White House Counsel seeking clarification regarding advice that OLC had been requested to provide concerning classified foreign intelligence activities.
March 12, 2004, from Goldsmith to Comey: According to the IG Report, Goldsmith explained that the President, as Commander in Chief and Chief Executive with the constitutional duty to “take care that the laws are faithfully executed,” made a determination that the PSP, as practiced, was lawful. Goldsmith concluded that this determination was binding on the entire Executive Branch, including Comey in his exercise of the powers of the Attorney General. Based on this, Comey did not direct FBI to stop cooperating with NSA on PSP.
March 12, 2004: Interagency working group led by OLC to continue reanalyzing PSP.
March 14, 2004: OLC 125 is an undated two-page document entitled “Presentation: Where DOJ is on [REDACTED CLASSIFIED CODENAME].” OLC 126 consists of two copies of a five-page document, dated March 14, 2004, which consists of bullet points related to OLC 125. OLC 125 and OLC 126 were prepared for purposes of providing legal assistance and advice to other Executive Branch officials concerning DOJ’s views about foreign intelligence activities
March 15, 2004, from Goldsmith to Comey: OLC 64 [the same as FBI 5] consists of four copies of a three-page memorandum dated March 15, 2004, for the Deputy Attorney General from the Assistant Attorney General for OLC, plus an electronic file, which outlines preliminary OLC views with respect to certain legal issues concerning classified foreign intelligence activities. The memorandum specifically notes that OLC’s views have “not yet reached final conclusions” and that OLC is “not yet prepared to issue a final opinion.”
March 16, 2004, from Comey to Gonzales, cc’ed to Card: OLC 63 [the same as FBI 4] is a two-page memorandum (and related electronic file) dated March 16, 2004, from the Acting Attorney General to the Counsel to the President, copied to the President’s Chief of Staff, containing legal recommendations regarding classified foreign intelligence activities. IG Report explains, Comey advised that DOJ remained unable to find a legal basis to support certain Other Intelligence Activities (data mining) 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.” Gonzales replied:
Your memorandum appears to have been based on a misunderstanding of the President’s expectations regarding the conduct of the Department of Justice. While the President was, and remains, interested in any thoughts the Department of Justice may have on alternative ways to achieve effectively the goals of the activities authorized by the Presidential Authorization of March 11, 2004, the President has addressed definitively for the Executive Branch in the Presidential Authorization the interpretation of the law.
March 17, 2004: Bush modifies certain PSP intelligence-gathering activities and discontinues certain Other Intelligence Activities by issuing two modifications to his March 11, 2004 Presidential Authorization.
March 19, 2004: Date Jack Goldsmith opinion gives for one modification of program.
March 22, 2004. from Goldsmith to Comey: OLC 114 consists of two copies of a three-page memorandum dated March 22, 2004, to the Deputy Attorney General from the Assistant Attorney General for OLC, which confirms oral advice provided by OLC on a particular matter concerning classified foreign intelligence activities.
March 23, 2004: Mueller meets with Cheney, at his request, in his office.
March 24, 2004: Email to FBI General Counsel referring to “recent changes” to Section 215 allowing FBI to bypass OIPR.
March 30, 2004, briefing from Comey to Ashcroft: OLC 65 is a five-page document (plus an electronic file), dated March 30, 2004, entitled “Briefing for AG.” This outline for a briefing to be provided to the Attorney General by the Deputy Attorney General prepared by Department staff includes a summary of preliminary OLC conclusions concerning the TSP and other intelligence activities; a discussion of issues for decision concerning these intelligence activities; a description of advice provided by OLC to other Executive Branch agencies and components concerning these activities; and an identification of legal issues requiring further discussion.
March 31, 2004: Ashcroft cleared to resume AG duties.
May 6, 2004, from Jack Goldsmith for John Ashcroft: OLC 54 which consists of six copies, some with handwritten comments and marginalia, of a 108-page memorandum, dated May 6, 2004, from the Assistant Attorney General for OLC to the Attorney General, as well as four electronic files, one with highlighting, prepared in response to a request from the Attorney General that OLC perform a legal review of classified foreign intelligence activities. According to the IG Report, much of this was replicated in the January 6, 2006 White Paper.
May 20, 2004: Ashcroft writes memo stating 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.
May 21, 2004: FBI gets its first business record in response to Section 215 of the PATRIOT Act.
June 17, 2004: Jack Goldsmith announces his resignation.
July 16, 2004, from Jack Goldsmith for Ashcroft: OLC 85, which is a nine-page memorandum, with highlighting, dated July 16, 2004, from the Assistant Attorney General in OLC to the Attorney General, evaluating the implications of a recent Supreme Court decision for certain foreign intelligence activities.
Late July 2004?: Goldsmith leaves, Daniel Levin Acting AAG OLC.
August 9, 2004, to Comey: OLC 51 is a one-page memorandum, dated August 9, 2004, from the Acting Assistant Attorney General for OLC to the Deputy Attorney General entitled “Proposed Memorandum,” which contains OLC’s advice concerning a decision to be made by the Deputy Attorney General regarding an intelligence collection activity.
Late October 2004: Top Administration officials convince NYT to spike the NSA domestic spying story.
November 17, 2004, memorandum “for the file”: OLC 59, which consists of four copies Of an 18-page memorandum for the file, dated November 17, 2004, from the Acting Assistant Attorney General in OLC, plus an electronic file, prepared in response to a request for OLC views regarding the applicability of certain statutory requirements.
February 14, 2005: Gonzales sworn in.
June 23, 2005: Steven Bradbury nominated AAG OLC, becomes Acting AAG.
August 15, 2005: Comey’s Farewell Address.
December 16, 2005: Risen and Lichtblau’s first story on the NSA domestic spy program.
December 18, 2005: OLC 81 consists of 11 copies, some drafts and some with handwritten marginalia and notes, of four pages of briefing notes, dated December 18, 2005, which describe the TSP and other foreign intelligence activities and summarize various OLC legal opinions related to foreign intelligence collection activities. OLC 81 was created so that I could brief Department officials regarding foreign intelligence activities and OLC views following the publication of the article in The New York Times which divulged without authorization classified information concerning the TSP.
January 1, 2006, Lichtblau and Risen tell the story of the hospital visit.
January 6, 2006: OLC 82 consists of 20 copies, some drafts and some with handwritten edits and marginalia, plus eight related electronic files of a briefing outline, dated January 6, 2006, summarizing various topics related to foreign intelligence activities. OLC 82 was created as an outline for my use in the course of briefing members of the FISC.
February 17, 2006: WH refuses to allow Ashcroft, Comey, and Goldsmith to testify before SJC.
November 29, 2006: Alberto Gonzales issues The Attorney General’s Supplemental Guidelines on Collection, Retention, and Dissemination of Foreign Intelligence.
February 1, 2007: Final Presidential Authorization expires.
December 7, 2007: All-Senate briefing by Mukasey and McConnell.