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10 July 2009 

Preface 

(U) Title III of the Foreign Intelligence Surveillance Act 

Amendments Act of 2008 required the Inspectors General (IGs) of 

the elements of the Intelligence Community that participated in 

the President's Surveillance Program (PSP) to conduct a 

comprehensive review of the program. The IGs of the Department 

of Justice, the Department of Defense, the Central Intelligence 

Agency, the National Security Agency, and the Office of the 

Director of National Intelligence participated in the review 

required under the Act. The Act required the IGs to submit a 

comprehensive report on the review to the Senate Select 

Committee on Intelligence, the Senate Committee on the 

Judiciary, the House Permanent Select Committee on Intelligence, 

and the House Committee on the Judiciary. 

(U) In response to Title III requirements, we have 

prepared this unclassified report on the PSP, which summarizes 

the collective results of our reviews. Because many aspects of 

the PSP remain classified, and in order to provide the 

Congressional committees the complete results of our reviews, 

we also prepared, and have bound separately, a classified 

report on the PSP. The individual reports detailing the 

results of each IG's review are annexes to the classified 

report . 

Glenn A. Fine 

Co,J)_~. £b./I2W

Gordon S. Heddell 

Inspector General Acting Inspector General 

Department of Justice Department of Defense 

9rlnl Wtt&J1;:J Ge f20j0JLc( Patricia A. LeWiS 

Acting Inspector General Inspector General 

Central Intelligence Agency National Security Agency 

ROInspector kh:.~ General ~ Office of the Director of 

National Intelligence 
UNCLASSIFIED REPORT ON THE 


PRESIDENT'S SURVEILLANCE PROGRAM 


I. 	 INTRODUCTION ................................................................................ 1 


A. 	 Scope of Report........................................................................ 2 


B. 	 Methodology of this Review ...................................................... 3 


II. 	 INCEPTION OF THE PRESIDENT'S SURVEILLANCE PROGRAM 


(PSP) ................................................................................................. 4 


A. 	 Expansion of NSA's Collection Activities ................................... 4 


B. 	 Presidential Authorization of the PSP ....................................... 5 


C. 	 Threat Assessment Memoranda Supporting Authorization of 


the PSP.................................................................................... 7 


D. 	 Department of Justice Office of Legal Counsel's Early 


Memoranda Supporting the Legality of the PSP ...................... 10 


III. 	 IMPLEMENTATION OF THE PRESIDENT'S SURVEILLANCE 


PROGRAM ...................................................................................... 14 


A. 	 NSA Intelligence Activities under the PSP ............................... 14 


B. 	 Access to the PSP ................................................................... 16 


1. 	 Executive Branch Personnel ......................................... 16 


2. 	 Congressional Briefings ................................................ 16 


3. 	 Foreign Intelligence Surveillance Court Briefings .......... 17 


4. 	 FBI Participation in the PSP ......................................... 17 


5. 	 CIA Participation in the PSP ......................................... 17 


6. 	 ODNI Participation in the PSP ...................................... 18 


C. 	 Impact of PSP-Derived Information on the FISA Process ......... 18 


D. 	 Discovery Issues .................................................................... 18 


IV. 	 LEGAL REASSESSMENT OF THE PRESIDENT'S SURVEILLANCE 


PROGRAM ...................................................................................... 19 


A. 	 Justice Department Attorneys Become Concerned About the 


Legality of Some Activities under the PSP ............................... 19 


B. 	 OLC Begins Developing a New Legal Analysis for the PSP ....... 20 


C. 	 DOJ Officials Convey Concerns to the White House ............... 20 


D. 	 Conflict Between DOJ and the White House ........................... 21 


E. 	 White House Counsel Certifies Presidential Authorization 


Without Department of Justice Concurrence .......................... 26 


1 
F. 	 Department of Justice and FBI Officials Consider Resigning .. 27 


G. 	 White House Agrees to Modify the PSP ................................... 29 


H. 	 Department of Justice OIG Conclusions................................. 30 


V. 	 TRANSITION OF CERTAIN PROGRAM ACTIVITIES TO FOREIGN 


INTELLIGENCE SURVEILLANCE COURT ORDERS.......................... 30 


VI. 	 IMPACT OF THE PRESIDENT'S SURVEILLANCE PROGRAM ON 


INTELLIGENCE COMMUNITY COUNTERTERRORISM EFFORTS ..... 31 


A. 	 NSA's Assessment of the PSP ................................................. 31 


B. 	 DOJ OIG's Assessment of the PSP.......................................... 32 


C. 	 CIA OIG's Assessment of the PSP ........................................... 33 


D. 	 ODNI's Assessment of the PSP ............................................... 35 


E. 	 Intelligence Community Activities Supported by the PSP ........ 36 


VII. 	 PUBLIC STATEMENTS ABOUT THE PRESIDENT'S SURVEILLANCE 


PROGRAM ...................................................................................... 36 


VIII. 	 CONCLUSION ................................................................................. 37 


11 
UNCLASSIFIED REPORT ON THE 


PRESIDENT'S SURVEILLANCE PROGRAM 


I. INTRODUCTION 


In the weeks following the terrorist attacks of September 11, 2001, the 

President authorized the National Security Agency (NSA) to conduct a 

classified program to detect and prevent further attacks in the United 

States. As part of the NSA's classified program, several different intelligence 

activities were authorized in Presidential Authorizations, and the details of 

these activities changed over time. The program was reauthorized by the 

President approximately every 45 days, with certain modifications. 

Collectively, the activities carried out under these Authorizations are 

referred to as the "President's Surveillance Program" or "PSP."l 

One of the activities authorized as part of the PSP was the 

interception of the content of communications into and out of the United 

States where there was a reasonable basis to conclude that one party to the 

communication was a member of al-Qa'ida or related terrorist organizations. 

This aspect of the PSP was publicly acknowledged and described by the 

President, the Attorney General, and other Administration officials 

beginning in December 2005 following a series of articles published in The 

New York Times. The Attorney General subsequently publicly acknowledged 

the fact that other intelligence activities were also authorized under the 

same Presidential Authorization, but the details of those activities remain 

classified. 

The President and other Administration officials labeled the publicly 

disclosed interception of the content of certain international 

communications by the NSA as the "Terrorist Surveillance Program." 

Several different agencies had roles in the PSP. At the request of the 

White House, the NSA was involved in providing the technical expertise 

necessary to create the program. The NSA also was responsible for 

conducting the actual collection of information under the PSP and 

1 In Title III of the Foreign Intelligence Surveillance Act Amendments Act of 2008 

(FISA Amendments Act), the President's Surveillance Program is defined as 

the intelligence activity involvipg communications that was authorized by the 

President during the period beginning on September 11,2001, and ending 

on January 17,2007, including the program referred to by the President in a 

radio address on December 17, 2005 (commonly known as the Terrorist 

Surveillance Program). 

FISA Amendments Act, Title III, Sec. 301(a)(3). 

1 

disseminating intelligence reports to other agencies such as the Federal 

Bureau ofInvestigation (FBI), the Central Intelligence Agency (CIA), and the 

Office of the Director of National Intelligence (ODNI) National 

Counterterrorism Center (NCTC) for analysis and possible investigation.2 In 

addition, the NSA Office of General Counsel and Office of the Inspector 

General were responsible for reviewing and monitoring the NSA's PSP 

operation. With the exception of the NSA, the Department of Defense (DoD) 

had limited involvement in the PSP. 

Components of the Department of Justice (DOJ) other than the FBI 

also were involved in the program. Most significantly, DOJ's Office of Legal 

Counsel (OLC) provided advice to the White House and the Attorney General 

on the overall legality of the PSP. In addition, DOJ's Office of Intelligence 

Policy and Review (now called the Office of Intelligence in DOJ's National 

Security Division) worked with the FBI and the NSA to address the impact 

PSP-derived information had on proceedings under the Foreign Intelligence 

Surveillance Act (FISA). DOJ's National Security Division also handled 

potential discovery issues that may have involved PSP-related information in 

international terrorism prosecutions. 

The CIA, in addition to receiving intelligence reports as PSP 

consumers, requested information from the program and utilized this 

information in its analyses. The CIA also initially prepared threat 

assessment memoranda that were used to support the periodic Presidential 

Authorizations. 

Beginning in 2005, the newly-created ODNI assumed responsibility 

for preparing these threat assessment memoranda. In addition, NCTC 

analysts received program information for possible use in analytical 

products prepared for the President, senior policymakers, and other 

Intelligence Community (IC) analysts and officers. 

A. Scope of Report 

Title III of the Foreign Intelligence Surveillance Act of 1978 

Amendments Act of 2008 (FISA Amendments Act) - signed into law on 

July 10,2008 - required the Inspectors General of Intelligence Community 

agencies that participated in the PSP to conduct a comprehensive review of 

the program. The review required to be conducted under the Act was to 

examine: 

2 The National Counterterrorism Center was made a subcomponent of the Office of 

the Director of National Intelligence by the Intelligence Reform and Terrorism Prevention 

Act of 2004 and is charged with being the primary U.S. Government organization for 

analyzing and integrating counterterrorism intelligence, except for intelligence pertaining 

exclusively to domestic terrorists and domestic counterterrorism. 

2 

(A) 	 all of the facts necessary to describe the 

establishment, implementation, product, and use of 

the product of the Program; 

(B) 	 access to legal reviews of the Program and access to 

information about the Program; 

(C) 	 communications with, and participation of, 

individuals and entities in the private sector related 

to the Program; 

(D) 	 interaction with the Foreign Intelligence Surveillance 

Court and transition to court orders related to the 

Program; and 

(E) 	 any other matters identified by any such Inspector 

General that would enable that Inspector General to 

complete a review of the Program, with respect to 

such Department or element. 

The Inspectors General (IGs) of the DoD, DOJ, CIA, NSA, and ODNIcollectively the "PSP IG Group" - conducted the review required under the 

Act. This unclassified report summarizes the portions of the collective 

results of the IG reviews that can be released in unclassified form. A 

separate classified report summarizes the classified results of the individual 

IG reviews. In addition, the individual IG reports that document the results 

of each of the participating IGs' reviews and investigations, which provide 

additional classified details concerning the PSP and each agency's role in 

the PSP, are included as attachments to the classified report. 

Title III of the FISA Amendments Act required that the report of any 

investigation of matters relating to the PSP conducted by the DOJ Office of 

Professional Responsibility (OPR) be provided to the DOJ Inspector General, 

and that the findings and conclusions of such investigation be included in 

the DOJ OIG review. OPR has initiated a review of whether any standards 

of professional conduct were violated in the preparation of the first series of 

legal memoranda supporting the PSP. OPR has not completed its review. 

B. Methodology of this Review 

The PSP IG Group collectively interviewed approximately 200 

government and private sector personnel as part of this review. Most of the 

interviews were conducted separately by the individual OIGs as part of their 

agency-specific reviews, although some interviews were conducted jointly. 

Among the interviewees were former and current senior government 

officials, including Director of National Intelligence (DNI) John D. 

Negroponte, NSA Director Keith Alexander, and DNI Michael McConnell, 

3 

NSA and CIA Director and Principal Deputy DNI (PDDNI) Michael V. 

Hayden, White House Counsel and Attorney General Alberto Gonzales, FBI 

Director Robert Mueller, and Secretary of Defense Donald Rumsfeld. 

Certain senior officials either declined or did not respond to our requests to 

be interviewed for this review, including Counsel to the Vice President David 

Addington, White House Chief of Staff Andrew Card, Attorney General John 

Ashcroft, DOJ Office of Legal Counsel Deputy Assistant Attorney General 

John Yoo, and former Director of Central Intelligence George Tenet. 

The OIGs also interviewed many agency managers and personnel, 

including attorneys, NSA operational personnel, FBI special agents and 

analysts, and CIA officials and analysts who were responsible for the 

day-to-day operation of the PSP, including the legal issues associated with 

the program. 

In addition to these interviews, the PSP IG Group reviewed thousands 

of documents and electronic records, including the Presidential 

Authorizations and Threat Assessments supporting reauthorization of the 

program, OLC legal memoranda, contemporaneous notes and e-mails of 

various senior officials describing significant events during the program, 

Foreign Intelligence Surveillance Court (FISC) pleadings and orders, and 

documents that were used to disseminate PSP-derived leads to FBI field 

offices and CIA stations for investigation and for other purposes related to 

the PSP. Finally, there were previous NSA OIG reports and supporting 

documentation to use as additional sources. 

II. 	 INCEPTION OF THE PRESIDENT'S SURVEILLANCE PROGRAM 

(PSP) 

A. 	 Expansion of NSA's Collection Activities 

Prior to September 11,2001, the Foreign Intelligence Surveillance Act 

of 1978 and Executive Order 12333 were generally viewed as the principal 

governing authorities for conducting electronic surveillance for national 

security purposes. 3 The Foreign Intelligence Surveillance Act, 50 U.S.C. 

§ 1801, et seq., was enacted in 1978 to "provide legislative authorization 

and regulation for all electronic surveillance conducted within the United 

States for foreign intelligence purposes." S. Rep. No. 95-701, at 9 (1978), 

reprinted in 1978 U.S.C.C.A.N. 3973,3977. Executive Order 12333 placed 

3 Executive Order 12333 was amended on July 30,2008 by Executive Order 13470. 

This report refers to Executive Order 12333 as it existed prior to that amendment. The 

Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1801, et seq. also was amended by 

the FISA Amendments Act of 2008. Unless otherwise indicated, this report refers to FISA 

as it existed prior to 2008. 

4 

restrictions on intelligence collection activities engaged in by Executive 

Branch agencies, including the NSA, while also seeking to foster "full and 

free exchange of information" among these agencies. In 2000 the NSA 

reported to Congress that 

(U) The applicable legal standards for the collection, retention, 

or dissemination of information concerning u.s. persons reflect 

a careful balancing between the needs of the government for 

such intelligence and the protection of the rights of u.s. 

persons, consistent with the reasonableness standard of the 

Fourth Amendment, as determined by factual circumstances. 

(U) In the Foreign Intelligence Surveillance Act (FISA) and 

Executive Order (E.O.) 12333, Congress and the Executive have 

codified this balancing. (Citations omitted.)4 

As explained below, the PSP expanded the NSA's authority by allowing 

it to conduct electronic surveillance within the United States without an 

order from the FISC when certain factual conditions and legal standards 

were met. 

B. Presidential Authorization of the PSP 

In the days immediately after September 11, 2001, the NSA used its 

existing authorities to gather intelligence information in response to the 

terrorist attacks. When Director of Central Intelligence Tenet, on behalf of 

the White House, asked NSA Director Hayden whether the NSA could do 

more against terrorism, Hayden replied that nothing more could be done 

within existing authorities. When asked what he might do with more 

authority, Hayden said he put together information on what was 

operationally useful and technologically feasible. This information formed 

the basis of the PSP. 

Shortly thereafter, the President authorized the NSA to undertake a 

number of new, highly classified intelligence activities. 5 All of these 

activities were authorized in a single Presidential Authorization that was 

periodically reauthorized. 

The specific intelligence activities that were permitted by the 

Presidential Authorizations remain highly classified, except that beginning 

4 Legal Standards for the Intelligence Community in Conducting Electronic 

Surveillance, Report to Congress pursuant to Fiscal Year 2000 Intelligence Authorization 

Act. 

5 See Letter from Attorney General Alberto Gonzales to Senator Patrick Leahy, 

Chairman, Committee on the Judiciary (Gonzales Letter), August 1,2007. 

5 

in December 2005 the President and other Administration officials 

acknowledged that these activities included the interception without a court 

order of certain international communications where there is "a reasonable 

basis to conclude that one party to the communication is a member of 

al-Qa'ida, affiliated with al-Qa'ida, or a member of an organization affiliated 

with al-Qa'ida."6 The President and other Administration officials referred to 

this publicly disclosed activity as the "Terrorist Surveillance Program," a 

convention we follow in this unclassified report. We refer to other 

intelligence activities authorized under the Presidential Authorizations as 

the "Other Intelligence Activities." The specific details of the Other 

Intelligence Activities remain highly classified, although the Attorney 

General publicly acknowledged the existence of such activities in August 

2007.7 Together, the Terrorist Surveillance Program and the Other 

Intelligence Activities comprise the PSP. 

The Presidential Authorizations were issued at intervals of 

approximately every 45 days. As described in the next section, with each 

reauthorization the CIA and later the NCTC prepared an assessment of 

current potential terrorist threats and a summary of intelligence gathered 

through the PSP and other means during the previous authorization period. 

The Department of Justice's Office of Legal Counsel reviewed this 

information to assess whether there was "a sufficient factual basis 

demonstrating a threat of terrorist attacks in the United States for it to 

continue to be reasonable under the standards of the Fourth Amendment 

for the President to [continue] to authorize the warrantless searches 

involved" in the program. The Office of Legal Counsel then advised the 

Attorney General whether the constitutional standard of reasonableness had 

been met and whether the Presidential Authorization could be certified "as 

to form and legality." Each of the Presidential Authorizations included a 

finding to the effect that an extraordinary emergency continued to exist, and 

that the circumstances "constitute an urgent and compelling governmental 

interest" justifying the activities being authorized without a court order. 

Each Presidential Authorization also included a requirement to 

maintain the secrecy of the activities carried out under the program. The 

President also noted his intention to inform appropriate members of the 

Senate and the House of Representatives of the program "as soon as I judge 

that it can be done consistently with national defense needs." As discussed 

in Section III.B.2. below, beginning on October 25,2001, White House 

6 Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, 

Principal Deputy Director for National Intelligence (December 19, 2005) (statement of 

Attorney General Gonzales). 

7 Gonzales Letter, August 1, 2007. 

6 

officials and Hayden provided briefings on the PSP to members of Congress 

and their staffs. 

Although there was no legal requirement that the Authorizations be 

certified by the Attorney General or other Department of Justice official, 

current and former DOJ officials told us that this certification added value 

by giving the program a sense of legitimacy. Former Attorney General 

Gonzales stated that the NSA was being asked to do something it had not 

done before, and it was important to assure the NSA that the Attorney 

General had approved the legality of the program. He also stated that it was 

important that the cooperating private sector personnel know that the 

Attorney General had approved the program. In addition, Gonzales said 

that for "purely political considerations" the Attorney General's approval of 

the program would have value "prospectively" in the event of congressional 

or inspector general reviews of the program. 

c. 	 Threat Assessment Memoranda Supporting Authorization of 

the PSP 

The CIA initially prepared the threat assessment memoranda that 

were used to support the Presidential Authorization and periodic 

reauthorizations of the PSP. The memoranda documented intelligence 

assessments of the terrorist threats to the United States and to U.S. 

interests abroad from al-Qa'ida and affiliated terrorist organizations. These 

assessments were prepared approximately every 45 days to correspond with 

the President's Authorizations of the PSP. 

The Director of Central Intelligence's (DCI) Chief of Staff was the initial 

focal point for preparing the threat assessment memoranda. According to 

the former DCI Chief of Staff, he directed CIA terrorism analysts to prepare 

objective appraisals of the current terrorist threat, focusing primarily on 

threats to the U.S. homeland, and to document those appraisals in a 

memorandum. Initially, the analysts who prepared the threat assessments 

were not read into the PSP and did not know how the threat assessments 

would be used. CIA's terrorism analysts drew upon all sources of 

intelligence in preparing these threat assessments. 

After the terrorism analysts completed their portion of the 

memoranda, the DCI Chief of Staff added a paragraph at the end of the 

memoranda stating that the individuals and organizations involved in global 

terrorism (and discussed in the memoranda) possessed the capability and 

intention to' undertake further terrorist attacks within the United States. 

The DCI Chief of Staff recalled that the paragraph was provided to him 

initially by a senior White House official. The paragraph included the DCI's 

recommendation to the President that he authorize the NSA to conduct 

surveillance activities under the PSP. CIA Office of General Counsel (OGC) 

7 

attorneys reviewed the draft threat assessment memoranda to determine 

whether they contained sufficient threat information and a compelling case 

for reauthorization of the PSP. If either was lacking, an OGC attorney would 

request that the analysts provide additional threat information or make 

revisions to the draft memoranda. 

The threat assessment memoranda were then signed by the DCI. 

George Tenet signed most of the threat memoranda prepared during his 

tenure as DCI. On the few occasions when he was unavailable, the Deputy 

Director of Central Intelligence, John E. McLaughlin, signed the memoranda 

on behalf of Tenet. McLaughlin also signed the memoranda in the capacity 

of Acting DCI in August and September 2004. 

In November 2004, Porter J. Goss became DCI and assumed 

responsibility for signing the memoranda. There were no occasions when 

the DCI or Acting DCI withheld their signatures from the threat assessment 

memoranda. The memoranda were co-signed by the Secretary of Defense, 

reviewed by the Attorney General, and delivered to the White House to be 

attached to the PSP Presidential Authorizations signed by the President. 

Responsibility for drafting the threat assessment memoranda was 

transferred from the CIA to the newly established Terrorist Threat 

Integration Center (TIIC) in May 2003. This responsibility subsequently 

was retained by TIIC's successor organization, the NCTC. The DCI 

continued to sign the threat assessment memoranda through April 2005. 

The ODNI was established in April 2005, and the NCTC became a 

subcomponent of the ODNI. Once Ambassador Negroponte was confirmed 

as the DNI, senior IC officials believed that DNI Negroponte, as the 

President's new senior intelligence advisor, should make the IC's 

recommendation to the President regarding the need to renew the PSP. 

The preparation and approval of the threat assessments became the 

ODNI's primary role in the PSP. Beginning in April 2005, and continuing at 

specific intervals until the program's termination in early 2007, ODNI 

personnel prepared and approved threat assessments in support of the 

periodic renewal of the PSP. 

The ODNI OIG found that the ODNI threat assessments were drafted 

by experienced NCTC personnel who prepared the documents in a 

memorandum style following an established DOJ format used in earlier PSP 

renewals. Throughout the ODNI preparation and approval process, the 

threat assessments were also subject to varying degrees of review and 

comment by DOJ and ODNI attorneys. Each threat assessment was 

designed to set forth the DNI's view regarding the current threat of an 

al-Qa'ida attack against the United States and to provide the DNI's 

8 

recommendation whether to renew the PSP. NCTC personnel involved in 

preparing the threat assessments told the ODNI OIG that the danger of a 

terrorist attack described in the threat assessments was sobering and 

"scary," resulting in the threat assessments becoming known by ODNI and 

IC personnel involved in the PSP as the "scary memos." During interviews, 

ODNI personnel said they were aware the threat assessments were relied 

upon by DOJ and White House personnel as the basis for continuing the 

PSP, and understood that if a threat assessment identified a threat against 

the United States the PSP was likely to be renewed. NCTC analysts also 

reported that on a less frequent basis they prepared a related document 

that set forth a list of al-Qa'ida affiliated groups that they understood were 

targets of the PSP. The ODNI OIG found that the threat asses~ments and 

the less frequent list of al- Qa'ida-affiliated groups underwent the same 

ODNI approval process. 

The ODNI OIG also determined that the ODNI threat assessments 

were prepared using evaluated intelligence information chosen from a wide 

variety of IC sources. ODNI personnel told the ODNI OIG that during the 

period when the ODNI prepared the threat assessments, the IC had access 

to fully evaluated intelligence that readily supported the ODNI assessments 

that al-Qa'ida terrorists remained a significant threat to the United States. 

The ODNI OIG found that once the ODNI threat assessments were approved 

within NCTC and by the NCTC Director, the documents were forwarded 

through an established approval chain to senior ODNI personnel who 

independently satisfied themselves that the documents were accurate, 

properly prepared, and in the appropriate format. 

Once the draft threat assessments were sUbjected to this systematic 

and multi-layered management and legal review, the documents were 

provided to the DNI or his Principal Deputy (PDDNI) for consideration and, if 

appropriate, approval. Overall, the ODNI OIG found that the ODNI process 

used to prepare and obtain approval of the threat assessments was 

straightforward, reasonable, and consistent with the preparation of other 

documents requiring DNI or PDDNI approval. 

NCTC analysts involved in preparing the threat assessments told the 

ODNI OIG that only a portion of the PSP information was ever used in the 

ODNI threat assessments because other intelligence sources were available 

that provided more timely or detailed information about the al-Qa'ida threat 

to the United States. During interviews, the NCTC analysts noted that PSP 

information was only one of several valuable sources of intelligence 

information available to them. The NCTC analysts also told ODNI OIG staff 

that during the period when the NCTC prepared the threat memoranda, the 

intelligence demonstrating the al-Qa'ida threat to the United States was 

overwhelming and readily available to the IC. 

9 

D. 	 Department of Justice Office of Legal Counsel's Early 

Memoranda Supporting the Legality of the PSP 

From the outset of the program, access to the PSP for non-operational 

personnel was tightly restricted. Former White House Counsel and Attorney 

General Alberto Gonzales told the DOJ OIG that it was the President's 

decision to keep the program a "close hold." Gonzales stated that the 

President made the decision on all requests to "read in" any non-operational 

persons, including DOJ officials. 8 

DOJ Office of Legal Counsel (OLC) Deputy Assistant Attorney General 

John Yoo was responsible for drafting the first series of legal memoranda 

supporting the program.9 Yoo was the only OLC official "read into" the PSP 

from the program's inception in October 2001 until Yoo left DOJ in 

May 2003.10 The only other non-FBI DOJ officials read into the program 

during this period were Attorney General Ashcroft and Counsel for 

Intelligence Policy James Baker. 

Jay Bybee was OLC Assistant Attorney General from November 2001 

through March 2003, and Yoo's supervisor. Bybee told the DOJ OIG that in 

early July 2001, before he was confirmed, he learned that Yoo was already 

under consideration for one of OLC Deputy Assistant Attorney General slots. 

Bybee said he was "enthusiastic" about Yoo and later agreed to Yoo's 

request to be assigned to the "national security portfolio" because Y00 had 

more national security experience than any of the other OLC deputies. 

However, Bybee stated he was never read into the PSP and could shed 

no further light on how Yoo came to draft the OLC opinions on the program. 

He said that Yoo had responsibility for supervising the drafting of opinions 

related to other national security issues when the September 11 attacks 

8 Gonzales testified before the Senate Judiciary Committee on July 18,2006, that 

"[a]s with all decisions that are non-operational in terms of who has access to the program, 

the President of the United States makes the decisions, because this is such an important 

program[.]" 

9 The Office of Legal Counsel (OLC) typically drafts memoranda for the Attorney 

General and the Counsel to the President, usually on matters involving significant legal 

issues or constitutional questions, and in response to legal questions raised by Executive 

Branch agencies. In addition, all Executive Orders proposed to be issued by the President 

are reviewed by the Office of Legal Counsel as to form and legality, as are other matters that 

require the President's formal approval. 

10 The process of being "read into" a compartmented program generally entails 

being approved for access to particularly sensitive and restricted information about a 

classified program, receiving a briefing about the program, and formally acknowledging the 

briefing, usually by signing a nondisclosure agreement describing restrictions on the 

handling and use of information concerning the program. 

10 

occurred. l1 Bybee described Yoo as "articulate and brilliant," and said he 

had a "golden resume" and was "very well connected" with officials in the 

White House. Bybee said that from these connections, in addition to Yoo's 

scholarship in the area of executive authority during wartime, it was not 

surprising that Yoo "became the White House's guy" on national security 

matters. 

In September and early October 2001, Yoo prepared several 

preliminary opinions relating to hypothetical random domestic electronic 

surveillance activities, but the first OLC opinion explicitly addressing the 

legality of the PSP was not drafted until after the program had been formally 

authorized by President Bush in October 2001. Attorney General Ashcroft 

approved the first Presidential Authorization for the PSP as to "form and 

legality" on the same day that he was read into the program. 

The first OLC opinion directly supporting the legality of the PSP was 

dated November 2, 2001, and was drafted by Yoo. As discussed in Section 

IV of this report, deficiencies in Yoo's memorandum identified by his 

successors in the Office of Legal Counsel and the Office of the Deputy 

Attorney General later became critical to DOJ's decision to reassess the 

legality of the program in 2003. 

Yoo's November 2,2001 memorandum focused almost exclusively on 

the activity that the President later publicly confirmed as the Terrorist 

Surveillance Program. Y00 acknowledged that FISA "purports to be the 

exclusive statutory means for conducting electronic surveillance for foreign 

intelligence," but opined that "[s]uch a reading of FISA would be an 

unconstitutional infringement on the President's Article II authorities." Yoo 

characterized FISA as merely providing a "safe harbor for electronic 

surveillance," adding that it "cannot restrict the President's ability to engage 

in warrantless searches that protect the national security." According to 

Yoo, the ultimate test of whether the government may engage in warrantless 

electronic surveillance activities is whether such conduct is consistent with 

the Fourth Amendment, not whether it meets the standards of FISA. Yoo 

wrote that "unless Congress made a clear statement in FISA that it sought 

to restrict presidential authority to conduct warrantless searches in the 

11 As noted above, Yoo, Ashcroft, Card, and Addington declined or did not respond 

to the DOJ OIG's request for interviews, and the DOJ OIG does not know how Yoo came to 

deal directly with the White House on legal issues related to the PSP. In his book "War by 

Other Means," Yoo wrote that "[a]s a deputy to the assistant attorney general in charge of 

the office, I was a Bush Administration appointee who shared its general constitutional 

philosophy.... I had been hired specifically to supervise OLC's work on [foreign affairs 

and national security]." "War by Other Means," by John Yoo, at 19-20. 

11 

national security area - which it has not - then the statute must be 

construed to avoid such a reading."12 

Yoo's analysis of this point would later raise serious concerns for 

other officials in OLC and the Office of the Deputy Attorney General (ODAG) 

in late 2003 and early 2004. Among other concerns, Y00 did not address 

the section of FISA that creates an explicit exemption from the requirement 

to obtain a judicial warrant for 15 days following a congressional declaration 

of war. See 50 U.S.C. § 1811. Yoo's successors in OLC criticized this 

omission in Yoo's memorandum because they believed that by including this 

provision in FISA Congress arguably had demonstrated an explicit intention 

to restrict the government's authority to conduct electronic surveillance 

during wartime. 

Yoo's memorandum also analyzed Fourth Amendment issues raised 

by the Presidential Authorizations. Yoo dismissed Fourth Amendment 

concerns regarding the PSP to the extent that the Authorizations applied to 

non-U.S. persons outside the United States. Regarding those aspects of the 

program that involved interception of the international communications of 

U.S. persons in the United States, Yoo asserted that Fourth Amendment 

jurisprudence allowed for searches of persons crossing the border and that 

interceptions of communications into or out of the United States fell within 

the "border crossing exception." Yoo further opined that electronic 

surveillance in "direct support of military operations" did not trigger 

constitutional rights against illegal searches and seizures, in part because 

the Fourth Amendment is primarily aimed at curbing law enforcement 

abuses. 

Yoo also wrote that the activity described in the Presidential 

Authorizations was "reasonable" under the Fourth Amendment and 

therefore did not require a warrant. In support of this position, Yoo cited 

12 On March 2, 2009, DOJ released nine opinions written by OLC from 2001 

through 2003 regarding "the allocation of authorities between the President and Congress 

in matters of war and national security" containing certain propositions that no longer 

reflect the views of OLC and "should not be treated as authoritative for any purpose." 

Memorandum for the Files from Steven G. Bradbury, Principal Deputy Assistant Attorney 

General, Office of Legal Counsel, "Re: Status of Certain OLC Opinions Issued in the 

Mtermath of the Terrorist Attacks of September 11, 2001" (January 15,2009), at 1, 11. 

Among these opinions was a classified February 2002 memorandum written by Yoo which 

asserted that Congress had not included a clear statement in FISA that it sought to restrict 

presidential authority to conduct warrantless surveillance activities in the national security 

area and that the FISA statute therefore does not apply to the President's exercise of his 

Commander-in-Chief authority. In Bradbury's unclassified January 15,2009, 

memorandum (included among those released in March 2009), Bradbury stated that this 

proposition "is problematic and questionable, given FISA's express references to the 

President's authority" and is "not supported by convincing reasoning." 

12 

Supreme Court opinions upholding warrantless searches in a variety of 

contexts, such as drug testing of employees and sobriety checkpoints to 

detect drunk drivers, and in other circumstances "when special needs, 

beyond the normal need for law enforcement, make the warrant and 

probable-cause requirement impracticable." Veronia School Dist. 47J v. 

Acton, 515 u.S. 464, 652 (1995)(as quoted in November 2,2001 

Memorandum at 19). Yoo wrote that in these situations the government's 

interest was found to have outweighed the individual's privacy interest, and 

that in this regard "no governmental interest is more compelling than the 

security of the Nation." Haig v. Agee, 435 U.S. 280, 307 (1981). According 

to Yoo, the activity authorized by the Presidential Authorizations advanced 

this governmental security interest. 

Yoo's legal memoranda omitted any discussion of Youngstown Sheet & 

Tube Co. v. Sawyer, 343 U.S. 579 (1952), a leading case on the distribution 

of government powers between the Executive and Legislative Branches. 

Justice Jackson's analysis of President Truman's Article II 

Commander-in-Chief authority during wartime in the Youngstown case was 

an important factor in OLC's subsequent reevaluation of Yoo's opinions on 

the legality of the PSP. 

Y00 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 that Congress may restrict the President's inherent 

constitutional 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. 

The President continued to reauthorize the PSP periodically during 

late 2001 and 2002, with some modifications of the scope of the intelligence 

activities being authorized. In October 2002, at Attorney General Ashcroft's 

request, Yoo drafted another opinion concerning the PSP. This 

memorandum, dated October 11, 2002, reiterated the same basic analysis 

contained in Yoo's November 2, 2001, memorandum in support of the 

legality of the PSP. 

As the only OLC official read into the PSP through early 2003, Yoo 

consulted directly with White House officials about the PSP during this 

period. Because the DOJ OIG was unable to interview Yoo, it could not 

13 

determine the exact nature and extent of these consultations. The DOJ OIG 

was also unable to determine whether Attorney General Ashcroft was fully 

aware of the advice Y00 was providing directly to the White House about the 

PSP. 

Former Attorney General Gonzales and former OLC Assistant Attorney· 

General Bybee both told the DOJ OIG that they did not know how Yoo 

became responsible for analyzing the legality of the PSP. Bybee told us that 

he was "surprised" and "a little disappointed" to learn through media 

accounts that Yoo had worked on the PSP without Bybee's knowledge. 

Bybee said that it would not be unusual for a Deputy Assistant Attorney 

General such as Yoo to have direct contact with the White House for the 

purpose of rendering legal advice, but that the OLC Assistant Attorney 

General must be aware of all opinions that issue from OLC. Other senior 

DOJ officials also criticized the assignment of a single OLC attorney to draft 

the legal rationale for the program. These officials noted that OLC 

traditionally adheres to a rigorous peer review process for all legal 

memoranda it issues. They also cited the importance of having the OLC 

Assistant Attorney General, a Senate-confirmed official accountable for the 

work of that office, be aware of all OLC legal memoranda. 

Gonzales told the DOJ OIG that the Yoo opinions represented the 

legal opinion of DOJ, and that it was Ashcroft's decision as to how to satisfy 

his obligations as Attorney General. Gonzales told the DOJ OIG that 

Ashcroft complained to the White House that it was "inconvenient" not to 

have the Deputy Attorney General or Ashcroft's Chief of Staff read into the 

PSP, but Gonzales also stated that he never got the sense from Ashcroft that 

this affected the quality of the legal advice about the program that DOJ 

provided to the White House. As noted, Ashcroft declined the DOJ OIG's 

request for an interview. The DOJ OIG therefore was unable to determine 

from Ashcroft whether he sought additional DOJ read-ins to assist in the 

legal analysis of the program, how hard he may have pressed for these 

additional read-ins, or whether he believed he was receiving adequate legal 

advice about the program from Yoo alone during this early phase of the PSP. 

III. 	 IMPLEMENTATION OF THE PRESIDENT'S SURVEILLANCE 

PROGRAM 

A. 	 NSA Intelligence Activities under the PSP 

According to the NSA OIG report, the first Presidential Authorization 

was the product of discussions between former NSA Director Hayden and 

White House officials. Hayden also consulted with NSA senior technical 

experts and experienced attorneys from the NSA's Office of General Counsel. 

While he consulted with NSA personnel in identifying critical intelligence 

14 

gaps, only Hayden knew about and participated in the development of the 

Presidential Authorization by serving as a technical advisor. After the 

Authorization was signed, NSA attorneys supported the lawfulness of the 

resulting program. Hayden stated that DOJ did not participate in his early 

meetings about the NSA's collection activities. As noted, the Attorney 

General was read into the program on the same day he signed the first 

Authorization as to form and legality. 

When the NSA received the first Presidential Authorization, Hayden 

noted that he was assured by the signature of the Attorney General that the 

program was iawful and had been reviewed by the White House and DOJ. 

After Hayden received the first Authorization, he assembled 80 to 90 

people in a conference room and explained what the President had 

authorized. Hayden said: "We're going to do exactly what he said and not 

one photon or electron more." The NSA's purpose in implementing the PSP 

was to collect foreign intelligence. According to Hayden, the activities were 

targeted and focused with the purpose of "hot pursuit" of communications 

entering or leaving the United States involving individuals believed to be 

associated with al-Qa'ida, not to intercept conversations between people in 

the United States. The intercepted communications had to be reasonably 

believed to be al-Qa'ida communications, one end of which was in the 

United States. 

According to the NSA OIG, the PSP had standards for targeting 

al-Qa'ida. There were several layers of review, starting with an NSA 

management review, and the NSA OIG conducted a review of target folders 

to ensure compliance with program standards and additional management 

controls.13 A sample of target folders was tested to determine whether 

targeting decisions were adequately supported. Any ambiguities were 

discussed with analysts and adequately resolved. 

The NSA OIG reported that the NSA's conduct of the PSP was 

reviewed and monitored by the NSA Office of General Counsel and the NSA 

OIG. According to the NSA OIG, NSA employees involved in the program 

received tailored training and their work was overseen to ensure that all 

activities were consistent with the letter and intent of the Authorization and 

with the protection of civil liberties. The NSA OIG report concluded that it 

found no evidence of intentional misuse of the PSP. 

13 Internal control, or management control, comprises the plans, methods, and 

procedures used to meet missions, goals, and objectives. It provides reasonable assurance 

that an entity is effective and efficient in its operations, reliable in its reporting, and 

compliant with applicable laws and regulations. 

15 

Hayden stated that although he understood that the PSP activities 

were more aggressive than those available traditionally under FISA, he 

believed that the PSP was less intrusive because the period of time in which 

collection was conducted was, in most cases, far less than was authorized in 

a typical FISC order. Additionally, the sole purpose of the overall PSP was 

to detect and prevent terrorism against the United States. According to 

Hayden, the program was designed to provide the NSA with the operational 

agility to cover terrorism-related targets. 

B. Access to the PSP 

1. Executive Branch Personnel 

Knowledge of the PSP was strictly controlled and limited at the 

express direction of the White House. Further information about the 

number of Executive Branch employees who were read into the program is 

provided in the classified report. 

As discussed below and in more detail in the DOJ OIG report, the 

DOJ OIG found that overly restrictive limitations on the number of DOJ 

personnel read into the program created several problems. Among other 

things, these limitations prevented DOJ from adequately reviewing the PSP's 

legality during the earliest phase of the program's operation. The 

subsequent identification of what DOJ officials perceived to be serious 

factual and legal flaws in Yoo's early legal analysis ofthe PSP also 

precipitated a major dispute between DOJ and the White House over 

reauthorization of the program that nearly led to the resignations of several 

senior DOJ and FBI officials in March 2004. In addition, the ODNI OIG 

found that the opportunity for ODNI oversight components to participate in 

oversight of the PSP was limited by ODNI oversight personnel not being 

granted timely access to the PSP. 

2. Congressional Briefings 

On October 25,2001, White House officials and Hayden conducted a 

briefing on the PSP for the Chairman and Ranking Member of the House 

Permanent Select Committee on Intelligence, Nancy P. Pelosi and Porter J. 

Goss; and the Chairman and Vice Chairman of the Senate Select Committee 

on Intelligence, D. Robert Graham and Richard J. Shelby. According to the 

NSA, between October 25,2001, and January 17,2007, Hayden and 

current NSA Director Keith Alexander, sometimes supported by other NSA 

personnel, conducted approximately 49 briefings to members of Congress 

and their staff, 17 of which took place before the December 2005 media 

reports regarding what was called the "Terrorist Surveillance Program." 

Hayden told us that during the many PSP briefings to members of Congress 

no one ever suggested that NSA should stop the program. 

16 
3. Foreign Intelligence Surveillance Court Briefings 

From January 2002 to January 2006, only FISC Presiding Judge 

Royce Lamberth, followed by Presiding Judge Colleen Kollar-Kotelly, were 

read into the PSP. The classified report and the full DOJ OIG report 

describe the circumstances under which the Presiding Judge was notified of 

the existence of the PSP and read into the program, and the measures 

subsequently taken to address the effect of the PSP on the government's 

relationship with the FISC. 

4. FBI Participation in the PSP 

The DOJ OIG report also describes the FBI's participation in the PSP, 

particularly as a recipient of intelligence collected under the program. The 

DOJ OIG addresses the challenges the FBI faced in disseminating this 

information to FBI field offices for investigation without revealing the source 

of the information, as well as the efforts the FBI made to improve 

cooperation with the NSA to enhance the usefulness of PSP-derived 

information to FBI agents. Further details about these topics are classified 

and therefore cannot be discussed here. The DOJ OIG generally found that 

the FBI implemented reasonable procedures for expeditiously disseminating 

PSP-derived information to FBI field offices for investigation while protecting 

the sources and methods by which the information was obtained. However, 

the DOJ OIG also found that the highly compartmented nature of the PSP 

created obstacles for the FBI's process for handling program-derived 

information and understandably frustrated FBI agents responsible for 

investigating the information. 

5. CIA Participation in the PSP 

The CIA OIG report describes the CIA's participation in the PSP. CIA 

officials, as PSP consumers, requested information from the program and 

utilized this information in their analyses. The CIA OIG found that CIA 

officials appeared to have had an adequate understanding of the 

justification needed to request PSP-derived information, and that CIA 

requests were adequately justified. 

Senior CIA officials, including former Directors of Central Intelligence 

(DCI) Hayden and Goss, and former Acting Director McLaughlin, stated that 

the PSP addressed a gap in intelligence collection. Following the terrorist 

attacks on September 11, 2001, there was concern that additional acts of 

terrorism would be perpetrated by terrorist cells already inside the United 

States. Senior IC officials believed that providing IC analysts access to 

increased signals intelligence could lead to the discovery of terrorists in the 

U.S. and planned terrorist attacks. However, collection of such 

communications required authorization under FISA, and there was 

17 
widespread belief among senior IC and CIA officials that the process for 

obtaining FISA authorization was too cumbersome and time consuming to 

address the current threat. CIA officials stated that FISA required extensive 

paperwork and high-level reviews and approvals by the DCI and the 

Attorney General and the FISC did not always approve FISA applications in 

a timely manner. Hayden and other senior IC officials also told the CIA OIG 

that, at the time that the PSP operated, Congress had not updated FISA 

since its 1978 enactment to reflect changes in communication technologies. 

6. ODNI Participation in the PSP 

PSP-derived information was closely held within the ODNI and was 

made available to a limited number of NCTC analysts for review or, if 

appropriate, use in preparing NCTC analytical products. Generally, the 

NCTC analysts approved for PSP access received PSP-derived information in 

the form of NSA intelligence products. NCTC analysts told the ODNI OIG 

that they generally obtained access to the PSP-derived information from a 

secure IC database or directly from an NSA representative. NCTC analysts 

told the ODNI OIG that the PSP-derived information was subject to stringent 

security protections. The NCTC analysts said that they received training 

regarding the proper handling of IC signals intelligence, and they reported 

that they handled all such information, including PSP-derived information, 

consistent with standard rules and procedures. 

c. Impact of PSP-Derived Information on the FISA Process 

Chapters Three and Six of the DOJ OIG report describe how DOJ and 

the FISC addressed the impact PSP-derived information had on the FISA 

process. The DOJ OIG concluded that it was foreseeable that such 

information might impact the process and that the initial delay in reading 

anyone from DOJ's Office of Intelligence Policy and Review (OIPR) or the 

FISC into the PSP unnecessarily jeopardized DOJ's relationship with the 

Court. In addition, overly restrictive limitations on the number of OIPR 

attorneys and FISC judges who were read into the program created 

significant and avoidable problems of workload imbalance in the functioning 

both of OIPR and the FISC. The DOJ OIG concluded that once the PSP 

began to affect the functioning of the FISA process, the number of OIPR staff 

and FISC judges read into the PSP to manage the program's impact should 

have increased. 

D. Discovery Issues 

The DOJ OIG reviewed DOJ's handling of PSP information with 

respect to its discovery obligations in international terrorism prosecutions. 

DOJ was aware as early as 2002 that information collected under the PSP 

could have implications for DOJ's litigation responsibilities under Federal 

18 

Rule of Criminal Procedure Rule 16 and Brady v. MC1'rylahci,37:3 0:8.83 

(1963). 

Analysis of this discovery issue was first assigned f() oib DeputY 

Assistant Attorney General Yoo in 2003: However, no DOJ attorneys with 

terrorism prosecution responsibilities were read into the PSP until 

mid-2004, and as a result DOJ continued to lack the advice of attorneys 

who were best equipped to identify and examine the discovery issues in 

connection with the PSP. 

Since then, DOJ has taken steps to address discovery issues with 

respect to the PSP, which is discussed in the DOJ OIG classified report. 

Based upon its review of DOJ's handling of these issues, the DOJ OIG 

recommends that DOJ assess its discovery obligations regarding 

PSP-derived information, if any, in international terrorism prosecutions. 

The DOJ OIG also recommends that DOJ carefully consider whether it must 

re-examine past cases to see whether potentially discoverable but 

undisclosed Rule 16 or Brady material was collected under the PSP, and 

take appropriate steps to ensure that it has complied with its discovery 

obligations in such cases. In addition, the DOJ OIG recommends that DOJ 

implement a procedure to identify PSP-derived information, if any, that may 

be associated with international terrorism cases currently pending or likely 

to be brought in the future and evaluate whether such information should 

be disclosed in light of the government's discovery obligations under Rule 16 

and Brady. 

IV. 	 LEGAL REASSESSMENT OF THE PRESIDENT'S SURVEILLANCE 

PROGRAM 

Chapter Four of the DOJ OIG's report describes the period in late 

2003 and early 2004 when DOJ determined that aspects of the PSP were 

not supported by law and advised the President that the program should be 

modified. 

A. 	 Justice Department Attorneys Become Concerned About 

the Legality of Some Activities under the PSP 

As noted above, John Yoo was the sole OLC attorney who advised 

Attorney General Ashcroft and White House officials on the PSP from the 

program's inception in October 2001 through Yoo's resignation from DOJ in 

May 2003. Upon Yoo's departure, another DOJ official, Patrick Philbin, was 

selected by the White House to be read into the PSP to assume Yoo's role as 

advisor to the Attorney General concerning the program. In addition, Jack 

Goldsmith replaced Jay Bybee as the Assistant Attorney General for OLC on 

October 6,2003. Even though Bybee had never been read into the PSP, 

19 

Philbin persuaded Counsel to the Vice President David Addington to read in 

Goldsmith, Bybee's replacement. 

After being read into the PSP, Goldsmith and Philbin became 

concerned about the factual and legal basis for Yoo's legal memoranda 

supporting the program. For example, FISA prohibits persons from 

intentionally engaging in electronic surveillance "under color of law except 

as authorized by statute[.]" 50 U.S.C. § 1809(a). Yoo's analysis concluded 

that this provision did not implicate the legality of the PSP because FISA did 

not expressly apply to wartime operations. However, Yoo's memoranda 

omitted any reference to the FISA provision allowing the interception of 

electronic communications without a warrant for a period of 15 days 

following a congressional declaration of war. See 50 U.S.C. § 181l. 

Goldsmith and Philbin were concerned that this provision contradicted Yoo's 

assertion that Congress did not intend FISA to apply to wartime operations. 

They also were troubled by other aspects ofYoo's legal analysis and by the 

lack of an adequate factual description in his memoranda of how the PSP 

operated. 

B. OLC Begins Developing a New Legal Analysis for the PSP 

Goldsmith and Philbin began developing an analysis to more fully 

address the FISA statute with respect to the PSP. This new analysis relied 

on the legal argument that the Congressional Authorization for Use of 

Military Force Joint Resolution (AUMF), enacted shortly after the attacks of 

September 11,2001, effectively exempted some of the activities under the 

PSP from FISA. However, Goldsmith and Philbin became concerned that 

this revised analysis would not be sufficient to support the legality of certain 

aspects of the Other Intelligence Activities that the President had authorized 

under the PSP. 

Beginning in August 2003, Philbin and later Goldsmith brought their 

concerns about the OLC legal opinions to Attorney General Ashcroft. With 

Ashcroft's approval, Philbin began preparing a new OLC memorandum 

assessing the legality of the PSP. During this period in late 2003, Goldsmith 

and Philbin advised Ashcroft to continue to certify as to form and legality 

the Presidential Authorizations for the PSP pending completion of the new 

legal analysis. 

C. DOJ Officials Convey Concerns to the White House 

In December 2003, Goldsmith and Philbin met with Counsel to the 

Vice President Addington and White House Counsel Gonzales at the White 

House to express their growing concerns about the legal underpinnings of 

the program. Goldsmith said he told them that OLC was not sure the 

program could survive in its current form. According to Goldsmith's 

20 

contemporaneous notes of these events, these discussions did not 

contemplate an interruption of the program, although the White House 

officials represented that they would "agree to pull the plug" if the problems 

with the program were found to be sufficiently serious. 

In late January 2004, at Goldsmith's request, the White House agreed 

to allow Deputy Attorney General James Comey to be read into the PSP 

following Comey's confirmation as the Deputy Attorney General in December 

2003. After being briefed, Comey agreed that the concerns about Yoo's legal 

analysis were well-founded. 14 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. 

D. Conflict Between DOJ and the White House 

Comey told the DOJ OIG that he met with Attorney General Ashcroft 

on March 4, 2004, to discuss the PSP and that Ashcroft agreed with Comey 

and the other DOJ officials' assessment of the potential legal problems with 

the PSP. Later that day, Ashcroft was struck with severe gallstone 

pancreatitis and was admitted to the George Washington University Hospital 

in Washington, D.C.IS 

On March 5, 2004, Goldsmith advised Comey by memorandum that 

under the circumstances of Ashcroft's medical condition and 

hospitalization, a "clear basis" existed for Comey to determine that "this is a 

case of 'absence or disability' of the Attorney General" within the meaning of 

28 U.S.C. § 508(a). The "cc" line of Goldsmith's memorandum to Comey 

indicated that a copy of the memorandum was also sent to White House 

Counsel Gonzales. 

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 

14 Corney also discussed DOJ's concerns about the legality of the program with FBI 

Director Mueller on March 1,2004. Mueller told the DOJ OIG that this was the first time 

he had been made aware of DOJ's concerns. 

15 Ashcroft's doctors did not clear Ashcroft to resume his duties as Attorney 

General until March 31, 2004. 

21 
Corney 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. 

~ 

On Saturday, March 6, Goldsmith and Philbin, with Corney's 

concurrence, met with Addington and Gonzales at the White House to 

convey their conclusions that certain activities in the PSP should cease. 

According to Goldsmith's notes, Addington and Gonzales "reacted calmly 

and said they would get back with us." 

On Sunday, March 7,2004, Goldsmith and Philbin met again with 

Addington and Gonzales at the White House. According to Goldsmith, the 

White House officials informed Goldsmith and Philbin that they disagreed 

with their interpretation of Yoo's memoranda and on the need to change any 

of the NSA's intelligence activities under the PSP. 

On March 9 Gonzales called Goldsmith to the White House in an 

effort to persuade him that his criticisms of Yoo's memoranda were incorrect 

and that Yoo's analysis provided sufficient legal support for the program. 

After Goldsmith disagreed, Gonzales next argued for a "30-day bridge" to get 

past the expiration of the current Presidential Authorization on March 11, 

2004. Gonzales reasoned that Ashcroft, who was still hospitalized, was not 

in any condition to sign a renewal of the Authorization, and that a "30-day 

bridge" would move the situation to a point where Ashcroft would be well 

enough to approve the program. Goldsmith told Gonzales he could not 

agree to recommend an extension because aspects of the program lacked 

legal support. 

At noon that day, another meeting was held in the White House office 

of Andrew Card, the President's Chief of Staff. According to Director 

Mueller's notes, Mueller, Card, Vice President Cheney, CIA Deputy Director 

McLaughlin, Hayden, Gonzales, and other unspecified officials were present. 

Corney, Goldsmith, and Philbin were not invited to this meeting. After a 

presentation on the value of the PSP by NSA and CIA officials, it was then 

explained to the group that Corney "has problems" with some activities 

authorized under the program. Mueller's notes state that Vice President 

Cheney suggested that "the President may have to reauthorize without [the] 

blessing of DOJ," to which Mueller responded, "I could have a problem with 

that," and that the FBI would "have to review legality of continued 

participation in the program." 

Another meeting at the White House was held on March 9, this time 

with Corney, Goldsmith, and Philbin present. Gonzales told the DOJ OIG 

that the meeting was held to make sure that Corney understood what was at 

stake with the PSP and to demonstrate the program's value. Corney said 

22 

Vice President Cheney stressed that the PSP was "critically important" and 

warned that Corney would risk "thousands" of lives if Corney did not agree to 

recertify the program. Corney said he stated at the meeting that he, as 

Acting Attorney General, could not support reauthorizing certain intelligence 

activities unless they were modified. According to Corney, the White House 

officials said they could not agree to that modification. 

Goldsmith, Philbin, and Corney 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 Corney that some of the Other Intelligence Activities under the 

PSP could not be legally supported and would have to be changed or shut 

down. 

Gonzales told the DOJ OIG that after President Bush was advised of 

the results of the March 9, 2004, meeting, the President instructed Vice 

President Cheney on the morning of Wednesday, March 10, to call a meeting 

with congressional leaders to advise them of the impasse with DOJ. On the 

afternoon of March 10, at approximately 4:00 or 5:00 p.m., Gonzales and 

other White House and intelligence agency officials, including Vice President 

Cheney, Card, Hayden, McLaughlin, and Tenet, convened an "emergency 

meeting" with congressional leaders in the White House Situation Room. 

The congressional leaders in attendance were Senate Majority and Minority 

Leaders William H. "Bill" Frist and Thomas A. Daschle; Senate Select 

Committee on Intelligence Chairman Pat Roberts and Vice Chairman Jay 

Rockefeller; Speaker of the House Dennis Hastert and House Minority 

Leader Nancy Pelosi; and House Permanent Select Committee on 

Intelligence Chair Porter Goss and Ranking Member Jane Harman. This 

congressional group was known informally as the "Gang of Eight." No 

officials from DOJ were asked to attend the meeting. 

According to Gonzales's notes of the meeting, individual congressional 

leaders expressed thoughts and concerns related to the program. However, 

Gonzales told the DOJ OIG that the consensus of the congressional leaders 

was that the program should continue. 16 

16 When Gonzales testified before the Senate Judiciary Committee on July 24, 

2007, he essentially described the congressional leaders' reactions to the March 10, 2004, 

"Gang of Eight" briefing as he did in his handwritten notes of the briefing, stating, "The 

consensus in the room from the congressional leadership is that we should continue the 

activities, at least for now." However, after Gonzales testified Representative Pelosi, Senator 

Rockefeller, and Senator Daschle issued statements sharply disputing Gonzales's 

characterization of their statements at the March 10, 2004, meeting, stating that there was 

no consensus at the meeting that the program should proceed. Pelosi's office also issued a 

statement that she "made clear my disagreement with what the White House was asking" 

concerning the program. The DOJ OIG did not attempt to interview the congressional 

(Cont'd.) 

23 
Gonzales told the DOJ OIG that following the meeting with the 

congressional leaders on March 10, President Bush instructed him and 

Card to go to the George Washington University Hospital to speak to 

Ashcroft, who was in the intensive care unit recovering from surgery. 

According to notes from Ashcroft's FBI security detail, at 6:20 p.m. 

that evening Card called the hospital and spoke with an agent in Ashcroft's 

security detail, advising him that President Bush would be calling shortly to 

speak with Ashcroft. Ashcroft's wife told the agent that Ashcroft would not 

accept the call. Ten minutes later, the agent called Ashcroft's Chief of Staff 

David Ayres at DOJ to request that Ayres speak with Card about the 

President's intention to call Ashcroft. The agent conveyed to Ayres Mrs. 

Ashcroft's desire that no calls be made to Ashcroft for another day or two. 

However, at 6:45 p.m., Card and the President called the hospital and, 

according to the agent's notes, "insisted on speaking [with Attorney General 

Ashcroft]." According to the agent's notes, Mrs. Ashcroft took the call from 

Card and the President and was informed that Gonzales and Card were 

coming to the hospital to see Ashcroft regarding a matter involving national 

security. 

At approximately 7:00 p.m., after learning that Gonzales and Card 

were on their way to the hospital, Ayres relayed this information to Corney. 

According to Corney's May 2007 testimony before the Senate Judiciary 

Committee, Corney called his Chief of Staff and directed him to "get as many 

of my people as possible to the hospital immediately." Corney next called 

FBI Director Mueller and told him that Gonzales and Card were on their way 

to the hospital to see Ashcroft, and that Ashcroft was in no condition to 

receive guests, much less make a decision about whether to recertify the 

PSP. According to Mueller's notes, Corney asked Mueller to come to the 

hospital to "witness [the] condition of AG." Mueller told Corney he would go 

to the hospital right away. 

Philbin said he was leaving work that evening when he received a call 

from Corney, who told Philbin that he needed to get to the hospital right 

away because Gonzales and Card were on their way there "to get Ashcroft to 

sign something." Corney also directed Philbin to call Goldsmith and tell him 

what was happening. 

Corney arrived at the hospital between 7: 10 and 7:30 p.m. In his 

congressional testimony, Corney said he ran up the stairs with his security 

detail to Ashcroft's floor, and he entered Ashcroft's room, which he 

described as darkened, and found Ashcroft lying in bed and his wife 

leaders and obtain their recollections as to what was said at this meeting because this was 

beyond the scope of its review. 

24 
standing by his side. Corney said he began speaking to Ashcroft, and that it 

was not clear that Ashcroft could focus and that he "seemed pretty bad 

off[.]" 

Goldsmith and Philbin arrived at the hospital within a few minutes of 

each other. Corney, Goldsmith, and Philbin met briefly in an FBI "command 

post" that had been set up in a room adjacent to Ashcroft's room. Moments 

later, the command post was notified that Card and Gonzales had arrived at 

the hospital and were on their way upstairs to see Ashcroft. Corney, 

Goldsmith, and Philbin entered Ashcroft's room and, according to 

Goldsmith's notes, Corney and the others advised Ashcroft "not to sign 

anything." 

Gonzales and Card entered Ashcroft's hospital room at 7:35 p.m., 

according to the FBI agent's notes. The two stood across from Mrs. Ashcroft 

at the head of the bed, with Corney, Goldsmith, and Philbin behind them. 

Gonzales told the DOJ OIG that he carried with him in a manila envelope 

the March 11, 2004, Presidential Authorization for Ashcroft to sign. 

According to Philbin, Gonzales first asked Ashcroft how he was feeling and 

Ashcroft replied, "Not well." Gonzales then said words to the effect, "You 

know, there's a reauthorization that has to be renewed ...." Gonzales told 

us that he may also have told Ashcroft that White House officials had met 

with congressional leaders "to pursue a legislative fix." 

Corney testified to the Senate Judiciary Committee that at this point 

Ashcroft told Gonzales and Card "in very strong terms" about his legal 

concerns with the PSP, which Corney testified Ashcroft drew from his 

meeting with Corney about the program a week earlier. Corney testified that 

Ashcroft next stated: 

"But that doesn't matter, because I'm not the Attorney General. 

There is the Attorney General," and he pointed to me - I was 

just to his left. The two men [Gonzales and Card] did not 

acknowledge me; they turned and walked from the room. 

Records kept by the Attorney General's security detail indicate that 

Gonzales and Card left Ashcroft's room at 7:40 p.m. Moments after 

Gonzales and Card departed, Mueller arrived at the hospital. At 

approximately 8:00 p.m., Mueller went into Ashcroft's room for 5 to 10 

minutes. Mueller wrote in his notes: "AG in chair; is feeble, barely 

articulate, clearly stressed." 

Before leaving the hospital, Corney received a call from White House 

Chief of Staff Card. Corney testified that Card was very upset and 

demanded that Corney come to the White House immediately. Corney told 

Card that he would meet with him, but not without a witness, and that he 

25 

intended that witness to be DOJ Solicitor General Ted Olson. Corney and 

Olson subsequently went to the White House at about 11 :00 p.m. that 

evening and met with Gonzales and Card. Gonzales told the DOJ OIG that 

little more was achieved at this meeting other than a general 

acknowledgement that a "situation" continued to exist because of the 

disagreement between DOJ and the White House regarding legal 

authorization for the program. 

E. 	 White House Counsel Certifies Presidential Authorization 

Without Department of Justice Concurrence 

On the morning of March 11,2004, with the Presidential 

Authorization set to expire, President Bush signed a new Authorization for 

the PSP. In a departure from the past practice of having the Attorney 

General certify the Authorization as to form and legality, the March 11 

Authorization was certified by White House Counsel Gonzales. The 

March 11 Authorization also differed markedly from prior Authorizations in 

three other respects. It explicitly asserted that the President's exercise of 

his Article II Commander-in-Chief authority displaced any contrary 

provisions of law, including FISA. 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 

Presidential Authorizations as to form and legality, the Attorney General 

previously had authorized the same activities now being approved under the 

March 11 Authorization. I7 

White House Chief of Staff Card informed Corney by telephone on the 

morning of March 11,2004, that the President had signed the new 

Authorization that morning. At approximately noon, ,Gonzales called 

Goldsmith to inform him that the President, in issuing the Authorization, 

had made an interpretation of law concerning his authorities and that DOJ 

should not act in contradiction of the President's determinations. 

Also at noon on March 11, Director Mueller met with Card at the 

White House. According to Mueller's notes, Card told Mueller that if no 

"legislative fix" could be found by May 6, 2004, when the March 11 

Authorization was set to expire, the program would be discontinued. 

17 The DOJ OIG determined that this statement subsequently was removed from 

future Authorizations after Ashcroft complained to Gonzales that the statement was 

"inappropriate." 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. 

26 
Mueller wrote that he told Card that the failure to have DOJ representation 

at the congressional briefing and the attempt to have Ashcroft certify the 

Authorization without going through Corney "gave the strong perception that 

the [White House] was trying to do an end run around the Acting [Attorney 

General] whom they knew to have serious concerns as to the legality of 

portions of the program." Card responded that he and Gonzales were 

unaware at the time of the hospital visit that Corney was the Acting Attorney 

General, and that they had only been following the directions of the 

President. 

F. Department of Justice and FBI Officials Consider Resigning 

Several senior DOJ and FBI officials considered resigning after the 

Presidential Authorization was signed without DOJ's concurrence. Corney 

told the DOJ OIG that he drafted a letter of resignation because he believed 

it was impossible for him to remain with DOJ if the President would do 

something DOJ said was not legally supportable. Corney also testified that 

Ashcroft's Chief of Staff David Ayres believed Ashcroft also was likely to 

resign and thus Ayres urged Corney to wait until Ashcroft was well enough 

to resign with him.Is 

Goldsmith told the DOJ OIG he drafted a resignation letter at around 

the same time as Corney. According to his contemporaneous notes, 

Goldsmith cited the "shoddiness" of the prior OLC legal review, the 

"over-secrecy" of the PSP, and the "shameful" incident at the hospital as 

among his grievances. 

At approximately 1:30 a.m. on March 12, 2004, FBI Director Mueller 

drafted by hand a letter stating, in part: "[A]fter reviewing the plain 

language of the FISA statute, and the order issued yesterday by the 

President ... and in the absence of further clarification of the legality of the 

program from the Attorney General, I am forced to withdraw the FBI from 

participation in the program. Further, should the President order the 

continuation of the FBI's participation in the program, and in the absence of 

further legal advice from the AG, I would be constrained to resign as 

Director of the FBI." Mueller told the DOJ OIG that he planned on having 

the letter typed and then tendering it, but that based on subsequent events 

his resignation was not necessary. 

18 In written responses to Senator Charles Schumer following his testimony, Corney 

wrote that he believed that several senior DOJ officials, including Chuck Rosenberg, Daniel 

Levin, James Baker, David Ayres, and Deputy Chief of Staff to the Attorney General David 

Israelite, were also prepared to resign. Corney wrote that he believed that "a large portion" 

of his staff also would have resigned if he had. 

27 

On the morning of March 12,2004, Corney and Mueller attended the 

regular daily threat briefing with the President in the Oval Office. Corney 

said that following the briefing President Bush called him into the 

President's private study for an "unscheduled meeting." Corney told the 

President of DOJ's legal concerns regarding the PSP. According to Corney, 

the President's response indicated that he had not been fully informed of 

these concerns. Corney told the President that the President's staff had 

been advised of these issues "for weeks." According to Corney, the President 

said that he just needed until May 6 (the date of the next Authorization), 

and that if he could not get Congress to fix FISA by then he would shut 

down the program. The President emphasized the importance of the 

program and that it "saves lives." 

The President next met with Mueller. According to Mueller's notes, 

Mueller told the President of his concerns regarding the FBI's continued 

participation in the program without an opinion from the Attorney General 

as to its legality, and that he was considering resigning if the FBI were 

directed to continue to participate without the concurrence of the Attorney 

General. Mueller wrote that he explained to the President that he had an 

"independent obligation to the FBI and to DOJ to assure the legality of 

actions we undertook, and that a presidential order alone could not do 

that." According to Mueller's notes, the President then directed Mueller to. 

meet with Corney and other PSP principals to address the legal concerns so 

that the FBI could continue participating in the program "as appropriate 

under the law." 

On the morning of March 12,2004, Corney decided not to direct the 

FBI to cease cooperating with the NSA in conjunction with the program. 

Corney's decision is documented in a one-page memorandum from 

Goldsmith to Corney in which 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 Corney 

in his exercise of the powers of the Attorney General. 

On March 12,2004 an interagency working group led by OLC was 

convened to continue reanalyzing the legality of the PSP. In the days that 

followed, 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 Corney drafted a memorandum to White House 

Counsel Gonzales setting out his advice to the President. According to the 

memorandum, Corney advised that DOJ remained unable to find a legal 

basis to support certain Other Intelligence Activities that had been 

28 

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 by letter on the evening of March 16. The letter 

stated, in part: 

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. 

G. White House Agrees to Modify the PSP 

Notwithstanding Gonzales's letter, 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. The President's directive was expressed in two 

modifications to the March 11, 2004 Presidential Authorization. 

On May 6,2004 Goldsmith and Philbin completed an OLC legal 

memorandum assessing the legality of the PSP as it was operating at that 

time. The lOB-page memorandum traced the history of the program and 

analyzed the legality of all of the intelligence activities conducted under the 

program in light of applicable statutes, Executive Orders, cases, and 

constitutional provisions. Much of the legal reasoning in the May 6, 2004 

OLC memorandum was publicly released by DOJ in a "White Paper" issued 

after one aspect of the program was revealed in The New York Times and 

publicly confirmed by the President in December 2005 as the Terrorist 

Surveillance Program. The OLC memorandum stated that the Authorization 

for Use of Military Force (AUMF) passed by Congress shortly after the 

attacks of September 11, 2001 gave the President authority to use both 

domestically and abroad "all necessary and appropriate force," including 

signals intelligence capabilities, to prevent future acts of international 

terrorism against the United States. According to the memorandum, the 

AUMF was properly read as an express authorization to conduct targeted 

electronic surveillance against al-Qa'ida and its affiliates, the entities 

29 

responsible for attacking the United States, thereby supporting the 

President's directives to conduct these activities under the PSP. 

H. 	 Department of Justice OIG Conclusions 

The DOJ OIG concluded that it was extraordinary and inappropriate 

that a single DOJ attorney, John Yoo, was relied upon to conduct the initial 

legal assessment of the PSP, and that the lack of oversight and review of 

Yoo's work, as customarily is the practice of OLC, contributed to a legal 

analysis of the PSP that at a minimum was factually flawed. Deficiencies in 

the legal memoranda became apparent once additional DOJ attorneys were 

read into the program in 2003 and when those attorneys sought a greater 

understanding of the PSP's operation. The DOJ OIG concluded that the 

White House's strict controls over DOJ access to the PSP undermined DOJ's 

ability to perform its critical legal function during the PSP's early phase of 

operation. 

The DOJ OIG also concluded that the circumstances plainly called for 

additional DOJ resources to be applied to the legal review of the program 

and that it was the Attorney General's responsibility to be aware of this need 

and to take steps to address it. Ashcroft's request during this period that 

his chief of staff David Ayres and Deputy Attorney General Larry Thompson 

be read into the program was not approved. However, the DOJ OIG could 

not determine whether Attorney General Ashcroft aggressively sought 

additional read-ins to assist with DOJ's legal review of the program during 

this period because Ashcroft did not agree to be interviewed. 

V. 	 TRANSITION OF CERTAIN PROGRAM ACTIVITIES TO FOREIGN 

INTELLIGENCE SURVEILLANCE COURT ORDERS 

Certain activities that were originally authorized as part of the PSP 

have subsequently been authorized under orders issued by the Foreign 

Intelligence Surveillance Court (FISC). The activities transitioned in this 

manner included the interception of certain international communications 

that the President publicly described as the "Terrorist Surveillance 

Program." 

As a result of this transition, the President decided not to reauthorize 

these activities and the final Presidential Authorization expired on February 

1, 2007. The White House stated that work on the transition of authority 

over a two-year period addressed Administration concerns about preserving 

the speed and agility that the Terrorist Surveillance Program provided. 

The transition of certain PSP-authorized activities to FISC orders is 

described in detail in Section 5 of the classified report and Chapter Five of 

30 

the DOJ OIG Report. Further details regarding this transition are classified 

and therefore cannot be addressed in this unclassified report. 

In August 2007, the Protect America Act was enacted, amending FISA 

to address the government's ability to conduct electronic surveillance in the 

United States of persons reasonably believed to be located outside the 

United States. This legislation expired in early 2008, and in July 2008 the 

FISA Amendments Act of 2008 was enacted. This latter law authorized the 

government to intercept inside the United States any communications of 

non-U.S. persons reasonably believed to be located outside the United 

States, provided a significant purpose of the acquisition pertains to foreign 

intelligence. This legislation gave the government even broader authority to 

intercept international communications than did the provisions of the 

Presidential Authorizations governing the activities that the President 

acknowledged in December 2005 as the Terrorist Surveillance Program. 

The DOJ OIG review concluded that several considerations favored 

initiating the process of transitioning the PSP to FISA authority earlier than 

had been done, especially as the program became less a temporary response 

to the September 11 terrorist attacks and more a permanent surveillance 

tool. These considerations included the PSP's effect on privacy interests of 

U.S. persons, the instability of the legal reasoning on which the program 

rested for several years, and the substantial restrictions placed on FBI 

agents' access to and use of program-derived information due to the highly 

classified status of the PSP. 

VI. 	 IMPACT OF THE PRESIDENT'S SURVEILLANCE PROGRAM ON 

INTELLIGENCE COMMUNITY COUNTERTERRORISM EFFORTS 

A. 	 NSA's Assessment of the PSP 

The NSA OIG reported that Hayden, referring to portions of the PSP in 

2005, said there had probably been no communications more important to 

NSA efforts to defend the nation than those involving al-Qa'ida. NSA 

collected communications when one end was inside the United States and 

one end was associated with al-Qa'ida or terrorist groups associated with 

al Qa'ida in order to detect and prevent attacks inside the United States. 

Hayden stated that "the program in this regard has been successful." 

During the May 2006 Senate hearing on his nomination to be CIA Director, 

Hayden said that, had the PSP been in place before the September 2001 

attacks, hijackers Khalid Almihdhar and Nawaf Alhazmi almost certainly 

would have been identified and located. 

In May 2009, Hayden told NSA OIG that the value of the Program was 

in knowing that NSA signals intelligence activities under the PSP covered an 

important "quadrant" of terrorist communications. NSA's Deputy Director 

31 

echoed Hayden's comment when he said that the value of the PSP was in 

the confidence it provided that someone was looking at the seam between 

the foreign and domestic intelligence domains. 

B. DOJ OIG's Assessment of the PSP 

In 2004 and 2006, the FBI's Office of General Counsel (OGC) 

attempted to assess the value of PSP information on FBI counterterrorism 

efforts. Neither of these efforts represented a comprehensive assessment of 

the PSP's value. The FBI conducted a more comprehensive survey of the 

impact of PSP-derived information, also in 2006. The results of these 

surveys are summarized in the DOJ OIG Report. Based in part on the 

results of one study, FBI management, including Director Mueller and 

Deputy Director John Pistole, concluded that the PSP was "of value." 

The DOJ OIG sought as part of its review to assess the role of 

PSP-derived information and its value to the FBI's overall counterterrorism 

efforts. Director Mueller told the DOJ OIG that he believes the PSP was 

useful. Mueller said that the FBI must follow every lead it receives in order 

to prevent future terrorist attacks and that to the extent such information 

can be gathered and used legally it must be exploited. Mueller also stated 

that he "would not dismiss the potency of a program based on the 

percentage of hits." 

The DOJ OIG interviewed FBI officials, agents, and analysts 

responsible for handling PSP information about their experiences with the 

program. These assessments, more fully described in Chapter Six of the 

DOJ OIG's report, generally were supportive of the program as "one tool of 

many" in the FBI's anti-terrorism efforts that "could help move cases 

forward." Even though most PSP leads were determined not to have any 

connection to terrorism, many of the FBI witnesses believed the mere 

possibility of the leads producing useful information made investigating the 

leads worthwhile. 

However, the DOJ OIG also found that the exceptionally 

compartmented nature of the program created some frustration for FBI 

personnel. Some agents and analysts criticized the PSP-derived information 

they received for providing insufficient details, and the agents who managed 

counterterrorism programs at the FBI field offices the DOJ OIG visited said 

the FBI's process for disseminating PSP-derived information failed to 

adequately prioritize the information for investigation. 

The DOJ OIG also examined several cases that have frequently been 

cited as examples of the PSP's contribution to the IC's counterterrorism 

efforts. These assessments, more fully described in Chapter Six of the DOJ 

32 

OIG's report, generally were supportive of the program as "one tool of many" 

in the FBI's anti-terrorism efforts. 

In sum, the DOJ OIG found it difficult to assess or quantify the 

overall effectiveness of the PSP program as it relates to the FBI's 

counterterrorism activities. However, based on the interviews conducted 

and documents reviewed, the DOJ OIG concluded that although 

PSP-derived information had value in some counterterrorism investigations, 

it generally played a limited role in the FBI's overall counterterrorism efforts. 

The reasons for this conclusion are classified and are described in the 

classified report and Chapter Six of the DOJ OIG report. 

As noted above, certain activities that were originally authorized as 

part of the PSP have subsequently been authorized under orders issued by 

the FISC. The DOJ OIG believes that DOJ and other IC agencies should 

continue to assess the value of information derived from such activities to 

the government's counterterrorism efforts. 

C. CIA OIG's Assessment of the PSP 

The CIA OIG reviewed the impact of the PSP on the CIA's 

counterterrorism efforts. 

The CIA OIG reported that senior administration officials considered 

the PSP to be a valuable counterterrorism tool. In his December 2005 press 

conference, President Bush also said that there was an on-going debate in 

Washington, D.C. that criticized his, and previous, administrations for not 

"connecting the dots" prior to the attacks of September 11, 2001. He went 

on to say that the USA PATRIOT Act and the NSA program (the PSP) are 

helping to connect the dots as best as his administration possibly can. 

During a December 2005 press briefing, Hayden said that information had 

been obtained through this program that would not otherwise have been 

available. Senior CIA officials also told the CIA OIG that they had received 

PSP reporting with information that was previously unavailable. One senior 

official told the CIA OIG that the program eliminated some of the 

impediments that the CIA had encountered in accessing and analyzing 

communications between foreign and domestic locations. Another said that 

the PSP was a key resource, and without it there would have been a missing 

piece of the picture. 

The CIA OIG determined that the CIA did not implement procedures 

to assess the usefulness of the product of the PSP and did not routinely 

document whether particular PSP reporting had contributed to successful 

counterterrorism operations. CIA officials, including Hayden, told the CIA 

OIG that PSP reporting was used in conjunction with reporting from other 

intelligence sources; consequently, it is difficult to attribute the success of 

33 

particular counterterrorism case exclusively to the PSP. In a May 2006 

briefing to the Senate Select Committee on Intelligence, a senior CIA official 

said that PSP reporting was rarely the sole basis for an intelligence success, 

but that it frequently played a supporting role. He went on to state that the 

program was an additional resource to enhance the CIA's understanding of 

terrorist networks and to help identify potential threats to the U.S. 

homeland. Other officials told the CIA OIG that the PSP was one of many 

tools available to them, and that the tools were often used in combination. 

NSA disseminated PSP-derived information in its normal reporting 

channels when it could be done without revealing the source of the 

information. As such, CIA officers, even those read into the program, would 

have been unaware of the full extent of PSP reporting. In the course of this 

review, the CIA OIG learned of numerous PSP reports that provided leads. 

However, because there is no means to comprehensively track how PSP 

information was incorporated into CIA analysis, officials were able to provide 

only limited information on how program reporting contributed to 

successful operations, and the CIA OIG was unable to independently draw 

any conclusion on the overall effectiveness of the program to the CIA. 

The CIA OIG determined that several factors hindered the CIA in 

making full use of the product of the PSP. Many CIA officials stated that too 

few CIA personnel at the working level were read into the PSP. At the 

program's inception, a disproportionate number' of the CIA personnel who 

were read into the PSP were senior CIA managers. According to one CIA 

manager, the tight control over access to the PSP prevented some officers 

who could have made effective use of the program reporting from being read 

in. Another official stated that the disparity between the number of senior 

CIA managers read into PSP and the number of working-level CIA personnel 

resulted in too few CIA personnel to fully utilize PSP information for 

targeting and analysis. 

Officials also told the CIA OIG that working-level CIA analysts and 

targeting officers who were read into the PSP had too many competing 

priorities, and too many other information sources and analytic tools 

available to them, to fully utilize PSP reporting. Officials also stated that 

much of the PSP reporting was vague or without context, which led analysts 

and targeting officers to rely more heavily on other information sources and 

analytic tools, which were more easily accessed and timely than the PSP. 

CIA officers also told the CIA OIG that the PSP would have been more 

fully utilized if analysts and targeting officers had obtained a better 

understanding of the program's capabilities. There was no formal training 

on the use of the PSP beyond the initial read-in to the program. Many CIA 

officers stated that the instruction provided in the read-in briefing was not 

sufficient and that they were surprised and frustrated by the lack of 

34 

additional guidance. Some officers told the CIA OIG that there was 

insufficient legal guidance on the use of PSP-derived information. 

The CIA OIG concluded that the factors that hindered the CIA in 

making full use of the PSP might have been mitigated if the CIA had 

designated an individual at an appropriate level of managerial authority who 

possessed knowledge of both the PSP and CIA counterterrorism activities to 

be responsible and accountable for overseeing CIA involvement in the 

program. 

D. ODNI's Assessment of the PSP 

Hayden told the PSP IG Group that during his tenure as Director of 

the NSA, he sought to disseminate PSP information within the IC while also 

protecting the PSP as the source of the information. Hayden said this policy 

likely resulted in IC analysts not having a full appreciation of the PSP's 

value because they likely did not realize that some NSA reporting was 

derived from the PSP. NCTC analysts confirmed that they often did not 

know if the NSA intelligence available to them was derived from the PSP. 

The NCTC analysts said they understood that NSA marked PSP information 

in a manner that protected the source of the information. 

On those occasions when the NCTC analysts knew that a particular 

NSA intelligence product was derived from the PSP, the analysts said they 

reviewed the PSP information in the same manner as other NSA intelligence 

products and, if appropriate, incorporated the PSP information into 

analytical products being prepared for the DNI and other senior intelligence 

officials. NCTC analysts with access to PSP information told the ODNI OIG 

that they had broad access to a wide variety of high-quality and fully 

evaluated terrorism related intelligence, including some of the most 

sensitive and valuable terrorism intelligence available to the IC. In this 

context, NCTC analysts characterized the PSP information as being a useful 

tool, but noted that the information was only one of several valuable sources 

of information available to them. During ODNI OIG interviews, some NCTC 

analysts and ODNI personnel described the PSP information as "one tool in 

the tool box" or used equivalent descriptions to explain their view that the 

PSP information was not of greater value than other sources of intelligence. 

The NCTC analysts noted that the NSA policy protecting the source of the 

PSP information would have resulted in them not fully understanding the 

value of the PSP information. 

Hayden said the PSP information allowed IC leaders to make valuable 

judgments regarding the allocation of national security resources. Hayden 

described the PSP as an "early warning system" for terrorist threats. 

Hayden told the ODNI OIG that the PSP was extremely valuable in 

protecting the United States from an al-Qa'ida terrorist attack. He cited 

35 

several examples of where he said the PSP information was used to disrupt 

al-Qa'ida operatives or assist in terrorism investigations. 

E. 	 Intelligence Community Activities Supported by the PSP 

Most IC officials interviewed by the PSP IG Group had difficulty citing 

specific instances where PSP reporting had directly contributed to 

counterterrorism successes. Although it was difficult for a variety of 

reasons already discussed to independently identify instances where PSP 

reporting contributed to successful counterterrorism efforts, there are 

several cases identified by IC officials and in IC documentation where PSP 

reporting may have contributed to a counterterrorism success. These cases 

cannot be discussed in this unclassified report, but are described in the 

classified report and accompanying individual OIG reports. 

VII. 	 PUBLIC STATEMENTS ABOUT THE PRESIDENT'S SURVEILLANCE 

PROGRAM 

As noted above, aspects of the PSP were first disclosed publicly in a 

series of articles in The New York Times in December 2005. Subsequently, 

Attorney General Gonzales was questioned about NSA surveillance activities 

in two public hearings before the Senate Judiciary Committee in 

February 2006 and July 2007. As part of its review, the DOJ OIG examined 

whether Attorney General Gonzales made false, inaccurate, or misleading 

statements to Congress related to the PSP in those hearings. 

Through media accounts and former Deputy Attorney General 

Corney's Senate Judiciary Committee testimony in May 2007, it was publicly 

revealed that DOJ and the White House had a major disagreement related to 

the PSP in March 2004. As discussed in Section IV of this unclassified 

report, this dispute - which resulted in the visit to Attorney General 

Ashcroft's hospital room by Gonzales and Card and brought several senior 

DOJ and FBI officials to the brink of resignation - concerned certain of the 

Other Intelligence Activities that were different from the communication 

interception activities that the President later publicly acknowledged as the 

Terrorist Surveillance Program, but that had been implemented through the 

same Presidential Authorizations. 

In testimony before the Senate Judiciary Committee, Gonzales stated 

that the dispute at issue between DOJ and the White House did not relate 

to the Terrorist Surveillance Program that the President had confirmed, but 

rather pertained to other intelligence activities. The DOJ OIG concluded 

that this testimony created the misimpression that the dispute concerned 

activities entirely unrelated to the Terrorist Surveillance Program, which 

was not accurate. As previously noted, both activities had been authorized 

by the President in a single Presidential Authorization. 

36 
In addition, the DOJ OIG concluded that Gonzales's testimony that 

DOJ attorneys did not have "reservations" or "concerns" about the program 

the "President has confirmed" (the Terrorist Surveillance Program) was 

incomplete and confusing. As detailed in Chapter Four of the DOJ OIG 

report, there also was a dispute about this portion of the program. 

Although this dispute was not the subject of the hospital room confrontation 

or the threatened resignations, DOJ's concerns over this issue were 

communicated to the White House in several meetings over a period of 

months prior to and including March 2004 before the issue was resolved. 

The DOJ OIG recognized that Attorney General Gonzales was in the 

difficult position of testifying before the Senate Judiciary Committee about a 

highly classified program in an open forum. However, the DOJ OIG 

concluded that Gonzales, as a participant in the March 2004 dispute 

between the White House and DOJ and, more importantly, as the nation's 

chief law enforcement officer, had a duty to balance his obligation not to 

disclose classified information with the need not to be misleading in his 

testimony about the events that nearly led to resignations of several senior 

officials at DOJ and the FBI. The DOJ OIG concluded that Gonzales did not 

intend to mislead Congress, but it found that his testimony was confusing, 

inaccurate, and had the effect of misleading those who were not 

knowledgeable about the program. 

VIII. CONCLUSION 

Pursuant to the FISA Amendments Act of 2008, the Inspectors 

General of the DOJ, DoD, ODNI, NSA, and CIA conducted reviews of the 

PSP. In this report, the classified report, and the accompanying individual 

reports of the participating IGs, we describe how, following the terrorist 

attacks of September 11, 2001, the President directed that the NSA's signals 

intelligence collection capabilities be used to detect and prevent acts of 

terrorism within the United States. 

Pursuant to this authority the NSA conducted new intelligence 

activities, including the collection of the content of communications into and 

out of the United States, where one party to the communication was 

reasonably believed to be a member of al-Qa'ida or its affiliates. The NSA 

analyzed this information for dissemination as leads to the IC, principally to 

the CIA and the FBI. As described in the IG reports, the scope of this 

collection authority changed over the course of the PSP. 

The IG reports describe the role of each of the participating agencies 

in the PSP, including the NSA's management and oversight of the collection 

and analysis process, the CIA's and FBI's use of the PSP-derived intelligence 

in their counterterrorism efforts, the ODNI's involvement in the program by 

37 

providing periodic threat assessments and using the program intelligence to 

produce analytical products, and DOJ's role in analyzing and certifying the 

legality of the PSP. With the exception of the NSA, the DoD had limited 

involvement in the PSP. 

The IG reports also describe the conflicting views surrounding the 

legality of aspects of the PSP during 2004, the confrontation between 

officials from DOJ and the White House about the legal basis for parts of the 

program, as well as the resolution of that conflict. The ensuing transition of 

the PSP from presidential authority to statutory authority under FISA is also 

described in the IG reports. 

The IGs also examined the impact of PSP information on 

counterterrorism efforts. Many senior IC officials believe that the PSP filled 

a gap in intelligence collection thought to exist under the FISA statute 

shortly after the al-Qa'ida terrorist attacks against the United States. 

Others within the IC, including FBI agents, CIA analysts and officers, and 

other officials had difficulty evaluating the precise contribution of the PSP to 

counterterrorism efforts because it was most often viewed as one source 

among many available analytic and intelligence-gathering tools in these 

efforts. The IG reports describe several examples of how PSP-derived 

information factored into specific investigations and operations. 

Finally, the collection activities pursued under the PSP, and under 

FISA following the PSP's transition to that authority, involved 

unprecedented collection activities. We believe the retention and use by IC 

organizations of information collected under the PSP and FISA should be 

carefully monitored. 

38 

UNCLASSIFIED 


PREPARED BY THE 


OFFICES OF INSPECTORS Gj':NERAL 


OF THE 


DEPARTMENT OF DEFENSE 


DEPARTMENT OFJUSTICE 


CENTRAL INTELLIGENCE AG:ENl 

NATIONAL SECURITY 

OFFICE OF THE DIRECTOR OF 

(U) UNCLASSIFIED 

PRESIDENT'S "'TT1.V"'TI 

REPORT No.