George W. Bush justified his warrantless wiretapping by relying on Justice Department attorney John Yoo's theories of unlimited presidential wartime powers, and started the spying operation even before Yoo issued a formal opinion, a government investigation discovered.
Essentially, President Bush took it upon himself to ignore the clear requirement of the 1978 Foreign Intelligence Surveillance Act that all domestic intelligence-related electronic spying must have a warrant from a secret federal court, not just presidential approval. Illegal wiretapping is a felony under federal law.
The July 10 report by the inspectors general of the CIA, National Security Agency, Justice Department and Defense Department also didn't identify any specific terrorist attack that was thwarted by what was known as the President's Surveillance Program (PSP), although Bush has claimed publicly that his warrantless wiretapping "helped detect and prevent terrorist attacks on our own country."
In a 38-page unclassified report, the inspectors general said most U.S. intelligence officials who were interviewed "had difficulty citing specific instances where PSP reporting had directly contributed to counterterrorism successes."
Bush authorized the PSP in October 2001, the month after the 9/11 terror attacks on New York and Washington, but Yoo's first legal opinion "explicitly addressing the legality of the PSP was not drafted" by Yoo until Nov. 2, 2001.
The inspectors general 's report also makes clear that the full PSP was more expansive than the Terrorist Surveillance Program, the warrantless wiretapping that was revealed by the New York Times in December 2005. The TSP involved intercepting calls between the United States and overseas if one party was suspected of links to al-Qaeda or to an al-Qaeda-affiliated group.
Though the undisclosed elements of the PSP remain highly classified, the report gave some hints to its scope by noting that the program originated from a post-9/11 White House request to NSA Director Michael Hayden to consider "what he might do with more authority."
Hayden then "put together information on what was operationally useful and technologically feasible," the report said. "The information formed the basis for the PSP."
In other words, the PSP stretched the limits of what the NSA could accomplish with its extraordinary capabilities to collect and analyze electronic communications around the world. Various journalistic accounts have suggested that Bush's spying program crossed the line from zeroing in on specific surveillance targets to "data-mining" a broad spectrum of electronic communications.
Suggesting that the government gathered information on many innocent people, the inspectors general stated that "the collection activities pursued under the PSP ... involved unprecedented collection activities. We believe the retention and use by IC [intelligence community] organizations of information collected under the PSP ... should be carefully monitored."
In creating the PSP, the Bush administration engaged in a pattern of factual and legal justifications that paralleled what was done with other controversial "war on terror" programs, such as the "enhanced interrogation" of detainees that included the near-drowning of waterboarding and other brutal practices widely denounced as criminal torture.
As with the torture policies, President Bush relied on exaggerations of dangers and on legal theories that were essentially pre-cooked.
Regarding the PSP, Bush's White House guided the CIA in hyping the threat of more terrorist attacks, the inspectors general found. At the end of the first CIA-prepared threat assessment after 9/11, the chief of staff for CIA Director George Tenet added a paragraph saying the groups discussed in the memo "possessed the capability and intention to undertake further terrorist attacks within the United States," the report said.
Tenet's "Chief of Staff recalled that the [alarming] paragraph was provided to him initially by a senior White House official," the report said. "The paragraph included the [CIA director's] recommendation to the President that he authorize the NSA to conduct surveillance under the PSP."
Having the CIA present as grim a terrorism threat as possible producing what became known inside the government as the "scary memos" because they were made as scary as possible was institutionalized as the PSP continued through periodic reauthorizations by Bush, the report said.