Stuff That’s Missing From the Inspectors General Report on Warrantless Surveillance

Created: July 10, 2009 17:28 | Last updated: July 31, 2020 00:00

1. Any ballpark estimate — any number at all, really — of how many Americans had their communications intercepted by the NSA through the “President’s Surveillance Program.” The fact that this is missing from an inspectors general report is a glaring oversight.

The error rate in collecting terrorism communications. According to the inspectors general of the CIA, FBI and NSA, much if not most of the information collected by the program was unrelated to terrorism. The NSA inspector general found “no evidence of intentional misuse” of the surveillance efforts. Which is groovy. But it still doesn’t tell us how much irrelevant data the program collected, which is a crucial question when determining its efficacy.

How much so-called Fruit of the Poisoned Tree resulted. That’s a legal doctrine referring to evidence that has to be thrown out of court. Long story short: if an investigation or a technique to get information is inadmissible in court, no evidence yielded by such methods can be used either. Warrantless surveillance is most certainly a case that would generate inadmissible evidence. That’s one of the issues at stake in yesterday’s al-Haramain filing that I wrote about. And it’s huge. If information from warrantless surveillance made its way into indictments or prosecutions, then those cases are jeopardized. That’s the sort of thing that lets terrorists out on the streets.

Check this out, for instance: the Justice Department “was aware as early as 2002 that information collected under the PSP could have implications for DOJ’s litigation responsibilities under Rule of Criminal Procedure Rule 16 and Brady v. Maryland.” Rule 16 and Brady prevent prosecutors from withholding germane information from a defendant — like, you know, whether part or all of an investigation is based on an illegal search. But what happened? “[N]o 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.” That means that from 2001 to 2004, U.S. attorneys could have been given — from FBI or intelligence officials — information relevant to a terrorism prosecution that they would have no way of knowing came from a poisoned tree like the PSP, and could therefore never have disclosed that fact to defense counsel. And yet the report doesn’t tell us how often that happened.

Relatedly, this is dense but important:

Chapters Three and Six of the DOJ IG [inspector general] report describe how DOJ and the [Foreign Intelligence Surveillance Act (FISA) Court] addressed the impact PSP-derived information had on the FISA process. The DOJ IG concluded that it was foreseeable that [PSP-derived] 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 [FISA Court] into the PSP unnecessarily jeopardized DOJ’s relationship with the Court.

That’s hard to follow, but what it appears to mean is that OIPR, the office responsible for generating FISA warrants, had no idea if information it submitted as probable cause to the FISA Court for such a warrant came from PSP surveillance. OIPR whistleblower Thomas Tamm realized in 2004 that there were special procedures for *some *warrant submissions that seemed to come from a certain subset of NSA information; he had no idea what PSP was. We still don’t know how many warrants for the FISA Court effectively laundered dirty information into the criminal-justice process.

Update: Sorry, just two more.

Any assessment, at all, of the legality of the warrantless surveillance programs collectively called PSP. Just a total dodge on this one.

Relatedly: the words “exclusive means.” Like for instance, the inspectors general write: “Prior to September 11, 2001, the Foreign Intelligence Surveillance Act of 1978 and Executive Order 1233 were generally viewed as the principal governing authorities for conducting electronic surveillance for national security purposes.” Well, not exactly. What FISA actually says is this:

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