The Letter
ODNI: The Department of Justice has released today in redacted form a previously classified 2002 letter from former Deputy Assistant Attorney General John Yoo of the DOJ Office of Legal Counsel addressed to former Foreign Intelligence Surveillance Court Presiding Judge, Colleen Kollar-Kotelly.
The letter was designed to address certain questions that Judge Kollar-Kotelly raised during her first briefing on May 17, 2002, concerning certain collection activities authorized by President George W. Bush shortly after the attacks of September 11, 2001, referred to as the President’s Surveillance Program. As described in the publicly released Inspectors General reports concerning the PSP dated July 10, 2009 (published April 25, 2015 and September 21, 2015), Judge Kollar-Kotelly was permitted to read the letter, but was not authorized to retain a copy or take notes. The 2002 letter purports to generally outline the scope of the President’s legal authority to conduct possible electronic surveillance techniques after the attacks of September 11, 2001. Beginning in 2004, the Department of Justice thoroughly reexamined the factual underpinnings and legal analysis for the PSP culminating in a legal opinion issued by the Office of Legal Counsel on May 6, 2004. (That opinion is also publicly available in redacted form)
Additional Background
As previously released in the IC on the Record posting of December 21, 2013, President Bush authorized the NSA, via a series of classified authorizations beginning in October 2001, to collect three “baskets” of information, including: (1) the contents of certain international communications (which was later referred to as the Terrorist Surveillance Program); and the bulk collection of non-content (2) telephony and (3) Internet metadata, subject to various conditions. NSA’s content interception activities under the TSP were limited to the acquisition of specific international communication (i.e., to or from the United States) involving persons reasonably believed to be associated with al Qaeda and affiliated terrorist organizations. Over time, these presidentially-authorized activities were transitioned to the authority of the Foreign Intelligence Surveillance Act. The collection of communications pursuant to the TSP ended in 2007, and the Government transitioned this collection to be undertaken pursuant to FISA authority and orders of the Foreign Intelligence Surveillance Court. Later, in August 2007, Congress enacted the Protect America Act as temporary authority to provide for the acquisition of certain communication content. The PAA, which expired in February 2008, was replaced by the FISA Amendments Act of 2008, which was enacted in July 2008 and remains in effect.
Today, content collection targeting non-U.S. persons reasonably believed to be located overseas for foreign intelligence purposes is conducted pursuant to section 702 of FISA. No U.S. person or person located in the United States may be intentionally targeted pursuant to section 702. The bulk collection of Internet metadata under the PSP was transitioned to the authority of the FISA in July 2004 (and ceased in December 2011, when the U.S. Government decided to not seek reauthorization from the FISC).The bulk collection of telephony metadata under the PSP was transitioned to the authority of the FISA in May 2006. In November 2015, the USA FREEDOM Act ended the NSA’s collection of telephone metadata in bulk, and provided a new mechanism for the Government to obtain the targeted production of call detail records relating to authorized investigations to protect against international terrorism through applications to the FISC.
The transition of PSP activities to authority of the FISA is described in greater and more specific detail in documents previously disclosed in IC on the Record.
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As noted by the Bush White House Archives:
Fact Sheet: President Bush Has Kept America Safe
President Bush Fundamentally Reshaped Our Strategy To Protect The American People
“Because of … the efforts of many across all levels of government, we have not suffered another attack on our soil since September the 11th, 2001.”
President George W. Bush (March 8, 2008)
On December 17, President Bush visited the Army War College in Carlisle, Pennsylvania, and discussed efforts to protect the security and liberty of the American people. Following the attacks of September 11, 2001, President Bush took the fight to the enemy to defeat the terrorists and protect America. The President deployed all elements of national power to combat terrorism, which had previously been considered primarily a “law enforcement” issue. He transformed our military and strengthened our national security institutions to wage the War on Terror and secure our homeland. The President also made missile defense operational and advanced counterproliferation efforts to help prevent our enemies from threatening us, and our allies, with weapons of mass destruction.
Secured the Homeland
- Protected our Nation and prevented another attack on U.S. soil for more than seven years, modernized our national security institutions and tools of war, and bolstered our homeland security. Under the President’s watch, numerous terrorist attacks have been prevented in the United States. These include:
- An attempt to bomb fuel tanks at JFK airport;
- A plot to blow up airliners bound for the East Coast;
- A plan to destroy the tallest skyscraper in Los Angeles;
- A plot by six al Qaeda inspired individuals to kill soldiers at Fort Dix Army Base in New Jersey;
- A plan to attack a Chicago-area shopping mall using grenades; and
- A plot to attack the Sears Tower in Chicago.
- Arrested and convicted more than two dozen terrorists and their supporters in America since 9/11.
- Froze the financial assets in the United States of hundreds of individuals and entities linked to terrorism and proliferation.
- Doubled the Border Patrol to more than 18,000 agents, equipped the Border Patrol with better technology and new infrastructure, and effectively ended the process of catch and release at the border. Increased border security and immigration enforcement funding by more than 160 percent and constructed hundreds of miles of fencing and vehicle barriers.
- Instituted a process to screen every commercial air passenger in the country, launched credentialing initiatives to better identify passengers, and expanded the Federal Air Marshal Program. Replaced the multiple watchlists that were in place prior to 9/11 with a single, consolidated watchlist, and incorporated biometrics in screening and identifying individuals entering our country. Created US-VISIT to screen foreign travelers and prevent terrorists from entering America. Required secure identification at our ports of entry to better monitor individuals entering the United States.
- Invested more than $38 billion in public health and medical systems, created a biothreat air monitoring system, and developed a national strategy and international partnership on avian and pandemic flu.
‘History – assuming it is written by free men and women not intimidated into silence by the fear of attracting the terrorists’ notice – will be exceedingly kind to this president.’
The Atlanta Journal-Constitution (Sept. 16, 2007)
Waged the Global War on Terror
- Removed the Taliban from power and brought freedom to the 25 million people of Afghanistan.
- Freed 25 million Iraqis from the rule of Saddam Hussein, a dictator who murdered his own people, invaded his neighbors, and repeatedly defied United Nations resolutions.
- Captured or killed hundreds of al Qaeda leaders and operatives in more than two dozen countries with the help of partner nations. September 11 mastermind Khalid Sheikh Mohammed is in U.S. custody and Abu Musab al-Zarqawi, the former leader of al-Qaeda in Iraq, was killed in 2006. Removed al Qaeda’s safe-haven in Afghanistan and crippled al Qaeda in Iraq, including defeating al Qaeda in its former stronghold of Anbar Province.
Transformed Our Approach to Combating Terrorism After the 9/11 Attacks
- Increased the size of our ground forces and number of unmanned aerial vehicles and strengthened special operations forces by increasing resources, manpower, and capabilities. Increased the Defense Department’s base budget more than 70 percent since 2001, including increased funding for military pay and benefits, research, and development. Started moving American forces from Cold War garrisons in Europe and Asia so they can deploy more quickly to any region of the world. Modernized and transformed the National Guard from a strategic reserve to an operational reserve.
- Forged a new, comprehensive cybersecurity policy to improve the security of Federal government and military computer systems and made protecting these systems a national priority.
- Improved cargo screening and security at U.S. ports and increased containerized cargo screening overseas.
- Established a more unified, collaborative intelligence community under the leadership of a Director of National Intelligence to ensure information is shared among intelligence and law enforcement professionals so they have the information they need to protect the American people while respecting the legal rights of all U.S. persons, including freedoms, civil liberties, and privacy rights guaranteed by Federal law.
- Consolidated 22 agencies and 180,000 employees under a new agency, the Department of Homeland Security, to foster a comprehensive, coordinated approach to protecting our country.
- Advocated for and signed into law the USA PATRIOT Act, the Intelligence Reform and Terrorism Prevention Act, and a modernization of the Foreign Intelligence Surveillance Act.
- Shifted the FBI’s focus from investigating terrorist attacks to preventing them. Created the National Security Branch at the FBI, which combines the FBI’s counterterrorism, counterintelligence, intelligence, and weapons of mass destruction (WMD) elements under the leadership of a senior FBI official.
- Created the Terrorist Screening Center and the National Security Division at the Department of Justice.
Invigorated International Alliances And Partnerships To Make America Safer And More Secure
- Partnered with nations in Europe, the Middle East, Asia, Africa, and the Western Hemisphere on intelligence sharing and law enforcement coordination to break up terrorist networks and bring terrorists to justice.
- Transformed NATO to face 21st century threats, including strengthening the Alliance’s capabilities against WMD and cyber attacks, while leading the international military effort in Afghanistan.
- Established the Proliferation Security Initiative (PSI) and other multilateral coalitions to stop WMD proliferation and strengthen our ability to locate and secure nuclear and radiological materials around the world. Dismantled and prevented the reconstitution of the A.Q. Khan proliferation network, an extensive, international network that had spread sensitive nuclear technology and capability to Iran, Libya, and North Korea.
- Worked with European partners to limit Iran’s ability to develop weapons of mass destruction and ballistic missiles and finance terrorism, and initiated targeted sanctions against Iran’s Quds Force. Gathered support for and won passage of three Chapter VII United Nations Security Council resolutions that impose sanctions on Iran and require it to suspend its uranium enrichment and other proliferation-sensitive nuclear activities.
- Established the Six Party Talks framework in partnership with China, South Korea, Japan, and Russia. Obtained a commitment from North Korea to abandon all nuclear weapons and existing nuclear programs. Since November 2007, USG experts have supervised North Korea’s activities to disable its plutonium production capability.
- Persuaded Libya to disclose and dismantle all aspects of its WMD and advanced missile programs, renounce terrorism, and accept responsibility for prior acts of terror. Normalized our relations with Libya as a result.
- Signed agreements for missile defense sites in the Czech Republic and Poland to help protect America and its allies from the threat of WMD delivered by ballistic missiles. Obtained NATO endorsement of plans to deploy missile defense assets in Europe.
