What Changes Were Made to the NSA Program?

Glenn Greenwald zeroes in on an important issue:

But the question still remains: what changes were made [to the NSA program] that convinced Comey and Ashcroft that the program was legal? . . .

The only real possibility for how the program could be "refashioned" in order to convince the DOJ of its legality would be tighten the nexus between the warrantless eavesdropping and the AUMF.

Since the AUMF authorized, in essence, the instruments of war to be used against Al Qaeda and other terrorist groups, that would mean that -- in order to make the program appear more legal in the eyes of these DOJ officials -- the warrantless eavesdropping would need, presumably, to be tied to terrorist groups encompassed by the AUMF. That's the only conceivable way that the program could have been "refashioned" in order to make it seem as though it had legal authority.

But if that's the case -- if it was only in 2004 that a requirement was created that the eavesdropping be tied closely to terrorists encompassed by the AUMF -- then that would mean that prior to that time, there was no nexus between the eavesdropping and those terrorist groups. It would mean that prior to this 2004 DOJ rebellion, the scope of the NSA eavesdropping -- the list of those who were subject to warrantless eavesdropping -- was far broader than the Islamic terrorist groups against whom the President was authorized by the AUMF to use military force.

That would necessarily mean that -- contrary to what the administration has repeatedly insisted was true -- it was not merely Al Qaeda and similar groups who were the targets of the eavesdropping conducted in secret, but targets beyond that category.

Glenn and I were emailing back and forth about this very issue last night, and I'm in total agreement. They must have insisted on a tighter nexus between the AUMF and the surveillance that was taking place. I suspect there were some other changes implemented as well, though.

In search of answers to this question, I went back and reread the article that started it all, James Risen and Eric Lichtblau's December 16, 2005 New York Times front page story. It's remarkable how much information is contained in that one story. Here's what Risen and Lichtblau had to say about the 2004 DOJ rebellion:

Several senior government officials say that when the special operation began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials. Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said. Before the 2004 election, the official said, some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president.

In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it.

For the first time, the Justice Department audited the N.S.A. program, several officials said. And to provide more guidance, the Justice Department and the agency expanded and refined a checklist to follow in deciding whether probable cause existed to start monitoring someone's communications, several officials said.

My guess is that, up until 2004, the NSA was conducting this program with very little in the way of guidelines or supervision. As Risen and Lichtblau put it:

The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said.

In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain.

I suspect that part of the problem (above and beyond the violation of FISA) was that there was no real guidance as to how far out to expand this "chain." As a result, a number of people were likely ensnared in this web who had nothing to do with al Qaeda and nothing even approaching reasonable grounds to be searched.

In other words, I suspect that Goldsmith and Comey not only had FISA-related concerns, but Fourth Amendment concerns as well. Those concerns were likely aggravated by the sloppy use of evidence obtained through these warrantless searches. As the article explains:

A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the Federal Intelligence Surveillance Court, helped spur the suspension, officials said. The judge questioned whether information obtained under the N.S.A. program was being improperly used as the basis for F.I.S.A. wiretap warrant requests from the Justice Department, according to senior government officials. While not knowing all the details of the exchange, several government lawyers said there appeared to be concerns that the Justice Department, by trying to shield the existence of the N.S.A. program, was in danger of misleading the court about the origins of the information cited to justify the warrants.

One official familiar with the episode said the judge insisted to Justice Department lawyers at one point that any material gathered under the special N.S.A. program not be used in seeking wiretap warrants from her court. Judge Kollar-Kotelly did not return calls for comment.

I'd bet that, as conditions for reauthorizing the program, Goldsmith and Comey demanded the following changes:

1) That a new OLC opinion be drafted (by Goldsmith) relying on the AUMF justification, not Article II.

2) That all future surveillance have a direct nexus to the conflict authorized by the AUMF, i.e., fighting al Qaeda.

3) That the NSA utilize some sort of "probable cause" standard for all surveillance, so as not to violate the Fourth Amendment.

4) That stricter internal controls and oversight be added to make abuse less likely.

5) That no evidence obtained via the NSA program be used in court or to apply for a FISA warrant.

For reasons I've explained previously, I don't think these changes were nearly sufficient to render the program legal, but they may well have resulted in a significant narrowing of the scope of the program.

Bonus quote from the article that started it all:

A senior government official recalled that he was taken aback when he first learned of the operation. "My first reaction was, 'We're doing what?' " he said. While he said he eventually felt that adequate safeguards were put in place, he added that questions about the program's legitimacy were understandable.

Comey? Goldsmith? Mueller?

Finally, if you haven't already read this post (and every other post by Marty Lederman on this subject), I highly recommend it.