A formerly-secret report on the NSA’s warrantless surveillance program was published last week. It’s a detailed look into the history of the Stellarwind program — one that makes it clear that US government officials repeatedly questioned its legality and efficacy.
Stellarwind was the code name for the President’s Surveillance Program, a wide-reaching information-gathering effort started by then-US president George W Bush after 9/11. The report was written by inspectors general from five different US government agencies in 2009, but kept classified (aside from a heavily truncated version) until this week, when it was released following a Freedom of Information Act request from the New York Times.
Though some parts remain redacted, the report provides damning evidence that the Stellarwind program had a soggy, flawed legal basis, that the intense secrecy surrounding the program made it less effective, and that it’s still hard to pinpoint if snooping on millions of Americans actually stopped any terrorist plots.
The report highlights, for instance, that US government officials knew that Justice Department lawyer John C Yoo’s memo on the legal basis of the program was flat-out wrong. Yoo justified the lack of warrants by citing the Foreign Intelligence Surveillance Act’s exception that warrants for national-security wiretaps are not required during wartime. The (big, fat, awful, and obvious) problem with Yoo’s justification: That exception is only for the first fifteen days of war.
Yoo’s replacement, Patrick Philbin, quickly realised that Stellarwind’s legal justification was crap, as did FBI General Counsel Valerie Caproni, Assistant Attorney General for the Office of Legal Counsel Jack Goldsmith, and Justice Department lawyer James A Baker.
Eventually, officials revised and narrowed the scope of Stellarwinds, but it’s remarkable that a program so obviously founded under dubious legal circumstances went on for almost a decade. You can read the entire report online, thanks to the New York Times.
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