On March 24, 2009, the National Security Agency’s inspector general issued a 51-page draft report on the President’s Surveillance Program, the warrantless authority under which NSA had collected phone records and email since 2001. This year, the report, classified as top secret, was leaked to the Guardian by NSA defector Ed Snowden. On Thursday, the Guardian published it.
The Guardian’s correspondents, Glenn Greenwald and Spencer Ackerman, see the report as further evidence of runaway government surveillance. They note that the program extended data collection to U.S. persons, that its use of email metadata went beyond billing records, and that surveillance continued after President Bush left office. “NSA collected US email records in bulk for more than two years under Obama,” says the Guardian’s headline.
But in many ways, the story told in the report is really about the mellowing of the surveillance state. An ill-defined, unilaterally imposed, poorly supervised spying operation was gradually brought under control. The surveillance program didn’t just become domestic. It became domesticated.
In its early days, the program ran wild. It was authorized solely by the White House. According to the report, “The Vice President’s Counsel drafted the Authorizations and personally delivered them to NSA.” Crucial conversations about the program’s formation and organization were undocumented. Nobody from the Department of Justice was in the loop. Nobody from the Foreign Intelligence Surveillance Court was told until January 2002, and no court personnel other than the chief judge and a single law clerk was informed until four years later. At the outset, only four members of Congress were briefed. The NSA’s own inspector general didn’t find out about the program until August 2002, because, as the agency’s counsel explained, “the President would not allow the IG to be briefed sooner.”
Why was this project unchecked? Some of the blame lies with Dick Cheney’s authoritarian protector complex and his obsessive secrecy. But much of the chaos, the report suggests, arose from the panicked intensity of the 9/11 aftermath. Another attack was feared at any moment. Expanded surveillance, in hopes of stopping it, was assumed to be short-term. Everyone was worried about security, not privacy. Within days after 9/11, major communications companies, on their own initiative, began contacting NSA to offer help. The program’s first authorization, signed by Bush on Oct. 4, 2001, specified that the surveillance would be permitted “during a limited period.” At that time, nobody expected it to be continuously reauthorized. According to then-NSA director Michael Hayden, that’s one reason why, for nearly a year, the NSA’s inspector general wasn’t told about the program: It wasn’t really perceived as a program.
Over time, the surveillance expanded in some ways. It was used against the Iraq Intelligence Service in 2003 and was later extended, through “contact chaining,” to some Americans. But the larger trend was restraint. First came internal worries. Hayden accepted the program’s legality but didn’t like its hyper-secrecy. He pressed the White House to inform Congress and the FISC. According to the report, “By August 2002, General Hayden and the NSA General Counsel wanted to institutionalize oversight of the Program by bringing in the IG.” Surveillance of Iraqi intelligence officials, initiated in 2003, was halted after the collapse of Saddam Hussein’s regime.