NSA Says: "Can't Touch This!"

Why Did The NSA Classify 'Public' Report On Wiretaps?

Oct 23, 2008
Courtesy Of NewsWeek

When Congress passed a landmark electronic-spying bill last summer, the measure included a key provision that ordered the inspectors general of U.S. intelligence agencies to produce the first-ever public report on President Bush's warrantless-surveillance program.

The report isn't due until next July—long after Bush leaves office. But when the inspectors general recently submitted their first "interim" report to Congress under the measure, it wasn't made public. Instead, the brief document, written by CIA inspector general John Helgerson, was marked classified—a move that has drawn a stiff protest from House Intelligence Committee Chairman Silvestre Reyes.

In an Oct. 10 letter, Reyes complained to Helgerson (who is coordinating the review by 16 different inspectors general) for submitting a secret interim report when Congress envisioned a document that could be shared with the public. The letter essentially said, "Here's what the law says, please explain why you're not following the law," Courtney Littig, a spokeswoman for the House Intelligence Committee, tells NEWSWEEK.

Reyes's letter also included a request that the inspectors general issue a "preservation order" preventing White House or intelligence community officials from removing or destroying documents relating to the warrantless-surveillance program. With barely three months left in the administration, Reyes wanted to make sure that "they don't destroy anything before they walk out the door," Littig says.

The dispute might not seem entirely unexpected. A veil of super secrecy has surrounded the program since President Bush, in the weeks after 9/11, directed the National Security Agency (NSA) to conduct surveillance of phone calls and e-mails of terror suspects inside the United States without judicial warrants. The little-noticed provision for a public inspectors-general report was crucial to gaining the support of some liberal Democrats—including Sen. Barack Obama—for last summer's bill, which allowed a modified version of the program to continue.

At the time, Obama was attacked by liberal bloggers for reversing his position on one of the most controversial provisions in the bill: a section, strongly backed by the White House, that granted blanket immunity to telecommunications companies facing lawsuits for participating in what critics charged was an illegal program. But Obama pointed to the mandate for a public report as a reason he was finally prepared to back the measure—even though it would squash lawsuits that could have led to a public airing of the extent of warrantless spying conduct by the administration. "The Inspectors General report provides a real mechanism for accountability and should not be discounted," Obama wrote in a statement posted on his Web site on July 3. "It will allow a close look at past misconduct without hurdles that would exist in federal court because of classification issues."

Asked for comment, Michael Ortiz, a spokesman for Obama, said: "Senator Obama continues to believe that the public deserves to know that there is accountability and oversight of the surveillance program and urges that a nonclassified report from the IG be made available to Congress." But a U.S. intelligence community official, who asked not to be identified, talking about sensitive matters, insisted there was no intent on the part of Helgerson or the other inspectors general to ignore the congressional requirement for a public report on the surveillance program. The official said the National Security Agency—which conducted the warrantless surveillance—was still reviewing the material in the interim report in an effort to see what can be declassified. "This is simply the first step. The review is not over by any means," the official said.
Sources familiar with the interim report said there is nothing all that sensitive about it. The document merely outlines the "scope" of the review that the inspectors general plan to conduct in preparation for the final report due next July.

As for the demands for a preservation order, the official said: "Directives have been issued to preserve records relating to this surveillance program. But, as Congress is aware, intelligence community inspectors general have clearly defined authorities. Those authorities don't, as a rule, extend to giving orders to the White House."

Littig says the intelligence committee has no evidence that documents about the surveillance program were being destroyed. But, she adds that given the tangled history of the program—and the limited disclosure provided to Congress over the years—"we've learned to be very specific."

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