This page can be viewed at http://www.historycommons.org/entity.jsp?entity=office_of_intelligence_policy_and_review_1
The FBI obtains a wiretap warrant to seize al-Qaeda-related e-mails under the Foreign Intelligence Surveillance Act (FISA), but experimental software malfunctions and an angry FBI agent is said to destroy all the e-mails collected. The Carnivore software, which was installed in Denver, collects e-mails not only from the target, but also from other people. The FBI technician is reportedly so upset when he discovers e-mails from people whose communications the FBI has no authorization to collect that he apparently deletes everything the FBI has gathered, including the e-mails from the target. However, the article that first reports this deletion also says the opposite: “A Justice Department official, speaking on condition of anonymity, said Tuesday night that the e-mails were not destroyed.” In either case, the Office of Intelligence Policy and Review (OIPR) at FBI headquarters, which deals with FISA warrants, is then informed and expresses its surprise it was not told the software was experimental before the warrant was issued. An FBI official will comment: “To state that [an OIPR official] is unhappy with [the FBI’s International Terrorism Operations Section] and the [Usama bin Laden] Unit would be an understatement of incredible proportions.” As the target’s e-mails have been destroyed in the FBI system, the FBI then wants a physical search warrant under FISA to go and collect the e-mails from the carrier. However, the OIPR insists on an explanation for the error before this can happen, and also demands an explanation for the problem, so the special FISA court can be notified. (Federal Bureau of Investigation 4/5/2000; Hopper 5/28/2002) It is not known who was being monitored, though there are potential al-Qaeda Denver connections: in 1994, a bin Laden front began routing communications through Denver (see 1994), and a passport was stolen there in 1995 from a man who was later confused with one of the 9/11 hijackers (see 1995).
The Justice Department’s Office of Intelligence Policy and Review (OIPR), which helps obtain warrants under the Foreign Intelligence Surveillance Act (FISA), discovers errors in several al-Qaeda related FISA applications under a counterterrorist program called “Catcher’s Mitt.” The OIPR verbally notifies the FISA Court of the errors, which are mostly in affidavits submitted by supervisory special agents at field offices. Then, in September and October 2000, the OIPR submits two pleadings to the court regarding approximately 75-100 applications with errors starting in July 1997. Many of the errors concern misleading statements about the nature of collaboration between criminal and intelligence agents. Most of these applications stated that the FBI New York field office, where the I-49 squad focusing on al-Qaeda was based (see January 1996 and Late 1998-Early 2002), had separate teams of agents handling criminal and intelligence investigations. But in actual fact the I-49 agents intermingled with criminal agents working on intelligence cases and intelligence agents working on criminal cases. Therefore, contrary to what the FISA Court has been told, agents working on a criminal investigation have had unrestricted access to information from a parallel intelligence investigation—a violation of the so-called “wall,” the set of bureaucratic procedures designed to separate criminal and intelligence investigations (see July 19, 1995). (Hirsh and Isikoff 5/27/2002; Isikoff and Thomas 3/29/2004; US Department of Justice 11/2004, pp. 36-37 ) The information about al-Qaeda in these cases is also shared with assistant US attorneys without FISA permission being sought or granted first. Other errors include the FBI director wrongly asserting that the target of a FISA application was not under criminal investigation, omissions of material facts about a prior relationship between the FBI and a target, and an interview of a target by an assistant US attorney. (Foreign Intelligence Surveillance Court 5/17/2002) This leads the FISA Court to impose new requirements regarding the “wall” (see October 2000). Similar problems will be found in FISA applications for surveillance of Hamas operatives (see March 2001).
A key Justice Department unit, the Office of Intelligence and Policy Review (OIPR), is not consulted about a request to search Zacarias Moussaoui’s belongings. Although it is this office that would submit an application for a search warrant under the Foreign Intelligence Surveillance Act, the legal aspects of the application are discussed only with the National Security Law Unit, which is beneath the OIPR (see August 22-28, 2001). FBI officials discuss what they think the OIPR will want in a warrant application, but do not ask it directly. Sherry Sabol, an attorney in the lower National Security Law Unit, will later say that she would have contacted the OIPR to discuss a possible warrant application, if FBI headquarters agents had not withheld information from her (see August 22-28, 2001). When shown the relevant documentation for the Moussaoui case after 9/11, the OIPR’s general counsel will say he would have considered the application and, if submitted, he “would have tied bells and whistles” to a comment by Moussaoui’s imam that Moussaoui and an associate wanted to “go on jihad” (see August 17, 2001). (US Department of Justice 11/2004, pp. 132-166, 182-4, 201 ) However, a memo from Attorney General John Ashcroft issued in May to improve the efficiency of the FISA process recommended communications between field offices, FBI headquarters, and the OIPR. In addition, the OIPR and the FBI should hold regular monthly meetings to discuss FISA warrants. It is unclear if such a meeting is held in the three weeks between Moussaoui’s arrest and 9/11. However, one of the people supposed to attend such meetings is Spike Bowman, chief of the National Security Law Unit, who is involved in the Moussaoui case (see August 28, 2001). (US Department of Justice 5/18/2001 )
James Baker, counsel for intelligence policy in the Justice Department’s Office of Intelligence Policy and Review (no relation to the former Secretary of State James A. Baker), informs the Foreign Intelligence Surveillance Court (FISC) that the government has, at least twice, improperly used excluded evidence from NSA domestic wiretaps to obtain warrants from FISC. Colleen Kollar-Kotelly, the senior FISC judge, is angered by this as both she and her predecessor, Royce Lambeth, have insisted that no evidence obtained from warrantless wiretaps can be used to obtain warrants for further surveillance from FISC. The Justice Department assured them that the administration would never attempt to secure warrants in such a manner. By using the excluded information, the Justice Department rendered useless the federal screening system put in place to keep such evidence from reaching FISC, which did not want to receive it due to the questionable legality of the domestic surveillance program (see December 15, 2005). Kollar-Kotelly’s complaint about the use of tainted evidence results in a brief suspension of the NSA wiretapping program. But the practice will continue (see 2005). (Leonnig 2/9/2006)
Thomas Tamm, a veteran Justice Department prosecutor with a high-level security clearance, is finishing up a yearlong post with the Office of Intelligence Policy and Review (OIPR), a Justice Department unit handling wiretaps of suspected terrorists and spies. As his stint is coming to a close, Tamm learns of the existence of a highly classified National Security Agency (NSA) program that is electronically eavesdropping on American citizens—domestic wiretapping. He later learns that “the program,” as it is referred to by those few who know of it at all, is called “Stellar Wind.”
Concealment from FISA Judges - Tamm learns that the NSA program is being hidden from the Foreign Intelligence Surveillance Act (FISA) Court, a panel of federal judges who by law must approve and supervise such surveillance for intelligence purposes. OIPR lawyers ask the FISA Court for permission to implement national-security wiretaps. But, Tamm learns, some wiretaps—signed only by Attorney General John Ashcroft—are going to the chief FISA Court judge and not the other ten judges on the FISA panel. The “AG-only” requests are extraordinarily secretive, and involve information gleaned from what is only referred to as “the program”—Stellar Wind. Only a very few White House and US intelligence officials know the name and the nature of “the program.” Stellar Wind involves domestic wiretaps on telephones and computer e-mail accounts derived from, but not necessarily linked to, information secured from captured al-Qaeda computers and cell phones overseas. With the voluntary cooperation of American telecommunications companies (see 1997-August 2007 and After, February 2001, February 2001, and February 2001 and Beyond), the NSA program also collects vast amounts of personal data about US citizens’ phone and e-mail communications. The program also collects an enormous amount of financial information from the Treasury Department (see February 28, 2006), all collected as part of the NSA’s “data mining” efforts (see Late 1999 and After September 11, 2001).
Program Is 'Probably Illegal,' Says DOJ Official - Tamm, suspicious about the unusual requests, asks his supervisors about the program, and is told to drop the subject. “[N]o one wanted to talk about it,” he will recall. Tamm asks one of his supervisors, Lisa Farabee, “Do you know what the program is?” Farabee replies: “Don’t even go there.… I assume what they are doing is illegal.” Tamm is horrified. His first thought, he will later recall, is, “I’m a law enforcement officer and I’m participating in something that is illegal?” Tamm soon finds out from deputy OIPR counsel Mark Bradley that the chief FISA judge, Colleen Kollar-Kotelly, is raising unwanted questions about the warrant requests (see 2004 and 2005), and “the AG-only cases are being shut down.” Bradley adds, “This may be [a time] the attorney general gets indicted.”
Request for Guidance Turned Down - For weeks, Tamm agonizes over what to do. He seeks guidance from a former colleague, Sandra Wilkinson, who now works on the Senate Judiciary Committee. The two have coffee in the Senate cafeteria, and Tamm asks Wilkinson to ask if anyone on the committee knows anything about “the program.” Weeks go by without a response, and Tamm sends Wilkinson an e-mail from his OIPR computer—an e-mail that will later alert the FBI to Tamm’s interest in Stellar Wind. During a second conversation, Wilkinson refuses to give Tamm any information. “Well, you know, then,” he replies, “I think my only option is to go to the press.”
Contacting the New York Times - Tamm finally decides to contact the New York Times’s Eric Lichtblau, who has written several stories on the Justice Department that impressed Tamm. By this point he has transferred out of OIPR and back into a Justice Department office that would allow him to return to the courtroom. Tamm calls Lichtblau from a pay phone near the US District Courthouse in Washington. “My whole body was shaking,” he will recall. He identifies himself only as “Mark” (his middle name), and arranges to meet Lichtblau at a bookstore near the Justice Department. (In his 2008 book Bush’s Law: The Remaking of American Justice, Lichtblau describes Tamm as “a walk-in” source who was “agitated about something going on in the intelligence community.” Lichtblau will describe Tamm as wary and “maddeningly vague,” but as they continue to meet—usually in bookstores and coffee shops in the Capitol District—Tamm’s “credibility and his bona fides became clear and his angst appears sincere. Eighteen months later, after finally overriding a request and warning from President Bush not to print the story (see December 6, 2005), the Times reports on the existence of the NSA program (see December 15, 2005). (Sanchez 12/16/2008; Isikoff 12/22/2008)
FBI agents raid the home of former Justice Department prosecutor Thomas Tamm, who is suspected of leaking information to the New York Times regarding the Bush administration’s warrantless wiretapping program (see Spring 2004 and December 15, 2005). Tamm previously worked in the Justice Department’s Office of Intelligence Policy and Review (OIPR), which oversees surveillance of terrorist and espionage suspects. The FBI agents seize Tamm’s computer as well as those of his three children and a store of personal files. They also take some of his books (including one on famed Watergate whistleblower “Deep Throat” (see May 31, 2005), and even the family’s Christmas card list. Tamm is not home when the raid is staged, so the agents sit his wife and children around the kitchen table and grill them about Tamm’s activities. His oldest son, Terry, will later recall: “They asked me questions like ‘Are there any secret rooms or compartments in the house’? Or did we have a safe? They asked us if any New York Times reporters had been to the house. We had no idea why any of this was happening.” The raid is part of a leak probe ordered by President Bush (see December 30, 2005). James X. Dempsey of the Center for Democracy and Technology calls the decision to stage the raid “amazing,” and says it shows the administration’s misplaced priorities: using FBI agents to track down leakers instead of processing intel warrants to close the gaps. (Newsweek 8/2007; Isikoff 12/22/2008) In late 2008, Tamm will reveal to Newsweek that he is one source for the Times articles (see December 22, 2008). At the time of the raid, his family has no idea that he knows anything about the wiretapping program, or that he has spoken to reporters. (Isikoff 12/22/2008)
Except where otherwise noted, the textual content of each timeline is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike