In September 2001, the Bush Office of Legal Counsel wrote up one of its memos. The memo said that U.S. military spying in America was OK.

Electronic spying is a military operation. Conduct of military operations inside the United States, against Americans, in the way the spying was done, had never been OK before. So the Bush administration locked up the memo saying it was OK, in a safe.

In October 2001, the NSA began "the Program" of electronically spying on Americans. But the NSA never actually saw the memo, explaining why it was OK for them to do so.

The NSA did not have access to the early DoJ Office of Legal Counsel (OLC) opinions supporting the Attorney General's statement that PSP was legal. General Hayden, NSA lawyers, and the NSA Inspector General agreed that it was not necessary for them to see the early opinions in order to execute the terms of the Authorization, but felt it would be helpful to do so.

Draft NSA Inspector General's Report

The NSA didn't need no memo to do the spying. And, to be fair, since it was a Bush OLC opinion, the memo probably stunk. That's why the administration locked it away in a safe.

The NSA asked to see the memo, twice. The NSA's lawyer once asked Dick Cheney's lawyer if he could see it. Dick Cheney's lawyer refused.

And once the NSA's Inspector General and the NSA lawyer's deputy asked to see the memo at a meeting. Dick Cheney's lawyer knew about the meeting, and surprised everyone by showing up, to say no. He hadn't been invited.

Dick Cheney's lawyer might have known about the meeting, because Dick Cheney had once managed to get all the emails sent to him. Which emails, if you'll remember, he later managed to also get lost. He was done reading them, I guess.

We've seen some pretty stinking torture memos from the Bush OLC. The main torture memo included. But we haven't seen as many NSA spying memos. They are still locked up in the safe. The main spying memo included.

Why were many torture memos released, but many spying memos not? They aren't done reading the spy memos, I guess. They still use them.

Though they aren't done using all the torture memos either, it turns out. On the second day of office, Barack Obama had famously said that the torture memos could not be relied on anymore. But, and this is from Valtin recently

The Bush-era Torture Memo Obama Never Rescinded

That was a surprise. It's a surprise like Dick Cheney's lawyer showing up at your meeting uninvited.

After the famous Ashcroft hospital room showdown, some portions of the spying program were stopped. And the NSA had a problem with this. They really wanted that metadata.

So the NSA and the DoJ devised a novel legal theory to allow it. It took some work and some time for them devise it. But after they came up with the idea, the Chief FISC judge went along.

After extensive coordination, DoJ and NSA devised the theory to which the Chief Judge of the FISC seemed amenable.... NSA representatives explained the capabilities that were needed to recreate the Authority, and devised a workable legal basis to meet those needs.
The legal theory they devised was to use Smith v. Maryland, and call the bulk collection a Pen Register. You've heard this devised legal theory repeated recently, perhaps.

The NSA Inspector General's choice in language makes it about as clear as Inspector Generals can get away with. The memo with the Smith v. Maryland device pretty well stinks. But, NSA does what NSA wants to do, stinking memos or not.

In the very earliest days after 9/11, NSA Director Michael Hayden did the spying all on his own. Even Dick Cheney, in the IG report telling of the story, found out about Hayden's spying indirectly.

The spying was started as an extraordinary emergency measure. Illegal as all hell, but in those early days, who was going to object? And who was going to know?

Hayden himself was surprised, small 's' style he says, that the temporary extraordinary emergency measures just kept rolling on without stop.

Twelve years later, and the military still conducts war operations within the United States. The memos are still held in the safe.

The original Authorization and renewals were kept in the NSA Director’s safe, and access to the documents was tightly controlled.
And stinking memos or not, in all this time, has never made much of a difference.
Your Email has been sent.