Reign of Terror

by Spencer Ackerman

  But which Muslims did they think were culpable? Were Israel’s Palestinian and Lebanese enemies now America’s, as Israel quickly contended? What about Iran, for twenty years an American adversary—and a sponsor of terrorist attacks, no less—but whose Islamist ideology was vastly different from al-Qaeda’s? Bush only complicated matters. A deeply religious Christian, he initially insisted that the enemy was not Islam, adding that women like Lina Elayyan’s hijabi mother “must not be intimidated in America.” He undermined that message days later by calling the emerging conflict “a crusade,” invoking a totemic religious war. Bush was criticized for it and didn’t repeat it—it played into bin Laden’s “Crusader–Zionist alliance” propaganda—though many on the religious right viewed it as a forbidden truth. The result was a vague definition of an enemy that consisted of thousands of Muslims, perhaps millions, but not all Muslims—though definitely, exclusively, Muslims.

  From that deliberate imprecision came the name of the coalescing enterprise: the Global War on Terror(ism). The name reflected a social compromise. It elided implicating Islam and declared itself formally ecumenical, as if what it considered at issue was a form of asymmetrical political violence. Such a euphemism could simultaneously offend nativists (as a craven, dangerous unwillingness to blame Islam) and leftists (as a capitalist empire concealing its violence and plunder). Distrusting the name “War on Terror” would easily translate to distrusting those who wielded it. Elites simply adopted the term and set aside whatever discomfort they had with its vulgar patriotism. Yet whatever Bush claimed about America not being at war with Islam, the War on Terror’s enemies would exclusively be Muslim. Any visitor to Grandpa Millar’s Elohim City, or any other white-terror sanctuary across America, seeking to take up McVeigh’s banner could sleep easy. Years later, after the consequences became clear, a knowledgeable FBI retiree described white supremacist terror becoming “the lowest priority” for bureau counterterrorism.

  Having abandoned the concept of a war against a specific terrorist organization, Americans would never be able to agree on when it could be won. If there was a moment the war was conceptually doomed, it was this. Opposing factions within American politics, as well as within the Security State, would never be willing to accept a rival’s definition. That would prevent the war from coming to an agreed-upon end. It would place an enormous burden on the military, especially, yet there is no record of any general or admiral significantly dissenting from this conceptual definition of the war.

  There were fateful implications for law enforcement as well. The Justice Department, the FBI, and the immigration services established patterns that would last for the next two decades. They treated Muslim communities within a framework of guilt by association, on the supposition that someone must know something about the next attack. They came to treat immigration not as a process for becoming American but as a vehicle for terrorism. The fact that the hijackers had entered the country legally became a scandal, regardless of what implications that would have for an open society waging what Bush was describing as a war for the survival of freedom. Those implications—that an open society was a threatened society—suited many, such as Attorney General John Ashcroft and his immigration adviser Kris Kobach. “Our enemy’s platoons infiltrate our borders, quietly blending in with visiting tourists, students and workers,” Ashcroft pronounced the following spring when he unveiled what was functionally a foreign-Muslim database called NSEERS, a registry of noncitizen entrants from twenty-four substantially Muslim countries and, for window dressing, North Korea. The database would eventually contain information on eighty-four thousand people, resulting in deportation proceedings for fourteen thousand Arabs and Muslims who had voluntarily registered.

  Commentary during the first months of the war tended to treat federal law enforcement as an alternative to the military, rather than a domestic supplement, and a “law enforcement paradigm” as the folly that led to the attack. But there was nothing soft about what the Justice Department and the FBI did to Muslim and immigrant communities across the United States. In the eleven months after 9/11, what became known as the FBI’s PENTTBOM investigation held 762 people on immigration charges, ostensibly to keep them in the country on suspicion of connection to the attacks. The average length of time it took the FBI to clear them was eighty days. At the federal Metropolitan Detention Center in Brooklyn’s Sunset Park, 184 people were held in the most restrictive conditions available. That included cells equipped with what a Justice Department investigation called a “four-man-hold restraint policy, hand-held cameras recording detainee movements, cameras in each cell to monitor detainees, and physical security enhancements.” A measure called the material-witness statute was originally created to stop, in extraordinary circumstances, criminal witnesses from fleeing the country. During the weeks after 9/11, the Justice Department used it as one of several roundup tools. It remains unknown, nearly twenty years later, exactly how many people were subject to the roundups; one estimate pegs the number at ten thousand. A San Antonio radiologist from Saudi Arabia, al-Badr al-Hazmi, emerged from thirteen days in material-witness detention to ask a reporter, “Who is this Kafka that people keep mentioning?”

  Immigration was the responsibility of the Justice Department at the time. Among migrant communities, the Immigration and Naturalization Service was infamous even before 9/11. But after 9/11 the roundups were too much for its director, James Ziglar, who rebuked Ashcroft’s chief of staff: “I know you’re not a lawyer, but we do have this thing called the Constitution.” He lost that battle. Soon immigration would formally leave the Justice Department’s jurisdiction to become a bureaucratic subcategory of something called homeland security.

  The result was the erosion, for specific and vulnerable minorities, of the constitutional right of association. For American Muslims, citizens as much as noncitizens, the thinnest of suspicions endangered entire communities. Northern Virginia’s prosperous Muslims, proximate to the FBI’s powerful Washington field office, garnered suspicion after it was discovered that two hijackers visited the Dar al-Hijrah mosque in Falls Church. Its thirty-year-old preacher condemned 9/11 as “heinous” and conceded that “every nation on the face of the earth has a right to defend itself” even as he condemned the emerging Afghanistan war. The imam did have a permissive attitude toward jihad, including against Russia in Chechnya, but not against America: “We came here to build, not destroy,” he explained. But after the FBI launched Operation Green Quest, an aggressive raiding campaign in March 2002 against Muslim charities and businesses, the imam, Anwar al-Awlaki, warned that Islam was in danger of being outlawed. The journalist Jeremy Scahill later discovered evidence that the FBI had attempted to blackmail Awlaki into turning informant. The cleric opted instead to flee to Yemen, where he was part of an influential extended family, and began preaching that an American Muslim identity was untenable: “This is not now a war on terrorism . . . it is a war against Muslims and Islam.”

  Congress granted the FBI sweeping authorities less than two months after the attacks. It expanded the penalties on material support for terrorism charges, which had been pioneered in the 1990s, and expanded the criminalization of charitable and nonprofit organizations. The chairman of the House Financial Services Committee called it “the most far-reaching anti–money laundering legislation in two decades.” To uncover the hidden connections to jihadist organizations—in practice, usually connections to banned charities rather than terror groups, a distinction that had been collapsing after Oklahoma City—it vastly expanded the FBI’s warrantless access to so-called “business records”: financial, telecommunications, and other highly revealing documents about an individual created and held by a service provider. Another ominous provision aided the immigrant roundups by allowing the FBI to detain noncitizens for a week without charge; nondeportable noncitizens, such as stateless people, could be held indefinitely. Yet another blurred the line between intelligence and law enforcement by permitti
ng the FBI to obtain foreign-intelligence warrants from a secret court on a lower standard of evidence than probable cause, as long as generating intelligence was merely a “significant” purpose of an investigation, rather than its primary purpose. Senator Russ Feingold of Wisconsin warned that the FBI would now use the Foreign Intelligence Surveillance Act “as much as it can,” circumventing the Fourth Amendment’s protections against unreasonable searches and seizures. On October 25 he was the only senator to vote against the bill, known as the PATRIOT Act.

  After 9/11 the criminalization of association, through the PATRIOT Act and other means, had a life-changing effect on Adham Hassoun.

  Hassoun, a refugee and a war survivor, had donated throughout the 1990s to Muslim refugee charities, including an al-Qaeda-proximate one called the Global Relief Foundation. Hassoun insisted that he had no idea that it had terrorist connections; when charities came to the Miami mosque he attended, he didn’t ask questions. The same was true of a convert from Chicago who attended the mosque, Jose Padilla. Padilla seemed as if he couldn’t quite get his life together, so another congregant who had moved to Egypt, Mohamed Youssef, offered him a new life there. Hassoun encouraged Padilla to take Youssef up on it. Over the two years that followed, Hassoun received about four calls from a grateful Padilla. He thought little of it until June 2002, when Bush declared Padilla, an American citizen seized as a material witness, to be an enemy combatant, and locked him up in a military prison with no rights.

  On June 12, police and FBI agents approached Hassoun’s car. He remembered them coming toward him in plainclothes and wielding pistols. “I’m from Lebanon, these people are like Toy Story to me,” he said. They informed him that he was being detained on an immigration violation, even after he produced his work permit, rather than charged with a crime. They took him to a city jail and asked why he hadn’t told them about Padilla. Hassoun replied that he had nothing to tell. For the next two years he would be held in Miami’s Krome detention center, an immigration lockup. “It was the first time in my life I’ve been handcuffed. Only in the land of the free and the home of the brave,” Hassoun remembered.

  Over the course of several jailhouse interrogations, it didn’t appear to Hassoun that the FBI was attempting to unravel the mystery of Jose Padilla’s alleged plot to detonate a radiological weapon. Instead, they were waiting for him to crack and turn informant. Hassoun was indignant. “They would say I could get out, ‘We can help you if you help us, we can talk to immigration,’ ” he recalled. “The way I’m living, my kids were living, they thought I would be extremely desperate, look like a weakling, and cooperate fully, kiss their ass. They were wrong.” Several of Hassoun’s colleagues from MarCom Technologies wrote to immigration vouching for him. One of them, Valdis Ozols, wrote a lengthy October 2002 statement stating how on 9/11, “I saw a man in sorrow because of the pain his adopted country was experiencing. Never once did I see anything that would convince me he was an extremist.” Ozols concluded: “Our reactions to Adham should not be based on the fears and anger arising from the events of September 11, but should be based on the principles that have been a part of our country since July 4, 1776.”

  Not everyone was as unwilling as Hassoun to inform on their communities. Craig Monteilh, a felon convicted of robbing cocaine dealers, sued his FBI handlers for manipulating him into spying on the Islamic Center of Irvine, California, where he would encourage co-worshippers to visit jihadist websites. By one accounting, such FBI tactics in the course of a decade resulted in a network of fifteen thousand informants. Some operated in mosques, demonstrating the conditional nature of First Amendment protections for Muslims after 9/11.

  Untangling webs of association was laborious work for the FBI. Feingold warned that the PATRIOT Act would incentivize the bureau to use foreign-intelligence warrants to make the task easier. But it turned out freedom of association was at greater risk from a different agency. The National Security Agency had secretly built a program to uncover social connections at unfathomable scale.

  The day after Yoo issued his memorandum, the NSA’s director, air force lieutenant general Michael Hayden, decided that every phone call from Afghanistan to the United States was interceptable. The logic was that any such conversation could theoretically contain evidence of a terrorist connection. It ignored the reality of commonplace international communications, as between relatives; or aid workers and journalists contacting their home offices. In fact, all such phone calls involving people on U.S. soil, citizens or not, were constitutionally protected from interception absent specific suspicion of a crime. Tenet told Bush and Cheney that Hayden would go to prison for what he had done. Cheney reportedly promised to post bail.

  In his memoir, Playing to the Edge, Hayden suggests that he owed his job to a stint in the White House alongside Tenet’s deputy. Now, he was the NSA’s director at perhaps the most important moment in its history. On authorization from Cheney, and armed with a legal memo from Cheney’s aide David Addington—with another from Yoo soon to follow—Hayden enlisted the major telecommunications companies and internet service providers to help the NSA collect Americans’ international communications data, from phone records to email and browser history, as well as domestic call records, in bulk. Doing so violated the Foreign Intelligence Surveillance Act—a reformist 1978 law established to be the “exclusive means” for conducting foreign-intelligence interception within the United States—thereby rendering quaint Feingold’s fear that the FBI would overuse FISA. The program Hayden activated on October 6, STELLARWIND, was a secret for another four months even from the chief justice of the secret FISA Court. The other members of the court, save his successor as chief, would not learn about the existence of STELLARWIND until they read about it in The New York Times four years later.

  Emerging technology could not have been more opportune for a panopticon. The turn of the twenty-first century inaugurated a seismic economic phenomenon that the Harvard Business School professor emerita Shoshana Zuboff has termed “surveillance capitalism.” Rising tech giants raced to commodify the digital traces of everyone’s lives on the internet, recognizing that ever more sophisticated methods of sifting through enormous data sets would reveal patterns useful for tracking purchasing and other behavioral habits. Doing that required the companies to incentivize people into generating ever more data on their platforms. A volume the size of human history’s records until 2003 was now generated every two days, according to Google’s Eric Schmidt. Sifting through it all and finding patterns—including those that predicted future behavior—was an ambitious task. In 2004, the CIA’s investment arm staked $2 million to a company entering the new field of data-mining, with the Tolkien-inspired name Palantir.

  The digitization of everything was a gift to the NSA. Once the glut of metadata—records generated by the websites someone visited, emails received, and so forth—streamed into Fort Meade’s servers, it entered a tool called MAINWAY, which could reveal an astronomical number of connections between people. Its sophistication increased with the volume of its input, until it could effectively operate retroactively, revealing patterns of communications going back years. Such connections had life-and-death implications. Hayden later observed, “We kill people based on metadata.”

  * * *

  —

  THE NSA HAS A GREAT DEAL invested in its image of itself as a law-abiding foreign-intelligence agency. Yet there could be no reconciling STELLARWIND with either FISA or the Constitution. It was committing the first mathematically exponential violation of constitutional rights in American history, to say nothing of claiming for itself the right to steal the records of untold hundreds of millions of foreigners’ communications. However much control over the program rested within Cheney’s office, STELLARWIND was the enthusiastic creation of the Security State, even if much of the NSA’s workforce knew nothing about it. The part that participated in it could have trouble seeing NSA’s targets as people instead of data. On
e internal memo on how to format accounts for surveillance used the placeholder name “Mohammed Raghead.” NSA attorneys provided Hayden with the necessary argument for why a secret program collecting Americans’ communications records in bulk was constitutional. They interpreted Addington’s authorization to mean that “NSA did not actually ‘acquire’ communications until specific communications were selected” for search, according to an internal history of STELLARWIND. It was akin to arguing that your credit card wasn’t stolen until the thief registered a charge.

  The case study of the PATRIOT Act, passed three weeks after Hayden switched on STELLARWIND, suggests that Congress would have given the NSA its cherished freedom from FISA. But the unilateral assertion of presidential authority was the point. “Anecdotal evidence suggests that government officials feared the public debate surrounding any changes to FISA would compromise intelligence sources and methods,” the NSA inspector general explained. The only members of Congress informed about STELLARWIND were a pivotal body known as the Gang of Eight, a group composed of the political leadership of the House and Senate, joined by the Democratic and Republican heads of the congressional intelligence oversight committees. The intelligence agencies used them as proxies for political support from a legislature it otherwise skirted. On October 1, 2001, a week into the Afghanistan call collection and five days before the activation of STELLARWIND, Hayden briefed the Gang of Eight. Days afterward Nancy Pelosi, the senior Democrat on the House intelligence panel, told Hayden she was “concerned” about his “expansive view of [his] authorities”—seemingly less concerned about the actual interception than about whether he had the proper “legal analysis” and presidential authorization to conduct it. A year and a half later, when Senator Jay Rockefeller joined the Gang of Eight and was informed about STELLARWIND, he wrote to Cheney to say the technical complexities of the NSA’s operations overwhelmed his ability to provide informed consent to the surveillance. Hayden nevertheless considered all this to mean Congress was fully informed and fully on board.