The new plan could change everything, constituting the most dramatic expansion of the NSA’s power and authority in the agency’s forty-nine-year history.
Tracking calls from what NSA analysts called “dirty numbers” could be conducted without triggering a warrant requirement, regardless of whether they were placed to people in the United States. The agency, the CIA, and the FBI had obtained an array of such numbers, both independently and from foreign intelligence services, including those of Middle Eastern countries such as Saudi Arabia, Jordan, Egypt, and even Yemen. All of those were entered into one massive data set at NSA.
If a call from a dirty number went to one phone, then another, then another before finally reaching the United States, the NSA could monitor the conversations at each point. With the agency in hot pursuit, it could continue listening to calls from the American phones connected to the dirty numbers, even if they were placed to others in the United States. At that point the FBI could be brought in to seek a FISA warrant so that the assorted American phone lines linked to the original number could be monitored.
The standards for what constituted “an American person” under FISA would be changed, removing some investigative impediments to the NSA’s work. A suspected terrorist—or someone tied to a terrorist—could no longer trigger a warrant requirement simply by standing on American soil. Monitoring United States citizens or resident aliens overseas would no longer—if they could be linked to terrorism—require a warrant. Charities or companies based in the United States and suspected of terrorist ties would no longer be defined as “an American person” and afforded Fourth Amendment protections.
Moreover, a previously forbidden tactic known as “reverse targeting” would be allowed in certain circumstances. In the past, relatives or friends of a known terrorist could not be monitored if they lived in the United States unless evidence had been discovered showing their own involvement with groups like al-Qaeda. So, if the terrorist telephoned them from another country, the NSA would have to intercept the call from his side. As part of the new plan, the NSA could conduct electronic surveillance of the family or friends in the United States, in hopes of picking up an overseas call from the call from the terrorist.
The techniques and abilities to monitor e-mails would change, too. For years, there was a perceived difficulty in e-mail interception—digital data flowing through the Internet is broken up into smaller packets of information, which then can be routed anywhere in the world. An al-Qaeda member in Kabul could e-mail another in Kandahar, but the packets might travel through Internet connections in America. That posed a theoretical problem under FISA: the data racing through American Internet systems could be deemed as being within the United States, setting off the need to go to a FISA court. The proposed NSA plan of action would ignore these technical intricacies and instead focus solely on the location of the sender and recipient of the e-mail.
There were two methods of e-mail monitoring. The most simplistic involved the direct interception of a message to and from an account linked by other intelligence to an al-Qaeda member. The second method involved deeper scrutiny. Connections between a suspect e-mail address and others—accounts that both sent and received messages there, whether in the United States or not—would be examined. At that point, a more detailed level of analysis would be applied, creating something of a ripple effect. The suspect e-mail address would lead to a second, the second to the accounts it contacted.
It was largely impossible to analyze so much information—upward of six petabytes, or six quadrillion bytes, of digital records every month—on a message-by-message basis. Instead, the NSA had to conduct broader analysis of a massive data set pulled together from an array of sources, starting with almost four billion public documents collected from thousands of easily accessed databases: property and airplane ownership records; boat and car registrations; phone numbers throughout the country; terrorist watch lists, and more. All those details would be melded with certain data from commercial sources; other government information, such as flight information from the FAA, could potentially be thrown into the mix.
This would be added to other materials that were not readily available, such as communications records held by telephone and broadband companies. The NSA would urge the corporations to share logs showing all calls to and from phones, including the time and length of the conversation, as well as details of e-mails showing when they were sent, to what accounts, and subject lines; for the most part, the contents would not be reviewed without a warrant.
This data set posed its own set of risks. It would not be composed solely of records from terrorists; rather, details of the activities of millions of Americans would be included. Rules would be in place to ensure that no one snooped on individual information contained in this vast data bank. The NSA would have no authority to pull up, say, some American’s e-mail account out of curiosity. Anyone violating this ban could potentially be committing a crime, just as an unauthorized IRS employee sneaking a peek at an individual tax return could be cited for wrongdoing. But the stricture was largely theoretical; sifting through the metadata to isolate a single individual’s records would be an almost impossible—and pointless—undertaking.
Instead, the NSA would use a larger process known as “Knowledge Discovery in Databases”—or KDD—to clean, select, integrate, and analyze the data. In essence, the ocean of information could be mined, not for the purpose of spying on any individual American but for creating a model the NSA could analyze to discern anomalies that could in turn reveal the path to a terrorist cell.
Whatever the intent, the proposal was explosive. If the public learned of it, administration officials might be slammed for violating the Fourth Amendment as a result of having listened in on calls to people inside the country and collecting so much personal data. Still, the proposed program intrigued Cheney. Granting the NSA authority to track phone calls and e-mails of a specific terrorist and to develop a massive data model might give the government the power to stop the next attack. He told Hayden and Tenet to assemble a presentation for the president.
The new program needed a code name. It would be called Stellar Wind.
• • •
The trip to North Carolina had been a delight. Robert Stevens and his wife, Maureen, had driven from their home in South Florida on September 27 to visit their daughter Casey in Charlotte. On a crisp day, they hiked the trails at Chimney Rock State Park, watching as hawks flew overhead.
Now it was October 1, and the Stevenses were packing their car to head home. Robert, sixty-three, needed to get back to work. He had recently landed a job as a photo editor at the Sun, a supermarket tabloid published in Boca Raton, and didn’t want to get off on the wrong foot by spending too much time away from the office.
As the couple prepared to leave, Robert told Maureen that he wasn’t feeling well. Driving home, he became nauseated. By the next day, he was running a high fever and became incoherent. At 2:00 A.M. on October 3, with his condition worsening, Maureen took him to John F. Kennedy Medical Center in Palm Beach County. In the emergency room, the doctor on duty theorized that Robert was suffering from meningitis. Then, five hours after he arrived, Robert began to shake with violent seizures. The doctor decided that a spinal tap was needed to help make a diagnosis.
The spinal fluid was cloudy, a sign of a possible virus or bacteria. An infectious disease specialist, Dr. Larry Bush, examined the substance under a microscope and saw rod-shaped, meshlike cells. A Gram stain, used to differentiate bacterial species into two large groups, turned the sample a bluish-purple color; they were gram-positive. The shape of the bacteria, the stain results—these microbes were part of the genus Bacillus.
Dr. Bush’s mind raced. He had already read that some of the 9/11 terrorists had lived in South Florida and attended flight school there. There had been reports that one of the men had scouted around for a crop duster, a plane that could be used to scatter disease-causing bacteria over a wide area.
He put the pieces of the puzzle together. He knew what he was seeing. Anthrax.
In the days to come, more tests would prove Dr. Bush to be right. Stevens was suffering from inhalation anthrax. He soon fell into a coma and died on Friday, five days after the symptoms first appeared.
• • •
On October 2, the urgent request from Ottawa scrolled out of fax machines at diplomatic and intelligence agencies around the globe. The Canadians, it read, needed help taking down a terrorist cell inside their country.
The national police—the Mounties—had assumed control over the investigations of domestic threats from the Canadian intelligence agency, CSIS. Now those officers were ready to arrest al-Qaeda members living in Canada—all they needed was evidence to prove their suspects’ guilt.
Since the 9/11 attacks, CSIS had already contacted two men on the list, Ahmad El-Maati and Abdullah Almalki, but the interviews hadn’t gone far; the men had demanded lawyers before they would answer many questions. Still, the Canadians thought there was no time to waste—both men, officials concluded, were extremely dangerous.
El-Maati, the Mounties believed, could well be planning an attack. He had been stopped in his truck at the border weeks before carrying a map of Canadian federal buildings. He also had spent time in Afghanistan and had come in contact with suspicious people.
A CSIS agent had dropped by Almalki’s home late in the evening a few nights before. The intelligence agency believed it had good reasons for their wariness of him—Almalki had traveled to Afghanistan, too, spending two months there seven years before; he also came into contact with one suspicious person. And then there were those shipments of field radios from his company, Dawn Services, to Microelectronics International, which supplied the Pakistani military. Before shipping the radios, Almalki’s company removed them from their original boxes and repacked them into new ones labeled with the Dawn Services name. Standard fare for the exporting business, but to law enforcement it was proof of something devious—Almalki, they concluded, was a procurement officer for bin Laden.
Somewhere in the world, the Mounties felt sure, was evidence to prove their suspicions. And so they launched their dragnet by fax, asking counterparts worldwide to search their files for information. Responses were needed quickly, the fax said—both Almalki and El-Maati constituted “imminent threats” to Canada and were working with al-Qaeda.
Despite the certainty of their message, the Mounties didn’t know if any of what they had written was true. They hadn’t started investigating either man, and had obtained only skimpy records from CSIS. Other than the map, they had next to nothing on El-Maati. There was some information in the files about Almalki, purportedly provided by an outside source. But the records were wrong—the source had given evidence about someone else, not Almalki.
None of the recipients could know that the statements in the fax were fiction. Instead, the countries that received the document—including Syria, where both men were born—now listed these two Canadian citizens as dangerous terrorists.
• • •
Brad Berenson strolled from the Eisenhower Executive Office Building to the White House. As an associate counsel in Gonzales’s office, Berenson made the short trek almost every day from his office in the beautifully monstrous structure to the executive mansion, where his boss worked.
This time, Berenson was coming over with an important purpose. He had been thinking about how the terrorists would be brought to justice after they were captured; he didn’t know that very question was already being explored.
Berenson reached the White House counsel’s suite and spotted Flanigan in his office. “Tim,” he said, “I’ve been thinking about a problem, and I’m not sure what the answer is, but what are we going to do legally when we capture these terrorists?”
There was going to be a need to interrogate them for intelligence, to help wage the war and protect the country from other attacks. But that couldn’t be done in a criminal case; prosecutors can’t talk to defendants represented by counsel unless the lawyer is present. Treating terrorists like criminals would be a colossal blunder, Berenson said. The government couldn’t kill them, couldn’t let them go, and couldn’t indict them.
“So how do we finally dispose of these guys as a legal matter?” he asked.
Flanigan gave a fleeting smile. “You know, it’s interesting. You’re not the only one who’s been thinking about that.”
He told Berenson to look up an old Supreme Court decision, Ex Parte Quirin, the case that Addington had told him about recently involving some captured Nazi saboteurs who were tried before a special military commission.
There was also, Flanigan mentioned, an interagency group headed by Pierre Prosper that had been trying to resolve this issue. “You should go ahead and start attending those meetings, be our representative there.”
Berenson agreed to read Quirin and to find out more about the Prosper group. But from his short conversation with his boss, he already suspected that Flanigan had decided on military commissions as the answer.
• • •
The interviewer held a digital camera in his hands, trying with little success to keep it steady. The automatic lens rotated, focusing on a bearded, turbaned man sitting in front of a concrete wall. The man was subdued in every way, his languid face expressionless. He seemed shy and withdrawn, averting his eyes as he stroked his beard.
But his appearance belied his reputation. This man, Abu Zubaydah, had been deemed by the United States to be one of the world’s most dangerous terrorists. Intelligence operatives had linked Zubaydah to devastating al-Qaeda attacks, including the bombings of the USS Cole and American embassies in eastern Africa.
Zubaydah had been slow to commit to the extremists. In his youth, he had considered himself to be a bad Muslim but was inspired in the early 1990s by the Palestinian cause. He traveled to Afghanistan for military training, much to his parents’ dismay. At the time, his brother had journeyed to Kandahar, where he tried to persuade Zubaydah to come home to Saudi Arabia. Zubaydah had refused, instead unsuccessfully urging his brother to join him in jihad. Still, he had doubts about his decision. Sometimes he considered leaving Afghanistan and abandoning the Islamist life for college; maybe, he thought, he could become a computer expert or an engineer, marry, and raise a family. For a while he felt homesick, but over time, those feelings had diminished. Eventually, he began to think that any activity outside of jihad was silly.
On this day, Zubaydah had reluctantly agreed to be interviewed for an al-Qaeda recruiting video. He considered the exercise relatively pointless—he didn’t think the recordings provided any benefit. Their enemies knew why al-Qaeda was fighting and knew that the Islamist cause was righteous. But Zubaydah’s superiors had persuaded him to take part. They wanted him to speak of al-Qaeda’s past successes and praise the 9/11 attacks—even though, at this point, bin Laden was still asserting the terrorist group had not been involved.
Zubaydah opened by offering prayers to God. “We follow Allah and the messenger has said regarding killing the enemies of Allah—Jews or Christians or apostates or Hindus or atheists—all those, all enemies of Islam they are our enemies,” he said, fumbling his words.
He glanced toward the ground. “Allah almighty said, ‘Strike the terror into the enemies of Allah for they are our enemies.’ Therefore when we terrorize them, we implement accordance that what Allah has commanded to us.”
Averting his eyes to the right, Zubaydah began listing several attacks launched by al-Qaeda since 1990.
“Then the operations set up by the sheikh Bin Laden in Kenya and Tanzania, then the Cole operation, truly magnificent operations at the Trade Center on Manhattan Island and in areas around Washington and in New York,” he said. “Truthfully, I am one of the people who support the most such an operation wholeheartedly.”
Jihadists would champion further attacks, he said, as martyrs, financiers, or coordinators. “Enemies of Allah shall not rest,” he said. “Allah is wil
ling.”
• • •
Nighttime on October 3. Bush was sitting behind the desk in his private office at the White House residence when a handful of administration officials arrived to discuss Stellar Wind. Their scant numbers were no accident; Bush had earlier ordered that only a select group would be allowed to know about the NSA program. If it leaked, he told his advisors, it wouldn’t work. They couldn’t secretly monitor al-Qaeda if the terrorists knew how it was done.
The final shape of the program had been worked out. Only the mechanics of the formal approval remained, such as briefing a select group of cabinet officers, seeking their involvement, and obtaining their signatures. But before Bush’s aides went through those machinations—with the potential of setting off disclosures to the press—they needed to check one last time with the president.
There was good reason for caution. Lawyers from both the NSA and the CIA had already expressed reservations about the plan in conversations with the White House. This was a very bold idea, the lawyers said; while they didn’t contend it was illegal, they feared it was so close to the line that the NSA could easily shift from legitimate intelligence collection into improper overreaching. There was a strong argument, they said, that tapping calls coming into the United States or collecting a massive database of personal information about Americans might constitute domestic surveillance in violation of FISA.
White House lawyers assured Bush that Stellar Wind was within the law. But at this meeting in his office, they again reviewed the legal implications. Was the president, Gonzales asked, comfortable with setting the initiative in motion?
“Everyone understand, I know this is a big deal,” Bush replied. “We are undertaking something that I know may be unprecedented.” Sometime in the future, others may question the legality of Stellar Wind. But he was convinced that it met the dictates of the law and, more important, was necessary to keep America safe.
That was that. He told his entourage to produce the final directive for his signature the next day.
500 Days: Secrets and Lies in the Terror Wars Page 14
