Playing to the Edge: American Intelligence in the Age of Terror

by Michael V. Hayden

  Andy Card informed the congressional leadership that we were going forward based on the White House counsel’s and the president’s view that this was legal. He emphasized the Madrid bombings in his rationale.

  But that decision didn’t hold. That Friday morning Comey and Mueller told the president that they would have to resign if the program continued unchanged. I got a call from Al Gonzales asking me what kind of operational effect discontinuing the contentious aspects of Stellarwind would have. He needed a sense of scale. Without much science behind me, I offered that we would lose about 20 percent of our overall Stellarwind effectiveness, but would keep 80 percent. I also had to tell the White House that it would take about a week to shut down those aspects completely and that I would need guidance on what to do with the troves of data already collected.

  The president had told his team to find an approach that made Bob Mueller happy; the president could live with some objectors, but not with Mueller, for whom he had a very high regard.

  The next day, Saturday, I received a phone call at home from Mueller. He just wanted to tell me that he still had the highest regard for me and for NSA, that the issue was never about my or NSA’s respect for the law. It was a legal question, pure and simple. He knew we were trying to do the right thing. It was a kind gesture, but not really necessary. I never thought that the episode threatened our personal relationship, and I thought that our respect for law needed no defending.

  The following Wednesday, March 17, my fifty-ninth birthday, Al Gonzales called to tell me that the president had decided to modify the Stellarwind program. We needed and were given until late March to complete the required changes, which we did.

  All aspects of Stellarwind had previously been authorized by the president, in our view under his Article 2 authorities, in DOJ’s view derived from the Authorization for the Use of Military Force against al-Qaeda. We knew all along that it would be more stable and less contentious the more we tucked it under the FISA Court. We now accelerated that process.

  The White House gave us a target of May 6, the expiration date of the current authorization, to get the court’s blessing on aspects of the program.

  There was a flurry of meetings and phone calls over the next two weeks among ourselves, the White House, Justice, and the DCI about how to approach the court. The president was giving us plenty of running room. Al Gonzales called me at home to tell me that the president was very open to our having a very candid sit-down with the chief judge.

  Jack Goldsmith and Patrick Philbin (who had raised the original concerns at Justice) now worked with us to move aspects of Stellarwind to the kind of broad legal footing more appropriate to a program that was now long-lived and not simply an emergency measure.

  While our Justice colleagues were working legal theories, our task was to brief operational and technical details of Stellarwind to the presiding judge of the FISA Court, now Colleen Kollar-Kotelly. Our briefing included the disputed aspects of the program, since our lawyers still believed that they met the reasonableness standard of the Constitution, and we wanted to resume them.

  Over two successive weekend days in mid-May 2004, NSA experts and lawyers, joined by senior Justice Department officials and the White House counsel, crowded into the top secret vault of the FISA Court. We explained what we had been doing, why, and to what effect. We also showed how we might tighten our effort in the disputed portions—potentially giving up some collection—so that we could decrease the proportion of US person information we had been ingesting.

  In July, Kollar-Kotelly authorized NSA to collect, in bulk, certain e-mail metadata. Clearly this aspect was now under the court’s authorization rather than the president’s.* On the core issues, including the incidental collection of US data, the court had broadly gone with the White House’s (and Justice’s pre-March) view.

  So, despite later published accounts of high drama and breathless runs up the stairs at George Washington hospital, given a little time the administration found an acceptable equilibrium for the Stellarwind program. Objections at Justice were quieted. In fact, Deputy Attorney General Comey’s signature was on several of the forty-five-day authorizations that were later issued.

  As the summer of 2004 was drawing to a close, Stellarwind was still operationally sound, carefully run, and seemingly back on sound political and legal ground.

  We felt pretty good. For a while.

  SIX

  GOING PUBLIC . . . WILLINGLY AND OTHERWISE

  FORT MEADE, MD, AND WASHINGTON, DC, 2004–2008

  In early October 2004 the New York Times had a story, or at least part of a story, about surveillance of Americans without a warrant. One of the reporters on it was James Risen, an aggressive intelligence-beat veteran who had coauthored a book on Cold War espionage with CIA case officer Milt Bearden. His partner now was Eric Lichtblau, the Times’s Justice Department correspondent.

  There’s a rhythm to how stories about the intelligence community get written. Reporters usually circle the topic from the outside in, calling folks who they think know something about a topic, even if formally they may not know much. That way, when they get to more fully informed officials, they can began with, “I’m hearing that . . .” and thereby hope to force comment. Risen and Lichtblau’s circles were tightening based on what we were hearing.

  That set off multiple conversations between the White House, CIA, Justice, and NSA. National Security Advisor Condi Rice was keeping the president informed about this, even though he was mostly on the road. We were just weeks out from an election, after all.

  After the election, when the president asked me to speculate on who might be the source of the leaks on which this story was based, I suggested that—since the story the Times had was incomplete—the leaks likely came from people not actually read into the program. I said, “It sounds like watercooler talk, and a lot of the watercoolers seem to be in the Department of Justice.”

  I was at least partially right. In December 2008 Thomas Tamm, a career DOJ lawyer, outed himself in a Newsweek cover story as one of Risen and Lichtblau’s key sources. Tamm was not read into the program, and since Justice did not pursue the investigation into the leak, whatever other sources Risen and Lichtblau might have had remain unknown.

  Risen’s tightening circles were getting close to me at NSA. He had already e-mailed the White House and had talked to Mark Mansfield in the Public Affairs shop at CIA. We put him off for about a week and then in mid-October I accepted Risen’s call.

  He began by asking me if we could talk in person about this.

  “That would all depend on what this is.”

  He outlined his story: The president had authorized access to US telecommunications switches without benefit of court or new law. Some were questioning its legality. Could I help him better understand this?

  I declined, saying that I couldn’t discuss operational matters, but did say that everything we were doing was lawful, effective, and appropriate. I underscored the effective part to suggest that disclosures could put the nation more at risk.

  Risen then went through a detailed description of his story: radical shift in policy; highly guarded secrets; access to large volumes of US communications; response to terrorist threats; backdoor arrangements with American telecoms; shaky legal opinions.

  I thought that he had part of the story here. Some garble, though, and I was in no mood or position to correct him. He had some sense of the content collection we were doing under Stellarwind, although it seemed much exaggerated. He showed no knowledge of any acquisition of metadata.

  I again declined to comment other than my “lawful, effective, and appropriate” mantra, which I repeated.

  Risen then suggested that we talk about this off the record.

  “Why would I do that?”

  He said that he wanted to get it right, that he wanted to be “fair and balanced,” inadvertently citing
the famous Fox News line that prompted a chuckle from both of us as soon as he said it. He again pressed for a private meeting.

  I told him that it would be hard for me to say anything more. I then added that, off the record, within US law I was duty bound to be as aggressive as possible. “Otherwise the taxpayers would be wasting their money on a lot of antennas out here.”

  Risen then doubled down on his carrots and his sticks. He said that I had done a great public service presenting NSA to the world and trying to clear up misperceptions. So it would behoove me to sit down and talk, since he had been following intelligence for a long time and this was the most serious story he had ever had.

  It wasn’t quite, “You’re going down,” but I think something like that was being messaged.

  I pressed for a publication date (he said, “Only when it is ready”) and thanked him for the call and the information.

  I don’t recall talking much to Risen after that. I did talk a lot to the Times’s Washington bureau chief, Phil Taubman. Taubman was a veteran, steeped in defense and intelligence issues, formerly Moscow bureau chief. He had spent a lifetime balancing the needs of transparency and security, so from our point of view, we could hardly have had a better interlocutor. (In 2008 Phil returned to his alma mater, Stanford, to teach about the tensions between a free press and national security. Both Condi and I have been guest presenters in his class using the Times’s Stellarwind saga as a case study.)

  Condi arranged a meeting between John McLaughlin, the acting DCI, and Taubman and Risen. We held a secure videoconference with John before the meeting and set on the theme: “If you go with this story, you will set in motion a chain of events that, in a short time, will take away the most effective tool in our arsenal to defend America here and abroad against terrorism.”

  On an overcast October day, John McLaughlin, his chief of staff John Moseman, Taubman, and Risen met in the DCI’s comfortable office in the Old Executive Office Building across from the West Wing. John remembers arranging the chairs in a semicircle in front of his large desk to make this an informal discussion rather than a lecture.

  John had to be careful. He couldn’t confirm anything. “If there were such an operation as this, it would be handled under strict protocols such as . . .” He continually emphasized its lawfulness and appropriateness even if never quite describing or confirming it. With questions and comments, it lasted the better part of an hour. Taubman seemed to be thoughtful and reflective throughout. Risen was described as obnoxious, argumentative, and combative, commenting only to rebut with a constant theme of the public’s “right to know.”

  Contemporaneous notes indicated that Taubman understood the seriousness of the question, while “Risen doesn’t give a shit, frankly.”

  I have always thought that a good rule when talking to a responsible journalist is to tell him more rather than less, even (especially) if your purpose is to prevent the publication of something you believe would harm national security. Taubman seemed to have a balance to his thinking and the more he knew, we reasoned, the more he would be inclined to protect what we believed to be properly classified information. The president seemed to agree. “Tell him whatever you need to tell him” was the guidance relayed to us.

  So we became pretty forthcoming—with Taubman. The Times story was anchored on the actual content collection we were doing of phone calls. We stayed focused on that, as well. No moral, ethical, or legal requirement to bring up other activities of which they were, as of yet, unaware.

  I emphasized that when we listened to a phone call, we already had probable cause that one or both ends of the call were al-Qaeda related. We made the case that FISA, as then constructed and then implemented (lengthy individualized warrants for any number on which you wanted to collect), denied us the agility we needed to keep up with the target.

  The big meeting was in Condi’s West Wing office one evening in late October. We gathered in couches and chairs around her coffee table. I believe (notes and memories have proved sketchy) that Bill Keller, executive editor of the Times and the ultimate authority on the go/no-go publication decision, was there. So was Taubman. On the White House side were Condi, Al Gonzales, and me. We approached the session with the same ground rules we had already been using: protect information by sharing more of it.

  It wasn’t a harsh or confrontational meeting. Not even impolite. On the coffee table between us I laid out an “analyst’s notebook” graph that showed a variety of different nodes of the al-Qaeda network. Although it was an accurate and current chart, it didn’t quite prove anything in the current discussion (which was about intercepting content). But it did show how things were interconnected, how individual pieces were important, and at least strongly implied that there was real risk if someone (like you, Mr. Keller) caused us to lose access to some of the pieces.

  We never even thought of suggesting something as crude as “blood will be on your hands,” but looking back, it’s probably fair to say we were dropping more than hints that—barely three years after 9/11—none of us should start feeling lucky.

  It was also important that the overwhelming majority of the calls we were actually intercepting under the president’s authority were foreign-to-foreign (a reality that subsequent press accounts and even US government evaluations seemed to have trouble digesting or appreciating).

  The peculiarities of FISA actually required us to get an individual warrant to fully cover each and any of the targeted numbers, an unintended consequence of a law drafted for a communications environment far different from the one with which we were dealing. If these international calls had been still bouncing into and out of the United States through the air—as they did in the 1970s when satellites were the long-haul system of choice—NSA would have been free to intercept them by targeting the foreign number. That’s because the 1979 FISA law established a carve-out for collecting international satellite communications from US soil. But the subsequent telecommunications revolution now had these communications moving on a cable. To grab them from a cable on US soil generally required a warrant—a warrant on the targeted terrorist number—and that would have required literally thousands of individualized warrants against foreign numbers, which changed by the hundreds daily, a nearly impossible administrative task. There were targeted US terrorist-related numbers in the Stellarwind system, to be sure, but by far most of them weren’t.

  The 2004 presidential election came and went without the Times publishing, but what the Times would ultimately do was still unresolved after the election. We knew that Taubman’s greatest concern was American privacy. I needed to send the message that we didn’t take that lightly, that we were still respectful of US privacy, that this was being done by serious people. In mid-November I invited Phil to my eighth-floor office at Fort Meade, and I had him sit on the sofa as I introduced him to Bob Deitz, the general counsel, and two of our senior analysts, one of whom had been with me in the dramatic White House Situation Room briefing the previous March (chapter 5).

  I walked Taubman through the importance of the program once again and then pointed out that US privacy was still a priority. Hanging from the ceiling in the room where this was done was a large black-and-gold sign headed by the question “What Constitutes a US Person?” Below the question was a description of the four categories that got an individual or a group into that protected status. Despite the aggressive collection, US person identities would be “minimized” (masked) unless that identity was absolutely essential to understanding the intelligence we were reporting.

  I then stood up and, much to the surprise of my two analysts and Phil, announced, “Phil, you probably have specific questions you want to ask these guys. Let me leave you alone for a few minutes.”

  Walking toward the door, I turned to my officers and told them, “Just answer his questions.”

  Spontaneous as this was, it wasn’t really very daring. These guys were smart and really b
elieved in what they were doing.

  One of the analysts later told me that after this session he had rushed from my office to the general counsel, much like an errant Catholic rushing to confession, to ask how he could possibly pass his next polygraph, since he had just told a journalist some of America’s deepest secrets. “It was authorized,” Deitz responded. “Don’t worry about it.” Apparently he didn’t. He passed his next poly.

  I returned to my office after a decent interval to say goodbye to Taubman. As he was leaving, I said, “Do you realize you’ve gone where no one in your profession has gone before?”

  He quipped back, “Yeah, and I expect to get bumped off in the parking lot.”

  We still had one more card to play. We put Taubman in touch with Jane Harman, who was willing, in broad terms, to express her comfort with what we were doing.

  On December 8, Condi called me to relay the news that the Times had decided not to publish. Taubman called me with the same message, with the usual caveat that we would let him know if someone else was smelling around about the story. I agreed, and added that we had gotten “a small burp” from the Washington Post, but that had gone away.

  Editor Bill Keller later had to defend the Times’s decision not to publish in late 2004. I’d like to think our national security argument swayed him, and although we have never talked about it, I think Taubman was a genuine voice of caution within the Times.

  The presidential elections may have been a factor too. It would have been hard to publish a story that could have had a powerful, perhaps decisive (if unpredictable), impact on the presidential election. That’s a pretty heavy lift for a newspaper, even one that claims to be the nation’s newspaper of record. And publishing such a story right after the election would have been running against a president who had just received a national mandate based, in part, on his counterterrorism policies.

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