by Tim Weiner
Within weeks, the mission took a bad turn. The FBI was ordered to work with the interim interior minister of Iraq to rebuild law enforcement in the nation. The minister was Bernard Kerik, the New York police commissioner at the time of the 9/11 attacks and a long-standing friend to the Bureau. Money was no object for him. Bricks of shrink-wrapped hundred-dollar bills were available for everything from informant networks to computer systems.
But Kerik left Baghdad after ninety days, on September 2, 2003, mission unaccomplished. The only things he left behind were 50,000 Glock pistols in a warehouse. Bush named him the new leader of the Department of Homeland Security; an FBI investigation derailed the nomination and led to Kerik’s indictment and imprisonment for fraud.
The FBI’s training of the Iraqi police was interrupted by a series of immediate emergencies. Car bombs were going off everywhere. The FBI combed through the wreckage of the Jordanian embassy and the United Nations headquarters and the Red Cross in Baghdad. The American military had to call on the Bureau to collect evidence from a growing number of crime scenes—suicide attacks, roadside bombs, and sniper assaults on military checkpoints and police stations—as its control of the occupied city began to slip.
Days after Kerik departed, the FBI’s agents were assigned to interrogate prisoners at Abu Ghraib, the biggest prison in Baghdad. They took thousands of fingerprints and conducted hundreds of interviews in the last three months of 2003. Agents were eager to find detainees who had served as Iraqi intelligence officers or had traveled to the United States. But they were loath to work inside the chaotic main building at Abu Ghraib, preferring to talk to detainees in tents or trailers. Nor did they work at night, when the compound was mortared by insurgents. So they started to hear the rumors of the torture and the deaths inside the prison only in November and December 2003. Not until January 21, 2004, did they learn firsthand from an army captain that there were videotapes of beatings and rapes. A senior FBI agent in Baghdad, Edward Lueckenhoff, relayed the news to headquarters. It was the first time anyone in Washington had heard about the evidence that would surface more than three months later, tarnishing the honor of the United States around the world.
Three of Mueller’s senior counterterrorism aides weighed the report and decided to do nothing. It was out of their jurisdiction and above their pay grades. They did not want to wreck the FBI’s relationships with the military and the CIA in Iraq. Something more important was about to happen. The FBI was about to get the first crack at High Value Detainee Number One.
Saddam Hussein and George Piro sat down for the first of their twenty-five conversations inside the razor-wired walls of Camp Cropper, the American military’s brightly lit prison at the edge of Baghdad International Airport, shortly after 7:00 A.M. on February 7, 2004.
Piro had started his career at the FBI looking for al-Qaeda in Phoenix, Arizona, five years before. He was now one among a dozen native Arabic-speakers at the Bureau, and on his second tour in Baghdad. He had been born and raised in Beirut, and his voice had a distinctive Lebanese lilt that Saddam liked. They were soon on a first-name basis.
Piro was born around the time that Saddam first took power in Iraq. He was thirty-four years old, a tall, thin man with a bright-eyed intensity. He had been a police officer in Turlock, California, a town one hundred miles east of San Francisco, a home for decades to a community of Assyrian Christians from the Middle East. His parents had moved there in 1982, when he was twelve, to escape the war tearing through Beirut.
Piro had been preparing for six weeks to question Saddam. His interview reports show that the rapport he established and the rigor of his inquiries produced revelations that riveted the White House. Saddam said he had used the telephone only twice and rarely slept in the same bed two nights running since the first American war against Iraq began in 1991. He despised Osama bin Laden as a Sunni Muslim zealot. He was now prepared to die at the hands of his captors.
Six days into the debriefing, Piro questioned Saddam intensely and repeatedly about the elusive Iraqi chemical and biological arsenal that was President Bush’s justification for the American invasion.
Where were the weapons of mass destruction? he asked. Did they exist at all? They did not, Saddam said. It had been a long-running bluff, a deception intended to keep the Iranians, the Israelis, and the Americans at bay.
“We destroyed them. We told you,” he told Piro on February 13, 2004. “By God, if I had such weapons, I would have used them in the fight against the United States.” He was telling the truth.
The FBI—not for the first time—had produced evidence that undermined a presidency. “No one was more shocked and angry than I,” Bush wrote in his memoirs. “I had a sickening feeling every time I thought about it. I still do.”
45
“IF WE DON’T DO THIS, PEOPLE WILL DIE”
ON THE DAY after Pearl Harbor, President Roosevelt gave J. Edgar Hoover the power to monitor all telecommunications traffic in and out of the United States. Three weeks after 9/11, President Bush handed Robert Mueller an authority almost as strong.
For twenty-nine months following Bush’s order, the FBI had tracked thousands of telephones and Internet addresses in the United States under the aegis of the National Security Agency. “Every day,” as Mueller said, the Bureau investigated “e-mail threats from all around the world saying that this particular terrorist activity is going to occur in the United States.”
The task of “neutralizing al Qaeda operatives that have already entered the U.S. and have established themselves in American society is one of our most serious intelligence and law enforcement challenges,” Mueller told a closed-door meeting of the Senate Select Committee on Intelligence on February 24, 2004. Now the director faced a task as daunting. He had to defy the president and the vice president of the United States, confront them in a showdown over secrecy and democracy, and challenge them in the name of the law.
At least three separate global eavesdropping programs had been mining and assaying the electronic ether under the rubric of Stellar Wind. At least two of them violated the Constitution’s protections against warrantless searches and seizures. Mueller saw no evidence that the surveillances had saved a life, stopped an imminent attack, or discovered an al-Qaeda member in the United States.
Stellar Wind had to be reauthorized by the signatures of President Bush and Attorney General Ashcroft every forty-five days. They acted on the basis of reports from the CIA—intelligence officers called them “the scary memos”—justifying the continuing surveillance. The number of people who knew the facts was exceedingly small, but it was growing. A handful of Justice Department lawyers and intelligence court judges thought the programs were unconstitutional and their power had to be controlled. They convinced James Comey, the newly appointed number-two man at the Justice Department. And Comey soon won a convert in Robert Mueller.
On March 4, Mueller and Comey agreed that the FBI could not continue to go along with the surveillance programs. The scope of the searches had to be altered to protect the rights of Americans. They thought Attorney General Ashcroft could not re-endorse Stellar Wind as it stood. Comey made his case to his boss in an hour-long argument at the Justice Department that day, and Ashcroft concurred. Comey was a persuasive advocate. One of the FBI’s favorite prosecutors, the grandson of an Irish police commissioner, he had worked with skill and intensity on terrorism cases as the United States attorney in Manhattan for two years after the al-Qaeda attacks. The trust vested in him that day showed that the awe-inspiring force of American national security rested on personal relationships as well as statutory powers.
That night, hours after Comey won him over, Ashcroft suffered a wave of excruciating nausea and pain. Doctors diagnosed a potentially fatal case of gallstone pancreatitis. He was sedated and scheduled for surgery. With Ashcroft incapacitated, Comey was the acting attorney general and chief law enforcement officer of the United States.
Stellar Wind had to be reauthorized on March 11. Seven
days of struggle lay ahead, a tug-of-war between security and liberty. Mueller was “a great help to me over that week,” Comey said.
The FBI director met Vice President Cheney at the White House at noon on March 9. They stared at one another across the table in the corner office of the president’s chief of staff, Andrew Card. Cheney was adamant: no one had the right to challenge the president’s power. The spying would continue at his command. It would go on with or without the Justice Department’s approval.
“I could have a problem with that,” Mueller replied. His notes of the meeting say that he told the vice president that the FBI had to “review legality of continued participation in the program.”
On March 10, President Bush ordered Card and the White House counsel Alberto Gonzales to go to the intensive care unit at George Washington University Hospital, one mile northwest of the White House, and to get Ashcroft’s signature. An FBI security detail guarded Ashcroft’s room. He had come out of surgery the day before. He was in no condition to receive guests, much less sign secret presidential orders. The president called the hospital at 6:45 P.M. and insisted on talking to Ashcroft. His wife took the call.
The president told her that it was a matter of national security. She would not hand over the phone. The FBI agents had the presence of mind to alert Ashcroft’s chief of staff that the president’s men were on their way. He called Comey. The acting attorney general called Mueller, asking him to meet him at the hospital and bear witness to the confrontation.
They raced to the intensive care unit. Comey got there first. He walked into the darkened room and saw that Ashcroft was fading: “I immediately began speaking to him … and tried to see if he could focus on what was happening. And it wasn’t clear to me that he could. He seemed pretty bad off.” Comey stepped out into the hallway and called Mueller again. The director said he would be there in a few minutes. He wanted to speak with his agents. He ordered them to make sure that the president’s men did not throw the acting attorney general out of the hospital room.
The FBI agents recorded that Card and Gonzales entered at 7:35 P.M. Gonzales stood at the head of the bed holding a manila envelope with the presidential authorization inside. He told Ashcroft he wanted his signature.
Ashcroft lifted his head off his pillow. He refused. “In very strong terms,” he said the program was illegal; his argument was “rich in both substance and fact—which stunned me,” Comey said. Then Ashcroft laid down his head and said: “But that doesn’t matter, because I’m not the attorney general. There is the attorney general.” And then he pointed at Comey.
Mueller crossed paths with the president’s empty-handed emissaries as they stalked out. They were about to cross swords.
The president signed the authorization alone in the White House on the morning of March 11. It explicitly asserted that his powers as commander in chief overrode all other laws of the land. Mueller met with White House chief of staff Card at noon. His notes say that he told Card that “the WH was trying to do an end run” around the law.
Mueller drafted a letter of resignation by hand at 1:30 A.M. on March 12, 2004. “In the absence of clarification of the legality of the program from the Attorney General,” he wrote, “I am forced to withdraw the FBI from participation in the program. Further, should the President order the continuation of the FBI’s participation in the program, and in the absence of further legal advice from the AG, I would be constrained to resign as Director of the FBI.”
Seven hours later, Mueller went to the morning briefing with the president at the White House. It had been a busy night in the world of counterterrorism. In Madrid, Islamic jihadists claiming inspiration from al-Qaeda had set off ten bombs in four commuter trains. They killed 191 people and wounded 1,800, the worst terrorist attack in Europe since the bombing of Pan Am 103 over Lockerbie in 1988. The FBI was looking for links to the United States.
After the meeting, the president stood alone with Mueller in the Oval Office. Bush now realized that the FBI director, the attorney general, and his deputy were in rebellion. Mueller told Bush face-to-face that he would resign if the FBI was ordered to continue warrantless searches on Americans without an order from the Department of Justice. Mueller said he had an “independent obligation to the FBI and to DOJ to assure the legality of actions we undertook,” according to his recently declassified notes of the meeting. “A presidential order alone could not do that.”
Both men had sworn upon taking office to faithfully execute the laws of the United States. Only one still held to his oath.
The president pleaded ignorance of the law and the facts. He said he hadn’t known there had been legal problems with Stellar Wind. He said he hadn’t known Ashcroft had been in the hospital. He said he hadn’t known Mueller and Comey had been blowing the whistle. He was almost surely deceiving the director, and deliberately.
Without doubt he saw a political disaster at hand. “I had to make a big decision, and fast,” Bush wrote in his memoirs. “I thought about the Saturday Night Massacre in October 1973”—when Nixon defied the Justice Department over his secret tapes, forced the attorney general and his deputy to resign, and destroyed his presidential aura of power. “That was not a historical crisis I was eager to replicate. It wouldn’t give me much satisfaction to know I was right on the legal principles while my administration imploded and our key programs in the war on terror were exposed in the media.”
Bush promised to put the programs on a legal footing. This did not happen overnight. It took years. But based on the president’s promise, Mueller and his allies backed down from their threats to resign. Bush kept the secret for twenty more months. The man who first blew the whistle on the warrantless surveillance was a Justice Department lawyer named Thomas Tamm; his father and his uncle had been two of J. Edgar Hoover’s closest aides at headquarters. By the time the first facts were revealed in The New York Times, both Ashcroft and Comey had resigned from the Bush administration.
Mueller’s stand against the president stayed secret far longer. But Comey told a select audience at the National Security Agency what Mueller had heard from Bush and Cheney at the White House:
“If we don’t do this, people will die.” You can all supply your own this: “If we don’t collect this type of information,” or “If we don’t use this technique,” or “If we don’t extend this authority.” It is extraordinarily difficult to be the attorney standing in front of the freight train that is the need for this … It takes far more than a sharp legal mind to say “no” when it matters most. It takes moral character. It takes an ability to see the future. It takes an appreciation of the damage that will flow from an unjustified “yes.” It takes an understanding that, in the long run, intelligence under law is the only sustainable intelligence in this country.
Mueller testified in public before the 9/11 Commission one month later, on April 14, 2004, and he never breathed a word of what had happened at the White House. He never has.
“THE BEGINNINGS OF AN INTELLIGENCE SERVICE”
The commission and Congress accepted the director’s assurance that the FBI could safeguard both liberty and security. But they asked more from Mueller. They wanted to know that the FBI was using the full powers Congress had granted it under the Patriot Act of 2001.
It was, but not always well. On May 6, 2004, the FBI arrested an Oregon attorney, Brandon Mayfield, on a material witness warrant in connection with the Madrid bombings. He was an American citizen who had converted to Islam. The FBI had used every wiretapping and surveillance tool it had against Mayfield for seven weeks. The case rested on the FBI’s misreading of a fingerprint lifted from a plastic bag in Madrid. Spanish police had told the FBI legal attaché in Madrid that Mayfield was the wrong man. He was nonetheless arrested after that warning. The arrest led to two weeks of harsh imprisonment in solitary confinement before he was freed; he later won a formal apology and a $2 million settlement from the government.
The Patriot Act, written swiftly, in a state
of fear, had greatly expanded the force of national security letters, a tactic rarely used before 9/11. The letters commanded banks, credit bureaus, telephone companies, and Internet service providers to turn over records about their customers to the FBI. They also compelled the recipients to remain silent—they could tell no one, not even a lawyer. They had the combined power of a subpoena and a gag order. The FBI was sending out close to one thousand of these letters a week; more than half the targets were American citizens. FBI agents said they were indispensable investigative tools, the bread and butter of counterterrorism in the United States. But the letters, like warrantless wiretaps, were also a form of breaking and entering. An FBI supervisor could write them without a judge’s order or a prosecutor’s request.
By September 2004, federal judges were starting to find them unconstitutional. The courts struck down the provisions of the Patriot Act that gave the FBI those powers; Congress rewrote the law to preserve them. The Bureau now had to justify the gag order to a judge, but the letters continued.
The FBI’s counterterrorism agents also were abusing their power by creating “exigent letters”—emergency subpoenas for thousands of telephone records—without telling anyone at headquarters. An endless succession of assistant directors, deputies, and special agents in charge did not learn the rules or their roles. Mueller said: “We did not have a management system in place to assure that we were following the law.” He conceded that the Bureau had misused the Patriot Act to obtain intelligence.
The testimony that the 9/11 Commission heard left many of the commissioners thinking that the Bureau should be rebuilt. They seriously considered creating a new domestic intelligence service to supplant the FBI. Mueller fought a three-front battle with the commission, the Congress, and the White House to keep the Bureau from becoming a house divided, with law enforcement on one side and intelligence on the other. The struggle went on every day through the summer and fall of 2004, and into the next year.
