This is a legal fiction. Pakistan acknowledges the CIA’s drone program. The president has joked about it. Leon Panetta, as the Secretary of Defense, joked about how he missed the drone tools he had available as CIA director. The CIA talks to journalists “on background” about the drone program. Former CIA officials, like general counsel John Rizzo, have described it in detail.15 The enemy knows. But technically, the program is classified at the Top Secret level.
And that makes levelheaded people like Mike Rogers, the chairman of the House Permanent Select Committee on Intelligence, do weird things, like tell an audience of policy professionals at the Woodrow Wilson Center in Washington, D.C., in September 2011 that the “Title 10” “airstrike program” was a vital tool of national security. Title 10 activities are military activities; “airstrike” implies a manned airplane. Yes, the Air Force had a drone program too, but the question wasn’t about that, and he knew it. He had been asked about the CIA’s drone program, but technically he would be disclosing classified information if he even acknowledged the antecedent of the moderator’s question.
So even if there is a legal distinction between what’s known and what’s confirmed, Wizner contends, with some consternation, that there is no material difference. His conclusion: “This legal fiction is essential to ensuring that no one from the CIA or NSA will ever face prosecution for lawbreaking. So long as courts honor the distinction between what is known (and can be proven!) on the one hand, and what is confirmed on the other, the intelligence agencies will hold the keys to their own immunity.” And Wizner, by the account of those who assert the privilege, is correct.
Obama will be forever lonely in his position. He may see himself as a civil libertarian, but so long as the only possible government argument to the public about state secrets cases is “trust me,” civil libertarians will not claim him. Interest groups generally determine the reference points in debates like these. The American public was highly polarized even before September 11, 2001. (How many Democratic activists really believed that President Bush had been legitimately elected in 2000?) And many Republicans spent that decade politicizing terrorism in order to scare people for political gain. The following decade saw Democrats “spiking the football.” A second civil war of hyperpartisanship predated the Obama presidency, and continues to be waged during it.16
∗Technically, “warrants” are not required; court orders are.
∗One prominent critic of Obama, Glenn Greenwald, was never convinced that Obama would be the beacon of hope that some of his fellow liberals thought he would.
∗In the 1980s, New Zealand essentially broke the ANZUS defense treaty with the United States by banning nuclear weapons in the region (and consequently, a large part of the U.S. Navy). As part of a larger response, the United States withheld UK-USA imagery intelligence from New Zealand until very recently. According to a diplomatic cable released by WikiLeaks, intelligence sharing has been “fully restored.”
†A remarkably comprehensive description of the meshing of the NSA and GCHQ can be found in the testimony of former GCHQ chief David Pepper to the United Kingdom’s commission investigating Iraq War intelligence.
∗In 2008, ABC News reported on the case of David Murfee Faulk, a U.S. Army soldier who worked at an NSA satellite in Georgia. Faulk told ABC News that he had seen evidence that the United States was collecting information about then British prime minister Tony Blair. This accusation triggered denials from all parties, all around. The CIA’s spokesman called it “utterly absurd” and rejected “any notion that the CIA spies on the British government.”
∗Interview with Matthew Miller, former spokesman for Holder.
Notes
1. U.S. Attorney’s Office, District of Oregon, “U.S. Branch of Al-Haramain Islamic Foundation and Two Officers Indicted for Conspiring to Defraud U.S. Government,” February 17, 2005, http://www.justice.gov/usao/or/PressReleases/20050217_al_haramain.htm; Department of the Treasury, Office of Foreign Assets Control, Specially Designated Nationals and Blocked Persons List, September 22, 2011, http://www.treasury.gov/ofac/downloads/t11sdn.pdf.
2. American Civil Liberties Union, “ACLU v. NSA: The Challenge to Illegal Spying,” http://www.aclu.org/national-security/aclu-v-nsa-challenge-illegal-spying.
3. Bobby Chesney, “State Secrets and the Limits of National Security Litigation,” Selected Works, August 2007, http://works.bepress.com/cgi/viewcontent.cgi?article=1001&context=robert_chesney.
4. Ibid.
5. Jerry Markon, Lawsuit against CIA Is Dismissed, May 19, 2006, Washington Post, http://www.washingtonpost.com/wp-dyn/content/article/2006/05/18/AR2006051802107.html. See also El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007), cert. denied, No. 06-1613, 2007 WL. 1646914 (U.S. Oct. 9, 2007).
6. Interviews with three former national security officials; interview with Greg Stone, University of Chicago law professor and friend of President Obama.
7. United States Court of Appeals for the Ninth Circuit, No. 08-15693, Mohamed v. Jeppesen Dataplan, Opinion, September 8, 2010, http://www.ca9.uscourts.gov/datastore/opinions/2010/09/07/08-15693.pdf; interview with Holder aide.
8. President Barack Obama, “Ten Questions: Warrantless Wiretaps, Video,” August 1, 2007, http://www.youtube.com/watch?v=B6fnfVJzZT4.
9. John Schwartz, “Obama Backs Off a Reversal on Secrets,” New York Times, February 10, 2009, A12.
10. Glenn Greenwald, Obama’s Efforts to Block a Judicial Ruling on Bush’s Illegal Eavesdropping, Salon, February 28, 2009, http://www.salon.com/2009/02/28/al_haramain_3/.
11. Interview with Frank Blanco, former executive director, NSA and U.S. representative to the Five Eyes treaty board.
12. John Bingham, “Hillary Clinton Made Security Help ‘Threat’ to David Miliband over Binyam Mohamed Case,” The Telegraph, July 29, 2009, http://www.telegraph.co.uk/news/uknews/law-and-order/5934016/Hillary-Clinton-made-security-help-threat-to-David-Miliband-over-Binyam-Mohamed-case.html.
13. https://www.eff.org/node/57955. The case is compelling. For a full list of all the transcripts, motions and related documents, see https://www.eff.org/cases/al-haramain.
14. For a full account of their rivalry on national security matters, see Klaidman, Daniel, Kill or Capture: The War on Terror and the Soul of Obama’s Presidency (New York: Houghton Mifflin Harcourt, 2012).
15. Tara Mckelvey, “Inside the Killing Machine,” Daily Beast, February 13, 2011, http://www.thedailybeast.com/newsweek/2011/02/13/inside-the-killing-machine.html.
16. Ronald Brownstein, The Second Civil War: How Extreme Partisanship Has Paralyzed Washington and Polarized America (New York: Penguin Press, 2007), 20.
CHAPTER 17
The Flicker of a Piercing Eye
In the early part of 2000, the National Security Agency was “up” on a known al-Qaeda safe house in Yemen. It had intercepted cell phone calls between a known terrorist and persons unknown in San Diego. Because the conversations were not themselves evidence of terrorist plots, and because the identities and locations of the persons inside the United States were not known, the NSA did not have the probable cause necessary to seek a Foreign Intelligence Surveillance Act (FISA) warrant. (Had the other numbers been known, the FBI could easily have figured out who these guys were. But the collection platform in Yemen was acoustic and not electronic; the NSA had no data about the target cell number.)
Then 9/11 happened.
The calls in question went to two of the airliner hijackers living in San Diego. As Lieutenant General Michael Hayden, director of the NSA, would explain to President George W. Bush and his cabinet, it was unconscionable that he lacked the authority to ask a telecom for the transactional records associated with the numbers in question. He could have connected the dots, but FISA was being interpreted in such a way that kept his hands tied. As a practical matter, telecoms were all but off-limits, and time was of the essence.
In the aftermath of 9/11, Hayden and other American officials believed, with good reason, that fur
ther attacks were planned. Hayden could help find those missing dots—the U.S.-based ends of telephone conversations emanating from Yemen, Afghanistan, and Somalia—but he would need to do things he hadn’t done before. Things that didn’t necessarily track with FISA. He would need to be able to proactively monitor the outgoing calls of people inside the United States—possibly even citizens—who regularly made foreign calls to “dirty numbers” or confirmed terrorist targets.1
He needed transactional records from the telecoms so that he could immediately identify who was on the other end of the telephone call or who was the recipient of an e-mail. Noting that the two San Diego terrorists changed their cell numbers frequently and regularly opened new e-mail accounts, Hayden needed access to credit records and bills that would tie one person to a series of communications transactions. And he needed to be able to see the calling circles of those called by the U.S-based persons. He needed a way to know, instantly, when one of those persons received or made a call associated with terrorism to a number outside the United States or to an e-mail associated with jihadists. And he needed to find a way to do all of this without intercepting the telephone and web traffic of innocent Americans.
Hayden would get what he needed. (It helped that Vice President Dick Cheney; his chief of staff David Addington; and William Haynes, the Pentagon’s top lawyer, had already identified the NSA’s collection problems as a major obstacle to find extant al-Qaeda cells inside the United States.)2 But as Hayden later described it, the President’s Surveillance Program was simply a gap-filler, albeit a crucial one that would allow the government to thwart terrorists before they could act.
The NSA is the largest factory of secrets in the world. Instead of giant brick chimneys billowing out smoke, the NSA works from a colossal mirrored-glass building at Fort Meade, Maryland, where it collects the world’s digital detritus, refines it into a digestible product, and sends it to policymakers for consumption. For sixty years, the NSA has turned whispers into shouts. It is the anchor of the deep state.
What older Americans know about the NSA was gathered from a different era in American espionage, when the intelligence community was more pliant to the oftentimes nefarious whims of politicians. The NSA followed directives to spy on U.S. citizens. Younger Americans, on the other hand, often view the agency through a cinematic lens. At the NSA, they called it the “Enemy of the State problem”—a reference to the 1998 movie portraying the agency as an amoral panopticon able to follow anyone anywhere. (Not a few NSA managers at the time saw the movie and privately thought, “If only!”)
For many years, it did not matter how the NSA was portrayed in the media.3 Congress willingly funded its ambitious projects and asked few questions. Then came the end of the Cold War and an era of relative peace. The president no longer depended on intelligence collected by the NSA. Furthermore, the way signals traversed the earth changed as telecommunications shifted from satellites to fiber and the global communications infrastructure exploded in size.
At the dawn of the millennium and the height of the dot-com boom, the NSA faced a budget crunch; its technological capabilities could no longer keep pace, and its mission seemed less relevant.4 Policy entrepreneurs in Congress, to include then representative Porter Goss, a former CIA case officer who would later serve as director of central intelligence, wanted to siphon money from the NSA for their own pet intelligence projects. In a private meeting before Hayden was sworn in, he told the incoming director that the NSA had a “reputation problem.”5
When Hayden, a bracing and admired U.S. Air Force general, became the NSA’s director in 1999, he tried to show some leg. Greater openness, he suspected, would lessen anxiety about the agency and maybe even generate positive publicity, which would feed back into Congress’s perception of the NSA. With his general counsel, Robert Deitz, he set up SIGINT 101—a class for reporters who covered the agency, which included trips to NSA labs and even a brief chance to put on the headphones and hear what an intercept sounded like. General Hayden cooperated with author James Bamford—who theretofore had written the only contemporary history of the NSA—on a second book.6 He made himself accessible to reporters, hosting dinners at his home. He even joked about the agency’s alleged prowess. “Despite what you’ve seen on television,” he told college students in 2000, “our agency doesn’t do alien autopsies, track the location of your automobile by satellite, nor do we have a squad of assassins.”7
The agency—once the closest held secret in the United States, if not the world—even established an official children’s website called CryptoKids, for “America’s future codemakers and codebreakers.”8 Hayden knew how to work the system. Like J. Edgar Hoover and Walter Bedell Smith a generation removed, he recognized that it really did matter what the newspapers printed about secret agencies, and he was determined to put the NSA on solid footing. His strategy worked, something for which even his fiercest detractors give him credit.
Politically, Hayden had no doctrine but Goldwater-Nichols: the civilians proposed and he disposed. He followed the law and followed orders. That may be why he had no problem with secrecy—even the “weird secrecy,” in the words of David Kris, former associate deputy attorney general for national security issues.9 Part of that weird secrecy included what would become known as the Terrorist Surveillance Program (TSP), one of the larger sets of secret surveillance activities authorized by President Bush in the weeks following the September 11, 2001, attacks. (We will refer to these activities as the “special programs” to distinguish them from regular NSA signals intelligence collection and analysis.)
After 9/11, in an effort to build a virtual fence around the country, the NSA deliberately began collecting certain types of data generated by U.S. citizens and tapping directly into the vein of communications that originated in the United States. It did so with the tacit, uneasy, and provisional approval of Congress—or rather, of the small fraction of congressional leaders given early briefings about it. Members of the judiciary were also involved; the two Foreign Intelligence Surveillance Court (FISC) chief judges who were “read in” to the program also did not object.
After it was partially exposed by the New York Times in 2005, a consistent number of polls suggest a majority of Americans believe that the program—to the extent that they know about it—was right. In keeping with the implicit bargain, Americans give their presidents wide latitude to do secret things so long as their security is enhanced and their blood is not shed. So maybe we shouldn’t talk about it all. Where’s the right to keep digging?
For one thing, an accurate accounting of the special programs—extraordinary extensions of executive power, and something that Hayden described to Congress during their initial briefing as “very, very different” from what the NSA had been doing before—has never been published in an unclassified format, so far as we can tell. But plenty of current and former government officials—in congressional testimony, in official reports, and in published and broadcast interviews—have described parts of the program that technically remain a secret. The information is already out there, and a jumble of data points exist for anyone with a bit of time to put together. It’s not that hard to simply (and correctly) guess what the special programs were (when they were first authorized by President Bush), and what they are now (formalized under FISA). Confusion and mythology may have helped the government keep its secret, but they have not helped the NSA repair the damage its reputation sustained in the breathless aftermath of the New York Times piece.
Though Americans cede great authority to the president during wartime, they become more skeptical of that authority as the war recedes from view. Accepting the general premise that the president ought to be allowed to listen to conversations between one person in the United States and one person overseas where one party has a probable connection to terrorism is one thing. Accepting that a computer is sifting through an ocean of phone records to try and connect dots—and, oh, your phone records might be in that data set—is another. Accep
ting that the laws permitting this were interpreted and reinterpreted in secret (and for the most part still are) is even harder. As the fine teeth of the NSA’s combs move closer to your data—the telephone numbers you dial, the e-mail addresses you use—the more nervous you are, especially if you don’t know what the NSA is doing with them. In the future, Americans will be asked to allow the NSA to sift through the Internet traffic they generate solely to detect and mitigate the threat of massive cyber attacks.
The NSA’s collection activities increasingly overlap with the digital detritus that Americans generate. For that reason alone it is worth the effort to put together an accurate account of what the agency does when no one is looking. The NSA has a story to tell and an argument to make. So do critics of its role. In the case of the special programs, excessive secrecy has contributed to several fundamental misunderstandings that undermine any debate about what the NSA’s role ought to be.
Secrecy allowed the special programs to exist when they were absolutely crucial—in the days after September 11, 2001, when the government had lots of information but was legally restricted from assembling the toolkit to deduce if even greater terrorist attacks were forthcoming. At the same time, the type of secrecy bolted around these programs—exceeding even the extremely high level of secrecy that accompanies regular NSA activities—undermined the special program’s efficacy and legitimacy. At various junctures, the motivation to keep the program so secretive provided the main justification for decisions about how best to modify it, and even which laws would serve as its basis.
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