by Shane Harris
This would be the new watch phrase. The analysts would have to study up on Al Qaeda and other terrorist groups, learn their calling and e-mailing patterns, and their code words, to determine whether that nexus was real or if the call they were tapping was entirely benign. The same went for e-mails. The analysts would have to read the messages to determine whether it contained potential intelligence or something useless—a fruitcake recipe, a lame joke, a chain letter. But after digging into the phone call or the message, if the analysts determined that the communicant in San Francisco was in the terrorist nexus, then the NSA could begin targeting him directly, without a warrant. That was the major new change. Such surveillance was supposed to require a warrant under the Foreign Intelligence Surveillance Act, the 1978 law enacted to prevent unchecked domestic spying. But the president had determined that if anyone in the United States was in contact with known or suspected terrorists, then they too could reasonably be suspected of involvement in terrorism. The agency could start monitoring that person’s phone number, or his e-mail account, in order to find out whom else he was in touch with. And then whom those targets were talking to and e-mailing. And on and on and on, until the agency had a map of what this global nexus of terrorism really looked like, and where it touched the United States.
The employees listening to Hayden could have been forgiven if they swore they’d felt the ground moving beneath them. This was a seismic shift—in law, in policy, in culture. Hayden was saying that the president had just given the NSA permission to go on the offense against terrorists. And on a new playing field—the United States. Only one category of communications was off-limits: those conducted entirely within the country. If the target in San Francisco called someone in Brooklyn, the agency could not monitor without a warrant from the judges on the FISA court—which, if the target in San Francisco really was a suspected terrorist, would not be hard to get.
The agency’s global monitoring system certainly had the technological capacity for this new play. It snatched satellite transmissions out of the air, gobbled up overseas phone calls and faxes as they traversed massive undersea cables, snooped on military communications and diplomatic correspondences. If it traveled on a wire, a fiber-optic cable, or on a wave through the air, the NSA could grab it. But this new monitoring would require significant assistance from the companies that controlled the telecommunications system. Fortunately, because of the midnineties surveillance law that required those companies to build equipment that could be monitored, the new targeting procedures could be implemented rather easily. The NSA would soon tell the phone companies to load targeted phone numbers and e-mails into the international gateways through which all foreign traffic entered the United States, and from which U.S. communications were routed onto foreign destinations. Tracking suspected terrorists would be as straightforward as waiting to see when the number in Pakistan made or received a call. The telecom companies could also be accommodating in other ways. International gateways could be created if a phone company or Internet service provider rerouted traffic through a “point of presence” in the United States, a physical location with access to a network. That point of presence needn’t be at the company’s offices. If the company was willing to assist, it could also reside in a government facility.
Wertheimer had spent his career at the agency. Like every employee, he received training in the tenets of privacy and surveillance law that controlled the NSA’s spying activities. And every refresher course reminded him that the laws governing what the intelligence community did with U.S. persons information were criminal statutes. People went to jail for breaking them. Congress had not changed these laws in the past three weeks. The authority to recalibrate the NSA’s electronic sights had come from the president. There was no higher authority.
“We’re going to do exactly what he said,” Hayden told his staff, referring to Bush. “Not one photon or one electron more.”
To Wertheimer, it seemed like the right thing to do. At least for now. Just how long the agency would be able to stay within the boundaries of the president’s admonition no one could say. But as far as Hayden was concerned, he was going to play right up to the line until someone told him to stand down. For years he had lingered in the backfield, and clearly to his peril. The country had been attacked on his watch. He wouldn’t let it happen again. As Hayden would say more than once in the months and years to come, “I will play in fair territory. But there will be chalk dust on my cleats.”
On the morning of 9/11, Hayden had been working for two hours already when news reached him that a plane had struck the North Tower. Security procedures at the NSA were tighter than at most agencies, and almost immediately submachine gun-toting guards and bomb-sniffing dogs fanned out across the vast Maryland campus. As the other planes struck their targets, Hayden ordered all nonessential workers to evacuate the grounds. He called his wife, Jeanine, asked her to find their three children, and headed to the counterterrorism center, home to the signals experts and linguists who tracked Al Qaeda’s foreign communications. Hayden knew that the chatter level had been high lately, and now he could see why.
The center’s offices were located near the top floor of a high-rise. Hayden had tried to move as many employees as possible out of these vulnerable buildings. But he couldn’t let the counterterrorism center stand down now. When he arrived, he found staffers crying, and yet defiantly hanging blackout curtains over their windows, a wartime measure to mask their location from future attackers.
The attacks were personal for the staff and for Hayden. In his two and a half years as director he had devoted extraordinary amounts of time and personal political capital to burnishing the agency’s image. He defied the popular conception of the NSA as a stealthy, all-knowing, and conspiratorial government organ, so secret that employees joked its acronym stood for “no such agency.” The image popularized in Hollywood productions like Enemy of the State, which premiered the year before Hayden took over, had made the agency seem stronger and more independent than it really was. Hayden wanted to educate the public about what his staff did every day. He courted outsiders. He spoke candidly about global eavesdropping. He invited journalists to the agency’s annual holiday party. And most important, he nurtured personal relationships with his key overseers on Capitol Hill.
Hayden’s public relations had spooked a lot of the NSA lifers. This was not business as usual. But his dedication to their mission, and to their protection, was indisputable. His employees could trust that the boss had their back, as surely as he covered his own.
In a town full of self-promoters, Hayden had mastered that delicate art better than most. He possessed the requisite cunning for a high-level existence in Washington, but also the chops, a rare combination. In a twenty-one-year military career he’d held a series of increasingly demanding intelligence jobs, most bearing titles that began with “director” and “chief.” Hayden was a born manager. He had survived, and excelled, by exhorting people to follow his lead.
Hayden was an unlikely public face for a secretive spy agency. He looked shady. With his shiny bald head, wire glasses, and hooded eyes, he bore an uncanny resemblance to the character actor Kurtwood Smith, who played the villain in Robocop and a double-crossing FBI agent on The X-Files. But Hayden played against type. He was charming. Ebullient. He was as polite and deferential to journalists as to members of Congress. It worked. Hayden turned the agency’s image around and was without question its most vocal supporter.
In the first day’s after the 9/11 attacks, Hayden hadn’t waited for permission to act. While the agency had held off from any kind of domestic mission in the past, the fact was, Hayden had a number of arrows in his quiver that he had yet to use.
Immediately after the attacks he ordered the agency to “go up on,” or monitor, a set of hot targets, foreign entities that the agency believed were connected to terrorism. Hayden didn’t wait for a court order to do this. Just how broad that target set was remained a closely held secret. But ev
en if the targets turned out to have connections inside the United States, the NSA would not shut down its surveillance. Hayden wasn’t out on a limb here. Under the banner of a twenty-year-old executive order, enacted by Ronald Reagan, the NSA was authorized to collect, retain, and disseminate foreign intelligence as part of a terrorism investigation. Clearly, one was afoot.
Hayden broadened the reach of his signals-gathering agency in those first days after 9/11. The surveillance extended not just to those foreign targets but to the individuals they were communicating with inside the United States.
As Hayden’s monitors listened, they did something else extraordinary: They handed over leads about potential targets inside the country to the FBI. Hayden flooded law enforcement agents with anything that might lead to a sleeper cell or help detect a future attack. Again, that same presidential order covered him. Executive order 12333 (or “twelve triple three,” as it was known in the trade) was the intelligence community’s set of operating authorities. Their playbook. Some believed that Reagan had issued it as a kind of counterweight to the Foreign Intelligence Surveillance Act, which the president and some of his national security aides saw as a blatant attempt by Congress to interfere with the spy agencies. Hayden, ever the lover of football metaphors, had now turned to the order as a source of new offensive tactics, and well before the current president gave him a new set of rules.
In the course of this immediate post-9/11 surveillance, U.S. persons—which included citizens and legal residents—were being caught up in the NSA’s electronic nets. These were the people in communication with those hot targets already on the agency’s radar. But the agency’s terrorist hunters could not know whether that secondary ring was composed of conspirators or incidental bystanders in the hot targets’ communications chain. Were they bomb makers or pizza deliverers?
The FBI agents who received the tips were often unsure, but it was their job to run those leads to ground. And the leads piled up quickly. As agents fanned out around the country, they were unaware of how the information in their hands had been obtained. Even in an emergency, the NSA assiduously guarded its sources and methods.
While the FBI agents were equally concerned with finding the next terrorist cell, they had their own careers to worry about. If the NSA had captured these communications illegally, they might be unavailable to federal prosecutors hoping to build cases against terrorism suspects. A judge could dismiss them as fruit of a poisonous tree. What’s more, if the agents themselves were seen as complicit in illegal spying, they could be prosecuted. These were criminal statutes, after all, something the cops at the FBI knew as well as their cousins in the spy world.
It might have seemed like the NSA had crossed a threshold. Here was Hayden, rushing the field in a moment of crisis. But even this bold play was insufficient. As Hayden laced up his cleats, he knew that if he really wanted to score, he’d need a whole new strategy.
As Hayden saw it, all these hot communications constituted foreign intelligence. If a terrorist in Islamabad called someone in Brooklyn, that was an international phone call. And it was the NSA’s job, legally, to collect such foreign intelligence. Had the agency turned its monitors loose solely on American citizens, or started tracking their constitutionally protected political activities, Hayden likely would have turned himself in, handcuffs already affixed. But by his reading he was adjusting the scope of the NSA’s collection, not changing the rules governing it.
Nancy Pelosi, the top Democrat on the House Intelligence Committee, wasn’t so sure. On October 1, Hayden briefed the California congresswoman and the full committee on what the NSA had been doing over the past few weeks to prevent another attack. Hayden brought up Executive order 12333. Pelosi and the other members knew it well. But 12333 was an order, not a law. Only Congress wrote those.
The same was true for the litany of regulations and operating procedures that had trickled down from 12333 over the years. They couldn’t trump legislation—especially the Foreign Intelligence Surveillance Act. Congress had meant that law to be the exclusive means by which intelligence collection inside America was authorized and controlled. It was the same kind of collection that Hayden was engaged in now.
Hayden knew that FISA warrants weren’t handed out freely. They required thick sets of paperwork accompanied by sworn statements from lawyers at the Justice Department. And if said officials thought that a surveillance request didn’t meet the muster of the law, they would never argue for it in front of a judge. To do so imperiled their career, maybe even their ability to practice law.
But most of the NSA’s activities weren’t covered by FISA. The agency’s surveillances were directed overseas and usually against foreigners. It wasn’t unusual for the NSA to scoop up the communications of some protected Americans in the course of monitoring foreign targets, but when that happened the agency replaced their names in its reports with anonymous markers such as “U.S. Person 1.” This privacy protection, known as minimization, kept the NSA from incriminating presumably innocent people. And as long as the NSA was fighting foreign wars, that worked just fine.
Congress and the intelligence community both understood FISA. But their interpretations differed markedly. Some of the authors of Reagan’s executive order saw it as a marker against Congress after it passed the surveillance law. They saw FISA as an unjust limitation on the president’s inherent authority to collect foreign intelligence. The lawyers at the NSA saw 12333, not FISA, as their agency’s marching order. (After all, the NSA didn’t routinely spy on Americans, and so the law bore less day-to-day relevance to their operations.)
As Pelosi and her colleagues listened to Hayden talk about the NSA’s new counterterrorism activities it was unclear whether what Hayden authorized after 9/11 was permissible, or whether it fell into some murky gap between a law and an order. Pelosi was concerned that Hayden had crossed a line. Whether that was true would not be resolved during his appearance on the Hill.
After the briefing wrapped up, Pelosi thought about what Hayden had said. She still wasn’t sure she understood, or agreed, that he had the authorities to expand his agency’s mission. She told her staff to do some digging.
What little they could pry out of the administration, which had clamped down on the flow of national security information to Congress, didn’t satisfy Pelosi. She wasn’t sure if Hayden needed, or had obtained, specific authorization from the current president to conduct these new activities. Hayden had a difficult case to make, she thought.
Hayden seemed to agree. Not long after the attacks, George Tenet made the rounds to the various intelligence agency chiefs, and he asked Hayden a question: “Is there anything more you can do?”
“Not within my current authorities,” Hayden replied.
Hayden had in mind a far more aggressive role for his agency, and one that mirrored the plan Poindexter was hatching at precisely the same time. Hayden wanted to build an early-warning system for terrorist attacks.
He knew as well as Poindexter, as well as anyone, that the keys to terrorist planning lay in their electronic transmissions. So it was before 9/11; so it was before the Beirut bombing. And he knew that law, policy, and culture had impeded his efforts in the past. But technology was not one of his big problems. In fact, it could save him.
Well before the attacks, Hayden understood his agency was still collecting intelligence with a cold war mind-set. So he tasked a team of senior managers, including Wertheimer and another NSA lifer named Maureen Baginski, to reshape signals intelligence for the digital age. They put a premium on analysis, and on targeting the right sources of intelligence, instead of on just vacuuming up as much information as the agency’s computers could stomach. Baginski liked to call it “hunt, not gather,” and that mantra was reflected in the agency Hayden was trying to build.
By the time terrorists invaded America, the NSA had come a long way. In October 2001, when CIA and military forces deployed to Afghanistan to hunt Al Qaeda leaders, Wertheimer and Baginski had so impr
oved the agency’s global tracking systems that the NSA could identify human targets for soldiers and airmen in the theater, telling their precise location within a few yards. The agency had learned to find people through their communications devices, and through the signals they emitted and the traces they left. Hayden understood the power of this technology—conceivably, the NSA could have more awareness about terrorists than they had of themselves.
But to accomplish that feat the NSA would have to collect more—a lot more—in places that had traditionally been out of bounds.
Tenet asked Hayden to brief Bush administration officials, including the president and vice president, on what more he needed, and wanted. Hayden explained that any effective system for spotting terrorists before they struck had to meet three criteria: It must be technologically feasible. It must produce useful intelligence. And it must be lawful. Hayden spoke to the first two elements; but he left the last for others to decide.
Technology was the part Hayden knew best. Since the attacks the NSA had been tracking suspected terrorists using the traditional model, starting with a known target and then branching out through their associates. This was not pattern analysis, like what Poindexter wanted to pursue, at least not in the purest sense. Hayden’s electronic sleuths might start to notice suspicious indicators in the way terrorists used phones—maybe they used intermediaries or limited their calls to under a certain number of minutes. But this wasn’t the start-from-scratch concept behind TIA, in which a system would ingest every piece of data and look for patterns in it without known targets. At least not yet.
