The Watchers

by Shane Harris

  McConnell might have flubbed his lines, but he’d played his part, to the surprise of some colleagues in the administration. At the FBI and the White House some senior officials viewed him as a terrible choice for FISA point man. Based on their conversations, and their review of his speeches and opeds, he seemed not to appreciate the difference between foreign and domestic surveillance. They also thought that his critique of FISA was imprecise and incautious. Those who really knew the law backward and forward were unnerved when the White House had put McConnell out there in such a politically charged atmosphere. The administration had done it in part because McConnell was seen as a nonpartisan professional. But he’d handled this delicate task without the tact and aplomb it required. When the Protect America Act came up for renegotiation in six months, who knew whether the Democrats would be so pliant?

  Still, even his detractors had to acknowledge that McConnell had gotten the job done. The new law gave the administration exactly what it wanted, and from McConnell’s perspective, exactly what the intelligence community needed to keep the country safe. He was convinced that it would also protect Americans’ privacy and their civil liberties. The rule of law had finally been restored. His principles were assured.

  McConnell was a firm believer in the internal culture of the intelligence community, the overlapping layers of regulations and protocols that kept employees honest. That system had failed in the past, he knew. But more often, it seemed to work. People knew right from wrong.

  Perhaps McConnell’s biggest victory was forcing Congress to admit something he’d been saying for years: Technology was not an unalloyed good. The nation’s enemies had turned it into a weapon. He knew that. John Poindexter knew that. All the Watchers knew, and so did the administration. Now the Congress did too.

  McConnell’s community had been given an extraordinary power. To decide whom to watch and to record, whose information to process and to store away in secret. And then, maybe one day, they might decide whom to hunt. With that power came an awesome responsibility: to ensure that the system wasn’t turned against those it had been set up to serve. This was the responsibility to protect. For the intelligence community, it had always been a balancing act. But never before had the scales been so tilted in its favor.

  In the coming months McConnell would be judged again. And for all his perceived deceits, for all the missteps and missed opportunities, he would win. But this time he’d have a surprising ally—a young, liberal senator from Illinois with more ambition than the halls of Congress could hold.

  CHAPTER 30

  RENEGADE

  Senator Barack Obama faced an easy vote. It was February 12, 2008, and his chamber was about to take up the hotly debated question of whether telecom companies that assisted the NSA in warrantless surveillance should be exempt from civil lawsuits. Obama was firmly opposed to any grants of legal immunity. On that score he had sided with a vocal and increasingly influential base of political supporters known as the “Netroots.” They were an online community of sorts, a federation of technology-savvy activists and bloggers that had grown up in opposition to the Iraq war. They regarded the NSA program as the epitome of the Bush administration’s excesses in the war on terror and had astutely calculated that the administration would use claims of state secrets to stymie lawsuits against the government. Suing the companies instead offered some hope of legal accountability for the NSA’s spying.

  The Netroots reflected the heart of Obama’s presidential campaign, which was organized over the Internet and relied upon the collective muscle of millions of individual supporters and their donations. The Netroots had moved their support to Obama after their favored candidate, Senator John Edwards, dropped out of the presidential race in January 2008. At the time, Obama had faced only one substantial piece of national security legislation—the Protect America Act, which he’d voted against back in August.

  As the law’s sunset date approached, telecom immunity had become a roadblock to further negotiations. Democrats understood that the civil lawsuits might be their only chance to pry more information about the NSA’s surveillance program from the administration, which had steadfastly resisted lawmakers’ attempts to obtain Justice Department documents supporting the program’s legal rationale. The two sides were locked in a classic Washington pissing contest.

  Unlike during the previous summer, Democratic lawmakers in the House were ready to make a stand now. They would let the Protect America Act expire rather than enshrine immunity protection in any new law. They hedged their bets, figuring that the administration would either compromise or sweat them out, in which case they’d hope that a Democrat won election in November. That future president might be more forthcoming with intelligence secrets. Obama sided with his fellow party members, but then he upped the ante. He promised to filibuster any bill that included retroactive immunity for telecom companies. The Netroots, joined by prominent liberal activist groups like MoveOn.org, had rejoiced at these barricade heroics. Obama’s uncompromising opposition to immunity lifted him in their esteem, and it burnished his anti-Bush bona fides among the liberal base of the Democratic Party that Obama had to win if he hoped to occupy the White House.

  When the Senate waded into the controversy that Tuesday morning in February, Obama’s vote was a given. Before lawmakers took up the final bill to replace the Protect America Act, they voted on whether immunity should be a part of it. Obama voted to remove the protections for telecom companies. That put him at odds with the majority of his colleagues, who voted in favor of the provision. The stage was set for a dramatic finish in the House as senators moved on to the full bill.

  On that vote, Obama’s opposition was also a given. The changes that this new bill proposed for FISA were extraordinary. Just like the Protect America Act, it dramatically expanded the government’s surveillance authorities, allowing the intelligence agencies to obtain blanket warrants to monitor entire groups of suspected foreign terrorists and other people whom the government deemed a threat to national security. Americans’ phone calls and e-mails undoubtedly would be caught up in the electronic dragnet. Meanwhile, the administration assured skeptics that procedures were in place to protect Americans’ identities and to keep anyone involved in “incidental collection” from being unjustly targeted. None of the official talking points had changed.

  Voting on the bill opened. But when Obama’s turn came, he didn’t cast a vote at all. The presidential candidate had left Capitol Hill and hit the campaign trail. Later in the day his aides issued a statement of resolve, saying Obama was proud to stand with “a grassroots movement of Americans who are refusing to let President Bush put protections for special interests ahead of our security and our liberty.”

  Why had he changed his mind? That wasn’t immediately clear. The most obvious reason was a new Republican TV ad launched in the days leading up to the vote. “The terrorist threat to America never expires,” a narrator intoned ominously. The spot was reminiscent of the “daisy” ad of the 1960s, which featured a countdown to a nuclear explosion followed by a mushroom cloud. This new ad was aimed directly at Obama and his rival for the Democratic nomination, Senator Hillary Clinton. It warned that if they and their Democratic colleagues allowed the Protect America Act to expire, it would “open a critical gap in our intelligence capabilities.” The language could have come straight out of Mike McConnell’s press releases. The party of the president, who had once found FISA so cumbersome, now claimed that the law had “become vital to our national security.” Democrats were holding up the works, the ad alleged, “siding with trial lawyers” who wanted to sue telecom companies that faithfully helped the government look for terrorists.

  McConnell’s push had paid off. Passage of a new surveillance law had once again been directly linked to the prevention of terrorism. The Republicans had their opponents in the corner, as was true the previous summer.

  Or so it seemed. The Senate passed the bill, but the House called the administration’s bluff. Members
adjourned for recess and let the Protect America Act expire. It was a rare display of partisan resolve and political gamesmanship. The Democrats had actually held the line. Lawmakers said they’d get to work on a replacement when they returned to Washington, and they reminded their colleagues that surveillance begun under the law actually lasted for one year. There was no rush to fix FISA.

  The immunity debate raged. Republicans accused Democrats of weakness. Democrats countered that their opponents were fearmongering. As the predictable drama played out, Obama appeared unmoved. But inside his campaign the candidate’s top intelligence adviser was questioning the wisdom—and the basic fairness—of Obama’s opposition to immunity. A few weeks after the Senate vote, he went public with those concerns, and put a crack in the candidate’s hitherto unyielding resolve.

  John Brennan was a CIA lifer, and he’d spent much of his career on the front lines of the terror war. He first came to the Middle East as a student in 1975. He spent two semesters at American University in Cairo, and four years later he entered the clandestine service. Brennan spoke passable Arabic and, in the late 1990s, became the agency’s station chief in Riyadh, Saudi Arabia. On his watch, terrorists bombed the Khobar Towers, an eight-story building that the Air Force used as a dormitory. Nineteen service members died in an attack reminiscent of the suicide bombing in Beirut.

  A year and a half after the 9/11 attacks CIA director George Tenet personally assigned Brennan to a new job—heading up a counterterrorism center that “fused” intelligence on terrorist plots with information obtained from other sources, including news reports. The Terrorist Threat Integration Center was to be a hub for information from across government, a model that John Poindexter had envisioned when he first set up communications channels with the intelligence community through the White House. Brennan was a systems thinker and an unflappable manager, which endeared him to Poindexter. The two had discussed total information awareness at the CIA, when Poindexter was coming on board at DARPA. Over the years, they remained in touch, sharing ideas and talking shop. Poindexter admired Brennan’s professionalism, his nonpartisan commitment to the cause. Brennan left government in 2005 to head up a boutique contractor that worked almost exclusively for the intelligence community. Although he eventually went to work for Obama, Brennan maintained his personal contacts in the Republican administration. Fran Townsend, for one, had been a trusted friend and colleague, and they remained confidants.

  Brennan was first introduced to Obama by Tony Lake, a former national security adviser who was helping run the campaign’s foreign policy team. Brennan knew Lake from the Clinton administration, when he’d helped Lake prepare for the Senate confirmation hearings for his nomination to be CIA director. Republicans blocked the nomination, and Bill Clinton eventually withdrew it. But Brennan and Lake had clicked. So when Obama needed an intelligence adviser, Lake had an obvious recommendation.

  The young senator had been in office only since 2004, and he had no practical experience with the policy and operational issues that Brennan had been immersed in for a quarter century. Brennan knew how to work for a president, and for politicians. He was Clinton’s daily intelligence briefer at the White House, and he’d been chief of staff to Tenet, who had mastered the art of pleasing the CIA’s political masters like few other directors in the agency’s history.

  Brennan was the total package. He had the Washington résumé and expertise in counterterrorism, and he wasn’t intimidated by the Oval Office. He was a natural choice to help Obama sort out and shape his intelligence policies. But there was one problem.

  On the most important political question in the national security domain, the candidate’s and the adviser’s views differed. Obama was one of the most dependable immunity opponents in the Congress. But Brennan, who’d been at the CIA during the days of warrantless surveillance, and had been privy to the government’s most valued intelligence streams as director of the terrorism fusion center, firmly believed that the telecom companies must be protected. On March 3, just weeks after Obama voted against immunity, Brennan gave a wide-ranging interview with National Journal about his views on counterterrorism, the future of the intelligence community, and the controversy over surveillance.

  “There is this great debate over whether or not the telecom companies should in fact be given immunity for their agreement to provide support and cooperate with the government after 9/11,” Brennan said. “I do believe strongly that they should be granted that immunity, because they were told to do so by the appropriate authorities that were operating in a legal context, and so I think that’s important. And I know people are concerned about that, but I do believe that’s the right thing to do.”

  There was no gray area there. Brennan believed “strongly” in a position that his candidate was ready to filibuster in the Senate. The “appropriate authorities were operating in a legal context.” Alberto Gonzales had said the same thing. So had Mike McConnell. Brennan didn’t just say that immunity was the legally sound policy. Or the most politically expedient. It was the “right thing to do.” He came at the question with the mind and the heart of a spy. Brennan was a seasoned, clandestine operator. He knew as well as any of his veteran colleagues that without the telecom companies the intelligence community would be lost on a digital sea. They weren’t just a resource. They were partners. They were friends. And you didn’t abandon your friends.

  Brennan wasn’t alone in this view. Many former high-ranking intelligence officials had come out in favor of immunity. But they weren’t advising Barack Obama. At times in the interview Brennan channeled the critique that McConnell, Poindexter, and Hayden had made for so many years. The intelligence agencies had to be able to collect terrorist signals quickly, he said. “We shouldn’t be held hostage to a complicated, globalized information technology structure that puts up obstacles to that timely collection. I think there are some very, very sensible people on both sides of the partisan divide trying to make this happen. And it’s unfortunate that it’s become embroiled now in a partisan debate in some quarters.”

  When asked what advice Brennan had for the next president, he suggested that “they need to spend some time learning, understanding what’s out there, inventorying those things, and identifying those key issues or priorities that they have—FISA or something else. They need to make sure they do their homework, and it’s not just going to be knee-jerk responses.”

  Brennan’s expansive remarks infuriated the Netroots. The liberal-progressive blog ThinkProgress.org posted a link to the interview accompanied by an unflattering picture of Brennan in which he appeared to be snarling. “Brennan makes it clear that he agrees with the Bush administration,” the post read. “Obama needs to seriously dump this dude,” one reader commented. Others in the Netroots questioned whether the candidate was exerting enough control over his advisers, particularly after the campaign issued a statement in response to Brennan’s interview that put the two men at odds: “Senator Obama welcomes a variety of views, but his position on FISA is clear. He and Brennan differ.”

  Four months passed. The Democrats’ resolve to stand tall against telecom immunity and expansive surveillance authorities had withered. On the afternoon of July 9, the Senate took up a bill already passed in the House. Dubbed the FISA Amendments Act, it aimed to fix the surveillance law once and for all, and like its predecessor, it enshrined most of the powers that the Bush administration had sought. The bill included immunity for telecoms, and it gave the government broad authority to monitor communications outside the traditional search warrant process. Sixty-nine senators voted in favor of the bill. Obama was one of them. President Bush signed it into law the next day.

  The Democrats had caved, but that wasn’t surprising. There’d never been a realistic chance that they’d revert to the 1978 version of FISA. And no one in the party had offered a radical new rewrite of the law. The FISA Amendments Act offered some cosmetic changes that allowed the Democrats to appear as if they’d wrung real concessions from
the administration, but in practical terms it wasn’t much different from the Protect America Act. The political calculation was all too obvious. As the Senate took up the legislation, Obama was preparing to accept his fellow Democrats’ nomination for president at their convention in Denver. They weren’t about to hand Republicans a talking point as they headed into their own convention only days later, particularly since those yearlong surveillances begun under the Protect America Act would start expiring at the same time. The more pressing question was why Obama himself had voted for the law.

  He’d been preparing for the moment before it arrived. The day the House passed their version, almost three weeks before the Senate, Obama announced that he would be voting for the bill. He called it “a compromise.” But it was hard to see how the administration and congressional Republicans hadn’t won almost everything they wanted. Obama said the new bill would assert the FISA Court’s role in monitoring surveillance. But the court was authorized only to review the government’s “targeting procedures,” which intelligence officials and the attorney general would use to decide whom to monitor. The judges weren’t technical experts. They had to rely on the government’s assurances that these massive new surveillances weren’t going to inadvertently sweep in people they shouldn’t. The bill also gave immunity to the telecoms, so by any definition it was a major departure from Obama’s previous position. It also effectively legalized most of what the Bush administration had been doing in the dark since 9/11.

  Obama’s vote was his first break with the supporters who provided both the organizing energy and much of the money that drove his campaign. It was also the future president’s first major split with his own party. Twenty-eight Democrats voted against the bill. Senator Joe Biden, whom Obama would eventually pick for his running mate, was among them. Obama had once been ranked the Senate’s “most liberal” member by National Journal, the same nonpartisan political magazine that interviewed Brennan. That status was now in question. Obama had shown the party faithful that on matters of national security he was willing to pay a high political price in order to preserve executive power. The candidate seemed to be living up to the moniker used by his Secret Service protection detail: Renegade.