The Watchers

by Shane Harris

  When Obama tried to explain his change of heart he sounded more like a president than a junior senator. “The ability to monitor and track individuals who want to attack the United States is a vital counterterrorism tool, and I’m persuaded that it is necessary to keep the American people safe,” he said in a statement issued through a campaign Web site. Obama pointed out that the electronic surveillance orders begun almost a year earlier would expire in the summer. To him that posed an unacceptable risk.

  Obama tried to assuage the Netroots, who vented their accusations of betrayal into the blogosphere. The candidate threw them some red meat: “Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President’s illegal program of warrantless surveillance will be over.” Obama failed to mention that after the Bush administration brought the program before the FISA Court in January 2007, the president’s program was technically no longer operating outside the law. Other times he tried to make the law appear stronger than it actually was. Six days before the vote Obama wrote an open letter to those who opposed his decision: “As I’ve said many times, an independent monitor must watch the watchers to prevent abuses and to protect the civil liberties of the American people. This compromise law assures that the FISA court has that responsibility.” But even a cursory read of the bill showed that the court’s authority was greatly diminished. Unless Obama’s standards for oversight had changed, he was exaggerating the bill’s strengths.

  But it was what Obama actually said rather than what he wrote that revealed why he’d changed his thinking. In a press conference in Chicago on June 25, Obama said that he’d learned something about the NSA’s program, something that seemed distinct from matters of law and political positioning: “All the information I’ve received is that the underlying program itself actually is important and useful to American security.” There was only one source from which he could have received an assessment about whether the program was actually important. Only one person advising his campaign had been around the intelligence community long enough to make such a judgment. Only one had been personally aware of the NSA’s surveillance program and had been instrumental in keeping it alive. It was John Brennan. He’d been at the CIA when the agency was in charge of preparing detailed “threat assessments” every forty-five days about the risk of terrorist attacks inside the United States. The Bush administration used these documents, known by insiders as “the scary memos,” to justify the continued authorization of warrantless electronic surveillance. Two months after Brennan took over the Terrorist Threat Integration Center, it was put in charge of preparing the memos based on intelligence coming in from across the government.

  As the dust settled on Obama’s FISA vote, it was clear that Brennan had played a decisive role in shaping the candidate’s thinking. Obama had acknowledged that his decision wasn’t based solely on the legislative debate. He had been told that the program was “useful.” If that was the case, it shouldn’t be scrapped. These surveillance powers should be protected in law. Obama had seen that “the ability to monitor and track individuals” was a vital tool. Why would he give it up when he was so close to winning the presidency?

  Obama called his vote “a close call for me.” But it was deliberate and considered. He had picked up the support of the Netroots when he threatened a filibuster. By switching positions and voting for the law, he burnished his credentials with another constituency, one that any future president would need on his side—the intelligence community.

  On September 2, Mike McConnell prepared for an unusual intelligence briefing. Most mornings he sat with the president in the Oval Office. Now he’d join the Democratic presidential nominee in Chicago, to give him his first classified glimpse into the terror war.

  Intelligence officials had learned that the first year of a new presidency was an especially vulnerable period. The 1993 World Trade Center and the 9/11 attacks both occurred within eight months of a change in administrations. At the time of the first attack Bill Clinton had been in office only thirty-seven days. To help keep either candidate from being taken by surprise, McConnell’s office prepared briefings for Obama and McCain, who was set to accept his party’s nomination that week. After the election the winner would begin to receive a copy of the President’s Daily Brief, the classified document that was delivered to the commander in chief every morning.

  Obama had traveled to Iraq and Afghanistan in July to meet with U.S. military commanders. His staff informed McConnell that the first intelligence session shouldn’t focus on the wars. Obama wanted to know about terrorist threats to the United States.

  McConnell’s office had planned to meet with the nominee for one hour. But the briefing stretched another thirty minutes. Obama was fascinated. McConnell and his team of briefers saw a familiar expression, the same one that came over every man this close to the ultimate office. It was a mix of shock at the range of threats and a kind of wonder when he realized what extraordinary capabilities the president had to defend the country. The weight of responsibility etched itself into Obama’s face. “Until this point, I’ve been worried about losing this election,” he told McConnell and his colleagues. “After talking to you guys, I’m now worried about winning.”

  In his inaugural address Obama aimed his rhetorical sights squarely at the former president. “As for our common defense,” he said, “we reject as false the choice between our safety and our ideals.” It was a bold flourish meant to put some distance between himself and George Bush, who was seated only a few feet away from the inaugural podium.

  Two days later Obama issued three executive orders on some of Bush’s most controversial war-on-terror programs—the interrogation and detention of terrorist suspects. Opponents of the Bush doctrine would declare that with the stroke of a pen Obama had swept away lawless and shameful policies and returned the rule of law as the guiding principle of national security. Certainly the new commander in chief wanted to appear as if he were charting a new course by ordering an end to harsh interrogation techniques, including the notorious waterboarding, and declaring that the infamous island prison at Guantánamo Bay, Cuba, would be shuttered within a year. But a careful reading of the president’s orders revealed far less distance between him and Bush than many wanted to see.

  It was true that Obama limited the menu of interrogation techniques to those found only in the Army Field Manual, a document that some Bush administration intelligence officials—including Mike Hayden—found overly restrictive. “Violence to life and person,” “torture,” and “humiliating and degrading treatment” were prohibited. And the CIA was ordered to get out of the secret prisons business and close any remaining black sites.

  But Obama also set up a special task force whose mission was to determine whether the interrogation techniques in the Army Field Manual gave the intelligence agencies “an appropriate means of acquiring intelligence necessary to protect the nation.” In other words, if the manual was too conservative, as some felt, what harsher techniques should be used? Later, Obama’s nominee to head the CIA, Leon Panetta, said that if he felt it was necessary to use stronger techniques on a terrorist suspect, he would not hesitate to seek the president’s approval.

  In August, the White House announced that it was setting up a new multi-agency team dedicated exclusively to the interrogation of so-called high-value terrorists, those who might possess critical intelligence about pending attacks. The FBI would take the lead, a clear indication that the administration favored using the noncoercive interrogation techniques practiced by the bureau over the brutal tactics that the CIA had employed. The team would be restricted to the Army Field Manual for now, though Obama’s advisers said they should also develop a “scientific research program” to study new techniques and review existing ones.

  The interrogation unit would be specially trained and stand ready to deploy anywhere in the world on a moment’s notice. But that wasn’t its most extraordinary characteristic. While the FBI direct
or would lead the group, it would ultimately report to the National Security Council. Not since the days of Ronald Reagan had the NSC staff so directly taken on the management of a sensitive intelligence operation. Obama was going to keep terrorist interrogation in place, and he was going to keep it close to him.

  Obama’s order to close Guantánamo Bay also wasn’t an emphatic rejection of Bush. It was politically audacious to order the prison shut down without a plan for dealing with the more than two hundred people still held there. But only a few months after he signed the order, Obama faced a revolt by members of his own party, who joined Republicans in Congress in strongly opposing any release of detainees into the United States. Lawmakers unanimously denied any funding for the prison closure until the White House came up with a plan for disposing of the prisoners.

  The administration also found that some of the detainees’ cases posed extraordinary legal challenges. They couldn’t be let go, but they also couldn’t be tried in U.S. courts, because some of the evidence against them was gathered through extreme techniques that the Obama administration said amounted to torture. The administration acknowledged that some detainees would have to be tried by military commissions, whose standards of due process differed from those of criminal courts. Bush officials had also opted to use military commissions rather than criminal courts, believing they’d offer a better chance to obtain convictions.

  Obama had tried to distance himself from Bush in the first forty-eight hours of his presidency, but by the time his first hundred days were through, the president had become accustomed to a new critique, expressed most regretfully by the leftist base of his party: Real change was an illusion. The new president looked more like the old one every day.

  On one cornerstone terrorism policy, however, Obama remained conspicuously silent. There were no executive orders issued on electronic surveillance. No speeches about shutting down the NSA programs or revisiting the policy of telecom immunity that he had come around to supporting. Despite continuing protests from the Netroots, the president showed no inclination to dismantle a set of tools that his predecessor had regarded as the “crown jewel” of America’s counterterrorism arsenal.

  Only weeks after Obama took office, he faced his first test on the NSA surveillance, which had run off the rails in a fashion that many critics of the “FISA fix” had predicted. During a periodic review of surveillance activities officials discovered that the agency had inadvertently collected the phone calls and e-mails of Americans. This was the very “incidental” collection that some had feared. In the course of monitoring supposedly foreign communications, the NSA had trouble distinguishing which phone numbers and e-mail addresses actually belonged to people in the United States. As a result the agency ended up directly targeting Americans without individual warrants—a basic violation of the new law.

  This was not a onetime accident. The “overcollection,” as intelligence officials called it, was systemic, and a direct result of the difficulty of knowing for sure where a target was actually located on the globe. Members of Congress were only alerted to the overcollection after it had occurred. And that revealed another troubling aspect of the surveillance regime. The NSA hadn’t been trying to hide what happened. Rather, officials apparently discovered the violation only after they checked their surveillance logs. The Watchers had been watching the wrong people and didn’t know it.

  During his campaign Obama had said that he voted for the dramatic changes to FISA because someone needed to “watch the watchers.” But it was unclear who was doing that job. The president had said that that duty fell to the FISA Court. But its members only learned of the infractions when they were told by the Justice Department, following a required review of the logs conducted once every six months. This was the new definition of oversight—a twice yearly checkup and a bill of infractions delivered after the fact.

  The review began in the closing days of the Bush administration and carried over into Obama’s first term. When officials became aware of the problem, the president issued no public remarks. He wrote no executive orders. Instead, his attorney general ensured that new, undisclosed safeguards were put in place. Then he appeared before the FISA Court, where he asked for and obtained a renewal of the program.

  Things became clearer after that. Who was watching the Watchers? They were watching themselves.

  EPILOGUE

  John Poindexter is a man with few regrets. One might reasonably assume that, having been put through the political wringer twice, he has emerged a hardened cynic. And yet his grueling public ordeals have only made him a sunnier optimist. Perhaps that’s because now, as he sails into the twilight of his life, Poindexter doesn’t have to look very hard to see the evidence of his handiwork, and the beginnings of a legacy.

  This isn’t wishful thinking on his part. I have no doubt that his vision of a total information awareness society was not only prescient but accurately reflects where we have arrived as a nation. John Poindexter envisioned a world. Mike Hayden made it a reality. Mike McConnell enshrined it in law. And Barack Obama inherited it. In broad strokes, that’s how we got where we are now.

  When the news of the NSA’s warrantless surveillance program first broke in December 2005, Poindexter was pleased to see that Hayden had been following his advice. He’d recognized that in order to find signals in the noise one had to collect information from far and wide. But Poindexter was deeply disappointed that the NSA had not pursued his ideas for privacy protection. Indeed, subsequent reporting revealed that the agency had rejected a new data-analysis system that had such protection built in because it was too expensive and too technically demanding. Apparently, adding a layer of protection technology increased the complexity of the software and made it less flexible. Poindexter knew it would take leaps of innovation to make a privacy appliance work, which is why he envisioned such work as part of a grand “Manhattan Project” for the information age. One can say Poindexter is wrong about some things, but technical engineering isn’t one of them.

  And there, I think, lies the national tragedy in the personal story of John Poindexter. If our leaders were truly committed to preventing acts of terrorism, and at the same time really wanted to protect individual privacy, then they should have kept Poindexter right where he was, as the lead visionary and chief proponent of a radical new way of thinking about how to secure people’s lives and their rights. They should have closely scrutinized his work, kept it limited to research, and exploited his unparalleled technical expertise and his willingness to court controversy without regard for his political reputation. Our government should have used John Poindexter, if for no other reason than that he was willing to be used. Had that happened, I believe we might have avoided the scenario we’re presented with today: a rising surveillance state and the near certainty that, in the wake of another major attack, the debate over how to properly balance the competing interests of security and liberty will simply become academic. There will be no time for deliberation, and our leaders will show little restraint. History tells us this is so.

  We no longer live in a world where we can reasonably expect certain personal information to remain private. And we have never lived in a country where the government willingly restrains itself from collecting, analyzing, and disseminating information about our lives, our associations, and our thoughts. The intelligence surveillance laws and regulations of the late 1970s were short-lived. They were created in reaction to unquestionable abuses of power, but they began to prove their technical inadequacy in less than a decade. They have also been obsessed with regulating the collection of information rather than how it is used, which is the more important component of the intelligence system. Our elected officials could have rolled up their sleeves and dived into this complicated legal bramble, and we might have been better—and safer—for it. Instead, they have created laws that tilt the balance of power back to where it has usually been in the realm of national security—toward the executive branch, and to the president in particu
lar. We have seen the excesses born of this arrangement. But we have never lived in a time when the government has had such remarkable technological ability to watch its own citizens.

  Our government officials know that, and they have put us all on notice. One speech by a seasoned career intelligence official reaffirmed this point for me in a way that few public remarks ever have. In November 2007 Donald Kerr, then the deputy director of national intelligence, spoke about how the spy community was operating in the information age. Kerr had spent much of his career in the technical field and was one of the top CIA officials who met with Poindexter about the total information awareness program in 2003. I found his remarks revealing for two reasons: First, what he said, and second, the fact that so few people noticed.

  “Nowadays, when so much correlated data is collected and available—and I’m just talking about profiles on MySpace, Facebook, YouTube here—the set of identifiable features has grown beyond where most of us can comprehend.” Traditionally, those “identifiable features” included the fragments of data that were unique to one person—a name, a date of birth, a Social Security number. Now we had to add profile pages, social networks, and personal blogs to the mix. “In our interconnected and wireless world,” Kerr said, “anonymity—or the appearance of anonymity—is quickly becoming a thing of the past.”