The Watchers

by Shane Harris

  135 The Pentagon chiefs had assured themselves that the IDC’s methods were unsound. Their reports to Able Danger certainly weren’t actionable: In my interview with Hamre he made clear that he and others felt that the methods and results of the IDC couldn’t be trusted entirely. This work had always been experimental. Pentagon officials gave a similar assessment years later in public when the Able Danger program was first exposed.

  CHAPTER 11: ECHO

  All statements, thoughts, and actions attributed to John Poindexter in this chapter come from interviews conducted in 2004 and 2008 unless otherwise noted.

  142 Across Washington millions of workers and tourists retreated via the only mode of transportation still functioning dependably—their feet: The accounts of life in Washington that day are drawn from voluminous newspaper and television reports on the events of that day as well as on my own discussions with friends and colleagues.

  142 Agents screamed at the crowd to run, take off your shoes if you have to, but run, as fast as you can: This account was chronicled in various newspaper articles, but it was also relayed to me by a White House staffer days after the attacks; she had to take off her shoes and run from the building.

  143 Mary McCarthy would not forgive herself, then and years later, for not finding the right signal in that ceaseless chatter that crossed her desk in the summer of 2001: Interview with McCarthy. I add that this is a sentiment shared by many of the government officials who were working on Al Qaeda before the 9/11 attacks. They will be forever haunted by the memories of what they believed they failed to do.

  CHAPTER 12: A NEW MANHATTAN PROJECT

  All statements, thoughts, and actions attributed to John Poindexter in this chapter come from interviews conducted with him in 2004 and 2008 unless otherwise noted.

  As in the previous chapter, accounts of the events of the days immediately following the attacks were chronicled in many newspaper articles and television broadcasts.

  144 “That’s funny,” Brian Sharkey told his old friend when he rang. “I was just thinking about calling you”: Interviews with Poindexter. I also spoke with Sharkey in 2004 about his recollections of that day.

  145 Sharkey had introduced the phrase two years earlier in Denver during a speech at the annual DARPATech conference: A copy of his remarks is available at www.darpa.mil/darpatech99/ Presentations/Scripts/ISO/ISO_TIA_Sharkey_Script.txt.

  149 He just wasn’t prepared to come back, and Poindexter didn’t want to force him: Interview with Poindexter.

  150 Poindexter found himself sitting in Tether’s office, suit-clad, a PowerPoint briefing on his laptop, ready to explain TIA: Poindexter provided me with the original TIA briefing he gave to Tether. All the passages cited here come directly from the briefing. Others I interviewed—notably a number of leading civil liberties activists—saw a later version of this briefing and still recalled many of the slides verbatim, without being prompted by me.

  153 Poindexter told Tether that he would build “privacy-protection” technologies into TIA’s design: The question of when Poindexter envisioned a privacy component to TIA has been a subject of some controversy. Did he imagine this as part of the system from the outset or was this component added later to appease privacy advocates? I conclude that it was the former. The early briefings clearly show that Poindexter envisioned some role for privacy, and this is fleshed out in subsequent briefing slides that he wrote not much later. My interviews with his staff, and with some of his most vocal critics, corroborate this. Also, some of the early research contracts awarded by the Information Awareness Office, before the TIA program became publicly well-known, contemplate this privacy research.

  CHAPTER 13: THE BAG

  155 Mike Wertheimer was looking forward to some quiet time with his wife: Mike Wertheimer told me about the 2001 Columbus Day weekend, as well as the meeting in the NSA’s conference room, during a conversation we had in Chicago on September 6, 2007, at a conference called “Analytic Transformation,” sponsored by the Office of the Director of National Intelligence, where he was employed. At this time, the NSA’s warrantless surveillance program had already been disclosed and acknowledged by President George Bush. Also, on May 18, 2006, Michael Hayden, the director of the NSA at the time the program was conceived, testified about the meeting before the Senate Select Committee on Intelligence. The matter came up in response to questioning during Hayden’s confirmation hearing to become the next director of the Central Intelligence Agency.

  Wertheimer recalled the story about his family and his father during our conversation. He also spoke about it later that evening when he gave a speech to the conference attendees. A transcript of the speech is available on the Web site of the Office of the Director of National Intelligence.

  I also interviewed Wertheimer for a profile in National Journal, “The Liberator,” published on September 22, 2007.

  157 Hayden explained to his employees that four days earlier the president had granted the agency new authorities that allowed the NSA to greatly expand its surveillance net: See Hayden’s May 2006 testimony.

  157 The agency could now target the communications of anyone reasonably suspected of being a terrorist, or those associated with them, without a warrant: Bush acknowledged this much after the New York Times revealed the warrantless surveillance program in December 2005.

  157 But now the analysts could listen in and determine if the conversation, or the parties involved, had any “nexus to terrorism”: In interviews with two very senior Bush administration officials I was told that “nexus to terrorism” became the key phrase used for deciding when to monitor the content of communications.

  My reporting on how the surveillance program actually worked, in terms of how analysts probed communications and made decisions about whom to monitor, involved interviews with government officials—at mid and senior levels—as well as private-sector individuals. No one would agree to be quoted by name in describing the mechanics of the system. Where possible and necessary, I will illuminate key insights into the program with mention of specific sources.

  159 “We’re going to do exactly what he said,” Hayden told his staff, referring to Bush. “Not one photon or one electron more”: Hayden made this statement in his May 2006 confirmation hearing.

  159 To Wertheimer, it seemed like the right thing to do: Conversation with Wertheimer in Chicago.

  159 “I will play in fair territory. But there will be chalk dust on my cleats”: This became a favorite phrase of Hayden’s, and was cited by lawmakers and journalists. Speaking at the Duquesne University commencement ceremony on May 4, 2007, Hayden repeated the phrase and noted that he’d used it in the past.

  159 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: Hayden recalled his experience on the morning of the attacks before a joint inquiry of the House and Senate Intelligence committees. His statement for the record was delivered on October 17, 2002. Also see James Bamford’s Body of Secrets: Anatomy of the Ultra-Secret National Security Agency (New York: Anchor, 2002) and The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America (New York: Doubleday, 2008).

  160 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: Over the years intelligence officials have repeatedly pointed to this film as an example of how Hollywood distorted their capabilities—at least before the 9/11 attacks. Some of them said they only wished the NSA had been as sophisticated as it was portrayed on-screen.

  161 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: This account is based on an interview with two NSA officials in 2005. They were not authorized to be quoted by name.

  161 Hayden broadened the reach of his signals-gathering agency in those first da
ys after 9/11: The interview with the NSA officials made clear this had occurred. And subsequently, five inspectors general who reviewed the NSA’s surveillance program corroborated the account. The unclassified version of their “Report on the President’s Surveillance Program” was released on July 10, 2009. They wrote, “In the days immediately after September 11, 2001, the NSA used its existing authorities to gather intelligence information in response to the terrorist attacks.” Those existing authorities, the inspectors general noted, were the Foreign Intelligence Surveillance Act and Executive order 12333.

  161 They handed over leads about potential targets inside the country to the FBI: See the aforementioned inspectors general report. Also see the New York Times’s report of January 17, 2006, “Spy Agency Data After Sept. 11 Led F.B.I. to Dead Ends,” by Lowell Bergman, Eric Lichtblau, Scott Shane, and Don Van Natta, Jr. Hayden also remarked on the flow of information to the FBI in remarks at the National Press Club, on January 23, 2006. He said, “Now, as another part of our adjustment, we also turned on the spigot of NSA reporting to FBI in, frankly, an unprecedented way.”

  162 As Hayden saw it, all these hot communications constituted foreign intelligence: Hayden explained this logic in detail during his remarks noted above at the National Press Club. For more explanations on how the Bush administration believed that the NSA’s surveillance program comported with laws and the president’s constitutional authorities, see the Justice Department’s white paper titled “Legal Authorities Supporting the Activities of the National Security Agency Described by the President,” dated January 19, 2006.

  164 After the briefing wrapped up, Pelosi thought about what Hayden had said: A redacted version of a letter Pelosi wrote to Hayden, which was later released publicly, states in part, “During your appearance before the committee, you indicated that you had been operating since the September 11 attacks with an expansive view of your authorities with respect to the conduct of electronic surveillance.” The letter indicated that NSA was “forwarding” information to the FBI. As the Washington Post’s Dafna Linzer reported on January 4, 2006, “Two sources familiar with the NSA program said Pelosi was directly referring to information collected without a warrant on U.S. citizens or residents.”

  164 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 recounted this story at his May 2006 confirmation hearing, and he also reminded the senators that he had “briefed the committee in closed session” about it. The inspectors general report on NSA’s surveillance program reiterates this account. They write, “When Director of Central Intelligence Tenet, on behalf of the White House, asked NSA Director Hayden whether the NSA could do more against terrorism, Hayden replied that nothing more could be done within existing authorities.”

  164 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: Again, see Hayden’s 2006 testimony, his National Press Club speech, and the report of the inspectors general.

  164 Well before the attacks, Hayden understood his agency was still collecting intelligence with a cold war mind-set: A frank assessment of NSA’s challenges and priorities at the dawn of the twenty-first century is contained in a once classified report that the agency prepared in December 2000 for the incoming Bush administration. Titled “Transition 2001,” it warned officials that they “must understand that today’s and tomorrow’s mission will demand a powerful, permanent presence on a global telecommunications network that will host the ‘protected’ communications of Americans as well as targeted communications of adversaries.” This report, as well as other documents that shed light on internal NSA thinking, is on the Web site of the National Security Archive, at www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB24/index.htm.

  For another useful source of insight into the NSA’s mind-set before the 9/11 attacks, see Hayden’s testimony before the House Intelligence Committee delivered April 12, 2000. Hayden said, “NSA is not authorized to collect all electronic communications. NSA is authorized to collect information only for foreign intelligence purposes and to provide it only to authorized government recipients.” The subject of the hearings centered on allegations that the NSA had engaged in industrial espionage, providing intelligence on European corporations to their American competitors. Hayden reminded lawmakers that the rules governing surveillance grew out of the abuses of an earlier generation, and that the agency had surely learned its lesson. His testimony gives a thorough account of how Hayden thought FISA and Executive order 12333 governed his agency’s actions.

  164 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: The New Yorker’s Elsa Walsh recounts this mission in her profile of Baginski, “Learning to Spy,” published on November 8, 2004.

  165 Hayden explained that any effective system for spotting terrorists before they struck had to meet three criteria: Hayden recounted this meeting in his 2006 confirmation hearing.

  166 They would also need access to a source that the NSA had not been collecting systematically in the past: e-mail: Two former administration officials said in interviews that the NSA hadn’t systemically collected e-mails, and that after the 9/11 attacks, agency officials realized this had been a mistake.

  166 Wertheimer had led an exercise to find out whether Russian mobsters were supplying weapons of mass destruction to Iran: See Walsh’s New Yorker piece.

  166 As Hayden set up the new surveillance program, it was increasingly clear to NSA officials that e-mail, not phone calls, would constitute the bulk of their collection: A former senior intelligence official, who had direct knowledge of the NSA’s capabilities and was read into the surveillance program, emphasized that the agency was more interested in e-mails than in any other kind of communication.

  167 Hayden had come up with a plan, and Bush personally felt it was a good idea: Bush emphasized his support for the program on numerous occasions, and he personally intervened with the New York Times to keep the newspaper from writing about it. See the president’s remarks during a press conference on March 20, 2006, in which he said that “after September the eleventh, I spoke to a variety of folks on the front line of protecting us, and I said, Is there anything more we could be doing, given the current laws? And General Mike Hayden of the NSA said there is.” Bush said that Hayden described the surveillance program as “hot pursuit” and that Hayden “designed a program that will enable us to listen from a known al Qaeda, or suspected al Qaeda person and/or affiliate.”

  167 On September 25, Yoo sent a memo to a senior official in the Justice Department: See “Memorandum for David S. Kris, Associate Deputy Attorney General” regarding “Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the ‘Purpose’ Standard for Searches.” A copy of the memo is on the Justice Department’s Web site.

  168 But then Yoo offered an unsolicited assessment: A Justice Department official told me that Yoo was never asked to offer an opinion regarding the modification of FISA, and that Kris was surprised to read an expansive analysis of the president’s surveillance authorities.

  170 “I can’t not do this,” Hayden told himself: In Hayden’s 2006 confirmation hearing, Senator Kit Bond asked, “Did you believe that your primary responsibility as director of NSA was to execute a program that your NSA lawyers, the Justice Department lawyers, and White House officials all told you it [sic] was legal and that you were ordered to carry it out by the president of the United States?” Hayden replied, “Sir, when I had to make this personal decision in early October, 2001—and it was a personal decision—the math was pretty straightforward. I could not not do this.”

  171 Stellar Wind: This code name was first reported by Michael Is
ikoff in Newsweek on December 22, 2008, in his article “The Fed Who Blew the Whistle.” I asked a former senior administration official if this was the code name for NSA activities, including those that became the center of major internal controversy in 2004. The former official confirmed that Stellar Wind was the code name. It’s worth mentioning an amusing anecdote here, because it sheds light on the often fragmentary process of reporting about the intelligence program. In late 2007, while reporting a story about the NSA’s surveillance activities before the 9/11 attacks, I interviewed a former White House official who referred to the warrantless surveillance program but actually had trouble recalling its name. This official couldn’t remember if it was called “star something” or “whirlwind.” I know from interviewing a former high-ranking intelligence official who advised the president on a regular basis that the NSA activities were often just referred to as “the president’s program.”

  171 They called it the Big Ass Graph: The term “big ass graph” is known to those with deep technical knowledge of surveillance, and who are also close to the agencies and companies with expertise in that realm. Poindexter, for one, knows the term, and that it refers to a program developed by a computer scientist mentioned in a later chapter. The source for the use of “big ass graph” and “the BAG” as a synonym for the NSA’s surveillance program is a private-sector official with technical expertise and direct knowledge of the program.

  CHAPTER 14: ALL HANDS ON DECK

  All statements, thoughts, and actions attributed to John Poindexter in this chapter come from interviews unless otherwise noted.

  Details of all Information Awareness Office programs came from interviews with former office staff, including Doug Dyer and the late Tom Armour. When the IAO was still active its Web site was also a richly detailed repository of information about the programs. Many of those documents have been removed from their official pages, but they continue to reside on Web sites hosted by archivists, historians, and activists.