The Watchers

by Shane Harris

  220 When it came time for Jonas to speak, Poindexter thought he might be a comedian: Interview with Poindexter.

  225 Poindexter knew technology better than he did gambling, and in NORA, he saw potential: Ibid.

  225 Jonas stepped into Poindexter’s office at DARPA headquarters: I interviewed Jonas, Poindexter, and Popp about this meeting.

  227 DARPA was considering whether to convene a study group to look at the balancing act of privacy and security, from a technical perspective: I interviewed three participants about this meeting—Poindexter, Fran Townsend, and Marc Rotenberg, the president and executive director of the Electronic Privacy Information Center. The final paper, titled “Security with Privacy,” was published on December 13, 2002, at http://epic.org/privacy/profiling/tia/isat_study.pdf.

  CHAPTER 19: THE UNRAVELING

  230 They all asked the same question: “Did you see the following?”: Interview with Popp in 2008.

  230 John Markoff had first reported about TIA less than a week earlier: “Pentagon Plans a Computer System That Would Peek at Personal Data of Americans,” New York Times, November 2, 2002.

  230 The Washington Post followed with a story: “U.S. Hopes to Check Computers Globally,” November 12, 2002.

  231 Popp’s first reaction was not to worry: Interview with Popp. He also described the reaction within Poindexter’s office.

  231 Privacy activists could scarcely believe their luck. Was Poindexter really so politically tone-deaf ?: Interview with Barry Steinhardt of the American Civil Liberties Union in 2008.

  231 The Washington Post editorial board observed: “Total Information Awareness,” November 16, 2002.

  232 As Poindexter sat before fifty or so curious, skeptical, and undoubtedly confused members of Congress and their staffs, he hoped his guiding principles would keep him afloat: Accounts of the briefing came from Poindexter and Popp. The staffer who confronted Poindexter confirmed the account.

  233 The secretary of defense ordered Poindexter gagged: At the time Poindexter denied all requests for interviews, including mine. He later told me that he was ordered by Rumsfeld’s office not to speak publicly.

  233 “If we need a big brother, John Poindexter is the last guy on the list that I would choose”: Senator Charles Schumer on ABC’s This Week with George Stephanopoulos, November 24, 2002.

  234 a columnist for the independent San Francisco Weekly turned the tables on the supersnoop: “Calling All Yahoos: Worried About What John Poindexter’s up to as Federal Information Czar? Call His Home Number and Ask,” by Matt Smith, November 27, 2002.

  234 “I don’t know much about it,” Rumsfeld said: See Defense Department transcript, “Secretary Rumsfeld Media Availability En Route to Chile,” November 18, 2002, at www.defenselink.mil/transcripts/transcript.aspx?transcriptid=3296.

  CHAPTER 20: GOING BLACK

  236 That was the message that John Hamre brought back to his friend Poindexter after a scouting mission on the Hill: Interview with Poindexter in 2008. Popp also confirmed that Hamre went to the Hill to gather information. Hamre’s think tank, the Center for Strategic and International Studies, was also under contract to Poindexter’s office, examining models of oversight or legal protections that might permit agencies to conduct pattern-based searches of data. This was the policy side of the privacy equation that Poindexter was trying to balance. He’d first approached the National Academies of Sciences with the job, but when officials there thought the research was too politically sensitive to take on, Poindexter asked Hamre’s group to do it.

  237 “The problem is that he may be the right man”: Bob Levy, a Cato Institute senior fellow, spoke at a Cato forum on December 12, 2002.

  237 “not only Timothy McVeigh,” who bombed the Murrah Federal Building in Oklahoma City, “but most farmers in Nebraska”: Paul Rosenzweig of the Heritage Foundation testified at a hearing about TIA before the House Government Reform Committee Subcommittee on Technology, Information Policy, Intergovernmental Relations and the Census on May 20, 2003. His remarks were covered by Sarah Lesher in “Antiterrorism Measures Under Scrutiny,” The Hill, June 4, 2003.

  237 The presentation lacked details, Steinhardt thought: I interviewed Steinhardt about the meeting, his thoughts on TIA, and his appreciation of Poindexter in 2008. I also interviewed Popp about the meeting with Steinhardt and Dempsey.

  239 In those fumbling moments Tether turned to Popp to fill in the gaps. He was mortified: Interview with Popp.

  239 To forestall a showdown on the Hill, Poindexter wrote a detailed review of TIA and the Information Awareness Office: This is DARPA’s “Report to Congress Regarding the Terrorism Information Awareness Program,” at http://w2.eff.org/Privacy/TIA/TIA-report.pdf.

  240 Poindexter, who’d been telling Tether that he wanted to resign since the spring, now said he would leave by the end of August: Interview with Poindexter.

  241 rumors started circulating among the press corps that Rumsfeld had fired Poindexter: These rumors were known to me through the course of my reporting on Poindexter and his resignation.

  241 “I’m going to turn SAIC loose,” Poindexter told Tether: Interview with Poindexter.

  241 “You’ve got a $20 million contract on the line,” Popp said: Interview with Popp.

  241 He called his friend Bob Beyster: Poindexter and Popp separately provided details about SAIC’s intervention on their office’s behalf.

  242 This time they used descriptions of TIA and the Information Awareness Office that Poindexter and Popp had written themselves: I obtained a copy of this presentation from a source who asked to remain anonymous.

  242 At Poindexter’s request, he came down to Fort Belvoir, to the TIA network hub: Interviews with Poindexter and Popp.

  243 NSA was a logical place for TIA to go: I first reported the move of the TIA programs to the NSA in National Journal. See “TIA Lives On,” published on February 23, 2006. I note here that neither Poindexter nor Popp was a source of this information. Later, Popp publicly confirmed that the move had occurred in an interview with PBS’s Frontline: “Spying on the Home Front,” May 15, 2007.

  Before he died, I also interviewed Tom Armour, the program manager for Poindexter’s Genoa II program, about the unit that eventually took over the work of the Information Awareness Office. He said that Advanced Research and Development Activity pursued technologies that would be useful for analyzing large amounts of phone and e-mail traffic. “That’s, in fact, what the interest is,” he said. Armour told me that when TIA was still being publicly funded its program managers and researchers had “good coordination” with their counterparts at ARDA and discussed their projects on a regular basis. Armour declined to speak with me about the transition of the former Information Awareness Office programs to ARDA, and he was not a source for that information.

  244 Popp drew up a simple list: Interview with Popp.

  245 Hayden sat down with the Democratic and Republican heads of the House and Senate Intelligence committees: On May 16, 2006, the Office of the Director of National Intelligence declassified a list of all the briefings the administration had given members of Congress about the terrorist surveillance program.

  245 Harman thought that the PowerPoint presentation she saw was pretty thin stuff: On September 20, 2006, Harman said during a House Intelligence Committee markup of a surveillance bill, “There has also been a stunning dearth of oversight over the President’s NSA program in this committee. Months ago, I asked that Committee members meet with the NSA Inspector General, Members of the FISA Court, the Department of Justice, the FBI, and the CIA to learn whether the program has helped stop any terrorist attacks. The Majority denied each of those requests. I have asked for a copy of the President’s Authorization for the Program and for other core documents. The Administration has refused to produce them. In June, I asked you, Mr. Chairman, to write a letter with me to the NSA Inspector General asking to review his seven reports on the program. You did not send that letter. A two-hour PowerPoint pr
esentation from an NSA official, or an occasional briefing by the NSA Director, does not constitute sustained, serious oversight. None of these briefings has been on-the-record, on the purported theory that we could not find a single cleared stenographer, even though thousands of Executive Branch officials have been briefed into this program! The American people deserve better.”

  246 Later that day, he penned a letter to Cheney: A copy of Rockefeller’s letter was released after the NSA surveillance program was publicly exposed, at www.talkingpointsmemo.com/docs/rock-cheney1.html.

  246 Before he headed home for good, Poindexter stopped in at the Pentagon, to say good-bye to Rumsfeld: Interview with Poindexter.

  CHAPTER 21: BASKETBALL

  251 Brian Sharkey sent an e-mail to firms working with his company: I obtained a copy of this e-mail from a private-sector source that is independent of Sharkey’s firm. This individual asked not to be identified.

  251 One of Sharkey’s colleagues sent a follow-up message to Hicks employees: Ibid.

  251 Appropriators spelled out in the classified annex which elements would continue to receive funding: I verified the continuation of the specific programs with individuals who have direct knowledge of what’s contained in the classified annex and who asked not to be identified. Additionally, I obtained an official document that describes which programs continued and how they progressed from a source who asked not to be identified. See also my story “TIA Lives On” in National Journal, February 23, 2006.

  252 Now known as the Research Development and Experimental Collaboration, or more simply, “the RDEC”: The aforementioned official document also describes the RDEC in detail. I interviewed former government officials and private-sector sources all knowledgeable of the RDEC and its work. These people asked not to be identified. I also spoke for background purposes with a Homeland Security Department intelligence official who confirmed the RDEC’s existence and its purpose. See my story “Signals and Noise” in National Journal, published on June 19, 2006.

  252 But he regretted that the privacy research had been tossed into the dustbin: Interviews with Poindexter. He has emphasized on numerous occasions his disappointment that the privacy research was discontinued. I have found no evidence that he could have ensured that it was. The move of the programs from DARPA to the NSA’s research unit was handled primarily in Congress, and by that time Poindexter was persona non grata there. Popp also had no real power to force the NSA group to take up the privacy research. He could only try to persuade them. Ultimately, it was the call of the officials working there, who were under the purview of Mike Hayden.

  253 “When I walked away from that program,” he would recall years later, “I wanted nothing to do with it ever again”: Mike Wertheimer told me this during our conversation at the “Analytic Transformation” intelligence conference in Chicago (cited also in chapter 13) on September 6, 2007, which was sponsored by the Office of the Director of National Intelligence, where he was employed.

  It’s worth noting here that Wertheimer’s judgment is not unique. Indeed, many surveillance experts, scholars, and lawyers told me that the Bush administration was justified in taking extraordinary steps in the immediate aftermath of the 9/11 attack to prevent another act of terrorism. In that exigent breach, these people said, violations of FISA could be forgiven. (Speaking on background, even an attorney with the American Civil Liberties Union expressed this view to me and said he could have accepted a program of warrantless surveillance for six months to a year after the attacks.)

  But, in these experts’ opinions, in the absence of another attack or a clear and present threat to the United States, the administration should have rescinded the extraordinary authorities or sought changes to the law that would give the NSA the powers it needed to collect intelligence on terrorists. The fact that Wertheimer, a career NSA official, shared this view, and that he was in a position to know the severity of the terrorist threat in the months and years after 9/11, helped inform one of my core conclusions: The Bush administration squandered an opportunity to craft some middle ground, one that would have given the NSA the powers it legitimately needed in a manner that the public could accept.

  253 One senior CIA official who was privy to the security agency’s reporting routinely saw American citizens and other U.S. persons directly named in its reports: Interview with said official, who asked not to be identified, in 2008.

  253 Popp tried one last time to revive the privacy research: Interview with Popp in 2008.

  CHAPTER 22: RESURRECTION

  254 Poindexter hadn’t been far from Townsend’s mind: Interview with Fran Townsend.

  254 Poindexter said that he’d like to get together: Interviews with Townsend and John Poindexter.

  255 Syracuse University had invited him: I was also invited to speak on this panel, and it was on this occasion that I first met Poindexter. He sought me out and apologized for not agreeing to my previous interview requests. Not long after this meeting, I began the series of interviews that eventually culminated in this book. All the dialogue and descriptions contained in the passage about the Syracuse episode come from my first-person reporting. I also interviewed the student identified here, Sam Alcoff, and spoke more with Poindexter about his reactions to what Alcoff said.

  259 The participants gathered at Cantigny: The conference materials for “Counterterrorism Technology and Privacy,” held June 24 and 25, 2004, as well as the guest list, are available on the McCormick Foundation’s Web site, www.mccormickfoundation.org/publications/counterterrorism.pdf. I spoke with one of the participants on background to better understand the format and how the participants interacted. I also interviewed Poindexter and Steinhardt about the conference.

  259 both men had been informed about the NSA surveillance program: See Barton Gellman’s Angler: The Cheney Vice Presidency (New York: Penguin Press, 2008).

  260 Looking back, Steinhardt still felt that killing TIA—at least in one form—counted as a win: Interview with Steinhardt.

  261 the attendees drew up a lengthy set of principles: This report is also publicly available. It is titled “Counterterrorism Technology and Privacy” and was published by the McCormick Tribune Foundation as part of the Cantigny Conference Series. A copy is available at the McCormick Foundation’s Web site, www.rrmtf.org/publications/counterterrorism.pdf.

  261 It wasn’t warrantless “wiretapping” that had senior lawyers at Justice on edge. Rather, it was the layer of surveillance that often preceded it: A former senior administration official told me that it was the collection and mining of metadata, provided by telecommunications companies, that prompted Justice Department officials to object to the NSA surveillance.

  The legal rationale for this objection, and the apparent acceptance of targeted warrantless surveillance, has never been fully explained. It is possible officials believed that because the government predicated targeted surveillance on some “reasonable belief ” that the participants involved in a phone call or e-mail had a nexus to terrorism, they then had the authority to collect intelligence. In the case of mining metadata, however, there could be no reasonable basis for suspicion, because, by design, the surveillance involves a massive, arguably indiscriminate, sweep of mostly innocuous communications. Put another way, it’s a lot less “reasonable” to go fishing for bad guys without a known suspect than it is to try and find them through more discrete, targeted surveillance, particularly when there’s some reason to believe that a party to the communication is connected with terrorists.

  In any case, the former administration official confirmed that it was this massive surveillance that prompted the extraordinary showdown between Justice officials and the White House. This account is supported by reporting in Newsweek, specifically Daniel Klaidman’s article “Now We Know What the Battle Was About,” published on December 13, 2008. Attorney General Alberto Gonzales had also hinted in testimony before the Senate Judiciary Committee on February 7, 2006, that the objections raised by Justice’s law
yers involved some other activity than targeted warrantless surveillance, which at that point President Bush had acknowledged publicly as the “terrorist surveillance program.” Gonzales again appeared before the panel on July 24, 2007, to answer questions about the NSA’s surveillance. In each of his appearances, Gonzales seemed to indicate that there was no opposition to that program within the administration. But when it became clear that there was, in fact, tremendous concern about it, some lawmakers accused Gonzales of lying. Not long after his testimony Justice Department officials spoke to reporters anonymously and said that the program in question that had caused such consternation involved data mining. They didn’t go into specifics. See “Former U.S. Official: Gonzales ‘Splitting Hairs’ in Testimony,” published on CNN’s Web site on July 30, 2007. Also see “Gonzales Denies Improper Pressure on Ashcroft,” by David Johnston and Scott Shane, New York Times, July 24, 2007.

  For an in-depth account of the standoff between Justice and the White House, see Gellman’s Angler. Also see an adaptation of the book published in the Washington Post, September 14, 2008, titled “Conflict Over Spying Led White House to Brink.”

  Also see the memoir of Jack Goldsmith, the former head of the Office of Legal Counsel, The Terror Presidency: Law and Judgment Inside the Bush Administration (New York: W. W. Norton & Co., 2007).

  262 Brenner and Potenza . . . had assured Hayden he could rely on those presidential authorities that Ashcroft was supposed to review. But the White House had forbidden the NSA men to see the underlying analysis, prepared by Yoo: See Gellman.

  262 he’d spent the past few years telling congressional officials, in his limited briefings, that the NSA’s lawyers had signed off on the program: Hayden emphasized this in numerous public statements about the surveillance program. One of his most detailed accounts was presented at the National Press Club, in an address to reporters on January 23, 2006.