A book by a former senior Justice Department official, Jack Goldsmith, and interviews conducted for this book reveal that a large number of senior officials inside the U.S. government with a “need to know” were deliberately excluded by Cheney’s office from having access to information concerning the NSA eavesdropping programs. With the exception of four senior officials, all Justice Department employees were barred from access to details concerning the programs by order of Cheney’s office, including Deputy Attorney General Larry Thompson and the Justice Department’s Civil and Criminal Divisions.7Even the attorney general of the United States himself experienced great difficulty getting essential information about the programs from Cheney’s office. Attorney General John Ashcroft, who was one of the few U.S. government officials cleared for access to the programs by the White House, complained in 2004 that “he was barred from obtaining the advice he needed on the program by the strict compartmentalization rules of the WH [White House].”8Ashcroft was not alone. Goldsmith noted, “I too faced resistance from the White House in getting the clearance for the lawyers I needed to analyze the program.”9
Within the U.S. intelligence community, virtually no one was granted access to information about the eavesdropping programs, such as the legal briefs written by White House counsel Alberto Gonzales and Justice Department lawyer John Yoo that justified the program. At the top of the list of people who were not permitted to see the Gonzales and Yoo legal briefs were the lawyers in NSA’s Office of General Counsel responsible for ensuring that the eavesdropping programs conformed with the law. Goldsmith said, “Before I arrived in O.L.C. [the Justice Department’s Office of Legal Counsel], not even NSA lawyers were allowed to see the Justice Department’s legal analysis of what NSA was doing.” Other senior NSA officials responsible for ensuring the probity of NSA’s domestic eavesdropping programs were also denied access to the Gonzales and Yoo legal briefs. In late 2003, two years after the programs began, NSA’s inspector general asked for permission to see the Justice Department legal brief authorizing the program, but his request was denied by David Addington.10
But of greater importance is that former NSA director Hayden, in trying to defend the legality of the program, has publicly stated that three of NSA’s top lawyers assured him in late 2001 that the agency’s domestic eavesdropping programs were legal. One has to wonder how NSA’s Office of General Counsel could possibly have arrived at this conclusion if the agency’s lawyers could not see the documents that served as the legal underpinnings for the programs. Past and present NSA officials interviewed for this book, while refusing to comment specifically on the legality of the agency’s domestic eavesdropping programs, confirmed that key NSA operational personnel were never permitted to see these documents, a fact that gave a number of senior NSA officials more than a little cause for concern.11.
One of the most controversial aspects of the NSA program has been the nagging question of how many people have had their telephone calls and e-mails monitored by NSA since the program commenced after 9/11. The New York Times’ December 2005 article indicated that the answer was “hundreds, perhaps thousands, of people inside the United States.” According to anonymous government officials quoted by the reporters, NSA “eavesdrops without warrants on up to 500 people in the United States at any given time . . . Overseas, about 5,000 to 7,000 people suspected of terrorist ties are monitored at one time.”12A Washington Post article, citing “two knowledgeable sources,” claimed that the number of Americans monitored by NSA was as high as five thousand people between 2001 and early 2006.13 But U.S. government officials, including Hayden, denied that the number of people being monitored by the agency was anywhere near this large. In an August 2007 interview with the El Paso Times, the director of national intelligence, Admiral Mike McConnell, said that the number of NSA eavesdropping targets inside the United States was “100 or less. And then the foreign side, it’s in the thousands.”14
Regardless of the number of American citizens actually monitored since the NSA warrantless eavesdropping program began seven years ago, a number of former NSA officials have expressed concern that the number of targets inside the United States reportedly being monitored appears to be overly large when compared with the actual threat, given that there have been no terrorist attacks in the United States since 9/11, nor any high-profile arrests of al Qaeda “sleeper cells” or operatives. These officials then wonder how so many individuals in the United States could conceivably have been under active surveillance by NSA over the past seven years with virtually no arrests or convictions to show for all the effort.15
There is as yet no evidence that the White House used NSA to target the communications of Americans for political purposes. But there are some worrisome signs that the agency’s SIGINT reporting may have been misused by some administration officials. In April 2005, a political controversy erupted in Washington when it was learned that the Bush administration’s nominee to be the ambassador to the United Nations, John Bolton, had requested from NSA transcripts of intercepted conversations involving or pertaining to other U.S. government officials while he was a senior official at the State Department. NSA admitted that it had made copies of these transcripts, including the names of the American officials involved, available to Bolton.16A few weeks later, the magazine Newsweek revealed that since January 2004 NSA had received between three thousand and thirty-five hundred requests for transcripts of intercepted communications involving American citizens from various U.S. government departments, four hundred of which came from the State Department. NSA complied with all of these requests. The article indicated that the names of as many as ten thousand Americans were contained in the intercept transcripts turned over to the various U.S. government agencies that had requested them.17It was later learned that Bolton, who became the interim ambassador to the United Nations, had personally originated ten requests since January 2004 for unredacted NSA intercept transcripts that mentioned the names of U.S. government officials or American citizens.18
Which raises the obvious question of whether the NSA warrantless eavesdropping programs have actually accomplished anything for the billions of dollars spent on them. In justifying the need for the warrantless eavesdropping programs, President Bush, former NSA director Hayden, and other senior administration officials repeatedly stressed that the program had delivered critically important intelligence, but naturally they have provided no details. All Hayden admitted is that the program “has been successful in detecting and preventing attacks inside the United States.”19By far the strongest defense of the program has come from former vice president Cheney, who in December 2005, while on a visit to Pakistan, told a reporter from CNN that it “has saved thousands of lives.”20
But to date, the only arrest of an al Qaeda terrorist in the United States that the NSA warrantless eavesdropping program supposedly was involved in was that of Iyman Faris, a thirty-eight-year-old truck driver in Columbus, Ohio, who was caught in March 2003 planning to destroy the Brooklyn Bridge, in New York City. A native of Pakistan but a naturalized American citizen, Faris pleaded guilty to helping al Qaeda plan terrorist attacks in the United States and in October 2003 was sentenced to twenty years in prison.21
Former U.S. intelligence officials have confirmed that Faris was identified as an al Qaeda “sleeper” based largely on data provided by NSA. The trail that led to him began just before dawn on January 9, 2003, when Pakistani police stormed a house in the upscale Karachi suburb of Gulshan-i-Maymar that belonged to a senior member of Jamaat-i-Islami, a Pakistani radical Islamic organization. The occupants of the apartment threw two hand grenades at the police. One went off harmlessly. The other failed to detonate because the man who threw it forgot to pull the pin. After a brief struggle, the police arrested and hustled away for interrogation two men— an Egyptian and a Yemeni. Under interrogation, both men admitted to being former al Qaeda fighters in Afghanistan who had fled to Pakistan after the U.S. invasion of that country. CIA and FBI officials who part
icipated in the interrogations of both men in Karachi identified the Egyptian, who told the police his name was Abu Umar, as a senior deputy to Ayman al-Zawahiri, Osama bin Laden’s Egyptian-born deputy. The assault on the apartment had resulted from NSA’s intercepting satellite phone calls coming into the apartment from al Qaeda operatives throughout the Middle East. Seized in the raid were more than thirty thousand dollars in cash and Abu Umar’s satellite phone, which, when its data was downloaded, proved to be a treasure trove of intelligence for the CIA.22
From the calling data contained in the phone’s memory, NSA was able to determine that a senior al Qaeda leader was operating somewhere in the vicinity of the Pakistani city of Rawalpindi. In February 2003, intercepted e-mails and satellite telephone communications led U.S. and Pakistani security officials to the hideout in Rawalpindi of the al Qaeda mastermind of the 9/11 attacks, Khalid Sheikh Mohammed. At four a.m. on March 1, heavily armed Pakistani security forces burst into Mohammed’s hideout and arrested him and another key al Qaeda operative, Mohammed Ahmed al-Hawsawi. A former NSA intelligence analyst confirmed that Faris was identified as an al Qaeda sleeper in the United States based on data downloaded from Khalid Sheikh Mohammed’s cell phone and laptop computer seized in the raid.23
Despite the identification and arrest of Faris, a number of former U.S. intelligence officials disagree with statements emanating from the White House about the “vital importance” of the NSA warrantless eavesdropping program, believing that these statements grossly overstate its actual accomplishments.
Details are admittedly lacking, but a few former intelligence analysts have hinted that the program has been useful in helping stop a number of terrorist attacks overseas, but there appears to be little evidence of major successes against al Qaeda or other terrorist organizations inside the United States since 9/11. When asked for his impression of the value of the eavesdropping program, a recently retired senior CIA official stated, “We spent a ton on the [NSA] program, but got back very little in the way of solid returns . . . I don’t think it was worth the money.”24
Then there is the equally contentious issue of what role America’s largest telecommunications companies played in assisting NSA. The first hint that these companies had assisted the agency’s warrantless eavesdropping effort appeared in a follow-up December 2005 Times article by Eric Lichtblau and James Risen, which reported that “the NSA has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domes-tic and international communications.” According to the article, this vast pipeline of raw telephone and e-mail data was being systematically combed by NSA analysts using the agency’s data-mining software “in search of patterns that might point to terrorism suspects.”25
In May 2006, the next bombshell hit when USA Today revealed that a number of the largest American telecommunications companies, including AT&T, MCI, and Sprint, had closely collaborated with NSA in the warrantless eavesdropping program. Only Qwest, the nation’s fourth-largest telecommunications company, had refused to participate in the program, despite repeated requests by NSA. At about the same time, an AT&T technician revealed that the telecommunications giant he worked for had allowed NSA to place eavesdropping equipment inside its network switching centers in San Francisco and Atlanta, through which much of America and the world’s e-mail traffic passes. This may, in fact, be the tip of the iceberg, since a number of key American telecommunications companies other than AT&T have refused to answer questions from reporters about whether they too cooperated with NSA’s domestic eavesdropping effort.26
Of what little is definitively known about what the telecommunications companies did on behalf of NSA is that they refused to cooperate without a letter from the U.S. Justice Department assuring them that their efforts on behalf of NSA were proper and legal. This exact situation had played out fifty-six years earlier when, in August 1945, NSA’s predecessor, the Army Security Agency, asked America’s “Big Three” cable companies to give it access to all international telegraph traffic coming in and out of the United States as part of a Top Secret program called Shamrock. The U.S. Army knew from the outset that the program was highly illegal and dangerous, but senior military officials concluded that the risks were worth it to get at the raw traffic.27Under extraordinary pressure from Washington, the cable companies reluctantly agreed to cooperate, but only if the U.S. government would immunize them against any civil or criminal actions if the operation was uncovered. But back then, the U.S. government could find no way to give the companies the legal protection they were demanding without new legislation, which would have required telling Congress what they were up.28
But unlike this Cold War attempt at domestic eavesdropping, the telecommunications companies this time got what they wanted. Assistant Attorney General Kenneth Wainstein, testifying before Congress on October 31, 2007, admitted, “There were letters that went out to these companies that said very forcefully this is being directed, this is directed by the president, and this has been deemed lawful at the very highest levels of the government.” None of the letters sent to the companies have been released, but a number of Washington-based attorneys familiar with the matter confirmed that the letters exist and serve as the companies’ chief legal defense against the charge that they violated state and federal laws.29A Washington-based official representing one of the companies confirmed that his client has in its files almost seven years of accumulated correspondence from the Justice Department assuring the company that its cooperation with NSA was legal and proper, with a new letter arriving from Washington every forty-five days reiterating that the company’s work on behalf of the U.S. government continued to be required.30
Naturally, the telecommunications companies will neither confirm nor deny their participation in the NSA program, but AT&T and the other companies have repeatedly stated that as a matter of policy they cooperate with all lawful requests made of them by U.S. law enforcement agencies. The companies have furiously fought in the courts attempts by state regulators and private citizens to determine if they improperly provided NSA with calling information for their customers. They have also lobbied intensively, with full White House support, to have Congress immunize them from any civil or criminal liabilities that may have extended from their participation in the NSA domestic eavesdropping program. 31
But questions have mounted among NSA officials because of the strenuous efforts by the Bush administration to persuade Congress to grant retroactive immunity from both civil suits and criminal prosecution to all of the American telecommunications companies that have participated in NSA’s domestic eavesdropping programs. The problem was that until October 2007 the White House would not tell Congress what the companies had done as part of the programs, so Congress was placed in the surreal position of being asked to give complete immunity to the telecommunications companies without knowing what it was that they had done.32
Then, to the shock of many, in October 2007 the House and Senate intelligence committees, now controlled by the Democrats, bowed to White House pressure and intense lobbying by the telecommunications companies and, after being given limited access to classified documents concerning the role played by the companies in the NSA domestic eavesdropping effort, approved a proposal to give the companies the full immunity they wanted. The immunity deal was approved by Congress in 2008.33
Former NSA officials believe that just as with the ASA Shamrock program of the Cold War, the telecommunications companies knew that what they were doing was illegal from the very beginning. As one NSA retiree put it, “why then would they need immunity if what they did was legal?” After reading a spate of newspaper reports on the subject, a disgusted NSA official said, “They keep trying to give the telecoms a ‘Get Out of Jail Free’ card. That tells me there is something illegal about what the companies have been doing. [The immunity deal] stinks to high heaven.”34
But Is It Legal?
Much of the debate since the first New York Times article came
out in December 2005 has focused on the legality of the NSA warrantless domestic eavesdropping program. Its legal ramifications are immense and of enormous consequence for every American.
At the center of this debate are a number of still-classified legal briefs written by then–White House legal counsel (and subsequently Attorney General) Alberto Gonzales and Justice Department lawyer John Yoo, which served as the legal rationale and underpinning of the NSA program. Gonzales, who authored one of these Top Secret documents, eventually disclosed that the central argument of his brief, and of Yoo’s brief, is that in time of war there are, in his opinion, no restrictions on what the president of the United States can or cannot do in the name of national security. Gonzales’s and Yoo’s legal briefs essentially argue that the president’s expansive wartime powers gave him the authority to bypass the Foreign Intelligence Surveillance Court and order NSA to conduct warrant-less surveillance operations without reference to the FISC. In essence, the briefs argue that the president’s wartime powers trump the Fourth Amendment of the Constitution, which is supposed to protect Americans against unwarranted searches and seizures. This interpretation of the president’s war powers also served as the legal justification for the CIA’s highly sensitive counterterrorist intelligence-gathering effort referred to within the U.S. intelligence community solely by the initials “GST.”35
The problem is that these legal briefs fly in the face of over two hundred years of this nation’s constitutional case law, which has found that even in time of war there are indeed constitutional limits on the powers of the presidency. The American Bar Association and a host of prominent American constitutional scholars from all political denominations have argued that there is no court decision or legal precedent that supports President Bush’s contention that his constitutional authority allows him to override or disregard an act of Congress or the Constitution. This argument was laid out in a lengthy February 2, 2006, let-ter to Congress written by fourteen distinguished constitutional law scholars, including Harold Hongju Koh, the dean of Yale Law School, and the former heads of the Stanford and University of Chicago law schools, who wrote,
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