Even while the NSA was secretly violating FISA, Congress was being advised openly that the NSA should be finally free of restrictions on mass surveillance in an age of terrorism. Making that argument was William Barr, a former attorney general turned general counsel of Verizon, which would become one of the NSA’s critical telecom partners. Barr contended that notwithstanding the PATRIOT Act’s necessary erosion of FISA, the statute remained “too restrictive in a fundamental respect”: requiring probable cause to connect an individual to a foreign power. (That would prove to be an ironic objection twenty years later.) FISA decreed that judges had authority over national-security surveillance, but Barr argued that surveillance was a decision “judges are not competent to make or responsible for making under the Constitution.” When it came to obtaining a suspected terrorist’s records, it was absurd that any judicial process existed at all. “Foreign terrorists should not get rights that no one else in the country has,” he told the House Intelligence Committee. For good measure Barr recommended that Congress strengthen immunity protections for “officers involved in domestic security.”
One aspect of STELLARWIND contributed to a dramatic showdown between the Security State and the Bush administration. The deputy attorney general, James Comey, and Yoo’s replacement at the Office of Legal Counsel, Jack Goldsmith, considered STELLARWIND’s bulk collection of Americans’ internet records to rest on an untenable legal foundation. In March 2004 Comey, acting as attorney general while Ashcroft underwent gallbladder surgery, refused to recertify STELLARWIND for an additional forty-five days, prompting senior White House officials to race to Ashcroft’s hospital bed. Comey and Goldsmith did the same. Ashcroft, deeply unwell, supported Goldsmith. The Justice Department prepared for mass resignations—including those of FBI director Robert Mueller and the criminal division chief, Christopher Wray—as Comey warned Bush that the public would “freak out when they find out what we have been doing.” Addington called Hayden and asked if the NSA would continue the bulk collection of internet metadata anyway. Hayden promptly answered that he would.
The denouement of the episode was that the surveillance was preserved. It was easy to overlook that what bothered Comey, Goldsmith, Mueller, and others was not the bulk interception but the poor lawyering supporting it. “Immediately,” records the NSA internal history of the episode, NSA and Justice Department attorneys began working “to recreate this authority.” They shoehorned the bulk internet collection into FISA, citing references in it for methods of intercepting outgoing electronic communications—a pen register—and for collecting incoming ones—a trap-and-trace device. The attorneys persuaded themselves, and by July persuaded chief FISA Court judge Colleen Kollar-Kotelly, that STELLARWIND’s interceptions were methodologically similar enough that the law could overlook the stark difference between specified and bulk interception. “The order essentially gave the NSA the same authority to collect bulk internet metadata,” the NSA history reads. Hayden accurately observed that “on the core issues” Kollar-Kotelly had “broadly gone with the White House (and Justice’s pre-March) view.” They had not made the War on Terror respect the law. They had made the law respect the War on Terror. Such a simulacrum of law was termed the “state of exception” by the Italian philosopher Giorgio Agamben: “The normative aspect of law can thus be obliterated and contradicted with impunity by a governmental violence that—while ignoring international law externally and producing a permanent state of exception internally—nevertheless still claims to be applying the law.”
Hayden demonstrated the meaning of the state of exception a year after activating STELLARWIND. On October 17, 2002, Tenet, Mueller, and Hayden were called to testify before a congressional inquiry into how the Security State could have allowed 9/11 to happen. Tenet raged against what he considered a political show trial; Mueller, who as a new director was subject to none of the political danger Tenet faced, soberly pledged improvement. Hayden, instead, lectured Congress to do its constitutional and democratic post-9/11 duty. “What I really need you to do is talk to your constituents,” Hayden implored, “and find out where the American people want that line between security and liberty to be. In the context of NSA’s mission, where do we draw the line between the government’s need for counterterrorism information about people in the United States and the privacy interests of people located in the United States?” If “we fail” to draw the line in the right place, Hayden concluded, “then the terrorists win and liberty loses in either case.” The director spoke as if he had not been drawing that line in secret for an entire year, as he would continue to do for three years to come. As long as he did, whatever national deliberation about freedom and security emerged in a post-9/11 world would be no more than a simulacrum of democracy.
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THE TRIUMPHALISM OF THE WAR on terror stood in conspicuous contrast with its lack of interest in its first actual battlefield. Having ruled out diplomacy—Bush refused to “negotiate with terrorists”—about 100 CIA officers, joined by 350 Special Operations forces, entered northern Afghanistan with $70 million in cash to rent the anti-Taliban Northern Alliance army. With American bombers overhead, the Taliban that had sheltered al-Qaeda fled Kabul for its Kandahar stronghold in November. Footage of jubilant Afghans shouting praise for the United States for ending an oppressive regime filled cable news. Bush portrayed victory as inevitable. Only a few mop-up operations remained.
The truth was that the most powerful military on earth was still built for armored combat against national armies and had little idea what to do in a war it had not expected. Neither Defense Secretary Donald Rumsfeld nor Central Command’s General Tommy Franks wanted a large ground force to police Afghanistan, which they considered a job for lesser nations. Its elite forces were similarly unprepared. A PowerPoint presentation to the White House from the commander of the Joint Special Operations Command (JSOC)—an elite military entity that would prove crucial to the War on Terror—prepared an “outside the box” option, according to the reporter Sean Naylor: “Poisoning Food Supply.” A White House staffer had the sense to remove the slide recommending that Bush commit war crimes.
As December began, the Northern Alliance and U.S. forces closed in on Kandahar. The Taliban, having vowed to stand and repel the invaders, prepared terms. They would surrender and demobilize if their leader, Mullah Mohammed Omar, could remain in Kandahar under some negotiated supervision. The United States–designated Afghan leader, Hamid Karzai, moved to secure the opportunity to end the combat before it turned into guerrilla warfare. Rumsfeld instead called a “negotiated end” to the standoff “unacceptable to the United States.” More than four thousand marines under the command of a one-star general named Jim Mattis were on their way.
As a predictable consequence of the United States’ defining its enemy broadly, its focus on ousting the Taliban and installing a new Afghan regime allowed Osama bin Laden and al-Qaeda to flee. This cost the United States its first chance to win the War on Terror, to the degree the war’s conceptional flaws allowed such a possibility.
During the anti-Soviet jihad, a warren of tunnels had been cut through the Tora Bora mountain complex near Jalalabad, sometimes extending as far as 350 yards into its granite. Despite elevations reaching thirteen thousand feet, the area was intimately familiar to bin Laden. He had brought his family’s construction equipment to maintain it; one account has him designing its hydroelectric generators. Not only was it the most likely place in Afghanistan to withstand U.S. airpower, but the tunnels emptied onto the southern slope of the mountains in Pakistan. The CIA was also familiar with the tunnels, as Langley had helped finance their construction.
Beginning in December, B-52s rained fire hourly on Tora Bora, yet the mountains absorbed the blasts. The CIA and the JSOC had a force of twenty-five hundred Afghans, who had been conscripted by three warlords, but reasoned they needed substantial American infantry. Bin Laden’s highly motivated men, variously
estimated at eight hundred to three thousand fighters, held advantageous positions. They launched “nonstop” small-arms fire to repel their attackers, CIA field leader Gary Berntsen recalled in his memoir. But the CENTCOM commander, General Tommy Franks, rejected Mattis’s request to divert from Kandahar to Tora Bora. Berntsen witnessed the “gruesome scene” of the first day of fighting, which concluded with thirty Northern Alliance fighters dead and fifty wounded, and requested an Army Ranger battalion that never arrived. Berntsen’s ally at CIA headquarters, Hank Crumpton, warned Bush personally that without the marines, bin Laden would escape. Bush backed Franks anyway.
Even if it were a political possibility to invade Pakistan, the Afghan triumvirate concluded that the December snow made it impossible to trek to the southern slope of the mountains to cut off bin Laden’s escape. The warlords were in touch with al-Qaeda to arrange a cease-fire on December 12, which bought the group time to flee, with bin Laden remaining behind until the sixteenth to oversee the exfiltration. The CIA, which learned of the cease-fire after the fact, blamed the Afghans. Bush, having once vowed to get bin Laden “dead or alive,” now insisted that he “truly was not that concerned about him.” In February 2003, bin Laden released an audiotape on which he said with a laugh, “Planes poured their lava on us, particularly after accomplishing their main missions in Afghanistan.” Rather than concluding the war three months after 9/11, all the United States gained from Tora Bora were prisoners.
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CIA GUARDS ENTERED Gul Rahman’s cell in the predawn hours of November 2002 to discover that he had frozen to death during the night. The room in which he was being held was part of an unacknowledged prison in Afghanistan known as the Salt Pit. During the three weeks after Rahman had been seized in Peshawar on suspicion of knowing something about jihadis, the CIA contorted his body in painful “stress” positions, kept him naked or diapered, and doused him with cold water. His corpse was shackled to the wall and naked below the waist—retribution for what the CIA considered his obstinacy during an earlier interrogation.
Days earlier Bruce Jessen, a psychologist who had been dispatched by the unit within the CIA’s Counterterrorism Center that handled al-Qaeda analysis, had departed the Salt Pit. He had provided the staff with instructions for interrogating Rahman. Along with a colleague, James Mitchell, Jessen had recently designed a regimen to reduce a human being to his biological essence. Now that regimen had killed a man.
They had found their first test subject months earlier. A man known as Abu Zubaydah, suspected of being of being the “third or fourth man” in al-Qaeda, was captured in Pakistan after sustaining gunshot wounds through his leg, stomach, and testicles. He was revived in custody, where the CIA obstructed a bedside FBI effort to establish rapport with him, opting instead to use him as a guinea pig at a black site in Thailand. The two psychologists wanted to test inducing “learned helplessness,” a traumatic reaction to acute and sustained physical and emotional distress. They proposed locking Abu Zubaydah in a coffin-sized box, and an even smaller “confinement space,” and filling the boxes with insects, denying him sleep by keeping his body contorted in painful positions, and inducing the terrifying sensation of drowning, a technique favored by North Korea called “waterboarding.” One of the FBI interrogators, Ali Soufan, urgently called the Hoover Building, vowing, “I swear to God, I’m going to arrest these guys.”
Instead the fastidious Mueller ordered Soufan and a colleague out of Thailand. Mueller’s allies portrayed that gesture as a protest. It amounted to the FBI averting its gaze from years of CIA brutality, sexual assault, and even manslaughter to come.
Years later, in military custody, Abu Zubaydah recalled experiencing “almost forty seizures” induced by the anxiety of imprisonment at the CIA’s Thailand black site. Specifically, his condition peaked as a result of the agency’s refusal to grant him access to a diary he had kept for over sixteen years, which he claimed could “refute the accusations against me.” At least 118 others would follow Abu Zubaydah into the black sites, where there was no law, no one to whom they could plead their case, no one to convince a terrible mistake had been made, no one to investigate, no one to determine the truth. There was only what their captors decided. His inability to challenge his brutalizers’ judgment of him was, to Abu Zubaydah, “another form of torture.”
So was the nudity to which the CIA subjected Abu Zubaydah. “I think you know how much it is bad for us as Muslims,” he later told a military panel, particularly as he was bleeding from the wound that cost him a testicle. Already humiliated by his nakedness, “they put me in . . . a medical bed. They shackle me completely, even my head; I can’t do anything. Like this and they put one cloth in my mouth and they put water, water, water.” Between dousings, Abu Zubaydah heard his captors mock him by gasping in imitation. “Again and again, they make it with me,” he said, “and I tell him, ‘If you want to kill me, kill me.’ ” By the ninth day of his torture, some of his interrogators were convinced that he had no actionable intelligence; four years later, the CIA concluded he was not even a member of al-Qaeda.
About two months after Jessen left Abu Zubaydah to the other interrogators’ mercies in Thailand, he arrived at the Salt Pit in Kabul. He had not been given explicit instructions to administer the same sort of treatment to Rahman, but there was little other reason the Counterterrorism Center sent for him. CIA headquarters soon received notification via cable that Salt Pit interrogators had subjected Rahman to “48 hours of sleep deprivation, auditory overload, almost total darkness, isolation, a cold shower, and rough treatment.” Headquarters staff quickly responded by approving “enhanced measures” to “extract any and all information” from him. They appeared not to have anticipated the prospect of those methods killing their quarry, despite the likelihood of hypothermia when keeping a man naked and chained in prolonged cold.
Jessen and Mitchell had been air force psychologists experienced in instructing captured airmen how to survive and evade torture. Now they were CIA contractors tasked with designing and administering techniques of physical and psychological brutality. It made them rich: Langley paid out $81 million to their enterprise over the better part of seven years.
The psychologists adopted a grandiose view of the men they abused, and, by implication, themselves. Mitchell, in his memoir, presented them as the defenders of a faith he delighted in dominating. He “looked into the eyes of the worst people on the planet,” and “heard their eagerness to convert or kill millions of people in the process. . . . Islamists who, driven by Iron Age religious beliefs, seek to convert, enslave, or slaughter everyone on the planet who does not believe as they do.” Mitchell described Abu Zubaydah possessing the “dignity and grace of a caged cat, similar to the way Star Wars fans might imagine a Jedi Knight would carry himself if held captive by his enemies.” Traditional methods of interrogation stood no chance against the Jedi of the Iron Age.
The CIA did not possess an interrogations cadre before 9/11. But it had what it understood as a mandate from Congress and Bush for “the gloves [to] come off,” as its counterterrorism chief, Cofer Black, told the joint congressional inquiry. It remains unclear, twenty years later, how exactly it came to rely specifically on Mitchell and Jessen, but their project was clearly amenable. As Tenet indicated before the inquiry, the CIA felt most acutely vulnerable to the political argument that it would be blamed for any future attack. The psychologists assured Langley that their targets were eschatological genocidaires. Such encouragement was likely not necessary, but it carried the benefit of valorizing the brutality. In their view, not to torture was a dereliction, a moral vanity that gambled with the lives of those the CIA sought to protect.
Rahman’s frozen corpse did not derail the CIA’s plans. Its use of torture had progressed past the stage of a pilot program. Internal cables document the extreme discomfort and objections of interrogators and medical staff. But barely two months after the CIA
killed Rahman, Tenet institutionalized torture. The CIA could use several of the psychologists’ techniques, including “isolation, sleep deprivation not to exceed 72 hours, reduced caloric intake . . . deprivation of reading material, use of loud music or white noise (at a decibel level calculated to avoid damage to the detainee’s hearing), the use of diapers (generally not to exceed 72 hours).” He operated on the theory that standardizing the brutality within layers of directives, legal approval, and the presence of medical officers would render torture safe—an absurd concept for the men subjected to it, but certainly safer for the CIA in the coming legal and political battles its leadership anticipated as inevitable.
Tenet put a Counterterrorism Center component, then known as the Renditions Group, in charge of the entire apparatus of torture, including maintenance of its secret foreign locations, loaned out by partner governments and intelligence services; the construction of legal indemnities by its lawyers; the instruction of interrogators; the dispatch of medical personnel; and the coordination of the “intelligence” obtained. When possible, the CIA preferred its partners do its dirty work, and sent captives to the prisons of eager contractors like the Mukhabarats of Hosni Mubarak’s Egypt, Bashar al-Assad’s Syria, and eventually Moammar Qaddafi’s Libya. Michael Scheuer, the founder of the CIA’s Usama bin Laden Unit, was an architect of renditions before 9/11. By the time of the attacks, Scheuer, an irascible man who had been sidelined from the unit in 1999, lamented that the United States was unlikely to divest its empire. That left it with no choice but to wage a war it had best fight with maximum brutality, including against civilians.
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