Reign of Terror

by Spencer Ackerman

  Another argument from the NSA’s defenders was more profound. “Bulk collection” was not surveillance, contended Alexander, Clapper, and their allies. Surveillance occurred not when someone’s search history, Fitbit records, or webcam imagery made their way into the NSA’s data troves, but only when one of the intelligence agencies actually searched through them for patterns. It was the same distinction Mike Hayden had attempted at the dawn of STELLARWIND, now hardened into NSA dogma. Even more euphemistically, the NSA described the purely domestic internet communications its surveillance captured as “incidental,” a term suggesting that such collection was inadvertent, rather than a cost of doing business. Bates secretly found in 2011 that “tens of thousands of wholly domestic communications” made their way into UPSTREAM collection by what an intelligence official later told reporters was an unavoidable result of the way the surveillance was architected.

  Lurking within the redefinition was the seed of an honest statement about twenty-first-century digital surveillance. Clapper and his allies insisted that actual U.S. surveillance, particularly under Section 702, was still a targeted process. NSA and its partner agencies mined their massive data sets for specific patterns, specific activities, specific connections to specific people. But those searches required assembling those massive data sets. “It’s like finding a needle in a haystack. If you have to—the terrorist being the needle,” insisted Ruppersberger. “And if you need to find those terrorists throughout the world, you have to have the haystack.” Indeed, replied Alexander’s deputy, Chris Inglis, “It needs to be the whole haystack. As you comprise this and you put it together, it needs to be such that when you make a query, you come away confident that you have the whole answer.”

  Intelligence officials resisted congressional oversight even as they publicly cited it as one of the reasons why their surveillance was less alarming than it appeared. From their perspective, they had stayed within the framework Congress set with Section 702; and since May 2006, the domestic phone records collection had received FISA Court approval. All the democratic consent they needed came through the congressional intelligence committees or, when necessary for the most sensitive surveillance endeavors, the congressional leadership council known as the Gang of Eight. A significant portion of the public, horrified by the Snowden revelations, considered the arrangement a self-serving simulacrum of consent. That summer Alexander was heckled at a Las Vegas hacker conference by someone yelling “Freedom!” The general was left to insist, “Exactly, we stand for freedom,” as shouts of “Bullshit!” erupted. During Alexander’s retirement send-off the following spring, Clapper called the crowd “Eddie Snowden supporters.”

  Manning’s disclosures inflicted a flesh wound to the Security State. Snowden’s induced a coronary. The NSA, which styled itself the master of the internet, had somehow neglected the reality that, as Snowden wrote in his memoir, “the computer guy knows everything, or rather can know everything.” Constructing a digital panopticon required, as a matter of technical necessity and economic interest, outside contractors like Snowden. Making the system work better required giving the Snowdens of the apparatus expansive administrator privileges. Security-state tribalism would prevent the emergence of very many Snowdens (and Mannings); fidelity to their mission did as well. But one Snowden had been catastrophic, and despite the rise of so-called “insider threat” detection efforts, there could be no way to screen out every potential Snowden if the surveillance apparatus was to continue to exist. For all these reasons, the Security State needed Edward Snowden in custody and made a far more fearsome example of him than it had of Manning. It also needed to assert and explain that he was motivated by something more sinister than freedom.

  It had its narrative handed to it by circumstance. With the help of the WikiLeaks staffer Sarah Harrison—WikiLeaks was aligned with Snowden over the NSA documents, whatever Snowden’s discomfort with Assange—Snowden attempted to fly to Ecuador in pursuit of asylum. He never made it out of a layover in Moscow. The United States, after vainly sending an extradition order to the Hong Kong authorities, canceled his passport, leaving him stranded—as it turned out, in the last place Washington wanted him. As his stay extended for six weeks in Sheremetyevo Airport, where he explained to an FSB officer that he was not going to cooperate with Russian intelligence, the United States and its allies went to extremes. They forced Bolivian President Evo Morales’s plane to reroute on the false suspicion he was smuggling Snowden to asylum. Russian president Vladimir Putin, handed a delicious opportunity by his hapless American adversaries, granted asylum to Snowden instead.

  Snowden had insisted consistently that he took no NSA documents out of Hong Kong, so they could not have fallen into Russian intelligence’s possession. It made no difference. The fact that he was in Russia, even if he was there despite his intentions, was enough to portray him as a Russian asset. John Schindler, a conservative NSA veteran who became a chief Snowdenista antagonist on Twitter, explained that by definition, Snowden’s flight into Moscow ought to be understood as a defection. It reflected the the Security State’s inability to comprehend what Snowden had done outside of a framework of espionage. The fallback response was to mock Snowden, of all people, for his naïve understanding of the internet. On this theory every internet user knew or ought to have known that they consigned themselves to corporate and government surveillance, and made this bargain knowingly, and weren’t just clicking accept on a terms-of-service agreement they didn’t bother to read.

  It was hard to square the argument with the other one they needed to make against Snowden, which was that the surveillance wasn’t that intrusive. Some liberals preferred to imply Snowden was a “paranoid libertarian” crypto-rightist, as Princeton’s Sean Wilentz did in The New Republic. To their left, even allies like Wyden kept Snowden at arm’s length while attempting to legislate against the abuses Snowden exposed. “When there is a criminal charge—and here you’re talking about espionage—I don’t get into making comments,” Wyden said about Snowden. An exception was Bernie Sanders. While there was “no question that he committed a crime,” Sanders told CNN, Snowden “has gone a very long way in educating the people of our country and the people of the world about the power of private agency in terms of their surveillance over people of this country, over foreign leaders, and what they are doing.” Sanders was a rare voice calling for “some form of clemency” for Snowden.

  The NSA would retain far more than it lost. Two years after Snowden’s leaks, a watered-down compromise between Obama, the NSA, and the Hill resulted in a ban on the bulk collection of domestic phone records, though the new measure still gave the NSA access to what would turn out to be extraordinary amounts of call records held by the telecoms. The tech giants disclaimed responsibility for PRISM—“the government blew it,” Mark Zuckerberg insisted, whatever that meant. A strained relationship with Silicon Valley could not derail the NSA’s bulk internet surveillance, since Section 702 made it compulsory pending the FISA Court’s approval of the NSA’s methodology. Meanwhile, surveillance capitalism in Silicon Valley and far beyond, so symbiotic with bulk surveillance, continued unimpeded. But the NSA no longer looked invulnerable. Exposed from within, it appeared fearful.

  A great number of Americans would never be persuaded that Snowden’s revelations were anything other than a hostile foreign machination. But that perspective conspicuously failed to recognize how dramatically Snowden’s odyssey encapsulated that of much of the 9/11 generation. Snowden started out wanting to help his country win the war. Exposure to it only convinced him that its most important weapon had to be disarmed if his country was to remain the country he recognized. It turned out not to be Edward Snowden’s country after all.

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  IN DECEMBER 2014 CLAPPER warned the Senate intelligence committee of imminent violence from outraged Muslims. Uprisings, fueled by dire accounts of American brutality, were likely, the Office of the Director of
National Intelligence (ODNI) assessed, as was damage to crucial intelligence partnerships worldwide. It was a familiar prediction after thirteen years of Forever War. Committee members often made it themselves, especially when, as with Snowden or Manning, information inconvenient to the war emerged. This time they were its target.

  The committee did not expect to find itself in this position. Six years earlier the panel had begun investigating CIA torture and found that the agency had lied about it so relentlessly as to create an alternate reality. Committee Democrats, though inclined to support the intelligence agencies, were preparing to expose the CIA’s false narrative. For this the CIA and its allies had treated their congressional overseers like the enemy: not only spying on them but making the counteraccusation that they, in their mendacity, had spied on it, down to making a frivolous demand that the Justice Department prosecute the committee’s lead investigator. It was a desperate lie to protect an edifice of even more desperate lies. Now, to top it off, the intelligence agencies delivered a threat: if the Senate declassified its torture report, it could have blood on its hands.

  It wasn’t only the Security State claiming this. The Obama White House backed the CIA over the Senate. Kerry, now secretary of state, told his old Senate colleagues that releasing their report could fracture the renewed war against jihadists in Iraq. But Clapper undercut whatever credibility Kerry’s message carried. The breathlessness of ODNI’s warnings made the CIA’s mischaracterizations of the sixty-seven-hundred-page report conspicuous, as when it falsely said the committee identified the countries that hosted CIA black sites. “It was a poorly done intelligence product with clear factual errors and it inaccurately described the study we were about to release,” remembered West Virginia’s Jay Rockefeller. When the lead Senate torture investigator, Daniel Jones, pointed out the assessment’s falseness, he remembered his ODNI interlocutor replying: “It doesn’t matter what’s in the report. It matters what people think is.”

  Jones was accustomed to such behavior by now. In a basement CIA satellite office in northern Virginia, sifting through the torture program’s internal documentation, he came to understand that the agency had constructed a Big Lie, one that didn’t have to be consistent. Under the pro-torture Bush, the CIA asserted that torture worked. For the anti-torture Obama, the agency modified its position to argue that no one could know for certain that torture didn’t work. Fundamentally it was an American exceptionalist fable about valiant Americans who did messy things to dangerous people—or people who could have been dangerous—in order keep their countrymen safe, the premise of 24. Conservative and centrist politicians embraced the fable, making martyrs of torturers along the way, and progressive politicians had to weigh the political costs of challenging it. But the rigor of Jones’s investigation, along with the brazen overreach of the intelligence agencies, put Senate Democrats in the uncomfortable position of refuting the Big Lie.

  Like Manning and Snowden, Jones started out as a member of the Security State. His patriotic post-9/11 journey led him to the FBI, where he worked as a counterterrorism analyst for four years before joining the Intelligence Committee staff. By then the committee had learned from The New York Times—not CIA director Hayden or his predecessor Goss—that back in 2005, senior CIA officials Jose Rodriguez and Gina Haspel had destroyed over ninety videotapes documenting the torture of Abu Zubaydah and Abdul Rahman al-Nashiri. The committee assigned Jones to investigate Hayden’s claim that the agency’s voluminous record-keeping ensured that Rodriguez and Haspel hadn’t destroyed evidence of a crime. Poring through accounts from the Bangkok black site, the one Gina Haspel briefly ran, Jones discovered the reality concealed by the CIA’s “enhanced interrogation” euphemism. Nothing that had already leaked to the press about torture was as graphic as the cables describing Abu Zubaydah’s becoming catatonic from waterboarding to the point that bubbles formed from the water still in his open mouth, being locked in a coffin for 266 hours, or obeying his torturers like a dog when they snapped their fingers. All of it had been concealed even from the classified offices of the Senate overseers. “Everything that we were told was basically the opposite of what happened,” he remembered. Jones, an institutionalist compared to Snowden and Manning, never considered slipping his findings to reporters, let alone WikiLeaks.

  In March 2009 the committee nearly unanimously expanded Jones’s investigation to the entire CIA torture program. With Leahy’s truth and reconciliation commission proposal dead, the panel was now the sole venue for looking back. But the cost of GOP support was to exclude the Bush administration from Jones’s purview. What Langley did would be viewed outside the context of what Cheney, Addington, Yoo, and others had demanded and facilitated. But as Jones began his broader work, Holder inadvertently complicated it. Durham’s criminal investigation meant the CIA would not grant Jones interviews with key personnel, since they might incriminate themselves. It cost the investigation Republican support and planted the seeds of a CIA counterattack: Senate Democrats didn’t even bother talking to the CIA officials they railroaded.

  Chair Dianne Feinstein reached a deal with a nervous CIA director Panetta that spring. The CIA would provide the committee with a large cache of torture-relevant documents over a shared network drive in the classified CIA-controlled outpost. Only the agency’s IT people would have access to the committee’s digital work product. But as Jones pieced together the torture program, hundreds of documents the CIA placed on the Senate side of the drive would mysteriously disappear. Feinstein enlisted White House mediation, but still the documents went missing. That would remain in the back of Jones’s mind when he discovered on the network a pivotal document.

  The CIA had secretly compiled for Panetta a one-thousand-page narrative history of the torture program. It came to many of the same conclusions that Jones’s team had. Not only was the brutality worse than anyone outside Langley was aware of, not only was it useless for developing intelligence, but the uselessness and the brutality locked the agency into lying about it. “It has thirteen findings. And one is, basically, they provided inaccurate information to support the use of EITs [torture],” Jones said.

  But by spring 2013 Brennan was finally running the CIA, the institution to which he had devoted his life, and Brennan rejected Jones’s findings. In particular, it was “flawed” for Jones to conclude that torture hadn’t produced “unique intelligence” and that the CIA “deliberately misrepresented” the program. The CIA’s official response flatly contradicted what the committee called the Panetta Review. Jones had noticed early on that senators were looking past the Big Lie. “I thought that’s what people would be taken with—holy shit, we’ve been sold a bill of goods. But what they were really taken with was the brutality.” Jones remembered the documents vanishing from his supposedly firewalled network, as well as the fact that his inquiry only existed because Rodriguez and Haspel had ordered the torture footage destroyed. One summer night, Jones snuck printed portions of the Panetta Review into his bag and, in violation of the Senate’s agreement with the CIA, left the outpost. He drove to the Senate and locked the Panetta Review in a committee safe.

  It remains a mystery, even to Jones, how the Panetta Review got placed on the shared network—whether it was the work of a sympathetic CIA officer or simply a mistake. Investigators would not have known to ask for the review. Although by then she already had the copy Jones had ferreted out, Feinstein formally requested the document from the CIA around Thanksgiving 2013. But Brennan grew alarmed when her colleague Mark Udall referred to it publicly. Brennan hadn’t authorized its release, and negotiations over Jones’s conclusions had grown heated. It led the CIA to a fateful decision. With Brennan’s knowledge and approval to “use whatever means necessary” to determine how the Senate got the document, the agency surreptitiously bypassed the firewall to access Jones’s work. Breaking its deal with the Senate, the CIA spied on its overseers. A forensic unit called the Cyber Blue Team reconstructed the investiga
tors’ emails. Spying on a Senate oversight committee, a fateful move under any condition, prompted an inspector-general investigation. After Obama backed the CIA, Feinstein revealed the spying on the Senate floor and accused the CIA of creating a constitutional crisis. “CIA hacking into, you know, Senate computers, nothing could be further from the truth,” Brennan said in response. “I mean we wouldn’t do that.” A CIA attorney implicated in the torture program, Robert Eatinger, formally requested that the Justice Department open a case against Jones for espionage.

  It was an absurd attempt at intimidation—Jones was incapable of hacking the CIA—and it demonstrated panic at the agency. But the CIA effort backfired. The inspector general vindicated the Senate, even on the Jones accusation, and excoriated the agency’s “lack of candor.” Still, the White House continued to back Brennan on the central point: declassifying the torture report. Behind closed doors, it helped the CIA keep much of the narrative heavily blacked out. “We tortured some folks,” Obama acknowledged in August, but “it’s important for us not to feel too sanctimonious in retrospect.”

  The Senate released the report in December. The story the CIA had helped tell about torture paving the path to bin Laden, as with the agency-aided Hollywood thriller Zero Dark Thirty, was revealed to be a lie. One of Jones’s footnotes cited a 2011 document, “The Public Roll-Out,” indicating “the CIA sought to publicly attribute the UBL operation to detainee reporting months prior to the execution of the operation.” An entire annex rebutted a flurry of lies that Hayden had told the Senate during testimony on a single day in 2007.

  But the CIA’s resistance intensified. Brennan began a rebuttal press conference by narrating the 9/11 attacks for five minutes. After placing torture in the context of patriotic trauma, Brennan argued it was “unknowable” whether torture worked, meaning it was slanderous to call the CIA liars. Agency veterans, including Rodriguez and Hayden, went further in a book called Rebuttal. Senate Democrats were “almost street-like in their simplistic language and conclusions,” Hayden insisted. Brennan even convened a panel, led by ex–Indiana Democratic senator Evan Bayh, to undermine the inspector general’s conclusions about spying on the Senate. Brennan’s deputy, Avril Haines, who tended to advocate maximum constraint in the Sustainable War on Terror, accepted Bayh’s exonerating narrative.