Playing to the Edge: American Intelligence in the Age of Terror

by Michael V. Hayden

  The members were in an admittedly tight spot. They weren’t being asked to approve the program; they were being informed. They couldn’t talk to staff about it or even discuss it with other members. That said, I always viewed Rockefeller’s letter as a kind of political insurance policy. If the program blew up politically, he could produce a record of his opposition. On the other hand, if something actually blew up in another terrorist attack, he could always claim that he was supporting all necessary measures to keep the country safe.

  I took another of his later objections more personally. After elements of the program were outed, Rockefeller claimed that the briefings he received on it (all of them from me) were somehow shallow or incomplete; flipping through a bunch of slides was how he put it. I’m not sure how much more he wanted or could absorb, but so much for our strategy to be “full Monty” with our overseers.

  Another senior Democrat later briefed on Stellarwind, Congresswoman Jane Harman, had some of the same political issues as Senator Rockefeller. Her path off that particular X was to claim that she had never been told that what we were doing was beyond the bounds of the FISA statute. So, were we having periodic, small-group, secret meetings in the vice president’s office just to inform a very select group of Congress members and senators that nothing much had changed and we were doing this stuff just the way it had been done before 9/11?

  No wonder, then, that Pat Roberts, later chairman of the Senate oversight committee, rattled a pill bottle on one of those Sunday talk shows and declared that he was going to prescribe these “memory pills” for his colleagues.

  In truth, though, we mishandled congressional notification—not constitutionally, but politically. We kept the circle small for noble reasons: to keep the secrets. But politically it was a mistake and strategically it led to a loss of political and, more important, popular support for what we were doing.

  By keeping the circle so small we created a dilemma for the Democrats we had briefed; they would have to exhibit uncharacteristic heroism to resist their own political base when the program was revealed. Jane Harman did so for a while when the New York Times published its account in December 2005. Most didn’t.

  And we actually motivated those who had not been briefed to oppose us simply on the grounds of process (or, in their view, lack of process).

  A better course would have been to brief the entire House and Senate Intelligence Committees along with a limited number of staff on the whole program, effectively daring them to take action to stop any of it. That would have turned their natural political caution to our advantage rather than putting it on the other side of the issue.

  I came to crudely put it that we should have made more people pregnant so that when this became public, no one could doubt who was already with child.

  We informed the third branch of government, the judiciary, in early 2002, not because anyone thought that the president doing this under his Article 2 authorities needed the court’s permission, but rather because Justice was understandably concerned that Stellarwind-derived data could work its way into applications for routine FISA warrants. Fearful of misleading the court if it was opaque regarding the sources in its applications, DOJ wanted at least the chief judge of the court to know the origins of such information (and confine applications burdened in this way to the presiding judge).

  On one of those cold, overcast January days that seem so normal in Washington, my security detail escorted me from the Chevrolet Suburban up to Attorney General John Ashcroft’s office to meet Judge Royce Lamberth, the presiding judge of the FISA Court. In the AG’s anteroom I lashed up with John Yoo, who had written the DOJ opinion on which the White House based the legal justification of Stellarwind.

  It was the first time that Yoo and I had met. This meeting would also be the first time that he would hear a detailed description of the program’s technical operation, although he had seen Addington’s order and Tenet’s threat memo.

  Yoo knew Lamberth pretty well from his time clerking for the DC circuit appeals court and the Supreme Court and as general counsel for the Senate Judiciary Committee. Lamberth came without staff and was his usual gregarious self. Yoo, Lamberth, and I settled into a circle of leather chairs as the attorney general sat at his desk. Ashcroft began the discussion with a broad treatment of the threat situation and a fairly nondescriptive overview of what we were doing, and then cued me to brief the judge.

  This time, without paper slides, I walked the judge through what was essentially the congressional briefing except that as a judge on the FISA Court since 1995, Lamberth had a deep understanding of the law and a pretty good handle on the technology too.

  Satisfied he understood what we were doing, he then turned to Yoo, and I got to sit back and watch the legal seminar as they went back and forth about the extent and the limits of executive power. Yoo admitted that when the president exercised his authority consistent with the intent of Congress described in statute (like the Foreign Intelligence Surveillance Act), he was operating from a very strong constitutional and political safe harbor. But he added that the president did not need such a haven when he was exercising his legitimate constitutional authorities as commander in chief, as he was in this case. Yoo noted that the Supreme Court had reserved this question. In other words, in previous opinions on surveillance it had clearly limited its reading on the Fourth Amendment’s warrant requirement so as not to extend it to the collection of foreign intelligence.

  The conversation was spirited, but not confrontational. Yoo was a little surprised, since the judge had been hell on DOJ the previous summer over mounting administrative errors in FISA applications. Lamberth wasn’t leading the witness, but his questions suggested that he agreed with the argument grounding this in the president’s commander-in-chief authority.

  Others apparently did too. Only months later the FISA Court of Appeals, in its first ruling ever, unanimously cited earlier case law that “we take for granted that the president does have . . . inherent authority to conduct warrantless searches to obtain foreign intelligence information.”

  As we were closing, Yoo offered to give Lamberth a copy of his opinion, but the judge declined, saying that he understood the commander-in-chief-authority argument. The two also allowed themselves to speculate what might become of this issue were it ever to end up in front of the Supreme Court. Betting was in the 6–3 to 7–2 range.

  Later, when Stellarwind became public, many commentators quickly labeled it unconstitutional on its face. Admittedly the Supreme Court dealt executive authority a series of body blows in the Hamdan and Hamdi cases (on Guantánamo detainees), but the arguments backstopping this program had strong history and precedent behind them. (And, if anything, the FISA Court endorsed the expansion of government surveillance in subsequent years.)

  For our part, though, over the next two years, the Stellarwind program continued apace. We had growing confidence in its value, and I would periodically update the president and the congressional leadership on its success.

  As I was walking through some slides one morning in the Oval Office, the president interrupted me and said, “So what you’re telling me, Mike, is that this is working.”

  “Hold that thought, Mr. President,” I responded. “Just three more slides.”

  We were able to brief real connections between overseas terrorists and people in the United States. We intercepted the content of communications as suspected terrorist-related calls exited or entered the United States. All this pointed to plotting in places like the northeastern and midwestern United States.

  Was any of it decisive? I think so, but it’s hard to prove definitively, since good intelligence is usually the product of multiple streams of information, and it’s usually fruitless to try to untangle the streams to assign relative merit. But it is clear that Stellarwind covered a quadrant where we had no other tools.

  What could be wrong with that?

 
• • •

  THE FIRST WHEELS began to fly off entirely within the executive branch. Jim Comey had become deputy attorney general in December 2003, and early in his tenure I visited him in his office to acquaint him with Stellarwind. There was no way this program was not going to involve him, so we were anxious to give him the details.

  I thought the briefing was unexceptional, friendly enough, but in retrospect it looks like Comey had other views. There have been several public accounts of the meeting from what has to be Comey’s perspective, since I didn’t talk to any of the authors.

  One account says that I jokingly began with something along the lines of being happy to bring someone else into the circle, since sooner or later we were all going to have to raise our right hands when this became public. I was not intending any legal judgment, but certainly felt confident that politically that was where all this would inevitably end.*

  Comey clearly wanted his own legal judgment, since he soon sent Patrick Philbin, a very conscientious lawyer whom we knew and liked from the Office of Legal Counsel, to do a thorough scrub of Stellarwind. Patrick routinely had complete access to both our legal and operational staffs. We didn’t view this so much as an inspection but rather as one of those periodic checks you always wanted to have on a program like this. But it wasn’t long before the NSA folks sensed that the legal consensus on which we were relying might not be as stable as we had thought.

  At one point in early 2004 I crossed paths with Patrick in the hallway outside my office. We knew each other well enough that I could be candid with him. “Patrick,” I said, “do I need to stop doing anything?”

  “No,” he replied, but ultimately what Patrick really meant was, “No, not yet.”

  A storm was brewing over certain aspects of the Stellarwind program, but decidedly not about all (or even most) of it. An aspect that was now in question (the details of which remain classified) involved collection that swept up some US person data. That is permissible—but only within limits—and now some in Justice thought that our current art and science weren’t discriminating enough. Too much incidental collection of US person stuff. We obviously disagreed.

  A lot of the legal Sturm und Drang played out in Justice beyond our view, but the thunder and the rain were visible enough when the Stellarwind authorization came up for renewal in early March 2004. Attorney General Ashcroft was in the hospital with acute pancreatitis, and Comey, as acting attorney general, would not aver to the lawfulness of the president’s reauthorization. He was supported by Jack Goldsmith, the talented new head of the Office of Legal Counsel (Philbin’s boss), and FBI director Bob Mueller.

  The storm hit, at least for us, on Sunday, March 7. I called an emergency meeting for about noon for my Stellarwind and counterterrorism experts to prepare me for a White House huddle later that day with the vice president, DCI Tenet, David Addington, Al Gonzales, and Andy Card. There we decided that Tenet would contact Bob Mueller directly; George later told me that Mueller had a high regard for Comey: “He’s a serious guy. He shows up and his lead lawyers say they can’t do it.” George and I stayed closely connected and were on the phone a lot. But it was a hectic time. Calls were flying. I once hung up on the DCI to take a call from the vice president.

  I was directed to prepare NSA technicians and CIA analysts for another briefing to Comey. We briefed Comey at the White House on Tuesday, March 9. It was the Sunday crowd, with John McLaughlin sitting in for Tenet, plus Comey and Mueller and others from Justice. Comey was a tough audience. He thought that this was the most aggressive assertion of presidential power in history (really?) and dismissed John Yoo’s legal opinion out of hand. He angered my analysts by seeming to reject their claims and crediting traditional FBI approaches for what we believed were Stellarwind successes. We made no progress. It was a tense session, so Comey surprised me when he seemed to go out of his way to shake my hand as we adjourned.

  We explored the possibility of legislative relief. On Thursday afternoon, March 10, the White House Situation Room was filled with eight senior congressional leaders.* They had been summoned there, from both chambers and from both parties, by an emergency phone call from the White House. Several had previously been briefed on Stellarwind; others had not.

  The vice president began the meeting by outlining Stellarwind and defending its utility, but also candidly describing the legal crisis we were now in over some aspects of the program. He then cued me to fill in the details on what we had been doing and particularly the details on what was now in dispute. Mine was an operational discussion, not a legal one. I brought two technical experts with me from the fort, and at one point, they laid out on the Situation Room table a complex (but nonetheless impressive) “spider chart” showing how Stellarwind could be used to identify and track a target. Two CIA analysts showed how this data could be folded into a larger analytical picture, using a then-current case as an example. That effort actually led to a number of arrests.

  Senator Rockefeller, who was familiar with this from previous sessions, asked about due diligence, adherence to authorities, and positive controls. The vice president had us offer up the detailed Stellarwind checklist we used. I could also have added, as anecdotal evidence, that we couldn’t target all terrorists under this program (only those connected to 9/11) and any expansion of targets required that the president specifically amend his direction to us. This had been carefully focused.

  Small sidebar discussions developed as the explanation deepened. In one, Porter Goss, who as House Intelligence chair was very familiar with this, seemed to be explaining aspects to Senator Tom Frist.

  It was a tough briefing, not because of any pushback, but because it was technical and wide ranging and it also had to be short. The Situation Room is small, and that day it was cramped and quite hot. Several members fought the urge to fall asleep.

  I turned the floor back to the vice president and sat down in one of the chairs against the outside wall. A remarkable discussion followed.

  When the vice president repeated that there were now significant headwinds from DOJ lawyers, one Republican wit acidly advised, “Then get some new lawyers!”

  Another member raised the question of legislative relief, but this was ultimately rejected. Even if it were possible, it would take too long, and in any event, it was thought that congressional action would unmask too much of the program. (This was the course of action that my IG, Joel Brenner, had been advocating. Interestingly, when the law was actually changed in 2008, the debate was indeed extraordinarily long, but the inner workings of the program were not exposed.)*

  All in all, as I sat there with little to do but observe, I gradually grew more impressed with the members’ inherent seriousness and patriotism. No one was celebrating the administration’s legal or impending political dilemma, and there was no evidence that anyone in the room wanted this program to stop. On the contrary, they wanted this to work (within the law). One leading Democrat congratulated the administration on having such a meeting. As the session was closing, the vice president asserted that what he was hearing was that we should continue with the activity in question. No one disputed his statement.

  Energized by the political consensus in the Sit Room that this needed to go forward while a permanent fix (still not in sight) was engineered, Chief of Staff Andy Card and White House Counsel Al Gonzales made one more try to get Ashcroft’s signature on the renewal of the authorization. Their nighttime trip to George Washington hospital has been documented (and disputed) elsewhere. No one at NSA knew of the visit in advance, and we were given the briefest description of it afterward (David Addington mentioned it in passing to me during a phone call the next morning).

  But now we had to make a decision, and I was asked Friday morning point-blank by the White House (in the person of Addington) whether I would agree to carry out the Stellarwind program if the White House counsel rather than the acting attorney general averred to its overall la
wfulness.

  After a short reflection, I said, “Yes, I would,” thereby giving us another forty-five days to sort this out, get out of crisis mode, and more calmly (and collectively) agree on a way ahead.

  I didn’t regret the decision then and I don’t regret it now. NSA lawyers, expert in this field, were still comfortable with what we were doing. I was also heartened by the bipartisan political support I had sensed in the Situation Room the afternoon before. And—often missed in public accounts of the controversy—there’s the fact that its lawfulness had been averred to about a dozen times, and even at this low point there was no DOJ opinion that it was unlawful, just a refusal to currently commit to its lawfulness. Let me repeat that. No one even now was telling us that we had been doing anything illegal, and when asked if they were preparing to do that, Justice said no. We were even later allowed to retain all the data we had previously collected under the program, a very problematic step if any unlawful acquisition had been so clear.

  And I had one additional consideration. A few hours after Andy Card and Al Gonzales had left John Ashcroft on his sickbed at George Washington hospital, a series of backpack bombs began exploding on crowded commuter trains during the morning rush hour in Madrid, Spain. A total of 191 Spaniards were killed and nearly ten times that number were injured. With the morning’s TV images from Europe fresh in my mind, I was not anxious to cut back on any intelligence collection.

  Real-world events were imposing themselves. Operationally we were going crazy trying to keep pace with things like Madrid while also working an extraordinary number of hours supporting our general counsel and the Department of Justice. One of my best counterterrorism analysts told me that on his first day off in weeks, he was interrupted by phone calls at home from various offices in DOJ wanting clarification on the point papers he had submitted to them.