THERE WERE NO PRESIDENTIAL ELECTIONS pending the following November (2005) when Phil Taubman called me personally to tell me that the Times was reconsidering its position. He added, “Other people have come forward with concerns.”
More of Lichtblau’s sources in Justice, I silently mused.
Phil didn’t mention it then, but it soon became clear that Risen was holding his own newspaper hostage. He had already sent a final draft of his upcoming book, State of War, to his publisher, and the Stellarwind story was going to be one of its flagship chapters. Essentially the Times was faced with a “use it or lose it” dilemma. And they really wanted to use it.
Although Taubman called me, I was gone from NSA and was serving as principal deputy director of National Intelligence under John Negroponte (chapter 9). I had to catch up and so began a series of secure videoconferences with NSA over the next week or so. I was still corporate memory, though, since Al Gonzales was now attorney general with Harriet Miers in his place as White House counsel. Condi’s deputy, Steve Hadley, had fleeted up to the national security advisor position. I alerted the new players to the pending crisis and promised I would talk with Phil.
Taubman was as evenhanded as ever, but he was pressing hard on the “others have come forward” theme, and that, he said, showed that there was tension within the administration over the program. I assured him that there was no contention over what we were doing, which was true as far as it went. I wasn’t at liberty to discuss the crisis of March 2004, which, after all, had been settled (satisfactorily from our point of view) and in any event involved an aspect of the program that was not part of the Times’s story.
Phil persisted and pushed for access to members of Congress in order to personally gauge whether or not they were on board. That was going to be tricky. It was one thing for me (for the administration) to show more leg, but quite another to get politically cautious members of Congress to do the same thing. “I’ll look into it,” I told Phil.
We reprised the 2004 meeting in the office of the national security advisor in late November 2005. Hadley hosted, joined by Condi (now at State), Harriet Miers, John Negroponte, and me. Keller and Taubman were there from the Times, and this time they were joined by Eric Lichtblau, one of the reporters. This session was edgier in tone than the previous one—it seemed less a discussion about whether or not to publish and more a last chance for the administration to prevent it.
The Times kept returning to the theme of internal dissent, and their natural inclination to publish was reinforced by Risen’s imminent book. After all, this was going to become public, one way or another. The only question for them was whether or not they were going to get credit for it.
I also suspect that the Times shared, reflected, and was trying to lead a changing mood in the country. After four-plus years of both public and elite opinion clamoring for us to do “whatever it takes,” the burden of proof was now clearly on us to show that what we were doing was both lawful and unarguably essential. We weren’t going to win any close calls.
We had a program that was an aggressive use of executive power, but one made known to the other two branches (more broadly known than many covert actions). It was carefully run, there was no evidence of abuse, and we believed it was contributing to making the nation safer.
Now the Times (and other outlets once the story broke) was ready to descend with a fury if we couldn’t prove that all of those claims were airtight. Congressional notification looked flawed: too few members; too few details; no staff. How could we claim there was a consensus within the executive branch when their reporters kept getting those phone calls? We said there had been no abuses. How could they possibly confirm that?
It was the effectiveness metric that was most difficult to show. Good intelligence is like a tapestry with multiple threads woven into a beautiful whole. And here we were being asked to show when and where this strand did it all (not unlike a later debate over the effectiveness of CIA interrogations). Besides, almost all of the concrete cases we had were still part of current operations, active investigations, or open court cases. Openness has its limits.
What they were looking for, and I couldn’t provide, was a case where a Stellarwind intercept had led to our tackling a sniper on a roof just as he was chambering a round. Anything short of that was unconvincing.
We were still losing. We took it to the Oval.
There the government cast was the president, Chief of Staff Andy Card, Harriet Miers, and me. The Times contingent comprised Taubman, Keller, and Arthur Sulzberger Jr., the publisher. The president sat in his usual chair in front of the fireplace. The vice president’s chair to his right was empty. After a very brief greeting the president motioned the visitors to sit on the sofa to his left, where the national security advisor and chief of staff usually sat for the morning PDB.
Sulzberger tried to break the ice by jokingly pointing out that both he and the president were now working in their fathers’ offices. No ice was broken.
Sulzberger then attempted to lay out the Times’s position on the matter at hand. No go there, either. The president cut him short and said this conversation was about his telling the paper why going with the story was wrong.
The president said that if another attack was successful, he expected the Times’s leadership to be up on the Hill, right hands in the air along with the leadership of the intelligence community, explaining to Congress how they permitted it to happen.
The president cued me for my regular presentation on the program. It could have gone better. I was physically too far away from the target audience, two of whom had heard this before and one of whom seemed to think this was a pretty pro forma step.
As the meeting inconclusively adjourned, the Times contingent renewed their request to meet with members of Congress to gauge whether they believed that the program should remain secret. They also promised not to go with the story without giving the White House a chance to comment.
We stayed behind in the Oval. I suggested to the president, who had done an eye roll when the idea of letting the Times talk to Congress was raised, that we had to take that step. I would arrange it exclusively for Taubman, whom, I said, “we could trust.”
I worked through Pat Roberts, chairman of the Senate Intelligence Committee, to set up the session. One night in mid-December, Taubman met with Roberts and his Democrat counterpart, Jay Rockefeller, along with Pete Hoekstra and Jane Harman from the House side. I consciously absented myself. Some may have seen risk in that, but I believed that the presence of any administration official at the meeting would cause even supportive views from the members to be discounted.
Afterward I talked to the folks who were in the meeting. All of them were very forceful that the story should not go forward. “We disagree on some things,” one member offered, “but not on this program.” Another referred to the effort as the “crown jewels” to explain why only a small group had been briefed. Taubman was told that “people have a right to privacy, but they also have a right to live.” One member colorfully reported to me afterward that “the Four Horsemen stood firm.”
It didn’t matter. Early in the evening of December 15, the New York Times Web site posted a screaming headline: “Bush Lets US Spy on Callers Without Courts.” The timing may also have been related to the renewal of the Patriot Act, which had been pulled forward on the legislative calendar and was now being debated. The Times’s bombshell delayed passage until the following March. There were also reports that the Times feared prior restraint—the administration going to the courts to prevent publication.
The night the story hit, my wife, Jeanine, and I were hosting Pete Hoekstra and Jane Harman for a small dinner at our house at Bolling Air Force Base along the Potomac. The chair and ranking member of the House Intelligence Committee really weren’t getting along, so I can’t claim that everyone’s cell phone going off ruined what had been to that point a thoroughly relaxing evening.
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br /> But go off they did. After four years of Stellarwind, the public was being given a necessarily incomplete and often flawed account of what its government had been doing to protect it. The Times had a story, but not really the story, at least from our point of view. The questions for us now were what we were going to do to defend ourselves and in that process how much of the program we could make public.
President Bush drew the battle line the next morning, Friday, when he directed that his regular Saturday radio address, which he had already recorded, be scrapped. He would go live on Saturday morning, defend the program, condemn the leak, and promise to keep on doing what he was doing.
The president began, “To fight the war on terror, I’m using authority vested in me by Congress . . . [and] I am also using constitutional authority vested in me as commander in chief.”
After emphasizing that this involved international calls, that at least one end was always outside the United States, and that any intercept was always based on the belief that the call was affiliated with al-Qaeda, the president condemned the unauthorized disclosure of this information and then said that he had “reauthorized this program more than thirty times . . . and I intend to do so for as long as our nation faces a continuing threat from al-Qaeda and related groups.”
In the intel community, when someone runs a story that threatens to win a Pulitzer Prize (Risen and Lichtblau did indeed win one, although the Pulitzer Committee had to do some creative categorizing that year to honor both them and Dana Priest’s exposé of CIA black sites), everyone holds their breath to see if the political leadership that told you to do this in the first place is going to man up and back you. President Bush manned up that Saturday morning. (And after the holidays he went to Fort Meade to support the NSA workforce and personally thank the Stellarwind crew for their work.) We could exhale.
On that same Saturday my wife and I were trying to squeeze in some Christmas shopping at the Annapolis Mall. My cell phone rang. It was Jane Harman, senior Democrat on the HPSCI, knowledgeable about the program and, up to that point, supportive. She wanted me to brief all the members of the House Intelligence Committee on Stellarwind. She said that it was the right thing to do, and although she didn’t say it, I knew that it would give her some badly needed and well-deserved political top cover.*
Andy Card was supportive, so I prepared to close down the shopping trip and head downtown. I shouldn’t have bothered. Before I could leave the mall, the project had been nixed. I was never told by whom.
If Harman was trying to help, others were looking for cover. As the press stories piled up, I got a phone call from Congresswoman Nancy Pelosi, House minority leader, who had been briefed five times on Stellarwind at that point.
As she was ranking Democrat on the intelligence committee, I had also briefed her shortly after 9/11 on a separate issue: the instructions I had given with regard to communications between the United States and Afghanistan, essentially directing that analysts should interpret “intelligence value” rather liberally when deciding whether US person information should be included in reporting (chapter 5). After all, three thousand of our countrymen were dead in an attack organized in and directed from that country. We didn’t want to miss or delay anything. Following that briefing (which was given before Stellarwind existed), Congresswoman Pelosi sent a letter to NSA expressing some generalized concerns about US privacy, which we dutifully answered.
Now the congresswoman wanted me to expedite declassification of that October 2001 letter. I said that I would, but added that her letter—although its language was general enough to allow it to be construed to be about the subject of the Times story—was decidedly not about that program.
“Ma’am,” I argued, “this is apples and oranges.”
“It’s all fruit,” she replied.
The Sunday after the Times story broke, Al Gonzales and I were in the Senate Intelligence Committee chamber, where Pat Roberts, the chairman, had invited the chair and ranking members of the Senate Judiciary Committee. It was scheduled late to accommodate the senators returning to Washington. The ranking member, Senator Leahy, was a no-show. He certainly proved to have a view on all this, but he never got our description of exactly what we were doing.
So it was the three of us and Senator Arlen Specter, then Republican (later Democrat) of Pennsylvania and a former district attorney in Philadelphia. Judge Gonzales gave a broad overview and then turned to me for a detailed lay-down.
It was slow going. As a former prosecutor, Specter had a law enforcement view of surveillance, so intelligence rules (even pre-Stellarwind intelligence rules) constituted new ground for him. At one point, he simply asked, “But how do you protect privacy?” I began to outline all the US person privacy protections, minimization of US identities and the like, when he interrupted again to add, “No, everyone’s privacy. Foreigners’ privacy.”
I hadn’t expected that one. My instinct was to say something about the Fourth Amendment not being an international treaty, an instinct I wisely suppressed, and probably muttered something about confining ourselves to things that were operationally relevant.
That should have been a lesson. This was going to be harder to explain than I thought, since so many people lacked a basic understanding of what NSA did. Stellarwind was a departure from normal, to be sure; a legitimate question was how many sigmas, how many deviations from the mean. Without an understanding of the baseline, everyone was free to imagine the worst.
Early next morning (Monday) I walked the short distance to the White House from the New Executive Office Building, where the ODNI’s temporary offices were. It was less than a week from Christmas, decorations were out, and the air was crisp and clear. Lovely morning for a walk through Lafayette Park.
There had been broad suggestions over the weekend of a press availability that morning. Good thing I went over to check. A few minutes after I arrived, I was ushered into a packed White House pressroom with Al Gonzales to do a backgrounder on what the White House now called the Terrorist Surveillance Program (i.e., that part of Stellarwind revealed by the New York Times).
Judge Gonzales began by explaining the program. International calls only. Related to al-Qaeda. Justified by the president’s constitutional authority as well as being “incident” to war as declared by the Authorization for the Use of Military Force even though surveillance (and detention) were not specifically mentioned.
I pointed out that “there are probably no communications more important to what it is we’re trying to do to defend the nation; no communication is more important for that purpose than those communications that involve al-Qaeda, and one end of which is inside the homeland, one end of which is inside the United States.”
When challenged why we could not do this under FISA, I responded,
FISA is very important, we make full use of FISA. But if you picture what FISA was designed to do, FISA is designed to handle the needs of the nation in two broad categories: there’s a law enforcement aspect of it; and the other aspect is the continued collection of foreign intelligence. I don’t think anyone could claim that FISA was envisaged as a tool to cover armed enemy combatants in preparation for attacks inside the United States.
The whole key here is agility. . . . FISA was built for persistence. FISA was built for long-term coverage against known agents of an enemy power. And the purpose involved in each of those—in those cases was either for a long-term law enforcement purpose or a long-term intelligence purpose.
This program isn’t for that. This is to detect and prevent. And here the key is not so much persistence as it is agility. It’s a quicker trigger. It’s a subtly softer trigger. And the intrusion into privacy—the intrusion into privacy is significantly less. It’s only international calls. The period of time in which we do this is, in most cases, far less than that which would be gained by getting a court order. And our purpose here, our sole purpose, is to detect and pre
vent.
It is not designed to collect reams of intelligence . . . [and if] this particular line of logic, this reasoning that took us to this place proves to be inaccurate, we move off it right away. We can’t waste resources on targets that simply don’t provide valuable information . . . and in this program, the standards, in terms of reevaluating whether or not this coverage is worthwhile at all, are measured in days and weeks.
That’s about as clear an exposition of the program as I have ever given. It didn’t matter. The place was a snake pit. Helen Thomas kept up a mumbled growl at me from her front-row seat with sounds that may have contained a question.
Others chimed in. “I wanted to ask you a question. Do you think the government has the right to break the law?” Followed by, “You have stretched this resolution for war into giving you carte blanche to do anything you want to do.” We were then told, “You’re never supposed to spy on Americans.” Followed by the accusation that we were “into wiretapping everybody.”
I was challenged about what was really compromised by the Times story. “General . . . don’t you assume that the other side thinks we’re listening to them? I mean, come on.”
I responded that the program’s success was a prima facie case against that assumption but that “the more we discuss it, the more we put it in the face of those who would do us harm, the more they will respond to this and protect their communications and make it more difficult for us to defend the nation.”
When I said that decisions on whose communications to target were made by intelligence professionals, I got hit with, “So a shift supervisor is now making decisions that a FISA judge would normally make? I just want to make sure I understand. Is that what you’re saying?” I said that it was. And I was saying it “to remove any question in your mind that this is in any way politically influenced.”
Near the end, I was actually asked a fair and important question: “Can you assure us that all of these intercepts had an international component and that at no time were any of the intercepts purely domestic?”
Playing to the Edge: American Intelligence in the Age of Terror Page 12