The NSA, so secret it’s sometimes called “No Such Agency,” was created in 1952 primarily as a cryptographic enterprise to invent and break codes. Only a tiny facet can be seen by the public, at its museum of cryptography adjacent to its headquarters in Fort Meade, Maryland, halfway between Washington and Baltimore. A glass case in the museum’s entrance holds a large, jagged chunk of the Pentagon where it was struck on 9/11 but nothing else from the current era. It has displays of outdated code machines from the two world wars, the Korean War, and the Vietnam War, but that’s where history ends, as if the recent past is itself a secret. From the roadway to the museum, you can see the agency’s bunker-like concrete buildings and the two newest structures, block shaped, which look as if they are made of blue-green glass. They appear deceptively transparent.
When Bush visited the NSA in September 2007, reporters noted a tough-minded sign on a wall: “We Won’t Back Down. We Never Have. We Never Will.”52 Evidently not. Led by a military officer, the agency was designed to spy on communications overseas but was secretly driven off course by one president after another to monitor domestic antiwar activists, civil rights organizers, Black Panthers, and other dissident Americans during COINTELPRO and other surveillance programs of the 1950s, 1960s, and 1970s. NSA officials were uncomfortable with those assignments, recalled Jerry Berman, who worked to end warrantless wiretapping as chief legislative counsel for the ACLU when the Foreign Intelligence Surveillance Act was passed. “Of all the agencies that wanted to get this right,” he said, “NSA was the leader at the time. The culture of the Justice Department was [J. Edgar] Hoover. NSA was created on a different front, less ideological, more interested in real espionage, and I think they felt burned by having been asked to participate in this program.”
Once FISA was enacted, the NSA on its own was not supposed to eavesdrop on communications involving anyone inside the United States. If one party to an international phone or Internet exchange turned out to be on American soil, a warrant was sought from a FISA judge. Say someone in Yemen, suspected of links to al-Qaeda, phoned or e-mailed someone in Los Angeles. Communications within Yemen or between Yemen and another foreign country lay outside FISA’s jurisdiction and could be monitored by the NSA at will. But as soon as the traffic entered the United States, FISA kicked in, requiring a secret warrant. That wasn’t hard to get if there was enough contact for the government to show probable cause that the L.A. party was a foreign agent. If speed was essential, FISA’s emergency provision authorized monitoring first—an approval often issued in minutes—and then an application to a judge within three days.
But Bush changed the rules by fiat, with a secret sleight of hand. Even while pressing quickly after September 11 for the Patriot Act amendments broadening FISA, he stealthily evaded FISA itself by signing a classified executive order mobilizing the NSA’s global arrays of antennas and computers to monitor e-mail and telephone traffic into and out of the United States—without the required FISA warrants. Shift managers chose their own targets without approval from the White House or the Justice Department, much less a court, according to James Risen and Eric Lichtblau, who disclosed the surveillance in The New York Times. In addition, communications wholly within the United States were often captured—by accident, officials told them—because the location of a cell phone or an Internet user wasn’t always obvious.53
Although 9/11 was the excuse, the concept of comprehensive intercepts predated the attacks, according to Risen and Lichtblau. In 2000, they discovered, NSA officials “wrote a transition report to the incoming Bush administration, saying the agency must become a ‘powerful, permanent presence’ on the commercial communications network,” whose executives were sounded out by the NSA soon after the inauguration.54 When communications relied on microwave or satellites, the NSA could eavesdrop using its own equipment, but the growth of fiber-optic cables for transmission had thrown the agency into a dependence on communications companies.
Most big firms cooperated and thereby violated the Electronic Communications Privacy Act, inviting customer lawsuits. The companies allowed the government to tap into fiber-optic cables where they entered the United States at coastal landing stations, and to install such filters as the Narus STA 6400, a splitter box, to copy, slow down, and sift through huge volumes of data. An AT&T technician, Mark Kline, who learned that the device had been placed in a secret room at AT&T’s switch center on Folsom Street in San Francisco, told the author James Bamford that the location, a nexus for domestic as well as foreign traffic, suggested an interest in eavesdropping inside the United States. “The NSA was spreading an electronic drift net across cyberspace,” Bamford concluded.55
The clandestine surveillance created a farcical illusion in the post-9/11 debate over civil liberties. While the ACLU and others believed that the Patriot Act made FISA too loose, the Bush administration saw FISA as too restrictive. While those concerned with Americans’ privacy regarded FISA as an end run around the Fourth Amendment, the administration was secretly making an end run around FISA. Rights advocates thought they were challenging the government’s most intrusive tools, but in fact the public arguments merely skated along the surface of intrusions whose depths remained unseen.
Unnamed officials who thought the program illegal and unconstitutional told Risen and Lichtblau that it had been launched after the seizure of cell phones, computers, and address books from al-Qaeda operatives taken prisoner in Afghanistan. Phone numbers and e-mail addresses found in those records, some of them for people inside the United States, were given to the NSA to monitor, forgoing the well-established legal procedures.
Beyond spying on particular phone lines and e-mail accounts, the NSA’s program of broad data-mining and computer sweeps sifted many quadrillions of bytes for words or phrases that would trigger detailed examination. That may have explained why officials circumvented FISA. At the time, even a FISA warrant required some specificity: a particular number or person or place, something narrower than a vast net to scoop up huge volumes of phone and e-mail communications indiscriminately.
A former manager in an unnamed communications firm explained the government’s objectives in the Times article. “If they get content, that’s useful to them too, but the real plum is going to be the transaction data and the traffic analysis,” he told the reporters. “Massive amounts of traffic analysis information—who is calling whom, who is in Osama bin Laden’s circle of family and friends—is used to identify lines of communication that are then given closer scrutiny.”56
AT&T and Verizon both cooperated, the Times reported, as the NSA reached far beyond counterterrorism into the common crime of drug trafficking. Without court orders, the companies allowed the NSA to install equipment that collected records on “thousands of Americans and others inside the United States who call people in Latin America” and other narcotics-producing regions. Only Qwest refused an NSA request to monitor local switches carrying mainly domestic calls. But that didn’t matter, Bamford reported, since Qwest’s cables came through AT&T and were routed through the Narus splitter.57
Since the technology allows particular phone numbers and e-mail addresses to be programmed for monitoring, it can also exclude them from surveillance. But the NSA has deliberately eavesdropped on journalists and humanitarian organizations overseas, even on their private communications with relatives back home, regarding them as useful sources of information, “eyes on the ground,” Bamford was told by an agency linguist, Adrienne J. Kinne. On a scale of one to eight, they were assigned priorities of five to seven, she said.58
Inside the country, the phone records of “tens of millions of Americans” were being handed over to the NSA by AT&T, Verizon, and BellSouth, officials told USA Today. Numbers called and received—not the content of conversations—were being compiled to create a national database of all calls to and from businesses, friends, family members, colleagues, and the like, through which “the NSA has gained a secret window into the communications habits of millio
ns of Americans.”59
Under the more focused, targeted program, Risen and Lichtblau reported, about five hundred people in the United States were being monitored at any one time, and five thousand to seven thousand overseas. Yet the surveillance apparently uncovered few terrorist plots, and officials seemed hardly ecstatic about its results. It received only middling marks in 2009, after an unprecedented investigation by the five inspectors general of the CIA, the NSA, the Justice Department, the Defense Department, and the Director of National Intelligence. While the secret program “had value in some counterterrorism investigations, it generally played a limited role in the FBI’s overall counterterrorism efforts,” they reported. The NSA bragged about its having helped disrupt al-Qaeda operatives, but no examples were made public, so the claim could neither be refuted nor verified by the investigators. Most officials interviewed for the report “had difficulty citing specific instances” where the surveillance “directly contributed to counterterrorism successes.” A senior CIA official said that the monitoring “was rarely the sole basis for an intelligence success, but that it frequently played a supporting role,” and served as “an additional resource to enhance the CIA’s understanding of terrorist networks.” However, the information was discounted by other CIA officials as “vague or without context.”60
One exception cited by officials was a plot to bomb pubs and railroad stations in Britain. Another was an Ohio truck driver named Iyman Faris, who pleaded guilty in 2003 to what seemed a rather unlikely fantasy: a scheme to use blowtorches to bring down the Brooklyn Bridge. At least he wasn’t accused of trying to sell it first.61
It is worth repeating that prevention provided the motive for the surveillance, which was described in a Justice Department paper as “an early warning system to detect and prevent another catastrophic terrorist attack on the United States.”62 Bush shrewdly entitled it the Terrorist Surveillance Program following its disclosure. In the minds of officials charged with keeping the country secure, the attacks of September 11 redefined the relationship between crime and law enforcement. No longer did the time-honored sequence of criminal procedure—first the crime, then the punishment—seem relevant. No penalty could be levied on the nineteen hijackers after that clear September morning; terrorists whose mission includes suicide leave behind no opportunity for justice. So the traditional approach of investigating, gathering evidence, arresting a suspect, and proving a case seems about as sensible as sealing the leak after the ship has sunk.
“You want to catch a terrorist with his hands on the check instead of his hands on the bomb,” said Deputy Attorney General James B. Comey, testifying before Congress in 2005. “You want to be many steps ahead of the devastating event. The way we do that is through preventive and disruptive measures, by using investigative tools to learn as much as we can as quickly as we can and then incapacitating a target at the right moment. Tools such as enhanced information sharing mechanisms, roving surveillance, pen registers, requests for the production of business records, and delayed notification search warrants allow us to do just that.”63
This sounded like a persuasive rationale, yet two years later Comey revealed to Congress that in 2004 he had refused to sign an extension of the surveillance operation because “I could not, after a whole lot of hard work, find an adequate legal basis for the program.”64 He was reportedly concerned less with the NSA activities than with other, unspecified intelligence methods that had not been accurately described in Yoo’s memos, according to the five inspectors general. Comey’s resistance set the stage for a dramatic, high-level confrontation at the hospital bedside of a critically ill Attorney General John Ashcroft.
Bush had launched the surveillance by executive order but had required its renewal every forty-five days, a reauthorization that relied on the Justice Department to certify its legality. A green light had been given for at least two years by Jay S. Bybee and his assistant John Yoo, but this time, the new head of the department’s Office of Legal Counsel, Jack Goldsmith, had completed “a very intensive reevaluation” and found “no legal basis,” Comey testified. Such a determination is usually binding on the entire executive branch.
The inadequate descriptions in Yoo’s memos had left the attorney general unaware of what he had been certifying as legal, according to the five inspectors general.65 So Comey held an hour’s discussion with Ashcroft, and the two decided together that to conform with the law, the program had to be changed—in what manner Comey would not say publicly. This put them on a collision course with the White House, which was keen to continue the spying.
Just hours after the meeting, Ashcroft fell gravely ill, was rushed to George Washington University Hospital for emergency surgery to remove his gallbladder, and was placed in intensive care suffering from pancreatitis. Comey became acting attorney general and told the White House and other agencies that “I would not certify the program as to its legality and explained our reasoning in detail.” He made his views clear at a March 9 White House meeting that included Cheney and David Addington, now Cheney’s chief of staff, who pushed hard during his tenure for expansive executive power.66 This set in motion an extraordinary attempt by the White House to circumvent the Justice Department.
As Comey was being driven home by his security detail along Constitution Avenue about 8 p.m. on March 10, 2004, the night before the periodic authorization expired, a call came from Ashcroft’s chief of staff, David Ayres. He had been phoned from the hospital by Ashcroft’s wife, Janet, who was also a lawyer, to say that she had fielded a call to her husband from President Bush and White House Chief of Staff Andrew Card. “She had banned all visitors and all phone calls,” Comey noted, but the president was dispatching Card and White House Counsel Alberto Gonzales to see Ashcroft.
Comey ordered his security detail to rush him to the hospital, where he and his men ran up the stairs and into Ashcroft’s darkened room. Card and Gonzales had not yet arrived, so Comey called the FBI director, Robert Mueller, who was also on his way, to make a precautionary request: that he order an FBI detail guarding Ashcroft to prevent the White House officials from removing Comey from the room during the coming confrontation. Comey was joined at the hospital by Goldsmith, whose doubts about the program’s legality had provoked the review, and another staff member, Patrick Philbin, an archconservative who had helped in the assessment.
When Card and Gonzales entered, carrying the authorization they wanted signed, Ashcroft rallied long enough to rebuff them. “He lifted his head off the pillow,” said Comey, “and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me—drawn from the hour-long meeting we’d had a week earlier—and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent, and said to them, ‘But that doesn’t matter, because I’m not the attorney general.… There is the attorney general,’ and he pointed to me, and I was just to his left.”
Card and Gonzales “did not acknowledge me,” Comey said. “They turned and walked from the room.” Then summoned to a late-night White House meeting, Comey told Card and Gonzales that there was no legal basis for the surveillance. Yet the next day, Bush extended the program over the Justice Department’s disapproval, triggering threats from Ashcroft, Comey, and other senior officials to resign en masse.67 Mueller, the FBI director, drafted a letter saying he was ready to “withdraw the FBI from participation in the program” and resign.68 The rule of law was being tested at the highest level.
Faced with such a high-profile protest, Bush then called Comey aside after a routine counterterrorism briefing on March 12, spoke with him alone for fifteen minutes for “a very full exchange” of views, then met alone with Mueller, who “carried to me the president’s direction that we do what the Department of Justice wanted done to put this on a sound legal footing,” Comey said. “And then we set about—I don’t remember exactly how long it was—over the next few weeks making changes so that it accorded with our judgment about
what could be certified as to legality.”
Intelligence officials told Eric Lichtblau vaguely that the NSA was ordered to shut down certain unspecified techniques using “data-mining to trace communications patterns across U.S. borders,” and that a twenty-item checklist was developed to assess whether a person could legitimately be designated for eavesdropping.69 Whatever these mysterious changes, they satisfied Comey enough to get his signature on the reauthorization, and he remained in office nearly a year and a half longer. However, Cheney blocked Philbin’s promotion to deputy solicitor general,70 despite Philbin’s extremely conservative credentials: He had clerked for the right-wing federal appeals court judge Laurence Silberman and had written two legal opinions later overturned by the Supreme Court, one supporting the president’s “inherent authority” to establish military commissions without congressional statute, the other arguing that Guantánamo Bay prisoners had no habeas corpus rights in federal courts.71
How was the surveillance revised? Speculation within Washington legal circles took two paths: Either Comey was a stickler for detail and had drawn some internal procedural line that previously had been crossed, or the monitoring had been aimed at purely domestic communications, probably wholesale interception of e-mails inside the United States as well as those involving at least one party overseas.
In any event, the change that erased Comey’s objections did not satisfy one of the FISA judges, James Robertson, who quietly resigned from his FISA responsibilities more than a year later, after the Times broke the story about the surveillance. Only the two judges who had presided over the Foreign Intelligence Surveillance Court during the period had been briefed by administration officials on the spying; most of the others hadn’t known a thing about it.72
Robertson, a federal district court judge in Washington, D.C., pointed to two concerns: First, he did not want to be part of a system in which the executive branch could either choose or reject judicial oversight according to the president’s fancy; the Constitution did not make going to court optional. Second, Robertson felt he could not intelligently decide whether FISA warrant applications had sufficient probable cause if he didn’t know the source or the reliability of the information; he and other judges were afraid that some applications might be tainted by having originated in the warrantless NSA monitoring. The presiding judge in 2004, Colleen Kollar-Kotelly, complained about just that, according to the Times, worrying that in using information collected secretly by the NSA, the government may have misled the court about its sources in warrant requests. The administration had even concealed the NSA as the origin of intelligence information distributed to the CIA and the FBI, James Risen reported.73
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