In the aftermath of 9/11, critics often commented that the United States had been unable to “connect the dots.” The truth is, at that time in our history, not only could we not connect the dots, we were not even able to collect the dots. Worse yet, we didn’t know what dots existed to collect.
Nevertheless, from that first strategy session at Camp David the weekend after the 9/11 attacks, everyone in the room understood that this new kind of war demanded a new kind of response. In an age where electronic communications are instantaneous, delays can be deadly. We recognized early on that the greatest need we had was for more precise intelligence information. If we hoped to uncover terrorists’ threats and thwart them before they could be launched, we had to improve our ability to see and hear electronically. Information about our enemies was our first line of defense in stopping terrorist attacks, as well as our best hope of bringing terrorists to justice.
But that created a whole new set of problems when it came to balancing the protection of our citizens’ civil liberties and the vigorous pursuit of terrorists. In a lively discussion at Camp David, CIA director George Tenet told the president that we had a number of capabilities to gather information, but because of legal interpretations regarding the laws existing at the time, there were some limits and questions about whether or not we had the statutory legal authorities to use these capabilities—especially when it came to collecting clues about possible terrorist activities inside the United States.
As noted earlier, our intelligence agencies were working under the Foreign Intelligence Surveillance Act (FISA), which focused primarily on legal permissions for the government’s acquisition and collection of certain electronic communications, obtained for a foreign intelligence purpose. While FISA was a valuable tool in collecting information and a valuable safeguard against intelligence agencies overstepping their boundaries, it was outdated for some types of intelligence investigations. Furthermore, it was designed more to look backward at crimes to conduct prosecutions, rather than looking forward to prevent attacks on the American people.2
Vice President Cheney asked George Tenet if the NSA had the authorities they needed to protect America. Tenet said he would check with the NSA director, Mike Hayden.3 General Mike Hayden was one of the most highly regarded officials in the Bush administration. An articulate, soft-spoken man, and an air force four-star general, Mike looked more like a university math professor than a rough-and-tumble military general, but he was a smart leader and a straight shooter whom I respected and liked. He was passionate about doing everything possible to protect our country, yet he recognized the need to protect our citizens’ privacy as well. As did most people in the Bush administration, I had the highest regard for General Hayden’s honesty and integrity.
The morning our nation was attacked, General Hayden immediately moved to enhance NSA’s collection of information. He later recalled, “On September 11, there were authorities within the range of abilities of the director of the National Security Agency to adjust how America collects intelligence, how aggressive America might want to be. Fully within my authorities, I made some decisions about being more aggressive. I mean, we’re held to the reasonableness standard of the Fourth Amendment, [of] no unreasonable search and seizure. Well, what constitutes the reasonableness that afternoon was different than the reasonableness that morning, and I made some changes.”4
Following the Camp David session, George Tenet contacted Hayden about what else could be done. Hayden recalls the conversation:
George calls me and says: “Mike, any more you can do?”
I said, “George, no, not within my authorities, not within my current authorities.”
And he paused and said: “That’s not actually the question I asked you. Is there anything more you could do?”
I said, “I’ll get back to you.”
So I sat down with my leadership team, both operations and legal, and put together several things that we could do, that we felt might have specifically addressed the problems that were laid bare by 9/11, if we had the authority to do it.5
My job was to work with lawyers in the administration, particularly at the Department of Justice and NSA, to provide the legal guidance to support the NSA in gathering information. The goal was to help NSA do whatever was necessary, yet lawful, to gather information useful to prevent another attack and to make our country more secure in the future. No easy task.
Moreover, Attorney General John Ashcroft and his team were already working on proposed legislation known as the USA PATRIOT Act that would tear down the wall of separation between our various intelligence and law enforcement agencies so they could more freely share information about potential threats. The PATRIOT Act would allow our law enforcement officers to now track terrorists with tools that had been readily available and often employed to investigate organized crime in the United States. The PATRIOT Act was passed by overwhelming bipartisan majorities in both houses of Congress and signed into law by President Bush in October 2001.
The Fourth Amendment prohibits unreasonable searches or seizures of a person or property. A search with a warrant based on probable cause and issued by a federal judge is considered reasonable. There are, however, long recognized exceptions to the warrant requirement. For instance, exceptions have been recognized by the courts with respect to security checkpoints at airports, locker searches at schools, sobriety checkpoints, searches incident to arrest or to prevent the destruction of evidence, or to protect a life. Another recognized exception to the warrant requirement allowed searches based on national security needs. But there was still a statutory hurdle of FISA we had to overcome.
Once the NSA reported that they could do more when it came to collecting information about terrorists’ phone calls and e-mails, the Justice Department was asked to examine whether using those capabilities was lawful. The governing statute was FISA, which set out the general rules for the government’s collection of certain forms of electronic surveillance. The task of analyzing the statute fell primarily to John Yoo, OLC’s resident expert lawyer regarding presidential war powers and who was also regarded as OLC’s best on the legal issues regarding our response to terrorism. Because such a thing had never been done before, over a period of time, General Hayden had three of his most experienced lawyers in the field of electronic collections as they related to privacy rights examine the program. Hayden’s lawyers at NSA concluded the activities were legal based solely on the commander in chief ’s authority.6 More important, Yoo and other lawyers at Justice agreed that the president had authority to defend the nation in response to an attack by the enemy. It has always been a fundamental aspect of war to collect information about the enemy. John Yoo concluded that the president’s commander in chief authority under the Constitution to do everything necessary to protect our nation gave the president limited authority to collect and analyze electronic data beyond the rules of FISA.
Consequently, on October 4, 2001, bolstered by the legal guidance of the Justice Department, the president executed a presidential memorandum that authorized for a specific period of time a number of electronic intelligence collection activities, code named Stellar Wind. During World War I and World War II, Presidents Wilson and Roosevelt respectively had authorized massive collection of all sorts of information about private citizens. The lawyers examining the current situation and the precedents concluded we were on safe legal ground. Of course, unlike in previous wars, before moving forward with Stellar Wind, we had to analyze whether the FISA law did not preempt, diminish, or extinguish the president’s authority under the Constitution.
The presidential authorizations were generally only for a period of forty-five days and then they were required to be reauthorized by the president, based on the recommendations of a number of high-level administration officials.
The DOJ lawyers concluded that the president’s legal ability to authorize Stellar Wind was based in part on the threat to America. Consequently, the president’s written authorizations
to the NSA to conduct Stellar Wind were based on the intelligence threat at the time of each respective reauthorization. The most current CIA intelligence threats were reflected in a written document and attached to the authorization each time it was renewed by the president.
Only a handful of individuals in the White House were even aware of Stellar Wind or the authorization process. David Addington, the vice president’s chief counsel, and I were the only White House lawyers involved. Not even the White House staff secretary—charged with overseeing every document presented to the president—touched the Stellar Wind authorization.
The total program contained what we referred to as three large “baskets,” one of which, Basket I, came to be known as the Terrorist Surveillance Program (TSP). It involved content collection by telephone—actual intercepted international calls when an experienced intelligence officer at NSA had probable cause to think that at least one of the parties on the call was a member of al-Qaeda or an affiliate of al-Qaeda. This was Basket I, and it was the only content collection authorized by the president under this program.
Basket II involved the acquisition and analysis of bulk telephone metadata—information about the participants, time, date, and the duration of telephone calls, but not the content. We did not initiate the gathering of this information. The telecom companies collected it for their own purposes.
Basket III concerned bulk e-mail metadata. It is important to understand that Basket III consisted of two distinct activities. The first related to the collection of bulk e-mail metadata; the second involved the analysis of the collected bulk e-mail metadata. These three baskets included everything President Bush authorized under Stellar Wind.
How did it work?
Some aspects of the Stellar Wind program remain classified, including the mechanics of intercepting international calls under Basket I, so many of the details cannot be disclosed. We were, however, able to collect certain information about international calls—and only those international calls on which an experienced intelligence officer at NSA suspected that one or more members of al-Qaeda or an affiliate group were involved on the call.
The telephone records collected under Basket II consisted of dialing-type information (the originating and terminating telephone numbers, and the date, time, and duration of the call), but not the content of the call. The Supreme Court has long held that there is no reasonable expectation of privacy in such records; therefore, the Fourth Amendment is not implicated with respect to government searches of such records.
Building a database of billions of domestic phone records was deemed necessary and lawful. After the database was created, then the information was targeted specifically to al-Qaeda or other terrorism.
When a suspicious number comes across NSA’s “radar,” that specific phone number can be a search target or “seed” for a query of the massive metadata repository only if one of NSA’s seasoned, designated officials (they never numbered more than a few dozen) first determines there exists reasonable, articulable suspicion that the phone number is associated with terrorism. Once the number is approved as a seed, the NSA analysts can run inquiries that will show the call records, and permit “contact chaining,” to retrieve not only the numbers directly in contact with the seed number—referred to as the first “hop”—but also numbers in contact with all first hop numbers—known as the second hop—and numbers in contact with those numbers, referred to as the third hop.
With respect to Basket III, the government’s bulk e-mail metadata collection, the NSA could conduct chaining, similar to the chaining of telephone metadata, as part of its analysis targeted to al-Qaeda and terrorism.
Keep in mind, permission for the NSA to engage perpetually in this specific electronic surveillance was not a given; nor was it a blanket approval authorized once by the president. As noted, every forty-five days Stellar Wind was carefully reviewed; the permission by the president to proceed was contingent upon the recommendation and signature of the CIA director that the surveillance was necessary due to the dire nature of the threats. The secretary of defense also had to sign the recommendation, since NSA operated under the Defense Department; and finally the attorney general examined the program—again, every forty-five days—to make sure what our intelligence people were doing was lawful. Even after the attorney general’s determination and signing off on the legality of the program, continuation of the program remained contingent upon the approval of the president.
The review deadlines were taken seriously. This procedure of checks and balances was considered vital to the program. On one occasion, because of rapidly shifting intelligence, we could not get all the signatures in time before the presidential authorization was set to expire and the president left for a trip to Asia. David Addington and I literally flew overnight to California and back to catch the president and secure his signature so Stellar Wind could continue while he was away. Without the president’s signature, the program would have come to a halt.
Because of the sensitive nature of the intelligence sources and methods involved, beginning in late 2002, almost from the program’s inception, certain congressional leaders were regularly briefed on Stellar Wind. The information in these briefings was highly classified, so we did not do open sessions with the entire Congress, or even the full intelligence committees; only the chairmen and ranking members and key leaders were included. The chief judge of the FISA Court was also briefed in early 2002. With limited exceptions, usually with respect to operational necessity, the president had to personally approve anyone before he or she could be read in to Stellar Wind.7
It was purported afterward that then House minority whip Nancy Pelosi had some problems with Stellar Wind and raised some concerns. Other congressional leaders said they weren’t briefed on the e-mail metadata program.
Michael Hayden later adamantly exposed that lie. “That’s just not true,” he said. “They were briefed on everything we were doing. I had no restrictions from the White House. Look, the White House did not approve my briefing. These were almost always given in the vice president’s office. The vice president was getting it for the first time when I was briefing Congress. We had total control over what we were to tell them. There were no filters, all right? There is no upside in us not being totally candid with members of Congress.”8
The program worked. A tremendous amount of data was collected, and thanks to Stellar Wind, numerous potential or attempted terrorist actions were interrupted. Bluntly stated, terrorists were captured and terrorists’ plans to kill Americans were thwarted in part because of leads or information learned through such surveillance.
Years later, reports came out that the surveillance was ineffective, and that it could not be certain it had ever stopped an imminent terrorist attack. That’s ludicrous logic. Have airport security and the billions of dollars spent on the Transportation Security Administration (TSA) ever stopped an imminent terrorist attack? It’s hard to say, since no attack has happened in our airports since 9/11. But that doesn’t at all mean it’s not worthwhile. Moreover, we can be certain of what happened when we did not have Stellar Wind. Hayden pointed out a poignant example:
Two guys, Nawaf al-Hazmi and Khalid al-Mihdhar, living in San Diego . . . meeting in Kuala Lumpur, come to the United States, call home, call Yemen, call a safe house in Yemen seven times. We intercepted every one of the calls, right?
Nothing in the physics of the intercept, nothing in the content of the call told us they were in San Diego. If we’d have had the metadata program, okay, if we’d have had that basket of stuff and that phone number of that safe house in Yemen, which we knew, and we would have walked up to that metadata and said, “Hey, any of you guys talked to this number in Yemen?” those numbers in San Diego would have popped up.9
Hayden’s point is clear: if we had Stellar Wind in place prior to September 11, 2001, we might have been able to intercept two of the 9/11 hijackers. Mike Hayden, George Tenet, Bob Mueller, and John McLaughlin have all testified under o
ath that the program was useful and effective, that the collection of this intelligence saved lives.10
For more than two and a half years following 9/11, the monitoring of telecommunications and cyberspace continued without interruption or interference in the lives of most American citizens. Every reauthorization was reviewed and approved by Attorney General John Ashcroft and the other senior officals during this period of time—on more than twenty occasions.
When John Yoo left OLC in 2003 to return to teaching at UC–Berkeley School of Law, the review of Stellar Wind was turned over to Pat Philbin, then deputy assistant attorney general at OLC, a good, conscientious lawyer with degrees from Yale, Harvard, and Cambridge universities, who had clerked for Supreme Court justice Clarence Thomas. Pat had expertise in telecommunications, and was familiar with the program and Attorney General Ashcroft’s support. Subsequently, Jack Goldsmith, another bright, thoughtful academic, was confirmed as the new head of OLC in October 2003. Jack had earned degrees from Washington and Lee University, the University of Oxford, and Yale, and had taught law at the University of Chicago as well as the University of Virginia before serving in the Department of Defense from September 2002 to June 2003. Prior to that, he had clerked for Supreme Court justice Anthony Kennedy, as well as Court of Appeals judge J. Harvie Wilkinson. Pat and Jack were very bright; I liked them and had confidence in both.
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