The argument that conduct undertaken by the Commander-in-Chief that has some relevance to “engaging the enemy” is immune from congressional regulation finds no support in, and is directly contradicted by, both case law and historical precedent. Every time the Supreme Court has confronted a statute limiting the Commander-in-Chief’s authority, it has upheld the statute. No precedent holds that the President, when acting as Commander-in-Chief, is free to disregard an Act of Congress, much less a criminal statute enacted by Congress, that was designed specifically to restrain the President as such.36
Interviews reveal that these same concerns are shared by a number of mostly retired NSA officials, some of whom lived through the Church Committee hearings of 1975 on the agency’s illegal domestic operations. At the heart of their unease is the fact that many of them just plain don’t like spying on Americans, no matter what the stated legal rationale, the predominant feeling being that NSA should remain a strictly foreign intelligence agency and not get caught up in domestic surveillance work. An NSA staffer had this to say in an anonymous e-mail posting sent to a magazine: “It’s drilled into you from minute one that you should not ever, ever, ever, under any fucking circumstances turn this massive apparatus on an American citizen. You do a lot of weird shit. But at least you don’t fuck with your own people.”37A retired NSA official, worried about the future ramifications for the agency resulting from the political furor over the its domestic operations, said, “This is just plain cops and robbers stuff . . . This whole thing is a matter for the FBI counter-terrorist types. We shouldn’t have anything to do with this at all.”38
Most of the NSA officials interviewed for this book do honestly believe that the agency’s warrantless eavesdropping program and other still-undisclosed NSA intelligence-gathering efforts are a necessary and important component in the fight against al Qaeda. However, a number of them have become increasingly uneasy since that first New York Times article about the legality of these programs. One recently retired NSA official wondered why the NSA eavesdropping program could not have been conducted within the strictures of FISA, given the fact that the agency has stated that FISA has in no way hampered its other SIGINT collection operations. For instance, in a March 2005 report to President Bush on the U.S. intelligence community’s performance against the Iraqi WMD programs, NSA officials testified that FISA “has not posed a serious obstacle to effective intelligence gathering.” It should be noted that at the time that NSA made this statement to the review panel, the agency’s secret domestic eavesdropping program, which deliberately bypassed the FISC, had been ongoing for almost three and a half years without the court’s knowledge or consent.39
Another former senior NSA official was shocked when he read in the newspapers that in May 2006 the Justice Department’s Office of Professional Responsibility (OPR) had been forced to shut down an internal investigation into the department’s involvement in the NSA eavesdropping program because Vice President Cheney’s office had refused to grant the security clearances the investigators needed in order to gain access to documents relating to the program. Only after Michael Mukasey replaced Alberto Gonzales as attorney general in November 2007 did the White House finally relent and grant the security clearances to the OPR investigators.40
A small number of NSA officials have been disturbed by the Bush administration loudly and repeatedly arguing that the NSA eavesdropping programs are perfectly legal while at the same time widely using the “state secrets” privilege to quash all lawsuits filed by state regulators and activist groups questioning their legality, contending that any discussion whatsoever in a federal court house, even if held in secret, would constitute a threat to the program. Former NSA officials recall that this was the exact same argument used by Nixon administration lawyers during the early 1970s in their unsuccessful effort to prevent the publication of the Pentagon Papers. As it turned out, the publication of the Pentagon Papers caused no meaningful or lasting damage to U.S. national security, but gravely embarrassed the Johnson and Nixon administrations by revealing the tortured path that had led the United States to become involved in the Vietnam quagmire and the mistakes made by the White House in managing the war. This has led many NSA officials to wonder about the legality of these programs. One former senior NSA official whimsically said, “They [the Bush White House] are behaving like they have something to hide rather than something to protect, which scares the shit out of me.”41
But most disturbing to a number of former and current NSA officials have been the press reports and testimony before Congress by former Justice Department officials revealing that there were significant disagreements between the White House and the Justice Department over the legality of parts of the NSA domestic eavesdropping programs. In May 2007, news reports offered details of an encounter that took place in March 2004 between Justice Department and White House officials at the bedside of Attorney General John Ashcroft as he lay gravely ill in a room at George Washington University Hospital. What sparked the encounter was Ashcroft deputy James Comey’s refusal to reauthorize the NSA domestic eavesdropping program unless substantive changes were made to the underlying authorization order. The White House refused to make the changes and tried to do an end run around Comey by sending White House chief of staff Andrew Card and then–White House legal counsel Gonzales to visit Ashcroft at his bedside and get him to reauthorize the program. Alerted that Card and Gonzales were on their way to see Ashcroft, Comey raced up to the hospital, beating the two White House officials by only a matter of minutes. To his credit, Ashcroft refused to reauthorize the program unless the changes that Comey wanted were made. And to add insult to injury, Ashcroft reminded Card and Gonzales that in his absence, Comey was the attorney general of the United States, leaving unsaid the fact that their attempt at an end run was inappropriate.42
After the Comey battle with the White House came out in the press, one currently serving midlevel NSA manager, who was not involved in the war-rantless eavesdropping program or related NSA domestic surveillance programs, said, “I wonder what else they’re not telling us. It sure as hell doesn’t look or smell very good.”43
A few months later came further revelations that those few Justice Department officials who had been cleared to examine the NSA domestic eavesdropping programs had found the legal justifications for conducting the programs to be at best flawed. The former head of the Justice Department’s Office of Legal Counsel, Jack Goldsmith, who reviewed the NSA program in 2003–2004, testified before Congress in October 2007 that he “could not find a legal basis for some aspects of the program,” adding, “It was the biggest legal mess I have ever encountered.”44
Goldsmith’s assessment of the legality of the NSA program was confirmed by a number of recent court rulings, including a still-secret March 2007 FISC ruling that found that elements of NSA’s domestic eavesdropping effort were illegal. The FISC judge’s ruling says, in effect, that certain aspects of NSA’s monitoring of foreign communications passing through U.S.-based telephone switching centers and Internet service providers are patently illegal. According to Newsweek, the judge, whose identity remains a secret, concluded “that the [Bush] administration had overstepped its legal authorities in conducting war-rantless eavesdropping.” As a result, the judge refused to reauthorize the program until such time as it was brought into conformance with FISA.45
The Fear of the Unknown
In the end, the fear among a number of retired NSA officers is that the agency’s domestic eavesdropping program, in addition to generating much unwanted negative publicity for the agency, almost certainly diverted much-needed manpower and fiscal resources from NSA’s foreign-intelligence-gathering mission to what the agency officers generally believe to have been a poorly considered and legally questionable domestic monitoring operation that apparently has produced little in the way of tangible results, despite claims to the contrary from the White House.46
Sadly, it seems likely that it will take years before the classifie
d storage vaults are opened and a better understanding of the NSA warrantless eavesdropping program becomes available. Until then, it will be impossible for the American public to fully understand, much less appreciate, the implications of the NSA program and the culture of fear that gave birth to it and continues to sustain it today. Two senior Justice Department officials interviewed for this book, while refusing to provide any specifics, strongly suggested that future public disclosures about the nature and extent of the NSA domestic eavesdropping program will almost certainly raise troubling questions about not only the viability of the program, but also its legality and its overall effectiveness.
But perhaps most troubling of all is the grim acceptance among virtually all of the former and currently serving NSA officials interviewed for this book that, sooner or later, the details of the agency’s domestic eavesdropping programs will be disclosed publicly. The concern felt by most of the officials is that the agency, for better or for worse, will bear the brunt of what an NSA retiree called “the frightful harvest” once it becomes known what NSA has done since 9/11. A former NSA official offered this prediction about what the agency is inevitably going to have to face: “There almost certainly will be a host of lawsuits as well as demands for changing existing laws so as to tighten restrictions on what NSA can and cannot do. The pundits will have a field day, and we are going to take it in the pants.”47
The Uncertain Future
General Keith Alexander inherited an agency in 2005 that was dramatically larger and better funded than that inherited by his predecessor, Mike Hayden. Before the tragic 9/11 terrorist attacks, the thirty-two-thousand-person NSA, with an annual budget of less than four billion dollars, was struggling to transform and modernize itself with only mixed success to show for its efforts. 48 Today, the agency’s manpower has topped forty thousand people, and NSA officials indicate that the agency intends to continue with its 2004 project of hiring twelve thousand additional civilian personnel by 2011. NSA’s annual bud get is now estimated to be in excess of nine billion dollars, having more than doubled in the first five years after the 9/11 terrorist attacks, and press reports indicate that it continues to increase rapidly.49If one accepts the publicly reported figures for the size of the U.S. intelligence budget (forty-eight billion dollars as of May 2007), NSA’s budget accounts for almost 20 percent of all U.S. intelligence spending, not including the U.S. military’s spending on tactical SIGINT programs.50
Moreover, the SIGINT empire that NSA controls, known as the U.S. Cryptologic System (USCS), which includes SIGINT personnel assigned to the CIA, the National Reconnaissance Office (NRO), the three military services, and the U.S. Coast Guard, has grown to more than sixty thousand military and civilian personnel since 9/11, making it by far the single largest component of the U.S. intelligence community. NSA is in the process of opening new operations centers in San Antonio, Texas; Denver, Colorado; and Salt Lake City, Utah, which when completed will employ several thousand civilian and military staff.51In February 2006, Congress passed an emergency supplemental appropriations bill, which included thirty-five million dollars to immediately expand NSA’s huge listening post at Men with Hill, in northern En gland, as well as another seven hundred million dollars to construct new operational facilities at the agency’s existing intelligence collection stations at Kunia, in Hawaii, and Fort Gordon, in Georgia.52
But NSA’s power within the U.S. intelligence community is not derived from its massive size and bud get, as significant as they may be. Rather, its power stems from the fact that the agency continues to produce the majority of the actionable intelligence coming out of the U.S. intelligence community today. As of 1995, NSA was capable of intercepting the equivalent of the entire collection of the U.S. Library of Congress (one quadrillion bits of information) every three hours, and this figure has increased by several orders of magnitude since 9/11.53 Prior to the 9/11 disaster, approximately 60 percent of the intelligence contained in the Top Secret President’s Daily Brief, sent to President Bush every morning, was based on SIGINT coming out of NSA. Today, this number is even higher, as NSA’s access to global telecommunications has expanded dramatically since the tragedy.54
A number of senior U.S. military officials have recently voiced amazement at both the quantity and the quality of the intelligence that they received from NSA’s huge listening post at Fort Gordon, which is now known as NSA/CSS Georgia. One senior U.S. Navy officer who toured the Fort Gordon station in 2006 was stunned by the breadth of the intelligence being produced by the site’s intercept operators, linguists, and analysts, including hundreds of linguists speaking ten different dialects of Arabic, as well as Hebrew, Farsi, Pashto and Dari (used in Afghanistan), and the Kurdish dialect spoken in northern Iraq.55As one might imagine, the wars in Iraq and Afghanistan dominate much of the SIGINT collection work now being done at Fort Gordon. There was an operations center called Cobra Focus, where many of NSA’s best Arabic linguists were producing vitally important intelligence on Iraqi insurgent activities from intercepted cell phone calls relayed to the station via satellite from inside Iraq. Another new operations center, whose cover name is Airhandler, was producing the same kind of intelligence, but concerning Afghanistan. NSA was also running its own highly sophisticated intelligence fusion center inside the operations building called NSA/CSS Geospatial Cell, where agency analysts pulled together all of the SIGINT being collected by the station and other NSA listening posts into a finely tuned written product for the agency’s ravenous customers around the world. “I was very impressed,” the officer said. “These guys were producing some of the best intelligence available on what the bad guys were up to . . . We were definitely getting our money’s worth out of that place.”56 Other lesser-known NSA success stories include a host of new high-tech collection systems introduced since 9/11 that have allowed the agency to surreptitiously access al Qaeda, Taliban, and Iraqi insurgent telephone, radio, walkie-talkie, e-mail, and text-messaging traffic. For example, one little-known target is the e-mail traffic of known or suspected terrorists; monitoring this traffic is managed by a super-secret NSA office at Fort Meade called Tailored Access Operations (TAO). Working closely with the CIA and other branches of the U.S. intelligence community, TAO identifies computer systems and networks being utilized by foreign terrorists to pass messages. Once these computers have been identified and located, a small group of computer hackers belonging to the U.S. Navy, who call themselves “computer network exploitation operators,” assigned to yet another reclusive NSA intercept unit at Fort Meade called the Remote Operations Center (ROC), break into the systems electronically to steal the information contained on the hard drives, as well as monitor the e-mail traffic coming in and out of the computers. Intelligence sources indicate that the TAO/ROC computer search-and-exploitation operations have in a number of instances provided immensely important intelligence about foreign terrorist activities around the world.57
Interviews with intelligence officials in Washington suggest that since 9/11 NSA has improved somewhat its sometimes rocky relations with its consumers in Washington and elsewhere around the globe. In the spring of 2001, the position of deputy director for customer relations was created within the agency’s SIGINT Directorate to facilitate better communications between NSA and its customers. The first head of this office was Brigadier General Richard Zahner of the U.S. Army.58But despite this change, unhappiness has remained. NSA officials contend that since 2001, the ever-increasing number of its customers in Washington has levied conflicting requirements on the agency, whose resolution has necessitated years of often contentious negotiations. Interviews with intelligence officials reveal that there are still widespread complaints about NSA’s inability or unwillingness to share information with other government agencies. In particular, FBI officials complain about the lack of cooperation that they have received from NSA since 9/11. The single largest barrier to the free flow of intelligence appears to be the compartmentalized nature of NSA itself, which has prevented
an integrated approach to customer relations between NSA and the rest of the U.S. intelligence community.59
Problem Areas
Despite the massive budget increases and unfettered operational discretion granted to the agency by the Bush administration since 9/11, General Alexander’s NSA remains a deeply troubled organization bedeviled by a host of problems, some of its own making, which pose long-term threats to the agency’s viability as the most powerful component of the U.S. intelligence community.
The agency is still spending billions of dollars trying to catch up with the ever-changing and-growing global telecommunications market, and will continue to do so for the foreseeable future. New communications devices, such as the BlackBerry; personal pagers and digital assistants; and, most recently, Skype, the online service that allows people to make low-cost telephone calls through their computers, are all making NSA’s job increasingly difficult. Technological changes are taking place so rapidly that even the most stalwart agency defender admits that NSA will have to continue spending ever-increasing sums to try to keep pace. In addition, the wars in Afghanistan and Iraq have forced NSA to spend billions of dollars rebuilding its ability to intercept and locate low-tech walkie-talkie and tactical radio signals, something the agency tried to rid itself of during the late 1990s because NSA officials believed that these were “legacy” skills that would no longer be needed in the twenty-first century.60
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