by Tim Shorrock
Months later, with the Senate deadlocked on the immunity bill, McConnell wrote a letter to Bond describing how the changes to FISA over the summer had helped the Intelligence Community. According to the DNI, “PAA collection activities” had provided the NSA and other agencies with a plethora of information about terrorist activities, including planned attacks, efforts by individuals to become suicide bombers, instructions about illegally entering the United States, plans to travel to Europe and disguise their appearances, as well as attempted money transfers and “movements of key extremists to evade arrest.” “The IC must continue to collect information of this nature if we are to stay ahead of terrorist and other threats to the United States,” McConnell concluded.67*
But over the course of the year, McConnell began adding a new wrinkle to the Bush administration’s proposals to expand FISA. The old law, he explained in May 2007, had mechanisms so the NSA could obtain a court order directing a communications carrier to assist the government in electronic surveillance. But it didn’t provide “a comparable mechanism with respect to authorized communications intelligence activity.” And here he made an interesting statement. The new legislation, he said, should provide the government with means to obtain the aid of a court “to ensure private-sector cooperation with lawful intelligence activities and ensure protection of the private sector.”
What McConnell, the Intelligence Community, and the Bush administration seemed to be proposing was a new system that would allow the government to use the telecommunications system itself for intelligence and surveillance. They wanted a permanent alliance between the most powerful elements of the state—the U.S. intelligence enterprise—and all U.S. companies with the means to tap the world phone and Internet system. The full implications were finally spelled out by Vice President Cheney in his speech to the Heritage Foundation on the eve of a 2008 congressional vote on the FISA bill. “We’re dealing here with matters of the utmost sensitivity,” Cheney said in the slow, chilling cadence that has become his trademark. “It’s not even proper to confirm whether any given company provided assistance. But we can speak in general terms. The fact is, the Intelligence Community doesn’t have the facilities to carry out the kind of international surveillance needed to defend this country since 9/11. In some situations, there is no alternative to seeking assistance from the private sector. This is entirely appropriate.” This way of thinking marked a qualitative change from the old regime, which respected the Constitution and merely asked private companies for technical assistance in the legal monitoring of telephone calls and e-mails. The system envisioned by McConnell and Cheney is a new kind of private-public partnership, operating in secret and beyond the reach of the law—and has laid the groundwork for what has become a massive system of domestic surveillance.
On October 23, 2007, a U-2 photoreconnaissance aircraft lifted off the runway at Beale Air Force Base in California, the home of the U.S. Air Force 9th Reconnaissance Wing and one of the most important outposts in the U.S. Intelligence Community. Known as the Dragon Lady, the U-2 was originally built in secret by Lockheed Corporation for the Central Intelligence Agency. It has provided some of the most sensitive intelligence available to the U.S. government, including thousands of photographs of Soviet and Chinese military bases, North Korean nuclear sites, and war zones from Southeast Asia to the Middle East. Hours later, a second aircraft—the unmanned drone known as the Global Hawk—was launched from the same base. Developed by the Defense Advanced Research Projects Agency during the 1990s, the U.S. fleet of Global Hawks was built for the Air Force by Northrop Grumman and has been deployed in foreign skies almost continuously since September 11, 2001. Currently, Global Hawks are used extensively for combat and surveillance missions in Iraq and Afghanistan.
But the U-2 and Global Hawk that went airborne that day weren’t headed overseas to collect foreign intelligence or to spy on Al Qaeda and its affiliated fighting units in the Middle East and South Asia. Instead, their destination was the skies over Southern California, which had been filled for the last two days with smoke and ash from one of the worst forest fires to hit the state in its history. The U-2 recorded high-resolution photographs of the damage, and the Global Hawk, which was on its first-ever domestic mission, captured infrared images to give state and federal emergency crews the ability to predict the direction of the fires and determine where the calamity was most intense.68 The next day, as the photos and images were processed, they were compared to commercial imagery produced by the National Geospatial-Intelligence Agency, which had been working with the Federal Emergency Management Agency on recovery efforts since President Bush declared the fires a major disaster and named FEMA the lead federal agency for the government’s response. The NGA, the nation’s newest intelligence agency, also had analysts working around the clock deployed to FEMA’s Joint Field Office in Pasadena, California, and could draw on its domestic imagery teams permanently assigned to the Department of Homeland Security and the U.S. Northern Command in Colorado.69
The role of one of the nation’s most powerful intelligence agencies in the California fires received little attention outside of a few military and space publications. On one level, the engagement of the agency, as well as the U-2 and Global Hawk flights over U.S. territory, were commendable efforts to use America’s vast surveillance powers for the safety and security of its citizens. But at the same time, the incident symbolized a new period in American history when U.S. intelligence agencies created to spy on foreign countries are being deployed to collect information on the United States homeland during domestic crises. It comes on top of a series of intelligence operations mounted within the continental United States since September 11, 2001. Those operations, as we’ve seen in this book, include the NSA wiretapping programs and the construction of its cyber-pipeline into telephone customer databases and the Internet; the Pentagon’s extensive monitoring of domestic threats through the Counterintelligence Field Activity office and NORTHCOM; and the employment of companies such as IBM, SAIC, CACI, and ManTech to apply data mining techniques to the vast collection of information on U.S. and foreign citizens compiled by the NSA, CIFA, the Defense Intelligence Agency, and other sectors of the Intelligence Community. Taken collectively, these efforts have created a national surveillance net that has fostered a deep unease in the body politic about the new domestic powers of U.S. intelligence.
Sometime in 2008, the relationship between the Intelligence Community and homeland security will take a critical leap forward when the Bush administration puts in place a plan to allow the NSA, the NGA, the DIA, and the National Reconnaissance Office to share classified signals intelligence, imagery, and measurement and signatures intelligence from military spy satellites with federal and local law enforcement agencies. Under a program that was approved in May 2007 by the Office of the DNI and the Department of Homeland Security, a new office called the National Applications Office (NAO) will be established within DHS as a buffer between the spy agencies and the domestic security apparatus. Admiral McConnell has been involved in the program since its inception: while he was still working for Booz Allen Hamilton in the spring of 2005, his company contracted with the ODNI to manage a study about how foreign and domestic intelligence could be better integrated. The study team concluded that there was “an urgent need for action because opportunities to better protect the homeland are being missed.” It was directed by Keith Hall, a vice president of Booz Allen who once directed the NRO.70
According to a Homeland Security fact sheet, the NAO will provide to federal and local agencies “more robust access” to “remote sensing information” as well as “the collection, analysis, and production skills and capabilities of the intelligence community.”71 Charles Allen, the veteran intelligence officer at DHS who was designated to run the office, explained to reporters that the NAO was a natural response to the terrorist attacks of 2001. “The view after September 11 was that we ought to move this to Homeland Security and broaden the domain,” he said. “Th
ese systems are already used to help us respond to crises. We anticipate that we can also use it to protect Americans by preventing the entry of dangerous people and goods into the country, and by helping us examine critical infrastructure for vulnerabilities.”72
Many lawmakers and civil liberties advocates are leery about the new office and the growing integration of foreign and domestic intelligence. “It will terrify you if you really understand the capabilities of satellites,” Jane Harman, a leading figure on the House Intelligence Committee, said in September 2007, after word of the McConnell plan was leaked to the Wall Street Journal. Harman represents a coastal area of Los Angeles where many of the nation’s satellites are built (she once referred to her California district as “the intelligence satellite capital of the universe”73) and is acutely aware of the power of classified military spy satellites, which are far more flexible, offer greater resolution, and have considerably more power to observe human activity than commercial satellites operated by the U.S. companies GeoEye and DigitalGlobe. Even if the Bush administration could set up a program with the proper legal framework, she warned in a House hearing on the McConnell plan, the possibility exists for serious misuse. “Even if this program is well-designed and executed someone somewhere else could hijack it,” she said.74 Kate Martin, the director of the Center for National Security Studies, a nonprofit advocacy organization, has likened the plan to “Big Brother in the Sky.” The Bush administration, she said, is “laying the bricks one at a time for a police state.”75 We’ll return to the NAO and its corporate promoters later. For now, let’s consider some of the political implications for what legal scholars are now calling a national surveillance state.
That ominous-sounding term was coined by two law professors, Jack M. Balkin and Sanford V. Levinson, who teach at Yale Law School and the University of Texas School of Law respectively and contribute to Balkinization (balkin.blogspot.com), the blog edited by Balkin that follows the twists and turns of constitutional law under the Bush administration. In October 2006, they co-wrote a lengthy piece on their theories for the Fordham Law Review.76 The national surveillance state, they said, is “characterized by a significant increase in government investments in technology and government bureaucracies devoted to promoting domestic security and (as its name implies) gathering intelligence and surveillance using all of the devices that the digital revolution allows.”
Among the developments that have made such data collection and data mining possible, Balkin and Levinson wrote, are “high-speed computers, lower costs of telecommunication and computer storage, and complex mathematical algorithms [that] allow computers to ‘recognize’ patterns in speech, telephone contact information, e-mail messages, and Internet traffic that might indicate possible terrorist or criminal activity.” And with the United States a likely target for future terrorist attacks, electronic surveillance, data mining, and the construction of what they call “digital dossiers” have become increasingly common in America.
Balkin and Levinson caution that the national surveillance state is “not simply a product of the September 11 attacks” or necessarily a “product of war.” What has become known as the war on terror, they argue, is actually a “sustained set of interlocking strategies for dealing with new forms of global threats and new technologies of attack by a host of different organizations, some sponsored by nation-states, and others acting more or less on their own.” And they contend that the technologies of surveillance would have been produced whether or not the United States was attacked in 2001: “As soon as these technologies became widely available, it was inevitable that governments would seek to employ them, both to enjoy their advantages and to counter the dangers of the same tools in private hands”; the digital age, therefore, “has altered the technologies of crime and, concomitantly, the way that the state can respond to crime.”
Most important to our inquiry, they argue that focusing on war as the primary cause of the surveillance state “overlooks the fact that surveillance technologies that help the state track down terrorists can also be used to track and prevent domestic crime.” And because the surveillance state is not “subject to the oversight and restrictions of the criminal justice system, the government may be increasingly tempted to use this parallel system for more and more things. It may argue that the criminal justice system is outmoded and insufficiently flexible to deal with the types of security problem it now faces.”
Once databases of all phone calls have been compiled—as we’ve just seen—they can be combined with consumer data available from any number of private sector organizations. “This allows governments to produce rich digital dossiers that might be employed either by the nation’s national security agencies or its criminal law enforcement divisions,” Balkin and Levinson conclude. “The information that is useful to the one will increasingly be useful to the other.” Finally, “the government will be tempted to move increasingly from investigation and arrest after crimes occur to surveillance, prevention and interception before crimes occur.” That brief analysis captures the significance of the privatization of our intelligence system: all that technology funded by the government to promote security and build digital dossiers on suspected terrorists is supplied by SAIC, IBM, CACI, ManTech, and the other members of the Intelligence-Industrial Complex. Let us now review how the public-private intelligence apparatus that has been built over the past decade came to be directed at the American homeland.
The logical starting place for this history is Dick Cheney’s infamous One Percent Doctrine and the Bush administration’s policies of preemption. Under these theories, even if there is only one chance in a hundred that a certain scenario threatening U.S. security might happen—a terrorist attack, for example, or a launch of a missile by an unfriendly government—the United States has the obligation to go on the attack and prevent that scenario from taking place. That has shifted the paradigm for domestic law enforcement by making it the duty of the government to use its intelligence resources to help law enforcement agencies preempt attacks before they happen, beyond the traditional practice of gathering evidence to prove a crime that took place in the past. According to former Attorney General John Ashcroft, who was part of the inner circle of officials who set the initial policies for the global war on terror, that shift from solving crimes to detecting pre-crime took place almost immediately after 9/11.
In the days after the September 11 attacks, he told a 2006 conference on network centric warfare, President Bush and Vice President Cheney made it clear to their war cabinet that their primary mission was preventing another attack. Ashcroft, despite his apparent opposition to parts of the NSA surveillance program, understood that the Bush-Cheney directive, and its evolving theories on preemption, required sifting through enormous amounts of data to find the patterns that might lead investigators to a plot. “The amount of information you have to have in order to anticipate the future is exponentially greater if your job is to disrupt, interrupt, displace and otherwise make impossible something that is going to happen unless you intervene,” he said. The “mandate to prevent is a very significant mandate, and requires significantly more resources, sophistication and capacity to understand what’s going on.” But the volume of information out there, he added, “is so great that we must be able to process information basically in ways that human minds are incapable of doing. So I encourage you to utilize the capacities that exist in data processing and make sure we have our data and intelligence formatted properly.”77
(Ashcroft’s speech was self-serving. In 2006, after leaving the Department of Justice, he formed a consulting company, the Ashcroft Group LLC, which represents about thirty clients, many of which make products or technology designed to help the government conduct surveillance and counterterrorism investigations. One of his biggest clients is AT&T; another is ChoicePoint Inc., the Atlanta data aggregation company and the nation’s leading supplier of identification services. It holds some 17 billion records of individuals and businesses, which it
sells to private sector companies as well as the U.S. government and the Intelligence Community. ChoicePoint also owns i2, a British company that has become one of the leading providers of visual investigative analysis software for U.S. intelligence.)78*
Another great shift involved the idea that the U.S. homeland itself was now a battleground. That concept first took hold in 2002, when the Pentagon established NORTHCOM in Colorado to provide command and control of military efforts within U.S. borders. NORTHCOM was given two primary responsibilities: providing military security during national emergencies, including terrorist attacks and natural disasters; and protecting important U.S. military bases in the fifty states. As part of the Pentagon’s domestic security mission, former Secretary of Defense Donald Rumsfeld created the Counterintelligence Field Activity office in 2002 and filled its staff with contractors from Booz Allen, BAE Systems, SAIC, and other suppliers of cleared personnel. CIFA, as we’ve seen, was used as a weapon against people suspected of harboring ill will against the Bush administration and its policies. Yet even though retired Air Force General James Clapper, the undersecretary of defense for intelligence, has expressed concerns about CIFA’s domestic reach, the agency remains an integral part of the Pentagon’s counterterrorism efforts.*