PART 3:THE SHADOW FACTORY:THE ULTRA SECRET NSA FROM 9/11 TO THE EAVESDROPPING ON AMERICA

THE SHADOW FACTORY
The Ultra Secret NSA from 9/11 to the To The Eavesdropping on America 
BY JAMES BAMFORD 

Pentagon 

Cindy Farkus again broke into Hayden’s meeting, but this time she was almost running. Another plane had hit the second tower, she said. “One plane’s an accident, two planes is an attack,” said Hayden, who immediately adjourned his meeting and asked Farkus to quickly summon the agency’s top security officials to his office. L. Kemp Ensor, the National Security Agency’s associate director for security, walked into the director’s office with his assistants. “As they were walking through the door, I knew exactly what we needed to do and I said, ‘All nonessential personnel out of here.’ Out of the complex,” said Hayden. 

Throughout the NSA, loudspeakers began sounding. “All nonessential personnel are to leave the building,” came the announcement over and over. Within Alec Station, CIA officers and FBI agents stared at the television in disbelief. “I saw the second plane hit in the office and it was like, oh my God, we’re under attack,” said FBI agent Mark Rossini. “No one uttered it. We just knew, we just knew. It was just frantic. Then we were just trying to find information—trying to find everything we could that’s on cable traffic, what’s being written. In some respects, we had no idea what was going on—we couldn’t really do anything. Everybody immediately suspected it was bin Laden.” 

Shortly after nine, Theodore Olson, the Bush administration’s solicitor general, heard about the hijackings and quickly turned on his office television. His wife, Barbara Olson, forty-five, a talk-show regular, was flying to Los Angeles that morning, and he was worried that she might have been on one of the planes that crashed into the World Trade Center. A fixture on cable networks for her strident advocacy of conservative and far-right issues, Olson was on Flight 77 in seat 3E, a few seats behind and across from Hanjour. 

After a brief mental calculation, Ted Olson figured his wife’s plane could not have gotten to New York that quickly. Suddenly, a secretary rushed in. “Barbara is on the phone,” she said. Olson jumped for the receiver. “Our plane has been hijacked!” she said quickly, but after a few seconds the phone went dead. Olson immediately called the command center at Justice and alerted them to the fact that there was yet another hijacked plane—and that his wife was on it. He also said she was able to communicate, though her first call had been cut off. 

Minutes later, Barbara called back. Speaking very quietly, she said the hijackers did not know she was making this call. All the passengers, she said, had been herded to the back by men who had used knives and box cutters to hijack the plane. The pilot, she said, had announced that the plane had been hijacked shortly after takeoff. Ted Olson then told her about the two other planes that had been hijacked that morning and flown into the World Trade Center. “I think she must have been partially in shock from the fact that she was on a hijacked plane,” Olson recalled. “She absorbed the information.” 

“What shall I tell the pilot? What can I tell the pilot to do?” Barbara said, trying to remain calm. Ted asked if she could tell where the plane was at that moment. She said she could see houses and, after asking someone, said she thought the plane was heading northeast. Then they reassured each other that the plane was still up in the air, still flying, and that it would come out all right. “It’s going to come out okay,” Olson told his wife, who agreed. 

But Ted Olson knew the situation was anything but all right. “I was pretty sure everything was not going to be okay,” he recalled. “I, by this time, had made the calculation that these were suicide persons, bent on destroying as much of America as they could.” “I love you,” she said as they exchanged feelings for each other. Then the phone suddenly went dead again. While waiting for another call, Olson remained glued to the television. It was now about 9:30.[personally I do not think any of these calls took place DC] 

At 9:24, the FAA had alerted officials at N.O.R.A.D about the missing plane. Officials there immediately sent out a scramble order to their Air National Guard unit at Langley Air Force Base in Hampton, Virginia. At 129 miles away, it was the closest alert base to Washington. As Langley’s scramble horn blared and the battle stations light turned yellow, Major Dean Eckmann, a Northwest Airlines pilot serving his regular National Guard rotation, ran for his fighter. Joining him were Major Brad Derrig and Captain Craig Borgstrom. Six minutes later, N.O.R.A.D’s three F-16's, each loaded with six missiles, were wheels up. The mission for Eckmann and his two fellow pilots was to somehow find Flight 77 before it found its target, and possibly shoot it down. But that would require the authorization of the president, then in an elementary school in Sarasota, Florida. “I don’t think any fighter pilot in the United States would have ever thought they would be flying combat air patrols over American cities,” Eckmann said. “That was huge, huge culture shock.” 

At 9:29, with the plane thirty-eight miles west of the Pentagon and flying at seven thousand feet, Hanjour turned off the autopilot and took control of the stick. At that same moment, Dulles tower air traffic control operator Danielle O’Brien spotted an unidentified blip on her radar screen. Although she didn’t know it at the time, it was the missing Flight 77. 

The alarmed controllers quickly called to warn their colleagues at Reagan National Airport, which was located close to downtown Washington. “Fast-moving primary target,” they said, indicating that a plane without a transponder was heading their way. Tom Howell, the controller next to O’Brien, glanced over at her screen and his eyes grew wide. “Oh my God!” he yelled. “It looks like he’s headed to the White House! We’ve got a target headed right for the White House!” At full throttle, American Flight 77 was traveling at about five hundred miles per hour directly toward P-56, the prohibited airspace surrounding the White House and the Capitol. Because of its speed and the way it maneuvered and turned, everyone in the radar room of Dulles Airport’s tower assumed it was a military jet. 

At the N.S.A, the one group Hayden could not move to Ops 1 was the counter terrorism unit, eight floors up on the top of Ops 2B. He visited the unit and described the employees working there as “emotionally shattered.” “One of the more emotional parts of the day, for me,” said Hayden. “I went into our C.T [counter terrorism] shop and our logistics folks were tacking up blackout curtains because we can’t move the C.T shop in the midst of this.” Hayden called his wife, Jeanine, at their home a few miles away and asked her to locate their children. 

Hayden then ordered the counter terrorism unit to focus their attention on Middle Eastern intercepts and to translate and analyze them immediately as they were received, rather than starting with the oldest in the stack first, as was normally the case. It was then that analysts finally translated the two messages sent the day before, between pay phones in a highly dangerous area of Afghanistan and people in Saudi Arabia. To their shock, one said, “Tomorrow is zero hour,” and the other said, “The match begins tomorrow.” Whether they were referring to the attack or to something else, such as the assassination of Massoud, was unknown; the messages were too brief and vague. Still, the N.S.A would wait until the next day, September 12, before distributing the information to anyone else in Washington. 

Within the tower at Dulles Airport, the tension rippling through the air was almost visible. The supervisor in the radar room began a countdown as the unknown plane got closer and closer to the White House. “He’s twelve miles west,” he said. “He’s moving very fast eastbound—okay, guys, where is he now? . . . Eleven miles west, ten miles west, nine miles west.” About that point, he picked up the phone to the Secret Service office at the White House. “We have an unidentified, very fast-moving aircraft inbound toward your vicinity,” he said, counting down the miles. “Eight miles west. Seven miles west.” 

Many within Alec Station believed the C.I.A might be the target of Flight 77—a similar scenario had once been planned by Ramzi Yousef, the man who bombed the World Trade Center in 1993. “We thought it was coming for the CIA,” said FBI agent Mark Rossini. “So they evacuated the building, but we stayed. We were in the basement; I thought we’d be okay. We were in N.H.B [New Headquarters Building]. It was all underground up to the fourth floor, so I thought if the plane comes in it’s not really going to hit us, it’s going to hit the ground. Or it’s going to hit O.H.B [Old Headquarters Building]; it’s not really going to hit us. So we all stayed.” 

At the White House the warning came into the tightly packed Situation Room, down a flight of stairs from the Oval Office, where three watch officers continuously monitor computers carrying reports from the various intelligence agencies. A rush of fear suddenly washed over Franklin C. Miller, the director for defense policy. The White House could be going down, he thought. Then he had an aide send out an e-mail with the names of those present “so that when and if we died, someone would know who was in there,” he said. 

Secret Service officers quickly rushed into Vice President Dick Cheney’s office. “We have to move,” said one agent. “We’re moving now, sir; we’re moving.” Once out, they hustled him down to the Presidential Emergency Operations Center, a special tube like bunker under the East Wing of the building. The rest of the White House staff were told to get out and away from the building as quickly as possible. “Get out, get out, this is real,” shouted members of the bomb squad running through the building. “All the way to H Street, please,” one uniformed Secret Service officer yelled. “Women, drop your heels and run, drop your heels and run,” yelled one Secret Service agent. “Suddenly, the gates that never open except for authorized vehicles just opened and the whole White House just flooded out,” recalled Press Secretary Jennifer Millerwise. 

At 9:34, with the plane five miles west-southwest of the Pentagon, Hanjour began a complex, 330-degree right turn. 

“Six miles,” said the supervisor. “Five miles, four miles.” He was just about to say three miles when the plane suddenly turned away. “In the room, it was almost a sense of relief,” recalled air traffic controller Danielle O’Brien. “This must be a fighter. This must be one of our guys sent in, scrambled to patrol our capital and to protect our president, and we sat back in our chairs and breathed for just a second. In the meantime, all the rest of the planes are still flying and we’re taking care of everything else.” 

Then at about two thousand feet and four miles southwest of the building, Hanjour pointed the nose down and increased to near maximum speed. “He’s turning back in!” O’Brien yelled. “He’s turning back eastbound!” O’Brien’s fellow traffic controller Tom Howell also saw the turn and began to yell to the supervisor. “Oh my God, John, he’s coming back!” Arlington, Virginia, police officer Richard Cox could hardly believe his eyes. He grabbed for his microphone and called dispatch. “It’s an American Airlines plane, headed east down over the pike, possibly toward the Pentagon,” he said excitedly. 

Traveling at 530 miles per hour and with 36,200 pounds of jet fuel aboard, Flight 77 smashed into the gray concrete wall of the Pentagon. The jet hit with such force that it penetrated four of the five concentric rings of corridors and offices surrounding a gazebo in the center court, long nicknamed Ground Zero.[Bullshit, NO PLANE,hit the Pentagon DC] 

“We lost radar contact with that aircraft,” recalled O’Brien. “And we waited. And we waited. And your heart is just beating out of your chest waiting to hear what’s happened.” 

“Dulles, hold all of our inbound traffic,” said a voice. “The Pentagon’s been hit.” “I remember some folks gasping,” recalled O’Brien. “I think I remember a couple of expletives.” “It’s just like a big pit in your stomach because you weren’t able to do anything about it to stop it,” said Tom Howell. “That’s what I think hurt the most.”

At the Justice Department, Ted Olson heard on the television that an explosion had taken place at the Pentagon. Although no one identified the aircraft involved, he knew it was Flight 77, carrying his wife. “I did and I didn’t want to,” he recalled. “But I knew.” 

The N.S.A, made up of more than fifty buildings containing more than seven million square feet of space, was an easy place to hit. Following definite word that the Pentagon had been struck and that there were still one or more hijacked aircraft headed toward Washington, Hayden ordered the three to four thousand remaining essential personnel to immediately leave the agency’s three tall towers. They were to relocate to the three-story Ops 1 building, the old low-rise A-shaped structure that was the agency’s first home in Fort Meade. All four buildings were interconnected, so employees never had to go outside. 

In Ops 1, Hayden and his top staff marched through the automatic glass doors of the third-floor National Security Operations Center, the agency’s “war room.” Normally quiet and sedate, the N.S.O.C suddenly became a beehive of activity, with watch officers and signals intelligence officials fielding messages to and from the worldwide listening posts searching for answers in the dim light. All were watching for a CRITIC (Critical Intelligence) message—which took highest precedence—warning of where the next attack might come. 

At 9:53 a.m., less than fifteen minutes after Flight 77 hit the Pentagon, analysts picked up a phone call from a bin Laden operative in Afghanistan to a phone number in the former Soviet republic of Georgia. The person in Afghanistan said that he had “heard good news,” and indicated that a fourth target was yet to be hit—a possible reference to United Flight 93 that would crash in Pennsylvania before reaching its intended target in Washington. 

“I got in touch with George Tenet,” said Hayden. “He said, ‘What do you have?’ and I passed on whatever information we had.” Hayden then called his wife back, said he was okay, and found out that his children had been located and were safe. 

Over the next hours and days, it would become clear to Hayden that the men who attacked America lived, planned, and communicated not only within the country but even within the N.S.A’s own community. It would also become clear to him that the pressures would be enormous to begin turning the N.S.A’s massive ears inward, and to start filling its near bottomless data storage capacity with the words and voices of millions of Americans. For years, under his leadership, the agency had deliberately taken an overly cautious approach to eavesdropping and, possibly as a result, contributed to the intelligence failures that led to the attacks. Now he had a different priority. “Number one, security,” he said. “We’ve got to defend ourselves.”

BOOK TWO 

TARGETS

Opportunity 

Five miles north of the Pentagon, on a bridge crossing the Potomac from Maryland into Virginia, John Poindexter was on his way to work in Arlington at the moment Hani Hanjour drove Flight 77 into the building. On his finger was a large ring from the Naval Academy, where he graduated at the top of his class in 1958, and on his sleeves were cuff links with the White House seal. A retired rear admiral and former Reagan national security adviser, he had become deeply involved in the arms for-hostages scandal, where money from covert arms sales to Iran was siphoned off to illegally support counter insurgents in Nicaragua. After disappearing from public life, he began turning his attention away from waging wars with guns and guerrillas and toward a new form of warfare, one that would instead use complex mathematical algorithms and computer-based pattern recognition techniques to defeat an enemy, focusing on the new emerging threat of terrorism. The idea was to find the enemy before he could find us. 

Moments after the plane hit the Pentagon, Poindexter received an urgent call on his cell phone from his wife, Linda, who told him about the attack. “Mark is okay,” she said, referring to their son, who was a commander on the staff of the navy’s chief of naval operations. “He wasn’t in the building.” Poindexter’s first thought was relief. Then he began seeing connections to the type of work he had been doing. “I realized this was a well-coordinated attack of the type that we had been working to prevent,” he said. 

The more he heard on the radio, about terrorists seizing aircraft and using them as weapons of mass destruction, the more he became convinced that his work was the answer to similar attacks in the future. In the Cold War, indications of pending attacks came via advanced radar systems— on land, on sea, and in the air—designed to detect incoming aircraft and missiles, or satellites that could discover their imminent launch. But the new terrorists turn everyday items into weapons, from cars and trucks to dinghies and jumbo jets. By the time they have struck, it is too late to detect them. What was needed was a way to find them at the earliest possible moment; what was needed were the ideas and techniques he and his colleagues at Syntek Technologies had been working on for years. 

Arriving at work in time to witness the South Tower collapse on television, Poindexter became frustrated and discouraged. Despite six years of hard effort, they had not been able to convince the intelligence community of the need to adopt their ideas and concepts. As most of the staff departed early for home, Poindexter, the company’s senior vice president, remained behind, thinking of how in a matter of hours the world had suddenly changed. “I stayed most of the day,” he said, “thinking about what needed to be done.” 

Schooled at Annapolis and trained as a scientist, sixty-five-year-old John Poindexter was a man with a great understanding of schematic diagrams, wiring charts, and military order. Tall and bulky with a hairless scalp, a bushy white mustache, and a fondness for pipes, starched white shirts, and dull gray suits, he was the technocrat’s technocrat. The answer to all things could be found in a test tube, a circuit board, or a mainframe. Thus Poindexter was convinced the answer to the complex problem of Middle Eastern terrorism was simply to place the everyday actions, public and private, of all Americans under a massive government magnifying glass. 

Early on September 12 he contacted J. Brian Sharkey, an old friend who had previously worked for the Pentagon’s cutting-edge laboratory, the Defense Advanced Research Projects Agency (D.A.R.P.A). In 1999, as the deputy director of D.A.R.P.A’s Information Systems Office, Sharkey had introduced a program dubbed Total Information Awareness (T.I.A), a name George Orwell would have liked. Eventually T.I.A died on the vine and Sharkey left D.A.R.P.A to become a vice president at S.A.I.C, the giant defense contracting firm. But now, with America in the grip of fear, T.I.A’s time had finally come. 

Poindexter and Sharkey held a meeting in a parked car off a Maryland highway. Both were energized by the idea of turning information into a weapon, of vacuuming up everyone’s digital trail, their parking receipts and Web searches, their bookstore visits and their gas station fill-ups, and then using supercomputers and complex algorithms to discover who among us is a terrorist. The data collected would be from public, private, and government databases, from Web browsers such as Google, from credit agencies and credit card companies, and from the Social Security Administration. Every bit had a history and every keystroke told a story. Known as data mining, it was automated surveillance on steroids. 

On October 15, at a local Arlington fish restaurant—Gaffney’s Restaurant, Oyster & Ale House—Sharkey outlined T.I.A to D.A.R.P.A’s new director, Dr. Anthony Tether. By the time the oyster shells were empty, Tether wholeheartedly endorsed the idea and then suggested that Sharkey run the operation. Unwilling to give up his very lucrative defense contracting salary at S.A.I.C, Sharkey instead thought of Poindexter. A few days later, while the two were sailing on the Chesapeake aboard Poindexter’s forty two-foot sloop Bluebird, Sharkey suggested to his friend that he talk with Tether about taking the job. Poindexter liked the idea and a meeting with Tether was set up. For the admiral, it would be a second chance to save the world—again in his own secret way. This time, instead of a covert arms-for-hostages deal he would build the information equivalent of an atomic bomb. 

Not a man of small ideas, Poindexter arrived at the meeting with Tether prepared with a presentation titled “A Manhattan Project for Counter Terrorism.” He would become the Edward Teller of the information age. Like the old atomic-bomb development facility at Oak Ridge, Tennessee, the facility that Poindexter envisioned would employ the best and the brightest minds in computer science, physics, and information technology. But instead of intending to explode trillions of electrons and protons in a million different directions, Poindexter wanted to do the opposite. He wanted to collect into one “ultra-large” data warehouse billions of seemingly inconsequential bits of data and from that establish who might hijack the next plane or blow up the next building or take down the next bridge. He believed that with the right combination of hardware, software, and brainpower, he would be able to tie the purchase of a Leatherman knife at Target with a Web search on American Airlines and a speeding ticket in  Oklahoma and discover Nawaf al-Hazmi before he had a chance to board Flight 77. “How are we going to find terrorists and preempt them, except by following their trail?” asked Poindexter. 

In an atmosphere of hysteria, and with an administration unable to shovel dollars into counter terrorism projects fast enough, it was an easy sell. Tether said he would fund the project if Poindexter would run it. Poindexter readily agreed, and by January 2002, what would possibly become the largest data-surveillance system ever built was placed into the hands of a man once convicted of five felony counts of lying to Congress, destroying official documents, and obstructing congressional investigations. If Poindexter was a man of big ideas, he was also a man of big scandals, a factor that didn’t seem to bother Tether. 

During the Reagan administration, Poindexter was the highest-ranking official to be found guilty during the Iran-Contra affair. He was sentenced to prison by a federal judge who called him “the decision-making head” of a plot to deceive Congress. Later, an appeals court overturned the conviction on a technicality, holding that the testimony Poindexter gave to Congress about Iran-Contra was immunized, and therefore couldn’t be used against him at his trial. 

Dubbed the Information Awareness Office, Poindexter’s organization grew rapidly. With about $200 million in funding, Poindexter farmed out much of the research into how to build such a system to a wide range of corporations and universities that would do the heavy lifting. The companies were mostly large defense contractors such as Booz Allen Hamilton and Raytheon, and small boutique intelligence consultancies like Hicks & Associates. The universities ranged from Cornell and Columbia in the east to the University of California at Berkeley in the west. 

Ted Senator, one of Poindexter’s colleagues, used a metaphor to describe the difficult task ahead in creating T.I.A. “Our task is akin to finding dangerous groups of needles hidden in stacks of needle pieces,” he said. “This is much harder than simply finding needles in a haystack: we have to search through many stacks, not just one; we do not have a contrast between shiny, hard needles and dull, fragile hay; we have many ways of putting the pieces together into individual needles and the needles into groups of needles; and we cannot tell if a needle or group is dangerous until it is at least partially assembled. So, in principle at least, we must track all the needle pieces all of the time and consider all possible combinations.” 

As with a prefabricated mansion, each contractor worked on a separate section of T.I.A. Among them was the Evidence Extraction and Link Discovery program, which Ted Senator described to a group of technologists in 2002: 

We’ve all seen what’s meant by links and relationships in the past year. Many newspaper articles have appeared about the events of September 11, typically accompanied by very nice graphics that show the relationships between the hijackers—some roomed together in Hamburg, some had airline tickets purchased on the same credit card at the same time, some traveled to Las Vegas at the same time, and the pilots trained together and, most important to our ability to have detected the plot in advance, engaged in suspicious and inexpiable behavior that was reported during this training. These articles had as their theme: “we had the information but didn’t put it together.” 

And that is what E.E.L.D is all about: developing techniques that allow us to find relevant information about links between people, organizations, places, and things—from the masses of available data, putting it together by connecting these bits of information into patterns that can be evaluated and analyzed, and learning what patterns discriminate between legitimate and suspicious behavior. 

T.I.A also included Scalable Social Network Analysis (S.S.N.A), which was projected to distinguish potential terrorist cells from ordinary groups of people through an analysis of various everyday activities, such as telephone calls, A.T.M withdrawals, and meetings; and Activity, Recognition, and Monitoring (A.R.M), which sought to develop computerized cameras capable of watching, recording, and learning how people act and behave—to “capture human activities in surveillance environments.” In other words, the object was to develop hidden cameras to determine whether someone was acting out of the ordinary. Finally, oblivious to calling attention to the Orwellian nature of his new organization, Poindexter personally designed an official seal for the Information Awareness Office with a pyramid topped by a piercing, disembodied, all-seeing eye. Within a month of opening for business, Poindexter began reaching out to the intelligence community—his future customers—and offering them a portal to his operation. This was a highly secret computer network through which the various agencies could interact with T.I.A’s sophisticated systems. Agencies would access the network through a “node,” a dedicated desktop computer located within each agency. Among the agencies interested was the N.S.A, which could never have enough computer help to sift through and analyze its ocean of intercepts. By tying into the T.I.A network, the agency would be able to experiment with new analytical software developed by Poindexter’s group. To work out the arrangement, Poindexter met with Hayden and the agency began installing the T.I.A nodes. Once they were installed, the agency started running stacks of intercepted e-mail and other communications through the system, testing various programs and exchanging data with other intelligence community users. 

In the fall of 2002, Poindexter’s luck ran out when conservative New York Times columnist William Safire, a staunch and longtime privacy advocate, caught wind of both T.I.A and Poindexter. His resulting November 14 column, entitled “You Are Suspect,” was merciless. Calling TIA “the super snoop’s dream,” he went on to say, “Here is what will happen to you”: 

Every purchase you make with a credit card, every magazine subscription you buy and medical prescription you fill, every Web site you visit and e-mail you send or receive, every academic grade you receive, every bank deposit you make, every trip you book and every event you attend—all these transactions and communications will go into what the Defense Department describes as “a virtual, centralized grand database.” 

Safire was no less severe on Poindexter himself, calling him “the disgraced admiral.” Others, including members of Congress, quickly jumped on the bandwagon and T.I.A went on life support. The end for Poindexter finally came when it was discovered that one of his programs involved a bizarre use of stock-market techniques to predict potential terrorist attacks. He resigned on August 29 and a month later House and Senate leaders came to agreement on scrapping the funding for T.I.A. 

Rather than truly dying, however, the controversial domestic data mining operation simply slipped deeper into the shadows—and ended up at the N.S.A. 

Hunters 

In the days immediately following the attacks, General Hayden had a major decision to make. He had to decide whether to continue to go forward with his massive, long-term reorganization plan, designed to revitalize the N.S.A’s workforce and modernize its worldwide eavesdropping network, or quickly change gears to focus on the immediate terrorist threat. On September 13, he called a meeting in his office. 

“We had all the senior leadership of the agency in this room,” said Hayden. “About thirty-five people . . . all the key leaders. We had them all in the room. I said, ‘Okay, we had a plan and we had a transformational road map and we made some decisions, now this [9/11] has happened. Do we need to revisit any of the trajectories that we put the agency on?’ And this was one of those frank and wide-ranging discussions. Every man and woman in the room said, ‘Go faster. No change in direction. If anything, accelerate all the changes under way.’ ” 

Ironically, at a time when most of the intelligence agencies were recalling previously retired workers, the NSA went ahead with their plan to offer incentives for employees to take early outs. “This was within thirty days of the attack,” said Hayden, “with the whole system stretched by the challenges of the new war. We had a lot of people leave and actually paid some people to leave.” 

The problem was that many of the people at the NSA had the right skills for the wrong targets. The agency had to move out many of the longtime Soviet linguists and high-frequency specialists to make room for Urdu and Dari speakers, and experts at dissecting and reverse-engineering the Internet. “We could not squeeze any more juice out of retraining,” said Hayden. “We had spent a decade trying to retrain people for the new kinds of missions, and now it was time to get new people in here. And the only way you can get new people in here is to let other people go. And we were criticized for that. Someone who’s as good at her job as [Congresswoman] Jane Harmon, the senior member on the [House Intelligence Committee, who] pays a lot of attention to us and is very conscientious and comes out to visit us and is very supportive, even she kind of said, ‘What is this all about?’ and said so in a public way. And I quietly pointed out to her, ‘It was a tough decision, but it was a right decision.’ ” 

The N.S.A’s personnel problems began in the early 1990's with the end of the Cold War. “We were a third smaller at the end of the 1990's than we were at the beginning,” said Hayden. “We downsized in the worst possible way—we shut the front door. For most of the decade of the 1990's, we hired fewer than two hundred people a year—civilians—in an agency that had over twenty thousand civilians in 1990; [we had] fifteen thousand by 2000.” By 2004, according to Hayden, the new recruits had jumped to 1,500 a year. 

But of those numbers, the largest group hired were not code breakers but security guards. “Garrison no longer equates to sanctuary,” said Hayden. “So we’re hiring guards. We’re renting some, too. Number two, we’ve increased our polygraphers. Number three, linguists. Number four, analysts. And there almost ain’t a number five . . . We focused on what I call wartime languages—Arabic, all the languages of Afghanistan, and then selected languages in other parts of the world, [like the] Horn of Africa.” The man in charge of hiring and recruiting was Harvey Davis. “We let the hiring program atrophy,” he said, referring to the 1990's. “But now there is a transformation under way, and we are recruiting and hiring at a feverish pace.” 

At the same time, entire departments quickly packed up and shipped out to the Middle East. Many took with them small, transportable “suitcase kits,” packed with eavesdropping equipment for targeting suspected terrorists. Made by S.W.S Securities, a small NSA contractor, they could handle rugged terrain and track low-powered radio transmissions, the kind produced by people in hiding and using shortwave radios and generators. They were also capable of detecting smaller signals obscured by large transmitters. Designed only for short-term use before disposal, they lasted about six weeks.

But according to Steve Uhrig, the president of S.W.S, bin Laden and his men had the advantage. “Anyone with a little computer understanding could get something up and running for him,” he said. “If he kept his transmissions short, moved frequently, he could even put the transmitter ten miles away from where he is, run a ground microwave relay to a hilltop, and bounce it off a satellite; put it under an oil company’s name . . . It could provide the perfect cover.” For security, employees and their kits were picked up at local parking lots, rather than at their homes or at the agency, and driven to Baltimore-Washington International Airport. Back at headquarters, many employees worked round the clock. “When people say they are going to meet at eight,” said one, “you have to ask if they mean eight in the morning or eight at night.” 

On the eighth floor of Ops 2B, Michael Hayden sought to restore a feeling of normalcy and confidence at the N.S.A. He also knew that there would be an immediate effort to push the NSA to the brink of the abyss. “On the thirteenth of September,” said Hayden, “I gave an address to an empty room, but we beamed it throughout our entire enterprise, about free peoples always having to decide the balance of security and their liberties, and that we through our tradition have always planted our banner way down here on the end of the spectrum toward security [possibly meant liberty]. And then I told the workforce . . . there are going to be a lot of pressures to push that banner down toward security, and our job at N.S.A was to keep America free by making Americans feel safe again. So this balance between security and liberty was foremost in our mind.” 

But it was Hayden himself who would grab the banner and lead the charge away from liberty and toward a security state. As the smoke cleared, and the details about Mihdhar and Hazmi and the Yemen ops center began to emerge, he knew exactly what had happened. Worried about congressional concerns over privacy, unhappy about the public’s image of the N.S.A as an evil eavesdropper, and hoping to avoid the slippery slope that led to the Church and Pike Committee investigations of the 1970's, he had turned a deaf ear to signals heading into the U.S. from suspected terrorist locations overseas. This despite the fact that closely monitoring these communications was part of his responsibility—provided certain F.I.S.A court rules were followed. 

Hayden had preferred instead to play it safe and leave those communications to the F.B.I., which had neither the technology nor the capability to do that type of collection. “I had an agency,” said Hayden, “that, you know, for decades—well, since the mid-1970's—had, frankly, played a bit back from the line so as not to get close to anything that got the agency’s fingers burned in the Church-Pike era.” As a result, the agency limited the monitoring of international communications to foreign diplomatic establishments in Washington and New York and a half dozen other F.I.S.A targets. Mihdhar and Hazmi were not among them. 

But the times had now changed, and Hayden changed with them. Civil liberties were out, Fortress America was in. Even Hayden’s ever-present football metaphors became more aggressive. “We’re going to live on the edge,” he would say. “My spikes will have chalk on them.” In Haydenese, launching war against al-Qaeda became “playing a little offense rather than having a perpetual first down and goal on the three-yard line in the homeland.” He would often say that the N.S.A had long been “gatherers”— passively picking information from the airwaves as it passed by. Now they would become “hunters,” actively going after that information wherever it was. 

Almost immediately after the attacks, Hayden beefed up the coverage of communications between Afghanistan and the U.S. Then, on his own initiative and without White House approval, he dropped the F.I.S.A mandated rule of minimization on those communications, leaving in the names and other details of American citizens without court approval. 

Soon thereafter, Vice President Dick Cheney called George Tenet and asked him if the N.S.A could do more. “I called Mike to relay the vice president’s inquiry,” said Tenet. “Mike made it clear that he could do no more within the existing authorities.” Nine months earlier, soon after Bush and Cheney were elected, Hayden had presented them with a top secret transition book outlining the challenges and limitations his agency was facing, noting both the fiber-optic revolution and F.I.S.A’s limitations. 

“The volumes and routing of data make finding and processing nuggets of intelligence information more difficult,” it said. The best way to find those nuggets, Hayden suggested in the report, was to tap into the worldwide telecommunications web—voice as well as data—to “live on the network,” even though that meant picking up many American communications. Hayden’s recommendation was to make the NSA “a powerful, permanent presence on a global telecommunications network that will host the ‘protected’ communications of Americans as well as the targeted communications of adversaries.” In other words, tap into the international communications flowing into and out of the U.S., something he had been reluctant to aggressively pursue prior to the attacks on 9/11 due to concern over F.I.S.A. 

“We went to see the vice president together,” Tenet said. “Mike laid out what could be done . . . We began to concentrate on the possible connections between the domestic front and the data we were collecting overseas. We would identify al-Qaeda members and other terrorists overseas and often discover that they had relatives, acquaintances, or business ties in the United States. Each rock overturned abroad led to ants scurrying every which way, including many toward the United States.” 

The next meeting was in the White House with the president. Seated around the long conference table in the Situation Room with Bush, Cheney, and Condoleezza Rice were the key intelligence chiefs. Hayden, the kid from “the Ward,” Pittsburgh’s tough North Side, was a man impressed with power. He once beamed as he boasted of going to a baseball game with Rice. Now the president of the United States was putting his arm around him and calling him “Mikey,” his childhood nickname. “Is there anything more we could be doing, given the current laws?” Bush asked the gathering. “There is,” said Hayden. He then gave the president a brief summary of the NSA’s signals intelligence operations against al-Qaeda. 

“He showed me the plans for this country to pick up a conversation,” said Bush, “listen to conversations from people outside the country, inside the country, who had an affiliation with al-Qaeda, or were al-Qaeda. He said, ‘I think we can design a program, Mr. President, that will enable us to have a quick response to be able to detect and deter a potential attack.’ I said, ‘That’s interesting, General.’ I said, ‘That makes a lot of sense to me.’ I said, ‘You’re not going to listen inside the country.’ [He said,] ‘No, this is calls from outside the country in, or inside out, to people who we know or suspect are affiliated with al-Qaeda.’ And I remember some of those phone calls coming out of California prior to September the 11th attacks by the killers—just thinking maybe if we’d have listened to those on a quick response basis, you know, it might have helped prevent the attacks. My second question was, is it legal?” 

Hayden then brought up F.I.S.A and complained that it was designed for an earlier period of time. It was designed for the 1970's, he said, when international communications signals, its principal focus, traveled through the air and domestic calls, which they were prohibited from monitoring,were transmitted over wires. Thus the law placed most restriction on the wired communications. “When the law was passed,” he said, “almost all local calls were on a wire and almost all long-haul communications were in the air. In an age of cell phones and fiber optic cables, that has been reversed . . . with powerful and unintended consequences for how NSA can lawfully acquire a signal.” To correct the problem, Hayden proposed a new concept: “hot pursuit.” 

Under F.I.S.A, if the N.S.A was eavesdropping on the Yemen ops center and a call was made to the U.S., the intercept operator could legally listen in as long as the target was in Yemen. But as soon as the two parties hung up, the N.S.A intercept operator might want to begin targeting the American number immediately. “From that decision to coverage is measured in minutes,” Hayden said. Because the person is in the U.S., however, the N.S.A would now have to get a F.I.S.A warrant to begin targeting that number, a process Hayden claimed was “slow and cumbersome.” Instead he told the president he wanted authority to secretly bypass the court and begin monitoring all of the target’s international communications immediately—in other words, “in hot pursuit.” The standards for what represented a “reasonable” intrusion into Americans’ privacy had changed, Hayden said, “as smoke billowed from two American cities and a Pennsylvania farm field.” 

F.I.S.A, however, already provided for “hot pursuit”—it allowed intercept operators to begin listening immediately, as long as they would apply for the warrant within three days. Yet even that was too cumbersome and time-consuming for Hayden and Bob Deitz, Hayden’s top lawyer at the N.S.A, who argued that the whole exercise was a waste of both time and paper—a total bother. “The problem with the seventy-two-hour rule,” he said, is that “it is not a freebie. It is not you get to do whatever you want for seventy-two hours . . . My concern is not lawyer time, although that is precious enough. My concern is analyst time, and the issue that most concerns us is your counter terrorism experts and analysts do not grow on trees . . . Analysts talk to each other. They do memorandum. They pass the memorandum on to shift supervisors . . . Then it has to go to our lawyers. Then it has to go to a group of lawyers at the Department of Justice; and then, ultimately, it has to go to the attorney general.” And then there was all that paper. “F.I.S.A applications,” he said, “now are approximately three-fourths of an inch thick. That is paper producing . . . I suggest that that is simply a waste of that paper and effort and analysts’ time.”

But in a democracy, eavesdropping on citizens, the most intrusive act a government can perform, has traditionally been done with care and deliberation, checks and balances, lest the government itself become the enemy. Eavesdropping in East Germany during the Cold War was very quick and efficient—and therefore pervasive. And during that same period, eavesdropping by the N.S.A rapidly accelerated due to limited outside oversight. Hayden’s real problem today was not so much velocity—speed—as it was volume; he wanted to be able to target thousands of people simultaneously, some briefly and some long term, without the hassle of justifying them to anyone higher than an anonymous shift supervisor. 

In fact, according to James Baker, the Justice Department official most familiar with the F.I.S.A court as the head of the Office of Intelligence Policy and Review since 2002, the warrants can be handled as quickly as in a matter of minutes. “We’ve done it in a matter of a day; we’ve done it in a matter of hours; we’ve done it in a matter of minutes,” he said in 2007. “Very rapidly. Extremely rapidly . . . The point is, there’s been no loss of foreign intelligence information. That’s the key thing . . . The American people have not been put at any risk because of this process going on.” 

Nor, he said, were there any technical advances that prevented the court from doing its job. “The Congress in 1978,” he said, “wanted to enable the government to collect all that information . . . I just want the American people to be reassured that there’s not some pot of electrons out there floating around that we can’t somehow get at technically because of the regime that F.I.S.A sets up . . . I submit that F.I.S.A works today. I believe that it’s been effective in protecting the American people from threats from foreign powers, from hostile terrorist groups, from hostile foreign governments, and at the same time it’s been effective in protecting the American people’s privacy.” 

For years Hayden had avoided targeting Americans as much as possible. One slip and it was headlines and congressional hearings. But Michael Hayden was a man who spent his life tacking whichever way the political winds happened to be blowing, and now he would simply tack again, this time far to starboard. His goal was always to stay afloat and make it to the next larger port. For Hayden, that now required jettisoning the F.I.S.A court and launching his own top-secret eavesdropping operation at home against American citizens. The N.S.A would now become an agency of hunters. 

FISA

As far as Michael Hayden was willing to go, Cheney wanted to go much further—to even allow the N.S.A to eavesdrop on purely domestic to domestic communications, phone calls as well as e-mail, without a warrant. If people within the U.S. with suspected links to al-Qaeda made calls, even to the house next door, Cheney believed the N.S.A should be tapping in, regardless of F.I.S.A. “Either we’re serious about fighting the war on terror or we’re not,” he said. “Either we believe that there are individuals out there doing everything they can to try to launch more attacks, to try to get ever deadlier weapons to use against us, or we don’t. The president and I believe very deeply that there’s a hell of a threat, that it’s there for anybody who wants to look at it. And that our obligation and responsibility given our job is to do everything in our power to defeat the terrorists. And that’s exactly what we’re doing.” 

Cheney’s position was shared by his longtime aide and top legal adviser, forty-four-year-old David S. Addington, who became the chief legal architect of the warrant less eavesdropping program. He once told a senior Justice Department lawyer, “We’re one bomb away from getting rid of that obnoxious [F.I.S.A] court.” “He and the vice president had abhorred FISA’s intrusion on presidential power ever since its enactment in 1978,” said Jack Goldsmith, who headed the Justice Department’s Office of Legal Counsel during the Bush administration—which he would later label “the terror presidency.” “After 9/11 they and other top officials in  the administration dealt with F.I.S.A the way they dealt with other laws they didn’t like: they blew through them in secret based on flimsy legal opinions they guarded closely so no one could question the legal basis for the operations.” 

One reason why Cheney and Addington hated the court was its tendency to resist attempts by the Bush administration to push beyond the legal boundaries, even before the attacks of 9/11. Judges on the court kicked back more wiretap requests from the Bush administration than from the four previous presidential administrations combined. In its first twenty-two years, the court modified only two F.I.S.A eavesdropping requests out of the 13,102 applications that were approved. And in twenty of the first twenty-one annual reports issued by the court, up until 1999, the Justice Department reported that no orders were modified or denied. But beginning with the arrival of George W. Bush in 2001, the judges modified 179 of the 5,645 requests for court-ordered surveillance and rejected or deferred at least six—the first outright rejections in the court’s history—between 2003 and 2004. 

Nevertheless, of all the courts in the history of the United States, it is likely none has ever been as accommodating to government lawyers. Such facts worry Jonathan Turley, a George Washington University law professor who worked for the N.S.A as an intern while in law school in the 1980's. The F.I.S.A “courtroom,” hidden away on the top floor of the Justice Department building (because even its location is supposed to be secret), is a heavily protected, windowless, bug-proof S.C.I.F. “When I first went into the F.I.S.A court as a lowly intern at the NSA, frankly, it started a lifetime of opposition for me to that court,” said Turley. “I was shocked with what I saw. I was convinced that the judge in that S.C.I.F would have signed anything that we put in front of him. And I wasn’t entirely sure that he had actually read what we put in front of him. But I remember going back to my supervisor at N.S.A and saying, ‘That place scares the daylights out of me.’ ” 

The F.I.S.A judges are also agreeable to calls twenty-four hours a day if the N.S.A or F.B.I. has an urgent warrant request. On one Saturday in April 2002, for example, four cars filled with F.B.I. agents suddenly pulled up to the front door of the home of Royce C. Lamberth. A bald and burly fifty nine-year-old Texan with a fondness for John Grisham novels, he was mowing his lawn at the time. But rather than arrest him, the agents were there to request an emergency court hearing to obtain seven top-secret warrants to eavesdrop on Americans. 

As the presiding justice of the FISA court, Lamberth had become accustomed to holding the secret hearings in his living room. “My wife, Janis . . . has to go upstairs because she doesn’t have a Top Secret clearance,” he said. “My beloved cocker spaniel, Taffy, however, remains at my side on the assumption that the surveillance targets cannot make her talk. The FBI knows Taffy well. They frequently play with her while I read some of those voluminous tomes at home.” FBI agents will even knock on the judge’s door in the middle of the night. “On the night of the bombings of the U.S. embassies in Africa, I started the first emergency hearings in my living room at 3:00 a.m.,” recalled Lamberth, who was first appointed to the court in 1995. “From the outset, the FBI suspected bin Laden, and the surveillance's I approved that night and in the ensuing days and weeks all ended up being critical evidence at the trial in New York.” 

Lamberth, who first decided to become a lawyer at age seven, became a thorn in the side of the Bush administration soon after the inauguration. “Those who know me know the chief justice did not put me on this court because I would be a rubber stamp for whatever the executive branch was wanting to do,” he said. “I ask questions.” In March, he sent a letter to Attorney General John Ashcroft raising questions about a F.I.S.A request to eavesdrop on a member of Hamas, the militant Palestinian group. The issue involved whether the F.B.I. was seeking authority to eavesdrop on targets without informing the court of pending criminal investigations involving the subject’s status. F.I.S.A judges were always concerned that investigators might use the court, with its lower probable cause standard, as a back door to obtain eavesdropping warrants in standard criminal cases—something that was forbidden. Given Lamberth’s conscientiousness and the fact that the court was rejecting an increasing number of F.I.S.A applications, Cheney and Addington began looking for a way to bypass the troublesome court altogether. 

Enacted by a bipartisan Congress in 1978, F.I.S.A was a response to revelations that the N.S.A had conducted warrant less eavesdropping on Americans. To deter future presidents and N.S.A directors from ever again bypassing the court and the warrant procedure, Congress put sharp teeth  in the statute, making violation a felony punishable by a $10,000 fine and five years in prison. Hard time. And each warrant less interception was a separate violation. 

Cheney was undeterred. The 9/11 attack occurred on his watch and he was determined not to let something like it happen again. He also had serious disagreements with even the existence of F.I.S.A, an impediment on presidential power that he believed “served to erode the authority I think the president needs to be effective, especially in a national security area.” He turned to Attorney General Ashcroft to find a way to get around it. Ashcroft, in turn, handed the assignment to John C. Yoo, an extremely aggressive, thirty-four-year-old Bush appointee who advocated for unprecedented presidential powers in times of war. He was also greatly impressed with the N.S.A. “Sigint [signals intelligence] is even more important in this war than in those of the last century,” he said. 

Yoo argued forcefully to Ashcroft and Cheney that both the agency’s weapons and the law were a product of the last century. “The government had to figure out how to tap into al-Qaeda’s communications networks,” he said. “We can’t say well, that line is the devoted line for Osama bin Laden to talk to his lieutenants. Or we know they use that frequency, because they use the Internet, and they use cell phones and telephone calls just like you and I do. No. This is a good example of where existing laws were not up to the job, because under existing laws like F.I.S.A, you have to have the name of somebody, have to already suspect that someone’s a terrorist before you can get a warrant. You have to have a name to put in the warrant to tap their phone calls, and so it doesn’t allow you as a government to use judgment based on probability, to say: ‘Well, 1 percent probability of the calls from or maybe 50 percent of the calls are coming out of this one city in Afghanistan, and there’s a high probability that some of those calls are terrorist communications. But we don’t know the names of the people making those calls.’ You want to get at those phone calls, those e-mails, but under FISA you can’t do that.” 

Ten days after the attacks, Yoo wrote an internal memorandum arguing that the NSA could use “electronic surveillance techniques and equipment that are more powerful and sophisticated than those available to law enforcement agencies in order to intercept telephonic communications and observe the movement of persons but without obtaining warrants for such uses.” He noted that while such unprecedented and intrusive actions might be rejected on constitutional grounds during normal times, they are now justified as a result of the 9/11 attacks. During such times, he said, “the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.” 

Yoo thought that constitutional guarantees instantly evaporate following a terrorist attack. “It appears clear that the Fourth Amendment’s warrant requirement does not apply to surveillance and searches undertaken to protect the national security from external threats,” he said. In another memo, this one to Alberto Gonzales, the White House counsel, he reiterated his view that the president’s powers trump the Constitution. “Our office recently concluded,” he wrote, “that the Fourth Amendment had no application to domestic military operations.” 

Hayden, not privy to the Justice Department’s legal opinions, said he relied on the legal advice of his general counsel, Robert L. Deitz, and his staff for his decision to go along with the warrant less surveillance program. “Three guys,” Hayden said, “whose judgment I trust; three guys who have advised me and who have told me not to do things in the past—and laid out the questions. And they came back with a real comfort level that this was within the president’s authority . . . It probably would have presented me with a—with a bit of a dilemma if the N.S.A lawyers had said, no, we don’t think so. But they didn’t.” 

Given that neither Deitz nor any other N.S.A lawyer was trusted by the White House with the legal rationale for what they were doing, how could his lawyers evaluate the decision? It rather calls their “comfort level” into question. “Before I arrived [in October 2003],” said Jack Goldsmith, “not even NSA lawyers were allowed to see the Justice Department’s legal analysis of what NSA was doing.” He added, “They did not want the legal analysis scrutinized by anyone, even inside the executive branch.” 

Except for the presiding judge, Royce Lamberth, the F.I.S.A court was also kept in the dark about the N.S.A’s warrant less program. But rather than being asked for his view on the legality of the operation, Lamberth, probably the most experienced person in the country on the topic, was simply told that this was a presidential decision, period. The meeting, with Hayden and Yoo, took place in the office of Attorney General John Ashcroft. During the meeting, which lasted nearly an hour, Lamberth said little and agreed to keep his fellow judges uninformed. “It was clear no one was asking him to approve it,” said one person at the meeting. 

“That was absolutely clear.” Years later Lamberth would harshly criticize the program. “We have to understand you can fight the war [on terrorism] and lose everything if you have no civil liberties left when you get through fighting the war.” 

While Lamberth believed he had no legal power to prevent the president’s actions—or even disclose them—he did make an attempt to keep any of the F.I.S.A cases that entered his court free of taint from the program. He did this by insisting that the Justice Department flag any F.I.S.A requests that were based, in any way, on the warrant less program. Lamberth had initially become alarmed when a number of requests crossing his desk failed to indicate the origin of the evidence of probable cause that was being presented—evidence, he believed, that originated from warrant less eavesdropping. By the time the N.S.A operation was up and running in the fall of 2001, between 10 and 20 percent of all the requests coming into the F.I.S.A court were tainted by what is known in the legal profession as “the fruit of the poisonous tree,” that is, the warrant less program. 

When Lamberth’s tour on the court ended in 2002, he was succeeded by Colleen Kollar-Kotelly, like Lamberth a district court judge in the District of Columbia. She was also briefed on the program and continued to maintain the “firewall” separating legal F.I.S.A requests from the warrant less program. But the spillage into her court from the program became so bad that Kollar-Kotelly decided she had to take action. She insisted that the legal requests be accompanied by sworn affidavits—subject to perjury charges—attesting that the applications contained no product from the warrantless operation. 

On October 1, Hayden gave a highly secret briefing to members of the House and Senate intelligence committees regarding his ad hoc decision to drop the minimization requirements on the intercepts between Afghanistan and the U.S. The fact that without even presidential approval the names of presumed-innocent Americans were now being sent to the FBI, CIA, and other agencies surprised and angered a number of those briefed, including Nancy Pelosi. A Democratic congresswoman from California and the House minority leader, she was also the ranking Democrat on the House Intelligence Committee. Hayden may also have touched obliquely on the warrant less eavesdropping, which at that time had not yet begun. 

A few days later Pelosi sent a classified letter to Hayden expressing her concerns about the agency’s legal authority to expand its domestic operations. In the briefing, she wrote, “you indicated that you had been operating since the Sept. 11 attacks with an expansive view of your authorities” with respect to electronic surveillance and intelligence-gathering operations. “I am concerned whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting.” In his response, Hayden acknowledged that he had not gotten White House approval. “In my briefing,” he wrote, “I was attempting to emphasize that I used my authorities to adjust NSA’s collection and reporting.” 

Just days after the briefing, on October 4, Hayden received authorization to bypass the Foreign Intelligence Surveillance Court and begin eavesdropping on international communications to and from Americans without a warrant. Loaded with new money, freed of the F.I.S.A court, he now turned his attention to building his new worldwide surveillance empire.

Mission

In early October, Mike Hayden met a group of employees in a large windowless conference room just down the hall from his office. Sitting and standing around a giant doughnut-shaped table, they were the charter members of the most secret operation in the nation’s most secret agency. They were also the first NSA employees since the mid-1970's to eavesdrop on the phone calls and messages of American citizens without a judicial warrant and in contravention to existing laws. In a very unusual move reflecting the questionable nature of the program, Hayden made participation in it voluntary. Each person also had to sign a special document acknowledging they had been briefed on the “special collection program” and agreeing under penalty of prison never to reveal any details of it to anyone not specifically cleared for the mission. And like its predecessors, Operations Shamrock and Minaret, it was also given a code word, which itself was secret. 

“Let me tell you what I told them when we launched the program,” said Hayden. “This is the morning of 6 October in our big conference room—about eighty, ninety folks in there—and I was explaining what the president had authorized, and I ended up by saying, ‘And we’re going to do exactly what he said, and not one photon or one electron more’ . . . It was very closely held. We had to read people into the program specifically . . . This was walled off inside NSA; that’s the compartment that it was in.” 

As the first intercepts began appearing on computer screens and digital  recorders that first Saturday in October, less than a month after the attacks, one issue stood out above all others: whom to target. What criteria were the intercept operators to use to decide whether the American on the other end of that phone call or e-mail was linked to al-Qaeda or an innocent citizen constitutionally guaranteed the right to privacy? Under F.I.S.A, the Congress put that decision in the hands of the F.I.S.A court judges, independent arbiters with great experience and knowledge in the law, as well as extensive experience in determining whether there was probable cause—the high standard required by the Fourth Amendment—to begin targeting someone as a member of al-Qaeda. 

Hayden’s secret program bypassed the judges and instead left those decisions far down the food chain, to people with no legal training at all— “shift supervisors,” according to both Hayden and his top lawyer, Bob Deitz. The N.S.A would become judge, jury, and eavesdropper all in one. “I don’t make those decisions,” said Hayden. “The director of Sigint out there doesn’t make those decisions. Those decisions are made at the program level and at the level of our counter terrorism officer.” Defensively, he noted, “I’m trying to communicate to you that the people who are doing this, okay, go shopping in Glen Burnie and their kids play soccer in Laurel. And they know the law. They know American privacy better than the average American, and they’re dedicated to it . . . This isn’t a drift net out there where we’re soaking up everyone’s communications. We’re going after very specific communications that our professional judgment tells us we have reason to believe are those associated with people who want to kill Americans. That’s what we’re doing.” Deitz added, “So this is not—this isn’t simply Liberty Hall.” 

In addition to the issue of impartial judge versus partial eavesdropper, there is the question of different standards for deciding if an American is somehow affiliated with a terrorist organization. “They’re targeted on al-Qaeda,” said Hayden. “There is a probable cause standard. Every targeting is documented. There is a literal target folder that explains the rationale and the answers to the questions on a very lengthy checklist as to why this particular [phone] number we believe to be associated with the enemy.” 

But the term “probable cause” at the N.S.A is a misnomer. In fact, their standard is “reasonableness,” which is much lower than that required by both F.I.S.A and the Fourth Amendment. “The standard that is most applicable to the operations of N.S.A,” said Hayden, “is the standard of reasonableness, you know—is this reasonable?” He then gave an example of how the warrant less system works. “N.S.A in the conduct of its foreign intelligence work intercepts a communication from a known terrorist, let’s say in the Middle East, and the other end of that communication is in the United States. There—one end of that communication involves a protected person, all right? Everything N.S.A is doing is legal up to that point. It is targeting the foreign end, it has a legitimate reason for targeting it, and so on, all right? But now, suddenly, we have bumped into the privacy rights of a protected person, okay? And no warrant is involved, okay? We don’t go to a court. But through procedures . . . we must apply a standard to protecting the privacy of that individual.” 

Inevitably, mistakes are made and innocent people are targeted. “Clearly,” Hayden acknowledged, “I think logic would dictate that if you’re using a probable cause standard as opposed to absolute certitude, sometimes you may not be right.” But, he added defensively, that doesn’t make the initial decision wrong. “To put someone on targeting under N.S.A anywhere in the world . . . and at some point end targeting doesn’t mean that the first decision was wrong, it just means this was not a lucrative target for communications intelligence.” 

The NSA’s track record on accuracy, however, leaves much to be desired. As even Hayden now admits, the agency got the war in Iraq completely wrong. “When we didn’t find the weapons after the invasion and the occupation,” he said, “I brought our analysts in, NSA. Now, they’re not all source, they just do Sigint. And I said, ‘Come on, we got five things out there, chem, bio, nukes, missiles, and UAV's, give me your confidence level on each one . . . zero to ten, how confident were you on the day we kicked off the war?’ . . . Nukes was lowest at three, missiles was highest at ten, everything else was five, seven, and eight . . . As we went further into this—I had them back in a month or two later—their whole tone and demeanor had changed. There was a lack of confidence. Everything was being marshmallowed to me, a lot of possibles and could haves and maybes and so on.” 

The NSA scanned thousands of calls in the U.S. without a warrant, some briefly and others for longer periods. Those considered suspicious—about five hundred people at any one time during the beginning of the program and about one hundred people by 2007—would become targets. Overseas the number of people targeted by the N.S.A on any particular day ranged from five thousand to seven thousand. Occasionally, following the capture of an al-Qaeda computer or terrorist, the numbers would jump as new names and phone numbers were discovered in databases or phone books. Also, there was a built-in multiplier effect: if one person was targeted and he was in communication with a dozen other people about whom the agency became suspicious, they also could end up on the N.S.A’s phone-tree target list. And if a person in the U.S. seemed particularly important, the N.S.A could then go to the F.I.S.A court, meet the probable cause standard, and obtain a warrant to begin monitoring his or her communications. According to Hayden, “There were other circumstances in which clearly you wanted more than the coverage of international communications, and under this authorization, you would have to go to the F.I.S.A court in order to get a warrant for any additional coverage.” 

Had the warrant less eavesdropping system been in effect prior to 9/11, Hayden insists, both Mihdhar and Hazmi would have been detected. “I can demonstrate,” he said, “how the physics and the math would work . . . Had this been in place prior to the attacks, the two hijackers who were in San Diego, Khalid al-Mihdhar and Nawaf al-Hazmi, almost certainly would have been identified as who they were, what they were, and most importantly, where they were.” In fact, there was no need for such a system. If Hayden had simply done as his job allowed and traced the calls and e-mail back from the Yemen ops center and obtained a F.I.S.A warrant for the California phone numbers and e-mail address, he would have discovered who, what, and where they were back in the spring of 2000. And then by monitoring their domestic communications, the F.B.I. could have discovered the other members of the group. 

Those involved in the warrant less eavesdropping operation soon began to realize its limitations. By gaining speed and freedom they sacrificed order and understanding. Rather than focusing on the most important and potentially productive targets, which was required when going through the F.I.S.A court, they took a shotgun approach. They began monitoring thousands and thousands of “al-Qaeda affiliates,” all of which proved unproductive, flooding the FBI with useless intercept reports, slowing down legitimate investigations, and placing thousands of innocent names on secret blacklists. The Do Not Fly list alone quickly ballooned from about twenty to over forty thousand names, many generated by the NSA’s warrant less program as the agency zoomed from dangerously under reacting prior to 9/11 to dangerously overreacting afterward. 

For nearly thirty years, the NSA’s massive ear had been locked in place pointing outward. Now Hayden broke the lock and once again turned it inward, eavesdropping on Americans without a warrant. Nearly rusted on its pedestal and in need of new wiring, the NSA would require a major overhaul, from the intercept stations on the front end to the powerful supercomputers in the center to the analytical teams on the back end.

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Highlander 140s

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