PART 8: 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 

BOOK FOUR 

DISCOVERY 

Fractures 

For Joe Tomba, it was a homecoming of sorts. Twenty-eight years earlier he had turned in his security badge and driven away from NSA headquarters for the last time, never thinking he would ever return. But now in 2004, both he and the NSA had come full circle. In 1976 the agency was facing the potential of a major scandal involving warrant less eavesdropping on millions of Americans. At the same time, Donald Rumsfeld at the Pentagon and Dick Cheney at the White House were urging the president to stonewall any congressional inquiry. At the center of the controversy, facing a congressional subpoena to testify about the secret program, was Joe Tomba. But under orders from President Gerald R. Ford, he refused, and was subsequently cited for contempt of Congress by a congressional subcommittee. 

By 2004, three years after Mike Hayden launched the NSA’s warrant less eavesdropping program, the chest-thumping, freewheeling days of anything-in-the-name-of-security were coming to a close. Fractures were now beginning to appear in the thick wall of secrecy surrounding the program and Hayden began to think the unthinkable, that details of the program would leak and suddenly the agency would be back reliving the nightmare years of the mid-1970's. Back to the time when the director was forced to answer hostile questions in front of an angry, open hearing in Congress and stone-faced FBI agents read the Miranda rights to senior agency officials facing possible arrest and imprisonment. With those thoughts in mind, the agency began putting together a video to help guide a new generation of NSA employees through the minefields of congressional inquiries and subpoenas. Thus, the agency invited Joe Tomba to lend his thoughts to the film: thoughts on what to expect when the wall of secrecy comes tumbling down around a warrant less eavesdropping program. 

Now Tomba was back at Fort Meade, Cheney was back at the White House, Rumsfeld was back at the Pentagon, and the NSA was back on the verge of another eavesdropping scandal. As he looked around at the agency, which had grown into a sprawling city, Tomba’s thoughts likely drifted back three decades, back to that cold day in February when he was ordered to defy Congress and protect the program and the senior officials behind it. 

The troubles, as they often do, began with a leak. On July 22, 1975, the New York Daily News charged that for at least five years the NSA routinely eavesdropped on commercial cable traffic to and from the United States. The news shocked many around the country and prompted the House Government Operations Subcommittee on Government Information and Individual Rights to launch an investigation. At the time, few people in Washington generated as much fear in government circles as Bella S. Abzug, the subcommittee’s hat-wearing chairwoman. To those occupying the seats of power she was like an ammunition-laden cargo plane out of control. 

Realizing the difficulty in directly calling NSA officials to testify, Abzug decided to try a different tack. She would instead drag before the committee, in open session, the executives from the international communications companies who either knew about the massive eavesdropping operation code-named Operation Shamrock, or had participated in it. Whereas the NSA might be able to hide behind the shields of classifications and executive privilege, the same protection was not available to private corporations. 

But when Don Rumsfeld, the White House chief of staff, first became aware of the Abzug investigation in late October, he urged President Ford to launch a major counterattack. As a result, RCA Global and I.T.T World Communications, two of the companies that had cooperated with the agency and had been called to testify, suddenly informed the subcommittee that they would refuse to send officials unless so ordered by a subpoena. Then on the day before the start of the scheduled hearings, a platoon of officials from the White House, NSA, Pentagon, and Justice Department converged on the chairwoman in an effort to change her mind about holding public sessions. In the delegation were NSA director Lew Allen, Pentagon intelligence chief Albert Hall, Deputy Attorney General Harold Tyler, Special Counsel to the President John Marsh, and White House congressional liaison Charles Leppert. Their argument was that such hearings would jeopardize either a current Justice Department criminal investigation or the national security. 

Unimpressed, Abzug refused to cancel or postpone the hearings. So, in a last-ditch effort, only moments before the congresswoman gaveled the hearing to order, Attorney General Edward H. Levi personally came to the hearing room and tried his own appeal. He fared no better than the others, and at eleven o’clock on October 23, 1975, the hearings began as scheduled—but without the main witnesses. The only testimony came from two representatives of AT&T and one of its subsidiaries, Chesapeake & Potomac Telephone Company. 

Conceding the first round to the administration, the combative New York Democrat offered both Allen and Levi a chance to come before the committee and state their case for the record. Both refused. Thus, on February 4, 1976, subpoenas were issued to Joe Tomba and executives of I.T.T World Communications, RCA Global, and Western Union International. By then, Rumsfeld had become secretary of defense, putting him in charge of the NSA, and Dick Cheney had become the White House chief of staff, replacing Rumsfeld. Both believed in maximum executive power and thus encouraged Ford to flex his presidential muscle and fight back as hard as possible. Thus, on February 17, in an extraordinary and unprecedented expansion of the doctrine of executive privilege, Ford instructed Rumsfeld and Attorney General Levi to inform Tomba and the company executives “that they should decline to comply.” 

The following day Rumsfeld instructed Tomba that, inasmuch as President Ford has asserted executive privilege in the matter, the subpoenas were not to be complied with. Then, for the first time in history, the concept of executive privilege was extended to a private corporation: Attorney General Levi, in a letter to the attorney for Western Union, wrote, “On behalf of the President, I hereby request that Western Union International honor this invocation of executive privilege.” 

With the stage set for a major battle between the Congress and the executive branch, on February 25 the Manhattan congresswoman once again called the hearings to order and the subcommittee turned its attention to Joseph J. Tomba, a dark-haired, middle-level NSA employee in his mid-thirties. An engineer with sixteen years of service at the NSA, he had been recruited during his senior year at West Virginia University in 1960. Assigned in the mid-1960's to the C1 Group in PROD, the NSA’s operations division, he eventually was promoted to a supervisory position. In 1970 he apparently took over management of Operation Shamrock from a Mr. Feeney, who had held the position for eighteen years, from the time the NSA was created in 1952. So compartmentalized was the program that besides the middle-level manager, the only other persons exercising responsibility over the operation were the director and deputy director.

Under orders from Rumsfeld and the president, Tomba sought refuge behind executive privilege, but not before he drew the ire of the subcommittee with a brief opening statement. “General Allen has asked me to convey to you,” he told a surprised Abzug, “his willingness to attempt to meet the requirements of your subcommittee along with the necessary safeguards applicable to any classified information. To this end, his staff is available to work with your people to define more precisely your exact information requirements.” “I certainly appreciate your bringing that message to us personally,” the chairwoman responded after stating that the subcommittee already had invited the general on several occasions, “particularly since it is quite obvious that apparently no telephone communication can be made without interception.” A few minutes later, by a vote of 6 to 1, the subcommittee voted to recommend to the full committee that Tomba and the other witnesses be cited for contempt of Congress. 

Stonewalled by the government, the subcommittee next turned to the telegraph companies. On March 3, Thomas S. Greenish, executive vice president of Western Union International, testified before the panel and turned over an eight-year-old list of NSA targets, an action that Ford, Cheney, and Rumsfeld had vigorously attempted to block by asking the corporation to honor Ford’s all-embracing claim of executive privilege. 

Following Greenish to the witness table was Howard R. Hawkins, chairman of the board and chief executive officer of RCA Global Communications, along with several of his subordinates. Their testimony represented still another defeat for the administration. Attorney General Levi had earlier asked, “on behalf of the President,” that representatives of the corporation neither testify before the subcommittee nor produce documents, “until procedures can be agreed upon to assure that the president’s invocation of executive privilege is not effectively undone.” Apparently fearing the stormy congresswoman more than the president and attorney general, Hawkins and his associates went ahead with their testimony and also produced an assortment of records. About a week later, George Knapp, president of I.T.T World Communications, and several other employees also testified about Shamrock. By then the administration seemed to have thrown in the towel; it made no attempt to prevent their appearance.

After the hearings, the subcommittee staff began work on a draft report, to be issued by the Government Operations Committee, that examined the NSA’s eavesdropping activities on communications entering and leaving the country. But a controversy soon arose over whether the report should be released, and, following its completion in the fall of 1977, the decision was made to quietly kill it. Titled “Interception of International Telecommunications by the National Security Agency,” the draft of the report pointed to the NSA’s “extraordinary capability to intercept” and concluded that “no other agency of the federal government undertakes such activity on such an immense scale.” Calling the enormous secrecy surrounding the agency “obsessive and unfounded,” the report went on to charge that the NSA’s appeal to the Congress and the public that they simply “trust us” was totally unjustified when viewed in light of the agency’s long record of privacy violations.

The report was particularly critical of the agency’s constant attempts to hide behind semantics. Pointing to a statement by Vice Admiral Bobby Inman, General Allen’s successor as NSA director, in which he stated: “Let there be no doubt . . . there are no U.S. citizens now targeted by the NSA in the United States or abroad, none,” the report called the declaration “misleading.” It added that “while an American citizen or company might not be targeted by name, by virtue of his international activities, his communications might be selected by the NSA on the basis of its ‘foreign intelligence’ criteria. The NSA has not denied that it, in fact, ‘selects’ U.S. messages of this nature.” 

Although spared the final indignity of a public report on Shamrock by the Abzug subcommittee, the NSA was not yet out of the fire. The Rockefeller Commission, ironically set up by the White House under Vice President Nelson A. Rockefeller to counter the congressional investigations, came up with its own allegations of questionable activities on the part of the NSA.

As a result, Attorney General Levi established a top-secret task force made up of Justice Department prosecutors and FBI agents to investigate the commission’s findings. It was the first time that any law enforcement agency had ever been charged with investigating the legality of the NSA’s operations, and the reaction within the agency was predictably hostile. Noting that “attitudes ranged from circumspection to wariness,” Dougald D. McMillan, author of the task force’s final report, wrote that “one typically had to ask the right question to elicit the right answer or document.” He pointed out that “it is likely, therefore, that we had insufficient information on occasion to frame the ‘magic’ question. One also had to ascertain the specific person or division to whom the right question should be addressed, since compartmentalization of intelligence-gathering often results in one hand not knowing what the other is doing.”

Nevertheless, over the course of twelve months, the handpicked, specially cleared team of lawyers and agents gradually pulled back layer after layer of secrecy cloaking some of the NSA’s most advanced eavesdropping technology and super secret processing techniques. The final report of the task force, classified Top Secret Umbra/Handle via Comint Channels Only, and excluded from declassification, was considered so sensitive that only two copies were ever printed. In the end, despite the fact that the task force had managed to uncover numerous examples of potentially illegal eavesdropping activities, the report concluded with the recommendation that the inquiry be terminated. “There is likely to be much ‘buck-passing’ from subordinate to superior, agency to agency, agency to board or committee, board or committee to the President, and from the living to the dead.” 

In addition, calling the subject matter of the report “an international cause célèbre involving fundamental constitutional rights of United States citizens,” the task force pointed to the likelihood of “graymail” and the possibility that defense attorneys would probably subpoena “every tenuously involved government official and former official” to establish that authority for the various operations emanated from on high. “While the high office of prospective defense witnesses should not enter into the prosecutive decision,” the report noted, “the confusion, obfuscation, and surprise testimony which might result cannot be ignored.” Rather than point a finger at any one official or any one agency, the task force instead indicted the national security system as a whole, a system that granted the agencies “too much discretionary authority with too little accountability . . . a 35-year failing of Presidents and the Congress rather than the agencies.”

While on the one hand charging that those NSA and cable company employees who participated in Shamrock apparently violated several sections of the Communications Act of 1934, the “Prosecutive Summary” pointed to the NSA’s highly secret executive branch “charter,” National Security Council Intelligence Directive (N.S.C.I.D) No. 9 (later N.S.C.I.D No. 6), which gave the agency virtual carte blanche to disregard legal restraints placed on the rest of the government. “Orders, directives, policies, or recommendations of any authority of the Executive branch relating to the collection . . . of intelligence,” the top-secret document reads, “. . . shall not be applicable to [the NSA’s] Communications Intelligence activities, unless specifically so stated.” The summary concluded: “Its birth certificate [which was, by the way, top secret] said it did not have to follow the limitations in the N.S.E.S [National Security Electronic Surveillance] area that limited other agencies unless it was expressly directed to do so.”

Another reason for recommending against prosecution with regard to Shamrock was far less complex: “It is not illegal to ‘ask’ a company to give out copies of cables. If the company complies, it may be violating the statute but the recipient would not.” 

Mike Hayden knew the history of Shamrock as if it were tattooed on his eyelids. And he knew that once a scandal flared, it could quickly turn into a firestorm and level everything in its path. It was largely because of Shamrock that F.I.S.A and the F.I.S.A court were created in the first place. And it was one of the reasons that Congress put sharp teeth in the law, making violation a felony punishable by five years in prison for every count—every warrant less intercept. 

In March 2004, a nervous Mike Hayden began seeing the first sign of fractures in the wall of secrecy protecting his own Shamrock, his warrant less eavesdropping program.

Emergency

Stretched along Washington’s Pennsylvania Avenue, the Justice Department has the appearance of a place that can hold a secret. Its doors are two stories tall and made of high-strength aluminum, and its walls are Indiana limestone over a steel frame. By 2004, the building was holding a great many secrets, the most sensitive of which was the presidential authorization directing the NSA to bypass the F.I.S.A court and launch a wide-ranging list of warrant less eavesdropping and data mining programs. So great was the secret that even James Comey, the deputy attorney general and the number two law enforcement official in the country, was not cleared for the program until late in his tenure. 

Tall and lanky with a touch of Jimmy Stewart, Comey, the forty-five year-old grandson of an Irish cop, had come a long way. But in the Bush administration, access to the innermost secrets was a decision based less on loyalty to the law than loyalty to the lawyer, specifically David Addington, the counsel to Dick Cheney (later his chief of staff). Then forty seven, Addington had worked for Cheney much of his adult life, and both shared a common belief that over the past few decades the power of the president had been reduced to that of a petty bureaucrat. Their goal was to restore both power and grandeur to the office, and scuttling the F.I.S.A court, with its nitpicky judges, was one step down that road. “We’re going to push and push and push until some larger force makes us stop,” he once said. Comey, a straight-arrow government worker without a political agenda, did not fit into Addington’s world. As long as Attorney General John Ashcroft could rubber-stamp the program’s renewal every forty-five days, there would be no need to brief him. Nor had his predecessor, Larry Thompson, ever been cleared for the program. It was only at the insistence of Jack Goldsmith, the assistant attorney general in charge of the Office of Legal Counsel, that Comey was read in on it. “There was a little bit of a struggle getting Mr. Comey read into the program,” said Goldsmith.

Forty-one-year-old Jack Goldsmith, stocky and rumpled like a doddering uncle, had solid conservative credentials. But his loyalty, like that of his boss Comey, was to the statue of Lady Justice in the building’s Great Hall, not to Addington and Cheney. Nor did he share their fever for turning the presidency into a monarchy. Instead, he helped lead a small coterie of lawyers who were repelled by the Bush administration’s use of bureaucratic strong-arm tactics to bend, twist, and break the laws they had little use for, such as F.I.S.A. And Goldsmith also did not buy into the legal somersaults required to justify the warrant less surveillance program the Bush administration later tagged the Terrorist Surveillance Program (T.S.P).

Calling Addington “the chief legal architect of the Terrorist Surveillance Program,” Goldsmith added, “he and the vice president had abhorred F.I.S.A’s intrusion on presidential power ever since its enactment in 1978.” Addington and Cheney had originally wanted John Yoo, the architect of the legal justification for the NSA’s warrant less program, to be promoted to head the office, but Ashcroft thought Cheney was already interfering too much in his department and that was never going to happen. 

Since he first arrived in October 2003, Goldsmith had been reviewing the administration’s warrant less eavesdropping program, and he didn’t like what he saw. “It was the biggest legal mess I’ve ever encountered,” he said, and submitted his view to Ashcroft in a top-secret draft memorandum titled “Review of Legality of the [NSA] Program.” By early March 2004, both he and Comey concluded the Justice Department could no longer certify the program as legal. “There were certain aspects of programs related to the TSP that I could not find a legal support for,” said Goldsmith. 

As a result, a decision had to be made—and made quickly—as to whether to recommend that Ashcroft refuse to re-certify it. “The program had to be renewed by March the 11th—which was a Thursday—of 2004,” said Comey. “And we were engaged in a very intensive reevaluation of the matter.” About a week before, on Thursday, March 4, Comey met with Ashcroft for an hour to pass on his and Goldsmith’s analysis of the NSA’s warrant less programs. “We had concerns as to our ability to certify their legality,” said Comey. Ashcroft agreed and decided he was not going to sign the re-certification form the next day. It was a program he had never liked from the beginning but felt he was ordered to go along with. The White House had “just shoved it in front of me and told me to sign it,” he told several associates. 

A few hours later Ashcroft was in his office preparing to announce the convictions of three defendants linked to an alleged “Virginia jihad network.” Suddenly he began experiencing increasing pain in his stomach. A call was made to White House physician Daniel Parks, who examined Ashcroft and advised him to go to the hospital. At George Washington University Hospital, he was admitted to a special four-room “pod” in the intensive care section that was cordoned off and designed to protect VIP patients. Following an examination, doctors determined that the attorney general had a severe case of gallstone pancreatitis, an inflammation of a digestive organ that can be very painful. Back at the Justice Department, Comey became the acting attorney general. 

By Monday doctors had decided that, as a precautionary measure, they needed to remove Ashcroft’s gallbladder to prevent a recurrence of the painful gallstones, and on Tuesday, March 9, Dr. Bruce Abell began the operation, inserting a narrow instrument into the attorney general’s abdomen through the navel and extracting the gallbladder. It was a major procedure lasting about an hour and a half that left Ashcroft weak and in guarded condition. 

At noon, shortly after Ashcroft was wheeled into his intensive care suite, Comey was at the White House taking his seat in the West Wing office of Andy Card, the president’s chief of staff. At fifty-six, Card knew George W. Bush almost as well as a brother. He was seated with Bush’s father, the former president, when he vomited on the Japanese prime minister; he was standing next to father and son as they shed tears in the Oval Office on Inauguration Day 2001; and he was the one who whispered in George W.’s ear on 9/11 that the country was under attack. Now his job was to keep the president’s warrant less eavesdropping program going despite the warning signals from Comey. 

So secret was the program that a good percentage of those officials cleared for it were also present in the room, including Cheney, Addington, Hayden, FBI Director Robert Mueller, CIA Deputy Director John McLaughlin, and White House Counsel Alberto Gonzales. The news was not good. Comey told the group that the department had determined the NSA program had no legal basis and he would not renew it. “As acting attorney general,” he said, “I would not certify the program as to its legality.” 

Without Comey’s signature, the NSA would have to immediately pull the plug on the operation or possibly face criminal charges. Worse, Cheney and Card suddenly realized that their tightly controlled White House now had a loose cannon atop the Justice Department. Four hours later, Comey was back in Card’s office with Cheney, Hayden, Addington, and the others, but this time he brought with him his top legal experts from Goldsmith’s office to explain in detail why the NSA program was not legal. 

On Wednesday morning the Washington Post ran an article about the attorney general indicating that he was having a rough time. “Ashcroft in Guarded Condition After Surgery,” said the headline on page two. And at the Justice Department there appeared to be an odd calm, with no communication from the White House concerning the program’s renewal, which was scheduled for the following day. 

Far from calm, there was near panic at the White House as Card and Gonzales feared that a shutdown of the NSA program was only hours away. Pulling out all the stops, late in the afternoon they called an emergency meeting in the Situation Room with the “Gang of Eight.” That included the top Democrat and Republican in both the Senate and House, and in the Senate and House intelligence committees. “We informed the leadership that Mr. Comey felt the president did not have the authority to authorize these activities,” said Gonzales, “and we were there asking for help, to ask for emergency legislation.” According to Gonzales, “the consensus in the room from the congressional leadership is that we should continue the activities, at least for now, despite the objections of Mr. Comey. There was also consensus that it would be very, very difficult to obtain legislation without compromising this program, but that we should look for a way ahead.” 

But West Virginia senator Jay Rockefeller, the ranking Democrat on the Senate Intelligence Committee, later all but accused Gonzales of lying. Rockefeller, who was at the meeting, insisted he had “never heard of” Comey at the time and that they were never told of any infighting at the Justice Department over intelligence programs. He also denied that they were asked to enact legislation to overcome Comey’s resistance. “They were not telling us what was really going on,” Rockefeller said. Another person at the meeting who disagreed with Gonzales’s assessment was the California Democrat Nancy Pelosi, then the House minority leader and later speaker. “I made clear my disagreement with what the White House was asking,” she said. 

Gonzales and Card had one last desperate option. Race to the hospital, tell Ashcroft about the congressional support, and get him to reclaim his authority as attorney general and then re-certify the program. But first they would have to call him up to ask him to see them. And that call would have to come from Bush himself. 

By 7:00 p.m. it was dark, and Comey decided to head for home. He climbed into his black Justice Department SUV, which was driven by an FBI agent and trailed by a follow-up car. Soon after the car turned onto Constitution Avenue, however, his cell phone rang. On the other end was David Ayers, Ashcroft’s chief of staff. “He had gotten a call from Mrs. Janet Ashcroft from the hospital,” recalled Comey. “She had banned all visitors and all phone calls. So I hadn’t seen him or talked to him because he was very ill. And Mrs. Ashcroft reported that a call had come through, and that as a result of that call Mr. Card and Mr. Gonzales were on their way to the hospital to see Mr. Ashcroft.” Comey added, “I have some recollection that the call was from the president himself.” 

Now Comey understood the calm. Rather than wait until Thursday and have the NSA program declared legally unsupportable and scrapped, the president and his men had decided to make an end run around him the night before. “I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that,” said Comey. “So I hung up the phone, immediately called my chief of staff, told him to get as many of my people as possible to the hospital immediately. I hung up, called [FBI] Director Mueller.” At 7:20, Mueller received the call while having dinner in a restaurant with his wife and daughter. “I’ll meet you at the hospital right now,” Mueller responded. Comey then turned to his security detail. “I need to get to George Washington Hospital immediately,” he told them as they turned on the car’s emergency equipment. 

With the siren wailing and red and blue lights flashing from the roof and grille of the car, Comey was at the hospital within just a few minutes. “I got out of the car and ran up—literally ran up the stairs with my security detail,” he said. “And so I raced to the hospital room, entered. And Mrs. Ashcroft was standing by the hospital bed, Mr. Ashcroft was lying down in the bed, the room was darkened. And I immediately began speaking to him, trying to orient him as to time and place, and trying to see if he could focus on what was happening, and it wasn’t clear to me that he could. He seemed pretty bad off.” 

The White House was just blocks away and Comey knew that the president’s men could arrive any minute. He needed some muscle to keep from being removed from the room when they arrived. “Director Mueller instructed the FBI agents present not to allow me to be removed from the room under any circumstances,” said Comey, who took a seat in an armchair by the head of the bed with his two aides standing behind him. It was a short wait. A few minutes later, Gonzales and Card stormed in. 

“How are you, General?” Gonzales asked, the envelope containing the unsigned NSA re-certification in his hand. “Not well,” Ashcroft replied, flatly refusing to sign the document. “But that doesn’t matter, because I’m not the attorney general. There is the attorney general,” he said, pointing at Comey. Their ambush foiled, Comey could feel the room turn to ice. “The two men did not acknowledge me,” he said. “Be well,” Card said to Ashcroft as the two turned and walked from the room. 

A few minutes later, at 7:40, FBI director Mueller arrived at the intensive care suite and Comey filled him in on what had taken place. Mueller then went into Ashcroft’s room and saw him sitting in a chair. “Feeble, barely articulate, clearly stressed,” he noted. To Mueller’s surprise, Ashcroft complained that even he, the attorney general, was never able to get the full details of the NSA program from the White House. Mueller would later note, “The AG also told them [Card and Gonzales] that he was barred from obtaining the advice he needed on the program by the strict compartmentalization rules of the W.H [White House].” As Mueller was in with Ashcroft, an FBI agent notified Comey that he had an urgent call in the command center that had been set up next to Ashcroft’s room. 

“I took the call,” said Comey. “And Mr. Card was very upset and demanded that I come to the White House immediately.” But in an unprecedented act of distrust at the highest levels of government, the nation’s top law enforcement official refused to meet alone with the president’s chief of staff in the White House. “I responded that, after the conduct I had just witnessed, I would not meet with him without a witness present . . . I was concerned that this was an effort to do an end run around the acting attorney general and to get a very sick man to approve something that the Department of Justice had already concluded—the department as a whole—was unable to be certified as to its legality.” 

Comey was boiling. “After what I just witnessed,” he told Card, “I will not meet with you without a witness. And I intend that witness to be the solicitor general of the United States.” At the time, the solicitor general was Ted Olson, whose wife, Barbara Olson, died on 9/11 when her American Airlines jet smashed into the Pentagon. “Until I can connect with Mr. Olson, I’m not going to meet with you.” Card asked Comey if he was refusing to come to the White House, a fireable offense. “No, sir, I’m not. I’ll be there. I need to go back to the Department of Justice first,” said Comey. 

At about 11:00, the FBI security detail drove Comey and Olson to the White House. “We went into the West Wing,” said Comey. “Mr. Card was concerned . . he had heard reports that there were to be a large number of resignations at the Department of Justice.” Comey reiterated his belief that the NSA program was outside the law and said he would not sign the certification. With the issue still unresolved, the group departed the White House as the clock neared midnight and the deadline for approval arrived. 

On Thursday, Bush decided to reauthorize the NSA program in spite of the view by his own Justice Department that it was not legal. It had not been legal from the start, but Bush and Hayden had at least taken comfort from the fact that the attorney general would put his stamp of approval on it every forty-five days. Now they didn’t even have that. Worse, they were on notice that they were breaking the law. 

At the Justice Department, it was the final straw for Comey. “The program was reauthorized without us and without a signature from the Department of Justice attesting as to its legality,” he said. “And I prepared a letter of resignation, intending to resign the next day, Friday, March the 12th . . . I didn’t believe that as the chief law enforcement officer in the country I could stay when they had gone ahead and done something that I had said I could find no legal basis for . . . It was going forward even though I had communicated, ‘I cannot approve this as to its legality.’ ” 

Not only was Comey planning to resign, so were Mueller, Goldsmith, and a slew of other Justice Department officials, including the attorney general himself. “Mr. Ashcroft’s chief of staff asked me something that meant a great deal to him,” said Comey. “And that is that I not resign until Mr. Ashcroft was well enough to resign with me. He was very concerned that Mr. Ashcroft was not well enough to understand fully what was going on. And he begged me to wait until—this was Thursday that I was making this decision—to wait until Monday to give him the weekend to get oriented enough so that I wouldn’t leave him behind, was his concern.” Both Comey and Ashcroft’s chief of staff were convinced the attorney general would join in the mutiny. “Friday would be my last day and Monday morning I would resign,” said Comey. 

Never in history had so many senior government officials threatened to resign to protest an administration’s disregard for the law. That the top leadership of the Justice Department and the FBI had agreed to a mass resignation, led by the attorney general, indicates the seriousness with which they viewed the misconduct of both the Bush White House and Hayden’s NSA. 

Bush knew what happened following the “Saturday Night Massacre” at Justice during Nixon’s Watergate years, when top officials quit rather than fire the special prosecutor, and he had no stomach to fight an almost certain call for his impeachment. In addition, it was an election year and in a few months he would be fighting John Kerry to remain in the White House, and a messy scandal at the Justice Department would be just what the Democrats would like. 

On Friday morning, Comey, together with Mueller, went to the Oval Office to brief Bush and Cheney on counter terrorism issues. But after the short session, this time there was something different. “As I was leaving, the president asked to speak to me, took me in his study, and we had a one on one meeting,”said Comey. During their meeting, Comey told Bush what changes the NSA would have to make in order to bring the program back within the law—changes Cheney still opposed. At the end of the session, Bush was still noncommittal but agreed to talk to Mueller, who was waiting for Comey in the White House lobby. “I’ll talk to Director Mueller,” said Bush. At 9:45, Mueller gave the president a similar appraisal of the NSA program’s lack of legal standing and Bush, overruling Cheney, finally agreed to implement the changes. 

The changes involved scrapping several of the NSA’s most illegal data mining operations, reworking others, and more fully justifying the program not just under the president’s Article 2 inherent authority argument, but also under an even less valid argument. This was the congressional authorization to use force against al-Qaeda—which few even in Congress believe granted authority for eavesdropping on Americans. But according to Comey, it would be three weeks or so before the Justice Department was able to re-certify the program—three weeks in which the NSA and the White House were operating a surveillance system without legal authorization. 

Despite the changes, the NSA’s warrant less program continued to be operated outside the law. While a few of the most egregious aspects had been eliminated or modified, it was still in violation of F.I.S.A, which required all national security eavesdropping to be approved by the F.I.S.A court—under penalty of imprisonment and with no exceptions. But because of the Bush administration’s trademark go-it-alone policy, the program would continue in violation of F.I.S.A. And Hayden’s wall of secrecy surrounding it would remain intact. But not for long. 

Exposure

In the late summer of 2004, Hayden received a call from James Risen, forty-eight, a reporter at the New York Times, about an NSA program to eavesdrop on Americans without a warrant. Hayden was stunned. Without confirming anything, he said that whatever the NSA might be doing was “intensely operational” and, he added quickly, “legal, appropriate, and effective.” He then quickly ended the conversation. 

As Hayden hung up the phone he could see his foot-thick wall of secrecy finally crumbling around him. It was time to start preparing his employees for possible hearings and investigations. Time to explain the do's, don’ts, and dodges to those potentially facing subpoenas; time to recall Joe Tomba to NSA to help explain what to expect and what not to expect when staring up at a half circle of angry members of Congress. Some NSA officials even began seeking out defense lawyers. 

The phone call touched off a quiet, escalating, and long-running game of cat and mouse in which the NSA and later the White House alternated between threats and pleas to convince the Times to scrap the story. In the beginning, the officials would only discuss the eavesdropping in hypothetical's, telling the Times that “if” such a program existed, “disclosure would do serious and perhaps irreparable harm to national security.” Eventually the hypothetical's were dropped and replaced by actual details. 

After sitting on the story for more than a year, the Times again got in touch with the NSA in the fall of 2005, and Hayden and the Bush administration once again went to battle stations, inviting Times editors and reporters to a power session at the White House. There to greet them was Hayden; newly appointed Secretary of State Condi Rice; National Security Adviser Stephen Hadley; John Negroponte, the director of national intelligence; and Harriet Miers, the White House counsel. Cheney, along with Hayden the architect of the plan, had considered attending but wisely, given his reputation within the press, decided to sit out the session. 

At the meeting, the Times’s executive editor, Bill Keller, was warned that publication of the story would alert the terrorists and “shut down the game.” “It’s all the marbles,” said one official cryptically, adding, “The enemy is inside the gates.” For Hayden, among his most serious concerns was not releasing the fact that most international communications pass through U.S. switches, making them vulnerable to NSA’s eavesdropping. In sum, the consensus was that if there was another 9/11, the Times would share in the blame. But by the time the meeting ended, the White House realized that they had reached a dead end. 

Within hours, however, officials were requesting one final summit—a showdown of sorts between President George W. Bush and Times publisher Arthur Sulzberger Jr. A few days later in the Oval Office, on Monday, December 5, Hayden, carrying a heavy black briefing book, took a seat near the fireplace a few feet from the president. Looking at Sulzberger, Bush said that if the paper went ahead with publication and another attack took place, they would be sitting alongside each other in a congressional hearing room explaining why it happened and how they missed it. Bush then added, “There’ll be blood on your hands.” 

But in the end, Keller and Sulzberger agreed that they had heard nothing new to make them change their minds. The White House asked for more meetings but the decision was to publish immediately. Thus, on Friday, December 16, the Times rolled out its story. 

The next day Bush discussed the NSA program in his Saturday radio address. “In the weeks following the terrorist attacks on our nation,” he said, “I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al-Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.” 

He also said, “The activities I authorized are reviewed approximately every forty-five days. Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland. During each assessment, previous activities under the authorization are reviewed. The review includes approval by our nation’s top legal officials, including the attorney general and the counsel to the president. I have reauthorized this program more than thirty times since the September the 11th attacks, and I intend to do so for as long as our nation faces a continuing threat from al-Qaeda and related groups.”

The following month, concerned about Congress, the press, and the public using the terms “warrant less wiretapping” and “warrant less surveillance” to refer to the program, Bush attempted to rebrand it. His new name was the “Terrorist Surveillance Program (TSP),” something it had never been called before. Later, Attorney General Alberto Gonzales would obliquely make a distinction. He would indicate that the TSP— mostly voice and data eavesdropping activities—was the program that began around April 2004, following reforms after the infamous Ashcroft hospital visit. The NSA program that was in existence from October 2001 until then—largely highly questionable data mining activities—he would simply call “other intelligence activities.” 

At the NSA there was shock and outrage by many employees who believed that the NSA had long ago learned from its past mistakes and put an end to warrant less eavesdropping on Americans and looking for ways to evade the law. Many believed Hayden had squandered thirty years of hard work to restore the NSA to a place where it could be trusted again by the American public. Some even protested to the agency’s inspector general, asking for an internal investigation, a serious indication of how far the agency’s star had fallen even within its own secret city. 

“Until the story broke in the New York Times,” Hayden said, “no one who was asked to be part of this program inside the National Security Agency expressed any reservations about being part of this program. After the story broke, people who were not part of the program were quite understandably concerned about what might be going on; they then went to the NSA I.G to ask questions about it.” At a time when the NSA needed a Jim Comey or a Bob Mueller, it had only a three-star sycophant unwilling to protect the agency from the destructive forces of Cheney and Addington. 

Within days of the report, the once solid and airtight F.I.S.A court began developing cracks. U.S. District Judge James Robertson, one of the eleven Top Secret–cleared members of the panel, sent a letter to Chief Justice John G. Roberts Jr. notifying him that he was quitting the court. Though he gave no explanation, two of his colleagues who were familiar with his decision said that Robertson was deeply troubled by the warrant less surveillance, which he found legally questionable. He was also concerned that the program may have compromised the work of the court by using information from illegally obtained taps in applications for F.I.S.A orders. “They just don’t know if the product of wiretaps were used for F.I.S.A warrants—to kind of cleanse the information,” said one person familiar with the court. “What I’ve heard some of the judges say is they feel they’ve participated in a Potemkin court.” 

In August 2006, the NSA and the Bush administration began looking ahead with considerable concern. That month a judge ruled in the first lawsuit brought against the NSA over the warrant less surveillance program, launched by the American Civil Liberties Union shortly after the New York Times article. The organization asked the federal courts to rule that the program was illegal and to bring it to an end. Among the plaintiffs were individuals and groups across the political spectrum, including scholars, lawyers, and journalists (including the author). 

On August 17, 2006, U.S. District Court Judge Anna Diggs Taylor, seventy-three, rejected almost every argument from the Bush administration, including the “inherent powers” of the president, and the “authorization to use military force against al-Qaeda” arguments, and found in favor of the ACLU. Ruling that the NSA program was illegal, violating both F.I.S.A and the Fourth Amendment of the Constitution, she ordered it shut down. “It was never the intent of the framers to give the president such unfettered control, particularly when his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights,” she wrote. “The three separate branches of government were developed as a check and balance for one another.” Rejecting the idea that the president can eavesdrop on Americans simply as a result of his “inherent powers,” Judge Taylor ruled, “There are no hereditary Kings in America and no powers not created by the Constitution. So all ‘inherent powers’ must derive from that Constitution.” Upon hearing the decision, Attorney General Alberto Gonzales called an impromptu news conference. “As you know, today, a district court judge in Michigan ruled that the program was unlawful,” he said. “We disagree with the decision.” 

Shaken by the court’s decision, the NSA immediately asked Judge Taylor to stay the ruling so the program could continue until a decision by an appeals court, which was granted. But the agency faced another major blow in November when the congressional elections gave both houses to the Democrats—representatives and senators who were champing at the bit to begin holding hearings in January on such Bush administration programs as the NSA’s warrant less eavesdropping operation. Also in January was the federal appeals court hearing in which the Bush administration was going to try to convince a panel of three judges to overturn Judge Taylor’s ruling. An unfavorable ruling by the appeals court, and the only salvation would be a positive ruling by the U.S. Supreme Court. 

Given the many storm clouds on the horizon, and growing pressure from the telecoms who were being sued by angry customers and public interest groups, the NSA and the Justice Department began looking for a way out. Eventually, on January 10, 2007, they got one of the eleven judges on the F.I.S.A court, who rotate in and out of Washington, to interpret as permissible a key aspect of the warrant less program. This involved working with a friendly judge to come up with an “innovative” way to interpret the F.I.S.A statute so that the agency could target foreign-to-foreign communications that simply transit a U.S. switch—and the interception is done on U.S. soil—without going to the court for every name. 

Under the traditional interpretation of F.I.S.A, the NSA would need to get a warrant from the F.I.S.A court before targeting the transit communication of either foreign individual as long as it enters the U.S. on a wire, such as an undersea fiber-optic cable, and also as long as it is intercepted inside the U.S.—for example, at the switch or at a listening post such as NSA Georgia. The new “innovative” approach may involve a reinterpretation of the law to include a “programmatic” or blanket approach. Thus the NSA would program into its intercept equipment the names and phone numbers of foreigners whom they have probable cause to believe are members of al-Qaeda or an associate terrorist organization. Under the new interpretation, the NSA may not need to submit an application for these foreign-to-foreign communications, except when one end reaches a U.S. phone. In that case the agency can begin eavesdropping immediately as long as an emergency application is made within three days.

Once the procedures were worked out, the agency only needed to wait until the friendly judge began his or her rotation onto the court—which took place on January 17. Then the judge simply issued the prearranged order and the NSA was in business. “We got a favorable ruling from the court, and in essence, we could conduct our mission,” said Mike McConnell. 

There was thus no longer any need to operate outside the F.I.S.A court. Finally, on January 17, Attorney General Gonzales announced that the warrant less eavesdropping program was coming to an end and the NSA’s eavesdropping activities from then on would once again come under the F.I.S.A court. “All surveillance previously occurring under the Terrorist Surveillance Program (T.S.P) would now be conducted subject to the approval of the F.I.S.C,” Gonzales said. “Under these circumstances, the President had determined not to reauthorize the TSP when the then current authorization expired.” 

The only problem with the NSA’s approach was that the program had to be renewed every few months and that other, less friendly judges might not come to the same interpretation—which is what happened just a few months later. “The second judge looked at the same data and said, ‘Well, wait a minute. I interpret the law, which is the F.I.S.A law, differently,’” recalled McConnell. “And it came down to, if it’s on a wire and it’s foreign in a foreign country, you have to have a warrant.” Suddenly the NSA was back to the pre-9/11 days—at the same time it was racing to find American soldiers kidnapped in Iraq. And their kidnappers’ Iraq-to-Iraq communications were transiting the U.S.—on a wire.

Extremis

Nineteen-year-old Steven D. Green sat in a Midland, Texas, recruiter’s office with a photo of George W. Bush smiling down from the wall. Like the president, Green was a native son of the West Texas oil town, where his schoolmates nicknamed him “the drifter.” By January 2005, the once-proud U.S. Army had been reduced to emptying jail cells and drunk tanks to fill its quota of Iraq-bound soldiers. Criminals, dropouts, and the unemployable were now sought after, given bonuses, outfitted with deadly weapons, and then set loose in a crowded land with few rules, less oversight, and a license to kill. 

A few days before, Green, a bony-faced, unemployed tenth-grade dropout, had been behind bars in a grimy lockup on alcohol-possession charges, his third time under arrest. He was troubled from an early age, one neighbor said. “I don’t know if he killed small cats or anything, but that’s the kind of kid he was.” Nevertheless, like 11,017 others in 2005, many with felony convictions, Green was granted a “moral waiver” by the army and was soon wearing the American flag on his shoulder as he kicked in doors in Baghdad and aimed his M-249 belt-fed machine gun at petrified women and children. 

“I came over here because I wanted to kill people,” he casually told a reporter over a mess-tent dinner of turkey cutlets in February 2006. “The truth is,” he said, shrugging, “it wasn’t all I thought it was cracked up to be. I mean, I thought killing somebody would be this life-changing experience. And then I did it, and I was like, ‘All right, whatever.’ I shot a guy who wouldn’t stop when we were out at a traffic checkpoint and it was like nothing. Over here, killing people is like squashing an ant. I mean, you kill somebody and it’s like ‘All right, let’s go get some pizza.’ ” Green concluded, “See, this war is different from all the ones that our fathers and grandfathers fought. Those wars were for something. This war is for nothing.” 

Despite the fact that Green made no effort to hide his blood lust, the reporter, Andrew Tilghman from the army’s Stars and Stripes newspaper, found the violently psychotic conversation little more than routine. “I just saw and heard a blunt-talking kid,” he said, and thought little more of it. 

A few months later, the “blunt-talking kid” saw an attractive fourteen year-old Iraqi girl and ran his index finger down her cheek as she stood frozen in fear. Thin and tall, Abeer Qasim Hamza al-Janabi lived with her family in a farmhouse about a thousand feet from the checkpoint where Green worked, just outside the sun baked Sunni village of Mahmudiyah, twenty miles from Baghdad. The soldiers would enter the farmhouse frequently under the pretext of searching for “terrorists” but were in reality attempting to get close to Abeer, which means “fragrance of flowers.” They would smile, give her the thumbs-up sign, and say, “Very good, very good.” 

Then, on the night of March 12, 2006, Green and four of his army buddies, including Specialist James Barker, twenty-three, and Sergeant Paul Cortez, drank cheap local Iraqi whiskey mixed with an energy drink and played cards. Between hands, they planned an attack on the girl and her family. After hitting golf balls, they changed into dark clothing and abandoned the checkpoint to go “kill and hurt a lot of Iraqis,” according to one of the men involved. Green grabbed a loaded Russian-made AK-47 rifle, snatched from a dead Iraqi, to use for the killing, figuring the murders would be blamed on fellow Iraqis. Another conspirator stayed behind to monitor the radio and warn them if there was trouble. 

Inside Abeer’s house, Green forced the girl’s parents and five-year-old sister into a bedroom, where he shot the father several times in the head, the mother several times in the abdomen, and the sister in the head and shoulder. “I just killed them, all are dead,” Green boasted to his friends. As Green killed her family, Abeer was in another room being brutally gang-raped by Cortez and Barker. “Cortez pushed her to the ground. I went towards the top of her and kind of held her hands down while Cortez proceeded to lift her dress up,” Barker later admitted. Cortez added, “I lifted up her skirt and took off her stockings while Barker held her hands with his knees. After I was done, myself and Barker switched spots.” As Abeer screamed and cried, Barker shouted at her to “shut up” in Arabic. Then as Cortez stood lookout, Green raped Abeer and then shot her in the head. Cortez poured kerosene onto her body and attempted to light her and the house on fire to cover up the massacre. On the way back to the checkpoint, where Barker grilled chicken wings, Green tossed the AK-47 into the canal. 

Despite a clumsy attempt by army superiors to cover up the crime, details of the grisly murders and the premeditated involvement of U.S. soldiers eventually came to light. Brutalized by the long occupation and outraged by the rape and murders, local farmers became part of the Islamic State of Iraq (I.S.I), a large umbrella group of Sunni insurgents created as a reaction to the U.S. invasion and occupation. Meeting in the fields near the Euphrates River, their operational plan tacked to a tree, the men set their sights on avenging the death of Abeer and her family. They chose the early morning hours of May 12, 2007, near Mahmudiyah, not far from where the slaughter took place. 

On the night of May 11, 2007, two U.S. Humvees took up positions on a lonely stretch of asphalt road in the lush agricultural area on the outskirts of Mahmudiyah. Located in the flat and arid Euphrates River Valley, this area is where the Iraqi desert gives way to soggy irrigation canals and palm trees towering above tall grass. At twilight and in the early morning, it bore an odd resemblance to the rice fields of Vietnam. Parked about 165 feet apart, with their vehicles and gun turrets facing opposite directions, the men, four in each vehicle, were there to keep a lookout for anyone planting explosive devices in the road. It was the third night in a row soldiers had parked in the same spot. 

Just after 4:00 a.m. on Saturday, a sleepy time in the morning when no one in either vehicle was up in the gun mounts keeping a lookout, about fifteen Iraqis met at a farmhouse, picked up their weapons, and then quietly made their way to the road. Once there, they cut through razor-wire coils, snuck into the unguarded space between the two vehicles, and hurled grenades into the open turrets. The muffled blasts shattered the tranquil night and plumes of fire shot out of the open turrets like the flick of a lighter in a darkened room. From inside each burning hulk came the sound of machine-gun fire as the heat cooked off rounds of ammunition. While most of the men were killed instantly, or died in the subsequent firefight, a few managed to escape and were quickly captured at gunpoint—one of the key aims of the ambush. The Iraqis then planted explosive booby traps around the burning vehicles, hoping to slow down any responding U.S. troops. “The attack was extremely bold,” said Major Robert Griggs, the group’s operations officer. “It really is amazing how good the enemy was.” 

Among the first to arrive after the attack was First Lieutenant Morgan Spring-Glace, who expected to find eight bodies. “No one thought there would be an abduction,” he said. Among the missing was nineteen-year old Byron W. Fouty, a private from Waterford, Michigan, who dropped out of high school, had trouble finding work, and joined the army as a last resort. “Maybe he thought by joining the army it was regular pay,” said Cathy Conger, the mother of one of Fouty’s close friends. Once in Iraq, however, Fouty quickly realized he had made a big mistake, especially after learning that his tour there had been extended from twelve months to fifteen months. “George W. Bush has decided that another 3 months in this [expletive] is worthwhile,” he wrote on his MySpace blog a month before the attack. “This pisses me off to a level I haven’t been in a long time.” He added, “Last June I decided to join the Army. Ha, another wrong turn.” 

Another missing soldier was Private First Class Joseph J. Anzack Jr. of Torrance, California. A high school football player with little interest in academics, he was gung ho to join the army soon after graduation. But like Fouty, he also quickly began developing second thoughts, which he expressed when he came home for Thanksgiving about six months before the attack. “He kept saying, ‘God, I don’t want to go back,’ ” said his aunt, Debbie Anzack. “It was going to another country, everything that was expected of him, the fact that people were trying to blow him up.” Finally there was Specialist Alex R. Jimenez, twenty-five, of Lawrence, Massachusetts, who as a boy played regularly with little green plastic soldiers and dreamed of joining the military. It was a dream he accomplished when he signed up with the army following high school in June 2002. 

In the days and weeks following the ambush and kidnapping, four thousand U.S. troops and two thousand Iraqi soldiers were mobilized for a massive door-busting dragnet throughout the region, with some houses being raided multiple times. Women and children were interrogated, thumb printed, and forced to submit to retinal scanning, while more than a thousand Iraqi men were detained for questioning. At the time, the government of Iraq was already holding at least twenty-four thousand prisoners, nearly all of whom had not been convicted of any crime or even had a trial. The United States was holding approximately twenty-six thousand prisoners under the same conditions.

Instead of finding cooperative residents, the battalion only found the body of one of the missing soldiers floating half naked in the Euphrates River, a few kilometers south of where the battle took place. The lifeless remains were those of Private First Class Joseph J. Anzack Jr., the high school football player from Torrance, California. In a posting on their website, the captors gave the reason for the attack. “You should remember what you have done to our sister Abeer in the same area,” it said. They also released a videotape that showed the military identification badges of the two missing soldiers, above which was Arabic script. “Bush is the reason for the loss of your prisoners,” it said. The voice then said, “After the three soldiers were alive as prisoners they became dead bodies.” The speaker also referred to the inability to obtain the bodies of their own dead from the U.S. military. “Because you disdain to give us the corpses of our dead,” he said, “so we will not give you the corpses of your dead, and their residence will be under the soil, God willing.”

As the six thousand U.S. and Iraqi troops pounded on doors and placed handcuff straps on hundreds of suspects, the NSA was also searching for anyone involved in the kidnappings. Immediately after receiving word of the capture on Saturday, May 12, the agency began focusing both regional and national intercept capabilities on the area. At NSA Georgia, all ears were on Mahmudiyah. By Sunday, intercept operators were beginning to develop a number of leads connected to the Islamic State of Iraq, and on Monday agency officials went to the F.I.S.A court and asked to amend an existing order—apparently adding I.S.I to a list of terror groups. Approval was granted within hours. 

A short time later, analysts came up with a list of names associated with I.S.I, including the name of one of the suspected kidnappers, a man who went by the moniker Abu Rus. Intelligence officials believed he had masterminded an earlier assault in the area and he was also a suspect in the downing of a U.S. helicopter in April 2006. Army general David H. Petraeus, the top U.S. commander in Iraq, would later confirm that the military had identified the person chiefly responsible for the abduction. “We know who that guy is,” he said. “He’s sort of an affiliate of al-Qaeda. He’s the big player down in that area. We’ve tangled with him before.” 

But targeting the suspects proved a problem. That spring, several F.I.S.A court judges reviewed the opinion of the friendly judge who ruled in the administration’s favor in January and came up with a very different interpretation. “We have to get an update every ninety days,” said McConnell. “Subsequent judges started to define it a little more narrowly.” In fact they rejected the earlier interpretation and insisted that a strict reading of F.I.S.A required an order, including a showing of probable cause, before the NSA could begin intercepting the I.S.I e-mail traffic. “Originally the court seemed to be complicit in what Bush and those guys were doing but then they got a ruling saying, knock it off,” said one senior intelligence official. 

It all had to do with location. At least some of the e-mail likely passed through U.S.-based I.S.P's, such as Yahoo or Gmail, triggering the statute. “So what we found is we were actually going backwards in our ability to conduct our surveillance,” McConnell complained, “which was requiring a warrant for a foreign target in a foreign country. And the issue was the wording of the law from ’78. If it touched a wire in the United States, we had to have a warrant. That was the basic issue.” 

A second problem stemmed from the fact that the actual intercept was conducted on U.S. soil, either at NSA Georgia or in one of the NSA’s secret telecom rooms. “Where we intercept the communications has become a very important part of the determination,” said McConnell. It was a section of F.I.S.A that was little noticed during the Cold War because nearly all of the NSA’s listening posts were located overseas, and thus unaffected by the restriction. But beginning in the mid-1990's under McConnell, most of the NSA’s foreign bases were closed and consolidated stateside in Georgia, Texas, Colorado, and Hawaii. Later, secret intercept rooms were established in domestic telecom facilities, such as the AT&T hub in San Francisco. 

Despite the unfavorable ruling, the F.I.S.A court gave the NSA a grace period of a few weeks. “We had a stay until the end of May,” said McConnell. After that, the agency was back to operating as it did pre-9/11. Thus, with every minute counting, attorneys in the NSA’s Office of General Counsel quickly began to put together an emergency F.I.S.A application. All that was required was the signature of the attorney general before the targeting could begin. The agency would then have three full days before it would be required to obtain a regular F.I.S.A order. At 10:00 a.m. on Tuesday, representatives from the NSA met with other intelligence officials to discuss how best to target the I.S.I suspects. Fifty-two minutes later, the agency formally notified Justice of its desire to begin the intercept operation. To the agency’s surprise, some of the names were already being surveilled under a preexisting F.I.S.A order. Finally, at 12:53 p.m., the NSA’s general counsel signed off on the emergency F.I.S.A request to begin targeting of the remaining names, certifying that all of the probable cause requirements had been met. 

But rather than quickly get the document signed and start the surveillance, Bush administration lawyers and intelligence officials spent the next four and a half hours debating and discussing how to go about it. Thus it was not until 5:15 p.m. that they began looking for a signature and by then key officials were out of reach. Attorney General Gonzales was in Texas addressing a United States attorneys’ conference and the solicitor general, who was then the acting attorney general, had already left for the day. Rather than call him back in, the decision was made to attempt to reach Gonzales in Texas. That mistake cost another two hours as the Justice Department’s command center called back and forth to the staff but were unable to actually speak to the attorney general. Finally, at 7:18 p.m., Gonzales authorized the emergency request and the FBI was immediately contacted. Ten minutes later, bureau officials notified the NSA and at 7:38 p.m. the names were placed on the watch list and the targeting finally began.

The system had descended into chaos, and this time lives depended on it. Because of the spring F.I.S.A court ruling “we lost about two-thirds of our capability,” complained McConnell. “We were in a situation where we couldn’t do our basic function of providing warning or alert to stop an attack.” This was because so much of the world’s communications— especially Internet traffic—passes through U.S. switches and routers. “If you were to look at a map of the world by bandwidth, it would show that the United States is the center of the world,” said McConnell. 

Then, once the new court ruling took effect on June 1, the agency had to begin performing a sort of triage on the intercepts. Massive amounts  were flowing in, but analysts were able to target only a small number because of the need to obtain a F.I.S.A order on those selected. “We were in extremis,” McConnell complained. “American soldiers were captured in Iraq by insurgents and we found ourselves in a position where we had to get a warrant to target the communications of the insurgents . . . What we did do was, as the numbers got smaller, we prioritized in a way that we kept the most important, the most threatening, on coverage. And we worked very quickly to try to catch up, and what we found is that there’s so much volume that we were falling further and further behind.”

Realizing the mess that was developing, a few months earlier the Bush administration had finally decided to go to Congress and seek to modify F.I.S.A,something they could have done at the very beginning. Six years earlier, following the 9/11 attacks, the administration could have simply and quickly updated the law with virtually no opposition. Instead, led by Cheney and Hayden, the White House came up with its super secret make-up-the-rules-as-you-go warrant less eavesdropping program. Now, more than half a decade later, the program was no longer secret because of the New York Times leaks,leaks driven by its illegal nature. At the same time, the war was in an upward death spiral, the president’s national ratings were below sea level, and Congress was in the hands of angry Democrats. It was a bad time to at last seek legislation, especially where much of it involved “trust us.”

“In his normal dick-measuring contest with Congress, Cheney’s big mantra was trying to reclaim executive power that he thinks the executive branch lost after Watergate,” said one senior intelligence official. “And so their whole thing was we don’t need your permission or your cooperation. He completely overplayed his hand, they painted themselves into this corner, and I would argue that they would ultimately get less out of this than they would have gotten if they brought Congress in early on. I would argue that they would have gotten more than they’re going to end up getting.” 

Immunity

Chosen as the administration’s chief lobbyist for the NSA eavesdropping program was the former NSA director and retired vice admiral Mike McConnell, now the newly appointed director of national intelligence (D.N.I). Born on July 26, 1943, in the foothills of the Blue Ridge Mountains in Greenville, South Carolina, McConnell was the son of a progressive textile worker who, in the 1930's, promoted union organization and civil rights. In the early 1960's he attended the local college, Furman University, where he slept in a closet in the school’s gym while managing the basketball team. After graduating with a degree in economics in 1966, during the war in Vietnam he joined the navy. “My father was in World War II, my uncles were in Korea,” McConnell said, “and so it was a war and it never entered my mind that I wouldn’t do anything other than what my family had done, which is to volunteer.” 

Shortly afterward, McConnell shipped off to Vietnam as a damage control officer on the USS Colleton, a ship attached to the Mobile Riverine Force in the Mekong Delta. A decade later, while assigned as the operations officer for the Fleet Ocean Surveillance Information Facility in Rota, Spain, in 1976, McConnell received his first initiation into the world of signals intelligence. “Four navy chiefs and one NSA civilian took me under their wing to teach me Sigint,” he recalled. “I learned as a young navy lieutenant that Sigint is hard; it is complex, esoteric, and difficult to understand over its depth and breadth . . . It changed my understanding, respect for, and use of Sigint for the rest of my professional life.” 

In 1992 McConnell was named director of the NSA, where he oversaw the downsizing of the agency at the start of the post–Cold War years. He also found that it was far easier to eavesdrop than to convert the intercepts into finished, usable intelligence. As always, code breaking—referred to as processing—was the hardest part. “I have three major problems,” McConnell was often heard declaring, “processing, processing, and processing.” He also got his first taste of the new world of communications. “When I went there, it was all wireless. We listened to people around the world. I left four years later, it was all wire.” 

After retiring from the NSA, McConnell became a senior vice president at Booz Allen Hamilton, where, during the war in Iraq, he pocketed $2 million a year selling intelligence and defense services to the Pentagon and the spy community. Among the company’s major contracts was a $63 million data mining operation for John Poindexter’s discredited Total Information Awareness program. 

Personable, soft-spoken, and courtly, with a mouth that seems constantly in a frown, McConnell has light-brown hair and a slight stoop when he walks. He took over as spy czar in February 2007. With the bulk of the intelligence work now being outsourced to private industry, it came as little surprise that Bush would choose an industry kingpin to run the intelligence community. But the driving force behind McConnell’s selection was actually Cheney, who needed a good salesman to push Congress into passing a weakened and watered-down F.I.S.A bill to the administration’s liking. The two had become close when Cheney was secretary of defense under the first President Bush and was responsible for McConnell’s appointment as NSA director. In his new job, McConnell had to change his sleep patterns. “I get up at 4:00 every morning,” he said. “I try to get to bed by 10:00 or 11:00 at the latest. And you do the math; that kind of makes it a full day. Why do I get up at 4:00? I have to brief the president at 7:30 to 8:00, six days a week.” 

McConnell argued against having a public debate on the issue of warrant less eavesdropping. Nevertheless, like Cheney and Bush, McConnell decided to use fear mongering as his principal marketing tool. During an address at his alma mater, Furman University in Greenville, South Carolina, for example, the D.N.I warned the students that a horde of Iraqi and Pakistani terrorists might be conspiring to wipe out their university and kill them all. “Today, terrorists in Pakistan . . . would like nothing more than to obliterate this campus,” he said. “If they’re planning with the terrorists in Iraq, more often than not, the communications will flow through the United States. So we’ve got foreign terrorists in Pakistan talking to a foreign terrorist in Iraq who wants to attack the members of this audience and a law said, ‘Mike McConnell, you can’t listen to that.’ ” 

Then following the kidnapping of the soldiers in Iraq, McConnell made the incident a part of the administration’s sales pitch to Congress. In closed session, he warned legislators that the NSA had lost precious time in the first critical hours—time that could have been spent looking for the suspects. “It took time,” he said, because of the F.I.S.A requirement, to demonstrate to the attorney general that the target was likely an agent of a foreign power. By the time the NSA obtained the legal permission for the tap, he said, it was no longer useful. “Some Americans are going to die,” he said, unless the administration got its way. 

The theme was then picked up and spread by the Republicans, who eventually convinced many in the public that F.I.S.A was responsible for the soldiers’ fate. “The intelligence community was forced to abandon our soldiers because of the law,” a senior congressional staffer told the New York Post. “How many lawyers does it take to rescue our soldiers?” he asked sarcastically. “It should be zero.” The family members of the kidnapped soldiers, understandably upset, also joined in. “This is terrible. If they would have acted sooner, maybe they would have found something out and been able to find my son,” said Alex Jimenez’s mother, Maria Duran. “Oh my God. I just keep asking myself, where is my son? What could have happened to him? . . . They should change the law, because God only knows what type of information they could have found during that time period.” 

But the reality was far different from the sales pitch. It wasn’t until 10:00 a.m. Tuesday morning, three days after the attack, that the NSA first began working on the paperwork for the emergency application and by 12:53 p.m. they were finished. All that was needed was the signature of the attorney general or the acting attorney general. According to Royce Lamberth, the former presiding judge of the F.I.S.A court, “The attorney general can immediately implement a surveillance by notifying the court.” But rather than get that done and begin the surveillance, the Justice Department wasted the afternoon talking about the issue, then couldn’t locate the acting attorney general, and spent another two hours trying to find Gonzales. Rather than blame the delay on the slow-moving Justice Department, however, McConnell argued to Congress that it was the new F.I.S.A requirement that was gumming up the works and risking the lives of American soldiers. 

The tactics worked. As members of Congress were racing for the door to start their August recess, the Bush administration was able to ramrod through both chambers a temporary F.I.S.A reform containing the changes they wanted. These included giving the NSA, for the first time, the authority to eavesdrop without a warrant not just on overseas targets calling or e-mailing into the country, but also on Americans communicating overseas, as long as the target is “a person reasonably believed to be located outside of the United States.” Thus, if a person in Chicago calls or e-mails someone in London, the NSA could now eavesdrop on that conversation or read that message without a warrant, as long as the agency’s target is the person in London. 

This was a substantial expansion of the law and basically stripped authority away from the F.I.S.A court by giving the attorney general and McConnell the power to approve international surveillance, rather than the eleven judges. The only role for the court would be to review and approve the procedures used by the NSA after the eavesdropping had been conducted. It would have no authority to examine the justification for the individual cases. The law also gave the Bush administration additional power to force the telecom industry to cooperate with such spying operations. The companies could now be compelled to cooperate by orders from the attorney general and McConnell. 

The Protect America Act was passed during a Saturday session on August 4 but not signed into law by President Bush until the next morning. At that point, the NSA raced to get back up to speed. “It actually took us about five days to get it all done,” said McConnell, “because there were new procedures, and we had to be very careful, so we had the highest priority on coverage, and then it took us about five days or so get back to where we were in January.” 

Ironically, it turned out that the changes in F.I.S.A apparently had nothing to do with the search for the missing soldiers. The kidnapping took place on May 12 and the new interpretation of the law didn’t go into effect until June 1. Also, according to Colonel Michael Kershaw, one of the regional commanders in Iraq who helped lead the search, the key suspect involved and the initial target of the NSA’s search, Abu Rus, was quickly captured, and it turned out that he had nothing to do with the kidnapping. “The terrorist that really had led the attack against our predecessor unit,” said Kershaw, “we detained him about three weeks after the attack on our soldiers. We went after his group immediately and were able to capture him. But the information that we found that was associated with him led us to believe that he was not involved directly in the attack on our soldiers.” 

Nevertheless, the scare tactics worked and the bill was passed—but only as a placeholder until permanent legislation could be debated and enacted. Thus it was set to self-destruct in just six months, at midnight on Saturday, February 16. As the date approached, the Senate complied fully and passed the administration’s bill, complete with immunity from prosecution for the telecoms that assisted with the warrant less eavesdropping program. “Under the president’s program, the terrorist surveillance program,” McConnell acknowledged, “the private sector had assisted us. Because if you’re going to get access you’ve got to have a partner.” The House, however, showed signs of balking. Many members had been severely criticized for running out of town in August instead of fighting against the Protect America Act and now they were going to take their time. The House asked for a three-week extension of the act so it could study the Senate bill, but the White House said it would veto any such extension, despite the claim that the country would be in mortal danger if the legislation expired. 

The key issue was immunity for the telecoms, which the House had refused to put in its version of the bill—the Restore Act—and they weren’t budging, despite the fact that it was approved by the Senate. Many believed that the issue needed to be settled in the courts, not on Capitol Hill, and it was also an issue important for a number of Democratic support groups. “The House should stand up to the bullying from the president and reject the administration’s lies and fear mongering,” said Caroline Fredrickson, director of the American Civil Liberties Union’s legislative office in Washington. “Let the American system of justice decide this case. Do not give the phone companies a ‘get out of jail free’ card. If the companies really ‘did the right thing’ as the president said, then they have nothing to fear from going to court.” She added, “Terrorism is a threat. But ignoring the Constitution is also a threat.” 

At the White House, the anger and frustration was growing. On Thursday, two days before the deadline, President Bush said he would delay his planned five-nation tour of Africa to continue pressuring the House over the immunity issue. “If these companies are subjected to lawsuits that could cost them billions of dollars, they won’t participate, they won’t help us, they won’t help protect America,” Bush said. He then continued his fearsome warnings. “At this moment, somewhere in the world, terrorists are planning new attacks on our country. Their goal is to bring destruction to our shores that will make September the 11th pale by comparison.” He added, “There is really no excuse for letting this critical legislation expire.” Nevertheless, as in a high-stakes game of poker, he again refused to agree to a three-week extension, insisting on an up-or-down vote before the expiration of the deadline. 

As the administration’s fear mongering escalated, a number of national security experts, including some who had served in the Bush administration, publicly challenged the allegations. Among them was Richard Clarke, the former head of counter terrorism at the National Security Council under Bush; Rand Beers, the former senior director for combating terrorism at the National Security Council during the Bush administration; Lieutenant General Don Kerrick, former deputy national security adviser; and Suzanne Spaulding, the former assistant general counsel at the CIA. All had worked with McConnell in the past. Nevertheless, they wrote that McConnell and the Bush administration were distorting the truth about NSA surveillance capabilities after the Protect America Act expired. “The sunset of the Protect America Act (PAA) does not put America at greater risk,” they wrote. “The intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication.” 

They also rejected the administration’s claim that it was crucial to national security that the telecoms receive retroactive immunity. “Telecommunications companies will continue to cooperate with lawful government requests, particularly since F.I.S.A orders legally compel cooperation with the government. Again, it is unclear to us that the immunity debate will affect our surveillance capabilities . . . The Administration has made it clear it believes this entire debate hinges on liability protection. As previously stated, it is unclear that liability protection would significantly improve our surveillance capabilities. It is wrong to make this one issue an immovable impediment to Congress passing strong legislation to protect the American people.”

Finally, at midnight on Saturday, February 16, 2008, the law expired. Thus, six and a half years after Cheney and Hayden secretly took NSA off course, sending its reputation—and Americans’ trust in the agency— plunging, and possibly violating the law and the Constitution, they were back to square one. “We have to work the dark side, if you will,” Cheney had said back then. “Spend time in the shadows . . .” 

But with the elections coming up and Democrats worried about being labeled weak on national security, the Bush administration largely got its way on July 9 when the Senate went along with the House and passed the F.I.S.A Amendments Act. The new law provides what amounts to legal immunity to the telecoms, weakens the authority of the F.I.S.A court, and gives freer range to NSA in targeting suspected terrorists abroad. 

To end the more than forty lawsuits brought against them by public interest groups, the telecoms need only to show a federal judge that they received written assurance from the Bush administration that the eavesdropping was legal, which is basically a formality. Although the NSA will still have to obtain a F.I.S.A order to target Americans, they can now target foreigners outside the country simply by submitting to the court a list of suspected terrorist groups rather than individual names. It will be up to NSA shift supervisors to determine who is a member of the group. But in a significant concession, Americans abroad now come under the protection of the F.I.S.A court for the first time. Previously, all that was needed to eavesdrop on Americans outside the country was the permission of the attorney general; now to listen in on Americans overseas the NSA will have to obtain a F.I.S.A order. 

The vote was seen as both a win for the Bush administration and a litmus test for Senator Barack Obama, the Democratic candidate for president. Although Senator John McCain had long supported the bill, but never bothered to vote on it, Obama had long opposed it and at one point even threatened a filibuster. But as the date for the vote approached, Obama said he would support the legislation, causing uproar among his most ardent followers—more than seven thousand of whom expressed their frustration on his own Web site and called for him to reverse his decision. “I have watched your campaign with genuine enthusiasm,” wrote Robert Arellano, “and I have given you money. For the first time in my life, I have sensed the presence of a presidential candidate who might actually bring some meaningful change to the corrupt cesspool of national politics. But your about-face on the FISA bill genuinely angers and alarms me.” 

Despite the protest, Obama voted in favor of the bill. His only concession was a vow, if elected, to have his attorney general do a fresh review of the NSA’s eavesdropping activities. “Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, I’ve chosen to support the current compromise,” he said. “I do so with the firm intention—once I’m sworn in as president—to have my attorney general conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.” 

And so the post-9/11 battle for civil liberties is lost with a promise that the war will continue behind the scenes of another president’s administration. It is ironic, for if there is a lesson of the F.I.S.A Amendments Act, it is that presidential power is abundant; it is political courage that is in short supply. 

next Book 5

Future 

 

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