The Family Jewels (14 page)

General Hayden went to George J. Tenet, the Director of Central Intelligence, to say he needed fresh orders. About the same time, Vice President Dick Cheney asked Tenet if the National Security Agency could do more. Tenet and Hayden then went to see Cheney, and the vice president took their message to President George W. Bush. The chief executive convened both officials in the Oval Office. General Hayden told Bush the nation was “flying blind without a warning system.” He wanted a setup to monitor communications into and out of the United States without FISA warrants. President Bush was ready for that. By his account he asked presidential counsel Alberto Gonzales and the Department of Justice whether he could properly authorize such a measure. Both replied in the affirmative.
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On October 4, 2001, Bush approved the aggressive NSA eavesdropping known as the “Terrorist Surveillance Program,” one far beyond Project Minaret. Later Bush okayed even more activities, all highly
classified. The surviving restriction was that one side of a call be outside the United States.

Meanwhile, General Hayden told a congressional committee that he was interpreting his original authorities aggressively, then clammed up. When Representative Nancy Pelosi, a California Democrat who was then chairwoman of the House Permanent Select Committee on Intelligence, wondered what Fort Meade was up to, and set her staff to find out, the codebreakers stood mute. Pelosi and Hayden exchanged letters. The NSA chief simply reiterated his original comment. In early October, Hayden assembled top staff at Fort Meade, informed them of the new surveillance regime, and emphasized the need to move forward, with an appropriate genuflection to privacy rights.

That marked the beginning of what has already been more than a decade of intensive NSA eavesdropping on Americans and others, the details of which remain largely masked. The surveillance must inevitably vacuum up huge amounts of data on Americans—much more than in Vietnam days. Some estimates of the number of messages stored in NSA computers rise to the tens of
trillions
. Though unknown even now, the way these projects have been shielded, the zealousness with which the executive sought to avoid inquiry, the several instances in which the tips of these icebergs have surfaced, and the (not secret) technological processes through which this kind of electronic monitoring functions, give good reasons to suspect that the Terrorist Surveillance Program (TSP) shields a massive intrusion into Americans' lives. The TSP is very likely one of today's Family Jewels.

Consider first the quality of executive branch interaction with the congressional committees that oversee U.S. intelligence. Unlike in the Vietnam era, today a system of oversight committees—established precisely as a result of the Year of Intelligence—exists to monitor the clandestine agencies. Under established regulations, the overseers are supposed
to be kept fully and currently informed on every significant secret activity. But Bush officials attempted to hide the Terrorist Surveillance Program. “This program was too important and too highly classified for briefings to the whole committees,” Dick Cheney contends, “which, given the rotations of members into those slots [on the oversight panels], would have resulted in dozens being briefed.”
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Vice President Cheney's objections are misleading. The members of those units have been cleared for every aspect of the intelligence business. The impression the vice president gives of turnover on the panels is exaggerated, and their function was specifically to monitor
all
government activities.

The maneuver to keep electronic surveillance out of the oversight arena was based on a 1983 executive order under which President Ronald Reagan governed U.S. intelligence. The Reagan order defined “special activities”—long a euphemism for communications intelligence and covert operations. The loophole emerged when the executive and Congress, wrangling in the wake of Reagan's Iran-Contra affair, agreed that knowledge of the most sensitive operations could be restricted to a “Gang of Four” (the chairmen and vice-chairmen of both houses' intelligence committees) rather than being shared with the full committees. The second Bush administration handled the eavesdropping that way. Thus, George Tenet makes a point of noting that “senior congressional leaders” were called to the White House and informed within a couple of weeks of TSP's inception, and that a dozen such meetings (seventeen actually) were hosted by Vice President Cheney, usually in his West Wing office, before the program leaked. But the Gang of Four were sworn to silence, and no one else knew. “Oversight” became impossible.

Meanwhile, an important feature of the Bush administration's goal in obtaining the USA Patriot Act was to secure provisions to legalize this eavesdropping, approved without Congress being able to consider its classified realities. The
administration obtained this legislation in the heat of 9/11, receiving congressional approval in October 2001. Richard Cheney, darkly hinting that opponents of the legislation would be aiding and abetting terrorism, stoked the frenzy in which this law passed within hours of its appearance on the floor. Most members of Congress did not even know the Terrorist Surveillance Program existed, and the congressional vote took place two days
before
the Four were first briefed on it. The president signed the law the same day the senior legislators were informed.

That marked the onset of a high-handed approach in this matter heartily encouraged by the vice president. But despite the administration's best efforts to shield the program in a compartment above Top Secret, as with the original Family Jewels it is inevitable that secret operations become known, in particular where they involve controversial elements. In due course the White House discovered the
New York Times
had the story and pressured the newspaper to spike it. Editors did respond, holding James Risen's story for more than a year. The TSP was revealed in Risen's December 16, 2005,
Times
article. President Bush confirmed its existence. At that point Bush officials hastened to claim the sleuthing had been under proper oversight all along, asserting that Congress had been briefed on it thirty times (the correct figure is given above). But almost all those briefings, by the Bush administration's own listing, had been of the Gang of Four only, so secret that both rank-and-file overseers and the gang's own staffs remained in ignorance. In 2003, when one of the Four, West Virginia Senator Jay Rockefeller IV, wrote Vice President Cheney to complain about certain aspects of the TSP, including the administration's neglect of its duty to inform the full oversight committees, Rockefeller had had to put his letter in longhand, because no one in his office had the requisite security clearances to type it.

The administration's attitude is more clearly revealed in what happened in the immediate aftermath of the revelation. Predictably, the House Permanent Select Committee on Intelligence asked for a full briefing on the eavesdropping and scheduled a secret hearing to receive General Hayden's testimony. That had to be canceled when White House chief of staff Andy Card forbade Hayden's appearance.

Secrecy did not only apply to Congress. On January 23, 2006, Hayden appeared at the National Press Club for a speech specifically regarding what the NSA had been doing to protect the nation. Of the Terrorist Surveillance Program Hayden said, “That authorization was based on an intelligence community assessment of a serious and continuing threat to the homeland. The lawfulness of the actual authorization was reviewed by lawyers at the Department of Justice and the White House and was approved by the attorney general.” General Hayden added that he had asked the three most senior lawyers at NSA for a further review and they had also come out in its favor—“Supported, not acquiesced,” was Hayden's language.
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Several of General Hayden's assertions to the American public were inaccurate or misleading. Within the administration, TSP measures were initially screened only by NSA lawyers, then passed to the White House. Fort Meade's experts spoke to General Hayden, who worked in tandem with Cheney attorney David S. Addington and presidential counsel Alberto R. Gonzales. At the Department of Justice (DOJ), only John Yoo was read into the program. According to later investigation by the inspectors general of a range of agencies, including DOJ, CIA, and the NSA—and contrary to both Hayden's and Mr. Bush's versions of this story—Yoo prepared his analysis
after
the program was in place. In keeping with his other opinions, Yoo based this one on an unrestrained reading of presidential power. Superiors learned of
Yoo's work from reading about it in the newspapers, years later. At the White House, however, his paper was represented as the official Justice Department position.

No other Justice legal expert looked at the Yoo paper until late 2003, and then DOJ officials found serious flaws in his arguments. Presidential counsel Gonzales asked DOJ to supply a memorandum agreeing the agency had operated within the law. The White House considered it important to obtain a retroactive approval, much like the controversial “retroactive” covert action finding that figured in the Iran-Contra affair. Similarly, vice-presidential counsel Addington challenged Deputy Attorney General James Comey to examine all of Yoo's opinions and declare which ones Justice still supported.

The TSP's electronic eavesdropping was sensitive enough that, even with the sweeping orders Bush had given the NSA, he needed to recertify it every forty-five days. Each request was accompanied by a report on current activity and on what had been learned during the last period. By 2004, the National Security Agency wanted to widen its collection effort with the next reauthorization. According to press reports, the NSA sought to add a broad data mining feature to its basic interception operation.
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This led to a crisis. James Comey informed the White House that Justice could not approve continuance. At another meeting—with the legal authority due to expire on March 11—Vice President Cheney thundered that Comey would be endangering “thousands” of lives if DOJ did not comply. President Bush ordered an emergency briefing for the Gang of Eight (the Four plus the senior congressional leadership). There congressional leaders raised serious objections. Inside the White House, Alberto Gonzales represented the Gang of Eight as having approved.
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Dick Cheney also asserts in his memoir, “It was unanimous: Every member agreed that [TSP] should continue.”
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The day had come when it was necessary to secure
Attorney General Ashcroft's approval, or at least his acquiescence. Gonzales and Addington viewed this as superfluous. Cheney maintains that Ashcroft had already approved the program twenty times, and that the DOJ objection, from inexperienced people, was merely to one aspect of collection. At that moment Ashcroft was at George Washington University Hospital being treated for pancreatitis. On March 10 White House officials tried to induce Ashcroft to sign off from his hospital bed. He had been in intensive care for a week, without food or drink, and was grouchy. Alberto Gonzales, Bush chief of staff Andrew Card, and David Addington appeared at his bedside and demanded Ashcroft's signature. No slouch when it came to aggressive security measures—he had approved the dubious FBI “national security letters”—Ashcroft recognized a legal morass when he saw one. He refused. Ashcroft delegated his authority to Jim Comey. The latter had rushed to the hospital too, when he learned the Gonzales group was headed there, and told the attorney general he would resign if DOJ agreed. Actually
eight
senior officials at Justice were in revolt, ready to leave as well. So was FBI chief Robert Mueller. Cheney later blocked the promotion of one of the DOJ officials who had objected to the shaky legal foundation for this surveillance.

The White House went ahead with reauthorization, substituting Alberto Gonzales's approval for that of the attorney general. This meant relying upon a personal aide with no institutional authority whatever in place of the nation's top legal official. The Gonzales paper asserted, according to the joint inspectors general, that DOJ's earlier approvals were valid (despite being based on inaccurate information). Deputy Attorney General Comey learned this at the White House the next day, when Bush signed the certification. Afterwards Comey buttonholed NSC counterterrorism specialist Fran Townsend in the hallway, the six-foot, eight-inch lawyer towering over the diminutive staffer. Comey began
to explain, but Townsend was not cleared for the program and did not recognize the code word he used. She stopped Comey, then went to national security advisor Condoleezza Rice and alerted her. “I had known Comey as an attorney who had earned a distinguished record as a New York prosecutor,” Rice relates. “If he was reaching out to someone who might not have been read into the program, it was clear to me that something must be wrong.”
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Condi Rice went to President Bush on March 12 and recommended he speak to Comey. The two met in the Oval Office for fifteen minutes. Rice reports that White House attorneys had been aware of the misgivings at Justice for weeks, but had not told Bush until the morning he was to sign the reauthorization—and then the president faced the dilemma of whether to approve or halt the entire TSP in its tracks.

After meeting with Comey, President Bush ordered that the NSA eavesdropping be modified to meet the Justice Department objections. Justice would rework its legal opinion on that basis. Vice President Cheney minimizes this crisis, claiming the dispute centered on one small element in a huge operation. He also asserts that Ashcroft had told Bush he would approve and then reversed himself. But the entire top echelon of officials at the Department of Justice plus the director of the FBI were prepared to resign over this. The issue had to be more than a tiny cog in the machine. On March 23 James Comey and Dick Cheney met privately. Justice approved a fresh paper. This episode of controversy demonstrates the White House's determination to pursue its invasive surveillance program.