The Family Jewels (15 page)

For his second term President Bush elevated Alberto Gonzales to attorney general, replacing the departed Ashcroft. In moving to the Justice Department, Gonzales took with him the notes he had made of that contentious meeting with the congressional leaders, scribbled in a spiral notebook a few days later, after Bush spoke to Comey and then instructed
Gonzales to make a record. Gonzales took the notes home in his briefcase and kept them there for an undisclosed interval. Later he brought them back to work, and placed the papers in a private safe outside his office rather than in secure storage at the Justice Command Center, required for a document that noted operational aspects of the TSP as well as its classified code name. This was not an inadvertent act—Mr. Gonzales was found to have mishandled seventeen other documents as well. Highlighting the dangers of disclosure, at one point officials responding to an FOIA request searched that safe paper by paper. When called to testify before Congress on the eavesdropping, Gonzales gave rather opaque testimony. Legislators also subpoenaed the program certifications and accompanying Justice Department memos. These were held by Vice President Cheney, who claimed executive privilege for them and denied the summons in toto. “This program is one of the things of which I am proudest,” Cheney writes. “If I had it to do over again, I would, in a heartbeat.”
⁴⁷

Then there is the Foreign Intelligence Surveillance Court, empaneled specifically to deal with these kinds of questions. It too was, and is, extremely compliant. At last report there have been nineteen thousand executive requests for surveillance warrants since the 1970s, with only those four rejections already noted. Put differently,
no
Bush administration demand for a warrant was ever rejected. By one count this FISA eavesdropping has aimed at seven thousand foreigners and five hundred Americans.
⁴⁸
The Court tried to
modify
two warrants, which the administration appealed and won in both cases. Despite this degree of cooperation, and the system's smooth functioning for many years, Bush officials not only demanded warrantless eavesdropping, refusing to take TSP cases to the Court, but rejected briefing it on the program. Only the chief judge was informed, and not until
January 2002, roughly during the TSP's
third
reauthorization period. Later, a chief judge of the Court resigned in protest of the administration's manifest arrogance.

That action became just another hiccup in this sorry story. Starting with the Patriot Act, the Bush administration repeatedly sought and obtained amendments to FISA, to the point where it tried to eliminate most standards for granting warrants. In a bloody political fight in 2007, the administration secured fresh amendments to permit warrantless interception on persons merely thought to be outside the United States who could be construed in some way as being of interest to intelligence investigators. The information collected could be retained for up to a year without referral to the Court.

Technical aspects of surveillance operations add to the worry that a Family Jewel exists here. As everyone knows from dealing with the Internet, it is not at all difficult for hackers to penetrate messages, and Fort Meade has some of the best hackers around. A huge proportion (90 percent) of Internet traffic passed over fiber optic cables accessible to the NSA. The cable aspect was discomfiting from the legal side because FISA provisions defined “transmission by wire” as the point where warrants became necessary (the essence of 1970s “wiretapping”), but the cables posed no technical impediment to NSA experts, and the legal restrictions were dismantled by amendments. Wireless communications are even easier to penetrate, and technology has favored the codebreakers because, since the dawn of the intercept program, more and more communications—both Internet and telephone—have moved to radio transmission. Fort Meade has pretty much been free to intercept wireless since the beginning of eavesdropping.

Reportedly the NSA merely collected information from the “externals” of communications—the emitting and receiving addresses, the titles of e-mails, their timing, and so on.
But under current conditions it is difficult to associate a device with a particular person, or more specifically, to identify his or her citizenship. This reduces the possibility of excluding, a priori, communications purely between American nationals. To perform electronic surveillance
aimed at foreign targets
, gathering everything is necessary, including Americans' messages.

In addition, the old NSA “minimization” rule—that one end of a communication had to be abroad—is increasingly less reflective of reality. Not only are there many computer servers so located—a ready-made excuse for intercepting Americans' transmissions—but until recently the vast majority of all
foreign
traffic at some point transits servers in the United States. This feature, facilitating NSA access to foreign traffic, unfortunately also means that Fort Meade's operators routinely data-mine transmissions across servers moving Americans' messages. As long ago as Project Minaret, the NSA already had computer software that could key on specific words, then pull down the contents of phone calls containing them. This technology is so widely distributed today that hackers use it. The story of what happened in the donation of the personal papers of former CIA officer Phil Agee (
Chapter 8
) demonstrates that in fact the NSA
is
reading beyond the externals. In summary, there are purely technical reasons to expect that the Terrorist Surveillance Program and its adjuncts, once investigated, will be found to involve the same kinds of domestic intrusion as those of the Vietnam era, ones that were ruled illegal in the courts and against which law was enacted.

Mail surveillance, whether or not one accepts that it represented the 1960s version of today's warrantless electronic intercepts, was a chilling activity. Today the Terrorist Surveillance Program holds Americans' attention. Very
few are aware that on December 20, 2006, President Bush attached a “signing statement” to his approval of a Post Office reform bill asserting that the U.S. government “shall construe” a section of that law to permit the opening of mail—to protect life, guard against hazardous materials, or conduct “physical searches specifically authorized by law for foreign intelligence collection.”
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Years after the bad old days of Vietnam, the Bush administration arrogated to itself the power to carry out illegal activities that were an acknowledged Family Jewel, claiming them authorized by “law” that consists entirely of a statement made by the president.

That little detail in a sense completes this cycle. Intelligence operatives believe in product. Projects are initiated to obtain that product, information. In a democracy those projects can infringe on the rights of citizens. The hard thing is to guard the rights of citizens while providing for the requisite intelligence. There is a balance to be struck, but the need to do that is obstructed by the operational logic of intelligence. In the clandestine world, it is frequently the case that collection projects fall short. Few—though with significant exceptions—prove to be the gold mines their advocates promise at the moment of approval. So intelligence officers fall back on the formula that they collect small pieces that someday might solve a big puzzle. At the same time, they expand collection, which often turns it to purposes other than the original ones. If that happens to magnify the threat to individual rights, the intelligence mavens would prefer that the public not know.

This is not a coincidental development: it is a cycle, a pattern. The CIA's Project Lingual turned into a vehicle used against political dissent, was thoroughly defrocked, and three decades later the specter of mail-opening is revived. The NSA's Project Minaret, also aimed at political dissent, was specifically outlawed. The Terrorist Surveillance Program overrode those controls, and it, too, expanded. How far TSP
went remains shrouded in secrecy. Insiders in the 1970s recognized such programs as Family Jewels. They still are.

As for the particular collection efforts surveyed, at the end of the day Richard Helms bears direct and substantial responsibility for the CIA abuse in Project Lingual. Helms not only approved James Angleton's proposals for the mail-opening, he rode shotgun thereafter—backing expansions, turning aside complaints, keeping a weather eye for outside challenges, intervening with Cabinet officers when the project came under fire, and ordering measures to reduce visibility—and flap potential—all the while pushing for action. And all of this in service of something CIA acknowledged as illegal from the start. Helms's superiors failed to act when questions were raised, and he himself championed an effort that yielded minimal results in a context where the flap potential remained astronomical throughout.

Even if the original aim of catching Russian spies is seen as legitimate, the failure to fully air the ramifications of mail-opening outside the CIA, and to seek a conscious authorization by the president, ensured it remained a booby trap waiting to explode. Every boundary was exceeded when Lingual began to surveil Americans. By then Helms was the CIA director and ought to have shut it down forthwith. Instead he continued Lingual and linked it with other CIA efforts to monitor American dissenters. In short, Richard Helms encouraged abuse. This puts a stark light on his implied threat to President Ford, when the CIA domestic activities were revealed, that he would defend himself by letting all the “cats” out of their cages. Indeed, there were many. This is one reason the original Family Jewels were so explosive.

With the National Security Agency projects, there is no simple thread of responsibility. Shamrock started early, continued a very long time, and appears never to have undergone significant scrutiny. No doubt the take was much greater than from the CIA's mail-opening, and officials were enamored
with communications intelligence following the successes of World War II, but this enterprise, too, was illegal. Private corporations were repeatedly given assurances their cooperation carried no criminal liability—promises that were probably also illegal. The NSA's effort to put a statutory foundation underneath Shamrock in a 1968 law was thrown out in court. Meanwhile, Project Minaret had already begun, and widened the security agency's culpability. Fort Meade's codebreakers were lucky in 1975 that the CIA and FBI attracted so much public attention, but nevertheless NSA methods were to be explicitly proscribed by law.

The jury must remain out on the Bush administration Family Jewel until the Terrorist Surveillance Program is finally reviewed in a systematic fashion. But from what appears so far, it seems the TSP story is one of systematic effort to evade existing strictures. Dick Cheney's fingerprints on this are at least as prominent as those of Helms on the mail-opening. But the roles of White House attorney Alberto Gonzales and DOJ official John Yoo, as well as those of NSA personnel, were also significant. On electronic surveillance Bush officials continue to enjoy the benefits of secrecy—and therein lies an important reminder: secrecy serves not just to protect national security but also to hide abuse. And abuses damage national security. The truth is that national security is also served by limiting secrecy. Just how abuse has flourished in the dark—and what damage can be caused by secrecy—are evident in the case of CIA detention and interrogation programs, where evidence has emerged that puts the iceberg in plain view.

5

DETENTION AND INTERROGATION

The story of Yuri Ivanovich Nosenko appears in the original Family Jewels in a single paragraph of Howard Osborn's cover memo and a short paper of slightly more than one page. For Americans today, indeed for a world concerned about CIA “black prisons” and aggressive interrogation methods (read: torture), this tiny fragment cloaks a huge story. Even for the Central Intelligence Agency of the 1960s, the Family Jewels documents afforded barely minimal coverage of an issue that put the CIA beyond the borders of legality. Equally disturbing, the sparse Family Jewels text hid internal warfare that nearly tore the agency apart. As with the war on terror, the central focus of this fight was counterintelligence—finding out about the bad guys and their plans—a necessary function, but one highly susceptible to abuse.

Yuri Nosenko was a Russian spy, or, more properly, an officer of the Soviet intelligence service KGB. After initially approaching the CIA in Geneva in early 1962, Nosenko defected, again in Geneva, in February 1964. Coming in the immediate aftermath of the Kennedy assassination, Nosenko's was an important defection, because he claimed to have been a senior officer in the KGB directorate responsible for
working against Americans in Russia, and therefore knowledgeable about Kennedy's presumptive assassin, Lee Harvey Oswald, who had spent two and a half years living there under the KGB's gaze. There was also the question of what Nosenko might know about possible Soviet spies inside the CIA.

After a short period of simple debriefing, Nosenko's CIA handlers subjected him to more than three years of hostile interrogation. This amounted to CIA operating inside the United States, and to the agency exercising police powers by incarcerating an individual—both violations of the agency's charter and the reason why the Nosenko affair appears in the Family Jewels documents. The Central Intelligence Agency's creation of a secret prison on American soil, and its interrogation techniques, resonate with a public now faced with the conundrums of the “war on terror.”

Some background will help in understanding the Nosenko affair. Defector Yuri Nosenko, first known by the cryptonym AE/Foxtrot, appeared in the midst of agency fears of a spy in its own ranks, a mole hunted by CIA counterintelligence chief James J. Angleton. The climate was heavily influenced by a previous KGB defector, Anatoli Golitsyn, whose information helped identify several Russian agents in England and nail down the culpability of the KGB's British spy Kim Philby. Golitsyn went so far as to charge that the KGB had a “Monster Plot” under which much that happened in the world—right down to the Sino-Soviet split—formed part of a grand design intended to deceive the West. Angleton fell under Golitsyn's spell and permitted the KGB defector to read CIA case files. Robert de Niro's 2004 movie
The Good Shepherd
contains a sharply edged, fictionalized portrayal of this relationship. Where certain officials considered the Russian a provocateur, Angleton followed Golitsyn's suggestions, initiating security investigations that wrecked the careers
of a number of highly capable CIA officers. Golitsyn insisted the KGB would try and discredit him by sending false defectors. He feared Nosenko. Angleton played Golitsyn's game there too.