The Secret Sentry (45 page)

But to date, the only arrest of an al Qaeda terrorist in the United States that the NSA warrantless eavesdropping program
supposedly was involved in was that of Iyman Faris, a thirty-eight-year-old truck driver in Columbus, Ohio, who was caught
in March 2003 planning to destroy the Brooklyn Bridge, in New York City. A native of Pakistan but a naturalized American citizen,
Faris pleaded guilty to helping al Qaeda plan terrorist attacks in the United States and in October 2003 was sentenced to
twenty years in prison.
²¹

Former U.S. intelligence officials have confirmed that Faris was identified as an al Qaeda “sleeper” based largely on data
provided by NSA. The trail that led to him began just before dawn on January 9, 2003, when Pakistani police stormed a house
in the upscale Karachi suburb of Gulshan-i-Maymar that belonged to a senior member of Jamaat-i-Islami, a Pakistani radical
Islamic organization. The occupants of the apartment threw two hand grenades at the police. One went off harmlessly. The other
failed to detonate because the man who threw it forgot to pull the pin. After a brief struggle, the police arrested and hustled
away for interrogation two men— an Egyptian and a Yemeni. Under interrogation, both men admitted to being former al Qaeda
fighters in Afghanistan who had fled to Pakistan after the U.S. invasion of that country. CIA and FBI officials who participated
in the interrogations of both men in Karachi identified the Egyptian, who told the police his name was Abu Umar, as a senior
deputy to Ayman al-Zawahiri, Osama bin Laden’s Egyptian-born deputy. The assault on the apartment had resulted from NSA’s
intercepting satellite phone calls coming into the apartment from al Qaeda operatives throughout the Middle East. Seized in
the raid were more than thirty thousand dollars in cash and Abu Umar’s satellite phone, which, when its data was downloaded,
proved to be a treasure trove of intelligence for the CIA.
²²

From the calling data contained in the phone’s memory, NSA was able to determine that a senior al Qaeda leader was operating
somewhere in the vicinity of the Pakistani city of Rawalpindi. In February 2003, intercepted e-mails and satellite telephone
communications led U.S. and Pakistani security officials to the hideout in Rawalpindi of the al Qaeda mastermind of the 9/11
attacks, Khalid Sheikh Mohammed. At four a.m. on March 1, heavily armed Pakistani security forces burst into Mohammed’s hideout
and arrested him and another key al Qaeda operative, Mohammed Ahmed al-Hawsawi. A former NSA intelligence analyst confirmed
that Faris was identified as an al Qaeda sleeper in the United States based on data downloaded from Khalid Sheikh Mohammed’s
cell phone and laptop computer seized in the raid.
²³

Despite the identification and arrest of Faris, a number of former U.S. intelligence officials disagree with statements emanating
from the White House about the “vital importance” of the NSA warrantless eavesdropping program, believing that these statements
grossly overstate its actual accomplishments.

Details are admittedly lacking, but a few former intelligence analysts have hinted that the program has been useful in helping
stop a number of terrorist attacks overseas, but there appears to be little evidence of major successes against al Qaeda or
other terrorist organizations inside the United States since 9/11. When asked for his impression of the value of the eavesdropping
program, a recently retired senior CIA official stated, “We spent a ton on the [NSA] program, but got back very little in
the way of solid returns . . . I don’t think it was worth the money.”
²⁴

Then there is the equally contentious issue of what role America’s largest telecommunications companies played in assisting
NSA. The first hint that these companies had assisted the agency’s warrantless eavesdropping effort appeared in a follow-up
December 2005
Times
article by Eric Lichtblau and James Risen, which reported that “the NSA has gained the cooperation of American telecommunications
companies to obtain backdoor access to streams of domes-tic and international communications.” According to the article, this
vast pipeline of raw telephone and e-mail data was being systematically combed by NSA analysts using the agency’s data-mining
software “in search of patterns that might point to terrorism suspects.”
²⁵

In May 2006, the next bombshell hit when
USA Today
revealed that a number of the largest American telecommunications companies, including AT&T, MCI, and Sprint, had closely
collaborated with NSA in the warrantless eavesdropping program. Only Qwest, the nation’s fourth-largest telecommunications
company, had refused to participate in the program, despite repeated requests by NSA. At about the same time, an AT&T technician
revealed that the telecommunications giant he worked for had allowed NSA to place eavesdropping equipment inside its network
switching centers in San Francisco and Atlanta, through which much of America and the world’s e-mail traffic passes. This
may, in fact, be the tip of the iceberg, since a number of key American telecommunications companies other than AT&T have
refused to answer questions from reporters about whether they too cooperated with NSA’s domestic eavesdropping effort.
²⁶

Of what little is definitively known about what the telecommunications companies did on behalf of NSA is that they refused
to cooperate without a letter from the U.S. Justice Department assuring them that their efforts on behalf of NSA were proper
and legal. This exact situation had played out fifty-six years earlier when, in August 1945, NSA’s predecessor, the Army Security
Agency, asked America’s “Big Three” cable companies to give it access to all international telegraph traffic coming in and
out of the United States as part of a Top Secret program called Shamrock. The U.S. Army knew from the outset that the program
was highly illegal and dangerous, but senior military officials concluded that the risks were worth it to get at the raw traffic.
²⁷
Under extraordinary pressure from Washington, the cable companies reluctantly agreed to cooperate, but only if the U.S. government
would immunize them against any civil or criminal actions if the operation was uncovered. But back then, the U.S. government
could find no way to give the companies the legal protection they were demanding without new legislation, which would have
required telling Congress what they were up.
²⁸

But unlike this Cold War attempt at domestic eavesdropping, the telecommunications companies this time got what they wanted.
Assistant Attorney General Kenneth Wainstein, testifying before Congress on October 31, 2007, admitted, “There were letters
that went out to these companies that said very forcefully this is being directed, this is directed by the president, and
this has been deemed lawful at the very highest levels of the government.” None of the letters sent to the companies have
been released, but a number of Washington-based attorneys familiar with the matter confirmed that the letters exist and serve
as the companies’ chief legal defense against the charge that they violated state and federal laws.
²⁹
A Washington-based official representing one of the companies confirmed that his client has in its files almost seven years
of accumulated correspondence from the Justice Department assuring the company that its cooperation with NSA was legal and
proper, with a new letter arriving from Washington every forty-five days reiterating that the company’s work on behalf of
the U.S. government continued to be required.
³⁰

Naturally, the telecommunications companies will neither confirm nor deny their participation in the NSA program, but AT&T
and the other companies have repeatedly stated that as a matter of policy they cooperate with all lawful requests made of
them by U.S. law enforcement agencies. The companies have furiously fought in the courts attempts by state regulators and
private citizens to determine if they improperly provided NSA with calling information for their customers. They have also
lobbied intensively, with full White House support, to have Congress immunize them from any civil or criminal liabilities
that may have extended from their participation in the NSA domestic eavesdropping program.
³¹

But questions have mounted among NSA officials because of the strenuous efforts by the Bush administration to persuade Congress
to grant retroactive immunity from both civil suits and criminal prosecution to all of the American telecommunications companies
that have participated in NSA’s domestic eavesdropping programs. The problem was that until October 2007 the White House would
not tell Congress what the companies had done as part of the programs, so Congress was placed in the surreal position of being
asked to give complete immunity to the telecommunications companies without knowing what it was that they had done.
³²

Then, to the shock of many, in October 2007 the House and Senate intelligence committees, now controlled by the Democrats,
bowed to White House pressure and intense lobbying by the telecommunications companies and, after being given limited access
to classified documents concerning the role played by the companies in the NSA domestic eavesdropping effort, approved a proposal
to give the companies the full immunity they wanted. The immunity deal was approved by Congress in 2008.
³³

Former NSA officials believe that just as with the ASA Shamrock program of the Cold War, the telecommunications companies
knew that what they were doing was illegal from the very beginning. As one NSA retiree put it, “why then would they need immunity
if what they did was legal?” After reading a spate of newspaper reports on the subject, a disgusted NSA official said, “They
keep trying to give the telecoms a ‘Get Out of Jail Free’ card. That tells me there is something illegal about what the companies
have been doing. [The immunity deal] stinks to high heaven.”
³⁴

But Is It Legal?

Much of the debate since the first
New York Times
article came out in December 2005 has focused on the legality of the NSA warrantless domestic eavesdropping program. Its legal
ramifications are immense and of enormous consequence for every American.

At the center of this debate are a number of still-classified legal briefs written by then–White House legal counsel (and
subsequently Attorney General) Alberto Gonzales and Justice Department lawyer John Yoo, which served as the legal rationale
and underpinning of the NSA program. Gonzales, who authored one of these Top Secret documents, eventually disclosed that the
central argument of his brief, and of Yoo’s brief, is that in time of war there are, in his opinion, no restrictions on what
the president of the United States can or cannot do in the name of national security. Gonzales’s and Yoo’s legal briefs essentially
argue that the president’s expansive wartime powers gave him the authority to bypass the Foreign Intelligence Surveillance
Court and order NSA to conduct warrant-less surveillance operations without reference to the FISC. In essence, the briefs
argue that the president’s wartime powers trump the Fourth Amendment of the Constitution, which is supposed to protect Americans
against unwarranted searches and seizures. This interpretation of the president’s war powers also served as the legal justification
for the CIA’s highly sensitive counterterrorist intelligence-gathering effort referred to within the U.S. intelligence community
solely by the initials “GST.”
³⁵

The problem is that these legal briefs fly in the face of over two hundred years of this nation’s constitutional case law,
which has found that even in time of war there are indeed constitutional limits on the powers of the presidency. The American
Bar Association and a host of prominent American constitutional scholars from all political denominations have argued that
there is no court decision or legal precedent that supports President Bush’s contention that his constitutional authority
allows him to override or disregard an act of Congress or the Constitution. This argument was laid out in a lengthy February
2, 2006, let-ter to Congress written by fourteen distinguished constitutional law scholars, including Harold Hongju Koh, the
dean of Yale Law School, and the former heads of the Stanford and University of Chicago law schools, who wrote,

The argument that conduct undertaken by the Commander-in-Chief that has some relevance to “engaging the enemy” is immune from
congressional regulation finds no support in, and is directly contradicted by, both case law and historical precedent. Every
time the Supreme Court has confronted a statute limiting the Commander-in-Chief’s authority, it has upheld the statute. No
precedent holds that the President, when acting as Commander-in-Chief, is free to disregard an Act of Congress, much less
a criminal statute enacted by Congress, that was designed specifically to restrain the President as such.
³⁶

Interviews reveal that these same concerns are shared by a number of mostly retired NSA officials, some of whom lived through
the Church Committee hearings of 1975 on the agency’s illegal domestic operations. At the heart of their unease is the fact
that many of them just plain don’t like spying on Americans, no matter what the stated legal rationale, the predominant feeling
being that NSA should remain a strictly foreign intelligence agency and not get caught up in domestic surveillance work. An
NSA staffer had this to say in an anonymous e-mail posting sent to a magazine: “It’s drilled into you from minute one that
you should not ever, ever, ever, under any fucking circumstances turn this massive apparatus on an American citizen. You do
a lot of weird shit. But at least you don’t fuck with your own people.”
³⁷
A retired NSA official, worried about the future ramifications for the agency resulting from the political furor over the
its domestic operations, said, “This is just plain cops and robbers stuff . . . This whole thing is a matter for the FBI counter-terrorist
types. We shouldn’t have anything to do with this at all.”
³⁸