16 December 2013
Spies Reign Obama
The Political Scene
State of Deception
Why wont the President rein in the intelligence community?
Lizza December 16, 2013
A senator campaigning for reform says that the intelligence leadership drives
how decisions get made at the White House.
On March 12, 2013, James R. Clapper appeared before the Senate Select Committee
on Intelligence to discuss the threats facing America. Clapper, who is
seventy-two, is a retired Air Force general and Barack Obamas director
of National Intelligence, in charge of overseeing the National Security Agency,
the Central Intelligence Agency, and fourteen other U.S. spy agencies. Clapper
is bald, with a gray goatee and rimless spectacles, and his affect is
intimidatingly bureaucratic. The fifteen-member Intelligence Committee was
created in the nineteen-seventies, after a series of investigations revealed
that the N.S.A. and the C.I.A. had, for years, been illegally spying on
Americans. The panels mission is to conduct vigilant legislative
oversight of the intelligence community, but more often it treats senior
intelligence officials like matinée idols. As the senators took turns
at the microphone, greeting Clapper with anodyne statements and inquiries,
he obligingly led them on a tour of the dangers posed by homegrown extremists,
far-flung terrorist groups, and emerging nuclear powers.
This hearing is really a unique opportunity to inform the American
public to the extent we can about the threats we face as a nation, and
worldwide, Dianne Feinstein, a California Democrat and the
committees chairman, said at one point. She asked committee members
to refrain from asking questions here that have classified answers.
Saxby Chambliss, a Georgia Republican, asked about the lessons of the terrorist
attack in Benghazi. Marco Rubio, a Florida Republican, asked about the dangers
of Egypts Muslim Brotherhood.
Toward the end of the hearing, Feinstein turned to Senator Ron Wyden, of
Oregon, also a Democrat, who had a final question. The two senators have
been friends. Feinstein held a baby shower for Wyden and his wife, Nancy
Bass, before the birth of twins, in 2007. But, since then, their increasingly
divergent views on intelligence policy have strained the relationship.
This is an issue where we just have a difference of opinion,
Wyden told me. Feinstein often uses the committee to bolster the tools that
spy agencies say they need to protect the country, and Wyden has been
increasingly concerned about privacy rights. For almost a decade, he has
been trying to force intelligence officials like Clapper to be more forthcoming
about spy programs that gather information about Americans who have no connection
Wyden had an uneasy kind of vindication in June, three months after
Clappers appearance, when Edward Snowden, a former contractor at the
N.S.A., leaked pages and pages of classified N.S.A. documents. They showed
that, for the past twelve years, the agency has been running programs that
secretly collect detailed information about the phone and Internet usage
of Americans. The programs have been plagued by compliance issues, and the
legal arguments justifying the surveillance regime have been kept from view.
Wyden has long been aware of the programs and of the agencys appalling
compliance record, and has tried everything short of disclosing classified
information to warn the public. At the March panel, he looked down at Clapper
as if he were about to eat a long-delayed meal.
Wyden estimates that he gets about fifteen minutes a year to ask questions
of top intelligence officials at open hearings. With the help of his intelligence
staffer, John Dickas, a thirty-five-year-old from Beaverton, Oregon, whom
Wyden calls the hero of the intelligence-reform movement, Wyden
often spends weeks preparing his questions. He and Dickas look for opportunities
to interrogate officials on the gaps between what they say in public and
what they say in classified briefings. At a technology conference in Nevada
the previous summer, General Keith Alexander, the director of the N.S.A.,
had said that the story that we have millions or hundreds of millions
of dossiers on people is absolutely false. Wyden told me recently,
It sure didnt sound like the world I heard about in private.
For months, he tried to get a clarification from the N.S.A. about exactly
what Alexander had meant. Now he had the opportunity to ask Clapper in public.
As a courtesy, he had sent him the question the day before.
Wyden leaned forward and read Alexanders comment. Then he asked,
What I wanted to see is if you could give me a yes or no answer to
the question Does the N.S.A. collect any type of data at all on millions
or hundreds of millions of Americans?
Clapper slouched in his chair. He touched the fingertips of his right hand
to his forehead and made a fist with his left hand.
No, sir, he said. He gave a quick shake of his head and looked
down at the table.
It does not? Wyden asked, with exaggerated surprise.
Not wittingly, Clapper replied. He started scratching his forehead
and looked away from Wyden. There are cases where they could inadvertently
perhaps collect, but not wittingly.
Wyden told me, The answer was obviously misleading, false. Feinstein
said, I was startled by the answer. In Washington, Snowdens
subsequent leaks created the most intense debate about the tradeoffs between
national security and individual liberty since the attacks of September 11th.
The debate will likely continue. According to Feinstein, Snowden took
millions of pages of documents. Only a small fraction have become
public. Under directions that the White House issued in June, Clapper
declassified hundreds of pages of additional N.S.A. documents about the
domestic-surveillance programs, and these have only begun to be examined
by the press. They present a portrait of an intelligence agency that has
struggled but often failed to comply with court-imposed rules established
to monitor its most sensitive activities. The N.S.A. is generally authorized
to collect any foreign intelligence it wantsincluding conversations
from the cell phone of Germanys Chancellor, Angela Merkelbut
domestic surveillance is governed by strict laws. Since 2001, the N.S.A.
has run four surveillance programs that, in an effort to detect terrorist
plots, have swept up the contents of the phone and Internet communications
of hundreds of thousands of Americans, and collected the telephone and Internet
metadata of many more Americans. (Metadata is data about data. For telephone
records, it can include numbers dialled, the date, time, and length of calls,
and the unique identification of a cell phone. Internet metadata can include
e-mail and I.P. addresses, along with location information, Web sites visited,
and many other electronic traces left when a person goes online.)
Soon after the March hearing, Dickas called a senior member of Clappers
staff and requested that Clapper acknowledge that his statement had been
wrong. Through his staff member, Clapper declined. In July, however, after
Snowdens leaks, Clapper finally wrote to the committee and offered
a formal retraction: My response was clearly erroneous, for which I
apologize. Wyden told me, There is not a shred of evidence that
the statement ever wouldve been corrected absent the Snowden
Wyden is now working on a bill that would ban the mass collection of phone
records and reform the court that oversees the N.S.A.s domestic
surveillance. Feinstein, who has resisted most of Wydens efforts at
disclosure over the years, has put forward her own legislation, which would
authorize the N.S.A. to continue bulk collection. Wyden dismisses her bill
as cosmetic stuff that just puts the old wine in a new bottle.
Feinstein counters that it puts some very stringent parameters on
the program. She adds, Senator Wyden also calls it a surveillance
program. Its not a surveillance programit is a data-collection
Feinstein and Clapper insist that Wydens latest proposals would deprive
the N.S.A. of crucial tools that it uses to disrupt terrorist plots. President
Obama has been mostly silent on the issue. In August, he appointed a five-person
panel to review intelligence policy, and the group is scheduled to issue
recommendations by the end of the year. His decisions about what changes
to endorse could determine whether his Presidency is remembered for rolling
back one of the most controversial national-security policies of the Bush
years or codifying it.
Wyden, who said that he has had several spirited discussions
with Obama, is not optimistic. It really seems like General Clapper,
the intelligence leadership, and the lawyers drive this in terms of how decisions
get made at the White House, he told me. It is evident from the Snowden
leaks that Obama inherited a regime of dragnet surveillance that often operated
outside the law and raised serious constitutional questions. Instead of shutting
down or scaling back the programs, Obama has worked to bring them into narrow
compliance with rulesset forth by a court that operates in
secretthat often contradict the views on surveillance that he strongly
expressed when he was a senator and a Presidential candidate.
These are profoundly different visions, Wyden said, referring
to his disagreements with Obama, Feinstein, and senior intelligence officials.
I start with the proposition that security and liberty are not mutually
exclusive. He noted that General Alexander had an exceptionally
expansive vision of what the N.S.A. should collect. I asked Wyden for
his opinion of the members of the review panel, most of whom are officials
with ties to the intelligence establishment. He smiled and raised his eyebrows.
An aide said, Hope springs eternal.
IIS IT LEGAL?
In 1961, when John F. Kennedy took office, he inherited a scheme from his
predecessor, Dwight Eisenhower, to invade Cuba with a small band of exiles
and overthrow Fidel Castro. The plot, devised by the C.I.A. and carried out
in April of that year, was a disaster: the invading forces, shepherded by
C.I.A. operatives, were killed or captured, and Castros stature increased.
The failed plot is richly documented in a 1979 book, Bay of Pigs: The
Untold Story, written by Senator Wydens father, Peter. At the
time of its release, the book, which won an Overseas Press Club award, was
the most comprehensive account of the Bay of Pigs fiasco. (During a six-hour
interview with Peter Wyden, Castro marvelled that the author knows
more about it than we do.) One recent morning, when Ron Wyden and I
were sitting in his office discussing the N.S.A., he leaped out of his chair
and walked across the room to a small bookshelf. I want to show you
something, he said, and handed me a tattered copy of his fathers
book. It describes how the C.I.A.s arrogance and obsessive secrecy,
combined with Kennedys naïveté, led a young President to
embrace a wildly flawed policy, resulting in an incident that the author
likens to Waterloo staged by the Marx Brothers. In Ron Wydens
view, the book explains a great deal about the modern intelligence community
and his approach to its oversight.
Wyden, a former college-basketball player, is a gangly six feet four and
speaks in an incongruous high-pitched voice. He grew up in Palo Alto, California,
and graduated from Stanford, where his mother was a librarian. He went to
law school at the University of Oregon and, in 1972, worked as a volunteer
on the campaign of Senator Wayne Morse. Morse, an Oregon Democrat, had been
one of two senators to vote against the Gulf of Tonkin Resolution, eight
years earlier, and became an outspoken opponent of the Vietnam War. The position
had cost him the 68 race; the Republican Bob Packwood won. Perhaps
more than any other political figure Ive either been around or studied,
Morse embodied a sense of independence, Wyden said. I thought,
This is what public service is supposed to be about.
Wyden was Morses expert on issues important to seniors in Oregon, and
he later set up the Oregon chapter of the Gray Panthers, an organization
that fought for seniors rights. One of the earliest national newspaper
stories about Wyden, which ran in the Times on January 7, 1979, described
a victory that elderly Oregonians won in the state legislature, where a
Wyden-backed plan to allow non-dentists to fit and sell dentures was approved.
I think the measure really shows that senior citizens have bulging
political biceps, Wyden told the Times.
The next year, at thirty-one, Wyden won a U.S. House seat in a Portland district.
Although he focussed on domestic issues, he entered politics just as major
changes were taking place in the intelligence agencies. In the
nineteen-seventies, a Senate committee chaired by Frank Church revealed
widespread abuses at the N.S.A., the C.I.A., and other agencies, including
active programs to spy on Americans. An N.S.A. program called Project
SHAMROCK, which started shortly after the
Second World War, had persuaded three major American telegraph companies
to hand over most of their traffic. By the time the program was shut down,
in 1975, the N.S.A. had collected information on some seventy-five thousand
citizens. For many years, the information was shared with the C.I.A., which
was running its own illegal domestic-intelligence program, Operation
The Church committee recommended not only sweeping reform of the laws governing
the intelligence community but also a new system of oversight. Senator Walter
Mondale, a member of the committee, said he worried about another day
and another President, another perceived risk and someone breathing hot down
the neck of the military leader then in charge of the N.S.A. Under
those circumstances, he feared, the N.S.A. could be used by President
A in the future to spy upon the American people. He urged
Congress to very carefully define the law. In 1978, Congress
passed the Foreign Intelligence Surveillance Act, or
FISA, which forbade the intelligence agencies
to spy on anyone in the U.S. unless they had probable cause to believe that
the person was a foreign power or the agent of a foreign power.
The law set up the Foreign Intelligence Surveillance Court, and, in 1976,
Congress created the Senate Select Committee on Intelligence. The N.S.A.
and other spy agencies are instructed to keep the committee, as well as a
similar one in the House, fully and currently informed.
In 1995, Packwood resigned, after numerous women accused him of sexual harassment
and assault, and Wyden won a special election, in 1996, to replace him. In
early 2001, he landed a spot on the Intelligence Committee. His father had
told him about how the intelligence community had stonewalled his requests
for basic information for his book. Wyden soon encountered that opacity himself,
he told me, especially after September 11th: That really changed the
On October 13, 2001, fifty computer servers arrived at the N.S.A.s
headquarters, in Fort Meade, Maryland. The vender concealed the identity
of the N.S.A. by selling the servers to other customers and then delivering
the shipments to the spy agency under police escort. According to a 2009
working draft of a report by the N.S.A.s inspector general, which Snowden
provided to Glenn Greenwald, of the Guardian, their arrival marked
the start of four of the most controversial surveillance programs in the
agencys historyprograms that, for the most part, are ongoing.
At the time, the operation was code-named
In the days after 9/11, General Michael Hayden, the director of the N.S.A.,
was under intense pressure to intercept communications between Al Qaeda leaders
abroad and potential terrorists inside the U.S. According to the inspector
generals report, George Tenet, the director of the C.I.A., told Hayden
that Vice-President Dick Cheney wanted to know if N.S.A. could be doing
more. Hayden noted the limitations of the
FISA law, which prevented the N.S.A. from
indiscriminately collecting electronic communications of Americans. The agency
was legally vacuuming up just about any foreign communications it wanted.
But when it targeted one side of a call or an e-mail that involved someone
in the U.S. the spy agency had to seek permission from the
FISA court to conduct surveillance. Tenet
later called Hayden back: Cheney wanted to know what else the N.S.A. might
be able to do if Hayden was given authority that was not currently in the
Hayden resurrected a plan from the Clinton years. In the late fall of 1999,
a large body of intelligence suggested that Osama bin Laden was planning
multiple attacks around New Years Eve. The Clinton Administration was
desperate to discover links between Al Qaeda operatives and potential terrorists
in the U.S., and N.S.A. engineers had an idea that they called contact
chaining. The N.S.A. had collected a trove of telephone metadata. According
to the N.S.A. report, Analysts would chain through masked U.S. telephone
numbers to discover foreign connections to those numbers.
Officials apparently believed that, because the U.S. numbers were hidden,
even from the analysts, the idea might pass legal scrutiny. But the Justice
Department thought otherwise, and in December of 1999 it advised the N.S.A.
that the plan was tantamount to electronic surveillance under
FISA: it was illegal for the N.S.A. to rummage
through the phone records of Americans without a probable cause. Nonetheless,
the concept of bulk collection and analysis of metadata was born. During
several meetings at the White House in the fall of 2001, Hayden told Cheney
that the FISA law was outdated. To collect
the content of communications (what someone says in a phone call or writes
in an e-mail) or the metadata of phone and Internet communications if one
or both parties to the communication were in the U.S., he needed approval
from the fisa court. Obtaining court orders
usually took four to six weeks, and even emergency orders, which were sometimes
granted, took a day or more. Hayden and Cheney discussed ways the N.S.A.
could collect content and metadata without a court order.
The Vice-Presidents lawyer, David Addington, drafted language authorizing
the N.S.A. to collect four streams of data without the
FISA courts permission: the content
of Internet and phone communications, and Internet and phone metadata. The
White House secretly argued that Bush was allowed to circumvent the
FISA law governing domestic surveillance thanks
to the extraordinary power granted by Congresss resolution, on September
14th, declaring war against Al Qaeda. On October 4th, Bush signed the
surveillance authorization. It became known inside the government as the
P.S.P., the Presidents Surveillance Program. Tenet authorized an initial
twenty-five million dollars to fund it. Hayden stored the document in his
Over the weekend of October 6, 2001, the three major telephone
companiesA. T. & T., Verizon, and BellSouth, which
for decades have had classified relationships with the N.S.A.began
providing wiretap recordings of N.S.A. targets. The content of e-mails followed
shortly afterward. By November, a couple of weeks after the secret computer
servers were delivered, phone and Internet metadata from the three phone
companies began flowing to the N.S.A. servers over classified lines or on
compact disks. Twenty N.S.A. employees, working around the clock in a new
Metadata Analysis Center, at the agencys headquarters, conducted the
kind of sophisticated contact chaining of terrorist networks that the Clinton
Justice Department had disallowed. On October 31st, the cover term for the
program was changed to STELLARWIND.
Nearly everyone involved wondered whether the program was legal. Hayden
didnt ask his own general counsel, Robert Deitz, for his opinion until
after Bush signed the order. (Deitz told Hayden he believed that it was legal.)
John Yoo, a Justice Department lawyer, wrote a legal opinion, the full text
of which has never been disclosed, arguing that the plan was legal. When
Deitz tried to obtain the text, Addington refused his request but read him
some excerpts over the phone. Hayden never asked for the official legal opinion
and never saw it, according to the inspector generals report. In May,
2002, the N.S.A. briefed Judge Colleen Kollar-Kotelly, the incoming chief
of the Foreign Intelligence Surveillance Court, about the program. She was
shown a short memo from the Department of Justice defending its legality,
but wasnt allowed to keep a copy. The N.S.A.s inspector general
later said he found it strange that N.S.A. was told to execute a secret
program that everyone knew presented legal questions, without being told
the underpinning legal theory.
Meanwhile, Wyden, on the Intelligence Committee, found himself involved in
the first debate about the U.S.A. Patriot Act, a law that the Bush White
House pushed through Congress in October, 2001, and which included major
changes to FISA. Tucked into the bill, in
Section 215, was something called the business records provision.
It allowed the government to seize any tangible thing from a
company as long as officials proved to the
FISA court that the item was sought
for an investigation to protect against international terrorism.
Of the many new powers that Congress granted law enforcement through the
Patriot Actroving wiretaps, delayed-notice search warrantsthis
was not the most controversial provision at the time. It was often innocuously
described as the library records provision, conjuring the notion
that the government should know if someone is checking out bomb-making books.
Some members of Congress were satisfied with the wording because Representative
Jim Sensenbrenner, a Republican who was the chairman of the Judiciary Committee,
and who wrote the Patriot Act, had defeated an effort by the Bush White House
to make the provision even more expansive. Wyden voted for the legislation,
which included the most substantial modifications of
FISA since 1978, when it was enacted, but
he helped attach sunsets to many provisions, including Section
215, that hadnt been thoroughly examined: in five years, Congress would
have to vote again, to reauthorize them. As Wyden later wrote, The
idea was that these provisions would be more thoughtfully debated at a later,
less panicked time. The Patriot Act passed overwhelmingly. (Russ Feingold,
of Wisconsin, was the only senator to oppose it.)
Three months later, the Defense Department started a new program with the
Orwellian name Total Information Awareness. T.I.A. was based inside the
Pentagons Information Awareness Office, which was headed by Admiral
John Poindexter. In the nineteen-eighties, Poindexter had been convicted,
and then acquitted, of perjury for his role in the Iran-Contra scandal. He
wanted to create a system that could mine a seemingly infinite number of
government and private-sector databases in order to detect suspicious activity
and preëmpt attacks. The T.I.A. system was intended to collect information
about the faces, fingerprints, irises, and even the gait of suspicious people.
In 2002 and 2003, Wyden attacked the program as a major affront to privacy
rights and urged that it be shut down.
In the summer of 2003, while Congress debated a crucial vote on the future
of the plan, Wyden instructed an intern to sift through the Pentagons
documents about T.I.A. The intern discovered that one of the programs
ideas was to create a futures market in which anonymous users could place
bets on events such as assassinations and terrorist attacks, and get paid
on the basis of whether the events occurred. Wyden called Byron Dorgan, a
Democratic senator from North Dakota, who was also working to kill the program.
Byron, weve got what we need to win this, he told him.
You and I should make this public. Twenty-four hours after they
exposed the futures-market idea at a press conference, Total Information
Awareness was dead. Poindexter soon resigned.
It was Wydens first real victory on the Intelligence Committee. If
you spend enough time digging into these documents and doing the work, it
can pay off, Wyden told me. The one advantage that I have, being
on the Intelligence Committee, is a chance to get access to information.
But you really have to fight for it.
In the first season of Homeland, the Showtime drama about the
C.I.A. and terrorism, the protagonist, an agent named Carrie Mathison, conducts
warrantless surveillance on an American whom she suspects is a terrorist.
Saul Berenson, her boss at the C.I.A., realizes that its problematic,
so he persuades a judge on the FISA court
to give the operation the courts legal imprimatur. Like many of the
shows plot twists, the episode seemed implausible. But it is a pale
shadow of what happened with the Bush-era surveillance programs. Between
2001 and 2007, according to the inspector generals report, before the
four STELLARWIND programs had all gained a
legal legitimacy, the N.S.A. wiretapped more than twenty-six hundred American
telephones and four hundred American e-mail accounts, and collected phone
and Internet metadata from hundreds of millions more.
During that time, an expanding circle of people in Washington, including
members of Congress, lawyers at the Justice Department, reporters, and,
eventually, the public, gradually became aware of the Bush programs. Jay
Rockefeller, then the top Democrat on the Intelligence Committee, was one
of the first officials to express dissent. On July 17, 2003, Rockefeller
came back shaken from a White House meeting with Cheney, who had briefed
him on the N.S.A. programs. While Congress was shutting down the Total
Information Awareness program, the four phone- and Internet-spying programs
under STELLARWIND had been up and running
for about two years. Rockefeller drafted a handwritten letter to Cheney.
Clearly, the activities we discussed raise profound oversight
issues, he wrote. As you know, I am neither a technician nor
an attorney. Given the security restrictions associated with this information,
and my inability to consult staff or counsel on my own, I feel unable to
fully evaluate, much less endorse these activities. As I reflected on the
meeting today, and the future we face, John Poindexters TIA project
sprung to mind, exacerbating my concern regarding the direction the
Administration is moving with regard to security, technology, and
Some Administration officials were concerned, too. In early March of 2004,
Deputy Attorney General James Comey, who was serving as the acting Attorney
General while John Ashcroft was in the hospital, determined that three of
the four STELLARWIND programs were legal,
but that the program involving the bulk collection of Internet metadata was
not. Cheney summoned Comey to the White House and tried to change his mind,
telling him that his decision would put thousands of lives at risk. Comey
wouldnt budge. Bush then sent two top White House aides to the hospital
to visit Ashcroft, who was in the intensive-care unit after surgery. Ashcroft
refused to overrule Comey, and the White House decided that Alberto Gonzales,
Bushs counsel, would sign a new authorization instead. Addington called
Hayden the following day to make sure that he would accept the document despite
the opposition of the Justice Department. Will you do it? he
asked, according to the N.S.A. report. Hayden told me that he agreed, because
he had multiple previous such orders from D.O.J. and strong
congressional support, and also had in mind the deaths of nearly
two hundred Spaniards that morning in an Al Qaeda terrorist attack in
Lawyers many tiers below the Attorney General slowly became aware that the
N.S.A. was working on something that people referred to simply as the
program. Not long after Comeys refusal, one Justice lawyer, Thomas
M. Tamm, picked up a pay phone in a Metro station and called the
Times. He told the newspaper everything he knew about
STELLARWIND. As the paper began investigating
Tamms allegations, the N.S.A. decided that the
STELLARWIND programs needed a legal justification
that carried more weight than a letter from the President. Like the
C.I.A.s Saul Berenson in Homeland, the agency asked the
FISA court to make the programs legal. (As
of March 26th, the Internet-metadata program had been suspended.) According
to the N.S.A. report, lawyers at the N.S.A. and the Justice Department
immediately began efforts to re-create this authority.
Over the summer, on two consecutive Saturdays, Hayden met with Judge
Kollar-Kotelly, of the FISA court, to press
for new authority to run the Internet-metadata program. On July 14, 2004,
she gave her assent. She cited a contentious 1979 Supreme Court case, Smith
v. Maryland, which held that police could place a type of monitor called
a pen register on a suspects phone without a warrant. But
the order didnt target a single device; it allowed the N.S.A. to collect
the metadata of all U.S. devices communicating with devices outside the U.S.
According to the N.S.A. report, The order essentially gave N.S.A. the
same authority to collect bulk Internet metadata that it had under the
P.S.P., Bushs original, warrantless plan. (Later, Judge
Kollar-Kotelly reportedly expressed misgivings about the N.S.A.s misuse
of the program, even shutting it down at one point, when she learned that
the N.S.A. might have been overstepping its authority.)
On December 16, 2005, the Times broke the news about some aspects
of the Presidents four-pronged surveillance program. After the story
appeared, Bush addressed the country to defend the P.S.P., calling it the
Terrorist Surveillance Program. He claimed that it had been
thoroughly reviewed by the Justice Department and N.S.A.s top
legal officials, and that N.S.A. analysts receive extensive training
to insure they perform their duties consistent with the letter and intent
of the authorization. Wyden didnt know whether to be more shocked
by the details of the N.S.A. program or by the way he learned about it. I
read about it in the New York Times, he told me.
The Times had uncovered many details about the two programs that collected
the content of e-mails and phone calls, and won a Pulitzer for its investigation,
but the two metadata programs run by the N.S.A. were still largely unknown,
even to most members of the Senate Intelligence Committee. Some details of
the metadata programs soon appeared in the Times, in USA Today,
and in a story by Seymour Hersh in this magazine. But the Bush Administration
never officially confirmed the existence of the programs, which remained
secret until this year.
IIOBAMA SIGNS ON
Even without a full picture of the programs, two senators who were not on
the Intelligence Committee became intense critics of N.S.A. domestic
surveillance: Barack Obama and Joe Biden. In May, 2006, after the USA
Today article appeared, Biden said it was frightening to learn that the
government was collecting telephone records. I dont have to listen
to your phone calls to know what youre doing, he told CBS News.
If I know every single phone call you made, Im able to determine
every single person you talked to. I can get a pattern about your life that
is very, very intrusive.
Obamas objections to domestic surveillance stretched back even further.
In 2003, as a Senate candidate, he called the Patriot Act shoddy and
dangerous. And at the 2004 Democratic Convention, in the speech that
effectively launched his eventual campaign for President, he took aim at
the library records provision of the law. We worship an
awesome God in the blue states, and we dont like federal agents poking
around our libraries in the red states, he declared. In 2005, when
he arrived in Washington, Obama became one of Wydens new allies in
his attempts to reform the law. The Patriot Act was up for reauthorization,
and, at Wydens urging, the Senate was trying to scale back the
library records section. One of the first bills that Obama
co-sponsored, the Security and Freedom Enhancement Act, would have required
that the government present specific and articulable facts if
it wanted a court order for records, a much higher standard than the existing
Obama and several other senators, including John Kerry, now the Secretary
of State, and Chuck Hagel, the current Secretary of Defense, laid out their
legal case against the provision in a letter to colleagues on December 14,
2005. The government could obtain library, medical and gun records
and other sensitive personal information under Section 215 of the Patriot
Act on a mere showing that those records are relevant to an authorized
intelligence investigation, they wrote. It allowed government
fishing expeditions targeting innocent Americans. We believe the government
should be required to convince a judge that the records they are seeking
have some connection to a suspected terrorist or spy. The following
day, on the Senate floor, Obama said that the provision seriously
jeopardizes the rights of all Americans and the ideals America stands for.
The Bush White House fought Obamas changes, but offered a few minor
concessions. Most notably, a business that received a demand for records
could challenge in court a nondisclosure agreement that accompanied the demand.
That was enough to placate some Democrats, including Obama. Wyden objected
that the change did nothing to address Obamas concerns, but the
reauthorization of the Patriot Act passed the Senate on March 1, 2006. Wyden,
eight other Democrats, and one Independent voted against it; Obama and Biden
voted for it. Bush signed the law on March 9th.
Wyden later learned that, while he and Obama were fighting to curtail Section
215, the N.S.A.s lawyers were secretly arguing before the
FISA court that the provision should allow
the N.S.A. to legally collect the phone records of all Americans. The lawyers,
encouraged by their success in retroactively legalizing the Internet-metadata
program, believed that they could persuade the
FISA court to force phone companies to regularly
hand over their entire databases. At the FISA
court, there are no lawyers challenging the governments arguments;
all the N.S.A. needed to do was convince a single judge. Had Obamas
language been adopted, the N.S.A.s case would have collapsed.
Just after noon on May 24, 2006, the FISA
court issued a secret opinion ratifying the N.S.A.s audacious proposal.
It became known as the Business Records Order. That bland language concealed
the fact that the courts opinion dramatically reinterpreted the scope
of the library records provision. The
FISA court essentially gave the N.S.A. authority
to place a pen register on everyones phone. Anytime an American citizen
makes a call, it is logged into an N.S.A. database. The court required some
new oversight by the Justice Department and new rules for accessing the database,
but it was a nearly complete victory for the agency. The change was unknown
to most members of Congress, including Obama and Wyden, who had just finished
debating the Patriot Act. What do I know? Wyden would tell people
who asked him about sensitive national-security issues. Im only
on the Intelligence Committee.
At the time, the public and Congress were understandably focussed on Bushs
warrantless wiretapping, and only a few officials understood the full details
of the phone-metadata program. Wyden began asking questions. In June, 2006,
after some stonewalling, the Bush Administration began providing summary
briefings to the committee about the program. Wyden wasnt allowed to
bring any staff, and the N.S.A. didnt respond to many of his follow-up
questions. It wasnt until the next January, after the Democrats took
over Congress and were able to change the rules so that Wyden could bring
Dickas to the briefings, that he fully understood what the agency was doing
with the Business Records Order. He was stunned. Look at the gap between
what people think the law is and how its been secretly interpreted,
he said. Holy Toledo!
The National Counterterrorism Center is in an X-shaped building, known as
Liberty Crossing, that is disguised as a suburban office park. It sits on
a hill a few miles from C.I.A. headquarters, in northern Virginia. The center
was created in 2003, at the recommendation of the 9/11 Commission, which
concluded that the attacks might have been prevented if the F.B.I. and the
C.I.A. had done a better job of sharing intelligence. At the base of the
flagpole at the N.C.T.C.s main entrance is a concrete jigsaw puzzle
that represents the organizations central mission: fitting together
the seemingly random pieces of intelligence that flow into Liberty Crossing
from the N.S.A., the C.I.A., the F.B.I., and other agencies.
The director of the N.C.T.C. since 2011 has been Matthew G. Olsen, a former
federal prosecutor. He is a young-looking fifty-one, despite his hair, which
has thinned and become grayer since he took his current job. Down the hall
from his office is a door marked Weapons, Tactics, and Targets
Group, which is part of the N.C.T.C.s Directorate of Intelligence.
The N.C.T.C. helps prepare the target lists, sometimes called kill lists,
of terrorists who must be approved by Obama as legitimate threats in order
to be the object of C.I.A. drone strikes. In a recent dissertation about
the N.C.T.C., a former C.I.A. analyst, Bridget Rose Nolan, quoted a colleague
who described the process as: You track em, we whack
em. The day after I visited, in mid-November, a drone over Pakistan
that sought to strike a terrorist compound fired three missiles that Pakistani
officials claimed hit a madrassa and killed six people.
Olsen is one of the few high-level national-security officials to have dealt
with the legal issues of the N.S.A.s programs in both the Bush and
the Obama Administrations, and he offers a fair reflection of how the current
President and his top advisers approach them. In September, 2006, Olsen moved
to the Justice Departments new National Security Division, which was
charged with overseeing the increasingly complex
FISA cases concerning the N.S.A. He led a
hundred lawyers in what was then called the Office of Intelligence Policy
Review, which did all the preparatory work for the
FISA court. Olsen started four months after
the court secretly legalized the phone-metadata program. I didnt
know any of it before I took the job, he told me. Only a handful
of people in the entire government knew anything about it.
Two weeks into the job, Olsen received his first assignment from lawyers
at the N.S.A. The N.S.A. had been lobbying the
FISA court to approve its four
domestic-surveillance programs. The two metadata programs had been O.K.ed;
now Olsen and his colleagues had to persuade the
FISA judge to make the phone and e-mail
wiretapping programs legal. He did not see the job as especially controversial.
It was a huge policy debate, one of the biggest ones post-9/11, and
were still having it, he said. But at the time I felt like
a lawyer whod been handed a problem at a very tactical level: How do
we figure this out? What are the legal rules were applying? What are
the facts? How do we work with the N.S.A.? He added, I thought
the goal was actually quite laudable. I was pleased to have the opportunity
to work on an important thing, and I thought, Yes, if we could figure out
a way to put this on a more firm legal footing, whether through judicial
authority or legislative authority, that would be quite an important achievement,
and it would be better for the country.
The legal case for phone and Internet wiretapping was harder to make than
the arguments concerning metadata. The Supreme Court had ruled in 1979 that
metadata was not covered by the Fourth Amendment, but the content of phone
calls and e-mails certainly was. Since 9/11, the N.S.A. had largely ignored
the law requiring it to get a warrant for each domestic target whose content
it collected. The FISA court was not impressed
with Olsens attempt to justify legalizing the program. It issued new
rules that vastly reduced the amount of collection from foreign phone and
Internet sources. Olsen and his team tried different legal theories, but
the court balked. Eventually, he and his colleagues decided that Bush would
have to go to Congress instead and ask for legislation to amend the
In 2008, Olsen helped lobby Congress to approve a new system that would curtail
the fiSA courts role and allow the N.S.A.
to intercept enormous numbers of communications to and from the U.S. The
FISA court had only to review and certify
the over-all system that the N.S.A. would use; it no longer had to approve
each target. Congress passed the FISA Amendments
Act of 2008 on July 9th. All four Bush programs now had legal cover.
In the Senate Intelligence Committee, only Wyden and Feingold voted against
the new FISA law. They were troubled by the
central provisionSection 702which created the new system governing
N.S.A. surveillance of phone and Internet content. I am one of the
few members of this body who has been fully briefed on the
warrantless-wiretapping program, Feingold said at the time, in a speech
on the Senate floor. I can promise that if more information is declassified
about the program in the future, as is likely to happen . . . members of
this body will regret that we passed this legislation. Wyden was reassured
when Obama was elected President. Although Obama had voted for the new law,
he promised at the time of the vote that, if he became President, his Attorney
General would immediately conduct a comprehensive review of all our
In February of 2009, days after Obama was sworn in, Olsen and Benjamin Powell,
a Bush holdover and the general counsel for the Office of the Director of
National Intelligence, went to the White House to brief the new President
and Eric Holder, the new Attorney General, on the N.S.A.s programs.
There was no way to know how Obama would react. During the campaign, Holder,
who was serving as a top legal adviser to Obama, had said that Bushs
original surveillance program operated in direct defiance of federal
law. Obama had sponsored the legislation curbing the authority of the
business-records provision, which was now crucial to the N.S.A. Greg Craig,
Obamas White House counsel, was also at the meeting. Because Obama
had not been a member of the Intelligence Committee, much of the information
was new to him. Powell, who led the briefing, and Olsen also had some news:
the FISA court had just ruled that the
phone-records program had so many compliance issues that the court was
threatening to shut it down. The court was waiting for a response from the
new Administration about how to proceed.
Olsen had recently discovered that for the previous two and a half years,
the period when the phone-metadata program was supposed to have followed
strict new procedures laid out by the FISA
court, the N.S.A. had been operating it in violation of those
proceduresand had misled the court about it. The N.S.A. was supposed
to search its archive of metadata only after it had determined that there
was a reasonable, articulable
suspicionRASto believe that
the phone number or other search term was related to terrorism.
RAS was the thin wall between a legal program
with some oversight and one with the potential for domestic spying and tremendous
privacy violations. It was what prevented an analyst from querying the database
for his girlfriends personal information or for a Tea Party
activists network of contacts or for a journalists sources. Since
2006, in numerous filings before the FISA
court, the N.S.A. had falsely sworn that every search term was
RAS-approved. The agency had built a list
of some eighteen thousand phone numbers and other search terms that it
continuously checked against the metadata as it flowed into the N.S.A.s
servers. Of these, it turned out, fewer than two thousand had legal legitimacy.
Thousands of the unauthorized search terms were associated with Americans.
On January 15th, Olsen had informed the FISA
court of the problem.
Reggie Walton, the FISA judge overseeing the
program at that time, wrote, in an opinion on January 28th, that he was
exceptionally concerned that the N.S.A. had been operating the
program in flagrant violation of the courts orders and
directly contrary to the N.S.A.s own sworn
attestations. Walton was considering rescinding the N.S.A.s authority
to run the program, and was contemplating bringing contempt charges against
officials who misled the court or perhaps referring the matter to
appropriate investigative offices. He gave Olsen three weeks
to explain why the court shouldnt just shut down the program. The
controversy was known at the court as the big business
At the White House, Olsen and Powell told Obama of the problems. I
want my lawyers to look into this, Obama said. He pointed at Holder
and Craig. Olsen believed that the N.S.A. simply had difficulty translating
the courts legal language into technical procedures; it could all be
fixed. Wyden believed that the court never should have allowed the N.S.A.
to collect the data in the first place. In his view, the courts unusually
harsh opinion gave Obama an opportunity to terminate the program.
That was a very, very significant moment in the debate, Wyden
told me. Everybody who had been raising questions had been told, The
FISA courts on top of this! Everything
thats being done, the FISA court has
given the O.K. to! And then we learned that the N.S.A. was routinely
violating the court orders that authorized bulk collection. In early 2009,
it was clear that the N.S.A.s claims about bulk-collection programs
and how carefully those programs were managed simply were not accurate.
On February 17th, about two weeks after the White House briefing, Olsen,
in a secret court filing, made the new Administrations first official
statement about Bushs phone-metadata program: The government
respectfully submits that the Court should not rescind or modify the
authority. He cited a sworn statement from Keith Alexander, who had
replaced Hayden as the director of the N.S.A. in 2005, and who insisted that
the program was essential. Using contact chaining, Olsen wrote,
N.S.A. may be able to discover previously unknown telephone identifiers
used by a known terrorist operative . . . to identify
hubs or common contacts between targets of interest who were previously thought
to be unconnected, and potentially to discover individuals willing to become
US Government assets.
Judge Walton replied that he was still troubled by the N.S.A.s
material misrepresentations to the court, and that Alexanders
explanation for how they happened strains credulity. He noted
that the FISA courts orders have
been so frequently and systemically violated that it can fairly be said
that the N.S.A. program has never functioned effectively
and that thousands of violations occurred. The judge placed new
restrictions on the program and ordered the agency to conduct a full audit,
but he agreed to keep it running. Olsen, and Obama, had saved Bushs
It was the first in a series of decisions by Obama to institutionalize some
of the most controversial national-security policies of the Bush Administration.
Faced with a long list of policies to roll backtorture, the wars in
Afghanistan and Iraq, the use of the prison at Guantánamo Bay to hold
suspected terroristsreining in the N.S.A.s surveillance programs
might have seemed like a low priority. As core members of Al Qaeda were killed,
the danger shifted to terrorists who were less organized and more difficult
to detect, making the use of the N.S.A.s powerful surveillance tools
even more seductive. Thats why the N.S.A. tools remain
crucial, Olsen told me. Because the threat is evolving and becoming
Feinstein said, It is very difficult to permeate the vast number of
terrorist groups that now loosely associate themselves with Al Qaeda or Al
Nusra or any other group. It is very difficult, because of language and culture
and dialect, to really use human intelligence. This really leaves us with
The N.S.A.s assurances that the programs were necessary seemed to have
been taken at face value. The new President viewed the compliance problems
as a narrow issue of law; it was the sole responsibility of the
FISA court, not the White House, to oversee
the programs. Far too often, the position that policy makers have taken
has been that if the intelligence agencies want to do it then the only big
question is Is it legal? Wyden said. And if government
lawyers or the fisa court secretly decides
that the answer is yes, then the intelligence agencies are allowed to go
ahead and do it. And there never seems to be a policy debate about whether
the intelligence agencies should be allowed to do literally anything they
can get the fisa court to secretly agree
Any doubts about the new Administrations position were removed when
Obama turned down a second chance to stop the N.S.A. from collecting domestic
phone records. The business-records provision of the Patriot Act was up for
renewal, and Congress wanted to know the Administrations position.
It was one thing to have the Justice Department defend the program in court.
But now Obama had to decide whether he would publicly embrace a section of
the Patriot Act that he had criticized in his most famous speech and that
he had tried to rewrite as a senator. He would have to do so knowing that
the main government program authorized by the business-records provision
was beset by problems. On September 14th, Obama publicly revealed that he
wanted the provision renewed without any changes. At the time of the
U.S.A. Patriot Act, there was concern that the F.B.I. would exploit the broad
scope of the business-records authority to collect sensitive personal information
on constitutionally protected activities, such as the use of public
libraries, a Justice Department official wrote in a letter to Congress,
alluding to one of Obamas former concerns. This simply has not
occurred. The letter, which was unclassified, did not explain the details
of the metadata program or the spiralling compliance issues uncovered by
Wydens early hope, that Obama represented a new approach to surveillance
law, had been misguided. I realized I had a lot more to do to show
the White House that this constant deferring to the leadership of the
intelligence agencies on fundamental policy issues was not going to get the
job done, he said.