The Foreign Intelligence Surveillance Act of 1978 is such a law; it was enacted to end years of routine wiretapping of American citizens who had attracted official attention by opposing the war in Vietnam. The express purpose of the act was to limit what presidents could ask intelligence organizations to do. But for limits on presidential power to have meaning Congress and the courts must have the fortitude to say no when they think no is the answer.
In public life as in kindergarten, the all-important word is no. We are living with the consequences of the inability to say no to the President’s war of choice with Iraq, and we shall soon see how the Congress and the courts will respond to the latest challenge from the White House—the claim by President Bush that he has the right to ignore FISA’s prohibition of government intrusion on the private communications of Americans without a court order, and his repeated statements that he intends to go right on doing it.
Nobody was supposed to know that FISA had been brushed aside. The fact that the National Security Agency (NSA), America’s largest intelligence organization, had been turned loose to intercept the faxes, e-mails, and phone conversations of Americans with blanket permission by the President remained secret until the New York Times reporters James Risen and Eric Lichtblau learned over a year ago that it was happening. An early version of the story was apparently submitted to the Times‘ editors in October 2004, when it might have affected the outcome of the presidential election. But the Times, for reasons it has not clearly explained, withheld the story until mid-December, when the newspaper’s publisher and executive editor—Arthur Sulzberger Jr. and Bill Keller—met with President Bush in the Oval Office to hear his objections before going ahead. Even then certain details were withheld.
What James Risen learned in the course of his reporting can be found in his newly published book State of War: The Secret History of the CIA and the Bush Administration, a wide-ranging investigation of the role of intelligence in the origins and the conduct of the war in Iraq. Risen contributes much new material to our knowledge of recent intelligence history. He reports in detail, for example, on claims that CIA analysts quit fighting over exaggerated reports of Iraqi weapons of mass destruction as word spread in the corridors at Langley that the President had decided to go to war no matter what the evidence said; that the Saudi government seized and then got rid of tell-tale bank records of Abu Zubaydah, the most important al-Qaeda figure to be captured since September 11; and that “a handful of the most important al Qaeda detainees” have been sent for interrogation to a secret prison codenamed “Bright Light.” One CIA specialist in counterterror operations told Risen, “The word is that once you get sent to Bright Light, you never come back.”
Digging out intelligence history is a slow process, resisted by officials at every step of the way, and Risen’s work will be often quoted in future accounts of the Iraq war. But nothing else in Risen’s book rivals the NSA story in importance, revealing that the President authorized the NSA not only to eavesdrop on Americans without seeking court orders, but to listen in a new way, by intercepting a large volume of communications among categories of people, and then analyzing or “mining” the data in those calls for suspicious patterns that might offer “potential evidence of terrorist activity.”
“This is the biggest secret I know about,” one official told Risen. The eavesdropping effort is technically known as a “special access program” (SAP), which means that its existence and the information it collects are both tightly held. Within the government, Risen tells us, witting officials referred to it simply as “the program,” and even the legal opinions justifying it are classified. Risen traces the origins of the program back to the brief war that overthrew the Taliban government in Afghanistan and resulted in the capture of many al-Qaeda suspects along with their cell phones and computers. These suspects had been calling and e-mailing people throughout the world, many of whom, inevitably, were in the United States, raising understandable fears of new terrorist attacks. But according to Risen, the NSA does not limit itself to monitoring numbers provided by the CIA from captured al-Qaeda phone books, targets for which there is some degree of “probable cause” to think they might be terrorist-connected. Those phone numbers provide only the jumping-off point for the program. The NSA has since broadened its effort by establishing “its own internal checklist” to pinpoint phone numbers and addresses of interest, and it is likely that the items on the list are checked off by a computer program in a nanosecond, not by analysts exercising deliberate judgment.
How big is the target list? At any given moment, Risen believes, the NSA may be “eavesdropping on as many as five hundred people in the United States….” But his number of five hundred should not be interpreted as an outer limit. The actual volume of intercepted calls is almost certainly a very great deal larger, going beyond communications between known, named persons. Modern eavesdropping seldom mirrors the classic wiretap of yesteryear when FBI agents with earphones might record hundreds of hours of a Mafia chief chatting with his underboss in New York’s Little Italy. The idea now is to see if anyone on the phone in New York or New Jersey sounds in any way like a Mafia chief. A dinner of linguine with clams in a known Mafia hangout could be enough to warrant a further look. The al-Qaeda phone book numbers were the crack in the door; follow-up targets are simply numbers or e-mail addresses, leading to other numbers and e-mail addresses, all plucked from the torrents of traffic transmitted by the switching systems of the major American telecommunications companies, which daily handle two billion phone calls and perhaps ten times as many e-mail messages. What Risen discovered, in short, was a program best described as “big.”
Under existing law the NSA should have sought permission from the secret FISA court in Washington before listening in on the communications of any “US persons”—basically, American corporations, citizens, and others lawfully inside the United States—who had turned up in al-Qaeda phone books and directories. The law makes provision for emergencies: if investigators feel they don’t have time for legal rigmarole they can act first and then seek permission within the following three days. This was not done. President Bush insisted on New Year’s Day that “this is a limited program… it’s limited to calls from outside the United States to calls within the United States. But they are of known—numbers of known al-Qaeda members or affiliates.” But it seems clear that the NSA program quickly spilled beyond its original limits; the real reason for ignoring the FISA courts is probably a savvy guess that the courts would not approve what the administration wants to do.
Listening to specific persons was only part of it, and not the greater part. What Risen learned, which has been backed up by other press accounts in recent weeks, is that the counterterror investigators from the beginning wanted to cast the net wide—to listen to all the people in the al-Qaeda phone books, and then broaden their search to the still wider circle of people the phone book names were in touch with, and go on to check out all their contacts as well. If the first generation of targets numbered a hundred, let’s say, and each of them had been talking to a hundred people in a second generation of targets, then even a third-generation search could easily sweep up a million people. You can see why investigators desperate to prevent any repetition of the attacks of September 11 would have favored this rapid and wide casting of the net, but that sort of industrial-scale fishing expedition is exactly what the FISA courts were established to prevent.
In the days after the Risen–Lichtblau story first appeared, President Bush, Attorney General Alberto Gonzales, the head of the NSA at the beginning of the program, General Michael Hayden, and others all defended the program as urgent, successful, justified by acts of Congress and the President’s powers under the Constitution, sharply limited in scope, approved by members of Congress who had been briefed on the program, and carefully managed to protect the civil liberties and other rights of Americans.
“The whole key here is agility,” said General Hayden.
“What we’re trying to do is learn of communications, back and forth, from within the United States to overseas members of al-Qaeda,” said Gonzales. “That’s what this program is about. This is not about wiretapping everybody. This is about a very concentrated, very limited program focused on gaining information about our enemy.”
“Dealing with al-Qaeda is not simply a matter of law enforcement,” President Bush said in a press conference on December 19.
It requires defending the country against an enemy that declared war against the United States…. So, consistent with US law and the Constitution, I authorized the interception of international communications of people with known links to al-Qaeda and related terrorist organizations…. Leaders in the United States Congress have been briefed more than a dozen times on this program…. I’ve reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for so long as…the nation faces the continuing threat….
The President’s carefully worded statement casts a troubling new light on his insistence that we are fighting a “war on terror” and that he is a “wartime president.” Constitutional lawyers have long argued about the limits of presidential or executive power, but all agree that the limits are more elastic in wartime, and it is increasingly evident that the Bush administration has treated this distinction as a barn door. The shock caused by the revelation of the NSA program is not centered on concern for the civil liberties of al-Qaeda terrorists but on the scale, still unknown, of the eavesdropping authorized by the President; on his refusal to use the courts or seek any change in the governing laws; and on his blanket claim that Article Two of the Constitution gives him, as president and commander in chief of the armed forces, both the responsibility for defending the country and “the authority necessary to fulfill it.”
Even some Republican leaders find this broad claim troubling. Senator Arlen Specter, chairman of the Senate’s Judiciary Committee, has announced that he will hold hearings on the NSA program. “I am skeptical of the attorney general’s citation of authority, but I am prepared to listen,” he said in December. “You can’t have the administration and a select number of members [of Congress, those briefed by the White House] alter the law. It can’t be done.”