The Watchers (26 page)

Yoo apparently had overlooked both law and the legislative history of FISA, which clearly established that Congress had intended the law to be a check on the president's surveillance powers. A separate wiretapping statute declared that when it came to foreign intelligence gathering, FISA was in control. Transcripts of the debates about the law, as well as statements by lawmakers at the time, affirmed this was their intention. Whether or not Yoo grasped this history, or whether he was acting as a zealous attorney looking for the narrowest and still reasonable interpretation of the law for his client, the White House determined that Bush had the authorities he needed.

That fit squarely in the worldview of both Dick Cheney, the vice president, and his chief legal adviser, David Addington. Both men believed that since the Watergate scandal, Congress had slowly but successfully chiseled away the president's most fundamental powers. They'd nurtured that view throughout the crucible of the Reagan years, when Congress and the executive had gone toe to toe in that most sanctified of presidential domains, national security. Addington, then a congressional staffer, and Cheney, a congressman from Wyoming, articulated their philosophy in the “minority report” of the congressional Iran-Contra commission, of which they were among the principal authors. Both men believed that lawmakers once again had strayed well beyond their brief in trying to micromanage the executive:

President Bush didn't need FISA, and he didn't need Congress. The FISA warrants process would impede the swift, hot pursuit approach that Hayden had laid out. The NSA would be bogged down in paperwork while potential terrorists slipped through their digital nets. They would bob and weave through the network, switching phones, using different e-mail accounts to cover their tracks. If the agency had to wait for a federal judge to issue a warrant for each and every suspect who appeared, the NSA might as well just stop trying to track them at all and devote its resources to more productive ends.

On October 4, just three days after Hayden appeared before Pelosi and the House Intelligence Committee, Bush granted the authority for the NSA to design the surveillance system Hayden had described. The NSA now had the power to target anyone it reasonably suspected was a terrorist, or their associates, regardless of their location. One rule applied: At least one party to the communication must be located outside the United States. Under these new orders the NSA had the power to target Americans inside the country without warrants. The lines on the field had just been redrawn. The definition of foreign intelligence now encompassed Americans' phone calls and e-mails.

Hayden had gotten what he asked for. The three pillars were aligned. The math added up. He had a chance to say no, to send the authorities back. It was his call. But given the stakes, and the backing he'd received, he decided to proceed.

Hayden was a Catholic, and he believed in the proportionality of war. There was a balance to strike between force and the good that could come of it. He laid the facts as he knew them on the table. The United States had been savagely attacked. He believed he could take reasonable action to stop another atrocity. And the president had given him the authority to act.

I can't
not
do this
, Hayden told himself.

Whether he needed the commander in chief 's blessing or could have continued working under his existing authorities, probably only a judge could decide. But that was a question Hayden didn't need to answer. The president of the United States had just given him the ultimate cover.

In time, the NSA's surveillance system went by various names within the tiny circle of officials who knew it existed. Officially, it was code named Stellar Wind. Some just called it the president's program. But inside the labs and idea factories of the agency's formidable technology team, the terrorist hunting machine had another name.

They called it the Big Ass Graph.

 

 

 

 

Bob Popp had always wanted to work for DARPA, but the right job had yet to come along. In January 2001 he joined a smaller version of the futuristic brain trust—the Pentagon's Advanced Systems and Concepts Office. It was full of big thinkers, people of outsized intellectual ambition, like him. But they set their sights on more practical ideas than their fellows at DARPA. More near-term payoff, less pie in the sky.

For Popp, a thirty-eight-year-old technologist and freshly minted civil servant, it was a respectable position with a résumé-burnishing title—assistant deputy undersecretary. In Washington, that counted for something.

Popp's new job put him at the center of the action. Each year the advanced systems office vetted roughly a hundred new research proposals for concepts and technologies that needed Defense Department funding. Popp was asked to “rack and stack” the proposals, vetting and ranking them to help his bosses decide on a final list of candidates that should be considered for precious dollars. But to his great disappointment, the current stack was bland and conventional.

Popp saw plans for making airplanes fly faster and for making tanks more rugged. But there was no novelty to any of it. He had spent the past three years with a defense contractor, helping the Air Force develop new tracking methods for ground targets, creating “situational awareness,” in military parlance, for airborne missions. Far more ambitious stuff, he thought. Just making things go boom and bang gave him limited satisfaction.

As Popp read the hundred or so proposals, he also saw nothing that rose to the challenge just put forward on January 31 by a blue-ribbon panel of experts. The group had been convened to draft a road map for national security in the twenty-first century. Chaired by former senators Gary Hart and Warren Rudman, it bleakly concluded that the country had overlooked the dangers to the American “homeland” in the fallout of the cold war.

“The combination of unconventional weapons proliferation with the persistence of international terrorism will end the relative invulnerability of the U.S. homeland to catastrophic attack,” they wrote. “A direct attack against American citizens
on American soil
is likely over the next quarter century.” Their italicized emphasis was a clarion call: If you read nothing else in the report, read this.

The authors recommended that the recently inaugurated President Bush create a national homeland security agency to harness the nearly two dozen federal entities that played a role in domestic protection. Popp thought it was a brilliant idea, and something that his office should pay attention to. Finding nothing with a homeland angle in the pile of proposals on his desk, he decided to write one himself.

Popp took his cues from the Hart-Rudman commission, dubbing his idea “Homeland Security Command and Control.” He had three goals, all aimed at deficiencies the commissioners had identified: expand the flow of security information between foreign and domestic counterterrorism agencies, especially the FBI and the CIA; create better command and control systems for federal, state, and local governments, since the latter two were really the front lines of domestic defense; and beef up communications for so-called first responders—police, fire, and rescue personnel who'd be sent into the breach during an emergency.

Popp was a systems thinker, and he intuitively grasped that all those moving parts had to move together. He thought that one new tool, or an improvement on an existing technology, would yield but incremental progress. What the world needed now was a big step forward. He threw his proposal into the mix. And after others winnowed down the list to about twenty ideas worthy of funding, his ranked near the top.

In early September 2001, near the end of the government's fiscal year, the candidate proposals were circulated among potential sponsoring organizations throughout the Defense Department. Only a few days later Popp's idea looked eerily prescient. After the disaster of 9/11, the phrase
homeland security
quite suddenly was in vogue.

A few weeks later, in mid-October, Popp showed up for work one morning and found an e-mail from a name he vaguely recognized—John Poindexter. Why did it sound so familiar? he wondered. Popp searched his memory; the best he could recall was something about a political scandal. Years ago, maybe.

In his e-mail Poindexter explained that he had read Popp's proposal. He was setting up a new program at DARPA that would be involved in similar research, and he needed a deputy. Someone to help him run the office. If Popp was interested in the job, they should meet.

Before he responded Popp tapped Poindexter's name into a search engine. He tried “Poindexter and Watergate,” and although that string came up empty, he eventually landed on the correct inglorious chapter of history.

In 1981, the year Poindexter went to the White House, Popp was nineteen years old. He joined the Air Force, and while the admiral was fighting for his future in a congressional hearing room, Popp was repairing airplanes. He was a kid at the beginning of his career, with a blossoming family. Looking back on Iran-Contra, Popp only recalled seeing some of the hearings on television, and he couldn't remember many of the details.

Popp replied to Poindexter's e-mail. “I'd love to meet.”

 

Mary McCarthy told Poindexter he was nuts. In the kindest way she knew how, of course. But what was he thinking?

McCarthy was one of the first to hear of Poindexter's return to government, after so many years on the outside. He was going to DARPA, he said, to lead a new group called the Information Awareness Office. TIA would be the centerpiece but not the only research thrust.

McCarthy was incredulous. “No, John!
You're
going to do this? No.”

“Yes, I am,” Poindexter replied resolutely.

She couldn't shake the feeling that her friend was heading for rough water.

McCarthy and Poindexter were cut from distinct partisan cloths, but she had come to admire him, even emulate him, and she wanted to protect him. Power had changed hands in Washington, back in Poindexter's favor. But old memories persisted. She feared that his past would catch up with him and overshadow all the good she thought he could do with TIA.

Still, she could hardly fault him for fighting. McCarthy had not, and would not, forgive herself for what she thought she'd failed to do before the attacks. Her brightness and her smile were thin gauze on a deep wound. Now Poindexter intended, in some way, to make amends for all that. How could she tell him not to try?

McCarthy considered herself an ardent civil libertarian, and she held out the possibility that her friend's work on behalf of the free world might constitute a threat to freedom. But there had to be a way to balance security and liberty, she thought. There was a rational answer to this equation. If anyone could find it, she believed it was Poindexter. He had the will. Once he set his mind to a problem, he wouldn't be dissuaded. McCarthy hoped that those who didn't know him as well as she would view him as charitably. At the very least, she thought, he needed a major public relations campaign.

Poindexter didn't want to hang around DARPA for long. He planned to serve as director of the Information Awareness Office for about a year, enough time to get TIA and its related programs on their feet. Then he'd hand it all over to a permanent manager. Maybe Popp would be that man; Poindexter had to meet him first.

Poindexter thought Popp had crafted an exceptional proposal. A bit more geared toward crisis management than preemption, but he found the writing so superb that he wanted to meet the man behind it. Two weeks after their first e-mail contact, Popp came to a job interview at DARPA headquarters. Their scheduled one-hour meeting stretched on for two more.

Poindexter didn't fit Popp's expectations at all. He was warm, courteous, easy to talk to. After he'd boned up on Poindexter's past, Popp imagined an imposing giant, quick to cut him down. But instead he felt that he'd found a reflection of his own father. As a child, few things made Popp happier than to build something with his dad. “Let's go build a porch,” his father would say. The elder Popp drew up the plans and his son did the hammering. One designer, one implementer. Popp sensed that Poindexter needed someone who was good with a hammer.

Poindexter liked what he saw. Popp was a young hard charger, with a palpable energy. He was bright and came equipped with a military background and a PhD in computer science. This wasn't so far afield from Poindexter's own experience, even if Popp was an Air Force man, a sin for which the admiral agreed to forgive him. Poindexter had always trusted his sense about people, and now it told him he'd found a winner.

Poindexter wasted no time bringing Popp into the fold. He pulled out his TIA presentation materials and described how he wanted the overarching Information Awareness Office to function. Popp thought that it all looked strong, but certain words Poindexter used to describe his efforts seemed politically supercharged.

In one chart Poindexter used “profiling” to describe a method of screening particular individuals for terrorist characteristics. “That seems to be a little delicate,” Popp said. “That word ‘profiling' is a hot button, loaded term. We may want to consider not using it.”

Popp was unsure how Poindexter would react to such a presumptuous remark. He hadn't even landed the job yet.