The Watchers (50 page)

But McConnell also thought that if the administration didn't handle this program delicately, it could backfire. At some point they'd have to face the far more daunting question of how to guard against
domestic
cyberthreats. That would mean rewriting privacy laws and enacting a slew of regulations, and having a public debate that would make the Clipper chip look like an academic discussion. But that was a battle for another day, and maybe another intelligence director.

It took ninety days for McConnell, the White House, and the intelligence community to come up with a plan for the president. Bush signed an executive order giving the NSA the go-ahead to stand guard on the Internet gateways. The plan was eventually dubbed the Comprehensive National Cybersecurity Initiative. Initial estimates pegged the price tag of a full defense system at tens of billions of dollars. A second component called for slashing the number of Internet gateways used by civilian government agencies from more than a thousand down to fifty. From the outset the plan was so ambitious and complex that it was guaranteed to outlast Bush's presidency. It was an unprecedented reach of authority for what McConnell thought was an unprecedented threat. The spy chief truly believed that he had protected the rule of law and the security of the nation. But another fight, one that McConnell had in some ways been preparing for his entire professional life, would finally test the balance between those often competing interests.

 

McConnell was more familiar than most spies with the Foreign Intelligence Surveillance Act, but he hardly knew the law inside and out. That was because, as director of the NSA, he had rarely used it. Most of the agency's work was directed at foreign targets—non-U.S. persons located overseas. FISA came into play when the government wanted to monitor people inside the country.

The 9/11 attacks had turned that arrangement on its head. McConnell knew from the
New York Times
that his old agency was in new waters. The president's secretive terrorist surveillance program had become a public spectacle, and it had imperiled both the NSA and the administration. As McConnell prepared to return to government, it was his opinion that Bush had not been well served by the framing of the program in its early stages. The more appropriate step, he thought, would have been for administration officials to work with Congress to amend FISA back in 2001, at the same time they were making changes to surveillance rules through the Patriot Act. That sweeping piece of legislation passed with near unanimous agreement in Congress. There was every reason to believe that lawmakers would have been equally accommodating with FISA.

McConnell considered himself a civil libertarian. He grew up in segregated South Carolina, where his father was a union organizer and an outspoken progressive. Black men and women were frequent guests at the McConnells' dinner table, which probably couldn't be said about most of the other families in the neighborhood. And the conversations around that table were filled with the father's advice to the son; how he should be thinking about the world around him, whom he should be emulating. Once, while driving with his dad in Greenville, McConnell looked up at a billboard on the side of the highway: “Impeach Earl Warren,” it read.

“Dad, who's Earl Warren?”

“He's the chief justice of the Supreme Court.”

“Well, why do they want to impeach him?”

“Because he's for integration.”

Throughout the South “wanted” posters of Warren proclaimed him “a dangerous and subversive character” at whose “instigation federal marshals and bayonet-equipped federal troops have been employed to terrorize and intimidate white citizens opposed to his integration decrees.” As far as McConnell's father was concerned, the chief justice was probably the kind of man his son should try to be. Courageous. An unapologetic arbiter of the law. As McConnell got older and went off to college, Justice Hugo Black became one of his heroes for his stance on integration, expressed most famously in the unanimous
Brown v. Board of Education
decision. Black was a paradox to McConnell, and an unlikely champion for civil rights. As a young politician in Alabama, he'd joined the Ku Klux Klan to win votes, and in the Senate he'd participated in filibusters of antilynching bills. But Black eventually disavowed his former affiliations, and on the Court he distinguished himself as a literalist, a strict interpreter of the Constitution and an ardent supporter of the rule of law. That endeared him to McConnell, who prided himself as possessing those same qualities.

McConnell's bedrock values were shaken when, as a young intelligence officer, he had learned that the FBI had secretly tapped the phones of both Warren and Black, under orders from bureau director J. Edgar Hoover. It was a searing experience. McConnell would later tell people that “my community” had spied on two men he admired because of how they thought and what they said. Intelligence was McConnell's trade, but it could be a rotten business. By the time he took over at the NSA, he was well acquainted with the agency's own dark days, as was the nation. For thirty years NSA analysts had received daily copies of international telegrams sent to and from the United States. The covert program, known as Operation Shamrock, was believed to have collected 150,000 messages per month at its peak. The NSA had access to almost all the international telegrams of Americans. In scenes reminiscent of the days after 9/11, representatives from the Army Signals Security Agency, the NSA's predecessor, approached telegraph companies in August 1945 asking for access to their traffic and their facilities. The companies' lawyers advised that such interceptions would be illegal in peacetime, but executives agreed to participate after they received the personal assurances of the attorney general, and later the president, that their participation was in the highest interest of national security, and that the companies would be protected from lawsuits should the secret ever get out. The government told the executives that the program was only monitoring foreign targets, but Americans' communications were routinely swept up and disseminated throughout the intelligence community. Some Americans' names ended up on “watch lists” of political undesirables. The watching didn't stop until 1975, when Shamrock was exposed in a wave of hearings on intelligence abuses, the same hearings that led to the passage of FISA.

McConnell was schooled in these scandals, as were all intelligence officers of his generation. The mistakes of the past formed a kind of baseline for how to conduct operations. Targeting Americans for political purposes was forbidden. When officers said that the intelligence community “didn't spy on Americans,” that's usually what they meant. Targeting Americans because they might be terrorists, however, was never out of bounds. FISA had been created to allow such surveillance and to keep it under the rule of law. But after 9/11 the law failed, both as a check on unlimited executive power and as a tool that the government could use to successfully monitor threats. McConnell thought that FISA had to be fixed, as part of a fundamental overhaul of the intelligence community. He outlined his vision in an essay for
Foreign Affairs
magazine. Channeling his former colleague John Poindexter, McConnell declared that the agencies should jettison archaic techniques and laws. The walls that had separated foreign and domestic intelligence were coming down, and now was the time to finish the job. “Sticking rigidly to these historical distinctions would be a serious impediment to protecting U.S. national security,” McConnell wrote. He called for more investment in cutting-edge technologies “to access and process vast amounts of digital data to find terrorist-related information.” He praised efforts being run by the outfits now under his command that took over TIA. And he took on the unresolved debate over when, and how, to spy on Americans, casting it as an integral part of the intelligence community's evolution. “Another challenge is determining how and when it is appropriate to conduct surveillance of a group of Americans who are, say, influenced by al-Qaeda's jihadist philosophy. On one level, they are U.S. citizens engaging in free speech and associating freely with one another. On another, they could be plotting terrorist attacks that could kill hundreds of people. . . . The intelligence community has an obligation to better identify and counter threats to Americans while still safeguarding their privacy.”

As McConnell saw it, amending FISA would be the first and perhaps most important step. The law had been tweaked in the past. But Congress had never undertaken a fundamental revision to bring the law in line with twenty-first-century technology. McConnell wanted a crack at that. But while he was preparing for his confirmation hearings, the administration did an about-face on warrantless surveillance, one that seemed to render the debate over amending FISA moot.

On January 10, 2007, a judge on the secretive FISA Court issued orders that essentially blessed much of what the administration had already been doing under its own authority. Without revealing any technical details of the arrangement, Attorney General Alberto Gonzales wrote to the Judiciary Committee a week later and said that the administration had submitted the program to court review. It was now operating under the supervision and authority of a judge.

Gonzales asserted that as early as the spring of 2005, well before the
New York Times
blew the NSA's cover, the administration had been looking for some way to bring its secret operation before the court and still maintain “the speed and agility necessary to protect the nation from Al Qaeda.” Now, Gonzales said, they'd found their solution. Gonzales never mentioned whether the Democrats' recent takeover of Congress might have motivated the administration to move with particular haste, so as to avoid an onslaught of oversight hearings and investigations.

The judge's orders, Gonzales wrote, were “innovative” and “complex.” It had taken “considerable time and work” for the administration to come up with an approach that would meet its needs and still pass judicial muster. The White House press secretary acknowledged that the NSA program “pretty much continues.” And a senior Justice Department official told reporters that neither the “objectives” nor the “capabilities” of the program had changed because of the judge's orders. Problem solved.

Not quite. Five months later, in May, those innovative orders came up for a planned review, but this time with another judge from the eleven-member panel. And unlike the first judge, who had given the administration the latitude it wanted, this one rejected a significant part of the arrangement that had been struck in January. Specifically, he told the administration that whenever it was monitoring communications passing through a piece of equipment in the United States, regardless of
who
was being targeted, FISA applied. Bush officials were shocked.

The judge had homed in on one of the clearest examples of how outdated the law had become. When FISA was written it didn't envision the global telecom system of 2007, in which much of the world's phone call, e-mail, and other telecom traffic moved over equipment based in the United States. A phone call or an e-mail from Pakistan to Turkey probably wound its way through New York. America was the world's communications hub. That meant the NSA could monitor foreign communications without ever leaving home.

The administration thought it had every right to grab those calls and e-mails without a warrant, as it had been doing under the terrorist surveillance program. And officials had strong arguments in their favor. Some FISA experts, including those who had served in Democratic administrations, had said for years that the capture of purely foreign communications like this didn't require a warrant. But now a judge had found otherwise. And when he issued his new orders, the intelligence community was cut off from what it considered one of its most dependable and useful streams of intelligence.

McConnell went to the Hill. In classified briefings during June and July, he explained the judge's ruling to members of Congress. Sometimes in small meetings, and at least once to a packed house of more than three hundred members, McConnell said that foreign-to-foreign collection in the United States had been stopped. The intelligence harvest had plummeted. To explain how this had happened, McConnell would lay out a map of the world overlaid with red lines representing the “pipes” that moved phone and Internet traffic. They all converged on the United States, forming a thick red mass on both coasts. The country looked like a heart, with arteries trailing off into thin capillaries that fed the globe.

The terrorism early-warning system depended on access to those lines. There was no longer a question in McConnell's mind that FISA had to be fixed immediately. “We're in extremis,” he told lawmakers.

The judge had issued a thirty-day stay on his ruling, which bought the administration some time to mount a public campaign. On May 21, McConnell published an op-ed in the
Washington Post
. Without revealing the classified order, he laid out the basic problem: “In a significant number of cases, our intelligence agencies must obtain a court order to monitor the communications of foreigners suspected of terrorist activity who are physically located in other countries.”

Had McConnell publicly announced that the intelligence community could no longer monitor a huge portion of international communications, terrorists might have tried to exploit that gap. The debate over fixing FISA never questioned that assumption. But changing the law was never about the narrow question of foreign-to-foreign communications. It was about the balance of power, which, as far as many lawmakers were concerned, the Bush administration had abused. They weren't about to be pressured into a hasty rewrite of the law in the face of dire warnings from the administration. They'd heard this kind of doomsaying before. The administration could always be counted on to exaggerate a threat when it wanted to have its way. The FISA debate was going to move, but slowly.