The Rights of the People (39 page)

Wright had done a profile of Zawahiri for
The New Yorker
and was contacted by the relative, an architect in Cairo, to ask “if I could learn whether all of Zawahiri’s children were dead.” The FBI told him erroneously that they were, Wright passed the misinformation to the relative, and the call was monitored and filed. “He’s a terrorist, or he’s associated with terrorists,” said Mike McConnell, director of national intelligence, when Wright told him the story. “Now, if I’m targeting, I’m looking at his number. If he places a call, I listen. If he gets called, I listen. I don’t know who is going to call him, but once I got it, I gotta deal with it. Turns out it is Larry Wright. You would have been reported as ‘U.S. Person 1.’ You would never have been identified, except if the FBI learns that this unidentified U.S. person is talking to a known terrorist. Then the FBI would go in and request the identity of U.S. 1. The NSA would have to go through a process to determine if the request was legitimate. So here’s what I think—I’m guessing. You called a bad guy, the system listened, tried to sort it out, and they did an intel report because it had foreign-intelligence value. That’s our mission.”
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The same was true of the domestic surveillance against civil rights activists, the Black Panthers, the Weathermen, and various antiwar organizers decades ago, recalled Jerry Berman, who worked for the American Civil Liberties Union. “They didn’t prevent zilch,” he said. “And the reason they didn’t prevent zilch is the FBI had records on everybody, and they didn’t know what was important.”

Captain Jeffery Herold, head of intelligence for the Washington, D.C., police department’s Office of Homeland Security and Counterterrorism,
told me the same thing when I asked if too much information was coming through. “Oh, my God. Turn it off. I’ll get three hundred e-mails a day,” so many that his unit does nothing about most of them. “We have to hire analysts to analyze it. If you get too much, which threat are you going to follow?” He wouldn’t say how they decide, except, “You look at what’s possible. Do those capabilities exist? Can they really fly airplanes into the World Trade Center?”

The ACLU has a favorite metaphor to describe the absurdity of trying to catch a terrorist through the insatiable collection of personal information on vast numbers of people: You don’t find a needle in a haystack by increasing the size of the haystack.

In its study of National Security Letters, the Office of the Inspector General attempted valiantly to portray their usefulness. They were called “indispensable” and “our bread and butter” by unnamed FBI officials who claimed that the information on phone, Internet, and financial records could connect groups and individuals with one another by following money and communications. Leads were generated for joint terrorism task forces and foreign governments, information was used to induce cooperation by suspects, and targets of investigations were exonerated by agents who closed cases more confidently after using NSLs to eliminate concerns.

Most examples supporting such claims, given by the Justice Department and the FBI, have been less than definitive. The inspector general found that twenty-seven of the forty-six FBI divisions studied had used NSL evidence to refer counterterrorism targets for prosecution, but because the FBI’s records were in disarray, it was impossible to document how effective the NSLs had been in those cases. Information in criminal files was not tagged as deriving from NSLs, and most charges labeled “terrorism” were actually for fraud, immigration offenses, and money laundering.

If those don’t sound like grave threats to national security, consider this: The median sentence under the “terrorism” rubric was twenty-eight days during the first two years after 9/11, dropping to twenty days through May 31, 2006. Furthermore, Justice Department attorneys declined to prosecute 67 percent of the “terrorism” cases brought to them by the FBI during the five years through 2008, an unusually high percentage that rose over time.
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Rachel Brand, a young right-wing ideologue who served as assistant attorney general in the Bush administration, made sweeping public
statements about the usefulness of FISA orders and NSLs in heading off terrorist attacks, promised me examples, and never delivered. Her spokeswoman, Kimberly A. Smith, was repeatedly waved off by superiors as she rummaged around in the thicket of the Justice Department for more than a year, and came up with nothing beyond press-release platitudes—no level of detail sufficient to permit true evaluations. Nor was an FBI spokeswoman, Angela Bell, able to find a good case after eight months of searching—at least not one the FBI was willing to cite as an example of FISA orders and NSLs that had prevented violence. (After she gave up trying, FISA surveillance led to the arrest of an Afghan immigrant, Najibullah Zazi, accused of buying chemicals to manufacture bombs; he pleaded guilty.)
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The dearth of obvious cases doesn’t necessarily mean that NSLs are ineffective, perhaps just that nobody in the FBI really knows how valuable they have been. The inspector general reported that National Security Letters were employed as an initial step in gathering skeletal evidence before applying for a secret FISA warrant from a judge. An investigation has to start somewhere, after all, and the NSL is a relatively easy instrument to use at the outset.

A more traditional tool, the grand jury subpoena, carries pluses and minuses from the FBI’s perspective. It can be issued quickly, but it requires enough cause for a grand jury to be convened. It is more likely to be obeyed promptly, the study found, but it can be leaked to the press and the public. And if a judge turns down a criminal warrant or subpoena, agents fear, courts may look askance if the FBI later seeks a FISA warrant or issues a National Security Letter. The judicial branch is evidently less offended if its oversight is evaded beforehand.

NSLs have been most useful in tracing finances. The FBI used them to get the bank records of convenience stores that were conduits for funds through the informal
hawaladar
transfer system to the Middle East, and allegedly on to al-Qaeda, the inspector general reported. The government opened fire with a broad battery of charges against storekeepers who had sent two individuals millions of dollars. Prosecutors replayed an old strategy: If you can’t get the Mafia boss on a murder charge, get him for tax evasion. The storekeepers were accused of “money laundering, sale of untaxed cigarettes, check cashing fraud, illegal sale of pseudoephedrine (the precursor ingredient used to manufacture methamphetamine), unemployment insurance fraud, welfare fraud, immigration fraud, income tax violations, and sale of counterfeit merchandise.”

Looking at credit reports, the FBI was also able to track the address changes of subjects in a terrorism investigation who were uprooted by Hurricane Katrina. And financial records established a connection between a prisoner in Guantánamo and the target of another investigation, who was then convicted of providing material support to terrorists.

Two successful financing cases were made by sharing information between intelligence and law enforcement on Mohammed Ali Hassan Al-Moayad, convicted in March 2005 and sentenced to seventy-five years for funneling millions to Hamas and al-Qaeda, and Enaam Arnaout, the executive director of the Illinois-based Benevolence International Foundation, who pleaded guilty to sending money to help rebels in Bosnia and Chechnya buy military supplies.
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But the Justice Department never offered persuasive details on how essential FISA orders or NSLs were in bringing these prosecutions, so the question remained whether ordinary criminal warrants and wiretaps, consistent with the Bill of Rights, would have been sufficient.

FISA orders and intelligence sharing were touted by the Justice Department as essential tools in a few dubious prosecutions. A Florida computer science professor, Sami al-Arian, was charged along with three co-defendants with supporting Palestine Islamic Jihad, which had killed more than one hundred people in Israel, including a young American woman. Sections 218 and 504 of the Patriot Act “enabled prosecutors to consider all evidence against al-Arian and his co-conspirators, including evidence obtained pursuant to FISA that provided the necessary factual support for the criminal case,” the Justice Department boasted.
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The evidence was so questionable, however, that a jury failed to convict any of the four, unanimously acquitting al-Arian on nine counts and voting ten to two to acquit on the remaining eight.

Federal prosecutors weren’t deterred. While al-Arian languished in prison, where he had spent more than three years, they threatened to retry him on those eight counts. To get out of jail and to get out of the country, he pleaded guilty to a lesser charge—conspiring to help people associated with the terrorist group—and accepted deportation (he was a Palestinian born in Kuwait). But when he appeared in court expecting to be released, a federal judge condemned him as a terrorist (as the jury had refused to do) and gave him the maximum sentence, which sent him back behind bars for an additional nineteen months, making fifty-seven all together.

Then, to turn the screws a bit more, federal prosecutors in Virginia summoned him before a grand jury to testify in another investigation, and
when he refused (in the belief that his plea bargain had not required his cooperation) he was cited for contempt of court and given another six months.

At the opaque end of the spectrum most distant from the Fourth Amendment, where searches and surveillance escape review by the judicial branch, the Bush administration stepped far outside the law—even the most permissive law—to enlist the National Security Agency in broad sweeps of electronic communications. There were no established legal ways to do so: no wiretap warrants, no National Security Letters, no classified orders under the Foreign Intelligence Surveillance Act.

In the panic following September 11, 2001, the White House—understandably eager to learn everything possible about future plots of terrorism—had the CIA director, George Tenet, ask the NSA director, Michael V. Hayden, what more interception and surveillance the NSA could do. Nothing more within existing authority, Hayden replied. And if he had more authority? Hayden answered by assembling a description of the NSA’s “operationally useful and technologically feasible” capabilities, which became the basis of Bush’s secret plan.
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The program was not designed to fit within the law; instead, the law was interpreted—and then ultimately revised—to accommodate the program.

Under instructions from Vice President Dick Cheney’s office, a zealous young lawyer in the Justice Department, John Yoo, concocted arguments that were later derided by some who saw his classified memo—a “legal mess” in the words of Jack Goldsmith, who found the sloppy work when he took over the Justice Department’s Office of Legal Counsel.
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Yoo had contended that the president’s constitutional powers as commander in chief conferred the authority, bolstered by the congressional authorization of force following 9/11, to ignore the FISA statute and eavesdrop without applying first to the FISA court. As self-serving as the reasoning was, the program’s chief architect, Cheney’s counsel David Addington, refused to let NSA officials see the legal opinion supposedly justifying their activities—a bizarre turn even for that White House.
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Convinced that the impediments of FISA and its court put the country at risk, Addington told Goldsmith during a contentious meeting in February 2004, “We’re one bomb away from getting rid of that obnoxious court.” Goldsmith, a conservative himself, seemed stunned by Addington’s contempt for the law. “He and the vice president had abhorred FISA’s intrusion
on presidential power ever since its enactment in 1978,” Goldsmith wrote. “After 9/11 they and other top officials in the administration dealt with FISA the way they dealt with other laws they didn’t like: They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations.”
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The NSA, so secret it’s sometimes called “No Such Agency,” was created in 1952 primarily as a cryptographic enterprise to invent and break codes. Only a tiny facet can be seen by the public, at its museum of cryptography adjacent to its headquarters in Fort Meade, Maryland, halfway between Washington and Baltimore. A glass case in the museum’s entrance holds a large, jagged chunk of the Pentagon where it was struck on 9/11 but nothing else from the current era. It has displays of outdated code machines from the two world wars, the Korean War, and the Vietnam War, but that’s where history ends, as if the recent past is itself a secret. From the roadway to the museum, you can see the agency’s bunker-like concrete buildings and the two newest structures, block shaped, which look as if they are made of blue-green glass. They appear deceptively transparent.

When Bush visited the NSA in September 2007, reporters noted a tough-minded sign on a wall: “We Won’t Back Down. We Never Have. We Never Will.”
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Evidently not. Led by a military officer, the agency was designed to spy on communications overseas but was secretly driven off course by one president after another to monitor domestic antiwar activists, civil rights organizers, Black Panthers, and other dissident Americans during COINTELPRO and other surveillance programs of the 1950s, 1960s, and 1970s. NSA officials were uncomfortable with those assignments, recalled Jerry Berman, who worked to end warrantless wiretapping as chief legislative counsel for the ACLU when the Foreign Intelligence Surveillance Act was passed. “Of all the agencies that wanted to get this right,” he said, “NSA was the leader at the time. The culture of the Justice Department was [J. Edgar] Hoover. NSA was created on a different front, less ideological, more interested in real espionage, and I think they felt burned by having been asked to participate in this program.”

Once FISA was enacted, the NSA on its own was not supposed to eavesdrop on communications involving anyone inside the United States. If one party to an international phone or Internet exchange turned out to be on American soil, a warrant was sought from a FISA judge. Say someone in Yemen, suspected of links to al-Qaeda, phoned or e-mailed someone in Los Angeles. Communications within Yemen or between
Yemen and another foreign country lay outside FISA’s jurisdiction and could be monitored by the NSA at will. But as soon as the traffic entered the United States, FISA kicked in, requiring a secret warrant. That wasn’t hard to get if there was enough contact for the government to show probable cause that the L.A. party was a foreign agent. If speed was essential, FISA’s emergency provision authorized monitoring first—an approval often issued in minutes—and then an application to a judge within three days.