The Watchers (53 page)

“There is this great debate over whether or not the telecom companies should in fact be given immunity for their agreement to provide support and cooperate with the government after 9/11,” Brennan said. “I do believe strongly that they should be granted that immunity, because they were told to do so by the appropriate authorities that were operating in a legal context, and so I think that's important. And I know people are concerned about that, but I do believe that's the right thing to do.”

There was no gray area there. Brennan believed “strongly” in a position that his candidate was ready to filibuster in the Senate. The “appropriate authorities were operating in a legal context.” Alberto Gonzales had said the same thing. So had Mike McConnell. Brennan didn't just say that immunity was the legally sound policy. Or the most politically expedient. It was the “right thing to do.” He came at the question with the mind and the heart of a spy. Brennan was a seasoned, clandestine operator. He knew as well as any of his veteran colleagues that without the telecom companies the intelligence community would be lost on a digital sea. They weren't just a resource. They were partners. They were friends. And you didn't abandon your friends.

Brennan wasn't alone in this view. Many former high-ranking intelligence officials had come out in favor of immunity. But they weren't advising Barack Obama. At times in the interview Brennan channeled the critique that McConnell, Poindexter, and Hayden had made for so many years. The intelligence agencies had to be able to collect terrorist signals quickly, he said. “We shouldn't be held hostage to a complicated, globalized information technology structure that puts up obstacles to that timely collection. I think there are some very, very sensible people on both sides of the partisan divide trying to make this happen. And it's unfortunate that it's become embroiled now in a partisan debate in some quarters.”

When asked what advice Brennan had for the next president, he suggested that “they need to spend some time learning, understanding what's out there, inventorying those things, and identifying those key issues or priorities that they have—FISA or something else. They need to make sure they do their homework, and it's not just going to be knee-jerk responses.”

Brennan's expansive remarks infuriated the Netroots. The liberal-progressive blog ThinkProgress.org posted a link to the interview accompanied by an unflattering picture of Brennan in which he appeared to be snarling. “Brennan makes it clear that he agrees with the Bush administration,” the post read. “Obama needs to seriously dump this dude,” one reader commented. Others in the Netroots questioned whether the candidate was exerting enough control over his advisers, particularly after the campaign issued a statement in response to Brennan's interview that put the two men at odds: “Senator Obama welcomes a variety of views, but his position on FISA is clear. He and Brennan differ.”

Four months passed. The Democrats' resolve to stand tall against telecom immunity and expansive surveillance authorities had withered. On the afternoon of July 9, the Senate took up a bill already passed in the House. Dubbed the FISA Amendments Act, it aimed to fix the surveillance law once and for all, and like its predecessor, it enshrined most of the powers that the Bush administration had sought. The bill included immunity for telecoms, and it gave the government broad authority to monitor communications outside the traditional search warrant process. Sixty-nine senators voted in favor of the bill. Obama was one of them. President Bush signed it into law the next day.

 

The Democrats had caved, but that wasn't surprising. There'd never been a realistic chance that they'd revert to the 1978 version of FISA. And no one in the party had offered a radical new rewrite of the law. The FISA Amendments Act offered some cosmetic changes that allowed the Democrats to appear as if they'd wrung real concessions from the administration, but in practical terms it wasn't much different from the Protect America Act. The political calculation was all too obvious. As the Senate took up the legislation, Obama was preparing to accept his fellow Democrats' nomination for president at their convention in Denver. They weren't about to hand Republicans a talking point as they headed into their own convention only days later, particularly since those yearlong surveillances begun under the Protect America Act would start expiring at the same time. The more pressing question was why Obama himself had voted for the law.

He'd been preparing for the moment before it arrived. The day the House passed their version, almost three weeks before the Senate, Obama announced that he would be voting for the bill. He called it “a compromise.” But it was hard to see how the administration and congressional Republicans hadn't won almost everything they wanted. Obama said the new bill would assert the FISA Court's role in monitoring surveillance. But the court was authorized only to review the government's “targeting procedures,” which intelligence officials and the attorney general would use to decide whom to monitor. The judges weren't technical experts. They had to rely on the government's assurances that these massive new surveillances weren't going to inadvertently sweep in people they shouldn't. The bill also gave immunity to the telecoms, so by any definition it was a major departure from Obama's previous position. It also effectively legalized most of what the Bush administration had been doing in the dark since 9/11.

Obama's vote was his first break with the supporters who provided both the organizing energy and much of the money that drove his campaign. It was also the future president's first major split with his own party. Twenty-eight Democrats voted against the bill. Senator Joe Biden, whom Obama would eventually pick for his running mate, was among them. Obama had once been ranked the Senate's “most liberal” member by
National Journal
, the same nonpartisan political magazine that interviewed Brennan. That status was now in question. Obama had shown the party faithful that on matters of national security he was willing to pay a high political price in order to preserve executive power. The candidate seemed to be living up to the moniker used by his Secret Service protection detail: Renegade.

When Obama tried to explain his change of heart he sounded more like a president than a junior senator. “The ability to monitor and track individuals who want to attack the United States is a vital counterterrorism tool, and I'm persuaded that it is necessary to keep the American people safe,” he said in a statement issued through a campaign Web site. Obama pointed out that the electronic surveillance orders begun almost a year earlier would expire in the summer. To him that posed an unacceptable risk.

Obama tried to assuage the Netroots, who vented their accusations of betrayal into the blogosphere. The candidate threw them some red meat: “Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President's illegal program of warrantless surveillance will be over.” Obama failed to mention that after the Bush administration brought the program before the FISA Court in January 2007, the president's program was technically no longer operating outside the law. Other times he tried to make the law appear stronger than it actually was. Six days before the vote Obama wrote an open letter to those who opposed his decision: “As I've said many times, an independent monitor must watch the watchers to prevent abuses and to protect the civil liberties of the American people. This compromise law assures that the FISA court has that responsibility.” But even a cursory read of the bill showed that the court's authority was greatly diminished. Unless Obama's standards for oversight had changed, he was exaggerating the bill's strengths.

But it was what Obama actually said rather than what he wrote that revealed why he'd changed his thinking. In a press conference in Chicago on June 25, Obama said that he'd learned something about the NSA's program, something that seemed distinct from matters of law and political positioning: “All the information I've received is that the underlying program itself actually is important and useful to American security.” There was only one source from which he could have received an assessment about whether the program was actually important. Only one person advising his campaign had been around the intelligence community long enough to make such a judgment. Only one had been personally aware of the NSA's surveillance program and had been instrumental in keeping it alive. It was John Brennan. He'd been at the CIA when the agency was in charge of preparing detailed “threat assessments” every forty-five days about the risk of terrorist attacks inside the United States. The Bush administration used these documents, known by insiders as “the scary memos,” to justify the continued authorization of warrantless electronic surveillance. Two months after Brennan took over the Terrorist Threat Integration Center, it was put in charge of preparing the memos based on intelligence coming in from across the government.

As the dust settled on Obama's FISA vote, it was clear that Brennan had played a decisive role in shaping the candidate's thinking. Obama had acknowledged that his decision wasn't based solely on the legislative debate. He had been told that the program was “useful.” If that was the case, it shouldn't be scrapped. These surveillance powers should be protected in law. Obama had seen that “the ability to monitor and track individuals” was a vital tool. Why would he give it up when he was so close to winning the presidency?

Obama called his vote “a close call for me.” But it was deliberate and considered. He had picked up the support of the Netroots when he threatened a filibuster. By switching positions and voting for the law, he burnished his credentials with another constituency, one that any future president would need on his side—the intelligence community.

 

On September 2, Mike McConnell prepared for an unusual intelligence briefing. Most mornings he sat with the president in the Oval Office. Now he'd join the Democratic presidential nominee in Chicago, to give him his first classified glimpse into the terror war.

Intelligence officials had learned that the first year of a new presidency was an especially vulnerable period. The 1993 World Trade Center and the 9/11 attacks both occurred within eight months of a change in administrations. At the time of the first attack Bill Clinton had been in office only thirty-seven days. To help keep either candidate from being taken by surprise, McConnell's office prepared briefings for Obama and McCain, who was set to accept his party's nomination that week. After the election the winner would begin to receive a copy of the President's Daily Brief, the classified document that was delivered to the commander in chief every morning.

Obama had traveled to Iraq and Afghanistan in July to meet with U.S. military commanders. His staff informed McConnell that the first intelligence session shouldn't focus on the wars. Obama wanted to know about terrorist threats to the United States.

McConnell's office had planned to meet with the nominee for one hour. But the briefing stretched another thirty minutes. Obama was fascinated. McConnell and his team of briefers saw a familiar expression, the same one that came over every man this close to the ultimate office. It was a mix of shock at the range of threats and a kind of wonder when he realized what extraordinary capabilities the president had to defend the country. The weight of responsibility etched itself into Obama's face. “Until this point, I've been worried about losing this election,” he told McConnell and his colleagues. “After talking to you guys, I'm now worried about winning.”

 

In his inaugural address Obama aimed his rhetorical sights squarely at the former president. “As for our common defense,” he said, “we reject as false the choice between our safety and our ideals.” It was a bold flourish meant to put some distance between himself and George Bush, who was seated only a few feet away from the inaugural podium.

Two days later Obama issued three executive orders on some of Bush's most controversial war-on-terror programs—the interrogation and detention of terrorist suspects. Opponents of the Bush doctrine would declare that with the stroke of a pen Obama had swept away lawless and shameful policies and returned the rule of law as the guiding principle of national security. Certainly the new commander in chief wanted to appear as if he were charting a new course by ordering an end to harsh interrogation techniques, including the notorious waterboarding, and declaring that the infamous island prison at Guantánamo Bay, Cuba, would be shuttered within a year. But a careful reading of the president's orders revealed far less distance between him and Bush than many wanted to see.

It was true that Obama limited the menu of interrogation techniques to those found only in the
Army Field Manual,
a document that some Bush administration intelligence officials—including Mike Hayden—found overly restrictive. “Violence to life and person,” “torture,” and “humiliating and degrading treatment” were prohibited. And the CIA was ordered to get out of the secret prisons business and close any remaining black sites.

But Obama also set up a special task force whose mission was to determine whether the interrogation techniques in the
Army Field Manual
gave the intelligence agencies “an appropriate means of acquiring intelligence necessary to protect the nation.” In other words, if the manual was too conservative, as some felt, what harsher techniques should be used? Later, Obama's nominee to head the CIA, Leon Panetta, said that if he felt it was necessary to use stronger techniques on a terrorist suspect, he would not hesitate to seek the president's approval.

In August, the White House announced that it was setting up a new multi-agency team dedicated exclusively to the interrogation of so-called high-value terrorists, those who might possess critical intelligence about pending attacks. The FBI would take the lead, a clear indication that the administration favored using the noncoercive interrogation techniques practiced by the bureau over the brutal tactics that the CIA had employed. The team would be restricted to the
Army Field Manual
for now, though Obama's advisers said they should also develop a “scientific research program” to study new techniques and review existing ones.