Book Review

Thomas Powers on Spying, Lying, and Saying No

On the day that Ayman al-Zawahiri appeared in his nine thousandth video from -- assumedly -- the remarkably technologized wilds of the Afghan-Pakistan border region, mocking President Bush for a botched Predator-drone missile attempt on his life, another article caught my eye. In a piece in the Los Angeles Times, headlined CIA Expands Use of Drones in Terror War, Josh Meyer reported: "Despite protests from other countries, the United States is expanding a top-secret effort to kill suspected terrorists with drone-fired missiles as it pursues an increasingly decentralized Al Qaeda, U.S. officials say." These high-tech, long-distance "targeted killings" from the air -- they used to be called assassinations and Chris Dickey of Newsweek files them away under the rubric of "boys with toys" -- turn out, like acts of torture, to be staggeringly counterproductive. This one, which reportedly killed a number of women and children, shook the regime of Pakistani military strong man and U.S. ally Pervez Musharraf.

Like National Security Agency warrantless spying on U.S. citizens, the waterboarding of captives, and so many other actions of this administration, such assassination attempts rely on the shakiest and most dubious of legal findings produced more or less out of thin air. In fact, thanks to a recent Newsweek investigative piece, Palace Revolt by Daniel Klaidman, Stuart Taylor Jr. and Evan Thomas, we know a good deal more about just how thin that air was. As they report, with the President, Vice President, Secretary of Defense Donald Rumsfeld, and CIA director George Tenet convinced that the 9/11 attacks "and the threat of more and worse to come -- were perfect justification for unleashing the CIA and other long-blunted weapons in the national security arsenal," all that was needed was "legal cover, so [the CIA] wouldn't be left holding the bag if things went wrong."

Here's where what we now know as the "unitary executive theory," the idea of an unfettered presidency in which George Bush would be commander-in-chief not just of the military but of all of us, came into play. As the three reporters describe the process, David Addington, then the Vice President's legal counsel (now his chief of staff), fearing opposition within the bureaucracy, "came up with a perfect solution: cut virtually everyone else out." Thus, a legal cabal supported the Rumsfeld/Cheney "cabal" former Colin Powell Chief of Staff Lawrence Wilkerson has written about so vehemently.

In this way, a wide-ranging legal justification for the President's right to do whatever he cared to do as long as we were "at war" burst from the fevered brows of a few top officials and a small group of administration lawyers. From the point of view of my own fevered brow, a single institutional law seems to apply to the administration's subsequent efforts: Always expand. All programs involving the secret powers of the president -- to torture, imprison, create global prison networks, assassinate, spy on citizens and others, or generally involve the military in civilian life -- started from modest seeds and simply grew and grew without bounds or even any particular relationship to their efficacy. Take the Pentagon's three year old Counterintelligence Field Activity or CIFA. Initially a small office charged with "protecting military facilities and personnel," it now has nine directorates, a staff of 1,000, a large secret budget, and its own full-scale secret spying program, code-named Talon, that reported as a "national security threat" ten peace activists "who handed out peanut butter and jelly sandwiches outside Halliburton's headquarters in Houston in June 2004." The same could be said of CIA secret prisons, NSA domestic spying operations, or the new U.S. Northern Command that the administration set up in 2002.

Thomas Powers, author of Intelligence Wars: American Secret History from Hitler to al-Qaeda, explores the meaning of the recent NSA spying scandal below in fascinating detail and the abject failure of Congress (or the American public) to rein in this administration. As he writes trenchantly, "In public life as in kindergarten, the all-important word is no." It's clear that the expansion of secret (and not so secret) "war-time" powers proved a heady, addictive experience for top officials of this administration. (Where's Nancy Reagan and her "just say no" program when we need them most?) Powers' superb essay will be running in the February 23 issue of the New York Review of Books just now heading toward the newsstands. It appears here as an on-line exclusive thanks to the kindness of that magazine's editors. Tom

The Biggest Secret
By Thomas Powers

A Review of State of War: The Secret History of the CIA and the Bush Administration by James Risen.

1. The challenges posed to American democracy by secrecy and by unchecked presidential power are the two great themes running through the history of the Iraq war. How long the war will last, who will "win," and what it will do to the political landscape of the Middle East will not be obvious for years to come, but the answers to those questions cannot alter the character of what happened at the outset. Put plainly, the President decided to attack Iraq, he brushed caution and objection aside, and Congress, the press, and the people, with very few exceptions, stepped back out of the way and let him do it.

Explaining this fact is not going to be easy. Commentators often now refer to President Bush's decision to invade Iraq as "a war of choice," which means that it was not provoked. The usual word for an unprovoked attack is aggression. Why did Americans -- elected representatives and plain citizens alike -- accede so readily to this act of aggression, and why did they question the President's arguments for war so feebly? The whole business is painfully awkward to consider, but it will not go away. If the Constitution forbids a president anything it forbids war on his say-so, and if it insists on anything it insists that presidents are not above the law. In plain terms this means that presidents cannot enact laws on their own, or ignore laws that have been enacted by Congress.

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 2005 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 not only authorized the NSA 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."

2. 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.

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