NSA TAPPED JOURNALISTS
Did Bush’s Terrorist Surveillance Program Really Focus on American
by Scott Horton / January 22, 2009
“For the last several weeks, Michael Hayden, the former CIA director who previously led the NSA, has been sweating bullets. In recent press meetings he was a bundle of worries, regularly expressing worries about “prosecutions.” Fear of the consequences of criminal acts has been a steady theme for Hayden. In her book The Dark Side, Jane Mayer reports that in 2004 Deputy Attorney General James Comey was “taken aback” by Hayden’s comments when he was let in on the details of the program that Hayden ran at NSA. “I’m glad you’re joining me, because I won’t have to be lonely, sitting all by myself at the witness table, in the administration of John Kerry.”
Last night on MSNBC’s “Countdown with Keith Olbermann,” we learned that Hayden is concerned about more than just allegations that detainees in CIA custody were tortured. Former NSA analyst Russell Tice, a source for the New York Times disclosure of details of the program, appears to offer further details on the program. He reports that under Hayden the NSA was looking at “everyone’s” communications—telephone conversations, emails, faxes, IMs—and that in addition to suspect terrorists, the NSA was carefully culling data from Internet and phone lines to track the communications of U.S. journalists. This was done under the pretense of pulling out a control group that was not suspect. But Tice reports that when he started asking questions about why journalists were sorted out for special scrutiny, he found that he himself came under close scrutiny and was removed from involvement in the program. He found that he had come under intense FBI surveillance and his communications in all forms were being monitored. After expressing severe doubts about the operations of the NSA program, both Deputy Attorney General Comey and former Assistant Attorney General Jack Goldsmith both believe they also came under intense surveillance. Both decided to leave the Bush Administration after these developments.
If Tice’s allegations are correct, then Hayden managed a program which was in essence a massive felony, violating strict federal criminal statutes that limit the NSA’s domestic surveillance operations. While a number of media outlets reported that Hayden’s activities were “vindicated” by a recent FISA court ruling approving the NSA surveillance program, that view is completely incorrect. The FISA court ruling dealt only with the implementation of a program under the newly amended FISA following Hayden’s departure.”
AND ALSO EVERYONE
NSA Whistleblower: Grill the CEOs on Illegal Spying
by Kim Zetter / January 26, 2009
“Former National Security Agency analyst Russell Tice shed new light on the Bush administration’s warrantless domestic spying last week when he told MSNBC that the NSA blended credit card transaction records with wiretap data to keep tabs on thousands of Americans. But Tice didn’t say where the credit card information, and other financial data, came from. Did the agency scoop it in as part of its surveillance of U.S. communications backbones, or did financial companies give up your records in bulk to the NSA? The distinction is significant. Telecommunication companies, such as AT&T and Verizon, are embroiled in lawsuits over their alleged cooperation with the government’s warrantless surveillance. If credit card companies and banks also provided information without a warrant, it’s conceivable they could face a courtroom challenge as well.
I spoke with Tice extensively in the spring of 2006. With Bush still in power, the whistleblower was considerably more taciturn than on television last week. But looking back through the transcript of my interviews now, in the context of his new revelations, it seems clear that Tice was saying that credit card companies and banks gave the same kind of cooperation to the government that phone companies did. “To get at what’s really going on here, the CEOs of these telecom companies, and also of the banking and credit card companies, and any other company where you have big databases, those are the people you have to haul in to Congress and tell them you better tell the truth,” he said at the time. “Because anyone in the government is going to claim executive privilege.”
The New York Times broke the story in 2006 that the NSA obtained access to financial records in the international SWIFT database. But that database mostly involves wire transfers of money in and out of the U.S., not domestic transactions. Tice’s comments reveal that the agency may have obtained bulk data on domestic credit card transactions as well from U.S. financial institutions — all without a warrant. I spoke with Tice for a story about a secret room at an AT&T facility in Bridgeton, Missouri that had the earmarks of an NSA data mining operation. Shortly after Mark Klein, a retired AT&T employee in San Francisco, came forward with information about a secret room in a San Francisco building that appeared to be providing the NSA with a real-time data feed, two sources who once worked for the company told me about a similar room in the company’s Bridgeton facility that appeared to be doing the same kind of data mining at a much greater level. Bridgeton is the network operations center for AT&Ts broadband services.
I turned to Tice for more details. Tice had already publicly identified himself as one of the sources the New York Times had used for its 2005 story on the government’s warrantless wiretapping. Tice warned me at the start of our conversation that he believed our phone call was being monitored by the FBI and that there were a lot of things he wouldn’t be able to discuss, on the advice of his lawyer. Tice had been in the intelligence community since 1985. He entered the Air Force after finishing college, and went to work in signals intelligence. After leaving the military, he worked as an intelligence contractor, then was employed by the Defense Intelligence Agency before taking a job with the NSA. His unclassified resume hides all of this history. “[It says] I deal with space systems. Space communications, all kinds of space weenie stuff. If it deals with outer space I’m your man,” he said. Do you have any connection to outer space stuff? I asked. “I watch Buck Rogers. What follows are excerpts from my interviews with Tice, beginning with his explanation of one way the NSA’s data mining could operate.”
Tice: Say you’re pretty sure you’re looking for terrorists, and you’re pretty sure that the percentage of women terrorists as opposed to men is pretty [small]. So you just filter out all female voices. And there’s a way to determine whether the signature of the voice is male or female. So, boom, you get rid of 50 percent of your information just by filtering there. Then from your intelligence work you realize that most terrorists never talk more than two minutes. So any conversation more than two minutes, you immediately filter that out. You start winnowing down what you’re looking for.
Q: Without really knowing what it is you’re looking for?
Tice: Right. And if you can develop a machine to look for the needle in the haystack and what you come out with from having the machine sift through the haystack is a box of straw, where maybe the needle’s in there and maybe a few bonus needles, then that’s a whole lot better than having humans try to sift through a haystack.
Secretroom1_f_2 Q: Presuming that the NSA is collecting data in San Francisco or data mining, what happens to the data after it’s collected? If they find actionable material in the data does the NSA pass it on to the FBI?
Tice: The NSA avoids sending anything to the FBI if they can help it. If there is a criminal element or activity in the data it has to be determined whether it’s passed to the FBI, or Homeland Security, as it happens to be these days. When I was in the business, we all knew that the FBI leaked like a sieve. So we were very hesitant to take advantage of the FBI on anything because you were liable to see it on the news the next day. The FBI will compromise anything to get a conviction. But in the intelligence community you don’t think that way. We’re more than willing to let a criminal go to protect classified information. . . .
Q: But would the info be passed to the FBI if it involved terrorists and national security?
Tice: Yes, they would. And if it’s some big mob thing, they would also give it to the FBI, but tell them to come up with some other way as to how they got the information.
Q: Why would the agency need to be so secretive about the AT&T rooms?
Tice: The big reason why they would put the San Francisco operation at such a high classification level is to hide the fact that they’re breaking the law and to hide the fact that they’re breaking the NSA’s own policy. It should be [the sort of project] that any NSA analyst should be able to walk in and have access to. But to cloister it away where only a few people know about it means that it’s something they don’t want anyone to know about. … Say we’re doing that same sort of deal overseas against a foreigner. … More than likely anyone in NSA could potentially have access to that information. It wouldn’t be compartmentalized. So if we set up that same scenario, even covertly in some frame room in Bucharest or something, anyone at NSA with a TS/SCI clearance could potentially look at intelligence reports from information garnered from that particular collection point. So all of a sudden that same thing is being used here in the states and it’s being put into a special SAP program — Special Access Program. … They’re extremely closely held programs that are super-duper clearance nonsense. It’s what I specialized for the last eleven years or whatever.
Q: So you’re saying that San Francisco and this other room [in Bridgeton] reek of “super-duper” secrecy?
Tice: Yes, it reeks of SAP. Potentially. For NSA to do what they did … it means that they knew that it was illegal and the reason they put this super high clearance on it was because they were protecting their own hides to keep anyone within NSA from finding out that it was going on. … Let me tell you, the biggest sweat that happened at NSA happened when John Kerry almost got elected president [in 2004], because they were concerned they were all going to be thrown in jail. They were all wiping sweat off their forehead when he lost. That’s the scuttlebutt.
Q: Is it correct to say that, if the NSA is doing what Mark Klein says they are doing, that this would be a departure from the NSAs mission? Meaning that this would be the first time since 1978 or so when FISA was passed that it was engaging in this kind of activity?
Tice: That’s correct. This would be an entirely new business for them, especially since FISA. If you look at USSID 18, the NSA’s bible on how it operates, the number one commandment of the NSAs ten commandments is You Shall Not Spy on Americans. So when this was brought up, I assume by [former NSA Director Michael] Hayden, he knew that what he was proposing was a violation of the fourth amendment and of USSID 18. And everyone at NSA knows this, too, because it’s drilled into our heads over and over again. To get at what’s really going on here, the CEOs of these telecom companies, and also of the banking and credit card companies and any other company where you have big databases, those are the people you have to haul in to Congress and tell them you better tell the truth. Because anyone in the government is going to claim executive privilege. I just hope in the long run that … at some point that the American people wake up and that this stuff is dealt with. Right now … do you know the adage about the frog in the water? That’s what we’re dealing with here. The American people are the frog in the tepid water, and the temperature is slowly being turned up. And we’re about to become frog soup, and the American people don’t know what’s happening. Aristotle said that the biggest danger to democracy is not insurgency, it’s apathy. And I think that’s what we’re seeing right now. To a large extent it’s politicians doing CYA and doing everything they can to make sure that people don’t know what’s going on. But to another extent, it’s the populace who is more concerned about Janet Jackson’s breast jumping out of her dress at the Super Bowl as opposed to what’s really important in this world. Who cares about Britney Spears having her baby on her lap or all that nonsense that you see on TV? I’ve done my constitutional duty. I’ve done what I had to do. That’s all I’ll say. Let the chips fall where they may. I’m out of the game. I’ve fallen on my sword.”
TOP SECRET UMBRA
In a New History of NSA, Its Spies’ Successes Are [Redacted]
by Siobhan Gorman / November 14, 2008
“For much of its history, the government’s most-secretive intelligence agency sought to conceal its very existence. So it was a surprise last year when university researchers persuaded the National Security Agency to hand over a top-secret, 1,000-page account of its Cold War spying. George Washington University plans to release the report today, giving historians a rare look inside the agency that gathers intelligence through eavesdropping. But one thing appears to be missing: Many of its biggest successes. Not wanting to reveal too much, NSA blanked out sensitive chunks of the account that, according to intelligence experts, appear to chronicle espionage breakthroughs. What remains makes it appear that the world’s largest ear has been a bit deaf. According to the declassified report, government eavesdroppers generated half of their intelligence reports just after World War II from listening in on the French. Code breakers missed a key tip-off in the Cuban Missile Crisis. The report also suggests that, for the most part, the government couldn’t crack high-grade Soviet communications codes between World War II and the 1970s. “This was a perfect opportunity for NSA to put its best foot forward,” says Matthew Aid, an intelligence historian who pressed the agency to release the report and plans to publish his own NSA history next year. “Instead what you’re left with is a fair to middling picture of this agency.”
The report’s author, Thomas R. Johnson, declined to say how the edited history compares with the original version. But intelligence experts say it’s common for failures to become more public than successes because such breakthroughs can be too good to reveal. Even making older successes public may reveal sources, hint at continuing intelligence efforts, or hurt diplomatic relations. When NSA declassified the government’s World War II code-breaking activities, it faced criticism from State Department colleagues who were upset the U.S. had spied on allies, says Mr. Aid, a visiting fellow at the National Security Archive at George Washington University.
NSA, once dubbed “No Such Agency,” was created in a secret executive order in 1952 to intercept electronic communications through eavesdropping. It wasn’t until 16 years later that its power to eavesdrop on foreigners was established in public law. On three separate occasions, the agency set out to write its history, but it aborted each effort because it was too overwhelming. In 1992, NSA tapped Mr. Johnson to take another crack at it. “Even when I came to the agency in 1964, there was this culture that we were so secret that no one would ever get into our affairs,” Mr. Johnson said in an interview that NSA officials arranged and attended. He spent more than six years writing the report, divided into four intelligence eras, that draws on his 34 years in government eavesdropping around the world. When friends asked him when they would read it, the 68-year-old would say: “We’ll all be dead before this is declassified.”
In 1998, he completed the report before retiring from NSA the next year. All of its pages were stamped “TOP SECRET UMBRA,” using agency jargon that signified it was particularly sensitive. The most revealing portions of the history hint at U.S. failures to crack Soviet communications after a day in 1948 the agency dubbed “Black Friday,” when the Soviets changed their communications codes. The following year, the NSA’s predecessor, the Armed Forces Security Agency, inherited from the military services “a Soviet problem that was in miserable shape,” Mr. Johnson wrote, in reference to cracking Soviet codes.
U.S. intelligence agencies were surprised to discover the Soviets exploded a nuclear device in September 1949, the history says. They were again caught off guard four years later when the Soviets detonated a hydrogen bomb. Some government officials believed the effort to decode Soviet communications “was hopeless and should not be funded,” Mr. Johnson wrote. NSA also fought internecine battles with its sister agencies, especially the Central Intelligence Agency. The CIA didn’t inform NSA Director Lt. Gen. Ralph J. Canine about its effort in the mid-1950s to tap East German and Soviet cables, dubbed the Berlin Tunnel, the history says. In a photo from 2006, a workstation bears the National Security Agency logo inside the Threat Operations Center inside the Washington suburb of Fort Meade, Md.
In the lead-up to the Cuban Missile Crisis, NSA and military spies missed the Soviets transferring a battery of offensive missiles to Cuba. That “marked the most significant failure” by government eavesdroppers to warn national leaders since World War II, Mr. Johnson wrote. Bobby Ray Inman, a retired admiral and former director of NSA during the late 1970s, says the history doesn’t acknowledge the successful tracking of Soviet ships that were heading toward Cuba. During the late 1970s, “there were several access breakthroughs that provided some extraordinary insights,” he says. Hinting at those successes, the declassified history says that as NSA entered that period, it made significant advances in unlikely circumstances. “Even with decreased money, cryptology was yielding the best information that it had produced since World War II” by that time, Mr. Johnson wrote.
In 1979, NSA successfully warned of the Soviet invasion of Afghanistan, and White House postmortems called it an intelligence success. In the 1980s, he wrote, the NSA used “lots of shiny new toys to very telling effect. “After years of struggle, it was now possible to predict with some clarity and speed the intentions of the major antagonist. It had been a long walk from Pearl Harbor,” the history says. The report also offers a glimpse inside the offices of the mysterious agency. In 1954, at its unairconditioned and overcrowded headquarters, then in Arlington, Va., NSA had a hot-weather policy that allowed employees to leave work “when conditions became fairly unbearable,” Mr. Johnson wrote. The agency drew a chart listing the heat and humidity combinations that permitted employees to leave, starting at 95 degrees. In colder months, employees’ metal badges proved “ideal for scraping ice off windshields,” he wrote.
After Mr. Johnson turned in the report, it remained under wraps at the NSA. He mentioned it to Mr. Aid, the historian, after meeting him at an intelligence conference in Canada. In 2006, Mr. Aid joined forces with George Washington University’s National Security Archive and filed a request to get the report. The agency handed over Mr. Johnson’s first three volumes the following year, except for about 75 to 100 pages that it deemed too sensitive. “I was stunned,” Mr. Aid says. “Clearly this history was meant for internal consumption only.” Eager to get a copy after it was handed over to the university, Mr. Johnson called a friend at NSA. But she wouldn’t give it to him. “She said, ‘I’m not sure we want to do that because then you’ll be talking on the record about this, so I’m looking into it,’ ” Mr. Johnson says. He didn’t hear back and ended up getting a copy from Mr. Aid. Historians are working to get their hands on a fourth volume that Mr. Johnson wrote about the NSA. Mr. Johnson says it includes “a couple of instances” during the 1980s where “somebody really made a bad error here and should have been fired. “I hope it will come out,” he says about the fourth volume. “It’s still classified.”
Secret Agency Man
The new NSA is decentralized, privatized, and coming to a “data
center” near you. Author James Bamford catches up with his old nemesis
by Lee Gardner / 11/5/2008
“Not long after U.S. Air Force Major General* Michael Hayden learned he was going to be named the director of the National Security Agency in 1998, he and his wife went out on a date. The Haydens lived in Seoul, South Korea, where he was stationed with the United Nations Command, and they decided to take in a movie at the local U.S. army base. The
feature presentation that evening happened to be Enemy of the State, a then-new Hollywood thriller that depicted the highly secret, enigmatic NSA as a ruthless organization that used its array of electronic surveillance devices to peer into every corner of the private lives of Americans and murdered those who stood in its way, including a Congressman.
As Hayden told journalist James Bamford during an interview in 2000, “Other than the affront to truthfulness, it was an entertaining movie.” Hayden went on to explain that he appreciated Enemy of the State for its deeper message: “the evils of secrecy and power.” Hayden’s words came back to Bamford in 2005 after the New York Times broke the story that the NSA under Hayden had been conducting widespread eavesdropping on the conversations of Americans communicating overseas, a practice expressly outlawed by the 1978 Foreign Intelligence Surveillance Act but controversially put in motion by the Bush Administration in the wake of the terrorist attacks of September 11.
Bamford was, and remains, very likely the person who knows the most about the NSA outside the NSA itself. He is the author of 1982’s best-selling The Puzzle Palace, the first extensive investigation into the electronic-spying agency headquartered at Fort Meade, Maryland; when he interviewed Hayden he was working on a best-selling sequel, 2001’s Body of Secrets. As Bamford notes during a recent telephone conversation, he had no plans to write a third book about the NSA. But when the Times’ “warrantless eavesdropping” story broke, he got back to work.
Bamford’s new book, The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America (Doubleday), presents an account of the drastic and ominous shift in the agency’s mission and tactics over the past seven years. After detailing the NSA’s failure to follow up on the clues it had about the September 11 terrorists entering the United States, Bamford recounts Hayden’s quick capitulation to the Bush Administration’s request for an illegal surveillance dragnet and the fallout from the Times story, including persistent attempts to continue the program and indemnify the participants that were only resolved with the passage of the FISA Amendments Act this past July. (Hayden left the NSA in 2005; he is currently the director of the Central Intelligence Agency.)
The revelations don’t stop there. The Shadow Factory discusses the National Business Park, a complex near Fort Meade that’s crammed with private companies that now earn millions to do much of the NSA’s highly classified work. Among the private companies winning contracts with the agency are Narus and Verint, firms with ties to Israeli intelligence that sell surveillance equipment to the NSA, and also to countries such as Vietnam and China, which use it to crack down on dissidents. Bamford wraps up with the agency’s growing interest in gathering and mining communications data, which includes building a massive new 470,000-square-foot “data warehouse” in San Antonio that, as Bamford observes, “may eventually be able to hold all the information in the world.” Low-key but voluble, 62-year-old Bamford spoke with the Current’s Times-Shamrock sister publication, Baltimore City Paper, from his home in Washington, D.C.
Q: How did you first get interested in the NSA and start writing about it?
A: I was in the Navy for three years, and then [thanks to] the GI Bill I went to college and law school. After graduating from law school, I wasn’t that interested in practicing law. I wanted to get into writing, and one of the areas I was kind of interested in was intelligence. There had been lots of books written about the CIA, and there wasn’t really much I could contribute, but no one had ever done a book on NSA, which I’d heard about but didn’t really know too much about. I thought that might be something I could do that no one else had done.
Q: When you started writing your book in 1979, wasn’t the NSA’s existence still more or less officially unacknowledged by the government?
A: It was officially acknowledged in the late ’50s, early ’60s as the result of a couple of spy scandals, but for a number of years they [used] a cover story in terms of what they did — this sort of gobbledygook double-talk about “keeping America’s communications secure.” They didn’t really talk about their eavesdropping or code-breaking role. That started coming out later on in the ‘60s, but by the time I began writing about them in the late ’70s, they were still pretty much in the closet. There had been a couple of articles about them, but not really very much. It was sort of like exploring a lost continent, since very few people had gone some of the places I went in terms of finding documents or finding people or finding information about the agency.
Q: Did you get any pushback from the agency when you started writing about it? After all, it’s supposed to be top secret.
A: I had a difficult time. My advance was fairly small, I was living in Massachusetts, I didn’t really know anyone in intelligence, and I hadn’t written anything before. And I was going up against NSA One of the things I was good at in law school was research, so I thought maybe I’d try using the Freedom of Information Act. The problem with that was, NSA is really the only agency excluded from the act. If you sent them an FOI request, they would just send you a letter back saying under [Section 6 of the National Security Act] we don’t have to give you anything, even if it’s unclassified. But I found this place, the George C. Marshall Research Library in Lexington, Virginia, and William F. Friedman, one of the founders of the NSA, had left all his papers there. When I got down there, I found the NSA had gotten there just before me and gone through all of his papers, and taken a lot his papers out and put them in a vault down there and ordered the archivist to keep them under lock and key. And I convinced the archivist that that wasn’t what Friedman wanted, and he took the documents out and let me take a look at them. Among the documents was an NSA newsletter. These are things the NSA puts out once a month. They’re fairly chatty, but if you read them closely enough you can pick up some pretty good information about the agency. … When I was reading one of the newsletters, there was a paragraph that said, “The contents of this newsletter must be kept within the small circle of NSA employees and their families.” And I thought about it for a little bit, and I thought, hmm, they just waived their protections on that newsletter — if that’s on every single newsletter then I’ve got a pretty good case against them. If you’re going to open it up to family members, with no clearance, who don’t work for the agency, then I have every right to it. That was a long battle, but I won it, and they gave me over 5,000 pages worth of NSA newsletters going back to the very beginning. That was the first time anyone ever got a lot of information out of NSA. We made this agreement where I could come down and spend a week at NSA, and they gave me a little room where I could go over the newsletters and pick the ones I wanted. So I got all that information and spent about a week at NSA. And finally they really wanted to delete some names and faces, and I said you can do that, but there ought to be some kind of quid pro quo. The quid pro quo was that I get to interview senior officials and take a tour of the agency. And that was what really opened it up. It wasn’t the NSA you see today — it was much different. They just thought no one would ever try to write about NSA, and they didn’t think I would have any luck, because who am I? I’m just some guy up in Massachusetts with no track record.
Q: What was the agency’s reaction once the books came out?
A: They threatened me with prosecution twice when the first book came out. And then when the sequel came out in 2001, they went to the opposite extreme and had a book-signing there. Body of Secrets was fairly favorable, because they had changed their ways after ’78 — they weren’t doing domestic eavesdropping anymore. It seemed like they’d learned their lesson and were obeying the law. That phase of my relationship with NSA ended on December 16, 2005. That’s when the New York Times broke the story about their domestic eavesdropping. I had been telling people [the NSA is] obeying the law now and they would never go back on that, and here they were the whole time, doing that ever since 2001. And that’s when the ACLU asked me to join their class-action lawsuit as a plaintiff against NSA. So I went from getting dinner invitations to the director’s house and Christmas-party invitations to being on the other side of a lawsuit. It’s a love-hate relationship, and it’s been going on a long time.
Q: When I told people I was going to be interviewing you about the NSA, some of them made jokes about the agency listening in on the phone call. I think a lot of Americans, correctly or not, halfway believe that the agency actually does such things. Do you?
A: I never claimed that NSA eavesdrops on domestic-to-domestic communications, so I wouldn’t worry too much about this [call]. As I point out in the book — and this comes from a number of people on the front lines with the earphones and all that — after 9/11 and the warrantless eavesdropping program got started, they have been eavesdropping on Americans calling Americans [overseas, or to or from overseas]. One of the people I talked to worked four years before 9/11 in the same place, and she was saying [before 9/11] when they came across an American they would immediately turn off the computer and move on to the next call. It’s called “minimization” — you don’t keep a record of it, you don’t transcribe it, you don’t record it, unless you have a warrant from the Foreign Intelligence court. But after 9/11 she says they weren’t doing any minimization. They’d pick up Americans calling Americans and they’d actually listen to those conversations, they’d transcribe some of them, and they’d all be recorded and stored — for eternity for all I know.
Q: So people’s paranoia about the NSA listening in on phone calls, at least inside the United States, is unfounded?
A: Unless there’s stuff I don’t know, which is quite possible, there’s never been domestic-to-domestic [telephone or e-mail surveillance]. Most of what they do is foreign country to foreign country or U.S to a foreign country or a foreign country to the U.S. But think of how many communications there are to or from Americans [internationally] in terms of email, telephone calls, faxes, and everything. The world has shrunk a great deal. And that was the problem [with the warrantless eavesdropping] — they were picking up a huge amount of American communications but no Al-Qaeda, and certainly no Americans talking to Al-Qaeda, which is what President Bush said this was all about. This was Americans talking to Americans. What they were intercepting is the Inmarsat satellite, and most of the people who had satellite phones in the Middle East were reporters, military people, aid workers, that kind of thing. [My source] thought they were wasting their time. She didn’t join the Army to listen to bedroom talk between soldiers and their wives.
Q: Another aspect of the warrantless eavesdropping program had to do with communications between foreign nationals in other countries that nonetheless pass through the United States that the NSA wanted access to, right?
A: There’s so much information that flashes between ISPs in the United States like Google, Yahoo, and AOL, and there are so many large nodes for the transfer of internet communications that the U.S. plays a huge role in the thing. Say you’re in Madrid and you send an email to Tehran and it’s 10 a.m. in Madrid. There’s a good chance that’s gonna go from Madrid to New York to Tehran instead of, say, Paris, because at 10 in the morning there’s a huge amount of traffic passing through those European hubs, and at the same time its about 5 in the morning on the East Coast [of the United States], so it’s very quiet, and it’s also cheaper. The computer would automatically reroute that communication. This is a foreigner talking to a foreigner, and the only U.S. nexus is that for a millisecond this communication bounces in and out of an internet hub. This was a problem. (Editor’s note: The FISA law prevented the NSA from accessing such communications without a warrant but, at the urging of the Bush Administration and with the permission and cooperation of telecommunications companies, it tapped into fiber-optic cables anyway.)
Q: It’s strange to think about the NSA as this agency engaged in all this highly secret, super-technical, and, in this case, illegal activity, but at the same time think of it as the place you’ve described as having office Christmas parties and softball games and all the other mundane stuff that goes along with working in a big government agency. What’s the culture of NSA like?
A: It’s hard for me to generalize, since I know a select group of people there, but the NSA is a very insular agency. People have secrecy drummed into them. I’ve talked to a lot of NSA people who say they feel very uncomfortable going to parties with a lot of non-NSA people, because the subject will come up of Iran or Iraq, and they have to either drift out of the conversation or say very little. A lot of time they get nervous when they contribute something because they may not be sure whether it’s something they read in Time magazine or something they read in a top-secret memo or something. Or if they read it in Time magazine and they say it, whether someone will report it because they think they’re giving up a secret. So at least the people I’ve talked to in the past tended to keep in their small employee-type circles.
Q: Well, one of the first things people tend to ask someone they just met at a party is “What do you do?”
A: Yeah, and in the area around NSA, in the past it was “Department of Defense.” So if they say Department of Defense and you’re in Laurel, Maryland, you know they’re working for the NSA. If it was just neighbors, maybe people could say NSA, but if they didn’t know who was there, I think they would try not saying anything or saying something generic like “I work for the government” or “I work for the Department of Defense” and hope it wouldn’t go any further than that.
Q: I’m struck by the fact that you sound genuinely surprised and upset, still, about the warrantless eavesdropping program.
A: Well, I was very surprised. I had defended the agency in a number of places.
Q: But, as you write in The Shadow Factory, the agency had been caught spying on Americans before in the ’70s with Project Shamrock.
A: I agree, but I didn’t know the people back then. I knew the people this time. I trusted that Hayden was going to follow the law. I talked to a lot of people there, and that was the impression I got. The mid-’70s was the worst time in NSA’s history, the first time a director had to sit in front of an open hearing of Congress and get blasted and humiliated, and all these horror stories came out about eavesdropping on all the telegrams entering and leaving the country [as part of Project Shamrock]. The FISA court got set up as a new safeguard, the buffer between NSA and the public. Everyone I talked to from then on said those were the horror days, we don’t want to relive them, we’re going to keep as far from the edge as possible. I didn’t think that was going to change after 9/11 — you still had the [FISA] court there, you still had laws, the Constitution. That’s why when I read the reports and talked to people who indicated that they had decided to bypass the court … I mean, that’s illegal. There is no other word for it. The FISA act says if you want to eavesdrop on what they call a “U.S. person,” you get a warrant from the FISA court. You don’t bypass it. That’s a felony. You can get five years in prison. I’ve written more than anyone else on the agency and, you know, it’s no big deal, I just go on with the next day like the day before, but when I find out that this agency that I’ve been saying would never do these things is doing them, yeah, it’s a shock and a disappointment, a disappointment in the people that you didn’t think were going to do that. The people I did have respect for were [Deputy Attorney General] Jim Comey, even [Attorney General John] Ashcroft, and Bob Mueller, the head of the FBI. They, plus people under them, came within a day of resigning over this whole thing. And that’s standing up for moral principles, and I would have much preferred that General Hayden would have stood up to Cheney or whomever and said that’s illegal, I can’t do that, I can’t carry out that order so I’m going to have to resign. It’s scary to think that someone puts a little pressure on you and you say, OK, that’s fine, we’ll go ahead and bypass the law. They could have gone to Congress. Congress would have given them anything they wanted in those days. But it’s the arrogance of power when you decide you’re not even going to do that. You’re just going to do it because you feel like doing it, because you’re the person who’s going to save the world. That’s how tyrannies get to be tyrannies, because people think they’re above the law.
Q: One of the interesting, and disturbing things about the warrantless eavesdropping as you describe it in the book is that the NSA started getting this increased level of access and raking in more and more communications but seemed to get little usable information out of it all.
A: The problem is that NSA was never designed for what it’s doing. It was designed after World War II to prevent another surprise attack from another nation-state, particularly the Soviet Union. And from 1945 or ’46 until 1990 or ’91, that’s what its mission was. That’s what every piece of equipment, that’s what every person recruited to the agency, was supposed to do, practically — find out when and where and if the Russians were about to launch a nuclear attack. That’s what it spent 50 years being built for. And then all of a sudden the Soviet Union is not around anymore, and NSA’s got a new mission, and part of that is going after terrorists. And it’s just not a good fit. They missed the first World Trade Center bombing, they missed the attack on the U.S.S. Cole, they missed the attack on the U.S. embassies in Africa, they missed 9/11. There’s this string of failures because this agency was not really designed to do this. In the movies, they’d be catching terrorists all the time. But this isn’t the movies, this is reality. The big difference here is that when they were focused on the Soviet Union, the Soviets communicated over dedicated lines. The army communicated over army channels, the navy communicated over navy channels, the diplomats communicated over foreign-office channels. These were all particular channels, particular frequencies, you knew where they were; the main problem was breaking encrypted communications. [The NSA] had listening posts ringing the Soviet Union, they had Russian linguists that were being pumped out from all these schools around the U.S. Then the Cold War ends and everything changes. Now instead of a huge country that communicated all the time, you have individuals who hop from Kuala Lampur to Nairobi or whatever, from continent to continent, from day to day. They don’t communicate [electronically] all the time — they communicate by meetings. [The NSA was] tapping Bin Laden’s phone for three years and never picked up on any of these terrorist incidents. And the [electronic] communications you do have are not on dedicated channels, they’re mixed in with the world communication network. First you’ve got to find out how to extract that from it, then you’ve got to find people who can understand the language, and then you’ve got to figure out the word code. You can’t use a Cray supercomputer to figure out if somebody’s saying they’re going to have a wedding next week whether it’s really going to be a wedding or a bombing. So that’s the challenge facing the people there. So even though I’m critical about them for missing these things, I also try in the book to give an explanation as to why this is. It’s certainly not because the people are incompetent. It’s because the world has changed. I think the problem is more serious than people realize. I talked to the people at Fort Gordon [in Georgia], which is the main listening post for the Middle East and North Africa. What was shocking to me was the people who were there were saying they didn’t have anybody [at the time] who spoke Pashtun. We’re at war in Afghanistan and the main language of the Taliban is Pashtun. The answer here is to change our foreign policy so that we don’t have to depend on agencies like NSA to try to protect the country. You try to protect the country by having reasonable policies so that we won’t have to worry about terrorism so much. It’s just getting harder and harder to find them.
Q: I think most Americans know about NSA and have some general idea what it’s about, but I was surprised to read about the National Business Park, where there’s been this huge boom in private contractors doing NSA work since September 11.
A: That came as a huge surprise to me. I’ve watched NSA grow since 1979, and it really came as a shock to me when I saw the National Business Park and how huge it’s grown. What it is is all the private contractors doing what NSA used to do. You see Booz Allen [Hamilton] and Titan and General Dynamics, and then you look at the [local] newspaper and see all these companies advertising for intercept operators and network analysts. This agency, which used to be dedicated to having employees who would work there for 30 years, now is outsourcing so much. I have a statistic in there that in 2001 the NSA had 55 contracts with private firms and in 2005 it had 7,197. If you turn this into a huge [private] industry, and at the same time you’re deregulating the industry — if you look at the financial industry you see the problems you get into when you start deregulating, and that’s what they’ve done here. They’ve deregulated eavesdropping. There are no rules, and the people who are doing it aren’t even really accountable — they’re just employees of private companies. It gets very worrisome. These are things that are out there to find, but it seems so few people are out there looking. Congress seems to be paying no attention. Even before 9/11, Congress seemed very reluctant to criticize NSA or put restraints on NSA. It seemed like Congress was resisting the Administration’s push last spring. In February, the temporary [Protect America Act] ran out and the Bush administration was pushing very hard to have this new FISA law passed, and the House resisted it until July. They finally buckled in July when they realized the election was about four months away, because they’re all afraid of being accused of being weak on terrorism. But I wonder how many of them really knew much about NSA or the things they were voting for. The only way you’re going to know it is to go to a special room where there was classified information, and they couldn’t take notes, and have to sit there and read it, and how many of them are gonna do that?
Q: We’re talking before the presidential election, but I’m curious what you think might change in regard to the NSA under McCain or Obama, the latter of whom somewhat surprisingly voted for the FISA Amendments Law.
A: What’s interesting is that Obama seemed to have a lot of disagreements with the changes in the FISA Act early on, and he even threatened to filibuster early on against the legislation the way it [was] written. But then he compromised and voted for it in the end — he said sometimes you’ve gotta compromise, we need something and this is the best we can do. The question is whether you’re gonna stand up for principles when the times get tough or always just compromise. I think if he could have applied enough pressure they could have reworked it. Right now the FISA court is pretty well neutered. I don’t know where that goes. I don’t think McCain would make much of a change when it comes to NSA. It’s a question of where Obama’s gonna go. You can see his heart is in the right place; he says the right things when these issues come up. But the question is, down the road, is he going to give into political pressure and compromise away some of the things people are voting for him for, or is he gonna stand up?
Q; So where does the NSA go from here? Some of the stuff in the last section of The Shadow Factory reads like science-fiction — data-mining and artificial intelligence.
A: Right now they’re at a point where they’ve got enormous amounts of money, but they don’t seem to be getting much out of it. They’re getting hugely into this data-mining — look at that building they’re building down in San Antonio. And this is an agency that missed all these terrorist incidents, so what is this for? Is it good money after bad? The thing I worry about is when you do have so few people watching NSA and so few restrictions on data-mining that they just get carried away with it. That’s why they’re building that huge facility in San Antonio. Not only to store data, which you probably only need about 75 people for — Microsoft, which is building a very similar facility only a few miles away that’s almost exactly the same size, they only have 75. The NSA’s going to put 1,400 people in there. The only reason you need that many people is if you’re not just going to keep the routers humming, is if you’re actually going to dig into all the data in there. And what’s in there could be what I’m looking at on my computer right now, or web searches I’ve been making, or what books people are buying from Amazon or what websites they’re visiting. Those are the things that worry me.
Q: But, as we discussed, the NSA isn’t allowed to eavesdrop on domestic communications.
A: The restrictions are much less on data communications. The FISA act only really applies to phone communications or email. When Congress was looking at the NSA back in the ’70s, when the only thing [the agency] could do is listen to your hard-line telephone in your house, [Senator] Frank Church said that he didn’t want the country to go over into the abyss that was there if we ever let this agency get out of control, and that was back then. Look at today, when your every thought, almost, gets transmitted into electrons at one point, either walking down the street talking on a cell phone or sending an email or web-searching. Thirty years ago they didn’t have access to mail, ’cause it was in envelopes, and they couldn’t watch what books you pulled out of the library or look at what magazines you flip through at the newsstand. Now they get to all that stuff by watching your web searches and what sites you visit.
Q: Even with everything you know about the NSA, do you ever think to yourself, I worry too much about this stuff?
A: I’m not a very paranoid person. I couldn’t have written all these books if I was paranoid. But what bothers me is that there’s this huge agency out there, and there are so few people who know how it works and pay any attention to it. Look at the 9/11 Commission report, for example. They spent all this time looking at the CIA, and they spent no time looking at the NSA. That’s just par for the course. Journalists, everybody, seem to avoid looking at it because it’s surrounded by this wall of secrecy, and it’s highly technical. I think the thing that bothers me most was how easy it was to take this huge agency and turn it against the law. How easy it was, how few people knew. If it wasn’t for two reporters from the New York Times, we still might not know about it, if you think about it that way.”
“Thomas M. Tamm was entrusted with some of the government’s most important secrets. He had a Sensitive Compartmented Information security clearance, a level above Top Secret. Government agents had probed Tamm’s background, his friends and associates, and determined him trustworthy. It’s easy to see why: he comes from a family of high-ranking FBI officials. During his childhood, he played under the desk of J. Edgar Hoover, and as an adult, he enjoyed a long and successful career as a prosecutor. Now gray-haired, 56 and fighting a paunch, Tamm prides himself on his personal rectitude. He has what his 23-year-old son, Terry, calls a “passion for justice.” For that reason, there was one secret he says he felt duty-bound to reveal.
In the spring of 2004, Tamm had just finished a yearlong stint at a Justice Department unit handling wiretaps of suspected terrorists and spies—a unit so sensitive that employees are required to put their hands through a biometric scanner to check their fingerprints upon entering. While there, Tamm stumbled upon the existence of a highly classified National Security Agency program that seemed to be eavesdropping on U.S. citizens. The unit had special rules that appeared to be hiding the NSA activities from a panel of federal judges who are required to approve such surveillance. When Tamm started asking questions, his supervisors told him to drop the subject. He says one volunteered that “the program” (as it was commonly called within the office) was “probably illegal.”
Tamm agonized over what to do. He tried to raise the issue with a former colleague working for the Senate Judiciary Committee. But the friend, wary of discussing what sounded like government secrets, shut down their conversation. For weeks, Tamm couldn’t sleep. The idea of lawlessness at the Justice Department angered him. Finally, one day during his lunch hour, Tamm ducked into a subway station near the U.S. District Courthouse on Pennsylvania Avenue. He headed for a pair of adjoining pay phones partially concealed by large, illuminated Metro maps. Tamm had been eyeing the phone booths on his way to work in the morning. Now, as he slipped through the parade of midday subway riders, his heart was pounding, his body trembling. Tamm felt like a spy. After looking around to make sure nobody was watching, he picked up a phone and called The New York Times. That one call began a series of events that would engulf Washington— and upend Tamm’s life. Eighteen months after he first disclosed what he knew, the Times reported that President George W. Bush had secretly authorized the NSA to intercept phone calls and e-mails of individuals inside the United States without judicial warrants. The drama followed a quiet, separate rebellion within the highest ranks of the Justice Department concerning the same program. (James Comey, then the deputy attorney general, together with FBI head Robert Mueller and several other senior Justice officials, threatened to resign.) President Bush condemned the leak to the Times as a “shameful act.” Federal agents launched a criminal investigation to determine the identity of the culprit.
The story of Tamm’s phone call is an untold chapter in the history of the secret wars inside the Bush administration. The New York Times won a Pulitzer Prize for its story. The two reporters who worked on it each published books. Congress, after extensive debate, last summer passed a major new law to govern the way such surveillance is conducted. But Tamm—who was not the Times’s only source, but played the key role in tipping off the paper—has not fared so well. The FBI has pursued him relentlessly for the past two and a half years. Agents have raided his house, hauled away personal possessions and grilled his wife, a teenage daughter and a grown son. More recently, they’ve been questioning Tamm’s friends and associates about nearly every aspect of his life. Tamm has resisted pressure to plead to a felony for divulging classified information. But he is living under a pall, never sure if or when federal agents might arrest him. Exhausted by the uncertainty clouding his life, Tamm now is telling his story publicly for the first time. “I thought this [secret program] was something the other branches of the government—and the public—ought to know about. So they could decide: do they want this massive spying program to be taking place?” Tamm told NEWSWEEK, in one of a series of recent interviews that he granted against the advice of his lawyers. “If somebody were to say, who am I to do that? I would say, ‘I had taken an oath to uphold the Constitution.’ It’s stunning that somebody higher up the chain of command didn’t speak up.”
Tamm concedes he was also motivated in part by his anger at other Bush-administration policies at the Justice Department, including its aggressive pursuit of death-penalty cases and the legal justifications for “enhanced” interrogation techniques that many believe are tantamount to torture. But, he insists, he divulged no “sources and methods” that might compromise national security when he spoke to the Times. He told reporters Eric Lichtblau and James Risen nothing about the operational details of the NSA program because he didn’t know them, he says. He had never been “read into,” or briefed, on the details of the program. All he knew was that a domestic surveillance program existed, and it “didn’t smell right.” (Justice spokesman Dean Boyd said the department had no comment on any aspect of this story. Lichtblau said, “I don’t discuss the identities of confidential sources … Nearly a dozen people whom we interviewed agreed to speak with us on the condition of anonymity because of serious concerns about the legality and oversight of the secret program.” Risen had no comment.) Still, Tamm is haunted by the consequences of what he did—and what could yet happen to him. He is no longer employed at Justice and has been struggling to make a living practicing law. He does occasional work for a local public defender’s office, handles a few wills and estates—and is more than $30,000 in debt. (To cover legal costs, he recently set up a defense fund.) He says he has suffered from depression. He also realizes he made what he calls “stupid” mistakes along the way, including sending out a seemingly innocuous but fateful e-mail from his Justice Department computer that may have first put the FBI on his scent. Soft-spoken and self-effacing, Tamm has an impish smile and a wry sense of humor. “I guess I’m not a very good criminal,” he jokes.
At times during his interviews with NEWSWEEK, Tamm would stare into space for minutes, silently wrestling with how to answer questions. One of the most difficult concerned the personal ramifications of his choice. “I didn’t think through what this could do to my family,” he says. Tamm’s story is in part a cautionary tale about the perils that can face all whistleblowers, especially those involved in national-security programs. Some Americans will view him as a hero who (like Daniel Ellsberg and perhaps Mark Felt, the FBI official since identified as Deep Throat) risked his career and livelihood to expose wrongdoing at the highest levels of government. Others—including some of his former colleagues—will deride Tamm as a renegade who took the law into his own hands and violated solemn obligations to protect the nation’s secrets. “You can’t have runoffs deciding they’re going to be the white knight and running to the press,” says Frances Fragos Townsend, who once headed the unit where Tamm worked and later served as President Bush’s chief counterterrorism adviser. Townsend made clear that she had no knowledge of Tamm’s particular case, but added: “There are legal processes in place [for whistle-blowers’ complaints]. This is one where I’m a hawk. It offends me, and I find it incredibly dangerous.” Tamm understands that some will see his conduct as “treasonous.” But still, he says he has few regrets. If he hadn’t made his phone call to the Times, he believes, it’s possible the public would never have learned about the Bush administration’s secret wiretapping program. “I don’t really need anybody to feel sorry for me,” he wrote in a recent e-mail to NEWSWEEK. “I chose what I did. I believed in what I did.”
If the government were drawing up a profile of a national-security leaker, Tamm would seem one of the least likely suspects. He grew up in the shadow of J. Edgar Hoover’s FBI. Tamm’s uncle, Edward Tamm, was an important figure in the bureau’s history. He was once a top aide to Hoover and regularly briefed President Franklin Roosevelt on domestic intelligence matters. He’s credited in some bureau histories with inventing (in 1935) not only the bureau’s name, but its official motto: Fidelity, Bravery, Integrity. Tamm’s father, Quinn Tamm, was also a high-ranking bureau official. He too was an assistant FBI director under Hoover, and at one time he headed up the bureau’s crime lab. Tamm’s mother, Ora Belle Tamm, was a secretary at the FBI’s identification division. When Thomas Tamm was a toddler, he crawled around Hoover’s desk during FBI ceremonies. (He still remembers his mother fretting that his father might get in trouble for it.) As an 8-year-old, Tamm and his family watched John F. Kennedy’s Inaugural parade down Pennsylvania Avenue from the balcony of Hoover’s office, then located at the Justice Department. Tamm’s brother also served for years as an FBI agent and later worked as an investigator for the 9/11 Commission. (He now works for a private consulting firm.) Tamm himself, after graduating from Brown University in 1974 and Georgetown Law three years later, chose a different path in law enforcement. He joined the state’s attorney’s office in Montgomery County, Md. (He was also, for a while, the chairman of the county chapter of the Young Republicans.) Tamm eventually became a senior trial attorney responsible for prosecuting murder, kidnapping and sexual-assault cases. Andrew Sonner, the Democratic state’s attorney at the time, says that Tamm was an unusually gifted prosecutor who knew how to connect with juries, in part by “telling tales” that explained his case in a way that ordinary people could understand. “He was about as good before a jury as anybody that ever worked for me,” says Sonner, who later served as an appellate judge in Maryland.
In 1998, Tamm landed a job at the Justice Department’s Capital Case Unit, a new outfit within the criminal division that handled prosecutions that could bring the federal death penalty. A big part of his job was to review cases forwarded by local U.S. Attorneys’ Offices and make recommendations about whether the government should seek execution. Tamm would regularly attend meetings with Attorney General Janet Reno, who was known for asking tough questions about the evidence in such cases—a rigorous approach that Tamm admired. In July 2000, at a gala Justice Department ceremony, Reno awarded Tamm and seven colleagues in his unit the John Marshall Award, one of the department’s highest honors. After John Ashcroft took over as President Bush’s attorney general the next year, Tamm became disaffected. The Justice Department began to encourage U.S. attorneys to seek the death penalty in as many cases as possible. Instead of Reno’s skepticism about recommendations to seek death, the capital-case committee under Ashcroft approved them with little, if any, challenge. “It became a rubber stamp,” Tamm says. This bothered him, though there was nothing underhanded about it. Bush had campaigned as a champion of the death penalty. Ashcroft and the new Republican leadership of the Justice Department advocated its use as a matter of policy.
Tamm’s alienation grew in 2002 when he was assigned to assist on one especially high-profile capital case—the prosecution of Zacarias Moussaoui, a Qaeda terrorist arrested in Minnesota who officials initially (and wrongly) believed might have been the “20th hijacker” in the September 11 plot. Tamm’s role was to review classified CIA cables about the 9/11 plot to see if there was any exculpatory information that needed to be relinquished to Moussaoui’s lawyers. While reviewing the cables, Tamm says, he first spotted reports that referred to the rendition of terror suspects to countries like Egypt and Morocco, where aggressive interrogation practices banned by American law were used. It appeared to Tamm that CIA officers knew “what was going to happen to [the suspects]”—that the government was indirectly participating in abusive interrogations that would be banned under U.S. law. But still, Tamm says he was fully committed to the prosecution of the war on terror and wanted to play a bigger role in it. So in early 2003, he applied and was accepted for transfer to the Office of Intelligence Policy and Review (OIPR), probably the most sensitive unit within the Justice Department. It is the job of OIPR lawyers to request permission for national-security wiretaps. These requests are made at secret hearings of the Foreign Intelligence Surveillance Court, a body composed of 11 rotating federal judges.
Congress created the FISA court in 1978 because of well-publicized abuses by the intelligence community. It was designed to protect the civil liberties of Americans who might come under suspicion. The court’s role was to review domestic national-security wiretaps to make sure there was “probable cause” that the targets were “agents of a foreign power”—either spies or operatives of a foreign terrorist organization. The law creating the court, called the Foreign Intelligence Surveillance Act, made it a federal crime—punishable by up to five years in prison—for any official to engage in such surveillance without following strict rules, including court approval. But after arriving at OIPR, Tamm learned about an unusual arrangement by which some wiretap requests were handled under special procedures. These requests, which could be signed only by the attorney general, went directly to the chief judge and none other. It was unclear to Tamm what was being hidden from the other 10 judges on the court (as well as the deputy attorney general, who could sign all other FISA warrants). All that Tamm knew was that the “A.G.-only” wiretap requests involved intelligence gleaned from something that was obliquely referred to within OIPR as “the program.”
The program was in fact a wide range of covert surveillance activities authorized by President Bush in the aftermath of 9/11. At that time, White House officials, led by Vice President Dick Cheney, had become convinced that FISA court procedures were too cumbersome and time-consuming to permit U.S. intelligence and law-enforcement agencies to quickly identify possible Qaeda terrorists inside the country. (Cheney’s chief counsel, David Addington, referred to the FISA court in one meeting as that “obnoxious court,” according to former assistant attorney general Jack Goldsmith.) Under a series of secret orders, Bush authorized the NSA for the first time to eavesdrop on phone calls and e-mails between the United States and a foreign country without any court review. The code name for the NSA collection activities—unknown to all but a tiny number of officials at the White House and in the U.S. intelligence community—was “Stellar Wind.”
The NSA identified domestic targets based on leads that were often derived from the seizure of Qaeda computers and cell phones overseas. If, for example, a Qaeda cell phone seized in Pakistan had dialed a phone number in the United States, the NSA would target the U.S. phone number—which would then lead agents to look at other numbers in the United States and abroad called by the targeted phone. Other parts of the program were far more sweeping. The NSA, with the secret cooperation of U.S. telecommunications companies, had begun collecting vast amounts of information about the phone and e-mail records of American citizens. Separately, the NSA was also able to access, for the first time, massive volumes of personal financial records—such as credit-card transactions, wire transfers and bank withdrawals—that were being reported to the Treasury Department by financial institutions. These included millions of “suspicious-activity reports,” or SARS, according to two former Treasury officials who declined to be identified talking about sensitive programs. (It was one such report that tipped FBI agents to former New York governor Eliot Spitzer’s use of prostitutes.) These records were fed into NSA supercomputers for the purpose of “data mining”—looking for links or patterns that might (or might not) suggest terrorist activity. But all this created a huge legal quandary. Intelligence gathered by the extralegal phone eavesdropping could never be used in a criminal court. So after the NSA would identify potential targets inside the United States, counterterrorism officials would in some instances try to figure out ways to use that information to get legitimate FISA warrants—giving the cases a judicial stamp of approval.
It’s unclear to what extent Tamm’s office was aware of the origins of some of the information it was getting. But Tamm was puzzled by the unusual procedures—which sidestepped the normal FISA process—for requesting wiretaps on cases that involved program intelligence. He began pushing his supervisors to explain what was going on. Tamm says he found the whole thing especially curious since there was nothing in the special “program” wiretap requests that seemed any different from all the others. They looked and read the same. It seemed to Tamm there was a reason for this: the intelligence that came from the program was being disguised. He didn’t understand why. But whenever Tamm would ask questions about this within OIPR, “nobody wanted to talk about it.” At one point, Tamm says, he approached Lisa Farabee, a senior counsel in OIPR who reviewed his work, and asked her directly, “Do you know what the program is?” According to Tamm, she replied: “Don’t even go there,” and then added, “I assume what they are doing is illegal.” Tamm says his immediate thought was, “I’m a law-enforcement officer and I’m participating in something that is illegal?” A few weeks later Tamm bumped into Mark Bradley, the deputy OIPR counsel, who told him the office had run into trouble with Colleen Kollar-Kotelly, the chief judge on the FISA court. Bradley seemed nervous, Tamm says. Kollar-Kotelly had raised objections to the special program wiretaps, and “the A.G.-only cases are being shut down,” Bradley told Tamm. He then added, “This may be [a time] the attorney general gets indicted,” according to Tamm. (Told of Tamm’s account, Justice spokesman Boyd said that Farabee and Bradley “have no comment for your story.”) One official who was aware of Kollar-Kotelly’s objections was U.S. Judge Royce C. Lamberth, a former chief of the FISA court. Lamberth tells NEWSWEEK that when the NSA program began in October 2001, he was not informed. But the then chief of OIPR, James Baker, discovered later that year that program intelligence was being used in FISA warrants—and he raised concerns. At that point, Lamberth was called in for a briefing by Ashcroft and Gen. Michael Hayden, the NSA chief at the time. Lamberth made clear to Ashcroft that NSA program intelligence should no longer be allowed in any FISA warrant applications without his knowledge. If it did appear, Lamberth warned, he would be forced to rule on the legality of what the administration was doing, potentially setting off a constitutional clash about the secret program.
Lamberth stepped down as chief FISA judge when his term ended in May 2002, but Kollar-Kotelly asked him to continue as an adviser about matters relating to the program. In early 2004, Kollar-Kotelly thought something was amiss. According to Lamberth, she had concerns that the intelligence community, after collecting information on U.S. citizens without warrants, was again attempting to launder that intelligence through her court—without her knowledge. She “had begun to suspect that they were back-dooring information from the program into” FISA applications, Lamberth tells NEWSWEEK. Kollar-Kotelly drew the line and wouldn’t permit it. “She was as tough as I was,” says Lamberth, who had once barred a top FBI agent from his court when he concluded the bureau hadn’t been honest about FISA applications. “She was going to know what she was signing off on before she signed off … I was proud of her.” (Kollar-Kotelly declined to speak with NEWSWEEK.) Unbeknownst to Tamm, something else was going on at the Justice Department during this period. A new assistant attorney general, a law professor named Jack Goldsmith, had challenged secret legal opinions justifying the NSA surveillance program. (The controversial opinions, written by a young and very conservative legal scholar named John Yoo, had concluded that President Bush had broad executive authority during wartime to override laws passed by Congress and order the surveillance of U.S. citizens.) James Comey, the deputy attorney general, had agreed with Goldsmith and refused to sign off on a renewal of the domestic NSA program in March 2004. Attorney General Ashcroft was in the hospital at the time. The White House first tried to get an extremely ill Ashcroft, drugged and woozy, to overrule Comey, and then, after he refused, President Bush ordered the program to continue anyway. Comey, in turn, drafted a resignation letter. He described the situation he was confronting as “apocalyptic” and then added, “I and the Justice Department have been asked to be part of something that is fundamentally wrong,” according to a copy of the letter quoted in “Angler,” a book by Washington Post reporter Barton Gellman.
Tamm—who had no knowledge of the separate rebellion within the ranks of the Justice Department—decided independently to get in touch with Sandra Wilkinson, a former colleague of his on the Capital Case Unit who had been detailed to work on the Senate Judiciary Committee. He met with Wilkinson for coffee in the Senate cafeteria, where he laid out his concerns about the program and the unusual procedures within OIPR. “Look, the government is doing something weird here,” he recalls saying. “Can you talk to somebody on the intelligence committee and see if they know about this?” Some weeks passed, and Tamm didn’t hear back. So he e-mailed Wilkinson from his OIPR computer (not a smart move, he would later concede) and asked if they could get together again for coffee. This time, when they got together, Wilkinson was cool, Tamm says. What had she learned about the program? “I can’t say,” she replied and urged him to drop the subject. “Well, you know, then,” he says he replied, “I think my only option is to go to the press.” (Wilkinson would not respond to phone calls from NEWSWEEK, and her lawyer says she has nothing to say about the matter.) The next few weeks were excruciating. Tamm says he consulted with an old law-school friend, Gene Karpinski, then the executive director of a public-interest lobbying group. He asked about reporters who might be willing to pursue a story that involved wrongdoing in a national-security program, but didn’t tell him any details. (Karpinski, who has been questioned by the FBI and has hired a lawyer, declined to comment.) Tamm says he initially considered contacting Seymour Hersh, the investigative reporter for The New Yorker, but didn’t know where to reach him. He’d also noticed some strong stories by Eric Lichtblau, the New York Times reporter who covered the Justice Department—and with a few Google searches tracked down his phone number.
Tamm at this point had transferred out of OIPR at his own initiative, and moved into a new job at the U.S. Attorney’s Office. He says he “hated” the desk work at OIPR and was eager to get back into the courtroom prosecuting cases. His new offices were just above Washington’s Judiciary Square Metro stop. When he went to make the call to the Times, Tamm said, “My whole body was shaking.” Tamm described himself to Lichtblau as a “former” Justice employee and called himself “Mark,” his middle name. He said he had some information that was best discussed in person. He and Lichtblau arranged to meet for coffee at Olsson’s, a now shuttered bookstore near the Justice Department. After Tamm hung up the phone, he was struck by the consequences of what he had just done. “Oh, my God,” he thought. “I can’t talk to anybody about this.” An even more terrifying question ran through his mind. He thought back to his days at the capital-case squad and wondered if disclosing information about a classified program could earn him the death penalty.
In his book, “Bush’s Law: The Remaking of American Justice,” Lichtblau writes that he first got a whiff of the NSA surveillance program during the spring of 2004 when he got a cold call from a “walk-in” source who was “agitated about something going on in the intelligence community.” Lichtblau wrote that his source was wary at first. The source did not know precisely what was going on—he was, in fact, maddeningly vague, the reporter wrote. But after they got together for a few meetings (“usually at a bookstore or coffee shops in the shadows of Washington’s power corridors”) his source’s “credibility and his bona fides became clear and his angst appeared sincere.” The source told him of turmoil within the Justice Department concerning counterterrorism operations and the FISA court. “Whatever is going on, there’s even talk Ashcroft could be indicted,” the source told Lichtblau, according to his book.
Tamm grew frustrated when the story did not immediately appear. He was hoping, he says, that Lichtblau and his partner Risen (with whom he also met) would figure out on their own what the program was really all about and break it before the 2004 election. He was, by this time, “pissed off” at the Bush administration, he says. He contributed $300 to the Democratic National Committee in September 2004, according to campaign finance records. It wasn’t until more than a year later that the paper’s executive editor, Bill Keller, rejecting a personal appeal and warning by President Bush, gave the story a green light. (Bush had warned “there’ll be blood on your hands” if another attack were to occur.)
BUSH LETS U.S. SPY ON CALLERS WITHOUT COURTS, read the headline in the paper’s Dec. 16, 2005, edition. The story—which the Times said relied on “nearly a dozen current and former officials”—had immediate repercussions. Democrats, including the then Sen. Barack Obama, denounced the Bush administration for violating the FISA law and demanded hearings. James Robertson, one of the judges on the FISA court, resigned. And on Dec. 30, the Justice Department announced that it was launching a criminal investigation to determine who had leaked to the Times. Not long afterward, Tamm says, he started getting phone calls at his office from Jason Lawless, the hard-charging FBI agent in charge of the case. The calls at first seemed routine. Lawless was simply calling everybody who had worked at OIPR to find out what they knew. But Tamm ducked the calls; he knew that the surest way to get in trouble in such situations was to lie to an FBI agent. Still, he grew increasingly nervous. The calls continued. Finally, one day, Lawless got him on the phone. “This will just take a few minutes,” Lawless said, according to Tamm’s account. But Tamm told the agent that he didn’t want to be interviewed—and he later hired a lawyer. (The FBI said that Lawless would have no comment.)
In the months that followed, Tamm learned he was in even more trouble. He suspected the FBI had accessed his former computer at OIPR and recovered the e-mail he had sent to Wilkinson. The agents tracked her down and questioned her about her conversations with Tamm. By this time, Tamm was in the depths of depression. He says he had trouble concentrating on his work at the U.S. Attorney’s Office and ignored some e-mails from one of his supervisors. He was accused of botching a drug case. By mutual agreement, he resigned in late 2006. He was out of a job and squarely in the sights of the FBI. Nevertheless, he began blogging about the Justice Department for liberal Web sites. Early on the morning of Aug. 1, 2007, 18 FBI agents—some of them wearing black flak jackets and carrying guns—showed up unannounced at Tamm’s redbrick colonial home in Potomac, Md., with a search warrant. While his wife, wearing her pajamas, watched in horror, the agents marched into the house, seized Tamm’s desktop computer, his children’s laptops, his private papers, some of his books (including one about Deep Throat) and his family Christmas-card list. Terry Tamm, the lawyer’s college-age son, was asleep at the time and awoke to find FBI agents entering his bedroom. He was escorted downstairs, where, he says, the agents arranged him, his younger sister and his mother around the kitchen table and questioned them about their father. (Thomas Tamm had left earlier that morning to drive his younger son to summer school and to see a doctor about a shoulder problem.) “They asked me questions like ‘Are there any secret rooms or compartments in the house’?” recalls Terry. “Or did we have a safe? They asked us if any New York Times reporters had been to the house. We had no idea why any of this was happening.” Tamm says he had never told his wife and family about what he had done.
After the raid, Justice Department prosecutors encouraged Tamm to plead guilty to a felony for disclosing classified information—an offer he refused. More recently, Agent Lawless, a former prosecutor from Tennessee, has been methodically tracking down Tamm’s friends and former colleagues. The agent and a partner have asked questions about Tamm’s associates and political meetings he might have attended, apparently looking for clues about his motivations for going to the press, according to three of those interviewed. In the meantime, Tamm lives in a perpetual state of limbo, uncertain whether he’s going to be arrested at any moment. He could be charged with violating two laws, one concerning the disclosure of information harmful to “the national defense,” the other involving “communications intelligence.” Both carry penalties of up to 10 years in prison. “This has been devastating to him,” says Jeffrey Taylor, an old law-school friend of Tamm’s. “It’s just been hanging over his head for such a long time … Sometimes Tom will just zone out. It’s like he goes off in a special place. He’s sort of consumed with this because he doesn’t know where it’s going.” Taylor got a few clues into what the case was about last September when Agent Lawless and a partner visited him. The FBI agents sat in his office for more than an hour, asking what he knew about Tamm. The agents even asked about Tamm’s participation in a political lunch group headed by his former boss, Andrew Sonner, that takes place once a month at a Rockville, Md., restaurant. “What does that have to do with anything?” Taylor asked.
Agent Lawless explained. “This kind of activity”—leaking to the news media—”can be motivated by somebody who is a do-gooder who thinks that something wrong occurred,” Lawless said, according to Taylor. “Or it could be politically motivated by somebody who wants to cause harm.” If it was the former—if Tamm was a “do-gooder”—the government could face a problem if it tried to bring a case to trial. The jurors might sympathize with Tamm and “you’d face jury nullification,” said Lawless, according to Taylor, referring to a situation in which a jury refuses to convict a defendant regardless of the law. Just this month, Lawless and another agent questioned Sonner, the retired judge who had served as a mentor to Tamm. The agents wanted to know if Tamm had ever confided in Sonner about leaking to the Times. Sonner said he hadn’t, but he told the agents what he thought of their probe. “I told them I thought operating outside of the FISA law was one of the biggest injustices of the Bush administration,” says Sonner. If Tamm helped blow the whistle, “I’d be proud of him for doing that.”
Paul Kemp, one of Tamm’s lawyers, says he was recently told by the Justice Department prosecutor in charge of Tamm’s case that there will be no decision about whether to prosecute until next year—after the Obama administration takes office. The case could present a dilemma for the new leadership at Justice. During the presidential campaign, Obama condemned the warrantless-wiretapping program. So did Eric Holder, Obama’s choice to become attorney general. In a tough speech last June, Holder said that Bush had acted “in direct defiance of federal law” by authorizing the NSA program. Tamm’s lawyers say his case should be judged in that light. “When I looked at this, I was convinced that the action he took was based on his view of a higher responsibility,” says Asa Hutchinson, the former U.S. attorney in Little Rock and under secretary of the Department of Homeland Security who is assisting in Tamm’s defense. “It reflected a lawyer’s responsibility to protect the rule of law.” Hutchinson also challenged the idea—argued forcefully by other Bush administration officials at the time—that The New York Times story undermined the war on terror by tipping off Qaeda terrorists to surveillance. “Anybody who looks at the overall result of what happened wouldn’t conclude there was any harm to the United States,” he says. After reviewing all the circumstances, Hutchinson says he hopes the Justice Department would use its “discretion” and drop the investigation. In judging Tamm’s actions—his decision to reveal what little he knew about a secret domestic spying program that still isn’t completely known—it can be hard to decipher right from wrong. Sometimes the thinnest of lines separates the criminal from the hero.”
TOTAL INFORMATION AWARENESS
The New Thought Police: The NSA Wants to Know How You Think
by James Bamford
“The National Security Agency (NSA) is developing a tool that George Orwell’s Thought Police might have found useful: an artificial intelligence system designed to gain insight into what people are thinking. With the entire Internet and thousands of databases for a brain, the device will be able to respond almost instantaneously to complex questions posed by intelligence analysts. As more and more data is collected—through phone calls, credit card receipts, social networks like Facebook and MySpace, GPS tracks, cell phone geolocation, Internet searches, Amazon book purchases, even E-Z Pass toll records— it may one day be possible to know not just where people are and what they are doing, but what and how they think. The system is so potentially intrusive that at least one researcher has quit, citing concerns over the dangers in placing such a powerful weapon in the hands of a top-secret agency with little accountability.
Known as Aquaint, which stands for “Advanced QUestion Answering for INTelligence,” the project was run for many years by John Prange, an NSA scientist at the Advanced Research and Development Activity. Headquartered in Room 12A69 in the NSA’s Research and Engineering Building at 1 National Business Park, ARDA was set up by the agency to serve as a sort of intelligence community DARPA, the place where former Reagan national security advisor John Poindexter’s infamous Total Information Awareness project was born. [Editor’s note: TIA was a short-lived project founded in 2002 to apply information technology to counter terrorist and other threats to national security.] Later named the Disruptive Technology Office, ARDA has now morphed into the Intelligence Advanced Research Projects Activity (IARPA).
A sort of national laboratory for eavesdropping and other spycraft, IARPA will move into its new 120,000-square-foot home in 2009. The building will be part of the new M Square Research Park in College Park, Maryland. A mammoth two million-square-foot, 128-acre complex, it is operated in collaboration with the University of Maryland. “Their budget is classified, but I understand it’s very well funded,” said Brian Darmody, the University of Maryland’s assistant vice president of research and economic development, referring to IARPA. “They’ll be in their own building here, and they’re going to grow. Their mission is expanding.” If IARPA is the spy world’s DARPA, Aquaint may be the reincarnation of Poindexter’s TIA. After a briefing by NSA Director Michael Hayden, Vice President Dick Cheney, and CIA Director George Tenet of some of the NSA’s data mining programs in July 2003, Senator Jay Rockefeller IV, the vice chairman of the Senate Intelligence Committee, wrote a concerned letter to Cheney. “As I reflected on the meeting today,” he said, “John Poindexter’s TIA project sprung to mind, exacerbating my concern regarding the direction the administration is moving with regard to security, technology, and surveillance.”
The original goal of Aquaint, which dates back to the 1990s, was simply to develop a sophisticated method of picking the right needles out of a vast haystack of information and coming up with the answer to a question. As with TIA, many universities were invited to contribute brainpower to the project. But in the aftermath of the attacks on 9/11, with the creation of the NSA’s secret warrantless eavesdropping program and the buildup of massive databases, the project began taking on a more urgent tone. In a 2004 pilot project, a mass of data was gathered from news stories taken from the New York Times, the AP news wire, and the English portion of the Chinese Xinhua news wire covering 1998 to 2000. Then, 13 U.S. military intelligence analysts searched the data and came up with a number of scenarios based on the material. Finally, using those scenarios, an NSA analyst developed 50 topics, and in each of those topics created a series of questions for Aquaint’s computerized brain to answer. “Will the Japanese use force to defend the Senkakus?” was one. “What types of disputes or conflict between the PLA [People’s Liberation Army] and Hong Kong residents have been reported?” was another. And “Who were the participants in this spy ring, and how are they related to each other?” was a third. Since then, the NSA has attempted to build both on the complexity of the system—more essay-like answers rather than yes or no—and on attacking greater volumes of data.
“The technology behaves like a robot, understanding and answering complex questions,” said a former Aquaint researcher. “Think of 2001: A Space Odyssey and the most memorable character, HAL 9000, having a conversation with David. We are essentially building this system. We are building HAL.” A naturalized U.S. citizen who received her Ph.D. from Columbia, the researcher worked on the program for several years but eventually left due to moral concerns. “The system can answer the question, ‘What does X think about Y?'” she said. “Working for the government is great, but I don’t like looking into other people’s secrets. I am interested in helping people and helping physicians and patients for the quality of people’s lives.” The researcher now focuses on developing similar search techniques for the medical community.
A supersmart search engine, capable of answering complex questions such as “What were the major issues in the last 10 presidential elections?” would be very useful for the public. But that same capability in the hands of an agency like the NSA—absolutely secret, often above the law, resistant to oversight, and with access to petabytes of private information about Americans—could be a privacy and civil liberties nightmare. “We must not forget that the ultimate goal is to transfer research results into operational use,” said Aquaint project leader John Prange, in charge of information exploitation for IARPA.
Once up and running, the database of old newspapers could quickly be expanded to include an inland sea of personal information scooped up by the agency’s warrantless data suction hoses. Unregulated, they could ask it to determine which Americans might likely pose a security risk—or have sympathies toward a particular cause, such as the antiwar movement, as was done during the 1960s and 1970s. The Aquaint robospy might then base its decision on the type of books a person purchased online, or chat room talk, or websites visited—or a similar combination of data. Such a system would have an enormous chilling effect on everyone’s everyday activities—what will the Aquaint computer think if I buy this book, or go to that website, or make this comment? Will I be suspected of being a terrorist or a spy or a subversive?
Controlling brain waves
Collecting information, however, has always been far less of a problem for the NSA than understanding it, and that means knowing the language. To expand its linguistic capabilities, the agency established another new organization, the Center for Advanced Study of Language (CASL), and housed it in a building near IARPA at the M Square Research Park. But far from simply learning the meaning of foreign words, CASL, like Aquaint, attempts to find ways to get into someone’s mind and understand what he or she is thinking. One area of study is to attempt to determine if people are lying simply by watching their behavior and listening to them speak. According to one CASL document, “Many deception cues are difficult to identify, particularly when they are subtle, such as changes in verb tense or extremely brief facial expressions. CASL researchers are studying these cues in detail with advanced measurement and statistical analysis techniques in order to recommend ways to identify deceptive cue combinations.”
Another area of focus explores the “growing need to work with foreign text that is incomplete,” such as partly deciphered messages or a corrupted hard drive or the intercept of only one side of a conversation. The center is thus attempting to find ways to prod the agency’s cipher-brains to fill in the missing blanks. “In response,” says the report, “CASL’s cognitive neuroscience team has been studying the cognitive basis of working memory’s capacity for filling in incomplete areas of text. They have made significant headway in this research by using a powerful high-density electroencephalogram (EEG) machine acquired in 2006.” The effort is apparently directed at discovering what parts of the brain are used when very good cryptanalysts are able to guess correctly the missing words and phrases in a message. Like something out of a B-grade sci-fi movie, CASL is even trying to turn dull minds into creative geniuses by training employees to control their own brain waves: “The cognitive neuroscience team has also been researching divergent thinking: creative, innovative and flexible thinking valuable for language work. They are exploring ways to improve divergent thinking using the EEG and neurobiological feedback. A change in brain-wave activity is believed to be critical for generating creative ideas, so the team trains its subjects to change their brain-wave activity.”
“Thanks to Bush and Obama, the National Security Agency now knows more about you. Barack Obama will be in charge of the biggest domestic and international spying operation in history. Its prime engine is the National Security Agency (NSA)-located and guarded at Fort Meade, Maryland, about 10 miles northeast of Washington, D.C. A brief glimpse of its ever-expanding capacity was provided on October 26 by The Baltimore Sun’s national security correspondent, David Wood: “The NSA’s colossal Cray supercomputer, code-named the ‘Black Widow,’ scans millions of domestic and international phone calls and e-mails every hour…. The Black Widow, performing hundreds of trillions of calculations per second, searches through and reassembles key words and patterns, across many languages.”
In July, George W. Bush signed into law the FISA Amendments Act of 2008, which gives the NSA even more power to look for patterns that suggest terrorism links in Americans’ telephone and Internet communications. The ACLU immediately filed a lawsuit on free speech and privacy grounds. The new Bush law provides farcical judicial supervision over the NSA and other government trackers and databasers. Although Senator Barack Obama voted for this law, dig this from the ACLU: “The government [is now permitted] to conduct intrusive surveillance without ever telling a court who it intends to spy on, what phone lines and e-mail addresses it intends to monitor, where its surveillance targets are located, why it’s conducting the surveillance or whether it suspects any party to the communication of wrongdoing.” This gives the word “dragnet” an especially chilling new meaning.
The ACLU’s Jameel Jaffer, director of its National Security Project, adds that the new statute, warming the cold hearts of the NSA, “implicates all kinds of communications that have nothing to do with terrorism or criminal activity of any kind.” Why did Obama vote for this eye-that-never-blinks? He’s a bright, informed guy, but he wasn’t yet the President-Elect. The cool pragmatist wanted to indicate he wasn’t radically unmindful of national security-and that his previous vow to filibuster such a bill may have been a lapse in judgment. It was. What particularly outraged civil libertarians across the political divide was that the FISA Amendments Act gave immunity to the telecommunications corporations-which, for seven years, have been a vital part of the Bush administration’s secret wiretapping program- thereby dismissing the many court cases brought by citizens suing those companies for violating their individual constitutional liberties. This gives AT&T, Verizon, and the rest a hearty signal to o on pimping for the government. That’s OK with the Obama administration? Please tell us, Mr. President.
Some of us began to see how deeply and intricately the telecoms were involved in the NSA’s spying when-as part of an Electronic Frontier Foundation lawsuit-it was revealed by a former AT&T technician, Mark Klein, that he had found a secret AT&T room in which the NSA was tapping into the telecom giant’s fiber-optic cables. On National Public Radio on November 7, 2007, he disclosed: “It’s not just AT&T’s traffic going through these cables, because these cables connected AT&T’s network with other networks like Sprint, Qwest [the one firm that refused to play ball with the government], Global Crossing, UUNet, etc.” What you should know is that these fruitful cables go through “a splitter” that, as Klein describes, “just copies the entire data without any selection going on. So it’s a complete copy of the data stream.” Under the new FISA Amendments Act, there are no limits on where this stream of data can be disseminated. As in the past, but now with “legal” protection under the 2008 statute, your suspicious “patterns” can go to the FBI, Homeland Security, the CIA, and state and local police that are also involved in “fusion centers” with the FBI.
Consider the enormous and bottomless databases that the government-and its NSA-can have a ball with. In James Bamford’s The Shadow Factory (Doubleday)-a new book that leads you as far as anyone has gone into the bowels of the NSA-he notes: “For decades, AT&T and much of the rest of the telecommunications industry have had a very secret, very cozy relationship with the NSA.” In AT&T’s case, he points out, “its international voice service carried more than 18 billion minutes per year, reaching 240 countries, linking 400 carriers, and offering remote access via 19,500 points of presence in 149 countries around the globe.” Voilá! Also, he notes: “Much of those communications passed through that secret AT&T room that Klein found on Folsom Street in downtown San Francisco.”
There’s a lot more to come that we don’t know about. Yet. In The Shadow Factory, James Bamford quotes Bush’s Director of National Intelligence Mike McConnell as saying that this wiretapping program was and is “only one program of many highly secret programs approved by Bush following the attacks on 9/11” (emphasis added). McConnell also said of the NSA’s nonstop wiretapping: “This is the only aspect of those various activities whose existence has officially been acknowledged.” Come on, Mike. Bush acknowledged the NSA’s flagrant contempt of the First and Fourth amendments only after The New York Times broke the story in December 2005. When the Times executive editor, Bill Keller, first decided to hold the explosive story for a year, General Michael Hayden-the former head of the NSA who is currently running the CIA-was relieved because he didn’t want the news to get out that “most international communications pass through [these telecommunications] ‘switching,'” Bamford reports. It would blow the cover off those corporate communicators. Now, AT&T, Verizon, et al., don’t have to worry, thanks to the new law.
There are increasing calls, inside and outside of Congress, for President Obama to urge investigations by an independently bipartisan commission-akin to the 9/11 Commission-to get deeply into the many American and international laws so regally broken by Bush and his strutting team. But there is so much still to find out about the NSA’s “many highly secret programs” that a separate commission is sorely needed to probe exclusively into the past and ongoing actions of the Black Widow and other NSA lawless intrusions into our privacy and ideas. President Obama could atone for his vote that supported the FISA Amendments Act of 2008 by appointing such a bipartisan commission composed of technology experts who are also familiar with the Constitution. Bamford says that the insatiable NSA is “developing an artificial intelligence system designed to know what people are thinking.” Here come the thought police!”
Spying NSA’s failures : Bamford looks into the mistakes made by the
secretive agency protecting the nation
by David Wood / October 26, 2008
Review of The Shadow Factory By James Bamford
“The bad news in James Bamford’s fascinating new study of the National Security Agency is that Big Brother really is watching. The worse news, according to this veteran journalist, is that Big Brother often listens in on the wrong people and sometimes fails to recognize critical information, like the fact that terrorists are gathering and plotting an attack. When it does find a critical nugget like that, it occasionally files it away somewhere and doesn’t tell anybody. This is a tale of bad news, told by a master whose two previous books on the NSA, The Puzzle Palace (1982) and Body of Secrets (2001), laid bare some of the machinations of the world’s largest and most technologically sophisticated spy agency. In brisk and colorful narrative, The Shadow Factory details the agency’s failure on Sept. 11 (the hijackers, on whom the NSA had been eavesdropping for 18 months without sharing the intelligence with the FBI or CIA, were camped out late that summer virtually on the NSA’s doorstep, in Laurel).
Bamford whisks the reader through the NSA’s embarrassing failure to figure out that Saddam Hussein had no weapons of mass destruction and through the distressing post-Sept. 11 years when the agency demonstrated both technical gee-whizzery and brash law-breaking. The book is certain to raise questions about whether the NSA, with headquarters in those huge, foreboding structures just off the Baltimore-Washington Parkway on Fort Meade Road, ever can operate effectively and efficiently – and legally. Bamford convincingly argues that the agency, grown from a few creative code-breakers into a vast network of sensors, wiretaps, robo-eavesdroppers, secret data-miners and storage bunkers, broke the law and spied on Americans and nearly got away with it. His detailed descriptions of secret underground fiber-optic wiretaps and clandestine operations centers persuasively describe the NSA’s expanding reach.
Yet Bamford might have acknowledged that reporting on a complex organization whose effectiveness requires secrecy is an inherently incomplete work: Its successes are unknown. Surely, the NSA has done valuable work in identifying and tracking terrorists, achievements not noted by Bamford. The book is “a disservice” to the NSA employees who seek to protect the nation while safeguarding Americans’ privacy, an agency spokeswoman, Judith A. Emmel, said in a statement. Of course, the agency’s eavesdroppers and analysts are motivated, hard-working people, often forward-deployed in Iraq and Afghanistan. Army Sgt. Trista Leah Moretti, an NSA cryptologist killed in a mortar attack in southern Iraq on June 25, 2007, is the most recent entry on the agency’s Memorial Wall.
The NSA’s former director, Michael Hayden, once described the NSA’s eavesdroppers as “people who … go shopping in Glen Burnie and their kids play soccer in Laurel. And they know the law. They know American privacy better than the average American, and they’re dedicated to it.” But as history has proved time and time again, dedicated and well-intentioned people can be overwhelmed by the imperatives of the institution within which they work. Can the NSA itself be trusted, in secret, to make the fine judgment calls between protecting Americans and spying on them?
Bamford’s history is not reassuring. It was Hayden, after all, who authorized Operation Highlander. It siphoned all phone and e-mail traffic off the Inmarsat satellite communications system used by American troops, the Red Cross, the U.N. and journalists, including those at The Baltimore Sun, to call home from Iraq. NSA analysts listened in on and recorded “incredibly intimate personal conversations,” one analyst told Bamford, who said she was shocked and distressed (her story has been corroborated by some of her NSA colleagues and disputed by others). On any given day, Bamford writes, the NSA had been spying on as many as 500 Americans at home and 7,000 abroad.
Even now, he writes, the NSA has “the capacity to make tyranny total in America. Only law ensures that we never fall into that abyss.” Despite Bamford’s burning distrust of the agency, he got and shares astonishing access to No Such Agency, as the NSA is sometimes known. Here, courtesy of the eavesdroppers, is Osama bin Laden’s phone number: 00-873-6825-0533 (surely disconnected by this time). Most convincingly, Bamford guides the reader through the NSA’s greatest challenge: staying ahead of the explosive growth in volume and types of communications. Voice traffic alone increases 20 percent a year. Digital cell phones and fiber-optic cables vastly complicate the eavesdroppers’ job. Today, the NSA’s colossal Cray supercomputer, code-named the “Black Widow,” scans millions of domestic and international phone calls and e-mails every hour. That’s harder than it sounds: For purposes of speed and encryption, many of these communications are transmitted in fragments. The Black Widow, performing hundreds of trillions of calculations per second, searches through and reassembles key words and patterns, across many languages. Storing all this data, Bamford reports, is already an enormous headache for the NSA. But the larger and more disturbing issue is not so much collecting all that data, but analyzing, digesting and using it. “Our ability to collect stuff,” a senior NSA official acknowledged to Bamford, “far outstrips our ability to understand what we collect.”