Explaining this fact is not going to be easy. Commentators often now refer to President Bush's decision to invade Iraq as "a war of choice," which means that it was not provoked. The usual word for an unprovoked attack is aggression. Why did Americans -- elected representatives and plain citizens alike -- accede so readily to this act of aggression, and why did they question the President's arguments for war so feebly? The whole business is painfully awkward to consider, but it will not go away. If the Constitution forbids a president anything it forbids war on his say-so, and if it insists on anything it insists that presidents are not above the law. In plain terms this means that presidents cannot enact laws on their own, or ignore laws that have been enacted by Congress.
The Foreign Intelligence Surveillance Act of 1978 is such a law; it was enacted to end years of routine wiretapping of American citizens who had attracted official attention by opposing the war in Vietnam. The express purpose of the act was to limit what presidents could ask intelligence organizations to do. But for limits on presidential power to have meaning Congress and the courts must have the fortitude to say no when they think no is the answer.
In public life as in kindergarten, the all-important word is no. We are living with the consequences of the inability to say no to the President's war of choice with Iraq, and we shall soon see how the Congress and the courts will respond to the latest challenge from the White House -- the claim by President Bush that he has the right to ignore FISA's prohibition of government intrusion on the private communications of Americans without a court order, and his repeated statements that he intends to go right on doing it.
Nobody was supposed to know that FISA had been brushed aside. The fact that the National Security Agency (NSA), America's largest intelligence organization, had been turned loose to intercept the faxes, e-mails, and phone conversations of Americans with blanket permission by the President remained secret until the New York Times reporters James Risen and Eric Lichtblau learned over a year ago that it was happening. An early version of the story was apparently submitted to the Times' editors in October 2004, when it might have affected the outcome of the presidential election. But the Times, for reasons it has not clearly explained, withheld the story until mid-December 2005 when the newspaper's publisher and executive editor -- Arthur Sulzberger Jr. and Bill Keller -- met with President Bush in the Oval Office to hear his objections before going ahead. Even then certain details were withheld.
What James Risen learned in the course of his reporting can be found in his newly published book State of War: The Secret History of the CIA and the Bush Administration, a wide-ranging investigation of the role of intelligence in the origins and the conduct of the war in Iraq. Risen contributes much new material to our knowledge of recent intelligence history. He reports in detail, for example, on claims that CIA analysts quit fighting over exaggerated reports of Iraqi weapons of mass destruction as word spread in the corridors at Langley that the President had decided to go to war no matter what the evidence said; that the Saudi government seized and then got rid of tell-tale bank records of Abu Zubaydah, the most important al-Qaeda figure to be captured since September 11; and that "a handful of the most important al Qaeda detainees" have been sent for interrogation to a secret prison codenamed "Bright Light." One CIA specialist in counterterror operations told Risen, "The word is that once you get sent to Bright Light, you never come back."
Digging out intelligence history is a slow process, resisted by officials at every step of the way, and Risen's work will be often quoted in future accounts of the Iraq war. But nothing else in Risen's book rivals the NSA story in importance, revealing that the President not only authorized the NSA to eavesdrop on Americans without seeking court orders, but to listen in a new way, by intercepting a large volume of communications among categories of people, and then analyzing or "mining" the data in those calls for suspicious patterns that might offer "potential evidence of terrorist activity."
"This is the biggest secret I know about," one official told Risen. The eavesdropping effort is technically known as a "special access program" (SAP), which means that its existence and the information it collects are both tightly held. Within the government, Risen tells us, witting officials referred to it simply as "the program," and even the legal opinions justifying it are classified. Risen traces the origins of the program back to the brief war that overthrew the Taliban government in Afghanistan and resulted in the capture of many al-Qaeda suspects along with their cell phones and computers. These suspects had been calling and e-mailing people throughout the world, many of whom, inevitably, were in the United States, raising understandable fears of new terrorist attacks. But according to Risen, the NSA does not limit itself to monitoring numbers provided by the CIA from captured al-Qaeda phone books, targets for which there is some degree of "probable cause" to think they might be terrorist-connected. Those phone numbers provide only the jumping-off point for the program. The NSA has since broadened its effort by establishing "its own internal checklist" to pinpoint phone numbers and addresses of interest, and it is likely that the items on the list are checked off by a computer program in a nanosecond, not by analysts exercising deliberate judgment.
How big is the target list? At any given moment, Risen believes, the NSA may be "eavesdropping on as many as five hundred people in the United States...." But his number of five hundred should not be interpreted as an outer limit. The actual volume of intercepted calls is almost certainly a very great deal larger, going beyond communications between known, named persons. Modern eavesdropping seldom mirrors the classic wiretap of yesteryear when FBI agents with earphones might record hundreds of hours of a Mafia chief chatting with his underboss in New York's Little Italy. The idea now is to see if anyone on the phone in New York or New Jersey sounds in any way like a Mafia chief. A dinner of linguine with clams in a known Mafia hangout could be enough to warrant a further look. The al-Qaeda phone book numbers were the crack in the door; follow-up targets are simply numbers or e-mail addresses, leading to other numbers and e-mail addresses, all plucked from the torrents of traffic transmitted by the switching systems of the major American telecommunications companies, which daily handle two billion phone calls and perhaps ten times as many e-mail messages. What Risen discovered, in short, was a program best described as "big."
Under existing law the NSA should have sought permission from the secret FISA court in Washington before listening in on the communications of any "US persons" -- basically, American corporations, citizens, and others lawfully inside the United States -- who had turned up in al-Qaeda phone books and directories. The law makes provision for emergencies: if investigators feel they don't have time for legal rigmarole they can act first and then seek permission within the following three days. This was not done. President Bush insisted on New Year's Day that "This is a limited program... it's limited to calls from outside the United States to calls within the United States. But they are of known -- numbers of known al-Qaeda members or affiliates." But it seems clear that the NSA program quickly spilled beyond its original limits; the real reason for ignoring the FISA courts is probably a savvy guess that the courts would not approve what the administration wants to do.
Listening to specific persons was only part of it, and not the greater part. What Risen learned, which has been backed up by other press accounts in recent weeks, is that the counterterror investigators from the beginning wanted to cast the net wide -- to listen to all the people in the al-Qaeda phone books, and then broaden their search to the still wider circle of people the phone book names were in touch with, and go on to check out all their contacts as well. If the first generation of targets numbered a hundred, let's say, and each of them had been talking to a hundred people in a second generation of targets, then even a third generation search could easily sweep up a million people. You can see why investigators desperate to prevent any repetition of the attacks of September 11 would have favored this rapid and wide casting of the net, but that sort of industrial-scale fishing expedition is exactly what the FISA courts were established to prevent.
In the days after the Risen?Lichtblau story first appeared President Bush, Attorney General Alberto Gonzales, the head of the NSA at the beginning of the program, General Michael Hayden, and others all defended the program as urgent, successful, justified by acts of Congress and the President's powers under the constitution, sharply limited in scope, approved by members of Congress who had been briefed on the program, and carefully managed to protect the civil liberties and other rights of Americans.
"The whole key here is agility," said General Hayden.
"What we're trying to do is learn of communications, back and forth, from within the United States to overseas members of al-Qaeda," said Gonzales. "That's what this program is about. This is not about wiretapping everybody. This is about a very concentrated, very limited program focused on gaining information about our enemy."
"Dealing with al-Qaeda is not simply a matter of law enforcement," President Bush said in a press conference on December 19.
"It requires defending the country against an enemy that declared war against the United States.... So, consistent with US law and the Constitution, I authorized the interception of international communications of people with known links to al-Qaeda and related terrorist organizations.... Leaders in the United States Congress have been briefed more than a dozen times on this program.... I've reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for so long as... the nation faces the continuing threat...."
The President's carefully worded statement casts a troubling new light on his insistence that we are fighting a "war on terror" and that he is a "wartime president." Constitutional lawyers have long argued about the limits of presidential or executive power, but all agree that the limits are more elastic in wartime, and it is increasingly evident that the Bush administration has treated this distinction as a barn door. The shock caused by the revelation of the NSA program is not centered on concern for the civil liberties of al-Qaeda terrorists but on the scale, still unknown, of the eavesdropping authorized by the President; on his refusal to use the courts or seek any change in the governing laws; and on his blanket claim that Article Two of the Constitution gives him, as president and commander in chief of the armed forces, both the responsibility for defending the country and "the authority necessary to fulfill it."
Even some Republican leaders find this broad claim troubling. Senator Arlen Specter, chairman of the Senate's Judiciary Committee, has announced that he will hold hearings on the NSA program. "I am skeptical of the attorney general's citation of authority, but I am prepared to listen," he said in December. "You can't have the administration and a select number of members [of Congress, those briefed by the White House] alter the law. It can't be done."
In an interview with Fox News on January 19, Vice President Dick Cheney said such briefings "have occurred at least a dozen times. I presided over most of them." One of those briefings, possibly the first, was held in Vice President Cheney's office on July 17, 2003, four months after the American invasion of Iraq and a year after the NSA program began. Present were Representatives Jane Harman and Porter Goss, now the director of the CIA; and Senators Pat Roberts and John D. Rockefeller. Briefing them were Goss's predecessor at the CIA, George Tenet, and General Hayden of the NSA. There has been no published account of what the members of Congress were told about the nature, rationale, justification, and scale of the program. They were neither permitted to take notes nor to discuss what they heard with any other persons. Far from feeling that the administration had fulfilled its obligations under existing law, Senator Rockefeller handwrote a brief letter to Cheney the same day
"to reiterate my concern regarding the sensitive intelligence issues we discussed today.... Clearly, the activities we discussed raise profound oversight issues.... Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities. As I reflected on the meeting today, and the future we face, John Poindexter's TIA project sprung to mind, exacerbating my concern...."
TIA stands for Total Information Awareness, an intelligence program conceived in the Pentagon's Defense Advanced Research Projects Agency (DARPA) in the year following the attacks of September 11. It was designed to collect and exploit digital records of all kinds from private and public compilers of information -- phone records, bank records, credit card records, police records, medical records, travel records -- basically everything that is recorded about individuals. Running the program was John Poindexter, a former Navy admiral and national security advisor under President Reagan who had been indicted and convicted on seven felony charges during the Iran-contra investigation in the early 1990s, convictions later overturned on appeal. When the New York Times first published a description of TIA in December 2002, the fact that Poindexter was running it proved a fatal debility, and in September 2003 Congress killed funding for the Pentagon's Information Awareness Office.
But Poindexter's retirement and the end of the IAO did not extinguish official hopes for "data-mining," a computer-intensive approach to finding meaning in apparently random patterns. This, in fact, is basically what the NSA has always done -- collect communications from targets of interest and attack them with "tools," which are basically computer programs that seek patterns in apparently random letter and number groups. Data-mining seeks patterns in random actions -- buying, selling, check-writing, getting on planes, and so on -- rather than in the numbers and letters that make up codes. Data-mining is not a way to find out what persons of interest have been up to; it is a way to identify persons of interest among the general population -- persons, in short, who have not been detected doing anything that might convince a judge on the FISA court to issue a warrant for surveillance. Checking out US persons contacted by al-Qaeda would have raised no red flags with FISA judges; the larger and more significant part of the program uncovered by James Risen -- the part which the administration did not want to describe to the FISA court or to members of Congress who could have amended the law; the part, in fact, which the administration still hopes to keep secret and continue -- is the use of data-mining techniques by the NSA to do what Congress refused to allow Poindexter and the Pentagon to do. And that is to generate large numbers of names -- not dozens, thousands -- for the FBI to investigate.
John Poindexter and Total Information Awareness were one bell that rang loudly in the mind of Senator Rockefeller after his briefing in Cheney's office. It is probable that another has rung since -- the testimony of John Bolton during his confirmation hearings last summer to be U.S. ambassador to the UN, when he said that on ten occasions he had formally asked the NSA to identify the "U.S. persons" who had been party to, or perhaps only mentioned in, communications intercepted by the agency and included in reports distributed to others in the government. The fight over the administration's refusal to identify the nineteen persons who aroused Bolton's curiosity in those ten communications was one reason President Bush abandoned efforts to force a Senate vote and instead made an interim appointment of Bolton to the UN post while Congress was in recess. But the argument while it continued jarred loose additional information about the scale of NSA activity -- for example, the State Department's admission that Bolton's colleagues had made over four hundred requests for the identities of U.S. persons in NSA reports; that the NSA had been asked as many as 3,500 times by other agencies to fill in the names of U.S. persons, and that the total number of names provided to other agencies was greater than 10,000.
Who are these people? Some of them were probably included in a database of 1,519 "suspicious incidents" compiled by the Pentagon's Counterintelligence Field Activity, an office charged with defending military bases, according to a report broadcast by NBC a few days before the original New York Times story on the NSA program. On examination, the Pentagon's "suspicious incidents" were simply public protests of the sort watched, photographed, investigated, and wiretapped during the Vietnam War under the program that led to the enactment of FISA twenty-five years ago. At that time the Pentagon's database had ballooned to 18,000 names.
Of the numerous questions facing investigators for the Judiciary Committee the easy ones will concern the legality of the program. It was patently illegal under FISA and the only argument for letting the President get away with ignoring FISA is that he is prepared to make a fight of it. No committee headed by Republicans will do more than chide him on the law. The questions hardest to answer will be what the NSA actually did, and whether it served any useful purpose. A recent New York Times story contradicts the President's claim that the NSA program was "limited... to known al-Qaeda members or affiliates." Citing anonymous FBI officials, the Times claimed that the NSA flooded the bureau with "thousands" of names per month to check out for possible terrorist connections. Far from being a "vital tool," as described by President Bush, the program was a distracting time waster that sent harried FBI agents down an endless series of blind alleys chasing will-o'-the-wisp terrorists who turned out to be schoolteachers. And far from saving "thousands of lives," as claimed by Vice President Dick Cheney in December 2005, the NSA program never led investigators to a genuine terrorist not already under suspicion, nor did it help them to expose any dangerous plots. So why did the administration continue this lumbering effort for three years? Outsiders sometimes find it tempting to dismiss such wheel-spinning as bureaucratic silliness, but I believe that the Judiciary Committee will find, if it is willing to persist, that within the large pointless program there exists a small, sharply focused program that delivers something the White House really wants. This it will never confess willingly.
Over the next few months the White House will be fighting a two-front war to preserve its secrets -- one against the Judiciary Committee, as just described, and a second against the Senate Intelligence Committee, which has committed itself to a renewed effort to investigate the administration's drum-beating for war with Iraq by citing scary reports of Saddam Hussein's weapons of mass destruction -- reports that were virtually all wrong, and in some cases were little short of fabricated.
The committee's chairman, Senator Pat Roberts, promised before the 2004 presidential election that "phase two" of its investigation would address the administration's actual use of the intelligence it received, flawed as it was. This was something of a minefield. On their face, many statements by Bush, Cheney, National Security Advisor Condoleezza Rice, and Secretary of Defense Donald Rumsfeld appeared to go well beyond even the exaggerated claims made by the CIA. After Bush won a second term the Republican Roberts not surprisingly dropped "phase two," saying he no longer saw the point. But in November Senator Harry Reid, a Democrat on the Senate Intelligence Committee, revived phase two when he invoked a rarely used parliamentary rule to call for a secret session of the Senate to discuss new evidence suggesting that substantial doubts about WMD intelligence had been suppressed before the war.
Risen found evidence of that, too. Included in his book is a new account of a pre-war CIA program conceived by the agency's assistant director for intelligence collection, Charles Allen, to send Iraqi-Americans to Baghdad to ask scientist-relatives about WMDs. A chief target of the new program was Iraq's effort to develop nuclear weapons, the subject of intense ongoing scrutiny after a son-in-law of Saddam Hussein defected in mid-1995 to Amman, Jordan, where he described WMD programs to UN officials. Sawsan Alhaddad, a woman doctor working and living in Cleveland, was one of about thirty Iraqis dispatched to Baghdad under this program in late summer 2002. When she returned in September she told CIA debriefers in a Virginia hotel room that her brother, an electrical engineer who had joined the Iraqi nuclear program in the early 1980s, had insisted the nuclear weapons program was dead, shut down years earlier. The other Iraqis all said the same thing only months before the US invasion of Iraq in March 2003, but their reports were bottled up in the CIA.
The agency, it turns out, had heard the same thing from many sources, including Hussein's defector son-in-law, General Hussein Kamal, who was fool enough to return to Baghdad, where he was executed. But before leaving, Kamal told the UN that Iraq's WMD program, larger and more advanced than the CIA had believed before the first Gulf War in 1991, had been closed down
"after visits of [UN] inspection teams. You have important role in Iraq with this. You should not underestimate yourself. You are very effective in Iraq.... All chemical weapons were destroyed. I ordered destruction of all chemical weapons. All weapons -- biological, chemical, missile, nuclear were destroyed.... In the nuclear area, there were no weapons. Missile and chemical weapons were real weapons. Our main worry was Iran and they were [intended for use] against them."
Kamal's report, like Sawsan Alhaddad's and many others, were never cited in the October 2002 National Intelligence Estimate used to convince Congress to vote for war. The pattern is clear; evidence of Iraqi WMDs, however flimsy, was treated like scripture while information contradicting that evidence, however clear, was bottled up and never left the building. On three separate occasions, for example, in mid-2001, mid-2002, and January 2003, just before the war, the CIA asked the French for their evaluation of the now-infamous reports that Iraq was trying to buy "yellowcake" uranium ore from Niger. According to the Los Angeles Times of December 11, 2005, the French intelligence chief at the time, Alain Chouet, said that the answer was the same in each instance -- nothing to it.
The French were in a position to know; uranium ore in Niger was all mined by French companies. In mid-2002 the French even told the CIA that the Italian documents reporting the purchase were forgeries, something the CIA did not even attempt to examine on its own for another year; and a few months later, "at about the same time as the State of the Union address" when the President cited the yellowcake as alarming evidence of Saddam Hussein's nuclear ambitions, the Italians also told the Americans that the documents were forgeries. In similar fashion, claims that Iraq was providing al-Qaeda with training in the use of poison gases, cited by Secretary of State Colin Powell at the UN in February 2003, were also contradicted by reports the CIA had but chose to ignore.
In public debate it is customary at this point to ask, in a voice of amazed horror: How could this have happened? Are these intelligence professionals all community college dropouts? Have they forgotten everything they learned in spy school? My own view is that inconvenient evidence that angers policymakers and threatens careers cannot be pushed under the rug by intelligence officers unless they are fully aware of each step in the series -- they know it is evidence, they know it is inconvenient, they know it will anger policymakers, they know their careers will be threatened, and they know they are pushing evidence in the direction of a rug.
James Risen is not willing to go so far. His book is filled with evidence supporting this interpretation, but he seems reluctant to embrace it. "[Paul] Wolfowitz personally complained to Tenet about the CIA's analytical work on Iraq and al-Qaeda," Risen says in discussing the use of intelligence to justify the war. Can we be in doubt why Wolfowitz complained, or why the agency assured Powell that Iraq was training al-Qaeda, scout's honor? When CIA officers told Tenet the war would be a mistake, Risen notes, "he would just come back from the White House and say they are going to do it." Risen sums up Tenet's attitude thus: "War with Iraq was inevitable, and it was time for the CIA to do its part." That seems clear enough; surely Risen means that the agency's part was to help beat the drum for war. But then Risen swings back, like a man facing snakes on one side and alligators on the other. Why was the information reported by Sawsan Alhaddad and the other Iraqis bottled up at the agency? "Petty turf battles and tunnel vision of the agency's officials" is Risen's first answer. In the next sentence he braces up, then wilts again:
"...Doubts were stifled because of the enormous pressure that officials at the CIA...felt to support the administration. CIA director George Tenet and his senior lieutenants became so...fearful of creating a rift with the White House, that they created a climate within the CIA in which warnings that the available evidence on Iraqi WMD was weak were either ignored or censored. Tenet and his senior aides may not have meant to foster that sort of work environment -- and perhaps did not even realize they were doing it...."
What can Risen be thinking? How could they not realize they were doing it? They were running the place.
Paul Wolfowitz, the undersecretary of defense, was not the only official to let the CIA know what he wanted to hear. Rumsfeld set up a special office in the Pentagon to "re-look" the intelligence on Iraqi WMDs and then urged Tenet to listen to its findings. Vice President Cheney crossed the Potomac more than once to ask questions -- the same questions, over and over. John Bolton tried to fire resistant analysts in the State Department's intelligence shop and at the CIA; they kept their jobs, but who could fail to get the message? Robert Hutchings, a former chief of the National Intelligence Council, the group that wrote the October 2002 NIE, described Bolton's way of mining intelligence reports to come up with the administration's version of the world. "He took isolated facts and made much more to build a case than the intelligence warranted," he said. "It was a sort of cherry-picking of little factoids and little isolated bits that were drawn out to present the starkest-possible case."
These were not intellectual exercises; Bolton needed custom-built intelligence to support the administration's policies. "When policy officials came back repeatedly to push the same kind of judgments, and push the intelligence community to confirm a particular set of judgments," Hutchings said, "it does have the effect of politicizing intelligence, because the so-called ?correct answer' becomes all too clear." Has the Senate Intelligence Committee got the fortitude to accept the implications of these facts and many others just like them?
The systematic exaggeration of intelligence before the invasion of Iraq and the flouting of FISA both required, and got, a degree of resolution in the White House that has few precedents in American history. The President has gotten away with it so far because he leaves no middle ground -- cut him some slack, or prepare to fight to the death. The fact that he enjoys a Republican majority in both houses of Congress gives him a margin of comfort, but I suspect that Democratic majorities would be just as reluctant, in the end, to call him on either count. Americans were ready enough to believe that one president might lie about a sexual affair; but they balk at concluding that his successor would pressure others to lie, and even would utter a few whoppers himself, so he could take the country to war.
Risen helps to explain how it was done, but lets it go at that. In his Fox News interview Vice President Cheney did not give an inch on the necessity of the NSA spying or of the war itself. "When we look back on this, ten years hence," he insisted, "we will [see that we] have fundamentally changed the course of history in that part of the world." A decade down the road we'll know if Cheney is right or wrong, and if the change is the one we wanted. The question now is whether the President could do it all again -- take the country to war, and scrap restraints on spying, just as he pleases. The answer is yes, unless Congress and the courts can say no.
Thomas Powers is a frequent contributor to the New York Review of Books and is the author of Intelligence Wars: American Secret History from Hitler to al-Qaeda; The Man Who Kept the Secrets; and Heisenberg's War.
This article appears in the February 23 issue of the New York Review of Books. It also appears, with an introduction by Tom Engelhardt, at Tomdispatch.com.
Copyright 2005 Thomas Powers