Note: This article is based on a review of State of War: The Secret
History of the CIA and the Bush Administration by James Risen.
The challenges posed to US democracy by secrecy and by unchecked presidential
power are the two great themes running through the history of the Iraq war. How
long the war will last, who will "win", and what it will do to the political
landscape of the Middle East will not be obvious for years to come, but the
answers to those questions cannot alter the character of what happened at the
outset. Put plainly, President George W Bush
decided to attack Iraq, he brushed caution and objection aside, and Congress,
the press and the people, with very few exceptions, stepped back out of the way
and let him do it.
Explaining this fact is not going to be easy. Commentators often now refer to
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 US 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
US presidents cannot enact laws on their own, or ignore laws that have been
enacted by Congress.
The Foreign Intelligence Surveillance Act of 1978 (FISA) is such a law; it was
enacted to end years of routine wiretapping of US 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 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 New
York Times reporters James Risen and Eric Lichtblau learned more than 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 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 Central Intelligence Agency
(CIA) analysts quit fighting over exaggerated reports of Iraqi weapons of mass
destruction as word spread in the corridors of its headquarters in Langley,
Virginia, 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, 2001; and that "a handful of the most important al-Qaeda
detainees" have been sent for interrogation to a secret prison code-named
"Bright Light". One CIA specialist in counter-terror 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 mobile telephones 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 500 people in the United States". But his number
of 500 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 Federal Bureau of Investigation
(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 US telecommunications companies, which daily
handle 2 billion phone calls and perhaps 10 times as many e-mail messages. What
Risen discovered, in short, was a program best described as "big".
A wide net
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, US 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. 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 Bush 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 counter-terror 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, 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 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," 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.
Bush's carefully worded statement casts a troubling new light on his insistence
that Americans 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 2 of the US 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 Cheney's office
on July 17, 2003, four months after the US invasion of Iraq and a year after
the NSA program began. Present were Congresswoman Jane Harman and congressman
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, 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 [sprang] 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 admiral and
national security adviser under president Ronald 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 (IAO).
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 persuade 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 that 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, that 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 US ambassador to the United Nations,
when he said that on 10 occasions he had formally asked the NSA to identify the
"US 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 19 persons who aroused Bolton's curiosity in those 10
communications was one reason 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 more than 400 requests
for the identities of US 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 US 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 25 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 Bush'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 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 Cheney in December, 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.
Tell us what we want to hear
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 (WMD) - 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 2" 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, then-national security adviser 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 2", saying he no longer saw the point. But in
November Senator Harry Reid, a Democrat on the Senate Intelligence Committee,
revived Phase 2 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
prewar 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 WMD. A chief target of the new program was Iraq's
effort to develop nuclear weapons, the subject of intense scrutiny after a
son-in-law of Saddam Hussein defected in mid-1995 to Amman, where he described
WMD programs to UN officials. Sawsan Alhaddad, a doctor working and living in
Cleveland, Ohio, was one of about 30 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
Saddam'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 [an] 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 (NIE) used to persuade Congress to
vote for war. The pattern is clear; evidence of Iraqi WMD, 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 Bush 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 then-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 under secretary 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 WMD and then urged Tenet to
listen to its findings. Cheney crossed the Potomac River 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 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. Bush 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, Cheney did not give an inch on the necessity of the NSA spying or of
the war itself. "When we look back on this, 10 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 whether Cheney is right
or wrong, and whether the change is the one Americans 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.
The Secret History of the CIA and the Bush Administration by James
Risen. Free Press, 2006. ISBN:0743270665. Price US$26. Hardcover, 256 pages.
