The Watchers (43 page)

Hayden was a gifted speaker because he knew how to hold a crowd. He could sense when he was losing them. And when that happened he turned on the common-man talk. The football analogies. The plain talking.

“So let me make this clear,” he said. “When you're talking to your daughter at state college, this program cannot intercept your conversations. And when she takes a semester abroad to complete her Arabic studies, this program will not intercept your communications.” No domestic-to-domestic calls. No calls solely among Americans. No spying because you're speaking Arabic.

Simple.

Hayden also played the cheerleader. “I recently went out to Fort Meade to talk to the workforce involved in this program,” he said. “They know what they have contributed, and they know the care with which it has been done. Even in today's heated environment, the only concern they expressed to me was continuing their work in the defense of the nation, and continuing to do so in a manner that honors the law and the Constitution.”

And finally, he was a storyteller. “As I was talking with them—we were in the office spaces there, typical office spaces anywhere in the world—I looked out over their heads—and this is the workforce that deals with the program the president discussed several weeks ago—I looked out over their heads to see a large sign fixed to one of those pillars that go up through our operations building that breaks up the office space. That sign is visible from almost anywhere in this large area. It's yellow with bold black letters on it. The title is readable from fifty feet: ‘What constitutes a U.S. person?' And that title was followed by a detailed explanation of the criteria. That has always been the fundamental tenet of privacy for NSA. And here it was in the center of a room guiding the actions of a workforce determined to prevent another attack on the United States. Security and liberty. The people at NSA know what their job is. I know what my job is too.”

Hayden looked confident. And pleased. But when it came time for questions, the audience was having none of it.

A man known for charm and aplomb became visibly agitated. Hayden batted away allegations that the Bush administration had reverted to the excesses that marred the intelligence community in the 1960s and 1970s. He seemed to think it was utterly illogical, even offensive, to draw comparisons between a war on terrorists and a time when the CIA and FBI monitored journalists, dissidents, and civil rights activists as political enemies. Hayden knew that ugly history. But that was another time.

“This is focused,” he reiterated. “It's targeted. It's very carefully done. You shouldn't worry.”

Maybe it had been focused once. But that was a long time ago. In the beginning, Hayden carefully had drawn out for the White House the three characteristics any good early-warning system must possess: It must be technologically feasible. It must produce useful intelligence. And it must be lawful. How solid were those pillars now?

What Hayden left out—the history, the technological challenges, the dead ends—told the whole story. His former agency had created something far greater than a neat, discrete capture of conversations. And it had taken them years to achieve a talent that could unashamedly be called “hot pursuit.”

But Hayden had come to make other points, and one that he wanted to impress firmly upon his audience was this: The NSA surveillance program—at least the one that the president had acknowledged—did not violate the Fourth Amendment of the Constitution. No way, nohow.

A reporter in the audience tested Hayden's assertion. “I'm no lawyer,” the reporter said. “But my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use—”

Hayden cut him off. “No, actually,” he gently instructed. “The Fourth Amendment actually protects all of us against unreasonable search and seizure.”

“But does it not say probable—”

“No,” Hayden insisted. His eyes and mouth started twitching, a nervous facial tic that tended to flare up in tense exchanges. “The amendment says ‘
unreasonable search and seizure
.'”

Hayden emphasized the four words as if to say he knew perfectly well what was reasonable and what wasn't.

The reporter still pressed on the language. “Does it not say probable—”

“No. The amendment says—”

“The court standard. The legal standard—”

“—‘Unreasonable search and seizure.' ”

“The legal standard is probable cause, General.” The reporter raised his voice and sliced through. Hayden stayed quiet. “And a FISA court, my understanding is, would not give you a warrant if you went before them and say ‘we reasonably believe.' You have to go to the FISA Court, or the attorney general has to go to the FISA Court and say, ‘We have probable cause.' And so what many people believe—and I'd like you to respond to this—is that what you've actually done is crafted a detour around the FISA Court by creating a new standard of ‘reasonably believe' in place of probable cause; because the FISA Court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?”

“Sure. I didn't craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.” (That was the order that Gonzales's predecessor, Ashcroft, had refused to sign almost two years earlier and in so doing had nearly brought down the Bush administration—a still unknown fact.)

Hayden continued, “I'm not a lawyer, and don't want to become one. What you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is ‘reasonable.' And we believe—I am convinced that we are lawful because what it is we're doing is reasonable.”

For Hayden it was damn well reasonable to presume, on September 11 and after, that America's enemies were at the gate. Without another word, he stepped off the podium and left the building.

Many Americans agreed with Hayden. The government had an obligation to protect the country, and if that meant monitoring phone calls and e-mails, that's what had to be done. A
USA Today
poll taken not long after the
Times
story appeared showed Americans evenly divided between those who opposed warrantless surveillance and those who thought that the president should have the powers he deemed necessary to strengthen national security.

The Justice Department argued in its white paper that Congress had given him that power in the “Authorization for use of Military Force” against terrorists, a joint resolution passed one week after the 9/11 attacks. Now officials claimed that the lawmakers had implicitly carved out an exception to FISA, even though the resolution never mentioned surveillance or intelligence specifically, and Congress had made clear, when it passed FISA in 1978, that the law was intended as a check on the president's authorities.

But in his Press Club speech Hayden said that “a serious and continuing threat to the homeland” had compelled the administration to give the NSA its new powers. Apparently, more than four years hence, the threat was still serious and continuing. Future events would tend to support that argument.

Two weeks after Hayden's speech Attorney General Alberto Gonzales appeared before the Senate Judiciary Committee, ostensibly to amplify Hayden's remarks. But Gonzales evaded senators' questions about the warrantless surveillance program and avoided many specifics about how it actually worked.

The president had the constitutional authority to order the secret surveillance, Gonzales insisted. It was necessary, and it still is.

“Well, then, let me ask you this,” prodded Arlen Specter. He'd been a busy overseer lately. “Under your interpretation of this, can you go in and do mail searches? Can you go into e-mails? Can you open mail? Can you do black-bag jobs?”

“Sir,” Gonzales replied, “I've tried to outline for you and the committee what the president has authorized, and that is all that he has authorized.”

Gonzales didn't exactly say no. Patrick Leahy, the committee's top Democrat, tag-teamed the attorney general. “Did it authorize the opening of first-class mail of U.S. citizens? That you can answer yes or no.”

“There is all kinds of wild speculation—”

“Did it authorize it?” Leahy persisted.

“—about what the president has authorized and what we're actually doing. And I'm not going to get into a discussion, Senator, about—”

“You're not answering my question! I'm not asking you what the president authorized. Does this law—you're the chief law enforcement officer of the country—does this law authorize the opening of first-class mail of U.S. citizens, yes or no, under your interpretation?”

Dianne Feinstein, a California Democrat, tried another tactic to pry information from the hedging attorney general.

“Has the president ever invoked this authority with respect to any activity other than NSA surveillance?” she asked.

“I'm not sure how to answer that question,” Gonzales replied. “I am not comfortable going down the road of saying yes or no as to what the president has or hasn't authorized.”

It might have been the most forthright statement Gonzales made all day. He carefully circumscribed his remarks—he was talking
only
about the surveillance activities that the president had authorized and that he confirmed existed after the
New York Times
published its story. This was becoming a well-worn refrain.

But Gonzales was still mostly opaque. He danced around the committee's questions. At times he almost seemed to smirk, as if he knew he was hiding a deeper secret. The lawmakers seemed to sense it and, of course, there were those in Congress who knew there was more to the story and couldn't say so publicly. But for the moment everyone knew that the Bush administration had been covering up and deceiving Congress for years. Anyone could see that there was more to “the program” than Gonzales was letting on.

 

 

 

 

There was a lot more to say about another program too. On February 2, 2006, during a public hearing of the Senate Intelligence Committee, a secret the administration had tried to stuff in a black box started spilling out.

The committee had called up an all-star cast of intelligence chiefs for an annual hearing on global threats, a kind of panoramic view of the national security waterfront. Mike Hayden joined his boss, director of national intelligence John Negroponte, and the new head of the CIA, former congressman Porter Goss. FBI director Robert Mueller was also there, along with the chiefs of the Defense Intelligence Agency and the State Department's intelligence office. Rounding out the ensemble was perhaps the oldest senior spy in the United States—Charlie Allen. The onetime contact of Ollie North and John Poindexter, who'd helped set up those early links among counterterrorism agencies and the White House in the wake of the Lebanon bombings, was now the chief intelligence officer for the Homeland Security Department.

Negroponte gave opening remarks about global threats. But with cameras rolling and reporters jotting notes, the discussion quickly turned to the NSA's warrantless surveillance program.

The senators peppered the witnesses with questions about the program's legal underpinnings, which they were still struggling to understand. But they also wanted to know if the surveillance produced results. John Rockefeller, who'd written that note to Dick Cheney comparing the NSA's program to Total Information Awareness, asked whether the agency had actually detected terrorist plots and saved lives, as Cheney had claimed publicly after the program was exposed.

Negroponte took a shot. “Certainly it's been an effective and important program in dealing with the terrorist threat,” he told Rockefeller. But rather than getting into specific examples, Negroponte turned to his number two. “If I may, I might ask—with your permission, Senator—ask General Hayden to elaborate somewhat in reply to the question that you have just directed to me.”

“The program has been successful,” Hayden insisted, adding, “We have learned information from this program that would not otherwise have been available.” On that point, Hayden wouldn't waver. “This information has helped detect and prevent terrorist attacks in the United States and abroad.”

But then Hayden went on the offensive. “The underlying basis of your question, though, Senator, is to put us in a position of proving a negative, proving that if we hadn't done this, if we hadn't had this knowledge, if these steps hadn't been taken, if these actions had not taken place, that something else would not have happened. That's very difficult to prove in a strict linear sense.”