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A FT E RWORD
To Live in Perilous Times NSA in the Obama Administration
The near collapse of the U.S. economy in September–October 2008, followed by the November 4, 2008, election of Barack Obama as the forty-fourth president of the United States, presented a new set of serious problems for NSA’s director, Lieutenant General Keith Alexander. The steep downturn of the economy meant that the agency’s annual budget submission to Congress had to be completely rewritten to take into account the new climate of fiscal austerity. But it was the president-elect, a former constitutional law professor who had been critical of the Bush administration’s domestic eavesdropping programs on the campaign trail, who potentially posed a more serious problem for the agency. In December 2008, NSA sent classified briefing books to the presidentelect and senior members of his national security transition team that explained the agency’s mission and capabilities. The documents emphasized that NSA was a completely different organization from the one that existed eight years earlier when George W. Bush had been elected. The empire that NSA commanded had doubled from thirty-two thousand military and civilian personnel in 2001 to more than sixty thousand, and its annual budget has gone from four billion dollars to about ten billion, accounting for roughly 20 percent of all U.S. government spending on foreign intelligence. Billions of dollars had been spent acquiring new hardware and software meant to improve NSA’s ability to collect, process, analyze, and report the staggering volume of material intercepted every day. And although there had been costly missteps along the way, this effort was beginning to pay dividends. NSA’s intelligence production had rebounded dramatically, and the agency was once 310
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again producing much of the best information within the U.S. intelligence community.1 The NSA briefing papers emphasized the vital importance of the signals intelligence (SIGINT) produced by the agency since General Alexander had become director in August 2005. NSA’s coverage of insurgent e-mails, text messages, and cell phone traffic had been crucial in helping General David Petraeus locate Iraqi insurgent cells operating in and around Baghdad in the spring of 2007, which were then hit by a systematic cyberattack by NSA beginning in May 2007.2 Then tactical intercept teams belonging to a secretive NSA field unit called the Joint Expeditionary SIGINT Terminal Response Unit (JESTR) helped U.S. military combat units destroy dozens of insurgent cells during the summer and fall of 2007. In Afghanistan, NSA and the U.S. military SIGINT collection efforts against the Taliban were steadily improving. NSA was dedicating more SIGINT collection and analytic resources to monitoring Taliban commanders talking on their cellular and satellite telephones inside Afghanistan and northern Pakistan, and the U.S. military had fielded new airborne and ground-based collection systems that dramatically improved SIGINT coverage of insurgent walkie-talkie communications traffic on Afghan battlefields. The briefing papers emphasized that these examples were only part of NSA’s contribution to the overall national intelligence effort. Several constellations of SIGINT satellites parked in orbit above the earth were providing excellent coverage of a host of key targets, including Iran. More than six hundred intercept operators working for NSA’s super-secret Tailored Access Operations office were secretly tapping into thousands of foreign computer systems and accessing password-protected hard drives and e-mail accounts of targets around the world. This highly classified program, known as Stumpcursor, had proved to be critically important during the 2007 surge in Iraq, where it was credited with single-handedly identifying and locating over one hundred Iraqi and al Qaeda insurgent cells in and around Baghdad. Dozens of listening posts hidden inside American embassies and consulates—operated by the joint NSA-CIA SIGINT organization known as the Special Collection Service—were producing excellent intelligence information in areas in Asia, Africa, and the Middle East. Information produced by Green Beret SIGINT teams had been instrumental in helping the Philippine military capture or kill several highranking officials of the Muslim extremist group Abu Sayyaf in 2006 and 2007. U.S. Navy SIGINT operators riding on attack submarines were collecting vital intelligence on foreign military forces and international narcotics traffickers as part of a program called Aquador. And the agency was well along
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in its planning to create a new organization— called United States Cyber Command—that would both attack enemy communications in cyberspace and defend the U.S. telecommunications infrastructure. But NSA officials still needed to address the agency’s controversial domestic eavesdropping programs, which had finally been placed under the control of the Foreign Intelligence Surveillance Court (FISC) in 2007. On July 10, 2008, President Bush had signed into law the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, which granted retroactive immunity from lawsuits to the telecommunications companies who had collaborated with NSA. Obama, then a senator from Illinois, had reluctantly voted for the bill after failing to get the immunity provisions for the telecommunications companies stripped from the legislation. President Bush’s director of national intelligence, Admiral Mike McConnell, held a face-to-face meeting with Obama in Chicago in December to try to assuage the president-elect’s lingering concerns about the domestic eavesdropping programs. But according to a member of Obama’s transition team, when the meeting was over, the presidentelect remained troubled by what the agency had done: He was especially concerned with the legality of NSA’s domestic spying activities. After President Obama was inaugurated on January 20, 2009, he and his national security advisers made the decision to focus on the country’s more pressing economic problems rather than waste precious political capital by dredging up the misdeeds of the past administration. But on July 10, 2009, the Office of the Director of National Intelligence (DNI) released an unclassified summary of a top-secret report that raised some very serious questions about the legality, effectiveness, and overall value of the NSA domestic eavesdropping programs.3 First, the report confirmed that the Justice Department legal briefs written by John Yoo in 2001–2002, which served as the legal predicate for the NSA eavesdropping programs, were filled with so many “serious factual and legal flaws” that they had to be rewritten in their entirety in 2004 in order to bring them into conformance with the law, which raises the obvious question of whether the NSA domestic eavesdropping programs were legal to begin with. Second, the report suggested that the shoddiness of these legal opinions may have jeopardized all of the arrests and/or convictions of terrorist suspects that were based in part on intelligence derived from the NSA eavesdropping. And third, the DNI report cast grave doubts about the claims previously made by former vice president Dick Cheney and NSA director General Michael Hayden about the importance of the NSA domestic eavesdropping to the overall U.S. counterterrorism program. The report revealed that analysts at the National
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Counterterrorism Center (NCTC) in McLean, Virginia, could only come up with a few cases where intelligence derived from the NSA eavesdropping programs “may have contributed to a counterterrorism success,” and FBI officials stated that the NSA intelligence data “generally played a limited role in the FBI’s overall counterterrorism efforts.” These were hardly stunning endorsements of the value of the NSA eavesdropping programs given the vast sums of money spent on them to date. But NSA’s eavesdropping programs continue, as evidenced by the revelations that in December 2008 and January 2009, NSA intercepted a dozen or so e-mail messages between a U.S. Army psychiatrist named Major Nidal Malik Hasan and a radical Muslim cleric in Yemen. The messages were examined by FBI agents with the Joint Terrorism Task Force in Washington and deemed not to be sufficiently alarming to warrant further action. On November 5, 2009, Major Hasan killed thirteen of his fellow soldiers at Fort Hood in Texas, and wounded dozens more. Less than two months later, on Christmas Day 2009, a twenty-three-year old Nigerian named Umar Farouk Abdulmutallab failed to detonate an explosive device sewn into his underwear as his Northwestern Airlines flight from Amsterdam was on final approach to Detroit Metro Airport. In mid-October 2009, NSA intercepted some fragmentary al Qaeda telephone traffic coming from inside Yemen indicating that an unidentified Nigerian was being trained for a planned terrorist attack. On November 18, 2009, Abdulmutallab’s father told officials at the U.S. embassy in Abuja, Nigeria, that his son had just sent him text messages from Yemen that showed that the boy had become a jihadi militant. But the analysts at the NCTC somehow failed to connect the reports from the U.S. embassy in Nigeria with the NSA intercepts. So Abdulmutallab’s name was not put on the “do not fly” watch list, and he was allowed to board his flight that fateful Christmas morning. As this book goes to print, these unsettling episodes are still under investigation, but both raise a host of troubling questions about who is still being monitored and why, and more importantly, whether the U.S. government’s massive security apparatus is capable of identifying impending threats, no matter how much intelligence NSA collects.
January 2010 Washington, D.C.