Permanent Record(53)

And although you should hate me for it, I have to say that at the time I tamped down my unease. Indeed, I did my best to ignore it. The distinctions were still fairly clear to me. China’s Great Firewall was domestically censorious and repressive, intended to keep its citizens in and America out in the most chilling and demonstrative way, while the American systems were invisible and purely defensive. As I then understood US surveillance, anyone in the world could come in through America’s Internet infrastructure and access whatever content they pleased, unblocked and unfiltered—or at least only blocked and filtered by their home countries and American businesses, which are, presumptively, not under US government control. It was only those who’d been expressly targeted for visiting, for example, jihadist bombing sites or malware marketplaces who would find themselves tracked and scrutinized.

Understood this way, the US surveillance model was perfectly okay with me. It was more than okay, actually—I fully supported defensive and targeted surveillance, a “firewall” that didn’t keep anybody out, but just burned the guilty.

But in the sleepless days after that sleepless night, some dim suspicion still stirred in my mind. Long after I gave my China briefing, I couldn’t help but keep digging around.



* * *



AT THE START of my employment with the NSA, in 2009, I was only slightly more knowledgeable about its practices than the rest of the world. From journalists’ reports, I was aware of the agency’s myriad surveillance initiatives authorized by President George W. Bush in the immediate aftermath of 9/11. In particular, I knew about its most publicly contested initiative, the warrantless wiretapping component of the President’s Surveillance Program (PSP), which had been disclosed by the New York Times in 2005 thanks to the courage of a few NSA and Department of Justice whistleblowers.

Officially speaking, the PSP was an “executive order,” essentially a set of instructions set down by the American president that the government has to consider the equal of public law—even if they’re just scribbled secretly on a napkin. The PSP empowered the NSA to collect telephone and Internet communications between the United States and abroad. Notably, the PSP allowed the NSA to do this without having to obtain a special warrant from a Foreign Intelligence Surveillance Court, a secret federal court established in 1978 to oversee IC requests for surveillance warrants after the agencies were caught domestically spying on the anti–Vietnam War and civil rights movements.

Following the outcry that attended the Times revelations, and American Civil Liberties Union challenges to the constitutionality of the PSP in non-secret, regular courts, the Bush administration claimed to have let the program expire in 2007. But the expiration turned out to be a farce. Congress spent the last two years of the Bush administration passing legislation that retroactively legalized the PSP. It also retroactively immunized from prosecution the telecoms and Internet service providers that had participated in it. This legislation—the Protect America Act of 2007 and the FISA Amendments Act of 2008—employed intentionally mislead ing language to reassure US citizens that their communications were not being explicitly targeted, even as it effectively extended the PSP’s remit. In addition to collecting inbound communications coming from foreign countries, the NSA now also had policy approval for the warrantless collection of outbound telephone and Internet communications originating within American borders.

That, at least, was the picture I got after reading the government’s own summary of the situation, which was issued to the public in an unclassified version in July 2009, the very same summer that I spent delving into Chinese cyber-capabilities. This summary, which bore the nondescript title Unclassified Report on the President’s Surveillance Program, was compiled by the Offices of the Inspector Generals of five agencies (Department of Defense, Department of Justice, CIA, NSA, and the Office of the Director of National Intelligence) and was offered to the public in lieu of a full congressional investigation of Bush-era NSA overreach. The fact that President Obama, once in office, refused to call for a full congressional investigation was the first sign, to me at least, that the new president—for whom Lindsay had enthusiastically campaigned—intended to move forward without a proper reckoning with the past. As his administration rebranded and recertified PSP-related programs, Lindsay’s hope in him, as well as my own, would prove more and more misplaced.

While the unclassified report was mostly just old news, I found it informative in a few respects. I remember being immediately struck by its curious, they-do-protest-too-much tone, along with more than a few twists of logic and language that didn’t compute. As the report laid out its legal arguments in support of various agency programs—rarely named, and almost never described—I couldn’t help but notice the fact that hardly any of the executive branch officials who had actually authorized these programs had agreed to be interviewed by the inspector generals. From Vice President Dick Cheney and his counsel David Addington to Attorney General John Ashcroft and DOJ lawyer John Yoo, nearly every major player had refused to cooperate with the very offices responsible for holding the IC accountable, and the IGs couldn’t compel them to cooperate, because this wasn’t a formal investigation involving testimony. It was hard for me to interpret their absence from the record as anything other than an admission of malfeasance.

Another aspect of the report that threw me was its repeated, obscure references to “Other Intelligence Activities” (the capitalization is the report’s) for which no “viable legal rationale” or no “legal basis” could be found beyond President Bush’s claim of executive powers during wartime—a wartime that had no end in sight. Of course, these references gave no description whatsoever of what these Activities might actually be, but the process of deduction pointed to warrantless domestic surveillance, as it was pretty much the only intelligence activity not provided for under the various legal frameworks that appeared subsequent to the PSP.