The father of FISA was the late Edward M. Kennedy, and he introduced his legislation following years of Senate investigations into Richard Nixon’s use of domestic intelligence agencies to spy on political activists. Surprisingly-or maybe not-Democrats and Republicans supported Ted’s bill, including folks like Republican Strom Thurmond, a man not known for leaning far to the left. It appeared that neither conservative nor liberal liked the idea of presidents ignoring the privacy protections guaranteed Americans by the Fourth Amendment.
FISA strictly prohibits randomly monitoring the communications of U.S. citizens. That is, it does not allow an intelligence agency to listen to as many phone calls as it possibly can just hoping to hear two guys talking who might be terrorists. FISA basically says that if you want to eavesdrop on the communications of Americans and foreign residents on American soil, you need a warrant, and to get said warrant, the government has to be able to show that these folks are suspected of being engaged in terrorism or espionage. Now getting these warrants isn’t particularly difficult, because the warrants are approved by the Foreign Intelligence Surveillance Court, a group of federal judges who act in total secrecy and whose decisions are not really monitored by anyone. Furthermore, suspected isn’t a particularly challenging legal standard to meet. Nonetheless, obtaining these warrants takes time-and in a war, minutes count-but more importantly, there was an obvious catch-22. You might suspect that an American named Muhammad who attends a mosque led by a radical, fire-breathing, anti-American imam is plotting nefarious things, but you couldn’t really be sure until you listened to a few of Muhammad’s calls. In other words, just being named Muhammad wasn’t sufficient justification for a warrant.
Then, to Dillon’s immense surprise and delight, he found that there was, in fact, one politician who had the courage to do what needed to be done: the president of these United States. Following 9/11, the president concluded that FISA was a major roadblock to his forces engaged in the War on Terror, and he issued an Executive Order-which no one ever saw-which said that in the future the NSA didn’t need a warrant to eavesdrop on folks suspected of terrorism. The president’s intention was never to spy on Americans communicating with other Americans, however. His intention was that if an American or a foreigner on American soil was a suspected terrorist and was calling overseas, no warrant was required anymore. And to calm the nerves of those people at the NSA who were worried about going to jail for breaking the FISA laws, he sent them to his top lawyer, the Attorney General. The AG told the spies not to worry, that the president’s directive trumped FISA-and the NSA was off to the races, with Dillon leading the pack.
Dillon did have one other small problem, though. It was relatively easy for the NSA to capture wireless signals-signals that swam through the atmosphere like blind fish, bouncing from satellite to satellite. The Net just vacuumed these babies up. The problem was that in the twenty-first century the majority of all communications-voice and e-mail-were being routed through fiber-optic cables, and to tap into a fiber-optic cable wasn’t a matter of simply attaching a couple of alligator clips to a wire. To tap into fiber-optic cables, it was necessary to go into communications company switching stations and connect complex equipment and sophisticated computers to the cables. Fortunately, thanks in large part to the Justice Department’s interpretation of the law, companies like Verizon and AT amp;T agreed to cooperate. And once this equipment was installed it became possible to monitor everyone’s communications-and Dillon began doing so. Again, this was not what the president had in mind, but once he opened the door, Dillon jumped right through it.
It was impossible to listen to everything, of course. Every twelve-year-old in America-and maybe in the world-has a cell phone, and billions of calls, e-mails, and text messages pass through fiber-optic cables every day. So the NSA’s marvelous computers listened for key words and phrases, or calls going to certain locations, or calls spoken in certain languages. To use a simple example-the actual process was much more complicated-if a man in Washington speaking in Arabic said the words white house and ka-boom in the same sentence… well, the spies at Fort Meade perked right up.
But Dillon knew it wouldn’t last. The NSA’s warrantless eavesdropping program was a secret being kept by politicians, several thousand spies, telecommunications company employees, and big-mouthed lawyers at the Department of Justice. It was, in fact, amazing the secret was kept for as long as it was-for nearly four years-but in 2005 one of the big-mouthed lawyers squealed. He squealed to a reporter named James Risen who dwelled in that bastion of anarchy known as The New York Times, after which The Times told everybody what the NSA was doing and things came to a screeching halt-for everyone but Dillon, that is.
Since Dillon had expected this development, he had set up Claire’s division well in advance of Mr. Risen’s party-spoiling revelation. The division consisted of a few hundred handpicked folk out of the thirty thousand employed by the NSA, and they were moved into an isolated annex on the sprawling grounds of Fort Meade. And when the rest of the agency went back to playing Mother-May-I with the FISA Court, Claire’s technicians just continued to monitor communications as they pleased-and warrants be dammed.
The majority of the work that Claire’s techs did was accomplished inside large computers, and it’s rather difficult to tell what a person is doing when all that’s evident to the naked eye is a man sitting in front of a machine. It becomes even harder to tell when that same person controls the reports generated by the machine. And the functions accomplished by Claire’s eavesdroppers were not in any way unique to the agency, and almost everything they did was electronically piggybacked on top of legitimate FISA-sanctioned operations. That is, when the NSA obtained a FISA warrant to tap into certain cables to monitor certain folk, the work would be assigned to Claire’s division and they significantly expanded the scope of the warrant.
It was also amazingly easy for Dillon to hide the activities of Claire’s secret division from his superiors. It was, in fact, depressingly easy. The current Director of the NSA was a three-star navy admiral; the deputy director, Dillon’s immediate superior, was a civilian whose primary function was defending the agency’s massive budget. The reason it was so easy for Dillon to keep these folks in the dark was not, however, because they were stupid. Earlier in his career, Admiral Fenton Wilcox had commanded a nuclear submarine, one of the most complex machines ever designed by man. No, the problem with the admiral and his deputy was not their intelligence. The problem was a prevailing American management practice: in America, these days, managers were not expected to technically understand the things they managed. Not long ago the CEO of Boeing became the CEO of Ford-it apparently didn’t matter that one company made airplanes and the other automobiles. Management was management, or so some thought, and the principles that applied to running one company efficiently should certainly apply to any other-and the government subscribed to this faulty thinking. Dillon’s bosses, bright as they were, did not really understand the complex technologies associated with NSA eavesdropping. Very few people did, Dillon being one of the few.
The end result of all this was that if Admiral Wilcox were ever to ask Dillon what Claire’s small division was doing, Dillon could spout pure gibberish and the admiral wouldn’t know any better. But the fact was, the admiral never asked, nor did the general before him. These men assumed that the people who worked for them would never do something illegal, that a bunch of civil servants-the word servant almost always said with a sneer-would never have the audacity to go beyond the agency’s authorized and lawful mission. This was the single biggest problem with managers who didn’t understand the technology: they had to trust the nerds who worked for them because they couldn’t tell when they were lying.