Big Brother's Big Failure

Reviewed by Bob Kerrey
Sunday, October 12, 2008


The Ultra-Secret NSA From 9/11 to the Eavesdropping on America

By James Bamford

Doubleday. 395 pp. $27.95

Before Sept. 11, 2001, the National Security Agency bent over backwards to assure Americans that it respected their privacy. The supersecret intelligence agency's then-director, Gen. Michael Hayden, told Congress in April 2000 that if, at that very moment, Osama bin Laden himself were walking across the Peace Bridge from Niagara Falls, Canada, as soon as he reached the New York side "my agency must respect his rights against unreasonable search and seizure."

In The Shadow Factory, James Bamford's important and disturbing new book about the NSA, we learn that as the general spoke, two of bin Laden's men already had arrived on American soil and were taking flying lessons. We also learn that, contrary to the implication of Hayden's testimony, the NSA was intercepting their communications.

A few months earlier the huge agency, based at Fort Meade, Md., 27 miles outside of Washington, had begun surveillance of a bin Laden operations center in Sana'a, Yemen. This was not just another intercept: Bin Laden had declared war on the United States, his organization had bombed our embassies in Kenya and Tanzania, and the NSA had good reason to suspect that he was plotting more attacks. As the 9/11 Commission later established, U.S. intelligence officials knew that al-Qaeda had held a planning meeting in Malaysia, found out the names of two recruits who had been present -- Khalid al-Mihdhar and Nawaf al-Hazmi -- and suspected that one and maybe both of them had flown to Los Angeles. Bamford reveals that the NSA had been eavesdropping for months on their calls to Yemen, yet the agency "never made the effort" to trace where the calls originated.

"At any time, had the FBI been notified, they could have found Hazmi in a matter of seconds. All it would have taken was to call nationwide directory assistance -- they would have then discovered both his phone number and address, which were listed in the San Diego phone directory," Bamford writes. "Similarly, if the NSA had traced any of the incoming calls to the [Yemen] ops center, they would have located two of the callers on California soil."

The 1990s brought a quadruple storm of changes that set the stage for the attack by al-Mihdhar, al-Hazmi and 17 other young men on the World Trade Center and the Pentagon: the end of the Cold War, radically new ways for human beings to communicate, a geometric rise in the amount of electronic data available, and the increasing use of suicide as a technique in warfare. Bamford's book is the sobering story of how America's Cold War national security apparatus has struggled to respond to these changes.

By detailing the failures of the NSA and CIA, Bamford goes where the 9/11 Commission did not fully go. He convincingly makes the case that our intelligence problems had little to do with the limitations imposed on the NSA or other agencies; the NSA had all the legal authority it needed to monitor al-Qaeda's communications and was actively doing so before the 9/11 attacks. (In the hypothetical case of Osama bin Laden crossing into New York, he notes, the relevant law allowed for emergency eavesdropping for up to two days, in which time the NSA could easily have obtained a warrant from a special court to continue the surveillance.) Yet deep-seated divisions and rivalries among U.S. intelligence agencies helped the hijackers go undetected.

Bamford explains that Hayden and other top NSA officials wanted to keep the agency's eavesdropping operations "as far away from U.S. territory as possible" for fear of being accused of illegally targeting American citizens, as happened in the 1970s. Rank-and-file NSA workers, meanwhile, resented CIA analysts for "treating them not as equals but as subordinates." And the CIA, in turn, had an almost pathological mistrust of the FBI.

In one riveting passage, Bamford describes how in January 2000 a CIA official refused to forward to the FBI an urgent report on al-Mihdhar's possible presence in the United States. When a low-ranking intelligence official insisted, "You've got to tell the bureau about this," a higher-up CIA officer "put her hand on her hip and said, 'Look, the next attack is going to happen in Southeast Asia -- It's not the FBI's jurisdiction. When we want the FBI to know about it, we'll let them know."

By exploring the current, post-9/11 operations of the NSA, Bamford also goes where congressional oversight committees and investigative journalists still struggle to go. Rather than finding out what went wrong in the run-up to 9/11 and disciplining those who made serious mistakes, the Bush administration declared its need for new authorities to wage a global war on terror. Congress agreed to most of the White House's demands, though we know from other sources that former Senate Majority Leader Tom Daschle resisted some of the most extreme requests. According to Bamford, the NSA's expanded powers and resources enabled it to collect communications both inside and outside the United States. He quotes a former NSA employee as a witness to the agency's spying on the conversations of Americans who have no connection to terrorism. After suing the NSA for documents, the author obtained considerable evidence that telecommunication companies (with the notable exception of Qwest) knowingly violated U.S. law by cooperating with the NSA to tap fiber optic lines.

In impressive detail, The Shadow Factory tells how private contractors, including some little-known entities with foreign owners, have done the sensitive work of storing and processing the voices and written data of Americans and non-Americans alike. And Bamford warns of worse to come: "There is now the capacity to make tyranny total in America. Only law ensures that we never fall into that abyss -- the abyss from which there is no return."

But here I begin my disagreements with the author. Tyranny is not a function of technology or of surveillance capabilities. Nor does law stand in its way. Tyranny's most reliable enemy is the preference of the American people -- and others on this planet -- for freedom, even if it means sacrificing a little security.

I also strongly disagree with Bamford's emphasis on U.S. foreign policy, and especially our support for Israel, as the motivator behind the Sept. 11 attacks. He cites one person who claims he never saw the 9/11 hijackers in prayer in the months before the attack. But there is too much evidence about the religious views of ringleader Mohammed Atta and the other plotters to discount the influence of radical Islamic fervor and to believe, instead, that they were motivated by anger over an Israeli bombing of Lebanese civilians in 1996; the author's apparent negativity toward Israel is a significant distraction from the content of his book. And though I believe there has been too great a tendency to demonize the 9/11 terrorists by calling them cowards and worse, Bamford is entirely too sympathetic to them for my taste. He refers to them as "soldiers," legitimizes their motives and makes them out to be 19 Davids slinging four deadly aircraft at the American Goliath.

Bamford also focuses too much on the U.S. Constitution. Terrorism is a global problem that requires a global solution. Thus, when President Bush took his lawyer's advice that he did not have to be concerned with international law when he was devising tactics to interrogate, incarcerate and bring suspected terrorists to justice, he put the nation's long-term security at risk.

Still, this revealing and provocative book is necessary reading, perhaps especially for members of Congress who annually reauthorize the work of the NSA. They should look again at the 9/11 Commission's recommendations to reform the congressional committees that watch over the executive branch agencies responsible for protecting us. Unless that oversight is strengthened, the fears expressed in The Shadow Factory will only grow. ยท

Bob Kerrey is president of the New School in New York. He served as a Democratic senator from Nebraska from 1989 to 2001 and was a member of the 9/11 Commission.

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