Not long after U.S. Air Force Major General* Michael Hayden learned he was going to be named the director of the National Security Agency in 1998, he and his wife went out on a date. The Haydens lived in Seoul, South Korea, where he was stationed with the United Nations Command, and they decided to take in a movie at the local U.S. army base. The feature presentation that evening happened to be Enemy of the State, a then-new Hollywood thriller that depicted the highly secret, enigmatic NSA as a ruthless organization that used its array of electronic surveillance devices to peer into every corner of the private lives of Americans and murdered those who stood in its way, including a Congressman.
As Hayden told journalist James Bamford during an interview in 2000, “Other than the affront to truthfulness, it was an entertaining movie.” Hayden went on to explain that he appreciated Enemy of the State for its deeper message: “the evils of secrecy and power.”
Hayden’s words came back to Bamford in 2005 after the New York Times broke the story that the NSA under Hayden had been conducting widespread eavesdropping on the conversations of Americans communicating overseas, a practice expressly outlawed by the 1978 Foreign Intelligence Surveillance Act but controversially put in motion by the Bush Administration in the wake of the terrorist attacks of September 11.
Bamford was, and remains, very likely the person who knows the most about the NSA outside the NSA itself. He is the author of 1982’s best-selling The Puzzle Palace, the first extensive investigation into the electronic-spying agency headquartered at Fort Meade, Maryland; when he interviewed Hayden he was working on a best-selling sequel, 2001’s Body of Secrets. As Bamford notes during a recent telephone conversation, he had no plans to write a third book about the NSA. But when the Times’ “warrantless eavesdropping” story broke, he got back to work.
Bamford’s new book, The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America (Doubleday), presents an account of the drastic and ominous shift in the agency’s mission and tactics over the past seven years. After detailing the NSA’s failure to follow up on the clues it had about the September 11 terrorists entering the United States, Bamford recounts Hayden’s quick capitulation to the Bush Administration’s request for an illegal surveillance dragnet and the fallout from the Times story, including persistent attempts to continue the program and indemnify the participants that were only resolved with the passage of the FISA Amendments Act this past July. (Hayden left the NSA in 2005; he is currently the director of the Central Intelligence Agency.)
The revelations don’t stop there. The Shadow Factory discusses the National Business Park, a complex near Fort Meade that’s crammed with private companies that now earn millions to do much of the NSA’s highly classified work. Among the private companies winning contracts with the agency are Narus and Verint, firms with ties to Israeli intelligence that sell surveillance equipment to the NSA, and also to countries such as Vietnam and China, which use it to crack down on dissidents. Bamford wraps up with the agency’s growing interest in gathering and mining communications data, which includes building a massive new 470,000-square-foot “data warehouse” in San Antonio that, as Bamford observes, “may eventually be able to hold all the information in the world.”
Low-key but voluble, 62-year-old Bamford spoke with the Current’s Times-Shamrock sister publication, Baltimore City Paper, from his home in Washington, D.C.
How did you first get interested in the NSA and start writing about it?
I was in the Navy for three years, and then `thanks to` the GI Bill I went to college and law school. After graduating from law school, I wasn’t that interested in practicing law. I wanted to get into writing, and one of the areas I was kind of interested in was intelligence. There had been lots of books written about the CIA, and there wasn’t really much I could contribute, but no one had ever done a book on NSA, which I’d heard about but didn’t really know too much about. I thought that might be something I could do that no one else had done.
When you started writing your book in 1979, wasn’t the NSA’s existence still more or less officially unacknowledged by the government?
It was officially acknowledged in the late ’50s, early ’60s as the result of a couple of spy scandals, but for a number of years they `used` a cover story in terms of what they did — this sort of gobbledygook double-talk about “keeping America’s communications secure.” They didn’t really talk about their eavesdropping or code-breaking role. That started coming out later on in the ‘60s, but by the time I began writing about them in the late ’70s, they were still pretty much in the closet. There had been a couple of articles about them, but not really very much. It was sort of like exploring a lost continent, since very few people had gone some of the places I went in terms of finding documents or finding people or finding information about the agency.
Did you get any pushback from the agency when you started writing about it? After all, it’s supposed to be top secret.
I had a difficult time. My advance was fairly small, I was living in Massachusetts, I didn’t really know anyone in intelligence, and I hadn’t written anything before. And I was going up against NSA.
One of the things I was good at in law school was research, so I thought maybe I’d try using the Freedom of Information Act. The problem with that was, NSA is really the only agency excluded from the act. If you sent them an FOI request, they would just send you a letter back saying under `Section 6 of the National Security Act` we don’t have to give you anything, even if it’s unclassified.
But I found this place, the George C. Marshall Research Library in Lexington, Virginia, and William F. Friedman, one of the founders of the NSA, had left all his papers there. When I got down there, I found the NSA had gotten there just before me and gone through all of his papers, and taken a lot his papers out and put them in a vault down there and ordered the archivist to keep them under lock and key. And I convinced the archivist that that wasn’t what Friedman wanted, and he took the documents out and let me take a look at them.
Among the documents was an NSA newsletter. These are things the NSA puts out once a month. They’re fairly chatty, but if you read them closely enough you can pick up some pretty good information about the agency. ... When I was reading one of the newsletters, there was a paragraph that said, “The contents of this newsletter must be kept within the small circle of NSA employees and their families.” And I thought about it for a little bit, and I thought, hmm, they just waived their protections on that newsletter — if that’s on every single newsletter then I’ve got a pretty good case against them. If you’re going to open it up to family members, with no clearance, who don’t work for the agency, then I have every right to it. That was a long battle, but I won it, and they gave me over 5,000 pages worth of NSA newsletters going back to the very beginning. That was the first time anyone ever got a lot of information out of NSA.
We made this agreement where I could come down and spend a week at NSA, and they gave me a little room where I could go over the newsletters and pick the ones I wanted. So I got all that information and spent about a week at NSA. And finally they really wanted to delete some names and faces, and I said you can do that, but there ought to be some kind of quid pro quo. The quid pro quo was that I get to interview senior officials and take a tour of the agency. And that was what really opened it up.
It wasn’t the NSA you see today — it was much different. They just thought no one would ever try to write about NSA, and they didn’t think I would have any luck, because who am I? I’m just some guy up in Massachusetts with no track record.
What was the agency’s reaction once the books came out?
They threatened me with prosecution twice when the first book came out. And then when the sequel came out in 2001, they went to the opposite extreme and had a book-signing there. Body of Secrets was fairly favorable, because they had changed their ways after ’78 — they weren’t doing domestic eavesdropping anymore. It seemed like they’d learned their lesson and were obeying the law.
That phase of my relationship with NSA ended on December 16, 2005. That’s when the New York Times broke the story about their domestic eavesdropping. I had been telling people `the NSA is` obeying the law now and they would never go back on that, and here they were the whole time, doing that ever since 2001. And that’s when the ACLU asked me to join their class-action lawsuit as a plaintiff against NSA. So I went from getting dinner invitations to the director’s house and Christmas-party invitations to being on the other side of a lawsuit. It’s a love-hate relationship, and it’s been going on a long time.
When I told people I was going to be interviewing you about the NSA, some of them made jokes about the agency listening in on the phone call. I think a lot of Americans, correctly or not, halfway believe that the agency actually does such things. Do you?
I never claimed that NSA eavesdrops on domestic-to-domestic communications, so I wouldn’t worry too much about this `call`. As I point out in the book — and this comes from a number of people on the front lines with the earphones and all that — after 9/11 and the warrantless eavesdropping program got started, they have been eavesdropping on Americans calling Americans `overseas, or to or from overseas`.
One of the people I talked to worked four years before 9/11 in the same place, and she was saying `before 9/11` when they came across an American they would immediately turn off the computer and move on to the next call. It’s called “minimization” — you don’t keep a record of it, you don’t transcribe it, you don’t record it, unless you have a warrant from the Foreign Intelligence court. But after 9/11 she says they weren’t doing any minimization. They’d pick up Americans calling Americans and they’d actually listen to those conversations, they’d transcribe some of them, and they’d all be recorded and stored — for eternity for all I know.
So people’s paranoia about the NSA listening in on phone calls, at least inside the United States, is unfounded?
Unless there’s stuff I don’t know, which is quite possible, there’s never been domestic-to-domestic `telephone or e-mail surveillance`. Most of what they do is foreign country to foreign country or U.S to a foreign country or a foreign country to the U.S. But think of how many communications there are to or from Americans `internationally` in terms of email, telephone calls, faxes, and everything. The world has shrunk a great deal. And that was the problem `with the warrantless eavesdropping` — they were picking up a huge amount of American communications but no Al-Qaeda, and certainly no Americans talking to Al-Qaeda, which is what President Bush said this was all about. This was Americans talking to Americans. What they were intercepting is the Inmarsat satellite, and most of the people who had satellite phones in the Middle East were reporters, military people, aid workers, that kind of thing. `My source` thought they were wasting their time. She didn’t join the Army to listen to bedroom talk between soldiers and their wives.
Another aspect of the warrantless eavesdropping program had to do with communications between foreign nationals in other countries that nonetheless pass through the United States that the NSA wanted access to, right?
There’s so much information that flashes between ISPs in the United States like Google, Yahoo, and AOL, and there are so many large nodes for the transfer of internet communications that the U.S. plays a huge role in the thing.
Say you’re in Madrid and you send an email to Tehran and it’s 10 a.m. in Madrid. There’s a good chance that’s gonna go from Madrid to New York to Tehran instead of, say, Paris, because at 10 in the morning there’s a huge amount of traffic passing through those European hubs, and at the same time its about 5 in the morning on the East Coast `of the United States`, so it’s very quiet, and it’s also cheaper. The computer would automatically reroute that communication. This is a foreigner talking to a foreigner, and the only U.S. nexus is that for a millisecond this communication bounces in and out of an internet hub. This was a problem. (Editor’s note: The FISA law prevented the NSA from accessing such communications without a warrant but, at the urging of the Bush Administration and with the permission and cooperation of telecommunications companies, it tapped into fiber-optic cables anyway.)
It’s strange to think about the NSA as this agency engaged in all this highly secret, super-technical, and, in this case, illegal activity, but at the same time think of it as the place you’ve described as having office Christmas parties and softball games and all the other mundane stuff that goes along with working in a big government agency. What’s the culture of NSA like?
It’s hard for me to generalize, since I know a select group of people there, but the NSA is a very insular agency. People have secrecy drummed into them. I’ve talked to a lot of NSA people who say they feel very uncomfortable going to parties with a lot of non-NSA people, because the subject will come up of Iran or Iraq, and they have to either drift out of the conversation or say very little. A lot of time they get nervous when they contribute something because they may not be sure whether it’s something they read in Time magazine or something they read in a top-secret memo or something. Or if they read it in Time magazine and they say it, whether someone will report it because they think they’re giving up a secret. So at least the people I’ve talked to in the past tended to keep in their small employee-type circles.
Well, one of the first things people tend to ask someone they just met at a party is “What do you do?”
Yeah, and in the area around NSA, in the past it was “Department of Defense.” So if they say Department of Defense and you’re in Laurel, Maryland, you know they’re working for the NSA. If it was just neighbors, maybe people could say NSA, but if they didn’t know who was there, I think they would try not saying anything or saying something generic like “I work for the government” or “I work for the Department of Defense” and hope it wouldn’t go any further than that.
I’m struck by the fact that you sound genuinely surprised and upset, still, about the warrantless eavesdropping program.
Well, I was very surprised. I had defended the agency in a number of places.
But, as you write in The Shadow Factory, the agency had been caught spying on Americans before in the ’70s with Project Shamrock.
I agree, but I didn’t know the people back then. I knew the people this time. I trusted that Hayden was going to follow the law. I talked to a lot of people there, and that was the impression I got. The mid-’70s was the worst time in NSA’s history, the first time a director had to sit in front of an open hearing of Congress and get blasted and humiliated, and all these horror stories came out about eavesdropping on all the telegrams entering and leaving the country `as part of Project Shamrock`. The FISA court got set up as a new safeguard, the buffer between NSA and the public. Everyone I talked to from then on said those were the horror days, we don’t want to relive them, we’re going to keep as far from the edge as possible.
I didn’t think that was going to change after 9/11 — you still had the `FISA` court there, you still had laws, the Constitution. That’s why when I read the reports and talked to people who indicated that they had decided to bypass the court ... I mean, that’s illegal. There is no other word for it. The FISA act says if you want to eavesdrop on what they call a “U.S. person,” you get a warrant from the FISA court. You don’t bypass it. That’s a felony. You can get five years in prison.
I’ve written more than anyone else on the agency and, you know, it’s no big deal, I just go on with the next day like the day before, but when I find out that this agency that I’ve been saying would never do these things is doing them, yeah, it’s a shock and a disappointment, a disappointment in the people that you didn’t think were going to do that.
The people I did have respect for were `Deputy Attorney General` Jim Comey, even `Attorney General John` Ashcroft, and Bob Mueller, the head of the FBI. They, plus people under them, came within a day of resigning over this whole thing. And that’s standing up for moral principles, and I would have much preferred that General Hayden would have stood up to Cheney or whomever and said that’s illegal, I can’t do that, I can’t carry out that order so I’m going to have to resign. It’s scary to think that someone puts a little pressure on you and you say, OK, that’s fine, we’ll go ahead and bypass the law.
They could have gone to Congress. Congress would have given them anything they wanted in those days. But it’s the arrogance of power when you decide you’re not even going to do that. You’re just going to do it because you feel like doing it, because you’re the person who’s going to save the world. That’s how tyrannies get to be tyrannies, because people think they’re above the law.
One of the interesting, and disturbing things about the warrantless eavesdropping as you describe it in the book is that the NSA started getting this increased level of access and raking in more and more communications but seemed to get little usable information out of it all.
The problem is that NSA was never designed for what it’s doing. It was designed after World War II to prevent another surprise attack from another nation-state, particularly the Soviet Union. And from 1945 or ’46 until 1990 or ’91, that’s what its mission was. That’s what every piece of equipment, that’s what every person recruited to the agency, was supposed to do, practically — find out when and where and if the Russians were about to launch a nuclear attack. That’s what it spent 50 years being built for. And then all of a sudden the Soviet Union is not around anymore, and NSA’s got a new mission, and part of that is going after terrorists. And it’s just not a good fit. They missed the first World Trade Center bombing, they missed the attack on the U.S.S. Cole, they missed the attack on the U.S. embassies in Africa, they missed 9/11. There’s this string of failures because this agency was not really designed to do this. In the movies, they’d be catching terrorists all the time. But this isn’t the movies, this is reality.
The big difference here is that when they were focused on the Soviet Union, the Soviets communicated over dedicated lines. The army communicated over army channels, the navy communicated over navy channels, the diplomats communicated over foreign-office channels. These were all particular channels, particular frequencies, you knew where they were; the main problem was breaking encrypted communications. `The NSA` had listening posts ringing the Soviet Union, they had Russian linguists that were being pumped out from all these schools around the U.S.
Then the Cold War ends and everything changes. Now instead of a huge country that communicated all the time, you have individuals who hop from Kuala Lampur to Nairobi or whatever, from continent to continent, from day to day. They don’t communicate `electronically` all the time — they communicate by meetings. `The NSA was` tapping Bin Laden’s phone for three years and never picked up on any of these terrorist incidents. And the `electronic` communications you do have are not on dedicated channels, they’re mixed in with the world communication network. First you’ve got to find out how to extract that from it, then you’ve got to find people who can understand the language, and then you’ve got to figure out the word code. You can’t use a Cray supercomputer to figure out if somebody’s saying they’re going to have a wedding next week whether it’s really going to be a wedding or a bombing.
So that’s the challenge facing the people there. So even though I’m critical about them for missing these things, I also try in the book to give an explanation as to why this is. It’s certainly not because the people are incompetent. It’s because the world has changed.
I think the problem is more serious than people realize. I talked to the people at Fort Gordon `in Georgia`, which is the main listening post for the Middle East and North Africa. What was shocking to me was the people who were there were saying they didn’t have anybody `at the time` who spoke Pashtun. We’re at war in Afghanistan and the main language of the Taliban is Pashtun.
The answer here is to change our foreign policy so that we don’t have to depend on agencies like NSA to try to protect the country. You try to protect the country by having reasonable policies so that we won’t have to worry about terrorism so much. It’s just getting harder and harder to find them.
I think most Americans know about NSA and have some general idea what it’s about, but I was surprised to read about the National Business Park, where there’s been this huge boom in private contractors doing NSA work since September 11.
That came as a huge surprise to me. I’ve watched NSA grow since 1979, and it really came as a shock to me when I saw the National Business Park and how huge it’s grown. What it is is all the private contractors doing what NSA used to do. You see Booz Allen `Hamilton` and Titan and General Dynamics, and then you look at the `local` newspaper and see all these companies advertising for intercept operators and network analysts. This agency, which used to be dedicated to having employees who would work there for 30 years, now is outsourcing so much. I have a statistic in there that in 2001 the NSA had 55 contracts with private firms and in 2005 it had 7,197. If you turn this into a huge `private` industry, and at the same time you’re deregulating the industry — if you look at the financial industry you see the problems you get into when you start deregulating, and that’s what they’ve done here. They’ve deregulated eavesdropping. There are no rules, and the people who are doing it aren’t even really accountable — they’re just employees of private companies. It gets very worrisome.
These are things that are out there to find, but it seems so few people are out there looking. Congress seems to be paying no attention. Even before 9/11, Congress seemed very reluctant to criticize NSA or put restraints on NSA. It seemed like Congress was resisting the Administration’s push last spring. In February, the temporary `Protect America Act` ran out and the Bush administration was pushing very hard to have this new FISA law passed, and the House resisted it until July. They finally buckled in July when they realized the election was about four months away, because they’re all afraid of being accused of being weak on terrorism. But I wonder how many of them really knew much about NSA or the things they were voting for. The only way you’re going to know it is to go to a special room where there was classified information, and they couldn’t take notes, and have to sit there and read it, and how many of them are gonna do that?
We’re talking before the presidential election, but I’m curious what you think might change in regard to the NSA under McCain or Obama, the latter of whom somewhat surprisingly voted for the FISA Amendments Law.
What’s interesting is that Obama seemed to have a lot of disagreements with the changes in the FISA Act early on, and he even threatened to filibuster early on against the legislation the way it `was` written. But then he compromised and voted for it in the end — he said sometimes you’ve gotta compromise, we need something and this is the best we can do. The question is whether you’re gonna stand up for principles when the times get tough or always just compromise. I think if he could have applied enough pressure they could have reworked it. Right now the FISA court is pretty well neutered. I don’t know where that goes.
I don’t think McCain would make much of a change when it comes to NSA. It’s a question of where Obama’s gonna go. You can see his heart is in the right place; he says the right things when these issues come up. But the question is, down the road, is he going to give into political pressure and compromise away some of the things people are voting for him for, or is he gonna stand up?
So where does the NSA go from here? Some of the stuff in the last section of The Shadow Factory reads like science-fiction — data-mining and artificial intelligence.
Right now they’re at a point where they’ve got enormous amounts of money, but they don’t seem to be getting much out of it. They’re getting hugely into this data-mining — look at that building they’re building down in San Antonio. And this is an agency that missed all these terrorist incidents, so what is this for? Is it good money after bad?
The thing I worry about is when you do have so few people watching NSA and so few restrictions on data-mining that they just get carried away with it. That’s why they’re building that huge facility in San Antonio. Not only to store data, which you probably only need about 75 people for — Microsoft, which is building a very similar facility only a few miles away that’s almost exactly the same size, they only have 75. The NSA’s going to put 1,400 people in there. The only reason you need that many people is if you’re not just going to keep the routers humming, is if you’re actually going to dig into all the data in there. And what’s in there could be what I’m looking at on my computer right now, or web searches I’ve been making, or what books people are buying from Amazon or what websites they’re visiting. Those are the things that worry me.
But, as we discussed, the NSA isn’t allowed to eavesdrop on domestic communications.
The restrictions are much less on data communications. The FISA act only really applies to phone communications or email.
When Congress was looking at the NSA back in the ’70s, when the only thing `the agency` could do is listen to your hard-line telephone in your house, `Senator` Frank Church said that he didn’t want the country to go over into the abyss that was there if we ever let this agency get out of control, and that was back then. Look at today, when your every thought, almost, gets transmitted into electrons at one point, either walking down the street talking on a cell phone or sending an email or web-searching. Thirty years ago they didn’t have access to mail, ’cause it was in envelopes, and they couldn’t watch what books you pulled out of the library or look at what magazines you flip through at the newsstand. Now they get to all that stuff by watching your web searches and what sites you visit.
Even with everything you know about the NSA, do you ever think to yourself, I worry too much about this stuff?
I’m not a very paranoid person. I couldn’t have written all these books if I was paranoid. But what bothers me is that there’s this huge agency out there, and there are so few people who know how it works and pay any attention to it. Look at the 9/11 Commission report, for example. They spent all this time looking at the CIA, and they spent no time looking at the NSA. That’s just par for the course. Journalists, everybody, seem to avoid looking at it because it’s surrounded by this wall of secrecy, and it’s highly technical.
I think the thing that bothers me most was how easy it was to take this huge agency and turn it against the law. How easy it was, how few people knew. If it wasn’t for two reporters from the New York Times, we still might not know about it, if you think about it that way.
*Correction: This story originally reported that Hayden's rank at the time he was named director of the National Security Agency was Lieutenant General. His rank was, in fact, Major General.
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