In his press conference on Monday, President Bush tried to shut down discussion of his executive order to intercept the communications of Americans and foreigners resident in the United States without court approval by vilifying those who leaked the story. “We’re at war, and we must protect America’s secrets,” he said. The leak was a “shameful act” that had undermined American security.
Bush presented an analogy to show just how much damage such a leak could cause. “Let me give you an example about my concerns about letting the enemy know what may or may not be happening,” he said. “In the late 1990s, our government was following Osama bin Laden because he was using a certain type of telephone. And then the fact that we were following Osama bin Laden because he was using a certain type of telephone made it into the press as the result of a leak. And guess what happened? Saddam—Osama bin Laden changed his behavior. He began to change how he communicated.” Never mind the confusion of Saddam and Bin Laden (“You can’t distinguish between al Qaeda and Saddam when you talk about the war on terror,” as Bush said in September 2002, and evidently, he doesn’t), the story is meant to turn the tables on critics. Indeed, it was so important to Bush that he brought it up twice in his comments.
Bush’s account is roughly correct, but his analogy is utterly bogus. Here’s what happened: On Aug. 21, 1998, the Washington Times, the capital’s unabashedly conservative newspaper, which regularly breaks more intelligence-related stories than any other daily, ran an article saying that Bin Laden “keeps in touch with the world via computers and satellite phones.” This occurred less than two weeks after the destruction of the U.S. embassies in Nairobi and Dar es Salaam by al-Qaida and the day after the United States had bombed al-Qaida targets in Afghanistan and Sudan. After that report, Bin Laden stopped using his phone and let his aides do the calling. This story is recounted in both The Age of Sacred Terror (2002), which I co-wrote with my National Security Council colleague Steven Simon, and the 9/11 Commission Report. In the years it has been out, I have never heard even a whisper about the Washington Times reporter, Martin Sieff, ever checking with intelligence community officials to see if this revelation would damage U.S. counterterrorism programs, much less holding the story, as the New York Times did with its piece on Bush’s executive order for more than a year.
The Washington Times story was a classic case of “sources and methods” being compromised. Bin Laden undoubtedly recalled the fate of the Chechen insurgent leader Djokar Dudaev, who was killed in 1996 by a Russian missile that homed in on its target using his satellite phone signal. If there was one piece of intelligence in the entire file on Bin Laden that might have spelled the difference between 9/11 happening or not, the satellite phone was it. When Osama hung up for the last time, the United States lost its best chance of finding him and, perhaps, preventing the deaths of 3,000 people.
Bush implied that the story about the satellite phone and the intercepts were of a kind by saying, “I’m not going to talk about that [the NSA intercepts], because it would help give the enemy notification and/or, perhaps, signal to them methods and uses and sources. And we’re not going to do that, which is … it’s really important for people to understand that the protection of sources and the protections of methods and how we use information to understand the nature of the enemy is secret. And the reason it’s secret is because if it’s not secret, the enemy knows about it, and if the enemy knows about it, adjusts.” But this misrepresents the issue, because the New York Times’ story about the National Security Agency eavesdropping on communications that have one terminus in the United States does not, at least on the face of it, compromise “sources and methods.”
It is widely known that NSA listens in on a variety of types of communications abroad, though the specifics remain, appropriately, secret. (In my years working on counterterrorism at the National Security Council, I came to see U.S. signals intelligence as the crown jewel in our collection capabilities.) It is also a matter of public record that the U.S. government has the right to obtain warrants to allow it to listen in on the communications of individuals in the United States for both criminal and intelligence investigations. Furthermore, it has frequently been reported that the FISA Court, the secret court that issues warrants under the Foreign Intelligence Surveillance Act of 1978, almost never turns down applications. In short, no terrorist with half a brain thinks his communications are protected by the Fourth Amendment strictures against unlawful search and seizure.
What is new is not that this kind of surveillance is done but that Bush has ordered signals-intelligence collection without obtaining the warrants that everyone, including virtually the entire United States Congress, thought were necessary in the case of surveillance of communications taking place at least partially in America. This is not about novel sources and methods—the same collection would have occurred if the administration obtained warrants—it is a matter of legality and legitimacy. There appears to be no way in which loose lips about these intercepts will sink ships. They may, however, put a large hole in the administration’s hull.
This is the second time in a matter of six weeks that stories about administration excesses in the war on terror have brought the administration grief. The other was Dana Priest’s Washington Post piece about “black site” detention centers. That story does appear to have compromised sources and methods to some extent, and it may have increased the physical risk that CIA officers face. It could also have a long-term cost in terms of the viability of our liaison relationships with other intelligence services, as publics, especially in Europe, begin to insist on restrictions on cooperation with the U.S. intelligence community. Post editors had to weigh those potential harms against issues of prisoner abuse and the right of the public and of Congress to know what the Bush administration is doing in our name. In a bow to the CIA, the paper withheld the names of the Eastern European countries hosting the detention centers.
In this case, however, there doesn’t appear to have been any significant trade-off. The Times revelation made the Bush administration angry, but it did not tell terrorists anything about our spying on them that they haven’t long assumed. It did, however, tell Americans and a Congress that has been remarkably supine through the war on terror a great deal about the White House’s extraordinary interpretation of the president’s executive prerogatives.