“IF WE DON’T DO THIS, PEOPLE WILL DIE”
On the day after Pearl Harbor, President Roosevelt gave J. Edgar Hoover the power to monitor all telecommunications traffic in and out of the United States. Three weeks after 9/11, President Bush handedRobert Mueller an authority almost as strong. For twenty- nine months following Bush’s order, the FBI had tracked thousands of telephones and Internet addresses in the United States under the aegis of the National Security Agency. “Every day,” as Mueller said, the Bureau investigated “e-mail threats from all around the world saying that this particular terrorist activity is going to occur in the United States.” The task of “neutralizing al-Qaeda operatives that have already entered the U.S. and have established themselves in American society is one of our most serious intelligence and law enforcement challenges,” Mueller told aclosed- door meeting of the Senate Select Committee on Intelligence on February 24, 2004. Now the director faced a task as daunting. He had to defy the president and the vice president of the United States, confrontthem in a showdown over secrecy and democracy, and challenge them in the name of the law.
At least three separate global eavesdropping programs had been mining and assaying the electronic ether under the rubric of Stellar Wind. At least two of them violated the Constitution’s protections against warrantless searches and seizures. Mueller saw no evidence that the surveillances had saved a life, stopped an imminent attack, or discovered an al-Qaeda member in the United States. Stellar Wind had to be reauthorized by the signatures of President Bush and Attorney General Ashcroft every forty- five days. They acted on the basis of reports from the CIA— intelligence officers called them “the scary memos”—justifying the continuing surveillance. The number of people who knew the facts was exceedingly small, but it was growing. A handful of Justice Department lawyers and intelligence court judges thought the programs were unconstitutional and their power had to be controlled. They convinced James Comey, the newly appointed number- two man at the Justice Department. And Comey soon won a convert in Robert Mueller. On March 4, Mueller and Comey agreed that the FBI could not continue to go along with the surveillance programs. The scope of the searches had to be altered to protect the rights of Americans. They thought Attorney General Ashcroft could not re- endorse Stellar Wind as it stood. Comey made his case to his boss in an hour- long argument at the Justice Department that day, and Ashcroft concurred. Comey was a persuasive advocate. One of the FBI’s favorite prosecutors, the grandson of an Irish police commissioner, he had worked with skill and intensity on terrorism cases as the United States attorney in Manhattan for two years after the al-Qaeda attacks. The trust vested in him that day showed that the awe-inspiring force of American national security rested on personal relationships as well as statutory powers.
That night, hours after Comey won him over, Ashcroft suffered a waveof excruciating nausea and pain. Doctors diagnosed a potentially fatal caseof gallstone pancreatitis. He was sedated and scheduled for surgery. WithAshcroft incapacitated, Comey was the acting attorney general and chieflaw enforcement officer of the United States.Stellar Wind had to be reauthorized on March 11. Seven days of strugglelay ahead, a tug- of- war between security and liberty. Mueller was “a greathelp to me over that week,” Comey said.The FBI director met Vice President Cheney at the White House at noonon March 9. They stared at one another across the table in the corner offi ceof the president’s chief of staff, Andrew Card. Cheney was adamant: no onehad the right to challenge the president’s power. The spying would continueat his command. It would go on with or without the Justice Department’sapproval.“I could have a problem with that,” Mueller replied. His notes of themeeting say that he told the vice president that the FBI had to “review legalityof continued participation in the program.”On March 10, President Bush ordered Card and the White House counselAlberto Gonzales to go to the intensive care unit at George WashingtonUniversity Hospital, one mile northwest of the White House, and to getAshcroft’s signature. An FBI security detail guarded Ashcroft’s room. He had come out of surgery the day before. He was in no condition to receiveguests, much less sign secret presidential orders. The president called thehospital at 6:45 p.m. and insisted on talking to Ashcroft. His wife took thecall.The president told her that it was a matter of national security. Shewould not hand over the phone. The FBI agents had the presence of mindto alert Ashcroft’s chief of staff that the president’s men were on their way.He called Comey. The acting attorney general called Mueller, asking him tomeet him at the hospital and bear witness to the confrontation.They raced to the intensive care unit. Comey got there first. He walkedinto the darkened room and saw that Ashcroft was fading: “I immediatelybegan speaking to him . . . and tried to see if he could focus on what washappening. And it wasn’t clear to me that he could. He seemed pretty badoff.” Comey stepped out into the hallway and called Mueller again. Thedirector said he would be there in a few minutes. He wanted to speak withhis agents. He ordered them to make sure that the president’s men did notthrow the acting attorney general out of the hospital room.The FBI agents recorded that Card and Gonzales entered at 7:35 p.m.Gonzales stood at the head of the bed holding a manila envelope with thepresidential authorization inside. He told Ashcroft he wanted his signature.Ashcroft lifted his head off his pillow. He refused. “In very strong terms,”he said the program was illegal; his argument was “rich in both substanceand fact— which stunned me,” Comey said. Then Ashcroft laid down hishead and said: “But that doesn’t matter, because I’m not the attorney general.There is the attorney general.” And then he pointed at Comey.Mueller crossed paths with the president’s empty- handed emissaries asthey stalked out. They were about to cross swords.The president signed the authorization alone in the White House on themorning of March 11. It explicitly asserted that his powers as commander inchief overrode all other laws of the land. Mueller met with White Housechief of staff Card at noon. His notes say that he told Card that “the WHwas trying to do an end run” around the law.Mueller drafted a letter of resignation by hand at 1:30 a.m. on March 12,2004. “In the absence of clarification of the legality of the program from theAttorney General,” he wrote, “I am forced to withdraw the FBI from participationin the program. Further, should the President order the continuationof the FBI’s participation in the program, and in the absence of further legal advice from the AG, I would be constrained to resign as Directorof the FBI.”Seven hours later, Mueller went to the morning briefing with the presidentat the White House. It had been a busy night in the world of counterterrorism.In Madrid, Islamic jihadists claiming inspiration from al-Qaedahad set off ten bombs in four commuter trains. They killed 191 people andwounded 1,800, the worst terrorist attack in Europe since the bombing ofPan Am 103 over Lockerbie in 1988. The FBI was looking for links to theUnited States.After the meeting, the president stood alone with Mueller in the OvalOffi ce. Bush now realized that the FBI director, the attorney general, andhis deputy were in rebellion. Mueller told Bush face- to- face that he wouldresign if the FBI was ordered to continue warrantless searches on Americanswithout an order from the Department of Justice. Mueller said he hadan “independent obligation to the FBI and to DOJ to assure the legality ofactions we undertook,” according to his recently declassified notes of themeeting. “A presidential order alone could not do that.”Both men had sworn upon taking office to faithfully execute the laws ofthe United States. Only one still held to his oath.The president pleaded ignorance of the law and the facts. He said hehadn’t known there had been legal problems with Stellar Wind. He said hehadn’t known Ashcroft had been in the hospital. He said he hadn’t knownMueller and Comey had been blowing the whistle. He was almost surelydeceiving the director, and deliberately.Without doubt he saw a political disaster at hand. “I had to make a bigdecision, and fast,” Bush wrote in his memoirs. “I thought about the SaturdayNight Massacre in October 1973”—when Nixon defied the Justice Departmentover his secret tapes, forced the attorney general and his deputyto resign, and destroyed his presidential aura of power. “That was not ahistorical crisis I was eager to replicate. It wouldn’t give me much satisfactionto know I was right on the legal principles while my administrationimploded and our key programs in the war on terror were exposed in themedia.”Bush promised to put the programs on a legal footing. This did not happenovernight. It took years. But based on the president’s promise, Muellerand his allies backed down from their threats to resign. Bush kept the secretfor twenty more months. The man who fi rst blew the whistle on the warrantless surveillance was a Justice Department lawyer named ThomasTamm; his father and his uncle had been two of J. Edgar Hoover’s closestaides at headquarters. By the time the fi rst facts were revealed in The NewYork Times, both Ashcroft and Comey had resigned from the Bush administration.Mueller’s stand against the president stayed secret far longer. But Comeytold a select audience at the National Security Agency what Mueller hadheard from Bush and Cheney at the White House:“If we don’t do this, people will die.” You can all supply yourown this: “If we don’t collect this type of information,” or “If wedon’t use this technique,” or “If we don’t extend this authority.” It isextraordinarily difficult to be the attorney standing in front of thefreight train that is the need for this . . . It takes far more than a sharplegal mind to say “no” when it matters most. It takes moral character. Ittakes an ability to see the future. It takes an appreciation of the damagethat will fl ow from an unjustified “yes.” It takes an understanding that,in the long run, intelligence under law is the only sustainableintelligence in this country.Mueller testified in public before the 9/11 Commission one month later,on April 14, 2004, and he never breathed a word of what had happened atthe White House. He never has.“The beginnings of an intelligence service”The commission and Congress accepted the director’s assurance that theFBI could safeguard both liberty and security. But they asked more fromMueller. They wanted to know that the FBI was using the full powers Congresshad granted it under the Patriot Act of 2001.It was, but not always well. On May 6, 2004, the FBI arrested an Oregonattorney, Brandon Mayfield, on a material witness warrant in connectionwith the Madrid bombings. He was an American citizen who had convertedto Islam. The FBI had used every wiretapping and surveillance tool it hadagainst Mayfield for seven weeks. The case rested on the FBI’s misreadingof a fingerprintlifted from a plastic bag in Madrid. Spanish police had toldthe FBI legal attaché in Madrid that Mayfield was the wrong man. He wasnonetheless arrested after that warning. The arrest led to two weeks ofharsh imprisonment in solitary confinement before he was freed; he laterwon a formal apology and a $2 million settlement from the government.The Patriot Act, written swiftly, in a state of fear, had greatly expandedthe force of national security letters, a tactic rarely used before 9/11. Theletters commanded banks, credit bureaus, telephone companies, and Internetservice providers to turn over records about their customers to the FBI.They also compelled the recipients to remain silent— they could tell noone, not even a lawyer. They had the combined power of a subpoena and agag order. The FBI was sending out close to one thousand of these letters aweek; more than half the targets were American citizens. FBI agents saidthey were indispensable investigative tools, the bread and butter of counterterrorismin the United States. But the letters, like warrantless wiretaps,were also a form of breaking and entering. An FBI supervisor could writethem without a judge’s order or a prosecutor’s request.By September 2004, federal judges were starting to fi nd them unconstitutional.The courts struck down the provisions of the Patriot Act that gavethe FBI those powers; Congress rewrote the law to preserve them. The Bureaunow had to justify the gag order to a judge, but the letters continued.The FBI’s counterterrorism agents also were abusing their power by creating“exigent letters”—emergency subpoenas for thousands of telephonerecords— without telling anyone at headquarters. An endless succession ofassistant directors, deputies, and special agents in charge did not learn therules or their roles. Mueller said: “We did not have a management system inplace to assure that we were following the law.” He conceded that the Bureauhad misused the Patriot Act to obtain intelligence.The testimony that the 9/11 Commission heard left many of the commissionersthinking that the Bureau should be rebuilt. They seriously consideredcreating a new domestic intelligence service to supplant the FBI.Mueller fought a three- front battle with the commission, the Congress, andthe White House to keep the Bureau from becoming a house divided, withlaw enforcement on one side and intelligence on the other. The strugglewent on every day through the summer and fall of 2004, and into the nextyear.The only part of the commission’s report on the FBI that was writteninto law was an order commanding the creation of “an institutional culturewith substantial expertise in, and commitment to, the intelligence mission.”Mueller had been trying to do that for years. His progress was slow anduneven, but he soon achieved his goal of doubling the number of intelligenceanalysts at the FBI. There were now two thousand of them, and theywere no longer assigned to answer phones and empty the trash.Mueller had confidently reported to the commission that he was makinggreat strides, “turning to the next stage of transforming the Bureau into anintelligence agency.” But the FBI was at least fi ve years away from that goal.The president had been compelled to create his own intelligence commissionafter conceding that the weapons of mass destruction in Iraq werea mirage. Federal appeals court judge Laurence Silberman led it. He wasCheney’s choice; the two were of one mind about the Bureau. They hadbeen for thirty years, ever since Silberman was deputy attorney general andCheney President Ford’s chief of staff. Back then, after Nixon fell, the WhiteHouse had sent Silberman to search the secret fi les of J. Edgar Hoover. Thejudge had had a barb out for the Bureau ever since.“It was the single worst experience of my long governmental service,”Judge Silberman told his fellow judges. “Hoover had indeed tasked hisagents with reporting privately to him any bits of dirt on fi gures such asMartin Luther King, or their families. Hoover sometimes used that informationfor subtle blackmail to ensure his and the Bureau’s power . . . Ithink it would be appropriate to introduce all new recruits to the nature ofthe secret and confidential files of J. Edgar Hoover. And in that connectionthis country— and the Bureau— would be well served if his name were removedfrom the Bureau’s building.”Silberman’s report on the FBI, in the works throughout the winter of2004 and sent to the White House on March 31, 2005, was a steel- wire scrubbing.“It has now been three and a half years since the September 11 attacks,”the report’s chapter on the Bureau began. “Three and a half years after December7, 1941, the United States had built and equipped an army and anavy that had crossed two oceans, the English Channel, and the Rhine; ithad already won Germany’s surrender and was two months from vanquishingJapan. The FBI has spent the past three and a half years buildingthe beginnings of an intelligence service.” The report warned that it wouldtake until 2010 to accomplish that task.The report bore down hard on the FBI’s intelligence directorate, createdby Mueller two years before. It concluded that the directorate had greatresponsibility but no authority. It did not run intelligence investigations oroperations. It performed no analysis. It had little sway over the fifty-six field groups it had created. No one but the director himself had power over any of these fiefs.“We asked whether the Directorate of Intelligence can ensure that intelligencecollection priorities are met,” the report said. “It cannot. We askedwhether the directorate directly supervises most of the Bureau’s analysts. Itdoes not.” It did not control the money or the people over whom it appearedto preside. “Can the FBI’s latest effort to build an intelligence capabilityovercome the resistance that has scuppered past reforms?” the reportasked. “The outcome is still in doubt.” These were harsh judgments, all themore stinging because they were true.If the FBI could not command and control its agents and its authorities,the report concluded, the United States should break up the Bureauand start anew, building a new domestic intelligence agency from theground up.With gritted teeth, Mueller began to institute the biggest changes in thecommand structure of the Bureau since Hoover’s death. A single NationalSecurity Service within the FBI would now rule over intelligence, counterintelligence,and counterterrorism. The change was imposed effective inSeptember 2005. As the judge had predicted, it would take the better part offive years before it showed results.“Who is calling shots?”The war in Iraq was throwing sand into the FBI’s gears. Hundreds of agentshad rotated through Iraq, and hundreds more labored at the FBI’s crimelab in Quantico, Virginia, taking part in a battle that seemed to have no end.They analyzed tens of thousands of fingerprints and biometric data fromprisoners, looking for leads on al-Qaeda. They worked to capture, analyze,and reverse- engineer tens of thousands of fragments of the improvised explosivedevices that were killing American soldiers.Members of the FBI’s vaunted hostage rescue team, trained in commandotactics, were in high demand in both Iraq and Afghanistan. Somehad been through four tours of duty in battle, more than any soldier in thewar, by the summer of 2005.The team was now preparing a military assault on a terrorist who hadbeen on the FBI’s Most Wanted list for more than twenty years.440 | enemiesThe Bureau had been after Filiberto Ojeda Ríos ever since the January1975 bombing of the Fraunces Tavern in New York, one of the fi rst murderousterrorist attacks of the modern age. The Puerto Rican independencemovement’s armed forces, the FALN, had taken the credit. The FBI had runCOINTELPRO operations against the independence movement throughoutthe sixties and early seventies; Hoover himself had cited “the increasingboldness” of their political programs and “the courage given to their causeby Castro’s Cuba.”Ojeda was the FALN’s commander. He had been trained by the Cubanintelligence service from 1961 to 1967, and he had returned to Puerto Ricoas a revolutionary. Arrested by an FBI agent in San Juan, he jumped bailand fled to New York, where he worked under the protection of Castro’sintelligence officers at the Cuban mission to the United Nations. By thestart of 1974, Ojeda had organized the FALN in New York and Chicago.The FBI blamed the group for more than 120 terrorist bombings over thenext decade; the attacks had killed a total of six people and done millions ofdollars of damage. The Bureau got a lucky break on November 1, 1976, whena heroin addict broke into the FALN’s secret hideout in the Westown sectionof Chicago, looking for something to steal. He found a cache of dynamiteand he tried to sell it on the street. Two days later, on November 3, 1976, theChicago police and the FBI heard about his offer and got a warrant to searchthe apartment he had burglarized. They found the fi rst working bomb factoryever discovered in a terrorist investigation in the United States. The safehouse held explosives, batteries, propane tanks, watches, and a treasuretrove of documents. The investigation led to a series of indictments. TheFBI had wounded the FALN, but it did not kill the group.Ojeda fl ed again to Puerto Rico, from which he oversaw the assassinationof a United States Navy sailor in San Juan in 1982 and directed a $7.1million Wells Fargo bank robbery in Connecticut in 1983. The FBI believedthat half the money went to Cuban intelligence.A new FBI special agent in charge in San Juan, Luis Fraticelli, had createda fifteen- member terrorism squad. Tracking down Ojeda was its toppriority. Thirty years had passed since the Fraunces Tavern bombing.During the summer of 2005, the squad determined that the seventytwo-year- old fugitive was living in a small house up a dirt road outside anisolated hamlet on the western edge of Puerto Rico. Fraticelli asked for thehostage rescue team to hunt him down.FBI headquarters approved the deployment. Ten snipers and a support team landed in Puerto Rico ten days later, on September 23, 2005. There was going to be no negotiation. No member of the team spoke Spanish.But the plan went awry. A helicopter dropped the hostage rescue force inthe wrong location. Their cover was blown quickly. By the time they foundOjeda’s house, a crowd had gathered down the road, chanting “FBI assassins.”Shots were fi red— by the FBI and its target— at 4:28 p.m. A standoffensued. The assault team hunkered down. Rain started falling as night drewnear. The FBI’s leaders, monitoring events from headquarters, grew worried.Willie Hulon— the FBI’s sixth counterterrorism director in four yearsunder Mueller— called his superior, Gary Bald, the FBI’s new national securitychief.“Bald believed that there was confusion regarding who was in command,”an understated after- action report recounted. He wrote in his notes: “Who is calling shots?”
The answer was three different FBI chieftains.In San Juan, the highly stressed special agent in charge wanted an immediateattack. In Quantico, the commander of the hostage rescue teamwanted to send in fresh troops. In Washington, Hulon wanted to see a writtenplan of attack. As midnight approached, Bald told the team to standdown. Its members strongly disagreed. Their commander dispatched a newteam from Dulles International Airport at 1:00 a.m. on September 24. Theyentered the small white house, pierced with 111 bullet holes, shortly afternoon. They found Ojeda’s body on the fl or with a loaded and cockedBrowning 9mm handgun by his side. He had been dead since the first exchangeof gunfire. No one at headquarters faulted the team that took himdown. Ojeda was a terrorist and an assassin, and he had fired on the FBI,wounding one agent, before he died.But “Who is calling shots?” was a resounding question. Given the continuinginability of the commanders of the FBI and their agents in thefi eld to communicate, it was hard to see who could put them on the samewavelength. The ever- changing leadership of the FBI’s counterterrorismand intelligence chiefs made it harder. Most had cashed out for more rewardingjobs as security directors at credit- card companies, casinos, andcruise lines.Every morning, Mueller read through the daily threat reports that cameout of the new National Counterterrorism Center, up to twenty pages a dayof captured e-mails, tips from foreign intelligence services, interviews withinformants, and reports about suspicious characters from state and localpolice. On an average day, the FBI’s in- house threat- tracking system, called Guardian, recorded as many as one hundred alerts. The great majorityturned out to be false alarms.The FBI had to find a way to analyze it all, choose targets for investigations,and turn those investigations into arrests and indictments that wouldstand up in court and be counted as victories against the enemy. Muellerstill needed to make intelligence into a tool for law enforcement.There was a way. Mueller needed a new general and a new strategy.“This is on our watch”He found the commander he had been looking for in Philip Mudd, theprematurely gray and deceptively mild- mannered deputy director of theCIA’s Counterterrorist Center. They had testified together for years in classified briefings; Mueller liked the way his new recruit thought and spoke.Mudd was a professional intelligence analyst, a twenty- year veteran of theCIA who had served as the National Security Council’s director for PersianGulf and Middle East issues and worked in Kabul with the American ambassadorin Afghanistan.Mudd became the chief of the FBI’s National Security Division onApril 27, 2006. Though he had been unraveling secrets all his life, he confessedthat the FBI mystified him.“It took me maybe six to twelve months to understand,” he said. “We’renot about collecting intelligence. We’re about looking at a problem andusing our combined intelligence and law- enforcement skills to do somethingabout that problem in a way that provides security for Los Angeles orChicago or Tuscaloosa. This is a profound difference, in my judgment, betweenthe other intelligence challenges I’ve seen over time.“This is bigger, harder, and it has, in some ways, greater implications forthe security of this country,” he said. “This is on our watch. If we don’t getit right, it’s our bad.”Mueller and Mudd took a hard look at the correlation of forces in the waron terror in the spring and summer of 2006. The Bush administration wasflagging. The attempts by the administration to use spies and soldiers to captureand interrogate suspected terrorists were starting to collapse. Torturetainted testimony against the suspects, making their conviction by Americanjuries next to impossible. And the Supreme Court ruled that the presidentdid not have the authority to create war crimes tribunals at Guantánamo. Bush had fired his CIA director, and he was about to jettison his defensesecretary. His attorney general, Alberto Gonzales, the former White Housecounsel, was widely regarded as a weak reed. Vice President Cheney’s topnational security aide, I. Lewis “Scooter” Libby, had been convicted of perjuryand obstruction of justice for lying about a CIA leak investigation; hewas the highest- ranking White House official convicted of a felony sincethe Iran- contra imbroglio. The war in Iraq was going badly. Al-Qaeda wasstill rampant; its methods were metastasizing; the images from Abu Ghraibbecame a recruiting poster across the world. After the embarrassing exposureof the extralegal aspects of the Stellar Wind eavesdropping program,Congress worked to expand the warrantless wiretapping powers of the government.It eventually legalized parts of the president’s secret surveillance;it made eavesdropping inside America easier. Since much of the world’stelecommunications traffic is routed through the United States, regardlessof its origins, the NSA and the FBI could trap an international e-mail storedon a Microsoft server or trace a call switched through an AT&T office withouta warrant. Nonetheless, five years of hot pursuit had failed to find asingle al-Qaeda suspect in America. Yet the FBI had an ominous sense thatthey were out there somewhere.There was another way to smoke them out. What had worked for Hooveragainst the Ku Klux Klan and the Communist Party of the United Statescould work for Mueller against the threat of Islamic terrorism. The FBIwould seek and arrest potential terrorists with undercover stings. It was atime- honored strategy that criminal investigators understood and intelligenceagents savored. It combined secret investigations with the satisfactionof big arrests and blazing headlines. It required two essential elements: aconvincing con man as the informant and a credulous suspect as the target.No jury in Los Angeles, Chicago, or Tuscaloosa would accept an argumentof entrapment by an accused terrorist handcuffed and shackled by the FBI.Over the next three years— until the FBI found its first actual al-Qaedaoperative in America— the undercover sting became a central strategyof counterterrorism in America. Mueller made it official in a speech onJune 23, 2006, announcing the arrests of seven men in a Miami slum whowere accused of plotting to blow up the Sears Tower in Chicago, the tallestbuilding in America. Mueller called the men members of a “homegrownterrorist cell . . . self- recruited, self- trained, and self- executing. They maynot have any connection to al-Qaeda or to other terrorist groups. Theyshare ideas and information in the shadows of the Internet. They gain inspiration from radical websites that call for violence. They raise money bycommitting low- level crimes that do not generate much attention. Theyanswer not to a particular leader, but to an ideology. In short, they operateunder the radar.”The Liberty City Seven, as they were called, were half- bright thugs withoutthe apparent means or the skills to carry out an attack on anythingbigger than a liquor store. Their plotting was more aspirational than operational,as the FBI’s deputy director, John Pistole, put it— a phrase thatwould often be repeated. It took three trials to convict five of the men. Butcase after case against the homegrown threat followed across the country.An undercover FBI agent in Illinois trailed a twenty- two- year- old thug whotraded his stereo speakers for four fake hand grenades; he said he intendedto kill shoppers in a mall outside Chicago during Christmas week of 2006.In another investigation, Mueller singled out the work of a former GreenBeret in Ohio who had tracked two naturalized Americans from Jordan asthey lifted weights, slugged down steroids, and talked about murderingAmerican soldiers in Iraq.More than half the major cases the FBI brought against accused terroristsfrom 2007 to 2009 were stings. The Bureau unveiled a spectacular- soundingindictment on May 8, 2007, charging a plot to attack the military base at FortDix, New Jersey, with heavy weapons. The ringleaders were three pot- smokingpetty criminals in their twenties, all illegal immigrants from Albania, andtheir brother- in- law, a Palestinian cabdriver. They had taped themselves at ashooting range, shouting “God is great,” and they brought the tape to a videoclerk to convert it to a DVD. He called the FBI, which infiltrated the groupwith an informant, who offered to provide assault rifles and grenades. Aneven more frightening case emerged on June 3, 2007, when the FBI arresteda sixty- three- year- old suspect, who had once worked at Kennedy Airport inNew York, and charged him with leading a plot to blow up aviation fueltanks and pipelines surrounding the passenger terminals. The informant, aconvicted cocaine dealer, recorded his target on tape: “To hit John F. Kennedy,wow,” he said. “They love JFK— like the man. If you hit that, the wholecountry will be in mourning. It’s like you can kill the man twice.”A thirty- one- year-old former navy signalman was convicted on March 5,2008, in a case based in large part upon an e-mail he had sent seven yearsbefore. The defendant, born Paul Hall, had changed his name to HassanAbu-Jihad, a choice that had raised no eyebrows when he joined the navy.While aboard the USS Benfold in the Persian Gulf in April 2001, five months after the bombing of the Cole, he had sent messages to an online jihadforum in London embracing al-Qaeda and disclosing the deployment often navy ships to the Gulf. He received a twenty- five-year sentence.These cases made good stories. The FBI represented them as real- timethreats from real- life radicals in the United States. As long as the nation didnot suffer an actual attack, most Americans cared little that some of thecases were concoctions, that the FBI sometimes supplied the guns and missiles,that not every e-mail was a fuse for an explosive, or that the plottersmight not be homegrown terrorists but garden- variety lunatics.The FBI had more than seven hundred million terrorism- related recordsin its files. The list of suspected terrorists it oversaw held more than 1.1 millionnames. Finding real threats in the deluge of secret intelligence remaineda nightmarish task. The Bureau’s third attempt to create a computernetwork for its agents was floundering, costing far more and taking farlonger than anyone had feared. It remained a work in progress for years tocome; only one- third of the FBI’s agents and analysts were connected to theInternet. Mueller had the authority to hire two dozen senior intelligenceofficers at headquarters. By 2008, he had found only two. Congress continuedto flog the FBI’s counterterrorism managers for their failures of foresightand stamina; Mueller had now seen eight of them come and go.And the FBI’s relentless focus on fighting terrorism had an unforeseenconsequence. The investigation and prosecution of white- collar crimeplummeted, a boon to the Wall Street plunderings that helped create thegreatest economic crisis in America since the 1930s.Mueller remained in high repute as the Bush administration came to aclose. So did Mudd, who stayed on as the director’s senior intelligence aide.With guidance from the secretary of defense, the former director of centralintelligence Robert Gates, they began to develop a global counterterrorismstrategy that won favor with both parties in Congress and both candidatesrunning for the White House in the fall of 2008. All three would stay onunder the next president. All three would shape his strategies.“The purpose that has always guided our power”On April 28, 2009, President Barack Obama came to the Hoover Buildingfor a public celebration of the FBI’s hundredth anniversary. A crowd ofclerks and secretaries began to assemble in the central courtyard of the Bureau’s concrete fortress. The FBI’s elite, bearing their gold badges, walkedout to the courtyard with Obama. The centennial banner, drooping slightly,hung at the back wall.“Back in 1908, there were just thirty-four special agents reporting toTheodore Roosevelt’s attorney general. Today, there are over 30,000 menand women who work for the FBI,” the president began. “So much haschanged in the last one hundred years,” he said, turning on the charm.“Thank God for change.” The crowd went wild.“I also know that some things have remained constant,” he said, hisvoice leveling. “The rule of law—that is the foundation on which Americawas built. That is the purpose that has always guided our power. And thatis why we must always reject as false the choice between our security andour ideals.”Obama had come of age as a champion of civil liberties and constitutionallaw. In the Oval Office, he took a harder line than he had proclaimedin public. His choices on counterterrorism sometimes shocked his supporters.He decided to hunt and kill al-Qaeda in Afghanistan and Pakistan.The United States carried the fight to thousands who adhered to the credoof jihad. Guided by the imperative of preventing the next attack, he wentbeyond what his predecessors had done to solve the conundrums of counterterrorism.He was the first president since the end of the Cold War tocoordinate America’s military and intelligence powers into lethal forcesunder clear-cut rules.Under Obama, the CIA and the Pentagon obliterated hundreds of terroristsuspects, and sometimes civilians as well, with a ceaseless barrage ofrockets fi red by drones over Afghanistan and Pakistan. While Americancommandos killed Osama bin Laden and other al-Qaeda leaders, the StateDepartment used muscular diplomacy to win cooperation from many ofthe nations of Islam, aided by the uprisings of the Arab Spring, led by rebellionsagainst dictators in the name of democracy. To maintain law andorder in the war on terror, Obama gave the FBI control over the toughestal-Qaeda captives, the high-value detainees. He entrusted Robert Muellerand his agents with the task of arresting and interrogating terrorists withoutmangling American laws and liberties.The FBI was now a part of a growing global network of interwoven nationalsecurity systems, patched into a web of secret information sharedamong police and spies throughout America and the world. The Bureautrapped more suspects with more stings, and more sophisticated ones. It sometimes worked at the edge of the law, and arguably beyond, in the surveillance of thousands of Americans who opposed the government withwords and thoughts, not deeds or plots. But it also used superior intelligencework to arrest Najibullah Zazi, an Afghan immigrant allied with al-Qaeda, and to bring him to a federal court in New York, where he pleadedguilty to plotting to plant a bomb in a subway as the tenth anniversary of9/11 approached. In October 2011, another al-Qaeda-inspired terrorist,Umar Farouk Abdulmutallab, pleaded guilty to trying to destroy a Deltaairliner with 278 passengers over Detroit on the previous Christmas Day.He had explosives planted in his underwear.The federal judge asked him if he knew he had broken the law. “Yes, U.S.law,” he said. The cases were proof that terrorist suspects could be tried andconvicted in American courts under law, without military tribunals or confessionsextracted by torture in secret prisons.On the home front, Americans had become inured to the gaze of closed circuitcameras, the gloved hands of airport guards, and the phalanx ofcops and guardsmen in combat gear. Many willingly surrendered libertiesfor a promise of security. They might not love Big Brother, but they knewhe was part of the family now.Yet there was still a sign that the rule of constitutional law might governcounterterrorism in the years to come. A new set of guidelines for the FBI’sintelligence investigations emerged on November 7, 2011. It followed froma decade of struggle over how to use the immense powers thrust upon theBureau in the war on terror, and three years of trying to repair the damagedone in the name of national security under the Bush administration.The FBI’s new rules set specific legal limits on intelligence searches andseizures, wiretaps and bugs, data mining and electronic eavesdropping, thetrapping and tracing of e-mails and cell phones. The 460-page manual,made public with significant deletions, looked like something new in thetwenty-first century. It looked as if the American government was trying, ingood faith, to balance liberty and security.The FBI, which still has no legal charter from Congress, had been fightingfor a century over what it could do in the name of national security.Attorney General Edward Levi had been the first to try to govern the Bureauthirty-fi ve years earlier, in the wake of Watergate. He had acted in thetradition of Justice Harlan Fiske Stone, the pillar of the law who first appointedJ. Edgar Hoover, and who had warned that a secret police was amenace to a free society.
The FBI might now have created the first realistic operating manual forrunning a secret intelligence service in an open democracy. The new rulessaid at the outset that “rigorous obedience to constitutional principles andguarantees is more important than the outcome of any single interview,search for evidence, or investigation.” They made it clear that the FBI couldnot investigate people for “opposing war or foreign policy, protesting governmentactions, or promoting certain religious beliefs,” or because theywere aliens or anarchists or Arab Americans. The unleashing of the unlimitedpowers of the FBI’s ability to conduct unwarranted searches and seizuresand surveillances now required a declaration of war by Congressrather than a secret presidential decree. These principles once might have seemed self-evident, but the FBI had violated them time and again in the past.
The continuity of Robert Mueller contributed to this change. No other FBI director ever had the stability to serve the ten-year term that Congress had imposed on the office after Hoover’s death. Some had left in disgrace or disrepute. Mueller had persevered. He passed the milestone a decade after the 9/11 attacks. Obama asked him to stay on for two more years. He would serve until September 2013, if he could withstand the pressure of each passing day. He would be approaching seventy by then, and he had aged in office, his hair white, his face gray, his eyes weary, as every morning brought a barrage of fresh threats and false alarms. But ever since he had confronted a president over the limits of his powers to spy on American citizens, he had stood for a principle. He had said back then that he wantedno historian to write: “You won the war on terrorism, but you sacrificed your civil liberties.”
The chance remained that the principle might prevail, the possibility that in a time of continual danger Americans could be both safe and free.
Excerpted from ENEMIES by Tim Weiner Copyright © 2012 by Tim Weiner. Excerpted by permission of Random House, a division of Random House, Inc. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.