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 handed Robert 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 a closed-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, confront them 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 wave of excruciating nausea and pain. Doctors diagnosed a potentially fatal case of gallstone pancreatitis. He was sedated and scheduled for surgery. With Ashcroft incapacitated, Comey was the acting attorney general and chief law enforcement officer of the United States.
Stellar Wind had to be reauthorized on March 11. Seven days of struggle lay ahead, a tug-of-war between security and liberty. Mueller was “a great help to me over that week,” Comey said.
The FBI director met Vice President Cheney at the White House at noon on March 9. They stared at one another across the table in the corner office of the president’s chief of staff, Andrew Card. Cheney was adamant: no one had the right to challenge the president’s power. The spying would continue at his command. It would go on with or without the Justice Department’s approval.
“I could have a problem with that,” Mueller replied. His notes of the meeting say that he told the vice president that the FBI had to “review legality of continued participation in the program.”
On March 10, President Bush ordered Card and the White House counsel Alberto Gonzales to go to the intensive care unit at George Washington University Hospital, one mile northwest of the White House, and to get Ashcroft’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 receive guests, much less sign secret presidential orders. The president called the hospital at 6:45 P.M. and insisted on talking to Ashcroft. His wife took the call.
The president told her that it was a matter of national security. She would not hand over the phone. The FBI agents had the presence of mind to 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 to meet him at the hospital and bear witness to the confrontation.
They raced to the intensive care unit. Comey got there first. He walked into the darkened room and saw that Ashcroft was fading: “I immediately began speaking to him … and tried to see if he could focus on what was happening. And it wasn’t clear to me that he could. He seemed pretty bad off.” Comey stepped out into the hallway and called Mueller again. The director said he would be there in a few minutes. He wanted to speak with his agents. He ordered them to make sure that the president’s men did not throw 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 the presidential 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 substance and fact—which stunned me,” Comey said. Then Ashcroft laid down his head 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 as they stalked out. They were about to cross swords.
The president signed the authorization alone in the White House on the morning of March 11. It explicitly asserted that his powers as commander in chief overrode all other laws of the land. Mueller met with White House chief of staff Card at noon. His notes say that he told Card that “the WH was 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 the Attorney General,” he wrote, “I am forced to withdraw the FBI from participation in the program. Further, should the President order the continuation of 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 Director of the FBI.”
Seven hours later, Mueller went to the morning briefing with the president at the White House. It had been a busy night in the world of counterterrorism. In Madrid, Islamic jihadists claiming inspiration from al-Qaeda had set off ten bombs in four commuter trains. They killed 191 people and wounded 1,800, the worst terrorist attack in Europe since the bombing of Pan Am 103 over Lockerbie in 1988. The FBI was looking for links to the United States.
After the meeting, the president stood alone with Mueller in the Oval Office. Bush now realized that the FBI director, the attorney general, and his deputy were in rebellion. Mueller told Bush face-to-face that he would resign if the FBI was ordered to continue warrantless searches on Americans without an order from the Department of Justice. Mueller said he had an “independent obligation to the FBI and to DOJ to assure the legality of actions we undertook,” according to his recently declassified notes of the meeting. “A presidential order alone could not do that.”
Both men had sworn upon taking office to faithfully execute the laws of the United States. Only one still held to his oath.
The president pleaded ignorance of the law and the facts. He said he hadn’t known there had been legal problems with Stellar Wind. He said he hadn’t known Ashcroft had been in the hospital. He said he hadn’t known Mueller and Comey had been blowing the whistle. He was almost surely deceiving the director, and deliberately.
Without doubt he saw a political disaster at hand. “I had to make a big decision, and fast,” Bush wrote in his memoirs. “I thought about the Saturday Night Massacre in October 1973”—when Nixon defied the Justice Department over his secret tapes, forced the attorney general and his deputy to resign, and destroyed his presidential aura of power. “That was not a historical crisis I was eager to replicate. It wouldn’t give me much satisfaction to know I was right on the legal principles while my administration imploded and our key programs in the war on terror were exposed in the media.”
Bush promised to put the programs on a legal footing. This did not happen overnight. It took years. But based on the president’s promise, Mueller and his allies backed down from their threats to resign. Bush kept the secret for twenty more months. The man who first blew the whistle on the warrantless surveillance was a Justice Department lawyer named Thomas Tamm; his father and his uncle had been two of J. Edgar Hoover’s closest aides at headquarters. By the time the first facts were revealed in The New York Times, both Ashcroft and Comey had resigned from the Bush administration.
Mueller’s stand against the president stayed secret far longer. But Comey told a select audience at the National Security Agency what Mueller had heard from Bush and Cheney at the White House:
“If we don’t do this, people will die.” You can all supply your own this: “If we don’t collect this type of information,” or “If we don’t use this technique,” or “If we don’t extend this authority.” It is extraordinarily difficult to be the attorney standing in front of the freight train that is the need for this … It takes far more than a sharp legal mind to say “no” when it matters most. It takes moral character. It takes an ability to see the future. It takes an appreciation of the damage that will flow from an unjustified “yes.” It takes an understanding that, in the long run, intelligence under law is the only sustainable intelligence 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 at the White House. He never has.
The commission and Congress accepted the director’s assurance that the FBI could safeguard both liberty and security. But they asked more from Mueller. They wanted to know that the FBI was using the full powers Congress had granted it under the Patriot Act of 2001.
It was, but not always well. On May 6, 2004, the FBI arrested an Oregon attorney, Brandon Mayfield, on a material witness warrant in connection with the Madrid bombings. He was an American citizen who had converted to Islam. The FBI had used every wiretapping and surveillance tool it had against Mayfield for seven weeks. The case rested on the FBI’s misreading of a fingerprint lifted from a plastic bag in Madrid. Spanish police had told the FBI legal attaché in Madrid that Mayfield was the wrong man. He was nonetheless arrested after that warning. The arrest led to two weeks of harsh imprisonment in solitary confinement before he was freed; he later won a formal apology and a $2 million settlement from the government.
The Patriot Act, written swiftly, in a state of fear, had greatly expanded the force of national security letters, a tactic rarely used before 9/11. The letters commanded banks, credit bureaus, telephone companies, and Internet service providers to turn over records about their customers to the FBI. They also compelled the recipients to remain silent—they could tell no one, not even a lawyer. They had the combined power of a subpoena and a gag order. The FBI was sending out close to one thousand of these letters a week; more than half the targets were American citizens. FBI agents said they were indispensable investigative tools, the bread and butter of counterterrorism in the United States. But the letters, like warrantless wiretaps, were also a form of breaking and entering. An FBI supervisor could write them without a judge’s order or a prosecutor’s request.
By September 2004, federal judges were starting to find them unconstitutional. The courts struck down the provisions of the Patriot Act that gave the FBI those powers; Congress rewrote the law to preserve them. The Bureau now 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 telephone records—without telling anyone at headquarters. An endless succession of assistant directors, deputies, and special agents in charge did not learn the rules or their roles. Mueller said: “We did not have a management system in place to assure that we were following the law.” He conceded that the Bureau had misused the Patriot Act to obtain intelligence.
The testimony that the 9/11 Commission heard left many of the commissioners thinking that the Bureau should be rebuilt. They seriously considered creating a new domestic intelligence service to supplant the FBI. Mueller fought a three-front battle with the commission, the Congress, and the White House to keep the Bureau from becoming a house divided, with law enforcement on one side and intelligence on the other. The struggle went on every day through the summer and fall of 2004, and into the next year.
The only part of the commission’s report on the FBI that was written into law was an order commanding the creation of “an institutional culture with substantial expertise in, and commitment to, the intelligence mission.” Mueller had been trying to do that for years. His progress was slow and uneven, but he soon achieved his goal of doubling the number of intelligence analysts at the FBI. There were now two thousand of them, and they were no longer assigned to answer phones and empty the trash.
Mueller had confidently reported to the commission that he was making great strides, “turning to the next stage of transforming the Bureau into an intelligence agency.” But the FBI was at least five years away from that goal.
The president had been compelled to create his own intelligence commission after conceding that the weapons of mass destruction in Iraq were a mirage. Federal appeals court judge Laurence Silberman led it. He was Cheney’s choice; the two were of one mind about the Bureau. They had been for thirty years, ever since Silberman was deputy attorney general and Cheney President Ford’s chief of staff. Back then, after Nixon fell, the White House had sent Silberman to search the secret files of J. Edgar Hoover. The judge 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 his agents with reporting privately to him any bits of dirt on figures such as Martin Luther King, or their families. Hoover sometimes used that information for subtle blackmail to ensure his and the Bureau’s power … I think it would be appropriate to introduce all new recruits to the nature of the secret and confidential files of J. Edgar Hoover. And in that connection this country—and the Bureau—would be well served if his name were removed from the Bureau’s building.”
Silberman’s report on the FBI, in the works throughout the winter of 2004 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 December 7, 1941, the United States had built and equipped an army and a navy that had crossed two oceans, the English Channel, and the Rhine; it had already won Germany’s surrender and was two months from vanquishing Japan. The FBI has spent the past three and a half years building the beginnings of an intelligence service.” The report warned that it would take until 2010 to accomplish that task.
The report bore down hard on the FBI’s intelligence directorate, created by Mueller two years before. It concluded that the directorate had great responsibility but no authority. It did not run intelligence investigations or operations. 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 intelligence collection priorities are met,” the report said. “It cannot. We asked whether the directorate directly supervises most of the Bureau’s analysts. It does not.” It did not control the money or the people over whom it appeared to preside. “Can the FBI’s latest effort to build an intelligence capability overcome the resistance that has scuppered past reforms?” the report asked. “The outcome is still in doubt.” These were harsh judgments, all the more 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 Bureau and start anew, building a new domestic intelligence agency from the ground up.
With gritted teeth, Mueller began to institute the biggest changes in the command structure of the Bureau since Hoover’s death. A single National Security Service within the FBI would now rule over intelligence, counterintelligence, and counterterrorism. The change was imposed effective in September 2005. As the judge had predicted, it would take the better part of five years before it showed results.
The war in Iraq was throwing sand into the FBI’s gears. Hundreds of agents had rotated through Iraq, and hundreds more labored at the FBI’s crime lab in Quantico, Virginia, taking part in a battle that seemed to have no end. They analyzed tens of thousands of fingerprints and biometric data from prisoners, looking for leads on al-Qaeda. They worked to capture, analyze, and reverse-engineer tens of thousands of fragments of the improvised explosive devices that were killing American soldiers.
Members of the FBI’s vaunted hostage rescue team, trained in commando tactics, were in high demand in both Iraq and Afghanistan. Some had been through four tours of duty in battle, more than any soldier in the war, by the summer of 2005.
The team was now preparing a military assault on a terrorist who had been on the FBI’s Most Wanted list for more than twenty years.
The Bureau had been after Filiberto Ojeda Ríos ever since the January 1975 bombing of the Fraunces Tavern in New York, one of the first murderous terrorist attacks of the modern age. The Puerto Rican independence movement’s armed forces, the FALN, had taken the credit. The FBI had run COINTELPRO operations against the independence movement throughout the sixties and early seventies; Hoover himself had cited “the increasing boldness” of their political programs and “the courage given to their cause by Castro’s Cuba.”
Ojeda was the FALN’s commander. He had been trained by the Cuban intelligence service from 1961 to 1967, and he had returned to Puerto Rico as a revolutionary. Arrested by an FBI agent in San Juan, he jumped bail and fled to New York, where he worked under the protection of Castro’s intelligence officers at the Cuban mission to the United Nations. By the start of 1974, Ojeda had organized the FALN in New York and Chicago.
The FBI blamed the group for more than 120 terrorist bombings over the next decade; the attacks had killed a total of six people and done millions of dollars of damage. The Bureau got a lucky break on November 1, 1976, when a heroin addict broke into the FALN’s secret hideout in the Westown section of Chicago, looking for something to steal. He found a cache of dynamite and he tried to sell it on the street. Two days later, on November 3, 1976, the Chicago police and the FBI heard about his offer and got a warrant to search the apartment he had burglarized. They found the first working bomb factory ever discovered in a terrorist investigation in the United States. The safe house held explosives, batteries, propane tanks, watches, and a treasure trove of documents. The investigation led to a series of indictments. The FBI had wounded the FALN, but it did not kill the group.
Ojeda fled again to Puerto Rico, from which he oversaw the assassination of a United States Navy sailor in San Juan in 1982 and directed a $7.1 million Wells Fargo bank robbery in Connecticut in 1983. The FBI believed that half the money went to Cuban intelligence.
A new FBI special agent in charge in San Juan, Luis Fraticelli, had created a fifteen-member terrorism squad. Tracking down Ojeda was its top priority. Thirty years had passed since the Fraunces Tavern bombing.
During the summer of 2005, the squad determined that the seventy-two-year-old fugitive was living in a small house up a dirt road outside an isolated hamlet on the western edge of Puerto Rico. Fraticelli asked for the hostage 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 in the wrong location. Their cover was blown quickly. By the time they found Ojeda’s house, a crowd had gathered down the road, chanting “FBI assassins.” Shots were fired—by the FBI and its target—at 4:28 P.M. A standoff ensued. The assault team hunkered down. Rain started falling as night drew near. The FBI’s leaders, monitoring events from headquarters, grew worried.
Willie Hulon—the FBI’s sixth counterterrorism director in four years under Mueller—called his superior, Gary Bald, the FBI’s new national security chief.
“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 immediate attack. In Quantico, the commander of the hostage rescue team wanted to send in fresh troops. In Washington, Hulon wanted to see a written plan of attack. As midnight approached, Bald told the team to stand down. Its members strongly disagreed. Their commander dispatched a new team from Dulles International Airport at 1:00 A.M. on September 24. They entered the small white house, pierced with 111 bullet holes, shortly after noon. They found Ojeda’s body on the floor with a loaded and cocked Browning 9mm handgun by his side. He had been dead since the first exchange of gunfire. No one at headquarters faulted the team that took him down. 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 continuing inability of the commanders of the FBI and their agents in the field to communicate, it was hard to see who could put them on the same wavelength. The ever-changing leadership of the FBI’s counterterrorism and intelligence chiefs made it harder. Most had cashed out for more rewarding jobs as security directors at credit-card companies, casinos, and cruise lines.
Every morning, Mueller read through the daily threat reports that came out of the new National Counterterrorism Center, up to twenty pages a day of captured e-mails, tips from foreign intelligence services, interviews with informants, and reports about suspicious characters from state and local police. On an average day, the FBI’s in-house threat-tracking system, called Guardian, recorded as many as one hundred alerts. The great majority turned 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 would stand up in court and be counted as victories against the enemy. Mueller still needed to make intelligence into a tool for law enforcement.
There was a way. Mueller needed a new general and a new strategy.
He found the commander he had been looking for in Philip Mudd, the prematurely gray and deceptively mild-mannered deputy director of the CIA’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 the CIA who had served as the National Security Council’s director for Persian Gulf and Middle East issues and worked in Kabul with the American ambassador in Afghanistan.
Mudd became the chief of the FBI’s National Security Division on April 27, 2006. Though he had been unraveling secrets all his life, he confessed that the FBI mystified him.
“It took me maybe six to twelve months to understand,” he said. “We’re not about collecting intelligence. We’re about looking at a problem and using our combined intelligence and law-enforcement skills to do something about that problem in a way that provides security for Los Angeles or Chicago or Tuscaloosa. This is a profound difference, in my judgment, between the other intelligence challenges I’ve seen over time.
“This is bigger, harder, and it has, in some ways, greater implications for the security of this country,” he said. “This is on our watch. If we don’t get it right, it’s our bad.”
Mueller and Mudd took a hard look at the correlation of forces in the war on terror in the spring and summer of 2006. The Bush administration was flagging. The attempts by the administration to use spies and soldiers to capture and interrogate suspected terrorists were starting to collapse. Torture tainted testimony against the suspects, making their conviction by American juries next to impossible. And the Supreme Court ruled that the president did not have the authority to create war crimes tribunals at Guantánamo.
Bush had fired his CIA director, and he was about to jettison his defense secretary. His attorney general, Alberto Gonzales, the former White House counsel, was widely regarded as a weak reed. Vice President Cheney’s top national security aide, I. Lewis “Scooter” Libby, had been convicted of perjury and obstruction of justice for lying about a CIA leak investigation; he was the highest-ranking White House official convicted of a felony since the Iran-contra imbroglio. The war in Iraq was going badly. Al-Qaeda was still rampant; its methods were metastasizing; the images from Abu Ghraib became a recruiting poster across the world. After the embarrassing exposure of 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’s telecommunications traffic is routed through the United States, regardless of its origins, the NSA and the FBI could trap an international e-mail stored on a Microsoft server or trace a call switched through an AT&T office without a warrant. Nonetheless, five years of hot pursuit had failed to find a single al-Qaeda suspect in America. Yet the FBI had an ominous sense that they were out there somewhere.
There was another way to smoke them out. What had worked for Hoover against the Ku Klux Klan and the Communist Party of the United States could work for Mueller against the threat of Islamic terrorism. The FBI would seek and arrest potential terrorists with undercover stings. It was a time-honored strategy that criminal investigators understood and intelligence agents savored. It combined secret investigations with the satisfaction of big arrests and blazing headlines. It required two essential elements: a convincing con man as the informant and a credulous suspect as the target. No jury in Los Angeles, Chicago, or Tuscaloosa would accept an argument of entrapment by an accused terrorist handcuffed and shackled by the FBI.
Over the next three years—until the FBI found its first actual al-Qaeda operative in America—the undercover sting became a central strategy of counterterrorism in America. Mueller made it official in a speech on June 23, 2006, announcing the arrests of seven men in a Miami slum who were accused of plotting to blow up the Sears Tower in Chicago, the tallest building in America. Mueller called the men members of a “homegrown terrorist cell … self-recruited, self-trained, and self-executing. They may not have any connection to al-Qaeda or to other terrorist groups. They share ideas and information in the shadows of the Internet. They gain inspiration from radical websites that call for violence. They raise money by committing low-level crimes that do not generate much attention. They answer not to a particular leader, but to an ideology. In short, they operate under the radar.”
The Liberty City Seven, as they were called, were half-bright thugs without the apparent means or the skills to carry out an attack on anything bigger than a liquor store. Their plotting was more aspirational than operational, as the FBI’s deputy director, John Pistole, put it—a phrase that would often be repeated. It took three trials to convict five of the men. But case after case against the homegrown threat followed across the country. An undercover FBI agent in Illinois trailed a twenty-two-year-old thug who traded his stereo speakers for four fake hand grenades; he said he intended to kill shoppers in a mall outside Chicago during Christmas week of 2006. In another investigation, Mueller singled out the work of a former Green Beret in Ohio who had tracked two naturalized Americans from Jordan as they lifted weights, slugged down steroids, and talked about murdering American soldiers in Iraq.
More than half the major cases the FBI brought against accused terrorists from 2007 to 2009 were stings. The Bureau unveiled a spectacular-sounding indictment on May 8, 2007, charging a plot to attack the military base at Fort Dix, New Jersey, with heavy weapons. The ringleaders were three pot-smoking petty criminals in their twenties, all illegal immigrants from Albania, and their brother-in-law, a Palestinian cabdriver. They had taped themselves at a shooting range, shouting “God is great,” and they brought the tape to a video clerk to convert it to a DVD. He called the FBI, which infiltrated the group with an informant, who offered to provide assault rifles and grenades. An even more frightening case emerged on June 3, 2007, when the FBI arrested a sixty-three-year-old suspect, who had once worked at Kennedy Airport in New York, and charged him with leading a plot to blow up aviation fuel tanks and pipelines surrounding the passenger terminals. The informant, a convicted 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 whole country 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 years before. The defendant, born Paul Hall, had changed his name to Hassan Abu-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 jihad forum in London embracing al-Qaeda and disclosing the deployment of ten navy ships to the Gulf. He received a twenty-five-year sentence.
These cases made good stories. The FBI represented them as real-time threats from real-life radicals in the United States. As long as the nation did not suffer an actual attack, most Americans cared little that some of the cases 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 plotters might not be homegrown terrorists but garden-variety lunatics.
The FBI had more than seven hundred million terrorism-related records in its files. The list of suspected terrorists it oversaw held more than 1.1 million names. Finding real threats in the deluge of secret intelligence remained a nightmarish task. The Bureau’s third attempt to create a computer network for its agents was floundering, costing far more and taking far longer than anyone had feared. It remained a work in progress for years to come; only one-third of the FBI’s agents and analysts were connected to the Internet. Mueller had the authority to hire two dozen senior intelligence officers at headquarters. By 2008, he had found only two. Congress continued to flog the FBI’s counterterrorism managers for their failures of foresight and stamina; Mueller had now seen eight of them come and go.
And the FBI’s relentless focus on fighting terrorism had an unforeseen consequence. The investigation and prosecution of white-collar crime plummeted, a boon to the Wall Street plunderings that helped create the greatest economic crisis in America since the 1930s.
Mueller remained in high repute as the Bush administration came to a close. So did Mudd, who stayed on as the director’s senior intelligence aide. With guidance from the secretary of defense, the former director of central intelligence Robert Gates, they began to develop a global counterterrorism strategy that won favor with both parties in Congress and both candidates running for the White House in the fall of 2008. All three would stay on under the next president. All three would shape his strategies.
On April 28, 2009, President Barack Obama came to the Hoover Building for a public celebration of the FBI’s hundredth anniversary. A crowd of clerks and secretaries began to assemble in the central courtyard of the Bureau’s concrete fortress. The FBI’s elite, bearing their gold badges, walked out 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 to Theodore Roosevelt’s attorney general. Today, there are over 30,000 men and women who work for the FBI,” the president began. “So much has changed 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, his voice leveling. “The rule of law—that is the foundation on which America was built. That is the purpose that has always guided our power. And that is why we must always reject as false the choice between our security and our ideals.”
Obama had come of age as a champion of civil liberties and constitutional law. In the Oval Office, he took a harder line than he had proclaimed in 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 credo of jihad. Guided by the imperative of preventing the next attack, he went beyond what his predecessors had done to solve the conundrums of counterterrorism. He was the first president since the end of the Cold War to coordinate America’s military and intelligence powers into lethal forces under clear-cut rules.
Under Obama, the CIA and the Pentagon obliterated hundreds of terrorist suspects, and sometimes civilians as well, with a ceaseless barrage of rockets fired by drones over Afghanistan and Pakistan. While American commandos killed Osama bin Laden and other al-Qaeda leaders, the State Department used muscular diplomacy to win cooperation from many of the nations of Islam, aided by the uprisings of the Arab Spring, led by rebellions against dictators in the name of democracy. To maintain law and order in the war on terror, Obama gave the FBI control over the toughest al-Qaeda captives, the high-value detainees. He entrusted Robert Mueller and his agents with the task of arresting and interrogating terrorists without mangling American laws and liberties.
The FBI was now a part of a growing global network of interwoven national security systems, patched into a web of secret information shared among police and spies throughout America and the world. The Bureau trapped 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 with words and thoughts, not deeds or plots. But it also used superior intelligence work to arrest Najibullah Zazi, an Afghan immigrant allied with al-Qaeda, and to bring him to a federal court in New York, where he pleaded guilty to plotting to plant a bomb in a subway as the tenth anniversary of 9/11 approached. In October 2011, another al-Qaeda-inspired terrorist, Umar Farouk Abdulmutallab, pleaded guilty to trying to destroy a Delta airliner 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 and convicted in American courts under law, without military tribunals or confessions extracted by torture in secret prisons.
On the home front, Americans had become inured to the gaze of closed-circuit cameras, the gloved hands of airport guards, and the phalanx of cops and guardsmen in combat gear. Many willingly surrendered liberties for a promise of security. They might not love Big Brother, but they knew he was part of the family now.
Yet there was still a sign that the rule of constitutional law might govern counterterrorism in the years to come. A new set of guidelines for the FBI’s intelligence investigations emerged on November 7, 2011. It followed from a decade of struggle over how to use the immense powers thrust upon the Bureau in the war on terror, and three years of trying to repair the damage done in the name of national security under the Bush administration.
The FBI’s new rules set specific legal limits on intelligence searches and seizures, wiretaps and bugs, data mining and electronic eavesdropping, the trapping and tracing of e-mails and cell phones. The 460-page manual, made public with significant deletions, looked like something new in the twenty-first century. It looked as if the American government was trying, in good faith, to balance liberty and security.
The FBI, which still has no legal charter from Congress, had been fighting for 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 Bureau thirty-five years earlier, in the wake of Watergate. He had acted in the tradition of Justice Harlan Fiske Stone, the pillar of the law who first appointed J. Edgar Hoover, and who had warned that a secret police was a menace to a free society.
The FBI might now have created the first realistic operating manual for running a secret intelligence service in an open democracy. The new rules said at the outset that “rigorous obedience to constitutional principles and guarantees is more important than the outcome of any single interview, search for evidence, or investigation.” They made it clear that the FBI could not investigate people for “opposing war or foreign policy, protesting government actions, or promoting certain religious beliefs,” or because they were aliens or anarchists or Arab Americans. The unleashing of the unlimited powers of the FBI’s ability to conduct unwarranted searches and seizures and surveillances now required a declaration of war by Congress rather 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 wanted no 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.