Dick Cheney's Triumph

In this era, when you think of ideologues who verge on rejecting politics, take absolutist positions, and operate in a sealed-off environment, do you think of the ideology that gave birth to the Iraq War, torture, classified law, indefinite detention, kill lists, and secret warrantless wiretapping? Do you think of Dick Cheney, David Addington, John Yoo, John Brennan, and James Clapper? I do.

NARRATOR: Caught and restricted by Congress, the domestic spying apparatus went dark for more than 20 years. It was against the law to turn the NSA on Americans.

RYAN LIZZA, The New Yorker: If you were an NSA analyst, this sort of legal regime was drilled into your head to the point where a lot of people said it’s made the rules too restrictive, and it’s hampered the NSA’s ability to detect terrorist plots.

NARRATOR: Some at the agency thought the NSA had been overly cautious and believed the 9/11 attacks could have been stopped.

EDWARD LOOMIS, NSA Cryptologist, 1964-01: I do believe it could have been prevented with revisions to the way we were permitted to operate before 9/11, revisions that I tried to get the general counsel to embrace and wouldn’t — and couldn’t. I tried to get them to make adjustments to how we were operating, how we were permitted to operate, and they wouldn’t do it! I felt this ever since it occurred, that over 3,000 people’s lives were lost. And it’s just a weight that I have been having trouble bearing! It’s— I’m sorry, I— [weeps]

NEWSCASTER: The toughest week for America since Japan bombed Pearl Harbor 60 years ago.

NARRATOR: All over Washington, there was a growing demand to stop the next attack.

ALBERTO GONZALES: We have to remember that, you know, we’d had— we had had terrorists living in this country for a number of months and we didn’t know about it. What else didn’t we know? And so there was a great deal of concern about the fact that— that we not only could not connect the dots, we could not collect the dots.

NARRATOR: At the CIA, director George Tenet was under pressure from the vice president.

JAMES BAMFORD, Author, The Shadow Factory: The director had a meeting with Vice President Cheney and his top aide, David Addington, and he was asked, “What can be done? What can be done that isn’t being done?”

DICK CHENEY, Vice president of the United States: 9/11 made necessary a shift of policy—

BARTON GELLMAN: Cheney says, in effect, to Tenet, “Make me a shopping list. Tell me what you want to do that we’re not letting you do yet.”

NARRATOR: Tenet, whose own agency was designing covert operations against al Qaeda, called General Hayden.

MICHAEL HAYDEN: George calls me and says, “Mike, any more you can do?” I said, “George, no, not within my authorities, not within my current authorities.” And he paused and said, “That’s not actually the question I asked you. Is there anything more you could do?” I said, “I’ll get back to you.”

NARRATOR: Hayden got the message. At NSA headquarters, he spread the word— “Take the gloves off. Bring me an aggressive plan.”

EDWARD LOOMIS, NSA Cryptologist, 1964-01 : And they asked me, “Is there anything that we had that could have prevented 9/11?”

NARRATOR: Loomis told them what he believed was necessary— begin monitoring foreign Internet traffic going through the United States.

ED LOOMIS: The U.S. Internet hubs handle so much of the worldwide Internet traffic. So I said, “Let us allow collection between U.S. and foreign, foreign to U.S. against the terrorism problem.”

NARRATOR: But others in the agency were proposing much more aggressive data collection.

PETER BAKER: What they proposed to do is create a whole new surveillance program without warrants, trapping all sorts of information, taking advantage of the fact that modern communication trunk lines tend to come through the United States.

BARTON GELLMAN: The idea of this program was you’re looking for unknown conspirators, and the way they devised to do that was to look at everybody.

NARRATOR: It was the outline of something Hayden could take to the vice president. He headed to Washington to propose the idea.

NEWSCASTER: —one of the worst days in American history—

NARRATOR: It would be his first meeting in the Oval Office.

NEWSCASTER: —economy as a whole. There was a massive sell-off on Wall Street today.

ANDREW CARD, White House Chief of Staff, 2001-06: Prior to 9/11, I don’t think I knew General Hayden. I probably knew his name. I doubt that the president knew his name.

JAMES BAMFORD: It’s a very big change for the director of NSA to suddenly have all this attention from senior officials in the White House, and so forth. And I’m sure it had a major impact on Hayden.

NARRATOR: The president had been briefed. He put his arm around General Hayden, called him his childhood nickname, “Mikey.”

MICHAEL HAYDEN: I walk in to see the president. It’s the president and the vice president in the room. Almost certainly, Condi was there as the national security adviser. Andy Card would have been there.

BARTON GELLMAN: Cheney suggests the question and George Bush asks it. “What would you like to do that you can’t already do that would help prevent another 9/11?”

NARRATOR: Hayden outlined “the program.” It would gather data on the phone calls and Internet traffic of hundreds of millions of Americans, then search it for suspicious connections. But he was worried about whether it was legal.

MICHAEL HAYDEN: And the first thing he says to me is, “Mike, I understand your concerns, but there are some things we’re going to have to do. And I think I have the authority to authorize you to do things that you’ve outlined.”

BARTON GELLMAN: The president says, “Go. I want you to go develop a program, come back to me. We’ve got the lawyers working on it. But you have my order, we’re going to do this.”

NARRATOR: Hayden left the White House knowing that “the program” was bound to be controversial.

MICHAEL HAYDEN: No president had authorized it prior to this time.

PETER BAKER: And Michael Hayden goes home after briefing the president and the vice president about his ideas for expanding surveillance and takes a walk with his wife.

MICHAEL HAYDEN: And she said, “What’s on your mind? I said, “Well, we’re going to go do something here.” And I didn’t get into any details. “We’re going to do something. One day, it’s going to be public. And when it gets public, it’s going to be very controversial. And the people doing it are going to be swept into this thing.” And she said, “Uh-huh. Is it the right thing to do?” “Yeah, I think so.” She said, “OK, we’ll deal with that when it comes.”

NARRATOR: On October 4th, in a secret signing with Cheney, the president Officially authorized “the program.”

BARTON GELLMAN: That order is written by David Addington, the vice president’s lawyer. It’s not written by the president’s lawyer. And this is not only unusual, but probably unique in the history of major U.S. intelligence operations, is written by the vice president’s lawyer and stored in his own safe.

NARRATOR: Addington worked out of a small office next to the White House in the old Executive Office building.

PETER BAKER: This order is one of the most closely kept secrets of the Bush/Cheney administration for four years. It’s kept so secret that many people involved in national security inside the White House and the government don’t know about it.

NARRATOR: Addington personally hand carried a copy of the secret document out to Fort Meade.

MICHAEL HAYDEN: He said, “I’m coming out. I’ll be there in about 30 minutes”— hand carried. This was very closely guarded that we were doing this. And he comes onto the campus at Fort Meade, up to the top deck, and hands me the order.

NARRATOR: Now General Hayden wanted the sign-off of his top lawyer, Robert Deitz.

ROBERT DEITZ, NSA General Counsel, 1998-06: I think he was concerned and wanted my view of whether this program was, was lawful. I spent a sleepless night pondering the legality of it. This was a very hard call. It was a very hard call.

BARTON GELLMAN: The NSA has a general counsel and about 100 lawyers. And they were told, “The president has signed it, it’s been certified as lawful, and once all the signatures are there, that’s it, we salute, we say, OK, it’s lawful. We’re going to go ahead.”

ROBERT DEITZ: In the intel world, if a president says to you, “I need this in order to keep the American people safe,” you need to try to figure out where that line is constitutionally and march right up to it.

NARRATOR: Two other NSA lawyers would also sign off on the program.

VITO POTENZA, NSA Dep. General Counsel, 1993-06: We came to the conclusion independently, but consistently, that there was no doubt in our mind that it was a legitimate use of the president’s Article 2 authority.

NARRATOR: General Hayden had heard exactly what he needed— Article 2, the president’s authority as commander-in-chief.

MICHAEL HAYDEN: I have my three good friends here, who’ve, you know, been my guardian angels of these things since I became director, saying, “This is good.”

NARRATOR: Now the massive collection of data could begin.

BARTON GELLMAN: Who’s e-mailing whom? Who’s texting whom? Who’s doing Skype calls with whom? They’re collecting a lot of information, a lot of content of phone calls. They’re actually recording the voices— not for all of our calls, but for a lot of U.S. telephone calls. And they were doing this under an authority that had never existed before.