The Watchers (11 page)

Amid a throng of reporters, they kept silent as they exited the building. Three and a half years had passed since the day he came home from the White House for the last time. He had been so tired, and glad that at least one part of the saga had ended.

The trial had consumed much of his time since then. He had decided not to testify in his own defense lest he give the prosecution ammunition for its case, which portrayed Poindexter and North as bandits in a conspiracy run amok. He opted, instead, to rely on videotaped testimony by Reagan, hoping to demonstrate that Poindexter had operated under the broad umbrella of White House policy that was endorsed by the president. But many of the essential details of Iran-Contra, and Poindexter's precise role in it, seemed to escape the former president's memory. He failed to persuade the jury.

Did Poindexter wish he had testified? one of the reporters in the crowd shouted. He didn't answer. But Linda turned, looked the questioner in the eye, and replied, “No second thoughts.”

They got into their car and drove home.

The jury foreman later said that “an overwhelming set of facts in support of the prosecution's allegations” left the jury no choice. But Poindexter was unapologetic and defiant. “That was not a jury of my peers,” he would say years later, his tightened voice betraying the bitterness that simmered beneath his placid exterior. “Not one of those people understood the information presented to them.”

It wasn't just innate brilliance that Poindexter thought gave him an edge. It was information. Information was power. It could work for you. It often turned against you. But there was always so much of it, more than most minds could handle.

The Iran-Contra affair had been a jumble of bad information, and it was John Poindexter's undoing. But it was also the catalyst for his rebirth. Rather than retreating into quiet solitude, he would redouble his efforts to change and master the complex interplay of intelligence, power, and technology that he generally summed up as “the system.” He had no idea then just how radically it was about to change.

Clandestine, foreign government, and media reports indicate Bin Ladin since 1997 has wanted to conduct terrorist attacks in the US. . . . Al-Qa'ida members—including some who are US citizens—have resided in or traveled to the US for years, and the group apparently maintains a support structure that could aid attacks.

—Item from the
President's Daily Brief,
August 6, 2001

“Data mining” would potentially access both foreign intelligence information and domestic information regarding U.S. citizens. . . . We need to think carefully how we want to deal with a capability which can gather such information into one cross-referenced super-data base.

 

 

 

 

There was a time when everyone was linked to a lug nut, and the agents of the FBI liked it that way.

It was 1985, and federal agents in New York were running cases against drug dealers, mobsters, and money launderers. They'd managed to take down gangs and expose criminal networks thanks to the bounty of evidence provided by one simple, reliable tool: the wiretap.

Agents had insinuated themselves into the inner workings of their targets by surreptitiously snatching their own words off copper phone lines. Crime fighting had a certain, comforting order owing to the simple engineering of the phone system: Everyone who used it was tied to the ground by a wire. On any given day an agent could stand on a street corner in Manhattan, gaze up at an apartment building, with its neat rows and columns of units stacked atop one another, and know that inside each one there was a telephone tethered by thin copper wire to a single point, sometimes several miles away. In his mind's eye he could have imagined shrinking himself to the size of an electron and traveling over the phone line, down to the bottom of the building, then shooting beneath the streets, until he ended up in the basement of the telephone company's switching station. There the wire emerged, pegged to a rack by a single copper lug nut. Acres of racks lined the walls, each holding rows and columns of lug nuts and their wires, neatly stacked atop one another—the city of New York in analog miniature.

With a warrant in hand an agent could tell the technicians at the phone office, with whom he had become friendly over the years, “Go up on RR326.” The tech would walk to the rack, find the wire, and clamp on a listening device. Instantly, the agent became an invisible interloper.

But there were rules to this eavesdropping. Under federal law the FBI needed to be absolutely certain that the line they were on belonged to the suspected dealer, or launderer, or capo named in the court-approved warrant. Not the guy in the apartment next door. Not someone down the block. This guy. This phone. RR326. Unless an agent wanted to risk a judge tossing his evidence, or perhaps tossing him in a jail cell, then he had to be sure. The phone number must belong to the very same line that snaked back through the subterranean maze of Manhattan, through all those blocks of concrete caverns, back to that apartment building, up through the walls and out of the jack and into the phone that was in the hand and next to the mouth of the FBI's target. It was, by design and necessity, a neat, specific system. And then it all went sideways.

The FBI's friends in the phone company put the bureau on notice: Over the next few years those racks and stacks of wires and lug nuts would be swept into the technological dustbin. The telephone network was going digital. Technicians would no longer stand at a rack; they would sit at a keyboard. In some parts of the country that had already made the change, phone calls were traveling as a stream of 1s and 0s. Thousands of lines commingled in a single computer. When New York went digital the phone techs would no longer be able to tap directly into RR326. In fact, they couldn't even tell for sure where RR326 resided in this new matrix.

Things got worse for the government. People started using cellphones. These wireless devices were inherently harder to tap because they used phone lines differently than their analog counterparts. In 1985, a mere 203,000 Americans were using cellphones. Within a year, the number doubled. Two years later, it climbed to 1.6 million. By the end of the decade, a staggering four million Americans counted themselves as cellphone subscribers. Organized criminals, the FBI's favorite targets, were among them.

Members of the Colombian Cali drug cartel operating in New York figured out how to throw agents off their trail by briefly using a cellphone and then tossing it and switching to a new one. To tap a mobile device the phone company technicians had to install listening equipment on an “electronic port,” the modern version of the copper lug nut. But in most switching stations there were only half a dozen ports available at any one time. The crooks were chucking phones faster than the cops could tap them. Prosecutors and FBI agents found themselves standing in line at the phone company, fighting with one another over whose case should take priority, and threatening to haul phone company employees into court so they could explain to the judge why they hadn't executed a wiretap order promptly.

Electronic surveillance had been such a dependable craft. Now rapidly evolving technology was threatening investigations. The phone companies had no interest in making the government's life easier. By the end of the eighties their annual revenues from cellphone subscriptions were more than $2 billion. The new decade held the promise of more digitization, more mobility. The agents in the New York field office put their bosses in Washington on notice: “If we don't do something, we'll be out of the wiretapping business.”

 

The digital revolution had crept up on the FBI and the intelligence community. Though law enforcement agents and spies were governed by different surveillance rules, they were all tapping the same network. And both sides shared the same basic philosophy about surveillance: The best evidence in a court of law or in an intelligence operation is a person's own words. No surveillance meant no intelligence. No intelligence meant the nation could be taken by surprise.

The National Security Agency, the intelligence community's primary eavesdropper, had perfected the art of clandestine wiretapping, but it had also built a global network of electronic surveillance equipment to snatch signals out of the air. As phone calls and transmissions shot out of radio transponders and bounced off satellites, the NSA could grab them in transit. Much of the NSA's foreign intelligence haul came through aerial capture. But when the world went digital, all those signals went underground. The new telecommunications system was a fiber-optic network of glass tubes, moving information through beams of light. It was out of the NSA's grasp.

The agency had another problem. Encryption technology—the computer algorithms that the NSA's code makers used to protect the nation's secrets— was now available on the open market. Drug kingpins and mob bosses could purchase secure phones, which had long been a luxury reserved for defense secretaries and national security advisers. The technology was getting cheaper and easier to use, and it was becoming ubiquitous. Mike McConnell, who took over as director of the NSA in 1992, could imagine a day when criminals and spies around the world encrypted all of their communications using technology that his agency had helped invent. In this new global telecom enterprise, the NSA risked going deaf.

The cops and the spies had a choice to make. They could control this new revolution, or they could become its victims. They launched a two-front campaign to ensure that whatever the future of communications looked like, it would bend to their needs.

In the summer of 1994 the FBI and the Justice Department put forth a legislative proposal that would require phone companies to build their networks so that they could be tapped immediately with a judge's order. No more waiting in line for scarce digital ports. No computer-induced uncertainty about which phone number was targeted. The government demanded assurances that it could listen in at any time. The companies must not build an untappable system.

Louis Freeh, the FBI director, personally pushed for the new law. A former special agent and federal prosecutor, Freeh had used wiretaps to secure convictions in some of the most complicated organized-crime investigations in history. He showed up unannounced in the offices of reluctant lawmakers, who'd been hearing horror stories from the phone companies about stifled innovation and excessive regulation. Congress also had been pressed by an emerging movement of technolibertarians, whose ranks included some of the very same lawyers who had helped write the Foreign Intelligence Surveillance Act in 1978, passed in the wake of illegal spying on war protesters and political activists. They warned Congress: We have been here before. The government always will try to take more than it needs. (Only a few years earlier, Justice officials had gotten as far as placing language in an anticrime bill that would have allowed the attorney general to set standards for telecommunications equipment, effectively making him the new network's architect in chief. The bill did not pass.)

Freeh was undeterred. He started sitting in on congressional committee markup sessions—an unprecedented move for an FBI director—just so he could stare down recalcitrant members. At the same time, McConnell made his play at the National Security Agency. Acting under a presidential directive from Bill Clinton issued in 1993, the NSA began development of a cutting-edge microcircuit called the “Clipper” chip, which would be used to scramble telephone conversations. The agency wanted to install the chip in U.S. telephones, so that every phone call in America would be converted into a jumble of digital data that only the government could decipher. The “key” necessary to unlock the encryption codes would be in safekeeping with government authorities. McConnell and his colleagues reasoned that if the world was moving toward encrypted communication, then the NSA better try to set the standard, and protect its turf. With the Clipper chip the NSA would be the ultimate code maker and code breaker of the telecom system.

 

Libertarians and privacy activists reacted to these ideas with a mix of outrage and apoplexy. The government was coming at them from two sides—setting standards for the architecture of the network and becoming the traffic cop for everything that moved on it. An atmosphere of hostile skepticism permeated all conversations about the new telecom law and the Clipper chip.

Beginning in August 1994, senior law enforcement officials sat down for meetings in Washington with a coalition of more than four dozen activist groups and technology companies, including the biggest telecom provider of all, AT&T, as well as IBM, Microsoft, and the U.S. Telephone Association, which represented more than 1,200 local phone companies and the so-called Baby Bells, which were created after the government breakup of AT&T in the early eighties. None of these companies wanted to see draconian measures suffocate the spirit of invention. But they also couldn't object to the government's legal and security imperatives. Officials had to be able to monitor communications legally in order to protect the country against all kinds of threats, known and unknown. Somehow the two sides had to compromise.

The meetings featured intense, nitty-gritty debates over the technical aspects of the proposed law. The government wanted guarantees that the telecom system would never mature beyond the reach of its wiretaps. Some companies saw this as heavy-handed regulation, and a number of telecom officials shared the activists' belief that the government was after a permanent backdoor into the phone system. The negotiations helped to dampen the suspicions somewhat, however, and the talks went forward, because no one in the room disagreed with the fundamental premise that the government had the right to wiretap.