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Hayden, NSA, and the Road to 9/11

Patrick G. Eddington

etired Gen. Michael Hayden, former director of the NSA and CIA
(and now, a national security analyst at CNN), has recently emerged
as a leading critic of the Trump administration, but not so long
ago, he was widely criticized for his role in the post-9/11
surveillance abuses. With the publication of his memoir, Playing to the Edge: American Intelligence in
the Age of Terror
, Hayden launched his
reputational rehab campaign.

Like most such memoirs by high-level Washington insiders,
Hayden’s tends to be heavy on self-justification and light on
genuine introspection and accountability. Also, when a memoir is
written by someone who spent their professional life in the
classified world of the American Intelligence Community, an
additional caveat is in order: The claims made by the author are
often impossible for the lay reader to verify. This is certainly
the case for Playing to The Edge, an account of
Hayden’s time as director of the NSA, and subsequently, the
CIA.

Fortunately, with respect to at least one episode Hayden
describes, litigation I initiated under the Freedom of Information
Act (FOIA) has produced documentary evidence of Hayden’s role
in the 9/11 intelligence failure and subsequent civil liberties
violations. The consequences of Hayden’s misconduct during
this time continue to be felt today. First, some background.

The War Inside NSA, 1996 to 2001

By the mid-1990s, a group of analysts, cryptographers, and
computer specialists at NSA realized that the growing volume of
digital data on global communications circuits was both a potential
gold mine of information on drug traffickers and terrorist
organizations, as well as a problem for NSA’s largely analog
signals intelligence (SIGINT) collection, processing, and
dissemination systems. As recounted in the documentary A Good
American
, three NSA veterans—Bill Binney, Ed Loomis,
and Kirk Wiebe—set out to solve the problem of handling an
ever-increasing stream of digital data while protecting the 4th
Amendment rights of Americans against warrantless searches and
seizures.

Through their Signals Intelligence Automation Research Center
(SARC), they had, by 1999, developed a working prototype system,
nicknamed THINTHREAD. A senior Republican House Permanent Select
Committee on Intelligence (HPSCI) staffer, Diane Roark, was so
impressed with what Binney, Loomis, and Wiebe had developed, that
she helped steer approximately $3 million to the THINTHREAD project
to further its development. But by April 2000, Roark and the SARC
team had run into the ultimate bureaucratic roadblock for their
plan: Hayden, who had recently been installed as NSA director.

He had his own, preferred solution to the same problem the SARC
team had been trying to solve. As Hayden noted in his memoir:

Our answer was Trailblazer. This much-maligned (not altogether
unfairly) effort was more a venture capital fund than a single
program, with our investing in a variety of initiatives across a
whole host of needs. What we wanted was an architecture that was
common across our mission elements, interoperable, and expandable.
It was about ingesting signals, identifying and sorting them,
storing what was important, and then quickly retrieving data in
response to queries.

It was, of course, a description that fit THINTHREAD
perfectly—except for the collection and storage of terabytes
of digital junk. THINTHREAD’s focus on metadata mining and
link analysis was designed to help analysts pinpoint the truly
important leads to follow while discarding irrelevant data.
Hayden’s concept mirrored that of his successor, Keith
Alexander, who also had a “collect it all” mentality.

In his memoir, Hayden spoke of the need to “engage
industry” (p. 20) in the effort to help NSA conquer the
challenge of sorting through the mind-numbing quantity of digital
data, but even Hayden admitted that “When we went to them for
things nobody had done yet, we found that at best they
weren’t much better or faster than we were” (page
20).

That should’ve been Hayden’s clue that NSA would be
better off pursuing full deployment of THINTHREAD, a proven
capability. But Hayden chose to pursue his industry-centric
approach instead, and he tolerated no opposition or second-guessing
of the decision he’d made.

In April 2000, Hayden’s message to the NSA workforce made it clear that
any NSA employees who went to Congress to suggest a better way for
the NSA to do business would face his wrath. Even so, the
THINTHREAD team pressed on, managing to get their system deployed
to at least one NSA site in a test bed status, working against a
real-world target. Meanwhile, Roark continued to push NSA to make
the program fully operational, but Hayden refused, and just three
weeks before Sept. 11, 2001, further development of THINTHREAD was
terminated in favor of the still hypothetical TRAILBLAZER
program.

DoD IG Investigation vs. Hayden’s
memoir

As Loomis noted in his own account of the THINTHREAD-TRAILBLAZER saga,
within days after the 9/11 attacks, NSA management ordered key
components of THINTHREAD—the system Hayden had
rejected—to be integrated (without the inclusion of 4th
Amendment compliance software) into what would become known as the
STELLAR WIND warrantless surveillance program. Terrified that the
technology they’d originally developed to fight foreign
threats was being turned on the American people, Loomis, Binney,
and Wiebe retired from the NSA at the end of October 2001.

Over the next several months, they would attempt to get the
Congressional Joint Inquiry to listen to their
story, but to no avail. By September 2002, the trio of retired NSA
employees, along with Roark, decided to file a Defense Department
Inspector General (DoD IG) hotline complaint, in which they alleged
waste, fraud, and abuse in the TRAILBLAZER program. Inside NSA,
they still had an ally—a senior executive service manager
named Tom Drake, who had become responsible for the remnants of
THINTHREAD after the SARC team had resigned. Drake became the key
source for the subsequent DoD IG investigation, which resulted in a
scathing, classified report completed in December 2004.

The TRAILBLAZER-THINTHREAD controversy subsequently surfaced in
the press, and I followed the reporting on it while
working as a senior staffer for then-Representative Rush Holt
(D-N.J.), a HPSCI member at the time. Once Holt was appointed to
the National Commission on Research and Development in the
Intelligence Community, I asked for and received copies of the
published DoD IG reports dealing with the THINTHREAD and
TRAILBLAZER programs.

The 2004 report remains the most damning IG report I’ve
ever read, and after Holt announced his departure from Congress in
2014, I decided to continue my own investigation into this episode
as an analyst at the Cato Institute. In March 2015, I filed a FOIA
request seeking not only the original 2004 DoD IG report, but all
other documents relevant to the investigation.

After being stonewalled by DoD and NSA for nearly two years,
Cato retained the services of Loevy and Loevy of Chicago to
prosecute a FOIA lawsuit to help get the documents I sought. In
July 2017, the Pentagon released to me a still heavily redacted
version of the 2004 DoD IG report. But there
are fewer redactions in my copy than there were in the version
provided to the Project on Government Oversight (POGO) in 2011, and it provides the clearest
evidence yet that Hayden’s account of the
THINTHREAD-TRAILBLAZER episode in his memoir is simply not to be
believed.

On The IG Investigation Itself

On page 26 of his memoir, Hayden’s only mention of the IG
investigation is a single sentence: “Thin Thread’s
advocates filed an IG (inspector general) complaint against
Trailblazer in 2002.”

Hayden makes no mention of the efforts he and his staff made to
downplay THINTHREAD to the IG, or the climate of fear that Hayden
and his subordinates created among those who worried TRAILBLAZER
was a programmatic train wreck, and that THINTHREAD could, in fact,
provide NSA with exactly the critical “finding the needle in
the haystack” capability it needed in the digital age.

In its Executive Summary (page ii), the DoD IG report agreed
THINTHREAD was the better solution and should be deployed:

And the DoD IG made it clear that NSA management—meaning
Hayden—had deliberately excluded THINTHREAD as an alternative
to TRAILBLAZER at a clear cost to taxpayers:

On Defying Congress

Hayden’s fury at the SARC team keeping HPSCI staffer Roark in
the loop about their progress was palpable, as he made clear on
page 22 of his book:

The alliance with HPSCI staffer Roark created some unusual
dynamics. I essentially had several of the agency’s technicians
going outside the chain of command to aggressively lobby a
congressional staffer to overturn programmatic and budget decisions
that had gone against them internally. That ran counter to my
military experience—to put it mildly.

But Binney, Loomis, and Wiebe didn’t owe their allegiance to
Hayden—they owed it to the Constitution and the American
people. And to be clear, Roark was the driver behind briefing and
information requests, performing her mandated oversight role, a
fact Hayden clearly resented—to the point that he was willing
to defy her requests, as the IG report noted on page 2:

That defiance of a congressional request went further, as the
DoD IG noted on page 99 of their report:

Hayden didn’t just stiff-arm Roark, he stiff-armed the entire
committee.

On Incompetent Program Management and
Priorities

Hayden makes clear in his memoir (page 20) that he wanted an
orderly approach to the digital traffic problem, even if it meant
taking a lot of time to do it:

Our program office had a logical progression in mind: begin with
a concept definition phase, then move to a technology demonstration
platform to show some initial capability and to identify and reduce
technological risk. Limited production and then phased deployment
would follow.

The DoD IG investigators viewed Hayden’s approach as
ill-considered (p. 4):

In other words, Hayden had learned nothing from his mistake in
sand-bagging THINTHREAD prior to 9/11, and he kept the original,
full program on ice even after the loss of nearly 3,000 American
lives and daily concerns in the months after the terrorist attacks
about possible “sleeper cells” and follow-on
attacks.

On THINTHREAD’s scalability

Hayden argues in his memoir (page 22) that THINTHREAD was not
deployable across all NSA elements:

The best summary I got from my best technical minds was that
aspects of Thin Thread were elegant, but it just wouldn’t
scale. NSA has many weaknesses, but rejecting smart technical
solutions is not one of them.

The DoD IG investigators disagreed, as this response to
Hayden’s team at the time makes clear (p. 106):

On THINTHREAD’s effectiveness

On page 21 of his book, Hayden gives the reader the impression
that THINTHREAD was not that good at actually finding real,
actionable intelligence:

We gave it a try and deployed a prototype to Yakima, a foreign
satellite (FORNSAT) collection site in central Washington State.
Training the system on only one target (among potentially
thousands) took several months, and then it did not perform much
better than a human would have done. There were too many false
positives, indications of something of intelligence value when that
wasn’t really true. A lot of human intervention was required.

An analyst who had actually used THINTHREAD after its initial
prototype deployment in November 2000 had a very different view (p.
16):

The second to last sentence is worth repeating: “The
analyst received intelligence data that he was not able to receive
before using THINTHREAD.” “Not able to
receive” from any other NSA system or program
. Had
THINTHREAD been deployed broadly across NSA and focused on
al-Qaeda, it could have helped prevent the 9/11 attacks, as the
SARC team and Roark have repeatedly claimed.

On THINTHREAD’s legality

Hayden claims in his memoir (page 24) that NSA’s lawyers
viewed THINTHREAD as illegal:

Sometime before 9/11, the Thin Thread advocates approached
NSA’s lawyers. The lawyers told them that no system could
legally do with US data what Thin Thread was designed to do. Thin
Thread was based on the broad collection of metadata that would of
necessity include foreign-to-foreign, foreign-to-US, and
US-to-foreign communications. In other words, lots of US person
data swept up in routine NSA collection.

In fact, as the SARC team noted in A Good American,
THINTHREAD’s operational concept was just the opposite: scan
the traffic for evidence of foreign bad actors communicating with
Americans, segregate and encrypt that traffic, and let the rest go
by. No massive data storage problem, no mass spying on
Americans.

And the account the DoD IG investigators got from NSA’s
Office of General Counsel (page 20) flatly contradicts
Hayden’s memoir:

The “Directive 18” in question is United States Signals Intelligence Directive
18
, which governs NSA’s legal obligations regarding the
acquisition, storage, and dissemination of data on U.S.
persons.

As you can probably imagine, I could cite many other instances
of Hayden’s rewriting of the history of the
THINTHREAD-TRAILBLAZER episode, but if you want as much of the
story as is currently available, I suggest you read the entire
(though still heavily redacted) version of the DoD IG report I obtained in July.

The Story Goes On

What’s remarkable is that Congress was well aware of
Hayden’s misconduct and mismanagement while at NSA, but it
still allowed him to become the head of my former employer, the
CIA. Meanwhile, Roark’s personal example of integrity and
fidelity to congressional oversight were rendered meaningless by
her then-boss, House Intelligence Committee Chairman (and former
CIA operations officer) Porter Goss’s (R-FL) failure to fully
investigate the THINTHREAD-TRAILBLAZER disaster, and by his Senate
colleagues who elected to confirm Hayden to head the CIA by a vote
of 78-15. Hayden definitely got one thing very
right: He knew he could snow House and Senate members and get away
with it.

My FOIA lawsuit is ongoing, and additional document productions
are—hopefully—just a few months away. To date, DoD is
continuing to invoke the NSA Act of 1959 to keep many details of this
saga—especially the amount of money squandered on
TRAILBLAZER—from public view. For me, that’s actually a
key issue in this case—testing the proposition as to whether
NSA, utilizing the 1959 law, can conceal indefinitely waste, fraud,
abuse, or even criminal conduct from public disclosure.

But the larger policy issue for me is laying bare, using a
real-world case study, a prime example of a hugely consequential
congressional oversight failure. The SARC team and Roark continue
to argue that had THINTHREAD been fully deployed by early 2001, the
9/11 attacks could’ve been prevented. Drake asserts in A
Good American
that post-attack testing of THINTHREAD against
NSA’s PINWALE database uncovered not only the attacks
that happened, but ones that didn’t for various reasons.

And the SARC team and Roark maintain that THINTHREAD could have
accomplished NSA’s digital surveillance and early warning
mission without the kinds of constitutional violations seen or
alleged with programs like the PATRIOT Act’s Sec. 215 telephone metadata program or the FISA
Amendments Act Sec. 702 program, the latter currently set to
expire at the end of this month and the subject of multiple
legislative reform proposals.

None of this was examined by either the Congressional Joint
Inquiry or the 9/11 Commission, which means the real history of how
the 9/11 attacks happened has yet to be written.

Also pending are two Office of Special Counsel investigations
into aspects of this episode—one involving Drake, and the
other looking at former Assistant DoD IG John Crane, as I’ve
written previously on this site. I’ll have more
to say on all of this as documents become available or as events
warrant.

Patrick
Eddington
is a Policy Analyst in Homeland Security and Civil
Liberties at the Cato Institute.