More than a Million Names

Mattathias Schwartz

  • BuyPlaying to the Edge: American Intelligence in the Age of Terror by Michael Hayden
    Penguin, 464 pp, £21.99, February 2016, ISBN 978 1 59420 656 6

On the last day of 2003, Macedonian border guards arrested Khaled el-Masri at the Serbian border. He had a suspicious name, and the Macedonians didn’t like the look of his passport. After beating el-Masri, stripping him and searching him with painful and highly invasive thoroughness, the Macedonians turned him over to the CIA, which flew him to the ‘Salt Pit’, a black site in Afghanistan. He told his American captors the same thing he’d told the Macedonians: he was an innocent man, a German citizen on vacation. He made a living selling cars. He had no connections to al-Qaida or any other jihadis. After el-Masri had spent 149 days in captivity, the CIA realised he was telling the truth. The man they had arrested was not Khaled el-Masri the jihadist, he was Khaled el-Masri the used car salesman. The CIA dropped el-Masri in Albania, from where he had to make his own way home to Germany. He was three stone lighter. His apartment was empty. In his absence, his wife and four children had moved back to Lebanon. He was given €14,500 and no apology. One of those who argued in favour of the kidnapping and imprisonment of el-Masri was Alfreda Frances Bikowsky, one of the leaders of ALEC Station, the special CIA unit tasked with hunting Osama bin Laden. ‘She just looked in her crystal ball and it said that he was bad,’ one of her co-workers told Jane Mayer of the New Yorker.

The error was exposed in 2005 by the New York Times. The CIA completed its own review of the case in 2007. It turned out that Bikowsky didn’t have probable cause, or even reasonable suspicion – she had a hunch. ‘Available intelligence information did not provide a sufficient basis to render and detain Khaled el-Masri,’ the agency’s inspector general wrote. He recommended setting up an ‘accountability board’, an internal tribunal, to investigate the handling of the case, a step that could have led to disciplinary measures. The final decision on this fell to Michael Hayden, the CIA director at the time. He chose not to. ‘It was a pretty easy call,’ he writes in Playing to the Edge, his new memoir. He doesn’t describe el-Masri as ‘innocent’, noting his ‘clouded past’, but does admit he was a ‘false positive’. The Macedonians, on the basis of his name, had positively identified el-Masri as a terrorist. This identification turned out to be wrong. Had Hayden disciplined Bikowsky, it would have sent a dangerous message to CIA agents that ‘the most important thing is to avoid false positives … even if it means a few true positives slip through.’ He made the same argument a few years earlier to the Senate Select Committee on Intelligence: ‘With regard to counterterrorism operations in general, and the el-Masri matter in particular … the scale tips decisively in favour of accepting mistakes that overconnect the dots against those that underconnect them.’ El-Masri is not the only innocent person to have suffered when the dots have been overconnected. There’s also Brandon Mayfield, Jamal Tarhuni, Mustafa Elgobi, Abdullah al-Kidd, Adama Bah, Yasir Aladdin Afif and Rahinah Ibrahim, among others.

How many false positives for how much safety? In the canon of Western jurisprudence, it usually takes only a small number of false positives to call the legitimacy of the whole system into question. It is ‘better that ten guilty persons escape than that one innocent suffer’ according to William Blackstone’s famous ratio. For the US Supreme Court Justice Stephen Breyer, the 4 per cent of convicts exonerated after execution are significant enough to justify sparing the other 96 per cent. It was Benjamin Franklin who said it was folly to trade ‘essential liberty’ for ‘a little temporary safety’. According to Hayden, we must also consider the number of innocent people who may be killed in a future terrorist attack. ‘What might be admirable for a court system is unconscionable for an intelligence agency,’ he writes.

Hayden was appointed to lead the National Security Agency in 1999 by Bill Clinton, and stayed on through 9/11 up until 2005, when he became the principal deputy to John Negroponte, the first director of national intelligence. In 2006, George W. Bush appointed him director of the CIA, where he stayed until 2009, when Barack Obama replaced him with Leon Panetta. During Hayden’s ten years at the top, the intelligence establishment assumed many quasi-judicial powers. Domestic surveillance, detention, evidentiary findings and adjudication became part of the remit, as did the killing of US citizens – at least one, Anwar al-Awlaki, with explicit intent. For Hayden, this is all just ‘playing to the edge’. The boundaries of his imaginary football field are the constitutionally-derived limits of the intelligence community’s authority. The threat of terrorism requires that they be pushed to the limit, or even further.

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[*] Hayden’s book mentions ‘an aspect [of Stellarwind] … the details of which remain classified … that swept up US personal data.’ The Privacy and Civil Liberties Oversight Board, an independent agency created at the suggestion of the 9/11 Commission and tasked with evaluating the legality of certain NSA programmes, has held two closed meetings to discuss ‘counterterrorism-related activities governed by Executive Order 12333’. After the April 2013 Boston Marathon bombing, Tim Clemente, a former FBI agent, suggested that the NSA could access the archived content of suspects’ phone calls in the aftermath of an emergency. ‘We certainly have ways … to find out exactly what was said in that conversation’ between one of the bombers and his wife, Clemente said. According to documents obtained by Edward Snowden and reporting by the Intercept, an NSA programme called Mystic used a similar archiving system in the Bahamas. Hayden writes that such a programme would contradict ‘the laws of physics’. In any event, the full scope of Stellarwind remains unknown.

[†] See the July 2009 Joint Inspector Generals’ Report on the President’s Surveillance Programme, pp. 62 and 629. Not all these terrorists were connected to al-Qaida, and not all were violent. The Patriot Act of 2002 lowered the statutory definition of terrorism to include providing medical treatment or ‘expert advice’ to groups designated as terrorists by the State Department.