Blank Spots on the Map Read online

  On June 16, 2003, the Supreme Court issued its decision on Brown and Loether’s coram nobis petition. Without fanfare or explanation, the Court wrote that “the motion for leave to file a petition for a writ of error coram nobis is denied.”

  From a plane crash in 1947, to the London Fog at Groom Lake, to more contemporary controversies surrounding everything from extraordinary rendition to NSA wiretapping, the state secrets privilege proliferated in tandem with the black world itself. Blank spots on maps begat dark spaces in the law.

  On March 3, 2007, Khaled El-Masri wrote the words “I Am Not a State Secret” on the op-ed page of the Los Angeles Times. El-Masri, a Lebanese-born German citizen, had been kidnapped by the CIA in Skopje, Macedonia, and taken to the agency’s Salt Pit prison on Kabul’s outskirts, where he was subjected to months of incommunicado detention. Arriving back home outside Munich after his long ordeal, no one would believe his story, but when human rights researchers, lawyers, and journalists started following up the details he provided, his story started to look true. Working with the ACLU, the former “ghost detainee” filed a lawsuit entitled El-Masri v. Tenet and looked forward to his day in court.

  It never came.

  “The claims and defenses pertinent to this lawsuit would require the CIA to admit or deny the existence of a clandestine CIA activity,” wrote the lawyers at Alberto Gonzales’s Justice Department, citing the Reynolds and Kasza precedents:

  To avoid the consequences that flow from either admitting or denying the existence of CIA clandestine activities, the United States has intervened in the case and the Director of the Central Intelligence Agency has formally interposed the privilege for secrets of state. As is made clear in the classified in camera ex parte declaration of CIA Director Porter J. Goss, proceeding any further in this matter would create an unacceptable degree of risk that information the revelation of which would damage the national security and international relations of the United States will be disclosed.

  In every case where the black operations and machinations of Dick Cheney’s “dark side” of the war on terror might be subject to juridical review, the state secrets privilege popped up. El-Masri’s case was dismissed; ditto for Maher Arar, another victim of the rendition program. The state secrets privilege was “absolute,” wrote Justice Department lawyers over and over, “including in cases alleging constitutional violations . . .” Government whistleblower lawsuits like Sibel Edmonds’s met the same fate, as did a sixth-grade boy who was investigated by the FBI for corresponding with foreigners for a school project.

  Back in Berkeley, Lee Tien and I continued our conversation about the state secrets privilege and the NSA wiretapping case at a sidewalk café. He seemed far more optimistic about the Electronic Frontier Foundation’s chances than I would have expected. “In Reynolds,” he explained between bites of his sandwich, “the Supreme Court ruled that it was the court’s responsibility to review claims of a state secrets privilege.” That interpretation startled me: It was the opposite conclusion from the one I’d drawn from my own reading of the case. What about Justice Department claims that the privilege is “absolute,” I asked, referring to the language in motions to dismiss so many cases on secrecy grounds.

  Tien stared down at his ham sandwich and shook his head.

  “Am I totally confused?” I asked.

  “No, you’re just making the same mistake that district court judges and DoJ attorneys make all the time,” he said. “Go back and look at the decision; it’s clear that the courts are supposed to review the privilege claims.” Tien was referring to those twisted phrases back in Vinson’s majority opinion:

  The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege was designed to protect . . . too much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect, while a complete abandonment of judicial control would lead to intolerable abuses.

  The passage contradicted itself. In light of the rest of the ruling and the subsequent case history, I assumed that the state secrets privilege was absolute. Focusing on this muddled-sounding passage, Tien saw something different in executive claims to privilege: Vinson had ruled that it was up to the judiciary to decide the merits of state secrets claims. For Tien, Vinson was not arguing for a “complete abandonment of judicial control.” The question for Tien was how often there were cases in which the judges weren’t allowed to see the secrets. “There’s one way of interpreting Reynolds which says that in ninety-nine point nine percent of the cases, the judge doesn’t get to see the secret sauce,” he said. “I think that in ninety-nine point nine percent of the cases, the judges can.” The only real precedent that mattered was the Supreme Court ruling, and Reynolds remained the only high court ruling on the state secrets privilege. In other words, Tien was saying, it was still an open question.

  “Suppose this goes all the way up to the Supreme Court, they decide to hear it, and you win?” I asked.

  “I would die of a heart attack,” laughed Tien. “In all honesty, if the Ninth Circuit affirms the district decision,” he explained, “they can still appeal to the Supreme Court. If we win there, then all that means is that we can go to step two in the process.” It could be years before the case even began in any substantive way. Between now and then, Tien hoped, Congress or a new president could step in, open the files, and tell the truth, making the lawsuit moot.

  “Let’s say this question goes to the Supreme Court and you lose,” I asked. “What would that say?”

  “It would be saying that even when there are constitutional or statutory violations, violations of laws specifically put in place to restrict the executive, even when there’s evidence in the record of unlawful and unconstitutional behavior, they could keep challenges to their actions out of court. . . . That would be a devastating decision. It would send the worst possible message to the executive branch: that they can do what they want as long as they cloak it with the state secrets privilege. . . . They are acting that way already, but they’re still rolling the dice in each of these lower courts. If they were to get a Supreme Court ruling, there isn’t going to be any way around it.”

  11

  Money Behind Mirrored Walls

  Farm Credit Drive, Washington, D.C., Suburbs

  When in D.C., a visit to the Mall is practically obligatory. I was staying near Dulles Airport in Northern Virginia and had taken the train into town from Chantilly for some interviews on K Street. Not knowing exactly how long the ride would take, I arrived early and strolled past the White House, through scurrying swarms of smartly dressed young wannabe politicos, and over to the Mall. It was late spring, a time of year when the first waves of wet heat arrive in town, a prelude to the long, hot, humid summer that the capital is notorious for. If it weren’t for the National Archives and the critical mass of people to talk to, I’d avoid this time and place as much as possible.

  Standing next to the towering stone of the Washington Monument at the heart of the nation’s capital, the iconic white dome of the Capitol building looms to the east, topped with Thomas Crawford’s bronze statue of a robed woman holding a sheathed sword in her right hand and a laurel wreath and shield in her left. To the north, the White House’s Aquia sandstone facade is visible just past the nation’s Christmas tree’s unadorned green column; to the south, the Jefferson Memorial’s rounded architecture recalls the Roman Pantheon. On the shores of the Potomac to the west, on the far side of a long reflecting pool, is the Lincoln Memorial. The steps of its Doric architecture mark the place where Martin Luther King Jr. delivered his “I have a dream” speech in 1963. The Capitol’s layout isn’t an accident. The monuments serve as a form of myth-making, creating a set of historical reference points to sculpt a national story about what it means to be an American, to help forge a national identity in a country largely founded by immigrants. If you want a green card, you h
ave to know who George Washington and Abraham Lincoln were. But the urban layout also serves as a spatial metaphor for the structure of government and the separation of powers the Founding Fathers, determined to leave monarchy back in the old world, sought to build into the new state. The architecture and urban design is in this sense a story about who we are and who we want to be.

  Ask six literature professors how to interpret Hamlet and you’re likely to get six different answers. Some students of the nation’s capital read different meanings out of the city layout; they see secret conspiring and hidden hands behind the nation’s workings. Author David Ovason writes of a veiled cosmological order behind Washington’s urban planning. At sunset on August 10 of each year, he points out, a view from the Capitol down Pennsylvania shows a setting sun briefly eclipsed by a pyramid atop the Old Post Office in the Federal Triangle before reaching the horizon and setting behind the White House. For him, the Masonic symbolism of the sun and pyramid is no coincidence, nor is the statue of Benjamin Franklin below the Post Office holding up his hands in wonder. Moreover, explains Ovason, the first stars to set in the sky after sunset, Spica, Arcturus, and Regulus, outline the constellation Virgo and appear in the night sky where the sun had just been. The triangle they form mirrors the Federal Triangle’s layout in the city below. For Ovason, Washington, D.C.’s urban layout is meant to “celebrate the mystery of Virgo—of the Egyptian Isis, the Grecian Ceres, and the Christian Virgin,” and “this truth—and this truth alone—explains the structure of the city.”

  Perhaps there’s something to this hidden architectural text; perhaps not. The point is that there are many ways to read the landscape. When I look at the landscape of the nation’s capital, I also see something far subtler than the towering monuments and Doric columns. The architecture I’m referring to lies among Washington’s suburbs and outskirts, hidden in plain sight among Burger Kings and Starbucks, primarily in Northern Virginia. I explored this “other” capital in a rented Hyundai from a hotel south of Dulles Airport just off Brookfield Corporate Drive in Chantilly, a collection of suburban suites inhabited by construction crews drawn to town by the region’s rapid growth. Just across the street were the nondescript buildings of the National Reconnaissance Office. On the hotel’s other side was a CIA drop box.

  The NRO’s office complex just on the other side of Highway 28 looks like any other of the collections of blue-mirrored glass buildings that house corporate offices in the area. The NRO’s headquarters is a collection of buildings laid out in a crescent shape, connected by glass-enclosed, elevated walkways. Maybe once its reflective glass was supposed to blend into the office park background like a stealth satellite blending into the blackness of space; in any case the building was supposed to be a secret. The complex’s true function became public in 1994, two years after the space agency’s existence was revealed. Ironically, the eventual reason the $310 million building’s true identity became public was the very secrecy surrounding it.

  Before the NRO’s headquarters was “outed,” the National Reconnaissance Office used one of its contractors, Rockwell International, as a cover story for the complex. When the land was first purchased in 1990, Rockwell described the complex as a corporate park for their own company, pitching the project to the local board of supervisors and asking for a zoning waiver to install sophisticated security measures at the site. The board, welcoming the economic influx from what they were led to believe was a new defense contractor, expedited the approval process. With the permits in place, the NRO hired Collins International Service Corp., a Rockwell subsidiary, to build the new headquarters. Throughout the early 1990s, a blue sign outside the complex read simply ROCKWELL.

  The NRO built the complex in much the same way that it goes about building classified spacecraft: financing the building through their normal intelligence budget instead of presenting a new line item. This, combined with the NRO’s circumvention of normal Pentagon contracting channels, roused the Senate Select Committee on Intelligence’s ire. “We are shocked and dismayed to learn that the facility cost for the new NRO headquarters at Westfields may reach $350 million by completion, nearly double the amount most recently briefed to the committee,” wrote senators Dennis DeConcini and John Warner in a series of secret letters to the agency. “In fact, the total anticipated cost was never effectively disclosed to our committee, either in the annual budget submissions or in related briefings.”

  Across the street from the National Reconnaissance Office, on the eastern side of Highway 28, Chantilly’s local post office is an unremarkable white concrete building complete with glass facade, pale blue trim, and cookie-cutter suburban landscaping. The Stars and Stripes hang from a flagpole; the mailbox at the building’s entrance is painted to look like R2-D2. Inside, a line of people wait for their turn at the teller. A young mother in pink sweatpants stands in line behind a stroller; a thirtysomething man wearing a blue baseball hat opens a P.O. box to retrieve his mail. There’s something strange about the box next to the man with the blue cap, Box 221943. More than a hundred people claim to live there. Moreover, they don’t live anywhere else. This P.O. box, along with countless others scattered throughout Northern Virginia, is part of the CIA’s covert action infrastructure.

  I located the P.O. box by running database searches on names I found on documents related to CIA front companies. Among the almost two hundred names registered to Box 221943 is “Eric Matthew Fain,” whose name also appeared in documents that police in Palma de Mallorca assembled in an investigation into whether the CIA used the Mediterranean island as a stopover point for rendition flights. Eric M. Fain and eleven others flew a Boeing business jet with the tail number N313P on CIA missions through the island. On a January 2004 stopover en route to Afghanistan via Macedonia, Fain and his compatriots ran up an enormous tab at the Gran Meliá Victoria luxury hotel. That March, Fain returned to the hotel on a stopover between Tripoli, Libya, and Örebro, Sweden. He did it again the following month. The only known address of the plane’s pilot, James R. Fairing, was the same cramped space that Eric lived in: the P.O. box in Chantilly. Both of these men now have international arrest warrants out for them; they’re wanted for illegally kidnapping terror suspects. In actuality, however, neither Eric Fain nor James Fairing is wanted at all, because there are no such persons. Fain and Fairing, like most of the other 168 personas registered to P.O. Box 221943, are “sterile identities.” The small mailbox is haunted by a legion of ghosts.

  A sterile identity is a fake identity operatives use on covert actions, not unlike Niels Bohr using the name Nicolas Baker while attached to the Manhattan Project. James Fairing, for example, holds an American passport—supplied by the State Department—a pilot’s license, and maybe even an international driver’s license. With these official documents, Fairing passes through customs at foreign airports, checks into hotels, and establishes his identity overseas. But if a border guard or hotel desk clerk were to attempt to verify this sterile identity they would discover that Fairing has no credit history, no bank loans, has never owned a car, and lacks an employment history. In other words, Fairing has none of the qualities that, in the information age, establish one’s existence in the ordinary geography of our country. Fairing is as close as it gets to being an invisible man. The P.O. box in Chantilly is part of the covert architecture that conceals him.

  This other architecture of the nation’s capital, from secret space industries to above-top-secret covert action forces, extends in all directions from its locus in Northern Virginia. All of the big-five intelligence agencies have their headquarters in the capital’s suburban outskirts. North of D.C., out toward Baltimore, lies the National Security Agency, a looming glass and steel complex of buildings, antennas, barbed wire, and blast walls in the forest of the Maryland suburbs. On the Maryland bank of the Potomac a few miles northwest of D.C. proper sits the National Geospatial-Intelligence Agency, an agency of geographer-spooks tasked with producing and interpreting maps, digesting reconnaissance p
hotos, and delivering condensed “product” to their military and intelligence “customers.” Just across the river on the Virginia side lies the Central Intelligence Agency, whose name remains synonymous with the Langley suburb surrounding it. Further south is the Pentagon and its own intelligence agency, the Defense Intelligence Agency. Those agencies are the monuments of the intelligence community, behemoth organizations occupying so much space they have freeway exits named for them. Every single one of these agencies, moreover, has numerous and far less visible satellite offices and subagencies in its orbit.

  Just a short drive from CIA headquarters is one of the region’s newest “undisclosed locations”: the National Counterterrorism Center, a one-stop hub of interagency counterterrorist work. Driving south on Dolley Madison Boulevard in my rented Hyundai, I imagined CIA officials barreling down this same street to an emergency meeting at the new center. I took a right on Lewins-ville Road, expecting to see the operation on the left side of the street (I’d located the building by comparing AP photos of the president visiting the facility with aerial photos of the McLean area). I quickly found myself on an overpass with Highway 495 below me. I’d gone too far. Turning back to find a place to stop and check the map I’d marked, I turned right on Farm Credit Drive, hoping for a place to stop and get my bearings. But both sides of the tree-lined side street were marked with red paint—no stopping. And then, at the top of an incline was the building I recognized from the photos. No signs. No guards.

  The National Counterterrorism Center’s dry corporate architecture is a testament to the post-9/11 boom in secret intelligence spending, an off-the-map cornerstone of a new “war on terror intelligence complex.” Established by Executive Order 13354 in August 2004, the NCTC descends from the CIA’s old Counterterrorist Center, established in the 1980s. Inside the NCTC, analysts and operatives from various intelligence agencies work side by side in a work environment designed by a Walt Disney Imagineer for maximum interaction. The main working areas have no walls.