Thomas Drake was one of several sources for a Baltimore Sun article about a $1.2 billion NSA experimental program called “Trailblazer” to sift through electronic communications for national security threats. “My first day on the job was 9/11. And it was shortly after 9/11 that I was exposed to the Pandora’s box of illegality and government wrongdoing on a very significant scale,” Drake says. He alleged that the program was inefficient compared to a rival program called “ThinThread” and also violated Americans’ privacy rights. As a result, he faced 35 years in prison for charges under the Espionage Act, but was not ever actually accused of spying. Instead, he was accused of holding on to classified documents in his basement that he says he did not even know were classified.
In a major embarrassment for the Department of Justice, his case ended last year in a misdemeanor plea deal. Now the former top spokesman for the Justice Department, Matthew Miller, seems to be reversing his stance on the prosecution of Drake, saying the case may have been an “ill-considered choice for prosecution.”
All of this comes amidst the Obama administration’s unprecedented attack on whisteblowers. “It’s a way to create terrible precedent to go after journalists and a backdoor way to create an Official Secrets Act, which we have managed to live without in this country for more than 200 years. And I think it’s being done on the backs of whistleblowers,” says Drake’s attorney, Jesselyn Radack, a former ethics adviser to the Justice Department. She is currently the director of National Security & Human Rights at the Government Accountability Project, the nation’s leading whistleblower organization.
Evoking the Espionage Act of 1917, Obama administration has pressed criminal charges against no fewer than six government employees, more than all previous presidential administrations combined. Their crime? Leaking classified information to reporters.
In a recent exchange with Politico correspondent Josh Gerstein, Miller said the Drake case was legitimate, unlike some others. He wrote, quote, “Drake did seem to be trying to expose actual government waste. I think the outcome of the case probably shows that it was an ill-considered choice for prosecution.”
Miller had previously defended the prosecution of Thomas Drake. He was quoted in the New York Times as saying, quote, “It’s an important principle that people who have access to classified information follow the law and the agreements they have signed to protect that information.” Miller also said, “The indictment was brought on the merits, and nothing else.”
As recently as this month, Matthew Miller of Justice Department had mounted one of the first public defenses of the Obama administration’s unprecedented prosecution of alleged leakers. His piece in The Daily Beast is called “Obama Is Right to Prosecute Leakers Who Are Not the Same as Whistle-Blowers.” In the piece, Miller claims, quote, “Leaks of classified information can endanger American soldiers and intelligence officers and expose sensitive national-security programs to our enemies. Whistle-blowers expose violations of law, abuse of authority, or a substantial and specific threat to public health or safety.”
Thomas Drake talking:
I sit here as a free man. I was charged under the Espionage Act as part of an indictment that was handed down on me in April of 2010. There was five counts under the Espionage Act for retaining—not leaking, retaining—national defense information, although the government alleged that I was doing so for the purpose of disclosure to those unauthorized to receive it. I was also charged with obstruction of justice, as well as making false statements to FBI agents.
At the NSA, I worked there for almost seven years. Yeah, I was actually hired in from the outside. It was a special program that General Hayden had sponsored. There was a lot of pressure from stakeholders, particularly in Congress. The NSA was too insular. It was hiring from within, you know, promoting from within. They needed to bring in fresh blood, stir up the gene pool, as it were. And so, I was—about a dozen of us were hired in from the outside during a six—about a six-month period in 2001 prior to 9/11.
my first day on the job was 9/11. And it was shortly after 9/11 that I was exposed to the Pandora’s box of illegality and government wrongdoing on a very significant scale. So, you had the twin fraud, waste—you know, the twin specters of fraud, waste and abuse being committed on a vast scale through a program called Trailblazer, a multi-billion-dollar program, when in fact there was alternatives that already existed and fulfilled most all the requirements of Trailblazer, even prior to 9/11.
Trailblazer was ostensibly the flagship program that Hayden said, “We’re going to go out to American industry and buy it. We’re not going to make it. We’re not going to take the best of American ingenuity and innovation. We’re just simply going to go to the defense contractors and let them figure out how to meet the demands of the digital age.” The digital age was a significant challenge for NSA. It was having great difficulty not only making sense of the vast streams of data that were pouring in from all over, but also figuring out what was going on. Essentially, what was happening is NSA was going blind, it was going deaf.
ThinThread actually was a Skunk Works program. a very small group of individuals who, during the ’90s, said, “You know what? We’re going to figure out how to deal with the digital age. We’re going to figure out how to make sense of large streams of data. We’re going to figure out how to maintain the fidelity and integrity of what it is that we collect. And we’re going to make sense out of it at the same time.” And they actually solved the heart of that problem. It was a challenged problem for NSA. They solved the heart of it. It was only a several-million-dollars solution, prior to 9/11, and it was ready for operational deployment prior to 9/11. It was rejected by NSA.
The critical thing that I discovered was not just the massive fraud, waste and abuse, but also the fact that NSA had chosen to ignore a 23-year legal regime, which had been established in 1978, called the Foreign Intelligence Surveillance Act, with a Foreign Intelligence Surveillance Court, and which, at NSA, during the time that I was not only at NSA but also in the military flying on RC-135s overseas during the latter part of the Cold War, it was a contract, the one thing you did not do. It was the prime directive of NSA. It was the—the—First Amendment at NSA, which is, you do not spy on Americans without a warrant. I found, much to my horror, that they had tossed out that legal regime, that it was the excuse of 9/11, which I was told was: exigent conditions now prevailed, we essentially can do anything. We opened up Pandora’s box. We’re going to turn the United States of America into the equivalent of a foreign nation for the purpose of a—of dragnet, blanket electronic surveillance.
there was a series of legislation that Jesselyn Radack can—probably best to address the legality of this. But later on, once the fact of warrantless wiretapping came out in the press in the James Risen-Eric Lichtblau article in December of 2005, which launched a major DOJ national security investigation, which I ultimately got caught up—yes, during that whole period, we’re talking a very, very super secret program, which is actually referenced—that program is referenced in James Bamford’s blockbuster article in—is the lead article in Wired Magazine for the month of April. That particular program was—in fact violated, on a vast scale, the Fourth Amendment rights of U.S. citizens.
It was just used as an excuse, that the fair game that NSA had, the legitimate ability of NSA to collect foreign intelligence from overseas, well, now that capability is being used to collect against U.S. citizens and everybody else in the United States of America.
I went specifically to Maureen Baginski with my concerns. She, at the time, was the signals intelligence director, the number three person at NSA. And she had rejected the ThinThread solution out of hand, said they had gone with a different solution, they didn’t need it anymore. And I kept pressing her hard. I said, “We’re violating the law. We cannot do this.” And she said, “If you have a problem with it, take it up with the Office of General Counsel.” I was specifically told by the Office of General Counsel and one of the attorneys, senior attorneys there, named Vito Potenza, that it had all been approved by the White House, NSA was the executive agent, and it was all legal. And I knew in that moment I can no longer remain complicit, and I could not serve as an accomplice, into the subversion of our own Constitution.
I started blowing the whistle within, and I started blowing the whistle with two 9/11 congressional investigations, as well as a multi-year Department of Defense inspector general audit investigation, in which I, as a whistleblower, was an unnamed senior official, along with Diane Roark, Ed Loomis, Kirk Wiebe and Bill Binney.
They launched a formal audit investigation regarding the requirements of ThinThread and Trailblazer.
they also launched an investigation on me. that investigation actually, interestingly enough, was a result of a Department of Justice criminal national security investigation to find the, quote-unquote, “sources” for the New York Times article written by Lichtblau and Risen. And that’s ultimately how I was caught up. During—prior to my indictment, they were convinced that I had something to do with that article, and in fact, I didn’t. And so, I had—did have contact with a reporter from the Baltimore Sun, in which I actually gave unclassified information regarding the fact that there was a legal alternative to the secret program that had been approved by the White House in concert between Hayden and Cheney, a piece of paper, a memo that was written by John Yoo, held by David Addington in a safe in the White House. And so, I ended up—you know, I ended up also talking to that reporter about the significant fraud, waste and abuse, OK, beyond just Trailblazer, because she had written a series of articles, but also the fact that there was this legal alternative, which would not only have provided superior intelligence to the United States of America, but also would have done so completely honoring the Fourth Amendment and fully compliant with FISA.
Jesselyn Radack talking:
all 10 felony counts were dropped, and he ended up pleading guilty to a minor misdemeanor for exceeding the authorized use of a government computer, which is like using Facebook too much while you’re at work. The significance is that he was the fourth person in U.S. history to be charged under the Espionage Act. The first, tellingly, was Daniel Ellsberg. And now there are six people. The most recent to be charged is John Kiriakou. And all of these people are not spies. They’re whistleblowers. And they are being—they’re the people who revealed torture and warrantless wiretapping, some of the biggest scandals that occurred in my generation.
I think it’s a way to create terrible precedent to go after journalists and a backdoor way to create an Official Secrets Act, which we have managed to live without in this country for more than 200 years. And I think it’s being done on the backs of whistleblowers. And it’s also meant to send a very chilling message to government employees not to speak out about fraud, waste, abuse and patent illegality.
Discussion:
Thomas Drake, National Security Agency whistleblower. He’s the winner of the 2011 Ridenhour Prize for Truth-Telling and co-recipient of the Sam Adams Associates for Integrity in Intelligence award.
Jesselyn Radack, a former ethics adviser to the United States Department of Justice. She is currently the director of National Security & Human Rights at the Government Accountability Project, the nation’s leading whistleblower organization. Her new book is called TRAITOR: The Whistleblower and the “American Taliban”.
– source democracynow.org
Part 2:
Thomas Drake talking:
under the Intelligence Community Whistleblower Protection Act, I actually originally had made contact with congressional staffers during the late ’90s, interestingly enough, regarding NSA’s massive fraud, waste and abuse on certain—on contracts. They were in fundamental violation of Federal Acquisition Regulation. So there had already been, in essence, a pre-existing means by which I was informing Congress regarding what was going on at NSA.
In 2001, though, after 9/11 is when I found out that NSA was in abject violation of, you know, the First Commandment at NSA, which was, you do not spy on Americans without a warrant. And that’s, as James Bamford had pointed out earlier in your segment on Democracy Now!, is because of significant abuse during the ’60s and ’70s under the programs that he mentioned, as well as a number of others—COINTELPRO—where they were actually in violation—without even FISA, but they were in violation of the Fourth Amendment rights of Americans. So, political dissidents, journalists who were not liked by administrations, peace activists, antiwar activists were being spied upon on a routine basis by the intelligence agencies, including NSA, within the United States of America. That led to a whole series of hearings. You know, you had the Watergate, of course. You had, basically, in the Nixon administration: president is above the law, whatever the president says is legal. Never would I have imagined that that would have
come full flower post-9/11, and in fact makes the Nixon administration and that whole era look like pikers.
And so, I ended up finding, as I am—because of where I was, I had people coming to me privately with significant concerns about: “What are we doing, Tom, spying on Americans? I thought there was a legal regime that we were supposed to follow. We have a court that we go to in secret, you know, with the probable cause evidence. Yet now we’re just—we’re tossing it overboard, and we’re treating our own country, OK, as the equivalent of a foreign nation for the purpose of dragnet electronic surveillance.” And so, you had that combined with a massive infusion of billions and billions of dollars. Basically, Congress was writing blank checks to NSA. I mean, in fact, I remember being in meetings where they would say, you know, “How big do you want it? And how soon do you want it?” They were just going to write the check. This is even stuff that was well off the program for the record, supplemental funding, significant redistribution of wealth going right into the pockets of many of the defense contractors—the
very thing that Eisenhower had warned us about during his farewell address.
So I became a part of a Department of Defense inspector general audit investigation. I was one of the unnamed—I was the unnamed senior official in a hotline complaint that was given to the DODIG in September 2002, signed by Diane Roark, Ed Loomis, Kirk Wiebe and Bill Binney, pointing out the vast waste and fraud being committed by the program called Trailblazer, which at the time was under Hayden’s direction and had become the flagship program for how NSA was going to meet the demands and the challenges of the digital age.
My life was turned upside down, both personally and professionally (as I blew the whistle on fraud, mismanagement, and the evisceration of the First Amendment, the spying on American citizens). I can’t even describe—I even had, you know, close colleagues and friends who listened to me in horror as to what I went through during the course of the last number of years.
from the point—if you remember, there was this massive, multi-year, multi-million-dollar criminal national security investigation that was launched in late December of 2005 as a result of the Risen and Lichtblau article. And so, they went, with extreme vengeance, looking for whoever leaked or was the source for that article.
James Risen, in particular, is part of the Jeffrey Sterling case. Interestingly enough, the lead prosecutor for that case is the same one that led the prosecution in my case, William Welsh. Well, in terms of my life being turned upside down, when they launched that multi-year, multi-million-dollar investigation, there was concern because that article had caused quite a stir within the intelligence community and, in particular, NSA, and had people within NSA say, “My gosh, what are we doing?” But this investigation, which, as it turns out, involved five full-time prosecutors and 25 full-time agents—I ultimately was caught up in that investigation. One of the great concerns is that because there was a very limited number of people who knew about the program, referenced in that—the name of that program was referenced in James Bamford’s Wired Magazine article.
Called Stellar Wind. Very few people knew about that program. It was only whispered in the halls of NSA. It was super top-secret program. It was one that was not mentioned at all, even in the—within NSA. It was that sensitive. And so, the number of people that were actually read into that program, the number of people that were associated with that program, were quite small. What started happening, though, in the short weeks right after 9/11, and particularly from—for the first week in October, when I actually found out about this program being approved by the White House and NSA becoming the executive agent for the program, and that it all was legal and not to pursue this anymore, I was really warned about not to ask any more questions.
Stellar Wind was this dragnet electronic surveillance program that went—it exponentially grew by leaps and bounds. In fact, when the PATRIOT Act was passed in October in Congress, NSA was already in violation of the PATRIOT Act. So, we’re talking about—I mean, remember, the exclusive means—it’s really critical to note that the exclusive means by which electronic surveillance could take place against U.S. persons, which is resident aliens, U.S. corporations and U.S. citizens—the exclusive means by which you would conduct that activity had to be done under the auspices of FISA. And so—and it had to be with a warrant, although there were certain conditions where you could do hot pursuit and other, but those were time-limited and time-constrained. FISA was the exclusive means.
If you violated FISA, there were criminal sanctions. We’re talking thousands and thousands of dollars and many years—for each incident. What NSA chose to do, in concert with the White House and White House approval, was to simply upend that legal regime, which in itself was a compromise hammered out under the Carter administration based on all the previous abuses that had ensued in the previous two decades, and so tossing out 23 years, under the excuse of 9/11, giving NSA essentially blanket access to all available electronic records both, you know—anywhere they could find it.
What I would hear internally is that “We just need to get the data. We don’t know where the threat is. We don’t know where they may be hiding. There could be secret cells. Hey, and if it means bypassing the rights of Americans, so be it, because what’s most important is security of the country. Who cares about our liberties? They’ll just have to take a back seat for now.” I remember actually saying, “If that’s so, then why don’t we change the law?” There’s a legal means by which you change a law in this country. And that means is through Congress. And if the law wasn’t working before, you can modify the law. And in fact, FISA (Foreign Intelligence Surveillance Act) had been modified five times since 1978.
The Foreign Intelligence Surveillance Act, with a secret court, and there’s also an appeals court, all housed in the Department of Justice. So, I asked that question. I asked that question to the most senior people at NSA. And I was told, “Congress will say no. Congress will say no.” Why would they say no? 9/11 just happened, and Hayden is going on about wanting to make—you know, “We’ve got to make Americans feel safe again,” which was one of his other mantras. And yet, they entered into this secret arrangement, first week in October, a presidential executive order authorizing the NSA to treat the United States of America as the equivalent of a foreign nation for the purpose of electronic surveillance. And I knew when I had that conversation, after Maureen Baginski had told me in writing that they had gone with a different solution, although she did not mention the actual name of the program Stellar Wind
she was the signals intelligence director at the time. She was also my immediate supervisor. She demurred. And when I—you know, I had—that was that moment. That was the moment that I knew that NSA crossed its Rubicon. It was the moment that the surveillance horse was out of the barn, when it was made very clear to me, very—it was explicitly clear to me, by the Office of General Counsel, that this program was authorized by the White House, NSA was the executive agent for this program. It was authorized by the White House, and it was all legal, and do not pursue this any further.
Now, if you follow the legislative trail, and this is where Jesselyn Radack is probably in a better position to answer than I am in terms of the illegal implications, a compliant Congress, because, you know, there’s—this is another dynamic here. We had a very compliant Congress with regards to national security, and, of course, vast streams of money being pumped into the community at the same time. I mean, NSA’s budget was essentially doubled within 12 to 18 months. So, you have a compliant Congress, began after the revelation of the so-called warrantless wiretapping program in that New York Times article, Risen and Lichtblau—you ended up having legislation sponsored by the executive branch and being passed by Congress to essentially make what had been illegal legal. So you had the PATRIOT Act renewal. You had—there was a Protect America Act. You ended up having the FISA Amendments Act in 2008. The immunity was granted to the telecommunity concerns, because the Stellar Wind program fundamentally involved
the most major of our telecommunications companies within the United States.
Senators Wyden as well as Udall—Wyden from Oregon, Udall from Colorado—have been raising questions about the USA PATRIOT Act. They have said Americans would be stunned to know what the government thought the PATRIOT Act was allowed to do. They made their remarks in a letter to Attorney General Eric Holder. They seemed constrained, that they can’t actually say what they know.
Section 215, the secret interpretation—this is my informed interpretation of the secret interpretation—basically grants the government access to all business records, subscriber information, phone records. So any—under the Section 215, the cover of Section 215, gives the government access, for the purposes of national security, blanket access to all those records. So, in essence, those companies are essentially forced, under the rubric and the rules of national security and monitoring and looking for threats, we need you to give us access and/or turn over your records.
Why businesses? Because there’s a tremendous amount of personal information, private information, that is held by businesses. You think about our lives of today in the digital age, you know, you name it. You name your phone records. You name your internet providers. You name all the banks, any business that would hold information about individuals.
Libraries and bookstores. Any and all electronic transactions. The crucial and sinister thing about all this is when you have this very large data center being built in Utah. And that’s been in progress for some time. And one of the things I heard many, many years ago was “We need a place to store it all, Tom. We’re just running out of room.” In fact, one of the things that was—it was kind of funny, is they were just strapping on, you know, hard drives and disk drives wherever they could find them, because they were simply running out of room to store the—it was never a problem—this is what’s interesting. It was never a problem with collecting the data. The problem is the amount of data now being collected. And NSA essentially wanting it all, just so they don’t miss anything, is vast—vastly larger than the amount of data they used to deal with in kind of the Cold War scenario. They were not structured, in terms of operations or the technology, to deal with this type of information. I mean, you’re talking
at the yottabyte level, which, you know, is geek speak, which is orders of magnitude, you know, higher than what you—you hear about megabytes and gigabytes and terabytes. You know, we’re now—you know, petabytes. This goes well beyond that.
Yottabytes and petabytes. It’s basically a way to measure the amount of data, digital data. And this is the data center, one of the largest in the world, that’s being built in Bluffdale, Utah.
But the tech—now what’s happened, the price—you know, it’s gotten down to the point—a terabyte of information, which is an extraordinary—you know, we’re talking a thousand—a thousand gigabytes. Many home computers now, you know, it’s not uncommon to have a 500-gig hard drive or even a multi-terabyte hard drive. You can put a terabyte now on just one portion of a flash drive, one terabyte of information. So you can imagine the kind of scale that’s involved with this data center, what can actually be stored. Now, what can you do with all that data?
as James Bamford mentioned, it sort of becomes NSA’s cloud. Remember, they have all this data there, very high-speed networks that connect it with other centers and other analytic places. They can access that to figure out, you know, and data mine through all that to figure out what’s going on. But it’s a very—but think about what else is possible and what else is actual. If you have that much data on that many people, the ability to be able to target anybody at any time, anywhere, now raises the specter, the Orwellian specter, of what can they do in the assembling information, the vast amounts of information, on any one person or persons.
Jesselyn Radack talking:
Jeffrey Sterling is a former CIA officer who has also been charged under the Espionage Act, allegedly for providing information that formed a chapter in James Risen’s 2006 book, State of War. Now, here we are in 2012, again, a years-long delay, and in this case, they have taken the step that they didn’t in Tom’s, where they are going after the reporter. Twice under Bush, James Risen, one of the reporters who had broken the warrantless wiretapping story, was subpoenaed. And then Bush subpoenaed him for a third time. Interestingly, Risen provided an affidavit saying that he learned, from people who had appeared before the grand jury, that people—that they had—the government had obtained records of his conversations with sources, which is so dangerous. In terms of Sterling himself and what he actually did, what he allegedly revealed was that we gave Iran nuclear Information, but it was a ruse. It had a defect in it. But it turns out, in fact, the defect in the nuclear design information was so obvious that
the Iranians detected it immediately, and we ended up turning over actually legitimate nuclear information. That was a ruse. They were going to give that information, but put in a design flaw so it would be like giving false information. But the design flaw was so obvious that the Iranians detected it, and in the process, we actually ended up turning over legitimate nuclear design information.
Risen wrote about it in 2006. During the Bush years.
And it was part of a program called MERLIN. Now, clearly, as we march off to war with Iran right now, the way we did with Iraq, clearly it’s in the public interest to know if the U.S. accidentally, in a botched program, provided the Iranians with nuclear information. That is something that is legitimate whistleblowing. Whether Sterling calls it whistleblowing or not, it fits the legal definition of whistleblowing. You know, I don’t know if Sterling did this or not. These are allegations. But even if he did what they say he did, it revealed a violation of abuse, waste of money, and a big mistake.
Discussion with Thomas Drake, Jesselyn Radack.
Thomas Drake, National Security Agency whistleblower. He’s the winner of the 2011 Ridenhour Prize for Truth-Telling and co-recipient of the Sam Adams Associates for Integrity in Intelligence award.
Jesselyn Radack, a former ethics adviser to the United States Department of Justice. She is currently the director of National Security & Human Rights at the Government Accountability Project, the nation’s leading whistleblower organization. Her new book is called TRAITOR: The Whistleblower and the “American Taliban”.
– source democracynow.org