In December 2005, after sitting on the story for more than a year, the New York Times exposed George W. Bush’s warrantless wiretapping program (which continues under Barack Obama) but kind of dropped the ball shortly after the initial set of articles. Jane Mayer, writing for the New Yorker, goes much deeper in her profile of Thomas Drake, the whistleblower at the National Security Agency (NSA) currently facing charges that he violated the Espionage Act.
If convicted, Drake faces up to 35 years in prison.
Drake, when he was still an NSA employee, became an anonymous source for various congressional committees investigating intelligence failures after 11 September 2001. He disclosed top-secret documents, revealing NSA mistakes including the failure to share critical information with other US intelligence agencies prior to the attacks. Mayer writes that the “NSA has a rule requiring employees to clear any contact with Congress.”
Mayer reports how former NSA director Michael Hayden early on encouraged a congressional staffer to remain quiet about the legality of the warrantless wiretapping program and told his staff that there weren’t privacy safeguards in the program because “We didn’t need them. We had the power.”
Mayer also cites the creator of the software used for the warrantless wiretaps, Bill Binney, as saying that privacy safeguards were initially built into the software but that the NSA modified the software to remove these safeguards, making it easier to surveil everyone promiscuously; “to eavesdrop on the whole world,” Binney told Mayer. Binney’s software was capable of processing information in real-time (or nearly so), mapping relationships between people, and discarding irrelevant information — drastically changing the way the NSA dealt with information overload. But it was an indiscriminate vacuum. It collected everything including domestic communications and foreign communications crossing switches in the US in clear violation of the US Foreign Intelligence Surveillance Act (FISA) forbidding collection of domestic communications without a warrant.
Binney, like many of Mayer’s sources, left the NSA on ethical grounds. “I couldn’t be an accessory to subverting the Constitution,” Binney told Mayer.
Binney told Mayer he “believes that the agency now stores copies of all emails transmitted in America, in case the government wants to retrieve the details later,” citing enormous storage facilities in Texas and Utah. “After 9/11, General Hayden reassured everyone that the NSA didn’t put out dragnets, and that was true. It had no need — it was getting every fish in the sea,” Binney told Mayer.
Binney is careful to draw distinctions between warrantless wiretapping and data-mining for Mayer. As an advocate of small government, Binney worries more about the NSA’s data-mining operations — which are fully automated — than the warrantless wiretaps, which require “trained human operators.”
After he quit the NSA, Binney took his concerns to Diane Roark, a staffer on the US House Permanent Select Committee on Intelligence, one of the NSA’s putative congressional overseeers. Roark’s committee was created in the wake of Watergate, specifically to stop warrantless domestic surveillance by the NSA and Roark was outraged when she learned of the warrantless wiretapping. Roark tells Binney that “very few congressional leaders had been briefed on the program.” Roark maintains that in 2002 she wrote memos on the illegality of the warrantless wiretaps for Representative Porter Goss (R-Florida), chair of her committee and Representative Nancy Pelosi (D-California), the ranking Democrat on the committee. Nothing changed.
In 2002, Roark decided to retire from the NSA and in a meeting with Hayden was asked “to stop agitating against the program. He conceded that the policy would leak at some point, and told her that when it did she could ‘yell and scream’ as much as she wished,” reports Mayer. It’s at this point that Roark asked Hayden why the privacy protections for US citizens had been stripped from Binney’s software. Mayer reports Roark as saying, he “kept not answering. Finally, he mumbled, and looked down, and said, ‘We didn’t need them. We had the power.’ He didn’t even look me in the eye. I was flabbergasted.” Hayden went on to acknowledge that warrants were not being obtained for the domestic surveillance.
Mayer goes on to cite Roark dropping this bomb:
“During the meeting, Roark says, she warned Hayden that no court would uphold the program. Curiously, Hayden responded that he had already been assured by unspecified individuals that he could count on a majority of ‘the nine votes’ — an apparent reference to the US Supreme Court. According to Roark’s notes, Hayden told her that such a vote might even be 7–2 in his favor.”
Roark attempted to contact then-US Supreme Court Chief Justice William H. Rehnquist through a family friend. She received no response. Roark then tried to contact a FISA judge, who referred her to the Department of Justice. That’d be the same Department of Justice that approved the warrantless wiretapping program in question to begin with.
After the Times broke its story, Congressional Democrats were outraged and demanded hearings, a FISA judge resigned, and Mark Klein, a retired AT&T employee described “a secret room in San Francisco where powerful Narus computers appeared to be sorting and copying all of the telecom’s internet traffic — both foreign and domestic” in a sworn statement to the Electronic Frontier Foundation (EFF). Drake began sending “anonymous tips” to Siobhan Gorman, then at the Baltimore Sun. Drake denies ever giving Gorman classified information.
In July 2007, federal agents raided the homes of Binney, Wiebe, and Roark in retaliation for whistleblowing: They had filed a confidential complaint about mismanagement at the NSA with the Pentagon’s Inspector General in September 2002. Four months later, Drake’s home was raided. In both raids, federal agents were looking for the individual(s) who had leaked information to James Risen and Eric Lichtblau at the New York Times. Drake denied being Risen’s and Lichtblau’s source, but acknowledged talking to Gorman at the Baltimore Sun, denying leaking any classified information.
In April 2010, Drake was indicted on dramatically reduced charges. Mayer cites Morton Halperin of the Open Society Institute as saying the reduced charges are more dangerous: “If Drake is convicted, it means the Espionage Law is an Official Secrets Act,” Halperin told Mayer. “Because reporters often retain unauthorized defense documents, Drake’s conviction would establish a legal precedent making it possible to prosecute journalists as spies,” writes Mayer. Mayer also points out that top Bush administration officials “accused of similar misdeeds have not faced such serious charges. John Deutch, the former CIA director, and Alberto Gonzales, the former Attorney General, both faced much less stringent punishment after taking classified documents home without authorization.” And no one is investigating the sources for Bob Woodward’s four most recent books, though they’re filled with classified information. Department of Justice attorney Thomas Tamm outed himself as one of the Times sources in 2008, and he won’t be prosecuted.
According to Mayer, “Few people have a precise knowledge of the size or scope of the NSA’s domestic-surveillance power.” She goes on to cite former Sun engineer Susan Landau as saying that “… in 2003, the government placed equipment capable of copying electronic communications at locations across America. These installations were made, she says, at ‘switching offices’ that not only connect foreign and domestic communications but also handle purely domestic traffic. As a result, she surmises, the US now has the capability to monitor domestic traffic on a huge scale.”
Meanwhile, the only individual facing prosecution is a whistleblower.
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US spooks out of control was originally published by ARTS & FARCES internet on Saturday, 21 May 2011 at 8:20 PM CDT. Copyright © ARTS & FARCES LLC. All rights reserved. | ISSN: 1535-8119 | OCLC: 48219498 | Digital fingerprint: 974a89ee1284e6e92dd256bbfbef3751 (64.237.45.114)