Bravehearts Page 10

  But as his mother warned, there were consequences to trying to do the right thing, and in the end his bureaucratic superiors thwarted Crane. To his horror, Crane watched as Drake and the four other NSA whistle-blowers were secretly ratted out to the Justice Department and then had their homes raided at gunpoint by federal agents. Of the five members in this group, which I shall call the NSA 4+1, Drake fared the worst. As described in Part One of this book, he was stripped of his security clearance, indicted, threatened with life in prison, deprived of his federal pension, blackballed in security circles, and reduced to working as a clerk at an Apple store.

  Crane’s testimony, published here for the first time, sheds fresh light not only on Drake’s persecution but also on the much better known whistle-blowing of Edward Snowden. “Crane was our fly on the wall, letting us understand after the fact what really happened to Drake,” said Tom Devine of GAP, which represented both Crane and Drake as well as Snowden. Crane’s account illuminates how a system that in theory is supposed to protect whistle-blowing can in practice do just the opposite, a lesson Snowden took to heart when planning his own disclosures. For Drake, despite following official procedures for blowing the whistle on waste, fraud, or abuse, was ruthlessly punished and his concerns about constitutionally questionable surveillance were disregarded. Snowden therefore chose a different path: “civil disobedience whistle-blowing,” as Devine dubbed it. Instead of approaching his superiors at the NSA or the congressional overseers of the agency, Snowden bypassed a system he concluded was corrupt and passed secret documents to journalists Laura Poitras, Glenn Greenwald, and Ewen MacAskill in June 2013.

  But what actually happened to Drake inside the national security apparatus was more complicated than Snowden or any other outsider realized. Crane’s testimony reveals that Drake in fact had defenders inside the system who insisted that proper procedures be followed—and who faced punishment themselves as a result.

  “Without Thomas Drake,” Snowden has said, “there would have been no Edward Snowden.” But Crane’s story suggests that there is another link in the chain. Had John Crane succeeded in making the Pentagon’s whistle-blowing system function as advertised, Drake might not have become a foreboding example to Snowden of how not to blow the whistle. In other words, had Crane and Drake’s intertwined story ended differently, Snowden might never have chosen civil disobedience whistle-blowing in the first place.

  Crane, a solidly built Virginia resident with flecks of gray in a neatly trimmed chinstrap beard, understood why Snowden made the choice he did but still lamented it. “I think it’s sad that someone finds himself in exile in a foreign country because he felt he couldn’t use the various channels available to him,” he said. “Someone like Snowden should not have felt the need to harm himself just to do the right thing.”

  “In This Way You Will Never Liberate Germany”

  John Crane’s grandfather was a few days shy of turning forty the night Hitler tried to take over Germany the first time. It was November 8, 1923, the night of the “Beer Hall Putsch.” Plotting to overthrow the Weimar Republic, Hitler and some six hundred armed members of his fledgling Nazi party surrounded a beer hall in Munich where the governor of Bavaria, Gustav von Kahr, was addressing a large crowd. The rebels burst into the hall, planning to kidnap von Kahr and march on Berlin. Hitler fired his pistol in the air and shouted, in the frenzied voice that later would hurl Germany and the world into a nightmare of hatred and war, “The national revolution has begun!”

  Crane’s grandfather, Gustav Rudel, was in the beer hall as part of his military duties, Rudel later wrote in an eight-page, single-spaced affidavit that provided a minute-by-minute eyewitness account of the putsch. (Rudel later testified at the trial that sentenced Hitler to five years in prison.) The son of a prominent German general, Rudel had served with distinction in World War I, earning two Iron Crosses. By 1923, he had risen to the rank of captain in the army of the Weimar Republic. In Munich, he served as the chief political aide to General Otto von Lossow, the national army’s highest ranking official in Bavaria; as such, Rudel was the chief liaison between von Lossow and von Kahr and thus privy to the two men’s many dealings with Hitler.

  Suspecting that Hitler and his followers were planning a coup, General Lossow and the head of Bavaria’s state police, Colonel Hans Ritter von Seisser, forced their way into the beer hall to monitor developments. Rudel and Seisser’s bodyguard were standing next to their bosses, listening to von Kahr address the crowd, when the doors to the hall were thrown open and a mass of armed men burst in, Hitler in the lead, while a previously hidden machine gun was unveiled in the upstairs gallery.

  “Hitler, with pistol held high, escorted on right and left by armed men, his tunic stained with beer, stormed through the hall towards the podium,” Rudel wrote in his affidavit. “When he was directly in front of us, police chief von Seisser’s adjutant gripped [but did not draw] his sword. Hitler immediately aimed his pistol at the man’s chest. I shouted, ‘Mr. Hitler, in this way you will never liberate Germany.’ Hitler hesitated, lowered his pistol and pushed his way between us to the podium.”

  In the surrounding chaos, Hitler’s forces tried to force von Kahr, Lossow, and Seisser to join the coup, but the uprising soon fizzled. Foreshadowing the military ineptness he would display as Führer, Hitler left the beer hall to deal with a separate crisis, allowing von Kahr, von Lossow, von Seisser, and their aides to flee the building. Outside, the men sped off to alert the national army and local police. When Hitler’s forces marched on the defense ministry, they were attacked and easily defeated. Hitler escaped but was arrested two days later.

  Rudel and Hitler, however, were not finished with one another, and the years to come posed moral quandaries for Rudel that would be familiar to whistle-blowers of today: how does one balance one’s loyalty to a flawed institution with one’s personal conscience?

  Rudel, a career military man, did not leave the German armed forces after Hitler came to power a decade later, despite what Crane described as his grandfather’s antipathy to the rising despot. Why not? The family history as recounted by Crane offers a forgiving portrayal of Rudel’s actions: his grandfather “remained loyal to the military as an institution,” Crane told me. What’s more, Rudel supposedly “tendered his resignation several times, but it wasn’t accepted.”

  Yet Rudel presumably still could have chosen to walk away—the fact is, he did not. Instead, he rose through the ranks to the exalted position of commander of Germany’s air defenses during the first two years of World War II. He was promoted to four-star general, partly on the strength of having helped to invent the .88 howitzer, an antiaircraft gun regarded as one of the most important innovations in twentieth century warfare. Crane maintained that “Lots of the senior officers were anti-fascist. They saw themselves as a constructive bulwark against Hitler’s insanity.” Yet that insanity could not have flourished without the participation of military men like Rudel, who, whatever their private qualms, continued to follow orders.

  In any case, Hitler apparently never fully trusted Rudel, and the feeling was more than mutual. “As Führer, Hitler called most of his senior military officers by their names,” said Crane. “My grandfather was the only one he didn’t. The other commanders always remarked on it. To Hitler, my grandfather was always, Herr General—Mr. General.” Hitler relieved Rudel of his command in 1942—“when Hitler thought he had the war won,” says Crane. Fearing the worst, Rudel secretly moved himself and his family into a Catholic rectory in the countryside outside Munich to live out the rest of the war.

  Regardless of his grandfather’s morally ambiguous record, it was his courage in standing up to Hitler on the night of the Beer Hall Putsch that would inspire Crane nearly a half-century later when he faced his own moment of truth. Like the flutter of butterfly’s wings can trigger unpredictable effects halfway around the world, so Rudel’s act of courage reverberated across time, fortifying his grandson to persist in a ferocious behind-the-
scenes battler over how the Pentagon should deal with whistle-blowers such as Drake and Snowden.

  “We Were the Guys in White Hats”

  Crane’s father, an American, met his mother while studying in Germany after the war. Three children later (Crane has an older sister and an identical twin brother), the family moved to the States, where his father attended Harvard Law School. Crane grew up in the suburbs of Washington, DC, attending James Madison High School in Virginia, a regular American kid except that he spoke both German and English at home. His father was an intellectual by temperament, a Republican by politics. He worked as an intelligence analyst in the Nixon State Department and later joined the conservative Center for Strategic and International Studies.

  When it came time for Crane to launch his career, the apple didn’t fall far from the tree. He worked in Washington for a nongovernmental organization analyzing military issues and spent three years on Capitol Hill as a press aide to Republican members of Congress. In 1988, he was hired at the Inspector General’s office of the Department of Defense.

  The job seemed a good fit for Crane’s idealism. In response to the Nixon administration’s attempts to politicize the federal workforce, Congress had passed the Inspector General Act of 1978, creating the post of inspector general at twelve federal agencies. By 2016, the number of agencies with an IG, as the post was known in government, had risen to thirty-six. (Some local and state governments as well as private companies also had inspectors general.) The inspector general was a kind of internal judge and police chief, charged with making sure that a given agency was operating according to the law—obeying and enforcing rules and regulations, spending money efficiently and as authorized by Congress.

  So the office of Inspector General was a logical place to house a whistle-blower unit. Beginning with the Whistle-blower Protection Act of 1989, federal employees had been encouraged to file whistle-blower complaints if they witnessed a violation of law, a gross waste of money, a gross abuse of authority, or a “substantial and specific” danger to public health or safety. The law promised protection for those who came forward: whistle-blowers’ identities were to be kept secret, and whistle-blowers could not be demoted, fired, or otherwise punished for speaking out. The bill’s cosponsor, Republican Senator Charles Grassley of Iowa, explained that “Under the current system, the vast majority of employees choose not to disclose the wrongdoing they see. They are afraid of reprisals, and the result is a gross waste of taxpayers’ dollars. Government employers should not be allowed to cover up their misdeeds by creating such a hostile environment.”

  By 2004 Crane had been promoted to assistant inspector general. As such, he oversaw all of the Pentagon’s whistle-blower investigation and protection functions. “In the IG’s office, we were the guys with the white hats,” Crane said. “We did what we did to have transparency encouraged, to let senior leadership know when there were problems that needed to be addressed and to make the larger [Defense Department] organization adhere to the rules and laws passed by Congress.”

  Crane took the sanctity of whistle-blower protection so seriously that he routinely carried around in his breast pocket a copy of the US Declaration of Independence and the Constitution as well as a booklet containing a copy of the 1978 Whistleblower Protection Act. “I had the booklet printed up so employees in the Inspector General’s office could read the Act they were responsible for enforcing,” he told me.

  In December 2004, nine months after Crane began heading the Pentagon’s whistle-blower office, the office issued a classified report on their investigation of the NSA 4+1’s complaint. Fearing retaliation, Drake had requested that he not be named in the report; instead, he was identified as “a senior NSA executive.” The other four whistle-blowers—Binney, Wiebe, Loomis, and Roark—had already retired from federal service and therefore were less concerned about retaliation, though by law their identities too were supposed to be kept confidential.

  The NSA 4+1’s whistle-blowing put them in direct conflict with Michael Hayden, the NSA director, and indirectly challenged the Bush-Cheney administration’s larger approach to surveillance and counterterrorism policy. Following procedure, the NSA 4+1 filed their first whistle-blower complaint with the Inspector General of the NSA. The complaint raised two main points.

  The first: Hayden and NSA’s senior management had backed a new surveillance system to collect and analyze telephone, email, and other electronic communications, code-named Trailblazer, that was grotesquely overpriced. Trailblazer, the whistle-blowers charged, was a $3.8 billion boondoggle, more effective at channeling taxpayer dollars to corporate contractors than at protecting the homeland. Furthermore, they argued, Hayden and his aides had chosen Trailblazer even though an alternative system, code-named Thin Thread, which Binney had developed, had been shown to collect the desired information at a fraction of the cost.

  “It’s all run by money,” Binney, 74, told me, the fury in his voice still palpable more than a decade later. He added, “Hayden said recently that Thin Thread did not work, which was a lie. We had this program running at three separate sites, including one in Germany. But the contractors and Hayden wanted to kill it because it would have removed the justification for their Trailblazer program. The contractors were making $340/hour, which works out to almost $700,000 a year. They were lobbying to get us out of there—Booz Allen, Boeing, all the corporations up and down the National Business Parkway [the highway near NSA headquarters in Fort Meade, Maryland]—because if we used Thin Thread, they wouldn’t get their big paychecks.”

  The second objection: Trailblazer made the United States, paradoxically, less secure. Trailblazer collected so much raw data, the NSA 4+1 argued, that NSA analysts were overwhelmed: they struggled to distinguish the genuinely important from the trivial and ended up missing vital clues (as Drake later charged regarding the San Diego hijackers and the 9/11 attacks, as described in Part One of this book). “What’s really going on here, and NSA is trying to bury it, is that the analysts have too much data and they can’t really tell what’s going on,” Binney told me.

  Joel Brenner, the NSA’s Inspector General from April 2002 until September 2006, ruled against the NSA 4+1’s whistle-blower complaint and defended the propriety of his actions. “My office examined the adequacy of the selection process [for Trailblazer] and did not find it deficient,” Brenner told me. “There were vehement disagreements within the Agency about the merits of the two approaches … but it was not the IG’s role to second-guess a management decision when management had made a reasoned business judgment. The IG doesn’t get to say, ‘Well, General, you may have decided to do it this way, but if I had been in your shoes, I’d have done it differently.’ The decision-maker has to make a record that the law was followed, alternatives were considered, and a reasoned decision was made. The Agency did that.”

  “I truly tire of this issue,” Hayden told me in response to Binney’s accusations. Regarding Thin Thread, he added, “We tried it. It had its performance challenges. And it wouldn’t scale. We did fold elements of it into other modernization programs. NSA has its faults. Rejecting good technical solutions is not one of them…. Please note that [Thin Thread] was NOT the program of record when I arrived [at NSA], I did NOT make it the program of record, and neither did my successor. Hmm. Wonder why?”

  Brenner went out of his way to say that he disagreed with how Drake was later retaliated against. “I don’t approve of what Drake did [by talking to the press], but he was grossly over-prosecuted,” Brenner said. “His infraction should have been dealt with as a misdemeanor or even administratively. Prosecuting him as a spy was unjust…. Decisions like that undermine the credibility of espionage prosecutions when they’re really warranted. They also turn people who disagreed with their government into enemies of their government, which is tragic in the deep sense of the term.”

  After Brenner ruled against their complaint, the NSA 4+1 went up the bureaucratic ladder, filing the same complaint with the Departmen
t of Defense Office of Inspector General. There, Crane and his staff came to almost the exact opposite conclusion Brenner’s office had: they “substantially affirmed” the two claims summarized above, Crane told me. What’s more, they also affirmed a third allegation, one that only took shape during their interviews with the NSA 4+1—and that would leap to the fore of public discussion when Snowden went public in 2013.

  The Trailblazer surveillance program, asserted the NSA 4+1, violated the Fourth Amendment of the US Constitution by collecting Americans’ telephone, email, and Internet communications without first obtaining a warrant from a federal judge. Binney told me, “Yeah, I have a problem with that. It’s criminal. It’s unconstitutional…. That’s why I left there as fast as I could, because I couldn’t be a party to it.” Binney said that his ThinThread program would have avoided this problem, for he had inserted a feature that “scrubbed” the identities of US citizens whose communications were intercepted, thus protecting their privacy (though the NSA could still learn their identities if it convinced a judge to issue a warrant to reveal them).

  “We were concerned about these constitutional issues even before we investigated their [NSA 4+1’s] complaint,” Crane said of his team. “We had received other whistleblower filings that flagged the issue, notably concerning the ‘Terrorism Information Awareness Program,’ which had drawn expressions of concern from Congress as well.”