Bravehearts Page 11

  Buoyed by Crane’s office ruling, the NSA 4+1’s whistle-blowing initially appeared to have succeeded: it emboldened Congress to kill Trailblazer.

  Congress had dramatically increased military and intelligence spending in the wake of the 9/11 terror attacks, but it had also put NSA on notice: the agency’s notoriously poor acquisition and bookkeeping practices had to improve or else. After the Senate Armed Services Committee concluded that “insufficient progress” had been made, Congress in 2003 took an extraordinary step: in effect, it took away NSA’s credit card, transferring its spending authority for multimillion dollar programs to the Under Secretary of Defense.

  When Crane’s office endorsed the NSA 4+1’s accusations a year later, it was the last straw. Even members of Congress who traditionally shoveled money at the military industrial complex with few questions asked had grown troubled by Trailblazer’s continuing cost overruns. Hayden was summoned to Capitol Hill, where he had to admit that Trailblazer was “several hundreds of millions of dollars” over budget and years behind schedule. In 2006, Congress shut down the program.

  For the NSA 4+1 and Crane, however, this apparent victory was only the beginning of a dark, twisting saga that would change their lives forever. And because warrantless surveillance continued through other means after Trailblazer was killed, this saga eventually called onto history’s stage a young NSA contractor by the name of Edward Snowden.

  Smelling a Rat in the IG’s Office

  To John Crane, the most striking finding in his staff’s report on the NSA 4+1 didn’t concern constitutional abuses or multibillion dollar cost overruns. Rather, it was that more than one of the whistle-blowers had repeatedly expressed fear that they would face retaliation for speaking out. Federal law expressly protected against retaliation by guaranteeing a whistle-blower’s anonymity. Crane soon found himself fighting for this cornerstone principle of the whistle-blower law in the face of repeated demands from his superiors to violate it.

  The fact that the NSA 4+1 report highlighted a fear of reprisal was “absolutely extraordinary,” said Crane. It told him that the investigators in the case “were making a point”—and that the whistle-blowers’ fears must have been exceptionally well-founded.

  This made further investigation imperative, Crane told me, but he was overruled, he claimed, by Henry Shelley, the IG’s deputy general counsel. According to Crane, Shelley’s refusal was motivated partly by an alleged antipathy to the man who would have done the investigation: Dan Meyer, the director of the IG’s Civilian Reprisal Investigations unit. Meyer, a former Navy officer, was openly gay, which Shelley, an officer in the Naval Reserve, allegedly found repugnant.

  In addition, Meyer had been a whistle-blower after surviving an explosion on the USS Iowa in 1989 that killed forty-seven crewmen. When the Navy’s investigation appeared to blame the explosion on a secret homosexual love affair gone wrong, Meyer was one of the eyewitnesses who questioned the conclusion; a second Navy investigation withdrew the accusation. Shelley allegedly told Crane that he regarded Meyer’s whistle-blowing as an attack on the Navy as an institution and a personal insult to Shelley as a Naval Reserve officer.

  As noted above, Shelley declined to be interviewed for this book. So did Lynne Halbrooks, who allegedly joined with Shelley and clashed with Crane in her roles as the Pentagon’s deputy inspector general and acting inspector general. Therefore the account that follows largely reflects the recollections of Crane, buttressed by the documentary record and my additional interviews with other individuals. I have done my utmost to verify its accuracy and heed Shelley’s request to be “fair to all involved.”

  “For Shelley to refuse to investigate [the NSA whistle-blowers’ fears of retaliation] goes against IG rules and regulations and you can argue that it goes against statute,” said Crane. “You would think that’s exactly the thing we want to investigate—people are concerned about being investigated because they’re talking to us!

  As deputy general counsel, Henry Shelley outranked Crane and wielded decisive power over what the IG’s office did and did not do. “He was the attorney in charge of all whistleblower reprisal cases,” said Crane, “so he could stop any case he wanted…. No reprisal case could be undertaken or findings issued without Henry Shelley signing off on it.”

  Crane lost that battle, and a bigger clash lay ahead. After the New York Times finally published James Risen and Eric Lichtblau’s landmark article on the Bush-Cheney administration’s domestic surveillance, the White House was apoplectic—and determined to find who leaked the information to the Times.

  “I actually told President Bush after the story went out that based upon the inaccuracies in Lichtblau’s stories I suspected that what they were getting was water cooler talk,” Hayden told me. “And most of the water coolers were in the Department of Justice.”

  What did President Bush say in reply?

  “He just shook his head,” Hayden said.

  Inside the Pentagon’s IG office, Shelley allegedly had a different suspicion. Crane said that during a meeting in the IG’s office, Shelley urged telling the Justice Department about the NSA 4+1; after all, their whistle-blower complaint had objected to the very kind of surveillance practices described in the Times. Crane objected strenuously, arguing that informing anyone, much less Justice Department investigators, of a whistle-blower’s name would violate the law’s guarantee of anonymity for whistle-blowers.

  After the formal meeting ended, Shelley and Crane continued their disagreement in the hallway outside the IG’s office, Crane recalled. “I reached into my breast pocket and pulled out my copy of the Inspector General Act,” he said. “I had to carry it around with me because Henry and I argued so much. I was concerned that he was violating the law. Our voices weren’t raised, but the conversation was, I would say, very intense and agitated. Henry said that he was the general counsel and the general counsel was in charge of handling things with the Justice Department and he would do things his way.”

  There the disagreement between Crane and Shelley stalled. Or so it seemed until eighteen months later, when on the morning of July 26, 2007, FBI agents with guns drawn rushed across the yards of Binney, Wiebe, Loomis, and Roark, pounded on their front doors and demanded entry. Binney was toweling off after a shower when agents accosted him in his bathroom; he and his wife suddenly found themselves with guns aimed directly between their eyes, the retired NSA man recalled.

  Smelling a rat, Crane challenged Shelley: had he or someone else in the IG’s office furnished the names of the NSA whistle-blowers to the FBI? The report by Crane’s staff had been highly classified; the version later made public had roughly 90 percent of its contents redacted. Very few people could have known the whistle-blowers’ names, and most of those people would have been inside the IG’s office.

  Shelley refused to discuss the matter, according to Crane.

  The battle escalated. Four months later, it was Drake whose house endured an early morning raid by federal agents as his family looked on in shock. Prosecutors threatened him with life in prison, then offered a plea deal—a shorter sentence if he confessed his crimes—and later a second deal as well. Drake responded, “I refuse to bargain with the truth.”

  In 2009, Justice Department officials—who now answered to a new president and attorney general, Barack Obama and Eric Holder, respectively—threatened Drake’s fellow whistle-blowers with prison terms. As detailed in Risen’s 2014 book, Pay Any Price: Greed, Power and Endless War, agents demanded of Roark that she plead guilty to perjury, a felony, for allegedly lying to them about who had leaked information to the New York Times and Baltimore Sun; they also demanded that she implicate Drake in illegal behavior. She refused.

  Binney decided to fire back—and have fun doing it—after the Justice Department told his lawyer it was preparing to file charges. “I called Tom Drake, knowing that the FBI was tapping his phone, and told him to make sure his lawyer knew that I had evidence that would allow us to charge the governm
ent with malicious prosecution,” Binney told me.

  Just before their houses were raided in 2007, Binney explained, he, Wiebe, Loomis, and Roark met to discuss a business venture. The algorithms and other technical tools that had been developed for the Thin Thread program could also be employed to detect waste, fraud, and abuse within the Medicare system, they believed. Since the NSA didn’t want to deploy Thin Thread, why not use it to save taxpayers money elsewhere while profiting themselves? The malicious prosecution angle arose because the group had invited two other people to the business meeting, but neither was raided or threatened with indictment. “I was pulling the FBI’s chain to get my message to the Justice Department,” Binney said. “Well, what do you know, one month after my phone conversation with Drake, we all received letters of immunity.” (Except Drake, of course, who had not attended the business meeting.)

  Crane now tussled again with his superiors. After Drake was indicted, his lawyers at GAP filed a Freedom of Information Act request, seeking all documents related to the Pentagon IG’s investigation of the NSA 4+1’s whistle-blowing complaint. Part of Crane’s job was to process Freedom of Information Act (FOIA) requests. In this instance, he was ordered not to release any FOIA documents until after Drake’s trial. The order, which obstructed Drake’s pursuit of justice, came from both Shelley and from Halbrooks, who had been named principle deputy inspector general eight months earlier, Crane told me. Crane strongly disagreed but lost this skirmish as well.

  A new battle opened when Crane received a letter concerning “one of the most potentially explosive matters I had encountered in my career at the Department of Defense’s Office of the Inspector General.” In December 2010, GAP went on the offensive, filing a legal complaint that Drake was being retaliated against because of his participation in the NSA 4+1’s whistle-blower action. Many of the crimes alleged against Drake were “based in part, or entirely, on information that Mr. Drake provided to the [Department of Defense] IG” during its investigation of the NSA 4+1’s complaint, GAP’s letter pointed out.

  Crane was at once alarmed and revolted. GAP’s complaint seemed to confirm his suspicion that someone in the IG’s office had fingered Drake to Justice Department investigators. Worse, the unmistakable correspondence between Drake’s indictment and his testimony to Crane’s staff suggested that Drake’s entire testimony, not just his name, had been shared—an utter violation of law. The Whistleblower Protection Act says the government must protect a whistle-blower’s identity unless disclosing the identity is, quote, “‘unavoidable,’” Devine explained. “Our suspicion is that this disclosure was deliberate.”

  Drake’s retaliation complaint demanded investigation, Crane told Halbrooks. Joined by Shelley, Halbrooks rejected Crane’s demand, according to Crane, adding that he wasn’t being a “good team player” and if he didn’t shape up, she would make life difficult for him.

  Lying to a Judge Is of Course a Crime

  Then came an astonishing wrinkle that put the entire IG office in legal hazard. Drake’s trial was drawing near; by law his retaliation complaint had to be answered in some fashion. But that was going to be tricky because, as Shelley informed Crane, the relevant documents had been destroyed. Lower level staff “had fucked up,” Crane said Shelley told him: they had shredded the documents in a routine purge of the IG’s vast stores of confidential material.

  Crane literally could not believe his ears, he recalled. “I told Henry that destruction of documents under such circumstances was, as he knew, a very serious matter and could lead to the inspector general being accused of obstructing a criminal investigation.” Shelley replied, according to Crane, that it didn’t have to be a problem if everyone was a good team player.

  On February 15, 2011, Shelley and Halbrooks sent the judge in the Drake case a letter that repeated the excuse Crane had been given: the requested documents had been destroyed, by mistake, during a routine purge. This routine purge, the letter assured Judge Richard D. Bennett, took place before Drake was indicted.

  “Lynne and Henry had frozen me out by then, so I had no input into their letter to Judge Bennett,” Crane said. Crane would later allege in his own whistle-blower complaint that Halbrooks and Shelley had lied to the judge in Drake’s case. Crane told me, “Lying to a judge in a criminal case is of course a crime.”

  “It’s a felony to lie to a judge in that situation,” clarified Devine, citing 18 US Code 1001, known among the legal fraternity as the “False Statement Statute.” Asked how an experienced, high-level attorney such as Henry Shelley might have dared commit such a transgression, Devine smiled and said, “People who know better can be blinded by their own arrogance. That’s how people get caught—they get sloppy.”

  In the end, the government’s case against Drake collapsed, though not because of Shelley and Halbrook’s alleged obstruction of justice, which at the time was unknown. Rather, other skulduggery was afoot. For example, one count of the indictment alleged that Drake illegally removed classified documents from his office and took them home. But the documents were not classified at the time Drake took them home, so prosecutors apparently leaned on officials at the NSA to classify them retroactively. Judges tend to frown on that kind of thing.

  Prosecutors eventually offered Drake a third, much less onerous plea deal: all criminal charges would be dropped if Drake pleaded guilty to a misdemeanor for improperly storing government documents on his home computer. He accepted the deal.

  When it came time for Judge Bennett to announce a sentence, he condemned the government in no uncertain terms. The judge found it “extraordinary” that the government had barged into Drake’s home, indicted him, but then dropped the case on the eve of trial as if it wasn’t a big deal after all. No American, he added, should have to wait “two and a half years after their home is searched to find out if they’re going to be indicted or not. I find that unconscionable. Unconscionable. It is at the very root of what this country was founded on, against general warrants of the British. It was one of the most fundamental things in the Bill of Rights, that this country was not to be exposed to people knocking on the door with government authority and coming into their homes.”

  “Unclean! Unclean!”

  “We are now becoming a police state,” Diane Roark told the TV news program Frontline in 2014. Referring to the “huge database” of individuals’ communications the NSA was accumulating, Roark warned that this personal information “is not only going to be used for criminal prosecution, it’s going to be used against political enemies. And we are the canaries, the five of us [the NSA 4 +1]. We are the canaries in the coalmine. We never did anything wrong. All we did was oppose this program. And for that, they just ran over us.

  “To be under investigation for six or seven years,” Roark added, was “a massive stress. But it will have all been worth it if the US public gets away from this view, ‘I don’t have anything to hide.’ I cannot understand how people can say such a thing…. If you have any political beliefs at all, it can be used against you by the opposition if they’re in power.”

  “They’re saying, ‘We’re doing this to protect you,’” Binney told me. “I will tell you that that’s exactly what the Nazis said in Special Order 48 in 1933—we’re doing this to protect you. And that’s how they got rid of all of their political opponents.” Special Order 48 existed before Hitler seized power, but it was he who used the law most ruthlessly. After the Reichstag (the German parliament) was set ablaze in 1933, Hitler, who had been named chancellor as part of a power sharing agreement in parliament, said that the fire was the start of a communist revolution. He pressured the German president to invoke Special Order 48, which suspended rights of assembly, habeas corpus, freedom of the press, and other civil liberties. The Nazis then arrested and otherwise neutralized communists and other political opponents. Invoking Special Order 48 enabled Hitler to claim he was acting legally even as he established a brutal dictatorship. The lesson here: those seeking authoritarian powers often inve
nt or exaggerate specters of terror to stampede the public into accepting a suspension of civil liberties.

  “Do you know that the Russians are now copying what we’re doing, under their SORM program?” Binney asked. “NSA learned these techniques from one totalitarian system [East Germany’s Stasi], now the Russians are adopting it from us. Totalitarian states are mimicking us, isn’t that great?” he said, sarcasm dripping from his lips.

  Comparing US government practices to those of totalitarians and Nazis, warning about an emergent “police state”—these are strong statements, so it’s worth remembering who was making them. Binney, Roark, and the other NSA 4+1 whistle-blowers were not a bunch of left-wing peace nuts. They spent their professional lives inside the US intelligence apparatus—devoted, they thought, to protection of the homeland and defense of the Constitution. They were self-described political conservatives, highly educated, respectful of evidence, careful with words. And they were saying, on the basis of personal experience, that the United States government had been taken over by criminals who bent the government’s awesome powers to their own nefarious purposes. They were saying that laws, regulations, and technologies had been put in place, in secret, that threatened to overturn the democratic governance Americans took for granted and shrink their liberties to a vanishing point. And they were saying that something needed to be done about all this before it was too late.

  Binney singled out former Vice President Dick Cheney as the main driving force toward what Binney called “totalitarianism” in America. At NSA, Binney told me, the Stellar Wind mass surveillance program “was called a Cheney blood oath.” The few officials who were “read into” (i.e., cleared to know about) the program’s existence knew that it came from the vice president’s office and there would be hell to pay if they breathed a word. “It’s like in old westerns,” Binney explained, “when the cowboy and the Indian cut their palms, put their blood together and then they were blood brothers forever.”