Bravehearts Page 12

  Cheney’s blood oath was a more extreme version of the cult of secrecy that had long permeated US military and intelligence circles. John Crane saw the mindset in action the first few times he entered zones of the Pentagon where top secret intelligence operations were under way. Crane himself had all the top clearances necessary, as well as the code words required to open doors and the like. Nevertheless, he was treated like a leper.

  “I was walking around the building, I had my [security] badge on,” he recalled. “Suddenly, the intelligence guys who didn’t recognize me would stand up in their cubicles and shout, ‘Unclean! Unclean!’ And everyone else in the room immediately shut their laptops and refused to talk to me. That’s the cult of intelligence: if you’re not part of the cult, you shouldn’t be there. The first couple of times it happened to me, I was so shocked. I learned that I needed to have my ‘No Escort Required’ badge prominently displayed or there would be misunderstandings.”

  Daniel Ellsberg saw a similar mindset during his years as a high-level Pentagon and White House adviser; it left him convinced that too much secrecy is bad not only for democracy but also for the ability of the president and his top advisers to make well-informed policy. In his memoir, Ellsberg argued that the debacle of Vietnam demonstrated “how the system of secrecy and lying could give [a president] options he would be better off without.” Excessive secrecy made it “harder for the president to resist pressures from the military. Secrecy from the public [also] averted countervailing pressures from that direction.”

  Ellsberg tried to warn Henry Kissinger, when the two men were still on friendly terms, about the siren-like seductions of secrecy. In late 1968, after Nixon had been elected and announced that Kissinger would be his national security adviser, Ellsberg met with Kissinger and alerted him to a challenge that Ellsberg said he wished someone had warned him about beforehand: the dizzying effect of receiving “a whole slew of special clearances … that are higher than top secret.” First, Ellsberg told Kissinger, “you’ll be exhilarated by some of this new information [you will learn via the clearances].” This feeling, Ellsberg continued, “will last for about two weeks.” But soon, he added, as you get used to having all this new information, “you will forget there ever was a time when you didn’t have it, and you’ll be aware only of the fact that you have it now and most others don’t and that all those other people are fools…. [As a result, it will] become very hard for you to learn from anybody who doesn’t have these clearances.”

  “Cheney grew up under Nixon,” Binney observed, referring to Cheney’s beginning as a low-level staffer in Nixon’s White House. “He wanted to have the same kind of insight to his political enemies Nixon got with Nixon’s secret surveillance programs: COINTELPRO was the FBI’s program, CHAOS was the CIA’s and Minaret was NSA’s. Minaret actually spied on Frank Church (the Democratic senator from Idaho who led the congressional investigations in the 1970s that led to restrictions on US intelligence operations). Cheney detested those restrictions, by the way. I estimate that Nixon was only able to spy on a few thousand people. Today, because technology has advanced, the same three agencies are spying on roughly 270 million Americans—that’s the number of people using cell phones, landlines, fixed or mobile computers and credit cards.”

  Although championed and vastly expanded by Cheney, the spying continued under Obama. Some restrictions were added, but they were modest enough that Michael Hayden greeted them with boyish relief. The USA FREEDOM Act Obama signed in 2014 contained two reforms. The first stipulated that the government no longer hold the records of all the phone calls made in the United States; instead, this metadata will be held by the telecommunications companies themselves. (At the Bush-Cheney administration’s insistence, the companies previously had allowed the NSA to tap directly into their data centers.) The second required the NSA to obtain an individual warrant before accessing these records—a return to the status quo pre-Bush-Cheney. “And this is it, after two years?” Hayden exclaimed. “Cool!”

  Keep in mind that it was Obama’s continuation of the Bush-Cheney surveillance that convinced Snowden to blow the whistle in the first place. Snowden did not vote for Obama in 2008—he was a fan of Ron Paul, the libertarian congressman whose son, Senator Rand Paul, pursued the Republican 2016 presidential nomination. But Snowden took note of candidate Obama’s pledges to reform surveillance policy and decided to see if a President Obama would do as promised. When Snowden saw no real improvement—when he instead saw Obama’s Justice Department raid and arrest the NSA 4+1 and persecute Drake in particular—he concluded that he’d been wrong to give Barack Obama the benefit of the doubt. Now, it was time to act.

  “[President Obama] could end mass surveillance tomorrow with a stroke of his pen,” Snowden later said, referring to Obama’s authority to sign an executive order. “If the president of all people is not willing to stand up for our rights, what kind of message does that send to citizens, to children and people around the world about what our values really mean to our government?”

  Double Standards Are Standard

  “I don’t call Snowden a hero, but he did an extremely important public service,” Binney said. “He probably should be indicted for stealing government property, but not under the Espionage Act. The law should be applied equally, though—which means that we should also be trying President Bush, Cheney, Hayden and everyone else who was running these programs. And then try the [equivalent] officials in the Obama administration. If you don’t want to do the rest of them first, then don’t do Snowden.”

  Double standards had been a second motivation for Snowden. No one moment pushed him over the line, he later recalled; it was rather an accumulation of outrages. One particular outrage he cited was watching James Clapper, the director of National Intelligence, tell an absolute lie when testifying to the US Senate about the Presidential Surveillance Program on March 12, 2013. Democrat Ron Wyden of Oregon, who as a member of the Intelligence Committee had learned the outlines of the program, asked Clapper if the government was collecting “any type of data at all on millions or hundreds of millions of Americans.” Clapper replied, “No, sir. Not wittingly.” Clapper told this lie deliberately and with forethought: the day before, Wyden’s staff had sent him the list of questions he would be asked.

  Lying to Congress was a crime, but Clapper was not charged; his sole punishment was public embarrassment after Snowden’s leak revealed his lie. “Baldly lying to the public without repercussion is evidence of a subverted democracy,” Snowden said. “The consent of the governed is not consent if it is not informed.”

  Double standards appeared to be standard for national security crimes: one set of rules and punishments for the big boys, a different set for underlings. Four months before Clapper lied to Congress, the CIA director, General David Petraeus, resigned because of an affair with his biographer, Paula Broadwell. Later, a deeper reason emerged for his resignation: FBI investigators had discovered that Petraeus shared highly classified information—code names for intelligence programs, war plans, names of undercover operatives—with Broadwell. When confronted, Petraeus denied the accusations.

  It was a crime to lie during a federal investigation, which may explain why FBI agents later took the unusual step of telling reporters they were not happy when Petraeus was given what they regarded as too light of a sentence. Under a plea deal, Petraeus pled guilty to a misdemeanor: unauthorized removal and retention of classified information. He received no jail time, only two years’ probation and a $100,000 fine. He apparently did not lose his security clearances, thus enabling him to continue serving on corporate boards and commanding six-figure honoraria for speaking gigs, a handful of which would recover his legal costs.

  Compare that outcome with the ruin visited upon Thomas Drake, who did not reveal an iota of classified information. And consider that most recent national security whistle-blowers have been treated much more like Drake than like Petraeus.

  Take John Kiriakou. This former CIA a
gent had the distinction of being the only US official jailed as a result of the torture program that US forces operated in the post-9/11 era. Countless officials, up to and including President Bush and Vice President Cheney, knew about, approved or carried out torture during the so-called war on terrorism. Torture is a crime under the Geneva Convention, which makes it a crime under the laws of the United States, a signatory to that convention. Yet no US official was charged, much less convicted, for these crimes. This was another case where Barack Obama said one thing as a candidate but did another as president. Candidate Obama was an outspoken critic of torture; once elected, he declined to bring charges, explaining that it was important for the country to “look forward, not backwards.”

  Kiriakou appeared to have been jailed not because he committed torture, but because he told the public about it. As a CIA field officer, he had participated in the capture of Abu Zubaydah, allegedly a top aide of Osama bin Laden. In a 2007 interview with ABC News, Kiriakou said that the CIA had used a torture technique known as a “waterboarding” on Zubaydah. The revelation sparked considerable public discussion, with Bush officials insisting that waterboarding—in which a victim is tied down and water poured down his throat until he begins drowning—did not constitute torture.

  In January 2012, Kiriakou was charged with disclosing classified information to journalists. Like Drake before and Snowden after him, he was represented by Jesselyn Radack, who bargained the charges down. In the end, Kiriakou pled guilty to a single count and was sentenced to thirty months in prison, plus another three months under house arrest. Petraeus—who by this time had resigned but had not yet been accused of handing classified information to his mistress—praised the verdict as “an important victory for our agency … [that demonstrated there are] consequences for those who believe they are above the laws.”

  Hayden, on the other hand, expressed a more beneficent view of Kiriakou, as he had of Drake. Declaring himself “glad that the FBI case [against Drake] collapsed of its own weight,” Hayden told me that “I feel the same thing about John Kiriakou, who I don’t think should have spent two and a half years in jail for what he did. I’d have stripped him of his clearance, and Kiriakou is an idiot, but I would not have put him in jail. That’s a pretty heavy sanction on a guy with a young family. You know, I’m just a soft-hearted guy,” said the man who repeatedly defended use of the torture that Kiriakou exposed.

  For his part, Kiriakou insisted that he was punished for blowing the whistle. “I have maintained from the day of my arrest that my case was never about leaking,” he told the New York Times after his release in February 2015 following nearly two years in prison. “My case was about torture. The CIA never forgave me for talking about torture.”

  Three months after Kiriakou’s release, another former CIA officer, Jeffrey Sterling, was sent to jail after blowing the whistle on a separate case of CIA conduct. Like many whistle-blowers, Sterling began as a true believer. On his first day of work at the CIA, he did not proceed directly from the parking lot into the rear of the building as everyone else did; he walked around to the front entrance so he could first gaze upon the agency’s official seal emblazoned with the words Central Intelligence Agency of the United States. “That’s how much working at the CIA meant to him,” said Norman Solomon, a journalist and activist who championed Sterling’s case.

  Sterling was convicted of passing classified information to the reporter James Risen—not for the New York Times story Risen did (with Eric Lichtblau) about the Bush-Cheney administration’s surveillance program, but for a chapter in his book, State of War. The chapter described a CIA program that involved passing phony nuclear weapons designs to the government of Iran in hopes of derailing Iran’s alleged pursuit of nuclear weapons capability.

  Sterling emphatically denied having leaked information, but freely admitted he had alerted the Senate Intelligence Committee to the grave dangers he felt the Iran program presented—to wit, that it would help, not hinder, an adversary of the United States to acquire nuclear weapons. Like the NSA 4+1 whistle-blowers before him, Sterling went through official channels to blow the whistle on what he considered “a specific and substantial” threat to public safety.

  But prosecutors had the president’s surveillance program at their disposal, and they used it to present circumstantial evidence that Sterling had passed information to Risen. Metadata showed that Sterling and Risen had indeed exchanged phone calls and emails. The metadata did not, however, disclose what they talked about; it could have been the Iran program, it could have been something else entirely. Nevertheless, prosecutors put Sterling’s whistle-blowing to Congress together with the metadata to argue that he was Risen’s source.

  It did not help that Sterling, one of the CIA’s very few African American case officers, had previously accused the agency of racial bias. Sterling sued the CIA in August 2001, alleging that he had been passed over for assignments that led to promotions; it was the first such lawsuit in the agency’s history. A month later, the 9/11 terrorist attacks left Sterling so eager to fight back that he instructed his lawyer to offer to withdraw the suit so he could return to work. Instead the agency fired him, with CIA deputy executive director John Brennan delivering the news to Sterling personally. A court later threw out the lawsuit, explaining that a trial would jeopardize “state secrets.”

  “The moment that they felt there was a leak, every finger pointed to Jeffrey Sterling,” Sterling said in a documentary about his case, The Invisible Man. Although his lawsuit had been dismissed years earlier, prosecutors cited it to buttress their contention that he was a “selfish and vindictive” individual who sought to take revenge against the CIA by leaking to Risen. The New York Times reporter and author, in keeping with journalistic practice, refused to name his sources, asserting that he would go to jail himself before doing so. For Risen’s colleagues in the media, that became the preeminent issue: whether a reporter would face repercussions for doing his job. When it became clear that Risen would not be prosecuted, media interest in the proceedings waned. The jury, which included no African Americans, found Sterling guilty of nine felony counts.

  Jeffrey Sterling was sentenced to forty-two months in prison in May 2015, five weeks after Petraeus received no jail time for passing classified information to his mistress. Sterling’s attorney, Radack, blasted the double standard, telling the Democracy Now broadcast news program, “The top three past CIA directors, including Leon Panetta, including General David Petraeus, including [John] Brennan, have all leaked covert identities and suffered no consequence for it.”

  “Surreal” was the word Sterling and his wife, Holly, repeatedly used to describe this whole experience: first, the accusations against him; then a trial that found him guilty on only circumstantial evidence; and finally the judge’s sentencing that dispatched him to the federal corrections institution in Littleton, Colorado, on June 16, 2015. With help from Norman Solomon and his organization, the Institute for Public Accuracy, Holly Sterling in October 2015 became the first spouse of a jailed CIA agent to speak out publicly; at a news conference in the National Press Building in Washington, she appealed to President Obama to pardon her husband, who she insisted had “done nothing wrong.” Barring such a presidential pardon or other unexpected intervention, Jeffrey Sterling, once a true believer in the CIA and the American way, will remain in prison until December 2018.

  The Goal Is to Demoralize the Whistle-blower

  Meanwhile, the fate of John Crane hung in the balance in more ways than one. On a practical level, there was the future of his job; on a philosophical level, there was the question of whether his faith in the goodness and reliability of the system would be validated.

  As for his job, Crane’s bosses at last forced him out. Crane claimed he was a victim of what he called “perjured testimony” by both Shelley and Halbrooks, and that Halbrooks was motivated by her alleged desire to be promoted from acting Inspector General to official Inspector General. What’s more, in an Al
ice In Wonderland twist, Shelley and Halbrooks, according to Crane, then ruled on their own perjured testimony—making them simultaneously the prosecution, witnesses, and judges in the case.

  Halbrooks put Crane on administrative leave in February 2013, four months before Edward Snowden’s revelations rocked the world and suddenly made whistle-blowing a topic of daily conversation for millions. “Administrative leave” was US government-speak for “forced resignation.” Crane was forbidden to come to the office, and his pay and security clearances were suspended. He was not, however, fired. It was not easy to fire a federal worker in the absence of compelling evidence of incompetence, insubordination, or wrongdoing; federal workers had due process rights most private sector workers lacked. This may explain why some federal whistle-blowers who got retaliated against didn’t lose their jobs outright; they were punished in pettier ways.

  Bogdan Dzakovic, the Federal Aviation Administration official whose darkly comic exploits testing airport security I wrote about in Vanity Fair, was never fired, for instance, despite his bosses’ undisguised antipathy toward him. Instead they put him on the midnight shift at Washington’s Dulles International Airport, where the only thing that relieved his boredom was the occasional telephone call from an individual claiming to be a space alien. The goal of such management tactics, said Devine, was to demoralize the whistle-blower so he or she will quit on their own. Crane said that he got similar treatment: “Lynne said that she could make it so uncomfortable for me that I would want to leave.”

  Is it any surprise that the grandson of the man who faced down Hitler at gunpoint did not surrender to such attacks? That he instead stood his ground and fought back? That he took his adversaries to court and actually expected to be vindicated?

  Almost as if reenacting his grandfather’s showdown with Hitler on the night of the Munich Beer Hall Putsch, Crane in effect told Lynne Halbrooks and Henry Shelley that In this way you will never conquer me. He walked out of the Pentagon and before long made his way to the Government Accountability Project. “I approached GAP because Tom Devine had an outstanding reputation as a whistleblower lawyer and advocate,” recalled Crane, who had first met Devine and other GAP attorneys while running the Pentagon’s whistle-blower unit. Crane had even brokered a meeting between GAP and Halbrooks to try to improve the two camps’ relationship in the wake of the Drake indictment.