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  GAP welcomed Crane with open arms, not least because his inside knowledge gave them valuable inside knowledge for the fight to defend Drake. Crane’s affidavits detailing how Halbrooks and Shelley allegedly violated legal standards in dealing with Drake’s whistle-blowing enabled Devine to file a blistering response to the IG’s report. Since Halbrooks and Shelley had allegedly been the chief tormentors of Drake—first by identifying him to Justice Department investigators, later by obstructing justice in his court trial—they had a conflict of interest that obviously disqualified them from “any involvement … [in] the whistleblower reprisal investigation of Mr. Drake,” Devine wrote.

  Crane’s case also had an intrinsic appeal to the whistle-blower advocates at GAP. Crane was not just any whistle-blower: he had run the whistle-blowing unit of the biggest agency in the US government, the Department of Defense. “I was in charge of the DoD hotline for 1.3 million [military] service members and 700,000 civilians, almost two million federal employees in all,” Crane recalled. For such an official to share secrets from the belly of the beast was a treat for Devine, who said, “The more John told me about his experiences trying to fight the good fight at DoD, the more I wanted to work with him.”

  At another level, however, Devine and Clark did not know quite what to make of Crane. Here was a guy who gave every appearance of genuinely believing that whistle-blowers inside the national security apparatus could and should get fair and confidential treatment. Clark and Devine had seen too many examples of the opposite over the years to harbor any such sentiments. They were not jaded; they still fought hard for their clients, but they tended to presume the worst about how a bureaucracy would operate. Their presumptions hardened during the Bush-Cheney years, when aggressive White House rhetoric—“Either you are with us, or you are with the terrorists,” Bush declared days after 9/11—helped create a climate of fear and intimidation throughout the country, especially in Washington. The presidency of Obama, who repudiated his campaign promises about transparency and protecting whistle-blowers in favor of a harsher crackdown on open government, fortified their convictions.

  But Crane, it seemed, never got the memo about the war with terrorism overturning constitutional government in the home of the brave. He still believed that the system was fundamentally sound. Clark and Devine admired his faith in the system even as it baffled them. “John’s the real deal,” said Devine. “I don’t know how he survived all those years inside the Pentagon thinking the way he does, but it’s not a pose. He really believes it.”

  The Third Man Fights Back

  Crane’s counteroffensive began February 9, 2015, when GAP filed a whistle-blower disclosure accusing Halbrooks and Shelley of improper conduct. Accompanying the disclosure were three affidavits from Crane—hundreds of pages detailing the episodes described in this book and much else. Summarizing the case, Devine said, “John Crane’s story demonstrates that anyone whose job is to protect whistle-blowers has a very dangerous job.”

  Astonishingly, it was a job that Crane wanted back. In his mind, the top goal of his legal action was to be reinstated in his old post as the Pentagon’s assistant inspector general in charge of whistle-blowing.

  Devine thought Crane was crazy, or at least naive. “I’m not sure I’ve ever worked with a whistleblower who was more of a Boy Scout than John is,” Devine said. “It’s what makes John the kind of person he is and the kind of whistleblower he is. He truly believes in playing it straight and that the system will work as advertised. As his lawyer, I have to respect that, even as I warn him that the system may just be stringing him along.”

  Crane smiled calmly when hearing all the reasons why his return as the Pentagon’s chief whistle-blower official seems far-fetched. His bosses hated him—why would they ever allow him back? And even if a legal ruling ordered his reinstatement, why would he want to go back to work for people who had shown themselves eager to make his life miserable?

  “I want to give the system every opportunity to work the way it should,” said Crane, seated in a conference room at GAP in the same coat and tie attire expected at the Pentagon. “Tom and I have enough skills so the system should be able to respond. I am in effect testing the system. I believe that the system, if it works properly, will work to my benefit.”

  To Crane, it was a simple matter of right and wrong. It was not he who had broken the law, it was Halbrooks and Shelley; therefore, it was they, not he, who should pay the price. Until his run-ins with them, Crane told me, “I had worked for ten separate agency heads at DOD and never been asked to do something I thought was illegal. I had never been exposed to an individual who was willing to use their office for personal gain. I was shocked.”

  But still, I pressed, why go back to working for individuals who despise you? Is that really how you want to spend your life?

  “Well, Lynne is no longer there,” Crane replied. After she wasn’t promoted to inspector general, Halbrooks left government. In May 2015 she was named a partner at Holland & Knight, a law firm with offices throughout the United States that represented corporate clients, including military contractors. “She’s now representing the companies it was our mandate [at the Pentagon’s IG office] to investigate,” Crane added.

  “But doesn’t that still leave Shelley?” I asked. “You clashed with him just as much, and as general counsel couldn’t he thwart you at every turn if you came back?”

  “If he’s still there,” Crane replied, eyes twinkling.

  A second aim of Crane’s legal action, it seems, was to put enough heat on Shelley to push him out as general counsel. If Crane’s whistle-blower disclosure was validated, it would have the practical effect of putting Shelley under investigation. Federal investigators would begin looking into Crane’s allegations, reading his affidavits, reviewing documents and interviewing witnesses, including Shelley himself. Perhaps investigators would find that Shelley had perfectly legal explanations for his actions. Perhaps they would conclude that Crane was making everything up—striking back at Shelley in return for getting rid of him.

  But the fact of Shelley being investigated would put him, and the Pentagon Inspector General’s office, under a cloud and perhaps lead the secretary of defense or members of Congress to conclude that it was time for fresh blood. “For a general counsel to be under investigation calls into question his activities throughout the time he was general counsel, and that can be used as reason to have him removed,” said Crane. “Nobody wants a general counsel who’s under investigation. It looks terrible.”

  Only an independent investigation could determine where the truth lay, and there Crane’s legal action faced a critical hurdle. GAP had filed his whistle-blower disclosure with the Office of Special Counsel, which would investigate whether Crane had been punished because he properly carried out his professional duties. The OSC is a government-wide agency that adjudicates whistle-blower cases that bubble up throughout the federal bureaucracy, generally cases that individual agencies cannot resolve on their own.

  If the OSC ruled in Crane’s favor, it would start a clock running: the secretary of defense would have sixty days to report back to the OSC and establish a joint plan to undertake a more detailed investigation of Crane’s allegations. “We’re optimistic the OSC will find in John’s favor and his charges will get a real hearing,” said Devine. “That’s always the toughest thing for a whistleblower, to get a real hearing. The OSC asked us to specify precisely which laws we believe were broken.” Grinning, the lawyer added, “Our amended filing had a whole separate Appendix with all the violations.”

  The Office of Special Counsel ruled in Crane’s favor in March 2016, declaring in a letter to Secretary of Defense Ashton Carter that there was a “substantial likelihood” Crane’s charges about Halbrooks and Shelley’s handling of the Thomas Drake case were true. The “substantial likelihood” finding was considerably stronger than an alternative decision the OSC could have made. Had the OSC concluded that there was merely a “reasonable belief”
Crane was right, the Secretary of Defense would have been notified but not required to take any action. Instead, Secretary Carter was now legally obligated to begin a second, more comprehensive investigation of the case within sixty days. Since the Pentagon’s Inspector General Office could not credibly investigate itself, this second investigation would be undertaken by the Department of Justice. Said Devine, “We are very much looking forward to assisting in this new investigation and securing justice both for Drake and Crane.”

  “This Is Something I Have to Do”

  Crane’s was “a long and twisting story,” as he himself described it, and he was still far from victory. If the stories recounted in this book show anything, it is that logic and the law are easily sidelined when government officials confront whistle-blowers who bear unwelcome tidings. Especially in the national security area, double standards are standard, power plays naked, lying ubiquitous. Is it cynical to imagine that even the new Justice Department investigation GAP and Crane had secured would reject or at least deflect Crane’s allegations, making a mockery of his desire to get his old job back?

  Such a result would have to shake Crane’s faith that in the end the system works properly, would it not? As a practical matter, he could still file a whistle-blower retaliation complaint, and Devine said Crane would do so. Nevertheless, the military justice system would have failed him. Growing up in a military family, he had been taught that one must do the right thing and trust that justice would win out. Crane had gone on to stake his professional career on this faith, to the point that he ended up being driven out of a well-paying, rewarding job he loved. Would all this now be repudiated?

  Crane and Devine respected each other professionally and seemed to have a personal fondness as well, but philosophically they held sharply different views on the nature of the beast confronting them. Crane saw the problem of official wrongdoing primarily as a function of individual virtue or vice. Asked what lessons the American people should draw from his experiences, he replied, “Congress writes and passes the laws of the land, but they are implemented by human beings. And you have to be careful about the human beings you put in charge, because they can subvert all the best intentions of the Congress and the executive branch.”

  Devine saw the problem as systemic, rooted in power relations and the clash of institutional interests. “Whether it is a government agency or a private corporation, institutions respond to whistle-blowers with the organizational equivalent of animal instinct,” he told me. “They strike back. And the scope and intensity of their retaliation is directly related to the degree of threat that the whistle-blower is perceived to pose. The more significant a whistle-blower’s disclosures, the greater the perceived need to take out the threat.”

  In that light, John Crane posed almost as big a threat as could be imagined, for his revelations called into question the very legitimacy of the whistle-blower protection system. After all, he had helped administer that system; he had championed its necessity; he had sought to protect it—and its clients, the whistle-blowers—from political interference. If he was now saying, under oath and penalty of perjury, that the system had been perverted, that its clients were being betrayed and punished rather than honored and protected, what did that say about the entire enterprise?

  “It’s a bit like a priest exposing the darkest secrets of the Catholic Church,” I suggested, “your coming forward in this way. Isn’t that what makes your case so threatening?”

  “Absolutely,” said Crane. “Maybe more like a bishop, though. I was high enough to see everything that was happening.”

  Crane rejected the idea that he was naïve about power. “I just want to see the system work properly,” he said. “I know the system can fail—World War II, Nazi Germany—but I also know that you need to do what is right. Because the government is so powerful, you need to have it run efficiently and honestly and according to the law.”

  “What are the odds the system will work properly in your case?”

  “I’m not giving you odds,” he says with a chuckle. “This is just something that I have to do.”

  Perhaps the still-to-be-written conclusion of Crane’s adventures would settle the matter. Would Secretary of Defense Ashton Carter rule that his case should be heard? Would Crane get his job back? Would the case’s resolution vindicate his faith in the justice of the system, or would it vindicate Devine’s skepticism that whistle-blowers can get a fair shake?

  All that was clear was that the conduct Crane witnessed inside the system had turned this whistle-blower protector into a whistle-blower himself. John Crane, The Third Man, had joined The Tribe.

  EPILOGUE

  The Future of the Tribe

  ________________

  Edward Snowden had more than one wish. Shortly after turning his life inside out by revealing some of the deepest secrets of the most powerful military empire in history, the former National Security Agency contract employee spoke with a reporter, Barton Gellman, of the Washington Post newspaper. Snowden’s primary goal had been to alert people around the world to the extraordinary surveillance to which the United States government was subjecting them. He believed that Americans in particular had a right to know the broad outlines of the surveillance so they could decide whether the intrusion on personal privacy was worth the extra security it purportedly delivered.

  But Snowden apparently had a second objective as well—to encourage more whistle-blowing. He “told me that he wanted to be actually a model for other whistle-blowers, that he wanted to show that you could come out and tell the truth about something you thought was wrong and you didn’t have to hide,” Gellman later told PBS’s Frontline.

  Hours after joining it, it seems, Edward Snowden was already trying to grow The Tribe.

  Would Snowden get his wish? Should he?

  “Given that Snowden has revealed how the US collects legitimate foreign intelligence and hurt our efforts against genuinely dangerous enemies like ISIS, I’m not sure that many will want to follow in his footsteps,” Michael Hayden told me. In a March 2016 interview with television host Charlie Rose, Hayden added that “98 percent of what [Snowden] released has to do with how America collects foreign intelligence. What civil liberties quotient was there in giving a [media] correspondent a document that let him write about the ability of the NSA to intercept and penetrate the emails of the Syrian armed forces?”

  If you’ve read this far in this book, you probably have opinions of your own about these questions. Because whether you love or hate him, detest or admire him, Edward Snowden and his whistle-blowing have transformed the world in which we all live. That gives each of us the right if not the responsibility to decide what we think about what he did and where it might lead next.

  But if everyone is entitled to his or her own opinions, no one is entitled to their own facts. So let’s review the evidence. Let’s separate the documented facts about Snowden’s whistle-blowing from the mountains of hearsay, politically charged accusations, and inaccurate information surrounding it. Let’s summarize what Snowden actually did, and the results it provoked, so we can evaluate whether his example is or isn’t likely to lead others to blow the whistle.

  A Public Interest Defense—Prohibited

  As of spring 2016, Snowden was still on the run from the US government. As far as the outside world knew, he was somewhere in Russia. He seemed to have easy access to Moscow, where on occasion he met visiting journalists and supporters.

  Snowden was not in Russia because he wanted to be. Who would choose to give up the balmy breezes of Honolulu for the wintry gloom of Moscow? No, he got stranded there in June 2013 while trying to change planes on his way from Hong Kong, where he had given the secret NSA documents to journalists Laura Poitras, Glenn Greenwald, and Ewen MacAskill, to another location, apparently in South America. When the US government learned that Snowden was in the Moscow airport, it revoked his passport and demanded his extradition. The Russian government refused and eventually granted him asylum
for one year, later extended to three years. Snowden had repeatedly denied accusations that, as a quid pro quo, he gave US secrets to Russia (or, while in Hong Kong, to China). He left all the documents with Poitras and Greenwald, he said, explaining that he had no interest in helping other governments. No evidence has surfaced to the contrary.

  Unless Snowden had somehow slipped across the border, he was still in Russia. Journalists quoted him saying that his girlfriend, Lindsay Mills, had come to live with him (they are reportedly planning to marry), and he maintained a public presence, appearing at conferences and giving interviews via a de facto television studio he built inside his apartment. He went out occasionally but not often and claimed he didn’t miss it. “I’m an indoor cat,” he explained—content as long as he had a secure Internet connection whereby he could read, think, and communicate with the outside world.

  It remained a puzzle why the US government, with its powerful surveillance capacity and many current and former officials yearning for Snowden’s scalp, had not been able to locate Snowden. Or had it located him but chosen not to act, at least not yet? After all, what practical options did the United States have? Washington dared not try to kidnap or kill Snowden while he was in Russia; violating the territory of a country with its own vast national security complex was a price too high. But having Snowden roughed up on the street was certainly a plausible ploy, provided such an assault could not be traced back to the United States—which couldn’t be a very pleasant thought for Snowden as he stepped out to do his grocery shopping.