Bravehearts Page 4

  When I interviewed Binney, he acknowledged that he was not neutral about Hayden’s policies as NSA director. But he said that these policy differences were irrelevant to Hayden’s technical description of how satellite intercepts work, which Binney regarded as misleading—or perhaps merely ignorant—gobbledygook.

  “He doesn’t understand what he’s saying,” Binney said. “He may be confused about how the system worked, so when he tried to relay it to you, he tried to bluff his way through. That’s what the intelligence community has been doing with Congress and everybody else—acting like it’s so complicated that they can’t understand it. And it’s not. It takes a bit of thinking, but it’s not that difficult to work out. They’re just buffaloing everyone and nobody is taking the time to think it through or question it in any detail.”

  Forget all of Hayden’s talk about uplinks and downlinks, Binney said; that’s either an intentional distraction or evidence of how poorly he understood the technical workings of satellite surveillance. Even if you take Hayden’s statement—“We never collect the uplink”—at face value, Binney said, the NSA’s intercept of the downlink would still have revealed the phone numbers of the San Diego hijackers.

  “It doesn’t matter which you’re collecting, the uplink or the downlink,” Binney told me. “The same information travels along either side [of any phone call]. It has to, or the call can’t connect. If I call you, I type in the routing—your phone number—that’s needed to get my call through the telephone system’s switches to your phone. That routing automatically carries my number to your number so your number can be connected back to me. Otherwise we couldn’t talk to one another. That’s how caller ID works: my number automatically goes with the call, and you can see it on your end before you pick up.” (This is how all telephone calls work, Binney added, whether they are made between cell phones or landlines, crossing oceans or connecting neighbors in adjoining apartments.)

  But why would Hayden misstate something so easily checked, I asked. Why would a man who cares as much as Hayden does about his relationship with the media endanger it by insisting on a story that doesn’t hold water?

  “I’m guessing that he’s assuming that there are numbers only on one end of the communication—that if you look at the uplink from the Yemeni safe house to the satellite, that it will only show the number in Yemen,” Binney replied. “Hayden doesn’t know the physics either.”

  I went back to General Hayden to request clarification of his remarks. I noted that none of the technical experts I’d consulted had confirmed his description of how satellite intercepts of phone calls worked. I asked if he could rebut their objections or put me in touch with an expert who could.

  Hayden’s full response on this point follows (apologies in advance for his opaque first two sentences; he appears to have replied in haste): “The uplink reference is not connected [to the safe house controversy]. That’s a FORNSAT [foreign satellite] issue. That said, I repeat … nothing in the physics of the intercept or the content of the calls told us that the callers were in [San Diego]. NSA has consistently testified to that effect … not just me. Keep in mind that we are not the phone company. We collect as best we can from outside the system.”

  Playing By the Rules

  Putting aside whether Drake or Hayden is right about the NSA having missed 9/11, the key question as far as Drake’s whistle-blowing is, what did he do with the information he uncovered?

  In a phrase, Drake obeyed the rules. As a career military man, he followed established procedures and went up the chain of command to inform his superiors of what he regarded as questionable conduct. He first shared his concerns with a small number of high-ranking NSA officials and then with the appropriate members of Congress and staff at the intelligence oversight committees of the US Senate and House of Representatives.

  A straight arrow since high school—he once gave the police the names of classmates he suspected of selling pot—Drake continued as an adult to take matters of right and wrong very seriously. “I took an oath to uphold and defend the Constitution against all enemies foreign and domestic,” he told me. “I also had an obligation as an intelligence officer to report instances of ‘waste, fraud and abuse.’ This was clearly such an instance.”

  In Drake’s mind, the President’s Surveillance Program, as it was known, recalled the totalitarian mindset of the East German Stasi secret police on whose communications he had eavesdropped during the Cold War. “You don’t spend year after year listening to a police state without being affected, you just don’t,” he told me. “I remember saying to myself at the time, Wow, I don’t want this to happen in our country! How could you live in a society where you always have to be looking over your shoulders, not knowing who you could trust, even in your own family?”

  Drake could outline his concerns only to a handful of colleagues at NSA because the surveillance programs at issue were some of the most secret in government; very few individuals had the security clearances required to discuss them. The same constraint pertained on Capitol Hill. When he appeared before the Joint Inquiry into Intelligence Community Activities before and after the Terrorist Attacks of September 11, 2001, Drake provided voluminous written and oral testimony but delivered it in “closed” sessions that only members of Congress and staff who held the necessary top-level clearances could access.

  Drake spent countless hours in these sessions but eventually came to the conclusion that no one in a position of authority wanted to hear what he was saying. Or at least they didn’t want to do anything about it. When he told his boss, Ms. Baginski, that the NSA’s expanded surveillance following 9/11 seemed legally dubious, she reportedly told him to drop the issue: the White House had ruled otherwise.

  The reaction of Congress was even more suspicious, said Drake. “All the information I gave to congressional investigators seems to have disappeared,” he told me. “The only thing left on the record is the fact that I testified. One congressional staffer told me that what I’d told the inquiry was considered so secret that the NSA wouldn’t even let it be included in the highly classified version of the final report.”

  As more time passed and no action was taken—except that the President’s Surveillance Program expanded—Drake decided he had to do more. If playing by the rules did not compel his colleagues in the executive and legislative branches to act, he would take his concerns to the press; perhaps public exposure would trigger reform. In November 2005 Drake anonymously contacted a reporter, Siobahn Gorman, at the Baltimore Sun, the hometown paper for the NSA, whose headquarters were in Fort Meade, Maryland.

  In his dealings with the reporter, Drake said, he continued to obey government security rules: he never divulged classified information; he only described in general terms what he saw going on inside the NSA and advised how to independently confirm his claims.

  The resulting articles began appearing in the Baltimore Sun in May 2006. Perhaps because the newspaper was not perceived as a major player within official Washington, the articles created little stir outside of the intelligence community. Within the community, however, the response was volcanic. Vice President Cheney himself reportedly ordered that the leaker be found and punished.

  “I figured I would lose my job” if discovered as the leaker behind the Baltimore Sun articles, Drake said, “but I could live with that. This was about something much bigger than me. I served in the military, and you knew that if you had to, you would put your life on the line for the greater cause of liberty and freedom.”

  Drake ended up losing much more than his job. On November 10, 2007, federal agents with guns drawn raided his house in suburban Maryland. He was indicted under the Espionage Act on ten counts that carried a potential penalty of thirty-five years in prison—in effect, the rest of his life. He was publicly vilified: most daily media coverage emphasized the Bush administration’s characterization of him as an alleged criminal who had compromised some of the nation’s most valuable defenses against terrorism. Drake’s
security clearances were rescinded, rendering him effectively unemployable (such clearances are a prerequisite for most security work, including in the private sector). Former colleagues were ordered not to have further contact with him; any who did would face similar punishment.

  As detailed below, Drake fought back against the government’s efforts to imprison him and eventually prevailed. Jesselyn Radack, another GAP attorney, was instrumental in his defense, helping arrange a feature article in the New Yorker that provided a contextual portrait of his actions. A brief appearance on the TV news show 60 Minutes further enhanced his public profile. These spasms of publicity did not, however, propel Drake’s revelations into the kind of continuing news story that commands the attention of the rest of the media or the political class in Washington, much less the general public. Had Edward Snowden not come along, the NSA’s warrantless surveillance program therefore might never have been fully exposed.

  In retrospect, the whistle-blowing experiences of Drake and Snowden were different in two key respects. Unlike Snowden, Drake had little impact on public awareness. And Drake’s whistle-blowing brought him to the edge of financial and personal ruin. He nearly lost his house. He sacrificed an estimated one million dollars in lost income and legal fees, plus nearly as much in foregone retirement payments. He and his wife separated (but later reconciled) and he lost countless professional friendships.

  Nevertheless, Drake said that the government never broke him psychologically, perhaps in part because of the inner strength he had developed as a child. He did not volunteer the insight, but when I asked, he confirmed that part of his emotional resilience, and his sense of justice, stemmed from growing up as the son of a violent father.

  “My dad used to beat me up,” Drake acknowledged. “But he could never get to the essence of me, no matter how badly I was abused. I had to hide myself at times in gym class. The worst part of it was in fifth, sixth and seventh grades; I would never take my clothes off in front of other kids because it would beg too many questions. The belt was his favorite…. What I did have was my mind and my spirit. As I read more and more history and pondered it, I saw that it wasn’t just me who was treated unjustly. And I had to ask, ‘Why do we treat each other this way?’”

  Notwithstanding the price he paid for blowing the whistle, Drake said he would do it all again if necessary. “No, I don’t regret it,” he told me. “There are things I would do differently, but I don’t regret it. The government has incredible powers at its disposal, and when it abuses those powers, someone has to stand up.”

  Civil Disobedience Whistle-blowing Is What Works

  Edward Snowden was already contemplating going public when he, like everyone else at the NSA, began following Drake’s case. Despite being NSA colleagues, they had never met or communicated. After all, the agency employed tens of thousands of people and contracted with private companies for the services of thousands more. Besides, Drake was a much more senior official. But as Snowden considered his options for coming forward, he drew crucial lessons from Drake’s experience.

  “The case of Thomas Drake represented a turning point in the relationship between the executive branch of government that stands over the intelligence agencies and the actual ordinary Americans who comprise the workers of those agencies,” Snowden said in 2015. “From day one when you enter into one of these agencies, it’s beaten into you again and again … that if you see something that’s illegal, that’s unconstitutional, waste, fraud and abuse, you have to stand up and say something. You have not just the right but the obligation to try to correct those improper activities.

  “Despite that, here we had a guy [Drake] who did absolutely everything right,” Snowden continued. “He placed his faith in the system. He saw the warrantless wiretapping of hundreds of millions of Americans. He saw corruption in procurement processes, in standards adoptions, and things like that. He brought it to the IG. He brought it to Congress. And rather than protecting him … they actively retaliated against him in the most public, aggressive way, to send a message to everyone in the workforce that things were different now…. It doesn’t matter whether it looks unconstitutional or unlawful to you, because somebody somewhere said this was ok. And you simply have to accept that. That lesson, that the system was broken, is something everybody at every desk at every agency internalized. We all understood the shift; we could feel the wind changing.”

  What neither Snowden nor Drake knew at the time was that Drake’s whistle-blowing had also provoked a ferocious battle inside the Pentagon agency responsible for handling whistle-blower complaints. This battle is described in Part Three of this book.

  On one side stood the individual I’ve called The Third Man. His real name is John Crane. He was the assistant inspector general of the Department of Defense; as such, his responsibilities included supervising the whistle-blower office at DoD, as well as handling all whistle-blower allegations within the DoD, including from the NSA and other intelligence agencies. Crane was also responsible for communications to Congress and the news media. Unbeknownst to Drake, Snowden, or anyone in the outside world, Crane was urging a fair investigation of Drake’s claims as well as protection of his identity.

  On the other side were two senior Pentagon officials—Lynne Halbrooks, the Pentagon’s acting inspector general, and Henry Shelley Jr., the IG’s general counsel. According to Crane, Halbrooks and Shelley ordered Crane to close his investigation of Drake’s accusations and to identify Drake to the Bush administration officials hunting for the leaker(s) behind the New York Times December 2005 article about the NSA’s expanded surveillance.

  Henry Shelley declined to be interviewed for this book. In an email, he told me, “Most of the topics you indicated you wanted to discuss would necessitate me discussing information covered by attorney client privilege and/or various federal laws protecting the privacy of individuals. I am confident when this matter is fully resolved no wrongdoing on my behalf will be identified.” He added, “I trust you will be fair to all involved.”

  I replied that I strive to “be fair to all involved” in everything I write but that this can be difficult when one lacks a full accounting of the facts. I appealed to Shelley’s boss, Glenn Fine, the Defense Department’s inspector general, in January 2016 and, in this context, Shelley’s client. I asked Fine to “free Mr. Shelley from these constraints” and allow him “to speak on the record about the allegations against him and the DoD OIG.” Responding through a spokeswoman, Fine declined my request without offering an explanation.

  Lynne Halbrooks did not respond to my repeated requests for an interview.

  Like Drake, John Crane thought government officials should play it straight, regardless of how politically troubling a given revelation might be. “I tried to make sure there would never be an Edward Snowden,” Crane told me. “Since I was in charge of the [Department of Defense’s] whistleblower hotline, I set up both a secret and a top secret channel where intelligence employees, both civilians and military, could forward disclosures to our office without fearing retaliation.”

  Crane was moved to establish these additional whistle-blower hotlines by the experience of Bradley (later, Chelsea) Manning, a US Army intelligence analyst. In 2010, Manning leaked thousands of classified or sensitive government documents to WikiLeaks, a nonprofit organization that specialized in publishing secret information provided by anonymous sources. Manning’s most attention-grabbing disclosure was video shot by US attack helicopters in Iraq that showed in real time the slaughter of noncombatants, including two journalists for Reuters and two children. “Look at those dead bastards,” one US airman exults on the video. Another smirks, “Well, it’s their fault for bringing their kids into a battle.”

  Manning gave the documents to WikiLeaks without knowing much about the organization, its anti-establishment politics or its open-source style of publishing. WikiLeaks shared some of Manning’s documents with the Guardian; together, WikiLeaks and the Guardian then invited the New York Tim
es, Der Spiegel magazine in Germany, Le Monde newspaper in France, and El Pais newspaper in Spain to join in a consortium to publish a selection of the most newsworthy revelations, though only after these traditional news organizations’ journalists had vetted these revelations and put them into context. Other documents WikiLeaks simply posted in bulk on the web, letting the chips fall where they may.

  Unlike Snowden later, Manning did not have much of a strategy for making his disclosures. He was simply appalled by the violence and corruption he was learning about as part of his job. “I just couldn’t let these things stay inside my head,” he later explained. His one guiding principle seems to have been a belief that the American public had a right to know how its tax dollars and national honor were being deployed in Iraq. “I want people to see the truth regardless of who they are, because without information, you cannot make informed decisions as a public,” he said. “I feel, for some bizarre reason, it might actually change something. Or maybe I’m just young, naive and stupid.”

  Certainly it was foolish of Manning to confide what he had done to a stranger he met online, a stranger who then informed US authorities. Manning was duly arrested and charged with violating the Espionage Act. After being taken into custody, Manning announced that he had felt female from a young age and henceforth wanted to be called Chelsea, not Bradley. In July 2013, roughly a month after Snowden made his electrifying disclosures, Chelsea Manning was sentenced to 35 years in prison, which she is serving at the maximum security military facility at Fort Leavenworth, Kansas.

  Crane didn’t want to see this happen to other whistle-blowers. He was not necessarily against US war strategy, nor did he favor or oppose what Manning had done. He simply was committed to making sure that whistle-blowers could come forward without facing retaliation. Hence his establishment of the secret and top-secret whistle-blower hotlines where “intelligence officials and civilians could confidentially bring forward any concerns without fear of detection or retaliation.”