Previous NSA Leakers, Thomas Drake And Mark Klein, Speak Out In Defense Of Ed Snowden

from the confirms-what-they-said dept

As US politicians and pundits push each other aside to tar and feather Ed Snowden for revealing some basic facts about NSA surveillance that the politicians and pundits themselves refused to call out for its clear abuse of basic 4th Amendment principles, two of the most important previous leakers of details of NSA surveillance have spoken out in support of Snowden. Thomas Drake, the former NSA employee who blew the whistle on NSA surveillance abuse (and faced decades in jail on trumped up charges that fell apart in court), has pointed out that Snowden's revelations confirm his own claims from before:

The NSA programs that Snowden has revealed are nothing new: they date back to the days and weeks after 9/11. I had direct exposure to similar programs, such as Stellar Wind, in 2001. In the first week of October, I had an extraordinary conversation with NSA's lead attorney. When I pressed hard about the unconstitutionality of Stellar Wind, he said:

"The White House has approved the program; it's all legal. NSA is the executive agent."

It was made clear to me that the original intent of government was to gain access to all the information it could without regard for constitutional safeguards. "You don't understand," I was told. "We just need the data.

Drake also highlights how he did use the "official" whistleblower channels that many are saying Snowden should have used, and look what happened to him:

I differed as a whistleblower to Snowden only in this respect: in accordance with the Intelligence Community Whistleblower Protection Act, I took my concerns up within the chain of command, to the very highest levels at the NSA, and then to Congress and the Department of Defense. I understand why Snowden has taken his course of action, because he's been following this for years: he's seen what's happened to other whistleblowers like me.

By following protocol, you get flagged – just for raising issues. You're identified as someone they don't like, someone not to be trusted. I was exposed early on because I was a material witness for two 9/11 congressional investigations. In closed testimony, I told them everything I knew – about Stellar Wind, billions of dollars in fraud, waste and abuse, and the critical intelligence, which the NSA had but did not disclose to other agencies, preventing vital action against known threats. If that intelligence had been shared, it may very well have prevented 9/11.

But as I found out later, none of the material evidence I disclosed went into the official record. It became a state secret even to give information of this kind to the 9/11 investigation.

The end result was that his whistleblowing didn't do much, but he got arrested because he accidentally kept an almost entirely meaningless document about meeting participants in his home. And, when he was arrested, for just having the list of meeting attendees, he was smeared for causing "exceptionally grave damage to US national security."

Separately, former AT&T technician, Mark Klein, who revealed that he helped install NSA equipment directly within AT&T's network is speaking out about how Snowden, rather than the telcos, deserve retroactive immunity. The telcos broke the law and had to have Congress go back and retroactively make what they did -- which clearly broke the law at the time -- legal. Klein points out how his revelations were brushed off and ignored, while Snowden's revelations confirm a lot of what he said:

"It was clear that the NSA was looking at everything," Klein said. "It wasn't limited to foreign communications."

On Tuesday, Klein said that for a number of reasons, Snowden's disclosures sparked more public outrage than his own revelations did more than seven years ago.

For one thing, Klein said, Snowden had direct access to a secret court order and details of the program, while Klein pieced together the government's surveillance through internal AT&T documents and in discussions with colleagues who worked on the project.

"The government painted me as a nobody, a technician who was merely speculating," said Klein, who made his disclosures after he accepted a buyout and retired from AT&T in 2004. "Now we have an actual copy of a FISA court order. There it is in black and white. It's undisputable. They can't deny that."

Snowden's revelations just add to a pile of existing evidence. Look at what Drake, Klein and other whistleblowers have said over the past decade, and recognize that Snowden is just confirming the things that have already been stated by previous whistleblowers, but which the pundits and politicians tried to brush off as not happening.

Filed Under: ed snowden, edward snowden, mark klein, nsa, nsa surveillance, thomas drake, whistleblowers, whistleblowing

The Daily Show's Awesome Re-imagining Of How Whistleblower Thomas Drake Was A Spy

from the papers-blazing dept

We've written plenty about the ridiculous government case against whistleblower Thomas Drake, who exposed waste and fraud at the NSA, only to find himself charged under the Espionage Act as a spy, because he had kept a few documents on his computer that shouldn't have been there. While the government case completely fell apart (and ended with Drake agreeing to a plea that basically admitted the government had no case), it's nice to see that the vindictive nature of the feds using the Espionage Act against whistleblowers has been getting more mainstream attention.

The latest? The Daily Show, which did a hilarious interview with Drake, complete with Jason Jones' attempt to turn his story into a spy thriller movie, only to be disappointed by the lack of anything remotely spy-like happening (and, yes, I know, non-US viewers can't see this, blame Viacom):

Unfortunately, what the story does not cover, is that the feds have continued to go after whistleblowers under the Espionage Act. The Obama administration has now done that six times, including against the CIA agent who blew the whistle on waterboarding. Prior to this administration, the Espionage Act had been used only three times. In other words, he's doubled the use of the act of all previous Presidents. For a President who campaigned on civil liberties issues, and whose first day in the office included a memo in support of whistleblowing, this is beyond depressing. It's good to see more mainstream press coverage, but they need to know it didn't end with Thomas Drake.

Filed Under: espionage act, the daily show, thomas drake, whistleblowing

Congressional Staffer Who Helped Blow The Whistle On NSA Warrantless Wiretapping Sues The Feds

from the the-next-chapter dept

You may remember the ridiculous Thomas Drake case, in which the US government went after a former NSA employee under the Espionage Act, threatening him with decades in jail. However, as the details showed, Drake was really being targeted not for leaking information, but as a vindictive response for talking to Congressional staffers about what he saw as abuse and waste by the NSA. Jane Meyer, in the New Yorker, wrote a wonderfully detailed account of the case last year. It highlighted how the charges seemed pretty trumped up, claiming that having a certain document on his home computer was illegal, even though the clear target of the investigation was whether he had leaked info to the press.

Drake's story intertwines with that of a Congressional staffer named Diane Roark, who plays a role in his story. A snippet from that New Yorker piece:

Not long after Binney quit the N.S.A., he says, he confided his concerns about the secret surveillance program to Diane Roark, a staff member on the House Permanent Select Committee on Intelligence, which oversees the agency. Roark, who has flowing gray hair and large, wide-set eyes, looks like a waifish poet. But in her intelligence-committee job, which she held for seventeen years, she modeled herself on Machiavelli’s maxim that it is better to be feared than loved. Within the N.S.A.’s upper ranks she was widely resented. A former top N.S.A. official says of her, “In meetings, she would just say, ‘You’re lying.’ ”

Roark agrees that she distrusted the N.S.A.’s managers. “I asked very tough questions, because they were trying to hide stuff,” she says. “For instance, I wasn’t supposed to know about the warrantless surveillance. They were all determined that no one else was going to tell them what to do.”

While Roark was not charged in the same process that resulted in charges against Drake, there was a search conducted, and computers taken. She's now sued the US government, seeking the return (many years later) of the computers seized, as well as findings that the feds actions were unconstitutional.

Plaintiff asks that the Court find unconstitutional the following Government actions and claims:

the Government's activities and assertions... that infringe on citizen speech and communications under the First Amendment to the Constitution and on property rights under the Fourth, Fifth and Sixth Amendments.

the manner in which the Government investigated, managed and prolonged her case. Plaintiff contends that the actions taken against her constitute retaliation for her whistleblower activities and execution of her Congressional oversight responsibilities that revealed inefficenicy, contract fraud, the persistent waste of billions of dollars on a single ill-conceived program that was never built, plus illegal and unconstitutional operations.

To be honest, these kinds of lawsuits rarely get very far, but it should be interesting to watch either way...

Filed Under: diane roark, nsa, thomas drake, warrantless wiretapping, whistleblower

Politicians Grandstand About Leaks, But The Rest Of Us See The Prosecution Of Whistleblowers

from the priorities,-people dept

Early last week, we wrote about the oddity of how the White House didn't seem to much mind "leaks" that made the President look good in terms of being "tough" on our enemies, such as in the NY Times story confirming that the US was behind the Stuxnet malware, and that the President himself was very familiar with the program. This came at the same time as the White House continuing to vindictively prosecute people responsible for even very minor leaks, such as the Thomas Drake affair, in which some whistleblowing about out-of-control spending at the NSA tuned into a malicious prosecution.

Soon after that story came out, the issue of "good leaks" and "bad leaks" became a huge political football, as it gave the President's opponents an angle to attack him for leaking classified info. The President himself had to shoot back and insist that there were no such leaks happening from the White House -- which is clearly not true. Some of the information could have only come from administration officials.

And, of course, it wasn't just limited to Stuxnet, but other "leaks" of classified info, such as stories around the unmanned drone strike program, which lots of people have reported on, but which is still "classified." Of course, we've now seen grandstanding on both sides of the aisle decrying these leaks -- but not the actions that were exposed by them!

Instead, they all seem to be upset about the leaks themselves, rather than the fact that these questionable activities were secret in the first place. As John Cook recently wrote, these kinds of "leaks" are important because they let us know what our government is doing in our name. That's why these aren't leaks, so much as whistleblowing. And that's an important distinction. That's doubly true as we see to what ridiculous lengths the very same administration goes to in order to attack anyone who reveals information that makes it look bad.

One person's leak is another person's whistleblowing. To treat them all as "leaks" that must be punished (often severely) creates a significant chilling effect on reporting on key issues -- and (worse) gives the government a bubble in which it gets to abuse its power. Rather than condemning all these "leaks," we should be trying to (a) celebrate those who blew the whistle and (b) understand the details behind why such things were secret in the first place.

Filed Under: leak, nsa, obama, stuxnet, thomas drake, whistleblower, white house

Former Top Government Secrets Keeper Blasts Administration For Abusing Espionage Act To Punish Whistleblowers

from the sad dept

We've discussed the rather disappointing and immensely troubling efforts by the Obama administration, which promised more transparency and encouraged whistleblowing upon taking office, to attack whistleblowers any way it can. As noted, the administration has been using the Espionage Act -- which is supposed to be used against spies -- against whistleblowers, and has done so more often than all previous Presidents combined. Of course, the first big case against a whistleblower, Thomas Drake, completely collapsed.

Now it's come out that a former government official, J. William Leonard, who was in charge of the Information Security Oversight Office was so disturbed by the Thomas Drake case that he filed a formal complaint with both the Justice Department and the NSA and offered to testify on Drake's behalf that "there were no secrets at issue" and that he had never seen "a more deliberate and willful example of government officials improperly classifying a document."

Leonard held his role during the Bush administration (which was fairly notorious for secret keeping in its own right -- though not to this level). So some may argue that it's purely a political move. But these sorts of roles generally aren't particularly partisan, and even when there are political party differences, this sort of effort is pretty rare.

Filed Under: espionage, free speech, nsa, obama, thomas drake, warrantless wiretapping, whistleblowing, william leonard

Thomas Drake Gets Probation, Community Service; Judge Slams Feds For Prosecution

from the threat-to-our-country? dept

The fed's ridiculously vindictive legal attack on Thomas Drake for whistleblowing is now basically over. Late Friday, a judge sentenced Drake to 1-year probation and 240 hours of community service. As you may recall, the fed's case against Drake completely fell apart, just as the trial was to get underway, in part due to a lot of press coverage of just how ridiculous the lawsuit was. It was never, as the government implied, about leaking classified information. It was always a vindictive attack on Drake for pointing out massive amounts of waste at the NSA.

In the plea deal that Drake agreed to, prosecutors agreed not to ask for jail time, even though he could have received up to a year in jail (significantly lower than the 3 or so decades he was facing under the original charges). The prosecutors did ask for a $50,000 fine though. And they didn't get it. In fact, the judge scolded prosecutors for the whole case:

Judge Bennett said the government's decision to back away from its case on the eve of trial was "extraordinary," and added that he was particularly troubled by the 2 and ½ year time lapse from when federal agents first searched Mr. Drake's home to when he was charged. "It was not proper. It doesn't pass the smell test," the judge said.

Of course, it didn't pass the smell test because the whole thing smelled rotten. Thankfully, it ended on a somewhat positive note, though it's still ridiculous that Drake received any punishment at all.

Filed Under: censorship, obama, thomas drake, whistleblowing

The Latest Attempt By The Obama Administration To Punish Whistleblowers

from the thomas-drake,-part-II dept

Earlier this year, we noted Daniel Ellsberg's comments about how very few people realized that President Obama -- a man who ran on a platform of transparency and who has repeatedly said he supports whistleblowing efforts -- has been the most aggressive President ever in trying to punish whistleblowers. He pointed out that President Obama has brought more indictments for leaking info than all other presidents combined. And it's resulted in absolutely ridiculous prosecutions like the Thomas Drake affair, which finally collapsed after it became clear that the feds were merely being vindictive against Drake for his whistleblowing activities, rather than finding any actual case of espionage.

Now we have the sequel to the Drake situation, with much higher stakes in some ways. Conor Friedersdorf has a story at The Atlantic, about the administration's efforts to put reporter James Risen in jail. The full story is a worth a read, but it's pretty ridiculous. Risen is famous for exposing the Bush administrations warrantless wiretapping regime, as well as a few other clearly illegal programs. He so infuriated the Bush administration that Dick Cheney wanted to put him in jail... but realized there was no legitimate way to do so.

Along comes President Barack Obama. Part of Obama's campaign was actually built off of the information that Risen exposed:

You'd think that President Obama would take a different view. After all, he might not be in the White House today if the Bush Administration would've succeeded in keeping all its secrets: the torture, the detainee deaths, the abuses at Abu Ghraib, the spying on Americans, the faulty pre-war intelligence in Iraq, and all the rest. One would expect Obama of all people to see the value in Risen's reporting - the real ways in which he has helped to preserve civil liberties, American freedom, and accountability in government - and to weigh that against the national security implications of reporting in 2006 on a bungled CIA effort that happened way back in the year 2000.

You'd think. Instead, we get the opposite. The Obama administration has come down even harder on Risen than the Bush administration did, and is now threatening him with jail for not exposing his sources for some of his stories. This showdown may come soon, as a judge has indicated that she may require Risen to give up his sources. As Glenn Greenwald has noted, this whole thing seems to be a part of the "climate of fear" that was certainly present among the previous administration, but which has ratcheted up dramatically with the current administration. The key "fear" element is to make it known to both insiders who leak and reporters who publish those stories, that they could face jail time, even as the administration claims that it's encouraging whistleblowing.

Ellsberg speculated that President Obama's reason for being so much more aggressive on these issues was one of embarrassment . That is, the President recognizes that the federal government is doing all sorts of questionable stuff -- the type of stuff he actively campaigned against -- and is embarrassed by it. But since he (for whatever reason) is unable to put a stop to it, he's trying to do the next best thing: which is threaten and or punish anyone who might reveal what's being done. I'm not sure I buy that theory, but either way the situation is clearly troubling, and completely counter to the image that Obama has tried to portray of openness and transparency, and a willingness to respond directly to critics rather than punish them.

If you're concerned about freedom of speech and freedom of the press, this story should concern you. If you believe in the importance of whistleblowers to keep governments accountable when they do things like break the clear letter and intent of the law, this story should concern you. Tragically, however, it's not getting very much attention at all.

Filed Under: free speech, james risen, thomas drake, whistleblowing

NSA Whistleblower Thomas Drake Agrees To Plea Bargain Deal

from the totally-understandable dept

In our earlier post about the case against Thomas Drake, I sort of suspected he would eventually take the plea bargain deal, which is why I warned that people shouldn't be upset if he did. And he's now done exactly that, but the details seem reasonable. He rejected two separate plea bargain offers, even ones that likely would have meant no jailtime, if it meant agreeing to things he didn't think were accurate. In the end, the agreement he took involves pleading guilty to unauthorized use of a computer, which could carry a one-year sentence, but prosecutors have agreed that they won't oppose it if he seeks a non-jail sentence.

As I said in the earlier post, as much as it would have been nice to see him fight all the way to the end and totally clear his name, this seems perfectly reasonable. In this way, the key parts of the case -- involving a really awful attempt by the federal government to abuse the Espionage Act to punish a clear whistleblower -- gets totally dumped. And, when you're faced with the potential of 35-years in prison, at some point reality sets in and it's almost crazy not to take a plea bargain that gets you no jail time. Just the fact that he turned down the two earlier plea deals is pretty amazing. In the end, the only way to look at this is that Drake stood up to the government and won. The feds won't get the precedent they wanted for using the Espionage Act against a whistleblower, and plenty of people learned about the ridiculous vindictive prosecution by the federal government.

Filed Under: censorship, obama, thomas drake, whistleblowing

Feds Ridiculous Prosecution Of Whistleblower Thomas Drake Falling Apart

from the stay-strong dept

We've written a few times about the federal government's ridiculous and vindictive attempt to convict Thomas Drake of violating the Espionage Act and put him in jail for 35-years, all because he blew the whistle on some massively wasteful NSA spending.

If you haven't followed the case, Drake was part of a team that helped to develop a system that the NSA could use for its warantless wiretapping program. To prevent the system from being used to wiretap Americans (something the NSA is not supposed to do), the team also built in some protections to block out such taps on Americans. However, after 9/11, the NSA upper management decided to spend billions on a brand new system that would more broadly wiretap pretty much everyone without a warrant and without any such protections. That system was something of a failure and Drake and some others were upset that so much was wasted on such a bad system, when the NSA had a system that worked within the law. As part of being upset, he provided some info to a reporter at the Baltimore Sun concerning the financial failure of the system (but not anything classified about the warrantless wiretapping program itself).

As investigators were seeking to find out a source for a different report (to the NY Times), which did reveal the warrantless wiretapping, they investigated Drake and claimed to have found four "classified" documents that he had mishandled. Even that's misleading. Drake (and a few others) had (properly) filed a complaint with the Inspector General about NSA waste, and were told to keep copies of the report themselves, which included those files. One of the "classified" documents was even stamped "unclassified", but the government argues Drake should have known it was really classified. Other documents were declassified anyway months later. Drake's case is a clear example of a vindictive administration trying to hit back at whistleblowers by abusing the Espionage Act.

And now that case may be falling apart.

Earlier in the week, it was reported that, to avoid revealing secrets at the trial scheduled to begin next week, the government would use a code based on boxes and arrows to try to obfuscate any classified info, leading to complaints from Drake's team that the government seemed to want to hide important information that would help clear Drake. However, the government instead decided not to use that evidence at all, and people are beginning to realize that the entire case is crumbling. In fact, the feds are apparently now desperate to avoid actually going to trial and are offering up all sorts of plea bargains, including the latest: rather than face 10 felonies, Drake could agree to a misdemeanor and get no time in jail.

For someone facing potentially 35 years in jail, I can see how tempting that can be. But Drake has declared that he won't "plea bargain with the truth." It would be nice if he continues to stick up for what he believes is right, but I don't think anyone can rightly complain if he ends up accepting such a plea bargain. Unless you've been on the wrong end of a criminal lawsuit that could put you in jail for 35-years, it's difficult to complain about a guy taking a plea bargain that keeps him out of jail. Still, that doesn't mean we can't hope that he continues to fight this clear abuse of federal power against whistleblowers.

Filed Under: censorship, obama, thomas drake, whistleblowing

Travesty Of Thomas Drake Being Charged With Espionage Making Mainstream News

from the making-a-joke-of-government dept

We already covered the excellent New Yorker piece by Jane Meyer about the government's ridiculous prosecution of whistleblower Thomas Drake under the Espionage Act, and it appears that story is getting much more mainstream attention as well. The Economist picked up the story and over the weekend 60 Minutes did a big piece on it that basically reiterates everything in Mayer's piece. Drake blew the whistle on a ridiculous bit of mismanagement by the NSA, in which they paid billions to defense contractors, rather than using a better, cheaper (and more legal) solution built in-house. His "crime" wasn't revealing any classified info -- because he did not. It was that in keeping the records for the (official and legal) complaint he filed with the Inspector General's office, he kept certain records in his home that were designated as classified. The Economist's summary covers the ridiculousness of charging him over these documents:

Let's go through this trove of secrets. Three of the documents that could land Mr Drake in jail were copies of material he had submitted to the inspector-general in a complaint about a surveillance programme described by others as a "wasteful failure". The programme in question was abandoned in 2006 after eating up $1.2 billion. (Ms Mayer helpfully notes that the inspector general's website tells complainants to keep copies of their documents.) One of the other documents under scrutiny is a schedule of meetings marked "unclassified/for official use only". Prosecutors say the paper should've been secret and that Mr Drake should've known it should've been secret. The final document was declassified three months after Mr Drake's indictment.

And that's it. At worst, he mishandled some documents, but even that's in question. It seems abundantly clear that the prosecution of Drake is because he annoyed his bosses at the NSA and embarrassed them by getting press coverage for the fact that they became enamored with the spin from some defense contractors, leading them to waste taxpayer money. And for that he gets charged with espionage, even as President Obama continues to insist that he values whistleblowers within the government. The Thomas Drake affair is shaping up to be yet another example of an executive branch out of control when it comes to abusing the power of its position. This is a problem that all Americans should be worried about, as both major parties seem more than happy to abuse power while in office.

Filed Under: free speech, nsa, thomas drake, warrantless wiretapping, whistleblowing