Whistleblowers Band Together To Sue FBI, NSA And DOJ For Malicious Prosecution, Civil Liberties Violations

from the jury-trial-request-will-never-be-obliged,-that's-for-sure dept

This should be fun. A bunch of whistleblowers that were hounded, surveilled and prosecuted/persecuted by the US government are banding together to sue all the big names in domestic surveillance.

Thomas Drake, Diane Roark, Ed Loomis, J. Kirk Wiebe and William Binney have filed a civil rights lawsuit against the NSA, FBI, DOJ, Michael Hayden, Keith Alexander, Chris Inglis, Robert Mueller and a handful of others. They will be represented by Larry Klayman, who has some experience suing intelligence agencies.

The claims arise from the government's treatment of these whistleblowers after they started making noise about the NSA's surveillance programs. More specifically, the lawsuit points to the short-lived internet surveillance program THINTHREAD, which was ignored and abandoned in favor of something more expensive, but less protective of Americans' communications.

Plaintiffs worked in various roles on developing and perfecting a candidate program called THINTHREAD which was capable of performing the technical work desired by the NSA for surveillance of the internet efficiently, effectively, and at very low cost.

THINTHREAD was put into operation successfully but only on a demonstration basis. It was approved to demonstrate that it worked, but not officially commissioned for actual operational use.

Despite the Plaintiffs demonstrating that THINTHREAD actually worked, the NSA ignored THINTHREAD as a candidate for performing the desired surveillance of the internet and telephone communications, because THINTHREAD was inexpensive and highly effective, yet Lt. General Michael Hayden had made a corporate decision to “buy” externally rather than “build” internally the solution deemed necessary to harvest internet data.

$4 billion went into another program called TRAILBLAZER (THINTHREAD's internal development cost, by contrast, was only $4 MILLION), along with five years of development. In the end, TRAILBLAZER never worked properly and was abandoned by the NSA in 2006.

This wasteful "funneling" of funds to preferred government contractors was reported to the Dept. of Defense by four of the whistleblowers, under the heading of waste, fraud and misuse of taxpayers' money. The DoD wasn't happy. It issued a scathing internal report. But the NSA wasn't interested in having its faults pointed out. It sent the DOJ after the whistleblowers, using an unrelated leak of information about the NSA's expansive domestic surveillance programs to the New York Times as the impetus for a series of raids.

According to the filing, the raids were retaliatory. The government had already determined the plaintiffs had nothing to do with the leaks reported on by the New York Times. And it used faulty affidavits to justify the corresponding raids.

In fact, the affidavit for the search warrants are themselves based upon an illegal, warrantless phone tap and refer to a conversation illegally intercepted between Plaintiff Roark and Plaintiff William Binney, although misrepresenting the call’s contents. Further, the ultimate pretext for the search, a paper describing THINTHREAD at a high level that Binney had given the FBI, was falsely claimed by NSA to be classified. Thus, the search warrant affidavit is not only false but illegal.

The lawsuit also attempts to use the breadth and reach of known surveillance programs as proof the government knew the whistleblowers had nothing to do with the NYT leak.

Moreover, as later revealed by Edward Snowden, the NSA was even then, with the assistance of cooperating telephone and telecommunications companies, conducting mass interception and surveillance of all telephone calls within the domestic United States for the very purpose – at least so they claimed – of detecting both external and internal threats against the national security of the United States.

Therefore, through those phone and internet records, the Defendants had actual evidence at the time of the false affidavit and retaliatory searches and seizures that none of the Plaintiffs had communicated with the The New York Times or other journalists, except that Plaintiff Drake on his own had spoken confidentially with regard to public and /or unclassified information to the Baltimore Sun.

The end result of the FBI, NSA and DOJ's actions in response to whistleblowing (largely performed through proper channels) is a host of alleged civil liberties violations and other abuses, starting with the violation of 1998's Whistleblower Protection Act. From there, the whistleblowers allege violations of their First, Fourth and Fifth Amendment rights, along with malicious prosecution, intentional infliction of emotional distress and abuse of process.

It will be interesting to see where this goes. The government likely won't be able to dismiss the suit quickly, but the plaintiffs are going to run into a ton of immunity claims that will be buttressed by invocations of national security concerns. Their lawyer -- Larry Klayman -- has occasionally displayed his inability to distinguish between actionable claims and conspiracy theories, a tendency that doesn't improve the plaintiffs' chances of succeeding. But of all the outcomes I imagined for the stories of Drake, Binney, et al, taking these agencies on directly in federal court wasn't one of them.

Filed Under: chris inglis, diane roark, doj, ed loomis, fbi, j. kirk wiebe, keith alexander, larry klayman, michael hayden, nsa, retaliation, robert mueller, surveillance, thinthread, thomas drake, trailblazer, whistleblowers, whistleblowing, william binney

Former NSA Insiders Ask President Obama To Let Them Brief Him On Everything Wrong With The NSA

from the that-would-be-interesting dept

As pretty much everyone has been sending over, a bunch of former NSA and intelligence community insiders who later went on to become whistleblowers (many of whom were then attacked or even prosecuted for their whistleblowing) have written quite an astounding open letter to President Obama, requesting that he allow them to brief him on the problems of the NSA. The letter goes a bit overboard on the rhetoric (which actually pulls away from its important underlying message, unfortunately), but the key points are clear. From what they've seen, they know that not only have the NSA's efforts violated the 4th Amendment and been ineffective, they have actually made it more difficult for the NSA to do its job properly.

What we tell you in this Memorandum is merely the tip of the iceberg. We are ready – if you are – for an honest conversation. That NSA’s bulk collection is more hindrance than help in preventing terrorist attacks should be clear by now despite the false claims and dissembling.

Much of the letter repeats things that were reported in the past, specifically in Jane Meyer's incredible New Yorker story about Thomas Drake (who signed this letter) from nearly three years ago. It talks about THINTHREAD, the program developed by William Binney (also signed on to the letter) as a system for sorting through information without violating the 4th Amendment, or the NSA's mandate. As was detailed both in Meyer's article, and again in this letter, THINTHREAD, which was developed prior to 9/11 for just a few million dollars, had built in a bunch of privacy and anonymity controls, but would also ease information sharing when necessary and appropriate. However, rather than use it, the NSA director at the time, Michael Hayden, chose to go with a plan from some outside defense contractors, costing billions of dollars, which didn't bother protecting the 4th Amendment or people's privacy. When the folks behind THINTHREAD reported this level of waste to the Inspector General, they were investigated, leading to various bogus charges against Drake (almost all of which were eventually dropped).

In the letter, Drake also discusses how, as the NSA exec in charge of figuring out the beset technology to fight against terrorism, he tried to get THINTHREAD reinstated. He also was asked to prepare a briefing for then head of the House Intelligence Committee, Saxby Chambliss (who's now a staunch NSA defender on the Senate Intelligence Committee) about why 9/11 happened. His initial report noted that the NSA knew all about the hijackers, but failed to share the info. He wasn't allowed to give that report.

At a SIGINT Leadership Team meeting in February 2002, SIGINT chief Maureen Baginski directed me to lead a NSA Statement-for-the-Record effort for a closed-door hearing scheduled by Sen. Chambliss for early March to discuss what NSA knew about the 9/11 hijackers and their plotting before 9/11.

As indicated above, the highly embarrassing answer was that NSA knew a great deal, but had not shared what it knew outside of NSA.

After a couple of weeks Baginski rejected my draft team Statement for the Record report and removed me from the task. When I asked her why, she said there was a ‘data integrity problem’ (not further explained) with my draft Statement for the Record. I had come upon additional damaging revelations. For example, NSA had the content of telephone calls between AA-77 hijacker Khalid al-Mihdhar in San Diego, CA, and the known al-Qaeda safe house switchboard in Yemen well before 9/11, and had not disseminated that information beyond NSA.

The letter goes on in great detail about the misleading claims by NSA defenders -- which we've discussed in the past -- that 9/11 could have been prevented if the bulk metadata collection was in use at the time.

It is unlikely that President Obama will respond to this in any manner. Over the past decade, the government worked hard to try to discredit Binner, Drake and the two other signatories, Edward Loomis and Kirk Wiebe (who both worked on THINTHREAD with Binney). Still, it's a powerful letter highlighting, yet again, how dysfunctional the NSA and the intelligence community are, how much of what they do seems to be driven by the corporate interests of defense contractors, and how little they seem to care about privacy or the Constitution.

Filed Under: barack obama, edward loomis, kirk wiebe, michael hayden, nsa, thinthread, thomas drake, william binney