New details about the NSA's post–Sept. 11 domestic surveillance programs have emerged in a stunning New Yorker article about NSA whistleblower Thomas Drake, who faces trial next month for allegedly leaking information about waste and mismanagement at the agency.
The article provides new insight into the warrantless surveillance program exposed by The New York Times in December 2005, including how top officials at the intelligence agency viewed the program. Former NSA Director Michael Hayden, in 2002, reportedly urged a congressional staffer who was concerned about the legality of the program to keep quiet about it, telling her that she could "yell and scream" about the program once the inevitable leaks about it occurred.
Asked why the NSA didn't employ privacy protections in its program, Hayden reportedly told the staffer, "We didn’t need them. We had the power," and admitted the government was not getting warrants for the domestic surveillance.
The New Yorker also spoke with a former head of the agency's Signals Intelligence Automation Research Center, or SARC, who invented software codenamed ThinThread that is believed to have been adapted by the NSA for the warrantless surveillance. The program had privacy protections built into it, but the official says he believes the NSA rejiggered the program to remove those protections, so that it could collect data on everyone, including people in the United States.
Thomas Drake, the focus of the article, is facing trial next month on charges that he violated the Espionage Act by retaining classified information. Ironically, he's not being charged for leaking classified information about the warrantless wiretapping program itself. Instead, the charges are based on five documents government investigators found in Drake's basement and e-mail archive that prosecutors say contain classified information.
The documents discuss another data-mining program dubbed Trailblazer that was deemed a failure and canceled before it was implemented. Drake allegedly provided information about waste and mismanagement of the Trailblazer program to a reporter at the Baltimore Sun in 2006 and 2007, but he maintains that he gave the reporter no classified information and disputes that the documents found in his possession contain classified material.
Drake, who left the NSA in 2008 and now works at an Apple Store outside Washington, D.C., is facing a possible sentence of 35 years if convicted. The government's decision to prosecute him is now resulting in further information about the NSA's illegal surveillance being exposed, as the New Yorker article shows.
Drake was a linguist and military crypto expert who had been an NSA contractor when he began a new staff job with the agency on the fateful morning of September 11, 2001, in the agency's Signals Intelligence Directorate.
As a contractor, Drake had become familiar with a data-mining program codenamed ThinThread, that had been tested within the NSA and could be deployed in Afghanistan, Pakistan and other regions where terrorism was prevalent. After 9/11, the program seemed ideal to address the suddenly urgent need to track down terrorist targets.
The program was created in the late '90s by Bill Binney, a mathematician and head of the NSA's SARC unit. It was designed to trap, map and mine vast amounts of data in real time to pick out relevant and suspicious communications, rather than requiring the data to be stored and sifted later. The New Yorker details it:
The program was “nearly perfect” except for one thing. It swooped up the data of Americans as well as foreigners and continued to intercept foreign communications as they traversed U.S.-based switches and networks. This violated U.S. law, which forbids the collection of domestic communication without a probable-cause warrant.
To solve this problem, Binney added privacy controls and an “anonymizing feature” to encrypt all American communications that ThinThread processed. The system would flag patterns that looked suspicious, which authorities could then use to obtain a warrant and decrypt the information.
ThinThread was ready to deploy in early 2001, but the NSA’s lawyers determined it violated Americans’ privacy, and NSA director Michael Hayden scrapped it. In its place, Hayden focused funding on a different program, codenamed Trailblazer, which the NSA contracted with outside defense companies, like SAIC, to produce.
That system ran into numerous problems and cost overruns, yet continued with Hayden’s support. Hayden’s deputy director and his chief of signals-intelligence programs worked at various times for SAIC, which received several Trailblazer contracts worth hundreds of millions of dollars. In 2006, after eating up some $1.2 billion, Trailblazer was finally deemed a flop and killed.
But in the meantime, just weeks after the 9/11 attacks, rumors began circulating within the NSA that the agency, with the approval of the White House, was violating the Foreign Intelligence Surveillance Act by conducting domestic surveillance. On Oct. 4, 2001, President Bush authorized the policy, which was operational by Oct. 6.
Drake said strange things began happening inside the NSA, with equipment suddenly being moved, and people who worked on FISA warrants being re-assigned. Drake saw this as a tipoff that the conventional legal surveillance process was being circumvented.
Binney, who wasn’t involved directly in the post-9/11 surveillance program, was certain that the rumored surveillance must be using components of the ThinThread program he helped design, but with the privacy protections now stripped out of it.
“It was my brainchild,” he told The New Yorker. “But they removed the protections, the anonymization process. When you remove that, you can target anyone.”
NSA people who were apprised of the program told him, “Can you believe they’re doing this? They’re getting billing records on U.S. citizens! They’re putting pen registers on everyone in the country!”
Drake heard from colleagues that the surveillance involved special "arrangements" that were being made with telecom and credit card companies to collect data on customers. Drake says he tried to raise concerns about the legality of the program with the NSA’s general counsel but was told not to worry about it, that it was legal and none of his business.
“The mantra was ‘Get the data!’” he told The New Yorker.
He discussed the issue with Maureen Baginski, his superior at the NSA and the third-highest-ranking official in the agency. She reportedly told him presciently that she feared the NSA would be “haunted” by the surveillance program. She left the agency in 2003 in part because she was uncomfortable with the program, The New Yorker reports.
Drake also confided in Diane Roark, a staff member on the House Intelligence Committee. She wrote a series of memos in February 2002 warning of the potential legal violations and gave them to Intelligence Committee staffers who worked for committee chairman Porter Goss and Democratic minority Whip Nancy Pelosi. But nothing happened.
Instead, Roark drew the wrath of Hayden who pleaded with her to stop agitating against the program and seemed to suggest to Roark he had assurances that the Supreme Court would back the program. The New Yorker:
Roark tried to contact Chief Justice William H. Rehnquist but got no response. When she contacted a judge on the FISA court to express concern that the NSA and government were doing an end-run around the court, she was referred to the Justice Department, which had approved the surveillance program in the first place.
“This was such a Catch-22,” Roark told The New Yorker. “There was no one to go to.”
Read the New Yorker story for more information.
Image: NSA.gov
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