Dark Days for Govt. Whistleblowers

by , January 04, 2012

This is the third profile in an occasional series about individuals taking on the Goliaths of war from inside the belly of the beast — Washington, D.C.

Tom Drake has the dubious distinction of being part of a long, and growing line of individuals who risked all to tell the truth, and by all measures, lost the gamble. He worked for years at the super-secret National Security Agency, testing ways for the government to monitor foreign communications in anticipation of terrorist plots and attacks. Then after 9/11, he found out the N.S.A was spying on Americans in a massive data mining operation.

Tom Drake (CBS)

He became what we would consider a whistleblower. The government all but labeled him a traitor. Drake called their bluff and in June 2011, the criminal charges against him – which included espionage – were reduced to one misdemeanor.* But now he is working full-time at an Apple Store, and by all accounts, the N.S.A is still spying on Americans.

“I saw, experienced government wrongdoing and malfeasance, directly and indirectly,” he told Antiwar in a recent interview. “Sure, there were people who told me you should have kept silent. I had a conscious. If I had done nothing, I would have been an accessory. I could not sit idly by while the Constitution of the United States was being subverted.”

Drake’s decision to complain internally, and then to Congress, and then eventually, to approach the press about the N.S.A’s massive data surveillance program, cost him an impressive decades-long career, which began as an intelligence specialist with the Air Force and ended as a senior executive with the N.S.A.

Today, he says that 9/11 exposed all of the secrecy and cynicism and venal impulses of a government he once defended and believed in. Though not outwardly analogous, his case is not so different from other post-9/11 whistleblowers and truth-tellers, like Anthony Shaffer or Peter Van Buren, who both lost their security clearances, their government careers sidelined as though they were suddenly “enemies of the state.”

“At one point they said what Tom had done was endangering soldiers’ lives,” said Jesselyn Radack, an attorney for the Washington DC-based Government Accountability Project, which defended Drake during the prosecution and has a long list of whistleblower clients (Radack is also a whistleblower, having exposed the FBI of committing ethics violations – and a cover-up – when it interrogated American John Walker Lindh without a lawyer present in 2001).

“They want to tag anyone who questions anything that happens as being unpatriotic. They are using laws that were meant to go after spies to go after whistleblowers. We have someone here who is trying to serve his country and blows the whistle on government illegality,” she said. “For the prosecution to say he is endangering lives is just offensive.”

Tom Drake and Jesselyn Radack as Drake accepts the 2011 Ridenhour Truth-Telling Prize

Drake’s problems began after he was hired in the late 1980’s to help N.S.A fix and update its software programs. One of his missions was to help drag the intelligence gathering systems into the 21st century, he said. After 9/11, when it was clear there was a massive failure of intelligence sharing, that goal became priority.

But to Drake’s and several of his colleagues’ dismay, the N.S.A marshaled all of its resources behind “Trailblazer,” a massive intelligence-gathering program built by private contractors, that in operation was crossing the legal line and sucking in massive amounts of private data held by U.S citizens. In other words, Drake contends, it was spying on Americans.

“It was unlawful,” Drake, 54, charged. “It did cause significant concern in critical circles of the government but they were overridden. I persisted … that was my moment, that was the moment for me where the United States government had crossed the Rubicon and a Pandora’s Box had been opened.”

Drake had been working with a team at the N.S.A that had been developing a competing program, “ThinThread,” that Drake and the others charge had built-in privacy protections and would have avoided all of the Constitutional concerns posed by Trailblazer. They also claimed ThinThread was more efficient, and worked better than the boondoggle that Trailblazer had become.

The disenchanted members of the team, as described in a lengthy New Yorker article by Jane Mayer last May, retired from the N.S.A in late 2001. As did Diane Roark, a staff member on the House Permanent Select Committee on Intelligence, which oversees the N.S.A. Roark told Mayer that N.S.A was trying “to hide stuff,” particularly about the warrantless surveillance of American citizens. “It was my duty to oppose it,” she told Mayer. “I’m not an attorney, but I thought there was no way it was Constitutional.”

When she realized that “she was practically alone in her outrage,” Roark left the committee and Washington, according to the Mayer’s account.

Meanwhile, the retired members of the team went to the Department of Defense Inspector General and filed a confidential complaint against what they said was the waste, fraud and abuse involved in the Trailblazer program. The final IG report, issued in 2005, is classified as secret, but Drake says it largely vindicates the charges against Trailblazer, though he laments the rebuke ultimately had no practical effect on the N.S.A program.

Drake, who was back-channeling his concerns to Roark, also began informing on the agency to Congress in their investigation of 9/11. He was shifted out of his job into a “less sensitive” office, and then eventually into a teaching position at the National Defense University. He had become a liability. Then, in December 2005, The New York Times blew the cover on the N.S.A warrantless wiretapping scandal. The retired N.S.A employees, plus Roark and Drake, said they had nothing to do with tipping off the NYT reporters, but felt the heat nonetheless, because, according to Drake, “(the N.S.A) wanted to fry the source for the New York Times article,” and the whistleblowers were already in the government’s sights.

Risking that, Drake began talking to a Baltimore Sun reporter Siobhan Gorman in 2006, which led to a series of critical stories about TrailBlazer. The government did not complain at the time, but it was a fateful decision that had set Drake on his current course. He insists he made it a ground rule at the very start of his discussions that he would never divulge classified information and to this day, maintains he never did.

His former colleagues’ homes – as well as Roark’s — were raided by federal agents in July 2007, but they were never charged with anything. The agents were supposedly looking for classified information, possibly hidden on their home computers, in their paper files, but really, it was “pure reprisals, pure retribution” for their complaints with the IG, said Drake. “The hatred was intense, but it was new in how far the government was willing to go.”

As for Drake, his Maryland home was raided on November 28, 2007. He lost his security clearance and was squeezed out of his government job. “They really thought I had something to do with the New York Times article.”

He cooperated with the government, handed over his computer passwords, all his personal files. The agents came back – two and a half years later — and claimed they had found classified documents in the boxes. They indicted him thusly under the 1917 Espionage Act. He was also charged with obstruction and for lying to the FBI, as officials accused him of deleting files on his computer ahead of the raid and lying about giving the Sun classified material.

Turns out the material found in the boxes were copies of some of the less sensitive information he had gathered for the IG report and was unaware of their classification. The other two questionable documents included a meeting schedule for Trailblazer’s progenitor program at the N.S.A, called “Turbulence” (for which the real classification seems to be in dispute), and another memo about Turbulence, which was declassified three months after Drake’s indictment.

Drake says he only deleted trash on his computers, and as for the Sun, no one has proved yet any of the information given to Gorman was classified.

The case crumbled a year after the indictment. All 10 felony counts against him were suddenly dropped in July, leaving one misdemeanor charge, for exceeding authorized use of his government computer. He pled guilty and is in the midst of doing 240 hours of community service. Some say he has already done enough – and more – service to the community.

Presiding Judge Richard J. Bennett was furious with the government’s behavior in the case, calling what they put Drake through as “four years of hell … It was not proper. It doesn’t pass the smell test.”

In addition to his job at the Apple Store and his community service, Drake is pursuing his PhD, and working on whistleblower advocacy issues with the Government Accountability Project.

Both Drake and Radack, who is director of GAP’s National Security and Human Rights Division, graciously sat down with Antiwar in December to talk about his case and the broader issue of government whistleblowers as “enemies of the state.”

They contend that the N.S.A continues to vacuum up millions of our personal electronic communications a day, storing them away to “drill down on it” if necessary, later.

Not much has changed, it seems, since Drake took his stand – if anything, it’s gotten worse, if ongoing reports, like The Washington Post’s “Top Secret America,” are to be believed.

Antiwar: what kind of impact did Tom’s case have in the realm of federal whistleblowing? Anything?

Jesselyn: This case was among the first that Obama brought in a spate of weak prosecutions of people who were really whistleblowers, and that has been a horrible trend to deal with, but I do, knock on wood, take something positive out of the fact that after the initial five people suffered criminal jeopardy, Obama has not used 793 (the Espionage Act) recently, which I think was a really crazy test case, using the Espionage Act to go after people who say stuff it doesn’t like. It appears the administration has backed off from that, but knock on wood, they could be just taking a hiatus.

(Former Director of Information Security Oversight Office) Bill Leonard filed his own complaint against his former office in the Justice Department saying the classification in (Tom’s) case was the worst, deliberate misclassification that he’s seen. I think the outcome of Tom’s case – it’s crumbling – coupled with Judge Bennett’s strong statements, coupled with Bill Leonard’s strong statements, hopefully has given (the administration) pause. But there are still currently three prosecutions, Bradley Manning and Steven Kim and Jeffery Sterling, that are ongoing. They, while not completely analogous to Tom’s case, bring up a number of the same issues – of people who thought they were seeing wrongdoing that should be made public, being prosecuted for allegedly disclosing that information. I think it will be yet another blot, another stain on Obama’s legacy, though this does not seem to be phasing him, really.

Antiwar: Tom, you had been working for the government for the better part of 30 years. What do you think about it now?

Tom: I fear for the republic. I’m having a hard time recognizing what’s left of my country.

Jesselyn: I think it’s unfortunate that people who fight for the truth are somehow painted as anti-government. When they raise objections to the wars we’re in, or to secret surveillance, or to torture by the government, that makes you anti-government. I consider myself very patriotic. Tom is very patriotic. A lot of people in the anti-war movement are very patriotic, many of them fought in wars themselves.

Tom: Remember, I took the oath twice as a non-commissioned officer and officer. You’re willing to make the ultimate sacrifice, and under article 92 of the (Uniform Code of Military Justice), you follow only lawful orders. You don’t question the oath, but you question the orders to make sure they are lawful. The last thing you are going to do is to follow unlawful orders.

Jesselyn: We don’t hate the government, we want an accountable government … we’d like the government if it functioned according to the Constitution and the rules of law it’s supposed to abide by …

Tom: As a former military officer, I can tell you, the last thing you want to see is war. If there was war, you knew you had failed, under the theory that going to war or exercising armed conflict was diplomacy by other means. That was the last thing you wanted to do. And yet this propensity to launch and ask questions later, to shoot first ask questions later — we’re in a very dangerous time, a very disturbing time.

… On top of that you have the rise of the national security state in ways that is an anathema to democracy, an anathema to openness and transparency. It’s not only a contradiction, but it is an open threat to our form of government because you have so much government off the books, so much of our government being conducted in secret.

Antiwar: Does the rampant data mining at N.S.A continue today?

Tom: Yes.

(He then points to recent accusations that the government is using a secret interpretation of Section 215 of the Patriot Act to obtain business records and other personal data of persons not directly tied to terrorism or national security)

A secret interpretation of law? … So now it’s gotten beyond signing statements. Now we have secret interpretation of the law.

…It’s truly Orwellian, meaning, you have a government that wants to protect itself under the veil of secrecy, it doesn’t want any accountability, it doesn’t want any oversight, no openness or transparency to speak of, increasingly shut off from the very public it’s supposed to serve. But yet it gives itself, through de-legitimate and illegitimate means, access to what is private data.

That’s what’s happened to this country – that anything that’s private, anything that’s is encrypted, anything that’s not publicly, directly accessible, is now fair game by virtue of the fact that it could be suspicious – so all is suspicious.

So what’s left in terms of privacy? …You cannot live, you cannot be free, you cannot pursue what you wish to pursue if you have no privacy.

Antiwar: What do you think about Bradley Manning’s case?

Tom: He still has rights whatever he is alleged to have done. He has rights. They probably do want to make an example of him.

What’s a man to do? What happens when you are exposed to things, you see things, what do you do, do you remain silent? Do you continue, having taken the oath? Do you look the other way, like the three monkeys?

Jesselyn: But I think in (Tom’s) case and in Manning’s, this is … severe overcharging by the government. And also, the government in both cases has not alleged that any harm has been done to the U.S or how a foreign nation has benefitted. If you are going to charge anyone under the Espionage Act, which Drake and Manning have been charged under, they need to show that person intended to harm the U.S or benefit a foreign nation.

Tom: One of the fundamental things that was drilled into us was you obey lawful orders. If you are exposed to an environment where there is a command failure … if you are exposed to things that raise serious questions about your own country, well …

(Manning) is a whistleblower.

Antiwar: Just so I have this straight: ‘Trailblazer’ is gone now, but the mission of massive data collection lives on?

Tom: Yes. But on a far vaster scale than what happened in the early months after 9/11.

In a secret world when you have access to all of this information through direct or indirect means, it is seductive and tempting to go for it, under the rubric, under the veneer of, under the label and mantle of, national security and control.

*Clarification: All of the original 10 felony charges (including 5 Espionage Act charges) were actually dropped as a condition for entering into a negotiated plea agreement to a minor misdemeanor of exceeding the authorized use of a computer.

Read more by Kelley B. Vlahos