The Secret Sharer

[Eugen Leitl]

http://www.newyorker.com/reporting/2011/05/23/110523fa_fact_mayer?currentPage=all

A Reporter at Large

The Secret Sharer

Is Thomas Drake an enemy of the state?

by Jane Mayer May 23, 2011

Drake, a former senior executive at the National Security Agency, faces some
of the gravest charges that can be brought against an American citizen.
Photograph by Martin Schoeller.

On June 13th, a fifty-four-year-old former government employee named Thomas
Drake is scheduled to appear in a courtroom in Baltimore, where he will face
some of the gravest charges that can be brought against an American citizen.
A former senior executive at the National Security Agency, the governmentbs
electronic-espionage service, he is accused, in essence, of being an enemy of
the state. According to a ten-count indictment delivered against him in
April, 2010, Drake violated the Espionage Actbthe 1917 statute that was used
to convict Aldrich Ames, the C.I.A. officer who, in the eighties and
nineties, sold U.S. intelligence to the K.G.B., enabling the Kremlin to
assassinate informants. In 2007, the indictment says, Drake willfully
retained top-secret defense documents that he had sworn an oath to protect,
sneaking them out of the intelligence agencybs headquarters, at Fort Meade,
Maryland, and taking them home, for the purpose of bunauthorized disclosure.b
The aim of this scheme, the indictment says, was to leak government secrets
to an unnamed newspaper reporter, who is identifiable as Siobhan Gorman, of
the Baltimore Sun. Gorman wrote a prize-winning series of articles for the
Sun about financial waste, bureaucratic dysfunction, and dubious legal
practices in N.S.A. counterterrorism programs. Drake is also charged with
obstructing justice and lying to federal law-enforcement agents. If he is
convicted on all counts, he could receive a prison term of thirty-five years.

The government argues that Drake recklessly endangered the lives of American
servicemen. bThis is not an issue of benign documents,b William M. Welch II,
the senior litigation counsel who is prosecuting the case, argued at a
hearing in March, 2010. The N.S.A., he went on, collects bintelligence for
the soldier in the field. So when individuals go out and they harm that
ability, our intelligence goes dark and our soldier in the field gets
harmed.b

Top officials at the Justice Department describe such leak prosecutions as
almost obligatory. Lanny Breuer, the Assistant Attorney General who
supervises the departmentbs criminal division, told me, bYou donbt get to
break the law and disclose classified information just because you want to.b
He added, bPolitics should play no role in it whatsoever.b

When President Barack Obama took office, in 2009, he championed the cause of
government transparency, and spoke admiringly of whistle-blowers, whom he
described as boften the best source of information about waste, fraud, and
abuse in government.b But the Obama Administration has pursued leak
prosecutions with a surprising relentlessness. Including the Drake case, it
has been using the Espionage Act to press criminal charges in five alleged
instances of national-security leaksbmore such prosecutions than have
occurred in all previous Administrations combined. The Drake case is one of
two that Obamabs Justice Department has carried over from the Bush years.

Gabriel Schoenfeld, a conservative political scientist at the Hudson
Institute, who, in his book bNecessary Secretsb (2009), argues for more
stringent protection of classified information, says, bIronically, Obama has
presided over the most draconian crackdown on leaks in our historybeven more
so than Nixon.b

One afternoon in January, Drake met with me, giving his first public
interview about this case. He is tall, with thinning sandy hair framing a
domed forehead, and he has the erect bearing of a member of the Air Force,
where he served before joining the N.S.A., in 2001. Obsessive, dramatic, and
emotional, he has an unwavering belief in his own rectitude. Sitting at a
Formica table at the Tastee Diner, in Bethesda, Drakebwho is a registered
Republicanbgroaned and thrust his head into his hands. bI actually had hopes
for Obama,b he said. He had not only expected the President to roll back the
prosecutions launched by the Bush Administration; he had thought that Bush
Administration officials would be investigated for overstepping the law in
the bwar on terror.b

bBut power is incredibly destructive,b Drake said. bItbs a weird,
pathological thing. I also think the intelligence community coC6pted Obama,
because hebs rather naC/ve about national security. Hebs accepted the fear and
secrecy. Webre in a scary space in this country.b

The Justice Departmentbs indictment narrows the frame around Drakebs actions,
focussing almost exclusively on his handling of what it claims are five
classified documents. But Drake sees his story as a larger tale of political
reprisal, one that he fears the government will never allow him to air fully
in court. bIbm a target,b he said. bIbve got a bullbs-eye on my back.b He
continued, bI did not tell secrets. I am facing prison for having raised an
alarm, period. I went to a reporter with a few key things: fraud, waste, and
abuse, and the fact that there were legal alternatives to the Bush
Administrationbs bdark sideb bbin particular, warrantless domestic spying by
the N.S.A.

The indictment portrays him not as a hero but as a treacherous man who
violated bthe government trust.b Drake said of the prosecutors, bThey can say
what they want. But the F.B.I. can find something on anyone.b

Steven Aftergood, the director of the Project on Government Secrecy at the
Federation of American Scientists, says of the Drake case, bThe government
wants this to be about unlawfully retained information. The defense,
meanwhile, is painting a picture of a public-interested whistle-blower who
struggled to bring attention to what he saw as multibillion-dollar
mismanagement.b Because Drake is not a spy, Aftergood says, the case will
btest whether intelligence officers can be convicted of violating the
Espionage Act even if their intent is pure.b He believes that the trial may
also test whether the nationbs expanding secret intelligence bureaucracy is
beyond meaningful accountability. bItbs a much larger debate than whether a
piece of paper was at a certain place at a certain time,b he says.

Jack Balkin, a liberal law professor at Yale, agrees that the increase in
leak prosecutions is part of a larger transformation. bWe are witnessing the
bipartisan normalization and legitimization of a national-surveillance
state,b he says. In his view, zealous leak prosecutions are consonant with
other political shifts since 9/11: the emergence of a vast new security
bureaucracy, in which at least two and a half million people hold
confidential, secret, or top-secret clearances; huge expenditures on
electronic monitoring, along with a reinterpretation of the law in order to
sanction it; and corporate partnerships with the government that have
transformed the counterterrorism industry into a powerful lobbying force.
Obama, Balkin says, has bsystematically adopted policies consistent with the
second term of the Bush Administration.b

On March 28th, Obama held a meeting in the White House with five advocates
for greater transparency in government. During the discussion, the President
drew a sharp distinction between whistle-blowers who exclusively reveal
wrongdoing and those who jeopardize national security. The importance of
maintaining secrecy about the impending raid on Osama bin Ladenbs compound
was likely on Obamabs mind. The White House has been particularly bedevilled
by the ongoing release of classified documents by WikiLeaks, the group led by
Julian Assange. Last year, WikiLeaks began releasing a vast trove of
sensitive government documents allegedly leaked by a U.S. soldier, Bradley
Manning; the documents included references to a courier for bin Laden who had
moved his family to Abbottabadbthe town where bin Laden was hiding out.
Manning has been charged with baiding the enemy.b

Danielle Brian, the executive director of the Project on Government
Oversight, attended the meeting, and said that Obamabs tone was generally
supportive of transparency. But when the subject of national-security leaks
came up, Brian said, bthe President shifted in his seat and leaned forward.
He said this may be where we have some differences. He said he doesnbt want
to protect the people who leak to the media war plans that could impact the
troops.b Though Brian was impressed with Obamabs over-all stance on
transparency, she felt that he might be misinformed about some of the current
leak cases. She warned Obama that prosecuting whistle-blowers would undermine
his legacy. Brian had been told by the White House to avoid any baskbs on
specific issues, but she told the President that, according to his own logic,
Drake was exactly the kind of whistle-blower who deserved protection.

As Drake tells it, his problems began on September 11, 2001. bThe next seven
weeks were crucial,b he said. bItbs foundational to why I am a criminal
defendant today.b

The morning that Al Qaeda attacked the U.S. was, coincidentally, Drakebs
first full day of work as a civilian employee at the N.S.A.ban agency that
James Bamford, the author of bThe Shadow Factoryb (2008), calls bthe largest,
most costly, and most technologically sophisticated spy organization the
world has ever known.b Drake, a linguist and a computer expert with a
background in military crypto-electronics, had worked for twelve years as an
outside contractor at the N.S.A. Under a program code-named Jackpot, he
focussed on finding and fixing weaknesses in the agencybs software programs.
But, after going through interviews and background checks, he began working
full time for Maureen Baginski, the chief of the Signals Intelligence
Directorate at the N.S.A., and the agencybs third-highest-ranking official.

Even in an age in which computerized feats are commonplace, the N.S.A.bs
capabilities are breathtaking. The agency reportedly has the capacity to
intercept and download, every six hours, electronic communications equivalent
to the contents of the Library of Congress. Three times the size of the
C.I.A., and with a third of the U.S.bs entire intelligence budget, the N.S.A.
has a five-thousand-acre campus at Fort Meade protected by iris scanners and
facial-recognition devices. The electric bill there is said to surpass
seventy million dollars a year.

Nevertheless, when Drake took up his post the agency was undergoing an
identity crisis. With the Cold War over, the agencybs mission was no longer
clear. As Drake puts it, bWithout the Soviet Union, it didnbt know what to
do.b Moreover, its technology had failed to keep pace with the shift in
communications to cellular phones, fibre-optic cable, and the Internet. Two
assessments commissioned by General Michael Hayden, who took over the agency
in 1999, had drawn devastating conclusions. One described the N.S.A. as ban
agency mired in bureaucratic conflictb and bsuffering from poor leadership.b
In January, 2000, the agencybs computer system crashed for three and a half
days, causing a virtual intelligence blackout.

Agency leaders decided to bstir up the gene pool,b Drake says. Although his
hiring was meant to signal fresh thinking, he was given a clumsy bureaucratic
title: Senior Change Leader/Chief, Change Leadership & Communications Office,
Signals Intelligence Directorate.

The 9/11 attacks caught the U.S.bs national-security apparatus by surprise.
N.S.A. officials were humiliated to learn that the Al Qaeda hijackers had
spent their final days, undetected, in a motel in Laurel, Marylandba few
miles outside the N.S.A.bs fortified gates. They had bought a folding knife
at a Target on Fort Meade Road. Only after the attacks did agency officials
notice that, on September 10th, their surveillance systems had intercepted
conversations in Afghanistan and Saudi Arabia warning that bthe match begins
tomorrowb and btomorrow is Zero Hour.b

Drake, hoping to help fight back against Al Qaeda, immediately thought of a
tantalizing secret project he had come across while working on Jackpot.
Code-named ThinThread, it had been developed by technological wizards in a
kind of Skunk Works on the N.S.A. campus. Formally, the project was
supervised by the agencybs Signals Intelligence Automation Research Center,
or SARC.

While most of the N.S.A. was reeling on September 11th, inside SARC the
horror unfolded balmost like an bI-told-you-sob moment,b according to J. Kirk
Wiebe, an intelligence analyst who worked there. bWe knew we werenbt keeping
up.b SARC was led by a crypto-mathematician named Bill Binney, whom Wiebe
describes as bone of the best analysts in history.b Binney and a team of some
twenty others believed that they had pinpointed the N.S.A.bs biggest
problembdata overloadband then solved it. But the agencybs management hadnbt
agreed.

Binney, who is six feet three, is a bespectacled sixty-seven-year-old man
with wisps of dark hair; he has the quiet, tense air of a preoccupied
intellectual. Now retired and suffering gravely from diabetes, which has
already claimed his left leg, he agreed recently to speak publicly for the
first time about the Drake case. When we met, at a restaurant near N.S.A.
headquarters, he leaned crutches against an extra chair. bThis is too serious
not to talk about,b he said.

Binney expressed terrible remorse over the way some of his algorithms were
used after 9/11. ThinThread, the blittle programb that he invented to track
enemies outside the U.S., bgot twisted,b and was used for both foreign and
domestic spying: bI should apologize to the American people. Itbs violated
everyonebs rights. It can be used to eavesdrop on the whole world.b According
to Binney, Drake took his side against the N.S.A.bs management and, as a
result, became a political target within the agency.

Binney spent most of his career at the agency. In 1997, he became the
technical director of the World Geopolitical and Military Analysis Reporting
Group, a division of six thousand employees which focusses on analyzing
signals intelligence. By the late nineties, the N.S.A. had become overwhelmed
by the amount of digital data it was collecting. Binney and his team began
developing codes aimed at streamlining the process, allowing the agency to
isolate useful intelligence. This was the beginning of ThinThread.

In the late nineties, Binney estimated that there were some two and a half
billion phones in the world and one and a half billion I.P. addresses.
Approximately twenty terabytes of unique information passed around the world
every minute. Binney started assembling a system that could trap and map all
of it. bI wanted to graph the world,b Binney said. bPeople said, bYou canbt
do thisbthe possibilities are infinite.b b But he argued that bat any given
point in time the number of atoms in the universe is big, but itbs finite.b

As Binney imagined it, ThinThread would correlate data from financial
transactions, travel records, Web searches, G.P.S. equipment, and any other
battributesb that an analyst might find useful in pinpointing bthe bad guys.b
By 2000, Binney, using fibre optics, had set up a computer network that could
chart relationships among people in real time. It also turned the N.S.A.bs
data-collection paradigm upside down. Instead of vacuuming up information
around the world and then sending it all back to headquarters for analysis,
ThinThread processed information as it was collectedbdiscarding useless
information on the spot and avoiding the overload problem that plagued
centralized systems. Binney says, bThe beauty of it is that it was
open-ended, so it could keep expanding.b

Pilot tests of ThinThread proved almost too successful, according to a former
intelligence expert who analyzed it. bIt was nearly perfect,b the official
says. bBut it processed such a large amount of data that it picked up more
Americans than the other systems.b Though ThinThread was intended to
intercept foreign communications, it continued documenting signals when a
trail crossed into the U.S. This was a big problem: federal law forbade the
monitoring of domestic communications without a court warrant. And a warrant
couldnbt be issued without probable cause and a known suspect. In order to
comply with the law, Binney installed privacy controls and added an
banonymizing feature,b so that all American communications would be encrypted
until a warrant was issued. The system would indicate when a pattern looked
suspicious enough to justify a warrant.

But this was before 9/11, and the N.S.A.bs lawyers deemed ThinThread too
invasive of Americansb privacy. In addition, concerns were raised about
whether the system would function on a huge scale, although preliminary tests
had suggested that it would. In the fall of 2000, Hayden decided not to use
ThinThread, largely because of his legal advisersb concerns. Instead, he
funded a rival approach, called Trailblazer, and he turned to private defense
contractors to build it. Matthew Aid, the author of a heralded 2009 history
of the agency, bThe Secret Sentry,b says, bThe resistance to ThinThread was
just standard bureaucratic politics. ThinThread was small, cost-effective,
easy to understand, and protected the identity of Americans. But it wasnbt
what the higher-ups wanted. They wanted a big machine that could make
Martinis, too.b

The N.S.A.bs failure to stop the 9/11 plot infuriated Binney: he believed
that ThinThread had been ready to deploy nine months earlier. Working with
N.S.A. counterterrorism experts, he had planned to set up his system at sites
where foreign terrorism was prevalent, including Afghanistan and Pakistan.
bThose bits of conversations they found too late?b Binney said. bThat would
have never happened. I had it managed in a way that would send out automatic
alerts. It would have been, Bang!b

Meanwhile, there was nothing to show for Trailblazer, other than mounting
bills. As the system stalled at the level of schematic drawings, top
executives kept shuttling between jobs at the agency and jobs with the
high-paying contractors. For a time, both Haydenbs deputy director and his
chief of signals-intelligence programs worked at SAIC, a company that won
several hundred million dollars in Trailblazer contracts. In 2006,
Trailblazer was abandoned as a $1.2-billion flop.

Soon after 9/11, Drake says, he prepared a short, classified summary
explaining how ThinThread bcould be put into the fight,b and gave it to
Baginski, his boss. But he says that she bwouldnbt respond electronically.
She just wrote in a black felt marker, bTheybve found a different solution.b
b When he asked her what it was, she responded, bI canbt tell you.b Baginski,
who now works for a private defense contractor, recalls her interactions with
Drake differently, but she declined to comment specifically.

In the weeks after the attacks, rumors began circulating inside the N.S.A.
that the agency, with the approval of the Bush White House, was violating the
Foreign Intelligence Surveillance Actbthe 1978 law, known as FISA, that bars
domestic surveillance without a warrant. Years later, the rumors were proved
correct. In nearly total secrecy, and under pressure from the White House,
Hayden sanctioned warrantless domestic surveillance. The new policy, which
lawyers in the Justice Department justified by citing President Bushbs
executive authority as Commander-in-Chief, contravened a century of
constitutional case law. Yet, on October 4, 2001, Bush authorized the policy,
and it became operational by October 6th. Bamford, in bThe Shadow Factory,b
suggests that Hayden, having been overcautious about privacy before 9/11,
swung to the opposite extreme after the attacks. Hayden, who now works for a
security-consulting firm, declined to respond to detailed questions about the
surveillance program.

When Binney heard the rumors, he was convinced that the new
domestic-surveillance program employed components of ThinThread: a
bastardized version, stripped of privacy controls. bIt was my brainchild,b he
said. bBut they removed the protections, the anonymization process. When you
remove that, you can target anyone.b He said that although he was not bread
inb to the new secret surveillance program, bmy people were brought in, and
they told me, bCan you believe theybre doing this? Theybre getting billing
records on U.S. citizens! Theybre putting pen registersb bblogs of dialled
phone numbersbb bon everyone in the country!b b

Drake recalled that, after the October 4th directive, bstrange things were
happening. Equipment was being moved. People were coming to me and saying,
bWebre now targeting our own country!b b Drake says that N.S.A. officials who
helped the agency obtain FISA warrants were suddenly reassigned, a tipoff
that the conventional process was being circumvented. He added, bI was
concerned that it was illegal, and none of it was necessary.b In his view,
domestic data mining bcould have been done legallyb if the N.S.A. had
maintained privacy protections. bBut they didnbt want an accountable system.b

Aid, the author of the N.S.A. history, suggests that ThinThreadbs privacy
protections interfered with top officialsb secret objectivebto pick American
targets by name. bThey wanted selection, not just collection,b he says.

A former N.S.A. official expressed skepticism that Drake cared deeply about
the constitutional privacy issues raised by the agencybs surveillance
policies. The official characterizes him as a bureaucrat driven by resentment
of a rival projectbTrailblazerband calls his story brevisionist history.b But
Drake says that, in the fall of 2001, he told Baginski he feared that the
agency was breaking the law. He says that to some extent she shared his
views, and later told him she feared that the agency would be bhauntedb by
the surveillance program. In 2003, she left the agency for the F.B.I., in
part because of her discomfort with the surveillance program. Drake says
that, at one point, Baginski told him that if he had concerns he should talk
to the N.S.A.bs general counsel. Drake claims that he did, and that the
agencybs top lawyer, Vito Potenza, told him, bDonbt worry about it. Webre the
executive agent for the White House. Itbs all been scrubbed. Itbs legal.b
When he pressed further, Potenza told him, bItbs none of your business.b
(Potenza, who is now retired, declined to comment.)

Drake says, bI feared for the future. If Pandorabs box was opened, what would
the government become?b He was not about to drop the matter. Matthew Aid, who
describes Drake as bbrilliant,b says that bhe has sort of a Jesus
complexbonly he can see the way things are. Everyone else is mentally
deficient, or in someonebs pocket.b Drakebs history of whistle-blowing
stretches back to high school, in Manchester, Vermont, where his father, a
retired Air Force officer, taught. When drugs infested the school, Drake
became a police informant. And Watergate, which occurred while he was a
student, taught him bthat no one is above the law.b

Drake says that in the Air Force, where he learned to capture electronic
signals, the FISA law bwas drilled into us.b He recalls, bIf you accidentally
intercepted U.S. persons, there were special procedures to expunge it.b The
procedures had been devised to prevent the recurrence of past abuses, such as
Nixonbs use of the N.S.A. to spy on his political enemies.

Drake didnbt know the precise details, but he sensed that domestic spying
bwas now being done on a vast level.b He was dismayed to hear from N.S.A.
colleagues that barrangementsb were being made with telecom and credit-card
companies. He added, bThe mantra was bGet the data!b b The transformation of
the N.S.A., he says, was so radical that bit wasnbt just that the brakes came
off after 9/11bwe were in a whole different vehicle.b

Few people have a precise knowledge of the size or scope of the N.S.A.bs
domestic-surveillance powers. An agency spokesman declined to comment on how
the agency bperforms its mission,b but said that its activities are
constitutional and subject to bcomprehensive and rigorousb oversight. But
Susan Landau, a former engineer at Sun Microsystems, and the author of a new
book, bSurveillance or Security?,b notes that, in 2003, the government placed
equipment capable of copying electronic communications at locations across
America. These installations were made, she says, at bswitching officesb that
not only connect foreign and domestic communications but also handle purely
domestic traffic. As a result, she surmises, the U.S. now has the capability
to monitor domestic traffic on a huge scale. bWhy was it done this way?b she
asks. bOne can come up with all sorts of nefarious reasons, but one doesnbt
want to think that way about our government.b

Binney, for his part, believes that the agency now stores copies of all
e-mails transmitted in America, in case the government wants to retrieve the
details later. In the past few years, the N.S.A. has built enormous
electronic-storage facilities in Texas and Utah. Binney says that an N.S.A.
e-mail database can be searched with bdictionary selection,b in the manner of
Google. After 9/11, he says, bGeneral Hayden reassured everyone that the
N.S.A. didnbt put out dragnets, and that was true. It had no needbit was
getting every fish in the sea.b

Binney considers himself a conservative, and, as an opponent of big
government, he worries that the N.S.A.bs data-mining program is so extensive
that it could help bcreate an Orwellian state.b Whereas wiretap surveillance
requires trained human operators, data mining is automated, meaning that the
entire country can be watched. Conceivably, U.S. officials could bmonitor the
Tea Party, or reporters, whatever group or organization you want to target,b
he says. bItbs exactly what the Founding Fathers never wanted.b

On October 31, 2001, soon after Binney concluded that the N.S.A. was headed
in an unethical direction, he retired. He had served for thirty-six years.
His wife worked there, too. Wiebe, the analyst, and Ed Loomis, a computer
scientist at SARC, also left. Binney said of his decision, bI couldnbt be an
accessory to subverting the Constitution.b

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 modelled herself on Machiavellibs maxim that it is
better to be feared than loved. Within the N.S.A.bs upper ranks she was
widely resented. A former top N.S.A. official says of her, bIn meetings, she
would just say, bYoubre lying.b b

Roark agrees that she distrusted the N.S.A.bs managers. bI asked very tough
questions, because they were trying to hide stuff,b she says. bFor instance,
I wasnbt supposed to know about the warrantless surveillance. They were all
determined that no one else was going to tell them what to do.b

Like Drake and Binney, Roark was a registered Republican, skeptical about
bureaucracy but strong on national defense. She had a knack for recruiting
sources at the N.S.A. One of them was Drake, who introduced himself to her in
2000, after she visited N.S.A. headquarters and gave a stinging talk on the
agencybs failings; she also established relationships with Binney and Wiebe.
Hayden was furious about this back channel. After learning that Binney had
attended a meeting with Roark at which N.S.A. employees complained about
Trailblazer, Hayden dressed down the critics. He then sent out an agency-wide
memo, in which he warned that several bindividuals, in a session with our
congressional overseers, took a position in direct opposition to one that we
had corporately decided to follow. . . . Actions contrary to our decisions
will have a serious adverse effect on our efforts to transform N.S.A., and I
cannot tolerate them.b Roark says of the memo, bHayden brooked no opposition
to his favorite people and programs.b

Roark, who had substantial influence over N.S.A. budget appropriations, was
an early champion of Binneybs ThinThread project. She was dismayed, she says,
to hear that it had evolved into a means of domestic surveillance, and felt
personally responsible. Her oversight committee had been created after
Watergate specifically to curb such abuses. bIt was my duty to oppose it,b
she told me. bThat is why oversight existed, so that these things didnbt
happen again. Ibm not an attorney, but I thought that there was no way it was
constitutional.b Roark recalls thinking that, if N.S.A. officials were
breaking the law, she was bgoing to fry them.b

She soon learned that she was practically alone in her outrage. Very few
congressional leaders had been briefed on the program, and some were
apparently going along with it, even if they had reservations. Starting in
February, 2002, Roark says, she wrote a series of memos warning of potential
illegalities and privacy breaches and handed them to the staffers for Porter
Goss, the chairman of her committee, and Nancy Pelosi, its ranking Democrat.
But nothing changed. (Pelosibs spokesman denied that she received such memos,
and pointed out that a year earlier Pelosi had written to Hayden and
expressed grave concerns about the N.S.A.bs electronic surveillance.)

Roark, feeling powerless, retired. Before leaving Washington, though, she
learned that Hayden, who knew of her strong opposition to the surveillance
program, wanted to talk to her. They met at N.S.A. headquarters on July 15,
2002. According to notes that she made after the meeting, Hayden pleaded with
her to stop agitating against the program. He conceded that the policy would
leak at some point, and told her that when it did she could byell and screamb
as much as she wished. Meanwhile, he wanted to give the program more time.
She asked Hayden why the N.S.A. had chosen not to include privacy protections
for Americans. She says that he bkept not answering. Finally, he mumbled, and
looked down, and said, bWe didnbt need them. We had the power.b He didnbt
even look me in the eye. I was flabbergasted.b She asked him directly if the
government was getting warrants for domestic surveillance, and he admitted
that it was not.

In an e-mail, Hayden confirmed that the meeting took place, but said that he
recalled only its bbroad outlines.b He noted that Roark was not bcleared to
know about the expanded surveillance program, so I did not go into great
detail.b He added, bI assured her that I firmly believed that what N.S.A. was
doing was effective, appropriate, and lawful. I also reminded her that the
programbs success depended on it remaining secret, that it was appropriately
classified, and that any public discussion of it would have to await a later
day.b

During the meeting, Roark says, she warned Hayden that no court would uphold
the program. Curiously, Hayden responded that he had already been assured by
unspecified individuals that he could count on a majority of bthe nine
votesbban apparent reference to the Supreme Court. According to Roarkbs
notes, Hayden told her that such a vote might even be 7b2 in his favor.

Roark couldnbt believe that the Supreme Court had been adequately informed of
the N.S.A.bs transgressions, and she decided to alert Chief Justice William
H. Rehnquist, sending a message through a family friend. Once again, there
was no response. She also tried to contact a judge on the FISA court, in
Washington, which adjudicates requests for warrants sanctioning domestic
surveillance of suspected foreign agents. But the judge had her assistant
refer the call to the Department of Justice, which had approved the secret
program in the first place. Roark says that she even tried to reach David
Addington, the legal counsel to Vice-President Dick Cheney, who had once been
her congressional colleague. He never called back, and Addington was
eventually revealed to be one of the prime advocates for the surveillance
program.

bThis was such a Catch-22,b Roark says. bThere was no one to go to.b In
October, 2003, feeling bprofoundly depressed,b she left Washington and moved
to a small town in Oregon.

Drake was still working at the N.S.A., but he was secretly informing on the
agency to Congress. In addition to briefing Roark, he had become an anonymous
source for the congressional committees investigating intelligence failures
related to 9/11. He provided Congress with top-secret documents chronicling
the N.S.A.bs shortcomings. Drake believed that the agency had failed to feed
other intelligence agencies critical information that it had collected before
the attacks. Congressional investigators corroborated these criticisms,
though they found greater lapses at the C.I.A. and the F.B.I.

Around this time, Drake recalls, Baginski warned him, bBe careful,
Tombtheybre looking for leakers.b He found this extraordinary, and asked
himself, bTelling the truth to congressional oversight committees is
leaking?b But the N.S.A. has a rule requiring employees to clear any contact
with Congress, and in the spring of 2002 Baginski told Drake, bItbs time for
you to find another job.b He soon switched to a less sensitive post at the
agency, the first of several.

As for Binney, he remained frustrated even in retirement about what he
considered the misuse of ThinThread. In September, 2002, he, Wiebe, Loomis,
and Roark filed what they thought was a confidential complaint with the
Pentagonbs Inspector General, extolling the virtues of the original
ThinThread project and accusing the N.S.A. of wasting money on Trailblazer.
Drake did not put his name on the complaint, because he was still an N.S.A.
employee. But he soon became involved in helping the others, who had become
friends. He obtained documents aimed at proving waste, fraud, and abuse in
the Trailblazer program.

The Inspector Generalbs report, which was completed in 2005, was classified
as secret, so only a few insiders could read what Drake describes as a
scathing document. Possibly the only impact of the probe was to hasten the
end of Trailblazer, whose budget overruns had become indisputably staggering.
Though Hayden acknowledged to a Senate committee that the costs of the
Trailblazer project bwere greater than anticipated, to the tune of, I would
say, hundreds of millions,b most of the scandalbs details remained hidden
from the public.

In December, 2005, the N.S.A.bs culture of secrecy was breached by a stunning
leak. The Times reporters James Risen and Eric Lichtblau revealed that the
N.S.A. was running a warrantless wiretapping program inside the United
States. The paperbs editors had held onto the scoop for more than a year,
weighing the propriety of publishing it. According to Bill Keller, the
executive editor of the Times, President Bush pleaded with the paperbs
editors to not publish the story; Keller told New York that bthe basic
message was: Youbll have blood on your hands.b After the paper defied the
Administration, Bush called the leak ba shameful act.b At his command,
federal agents launched a criminal investigation to identify the paperbs
source.

The Times story shocked the country. Democrats, including then Senator Obama,
denounced the program as illegal and demanded congressional hearings. A FISA
court judge resigned in protest. In March, 2006, Mark Klein, a retired A.T. &
T. employee, gave a sworn statement to the Electronic Frontier Foundation,
which was filing a lawsuit against the company, describing a secret room in
San Francisco where powerful Narus computers appeared to be sorting and
copying all of the telecombs Internet trafficbboth foreign and domestic. A
high-capacity fibre-optic cable seemed to be forwarding this data to a
centralized location, which, Klein surmised, was N.S.A. headquarters. Soon,
USA Today reported that A.T. & T., Verizon, and BellSouth had secretly opened
their electronic records to the government, in violation of communications
laws. Legal experts said that each instance of spying without a warrant was a
serious crime, and that there appeared to be hundreds of thousands of
infractions.

President Bush and Administration officials assured the American public that
the surveillance program was legal, although new legislation was eventually
required to bring it more in line with the law. They insisted that the
traditional method of getting warrants was too slow for the urgent threats
posed by international terrorism. And they implied that the only domestic
surveillance taking place involved tapping phone calls in which one speaker
was outside the U.S.

Drake says of Bush Administration officials, bThey were lying through their
teeth. They had chosen to go an illegal route, and it wasnbt because they had
no other choice.b He also believed that the Administration was covering up
the full extent of the program. bThe phone calls were the tip of the iceberg.
The really sensitive stuff was the data mining.b He says, bI was faced with a
crisis of conscience. What do I dobremain silent, and complicit, or go to the
press?b

Drake has a wife and five sons, the youngest of whom has serious health
problems, and so he agonized over the decision. He researched the relevant
legal statutes and concluded that if he spoke to a reporter about
unclassified matters the only risk he ran was losing his job. N.S.A. policy
forbids initiating contact with the press. bI get that itbs grounds for bWe
have to let you go,b b he says. But he decided that he was willing to lose
his job. bThis was a violation of everything I knew and believed as an
American. We were making the Nixon Administration look like pikers.b

Drake got in touch with Gorman, who covered the N.S.A. for the Baltimore Sun.
He had admired an article of hers and knew that Roark had spoken to her
previously, though not about anything classified. He got Gormanbs contact
information from Roark, who warned him to be careful. She knew that in the
past the N.S.A. had dealt harshly with people who embarrassed it.

Drake set up a secure Hushmail e-mail account and began sending Gorman
anonymous tips. Half in jest, he chose the pseudonym The Shadow Knows. He
says that he insisted on three ground rules with Gorman: neither he nor she
would reveal his identity; he wouldnbt be the sole source for any story; he
would not supply her with classified information. But a year into the
arrangement, in February, 2007, Drake decided to blow his cover, surprising
Gorman by showing up at the newspaper and introducing himself as The Shadow
Knows. He ended up meeting with Gorman half a dozen times. But, he says, bI
never gave her anything classified.b Gorman has not been charged with
wrongdoing, and declined, through her lawyer, Laura Handman, to comment,
citing the pending trial.

Starting on January 29, 2006, Gorman, who now works at the Wall Street
Journal, published a series of articles about problems at the N.S.A.,
including a story describing Trailblazer as an expensive fiasco. On May 18,
2006, the day that Hayden faced Senate confirmation hearings for a new
postbthe head of the C.I.A.bthe Sun published Gormanbs exposC) on ThinThread,
which accused the N.S.A. of rejecting an approach that protected Americansb
privacy. Hayden, evidently peeved, testified that intelligence officers
deserved bnot to have every action analyzed, second-guessed, and criticized
on the front pages of the newspapers.b

At the time, the government did not complain that the Sun had crossed a legal
line. It did not contact the paperbs editors or try to restrain the paper
from publishing Gormanbs work. A former N.S.A. colleague of Drakebs says he
believes that the Sun stories revealed government secrets. Others disagree.
Steven Aftergood, the secrecy expert, says that the articles bdid not damage
national security.b

Matthew Aid argues that the material Drake provided to the Sun should not
have been highly classifiedbif it wasband in any case only highlighted that
bthe N.S.A. was a management nightmare, which wasnbt a secret in Washington.b
In his view, Drake bwas just saying, bWebre not doing our job, and itbs
having a deleterious effect on mission performance.b He was right, by the
way.b The Sun series, Aid says, was bembarrassing to N.S.A. management, but
embarrassment to the U.S. government is not a criminal offense in this
country.b (Aid has a stake in this debate. In 1984, when he was in the Air
Force, he spent several months in the stockade for having stored classified
documents in a private locker. The experience, he says, sensitized him to
issues of government secrecy.)

While the Sun was publishing its series, twenty-five federal agents and five
prosecutors were struggling to identify the Timesb source. The team had
targeted some two hundred possible suspects, but had found no culprits. The
Sun series attracted the attention of the investigators, who theorized that
its source might also have talked to the Times. This turned out not to be
true. Nevertheless, the investigators quickly homed in on the Trailblazer
critics. bItbs sad,b an intelligence expert says. bI think they were aiming
at the Times leak and found this instead.b

Roark was an obvious suspect for the Times leak. Everyone from Hayden on down
knew that she had opposed the surveillance program. After the article
appeared, she says, bI was waiting for the shoe to drop.b The F.B.I.
eventually contacted her, and in February, 2007, she and her attorney met
with the prosecutor then in charge, Steven Tyrrell, who was the head of the
fraud section at the Justice Department. Roark signed an affidavit saying
that she was not a source for the Times story or for bState of War,b a
related book that James Risen wrote. She also swore that she had no idea who
the source was. She says of the experience, bIt was an interrogation, not an
interview. They treated me like a target.b

Roark recalls that the F.B.I. agents tried to force her to divulge the
identity of her old N.S.A. informants. They already seemed to know about
Drake, Binney, and Wiebebperhaps from the Inspector Generalbs report. She
refused to coC6perate, arguing that it was improper for agents of the
executive branch to threaten a congressional overseer about her sources. bI
had the sense that N.S.A. was egging the F.B.I. on,b she says. bIbd gotten
the N.S.A. so many timesbthey were going to get me. The N.S.A. hated me.b
(The N.S.A. and the Justice Department declined to comment on the
investigations.)

In the months that followed, Roark heard nothing. Finally, her lawyer placed
the case in her bdead file.b

On July 26, 2007, at 9 A.M. Eastern Standard Time, armed federal agents
simultaneously raided the houses of Binney, Wiebe, and Roark. (At Roarkbs
house, in Oregon, it was six obclock.) Binney was in the shower when agents
arrived, and recalls, bThey went right upstairs to the bathroom and held guns
on me and my wife, right between the eyes.b The agents took computer
equipment, a copy of the Inspector General complaint and a copy of a
commercial pitch that Binney had written with Wiebe, Loomis, and Roark. In
2001, the N.S.A. indicated to Binney that he could pursue commercial projects
based on ThinThread. He and the others thought that aspects of the software
could be used to help detect Medicare fraud.

Binney professed his innocence, and he says that the agents told him, bWe
think youbre lying. You need to implicate someone. b He believed that they
were trying to get him to name Roark as the Timesb source. He suggested that
if they were looking for criminal conspirators they should focus on Bush and
Hayden for allowing warrantless surveillance. Binney recalls an agent
responding that such brazen spying didnbt happen in America. Looking over the
rims of his owlish glasses, Binney replied, bOh, really?b

Roark was sleeping when the agents arrived, and didnbt hear them until bit
sounded as if they were going to pull the house down, they were rattling it
so badly.b They took computers and a copy of the same commercial pitch. Her
son had been interested in collaborating on the venture, and he, too, became
a potential target. bThey believed everybody was conspiring,b Roark says.
bFor years, I couldnbt talk to my own son without worrying that theybd say I
was trying to influence his testimony.b Although she has been fighting
cancer, she has spoken with him only sparingly since the raid.

The agents seemed to think that the commercial pitch contained classified
information. Roark was shaken: she and the others thought they had edited it
scrupulously to insure that it did not. Agents also informed her that a few
scattered papers in her old office files were classified. After the raid, she
called her lawyer and asked, bIf therebs a disagreement on classification,
does intent mean anything?b The question goes to the heart of the Drake case.

Roark, who always considered herself ba law-and-order person,b said of the
raid, bThis changed my faith.b Eventually, the prosecution offered her a plea
bargain, under which she would plead guilty to perjury, for ostensibly lying
to the F.B.I. about press leaks. The prosecutors also wanted her to testify
against Drake. Roark refused. bIbm not going to plead guilty to deliberately
doing anything wrong,b she told them. bAnd I canbt testify against Tom
because I donbt know that he did anything wrong. Whatever Tom revealed, I am
sure that he did not think it was classified.b She says, bI didnbt think the
system was perfect, but I thought theybd play fair with me. They didnbt. I
felt it was retribution.b

Wiebe, the retired analyst, was the most surprised by the raidbhe had not yet
been contacted in connection with the investigation. He recalls that agents
locked his two Pembroke Welsh corgis in a bathroom and commanded his daughter
and his mother-in-law, who was in her bathrobe, to stay on a couch while they
searched his house. He says, bI feel Ibm living in the very country I worked
for years to defeat: the Soviet Union. Webre turning into a police state.b
Like Roark, he says of the raid, bIt was retribution for our filing the
Inspector General complaint.b

Under the law, such complaints are confidential, and employees who file them
are supposed to be protected from retaliation. Itbs unclear if the
Trailblazer complaint tipped off authorities, but all four people who signed
it became targets. Jesselyn Radack, of the Government Accountability Project,
a whistle-blower advocacy group that has provided legal support to Drake,
says of his case, bItbs the most severe form of whistle-blower retaliation I
have ever seen.b

A few days after the raid, Drake met Binney and Wiebe for lunch, at a tavern
in Glenelg, Maryland. bI had a pretty good idea I was next,b Drake says. But
it wasnbt until the morning of November 28, 2007, that he saw armed agents
streaming across his lawn. Though Drake was informed of his right to remain
silent, he viewed the raid as a fresh opportunity to blow the whistle. He
spent the day at his kitchen table, without a lawyer, talking. He brought up
Trailblazer, but found that the investigators werenbt interested in the
details of a defunct computer system, or in cost overruns, or in the
constitutional conflicts posed by warrantless surveillance. Their focus was
on the Times leak. He assured them that he wasnbt the source, but he
confirmed his contact with the Sun, insisting that he had not relayed any
classified information. He also disclosed his computer password. The agents
bagged documents, computers, and books, and removed eight or ten boxes of
office files from his basement. bI felt incredibly violated,b he says.

For four months, Drake continued coC6perating. He admitted that he had given
Gorman information that he had cut and pasted from secret documents, but
stressed that he had not included anything classified. He acknowledged
sending Gorman hundreds of e-mails. Then, in April, 2008, the F.B.I. told him
that someone important wanted to meet with him, at a secure building in
Calverton, Maryland. Drake agreed to the appointment. Soon after he showed
up, he says, Steven Tyrrell, the prosecutor, walked in and told him, bYoubre
screwed, Mr. Drake. We have enough evidence to put you away for most of the
rest of your natural life.b

Prosecutors informed Drake that they had found classified documents in the
boxes in his basementbthe indictment cites threeband discovered two more in
his e-mail archive. They also accused him of shredding other documents, and
of deleting e-mails in the months before he was raided, in an attempt to
obstruct justice. Further, they said that he had lied when he told federal
agents that he hadnbt given Gorman classified information.

bThey had made me into an enemy of the state just by saying I was,b Drake
says. The boxes in his basement contained copies of some of the less
sensitive material that he had procured for the Inspector Generalbs
Trailblazer investigation. The Inspector Generalbs Web site directs
complainants to keep copies. Drake says that if the boxes did, in fact,
contain classified documents he didnbt realize it. (The indictment emphasizes
that he bwillfullyb retained documents.) The two documents that the
government says it extracted from his e-mail archive were even less
sensitive, Drake says. Both pertained to a successor to Trailblazer,
code-named Turbulence. One document listed a schedule of meetings about
Turbulence. It was marked bunclassified/for official use onlyb and posted on
the N.S.A.bs internal Web site. The government has since argued that the
schedule should have been classified, and that Drake should have known this.
The other document, which touted the success of Turbulence, was officially
declassified in July, 2010, three months after Drake was indicted. bAfter
charging him with having this ostensibly serious classified document, the
government waved a wand and decided it wasnbt so classified after all,b
Radack says.

Clearly, the intelligence community hopes that the Drake case will send a
message about the gravity of exposing government secrets. But Drakebs lawyer,
a federal public defender named James Wyda, argued in court last spring that
bthere have never been two documents so benign that are the subject of this
kind of prosecution against a client whose motives are as salutary as Tombs.b

Drake insists, too, that the only computer files he destroyed were routine
trash: bI held then, and I hold now, I had nothing to destroy.b Drake, who
left the N.S.A. in 2008, and now works at an Apple Store outside Washington,
asks, bWhy didnbt I erase everything on my computer, then? I know how to do
it. They found what they found.b

Not everyone familiar with Drakebs case is moved by his plight. A former
federal official knowledgeable about the case says, bTo his credit, he tried
to raise these issues, and, to an extent, they were dealt with. But who died
and left him in charge?b

In May, 2009, Tyrrell proposed a plea bargain: if Drake pleaded guilty to one
count of conspiring to violate the Espionage Act and agreed to coC6perate
against the others, he would get a maximum of five years in prison. bThey
wanted me to reveal a conspiracy that didnbt exist,b Drake says. bIt was all
about the Times, but I had no knowledge of the leak.b Drake says that he told
prosecutors, bI refuse to plea-bargain with the truth.b

That June, Drake learned that Tyrrell was leaving the government. Tyrrell was
a Republican, and Drake was hopeful that a prosecutor appointed by the Obama
Administration would have a different approach. But Drake was dismayed to
learn that Tyrrellbs replacement, William Welch, had just been transferred
from the top spot in the Justice Departmentbs public-integrity section, after
an overzealous prosecution of Ted Stevens, the Alaska senator. A judge had
thrown out Stevensbs conviction, and, at one point, had held Welch in
contempt of court. (Welch declined to comment.)

In April, 2010, Welch indicted Drake, shattering his hope for a reprieve from
the Obama Administration. But the prosecutionbs case had shrunk dramatically
from the grand conspiracy initially laid out by Tyrrell. (Welch accidentally
sent the defense team an early draft of the indictment, revealing how the
case had changed.) Drake was no longer charged with leaking classified
documents, or with being part of a conspiracy. He is still charged with
violating the Espionage Act, but now merely because of unauthorized bwillful
retentionb of the five documents. Drake says that when he learned that, even
with the reduced charges, he still faced up to thirty-five years in prison,
he bwas completely aghast.b

Morton Halperin, of the Open Society Institute, says that the reduced charges
make the prosecution even more outlandish: bIf Drake is convicted, it means
the Espionage Law is an Official Secrets Act.b Because reporters often retain
unauthorized defense documents, Drakebs conviction would establish a legal
precedent making it possible to prosecute journalists as spies. bIt poses a
grave threat to the mechanism by which we learn most of what the government
does,b Halperin says.

The Espionage Act has rarely been used to prosecute leakers and
whistle-blowers. Drakebs case is only the fourth in which the act has been
used to indict someone for mishandling classified material. bIt was meant to
deal with classic espionage, not publication,b Stephen Vladeck, a law
professor at American University who is an expert on the statute, says.

The first attempt to apply the law to leakers was the aborted prosecution, in
1973, of Daniel Ellsberg, a researcher at the RAND Corporation who was
charged with disclosing the Pentagon Papersba damning secret history of the
Vietnam War. But the case was dropped, owing, in large part, to prosecutorial
misconduct. The second such effort was the case of Samuel L. Morison, a naval
intelligence officer who, in 1985, was convicted for providing U.S.
photographs of a Soviet ship to Janebs Defence Weekly. Morison was later
pardoned by Bill Clinton. The third case was the prosecution, in 2005, of a
Defense Department official, Lawrence Franklin, and two lobbyists for the
American-Israel Public Affairs Committee. Franklin pleaded guilty to a lesser
charge, and the case against the lobbyists collapsed after the presiding
judge insisted that prosecutors establish criminal intent. Unable to prove
this, the Justice Department abandoned the case, amid criticism that the
government had overreached.

Drakebs case also raises questions about double standards. In recent years,
several top officials accused of similar misdeeds have not faced such serious
charges. John Deutch, the former C.I.A. director, and Alberto Gonzales, the
former Attorney General, both faced much less stringent punishment after
taking classified documents home without authorization. In 2003, Sandy
Berger, Clintonbs national-security adviser, smuggled classified documents
out of a federal building, reportedly by hiding them in his pants. It was
treated as a misdemeanor. His defense lawyer was Lanny Breuerbthe official
overseeing the prosecution of Drake.

Jack Goldsmith, a Harvard law professor who served in the Bush Justice
Department, laments the lack of consistency in leak prosecutions. He notes
that no investigations have been launched into the sourcing of Bob Woodwardbs
four most recent books, even though bthey are filled with classified
information that he could only have received from the top of the government.b
Gabriel Schoenfeld, of the Hudson Institute, says, bThe selectivity of the
prosecutions here is nightmarish. Itbs a broken system.b

Mark Feldstein, a professor of media and public affairs at George Washington
University, warns that, if whistle-blowers and other dissenters are singled
out for prosecution, bthis has gigantic repercussions. You choke off the
information that the public needs to judge policy.b

Few people are more disturbed about Drakebs prosecution than the others who
spoke out against the N.S.A. surveillance program. In 2008, Thomas Tamm, a
Justice Department lawyer, revealed that he was one of the people who leaked
to the Times. He says of Obama, bItbs so disappointing from someone who was a
constitutional-law professor, and who made all those campaign promises.b The
Justice Department recently confirmed that it wonbt pursue charges against
Tamm. Speaking before Congress, Attorney General Holder explained that bthere
is a balancing that has to be done . . . between what our national-security
interests are and what might be gained by prosecuting a particular
individual.b The decision provoked strong criticism from Republicans,
underscoring the political pressures that the Justice Department faces when
it backs off such prosecutions. Still, Tamm questions why the Drake case is
proceeding, given that Drake never revealed anything as sensitive as what
appeared in the Times. bThe program he talked to the Baltimore Sun about was
a failure and wasted billions of dollars,b Tamm says. bItbs embarrassing to
the N.S.A., but itbs not giving aid and comfort to the enemy.b

Mark Klein, the former A.T. & T. employee who exposed the telecom-company
wiretaps, is also dismayed by the Drake case. bI think itbs outrageous,b he
says. bThe Bush people have been let off. The telecom companies got immunity.
The only people Obama has prosecuted are the whistle-blowers.b

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