by James Risen
After Roark and Drake tried and failed to stop the NSA’s warrantless wiretapping program, the Bush administration still had to scramble on other fronts to keep the existence of the NSA program secret. Senior Justice Department and FBI officials were the next to rebel against the NSA’s domestic spying operation, nearly triggering a constitutional crisis that threatened not only to force the entire domestic surveillance program out into the open but also to topple the Bush administration.
In 2003, John Yoo, the Justice Department lawyer who had originally rubber-stamped many of the Bush administration’s counterterrorism policies, from enhanced interrogation techniques to warrantless wiretapping, left the government. After he resigned, Justice Department lawyers reviewing his work were appalled by what he had done for the White House. They concluded that they could no longer provide the White House with assurances that all aspects of the NSA’s domestic surveillance operations were legal, triggering a dramatic series of events that climaxed in a showdown in Attorney General John Ashcroft’s hospital room in March 2004. The hospital room confrontation is now considered the dramatic highlight of the most serious constitutional crisis in the post-9/11 era.
The showdown developed because a hospitalized Ashcroft had temporarily turned over his duties to Deputy Attorney General James Comey, just as it was time for the attorney general to give his approval for the reauthorization of the NSA’s secret warrantless wiretapping program. But Comey had been persuaded by Justice Department lawyers that not all of the elements of the program were legal, and so he refused to give his approval. Angered by his refusal, White House chief of staff Andrew Card and White House counsel Alberto Gonzales went to see Ashcroft in his hospital room to try to get him to sign. Tipped off, Comey beat them there, and Ashcroft sided with him and told the White House officials to deal with Comey. Card and Gonzales left with no agreement, triggering an escalating crisis between the White House and Justice Department.
During the course of an intense legal showdown over the next few days, Comey, FBI Director Robert Mueller, and other senior Justice Department officials threatened to resign after the White House insisted on going ahead with the surveillance operation without the legal imprimatur of the Justice Department. Finally, President Bush personally resolved the crisis by agreeing to modify some aspects of the surveillance operation to satisfy Comey and Mueller.
A 2009 NSA inspector general’s report later leaked by Edward Snowden revealed for the first time that Comey and the other Justice Department and FBI officials were concerned about the legality of one particular component of the domestic surveillance program—a data-mining operation to collect and analyze Internet metadata from American citizens. The report said it was one of the four components of the NSA domestic surveillance program that Bush had first approved in October 2001. In addition to the main warrantless wiretapping of phone calls, the NSA domestic surveillance program included the collection of the content of e-mails and the collection of the calling log data of phone calls and the metadata of e-mails, which included the e-mail addresses and IP addresses of both senders and recipients of the e-mails.
Comey was not opposed to the main warrantless wiretapping program but, based on the legal advice of his lieutenants at the Justice Department, refused to reauthorize the Internet metadata collection operation. To satisfy Comey, Bush rescinded his authorization for the bulk Internet data collection on March 19, 2004. Then the White House and Justice Department began to look for new legal justifications to use to resume the Internet data collection. They finally decided that they could authorize it by claiming that it was a form of “Pen Register/Trap and Trace,” a long-established process used by the FBI to keep calling and e-mail logs in criminal cases. This new legal theory was a big stretch—the Pen Register/Trap and Trace procedure was used to monitor specific individuals under criminal investigation, and had never been used to justify the bulk collection of the records of millions of American citizens.
But the compliant chief judge of the FISA court, Colleen Kollar-Kotelly—the same judge who had betrayed Diane Roark to the Justice Department—secretly went along with the plan. She issued an order on July 15, 2004, authorizing the resumption of the Internet data collection program based on the new theory. She issued her order in secret, without telling any of the other judges on the FISA court, who still were not aware of the existence of the NSA domestic spying program.
And so, despite the drama surrounding the confrontation in Ashcroft’s hospital room, the crisis between the White House and the Justice Department subsided without bursting into public view. Comey and the other Justice and FBI officials backed down from their threats to resign, and the NSA domestic surveillance operation continued in secret, largely intact and with only a brief interruption.
The NSA program’s existence was finally revealed by the New York Times in December 2005, only after the Bush administration mounted an intense campaign to convince the Times not to publish the story. The administration’s point man in dealing with the Times’s editors was Michael Hayden, the same man who had pressured Diane Roark to remain silent. The paper agreed to hold the story for more than a year.
When it was finally published, the story set off a firestorm of protest on both the left and right. Civil liberties advocates accused the Bush administration of violating the Constitution with a high-tech invasion of the privacy rights of American citizens, while conservatives attacked the New York Times for publishing the story and damaging national security in the midst of the war on terror.
Within days, President Bush ordered a leak investigation to find out who had talked to the New York Times. The Justice Department convened a grand jury, and the FBI assigned a task force of agents to hunt down the paper’s sources. It did not take long for the Justice Department and the FBI to focus on Diane Roark as a prime suspect.
Roark was living quietly in Oregon when she got a call in August 2006 from the general counsel of the House of Representatives. The lawyer told her that the FBI was looking for her, and that the agents wanted to know whether she would be willing to talk to them as part of their NSA investigation. Roark replied that it was about time that someone investigated the program—but the lawyer quickly explained that the FBI was investigating the leak to the New York Times, not the program itself. Roark said she would be willing to talk with the FBI, but she was taken aback when the lawyer told her that the House of Representatives would not provide her with a lawyer.
Roark finally met with a prosecutor and two FBI agents in February 2007. With a shock, she realized that she was a target of the investigation. Roark denied that she had been a source for the story in the Times—a story that I wrote along with Eric Lichtblau—and also said she had not been a source for my book State of War, which also included a chapter revealing the existence of the NSA program. The prosecutor then asked her whether she knew who had talked to me or Lichtblau about the NSA, and she said she had no idea.
An incessant pounding woke Diane Roark from a sound sleep. She stumbled out of bed, went down to the front door of her Oregon home, peered out a window, and asked who was there. It was the FBI. It was 6 A.M. on July 26, 2007, and a phalanx of FBI agents, pouring out of a convoy of cars that filled her driveway, had come to raid her house.
As she opened the door, at least a dozen agents filed in. The lead agent quickly asked if she had any guns, and she said no. He then showed her a search warrant and stood next to her while she called her lawyer in Washington, who told her to ask the FBI agent to let her see a copy of an affidavit in support of the search warrant. The lead agent told her it was under seal and that she couldn’t see it. With that, the FBI began to pick apart Roark’s house.
While other agents started to carry out her computer and other electronic equipment, one female agent accompanied Roark back upstairs, watched as she got dressed, and then followed her outside when she decided to get out of the house and work in her garden while the FBI rifled through her belongings. The FBI search took five hours—con
ducted mostly by women wearing hair nets and gloves—and even extended to the apartment of a tenant who was renting rooms in Roark’s house. They took fifteen boxes filled with Roark’s belongings, made her sign for it, and then left.
On that same day in Maryland, FBI agents raided the homes of Bill Binney, Kirk Wiebe, and Ed Loomis. A few months later, in November 2007, the FBI raided the house of a fifth member of what the government was convinced was a conspiracy of leakers—Thomas Drake, the only one of the group who was still working at the NSA.
A previously sealed FBI affidavit filed in support of the raid on Drake’s house shows that he and the others were all targeted because the government believed that they had conspired together to reveal all that they knew about the NSA domestic surveillance program to the New York Times. The affidavit is from an FBI agent ironically named Jason Lawless, who stated that he was assigned to a “task force that is conducting an investigation into the unauthorized disclosure, ‘leak,’ of classified information to two New York Times (NYT) reporters, James Risen and Eric Lichtblau, who work in the NYT’s Washington, D.C. Bureau, concerning alleged activities of the National Security Agency (NSA), including the Terrorist Surveillance Program (TSP).”
All five told the FBI that they had not talked to the Times about the NSA program, and all said that they did not know who did. One reason they had been targeted as a group was because they had jointly signed a letter to the Defense Department’s inspector general calling for an investigation of the waste and abuse in the NSA’s Trailblazer contract.
After Drake denied talking to the New York Times, he told the FBI that he had only spoken with a reporter from the Baltimore Sun, who had written stories about the NSA’s contracting problems with Trailblazer, which had been published after the New York Times stories about domestic spying. Embarrassed by the fact that they had devoted enormous resources to investigating the wrong people, the Justice Department was forced to grasp at straws. Prosecutors decided to charge Drake in connection with leaking to the Baltimore Sun, based on his own statements. Eventually, that case collapsed when the government failed to prove that he had leaked any classified information at all. (In fact, Drake was not even the original source for the Sun’s stories on Trailblazer. Drake did not talk to the Sun reporter until after she had already written her first stories on the subject.)
But while the Drake case collapsed, and the other four were never charged, the investigation had a devastating impact on all of them. Just as she was being targeted by the Justice Department, Diane Roark was diagnosed with breast cancer. She had to begin treatments as prosecutors threatened her with jail for perjury for lying about not being a source for the Times’s NSA story. When word that she was under investigation began to spread, Roark was ostracized by her former friends and colleagues on the House Intelligence Committee.
Drake’s wife, who also worked at the NSA, was furious at her husband for putting their family at risk. Pressured by the NSA to cooperate or else risk losing her job, she talked to the FBI about her husband, despite the marital privilege that gives spouses the right not to testify against each other. They separated for a year but then decided to stay together for the sake of their youngest son.
Bill Binney has been suffering from diabetes that he believes was triggered by a case of hepatitis A he contracted from food he ate in the NSA cafeteria. He has suffered four episodes of MRSA since 2008, and has lost his right foot and left leg below the knee. He now must use a wheelchair. Whether stress from the federal investigation was a factor in his health problems is difficult to determine. “Actually, my medical problems seemed to make the government crap trivial,” he now says.
After his home was raided, Ed Loomis felt betrayed by the system that he had been a part of all his life. He became so embittered and traumatized that his wife left him. “Her departure was of my own making along with the able assistance of the U.S. Government,” Loomis says now. “My personality metamorphosis was created solely from being dishonored by NSA. . . . It embittered me to the point where I had virtually withdrawn from most friends and family out of utter shame and embarrassment. I morphed into a curmudgeon, purchased a couple of handguns to test whether the Men in Black would allow the purchase to go through.”
Today, Thomas Drake has emerged from the wreckage of the government’s case against him and is trying to put his life back together again. In a deal to end the case as rapidly as possible, he agreed to plead guilty to a single misdemeanor charge related to the improper handling of a document that the FBI found at his house during its raid. He served no jail time.
Drake has since become celebrated and was awarded the Ridenhour Prize for Truth-Telling, given annually to whistleblowers. It is named for the soldier who blew the whistle on the My Lai massacre in Vietnam. Drake works in an Apple store in Bethesda, Maryland, in order to help make ends meet. In October 2013, he traveled to Moscow to meet with Edward Snowden and participated in a small ceremony in which Snowden was presented with an award as an intelligence whistleblower. (Snowden has said that the government’s persecution of Drake was one reason he decided to leave the United States before leaking documents to the press.)
Diane Roark, by contrast, has received almost no public recognition for her repeated efforts to try to stop the NSA program. She still lives quietly in Oregon and has been relying on alternative medical treatments to deal with her breast cancer. “I know I did the right thing in challenging the completely unnecessary threat to our liberties and to our very Republic,” Roark now says. “It was, after all, what I was paid to do and what was rightly expected of me. I will never regret it.”
Stellar Wind was the start of a modern American Big Brother, but the surveillance state certainly did not end with the public disclosure of the NSA’s domestic spying by the New York Times. Edward Snowden’s disclosures in 2013 revealed that, more than a decade after 9/11, the capacity of the NSA and the rest of the U.S. government to spy on American citizens has gone far beyond the original Bush wiretapping and data-mining programs.
After the New York Times disclosed the existence of the NSA program, the Bush administration staunchly defended its actions. Later, the White House reluctantly agreed to have Congress pass an overhaul of the FISA law that largely codified the program. In the legislation, the FISA Amendments Act of 2008, Congress even provided retroactive legal immunity for the telecommunications companies that had been involved with it. Sen. Barack Obama, then the Democratic candidate for president, voted for the telecom immunity provision, angering many of his liberal supporters in the midst of the 2008 presidential campaign while providing a preview of his hawkish embrace of the Bush approach to the war on terror that he would display as president.
In the years since, the government’s surveillance capabilities have expanded radically, as the NSA documents leaked by Snowden reveal. In fact, the ability of both government and business to track the daily activities of Americans, in something close to real time, has been developed, refined, and expanded over the past few years, with little public debate. A decade of technological change and the rise of social media have shredded the traditional concept of privacy in America. One NSA contractor observed that Americans are now living in a “post-privacy age.”
Once the NSA embraced the Internet and a drift-net style of data collection, the agency was transformed. The bulk collection of phone and e-mail metadata, both inside the United States and around the world, has now become one of the NSA’s core missions. The agency’s analysts have discovered that they can learn far more about people by tracking their daily digital footprints through their metadata than they could ever learn from actually eavesdropping on their conversations. What’s more, phone and e-mail logging data comes with few legal protections, making it easy for the NSA to access.
One 2012 NSA document leaked by Snowden provides an overview of how the NSA views the new digital world. The document, titled “Sigint Strategy, 2012–2016,” makes it clear that NSA officials believe that things have nev
er been better for electronic surveillance—and they are intent on keeping it that way. The strategy paper proclaims that the NSA is now living through “the golden age of Sigint,” largely because of the explosive growth in digital information ripe for NSA collection. Between 2006 and 2012, total digital information grew tenfold.
The strategy paper shows that the NSA is determined to influence U.S. policy in ways that allow it to retain its vast powers of data collection, and even expand them further. The NSA will “aggressively pursue legal authorities and a policy framework mapped more fully to the information age,” the paper states. “For Sigint to be optimally effective, legal, policy and process authorities must be as adaptive and dynamic as the technological and operational advances we seek to exploit.”
The NSA has been flourishing by taking advantage of the fact that the United States has not yet had a comprehensive national debate over how to properly strike a balance between the government’s powers of domestic surveillance and the privacy rights and civil liberties of American citizens. That is because the NSA’s powers have been expanded in secret, and the public has only learned about domestic spying from a series of whistleblowers forced to risk their careers and sometimes even their lives in order to reveal the truth. As a result, the public debates have been ad hoc and piecemeal, and government officials have only grudgingly engaged, loudly proclaiming that the media leaks that sparked the debates are damaging to national security.
