by James Risen
In fact, a draconian crackdown on leaks by the Obama administration has made it far more difficult for the public to find out how electronic surveillance and domestic spying have grown. Few are willing to face what Diane Roark, Tom Drake, or Edward Snowden have endured.
That fear has even extended to the floor of the U.S. Senate. Before Snowden’s disclosures, one of the few people in official Washington who rebelled against the growth of the surveillance state was Sen. Ron Wyden, an Oregon Democrat. As a member of the Senate Select Committee on Intelligence, Wyden had been briefed by the Obama administration and the intelligence community on the extent of the government’s domestic surveillance apparatus, and he became convinced that if Americans knew as much as he did, they would be shocked. Wyden was upset that the Obama administration had followed the same course as the Bush administration by using secret Justice Department legal opinions and secret court opinions to pervert the law in order to get away with massive domestic spying operations.
For years before Snowden began to leak documents, Wyden tried to sound the alarm. He publicly warned that the Patriot Act was in reality two laws, one that American voters knew about, and the real one that the government actually used. Specifically, Wyden said that the Obama administration had secretly reinterpreted the provision in the Patriot Act that covered searches of the business records of Americans—and its interpretation of that provision had given the government far greater surveillance powers than ever intended. “It is almost like there are two sets of laws, one the public can read, and one the government has developed in secret,” he complained. He said he met privately with Vice President Joe Biden to warn him that the Obama administration was going down the wrong path on domestic spying.
But Wyden refused to publicly explain how the administration was manipulating the law, and would not say exactly why he thought what the government was doing would shock the nation. He said that because the information was classified, he could not publicly detail his complaints unless the Obama administration and the intelligence community agreed to declassify the material, and they refused do so.
Wyden could have gone to the floor of the Senate to discuss the domestic spying openly, since he had legal immunity as a member of Congress. But the Obama White House and top intelligence officials would almost certainly have pressured the Senate’s leadership to strip Wyden of his membership on the Senate Intelligence Committee, and he would thus have lost access to any further information on the subject. Wyden was left in the bizarre position of warning the public about something that he couldn’t discuss.
Most ironically, it was only after Edward Snowden began to leak documents that Wyden felt free to say publicly exactly what he had been warning about for years. After Snowden’s disclosures revealed that the NSA was relying on secret law to obtain the private data of millions of Americans, Wyden confirmed that Snowden’s leaks had disclosed what he had been concerned about. That meant that a low-level whistleblower had achieved what a U.S. senator could not, proving just how dysfunctional Washington had become. Wyden’s experience offered conclusive proof that Snowden could never have triggered a national debate by working within the system.
Threats and alarms about terrorism gave the NSA room to expand domestic surveillance in the aftermath of 9/11; now threats posed by cyberattacks have given the NSA maneuvering room once again. And once again, government secrecy has prevented the public from understanding the true nature of the cyber threat or knowing the full extent of the government’s intrusions into their online privacy in the name of cybersecurity.
With Osama bin Laden dead and terrorism on the wane, cybersecurity is the new buzzword in Washington, the latest justification for the expansion of the government’s surveillance powers, and the new cash cow for defense contractors.
Rod Bergstrom tried to warn Washington about what was coming. As director of the National Cybersecurity Center at the Department of Homeland Security in the late Bush years and the early months of the Obama administration, he saw evidence that the NSA was maneuvering to take control of the government’s cybersecurity efforts. Bergstrom feared an NSA takeover of cybersecurity because he knew that would mean that an agency whose primary responsibility was the collection of foreign intelligence would now be in charge of policing the domestic Internet.
Bergstrom was a Silicon Valley entrepreneur, not a Washington lifer, and so he had little interest in fighting a prolonged turf war. When he realized that he could not stop the NSA’s power grab, he resigned in protest. He warned that if the NSA became the arbiter of cybersecurity, it would have access to all of the digital data of all Americans.
Bergstrom returned home to northern California and put his time in Washington behind him. But his warnings proved prophetic. During the Obama administration, the NSA did exactly as Bergstrom predicted, maneuvering to take control of cybersecurity. The Pentagon created a new U.S. Cyber Command that was nominally supposed to be separate from the NSA. But Gen. Keith Alexander, the director of the NSA, was given a second title as commander of U.S. Cyber Command, which was of course based at Fort Meade, the home of the NSA. In 2012, Alexander shed his uniform and donned a T-shirt and jeans to address a hacker convention in Las Vegas, where he tried to convince the nation’s leading hackers to cooperate with the NSA’s push into cybersecurity.
By 2013, as the number of reported cyberattacks on private companies and government agencies increased, the national debate about the need for greater cybersecurity intensified. But while the threat was real, the attacks led politicians and intelligence officials to begin to use increasingly apocalyptic rhetoric to describe the threat, hoping to justify a surge in government spending on cybersecurity as well as new legislation that would give them greater control over cybersecurity operations inside the United States. That would mean big new government contracts for outside contractors who have rebranded themselves as cybersecurity experts.
Cyber spending has surged even as the rest of the federal budget has faced severe cuts. In 2012, federal agencies spent $14.6 billion on cybersecurity, up from $13.3 billion the year before. And where there is an open spigot of federal money, lobbyists are not far behind. A report compiled in 2013 by the Center for Responsive Politics for CNNMoney found that a total of 1,968 lobbying reports filed with the government in 2012 mentioned the word cybersecurity or variations of the term multiple times, compared with 990 lobbying reports in 2011.
The government’s scramble into cybersecurity also means a rush to build even more programs that could threaten the privacy of American citizens. One NSA cybersecurity program that has already raised concerns among privacy advocates comes complete with its own Orwellian-sounding name—Perfect Citizen—and a $91 million contract for Raytheon, a defense and intelligence company. The program reportedly is supposed to prevent cyberattacks on the nation’s most critical infrastructure like power utility grids. But the NSA has refused to publicly explain exactly how Perfect Citizen will work, or how much it will intrude in private, domestic networks.
A Homeland Security program designed to protect government networks, called Einstein 3, has also raised concerns, since it has the capability to preempt attacks against government and contractor networks by searching out and disabling potential threats. But privacy advocates worry that it might become a kind of preemptive hunter-killer, analyzing data to determine whether it poses a threat, reading e-mails as well as detecting malware, and intercepting data before it reaches government or contractor networks.
Supporters say Einstein 3 needs to be able to roam the Internet to protect government networks before attacks occur, while critics say that its technology is derived from the NSA and is similar to spy technology used by authoritarian regimes to monitor Internet use. Either way, there has been little public debate in Congress about the privacy concerns raised by Einstein 3, Perfect Citizen, or any other cyber programs; instead, money has continued to pour into cybersecurity at a record pace with few questions asked.
Documents leaked by
Snowden now make it plain that, for the NSA, there is little real difference between cybersecurity and domestic surveillance. Both rely on broad access to Internet metadata and both intrude on the digital privacy of American citizens to achieve their objectives. But because the concept of cybersecurity has gained such widespread public acceptance, the NSA’s involvement has proved far less controversial than its role in domestic spying.
The intense campaign to ramp up cybersecurity and pour money and resources into mysterious new programs, while limiting online privacy, sounds eerily similar to the debate after 9/11 over security versus civil liberty, in which security always won. In Harvard Law School’s National Security Journal, Jerry Brito and Tate Watkins, technology experts at George Mason University, warned that the cyber threat is being hyped by government officials seeking greater power and by outside contractors seeking more money. “A cyber-industrial complex is emerging, much like the military-industrial complex of the Cold War,” they wrote. “This complex may serve not only to supply cyber security solutions to the federal government, but to drum up demand for those solutions as well.”
Mike McConnell, the former director of national intelligence at the end of the Bush administration, provides a case in point. After he left office, McConnell became a senior executive for Booz Allen Hamilton, one of the top three contractors in defense cybersecurity, according to data compiled by Bloomberg Government in 2012. While at Booz Allen, McConnell has used the media platform provided by his status as a former director of national intelligence to publicly argue that much more needs to be done to protect the nation from cyberattacks. In one op-ed, he argued that cyberwar “mirrors the nuclear challenge in terms of the potential economic and psychological effects.”
But a fact rarely mentioned in the rush to grant the NSA more power over cybersecurity—and greater access to the Internet—is that the NSA is now one of the world’s leaders in the use of offensive cyberattacks. The NSA has been behind some of the most sophisticated and damaging cyberattacks ever mounted, including the Stuxnet and Flame viruses that targeted the Iranian nuclear program.
But when the New York Times reported the fact that the NSA was behind Stuxnet in 2012, the government reacted in a depressingly familiar fashion. It launched a leak investigation, one that this time turned on Obama’s inner circle.
Afterword
One day in the summer of 2007, my wife, Penny, called me to say that a FedEx envelope had arrived at our home.
It was from the Justice Department. Inside was a starkly worded letter from a federal prosecutor notifying me that the Justice Department and the FBI were conducting a criminal investigation into my 2006 book, State of War: The Secret History of the CIA and the Bush Administration. The letter stated that the government was investigating the “unauthorized disclosure of classified information” in my book. The letter demanded my cooperation.
The letter was sent to satisfy the requirements of the Justice Department’s internal guidelines that lay out how prosecutors should proceed before issuing subpoenas to journalists to testify in criminal cases. The letter was essentially a warning from the Justice Department. Cooperate now, or a subpoena will follow.
I didn’t cooperate, and in January 2008, I was subpoenaed by the Justice Department to testify before a federal grand jury in Alexandria, Virginia, in the government’s leak investigation into my book.
I again refused to cooperate, and my lawyers and I moved to quash the subpoena.
That was the start of my marathon legal battle waged first against the Bush administration and later against the Obama administration.
As my legal battle against the government dragged on year after year, eventually making its way to the Supreme Court in 2014, I became convinced that I was fighting to protect press freedom in the post-9/11 age. But in the process, I discovered that I was no longer merely a journalist and author covering the war on terror. I had joined the many people whose lives had been upended by its excesses.
Undeniably, State of War had a huge impact—in some ways even before its publication in January 2006.
As an investigative reporter for the New York Times covering intelligence and national security, I have covered the war on terror ever since 9/11. In 2004, I discovered my biggest story of the post-9/11 age.
In October 2004, Eric Lichtblau and I wrote a story for the Times that disclosed the existence of the National Security Agency’s warrantless wiretapping program. The story showed that President George W. Bush had secretly directed the NSA to engage in domestic spying on a massive scale, skirting the post-Watergate law Congress had enacted thirty years earlier to curb the intelligence community’s domestic abuses. The NSA program was the biggest secret in the U.S. government, and many of our sources believed it was illegal, and possibly unconstitutional.
The story was explosive, and the Bush administration was frantic to kill it. Top officials at the White House, the NSA, and the CIA pushed back hard.
The White House launched an intense lobbying campaign designed to convince Bill Keller, then the executive editor of the Times, and Phil Taubman, then the paper’s Washington bureau chief, that the story would severely damage national security. Senior government officials, including then NSA director Michael Hayden, argued that the NSA program was the “crown jewel” in America’s war on terror.
That October, in the face of the mounting White House pressure, Lichtblau and I, along with our primary editor, Rebecca Corbett, met in New York with Keller to try to convince him to run the story. But Keller, accepting the government’s national security arguments, killed the story about two weeks before the 2004 presidential election between George W. Bush and John Kerry.
Immediately after Bush’s reelection, Lichtblau and I convinced Keller and Taubman to let us try again to get the story in the paper. In November and December 2004, we did more reporting and more rewriting, while Corbett did more reediting. There were more discussions with the government.
In mid-December 2004, we turned the story in again, and Lichtblau and I, along with Corbett, again argued to run it. But the story was killed once more.
The NSA story had now been killed twice by the Times, and the decision this time seemed to be final.
I was frustrated and deeply concerned that the truth about the war on terror was being covered up. Before the invasion of Iraq, my stories that revealed that CIA analysts had doubts about the prewar intelligence on Iraq were held, cut, and buried deep inside the Times, even as stories by other reporters loudly proclaiming the purported existence of Iraqi weapons of mass destruction were garnering banner headlines on page one. I decided I wasn’t going to let that happen again.
In late December 2004, just after the NSA story was killed a second time, I took a leave from the Times to write a book about the war on terror. I decided to include the NSA story in my book, along with another story that the Times had killed at the request of the White House about a botched CIA operation involving a harebrained scheme to give nuclear weapons blueprints to Iran.
Because we had worked on the NSA story together, I told Eric Lichtblau that I was planning to include the story in my book. He approved.
After my manuscript was completed in the late summer of 2005, I told the editors at the Times that I was planning to include both the NSA story and the story about the CIA’s botched Iran program in my book.
They were furious. For several weeks, the editors refused to reconsider running the NSA story, which, of the two stories, was freshest in their minds and which became the focus of our tense internal negotiations.
Finally, the editors agreed to reconsider. Months of additional meetings between the editors and top government officials followed. Finally, after an Oval Office meeting between President Bush and Arthur Sulzberger, Jr., the publisher of the Times, the NSA story was published in December 2005. It ran about two weeks before the publication of State of War. The Times story sparked a firestorm of protest against the White House and the NSA.
Meanwhi
le, top White House officials launched a last-minute effort to block the publication of State of War, according to the recent memoir of the CIA’s former acting general counsel. But after its release in early January 2006, it triggered a huge national debate, not only about the NSA program but also a wide range of other intelligence abuses detailed in the book. I now believe that State of War played a significant role in the history of the post-9/11 era, because it was the first book to really force Americans to seriously reconsider the basic tenets of the war on terror.
But the twin controversies surrounding the Times NSA story and State of War also prompted Bush to order the Justice Department and the FBI to launch a pair of criminal leak investigations.
Immediately after our NSA story ran in the Times, Bush ordered the first leak investigation to find out who had talked to me and Lichtblau for our story. After State of War was published, the government launched a second leak investigation into the book as well. It was this second investigation into State of War that ultimately led to my prolonged legal battle with the government.
In 2009, when the new Obama administration continued the government’s legal campaign against me, I realized, in a very personal way, that the war on terror had become a bipartisan enterprise. America was now locked into an endless war, and its perverse and unintended consequences were spreading.
And so my answer—both to the government’s long campaign against me and to this endless war—is this new book, Pay Any Price.
Pay Any Price is my answer to how best to challenge the government’s draconian efforts to crack down on aggressive investigative reporting and suppress the truth in the name of ceaseless war.
My answer is to keep writing, because I believe that if journalists ever stop uncovering abuses of power, and ever stop publishing stories about those abuses, we will lose our democracy.
