Thomas Drake: The Unclassified Documents the Government Wants to Claim Were Classified

Jane Mayer, who did such crucial work showing how the Bush Administration chose torture in preference to a more effective, legal interrogation approach, now does similar work explaining that a similar choice of an illegal and ineffective approach over a legal one lies behind the Thomas Drake leak.

As she describes–relying largely on interviews with Thomas Drake, former Congressional staffer Diane Roark, and others with ties to the issue–that Drake and others were targeted because they championed a program called ThinThread over the expensive and ineffective SAIC version, Trailblazer. Both were data mining programs, but ThinThread automatically encrypted US person data. Trailerblazer did not, probably deliberately so. Between championing the wrong (but probably more effective) program, and submitting an Inspector General’s complaint about Trailblazer in 2002, Drake, Roark, and the others were targeted as potential leakers of the warrantless wiretap program.

Ultimately, in an effort to pressure Drake to testify falsely against they others and using evidence collected ostensibly in search of leads on the warrantless wiretap case, they cobbled together a charge based on five documents of disputed classification.

For four months, Drake continued coöperating. 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, “You’re screwed, Mr. Drake. We have enough evidence to put you away for most of the rest of your natural life.”

Prosecutors informed Drake that they had found classified documents in the boxes in his basement—the indictment cites three—and 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 hadn’t given Gorman classified information.

“They had made me into an enemy of the state just by saying I was,” Drake says. The boxes in his basement contained copies of some of the less sensitive material that he had procured for the Inspector General’s Trailblazer investigation. The Inspector General’s Web site directs complainants to keep copies. Drake says that if the boxes did, in fact, contain classified documents he didn’t realize it. (The indictment emphasizes that he “willfully” 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 “unclassified/for official use only” and posted on the N.S.A.’s 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.

In other words, after targeting Drake in the warrantless wiretap leak but not having any evidence to make a case, they charged him with espionage for having followed protocol on submitting an Inspector General complaint and keeping one email marked unclassified and another that has since been declassified. For that they want to send him to prison for 35 years.

As I laid out the other day, the government is claiming it can treat the parts of these five documents that even its expert has determined to be unclassified as they would treat classified information in CIPA.

In other words, it seems the defense planned to (and did not object to the evidence in the binder based on that plan) to cross-examine [the government’s expert] on the substance of her decisions about what was and was not classified in the documents Drake is alleged to have illegally retained and copied. It goes to the heart of the case against Drake. But the government wants to hinder the defense efforts by making sure that even things Murray decided were unclassified can’t be revealed in raw form to the jury.

And of course, as Drake points out in his interview with Mayer, the bigger thing the government is trying to hide is the cheaper, more effective program that preserved privacy rights they ignored in favor of the illegal wiretap program.

There’s lots more in the story–including Michael Hayden explaining to Roark that the government chose not to protect Americans’ privacy in the warrantless program because they “had the power” not to.

She asked Hayden why the N.S.A. had chosen not to include privacy protections for Americans. She says that he “kept not answering. Finally, he mumbled, and looked down, and said, ‘We didn’t need them. We had the power.’ He didn’t even look me in the eye. I was flabbergasted.” She asked him directly if the government was getting warrants for domestic surveillance, and he admitted that it was not.

Go read the whole thing.

  1. MadDog says:

    Another fine Jane Mayer piece!

    It seems like being a member of the National Security State is actually about being a member of an entirely different country.

    Members have a different passport than we do, different laws, and most certainly different allegiances.

    And woe unto them who cross the National Security State.

  2. harpie says:

    Oy! That Hayden quote!

    Glad it’s been published.

    I wish I could “read the whole thing”…I’m having trouble with New Yorker links [Stack overflow at line: 8…whatever that means…arrrgh!]

    I wonder who stood to make money from the use of one program over the other.

    • emptywheel says:

      From the article:

      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 Hayden’s 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.

      So to answer your question, Hayden’s deputies. And all the other privatized spooks at SAIC.

  3. justbetty says:

    I would disagree with what Mr. Aid is quoted as saying in the article with regard to embarrassing the government not being a crime. Seems it is actually a very serious crime – up to 35 years in prison.

    Thanks, Marcy, for highlighting this very important article. Very scary, don’t see what will change this ugly scenario.

  4. justbetty says:

    I hope Mr. Drake has a good lawyer and a fair judge- If so, I can’t see a jury finding him guilty. Maybe that would be the start of ending this kind of intimidation. A glimmer of hope?

    • emptywheel says:

      Well, note that in the CIPA hearing, the court agreed to let the govt substitute for unclassified information, and only then briefed it.

      I hope he changes his mind there, but he was quick to accept a pretty radical interpretation of CIPA.

  5. WilliamOckham says:

    Jane Mayer’s article adds a lot to our knowledge of the warrantless wiretap program. It’s going to take me some time to digest all of this, but I think this is the most significant work about the program since the original Risen and Lichtblau article.

    • emptywheel says:

      Not sure if you read Shane Harris’ book, which had a lot of news, as well, but other than that I agree with you.

      I was struck, for example, how calmly they said they put pen registers “on everyone”:

      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. “It was my brainchild,” he said. “But they removed the protections, the anonymization process. When you remove that, you can target anyone.” He said that although he was not “read in” to the new secret surveillance program, “my people were brought in, and they told me, ‘Can you believe they’re doing this? They’re getting billing records on U.S. citizens! They’re putting pen registers’ ”—logs of dialled phone numbers—“ ‘on everyone in the country!’ ”

      I’ve long suspected the way they did the hoovering at the circuits was via bulk pen register. (And I suspect that’s how they brought it into “legal compliance” after 2005.) This seems to confirm it.

  6. klynn says:

    The quotes that jumped out at me from the article:

    On privacy protections for US citizens:

    “General Hayden reassured everyone NSA didn’t put out dragnets, and that was true. It had no need – it was getting every fish in the sea.”

    Hayden says re privacy protection:

    “We didn’t need them. We had the power.”

    Susan Landau:

    “…the US now has the capability to monitor domestic traffic on a huge scale…”
    “Why was it done this way?” she asks. “One can come up with all sorts of nefarious reasons, but one doesn’t want to think that way about our government.”

    The time is now to think and talk about the reasons…


    “They made me into an enemy of the state just by saying I was.”

    EW do you know much about Baginski who is named in the article? An in-depth piece on him would be important from my reading of the article.

  7. mzchief says:

    Thank you, EmptyWheel. The read by Mayer is a good one. The MOTU are feeling quite irrelevant these days and insist they really do have a role in the world and in our lives. They’ve decided that that role is to be our God. We’ve neither asked them to be our God or want a God and are really clear on that. They’re pretty frustrated that we don’t need them and so now they’ve found Mr. Drake to try to pick on in order to try to convice us. It’s really a shame that the MOTUs don’t like to learn or change. Because they are resistant to retraining, they make really crappy rehires so that’s entirely off the table.

  8. lysias says:

    I haven’t quite gotten to the end of the Mayer article, but so far she hasn’t mentioned the involvement of military-industrial complex corporations in Trailblazer:

    In 2002 a consortium led by Science Applications International Corporation [SAIC] was chosen by the NSA to produce a technology demonstration platform in a contract worth $280 million. Project participants included Boeing, Computer Sciences Corporation, and Booz Allen Hamilton. The project was overseen by NSA Deputy Director William B. Black, Jr., an NSA worker who had gone to SAIC, and then been re-hired back to NSA by NSA director Michael Hayden in 2000. [5][6][7] SAIC had also hired a former NSA director to its management; Bobby Inman.[8] SAIC also participated in the concept definition phase of Trailblazer.[9][10]

    Who or what is SAIC, you ask?

    The company has had as part of its management, and on its Board of Directors, many well known ex-government personnel including Melvin Laird, Secretary of Defense in the Nixon administration; William Perry, Secretary of Defense for Bill Clinton; John M. Deutch, President Clinton’s CIA Director; Admiral Bobby Ray Inman who served in various capacities in the NSA and CIA for the Ford, Carter and Reagan administrations; and David Kay who led the search for weapons of mass destruction for the U.N. following the 1991 Gulf War and for the Bush Administration following the 2003 Iraq invasion.