After Paris, Be Careful What You Ask For: An Interview with Thomas Drake

NSA whistleblower Drake wanted to defend the US constitution. So they prosecuted him under the Espionage Act

Originally posted at Open DemocracyTHOMAS DRAKE and MARY FITZGERALD.

 

Mary Fitzgerald: Thank you very much for being with us today. Some interesting polling data has come out of France since the terror attacks: 84 percent of French people would prioritise security over liberty now. Do you think that’s the right direction?

Thomas Drake: No it’s not. I’m having huge flashbacks to 9/11 in the US, post-9/11 when similar polls said, ‘oh yeah we need more security… I don’t mind if they’re listening in on my conversation, I don’t mind if they’re reading all my… I don’t mind, if that makes us safer, then I’m for it.’ Be careful what you ask for.

Mary: Why would you caution against that, based on your own experience?

Thomas: Because it’s a false dichotomy. To say somehow: I’ve got to choose one over the other. When we need both, right? This is not a case of choosing one or the other. If you choose one over the other, you’re gonna lose both, or erode both. That’s the false dichotomy.

The other thing is that just like 9/11 – I’m the first to acknowledge the barbaric nature of the attacks, the mass murders. We have to protect ourselves against those – and yet the government failed in Paris. It failed to protect the people and did not keep people out of harm’s way. Why is that? Why isn’t that question being raised?

So that, now there’s increasing demands for more surveillance, more control, more emergency powers, and I would caution France against going down that path! Ask the question why, when they had so much information, they had a number of those attackers on lists, they were monitoring neighbourhoods, and they failed to act.

Yet because of the failure, because the government’s too big to fail, they are now asking for more powers. Be careful what you ask for…

 

 

Mary:  This is a good moment to go over your own story, yours and Bill Binney’s. You’re a registered Republican, you take national security very seriously as many people do. Tell me about the system that Binney and others came up with, post 9/11, ThinThread – what that was supposed to do and why it wasn’t taken up? 

Thomas: It was targeted surveillance. It was not mass surveillance. In fact it actually protected individuals, entities, right? It didn’t look at everything, it didn’t have to – that was the whole thing. That was the part of the problem of mass surveillance: the more you collect the less you know. People think, ‘the more I collect the more I’ll get to know, or if I collect it all I’ll get to know it all.’ Really?Well, you get to know more and more about less and less…

Mary: You aren’t able to pinpoint the stuff that’s really relevant?

Thomas: Yeah and you’re putting tremendous resources into just collecting it all. Here’s the kicker. Even in the US, the former director of the NSA, General Alexander as well as others, keep going back to this haystack principle. We just need a bigger haystack, really? If you treat every straw as a needle, you’re going to have extraordinary difficulty finding the real needles. We need to find the real needles, so why build bigger haystacks? I want smaller haystacks, not bigger haystacks.

Mary: With a smaller haystack do you think the security services would have been able to prevent 9/11?

Thomas: Yes, well we know that – from the evidence that the NSA had in its own databases, from actual multi-source intelligence reports – where we knew an awful lot. But unless you act on indications, unless you act on the information, and I know it’s an overused phrase – connect the dots – well guess what, then things happen.

Mass surveillance is great after the fact. Hey what do we know now – wow! But the tragedy has already happened. Do we have to keep repeating this? For me it’s like a broken record, it’s like these flashbacks just keep flashing. Look! Even the flight that I came in on Monday night, on Air France 055 out of Dallas – the very next night the same flight out of Dallas was diverted to Nova Scotia because of threats that were called in.

I realise security is a serious matter, I do, I’m not here to tell you it isn’t. There are clearly those who don’t mind killing others, in some cases just for the sake of killing, and of course we can’t ignore history and cultural factors; sometimes we forget that. But in the moment – to react in the moment and demand things? That’s what happened after 9/11. So the thing with ThinThread is, it protected rights and liberties. It did both. You can actually have a secure intelligence system that targets real threats that do exist.

Mary: So why wasn’t it taken up?

Thomas: Because it threatened the institution.

Mary: Because it would have been smaller and more efficient?

Thomas: Yeah far more, they actually shut it down right before 9/11. I attempted to resurrect it after 9/11.

Mary: And what were the reasons you were given for it not being continued?

Thomas: Oh well, this is where it gets surreal, perversely surreal. Because, when I was going around the NSA campus with a number two person who I reported to after 9/11, 9/11 was a gift to the NSA – ‘where we can get all the money we want and then some’. So the incentive was to have bigger programmes, because this is a really big problem; an existential threat.

Mary: The system that Binney and others designed, ThinThread, basically threatened the size of that operation because it was so efficient and targeted?

Thomas: Yes, and they didn’t want to go that way. I even confronted the lead attorney in the first week in October. It was a moment of truth for me – Pandora’s box would open up. He said: “We just need the data.” He actually said: “You don’t understand Mr Drake. We just need the data. Exigent conditions apply. All means necessary.”

So the ends justify the means, and that was the basis for mass surveillance. You have to remember it was a systemic failure of the government to provide for the common defence, even under the US constitution. This is why I’m having these major flashbacks with what just happened in Paris.

So the ends justify the means, and that was the basis for mass surveillance. 

Mary: Faiza Patel said yesterday, we need to accept, as tough as it may be, that we can’t stop every terrorist attack, and that’s a price we pay for our freedom in some sense. Do you agree with that?”

Thomas: Well it is part of the tension. Are democratic societies more open and vulnerable to this? Of course. But we don’t have to lose what it means to be free and open, to sacrifice that for the sake of security. You want perfect security? That’s a different form of governance.

Mary: A different culture and society.

Thomas: Completely different culture, and I don’t think people want to live that. What I am impressed with is the extraordinary resilience of the Parisians. I mean people getting up and in spite of the authorities saying, ‘stay in your homes, remain in place’ – no – they came out, yeah, the very next day.

Mary: Why do you think we in the media and in wider society only call those who abuse the name of Islam, terrorists? Why don’t we call Breivik a terrorist? Why don’t we call Dylan Roof a terrorist? What’s the difference?”

Thomas: It’s a convenient narrative because you can’t really look at your own, can you? That’s part of the challenge. Some people say despotic regimes are terrorist by nature.

Mary: The regime of Saudi Arabia, the regime of….

Thomas: Yes, but there’s extraordinarily powerful alliances with the kingdom. It has engaged in incredibly brutal conduct against its own population. Question authority and you might get something chopped off, or be taken out in public and flogged. You tell me, I say this rhetorically. It’s convenient to have an existential threat, but it’s also artificial, because it allows you to justify all kinds of things in the name of national security.

Mary: Did Edward Snowden breach national security in any serious ways? While his motivations were good, did he cause security problems that were unjustified?

Thomas: Severe embarrassment to the US government, revealing just how the mass surveillance machine had metastasised. Remember the petri-dish was the US. This is what I blew the whistle on, early on – it was then exported overseas. This obsession to collect it all.

 

NSA, Fort Meade. Wikimedia Commons. Public domain.
NSA, Fort Meade. Wikimedia Commons. Public domain
Mary: So how it is that you’ve come to be sitting here today. Tell me your story, you’ve told it many times before, but I think that for our viewers and listeners it would be fascinating to know why it is that you’re here now. 

Thomas: Well, first of all I’m here as a free human being. I can’t begin to tell you how precious that is. I’m in an extraordinarily small group of people, I mean, post 9/11 I’m the only person that managed to hold off the government. Anybody associated or related will tell you I had nothing to do with surveillance, I didn’t engage in surveillance. What I did was to blow the whistle on mass surveillance, a number of other things as well, the 9/11 intelligence failures and massive multi-billion dollar fraud, plus a number of other things involving government malfeasance and wrongdoing.

Mary: What was your job?

Thomas: I was hired in from the outside. Congress was very concerned about NSA’s ability to remain relevant.

Mary: What year was this?

Thomas: This was 2001. So about 12 of us were hired in. My first job, reporting to my new duty station, was 9/11, and shortly thereafter I found out what the government was doing in the deepest of secrecy, all approved by the White House, and the tremendous amounts of money being pumped into the NSA, as if that was the answer.

Mary: And what did you decide to do about that?

Thomas: I decided I would not remain silent. I took an oath to defend the constitution. Here I am finding myself defending the constitution against my own government, a government that I did not  recognise, an alien form of government. I had to stand up to it. So for many years I blew the whistle for every channel that existed. I was a witness on a number of government investigations including two 9/11 congressional investigations, as well as others.

Mary: You were careful not to leak classified info: you played within a certain set of rules?

Thomas: That’s true, yes. I did everything I could to follow the rules, including the rules governing whistleblowing.

Mary: But they came after you anyway.

Thomas: Yes, well, you see, that’s what’s interesting. It didn’t matter whether it was classified or not, because the government actually insisted that it was. The irony of course was that it was material that was completely unclassified, but they decided to turn it into classified, it was retroactively classified. It was to suit their own purpose which was, ‘we’re going to punish him because he blew the whistle on our own wrongdoing, he blew the whistle on violations of law, blew the whistle on the fraud, waste and abuse, and on the fact that we were also culpable in the 9/11 failure.’

They were really ticked off, but it was particularly the mass surveillance, because they knew that they were violating the law. They knew they were violating the constitution, they were violating the existing Foreign Intelligence Surveillance Act. But for them it didn’t matter, ‘national security’ reigned supreme.

Mary:  So they prosecuted you and accused you of breaking all kinds of laws?

Thomas: Yes, under the Espionage Act no less, which means that you’re pinned in a very dark corner because it’s a strict liability, you cannot make a public defence. The fact that you retain information for the purpose of disclosure (which was literally what they charged me with), means that you are a really, really bad person.

In fact, I just found out yesterday that I am on a rogues’ gallery – you might have seen this, it’s making the rounds in social media. It’s quite something! I’m actually on a rogues’ gallery of insider threats. To the left of me is Nidal Hasan, the shooter of Fort Hood, to the right of me is Snowden, and to the right of Snowden is Aaron Alexis, the shooter in the Washington Navy Yard, along with other spies, spies that give information to Cuba, spies that give information to Russia, spies that give information to China, right?

Mary:  So the motive behind the disclosure is completely irrelevant – whether you are a patriot, and trying to defend the constitution, or kill people, makes no difference?

Thomas: Yes, completely irrelevant. It doesn’t matter that in fact it was criminal to defend the constitution, in this regard, because I was defending against my own government who had violated the constitution. Remember the only oath I took was to defend the constitution? It was an experiment in how to govern ourselves, a special form of democracy, a constitutional republic. I’ve taken that oath four times, right?

Mary: They tried to prosecute you but they failed. How come?

Thomas: They failed because I had extraordinary attorneys – particularly Jesselyn Radack – who defended me in the court of public opinion. I had public defenders who defended me quite ably, against a malicious, vindictive prosecutor who wanted to put me away for a long time.

Mary: And they maybe failed because you didn’t break the law?

Thomas: Yeah it’s true. But that didn’t matter to them. Yes, it is true that Snowden did give what is truly classified information. But you can’t use the classification system (this is actually in the executive orders, the rules that govern classification) – you can’t use it to violate the law, to hide wrongdoing, to protect from embarrassment. You can’t use the fact that it is classified… You see, it doesn’t really matter here does it, in my case? What’s interesting, just like John (Kiriakou), who refused to engage in torture, and ultimately blew the whistle on torture – I refused to engage in mass surveillance. I simply blew the whistle on mass surveillance, and yet I’m the only one in all this described as a criminal.

We’re the only two people since 9/11 that were criminally investigated, were charged, were indicted, were convicted and sentenced in relation to torture and surveillance, mass surveillance. Why? Because we blew the whistle.  All the people that were participating in the programmes, that approved the programmes, that managed the programmes… all the way up to the White House…

Mary: Are still there.

Thomas: Are immune from prosecution. And it was all unnecessary. I mean, this is where we were betrayed by my own government, right? Why would we betray the fundamental principle? All this was unnecessary. We didn’t have to torture anybody. We didn’t have to engage in mass surveillance. And in terms of mass surveillance, with the very best of American inventiveness and ingenuity, since necessity is the mother of invention, we had already solved this problem, we really had. We didn’t have to give up what it means to be in America, or what it means to be a democracy for the sake of security, and then protect it under the banner of national security and then stamp classified on it when we were held to account.

 

President Obama. WIkimedia Commons. Public domain.
President Obama. Wikimedia Commons. Public Domain
Mary: According to Obama’s own logic and definition of being on the record, and the things he has said about whistle-blowers, people like you should have been protected. Why has the reverse happened? You said you were very optimistic about Obama: what’s gone wrong? 

Thomas: This is how I explain it. There’s a deeper story here. Of course anyone who wants to seek the presidency especially in the modern era, well I mean, you really want to have power, and you have to sacrifice a lot to get there. He was willing to sacrifice pretty much everything to get there, and he did. So that first day, basically I’m going to paint the picture. He comes into the Oval Office. He’s now the new president of the US, and he sees that secret platter of all the presidential powers, including surveillance. He says, ‘I’d like those powers, I might just need those some day.’ He’s even said this publicly, when someone confronted him on that, politely. He said, ‘well, when I became president it was different!’  Wow! Different being president? So what about all I read, you know? It’s just to get the votes! I mean, I worked with a lot of millennials incredibly turned off by Obama. They had an extraordinary support for him, that’s one reason why he became president. You don’t hear the millennials talking about Obama in any way that’s positive now. Because he’s betrayed what he shared with the future generation of tomorrow, today.

And so that power goes to your head. It turns out that he’s an extraordinarily narcissistic president, takes personal umbrage with anyone who dares hold up America, when he’s got a legacy to protect. So actually, Obama, in some ways, some might say is worse than Bush, because he’s now institutionalising what people thought was just an overreaction after 9/11, which in some ways was understandable. What the Bush administration did was quite egregious, but institutionalising it? This is the fear here. Once you start eroding away the core of your own democracy, then it really is hard to get it back, and this kind of power doesn’t yield willingly.

Mary: It’s hard to relinquish, and to yield.

Thomas: Really hard. And again there’s this perverse incentive that failure, or a challenge to power, makes you want to hold on even more tightly, which means that to protect that, you’ve got to expand those powers, and who cares if we erode some people’s rights, you know? If you’ve done nothing wrong you have nothing to fear: well you know that harkens back to something that Joseph Goebbels said, across the border here, in terms of dark history. This is why history is just ringing in my ears every time I hear the language that comes from the government security services.

If you’re that good, if you’re really that good why didn’t you stop the attacks in Paris? You had extraordinary access to info. Then we find out that the info wasbeing shared, warning the services about certain people. Well, what happened there? You see, it’s not just having information, but what you are doing with it. That’s the analysis side. It’s not just collecting it. What are you doing with it? It becomes incredibly challenging. We don’t have enough resources…

Look let me give you an example. I remember when I was essentially exiled from the NSA, there was severe retaliation. This was before I went external, this was before everything became public with me, although I was under criminal investigation at the time. I remember talking to a colleague who works at the FBI. He said, you guys at the NSA, you’re sending us all of these false positives. We were off on all these wild goose chases. But we had to treat them all equally because we didn’t know.

Can you imagine the resources tied up? Why don’t you focus on the real threats? And we had the ability to do so, the ability to look at even massive amounts of data and connect the dots. Even with data you already had. You needed multiple sources. Then there’s the other factor, this overreliance on electronic intelligence, as if that’s the magic talisman, that’s the answer, somehow electronic intelligence is devoid of context or culture (of course it’s not). And it’s not the only way people relate and communicate.

I guess what do you want, perfect security? Surveillance cameras literally on every doorstep and on every street? Do you? I don’t want to live in that kind of society. Is that what we are going to come to? Anyone that makes a false move or that appears to be making a false move is a threat? Or are we going to start shutting down entire parts of society? I mean there are some extraordinarily dangerous calls being made, even in France, about what we need to do, right? Well yeah, if you want to turn us into a dystopian form of democracy. If you want that, okay fine. But don’t be surprised what you get.

Mary: There were four former drone operators who spoke out recently, talking about how the work they were doing, they felt, was undermining America in all kinds of ways, and making more enemies than was being effective, and that the civilian casualties or murder rates were much higher than had been admitted. Are they right to speak out about this and do your recognise that analysis?

Thomas: Yes, yes, taking an extraordinary risk. Although, they’re being defended by the attorney that defended me. No, they’re coming forward because they’re saying we are making it worse, not better.

Mary: How would they know that, sitting in a very remote location – that they’re making things worse in terms of public opinion in Pakistan and places like that. The whole system is designed to remove them from that?

Thomas: They are removed. But that’s also part of the problem. Many of them have PTSD, by virtue of having killed many, many people, including women and children. And it gets you, it gets to you.

Mary: That’s the bit they can testify to. They can say the casualty numbers and the casualty effects are higher than we are being told.

Thomas: Far higher. This is in complete contradiction to what the CIA director said, that it’s highly surgical, little or no effect. At one point he said there was no collateral damage… He actually said this. An absolute lie, of course. He was using secrecy to cover up what the real casualties were.

You have these killing-zones, and then you have, you know, basically the double pump right? So anyone who shows up to rescue, well I’ll fire another one. They deserve it. You create and store up your resentment. You claim signature strikes. You claim targeted strikes. You can claim it’s a clean kill. I mean, Obama’s gone far further with drones than Bush ever thought about, right? And people were upset with Bush about it. The secret warfare from the air, you know, these remote killing machines. What are you creating? I’ve heard people tell me, ‘you know, who cares? They deserve it.’ So what are you creating for the future? This is your blowback in terms of history.

Mary: It’s not even particularly sophisticated technology.

Thomas: Actually it isn’t, it turns out.

Mary: Anyone can get it.

Thomas: Yes. That’s part of the blowback that I worry about. What happens if they turn around and direct signature strikes in the US? Or any place else? How do you defend against that? I mean this is sort of what you unleash as a result of your own foreign policy, even when it’s a secret.

 

Wikimedia Commons/Haxorjoe. Some rights reserved.
Wikimedia Commons/Haxorjoe. Some rights reserved
Mary: How much do you think that we in the media and the press should be activists for free speech, free press, limited state and corporate surveillance? Where do you think our role is in all this? 

Thomas: I’ve heard arguments that claim that journalists or reporters have to be balanced, right, have to be fair to all sides? The problem that I’ve seen is that you tend to take the government line, right, at the expense of actual journalism?

Mary: Why do you think that is?

Thomas:  It’s access to power.

Mary: Disclosure?

Thomas: Yep, sure is. And I’ve been on panels in the US where they made no bones about it. ‘We’re giving you privileged access. We’ll even show you classified information. And what we don’t want you to publish, well, here’s what we’ll let you publish. It’s classified, but because we’re authorising it, it’s okay!’ A contradiction in terms.

Here, we hammer other countries when they don’t engage in aggressive journalism standing up, and yet when it comes to our own activity… In every single case, including my own, in which espionage was either part of the threat of the prosecutor, or what they would actually charge you with, whether or not they’d actually charge you, it is extraordinary how you only hear about all the people actually charged with espionage like myself, like John, like all the others. But guess what’s also involved in all this – is the press. The press is implicated in every single one of them.

In fact the chief prosecutor in my case, I mean this is what’s extraordinarily chilling, the chief prosecutor in my case said that what Mr Drake did, making the accusation before the judge, during the pre-trial proceedings, was worse than being a spy, because what Mr Drake did, in retaining information for the purposes of disclosure, someone might receive it – i.e. the press – and call out the government on its own wrongdoing! It gets in the press and it gets published, which means that everybody gets to see it, including the spies. So, ‘if we had something stronger than espionage we would have used that, but that was the strongest criminal statute we have.’ Wow, ‘you’re implicating the press!’ We’ve seen this in other cases like the Jeffrey Sterling case, how far the government is willing to go to spy on journalists in media outlets.

Mary:  This is the thing I keep coming back to. It’s in journalists’ interests to make this case, because they are the ones being spied on and they’re the ones being surveilled.

Thomas: It’s taken a while to get people, even in the press, to wake up to this fact in the US. I used to have many conversations off the record, not attributed, although it would end up in the press, where they wouldn’t believe that the government was doing this: ‘the government can’t spy on me!’, and I said, ‘they had a special programme called First Roots at NSA, which was an even more secret part of the mass surveillance programme. They were using it to monitor reporters and journalists just like you. Wake up!

Mary: And they wouldn’t believe you?

Thomas: They wouldn’t believe me, because you can’t do that in the US. ‘We have the First Amendment.’ ‘Really, what do you think has been going on for the past number of years?’

Look, the government is incentivised to use the press as its stenographer. The government is incentivised to use the press as a parrot for its own propaganda, it really is. History not only demonstrates this, but even in democratic countries, we want the press to serve as our mouthpiece, wherever possible. No matter how else you couch it. Obviously autocratic regimes do it in a more extreme way. They in essence control the press.

Mary: Do you think journalists are waking up to this now?

Thomas: I do, but there’s always this risk. Ah, you’re threatening our security with what you publish. ‘I can’t publish that.’ Really? I just wish even in this country, why aren’t they asking the hard questions about why the system failed to keep people out of harms way? Especially when we were monitoring them, we knew about the neighbourhoods, we had these euro-nationals, as some of them were – we had them on lists.

Mary: They knew exactly who to arrest afterwards.

Thomas: Yeah, what does that tell you? Why didn’t they arrest them before? This is the whole thing. Because what was sacrificed? People’s lives, innocent lives.

Mary: 74 percent of French people polled said that they would put all people suspected of terrorism in a detention centre, including 64 percent of socialist supporters who now think that. Would you agree with that?

Thomas: If you want to throw away due process, throw away rights, yeah sure, gee, then we’ll just round up anybody that looks suspicious. Jesus, really, you know, we have detention camps, really camps. ‘Oh wow, really?’ Better wake up to European history and what happens when you start separating people out, the sheep and the goats. ‘We’re just going to define who’s acceptable and who isn’t really?’

I thought a democracy was multicultural by nature, right? And that you still don’t lose the essence and the fundamental principles and practices of who you are, right? There’s been a lot of sacrifice for liberty and security, a lot. The security is our liberty. Fundamentally, if you lose that, in terms of history we are not much different from fascism… If you want to go down that path, I mean go ahead. It’s a dystopian democracy that you get. I don’t want to live in a dystopian democracy, whatever privileged position you have on the surface. And the right-wing party in France, you know, is getting renewed interest.

Mary: So you would say that it’s a completely false dichotomy: this choice between security and liberty?

Thomas: Totally. It’s the lesson of 9/11. The New York Times editorial board wrote an extremely powerful editorial just yesterday, about surveillance. We don’t need to upend the law, violate our laws in the name of – what?… it’s not necessary.

Mary: Thank you.

***

This article is published as part of an openDemocracy editorial partnership with the World Forum for Democracy. The insights gathered during the annual Strasbourg World Forum for Democracy inform the work of the Council of Europe and its numerous partners in the field of democracy and democratic governance.

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