'Is This the Country We Want to Keep?': Whistleblower Threatened with 35 Years in Prison, Warns of Developing Tyranny
In my case, while a senior official at the National Security Agency, I found out about the use of electronic eavesdropping on Americans, turning this country into the equivalent of a foreign nation, for the purposes of blanket surveillance and data mining, blatantly disregarding a 23-year legal regime that was the exclusive means for the conduct of such electronic collection and surveillance, which carried criminal sanctions when violated. I also discovered that NSA had withheld critical and crucial intelligence prior to 9/11 and after 9/11, as well as data and information that was available but remained undiscovered, and if shared—if shared—could have made a decisive difference alone in preventing the 9/11 attacks from ever happening. I also learned about a massively expensive and failing surveillance program under development called Trailblazer that largely served as nothing more than a funding vehicle to enrich government contractors and keep government program managers in charge, when a cheap, highly effective, and operational alternative called ThinThread was available in-house that fully protected Americans' privacy rights under the law, while also providing superior intelligence to this nation.
These secret programs which deliberately bypassed the Constitution and existing laws were born during the first few critical weeks and months following 9/11 as a result of a willful decision made by the very highest levels of this government. Such shortcuts and end-runs were not and never necessary, as lawful [incompr.] existed that would have vastly improved our intelligence capability with the very best of American ingenuity and innovation, as well as time-honored noncoercive interrogation techniques.
Jesselyn and I both—we both raised our concerns through internal channels, including our bosses and inspector generals. In my case, I also spoke with the NSA Office of General Counsel and became a material witness for two 9/11 congressional investigations. I also became a material witness for a multiyear Department of Defense Inspector General audit of Trailblazer and ThinThread, NSA, based on a September 2002 hotline complaint that attempted to expose massive fraud, waste, abuse, and mismanagement at NSA and the NSA's use of a data collection program that was far more costly, far more threatening to American citizens' privacy rights, and far less effective in supporting intelligence requirements, rather than the readily available alternative named ThinThread. This complaint was signed by my former NSA colleagues Kirk Wiebe, Ed Loomis, and Bill Binney, as well as Diane Roark, the former professional staffer from the House Permanent Select Committee on Intelligence who had oversight accountability for NSA, and had all retired by this time from government service. I was the unnamed senior official in this complaint, working directly at NSA.
The throwing out of ThinThread was due to a multibillion dollar buy-versus-make, money interests, and political connections, all surrounding personal gain and institutional self-interest. The throwing out of ThinThread was also due to blatant ignorance and disregard for policy under the Federal Acquisition Regulations and the Fourth Amendment of the Constitution. Either way, the same result: critical breakthrough information technology; security and defense innovation and ingenuity. The very best of who we are as Americans was denied to the American people and precluded from use in providing for the common defense under the Constitution, as were a number of other programs, with an incalculable loss of intelligence, as part of the great historical tragedy of what could have been, including the disruption, even the prevention, of 9/11.
ThinThread had a laudatory purpose: find the terrorists, modernize a very outdated signals intelligence system from end to end, and thus protecting the U.S., its soldiers, and its allies by doing it all legally. However, it got caught up in the bureaucratic jealousy, turf, and debilitating internal corporate political jockeying and bickering that afflicts all too many large organizations once they necessarily become more organized and bureaucratic after departing the initial creative stage.
ThinThread also illustrates in spades the widespread difficulty of protecting the iconoclastic, creative, and out-of-the-box, contrary-to-the-status-quo thinking people and their new, even revolutionary ideas, a problem especially difficult within an—when an organization has an effective monopoly in this country like NSA. In part it was a threat because it was developed rapidly on a shoestring budget by a small staff, the NSA equivalent of a Silicon Valley garage startup, with a far superior, vastly less complex design, and only cost about $3 million to get it to a fully operational and ready demonstration stage that worked, instead of the multiple billions spent over several years on the old technology with almost nothing to show for it except for some very fancy PowerPoint slides.
With all the unitary executive privilege, all the secrecy and exigent conditions used as the excuse to torture, deny due process, and engage in off-the-books electronic surveillance, Jesselyn and I followed all the rules as whistleblowers until it fundamentally conflicted with our oath to uphold the Constitution. Then we both made a fateful choice to exercise our First Amendment rights. We went to the press with patently unclassified information, about which the public had a right to know.
However—however—rather than address its own corruption, ineptitude, and illegality, the government made us targets of federal criminal leak investigations, part of a vicious—I repeat, vicious—campaign against whistleblowers that started under Bush and has now come to full fruition under Obama, inverting the logical paradigm. We were transmogrified from public servants trying to improve our government, into traitors and enemies of the state. The government subjected us to severe retaliation that started with forcing us from our jobs as career public servants, rendering us unemployed and unemployable, while [incompr.] a wrecking ball into the conditions of our jobs, in my case a security clearance, and in Jesselyn's case, state bar licensure. We were blacklisted and no longer had a stream of income, while simultaneously incurring attorneys fees and necessitating second mortgages on our respective homes. But that was nothing, that was nothing compared to the overkill reprisal to come, placement on the no-fly list for Jesselyn and prosecution under the Espionage Act for me.
What we experienced sends unequivocally a chilling message, an unequivocally chilling message about what the government can and will do when one speaks truth to power: a direct form of political repression and censorship. If sharing issues—if sharing issues of significant and even grave public concern which do not in any way compromise our national security is now considered a criminal act, we have strayed far from what our founding fathers envisioned. When exercising First Amendment rights is now considered espionage, this is anathema to a free, open, and democratic government.
As Americans, we did everything we could to defend the constitutional rights of all U.S. citizens, which were violated and abused by our own government when there was no reason to do so at all, except as an excuse to go to the proverbial dark side, by abrogating unaccountable, irresponsible, and off-the-books unilateral executive power in secret. Once exposed, these unconstitutional detours were predictably justified by vague and undefined claims of national security, while aided and abetted by shameless fearmongering on the part of government. And so I must say, I must say it is pure sophistry to argue that the government can operate secretly with unbridled immunity and impunity, especially for such blatant illegalities as torture and wiretapping without warrants, from those it is constitutionally bound to serve and protect when providing for the common defense of this nation, and then persecute and prosecute the very people who revealed such wrongdoing and malfeasance.
Before the war on terrorism, our country well recognized the importance of free speech, privacy, legal counsel, and the right to be free from cruel and unusual punishment. If we sacrifice these basic liberties according to the false dichotomy that it is required for security, then we transform ourselves from an oasis of freedom into a [incompr.] that terrorizes its own citizens when they step out of line. These are the hallmarks—these are the hallmarks—these are the hallmarks of tyranny and despotism, not democracy, and are increasingly alien to the Constitution and our American way of life.
Jesselyn and I stand alongside other whistleblowers before us, like Dan Ellsberg and Coleen Rowley, who also nominated me for the Ridenhour Truth-Telling Prize, as well as Larry Wilkerson, an Integrity in Intelligence award recipient. We did not take an oath to see secrecy and subterfuge used as cover for subverting the Constitution and violating the law. Our oath to the Constitution took primacy.
But I fear for the Republic. When Benjamin Franklin was asked by a woman at the end of the Constitutional Convention and it went out for ratification to the 13 states, he was asked, what has been created here? He said, a Republic, if you can keep it. So what expired on 9/11? The Constitution?
Jesselyn and I became whistleblowers, and our whistleblowing was both a warning and an alert to those in government, and eventually the public, about serious wrongdoings and dangers and malfeasance created and then concealed within our government. Our whistleblowing also occurred because there was profound institutional failure, a multilayered breakdown in accountability. And today we have a frightening lack of responsibility and accountability within the national security complex, and it poses—I will mince no words here—it poses a direct threat to all our personal freedoms, as well as a clear and present danger to our constitutional republic. Both cannot coexist as a social and legal contract is being broken. Our government has profoundly lost its constitutional compass and it's been tainted to its core. And yet it is our enshrined liberties, it is our enshrined liberties that are our national security. What country do we want to keep?
Jesselyn and I took an oath to support and defend the Constitution, versus an oath of loyalty to the organization and [incompr.] used to bypass and break the law. But what is meant by personal integrity and loyalty? Our personal integrity meant that we held consistently firm and true to the ideals and values centered on upholding and defending the Constitution. By loyalty, we were steadfast in our allegiance of law of the land. However, loyalty when blind in this place ceases to be a virtue and turns into a corrupting mechanism to hide and obfuscate wrongdoing, embarrassment, and coverup. We blew the whistle because we saw grave injustice and wrongdoing occurring within our respective organizations.
In my recently successfully concluded case that ended decisively in my favor, the government wanted to put me away in prison for many, many years—in fact, at one point they threatened me with 35 years in prison—for simply telling the truth as a whistleblower and exposing government wrongdoing and illegalities. The government found out everything they could about me and turned me into an enemy of the state, everything they could about me over many years, before I was even indicted. Having this secret ability, this secret ability to collect and analyze data with few if any substantial constraints, especially on people, is seductively powerful, and when particularly done without the person's permission and done so in secret, it is the ultimate form of control over another. So it shows [incompr.] big business and violate the Constitution. All of it was so unnecessary. American ingenuity and the Constitution were quite sufficient to protect and defend the country with the best and under the law. There was no—I repeat—no need to go to the dark side.
Those who've served in the military understand what it means when the flag is flown upside down. It means you're under duress. It is a sign of distress. When the government hides behind its veil of secrecy, when it professes openness and transparency while practicing opaqueness and deceit, that's when its citizens need to become very aware of what that future might hold regarding what liberties they believe they possess that are then eroded, and even taken away, in the name of national security.
Modern governments today increasingly perform mass surveillance of their citizens, explaining—explaining that they believe that it's necessary to protect them from dangerous groups such as terrorists, criminals, or politically subversive dissenters, in order to track the citizenry and maintain social control. Read the history books. We are fast approaching—we are fast approaching a genuine surveillance society in the United States, a dark Orwellian future where every move, our every transaction, our every communication, and our every contact is recorded, compiled, and stored away, ready to be examined and used against us by the authorities whenever they want to at any time. What country do we want to keep?
Mass surveillance will erode our privacy, and yet privacy is an absolutely essential prerequisite to the exercise of our precious individual freedoms, the inalienable rights we have as human beings to life, to liberty, and to the pursuit of happiness. And yet the erosion of privacy also weakens the very constitutional foundations and boundaries of our democracy.
Five centuries ago, Machiavelli explained how to undertake a revolution from above without most people even noticing. On his Discourses on Livy, he wrote that one, quote, "must at least retain the semblance of the old forms; so that it may seem to the people that there has been no change in the institutions, even though in fact they are entirely different from the old ones", unquote. In other words, keep the old government structures; meanwhile, you make profound changes to the actual system, because the appearances are all that most people notice. So, today, instead of seeing the mere corpse of the republic in which we supposedly live, we only see the clothing. Those clothes would appear to look the same as before, even if increasingly worn. We have had a quiet revolution that has not eliminated our elected representatives; it has simply made them largely irrelevant, especially since Congress is largely preoccupied with Wall Street.
It has been a long journey to our current state of affairs, and wars and conflicts have been a major catalyst in that journey, especially since World War II. Most wars fought by the United States have added power to the executive branch while taking away power from the Legislature. I consider—again, being a student of history, I consider the immediate aftermath of World War II as a real turning point, when the American dream began to go south, at the very moment when the U.S. sat astride the world at the pinnacle of power. And therein lies our problem, for this is when the American republic began its transformation to a national security state and then exponentially accelerated as a result of 9/11 into a top-secret America. Eisenhower warned us about the rise in this kind of a complex in his farewell address in 1961. Frank Church feared the future and that given the right circumstances, turning back might not be possible if the national security surveillance complex turned its enormous capabilities on the U.S. with even more advanced technology. We now live in a post-9/11 America, only suddenly to discover that we are not doing the driving, our brakes are failing, and others are in the front and back seat, and some are even following us.
What country do we want to keep?
We increasingly no longer govern ourselves, as in of, for, and by the people. Consider the nonstop number of U.S. military actions around the world these days. And when did Congress last issue a formal declaration of war, the only branch of government, the only body in the United States federal government system that can actually declare war? When was that? Consider the ramming through—is absolutely up-to-date, right now, in this moment, what's going on. Consider the ramming through of the Patriot Act a bare month after 9/11, an act, I would add, that NSA was already violating with even more secret programs when it was obvious that not a single member of Congress read it through thoroughly. Does any single member of Congress read their bills through thoroughly? And have you wondered what is really the secret interpretation by the executive branch of section 215 in the Patriot Act? And what about Section 1031, 1031, the current National Defense Authorization Act bill that would authorize the indefinite detention, I repeat, the indefinite detention of American citizens.
I used to monitor East Germany when I flew in RC-135s during the latter part of the Cold War—an absolutely fascist state. Given what I have experienced over the past number of years, I have a lot of bad memories.
Or how about habeas corpus, gutted on October 14 of this year when Janice Rogers Brown of the Appeals Court for the District of Columbia held that in habeas suits—for all the lawyers, at both the table and in audience, this should really ring with disturbing alarm—judges must grant official government records the presumption of regularity, defined as simply accepting that an official act has been done and that it will be presumed until the contrary is proved, that the said act complied with any necessary formalities and the person who did it was duly appointed. With such a massively expanded ability by the government to spy on your personal life, we might as well bid adieu to the Fourth Amendment, the foundation of a citizen's integrity as an individual person and in their personal affects in this country, as well as your ability to speak and associate freely with others under the Fourth Amendment. Have we become the proverbial boiling frogs?
What country do we want to keep?
Consider the conviction, as I summarized now for you, held by this country's founding fathers, that a functioning constitutional republic and democracy requires what? An informed citizenry. So what happens in the case of an uninformed citizenry? The experiment—the experiment in government by the people is doomed to failure and would inevitably transform into what we increasingly see today. Is this the day of [incompr.] Is our exceptionalism an excuse to end-run the very foundational precepts of this republic and violate certain [incompr.] that must never ever be transgressed, like torture is never—. I went through all those things you hear about in terms of enhanced interrogation techniques. I went through that as an air crew member during the Cold War, just to know what it was like. Imagine my horror when I read and heard from others what we did—used it for. Torture is never an acceptable human value under any circumstances. And eroding away the First and Fourth Amendments removes the very heart of the experiment's exceptionalism. Machiavelli had it right, and as the old song goes, something's got to give.
What else are we willing to give up? I gave up a lot. I have a lot to deal with in facing what I faced with the government for the past four years.
Are we becoming the national security state under surveillance always, the N.S.S.U.S.A.? Is secret government the new fig leaf for a quaint and outmoded Constitution? Orwell's 1984 is real, and now already, I repeat, already screamingly relevant. Only the government can create a police state. No one else can. And our technology can now make that happen. There is a long list, a long list of both private industry and government actions that are ripping away our privacy and our Fourth Amendment rights as we speak and our ability to speak freely about it. I challenge you, I challenge you all to demand accountability, to update our protections in the internet age, to insist upon adherence to the Constitution, conservative and liberal and independent like. Even in the open press we know enough about what both the industry and government are doing.
Do you care? What will you do about it? What country do we want to keep?
Do we want to continue to have a burgeoning military-industrial-congressional-intelligence-surveillance-cybersecurity-media complex? For whom does it benefit? Do we want to concede the eroding of basic human rights? Why? Because we fear enemies and that creates a need for security, and are then persuaded that human rights are ignored because of the primacy of the national security state beyond legitimate protections and identifying those who would actually do us harm, both abroad and domestically, as a unifying cause for obsessing over national security and the use of fear by the government to control the public and private agenda? What country do we really want to keep?
So I leave you with this as I channel Frederick Douglass. On August 3, 1857, Frederick Douglass delivered a West India Emancipation speech. At Canandaigua, New York, on the 23rd anniversary of the event, he said, quote (please listen very carefully): "The whole history of the progress of human liberty shows that all concessions yet made to her august claims have been born of earnest struggle. The conflict has been exciting, agitating, all-absorbing, and for the time being, putting all other tumults to silence. It must do this or it does nothing. If there is no struggle there is no progress. Those who profess to favor freedom and yet deprecate agitation are men who want crops without plowing up the ground; they want rain without thunder and lightning. They want the ocean without the awful roar of its many waters." Let me translate into today's language. Power and those in control concede nothing, I repeat, concede nothing without a demand. They never have and they never will. Every one of us, every one of us in this room and beyond this room, each and every one of us must keep demanding, must keep fighting, must keep thundering, must keep plowing, must keep on keeping things struggling, must speak out, and must speak up until justice is served, because where there is no justice there can be no peace.
What country do we want to truly keep? Consider what actions you will take when you leave this evening. After all, it is our country. So take the necessary action to conserve the very best of who we are and can be for this generation, as well as future generations to come.