Getting to the Bottom of the Intelligence Community; Is There a Way?

NSA whistleblower Thomas Drake is in the news again, with an interview in Salon and his own blog posting in Daily Kos, rambling on in the way whistleblowers are supposed to do, muddying the waters about the issues, and making a claim about the Obama administration that has found its way into a general indictment levied against President Hope by the disenchanted left: That Obama has gone after whistleblowers and leakers more than Bush ever did.

I doubt that this is true but would be interested in being corrected if someone’s got some facts.

As an executive at the National Security Agency (NSA), Drake was a source for a 2006 Baltimore Sun series about a billion dollar NSA program called Trailblazer, a software system.  Drake alleged that the program did not work, violated Americans’ privacy rights, and that was inferior to a rival program called Thinthread (NSA code names are actually one word).  He was indicted on numerous felony counts of espionage before the prosecution decided to reduce the charges to misdemeanors.

Drake says in his blog posting this week “that the Obama Administration is engaged in an unprecedented war against whistleblowers and the 1st Amendment and using the Espionage Act (a World War I era statute designed to go after spies and not whistleblowers), as a bludgeon to target, investigate, prosecute and indict those revealing government war crimes, abuses of power, illegalities and wrongdoing – both within and without the government.”

Salon says rather casually that Drake never disclosed classified information.  Drake opines that “it is not a crime to reveal government wrongdoing to a reporter.”

The problem with Salon’s characterization and Drake’s bluster is that they are both wrong.

What is classified information is what the government decides is classified.  A $10 billion industry exists to classify information and guard it, and unfortunately, they decide.  National security information is classified based upon Executive Order and government regulations, not law, and the courts have consistently declined to second guess the executive branch on these matters.

Hence, a government employee, particularly one like Drake who held high level clearances and signed non-disclosure pledges, should know better, and is guilty of something.  It’s not quite espionage, but there are plenty of other ways the government could choose to prosecute him: on special laws protecting communications security, on issues of stolen government property, on violations of his pledges.

Drake seems to think that because he leaked classified information about a program to a reporter – revealing, as he likes to say, “waste, fraud, and abuse” — somehow the information is automatically not classified and protected by whistleblower protection statutes.  Again he is wrong on all counts.

[Updated March 14, 2012:  Drake’s lawyer points out that Drake was not charged with leaking classified information, that he was charged with “improper retention of … allegedly classified information.”  I stand corrected.]

The reason why the case fell apart is that Drake just happens to also be protected, protected by the news media and vague concepts about the First Amendment, protected by Congressional supporters, protected by a certain American aesthetic about government malfeasance and overreach, and most important I guess, even protected by his very inside knowledge, what the intelligence community calls ‘graymail,’ his knowledge of even more classified information that might come out if the government were to take him to trial.

Most important though, in the cycle of whistleblowers and the news media’s squeezing them dry and throwing them away is that for all of what Drake “revealed,” we really know very little about what NSA is doing.  If you read the Salon interview or the earlier Jane Mayer profile in The New Yorker, you might imagine you understand the battle between the secret programs Trailblazer versus ThinThread.

I don’t, and the reason is because the reporters themselves don’t understand.  Similarly when The New York Times reported in 2009 from another NSA whistleblower that the code name of an illegal Email program was Pinwale, and that the database was “systematically [creating] archives both foreign and domestic e-mail messages by the millions,” we just don’t know.

Drake describes the NSA as a rogue agency that operates in a black box that the public cannot penetrate.  I don’t know if its rogue, but I do know that it’s huge and does operate in a black box.  Congress seems to condone that: It is very big money after all.

Trailblazer, ThinThread, Pinwale: These are just three of hundreds of secret NSA programs, none of which we really know anything about.  I’ve collected a list of current (2012) NSA programs from contracts and work orders, corporate briefings and other documents.  Maybe the news media and Congress and the people should ask what’s going on rather than focus on the messenger, no matter how unfortunate his former intelligence career ended.

Here’s a novel notion: Maybe they are not “fraud, waste, and abuse” at all – maybe it’s just excess and autonomy and misdirection and even a waste of time and money.  We’d never know though if fraud, waste, and abuse remain the only standards by which we are allowed to pry.

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