The Federal Government's Vindictive Legal Assault On NSA Warrantless Wiretapping Whistleblowers

from the this-is-not-the-country-we-believe-in dept

A bunch of folks have been linking to Jane Mayer’s absolute must-read of an article about the federal government’s prosecution of Thomas Drake for supposedly violating the Espionage Act in telling a reporter about some bureaucratic problems with the NSA’s warrantless wiretapping program (details of which had already been leaked by others). The article goes through the history of warrantless wiretapping, including how aggressive the NSA and the federal government has been with the program, and how it avoided pretty much any and all oversight. It also talks to Bill Binney, a long-time NSA employee, who created the basic algorithm that’s used to record pretty much all electronic communication. While he had originally put in important safeguards to keep it from following conversations in the US without a warrant, apparently, such safeguards were removed:

Binney expressed terrible remorse over the way some of his algorithms were used after 9/11. ThinThread, the “little program” that he invented to track enemies outside the U.S., “got twisted,” and was used for both foreign and domestic spying: “I should apologize to the American people. It’s violated everyone’s rights. It can be used to eavesdrop on the whole world.”

The story has many more details not just on the program itself, but also on the attempts by a few to make it legal and on the NSA’s and the White House’s resistance (under both Bush and Obama) to actually bring the program into agreement with the law. But the worst part is the excessive aggressiveness with which the feds then tried to bring charges against the various whistleblowers, attempting to reinterpret the Espionage Act in a way that was never intended. The people involved brought up serious concerns over both government law-breaking and over the massively wasteful spending of US taxpayer money in the process. These are classic whistleblower issues — and not issues of state security. And yet, the whole thing gets twisted, in a clearly vindictive way, to make it out as if national secrets were revealed.

Morton Halperin, of the Open Society Institute, says that the reduced charges make the prosecution even more outlandish: “If Drake is convicted, it means the Espionage Law is an Official Secrets Act.” Because reporters often retain unauthorized defense documents, Drake’s conviction would establish a legal precedent making it possible to prosecute journalists as spies. “It poses a grave threat to the mechanism by which we learn most of what the government does,” Halperin says.

The Espionage Act has rarely been used to prosecute leakers and whistle-blowers. Drake?s case is only the fourth in which the act has been used to indict someone for mishandling classified material. “It was meant to deal with classic espionage, not publication,” Stephen Vladeck, a law professor at American University who is an expert on the statute, says.

And this is why you can see that this particular vindictive and ridiculous prosecution is so important: because if the feds get a ruling in their favor, they can go after all sorts of others who publish classified info. That is a massive restriction on the freedom of the press that we thought was established under the First Amendment.

Tragically, the article suggests that President Obama — who has insisted repeatedly that he’s in favor of transparency and whistleblowing — has a blindspot on this matter. In his mind, he’s built up an artificial separation between whistleblowing that is good and that which he doesn’t like. If he doesn’t like it, it somehow puts national security at risk. Yet the details of the Drake case, in particular, suggest that this is not about national security at all, but it’s a pure whistleblower situation. Drake’s revelations may have embarrassed the feds, but that’s not supposed to be illegal.

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Comments on “The Federal Government's Vindictive Legal Assault On NSA Warrantless Wiretapping Whistleblowers”

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Anonymous Coward says:

“I should apologize to the American people. It’s violated everyone’s rights. It can be used to eavesdrop on the whole world.”

Don’t worry, Bill. Nobody blames the well-meaning scientist whose work is seized by the men in black and twisted to their own nefarious ends. It’s just one of those things that happens to every scientist sooner or later.

…On a semi-related note, why isn’t there a TVTropes page for that? Closest thing I could find is Reluctant Mad Scientist, but that doesn’t really cover “scientist who is working on an invention to better mankind that ends up being stolen by a villain and used for evil”.

Anonymous Coward says:

Re: Response to: Anonymous Coward on May 16th, 2011 @ 4:13pm

“Richard Gatling created his gun during the American Civil War, he sincerely believed that his invention would end war by making it unthinkable to use due to the horrific carnage possible by his weapons.”


PW (profile) says:

Re: Re:

Since reading this line earlier today, it has stuck with me as an example that technologists too often behave purely on curiosity, but without consideration for the consequences of their action. So Binney really believed that his technology would be used on people outside of the country, but it was inconceivable to him that it would be directed at our own citizens? Really?

We see this happening over and over again. The Gatling gun example is one. Le? Szil?rd (, was also remorseful of the use the atomic bomb he helped invent. We see this in medicine w/DNA sequencing (ie. 23and me) and gene splicing. I’m not suggesting we turn into Luddites, but by same token we do need ethics to play a role in technological and scientific discovery. Today, I fear ethics don’t play an important role, and there’s a lot of “just do it, and we can apologize later” mentality.

The folks espousing “singularity” are the latest to really give me the creeps w/their obsession of merging man and machine without taking into account the full ethical and social considerations of those actions.

Jose_X (profile) says:

Re: Re: Re:

>> but by same token we do need ethics to play a role in technological and scientific discovery. Today, I fear ethics don’t play an important role, and there’s a lot of “just do it, and we can apologize later” mentality.

Progress is inevitable. As more clues of any given puzzle show up and people have time to digest the past clues, the odds of solving the puzzle and gaining more clues to other puzzles keeps going up. It’s difficult to resist this lure to participate if you are in a particular environment that has access and the discussion is on intellectual challenges (puzzle solving) that are in your interests. We can complain about anyone joining the NSA in the first place, for example, but, once you are there, you will participate towards some degree of advancement and with lots of money behind you. And if you don’t participate, any of many others will.

The problem runs deeper.

What about the person in a position and with some precedence to turn their position into huge profits while at the same time arguably helping the nation and helping keep up with “the bad guys”.. and naturally and conveniently trusting themselves to run the controls so that “others don’t abuse it”?

We have a global problem of exploitation of other humans. Of over-trusting ourselves and under-trusting others. Of overvaluing ourselves and undervaluing others. Of being gander while mocking geese. It’s too easy to contribute to this human problem and not do enough to fight it.

Anyway, transparency is possibly the most important step in solving almost any human problem. It makes it a bit easier to have people think outside themselves and to get feedback (and checks and balances) earlier on in the process if they don’t. Transparency should always be instated as early as possible and watched over or else it will become that much more difficult to convince guilty and empowered parties later on to instate it (not to mention the window of opportunity for exploitation that existed in the interim). Plus, transparency helps reduce fears.

Anonymous Coward says:

Re: Re: Re: Re:

We have a global problem of exploitation of other humans. Of over-trusting ourselves and under-trusting others. Of overvaluing ourselves and undervaluing others. Of being gander while mocking geese. It’s too easy to contribute to this human problem and not do enough to fight it.

For a solution, I personally favor any religion (Christianity, Buddhism, etc.) that requires its members to obey the Golden Rule. The general populace isn’t bright enough to value the long-term benefits of selflessness over the short-term benefits of selfishness, so attaching a divine “BECAUSE I SAID SO!” to empathy tends to help.

Any solution would be a good solution, though. Most of the problems in the world today are caused by people lining their own pockets at the expense of others.

A. Lloyd Flanagan (profile) says:

Re: Re: Scientific ethics

The problem with your point of view is that presupposes that the inventor of a technology can anticipate the uses to which it will be put, and take action to prevent the “bad” ones. In fact, it is rare that an inventor is able to guess the future path of his/her work. The guys who developed a resilient network for military communications, for example, had no way of knowing it would become a global network where just anyone could post comments. It’s not their fault they never put in a “troll filter”. 😉

aldestrawk says:


It is ironic that the case against Thomas Tamm was dropped by the Justice Department a few months ago while they are continuing the case against Thomas Drake. The case against Drake arose because the FBI/NSA was searching for the source of the leak to the NY Times about “stellar wind”, and Tamm was the original source for the Times. This adds to the feeling that the choice of leak cases is arbitrary and driven by other motivations than national security.

Anonymous Coward says:

Re: one word started it all

Perhaps they should call the new system “omnivore” for it truly eats everything.

In 1986 I adapted an internal network debugging tool to allow monitoring packets on a LAN so that the Marine Corps could detect intruders. The company was Nestar and the tool was called the “sniffer”. Nestar was acquired by Digital Switch and the founders were forced out. They were allowed to take this internal tool with them and developed it into a full fledged product at their new company, Network General.
Carnivore was just a single PC running sniffer type software.

Jim Linch says:

After reading that excellent report, my question is “Who is the real criminal here?”

Obama and his cohorts (and previously Bush) are prosecuting false charges against an innocent man because he criticized NSA’s massive illegal boondoggle used to spy on Americans without warrants.

This is playing an aggressive game in hopes that the criminals in the NSA and administration won’t, themselves be brought to justice. So transparent here, and the crooks made a killing outsourcing the work to their own contracting firms.

Oh, and they are seeking to PERMANENTLY destroy the Constitution and destroy America, to make a buck and avoid paying for their crimes over the next few years. These are super criminals who are destroying the lives of our children as we speak.

Lancelot says:

what do Mike Masnick, Sergey Brin, Eric Goldman, Steve Ballmer, John Pospisil and all the other sleezy commentators on this site have in common? You guessed it — they are all of Middle Eastern descent, are hairy, beak-nosed, pock-marked, short as dwarves, and viciously vindictive! Why do the same commentators post on this forum over and over and over again? Because they are all Mike Masnick’s henchmen, slotted to carry out his evil mission. Mike Masnick is a midget whose ugliness is only exceeded by his hairiness. I can’t think of anyone uglier, unless it’s Sergey Brin’s wife whose horse face embarrasses all self-respecting equines. Why don’t you ugly, misshapen and pitiful swine all return to your origins — hell — where you can serve the Devil even better!

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