Pay Any Price (38 page)

Bill Binney has been suffering from diabetes that he believes was triggered by a case of hepatitis A he contracted from food he ate in the NSA cafeteria. He has suffered four episodes of MRSA since 2008, and has lost his right foot and left leg below the knee. He now must use a wheelchair. Whether stress from the federal investigation was a factor in his health problems is difficult to determine. “Actually, my medical problems seemed to make the government crap trivial,” he now says.

After his home was raided, Ed Loomis felt betrayed by the system that he had been a part of all his life. He became so embittered and traumatized that his wife left him. “Her departure was of my own making along with the able assistance of the U.S. Government,” Loomis says now. “My personality metamorphosis was created solely from being dishonored by NSA. . . . It embittered me to the point where I had virtually withdrawn from most friends and family out of utter shame and embarrassment. I morphed into a curmudgeon, purchased a couple of handguns to test whether the Men in Black would allow the purchase to go through.”

Today, Thomas Drake has emerged from the wreckage of the government's case against him and is trying to put his life back together again. In a deal to end the case as rapidly as possible, he agreed to plead guilty to a single misdemeanor charge related to the improper handling of a document that the FBI found at his house during its raid. He served no jail time.

 

Drake has since become celebrated and was awarded the Ridenhour Prize for Truth-Telling, given annually to whistleblowers. It is named for the soldier who blew the whistle on the My Lai massacre in Vietnam. Drake works in an Apple store in Bethesda, Maryland, in order to help make ends meet. In October 2013, he traveled to Moscow to meet with Edward Snowden and participated in a small ceremony in which Snowden was presented with an award as an intelligence whistleblower. (Snowden has said that the government's persecution of Drake was one reason he decided to leave the United States before leaking documents to the press.)

Diane Roark, by contrast, has received almost no public recognition for her repeated efforts to try to stop the NSA program. She still lives quietly in Oregon and has been relying on alternative medical treatments to deal with her breast cancer. “I know I did the right thing in challenging the completely unnecessary threat to our liberties and to our very Republic,” Roark now says. “It was, after all, what I was paid to do and what was rightly expected of me. I will never regret it.”

 

Stellar Wind was the start of a modern American Big Brother, but the surveillance state certainly did not end with the public disclosure of the NSA's domestic spying by the
New York Times.
Edward Snowden's disclosures in 2013 revealed that, more than a decade after 9/11, the capacity of the NSA and the rest of the U.S. government to spy on American citizens has gone far beyond the original Bush wiretapping and data-mining programs.

After the
New York Times
disclosed the existence of the NSA program, the Bush administration staunchly defended its actions. Later, the White House reluctantly agreed to have Congress pass an overhaul of the FISA law that largely codified the program. In the legislation, the FISA Amendments Act of 2008, Congress even provided retroactive legal immunity for the telecommunications companies that had been involved with it. Sen. Barack Obama, then the Democratic candidate for president, voted for the telecom immunity provision, angering many of his liberal supporters in the midst of the 2008 presidential campaign while providing a preview of his hawkish embrace of the Bush approach to the war on terror that he would display as president.

In the years since, the government's surveillance capabilities have expanded radically, as the NSA documents leaked by Snowden reveal. In fact, the ability of both government and business to track the daily activities of Americans, in something close to real time, has been developed, refined, and expanded over the past few years, with little public debate. A decade of technological change and the rise of social media have shredded the traditional concept of privacy in America. One NSA contractor observed that Americans are now living in a “post-privacy age.”

Once the NSA embraced the Internet and a drift-net style of data collection, the agency was transformed. The bulk collection of phone and e-mail metadata, both inside the United States and around the world, has now become one of the NSA's core missions. The agency's analysts have discovered that they can learn far more about people by tracking their daily digital footprints through their metadata than they could ever learn from actually eavesdropping on their conversations. What's more, phone and e-mail logging data comes with few legal protections, making it easy for the NSA to access.

One 2012 NSA document leaked by Snowden provides an overview of how the NSA views the new digital world. The document, titled “Sigint Strategy, 2012–2016,” makes it clear that NSA officials believe that things have never been better for electronic surveillance—and they are intent on keeping it that way. The strategy paper proclaims that the NSA is now living through “the golden age of Sigint,” largely because of the explosive growth in digital information ripe for NSA collection. Between 2006 and 2012, total digital information grew tenfold.

The strategy paper shows that the NSA is determined to influence U.S. policy in ways that allow it to retain its vast powers of data collection, and even expand them further. The NSA will “aggressively pursue legal authorities and a policy framework mapped more fully to the information age,” the paper states. “For Sigint to be optimally effective, legal, policy and process authorities must be as adaptive and dynamic as the technological and operational advances we seek to exploit.”

The NSA has been flourishing by taking advantage of the fact that the United States has not yet had a comprehensive national debate over how to properly strike a balance between the government's powers of domestic surveillance and the privacy rights and civil liberties of American citizens. That is because the NSA's powers have been expanded in secret, and the public has only learned about domestic spying from a series of whistleblowers forced to risk their careers and sometimes even their lives in order to reveal the truth. As a result, the public debates have been ad hoc and piecemeal, and government officials have only grudgingly engaged, loudly proclaiming that the media leaks that sparked the debates are damaging to national security.

In fact, a draconian crackdown on leaks by the Obama administration has made it far more difficult for the public to find out how electronic surveillance and domestic spying have grown. Few are willing to face what Diane Roark, Tom Drake, or Edward Snowden have endured.

That fear has even extended to the floor of the U.S. Senate. Before Snowden's disclosures, one of the few people in official Washington who rebelled against the growth of the surveillance state was Sen. Ron Wyden, an Oregon Democrat. As a member of the Senate Select Committee on Intelligence, Wyden had been briefed by the Obama administration and the intelligence community on the extent of the government's domestic surveillance apparatus, and he became convinced that if Americans knew as much as he did, they would be shocked. Wyden was upset that the Obama administration had followed the same course as the Bush administration by using secret Justice Department legal opinions and secret court opinions to pervert the law in order to get away with massive domestic spying operations.

For years before Snowden began to leak documents, Wyden tried to sound the alarm. He publicly warned that the Patriot Act was in reality two laws, one that American voters knew about, and the real one that the government actually used. Specifically, Wyden said that the Obama administration had secretly reinterpreted the provision in the Patriot Act that covered searches of the business records of Americans—and its interpretation of that provision had given the government far greater surveillance powers than ever intended. “It is almost like there are two sets of laws, one the public can read, and one the government has developed in secret,” he complained. He said he met privately with Vice President Joe Biden to warn him that the Obama administration was going down the wrong path on domestic spying.

But Wyden refused to publicly explain how the administration was manipulating the law, and would not say exactly why he thought what the government was doing would shock the nation. He said that because the information was classified, he could not publicly detail his complaints unless the Obama administration and the intelligence community agreed to declassify the material, and they refused do so.

Wyden could have gone to the floor of the Senate to discuss the domestic spying openly, since he had legal immunity as a member of Congress. But the Obama White House and top intelligence officials would almost certainly have pressured the Senate's leadership to strip Wyden of his membership on the Senate Intelligence Committee, and he would thus have lost access to any further information on the subject. Wyden was left in the bizarre position of warning the public about something that he couldn't discuss.

Most ironically, it was only after Edward Snowden began to leak documents that Wyden felt free to say publicly exactly what he had been warning about for years. After Snowden's disclosures revealed that the NSA was relying on secret law to obtain the private data of millions of Americans, Wyden confirmed that Snowden's leaks had disclosed what he had been concerned about. That meant that a low-level whistleblower had achieved what a U.S. senator could not, proving just how dysfunctional Washington had become. Wyden's experience offered conclusive proof that Snowden could never have triggered a national debate by working within the system.

 

Threats and alarms about terrorism gave the NSA room to expand domestic surveillance in the aftermath of 9/11; now threats posed by cyberattacks have given the NSA maneuvering room once again. And once again, government secrecy has prevented the public from understanding the true nature of the cyber threat or knowing the full extent of the government's intrusions into their online privacy in the name of cybersecurity.

With Osama bin Laden dead and terrorism on the wane,
cybersecurity
is the new buzzword in Washington, the latest justification for the expansion of the government's surveillance powers, and the new cash cow for defense contractors.

Rod Bergstrom tried to warn Washington about what was coming. As director of the National Cybersecurity Center at the Department of Homeland Security in the late Bush years and the early months of the Obama administration, he saw evidence that the NSA was maneuvering to take control of the government's cybersecurity efforts. Bergstrom feared an NSA takeover of cybersecurity because he knew that would mean that an agency whose primary responsibility was the collection of foreign intelligence would now be in charge of policing the domestic Internet.

Bergstrom was a Silicon Valley entrepreneur, not a Washington lifer, and so he had little interest in fighting a prolonged turf war. When he realized that he could not stop the NSA's power grab, he resigned in protest. He warned that if the NSA became the arbiter of cybersecurity, it would have access to all of the digital data of all Americans.

Bergstrom returned home to northern California and put his time in Washington behind him. But his warnings proved prophetic. During the Obama administration, the NSA did exactly as Bergstrom predicted, maneuvering to take control of cybersecurity. The Pentagon created a new U.S. Cyber Command that was nominally supposed to be separate from the NSA. But Gen. Keith Alexander, the director of the NSA, was given a second title as commander of U.S. Cyber Command, which was of course based at Fort Meade, the home of the NSA. In 2012, Alexander shed his uniform and donned a T-shirt and jeans to address a hacker convention in Las Vegas, where he tried to convince the nation's leading hackers to cooperate with the NSA's push into cybersecurity.

 

By 2013, as the number of reported cyberattacks on private companies and government agencies increased, the national debate about the need for greater cybersecurity intensified. But while the threat was real, the attacks led politicians and intelligence officials to begin to use increasingly apocalyptic rhetoric to describe the threat, hoping to justify a surge in government spending on cybersecurity as well as new legislation that would give them greater control over cybersecurity operations inside the United States. That would mean big new government contracts for outside contractors who have rebranded themselves as cybersecurity experts.

Cyber spending has surged even as the rest of the federal budget has faced severe cuts. In 2012, federal agencies spent $14.6 billion on cybersecurity, up from $13.3 billion the year before. And where there is an open spigot of federal money, lobbyists are not far behind. A report compiled in 2013 by the Center for Responsive Politics for CNNMoney found that a total of 1,968 lobbying reports filed with the government in 2012 mentioned the word
cybersecurity
or variations of the term multiple times, compared with 990 lobbying reports in 2011.

The government's scramble into cybersecurity also means a rush to build even more programs that could threaten the privacy of American citizens. One NSA cybersecurity program that has already raised concerns among privacy advocates comes complete with its own Orwellian-sounding name—Perfect Citizen—and a $91 million contract for Raytheon, a defense and intelligence company. The program reportedly is supposed to prevent cyberattacks on the nation's most critical infrastructure like power utility grids. But the NSA has refused to publicly explain exactly how Perfect Citizen will work, or how much it will intrude in private, domestic networks.

A Homeland Security program designed to protect government networks, called Einstein 3, has also raised concerns, since it has the capability to preempt attacks against government and contractor networks by searching out and disabling potential threats. But privacy advocates worry that it might become a kind of preemptive hunter-killer, analyzing data to determine whether it poses a threat, reading e-mails as well as detecting malware, and intercepting data before it reaches government or contractor networks.