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Protecting Whistleblowers since 1977

Part II: NSA Whistleblowers Asked Supreme Court to Review Warrantless Wiretapping

Jesselyn Radack, June 12, 2010

This post also appears on GAP Homeland Security Director Jesselyn Radack's Daily Kos blog.

Picture_3In my blog from yesterday on the Obama Administration taking a hard line against leaks to the press, I didn't get into the equally important companion article on how desperate, worried officials at the National Security Agency (NSA) asked late Supreme Court Justice William Rehnquist to review the warrantless wiretapping program. That is extraordinary.

Diane Roark, a staff member of the House Intelligence Committee, after being alerted to illegal warrantless wiretapping by NSA insiders, tried to reach out to Rehnquist.

The result: The FBI raided the homes of Ms. Roark and the three workers whose complaints launched an investigation into the NSA.What better way to subvert the system of freedom of expression than threatening to cut off alternative information at the source?

Let me make the connection in case the juxtaposition of the two New York Times articles yesterday onalleged "leaker" Thomas Drake and Supreme Court Justice Rehnquist didn't do it for you.

First of all, I have to clear up a few misconceptions about former senior NSA official Thomas Drake:

  1. He is NOT charged with "leaking." There is no such crime. And he is NOT charged with unauthorized disclosure of classified information. Nor is he charged under the SIGINT law.
  2. He is charged under the Espionage Act of 1917, which in its 93 year history, had been used only three times to prosecute "leakers." Mr. Drake has the dubious distinction of being the fourth. (Pentagon Papers whistleblower Daniel Ellsberg was the first.
  3. In early 2003, Roark annd three NSA employees met with investigators for the Department of Defense Inspector General to report mismanagement, waste and corruption at NSA. This prompted a 2-year inquiry, for which Drake was a major source. It resulted in a still-classified report in 2004 that is highly-critical of the agency's management.
  4. Neocons are the ones who suggested the wild idea of using the Espionage Act to prosecute sources, reporters, and newspapers--see Gabriel Schoenfeld's new book, Necessary Secrets. It took Obama (via Holder) to make it a reality.
  5. Mr. Drake is a whistleblower, not a spy. He revealed what he saw--and what the then-head of NSA, General Michael Hayden, later acknowledged--was billions of dollars wasted on a failed intrusive spying program.

The NSA employees in the above-mentioned stories are all whistleblowers and they deserve to be thanked, not have their homes raided, become targets of criminal investigations, and in the worse case scenario (that of Thomas Drake), get indicted. We knew the Bush administration was apoplectic at the revelation of its secret surveillance program on December 16, 2005. We didn't know until yesterday that they sicked 5 prosecutors and 25 FBI agents on the case--not to ferret out the criminal eavesdropping that violated numerous laws--but to go after the people who revealed the program.

Although every whistleblower's story is different, in many ways, this was classic. They complained internally through "proper channels" to no effect. They went to the congressional intelligence committees to no effect. Eventually, they did what whistleblowers desperate to get the truth out do: some reached out to the Supreme Court, others went to the press.


Jesselyn Radack is Homeland Security Director at the Government Accountability Project, the nation's leading whistleblower advocacy organization.