Pay Any Price (35 page)

Hayden suspected that it was Binney who had been feeding Roark information, and so he called Binney on the carpet, accusing him of insubordination. He then issued an agency-wide directive to make sure that no one else tried to go around him to Congress again. In an April 14, 2000, message to the NSA workforce, Hayden demanded loyalty, compliance, and silence. He made it clear that he considered Congress the enemy, and that giving congressional overseers any unfiltered information was an act of betrayal.

“Some individuals, in a session with our congressional overseers, took a position in direct opposition to one that we had corporately decided to follow,” Hayden wrote. “This misleads the Congress regarding our Agency's direction and resolve. The corporate decision was made after much data gathering, analysis, debate and thought. Actions contrary to our decisions will have a serious adverse effect on our efforts to transform NSA, and I cannot tolerate them. I have dealt with the people involved. . . . This was a disregard of decisions we had made together and, as such, could not be tolerated.”

“I do not expect sheepish acquiescence,” he added, “but I do expect that problems necessitating course corrections will be handled within these walls. I must insist on all of us having the personal discipline to adhere to our corporate decisions, including those with which we disagree.”

 

Binney's efforts to go around Hayden effectively ended his career at the NSA. His lobbying campaign for Thin Thread was now met with deaf ears throughout the entire agency, and the program stalled and then languished, despite Roark's continued pushing. Binney stayed on for another year, but by the fall of 2001, he and two others from the SARC—Ed Loomis and Kirk Wiebe—had had enough. They decided to retire together to start their own company. If the NSA didn't want Thin Thread, maybe they could sell it on the open market.

 

The 9/11 attacks happened just as Binney, Loomis, and Wiebe were on their way out. Like the rest of the intelligence community, the NSA had failed to prevent the attacks, and a sense of guilt and shame spread quickly among NSA personnel who knew the truth about the agency's failings. Prior to 9/11, terrorism had been a low priority within the NSA, which was still fixated on listening to the secret communications of foreign governments. Its dismissive pre-9/11 view that there was little intelligence to be gained by monitoring open communications on the Internet proved disastrous.

In the immediate aftermath of 9/11, the Bush administration scrambled for answers, and CIA Director George Tenet sent out a secret directive to each intelligence agency to move aggressively to bring any tool they might have available into the fight against al Qaeda. At the NSA, Trailblazer, the agency's long-term answer to the new digital age, was still little more than a proposal on a series of PowerPoint presentations.

But there was Thin Thread.

Three days after 9/11, Ed Loomis was working in the SARC when he got a call from Maureen Baginski, one of Hayden's top lieutenants. She was looking for Binney, but he was out for the morning, so she asked Loomis to come to an urgent meeting, Loomis recalled. When he arrived in a conference room at the agency's general counsel's office, Loomis was met by a whole team of NSA lawyers, including some of the attorneys who had previously rejected Thin Thread on the grounds that it would illegally collect too much information on Americans. He was also met by Ben Gunn, a senior NSA analyst who was familiar with Thin Thread.

The lawyers asked Loomis whether the SARC had any programs that could have helped to uncover the 9/11 plot. Loomis immediately reminded them about Grandmaster and Thin Thread, and how they had been rejected on legal grounds. The lawyers then turned to Gunn and asked him about Mainway, the part of the Thin Thread program that might have helped connect the dots among al Qaeda operatives. Baginski and the NSA lawyers never met with Loomis again to discuss Thin Thread or Mainway. But Loomis later realized that for Gunn, the meeting was something of a job interview; Gunn went on to become one of the technical managers of the NSA's domestic warrantless wiretapping and data-mining program.

In October, just as Randy Jacobson approached Bill Binney, Kirk Wiebe also began to see evidence that something unusual was going on around him. First he saw lines of large boxes stacked in the hallway outside the SARC, filled with Dell computer servers. They seemed destined for a mysterious locked room down the hall, which from past experience Wiebe knew had work space for as many as a hundred people. Next, Wiebe accidentally walked into a meeting in the SARC's conference room being run by Gunn, and was quickly told that the meeting was secret and that he had to get out. That was strange for Wiebe, because he thought he knew everything that was going on inside the SARC.

Finally, Binney told Wiebe what Jacobson had told him, and Wiebe realized that he had walked in on one of the first meetings of the technical team in charge of setting up the NSA's warrantless wiretapping program. Wiebe also realized that the Dell servers stacked in the hallway were going to connect the Mainway software to the AT&T phone lines streaming into the locked office space just down the corridor. Mainway was to become the heart of the NSA's domestic spying program.

 

When Bill Binney had been frustrated by the NSA's rejection of Thin Thread before 9/11, he had turned to Diane Roark, and it had cost him his career. Now, after 9/11, Binney realized that the NSA was taking the key component of Thin Thread—Mainway—and perverting its use in an unconstitutional program. And so he turned to Roark once again. Not long after Randy Jacobson first told him about the NSA's decision to start spying on Americans, Binney called Roark and told her that he needed to meet with her, without going into any details on the phone. After work, he drove to her house in Hyattsville, Maryland, a few miles from NSA headquarters. He then told her what he had learned about the secret NSA warrantless wiretapping program.

After listening to Binney, Roark believed strongly that the operation he had just described violated the Constitution. She also knew that it went against the core principles of the NSA. Ever since the Church Committee investigations of intelligence abuses and the reforms that followed in the 1970s, the NSA had been explicitly barred from spying on Americans. The idea that the NSA only looked outward, not inward on Americans, had become deeply ingrained in the agency's culture. But now, Binney was telling Roark that the agency was secretly violating its most fundamental directive.

At first, Roark was sure that this had to be some kind of rogue operation, completely unauthorized by either Congress or the Bush administration. “What he told me shocked me,” recalled Roark. “I thought this was a rogue operation, I couldn't believe this was approved, because it was clearly illegal and unconstitutional. The big thing was that the protections had been removed. NSA had been rigorous on protections before that.”

Roark knew she had to do something about it. What she didn't realize was that her efforts would turn her into a pariah in official Washington.

 

Diane Roark had no experience as a whistleblower. During her career conducting congressional oversight, people had always come to her to report problems, rather than the other way around. And so when Binney told her about the NSA's warrantless wiretapping operation, she did what came naturally—she reported it to the House Intelligence Committee. She was certain no one on the committee knew about it.

Roark wrote a memo describing what she knew about the wiretapping program and submitted it to Tim Sample, the Republican staff director of the committee, and his Democratic counterpart, Mike Sheehy. Sample reported directly to the chairman of the committee, Porter Goss, a Florida Republican congressman and former CIA case officer who later became CIA director. Sheehy worked for Nancy Pelosi, a California Democratic congresswoman who later became Speaker of the House but who was then the ranking Democrat on the intelligence committee. Roark wrote that she wanted to warn the committee's leaders from both parties that an illegal operation was under way at the NSA.

Roark was confident that her memo would be met by outrage by the congressional leadership; instead, it was met by stony silence. After reading her memo, Sheehy meekly replied that, while he did not know anything about it, this NSA spying operation must explain why Goss and Pelosi had recently been called to a secret meeting at Vice President Cheney's office. He then dropped the subject and did not talk to Roark any further about it.

Sample's response was even more chilling. He had obviously talked to Goss about Roark's memo. Sample admonished her to drop the matter, and to stop talking about the NSA program. She was not to tell anyone else what she knew, Sample demanded, not even other staffers on the House committee. Roark now realized that she and Binney had not stumbled upon a rogue operation but rather on an unconstitutional domestic spying program approved at the highest levels of the government and sanctioned by at least some congressional leaders. That knowledge only made her more determined to stop it.

Despite the warning from Sample not to talk with anyone else on the committee about the program, she privately warned Chris Barton, the committee's new general counsel, that “there was an NSA program of questionable legality and that it was going to blow up in their faces.” In early 2002, Roark also quietly arranged a meeting between Binney, Loomis, and Wiebe and Rep. Richard Burr, a North Carolina Republican on the House Intelligence Committee. Binney told Burr everything they had learned about the NSA wiretapping program, but Burr hardly said a word in response. Burr never followed up on the matter with Roark, and there is no evidence he ever took any action to investigate the NSA program. He was later elected to the U.S. Senate.

After getting nowhere with Burr and being shut down by Sample and Sheehy, Roark finally began to realize that if she was ever going to stop the illegal operation, she was going to have to go outside of the House committee, her institutional home. That meant that she was going to have to start taking risks. As she reached out to her network of contacts throughout the government, she gradually realized, to her horror, that there was a cover-up under way to protect the NSA's illegal operation, and it involved far more people than she could ever have imagined—including many she knew and trusted.

Roark first met with a former senior NSA executive who had been trying to help her improve her relations with Hayden and the rest of the NSA's top management. When Roark told the former official about the warrantless wiretapping program, he seemed shocked and agreed to talk with NSA officials about it. But Roark never heard from him again.

Roark then tried to set up a meeting with U.S. District Court Judge Colleen Kollar-Kotelly, who was also the chief judge of the so-called FISA court, the secret Washington-based federal court that was supposed to authorize electronic surveillance in national security cases inside the United States. Since the purpose of the Bush administration's warrantless wiretapping program was to avoid the legal process established by the Foreign Intelligence Surveillance Act of 1978—and to skirt the secret court established by that law—Roark assumed that Kollar-Kotelly would be outraged when she learned about the secret program. So Roark called Kollar-Kotelly's Washington office and left a message with her secretary, identifying herself and asking for a meeting to discuss “an illegal NSA program.” The judge's secretary called Roark back to tell her that the judge could not meet her or discuss the matter with her. Chillingly, the secretary added that the judge had called the Justice Department to inform officials there that Roark was asking questions, and that Roark should expect a call from a Justice Department lawyer. Roark was horrified and believed that Judge Kollar-Kotelly had betrayed her. Later, a Justice Department lawyer did call Roark, but, suspecting a trap, she refused to talk to him. What Roark did not realize was that Kollar-Kotelly had been told about the program by the White House, and she had agreed to keep the fact that the NSA was going around her own court a secret, even from the other judges on the court. When the NSA program later became public, one of the other FISA court judges, James Robertson, resigned in protest.

Next, Roark approached Charles Allen, a legendary figure in the CIA and one of the few top CIA officials who had displayed genuine interest in the NSA and its problems over the years. Over lunch, Roark told Allen about the warrantless wiretapping program, and said that she believed the operation was illegal. Allen said nothing, and by the end of the lunch, Roark realized that Allen already knew about the program and had not objected to it.

In perhaps her most naive move, Roark next called David Addington, an old acquaintance from their days working together on the House Intelligence Committee. Addington had long since left the House committee and become one of Vice President Dick Cheney's most powerful aides. From his post at Cheney's right hand, Addington had become one of the architects of the Bush administration's policies in the war on terror and was a fierce advocate for the NSA domestic spying program.

Roark could not reach Addington personally, so she left a voicemail message for him at the White House, telling him that it was very important that they meet, that she had been handling the NSA account for the House committee, and that she was very troubled by something that had happened post-9/11. Addington never called back.

 

Frustrated by her inability to stop the NSA program and depressed by discovering that so many people she knew were protecting the secret, Roark decided to retire from the House committee in April 2002. But she wanted to make one more push to stop the NSA program. On March 20, 2002, just before she left the committee, she arranged to have breakfast with committee chairman Porter Goss. After small talk, Roark brought up the warrantless wiretapping program. She told Goss that she knew that he must have been briefed about the program, but she said she wanted him to know that the operation was of “questionable legality” and was unsustainable. “This cannot go on forever,” she told Goss. “It's going to leak and the committee is going to look bad” for not trying to stop it, she warned him.