Pay Any Price (37 page)

What she meant was that the NSA had taken the protections off Mainway and turned it into something very different. Drake realized this after he began to hear from several NSA officials about the agency's warrantless wiretapping and domestic data-mining program, which now had its own code name—Stellar Wind. One of the NSA officials who told him about the program was a supervisor on Stellar Wind; he was troubled by it and not certain it was legal. Other NSA personnel who had fragmentary knowledge of Stellar Wind also approached Drake, figuring that he was close to top management and so might know more about what was going on.

Drake approached Ben Gunn, the technical manager on Stellar Wind, and Drake came away from their conversation convinced that even Gunn privately had qualms about the program and the agency's new direction. (Gunn did not respond to a request for comment.) Finally, Drake confronted Baginski about it. In an awkward conversation in her NSA office, Baginski would say only that the decision to launch the warrantless wiretapping program had already been made and was out of her hands. But Drake persisted. “I said, do you realize what you are saying?” recalled Drake. “I said, they are bypassing FISA. And she just looked away.” (Baginski declined to comment.)

Drake said that Baginski told him that if he had a problem with what was going on, he should talk to the NSA's lawyers. So Drake arranged a meeting with Vito Potenza, then the NSA's acting general counsel. Potenza told Drake that “the program,” as he called it, was perfectly legal and had been approved by the White House. When Drake persisted, Potenza made it clear to Drake that the matter was really none of his business.

Drake was still frustrated, so when he was asked to talk about the NSA's performance by two early congressional probes into 9/11—one by a House intelligence subcommittee and another by a joint House-Senate inquiry formed specifically to investigate 9/11, a precursor to the official 9/11 Commission—he seized the opportunity. He met privately with staffers for the House subcommittee and from the joint inquiry, and told them about Stellar Wind. Drake was disappointed when they failed to follow up and never mentioned it in any report.

 

After Roark and Drake tried and failed to stop the NSA's warrantless wiretapping program, the Bush administration still had to scramble on other fronts to keep the existence of the NSA program secret. Senior Justice Department and FBI officials were the next to rebel against the NSA's domestic spying operation, nearly triggering a constitutional crisis that threatened not only to force the entire domestic surveillance program out into the open but also to topple the Bush administration.

In 2003, John Yoo, the Justice Department lawyer who had originally rubber-stamped many of the Bush administration's counterterrorism policies, from enhanced interrogation techniques to warrantless wiretapping, left the government. After he resigned, Justice Department lawyers reviewing his work were appalled by what he had done for the White House. They concluded that they could no longer provide the White House with assurances that all aspects of the NSA's domestic surveillance operations were legal, triggering a dramatic series of events that climaxed in a showdown in Attorney General John Ashcroft's hospital room in March 2004. The hospital room confrontation is now considered the dramatic highlight of the most serious constitutional crisis in the post-9/11 era.

The showdown developed because a hospitalized Ashcroft had temporarily turned over his duties to Deputy Attorney General James Comey, just as it was time for the attorney general to give his approval for the reauthorization of the NSA's secret warrantless wiretapping program. But Comey had been persuaded by Justice Department lawyers that not all of the elements of the program were legal, and so he refused to give his approval. Angered by his refusal, White House chief of staff Andrew Card and White House counsel Alberto Gonzales went to see Ashcroft in his hospital room to try to get him to sign. Tipped off, Comey beat them there, and Ashcroft sided with him and told the White House officials to deal with Comey. Card and Gonzales left with no agreement, triggering an escalating crisis between the White House and Justice Department.

During the course of an intense legal showdown over the next few days, Comey, FBI Director Robert Mueller, and other senior Justice Department officials threatened to resign after the White House insisted on going ahead with the surveillance operation without the legal imprimatur of the Justice Department. Finally, President Bush personally resolved the crisis by agreeing to modify some aspects of the surveillance operation to satisfy Comey and Mueller.

A 2009 NSA inspector general's report later leaked by Edward Snowden revealed for the first time that Comey and the other Justice Department and FBI officials were concerned about the legality of one particular component of the domestic surveillance program—a data-mining operation to collect and analyze Internet metadata from American citizens. The report said it was one of the four components of the NSA domestic surveillance program that Bush had first approved in October 2001. In addition to the main warrantless wiretapping of phone calls, the NSA domestic surveillance program included the collection of the content of e-mails and the collection of the calling log data of phone calls and the metadata of e-mails, which included the e-mail addresses and IP addresses of both senders and recipients of the e-mails.

Comey was not opposed to the main warrantless wiretapping program but, based on the legal advice of his lieutenants at the Justice Department, refused to reauthorize the Internet metadata collection operation. To satisfy Comey, Bush rescinded his authorization for the bulk Internet data collection on March 19, 2004. Then the White House and Justice Department began to look for new legal justifications to use to resume the Internet data collection. They finally decided that they could authorize it by claiming that it was a form of “Pen Register/Trap and Trace,” a long-established process used by the FBI to keep calling and e-mail logs in criminal cases. This new legal theory was a big stretch—the Pen Register/Trap and Trace procedure was used to monitor specific individuals under criminal investigation, and had never been used to justify the bulk collection of the records of millions of American citizens.

But the compliant chief judge of the FISA court, Colleen Kollar-Kotelly—the same judge who had betrayed Diane Roark to the Justice Department—secretly went along with the plan. She issued an order on July 15, 2004, authorizing the resumption of the Internet data collection program based on the new theory. She issued her order in secret, without telling any of the other judges on the FISA court, who still were not aware of the existence of the NSA domestic spying program.

And so, despite the drama surrounding the confrontation in Ashcroft's hospital room, the crisis between the White House and the Justice Department subsided without bursting into public view. Comey and the other Justice and FBI officials backed down from their threats to resign, and the NSA domestic surveillance operation continued in secret, largely intact and with only a brief interruption.

The NSA program's existence was finally revealed by the
New York Times
in December 2005, only after the Bush administration mounted an intense campaign to convince the
Times
not to publish the story. The administration's point man in dealing with the
Times
's editors was Michael Hayden, the same man who had pressured Diane Roark to remain silent. The paper agreed to hold the story for more than a year.

When it was finally published, the story set off a firestorm of protest on both the left and right. Civil liberties advocates accused the Bush administration of violating the Constitution with a high-tech invasion of the privacy rights of American citizens, while conservatives attacked the
New York Times
for publishing the story and damaging national security in the midst of the war on terror.

Within days, President Bush ordered a leak investigation to find out who had talked to the
New York Times.
The Justice Department convened a grand jury, and the FBI assigned a task force of agents to hunt down the paper's sources. It did not take long for the Justice Department and the FBI to focus on Diane Roark as a prime suspect.

 

Roark was living quietly in Oregon when she got a call in August 2006 from the general counsel of the House of Representatives. The lawyer told her that the FBI was looking for her, and that the agents wanted to know whether she would be willing to talk to them as part of their NSA investigation. Roark replied that it was about time that someone investigated the program—but the lawyer quickly explained that the FBI was investigating the leak to the
New York Times,
not the program itself. Roark said she would be willing to talk with the FBI, but she was taken aback when the lawyer told her that the House of Representatives would not provide her with a lawyer.

Roark finally met with a prosecutor and two FBI agents in February 2007. With a shock, she realized that she was a target of the investigation. Roark denied that she had been a source for the story in the
Times
—a story that I wrote along with Eric Lichtblau—and also said she had not been a source for my book
State of War,
which also included a chapter revealing the existence of the NSA program. The prosecutor then asked her whether she knew who had talked to me or Lichtblau about the NSA, and she said she had no idea.

 

An incessant pounding woke Diane Roark from a sound sleep. She stumbled out of bed, went down to the front door of her Oregon home, peered out a window, and asked who was there. It was the FBI. It was 6
A.M.
on July 26, 2007, and a phalanx of FBI agents, pouring out of a convoy of cars that filled her driveway, had come to raid her house.

As she opened the door, at least a dozen agents filed in. The lead agent quickly asked if she had any guns, and she said no. He then showed her a search warrant and stood next to her while she called her lawyer in Washington, who told her to ask the FBI agent to let her see a copy of an affidavit in support of the search warrant. The lead agent told her it was under seal and that she couldn't see it. With that, the FBI began to pick apart Roark's house.

While other agents started to carry out her computer and other electronic equipment, one female agent accompanied Roark back upstairs, watched as she got dressed, and then followed her outside when she decided to get out of the house and work in her garden while the FBI rifled through her belongings. The FBI search took five hours—conducted mostly by women wearing hair nets and gloves—and even extended to the apartment of a tenant who was renting rooms in Roark's house. They took fifteen boxes filled with Roark's belongings, made her sign for it, and then left.

On that same day in Maryland, FBI agents raided the homes of Bill Binney, Kirk Wiebe, and Ed Loomis. A few months later, in November 2007, the FBI raided the house of a fifth member of what the government was convinced was a conspiracy of leakers—Thomas Drake, the only one of the group who was still working at the NSA.

A previously sealed FBI affidavit filed in support of the raid on Drake's house shows that he and the others were all targeted because the government believed that they had conspired together to reveal all that they knew about the NSA domestic surveillance program to the
New York Times.
The affidavit is from an FBI agent ironically named Jason Lawless, who stated that he was assigned to a “task force that is conducting an investigation into the unauthorized disclosure, ‘leak,' of classified information to two New York Times (NYT) reporters, James Risen and Eric Lichtblau, who work in the NYT's Washington, D.C. Bureau, concerning alleged activities of the National Security Agency (NSA), including the Terrorist Surveillance Program (TSP).”

All five told the FBI that they had not talked to the
Times
about the NSA program, and all said that they did not know who did. One reason they had been targeted as a group was because they had jointly signed a letter to the Defense Department's inspector general calling for an investigation of the waste and abuse in the NSA's Trailblazer contract.

After Drake denied talking to the
New York Times,
he told the FBI that he had only spoken with a reporter from the
Baltimore Sun,
who had written stories about the NSA's contracting problems with Trailblazer, which had been published after the
New York Times
stories about domestic spying. Embarrassed by the fact that they had devoted enormous resources to investigating the wrong people, the Justice Department was forced to grasp at straws. Prosecutors decided to charge Drake in connection with leaking to the
Baltimore Sun,
based on his own statements. Eventually, that case collapsed when the government failed to prove that he had leaked any classified information at all. (In fact, Drake was not even the original source for the
Sun
's stories on Trailblazer. Drake did not talk to the
Sun
reporter until after she had already written her first stories on the subject.)

But while the Drake case collapsed, and the other four were never charged, the investigation had a devastating impact on all of them. Just as she was being targeted by the Justice Department, Diane Roark was diagnosed with breast cancer. She had to begin treatments as prosecutors threatened her with jail for perjury for lying about not being a source for the
Times
's NSA story. When word that she was under investigation began to spread, Roark was ostracized by her former friends and colleagues on the House Intelligence Committee.

Drake's wife, who also worked at the NSA, was furious at her husband for putting their family at risk. Pressured by the NSA to cooperate or else risk losing her job, she talked to the FBI about her husband, despite the marital privilege that gives spouses the right not to testify against each other. They separated for a year but then decided to stay together for the sake of their youngest son.