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As Obama Holds Meetings, NSA Whistleblowers Warn Reforms to Preserve the Surveillance State

Thomas Drake at the “Stop Watching Us” rally against mass surveillance by NSA in October

The White House is holding a number of meetings on possible National Security Agency reforms. President Barack Obama reportedly met with staffers for intelligence officials on January 8 in a meeting that was classified “top secret.”

A top lawyer for the administration, Kathy Ruemmler, is scheduled to hear from “civil liberties groups” on January 9. Meanwhile, Obama will be meeting with lawmakers, including Senators Mark Udall and Ron Wyden and Representative Jim Sensenbrenner, who have promoted legislation to reform the NSA ever since disclosures from NSA whistleblower Edward Snowden were first published.

The meetings come after the president’s own handpicked review group offered 46 recommendations on what could be done to, as Reuters might describe it, “restore Americans’ confidence in US intelligence services after damaging disclosures from former spy contractor Edward Snowden about the sweep of surveillance practices.”

However, there are four National Security Agency whistleblowers—William Binney, Thomas Drake, Edward Loomis, and Kirk Wiebe—who are concerned that the reform process is simply a kind of shell game. It is President Barack Obama’s process for preserving, protecting and defending the surveillance state.

The meetings, which participants are sworn to secrecy, are about bringing the experts together and come to an agreement on what is going to happen next so that President Obama can control the next phase of the reform process.

Altogether, Binney, Drake, Loomis and Wiebe have 144 years of experience working with the NSA. Most of those years involved working at the senior levels of the agency. They fought to have the agency adopt a program, ThinThread, that would have made it possible to collect information on targets without violating the privacy of millions of Americans.

It would have involved technology to do the kind of “targeted information acquisition” the NSA review group recommends in their review report. But, the NSA committed itself to bulk data collection, and, when these four individuals challenged the leadership of the agency, they became targets of a government investigation. Their homes were raided. Drake was charged with violating the Espionage Act by retaining classified information. (Full background on their story can be found in journalist Timothy Shorrock’s feature story published in The Nation in 2013 on “Obama’s Crackdown on Whistleblowers.”)

The four whistleblowers decided to put forward their own memo to the president on what they think should happen next.

“We put our heads together and said, well, what would we recommend? Because we recognize that a number of those recommendations are an attempt to preserve the surveillance state by other means.” He noted the language of the review report is carefully parsed and questions had to be asked about what it all really meant.

The whistleblowers recognized the “gravity of the president handpicking his own review group,” according to Drake.

Significantly, the review report recommended technology be developed that could be an alternative to vacuuming data and collecting all Americans’ phone records, which was already developed 15 years ago. It was called ThinThread and the NSA rejected this proposed program (yet nowhere in the review report does it seem apparent that the review group is aware of this agency history).

Part of the drive was also motivated by the fact that none of them were asked by any member of the group to come before them. They had no conversations with any of the review group members, which include former CIA deputy director Michael Morell, former counterterrorism adviser, Richard Clarke, former Obama administration official Cass Sunstein, privacy law expert Peter Swire and University of Chicago law professor, Geoffrey Stone.

No member of the House of Representatives or Senate has extended an invitation to either of them to testify on Capitol Hill. The White House has had none of their top lawyers meet with either of them to hear them share their expertise and views.

One of the glaring differences between the NSA review group and the NSA whistleblower group is that the whistleblowers would not continue bulk collection of Americans’ records in any form. The review group called for bulk data collection to be terminated but proposed that private entities or a third-party provider hold on to this data and make it available to the NSA, but Binney believes they shouldn’t even have the data to begin with. “Nobody should.”

“For the longest time,” Drake recalled, NSA “wanted these companies to retain the data for much longer than they were.” In some cases, they were not retaining the data. There were costs involved, liability and protection they demanded NSA provide. The September 11th attacks and everything changed. Secret agreements were entered. So, there is some irony to the fact that Obama could try to restore confidence in intelligence agencies by having NSA go to the system they sought to establish pre-9/11 because it was problematic then and it is still problematic now.

Various “dangers” or “national security risks” created by current NSA programs and operations are of concern to the whistleblowers: hyping the threat of terrorism, lying about the effectiveness of the program in combatting the threat, employing cyber warfare to escalate the threat of cyber attacks and thereby justify gaining more “cyber security” power, weakening internet security, including encryption, pushing for more and more “needlessly expensive systems,” “double crossing” telecommunications or internet service provider “allies” by attacking their systems even when they cooperated with the agency after 9/11.

The agency has also engaged in data mining for “non-national security purposes” and the FBI and Drug Enforcement Agency (DEA) have been on the “take.” They have benefited for years.

The whistleblowers urge repeal of the Authorization for Use of Military Force that puts America on a permanent war footing. Drake said this recommendation was made because it is way past time and has been used as a “covering authorization” that goes “far beyond the plain language.”

This would address some of the militarization of cyberspace of which NSA is responsible. “People sometimes forget the NSA is headed by a four-star Army General and Cyber Command is headed by a four-star general,” Drake added. They are the same person: Gen. Keith Alexander. They are a military organization first and foremost. “The militarization of the cyberspace is crucial to understanding what is happening here.”

Disclosures from Snowden, as well as Foreign Intelligence Surveillance Court opinions, have shown that the NSA collects a quite a bit of what the agency refers to as “incidental” data from communications of Americans. Drake acknowledged they have to say it is “incidental” because they cannot “deny they are collecting it.” They claim they do not have “willful intent” in terms of the law. “It just happens to be there,” he continued,” and there is “no big deal.”

The agency is supposed to minimize this kind of collection. Statutes and regulations instruct them to do something about this “incidental” collection, but they do not. The solution, in addition to collecting less data, is to simply encrypt anything suspected of being “incidental.” If it might violate the Fourth Amendment to collect it, encrypt it.

“Investigate and reveal publicly what non-communications data is collected on Americans under national security aegis by NSA and other federal agencies, under what circumstances and stipulating rules of access and use,” the whistleblowers recommend.

“We get hung up on signals,” Drake suggested. “There’s a whole lot of other transactional information that is not in the communications space.” For example, data from credit card transactions, financial information, health records, etc.

Essentially, the whistleblowers would recommend a kind of audit. “Zero-base the NSA, CIA and FBI budgets and cut them substantially, eliminating unconstitutional or illegal programs.”

“Require software that selects individual communications of national security interest, eliminate bulk collection of metadata or content, and render unlawful dependence on communications companies for normal collection and decryption access, seeking their cooperation only in extraordinary, limited circumstances,” the recommendation further suggests.

Drake recounted how this was started when he was in the agency but they never completed this kind of review of funded programs because the agency got “cold feet.” They did not want to account for everything because accounting would mean showing in a record how money is spent. Part of the secrecy surrounding NSA is intended to enable funding programs that the agency does not have to prove are useful in any way, shape or form.

The whistleblowers advise the president to institute “severe penalties for individual government officials who violate the privacy rights of US residents, including fines, jail sentences and a complete loss of pension rights or partial loss.” Basically, do to them what the Obama administration has been willing to do to alleged leakers.

Institute “effective whistleblower protections” for employees, contractors and subcontractors of national security agencies. Ban the bulk collection of data from “foreign private individuals and entities who are not closely associated with a potential national security threat to the US.” And outlaw partnering with foreign intelligence agencies to circumvent US laws governing surveillance.

Drake pointed out there is much that is still to be disclosed. Sen. Bernie Sanders hinted at one set of revelations that has yet to be disclosed: spying on members of Congress.

Journalists releasing stories have also yet to release any stories on how the administration of President George W. Bush monitored and spied upon Iraq War critics, which Drake said he knows for certain happened. There also will be more to come out on the collection of data that is not “signals-related.”

It also remains unclear who or which agencies have access to NSA databases. There is some public understanding that the DEA has used “parallel construction” to build cases by illegally collecting evidence and then going back and getting similar evidence properly to prosecute a case. Yet the whistleblowers are very concerned about this ongoing practice and how little is known about it.

The president will not directly challenge the NSA. He owns some of what has been exposed because he voted as a US senator for retroactive immunity for telecommunications companies. He voted for a FISA Amendments Act in 2008 that legalized dragnet warrantless surveillance.

By putting this memo with concerns and recommendations forward, the whistleblowers hope the conversation will not become too focused on rebuilding trust in the NSA without actually removing and curtailing any of the NSA’s claimed surveillance powers.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."