It Took Three to Out NSA Snooping on Us; Can We Really Afford to Lose Whistleblowers?

There’s a little-known backstory to Director of National Intelligence James Clapper’s famous “not wittingly” lie, in response to Sen. Ron Wyden’s March 2013 question, “Does the NSA collect any type of data at all on ‘millions or hundreds of millions of Americans’?” that demonstrates the importance of whistleblowers to our democratic control over the national security establishment.

The backstory is worth remembering, as Congress debates what to do about the dragnet Clapper tried to hide.

It stems from on-the-record statements Bill Binney (one of the highest-level whistleblowers to ever emerge from the NSA) made to former NSA whistleblower and historian James Bamford for a March 2012 Wired article. In addition to explaining that the collection points for President George W. Bush’s illegal wiretap program, Stellar Wind, were positioned to collect domestic data, Binney revealed that the US had access to “AT&T’s [and Verizon’s] vast trove of domestic and international billing records, detailed information about who called whom in the US and around the world.” Binney also explained how the NSA can suck up targeted content from around the world using something like a Google search in a program we have since learned is called XKeyscore.

Four months later, NSA Director Keith Alexander donned a hacker costume and spoke at the DefCon hacker’s conference in Las Vegas. DefCon Founder Jeff Moss asked General Alexander about Binney’s claims. “Does the NSA really keep a file on everyone?” “Absolutely no,” Alexander responded. “Anybody who would tell you that we’re keeping files or dossiers on the American people knows that’s not true.”

Less than a year later, Edward Snowden would provide proof that Alexander’s response – not Binney’s original claim – was the false statement.

Alexander’s DefCon comments led Senator Wyden to set out on a months-long effort to get Alexander or James Clapper to publicly correct this false claim. In an October 2012 letter, Wyden asked Alexander to answer the same question the Senator would eventually pose to Clapper in a public hearing. “Since you made your remarks in an unclassified forum,” Wyden said, specifically raising the general’s comments at DefCon, “we would appreciate an unclassified response to these questions, so that your remarks can be properly understood by Congress and the public and not interpreted in a misleading way.” But Alexander continued to obfuscate.

That’s what led Wyden to – with fair warning – try to force Clapper to correct the record at an open Intelligence Committee hearing. Clapper refused to correct Alexander’s lies; he chose, instead, to keep Americans in the dark and continue Alexander’s obfuscation.

But Clapper’s dishonest response was key to convincing Edward Snowden to leak a trove of documents to several journalists. “I think I was reading it in the paper the next day, talking to coworkers, saying, can you believe this shit?” Snowden told Bamford, explaining what led him to leak in a 2014 interview.

James Bamford, reporting on domestic surveillance to the Church Committee decades ago and then spending his life illuminating the NSA’s work; Bill Binney, alerting Congressional staffer Diane Roark and years later the press about the details of Stellar Wind; and now Edward Snowden, sharing documents with the press; only all three together finally forced the government to confess it was collecting data on every American.

It took years and multiple whistleblowers following each other before the government admitted it had been lying about the spying NSA does on Americans, while still hiding many other ways it collects Americans records. Only because of that series of whistleblowers was the Second Circuit Court able to review that spying program and declare it unlawful in early May. Even in spite of that court decision, some in Congress are fighting to retain or expand aspects of domestic spying, even as a majority of Congress supports requiring the government to make more tailored requests to communications providers.

The Senate will try for a second time in just over a week to pass the USA Freedom Act Sunday night, a reform that – though weak – would get the government out of the business of holding onto all Americans’ phone records.

Perhaps more troubling than the weak reform or bid to expand the dragnet, both Senate Intelligence chair Richard Burr and his Democratic counterpart, Dianne Feinstein, want to make sure the kind of whistleblowing that informed Americans about the dragnet ensnaring their communications won’t happen in the future. Both introduced bills in the past week that would provide for new penalties for whistleblowing about this law, in particular. Should the public assume, from this draconian effort to hide what this program does, that it will do more than the government has been claiming?

Whatever the case, at this moment of history, with Congress poised to take baby steps toward reining in an abusive dragnet, it’s worth remembering that it took years of effort to expose the dragnet before Snowden’s leak forced the government to admit it was spying on all Americans. And worth noting that the top overseers for the intelligence community would like to discourage any similar whistleblowing going forward.

Bill Binney and Marcy Wheeler will speak Tuesday night, June 2, at 7 pm at Chicago’s North Park University at an event celebrating the importance of whistleblowers. Go here for more details.