National Security
4:45 am
Tue July 22, 2014

Before Snowden: The Whistleblowers Who Tried To Lift The Veil

Originally published on Tue July 22, 2014 1:13 pm

Bill Binney worked at the National Security Agency nearly three decades as one of its leading crypto-mathematicians. He then became one of its leading whistleblowers.

Now 70 and on crutches, both legs lost to diabetes, Binney recalls the July morning seven years ago when a dozen gun-wielding FBI agents burst through the front door of his home, at the end of a cul-de-sac a 10-minute drive from NSA headquarters in Fort Meade, Md.

"I first knew that they were in there when they were pointing a gun at me as I was coming out of the shower," Binney says.

When I ask him why the agents were there, he replies: "Well, it was to keep us quiet."

The NSA is overseen by Congress, the courts and other government departments. It's also supposed to be watched from the inside by its own workers.

But over the past dozen years, whistleblowers like Binney have had a rough track record.

Those who tried unsuccessfully to work within the system say Edward Snowden — the former National Security Agency contractor who shared top-secret documents with reporters — learned from their bitter experience.

For Binney, the decision to quit the NSA and become a whistleblower began a few weeks after the terrorist attacks of Sept. 11, 2001, when he says he discovered the spy agency had begun using software he'd created to scoop up information on Americans — all without a court order.

"I had to get out of there, because they were using the program I built to do domestic spying, and I didn't want any part of it, I didn't want to be associated with it," he says. "I look at it as basically treason. They were subverting the Constitution."

Binney says he and two other NSA colleagues who also quit tried sounding the alarm with congressional committees. But because they did not have documents to prove their charges, nobody believed them. Snowden, he says, did not repeat that mistake.

"He recognized right away, it was very clear to me, that if he wanted anybody to believe him, he'd have to take a lot of documentation with him — which is what he did," Binney says.

'Your Life Is Never The Same'

And that's why, he says, Snowden has had such an impact. Others have tried to work within the system. For example, computer expert Thomas Drake thought blowing the whistle on what he considered unconstitutional NSA programs would shake things up there. Instead, what got shaken up was his own life.

"The only person who was investigated, prosecuted, charged in secret, then was indicted, then ended up facing trial and 35 years in prison was myself," he says.

Drake had taken his case both to the NSA and to Congress. After concluding his complaints were going nowhere, he showed unclassified information from the NSA to a newspaper reporter. For that he was charged with violating the Espionage Act. The FBI raided his home, too — four months after Binney's.

"Your life's never the same. All your colleagues and people you used to work with all disappear. You're persona non grata, you're radioactive," he says.

"On top of that, you're spending tens of thousands of dollars defending yourself with a private attorney. So now you're practically bankrupt, you're declared indigent before the court, your family's questioning who you are and what you're up to and why you brought all this on us."

The case against Drake fell apart days before he was to go to trial in 2011; he got off with a misdemeanor plea bargain and these days works at an Apple store. Like Binney, Drake thinks what happened to him was a cautionary tale for Snowden.

"Snowden carefully saw what happened to me and others, and it was clear ... there was no other recourse," he says.

Not everyone agrees.

"Snowden could've come to me," says George Ellard, the NSA's inspector general. "In fact, he would have been given some protections."

Earlier this year, Ellard spoke at Georgetown University's Law School. He said he could not say what would have been the proper way for Snowden to raise his concerns, but the way it happened was very, very bad. Snowden says he did try to blow the whistle internally at the NSA, but Ellard said he'd never heard from him.

"Perhaps it's the case that we could've shown, we could've explained to Mr. Snowden his misperceptions, his lack of understanding of what we do," Ellard said.

New Protections For Whistleblowers

Since Snowden made off with the NSA's secrets, the rules for whistleblowers have changed. President Obama has issued a directive aimed at giving greater protections to whistleblowers working for intelligence agencies, since they did not have the protections covering other federal employees.

"Supervisors and managers need to understand that whistleblowing is a lawful mission in the national security interest," says Dan Meyer, a former federal whistleblower.

He now works for the inspector general at the Office of the Director of National Intelligence. What's new is the job Meyer holds: executive director for intelligence community whistleblowing and source protection. He says he looks out for potential whistleblowers as much as the spy agencies that employ them.

"We need to get to that employee in the last cubicle, in the furthest-most office whose hoodie is about to go up, and let them know that if they need to get this information to somebody who can address the wrongdoing, we have a way of proceeding with that process," Meyer says.

Under the president's new directive, which Congress just codified into law, someone like Thomas Drake who tried blowing the whistle while still working at the NSA would have a chance to appeal to inspectors general at other intelligence agencies. Such a hearing, though, is by no means guaranteed. And the protections don't extend to everyone: Former employees such as Bill Binney would not be covered, nor would outside contractors like Edward Snowden.

"At the moment, they are absolutely hung out to dry," says Danielle Brian, whistleblower advocate and executive director of the Project on Government Oversight.

"And what's extraordinary is the intelligence community has been increasingly privatizing its activities," Brian says. "You're having more and more people who are private contractors with the highest level of clearances who find out about some of the most potentially troubling misconduct, but they are without any serious protections."

She's pleased that Meyer has been put in charge of implementing the new whistleblower guidelines. But she says there are other problems with the new rules — they still don't get whistleblowers' complaints out of the intelligence community and into the courts, where she says whistleblowers want them to be.

The only time they do get into the courts is when they're charged with a crime, including under the Espionage Act. Jesselyn Radack of the Government Accountability Project is a lawyer for both Edward Snowden and Thomas Drake.

"The Whistleblower Protection Enhancement Act says you can't retaliate against someone for blowing the whistle but provides no remedy when you are retaliated against," Radack says.

That retaliation can take the form of being stripped of your security clearance, making it impossible to do your job. When I asked whistleblower Bill Binney his advice for anyone thinking of doing what he did, he had a ready reply:

"The first thing is get a lawyer, get legal advice," he said.

The other thing, Binney added, is never compromise your character and integrity.

Copyright 2014 NPR. To see more, visit http://www.npr.org/.

Transcript

RENEE MONTAGNE, HOST:

Today and tomorrow, we're going to look at whether it's possible to have oversight on a spy agency. There are supposed to be checks and balances. The National Security Agency, for example, is overseen by Congress, the courts and other departments of government.

STEVE INSKEEP, HOST:

So it's said. It is also supposed to watched from the inside by its own workers - whistleblowers. Over the last dozen years, though, whistleblowers at the NSA have a rough track record.

MONTAGNE: Two men who tried unsuccessfully to work within the system believe former NSA contractor Edward Snowden learned from their experience. Here is NPR's David Welna with a look at fixes designed to make it easier to be a whistleblower today.

DAVID WELNA, BYLINE: At the end of a cul-de-sac, a 10 minute drive from the NSA's headquarters in Fort Mead, Maryland, Bill Binney greets me on the front porch of his house.

WELNA: How are you doing?

BILL BINNEY: OK.

WELNA: Seventy-years-old and on crutches - both legs lost to diabetes - Binney worked at the NSA for nearly three decades as one of its leading crypto-mathematicians. He then became one of its leading whistleblowers, and he seems eager to talk about it.

BINNEY: Did you want to go somewhere for coffee or something? We can chat, nice quiet place?

WELNA: But before we go there, Binney recalls the July morning seven years ago when a dozen gun wielding FBI agents burst through his front door.

BINNEY: I first knew they were in there when they were pointing a gun at me and - as I was coming out of the shower. That's the first I found out that they were in my house.

WELNA: And what was the reason for coming here?

BINNEY: Well, it was to keep us quiet.

WELNA: Later, at a nearby restaurant, Binney talks about what drove him to quit the NSA. It was just a few weeks after the 9/11 attacks - a time when Binney says he discovered the spy agency had begun using software he'd created to scoop up information on Americans, all without a court order.

BINNEY: I had to get it out of there because they were using the program I built to do domestic spying. And I didn't want any part of it. I didn't want to be associated with it. I look at it as basically treason. They were subverting the Constitution.

WELNA: Binney says he and two other NSA colleagues who also quit tried running the alarm with congressional committees. But because they did not have documents to prove their charges, nobody believed them. Edward Snowden, he says, did not repeat that mistake.

BINNEY: He recognized right away, it was very clear to me, that if he wanted anybody to believe him, he'd have to take a lot of documentation with him - which is what he did.

WELNA: And that's why, Binney says, Snowden has had such an impact. Others have tried to work within the system. Computer expert Thomas Drake thought blowing the whistle on what he considered unconstitutional NSA programs would shake things up there. What got shaken up was his own life.

THOMAS DRAKE: The only person who was investigated, prosecuted, charged in secret, then was indicted, then ended up facing trial and 35 years in prison was myself.

WELNA: Drake had taken his case both to the NSA and Congress. After concluding his complaints were going nowhere, he showed unclassified information from the NSA to a newspaper reporter. For that, he was charged with violating the Espionage Act. The FBI raided his home, too, four months after Binney's.

DRAKE: Your life's never the same. All your colleagues and people you used to work with all disappear. You're persona non grata. You're radioactive. On top of that, you know, you're spending tens of thousands of dollars defending yourself with a private attorney. So now you're practically bankrupt. You're declared indigent before the court. Your family is questioning who you are and what you're up to and why you brought all this on us.

WELNA: The case against Drake fell apart days before he was to go to trial in 2011. He got off with a misdemeanor plea bargain and, these days, works at an Apple Store. Like Binney, Drake thinks what happened to him was, for Edward Snowden, a cautionary tale.

DRAKE: Snowden carefully saw what happened to me and others. And it was clear there was no other recourse.

GEORGE ELLARD: Snowden could have come to me. In fact, he would've been given some protections.

WELNA: That's George Ellard, the NSA's inspector general. Earlier this year, Ellard spoke at Georgetown University's Law School. He said he could not say what would've been the proper way for Snowden to raise his concerns, but the way it happened was very, very bad. Snowden has claimed he did try to blow the whistle internally at the NSA, but Ellard said he'd never heard from him.

ELLARD: Perhaps it's the case that we could've shown, we could've explained to Mr. Snowden his misperceptions, his lack of understanding of what we do.

WELNA: Since Snowden made off with the NSA's secrets, the rules for whistleblowers have changed. President Obama has issued a directive aimed at giving greater protections to whistleblowers working for intelligence agencies since they did not have the protections covering other federal employees.

DAN MEYER: Supervisors and managers need to understand that whistleblowing is a lawful mission in the national security interest.

WELNA: That's Dan Meyer who is, himself, a former federal whistleblower. He now works for the inspector general at the Office of the Director of National Intelligence. What's new here is the job he holds. Meyer's title is executive director for intelligence community whistleblowing and source protection. He says he looks out for potential whistleblowers as much as the spy agencies that employ them.

MEYER: We need to get to that employee in the last cubicle in the furthest most office whose hoodie is about to go up and let them know that if they need to get the information to somebody who can address the wrongdoing, we have the way of proceeding with that process.

WELNA: Under the president's new directive which Congress just codified into law, someone like Thomas Drake, who tried blowing the whistle while still working at the NSA, would have a chance to appeal to inspectors general at other intelligence agencies. Such a hearing, though, is by no means guaranteed. And the protections don't extend to everyone. Former employees, such as Bill Binney, would not be covered, nor would outside contractors, like Edward Snowden.

DANIELLE BRIAN: At the moment, they are absolutely hung out to dry.

WELNA: That's Danielle Brian, whistleblower advocate and an executive director of the Project on Government Oversight

BRIAN: And what's extraordinary is the intelligence community has been increasingly privatizing its activities. And you're having more and more people who are private contractors with the highest levels of clearances who find out about some of the most potentially troubling misconduct, but they are without any serious protections.

WELNA: She's pleased that Dan Meyer has been put in charge of implementing the new whistleblower guidelines. But she says there are other problems with the new rules. They still don't get whistleblowers complaints out of the intelligence community and into the courts where she says whistleblowers want them to be. The only time they do get into the courses is when they're charged with a crime, including under the Espionage Act. Jesselyn Radack of the Government Accountability Project is a lawyer for both Edward Snowden and Thomas Drake.

JESSELYN RADACK: The Whistleblower Protection Enhancement Act says you can't retaliate against someone for blowing the whistle, but provides no remedy when you are retaliated against.

WELNA: Such as being stripped of your security clearance, making it impossible to do your job. When I asked whistleblower Bill Binney his advice for anyone thinking about doing what he did, he had a ready reply.

BINNEY: The first thing is get a lawyer, get legal advice.

WELNA: The other thing, Binney added, is never compromise your character and integrity. David Welna, NPR News, Washington. Transcript provided by NPR, Copyright NPR.