All right, y'all, welcome back to the show.
It's Anti-War Radio.
I'm Scott Horton and our first guest on the show today is Empty Wheel, Marcy Wheeler from FireDogLake, that's EmptyWheel.
FireDogLake.com, and she has been covering the case of Thomas Drake, or better, the Thomas Drake case.
Welcome to the show.
Hey, thanks, Scott.
Good to be here.
Well, I'm very happy to have you here.
So, uh, good news, right?
The, uh, national government's case against, uh, this, uh, whistleblower, NSA whistleblower, Thomas Drake has completely fallen apart and they've let him, let him off with a $50 in time serve, like on NYCORD, huh?
Something like that.
Yeah.
Um, they went from trying to put him in jail for 35 years to probably letting him off with no jail time.
Big, big embarrassment for DOJ.
Awesome.
And it wasn't because he had marquee post for his defense lawyer, right?
No, he had public defenders defending him and they did a superb job.
But, uh, but part of the problem was, I mean, there were two problems with the government separate or maybe 10 or 20, but one of the problems is, uh, the prosecutor on this case is a guy named William Welch.
And he's best known as the prosecutor on the Ted Stevens case that crashed and burned, um, after the prosecuting, the prosecution team did all sorts of, um, unethical stuff.
Um, eventually Ted Stevens, you know, that whole case was thrown out, not because the case wasn't there because the prosecutor was such a buffoon.
Well, same buffoon.
They got, for some reason, Obama decided to put this guy in charge of, of hunting down all these leakers and he's still a buffoon.
So that's one reason.
And the other reason is what the government was trying to do and keeps trying to do is apply the espionage act, which of course is supposed to be about five to leaking and it just doesn't work.
And so, um, they kept bumping up against trying to find a way to prosecute this guy without actually, you know, using any of the information and ultimately, I mean, one of the things that they were trying to do was prosecute him for information that wasn't classified.
One of the documents they charged him for has subsequently been declassified.
Another one was not classified at the time.
You know, you really ought to be asking ourselves why DOJ is charging people for leaking information that is not classified.
Um, but then the other thing that happened was, uh, earlier in the week, the judge in the case said, you know, you have to allow this guy to defend himself and you have to allow him to explain what the materials in the alleged leak information really had to do with.
Otherwise you can't use those materials.
And the government said, fine, we won't use those materials.
And that meant the three charges related to actually classified information or purportedly actually classified information also had to be withdrawn.
So, ta-da, all of a sudden you have a plea bargain.
Well, you know, this is a funny thing.
It seems like, best I can tell, um, his whistleblowing had to do with not so much crimes, uh, but more Keystone Cop, uh, Three Stooges style government inside the NSA is what he was whistleblowing about.
And then they put the Three Stooges in charge of the prosecution too.
And so now he's free to go.
That's great to hear.
Well, actually, I wouldn't say it was Keystone Cop.
I would say it was privatization of government because what, I mean, the key thing that he was whistleblowing about is that there was a means to collect information, to collect signals and telecommunications data that was already in process in an NSA.
And then Michael Hayden came in in 1999 and said, no, rather than go with this in-house thing that works really well, we're going to go pay a billion dollars to SAIC to do it and do it much, much, much more poorly.
And that's what he was whistleblowing about.
So, um, you know, remember the illegal wiretapping that we all discovered about?
That isn't what he was whistleblowing about, but it was whistleblowing about collections, uh, and, and data mining and so on and so forth that, you know, not only did they do that, but they did it incompetently.
So it wasn't even useful from a counter-terrorism perspective because they were, they were drowning in data and they were drowning in data because they chose to pay SAIC a billion dollars rather than do it in-house for 3 million.
Well, you know, I was trying to remember how much of this is covered in James Bamford's book, The Shadow Factory.
I think I remember Thin Thread and all that from there.
Can you describe a little bit more about the, the, uh, controversy between the two different, uh, major software, uh, the, the programs they were trying to use to sift through all our stolen data?
Yeah, Thin Thread is the one that Drake was championing, um, and Trailblazer is the one that Michael Hayden paid a billion dollars for, um, and then subsequently had to scrap and, and Thin Thread's advantages are a, how they collect the, they basically, I think, forwarded information as they were collecting it.
So if it wasn't going to be useful, they just got rid of it right away.
Um, so they collected less information in the first place, whereas Trailblazer collected.
I mean, we know that the government came in and tapped into the, into the backbone of the telecommunication system and just took everything.
So one of the choices the government made in going with SAIC was to collect every, uh, everything, right.
And keep it, which means they have to pay to store it and, and keep, you know, keep the servers running to store it.
So that's one thing.
Another thing is, um, so Thin Thread was better at finding stuff because they were looking in information that was likely to have stuff, whereas Trailblazer, they were looking, you know, in yours and my dirty underwear drawer.
Um, the second thing is that Thin Thread had an auditing system so they could kind of see what was working and replicate what was working and stop doing what wasn't working.
Um, the really important thing for, for people like you and me is that Thin Thread also immediately, um, can protected anything that came from the United States.
They encrypted it.
And the only way you could decrypt it, according to the system they were trying to set up was go to a judge and say, here's probable cause that this telephone conversation between Scott and Marcy is actually has something to do with terrorism.
And, you know, of course you can see why Dick Cheney didn't like that.
Um, and so one of the, one of the things, this wasn't a big part of the case, but one of the things that Thomas Drake was trying to say is, look, there was a way to avoid collecting American's information and Michael Hayden and Dick Cheney chose not to do that.
And they chose not to do that and also ended up with a much less effective wire tapping system as a result.
Right.
Of course, depending on your premise of what it's meant to do, whether it's real purpose is simply collecting everything on everyone for future use, or whether they're actually, you know, looking for the next Mohammed Atta running around.
Perfectly.
So, uh, there was a couple of things I wanted to ask you about that.
Oh, the, uh, the probable cause there, they don't really have to show probable cause, right?
It's just a objective, reasonable belief or some very low threshold for the NSA or FBI, uh, counterintelligence or counterterrorism people to show the FISA court that, uh, they believe that somebody is an agent of a foreign power or a foreign terrorist group, and then they can tap everything from there, right?
They don't even need probable cause at all.
Correct.
Okay.
I just want to make sure and narrow down the terminology and make sure that I understand it right.
So it's, you know, Dick Cheney, in other words, could not argue or, you know, the war party on Fox news or whatever would not be able to argue that, um, yeah, but there could be U S persons who are foreign terrorists and you're encrypting all their stuff and putting it beyond reach.
It's not beyond reach whatsoever.
If they actually have any reason to believe that somebody, a U S person even is, you know, covered by the bill of rights, but, uh, is actually operating as an agent of a foreign power or foreign terrorist group.
Right.
Right.
Amazing.
All right.
So now, um, what all was it that, uh, Thomas Drake Lee, he talked to the Boston globe, right?
No, to, um, to Siobhan Gorman, who was then at the Baltimore sun.
She's now the Baltimore sun.
Right, right, right.
Yeah.
So, I mean, it was kind of NFA's home newspaper.
Um, but she, I mean, I've looked through her stories from that period on all of her stories.
I mean, she's a great reporter on all of her stories.
She had like 10 sources, you know?
So it wasn't like Thomas Drake was the sole leaker on this vast incompetence on the part of the NFA.
They were mobbed the people who were talking with Siobhan Gorman about it.
So, I mean, the fact that they chose to prosecute Thomas Drake and that, you know, that's one of the, that's one of the underlying stories here.
And Jane Mayer had had a really important piece on this just in the last week and a half is that, you know, the reason they went after Thomas Drake is because they suspected him and a couple of other people associated with him of being the leakers for the actual, uh, New York Times.
All right.
I'm sorry.
Hold it right there, Marcy.
We'll be right back.
It's Empty Wheel from Firedog Lake, y'all.
All right, y'all.
Welcome back to the show.
It's anti-war radio.
I'm Scott Horton and I'm talking with Marcy Wheeler, aka Empty Wheel.
That's emptywheel.firedoglake.com.
And we're talking about the case of NSA whistleblower, Thomas Drake.
Obama was trying to nail him to the wall with the Espionage Act, like he was Robert Hanson or something, when all he was doing was trying to tell the truth to the American people about scandalous behavior inside the government, otherwise known as heroic whistleblowing.
And their case completely fell apart, in part as Empty Wheel was describing because they hired one of the most inept federal prosecutors imaginable to put the case against him together.
That's good.
I'm glad, hopefully, uh, it's, well, apparently it's cost them a possible precedent set here at the very least.
And this guy gets to go free.
Uh, he's, he's pled guilty to only exceeding authorized use of a computer.
Uh, remember when they said Wen Ho Lee gave all our nuke secrets to China and they ended up charging him with nothing like that?
Same kind of thing, it sounds like.
Um, so, uh, now I'm trying to remember where we were.
Oh, I know you were telling us about how, uh, Jane Mayer, uh, had this piece in the New Yorker and how in there, uh, she was saying that there was at least some speculation that, uh, Drake was being prosecuted because they believed, although perhaps they couldn't prove that he was maybe one of the sources on the whole legal thing for, uh, uh, Rison and Lickblau at the New York times in the first place, is that right?
Yeah.
Um, not just him, but, um, uh, three of the, the three charges that, that the government had to withdraw because of, uh, because of SIPA, um, all pertain to an inspector general complaint that Drake participated in with about four other people, uh, one of whom was a congressional staffer and those are the people, um, and not even necessarily Drake, but some of those are the people that the FBI kind of fixated on as they were trying to hunt down, um, Lickblau and Rison sources.
And they, you know, did the big raid their house and grabbed their computers and so on and so forth.
And after they came up with nothing, then they kind of tried to put together a conspiracy case on this week and eventually only tried charged Drake.
Um, and only charged him because he had cooperated with the FBI and said, you know, yeah, I've, I've talked to Siobhan Gorman before, but I've, I've given her unclassified information.
Um, and instead they decided to go ahead and charge him and put him through a year and a half of agony and then turned out they had nothing.
Well, you know, not that I think they're competent enough to do this, but it seems like it would make sense for even if they know they don't have a case that they can really take to trial to go ahead and harass him and try to ruin his life for a year and a half like this, just to make an example out of them for others who might do the same thing.
Yeah.
And you know, they're definitely doing that, but I think one of the lessons, uh, that, that Jane Maris piece kind of intimated was that at some point you're better off leaking.
I mean, at some point you're better off just going to the press and on the record saying, and, and frankly, I think, I suspect that a bunch of information in Maris piece, uh, the government considers more sensitive than the information that Drake, I mean, if you, if you look at Maris piece, it's there, there's a lot of the same information in there as the Siobhan Gorman article that the government was most upset about.
And so, you know, basically what happened is all of the people who had made this inspector general complaint with Drake went to Jane Mayer and on the record with their names in print said, here's the problem.
Michael Hayden, um, had an opportunity to protect your privacy and he chose not to do it.
And Michael Hayden wasted, you know, a billion dollars when he could have gotten something better for $3 million.
So, you know, one of the, and, and as Merrick pointed out, the people who we know also were sources for lip blown, right.
And, um, people, people like Thomas Tam were never prosecuted.
So the, the lesson I think that people are going to come away with partly is that if, if you're going to leak information, go ahead and do it and admit it and do it on the record, because the government seems to be really squeamish about going after people like that.
And instead go after people like Drake who were, you know, who were staying, who weren't sharing unclassified information.
Well, you know, uh, I got a little anecdote like that too.
I'm not sure if you saw, um, on, uh, Pat Lang's blog, Six Semper Tyrannis.
Uh, he had a blog entry where he says, all right, Hey, look, everybody, it's a Seymour Hersh's new piece about the lack of an Iranian nuclear weapons program.
And then he has this whole very kind of intense disclaimer at the bottom.
Yes, I'm quoted in here, but the only things that I ever told Hersh I'm directly quoted and nothing else in that article is anything that I told him.
And I am not the quote, former military intelligence official in here.
And, and it wasn't me and nobody saw me do it.
And you can't prove anything like Bart Simpson, kind of a thing right there.
I mean, it seems to me, and that's, if that's an example of, of what, uh, you know, possible sources like Pat Lang, you know, cause he, he might be a source for other journalists off the record, um, or unnamed, but on the record, uh, you know, in other cases or something like that, he's the kind of guy who would write.
And apparently he's really scared that this is gonna, you know, that somebody would try to come after him for talking to her.
So he just wanted to make explicit exactly what he told her and that he didn't say anything else, have no classified access on any Iran NIEs or anything he says.
So, I mean, that seems to me like, boy, it must be really tough to be, uh, an investigative journalist this month or something that sources everywhere must be scared as hell to talk.
Yeah.
Yeah.
Um, and I mean, we'll, we'll see, cause the other, I mean, the other point you made is, uh, the government, you know, they're trying to reinvent the espionage act.
They're trying to apply what should apply to Robert Hansen to whistleblowers.
And it failed here.
Um, the same buffoon prosecutor is the guy, uh, prosecuting the, um, the Jeff Sterling case, which is the Merlin, um, again, another James Rice and source.
And there are some funky parts about that, that suit.
And so, you know, one of the things I think that, and then of course the government, uh, we don't know that Welch has any role in this, but the government of course, is trying to use the espionage act to get it at, uh, Julian Assange and, and they keep, and, and they also use the espionage act to try and get to these two APEC officials who were trying to, trying to get us to go into Iran, you know, and they keep trying to reinvent the espionage act to cover, um, the, the currency of leaks that goes on every day in Washington, DC, and it keeps blowing up in their face.
Um, and there was an aspect of, of the Thomas Drake case that wasn't much commented on, but I think was sort of interesting because in the last week, as the case started blowing up in the government space, one of the things Drake did was say, I'm going to argue that the information you say is classified, was all put into the public record by people in the white house, by the director of national intelligence, by people at NSA, by people in Congress.
And the government was balking at that.
They said, you can't make that argument.
And he's like, sure I can.
Um, and so it's a similar argument to what the APEC guys were trying to make.
Um, but I think it says something more general about, again, this economy of leaks in DC, which is everybody does it.
And at some point DOJ is going to have to face the fact that if they're going to try and prosecute the Thomas Drake's of the world, they're also going to have to prosecute the people who go and leak to Bob Woodward, right?
You know, at some point the double standard on whether only the really powerful can leak, you know, top secret FBI information and people like Thomas Drake can't even leak unclassified information.
That's the, that double standard has to end.
Well, and as you say, you know, assuming that we're going by laws here and we're not just going to grab a, you know, have the SEAL team six, go get Julian Assange and lock them in a dungeon in Thailand or something, if we're going to go with law here, well, the problem with that is the law already exists, right?
It's like a soccer game or something.
We already know what the rules of the game are before you start.
So at this point, unless they want to, you know, create an official secrets act like they have in England or something that we have not had in America this whole time, uh, they have nothing on Assange.
He's not doing anything different than what you're doing at Firedog Lake, which is journalism.
Right.
Right.
And I mean, there is no special category of spy that he is.
He's not a spy.
He's a website administrator.
Yeah.
Uh, yeah.
And I, and I think, you know, eventually maybe the big press, you know, the big traditional media in the country is going to wake up and figure that out because there is no way to rewrite the law in the way that they're trying to do without making journalists the target just as much as they're making whistleblowers the target, can't do it.
Right.
Well, and you know, it's so funny too, because in this day and age, most reporters seem just perfectly happy to not even do any investigative journalism at all, just show up and do the hairdo thing, try to get a TV news anchor spot or whatever, uh, argue about, uh, whatever supposed sex scandal of the week or whatever.
Why do they even need to bother messing with American journalism when American journalism is so far behind where it needs to be right now anyway?
You know, why pick a fight?
I don't know.
Maybe that's just my cynicism.
I'm like staying on South Park this week.
All right.
Uh, well, thanks very much for your time.
I appreciate it.
And I appreciate your blog very much, Marcy.
It's great.
Thanks, Scott.
Take care.
All right, everybody.
That's Marcy Wheeler.
Empty wheel dot fire dog, lake.com.
