Thomas Drake on Whistleblowing, Oversight, and the Future of Electronic Surveillance

Edward Snowden was not the first whistleblower at the National Security Agency. In 2006, Thomas Drake, then a NSA executive, leaked information about waste, fraud, and abuse at the NSA to a reporter at the Baltimore Sun. He was later indicted by the U.S. government on the charge of willful retention of national defense information. All original charges against him were later dropped.

Mr. Drake was a panelist at the CIC Toronto Branch conference The Electronic Surveillance State. IRDTP Fellow Scott Young spoke to him there about whistleblowing, oversight, and the future of electronic surveillance.

Why is whistleblowing important within intelligence agencies?

It is extremely important. In some ways, people argue that whistleblowing from the secret side of government, the national security apparatus, is probably the most crucial because it’s the secret side of government. The public has very little insight into those activities. The government gets to hide behind these closed doors. Even the intelligence committees who have the special clearance as necessary get pawned by the same intelligence agencies and departments because the committees don’t necessarily follow-up or have access to everything that is going on either. Even in the intelligence community and agencies, the NSA is not permitted to use secrecy or the classification system to hide fraud, to hide waste, to hide wrongdoing, illegality or administrative inefficiencies and embarrassment. Yet unfortunately, intelligence agencies have become a means by which the government gets to conduct kind of off-the-books activities that clearly they can protect from disclosure, unless a whistleblower exposes them.

Is it preferable to have an internal mechanism where whistleblowing to the public is not necessary, but rather having that sort of internal dialogue within an organization?

Yeah, if it was truly independent and if it truly held the system accountable. The problem here is that it is entirely corrupted. As it stands, there’s no teeth, so if there are no teeth, it is going to be very challenging for a whistleblower, knowing they are going to be exposed to reprisals. I am a prime example, exhibit number one. Why would I put myself at risk when my chances of actually being called out within the system are going to mean my career is probably over or I’m going to be tagged as a troublemaker? Most people don’t because there are just no teeth. There needs to be real reform.

Could you describe what are the key components of adequate and sufficient oversight? What should oversight entail for a surveillance organization?

Well, oversight has to be truly independent. It can’t be beholden to the very mechanisms that allow the intelligence agencies and departments to control them. They can’t, and that’s what has happened. I mean you did have all these abuses in the 1950s, 1960s, and 1970s, culminating in the 1970s with the Nixon administration. Out of that came legislation that formed the intelligence standing committees. The problem is the standing committees are co-opted. If you look at them right now, a number of the staffers are former lobbyists from corporations. They have different interests in mind. It’s just been entirely co-opted, so it’s not oversight anymore, it’s just a veneer of oversight with the exception of a couple of senators like Wyden and Udall. Senators Wyden and Udall respectively have done their darnedest while remaining within the system and pushing it right to the edge. But they will not do what Mike Gravel did with the Pentagon Papers, by putting the top-secret Pentagon Papers on the Congressional record. If a senator did that now they would be booted off the Committee, they would be censored.

So real oversight has to be independent, it has to have true subpoena power. It has to be able to investigate, going anywhere the information leads them. And there needs to be fundamentally a protective channel, because in many respects, oversight is going to rely on sources themselves. Those are whistleblowers. They have got to provide the protection, and by that, I mean that if they are disclosed or exposed, they are protected. The whistleblower must be protected in coming to an oversight committee, as well as the ability to have access to the courts. Because what happened in my case I was essentially blacklisted, broken and bankrupted by virtue of having exposed government criminality and wrongdoing on an extraordinarily large scale.

Earlier today [during the conference proceedings], you spoke about how you don’t think parliamentary oversight in Canada would be adequate, and that you have your reservations. Could you elaborate on that?

I have significant reservations based on the US system. This idea is that somehow if we have a parliamentary oversight committee, it will solve the problem by basically giving clearances to a special set of parliamentarians. But don’t look to the US. Just because we happen to have congressional oversight committees doesn’t mean we are actually providing real oversight. It is actually protecting the agencies from real oversight.

Do you think oversight can come from outside of government, or does it have to be housed within the government apparatus?

Given my own experience I believe oversight has to come from outside the government. We have actually made just that recommendation, myself and William Binney and other NSA colleagues, we put together an open letter to the President. We followed that up with a set of 21 recommendations, including a liberties board that is completely independent.

Given the Snowden disclosures and what he has done, how do you feel about (1) the future of oversight, and (2) the future of electronic surveillance?

Well the future of oversight is that it’s really not oversight. I remember being in meetings preparing for formal statements on the record in a closed session. And the NSA staffers weren’t going to tell them the truth, they said “we are just going to tell them what we want them to hear, not what they need to know.” This is a blatant, blatant manipulation of the system. Even when General Hayden used to speak to congressional committees, the only person he worried about, the only person he concerned himself about was the Chairperson, who at the time was Porter Goss on the House Intelligence Committee. Hayden didn’t care about anybody else. He didn’t care about staffers or the other members, because the chair had been given unfortunately extraordinary power to either keep proposed bills within committee, or to determine who you are going to bring in front of the committee for testimony.

In terms of technology, if human history is any guide, if we create the technology we use it. Unfortunately technology is neutral. It can be used for good intent or it can be used for bad intent. It can be used to provide for the general welfare and the wellbeing of people, or it can be used for purposes that tear societies apart. There is an extraordinary quote from Frank Church where he said that with advances in technology we could approach a point where we cannot take ourselves out of the abyss, that we would essentially have a turnkey totalitarian state. The government would have so much information on us that although we have the veneer of being able to walk around freely, everything there is to know about you will be known. Do we really want to live in that kind of society?

But on the other side, technology has given us this extraordinary ability to communicate. Just look at all the industries that have been created. I don’t want to take away from that. I don’t want people to think that somehow because, yes, the Internet has become the greatest surveillance platform that was ever created, it hasn’t also fostered a whole lot of other things as well. That is why I find it so unconscionable that NSA would actually erode the foundational infrastructure, the protocols that allow us to enjoy that technology, just for the sake of surveillance.

Any final comments?

Surveillance and secrecy is absolutely anathema to liberty and privacy. It’s just absolutely anathema. The thing that’s important is somehow we need to find this balance. The surveillance state, by definition, assumes you are guilty. It may not say you are guilty but it’s just the persistent gaze, the panopticon, the jailer who would have an unfettered view of every prisoner in the building. It was supposed to optimize the ability to know what they were doing in their cell. You knew the watcher could be watching. Well, who is watching the watcher and what is the watcher watching and why? If we have essentially created digital fences around us, virtual fences, isn’t that the same thing? I know people that are already censoring themselves. If they’re willing to admit that, that means they are self-censoring. The government doesn’t have to really surveil you, you yourself will choose not to say certain things just in case they might be watching. You will alter and modify your day-to-day patterns just in case. Having lived under surveillance for a number of years and given that my activities, my whistleblowing disclosures were criminalized, I know what it’s like to be living on the receiving end of a surveillance state. I don’t want to live in that kind of society.