by James Risen
Next, Roark approached Charles Allen, a legendary figure in the CIA and one of the few top CIA officials who had displayed genuine interest in the NSA and its problems over the years. Over lunch, Roark told Allen about the warrantless wiretapping program, and said that she believed the operation was illegal. Allen said nothing, and by the end of the lunch, Roark realized that Allen already knew about the program and had not objected to it.
In perhaps her most naive move, Roark next called David Addington, an old acquaintance from their days working together on the House Intelligence Committee. Addington had long since left the House committee and become one of Vice President Dick Cheney’s most powerful aides. From his post at Cheney’s right hand, Addington had become one of the architects of the Bush administration’s policies in the war on terror and was a fierce advocate for the NSA domestic spying program.
Roark could not reach Addington personally, so she left a voicemail message for him at the White House, telling him that it was very important that they meet, that she had been handling the NSA account for the House committee, and that she was very troubled by something that had happened post-9/11. Addington never called back.
Frustrated by her inability to stop the NSA program and depressed by discovering that so many people she knew were protecting the secret, Roark decided to retire from the House committee in April 2002. But she wanted to make one more push to stop the NSA program. On March 20, 2002, just before she left the committee, she arranged to have breakfast with committee chairman Porter Goss. After small talk, Roark brought up the warrantless wiretapping program. She told Goss that she knew that he must have been briefed about the program, but she said she wanted him to know that the operation was of “questionable legality” and was unsustainable. “This cannot go on forever,” she told Goss. “It’s going to leak and the committee is going to look bad” for not trying to stop it, she warned him.
Haltingly, Goss defended himself, saying that he had not been allowed by the White House to have any staff with him during the secret briefing that he and Pelosi had received on the program, adding that he had also not been able to receive an independent legal review. He said he had accepted the White House’s assurances of its legality, and instead had tried to evaluate the program purely on national security grounds. Roark then told him that the NSA had no reason to remove the protections for American citizens from the collection system. She said those protections could even help make the intelligence collection more efficient, and urged him to try to get the NSA to restore them.
Goss agreed that the secret program would eventually leak, and that it would be bad for the committee. He added that the Bush administration’s repeated extensions of the NSA program—the White House and Justice Department were reauthorizing it every forty-five days—were beginning to worry him. Roark passed on information she had recently learned, that the NSA had already doubled the number of large computer servers devoted to the wiretapping program, increasing the program’s scale. Yet only a small number of NSA analysts were assigned to sift through the massive amount of data because top NSA officials were trying to minimize the number of people who knew of the program’s existence. As a result, Roark told Goss, the Bush administration was taking a huge legal risk to operate the program, but it was not being used effectively.
Roark made an impression on Goss. That same day, Goss went out of his way to publicly praise Roark’s work, when he took to the House floor to mark her retirement and laud her aggressive approach to conducting oversight of the NSA: “If it were not for the efforts of Ms. Roark, I do believe that our committee’s efforts to oversee and advocate for NSA would have been much less effective, and for that she has my personal thanks,” he said.
“Recently,” Goss added, “one of the senior managers within the community commented on her performance by saying that our staff is very aggressive in their oversight and has a very serious and in-depth knowledge of our programs, sometimes a better understanding than some of the senior managers do. I think that this is the type of oversight capability that the American people are entitled to and should demand.”
Secretly, Goss also began asking the NSA more questions about the warrantless wiretapping program. Goss later told Roark that Hayden did not like the fact that Goss was starting to press him.
Just five days after her meeting with Goss, Roark decided to go to Hayden directly, and she had the first of two meetings with the NSA director to discuss the domestic spying program. Over the course of their two secret meetings, Hayden and Roark engaged in a fierce debate over the NSA program—the kind of debate that the Bush administration was desperate to avoid having in public.
Roark used a pretext to get the first meeting with Hayden, but he was a step ahead of her. As soon as she arrived, he quickly raised the issue of the warrantless wiretapping program because Goss had already told him that she opposed it. Hayden defended the program’s legality, claiming that it had been endorsed by lawyers “from three branches,” and specifically cited David Addington.
Yet for Roark, it was their second meeting that was far more memorable and dramatic. By that time, Roark knew more about the NSA program and was better prepared to challenge Hayden.
Hayden probably suspected that Goss’s increased questioning about the program had been driven by Roark, whom he had not trusted since the battle over Thin Thread and Trailblazer. So, in July 2002, after she had already retired from the House committee, Hayden called Roark and asked her to meet him at NSA headquarters.
Taken aback, Roark called Goss for his advice. He encouraged her to meet with Hayden “because you both speak the same language.” There was tension in the air as soon as Roark arrived in Hayden’s office at NSA headquarters on July 26, in part because of the power imbalance between the two. Hayden was an air force general, the director of the largest agency in the U.S. intelligence community, and a confidant of Bush and Cheney. By contrast, Roark was merely a government retiree. But from Hayden’s perspective, Roark was a retiree who knew too much.
They first went over old ground—the contracting war between Thin Thread and Trailblazer—but soon launched into a detailed discussion of the domestic surveillance program. Roark began by asking Hayden why they had taken the protections for U.S. citizens off the Mainway system, but he refused to answer. She repeated her question. Why did they remove the protections? Finally, Hayden blurted out the harsh truth. “He said we didn’t need them because we had the power,” recalled Roark. “He wouldn’t look me in the eye when he said it.”
“I said that the protections would not hurt and might even assist analysis by making it more rules-based and automated, especially since only a very small number of analysts were cleared for the program and its massive amounts of data,” Roark told Hayden, according to notes she kept of the meeting. She had raised the same issue in their meeting in March, but it was clear to her that Hayden had not followed up to get more information on her arguments.
“I pushed hard and repeatedly about why he had dropped the protections” for American citizens. “He avoided answering until finally he said again that they didn’t need them because they had the power.” Roark was stunned by Hayden’s brutally candid answer.
Roark then told Hayden that she had heard that the domestic surveillance program was already expanding, and Hayden told her it was true. This expansion, coupled with what Roark had previously heard about the doubling of the number of computer servers assigned to the program, indicated to her that the NSA was heading on a path toward unleashing its full surveillance powers on the United States. In her unclassified notes from the meeting, she said that Hayden confirmed that additional forms of data collection were taking place. She then replied that the expansion meant that restoring protections for American citizens was more important than ever.
Prodded further by Roark, Hayden admitted that “we are not in the business of minimizing U.S. citizens.” That meant that the NSA was now in the business of spying on Americans. She then asked Hayden h
ow long the program was going to run and when it would end. He shook his head no and said, “It is now among us.”
Roark also pressed him on the limits of the program, and Hayden suggested that the only real limit had been imposed by Rep. Nancy Pelosi in exchange for going along with the program and maintaining her silence about it. Hayden told Roark that “Pelosi had repeatedly warned him not to go beyond the CT [counterterrorism] target, and for now they were adhering to that.” In other words, the Bush administration and NSA eventually wanted to use the domestic spying program for purposes that had nothing to do with the global war on terror.
Roark asked him if he had a court order approving the program, and Hayden said no. Roark countered that if the NSA received court authorization, it would be much easier to disseminate the data throughout the intelligence community for wider analysis and more efficient use. But Hayden again said “that they did not wish to draw attention” to the program by seeking legal authorization either from new congressional legislation or through the courts. Hayden told her that the lawyers had approved the warrantless wiretapping program based on the president’s wartime powers as commander in chief. He added that even if the secret program ever became public, he would still “have the majority of nine votes.” Roark took that to mean that Hayden believed that the Supreme Court would back him and the Bush White House in a constitutional showdown over the program.
”I insisted that he needed a court order, that opinions about the constitutionality and SCOTUS votes are simply opinions, not fact, and he was placing himself and his agency at great risk. He again demonstrated supreme confidence the powers were there. He realized it would leak, but believed he would come out looking well, and indeed would like to reveal parts of it himself.”
Finally, Hayden explained why he had really asked Roark to his office. He told her that he wanted the program to run as long as possible, that he wanted more time. In other words, he wanted Roark to keep quiet about the program and not leak its existence. Roark looked back at him and quietly told Hayden that she was not going to go to the press. She had no intention of divulging what she knew about the wiretapping program to a reporter.
But that was not good enough for Hayden. He said he did not want her talking to any members of Congress about the program, either. Roark realized that Hayden considered providing information to Congress a leak. He wanted knowledge of the program’s existence to be limited to the few congressional leaders who had already been officially briefed. He insisted that he was confident he was “well within constitutional powers.”
Roark left Hayden’s office more alarmed than ever, and found his statement that he believed that the Supreme Court would go along with the NSA program particularly chilling. Roark decided that she needed to try to get to the Supreme Court before Hayden.
Bill Binney and Kirk Wiebe told her that they knew a government contractor who had mentioned to them that he knew the daughter of Supreme Court Chief Justice William Rehnquist. So Roark took a chance. Using official stationery from the House Intelligence Committee to help verify her credentials, Roark wrote a note to the chief justice, stating that she wanted to meet to tell him about an NSA program that appeared to be unconstitutional. She then arranged for the contractor to hand deliver the letter to Rehnquist’s daughter with instructions for her to give it to her father. Roark never heard back from Rehnquist.
Increasingly depressed, she realized that she was fighting the entire Washington power structure. She had gone to all three branches of government—Congress, the White House, and the courts—and had discovered that there was a conspiracy of silence among the nation’s most powerful public officials to protect an unconstitutional operation. “It was very clear to me that there were all these people who had signed over their lives, and that they had pledged not to talk about it.”
Roark tried one last time. In September 2002, she joined with Binney, Wiebe, and Loomis to file a formal complaint with the Defense Department’s inspector general about the NSA’s decision to go with Trailblazer over Thin Thread, accusing the agency of wasting taxpayer money on Trailblazer. When they met with investigators from the inspector general’s office to discuss their complaint in detail, Roark asked Binney and the others whether they wanted to bring up “the other issue”—the NSA’s domestic spying program. Binney shook his head no, and Roark dropped the matter.
She had reached a dead end. In 2003, she moved back to her native Oregon, tried to work with Binney, Wiebe, and Loomis to start a new company to commercialize the Thin Thread technology, and finally settled into retirement. She was still depressed that she had not been able to stop the NSA program, but she had abandoned her efforts to raise the alarm.
Thomas Drake, a senior NSA manager, heard about the NSA’s warrantless wiretapping program soon after its inception, too. Like Diane Roark, he decided that he had to do something. But just like Roark, Drake found it difficult to find anyone within the government willing to take action.
Drake had come to the NSA by an unconventional path. Earlier in his career, Drake had served in air force and naval intelligence and spent time as an analyst at the CIA. He was working for an outside contractor when he was hired in 2001 by the NSA as part of an effort by Hayden to bring in young managers to foster change. It was Hayden’s answer to the obvious signs that the NSA was bloated and moribund. But the problem was that Drake and the dozen newcomers Hayden recruited were never given any real authority. They kept running into brick walls whenever they proposed changing existing practices. Rather than directly confront the entrenched bureaucracy, Hayden seemed content to turn over more and more of the NSA’s operations to large outside contractors like SAIC.
Eventually, Drake became convinced that Hayden had brought in the newcomers just for show. It had been a token effort to make it appear as if he was serious about change, Drake was convinced. Most of Hayden’s newcomers quickly became frustrated and left the agency.
Drake was still there at the time of the 9/11 attacks, still serving as a kind of free-floating management troubleshooter, and that job gave him a remarkable ability to roam around the NSA in the immediate aftermath of one of the greatest intelligence failures in American history.
Drake had developed a reputation inside the NSA for being curious and approachable, so in the days after 9/11, he became a sounding board for angst-ridden NSA employees who told him stories about how the NSA could have—and should have—prevented the attacks. One distraught NSA analyst showed him a report his unit had prepared months earlier about al Qaeda that Drake said identified many key players in the terrorist network—including the names of some of the hijackers. The analyst told him that NSA management had refused to disseminate the report outside of the agency, and so the report had never been sent to the CIA, FBI, or the White House. Others told him that after the attacks, they had reviewed the available data and discovered dozens of communications that held clues that had been ignored.
In the days after the attacks, Drake was assigned by Maureen Baginski to scour the NSA for any programs that could be brought into Bush’s new war on terrorism. Like Roark, Drake had been impressed by the possibilities of Thin Thread, and so he wrote a memo to Baginski urging that Thin Thread, along with several other programs, be deployed as soon as possible. But in a cryptic reply, Baginski returned the memo with a handwritten note simply saying, “They don’t need it any more. They have gone with a different program.”
What she meant was that the NSA had taken the protections off Mainway and turned it into something very different. Drake realized this after he began to hear from several NSA officials about the agency’s warrantless wiretapping and domestic data-mining program, which now had its own code name—Stellar Wind. One of the NSA officials who told him about the program was a supervisor on Stellar Wind; he was troubled by it and not certain it was legal. Other NSA personnel who had fragmentary knowledge of Stellar Wind also approached Drake, figuring that he was close to top management and so might know more about what was g
oing on.
Drake approached Ben Gunn, the technical manager on Stellar Wind, and Drake came away from their conversation convinced that even Gunn privately had qualms about the program and the agency’s new direction. (Gunn did not respond to a request for comment.) Finally, Drake confronted Baginski about it. In an awkward conversation in her NSA office, Baginski would say only that the decision to launch the warrantless wiretapping program had already been made and was out of her hands. But Drake persisted. “I said, do you realize what you are saying?” recalled Drake. “I said, they are bypassing FISA. And she just looked away.” (Baginski declined to comment.)
Drake said that Baginski told him that if he had a problem with what was going on, he should talk to the NSA’s lawyers. So Drake arranged a meeting with Vito Potenza, then the NSA’s acting general counsel. Potenza told Drake that “the program,” as he called it, was perfectly legal and had been approved by the White House. When Drake persisted, Potenza made it clear to Drake that the matter was really none of his business.
Drake was still frustrated, so when he was asked to talk about the NSA’s performance by two early congressional probes into 9/11—one by a House intelligence subcommittee and another by a joint House-Senate inquiry formed specifically to investigate 9/11, a precursor to the official 9/11 Commission—he seized the opportunity. He met privately with staffers for the House subcommittee and from the joint inquiry, and told them about Stellar Wind. Drake was disappointed when they failed to follow up and never mentioned it in any report.