United States of Secrets (Part One): The Program
NEWSCASTER: That looks like a second plane.
NEWSCASTER: That just exploded—
ANNOUNCER: At the National Security Agency, they called it “the program.”
THOMAS DRAKE, NSA Senior Executive, 2001-08: We are under emergency conditions.
ANNOUNCER: Created after 9/11—
THOMAS DRAKE: Extraordinary means are required to deal with the threat.
ANNOUNCER: —collecting data on American citizens—
BARTON GELLMAN, The Washington Post/FRONTLINE: You’re looking for unknown conspirators, and the way they devised to do that was to look at everybody.
ANNOUNCER: —secrets at the highest levels of government—
PETER BAKER, The New York Times: A whole new surveillance program without warrants—
MARK KLEIN, Former AT&T Technician, whistleblower: Designed for domestic surveillance.
MICHAEL HAYDEN, NSA Director, 1999-05: What we’re doing is lawful and I think is effective.
ANNOUNCER: —through two presidencies.
Pres. GEORGE W. BUSH: This is a highly classified program.
MARK KLEIN: He was collecting the entire Internet stream.
PETER BAKER: He chose to keep the programs largely intact.
Sen. RON WYDEN (D), Oregon: That’s not just data collection, that’s digital surveillance.
DIANE ROARK, Staff, House Intel. Cmte., 1985-02: I argued it was unethical, illegal and unconstitutional, and when this comes out, all hell is going to break loose.
ANNOUNCER: Tonight on FRONTLINE, United States of Secrets Part One: The Program.
NARRATOR: The biggest leak of government secrets ever began in December of 2012 with a single e-mail delivered to an IP address in Rio de Janeiro.
LUKE HARDING, Author, The Snowden Files: Glenn Greenwald, one of the world’s busiest journalists, is sitting in his home in Rio, and he sees an e-mail from someone he doesn’t know. It’s not a friend, it’s not his mum. And it just says, “I’ve got some stuff you might be interested in.”
GLENN GREENWALD, The Guardian, 2012-13: He didn’t use his name. And he said, very cryptically and very vaguely, that he had information that he wanted to discuss with me, but could only do so if I were to install encryption.
NARRATOR: Guardian newspaper columnist and blogger Glenn Greenwald didn’t pay much attention to the e-mail.
GLENN GREENWALD: Ninety-nine percent of the time, it ends up that they’re crazy or delusional, or the story is just not very good.
LUKE HARDING: And this guy, or girl — we don’t know who it is — is persistent, so a few days later e-mails again and says, “Look, Glenn, can you do this thing?” And Glenn still doesn’t do it. This attempt, basically, to leak all of these secrets initially just goes straight into the sand.
NARRATOR: The source moved on, this time to Berlin. He was soon exchanging e-mails with American documentary filmmaker Laura Poitras.
BARTON GELLMAN, The Washington Post/FRONTLINE: She had been in contact for over a month with a mysterious source who had reached out to her using her encryption key and using anonymous channels, and said he had a big story for her.
NARRATOR: A few weeks later, in New York, Poitras met national security investigative reporter Barton Gellman at a Greenwich Village restaurant.
BARTON GELLMAN: This was something she wanted to be exceptionally careful about. We agreed on a cafe to meet at. And we also, I think, both understood that when we got there, we’d move to someplace else.
NARRATOR: Poitras asked Gellman to vet the source and meet him electronically.
BARTON GELLMAN: Her source, who became also my source, needed to take very special precautions, in the usual NSA style. And so he called me “Brass Banner” and he called himself “Verax,” which means truth teller in Latin.
NARRATOR: Through sophisticated encrypted messages, Verax promised an unprecedented scoop. But it came with a warning.
BARTON GELLMAN: He believed he was risking his freedom, and possibly his life. And he warned me, as well, that if the U.S. intelligence community believed that by getting rid of me they could prevent the story from happening, he said that my life would be at risk.
NARRATOR: In late may, Verax surprised Gellman and Poitras. He sent them an invitation.
BARTON GELLMAN: He said, “Your destination is Hong Kong.”
NARRATOR: Poitras wanted to go. Barton Gellman, worried about a secret meeting in a foreign country like China, decided not to. But Poitras knew someone who might join her.
That spring, Glenn Greenwald arrived in New York to deliver a speech.
GLENN GREENWALD: And we met that night in my hotel, in the lobby. And she showed me these e-mails that she had been exchanging with this person who was claiming that he was a national security state insider with access to very sensitive information that he believed to be very incriminating, and stated very definitively that he wanted to turn it over to her and to me.
NARRATOR: Greenwald decided to join Poitras.
GLENN GREENWALD: We all knew that this was incredibly risky and uncertain, but the story had to be reported.
NARRATOR: In June, Poitras and Greenwald headed to the airport.
LUKE HARDING: I think they’re kind of quite excited, but there’s also a sort of feeling that maybe this is just the most terrific hoax.
NARRATOR: They were joined by Ewen MacAskill, a veteran Guardian reporter.
EWEN MacASKILL, The Guardian: At the time, I didn’t think it was for real, didn’t take it that seriously, and thought it was a slightly obscure story.
NARRATOR: Once they were finally airborne, Poitras thought it was safe to share with Greenwald something the source had securely sent to her.
LUKE HARDING: And that’s kind of quite a moment. They’re in a secure space, and so Laura creeps forward to go and see Glenn.
GLENN GREENWALD: Laura whips out this thumb drive, in a very sort of almost mischievous way says, you know, “Guess what this is?” and told me that she had just received a fairly large archive of documents.
LUKE HARDING: They kind of can’t control their excitement because this is clearly the biggest story that anyone’s worked on since the Pentagon papers in the 1970s.
GLENN GREENWALD: I didn’t sleep one second for the next 16 hours because the adrenaline made that impossible to do because I not only saw the magnitude of the documents, just the sheer quantity, the fact that we had in our possession thousands — not dozens or hundreds, but many thousands — of top secret NSA documents that were about a wide range of surveillance activities, that came directly from some of the most sensitive areas of the agency.
EWEN MacASKILL: I could see out of the corner of my eye Glenn with the light on throughout this 13-hour flight, you know, reading on his laptop all the time, Laura coming to see him, them having chats, and Glenn getting more and more excited.
GLENN GREENWALD: We essentially couldn’t believe what it was that we had. And that was really the first time, I think, I fully understood that this was going to be unlike any other story — really ever — in American journalism or politics.
NARRATOR: In Hong Kong, Greenwald and the others traveled to a hotel in Kowloon.
LUKE HARDING: Snowden’s instructions to Glenn and Laura are like a kind of magical mystery tour crossed with something out of John LeCarre. He tells them to go to a hotel, the Mira Hotel in Hong Kong, and says that he will meet them in a less-trafficked part of the hotel, next to a shopping mall, by a bench and a crocodile.
GLENN GREENWALD: We had still no idea of who he was, what his age was, what his race was. We knew nothing about him demographically at all. And so the plan that he picked was that he would be holding a Rubik’s cube in his hand, so that when he entered the room, we would immediately know who he was.
LUKE HARDING: All of a sudden, this guy comes past with a Rubik’s cube, scrambled up, which was part of the kind of code. But the man before them is not what they’d expected. They’d expected some grizzled CIA veteran wearing a blue blazer, maybe with a bit of dandruff, with a tie, receding gray hair. And they get this callow sort of thin-limbed student type who looks as if he’s just out of high school. And he is their source and he’s supposedly the guy who has got the crown jewels.
GLENN GREENWALD: When this 29-year-old kid, who looks a lot younger, shows up, it was extremely disorienting and introduced a real awkwardness to our interaction, and kind of a shock.
NARRATOR: Edward Snowden led the group upstairs to his room.
EWEN MacASKILL: In his bedroom, by the door, he’d piled pillows as high up the doorjambs as he could, and pillows along the bottom. So if somebody was outside eavesdropping, it would make it harder for them.
GLENN GREENWALD: There was always this kind of uncertainty, one might even say danger, hovering over the room, especially for the first few days, because we didn’t know what the NSA knew about what he was doing. So we thought it was very possible that the door could be barged down at any moment and someone could enter to arrest Snowden.
NARRATOR: They painstakingly debriefed Snowden for days. At one point, Guardian reporter Ewen MacAskill sent a text message to his editor in New York, Janine Gibson.
EWEN MacASKILL: Janine knew that I liked Guinness. So she said, “If Snowden is for real, send me a message and just say ‘The Guinness is good.’ “ And I was 100 percent sure that Snowden and the documents were for real, and I sent a message to Janine saying, “The Guinness is good.”
NARRATOR: The documents Snowden delivered revealed the history and details of one of the United States government’s most closely guarded secrets. It was known as “the program.”
The program began on September 11th, 2001, at Fort Meade in Maryland—
NEWSCASTER: —biggest story in Washington now, people talking about Michael Jordan’s comeback.
NARRATOR: —the headquarters for the National Security Agency.
NEWSCASTER: Does it look like September or what? What a gorgeous day.
MICHAEL HAYDEN, NSA Director, 1999-05: I’m in my office. I remember the day, brilliantly clear day, clear blue skies.
VITO POTENZA, NSA Dep. General Counsel, 1993-06: I was in his suite, waiting for a meeting. And we had started up the hallway to his office when the first plane hit the tower.
NEWSCASTER: We understand that a plane has crashed into the World Trade Center.
MICHAEL HAYDEN: My executive assistant, a young woman, came in and said, “Hey, we got reports of a plane hitting the World Trade Center.” And like 300 million other Americans, I thought, “Wow, small plane, sport plane, accident, too bad.”
NEWSCASTER: That looks like a second plane. That just exploded.
NEWSCASTER: —a collision. Can you see it?
MICHAEL HAYDEN: My poor security chief didn’t even have a chance to speak. I just turned to him and said, “All nonessential personnel out of here now.”
NEWSCASTER: Oh, my goodness, there is smoke pouring out of the Pentagon!
J. KIRK WIEBE, NSA Senior Analyst, 1975-01: Everybody had the TV on because the TV is where the news was. It wasn’t coming out of NSA’s computers, it was on the TV, because we had missed the entire event.
NEWSCASTER: —coming down—
NEWSCASTER: This is a live picture. We are seeing the second—
JAMES BAMFORD, Author, The Shadow Factory: It was an enormous shock that you have this huge agency set up to prevent a surprise attack, and they learned about it on a $300 television set tuned to CNN in the director’s office.
NARRATOR: At the White House, there was chaos, a near total evacuation.
BARTON GELLMAN: Secret Service bursts into the vice president’s office, basically frog marches him by one arm and the seat of his pants into this deep underground shelter that was built to withstand nuclear war.
NARRATOR: Almost immediately, Cheney directed his lawyer, David Addington, to prepare the case for the president to exercise his unilateral authority as commander-in-chief.
ALBERTO GONZALES, White House Counsel, 2001-05: David Addington, principally the vice president, was interested in ensuring that the president’s constitutional authority was used to its fullest.
BARTON GELLMAN: Cheney says, “I want you to tell me what powers we’re going to need, the president’s going to need, that he doesn’t already have to respond to this calamity.”
PETER BAKER: And they decided they’re going to push every boundary they have. Addington at one point says, “We’re going to push and push and push until some larger force makes us stop.”
NEWSCASTER: Tours of the Capitol will be canceled indefinitely.
NEWSCASTER: —received 4,000 reports of bombs—
NARRATOR: On September 12th, at NSA headquarters, the mood was somber.
NEWSCASTER: Question. Where did it all begin?
J. KIRK WIEBE: We began soul searching almost immediately. We all felt like a great wrong had been done and that we were all somewhat, if not all culpable.
Pres. FRANKLIN ROOSEVELT: —a date which will live in infamy.
JAMES BAMFORD: You have to remember that NSA was created after World War II to prevent another surprise attack. That was the whole raison d’etre for NSA. Pearl Harbor— we don’t want another Pearl Harbor.
NEWSCASTER: —information that more people involved in the plot remain in the United States—
J. KIRK WIEBE: Immediately, we began to wonder what we had done wrong. Why did we miss the boat? What didn’t we detect that we should have detected?
NEWSCASTER: The investigation continues in this country, as well as—
NARRATOR: In the aftermath, troubling questions emerged from deep inside the agency.
NEWSCASTER: —had lived for at least a year—
NARRATOR: Why hadn’t the NSA been able to connect the dots?
NEWSCASTER: —because of the recent violence—
PETER BAKER: It was a very cautious agency. It’s an agency that is fighting with one hand tied behind its back out of fear of a political backlash by being too aggressive.
NEWSCASTER: The president now at the door—
NARRATOR: During the Nixon administration—
NEWSCASTER: —a final wave—
NARRATOR: —the NSA had overstepped, spied on Americans.
Sen. FRANK CHURCH (D), Idaho: —certainly appears to violate the 4th Amendment to the Constitution—
NARRATOR: Caught and restricted by Congress, the domestic spying apparatus went dark for more than 20 years. It was against the law to turn the NSA on Americans.
RYAN LIZZA, The New Yorker: If you were an NSA analyst, this sort of legal regime was drilled into your head to the point where a lot of people said it’s made the rules too restrictive, and it’s hampered the NSA’s ability to detect terrorist plots.
NARRATOR: Some at the agency thought the NSA had been overly cautious and believed the 9/11 attacks could have been stopped.
EDWARD LOOMIS, NSA Cryptologist, 1964-01: I do believe it could have been prevented with revisions to the way we were permitted to operate before 9/11, revisions that I tried to get the general counsel to embrace and wouldn’t — and couldn’t. I tried to get them to make adjustments to how we were operating, how we were permitted to operate, and they wouldn’t do it! I felt this ever since it occurred, that over 3,000 people’s lives were lost. And it’s just a weight that I have been having trouble bearing! It’s— I’m sorry, I— [weeps]
NEWSCASTER: The toughest week for America since Japan bombed Pearl Harbor 60 years ago.
NARRATOR: All over Washington, there was a growing demand to stop the next attack.
ALBERTO GONZALES: We have to remember that, you know, we’d had— we had had terrorists living in this country for a number of months and we didn’t know about it. What else didn’t we know? And so there was a great deal of concern about the fact that— that we not only could not connect the dots, we could not collect the dots.
NARRATOR: At the CIA, director George Tenet was under pressure from the vice president.
JAMES BAMFORD, Author, The Shadow Factory: The director had a meeting with Vice President Cheney and his top aide, David Addington, and he was asked, “What can be done? What can be done that isn’t being done?”
DICK CHENEY, Vice president of the United States: 9/11 made necessary a shift of policy—
BARTON GELLMAN: Cheney says, in effect, to Tenet, “Make me a shopping list. Tell me what you want to do that we’re not letting you do yet.”
NARRATOR: Tenet, whose own agency was designing covert operations against al Qaeda, called General Hayden.
MICHAEL HAYDEN: George calls me and says, “Mike, any more you can do?” I said, “George, no, not within my authorities, not within my current authorities.” And he paused and said, “That’s not actually the question I asked you. Is there anything more you could do?” I said, “I’ll get back to you.”
NARRATOR: Hayden got the message. At NSA headquarters, he spread the word— “Take the gloves off. Bring me an aggressive plan.”
EDWARD LOOMIS, NSA Cryptologist, 1964-01 : And they asked me, “Is there anything that we had that could have prevented 9/11?”
NARRATOR: Loomis told them what he believed was necessary— begin monitoring foreign Internet traffic going through the United States.
ED LOOMIS: The U.S. Internet hubs handle so much of the worldwide Internet traffic. So I said, “Let us allow collection between U.S. and foreign, foreign to U.S. against the terrorism problem.”
NARRATOR: But others in the agency were proposing much more aggressive data collection.
PETER BAKER: What they proposed to do is create a whole new surveillance program without warrants, trapping all sorts of information, taking advantage of the fact that modern communication trunk lines tend to come through the United States.
BARTON GELLMAN: The idea of this program was you’re looking for unknown conspirators, and the way they devised to do that was to look at everybody.
NARRATOR: It was the outline of something Hayden could take to the vice president. He headed to Washington to propose the idea.
NEWSCASTER: —one of the worst days in American history—
NARRATOR: It would be his first meeting in the Oval Office.
NEWSCASTER: —economy as a whole. There was a massive sell-off on Wall Street today.
ANDREW CARD, White House Chief of Staff, 2001-06: Prior to 9/11, I don’t think I knew General Hayden. I probably knew his name. I doubt that the president knew his name.
JAMES BAMFORD: It’s a very big change for the director of NSA to suddenly have all this attention from senior officials in the White House, and so forth. And I’m sure it had a major impact on Hayden.
NARRATOR: The president had been briefed. He put his arm around General Hayden, called him his childhood nickname, “Mikey.”
MICHAEL HAYDEN: I walk in to see the president. It’s the president and the vice president in the room. Almost certainly, Condi was there as the national security adviser. Andy Card would have been there.
BARTON GELLMAN: Cheney suggests the question and George Bush asks it. “What would you like to do that you can’t already do that would help prevent another 9/11?”
NARRATOR: Hayden outlined “the program.” It would gather data on the phone calls and Internet traffic of hundreds of millions of Americans, then search it for suspicious connections. But he was worried about whether it was legal.
MICHAEL HAYDEN: And the first thing he says to me is, “Mike, I understand your concerns, but there are some things we’re going to have to do. And I think I have the authority to authorize you to do things that you’ve outlined.”
BARTON GELLMAN: The president says, “Go. I want you to go develop a program, come back to me. We’ve got the lawyers working on it. But you have my order, we’re going to do this.”
NARRATOR: Hayden left the White House knowing that “the program” was bound to be controversial.
MICHAEL HAYDEN: No president had authorized it prior to this time.
PETER BAKER: And Michael Hayden goes home after briefing the president and the vice president about his ideas for expanding surveillance and takes a walk with his wife.
MICHAEL HAYDEN: And she said, “What’s on your mind? I said, “Well, we’re going to go do something here.” And I didn’t get into any details. “We’re going to do something. One day, it’s going to be public. And when it gets public, it’s going to be very controversial. And the people doing it are going to be swept into this thing.” And she said, “Uh-huh. Is it the right thing to do?” “Yeah, I think so.” She said, “OK, we’ll deal with that when it comes.”
NARRATOR: On October 4th, in a secret signing with Cheney, the president Officially authorized “the program.”
BARTON GELLMAN: That order is written by David Addington, the vice president’s lawyer. It’s not written by the president’s lawyer. And this is not only unusual, but probably unique in the history of major U.S. intelligence operations, is written by the vice president’s lawyer and stored in his own safe.
NARRATOR: Addington worked out of a small office next to the White House in the old Executive Office building.
PETER BAKER: This order is one of the most closely kept secrets of the Bush/Cheney administration for four years. It’s kept so secret that many people involved in national security inside the White House and the government don’t know about it.
NARRATOR: Addington personally hand carried a copy of the secret document out to Fort Meade.
MICHAEL HAYDEN: He said, “I’m coming out. I’ll be there in about 30 minutes”— hand carried. This was very closely guarded that we were doing this. And he comes onto the campus at Fort Meade, up to the top deck, and hands me the order.
NARRATOR: Now General Hayden wanted the sign-off of his top lawyer, Robert Deitz.
ROBERT DEITZ, NSA General Counsel, 1998-06: I think he was concerned and wanted my view of whether this program was, was lawful. I spent a sleepless night pondering the legality of it. This was a very hard call. It was a very hard call.
BARTON GELLMAN: The NSA has a general counsel and about 100 lawyers. And they were told, “The president has signed it, it’s been certified as lawful, and once all the signatures are there, that’s it, we salute, we say, OK, it’s lawful. We’re going to go ahead.”
ROBERT DEITZ: In the intel world, if a president says to you, “I need this in order to keep the American people safe,” you need to try to figure out where that line is constitutionally and march right up to it.
NARRATOR: Two other NSA lawyers would also sign off on the program.
VITO POTENZA, NSA Dep. General Counsel, 1993-06: We came to the conclusion independently, but consistently, that there was no doubt in our mind that it was a legitimate use of the president’s Article 2 authority.
NARRATOR: General Hayden had heard exactly what he needed— Article 2, the president’s authority as commander-in-chief.
MICHAEL HAYDEN: I have my three good friends here, who’ve, you know, been my guardian angels of these things since I became director, saying, “This is good.”
NARRATOR: Now the massive collection of data could begin.
BARTON GELLMAN, __The Washington Post__/FRONTLINE: Who’s e-mailing whom? Who’s texting whom? Who’s doing Skype calls with whom? They’re collecting a lot of information, a lot of content of phone calls. They’re actually recording the voices— not for all of our calls, but for a lot of U.S. telephone calls. And they were doing this under an authority that had never existed before.
NARRATOR: It would be General Hayden’s most closely guarded secret. Only a small handful of NSA employees knew what the president had authorized. Most were kept out of the loop, including this man, senior manager Thomas Drake.
THOMAS DRAKE, NSA Senior Executive, 2001-08: My first day reporting on the job was the morning of 9/11.
JANE MAYER, The New Yorker: He had been in the military. He’d been in the Air Force. He’s devoted his life to national security issues. He’s a computer genius of a sort.
NARRATOR: Drake had no idea what had been going on between Hayden and the White House. He had been given a different task.
THOMAS DRAKE: I was actually charged to find— “Whatever you’ve got in the labs, whatever you’ve got in your agency, even if it’s not operational, put it into the fight. We need it. It might help us. We need to deal with the threat.”
NARRATOR: But according to the rules Drake thought he had to follow, whatever he found had to safeguard Americans’ privacy. He started by digging around inside the deepest reaches of the NSA’s secret R&D programs.
JANE MAYER: And he stumbles into sort of a skunkworks, and he discovers that there was actually a program before 9/11 that could have, as they said, eavesdropped on the entire world. It’s called ThinThread.
NARRATOR: ThinThread, a program that could capture and sort massive amounts of phone and e-mail data, was the brainchild of veteran crypto-mathematician Bill Binney.
WILLIAM BINNEY, NSA Technical Director, 1965-01: The whole idea was to build networks around the world of everybody and who they communicate with. Then you could isolate all the groups of terrorists. And once you could do that, you could use that metadata to select that information from all those tens of terabytes going by.
NARRATOR: But to make sure the NSA would not spy on U.S. citizens, Binney and the other analysts had built in privacy protections.
JANE MAYER: It anonymizes who it’s listening in on, unless there’s a court warrant that makes the identity of that person clear.
THOMAS DRAKE: If you knew that it was U.S. person-related, it would be automatically encrypted. That was part of the design of ThinThread.
[www.pbs.org: More about ThinThread]
J. KIRK WIEBE, NSA Senior Analyst, 1975-01: It had a data privacy section. That was working very well, protecting the citizens and innocent people by encrypting the data and not allowing analysts to look at it, even.
NARRATOR: Drake was ecstatic. The experimental program could monitor massive amounts of data, but the encryption would protect the privacy of individual Americans. He took it upstairs to the top deck.
THOMAS DRAKE: In those short days and weeks after 9/11, I put together a two-page classified implementation plan to put ThinThread into the fight, and I presented it to Maureen Baginski.
NARRATOR: Baginski was Drake’s immediate superior, the third highest ranking official at NSA.
JANE MAYER: It took a while to get any kind of response. He felt there was something strange going on.
THOMAS DRAKE: She would refuse to see me. None of her responses are ever electronic. None of her responses were in a form that would be recorded or saved.
JANE MAYER: Finally, he wrote a memo, sent it to her. And instead of responding electronically, which would have been normal, she wrote in a big, black felt pen.
THOMAS DRAKE: It was kind of a modified cursive. And she said, “They’re going with a different program.”
JANE MAYER: When Drake asked her what this other solution was, she said, “I’m sorry, I can’t tell you.”
NARRATOR: It didn’t take long for clues to emerge that something much bigger was going on.
JAMES BAMFORD, Author, The Shadow Factor: They started seeing stacks of servers piled in corners, and so forth.
WILLIAM BINNEY: So we had to walk way around all this hardware that was piling up out there. And so we knew, you know, something was happening.
JAMES BAMFORD: All of a sudden, people who normally would communicate with each other were keeping secret this new operation of some sort.
NARRATOR: Dozens of NSA employees were sworn to secrecy. But before long, details were leaked to Drake.
THOMAS DRAKE: I have people coming to me with grave concerns about, “What are we doing, Tom? I thought we’re supposed to have a warrant. I’m being directed to deploy what’s normally foreign intelligence, outward-facing equipment— I’m being now directed to place it on internal networks.”
NARRATOR: At the same time, Bill Binney and the ThinThread team heard that “the program” was using ThinThread but stripping out the privacy protections.
JANE MAYER: What they’re hearing is that the program they designed is in some form being put into use, but without the protections that they had designed in.
WILLIAM BINNEY, NSA Technical Director, 1965-01: What they did was they got rid of the section of the code that encrypted any of the attributes of U.S. citizens.
NARRATOR: Even Ed Loomis, who had wanted a more robust approach, was surprised at how far the agency was willing to go.
EDWARD LOOMIS, NSA Cryptologist, 1964-01: I just refused to believe, after all I had been through for 37 years, that all of a sudden, things would change and they’d go back to the old ways, back to the early ‘70s. I didn’t believe that they could possibly have just flip-flopped and gone 180 degrees the other way. I just didn’t believe it.
NARRATOR: To the ThinThread team, collecting data without a warrant seemed like a direct violation of the rules they had followed for years.
J. KIRK WIEBE: All these years having grown up, you never spy on Americans, we had suddenly become criminals by association. The agency had gone down a path that we had been preached to you never do. We were very, very, very concerned.
NARRATOR: And the fact that their ThinThread system had been incorporated into “the program” was the last straw.
WILLIAM BINNEY: We said, “We can’t stick around and be a party to this. We can’t be an accessory to all of these crimes, so we have to get out.”
NARRATOR: At the end of October 2001, Bill Binney, Kirk Wiebe and Ed Loomis all quietly retired. Tom Drake stayed behind.
JANE MAYER: So Drake is now still working away over at the NSA, with his worries rising about what’s going on in terms of domestic surveillance.
NARRATOR: Once again, Drake confronted Maureen Baginski.
THOMAS DRAKE: I made one final attempt, one final appeal to Maureen Baginski, and she demurred and she simply said, “Call the office of general counsel,” which I did. And I said, “I want to speak to the lead attorney.” She’d given me the name. “I want to speak’— it was Vito Potenza.
JANE MAYER: He goes to the general counsel’s office with his concerns and says, “I think this program may be illegal.’
THOMAS DRAKE: He proceeded to tell me, “You don’t understand. All the lawyers have approved it. It’s legal. We are under emergency— emergency conditions. Extraordinary— extraordinary means are required to deal with the threat. We just need the data.” And then in the most chilling— I don’t— often have said this part of the conversation, “Don’t ask any more questions, Mr. Drake.”
VITO POTENZA, NSA Dep. General Counsel, 1993-06: If he came to me, someone who was not read into the program, right, and not being part of what we were doing, and told me that we were running amok, essentially, and violating the Constitution, and it was in that timeframe when there was an awful lot going on and we were all worried about the next attack, there’s no doubt in my mind I would have told him, you know, “Go talk to your management. Don’t bother me with this.”
I mean, you know, the minute he said, if he did say, “You’re using this to violate the Constitution,” I mean, I probably would have stopped the conversation at that point, quite frankly. So I mean, if that’s what he said he said, then anything after that I probably wasn’t listening to anyway.
NARRATOR: “The program” was continuing to grow. In secret, the nation’s largest telephone companies were now giving the NSA the private call records of millions of Americans.
Tom Drake had hit a dead end inside the agency. That fall, Bill Binney took an extraordinary step. He decided to break ranks, to take the matter to Congress.
JAMES BAMFORD: The next move is to try to get some cooperation from Congress, from the Senate and House Intelligence Committees. And he finds an ally in Diane Roark, who felt the same way.
NARRATOR: Diane Roark was a top congressional intelligence staffer.
DIANE ROARK, Staff, House Intel. Cmte., 1985-02: I worked at the House Intelligence Committee for 17 years. And for the last five of those years, I had the NSA account for the Republican majority.
JANE MAYER: She’s an interesting character. She’s very conservative. She’s a Republican. She is in oversight of the NSA partly to make it powerful and also to keep it from wasting money.
NARRATOR: Porter Goss was Roark’s boss. Goss was the powerful chairman of the House Select Committee on Intelligence and future CIA director.
PORTER GOSS, Chair, House Intel. Cmte., 1997-04: Diane is the go-to girl on the House Permanent Select Committee on matters dealing with NSA. So she spent a fair amount of time at NSA. She knew personnel out there.
NARRATOR: Binney and Roark decided it would be safer to meet away from her congressional office.
DIANE ROARK: Bill came to me at my house and told me that part of their system, their ThinThread system, was being used for collection of domestic communications in a dragnet fashion, collection on everybody.
WILLIAM BINNEY: So Diane says, “They have gone rogue,” you know? That was her point. She thought they were gone rogue.
DIANE ROARK: I was aghast. I was absolutely aghast because NSA had— this— because this constituted a complete reversal of NSA policy.
JANE MAYER: Roark is a very feisty woman. She was just certain that there was no way that this program was legal. And she said, “And if the NSA officials are breaking the law, I am going to fry them.”
NARRATOR: Roark began to distribute a series of searing memos to the leaders of the House Intelligence Committee.
PORTER GOSS: Diane very capable, so good that she pierced the veil of a program that she was not briefed on, not cleared for, but knew something was going on.
DIANE ROARK: I updated them on what was going on, explained to them the— all the technology in as simple a way as I could. And I argued very strongly that they needed to have the protections restored. I told them that if they did not— if the administration refused to do this, they should insist that the system be killed, be stopped.
NARRATOR: What Roark did not know was that in October, the White House had invited a small group of congressional leaders to a secret briefing in the vice president’s office. General Hayden led the briefing.
PORTER GOSS: Mike Hayden is particularly good at coming in and explaining things in a way that, shall we say, neophytes in the business could understand it. And you really wanted to believe what Mike had to say and absorb it and digest it, rather than question it.
BARTON GELLMAN: He has very facile command of the facts. He’s also very good at eliding past the parts that he doesn’t think you want to hear and using very careful language to avoid saying things he doesn’t want to say while also avoiding any outright falsehood.
MICHAEL HAYDEN: Our purpose in this was to get the other political branch involved in this program. And so we would be defeating our own purposes, working against our own goals, if we weren’t full monty to these folks.
NARRATOR: But as open as Hayden says he was, he and the vice president’s office created strict conditions for the briefing.
PATRICK RADDEN KEEFE, Author, Chatter: You have the individual senator or member of Congress who’s brought in and read into a program. They’re not allowed to bring any staff with them. They’re not necessarily allowed to communicate any of what they’ve heard to their staff. In some instances, they’re not lawyers, so they may not understand all of the legal fine points. In most instances, they’re not technologists, so they may not be able to grasp what it is precisely that they’re being briefed on, or the implications of it.
NEWSCASTER: —14 people were killed and scores were wounded—
NARRATOR: They returned to Congress, some now feeling they were unable to exercise effective oversight of the program.
By the summer of 2002, it was running full speed.
DIANE ROARK: And I argued with everybody I met, and I got no refutation from them. I said it was unethical, immoral, politically stupid, illegal and unconstitutional. And stop. And when this comes out, all hell is going to break loose.
NARRATOR: Finally, Intelligence Committee chairman, Porter Goss had had enough.
PORTER GOSS: I said, “You need to talk to General Hayden. And you also need to know that concerns of the areas you’re talking about are known to me and I’m not going to discuss, because you’re, frankly, not cleared for this level of program or what’s going on here. But the fact that you have discovered this means that you need to talk to General Hayden.”
NARRATOR: Roark was summoned to the top deck at the NSA to meet with Director Hayden.
DIANE ROARK: My whole point in going there was to ask him why he had taken off the protections, the encryptions and the automated tracking. I asked this any number of times, and he always evaded answering. And I finally just decided I was not going to leave the room until I got an answer. And so I kept asking.
So about the fifth time, he looked down, and I remember he could not look me in the eye, and he said, “We have the power. We don’t need them.” And he made clear that the power he was referring to was the commander-in-chief’s chief’s wartime authority.
MICHAEL HAYDEN: It’s awkward for me having the conversation because she’s not been briefed on the program, all right? So— to a certain level of detail. I simply responded I disagree with both of her conclusions, that I think what we’re doing is lawful and I think what it is we’re doing is effective. And if I knew of a better way of doing it, I would do that, too.
DIANE ROARK: Toward the end of the meeting, General Hayden made it pretty clear that he wanted me to stop lobbying against the program.
MICHAEL HAYDEN: I said, “Look, and Diane, this is going to become public. And when it becomes public, you can argue your point and I can argue mine.”
DIANE ROARK: And so instead of allaying my concerns, this actually made me far more worried. It was clear to me that he didn’t like my talking to other people in the executive branch and on the House Intelligence Committee and trying to convince them to put controls on the program.
NARRATOR: For now, Hayden’s secret was secure.
NEWSCASTER: There’s a growing uncertainty that— like Sandra said, about a House committee—
NARRATOR: By early 2003, keeping the president’s program secret was about to become harder. In a small office at the Department of Justice, attorney Thomas Tamm had just started a new job.
THOMAS TAMM, Attorney, Dept. of Justice, 1998-06: I went in with a lot of patriotic fervor. I work with agents, FBI agents primarily, to try and develop intelligence about people that we thought were foreign agents or terrorists.
MICHAEL ISIKOFF, Journalist: He came from a family of FBI agents, but not just any FBI agents. His uncle was one of the top aides to J. Edgar Hoover. His father had also been a senior official under J. Edgar Hoover.
NARRATOR: Tamm would work with one of the most secretive institutions in Washington, the Foreign Intelligence Surveillance court, the FISA court.
THOMAS TAMM: It was on the 6th floor, and only one elevator went up there. And it was literally in a bank vault because they were worried about the Soviet Union, you know, overhearing what was going on.
NEWSCASTER: Good evening. President Nixon reportedly will announce his resignation tonight.
NARRATOR: The FISA court had been set up to act as a watchdog after those revelations during the Nixon administration that the NSA had been spying on Americans.
PATRICK RADDEN KEEFE, Author, Chatter: When that came out, you saw a period of reform like none other we’d seen, like nothing we’d seen before then, and frankly, nothing since.
NARRATOR: Under the reforms, the NSA could conduct surveillance inside the United States only if the FISA court issued a warrant.
PATRICK RADDEN KEEFE: You can turn your ears outward, but not inward. You can listen all you want abroad, but you really cannot do that to Americans unless you have a warrant.
NARRATOR: And inside the Department of Justice, it was Thomas Tamm’s job to prepare warrants for the FISA court.
THOMAS TAMM: The law specifically said that if you didn’t go through the court, you were committing a federal felony.
NARRATOR: But then, as Tamm began working on terrorism cases, he discovered something surprising, evidence of “the program.”
MICHAEL ISIKOFF: There are references to wiretaps and information that hadn’t come through FISA warrants. So the question is, Where did they come from? Where did the government get this information?
NARRATOR: Tamm learned that hardly anyone at the DOJ knew details about what was going on.
THOMAS TAMM: I asked a supervisor of mine if she knew what the program was about, and she told me that she just assumed that what we were doing was illegal, and she didn’t want to ask any questions.
NARRATOR: Tamm became concerned.
THOMAS TAMM: They were conducting electronic surveillance without getting warrants and using that information then to develop probable cause, and basically, not informing the court of the source of the information.
NARRATOR: Tamm and others at the DOJ, unaware of the secret presidential order, wondered if Attorney General Ashcroft was doing something illegal.
THOMAS TAMM: It just kind of ate away at me, and kind of came to a head when I ran into one of the deputies of the unit, who said that there was a chance that— for the first time ever, that a sitting attorney general would be indicted.
NARRATOR: Tamm says he tried to take his questions up the chain of command without success.
MICHAEL ISIKOFF: He was quite disturbed by that, was quite disturbed that he wasn’t getting answers to the questions he was asking.
NARRATOR: Eventually, Tamm decided to take a risky step. He headed up Pennsylvania Avenue to Congress for a secret meeting with a powerful Senate staffer.
THOMAS TAMM: I said, “Does Congress know what we’re doing with regard to this program?” And she said she couldn’t tell me. And I said, “Well, then I think, you know, maybe I will go to the press.” And she— I remember her last comment was, “You know, Tom, whistleblowers frequently don’t end up very well.” And I told her, yeah, I understood that.
NEWSCASTER: In Baghdad, a bomb last night set portions of—
NARRATOR: In the fall of 2003, the White House got involved in filling an Important vacancy at the Justice Department.
BARTON GELLMAN: The Justice Department needs a new head of the office of legal counsel, which is a very powerful position. Cheney and Addington get together and say, “Who should we pick?”
NARRATOR: David Addington had a candidate in mind for the job, Jack Goldsmith.
BARTON GELLMAN: Jack Goldsmith is impeccably credentialed, a member of the Federalist Society, well-known and liked in the conservative movement. David Addington calls Goldsmith in and interrogates him about a few of his lessor known positions, and “What would you think about this or that?” and he’s convinced Goldsmith, like he himself, is a true believer and is going to be making the right decisions.
NARRATOR: With Addington’s blessing, Goldsmith became the new head of the office of legal counsel, charged with reviewing the legality of the administration’s most secret operations.
JACK GOLDSMITH, Office of Legal Counsel, 2003-04: I was being briefed into a lot of programs, classified programs, counterterrorism programs. I was extraordinarily naive. I had a sense that this was an important job. I did not have a full sense of the nature of the issues or the pace.
NARRATOR: Before long, Goldsmith headed for David Addington’s office. It was time to learn about “the program.”
BARTON GELLMAN, Author, Angler: The Cheney Vice Presidency: Jack, like most of the others who are briefed on this, walks into Addington’s office, which he regards as a little bit peculiar— “What’s this doing in the vice president’s lawyer’s office?” Addington opens the safe and pulls it out, there’s the red cover, it says “Top Secret/SI/Comet/Stellarwind,” the cover name for this program.
NARRATOR: As he read the document, Goldsmith began to have grave doubts.
JACK GOLDSMITH: The program was an example of the administration going it alone, in secret, based on inadequate legal reasoning and flawed legal opinions.
NARRATOR: Goldsmith discovered that as part of the program, the government had been tracking data about the e-mails of tens of millions of Americans.
BARTON GELLMAN: He says, “You can’t justify the e-mail collection. It is, on its face, a clear violation of the 4th Amendment, and perhaps the 1st Amendment, as well.”
NARRATOR: Addington was furious that Goldsmith would raise questions about the program, and he let him know.
JACK GOLDSMITH: He was very tough in making his arguments. He was very sarcastic and aggressive against people with whom he disagreed, and dismissive oftentimes. And he acted with the implicit blessing of the vice president. So all of these things made him a very, very forceful presence.
ALBERTO GONZALES, White House Counsel, 2001-05: You know, David pushed. He pushed everybody. He pushed me. Even when I was the attorney general, he would push me. So that was just David’s nature, and I think Jack didn’t appreciate being pushed sometimes.
BARTON GELLMAN: He was daring Jack Goldsmith to say, “This is illegal and you’ve got to stop it.” He never believed that Goldsmith would do it.
PETER BAKER, The New York Times: Goldsmith tells him, “We’re going to pull back our endorsement of the legality of this program.” And Addington roars at him and says, “If you do that, the blood of 100,000 people killed in the next attack will be on your head.”
[www.pbs.org: Watch on line]
NARRATOR: For Cheney, Addington, Gonzales, Hayden and others, the personal stakes at this moment were extremely high.
BARTON GELLMAN: It was a felony to conduct this kind of surveillance in the United States. And everyone was relying on the shield that they were trying to create of having the president order it explicitly and have the attorney general sign off and say, “It’s lawful.” And as soon as the Justice Department starts to say, “We’re not so sure this is lawful,” there is a great deal of concern and anxiety.
NEWSCASTER: Five separate car bombs blew up in a span of 45 minutes—
NEWSCASTER: A bomb last night set portions of the old city—-
NARRATOR: At the Justice Department, they prepared for conflict with the White House. Goldsmith’s boss, Deputy Attorney General James Comey, delivered the news to John Ashcroft. Parts of the program appeared to be illegal.
PETER BAKER: They go to the attorney general, John Ashcroft. They say, “We don’t think this is legal. We think we need to get this changed, or we need to stop what’s going on because we don’t have a solid foundation to go on.”
NARRATOR: Ashcroft was supposed to sign a reauthorization of the entire program every 45 days, and for two-and-a-half years, he had. But now he balked.
BARTON GELLMAN: Ashcroft gives Comey his verbal assurance that he is not going to go along with this program and that he is going to demand changes, or he won’t sign.
NARRATOR: Then just hours later, Attorney General Ashcroft collapsed, suffering from severe pancreatitis. James Comey was now the acting attorney general.
BARTON GELLMAN: Comey notifies the White House formally that he’s not going to sign. And we’re now within 48 hours of expiration of this program.
NARRATOR: With the deadline looming inside the White House, Alberto Gonzales, chief of staff Andrew Card and David Addington headed to Attorney General Ashcroft’s hospital room.
ALBERTO GONZALES: We went to the West Wing, picked up David, who had the authorization. We get to the hospital, and I tell David to stay back because there was history between David and the attorney general and I didn’t want to aggravate the attorney general needlessly.
BARTON GELLMAN: Janet Ashcroft, the attorney general’s wife, is very alarmed. She calls up Ashcroft’s chief of staff, and says, “Oh, my God, they’re coming over.” Ashcroft’s chief of staff calls Comey, the deputy. Comey is in a car on his way home. He has the driver make an actual U-turn. They slapped the flasher and the siren on, and he heads over to that hospital as fast as he can go.
JACK GOLDSMITH: It was the evening, about 8:00 o’clock, and I got a call from the Justice Department command center. So I rushed to the hospital, double-parked, ran up the stairs.
NARRATOR: Goldsmith and Comey waited in Ashcroft’s room.
JACK GOLDSMITH: He had tubes going in and out of him. He looked ashen, and I actually thought he looked near death. I thought he looked just terrible. In walked Alberto Gonzales, the White House counsel, and Andrew Card, the president’s chief of staff.
ANDREW CARD, White House Chief of Staff, 2001-06: We get to the hospital, and General Ashcroft is laying in bed. And as soon as we got there, I said nothing other than, “Sorry you’re feeling bad.” And Judge Gonzales said, “We’ve brought the document. Here’s the document.”
JACK GOLDSMITH: Attorney General Ashcroft kind of lifted himself. He arose from the bed, lifted himself up and gave about a two or three-minute speech or talk addressed to Gonzales and Card, in which he basically— I can’t get into the details, but he showed enormous, unbelievable clarity about what the issues were and what was going on. And he explained why he also would not approve the program.
And he read them a bit of the riot act. And then he said— at the end of all this, he said, “In any event, I’m not the attorney general now. Jim Comey is,” because Jim Comey was the acting attorney general. And with that extraordinary performance— and it was just an amazing— one of the most amazing things I’ve ever seen in my life because he went from seeming, you know, near death to having this moment, this amazing moment of clarity.
And he just again receded into the bed, and I really worried at that point that he was going to expire. And I mean, it just— it looked like he gave it the last of his energy.
ALBERTO GONZALES: And so finally, when he repeats again that he’s no longer the attorney general and is finished talking, Andy and I just said, “Thank you. We’ll raise this with the deputy attorney general,” and we left.
JACK GOLDSMITH: It was an intense, unbelievable scene. And Gonzales and Card quickly left, and that was the end of it.
NARRATOR: In the wake of the hospital confrontation, at the White House, Cheney insisted the president should act on his own, reauthorize all of the program, even though the Justice Department said part of it was illegal.
BARTON GELLMAN: Cheney and David Addington draft a new order. And this time, it has one subtle difference. Instead of having a signature page for the attorney general, “I certify the lawfulness of this order,” there’s a new signature for the White House counsel, Alberto Gonzales, who does not have the same legal authority.
ALBERTO GONZALES: I satisfied myself that there was sufficient legal authority to move forward. I felt that the president was not a lawyer, and it was my job, if I felt comfortable that it was, in fact, lawful, to provide that signature. I did it because I wanted to protect the president. That’s why I signed that document.
NARRATOR: But the White House wondered. Would General Hayden go out on a legal limb and continue the program?
MICHAEL HAYDEN: David Addington calls me and says, “Are you willing to do this without the signature of the attorney general, with the signature of the White House counsel, Al Gonzales, and authorization from the president?” And I thought and I said yes.
NARRATOR: Hayden and Gonzales say their willingness was informed by something that happened just before the Addington call.
NEWSCASTER: In Madrid this morning, more than 190 people were killed and more than 1,400—
NEWSCASTER: —after at least 10 simultaneous bomb blasts—
NARRATOR: It was one of the worst terrorist attacks since September 11th.
MICHAEL HAYDEN: Given that starkness of the al Qaeda threat, given the ambiguity of the situation, I thought the correct operational, legal and ethical decision was, “All right, we’ll do this one more time on a somewhat different framework.”
[www.pbs.org: More from Gen. Hayden]
JAMES BAMFORD, Author, The Shadow Factory: So that was a point where he could have said, “I’m turning it off until we get a proper order from the Justice Department.” But he didn’t. He went along with Addington and Cheney.
NARRATOR: That afternoon, President Bush reauthorized the program. At the Justice Department, Jack Goldsmith prepared his resignation letter.
JACK GOLDSMITH: I had drafted my resignation letter and was prepared to resign, and I was sure I was going to resign that day. And it was inconceivable to me, based on what had happened the last two days, that I wouldn’t resign.
NARRATOR: Dozens of top DOJ officials threatened to join him, including FBI Director Mueller and even Acting Attorney General Comey.
COMEY LETTER: “And I would never be part of something that I believe to be fundamentally wrong. With a heavy heart and undiminished love of my country and my department, I resign as deputy attorney general of the United States, effective immediately. Sincerely yours, James B. Comey.”
BARTON GELLMAN: George Bush is on the edge of a cliff. His presidency is at stake. This was going to be something on the order of two dozen, nearly the entire political appointment list at the Justice Department, from the attorney general on down. And no president could survive that in an election year.
NARRATOR: The next morning, the president decided to have a private talk with Acting Attorney General Comey.
BARTON GELLMAN: After the national security briefing, Bush says to Comey, “Stay a minute. Come talk to me.” And Cheney starts to follow, and Bush says, “No, no, this is just the two of us.” And he says, “What’s going on here? How could you possibly do something of this importance at the very last minute?”
Comey suddenly realizes that the president had no idea what had been happening. The president thinks this just began yesterday. He doesn’t know it’s been going on for three months. And so, he says, “Mr. President, if that’s what you’ve been told, you have been very poorly served by your advisers.”
ANDREW CARD: The president certainly did not want a situation where the FBI director and the deputy attorney general would resign, so he was not too happy to learn that this had risen to a level of angst that it had risen to.
NARRATOR: The president then sent for FBI Director Mueller.
BARTON GELLMAN: Mueller’s waiting downstairs a level, outside the Situation Room. Some aide goes and says, “President wants to see you right now, get in there.” And Bush says to Mueller, “Go tell Jim Comey to fix this. I withdraw the order. You go make it right.”
NARRATOR: The warrantless e-mail data collection was shut down. The crisis was averted. But at the White House, they were determined to resume it.
RYAN LIZZA, The New Yorker: And so there— there’s sort of a literally, you know, sort of sifting through the FISA law. They’re sifting through the Patriot Act trying to find existing laws, existing authorities, you might call it loopholes, to justify these programs.
NARRATOR: General Hayden was sent to the secret FISA court to convince a judge to restart it.
MICHAEL HAYDEN: Could we get a court order to authorize this? And so we began a very aggressive program with the chief judge of the FISA court at that time, Judge Kollar-Kotelly, to take that part of the program that had been stopped and present it to her to see if we could get an order to allow that program to go forward.
RYAN LIZZA: Hayden personally meets with Judge Kotelly of the FISA court on two Saturdays to make the pitch, to explain how they’re going to do this. And Kotelly eventually rules that this is legal, that the NSA can indeed collect all of the Internet metadata going to and from the United States. And they use this authority — that previously was used to trace numbers going to and from a single telephone — for everybody.
NARRATOR: Kollar-Kotelly’s secret ruling relied on a controversial interpretation of a 25-year-old Supreme Court case.
BARTON GELLMAN: This was, frankly, a huge stretch. The idea that you could use this to justify the collection of trillions of pieces of Internet metadata surprised a lot of people when it came out in the Snowden archives. But that’s where they went.
NARRATOR: The program was back on line, bigger than ever.
MICHAEL HAYDEN: That part of the program, over which there was a grand dispute in the spring of 2004, was resumed in large measure under a different legal theory by the fall of 2004.
NEWSCASTER: —Bush on day two of his tour to defend the Patriot Act, this time in Buffalo, New York.
NEWSCASTER: In Buffalo, he continued his tour for an extension of an anti-terror law—
NARRATOR: That same year, the president hit the campaign trail, publicly arguing there was no warrantless surveillance program.
April 20, 2004
Pres. GEORGE W. BUSH: Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.
ERIC LICHTBLAU, The New York Times: Bush got up there several times and said, you know, “When you hear about us wiretapping, that means we’re getting a court warrant.” Well, we knew that wasn’t true. You know, he was leaving out this whole other side of the equation in terms of the NSA operation.
Pres. GEORGE W. BUSH: It’s important for our fellow citizens to understand constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland because we value the Constitution.
NARRATOR: As the president insisted the government always secured warrants, in Washington, that Department of Justice attorney, Thomas Tamm, knew otherwise.
THOMAS TAMM, Attorney, Dept. of Justice, 1998-06: I agonized for— probably for months. I was upset, I would say, with what I thought was being done to the way our government was supposed to work.
NARRATOR: Tamm had not been aware that Jack Goldsmith and the top echelon at the department of Justice had nearly resigned. But his concerns about the program had continued to grow.
MICHAEL ISIKOFF, Journalist: He agonized about this, spent a lot of sleepless nights, wondered about what he should do.
THOMAS TAMM: It just— it just kind of ate away at me. It was pretty clear, to me, at least, that I didn’t want to keep participating in whatever was going on.
NARRATOR: Tamm decided to take a very big step, one dramatically out of character for the son and nephew of high-ranking FBI agents. One day, on his lunch break, he slipped into a Washington subway station. He used a pay phone to make an anonymous call to The New York Times.
MICHAEL ISIKOFF: He said he was sweating, nervous, looking around. He felt, he said, like a spy when he made that phone call. But he did.
THOMAS TAMM: I certainly was conscious of the fact that if I were going to be found out — and I did think I would be found out, actually, eventually — that there would be serious ramifications. But I just thought it was important.
[www.pbs.org: More on Tamm’s decision]
NARRATOR: Tamm says the phone call was to a New York Times reporter.
THOMAS TAMM: I had read articles by Eric Lichtblau with The New York Times. I knew he was covering the Department of Justice.
NARRATOR: Lichtblau will not confirm that Tamm was a source, but acknowledges receiving a tip from an anonymous source.
ERIC LICHTBLAU: There was a suggestion from one of the early sources that whatever was going on involving a super-sensitive spy program was causing such tumult and debate within the Justice Department that there’s talk of Ashcroft being indicted. You know, that certainly gets your attention.
NARRATOR: Tamm says he and Lichtblau had a series of clandestine conversations around Washington.
THOMAS TAMM: I eventually told him my suspicions that very, very limited people knew what it was all about, and that really, some very experienced, high-level lawyers thought what we were— what the government was doing was illegal.
NARRATOR: Having leaked, Tamm disappeared back into the bureaucracy at the Justice Department. At The Times, Eric Lichtblau knew that another reporter, James Risen, had also been hearing about the program.
JAMES RISEN, The New York Times: We heard, basically, that the president had authorized a warrantless wiretapping program. It was believed by the people we were talking to to be in violation of the— of FISA and of the Constitution.
ERIC LICHTBLAU: They were doing things well outside their lane, without the knowledge of most of the court, without the knowledge of most members of Congress, really, on the White House’s own authority. That was really what, in our mind, made the story.
NARRATOR: Eager to get General Hayden on the record, James Risen called the NSA.
JAMES RISEN: I told the press person that I needed to talk to Hayden immediately, and for a very sensitive matter. And I didn’t tell them exactly what it was. But to my surprise, she got him on the phone immediately.
ERIC LICHTBLAU: I remember I was sitting next to him, and I did not know he was going to do that. It was a bit shocking, not only that he was calling him, but also that he got Hayden on the line.
JAMES RISEN: I read him, like, two paragraphs of the draft of the story.
RISEN’S ARTICLE: “Months after the September 11th attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others”—
JAMES RISEN: And you could hear, like, a sharp intake of breath, like, “Oh!” You know, it was almost like he was— he didn’t want to say it, but he was, like, “I can’t believe you got that story.”
MICHAEL HAYDEN, NSA Director, 1999-05: I think this is a very bad thing, that— you know, there’s a reason we keep intelligence sources and methods secret. It’s the same reason journalists try to keep their sources and methods secret. You know, you can’t survive unless you keep them secret.
JAMES RISEN: I’d caught him off guard, and he had started to confirm it, and then realized what he was doing and hung up.
NARRATOR: Hayden sounded the alarm, The New York Times was preparing to expose the existence of the program in the middle of an election year.
ALBERTO GONZALES, White House Counsel, 2001-05: We were worried that this would compromise a very important, very significant intelligence activity. There was debate within the administration about what to do. Should we try to get an injunction?
NARRATOR: The White House demanded a series of meetings with The Times. The first was inside the Eisenhower Executive Office Building. Acting CIA director John McLaughlin ran the meeting.
PHILIP TAUBMAN, D.C. Bureau Chief, The New York Times, 2003-07: One thing I remember about his presentation was that he never actually confirmed that they had such a program.
JAMES RISEN: They kept talking in these hypotheticals, like saying, “If we were doing this, this would be very important to the government.”
PHIL TAUBMAN: The language he used, which was kind of Orwellian in a way, was, “If the United States had such a program, we would request that The New York Times not publish any information about it.”
JAMES RISEN: And then I started taking notes, and they tried to stop me from taking notes. It was a very contentious meeting that only convinced me further that the story was right and that they were trying to stop it.
NARRATOR: In meeting after meeting, the government made the argument the program was both effective and legal.
ERIC LICHTBLAU: One of the strongest selling points that they made, which to my mind was probably the most disingenuous, was the idea that this had all been legally reviewed, this was all perfectly legal, perfectly constitutional. Everyone was on board. There was no doubt about its legality.
NARRATOR: Back in The Times offices, the reporters argued the White House was misleading them. But the editors were not convinced the story should run.
ERIC LICHTBLAU: There were intense discussions, and it got emotional on all sides.
JAMES RISEN: We argued that this was really important, that our sources were telling us it was illegal or unconstitutional, that there was clearly people in the government who disagreed with what the government— what officials were saying to the editors.
NARRATOR: In the fall of 2004, the administration invited The Times’s top editors to a closed-door meeting. Executive editor Bill Keller met with the president’s top advisers — Condoleezza Rice, General Hayden, Alberto Gonzales and others — who insisted to Keller that revealing the existence of the program would endanger national security.
BILL KELLER, Exec. Editor, The New York Times, 2003-11: I had a consensus of everybody that we had contact with in the administration that this would be an extremely dangerous thing to do. These were, you know, serious people, a consensus across the board of those who talked to us that it was going to be dangerous, a level of stridency that was quite impressive, and you know, after much discussion, decided that we weren’t ready to go with it.
NARRATOR: Keller spiked the story. The White House had prevailed. The program would remain a well-kept secret.
NEWSCASTER: The president has ordered a major shake-up of America’s spy operations—
NEWSCASTER: The nuts and bolts of intelligence will fall to Lieutenant General Michael Hayden, who now heads up the once super-secret—
NARRATOR: General Hayden was promoted by the White House to help oversee all intelligence operations. He was replaced by a new general, Keith Alexander. The change gave Tom Drake another chance to voice his concerns about the program. He wrote General Alexander a classified letter.
THOMAS DRAKE, NSA Senior Executive, 2001-08: Within the system, my last official act, for all intents and purposes, was to write that formal letter to Alexander.
NARRATOR: The letter said the NSA’s intelligence-gathering activities were out of control and needed to be reined in.
JANE MAYER, The New Yorker: This is a crusade for him. Being Drake, someone who’s got a somewhat obsessive personality, he keeps trying to get the word out.
NARRATOR: But General Alexander was no more responsive than Hayden had been. And by writing directly to the general, Drake had broken bureaucratic protocol. His days were numbered.
THOMAS DRAKE: They actually reorganized my job right out from under me, and I literally was left with nothing. I had an office, I had a flag, because I was a senior executive, but nothing else. No programs, no people, no team, no nothing.
NARRATOR: Drake had formed friendships with the ThinThread group— Binney, Wiebe, Loomis and Congress’s Diane Roark. Now they began to seriously consider what they called “the nuclear option,” going to the press.
J. KIRK WIEBE, NSA senior analyst, 1975-01: And I can remember throwing the question out there one evening. I said, “What do we do? Tom’s not getting anywhere.” And so we would say, “Is it time to go to the press, invoke the nuclear option,” which is going to the press? And we were all afraid to do it.
WILLIAM BINNEY, NSA Technical Director, 1965-01: We were still traditional kind of employees of the government and wanted to stay inside the government to try to get the government to change its ways, to make it— you know, to right itself, as opposed to having to force it by going to the fourth estate, the public.
THOMAS DRAKE: The third rail option of going to the press was fraught with enormous peril. At a minimum, you would no doubt be fired. Or worse.
NARRATOR: It had been nearly one year since The New York Times had refused to publish the investigation into the NSA. During that year, the program had grown dramatically. Terabytes, huge amounts of information about Americans’ telephone calls and e-mails, had been clandestinely captured.
Finally, reporter James Risen from The New York Times had had enough. He decided to strike out on his own.
JAMES RISEN: The story was dead now, twice dead, and I thought the only way to ever get this story out was to put it in a book.
NARRATOR: Risen had a surprise for Eric Lichtblau. He invited him to drive over to his house to read a draft chapter of the book, the story The New York Times had refused to print.
ERIC LICHTBLAU: The chapter was just called “The Program.” And in it, he basically made known the existence of this program and the fact that the administration had gotten the paper to spike the story.
JAMES RISEN: I said, “I want to make sure it’s OK with you.” And he said, “The only thing I ask you is, you know, you put my name in there, too.”
NARRATOR: It did not take long for the editors at The New York Times to get word of what Risen was planning.
PHILIP TAUBMAN, D.C. Bureau Chief, The New York Times, 2003-07: I began to hear through the grapevine that he might include the NSA story in the book. So that led to a series of, you know, very awkward conversations with Jim.
JAMES RISEN: The editors were furious at me. They thought I was being insubordinate.
ERIC LICHTBLAU: He had a gun to their head. They’re really being forced to reconsider. The paper’s going to look pretty— pretty bad.
JAMES RISEN: That led to this massive game of chicken between me, my book— me and my book and The New York Times over the next few months.
NARRATOR: Inside The Times, the editor who had killed the story 12 months earlier now faced a hard choice.
BILL KELLER: Because we had to either decide, “We’re still not ready to run the story,” or, “The situation has changed sufficiently that we are ready to run the story,” in which case, we’d better get the story, you know, in the best possible shape and let the administration know.
NARRATOR: On a frigid December evening, editors Bill Keller, Phil Taubman and New York Times publisher Arthur Sulzberger were summoned to the White House.
MICHAEL HAYDEN: It was indeed a dark and stormy night. I remember. It was dark and it was stormy. And we were in the Oval. Mr. Sulzberger began to speak, and the president said, “I’m going to go first. I want to talk to you about this program. I want to talk to you about why this is important, why we think it saves lives, and why it should not be made public.’
NARRATOR: The president turned the meeting over to General Hayden for one of his famous briefings.
MICHAEL HAYDEN: It’s hard to brief in the Oval. You know, you can’t— no visual aids, hard to roll out something in front of somebody. So I gave them the best explanation of the program I could, but I did bring up specific examples.
PETER BAKER, Author, Days of Fire: The example he gives them is a plot in which a radical is planning to bring down the Brooklyn Bridge, apparently with a device similar to a blowtorch. And it actually kind of makes The Times editors kind of scratch their heads because they think this is kind of surprising. That somebody could sit there with a blowtorch or something like that and bring down the Brooklyn Bridge, without anybody noticing him and stopping him first, seemed absurd to them.
BILL KELLER: I think Arthur believes that the president may have cracked a smile when the bringing down the Brooklyn Bridge item came up. But maybe that’s just a wishful memory.
NARRATOR: The president then played his trump card, threatening that The New York Times would be responsible for the next attack.
BILL KELLER: He said, you know, “Listen, if you guys publish this article and there’s another 9/11, we’re going to be called before Congress to explain how we failed to prevent it. And you should be in the chair beside us explaining because you’ll be complicit in allowing damage to our country.” He was saying, in effect, “You, Arthur Sulzberger, will have blood on your hands if there’s another attack that could’ve been prevented by this program.” You know, I think anybody would feel goosebumps.
NEWSCASTER: The New York Times broke the story about the National Security Agency—
NARRATOR: Nevertheless, The Times decided to publish the story, revealing the existence of the program.
NEWSCASTER: For nearly four years now, the NSA has been secretly spying on its own citizens—
JANE MAYER, The New Yorker: The New York Times story in December 2005 just shocked the world.
NEWSCASTER: —extent of unchecked domestic surveillance is far greater than previously reported.
JANE MAYER: It is the definition in most people’s minds of illegal government activity.
[www.pbs.org: Share your thoughts]
NEWSCASTER: —with a bombshell of a story in The New York Times today that the NSA—
NARRATOR: They were in crisis mode at the White House. All eyes were on President Bush.
MICHAEL HAYDEN: We call it the big pause, OK? When stuff like this goes public, what’s the big guy going to do? Is he going to man up and support you, or suddenly get reflective on you?
PETER BAKER: And for once, the president actually decides he’s going to come out and address it directly. He goes on the offensive to try to push back against critics who said he went too far.
NARRATOR: It would be a first, an admission the program existed.
Pres. GEORGE W. BUSH: This is a highly classified program that is crucial to our national security. Its purpose is to detect and prevent terrorist attacks against the United States, our friends and allies.
JANE MAYER: The president comes out and minimizes what he describes as “the program,” and he gives a very truncated description of what they’re doing that sounds, you know, I think, probably not too worrisome to most Americans.
Pres. GEORGE W. BUSH: I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.
NARRATOR: It was the least controversial and smallest element of the program. There was no reference to the massive gathering of domestic communications data.
BARTON GELLMAN, The Washington Post/FRONTLINE: His characterization of the facts was simply wrong. And it was wrong from the beginning. The program wasn’t to surveil known suspects, known conspirators. You could easily get a warrant for that. The program was to sift big data, was to trawl through enormous volumes, literally trillions of telephone calls, trillions of e-mails, and to look for unknown conspirators.
NARRATOR: Once again, it would be left to General Hayden to brief the press. He, too, minimized the scale of the program.
MICHAEL HAYDEN: This is targeted. This is focused. This is about al Qaeda. One end of any call targeted under this program is always outside the United States.
DIANE ROARK, Staff, House Intel. Cmte., 1985-02: When they asked questions about how widespread the program was, he confined it to this little part of the program that had leaked, and did not address all the other parts that were far worse that had not leaked.
NARRATOR: There was no mention that the NSA was tracking telephone calls and e-mails inside the United States. And Hayden even dismissed the idea that there had been any internal dissent about the program.
MICHAEL HAYDEN: Not a single employee of the National Security Agency has addressed a concern about this program to the NSA IG. I should also add that no member of the NSA workforce who has been asked to be included in this program has responded to that request with anything except enthusiasm.
DIANE ROARK: General Hayden’s press conference introduced many of the tactics that the administration has used to deflect questioning and also to mislead the public. And I was amazed at what he was saying because it was not truthful. It was misleading. And that was the beginning of the spinning and the lies.
NEWSCASTER: President Bush heads to the NSA as part of his week-long blitz to defend his controversial wire-tapping program.
NEWSCASTER: The White House strategy? Fight back on every point.
NEWSCASTER: Yesterday, it was the president. Today, the attorney general speaks out on the matter.
NEWSCASTER: The president will visit one of the nation’s most secret buildings today—
NARRATOR: At the National Security Agency, Thomas Drake was watching the White House’s reaction carefully.
JANE MAYER: Drake watches what top levels of the U.S. government’s saying about this program, and he thinks they’re lying.
THOMAS DRAKE: I realized that they were lying, that they were desperate to protect the domestic surveillance program.
JANE MAYER: He knows it’s much more than what they’re describing. And— and— this makes him mad.
THOMAS DRAKE: The far larger program was the dragnet surveillance, the vast bulk copy of millions and millions of phone records, e-mail records, Internet usage, and financial transactional and credit card information.
NARRATOR: Drake had been complaining internally about the program for more than four years. Now he said he had run out of options.
THOMAS DRAKE: All the internal proper channels had been exhausted. The one final choice was to actually touch the third rail and go to the press.
NARRATOR: Drake decided to act on his own, without the ThinThread team. He’d reach out to a newspaper reporter. Siobhan Gorman worked for The Baltimore Sun.
JANE MAYER: He just reaches out to her in a way that he thinks is secret, using all kinds of protected Hushmail, to tell her he wants to talk to her and might have documents to share with her.
NARRATOR: Drake said that he would only provide unclassified material.
JANE MAYER: It’s a pretty classic whistleblower kind of move that he makes, and he’s careful, he thinks, not to violate any kind of national security laws in reaching out to her.
NARRATOR: Gorman will not acknowledge that Drake was her source, but she says she knows why she received the leaks.
SIOBHAN GORMAN, The Baltimore Sun, 2005-07: There were a number of people at NSA that were just very unhappy, and I think that the revelation of warrantless surveillance probably did loosen up some concerns that some people inside NSA might have had.
NARRATOR: At first, Drake remained completely anonymous, communicating entirely by encrypted e-mail.
THOMAS DRAKE: She had no idea who I was. I ultimately was referred to as just a senior official. It was sort of an agreement as to how she would couch who I was in her reporting. But I was a deep— I was a deep source.
NEWSCASTER: The Baltimore Sun reports today that the NSA rejected—
THOMAS DRAKE: And so I provided her with unclassified information about the secret surveillance program.
NARRATOR: Gorman would write a series of lengthy stories, a deep investigation into the NSA, ThinThread, and the warrantless surveillance of millions of Americans.
NEWSCASTER: Gorman is the reporter. It’s their off lead today. NSA—
NARRATOR: But Drake wasn’t the only leaker. Other stories broke.
NEWSCASTER: —eavesdropping without warrants—
NEWSCASTER: —high-ranking officers in the Justice Department—
NARRATOR: The New York Times revealed the story of that standoff in Attorney General Ashcroft’s hospital room, and a leak to USA Today revealed the government had been collecting the phone records of tens of millions of Americans.
NEWSCASTER: —had the cooperation of major American phone companies—
NEWSCASTER: —being described as the largest database ever assembled—
NARRATOR: Inside the White House, Vice President Cheney was furious. He was determined to stop the leakers.
ANDREW CARD, White House Chief of Staff, 2001-06: If you’ve known Dick Cheney— I’ve known him for a long time— he was always upset about leakers. So it wasn’t— this was not out of character. It fit within the character that he was, whether he was secretary of defense or chief of staff to the president.
NARRATOR: The investigation would be run by the FBI, a massive manhunt for the leakers lead by the new attorney general, Alberto Gonzales.
ALBERTO GONZALES: They had broke the law. They leaked classified information. That’s against the law. The job of the Department of Justice is to prosecute those who break the law.
NARRATOR: The agents began their investigation across the street at the Department of Justice itself, calling everyone who had worked with the FISA court, including Thomas Tamm.
MICHAEL ISIKOFF: And he starts getting phone calls from this FBI agent, Jason Lawless, at work. He’s ducking the calls.
NARRATOR: Terrified, Tamm refused to return the calls.
THOMAS TAMM: I was preoccupied with what was going to happen to me and when— you know, when it was going to happen, what was going to happen, if it was going to happen.
MICHAEL ISIKOFF: And finally, Lawless gets him on the phone and says, “Hey, this’ll only take a few minutes.”
NARRATOR: But Tamm panicked, and quickly sealed his fate.
THOMAS TAMM: I told him that I chose not to talk to him. I chose to exercise my rights under the Constitution to not be a witness against myself. And of course, I knew that, you know, that immediately would send up red flags and that I would immediately be their primary suspect.
NARRATOR: Thomas Tamm resigned from the Justice Department. He began to wait for a federal indictment.
NEWSCASTER: —a story that has now triggered a Justice Department investigation into who leaked—
NARRATOR: In Cambridge, Massachusetts, Jack Goldsmith had settled in as a professor at Harvard law school. One morning, he was summoned to a meeting in Harvard Square with two FBI agents.
JACK GOLDSMITH, Office of Legal Counsel, 2003-04: As we were sitting down at the table over coffee, one of the agents sort of sheepishly handed me a manila envelope. And he said that it was a subpoena to be— for a grand jury investigation into the leak to The New York Times. And he was very embarrassed and sheepish about this.
NARRATOR: The subpoena was issued under the leadership of Attorney General Alberto Gonzales.
JACK GOLDSMITH: And it seemed particularly ironic that the Justice Department was coming after me for illegal actions, or allegedly illegal actions, or possibly illegal actions, taken in connection with this program.
NARRATOR: By the summer of 2007, it had been more than 18 months since the FBI had begun its investigation. They had little to show for it. They decided to up the ante. They would conduct a series of early morning raids on the houses of their primary suspects.
JANE MAYER: At 9:00 o’clock Eastern Standard Time, the FBI, with guns drawn, raids the homes of Binney and Wiebe, and out on the West Coast, they raid the home of Diane Roark, waking her up.
DIANE ROARK, Staff, House Intel. Cmte., 1985-02: It was quite shocking. In fact, they went through the whole house, and went through every book, every paper, every drawer, turned the mattress over. You know, it was— it was quite shocking.
J. KIRK WIEBE, NSA Senior Analyst, 1975-01: It’s 9:00 o’clock in the morning, and I see these blue uniforms with gold “FBI” on the back, people coming across left to right, and I said— well, it sent a chill through me immediately.
WILLIAM BINNEY, NSA Technical Director, 1965-01: Well, the first I knew the FBI was in my house was the guy pointing a gun at me when I was coming out of the shower. They took my computer, all the electronic hardware, discs and things that go with that, any kind of electronic storage device, and they also took some of my magazines, technical magazines, and papers and things like that.
NARRATOR: And then they hit one more, Ed Loomis.
EDWARD LOOMIS, NSA Cryptologist, 1964-01: My life was in shambles at that point. I— my wife was hysterical. She couldn’t believe what had just occurred. I couldn’t believe what just occurred. And I had no insight into why it had.
J. KIRK WIEBE: You know, this button is NSA’s second highest award. And I wonder what it was that I did personally so wrong that I deserve this kind of treatment.
ED LOOMIS: Here I am, an Eagle Scout, a retired Scoutmaster, and a devout patriot, and my patriotism is being questioned by the government that I’d served for 43 years. I just couldn’t— it just didn’t make sense to me.
J. KIRK WIEBE: You feel pretty low. Your self-esteem takes a big hit. There’s discord in the family because kids, family, wife may ask you, “Well, what did you do to bring this upon the house?”
ED LOOMIS: It tore me up. It— I was— I became a recluse, pretty much. I cut off virtually all social contact with friends. It was— it was rough. Very rough.
J. KIRK WIEBE: Ed probably took it worst in terms of cost to family and self, physically, mentally, because Ed went into the shadows. He became a recluse, quiet. He lost his wife.
ED LOOMIS: It’s— it’s still eating at me. But I’ve— I’ve told my family. I’ve told my— I told my father before he passed away. I know I’ve done nothing wrong.
NARRATOR: The FBI considered them “persons of interest” for leaking to The New York Times, but they all insisted they hadn’t, and New York Times reporter James Risen agrees.
JAMES RISEN: I didn’t know any of them. And I just felt badly that they were getting caught up in something that was completely unrelated. I knew that couldn’t be true, that it was just collateral damage.
NARRATOR: Tom Drake’s home was not raided by the FBI that day, but Drake had the feeling that he was next.
JANE MAYER: Almost six months goes by, and Drake still hasn’t been raided. But then on the morning of November 28, 2007—
THOMAS DRAKE: I’m seeing these cars pull up as I look out the window. It’s just after 7:00 AM in the morning. And there’s a dozen FBI agents. And my heart’s up in my throat because I realize it’s now me.
NARRATOR: The FBI’s search warrant said that they were looking for evidence that Drake was The New York Times leaker.
JANE MAYER: Drake being Drake, sits down at his kitchen table with the FBI agents, without a lawyer present, and spends the entire day trying to convince them that the real culprits are the people at the NSA who have run this illegal program.
THOMAS DRAKE: So I told them everything I could, but they didn’t want to hear about that. They wanted to hear about The New York Times and sources.
NARRATOR: The FBI carted away Drake’s computers and boxes of his papers. Drake waited.
JANE MAYER: A few months later, in April 2008, Drake gets a summons to go meet with somebody who is described as “somebody very important.”
NARRATOR: The meeting was with federal prosecutor Steven Tyrrell.
JANE MAYER: When Drake sits down, Tyrrell says to him, “Mr. Drake, you are screwed.”
NARRATOR: Tyrrell had no hard evidence Drake ever spoke to The New York Times or that he had given any classified material to The Baltimore Sun. Nevertheless, Tyrrell said the FBI had discovered classified documents on Drake’s computer and in his basement, a felony.
THOMAS DRAKE: He proceeded to tell me, “How would you like to spend the rest of your life in prison, Mr. Drake? Unless you cooperate with our investigation, we have more than enough information to put you away for a long, long time. You better start talking.”
JESSELYN RADACK, Drake’s Attorney: And they talked numbers— you know, 478 months, 35 years. The government said he would have the blood of soldiers on his hands for what he did.
NARRATOR: Tyrrell wanted Drake to confess and admit that he was the center of a conspiracy involving Roark, Binney and the others.
THOMAS DRAKE: I was not going to plead out. And he was all ticked off and he says, “Well, we’ll just have to go with what we’ve got.”
NARRATOR: Drake and the others faced decades in federal prison and at least tens of thousands of dollars in legal bills. Desperate, they came to believe they had only one chance. As it happened, 2008 was a presidential election year, and there was one candidate who was promising a change.
Sen. BARACK OBAMA (D-IL), Presidential Candidate: Are you fired up? Ready to go! Fired up! Ready to go!
No more secrecy. That’s a commitment that I make to you as president!
PETER BAKER, The New York Times: He is promising to be the most transparent administration in history.
Sen. BARACK OBAMA: No more secrecy!
PETER BAKER: He believes that there’s been too much secrecy.
PATRICK RADDEN KEEFE, Author, Chatter: He made a real point of owning these kinds of arguments, both as a senator and then on the campaign trail.
Sen. BARACK OBAMA: It’s time for us to change America! And that’s why I’m running for president of the United States!
NARRATOR: Barack Obama even embraced the importance of whistleblowers.
RYAN LIZZA, The New Yorker: Obama, throughout his history, is a champion of whistleblowers, arguing that they’re the folks who help make government better and reveal conduct that, if not is illegal, is questionable.
THOMAS TAMM, Attorney, Dept. of Justice, 1998-06: I certainly had a lot of hope and I had a lot of hope for hope and change. But I actually thought that somebody might say, “You know, you actually did the right thing.’
NARRATOR: And when it came to the secrecy surrounding the creation of “the program” Obama was forceful.
Sen. BARACK OBAMA: I will provide our intelligence and law enforcement agencies with the tools they need to track and take out the terrorists without undermining our Constitution and our freedom. That means no more illegal wiretapping of American citizens.
PETER BAKER: It’s not a calibrated statement. This is a political statement. This is, in his words, a surveillance state run amok.
Sen. BARACK OBAMA: No more ignoring the law when it is inconvenient. That is not who we are. That’s not what is necessary to defeat the terrorists.
RYAN LIZZA: It was like he was back at the University of Chicago as a constitutional scholar. You know, he sounded like an ACLU lawyer.
NARRATOR: At the White House, in the waning months of the Bush administration, they were determined to find a way to make the program permanent.
ERIC LICHTBLAU, Author, Bush’s Law: The debate shifted pretty quickly to Congress in terms of debating whether or not the administration should get the power to do what they were doing.
NARRATOR: The president decided to try to convince Congress to enshrine the program into law.
PETER BAKER: For President Bush, it’s really a significant reversal. He’s decided he needs Congress to back up what he’s done. He, in effect, is abandoning his claim that he has the power under Article 2 of the Constitution to do this without Congress.
NARRATOR: The administration proposed to amend the FISA law and insisted it was reform. But insiders knew it granted the NSA unprecedented power.
MICHAEL HAYDEN: The FISA Amendment Act of 2008 actually allows some of the things we were doing under the president’s authority only against al Qaeda, it allows them for all legitimate foreign intelligence purposes. So in a sense, the FISA Amendment Act not only validates the terrorist surveillance program, it expands it.
NARRATOR: At the United States Congress, the administration secretly made the case for the bill at closed hearings of the Intelligence Committees.
RICHARD CLARKE, Obama Campaign Adviser: You had to read it very, very closely to understand what they were doing. And I don’t think people knew what, actually, the intent of that was. The intent of that was to make legal all of the programs that the attorney general, the FBI director had said they had a problem with.
NARRATOR: Publicly, the president would press lawmakers with a familiar warning— Pass this law or Americans could die.
Pres. GEORGE W. BUSH: Without this law, our ability to prevent new attacks will be weakened and it will become harder for us to uncover terrorist plots. We must not allow this to happen.
NARRATOR: Candidate Barack Obama now faced a choice. Would he vote against the president’s bill?
BEN RHODES, Obama Campaign Speech Writer: I remember when the bill came forward, there was some discussion as to whether or not he would support it.
NEWSCASTER: The Senate is expected to vote on a controversial measure—
RYAN LIZZA: He was thinking ahead to the general election, and how he was a young senator with not a lot of national security experience, and how he needed to be seen as being tough on these issues.
NARRATOR: In private, a tougher, more determined Obama was emerging.
RICHARD CLARKE: I remember the first conversation I ever had with him during the campaign. I said, “Look, when you become president, you have to kill people. And are you willing to pull the trigger? Are you willing to do that side of the job?” And he got very silent and looked at me in a very steely kind of way and said, “I know that and I can do that.”
NEWSCASTER: The U.S. Senate returning, a final vote on the FISA bill, setting new rules for electronic surveillance—
NARRATOR: And now Obama had a chance to enhance his national security credentials.
NEWSCASTER: —give the government new powers to eavesdrop on both domestic and international communications, and could also—
PETER BAKER: For all of his criticism in the past, for all of his background as a constitutional lawyer and a civil libertarian, he chooses to accept the rather expansive law. And he votes for it.
HOUSE CLERK: Mr. Obama, aye.
NEWSCASTER: Senator Obama getting a lot of heat for this vote, much of it from his own supporters.
NEWSCASTER: Senator Barack Obama voted for the surveillance bill, despite his opposition to it in the past.
NEWSCASTER: It’s off to work for President Obama. It’s a busy first day.
NEWSCASTER: —takes over two wars, a staggering economy and a soaring federal budget—
NARRATOR: Six months later, Barack Obama was the new president and the commander-in-chief.
NEWSCASTER: He’s wasting no time. He’s taking on national security right from the start.
NEWSCASTER: —meeting with the Joint Chiefs of staff and other military advisers.
[www.pbs.org: Obama’s changing positions]
RYAN LIZZA: The first time that Barack Obama ever learns about the full scale of this program is an early briefing in the Situation Room about all of the data that the NSA is collecting in these domestic surveillance programs.
MATTHEW OLSEN, Dir., Nat’l Counterterrorism Center: The point of the briefing was to provide the president and the new national security team at the White House with an overview of how these programs worked, what the value of the programs was, the legal structures that supported the program, what the authority was.
NARRATOR: He was told about the trillions of phone calls, e-mails and Internet data that had been secretly gathered.
MATTHEW OLSEN: As we talked about these programs, the way they were used, in particular the value of the collection of content, an extraordinarily vital tool, that the idea was, “All right, this is a really important program. We need to maintain it.”
NARRATOR: The president’s closest advisers insisted the program was necessary.
BEN RHODES, Obama Dep. Nat’l Security Adviser: There was a very strong view in the intelligence community that this was an important program, that it did fill an important gap.
NARRATOR: The new president faced a decision, whether to dramatically restrict “the program.”
MATTHEW OLSEN: I think that the president approached this with the degree of seriousness that you would hope and expect from the president of the United States.
RICHARD CLARKE: When you get into office, when you’re the man, when you’re in the White House, you don’t want to give up any tools that you inherit. You don’t want to give up anything that might get you that one fact that will stop an attack.
NARRATOR: He made his decision. The program would continue.
PETER BAKER: He had a chance to say, “That’s too far. Let’s not sweep in quite so many people who don’t have anything to do with terrorism as part of this broad sweep.” And he chose to keep the programs largely intact.
BARTON GELLMAN, The Washington Post/FRONTLINE: I’m not aware of any case in which Obama pushed back hard and said, “You can’t do that.”
NARRATOR: Convinced the program was effective and necessary, Obama would now own it. At the NSA, they were now spending more than $10 billion a year on capturing communications of people around the world.
[www.pbs.org: Share your thoughts]
BARTON GELLMAN: The NSA was on the verge of what it came to call the golden age of electronic surveillance because there was so much more communication, so much more data, so much better computer capacity to process it, and it was there for the taking.
NARRATOR: To run the operations, the NSA relied on a number of private contractors, companies that could provide highly skilled computer programmers and engineers.
EWEN MacASKILL, The Guardian: The NSA, the CIA and other intelligence services suddenly realized that they needed people with those kind of skills.
NARRATOR: Twenty-five-year-old Edward Snowden was one of them. A high school dropout, Snowden had grown up just 20 minutes from the NSA.
GLENN GREENWALD, The Guardian, 2012-13: He grew up in the community where lots of people who were in the military and the intelligence community lived. His father was in the Coast Guard for 30 years.
EWEN MacASKILL: If you’ve been to a Ron Paul rally, you’ve seen lots of people who look exactly like Edward Snowden— you know, young, clean-cut, student, you know, passionate, passionate about the Constitution.
NARRATOR: Snowden had enlisted in the Army, but left after breaking both of his legs in training.
BARTON GELLMAN: And he had the reaction after 9/11 that a lot of patriotic young Americans had, which is, “I’d like to do my part.” And that brought him to the NSA and the CIA and the worlds of secret intelligence.
NARRATOR: By 2009, Snowden was working as an NSA contractor in Japan. The job provided him extensive access to the details of NSA operations.
GLENN GREENWALD: He really began to understand the true scope of how much the NSA had gotten its hands into the backbone of the Internet.
NARRATOR: The more Snowden saw, the more disturbed he became.
BARTON GELLMAN: It was a gradual accumulation of evidence and of observations that led him to think, “Something’s going wrong here. The balance is out of whack. The surveillance of ordinary people is far greater than I would have imagined and far greater than the American public has been able to debate.”
NARRATOR: One of the key documents Snowden discovered, a classified inspector general report detailing the history of the program.
RYAN LIZZA: It tells the entire secret history of the program. It talks about Addington and Hayden writing the authorization for the program.
IG REPORT: “According to General Hayden, the vice president’s counsel, David Addington, drafted the first authorization.”
RYAN LIZZA: It talks about the rebellion at the Justice Department.
IG REPORT: “Consequently, the White House counsel, rather than the attorney general, signed the 11 March 2004 authorization.”
RYAN LIZZA: It’s the entire unadulterated history of these programs.
BARTON GELLMAN: He told me that reading the inspector general’s report made a big impression on him. He felt like people had done things that were wrong and had not been held accountable for them.
BARACK OBAMA, President of the United States: The laws that are written will be more open to the public. No more secrecy. That’s the commitment I make to you as president!
NARRATOR: And under President Obama, Snowden watched as the program continued.
BARTON GELLMAN: His hope was that Obama would be a force for transparency, and that’s not what happened. And that was another of the pivotal moments in which Snowden realized it was going to have to be him.
NARRATOR: As Snowden was deciding exactly what to do, Obama’s Justice Department began to address those Bush-era leak investigations, led by Attorney General Eric Holder.
JANE MAYER, The New Yorker: What’s interesting is that these cases from the Bush era linger on. They don’t just throw them out, they revisit them. And they keep going after the enemies of the National Security Agency, much as they’d done under Bush.
NARRATOR: Despite the campaign rhetoric in support of whistleblowers, President Obama did nothing to stop the prosecutions.
RICHARD CLARKE, White House NSA Review Group, 2013: This president, personally, really doesn’t like people leaking classified information. He takes that very seriously, and he thinks that we should all take it very seriously.
BARTON GELLMAN: In every conversation that Obama had that I have heard about, he said, “When it comes to national security, you leak classified information that could endanger people, we’re going to come down on you like a ton of bricks.”
NARRATOR: And when the bricks fell they, landed on Thomas Drake.
J. KIRK WIEBE, NSA Senior Analyst, 1975-01: They couldn’t indict us all, so they went after the one that they could at least show an example to the rest of the intelligence analysts, “You speak, you go to the press, you’re going to get hammered.” These were the lessons that were coming— supposed to come out of being raided, and then in Tom’s case, indicted.
NARRATOR: On April 14th, 2010, Thomas Drake was finally charged.
THOMAS DRAKE, NSA Senior Executive, 2001-08: I was arraigned. Before I was arraigned before the judge, I was fingerprinted, you know, by the U.S. Marshals, with the FBI agent watching. You know, I was— I was a direct threat to the national security of the United States. I truly had become an enemy of the state.
NARRATOR: Drake was charged with violating the Espionage Act.
THOMAS DRAKE: And I’m facing the distinct prospect of having the rest of my life spent behind bars, effectively.
NARRATOR: As he waited for his day in court, Drake’s life began to fall apart.
JAMES BAMFORD, Author, The Shadow Factory: He spent two years draining all his resources on a private attorney, and then when he had no more money, he had to go to a public defender.
THOMAS DRAKE: It was extraordinarily lonely. I mean, life had become already extremely difficult. All the income I had, all the retirement’s gone. Your life is turned upside down. You’re persona non grata. I ended up finding work, initially part-time, then full time, at an Apple store.
NARRATOR: At the center of the government’s case were those documents found at Drake’s house. Prosecutors insisted they were classified. Drake’s lawyers turned to author James Bamford.
JAMES BAMFORD: I was hired as a consultant by the defense and was able to find basically all the information that they were charging him with was already in the public domain. Not only that, it had been placed in the public domain by the government itself.
WILLIAM BINNEY: I looked at the stuff that he was indicted for. That material was clearly marked unclassified.
JESSELYN RADACK, Drake’s Attorney: It was not stamped classified until after it was seized from Tom Drake’s home.
WILLIAM BINNEY: And all they did was draw a line through it and classified that material, and so then they charged him with having classified material. It’s like framing him, and “We’re going to frame you after the fact.”
NARRATOR: The government later insisted the documents Drake had contained national secrets and were covered by the espionage law. But then just days before the trial was to begin, the charges against Drake were dropped
JANE MAYER: It was astounding. Basically, Drake went from someone charged with such serious crimes that he could spend the rest of his life in prison, to having it bargained down, because the Justice Department could see it was falling apart, to a misdemeanor, where he spent no time at all in prison.
NARRATOR: Drake agreed to plead guilty to misdemeanor unauthorized use of a government computer. He was charged a $25 court fee, put on probation for a year and given community service. None of the other suspects in the leak investigation were ever charged.
It had been more than 10 years. Despite the revelations of insiders like Drake and the news reports about the program, there was little public outrage and few congressional critics. “The program” was continuing to grow.
But at a secret bunker in Hawaii, Edward Snowden was now working for a new NSA contractor. Snowden was initiating his own move to expose the program.
NEWSCASTER: The FBI has raided the offices established to protect federal whistleblowers—
NARRATOR: Snowden studied carefully the actions of the other whistleblowers, the ThinThread group—
NEWSCASTER: —war on whistleblowers in America and other government officials—
NARRATOR: —and Tamm, and especially Drake.
NEWSCASTER: —has allegedly blown the whistle.
BARTON GELLMAN: What he’d learned from Drake and Binney is that you can be discredited or people won’t know whether to believe you if you don’t have proof. And it was because of that that he decided it had to be documents, and it had to be a lot of documents.
NEWSCASTER: The New York Times broke the story after holding it for a year at the request of the White House—
NARRATOR: And unlike Tamm, Snowden would not go to The New York Times.
NEWSCASTER: —paper faces questions about why it held that story—
EWEN MacASKILL: Snowden was disgusted at The New York Times for, you know, having that story before the election, sitting on it for month after month. And he had a real antipathy towards The New York Times as a result of the way they’d behaved over Risen.
NARRATOR: Instead of The New York Times, Snowden would reach out to Glenn Greenwald, Laura Poitras and Barton Gellman. And he would begin systematically copying and giving them documents that held many of the United States’ most closely guarded secrets.
BARTON GELLMAN: Snowden had clearances for human intelligence. He had clearances for many, many compartments of electronic surveillance. And he had a third set of powers, which is actually called “super user.” It’s a very potent combination that opened many, many doors to him.
GLENN GREENWALD, The Guardian, 2012-13: Here is this low-level analyst who was able to access, if you believe the government, 1.7 million documents, and walk out of the agency with them without them having the slightest idea that it was taking place.
RICHARD CLARKE: This was a stupendous intelligence breach. This was the largest collection of classified information, the largest leak of classified information that had ever occurred in the history of the United States, or indeed, the history of the world.
NEWSCASTER: —embarrassing for the Obama administration, a trove of documents leaked by Edward Snowden—
NARRATOR: For the National Security Agency, the biggest threat to “the program” was just beginning.
NEWSCASTER: The NSA has collected millions of contact lists—
NEWSCASTER: —intercept hundreds of thousands of e-mail address books every day—
NEWSCASTER: —could allow the NSA to map out a person’s life—
NEWSCASTER: —bombshell allegation that our government has been spying—
NEWSCASTER: NSA tool collects nearly everything a user does on the Internet.
United States of Secrets (Part Two): Privacy Lost
ANNOUNCER: Last time on United States of Secrets—
THOMAS DRAKE, NSA Senior Executive, 2001-08: We are under emergency conditions. Extraordinary means are required to deal with the threat.
ANNOUNCER: They called it “the program.”
BARTON GELLMAN, The Washington Post/FRONTLINE: You’re looking for unknown conspirators, and the way they devised to do that was to look at everybody.
ANNOUNCER: Authorized at the highest levels of government—
Pres. GEORGE W. BUSH: This is a highly classified program that is crucial to our national security.
ANNOUNCER: —over two presidencies.
BARTON GELLMAN: I’m not aware of any case in which Obama said, “You can’t do that.”
DIANE ROARK, Staff, House Intel. Cmte., 1985-02: I argued that it was illegal and unconstitutional, and when this comes out, all hell is going to break loose.
ANNOUNCER: Now FRONTLINE’s investigation continues—
EDWARD SNOWDEN: The NSA specifically targets the communications of everyone.
ANNOUNCER: —with the story of the man who exposed it all.
BARTON GELLMAN: Snowden said he was risking his freedom and possibly his life.
RICHARD CLARKE, NSA Review Group, 2013: This was a stupendous intelligence breach.
ANNOUNCER: —and the convergence of government surveillance and an information revolution.
CHRISTOPHER SOGHOIAN, Principal Technologist, ACLU: The Googles, the Facebooks collect as much of our sensitive data as possible.
TIM WU, Author, The Master Switch: But anything you hand to a private company is potentially the government’s.
ANNOUNCER: Tonight on FRONTLINE—
BARTON GELLMAN: Corporate America and the national security state know so much about us, and we know so little about them.
ANNOUNCER: Privacy Lost, part two of United States of Secrets.
NARRATOR: Hong Kong, May 2013, NSA contractor Edward Snowden was holed up deep inside the crowded Kowloon district. He chose Hong Kong, he would say later, because he trusted the Chinese would not betray him to U.S. authorities. Before leaving his home in Hawaii, he had downloaded a huge store of top secret files from the NSA’s internal networks, and he had sent many of them through encrypted channels to a few journalists he trusted.
Two of them, Glenn Greenwald of The Guardian and documentary filmmaker Laura Poitras, came to the Mira Hotel to meet him. Greenwald and Poitras wanted to be sure Snowden’s story was rock solid. And they needed to work fast.
GLENN GREENWALD, The Guardian, 2012-13: We knew that this was incredibly consequential and that it was-super important that we get it right. But also, there was always this kind of uncertainty, one might even say danger, hovering over the room because we didn’t know what the NSA knew about what he was doing. We didn’t know what the Chinese and Hong Kong governments knew about him being there. So we thought it was very possible that the door could be barged down at any moment.
NARRATOR: The Guardian also sent a senior correspondent to vet their source.
EWEN MacASKILL, The Guardian: I asked him, “Do you mind if I tape the interview on an iPhone?” And as soon as he saw the iPhone, it was like bringing out a microphone direct into the NSA headquarters. He was totally appalled. And he said, “Get that out of the room as quickly as possible.”
NARRATOR: Even then, Snowden still worried that someone might be recording them.
GLENN GREENWALD: He would often put a blanket over his head when he wanted to enter this computer system to prevent overhead cameras from picking up the passwords to the encryption.
NARRATOR: As Snowden explained more about the tens of thousands of documents, MacAskill listened carefully.
EWEN MacASKILL: I was sort of warming to the idea that, you know, this guy was for real.
NARRATOR: One of the first files they discussed was this one. It directed Verizon Business Services to turn customer phone records over to the NSA. The journalists were stunned.
GLENN GREENWALD: What this document revealed is that the NSA surveillance system is not directed at very bad people or about terrorists, it’s directed at the American citizenry and other citizenries around the world, indiscriminately, in bulk.
NARRATOR: The document directly contradicted what Director of National Intelligence General James Clapper had said before Congress just a few months earlier.
Sen. RON WYDEN (D), Oregon: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?
Gen. JAMES CLAPPER: No, sir.
Sen. RON WYDEN: It does not?
Gen. JAMES CLAPPER: Not wittingly. There are cases where they could inadvertently perhaps collect, but not— not wittingly.
GLENN GREENWALD: I think for Snowden, the Clapper testimony was the final nail in the coffin. Watching President Obama’s top national security official go before the Senate Intelligence Committee and outright lie about what the NSA was doing convinced him, I think, beyond any shadow of a doubt that the only hope for public discussion and reform was for him to do what he was going to do.
NARRATOR: At The Guardian’s New York bureau, senior editors received a message from Hong Kong.
EWEN MacASKILL: I sent a message saying “The Guinness is good,” which meant Snowden’s for real. And one of the deputy editors in New York said when he saw those words come over, he just went, you know, “Fantastic. We’ve got a real story.”
NARRATOR: The Guardian decided to publish the story as fast as possible. They called the White House and gave them four hours to comment.
BEN RHODES, Dep. National Security Advisor: I remember well getting the phone call. And it was one of these situations where it almost took us a few minutes to get our minds around how big of a leak this was and how comprehensive the set of revelations were. We had very little time to react.
NARRATOR: They sounded the alarm and reached out to an NSA official, John DeLong.
JOHN DeLONG, NSA Director of Compliance: I have two computers on my desk, a classified computer and an unclassified computer. And I’m used to seeing that document on the classified computer. And I did a real double take. And I remember just sitting there for 30 seconds, checking and rechecking to see what computer this classified document appeared on. The gravity of it was— was quite palpable, and I thought, “This is going to be a really tough story as it comes out.”
NARRATOR: At The Guardian, editor-in-chief Janine Gibson took a return call from the White House.
LUKE HARDING, The Guardian: She has the deputy head of the NSA and the White House on the phone, and they essentially are trying to persuade her not to publish.
EWEN MacASKILL: The White House tactic was one of, “OK,” you know, “come and see us. Let’s talk about this. And you can chat to our officials, and we can discuss,” you know, “what might be published and what might not.”
LUKE HARDING: Janine has her own script, which is to say, “Look, if you have any significant objections, objections on the grounds of national security, then tell us. Now is the moment to tell us.” And of course, they don’t. They just want to stall her.
NARRATOR: The Guardian refused to wait.
NEWSCASTER: —British newspaper The Guardian reports that Verizon is providing phone records of some businesses—
NEWSCASTER: It took a British newspaper to uncover how the American—
NARRATOR: It was just the beginning.
NEWSCASTER: —government is spying on Americans and—
NARRATOR: At The Washington Post, reporter Bart Gellman, the only other reporter to receive documents directly from Snowden, was working on another story. Before publishing, he contacted the NSA.
BARTON GELLMAN, The Washington Post/FRONTLINE: I sent notes to two high-ranking people and a spokesperson in government, and said, “I have something very sensitive to talk to you about.”
NARRATOR: The story concerned another NSA program called PRISM. Documents showed how, beginning in 2007, nine Internet companies were cooperating with the NSA. Gellman wanted to make sure his reporting wouldn’t damage national security.
BARTON GELLMAN: We very much did want to know what they thought would do concrete harm, and how, and why. And the U.S. government asked me not to publish the names of the nine companies that were supplying information to the government in the PRISM program. And I said, “Why?” Their argument was that if we publish the names, then the companies would be less inclined to cooperate. And I guess we agreed to disagree on that one.
NEWSCASTER: The Washington Post is reporting that the—
NARRATOR: The Post went ahead.
NEWSCASTER: —FBI are mining the servers of nine leading U.S. Internet—
NARRATOR: The PRISM revelations reached beyond the collection of phone records.
NEWSCASTER: —spying on its own citizens—
NARRATOR: This was about the acquisition of content of tens of thousands of NSA targets.
NEWSCASTER: Did you check your account on Gmail?
NEWSCASTER: —secret spying program is entirely different—
BARTON GELLMAN: The PRISM program is not about metadata, it’s about content. It’s the photos and videos you send. It’s the words of your emails. It’s the sounds of your voice on a Skype call. It’s all the files you have stored on a cloud drive service. It’s content. It’s everything.
NARRATOR: The president was on a fund-raising trip in Silicon Valley. At a press conference, he agreed to take one question about the leaks.
Pres. BARACK OBAMA: Good morning, everybody. I’m going to take one question. I don’t want the whole day to just be a bleeding press conference, but I’m going to take Jackie Calmes’s question.
JACKIE CALMES, New York Times: Mr. President, could you please react to the reports of secret government surveillance of phone and Internet? And can you also assure Americans that their government, your government, doesn’t have some massive secret database of all their personal on-line information and activities?
Pres. BARACK OBAMA: Yeah. What the intelligence community is doing is looking at phone numbers and durations of calls. They are not looking at people’s names, and they’re not looking at content.
NARRATOR: The president tried to downplay the revelations.
Pres. BARACK OBAMA: Now, with respect to the Internet and emails, this does not apply to U.S. citizens and it does not apply to people living in the United States. In the abstract, you can complain about Big Brother and how this is a potential, you know— you know, program run amok. But when you actually look at the details, then—
LUKE HARDING: In Hong Kong, Snowden was sitting with three people under contract with The Guardian. They were sitting there on the bed watching the reaction on CNN.
Pres. BARACK OBAMA: —not looking at people’s names, and they’re not looking at content—
GLENN GREENWALD: Obama was saying the NSA isn’t listening to the telephone calls or reading the emails of Americans, which is absolutely wrong. There were documents that we had that proved that President Obama’s claims in that regard were false. And we just could tell, as well, that he at that moment didn’t have any idea of the true magnitude of what was coming, given how dismissive and casual his tone was.
Pres. BARACK OBAMA: Thank you very much, guys.
NARRATOR: Snowden now decided to make a bold move. He would reveal his identity, posting a video he had recorded a few days earlier.
EWEN MacASKILL: Laura set up the camera. Glenn was asking the questions. And normally, Snowden wore a T-shirt. And Glenn says, “Can you not find a shirt?” And Snowden went off and found gray— gray shirt.
EDWARD SNOWDEN: My name’s Ed Snowden. I’m 29 years old. I worked for Booz Allen Hamilton as an infrastructure analyst for NSA in Hawaii.
LUKE HARDING: What we see is someone who’s calm, rational, persuasive.
EDWARD SNOWDEN: The NSA specifically targets the communications of everyone. It ingests them by default. It collects them in its system, and it filters them and it analyses them and it measures them and it stores them.
EWEN MacASKILL: The language was clear, sympathetic. And when he did the interview, it was as if he was a media natural. So we knew that when Snowden got public, it was going to be a huge story.
GLENN GREENWALD: Why should people care about surveillance?
EDWARD SNOWDEN: Because even if you’re not doing anything wrong, you’re being watched and recorded.
LUKE HARDING: And he sets out why he’s done this thing and what his motives are, and basically sort of puts the ball in the court of the public and says, “You make up your minds as to whether this is right or not.”
EDWARD SNOWDEN: These things need to be determined by the public, not by somebody who’s was simply hired by the government. This is the truth. This is what’s happening. You should decide whether we need to be doing this.
NEWSCASTER: Edward Snowden, according to The Guardian, is in Hong Kong—
NEWSCASTER: —contractor who leaked the existence of NSA programs—
NEWSCASTER: Snowden fled to Hong Kong three weeks ago after copying—
GLENN GREENWALD: We knew that the minute we unveiled his identity that he was going to have to go into hiding because the media horde was about to descend onto Hong Kong and would be looking for him. And the U.S. government would certainly be looking for him.
EWEN MacASKILL: At that point, he knew it was untenable. Some enterprising journalist had put up on Twitter the pictures of the hotel room and says, “Does anyone recognize these light fittings?” And someone was able to establish it was the Mira.
NEWSCASTER: —where Edward Snowden is believed to have been—
NEWSCASTER: —hotel is just across the harbor—
EWEN MacASKILL: So Snowden knew they were on their way. So about mid-day, he left his hotel room.
GLENN GREENWALD: And there was definitely a kind of air of sadness over our last meeting because I assumed that the next time I saw him, he was going to be in U.S. custody, on a television screen.
NARRATOR: Snowden left it to the journalists to decide which documents to publish, and then he disappeared into the crowded streets of Hong Kong. For two weeks, he managed to elude the world’s press corps—
NEWSCASTER: —hiding in Hong Kong where—
NEWSCASTER: —apparently, still in Hong Kong—
NARRATOR: —and to avoid U.S. authorities.
NEWSCASTER: Edward Snowden’s been charge with two counts of espionage and—
Rep. PETER KING (R), New York: This guy is a traitor. He’s a defector—
NARRATOR: On June 23rd, Edward Snowden set off for South America via Russia.
NEWSCASTER: —transit through Russia. Supposedly, he’s headed for Ecuador—
GLENN GREENWALD: He ended up in Russia for one very simple reason, and that is that the United States government forced him to stay there by preventing him from leaving.
NEWSCASTER: Snowden is believed to be holed up inside Moscow’s airport—
NEWSCASTER: —in the transit zone of Moscow airport—
GLENN GREENWALD: He could no longer get a ticket and leave Russia because his passport had been revoked by the U.S. government.
JOHN KERRY, U.S. Secretary of State: People may die as a consequence of what this man did, and anybody who wants to make him a hero is misjudging how they stay safe.
NEWSCASTER: The man on the run from U.S. authorities—
NEWSCASTER: —one of the greatest security breaches in American history—
NEWSCASTER: Russia has granted Edward Snowden asylum.
NEWSCASTER: Edward Snowden was granted asylum in Russia—
NEWSCASTER: —less likely he will ever see the inside of a U.S. courtroom—
NEWSCASTER: —filed a lawsuit challenging the NSA—
NARRATOR: Back in the U.S., at NSA headquarters, the news hit hard.
NEWSCASTER: —shocking headline, and it has grown—
NEWSCASTER: —trolling through billions of phone records—
JOHN DeLONG: It was hard to read in the press NSA is lawless, NSA out of control. None of those resonate with us. That’s not us. That’s not what we are aiming towards. That’s not how we hold ourselves accountable. Our ultimate goal is to prevent things from— bad things from happening, to ensure the national security.
MICHAEL HAYDEN, NSA Director, 1999-05: You want to draw the box differently? You want to— you want to have the security community work in a smaller box? I got it. But before you do that, you got to understand. You got to understand what the costs might be. I mean, we live inside a democracy, and you know, public will matters in a democracy. I just hope it’s informed public will, and frankly, when the decisions are made, you understand the costs.
Pres. BARACK OBAMA: We have to strike the right balance between protecting our security and preserving our freedoms.
NARRATOR: The President did what executives in the midst of a controversy often do—
Pres. BARACK OBAMA: —review of our surveillance programs—
NARRATOR: He appointed a panel.
Pres. BARACK OBAMA: So I am tasking this independent group to step back—
NARRATOR: This one to review the NSA’s programs.
Pres. BARACK OBAMA: And they will provide an interim report in 60 days and a final report by the end of this year so that we can move forward with a better understanding of how these—
RICHARD CLARKE, NSA Review Group, 2013: The president’s directions were, “Go wherever you want. You can see any classified program. No one can deny you any information. You can go anywhere in the intelligence community. You can recommend anything. Except realize that what I won’t accept is any block between me and my constitutional oath of defending the United States.”
NEWSCASTER: —the highly classified program is code named PRISM—
NEWSCASTER: —The Guardian and The Washington Post both reporting that the National Security Agency—
NARRATOR: On the other side of the country, in Silicon Valley, there was anger and confusion over just what kind of access major Internet companies were giving the NSA.
NEWSCASTER: —extracting audio, video, photographs and email—
TIM WU, Author, The Master Switch: There was shock and disbelief and horror. A lot of people I know, Silicon Valley-type people, just felt, “It can’t be right. It’s not possible. Google, Facebook, these guys are collaborating. It’s not just what they would do.”
NEWSCASTER: CEOs of Internet companies like Facebook and Google denied—
NARRATOR: The companies scrambled to respond to the news.
NEWSCASTER: Google denies that they have direct access. Who’s right?
STEVEN LEVY, Wired: They freaked out because they’d never heard of a program called PRISM, and they were not letting the NSA get direct access to their servers. They were cooperating with a secret program that they really couldn’t describe in sufficient detail to their customers.
BARTON GELLMAN, The Washington Post/FRONTLINE: They saw here a big threat to their image, to their business model, which relies on people to trust them with their communications. And they started issuing quite heated statements, taking issue with the idea that they would be just handing over free access to the NSA.
NARRATOR: But then there was more bad news.
NEWSCASTER: The Washington Post, citing documents stolen and released by Edward Snowden—
NARRATOR: PRISM was only part of what the NSA was up to.
NEWSCASTER: —newly disclosed way the NSA is monitoring the Internet—
NARRATOR: In a program called Muscular, the NSA was secretly extracting data from fiberoptic cables overseas, where intelligence operations are much less restrained by surveillance laws.
BARTON GELLMAN: PRISM was the front door. PRISM was the court saying, “You have to cooperate with the NSA and give specific information when asked.” Now they find out that through the back door, the government is actually breaking into their infrastructure and taking whatever they want.
ASHKAN SOLTANI, The Washington Post: They can’t intentionally look for a U.S. person’s information unless they believe it’s a legitimate foreign target. But otherwise, they’re free to collect it at— pretty much unrestricted abroad. They can hack into companies’ internal networks and collect information in bulk
NARRATOR: The NSA did this by invoking a Reagan-era presidential order, from a time long before the modern Internet.
BARTON GELLMAN: The NSA decided it was OK under Executive Order 12333, and with the backing of the Justice Department and the White House, to break into the private links, the private data links that connect the data centers of Google and Yahoo around the world. You’re collecting a very large fraction of the whole planet’s Internet traffic, and that includes a very large number of Americans.
NEWSCASTER: The project, identified by the code name Muscular, is run jointly—
STEWART BAKER, Asst. Sec., Homeland Security, 2005-09: We do not just tap into lines in the United States. Overseas, the ability to do that in bulk is critical for finding the communications of people who are trying to hide. If you can look for certain patterns and dive into those communications, you find people utterly unknown to you who are very dangerous.
NARRATOR: Google was shocked. They had leased what they thought were secure data lines.
ANDREW MCLAUGHLIN, Dir., Global Public Policy, Google, 2004-09: The idea that one of our own government agencies would go out and essentially break into Google’s own data streams, to go beyond what Google thought had been a skeptical and resistant but nevertheless cooperative relationship— I find that quite shocking. That is sort of a betrayal of the relationship that I think Google felt like it had with the government.
NARRATOR: The leaked files even showed the NSA operatives bragging about their accomplishment.
STEVEN LEVY: There was that one slide, the internal NSA slide, showing a little diagram of how it worked. And it sort of boasted about it, and it put a little smiley face there, this little— you know, like emoji, “Gotcha,” you know, saying, you know, “Ha ha,” you know, “we’re— we figured out a way to get that information.”
NARRATOR: Google, which had a better record than most companies on encryption, was criticized for leaving its internal data lines vulnerable.
MATTHEW GREEN, Cryptographer, Johns Hopkins Univ.: I don’t know why Google wasn’t encrypting the information traveling between their data centers, but we know that they weren’t. And we know that the NSA revelations have prompted them to make massive changes in the way their systems work, and they’re now trying to encrypt that data on a crash program to get all of that information encrypted.
NARRATOR: The NSA will now have a harder time reading Google’s data without Google’s knowledge.
STEWART BAKER, NSA General Counsel, 1992-94: Obviously, the National Security Agency did not design its programs on the assumption that they would be exposed. Much of this damage is down to Snowden, who is quite deliberately causing as much harm to U.S. companies and the U.S. national interests as he possibly can, leaking these stories in media that are most likely to hype them in ways that will be damaging to the United States.
NARRATOR: It should have been no surprise that the NSA would be digging into the companies’ data. Immediately after 9/11, the companies had been warned.
Pres. GEORGE W. BUSH: [October 26, 2001, Patriot Act signing] This new law that I sign today will allow surveillance of all communications used by terrorists, including emails, the Internet and cellphones. As of today, we’ll be able to better meet the technological challenges posed by this proliferation of communications technology.
NARRATOR: With the signing of the Patriot Act in 2001, a new era of intelligence gathering and surveillance had been set in motion.
Pres. GEORGE W. BUSH: The American people need to know that we’re collecting a lot of information and we’re spending a great deal of time trying to gather as much intelligence as we possibly can, to chase down every lead, to run down every hint so that we can keep America safe. And it’s happening. It’s happening.
NARRATOR: It was happening, but it was veiled from public view. In San Francisco, in the summer of 2002, a technician at AT&T, Mark Klein, was one of the first to witness something.
MARK KLEIN, AT&T Technician, 1981-04: There was some speculation there was some kind of spying they’re doing having to do with the new era of fighting terrorism or something. But nobody knew.
NARRATOR: One day, an agent of the National Security Agency showed up to talk to one of Klein’s supervisors.
MARK KLEIN: I happened to answer the door. He comes in. He’s wearing a business suit, looking very stern and not smiling at all. That’s all I knew about it, and I thought I’d never hear about this ever again.
NARRATOR: But later, inside this AT&T facility, Klein noticed something unusual on the sixth floor.
MARK KLEIN: It’s room 641A, it says on the door. And what’s mysterious about it is there’s no door handle. So it looks kind of odd.
NARRATOR: Klein began to investigate.
MARK KLEIN: I traced the cabling coming out of the room. I could not find direct cabling going from the secret room to the phone switch. The cabling all seemed to go upstairs.
NARRATOR: Upstairs on the seventh floor was where AT&T handled Internet traffic.
CHRIS HOOFNAGLE, Dir., UC Berkeley Center for Law & Technology: What Mark Klein found was an infrastructure that suggested that the government was copying all traffic going through the AT&T Internet backbone.
NARRATOR: Klein got hold of engineering drawings that showed the cables he had traced were going to a device called a splitter.
MARK KLEIN: The splitter is basically a glass prism. So you put a cable in there, the light beam goes in there and its splits, like that. One half is going to the secret room, and the other half was going to its normal assigned destination. But it’s been copied in the process.
CHRIS HOOFNAGLE: And this was important because if one can split the light or divert the light out of one of those networks, one can copy everyone’s traffic on the network. It’s kind of an unfathomable amount of information.
MARK KLEIN: The Internet chops everything up into little data packets. So there’s your email, your Web browsing, photos you might be sending. This was a huge dragnet operation, and I was furious because I never signed up to work for the NSA. But I was in my late 50s, and I didn’t want to lose my job. So I was stuck. And I was afraid.
NARRATOR: Klein was afraid to speak out for several years—
NEWSCASTER: The New York Times broke the story about the National Security Agency spying—
NARRATOR: —but went public after reading a front page New York Times story about NSA spying in 2005.
NEWSCASTER: No search warrants or court orders were ever—
JULIA ANGWIN, Author, Dragnet Nation: And when Mark Klein came out and said, “I work at AT&T, and the NSA is tapping into our— our network,” that was the first time that the American public realized how far things had gone since 9/11, how much domestic surveillance there was. He raised this allegation. No one ever acknowledged that it was actually happening. It still remains an open question. But no one has ever denied it, either.
MARTIN SMITH, Producer: Do you remember the incident in San Francisco where the technician, Mark Klein, had found the room—
ROBERT DIETZ, NSA General Counsel, 1998-06: Vaguely.
MARTIN SMITH: —with the splitter?
ROBERT DIETZ: Vaguely.
MARTIN SMITH: What was that about?
ROBERT DIETZ: I’m not going to talk about that.
MARTIN SMITH: Was it a legal program?
ROBERT DIETZ: Absolutely legal, yes.
MARTIN SMITH: It was?
ROBERT DIETZ: Uh-huh.
MARTIN SMITH: Was it part of warrantless wiretapping?
ROBERT DIETZ: I don’t think so.
MARTIN SMITH: Was it under a FISA court order?
ROBERT DIETZ: I’m not going to get into that. To the best of my knowledge, it’s still a classified program, and I’m not here to divulge national security information.
NEWSCASTER: One of the big stories this week, the National Security Agency’s collection—
NARRATOR: News stories on warrantless wiretapping brought unwanted attention to the telecom companies.
Sen. ARLEN SPECTER, (D) PA, 1981-11: Mr. Whitacre, has AT&T provided customer information to any law enforcement agency?
EDWARD WHITACRE, Jr., AT&T Chairman & CEO, 2005-07: Senator, we protect the privacy of our customers, and we follow the law. And that’s all I can say about that.
Sen. ARLEN SPECTER: Are you declining to answer my question, Mr. Whitacre?
EDWARD WHITACRE: We follow the law, Senator.
Sen. ARLEN SPECTER: Does AT&T provide customer information to any law enforcement agency?
EDWARD WHITACRE: We follow the law, Senator.
Sen. ARLEN SPECTER: That is not an answer, Mr. Whitacre.
TIM WU: AT&T, Verizon, the Bell phone companies, have seen themselves in a kind of partnership with the government for almost 100 years.
EDWARD WHITACRE: I’m telling you we don’t violate the law, we follow the law.
Sen. ARLEN SPECTER: Now, that’s a legal conclusion, Mr. Whitacre—
TIM WU: For almost 70 years, the government guaranteed them a monopoly.
Sen. ARLEN SPECTER: —but I’m asking you for a factual matter.
TIM WU: And so they have always been and continue to be faithful handmaidens of the government’s will.
Sen. ARLEN SPECTER: If you’re under instructions by the federal government, as a matter of state secrecy, not to talk, say so.
EDWARD WHITACRE: Senator, we follow the law.
CHRISTOPHER SOGHOIAN, Principal Technologist, ACLU: Surveillance assistance is now in the structure of these companies. It’s something they’re very comfortable with. There’s no CEO of a telephone company that’s losing sleep over the wiretap assistance that they’re providing to law enforcement or the intelligence community.
NARRATOR: The new Internet companies, on the other hand, were less comfortable cooperating with the government. But even before the NSA’s PRISM program, they, too, had been complying. One CEO, however, decided to fight back.
NICK MERRILL, CEO, Calyx: In 2004, I got a phone call from the FBI, and they said that they had a letter for me. And within an hour or two, an agent had come to hand deliver a letter to me.
JENNIFER VALENTINO-DEVRIES, The Wall Street Journal: The FBI handed him a letter. He looked at the letter, and it asked for what he describes as a significant array of information from his company. And he noticed that it didn’t appear to have been signed by a judge. It didn’t appear to be a regular court order.
NICK MERRILL: It was not a warrant. It was not stamped or signed by a court or a judge. It was this letter demanding this information from me. And it also told me that I could never tell anyone that I had gotten the letter. It said that I could tell “no person.”
[www.pbs.org: Read the letter]
NARRATOR: Nick Merrill ran a small Web-hosting company in New York named Calyx.
NICK MERRILL: It was a company that I started in 1994. We hosted Mitsubishi Motors, IKEA, Snapple, Tanqueray, you know, blue chip clients. And we hosted a lot of independent media and non-profit organizations. That seemed like good people that I wanted to help. And— and that was really where my passion was.
NARRATOR: The letter Merrill received was a National Security Letter or NSL. After 9/11, the Patriot Act allowed any FBI office in the country to issue NSLs without a court’s review and with a gag order.
JENNIFER VALENTINO-DEVRIES: It said he couldn’t tell anyone about this letter at all, and that gag order is part of what made him concerned about going even to a lawyer.
NICK MERRILL: To be honest with you, I was terrified to talk to anyone about it, so I didn’t. I didn’t call any of my colleagues, I didn’t speak to anyone about it. It was clear to me that this was an official and genuine document, but I thought that it was not legal and not constitutional. And so I decided to disobey the commandment that I couldn’t tell anyone, and I called my lawyer.
NARRATOR: Merrill enlisted the aid of the American Civil Liberties Union to challenge the letter in court.
NICK MERRILL: I had doubts myself about whether I was doing the right thing, but what gave me confidence was the fact that we offered to give them the information if they would simply get a real warrant, and the fact that they refused to get one.
NARRATOR: That same year, the FBI issued 56,000 National Security Letters, but Merrill was the first person who had challenged a letter on constitutional grounds.
CHRISTOPHER SOGHOIAN: He was an independent operator of an Internet company who really cared about privacy and the trust of his users. Most companies are not in that business. Most companies are offering services to large numbers of users and don’t really want to deal with some kind of lengthy legal fight.
BARTON GELLMAN: To litigate is expensive. When you’re getting tens of thousands of these letters a year, to litigate any substantial number of them is ruinous. Besides which, the big companies that are receiving these letters have regulatory business before the U.S. government and they don’t want to annoy the authorities.
[www.pbs.org: More from Barton Gellman]
NARRATOR: Until 2013, no major Internet or phone company is known to have questioned the constitutionality of a National Security Letter.
ANDREW MCLAUGHLIN, Google, 2004-09: I think, that Nick challenged that is fantastic. I would love it if Google had challenged that. It would—
INTERVIEWER: Why didn’t they?
ANDREW McLAUGHLIN: I have no clue, no idea. I mean, the number of people at Google who can know about the existence of the letter is arguably, like, two or three. You know, presumably, it’s the lawyer who has been designated to receive them. So maybe two people at Google would know about it. You look at it on its face, it looks like it relates to national security, so you comply.
NARRATOR: Finally, in 2013, Google did challenge 19 NSLs. By that time, the FBI had withdrawn Merrill’s National Security Letter after an appeals court ruled it unconstitutional.
NICK MERRILL: I think that they were afraid that we would make it to the Supreme Court, and they were not 100 percent certain that they would get the answer that they want.
JENNIFER VALENTINO-DEVRIES: The FBI dropped its request, but what’s interesting is that he’s still not able to talk about exactly what they requested, other than that it was information. And he says that if we knew what had been requested that we would be shocked.
NARRATOR: The big Internet companies had different priorities. At the same time the government was expanding its intelligence gathering, the companies were trying to find out as much as possible about their users, amassing huge data troves. The NSA was watching.
CHRIS HOOFNAGLE, UC Berkeley Law School: These companies are in a very difficult spot because the types of activities they engage in is very similar to surveillance. It is surveillance, just for advertising, rather than for law enforcement. The private sector is where the whole game is.
TIM WU, Columbia Law School: I remember I was talking to someone at Google, and I was, like, “You mean you keep all that stuff, all those things I search for?” And he said, “Well, yeah.”
NARRATOR: From the beginning, Google founders Larry Page and Sergey Brin had discovered that Web searches were very revealing and very valuable.
ANDREW McLAUGHLIN: Every search is in some sense an expression of intention. It’s an expression of what you want to do, where you want to go, what you’re looking for. And that maps very nicely with the desire of advertisers to target their messages towards people at the moment when they are intending to go buy something.
NARRATOR: From a simple search box, Google struck gold.
STEVEN LEVY, Author, In the Plex: I think it’s the most effective product the Internet has ever seen. Google’s ads were so effective that, all of a sudden, their problem was hiding how much money they made so that Microsoft and other competitors didn’t come after them.
NARRATOR: Page and Brin would make billions. But it was their 2004 launch of Gmail, with vastly more storage than Microsoft’s Hotmail and Yahoo mail, that immediately sparked controversy for how it mined email content.
STEVEN LEVY: They would scan your mail and try to figure out if there was a relevant ad they could show you alongside the mail.
ROBERT GELLMAN, Privacy Expert: They said, “We’re going to basically recover our costs and make a profit by showing ads when you send email or when you receive email.” And in order to determine what ads to show you, they read your emails.
ANDREW McLAUGHLIN: There was a wave of negative news stories, comments, blog posts and so forth that came out that day. And the alarm bell was really rung by privacy advocates, who said, “We cannot allow this go forward. This is crossing a Rubicon. You cannot scan our emails.”
STEVEN LEVY: And Google tried to assure them, “Really, no, no, it’s not people.” You know, “We’re just scanning the mail. Other places scan your mail for spam,” you know, “so we’re really not even doing anything different by that. We’re just showing you ads.” And a lot of people just felt it was creepy.
CHRIS HOOFNAGLE: If I were to go attach alligator clips to the phone wire, it’d be a felony. I’d go to prison for that. What Gmail proposed was exactly that, a kind of wiretap of all email looking at the content, to pitch advertising in real time.
NARRATOR: At Google, Andrew McLaughlin got a phone call.
ANDREW McLAUGHLIN: I got a phone call from a staffer for a state senator in California named Liz Figueroa. The staffer said, “Senator Figueroa is deeply concerned about this practice of targeting ads to email messages. She’s very much interested in pursuing legislation that would ban this practice,” and could we have a conversation.
LIZ FIGUEROA, (D) State Senator, CA, 1998-06: We walk into this room, and it’s myself and two of my staff— my chief of staff and one of my attorneys. And across from us was Larry, Sergey, and their attorney.
All of a sudden, Sergey started talking to me. He said, “Senator, how would you feel if a robot went into your home and read your diary and read your financial records, read your love letters, read everything, but before leaving the house, it imploded?” And he said, “That’s not violating privacy.”
I immediately said, “Of course it is. Yes, it is.” And he said, “No, it isn’t. Nothing’s kept. Nobody knows about it.” I said, “That robot has read everything. Does that robot know if I’m sad or if I’m feeling fear, or what’s happening?” And he looked at me and he said, “Oh, no. That robot knows a lot more than that.”
NARRATOR: Believing that Google would never retain the information they collected, Senator Figueroa backed off and amended her bill.
LIZ FIGUEROA: Unbeknownst to me, ultimately, they were going to store the information, and that’s why they were against it. And I think it was also, “We don’t want legislators interrupting our business model.” They were going to move forward. And the whole tech industry went against the bill.
CHRIS HOOFNAGLE: I believed then, and still do, that Gmail was a privacy disaster. The moment you allow people to look at the content of your communication for some advertising purpose is the moment that the government is going to come along and say, “If you’re going to let them listen in for advertising, why don’t you let us listen in for anti-terrorism or for serious crimes?” And it becomes very difficult for courts to say that the private sector can listen in, but the government can’t.
NARRATOR: In fact, much more listening, and looking, was about to happen.
NEWSCASTER: How big an impact has Facebook had on our lives?
EXPERT: It’s huge, half a billion users. I mean, in terms of sheer volume—
CHRIS HOOFNAGLE: My friends at the FBI say that they love Facebook. They love it. It is a fantastic tool to see who one communicates and associates with, what they’re interested in, et cetera.
TIM WU: Facebook realized that with the allure of a social network, people were willing to tell them just about everything about themselves.
JULIA ANGWIN, Author, Dragnet Nation: Advertisers are willing to pay for information about people, and Facebook has so much data about its members. So they got into this personal data business, collecting information about you and allowing advertisers to access it in order to sell you targeted ads.
NARRATOR: With millions of people posting on Facebook, the executives at Google became worried.
ANDREW McLAUGHLIN: There was a deep sense of anxiety inside Google that Facebook was nailing a new kind of interaction that Google was proving to be very clunky at doing.
JULIA ANGWIN: And I suspect that they thought, “Well, shoot, Facebook has something better to sell to advertisers. We need to boost our data trove, too.” And I think what happens is that it’s a race to build the best database.
TIM WU: So it begins what you might call the data wars, the idea that to really win in this game, you need to have the most data possible.
NARRATOR: To muster more firepower, Google had bought a leading Internet advertising company.
TIM WU: The DoubleClick acquisition consolidated the fact that Google was an advertising company.
STEVEN LEVY: They really became the most powerful company in the Internet ad world after that. One Google executive told me that they made a “staggering” — that was his word — amount of money from tracking where you’d been on the Web.
NARRATOR: DoubleClick had pioneered and refined the tracking of people’s Web browsing.
JULIA ANGWIN: When you go to a Web site, the Web site has the opportunity to drop a little file onto your computer called a cookie. And it’s basically a tracking number. It’s just an ID number attached to you. And anytime you go to another Web site that sees that ID number, they know, “Oh, it’s that same person.”
CHRISTOPHER SOGHOIAN: So a cookie is a unique identifier set by any Web site that your computer interacts with. And to be clear, it doesn’t have to be the Web site that you’re visiting. You visit any given site, and your computer will interact with dozens, if not hundreds, of servers run by different companies.
NARRATOR: Today, all the big Internet companies use advanced tracking technology, and the NSA has carefully studied their methods. For them, commercial tracking is an opportunity.
JULIA ANGWIN: The NSA sees all this data that’s flowing to these advertisers, and they’re thinking, “Look at all this data about people’s behavior that’s just flying out there to hundreds of different parties, and oftentimes not encrypted.” And so they can just snatch it.
NARRATOR: At The Washington Post, Bart Gellman was going through his Snowden files, thousands upon thousands of them, unpacking highly technical terms, engineering jargon and computer code. Then one day, he came across this slide. At first, he couldn’t understand it. He consulted with his colleague, Internet security expert Ashkan Soltani.
ASHKAN SOLTANI, The Washington Post: The slide indicated the use of a specific Google cookie, it’s called the pref cookie, that’s set by Google. Even if you’ve never been on Google.com, in fact, when you turned on your computer and opened the browser, you were likely to get one of these cookies.
[www.pbs.org: How to protect your data]
BARTON GELLMAN, The Washington Post/FRONTLINE: And we found out that the NSA was piggybacking on that. Of course, if you’re an NSA collections manager and you want to know, “How do I figure out,” you know, “where Bart was or whether he’s changed devices, or all this other kind of information about him, why don’t I just go and get that information that conveniently has been collected for me by Silicon Valley companies, who do it for their own commercial motives?”
ASHKAN SOLTANI: Because Google’s using a tracking cookie, the NSA can sit back and see all that stuff go by. They can monitor all of that activity, all those cookies, and use it in order to track your browsing history or inject malware into your computer. And if they sent you malware, it would take over your computer and essentially let them access all your data, all your keystrokes, all your passwords, et cetera.
NARRATOR: Before publishing, the reporters called Google for comment.
BARTON GELLMAN: And Google pushed back very hard. They said, “You should not be associating our commercial ad cookie technology with U.S. government surveillance.” And Ashkan said, “We can prove it. We can prove that they’re using this, that the NSA is piggybacking on your technology.”
ASHKAN SOLTANI: And I had their own material, indicating how it’s used to track people and how it’s an identifier. So we were going back and forth, and the Google person was insisting that this is not a tracking cookie. And I said, “Look, here’s some links. This is your own video on YouTube that you made in 2007 about this cookie and how it’s an identifier.”
GOOGLE VIDEO: Cookies remind us of your preferences from the last time you visited—
NARRATOR: As the article went to press, Google emailed an editor at the newspaper, claiming that Soltani had received funds from a foundation known for supporting privacy projects. Soltani says he never received the alleged funding.
ASHKAN SOLTANI: It was a personal hit on me, and that really surprised me, that they would go after me personally. And so my editor talked to Google and said, “Is anything technically wrong with the story?” And the person said, “No. In fact, it was very technically accurate.”
NARRATOR: The article had revealed the privacy risks associated with advertising. FRONTLINE asked Google for an interview, but they declined. All of the major Internet companies we called in the course of reporting this program refused to participate.
NEWSCASTER: Google, Apple, Twitter, Yahoo, Facebook— just some of the names represented over at the White House—
NARRATOR: On December 17, 2013, executives from Silicon Valley went to the White House.
NEWSCASTER: —some of the country’s top tech companies speaking with the president—
NARRATOR: They had been called in to advise the president on how to fix the administration’s troubled health care Web site.
STEVEN LEVY, Wired: That meeting was supposed to be mainly about Healthcare.gov, but the tech officials refused to go along with that agenda, and they made the NSA stuff the number one subject there. And they, you know, expressed pretty clearly how unhappy they were with the position that they’d been put in.
BARTON GELLMAN: They raised strong objections with President Obama. The heads and general counsels of major Silicon Valley companies tell the president that what he’s authorized and what the NSA is doing is doing huge damage to their global markets.
NEWSCASTER: —all of them deeply concerned with what the NSA has been doing and—
ANDREW MCLAUGHLIN, Google, 2004-09: We make a tremendous amount of money providing technology and on-line services and advertising and everything else to people around the world. And all of that goes away if people no longer trust the American government and the companies that are subject to its authority.
NEWSCASTER: It was another devastating blow for the NSA. Today’s report—
NARRATOR: The next day, the panel the President had appointed to review NSA policies and programs issued its report.
NEWSCASTER: —said those programs are important in the fight against terror—
NARRATOR: It found that some programs, like PRISM, had played an important role in preventing terrorist attacks. But it was sharply critical of bulk data collection, dragnet surveillance and the use of National Security Letters. It concluded that the NSA was overreaching and that Americans’ civil liberties were at risk.
RICHARD CLARKE, NSA Review Group, 2013: We say in the report our concern is about what happens after the next 9/11. In that moment of national panic after a traumatic attack on the United States, will we again throw out civil liberties? Will we again empower the government to erode a little bit of the Constitution? As long as the government has spent taxpayers’ money and built up this huge technical collection infrastructure, that could be abused at a time after some other tragedy. We’ve got to be damn sure, since we’ve built this thing, that it can’t be used against us.
NARRATOR: Over the last few months, there have been more reports about potential surveillance of smartphone apps and Webcam images and hundreds of millions of text messages, how the NSA is capable of recording all of a foreign country’s phone calls and is racing to build a computer that can defeat most kinds of encryption.
MICHAEL HAYDEN, NSA Director, 1999-05: Look, let me give you the existential complaint of the American intelligence community, OK? Here’s how it works, living inside America’s liberal democracy, of which, by the way, the Intel guys are really a part, OK? American political elites feel very empowered to criticize the American intelligence community for not doing enough when they feel in danger. And as soon as we’ve made them feel safe again, they feel equally empowered to complain that we’re doing too much.
NARRATOR: In late December 2013, Barton Gellman flew to Moscow. Snowden had agreed to meet.
BARTON GELLMAN: I went to a hotel that was arranged in advance. I got a phone call. He gave me a place to meet within a certain time period. And he showed up, he met me, shook my hand, said almost nothing, and led me away. And we moved to a place that he considered secure.
NARRATOR: Gellman interviewed Snowden for 14 hours over two days.
BARTON GELLMAN: I asked him the hard questions about being in Moscow, or about whether he thought any of these stories were doing damage, or you know, all the other things that people want to know when they’re thinking about his conduct.
I found a guy who was almost Zen-like in his serenity and his comfort with what he had done, that he had consciously decided he was willing to take huge risks to provoke a public debate. And he provoked a public debate that no one could possibly have foreseen.
EDWARD SNOWDEN: That’s a fundamentally dangerous thing to democracy—
NEWSCASTER: —surveillance that the president himself said was urgent—
Pres. BARACK OBAMA: You can’t have 100 percent security and also then have 100 percent privacy.
FACEBOOK EXECUTIVE: We take our role really seriously. I think it’s my job to protect everyone who uses Facebook and all the information that they share with us.
BARTON GELLMAN: So where we are now is in a place where we’re living behind one-way mirrors. Corporate America and law enforcement and national security state know so much about us, and we know so little about them. We know so little about what they’re doing, how they’re doing it. And we can’t actually hold our government accountable because we truly don’t know what it’s doing.
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