FRONTLINE tells the inside story of the U.S. government’s massive and controversial secret surveillance program that began in the wake of September 11 -- and the lengths they went to trying to keep it hidden from the public. (Aired 2014)
From the investigative team behind FRONTLINE’s award-winning “Money, Power & Wall Street,” comes the definitive history of domestic surveillance in a post-9/11 world. In part one of this two part series, FRONTLINE filmmaker Michael Kirk pieces together the secret political history of “The Program,” which began in the wake of Sept. 11 and continues today — even after the revelations of its existence by Edward Snowden.
>> That looks like a second plane... >> That just exploded.... >> NARRATOR: At the National Security Agency, they called it
0:09
"The Program." >> We are under emergency conditions. >> NARRATOR: Created after 9/11.
0:15
>> Extraordinary means are required to deal with the threat. >> NARRATOR: Collecting data
0:20
on American citizens. >> You're looking for unknown conspirators, and the way they devised to do that was to look
0:25
at everybody. >> NARRATOR: Secrets at the highest levels of government. >> A whole surveillance program without warrants.
0:31
>> Designed for domestic surveillance. >> What we're doing is lawful and I think is effective. >> NARRATOR: Through two
0:37
presidencies. >> This is a highly classified program. >> He was collecting the entire Internet stream. >> He chose to keep the programs
0:43
largely intact. >> That's not just data collection; that's digital surveillance. >> I argued it was unethical,
0:50
illegal and unconstitutional, and when this comes out, all hell is gonna break loose. >> NARRATOR: Next on Frontline,
0:57
"United States of Secrets." Episode one: "The Program."
1:06
>> NARRATOR: The biggest leak of government secrets ever began in December of 2012 with a
1:11
single email delivered to an IP address in Rio de Janeiro. >> Glenn Greenwald, one of the
1:17
world's busiest journalists, is sitting in his home in Rio, and he sees an email
1:23
from someone he doesn't know-- it's not a friend, it's not his mom-- and it just says, "I've got some stuff you might be
1:29
interested in." >> He didn't use his name, and he said very cryptically
1:35
and very vaguely that he had information that he wanted to discuss with me, but could only do so if I were to install
1:41
encryption. >> NARRATOR: Guardian newspaper columnist and blogger Glenn Greenwald didn't pay much
1:46
attention to the email. >> 99% of the time, it ends up that they're crazy or delusional, or the story
1:52
is just not very good. >> And this guy or girl-- we don't know who it is-- is persistent, so a few days
1:58
later emails again and says, "Look, Glenn, can you do this thing?" And Glenn still doesn't do it.
2:04
This attempt, basically, to leak all of these secrets initially just goes straight into the sand.
2:09
>> NARRATOR: The source moved on, this time to Berlin. He was soon exchanging emails
2:16
with American documentary filmmaker Laura Poitras. >> She had been in contact for
2:21
over a month with a mysterious source who had reached out to her using her encryption key and
2:28
using anonymous channels, and said he had a big story for her. >> NARRATOR: A few weeks later
2:34
in New York, Poitras met national security investigative reporter Barton Gellman at a
2:40
Greenwich Village restaurant. >> This was something she wanted to be exceptionally careful about.
2:45
We agreed on a cafe to meet at. We also, I think, both understood that when we got there, we'd move to someplace
2:51
else. >> NARRATOR: Poitras asked Gellman to vet the source and meet him electronically.
2:56
>> Her source, who became also my source, needed to take very special precautions in the usual
3:02
NSA style. And so he called me Brass Banner.
3:08
And he called himself Verax, which means "truth teller" in Latin. >> NARRATOR: Through
3:13
sophisticated encrypted messages, Verax promised an unprecedented scoop. But it came with a warning.
3:20
>> He believed he was risking his freedom and possibly his life. And he warned me as well that
3:29
if the U.S. intelligence community believed that by getting rid of me they could
3:35
prevent the story from happening, he said that my life would be at risk. >> NARRATOR: In late May,
3:41
Verax surprised Gellman and Poitras. He sent them an invitation. >> He said, "Your destination
3:47
is Hong Kong." >> NARRATOR: Poitras wanted to go. Barton Gellman, worried about
3:53
a secret meeting in a foreign country like China, decided not to.
3:59
But Poitras knew someone who might join her. That spring, Glenn Greenwald
4:04
arrived in New York to deliver a speech. >> And we met that night in my hotel, in the lobby.
4:10
And she showed me these emails that she had been exchanging with this person who was
4:16
claiming that he was a National Security state insider with access to very sensitive information that he believed to
4:21
be very incriminating, and stated very definitively that he wanted to turn it over to her
4:27
and to me. >> NARRATOR: Greenwald decided to join Poitras. >> We all knew that this was
4:34
incredibly risky and uncertain, but the story had to be reported.
4:41
>> NARRATOR: In June, Poitras and Greenwald headed to the airport.
4:46
>> I think they're kind of quite excited, but there's also a sort of feeling that maybe this is
4:52
just the most terrific hoax. >> NARRATOR: They were joined by Ewen MacAskill, a veteran
4:58
Guardian reporter. >> At the time, I didn't think it was for real, didn't take it that seriously, and thought it
5:04
was a slightly obscure story. >> NARRATOR: Once they were
5:10
finally airborne, Poitras thought it was safe to share with Greenwald something the source had
5:15
securely sent to her. >> And that's kind of quite a moment. They're in a secure space, and so Laura creeps forward to go
5:21
and see Glenn. >> Laura whips out this thumb drive and in a very sort of
5:27
almost mischievous way says, you know, "Guess what this is?" and told me that she had just received a fairly large archive
5:33
of documents. >> They kind of can't control their excitement because this is clearly the biggest story
5:39
that anyone has worked on since the Pentagon Papers in the 1970s. >> I didn't sleep one second
5:45
for the next 16 hours because the adrenaline made that impossible to do, because I not only saw
5:51
the magnitude of the documents, just the sheer quantity. The fact that we had in our
5:57
possession thousands, not dozens or hundreds, but many thousands of top secret NSA documents that
6:03
were about a wide range of surveillance activities, that
6:08
came directly from some of the most sensitive areas of the Agency.
6:14
>> I could see out of the corner of my eye Glenn with the light on throughout this 13-hour flight reading on his laptop all
6:22
the time, Laura coming to see him, them having chats, and Glenn getting more and more
6:27
excited. >> We essentially couldn't believe what it was that we had. And that was really the first
6:33
time I think I fully understood that this was going to be unlike any other story,
6:38
really ever, in American journalism or politics.
6:45
>> NARRATOR: In Hong Kong, Greenwald and the others traveled to a hotel in Kowloon.
6:52
>> Snowden's instructions to Glenn and Laura are like a kind of magical mystery tour crossed
6:58
with something out of John LeCarre. He tells them to go to a hotel, the Mira Hotel in Hong Kong, and
7:04
says that he will meet them in a less-trafficked part of the hotel, next to a shopping mall,
7:10
by a bench and a crocodile. >> We had still no idea of who
7:16
he was, what his age was, what his race was. We knew nothing about him demographically at all.
7:23
And so the plan that he picked was that he would be holding a Rubik's Cube in his hand so
7:28
that when he entered the room, we would immediately know who he was. >> All of a sudden, this guy
7:34
comes past with a Rubik's Cube-- scrambled up, which was part of the code-- but the man before
7:40
them is not what they'd expected. They'd expected some grizzled CIA veteran wearing a blue
7:46
blazer, maybe with a bit of dandruff, with a tie, receding grey hair.
7:51
And they get this callow, sort of thin-limbed student type who looks as if he's just
7:58
out of high school. And he is their source. And he's supposedly the guy who has got the crown jewels.
8:04
>> When this 29-year-old kid who looks a lot younger shows up, it was extremely
8:10
disorienting and introduced a real awkwardness to our interaction, and kind of a
8:16
shock. >> NARRATOR: Edward Snowden led the group upstairs to his room. >> In his bedroom by the door,
8:23
he'd piled pillows as high up the door jambs as he could, and pillows along the bottom.
8:29
So if somebody was outside eavesdropping, it would make it harder for them. >> There was always this kind of
8:35
uncertainty, one might even say danger, hovering over the room, especially for the first few days, because we didn't know
8:41
what the NSA knew about what he was doing. So we thought it was very
8:47
possible that the door could be barged down at any moment and someone could enter to arrest Snowden.
8:54
>> NARRATOR: They painstakingly debriefed Snowden for days. At one point, Guardian reporter
8:59
Ewen MacAskill sent a text message to his editor in New York, Janine Gibson. >> Janine knew that I liked
9:07
Guinness, so she said, "If Snowden is for real,
9:12
send me a message and just say, 'The Guinness is good.'" I was 100% sure that Snowden
9:19
and the documents were for real, and I sent a message to Janine
9:24
saying, "The Guinness is good."
9:32
>> NARRATOR: The documents Snowden delivered revealed the history and details of one of the United States government's
9:38
most closely guarded secrets. It was known as "The Program."
10:13
"The Program" began on September 11, 2001 at Fort Meade in Maryland.
10:18
>> Biggest story in Washington now: people talking about Michael Jordan's comeback. >> NARRATOR: The headquarters for the National Security
10:24
Agency. >> Does it look like September or what? >> I'm in my office. I remember the day, brilliantly
10:30
clear day, clear blue skies. >> I was in his suite, waiting for a meeting. And we had started up the
10:38
hallway to his office when the first plane hit the tower. >> We understand that a plane
10:43
has crashed... >> My executive assistant, a young woman, came in and said, "Hey, we got reports of a plane
10:49
hitting the World Trade Center." And like 300 million other Americans, I thought, "Wow.
10:54
Small plane, sport plane, accident, too bad." >> That looks like a second plane...
11:01
>> That just exploded... >> My poor Security Chief didn't even have a chance to speak.
11:06
I just turned to him and said, "All nonessential personnel out of here now." (explosion)
11:14
>> Oh my goodness, there is smoke pouring out of the Pentagon. >> Everybody had the TV on,
11:20
because the TV is where the news was. It wasn't coming out of NSA's computers.
11:26
It was on the TV, because we had missed the entire event. >> This is a live picture.
11:32
We are seeing the second... >> It was an enormous shock that you have this huge agency set up
11:39
to prevent a surprise attack, and they learn about it on a $300 television set tuned to CNN
11:47
in the director's office. >> NARRATOR: At the White House, there was chaos.
11:53
A near total evacuation. >> Secret Service bursts into the vice president's office,
11:59
basically frog marches him by one arm and the seat of his pants into this deep underground
12:05
shelter that was built to withstand nuclear war. >> NARRATOR: Almost immediately,
12:11
Cheney directed his lawyer David Addington to prepare the case for the president to exercise his unilateral authority as
12:17
commander in chief. >> David Addington, principally the vice president, was interested in ensuring that
12:24
the president's constitutional authority was used to its fullest.
12:29
>> Cheney says, "I want you to tell me what powers we're going to need, the President is going to need, that he doesn't already
12:35
have to respond to this calamity." >> And they decide that they're going to push every boundary
12:40
they have. Addington at one point says, "We're going to push and push and push until some larger force makes us stop."
12:46
>> Tours of the Capitol will be cancelled indefinitely. >> The FBI has received 4,000 reports of bombs...
12:52
>> NARRATOR: On September 12 at NSA headquarters, the mood was somber.
12:57
>> Where did it all begin? >> We began soul searching almost immediately.
13:03
We all felt like a great wrong had been done and that we were all somewhat if not all
13:10
culpable. >> A date that will live in infamy. >> You have to remember that
13:15
NSA was created after World War II to prevent another surprise attack. That was the whole raison d'etre
13:21
for NSA: Pearl Harbor. We don't want another Pearl Harbor. >> More people involved in the
13:26
plot remain in the United States... >> Immediately we began to wonder what we had done wrong,
13:32
why did we miss the boat, what didn't we detect that we should have detected? >> The investigation continues
13:38
in this country... >> NARRATOR: In the aftermath, troubling questions emerged from deep inside the agency.
13:43
>> Had lived for at least a year... >> NARRATOR: Why hadn't the NSA been able to connect the dots?
13:48
>> It was a very cautious agency. It's an agency that is fighting with one hand tied behind its
13:54
back out of fear of a political backlash by being too aggressive. >> The President now at the
14:00
door... >> NARRATOR: During the Nixon administration. >> A final wave... >> NARRATOR: The NSA had
14:05
overstepped: spied on Americans. >> Certainly appears to violate the 4th Amendment to the Constitution.
14:10
>> NARRATOR: Caught and restricted by Congress, the domestic spying apparatus went dark for more than 20 years.
14:16
It was against the law to turn the NSA on Americans. >> If you were an NSA analyst,
14:22
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
14:28
restrictive and it's hampered the NSA's ability to detect terrorist plots."
14:35
>> NARRATOR: Some at the agency thought the NSA had been overly cautious and believed the 9/11
14:41
attacks could have been stopped. >> I do believe it could have been prevented with revisions
14:48
to the way we were permitted to operate before 9/11.
14:56
(voice breaking): Revisions that I tried to get the general
15:02
counsel to embrace and wouldn't... and couldn't...
15:08
I tried to get them to make adjustments to how we were operating, how we were permitted
15:14
to operate, and they wouldn't do it.
15:19
I've felt this ever since it occurred, that over 3,000
15:25
people's lives were lost. And it's just a weight that
15:30
I am having trouble bearing. It's...
15:39
I'm sorry, I... >> The toughest week for America
15:44
since Japan bombed Pearl Harbor 60 years ago... >> NARRATOR: All over Washington, there was a growing
15:49
demand to stop the next attack. >> We have to remember that we had had terrorists living in this country for a number of
15:54
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 we
16:01
not only could not connect the dots, we could not collect the dots. >> NARRATOR: At the CIA,
16:07
director George Tenet was under pressure from the vice president. >> The director had a meeting
16:13
with Vice President Cheney and his top aide, David Addington, and he was asked,
16:20
"What can be done? What can be done that isn't being done?" >> 9/11 made necessary
16:25
a shift in policies. >> Cheney says, in effect, to Tenet, "Make me a shopping list. Tell me what you want to do that
16:31
we're not letting you do yet." >> NARRATOR: Tenet, whose own agency was designing covert operations against al Qaeda,
16:38
called General Hayden. >> George calls me and says, "Mike, any more you can do?"
16:43
I said, "George, no, not within my authorities, not within my current authorities." And he paused and said,
16:49
"That's not actually the question I asked you. Is there anything more you could do?" I said, "I'll get back to you."
16:55
>> NARRATOR: Hayden got the message. At NSA headquarters, he spread the word.
17:01
"Take the gloves off. Bring me an aggressive plan." >> And they asked me, "Is there
17:07
anything that we had that could have prevented 9/11?"
17:16
>> NARRATOR: Loomis told them what he believed was necessary: begin monitoring foreign
17:21
Internet traffic going through the United States. >> The U.S. Internet hubs
17:28
handle so much of the worldwide Internet traffic. So I said, "Let us allow
17:36
collection between U.S.-and-foreign/foreign-to-U.S. against the terrorism problem."
17:43
>> NARRATOR: But others in the agency were proposing much more aggressive data collection.
17:49
>> What they proposed to do is create a whole new surveillance program without warrants,
17:55
trapping all sorts of information, taking advantage of the fact that modern communication trunk lines
18:00
tend to come through the United States. >> The idea of this program was you're looking for unknown
18:07
conspirators, and the way they devised to do that was to look at everybody. >> NARRATOR: It was the outline
18:13
of something Hayden could take to the vice president. He headed to Washington to propose the idea.
18:19
>> One of the worst days in American history... >> NARRATOR: It would be his first meeting in the Oval
18:24
Office. >> There was a massive sell-off on Wall Street... >> Prior to 9/11, I don't think I knew General Hayden.
18:30
I probably knew his name. I doubt that the president knew his name. >> It's a very big change for the director of NSA to suddenly
18:36
have all this attention from senior officials in the White House and so forth.
18:42
And I'm sure it had a major impact on Hayden. >> NARRATOR: The president had been briefed.
18:48
He put his arm around General Hayden, called him his childhood nickname, "Mikey."
18:53
>> So I walk in to see the president. It's the president and the vice president in the room.
18:59
Almost certainly Condi was there, as the National Security Advisor, Andy Card would have been there.
19:05
>> Cheney suggests the question and George Bush asks it: "What would you like to do that you can't already do that would
19:10
help prevent another 9/11?" >> NARRATOR: Hayden outlined "The Program."
19:16
It would gather data on the phone calls and Internet traffic of hundreds of millions of Americans, then search it for
19:22
suspicious connections. But he was worried about whether it was legal.
19:28
>> And the first thing he says to me is, "Mike, I understand your concerns. But there are some things we're
19:34
going to have to do, and I think I have the authority to authorize you to do things
19:40
that you've outlined." >> The president says, "Go. I want you to go
19:45
develop a program. Come back to me. We've got the lawyers working on it, but you have my order.
19:52
We're going to do this." >> NARRATOR: Hayden left the White House knowing that
19:59
"The Program" was bound to be controversial. >> No president had authorized it prior to this time.
20:04
And Michael Hayden goes home after briefing the president and the vice president about his ideas for expanding surveillance
20:11
and takes a walk with his wife. >> And she said, "What's on your mind?" I said, "Well, we're going to do something here."
20:17
And I didn't go into any details. "We're going to do something. One day, it's going to be public, and when it gets public,
20:23
it's going to be very controversial and the people doing it are going to be swept into this thing."
20:29
And she said, "Uh-huh. Is it the right thing to do?" I said, "Yeah, I think so."
20:35
She said, "Okay, we'll deal with that when it comes."
20:40
>> NARRATOR: On October 4, in a secret signing with Cheney, the president officially
20:45
authorized "The Program." >> That order is written by David Addington, the vice president's lawyer. It's not written by the
20:51
president's lawyer. And this is not only unusual but probably unique in the history of major U.S. intelligence
20:58
operations: it's written by the vice president's lawyer and stored in his own safe.
21:03
>> NARRATOR: Addington worked out of a small office next to the White House in the old
21:08
Executive Office Building. >> This order is one of the most closely kept secrets of the
21:14
Bush/Cheney administration for four years. It's kept so secret that many
21:19
people involved in national security inside the White House and the government don't know about it.
21:24
>> NARRATOR: Addington personally hand-carried a copy of the secret document out to Fort Meade.
21:33
>> He said, "I'm coming out. I'll be there in about 30 minutes." Hand-carried.
21:39
This was very closely guarded that we were doing this. And he comes onto the campus at
21:45
Fort Meade, up to the top deck, and hands me the order. >> NARRATOR: Now General Hayden
21:50
wanted the sign-off of his top lawyer, Robert Deitz. >> I think he was concerned and
21:55
wanted my view of whether this program was lawful. I spent a kind of sleepless
22:02
night pondering the legality of it. This was a very hard call.
22:09
It was a very hard call. >> The NSA has a general counsel and about 100 lawyers.
22:14
And they were told, "The president has signed it, it's been certified as lawful, and once all the signatures are
22:21
there, that's it, we salute. We say, 'Okay, it's lawful, we're going to go ahead.'"
22:26
>> In the intel world, if a president says to you, "I need this in order to keep
22:33
the American people safe," you need to try to figure out where that line is constitutionally
22:40
and march right up to it. >> NARRATOR: Two other NSA lawyers would also sign off
22:46
on "The Program." >> We came to the conclusion independently but consistently
22:54
that there was no doubt in our mind that it was a legitimate use of the president's Article 2
23:00
authority. >> NARRATOR: General Hayden had heard exactly what he needed. Article 2: the president's
23:06
authority as commander in chief. >> I had my three good friends here, who have been my guardian
23:12
angels on these things since I became director, saying, "This is good."
23:19
>> NARRATOR: Now the massive collection of data could begin. >> Who is emailing whom? Who is texting whom?
23:26
Who is doing Skype calls with whom? They're collecting a lot of information, a lot of content
23:31
of phone calls. They are actually recording the voices. Not for all of our calls, but
23:37
for a lot of U.S. telephone calls. And they were doing this
23:42
under an authority that had never existed before. >> NARRATOR: It would be General Hayden's most closely guarded
23:48
secret. Only a small handful of NSA employees knew what the
23:53
president had authorized. Most were kept out of the loop, including this man:
23:59
senior manager Thomas Drake. >> My first day reporting on the job was the morning of 9/11.
24:06
>> He had been in the military, he'd been in the Air Force. He's devoted his life to
24:13
national security issues. He's a computer genius of a sort.
24:19
>> NARRATOR: Drake had no idea what had been going on between Hayden and the White House. He had been given a different
24:26
task. >> I was actually charged to find "Whatever you've got in the labs, whatever you've got in
24:31
your agency, even if it's not operational, put it into the fight.
24:37
We need it, it might help us. We need to deal with the threat." >> NARRATOR: But according to
24:42
the rules Drake thought he had to follow, whatever he found had to safeguard Americans' privacy.
24:48
He started by digging around inside the deepest reaches of the NSA's secret R&D programs.
24:55
>> And he stumbles into sort of a skunkworks, and he discovers
25:01
that there was actually a program before 9/11 that could have, as they said, eavesdropped
25:08
on the entire world. It's called ThinThread. >> NARRATOR: ThinThread,
25:13
a program that could capture and sort massive amounts of phone and email data, was
25:19
the brainchild of veteran crypto-mathematician Bill Binney. >> The whole idea was to build
25:24
networks around the world of everybody and who they communicate with. Then you could isolate all the
25:30
groups of terrorists. Once you could do that, you could use that metadata to select the information from all those tens of terabytes going
25:36
by. >> NARRATOR: But to make sure the NSA would not spy on U.S.
25:41
citizens, Binney and the other analysts had built in privacy protections.
25:48
>> It anonymizes who it's listening in on, unless there's a court warrant that makes the
25:54
identity of that person clear. >> If you knew that it was U.S. person-related, it would be
26:00
automatically encrypted. That was part of the design of ThinThread.
26:05
>> It had a data privacy section.
26:11
That was working very well, protecting citizens and innocent people by encrypting
26:17
the data and not allowing analysts to look at it even. >> NARRATOR: Drake was ecstatic.
26:23
The experimental program could monitor massive amounts of data, but the encryption
26:28
would protect the privacy of individual Americans. He took it upstairs to the top deck.
26:34
>> In those short days and weeks after 9/11, I put together a two-page classified implementation plan to put
26:40
ThinThread into the fight, and I presented it to Maureen Baginski. >> NARRATOR: Baginski was
26:47
Drake's immediate superior: the third highest ranking official at NSA. >> It took awhile to get
26:52
any kind of response. He felt there was something strange going on. >> She would refuse to see me.
26:58
None of her responses were ever electronic. None of her responses were in a form that would be
27:03
recorded or saved. >> Finally, he wrote a memo, sent it to her, and instead of
27:10
responding electronically, which would have been normal, she wrote in a big, black felt pen.
27:16
>> It was kind of a modified cursive. And she said, "They've gone with a different program."
27:22
>> When Drake asked her what this other solution was, she said, "I'm sorry, I can't tell
27:28
you." >> NARRATOR: It didn't take long for clues to emerge that
27:34
something much bigger was going on. >> They started seeing stacks of
27:39
servers piled in corners and so forth. >> So we had to walk way around
27:44
all this hardware that was piling up out there. And so we knew, you know, something was happening.
27:50
>> All of a sudden, people who normally would communicate with each other were keeping secret
27:58
this new operation of some sort. >> NARRATOR: Dozens of NSA employees were sworn to secrecy,
28:05
but before long, details were leaked to Drake. >> I have people coming to me
28:11
with grave concerns about, "What are we doing, Tom?
28:17
I thought we're supposed to have a warrant. I'm being directed to deploy
28:22
what's normally foreign intelligence, outward-facing equipment, I'm being now
28:27
directed to place it on internal networks."
28:35
>> NARRATOR: At the same time, Bill Binney and the ThinThread team heard that "The Program" was using ThinThread
28:41
but stripping out the privacy protections. >> What they're hearing is that
28:47
the program they designed is in some form being put into use,
28:54
but without the protections that they had designed in.
28:59
>> What they did was they got rid of the section of the code that encrypted any of the
29:04
attributes of U.S. citizens. >> NARRATOR: Even Ed Loomis, who had wanted a more robust
29:11
approach, was surprised at how far the agency was willing to go. >> I just refused to believe,
29:18
after all I had been through for 37 years, that all of a sudden
29:24
things would change and they'd go back to the old ways, back to the early '70s.
29:30
I didn't believe that they could possibly have just flip-flopped and gone 180 degrees the other
29:37
way. I just didn't believe it. >> NARRATOR: To the ThinThread team, collecting data without
29:43
a warrant seemed like a direct violation of the rules they had followed for years.
29:48
>> All these years having grown up, you never spy on Americans. We had suddenly become criminals
29:55
by association. The agency had gone down a path
30:01
that we had been preached to you never do. We were very, very,
30:08
very concerned. >> NARRATOR: And the fact that their ThinThread system had been
30:13
incorporated into the program was the last straw. >> We said, "We can't stick
30:18
around and be a party to this. We can't be an accessory to all these crimes, so we have to get out."
30:24
>> NARRATOR: At the end of October 2001, Bill Binney, Kirk Wiebe and Ed Loomis
30:29
all quietly retired. Tom Drake stayed behind. >> So Drake is now still working
30:37
away over at the NSA with his worries rising about what's going on in terms of domestic
30:42
surveillance. >> NARRATOR: Once again, Drake confronted Maureen Baginski.
30:48
>> I made one final attempt, one final appeal to Maureen
30:54
Baginski, and she demurred and she simply said, "Call the
30:59
Office of General Counsel," which I did. And I said, "I want to speak
31:05
to the lead attorney." She'd given me the name. "I want to speak..." It was Vito Potenza.
31:10
>> He goes to the general counsel's office with his concerns and says, "I think
31:16
this program may be illegal." >> He proceeded to tell me, "You don't understand.
31:22
All the lawyers have approved it. It's legal. We are under emergency,
31:29
emergency conditions. Extraordinary, extraordinary means are required to deal
31:35
with the threat. We just need the data." And then the most chilling... I don't often have said
31:41
this part of the conversation: "Don't ask any more questions, Mr. Drake." >> If he came to me, someone who
31:47
was not read into the program, right, and not a part of what we were doing, and told me
31:54
that we were running amok, essentially, and violating the
31:59
Constitution, and it was in that time frame when there was an
32:04
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,
32:11
you know, "Go talk to your management. Don't bother me with this." I mean, you know, the minute
32:17
he said, if he did say, "You're using this to violate
32:23
the Constitution," I mean, I probably would have stopped the conversation at that point,
32:28
quite frankly. So I mean, if that's what he said he said, then anything after that I probably wasn't
32:35
listening to anyway.
32:40
>> NARRATOR: "The Program" was continuing to grow. In secret, the nation's largest
32:45
telephone companies were now giving the NSA the private call records of millions of Americans.
32:51
Tom Drake had hit a dead end inside the agency.
32:59
That fall, Bill Binney took an extraordinary step. He decided to break ranks:
33:05
to take the matter to Congress. >> The next move is to try
33:10
to get some cooperation from Congress, from the Senate and House Intelligence Committees.
33:16
And he finds an ally in Diane Roark, who felt the same way.
33:22
>> NARRATOR: Diane Roark was a top congressional intelligence staffer. >> I worked at the House
33:27
Intelligence Committee for 17 years. And for the last five of those years, I had the NSA account
33:33
for the Republican majority. >> She's an interesting character. She's very conservative.
33:39
She's a Republican. She is in oversight of the NSA partly to make it powerful
33:45
and also to keep it from wasting money. >> NARRATOR: Porter Goss was Roark's boss.
33:52
Goss was the powerful chairman of the House Select Committee on Intelligence and future
33:57
CIA director. >> Diane is the go-to girl on the House Permanent Select Committee on matters dealing
34:03
with NSA. So she spent a fair amount of time at NSA. She knew personnel out there.
34:10
>> NARRATOR: Binney and Roark decided it would be safer to meet away from her congressional office.
34:15
>> Bill came to me at my house and told me that part of their system, their ThinThread system,
34:20
was being used for collection of domestic communications in a
34:26
dragnet fashion, collection on everybody. >> So Diane says, "They have
34:31
gone rogue," you know? That was her point: she thought they were going rogue.
34:37
>> I was aghast. I was absolutely aghast. Because NSA had... because this constituted a
34:44
complete reversal of NSA policy. >> Roark is a very feisty woman.
34:49
She was just certain that there was no way that this program was legal, and she said, "And if the
34:55
NSA officials are breaking the law, I am going to fry them."
35:02
>> NARRATOR: Roark began to distribute a series of searing memos to the leaders of the House Intelligence Committee.
35:09
>> Diane was very capable, so good that she pierced the veil of a program that she was not
35:15
briefed on, not cleared for, but knew something was going on. >> I updated them on what was going on, explained to them
35:23
the... all the technology in as simple a way as I could.
35:29
And I argued very strongly that they needed to have the
35:36
protections restored. I told them that if they did not... if the administration
35:42
refused to do this, they should insist that the system be killed, be stopped.
35:51
>> NARRATOR: What Roark did not know was that in October, the White House had invited a small group of congressional leaders
35:57
to a secret briefing in the vice president's office. General Hayden led the briefing.
36:02
>> Mike Hayden is particularly good at coming in and explaining things in a way that, shall we
36:08
say, neophytes in the business could understand it.
36:13
And you really wanted to believe what Mike had to say and absorb
36:19
it and digest it rather than question it. >> He has very facile command
36:26
of the facts. He's also very good at eliding past the parts that he doesn't
36:32
think you want to hear, and using very careful language to avoid saying things he doesn't
36:38
want to say while also avoiding any outright falsehood.
36:43
>> Our purpose in this was to get the other political branch involved in this program.
36:49
And so we would be defeating our own purposes, working against our own goals, if we weren't
36:55
full monty to these folks. >> NARRATOR: But as open as
37:01
Hayden says he was, he and the vice president's office created strict conditions for the briefing.
37:07
>> You have the individual senator or member of Congress who is brought in and read into a program.
37:13
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.
37:19
In some instances, they're not lawyers, so they may not understand all of the legal fine points. In most instances, they're not
37:25
technologists, so they may not be able to grasp what it is precisely that they're being briefed on or the implications
37:30
of it. >> 14 people were killed and scores were wounded... >> NARRATOR: They returned
37:36
to Congress, some now feeling they were unable to exercise effective oversight of the
37:41
program. By the summer of 2002, it was running full speed.
37:48
>> And I argued with everybody that I met, and I got no
37:54
refutation from them. I said it was unethical, immoral, politically stupid,
38:01
illegal and unconstitutional, and stop. And when this comes out, all
38:08
hell is going to break loose.
38:13
>> NARRATOR: Finally, intelligence committee chairman Porter Goss had had enough.
38:18
>> I said, "You need to talk to General Hayden, and you also need to know that concerns of
38:24
the areas you're talking about are known to me. And I'm not going to discuss,
38:30
because you're frankly not cleared for this level of program or what's going on here.
38:35
But the fact that you have discovered this means that you need to talk to General Hayden." >> NARRATOR: Roark was summoned
38:42
to the top deck at the NSA to meet with Director Hayden. >> My whole point in going there was to ask him why he had taken
38:49
off the protections: the encryption and the automated tracking. I asked this any number of
38:56
times, and he always evaded answering. And I finally just decided I was
39:02
not going to leave the room until I got an answer. And so I kept asking. And so about the fifth time,
39:08
he looked down, and I remember he could not look me in the eye, and he said, "We have the power.
39:15
We don't need them." And he made clear that the power he was referring to was the
39:20
commander in chief's wartime authority.
39:25
>> It's awkward for me having the conversation, because she's not been briefed on the program, all right?
39:31
So to a certain level of detail, I simply respond that I disagree
39:36
with both of her conclusions. I think what we're doing is lawful, and I think what it is we're doing is effective.
39:43
And if I knew of a better way of doing it, I would do that too. >> Toward the end of the
39:49
meeting, General Hayden made it pretty clear that he wanted me to stop lobbying against the program.
39:55
>> I said, "Look, Diane, this is going to become public. And when it becomes public, you can argue your point
40:00
and I can argue mine." >> And so instead of allaying my concerns, this actually
40:06
made me far more worried. It was clear to me that he didn't like my talking to other
40:11
people in the executive branch and on the House Intelligence Committee and trying to convince them to put controls on the
40:17
program. >> NARRATOR: For now, Hayden's secret was secure.
40:29
>> Leaders are in strategy sessions determining the next step in America's new war... >> There's a growing
40:34
uncertainty, like Sandra said, about... >> NARRATOR: By early 2003, keeping "the president's program" secret was about
40:40
to become harder. >> Few answers so far... >> NARRATOR: In a small office at the Department of Justice,
40:46
attorney Thomas Tamm had just started a new job. >> I went in with a lot
40:51
of patriotic fervor. I work with agents, FBI agents primarily, to try and develop
40:59
intelligence about people that we thought were foreign agents or terrorists. >> He came from a family
41:06
of FBI agents. But not just any FBI agents. His uncle was one of the top
41:13
aides to J. Edgar Hoover. His father had also been a
41:19
senior official under J. Edgar Hoover. >> NARRATOR: Tamm would work
41:25
with one of the most secretive institutions in Washington: the Foreign Intelligence Surveillance Court--
41:31
the FISA Court. >> It was on the sixth floor and
41:36
only one elevator went up there. And it was literally in a bank vault because they were worried
41:41
about the Soviet Union overhearing what was going on. >> Good evening.
41:47
President Nixon reportedly will announce his resignation tonight... >> NARRATOR: The FISA Court had been set up to act as a watchdog
41:54
after those revelations during the Nixon administration that the NSA had been spying on Americans.
41:59
>> When that came out, you saw a period of reform like none other
42:05
we'd seen, like nothing we'd seen before then, and frankly, nothing since.
42:10
>> NARRATOR: Under the reforms, the NSA could conduct surveillance inside the United
42:15
States only if the FISA Court issued a warrant. >> You can turn your ears
42:20
outward, but not inward. You can listen all you want abroad, but you really cannot
42:26
do that to Americans unless you have a warrant. >> NARRATOR: And inside the
42:32
Department of Justice, it was Thomas Tamm's job to prepare warrants for the FISA Court.
42:38
>> The law specifically said that if you didn't go through the court, you were committing a federal felony.
42:45
>> NARRATOR: But then as Tamm began working on terrorism cases, he discovered something surprising:
42:51
evidence of "The Program." >> There are references to wiretaps and information that hadn't come through FISA
42:58
warrants. So the question is, "Where did they come from?
43:04
Where did the government get this information?" >> NARRATOR: Tamm learned that
43:09
hardly anyone at the DOJ knew details about what was going on. >> I asked a supervisor of mine
43:16
if she knew what "The Program" was about, and she told me that
43:21
she just assumed that what we were doing was illegal, and she didn't want to ask
43:26
any questions. >> NARRATOR: Tamm became concerned.
43:31
>> They were conducting electronic surveillance without getting warrants, and using that
43:37
information then to develop probable cause and basically not informing the court of the
43:42
source of the information. >> NARRATOR: Tamm and others at the DOJ, unaware of the secret
43:49
presidential order, wondered if Attorney General Ashcroft was doing something illegal.
43:54
>> It just kind of ate away at me and kind of came to a head
43:59
when I ran into one of the deputies of the unit who said that there was a chance that
44:06
for the first time ever, that a sitting attorney general would be indicted.
44:13
>> NARRATOR: Tamm says he tried to take his questions up the chain of command without success.
44:18
>> He was quite disturbed by that, was quite disturbed that he wasn't getting answers
44:24
to the questions he was asking. >> NARRATOR: Eventually, Tamm decided to take a risky step.
44:30
He headed up Pennsylvania Avenue to Congress for a secret meeting with a powerful senate staffer.
44:36
>> I said, "Does Congress know what we're doing with regard to this program?"
44:41
And she said she couldn't tell me. And I said, "Well, then I think maybe I will go to the press."
44:47
And I remember her last comment was, "You know, Tom,
44:52
whistleblowers frequently don't end up very well." And I told her, yeah,
44:57
I understood that. >> In Baghdad, a bomb
45:02
last night set portions... >> NARRATOR: In the fall of 2003, the White House got involved in filling
45:09
an important vacancy at the Justice Department. >> The Justice Department needs
45:14
a new head of the Office of Legal Counsel, which is a very powerful position. Cheney and Addington
45:19
get together and say, "Who should we pick?" >> NARRATOR: David Addington had a candidate in mind for the job:
45:25
Jack Goldsmith. >> Jack Goldsmith is impeccably credentialed, a member of the
45:31
Federalist Society, well-known and liked in the conservative movement. David Addington calls Goldsmith
45:37
in and interrogates him about a few of his lesser known positions and, "What would you
45:43
think about this or that?" And he's convinced Goldsmith, like he himself, is a true believer and is going to be
45:48
making the right decisions. >> NARRATOR: With Addington's blessing, Goldsmith became the new head of the Office of Legal
45:55
Counsel, charged with reviewing the legality of the administration's most secret operations.
46:01
>> I was being briefed into a lot of programs: classified programs,
46:06
counter-terrorism programs. I was extraordinarily naive. I had a sense that this was
46:12
an important job. I did not have a full sense of the nature of the issues
46:18
or the pace. >> NARRATOR: Before long,
46:24
Goldsmith headed for David Addington's office. It was time to learn about "The Program."
46:30
>> Jack, like most of the others who are briefed on this, walks into Addington's office, which he regards as a little bit
46:35
peculiar, "What's this doing in the vice president's lawyer's office?" Addington opens the safe and
46:41
pulls it out. There's the red cover-- it says "Top Secret/ SI/COMET/STELLARWIND,"
46:48
the cover name for this program. >> NARRATOR: As he read the document, Goldsmith began to
46:53
have grave doubts. >> The program was an example of the administration going it
47:00
alone in secret based on inadequate legal reasoning and
47:05
flawed legal opinions. >> NARRATOR: Goldsmith discovered that as part of the
47:10
program, the government had been tracking data about the emails of tens of millions of Americans.
47:16
>> He said, "You can't justify the email collection. It is, on its face, a clear
47:22
violation of the 4th Amendment and perhaps the 1st Amendment as well." >> NARRATOR: Addington was
47:28
furious that Goldsmith would raise questions about "The Program," and he let him know. >> He was very tough in making
47:35
his arguments. He was very sarcastic and aggressive against people with whom he disagreed,
47:41
and dismissive oftentimes. And he acted with the implicit blessing of the vice president.
47:47
So all of these things made him a very, very forceful presence. >> You know, David pushed,
47:52
he pushed everybody. He pushed me. Even when I was the attorney general, he would push me.
47:57
So that was just David's nature, and I think Jack didn't appreciate being pushed sometimes.
48:02
>> He was daring Jack Goldsmith to say, "This is illegal and you've got to stop it." He never believed that Goldsmith
48:08
would do it. >> Goldsmith tells him, "We're going to pull back our endorsement of the legality of
48:13
this program." And Addington roars at him and says, "If you do that, the blood of 100,000 people killed in the
48:20
next attack will be on your head." >> NARRATOR: For Cheney, Addington, Gonzales, Hayden and
48:27
others, the personal stakes at this moment were extremely high. >> It was a felony to conduct
48:33
this kind of surveillance in the United States. And everyone was relying on the
48:38
shield that they were trying to create of having the president order it explicitly and have the attorney general sign off and
48:44
say, "It's lawful." And as soon as the Justice Department starts to say, "We're
48:50
not so sure this is lawful," there is a great deal of concern and anxiety.
48:58
>> Five separate car bombs blew up in a span of 45 minutes... >> A bomb last night set portions of the old city
49:04
ablaze... >> NARRATOR: At the Justice Department, they prepared for conflict with the White House. Goldsmith's boss, deputy
49:10
attorney general James Comey, delivered the news to John Ashcroft: parts of the program
49:16
appeared to be illegal. >> They go to the attorney general, John Ashcroft. They say, "We don't think
49:22
this is legal. We think we need to get this changed. We need to stop what's going on because we don't have a
49:28
solid foundation to go on." >> NARRATOR: Ashcroft was supposed to sign a
49:33
reauthorization of the entire program every 45 days, and for two and a half years, he had.
49:39
But now he balked. >> Ashcroft gives Comey his verbal assurance that he is not
49:45
going to go along with this program and that he is going to demand changes or he won't sign. >> NARRATOR: Then just hours
49:53
later, Attorney General Ashcroft collapsed, suffering from severe pancreatitis.
50:00
James Comey was now the acting attorney general. >> Comey notifies the White
50:06
House formally that he's not going to sign, and we're now within 48 hours of
50:12
expiration of this program. >> NARRATOR: With the deadline looming inside the White House,
50:17
Alberto Gonzales, chief of staff Andrew Card and David Addington headed to Attorney General
50:23
Ashcroft's hospital room. >> We went to the West Wing, picked up David, who had the authorization.
50:29
We get to the hospital and I tell David to stay back because there was history between David and the Attorney General
50:34
and I didn't want to aggravate the Attorney General needlessly. >> Janet Ashcroft, the attorney
50:40
general's wife, is very alarmed. She calls up Ashcroft's chief of staff and says, "Oh my God,
50:47
they're coming over." Ashcroft's chief of staff calls Comey, the deputy.
50:52
Comey is in a car on his way home. He has the driver make
50:57
an actual U-turn. They slapped the flasher and the siren on, and he heads over to that hospital
51:04
as fast as he can go. >> It was the evening, about 8:00, and I got a call from the Justice Department
51:10
command center. So I rushed to the hospital, double parked, ran up the stairs.
51:16
>> NARRATOR: Goldsmith and Comey waited in Ashcroft's room. >> He had tubes going in and out of him.
51:21
He looked ashen, and I actually thought he looked near death. I thought he looked just
51:26
terrible. In walked Alberto Gonzales, the White House counsel, and Andrew Card, the president's chief of
51:32
staff. >> We get to the hospital and General Ashcroft is laying
51:37
in bed. And as soon as we got there, I said nothing other than,
51:43
"Sorry you're feeling bad." And Judge Gonzales said,
51:48
"We have brought the document. Here is the document." >> Attorney General Ashcroft kind of lifted himself.
51:54
He arose from the bed, lifted himself up and gave about a two-
52:00
or three-minute speech or talk addressed to Gonzales and Card, in which he basically...
52:06
I can't get into the details, but he showed enormous, unbelievable clarity
52:12
about what the issues were and what was going on. And he explained why he also
52:17
would not approve the program. And he read them a bit of the riot act, and then he said...
52:23
At the end of all this, he said, "In any event, I'm not the attorney general now. Jim Comey is," because Jim Comey
52:30
was the acting attorney general. And with that extraordinary performance-- and it was just
52:35
amazing, one of the most amazing things I've ever seen in my life, because he went from seeming, you know, near death to
52:41
having this moment, this amazing moment of clarity-- and he just again receded into the bed,
52:48
and I really worried at that point that he was going to expire. And I mean, it just...
52:55
it looked like he gave it the last of his energy. >> And so finally, when he repeats again he's no longer the
53:01
attorney general and is finished talking, Andy and I just said, "Thank you, we'll raise this with the deputy attorney
53:07
general," and we left. >> It was an intense, unbelievable scene.
53:12
And Gonzales and Card quickly left, and that was the end of it.
53:20
>> NARRATOR: In the wake of the hospital confrontation, at the White House, Cheney insisted the president should act on his own:
53:27
reauthorize all of the program even though the Justice Department said part of it
53:32
was illegal. >> Cheney and David Addington draft a new order.
53:38
And this time, it has one subtle difference. Instead of having a signature
53:43
page for the attorney general, "I certify the lawfulness of this order," there's a new
53:49
signature for the White House counsel, Alberto Gonzales, who does not have the same legal authority.
53:56
>> I satisfied myself that there was sufficient legal authority to move forward. And I felt that the president
54:02
was not a lawyer, and that it was my job, if I felt comfortable that it was in
54:07
fact lawful, to provide that signature. I did it because I wanted to protect the president.
54:12
That's why I signed that document. >> NARRATOR: But the White House wondered, "Would General Hayden
54:18
go out on a legal limb and continue the program?" >> David Addington calls me and
54:23
says, "Are you willing to do this without the signature of the attorney general? With the signature of White
54:29
House counsel Al Gonzales and authorization from the president?" And I thought and I said, "Yes."
54:37
>> NARRATOR: Hayden and Gonzales say their willingness was informed by something that happened just before the
54:43
Addington call. (explosions) >> In Madrid this morning, more
54:48
than 190 people were killed... >> After at least ten simultaneous bomb blasts... >> NARRATOR: It was one of the
54:53
worst terrorist attacks since September 11. >> Series of bomb attacks at three train stations during...
54:59
>> Given that starkness of the al Qaeda threat and given the ambiguity of the situation, I
55:04
thought the correct operational, legal and ethical decision was, "All right, we'll do this
55:10
one more time on a somewhat different framework."
55:16
>> So that was a point where he could have said, "I'm turning it off until we get a proper order
55:22
from the Justice Department." But he didn't. He went along with Addington and Cheney.
55:27
>> NARRATOR: That afternoon, President Bush reauthorized the program.
55:35
At the Justice Department, Jack Goldsmith prepared his resignation letter. >> I had drafted my resignation
55:41
letter and was prepared to resign, and I was sure I was going to resign that day. It was inconceivable to me,
55:46
based on what had happened the last two days, that I wouldn't resign. >> NARRATOR: Dozens of top DOJ
55:53
officials threatened to join him, including FBI Director Mueller and even Acting Attorney
56:00
General Comey. >> "And I would never be part of something that I believe to be fundamentally wrong.
56:06
With a heavy heart and undiminished love of my country and my department, I resign as
56:11
deputy attorney general of the United States, effective immediately. Sincerely yours,
56:16
James B. Comey." >> George Bush is on the edge of a cliff.
56:22
His presidency is at stake. This was going to be something on the order of two dozen, nearly the entire political
56:29
appointment list at the Justice Department, from the attorney general on down. And no president could survive
56:35
that in an election year.
56:40
>> NARRATOR: The next morning, the president decided to have a private talk with Acting
56:46
Attorney General Comey. >> After the national security briefing, Bush says to Comey,
56:51
"Stay a minute. Come talk to me." And Cheney starts to follow,
56:57
and Bush says, "No, no, this is just the two of us." And he says, "What's going on here?
57:02
How could you possibly do something of this importance at the very last minute?"
57:07
Comey suddenly realizes that the president had no idea what had been happening. The president thinks
57:12
this just began yesterday. He doesn't know it's been going on for three months. And so he says, "Mr. President,
57:18
if that's what you've been told, you have been very poorly served by your advisors." >> The president certainly
57:25
did not want a situation where the FBI director and the deputy attorney general would resign,
57:32
so he was not too happy to learn that this had risen to a level of angst that it had risen to.
57:41
>> NARRATOR: The president then sent for FBI Director Mueller. >> Mueller is waiting downstairs
57:46
a level, outside the Situation Room. Some aide goes and says, "The president wants to see you
57:51
right now, get in there." And Bush says to Mueller, "Go tell Jim Comey to fix this.
57:56
I withdraw the order. You go make it right."
58:02
>> NARRATOR: The warrantless email data collection was shut down. The crisis was averted.
58:07
But at the White House, they were determined to resume it. >> And so they're sort of sifting through the FISA law,
58:15
they're sifting through the Patriot Act trying to find existing laws, existing
58:21
authorities, you might call it loopholes, to justify these programs.
58:27
>> NARRATOR: General Hayden was sent to the secret FISA Court to convince a judge to restart it.
58:33
>> Could we get a court order to authorize this? And so we began a very aggressive program with the
58:39
chief judge of the FISA Court at that time, Judge Kollar-Kotelly, to take that part of the program
58:45
that had been stopped and present it to her to see if we could get an order to allow
58:51
that program to go forward. >> Hayden personally meets with Judge Kotelly of the FISA Court
58:56
on two Saturdays to make the pitch, to explain how they are
59:02
going to do this. And Kotelly eventually rules that this is legal:
59:08
that the NSA can indeed collect all of the Internet metadata
59:13
going to and from the United States. And they used this authority that previously was used to
59:20
trace numbers going to and from a single telephone...
59:27
for everybody. >> NARRATOR: Kollar-Kotelly's secret ruling relied on a
59:33
controversial interpretation of a 25-year-old Supreme Court case.
59:38
>> This was, frankly, a huge stretch. The idea that you could use this to justify the collection of
59:44
trillions of pieces of Internet metadata surprised a lot of people when it came out in the
59:50
Snowden archives. But that's where they went. >> NARRATOR: The program was
59:55
back on line, bigger than ever. >> That part of the program over which there was a grand dispute
1:00:01
in the spring of 2004 was resumed in large measure
1:00:07
under a different legal theory by the fall of 2004.
1:00:14
>> Bush on day two of his tour to defend the Patriot Act, this time in Buffalo, New York... >> In Buffalo, he continued
1:00:20
his push for an extension of the anti-terror law... >> NARRATOR: That same year, the president hit the campaign
1:00:25
trail, publicly arguing there was no warrantless surveillance program. >> Nothing has changed,
1:00:31
by the way. When we're talking about chasing down terrorists, we're talking about getting a court order
1:00:36
before we do so. >> Bush got up there several times and said, "When you hear about us wiretapping, that means
1:00:42
we're getting a court warrant." Well, we knew that wasn't true. He was leaving out this whole
1:00:47
other side of the equation in terms of the NSA operation. >> It's important for our fellow
1:00:53
citizens to understand, constitutional guarantees are in place when it comes to doing what is necessary to protect our
1:00:59
homeland, because we value the Constitution. Thank you for coming. >> NARRATOR: As the president
1:01:06
insisted the government always secured warrants, in Washington, that Department of Justice
1:01:11
attorney Thomas Tamm knew otherwise. >> I agonized for... probably
1:01:17
for months. I was upset, I would say, with what I thought was being done
1:01:22
to the way our government was supposed to work. >> NARRATOR: Tamm had not been
1:01:28
aware that Jack Goldsmith and the top echelon at the Department of Justice had nearly resigned.
1:01:34
But his concerns about the program had continued to grow. >> He agonized about this,
1:01:41
spent a lot of sleepless nights, wondered about what he should
1:01:47
do. >> It just kind of ate away at me.
1:01:52
It was pretty clear to me, at least, that I didn't want to keep participating in whatever was going on.
1:01:58
>> NARRATOR: Tamm decided to take a very big step, one dramatically out of character for the son and nephew
1:02:04
of high ranking FBI agents.
1:02:09
One day, on his lunch break, he slipped into a Washington subway station.
1:02:15
He used a pay phone to make an anonymous call to the New York Times. >> He said he was sweating,
1:02:21
nervous, looking around. He felt, he said, "like a spy"
1:02:26
when he made that phone call. But he did. >> I certainly was conscious of
1:02:32
the fact that if I were going to be found out-- and I did think I would be found out actually,
1:02:37
eventually, that there would be serious ramifications-- but I just thought it was important.
1:02:44
>> NARRATOR: Tamm says the phone call was to a New York Times reporter.
1:02:50
>> I had read articles by Eric Lichtblau with the New York Times.
1:02:55
I knew he was covering the Department of Justice. >> NARRATOR: Lichtblau will not confirm that Tamm was a source,
1:03:01
but acknowledges receiving a tip from an anonymous source. >> There was a suggestion from
1:03:06
one of the early sources that whatever was going on involving this supersensitive spy program
1:03:12
was causing such tumult and debate within the Justice Department that there's talk
1:03:17
of Ashcroft being indicted. That certainly gets your attention. >> NARRATOR: Tamm says
1:03:23
he and Lichtblau had a series of clandestine conversations around Washington.
1:03:29
>> I eventually told him my suspicions that a very, very limited people knew what it was
1:03:35
all about and that really some very experienced, high level
1:03:40
lawyers thought what the government was doing was illegal. >> NARRATOR: Having leaked,
1:03:45
Tamm disappeared back into the bureaucracy at the Justice Department.
1:03:51
At the Times, Eric Lichtblau knew that another reporter, James Risen, had also been
1:03:57
hearing about "The Program." >> We heard, basically, that the president had authorized a
1:04:03
warrantless wiretapping program. It was believed by the people we were talking to
1:04:09
to be in violation of FISA and of the Constitution.
1:04:15
>> They were doing things well outside their lane, without the knowledge of most of the court,
1:04:21
without the knowledge of most members of Congress, really, on the White House's own authority.
1:04:27
That was really what, in our mind, made the story. >> NARRATOR: Eager to get General Hayden on the record,
1:04:33
James Risen called the NSA. >> I told the press person that I needed to talk to Hayden immediately, and for a very
1:04:39
sensitive matter. And I didn't tell them exactly what it was. But to my surprise, she got him
1:04:45
on the phone immediately. >> I remember, I was sitting next to him and I did not know he was going to do that.
1:04:51
It was a bit shocking, not only that he was calling him, but also that he got Hayden on the line. >> I read him, like,
1:04:57
two paragraphs of the draft of the story. >> "Months after the September 11 attacks, President Bush secretly authorized the National
1:05:03
Security Agency to eavesdrop on Americans and others..." >> And you could hear, like, a sharp intake of breath, like...
1:05:09
(gasps) You know, it was almost like he was... He didn't want to say it, but he was like, "I can't believe you
1:05:15
got that story." >> I think this is a very bad thing. There is a reason we keep intelligence sources
1:05:21
and methods secret. It's the same reason journalists try to keep their sources and methods secret. You know, you can't survive
1:05:27
unless you keep them secret. >> I'd caught him off guard, and he had started to confirm it, and then realized what he was
1:05:34
doing, and hung up. >> NARRATOR: Hayden sounded the alarm: the New York Times
1:05:40
was preparing to expose the existence of "The Program" in the middle of an election year.
1:05:46
>> We were worried that this would compromise a very important, very significant intelligence activity.
1:05:52
There was a debate within the administration about what to do, should we try to get an injunction.
1:05:58
>> NARRATOR: The White House demanded a series of meetings with the Times. The first was inside the
1:06:03
Eisenhower Executive Office Building. Acting CIA Director John McLaughlin ran the meeting.
1:06:10
>> One thing I remember about his presentation was that he never actually confirmed that
1:06:16
they had such a program. >> They kept talking in these hypotheticals, like saying, "If we were doing this,
1:06:22
this would be very important to the government." >> The language he used, which was kind of Orwellian in a way,
1:06:29
was, "If the United States had such a program, we would request that the New York Times
1:06:35
not publish any information about it." >> And then I started taking notes and they tried to stop me
1:06:41
from taking notes. It was a very contentious meeting that only convinced me
1:06:47
further that the story was right and that they were trying to stop it.
1:06:53
>> NARRATOR: In meeting after meeting, the government made the argument "The Program" was both effective and legal.
1:07:00
>> One of the strongest selling points that they made, which to my mind was probably the most
1:07:06
disingenuous, was the idea that this had all been legally reviewed, this was all perfectly
1:07:12
legal, perfectly constitutional, everyone was on board. There was no doubt about its legality.
1:07:18
>> NARRATOR: Back in the Times offices, the reporters argued the White House was misleading them.
1:07:23
But the editors were not convinced the story should run. >> There were intense discussions, and it got
1:07:29
emotional on all sides. >> We argued that this was really important, that our sources were telling us it was
1:07:36
illegal or unconstitutional, that there was clearly people in the government who disagreed
1:07:43
with what the government, what the officials were saying to the editors.
1:07:48
>> NARRATOR: In the fall of 2004, the administration invited the Times' top editors to a
1:07:54
closed door meeting. Executive Editor Bill Keller met with the president's top
1:08:00
advisors: Condoleezza Rice, General Hayden, Alberto Gonzales
1:08:06
and others, who insisted to Keller that revealing the existence of the program would
1:08:11
endanger national security. >> I had a consensus of everybody that we had contact
1:08:18
with in the administration that this would be an extremely dangerous thing to do.
1:08:25
These were serious people, a consensus across the board of those who talked to us that
1:08:31
it was going to be dangerous, a level of stridency that was quite impressive.
1:08:37
And after much discussion, decided that we weren't ready
1:08:43
to go with it. >> NARRATOR: Keller spiked the story.
1:08:48
The White House had prevailed. The program would remain a well-kept secret. >> The president has ordered
1:08:53
a major shake-up of America's spy operations... >> The nuts and bolts of intelligence will fall to
1:08:59
Lieutenant General Michael Hayden, who now heads up the once super secret... >> NARRATOR: General Hayden was
1:09:04
promoted by the White House to help oversee all intelligence operations. He was replaced by a new
1:09:09
general: Keith Alexander. The change gave Tom Drake another chance to voice his
1:09:16
concerns about "The Program." He wrote General Alexander a classified letter.
1:09:21
>> Within the system, my last official act for all intents and purposes was to write that
1:09:28
formal letter to Alexander. >> NARRATOR: The letter said the NSA's intelligence gathering
1:09:34
activities were out of control and needed to be reined in.
1:09:40
>> This is a crusade for him. Being Drake, someone who's got a somewhat obsessive personality,
1:09:46
he keeps trying to get the word out. >> NARRATOR: But General Alexander was no more responsive
1:09:52
than Hayden had been, and by writing directly to the general, Drake had broken bureaucratic
1:09:57
protocol. His days were numbered. >> They actually reorganized
1:10:04
my job right out from under me, and I literally was left with nothing. I had an office, I had a flag
1:10:10
because of senior executive, but nothing else. No programs, no people, no team, no nothing.
1:10:17
>> NARRATOR: Drake had formed friendships with the ThinThread group: Binney, Wiebe, Loomis and Congress's Diane Roark.
1:10:24
Now they began to seriously consider what they called "The Nuclear Option": going to the press.
1:10:31
>> And I can remember throwing the question out there one evening. I said, "What do we do?
1:10:36
Tom's not getting anywhere." And so we would say, "Is it time to go to the press?
1:10:42
Invoke the nuclear option, which is going to the press?" And we were all afraid to do it.
1:10:48
>> We were still traditional kind of employees of the government and wanted to stay inside the government to try to
1:10:53
get the government to change its ways, to right itself as opposed to having to force it
1:10:59
by going to the fourth estate, the public. >> The third rail option of going to the press was fraught
1:11:04
with enormous peril. At a minimum, you would no doubt be fired, or worse.
1:11:14
>> NARRATOR: It had been nearly one year since the New York Times had refused to publish the investigation into the NSA.
1:11:21
During that year, "The Program" had grown dramatically.
1:11:27
Terabytes-- huge amounts of information about Americans' telephone calls and emails--
1:11:32
had been clandestinely captured.
1:11:39
Finally, reporter James Risen from the New York Times had had enough. He decided to strike out
1:11:44
on his own. >> The story was dead now, twice dead, and I thought the only way
1:11:52
to ever get this story out was to put it in a book. >> NARRATOR: Risen had a
1:11:57
surprise for Eric Lichtblau. He invited him to drive over to his house to read a draft
1:12:02
chapter of the book: the story the New York Times had refused to print. >> The chapter was just called
1:12:09
"The Program." And in it, he basically made known the existence of this
1:12:15
program and the fact that the administration had gotten the paper to spike the story.
1:12:20
>> I said, "I want to make sure it's okay with you." He said, "The only thing I ask is that you put my name
1:12:25
in there, too." >> NARRATOR: It did not take long for the editors at the New York Times to get word
1:12:31
of what Risen was planning. >> I began to hear through the grapevine that he might include the NSA story in the book.
1:12:37
So that led to a series of, you know, very awkward conversations with Jim.
1:12:44
>> The editors were furious at me. They thought I was being insubordinate.
1:12:49
>> He had a gun to their head. They're really being forced to reconsider. The paper's gonna look
1:12:55
pretty bad. >> That led to this massive game
1:13:04
of chicken between me, my book and the New York Times
1:13:10
over the next few months. >> NARRATOR: Inside the Times,
1:13:16
the editor who had killed the story 12 months earlier now faced a hard choice.
1:13:21
>> Because we had to either decide, "We're still not ready to run the story," or, "The situation has changed
1:13:28
sufficiently that we are ready to run the story," in which case we'd better get the story in the
1:13:33
best possible shape and let the administration know. >> NARRATOR: On a frigid
1:13:40
December evening, editors Bill Keller, Phil Taubman and New York Times publisher Arthur Sulzberger were summoned
1:13:46
to the White House. >> It was indeed a dark and stormy night.
1:13:51
I remember it. It was dark and it was stormy. And we were in the Oval. Mr. Sulzberger began to speak
1:13:57
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
1:14:03
this is important, why we think it saves lives, and why it should not be made public." >> NARRATOR: The president
1:14:09
turned the meeting over to General Hayden for one of his famous briefings. >> It's hard to brief in the
1:14:14
Oval. You know, you can't... no visual aids. Hard to roll out something in front of somebody.
1:14:20
So I gave them the best explanation of the program I could, but I did bring up specific examples. >> The example he gives them is
1:14:26
a plot in which a radical was planning to bring down the Brooklyn Bridge, apparently with a device similar to a blowtorch.
1:14:32
And it actually kind of makes the Times editors kind of scratch their heads, because they think this is kind of
1:14:38
surprising, that somebody can sit there with a blowtorch or something like that and bring down the Brooklyn
1:14:44
Bridge without anybody noticing him and stopping him first seemed absurd to them. >> I think Arthur believes that
1:14:50
the president may have cracked a smile when the "Bringing Down the Brooklyn Bridge" item came up, but maybe that's just
1:14:56
a wishful memory. >> NARRATOR: The president then played his trump card,
1:15:03
threatening that the New York Times would be responsible for the next attack. >> He said, you know, "Listen,
1:15:09
if you guys publish this article and there is another 9/11, we're going to be called
1:15:16
before Congress to explain how we failed to prevent it, and you should be in the chair beside us
1:15:22
explaining, because you'll be complicit in allowing damage
1:15:29
to our country." He was saying, in effect, "You,
1:15:34
Arthur Sulzberger, will have blood on your hands if there's another attack that could've
1:15:39
been prevented by this program." I think anybody would feel
1:15:47
goosebumps. >> The New York Times broke the story about the National
1:15:52
Security Agency... >> NARRATOR: Nevertheless, the Times decided to publish the story, revealing the existence of "The Program."
1:15:59
>> Four years now, the NSA has been secretly spying on its own citizens...
1:16:04
>> The New York Times story in December 2005 just shocked the world.
1:16:09
>> Unchecked domestic surveillance is far greater than previously reported... >> It is the definition in most
1:16:16
people's minds of illegal government activity. >> With a bombshell of a story in the New York Times today that
1:16:22
the NSA... >> NARRATOR: They were in crisis mode at the White House. All eyes were on President Bush.
1:16:28
>> We call it the big pause, okay? When stuff like this goes public, what's the big guy
1:16:35
going to do? Is he going to man up and support you, or suddenly
1:16:41
get reflective on you? >> And for once, the president actually decides he's going to
1:16:46
come out and address it directly. He goes on the offensive to try to push back against critics
1:16:53
who said he went too far. >> NARRATOR: It would be a first: an admission the program existed.
1:16:59
>> This is a highly classified program that is crucial to our national security.
1:17:05
Its purpose is to detect and prevent terrorist attacks against the United States,
1:17:12
our friends and allies. >> The president comes out and minimizes what he describes as
1:17:17
"The Program." And he gives a very truncated description of what they're
1:17:22
doing that sounds, I think, probably not too worrisome to most Americans.
1:17:29
>> I authorized the National Security Agency, consistent with U.S. law and the Constitution,
1:17:35
to intercept the international communications of people with
1:17:40
known links to al Qaeda and related terrorist organizations. >> NARRATOR: It was the least
1:17:47
controversial and smallest element of the program. There was no reference to the massive gathering of domestic
1:17:53
communications data. >> His characterization of the facts was simply wrong.
1:17:58
And it was wrong from the beginning. The program wasn't to surveil
1:18:03
known suspects, known conspirators. You could easily get a warrant
1:18:09
for that. The program was to sift big data. It was to trawl through enormous
1:18:14
volumes, literally trillions of telephone calls, trillions of emails, and to look for unknown
1:18:21
conspirators. >> NARRATOR: Once again, it would be left to General Hayden
1:18:27
to brief the press. He too minimized the scale of "The Program."
1:18:33
>> This is targeted. This is focused. This is about al Qaeda. One end of any call targeted
1:18:40
under this program is always outside the United States. >> When they asked questions
1:18:45
about how widespread the program was, he confined it to this little part of the program that
1:18:51
had leaked and did not address all the other parts that were far worse that had not leaked.
1:18:57
>> NARRATOR: There was no mention that the NSA was tracking telephone calls and emails inside the United States.
1:19:04
And Hayden even dismissed the idea that there had been any internal dissent about "The Program."
1:19:11
>> Not a single employee of the National Security Agency has addressed a concern about this program to the NSA IG.
1:19:18
I should also add that no member of the NSA workforce who has been asked to be included
1:19:23
in this program has responded to that request with anything except enthusiasm.
1:19:30
>> General Hayden's press conference introduced many of the tactics that the administration has used to
1:19:35
deflect questioning and also to mislead the public. I was amazed at what he was
1:19:41
saying, because it was not truthful; it was misleading.
1:19:47
And that was the beginning of the spinning and the lies. >> President Bush heads to the
1:19:53
NSA as part of his weeklong blitz to defend his controversial wiretapping program... >> White House strategy?
1:19:59
Fight back on every point... >> Yesterday it was the president; today the attorney general speaks out on the
1:20:04
matter... >> The president will visit one of the nation's most secret buildings today... >> NARRATOR: At the National
1:20:09
Security Agency, Thomas Drake was watching the White House's reaction carefully. >> Drake watches what top levels
1:20:15
of the U.S. government's saying about this program, and he thinks they're lying.
1:20:21
>> I realized that they were lying, that they were desperate to protect the domestic surveillance program.
1:20:26
>> He knows it's much more than what they're describing, and this makes him mad.
1:20:33
>> The far larger program was the dragnet surveillance, the vast bulk copy of millions
1:20:40
and millions of phone records, email records, Internet usage, and financial transactional and credit card information.
1:20:47
>> NARRATOR: Drake had been complaining internally about the program for more than four years.
1:20:53
Now he said he had run out of options. >> All the internal proper channels had been exhausted.
1:20:59
The one final choice was to actually touch the third rail and go to the press.
1:21:04
>> NARRATOR: Drake decided to act on his own, without the ThinThread team. He'd reach out to a newspaper
1:21:11
reporter. Siobhan Gorman worked for the Baltimore Sun. >> He just reaches out to her in
1:21:18
a way that he thinks is secret, using all kinds of protected
1:21:24
Hushmail to tell her he wants to talk to her and might have documents to share with her.
1:21:30
>> NARRATOR: Drake said that he would only provide unclassified material. >> It's a pretty classic
1:21:36
whistleblower kind of move that he makes, and he's careful, he thinks, not to violate any kind of national security laws
1:21:42
in reaching out to her. >> NARRATOR: Gorman will not acknowledge that Drake was her
1:21:48
source, but she says she knows why she received the leaks. >> There were a number of people
1:21:53
at NSA that were just very unhappy, and I think that the revelation of warrantless
1:21:59
surveillance probably did loosen up some concerns
1:22:05
that some people inside NSA might have had. >> NARRATOR: At first, Drake
1:22:10
remained completely anonymous, communicating entirely by encrypted email. >> She had no idea who I was.
1:22:17
I ultimately was referred to as just a senior official. It was sort of an agreement
1:22:23
as to how she would "couch" who I was in her reporting. But I was a deep...
1:22:28
I was a deep source. >> The Baltimore Sun reports today that the NSA rejected... >> And so I provided her
1:22:34
unclassified information about the secret surveillance program. >> NARRATOR: Gorman would write
1:22:40
a series of lengthy stories: a deep investigation into the NSA, ThinThread, and the warrantless
1:22:45
surveillance of millions of Americans.
1:22:52
But Drake wasn't the only leaker. Other stories broke. >> High ranking officers
1:22:59
in the Justice Department... >> NARRATOR: The New York Times revealed the story of that standoff in Attorney General
1:23:04
Ashcroft's hospital room. >> Andy Card and Alberto Gonzales to the hospital room...
1:23:10
>> NARRATOR: And a leak to USA Today revealed the government had been collecting the phone
1:23:15
records of tens of millions of Americans. >> Had the cooperation of major American phone companies...
1:23:21
>> NARRATOR: Though the stories relied mostly on anonymous sources with few documents to back them up, inside the White
1:23:26
House, Vice President Cheney was furious. He was determined to stop
1:23:32
the leakers. >> If you've known Dick Cheney-- I've known him for a long time-- he was always upset about
1:23:37
leakers, so it wasn't... this was not out of character. It fit within the character that he was, whether he was secretary
1:23:42
of defense or chief of staff to the president. >> NARRATOR: The investigation would be run by the FBI: a
1:23:49
massive manhunt for the leakers led by the new attorney general, Alberto Gonzales
1:23:56
>> They had broke they law. They leaked classified information.
1:24:01
That's against the law. The job of the Department of Justice is to prosecute those who break the law.
1:24:07
>> NARRATOR: The agents began their investigation across the street at the Department of
1:24:12
Justice itself, calling everyone who had worked with the FISA Court, including Thomas Tamm.
1:24:19
>> And he starts getting phone calls from this FBI agent,
1:24:24
Jason Lawless, at work. He's ducking the calls. >> NARRATOR: Terrified, Tamm
1:24:30
refused to return the calls. >> I was preoccupied with what was going to happen to me and
1:24:36
when it was going to happen, what was going to happen, if it was going to happen.
1:24:41
>> And finally, Lawless gets him on the phone and says, "Hey, this'll only take a few minutes."
1:24:47
>> NARRATOR: But Tamm panicked and quickly sealed his fate. >> I told him that I chose not to talk to him.
1:24:53
I chose to exercise my rights under the Constitution to not be a witness against myself.
1:24:59
And of course, I knew that immediately would send up red flags and that I would
1:25:05
immediately be their primary suspect. >> NARRATOR: Thomas Tamm
1:25:10
resigned from the Justice Department. He began to wait for a federal indictment.
1:25:17
>> A story that has now triggered a Justice Department investigation into who leaked what was behind... >> NARRATOR: In Cambridge,
1:25:24
Massachusetts, Jack Goldsmith had settled in as a professor at Harvard Law School. One morning, he was summoned
1:25:29
to a meeting in Harvard Square with two FBI agents. >> As we were sitting down at
1:25:34
the table over coffee, one of the agents sort of sheepishly handed me a manila envelope.
1:25:40
And he said that it was a subpoena for a grand jury investigation into the leak
1:25:45
of the New York Times. And he was very embarrassed and sheepish about this.
1:25:50
>> NARRATOR: The subpoena was issued under the leadership of Attorney General Alberto Gonzales.
1:25:56
>> And it seemed particularly ironic that the Justice Department was coming after me for illegal actions, or
1:26:02
allegedly illegal actions or possibly illegal actions, taken in connection with this program.
1:26:10
>> NARRATOR: By the summer of 2007, it had been more than 18 months since the FBI had begun
1:26:15
its investigation. They had little to show for it. They decided to up the ante.
1:26:23
They would conduct a series of early morning raids on the houses of their primary suspects.
1:26:29
>> At 9:00 Eastern Standard Time, the FBI, with guns drawn,
1:26:35
raids the homes of Binney and Wiebe, and out on the West
1:26:44
Coast, they raid the home of Diane Roark, waking her up.
1:26:50
>> It was quite shocking. In fact, they went through the whole house and went through every book, every paper,
1:26:55
every drawer. Turned the mattress over. It was quite shocking.
1:27:03
>> It's 9:00 in the morning, and I see these blue uniform with gold "FBI" on the back,
1:27:09
people coming across left to right, and I said... Well, it sent a chill
1:27:14
through me immediately. >> The first I knew the FBI was in my house was a guy pointing a gun at me when I was coming
1:27:20
out of the shower. They took my computer, all the electronic hardware, discs and
1:27:27
things that go with that, any kind of electronic storage device, and they also took some
1:27:33
of my magazines, technical magazines, and papers and things like that. >> NARRATOR: And then they hit
1:27:40
one more: Ed Loomis. >> My life was in shambles
1:27:46
at that point. My wife was hysterical.
1:27:51
She couldn't believe what had just occurred. I couldn't believe
1:27:57
what just occurred. And I had no insight
1:28:02
into why it had. >> You know, this button is NSA's second highest award, and
1:28:09
I wonder what it was that I did personally so wrong that I deserve this kind of treatment.
1:28:15
>> Here I am, an Eagle Scout, a retired scoutmaster
1:28:20
and a devout patriot, and my patriotism is being questioned
1:28:26
by the government that I had served for 43 years. I just couldn't...
1:28:32
it just didn't make sense to me. >> You feel pretty low, your
1:28:38
self-esteem takes a big hit, there is discord in the family
1:28:43
because kids, family, wife may ask you, "Well, what did you do
1:28:49
to bring this upon the house?" >> It tore me up.
1:28:54
I was... I became a recluse,
1:29:00
pretty much. I cut off virtually all social contact with friends.
1:29:07
It was rough. Very rough. >> Ed probably took it worse
1:29:16
in terms of cost to family and self, physically, mentally,
1:29:22
because Ed went into the shadows. He became a recluse, quiet.
1:29:29
He lost his wife. >> It's still eating at me.
1:29:34
But I've... I've told my family. I've told my... I told my father
1:29:40
before he passed away. Uh... I know I've done nothing wrong.
1:29:50
>> NARRATOR: The FBI considered them "persons of interest" for leaking to the New York Times, but they all insisted they
1:29:57
hadn't, and New York Times reporter James Risen agrees. >> I didn't know any of them.
1:30:03
And I just felt badly that they were getting caught up in something that was completely unrelated.
1:30:08
I knew that couldn't be true, that it was just collateral damage.
1:30:14
>> NARRATOR: Tom Drake's home was not raided by the FBI that day, but Drake had the feeling
1:30:19
that he was next. >> Almost six months goes by and Drake still hasn't been raided.
1:30:25
But then on the morning of November 28, 2007... >> I'm seeing these cars pull up
1:30:31
as I look out the window. It's just after 7:00 a.m. in the morning and there's a dozen FBI agents.
1:30:37
And my heart's up in my throat, because I realize it's now me.
1:30:44
>> NARRATOR: The FBI's search warrant said they were looking for evidence that Drake was the New York Times leaker.
1:30:51
>> Drake being Drake sits down at his kitchen table with the FBI agents without a lawyer
1:30:57
present and spends the entire day trying to convince them that the real culprits are the people
1:31:04
at the NSA who have run this illegal program. >> So I told them everything
1:31:10
I could, but they didn't want to hear about that. They wanted to hear about the New York Times and sources.
1:31:16
>> NARRATOR: The FBI carted away Drake's computers and boxes of his papers.
1:31:22
Drake waited. >> A few months later, in April 2008, Drake gets a summons to go
1:31:29
meet with somebody who is described as "somebody very important."
1:31:34
>> NARRATOR: The meeting was with federal prosecutor Steven Tyrrell. >> When Drake sits down,
1:31:40
Tyrrell says to him, "Mr. Drake, you are screwed."
1:31:45
>> NARRATOR: Tyrrell had no hard evidence Drake ever spoke to the New York Times or that he had
1:31:50
given any classified material to The Baltimore Sun. Nevertheless, Tyrrell said the
1:31:57
FBI had discovered classified documents on Drake's computer and in his basement: a felony.
1:32:04
>> He proceeded to tell me, "How would you like to spend the rest of your life in prison,
1:32:09
Mr. Drake? Unless you cooperate with our investigation, we have more than enough information to put you away for a long, long time.
1:32:15
You better start talking." >> And they talked numbers: 478 months-- 35 years.
1:32:24
The government said he would have the blood of soldiers on his hands for what he did. >> NARRATOR: Tyrrell wanted
1:32:30
Drake to confess and admit that he was the center of a conspiracy involving Roark, Binney and the others.
1:32:36
>> I was not going to plead out. And he was all ticked off and he says, "Well, we'll just have
1:32:42
to go with what we've got." >> NARRATOR: Drake and the
1:32:48
others faced decades in federal prison and at least tens of thousands of dollars in legal bills.
1:32:55
Desperate, they came to believe they had only one chance.
1:33:01
(crowd cheering) As it happened, 2008 was a presidential election year,
1:33:07
and there was one candidate who was promising a change. >> Are you fired up?
1:33:13
Ready to go? Fired up! Ready to go!
1:33:19
No more secrecy. That is a commitment I make to you as president. >> He is promising to be the
1:33:24
most transparent administration in history. He believes that there's been too much secrecy.
1:33:30
>> He made a real point of owning these kinds of arguments, both as a senator and then
1:33:35
on the campaign trail. >> It's time for us to change America.
1:33:40
And that's why I'm running for president of the United States. >> NARRATOR: Barack Obama even embraced the importance
1:33:45
of whistleblowers. >> Obama, throughout his history, is a champion of whistleblowers, arguing that
1:33:51
they're the folks who help make government better and reveal conduct that, if not is illegal,
1:33:57
is questionable. >> I certainly had a lot of hope and I had a lot of hope for hope and change.
1:34:03
But I actually thought that somebody might say, "You know, you actually did the right
1:34:09
thing." >> NARRATOR: And when it came to the secrecy surrounding the creation of "The Program,"
1:34:14
Obama was forceful. >> I will provide our intelligence and law enforcement agencies with the tools they
1:34:20
need to track and take out the terrorists without undermining our Constitution and our freedom.
1:34:26
That means no more illegal wiretapping of American citizens. >> It's not a calibrated statement.
1:34:32
This is a political statement. This is, in his words, a surveillance state run amok. >> No more ignoring the law
1:34:37
when it is inconvenient. That is not who we are. That's not what is necessary
1:34:42
to defeat the terrorists. >> It was like he was back at the University of Chicago as a constitutional scholar.
1:34:49
He sounded like an ACLU lawyer. >> NARRATOR: At the White House, in the waning months of the Bush
1:34:56
administration, they were determined to find a way to make "The Program" permanent.
1:35:01
>> The debate shifted pretty quickly to Congress in terms of debating whether or not the
1:35:06
Administration should get the power to do what they were doing. >> NARRATOR: The president
1:35:12
decided to try to convince Congress to enshrine the program into law. >> For President Bush, it's
1:35:17
really a significant reversal. He's decided he needs Congress to back up what he's done.
1:35:23
He, in effect, is abandoning his claim that he has the power under Article Two of the Constitution to do this without
1:35:29
Congress. >> NARRATOR: The administration proposed to amend the FISA law and insisted it was "reform,"
1:35:35
but insiders knew it granted the NSA unprecedented power.
1:35:40
>> The FISA Amendment Act of 2008 actually allows some of the things we were doing under the
1:35:47
president's authority only against al Qaeda, it allows them for all legitimate foreign
1:35:53
intelligence purposes. So in a sense, the FISA Amendment Act not only validates the terrorist surveillance
1:35:59
program, it expands it. >> NARRATOR: At the United
1:36:06
States Congress, the administration secretly made the case for the bill at closed hearings of the intelligence
1:36:11
committees. >> You had to read it very, very closely to understand what they were doing,
1:36:17
and I don't think people knew what actually the intent of that was. The intent of that was to make
1:36:23
legal all of the programs that the attorney general,
1:36:28
the FBI director had said they had a problem with. >> NARRATOR: Publicly, the
1:36:34
president would press lawmakers with a familiar warning: pass this law or Americans could die.
1:36:40
>> Without this law, our ability to prevent new attacks will be weakened.
1:36:45
And it will become harder for us to uncover terrorist plots. We must not allow this
1:36:50
to happen. >> NARRATOR: Candidate Barack Obama now faced a choice:
1:36:55
would he vote against the president's bill? >> I remember when the bill
1:37:00
came forward, there was some discussion as to whether or not he would support it.
1:37:06
>> The Senate is expected to vote on a controversial measure to amend... >> He was thinking ahead to the
1:37:12
general election, and how he was a young senator with not a lot of national security experience
1:37:18
and how he needed to be seen as being tough on these issues. >> NARRATOR: In private,
1:37:24
a tougher, more determined Obama was emerging. >> I remember the first conversation I ever had with him
1:37:30
during the campaign. I said, "Look, when you become president, you have to kill people.
1:37:35
Are you willing to pull the trigger? Are you willing to do that side of the job?"
1:37:42
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."
1:37:49
>> U.S. Senate returning final vote on the FISA bill, setting new rules for electronic
1:37:55
surveillance on foreign... >> NARRATOR: And now, Obama had a chance to enhance his national security credentials.
1:38:00
>> Gives the government new powers to eavesdrop on both domestic and international communications... >> For all of his criticism
1:38:07
in the past, for all of his background as a constitutional lawyer and civil libertarian, he chooses to accept the rather
1:38:13
expansive law. And he votes for it. >> Mr. Obama, "Aye." >> Senator Obama getting a lot
1:38:19
of heat for this vote, much of it from his own supporters... >> Senator Barack Obama voted for the surveillance bill,
1:38:24
despite his opposition to it in the past...
1:38:30
>> It's off to work for President Obama. It's a busy first day. >> He takes over two wars,
1:38:35
a staggering economy... >> NARRATOR: Six months later, Barack Obama was the new president and the commander
1:38:42
in chief. >> He's taking on national security right from the start... >> Meeting with the joint chiefs
1:38:47
of staff and other military advisors... >> The first time that Barack Obama ever learns about the full
1:38:52
scale of this program is an early briefing in the Situation Room about all of the data that
1:39:00
the NSA is collecting in these domestic surveillance programs. >> The point of the briefing was
1:39:06
to provide the president and the new national security team at the White House with an overview
1:39:12
of how these programs worked, what the value of the programs was, the legal structures that
1:39:19
supported the program, what the authority was. >> NARRATOR: He was told about the trillions of phone calls,
1:39:25
emails and Internet data that had been secretly gathered. >> As we talked about these
1:39:30
programs, the way they were used, in particular the value of the collection of content, an
1:39:36
extraordinarily vital tool, that the idea was, "All right, this is a really important program.
1:39:42
We need to maintain it." >> NARRATOR: The president's closest advisors insisted the program was necessary.
1:39:48
>> There was a very strong view in the intelligence community that this was an important program, that it did fill an
1:39:55
important gap. >> NARRATOR: The new president faced a decision: whether to dramatically restrict
1:40:00
"The Program." >> I think that the president approached this with the degree of seriousness that you would
1:40:06
hope and expect from the president of the United States. >> When you get into office,
1:40:12
when you're the man, when you're in the White House, you don't want to give up
1:40:17
any tools that you inherit. You don't want to give up anything that might get you that
1:40:22
one fact that will stop an attack. >> NARRATOR: He made his
1:40:28
decision: the program would continue. >> He had a chance to say, "That's too far. Let's not sweep in quite so many
1:40:34
people who don't have anything to do with terrorism as part of this broad sweep." And he chose to keep the
1:40:40
programs largely intact. >> I'm not aware of any case in which Obama pushed back hard
1:40:46
and said, "You can't do that."
1:40:52
>> NARRATOR: Convinced the program was effective and necessary, Obama would now own it.
1:41:02
At the NSA, they were now spending more than $10 billion a year on capturing communications
1:41:08
of people around the world. >> The NSA was on the verge of what it came to call the "Golden
1:41:13
Age" of electronic surveillance, because there was so much more communication, so much more
1:41:19
data, so much better computer capacity to process it,
1:41:24
and it was there for the taking. >> NARRATOR: To run the
1:41:29
operations, the NSA relied on a number of private contractors: companies that could provide
1:41:36
highly skilled computer programmers and engineers. >> The NSA, CIA and other
1:41:43
intelligence services suddenly realized that they needed people
1:41:48
with those kind of skills. >> NARRATOR: 25-year-old
1:41:53
Edward Snowden was one of them. A high school dropout, Snowden had grown up
1:41:59
just 20 minutes from the NSA. >> He grew up in the community where lots of people who were
1:42:05
in the military and the intelligence community live. His father was in the Coast Guard for 30 years.
1:42:10
>> If you've been to a Ron Paul rally, you've seen lots of people who look exactly like Edward Snowden: young,
1:42:16
clean cut, student, you know... Passionate about the
1:42:21
Constitution. >> NARRATOR: Snowden had enlisted in the Army, but left after breaking both
1:42:27
of his legs in training. >> He had the reaction after 9/11 that a lot of patriotic young Americans had, which is,
1:42:33
"I'd like to do my part." And that brought him to the NSA and the CIA and the worlds
1:42:39
of secret intelligence. >> NARRATOR: By 2009, Snowden was working as an NSA contractor
1:42:46
in Japan. The job provided him extensive access to the details of NSA
1:42:52
operations. >> He really began to understand the true scope of how much the NSA had gotten its hands into
1:42:59
the backbone of the Internet. >> NARRATOR: The more Snowden saw, the more disturbed he became.
1:43:05
>> It was a gradual accumulation of evidence and of observations that led him to think,
1:43:12
"Something's going wrong here. The balance is out of whack. The surveillance of ordinary
1:43:18
people is far greater than I would have imagined and far greater than the American public
1:43:23
has been able to debate." >> NARRATOR: One of the key
1:43:29
documents Snowden discovered: a classified inspector general report detailing the history of
1:43:34
"The Program." >> It tells the entire secret history of the program. It talks about Addington and
1:43:41
Hayden writing the authorization for the program. >> "According to General Hayden,
1:43:47
the vice president's counsel, David Addington, drafted the first authorization..." >> It talks about the rebellion
1:43:52
at the Justice Department. >> "Consequently, the White House counsel rather than the attorney general signed the 11
1:43:58
March 2004 authorization." >> It's the entire unadulterated history of these programs.
1:44:05
>> He told me that reading the inspector general's report made
1:44:11
a big impression on him. He felt like people had done things that were wrong
1:44:17
and had not been held accountable for them. >> The laws that are written will be more open to the public.
1:44:22
No more secrecy... >> NARRATOR: And under President Obama, Snowden watched as "The Program" continued.
1:44:27
>> His hope was that Obama would be a force for transparency,
1:44:34
and that's not what happened. And that was another of the pivotal moments in which Snowden
1:44:40
realized it was going to have to be him. >> NARRATOR: As Snowden was
1:44:46
deciding exactly what to do, Obama's Justice Department began to address those Bush-era leak
1:44:51
investigations, led by Attorney General Eric Holder. >> What's interesting is that
1:44:58
these cases from the Bush era linger on. They don't just throw them out;
1:45:03
they revisit them. And they keep going after the enemies of the National Security Agency, much as they'd done
1:45:10
under Bush. >> NARRATOR: Despite the campaign rhetoric in support of whistleblowers, President Obama
1:45:15
did nothing to stop the prosecutions. >> This president personally
1:45:21
really doesn't like people leaking classified information. He takes that very seriously
1:45:28
and he thinks that we should all take it very seriously. >> In every conversation that
1:45:34
Obama had that I have heard about, he said, "When it comes to national security,
1:45:39
you leak classified information that could endanger people, we're going to come down on you
1:45:44
like a ton of bricks." >> NARRATOR: And when the bricks fell, they landed on Thomas Drake.
1:45:50
>> 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
1:45:56
intelligence analysts, "You speak, you go to the press, you're going to get hammered."
1:46:02
These were the lessons that were supposed to come out of being raided, and then in Tom's case,
1:46:09
indicted. >> NARRATOR: On April 14, 2010, Thomas Drake was finally
1:46:14
charged. >> I was arraigned. Before I was arraigned before the judge, I was fingerprinted
1:46:20
by the U.S. marshals with the FBI agent watching.
1:46:27
I was a direct threat to the national security of the United States. I truly had become
1:46:32
an enemy of the state. >> NARRATOR: Drake was charged with violating the Espionage Act. >> And I'm facing the distinct
1:46:38
prospect of having the rest of my left spent behind bars,
1:46:44
effectively. >> NARRATOR: As he waited for his day in court, Drake's
1:46:49
life began to fall apart. >> He spent two years draining all his resources on a private
1:46:55
attorney, and then when he had no more money, he had to go to a public defender.
1:47:00
>> It was extraordinarily lonely. I mean, life had become already extremely difficult.
1:47:06
All the income I had, all the retirement's gone, your life is turned upside down.
1:47:11
You're persona non grata. I ended up finding work, initially part-time, then
1:47:17
full-time, at an Apple Store. >> NARRATOR: At the center of the government's case were those documents found
1:47:23
at Drake's house. Prosecutors insisted they were classified. Drake's lawyers turned
1:47:29
to author James Bamford. >> I was hired as a consultant by the defense and was able
1:47:35
to find basically all of the information that they were charging him with was already in the public domain.
1:47:41
Not only that, it had been placed in the public domain by the government itself.
1:47:46
>> I looked at the stuff that he was indicted for. That material was clearly marked unclassified.
1:47:51
>> It was not stamped "Classified" until after it was seized from Tom Drake's home.
1:47:57
>> And all they did was draw a line through it and classified that material, and so then they charged him with having
1:48:03
classified material. It's like framing him, and we're going to frame you after the fact.
1:48:08
>> NARRATOR: The government later insisted the documents Drake had contained national secrets and were covered by the
1:48:14
Espionage Law. But then just days before the trial was to begin, the charges
1:48:20
against Drake were dropped. >> It was astounding. Basically, Drake went from
1:48:27
someone charged with such serious crimes that he could spend the rest of his life in
1:48:32
prison to having it bargained down, because the Justice Department could see it was
1:48:38
falling apart, to a misdemeanor, where he spent no time at all in prison.
1:48:43
>> NARRATOR: Drake agreed to plead guilty to misdemeanor unauthorized use of a government computer.
1:48:49
He was charged a $25 court fee, put on probation for a year and given community service.
1:48:57
None of the other suspects in the leak investigation were ever charged.
1:49:07
It had been more than ten years. Despite the revelations of insiders like Drake and the news
1:49:13
reports about the program, there was little public outrage and few congressional critics.
1:49:20
"The Program" was continuing to grow.
1:49:27
But at a secret bunker in Hawaii, Edward Snowden was now working for a new NSA contractor.
1:49:33
Snowden was initiating his own move to expose the program.
1:49:38
>> The FBI has raided the offices established to protect federal whistleblowers...
1:49:43
>> NARRATOR: Snowden studied carefully the actions of the other whistleblowers: the ThinThread group and Tamm,
1:49:51
and especially Drake. >> What he learned from Drake and Binney is that you can be
1:49:56
discredited or people won't know whether to believe you if you don't have proof. And it was because of that
1:50:02
that he decided it had to be documents, and it had to be a lot of documents. >> The New York Times broke the
1:50:08
story after holding it for a year... >> NARRATOR: And unlike Tamm, Snowden would not go
1:50:13
to the New York Times. >> Paper faces questions about why it held that story... >> Snowden was disgusted
1:50:19
at the New York Times for having that story before the election, sitting on it for month
1:50:25
after month. And he had a real antipathy towards the New York Times as a result of the way
1:50:32
they behaved over Risen. >> NARRATOR: And he would begin systematically copying
1:50:38
and giving them documents that held many of the United States' most closely guarded secrets.
1:50:43
>> Snowden had clearances for human intelligence. He had clearances for many,
1:50:48
many compartments of electronic surveillance. And he had a third set of powers, which is actually called
1:50:54
"super user." It was a very potent combination that opened many, many doors to him.
1:51:00
>> Here is this low-level analyst who was able to access, if you believe the government,
1:51:06
1.7 million documents, and walk out of the agency with them without them having the
1:51:12
slightest idea that it was taking place. >> This was a stupendous
1:51:17
intelligence breach. This was the largest collection of classified information,
1:51:23
the largest leak of classified information that had ever occurred in the history
1:51:28
of the United States, or indeed the history of the world. >> Embarrassing for the Obama administration, in a trove of
1:51:33
documents leaked by Edward Snowden... >> NARRATOR: For the National Security Agency, the biggest threat to "The Program" was just
1:51:40
beginning. >> The NSA has collected millions of contact lists... >> The NSA intercepts hundreds
1:51:46
of thousands of email address books every day... >>
