[Peace-discuss] Whistleblowers Band Together To Sue FBI, NSA And DOJ

[David Johnson]

Whistleblowers Band Together To Sue FBI, NSA And DOJ

Description: The NSA campus in Fort Meade. The bulk collection of telephone
metadata was first revealed in 2013 by Edward Snowden. Photograph: Patrick
Semansky/AP


By Tim Cushing,
<https://www.techdirt.com/articles/20150824/19361332053/whistleblowers-band-
together-to-sue-fbi-nsa-doj-malicious-prosecution-civil-liberties-violations
.shtml> www.techdirt.com
August 26th, 2015



The NSA campus in Fort Meade. The bulk collection of telephone metadata was
first revealed in 2013 by Edward Snowden. Photograph: Patrick Semansky/AP

This should be fun. A bunch of whistleblowers that were hounded, surveilled
and prosecuted/persecuted by the US government are banding together to sue
all the big names in domestic surveillance.

 <https://www.techdirt.com/blog/?tag=thomas+drake> Thomas Drake,
<https://www.techdirt.com/blog/?tag=diane+roark> Diane Roark,  <https://www.
techdirt.com/blog/?tag=edward+loomis> Ed Loomis,
<https://www.techdirt.com/articles/20140513/17454627224/three-big-lies-how-f
ederal-government-kept-its-post-911-spying-americans-secret.shtml> J. Kirk
Wiebe and  <https://www.techdirt.com/blog/?tag=william+binney> William
Binney have filed a civil rights lawsuit against the NSA, FBI, DOJ,  <https:
//www.techdirt.com/blog/?tag=michael+hayden> Michael Hayden,
<https://www.techdirt.com/blog/?tag=keith+alexander> Keith Alexander,
<https://www.techdirt.com/blog/?tag=chris+inglis> Chris Inglis,
<https://www.techdirt.com/blog/?tag=robert+mueller> Robert Mueller and a
handful of others. They will be represented by
<https://www.techdirt.com/blog/?tag=larry+klayman> Larry Klayman, who has
some experience suing intelligence agencies.

The claims arise from the government’s treatment of these whistleblowers
after they started making noise about the NSA’s surveillance programs. More
specifically,
<https://s3.amazonaws.com/s3.documentcloud.org/documents/2299131/whistleblow
ers-v-nsa.pdf> the lawsuit points to the short-lived internet surveillance
program  <https://www.techdirt.com/blog/?tag=thinthread> THINTHREAD, which
was ignored and abandoned in favor of something more expensive, but less
protective of Americans’ communications.

Plaintiffs worked in various roles on developing and perfecting a candidate
program called THINTHREAD which was capable of performing the technical work
desired by the NSA for surveillance of the internet efficiently,
effectively, and at very low cost.

THINTHREAD was put into operation successfully but only on a demonstration
basis. It was approved to demonstrate that it worked, but not officially
commissioned for actual operational use.

Despite the Plaintiffs demonstrating that THINTHREAD actually worked, the
NSA ignored THINTHREAD as a candidate for performing the desired
surveillance of the internet and telephone communications, because
THINTHREAD was inexpensive and highly effective, yet Lt. General Michael
Hayden had made a corporate decision to “buy” externally rather than
“build” internally the solution deemed necessary to harvest internet data.

$4 billion went into another program called TRAILBLAZER (THINTHREAD’s
internal development cost, by contrast, was only $4 MILLION), along with
five years of development. In the end, TRAILBLAZER never worked properly and
was abandoned by the NSA in 2006.

This wasteful “funneling” of funds to preferred government contractors was
reported to the Dept. of Defense by four of the whistleblowers, under the
heading of waste, fraud and misuse of taxpayers’ money. The DoD wasn’t
happy. It issued a scathing internal report. But the NSA wasn’t interested
in having its faults pointed out. It sent the DOJ after the whistleblowers,
using an unrelated  <https://www.techdirt.com/blog/?tag=james+risen> leak of
information about the NSA’s expansive domestic surveillance programs to the
New York Times as the impetus for a series of raids.

According to the filing, the raids were retaliatory. The government had
already determined the plaintiffs had nothing to do with the leaks reported
on by the New York Times. And it used faulty affidavits to justify the
corresponding raids.

In fact, the affidavit for the search warrants are themselves based upon an
illegal, warrantless phone tap and refer to a conversation illegally
intercepted between Plaintiff Roark and Plaintiff William Binney, although
misrepresenting the call’s contents. Further, the ultimate pretext for the
search, a paper describing THINTHREAD at a high level that Binney had given
the FBI, was falsely claimed by NSA to be classified. Thus, the search
warrant affidavit is not only false but illegal.

The lawsuit also attempts to use the breadth and reach of known surveillance
programs as proof the government knew the whistleblowers had nothing to do
with the NYT leak.

Moreover, as later revealed by Edward Snowden, the NSA was even then, with
the assistance of cooperating telephone and telecommunications companies,
conducting mass interception and surveillance of all telephone calls within
the domestic United States for the very purpose - at least so they claimed -
of detecting both external and internal threats against the national
security of the United States.

Therefore, through those phone and internet records, the Defendants had
actual evidence at the time of the false affidavit and retaliatory searches
and seizures that none of the Plaintiffs had communicated with the The New
York Times or other journalists, except that Plaintiff Drake on his own had
spoken confidentially with regard to public and /or unclassified information
to the Baltimore Sun.

The end result of the FBI, NSA and DOJ’s actions in response to
whistleblowing (largely performed through proper channels) is a host of
alleged civil liberties violations and other abuses, starting with the
violation of 1998′s Whistleblower Protection Act. From there, the
whistleblowers allege violations of their First, Fourth and Fifth Amendment
rights, along with malicious prosecution, intentional infliction of
emotional distress and abuse of process.

It will be interesting to see where this goes. The government likely won’t
be able to dismiss the suit quickly, but the plaintiffs are going to run
into a ton of immunity claims that will be buttressed by invocations of
national security concerns. Their lawyer - Larry Klayman - has
<https://www.techdirt.com/articles/20141104/14333029039/heres-hoping-judge-i
gnore-nutty-plaintiff-with-important-case-nsa-surveillance-business-records.
shtml> occasionally displayed his inability to distinguish between
actionable claims and conspiracy theories, a tendency that doesn’t improve
the plaintiffs’ chances of succeeding. But of all the outcomes I imagined
for the stories of Drake, Binney, et al, taking these agencies on directly
in federal court wasn’t one of them.



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