After our announcement four months ago that NSA whistleblower Thomas Drake had been struck by serious cancer, the generous responses provided a huge lift. Vindictive prosecution has left him deeply in debt, including for massive legal fees; the persecutors ultimately lost in court, but the long ordeal left him without a pension and, in effect, banishment from government employment.

As a top executive of the National Security Agency a decade ago, he had nothing to gain -- and everything to lose -- by exposing the U.S. government’s secret assault on overall civil liberties and the Fourth Amendment in particular. Federal prosecutors threatened him with prison for the rest of his life.

Ever since challenging widespread government surveillance, Tom has remained a beacon of truth-telling integrity. Here at RootsAction Education Fund, we’ve been proud to work with him for many years. Now, he’s facing a new kind of crisis. As medical bills pile up and essential drugs are too expensive, he urgently needs -- and deserves -- our help.

Click here to make a tax-deductible donation in support of Tom Drake and his vital work. Three-quarters of every dollar you donate will go directly to him, while the other quarter will help sustain RootsAction Education Fund’s work in support of “national security” whistleblowers and civil liberties.

Below is what Tom has just written to share with you -- news of progress in his severe medical ordeal, and an essay about the current battle over the U.S. government’s continuing efforts to shred 4th Amendment protections “against unreasonable searches and seizures.”

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Personal Update:

First, I wanted to provide an update on my medical condition while acknowledging that I am sharing in public what is usually considered private and personally protected information. However, it is important for me to inform you regarding my health status. Since I last wrote for RootsAction Education Fund in March, I am beginning to feel gradually more normal, but am still very much in recovery.

It was also a huge and welcome relief to have the kidney tubes and external bags removed in late March after a successful “flow” test with contrast was conducted. The CAT scan in March showed that a number of the affected lymph nodes in question were significantly smaller in size. In addition, my hemoglobin counts are above the danger zone threshold and so no new blood transfusions since the end of February. (NOTE: Lost count on the number of blood units I ended up receiving across multiple transfusion sessions, but it was at least a dozen and a half plus!)

One other new development? My primary oncologist doctor placed me on a new pill to deal with the lymphoma called brukinsa and I take four 80mg tablets each day. Why?

With the previous pill I had developed a weird transient neuropathy where my hands and fingers became numb with a burning sensation and finger joints developed a very painful throbbing in both hands. Made it quite difficult to grasp things and really awkward to type when keyboarding. Think of having pins and needles that don’t go away. Reducing the dosage of previous pill helped a bit but the neuropathy persisted.

New pill is four times more expensive (some $13K a month!), but unlike the previous pill, this new pill is listed as supported by my medical insurance so I pay as my deductible between $600 and $700 a month instead of between $800 and $900 month. In addition, new pill is apparently more effective as well. Am looking forward to the equivalent of remission.

I am scheduled for additional blood tests and a PET (Positron Emission Tomography) scan that will further determine my recovery progress in dealing with the lymphoma.

Each day that passes feels like a second lease on life for me as I focus even more on the things that matter in life and holding those I cherish and honor in my life closer.

And I continue to remain deeply grateful and appreciative for all of your continued support as well.

Privacy and National Security: The 702 Debate

Section 702 of the updated Foreign Intelligence Surveillance Act (FISA) is scheduled to “sunset” at the end of this year after five years since it was last authorized unless it is renewed. There is now a fierce and ongoing debate underway. The law enforcement and intelligence establishment is lobbying Congress to simply renew Section 702 for another five years with no changes at all, while privacy and IT experts and advocates argue that Section 702 must have reforms for any reauthorization to take place — especially in view of the documented and reported abuse and misuse as well as behind-the-door requirements creep beyond its original mandate.

Important to note that the debate over Section 702 is not just arguing over the merits (or demerits) of some abstract legal theory — but focuses on the real tension between “national security” demands that are all too often and quite secret and opaque with the statutes and laws that are supposed to protect the privacy rights of people.

There IS a direct link between privacy and freedom, and yet national security excuses apparently trump the protections afforded under the 4th Amendment of the U.S. Constitution in this country. Privacy is absolutely essential for freedom of thought, action, expression and speech. Absent privacy, the government can engage in “privacide” at will with no consent, targeting people the government doesn’t like or wants to monitor and track.

Do we really want the FBI or any other government agency willfully searching through the communications of U.S. Persons without the need for a warrant that clearly articulates the probable cause standard? To do so without a warrant simply to “find a crime” beyond foreign intelligence threat requirements goes well beyond FISA and the 4th Amendment.

The government has justified these types of warrantless searches on the basis of simply the possibility that the queries might return evidence of a crime via a so-called defensive search. The FBI in particular has argued for these types of defensive searches as a national security exception, and yet the 4th Amendment does NOT make a distinction between so-called defensive and offensive searches.

The standard for a 4th Amendment warrant is clear with respect to the twofold probable cause requirement — there is a crime or the communications requested will obtain evidence of that crime. The so-called defensive search query for potential victims of a crime under the guise of obtaining the information for the purpose of protecting someone is a specious argument. The whole focus and purpose of a warrant is preventing the abuse of surveillance power and forcing the government to provide the affidavit and make its case for the warrant before a judge. 

It seems the government wants the pretext to conduct these “defensive” searches on-the-fly as a backdoor way to gain access to any communications that might have foreign intelligence ties or influence — however tenuous. 

As an historical note, detecting and defending against purported foreign influence and subversion was used as a frequent excuse by the government in the past for monitoring of political dissidents — such as the Vietnam antiwar movement, left-leaning groups, activist Black students back in the ’60s and ’70s via a number of secret surveillance efforts including FBI’s COINTELPRO, NSA’s SHAMROCK and MINARET, CIA’s CHAOS, and other similar programs. The straw argument for the need to conduct “defensive” surveillance is made up out of whole national-security cloth under the excuse of foreign influence — never minding all the secret surveillance regimes put in place after 9/11.

Section 702 of FISA does allow the government to engage in warrantless surveillance of targeted foreigners abroad, including any and all the communications they have with Americans. And yet accessing those communications bypasses the warrant requirement to do so under the 4th Amendment.

After all the non-compliance violations and years of abuse and misuse, Congress can close this backdoor search loophole. But the FBI is very aggressively pushing for a huge exception to not only keep the current warrantless system but extend it for these so-called “defensive” searches. Again it is critical to remember that history is not kind and it is replete with examples of the government conducting warrantless defensive searches as a pretense and as pretext for abuse to score political points and influence.

One of the most egregious historical examples is J. Edgar Hoover authorizing the FBI to secretly monitor Martin Luther King Jr. for “possible” communist influences when in fact it was Hoover’s blatant racism and enmity against the civil rights movement. This excuse to conduct “defensive” surveillance also extends post-9/11 to spying on dissidents, whistleblowers, journalists, media outlets, vulnerable minority communities, crime victims, Black Lives Matter, Antifa, commentators and other targeted figures for political purposes.

The 4th Amendment clearly permits reasonable offensive searches and seizures based on a judicially approved warrant, so before the government goes searching for the private communications of an American, the standard is to get a warrant first from the courts. And yet officials beating the drum for the fear of going blind is so dire that renewing a WARRANTLESS Section 702 “carve out” for five more years is now considered a critical must pass / must have National Security imperative.

Really?

Despite admitting that multiple violations DID occur, promises that internal controls (err, self-licking reform) are sufficient to keep Section 702 within civil liberty guardrails must receive the raised-eyebrow response.

The law enforcement and intelligence establishments are really infected by an OCD hoarding addiction to data and the desire for unfettered and persistent-gaze surveillance access. Controls on access to U.S. Person data to date are really a kabuki shell dance, and then the government has the audacity to say trust us on self-compliance. Yet with secret executive power comes great responsibility, but also enables greater irresponsibility to violate the public trust (err, 4th Amendment privacy). Government is really hiding behind the rubric and sanctity of National Security and the state secrets blanket, and that’s the rub.

Government sees “quaintness” of the 4th Amendment warrant requirement under the Constitution as out of date, hobbling national security and getting in the way. Yet ANY U.S. Person data search and seizure that is like a general warrant is blatantly unconstitutional.

Counterterrorism was the original purpose (err, excuse) given for such broad access, but now anything declared as within the ambit of a national security-related purpose is fair game, as long as the FBI states there is a reasonable national security need for access.

Executive Order 12333 is the emergency executive power back-door backstop. These surveillance regimes “legal-fied” Bush-era warrantless STELLARWIND programs (the supersecret surveillance program I blew the whistle on) and defied and violated the Constitution.

It’s also a specious argument that traditional FISA is not agile or quick enough. Problem was solved at scale by the best at NSA (I was there) pre-9/11 and was also FISA/4th Amendment compliant, with critical near real-time speed and agility for the demands and realities of the Internet Age regarding real threats — but then summarily rejected because the government wanted general warrantless bulk collection to search (err, surveil) or seize essentially everything post-9/11 that transited or ended up stored by U.S. providers. 

So reauthorizing the slippery slope of expanding mass search and access to these secret, warrantless surveillance programs takes primacy — over any notion of protected privacy or from protections granted by the 4th Amendment against unreasonable search and seizures when “national security” is the all-consuming reason and justification.

It is decidedly NOT an all-or-nothing proposition. The U.S. government can deal with real threats without committing unconsenting privacide, while still protecting individual person data. But doctrine has certainly made turnkey mass surveillance the norm and not the exception, and that’s the real rub.

Unless of course privacy is simply null and void as the government continues to fear-pimp for privacide.

-- Thomas Drake

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PS from the RootsAction Education Fund:

Whether or not the rare whistleblowers at places like the NSA go to prison, a key official goal is to drive them close to the poverty line for the rest of their lives, deprived of pensions and rendered unemployable for all but low-paid jobs.

While Thomas Drake remains deeply in financial debt, we are in his debt -- morally, politically and ethically. We owe him so much because he stood up for civil liberties and human decency.

Let’s help repay that debt to Tom Drake, who exposed extreme mass surveillance by the NSA.

Living in what is supposed to be a democracy, we get vital information because of the courage of whistleblowers.

You can make a tax-deductible contribution in support of Tom Drake.

Thank you!

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Background:
>>  Jane Mayer, The New Yorker: Thomas Drake -- "The Secret Sharer"
>>  George Croner, Lawfare: “The FISA Section 702 Debate Intensifies”
>>  Charlie Savage, New York Times: “Security Agencies and Congress Brace for Fight Over Expiring Surveillance Law”
>>  Brookings: “A conversation with Assistant Attorney General Matthew Olsen on the reauthorization of FISA Section 702”