The PATRIOT Act And The Whistleblowers Who Challenged Mass Surveillance After 9/11

[Editor's Note: To mark the 20th anniversary of the rise of the American security state after the September 11th attacks, The Dissenter continues a retrospective on this transformation in policing and government.]

Mark Klein worked for over twenty years as a technician for the AT&T Corporation. He blew the whistle on the AT&T’s collaboration with the National Security Agency, which allowed for warrantless wiretapping of phone and internet communications.

In 2006, Klein came to the Electronic Frontier Foundation (EFF) with documents of AT&T’s involvement in the United States’ domestic spying program. His whistleblowing became the basis of the organization’s lawsuit against the NSA.

According to Kevin Bankston [PDF], who was an EFF staff attorney, Klein described the “technology behind AT&T’s participation in the program, whereby the NSA had been given complete access  to  the  Internet  traffic  transiting  through  at  least  one,  and  probably  more,  AT&T  Internet  facilities.”

“A secret, NSA-controlled room in an AT&T office” was constructed and splitters copied light signals that were transferred across fiber-optic cables in order to give the government access to AT&T customers’ private data.

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, or the PATRIOT Act, helped to create a security climate that encouraged this kind of public-private partnership between AT&T and the NSA.

It was signed into law by President George W. Bush on October 26, 2001. However, versions of the legislation, which gave the government expanded authority to engage in mass surveillance and data collection, including against American citizens, were passed earlier in October.

Only a few members of Congress raised the kind of objections which contemplated the types of abuses, which Klein and other whistleblowers exposed.

Debated In The 'Most Undemocratic Way Possible,' Opposed By Only One Senator

The PATRIOT Act was developed in 45 days. Several representatives admitted they had not read the bill. Open debate was largely forbidden and amendments to the legislation were discouraged.

Only one U.S. senator voted against the bill—Senator Russ Feingold of Wisconsin.

Feingold nobly attempted on October 11 to amend the PATRIOT Act to remove some of its worst elements. He tried to amend it so an anti-hacking provision was narrowed. He believed it could “allow universities, libraries, and employers to permit government surveillance of people who are permitted to use the computer facilities of those entities. Such surveillance would take place without a judicial order or probable cause to believe that a crime is being committed.”

A second amendment offered urged senators to a safeguard in the “roving wiretap authority” section of the bill. Feingold believed an order in the Foreign Intelligence Surveillance Act should have been required to “ascertain that the target of the surveillance [was] actually in the house that [was] bugged, or using the phone that [was] tapped.”

Yet another amendment involved section 215, which stated all business records could be compelled for production by the FBI, including medical records from a hospital or doctor, educational records, or records of books a person checked out from a library. Feingold tried to make sure this provision did not become “the platform or an excuse for a fishing expedition for damaging information on American citizens who are not the subjects of FISA surveillance.”

Feingold tried to warn senators of what would happen if terrorists were rewarded by the United States weakening freedoms. He also cautioned against the “mistreatment of Arab Americans, Muslim Americans, South Asians, or others” in the United States. “Already, one day after the attacks, we were hearing news reports that misguided anger against people of these backgrounds had led to harassment, violence, and even death.”

“Our national consciousness still bears the stain and the scars of those events: the Alien and Sedition Acts, the suspension of habeas corpus during the Civil War, the internment of Japanese-Americans during World War II and the injustices perpetrated against German Americans and Italian-Americans, the blacklisting of supposed communist sympathizers during the McCarthy era, and the surveillance and harassment of antiwar protesters, including Dr. Martin Luther King, Jr., during the Vietnam War.

“We must not allow this piece of our past to become prologue,” Feingold declared.

But the Senate did not heed his words of caution. All three of the amendments were defeated. In fact, Senate Majority Leader Tom Daschle, a Democrat from South Dakota, opposed the amendments on procedural grounds, claiming there was no time to delay passage of the PATRIOT Act.

In the House of Representatives, a small number of representatives objected.

Representative Bobby Scott contended the legislation was not “limited to terrorism.” It reduced standards for foreign intelligence wiretapping, allowed for a roving wiretap, and the ability to use information from a roving wiretap in a criminal investigation. This would allow the government to “conduct a criminal investigation without probable cause.”

Both Scott and Representative Sheila Jackson-Lee were concerned about provisions that could be used to permit the indefinite detention of Americans. Scott was bothered by the parts of the bill that would permit secret searches referred to as “sneak-and-peak.”

Representative Tom Udall protested the fact that members were not allowed to offer amendments.  “At no point in the debate in this very profound set of issues have we had a procedure whereby the most democratic institution in our government, the House of Representatives, engages in democracy.”

“This bill, ironically, which has been given all of these high-flying acronyms, it is the PATRIOT bill, it is the U.S.A. bill, it is the stand up and sing the Star-Spangled Banner bill, has been debated in the most undemocratic way possible, and it is not worthy of this institution,” Udall added.

While Congress granted U.S. security agencies enormously expanded power, the FBI detained and questioned hundreds of Arabs, Muslims, or South Asians about the 9/11 attacks. They were held for months and not charged with any crimes. Under the pretext of “immigration violations,” Attorney General Ashcroft kept them in squalid jail conditions and then deported most of them.

Exposing Warrantless Wiretapping By The Bush Administration

As journalist Michael Isikoff reported for Newsweek, Thomas Tamm, an attorney at the Justice Department, “stumbled upon the existence of a highly classified National Security Agency program” that involved spying on citizens. Special rules for the unit enabled the section to hide NSA activities from judges on the FISA court. (It was often referred to as “The Program.”)

Tamm contacted the New York Times and became a source for the Eric Lichtblau and James Risen report published in 2006, which revealed that Bush secretly authorized the NSA to engage in warrantless wiretapping through a program known as Stellar Wind.

“I asked a supervisor of mine if she knew what ‘The Program’ was about,” recalled Tamm during an interview for PBS FRONTLINE. “She told me that she just assumed that what we were doing was illegal and she didn't want to ask any questions. That really ate away at me and bothered me, because I thought I had gone into law enforcement to enforce the law. I didn't like the fact that I thought, or that a supervisor thought, that we might be doing something illegal.”

Tamm contacted someone with a top-secret security clearance on Capitol Hill, who he knew from working on a prior case. He asked her to find out what Congress knew and if representatives, especially those on the intelligence committees, understood what was being done. She did not really help him uncover any answers. He emailed and asked again for her assistance. When she said she could not help him, he said he would have to go the press.

“You know, Tom, whistleblowers frequently don't end up very well,” Tamm’s contact replied.

At first, New York Times executive editor Bill Keller allowed the Bush White House to pressure the media organization into not publishing the story before Bush was re-elected in 2004. After Risen threatened to include it in his book, State of War: The Secret History of the CIA and the Bush Administration, the Times moved to publish in December 2005 before Risen’s book was released.

In retaliation for exposing this “separate track” in the government for authorizing secret and illegal surveillance, the FBI raided Tamm’s home on August 1, 2007. His family endured a lot of hardship. He believed he could be indicted by the Justice Department at any moment and turned to Isikoff to get his story out on what he did and why he did it.

Tamm was granted immunity in April 2011 to testify before a grand jury investigating leaks published by Risen from the CIA. He testified on details that were not previously agreed upon, but since he was not ashamed of what he did, Tamm felt no reason to hold back. And once that was over, the Justice Department indicated there would be no charges.

'All The Lawyers Have Approved It. It's Legal'

NSA whistleblower Thomas Drake spoke over the phone in October 2001 with one of the top lawyers in the NSA. He was concerned that Stellar Wind or “The Program,” which gathered the phone calls and Internet communications of millions of Americans, was illegal.

When asked about this conversation by PBS FRONTLINE, that lawyer, Vito Potenza, pretended not to remember the phone call. He also indicated he would have ignored Drake’s concerns.

“Don’t bother me with this. I mean, you know, the minute he said, if he did say you’re using this to violate the Constitution, I mean, I probably would have stopped the conversation at that point quite frankly. So, I mean, if that’s what he said he said, then anything after that I probably wasn’t listening to anyway,” Potenza told PBS FRONTLINE.

Drake said he “confronted” Potenza “directly in the most direct language possible,” accusing the NSA of “violating the Constitution.” Potenza knew the truth and “chose to go with ‘The Program.’ And anybody questioning ‘The Program’ was a threat.”

Along with NSA whistleblowers Bill Binney, Ed Loomis, and Kirk Wiebe, Drake found that a program called ThinThread no longer had its privacy protections when collecting data. The automatic encryption of U.S. person-related data was suspended. Instead, an algorithm called Mainway linked phone numbers together as data was collected. The agency then went to telecommunications companies like AT&T and requested “bulk-copy records” of Americans.

This convinced Binney, Loomis, and Wiebe to leave the NSA, but Drake remained and attempted to blow the whistle through “proper channels.”

In September 2002, Binney, Wiebe, and Diane Roark, who worked for the House Intelligence Committee, filed a “confidential complaint” with the Office of the Inspector General for the Department of Defense. They complained about a “billion dollar boondoggle” called Trailblazer and how officials all the way up to NSA chief Michael Hayden violated regulations by going with this project instead of ThinThread.

It was a felony to engage in this kind of warrantless surveillance, but the names of these individuals who worked for NSA were passed along to the Justice Department for investigation.

After the New York Times finally published the story from Risen and Lichtblau exposing the Bush wiretapping scandal, the FBI targeted them. They had their homes raided. Drake was prosecuted under the Espionage Act.

During that phone call, Drake attempted to warn the the NSA’s top lawyer that what the NSA was doing after the 9/11 attacks was illegal.

“The hair literally was up on the back of my neck, because he proceeded to tell me: ‘You don’t understand. All the lawyers have approved it. It’s legal. The White House has authorized NSA to serve as the executive agent for ‘the Program.’”

Stumbling Across More Warrantless Surveillance By 'Major Telecom'

In 2008, Congress deliberated over legislation known as the FISA Amendments Act that included retroactive immunity for telecommunications corporations like AT&T, which were vulnerable to lawsuits following revelations from whistleblowers like Mark Klein and Thomas Tamm.

Babak Pasdar, an information technology security expert, came forward [PDF] in February 2008 with evidence that indicated a “major telecommunications giant” likely gave a U.S. government entity “access to every communication coming through that company’s infrastructure, including every email, internet use, document transmission, video, and text message, as well as the ability to listen in on any phone call.”

Members of Congress, including John Dingell, the chairman of the Energy and Commerce Committee, wrote in a “Dear Colleague” letter, described the “Quantico Circuit” that Pasdar observed.

“In the course of his work, he discovered that an unidentified third party had been given unfettered and unsecured access to all of the data transmissions it carried,” the letter added. “When Mr. Pasdar identified this security breach and made suggestions about how to correct the situation, representatives of the carrier reportedly refused to secure the network. Moreover, they refused to implement tracking programs to identify what data were accessed.”

According to Pasdar, the access to the carrier’s data center infrastructure included the carrier’s fraud detection system. That was not benign to him. The fraud detection system had the ability to “track all mobile devices by geography.”

Pasdar’s allegations echoed those from Klein, but one key issue for members of Congress was that the telecommunications companies that participated in wiretapping without any court orders or warrants were prohibited from talking to Congress. President George W. Bush would not let them.

Unfortunately, the whistleblowing of Klein and Pasdar was disregarded by Congress. The FISA Amendments Act, as the ACLU put it, legalized “mass, untargeted, and unwarranted spying” on international phone calls and emails. It restricted judicial oversight of surveillance by the FISA court and granted companies like AT&T retroactive immunity.

Senator Barack Obama made it clear during his presidential campaign that he would “support a filibuster of any bill that [included] retroactive immunity for telecommunications companies.” When it came time, he declined to filibuster, and he voted for the FISA Amendments Act, which passed 69-28 in the Senate.

Former National Security Agency contractor Edward Snowden made the decision to become a whistleblower after he came across a classified 2009 inspector general’s report on the NSA’s warrantless wiretapping program developed under Bush.

“You can’t read something like that and not realize what it means for all of these systems we have,” Snowden declared in an interview with Risen in 2013. “If the highest officials in government can break the law without fearing punishment or even any repercussions at all, secret powers become tremendously dangerous.”

In 2013, Snowden provided numerous documents to journalists Glenn Greenwald and Laura Poitras that exposed NSA mass surveillance programs, especially those established after the 9/11 attacks, to unprecedented scrutiny.

The first major revelation from Snowden concerned a document that showed the NSA was collecting the phone records of millions of Verizon customers daily under section 215 of the PATRIOT Act. In 2015, the Second Circuit Court of Appeals determined [PDF] the collection was illegal and outside the scope of what Congress authorized.

Further revelations included (but were not limited to): a program called PRISM, which involved real-time collection of communications from companies like Facebook, Google, Microsoft, Skype, etc; the collection of email and chat contact lists from millions of people around the world; a “Dishfire” program that collected 200 million text messages per day that the NSA could use to mine contact information, location data, and credit card details; an NSA “loophole” that allowed agents to search U.S. citizens’ emails and phone calls without a warrant; and the targeting of messaging apps like Signal or WhatsApp or encryption tools like Tor.

What Snowden disclosed about surveillance, which was justified by the passage of the PATRIOT Act, showed U.S. security agencies were collecting all the data they could vacuum and copy on to their servers. It prompted a serious but rare conversation among lawmakers and the media about the powers the NSA abuses and the legal authorities the government claimed, which were never granted. Quite a number of programs that officials could not publicly defend were paused or discontinued.

Even a Drug Enforcement Administration program called USTO that harvested the records of billions of American’s international phone calls for more than two decades was ended by the Justice Department in September 2013 because of Snowden’s whistleblowing.

As the New York Times wrote in an editorial in January 2014, “Snowden told The Washington Post earlier this month that he did report his misgivings to two superiors at the agency, showing them the volume of data collected by the NSA, and that they took no action. (The NSA. says there is no evidence of this.) That’s almost certainly because the agency and its leaders don’t consider these collection programs to be an abuse and would never have acted on Mr. Snowden’s concerns.

“Snowden was clearly justified in believing that the only way to blow the whistle on this kind of intelligence-gathering was to expose it to the public and let the resulting furor do the work his superiors would not.”

Despite the modest reforms embraced by lawmakers and the shift in public attitudes toward mass surveillance, Snowden continues to face charges under the Espionage Act and lives in exile under asylum in Russia.

Obama reauthorized key provisions in the PATRIOT Act in 2012, but in 2020, the PATRIOT Act's provisions mostly expired in 2020 when the House of Representatives failed to renew them.