Former NSA general counsel Vito Potenza

Former National Security Agency deputy general counsel Vito Potenza asserted if an employee had come to him with concerns about the constitutionality of dragnet warrantless surveillance, which was intercepting the communications of Americans after 9/11, he would not have listened.

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

Vito Potenza, who has previously declined to comment on this exchange, was interviewed for Frontline’s “The United States of Secrets.” He said if he even had such a conversation with Drake he would have basically ignored everything Drake said to him:

POTENZA: If he came to me, someone who was not read into “The Program,” right, and not a part of what we were doing and told me that we were running amok essentially and violating the Constitution and it was in that timeframe when there was an awful lot going on and we were all worried about the next attack, there’s no doubt in my mind I would have told him, you know, go talk to your management. Don’t bother me with this. I mean, you know, the minute he said, if he did say you’re using this to violate the Constitution, I mean, I probably would have stopped the conversation at that point quite frankly. So, I mean, if that’s what he said he said, then anything after that I probably wasn’t listening to anyway. [emphasis added]

Asked about the demented casualness of Potenza’s answer, Drake told Firedoglake this is reflective of someone continuing a coverup. He said he “confronted” Potenza “directly in the most direct language possible” saying “that NSA was violating the Constitution.” So, Potenza “knows the truth and chose to go with ‘The Program.’ And anybody questioning ‘The Program’ was a threat.”

Drake, along with Bill Binney, Ed Loomis and Kirk Wiebe, had discovered that a program they had supported, ThinThread, had been emasculated and stripped of its privacy protections. It would no longer automatically encrypt all US person-related data as envisioned. NSA would simply be using an algorithm, Mainway, that could ”link phone numbers together as they’re being collected.” The agency would go to the telecommunications companies and ask for “bulk-copy records” of every American.

Each of the men was livid. It eventually drove Binney, Loomis and Wiebe to leave the agency so they would not be a party to any of the crimes that would be committed. But Drake stayed in the agency and attempted to go through “proper channels” with his concerns.

In his Frontline interview, Drake said he did not know there was a “secret presidential directive” for this surveillance. He appealed to Maureen Baginski, who was Drake’s superior and the third highest ranking official at the NSA. She balked at his concerns and told him to contact the Office of General Counsel and speak with the NSA’s lead attorney, Potenza.

Drake recalled, “It was this side of a half-hour conversation with him on the phone, and it’s extraordinarily chilling, because as soon as I hung up the phone — and I’ll share what he told me — I was thrown back to the 1970s. 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.’ They always said ‘the Program.’ ‘The Program’ was Stellar Wind.”

He pushed back and said, “You’re telling me that under the excuse of 9/11, we’re just going to abandon the Constitution?” And Potenza replied, “You don’t understand. We are under emergency conditions. Extraordinary, extraordinary means are required to deal with the threat. We just need the data.”

It then became even more frustrating for Drake. “Don’t ask any more questions, Mr. Drake,” he said Potenza told him.

“It was clear in that moment I was flagged, because I’m obviously evidencing to an attorney, the lead attorney by the way, who advises Hayden directly at the Office of General Counsel, the lead attorney. Obviously, I’m dissenting. I have prima facie evidence. I’m bringing it forward on the phone to his attention, and he’s telling me it doesn’t matter anymore; we already have our authority from the White House,” Drake further recalled.

According to Washington Post journalist Barton Gellman’s book, Angler: The Cheney Vice Presidency, Potenza “did not know why exactly the Bush administration believed all this was legal.” But, Potenza, along with Joel Brenner, the inspector general, decided to inform NSA Director Michael Hayden that he could “rely on a military order from the president” because “American was at war with al Qaeda, intelligence gathering is inherent in war and the Constitution appoints the president commander-in-chief.” They weren’t constitutional lawyers and decided to rely on assurances from the Justice Department that this was all legal.

Until 2006, Drake persisted in raising his concerns through “proper channels.” In September 2002, Binney, Wiebe, and Diane Roark, who worked for the House Intelligence Committee, filed a “confidential complaint” with the Inspector General of the Department of Defense. They complained about a “billion dollar boondoggle” called Trailblazer and how NSA had violated regulations by going with this project instead of ThinThread.

The Inspector General conducted an audit, which did not result in a final report until 2005.

The number of people knowledgeable about “The Program” was small. When journalist James Risen finally managed to convince editors at The New York Times to publish a story exposing this surveillance (because otherwise he was going to report it in his forthcoming book), Binney, Drake, Loomis, Roark and Wiebe immediately became potential suspects because their names were on the complaint.

They became targets of a massive FBI manhunt into who leaked the information that was led by Alberto Gonzales, which resulted in armed FBI agents raiding their homes. Later, Drake was indicted under the Espionage Act. (None of them were sources for the story in the Times.)

As Gellman said, “It was a felony to conduct this kind of surveillance in the United States,” but the Frontline program clearly shows that those dissenting from management, those daring to speak up for the law and Constitution, were people who were pursued as criminals. It wasn’t the other way around.

Fast forward to the present day, not much has changed with the culture at the NSA. The NSA’s inspector general, George Ellard, has said, even though he would have an obligation to assess the constitutionality of surveillance, “We could have explained to Mr. Snowden his misperceptions, his lack of understanding of what we do.” [Ellard has also stated Snowden was "manic in his thievery" and compared him to an actual spy, Robert Hanssen.]

Is it really so hard to understand and accept the fact that the system would not have allowed Snowden to reveal all that he has revealed, information which has contributed to a critical public debate and spurred positive changes both in government and the private sector?

NSA whistleblower Edward Snowden recognized and understood what had happened to Drake. He knew that going through “proper channels” would likely expose him. He chose to try a different path because the avenues setup for revealing fraud, waste, abuse and illegality through the chain of command or the agency’s watchdog would put him at risk.