Recently, the American public learned that the National Security Agency (NSA) has conducted, and continues to conduct, wholesale surveillance of U.S. citizens through a secretive data-mining program. The program collects the phone records, email exchanges, and internet histories of tens of millions of Americans who would otherwise have no knowledge of the secret program were it not for the disclosures of recent whistleblowers. The latest of these whistleblowers to come forward is former Booz Allen Hamilton federal contractor employee, Edward Snowden.
As the nation’s leading whistleblower protection and advocacy organization, the Government Accountability Project (GAP) would like to be clear about its position on each of the following points that relate to these significant revelations:
I. SNOWDEN IS A WHISTLEBLOWER.
Snowden disclosed information about a secret program that he reasonably believed to be illegal. Consequently, he meets the legal definition of a whistleblower, despite statements to the contrary made by numerous government officials and security pundits. Sen. Rand Paul (R-Ky), Sen. Mark Udall (D-Co), Rep. Loretta Sanchez (D-Ca), Rep. Thomas Massie (R-Ky), and Sen. Bernie Sanders (I-Vt) have also expressed concern about the potential illegality of the secret program. Moreover, Rep. Jim Sensenbrenner (R-Wi) who is one of the original authors of the Patriot Act – the oft-cited justification for this pervasive surveillance – has expressed similar misgiving.
II. SNOWDEN IS THE SUBJECT OF CLASSIC WHISTLEBLOWER RETALIATION.
Derogatory characterizations of Snowden‘s personal character by government officials do not negate his whistleblower status. On the contrary, such attacks are classic acts of predatory reprisal used against whistleblowers in the wake of their revelations.Snowden’s personal life, his motives and his whereabouts have all been called into question by government officials and pundits engaged in the reflexive response of institutional apologists. The guilty habitually seek to discredit the whistleblower by shifting the spotlight from the dissent to the dissenter. Historically, this pattern of abuse is clear from behavior towards whistleblowers Daniel Ellsberg, Mark Felt, Frank Serpico, Jeffrey Wigand, Jesselyn Radack, and recent NSA whistleblower Tom Drake.
III. THE ISSUE IS THE MESSAGE AND NOT THE MESSENGER.
As a matter of course, whistleblowers are discredited, but what truly matters is the disclosure itself. Snowden’s revelations have sparked a public debate about the balance between privacy and security – a debate that President Obama now claims to welcome. Until Snowden’s disclosures, however, the government had suppressed the facts that would make any serious debate possible.
IV. PERVASIVE SURVEILLANCE DOES NOT MEET THE STANDARD FOR CLASSIFIED INFORMATION.
Many have condemned Snowden for disclosing classified information, but documents are classified if they reveal sources or methods of intelligence-gathering used to protect the United States from its enemies. Domestic surveillance that is pervasive and secret is only a valid method of intelligence gathering if the country’s enemies include most of its own population. Moreover, under the governing Executive Order it is not legal to classify documents in order to cover up possible misconduct.
V. THE PUBLIC HAS A CONSTITUTIONAL RIGHT TO KNOW.
In a democracy, it is simply not acceptable to discover widespread government surveillance only after a whistleblower’s revelations. Because of Snowden’s disclosures we now know that Director of National Intelligence James Clapper deliberately misled the Senate Intelligence Committee when he stated on March 12, 2013 that the NSA did not purposefully collect any type of data from millions of Americans. Regardless of the justification for this policy, the public has a Constitutional right to know about these actions.
Unfortunately, the responsibility has fallen on whistleblowers to inform the public about critical policy issues – from warrantless wiretapping to torture. Whistleblowers remain the regulator of last resort.
VI. THERE IS A CLEAR HISTORY OF REPRISAL AGAINST NSA WHISTLEBLOWERS.
By communicating with the press, Snowden used the safest channel available to him to inform the public of wrongdoing. Nonetheless, government officials have been critical of him for not using internal agency channels – the same channels that have repeatedly failed to protect whistleblowers from reprisal in the past. In many cases, the critics are the exact officials who acted to exclude national security employees and contractors from the Whistleblower Protection Enhancement Act of 2012.
Prior to Snowden’s disclosures, NSA whistleblowers Tom Drake, William Binney and J. Kirk Wiebe, all clients of GAP, used internal mechanisms – including the NSA chain of command, Congressional committees, and the Department of Defense Inspector General – to report the massive waste and privacy violations of earlier incarnations of the NSA’s data collection program. Ultimately, the use of these internal channels served only to expose Binney, Drake and Wiebe to years-long criminal investigations and even FBI raids on their homes. As one example, consider that Tom Drake was subjected to a professionally and financially devastating prosecution under the Espionage Act. Despite a case against him that ultimately collapsed, Drake was labeled an “enemy of the state” and his career ruined.
VII. WE ARE WITNESSING THE CRIMINALIZATION OF WHISTLEBLOWING.
During the last decade, the legal rights for whistleblowers have expanded for many federal workers and contractors, with the one exception of employees within the intelligence community. The rights of these employees have significantly contracted. The Obama administration has conducted an unprecedented campaign against national security whistleblowers, bringing more Espionage Act indictments than all previous administrations combined.
Moreover, at the behest of the House Intelligence Committee, strengthened whistleblower protections for national security workers were stripped from major pieces of legislation such as the Whistleblower Protection Enhancement Act (for federal employees) and the National Defense Authorization Act of 2013 (for federal contractors). If those protections existed today, Snowden’s disclosures would have stood a greater chance of being addressed effectively from within the organization.
The actions already taken against Snowden are a punitive continuation of what has become a “War on Whistleblowers.” Through a series of retaliatory measures, the federal government targets federal employees who speak out against gross waste, illegality, or fraud, rather than prosecuting individuals engaged in high crimes and misdemeanors. So far as we know, not one person from the NSA has yet to suffer any consequences for ordering, justifying or participating in the NSA’s domestic spying operation.
It is the opinion of GAP that recent events suggest the full might of the Department of Justice will be leveled at Snowden, including an indictment under the Espionage Act, while those who stretched their interpretation of the Patriot Act to encompass the private lives of millions of Americans will simply continue working.
VIII. IN THE SURVEILLANCE STATE, THE ENEMY IS THE WHISTLEBLOWER.
If every action has an opposite and equal reaction, the whistleblower is that reaction within the surveillance state. Dragnet electronic surveillance is a high-tech revival of tactics used to attack the civil rights movement and political enemies of the Nixon administration. Whistleblowers famously alerted the public to past government overreach, while helping to defend both national security and civil liberties.
In contrast, secrecy, retaliation and intimidation undermine our Constitutional rights and weaken our democratic processes more swiftly, more surely, and more corrosively than the acts of terror from which they purport to protect us.
Contact: Bea Edwards, Executive Director
Phone: 202.457.0034, ext. 155
Contact: Louis Clark, President
Phone: 202. 457.0034, ext. 129
Contact: Dylan Blaylock, Communications Director
Phone: 202.457.0034, ext. 137
Americans deserve to hear the dirty secrets of the CIA’s war on terror. We’ll all be better off with the truth.
In April 1975, Sen. Frank Church impaneled a special investigative committee to look into shocking accounts of CIA dirty tricks. The Church Committee ultimately published 14 reports over two years revealing a clandestine agency that was a law unto itself — plotting to assassinate heads of state (Castro, Diem, Lumumba, Trujillo), carrying out weird experiments with LSD, and suborning American journalists. As a result, President Gerald Ford issued an executive order banning the assassination of foreign leaders, the House and Senate established standing intelligence committees, and the United States set up the so-called FISA courts, which oversee request for surveillance warrants against suspected foreign agents.
But the war on terror unleashed the CIA once again to carry out dark deeds against America’s enemies — torture, secret detention, and “rendition” to “black sites” across the world. How have Americans reckoned, this time, with the immoral and illegal acts carried out in their name? They have not: the CIA has retained control over the narrative. As the Constitution Project’s Detainee Treatment report describes in great detail, the CIA falsely reported — to the White House as well as to the public — that torture “worked” in wresting crucial information from high-level detainees, and thus needed to be an instrument available to interrogators. Officials like Vice President Dick Cheney repeated ad nauseum that the CIA’s dark arts had saved thousands of lives. Is it any wonder that a plurality of Americans think the United States should torture terrorists?
I wrote last month about the detainee treatment report, but I find it incredibly frustrating — and all too telling — that the findings were overwhelmed by the tidal wave of coverage of the Boston bombing. Because we fear terrorism far more viscerally than we feared communism — certainly by 1975 — we are all too susceptible to the view that America cannot afford to live by its own professed values. But of course that’s what Chileans and Brazilians thought in the 1970s. That’s why Sri Lankans have granted themselves the right to slaughter homegrown terrorists wholesale, and react furiously to any hint of criticism.
People give themselves a pass unless and until they are forced to face the truth, which is why a public airing of history is so important — and so politically fraught. There’s always a compelling reason to avoid facing the ugly truth. In early 2009, Patrick Leahy, chairman of the Senate Judiciary Committee, called for an independent commission to investigate allegations of torture. But President Barack Obama’s spokesman said that the proposal would not be “workable.” We know what he meant: you can hardly blame the president for avoiding a colossal fight with Republicans over the past, especially, when he had so many fights he needed to wage over the future.
Obama probably thought that he could put the problem to rest by ending torture as well as the cult of secrecy surrounding CIA practices. He succeeded on the first count, but failed on the latter. In April 2009, he agreed to release the so-called “torture” memos written by President George W. Bush’s Office of Legal Counsel (OLC), as well as photos of prisoner abuse from Iraq and Afghanistan. But then, after a fierce debate inside the White House said to pit Obama’s military commanders against his counselor, Gregory Craig, among others, the administration reversed itself. The president later signed legislation allowing him to withhold the pictures if he determined that the release would harm national security.
Once adopted, the logic of national security carries all before it. The release of the OLC memos, the detainee treatment report notes, was the high-water mark of Obama-era transparency on torture. CIA reports on the death of three prisoners in custody as well as on broad policy towards detainees remain classified; so do the results of inquiries by the armed forces criminal investigation division. The agency’s ability to withhold information probably contributed to the Justice Department’s decision not to pursue indictments on any of the 100 or so cases of CIA mistreatment which it investigated. Defense lawyers in the military trial of the “9/11 defendants” held at Guantanamo have had to work around a “protection order” which classifies entire subject areas — including anything related to the defendants’ arrest or capture, the conditions in which they were held, or the interrogation techniques to which they were subjected. Whatever becomes of the defendants, Americans will learn nothing from the trials.
On matters of secrecy, Obama has been little better than Bush. This has become notorious in the case of the drone program, a centerpiece of Obama’s prosecution of the war on terror. In a recent speech at the Oxford Union, Harold Koh, the former chief counsel of the State Department, said that the administration has failed to be “transparent about legal standards and the decision-making process that it has been applying.”
I asked Koh why the White House has so regularly deferred to the CIA on issues of transparency and accountability. Koh pointed out that the CIA’s concern that exposing past bad acts could serve as a recruiting tool for al Qaeda was hardly trivial. But, he said of the White House: “They don’t have a good balancing mechanism on the value of disclosures. It’s almost like if nobody’s clamoring for it, the pressure can be resisted.” The pressure comes from the outside — from the press, from civil-liberties groups, and activists — but not from the inside. So the CIA carries the day.
And yet it’s not too late to expose, and learn from, the sorry history of the last decade. Last December, the Senate Intelligence Committee approved a 6,000-page report on the finding of its secret investigation into the treatment of detainees. The report, which has not been made public, describes the CIA’s detention program in minute detail. Among other things, it puts to rest the canard that torture works. In his confirmation hearings, CIA director John Brennan admitted that the report had led him to question “the information that I was given at the time” that so-called “enhanced techniques” had saved lives.
Brennan has learned this; other Americans may not have the chance. The CIA is likely to both dispute the findings and to try to keep them secret. In a letter to Obama, Sen. Mark Udall complained that Brennan had shown “little to no interest” in working with his staff, and had already missed the deadline for response by more than two months. A congressional aide said that there was no sign that the White House had even examined the report, much less prepared a response.
The good news is that the irrepressible Vice President Joe Biden recently advocated publishing the findings, saying that Americans needed to “excise the demons” through a full disclosure of past abuses. Biden even compared the redemptive value of facing the truth on torture to the effect of the war-crimes tribunals on Germany. Obama probably didn’t authorize the analogy, but he may well have signed off on the position — in which case the comment should be read as a pre-emptive shot across the CIA’s bow.
In the course of questioning Brennan during Senate hearings, Sen. Udall quoted Howard Baker, the widely admired Republican moderate from the bygone age of Republican moderates, to the effect that the Church Committee report may well have weakened the CIA in the short run, but strengthened it in the long run — by reminding the agency of what it should as well as shouldn’t do. Apparently even the CIA agrees, since its website carries an admiring description of the committee’s findings. If and when the Senate Intelligence Committee report is made public, in whole or in part, current and former CIA officials, conservative pundits, and Republican politicians will no doubt join as one to warn that America’s national security has been compromised, its enemies emboldened, its intelligence operatives compromised. That’s what they said in 1975. They were wrong then, and they will be wrong now.