CommunityThe Dissenter

Going Through the ‘Proper Channels’ to Blow the Whistle on Secret Surveillance Programs

Thomas Drake (Creative Commons-licensed photo by Project on Government Oversight)

A main criticism of National Security Agency whistleblower Edward Snowden, who disclosed information on secret surveillance programs, is that he did not go through the proper channels before going to the press with classified information.

Jeffrey Toobin for The New Yorker argued that America’s system “offers legal options to disgruntled government employees and contractors. They can take advantage of federal whistleblower laws; they can bring their complaints to Congress; they can try to protest within the institutions where they work. But Snowden did none of this.”

Steven Bucci, former deputy assistant secretary of defense under President George W. Bush, wrote, “Individuals who suspect wrongdoing in government have legitimate options to bring this to the attention of responsible individuals in government and Congress without breaking the law.” But, “Mr. Snowden decided it was fine to break the law, and he should be called to account for it.”

University of Chicago law professor Geoffrey Stone asserted that Snowden “should have presented his concerns to senior, responsible members of Congress. But the one thing he most certainly should not have done is to decide on the basis of his own ill-informed, arrogant and amateurish judgment that he knows better than everyone else in government how best to serve the national interest.”

On MSNBC’s “Andrea Mitchell Reports” on June 10, Jeremy Bash, a former chief of staff to secretary of defense Leon Panetta, asserted, “If you have a complaint, you go through this process. You talk to your supervisor. If you don`t trust your supervisor, you go to the inspector general. If you don`t trust the inspector general, you can go to Congress. There are multiple ways to make your concerns heard. Running for China is not one of them.”

What if Snowden had gone to Congress? What if he had gone to an inspector general? What if he had not gone to the press and gone public with what he was seeing as a Booz Allen Hamilton contractor working for the NSA?

Everything Given to Congress Likely to End Up in a “Black Hole”

Thomas Drake, who also exposed the NSA’s massive secret surveillance programs and what the NSA should have known prior to the September 11th attacks, told Firedoglake, “Everything I passed on to Congress it just went into a black hole.”

In regards to the 9/11 investigation, he said, “It was as if my material witness testimony never existed. It was not just censored. It was snuffed out. There’s no indication or record that I was ever interviewed.” That is because NSA reviewed the final reports of both the 9/11 congressional investigations and they were able to say something was “state secrets” and remove it entirely.

According to Jesselyn Radack, director of national security and human rights at the Government Accountability Project, Drake, along with NSA employees Bill Binney, Ed Loomis and Kirk Wiebe, went to Sen. Ron Wyden and Sen. Mark Udall to brief them on secret surveillance programs.

“We provided information to the same effect of what PRISM does,” Radack told Firedoglake. “We briefed them and they politely listened and kind of nodded their heads. And didn’t disagree and listened for hours and it was a long meeting and nothing happened because they obviously were only willing to go so far in saying there’s a secret legal interpretation that’s really dangerous.”

Also, had Snowden gone to Congress, he might have had to clear it with a public affairs office. Radack suggested it essentially amounts to a “gag order,” and would have been a “complete killer of anything meaningful” being shared with Congress.

It is also possible, depending on who he tried to contact in Congress, that the representative or senator would not have been able to receive classified information if they did not have the proper security clearance. Plus, many members of Congress have no interest in becoming truly informed on these issues to stick their neck out and provide oversight; fifty-three senators chose not to attend a classified briefing on secret government surveillance programs last Thursday that many had never been informed about before.

Department of Defense Inspector General Gave Up Four NSA Whistleblowers to the Justice Department

Binney, Drake, Loomis and Wiebe all tried to call attention to what they wanted to expose internally. They made complaints to the Department of Defense inspector general (IG) and the IG turned around and “gave up the names of all four whistleblowers to the Justice Department for criminal prosecution.”

“They totally sold the witnesses they were supposed to be protecting down the river,” Radack said. They all became “targets of federal criminal investigation. Drake was prosecuted for espionage.”

Drake said the channels are there. The IG is the “office of primary responsibility for those who want to bring something of issue.” However, the IG is in the chain of command under the director. “They’re beholden to the agency’s chain of command,” which makes the NSA a “hostile environment for bringing any kind of information that would make them look bad.”

The Department of Defense eventually substantiated Drake’s claims, but they immediately classified the report so no one knew why exactly he was blowing the whistle.

Drake further recounted, “I had one of the most senior analysts at NSA who came to me with a report that had been done many, many months earlier. It was a long-term report on al Qaeda’s associated movements. He was beside himself after 9/11 because that report had never been distributed to the rest of the community.” The NSA withheld publication and distribution.

Internally, Drake said he was flagged early on for raising issues within NSA. He experienced “all kinds of bureaucratic and administrative reprisals” starting as early as late fall of 2001.

Obama Has Sought to Protect Whistleblowers—Except for Those in National Security or Intelligence Agencies

Then, there’s the reality that “whistleblower protections that exist on paper for national security employees or contractors are slim to none,” according to Drake.

Radack noted, “What most people don’t know is the normal whistleblower protection laws specifically exclude national security and intelligence employees. That includes the Whistleblower Protection Enhancement Act, which was passed under President Obama. Obama was the one who did not want them to be covered.

“Likewise, his presidential directive that spoke about whistleblowers also excluded national security and intelligence whistleblowers,” Radack added.

It is, therefore, really disingenuous for anyone arguing on behalf of the government to argue someone should have used “proper” internal channels. All possible channels are intentionally closed off.

“All Of the Efforts We Made Just Produced No Change Whatsoever”

Binney told USA Today during a roundtable discussion with Drake, Radack and Wiebe:

We tried to stay for the better part of seven years inside the government trying to get the government to recognize the unconstitutional, illegal activity that they were doing and openly admit that and devise certain ways that would be constitutionally and legally acceptable to achieve the ends they were really after. And that just failed totally because no one in Congress or — we couldn’t get anybody in the courts, and certainly the Department of Justice and inspector general’s office didn’t pay any attention to it. And all of the efforts we made just produced no change whatsoever. All it did was continue to get worse and expand.

He added that he thought Snowden had seen and “read about what our experience was, and that was part of his decision-making.”

“I don’t want anyone to think that he had an alternative. No one should (think that),” Wiebe said during the discussion. “There is no path for intelligence-community whistle-blowers who know wrong is being done. There is none. It’s a toss of the coin, and the odds are you are going to be hammered.”

The “Radioactive Option,” According to Drake

Snowden probably would have preferred not to go to the press. From experience, Drake said this is the “radioactive option.”

“The last thing you would is go to the press,” he stated. “One thing to raise your concerns within the system and cooperate with investigations as a material witness, it’s a whole other thing to invoke the radioactive option and go to the press. That is career suicide.”

But, Radack acknowledged that going to a media organization like The Guardian or Washington Post is far better than posting the documents independently on some website.

“If we were advising someone in that position, rather than having them put up documents themselves, we definitely would go to a reputable journalist, which Glenn Greenwald certainly is, and say, ‘This is what’s going on,’” she said. “That happens every day. That’s how reporters get their stories.”

Nowadays, a national security or intelligence whistleblower could go to a media organization and the organization could sit on the information and not publish. They might contact the government before publishing too. Both acts make it more likely that an agency’s actions or misconduct, which the whistleblower is seeking to expose, would be found out before the public was able to see what he or she was trying to reveal to the world.

Margaret Sullivan, public editor for The New York Times, recounted in a Sunday column how the Times held a story on NSA warrantless wiretapping at the behest of the administration of President George W. Bush. Eric Lichtblau, one of the reporters who worked on the story, had to sit and watch as he and his editors “’waited anxiously in an elegantly appointed sitting room in the White House’ to be greeted by officials including the secretary of state, Condoleezza Rice, and the White House counsel, Harriet Miers.”

“Would Mr. Snowden want to risk another 13-month delay?” Sullivan asked.

Snowden had seen an op-doc produced by filmmaker Laura Poitras on Binney called “The Program.” But, he was, according to Poitras, worried about “mainstream media” and “particularly what happened with the New York Times and the warrantless wiretapping story, which as we know was shelved for a year.”

Additional Thoughts

As should be abundantly clear, it is next to impossible to go through proper channels within government and blow the whistle without facing retaliation where one is fired or forced out of an agency. Congress members are likely to ignore or politely listen but decline to act upon the information that is brought to their attention. That means the best hope government employees in national security and intelligence agencies have for exposing programs or policies that the public should know about is going to the press.

The problem is often the policies or programs whistleblowers are seeking to expose have become normalized and entrenched. In the case of NSA surveillance, President George W. Bush legalized the kind of programs or policies Snowden exposed. Then-Senator Obama voted for retroactive immunity to the telecommunications companies that participated in warrantless wiretapping. And, AT&T, which actively enabled the operations of NSA so the agency could monitor phone call information and Internet traffic, was a major donor to Obama’s 2008 and 2012 presidential campaigns and the Democratic National Conventions.

Though the programs likely violate the Fourth Amendment principles that government should follow, the courts toss out lawsuits claiming those challenging surveillance programs as unconstitutional or illegal have no standing because they cannot prove they have been victims of secret surveillance. So, that has further enabled the Congress and Executive Branch to cooperate together and expand the national security apparatus in such a way that there are few boundaries it must adhere to when “protecting” so-called national security.

Ultimately, this is what drives institutional apologists like Toobin to write of Snowden, “In an act that speaks more to his ego than his conscience, he threw the secrets he knew up in the air—and trusted, somehow, that good would come of it.” It’s what inspires Bucci to suggest, “These leaks never occur without repercussions. One hopes that any damage to the nation’s security does not cause loss of life. Some Americans may lionize Snowden, but there are terrorists who surely do.” And, it was what leads reputable lawyers like Stone to assert, “The rule of law matters, and no one gave Edward Snowden the authority to make that decision for the nation. His conduct was more than unacceptable; it was criminal.”

Not only are they purely or willfully ignorant and misunderstand how the government has consciously sought to suppress and deter conscientious employees in national security or intelligence agencies from blowing the whistle, but they also do not think the information warrants a blowing of the whistle.

In adopting this attitude toward whistleblowers, they enable the national security state to operate in total secrecy and use classification to, as Drake described, “bury, hide and obfuscate.” They help to ensure that the only discussions about laws, policies and programs related to national security are ones permissible or sanctioned by the government. They condemn and smear the very kind of people who most want to come to the media organizations that amplify their voice and provide scoops for news stories.

A nation more conducive to unaccountability and criminal acts is, thus, encouraged, all because of a perverse and twisted notion of what it means to be a whistleblower.

Previous post

Late, Late Night FDL: I Got You

Next post

"Yeah, it makes Freedom possible"

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."