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
Email:
BeaE@whistleblower.orgContact: Louis Clark, President
Phone: 202. 457.0034, ext. 129
Email:
LouisC@whistleblower.orgContact: Dylan Blaylock, Communications Director
Phone: 202.457.0034, ext. 137
Email:
DylanB@whistleblower.org
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