WASHINGTON - January 3 - In June 2013, the American public learned conclusively about the wholesale surveillance of virtually all Americans through secretive programs by the National Security Agency (NSA) that continue to be implemented today. These programs collect the phone records, email exchanges, and internet histories of people all over the world who would have no knowledge of this were it not for the disclosures of former federal contractor Edward Snowden.
As legal counsel to Snowden as well as the nation's leading whistleblower protection and advocacy organization, the Government Accountability Project (GAP) would like to make its position clear on the following:
I. SNOWDEN IS A WHISTLEBLOWER.
Snowden disclosed information about programs that he reasonably believed to be illegal and abusive. In December 2013, this position was supported by a legal opinion by U.S. District Judge Richard Leon, who questioned the legality and the effectiveness of the bulk telephony metadata program, declaring it "likely unconstitutional."
Days later, a hand-picked White House panel of intelligence and legal experts bolstered this ruling with 46 recommendations to rein in the national surveillance apparatus, including a specific recommendation to terminate the bulk metadata collection program on American citizens by the NSA.
Snowden's revelations were undeniably in the public interest and have given rise to:
- governmental and corporate reforms all around the world
- more than two dozen bills in Congress
- half a dozen lawsuits
- an understanding that the Director of National Intelligence lied in testimony to Congress
II. THERE IS A PATTERN OF ABUSE BY THE NSA
Although there have been repeated claims to the contrary, there is a long history of NSA overreach and abuse with respect to its surveillance powers. Most recently, a Freedom of Information Act (FOIA) lawsuit filed by Electronic Frontier Foundation and American Civil Liberties Union in May 2011 revealed a FISA court opinion from 2009 indicating that at one point just 11% of the phone numbers captured in the phone metadata surveillance program met the legal requirement of "reasonable articulable suspicion."
These known "compliance incidents" led the FISA court to conclude that the legal threshold for surveillance had been "so frequently and systematically violated that it can fairly be said that this critical element of the overall … regime has never functioned effectively." At one point, internal audits alone revealed an average of no less than seven, supposedly inadvertent, misuses of the system per day. Known abuses include efforts by NSA employees to spy on intimate friends, known among analysts as LOVEINT. Other questionable programs include an effort to discredit Muslims through tracking and publicizing their online pornography practices.
III. 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 personality traits have all been called into question by government officials and pundits who engage in the reflexive response of institutional apologists. Officials often speak speculatively off the record to reporters who parrot their opinions without verification or attribution. There can be no mistake that these personal attacks constitute retaliation. 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.
IV. THE ISSUE IS THE MESSAGE AND NOT THE MESSENGER.
As a matter of course, whistleblowers are defamed, when 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.
V. PERVASIVE SURVEILLANCE DOES NOT MEET THE STANDARD FOR CLASSIFIED INFORMATION.
Many have condemned Snowden for disclosing classified information, but documents cannot be classified in order to cover illegal or embarrassing government conduct. 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.
VI. 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 on hundreds of 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.
VII. 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, as these same officials know well. 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 Binneyand 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 and Wiebe to career-ending reprisal, while Drake became the target of a multi-year criminal investigation. All three whistleblowers, together with the congressional staff member to whom they disclosed NSA waste and abuse, were subjected to armed 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.
VIII. 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 specific, repeated exception of employees in the national security and intelligence communities. The Obama administration has conducted an unprecedented campaign against national security whistleblowers, bringing more than twice as many 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. Not one person from the NSA has been charged for ordering, justifying or participating in the NSA's domestic spying operation. Nor has any government official been penalized for lying to the public or the Congress.
IX. IN THE SURVEILLANCE STATE, THE ENEMY IS THE WHISTLEBLOWER.
Dragnet electronic surveillance is a high-tech revival of programs such as COINTELPRO and tactics used to attack the civil rights movement and political enemies by the FBI and NSA until 1971. 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.
X. AS A WHISTLEBLOWER, SNOWDEN SHOULD RECEIVE AMNESTY.
Several high-profile opinion pieces in the New York Times, The Guardian and other publications in 2013 and 2014 have called for some form of amnesty or clemency to be extended to Snowden. In consideration of the dearth of protections available to him as a whistleblower in the intelligence community, as well as the Constitutional violations exposed, GAP also asserts that it would be just and equitable to grant amnesty to Snowden.