I agree that Congress is sorely in need of something akin to the Church Committee, which documented decades of law enforcement abuses against civil liberties groups. However, I don't agree that the Foreign Intelligence Surveillance Act court needs more secret judges.
The FISA court was specifically tailored to provide a check and balance between Fourth Amendment principles and the government's authority to use electronic surveillance for foreign intelligence purposes. Instead, this secret court, which hears from only one side (the government's), is basically a rubber stamp of whatever the executive branch wants to do.
In fact, we wouldn’t be having this debate at all but for the brave disclosures of Edward J. Snowden. The court issues secret orders containing secret interpretations of law and has far exceeded its jurisdiction by deciding that indiscriminate mass domestic surveillance is consistent with a democracy and constitutional norms.
Any investigative body tasked with evaluating the damage done by the still-expanding surveillance state will need more than whistle-blowers and journalists. It will need meaningful investigative authority, teeth to force powerful executive agencies and corporations to cooperate with its investigation, and the ability to impose consequences for wrongdoing.
Meanwhile, both whistle-blowers and journalists are facing criminal consequences; the United States has branded whistle-blowers as spies and accused journalists of being criminal co-conspirators. Protecting those who exposed government lawbreaking is as necessary as holding the lawbreakers accountable.
Washington, Sept. 4, 2013
The writer is the director of national security and human rights at the Government Accountability Project.
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Revelations by National Security Agency (NSA) contract employee Edward Snowden have seized the attention of the world and sparked a national debate about government surveillance and privacy. Snowden’s disclosures pose two questions that strike at the heart of any democracy. What are the American people entitled to know about their government? And, what is the government entitled to know about the American people?
Since 9/11, the United States has in secret developed a massive surveillance industrial complex, which grows exponentially even as the American public learns of repeated waste, fraud, illegality and abuse of power at intelligence agencies. Under the guise of protecting national security, the executive branch has systematically and secretly spied on millions of innocent Americans, and when caught, demanded changes in the law to retroactively justify its actions – only to secretly violate those even broader legal powers.
The courts, Congress, and the executive branch have abdicated their duties to rein in the national security state and protect individual liberty, leaving that responsibility to a 30-year-old technical analyst watching his country’s spiral descent toward a “turnkey tyranny.”
Although President Obama said he welcomes the debate that followed Snowden’s revelations, our experience representing whistleblowers provided a sobering prediction about how the government would react to Snowden himself. The Government Accountability Project (GAP) began 36 years ago when whistleblowers exposed pervasive executive-branch surveillance of innocent citizens, and massive secrecy about the Vietnam War.
We believed then, and history has proven, that whistleblowers are at the forefront of the struggle to preserve democracy.
Secretive institutions such as the Foreign Intelligence Surveillance Court are not up to the task assigned to them. This court issuing secret rulings based on classified arguments is an unprecedented and extraordinary disaster. On its watch, millions of innocent Americans have had their rights abridged and privacy invaded. Until Snowden went to the press, few Americans knew that their phone companies, Internet providers or social media facilitators were compelled to secretly allow to government to collect personal information.
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Edward Snowden was employed by an intelligence firm working for the National Security Agency (NSA) and disclosed documents about a secret program that he reasonably believed violated the law. His revelations are performing a vital public service. As a nation, we are now entering into a more informed national debate about what sacrifices Americans are willing to make to enhance their actual security. Clearly, Snowden is a NSA whistleblower.
Secret programs, enforced by the threat of criminal investigations and Espionage Act prosecutions, have ensured that no such debate was previously possible. The Government Accountability Project (GAP) has represented seven NSA whistleblowers who are facing or have endured such threats. In addition, all of us as Americans have seen the unprecedented leak investigation conducted by the Department of Justice to obtain the phone records of scores of journalists from the Associated Press and Fox News.
Three NSA whistleblowers, whom we represent, confidentially filed and cooperated with a Department of Defense Inspector General Office (IG) investigation into waste and illegal surveillance at the agency. After first going up the chain of command, they went to the IG, which validated their concerns. Unfortunately, the IG also turned their names over to the FBI, which then raided their homes, launched numerous criminal investigations and indicted one of them, Thomas Drake, for espionage. Eventually the prosecution fell completely apart, and the federal judge admonished the Department of Justice for even bringing the case.
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At the Government Accountability Project (GAP), we do a fair amount of international work on whistleblower protection legislation. Often we advise governments on provisions they should include, if their new law is to be effective. These clauses are numerous and complex, and at some point in the discussions, we pause to say that no matter how comprehensive the law, if the country enacting it lacks either an independent judiciary or a free press, the legislation is little more than a good-government charade.
As Americans, we've been comfortable speaking about these prerequisites for effective whistleblower protections for a long time. Two weeks ago, however, at the International Whistleblower Research Network in London, this changed. As we spoke, Edward Snowden, the NSA whistleblower, was in hiding in Hong Kong, and we were discovering what our government had done to prevent him from disclosing more about its electronic surveillance of ordinary civilians.
A secret indictment had been filed against Snowden for revealing that a secret court had secretly interpreted U.S. law to allow the super-secret National Security Agency (NSA) to collect digital data secretly on American citizens. The NSA was, of course, also collecting such data on civilians the world over, for purposes, we're told, of ferreting out terrorist plots.
Before Snowden exposed the workings of the Foreign Intelligence Surveillance Act (FISA) court, few Americans knew much about it. In fact, our acquaintance with this 35-year-old court is quite recent. From the Washington Post:
Last week, President Obama misled the public when he told a comedian Jay Leno that protected legal channels exist that Edward Snowden could have used to challenge government misconduct:
I can tell you that there are ways, if you think that the government is abusing a program, of coming forward. In fact, I, through Executive Order, signed whistleblower protection for intelligence officers or people who are involved in the intelligence industry.
This message is false. And the President repeated it at his press conference a few days later. Obama is referring to Presidential Policy Directive #19. If the President had bothered to read his own Executive Order, he would have known that it was not implemented at all when Snowden blew the whistle on the National Security Agency. Further, it fails to provide protected legal channels to contractor positions such as Snowden’s.
Thomas Drake, a former senior executive at the NSA, is living proof of how insidious the “channels” argument is. Shortly after 9/11, he complained about NSA programs that were embryonic versions of what Snowden is now revealing. He complained that NSA foreign collection programs were being turned inward on Americans. One of those programs, Stellar Wind, stripped off data anonymization features, auditing trails, and other privacy protections that were available in a cheaper, effective, and non-intrusive program called ThinThread.
Drake complained to his boss, to the NSA Inspector General, and—with three other retired NSA colleagues and a former House intelligence staffer–to the Department of Defense Inspector General. The Inspector General substantiated their claims, but immediately classified its report to keep it out of public view. (Most portions are now unclassified and never had to be.)
Drake then served as a material witness in two key 9/11 investigations. He told Congress about multiple secret domestic surveillance programs, including Stellar Wind, and critical indications and warning intelligence about al Qaeda and associated movements pre- and post-9/11, which NSA did not share.
After the infamous New York Times article that revealed NSA’s warrantless wiretapping of Americans, the Justice Department launched an investigation—not of the U.S.’s vast lawbreaking, but for those who exposed the secret surveillance. That multi-million dollar investigation spanned five years, required five full-time prosecutors and 25 FBI agents.
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Although Drake and his colleagues were not sources, they were made targets of this federal criminal “leak investigation.” The IG that had promised them protection and confidentiality sold them out to the Justice Department, and Congress failed to protect its witness, Mr. Drake. This was just one element of ruinous retaliation that went on for years and in some respects has not yet ended. Reprisals included getting fired, having security clearances pulled, armed raids on their’ homes, shattered relationships with friends and family, and depletion of retirement accounts and second mortgages to pay attorneys’ fees.
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Edward Snowden should not be prosecuted for mishandling classified information, and certainly not under the Espionage Act.
The Justice Department has led an unprecedented crackdown on “leakers,” who more often than not are whistle-blowers — public servants who expose fraud, waste, abuse and illegality. (And information that has been classified to cover up government wrongdoing has not been properly classified.)
I represent John Kiriakou and Thomas Drake, who blew the whistle on two of the biggest scandals of the Bush administration — the use of torture, and secret domestic surveillance, respectively.
After disclosure of the warrantless wiretapping, the government retroactively legalized it and immunized the telecoms.
Torturers have been glorified in movies (which benefited from close government cooperation and a cascade of government leaks), written books divulging classified information (including sources and methods), and been given a pass by President Obama’s “look forward, not backward” policy.
Meanwhile, the government launched a series of Espionage Act prosecutions against the people in the intelligence and national security community who spoke out against the secret, dark side of U.S. conduct post 9/11.
The Espionage Act is a century-old law that is meant to go after spies, not whistle-blowers. The government dropped all the espionage charges against Kiriakou and Drake, but continues to use the Espionage Act as a blunt instrument to bankrupt, isolate, intimidate and silence whistle-blowers. Even when the government drops all felony charges against them, as it did in Drake’s case, the stigma of being labeled an “enemy of the state” is indelible.
As happens in every whistle-blower case, the government attacks the messenger rather than listening to the message. Whistle-blowers like Snowden are invariably smeared as being deviant misfits who are out for fame, profit, revenge, or self-aggrandizement. Already, Snowden has been called a “grandiose narcissist” and traitor, and he’s been public for 72 hours.
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When General Michael Hayden sat down to tape Fox News Sunday
, he blinked quickly and acknowledged Chris Wallace's introduction. Then, in response to Wallace's third question, he proceeded to tell a huge whopper, without ever losing eye contact with the camera and the audience. That would be us.
General Hayden disputed the fact that Edward Snowden, the former National Security Agency (NSA) contractor who disclosed the wholesale electronic surveillance of Americans, is a whistleblower. Because Snowden did not make his disclosures through internal channels at the NSA, Hayden strongly implied - without actually saying so - he is a traitor.
Look, a whistleblower is someone who raises concerns within our government in order to affect change. There is no evidence whatsoever that this young man warned anyone, went to his supervisor, his supervisor's boss, even to the congressmen. No evidence of that whatsoever. What he did was go to Glenn Greenwald and some other news outlets and publish information that he may, in his own conscience, believe we need to be concerned about. But what he did was not tell the appropriate authorities. He told the world, including our enemies. And he's made it more difficult for our security services to keep America safe.
To be sure, Snowden did not go to his supervisors or to the Congress. He did not do this because four other NSA whistleblowers (only three of whom are public) had already done it, and they had been subjected to demotion, termination and FBI raids. One of them was indicted under the Espionage Act and investigated for four years before the charges imploded. The unfortunate Congressional staffer who supported their allegations was also raided at home by the FBI and is now suing the government for the return of her personal effects.
Snowden did not follow this same course because he was aware of what had happened. He has said as much.
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By Jesselyn Radack
In 1971, Richard Nixon’s administration charged Daniel Ellsberg and Anthony Russo, the men who leaked the classified Pentagon Papers, under the Espionage Act. The case was eventually dismissed due to government misconduct. With the guilty verdict against Pfc. Bradley Manning, President Obama has won what Nixon could not: an Espionage Act conviction against a government employee accused of mishandling classified information. Obama’s administration has relied heavily on the draconian World War I-era law — meant for prosecuting spies, not whistleblowers — in its ruthless, unprecedented war on “leaks,” invoking it seven times (more than all other U.S. presidents combined) to go after people who reveal information embarrassing to the United States, or, worse, that exposes its crimes.
Until this week, this extreme crackdown had failed. I represent two of the whistleblowers whom the Obama administration at one time charged with espionage: former National Security Agency senior executive Thomas Drake and former CIA agent John Kiriakou. Not coincidentally, they exposed two of the biggest government scandals of the Bush administration — secret domestic surveillance and torture, respectively.
A little-known fact is that the government ended up dropping all espionage charges in both cases. In contrast, this did not happen in the case of Manning: A military judge convicted him on six espionage counts, among other charges. A key difference is that Manning’s trial occurred in a court-martial, significant parts of which were conducted in secret. The trial was barely covered by most media outlets, and those that did cover it closely were thwarted at every step by restrictive, arbitrary and ever-changing press rules from the Army’s Public Affairs Office. Thus the government was able to avoid the public and media scrutiny that assisted Drake and Kiriakou.
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Now that the verdict is in for Bradley Manning, Edward Snowden has been awarded asylum in Russia. The Manning conviction on six counts of espionage showed clearly that Snowden has a well-founded fear of persecution in the United States. Although he would be tried in a civilian rather than a military court, he could be incarcerated for decades for releasing classified information, even if the information should never have been classified in the first place.
The material released by Snowden exposed the fact that our national security agencies are spying on us, in violation of our constitutional rights under the First, Fourth and Fifth Amendments - our rights to freedom of speech, freedom of association and freedom from unreasonable search and seizure. Before Snowden blew the whistle on the US intelligence apparatus, we didn't know this, and for his actions, Snowden is now an enemy of the state.
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In the second part of his interview with Glenn Greenwald and Laura Poitras, Edward Snowden said, "Our government will say I aided our enemies." The retroactive prediction was accurate. Although the clip was released on July 8, it was recorded on June 6, well before government officials let fly the charge of treason.
Snowden was prescient. In the weeks after his first disclosures, many US politicians called him a traitor who gave aid, comfort and secrets to enemies of the U.S. The pundits also piled on. David Gregory of Meet the Press went so far as to suggest that journalist Glenn Greenwald, too, should be charged with a crime for actions that "aided and abetted" Snowden.
Then, on June 23, The New York Times published this:
Two Western intelligence experts, who worked for major government spy agencies, said they believed that the Chinese government had managed to drain the contents of the four laptops that Mr. Snowden said he brought to Hong Kong, and that he said were with him during his stay at a Hong Kong hotel.
The allegation was based on information provided by sources "...who like many in this article spoke on the condition of anonymity [in order ] to talk freely about confidential discussions."
So the Snowden case takes a tricky turn here. The officials who say that Snowden is a leaker who aided enemies of the United States are leaking information, too.
As Peter Hart of Fair Blog points out, the aid-and-secrets-to-the-enemy charges rapidly proliferated without attribution. Hart enumerates some of the reporters who published these anonymous allegations: Ellen Nakashima and Greg Miller of the Washington Post, Barbara Starr of CNN, and Kimberly Dozier at Salon.com, among others.