National Security Agency whistleblower Edward Snowden’s claim that he was exposing illegal and unwarranted government overreach was bolstered this week when a federal judge ruled Monday that the NSA’s mass surveillance is unconstitutional, and a White House panel released tough new proposals to reform the agency Wednesday. But the Obama administration, which has aggressively pursued whistleblowers since 2009, is making it clear that those who do come forward will face a battle.
District Judge Richard Leon’s decision, which called the NSA’s tactics “Orwellian,” was greeted by many as vindication of Snowden’s actions. “Edward Snowden is a patriot,” wrote the American Civil Liberties Union in a blog post. “Monday’s court ruling declaring the NSA surveillance program unconstitutional highlights the irony of the government’s prosecution of Snowden.”
The ruling comes a week after former intelligence workers released an open letter on December 12 in The Guardian, defending Snowden, Army Private Chelsea (formerly Bradley) Manning and John Kiriakou for exposing widespread government surveillance tactics, under-reported civilian casualties in Iraq and Afghanistan, and the systemic torture of terrorist suspects. The authors, some of whom are ex-CIA and U.S. military, encourage those who can’t successfully report issues through the chain of command take more drastic measures.
Potential whistleblowers may have been emboldened by the court win and the panel’s recommendations, but the White House is still taking a hard line on Snowden to discourage future leaks.
The White House announced Monday that it would not grant amnesty to Snowden, who is currently taking refuge in Russia, and would pursue all charges against him if he returns to U.S. soil.
The announcement is only a taste of what whistleblowers can expect if they follow in Snowden’s footsteps.
Obama’s crackdown on whistleblowers
Under former President George W. Bush, the U.S. Department of Justice had a poor track record of prosecuting individuals who leaked national security information. By 2009, the DOJ had been referred more than 150 cases, but failed to indict anyone, The New York Times first reported. But soon after President Obama took office, U.S. Attorney General Eric Holder, Jr., and then appointed national intelligence director, Dennis Blair, conceived a more aggressive strategy to pursue leakers of national security information.
“My background is in the Navy, and it is good to hang an admiral once in a while as an example to the others,” Blair told the Times, “We were hoping to get somebody and make people realize that there are consequences to this and it needed to stop.”
So far, the DOJ, with the help of the U.S. Federal Bureau of Investigation, is working on making good on its promise. In 2012, Obama touted his administration’s record-breaking leak prosecutions. In his first term, Obama oversaw twice as many leak-related prosecutions as all previous presidents combined. The U.S. intelligence community has aggressively investigated hundreds of classified leaks, according to a 2012 report. The DOJ was also caught monitoring journalists earlier this year in an attempt to root out leaks.
There have been seven major prosecutions of intelligence leakers under Obama, most of which gained steam in 2010. One of the first was Thomas Drake, an NSA contractor who was indicted for leaking information regarding the agency’s TrailBlazer, a data-collection surveillance program. Drake pleaded to a minor charge of unauthorized computer use and got probation. The espionage charges against him were dropped to keep from revealing the details of the documents he took.
Penalties for FBI classified media leaks range from Drake’s probation to ex-CIA officer John Kiriakou’s 30-month prison sentence. Kiriakou was charged and convicted in a matter of months in 2012 for revealing information about the military’s use of waterboarding in a 2007 ABC News interview. Kiriakou wrote Snowden an open letter from federal prison this summer, advising him to find good attorneys and garner support by setting up a website to collect donations for his defense, and, most importantly, to “not, under any circumstances, cooperate with the FBI.”
Manning, who was tried in military court, received a 35-year sentence for posting counterterrorism documents and videos showing massive civilian casualties — sending a clear no-tolerance message to potential emulators. White House and Pentagon officials have defended this harsh treatment by arguing that Snowden, Manning, and others were not whistleblowers but traitors who compromised national security.
Intelligence whistleblowers need protection, reform
Despite the recent crackdown, there’s a rally for change. Last week’s open letter from several former intelligence workers, domestic and foreign, called for current employees to heed their consciences and speak out against job duties that “undermine democracy and erode civil liberties.”
The letter goes on to say, “Hidden away in offices of various government departments, intelligence agencies, police forces and armed forces are dozens and dozens of people who are very much upset by what our societies are turning into: at the very least, turnkey tyrannies. One of them is you.”
But if more whistleblowers are to come out, protections need to be far stronger.
Currently, intelligence officers must report issues to their supervisors before going to lawmakers, a rule that can discourage people from coming forward out of fear of retaliation.
Potential whistleblowers with security clearances should be able to “bring classified concerns about misconduct, abuse and illegal activity to the intelligence committees confidentially and without endangering their careers,” former CIA and State Department Fred Fleitz wrote shortly after Snowden’s revelations.
There’s been an ongoing movement to change those rules, most notably by updating the Whistleblower Protection Act, which protects a “covered employee” who discloses information they believe is unlawful or shows fraud, mismanagement, abuse of authority or poses a danger to the public’s health or safety. But there’s a loophole: Intelligence employees for the CIA, FBI, NSA, among others, are exempt from these protections.
Whistleblowers in the military, like Manning, also have few options. Despite having its own whistleblower law, less than a third of cases brought to the U.S. Department of Defense are investigated, and only 5 percent are determined to have legally sufficient evidence.
To fix these issues, Congress has drafted legislation to bolster the military’s whistleblower protections. The White House review panel also flagged concerns over whistleblower vulnerabilities. The report suggested creating some safe harbors for intelligence whistleblowers, giving them a way to report issues to an independent board rather than using the government’s chain of command. Those recommendations, however, aren’t binding and may be rejected.