Category Archives: Whistleblower

Hans-Christian Ströbele - Obama should pardon Edward Snowden

Hans-Christian Ströbele

Green party member of the German Bundestag

Hans-Christian Ströbele

Snowden could be awarded the Nobel Peace Prize, which would bestow him a certain degree of immunity in the US

When I met Edward Snowden in Moscow in October 2013, he told me that he would eventually like to live in a country where democracy and the rule of law are respected. I can think of two ways to make that happen.

First, President Obama could pardon Snowden at the end of his last term, in the way other outgoing presidents have done in the past. Second, Snowden could be awarded the Nobel peace prize, which would bestow him a certain degree of immunity in the US even if he isn’t pardoned: during the cold war, for example, we saw that Soviet Union was unwilling to prosecute people who had been awarded with such an internationally recognised honour.

The key to both of these solutions doesn’t lie in our hands, but there is something we all can do. Like Oliver Stone’s new film, we can try to help emphasize that there is another side to Snowden’s story than the one that prevails in the US media: that this is a man with a lot of integrity, who did a great merit for the civil rights and privacy for the mankind and who knew what he was doing when making a extremely risky decision.

Lawrence Wilkerson - Obama should pardon Edward Snowden, and yet ...

Lawrence Wilkerson

Retired US army colonel and former chief of staff to US secretary of state Colin Powell

lawerence wilkerson

Frankly, I believe that were Snowden to return to the US, he would be treated badly; so much so, that even if he were fully pardoned – and could convince himself that that were truly so – he still would still be treated very badly.

I’m certain that most of the following of Donald Trump would want him in prison for life at best and hanged at worst.

That, sadly, is the nature of our country these days (some would argue we have always been thus and point to all manner of cases from the Salem witch trials to Alger Hiss, to the Rosenbergs, to the San Francisco 49ers quarterback now being shouted down for his refusals with respect to the US national anthem). Snowden’s actions, in many minds, constitute treason. I’m quite certain that most of the following of Donald Trump, for example, would want him in prison for life at best and hanged at worst.

After listening to Snowden on tape and video multiple times, I believe him to be a highly courageous and extremely ethical young man. He just might be the type who could weather such a storm and lead an otherwise productive life, like Daniel Ellsberg has for example. That might make him a martyr to some; but he will remain a villain to many others.

Am I for pardoning him? I would have to know a great deal more about the real impacts of his revelations – not the lies the government tells – before I could formulate my view. None of this truth is about to be forthcoming, so I really cannot make an informed judgment. It’s shameful because I don’t think any reasonable citizen can.

Elgar, T - Why Obama should pardon Edward Snowden - 20160914

I have signed on to the letter asking President Obama to pardon Edward Snowden that was released today.  I know this will be an unpopular position among many of my former colleagues in the national security community.  My reasons for doing so are not fully captured by that letter.  They are different from those who see Snowden simply as a hero and the NSA as the villain.  I have concluded that a pardon for Edward Snowden, even if he does not personally deserve one, is in the broader interests of the nation.

Around the time Edward Snowden got his first job in the intelligence community, I decided to leave my position as an ACLU lawyer in the hope I could make a difference by going inside America’s growing surveillance state.  Surprisingly, senior intelligence officials took a chance on hiring me in a unique new office safeguarding civil liberties and privacy.  I began work in June 2006.

For the next seven years, I worked with a growing team of internal privacy watchdogs inside the intelligence community.  We reviewed the most secret surveillance programs in government, including the major programs that Snowden later leaked.  Our job was to ensure those programs had a firm basis in law and included protections for privacy and civil liberties.  While I am proud of the work we did, it is fair to say that until Snowden stole a trove of top secret documents and gave them to reporters in 2013, we had limited success.  It took a Snowden to spark meaningful change.

The NSA’s operations are essential to national security and to international stability, but it is hard to reconcile them with the values of a free society.  Snowden forced the NSA to become more transparent, more accountable, more protective of privacy—and more effective.  Today, the NSA’s vital surveillance operations are on a sounder footing—both legally and in the eyes of the public—than ever before.

For that, the United States government has reason to say, “Thank you, Edward Snowden.”

The Snowden Reforms

In the last four years, there have been more significant reforms to mass surveillance than we saw in the four decades before the Snowden revelations began.  Not since the post-Watergate reforms of the Ford and Carter administrations has the intelligence community faced such scrutiny.  The NSA has taken painful steps to open up.  The most secret of the government’s secret agencies will never be a model of transparency.  Still, it has never been more transparent than it is today.

Before Snowden, basic information like the number of targets of the NSA’s mass surveillance operations affected by court-ordered surveillance was a closely-guarded secret.  Today, the head of the intelligence community publishes an annual transparency report that provides these and other details.

Before Snowden, the NSA used a secret interpretation of the Patriot Act to amass a nationwide database of American telephone records.  Congress has now replaced this program of bulk collection with an alternative program that leaves the data with telephone companies.

Before Snowden, the secret court that authorizes intelligence surveillance never heard more than the government’s side of the argument. Now, outside lawyers routinely appear to argue the case for privacy.

Before Snowden, there was no written order, directive or policy that gave any consideration to the privacy of foreigners outside the United States.  When intelligence officials asked lawyers like me about privacy, it went without saying that we were talking about American citizens and residents.  Today, for the first time in history, apresidential directive requires privacy rules for surveillance programs that affect foreigners outside the United States.  In an agreement with the European Union, the American government has been forced to adopt new protections for foreign data. In the next few years, the NSA’s partners in the United Kingdom will have to justify the surveillance practices of both countries in court against human rights challenges.

In 2017, Congress will review PRISM—a program leaked by Snowden that allows the NSA to obtain e-mails and other communications from American technology companies.  The law that provides authority for PRISM expires at the end of the year. The law also gives the NSA access to the internet backbone facilities of American telecommunications companies, in a program called “upstream collection.”  Until Snowden leaked details about PRISM and upstream collection, little was known about how the law worked.  Thanks to Snowden, the debate over whether and how these programs should continue will be one in which the public is reasonably well informed – unlike the debates in Congress over the Patriot Act in 2001, 2005, 2009, and 2011, over the Protect America Act in 2007, over the FISA Amendments Act in 2008 and 2012, and over the constitutionality of the FISA Amendments Act in the Supreme Court in 2013.

The NSA’s new transparency about its surveillance operations showed that they were designed not to bring about a dystopian society where privacy would be abolished, but to collect intelligence vital to the national security.  To be sure, Snowden’s trove of documents and the investigations that followed showed some programs were more effective than others.  The same privacy board that reviewed PRISM said that the NSA’s bulk collection of American telephone records had “minimal value.”  The board could find “no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”  Still, there has been remarkably little evidence of intentional abuse of the NSA’s sweeping powers for improper purposes unrelated to intelligence.  None was revealed by Snowden.  In response to inquiries from Congress in the fall of 2013, the NSA itself disclosed that itsinspector general had uncovered a dozen incidents over ten years in which analysts used overseas collection to spy on ex-girlfriends.

As a result, the programs Snowden exposed have all survived in some form.  In the case of telephone records, the NSA says that the privacy reforms adopted by Congress have actually resulted “access to a greater volume of call records” than before. Many of the NSA’s other mass surveillance programs also enjoy greater public support and legitimacy than they did before Snowden came along.  As Jack Goldsmith observeswryly, “These are but some of the public services for which the U.S. government has Snowden to thank.”

A Failure of Leadership

Edward Snowden’s actions caused great damage to national security.  They should not have been necessary to achieve the sensible reforms of the past four years.  That they were represents a failure of leadership by the intelligence community and the national security teams of the previous two administrations.  For me, that failure is at least in part a personal one.

As a privacy and civil liberties official inside the intelligence community, and later at the White House, my job was precisely to provide top officials with confidential advice about how to ensure that intelligence programs were protective of our liberties.  In doing so, I made just the sort of arguments that many have said Snowden should have raised internally instead of compromising classified information.  Unlike Snowden, I had direct access to the officials that could have made surveillance reform a reality—and who did so, after the Snowden leaks forced their hand.  There is no way a junior NSA contractor could have accomplished more.

Snowden’s critics argue that he should have made his concerns about privacy known through official channels without disclosing secrets and without breaking the law.  That would have achieved nothing—even in an imaginary world in which the agency had a perfect system for protecting whistleblowers.  Snowden’s concerns were not those of a traditional whistleblower.  Snowden’s complaint was not that the NSA was violating its rules, but that its aggressive pursuit of its mission—even as it largely adhered to its existing rules – posed a serious risk to privacy in the digital age.  If Snowden was wrong about mass surveillance being an “architecture of oppression,” he was certainly right about that, as many government officials have now acknowledged.

There is an inherent tension between the values of a free society and mass surveillance.  For Snowden and his supporters, the answer is easy.  End mass surveillance—which is to say, most of what the NSA does.  Those of us who believe that the NSA’s far-flung operations are essential to national security and global stability have the harder task of keeping mass surveillance under control.

If Snowden deserves our thanks for both this round of surveillance reform and thenext, it is only because the laws and institutions we created to control surveillance had become so obsolete.  Intelligence agencies should not need the shock of massively damaging leak to abandon programs that are not working and refine and improve those that are.  Disclosing details of classified programs should not be the most effective way to force change.

What Do We Do With Snowden?

It makes no sense for the United States government to pursue Snowden like a digital age Inspector Javert while at the same time admitting that his actions strengthened both our civil liberties and our national security.  This is especially true because it was the intelligence community’s own shortcomings that made his reckless leak the only effective way to achieve reform.

If Snowden returned to the United States today, of course, he would have to stand trial for disclosing classification communications intelligence, among other serious crimes.  This will never happen.  Snowden’s lawyers know he would likely be convicted and would face a lengthy prison term.  Under federal sentencing guidelines, an offender with no criminal history who is convicted of disclosing “Top Secret” communications information under 18 U.S.C. § 793(d) faces a prison term in the range of 168-210 months, or 14 to 17.5 years.  See U.S.S.G.M. § 2M3.2.  Snowden might face a considerably longer sentence if convicted of additional charges, or as a result of sentencing enhancements.  Naturally, Snowden prefers to stay abroad.

The law does not allow the public interest defense that Snowden says he wants, nor should it.  Permitting such a defense would encourage copycats.  A Snowden wannabe might hope his lawyer could convince a credulous jury that his leaks also had some positive outcome, even if the benefits were scant.  The Snowden disclosures were a unique watershed event, resulting in historic reforms.  It is highly unlikely a future leak of classified surveillance information would produce such positive change.

While Snowden might be enticed to return if offered a favorable plea agreement, negotiating such a deal would create poor incentives. One idea, favored by the top lawyer for the intelligence community, was for Snowden to plead guilty to a single felony charge and serve three to five years in exchange for his help undoing the damage he caused.  Through his lawyer, Snowden has said he would never plead guilty to a felony.  If a plea deal was ever really on the table, Snowden has less to offer every day, as the information he leaked becomes stale and the intelligence community moves on.  In any event, the Justice Department rightly objects to negotiating plea agreements with fugitives, to avoid giving those who flee prosecution an advantage over those that do not.

The Status Quo

Nevertheless, the status quo is clearly not in American interests.  Snowden’s exile in Russia is a continuing embarrassment.  Snowden has become a potent symbol for privacy and civil liberties, human rights, and an open internet in which surveillance operations are controlled by law.  His presence in Moscow is a gift to Vladimir Putin, allowing the Russian president to cynically pose as a defender of digital human rights.  Every time Snowden makes a virtual appearance before his admirers, the unspoken message is that he has been forced to seek asylum because the United States opposes these values.  The message is no less effective for being false and unfair.

By contrast with a trial or a plea agreement, a pardon is an unreviewable act of discretion by the president.  Presidents have used them not only to correct injustices, but also when the broader interests of the nation outweigh the importance of punishing a crime even where some punishment is clearly deserved.  Gerald Ford pardoned Richard Nixon to help the country move beyond Watergate.  Jimmy Carter pardoned draft dodgers to close the chapter on the Vietnam War.

Pardons are exceedingly rare.  A pardon sets no precedent and so creates no incentives.  Future leakers could not count on one.  Even if Snowden does not deserve a pardon for what former Attorney General Eric Holder called his act of “public service,” we should give him one and move on.  We are the good guys. It is time for the world to know it again.

Timothy H. Edgar is the academic director of law and policy at Brown University's Executive Master in Cybersecurity program, and visiting scholar at Brown University’s Watson Institute for International and Public Affairs. He was the first-ever director of privacy and civil liberties for the White House National Security Staff during President Obama’s first term, focusing on cybersecurity, open government, surveillance and data privacy. Under George W. Bush, Mr. Edgar was the first deputy for civil liberties for the director of national intelligence, from 2006 to 2009. He was the national security counsel for the American Civil Liberties Union from 2001 to 2006. He clerked for Judge Sandra Lynch, United States Court of Appeals for the First Circuit. He is a graduate of Harvard Law School and Dartmouth College.

Canadian government expects another Snowden-level leak, documents say - Toronto Star 20160709

Canadian government expects another Snowden-level leak, documents say - Toronto Star 20160709

Revelations about Five Eyes mass surveillance has “changed the tone” on Internet issues, but Canada wants free and open cyberspace.

It’s not a matter of if there will be another Edward Snowden, it’s a matter of when, according to internal government documents obtained by the Star.

Global Affairs officials warned minister Stéphane Dion in November an event on the scale of Snowden’s disclosures about Internet surveillance is inevitable.

“Incidents similar to the Snowden disclosures and the Sony hack will happen again and we can expect that sudden events will affect international debates on cyberspace,” the document reads.

The briefing note, prepared for Dion in November and obtained under access to information law, suggests that Snowden’s disclosures about Western mass surveillance “altered the tone” of the international discussion on cyberspace.

In 2013 Snowden, a former employee of the U.S. National Security Agency (NSA), pulled back the curtain on mass surveillance online, detailing the capabilities of the “Five Eyes” countries — Canada, the United States, the U.K., Australia and New Zealand — to monitor activity online. His release of classified NSA documents triggered outrage among those who said he put lives at risk, and praise from others who argued he shed light on questionable practices and has forced needed change. He was forced to flee the U.S. and was granted asylum in Russia.

Then in 2014, hackers broke into Sony company computers and released thousands of emails, documents and sensitive personal information. U.S. federal investigators blamed North Korea.

While Canada has long advocated for an open and free Internet, suggestions that the nation’s spy agency the Communications Security Establishment (CSE) has engaged in mass online surveillance have complicated that narrative.

But the documents state Ottawa remains committed to a free Internet — not only from a democratic point of view, but for the potential for Canadian businesses and consumers to access ever-broadening online markets.
“The Internet owes its success to its open design, its global and interconnected nature, and its flexible and inclusive governance structure,” the documents read.

“All states are grappling with how to harness the potential of networked technologies while managing their far-ranging impacts … The goal (for Canada) is to protect human rights and democratic space, recognize legitimate public safety needs, and preserve the openness and dynamism that has brought about such enormous benefit.”

In a statement Saturday, a spokesperson for Global Affairs said the federal government believes that protecting online privacy and supporting human rights go hand in hand.

“Canada is concerned about rising threats emanating from cyberspace, including from repressive governments and their proxies, as well as the growing threats posed by cybercrime and terrorists’ use of the Internet,” wrote spokesperson John Babcock in an email to the Star.

“While addressing cyber threats, we must not legitimize Internet controls that will be used to restrict human rights and freedoms and hinder the free flow of information.”

The Star reported in 2015 that CSE has stepped up their efforts to guard against “insider threats” since Snowden shared an unprecedented trove of intelligence documents with journalist Glenn Greenwald in 2013. The move was also prompted by a Halifax-based Royal Canadian Navy officer, Jeffrey Delisle, who sold secrets to Russia in 2012.

“Following the unauthorized disclosures of Canadian Navy Sub-Lieutenant Jeffrey Delisle and NSA contractor Edward Snowden, CSE has intensified its efforts to tighten already stringent security,” read CSE’s 2013-14 report to the minister of national defence.

The documents note that Canadian media coverage about Internet security has tended to focus on large-scale hacks, such as the 2014 breach at the National Research Council, or the Heartbleed exploit used on the Canada Revenue Agency that same year.

But officials make clear Canada’s interest in the file goes beyond playing defence against malicious actors. The documents note that a number of “authoritarian regimes” are hoping to impose greater control over their citizens’ access to cyberspace.

“Domestically, they employ repression and censorship. Internationally, they lobby for greater state regulation of cyberspace, including calls to bring it under UN control,” the documents read.

“They also seek to rewrite current understandings of international law to shape the international cyber environment to reflect their values and interests. The same states also exploit cyberspace through espionage and theft of sensitive information from government and private sector networks, including those of Canada.”

Officials censored the names of individual countries they accused of such actions, although Ottawa has previously called out China as the hand behind the NRC hack. At the same time, other countries have accused Five Eyes partners of conducting economic espionage of the own.

The documents note that Global Affairs has been involved in a range of activities promoting an open and free internet, including advocating for human rights and freedoms online and committing $8 million over the last decade to promote cyber security in the Americas and Southeast Asia.

Obama's gift to Donald Trump: A policy of cracking down on journalists and their sources - The Intercept 20160406

Obama's gift to Donald Trump: A policy of cracking down on journalists and their sources - The Intercept 20160406

ONE OF THE intellectual gargoyles that has crawled out of Donald Trump’s brain is the idea that we should “open up” libel laws to make it easier to punish the media for negative or unfair stories. Trump also wants top officials to sign nondisclosure agreements, so they never write memoirs that upset the boss. Trump is so disdainful of free speech that he has even vowed to use the Espionage Act to imprison anyone who says or leaks anything to the media that displeases him.

Actually, that last bit is made up; Trump hasn’t talked about the Espionage Act. Instead, the Obama administration has used the draconian 1917 law to prosecute more leakers and whistleblowers than all previous administrations combined. Under the cover of the Espionage Act and other laws, the administration has secretly obtained the emails and phone records of various reporters, and declared one of them — James Rosen of Fox News — a potential “co-conspirator” with his government source. Another reporter, James Risen of the New York Times, faced a jail sentence unless he revealed a government source (which he refused to do).

Obama has warned of the imminent perils of a Trump presidency, but on the key issue of freedom of the press, which is intimately tied to the ability of officials to talk to journalists, his own administration has established a dangerous precedent for Trump — or any future occupant of the Oval Office — to use one of the most punitive laws of the land against some of the most courageous and necessary people we have. One section of the Espionage Act even allows for the death penalty.

Obama’s gift to Trump was unintentionally highlighted in a speech the president delivered last week at a ceremony to honor the winner of the Toner Prize for Excellence in Journalism. Obama lamented the financial challenges facing the journalism industry and lauded the assembled reporters and editors for the hard and vital work they do. He made no mention of the ways in which his administration is making that job even harder, however, and that omission prompted the winner of the prize, ProPublica’s Alec MacGillis, to gently note, “That does not get him off the hook for his administration taking so long to respond to our FOIAs.”

Two years ago, Eben Moglen, a law professor at Columbia University, gave a series of lectures in which he discussed the idea of “fastening the procedures of totalitarianism on the substance of democratic society.” Moglen’s lectures were mostly concerned with surveillance by the National Security Agency — the title of his talks was “Snowden and the Future” — but his idea applies to other procedures the U.S. government has recently become fond of. Few are more important than targeting whistleblowers and journalists, and Obama has begun the fastening process.

The Release, a new film about Stephen Kim, directed by Stephen Maing.

It’s a maddening situation that becomes all the more maddening when you think of the lives of the leakers and whistleblowers the Department of Justice has ruined. I have previously written at length about two of them, Jeffrey Sterling of the CIA and Stephen Kim of the State Department. A new documentary about Kim, directed by Steve Maing and released this week by Field of Vision, the film division of The Intercept, powerfully shows the personal hell of living under Obama’s crackdown. After serving a prison sentence for discussing a classified report on North Korea with Fox’s James Rosen, Kim now finds it impossible to return to his old life. Although he has advanced degrees from Harvard and Yale, he cannot get a foreign policy job because of the taint of being a convicted leaker. Kim now describes himself as “homeless, penniless, family-less,” and adds, “I cannot go back to what I was. That person is gone.”

Leakers and whistleblowers are not just categories of people — they are actual people with names and careers and children and lives that have been unjustly crushed. David Petraeus, the former four-star general and CIA director, leaked far more classified data to his biographer-girlfriend than Sterling or Kim or John Kiriakou, and lied to the FBI about it. Petraeus, however, was let off with a misdemeanor plea bargain, because if you are powerful you can do as you like. That deal is another gift to Trump or any menace-in-waiting. The president has set a precedent that says it’s okay to literally give a get-out-of-jail card to your friends.

Now that we live in the shadow of a political era that goes by two words — President Trump — it’s time for Obama to disavow the precedent he has set. The next time he gives a speech on the importance of journalism and free speech, he should admit he has made a terrible mistake and pardon the people who were wrongly prosecuted, including Manning, Kim, Sterling, Kiriakou, and Thomas Drake. He should ask their forgiveness. Obama does not have the power to stop us from electing a terrible president, but he can limit the damage that one can do.

“Snowden has done a service”: Former Bush official Lawrence Wilkerson applauds the whistleblower - Salon 20160324

“Snowden has done a service”: Former Bush official Lawrence Wilkerson applauds the whistleblower - Salon 20160324

Wilkerson says Snowden did not threaten U.S. security, and, in a perfect world, the whistleblower would be rewarded

“I try to stay up with Snowden,” said Lawrence “Larry” Wilkerson. “God, has he revealed a lot,” he laughed.

A retired Army colonel who served as the chief of staff to Secretary of State Colin Powell in President George W. Bush’s administration, Wilkerson has established himself as a prominent critic of U.S. foreign policy.

He sat down with Salon for an extended interview, discussing a huge range of issues from the war in Syria to climate change, from ISIS to whistle-blower Edward Snowden, of whom Wilkerson spoke quite highly.

“I think Snowden has done a service,” Wilkerson explained. “I wouldn’t have had the courage, and maybe not even the intellectual capacity, to do it the way he did it.”

Snowden’s reputation in mainstream U.S. politics, to put it lightly, is a negative one. In the summer of 2013, the 29-year-old techno wiz and private contractor for the NSA worked with journalists to expose the global surveillance program run by the U.S. government.

His revelations informed the public not only that the NSA was sucking up information on millions of average Americans’ private communications; they also proved that the U.S. government was likely violating international law by spying on dozens of other countries, and even listening to the phone calls of allied heads of state such as German Chancellor Angela Merkel, who subsequently compared the NSA to the Stasi, East Germany’s secret police.

Breaking with establishment political figures, Col. Wilkerson commended Snowden for his work and the way in which he carried it out.

“There’s a logic to what he has done that is impressive,” Wilkerson told Salon. “He really has refrained from anything that was truly dangerous, with regard to our security — regardless of what people say.”

“He has been circumspect about what he’s released, how he’s released it, who he’s released it to,” he continued.

Snowden worked with journalists Glenn Greenwald, Laura Poitras and Ewen MacAskill, and published the revelations in renowned international newspapers, including the Guardian, the New York Times, the Washington Post and Der Spiegel.

“It’s clear to me from listening to his personal statements — I think those are important — that he did have a genuinely altruistic motive for doing it,” Wilkerson explained.

“Snowden seems to me to be pure as a driven snow,” he laughed. “You can be dangerous if you’re that way, but you can also be helpful. And I think he’s been more helpful than dangerous.”

The whistle-blower himself says he has always been incredibly careful about what exactly he discloses, and to whom. “I carefully evaluated every single document I disclosed to ensure that each was legitimately in the public interest,” Snowden told the Guardian. “There are all sorts of documents that would have made a big impact that I didn’t turn over.”

Wilkerson believes the whistle-blower. Many American officials do not.

Politicians on both sides of the aisle have accused Snowden of a slew of crimes, and the Obama administration charged the whistle-blower on two counts of violating the 1917 Espionage Act and theft of U.S. government or foreign government property.

President Barack Obama has harshly cracked down on whistle-blowers, using the World War I-era Espionage Act to punish whistle-blowers who leaked to journalists more than all previous U.S. presidential administrations combined.

Former Bush-era CIA and NSA Director Michael Hayden even made comments that suggested he would like to put Snowden on the Kill List (although he claimed in his recent book that his remarks were misinterpreted).

Wilkerson feels the opposite way. “I credit Snowden for having a great deal of courage, because he’s ruined himself forever,” he told Salon.

Ackerman, Spencer - Pentagon maintains 'toxic' environment for whistleblowers, watchdog says - The Guardian 20160311

Ackerman, Spencer - Pentagon maintains 'toxic' environment for whistleblowers, watchdog says - The Guardian 20160311

Project on Government Oversight cites reports that show investigations take average of 526 days and more than 86% of alleged reprisal cases are dismissed.

The internal investigations branch of the Pentagon maintains a climate that is “toxic” to whistleblowers, according to a leading good-government watchdog.

The Project on Government Oversight (Pogo) this week sent a letter to the Pentagon inspector general, Glenn Fine, seeking urgent changes to an investigative office it says takes years to close cases, dismisses most reprisal allegations made by would-be whistleblowers and allows senior officials to skate on misconduct charges.

The office has taken on a high-profile inquiry into allegations of doctored intelligence about the US war against the Islamic State coming from analysts at US Central Command. The inquiry is being closely watched on Capitol Hill.

Edward Snowden, who made revelations about bulk surveillance in 2013, cited the dismissive and even hostile treatment of National Security Agency whistleblowers by official channels as a motivation.

Mandy Smithberger of Pogo, which was founded by Defense Department whistleblowers and deals with such individuals regularly, said it has grown hard to look at the Pentagon inspector general’s office “and not tell people, ‘You shouldn’t expect much out of this process.’”

Citing years of reports from the Government Accountability Office (GAO), the investigative wing of Congress, Pogo presented a litany of charges to Fine, a well-regarded former Justice Department inspector general.

Fine, who took over the office in January, told the Guardian in a statement Pogo’s information was “one-sided and dated, and it took various GAO findings out of context”.

According to Pogo, Pentagon investigations take an average of 526 days to close, despite a 180-day limit required by law.

“Apparent misconduct” is “widespread” in the inspector general’s case filing system, Pogo charged, with information relevant to the conclusion of its inquiries “changed after the fact”.

“We now believe that DoD IG’s administrative investigations leadership, management, and staff may have purposely altered records to mislead GAO investigators about the depth of these problems,” the letter stated.

Whistleblowers are statistically unlikely to have an ally in the office: Pogo said the Pentagon inspector general has dismissed more than 86% of cases concerning alleged reprisals against would-be whistleblowers since 2012.

“This rate of dismissal, which is more than double that of service [army, navy and air force] IGs for the same types of cases, creates the appearance that DoD IG is focused on closing, rather than investigating, the cases it receives,” Pogo wrote in the letter, which was dated 8 March.

Pogo also alleged that senior officials were more likely to be cleared by the office than their junior counterparts. Again citing the GAO, Pogo said the office in recent years substantiated five allegations against senior officials – after investigating 27 and closing 364 without investigation.

The military services’ inspectors investigated all 250 cases against senior officials they received, substantiating 90.

Fine defended his office, saying it had made “significant progress” in handling whistleblower-reprisal allegations and identifying the “effectiveness and timeliness of investigations” as an area of focus for improvement.

“However, I believe that the leadership of AI [administrative investigations] was unfairly attacked in Pogo’s letter, and that [chief Marguerite] Garrison and her senior officials are leading the component in the right direction.

“AI has the difficult job of conducting tough, fair, thorough and timely whistleblower reprisal investigations, and I believe that AI leadership and staff are working hard to handle those duties in a responsible way.”

Without faith in whistleblower protections, Pogo’s Smithberger said, Defense Department employees and contractors who witness waste, fraud, abuse and illegality face a choice of either silence or public disclosure.

Smithberger praised Fine’s work at the Justice Department and said he had a lot of work ahead of him in repairing a “broken office”.

Eisler, Barry - Memo To Authoritarians: The "Oath" is to the Constitution, Not to Secrecy - 20130611

Eisler, Barry - Memo To Authoritarians: The "Oath" is to the Constitution, Not to Secrecy - 20130611

It's been interesting to read pundits like David Brooks of the New York Times and Josh Marshall of Talking Points Memo prattling about how whistleblower Edward Snowden violated his "oath" of secrecy.  I was in the CIA, and I can tell you there was no secrecy "oath," just a contract.  The oath was to protect and defend the Constitution against all enemies, foreign and domestic.

I find the misnomer revealing.  I don't think Brooks, Marshall, and the many others like them are misusing the word "oath" in a deliberate attempt to mislead.  My guess instead is that their deference to government secrecy is so strong that they reflexively equate a contract to maintain secrecy -- a nondisclosure agreement, really -- with something as strong as, say, a sworn oath to preserve, protect and defend the Constitution.  You know,like one the president takes.

In fact, I'd go further.  That these pundits aren't even discussing the real oath CIA and other government employees take -- the one to protect and defend the Constitution against all enemies, foreign and domestic -- suggests they don't believe such oaths are important enough to bother mentioning.  Now, admittedly oaths to protect and defend the Constitution are all very pre-9/11, but shouldn't an intelligent and honest pundit at least offer a nod of the head toward the fact that someone like Edward Snowden might have felt faced with two competing obligations -- his secrecy contract, on the one hand, and his sworn oath to protect and defend the Constitution, on the other?
Of course, if deference to governmental secrecy prerogatives trumps all other values, then there's no trade-off even to mention.
And look, even if you think that "oath" and "contract" are interchangeable terms (in which case you'd have to explain why Brooks, Marshall et al consistently use the former regarding secrecy while eschewing the latter, and why the drafters of the Constitution did the same with regard to oaths of office), you still have to explain why various pundits are so intent on referring to only one of the "oaths" while ignoring the other.
Here's another way of looking at it.  Say you're the employee of an intelligence agency.  You've signed a contract to maintain secrecy and also sworn an oath to protect and defend the Constitution.  And you become aware of a secret program that you believe violates the Constitution you have sworn to protect and defend.  Reasonable people can argue about how you might best redress that violation, but reasonable people can't deny, whether explicitly or implicitly, that you are faced with a dilemma and that, if you have a conscience, you should and hopefully will grapple with how to resolve it.
Here's a terrific piece from Daniel Ellsberg, the previous generation's heroic whistleblower, on why in revealing the scale of the NSA's secret spying on millions of innocent Americans, Snowden has done America such a noble service.
Maybe you'll disagree.  That's fine; there are competing interests in all cases of whistle blowing, and reasonable people might balance those interests in different ways.  But arguing as though a contractual obligation to maintain secrecy trumps all other values, including actual sworn oaths to protect and defend the Constitution, just makes you look like an authoritarian.  As well as a fool.

Eisler, B - Freedom of the Press Foundation 20160229

Author Barry Eisler talks about whistleblowers and secrecy at the Association of Former Intelligence Officers - 20160229

Author and former CIA officer Barry Eisler spoke at the Association of Former Intelligence Officers opposite ex-CIA and NSA director Michael Hayden on Monday. Below is an adaptation of his opening remarks about the importance of whistleblowers and government transparency. Eisler's new novel, "God's Eye View," inspired by the Snowden revelations, is available now on Amazon.

Thank you, it’s a real honor for me to be invited to address this group today along with General Hayden. I worked at CIA for only three years, and that was almost 25 years ago, so I barely feel like an actual former intelligence officer. Not that this stops people who hear about the CIA background from asking me at book signings who killed JFK, and which assassinations and coups I was involved in, and what the aliens at Area 51 really look like.

Today I’d like to share a few thoughts, not just as a former intelligence officer—to the extent I qualify for such a title—but also as a former technology lawyer, former startup executive, and current full-time thriller writer. What I have in mind are some issues I deal with in my latest novel, The God’s Eye View, which involves the NSA, whistleblowing, and some political skullduggery, plus the usual compelling characters, exotic locations, and steamy sex I like to think my stories are known for. Specifically, what I want to talk about is intelligence and propaganda—two endeavors I think are diametrically opposed and that we should take great care to distinguish.

I’ll start by talking about whistleblowing, and in particular about Edward Snowden. I’m confident there’s a range of opinion in this room about the merits of what Snowden did. A divergence of opinion about acts so consequential isn’t just inevitable; in a democracy, it’s desirable. So I’m glad to know we won’t all see eye-to-eye on Snowden, and that we’re able to discuss him and his revelations in the spirit of honest debate.

But regardless of how our views might differ, there are a couple of items I think the media has distorted—distortions that make honest debate more difficult. And those distortions are part of what I’d like to talk to you about today.

You might have come across a phrase involving Snowden—in fact, this phrase isn’t easy to avoid if you favor establishment pundits like David Brooks and Fred Kaplan and Josh Marshall—to the effect that Snowden violated his “oath of secrecy.” Even former CIA director David Petraeus has claimed—awkwardly, in retrospect—there is such an oath. I wrote about this supposed oath in a bit more detail after the first Snowden stories broke, in a blog post called “Memo to Authoritarians.”

All of us in this room know there is no “oath of secrecy”—that the notion of such an “oath” is the product either of ignorance or propaganda. There is a secrecyagreement—what here in Silicon Valley we typically call a nondisclosure agreement, or NDA. But to inflate the status of such an agreement to the level of an “oath,” akin to, say, the president’s oath of office, is false and misleading.

And worse, the false and misleading notion of an “oath” of secrecy obscures the existence of an actual oath—the oath we in this room have all taken, and continue to adhere to: the oath to protect and defend the Constitution.

Edward Snowden signed a secrecy agreement. He also swore an oath to protect and defend the Constitution. You might not think he got the balance right—that, despite the subsequent rulings of several federal courts, the programs Snowden revealed were not in fact unconstitutional. Or that a secrecy agreement should always trump an oath to protect the Constitution. Or that Snowden went about protecting the Constitution in the wrong way. We should have those conversations. They’re important. But what we shouldn’t do is to suggest, implicitly or otherwise, that an obligation to protect secrecy exists in a vacuum. We shouldn’t pretend that the oath to protect and defend the Constitution is unimportant, or worse, that it doesn’t even exist. To do so would be to get the facts wrong. And as intelligence professionals, we know that if we get the facts wrong, the likelihood of accurate, useful, effective conclusions becomes pretty remote.

Now, at this point I wouldn’t be surprised if at least some people here are wondering, “Well, Barry, that’s fine, but what if everyone did what Snowden did? What if every top-secret cleared federal employee took it upon herself or himself to declassify whatever she or he deemed to be in the public interest?”

It’s in interesting question. But I think it’s a misleading one. Here’s why.

First, because the question is essentially a fantasy. Whistleblowers are in fact incredibly rare. The government has been so draconian in its application against whistleblowers of the 1917 Espionage Act that the demonstrated risks and costs of whistleblowing deter almost everyone. So the reality is that only people of the most exceptional conscience, courage, and conviction have ever become whistleblowers, and only a handful ever will. To try to frame the question as some version of, “Well, what if there were in fact innumerable whistleblowers?” is therefore akin to discussing angels dancing on pinheads—not an exercise in which intelligence professionals would ordinarily engage.

Interestingly, the tendency to focus on the fantasy of what might happen rather than on the reality of what is happening is not unique to discussions of whistleblowing. It is also prominent in discussions of torture, where torture proponents try to frame the issue around a hypothetical that has never happened and will never happen—the ticking time bomb, where the government has captured a terrorist we know has planted a bomb, who we know can disarm the bomb, and who we know will tell us under duress where the bomb is and how to disarm it. And this fantasy then obscures the reality of the actual costs of torture—erosion of our adherence to our own laws and values; wild goose chases; alienation of indigenous populations and a drying up of potential walk-in sources of intelligence; and a propaganda bonanza for our enemies.

So: what reality does the “What if everyone were a whistleblower” fantasy obscure? Three things:

First, the reality is that the government classifies far too much information, frequently in violation of applicable laws governing what information may and may not be classified. We knew this long before Edward Snowden; we know it even more now. A little secrecy is necessary to protect democracy. Too much secrecy begins to strangle it. So rather than focusing on the fantasy problem of what might happen if more secrets were revealed, shouldn’t we be focusing on the real problem of what is happening because too many secrets are being created? Why do we blame whistleblowers for revealing things we might believe should be secret, while giving the government a pass on classifying things thatshouldn’t be secret? Why would we want to obscure the many harms caused by over-classification, including demonstrably horrendous decision-making like the Bay of Pigs invasion, nonexistent missile gaps, and the Gulf of Tonkin basis for our war in Vietnam?

In this regard, I have to say I think it’s a shame our discussion today isn’t being recorded and made available to other citizens with an interest in how former intelligence officers view these issues. It’s a minor moment in the scheme of things, yes, but closed-door discussions like this one are in some ways a manifestation of the problem. We’re a democracy. Wherever possible, we should favor openness over secrecy.

Second, the reality is that if we really are worried about the unauthorized disclosure of secrets, we should be prosecuting the thousands of officials who incessantly leak secrets favorable to the government. Instead, secrecy is enforced selectively, with the government prosecuting the few leaks it doesn’t like while smiling benignly on the thousands it does. In this regard, a Martian might find it strange that the Espionage Act has been deployed, say, against former CIA employee John Kiriakou, and not against former CIA director David Petraeus, whose misdeeds regarding classified information were at least equally noteworthy. Or against former CIA employee Jeffrey Sterling, but not againstHillary Clinton, who stored classified information on an unsecured personal email server. Or against any of the numerous government officials who leak supportive details about America’s drone assassination program, even as theCIA resists in court Freedom of Information Act demands about the most basic aspects of when, where, how, and whom the US government believes it can kill with drones. There are countless other examples of this apparent double standard, and our Martian might conclude that the only difference between the people prosecuted for leaking secrets and the ones who aren’t is that the latter class is more powerful, or leaks in a fashion the government likes. It would be hard to argue that the reality of such a one-sided and hypocritical enforcement of secrecy rules—or of any law—could be healthy for a democracy.

Third, the reality is that corruption and criminality flourish in secret, and that government corruption and criminality does far more damage to national security than any whistleblower ever could. One of the things we learned from Snowden’s revelations is that Director of National Intelligence James Clapper was lying in his Senate testimony about whether the NSA collects data on millions or hundreds of millions of Americans. Even Clapper himself subsequently acknowledged that his testimony was “untruthful.” When a whistleblower reveals that the head of American intelligence is lying in his testimony to a Senate oversight committee—a federal crime akin to perjury—I think as citizens we ought to focus more on how national security is being damaged by the lying than on how it might be damaged by the whistleblowing that exposes those lies.

But instead, in response to every whistleblower revelation ever, the government’s scripted response is to claim “grave” or “irreversible” damage to our national security, or “blood on the hands” of the whistleblower and the media that then reports on the whistleblowing, only to have those claims subsequently revealed to be alarmism at best. Just a few examples:

The rightness of Daniel Ellsberg’s whistleblowing regarding the Pentagon Papers has been vindicated by history, and today everyone understands that what was harming US national security was a war built on lies, not the whistleblower who exposed those lies.

Despite her role in catalyzing the Arab Spring, in exposing various government lies about civilian casualties in Iraq, and in otherwise educating the public about the actual policies being pursued in our name, Chelsea Manning faced the usual “blood on her hands” accusation for the Wikileaks Cablegate revelations—after which even former CIA director and former Secretary of Defense Robert Gates acknowledged that Manning’s actions caused no substantive damage.

After sharing unclassified information with a reporter about waste involving Trailblazer—an NSA program that was cancelled after the NSA Inspector General judged it an expensive failure—Thomas Drake was prosecuted under the Espionage Act. Eventually, the government dropped all charges, and Drake pled to a misdemeanor of unauthorized use of a computer. Once again, the harm lay in the corruption the whistleblower revealed, not in the whistleblowing that revealed it.

Given all this, our hypothetical Martian might wonder if the seemingly obligatory government “blood on his hands” scaremongering might be intended to distract from the governmental wrongdoing whistleblowers reveal. Were Martians possessed of a sense of irony, ours might also wonder at the spectacle of a government that kills hundreds of thousands of innocents in the course of endless wars suggesting that the real blood-on-their-hands culprits are the people blowing the whistle, and not the politicians forever blowing the war trumpets.

So to distort facts, to overlook inconvenient facts, and to focus on fantasy hypotheticals while ignoring actual costs are dangerous habits for intelligence professionals. Indeed, I would argue that these habits are a form of propaganda, which we should understand to be abhorrent in part because propaganda is the opposite of intelligence.

In this regard, I want to discuss one a related tendency I think intelligence professionals should be on guard against: the recruitment of language in service of political ends. You don’t have to have read George Orwell’s Politics and the English Language to know there are always euphemisms available to us by which we can obscure the true nature of our actions. But the purpose of language for intelligence professionals is not to describe the world as we wish it, but rather insofar as possible to describe the world as it is.

There are so many suspect phrases worth a second look in this regard—enhanced interrogation techniques vs torture; detainees vs prisoners; targeted killing vs assassination; interventions vs wars; regimes vs governments; tribes vs factions; data collection vs surveillance; collateral damage vs innocent human beings burnt to death and blown into little pieces; the notion that terrorists somehow magically “self-radicalize” rather than being radicalized by our policies of assassinations, bombings, invasions, and occupations, as a Rumsfeld-era Pentagon study unsurprisingly found…you could write a book on this topic, and probably someone should (at least in the meantime we have an interim list of NSA-speak compiled by two ACLU lawyers). But we don’t have time for that today, so for the moment I’d like to focus on just a few descriptive phrases I find troublingly misleading and that I think are worth reconsideration.

The first is former NSA director Keith Alexander’s famous notion that “You need the haystack to find the needle.” This phrase has been picked up and propagated by legislators, lawyers, and journalists, and has undoubtedly shaped the public’s understanding of the nature of bulk surveillance (or, as the NSA might call it, “data collection”). And it’s an appealing notion at first glance, isn’t it? There’s a farm, or maybe a barn, with a bunch of hay scattered around, and General Alexander just wants to sweep up the hay into a neat pile and find the needle in it. Nothing menacing about that, is there? In fact, removing that nasty steel needle from all that soft, organic hay might even prevent someone from getting stabbed in the buttocks.

But think about it. “Needle in a haystack” is just a phrase intended to denote an item hard to find against a given background. There is no organic connection at all between needles and hay, so saying, “To find the needle, we have to collect all the hay” makes about as much sense as saying, “To find the needle, we need to collect all the bicycles.” After all, there’s about as much chance of a needle being in a haystack as there is of a needle being in a collection of bicycles. So either Keith Alexander is suggesting we need to collect a dataset that has nothing to do with the data we’re actually looking for—or he’s instead suggesting that we what we really need is to collect everything. But because the American people might find objectionable the notion of the government collecting everything about our electronic communications, online behavior, and physical movements, it’s easier to frame the program as something limited, something out of an Andrew Wyeth painting, rather than as something out of, say, Nineteen Eighty-Four.


Secret slide (troubling)
Public painting (reassuring)One other such phrase I’d like to comment on is the title of the book we’re all looking forward to hearing former director Hayden discuss with us today:Playing to the Edge. This is of course a reference to General Hayden’s notion that he will always play the game of intelligence within the rules—but so aggressively, so “close to the line,” that he will get “chalk dust on my cleats.”

As a student of what makes an effective book title, I want to start by saying that I think Playing to the Edge is a killer title, and my reservations about the notion of playing to the edge, and chalk dust on my cleats, has nothing to do with any shortcomings in terms of selling the book.

Instead, my concern is that I think the imagery, while powerful, is misleading. Because in a game of football, which is what the imagery seems most closely tied to, or in any game played on a field with lines, there are two critical components: spectators, and a referee.

That is to say, a game on a field is being watched by an audience and monitored by a judge. But in the game General Hayden was playing while head of the NSA and then head of the CIA, these two critical components did not and do not exist. Until Edward Snowden revealed it, the bulk surveillance game was played in secret. Not only was the American public not permitted to watch from the bleachers or on television, the American public was not even permitted to know of the game’s existence.

As for a referee, the closest approximation in the American intelligence game would be the entity commonly known as the FISA court. But the FISA “court” itself meets in secret, issues rulings that are kept secret, and permits no adversarial process at all. And if you think a term like “rubber stamp” is too harsh for a body that has denied only eleven out of something like 33,400 government surveillance requests—an approval rate of 99.97%—then another way to understand the FISA body’s function is as something more akin to the Justice Department’s Office of Legal Counsel, or some other executive administrative office. In fact, I would argue that the term “FISA court” itself is propagandistic, intended to suggest to the public that intelligence programs have been blessed by the judiciary—that is, that they are being refereed, and that the referee will impose penalties for rules violations—when the truth is, this is not at all the case.

In fact, if you think about it, an executive intelligence agency getting a blessing from another arm of the executive is not so different from say, a novelist setting up a review page to praise his own novels. There’s a word for this in the book business, by the way—it’s known as sock puppetry, and is widely and rightly frowned upon. But the game General Hayden was playing is vastly more important, with vastly greater consequences, than the game played by novelists. The intelligence game as played in a democracy requires an audience and a referee if we’re to ensure that We, the People are satisfied it is being played as we want it to be played—indeed, if the people are going to have any say in the game at all—and I’m concerned that General Hayden’s vivid imagery might suggest to people who don’t know better that the game he refers to has an audience and is adjudicated by a referee when in fact it has neither.

There are so many related examples of propaganda creeping into intelligence I think are worth discussing: the notion that Dianne Feinstein was being unacceptably emotional when she reacted to Americans torturing prisoners (or, as it’s more commonly known, “conducting EITs on detainees”)—while we view the wars we launched in Afghanistan and Iraq immediately following 9/11 the products only of pure logic, reason, and dispassion; that former CIA director James Woolsey, in calling for Snowden to be “hanged by the neck until he’s dead, rather than merely electrocuted” is perhaps himself just slightly in the grip of ungovernable and undesirable emotions; that a failure to deploy killer sky robots or otherwise go to war is identical to “inaction,” as General Hayden suggested in a recent New York Times op-ed; that the mission patches released by organizations like the National Reconnaissance Office, depicting creatures like demons, raptors, the Grim Reaper, and a giant, angry octopus strangling, eating, and/or assaulting the earth, are perhaps telling us something we ought to heed about the collective id of what we refer to in our friendly, benevolent way as the “intelligence community.”

But I want to make sure there’s time for Q&A because I imagine not everyone here will see these issues in quite the same way I do. Which, again, in a democracy is something I see as both inevitable and desirable. So thank you for listening and for considering my thoughts, and I’ll look forward to hearing yours now, too.

Anonymous releases a set of proposal to United Nations for protection of whistleblowers - TechWorm 20160209

Anonymous releases a set of proposal to United Nations for protection of whistleblowers - TechWorm 20160209

Anonymous releases a set of proposal to United Nations for protection of whistleblowers

Whistleblowers are a pain in the the neck for governments around the world. If it were in the hands of the governments, they would have shot such whistleblowers at the very moment they are identified. Edward Snowden survived such vindication because of massive support from people around the world however not all are as lucky as Snowden. Therefore the online hacktivist group, Anonymous has come out with a set of proposal for United Nations to formulate a policy for whistleblowers.

Anonymous has pledged to uphold the freedom of Internet and it includes protection of journalists, rights activists and whistleblowers. The Anonymous proposal for United Nations, available here, offers has 5 sections.

Information Protection

Anonymous has proposed that United Nations open a sovereign data server which will be out of bound for all countries. They say that such a server can protect the information leaked by whistleblowers. They propose that the server should have a military grade encryption and provide anonymity to the whistleblower.

Compensation

Most of the times, whistleblowers risk their everything in trying to protect what they deem to be right. As in case of Snowden, sometimes they have to even leave their country of birth and work to protect themselves from hostile governments/authorities. Anonymous proposes that United Nations should compensate such whistleblowers with some income to take care of their housing, food, clothing and medical care.

Legal Protection

In most of the cases, when a whistleblower leaks information, he/she automatically becomes a enemy of the state. In most cases, the whistleblowers are not even provided with basic legal help. Anonymous proposal states that United Nations provide such whistleblowers with all legal help they need to protect themselves from hostile authorities.

Censorship

Most of the times, information leaked by a whistleblower is censored through media coercion or take-down requests in case of online publication. Anonymous proposes that United Nations appoint a team of experts to verify such information and publish it along with their analysis on a fully protected website.

Enforcement

Most of laws enacted by United Nations go to dustbin for lack of enforcement. Therefore Anonymous propose that United Nations strictly enforce the whistleblower protection law.  To enforce it, United Nations can exclude such countries who dont protect their whistleblowers from important schemes. Anonymous proposes that the UN can even impose financial sanctions against the such countries.