Last week, Secretary of State John Kerry made remarks that once again underscored the U.S. government’s hypocrisy on whistleblowers and transparency. In a televised response to Edward Snowden’s first interview with a major television station, Kerry said: “Let him come back and make his case. The fact is that he should, if he cares so much about America and he believes in America, he should trust in the American system of justice… this is a man who has done great damage to his country, violated his oath which he took when he became an employee”.
Snowden’s first oath was to uphold the Constitution; it seems unlikely that he also swore to uphold secret legal theories that directly contradict the Constitution. It also seems implausible that revealing our government’s systematic and egregious violation of our Constitution could possibly do more damage to the country than benefit. Perhaps most improbable is a fair trial. Snowden has been charged under the Espionage Act, which includes no clause for whistleblowers, and no consideration of the public benefit. Snowden would doubtless serve a prison sentence. Kerry knows this. In a separate interview, he spoke more plainly: “Edward Snowden is a coward, he is a traitor, and he has betrayed his country, and if he wants to come home tomorrow to face the music, he can do so”. Snowden’s battle is simply the latest, and probably the most open, in the U.S. government’s ongoing war on whistleblowers.
This post-9/11 war on whistleblowers started with the Bush administration. President Bush prized loyalty, and despised those he perceived as breaking faith with his administration. He was responsible for introducing the government’s merciless and unlawful practice of persecuting whistleblowers using law enforcement agencies.
In September of 2002, three NSA officials and a staffer on the House Intelligence Committee filed a complaint with the Department of Defense Inspector General criticizing the NSA for major privacy violations, waste and fraud. One of their foremost concerns was the Trailblazer project, a large and expensive mass surveillance system that they reported was clearly destined for a spectacular failure. Their report was ignored and, despite a law indicating that such complaints were confidential, it became common knowledge. The NSA ostracized them, prompting them to resign their positions. They proved to be spectacularly correct about Trailblazer - the NSA scrapped the project after wasting an incredible $1.2 billion. Yet that vindication didn’t prevent the administration from retaliating against them. In 2007, five years after filing their report, the FBI staged simultaneous armed raids of their homes. One of the whistleblowers was naked in his shower when he was dragged out into his bedroom. They were all held at gunpoint and interrogated. One said, “I feel I’m living in the very country I worked for years to defeat: the Soviet Union. We’re turning into a police state”. All agreed that this was the administration’s retribution for the fact that they had filed a complaint against the NSA and its unlawful activities five years before.
Thomas Tamm was a Department of Justice attorney. In 2005, he became the first to leak information about the NSA’s warrantless wiretapping efforts. Although he did not break the law, the government made his life a nightmare.
The FBI has pursued him relentlessly for the past two and a half years. Agents have raided his house, hauled away personal possessions and grilled his wife, a teenage daughter and a grown son. More recently, they've been questioning Tamm's friends and associates about nearly every aspect of his life. Tamm has resisted pressure to plead to a felony for divulging classified information. But he is living under a pall, never sure if or when federal agents might arrest him.
In November of 2007, the FBI conducted yet another armed raid, this time on the home of an active NSA official, Thomas Drake. He had been an unnamed contributor to the NSA Trailblazer complaint from 2002 and, in 2006, had shared non-classified information about NSA abuses with a Baltimore Sun reporter. In April of 2010 – two and a half years after the FBI broke into his home – Drake was finally indicted on ten counts, including alleged violation of the Espionage Act. On the eve of the trial the government dropped all charges against him in exchange for community service, a standard tactic in prosecutions designed to do nothing more than intimidate the defendant.
In the Drake case, the government had openly declared its intention to make an example of Drake to deter other leakers. The judge had harsh words for this: “[Drake has] suffered grave financial damage, the loss of the job, the loss of the pension, the attorney's fees, having to live with the fact that he may not be able to send his son to college, the damage that he did to all the people around him. He and his family have suffered great physical and emotional stress for years. There has been a serious amount of punishment inflicted.”
Regarding Drake’s nearly three years of nail-biting waiting for an indictment, the judge said, “I don't think that deterrence should include an American citizen waiting two and a half years after their home is searched to find out if they're going to be indicted or not. I find that unconscionable. Unconscionable. ...the American public deserves better than this”. Blacklisted from federal employment, Drake took a job at a computer store to pay off the cost of his legal defense.
Obama promised to be different from Bush. One plank in his campaign for the presidency was “Protect Whistleblowers”:
Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government.
This policy was obviously a welcome change from the Bush administration’s. Except there was no change. In fact, Obama’s promise to encourage and defend whistleblowers has proven so outrageously false that it has since been purged from his website. Now, the text can only be found in third-party historical archives.
Despite Obama’s 2007 promises, his administration persecutes whistleblowers with the same merciless enthusiasm as the Bush administration. To date, his administration has charged more Americans with “espionage” than all other previous administrations combined, a charge that can entail the death penalty. All were whistleblowers.
Stephen Kim was charged under the Espionage Act in 2010, Jeffrey Sterling in 2010, and John Kiriakou in 2012. None of these charges have been successful, which reveals their spurious nature. Countless other whistleblowers have been targeted using alternative means:
- Diane S. Roark (Republican House staffer)
- William Binney (NSA cryptographer)
- J. Kirk Wiebe (NSA official)
- Ed Loomis (NSA official)
- Barrett Brown (reporter)
- Jeremy Hammond (web developer)
- Aaron Schwartz (transparency activist)
- Jin-Woo Kim (State Department adviser)
- James Hitselberger (Navy linguist)
- John Kiriakou (CIA agent)
- Jeffrey Sterling (CIA agent)
It is clear Obama’s administration pursues the same sort of politically-motivated reprisals that Bush’s did. Despite this, the Obama administration still has the nerve to claim it is “the most transparent administration in history”.
In May of 2010, Army Private Bradley Manning was arrested on 22 charges, including “aiding the enemy,” in relation to a large batch of classified documents he sent to a news organization. These documents included videos of American war crimes against civilians in Iraq, and revealed the military’s systematic obfuscation of those crimes, and others. After Manning was arrested, he was held without trial for nearly 3 years. He was periodically tortured: kept in solitary confinement, forced to stay awake, shackled during visits with his attorney, and even forced to strip naked for inspection. He was finally granted a trial in February, 2013. Following the law, the court was effectively barred from considering the public benefit of his leaks. In July he was convicted on 21 charges.
In June of 2013, the Department of Justice indicted Edward Snowden on various charges, including multiple violations of the Espionage Act. The Obama administration revoked his passport, effectively trapping him in the transit area in the Moscow airport. Unable to leave Russia, Snowden was forced to apply for asylum in Russia as a political refugee. “[W]hen asked a question by the [Russian Federal Migration Service] agent why he chose to file a petition in Russia and why he came here, he replied that he fears for his life and wellbeing, that he is also afraid of torture, and that he could get executed. And what he says sounds quite convincing, because the US still administers capital punishment and torture”. The implication was that Snowden would face the same torture and threat of the death penalty that Bradley Manning endured. These concerns were legitimate enough that the Department of Justice responded to them directly.
In July of 2013, it was revealed that Attorney General Eric Holder had written a letter to the Russian Minister of Justice objecting to Snowden’s asylum request. In this letter, he was forced to explain how Snowden’s case would be handled, and that Snowden would not be tortured. In short, Holder was forced to promise that the United States government would follow its own laws, as it had failed to do with Manning and other whistleblowers before and since. It is not known whether the Minister responded. Russia granted Snowden asylum soon after.
It is not a proud moment for the American nation when a statist, authoritarian regime can so easily make the United States look morally bankrupt. It would not have been easy if it hadn’t been true. The United States government has indeed become morally bankrupt on the issue of whistleblowers, and for the most despicable of reasons: politics. It is clear that our government is not seeking justice against enemies of our nation, but rather its own enemies – those who leak its damning secrets and threaten harm to the current political regime. The past two administrations have deliberately devastated the lives of good Americans who have simply had the nerve to do the right thing. This pattern has become the perception – the United States government does not tolerate whistleblowers.
Obama’s had it right in 2007: “Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out.” If our government won’t protect whistleblowers, then it clearly isn’t acting in the interests of our nation. Its ongoing campaign to create a chilling effect on dissent must be stopped. We need to make it clear to our government that transparency is not a topic for occasional lip service, but a fundamental prerequisite to political power in our nation. Whistleblowers are one of our most effective mechanisms for ensuring governmental transparency. They should be encouraged, and those who threaten to stifle them in any way should be dealt with on the harshest terms.
Next time you hear “whistleblower,” you are hearing a call for help from a patriot. Good Americans will heed that call.
UPDATE (2014-06-17): The Washington Post reports that employees at the scandalized Department of Veteran's Affairs have suffered retaliation for whistleblowing activity, some of which was related to the long waits for healthcare that resulted in dozens of deaths. Among all federal employees, 35% report being either threatened with, or actually suffering, reprisals after whistleblowing: The data on federal whistleblowing and its consequences.