Speech before the America's Survival, Inc. news conference at the National Press Club, November 17, 2014.
Thank you Cliff for that introduction. It is a pleasure being here with you today. Even though our political views differ significantly, I would like to point out that—as I got to know him in the aftermath of 9/11—Cliff Kincaid has worked hard to promote the rights of real whistleblowers, modern Paul Reveres, in government and out.
I will limit my comments to the question of the whos and whys of real whistleblowing and why leaker Edward Snowden does not make the grade. Given the earlier comment, I should point out that in my own case it was the FBI that came to my aid; for me, the Bureau is like extended family and had it not been for an agent who went on to teach ethics in Quantico, things could have turned out quite different.
It is important to remember in this world’s oldest democracy, one that has the American eagle as its national symbol, that you can be left-wing, right-wing or middle of the bird, but lawful protest is a constitutional right.
And as John F. Kennedy once said:
Let every public servant know, whether his post is high or low, that a man's rank and reputation … will be determined by the size of the job he does, and not by the size of his staff, his office or his budget.
Let it be clear that this Administration recognizes the value of dissent and daring--that we greet healthy controversy as the hallmark of healthy change.
Unfortunately, one of the most damning criticisms that can be made in discussions among too-often ahistorical Americans is that someone is a “conspiracy theorist”—the challenge referring to someone who presses hard on the paranoia pedal without regard for facts.
The case of national security leaker Snowden puts that putdown on its head ...
It is the “coincidence theorists” who need to come clean about why they have chosen to promote someone now enveloped in the protective embraces of the olympic Russian police-state champion Vladimir Putin.
For many of those used to fighting the good fight from the trenches of good government and public accountability, the strange case of former National Security Agency contractor Snowden causes particular dread.
As the cases of Ukraine, Chechnya and Georgia show, former KGB officer Putin is a master at deception and propaganda; witness his very public embrace of Snowden, who stole classified documents far in excess of those he supposedly took to make his argument against the NSA, and then fled U.S. legal reach.
Even a fierce critic of U.S. foreign policy like actor Sean Penn, who himself defends whistleblower rights, was obliged to note that Snowden was not “legitimate,” his acts “based on the narcissism of the so-called ‘whistleblower’.” (Italics added.)
Thus, like a bad dream with no end, a leaker arguably more akin to Edward Everett Hale’s “The Man Without a Country” is being promoted around the globe by many who should know better as a brave and selfless “whistleblower.”
At stake: the very concept of whistleblowing and whatever chance there is to achieve bipartisan Congressional support for protecting real government truth tellers (modern Paul Reveres), today and in the future.
With Snowden and Company trying to centrally cast him as a 21st Century “hero,” the foot soldiers of left, right and center find themselves facing hard choices that willlikely mean more pain and hardship for myriad already-overburdened true believersin a government of the people and for the people.
Ironically, aligned in favor of a soft landing for Snowden—someone who clearly decided to commit felonies before he got his last government contractor assignment—are some of the media giants with a record of being most in favor of lawful government openness and accountability; in other words, the very values we hold in common.
Arm in arm and in lock step with The New York Times, the Guardian, the Pulitzer Prize committee and a host of other media are, unfortunately, some important defenders of often-praised but rarely practiced protection for those in government committed to speak truth to power—whistleblowers.
Yet the arguments used in defense of Snowden dangerously parallel those that too many corrupt or narcissistic government bureaucrats—protective of their personal interests and policy preferences rather than those of the voting public—like to trot out in order to stave off real accountability.
The New York Times editorial judgment itself revealed a key dilemma when it said that, “Considering the value of his leaks and the N.S.A. abuses he has exposed, Mr. Snowden should be offered clemency or a plea bargain.”
And what happens if the next Snowden acts to promote ideas or values the Timessomehow finds unpalatable or repugnant?
Applied more generally, the message seems to be that individuals in a bureaucracy should, from here on, be permitted to engage in criminality if they themselves disagreed with state policy, especially those meaures that are highly unpopular or controversial.
The slippery slope emerges when—following a pardon of Snowden—hundreds of thousands of government workers of many different opinions, values and experiences left, right and center, begin to believe that any government policy about which they have significant disagreement can justifiably be thwarted by felony conduct.
Snowden appears to have no problem portraying himself as judge, jury and bureaucratic executioner—all in a single person.
"I am not trying to bring down the NSA, I am working to improve the NSA," he claimed, as supposed “good government” groups promoted his receiving a Nobel Peace Prize. "I am still working for the NSA right now. They are the only ones who don't realize it."
In fact, embracing Snowden is the good-government-activist equivalent of tainted Kool Aid, or making Stalin an ally—for those who to do so, watch your backs very carefully once the leaker claims to have "won."
Create a system of the promotion of individual lawlessness based on personal ideology while working in the large and complicated bureaucracy and you may very well see both our government and the way of life it is supposed to defend suffer accelerated dry rot.
Some in the good government sphere defending Snowden have rushed to red-hot judgment on how, for example (in the words of a real but kool-aid entranced whistleblower): "Everyone with a security clearance who has access to sensitive information is part of the conspiracy, even if they haven't personally observed wrongdoing, because they have been captured by the secrecy regime.”
Basic fact checking on Snowden's activities shows that they have gone far beyond whatever exposure he gave to alleged official illegality (remember, accused bureaucrats also have the right to trial, and an assumption of innocence until proven guilty as well).
Taking advantage of a security clearance whose rules Snowden he took an oath to respect and using a set of talents which permitted him to rob some 1.7 million classified documents, this virtual viet cong knowingly grabbed bushels of top secret information that—rather than proving violations of citizen rights and federal law—included vital knowledge of legitimate, legal NSA operations meant to protect this country and its people.
Well-regarded national security whistleblower lawyer Mark Zaid has offered insightful analysis about what all of this means, zeroing in on those …
who unequivocally and without hesitation, fully support, without making any factual or legal distinction whatsoever, the illegal conduct of individuals such as … Snowden.
Some, but not all of course, of those involved on this side argue nothing more than policy rhetoric rather than the actual state of the law.
And rather than use the opportunity to highlight inadequacies in the system ANDpropose and pursue reform, some merely jump on the bandwagon to make a hero out of unlawful conduct that lawyers, especially whistleblowing lawyers, should be quite wary of promoting.
Clearly our federal system, like many state and local governments, is in vital need of reform to protect truth tellers, particularly national security whistleblowers. Perhaps it is the British whistleblower group, Public Concern at Work, that bests articulates the importance of truth tellers in a free and open society.
Whistleblowing, Public Concern at Work says, “is a valuable activity which can positively influence all of our lives.” It then goes on to offer another critical observation: “The whistleblower rarely has a personal interest in the outcome of any investigation into their concern—they are simply trying to alert others.
Snowden’s personal interest is all but self-evident. He did not want to face the music for his actions—even while posing as a champion of civil disobedience in the tradition of Dr. Martin Luther King, Jr., Cesar Chavez and Daniel Ellsberg.
Instead Snowden sought refuge in the olympically-authoritarian Russia, offered other nations even more NSA secrets if they too would help him, and then went on to claim the United States owed him a huge debt of gratitude for wantonly violating its laws.
Only the willingly blind can see this as anything other than theft, not civil disobedience. Even someone like Fareed Zakaria, a self-declared sympathizer of Snowden’s, admitted in a Washington Post column that none, repeat none, of the leaker’s “substantive revelations” resulted in uncovering anything done by the NSA that was “morally scandalous.”
And anyway, as far as the rule of law is concerned, you don’t end cannibalism by eating alleged cannibals.
* * * *
As Americans were going to the polls earlier this month, the U.S. Supreme Court was not only making history by hearing the first case involving a federal whistleblower; its ultimate judgment will without doubt be closely followed by Putin’s Kremlin, its prized asylum-seeker Snowden, and camp followers such as Glenn Greenwald and Laura Poitras.
In hearing oral arguments involving Robert MacLean’s disclosure of post-9/11 cracks in U.S. air passenger security, the high court was asked to consider what was already seemingly decided by a unanimous federal appeals court ruling.
That court found, as did the U.S. Office of Special Counsel (the agency that was so helpful in my own case) in favor of the former air marshal, who was retaliated against by nervous bosses who accused him of making a disclosure “specifically prohibited by law.”
Nonetheless the government maintains that MacLean’s 2003 unclassified leaks to the media about illegal action at the Transportation Security Administration (TSA) were themselves prohibited—due to imagined catastrophic consequences.
This despite the fact that MacLean, who like myself has been defended by the Government Accountability Project, has garnered impressive bi-partisan support in Congress from conservatives and liberals, Democrats as well as Republicans.
Putin, Snowden and others whose actions continue to threaten U.S. national security are likely rubbing their hands in delight, given the possibilities left wide open by the government's position.
Unlike Snowden, who leaked massive amounts of national security information, then fled to Russia—a police state where, the State Department reports, real whistleblowers and investigative journalists alike are under continuous threat—MacLean stayed here and, despite an arduous legal process that left him nearly broke, went on to win in a court of law.
Those who know the former armed plain-clothes TSA officer who guarded commercial airplanes argue persuasively that MacLean’s efforts were meant to help prevent terrorist attacks.
What MacLean did caused the TSA to rollback a planned cut, supposedly for budget reasons, in overnight missions—a cutback due to occur in the wake of air marshals having been just briefed on a “potential plot” to hijack U.S. planes.
(The whole argument of cutting back on national security for budget reasons was questionable on its face. Even as MacLean was being reprised against, myself andTim Starks, another reporter at Congressional Quarterly, broke the story that the TSA was hosting an employee “celebration”—or party—that cost more than $200,000. It was that story that caused the legendary DHS Inspector General Clark Ervin, a George W. Bush political appointee, to start an investigation.)
MacLean’s disclosures were factual and they shed light on a TSA action that itself was arguably a violation of federal law—it is supposed to give protective priority to "nonstop, long-distance flights" which are high security risks. That his disclosures "evidenced a substantial and specific danger to public health or safety" there can be no doubt.
In a strictly forthright world, one might think that Putin, Snowden and their crypto-insurgent fellow travelers in the press would be hoping that MacLean would win his case in the highest court of the land.
Snowden has wrapped himself in a “freedom of expression” banner, and nothing in his case against the NSA has motivated greater, if factually flatulent, public debate than that. As the world continues to speculate on the extent of the intelligence bonanza enjoyed by the former KGB maven, what is clear has been Putin’s savvy use of the Snowden affaire to ridicule the United States.
Only the willingly blind can see this as anything other than criminal theft, not civil disobedience. As far as the rule of law is concerned, you don’t end cannibalism by eating alleged cannibals.
MacLean’s service as a real whistleblower placed him and his family at substantial risk as he stayed here and fought to have his rights recognized in a court of law.
Hence, the rub.
Prominent Snowden fans embrace—some as if on cue—the much-different MacLean and his cause while the Supreme Court begins to meditate its final resolution. Their solidarity, however, should be suspect.
The raison d'etre for being a whistleblower—telling truth to power in the public interest—already ratified by a federal appeals court in the case of MacLean, obviously was not there in what Snowden did, despite the vociferous arguments of the anti-U.S. crowd.
Wonton lawlessness on behalf of one’s political ideas, or “world view,” does not ethical dissent make.
A high court decision that permanently martyrs a real whistleblower like MacLean offers Putin and Co. the kind of propaganda ammo they most desire but could not buy—the ability to point to a documented case of official illegality without the possibility of legal recourse in the world’s oldest democracy.
This as Putin, Snowden and others seek to press their case for their own morally scandalous behavior.
* * * *
The July 30, 1778 Resolution of the Continental Congress states unequivocably …
That it is the duty of all persons in the service of the United States, as well as all the other inhabitants thereof, to give the earliest information to Congress or other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.
National security whistleblowers—those working outside the Beltway and without the same access to Congress, the media, expert legal counsel, and the opportunity for face-to-face meetings with the Office of Special Counsel that I had and Bobby MacLean has—need to have appropriate legal protections in place in order to survive.
While I am personally no more important than I was at the beginning of my own whistleblower process, I think my experience and that of Robert MacLean offer case studies of what real whistleblowing—as opposed to Snowden’s leaking—does, in the words of the Continental Congress …
to give the earliest information to Congress or other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.
The analysis of Russia in the U.S. Department of State Country Reports on Human
Rights Practices for 2013 is clear: “There is no legal procedure in place to
protect whistleblowers who report corruption committed by other public
officials. When whistleblowers complained about official corruption, the
official who was the subject of the complaint was sometimes asked to
investigate, which often led to retaliation against the whistleblower,
generally in the form of criminal prosecution.”
**Martin Edwin Andersen - Writer, Strategic Communications Manager, Senior Policy & Program Analyst