I know you’re out there, and this is for you. What you’re weighing, it’s not as easy as you think. But it can matter more than anything else you do with your professional life.
Washington is awash with leaks; if they were real water we’d all drown. The American people feel they are seeing the inner most workings of government, and it is not pretty. Powerful people are falling. Our democracy may be at risk. President Trump and his team have no intention of watching from the sidelines. There is a struggle going on, and people are taking sides.
So if you’re a government employee sitting in a cubicle in Washington DC, what are you thinking? To leak or not to leak? Will you blow the whistle?
I know more than a little bit about your decision. With 21 years of service at the Department of State, I was assigned to wartime Iraq in 2009. For me, when the waste, fraud, and mismanagement of the reconstruction program under Presidents Bush and Obama reached the limits of what in good conscience I could participate in, and after failing to see any change going through channels, I blew the whistle, via a book, We Meant Well. The State Department in response flirted with sending me to jail, tried to fire me in part for “lack of candor” in refusing to participate in their investigation, and in the end pursued me into an early retirement.
I learned the decision to contact a reporter, or otherwise to blow the whistle, is a hard one. In the end you have to ask yourself one seemingly simple but actually complex question: is the juice worth the squeeze?
As for that squeeze, an anonymous leaker must expect people to come looking; you’re taking on the President of the United States after all. If the past (including my case) is any guide, much of the action that follows a disclosure will be aimed at the leaker, not the information leaked. You will be scared going in, but the fear should make you cautious. You will need to learn what intelligence officers call tradecraft; you may end up trying to hide your actions from them. Whatever journey you embark on, fear will travel with you.
There are real things to be afraid of. Following the example set by the Obama administration, someone exposing classified information may be subjected by the Trump administration to Espionage Act prosecution, with the near-certainty of Federal prison time if convicted.
Think you’re too unimportant for an investigation? Safe because your leak was, as in my own instance, nothing remotely classified? Maybe. But the most effective way to silence the next person in your position is to have them afraid to even try. Your now-adversaries would love to get the high level leakers, but won’t care too much if the heads on display come from the lower ranks instead. Either way the point to those others out there still considering leaking is made.
The administration will fight back in other ways, too. You are an anonymous source, an unnamed official, someone “with knowledge of the discussion.” It’s your word against that of a person who can appear on a major news program to offer up information (real or not) that discredits yours. Americans tend to assess truthfulness these days in line with preconceived beliefs, and that’s running about 50-50 on any given day in the Trump Era.
That’s the squeeze for a leaker. Now the juice.
You may not have the evidence of a still-smoking gun to “bring down” anyone. But you can contribute to a larger story, supply a missing puzzle piece, or nudge an investigative process forward. A big mosaic is made of little pictures. What you know likely does matter, and the people have a right to know what matters about their government. Who besides someone on the inside – you – can tell them?
Things can change significantly if you decide to blow the whistle, as opposed to leaking. While there are legal definitions, the key difference is a whistleblower purposely gives up their anonymity; Edward Snowden is the best known example. The risks scale up geometrically after that – you are saying “here I am, come after me.” Legal protections exist, including the Whistleblower Protection Act, but they do not snap into place easily. You will need a good lawyer well before you blow any whistle.
The returns for blowing the whistle can be significant, and it was this calculus (plus a dollop of ignorance I’m afraid) that lead me away from leaking into a full public disclosure. Standing up by name, you earn credibility against attacks ad hominen, and for the information you supply. Your presence encourages and empowers others. Your motivations are on display; you are more easily seen as a patriot than a partisan. And you aren’t just passing on information. You are bearing witness, at risk to yourself.
As one who has been there, my counsel is to think practically, not emotionally. Think larger than yourself, and think larger than political gossip. If I had the chance, I would remind every potential leaker or whistleblower their oath of service was to the Constitution, not to any particular leader or party, neither the one in, nor out, of power. So act on principle, not ego or revenge or ambition; the power to disclose carries with it a responsibility to act ethically. Your conscience will then be bulletproof, something very important as you will spend a lot of time in there. No guarantees, but an ethical disclosure may be easier to defend as well.
People of conscience, leakers and whistleblowers alike, we’re made. We’re made by what the government does and fails to do, and by what we witness. If government acted as the Founders expected it should, we would not be here, like mushrooms that didn’t pop up on a dry lawn.
It’s what all of us share: a love of country, if not necessarily its politicians. It’s in your hands to be on the right side of this struggle. One courageous act of conscience can make a difference in an America gone astray. That will be your anchor on an unsettling and fearful journey. I made a choice to be a whistleblower. I’d do it again. To me, the juice was worth the squeeze. You?
Copyright © 2017. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
I am very proud to call these two people friends:
— Jesselyn Radack, who blew the whistle on Department of Justice malfeasance in the handling of the “American Taliban” John Walker Lindh. Jess went on to become a key part of Edward Snowden’s defense team (full disclosure: Jess was also one of my lawyers in my own whistleblower struggle with the State Department.)
— Tom Drake, who blew the whistle on NSA domestic spying in the years right after 9/11, and who is cited by Edward Snowden as an important example as he decided whether or not to further expose the unconstitutional acts of the National Security Agency. In return for his truth telling, Tom was rewarded by being prosecuted under the Espionage Act, a tactic the Obama administration has now used seven times against intelligence whistleblowers, more than all previous administrations combined.
We had a terrific lunch, and if only the walls could talk…
Copyright © 2017. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Chelsea Manning, who is currently serving a 35-year prison sentence for leaking government documents to WikiLeaks as an act of conscience (why she said she did it) concurrent with Hillary Clinton exposing much higher-level classified documents to the Chinese for her own convenience (why she said she did it), has been threatened with possible “indefinite solitary confinement” for a series of trivial infractions, including owning expired toothpaste and sweeping food onto the floor.
Her (Manning, not Clinton) hearing is today, August 18.
ACLU attorney Chase Strangio says Manning is additionally accused of “disrespect” for requesting her lawyer while speaking to a guard and “prohibited property” for owning books and magazines that include the Caitlyn Jenner cover issue of Vanity Fair.
Manning’s supporters provided a detailed list of her alleged violations:
Manning’s “prohibited property” included:
Vanity Fair issue with Caitlyn Jenner on the cover, Advocate, OUT Magazine, a Cosmopolitan issue with an interview of Chelsea, Transgender Studies Quarterly, novel about trans issues, the book Hacker, Hoaxer, Whistleblower, Spy — The Many Faces of Anonymous, the subversive book I Am Malala,” and legal documents being used for her pending appeals including the Senate Torture Report.
Perhaps there is some validity to the Senate Torture Report being prohibited property, as it clearly is pornography.
If you wish to support free speech, you can sign a petition supporting Chelsea online. I did.
If you wish to simply rant about how she deserves it, and/or shout homophobic slurs, well, I guess we have the comments section below where you can relieve yourself.
What all whistleblowers have in common is the same government that gives lip service to the ideas of transparency and free speech aggressively goes after each and every one of them.
Meet Lieutenant Colonel Jason Amerine
We all know Snowden; who is Lieutenant Colonel Jason Amerine?
Amerine was one of the first Green Berets to enter Afghanistan in 2001, leading a joint U.S.-Afghan team in firefights in the Taliban stronghold of Kandahar. Yet in January the Army escorted Amerine out of his office at the Pentagon office, cut off his pay, refused to allow him to retire, and opened a criminal investigation after the FBI discovered he was sharing information with Congress on policies for freeing American hostages.
Guilty of what? Talking to Congress.
Failed Hostage Rescue Policy
Amerine grew increasingly concerned over the course of his work that the U.S. government process for freeing American hostages abroad was flawed.
Amerine worked behind the scenes with Representative Duncan Hunter to try an fix it. The congressman crafted a bill that would create a single office to coordinate hostage-freeing efforts; the current process is a bureaucratic tangle involving the FBI, the Pentagon, the State Department and the intelligence agencies. Amerine was particularly concerned about Caitlan Coleman, an American who was traveling in Afghanistan while pregnant when she was kidnapped in 2012.
Members of Congress have security clearances, and are charged with oversight roles. Amerine did not go to the media, put documents on the internet or otherwise come close to violating any secrecy laws. He just p*ssed off the wrong people.
As if cutting off his pay (Amerine claims retaliation, the Army has no comment) was not enough, Amerine wanted to retire but was kept on active duty against his will by Army Secretary John McHugh while the Army’s Criminal Investigation Command probes his activities. The active duty status is significant, as it allows the government to try Amerine through the military justice system, which does not afford a defendant the same rights and privileges the civil courts do. It also makes it easier for the government to keep the proceedings secret, as was done with whistleblower Chelsea Manning.
After staying silent and going through channels as whistleblowers are always told to do, Amerine is now fighting back. He has retained legal counsel, and filed a complaint with the Army’s Inspector General. The soldier’s Class of 1993 West Point colleagues created a White House “We the People” petition. Reaching 100,000 signatures would obligate the White House to respond to a request that it provide whistleblower protection and end the investigation. You can sign the petition yourself. Amerine also has a Facebook page where you can show support for him.
The Bureaucracy is Broken
“This bill helps to resolve the FBI’s impotence to help our hostages overseas as well as our government’s disorganized efforts across all agencies,” Amerine wrote. “The bureaucracy is broken… But the Army somehow thought it made sense to initiate a CID investigation into me executing both my duty and my right to speak to Congress.”
The Obama administration, in its war on whistleblowers, just lost a major battle. Major in its venue — the Supreme Court — and major in its implications for future whistleblower cases.
The Court’s decision in Department of Homeland Security v. Robert MacLean curtails the government’s manipulation of pseudo-classified information to punish whistleblowers, and strengthens the Whistleblower Protection Act (WPA).
In July 2003, TSA alerted all marshals of a possible hijacking plot. Soon after, TSA sent an unclassified, open-air text message to marshals’ cell phones canceling several months of missions to save on hotel costs. Fearing such cancellations in the midst of a hijacking alert created a danger to the flying public, veteran Air Marshal Robert MacLean tried to get TSA to change its decision.
After hitting a dead end, MacLean spoke anonymously to MSNBC, who published a critical story. Only 24 hours later, and after 11 members of Congress voiced concern, TSA reversed itself, putting marshals back on the flights. A year later, MacLean appeared on TV in disguise to criticize agency policies he felt made it easier for passengers to recognize undercover marshals. The TSA recognized MacLean’s voice and discovered he had also released the unclassified 2003 text message. He was fired in April 2006.
MacLean discovered that months after firing him, TSA had retroactively classified as “security sensitive information” (SSI) the unclassified text message he had leaked. SSI is a designation created by TSA via administrative memo, and had no basis in law. TSA decided nonetheless that leaking a retroactively SSI-classified document was cause enough to fire a federal worker. MacLean fought back.
In 2013, after a long series of legal wrangles, a United States Court of Appeals decided that MacLean was entitled to his old marshal job back under the Whistleblower Protection Act of 1989. The act generally limits its protections to “disclosures not specifically prohibited by law.” The court said SSI information was not really “classified” at all, and thus MacLean’s disclosure was not a violation of law.
The Department of Justice challenged the decision in front of the Supreme Court. The Supremes agreed on January 21 with the lower court’s decision, ruling in favor of MacLean and against the government.
Significance of the Decision
The Court made clear TSA’s self-created classification, SSI, did not have the power of law. MacLean’s disclosure of SSI material thus did not violate any actual laws making disclosure of properly classified material a crime. There were no grounds to have fired him.
While by law the U.S. government recognizes only three basic levels of classification (confidential, secret, top secret), since 9/11 government agencies on their own have created pseudo categories of secrecy like SSI, hybrids that casually seek to incorporate the full weight of formal law. There are currently 107 designations just for “sensitive” information alone, none of which receive any review outside of the agency that created them. Allowing any part of the government to declare this or that classified under their own rules means everything can be classified, and every statement by every official potentially actionable, with no external oversight or redress possible.
The Court also shot down government claims that a law allowing TSA to “prescribe regulations” means the agency can otherwise control disclosures with the force of law. The statute, the Court said, “does not [itself] prohibit anything; instead, it authorizes” the TSA to make choices. No one prohibited MacLean from disclosing an at-the-time unclassified text, nor would it be reasonable to assume something unclassified couldn’t be disclosed.
The Court did agree with TSA that actions such as MacLean’s can have legitimate national security repercussions. Dealing with that issue “must be addressed by Congress or the President, rather than by this Court,” and, by extension, not by TSA acting on its own.
Regulation is Not Law
And as if the point was not clear enough, the Supreme Court stated “interpreting the word ‘law’ to include rules and regulations could defeat the purpose of the whistleblower statute. That interpretation would allow an agency to insulate itself… simply by promulgating a regulation that ‘specifically prohibited’ all whistleblowing.”
The Supreme Court’s decision answers a key question regarding the scope of exemptions to federal whistleblower protection law. In a blow to the self-proclaimed “most transparent administration ever,” the Court ruled against the use of pseudo-classification as a tool to hide from the public embarrassing or even criminal information. Had the Court held otherwise, no act of whistleblowing could be considered protected. All the government would have had to do to stop an act by a conscientious employee would be to retroactively slap a self-made category of secrecy on whatever was disclosed, and wash its hands of the miscreant.
Attorney Tom Devine,of the Government Accountability Project, was part of the team that represented MacLean. “This victory,” Devine said, “means that the cornerstone of whistleblower rights has survived — the supremacy of statutory rights passed by Congress over agency secrecy rules. If Mr. MacLean had lost, agencies could cancel those rights through internal regulations, and the Whistleblower Protection Act would have been an unenforceable honor system. In the aftermath, the WPA is alive, well and stronger than ever.”
What About that Retroactive Classification?
Also a part of MacLean’s firing from TSA was the issue of the agency retroactively marking the information he was punished for leaking as SSI, some time after it was sent out to all air marshals in an unclassified open text. The Court let stand this government power to retroactively classify information.
According to MacLean attorney Tom Devine, retroactively pseudo-classifying information as SSI was not an issue in MacLean’s appeal, and should not inhibit all whistleblowing. Following MacLean’s firing, Executive Order 13556 in 2010 made clear categories such as SSI alone does not affect disclosure laws such as the Whistleblower Protection Act. In addition, the “anti-gag” provision of the later Whistleblower Protection Enhancement Act already outlawed liability for disclosures involving “unmarked but classified” information. That law’s definitions require information to be specifically designated as classified, not just to deserve secret status.
That’s the bigger picture. On a more personal level, what’s next for MacLean?
“I’m a sheepdog, I fight until I’m unconscious or dead,” said MacLean. “The public paid me considerably more than most federal employees. I had the power to arrest people. I was extensively trained and gave an oath that I would risk my life engaging in firefights inside crowded missiles.”
“I want to resume serving in law enforcement,” said MacLean. “If my country wants me back serving as an air marshal, I will serve to the best of my ability and with honor.”
Tough times call for desperate acts…
Contract Fraud with Your Money
Tim Ferner blew the whistle on a contract-steering scam involving a middleman in Florida and an engineering company hired to develop anti-terrorism techniques.
Tim Ferner suspected the scam in 2007 when his superiors at the Coalition and Irregular Warfare Center downplayed his concerns about how contracts were being doled out. Science Applications International Corporation (SAIC), received those contracts.
Ferner tried to go through military channels to stop the fraud he witnessed, Instead of helping, his superiors made his life difficult, even threatening to deploy him to Afghanistan while he was undergoing cancer treatment. Ultimately, he was fired from his job as Chief of Staff for the Coalition and Irregular Warfare Center at Nellis Air Force Base and relegated to a menial position. With channels closed off and retaliation underway, the case went to court.
SAIC and the government reached a settlement. The Department of Justice went to pains to note the settlement contained “allegations only and there has been no determination of liability.” However, SAIC agreed to pay the government $5.75 million to resolve allegations it circumvented the bidding process to obtain lucrative contracts.
Ferner’s lawyers claimed the alleged scam was facilitated by a civilian middleman who “claimed to be a high-ranking government official who had authority to bypass the bidding process, none of which was true.” Ferner himself “was alarmed that his military supervisors condoned and wanted to cover up the violation.”
And hey, small world: SAIC around the same time also paid the government $11.75 million to settle allegations it charged inflated prices for another, unrealted, contract.
EXCLUSIVE: Ferner Recounts His Whistleblowing
Ferner received a nice financial award under the False Claims Act, and left the U.S. for New Zealand. In an exclusive, he speaks out on his own experience as a whistleblower, with some hard words for America about how its government works:
Exactly one year after my whistle-blowing case became public, I’m looking back and wondering: “What the hell was I thinking?” Like many whistleblowers, my allegations were validated; I was vindicated but nobody was ever held accountable. So actually, what was accomplished?
My case pales in comparison to others working in the government who have come across really bad people doing horrendous things. All across America there are thousands of regular people, brave men and women who happen upon malfeasance. These people had the courage and conviction to do the right thing and report it. Why? Like myself, these people did the right thing because honor and integrity are the core essence of who they are. Unfortunately, honesty, integrity and dedication to professionalism are dying traits across America and individuals who demonstrate these qualities are punished, especially those who work within the government sector.
I’ve always felt that as a member of the United States military it was an honor and privilege to serve a great nation. And that, in addition to my legal obligations, I had a moral obligation to ensure that the monies the American people paid were spent in the most effective and efficient manner. I always treated government monies the same as my own personal money and spent it judiciously. Unfortunately, other military members and government employees don’t hold the same view. Consequently, millions and millions of taxpayers’ dollars are wasted needlessly. Like thousands of other whistle-blowers working for the government, I found out what happens when you have the audacity to call them out on fraud, waste and abuse and try and hold people accountable.
The terrorist attacks that occurred on 9/11 changed our country in many ways. People don’t recognize that it’s changed the way the government provides safety and security to the people. The government embraced contractors to provide security in keeping America safe. We seem to be safer but at what cost? This decision has transformed the governmental contracting process into something akin to a gigantic hog’s trough. The government pours an endless supply of money into the trough and the contractors continue to “belly up” and feed totally unchecked. The government provides little oversight over monies spent and a fearful public doesn’t care so long as they think they are safe.
Consequently, unscrupulous individuals continue to line their pockets at our expense. Even when they are caught, the government does nothing and seemingly doesn’t care. Contractors pay huge fines under the auspices of “avoiding the costs of protracted litigation” while the individuals involved plead to lesser charges in exchange for working with prosecutors. The fraud, waste and abuse is so prevalent that this ridiculous cycle is the only way to keep it in check. The “Justice System” is devoid of any justice or accountability; it’s solely a process designed to make it look like something is being done.
I uncovered in excess of $42 million in fraud. Despite this, nobody has been prosecuted or held accountable. Like so many other contractors, a multimillion dollar settlement was paid to the government to “costly, protracted litigation.” The individual operating as the “middleman” was ultimately found to be liable for $42 million. Despite this, he negotiated this down and paid a fine of $105,000 in exchange for providing assistance to the government in “ongoing investigations.” Amazingly, all these people still have security clearances and still work as a contractors for the government. What message does this send about the government’s commitment to honesty and integrity in the contracting community?
The Air Force officers responsible for overseeing the programs involved in the fraud all walked away with no repercussions to their careers. The taxpayers paid a lot of money to some very senior officers to not be held accountable. A sad commentary that in today’s Air Force, the moral fibre of the command environment is so fetid that it views fraud as a normal cost of doing business. Nice to know the senior leaders who are deciding the fate of your sons and daughters get that privilege given their lack of morality. How can we expect them to make an appropriate decision on the sanctity of life when they lack the morality to decide simple things like what’s right and wrong concerning contract fraud? Aren’t the military supposed to be above the pettiness of politics? Or has the military just become another breeding ground for the dysfunctional politicians that now stymie our political system? Given the fiscal state of the country people should be outraged!
Like so many other whistle-blowers; I know in my heart I did the right thing in reporting the fraud. And again, like so many other whistle-blowers I was the only one who paid a price throughout the ordeal. Ostracised, targeted and ultimately punished because I had the audacity to believe we the people deserve better. When are we going to start holding people accountable? Like other whistleblowers; I’ve done my part. Everybody needs to do their part. It’s hard for others to look at maleficence in government and report it when they see how whistleblowers are treated but more needs to be done.
I hope you never find yourself in the unenviable position of being a whistleblower; and I mean that. Yeah, I got a nice settlement for my troubles as a whistleblower but that’s not why I did it. I did it because it was the right thing to do. Knowing what I know now, I’m still looking back thinking; “What the hell was I thinking?”
The Department of Veterans Affairs’ (VA) in-house watchdog has demanded that the Project On Government Oversight (POGO) turn over all information it has collected related to abuses and mismanagement at VA medical facilities, according to a subpoena delivered to POGO May 30.
The VA is part of the federal government. POGO is a private non-profit group.
The subpoena from the VA Office of Inspector General demands all records POGO has received from current or former VA employees, as well as any other individuals, including veterans. The subpoena asks for records related to “wait times, access to care, and/or patient scheduling issues at the Phoenix, Arizona VA Healthcare System and any other VA medical facility.”
The Project On Government Oversight has for 33 years helped government whistleblowers. They are scrupulously non-partisan and very dedicated to exposing waste, fraud and mismanagement in Washington. They’re part of the reason we know that the Department of Defense wasted billions on things like a $7,600 coffee maker and a $436 hammer. They are very active in trying to bring some modicum of transparency to what the NSA is doing.
The Veteran’s Affairs disaster is well-known. In short, the VA, which should be helping returning service members with their health problems, instead has been hiding their impossible wait times for appointments. They got caught for some of what they did already, but to ferret out more, POGO set up an online drop-box where people could submit tips and blow the whistle anonymously. Much of the information POGO received– which could very likely help veterans– has been submitted by persons from inside the VA. After all, who knows more about what the government is really doing (or not doing) than those who work inside? Sadly, those same workers also know that today, blowing the whistle is considered a Crime Against the State, and they do not wish to go to prison simply for informing the American people what the People’s Government is up to.
As a way of helping those who wish to pass on information that may help our veterans, POGO created an online drop box. This is the equivalent of an email Inbox, except it is secure. POGO advises “To maximize your security and anonymity, you should consider using the Tor Browser Bundle for all of your electronic correspondence with POGO. You should never use a government or contractor phone, fax, or computer to contact POGO. The information you submit from this page will be sent to POGO in an encrypted message.”
Some VA employees who contacted POGO and requested confidentiality said they feared retaliation if their names were divulged. Some of the employees told POGO that they had already filed reports with the VA. You know, through channels.
Encryption still pretty much works. And the government knows that. That’s why, instead of trying to decrypt the VA whistleblowers’ messages to POGO, the VA has simply demanded them from POGO, unencrypted, via subpoena.
A subpoena is an order to do something, most typically to produce a document or appear in court.
Wait a second. How can the Veteran’s Administration be able to “legally” demand documents from a private, non-governmental entity like POGO anyway? The VA’s Inspector General, whose real job is supposedly to inspect the VA and root out waste, fraud and mismanagement, has subpoena powers that are supposed to be used for that purpose.
All other federal Inspectors General have the same power. So does Congress. These subpoenas have the titular power of law. They have the same power that a real court has to demand documents be produced. These sorts of subpoenas are authorized within the agency itself, and do not require probable cause or a court’s approval. They are considered administrative acts and occur with no outside oversight.
That said, subpoena power was never intended as a blunt tool to chase down whistleblowers even as the organization they’re blowing the whistle on fails in its mission. You’d think that the VA Inspector General has gone rogue here. But that’s not true. This is 2014 and we’re in Post-Constitutional America.
Subpoenas and the Old Fourth Amendment
The Department of Justice created a novel interpretation of the Fourth Amendment that currently allows it to access millions of records on Americans without search warrants. To clarify, a warrant is court permission to search and seize something. A warrant must be specific– enter Mr. Anderson’s home and look for drugs. Warrants are not free-hunting licenses (with exceptions) and cannot be general in nature, such as search everyone around 93rd Street for whatever illegal things they might have laying around.
DOJ has turned all that around. It claims now that under the Fourth Amendment, it can subpoena an Internet company such as Facebook and demand they look for and turn over all the records they have about Mr. Anderson. DOJ isn’t searching, per se– they are demanding Facebook do that for them, so no warrant is needed. Worse yet, DOJ believes it can subpoena multiple records, maybe all the records something like Facebook has, with one piece of paper. The same thing applies, DOJ claims, to email. If they came to someone’s home and demanded access to that person’s emails, it would require a specific search warrant. Instead, if DOJ issues a subpoena to say Google, they can potentially vacuum up every Gmail message ever sent.
The Department has continued this practice even after a federal appeals court in 2010 ruled that warrantless access to e-mail violates the Fourth Amendment. An FBI field manual released under the Freedom of Information Act also makes clear agents do not need warrants to access email in bulk when pulled directly from Google, Yahoo, Microsoft and others.
Snowden was Wrong
Edward Snowden, along with many others, has said that the best tool right now to defeat the NSA and other government spying is the use of encryption. It is possible that some forms of encryption are not breakable by the NSA. It is likely that breaking other forms of encryption is slow and/or expensive to do on a world wide web-scale. It is a race of course, between how many supercomputing algorithms the NSA can throw at the problem and the cleverness of the people creating new forms of better encryption.
If the government can access documents and information with a simple piece of paper– a subpoena– then all the encryption in the world is pointless.
POGO says they’ll fight, and that their people are willing to go to jail instead of releasing any documents. Let’s believe them. But the possibility of the government getting the documents is likely enough to scare off would-be whistleblowers from submitting anything new. And not every whistleblower organization has the guts and the resources of POGO to fight back.
The race for privacy may now be over, and the government is laughing at you still running around the track while they cut across the grass to the finish line. Suckers.
The personal Gmail account of a State Department whistleblower, Richard P. Higbie, a diplomatic security agent, was hacked, and four years worth of messages — some detailing alleged wrongdoing at the agency — were deleted. The emails allegedly included evidence about misconduct by top officials at the Department, communications with other potential whistleblowers, and correspondence with members of Congress who are investigating allegations of misconduct by State Department employees to include use of prostitutes, soliciting child sex and more. See the sleazy details here.
According to the New York Times, information hacked raises a flurry of questions about the management of the State Department under Hillary Rodham Clinton. Higbie, a senior criminal investigator and the second-highest-ranking agent with the service’s Dallas office, has an employment lawsuit against the State Department, alleging it retaliated against him.
Another coincidence is that in July 2013 Higbie’s lawyer’s office was broken into, though only three laptops were taken. Other valuables in clear sight were left untouched. The burglars entered the law offices by busting through a wall. The burglars were seen on surveillance video, and the lawyers claim they know where the laptops may be via IP tracking software, but so far no arrests have been made.
Another coincidence is that at the time of the break-in and stolen laptops, Higbie’s lawyers were also representing another State Department whistleblower, Aurelia Fedenisn, a former investigator for the Department’s inspector general. She revealed in June a pattern of alleged cover-ups by top department officials. The alleged cover-ups included keeping quiet separate IG investigations that found that members of then-Secretary Hillary Rodham Clinton’s security detail had engaged hookers and that the U.S. ambassador to Belgium solicited underage prostitutes. These were among a string of investigations by the service, responsible for protecting dignitaries and investigating crimes within the Department, that were allegedly derailed by senior officials, including one instance of interference by Clinton Chief of Staff Cheryl Mills. Mills is expected to play a significant role in a Hillary administration, and was also rumored to have squashed any investigation into the sexual shenanigans of State Department employee Brett McGurk.
The lawyers for both State Department whistleblowers made an interesting comment concerning the break-in at their offices. ““We do not believe the federal government officially authorized the actions. We are very suspicious and do believe it definitely has the insinuations of a political crime. Meaning, the individuals who broke into our office were looking for information that has significant ramifications.”
Legal folks are familiar with the term cui bono, commonly used to suggest that the person or people guilty of committing a crime may be found among those who have something to gain. That said, any speculation that the email hacks and the break-ins have anything at all to do with protecting the reputation of Hillary Clinton are without evidence. For now.
The whistleblower statement is online, buried in a less prominent location multiple clicks deep. While I regret the technical error, my sentiments are unchanged.
(On the day Bradley Manning’s verdict is announced, Orwell’s Memory Hole is indeed alive in the United States. This excellent article was not written by me, and originally appeared on TechDirt)
The folks from the Sunlight Foundation have noticed that the Change.gov website, which was set up by the Obama transition team after the election in 2008 has suddenly been scrubbed of all of its original content. They noted that the front page had pointed to the White House website for a while, but you could still access a variety of old material and agendas. They were wondering why the administration would suddenly pull all that interesting archival information… and hit upon a clue.
A little bit from the “ethics agenda”:
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. Obama will ensure that federal agencies expedite the process for reviewing whistleblower claims and whistleblowers have full access to courts and due process.
Yeah. That statement seems a bit embarrassing at the very same time Obama’s administration is threatening trade sanctions against anyone who grants asylum to Ed Snowden. Also… at the same time that we get to see how whistleblower Bradley Manning’s “full access to courts and due process” will turn out. So far, it’s been anything but reasonable, considering that the UN has already condemned Manning’s treatment as “cruel and inhuman.” And people wonder why Snowden left the country…
MY COMMENT: Yeah, Hope and Change my ass.
Bonus: Make you own Hope and Change poster here.
This article originally appeared on Huffington Post.
As a State Department whistleblower, I think a lot about Edward Snowden. I can’t help myself. My friendships with other whistleblowers like Tom Drake, Jesslyn Radack, Daniel Ellsberg, and John Kiriakou lead me to believe that, however different we may be as individuals, our acts have given us much in common. I suspect that includes Snowden, though I’ve never had the slightest contact with him. Still, as he took his long flight from Hong Kong into the unknown, I couldn’t help feeling that he was thinking some of my thoughts, or I his. Here are five things that I imagine were on his mind (they would have been on mine) as that plane took off.
I Am Afraid
Whistleblowers act on conscience because they encounter something so horrifying, unconstitutional, wasteful, fraudulent, or mismanaged that they are overcome by the need to speak out. There is always a calculus of pain and gain (for others, if not oneself), but first thoughts are about what you’ve uncovered, the information you feel compelled to bring into the light, rather than your own circumstances.
In my case, I was ignorant of what would happen once I blew the whistle. I didn’t expect the Department of State to attack me. Snowden was different in this. He had the example of Bradley Manning and others to learn from. He clearly never doubted that the full weight of the U.S. government would fall on him.
He knew what to fear. He knew the Obama administration was determined to make any whistleblower pay, likely via yet another prosecution under the Espionage Act (with the potential for the death penalty). He also knew what his government had done since 9/11 without compunction: it had tortured and abused people to crush them; it had forced those it considered enemies into years of indefinite imprisonment, creating isolation cells for suspected terrorists and even a pre-trial whistleblower. It had murdered Americans without due process, and then, of course, there were the extraordinary renditions in which U.S. agents kidnapped perceived enemies and delivered them into the archipelago of post-9/11 horrors.
Sooner or later, if you’re a whistleblower, you get scared. It’s only human. On that flight, I imagine that Edward Snowden, for all his youthful confidence and bravado, was afraid. Would the Russians turn him over to Washington as part of some secret deal, maybe the sort of spy-for-spy trade that would harken back to the Cold War era?
Even if he made it out of Moscow, he couldn’t have doubted that the full resources of the NSA and other parts of the U.S. government would be turned on him. How many CIA case officers and Joint Special Operations Command types did the U.S. have undercover in Ecuador? After all, the dirty tricks had already started. The partner of Guardian journalist Glenn Greenwald, who broke Snowden’s story, had his laptop stolen from their residence in Brazil. This happened only after Greenwald told him via Skype that he would send him an encrypted copy of Snowden’s documents.
In such moments, you try to push back the sense of paranoia that creeps into your mind when you realize that you are being monitored, followed, watched. It’s uncomfortable, scary. You have to wonder what your fate will be once the media grows bored with your story, or when whatever government has given you asylum changes its stance vis-a-vis the U.S. When the knock comes at the door, who will protect you? So who can doubt that fear made the journey with him?
Could I Go Back to the U.S.?
Amnesty International was on target when it stated that Snowden “could be at risk of ill-treatment if extradited to the U.S.” As if to prove them right, months, if not years, before any trial, Speaker of the House John Boehner called Snowden a “traitor”; Congressman Peter King called him a “defector”; and others were already demanding his execution. If that wasn’t enough, the abuse Bradley Manning suffered had already convinced Snowden that a fair trial and humane treatment were impossible dreams for a whistleblower of his sort. (He specifically cited Manning in his appeal for asylum to Ecuador.)
So on that flight he knew — as he had long known — that the natural desire to go back to the U.S. and make a stand was beyond foolhardy. Yet the urge to return to the country he loves must have been traveling with him, too. Perhaps on that flight he found himself grimly amused that, after years of running roughshod over international standards — Abu Ghraib, Guantanamo, “enhanced interrogation techniques,” “black sites” — the U.S. had the nerve to chide Hong Kong, China, and Russia for not following the rule of law. He certainly knew that his own revelations about massive NSA cyber-spying on Hong Kong and China had deeply embarrassed the Obama administration. It had, after all, been blistering the Chinese for hacking into U.S. military and corporate computers. He himself had ensured that the Chinese wouldn’t turn him over, in the same way that history — decades of U.S. bullying in Latin America — ensured that he had a shot at a future in someplace like in Ecuador.
If he knew his extradition history, Snowden might also have thought about another time when Washington squirmed as a man it wanted left a friendly country for asylum. In 2004, the U.S. had chess great Bobby Fischer detained in Japan on charges that he had attended a 1992 match in Yugoslavia in violation of a U.S. trade ban. Others suggested that the real reason Washington was after him may have been Fischer’s post 9/11 statement: “It’s time to finish off the U.S. once and for all. This just shows what comes around, goes around.”
Fischer’s American passport was revoked just like Snowden’s. In the fashion of Hong Kong more recently, the Japanese released Fischer on an immigration technicality, and he flew to Iceland where he was granted citizenship. I was a diplomat in Japan at the time, and had a ringside seat for the negotiations. They must have paralleled what went on in Hong Kong: the appeals to treaty and international law; U.S. diplomats sounding like so many disappointed parents scolding a child; the pale hopes expressed for future good relations; the search for a sympathetic ear among local law enforcement agencies, immigration, and the foreign ministry — anybody, in fact — and finally, the desperate attempt to call in personal favors to buy more time for whatever Plan B might be. As with Snowden, in the end the U.S. stood by helplessly as its prey flew off.
How Will I Live Now?
At some point every whistleblower realizes his life will never be the same. For me, that meant losing my job of 24 years at the State Department. For Tom Drake, it meant financial ruin as the government tried to bankrupt him through endless litigation. For CIA agent John Kiriakou, it might have been the moment when, convicted of disclosing classified information to journalists, he said goodbye to his family and walked into Loretto Federal Correctional Institution.
Snowden could not have avoided anxiety about the future. Wherever he ended up, how would he live? What work would he do? He’s just turned 30 and faces, at best, a lifetime in some foreign country he’s never seen where he might not know the language or much of anything else.
So fear again, in a slightly different form. It never leaves you, not when you take on the world’s most powerful government. Would he ever see his family and friends again? Would they disown him, fearful of retaliation or affected by the smear campaign against him? Would his parents/best friend/girlfriend come to believe he was a traitor, a defector, a dangerous man? All whistleblowers find their personal relationships strained. Marriages are tested or broken, friends lost, children teased or bullied at school. I know from my own whistleblower’s journey that it’s an ugly penalty — encouraged by a government scorned — for acting on conscience.
If he had a deeper sense of history, Snowden might have found humor in the way the Obama administration chose to revoke his passport just before he left Hong Kong. After all, in the Cold War years, it was the “evil empire,” the Soviet Union, which was notorious for refusing to grant dissidents passports, while the U.S. regularly waived such requirements when they escaped to the West.
To deepen the irony of the moment, perhaps he was able to Google up the 2009-2011 figures on U.S. grants of asylum: 1,222 Russians, 9,493 Chinese, and 22 Ecuadorians, not including family members. Maybe he learned that, despite the tantrums U.S. officials threw regarding the international obligation of Russia to extradite him, the U.S. has recently refused Russian requests to extradite two of its citizens.
Snowden might have mused over then-candidate Obama’s explicit pledge to protect whistleblowers. “Often the best source of information about waste, fraud, and abuse in government,” Obama then said, “is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism… should be encouraged rather than stifled as they have been during the Bush administration.” It might have been Snowden’s only laugh of the flight.
I Don’t Hate the U.S., I Love It Deeply, But Believe It Has Strayed
On that flight, Snowden took his love of America with him. It’s what all of us whistleblowers share: a love of country, if not necessarily its government, its military, or its intelligence services. We care what happens to us the people. That may have been his anchor on his unsettling journey. It would have been mine.
Remember, if we were working in the government in the first place, like every federal employee, soldier, and many government contractors, we had taken an oath that stated: “I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.” We didn’t pledge fealty to the government or a president or party, only — as the Constitution makes clear — to the ultimate source of legitimacy in our nation, “the people.”
In an interview, Snowden indicated that he held off on making his disclosures for some time, in hopes that Barack Obama might look into the abyss and decide to become the bravest president in our history by reversing the country’s course. Only when Obama’s courage or intelligence failed was it time to become a whistleblower.
Some pundits claim that Snowden deserves nothing, because he didn’t go through “proper channels.” They couldn’t be more wrong and Snowden knows it. As with many of us whistleblowers facing a government acting in opposition to the Constitution, Snowden went through the channels that matter most: he used a free press to speak directly to his real boss, the American people.
In that sense, whatever the fear and anxiety about his life and his future, he must have felt easy with his actions. He had not betrayed his country, he had sought to inform it.
As with Bradley Manning, Obama administration officials are now claiming that Snowden has blood on his hands. Typically, Secretary of State John Kerry claimed: “People may die as a consequence to what this man did. It is possible that the United States would be attacked because terrorists may now know how to protect themselves in some way or another that they didn’t know before.” Snowden had heard the same slurs circling around Bradley Manning: that he had put people in danger. After the wars in Iraq and Afghanistan, not to speak of the war on terror, there is irony too obvious to dwell upon in such charges.
Flying into the unknown, Snowden had to feel secure in having risked everything to show Americans how their government and the NSA bend or break laws to collect information on us in direct conflict with the Fourth Amendment’s protections. Amnesty International pointed out that blood-on-hands wasn’t at issue. “It appears he is being charged primarily for revealing U.S. and other governments’ unlawful actions that violate human rights.” Those whispers of support are something to take into the dark with you.
I Believe in Things Bigger Than Myself
Some of the charges against Snowden would make anyone pause: that, for instance, he did what he did for the thrill of publicity, out of narcissism, or for his own selfish reasons. To any of the members of the post-9/11 club of whistleblowers, the idea that we acted primarily for our own benefit has a theater of the absurd quality to it. Having been there, the negative sentiments expressed do not read or ring true.
Snowden himself laughed off the notion that he had acted for his own benefit. If he had wanted money, any number of foreign governments would have paid handsomely for the information he handed out to journalists for free and he would never have had to embark on that plane flight from Hong Kong. (No one ever called Aldrich Ames a whistleblower.) If he wanted fame, there were potential book contracts and film deals to be had.
No, it was conscience. I wouldn’t be surprised if somewhere along the line Snowden had read the Declaration of the Nuremberg War Crimes Tribunal: “Individuals have international duties which transcend the national obligations of obedience. Therefore individual citizens have the duty to violate domestic laws to prevent crimes against peace and humanity from occurring.”
Edward Snowden undoubtedly took comfort knowing that a growing group of Americans are outraged enough to resist a government turning against its own people. His thoughts were mirrored by Julian Assange, who said, “In the Obama administration’s attempt to crush these young whistleblowers with espionage charges, the U.S. government is taking on a generation, a young generation of people who find the mass violation of the rights of privacy and open process unacceptable. In taking on the generation, the Obama administration can only lose.” Snowden surely hoped President Obama would ask himself why he has pursued more than double the number of Espionage Act cases of all his presidential predecessors combined, and why almost all of those prosecutions failed.
On that flight, Edward Snowden must have reflected on what he had lost, including the high salary, the sweet life in Hawaii and Switzerland, the personal relationships, and the excitement of being on the inside, as well as the coolness of knowing tomorrow’s news today. He has already lost much that matters in an individual life, but not everything that matters. Sometimes — and any whistleblower comes to know this in a deep way — you have to believe that something other, more, deeper, better than yourself matters. You have to believe that one courageous act of conscience might make a difference in an America gone astray or simply that, matter or not, you did the right thing for your country.
Cross-posted with TomDispatch.com
What do words mean in a post-9/11 world? Apart from the now clichéd Orwellian twists that turn brutal torture into mere enhanced interrogation, the devil is in the details. Robert MacLean is a former air marshal fired for an act of whistleblowing. He has continued to fight over seven long years for what once would have passed as simple justice: getting his job back. His is an all-too-twenty-first-century story of the extraordinary lengths to which the U.S. government is willing to go to thwart whistleblowers.
First, the government retroactively classified a previously unclassified text message to justify firing MacLean. Then it invoked arcane civil service procedures, including an “interlocutory appeal” to thwart him and, in the process, enjoyed the approval of various courts and bureaucratic boards apparently willing to stamp as “legal” anything the government could make up in its own interest.
And yet here’s the miracle at the heart of this tale: MacLean refused to quit, when ordinary mortals would have thrown in the towel. Now, with a recent semi-victory, he may not only have given himself a shot at getting his old job back, but also create a precedent for future federal whistleblowers. In the post-9/11 world, people like Robert MacLean show us how deep the Washington rabbit hole really goes.
The Whistle Is Blown
MacLean joined the Federal Air Marshal Service (FAMS) in 2001 after stints with the Air Force and the Border Patrol. In July 2003, all marshals received a briefing about a possible hijacking plot. Soon after, the Transportation Safety Administration (TSA), which oversees FAMS, sent an unencrypted, open-air text message to the cell phones of the marshals cancelling several months of missions for cost-cutting reasons. MacLean became concerned that cancelling missions during a hijacking alert might create a dangerous situation for the flying public. He complained to his supervisor and to the Department of Homeland Security’s inspector general, but each responded that nothing could be done.
It was then that he decided to blow the whistle, hoping that public pressure might force the TSA to reinstate the marshals’ flights. So MacLean talked to a reporter, who broadcast a story criticizing the TSA’s decision and, after 11 members of Congress joined in the criticism, it reversed itself. At this point, MacLean had not been identified as the source of the leak and so carried on with his job.
A year later, he appeared on TV in disguise, criticizing the TSA dress code and its special boarding policies, which he believed allowed marshals to be easily identified by other passengers. This time, the TSA recognized his voice and began an investigation that revealed he had also released the 2003 text message. He was fired in April 2006. Although the agency had not labeled that message as “sensitive security information” (SSI) when it was sent in 2003, in August 2006, months after MacLean’s firing, it issued a retroactive order stating that the text’s content was indeed SSI.
A Whistleblower’s Catch-22
That disclosing the contents of an unclassified message could get someone fired for disclosing classified information is the sort of topsy-turvy situation which could only exist in the post-9/11 world of the American national security state.
Under the 1989 Whistleblower Protection Act (WPA), a disclosure prohibited by law negates whistleblower protections. That, of course, makes it in the government’s interest to define disclosure as broadly as possible and to classify as much of its internal communications for as long as it possibly can. No wonder that in recent years the classification of government documents has soared, reaching a record total of 92,064,862 in 2011.
Officially, the U.S. government recognizes only three basic levels of classification: confidential, secret, and top secret. Since 9/11, however, various government agencies have created multiple freestyle categories of secrecy like “SSI,” “Law Enforcement Sensitive,” “Sensitive But Unclassified,” and the more colorful “Eyes Only.” All of these are outside the normal codification system; all are hybrids that casually seek to incorporate the full weight of the formal law. There are currently 107 designations just for “sensitive” information. In addition to those labels, there exist more than 130 sets of extra “handling requirements” that only deepen the world of government secrecy.
At issue for MacLean was not only the retroactive classification of a text message already in the public domain, but what classified could possibly mean in an era when everything related to the national security state was slipping into the shadows. Such questions are hardly semantic or academic. MacLean’s case hinges on how they are answered.
The case against Army Private Bradley Manning and WikiLeaks is, for example, intimately tied up in them. The military hides behind classification to block access to Manning’s “public” trial. With WikiLeaks, despite more than 100,000 U.S. State Department diplomatic cables being available to anyone anywhere on the web, the government continues to insist that they remain “classified” and cannot even be rereleased in response to requests. Potential federal employees were warned to stay away from the cables online, and the State Department even blocked TomDispatch from its staff to shield them from alleged WikiLeaks content (some of which was linked to and discussed, but none of which was actually posted at the site).
With author Tony Shaffer, the government retroactively classified its own account of why he was given the Bronze Star and his standard deployment orders to Afghanistan after he published an uncomplimentary book about American actions there. The messy case of alleged “hacktivist” Barrett Brown includes prosecution for “disclosing” classified material simply by linking to it at places where it had already been posted online; and, while still at the State Department, I was once accused of the same thing by the government.
In MacLean’s case, over a period of seven years, the legality of the TSA firing him for using an only-later-classified text was upheld. Legal actions included hearings before administrative judges, the Merit Systems Protections Board twice, that interlocutory appeal, and the U.S. Court of Appeals for the Ninth Circuit. The sum of these decisions amid a labyrinth of judicial bureaucracies demands the use of the term Kafkaesque. MacLean, so the general judgment went, should have known that the text message he planned to leak was a classified document, even when it wasn’t (yet). As a result, he should also have understood that his act would not be that of a whistleblower alerting the public to possible danger, but of a criminal risking public safety by exposing government secrets. If that isn’t the definition of a whistleblower’s catch-22, what is?
What such a twisted interpretation by the various courts, boards, and bodies meant was chillingly laid out in an amicus brief on behalf of MacLean filed by the United States Office of Special Counsel (a small, lonely U.S. government entity charged with protecting whistleblowers):
“Whistleblowers should not have to guess whether information that they reasonably believe evidences waste, fraud, abuse, illegalities or public dangers might be later designated as SSI [unclassified sensitive security information] and therefore should not be disclosed. Rather than making the wrong guess, a would-be whistleblower will likely choose to remain silent to avoid risking the individual’s employment.”
Seven Years Later…
In 2011, five years after he had been fired as an air marshal, MacLean’s case finally reached the United States Court of Appeals for the Federal Circuit. Two full years after that, in April 2013, the court handed down a decision that may yet provide justice for Robert MacLean — and for future whistleblowers. While awkwardly upholding previous decisions that the government can indeed retroactively classify information, even documents in categories like SSI that exist outside the government’s official framework for classification and secrecy, the court tackled a more basic question: Was Robert MacLean a whistleblower anyway, entitled to protection for his act of conscience?
Here lies the conflict at the heart of just about every whistleblower case — between the public’s right (and need) to know and the (at times legitimate) need for secrecy. The government typically argues that individuals should not be allowed to decide for themselves what remains secret and what doesn’t, or chaos would result. At the same time, in a post-9/11 world of increasing secrecy, the loss of the right to know, and the massive over-classification of documents, the “conflict” has become ever more one-sided. If everything can be considered a classified secret document too precious for Americans to know about, and nothing classified can be disclosed, then the summary effect is that nothing inside the government can ever be shown to the public.
The court found that while the Transportation Safety Administration could legally apply any classification it wanted to information any time it wanted, even retroactively, simply slapping on such a label did not necessarily prohibit disclosure. Absent an actual law in MacLean’s case mentioning SSI, a term created bureaucratically, not congressionally, there could be no Whistleblower Protection Act-excepting prohibition. In other words, MacLean could still be a whistleblower.
One of MacLean’s lawyers, Tom Devine, told me the decision “restored enforceability for the Whistleblower Protection Act’s public free speech rights. It ruled that only Congress has the authority to remove whistleblower rights. Agency-imposed restraints are not relevant for WPA rights.”
“With this precedential decision,” MacLean explained to me, “agencies can no longer cancel out Whistleblower Protection Act rights with their semi-secret markings like SSI, Law Enforcement Sensitive, etcetera.”
In a concurring opinion, United States Court of Appeals for the Federal Circuit Judge Evan Wallach was even clearer: “Mr. MacLean presented substantial evidence that he was not motivated by personal gain but by the desire to protect the public… I concur to emphasize that the facts alleged, if proven, allege conduct at the core of the Whistleblower Protection Act.”
MacLean’s case now returns to the Merit Systems Protection Board. The board is a complex piece of bureaucracy inside the already complicated federal government personnel system. In simple terms, it is supposed to be a place to appeal personnel actions, such as alleged unfair hirings and firings. It thus serves as a kind of watchdog over the sprawling federal human resources empire. The Board now has the court-ordered specific charge to “determine whether Mr. MacLean’s disclosure qualifies for WPA protection.”
Note as well that this case could continue without end for years more, traveling on “appeal” back through the federal judicial bureaucracy and the courts. And remember that this, too, is an advantage to a government that wants ever less known about itself. If, as a federal employee, you are watching a case like MacLean’s (or Thomas Drake’s, or Franz Gayle’s, or Morris Davis’s, or John Kiriakou’s, or even my own small version of this), then you can’t help noticing that the act of whistleblowing could leave you: a) out on your ear; b) prosecuted for a criminal act and/or c) with your life embroiled for years in the intricacies of your own never-ending case. None of this is exactly an encouragement to federal employees to blow that whistle.
Whistleblowers and Secrecy
Threats to whistleblowers abound, so any positive step, however minimalist or reversible, is important. Entering the White House pledging to head the most transparent administration in history, Barack Obama has, in fact, gone after more national security whistleblowers, often using the draconian Espionage Act, than all previous administrations combined.
His Justice Department has repeatedly tried to prosecute whistleblowers, crudely lumping them in with actual spies and claiming they endanger Americans (and sometimes “the troops”) by their actions. In addition, through the ongoing case of Berry v. Conyers, Obama has sought to expand the definition of “national security worker” to potentially include thousands of additional federal employees. Many employees who occupy truly sensitive jobs in the intelligence community (for example, real-world spies at the CIA) are exempt from being granted whistleblower status. They also cannot appeal to the Merit Systems Protection Board if fired. By seeking to expand that exemption to a significantly larger group of people who may work at some federal agency, but in non-sensitive positions, Obama is also functionally moving to shrink the pool of potential whistleblowers. In Berry v. Conyers, for example, the persons Obama seeks to exempt as occupying sensitive jobs are merely an accounting technician and a commissary worker at an Air Force base. Neither of them even hold security clearances.
What happens with MacLean’s case potentially affects every future whistleblower. If the mere presence of a pseudo-classification on an item, even applied retroactively, negates whistleblower protections, it means dark days ahead for the right of the citizenry to know what the government is doing (or how it’s misbehaving) in its name. If so, no act of whistleblowing could be considered protected, since all the government would have to do to unprotect it is classify whatever was disclosed retroactively and wash its hands of the miscreant. Federal employees, not a risk-taking bunch to begin with, will react accordingly.
This is what gives MacLean’s case special meaning. While the initial decision on his fate will occur in the bowels of the somewhat obscure Merit Systems Protections Board, it will set a precedent that will surely find its way into higher courts on more significant cases. Amid a lot of technical legal issues, it all boils down to something very simple: Should whistleblower protections favor the conscience of a concerned federal employee willing to risk his job and the freedom to inform the public, or should they dissolve in the face of an unseen bureaucrat’s (retroactive) pseudo-classification decision?
Procedurally, there are many options ahead for MacLean’s case, and the government will undoubtedly contest each tiny step. Whatever happens will happen slowly. This is exactly how the government has continually done its dirty work post-9/11, throwing monkey wrenches in the gears of the legal system, twisting words, and manipulating organizations designed to deliver justice in order to deny it.
MacLean smiles at this. “I did seven years so far. I can do seven more if they want. There’s too much at stake to just give up.”
At an April 30 briefing regarding press reports that the State Department is seeking to intimidate or punish employees planning on blowing the whistle on Department incompetence surrounding the deaths at the Benghazi Consulate, deputy spokesman Patrick Ventrell said:
The State Department would never tolerate or sanction retaliation against whistleblowers on any issue, including this one. That’s an obligation we take very seriously.
To which I reply: Poppycock.
And by the way, any of you potential State Department whistleblowers need some advice, it is info(at)wemeantwell.com
The Freedom of the Press Foundation released an audio recording of Bradley Manning’s statement to the military court.
By releasing this audio recording, we wish to make sure that the voice of this generation’s most prolific whistleblower can be heard—literally—by the world. Please spread his words as far as you can: on your blog, in your videos, on Twitter and on Facebook.
Mother Jones weighs in with an excellent analysis of the a new law supposedly expanding whistleblower protections for some government employees. Obama also signed the 2013 National Defense Authorization Act (NDAA), which extends similar protections to defense contractors who expose waste and corruption. But the NDAA signing came with a caveat that blindsided the bill’s backers and has some in the whistleblower community up in arms: In a “signing statement,” (remember how George W. used those to circumvent the law?) Obama wrote that the bill’s whistleblowing protections “could be interpreted in a manner that would interfere with my authority to manage and direct executive branch officials,” and he promised to ignore them if they conflicted with his power to “supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.”
Mother Jones was also kind enough to quote me in the article as saying the signing statement “is merely another expression of [the Obama] administration’s hostile policy toward all whistleblowers…It disappoints me, and devalues my own efforts to bring transparency to the government.”
Read the full article on Mother Jones.
Testing the old saying “there is no such thing as bad publicity,” former pro-wrestler former Minnesota governor and possible crazy person Jesse “The Body” Ventura has written a new book in which he reports favorably about We Meant Well and my own year-long battle with the State Department for my First Amendment rights.
For those readers unfamiliar with the Ventura oeuvre, he is the former governor of Minnesota and author of four national bestsellers, including 63 Documents the Government Doesn’t Want You to Read and American Conspiracies. Ventura is the host of the television show Conspiracy Theory on truTV. He says things like people shouldn’t drink fluoridated tap water, because fluoride was first added to water by the Nazis, and is added to the water because it is a chemical precursor to Prozac and designed to make us sheep in the government’s hands.
In his latest book, DemoCRIPS and ReBLOODlicans: No More Gangs in GovernmentVentura kindly mentions my story on page 120 as part of a longer rant against government crackdown on dissent. I’m not sure about the fluoride, but I kinda agree with him about the crackdown on dissent. Ventura quotes from a piece I wrote for TomDispatch.com and others about Joining the Whistleblowers’ Club.
Politics, they say, does make for strange bedfellows.
The nice people at Washington Diplomat magazine are running a nice piece on We Meant Well.
The article is mostly in Q&A format and the author, himself a former Foreign Service Officer, asked some good questions:
Q: But surely you can understand that if lots of FSOs decided to write critical books like yours while still on active duty it would create chaos?
A: I can understand that argument. But this is part of living in a free society. As Donald Rumsfeld said, “Democracy is messy.” The State Department promotes the rights of people to speak back to their governments. The Arab Spring — we want people in Syria to shout back at their government, but we won’t let our own employees do that.
Q: Did you consider resigning after or during your experience in Iraq?
A: People ask me why haven’t you resigned or if I’m a whistleblower — a Bradley Manning with a better haircut — and I don’t buy any of that stuff. I have no interest in resigning. What I did was write down what happened to me. If you came to Iraq with me, that’s what you would have seen.
You don’t have to be Bradley Manning. I think it’s reasonable for people to believe that they can write about and talk about what goes on in government. The vast majority of people in government who make the vast majority of decisions which impact us aren’t elected. They’re just people like me, and so there is an obligation for people inside the government to tell people outside the government what goes on in there.
Q: Do you have regrets?
A: Not really, my career was essentially over. I’m leaving something else behind and I’m not done yet. I told the PRT story to the world. I left something so my family knows what I did in Iraq and I sent a message for my kids that some things in life are worth standing up and getting kicked in the ass for, and the State Department may yet have to change the way it looks at the writing of its employees — that part is still yet to be written.
One of the problems with the Foreign Service is we’ve never recovered from the McCarthy era. We gave up being an aggressive advocate in the foreign affairs arena during those years and we’ve never come back. It’s all about going along and play along and it rewards people who do.
A lot of things the military does have finite, measurable results. With State, the goals are amorphous — to secure friendly relations, to empower women, etc. — it’s stuff that isn’t measurable, and so it’s easy to just kind of float around.
The people who get promoted don’t have opinions; they’re the people who just do whatever they’re told. I don’t think that’s good for America.
Read the whole article online now at Washington Diplomat Magazine!
Over the course of the last year or so I have met many men and women who risked their freedom, their careers and their livelihoods to expose government waste, fraud, unconstitutional domestic spying, torture and more– “blowing the whistle” as it has come to be known.
Instead of talking about what is a whistleblower, maybe it is better to say why is a whistleblower. Some easy points: No one intends to do this, starts out with a plan, hides among unsuspecting bureaucrats for say 15-20 years waiting for the right moment to tear down the wall. No gray ponytails, no earrings or Grateful Dead tattoos among us. We’ve heard of Anonymous in the same way we’ve heard of Lady Gaga but don’t know either well.
We’re made. We’re made by what the government does, and what we witness. If government did what the founders expected it to do– public service– we would not be here, like the mushrooms that don’t pop up on the lawn. Unfortunately, it’ll be awhile before that happens.
The thing is, there should be more of us and not simply for the cheap reveal that the government does lots of naughty things. It probably does, but the reasons why there should be more whistleblowers is because so much of what we see is seen by so many. You have a right to know how your tax money is being spent. To allow more people to stand up and tell the public what is really going on inside government, whistleblowers need to be protected. There need to be meaningful protections for conscientious truth tellers in government. Otherwise you– the people– will know less and less about what your government really does behind closed doors, just the way the government would like things to be. Nice and quiet, nothing to see here, move along and enjoy your Hulu.
That is where this Open Letter from whistleblowers on the WPEA comes in. While Congress has provided credible rights for private sector whistleblowers, rights for government workers are weak.
If you’d like to learn more about or donate to organizations that work to protect whistleblowers, both the Government Accountability Project (GAP) and the Project on Government Oversight (POGO) are excellent places. I personally owe much to both groups for protecting me. While GAP and POGO support this letter, it is organized by whistleblowers Evy Brown and David Pardo.
Bonus: Since I published the letter above, US Marine Corps whistleblower Franz Gayl has also signed.
The Project for Government Oversight (POGO) details the Whistleblower Protection Enhancement Act that the Senate passed for the fourth time. It is now up to the House to take a break from worrying about dudes getting married and renaming Post Offices and step up.
The bill (S. 743) grants federal workers the protections they need to safely report waste, fraud and abuse. Which is good news because taxpayers, who rely on whistleblowers to disclose corruption within the government, are now one step closer towards saving billions of dollars. If people inside the government don’t tell you the taxpayers what is going on, how will you know? Always important to a democracy that depends on an informed citizenry, in the current age of over-classification, whistleblowers are even more important.
POGO tells us:
To put the bill in real-world terms: it could help prevent scandals like the General Services Administration (GSA) lavish spending binge, help protect important national whistleblowers—like Peter Van Buren and Mike Helms—and encourage would-be whistleblowers to step forward in the public interest.
The bill’s significance is clear. It modernizes the Whistleblower Protection Act of 1989 by expanding “free speech rights, specifically covering national security and intelligence community workers, federal scientists, and Transportation Security Administration officers. The bill also will strengthen failed procedures, close loopholes, create efficiencies, and affirm lawful disclosures. For the first time, some federal whistleblowers would have a real ‘day in court,’ since the bill provides access to a jury trial in federal district court,” according to a press release by POGO and allies.
Read more on the POGO website.
My thanks to Ryan, who I don’t know and have never met, for putting together this inspiring video making clear the difference between being a government drone and pretending your oath of allegiance is to some political boss, and standing up for the fact that the oath is to the Constitution.
There is a difference between obedience to authority, which is required in an autocracy above all else, and loyalty to one’s Oath, which is required of patriots.
Watch it now:
(If the video is not embedded above, see it on YouTube)
Thank you for coming in Mr. Van Buren. Image Consultants, Inc. was founded to assist people in your situation, so you’ve come to the right place.
To begin, we think that you’ve lost touch with your true narrative. You need to get back in touch with what your core story is all about. We understand the temptations—the Playgirl photo shoot was probably a fun tie-in to your blog pieces, but in the end things like that just hurt you. You can’t turn against the very people who read your blog. Yes, yes, I know God made you that way, but hanging it out in public isn’t where you want to be right now. Sometimes it is OK to not say everything that is in your head. Maybe, quite often it is OK. Try an avoid the obvious train wrecks, yes?
I think however you do need to reconsider the State Department’s offer. After all, you’ve spent a good portion of your adult life there, and working for Alec Ross is not a bad career move at this stage. Yes, we know it would be as his “Special Assistant Valet” responsible primarily for dispensing hair gel, but a year or two isn’t that long in a hardship assignment like that, and look how well your last hardship tour turned out for you! We’ve heard he usually lets his assistants watch him review the Tweet drafts sent up to him by his writing staff, so that is a bonus.
Now, looking ahead, we’ve run some numbers. Your book has sold well among your extended family, with some decent sales in the Ikea niche market. Apparently the cover art colors pairs well with their Speigleflugfluf collection and people have been buying multiple copies to decoratively fill up their shelves. Our research suggests if you can cut about 40 pages from the next edition you’ll increase sales to Ikea by 10-15%, assuming no color changes to the cover of course. Turns out it won’t matter which 40 pages you cut, so we’ll recommend taking out the parts that aren’t funny. That shouldn’t be too hard, yes?
Looking ahead, let’s sift through some of the offers. I see you’ve taken our advice and stopped returning calls to Lindsey Lohan, good. Assuming you do not go with the Alec Ross gig, we feel the offer from Trader Joe’s is probably your best bet. They are ready to give up on the no blogging rule as long as you avoid talking about competitor’s prices and you do get the free Hawaiian shirt to wear at work plus the employee discount. That other offer—whistleblower at NBA games—seems sexy and cool but our polling says the $8 an hour you’ll make at Trader Joe’s will eclipse your book earnings after only two days. Kind of a sure thing.
Anyway, I know you have to run to put in some telework OT, but think it over and we’ll talk more. We’ve got the Gingrich account coming in for a makeover any minute now…
Read more about the State Department seeking to fire me:
If you’d like to help, here are some ways you can help.
(This article by William Astore originally appeared on Huffington Post)
When you dare speak truth to power, the reality is that power already knows the truth, doesn’t want you to share it, and will punish you for your trouble.
That’s the clear lesson from the State Department’s persecution of Peter Van Buren, who dared to tell the American people about the failures of Iraq reconstruction in his book We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People (2011). His “crime” was his unflattering portrayal of misguided and mismanaged U.S. projects in Iraq, from American books translated into Arabic that were never read to a high-tech chicken factory that never worked to sewerage systems that grew worse rather than better despite infusions of machinery and countless millions of dollars.
Van Buren deserves a commendation for his honesty. A true servant of the American people, his cautionary (and often wryly amusing) tale should teach us that so-called nation-building efforts are difficult to implement and even more difficult to sustain. Even more: the resource-intensive, high-tech approach of U.S. government officials and private contractors is rarely well-suited for places like Iraq and Afghanistan, whose resource- and knowledge-base is less well developed, at least by American standards. Approaches that work, Van Buren suggests, are those that are better tuned to engaging and empowering the locals within specific cultural settings, an approach rarely followed by American “experts” and corporations, eager as the latter were to make a buck while trying to show quick results.
My own experience with winning the hearts and minds of Iraqis was limited but illustrative of Van Buren’s conclusions. Back in 2004, an American official in Iraq contacted the Defense Language Institute in Monterey, California, where I then worked, for help in translating a Peter, Paul and Mary song about tolerance. The idea was that Iraqi schoolchildren could be inculcated with a love of diversity, or at least a tolerance of the same, if they were taught the lyrics to this song. We engaged our Arabic translators, who quickly advised us that the lyrics to this touchy-feely American song would likely baffle Iraqi schoolchildren even when translated into Arabic. The American official at the other end of our conference call was very disappointed to hear that her bright idea to promote tolerance in Iraqi schools by translating feel-good anthems to diversity was a cultural non-starter.
A great strength of Van Buren’s account is to show how we Americans delude ourselves into believing that our approach and our culture can be grafted successfully onto Iraqi and Afghan situations. Intentions may often be good but results are mixed at best because U.S. providers want to show rapid progress even as they’re encouraged to allocate resources as quickly as possible (often a formidable task, given the bureaucratic red tape involved). Can-do spirit is frustrated by the realities of contractor and indigenous greed, cultural differences, and the short-term mentality of American managers who rarely occupy the same position for more than a few months.
Van Buren explains to us why the dedicated efforts of individuals like himself made so little difference in Iraq. His is a cautionary tale of waste, mismanagement, and hubris, one that should serve to discourage (or at least to inform) current efforts in Afghanistan.
It’s not that our government doesn’t want to hear that message; the powerful already know how much we’ve bungled these “reconstruction” efforts. It’s that they don’t want you the American people to know how much they’ve bungled these efforts.
Van Buren shines a light in places that many would prefer to remain dark. And that, sadly, is rarely rewarded, even less so today in an administration that’s determined to silence whistleblowers from all quarters.
The House Subcommittee on Capital Markets and Government-Sponsored Enterprises passed a bill that severely weakens protection for corporate whistleblowers. The bill requires the whistleblower to confront the company in question first before going to a regulatory agency. Then the agency would notify the entity being accused of wrong-doing before any enforcement action is taken. Also it would legalize retaliation by the company against the whistle blowing employee. I joined RT.com to take a closer look at the rights of whistleblowers and how they’ve changed through the years.
(Follow this link if the video is not embedded above).
The Government Accountability Project has a new article up about my problems with my security clearance, suspended by the State Department in retaliation for a link on this blog to a document on a Wikileaks site.
The author writes:
Peter Van Buren is the latest casualty of this punitive trend. The government suspended his top-secret security clearance – which he has held for 23 years – over LINKING (not LEAKING) to a WikiLeaks document on his blog and . . . surprise, surprise . . . publishing a book critical of the government.
As a whistleblower attorney, this has happened to numerous clients who have held security clearances for decades, are just a few years away from retirement, but dare to say something critical of the government. Not only do they lose their pension, but the loss of their security clearance renders them unemployed and unemployable in the intelligence community.
Like with Thomas Drake, Bill Binney, Kirk Wiebe, Franz Gayl, and numerous GAP clients, these life-long public servants have had their security clearances suspended. Not necessarily revoked (because if its revoked, that can be challenged through federal court), but suspended, so that the action cannot be challenged.
So these folks who have been in possession of security clearances for decades suddenly “raise serious security concerns” because they criticize the government.
Read the whole article at the Government Accountability Project.