National Security Whistleblowers: To Be or Not To Be

Well, the first thing that I want to state
is where I’m coming from, because this topic,

for one thing, to do in 11 minutes is virtually
impossible, so I’m going to try and give

you kind of a 30,000 foot perspective, give
you a little bit to think about. The work

that I do down in D.C. and across, really,
the world is not only to represent whistle-blowers,

which is a topic that many people don’t
fully understand, but to represent national

security whistle-blowers, which have their
own sub-context, and then people who work,

just as an employment situation at the CIA,
the Defense Intelligence Agency, the National

Security Agency, and all these 3 letter agencies
you hear about and you watch in movies. These

are people whose affiliation at times to the
US Government is a classified secret. That

the work they do in other countries, if they
were caught, they wouldn’t be simply determined

to be persona non grata and deported. They
would be captured, tried, and possibly executed,

so the information that surrounds their activities
can be significantly crucial, important, and

dangerous. So what’s a whistle-blower? You
know, in the general sense, at least by law,

someone who’s going to disclose fraud, waste,
abuse, gross mismanagement, unlawful activity.

In the context of a national security whistle-blower,
that very information may be classified, and

the world that they live in is very compartmentalized.
Someone in office one is working on an operation.

So is someone in office two and they have
no idea what the other is doing? They have

pieces of this mosaic puzzle. So when you
follow through in deciding to become a whistle-blower,

the ramifications for what you do can be incredibly
serious. So when a regular whistle-blower

discloses information and it shows up on the
Washington Post, the New York Times, the Democrat

& Chronicle, they can publicly appear. They
can talk. They may be subject to retaliation,

as many whistle-blowers are. They may suffer
repercussions at work. But generally speaking,

what they do is not going to necessarily put
others lives in danger. Whistle-blowers, to

be one legally, they have to follow a certain
process. Now, for most of you, that probably

doesn’t mean very much. You can look at
an individual case and you go, “they’re

a whistle-blower,” in your mind. But legally
they’re not, because they didn’t go through

the process, so they’re not subject to the
protections that might exist under law. And

I’ll say right out, the protections are
inadequate. Especially in the national security

field, they’re almost non-existent, which
brings us to Edward Snowden, as my example.

So June of 2013, we first learned of this
twenty nine year-old former systems administrator

for a defense contractor of the national security
agency. He shows up in a hotel in Hong Kong,

China, having disclosed somewhere between
tens of thousands to one point seven million

pages of highly classified information. Information
that is so secret at times that very few people

inside the United States government was even
aware of it. As someone in the intelligence

field, he had signed secrecy non-disclosure
agreements that not only imposed a legal obligation

on him, but a moral obligation, in my view,
because the ramifications of what his decisions

might be not just impact him, but they impact
all of us. And they might not just impact

an individual life, but they impact the national
security interests, the foreign relations,

the public interests that we have as Americans,
and foreigners overseas, who are engaged in

operations with our people. His disclosures
are in two categories primarily. One is the

one that you’ve all heard about, even if
you didn’t want to pay any attention. It

was dominating the news. Domestic surveillance.
Was the United States government collecting,

in particular metadata of all of our phone
calls, and storing that in their massive computer

systems around the United States? Now metadata,
if you remember from when we used to have

cell phone bills, years ago, that actually
documented who we called, and when, for how

long because they wanted to charge us for
the time. Now you get a master plan. Nobody

cares who you call. But all that data is collected
by a third party. AT&T, Verizon, T-Mobile,

whoever. And the US government was collecting
it from those companies. Now you can do a

lot with metadata, for sure. And some here
may find that very disturbing. Some might

not. So far, one court has found it to be
an unconstitutional collection, without warrants,

without permission from a federal court. Others,
about five or six now have decided that it

was a constitutional collection, but it’s
a very major topic, that he revealed as a

potential whistle-blower, not going through
the system though. Not complaining up his

chain of command. Not going to an inspector
general office. Not going to the congress.

Not going to a court of law. Instead, he went
to several journalists, who, right or wrong,

have a certain ideological bent to their own
agenda. The second category of information

is offensive intelligence operations that
the US government was conducting overseas.

Engaging in espionage. That’s what they
do. That’s what the NSA does. It’s what

the CIA does. It’s what is legal under our
law. It might be illegal in the country they’re

engaged in. That’s, again, what espionage
is all about. They’re doing it to us. We’re

doing it to them. You may not like that. You
may think it’s what we do. One thing that

came out for example was that we were surveilling
and intercepting phone calls of the German

Chancellor Angela Merkel. Now, you may think
that’s a pretty stupid thing to do. It’s

definitely a questionable policy concern because
they’re an ally. You’re not supposed to

be spying on your friends, right? Is that
an issue for whistle-blowing? Is there anything

illegal about that? Is there anything that
is fraudulent or abusive or wasteful? It’s

a policy issue, and you might not like it,
but that’s what our leaders are supposed

to be deciding. What is best at that level
in determining for example, whether or not

we were going to be able to engage in operations
in Iraq and Afghanistan and use military bases

that we have in Germany, because the German
population wasn’t in favor of it, so we

wanted to know what the German government
was going to do. There are intelligence operational

issues that come into play with these types
of disclosures and these types of surveillances.

There was an article just came out last week
in The Intercept. Laura Poitrace, who just

did a film on Ed Snowden has been released,
which some of you may go and see. And it talks

about human intelligence, what we call “Hu
mint.” People on the ground in several countries

including Germany, South Korea, and the Republic
of China, and that these individuals working

for our government are engaged in offensive
operations in those countries to gather intelligence

for whatever purpose it was, mostly involved
with computers and hacking. Anything illegal

about that? Anything wasteful, fraudulent?
Anything that goes against what we’re supposed

to be doing? Now again from an ideological
standpoint, you might think so. But to reveal

human agents, sources, operatives who are
engaged in companies and governments overseas,

to me, is a level of irresponsibility that
can’t be accepted. There are notions where

when you are a national security whistle-blower
you are going to make judgment decisions,

and you have to do so with not only this legal
authority, but this moral authority. Now the

question comes, what can one do? He has legitimate
questions. We all do on these programs. What

do you do as a national security whistle-blower
when you can’t go and tell anybody? You

can’t even go and tell your spouse, your
family members what you’re engaged in. So,

for Snowden, what could he have done? He says
he talked to superiors within his company.

He might have. We don’t have any proof of
it. We’ll take him for his word. It wouldn’t

of done anything. I’ll grant you that. It’s
a defense contractor. They’re more engaged

with their contract with the government. There
were some emails released of his communications

with the inspector general and the general
counsel’s office of the NSA. They were very

bland. They only asked some perfunctory questions.
They sent some answers back and that was it.

He could have gone to other Inspector General
Offices within the US Government. The Office

of the Director of National Intelligence,
ODNI. The Defense Department. He could have

gone to the Intelligence Committees that have
oversight jurisdiction over the NSA. On the

house side and the senate side, which were
created in the aftermath of Watergate, and

the abuses that occurred in the 1960s, 50’s
60’s out of McCarthy era, in particular?

He could have gone to individual members of
Congress. We saw when the disclosures came

about, Senator Rand Paul, in fact, has sued
the United States government to challenge

the domestic surveillance programs. He could
have, in fact, brought a lawsuit in his own

right anonymously, as I’ve done for other
CIA operatives to try and expose the information

without revealing the secrecy aspects of it.
To bring to light questions that the public

can ask about. Now, would these things be
effective? I don’t know. I could never promise

that anything that I could have done, or a
colleague could have done in these types of

contexts, where we as the lawyers are restricted
in what we can do or say because we are bound

by our own secrecy non-disclosure agreements
when we have these cases. But I do know that

when you get to a certain stage and you don’t
know everything about what you’re talking

about, that you’ve got to go that extra
mile. You’ve got to seek the advice from

others. You’ve got to try and make and take
every effort you can to do what you can before

you release information that can never be
taken back. Now Snowden said, “I looked

at other whistle blowers and how they were
treated, and they were mistreated.” And

he’s right. They were. The contexts are
a little bit different, but the examples were

still the same. So he did it on his own and
he just released the information. Now again,

going back to the amount of information in
question, tens of thousands of pages to one

point seven million pages. It’s physically
impossible for him to have actually read through

what he stole, and he gives it to these journalists,
and in fact the journalists say, and he says,

“I haven’t disclosed any classified information”.
“I have not written about it.” I gave

it to the journalists and I asked them to
decide what they think should be released.”

Well that’s like giving a loaded weapon
to a child and saying, “I wasn’t the one

who fired it. It was a decision of the child.”
Now these are individuals who have no background

in intelligence or national security. Doesn’t
mean the stories aren’t newsworthy. Of course

they are. Doesn’t mean that maybe we have
a right to know as the public. In fact, we

do. And the public debate that’s happened
since has been very enlightening, and is that

type of debate that will keep us in ensuring
that the government doesn’t conduct abuses

that we’ve seen in the past. But the moral
of the story, whenever I talk to anyone who

comes to me as a national security whistle
blower, is responsibility. It’s not just

to you and your own principles, whatever they
might be. It’s to all of us, as well. And

what you do, what you advocate may have such
profound impact, negative or positive, that

you have to think twice. Thank you.