NSA leaker Edward Snowden asks a question to Russian President Vladimir Putin during a televised session, on April 17, 2014.

NSA leaker Edward Snowden asks a question to Russian President Vladimir Putin during a televised session, on April 17, 2014. Pavel Golovkin/AP

Want to Be the Next Intelligence Whistleblower? You May Want to Wait

Even the director of national intelligence admits there are inadequate safeguards for officials who want to bring attention to wrongdoing. By Conor Friedersdorf

Imagine a CIA agent who witnessed behavior that violated the Constitution, the law, and core human-rights protections, like torturing a prisoner. What would we have her do? Government officials say that there are internal channels in place to protect whistleblowers and that intelligence employees with security clearances have a moral obligation to refrain from airing complaints publicly via the press.

In contrast, whistleblowers like Daniel Ellsberg, Chelsea, Manning and Edward Snowden—as well as journalistic entities like the Washington PostThe Guardian, and the New York Times—believe that questionable behavior by intelligence agencies should sometimes be exposed, even when classified, partly because internal whistleblower channels are demonstrably inadequate.

Reasonable people can disagree about whether a particular leak advances the public interest. There is always a moral obligation to keep some secrets (e.g., the names of undercover agents in North Korea). But if official channels afford little protection to those who report serious wrongdoing, or fail to remedy egregiously unlawful behavior, the case for working within the system rather than going to the press falls apart.* As Hilary Bok, writing as Hilzoy, pointed out in 2008, while defending a Bush-era whistleblower:

It is generally better for all concerned if whistle-blowers operate within the system, and it is dangerous when people freelance. But there's one big exception to this rule: when the system has itself been corrupted. When you're operating within a system in which whistle-blowers' concerns are not addressed—where the likelihood that any complaint you make within the system will be addressed is near zero, while the likelihood that you will be targeted for reprisals is high—then no sane person who is motivated by a desire to have his or her concern addressed will work within that system. That means that if ... you want whistleblowers to work within the system, you need to ensure that that system actually works.

Today, there is no credible argument that internal channels offer adequate protection to whistleblowers or remedy most serious misdeeds. U.S. officials claim otherwise. They know that no American system of official secrets can be legitimate if it serves to hide behavior that violates the Constitution, the law, or the inalienable rights articulated in the Declaration of Independence. 

That they defend the status quo without being laughed out of public life is a testament to public ignorance. Most Americans haven't read the stories of Jesselyn RadackThomas Drake, or John Kiriakou; they're unaware of the Espionage Act's sordid history and its unprecedented use by the Obama administration; they don't realize the scale of lawbreaking under President Bush, or that President Obama's failure to prosecute an official torture program actually violates the law; and they're informed by a press that treats officials who get caught lying and misleading (e.g., James Clapper and Keith Alexander) as if they're credible.

Still, every month, more evidence of the national-security state's legitimacy problem comes to light. McClatchy Newspapers reports on the latest illustration that whistleblowers have woefully inadequate protection under current policy and practice:

The CIA obtained a confidential email to Congress about alleged whistleblower retaliation related to the Senate’s classified report on the agency’s harsh interrogation program, triggering fears that the CIA has been intercepting the communications of officials who handle whistleblower cases. The CIA got hold of the legally protected email and other unspecified communications between whistleblower officials and lawmakers this spring, people familiar with the matter told McClatchy. It’s unclear how the agency obtained the material.

At the time, the CIA was embroiled in a furious behind-the-scenes battle with the Senate Intelligence Committee over the panel’s investigation of the agency’s interrogation program, including accusations that the CIA illegally monitored computers used in the five-year probe. The CIA has denied the charges. The email controversy points to holes in the intelligence community’s whistleblower protection systems and raises fresh questions about the extent to which intelligence agencies can elude congressional oversight. The email related to allegations that the agency’s inspector general, David Buckley, failed to properly investigate CIA retaliation against an agency official who cooperated in the committee’s probe, said the knowledgeable people, who asked not to be further identified because of the sensitivity of the matter.

Today's CIA employees have witnessed torturing colleagues in the agency get away with their crimes. They've watched Kiriakou go to jail after objecting to torture. Now, in the unlikely event that they weren't previously aware of it, they've been put on notice that if they engage in whistleblowing through internal channels, during the course of a Senate investigation into past illegal behavior by the CIA, even then the protections theoretically owed them are little more than an illusion. Some in Congress have expressed understandable concern. Director of National Intelligence Clapperresponded in a letter stating, "the Inspector General of the Intelligence Community ... is currently examining the potential for internal controls that would ensure whistleblower-related communications remain confidential."

In other words, there aren't adequate safeguards right now. This is partly because not enough legislators care about or even know enough to understand the problem. And it is partly because the problem starts right at the top, with Obama and his predecessor. As Marcy Wheeler persuasively argues, the CIA gains significant leverage over the executive branch every time it breaks the law together:

-Torture was authorized by a Presidential Finding—a fact Obama has already gone to extraordinary lengths to hide

-CIA has implied that its actions got sanction from that Finding, not the shoddy OLC memos or even the limits placed in those memos, and so the only measure of legality is President Bush’s (and the Presidency generally) continued approval of them

-CIA helped the (Obama) White House withhold documents implicating the White House from the Senate

Wheeler adds, "This is, I imagine, how Presidential Findings are supposed to work: by implicating both parties in outright crimes, it builds mutual complicity. And Obama’s claimed opposition to torture doesn’t offer him an out, because within days of his inauguration, CIA was killing civilians in Presidentially authorized drone strikes that clearly violate international law." Obama is similarly implicated in spying that violates the Fourth Amendment. When illegal behavior is endorsed by the president himself, when there is no penalty for blatantly lying to Congress about that behavior, how can internal channels prompt reform? 

The public airing of classified information over national0security state objections has been indispensable in bygone instances like the Pentagon Papers, the Church Committee report (back when Congress was doing its job), and the heroic burglary of the COINTELPRO documents. I believe history will judge Manning and Snowden as wrongly persecuted patriots, like Ellsberg. The notion that they should've raised their concerns internally won't be taken seriously, because a dispassionate look at the evidence points to a single conclusion: The United States neither adequately protects whistleblowers nor keeps lawbreaking national-security agencies accountable through internal channels. The next time a leak occurs, the national-security state's defenders should blame themselves for failing to bring about a system that can adequately police itself. If their historical and recent track record weren't so dismal they'd have a better case to make.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.