Bravehearts Page 14

  Snowden has often said that he hopes to return to the United States someday. Indeed, he would come back tomorrow, if he thought he could get a fair trial. But that door seems closed. Indeed, Daniel Ellsberg told the young whistle-blower during a visit to Moscow in summer 2015 that he might not ever see home again. “I do not think he will ever be able to come back to the United States no matter how popular he might come to be, and I think there is much more support for him month by month as people come to realize how little substance in the charges that he caused harm to us,” Ellsberg told the Guardian in London on his way to see Snowden. “But that does not mean the intelligence community will ever forgive him for having exposed what they were doing. I don’t think any president will find it politic to confront the intelligence community by pardoning him or allowing him to come back.”

  The official US position is clear and all but unanimous on the part of Republicans and Democrats alike: Snowden broke the law, he should come home, be put on trial, and sent to prison. To be sure, most officials didn’t put it that bluntly; Hillary Clinton said during the first Democratic presidential debate of the 2016 campaign that Snowden should “face the music.”

  What went unstated was that this music, legally speaking, was rigged against Snowden. And not just Snowden: any whistle-blower in the national security sphere faced the same daunting set of judicial rules.

  At the core of those rules was the fact that US law prohibited national security whistle-blowers from mounting a “public interest defense.” During a trial, Snowden could not utter so much as a syllable about his reasons for doing what he did. He could not explain that he had only leaked top-secret documents in order to alert the American people to violations of their Fourth Amendment rights. He could not argue that he broke one law—the law against disclosing classified information to unauthorized individuals—only to expose the breaking of other laws by senior government officials. He could not, in short, defend his actions by invoking their value to the “public interest.”

  The same legal restrictions confronted Ellsberg after he leaked the Pentagon Papers in 1971. The former US Marine Corps officer wanted to call witnesses at his trial who could testify to the deceptions of US officials about the Vietnam War and the resulting human costs. His lawyers, however, explained that a judge would immediately rule such efforts out of order. The only question before the court would be whether Ellsberg had in fact leaked classified information to unauthorized individuals. If so, the judge would have little or no leeway; the verdict would be guilty.

  Although rarely mentioned in US media coverage, the prohibition against a public interest defense was arguably the most important legal fact confronting Snowden—and for that matter Thomas Drake, Jeffrey Sterling, and other national security whistle-blowers. The only question a court could consider in their cases would be whether these individuals had in fact leaked classified information: yes or no? But Snowden never denied having leaked such information. On the contrary, like Ellsberg before him, Snowden identified himself as the leaker in order to shield his workplace colleagues from suspicion.

  The prohibition against a public interest defense was not without its justifications. If one accepted that a government must have the right to keep certain things secret, to forbid certain actions in the name of the common good, and to require its employees to carry out directives to deliver functioning governance, then a public interest defense could not be absolutely unfettered. Government workers could not decide which laws they obeyed and which they didn’t. No government could carry out its functions and responsibilities under such circumstances. So where to draw the line?

  “We need to strike a balance,” argued Bea Edwards of GAP. “In the post-9/11 era the pendulum swung way too far towards security; the government is concealing things that just don’t need to be concealed. Where the balance should be struck begins with that it should never be a crime to report a crime. If a government or corporation is harming the public and lying about it, a whistleblower should have freedom to report that to the public.

  “What we advocate is a public interest defense,” Edwards added. “If you’re being persecuted, or prosecuted, because you spoke up for the public interest, a whistleblower should be able to defend what he or she did by proving, by some standard, that the exposé was in the public interest.”

  Michael Hayden took an opposing view. He criticized—but misrepresented—the public interest defense as meaning that “It doesn’t really matter that I broke the law. I did a good thing, and I should only be judged on your appreciation of how good a thing I did.” I guess that would be attractive to some people, but if you look at the American history of civil disobedience and you read Thoreau, it only becomes a morally justifiable act if you’re prepared to pay the consequences.

  Meanwhile, returning to the United States would be a dead end for Snowden. The prohibition against mounting a public interest defense would turn the legal proceedings against him into little more than a show trial and ensure his imprisonment. Why volunteer for that? “I expect to continue to live in exile for some time,” he said in September 2015.

  Nevertheless, the legal and emotional difficulties confronting Snowden, including his separation from family, friends, and homeland, were offset by the satisfaction of having accomplished his mission. “I can’t live with my family nowadays,” Snowden said via satellite to a gathering at New York’s New School in February 2015. “I can’t go back to my home…. But it’s incredibly satisfying to be part of something larger than yourself …. And it has had a tremendous impact.”

  “All I wanted was for the public to have a say in how they are governed,” he told Gellman in what the reporter said was the first interview Snowden gave from Russia, published in the Washington Post in December 2013. Gellman listed some of the extraordinary political, business, and judicial developments Snowden had triggered. The “basic structure of the Internet itself is now in question,” Gellman wrote, “as Brazil and members of the European Union consider measures to keep their data away from US territory and US technological giants including Google, Microsoft and Yahoo take extraordinary steps to block the collection of data by their government.” What’s more, the NSA was under legal scrutiny like never before. Ruling on “a lawsuit that could not have gone forward without the disclosures made by Snowden,” Richard Leon, a US District Court judge, described the NSA’s surveillance powers as “almost Orwellian” and said its bulk collection of US domestic telephone records was “probably unconstitutional.”

  The Supreme Court may eventually have to decide this issue, for days after Gellman’s piece appeared, a second federal judge ruled that the surveillance program was constitutional. Echoing the arguments of Michael Hayden, District Judge William Pauley III argued that if the surveillance program had been in place before 9/11, “it would have furnished the missing information” needed to inform authorities that Khalid al-Mihdhar, the San Diego hijacker, was inside the United States.

  Glenn Greenwald claimed an even longer list of accomplishments for Snowden. In his book, No Place To Hide, Greenwald argued that the disclosures he helped Snowden publicize have had effects “far greater, more enduring and more wide-ranging than we ever dreamed possible.” Above all, they had “focused the world’s attention on the dangers of ubiquitous state surveillance and pervasive government secrecy” and “triggered the first global debate about the value of individual privacy in the digital age.” They “changed the way people around the world viewed the reliability of any statements made by US officials” and gave rise to “an ideologically diverse, trans-partisan coalition pushing for meaningful reform of the surveillance state.”

  What about the personal price Snowden paid? Greenwald exulted that Snowden “managed to remain free, outside the grasp of the United States,” and he added that “There is a powerful lesson here for future whistle-blowers: speaking the truth does not have to destroy your life.”

  Snowden himself was less sanguine about this last item, perhaps be
cause he had to live with the choices he made, not merely ponder them in the abstract. “Whistle-blowers,” he said after two years of living in exile, “are elected by circumstance. Nobody self-nominates to be a whistle-blower, because it’s so painful. Your lives are destroyed, regardless of whether you’re right or wrong …. This is not something people sign up for.”

  Should Reporting a Crime Be a Crime?

  Armed with this brief recapitulation of Snowden’s experience, what do you think? Is his example likely to inspire others with inside information to step forward and blow the whistle?

  Put differently, would Snowden’s example inspire you? What if it were you who had inside information about deeply troubling institutional behavior? Knowing what this book has described about what happened to Snowden—and, if you’ve read the earlier chapters, what happened to Ellsberg, Drake and the NSA 4+1, Sterling, John Crane, and a host of other whistle-blowers from both the public and private sectors—would you choose to speak out and face the consequences?

  Consider carefully. It’s a decision that will change your life one way or the other forever.

  If you do blow the whistle, you may bring about important, even life-saving, changes for yourself and your fellow citizens. But there is no guarantee of such a consequential outcome; in fact, the odds are against it. Meanwhile, you will almost certainly face harsh retaliation from the powers that be, risking your career, reputation, and financial and personal well-being. The only thing you can count on is “the satisfaction of knowing you did the right thing,” to repeat what Tom Devine of the Government Accountability Project said earlier in this book.

  On the other hand, if you don’t speak out, you’ll have to live with that as well. You’ll have to live with the knowledge that you knew about something that was dangerous, illegal, or morally questionable, and you chose to remain silent to protect your own hide. That knowledge too imposes a burden, especially if other people end up suffering as a result.

  Ray McGovern, the former CIA officer who witnessed the meeting between Snowden and Thomas Drake in Moscow, has lived with this knowledge for decades. As a young intelligence analyst during the Vietnam War, McGovern was friendly with another analyst, Sam Adams, who had authored a classified report revealing that the true number of enemy troops facing the United States in Vietnam was almost twice as high as the Pentagon was saying. Adams told McGovern that the Pentagon didn’t want the higher number revealed for fear it would undermine the US government’s efforts to portray the war as a success.

  “I thought, Somebody should get that memo and take it to the New York Times,” McGovern told me. “I could have asked Sam to give me a copy. But I didn’t have the courage to do that. I had a mortgage, I had a new posting coming up in Germany, and all the other explanations would-be whistle-blowers have rolling around in their head were rolling around in my head. So what was the result? At the time [of Adams’s memo], there were approximately 25,000 US forces killed and maybe a million Vietnamese. By the end of the war, each of those figures had more than doubled. What bothered Sam and me later was the thought that if we had gone public, the whole left side of the Vietnam memorial wouldn’t be there. That’s a heavy burden to carry around.”

  Such are the moral quandaries and calculations that confront any potential whistle-blower. And there is no one-size-fits-all answer for how to respond. Almost every whistle-blower I’ve known says that you don’t really know how you will react until you find yourself in the actual situation.

  Very few whistle-blowers go looking for trouble. Mostly, they are conscientious employees just doing their jobs until one day, they begin noticing things that don’t seem right. Over time, the improprieties accumulate. They bring the problem to the attention of colleagues, of bosses, but for various reasons, the problem persists. Eventually, the moral quandary arises: one either remains silent about something that is wrong or dangerous, or one speaks out and faces the consequences.

  “I imagine everyone’s experience [on the way to becoming a whistle-blower] is different,” Snowden said. “But for me, there was no single moment. It was seeing a continuing litany of lies from senior officials to Congress—and therefore to the American people—and the realization that Congress … wholly supported the lies, that compelled me to act.”

  Snowden has pronounced himself satisfied with his choice, despite its personal and emotional costs. After all, he accomplished much more than he expected when he first made the decision to speak out. Remember, at that point he feared that the public reaction would be a “collective shrug”—there would be no debate, much less reform, of the surveillance he was exposing. In which case he would have ruined his life for nothing. Obviously, it didn’t work out that way.

  But the key to understanding Snowden’s whistle-blowing is the fact that he came forward despite his fear that little would come of it. Run the movie of his life backwards for a moment, back to the months and days before he leaked top-secret information to the press. At that point, there was no assurance whatsoever that his disclosures would accomplish anything beyond putting a target on his forehead. Snowden spoke out anyway—not because he thought his odds of achieving something were good, but because he felt he had to try, no matter the odds.

  It is this impulse that makes the Edward Snowdens and Daniel Ellsbergs and Thomas Drakes of the world whistle-blowers. To say that they choose not to remain silent isn’t quite right; it’s more accurate to say that they cannot choose to remain silent. They feel compelled to speak out, despite the risks and costs. Their consciences allow them no other course.

  This quality—what I called “moral stubbornness” earlier in this book—simultaneously sets whistle-blowers apart from the rest of us and highlights the vital contribution they make to our collective well-being. Most people in their shoes would look the other way, keep their mouths shut, take the path of least resistance. Afterwards they might rationalize their inaction by assuring themselves that you can’t fight City Hall. Not so with whistle-blowers. They come forward, when most of us won’t, to identify problems that cry out for exposure. They are brave, yes, but more than that, they are self-sacrificing. They do what they do not for themselves but for the common good. And they usually end up paying a steep price.

  For this, we owe whistle-blowers our respect and gratitude. We may or may not agree with the particular secrets a given whistle-blower exposes. But whatever our political leanings, whatever community or country we inhabit, we all benefit from the ecumenical willingness of members of the whistle-blower tribe to reveal things that otherwise would be kept hidden.

  “With the ‘watchdogs’ in Congress now cheerleaders for the intelligence agencies rather than guardians of the public interest, and the [Foreign Intelligence Surveillance Court] neutered by the FISA Amendments Act, whistle-blowers are really the last best check on the government,” said James Bamford, the author known for his decades of studying the NSA. “They’re a courageous and precious resource.”

  As such, everyone has an interest in ensuring whistle-blowers the right to speak out when necessity compels. Which means, among other things, that whistle-blowers and whistle-blowing must be protected and encouraged. In particular, whistle-blowers need strong, well-enforced laws, responsible media coverage, and steadfast public support.

  Alas, this is far from the situation today. Even in the United States, which on paper boasts the most extensive body of whistle-blower law in the world and relatively few official restrictions on press freedom, the whistle-blower proceeds at his or her peril, as the stories recounted in this book illustrate all too clearly.

  Overseas the problem is, in general, worse. Most countries have no laws explicitly referencing whistle-blowing, leaving would-be truth-tellers judicially naked before the powers that be. The situation is especially challenging in countries ruled by authoritarian governments, where only the bravest of the brave speak out.

  I had the honor some years ago of interviewing one such brave whistle-blower, a former Russian nuclea
r submarine commander named Alexander Nikitin. As I wrote in the Los Angeles Times in September 2000, “Nikitin’s troubles with the authorities began in 1996, when he made world headlines by exposing what he called ‘a Chernobyl in slow motion’—the Russian navy’s reckless dumping of mothballed nuclear submarines in the Barents Sea and Kola Peninsula …. Nikitin included only previously published information in his exposé. Nevertheless, the Federal Security Service, Russia’s recast KGB, charged him with espionage—on the basis of a law written months after he was imprisoned. Nikitin spent 10 months in jail and three years fighting his way through the court system.” He was eventually acquitted by the City Court of St. Petersburg, but the federal authorities weren’t done with him yet. In a maneuver of Kafkaesque absurdity, prosecutors swiftly sought a new trial. On what grounds? Why, because the government had violated Nikitin’s rights the first time it tried to convict him.

  Whistle-blower rights turn out to be an excellent barometer of democratic rights in general. Ensuring the right of individuals to challenge authority is, after all, an acid test of whether a government is accountable to the citizenry as a whole: are government officials above the law or subject to the same rules as everyone else?

  This principle has been recognized by the European Union, at least in regards to countries of the former Soviet bloc. In the wake of the Soviet Union’s collapse, many of those countries wanted to join the EU. One criterion the EU stipulated as part of the entry process was the establishment and strict enforcement of whistle-blower protection laws and regulations.

  Who did the EU hire to help former Soviet-bloc countries write those laws? The Government Accountability Project, of course. Tom Devine made more than a dozen trips behind the former Iron Curtain to educate and assist legal teams in Slovakia, the Czech Republic, and Serbia as they drafted modern whistle-blower laws. “It’s fulfilling work, to be there at the creation of a new legal system,” said Devine. “Serbia, for example, now has the strongest whistle-blower law in the world,” he added, “significantly stronger than in the United States.”