NATIONAL SECURITY WHISTLEBLOWERS
Pick one of these films to supplement a unit on national security whistleblowers. In each, the people involved talk about why they decided to go public, what they did, and the impact of the government’s response. These films will demonstrate that the complex issues involved in national security whistleblowing, affect flesh and blood people.
SUBJECTS — U.S. 1945 – Current & the Press; the Law; Civics;
SOCIAL-EMOTIONAL LEARNING — Courage;
MORAL-ETHICAL EMPHASIS — Responsibility; Citizenship.
WAR ON WHISTLEBLOWERS: FREE PRESS AND THE NATIONAL SECURITY STATE
Age: 13+; No MPAA Rating (TWM estimates that it would be rated PG-13 for mature themes); Documentary; 2013, 67 minutes; Color. Available from Amazon.com.
THE MOST DANGEROUS MAN IN AMERICA
Age: 13+; No MPAA Rating (TWM estimates that it would be rated PG-13 for some scenes of dead and injured victims of war); Documentary; 2010, 92 minutes; Color. Available from Amazon.com.
Age: 13+; MPAA Rating R for language; Documentary; 2015, 104 minutes; Color. Available from Amazon.com.
Age: 13+; Not Rated (TWM estimates that it would be rated PG-13 for some for mature themes); Documentary; 2014, 102 minutes; Color. Available from Amazon.com.
Note to Teachers:
The role of whistleblower has evolved into an essential institution of modern society. However, employees who come forward to disclose fraud or illegal actions by their employers undertake substantial risks of getting fired or otherwise penalized for their actions. This has been recognized by the federal government and by many states that have enacted statutes or have adopted regulations to protect whistleblowers.
Whistleblowing involves conflicts between contractual and legal obligations to keep silent and what the whistleblower decides is an overriding value or loyalty. These conflicts are most acute when the whistleblower discloses national security secrets. Government employees who come forward with information about illegal government action in national security programs or about fraud and waste in those programs are subject to criminal prosecution, as well as, to dismissal from their jobs or other punitive employment actions. In addition, since the terrorist attacks of September 11, 2001 (“9/11”) national security whistleblowers are being prosecuted with increasing frequency for disclosing information that the government wants to keep from the public.
This Learning Guide provides historical background, discussion questions, and suggested assignments to help raise questions about whether the actions of whistleblowers and the government response were justified. It also contains two unique additional sections: a Basic Framework for discussion of most national security whistleblower situations and a Final Exercise that provides two helpful paradigms for students to use in determining whether blowing the whistle is the right thing to do.
As with many political discussions, a person’s position on national security whistleblowers will depend on his or her general attitude toward government and basic psychological feelings of security or insecurity. These views are often not amenable to logical discourse. Helping students understand the role of such basic attitudes in political debate will allow them to better appreciate their own reactions to many political questions, as well as the positions of others. This Guide contains information and questions to assist teachers in adding this concept to a unit on whistleblowers.
MOVIE WORKSHEETS & STUDENT HANDOUTS
To keep students’ minds on the film and to focus their attention on the lessons to be learned from the movie, go to TWM’s page on Film Study Worksheets for Documentaries and select “Worksheet for a Documentary that Seeks to Persuade on Issues of Political or Social Significance.” Teachers can modify the movie worksheet to fit the needs of each class.
See also TWM’s Historical Fiction in Film Cross-Curricular Homework Project.
The four documentaries present the argument for national security whistleblowers in different ways. Each film will personalize the topic and make it more interesting.
War on Whistleblowers: Free Press and the National Security State includes the story of Franz Gayl, the clearest and most compelling whistleblower story in recent history. It also presents the cases of several other national security whistleblowers.
The Most Dangerous Man in America tells the story of Daniel Ellsberg, the most important whistleblower of the Vietnam War and of the last century. Ellsberg is the model for modern national security whistleblowers.
Citizenfour is a documentary that Ed Snowden arranged to be shot in real time as he made his disclosures. It raises very interesting questions about government surveillance. However, the movie has another fascinating dimension. Snowden knew that his only hope to avoid a long prison term or having to live the rest of his life in exile was a presidential pardon. This movie is part of his effort to build public support for that pardon. Students can actually be part of history being made as Snowden, through the medium of the film, reaches out to them saying, in effect, “I’m turning my life upside down, putting my freedom at risk, and this is why I’m doing it.” This film is especially timely as President Obama’s second term ends and he must make a decision on whether to pardon Snowden. Citizenfour won the Academy Award for Best Documentary in 2015.
Silenced discusses two other compelling whistleblower stories (Thomas Drake and Jesselyn Radack) as well as the ambiguous story of John Kiriakou, the only man prosecuted in relation to the U.S. government’s torture program. (Kiriakou did not participate in the torture of terrorism suspects; his only connection with the torture program was that he was the first CIA official to publicly acknowledge its existence. None of the actual torturers or the people who authorized the torture program were punished, even when they exceeded permissible government guidelines for “enhanced interrogation techniques.”)
Note that each of these documentaries is pro-whistleblower, and teachers may need to point out the arguments against the actions of some of the national security whistleblowers shown in these movies. This Guide will provide some of those arguments.
BENEFITS OF THE MOVIE
Each of these films will supplement a unit on national security whistleblowers by putting faces to the names, highlighting the importance of the issues involved, and showing the impacts of the government’s response on the lives of whistleblowers.
Using this Learning Guide: Students will gain an understanding of the complex issues involved in national security whistleblowing and the government’s response. They will be provided with a framework for evaluating the actions of whistleblowers and two helpful paradigms to use in analyzing whistleblower situations.
Watch the movie with your child and discuss a few points from the Basic Framework.
USING THE MOVIE IN THE CLASSROOM
Before or after showing the film, teachers can provide the information set out below through direct instruction on any of the following topics that are not fully explained in the movie.
- Define “whistleblower” and “metadata.”
- The story of Franz Gayl and the MRAPs. This story shows how valuable whistleblowing can be. (Mr. Gayl’s story is fully presented in The War on Whistleblowers; it is not described in the other movies.)
- The risk that a national security whistleblower will irresponsibly and needlessly compromise national security; Snowden & Manning.
- Selective prosecution and disparate treatment; government sanctioned “leakers” vs. whistleblowers.
- The issues involved in whistleblowing; providing a Basic Framework for analyzing national security whistleblower decisions.
Suggested information to provide to the class on each of the topics is set out below.
Follow the introduction with selected discussion questions (see below) and assignments (see below).
At the conclusion of the unit, the class as a whole should try to come up with a way that national security whistleblowers in the future can evaluate their situation and make a decision about whether to go to the press and the public or to remain silent. See Final Exercise — When is Whistleblowing the Right Thing to Do? Paradigms for Evaluating National Security Situations.
SUGGESTED INTRODUCTION TO THE UNIT
Play for the class the fabulous TED Talk by Margaret Heffernan: The dangers of “willful blindness”. This is 14:39 minutes.
Define the term “whistleblower”:
- “An employee who discloses information that s/he reasonably believes is evidence of illegality, gross waste or fraud, mismanagement, abuse of power, general wrongdoing, or a substantial and specific danger to public health and safety.” — What is a whistleblower? Government Accountability Project;
- ” . . . [O]ne who reveals something covert or who informs against another” — Miriam-Webster online dictionary;
Define the term “metadata”:
“Metadata” provides information about other data. In the context of a telephone call, metadata includes the date, time, number from which the call is made, number to which the call is made, and the length of the call. This information is routinely collected by telephone carriers and is included on many telephone bills.
For a description, from the script of Citizenfour of the potential harm from government surveillance that includes metadata collection, see The Power of NSA Surveillance and Metadata Collection in the sidebar.
Franz Gayl and the MRAPs
Note to Teachers: Mr. Gayl’s story is fully presented only in The War on Whistleblowers. In classes using one of the other movies, teachers can provide the following information through direct instruction.
From 2003 to early 2008, over 60 percent of all American troop deaths in Iraq were the result of Improvised Explosive Devices (IEDs), also called homemade roadside bombs. The main patrol vehicle used by U.S. soldiers and marines at that time was the Humvee. The Humvee had a comparatively low mass and several of its critical parts were made of flammable aluminum. Its flat concave bottom focused blast energy into the vehicle, essentially creating a death trap for soldiers.
Mine Resistant Ambush Protected Vehicles (MRAPs) have V-shaped hulls on a raised chassis with thick armor plating that deflects the force of an IED blast outward. Marines and soldiers riding in MRAPs are ten times more likely to survive and to avoid death or serious injury from an IED explosion than if they are riding in a Humvee. By early 2005 officers in the field were making urgent requests for MRAPs to protect their troops. However, requests for MRAPs were held up in the military bureaucracy for 19 months during the height of the Iraqi insurgency because they competed for funding against programs favored by the Defense Department bureaucracy, including requests for more Humvees. Had MRAPs been available to U.S. troops, they would have prevented hundreds of GI deaths and thousands of maiming injuries.
Franz Gayl is an honorably discharged Marine. He later came back to work for the Marine Corps as a civilian evaluating weapons systems. In 2006, Gayl discovered why delivery of the MRAPs had been delayed and went up the Marine Corps chain of command all the way to the Office of the Secretary of Defense (he was denied access to the highest levels). At every step, he was told that the MRAP program was not a priority and that the Marines in the field would have to wait. Meanwhile, Marines and soldiers were dying and being maimed while riding in Humvees that triggered IEDs.
Finally, Gayl went to the press and to Congress. After Gayl went public, Senators Joe Biden, Democrat from Delaware, and Kit Bond, Republican from Missouri, among others, pressured the Pentagon to make the MRAP program a priority. Suddenly, the Defense Department embarked on a massive procurement program to get MRAPs to the troops as soon as possible. According to Defense Secretary Bob Gates, the MRAP program saved the lives of thousands of U.S. soldiers.
Two months after the start of the emergency MRAP procurement program, the Marine Corps reprimanded Gayl for speaking out, lowered his once-stellar performance evaluations, and revoked his security clearance. This essentially prevented Mr. Gayl from fulfilling his duties. He was also subjected to at least two investigations. The Corps even tried to indefinitely suspend him without pay. After a long and arduous battle during which Gayl received assistance from the Government Accountability Project, a nonprofit law firm that helps whistleblowers, a settlement was reached. Gayl was able to regain his security clearance and resume his old duties. As part of the settlement, Gayl became an adviser to the government on whistleblower policy.
Have Whistleblowers Compromised National Security?
The government contends that national security whistleblowers disclose secrets that must be kept in order to protect U.S. interests at home and abroad. The cases of two recent whistleblowers, Ed Snowden and Chelsea Manning, will help students understand some of the issues involved in whistleblowing.
Ed Snowden was a high-level security analyst assigned to the NSA. In this work, he discovered several programs through which the government was collecting metadata information on millions of U.S. citizens. Snowden believed that these programs were illegal. However, in 2013 the Director of National Intelligence, Jim Clapper, testified to Congress that the government did not “wittingly” collect this type of information on millions of Americans. Snowden knew that this testimony was untrue and decided to risk his liberty and doom his career by taking government documents and submitting them to a team of responsible journalists. The journalist promised that before they published the documents, they would remove information that could lead to the injury or death of U.S. soldiers or intelligence agents. The journalists then published the vetted documents demonstrating, for example, that the government was engaging in metadata collection of information about the phone calls of more than a hundred million American citizens. (After Snowden’s disclosures, Clapper claimed that he had merely forgotten these programs when he testified to Congress.)
The government has charged Snowden with several felonies, principally under the World War I-era Espionage Act. That law prohibits the sharing or dissemination of “national defense information” and was intended to be used against spies, not whistleblowers. However, the statute makes no distinction between leaks to the press in the public interest and sending national security secrets to a foreign spymaster. Nor is it a defense to a charge of violating the Espionage Act that the national defense information that was disclosed should not have been labeled secret in the first place, or that the disclosure revealed a government program that was illegal or unconstitutional, or that the information disclosed showed that high government officials had lied to the public or to Congress, or that the disclosure was in the public interest, or that the disclosure led to reforms. Snowden’s supporters would claim that in any of these common-sense defenses were contained in the law, Snowden would have been able to take advantage of them.
The U.S. government claims that Snowden’s revelations have allowed terrorists to change their methods of communication to avoid detection.
“The Islamic State has also studied revelations from Edward J. Snowden, the former National Security Agency contractor, about how the United States gathers information on militants. The main result is that the group’s top leaders now use couriers or encrypted channels that Western analysts cannot crack to communicate,. . . .” ISIS Leader Takes Steps to Ensure Group’s Survival by Eric Schmitt and Ben Hubbard, New York Times, 7/20/16;
While it is obvious that Snowden’s disclosures have had some negative effects on the efforts of U.S. intelligence, it is also likely that as U.S. counterterrorism efforts produce results, the terrorists will change their methods of communication to avoid detection. For example, since Snowden’s revelations hit the press (June 5, 2013), the government itself has disclosed its intelligence-gathering techniques when it described how its post-Snowden electronic surveillance disrupted a terrorist plot leading to the temporary closure of U.S. embassies in 22 countries. This disclosure resulted in a dramatic change in the way terrorists communicated. (See Qaeda Plot Leak Has Undermined U.S. Intelligence by Eric Schmitt and Michael S. Schmidt, New York Times, 9/29/13). No one has been prosecuted for these disclosures.
Note that there was one incident when Snowden’s method for keeping sensitive intelligence information from the terrorists didn’t work. In 2014, data from the year 2010 relating to an NSA agent in Mosul, Iraq, and his source were, by mistake, not redacted from a document published by the New York Times. When confronted with this, Snowden admitted that mistakes will happen, that this is a risk of making the disclosures, and that this mistake was “on me.”
In addition, Snowden’s disclosures caused embarrassment to the U.S. when, for example, it was revealed that the NSA was listening to the phone conversations of the leaders of U.S. allies such as Germany.
On the other hand, Snowden’s revelations about metadata collection of information from the telephone calls of American citizens gave rise to a heated public debate concerning the legality and appropriateness of these programs. In 2015, in response to that debate, the government stopped collecting metadata on the phone calls of American citizens.
Key to Snowden’s justification for his revelations were false statements to Congress by high government officials denying that the intelligence establishment was conducting metadata surveillance. See False or Misleading Statements to Congress by the Director of Intelligence and the Head of the NSA About the Extend of Government Data Collection in Helpful Background Section. The fact that Snowden’s actions caused a public debate shows that they were of great value to American democracy. The fact that as a result of that debate, the government was forced to change its practices and that it no longer collects metadata on domestic phone calls confirms that value.
The question remains, however, whether the detriment to U.S. intelligence gathering on foreign and domestic threats was worth the benefit to American democracy of: (1) the public knowing the truth about metadata collection; (2) having an informed public discussion about metadata collection; and (3) the termination of the program.
Snowden fled the U.S. to avoid prosecution but was trapped in Russia when the U.S. revoked his passport. For now, Russia has provided Snowden with a safe haven. Snowden has chosen exile rather than return to the U.S. to fight what he and many others consider to be the stacked deck of the Espionage Act charges.
From Russia, through media appearances and interviews, Snowden has tried to continue to participate in the public debate over government surveillance and national security whistleblowers. Snowden has also been honored by several pro-whistleblower groups. Snowden and his supporters are, no doubt, hoping for a presidential pardon before Barak Obama leaves office in January of 2017.
Chelsea Manning – Previously Known As Bradlee Manning – Injury to U.S. Diplomacy
Chelsea Manning, formerly known as Bradlee Manning, was a troubled low-level U.S. intelligence analyst who had access to secret information. Manning was horrified by what she saw occurring in the Afghanistan and Iraq wars and concerned about the connection between large corporations and U.S. diplomacy. She reportedly stated that, “If you had free reign over classified networks . . . and you saw incredible things, awful things . . . things that belonged in the public domain, and not on some server stored in a dark room in Washington D.C. . . . what would you do?”
In 2010 Manning provided Wikileaks with videos of U.S. air strikes in which civilians were killed, as well as 251,287 confidential U.S. diplomatic cables and 482,832 raw Army field reports from the Iraq and Afghan wars. There was immediate concern that such a massive disclosure of sensitive data would be harmful to national security.
Manning was found out, arrested, and court-martialed. After pleading guilty to 10 counts, she was found guilty of 11 more, including violation of the 1917 Espionage Act. However, she was acquitted on the most serious charge of aiding the enemy. This was the only charge which required the government to prove that it was actually harmed by Manning’s actions. Manning is now serving her sentence in a U.S. military prison. Her appeal is pending.
Manning’s document release included confidential U.S. diplomatic cables in which State Department officials were critical of foreign leaders and were shown to be spying on U.N. officials. These revelations embarrassed the U.S. with its allies, other foreign nations, and the U.N. The State Department claimed that Manning’s disclosures had a “chilling effect” on the willingness of foreign officials to talk as freely with U.S. diplomats as they had before. Most of Manning’s disclosures related to matters such as uninvestigated civilian casualties and reports from past battlefields. They included hitherto unreleased photos of the killing of journalists and civilians by a U.S. helicopter crew, evidence of uninvestigated contractor wrongdoing in Afghanistan, uninvestigated reports of torture in Iraq, and information about the role of corporate interests in international diplomacy.
Chelsea Manning has received many awards from whistleblower groups, but she is a very controversial figure due to the fact that her disclosures consisted of a massive data dump of sensitive classified material without any editing to protect intelligence sources. Initially, Wikileaks tried to edit the material Manning had provided to avoid disclosing the names of operatives. However, the U.S. government refused to cooperate and, apparently due to an error, the entire archive was made available on the Internet. It is charged that this information caused immense harm to U.S. diplomacy and that Manning’s revelations showed corruption in Arab countries contributing to the Arab Spring. However, U.S. Defense Secretary Robert Gates said that concerns over the damage caused by the leaks were “significantly overwrought.”
Conclusion: The contrast between Manning’s case and that of Snowden is instructive. Clearly, Snowden showed the terrorists some ways that the U.S. could be spying on them and they could change their tactics accordingly. However, a government panel appointed by President Obama found that there was not a single situation in which metadata had helped foil a terrorist attack. In addition, as plots are foiled and the government announces its victories over terrorist plots, information about its intelligence collection capabilities will be revealed by the government itself. The same criticism cannot be said of Manning’s disclosures which caused only embarrassment to U.S. diplomats. Manning was acquitted of the only charge that required the government to demonstrate that she had harmed national security. However, Snowden’s disclosures brought substantial benefits to U.S. democracy by sparking a national debate over whether the government had overstepped its authority. In addition, the government stopped collecting metadata as a result of that debate. It appears that the benefit from Manning’s disclosures was much less and related to one specific instance of the killing of reporters and to civilian casualties from drone strikes in general. However, it was previously admitted by the government that drone strikes did cause civilian casualties.
National security whistleblowing will usually disclose methods and means of U.S. intelligence, if not in specific ways, then certainly in general ways. The question that the whistleblowers must answer, and that society must answer in judging their actions, is whether the detriment from the disclosures are worth the benefit to the American people from knowing what their government is doing. Answering this question is always problematic because the only people with perfect knowledge of whether national security has been compromised are the terrorists and enemies of the U.S., and they’re not talking about it. The people with the second-best knowledge are the intelligence agencies who have a need to maintain secrecy, a vested interest in playing up the damage caused by national security whistleblowers, and a desire to punish people they consider to be turncoats. For the security agencies to disclose all the damage caused by a national security whistleblower could itself require the disclosure of sensitive secret national security information.
However, in a democracy, voters must make decisions on national security issues with only imperfect knowledge. The role of the public in curbing foreign wars, for example forcing the government to end the Vietnam war, shows that the public’s decision, even without secret information, can be more perceptive and wiser than those of the President and Congress.
Government Sanctioned “Leakers,” Selective Prosecution, and Disparate Treatment:
Supporters of national security whistleblowers point out that “leakers,” government officials who provide secret classified information to the press in the interests of the government or for their own political purposes, act illegally but so long as they act within the penumbra of disclosures permitted by government leaders, they are not prosecuted. Supporters of whistleblowers also point out that even when leakers or others favored by the government are prosecuted in relation to the disclosure of secret government information, they receive more lenient treatment than whistleblowers.
Under U.S. law, prosecutors such as the Attorney General and the various district attorneys have complete discretion about whether or not to charge a person with a crime, in deciding which crimes will be in the indictment, in determining which plea bargain to offer a defendant, and as to what sentence to recommend. When “leakers” and others favored by the government commit crimes, the prosecutors often simply do not charge them or, if they do bring charges, the prosecutors will choose lesser charges, offer lenient plea deals, or recommend probation rather than prison terms. National security whistleblowers claim foul because the government often pursues them with a vengeance.
A good example of high-level officials, who were not prosecuted for revealing secret national security information occurred when the Obama Administration wanted to focus the public’s mind on its triumph in finding and killing Osama bin Laden. The makers of the film Zero Dark Thirty, which was about that event, were given unprecedented access by the government. They were told about a number of previously classified details of the raid. This classified information included the previously secret identity of the Seal Team 6 member who was in charge of planning the mission. This was a classic “leak.” It turns out that the leakers were none other than Defense Secretary Leon Panetta and the Defense Department’s top intelligence official. The leakers never faced prosecution for their actions.
Another example of unpunished leaking occurred when NSA officials disclosed that its surveillance of telephone calls between Al-Quaeda leaders had foiled a plot that led to the temporary closure of 22 U.S. embassies. The terrorists immediately started using other means to communicate, and that window onto their activities was lost. It was reported that this leak caused more damage to U.S. intelligence effort than all the documents disclosed by Snowden. See, e.g., Qaeda Plot Leak Has Undermined U.S. Intelligence by Eric Schmitt and Michael S. Schmidt, New York Times, 9/29/13.
Then there was the situation of General David Petraeus. General Petraeus was in charge of the Iraq war at the time of the Sunni insurrection. He performed brilliantly and is credited with important advances for U.S. forces. However, while he was in Iraq, General Petraeus started to have an affair with Paula Broadwell, a reporter certified by the Department of Defense to receive some level of classified information. She was working on a biography of the general and interviewed him for the book. Petraeus gave her his secret diaries which contained a trove of classified information. It violated secrecy regulations for Petraeus to let the diaries go outside of a protected government facility. Some classified information from Petraeus ended up on Broadwell’s computer, and the FBI found it. There was no evidence that Broadwell ever published the classified information or misused it in any way.
Petraeus was not only a general who did an excellent job, but he was also later promoted to be head of the CIA. When the FBI began to investigate the security breach, Petraeus initially denied the charges but later pled guilty to one count of unauthorized removal and retention of classified information. The scandal forced Petraeus to resign from the CIA and leave the government in disgrace. His sentence in the criminal case was probation and a fine. He was allowed to keep his generous military pension.
Even if the prosecutors decide to file charges and gain a conviction, presidents have the absolute power to pardon or to commute sentences. Leakers and others who the government favors have also benefitted from presidential pardons. Whistleblowers, however, are seldom pardoned.
Recent U.S. history has many examples of Presidents granting pardons in controversial cases, but almost never in favor of whistleblowers. For example, President Ford pardoned Richard Nixon who had resigned in disgrace over his criminal conduct in the Watergate scandal. President Regan pardoned six people involved in the Iran-Contra affair which was a conspiracy to sell arms to Iran to provide funds to the Nicaraguan contra rebels in violation of an act of Congress. While there were several prosecutions of officials involved in the conspiracy, no one went to jail for their illegal actions relating to Iran-Contra. (One participant was convicted and sent to jail for the unrelated charge of hiding his income from the deal and not reporting it to the IRS.)
With respect to the disclosure of government secrets, President George Bush used his pardon power to commute the 30-month prison sentence of Scooter Libby, Vice-President Dick Chaney’s chief of staff who was convicted of lying to a grand jury and to the FBI in relation to an investigation of the leak of the identity of clandestine CIA agent Valerie Plame. Apparently, Ms. Plame’s husband had angered the office of the Vice-President when he criticized the selective use of intelligence reports to support the erroneous premise that Saddam Hussein was trying to develop weapons of mass destruction. It was this misconception that the government used to justify its decision to start the ill-fated second Iraq War. See the Supplemental Materials to this Guide for more on the Scooter Libby case.
If the prosecutors or the President felt that Panetta, Libby, and Petraeus had made outstanding contributions to their country, why shouldn’t they be protected or shown some appreciation for their outstanding work? The supporters of whistleblowers respond that whistleblowers too, have provided valuable service to the public, and in addition, have risked being fired and imprisoned for their actions. However, the fact that that prosecutorial and presidential choices may be seen to favor those who have served the national security apparatus of the state means that people who believe that these discretionary powers should also be exercised on behalf of whistleblowers need to work to elect leaders who will be sympathetic to the arguments on behalf of whistleblowers.
Issues Involved in Whistleblowing
Whistleblowing involves a conflict between legal, moral, and social values that require silence and an obligation to a higher value such as morality, the public good, the law, or the Constitution. When the disclosure of state secrets is involved, there are very strong arguments against whistleblowing. The most important is that in almost every situation, whistleblowers don’t know all of the facts and there are people above the whistleblowers who probably know more and who have sanctioned the actions to which the whistleblowers object. The second is that the whistleblowers’ actions could imperil important national security interests, and in some cases, they could put the lives of soldiers or intelligence operatives in danger. Finally, not only have the whistleblowers most likely signed legally binding agreements to keep everything learned while working for the government a secret, there are strong criminal laws prohibiting disclosure of national security information. Violating these laws could send whistleblowers to jail for a very long time. In addition, whistleblowers will be betraying the trust of their employers; they will earn the enmity of all of their coworkers and colleagues.
Click Here, For Additional Helpful Background
Pre-Snowden Disclosure False or Misleading Statements to Congress by the Director of Intelligence and the Director of the NSA About the Extent of Government Data Collection on American Citizens
Ed Snowden made his disclosures in May of 2013. They were first published in early June of that year. Two months before, on March 12, 2013, Sen. Ron Wyden, D-Ore., had questioned National Intelligence Director James Clapper, who was testifying before a Congressional committee.
Senator Wyden: This is for you, Director Clapper, again on the surveillance front, and I hope we can do this in just a yes or no answer because I know Senator Feinstein wants to move on. So, does the NSA collect any type of data at all on millions or hundreds of millions of Americans?
Director Clapper: No, sir.
Senator Wyden: It does not?
Director Clapper: Not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly.
About a year earlier, on March 20, 2012, Congress Member Hank Johnson (D. Georgia) questioned National Security Administration director, General Keith Alexander:
Rep. Johnson: Does the NSA routinely intercept American citizens’ emails?
Gen. Alexander: No.
Rep. Johnson: Does the NSA intercept Americans’ cell phone conversations?
Rep. Johnson: Google searches?
Gen. Alexander:- No.
Rep. Johnson: Text messages? Gen. Alexander: No.
Rep. Johnson: Amazon.com orders?
Gen. Alexander: No.
Rep. Johnson: Bank records?
Gen. Alexander: No.
Rep. Johnson: What judicial consent is required for NSA to intercept communications… and information involving American citizens?
Gen. Alexander: Within the United States, that would be the FBI lead. If it was a foreign actor in the United States, the FBI would still have the lead and could work that with… with NSA or other intelligence agencies as authorized. But to conduct that kind of… of collection in the United States, it would have to go through a court order, and the court would have to authorize it. We are not authorized to do it, nor do we do it.
Neither man was prosecuted for perjury, nor were they fired or demoted or even reprimanded. After Snowden’s revelations, Clapper acknowledged his “mistake” and apologized.
Scooter Libby — A Leaker Who Went Too Far
One leaker who went too far and was prosecuted was Scooter Libby, chief of staff for then Vice-President Dick Chaney. Mr. Libby was prosecuted by an independent Special Counsel in the Justice Department who was not answerable to the Attorney General or to the President. The Special Counsel, Patrick Fitzgerald is known for his integrity and independence.
The background for the incident was the second invasion of Iraq (2003) which had been justified based on faulty intelligence reports that the Iraqis were acquiring or had acquired weapons of mass destruction, such as nuclear bombs. Vice-President Chaney had been a proponent of the faulty intelligence and had strongly advocated for the invasion. The leak apparently occurred when his office wanted to punish a man named Joe Wilson who had criticized President George W. Bush for taking the country to war based on the selective use of intelligence, i.e., crediting only the intelligence that supports an action that the President had already decided he wanted to take.
Mr. Wilson was a respected American diplomat and former ambassador to several small African countries. Before the Iraq war, the CIA had asked Ambassador Wilson to go to the African country of Niger to determine if a claim that Saddam Hussein had tried to obtain uranium for a nuclear bomb was accurate. In 2002, Mr. Wilson had found no evidence of any effort by the Iraqis to purchase uranium from Niger and that the documents supporting this claim had been forged. Later, President Bush, in his January 2003 State of the Union address said, “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.” Mr. Wilson knew that there was also contradictory information, i.e., what he found during his trip to Niger. The fact of Mr. Wilson’s trip to Niger and his findings had been declassified, and Mr. Wilson wrote an opinion article in the New York Times in which he criticized then President Bush for ignoring the intelligence reports, such as his, that contradicted the President’s position. Later, the claim that the Iraqis had been seeking uranium from Africa was withdrawn by the administration as a basis for the invasion. Mr. Wilson also claimed, correctly, that the Vice-President’s office had been advised of the results of his trip to Niger.
It turned out that Mr. Wilson’s wife, a woman named Valerie Plame, was a career clandestine CIA Operative. The identity of CIA clandestine operatives is secret classified information, and it is a felony to disclose or to confirm their identity as spies. Mr. Libby, in his work for the Vice-President, had access to classified information. The Vice-President’s office was apparently angered by Mr. Wilson’s statements, and apparently, in an effort to punish Mr. Wilson, Libby confirmed Ms. Plame’s role with the CIA to several reporters.
When Mr. Fitzgerald was appointed Special Counsel to investigate the leaks that led to the outing of Ms. Plame as a clandestine CIA agent, Mr. Libby lied to the FBI and to a grand jury about what he had said about Ms. Plame. These are also felonies. Libby was prosecuted for the lies and a jury found him guilty on four counts. Sentenced to 30 months in prison, a $250,000 fine, and two years of probation, Libby petitioned President Bush for a pardon. The influential Vice-President, Dick Chaney, strongly supported Libby’s request for executive clemency. However, many in the intelligence community opposed any pardon for Libby because if people involved in outing a CIA agent were not punished, the whole structure of CIA clandestine activities would be put at risk. In other words, it could be said that Mr. Libby had stepped on the toes of the military-industrial-intelligence complex. President Bush accepted Mr. Chaney’s position to a certain extent and granted Libby a commutation of his prison sentence only, leaving in effect the conviction (which meant that Libby would lose his license to practice law), the fine, and the term of probation.
Note that a minor CIA official, John Kiriakou who admitted to one count of confirming the identity of a secret CIA operative was sentenced to 30 months in prison for this crime. Mr. Kiriakou had angered CIA officials because he was the first former CIA agent to confirm that the U.S. government was torturing terrorism suspects. Mr. Kiriakou served 26 months of his sentence and received no pardon or commutation based on his years of service to the CIA.
Many people (including at least one member of the jury that convicted Libby) felt that there were other persons behind the leak, such as Vice-President Chaney or Republican political operative Karl Rove, and that Libby was a fall-guy. Rove and Chaney were never prosecuted.
BASIC FRAMEWORK FOR ANALYZING NATIONAL SECURITY WHISTLEBLOWER DECISIONS
Any discussion of national security whistleblowing should take account of the following points:
1. Basic American political theory holds that government power needs to be constrained or it will be abused: A basic principle of American democracy is that the government, if not restrained, will overstep its bounds and deprive citizens of their rights. This is the reason our government is set up with a separation of powers between the Congress, the Judiciary, and the Executive; it is the reason that we have a Bill of Rights. Since 9/11 the actions of the U.S. government in its secret surveillance programs have demonstrated this principle yet again. The public’s interest in informed popular debate does not simply vanish at the invocation of the words “national security,” “National security is public security, not government security from informed criticism.” Judge J. Harvie Wilkinson concurring in United States v. Morison, 844 F.2d 1057, 1081 (4th Cir.1988).
2. What are the benefits derived from the disclosures? Gayl disclosed that the bureaucracy was getting in the way of a program needed to save the lives of troops. His disclosures caused the Defendant Department to embark on a crash program to put MRAPS in the field, saving thousands of lives. In Snowden’s case, the disclosures sparked a needed national debate on a legally questionable and secret metadata collection program. The debate resulted in a change of government policy. That is a benefit of inestimable value. Snowden also provided value when he demonstrated that a top administration official had made false statements to Congress when he denied the existence of the metadata collection program. There was also value provided by whistleblowers Drake (exposure of government waste when the NSA shut down the Thinthread program in favor of outsourcing a larger and ultimately unsuccessful program wasting a billion dollars), Kiriakou (confirmation of the torture program), Manning (disclosed information about civilian casualties) etc.
3. Will the Disclosure Actually Harm National Security? There are three things to remember about this. First, the ones who really know, the terrorists aren’t telling us. Second, we cannot take on faith the general statements of government officials that the disclosures have led to the release of sensitive national security information. The government will want to overstate the harm to punish the whistleblowers. Third, the problem is that the determination of the extent of damage may require the disclosure of other sensitive national security information and so the public may never be in a situation in which to make an informed decision. In addition, each situation is different and must be judged on its own merits.
4. Factor in Psychological Bias: The balancing of these competing values will depend upon the psychological make-up of each individual. Does the risk of terrorist attack make us feel so insecure that we are willing to give up the right to know what the government is doing and accept the loss of our privacy? The reactions of people to these questions also involve a person’s attitude toward authority. Some people are predisposed to follow authority and don’t question their leaders. Others, including many whistleblowers, are predisposed to challenge authority. Note that the feelings of insecurity, the fear of an overbearing government, the willingness to sacrifice privacy, and attitudes toward authority can be different in the same person for different situations. In addition, the fight against the terrorists is a dynamic struggle and the proper balance one day may not be the proper balance on the next.
People whose psychological makeup is that they feel insecure about terrorist attack will tend to err on the side of security. But that may mean that they will unnecessarily sacrifice their privacy (and the privacy of others) and allow the government to take on new powers which it may abuse. On the other hand, those who are suspicious of government power may try to deprive the government of tools that it legitimately needs to keep the country safe from terrorists, resulting in loss of life. The only way to deal with this situation is for people to try to understand their own natural bias and take it into account, looking for a rational, fact-based, solution.
5. Balancing the Need for Increased Surveillance vs. the Goal of an Open and Inclusive Society: There is clearly a need for increased surveillance of citizens and residents in order to combat terrorism. However, modern democracy should be an open, inclusive, tolerant society in which the government is solicitous of the privacy rights of its citizens and conforms to the rule of law. The question in the case of each national security whistleblower is where to draw the line between the need for government secrecy on the one hand, and the public’s right to know what their government is doing and the individual’s right to privacy on the other.
In this Learning Guide these concepts will be referred to as “the Basic Framework.”
After watching the film, engage the class in a discussion about the movie. Some suggested questions are set out below.
See the Sidebar for specific questions relating to War on Whistleblowers and Citizenfour.
1. [As to any national security whistleblower whose case the class has studied, ask the question:] Is this person a hero or a traitor or something in between? Should he or she be prosecuted, rewarded, or just left alone?
Teachers should guide discussions so that they include the points in the Basic Framework.
2. Should the President pardon Edward Snowden [Bradlee Manning, Jeffrey Sterling, John Kiriakou]? [Teachers: Ask each student in turn to provide an argument or a fact in support of or in opposition to the pardon. As students talk, you may want to summarize the points in a pro/con T chart.]
Teachers should guide discussions so that the students will begin to recognize the facts, arguments, and considerations set out in the Basic Framework.
3. What is meant by the term, “the military-industrial complex?”
It is a loose association of corporations, the military, the CIA, the NSA, and other government agencies with duties relating to homeland security and foreign affairs, persons employed or who expect to be employed by those businesses or agencies, and politicians. All of these people, businesses, and agencies have an economic interest in keeping the country on a partial war footing.
4. What is meant by the term, “the National Security State?” Does it really exist?
It is a government mobilized to seek intelligence on anyone and anything, and that is willing to invade the privacy of its citizens and residents to suppress perceived internal threats. Any doubt about the existence of the national security state must be able to explain the treatment of Laura Poitras who made a film critical of the U.S. war in Iraq and was then searched each time she crossed a U.S. border. She eventually had to relocate temporarily to Germany. As Edward Snowden wrote to her,
For now, know that every border you cross, every purchase you make, every call you dial, every cell phone tower you pass, friend you keep, article you write, site you visit, subject line you type, and packet you route is in the hands of a system whose reach is unlimited, but whose safeguards are not.
This story is told at the beginning of Citizenfour.
5. Private companies like Google and Facebook collect immense amounts of data about our individual interests, likes, and dislikes, political opinions etc. and use that information to make money by helping others sell us products. Answer two questions: a) is privacy an outmoded concept and b) if private companies have this information (and the metadata on our phone calls), why shouldn’t the government?
These are major questions for Western society, and no one has yet come up with a definitive answer. As to a), good responses will include the following concepts: we consent to provide this information by using the Internet and various websites on the Net; however, the Internet is an essential part of modern life, like electricity and roads; one can’t live a modern life without it; also, the invasion of privacy caused by these companies is, at this point fairly minimal; all they do with the information is to create and place advertisements. With respect to b) private companies do not have the power to prosecute and imprison or a history, as governments do, of persecuting people for their beliefs.
6. Compare the actions of a national security whistleblower to the actions of a soldier who disobeys a direct order which he believes to be illegal.
[This question is a preview of the final exercise of this Learning Guide in which students are asked to develop a way to evaluate the actions of national security whistleblowers.] TWM suggests that this is an apt comparison. The problem for both is that they are taking the position that their knowledge of the situation is adequate to make a decision, that their analysis is correct, and that the values that lead them to act are more important than the legal obligations, either to keep the secrets or to obey the order they consider to be unlawful. If they are wrong, both whistleblowers and soldiers who refuse an order they deem unlawful may cause serious damage, and they risk paying a heavy price if those in authority decide to go after them.
7. Compare whistleblowing to the civil disobedience component of non-violent direct action.
[This question is also a preview of the final exercise of this Learning Guide.] They both involve a violation of law. They are both public and out in the open, and most whistleblowers are willing to face the government prosecution and defend themselves in court. Edward Snowden has, so far, accepted exile rather than face prosecution. In that sense, he is not a classic whistleblower.
8. It has been said that one of the goals of a terrorist is to make you different from the person you want to be. This also works on a societal scale: one of the goals of a terrorist is to make a society different than what its people want it to be. What is meant by that?
A major goal of the U.S. and other Western Democracies has been to create open, inclusive, tolerant, and ethical societies governed by the rule of law. To the extent that the government and society mobilize to fight a terrorist threat, those values tend to be sacrificed in order to enhance security.
9. Whistleblowers usually have mixed motives for what they do. Should there be a “purity of motive test” for whistleblowers? One of the arguments often made against whistleblowers is that their motives are selfish and that they don’t act for the public interest but rather for their own personal reasons or for some type of personal gain. Comment on the following statement relating to John Kiriakou who claims that he made his disclosures about the torture program in an attempt to protect the CIA from being singled out for blame when the torture program had been approved by the White House and government lawyers. However, the press played up the interview as the first admission by a former CIA operative that the U.S. had been torturing terror suspects. Also, soon after the interview in which Kiriakou discussed the enhanced interrogation program, ABC News, which had aired the interview, offered Kiriakou a consulting contract worth several thousand dollars a month. In your response, comment on the following passage from an article in a well-respected magazine:
“Which matters more? Kiriakou’s motives and his reliability, or the fact that, however inelegantly, he helped to reveal that a sitting President ordered international crimes? Does the emphasis on the messenger obscure the message? “Whistle-blowers’ motives are often complicated,” Jameel Jaffer, of the A.C.L.U., said. Disclosures that are in the public interest, even if they are made for selfish reasons, deserve protection nonetheless. “The truth is that the New York Times’ motives were also complicated when they published the Pentagon Papers,” Jaffer said. “At the end of the day, without national-security whistle-blowers who are willing to risk their careers, or more, in order to expose government abuses, we really wouldn’t know very much about these extreme policies that were put in place under the last Administration [George W. Bush].” Even if such a leaker deserves sanctions, Jaffer added, a fine or community service is a more appropriate punishment than years in prison.” The Spy Who Said Too Much by Steve Koll, The New Yorker 4/1/13; Mr. Koll is the dean of the Graduate School of Journalism at Columbia University and reports for the New Yorker on issues of intelligence and national security in the United States and abroad.
Motivation should not play a role in the evaluation of a whistleblower because that can always be challenged, drawing attention away from the fact that that whistleblower served the public interest. Intentions are subjective and questioning intentions of whistleblowers opens the door to persecution. The question is whether the disclosure was in the public interest.
10. If the government is doing something that is criminal or that violates the constitutional rights of Americans, are people who carry out these actions also committing a crime or violating the Constitution? Are people who know about the crimes or unconstitutional actions but do nothing to stop them accessories to a crime?
If the people know or have reason to know that the conduct is criminal or against the Constitution, the answer to both questions is, “yes.” But what if they are told by their superiors that the conduct is essential to national security and has been approved at the highest levels? Then the response is much more debatable.
11. The fundamental ethical revelation of the Abrahamic Religions (Judaism, Christianity, and Islam) is the Golden Rule. Similar concepts are also the basis of most other religious and non-religious ethical formulations. How does the Golden Rule relate to whistleblowing?
If the government is committing a crime or violating constitutional rights, or people are committing fraud, waste, or abuse of government office, the public should know about it. If a business is cheating the government or putting harmful products on the market and lying about it, the public should know. A whistleblower would want to know, too. A whistleblower is “loving thy neighbor as thyself;” doing for another what he or she would have them do for him or her. “
12. Would clamping down on whistleblowers make us safer?
See the Basic Framework.
13. Public officials in the U.S. take an oath to uphold the Constitution and laws of the country. The Constitution takes precedence over the laws, and laws that are unconstitutional on their face or as applied are not valid. What does this mean for a whistleblower who, like Snowden, discloses what he thinks to be unconstitutional conduct but in so doing violates the secrecy laws and his agreements to keep the government’s secrets.
The argument is, for example, that since Ed Snowden violated secrecy laws by disclosing the existence of an unconstitutional program that was being hidden from the American people by the government, the application of the secrecy law to Snowden was unconstitutional, and the secrecy law as applied to him was therefore invalid. The government and the courts do not generally interpret the law in this way. They would say that the obligation is to work through the secret channels of the government and that frustration with one’s efforts to get change through normal channels is never adequate to justify disclosure to the public. Obviously, Snowden and those who support national security whistleblowers do not agree.
14. Why was the result in the Franz Gayl case unusual? What does this tell us about the risks of whistleblowing?
Gayl’s case is unusual because he got his job and his security clearance back. The skills of whistleblower are in the business that they betray in favor of the public interest. Thus, after a person has blown the whistle, it’s hard for anyone else in that business or in any other government agency to trust them. Whistleblowing is referred to among reporters as “The sound of professional suicide.” As reporter Eric Lichtwel of the New York Times said, “It’s almost always bad for [the whistleblowers].”
15. [Before asking this question, make sure students know about Watergate and Mark Felt (Deep Throat). See Learning Guide to All the President’s Men. This is a statement by a reporter shown in the film Citizenfour. Is this guy paranoid or are his concerns valid?
One of the first things [that every dictatorship down through the years has needed] to do is try to acquire knowledge of their population. And that’s exactly what these [electronic surveillance] programs do. I see this as the most major threat to our democracies all around the world.
What do you think they’re doing to reporters, those of us that are working directly with the Snowden documents? How do you think they would approach dealing with people like us? You’re on the cast iron cover list. Which means any… any electronic device you use that they can attach to you they’ll record and capture all that data. And what do they do with that data? Trying to figure out what we’re doing? Uh, well, that’s part of it, but the other part for them I think is to find the sources of information you’re getting. So if I have a confidential source who’s giving me information as a whistleblower, and he works within the US government, and he’s concerned about what he perceives as violations of the Constitution, and he gets in touch with me, they… go ahead. From there on, they would nail him and start watching everything he did, and if he started passing data, I’m sure they’d take him off the street. I mean, the way you’d have to do it is like Deep Throat did, right? In the Nixon years. Meet in the basement of a parking garage, physically.
Click Here, For Additional Discussion Questions.
16. Assume that John Kiriakou was seeking some type of personal or private gain when he confirmed the existence of the clandestine CIA operative to a reporter. Confirming the name means that the reporter already knew that the person was a CIA operative from at least one source. However, reporters are trained not to rely on only one source, but to get at least one “confirmation,” a statement from another source that the information is correct. Compare Kiriakou’s case, in which he served most of his 30-month prison term (about four months were knocked off for good behavior) with that of General David Petraeus. While Petraeus was still a general in Iraq, he met Paula Broadwell, a reporter certified by the Department of Defense to receive some level of classified information. She was working on a biography of the general and interviewed him for the book. They had an affair, and he gave her his secret diaries which contained a trove of classified information. It violated regulations for Petraeus to let the diaries go outside of a protected government facility. Some classified information from Petraeus ended up on Broadwell’s computer, and the FBI found it. However, there was no evidence that Broadwell ever published the classified information to which she had access.
Petraeus was not only a general in charge of the war in Iraq, but he was also later promoted to be head of the CIA. When the FBI began to investigate the security breach, Petraeus initially denied the charges but later pled guilty to one count of unauthorized removal and retention of classified information. The scandal forced Petraeus to resign from the CIA and leave the government in disgrace. His sentence in the criminal case was probation and a fine. He was allowed to keep his generous military pension. Broadwell was never prosecuted for possessing classified information.
Comment on Kiriakou’s statement that, “If you are a general and you’re buddies with the president or if you’re the girlfriend of the general, you’re going to get a pass. If you are a nobody you are going to go to jail, on something. Whether it’s on an espionage count or some reduced charge, you’re going to go to jail.”
There is no evidence that either security breach injured the U.S. Clearly, Petraeus suffered some substantial consequences as a result of the scandal, i.e., he had to resign as head of the CIA and suffered the public humiliation of the disclosure of his extra-marital affair, and he was prosecuted for a crime. However, it appears that he received preferential treatment in the criminal proceedings. Strong arguments can be made that his service as a general who had provided invaluable leadership to the U.S. was enough to justify the preferential treatment. In addition, the loss of his high government position and the humiliation of the disclosure of the affair and being a defendant in a criminal case were a substantial additional penalty. The problem with the Kiriakou prosecution was that it seemed to have been in retaliation for his public admission that the CIA had been torturing terror suspects.
An interesting follow-up question is whether Petraeus should have been prosecuted at all. The rule of law, which applies to great men as well as “nobodies” says that he should be prosecuted. However, as a practical matter, why should the U.S. deny itself the services of such an effective public servant over such a relatively small matter? Then again, if Petraeus was not prosecuted for violating the secrecy laws and continued to head the CIA, how could the government have credibly argued that the security laws should be enforced as to anyone?
17. What is the difference between a spy and a whistleblower?
A spy works for a foreign power and is attempting to harm the U.S. A whistleblower acts in public to expose illegal action, fraud, waste, or abuse of power. A spy’s disclosures are secret, a whistleblower’s disclosures are public.
18. What is the difference between an animal rights activist, who infiltrates slaughterhouses and factory farms to take pictures to show the public how the animals are being mistreated, and a whistleblower? Note that the Animal Enterprise Terrorism Act (passed at the behest of lobbyists for the animal agriculture industry) makes these actions illegal and equates them with terrorism.
The only differences are that the investigator is actively seeking information to disclose and that the lobbyists for the animal agriculture industry have convinced Congress to pass laws giving special protections for their industry (to hide what occurs in their feedlots and slaughterhouses). Effectively, there is no ethical difference so long as the disclosures are in the public interest. Certainly knowing about the origins of the food we eat and what goes on in the slaughterhouses are in the public interest.
19. How does the human tendency to shoot the messenger who brings bad news play out in situations of whistleblowers?
Part of the anger felt against whistleblowers is that they are the bearers of news we don’t want to hear.
20. In every whistleblowing case, there were many very good people who went along with the illegality, gross waste, fraud, mismanagement, abuse of power, or dangers to public health and safety without saying or doing anything. What does this say about human nature? What does it say about whistleblowers? What would our society be like without them?
It is a pretty damning view of human nature and it tells us what we have to guard against. How could so many people have kept quiet about the torture program or the illegal surveillance disclosed by Snowden or the gross waste disclosed by Drake? Over the years, hundreds of tobacco company executives must have known about the dangers of tobacco consumption, but they kept quiet. It tells us that whistleblowers are few and far between and must be protected. It tells us that whistleblowing takes the courage to stand up against the group and the power of the government.
21. George Orwell said, “The further a society drifts from truth the more it will hate those who speak it.” Apply that statement to the case of [insert name of a whistleblower].
The answer will depend upon the situation of each whistleblower However, it seems to fit the experiences of whistleblowers Gayl, Kiriakou, Snowden, Manning, Drake, and many others.
22. George Orwell said, “In a time of universal deceit – telling the truth is a revolutionary act.” Apply that statement to the case of [insert name of a whistleblower].
The answer will depend upon the situation of each whistleblower However, it seems to fit the experiences of whistleblowers Gayl, Kiriakou, Snowden, Drake, and many others.
23. Is it true that in a democracy, in most cases, secrecy is the lynchpin of the abuse of power? Defend your response.
A strong response will agree with the statement because in most cases abuse of power is exercised in secret, in the dark.
Note to teachers: Have the class read the following passage:
The only government official who has been prosecuted for a crime relating to the U.S. Government’s program to torture selected terror suspects was the first former government official to publicly confirm the use of waterboarding. His name is John Kiriakou. In the years after 9/11, President Bush authorized the use of a set of specifically described “harsh interrogation tactics,” (torture), such as waterboarding and sleep deprivation. There is a debate about whether these were legal or illegal under U.S. and international law. However, some interrogators went even further and used torture techniques that were not authorized by the government such as “anal feeding.” However, these people were not prosecuted.
John Kiriakou made statements in an interview with ABC News that angered CIA officials because, even though he said he was trying to defend the CIA, he acknowledged the existence of the torture program. Prior to that time, the existence of the torture program had already been reported but it had never been confirmed by a current or former government official. Kiriakou, as a retired CIA agent, was seeking employment as a consultant and was later employed by ABC News.
Kiriakou was charged with five felony counts: three for communications with reporters relating primarily to the identity of CIA operatives, and two for allegedly making misleading statements to the C.I.A.’s Publications Review Board while seeking clearance to publish his memoir. No charge was made against him for confirming the existence of the torture program. As the government’s case on most of the charges against Kiriakou collapsed, it offered him a deal to plead guilty to one charge of confirming the identity of the CIA operative to a reporter. Kiriakou admits that he made a mistake in revealing this information. Unable to continue to pay for the costs of his defense, Kiriakou took the deal and was sentenced to 30 months in prison. He served his sentence and has now been released.
24. What lesson can you learn from this about the rule of law and the influence of the “National Security State?”
Responses will vary. Strong responses will point out that the CIA believed that Kiriakou acted against the interests of the “National Security State,” while the torturers acted for its benefit and were never prosecuted although their crimes were much worse offenses than that of Kiriakou. However, Kiriakou did violate the law. Should he get a pass just because in an interview, he had confirmed the allegations that there was a government program of torture? However, this begs the question of selective prosecution, that is, whether the government should have prosecuted him when it didn’t go after the torturers whose crimes were worse even if their victims were not very sympathetic people. Generally, high-level officials get pardons, light sentences, or there is no prosecution if they violate the law. See the cases of: David Petraeus (fine and probation for removing secret material and giving it to his girlfriend, a reporter working on his biography); Caspar Weinberger (former secretary of defense, charged with perjury and obstruction of justice in the Iran Contra scandal); Mark Felt (former second in command of the FBI) convicted of violating the civil rights of people thought to be associated with members of the Weather Underground Organization, by ordering FBI agents to search their homes as part of an attempt to prevent bombings; Mr. Felt and an associate publicly disclosed their actions and accepted the blame to protect lower-level FBI agents who were acting on their orders; Mr. Felt and his associate were convicted by a jury and then pardoned by President Regan; and Scooter Libby, Chief of Staff to Vice-President Dick Chaney, convicted of lying to the FBI and to the grand jury but spared jail when President George W. Bush commuted his prison term.
1. Why does national security whistleblowing require courage?
In addition to losing their jobs, whistleblowers risk being prosecuted for crimes and going to jail for very long periods of time, having incredibly high legal bills that wreck their finances, losing friends and associates, etc.
MORAL-ETHICAL EMPHASIS (CHARACTER COUNTS)
(Do what you are supposed to do; Persevere: keep on trying!; Always do your best; Use self-control; Be self-disciplined; Think before you act — consider the consequences; Be accountable for your choices)
1. How does the ethical principle of “responsibility” apply to whistleblowing?
Whistleblowers are doing what they believe they are supposed to do. However, there is a conflict in what they are supposed to do. See the Learning Guide to this unit.
(Do your share to make your school and community better; Cooperate; Get involved in community affairs; Stay informed; vote; Be a good neighbor; Obey laws and rules; Respect authority; Protect the environment; Volunteer)
See Questions 10, 11 & 13 in the Learning Guide for this unit.
ASSIGNMENTS, PROJECTS & ACTIVITIES
Any of the discussion questions can serve as a writing prompt. Additional assignments include:
1. Research the cases of one of the following whistleblowers and develop a thesis on the following topics: (a) whether their actions were justified and (b) whether they were correctly treated by our government, or in the case of Wigan, Silkwood and DeKort, their employers. After some of the names, there will be a note giving you a heads-up on an issue to deal with in your analysis.
- Daniel Ellsberg;
- Dr. Jeffrey Wigand — was he just getting back at his former employer for firing him? Does it matter? (See Learning Guide to The Insider);
- Mark Felt (Deep Throat);
- Karen Silkwood;
- Michael DeKort;
- Edward Snowden — should he be prosecuted in light of the facts that (a) his disclosures led to a public debate and change in public policy; and (b) subsequent leaks of information by high government officials have arguably done more harm to our ability to track terrorists than all of Snowden’s revelations (see Qaeda Plot Leak Has Undermined U.S. Intelligence by Eric Schmitt and Michael S. Schmidt, New York Times, 9/29/13);
- Thomas Tamm;
- Thomas Drake;
- Chelsea Manning;
- John Kiriakou — the only government prosecution arising out of the secret and at times illegal government torture program after 9/11; does it matter that his revelations may have been motivated by a desire to get people to buy his memoir and jump-start his consulting business?
- Franz Gayl;
- Jesselyn Radack;
- Jeffrey Sterling — how did the government stop him from presenting his claim for discrimination when he worked for the CIA; was he retaliating against the government for preventing him from pursuing his claim for racial discrimination? Does it matter?
- any whistleblower whose case has currently been in the news.
2. Research and compare the government’s treatment of people who violated the law or disclosed national security secrets but who were given favorable treatment, such as Scooter Libby, General Petraeus, or Leon Panetta (Zero Dark Thirty incident) with the way the government has treated national security whistleblowers such as Edward Snowden, Thomas Drake, Jeffrey Sterling, John Kiriakou, and Daniel Ellsberg. Was the government correct in its actions with respect to these individuals? Include in your essay, a response to the following questions: (a) The decision-makers in the government felt that Libby, Petraeus, and Panetta had made outstanding contributions to the USA. Why shouldn’t they be protected or shown mercy? As to Panetta, was his rank sufficiently high to exempt him from the secrecy laws? (b) Whistleblowers such as Snowden also contributed something valuable to our society, why shouldn’t their contributions be recognized by the government? (c) How does the existence of an informal military-industrial complex that President Eisenhower warned the nation against on January 17,1961, that seems now to be a military-industrial-intelligence complex, play in your analysis?
3. John Kiriakou was sent to jail for confirming, to a reporter, the identity of a clandestine CIA operative. He was the only person prosecuted in relation to the illegal torture program. Kiriakou points out that “when the government chooses among similarly situated people and charges only those who have publicly spoken out against the government’s position, the government engages in selective prosecution.” Write an essay about the problem of selective prosecution of whistleblowers who disclose classified government information.
4. Perform your own Internet research and decide whether you think the President should pardon any whistleblower who has been pursued by the government, such as Edward Snowden, Chelsea Manning, or Thomas Drake. Write a detailed letter to the President giving him your position on whether he should or should not pardon them. A copy of the letter should also be sent to the then sitting attorney general of the U.S.
5. Research and write an essay on any of the following topics:
- The Espionage Act of 1917 and its use by the government against whistleblowers.
- What difference, if any, is there between the actions of a national security whistleblower who discloses secret government information and a civil/human rights protester who engages in civil disobedience who either violates a law that he considered to be illegal (such as laws prohibiting integrated lunch counters) or violates another law (such as laws against trespass) to raise consciousness about their cause.
- Research and write an essay describing federal whistleblower protection laws and regulations and their effectiveness.
- Research and write an essay with your findings relating to any whistleblower protection acts or regulations in your state.
- The capabilities of TEMPORA, PRISM, SSO, Thinthread and the differences between them, and their implication for privacy rights.
6. While he was campaigning for the Presidency, on August 1, 2007, Barak Obama promised that his administration would not “spy on citizens who are not suspected of a crime.” What happened between then and 2013 when the NSA was collecting metadata on hundreds of millions of Americans were not suspected of a crime? Does power corrupt? Is this the old adage that when given a chance, the government will overstep its bounds?
7. Ed Snowden explained why he risked imprisonment or exile to disclose what he considered to be the NSA’s illegal and unconstitutional surveillance of Americans with this statement:
So, for me, it all comes down to state power against the peoples’ ability to meaningfully oppose that power. And I’m sitting there every day getting paid to design methods to amplify that state power. And I’m realizing that if [the policy of the government changes and it decides to try to suppress dissent] you couldn’t meaningfully oppose these. I mean you would have to be the most incredibly sophisticated, technical actor in existence. I mean, I’m not sure there’s anybody, no matter how gifted you are, who could oppose all of the offices and all the bright people, even all the mediocre people out there with all of their tools and all their capabilities. And as I saw the promise of the Obama administration be betrayed and walked away from and in fact, actually advance . . . the things that had been promised [by President Obama] to be sort of curtailed and reigned in and dialed back, and [they] actually get worse, . . .
Answer each of the following questions and explain your answers: Do you agree with Snowden? Would you make the same choice? Was his sacrifice worth it?
8. President Obama on Ed Snowden:
Mr. Snowden has been charged with very serious crimes, and he should be returned to the United States where he will be granted full due process and every right available to him as a United States citizen… facing our justice system under the Constitution. No, I don’t think Mr. Snowden was a patriot. I called for a thorough review of our surveillance operations before Mr. Snowden made these leaks.
On the other hand, while acknowledging that he has committed a crime, many other persons from the Obama administration have acknowledged that Snowden performed a public service, Write an essay stating whether you think Snowden is a patriot, a traitor, or something in between. Explain why.
9. One of the persons shown in Citizenfour said the following:
In 2008, they eliminated the warrant requirement for [collecting data on] all conversations except ones that take place by and among Americans exclusively on American soil. So they don’t need warrants now for people who are foreigners outside of the US, but they also don’t need warrants for Americans who are in the United States communicating with people reasonably believed to be outside of the US.
So again, the fact that there are no checks, no oversight about who is looking over the NSA’s shoulder, means that they can take whatever they want. And the fact that it’s all behind a wall of secrecy and they threaten people who want to expose it, means that whatever they’re doing, even violating the law, is something that we’re unlikely to know until we start having real investigations and real transparency into what it is that the government is doing.
Do you believe that the government programs described in this quote are a threat to liberty? Take a position and justify it.
Click Here, For Additional Assignments.
9. Compare the pardons given by President Regan to Mark Felt and Edward S. Miller for authorizing FBI agents to burgle the homes and offices of American citizens during the 1970s with the situation of Edward Snowden. [Teachers, for background on this, see Supplemental Materials to Learning Guide to All the President’s Men.]
10. Research and write an essay in which you compare and contrast the actions of U.S. Captain Frank Rockwood, Jr. (U.S. invasion of Haiti, 1994 – 1995) and the three men whose pictures Rockwood kept at his workplace.
- Hugh Clowers Thompson Jr. — saved civilians during the My Lai Massacre;
- Claus von Stauffenberg — German officer attempted to assassinate Hitler in 1944;
- Georges Picquart — French officer court-martialed for disclosing the truth in the Dreyfus Affair.
Note to Teachers: While the propriety of Rockwood’s actions and those of the Army in prosecuting him can be debated one way or the other, Rockwood’s attempt to stop human rights abuses at a Haitian prison were not clearly justified, while the actions of his three heroes were clearly justified in the circumstances in which they violated direct orders. Regardless of where one comes out on Rockwood, he did have a point, and there is a certain romanticism about what he did. For background, see Links to the Internet Section on Captain Rockwood.
CCSS ANCHOR STANDARDS
Multimedia: Anchor Standard #7 for Reading (for both ELA classes and for History/Social Studies, Science, and Technical Classes). (The three Anchor Standards read: “Integrate and evaluate content presented in diverse media, including visually and quantitatively as well as in words.”) CCSS pp. 35 & 60. See also Anchor Standard # 2 for ELA Speaking and Listening, CCSS pg. 48.
Reading: Anchor Standards #s 1, 2, 7 and 8 for Reading and related standards (for both ELA classes and for History/Social Studies, Science, and Technical Classes). CCSS pp. 35 & 60.
Writing: Anchor Standards #s 1 – 5 and 7- 10 for Writing and related standards (for both ELA classes and for History/Social Studies, Science, and Technical Classes). CCSS pp. 41 & 63.
Speaking and Listening: Anchor Standards #s 1 – 3 (for ELA classes). CCSS pg. 48.
Not all assignments reach all Anchor Standards. Teachers are encouraged to review the specific standards to make sure that over the term all standards are met.
LINKS TO THE INTERNET
Whistleblower Advocacy Organizations
- National Whistleblower Center and the Government Accountability Project;
- Project on Governmental Oversight;
- Sam Adams Associates for Integrity in Intelligence;
Franz Gayl and the Humvee
- The Unquiet Life of Franz Gayl by James Verini, The Washington Monthly, July/August 2011;
- Marine whistle-blower vindicated after seven-year fight by Tom Vanden Book, USA Today, 9/25/14;
- Franz Gayl, Troop Safety whistleblower from the Government Accountability Project;
- MRAP web page from the U.S. Marines;
- Fired Humvee whistleblower wins $990,000 by Randy Furst, Star Tribune, 9/17/14;
Daniel Ellsberg and the Pentagon Papers
- Willing to Risk Prosecution a clip from the film from PBS – Ellsberg talks about his final decision;
- PBS website on the movie The Most Dangerous Man in America;
- The Secret Sharer by Jean Mayer, The New Yorker, 5/23/11;
- Government Case Against Whistleblower Thomas Drake Collapses by Marcy Wheeler, The Nation, 6/13/11;
- The Vindication of Edward Snowden — A federal appeals court has ruled that one of the NSA programs he exposed was illegal by Conor Friedersdorf; The Atlantic; 5/11/15;
- The Latest Snowden Leak Is Devastating to NSA Defenders by Conor Friedersdorf, The Atlantic; 7/7/2014;
- Edward Snowden Says He’d Go to Prison to Come Home by David A. Graham; The Atlantic; 10/5/15;
- Edward Snowden or the NSA: Who Violated Your Privacy More? by Conor Friedersdorf; The Atlantic; 7/8/14;
- European Lawmakers Vote in Support of Edward Snowden by Conor Friedersdorf; The Atlantic; 10/29/15;
- The Lies Edward Snowden Tells! by David Frum, The Atlantic, 4/18/14;
- National Security & Human Rights —FACT: Snowden is a whistleblower from the Government Accountability Project – accessed 1/31/16;
- John Oliver presses Edward Snowden on whether he read all leaked NSA material by Alan Yuhas Interview with of Snowden by HBO’s John Oliver, The Guardian, 4/6/15;
- ISIS Leader Takes Steps to Ensure Group’s Survival by Eric Schmitt and Ben Hubbard, New York Times, 7/20/16;
- New York Times Suffers Redaction Failure, Exposes Name Of NSA Agent And Targeted Network In Uploaded PDF by Tim Cushing, TechDirt, 1/28/14;
- Official Reports on the Damage Caused by Edward Snowden’s Leaks Are Totally Redacted by Jason Leopold, VICE News, 2/25/15; government assessment of harm from Snowden’s revelations: “the scope of the compromised knowledge related to US intelligence capabilities is staggering”
- Pentagon report: scope of intelligence compromised by Snowden ‘staggering’ by Jason Leopold, The Guardian, 5/22/14;
- Are Snowden’s leaks dangerous? Take claims with a pillar of salt by Stephen Whitfield, The Dallas Morning News, 9/5/14;
- Obama disagrees with Holder on Snowden by Susan Crabtree, Washington Examiner, 5/31/13 – with other statements that Snowden performed a public service;
- The NSA’s bulk metadata collection authority just expired. What now? by Ewen MacAskill, The Guardian, 11/28/15;
- NSA Ends Sept. 11-Era Surveillance Program by Eyder Peralta, PBS, 11/29/15;
- NSA begins new phone surveillance program as bulk metadata collection ends on RT, 11/28/15;
- Attorney: Spy chief had ‘forgotten’ about NSA program when he misled Congress by Julian Hattem, The Hill, 5/8/15;
- National Intelligence Director Apologizes for Lying to Congress by Paul D. Shinkman, U.S. News and World Report, 7/2/13;
- Script of Citizenfour from Springfield! Springfield!;
- Obama’s 2007 Promise: ‘No More Illegal Wiretapping of American Citizens’ by Bob Parks, CBS News.com, 6/10/13;
- The Spy Who Said Too Much by Steve Coll, The New Yorker 4/1/13;
- John Kiriakou’s website;
- Exclusive: Freed CIA whistleblower John Kiriakou Says “I Would Do It All Again” to Expose Torture an interview from Democracy Now!;
- Breaking Silence, Wife of Jailed CIA whistleblower Jeffrey Sterling Seeks Presidential Pardon from Democracy Now!;
- Exclusive: CIA whistleblower Jeffrey Sterling Speaks Out upon Sentencing to 3.5 Years in Prison from Democracy Now! 5/12/15which shows the short documentary The Invisible Man about the case of Jeffrey Sterling;
- CIA Officer Jeffrey Sterling Sentenced to Prison: The Latest Blow in the Government’s War on Journalism by Norman Soloman, The Nation 5/12/15;
- This is how a police state protects “secrets”: Jeffrey Sterling, the CIA and up to 80 years on circumstantial evidence Sterling’s conviction should chill anyone who believes in investigative reporting in a free society by Marcy Wheeler, Salon, 1/28/2015;
- US embassy cables leak sparks global diplomatic crisis by David Leigh, The Guardian, 11/28/10;
- Bradley Manning sentenced to 35 years in WikiLeaks case by Julie Tate, Washington Post, August 21, 2013;
- Chelsea Manning may face solitary confinement for having Jenner Vanity Fair issue The Guardian, 8/12/15;
- Chelsea Manning Shares Her Transition to Living as a Woman — Behind Bars;
- Military approves hormone therapy for Chelsea Manning by Tom Vanden Brook, 2/13/15;
- Glenn Greenwald: Why Americans Prefer Edward Snowden to Chelsea Manning by Lauren Walker; Newsweek; 7/20/15;
- Wikipedia Article on Chelsea Manning;
- Did Bradley Manning Actually Harm National Security? by Denver Nicks, The Nation, 1/12/12;
- Just How Damaging Were Manning’s WikiLeaks? by Sarah Childress, PBS Frontline, 8/6/13;
- Analysis: Manning damage has fallen well short of worst U.S. fears by Warren Strobel, Reuters, 7/31/13;
Michael DeKort – Deepwater
- Michael DeKort’s Youtube Video August 3, 2006;
- Will a Botched Coast Guard Contract Come Back to Bite James Comey? by Rick Pearlstein, The Nation, 7/29/13;
Leaks and Leakers, Selective Prosecution, and Disparate Treatment
- Intercepted al Qaeda message led to shuttering embassies, consulates by Barbara Starr. Chris Lawrence and Tom Cohen, CNN;
- Qaeda Plot Leak Has Undermined U.S. Intelligence by Eric Schmitt and Michael s. Schmidtsept, New York Times, 9/29/13;
- Leon Panetta’s ‘Zero Dark Thirty’ Secret Did the ex-CIA director leak details about the bin Laden raid? by Blaine McEvoy Rolling Stone, 12/11/13;
- Whistleblowing (In the Public Interest) vs. Leaking (“AUTHORIZED” Leaks for Political Gain); by Jesselyn Radack, Daily Kos 6/7/12;
- Bush Pardons 6 in Iran Affair, Aborting a Weinberger Trial; Prosecutor Assails ‘Cover-Up’; Bush Diary At Issue; 6-Year Inquiry Into Deal of Arms for Hostages All but Swept Away 12/24/1992;
War on Whistleblowers: Free Press and the National Security State
- Speaking Up, and Paying the Price ‘The War on Whistleblowers,’ a Documentary by Stuart Klawans, N.Y. Times, 4/18/13;
- Interview: War on Whistleblowers’ director Robert Greenwald by David W. Brown, 4/15/13;
- ‘War on Whistleblowers’ Review: Robert Greenwald vs. Government Secrecy Alt Film Guide;
- ‘War on Whistleblowers’ Film Highlights Dangers of Crackdown/Director Robert Greenwald examines how the government keeps its secrets by John Knefel Rolling Stone, 4/1713
- New N.S.A. Chief Calls Damage From Snowden Leaks Manageable by David E. Sanger, 6/16/2013;
- Leon Panetta Revealed Top Secret Information About Bin Laden Raid by Gregory S. McNeal, Forbes, 12/11/13;
- I got 30 months in prison. Why does Leon Panetta get a pass? John Kiriakou, LA Times Op-Ed, 3/9/14;
Defense of Superior Orders
- Defense of Superior Orders before Military Commission by James B. Insco, Duke Journal of Comparative and International Law, 2003, Vol 13:389;
- Wikipedia Article on the Golden Rule accessed June 17, 2016;
- List of Federal Whistleblower Protections from the The National Whistleblower Center;
- OSHA’s Whistleblower Protection Program tries to prevent retaliation against whistleblowers in private industry;
- Whistleblower Protection Act; this Wikipedia article details flaws in the federal whistleblower protection system;
Captain Lawrence Rockwood
- Army Finds Captain Guilty of Leaving Post to Inspect Haitian Prison by Bradley Graham, Washington Post, 5/14/95;
- American Officer’s Mission For Haitian Rights Backfires by Francis X. Clines, NY Times, 5/12/95 (this article describes Rockwood’s testimony at his courts martial setting out the reason for his actions.
The Bibliography for this Learning Guide consists of the websites listed in the Links to the Internet Section.
This Learning Guide was written by James Frieden and published on July 15, 2016.