Image: NBC News
When Edward Snowden tried to voice his concerns about the NSA’s legal authority through the appropriate channels, officials told him to “stop asking questions.” Or at least that's what he told NBC during Wednesday night's interview, his first in the US since exposing the government’s sweeping surveillance operation.
Snowden said he repeatedly voiced his concerns to officials and colleagues, on official record and off it, and the response was something akin to, “you’re right …but do you know what happens to people that stand up and talk about this?”
Obviously, he found out, and since blowing the whistle on the NSA, Snowden’s been criticized for leaking documents to the press instead of taking his issues to the authorities. After the first leaks trickled out last summer, President Obama insisted there were official channels “available for somebody whose conscience was stirred.” Government officials, not journalists or the public, can and should attend to these concerns. This refrain has surfaced over and over again in debates over Snowden's decision.
Sure, if abuse of power within the intelligence agency could be curbed via robust internal pathways, we could sidestep the possible security consequences of classified information made accessible to the public. But a string of frustrated whistleblowers have suggested that road is paved with difficulties, something critics tend to gloss over.
Snowden's predecessors have echoed doubts about the effectiveness of internal channels, and know exactly “what happens to people who talk about this.”
Thomas Drake, a former senior executive for the NSA, adhered to the whistleblowing procedures mapped out by the Intelligence Community Whistleblower Protection Act. Following procedure, he consulted with colleagues and co-filed a report to the Department of Defense. In response, the FBI raided his home and confiscated his computer. He was initially prosecuted under the Espionage Act 1917—you know, that act originally geared toward World War I spies and dissidents. He was eventually cleared of wrongdoing.
William Binney, a former top-level intelligence official, quit after three decades working for the NSA. He voiced his concerns about the wasteful, mass data collection under the Trailblazer program. Binney even helped design an alternative program, called ThinThread, to focus surveillance on a leaner scope. He and others took their concerns to Congress, to no result. Later, the FBI launched an investigation. They raided his home in search of sensitive stolen material. One agent pointed a gun at him mid-shower in front of his family.
Soon after, the NSA revoked his security clearance. “We are a clear example that [going through] the proper channels doesn't work,” Binney told Reason in an interview.
Pentagon Papers leaker Daniel Ellsberg, perhaps the most famous American whistleblower, told NPR in an interview praising Snowden last year, “I did it the wrong way… I wasted years trying to do it within the executive branch and then within Congress.” Eventually, he saw no other way. "I really regarded [it] as anathema ... leaking as opposed to working within the system," Ellsberg said. "That was a fruitless effort, as it would have been for Manning and Snowden."
The ICWPA allows employees or contractors with “urgent concerns” about intelligence activity to report the concerns to Congress or the Department of Justice Office of the Inspector General. It’s generally considered a weaker law than the US Whistleblower Protection Act, reported the Washington Post, but the latter excludes government contractors from protection, as Snowden has pointed out before. The NSA relies on heavily for all aspects of its intelligence operations.
According to the Post, the ICWPA “allows for national-security whistleblowers to release classified information to an inspector general or member of a congressional intelligence committee, but actually does not protect whistleblowers from retaliation. The Government Accountability Project, in an amicus brief filed in December, called the law “toothless" and said it "creates bureaucratic procedures that makes blowing the whistle an exercise in futility. It also fails to provide substantive protections against retaliatory personnel action and creates no mechanism for corrective actions.”
Snowden parroted that sentiment Wednesday night, though of course it’s hard to glean how truthful his account was. NBC said it learned from “multiple sources” that Snowden sent at least one email asking questions, and in response the NSA released a brief correspondence between Snowden and the General Counsel, in which Snowden asked about the legality of the training he had just completed, but didn’t specifically mention concerns about government abuse.
Here's a copy of the email, from April 2013, sent a couple months before he leaked details of the PRISM program.
The email’s cautious probing doesn’t quite smack of a serious whistleblowing attempt, which is maybe why the government was so willing to release it. But while the General Counsel claims this is the only email, Snowden maintains that he reached out to officials at least 10 times.
Chronic whistleblowing and reports of a clog in proper channels points to an institutional problem. What happens in the NSA black box? Where is the evidence that internal concerns are taken seriously? Rather than thrash about at whistleblowers, the government might want to peer inward if it really wants to uncover the root of the problem.