Well, the first thing that I want to state is where I’m coming from, because this topic,
for one thing, to do in 11 minutes is virtually impossible, so I’m going to try and give
you kind of a 30,000 foot perspective, give you a little bit to think about. The work
that I do down in D.C. and across, really, the world is not only to represent whistle-blowers,
which is a topic that many people don’t fully understand, but to represent national
security whistle-blowers, which have their own sub-context, and then people who work,
just as an employment situation at the CIA, the Defense Intelligence Agency, the National
Security Agency, and all these 3 letter agencies you hear about and you watch in movies. These
are people whose affiliation at times to the US Government is a classified secret. That
the work they do in other countries, if they were caught, they wouldn’t be simply determined
to be persona non grata and deported. They would be captured, tried, and possibly executed,
so the information that surrounds their activities can be significantly crucial, important, and
dangerous. So what’s a whistle-blower? You know, in the general sense, at least by law,
someone who’s going to disclose fraud, waste, abuse, gross mismanagement, unlawful activity.
In the context of a national security whistle-blower, that very information may be classified, and
the world that they live in is very compartmentalized. Someone in office one is working on an operation.
So is someone in office two and they have no idea what the other is doing? They have
pieces of this mosaic puzzle. So when you follow through in deciding to become a whistle-blower,
the ramifications for what you do can be incredibly serious. So when a regular whistle-blower
discloses information and it shows up on the Washington Post, the New York Times, the Democrat
& Chronicle, they can publicly appear. They can talk. They may be subject to retaliation,
as many whistle-blowers are. They may suffer repercussions at work. But generally speaking,
what they do is not going to necessarily put others lives in danger. Whistle-blowers, to
be one legally, they have to follow a certain process. Now, for most of you, that probably
doesn’t mean very much. You can look at an individual case and you go, “they’re
a whistle-blower,” in your mind. But legally they’re not, because they didn’t go through
the process, so they’re not subject to the protections that might exist under law. And
I’ll say right out, the protections are inadequate. Especially in the national security
field, they’re almost non-existent, which brings us to Edward Snowden, as my example.
So June of 2013, we first learned of this twenty nine year-old former systems administrator
for a defense contractor of the national security agency. He shows up in a hotel in Hong Kong,
China, having disclosed somewhere between tens of thousands to one point seven million
pages of highly classified information. Information that is so secret at times that very few people
inside the United States government was even aware of it. As someone in the intelligence
field, he had signed secrecy non-disclosure agreements that not only imposed a legal obligation
on him, but a moral obligation, in my view, because the ramifications of what his decisions
might be not just impact him, but they impact all of us. And they might not just impact
an individual life, but they impact the national security interests, the foreign relations,
the public interests that we have as Americans, and foreigners overseas, who are engaged in
operations with our people. His disclosures are in two categories primarily. One is the
one that you’ve all heard about, even if you didn’t want to pay any attention. It
was dominating the news. Domestic surveillance. Was the United States government collecting,
in particular metadata of all of our phone calls, and storing that in their massive computer
systems around the United States? Now metadata, if you remember from when we used to have
cell phone bills, years ago, that actually documented who we called, and when, for how
long because they wanted to charge us for the time. Now you get a master plan. Nobody
cares who you call. But all that data is collected by a third party. AT&T, Verizon, T-Mobile,
whoever. And the US government was collecting it from those companies. Now you can do a
lot with metadata, for sure. And some here may find that very disturbing. Some might
not. So far, one court has found it to be an unconstitutional collection, without warrants,
without permission from a federal court. Others, about five or six now have decided that it
was a constitutional collection, but it’s a very major topic, that he revealed as a
potential whistle-blower, not going through the system though. Not complaining up his
chain of command. Not going to an inspector general office. Not going to the congress.
Not going to a court of law. Instead, he went to several journalists, who, right or wrong,
have a certain ideological bent to their own agenda. The second category of information
is offensive intelligence operations that the US government was conducting overseas.
Engaging in espionage. That’s what they do. That’s what the NSA does. It’s what
the CIA does. It’s what is legal under our law. It might be illegal in the country they’re
engaged in. That’s, again, what espionage is all about. They’re doing it to us. We’re
doing it to them. You may not like that. You may think it’s what we do. One thing that
came out for example was that we were surveilling and intercepting phone calls of the German
Chancellor Angela Merkel. Now, you may think that’s a pretty stupid thing to do. It’s
definitely a questionable policy concern because they’re an ally. You’re not supposed to
be spying on your friends, right? Is that an issue for whistle-blowing? Is there anything
illegal about that? Is there anything that is fraudulent or abusive or wasteful? It’s
a policy issue, and you might not like it, but that’s what our leaders are supposed
to be deciding. What is best at that level in determining for example, whether or not
we were going to be able to engage in operations in Iraq and Afghanistan and use military bases
that we have in Germany, because the German population wasn’t in favor of it, so we
wanted to know what the German government was going to do. There are intelligence operational
issues that come into play with these types of disclosures and these types of surveillances.
There was an article just came out last week in The Intercept. Laura Poitrace, who just
did a film on Ed Snowden has been released, which some of you may go and see. And it talks
about human intelligence, what we call “Hu mint.” People on the ground in several countries
including Germany, South Korea, and the Republic of China, and that these individuals working
for our government are engaged in offensive operations in those countries to gather intelligence
for whatever purpose it was, mostly involved with computers and hacking. Anything illegal
about that? Anything wasteful, fraudulent? Anything that goes against what we’re supposed
to be doing? Now again from an ideological standpoint, you might think so. But to reveal
human agents, sources, operatives who are engaged in companies and governments overseas,
to me, is a level of irresponsibility that can’t be accepted. There are notions where
when you are a national security whistle-blower you are going to make judgment decisions,
and you have to do so with not only this legal authority, but this moral authority. Now the
question comes, what can one do? He has legitimate questions. We all do on these programs. What
do you do as a national security whistle-blower when you can’t go and tell anybody? You
can’t even go and tell your spouse, your family members what you’re engaged in. So,
for Snowden, what could he have done? He says he talked to superiors within his company.
He might have. We don’t have any proof of it. We’ll take him for his word. It wouldn’t
of done anything. I’ll grant you that. It’s a defense contractor. They’re more engaged
with their contract with the government. There were some emails released of his communications
with the inspector general and the general counsel’s office of the NSA. They were very
bland. They only asked some perfunctory questions. They sent some answers back and that was it.
He could have gone to other Inspector General Offices within the US Government. The Office
of the Director of National Intelligence, ODNI. The Defense Department. He could have
gone to the Intelligence Committees that have oversight jurisdiction over the NSA. On the
house side and the senate side, which were created in the aftermath of Watergate, and
the abuses that occurred in the 1960s, 50’s 60’s out of McCarthy era, in particular?
He could have gone to individual members of Congress. We saw when the disclosures came
about, Senator Rand Paul, in fact, has sued the United States government to challenge
the domestic surveillance programs. He could have, in fact, brought a lawsuit in his own
right anonymously, as I’ve done for other CIA operatives to try and expose the information
without revealing the secrecy aspects of it. To bring to light questions that the public
can ask about. Now, would these things be effective? I don’t know. I could never promise
that anything that I could have done, or a colleague could have done in these types of
contexts, where we as the lawyers are restricted in what we can do or say because we are bound
by our own secrecy non-disclosure agreements when we have these cases. But I do know that
when you get to a certain stage and you don’t know everything about what you’re talking
about, that you’ve got to go that extra mile. You’ve got to seek the advice from
others. You’ve got to try and make and take every effort you can to do what you can before
you release information that can never be taken back. Now Snowden said, “I looked
at other whistle blowers and how they were treated, and they were mistreated.” And
he’s right. They were. The contexts are a little bit different, but the examples were
still the same. So he did it on his own and he just released the information. Now again,
going back to the amount of information in question, tens of thousands of pages to one
point seven million pages. It’s physically impossible for him to have actually read through
what he stole, and he gives it to these journalists, and in fact the journalists say, and he says,
“I haven’t disclosed any classified information”. “I have not written about it.” I gave
it to the journalists and I asked them to decide what they think should be released.”
Well that’s like giving a loaded weapon to a child and saying, “I wasn’t the one
who fired it. It was a decision of the child.” Now these are individuals who have no background
in intelligence or national security. Doesn’t mean the stories aren’t newsworthy. Of course
they are. Doesn’t mean that maybe we have a right to know as the public. In fact, we
do. And the public debate that’s happened since has been very enlightening, and is that
type of debate that will keep us in ensuring that the government doesn’t conduct abuses
that we’ve seen in the past. But the moral of the story, whenever I talk to anyone who
comes to me as a national security whistle blower, is responsibility. It’s not just
to you and your own principles, whatever they might be. It’s to all of us, as well. And
what you do, what you advocate may have such profound impact, negative or positive, that
you have to think twice. Thank you.
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