Published on November 17th, 2014 | by Martin Edwin "Mick" Andersen1
Martin Edwin “Mick” Andersen Remarks
Edward Snowden: Leaker Extraordinaire in the Service of Vladimir Putin’s Gulag
"Let every public servant know, whether his post is high or low, that a man’s rank and reputation in this Administration will be determined by the size of the job he does, and not by the size of his staff, his office or his budget. Let it be clear that this Administration recognizes the value of dissent and daring–that we greet healthy controversy as the hallmark of healthy change. Let the public service be a proud and lively career." – John F. Kennedy
By Martin Edwin Andersen*
One of the damning comments that can be made in discussions among unfortunately ahistorical Americans is that someone is a “conspiracy theorist”—the challenge referring to someone who presses hard on the paranoia pedal without regard for facts. The case of national security leaker Edward Snowden puts that putdown on its head: it is the “coincidence theorists” who need to come clean about why they have chosen to promote someone now enveloped in the protective embraces of olympic Russian police-state champion Vladimir Putin.1
For many of those used to fighting the good fight from the trenches of good government and public accountability, the strange case of former National Security Agency contractor Snowden causes particular dread. As the cases of Ukraine, Chechnya and Georgia show, former KGB officer Putin is a master at deception and propaganda; witness his very public embrace of Snowden, who stole classified documents far in excess of those he supposedly took to make his argument against NSA, and then fled U.S. legal reach. Even a fierce critic of U.S. foreign policy like Sean Penn was obliged to note that Snowden was not “legitimate,” his acts “based on the narcissism of the so-called ‘whistleblower’.”
Thus, like a bad dream with no end, a leaker arguably more akin to Edward Everett Hale’s “The Man Without a Country” is being promoted around the globe as a brave and selfless “whistleblower.”At stake: the very concept of whistleblowing and whatever chance there is to achieve bipartisan Congressional support for protecting real government truth tellers (modern Paul Reveres), today and in the future.
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I know a little about what is at stake. You see, in 2001, I was the first national security whistleblower to be given the “Public Servant Award” by the U.S. Office of Special Counsel (OSC).
I became a whistleblower was when I was working as a senior advisor for policy planning for the international education programs of the Department of Justice’s Criminal Division. My whistleblower disclosures sparked a three-year criminal investigation by the Department’s Inspector General (IG), as well as a probe of personnel practices involving whistleblowers by the OSC.
When I was recruited by the Criminal Division to come onboard as senior staff working on its international programs, for a moment I was truly happy. My bosses consistently rated my work as “outstanding” and our crime-fighting effort—focused on educating police and prosecutors in Latin America and Central and Eastern Europe—looked like they were paying dividends.
Unfortunately, my core belief that promoting the rule of law abroad should be accompanied by respecting it inside the Criminal Division proved to be contradicted by facts on the ground—by what senior officials were doing behind closed doors both at home and overseas.
The misconduct ranged from consultants in Haiti living and sleeping with 14-year-old girls, to using classified CIA documents as ‘treats’ for academic pals they knew did not have security clearances, as well as other gross failures to observe fundamental security practices.
It included the Attorney General’s top aide on U.S. immigration matters attesting in documents that a Russian woman with whom he was sleeping with at the time actually worked for DoJ, in order that she and another female friend could get the visas to this country for which they already had been turned down by the U.S. embassy in Moscow. In fact the services she provided were not for the Department. (The IG latter found that the man, Robert K. Bratt, at the time the Justice Department’s supposed top troubleshooter, had put his "own interests ahead of the interests of the government," and it described him as "recklessly indifferent to the security of the government.")
In short, as the Inspector General’s office reported to a hearing of the full House Judiciary Committee towards the end of the process:
We found that managers in [the DoJ offices] violated government regulations relating to travel, security, the use of contractors, and the hiring and promotion of federal employees, among others.
Although I could see the misconduct around me, I knew enough before acting to know that I needed to wait until the misconduct affected another important government agency, so that powerful people at Justice could not quash any investigation of their friends. That happened when I found out about the CIA’s classified information—the wrongdoing could no longer be kept “in house.”
After a serious of phone calls from offices and pay phones that were not my own, the head of DoJ security agreed to meet with me, bringing in two FBI agents for the interview in his office and promising me that my confidentiality would be respected. Approximately two weeks later, even as security officials put the entire international program staff in lock down as they sought evidence of wrongdoing, I was also “outed” as a whistleblower to Criminal Division security staff figuratively in bed with the wrongdoers.
It was then that I was told that my security clearance had "disappeared"—even though I had worked with classified information on a daily basis for the 19 months before it was mysteriously taken away. (Revocation requires a formal process, yet in the absence of any real protections for national security whistleblowers, the ability to circumvent that requirement is both easy and common for bureaucratic miscreants and their allies.)
Stripped of my work duties as well as the ability to perform them, I was sent to a room in the Division’s administrative offices, under the supervision a Bratt protégé, where I was given virtually nothing to do. (It was during this same period of time—the month of May–that I was supposed to be receiving an annual performance evaluation.) In the absence of any formal duties, and while I was being shunned for even polite conversation, I spent the time reading books about the history of the U.S. Civil War and biographies of George Washington.
It made for an odd moment. My security clearance had "disappeared"–but the cluttered, unsecured room where I was being warehoused was at the same time being used to store what were called "burn boxes" full of classified and other sensitive information that was supposed to be destroyed.
This farce was part of a libretto that was not meant to be believed, but rather to humiliate me—as the outed whistleblower—and, much more importantly, to warn others I worked with about the likely consequences for them if they came forward with what they knew about wrongdoing in the Criminal Division.
As I mentioned, I had received outstanding performance evaluations as well as glowing letters of recommendation from my supervisors. After my disclosures, however, I was told my services were no longer required at the Department.
The more than four-year-long ordeal my family and I were forced to go through left us several times teetering on the brink of bankruptcy and, worried about what that meant for my young daughters, put me into a state of severe depression.
The Justice Department IG did nothing to protect me and the other whistleblowers who came forward in the Criminal Division. However, that did not keep Eric Holder from claiming credit before Congress for the positive contributions the whistleblowing did for tightening up the egregiously lax security at a division of Justice that considered itself the crown jewel of federal law enforcement.
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As opinions clash and alleged conspiracies of the most hideous kind are bandied about—with Snowden centrally cast as a 21st Century “hero” or a contemporary Benedict Arnold “traitor”—the foot soldiers of left, right and center find themselves facing choices that will likely mean more pain and hardship for myriad already-overburdened true believers in a government of the people and for the people.
Ironically, aligned in favor of a soft landing for Snowden—someone who clearly decided to commit felonies before he got his last government contractor assignment—are some of the media giants with a record of being most in favor of government openness and accountability; in other words, the very values we hold in common.
Arm in arm and in lock step with The New York Times, the Guardian and a host of other media are important defenders of often-praised but rarely practiced protection for those in government committed to speak truth to power—whistleblowers.
Yet the arguments used in defense of Snowden dangerously parallel those that too many government bureaucrats—protective of their personal interests and policy preferences rather than those of the voting public—like to trot out in order to stave off real accountability.
The New York Times editorial judgment itself revealed a key dilemma when it said that, “Considering the value of his leaks and the N.S.A. abuses he has exposed, Mr. Snowden should be offered clemency or a plea bargain.” And what happens if the next Snowden acts to promote ideas or values the Times somehow finds unpalatable or repugnant?
Measured by what the Times editorial board opines is the worth of the cost of admitted criminal conduct needed to bring it about is for the Grey Lady the “value” of Snowden’s leaks. Applied more generally, the message seems to be that individuals in a bureaucracy should, from here on, be permitted to engage in criminality if they themselves disagreed with state policy, especially those that are highly unpopular or controversial measures.
The slippery slope emerges when—following a pardon of Snowden—hundreds of thousands of government workers of many different opinions, values and experiences begin to believe that any government policy about which they have significant disagreement can justifiably be thwarted by felony conduct.
Snowden appears to have no problem portraying himself as judge, jury and bureaucratic executioner—all in a single person. "I am not trying to bring down the NSA, I am working to improve the NSA," he claimed, as supposed “good government” groups promoted his receiving a Nobel Peace Prize. "I am still working for the NSA right now. They are the only ones who don’t realize it."
In fact, embracing Snowden is the good-government-activist equivalent of tainted Kool Aid, or making Stalin an ally—for those who to do so, watch your backs very carefully once the leaker claims to have "won." Create a system of the promotion of individual lawlessness based on personal ideology while working in the large and complicated bureaucracy and you may very well see both our government and the way of life it is supposed to defend suffer accelerated dry rot.
Some in the good government sphere defending Snowden have rushed to red-hot judgment on how, for example (in the words of a real but kool-aid entranced whistleblower): "Everyone with a security clearance who has access to sensitive information is part of the conspiracy, even if they haven’t personally observed wrongdoing, because they have been captured by the secrecy regime.”
Basic fact checking on Snowden’s activities shows that they have gone far beyond whatever exposure he gave to alleged official illegality (remember, accused bureaucrats also have the right to trial, and an assumption of innocence until proven guilty as well).
Taking advantage of a security clearance whose rules Snowden he took an oath to respect and using a set of talents which permitted him to rob some 1.7 million classified documents, this virtual viet cong knowingly grabbed bushels of top secret information that—rather than proving violations of citizen rights and federal law—included vital knowledge of legitimate, legal NSA operations meant to protect this country and its people.
Well-regarded national security whistleblower lawyer Mark Zaid has offered insightful analysis about what all of this means, zeroing in on those …
who unequivocally and without hesitation, fully support, without making any factual or legal distinction whatsoever, the illegal conduct of individuals such as … Snowden. Some, but not all of course, of those involved on this side argue nothing more than policy rhetoric rather than the actual state of the law. And rather than use the opportunity to highlight inadequacies in the system AND propose and pursue reform, some merely jump on the bandwagon to make a hero out of unlawful conduct that lawyers, especially whistleblowing lawyers, should be quite wary of promoting.
Zaid pointed to a confrontation he had with Snowden’s lawyer, Jesselyn Radack, at a conference, "Leakers, Whistleblowers & Traitors: An Evolving Paradigm," sponsored by The Journal of National Security Law & Policy and the Georgetown Center on National Security concerning classified leaks and espionage prosecutions.
“With her usual mannerism of preaching, rather than professionally wait until I finished my comment and asked her a question, she rudely interrupted me,” Zaid said, going on to note:
Ms. Radack traveled to Russia to present Snowden with a whistleblowing award for his unquestionably illegal activity. She declines to make any distinction between Snowden’s disclosure of the NSA’s metadata 215 collection program with the other 1.7 million documents he stole many of which reveal lawful, overseas intelligence operations. While many could argue with the soundness of a policy that might involve surveillance of foreign leaders, there is no waste, fraud, abuse or illegality (under US law) involved. While Snowden is legally not a whistleblower in any statutory or regulatory context because he didn’t follow the law, I can understand how some would generically view him as one, and I don’t really have an issue with it so long as the clarification is made, with respect to the domestic disclosure programs. But he is completely undeserving of the title with respect to just about everything else that has been revealed thus far – "espionage porn", as some have called it.
Clearly our federal system, like many state and local governments, is in vital need of reform to protect truth tellers, particularly national security whistleblowers. Perhaps it is the British whistleblower group, Public Concern at Work, that bests articulates the importance of truth tellers in a free and open society.
Whistleblowing, the PCaW says, “is a valuable activity which can positively influence all of our lives.” It then goes on to offer another critical observation: “The whistleblower rarely has a personal interest in the outcome of any investigation into their concern—they are simply trying to alert others.”
Snowden’s personal interest is all but self-evident. He did not want to face the music for his actions—even while posing as a champion of civil disobedience in the tradition of Dr. Martin Luther King, Jr., Cesar Chavez and Daniel Ellsberg.
Instead Snowden sought refuge in the olympically-authoritarian Russia, offered other nations even more NSA secrets if they too would help him, and then went on to claim the United States owed him a huge debt of gratitude for wantonly violating its laws.
Only the willingly blind can see this as anything other than theft, not civil disobedience. Even someone like Fareed Zakaria, a self-declared sympathizer of Snowden’s, admitted in a Washington Post column that none, repeat none, of the leaker’s “substantive revelations” resulted in uncovering anything done by the NSA that was “morally scandalous.”
And anyway, as far as the rule of law is concerned, you don’t end cannibalism by eating alleged cannibals.
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The July 30, 1778 Resolution of the Continental Congress states unequivocably …
That it is the duty of all persons in the service of the United States, as well as all the other inhabitants thereof, to give the earliest information to Congress or other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.
National security whistleblowers—those working outside the Beltway and without the same access to Congress, the media, expert legal counsel, and the opportunity for face-to-face meetings with the U.S. Office of Special Counsel that I had—need to have appropriate legal protections in place in order to survive.
While I am personally no more important than I was at the beginning of the process, I think my experience does offer a case study of what real whistleblowing—as opposed to Snowden’s leaking—does …
to protect those who speak truth to power and to sustain the fight against government misconduct at a critical time in our history.
* Martin Edwin Andersen, a former senior adviser for policy planning at the Criminal Division of the U.S. Department of Justice, was the first national security whistleblower to be given the U.S. Office of Special Counsel’s "Public Servant Award" for his work protecting national security information in the world’s largest law firm. More recently, Andersen has worked as a assistant professor of national security affairs at the National Defense University and a lecturer at the U.S. Naval Academy.
1 The analysis of Russia in the U.S. Department of State Country Reports on Human Rights Practices for 2013 is clear: “There is no legal procedure in place to protect whistleblowers who report corruption committed by other public officials. When whistleblowers complained about official corruption, the official who was the subject of the complaint was sometimes asked to investigate, which often led to retaliation against the whistleblower, generally in the form of criminal prosecution.”