At the Government Accountability Project (GAP), we do a fair amount of international work on whistleblower protection legislation. Often we advise governments on provisions they should include, if their new law is to be effective. These clauses are numerous and complex, and at some point in the discussions, we pause to say that no matter how comprehensive the law, if the country enacting it lacks either an independent judiciary or a free press, the legislation is little more than a good-government charade.
As Americans, we've been comfortable speaking about these prerequisites for effective whistleblower protections for a long time. Two weeks ago, however, at the International Whistleblower Research Network in London, this changed. As we spoke, Edward Snowden, the NSA whistleblower, was in hiding in Hong Kong, and we were discovering what our government had done to prevent him from disclosing more about its electronic surveillance of ordinary civilians.
A secret indictment had been filed against Snowden for revealing that a secret court had secretly interpreted U.S. law to allow the super-secret National Security Agency (NSA) to collect digital data secretly on American citizens. The NSA was, of course, also collecting such data on civilians the world over, for purposes, we're told, of ferreting out terrorist plots.
Before Snowden exposed the workings of the Foreign Intelligence Surveillance Act (FISA) court, few Americans knew much about it. In fact, our acquaintance with this 35-year-old court is quite recent. From the Washington Post:
The public is getting a peek into the little-known workings of a powerful and mostly invisible government entity. And it is seeing a court whose secret rulings have in effect created a body of law separate from the one on the books -- one that gives U.S. spy agencies the authority to collect bulk information about Americans' medical care, firearms purchases, credit card usage and other interactions with business and commerce...
On June 22, two weeks after Snowden disclosed basic facts about NSA surveillance programs, the Washington Post reported that the FISA court, created decades ago to process "routine surveillance warrants," now issues clandestine "Supreme Court-style" rulings that surreptitiously extend the tentacles of government into the most private dimensions of Americans' personal lives:
The surveillance court is a different world of secret case law, non-adversarial proceedings, and rulings written by individual judges who rarely meet as a panel.
So much for the independent judiciary needed to make legal whistleblower protections stick.
And what about the free press in America? Well, the Washington Post is only now reporting on the FISA court workings. When covering classified information, our most prominent editors consult intelligence agencies about the impact of releasing it. The New York Times held its story about warrantless wiretapping by the Bush administration for over a year.
When Dana Priest of the Washington Post broke the story about the U.S. secret prison system abroad, her editors consulted the White House about how much to reveal and when. Regarding "black sites" themselves, Priest wrote:
Virtually nothing is known about who is kept in the facilities, what interrogation methods are employed with them, or how decisions are made about whether they should be detained or for how long.
She went on:
The Washington Post is not publishing the names of the Eastern European countries involved in the covert program, at the request of senior U.S. officials.
Of course, over the ensuing months and years, the whole sorry story seeped out. Poland and Romania. Waterboarding and "walling." After that, the U.S. press corps missed the point about human and civil rights violations entirely and entered into an intense debate about whether waterboarding was torture. CBS News labeled it a "controversial technique."
So speaking of "missing the point," the U.S. media is now hotly debating whether or not Snowden is a whistleblower, with an Associated Press editor instructing staff not to label him as such. Legally, however, Snowden is a whistleblower under the law if he disclosed actions that he "reasonably believes" to be illegal. Therefore, the fact that others -- especially the accused -- declare that the actions disclosed are not illegal, does not deprive him of his whistleblower status. This straightforward definition does not seem to matter to the AP.
Nor does it much matter to David Gregory of Meet the Press, who asked Glenn Greenwald of The Guardian why he (Greenwald) should not be charged with a crime for "aiding and abetting" Snowden.
On June 26, the Washington Post reported, somewhat resentfully, that government officials in other countries (Russia, China and Ecuador) are engaging in a certain schadenfreude as our officials try to explain their piety about democracy, human rights and free speech in the face of the Snowden disclosures:
[Snowden's] disclosures about top-secret surveillance programs have already come at a price for the U.S. government: America's foes have been handed an immensely powerful tool for portraying Washington as a hypocritical proponent of democratic values that it doesn't abide by at home.
In other words, America's loss of credibility and prestige abroad as a champion of democratic values is not due to duplicitous and possibly illegal conduct of our government. Rather it is a consequence of the actions of the whistleblower.
All of this makes standing in front of an international audience, as an American organization that protects and defends whistleblowers, a tough proposition. But not because of what Snowden has said. Rather because of what our government has done. Looking at our metastasizing secret court system and our captive media, here at GAP, we've now got to face the fact that, officially, in the Surveillance State, the new enemies are whistleblowers, and we lack the essentials to protect them.
Bea Edwards is Executive & International Director of the Government Accountability Project, the nation's leading whistleblower protection organization.