March 13, 2014

America’s Ambivalence towards Whistleblowers: Highlights from a Fordham Panel of Whistleblower Experts

lipsBy Marlene Koury

The Center on National Security and PEN American Center hosted a riveting panel Tuesday evening at Fordham Law School on the critical role whistleblowers play in keeping America safe and the continued ambivalence so many feel toward them.  The five panelists explored the historical, cultural, legal and political dimensions of whistleblowing, along with recent controversies surrounding Edward Snowden and other national security whistleblowers.

On the panel was Ray McGovern, a retired 27-year CIA analyst who now works as a public advocate for intelligence whistleblowers. Unsurprisingly, he is an outspoken defender of Snowden.  He spoke of Snowden’s courage in standing up for our collective Constitutional rights and proudly described presenting him with the Sam Adams Award for integrity in intelligence last October in Moscow. McGovern also lauded former State Department veteran Peter Van Buren, who was in the audience, and who wrote an unflattering book about the US reconstruction efforts in Iraq titled We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People.  The US subsequently brought multiple charges against Van Buren for writing this book and tried to take away his long-earned pension. Through the efforts of Government Accountability Project and the ACLU, the government dropped their charges, allowing Van Buren to retire from the State Department with full benefits.  McGovern also spoke about his own missed opportunity to blow the whistle during the Vietnam war, which he believes might have saved many lives, and he describes as one of the biggest regrets of his life.

Also on the panel was Mike German, a former FBI agent who specialized in domestic terrorism.  Mr. German left the FBI after blowing the whistle to Congress on deficiencies in FBI counterterrorism operations.  German discussed the importance of whistleblower protections for intelligence officers and how current protections for FBI and other intelligence whistleblowers are “designed to fail.”  He also discussed how President Obama’s Directive aimed at protecting these kinds of whistleblowers is woefully insufficient and that the government investigation into whistleblower retaliation mandated by the Directive is a year overdue – and nowhere in sight.

The third speaker on the panel was Julia Angwin, an award-winning investigative journalist at ProPublica, who received the Pulitzer Prize in Explanatory Reporting for coverage of corporate corruption. Angwin frequently interviews whistleblowers and spoke primarily about how difficult it is to interview and protect sources given that social media, web browsers, cell phones and other data tracking devices easily reveal our social and business connections, our web browsing history and searches and our whereabouts.  Angwin discussed emerging technologies and alternate ways to communicate with sources, including Secure Drop, encryption software, and “burner” phones. She said that many sources simply pick up the phone and call her – despite her warnings – leaving a trail that is easy to pick up. A testament to the fact that for many whistleblowers, protecting the public is more important than protecting themselves.

Wrapping up the panel was David Pozen, a former clerk for Justice John Paul Stevens and now an associate professor at Columbia Law School who specializes in constitutional law and national security law.  Pozen spoke about the Constitutional right to be judged by a “jury of peers,” and how Snowden chose to be judged by his peers in the international community, rather than those in the Eastern District of Virginia, who, as Pozen noted, without necessarily agreeing with Snowden’s decision, would not necessarily have been so understanding or accepting of what Snowden was trying to accomplish.  Pozen discussed the prevalent criticism of Snowden that it was not that he blew the whistle, but rather how he blew the whistle – by going to the press. Pozen pushed back on that criticism, arguing that under the current state of whistleblower law, he truly did not have a reasonable alternative.  Like German, he spoke about how whistleblower protections for intelligence officers are desperately needed and sorely lacking.

The perspectives of each panelist were unique, yet they all had the same message: national security whistleblowers should be supported and need strong protections or we are almost certainly going to see more Snowdens leaking classified information to the press in the future.  Adding to this central theme was the moderator of the panel, Suzanne Nossel, who emphasized that all of the controversy surrounding Snowden and national security whistleblowers generally has highlighted the great ambivalence that so many feel towards these whistleblowers.  Hence the title of the panel being “Whistleblowers: Dissenters, Advocates, Criminals, or Loyalists?” Whether the exploits of Edward Snowden has reinforced and exacerbated the ambivalence is a question that remains to be seen.

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