No, Snowden Didn't Have Any 'Other Avenues' To Blow The Whistle

from the let's-get-real dept

One of the key points that defenders of the NSA surveillance efforts keep making is that if Ed Snowden was so upset by what was happening he had “other avenues” to make his concerns known. Jennifer Hoelzer, whom you may recall from the post she wrote here about President Obama’s supposed desire for an open debate concerning NSA surveillance, has penned an excellent piece for Slate, once again debunking the President. This time, it’s about those supposed “other avenues” he had. As she notes, the problem is that anyone he took these concerns to would brush him off by claiming “it’s legal.” But the real concern the public has is the very fact that the NSA and so many of its defenders think this is legal.

If Edward Snowden had concerns that one of his co-workers was abusing the NSA’s surveillance authority to—for example—collect data on a former girlfriend or blackmail a member of Congress, he could have reported his concerns to a supervisor, and it’s highly likely that person would have done something about it.

But, contrary to what the president seems to think, Edward Snowden wasn’t concerned that the NSA was “improperly” collecting information on hundreds of millions of Americans. He was concerned that the government was collecting information on hundreds of millions of Americans. And how exactly does the president think Snowden should have raised that concern?

This is a key distinction that very few defenders of the NSA (and who are attacking Snowden) seem to grasp. The fact that the public — and many in Congress — have since spoken out in outrage over the program certainly suggests this is a key point. Every time NSA defenders argue “well, it’s legal” they miss out on the fact that a very large number of people don’t care because they don’t think it should be legal at all. That’s the debate we’re trying to have — and it’s the one President Obama, Dianne Feinstein, Mike Rogers, Keith Alexander and James Clapper still can’t even recognize is the key question.

Either way, as Hoelzer notes, Snowden really had nowhere to “complain” to about this actual issue:

Snowden’s former employer, Booz Allen, which requires employees to report “all suspected violations of the law” and cautions them to “take care to not report a violation to someone that [they] believe is involved in the matter.”

Well, nearly everyone Edward Snowden worked for—up to and including the president of the United States—was involved in the matter. So, again, whom exactly should he have gone to with his concerns?

Okay, well, what about Congress? Multiple people have suggested he could go talk to members of Congress. But, not so fast. Hoelzer takes a look at the Director of National Intelligence James Clapper’s website where it has a page on How to File A Whistleblower Complaint, explaining the “process” for contacting Congress (if you aren’t comfortable raising the concern within the intelligence community, which, clearly, Snowden was not). But, again, not so easy:

But then I noticed a problem. Before bringing an “urgent concern” to Congress, the guidance states that all potential intelligence community whistle-blowers must first notify the DNI of their “intent to contact the congressional intelligence committees directly.” In other words, if Snowden wanted to inform the Senate intelligence committee that the DNI had lied, he would first have to inform the DNI that he intended to inform on him. That seems like it could be a problem.

But, let’s say it wasn’t. Let’s say the director of national intelligence did the honorable thing and allowed Snowden to go to the Senate intelligence committee with evidence that he lied. Would Snowden have had any reason to believe going to Congress would make the least bit of difference?

Probably not, since the House and Senate intelligence committees were already aware of the NSA’s activities. And, having worked for Wyden, a committee member who spent years trying to raise concerns about domestic surveillance, I can tell you, individual members of Congress were virtually hamstrung from doing anything about the administration’s activities. Especially since the executive branch’s classification rules forbid the senator from sharing his concerns with anyone outside of the intelligence committee, including staff.

So, really, what “official channels” could Snowden have possibly used? As Hoelzer notes, the only way to really blow the whistle on this was to go “over the head” of the federal government and the President — and that’s to go to the American public.

I understand Obama’s frustration. No one likes it when someone goes over his head. It’s humiliating. But when the guy in charge appears to be a significant part of the problem, sometimes the only way to resolve the problem is to let his boss know what’s going on. And when the guy in charge is the president of the United States, that means letting the American people know what he’s been up to.

On that front, it appears that Snowden did exactly the right thing in how he blew the whistle.

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Comments on “No, Snowden Didn't Have Any 'Other Avenues' To Blow The Whistle”

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51 Comments
Anonymous Coward says:

The framework of our government was built around a system of checks and balances, the reason we have three branches… but it is pretty clear now that they system is failing. If our system is a scale then who you rely on to re-calibrate the scale is moot if there is no awareness that scale is off.

Regardless of the legality of what he did, Snowden helped the public gain awareness of HOW FAR OFF the scale is so that it can be re-calibrated as the framers designed our Republic to work. The People and the Constitution are the ultimate benchmarks to calibrate the system with.

And a note to the NSA: if what you are doing “is legal” then why is such a problem that it is exposed… if you aren’t doing anything wrong then you have nothing to worry about!

Anonymous Coward says:

Re:

It’s unlikely the voting public will stand up to the people who approved these programs. In just the last few years we have learned about secret kill lists, IRS interference with grass roots organizations, and widespread surveillance. The last time I checked I didn’t see throngs of people protesting at the Whitehouse, Capitol Hill, or the Supreme Court. If people aren’t already calling for resignations by now, nothing will get them motivated.

Anonymous Coward says:

Re: Re: Re:

I can’t argue that what you say is or is not true… but like in sports you miss 100% of the shots you don’t take.

What you are saying is that the if the public knows we lose by forfeit because public apathy rules the day (probably because of some former child star doing stupid things)…

What I am saying is that without these leaks we would lose because we didn’t even know there was a game that we are on the roster for playing. There are still some of us Americans that care more about things that actually affect us rather then what dress some movie star is wearing.

Of course not everything ‘in the news’ is truly as dire as one side or another says it is…. that is why getting the actual documents that aren’t a page full of black redactions are so critical to see.

DCL says:

Re: Re:

To follow up on my own comment to give some idea of how I see the three branches are failing…

Executive: Gone back on campaign word for transparency and supporting pro whistle-blowing rules.
Bottom line: can’t trust as they are part of the problem

Congress: Being lied to by NSA and its own members. Not to mention how much lobbying money and campaign contributions the ‘pro-NSA’ groups are worth.
Bottom line: can’t trust as they are part of the problem

Judicial (FISA): Not following true due process as only taking the NSA word for it and probably being lied to. Self admitted to be toothless. Doing everything in secret.
Bottom line: not effective and can’t trust as they are part of the problem

Uriel-238 (profile) says:

Re: Re: "If it's legal it's just."

Human beings are instinctively obedient to authority to the point that we’ll dutifully manage the work camps, the showers and the ovens when the law says these are necessary.

It takes training to be critical, to question if something that is legal (or, for that matter, sacred) is good or right, or in the case of a democracy ultimately serves the best interests of the people.

Ima Fish (profile) says:

Snowden clearly did have other avenues. Great criminals always have a backup plan, and this is the fed’s backup plan. “Whistleblowers don’t need to go to the press, if something is wrong, just tell us.” Who’s not going to buy that?!

However, the other avenue is clearly illusory and and was designed to find out who the whisteblowers are, to keep information from going public, and to use against whistleblowers who go straight to the press. There is simply no way the plan could work as designed.

Obama currently has no credibility. It’s clear he’ll say anything, no matter how ludicrous, to keep us in the dark. Snowden’s leak won’t destroy his presidency, but it has destroyed his legacy.

Anonymous Coward says:

Re: Re:

Obama has played away the White House silverware in poker if you know what I mean. He is coming down in history as a dark spot (non-racial).

I think there is a real dilemma in the design of a whistleblower act. If it relies on a single person making the call of blow or shut, it can be an extremely irresponsible politician just blabbering out secrets. There needs to be an organ with the ability to look through the evidence and make the call expediently.

When that is said, the current law is incredibly dangerous for the whistleblower as has been stated by several previous blowers. The point in having such a law is to give a better alternative to going to the media or enemies of the state, when the nearest chiefs are involved in something. As it works today it is far more dangerous in terms of vigilente ex-chiefs, getting gaged and the chance of getting sued has been close to 100 %.

Being constructive:
FISA instead of DNI would be far better, assuming a relatively working court, that is.
Also, make protection of the identity of the whistleblower a priority either by letting congressmen deliver the information for review with anonymity required or by letting the documents go through a more complex system instead of a person going through the system.

Lacking an independent and – in case of a “no can do” – tight-lipped organ to help whistleblowers anonymously is the same as pushing them to reporters, who will give these luxuries. Not seeing that is stupidity beyond belief from the lawmakers!

John Fenderson (profile) says:

Re: Re: Re:

Obama has played away the White House silverware in poker if you know what I mean. He is coming down in history as a dark spot (non-racial).

I disagree, he couldn’t have played away the WH silverware because that was played away long before he got into office. He may have played away the cheap stainless steel replacement forks, though.

Obama’s just the latest President to follow this ignoble tradition.

Anonymous Coward says:

consider as well that the latest addition to the committee that is supposedly going to check all this stuff out for legitimacy, has already come out with the same ridiculous statement of the road Snowden could/should have gone down. had the guy done things any different, the whole issue would still be going on (as i am sure it still is anyway!) exactly as before. Obama would have done absolutely nothing to change anything and Snowden would have been locked up straight away, just like all the other whistleblowers have been. that’s the thanks people have had from this administration! it has lied to the people over wanting people to expose bad practices. when they do, however, they get locked up and the one carrying out the bad act is given a fucking promotion! way to go!!!

Disgusted (profile) says:

Re: Re:

I’m not so sure I agree with this. The NSA jumped too quickly on the idea of canning 90% of their “system administrators”, most of which were (are) civilian contractors not NSA employees. I think Snowden did, in fact, have almost total access to the entire system. He certainly had sufficient access to grab the pile of documents he got.

No, the real problem here is that the all government branches, Executive, Legislative, and Judicial are in this up to their collective necks and can’t afford to “do something about it”. Again, follow the money.
.

Anonymoose says:

As a former member of the military who worked for the NSA for a number of years during the cold war, I’d argue that what Snowden did in this situation was not only moral and honorable – it was necessary. And the only thing he could have done given the architecture around these programs.

Governments are supposed to work for the people.

In the ‘old days’, the rules for the NSA were unambiguous – there are no circumstances where it is desirable or permissible to spy on Americans. Period. And ‘spying’ included ‘collection’. That was the law, but was also embraced as by those on the inside the agency as cultural norm, and the way it should be.

There were many avenues to report violations of law, abuses, etc. And we were regularly reminded that it was everyone’s legal responsibility to do so.

There were also overlapping rules that required military service members to disregard and report illegal orders given by superiors (described as violations of UCMJ, US or international laws). And contractors and civilians had similar requirements.

All of those systems of reporting seem to be broken now, or at least subverted.

These programs should not be legal. That’s the issue.

Informing the public is the last possible check when all else is out of balance.

Ninja (profile) says:

Every time NSA defenders argue “well, it’s legal” they miss out on the fact that a very large number of people don’t care because they don’t think it should be legal at all.

What makes laws effective is when they are socially accepted. It takes respect to make a law effective. Not the opposite. That’s why most of us respect laws against murder/rape and condemn those who break them. Because it’s o socially condemned crime, collectively. Let’s not forget that slavery was considered perfectly ok a while back.

PlayNicely says:

What irks me are the reactions of many commentators for example over at slate.

You always find at least 1/3 of the commentators are in favor of the government position on this and I do not understand how that can be. Of course I don’t know how many of them are simply paid shills or have another kind of financial interest in mass surveillance (like tens of thousands of contractors with their comfortable 200k salaries), but a lot of them seem to be genuine.

Positions like “he broke the law regardless of the illegality of what he exposed” and “he shouldn’t have fled to russia” (which are being expressend on both sides of the Atlantic) tend to boil down to “when in doubt the law takes precedence over your conscience”. I thought the opposite was a fairly well established principle, at least since the nuremberg trials, but apparently I was mistaken.

My question is wether and how someone with such a position can be convinced that it is the other way around, i.e. “when in doubt your conscience takes precedence over the law”.

Anonymous Coward says:

Re: Re:

I read Jennifer’s article on Slate last night and then scrolled down to the comments.

Woo boy! Some of the vitriol being spewed was stunning. Some of it made our worst trolls here look like saints.

I just don’t understand why so many people feel this spying is so great and wonderful and go to great lengths to defend it. I suspect, like you, that it might be paid shills.

Legal or not. Constitutional or not. This spying is not okay and will never be okay.

John Fenderson (profile) says:

Re: Re: Re:

I just don’t understand why so many people feel this spying is so great and wonderful and go to great lengths to defend it

It’s because a lot of people take comfort in the infallibility of government (ironically, I see more of this from the people who decry the “nanny state” than from those who don’t).

If your world view is that, then it’s genuinely a scary thing to have to face the fact that the government can do evil things systemically.

PlayNicely says:

Re: Re: Re: Re:

My own pure speculation to follow:

So the real underlying factor is the extent to which a person can tolerate complexity in his or her worldview to feel happy.

If that is very low, I basically accept the official story no matter what, because any deviance from it adds more complexity and thus unhappiness for me – I also instinctively defend it, because in effect I am defending my own state of happiness.

If that value is higher I can either accept the official story with some caveats and shades of grey or I can subscribe to an alternative story that is not too complex itself (i.e. rather simplistic all-encompassing conspiracy theories) while maintaining my happiness. Stories like these can make me switch from the former to the latter alternative.

If the value is higher still I might begin to approximate the complexity of reality whilst being happy, where different parts of the official story have different merits and some aspects consist of limited conspiracies, while others are just a consequence of many people with different interests showing some problematic emergent behaviour.

I don’t even mean to connect overall intelligence with this complexity-tolerance, as I see a lot of (by somewhat objective standards) intelligent people who seem to have a low tolerance in the complexity of a worldview. And this analysis cuts both ways – tolerating more complexity can lead to inaction (as a complex situation lacks obvious ways to deal with it), while a simpler worldview might more easily motivate useful action.

The answer to my original question would then be to find different approaches to convince people with different complexity-tolerance. A high-tolerance person won’t be convinced by a bumper-sticker-worldview while a low-tolerance person won’t respond to an intricate view of many different interests that lead to a wide array of outcomes.

That One Guy (profile) says:

Re: Re:

For the ‘he broke the law’ one you just need to point out the several examples of what happened to the people who tried to go the ‘legal and authorized’ route, as pointed out by an AC on another article:

http://www.techdirt.com/articles/20130725/16280123948/government-argues-bradley-manning-was-anarchist-as-case-closes.shtml#c450

And for the ‘he fled to russia’ one, just point out that russia was only supposed to be a waystop on his way to another country, it was the US’s actions in pulling his passport that stranded him there.

PlayNicely says:

Re: Re: Re:

Both very good replies, but I feel I begin to sound like a broken record because the same points come up over and over again, as if your replies haven’t been around in some form for months now.

I guess it takes persistence, influencing opinions seems to work like advertisements do: Repeat it often enough and sooner or later it will stick.

Richard (profile) says:

Legal, Schmegal...He Done Right

The major flaw in Snowden’s actions was his failure better to plan his getaway. He obviously (correctly) expected beforehand that all protections of U.S. law would be forfeit once he blew his whistle. I can admire his willingness to sacrifice his citizenship and, indeed, all semblance of normal life on the altar of anti-fascism for the benefit of his (practically speaking, ex-)fellow-citizens. However, he seems quite reasonably to prefer not to be required to spend the rest of his life in federal prison; his handling of that part seems shaky.

That his goal was worthy, I accept. That he had no alternate path in pursuit of his end, I accept. Wyden’s remarks have made clear there is NO “legal” channel by which to reveal the excesses of the NSA. Side note – without open, judicial review and full disclosure to the members of Congress as to the specifics of what they are voting on, is “legal” really a valid usage?

The happy ending to the story would include having Snowden receive a full, Presidential pardon, a lifelong, federal stipend, and an invitation to provide extensive testimony before Congress with complete immunity. Ah, well – there’s a reason I am not an author by trade…too fabulist.

I thank Snowden for his personal sacrifice. I simply wish he’d managed his escape with a bit more alacrity and hope he manages his ongoing evasion of government “retribution” (read “revenge”) with less drama than we’ve witnessed thus far.

HappyBlogFriend (profile) says:

I made a Choose Your Own Adventure scenario that puts people in a blow-the-whistle-or-leak situation similar to Snowden’s.

I thought this would help people understand that whistleblowing is NOT a viable option, that it is actually a DANGEROUS option that often leads to prosecution or unemployment. But I think most people who play through the game get pissed off when they see that whistleblowing leads to some pretty undesirable consequences. Is there any way to convince people that this is true?

Mike Lovett (profile) says:

Snowden modern day hero

Some people think of sports celebrities as heroes. I don’t. Most people think of military men and women as being heroes. I do. And a certain number of people think that Edward Snowden is a true, modern day hero. And so do I.
In the years to come, regardless of what happens to Snowden in legal circles, he will justifiably be martyred as a young man who risked his freedom and the ire of political czars to do the right thing, regardless of what would happen to him. He didn’t do it for money or fame. He did it because he saw something terribly wrong with the surveillance of Americans on a very big scale.
I applaud him, and I hope to see his name chiseled in stone somewhere in the USA as a true American hero.

John Lewis says:

Whistleblower Options

Like so many things on the Internet these days, this is a poorly researched and completely inaccurate report. If the writer has been bothered to take the time, he could have gone to Booz Allen’s website and read that organization’s Code of Ethics. After all, Mr. Snowden was an employee of that company. Had the writer done so, he would have seen an option that is very common in the corporate world – a completely confidential and anonymous reporting option. Here’s the link:

https://boozallen.alertline.com/gcs/welcome

Since I operate a company that provides this type of service (albeit not the one used in this case), I can vouch for the fact that this is a real and secure way to express concerns. A message can be sent from any computer – be it a public library or an encrypted device – and our customers must contractually agree that they will not attempt to trace a message.

So please spare me this drivel that there wasn’t a safe way for him to first try the chain of command There was. Why didn;t he> The fact is that Mr. Snowden violated his oath and his employer’s code of ethics. We work with courageous people everyday who have concerns about their employees conduct – but they don’t go running to the Russians or the Chinese with their concerns.

Rikuo (profile) says:

Re: Whistleblower Options

“our customers must contractually agree that they will not attempt to trace a message. “

Did you honestly just type that without thinking about it? The Snowden leaks have revealed that the NSA is quite happy to violate every privacy law there is on the books, up to and including the 4th Amendment, without batting an eye. If Snowden had gone the route you mention, it is simply inconceivable that the NSA WOULDN’T have traced it, despite any contracts there are.
When the leaks have revealed that the legal route of whistleblowing is corrupt, all the way up to the President of the United States, then…well you figure it out.

JMT says:

Re: Whistleblower Options

“…our customers must contractually agree that they will not attempt to trace a message.”

I?m not sure if you?re so ignorant you actually believe that agreement would be honored, or if you know it won?t be but think you we?re stupid enough to believe you. Since you claim to be in the game, I lean towards the latter.

“So please spare me this drivel that there wasn’t a safe way for him to first try the chain of command There was.”

Even if it was as safe as you claim, the article clearly explains why it wouldn?t be effective. What?s the point of whistleblowing directly to people who don?t believe they?re doing anything wrong?

“The fact is that Mr. Snowden violated his oath and his employer’s code of ethics.”

And nobody has claimed otherwise, it?s just completely irrelevant. Most people who take these oaths don?t expect to find themselves concealing behavior that they consider to be immoral, unconstitutional and completely against the public?s interest.

“We work with courageous people everyday who have concerns about their employees conduct – but they don’t go running to the Russians or the Chinese with their concerns.”

He didn?t don’t go running to the Russians or the Chinese with his concerns, he went public with his concerns. There is absolutely no evidence to suggest the Russians or Chinese have benefited from this in any way. Feel free to provide any evidence to the contrary.

Disgusted (profile) says:

The Real Policy

IMHO, we effectively have NO whistleblower policy, that they say we do is just political snow. As demonstrated by the results of past efforts, the policy, as executed, reads:

1. Find blower of whistle
3. Grab him, her, or it FAST
2. Grab the information and bury IT FAST
4. Bury blower in the deepest prison
5. Throw away key, or, better, melt it down.
6. TELL NO ONE – EVER, and admit nothing!

Snowden was smart to be out of the country BEFORE the excrement hit the rotating air moving device.

As it stands, Russia is about the only place he can be relatively safe. I doubt if even our magnificent Gummint is stupid enough to start a war over him – at least I hope so.

I don’t, however, dismiss the possibility of a black-op snatch and grab mission inside Russian territory. I think the US government is arrogant enough to try it. With luck, they’ll find out the hard way what a Gulag is all about.
.

T. Stark says:

I disagree...to a point

I disagree that there were no other avenues. Congress? Nope. Higher ups at the NSA? No, again. Selective leaks to US newspapers, similar to what happened anyway? yes. For chrissakes, man if you really gave a crap, you would have done what officials have done since the beginning of time. You leak information to the press. You leak the bits that will outrage the American public the most while damaging the country the least. And if, likely, when you get caught, you have the g*damn courage of your conviction to stay in the country, instead of shuttling between the only countries that have worse records than the US in regards to privacy concerns. I’m amazed he didn’t end up in Rwanda or Zimbabwe. What a chickensh*t. I am grateful that the information was leaked, but have zero respect for the man, or the way he went about it.

T. Stark says:

Re: Re: I disagree...to a point

How exactly is the NSA worse off by Snowden not being in jail. Can you tell me this?

First off, have you ever heard of the term “martyr”? If he had stuck around, gradually releasing information, starting with the relevant info already released, which already did all the damage it will ever do, it would have made no difference. Once caught, he would have become the exact same figurehead that he is now, with the added benefit of being involved in the criminal justice system. This means some of those, like ME who despise the man, and there are many of us, would instead sympathize and view him as a hero. With public sentiment being against a strong persecution, he could have cut a deal that allowed him to plea bargain away the remaining morsels of information in return for a slap on the wrist. Meanwhile, more egregious offenders like freaking Russia, China and his current home (which has an equally deplorable record) couldn’t use him as propaganda to feed their own egos. Instead, many Americans view him as a coward and an enemy of the country, in spite of all the good he did. All he offers now is a big symbolic poke in the eye to Uncle Sam that makes some simpletons feel good.

nasch (profile) says:

Re: Re: Re: I disagree...to a point

I read your comment more carefully. I thought you were the one who wanted him to take a courageous stand, but now you want him to give up his remaining information to avoid punishment? How is that different from leaving the country to avoid punishment, morally?

All he offers now is a big symbolic poke in the eye to Uncle Sam that makes some simpletons feel good.

You’re misunderstanding the situation if you think the only effect of the Snowden leaks is to “make some simpletons feel good”.

That One Guy (profile) says:

Re: One word:

Manning.

Manning provided a perfect example of the kind of treatment Snowden could have expected if he’d have been stupid enough to stick around in the US and do things as you suggested.

His limited leaks would have been stopped very quickly, as you can bet the NSA would put all their resources into finding and silencing someone exposing their secrets like that.

What information he had managed to put out in that short period of time would have been passed off as ‘not as bad as it looks'(just like the government tried to do when the the leaks started coming out), and the NSA/government would have just weathered the temporary public backlash(something they did do with the Manning leaks, but can’t do with the gradual trickle-style Snowden leaks).

Snowden himself likely would have very quickly found himself in a cell somewhere for several years, while they both pumped him for information, and made an example of him as to what happens to whistleblowers who make the government look bad. Whether or not he’d ever see the inside of a court-room before, during, or after this period is debatable.

You, and others like you call him a coward for refusing to stay in the country so the government could get to him, but I say such an action merely implies a working brain, as only the foolish want to be martyrs for a cause, rather than staying alive and free so they can help it grow.

For chrissakes, man if you really gave a crap, you would have done what officials have done since the beginning of time. You leak information to the press.

I can’t help but notice that you’re saying he should have done… exactly what he did do, so you seem to be angry not because of his leaks, but rather that he was smart enough to take himself out of the reach of the USG afterwards.

Rikuo (profile) says:

Re: I disagree...to a point

“instead of shuttling between the only countries that have worse records than the US in regards to privacy concerns.”

If by this you mean Russia…it was never Snowden’s intention to stay in Russia. Russia was only meant to be a layover on his way to some other nation, but he got trapped there when the US government revoked his passport.

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