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If you visited this site yesterday or The New York Times or The Guardian, you are likely aware that a person was stopped at an airport in London, detained, and British officials confiscated classified documents supposedly carried in encrypted storage devices. These documents related to NSA programs dealing with the collection of metadata to prevent terrorism events and who knows what else.

It was amateur hour.

The events raised a lot of questions in my mind, some of which will be dealt with in this diary, and others, hopefully, in the comments that follow:

1.  I didn't vote for the leakers; and I certainly don't think, given their actions, that they should be making policy decisions on my behalf. Rather, I voted for legislators and a President who erected a Whistleblower procedure to handle these matters. I would like to see those procedures followed; don't you?

2.  If you don't, what changes to the Whistleblower policies would you like to see occur?  

3.  If British Intelligence figured out that the detained traveler carried classified American material, why couldn't the Chinese, North Koreans or Russians?

4.  Would all of the Soap Opera yesterday, and, indeed, all of the Soap Opera since the inception of the leaks have occurred if proper Whistleblowing procedures had been used?

5.  When a person without authorization takes classified documents from the Government, does that person owe a duty of care to act reasonably with the documents?

6.  As a site determined to promote more and better Democrats, and, at least in my mind, more and better Government, shouldn't we be trumpeting Whistleblower procedures and not alienating people from them?

 

Taking the last question first, I believe that a sound Government has ample and well-thought-out whistleblower protections. In this country, Federal law has provided what is called the Whistleblower Protection Act since 1989. In 2012, President Barack Obama expanded upon that with the Whistleblower Protection Enhancement Act to much acclaim from such organizations as Climate Science Watch and the Government Accountability Project. Moreover, there is a regulatory lattice-work of provisions allowing for everyone from a Federal Civil Service employee to a Department of Defense contractor to use a procedure, prescribed by law, allowing him or her to blow the whistle on governmental illegality, fraud or corruption. Moreover, if you are a private employee and see your employer violating Federal laws or regulations dealing with occupational safety, the EPA, securities laws, FAA regulations, government bidding, and many other areas, you are also afforded protections.      

These procedures are real. The protections are there. In fact, the Federal Government in 2012 likely set an all-time record for whistleblowers. There were probably well over 1,000 individuals who blew the whistle on governmental or private contractor illegality in 2012. That is a trend that I'd like to see continue. On the other hand, the use of the "War on Whistleblowers" meme, to me, seems not only disproved by the facts, but also the law. Most importantly, we might see a "chilling" effect to actual, good, productive whistleblowing if that meme is allowed to distort reality.

Factually, the meme is disproved by the sheer weight of numbers. Thousands and thousands of people have claimed whistleblower status in recent years. Yet, because five or six people who have taken classified information from the Government have been prosecuted, there's supposed to be a war. Moreover, by definition, those folks weren't whistleblowers, or, in a couple cases, although they ostensibly followed the whistleblower procedures, they still stole Secret Government documents or property, which means that they might have been a whistleblower for one narrow reason, but they also committed crimes.

Over the fold, let's discuss the fourth question.
 

The fourth question was this: "Would all of the Soap Opera yesterday, and, indeed, all of the Soap Opera since the inception of the leaks have occurred if proper Whistleblowing procedures had been used?" Up until now, I've avoided using names, as that seems to get people riled up around here. But for this question, I think it is necessary to name names, starting with the sad case of Bradley Manning.

I believe that if Manning had followed proper whistleblower procedure, by putting only videos, documents or other materials showing actual governmental illegality in an email to the Office of Special Counsel or the Department of Defense Inspector General, he would not only have not gone to prison, but he would've been treated as a hero by everyone (except the criminals).

In the case of Edward Snowden, I don't think he ever would have followed the Whistleblower procedures because, so far, I haven't seen anything he's disclosed that has shown illegality, corruption or fraud on the part of the Government. All he has shown so far is that the system works to find and alleviate potential privacy rights infringements. He may disagree with the policy, but the Whistleblower Protection Act does not envision simple policy disagreements as the basis for whistleblowing. This, of course, raises the question: Do we want every person working in or with the NSA to be policymakers? Another question is this: What changes to the Whistleblower statute would you like to see that would allow for policy disagreements?    

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Comment Preferences

  •  Tip Jar (20+ / 0-)

    Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

    by Tortmaster on Mon Aug 19, 2013 at 05:42:38 AM PDT

  •  Let's also keep in mind that no one... (8+ / 0-)

    has claimed that any of the stolen classified documents seized yesterday contained evidence of wrongdoing.

    I don't know what whistle blowing is supposed to have to do with this, unless we're using Karl Rove and Scooter Libby's definition of whistle blowing: leaking information for a political purpose.

    Art is the handmaid of human good.

    by joe from Lowell on Mon Aug 19, 2013 at 06:02:11 AM PDT

    •  Quite right. If there had been proof of ... (5+ / 0-)

      ... governmental illegality, I think that's what the newspapers would've led with in their coverage. That's just my speculation, though, as I've never worked for a newspaper.

      I think that the whistleblower framework is not amenable to change to make it available for disagreements in policy, especially in the areas of secret programs and government-proprietary devices. For example, the 1943 version of a whistleblower might have leaked nuclear technology just in time for the bad guys to bone up on it. On the other hand, I'm open to hear any suggestions.

      Who do we want to be our policymakers?  

      Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

      by Tortmaster on Mon Aug 19, 2013 at 06:14:20 AM PDT

      [ Parent ]

  •  Amazingly amateurish. And Greenwald's rush to get (8+ / 0-)

    online and mislead the world, about the true nature of the situation he has found himself, is like a small child misstating the facts after he's been caught in a misdeed.

    Shaking my head.

    •  Except I wouldn't compare him to a small child. (7+ / 0-)

      He is a manipulative, malicious, hateful little person.
      He knows exactly what he was doing.
      He knew the truth would come out eventually but just wanted to muddy the water before it did.
      If I had any respect for him that dishonest act would have been the last straw.
      If I had any respect for him.

      "Government targeting family members of journalists."

      Just think about that for a minute.

      Maya Angelou: "Without courage, we cannot practice any other virtue with consistency. We can't be kind, true, merciful, generous, or honest."

      by JoanMar on Mon Aug 19, 2013 at 06:21:07 AM PDT

      [ Parent ]

    •  This is my speculation, but ... (7+ / 0-)

      ... a huge and frequent motivator to lie is embarrassment. How many lies are told to save face? In this case, Greenwald may have had some hope that the devices wouldn't be confiscated. At that point, it makes sense for him to cry "foul." But, once he contacted his partner and learned that the devices were confiscated, he knew the cat was out of the bag.

      I don't think our national secrets should be trotted around willy nilly across the globe.

      That raises some additional questions in the diary, Ned Sparks, namely questions three and five:

      3.  If British Intelligence figured out that the detained traveler carried classified American material, why couldn't the Chinese, North Koreans or Russians?

      ...

      5.  When a person without authorization takes classified documents from the Government, does that person owe a duty of care to act reasonably with the documents?

      Following actual Whistleblower procedures ensures that secret documents aren't taken to Hong Kong or Russia or end up getting confiscated by a foreign national in a London airport. What if the North Koreans put two and two together and realized that Mr. Miranda was a nice chip to play?  

      Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

      by Tortmaster on Mon Aug 19, 2013 at 06:25:26 AM PDT

      [ Parent ]

      •  Exactly right. I think you're right on point. This (4+ / 0-)

        business of national security is serious business and countries like Russia and China know full well what they're dealing with. Greenwald and Snowden are out their league.

      •  If your issue is with whistleblowing procedures (1+ / 0-)
        Recommended by:
        Tortmaster

        I'm not sure why the events of yesterday are germane at all; the only government employee in this story is Snowden.

        Greenwald & Poitras are journalists taking well founded precautions based on past government actions that predate the Snowden case.  Miranda was part of those precautions, traveling on a ticket paid for by the Guardian Newspaper, carrying documents from one journalist to another.
        '
        That's all we know.
        That makes this a first amendment issue, not a whistleblowing issue.

         

        “The legitimate object of Government is to do for a community of people whatever they need to have done but cannot do at all or cannot do so well for themselves”- Lincoln

        by commonscribe on Mon Aug 19, 2013 at 09:44:25 AM PDT

        [ Parent ]

  •  Let's see how useful this diary is (2+ / 0-)
    Recommended by:
    3rdOption, Tortmaster
    These documents related to NSA programs dealing with thecollection of metadata to prevent terrorism events and who knows what else.
    1. Can you give a precise enumeration of what constitutes "metadata" as it applies to HTTP traffic captured by XKeyScore?

    2. According to the slides themselves, XKeyScore is indexing something by metadata. Is it your belief that metadata is being indexed by metadata?

    "Yes We Can!" -- Barack Obama

    by Sucker Politics on Mon Aug 19, 2013 at 06:14:40 AM PDT

    •  The definition of "metadata" that ... (2+ / 0-)
      Recommended by:
      NedSparks, Hey338Too

      ... I have always used is the one found in Smith v. Maryland, 442 U.S. 735 (1979). The Supreme Court noted:

      Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.
      In other words: an anonymous telephone number, date of call, duration, number called. Specifically, though, I don't know any Secret information, so I have to give the best definition available. Since the program has been found to be constitutional, I imagine it is along those lines, so I at least have a basis for my definition. What's yours?

      Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

      by Tortmaster on Mon Aug 19, 2013 at 06:32:29 AM PDT

      [ Parent ]

  •  The most prominent leaker of the last century... (8+ / 0-)

    ...says that you are exactly, precisely, definitively wrong:

    Daniel Ellsberg, the military analyst who in 1971 leaked the top-secret Pentagon Papers detailing the history of U.S. policy in Vietnam, that unlike Bradley Manning and Edward Snowden, he "did it the wrong way" by trying first to go through proper channels — a delay that he says cost thousands of lives.

    "I really regarded [it] as anathema ... leaking as opposed to working within the system," Ellsberg says, speaking to NPR's Linda Wertheimer. "I wasted years trying to do it through channels, first within the executive branch and then with Congress."


    "Politeness is wasted on the dishonest, who will always take advantage of any well-intended concession." - Barrett Brown

    by 3rdOption on Mon Aug 19, 2013 at 06:17:36 AM PDT

    •  It was 17 years after Ellsberg ... (5+ / 0-)

      ... did what he did that the Whistleblower Protection Act first became law. The regulations now have actual time-sensitive deadlines. For example, here is what a DoD contractor can expect as a legitimate whistleblower (in pink):

      nsa5


      Do you see that deadline in there? Do you see the "Mandatory Investigation" requirement? Those didn't exist at the time Ellsberg released the Pentagon Papers.

      Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

      by Tortmaster on Mon Aug 19, 2013 at 06:47:07 AM PDT

      [ Parent ]

      •  Hah! I knew this reply was coming. (2+ / 0-)
        Recommended by:
        bluedust, TracieLynn

        I debated heading it off in my comment, but opted for brevity, and to give you the chance to step into the trap.

        (unless someone does this for me in the next couple of hours, I'll pick up where I left off, but this is the spot where I link to articles delineating the persecution of current whistleblowers, recent stories of folks who tried to follow the channels listed in the above comment, and who's careers were derailed, and who were personally persecuted for having the temerity to report govt abuse and illegality. I have an appointment, and thus to not have the time to do the citations which belong in this placeholder.)

        We've seen case after case of government employees who tried to do it the "right" way and suffered for it, with not a dent made in government policy and action.

        Rape victims are victimized by their chain of command for following UCMJ protocol, thus members of Congress who believe in Justice have opted to take this crime out of the chain of command within the military.

        Maddow has been reporting on the FBI's inability to police itself, noting that every time it has investigated an FBI officer shooting a civilian, the FBI officer was found to be in the right. Every time.

        No entity can police itself.

        Thus, your assertion that "the laws have changed since Ellsberg" is bullshit, because the outcomes haven't.

        Do you seriously think that Ellsberg forgot to take the new legal regime into consideration when he made his comments? 'Cause he's willfully ignorant of the issues of "modern" leaking and whistleblowing, or something?

        Your position is not to be taken seriously on this site, and serves as nothing but a distraction from the crimes of our own government.


        "Politeness is wasted on the dishonest, who will always take advantage of any well-intended concession." - Barrett Brown

        by 3rdOption on Mon Aug 19, 2013 at 07:18:15 AM PDT

        [ Parent ]

        •  Who said an "entity can ... (0+ / 0-)

          ... police itself"? That's a strawman on your part. I've said all along--for months--that there have been three branches of the Government policing this particular NSA program. Additionally, there are Whistleblower procedures. (So, with the Whistleblower procedures, the "entity" is not policing itself, the parts and pieces of the entity are policing the entity.).

          I've seen the "case after case" that you write about, and you don't cite those five or six cases because (1) there are so few of them, (2) they pleaded guilty to a crime, or (3) he is currently on the lam in Russia. You still haven't figured out the difference between a criminal and a whistleblower.

          Moreover, if you haven't noticed, whistleblowing has worked to shine a light on sexual harrassment in the military and the problems with the FBI. How do you think those problems came to light. That's how good whistleblowing works. Has there been some retaliation in the military? I have no doubt, but those can be handled and there is a procedure to handle it.

          What do you suggest? That Whistleblowers become political martyrs and spend years in prison for your pleasure, or a better system that protects them?  

          Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

          by Tortmaster on Mon Aug 19, 2013 at 09:22:39 AM PDT

          [ Parent ]

          •  Bad-faith commenting. (1+ / 0-)
            Recommended by:
            Tortmaster

            I was involved in a heated debate a few days ago in another diary about "bad-faith commenters", and you just provided a textbook mini-case in such behavior. First:

            ...you don't cite those five or six cases because...
            I didn't cite anything because, as I said, I had an appointment, one which "someone being wrong on the internet" does not trump.

            If you were arguing in good faith, you wouldn't even have mentioned it.

            I'm back now. Second:

            Who said an "entity can police itself"? That's a strawman on your part.
            A Strawman is a bogus, intentionally flawed misstatement of an opponent's position, falsely attributed to that opponent, which is then easily shot down, thus falsely discrediting said opponent's actual position.

            I did not attribute the self-policing argument to you. I didn't imply that it was your position. The "an entity can't police itself" thesis is mine, I didn't put the opposite words in your mouth so that I could counter it. I started that logical thread.

            Thus, no Straw Man.

            Now, away from debate-meta, and back to the substance of the actual issue:

            I've said all along--for months--that there have been three branches of the Government policing this particular NSA program.
            And they have clearly failed.

            The genius of the way Greenwald is pacing the revelations is that he waits for government officials, often the President himself, to come out publicly and issue a declaration about the innocuousness of the NSA programs, and then Greenwald releases more classified info that directly contradicts what the President, or whoever is defending this indefensible mess, has just proclaimed.

            This is like slo-mo Daily Show, where Stewart first shows an official bullshitting, and then shows clip after clip of that same official saying exactly the opposite.

            President Obama is simply decimating his credibility, and the worldwide credibility of the US, not only by making public pronouncements (like on Leno) that turn out to be patently false, but by taking ridiculous actions, like the coordinated grounding of Morales' plane, and now coordinating the unjustifiable shakedown of Greenwald's partner.

            I know, I know. We don't have definitive proof, that would stand up in court, that President Obama himself concocted and demanded implementation of these fuckups by executive order. Of course, all of these countries are taking these embarrassing and foolish actions of their own accord, with no Washington influence being exerted whatsoever...

            And it was crazy talk when folks here pointed out that the nationwide attacks on #Occupy appeared coordinated, right up until one of the mayors talked about a conference call with DHS helping them coordinate the crackdowns.

            But back to the salient point:

            Drake was charged in 2010 under the Espionage Act, a law passed in 1917 to prosecute spies. Drake was not a spy, but a government employee who tried unsuccessfully to report waste and abuse through official channels before contacting a Baltimore Sun reporter. The government's case eventually collapsed, with Drake only pleading guilty to a misdemeanor of "exceeding the authorized use of a computer."

            "He was vindicated in the end, essentially," Daniel Ellsberg, the whistleblower behind the Pentagon Papers, said in the film. "But [Drake] had his life, for the moment, ruined."

            emphasis mine
            From Huffingtonpost.

            That's just one example, and I'm simply not going to go through the process of researching and documenting every case we've been hearing about over and over of whistleblowers who attempt to whistleblow using the in-house system, who are either ignored or persecuted, and thus become leakers.

            These people know, before they speak out, that they are ending their careers, probably their freedom, and possibly their lives, by doing so. They believe that the information is so important that they are willing to do so in spite of the dangers.

            This is the definition of heroism.

            Further, this is also a case where you must commit a crime in order to do the right thing. This, for these individuals, is a mark of honor, not dishonor.

            What do you suggest? That Whistleblowers become political martyrs and spend years in prison for your pleasure...
            "For my pleasure"???

            But yes, if that sacrifice is required, to do the right thing, then they should make it, and a better President should pardon them.

            ...or a better system that protects them?
            In an ideal world, this is of course preferable. But under this President, and under this Congress, with this intelligence regime, it will not happen.

            Thus, whistleblowers sacrificing themselves to become leakers is the only option.

            Attacking their character, and rationalizing their persecution is not supportive of our democracy.




            Moreover, if you haven't noticed, whistleblowing has worked to shine a light on sexual harrassment in the military and the problems with the FBI. How do you think those problems came to light. That's how good whistleblowing works. Has there been some retaliation in the military? I have no doubt, but those can be handled and there is a procedure to handle it.
            As a side note to the focus of this discussion, you should not make statements like these. You cannot make the claim that whistleblowing is working to solve the rape problem in the military. The military has no intention of resolving this issue in a way that does not perpetuate the intimidation of victims, and the command protection of perpetrators.

            Further, it is mind-boggling, and credibility destroying to state that "Has there been some retaliation in the military? I have no doubt, but those can be handled and there is a procedure to handle it."

            "Some" retaliation? Procedures to "handle it"???

            Minimizing the rape and retaliation situation in the military, for any reason, is ... really ... bad.


            "Politeness is wasted on the dishonest, who will always take advantage of any well-intended concession." - Barrett Brown

            by 3rdOption on Mon Aug 19, 2013 at 11:28:09 AM PDT

            [ Parent ]

  •  I Don't Have Any Faith (5+ / 0-)

    In the ability of government to police itself. I just don't think it can or will effectively happen, whistleblower protections or not. I'm grateful that Mr. Snowden brought new information about NSA activities to light. This info is helping me make informed decisions as a voter going into 2014.

    "I'll believe that corporations are people when I see Rick Perry execute one."

    by bink on Mon Aug 19, 2013 at 06:28:54 AM PDT

    •  Certainly Not a Government Whose Design Was (1+ / 0-)
      Recommended by:
      tardis10

      almost perfectly ignorant of the world of its own day. Never mind the 3 technological epochs that came after it, and the one whose rulers it governs today.

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

      by Gooserock on Mon Aug 19, 2013 at 06:34:22 AM PDT

      [ Parent ]

    •  I completely disagree, bink, because ... (4+ / 0-)
      Recommended by:
      mikidee, VClib, Hey338Too, guyeda

      ... I think we need a big Government, and I think that that Government must, by necessity, keep some secrets. The issue in my mind is how best to keep the legal, important secrets while ferreting out the illegalities.

      I also believe that most federal employees are professionals, who take their oath and their responsibilities seriously, and who, if they don't, face loss of employment, fines and even prison if they misbehave. That means that everyone in the chain of command has skin in the game. Moreover, in the specific case of this NSA program, there are three branches of Government providing oversight (on top of the potential for legitimate whistleblowers).  

      Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

      by Tortmaster on Mon Aug 19, 2013 at 06:53:26 AM PDT

      [ Parent ]

  •  Snowden Could Have Gone To The IG (4+ / 0-)

    and his congressman, without stealing classified material.  The IG would have investigated.  Snowden could have gone to his supervisors or the head of his company.  He could have gone to Senator Wyden or Senator Udall.  He could have done many things.  What he should not have done was steal classified documents.  

    "Don't Let Them Catch You With Your Eyes Closed"

    by rssrai on Mon Aug 19, 2013 at 06:32:50 AM PDT

  •  Diary is almost perfect. (3+ / 0-)
    Recommended by:
    jbob, TracieLynn, Roadbed Guy

    It would be perfect in German.

    look for my eSci diary series Thursday evening.

    by FishOutofWater on Mon Aug 19, 2013 at 06:41:23 AM PDT

  •  I don't want this "fixed", (8+ / 0-)

    I want it stopped.  The 4th Amendment does't not need to be re-interpreted by a secret court.  I do not care about Mr. Snowden's hero / villain status.  Had he gone through channels he would have been eaten alive by the system and his revelations "disappeared" forever into the secret records of the secret court.
      If you do not believe what is happening is wrong, and if you don't think that future republican administrations will use this against effective dissenters ... well I am astounded, and baffled.  
      Most of the great wrongs we have been able to right have been the result of someone breaking the law.  That is part of the progressive heritage.
       I would ask that you search your heart and try to see the danger to us all in this outrage.  If we can't find common ground in supporting and defending the Constitution and the Bill of Rights I fear we are going to lose forever something that future generations are going to have to pay a terrible price to regain.

    River are horses and kayaks are their saddles
       
    •  The technology is out there. (2+ / 0-)
      Recommended by:
      Hey338Too, guyeda

      It will be with us forever. The next Republican administration can start it right back up after the next terror attack or made-up war. Right now, there are safeguards in effect and Executive precedent on how the program is run, along with a web of Attorney-General-drafted regulations and actual whistleblower protections.

      Slippery slope arguments are what turn bananas into deadly weapons; that's the kind of argument Scalia used during the ObamaCare hearing to claim that we'd all be forced to buy broccoli next.  

      I see an ingenious program that balances privacy rights with the government interest in protecting Americans and internationals from getting blown up. If a Government has the ability to protect lives while not violating anyone's privacy rights, shouldn't the Government do so? Wouldn't the Government that didn't be negligent?

      Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

      by Tortmaster on Mon Aug 19, 2013 at 07:16:18 AM PDT

      [ Parent ]

      •  Here's the rub (2+ / 0-)
        Recommended by:
        Tortmaster, guyeda
        If a Government has the ability to protect lives while not violating anyone's privacy rights, shouldn't the Government do so?

        The premise is that it is legal and constitutional. Is it really? How would anyone know that? One can assume that if one assumes those operating the system are in fact trustworthy but I believe there is ample evidence in the nation's history to be very skeptical.

        If it's all above board then it should be available for legal challenge. Maybe it's all neat and necessary but I believe it's a dangerous step to go with "Trust us, we're the good guys."

        Growth for the sake of growth is the ideology of the cancer cell. --Edward Abbey

        by ricklewsive on Mon Aug 19, 2013 at 07:29:58 AM PDT

        [ Parent ]

        •  It has taken a long long time, (2+ / 0-)
          Recommended by:
          ricklewsive, guyeda

          but here in this country we finally learned that while rule of law is imperfect and need periodic tweeks (and sometimes major overhauls) it is the only way of insuring freedom.  Rule by Men (or women) be it by kings and queens or by any other non-accountable elite is just wrong.  We all know this in our bones.
            To stop this we must act like one people speaking with one voice.  Our other fights can wait.
           

        •  I think there is ample evidence ... (3+ / 0-)
          Recommended by:
          ricklewsive, guyeda, Wordsinthewind

          ... in our history to assume that those operating the system are trustworthy. You can point to certain few small-time events, which were, each, in turn, uncovered. But for the most part there are decades and decades throughout our history in which there were no Nixons or Hoovers. I think you are picking out a couple of stars that have gone super nova to imply that all the stars in the night sky are exploding all the time.

          We have seen the safeguards working for this particular system. Snowden proved that! What, in the future, is going to change? Will we not have whistleblowers in the future? Will all the honorable people in the NSA retire at once?

          I think the more dangerous path--by far--is to promote fear of Government based upon what happened for a few years in the 1960s and 1970s. A lot has changed since then.    

          Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

          by Tortmaster on Mon Aug 19, 2013 at 09:10:54 AM PDT

          [ Parent ]

    •  Snowden (0+ / 0-)

      But in this case Mr. Snowden could have kept secret documents, and used the system and if the system messed him over then released them. At that point he would have had the moral right to do so.  Refusing to use the system takes that away.

  •  I admire your attempt (6+ / 0-)

    to create a civil discussion of the matter.

    While the whistleblower protections may in fact work for certain types of problems (theft, graft, civil right abuses, etc.) I have little faith that someone witnessing what they believe to be programs and policies that may violate the constitution will get anywhere within the system as it is designed.

    We have a congress that has a responsibility to oversee these programs and they are doing a pretty poor job of it. Many seem to operate with a "Don't tell me things I don't want to know" attitude, while those who might know things that disturb them are gagged by the hyper secrecy that shrouds the whole thing. If even Senators and Representatives are forbidden from serious challenges to these programs what are the chances of some low GS person who might challenge the system?

    The surveillance systems were set up very carefully to keep them well hidden not only from the "enemy", but also from constitutional challenge. To me that is the most disturbing part of this whole issue. No one can challenge what they believe to be privacy violations because no one can prove their privacy was violated. Lawmakers cannot challenge the legality of the programs because they cannot reveal that the programs exist.

    Is this all because our enemies can't know that we're listening? I really cannot buy that. Serious threats to the nation are not stupid. Of course they assume their electronic communications are monitored.

    I am not saying that this massive surveillance system is all bad or that it's going away. Once government has a capability they are not going to let it collect dust on some shelf. But if it is as vital and legal as the proponents maintain then let's get the fact that they exist and their legal basis all out in the open and let the constitutional folks scrutinize and challenge the legality. What I see is the intel folks do not want that scrutiny. I simply cannot see how anyone on the inside can initiate a challenge to the legality of a totally secret system. Can you?

    Growth for the sake of growth is the ideology of the cancer cell. --Edward Abbey

    by ricklewsive on Mon Aug 19, 2013 at 07:06:21 AM PDT

    •  The system is a legal black hole (2+ / 0-)
      Recommended by:
      paulbkk, TracieLynn

      There is no way to fight it from the inside.

      No light will ever escape the secrecy by following the rules.

      look for my eSci diary series Thursday evening.

      by FishOutofWater on Mon Aug 19, 2013 at 07:10:03 AM PDT

      [ Parent ]

    •  Remember the diaries and ... (4+ / 0-)
      Recommended by:
      ricklewsive, Hey338Too, guyeda, Tony Situ

      ... comments, ricklewsive, claiming that there were 90,000 NSA employees and thousands of people with Top Secret clearances? I don't know how many people work at the NSA, but each one of them is a potential whistleblower. Each one, if he or she files a complaint, must be responded to within a certain time frame. Their claims must be investigated unless they are frivolous. I trust those people a hell of a lot more than I trust any of the leakers.

      This is an interesting statement:  "No one can challenge what they believe to be privacy violations because no one can prove their privacy was violated." You are correct about that, and that's something to think about. At the present time, it seems that the system is functioning with the Government turning itself in. I know that Civil Liberties Protection Officers are used in the system, but I don't know how expansive their roles are.

      I agree that once a technology is discovered, it is never completely undiscovered. The atom bomb comes to mind. My belief is that the genie in this bottle can't be kept inside, but it can be used for good. At a minimum, it makes it much more difficult for terrorists to communicate inside our borders. (I agree that enemies know that we are monitoring them.)

      Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

      by Tortmaster on Mon Aug 19, 2013 at 07:49:11 AM PDT

      [ Parent ]

  •  Snowden seems to have been concerned (4+ / 0-)

    that the programs he had knowledge of had the potential to violate the civil rights of American citizens.  He also seemed to be interested in exposing the programs so that the general public would be able to have some voice over whether such intrusions were acceptable.  Since he likely had knowledge that all of the operations released so far were authorized by all three  branches of the government, i.e., no evidence of waste, fraud, or corruption, why would he believe that the whistleblower process would allow him to achieve his goal of exposing these programs?  Do you believe had he gone through the whistleblower process that this information would have been released?

    •  Perhaps or perhaps not, guyeda. (3+ / 0-)
      Recommended by:
      guyeda, Hey338Too, Tony Situ

      What if he went to Senators Wyden and Udall with the information? I can't predict the path of that not-future. I'm pretty sure he would've had a full (but likely private) hearing of his grievances in the appropriate Senate subcommittee. What would've come of that? Who knows. I know it wouldn't have created another political martyr who faces decades in prison.

      Was Snowden also interested in giving Russia, China and al Qaeda that information? The Whistleblower procedure would've stopped that. Like I said in the diary: I vote for legislators and Presidents, not Snowdens and Mannings, to make policy decisions. We have judges and justices to determine constitutionality, and we have the executive branch to enforce the regulations. Snowden was the Charles Bronson-type vigilante who took all of the law into his own hands.

       

      Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

      by Tortmaster on Mon Aug 19, 2013 at 08:03:42 AM PDT

      [ Parent ]

      •  It's a tough call isn't it? (3+ / 0-)
        Recommended by:
        ricklewsive, Tortmaster, Tony Situ

        I'm not happy that Snowden decided for the rest of us where the balance between transparency and operational secrecy should lie.  I'm also not happy with the fact that up until this information was released, the public had no knowledge of the extent of the authorizations granted to the NSA and no remedy for any violations that would have resulted if the system was abused.

        As for Wyden, he already knew about these operations didn't he?  He would have had no more means of releasing this information than he did prior to any meeting with Snowden.

        •  That is an excellent point. (2+ / 0-)
          Recommended by:
          guyeda, Tortmaster

          What can even a US Senator do if they believe a secret program is in violation of the constitution? The Senator cannot know of the program without being bound by the secrecy. Could a Senator do anything without facing prosecution for revealing state secrets? Can a legislator somehow push the matter into the public courts, the only place where the constitutional questions can be answered? I am not seeing a pathway for these programs to be challenged other than outside the system.

          Growth for the sake of growth is the ideology of the cancer cell. --Edward Abbey

          by ricklewsive on Mon Aug 19, 2013 at 08:37:08 AM PDT

          [ Parent ]

          •  An individual Senator's power (1+ / 0-)
            Recommended by:
            Tortmaster

            appears to be pretty limited.  The intel. committee can decide on whether or not to contest the classified status of information on the floor, but I don't think it's ever been done.  Most politicians also do have a substantial respect for the need for operational secrecy, particularly if agency heads are telling them it's vital for national security interests.  Wyden's views were covered in a recent Rolling Stone interview.

          •  Lawfare had an interesting back-and-forth about (3+ / 0-)
            Recommended by:
            ricklewsive, guyeda, Tortmaster

            this in the context of the Speech and Debate clause a while back.

            Here's the Lawfare excerpt of an FP article by Stuart Ackerman (have to sign up to read Ackerman's article).

            Here's an excerpt from Michael Stern in response ("used to serve in the General Counsel’s office of the House of Representatives and who now blogs at Point of Order on the law relating to legislatures") - full response is blocked for me .....

            Bottom line - not so sure Wyden could have disclosed much without running into a shitload of political problems. Could/should/would he have pounded on the table a little louder to force some action, especially last year as things were being extended? I'm fairly certain he would say he did.

            As did many other people and civil liberties' groups (see, e.g., REPORT ON THE  FISA AMENDMENTS ACT OF 2008  THE CONSTITUTION PROJECT’S  LIBERTY AND SECURITY COMMITTEE  September 6, 2012).

            For some reason (a Presidential election, maybe?) the public wasn't paying attention ....

            Which does not, IMNSHO, justify Snowden's disclosures in the least.

            Context can be a bitch.

            Out with the gloomage - in with the plumage!

            by mikidee on Mon Aug 19, 2013 at 09:03:08 AM PDT

            [ Parent ]

        •  If you watch the Senator's ... (3+ / 0-)
          Recommended by:
          mikidee, ricklewsive, guyeda

          ... questioning of Clapper, you can see how he has a way to deal with the secrecy. Clapper was placed in a Catch-22 situation. No matter how he responded to Senator Wyden's question, he was going to be in trouble.

          "Yes" -- violates his duty to protect classified information.

          "I can't testify to that because it is classified" -- violates his duty to protect classified information.

          "I cannot admit or deny that." -- violates his duty to protect classified information.

          "No, not wittingly ...." -- is basically a lie to Congress.

          The Senator's question was the spy version of "Have you stopped beating your wife." Any answer other than "no" is validation that the program existed. The mere fact that Senator Wyden asked such a specific question was enough to get reporters asking questions. Where there's a will, there's a way.

          Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

          by Tortmaster on Mon Aug 19, 2013 at 09:01:16 AM PDT

          [ Parent ]

    •  Snowden had knowledge (0+ / 0-)

      But how does a low level guy on a temporary contract actually know about this top, top, top secret stuff?

      As to his goal, I am leery of martyrs in general. Why should I trust his motives anymore than the government? If we can't trust the government to use power wisely, why should we trust a lone person?

      And that this great hero for freedom chose to find succor and comfort from China. China which considers human rights a dangerous western influence?  And when they wouldn't play, he goes to Russia, Putin's Russia, no less.

      Generally speaking, if you are committed to ensuring we don't turn into a dangerous, dictatorial spy state, you don't seek help from a dangerous, dictatorial spy.

      And  Putin is cold war KGB. Quintessential KGB. He is also a dictator. In the full Qaddafi sense of the word. Russia has poisoned journalists and leaders of other countries.

      I have trouble accepting a charitable interpretation of Snowden's actions given his choice of friends.  

  •  How does this negate real journalism? (3+ / 0-)
    Recommended by:
    Tortmaster, guyeda, voroki

    Journalists regularly rely on people deep within an organization who are willing to talk -- otherwise, they're just reprinting press releases and propaganda from the "official sources."

    I'm thinking, for example, of "Deep Throat" who was the primary source for Woodward & Bernstein's expose of the Watergate scandal.

    There are no "official channels" protecting journalists -- on the contrary, at present journalists themselves are subject to arrest and prosecution for doing their jobs (example: Wisconsin). And the protections for inside whistleblowers are, from all accounts, woefully inadequate and impractical. They exist on paper, but many people who have tried to use them find themselves out on the street, villified, and sometimes in danger for their lives.

    •  That is one of the biggest ... (1+ / 0-)
      Recommended by:
      guyeda

      ... problems that needs to be tackled, rugbymom. Although whistleblowing to the Office of Special Counsel is at record highs, which would seem to indicate that there is a willingness to do the right thing, there are still polls that show a large segment of workers believe that they won't be protected. That's what needs to change to establish and maintain a fully-functioning Whistleblower Program.  

      As far as journalism, there will always be a privilege for a reporter's sources. On the other hand, if a reporter is carting around evidence of a crime or Top Secret Government files, they can be confiscated just like it was you or me.

      Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

      by Tortmaster on Mon Aug 19, 2013 at 10:30:31 AM PDT

      [ Parent ]

  •  Why is he entitled to decide? (0+ / 0-)

    The argument is that leakers should not be prosecuted because they keep the system honest. But who keeps them honest? Why does Mr. Snowden get the right to decide what we need to know?

    Because I assume none of us is for total transparency. We wouldn't have wanted the Nazi's to know we had the enigma machine would we? We don't want everyone to know how our planes work or who our undercover spies are. We don't want a non-state actor with a grudge knowing how to hack our grid etc.

    So none of us is for transparency. By saying yes to leakers, we are saying some select few get to decide that, but not the ones who work for the government. Not people who will face any form of accountability. No boss to check them. No voters. Not even a court of law because consequences are so 20th century.
    No, the only reason I am given to trust them, is just their own glorious selves. Because they are so good. (and if they are not, well that's just persecution, isn't it?)

    I am not at all comfortable with this. And the motives are entirely about these "heroes" idea of how things should work.  (I don't think it is a coincidence that both Assange, Manning and Snowden are all young, white men).  

    Assange as well as letting loose documents which could identify sources for our operations, let out diplomatic secrets. That's like releasing the rough draft of an article and then judging a journalist on it. There is a reason drafts are drafts and diplomacy can not be done without a lot of edits. A lot.

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