Assessing the Candidates: Obama’s Whistleblower War Leaves Dangerous Legacy for Future Presidents

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Assessing the Candidates: Obama’s Whistleblower War Leaves Dangerous Legacy for Future Presidents

'It’s an open question as to whether any future president could be more aggressive than Obama in going after whistleblowers. But based on the vengeful views of many of the large crop of Republican candidates and on Democratic front-runner Hillary Clinton’s tough statements on Edward Snowden’s NSA spying disclosures, prospects are not good for a sharp departure from the whistleblower crackdown of the last six years.' (Photo: Laura Poitras)

Here’s the thing about President Obama’s war on whistleblowers: In bringing espionage charges in nine cases involving disclosures or alleged misuse of classified information, the current administration has set a floor, rather than a ceiling, on the number and types of whistleblower espionage cases a future President can bring.

And here’s another thing: With leaders of both political parties having either kept silent or cheered on the Obama administration’s unprecedented crackdown on whistleblowers, who in high position in Congress would have one shred of moral authority or credibility to challenge a future president’s excesses under the Espionage Act? On the question of keeping American citizens in the dark and of punishing whistleblowers who dare to enlighten them, we truly have bipartisan authoritarianism.

And then a third thing: Don’t count much on major U.S. news media for any meaningful oversight of, and opposition to, the treatment of whistleblowers under future presidents. The mainstream press and big-name journalists — with some intermittent, notable exceptions such as these two New York Times editorials andthis Newark Star-Ledger editorial — have largely ignored the jail-the-whistleblowers policies of the Obama administration. Or, worse, as we’ve reported before, some of the most prominent names in the media joined elected and appointed government officials in calling for harsh penalties for Edward Snowden, Chelsea Manning, Julian Assange and Wikileaks, and others whom they claim (without proof) to have endangered U.S. national security by providing classified information to the news media.

With his Justice Department having produced three times as many Espionage Act indictments for classified document disclosure as all other administrations combined since the passage of that legislation back in 1917, Obama has opened the door for his successors to continue — and even expand — the assault on national security state whistleblowers who act in the public interest.

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Would any of the announced presidential candidates close that door after Obama leaves office in January 2017? Again, as with leading journalists and members of Congress, don’t count on it.

It’s an open question as to whether any future president could be more aggressive than Obama in going after whistleblowers. But based on the vengeful views of many of the large crop of Republican candidates and on Democratic front-runner Hillary Clinton’s tough statements on Edward Snowden’s NSA spying disclosures, prospects are not good for a sharp departure from the whistleblower crackdown of the last six years. Clinton and leading Republican candidates take the hard line that Snowden committed a serious crime and must be punished for it, with no chance of leniency.

Ultimately — as is the case with the ever-growing campaigns against the Trans-Pacific Partnership and National Security Agency spying, for example — it is not presidents or Congress, or the mainstream press, but an aroused citizenry and activist organizations with petitions, street protests, sit-ins, lobbying, etc. that can at least impede such undemocratic programs as the war on whistleblowers.

It also, though, might help if there were a president and Justice Department that were at least somewhat receptive to grassroots pressure to stop prosecuting whistleblowers, so in that vein it is worthwhile to have a look at where the many candidates to date stand.

Because of the monumental nature of Snowden’s NSA disclosures, his case presents the best litmus test of candidates’ views on the role of whistleblowers in a democracy. Bearing in mind, of course, as voters often learn to their regret, what candidates say — and how their views are perceived — before they are in office differs sharply from what they actually do once they are in office.

Look no further than Obama, circa 2008, and his perceived antiwar credentials among Democratic activists — as well as the point from the Obama-Biden ethics agenda from the 2008 campaign in which Obama and runningmate Joe Biden pledged to “protect whistleblowers.” This administration has given a whole new meaning to the word “protect.”

While candidates can back away from progressive positions once in office, it seems a safe bet, though, that candidates who now call Snowden a “traitor” or a “criminal” are unlikely to change their minds to favor whistleblowers once they are elected.

HILLARY CLINTON: NO FRIEND TO WHISTLEBLOWERS

On the Democratic side, nothing that Hillary Clinton has said to date shows any sympathy toward — or understanding of the role of — whistleblowers. It is laughable that she suggests Snowden and other national security state whistleblowers “go through channels” — as she perpetuates the fairy tale that we have a good system in place for airing whistleblowers’ concerns about military and surveillance issues if only people would avail themselves of it.

During her book tour, The Hill newspaper reported last year, Clinton told National Public Radio: “There were other ways that Mr. Snowden could have expressed his concerns,” such as going to Congress.

Clinton continued: “I think everyone would have applauded that because it would have added to the debate that was already started. Instead, he left the country — first to China, then to Russia — taking with him a huge amount of [sensitive] information.” Clinton has also contended that Snowden’s disclosures had damaged national security by providing information to terrorist networks.

And here is Clinton again in the same vein in a July 4, 2014 interview with The Guardian about holding Snowden “accountable”: “If he [Snowden] wishes to return knowing he would be held accountable and also able to present a defense, that is his decision to make…Whether he chooses to return or not is up to him. He certainly can stay in Russia apparently under Putin’s protection for the rest of his life if that’s what he chooses, But if he is serious about engaging in the debate then he could take the opportunity to come back and have that debate.”

Clinton talks as if there is some sort of Oxford Union mechanism whereby defenders and opponents of the national security state sit together on a stage exchanging deep thoughts about major issues of the day before a well-informed audience. As many Snowden supporters have pointed out, the “debate” Edward Snowden would face the minute he hits U.S. shores would be to be shackled and put in solitary confinement — like Chelsea Manning — far out of the reach of any press interviews or would-be fellow debaters. He would engage in the same sort of  “debate” Manning engaged in under espionage law which barred her or any defendant from mounting any sort of public-interest defense as to why they did what they did.

Clinton and others who recommend the “channels” route also need to be reminded that Daniel Ellsberg four-plus decades ago went to influential, antiwar members of the Senate, J. William Fulbright (D-Arkansas) and George McGovern (D-South Dakota) with the Pentagon Papers before he released them to The New York Times and other newspapers, but they rebuffed him.

In more recent times, in the early 2000s CIA officer Jeffrey Sterling went to the Senate Select Committee on Intelligence with his concerns over a CIA scheme (Operation Merlin) to provide flawed nuclear weapons blueprints to Iran. Sterling was not only rebuffed, but as his recent trial illustrated (and Sterling did not know at the time) the committee was already aware of this program and did nothing with his allegations.

Sterling was subsequently investigated by the government for allegedly providing information about Operation Merlin to New York Times reporter James Risen — charges Sterling denies to this day. For his troubles in “going through channels,” he became a main suspect in the disclosure to Risen, was hounded for years, was indicted and finally this past January convicted of espionage and other charges. Sterling has begun serving a 42-month prison term as he pursues an appeal.

SANDERS, CHAFEE FAVOR LENIENCY FOR SNOWDEN

Among the small pool of other announced Democratic candidates, long-shot Democrat Lincoln Chafee (a former Republican senator and former independent governor of Rhode Island) and independent socialist Bernie Sanders, running as a Democrat, are calling for some sort of leniency — Sanders calls it “clemency” — that would allow Snowden to come back to the United States and apparently not face a prison term.

A year before announcing his presidential run, Sanders called for leniency for Snowden, but at the same time felt it necessary to gratuitously add that Snowden “violated an oath and committed a crime,” without acknowledging that the duty to uphold the U.S. Constitution should trump any oath of secrecy.

In an early 2014 statement to the Burlington (Vermont) Free Press, Sanders said: “The information disclosed by Edward Snowden has been extremely important in allowing Congress and the American people to understand the degree to which the NSA has abused its authority and violated our constitutional rights.

A free and independent press is essential to the health of a functioning democracy

“On the other hand, there is no debate that Mr. Snowden violated an oath and committed a crime.

“In my view, the interests of justice would be best served if our government granted him some form of clemency or a plea agreement that would spare him a long prison sentence or permanent exile from the country whose freedoms he cared enough about to risk his own freedom.”

In announcing his Democratic presidential candidacy in June 2015, Chafee alsooffered a much friendlier attitude than Clinton toward the world’s most famous modern-day whistleblower, calling for Snowden to be allowed to come back to the United States without apparently facing a prison term.

“I want America to be a leader and inspiration for civilized behavior in this new century,” Chafee said at his campaign kick-off. “We will abide by the Geneva conventions, which means we will not torture prisoners…Our sacred Constitution requires a warrant before unreasonable searches, which include our phone records. Let’s enforce that and while we’re at it, allow Edward Snowden to come home.” Notably, unlike Clinton who as a senator voted for the Iraq war resolution, Chafee was one of only 23 senators — and the lone Republican senator — to vote against it.

Democratic presidential candidate and former Maryland Governor Martin O’Malley has called for more restrictions on NSA surveillance than was provided for in the recently passed USA Freedom Act, including as he said recently “having a role for a public advocate in the FISA court.” However, he made no mention of Snowden in his statement.

RAND PAUL THANKS SNOWDEN, BUT WOULD SEND HIM TO PRISON

On the crowded Republican presidential side, libertarian Kentucky Senator Rand Paul has expressed gratitude for Snowden’s disclosures, but still envisions a prison term — albeit apparently a lenient one — for the whistleblower, even as most other Republican candidates who have taken a position are calling for Snowden’s head as a criminal and a traitor.

Despite Paul’s strong opposition to renewal of the Patriot Act and his acknowledgement that Snowden performed a public service in disclosing NSA’s “illegal” acts, he opts for “a fair trial with a reasonable sentence” for Snowden, rather than clemency.

“I don’t think Edward Snowden deserves the death penalty or life in prison, I think that’s inappropriate, and I think that’s why he fled, because that’s what he faced,” Paul said on ABC’s “This Week” in January 2014. “I think the only way he’s coming home is if someone would offer him a fair trial with a reasonable sentence.”

“Do I think that it’s o.k. to leak secrets and give up national secrets and things that could endanger lives?,” he continued. “I don’t think that’s o.k. But I think the courts are now saying that what he revealed was something the government was doing was illegal.”

Paul went on to pose a false equivalency between NSA’s law-breaking and what Snowden did. Noting the false testimony before Congress of Director of National Intelligence James Clapper that the NSA did not deliberately collect data from U.S. citizens, Paul said:

“I don’t think we can selectively apply the law. So James Clapper did break the law and there is a prison sentence for that. So did Edward Snowden. So I think personally he probably would come home for some penalty of a few years in prison which would be probably not unlike what James Clapper probably deserves for lying to Congress, and that maybe if they served in a prison cell together, we’d become further enlightened as a country over what we should and shouldn’t do.”

Paul’s comments about prison time for Snowden prompted CNNPolitics.com toopine that if a top antagonist of the NSA such as Paul “believes Snowden should be locked up, the famed whistleblower is unlikely to get any reprieve from the rest of the 2016 Republican field.”

OTHER REPUBLICANS MAINLY SEE SNOWDEN AS ‘CRIMINAL,’ ‘TRAITOR’

Here’s a sampling of what some other declared and potential Republican presidential candidates have said about Snowden:

  • Senator Ted Cruz has been somewhat sympathetic to the whistleblower,saying that “Snowden has done a considerable public service by bringing [the NSA disclosures] to light.” But he added that “there are consequences to violating laws and that is something [Snowden] has publicly stated he understands, and I think the law needs to be enforced.”
  • Jeb Bush has called the NSA’s spy programs “the best part of the Obama administrtation,” and termed Snowden “not a hero.” “He violated U.S. law. That’s why he’s living large in Moscow, the land of freedom,” Bush said with some sarcasm in May 2015.
  • Marco Rubio said Snowden’s disclosures marked “the single most damaging revelation of American secrets in our history,” adding in a November 2013 speech to the American Enterprise Institute: “This man is a traitor who has sought assistance and refuge from some of the world’s most notorious violators of liberty and human rights.”
  • Rick Perry told Bloomberg Television in a March 2014 interview that Snowden was “more criminal than he is a whistleblower,” adding: “We have rules and regulations, and we just can’t have people passing out information that could do damage to our intelligence gathering.”
  • Chris Christie in May 2015 told Fox News that Snowden is “a criminal and is living and he’s hiding in Russia and he’s lecturing to us about the evils of authoritarian government while he’s living under the umbrella of Vladimir Putin.”
  • Sen. Lindsey Graham (R-South Carolina) has been among the most vengeful in his statements about Snowden — you have “blood on your hands,” he said. “I don’t think he’s a hero. I believe he hurt our nation. He compromised our national security program designed to find out what terrorists are up to…I hope we’ll chase him to the ends of the earth, bring him to justice.”
  • Mike Huckabee opposed extension of the Patriot Act, but his position on Snowden is unclear. On his Fox television show, Huckabee did have guests who debated NSA’s spying, including critics such as former NSA whistleblower William Binney, but doesn’t appear to have passed any judgment on Snowden, other than to cite specific disclosures made by Snowden as being important for the American people to know.
  • Bobby Jindal has apparently not stated specifically what he thinks of Snowden,saying only about NSA spying that: “I believe that government should have to get a warrant to spy on American citizens, and I oppose the mass collection of data.  At the same time, I also believe that when the government has a lead, they must have the freedom to follow that lead, wherever it goes.”
  • Rick Santorum has said: “I don’t think people who are undermining the security of our country are heroes.”
  • Donald Trump, in a Fox & Friends appearance in June 2013 shortly after Snowden’s disclosures, said, “in the old days [spies] used to be executed.” He continued: “This guy [Snowden] is a bad guy. You know there is still a thing called execution. You really have thousands of people with access to the kind of material like this. We’re not going to have a country any longer.”
  • Other declared or potential Republican candidates — Carly Fiorina, John Kasich, Ben Carson, Scott Walker, etc. — appear not to have made reported statements about Snowden or whistleblowers in general.
  • Among announced third-party presidential candidates, Jill Stein, who is seeking the Green Party’s nomination for a second time, has long called for a pardon for Chelsea Manning who is serving a 35-year prison sentence as her case is under appeal.

WHISTLEBLOWER CRACKDOWN PART OF LANDSCAPE OF FEAR

Thanks to Obama, and the lack of significant congressional, journalistic or public outcry against his crackdowns on whistleblowers over the last six years, the bringing of espionage charges has become commonplace, a dangerous precedent seemingly controversial only among civil libertarians, non-Democratic progressive activists and bloggers.

Punishing whistleblowers has become part of the landscape of fear that blankets our country today — just as with drone warfare, presidential kill lists, targeted and random assassinations, a high level of U.S. surveillance of citizens and people throughout the world, unpunished torturers, undeclared wars, and a claimed right of interventions and invasions anywhere on the planet to keep Americans “safe.”

Democratic leaders in Congress, in fact, believe Snowden should go to prison for a long time for his disclosures. Then-Senate majority leader Harry Reid (D-Nevada) in August 2013 said: “I think Snowden is a traitor, and I think he has hurt our country, and I hope someday he is brought to justice.”

Likewise, Senator Dianne Feinstein (D-California), at the time chair of the Senate Select Committee on Intelligence, said shortly after the first Snowden disclosures in June 2013: “I don’t look at this as being a whistleblower. I think it’s an act of treason.”

And House minority leader Nancy Pelosi (D-California) in January 2014 termed Snowden “no hero,” said he should not be granted clemency, but should instead “come back and face the music for what he did … (but) the music shouldn’t be the death penalty or life in prison.”

Most of the mainstream press, for its part — even today after all of the NSA disclosures triggered by Edward Snowden — continues to label what Snowden did as a crime. Typical of this was a June 4, 2015 editorial in the Los Angeles Times, whose headline rather sums up the feelings of much of the mainstream press toward whistleblowers: “Snowden deserves credit for NSA reform — and to stand trial.”

Telling whistleblowers “thanks for exposing nefarious government activities, but now you’re going to jail” hardly amounts to a ringing defense of whistleblowers, nor much of an incentive for others to do the same. Nor does it recognize that without whistleblowers most blockbuster news stories would never see the light of day, to the detriment of the public and the ever-shrinking traditional news media. This is the sad state of most corporate journalism in the early 21st century: report explosive revelations from the whistleblower but offer nothing but prison in return.

By failing to rally vigorously to the defense of whistleblowers, congressional Democrats and most of the mainstream press have implicitly given the o.k. for any future president to go after as many whistleblowers as he or she deems proper.

And if a future president decides to up the ante and also go after recipients of classified materials — i.e., reporters — in an even more aggressive fashion than this administration did in the case of James Risen of The New York Times (who was threatened with jail for refusing to reveal a source’s identity), and James Rosen of Fox News (who was alleged by the government to have been a co-conspirator, but not indicted, in another Espionage Act case) — what then? Would the mainstream press and influential members of Congress go to the barricades for the First Amendment, the press and whistleblowers in such a scenario?

Regardless of what pessimistic answer one gives to that question, the U.S. public should know by now that — as with all of the other repressive measures imposed under Presidents Bush and Obama — we aren’t going to get out of any of these messes by figuring that the next president will somehow be better in restoring some of our democratic rights. Only an inflamed citizenry pressuring all of our unresponsive government and journalistic institutions can help us move in that direction.

John Hanrahan

John Hanrahan is a former executive director of The Fund for Investigative Journalism and reporter for The Washington Post, The Washington Star, UPI and other news organizations. He also has extensive experience as a legal investigator. Hanrahan is the author of Government by Contract and co-author of Lost Frontier: The Marketing of Alaska. He has written extensively for NiemanWatchdog.org, a project of the Nieman Foundation for Journalism at Harvard University.

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