A former State Department executive came forward on July 18 to warn against how the United States government is using an executive order issued by President Ronald Reagan to collect data from Americans, especially when they are located outside US borders. And, even though President Barack Obama’s administration has waged an unprecedented war on whistleblowers, he does not believe he will be one of the victims. But is he already?
John Napier Tye, who served as a section for internet freedom in the State Department’s Bureau of Democracy, Human Rights and Labor from January 2011 to April 2014, described how he had been “cleared to receive top-secret and ‘sensitive compartmented’ information.”
“Based in part on classified facts that I am prohibited by law from publishing,” Tye said, “I believe that Americans should be even more concerned about the collection and storage of their communications under Executive Order 12333 [EO1233] than under Section 215.” [Section 215 is the section of the PATRIOT Act that the NSA has been using to collect the phone records of Americans in bulk.]
Tye highlighted how Americans’ communications could be “incidentally” collected during a “lawful overseas foreign intelligence investigation.” The executive order “does not require that the affected US persons be suspected of wrongdoing and places no limits on the volume of communications by US persons that may be collected and retained.” And, he adds, “No warrant or court approval is required, and such collection never need be reported to Congress. None of the reforms that Obama announced earlier this year will affect such collection.”
EO 12333 has been proven by NSA whistleblower Edward Snowden’s disclosures to truly push the boundaries of what is permissible under law. As Marcy Wheeler noted, in 2009, 3,000 US persons were placed on watch lists, even though they had not gone through a required First Amendment review. The NSA did not purge the records. The agency ultimately used EO 12333 to retroactively justify the collection of data and continue to collect data on these US persons.
NSA has used this executive order has a way to get around laws put in place so they did not have to adhere to privacy protections in those laws.
At the HOPE X conference in New York and during a historic conversation with Pentagon Papers whistleblower Daniel Ellsberg, Snowden praised Tye for speaking out about EO 12333:
…Something very important happened today. A lot of people haven’t seen it yet, in the Washington Post there’s an opinion article by a former State Department official who has basically said — he’s bound by classification. He had to get the article screened by the government to redact any classified information before he could publish it, but the Washington Post ran it, and it basically said, Executive Order 12333, which is one of the signals intelligence authorities which allows intelligence authorities, which allows United States to intercept basic communications, which are coming from overseas is being used to collect incredible amounts of communications, not just on people around the world, not just in a sense everywhere, but specifically on Americans, which is precisely what the United States government said it would not do…
Snowden added that what Tye had “revealed was explosive” and “should be on the front page of every newspaper but instead it’s an opinion article in one newspaper because there’s not clear irrefutable evidence that brings the president to the podium, that brings the Congress to the press and says we have to have a national conversation where the public is given back its seat at the table of government.”
What Snowden was referring to is the fact that, unlike him, Tye did not release any classified documents or reveal any classified information. He went to great pains to call attention to this issue without getting in trouble with the government.
As Tye wrote in a kind of disclaimer that appeared in his op-ed:
…I have never made any unauthorized disclosures of classified information, nor would I ever do so. I fully support keeping secret the targets, sources and methods of US intelligence as crucial elements of national security. I was never a disgruntled federal employee; I loved my job at the State Department. I left voluntarily and on good terms to take a job outside of government. A draft of this article was reviewed and cleared by the State Department and the NSA to ensure that it contained no classified material…
Tye considers himself a whistleblower for coming forward to confirm how the government is using this information. He does not believe he will be a victim of the war on whistleblowers that President Barack Obama’s administration has waged so fiercely.
“I don’t think there should be any retribution in this case because I haven’t broken any laws,” Tye told US News & World Report. “I took an oath to protect and defend the Constitution of the United States and this is part of that effort. I haven’t disclosed classified information to anyone who was not authorized to receive it, and I followed the law the whole way through.”
Tye also maintained, “I’m not worried about retribution because I think the government will do the right thing on this,” he says. “I think that the president, once he understands the scale of constitutional problems from 12333, will agree that we need a change…He could do it with the stroke of his pen by amending the executive order.”
This seems strikingly naive but perhaps it is a defensive posture to help protect one’s self.
Jesselyn Radack, an attorney for Snowden and a director of the National Security and Human Rights Division of the Government Accountability Project, disagreed with Tye. “The way the government has treated whistleblowers like Thomas Drake, who went through every possible internal channel and still got prosecuted for espionage, I certainly worry that the government may retaliate, probably by never hiring Mr. Tye or giving him a security clearance again.”
In fact, the decision by Tye to be so cautious and ask permission from the government to engage in speech, even though he had no intention of risking prosecution by revealing any classified information, shows how effect Obama’s war on whistleblowers has been.
Apparently, the president’s own NSA review group was concerned about how EO 12333 was being utilized yet was unwilling to explicitly name the executive order in their recommendation, where they urged all incidental communications on US persons be “immediately purged.” When a review group empaneled by the president will not even openly criticize this executive order, what does that suggest?
What are these “classified facts” underpinning this otherwise unclassified executive order, which this government has fought to keep secret? If these facts relate to violations of the Constitution, shouldn’t an official like Tye be able to disclose this information and enjoy some protection from government prosecution?
As Snowden said at HOPE X, “We have to be able to know not just what government [says] but how they act, in order to decide how closely we need to scrutinize their behaviors; and, if we didn’t have whistleblowers like you, like Tom Drake, and like everybody else who has come forward at tremendous risks, we would have a less open, less free, and less accountable society.”
The fact that Tye will not talk more openly and even follow the example of someone like Drake, who did not reveal classified information, is actually another victory for Obama’s war on whistleblowers. Tye probably knows Drake’s story quite well and wants to preserve the possibility of working in government again. Tye does not want to be forced to work somewhere like an Apple store for the rest of his life.
But, even though Tye has chosen not to reveal any information the government won’t authorize him to share, he is attempting to provoke and refocus a specific debate that the political class and intelligence agencies in Washington, DC, do not want to have. He is still taking a risk by speaking out about this executive order and could experience repercussions in the future.