Legal Organization Representing WikiLeaks Submits Report for UN Official’s Review of Whistleblower Protections

CCR Logo
Center for Constitutional Rights Logo

The Center for Constitutional Rights (CCR), a legal organization based in New York which represents WikiLeaks and its editor-in chief Julian Assange, has submitted a report to help United Nations Special Rapporteur David Kaye complete his review on the global issue of whistleblowers and the protection of sources.

Kaye serves as the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. The review addresses how human rights law should protect journalists from having to disclose their sources and how whistleblowers are or are not protected, especially after exposing human rights violations, corruption or other abuses.

Part of the review includes a kind of survey of all governments in the world asking them how journalists are protected from being compelled to reveal sources and how whistleblowers are afforded protections. It also asked for non-governmental organizations to share their views and studies.

CCR is uniquely positioned to provide insights, given that it represents a media organization which has endured an ongoing and unprecedented investigation by the United States government into the publication of documents provided by US military whistleblower Chelsea Manning.

The legal organization asserts in its submission [PDF], “States have an obligation to protect whistleblowers, a vulnerable group that faces systematic stigmatization as a result of exercising fundamental rights to access and obtain information.”

State governments also “have a positive obligation to promote freedom of expression through cyber laws, and must not use technical violations to punish whistleblowers,” CCR argues.

“There is a serious risk that cyber laws will displace secrecy laws as a tool to prosecute whistleblowers on basis of their activities accessing and obtaining information. In the United States, the cases of Chelsea Manning, NSA whistleblower Thomas Drake, and WikiLeaks reveal the application of “unauthorized access” computer laws to punish whistleblowers and publishers.”

The legal organization adds, “Today significant amounts of access to information, particularly by whistleblowers, is enabled by computers. Whistleblowers must not be punished for using a computer to blow the whistle. Cyber laws sanctioning whistleblowers or sources who already have access to computers, purely based on their intent to blow the whistle, raise serious problems for freedom of expression.”

The US government has prosecuted whistleblowers for violating the Espionage Act and disseminating information. In these cases, the intent of the whistleblower does not matter to prosecutors and judges. What matters is that a secrecy agreement was breached.

CCR kept close watch as the court-martial of Manning unfolded, even bringing a lawsuit on behalf of media organizations and journalists (including this one) to force the US military to be more transparent and make court-martial records available to the press. It struggled against secrecy, but one military court denied a request for relief, a military appeals court claimed to lack jurisdiction, and a federal court refused to hear the case. Finally, the military decided to start publishing documents to an online “reading room” that the press and public could access.

As an example of how whistleblowers are vulnerable to abuse, CCR recalls how UN Special Rapporteur on Torture Juan Méndez decided “Manning was subject to cruel, inhuman and degrading treatment while detained in pretrial custody.”

Manning wrote about her time in pretrial detention in Kuwait:

“At the very lowest point, I contemplated castrating myself, and even – in what seemed a pointless and tragicomic exercise, given the physical impossibility of having nothing stable to hang from – contemplated suicide with a tattered blanket, which I tried to choke myself with,” she recounted for The Guardian. (more…)

Would CIA Whistleblower Jeffrey Sterling Be in Prison If He Were White?

Jeffrey Sterling

Last week CIA whistleblower Jeffrey Sterling went to prison. If he were white, he probably wouldn’t be there.

Sterling was one of the CIA’s few African-American case officers, and he became the first to file a racial discrimination lawsuit against the agency. That happened shortly before the CIA fired him in late 2001. The official in Langley who did the firing face-to-face was John Brennan, now the CIA’s director and a close adviser to President Obama.

Five months ago, in court, prosecutors kept claiming that Sterling’s pursuit of the racial-bias lawsuit showed a key “motive” for providing classified information to journalist James Risen. The government’s case at the highly problematic trial was built entirely on circumstantial evidence. Lacking anything more, the prosecution hammered on ostensible motives, telling the jury that Sterling’s “anger,” “bitterness” and “selfishness” had caused him to reveal CIA secrets.

But the history of Sterling’s conflicts with the CIA has involved a pattern of top-down retaliation. Sterling became a problem for high-ranking officials, who surely did not like the bad publicity that his unprecedented lawsuit generated. And Sterling caused further hostility in high places when, in the spring of 2003, he went through channels to tell Senate Intelligence Committee staffers of his concerns about the CIA’s reckless Operation Merlin, which had given Iran some flawed design information for a nuclear weapons component.

Among the U.S. government’s advantages at the trial last winter was the fact that the jury did not include a single African-American. And it was drawn from a jury pool imbued with the CIA-friendly company town atmosphere of Northern Virginia.

Sterling’s long struggle against institutionalized racism is far from over. It continues as he pursues a legal appeal of his three-and-a-half year sentence. He’s in a prison near Denver, nearly 900 miles from his home in the St. Louis area, making it very difficult for his wife Holly to visit.

Last week, as Sterling headed to Colorado, journalist Kevin Gosztola wrote an illuminating piece that indicated the federal Bureau of Prisons has engaged in retaliation by placing Sterling in a prison so far from home. Gosztola concluded: “There really is no accountability for BOP officials who inappropriately designate inmates for prisons far away from their families.” (more…)

Bureau of Prisons Puts CIA Whistleblower Jeffrey Sterling in Prison Around 900 Miles from Wife & Family

Jeffrey Sterling
Jeffrey Sterling

CIA whistleblower Jeffrey Sterling was notified at the end of last week that he will serve his prison sentence of three and a half years at Federal Correctional Institution Englewood, a medium-security facility in Littleton, Colorado, that is around 900 miles away from where his wife and family live in St. Louis. That is at least a 12-hour drive.

Sterling was convicted of committing Espionage Act violations and other offenses after the government convinced a jury, through largely circumstantial evidence, that he had leaked information on a top secret CIA operation to New York Times reporter James Risen. He begins his sentence on June 16.

“I am certainly devastated beyond belief that I won’t be near my wife and family,” Sterling stated. “My wife, family, and friends have been an important support system for me and being so far away is like a wedge being driven between me and those who continue to love, support, and believe in me.”

“The government likes to isolate whistleblowers from their natural allies, and now the Bureau of Prisons is trying to isolate them from their families,” declared Jesselyn Radack, the director of the Government Accountability Project’s National Security and Human Rights Division. “Once again, the Bureau of Prisons proves that ‘rehabilitation’ is not their priority or else they’d place prisoners near their families.”

Sterling and his wife, Holly, are already economically devastated from the prosecution. Now, Holly will have to spend hundreds of dollars on air travel each time she wants to see him, a factor that may greatly limit how frequently she visits her husband in prison.

The Bureau of Prisons (BOP) has a very weak policy when it comes to keeping inmates close to their “release residence” or homes. It “attempts to designate inmates to facilities commensurate with their security and program needs within a 500-mile radius of their release residence.”

“If an inmate is placed at an institution that is more than 500 miles from his/her release residence, generally, it is due to specific security, programming, or population concerns.” However, there are next to no mechanisms for an inmate to hold BOP accountable for improperly designating or placing them in an inappropriate facility.

There are no low security facilities close to St. Louis, but there are four low security facilities, which are closer to St. Louis than FCI Englewood:

FCI Forrest City – Forrest City, Arkansas – 4 hr 32 min – 313 miles
FCI Ashland – Ashland, Kentucky – 6 hr 35 min – 453 miles
FCI Waseca – Waseca, Minnesota – 7 hr 36 min – 500 miles
FCI Sandstone – Sandstone, Minnesota – 9 hr 34 min – 618 miles

Any of those facilities are closer to his family than FCI Englewood, and three of them arguably would fall within BOP’s 500-mile policy.

How does Sterling’s incarceration compare to previous cases of people prosecuted for leaks? (more…)

Whistleblowers Testify on High Risk of Retaliation They Face for Going to Congress

Lt. Col. Jason Amerine
Lt. Col. Jason Amerine

United States government whistleblowers, who have gone to Congress in the past, have had a hugely positive impact. However, often government employees, who blow the whistle on fraud, waste, abuse and other examples of wrongdoing to members of Congress, face great risk to their livelihoods.

The Senate Committee on Homeland Security and Governmental Affairs held a hearing where whistleblowers testified about retaliation they have experienced.

An Army special forces officer, Jason Amerine, testified, “After I made protected disclosures to Congress, the Army suspended my [security] clearance, removed me from my job, launched a criminal investigation and deleted my retirement orders with a view to court martial me after I exercised that Constitutional right.”

In 2013, Amerine worked in an office tasked with freeing Sgt. Bowe Bergdahl, who has being held hostage by the Taliban. His office saw the dysfunction in the process of trying to rescue hostages and pursued an option that would have involved swapping a warlord and ally of President Hamid Karzai, Haji Bashir Noorzai, for seven American hostages, including Bergdahl.

According to Amerine, when the Taliban was at the table negotiating, the State Department said it would have to go with a swap between Bergdahl and the five Taliban.

Amerine claims that there was also “a great deal of evidence” that the Defense Department and FBI were implicated in an “illegal or questionable ransom” for Bergdahl. When he turned to Representative Duncan Hunter’s office, who is on the House Armed Services Committee, he eventually was put under criminal investigation.

Hunter setup a meeting between his office and the FBI. During the meeting, the FBI “formally complained to the Army that information” Amerine was “sharing with Rep. Hunter was classified. It was not.” Hunter was also told that the FBI had respect for Amerine’s work but they had to put him in his place.

Senior Special Agent Taylor Johnson of the Homeland Security Department’s Office of Investigations testified about blowing the whistle on corruption surrounding an EB-5 project. (EB-5 is a program that allows foreign nationals to obtain green cards if they make investments of money in the US.)

Johnson said she uncovered evidence of major fraud, money laundering, bank and wire fraud, as well as “ties to organized crime and high ranking officials and politicians, who received large campaign contributions that appeared” to have helped facilitate the EB-5 project.

She reported what she was uncovering through proper channels. Outside agencies and high-ranking officials complained, and the investigation was shut down after a “congressional complaint” was received.

Soon after, Johnson recalled, “I was escorted by three supervisors from my desk and out of my permanent duty station. I was not permitted to access my case file or personal items. I was alienated from my friends and colleagues, who were told by management to steer clear of me since I was facing criminal charges. I was removed from my permanent duty station and initially assigned to an office over 50 miles from my home and family,” a US code violation.

“I almost lost my youngest child, when an adoption social worker tried to verify employment and was told I had been terminated by the agency for a criminal offense,” Johnson further testified.

Jose Rafael Ducos, a Customs and Border Patrol (CBP) chief officer, testified about being retaliated against for reporting overtime pay abuses and formally challenging his immediate supervisors’ conduct. He claimed he was discriminated against because he is Hispanic.

For the past three years, he described workplace harassment and intimidation by individuals in CBP. He involved Sen. Ron Johnson, who sent a letter to Homeland Security Director Jeh Johnson on March 17, 2015, but he continues to be isolated and no longer is assigned to any permanent office.

“In my experience, congressional disclosures spark the ugliest retaliation,” Tom Devine, the legal director of the Government Accountability Project (GAP) testified.

Devine suggested this is because Congress can be a “magnet for public attention” that “can act both to change the balance of resources and the rules of the game.” A “direct linear relationship” exists between “the threat posed by a whistleblower and the severity of retaliation.” In fact, FBI whistleblower Coleen Rowley once suggested that the FBI “viewed Congress with as much and sometimes more hostility” than “enemy nations.”

Devine warned the committee that agencies are now relying on “creative harassment tactics” since the passage of the Whistleblower Protection Enhancement Act in 2012.

“Instead of just firing someone,” agencies put whistleblowers “under criminal investigation but give them the choice of either resigning or facing a prosecutive referral,” Devine explained. It is “very attractive” and “much easier” for them than litigation. They do not have to “prepare formal charges.” All an agency needs is a “good investigative lawyer.” The worst that can happen is the agency has to close a case. But the next month the agency can open another case against that whistleblower under a “new pretext.”

Most alarming is the “sensitive jobs loophole” President Barack Obama’s administration is creating. Devine argued the government is on the “verge of replacing the rule of law with a national security spoils system.” (more…)

Los Angeles Times Editorial Board Endorses Prosecution of Edward Snowden

"LA Times building" by jim Winstead from los angeles, usa - the los angeles times building. Licensed under CC BY 2.0 via Wikimedia Commons.

The Los Angeles Times Editorial Board published an editorial that argues against granting NSA whistleblower Edward Snowden a pardon. It endorses the Justice Department’s prosecution of Snowden under the Espionage Act, despite the fact that his unauthorized disclosures were responsible for key reforms.

The “serious arguments” against a pardon, according to the editorial board, include the fact that America is a “society of laws” and “someone who engages in civil disobedience in a higher cause should be prepared to accept the consequences.”

“A stronger objection, in our view, is that Snowden didn’t limit his disclosures to information about violations of Americans’ privacy. He divulged other sensitive information about traditional foreign intelligence activities, including a document showing that the NSA had intercepted the communications of then-Russian President Dmitry Medvedev during a Group of 20 summit in London in 2009.”

“A government contractor who discloses details of US spying on another country is not most Americans’ idea of a whistleblower,” the editorial board declares.

The Los Angeles Times Editorial Board’s chief complaint amounts to the suggestion that Snowden is not a big enough nationalist because he revealed ethically dubious spying activities carried out against other countries. And, although there has never been a public debate about the extent to which the US government should be spying on all the people of the world, as well as leaders of countries, Snowden should not be shown too much leniency because this spying should remain secret from the American public.

Whatever “Americans’ idea of a whistleblower” happens to be, it has been influenced by government officials seeking to propagandize the public so that they oppose individuals like Snowden.

Jason Leopold, a journalist for VICE News, reported that a “group of bipartisan lawmakers solicited details from the Pentagon,” which could be used to “damage” Snowden’s “credibility in the press and court of public opinion.”

The Pentagon provided Congress with unclassified talking points on January 8, 2014. They may seem familiar because they have been repeated numerous times by US media organizations. (In fact, the second talking point is what the Los Angeles Times Editorial Board considers to be the most persuasive argument against pardoning Snowden.)

Much of the information compromised [by Snowden] has the potential to gravely impact the National Security of the United States, to include the Department of Defense [DoD] and its capabilities.

While most of the reporting to date in the press has centered on NSA’s acquisition of foreign intelligence to protect the lives of our citizens and allies, the files cover sensitive topics well beyond the NSA collection. Disclosure of this information in the press and to adversaries has the potential to put Defense personnel in harm’s way and jeopardize the success of DoD operations.

These unauthorized disclosures have tipped off our adversaries to intelligence sources and methods and negatively impacted our Allies who partner with us to fight terrorism, cyber crimes, human and narcotics trafficking, and the proliferation of weapons of mass destruction. Such international cooperation involving the pooling of information, technology, and expertise is critical to preserve our security and that of our allies.

The Los Angeles Times published a story on Snowden on June 28, 2013, that quoted anonymous officials who were speaking about classified information that they claimed showed Snowden had given an “edge” to “US rivals.”

“Russia, China and terrorism suspects have altered how they communicate to evade US detection, current and former U.S. intelligence officials say,” the media organization reported.

It is now abundantly clear that this story was based in Pentagon propaganda, which officials were prepared to feed to the public through journalists and members of Congress. (more…)

Obama Administration Expanded Warrantless Surveillance to Target ‘Malicious Cyber Activity’

Defense Department Photo

Documents from NSA whistleblower Edward Snowden show warrantless surveillance was expanded by President Barack Obama’s administration to target “malicious cyber activity.”

After Congress legalized the warrantless wiretapping with the FISA Amendments Act in 2008, non-US citizens could be targeted abroad. The administration developed a new policy for cybersecurity and took steps that would make the difference between a spy and criminal nearly non-existent.

According to a report from the New York Times and ProPublica, the White House National Security Council decided in May 2009 that “reliance on legal authorities that make theoretical distinctions between armed attacks, terrorism and criminal activity may prove impractical.”

The NSA proposed that the government use the warrantless surveillance program for cybersecurity about the same time.

In May and July 2012, the Justice Department signed off on searches of “cybersignatures” and Internet addresses. The approval was tied to previously granted authority to spy on foreign governments obtained from the Foreign Intelligence Surveillance Court. However, the NSA soon grew frustrated with the limits this imposed on them.

“That limit meant the NSA had to have some evidence for believing that the hackers were working for a specific foreign power,” the report indicates. “That rule, the NSA soon complained, left a ‘huge collection gap against cyberthreats to the nation’ because it is often hard to know exactly who is behind an intrusion, according to an agency newsletter. Different computer intruders can use the same piece of malware, take steps to hide their location or pretend to be someone else.”

Before the year was over, the NSA pressed the secret surveillance court for permission to use the warrantless wiretapping program for “cybersecurity purposes.”

As this happened, the FBI’s authority to target Internet data and use it for its criminal and “national security” investigations expanded.

…[T]he FBI in 2011 had obtained a new kind of wiretap order from the secret surveillance court for cybersecurity investigations, permitting it to target Internet data flowing to or from specific Internet addresses linked to certain governments.

To carry out the orders, the FBI negotiated in 2012 to use the NSA’s system for monitoring Internet traffic crossing “chokepoints operated by U.S. providers through which international communications enter and leave the United States,” according to a 2012 NSA document. The NSA would send the intercepted traffic to the bureau’s “cyberdata repository” in Quantico, Virginia…

The newly claimed authority is but another example of an expansion of executive power the Obama administration arrogated to itself without any public debate whatsoever. (more…)

A Misleading Moment of Celebration for a New Surveillance Program

7_whistleblowers

This is cross-posted with permission from ExposeFacts.org.

The morning after final passage of the USA Freedom Act, while some foes of mass surveillance were celebrating, Thomas Drake sounded decidedly glum. The new law, he told me, is “a new spy program.” It restarts some of the worst aspects of the Patriot Act and further codifies systematic violations of Fourth Amendment rights.

Later on Wednesday, here in Oslo as part of a “Stand Up For Truth” tour, Drake warned at a public forum that “national security” has become “the new state religion.” Meanwhile, his Twitter messages were calling the USA Freedom Act an “itty-bitty step” — and a “stop/restart kabuki shell game” that “starts w/ restarting bulk collection of phone records.”

That downbeat appraisal of the USA Freedom Act should give pause to its celebrants. Drake is a former senior executive of the National Security Agency — and a whistleblower who endured prosecution and faced decades in prison for daring to speak truthfully about NSA activities. He ran afoul of vindictive authorities because he refused to go along with the NSA’s massive surveillance program after 9/11.

Drake understands how the NSA operates from the highest strategic levels. He notes a telling fact that has gone virtually unacknowledged by anti-surveillance boosters of the USA Freedom Act: “NSA approved.” So, of course, did the top purveyor of mendacious claims about the U.S. government’s surveillance programs — President Obama — who eagerly signed the “USA Freedom” bill into law just hours after the Senate passed it.

(more…)

Congress Did Not Pass an Anti-Surveillance Law (And Other Thoughts About the USA Freedom Act)

Screen shot 2015-06-03 at 4.39.24 PM

When President Barack Obama signed the USA Freedom Act, it did not end bulk data collection or mass surveillance programs. It did not address many of the policies, practices or programs of the NSA, which NSA whistleblower Edward Snowden revealed. It did not sharply limit surveillance nor was it an anti-surveillance law. The USA Freedom Act renewed Patriot Act provisions, which had sunset days ago. However, it is difficult to disagree with Snowden’s generally optimistic assessment.

During an Amnesty International UK event, as the Senate was about to pass the law, Snowden declared, “For the first time in forty years of US history, since the intelligence community was reformed in the ’70s, we found that facts have become more persuasive than fear.”

Snowden continued, “For the first time in recent history we found that despite the claims of government, the public made the final decision and that is a radical change that we should seize on, we should value and we should push further.”

He was specifically referring to how the Congress and courts had rejected this NSA surveillance program.

In that sense, June 2 was a day that the people won against the security state. US citizens took away the government’s control of nearly all of their domestic call records. And power was forced to act because their operation of a program and the operations of a secret surveillance court, the Foreign Intelligence Surveillance Court, were no longer seen as legitimate.

The extent of the victory, however, probably ends there.

As another NSA whistleblower, Bill Binney, said during an event in Chicago, the USA Freedom Act was a “surface change.” The government still has Executive Order 12333, which it can use for “content collection of US domestic communications as well as metadata. It’s all done through the Upstream programs. It’s done without oversight at all. There’s no oversight by Congress or the courts.” [Upstream is the series of different cables and fiber optic taps that the NSA uses to collect data that passes through fiber networks. Phone calls, emails, cloud transfers, pictures, and video, according to Binney, can all be collected.]

Journalist Marcy Wheeler pointed out that bulk collection of Americans’ international phone calls will continue. “Backdoor searches” under Section 702 of the FISA Amendments Act will continue, as the NSA can collect emails, browsing and chat history of US citizens without a warrant.

A number of the senators who voted for the USA Freedom Act did so because the three Patriot Act provisions had expired. They wanted something passed quickly so the NSA could resume spying operations that were supposed to be put on hold. So, some senators saw the USA Freedom Act as both a law to protect security as well as privacy.

Senator Bernie Sanders voted against the USA Freedom Act and explained in a released statement that it would still give the NSA and “law enforcement too much access to vast databases of information on millions of innocent Americans.”

The independent senator voted against the Patriot Act and both of the law’s extensions in 2005 and 2011.

The only Democratic senator to vote against the law. (more…)

White House Insists Snowden is Still Guilty of ‘Very Serious Crimes’

Regardless of political developments that may vindicate the actions of NSA whistleblower Edward Snowden, the White House still maintains that he committed “very serious crimes” and should continue to face prosecution in the United States.

White House Press Secretary Joshua Earnest was asked during a press briefing on June 1 about whether it was time to “reassess the persecution” of Snowden. All three branches of government have rejected the use of the Patriot Act to justify bulk data collection by the NSA, a program which Snowden revealed to the public.

“It’s not,” Earnest replied. “The fact is Mr. Snowden committed very serious crimes, and the US government and Department of Justice believe that he should face them.”

“That’s why we believe Mr. Snowden should return to the United States, and he will have the opportunity if he were to return to the United States to make that case in a court of law. But, obviously, our view on this is that he committed and is accused of very serious crimes.”

As a follow-up, Earnest was pressed on the fact that Snowden would not be able to make a public interest or whistleblower defense in court during a trial. He is charged with violating the Espionage Act. The Justice Department prosecutes it as a strict liability crime, which means motive does not matter. If a person causes “national defense” information to be made public without proper authorization, that is enough to convict them of committing a violation of the law.

“Would you be willing to at least talk to him about the circumstances in which you’ve said you’d give him a fair trial?”

Earnest suggested the Justice Department would have to handle something like that. He would not get into how that would play out. But, he added, “There exists mechanisms for whistleblowers to raise concerns about sensitive national security programs.”

“Releasing details of sensitive national security programs on the internet for everyone, including our adversaries, to see is inconsistent with those protocols that are established for protecting whistleblowers.”

Jesselyn Radack, an attorney who has represented Snowden, reacted, “Snowden did not release any documents on the internet. He provided documents to journalists, who used their editorial discretion to decide what was worthy and in the public interest to know.”

It is a “tried and true line,” which President Barack Obama’s administration has “trotted out in Espionage Act cases.” The argument is because terrorists read newspapers there will be grave harm, but it is generally not supported by facts.

When Snowden was at the NSA, he was working as a private contractor. Snowden did not have “proper channels” he could go through because the presidential policy directive put in place for “intelligence officers” excluded contractors. So, it is hard to figure out what “protocols” Earnest was referencing when he made his remarks.

Radack added, “As one of the attorneys representing Snowden, given the recent developments in the courts and Congress, it is clearly time to drop these charges against Mr. Snowden.”

It was not Obama that created this political moment where potential surveillance reforms were debated and senators spoke out against bulk data collection. It was Snowden—and a number of senators recognize this reality.

However, Earnest claimed that Obama should be the one credited with any surveillance reform that passes in Congress.

“To the extent that we’re talking about the president’s legacy, I would suspect that would be a logical conclusion from some historians that the president ended some of these programs that did raise concerns [among] those who prioritize privacy and civil liberties of the American people,” Earnest stated.

“This is consistent with the reforms that the president advocated a year and a half ago. And these are reforms that required the president and his team to expend significant amounts of political capital to achieve over the objection of Republicans.”

Yet, few senators have credited Obama for pushing reform. Politicians in Washington recognize that public opinion, which has been influenced by disclosures from Snowden, is why they are considering changes to policies.

A Pew Research Center poll recently found that few Americans support government holding on to their data in bulk. Only 6% were “very confident” that government can keep records “safe and secure.”

“[Sixty-five percent] of American adults believe there are not adequate limits on the telephone and internet data that the government collects.”