The failure of the judiciary was, if anything, even more disappointing. The Foreign Intelligence Surveillance Court (FISC), which oversees intelligence surveillance within the United States, is a specialized body that meets in secret and hears only from the government. It was designed to grant individual warrants for foreign intelligence collection, and has always been especially accommodating to the NSA, approving well over 99 percent of the agency’s requests—a rate more suggestive of a ministerial rubber stamp than a deliberative judicial process. After 9/11, the court expanded its role from authorizing the surveillance of specific individuals to ruling on the legality and constitutionality of broad programmatic surveillance, without any adversarial scrutiny. A body that previously had been tasked with approving the surveillance of Foreign Terrorist #1 or Foreign Spy #2 was now being used to legitimize the whole combined infrastructure of PRISM and upstream collection. Judicial review of that infrastructure was reduced, in the words of the ACLU to a secret court upholding secret programs by secretly reinterpreting federal law.
When civil society groups like the ACLU tried to challenge the NSA’s activities in ordinary, open federal courts, a curious thing happened. The government didn’t defend itself on the ground that the surveillance activities were legal or constitutional. It declared, instead, that the ACLU and its clients had no right to be in court at all, because the ACLU could not prove that its clients had in fact been surveilled. Moreover, the ACLU could not use the litigation to seek evidence of surveillance, because the existence (or nonexistence) of that evidence was “a state secret,” and leaks to journalists didn’t count. In other words, the court couldn’t recognize the information that was publicly known from having been published in the media; it could only recognize the information that the government officially confirmed as being publicly known. This invocation of classification meant that neither the ACLU, nor anyone else, could ever establish standing to raise a legal challenge in open court. To my disgust, in February 2013 the US Supreme Court decided 5 to 4 to accept the government’s reasoning and dismissed an ACLU and Amnesty International lawsuit challenging mass surveillance without even considering the legality of the NSA’s activities.
Finally, there was the executive branch, the primary cause of this constitutional breach. The president’s office, through the Justice Department, had committed the original sin of secretly issuing directives that authorized mass surveillance in the wake of 9/11. Executive overreach has only continued in the decades since, with administrations of both parties seeking to act unilaterally and establish policy directives that circumvent law—policy directives that cannot be challenged, since their classification keeps them from being publicly known.
The constitutional system only functions as a whole if and when each of its three branches works as intended. When all three don’t just fail, but fail deliberately and with coordination, the result is a culture of impunity. I realized that I was crazy to have imagined that the Supreme Court, or Congress, or President Obama, seeking to distance his administration from President George W. Bush’s, would ever hold the IC legally responsible—for anything. It was time to face the fact that the IC believed themselves above the law, and given how broken the process was, they were right. The IC had come to understand the rules of our system better than the people who had created it, and they used that knowledge to their advantage.
They’d hacked the Constitution.
* * *
AMERICA WAS BORN from an act of treason. The Declaration of Independence was an outrageous violation of the laws of England and yet the fullest expression of what the Founders called the “Laws of Nature,” among which was the right to defy the powers of the day and rebel on point of principle, according to the dictates of one’s conscience. The first Americans to exercise this right, the first “whistleblowers” in American history, appeared one year later—in 1777.
These men, like so many of the men in my family, were sailors, officers of the Continental Navy who, in defense of their new land, had taken to the sea. During the Revolution, they served on the USS Warren, a thirty-two-gun frigate under the command of Commodore Esek Hopkins, the commander in chief of the Continental Navy. Hopkins was a lazy and intractable leader who refused to bring his vessel into combat. His officers also claimed to have witnessed him beating and starving British prisoners of war. Ten of the Warren’s officers—after consulting their consciences, and with barely a thought for their careers—reported all of this up the chain of command, writing to the Marine Committee:
Much Respected Gentlemen,
We who present this petition are engaged on board the ship Warren with an earnest desire and fixed expectation of doing our country some service. We are still anxious for the Weal of America & wish nothing more earnestly than to see her in peace & prosperity. We are ready to hazard every thing that is dear & if necessary sacrifice our lives for the welfare of our country. We are desirous of being active in the defence of our constitutional liberties and privileges against the unjust cruel claims of tyranny & oppression; but as things are now circumstanced on board this frigate, there seems to be no prospect of our being serviceable in our present station. We have been in this situation for a considerable space of time. We are personally well acquainted with the real character & conduct of our commander, Commodore Hopkins, & we take this method not having a more convenient opportunity of sincerely & humbly petitioning the honorable Marine Committee that they would inquire into his character & conduct, for we suppose that his character is such & that he has been guilty of such crimes as render him quite unfit for the public department he now occupies, which crimes, we the subscribers can sufficiently attest.
After receiving this letter, the Marine Committee investigated Commodore Hopkins. He reacted by dismissing his officers and crew, and in a fit of rage filed a criminal libel suit against Midshipman Samuel Shaw and Third Lieutenant Richard Marven, the two officers who admitted to having authored the petition. The suit was filed in the courts of Rhode Island, whose last colonial governor had been Stephen Hopkins, a signatory to the Declaration of Independence and the commodore’s brother.
The case was assigned to a judge appointed by Governor Hopkins, but before the trial commenced Shaw and Marven were saved by a fellow naval officer, John Grannis, who broke ranks and presented their case directly to the Continental Congress. The Continental Congress was so alarmed by the precedent being set by allowing military complaints regarding dereliction of duty to be subject to the criminal charge of libel that it intervened. On July 30, 1778, it terminated the command of Commodore Hopkins, ordered the Treasury Office to pay Shaw and Marven’s legal fees, and by unanimous consent enacted America’s first whistleblower protection law. This law declared it “the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds, or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.”
The law gave me hope—and it still does. Even at the darkest hour of the Revolution, with the very existence of the country at stake, Congress didn’t just welcome an act of principled dissent, it enshrined such acts as duties. By the latter half of 2012, I was resolved to perform this duty myself, though I knew I’d be making my disclosures at a very different time—a time both more comfortable and more cynical. Few if any of my IC superiors would have sacrificed their careers for the same American principles for which military personnel regularly sacrifice their lives. And in my case, going up “the chain of command,” which the IC prefers to call “the proper channels,” wasn’t an option as it was for the ten men who crewed on the Warren. My superiors were not only aware of what the agency was doing, they were actively directing it—they were complicit.
In organizations like the NSA—in which malfeasance has become so structural as to be a matter not of any particular initiative, but of an ideology—proper channels c
an only become a trap, to catch the heretics and disfavorables. I’d already experienced the failure of command back in Warrenton, and then again in Geneva, where in the regular course of my duties I had discovered a security vulnerability in a critical program. I’d reported the vulnerability, and when nothing was done about it I reported that, too. My supervisors weren’t happy that I’d done so, because their supervisors weren’t happy, either. The chain of command is truly a chain that binds, and the lower links can only be lifted by the higher.
Coming from a Coast Guard family, I’ve always been fascinated by how much of the English language vocabulary of disclosure has a nautical undercurrent. Even before the days of the USS Warren, organizations, like ships, sprang leaks. When steam replaced wind for propulsion, whistles were blown at sea to signal intentions and emergencies: one whistle to pass by port, two whistles to pass by starboard, five for a warning.
The same terms in European languages, meanwhile, often have fraught political valences conditioned by historical context. French used dénonciateur throughout much of the twentieth century, until the word’s WWII-era association with being a “denouncer” or “informant” for the Germans led to a preference for lanceur d’alerte (“one who launches a warning”). German, a language that has struggled with its culture’s Nazi and Stasi past, evolved beyond its own Denunziant and Informant to settle on the unsatisfactory Hinweisgeber (a “hint- or tip-giver”), Enthueller (“revealer”), Skandalaufdecker (“scandal-uncoverer”), and even the pointedly political ethische Dissidenten (“ethical dissident”). German uses few of these words online, however; with respect to today’s Internet-based disclosures, it has simply borrowed the noun Whistleblower and the verb leaken. The languages of regimes like Russia and China, for their part, employ terms that bear the pejorative sense of “snitch” and “traitor.” It would take the existence of a strong free press in those societies to imbue those words with a more positive coloration, or to coin new ones that would frame disclosure not as a betrayal but as an honorable duty.
Ultimately, every language, including English, demonstrates its culture’s relationship to power by how it chooses to define the act of disclosure. Even the nautically derived English words that seem neutral and benign frame the act from the perspective of the institution that perceives itself wronged, not of the public that the institution has failed. When an institution decries “a leak,” it is implying that the “leaker” damaged or sabotaged something.
Today, “leaking” and “whistleblowing” are often treated as interchangeable. But to my mind, the term “leaking” should be used differently than it commonly is. It should be used to describe acts of disclosure done not out of public interest but out of self-interest, or in pursuit of institutional or political aims. To be more precise, I understand a leak as something closer to a “plant,” or an incidence of “propaganda-seeding”: the selective release of protected information in order to sway popular opinion or affect the course of decision making. It is rare for even a day to go by in which some “unnamed” or “anonymous” senior government official does not leak, by way of a hint or tip to a journalist, some classified item that advances their own agenda or the efforts of their agency or party.
This dynamic is perhaps most brazenly exemplified by a 2013 incident in which IC officials, likely seeking to inflate the threat of terrorism and deflect criticism of mass surveillance, leaked to a few news websites extraordinarily detailed accounts of a conference call between al-Qaeda leader Ayman al-Zawahiri and his global affiliates. In this so-called conference call of doom, al-Zawahiri purportedly discussed organizational cooperation with Nasser al-Wuhayshi, the leader of al-Qaeda in Yemen, and representatives of the Taliban and Boko Haram. By disclosing the ability to intercept this conference call—that is, if we’re to believe this leak, which consisted of a description of the call, not a recording—the IC irrevocably burned an extraordinary means of apprising itself of the plans and intentions of the highest ranks of terrorist leadership, purely for the sake of a momentary political advantage in the news cycle. Not a single person was prosecuted as a result of this stunt, though it was most certainly illegal, and cost America the ability to keep wiretapping the alleged al-Qaeda hotline.
Time and again, America’s political class has proven itself willing to tolerate, even generate leaks that serve its own ends. The IC often announces its “successes,” regardless of their classification and regardless of the consequences. Nowhere in recent memory has that been more apparent than in the leaks relating to the extrajudicial killing of the American-born extremist cleric Anwar al-Aulaqi in Yemen. By breathlessly publicizing its drone attack on al-Aulaqi to the Washington Post and the New York Times, the Obama administration was tacitly admitting the existence of the CIA’s drone program and its “disposition matrix,” or kill list, both of which are officially top secret. Additionally, the government was implicitly confirming that it engaged not just in targeted assassinations, but in targeted assassinations of American citizens. These leaks, accomplished in the coordinated fashion of a media campaign, were shocking demonstrations of the state’s situational approach to secrecy: a seal that must be maintained for the government to act with impunity, but that can be broken whenever the government seeks to claim credit.
It’s only in this context that the US government’s latitudinal relationship to leaking can be fully understood. It has forgiven “unauthorized” leaks when they’ve resulted in unexpected benefits, and forgotten “authorized” leaks when they’ve caused harm. But if a leak’s harmfulness and lack of authorization, not to mention its essential illegality, make scant difference to the government’s reaction, what does? What makes one disclosure permissible, and another not?
The answer is power. The answer is control. A disclosure is deemed acceptable only if it doesn’t challenge the fundamental prerogatives of an institution. If all the disparate components of an organization, from its mailroom to its executive suite, can be assumed to have the same power to discuss internal matters, then its executives have surrendered their information control, and the organization’s continued functioning is put in jeopardy. Seizing this equality of voice, independent of an organization’s managerial or decision-making hierarchy, is what is properly meant by the term “whistleblowing”—an act that’s particularly threatening to the IC, which operates by strict compartmentalization under a legally codified veil of secrecy.
A “whistleblower,” in my definition, is a person who through hard experience has concluded that their life inside an institution has become incompatible with the principles developed in—and the loyalty owed to—the greater society outside it, to which that institution should be accountable. This person knows that they can’t remain inside the institution, and knows that the institution can’t or won’t be dismantled. Reforming the institution might be possible, however, so they blow the whistle and disclose the information to bring public pressure to bear.
This is an adequate description of my situation, with one crucial addition: all the information I intended to disclose was classified top secret. To blow the whistle on secret programs, I’d also have to blow the whistle on the larger system of secrecy, to expose it not as the absolute prerogative of state that the IC claimed it was but rather as an occasional privilege that the IC abused to subvert democratic oversight. Without bringing to light the full scope of this systemic secrecy, there would be no hope of restoring a balance of power between citizens and their governance. This motive of restoration I take to be essential to whistleblowing: it marks the disclosure not as a radical act of dissent or resistance, but a conventional act of return—signaling the ship to return back to port, where it’ll be stripped, refitted, and patched of its leaks before being given the chance to start over.
A total exposure of the total apparatus of mass surveillance—not by me, but by the media, the de facto fourth branch of the US government, protected by the Bill of Rights: that was the only response appropriate to the scale of the crime. It wo
uldn’t be enough, after all, to merely reveal a particular abuse or set of abuses, which the agency could stop (or pretend to stop) while preserving the rest of the shadowy apparatus intact. Instead, I was resolved to bring to light a single, all-encompassing fact: that my government had developed and deployed a global system of mass surveillance without the knowledge or consent of its citizenry.
Whistleblowers can be elected by circumstance at any working level of an institution. But digital technology has brought us to an age in which, for the first time in recorded history, the most effective will come up from the bottom, from the ranks traditionally least incentivized to maintain the status quo. In the IC, as in virtually every other outsize decentralized institution that relies on computers, these lower ranks are rife with technologists like myself, whose legitimate access to vital infrastructure is grossly out of proportion to their formal authority to influence institutional decisions. In other words, there is usually an imbalance that obtains between what people like me are intended to know and what we are able to know, and between the slight power we have to change the institutional culture and the vast power we have to address our concerns to the culture at large. Though such technological privileges can certainly be abused—after all, most systems-level technologists have access to everything—the highest exercise of that privilege is in cases involving the technology itself. Specialist abilities incur weightier responsibilities. Technologists seeking to report on the systemic misuse of technology must do more than just bring their findings to the public, if the significance of those findings is to be understood. They have a duty to contextualize and explain—to demystify.
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