Hey Patriot, what about Freedom? A brief history of US post-9/11 surveillance

(By Deutsche Welle) America responded to 9/11 by expanding surveillance through the Patriot Act. Since Edward Snowden’s revelations, the nation has largely recanted. The debate is now about a Freedom Act. Spencer Kimball reports.

Only one senator voted against the Patriot Act in the frantic weeks following the devastating terrorist attacks on New York and Washington DC.

“This is an enormous expansion of authority, under a law that provides only minimal judicial supervision,” Russ Feingold declared during his speech on the floor of Senate.

At the time, first responders were still retrieving more than 2,000 corpses from the rubble of the World Trade Center, which had been renamed “Ground Zero.” A network of Islamist radicals led by Osama bin Laden had launched the worst attack on American soil since the Japanese bombed Pearl Harbor.

Feingold, a Democrat from Wisconsin, was voted out of office in 2010. But in the fourteenth year post 9/11, the tide has turned in America.

Even the Patriot Act’s father now opposes the most controversial provision of the law. Representative Jim Sensenbrenner, a Republican from Wisconsin, claims he never intended for the now infamous Section 215 to permit the bulk collection of Americans’ call records.

“This program is illegal and based on a blatant misinterpretation of the law,” Sensenbrenner said after a federal appeals court had ruled against the program in early May.

Continue reading

Switzerland mulls offering protection to Edward Snowden

(By Deutsche Welle ) Whistleblower Edward Snowden has maintained that he would prefer to find asylum in a democratic country. Could Switzerland secure his passage out of Russian exile?

Swiss authorities have reportedly concluded that they could protect former NSA contractor Edward Snowden from extradition to the United States, should he testify before a parliamentary commission on the National Security Agency’s espionage activities.

Switzerland’s weekly “SonntagsZeitung” gained access to a document leaked from the country’s attorney general, entitled “What rules would apply if Snowden was brought to Switzerland and the USA submitted an application for extradition?”

In the three-page document, the attorney general reportedly concluded that the whistleblower’s safety could be guaranteed inside Switzerland. The only obstacle would be “higher priority state obligations,” in other words, potential damage to Swiss-US relations.

In particular, the Swiss parliament could grant Snowden protection in the context of a hearing on the NSA, if the conclusion is made that his actions had “a primarily political character.”

Continue reading

Whistleblower law expands protection to US intelligence agents

(By Deutsche Welle) US President Obama has signed into law expanded whistleblower protections that cover intelligence agents for the first time. But the protections still do not apply to contractors, such as ex-NSA analyst Edward Snowden.

Five years after vowing to strengthen whistleblower rights, President Barack Obama has extended statutory protections to intelligence agency employees who report abuse, closing a major gap in a law at least ostensibly designed to shield federal workers from retaliation.

Part of the Intelligence Authorization Act of 2014, the provisions would protect intelligence agency employees from retaliation if they report waste, fraud or abuse to designated entities. Those entities include superiors at the agency in question, one of the inspector general watchdogs, and the House and Senate intelligence committees.

For the first time, intelligence agency employees can use whistleblowing as an affirmative defense if they suffer retaliation; for example, if their security clearance is taken away. In addition, they are protected from retaliation for cooperating with an investigation or providing testimony under oath. They can also appeal to an internal administrative board to have their grievances redressed.

“It’s a significant precedent,” Shanna Devine, the Government Accountability Project’s legislative director, told DW. “No time before in history have there been enforceable statutory protections for intelligence community government employees.”

Continue reading

EU mulls cyber defense against US surveillance

(By Deutsche Welle) Through its cyber security strategy, the EU has pushed its member states to bolster their defenses against digital attacks. But after the Snowden revelations, will this strategy include measures against US espionage?

As a key component of its official cyber security strategy, the European Union has explicitly emphasized the importance of protecting basic rights as its member states and the private sector bolster defenses against digital attacks.

Written in the pre-Snowden era, the document does not address the potential risk posed to EU citizens’ personal data by the intelligence agencies of allied nations. Europeans’ personal data was allegedly compromised by an old and trusted partner – the United States – and by the the United Kingdom, an important member state of the bloc.

Since adoption of the cyber security strategy in April of 2013, some EU officials have begun to explicitly identify surveillance by the US National Security Agency, or NSA, as a threat. Neelie Kroes, the EU’s digital agenda commissioner, welcomed initiatives in the US aimed at scaling back the NSA’s surveillance operations.

“But we also need to ask ourselves the right questions,” Kroes said in a speech at a cyber security summit last February. “Not why the US wanted to bug the phones of so many. But: ‘How did they manage to succeed?’ Why are we so unprepared and unsecured against such threats?”

One of the biggest challenges from an EU perspective is that the infrastructure of cyberspace lies largely in private hands and many of those companies are American owned, according to Neil Robinson, a cyber security expert with RAND Europe. As a consequence, regulatory heads in Brussels cannot always protect EU citizens’ personal data.

Policymakers need to examine potential ramifications of a separate European Internet – a concept under consideration, Robinson told DW. Such a development would represent “a fragmentation in a way, which would be in my personal opinion very concerning,” he said.

Continue reading

Drake: ‘There was no protection against reprisal’

(By Deutsche Welle) Former NSA senior executive Thomas Drake blew the whistle on a failed surveillance program called Trailblazer. He tells DW that the US whistleblower laws failed to protect him from retaliation within the NSA.

DW: When you decided to blow the whistle on waste and abuse at the NSA, at that time what sort of procedures were you required to follow and to whom did you have to report?

Thomas Drake: They call them proper channels. Within an agency there are administrative procedures in which you can report to your chain of command; you can go to the inspector general, the office of the inspector general for the agency; or you can also go to the office of general counsel. Generally, in matters like this you go to the chain of command and/or the office of the inspector general. In my case, I went through every channel within the agency.

The huge elephant in the room is what happens if you happen to work in the Department of Defense / national security arena. That’s where it’s far more problematic.

At the time that your case was unfolding, the law was the Intelligence Community Whistleblower Protection Act. Under that law, what kind of protections were you afforded or were you supposed to be afforded?

There technically aren’t any protections. When I went to Congress and also the Department of Defense Office of the Inspector General, [the Intelligence Community Whistleblower Protection Act] was the act that I invoked on a regular basis – every time I had formal communication with any officer, agent, investigator, or staffer.

By the way, this act also covered at the time both contractors and employees of parts of the intelligence community – it’s important to note [that] it’s not everybody because the military has its own inspector general chain of command; it has its own military whistleblower protection act, just to be very clear here.

The problem was they retaliated. I was reprised against severely within the proper channels, meaning I was identified as a troublemaker and there’s a whole story behind that. But the fact remains, I was authorized to report through the proper channels but there was no protection per se against reprisal or the threat of reprisal, even though it’s prohibited.

Continue reading

US whistleblower laws offer no protection

(By Deutsche Welle) The White House says that Edward Snowden should have reported his concerns within the NSA, instead of revealing surveillance programs to the press. But who exactly do US whistleblower laws protect?

Some eight months before Edward Snowden leaked classified NSA programs to the press, US President Barack Obama issued an order extending whistleblower protections to employees of America’s intelligence agencies. The White House often cites this fact when addressing the three felony charges against Snowden, in total carrying a maximum sentence of 30 years in prison. Two of those charges fall under the 1917 US Espionage Act.

In his January speech on NSA reform, President Obama said that he did not want to “dwell on Mr. Snowden’s actions or his motivations.” But five months earlier, the US commander-in-chief had already made clear that he did not view the 30-year-old as a whistleblower or patriot, saying that Snowden had failed to use official, non-public “proper channels” to express his concerns about NSA surveillance.

But Snowden has said that Obama’s extension of whistleblower protections to the intelligence community, under Presidential Policy Directive 19 (PPD-19), does not cover government contractors. Before his disclosures, Snowden was an employee of the company Booz Allen Hamilton, which contracted with the National Security Agency.

“If I had revealed what I knew about these unconstitutional but classified programs to Congress, I could have been charged with a felony,” Snowden said in a live, online question and answer session last Thursday.

Continue reading

Group promotes defense of whistle-blowers

(By Deutsche Welle) On Thursday, Edward Snowden held a live online chat to answer questions about his revelations. The Courage Foundation, which hosted the chat, offers people a way to contribute to Snowden’s legal defense.

In response to the recent crackdown on national security whistle-blowers, concerned journalists and activists have created a new fund to protect sources from legal retribution. The Courage Foundation has begun assisting former NSA contractor Edward Snowden and plans on expanding its client base to other journalistic sources who are being prosecuted for their revelations.

The foundation runs a website for Snowden, where anonymous donations can be made to support his legal defense. According to the site, over $99,000 has been raised so far. Granted temporary asylum in Moscow after the US State Department cancelled his passport last summer, Snowden is the latest national security whistle-blower to be indicted by Washington under the US Espionage Act. If convicted, Snowden could face up to 30 years in prison.

Six other whistle-blowers have been prosecuted by the Obama administration under the Espionage Act for passing along classified national security information to the press. Army Private Chelsea Manning, formerly Bradley, was convicted under the Espionage Act and sentenced to 35 years in prison last July for leaking hundreds of thousands of secret US diplomatic cables and war logs to WikiLeaks. Journalists have sharply criticized the use of the Espionage Act against leakers, saying that it could lead to the criminalization of national security reporting.

The Courage Foundation, originally called the Journalistic Source Protection Defence Fund (JSPDF), has emerged in reaction to the aggressive crackdown on Snowden and organizations such as WikiLeaks by Western governments, particularly the US and the UK.

“Its origin was in the clear perception of most journalists, who are involved in sensitive issues, that there is as a serious problem of protection of sources, their own privacy – protection of stories as well for that matter,” Gavin MacFadyen, director of the Centre for Investigative Journalism, told DW.

“It emerges out of that sense that nothing is sacrosanct anymore,” said MacFadyen, who sat on the JSPDF’s steering committee.

Continue reading