LEARNING GUIDE FOR A UNIT ON:
NATIONAL SECURITY WHISTLEBLOWERSPick one of these films to supplement a unit on national security whistleblowers. In each, the people involved talk about why they decided to go public, what they did, and the impact of the government's response. Any one of these films will demonstrate that the complex issues involved in national security whistleblowing, affect flesh and blood people.
(Contains Story of Franz Gayl & MRAPS) (Vietnam War's Most Important
Whistleblower; Ac. Award Nom)
(Ac. Award Winner, 2015 Best Doc.; (Stories of 3 Recent WBs)
Raises Important Questions)
War on Whistleblowers: Free Press and the National Security State — Age: 13+; No MPAA Rating (TWM estimates that it would be rated PG-13 for mature themes); Documentary; 2013, 67 minutes; Color. Available from Amazon.com.
The Most Dangerous Man in America — Age: 13+; No MPAA Rating (TWM estimates that it would be rated PG-13 for some scenes of dead and injured victims of war); Documentary; 2010, 92 minutes; Color. Available from Amazon.com.
Citizenfour — Age: 13+; MPAA Rating R for language; Documentary; 2015, 104 minutes; Color. Available from Amazon.com.
Silenced: — Age: 13+; Not Rated (TWM estimates that it would be rated PG-13 for some for mature themes); Documentary; 2014, 102 minutes; Color. Available from Amazon.com.
Note to Teachers: The role of whistleblower has evolved into an essential institution of modern society. However, employees who come forward to disclose fraud or illegal actions by their employers undertake substantial risks of getting fired or otherwise penalized for their actions. This has been recognized by the federal government and by many states that have enacted statutes or have adopted regulations to protect whistleblowers.
Whistleblowing involves conflicts between contractual and legal obligations to keep silent and what the whistleblower decides is an overriding value or loyalty. These conflicts are most acute when the whistleblower discloses national security secrets. Government employees who come forward with information about illegal government action in national security programs or about fraud and waste in those programs are subject to criminal prosecution, as well as, to dismissal from their jobs or other punitive employment actions. In addition, since the terrorist attacks of September 11, 2001 ("9/11") national security whistleblowers are being prosecuted with increasing frequency for disclosing information that the government wants to keep from the public.
This Learning Guide provides historical background, discussion questions, and suggested assignments to help raise questions about whether the actions of whistleblowers and the government response were justified. It also contains two unique additional sections: a Basic Framework for discussion of most national security whistleblower situations and a Final Exercise that provides two helpful paradigms for students to use in determining whether blowing the whistle is the right thing to do.
As with many political discussions, a person's position on national security whistleblowers will depend on his or her general attitude toward government and basic psychological feelings of security or insecurity. These views are often not amenable to logical discourse. Helping students understand the role of such basic attitudes in political debate will allow them to better appreciate their own reactions to many political questions, as well as the positions of others. This Guide contains information and questions to assist teachers in adding this concept to a unit on whistleblowers.
Description: The four documentaries present the argument for national security whistleblowers in different ways. Each film will personalize the topic and make it more interesting.
Citizenfour is a documentary that Ed Snowden arranged to be shot in real time as he made his disclosures. It raises very interesting questions about government surveillance. However, the movie has another fascinating dimension. Snowden knew that his only hope to avoid a long prison term or having to live the rest of his life in exile was a presidential pardon. This movie is part of his effort to build public support for that pardon. Students can actually be part of history being made as Snowden, through the medium of the film, reaches out to them saying, in effect, "I'm turning my life upside down, putting my freedom at risk, and this is why I'm doing it." This film is especially timely as President Obama's second term ends and he must make a decision on whether to pardon Snowden. Citizenfour won the Academy Award for Best Documentary in 2015.
Silenced discusses two other compelling whistleblower stories (Thomas Drake and Jesselyn Radack) as well as the ambiguous story of John Kiriakou, the only man prosecuted in relation to the U.S. government's torture program. (Kiriakou did not participate in the torture of terrorism suspects; his only connection with the torture program was that he was the first CIA official to publicly acknowledge its existence. None of the actual torturers or the people who authorized the torture program were punished, even when they exceeded permissible government guidelines for "enhanced interrogation techniques.")
The Most Dangerous Man in America tells the story of Daniel Ellsberg, the most important whistleblower of the Vietnam War and of the last century. Ellsberg is the model for modern national security whistleblowers.
Rationale for Using the Movie: Each of these films will supplement a unit on national security whistleblowers by putting faces to the names, highlighting the importance of the issues involved, and showing the impacts of the government's response on the lives of whistleblowers.
Objectives/Student Outcomes Using this Learning Guide: Students will gain an understanding of the complex issues involved in national security whistleblowing and the government's response. They will be provided with a framework for evaluating the actions of whistleblowers and two helpful paradigms to use in analyzing whistleblower situations.
Possible Problems: None.
LEARNING GUIDE MENU
LESSON PLAN SUGGESTIONS
Before or after showing the film, teachers can provide the information set out below through direct instruction on any of the following topics that are not fully explained in the movie.
Follow the introduction with selected discussion questions (see below) and assignments (see below).
At the conclusion of the unit, the class as a whole should try to come up with a way that national security whistleblowers in the future can evaluate their situation and make a decision about whether to go to the press and the public or to remain silent. See Final Exercise — When is Whistleblowing the Right Thing to Do? Paradigms for Evaluating National Security Situations.
SUGGESTED INTRODUCTION TO THE UNIT
Play for the class the fabulous TED Talk by Margaret Heffernan: The dangers of "willful blindness". This is 14:39 minutes.
Define the term "whistleblower":
Define the term "metadata":
For a description, from the script of Citizenfour of the potential harm from government surveillance that includes metadata collection, see The Power of NSA Surveillance and Metadata Collection in the sidebar.
Note to Teachers: Mr. Gayl's story is fully presented only in The War on Whistleblowers. In classes using one of the other movies, teachers can provide the following information through direct instruction.From 2003 to early 2008, over 60 percent of all American troop deaths in Iraq were the result of Improvised Explosive Devices (IEDs), also called homemade roadside bombs. The main patrol vehicle used by U.S. soldiers and marines at that time was the Humvee. The Humvee had a comparatively low mass and several of its critical parts were made of flammable aluminum. Its flat concave bottom focused blast energy into the vehicle, essentially creating a death trap for soldiers.
Mine Resistant Ambush Protected Vehicles (MRAPs) have V-shaped hulls on a raised chassis with thick armor plating that deflects the force of an IED blast outward. Marines and soldiers riding in MRAPs are ten times more likely to survive and to avoid death or serious injury from an IED explosion than if they are riding in a Humvee. By early 2005 officers in the field were making urgent requests for MRAPs to protect their troops. However, requests for MRAPs were held up in the military bureaucracy for 19 months during the height of the Iraqi insurgency because they competed for funding against programs favored by the Defense Department bureaucracy, including requests for more Humvees. Had MRAPs been available to U.S. troops, they would have prevented hundreds of GI deaths and thousands of maiming injuries.
Franz Gayl is an honorably discharged Marine. He later came back to work for the Marine Corps as a civilian evaluating weapons systems. In 2006, Gayl discovered why delivery of the MRAPs had been delayed and went up the Marine Corps chain of command all the way to the Office of the Secretary of Defense (he was denied access to the highest levels). At every step, he was told that the MRAP program was not a priority and that the Marines in the field would have to wait. Meanwhile, Marines and soldiers were dying and being maimed while riding in Humvees that triggered IEDs.
Finally, Gayl went to the press and to Congress. After Gayl went public, Senators Joe Biden, Democrat from Delaware, and Kit Bond, Republican from Missouri, among others, pressured the Pentagon to make the MRAP program a priority. Suddenly, the Defense Department embarked on a massive procurement program to get MRAPs to the troops as soon as possible. According to Defense Secretary Bob Gates, the MRAP program saved the lives of thousands of U.S. soldiers.
Two months after the start of the emergency MRAP procurement program, the Marine Corps reprimanded Gayl for speaking out, lowered his once-stellar performance evaluations, and revoked his security clearance. This essentially prevented Mr. Gayl from fulfilling his duties. He was also subjected to at least two investigations. The Corps even tried to indefinitely suspend him without pay. After a long and arduous battle during which Gayl received assistance from the Government Accountability Project, a nonprofit law firm that helps whistleblowers, a settlement was reached. Gayl was able to regain his security clearance and resume his old duties. As part of the settlement, Gayl became an adviser to the government on whistleblower policy.
Have Whistleblowers Compromised National Security?
The government contends that national security whistleblowers disclose secrets that must be kept in order to protect U.S. interests at home and abroad. The cases of two recent whistleblowers, Ed Snowden and Chelsea Manning, will help students understand some of the issues involved in whistleblowing.
Ed Snowden was a high-level security analyst assigned to the NSA. In this work he discovered several programs through which the government was collecting metadata information on millions of U.S. citizens. Snowden believed that these programs were illegal. However, in 2013 the Director of National Intelligence, Jim Clapper, testified to Congress that the government did not "wittingly" collect this type of information on millions of Americans. Snowden knew that this testimony was untrue and decided to risk his liberty and doom his career by taking government documents and submitting them to a team of responsible journalists. The journalist promised that before they published the documents, they would remove information that could lead to the injury or death of U.S. soldiers or intelligence agents. The journalists then published the vetted documents demonstrating, for example, that the government was engaging in metadata collection of information about the phone calls of more than a hundred million American citizens. (After Snowden's disclosures, Clapper claimed that he had merely forgotten these programs when he testified to Congress.)
The government has charged Snowden with several felonies, principally under the World War I-era Espionage Act. That law prohibits the sharing or dissemination of "national defense information" and was intended to be used against spies, not whistleblowers. However, the statute makes no distinction between leaks to the press in the public interest and sending national security secrets to a foreign spymaster. Nor is it a defense to a charge of violating the Espionage Act that the national defense information that was disclosed should not have been labelled secret in the first place, or that the disclosure revealed a government program that was illegal or unconstitutional, or that the information disclosed showed that high government officials had lied to the public or to Congress, or that the disclosure was in the public interest, or that the disclosure led to reforms. Snowden's supporters would claim that in any of these common sense defenses defenses were contained in the law, Snowden would have been able to take advantage of them.
The U.S. government claims that Snowden's revelations have allowed terrorists to change their methods of communication to avoid detection.
"The Islamic State has also studied revelations from Edward J. Snowden, the former National Security Agency contractor, about how the United States gathers information on militants. A main result is that the group's top leaders now use couriers or encrypted channels that Western analysts cannot crack to communicate,. . . ." ISIS Leader Takes Steps to Ensure Group's Survival by Eric Schmitt and Ben Hubbard, New York Times, 7/20/16;While it is obvious that Snowden's disclosures have had some negative effects on the efforts of U.S. intelligence, it is also likely that as U.S. counterterrorism efforts produce results, the terrorists will change their methods of communication to avoid detection. For example, since Snowden's revelations hit the press (June 5, 2013), the government itself has disclosed its intelligence gathering techniques when it described how its post-Snowden electronic surveillance disrupted a terrorist plot leading to the temporary closure of U.S. embassies in 22 countries. This disclosure resulted in a dramatic change in the way terrorists communicated. (See Qaeda Plot Leak Has Undermined U.S. Intelligence by Eric Schmitt and Michael S. Schmidt, New York Times, 9/29/13). No one has been prosecuted for these disclosures.
Note that there was one incident when Snowden's method for keeping sensitive intelligence information from the terrorists didn't work. In 2014, data from the year 2010 relating to an NSA agent in Mosul, Iraq, and his source were, by mistake, not redacted from a document published by the New York Times. When confronted with this, Snowden admitted that mistakes will happen, that this is a risk of making the disclosures, and that this mistake was "on me."
In addition, Snowden's disclosures caused embarrassment to the U.S. when, for example, it was revealed that the NSA was listening to the phone conversations of the leaders of U.S. allies such as Germany.
On the other hand, Snowden's revelations about metadata collection of information from the telephone calls of American citizens gave rise to a heated public debate concerning the legality and appropriateness of these programs. In 2015, in response to that debate, the government stopped collecting metadata on the phone calls of American citizens.
Key to Snowden's justification for his revelations were false statements to Congress by high government officials denying that the intelligence establishment was conducting metadata surveillance. See False or Misleading Statements to Congress by the Director of Intelligence and the Head of the NSA About the Extend of Government Data Collection. The fact that Snowden's actions caused a public debate shows that they were of great value to American democracy. The fact that as a result of that debate, the government was forced to change its practices and that it no longer collects metadata on domestic phone calls confirms that value.
The question remains, however, whether the detriment to U.S. intelligence gathering on foreign and domestic threats was worth the benefit to American democracy of: (1) the public knowing the truth about metadata collection; (2) having an informed public discussion about metadata collection; and (3) the termination of the program.
Snowden fled the U.S. to avoid prosecution but was trapped in Russia when the U.S. revoked his passport. For now, Russia has provided Snowden with a safe haven. Snowden has chosen exile rather than return to the U.S. to fight what he and many others consider to be the stacked deck of the Espionage Act charges.
From Russia, through media appearances and interviews, Snowden has tried to continue to participate in the public debate over government surveillance and national security whistleblowers. Snowden has also been honored by several pro-whistleblower groups. Snowden and his supporters are, no doubt, hoping for a presidential pardon before Barak Obama leaves office in January of 2017.
Chelsea Manning - Previously Known As Bradlee Manning - Injury to U.S. Diplomacy
Chelsea Manning, formerly known as Bradlee Manning, was a troubled low-level U.S. intelligence analyst who had access to secret information. Manning was horrified by what she saw occurring in the Afghanistan and Iraq wars and concerned about the connection between large corporations and U.S. diplomacy. She reportedly stated that, "If you had free reign over classified networks . . . and you saw incredible things, awful things . . . things that belonged in the public domain, and not on some server stored in a dark room in Washington D.C. . . . what would you do?"
In 2010 Manning provided Wikileaks with videos of U.S. air strikes in which civilians were killed, as well as 251,287 confidential U.S. diplomatic cables and 482,832 raw Army field reports from the Iraq and Afghan wars. There was immediate concern that such a massive disclosure of sensitive data would be harmful to national security.
Manning was found out, arrested, and court-martialed. After pleading guilty to 10 counts, she was found guilty of 11 more, including violation of the 1917 Espionage Act. However, she was acquitted on the most serious charge of aiding the enemy. This was the only charge which required the government to prove that it was actually harmed by Manning's actions. Manning is now serving her sentence in a U.S. military prison. Her appeal is pending.
Manning's document release included confidential U.S. diplomatic cables in which State Department officials were critical of foreign leaders and were shown to be spying on U.N. officials. These revelations embarrassed the U.S. with its allies, other foreign nations, and the U.N. The State Department claimed that Manning's disclosures had a "chilling effect" on the willingness of foreign officials to talk as freely with U.S. diplomats as they had before. Most of Manning's disclosures related to matters such as uninvestigated civilian casualties and reports from past battlefields. They included hitherto unreleased photos of the killing of journalists and civilians by a U.S. helicopter crew, evidence of uninvestigated contractor wrongdoing in Afghanistan, uninvestigated reports of torture in Iraq, and information about the role of corporate interests in international diplomacy.
Chelsea Manning has received many awards from whistleblower groups, but she is a very controversial figure due to the fact that her disclosures consisted of a massive data dump of sensitive classified material without any editing to protect intelligence sources. Initially, Wikileaks tried to edit the material Manning had provided to avoid disclosing the names of operatives. However, the U.S. government refused to cooperate and, apparently due to an error, the entire archive was made available on the Internet. It is charged that this information caused immense harm to U.S. diplomacy and that Manning's revelations showed corruption in Arab countries contributing to the Arab Spring. However, U.S. Defense Secretary Robert Gates said that concerns over the damage caused by the leaks were "significantly overwrought."
Conclusion: The contrast between Manning's case and that of Snowden is instructive. Clearly, Snowden showed the terrorists some ways that the U.S. could be spying on them and they could change their tactics accordingly. However, a government panel appointed by President Obama found that there was not a single situation in which metadata had helped foil a terrorist attack. In addition, as plots are foiled and the government announces its victories over terrorist plots, information about its intelligence collection capabilities will be revealed by the government itself. The same criticism cannot be said of Manning's disclosures which caused only embarrassment to U.S. diplomats. Manning was acquitted of the only charge that required the government to demonstrate that she had harmed national security. However, Snowden's disclosures brought substantial benefits to U.S. democracy by sparking a national debate over whether the government had overstepped its authority. In addition, the government stopped collecting metadata as a result of that debate. It appears that the benefit from Manning's disclosures was much less and related to one specific instance of the killing of reporters and to civilian casualties from drone strikes in general. However, it was previously admitted by the government that drone strikes did cause civilian casualties.
National security whistleblowing will usually disclose methods and means of U.S. intelligence, if not in specific ways, then certainly in general ways. The question that the whistleblowers must answer, and that society must answer in judging their actions, is whether the detriment from the disclosures are worth the benefit to the American people from knowing what their government is doing. Answering this question is always problematic because the only people with perfect knowledge of whether national security has been compromised are the terrorists and enemies of the U.S., and they're not talking about it. The people with the second-best knowledge are the intelligence agencies who have a need to maintain secrecy, a vested interest in playing up the damage caused by national security whistleblowers, and a desire to punish people they consider to be turncoats. For the security agencies to disclose all the damage caused by a national security whistleblower could itself require the disclosure of sensitive secret national security information.
However, in a democracy, voters must make decisions on national security issues with only imperfect knowledge. The role of the public in curbing foreign wars, for example forcing the government to end the Vietnam war, shows that the public's decision, even without secret information, can be more perceptive and wiser than those of the President and Congress.
Government Sanctioned "Leakers," Selective Prosecution, and Disparate Treatment: Supporters of national security whistleblowers point out that "leakers," government officials who provide secret classified information to the press in the interests of the government or for their own political purposes, act illegally but so long as they act within the penumbra of disclosures permitted by government leaders, they are not prosecuted. Supporters of whistleblowers also point out that even when leakers or others favored by the government are prosecuted in relation to the disclosure of secret government information, they receive more lenient treatment than whistleblowers.
Under U.S. law, prosecutors such as the Attorney General and the various district attorneys have complete discretion about whether or not to charge a person with a crime, in deciding which crimes will be in the indictment, in determining which plea bargain to offer a defendant, and as to what sentence to recommend. When "leakers" and others favored by the government commit crimes, the prosecutors often simply do not charge them or, if they do bring charges, the prosecutors will choose lesser charges, offer lenient plea deals, or recommend probation rather than prison terms. National security whistleblowers claim foul because the government often pursues them with a vengeance.
A good example of high-level officials, who were not prosecuted for revealing secret national security information occurred when the Obama Administration wanted to focus the public's mind on its triumph in finding and killing Osama bin Laden. The makers of the film Zero Dark Thirty, which was about that event, were given unprecedented access by the government. They were told about a number of previously classified details of the raid. This classified information included the previously secret identity of the Seal Team 6 member who was in charge of planning the mission. This was a classic "leak." It turns out that the leakers were none other than Defense Secretary Leon Panetta and the Defense Department's top intelligence official. The leakers never faced prosecution for their actions.
Another example of unpunished leaking occurred when NSA officials disclosed that its surveillance of telephone calls between Al-Quaeda leaders had foiled a plot that led to the temporary closure of 22 U.S. embassies. The terrorists immediately started using other means to communicate, and that window onto their activities was lost. It was reported that this leak caused more damage to U.S. intelligence effort than all the documents disclosed by Snowden. See, e.g., Qaeda Plot Leak Has Undermined U.S. Intelligence by Eric Schmitt and Michael S. Schmidt, New York Times, 9/29/13.
Then there was the situation of General David Petraeus. General Petraeus was in charge of the Iraq war at the time of the Sunni insurrection. He performed brilliantly and is credited with important advances for U.S. forces. However, while he was in Iraq, General Petraeus started to have an affair with Paula Broadwell, a reporter certified by the Department of Defense to receive some level of classified information. She was working on a biography of the general and interviewed him for the book. Petraeus gave her his secret diaries which contained a trove of classified information. It violated secrecy regulations for Petraeus to let the diaries go outside of a protected government facility. Some classified information from Petraeus ended up on Broadwell's computer, and the FBI found it. There was no evidence that Broadwell ever published the classified information or misused it in any way.
Petraeus was not only a general who did an excellent job, he was later promoted to be head of the CIA. When the FBI began to investigate the security breach, Petraeus initially denied the charges but later pled guilty to one count of unauthorized removal and retention of classified information. The scandal forced Petraeus to resign from the CIA and leave government in disgrace. His sentence in the criminal case was probation and a fine. He was allowed to keep his generous military pension.
Even if the prosecutors decide to file charges and gain a conviction, presidents have the absolute power to pardon or to commute sentences. Leakers and others who the government favors have also benefitted from presidential pardons. Whistleblowers, however, are seldom pardoned.
Recent U.S. history has many examples of Presidents granting pardons in controversial cases, but almost never in favor of whistleblowers. For example, President Ford pardoned Richard Nixon who had resigned in disgrace over his criminal conduct in the Watergate scandal. President Regan pardoned six people involved in the Iran-Contra affair which was a conspiracy to sell arms to Iran to provide funds to the Nicaraguan contra rebels in violation of an act of Congress. While there were several prosecutions of officials involved in the conspiracy, no one went to jail for their illegal actions relating to Iran-Contra. (One participant was convicted and sent to jail for the unrelated charge of hiding his income from the deal and not reporting it to the IRS.)
With respect to the disclosure of government secrets, President George Bush used his pardon power to commute the 30-month prison sentence of Scooter Libby, Vice-President Dick Chaney's chief of staff who was convicted of lying to a grand jury and to the FBI in relation to an investigation of the leak of the identity of clandestine CIA agent Valerie Plame. Apparently, Ms. Plame's husband had angered the office of the Vice-President when he criticized the selective use of intelligence reports to support the erroneous premise that Saddam Hussein was trying to develop weapons of mass destruction. It was this misconception that the government used to justify its decision to start the ill-fated second Iraq War. See the Supplemental Materials to this Guide for more on the Scooter Libby case.
If the prosecutors or the President felt that Panetta, Libby, and Petraeus had made outstanding contributions to their country, why shouldn't they be protected or shown some appreciation for their outstanding work? The supporters of whistleblowers respond that whistleblowers too, have provided valuable service to the public, and --> in addition, have risked being fired and imprisoned for their actions. However, the fact that that prosecutorial and presidential choices may be seen to favor those who have served the national security apparatus of the state means that people who believe that these discretionary powers should also be exercised on behalf of whistleblowers need to work to elect leaders who will be sympathetic to the arguments on behalf of whistleblowers.
Issues Involved in Whistleblowing
Whistleblowing involves a conflict between legal, moral, and social values that require silence and an obligation to a higher value such as morality, the public good, the law, or the Constitution. When the disclosure of state secrets is involved, there are very strong arguments against whistleblowing. The most important is that in almost every situation, whistleblowers don't know all of the facts and there are people above the whistleblowers who probably know more and who have sanctioned the actions to which the whistleblowers object. The second is that the whistleblowers' actions could imperil important national security interests, and in some cases, they could put the lives of soldiers or intelligence operatives in danger. Finally, not only have the whistleblowers most likely signed legally binding agreements to keep everything learned while working for the government a secret, there are strong criminal laws prohibiting disclosure of national security information. Violating these laws could send whistleblowers to jail for a very long time. In addition, whistleblowers will be betraying the trust of their employers; they will earn the enmity of all of their coworkers and colleagues.
A Basic Framework for Analyzing National Security Whistleblower Decisions:
Any discussion of national security whistleblowing should take account of the following points:
1. Basic American political theory holds that government power needs to be constrained or it will be abused: A basic principle of American democracy is that the government, if not restrained, will overstep its bounds and deprive citizens of their rights. This is the reason our government is set up with a separation of powers between the Congress, the Judiciary, and the Executive; it is the reason that we have a Bill of Rights. Since 9/11 the actions of the U.S. government in its secret surveillance programs have demonstrated this principle yet again. The public's interest in informed popular debate does not simply vanish at the invocation of the words "national security," "National security is public security, not government security from informed criticism." Judge J. Harvie Wilkinson concurring in United States v. Morison, 844 F.2d 1057, 1081 (4th Cir.1988).In this Learning Guide these concepts will be referred to as "the Basic Framework."
After watching the film, engage the class in a discussion about the movie. Some suggested questions are set out below.
See the Sidebar for specific questions relating to War on Whistleblowers and Citizenfour.1. [As to any national security whistleblower whose case the class has studied, ask the question:] Is this person a hero or a traitor or something in between? Should he or she be prosecuted, rewarded, or just left alone? Suggested Response: Teachers should guide discussions so that they include the points in the the Basic Framework.
2. Should the President pardon Edward Snowden [Bradlee Manning, Jeffrey Sterling, John Kiriakou]? [Teachers: Ask each student in turn to provide an argument or a fact in support of or in opposition to the pardon. As students talk, you may want to summarize the points in a pro/con T chart.] Suggested Response: Teachers should guide discussions so that the students will begin to recognize the facts, arguments, and considerations set out in the Basic Framework.
3. What is meant by the term, "the military industrial complex?" Suggested Response: It is a loose association of corporations, the military, the CIA, the NSA, and other government agencies with duties relating to homeland security and foreign affairs, persons employed or who expect to be employed by those businesses or agencies, and politicians. All of these people, businesses, and agencies have an economic interest in keeping the country on a partial war footing.
4. What is meant by the term, "the National Security State?" Does it really exist? Suggested Response: It is a government mobilized to seek intelligence on anyone and anything, and that is willing to invade the privacy of its citizens and residents to suppress perceived internal threats. Any doubt about the existence of the national security state must be able to explain the treatment of Laura Poitras who made a film critical of the U.S. war in Iraq and was then searched each time she crossed a U.S. border. She eventually had to relocate temporarily to Germany. As Edward Snowden wrote to her,
5. Private companies like Google and Facebook collect immense amounts of data about our individual interests, likes, and dislikes, political opinions etc. and use that information to make money by helping others sell us products. Answer two questions: a) is privacy an outmoded concept and b) if private companies have this information (and the metadata on our phone calls), why shouldn't the government? Suggested Response: These are major questions for Western society, and no one has yet come up with a definitive answer. As to a), good responses will include the following concepts: we consent to providing this information by using the Internet and various websites on the Net; however, the Internet is an essential part of modern life, like electricity and roads; one can't live a modern life without it; also, the invasion of privacy caused by these companies is, at this point fairly minimal; all they do with the information is to create and place advertisements. With respect to b) private companies do not have the power to prosecute and imprison or a history, as governments do, of persecuting people for their beliefs.
6. Compare the actions of a national security whistleblower to the actions of a soldier who disobeys a direct order which he believes to be illegal. Suggested Response: [This question is a preview of the final exercise of this Learning Guide in which students are asked to develop a way to evaluate the actions of national security whistleblowers.] TWM suggests that this is an apt comparison. The problem for both is that they are taking the position that their knowledge of the situation is adequate to make a decision, that their analysis is correct, and that the values that lead them to act are more important than the legal obligations, either to keep the secrets or to obey the order they consider to be unlawful. If they are wrong, both whistleblowers and soldiers who refuse an order they deem unlawful may cause serious damage, and they risk paying a heavy price if those in authority decide to go after them.
7. Compare whistleblowing to the civil disobedience component of non-violent direct action. Suggested Response: [This question is also a preview of the final exercise of this Learning Guide.] They both involve a violation of law. They are both public and out in the open, and most whistleblowers are willing to face the government prosecution and defend themselves in court. Edward Snowden has, so far, accepted exile rather than face a prosecution. In that sense, he is not a classic whistleblower.
8. It has been said that one of the goals of a terrorist is to make you different from the person you want to be. This also works on a societal scale: one of the goals of a terrorist is to make a society different than what its people want it to be. What is meant by that? Suggested Response: A major goal of the U.S. and other Western Democracies has been to create open, inclusive, tolerant, and ethical societies governed by the rule of law. To the extent that the government and society mobilize to fight a terrorist threat, those values tend to be sacrificed in order to enhance security.
9. Whistleblowers usually have mixed motives for what they do. Should there be a "purity of motive test" for whistleblowers? One of the arguments often made against whistleblowers is that their motives are selfish and that they don't act for the public interest but rather for their own personal reasons or for some type of personal gain. Comment on the following statement relating to John Kiriakou who claims that he made his disclosures about the torture program in an attempt to protect the CIA from being singled out for blame when the torture program had been approved by the White House and government lawyers. However, the press played up the interview as the first admission by a former CIA operative that the U.S. had been torturing terror suspects. Also, soon after the interview in which Kiriakou discussed the enhanced interrogation program, ABC News, which had aired the interview, offered Kiriakou a consulting contract worth several thousand dollars a month. In your response, comment on the following passage from an article in a well-respected magazine:
"Which matters more? Kiriakou's motives and his reliability, or the fact that, however inelegantly, he helped to reveal that a sitting President ordered international crimes? Does the emphasis on the messenger obscure the message? "Whistle-blowers' motives are often complicated," Jameel Jaffer, of the A.C.L.U., said. Disclosures that are in the public interest, even if they are made for selfish reasons, deserve protection nonetheless. "The truth is that the New York Times' motives were also complicated when they published the Pentagon Papers," Jaffer said. "At the end of the day, without national-security whistle-blowers who are willing to risk their careers, or more, in order to expose government abuses, we really wouldn't know very much about these extreme policies that were put in place under the last Administration [George W. Bush]." Even if such a leaker deserves sanctions, Jaffer added, a fine or community service is a more appropriate punishment than years in prison." The Spy Who Said Too Much by Steve Koll, The New Yorker 4/1/13; Mr. Koll is the dean of the Graduate School of Journalism at Columbia University and reports for the New Yorker on issues of intelligence and national security in the United States and abroad.Suggested Response: Motivation should not play a role in the evaluation of a whistleblower because that can always be challenged, drawing attention away from the fact that that whistleblower served the public interest. Intentions are subjective and questioning intentions of whistleblowers opens the door to persecution. The question, is whether the disclosure was in the public interest.
10. If the government is doing something that is criminal or that violates the constitutional rights of Americans, are people who carry out these actions also committing a crime or violating the Constitution? Are people who know about the crimes or unconstitutional actions but do nothing to stop them accessories to a crime? Suggested Response: If the people know or have reason to know that the conduct is criminal or against the Constitution, the answer to both questions is, "yes." But what if they are told by their superiors that the conduct is essential to national security and has been approved at the highest levels? Then the response is much more debatable.
11. The fundamental ethical revelation of the Abrahamic Religions (Judaism, Christianity, and Islam) is the Golden Rule. Similar concepts are also the basis of most other religious and non-religious ethical formulations. How does the Golden Rule relate to whistleblowing? Suggested Response: If the government is committing a crime or violating constitutional rights, or people are committing fraud, waste, or abuse of government office, the public should know about it. If a business is cheating the government or putting harmful products on the market and lying about it, the public should know. A whistleblower would want to know, too. A whistleblower is "loving thy neighbor as thyself;" doing for another what he or she would have them do for him or her. "
12. Would clamping down on whistleblowers make us safer? Suggested Response: See the Basic Framework.
13. Public officials in the U.S. take an oath to uphold the Constitution and laws of the country. The Constitution takes precedence over the laws, and laws that are unconstitutional on their face or as applied are not valid. What does this mean for a whistleblower who, like Snowden, discloses what he thinks to be unconstitutional conduct but in so doing violates the secrecy laws and his agreements to keep the government's secrets. Suggested Response: The argument is, for example, that since Ed Snowden violated secrecy laws by disclosing the existence of an unconstitutional program that was being hidden from the American people by the government, the application of the secrecy law to Snowden was unconstitutional, and the secrecy law as applied to him was therefor invalid. The government and the courts do not generally interpret the law in this way. They would say that the obligation is to work through the secret channels of the government and that frustration with one's efforts to get change through normal channels is never adequate to justify disclosure to the public. Obviously, Snowden and those who support national security whistleblowers do not agree.
14. Why was the result in the Franz Gayl case unusual? What does this tell us about the risks of whistleblowing? Suggested Response: Gayl's case is unusual because he got his job and his security clearance back. The skills of whistleblower are in the business that they betray in favor of the public interest. Thus, after a person has blown the whistle, it's hard for anyone else in that business or in any other government agency to trust them. Whistleblowing is referred to among reporters as "The sound of professional suicide." As reporter Eric Lichtwel of the New York Times said, "It's almost always bad for [the whistleblowers]."
15. [Before asking this question, make sure students know about Watergate and Mark Felt (Deep Throat). See Learning Guide to All the President's Men. This is a statement by a reporter shown in the film Citizenfour. Is this guy paranoid or are his concerns valid?
One of the first things [that every dictatorship down through the years has needed] to do is try to acquire knowledge of their population. And that's exactly what these [electronic surveillance] programs do. I see this as the most major threat to our democracies all around the world.The
Any of the discussion questions can serve as a writing prompt. Additional assignments include:
1. Research the cases of one of the following whistleblowers and develop a thesis on the following topics: (a) whether their actions were justified and (b) whether they were correctly treated by our government, or in the case of Wigan, Silkwood and DeKort, their employers. After some of the names, there will be a note giving you a heads-up on an issue to deal with in your analysis.
2. Research and compare the government's treatment of people who violated the law or disclosed national security secrets but who were given favorable treatment, such as Scooter Libby, General Petraeus, or Leon Panetta (Zero Dark Thirty incident) with the way the government has treated national security whistleblowers such as Edward Snowden, Thomas Drake, Jeffrey Sterling, John Kiriakou, and Daniel Ellsberg. Was the government correct in its actions with respect to these individuals? Include in your essay, a response to the following questions: (a) The decision-makers in the government felt that Libby, Petraeus, and Panetta had made outstanding contributions to the USA. Why shouldn't they be protected or shown mercy? As to Panetta, was his rank sufficiently high to exempt him from the secrecy laws? (b) Whistleblowers such as Snowden also contributed something valuable to our society, why shouldn't their contributions be recognized by the government? (c) How does the existence of an informal military-industrial complex that President Eisenhower warned the nation against on January 17,1961, that seems now to be a military-industrial-intelligence complex, play in your analysis?
3. John Kiriakou was sent to jail for confirming, to a reporter, the identity of a clandestine CIA operative. He was the only person prosecuted in relation to the illegal torture program. Kiriakou points out that "when the government chooses among similarly situated people and charges only those who have publicly spoken out against the government's position, the government engages in selective prosecution." Write an essay about the problem of selective prosecution of whistleblowers who disclose classified government information.
4. Perform your own Internet research and decide whether you think the President should pardon any whistleblower who has been pursued by the government, such as Edward Snowden, Chelsea Manning, or Thomas Drake. Write a detailed letter to the President giving him your position on whether he should or should not pardon them. A copy of the letter should also be sent to the then sitting attorney general of the U.S.
5. Research and write an essay on any of the following topics:
6. While he was campaigning for the Presidency, on August 1, 2007, Barak Obama promised that his administration would not "spy on citizens who are not suspected of a crime." What happened between then and 2013 when the NSA was collecting metadata on hundreds of millions of Americans were not suspected of a crime? Does power corrupt? Is this the old adage that when given a chance, government will overstep its bounds?
7. Ed Snowden explained why he risked imprisonment or exile to disclose what he considered to be the NSA's illegal and unconstitutional surveillance of Americans with this statement:
So, for me, it all comes down to state power against the peoples' ability to meaningfully oppose that power. And I'm sitting there every day getting paid to design methods to amplify that state power. And I'm realizing that if [the policy of the government changes and it decides to try to suppress dissent] you couldn't meaningfully oppose these. I mean you would have to be the most incredibly sophisticated, technical actor in existence. I mean, I'm not sure there's anybody, no matter how gifted you are, who could oppose all of the offices and all the bright people, even all the mediocre people out there with all of their tools and all their capabilities. And as I saw the promise of the Obama administration be betrayed and walked away from and in fact, actually advance . . . the things that had been promised [by President Obama] to be sort of curtailed and reigned in and dialed back, and [they] actually get worse, . . .Answer each of the following questions and explain your answers: Do you agree with Snowden? Would you make the same choice? Was his sacrifice worth it?
8. President Obama on Ed Snowden:
Mr. Snowden has been charged with very serious crimes, and he should be returned to the United States where he will be granted full due process and every right available to him as a United States citizen... facing our justice system under the Constitution. No, I don't think Mr. Snowden was a patriot. I called for a thorough review of our surveillance operations before Mr. Snowden made these leaks.On the other hand, while acknowledging that he has committed a crime, many other persons from the Obama administration have acknowledged that Snowden performed a public service, Write an essay stating whether you think Snowden is a patriot, a traitor, or something in between. Explain why.
9. One of the persons shown in Citizenfour said the following:
In 2008, they eliminated the warrant requirement for [collecting data on] all conversations except ones that take place by and among Americans exclusively on American soil. So they don't need warrants now for people who are foreigners outside of the US, but they also don't need warrants for Americans who are in the United States communicating with people reasonably believed to be outside of the US.Do you believe that the government programs described in this quote are a threat to liberty? Take a position and justify it.
For additional assignments, see the Supplemental Materials for this Learning Guide.
FINAL EXERCISE — When is Whistleblowing the Right Thing to Do?
Paradigms for Evaluating National Security Situations
Develop a proposal on how to make a decision on whether or not to disclose national security secrets in a situation in which government officials are committing illegal acts, such as torture, invasion of privacy, or fraud. In your analysis, consider whether: (1) the rules for soldiers that require them to disobey an obviously illegal order and/or (2) the civil disobedience component of nonviolent direct action offer possible paradigms for evaluating such a decision.
Background for Teachers — Give appropriate portions of this information to the class: For hundreds of years there has been a debate about whether obedience to an order should be a defense when a soldier was accused of committing a crime. After WWII, Nazis and German military personnel were prosecuted by the Allies for war crimes. The trials were held in Nuremberg, Germany. The defendants asserted that they were just following lawful orders. This defense came to be called, "The Nuremberg Defense." It has also been called, "the obedience to orders" defense.
Alternative ways to structure the unit: Provide a limited introduction and (1) have each student (or small groups of students) prepare reports on the case of a whistleblower, evaluating both the actions of the whistleblower and the response of the government or the employer using the Basic Framework; the class can then discuss the conclusions; for a partial list of report subjects see Suggested Assignment #1 below; or (2) have the class research and debate the case of several whistleblowers, discussing, as to each (a) whether the whistleblower was justified in violating his or her secrecy obligations; (b) whether the government response was justified; and (c) different treatment given to people favored by the government who disclosed classified information, see Suggested Assignment #2, below).
Whistleblowing in a business Context:
A good example of whistleblowing in business is provided by the actions of Dr. Jeffrey Wigand, a former tobacco company executive. In 1996, he was the first tobacco company executive who admitted that the tobacco companies were lying when for decades they had denied that nicotine was addictive and when they claimed that the evidence that tobacco use impaired health was inconclusive. In fact, the companies knew all along that nicotine was addictive and that smoking caused cancer and heart disease. They lied to their customers, to the American people, and to Congress. Dr. Wigand, who has a Ph.D. in biochemistry and is not a medical doctor, had signed a legally binding contract to keep secret any information that he learned while working for his employer. After he had been dismissed from his job for unrelated reasons, Dr. Wigand breached his contract and "betrayed" the trust of his former employer by going to the press with what he knew. In so doing, he helped to save the lives of millions of people who might have otherwise taken up the habit of smoking. Dr. Wigand resolved the conflict between his legal obligations and his duty to the public as a whole by opting for public disclosure in breach of his agreements. Later, he became an award winning high school chemistry teacher. See Learning Guide to The Insider
Another example of a business whistleblower is Michael DeKort, a systems engineer for defense contractor Lockheed Martin. He was assigned to work on the Coast Guard's "Integrated Deepwater System Program." This was a 25-year effort by the Coast Guard to update its vessels and their equipment. In 1996 DeKort revealed that his employer had refused to correct critical defects in the program such as radio equipment on the boats that was not waterproof and ship hulls that would buckle in high seas.
Prior to August 22, 2013, Chelsea Manning was known as Bradlee Manning and identified as a homosexual male. He was diagnosed with gender identity disorder. The day after sentencing, Manning announced that she had always felt that she was really a woman. She changed her gender identification to female and asked henceforth to be known as Chelsea Manning. She has been qualified to receive hormone replacement therapy while in prison.
In this Learning Guide, the term "leakers" will refer to officials of the government who provides secret or confidential information to the press or to the public to serve their own political or professional interests or the interests of the agency who which they work. Leakers are almost never prosecuted.
"Whistleblowers," on the other hand, disclose information that those in control of the government or of the agency for which they work want to be kept secret. True whistleblowers act in the service of ethical or legal duties or for the benefit of society as a whole, deciding that these duties are more important than the obligations under law or contract that require secrecy. Often whistleblowers abandon loyalty to their coworkers or to the control group of the agency for which they work when they make the disclosures. National security whistleblowers risk both prosecution and dismissal from their jobs.
Parenting Points: Watch the movie with your child and discuss a few points from the Basic Framework.
Reminder to Teachers: Obtain all required permissions from your school administration before showing any film.
Teachers who want parental permission to show this movie can use TWM's Movie Permission Slip.
Special Questions for classes shown War on Whistleblowers:
What important points does this film neglect to raise? Suggested Response: There are a few: 1) whether the national security whistleblowers described in this film caused any damage to national security; 2) the fact that there is a need for increased surveillance of citizens and residents in order to combat terrorism; (3) the government does have a legitimate need to keep some secrets; and (4) the most difficult question when debating national security whistleblowing is where to draw the line between the need for some government secrecy and the need for increased surveillance to fight terrorism, on the one hand, and the public's right to know what the government is doing and citizens' right to privacy, on the other.
Two Special Questions for classes shown Citizenfour
A. Citizenfour shows Ed Snowden in real time making the disclosures for which he was indicted. He arranged for the documentary to be made. Snowden knew that his only hope to avoid a long prison term or exile was a presidential pardon, and this movie is part of his effort to build public support for that pardon. Through the medium of the film, Snowden is reaching out to the viewer, saying in effect, "I'm turning my life upside down, putting my freedom at risk, and this is why I'm doing it." Given the movie and everything you know about Snowden's disclosures, are you convinced? Suggested Response: There is, of course, no one correct answer to this question. Good responses will include a discussion of the following concepts from the Basic Framework: Category #1: Some of the programs that Snowden revealed were of questionable legality and allowed the government to invade the privacy of U.S. citizens; Category #2: High government officials had falsely denied the existence of metadata collection programs in sworn testimony to Congress; Snowden's revelations resulted in a public debate about metadata collection and eventually to a change of government policy, i.e., the U.S. no longer collects metadata on citizens' phone calls; in that way Snowden's revelations have been a valuable contribution to American society; in addition, Snowden's revelations made it clear to many Americans that their government, even under an administration that promised transparency, cannot be trusted to make the right decisions when balancing the need to for intelligence information and the people's right of privacy; Category #3: While it is obvious that Snowden's disclosures revealed some means and methods of U.S. electronic intelligence collection, the government has yet to come forward with a clear explanation of instances in which those disclosures significantly compromised national security. Good responses will also include a recognition of the responder's psychological bias (Category #4) and a balancing of Categories 1 - 3.
B. Describe the ways in which Edward Snowden's actions have deviated from what one would expect from the perfect whistleblower. Suggested Response: It is not clear that Snowden went up the chain of command at the NSA to protest the illegal scope of the government surveillance programs that he disclosed. He said he talked to some of his superiors, but there is not much of a paper trail of his complaints. However, the Director of Intelligence, James Clapper, and the Director of the NSA, Keith Alexander, had recently falsely testified that the metadata collection program did not exist in testimony given under oath to Congress. Thus, there didn't appear to be much hope of getting the NSA to change its actions voluntarily. Second, Snowden fled to avoid prosecution and now lives in exile. Classic whistleblowers fight the government when it tries to prosecute them. Often, the government case collapses, and the whistleblower either goes free (Ellsberg, Tamm) or the government offers an embarrassingly small plea deal such as an agreement to one misdemeanor charge (e.g., Drake). However, it often costs the whistleblower many hundreds of thousands of dollars in legal fees to fight off the government.
The Power of NSA Surveillance and Metadata Collection:
The following are excerpts from the script of Citizenfour. They make interesting points and can be used with any of the films. :
"There's an infrastructure in place in the United States and worldwide... that NSA has built, in cooperation with other governments as well... that intercepts basically every digital communication, every radio communication, every analog communication that it has sensors in place to detect. And with these capabilities, basically, the vast majority of human and computer-to-computer communications, device-based communications, which sort of inform the relationships between humans, are automatically ingested without targeting. And that allows individuals to retroactively search your communications based on self-certifications.
"So, for example, if I wanted to see the content of your email, or, you know, your wife's phone calls, or anything like that, all I have to do is use what's called a "selector," any kind of thing in the communications chain that might uniquely or almost uniquely identify you as an individual. And I'm talking about things like email addresses, IP addresses, phone numbers, credit cards, um, even passwords that are unique to you that aren't used by anyone else. I can input those into the system, and it will not only go back through the database and go, "Have I seen this anywhere in the past?" It will, basically put an additional level of scrutiny on it, moving into the future, that says, "If this is detected now or at anytime in the future I want this to go to me immediately, and alert me in real time" that you're communicating with someone. Things like that... .
"All these new VOIP phones, they have little computers in them, and you can hot mike these over the network... all the time, even when the receiver's down. So as long as it's plugged in, it can be listening in on you. . . .
"The US government has the ability to get not only metadata, but the actual content of your emails or what you say on the phone, the words you type into Google searches, the websites you visit, the documents you send to colleagues. This system can track nearly everything that every individual is doing online. So if you're a journalist investigating the American government, if you work for a company with American competitors, or if you work in human rights involving the American government, or any other field, they can very easily intercept your communication.
"If you're an American living in the US, they have to seek permission from a court, but they always get it. But if you're not American, they don't need anything, no special permission at all. I think the consequences of eliminating privacy are difficult to predict, but we must understand that this will have an enormous impact. The population's ability to have demonstrations or to organize is greatly reduced when people don't have privacy.
"This is a concept which is key to everything we'll talk about today. And it's called linkability: Take one piece of data and link it to another piece of data.
"So, for example, if you have your MetroCard and you have your debit card, you have those things and you can draw a line between them, right? So that's, like, not a scary thing, except your bank card is tied to everything else that you do during the day. So now they know where you're going, when you make purchases. So when they decide to target you, they can actually recreate your exact steps. With a MetroCard and with a credit card, alone, like literally where you go and what you buy, and potentially by linking that data with other people on similar travel plans, they can figure out who you talk to and who you met with.
"When you then take cell phone data, which logs your location, and you link up purchasing data, MetroCard data, and your debit card, you start to get what you could call 'metadata' in aggregate over a person's life. And metadata, in aggregate, is content. It tells a story about you which is made up of facts, but is not necessarily true. So for example, just because you were on the corner and all those data points point to it, it doesn't mean you committed the crime.
"So it's important to note that if someone has a perception of you having done a thing, it will now follow you for the rest of your life. So just keep in mind that what happens to you guys, for example, with fingerprints and retinal scans and photographs, that is what is going to happen to people in the future when they resist policy changes and when they try to protest in a totally constitutionally protected way."
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This Learning Guide written by James Frieden and published on July 15, 2016.
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