Friday 31 January 2014

WHISTLE  BLOWERS:  Should  some  of  them  be  sent to  prison?                       

What is a whistle blower? He or she is a person who exposes misconduct, alleged dishonest or illegal activity that is occurring in an organization, corporation or government. The alleged misconduct may be classified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health and safety violations and corruption. In the United States, the Continental Congress enacted the first whistleblower protection law in the United States on July 30, 1778 by a unanimous vote.

Under most US federal whistleblower statutes, in order to be considered a whistleblower, the federal employee must have reason to believe his or her employer has violated some law, rule or regulation; testify or commence a legal proceeding on the legally protected matter; or refuse to violate the law.             

In cases where whistleblowing on a specified topic is protected by statute, US courts have generally held that such whistleblowers are protected from retaliation. However, a closely divided US Supreme Court decision, Garcetti v. Ceballos (2006) held that the First Amendment free speech guarantees for government employees do not protect disclosures made within the scope of the employees' duties.

The majority of the court ruled that the First Amendment does not prevent employees from being disciplined for expressions they make pursuant to their professional duties. The Court wrote that its “precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.” Instead, public employees are not speaking as citizens when they are speaking to fulfill a responsibility of their job.   

Justice Stevens emphatically disagreed with the notion that there was a categorical difference between speech uttered by a citizen or by an employee in the course of his duties.                                                                    

Justice Stevens added that it would be senseless for the constitutional protection of same words to be contingent on whether they are uttered as part of one’s job duties; additionally, it would be “perverse” for the Court to essentially create an incentive for employees to bypass their employer-specified channels of resolution and voice their concerns directly to the public.

Justice Souter agreed with the majority of the court that a government employer has an active interest in effectuating its objectives, and can take corresponding action to ensure ‘competence, honesty, and judgment’ from its employees. However, he argued that the interests in addressing official wrongdoing and threats to health and safety may trump the employer’s interest, and that in such cases, public employees are eligible from the protections of the First Amendment.

Justice Souter also underlined that government employees may often be in best positions to know the problems that exist in their employer agencies.    

Ryszard Kukliński was a Polish colonel and Cold War spy for NATO who believed that he would be able to prevent the war in Europe between the Warsaw Pact and NATO countries by handing in 40,265 pages of secret military documents of East Germany and People's Republic of Poland to the CIA in West Germany. Facing imminent danger of discovery, Kukliński was spirited out of Poland by the CIA, along with his wife and two sons, shortly before the imposition of martial law in Poland in December 1981. On May 23, 1984 Kukliński was sentenced to death, in absentia, by a military court in Warsaw. After the fall of communism, the sentence was changed to 25 years. In 1995 a Polish court cancelled the sentence and said that Kuklinski was acting under special circumstances that warranted a higher need. Kukliński visited Poland again in April 1998. He died of a stroke in Tampa, Florida in in 2004. He is buried in the row of honour in the Powązki military cemetery in Warsaw, Poland, along with the remains of his son Waldemar.

When all charges were dropped against Kukliński in 1997, the left leaning Tribunal lamented that Colonel Ryszard Kukliński — a spy, deserter, and traitor — has been turned into a model of virtue and a national hero of the rightists." In a 1997 survey conducted by the CBOS, 27 percent of Poles considered Kukliński a hero and 24 percent a traitor (compared to 12 and 24 percent, respectively, in 1992.

During his term as Poland's first freely elected president, Solidarity leader Lech Wałęsa refused to pardon Kukliński and a poll taken in 1998 found that more Poles (34%) considered Kukliński a traitor than a hero (29%), with many undecided. The administration of US President Clinton nonetheless took the stance that it would oppose Polish membership in NATO unless Kukliński were exonerated.  He was exonerated.

Edward Snowden is an American citizen and he was an American computer specialist, a former Central Intelligence Agency (CIA) employee, and former National Security Agency (NSA) before he defected from the United States.  He is currently living in Moscow.  

On May 7, 2004, Snowden enlisted in the United States Army Reserve as a Special Forces recruit but did not complete any training. He said he wanted to fight in the Iraq War because he “felt like he had an obligation as a human being to help free people from oppression.” The US Army confirmed his enlistment as Special Forces recruit and said he was discharged on September 28, 2004. He did not complete any training or receive any awards. Snowden stated that this was the result of breaking both of his legs in a training accident.     

His next employment was as a National Security Agency (NSA) security guard for the Center for Advanced Study of Language at the University of Maryland, before joining the Central Intelligence Agency (CIA) to work on IT security. In May 2006 Snowden wrote in Ars Technica that he had no trouble getting work because he was a computer wizard. In 2007, the CIA stationed Snowden with diplomatic cover in Geneva, Switzerland, where he was responsible for maintaining computer network security.

Snowden left the CIA in 2009 and began work for Dell, a private contractor, inside an NSA facility on a US military base in Japan. Snowden remained on the Dell payroll until early 2013. Persons familiar with the 2013 government investigation into Snowden's history said that Snowden had downloaded sensitive NSA material in April 2012. NSA Director Keith Alexander has said that Snowden held a position at the NSA for the twelve months prior to his next job as a consultant, with top secret Sensitive Compartmented Information clearances. Snowden took a six-day Certified Ethical Hacker training course in 2010 in India. Snowden described his life as very comfortable considering that he was earning an annual salary of about US$122,000.

At the time of his departure from the United States in May 2013, he had been employed by consulting firm Booz Allen Hamilton for less than three months inside the NSA at the Kunia Regional SIGINT Operations Center in Hawaii, earning $122,000. The hiring screeners for Booz Allen had found some details of Snowden's education that did not check out precisely, but decided to hire him anyway. While intelligence officials have described his position there as a system administrator, Snowden has said he was an infrastructure analyst, which meant that his job was to look for new ways to break into Internet and telephone traffic around the world. I believe him because he knew how the NSA was doing it. Snowden even created a backup system for the NSA that was implemented, and often pointed out security bugs to the agency.

While in Hawaii, Snowden persuaded between 20 and 25 fellow workers to give him their logins and passwords by telling them they were needed for him to do his job as a computer systems administrator.  This allegation was later refuted by a source inside the NSA and by Snowden himself. Snowden's employment was terminated on June 10, 2013, for violations of the firm's code of ethics and firm policy. Most of those fellow employees who gave him the information he sought were terminated.

There is no doubt in my mind that this man was an extremely intelligent man but his intelligence got the better of him. It brought about his downfall.

Snowden first made contact with Glenn Greenwald, a journalist working at The Guardian, in late 2012. He contacted Greenwald anonymously and said he had "sensitive documents" that he would like to share. Greenwald found the measures that the source asked him to take to secure their communications, such as encrypting email, too annoying to employ. Snowden then contacted documentary filmmaker Laura Poitras in January 2013. According to Poitras, Snowden chose to contact her after seeing her New York Times documentary about NSA whistleblower William Binney. The Guardian reported that what originally attracted Snowden to both Greenwald and Poitras was a Salon article penned by Greenwald detailing how Poitras' controversial films had made her a target of the government. Greenwald began working with Snowden in either February or in April after Poitras asked Greenwald to meet her in New York City, at which point Snowden began providing documents to them both. Barton Gellman, writing for The Washington Post, says his first "direct contact" was on May 16, 2013. According to Gellman, Snowden approached Greenwald after the Post declined to guarantee publication of all 41 of the PRISM PowerPoint slides within 72 hours and publish online an encrypted code allowing Snowden the ability to later prove that he was the source.

According to Gellman, prior to their first meeting in person, Snowden wrote, “I understand that I will be made to suffer for my actions, and that the return of this information to the public marks my end.” That is a really big understatement.  Snowden also told Gellman that until the articles were published, the journalists working with him would also be at mortal risk from the United States Intelligence Community. I am not convinced that the CIA would kill them.

In May 2013, Snowden was permitted temporary leave from his position at the NSA in Hawaii, on the pretext of receiving treatment for his epilepsy. In mid-May Snowden gave an electronic interview to Poitras and Jacob Appelbaum which was published weeks later by Der Spiegel. Now there would be no turning back. His bridge was burned beyond repair.

After disclosing the copied documents, Snowden promised that nothing would stop subsequent disclosures. In June 2013, he said, “All I can say right now is the US government is not going to be able to cover this up by jailing or murdering me. Truth is coming, and it cannot be stopped.”

The ongoing publication of leaked NSA documents has revealed previously unknown details of a global surveillance apparatus run by the United States' NSA in close cooperation with its Five Eyes partners: Australia,  Great Britain,  Canada, and New Zealand along with cooperation from the security agencies of most other Western countries.

The Guardian's editor-in-chief Alan Rusbridger said in November 2013 that only one percent of the documents had been published. Officials warned that “the worst is yet to come.” That was a sentiment echoed by Glenn Greenwald and by Snowden. The extent of the leaks may never be known, according to US investigators, due in part to outdated software at the Hawaiian NSA facility. NSA Director Keith Alexander initially estimated that Snowden had copied anywhere from 50,000 to 200,000 NSA documents. Later estimates ran as high as 1.7 million documents. 

There was a very good reason why the disclosure of those documents was a real embarrassment to the United States. The NSA was snooping into millions of phone, telex and email messages of not only Americans but even world leaders. From those documents it was learned that a secret court order required Verizon to hand the NSA millions of Americans' phone records daily and the surveillance of French citizens' phone and internet records, and those of high-profile individuals from the world of business or politics from around the world. By October 2013, Snowden's disclosures had created tensions between the US and some of its close allies after the disclosures revealed that the US had spied on Brazil, France, Mexico, Britain, China, Germany, and Spain, as well as 35 world leaders.

There cannot be much more embarrassing that being seen with your pants down in public and Snowden was the person who pulled the NSA (and the government’s) pants down in public.

What was his real motive?  It certainly wasn’t for money. In fact, he sacrificed a good paying job to do what he had done. Snowden explained his actions by publicly saying: “I don't want to live in a society that does these sort of things (surveillance on its citizens).   I do not want to live in a world where everything I do and say is recorded. My sole motive is to inform the public as to that which is done in their name and that which is done against them.”

In one sense, it is hard to fault that kind of motive. The NSA was in fact doing things it shouldn’t have been doing. If all he had done was inform the public by documentary evidence that the NSA was illegally snooping on the communications of the US citizens, then he was in my opinion, a legitimate whistle blower.

But he went further. He disclosed secret information with respect to the interception of Taliban mobile phone calls and radio transmissions in Pakistan. The United States is at war with the Taliban. If he had done this kind of thing during the Second World War, he would have been executed.  He also disclosed loyalties of CIA recruits which could result in their deaths. These have absolutely nothing to do with domestic surveillance and for this reason, that information should never have been disclosed at all to the media. Fortunately, the media hasn’t made public any of the information relating to the Taliban but his actions has tipped off the Taliban that their messages are being intercepted  which could result in their future messages being in code. 

The Americans want this man returned to the United States for trial. That is unlikely going to happen. I doubt that Russia will extradite him to the US. He can’t travel out of Russia without risking being arrested in another country. Even if he were to fly to Ecuador or Venezuela who has promised him that he won’t be extradited to the U.S., the Americans will probably force the plane to land in the U.S. Don’t think this can’t happen. Many years ago when an American was thrown overboard from a liner by terrorists and they tried to fly to Tunisia from Egypt, American war planes forced the plane to land in an American base in Italy. 

If he is extradited to the United States, what should be he convicted of? Treason? Not likely. The United States in not in a state of war. On June 14, 2013, United States federal prosecutors filed a criminal complaint against Snowden, charging him with theft of government property, and alleging he had violated the United States 1917 Espionage Act through unauthorized communication of national defense information and willful communication of classified communications intelligence information to an unauthorized person. Stealing secret documents that can be detrimental to the interests of the United States is punishable by natural life in prison and that is probably what he would get, especially if as a result if his actions, someone is killed by the Taliban.

If he is never returned to the United States, I doubt that he will ever live the great life he had in Hawaii while receiving an annual salary of $122,000. From an economical point of view, it was a really stupid thing he did. And when his legacy slowly fades away and he is living in a cheap three-room apartment on Russian handouts in cold winter days, he may very well rue the day when he decided to betray his country.

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