(3) Introduction - The Paradox

"For starters, just thinking oneself a whistleblower isn’t enough. A whistleblower cannot be defined as “an advocate for the change I’d like to see.” That definition confuses whistleblowing with political activism, and it invites partisan interpretations.(...) The Cambridge Dictionary definition is narrower: a whistleblower is “a person who tells someone in authority about something they believe to be illegal that is happening, especially in a government department or a company.”
The Whistleblower Protection Act of 1989, which was strengthened in 2012 through the Whistleblower Protection Enhancement Act, comports with the Cambridge definition.
Federal employees who disclose “illegal or improper government activities” are protected from supervisors’ or coworkers’ retaliation. According to the U.S. Merit Systems Protection Board (MSPB), whistleblowing is “disclosing information that you reasonably believe is evidence of a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”
The MSPB’s “reasonable belief” standard depends on an evidence-based, nonideological approach to determining the truth. For our purposes, a whistleblower is an insider (meaning an employee, customer, auditor, or other stakeholder) who has evidence of illegal or improper conduct and exposes it, either to the authorities or to the press. In government, improper conduct is illegality or a violation of constitutional norms. In the corporate world, it is illegality or the violation of company norms. Put another way, whistleblowers draw attention to self-interested actions that undermine public trust. They often reveal misconduct involving the use of public power for private gain, otherwise known as corruption.
Whistleblowers thus betray their organization or its leaders in service of the truth. Their motives for doing so are irrelevant. Most are heroic. Some are saving their own skin."(6-7)

"Whistleblowers reveal truths that the powerful do not want to be made public, whereas dissenters simply disagree."(8)

"While whistleblowing is now a global concept, the United States has a unique and long tradition of respecting whistleblowers, especially in regard to whistleblower protection legislation, that is the envy of other countries."(11)

[Eh ... pardon? Chauvinisme? Vraag dit eens aan Snowden ... Blijkbaar geldt die bescherming niet meer als je de machtswellust van de inlichtingendiensten en de regering aan de kaak stelt?]

"Since they challenge business as usual, whistleblowers are by definition troublemakers who remove blinders that many people would prefer to leave in place. For that reason, they can be difficult people. They do not turn away from wrongdoing but choose to confront it. They can be annoying to those averse to conflict, but they are also people of conscience who are willing to be seen as disloyal to the institutions that employ them in order to remain true to their own values. Acts of conscience are always motivated by loyalty to a conviction, but they usually demand defiance of other loyalties."(11)

"Whistleblowing serves the interests of truth, and all whistleblowers commit truth. Because they highlight the gap between American ideals and lived reality, they unveil behavior that the rich and powerful would like to keep secret."(14)

"Whistleblower protection statutes have been on the books since the Revolutionary War, but if your work has any connection to national security, the shield they provide is unreliable. The Civil Service Reform Act of 1978 established new statutory protections for whistleblowers and created the Office of Special Counsel for investigating claims, but its protections explicitly excluded national security employees. This exclusion continued in the 1989 Whistleblower Protection Act. In 2012 there was another attempt to include national security employees through the Whistleblower Protection Enhancement Act, but that effort was also defeated. The result is that in the eyes of the law, whistleblowing in the national security arena, although it is at least as vital there as in other forms of government service, remains a contradiction in terms." [mijn nadruk] (17)

[Precies.]

"These trends show that more people are taking the great risks that whistleblowing entails, but doing so in a system that does not protect them. The most likely outcome for whistleblowers is self-destruction."(21)

[Het gaat dus ook in het algemeen de verkeerde kant uit.]

"Only a small percentage of federal whistleblowers succeed in having their assertions believed—5 to 20 percent ..." [mijn nadruk] (22)

"The paradox of whistleblowing in America—embracing the ideal of whistleblowing while failing to protect those who do it—was on full display in the debate over Edward Snowden. On one hand, the fiercest arguments were over whether Snowden deserved to be called a whistleblower. On the other hand, because Americans after 9/11 have grown accustomed to thinking of perfect security as a precondition of liberty, they are divided over the realms in which whistleblowing should be supported. If it undermines security or prosperity, many Americans have little use for it." [mijn nadruk] (24)

"While whistleblowers often bring about changes that serve their fellow citizens, their personal sacrifice is immense. Legitimate whistleblowers are risk takers for the truth, and what they risk, above all, is their own well-being. They pay dearly after they jump ship to expose corruption or abuse. When they regret their decision, it is generally because they vastly underestimated the potential damage, especially for their families. When whistleblowing succeeds, there is always a loss of innocence, not only among the public but for the whistleblowers themselves."(25)

(26) Part 1 - From the Revolution to 9/11

Vanaf hier dus een geschiedenis van klokkenluiden in de VS.

(26) Chapter one - Truths

"The American revolutionaries saw containing corruption as the very foundation of representative democracy. The common good could not be secured when citizens elevated private interest over public service."(37)

"This principle, a value ostensibly shared by all of the Revolution’s leading figures, saw the common good as best upheld through disinterested service."(39)

"Tyranny is corrupt by definition, both in a limited monarchy and in a professed republic, since it always serves the interests of the powerful rather than the people."(43)

(63) Chapter two - Corruption

Over al die bedrijven ('contractors') die tijdens de Civil War profiteerden van verzoeken om een leger uit te rusten (met vervoer, voedsel, kleding, wapens etc.) door rotzooi te leveren. Wat uiteraard ten koste ging van de levens van veel soldaten en zeelui.

"Unscrupulous defense contractors sold the federal government ill horses and mules, defective ammunition, and inedible rations."(67)

"Rising to Wilson’s challenge, Congress passed the False Claims Act, or Lincoln Law, on March 2, 1863. Under the Lincoln Law, whistleblowers could bring “qui tam” actions on behalf of the government against those accused of submitting false claims to the government. Qui tam comes from the Latin phrase Qui tam pro domino rege quam prosi ipso in hac parte sequitir, or “One who sues on behalf of the king as well as for himself.” If a court agreed with the whistleblower, he or she could receive half of any damages won by the government.
The legislation seems to have been an effective deterrent."(69)

"Building the infrastructure of the United States presented vast opportunities for self-enrichment. William Magear “Boss” Tweed played the game of public servant on the make better than most. Corrupt practices went hand in hand with infrastructure development that advanced public interests."(72)

"Increasing economic inequality, dysfunctional government, and a growing public sense that American democracy has been hijacked by special interests were all features of American life in the late nineteenth century. As the American state grew, so did the possibilities for corruption."(97)

"In the nineteenth century, whistleblowers made Americans aware of the downside of their developing economy. Large public works and government contracts enabled the United States to harness the entrepreneurial spirit of the private sector to grow the economy, develop infrastructure, and create jobs. They also presented unprecedented opportunities for graft and corruption. Even when whistleblower motives were suspect, the public applauded the exposure of elite greed."(97)

(98) Chapter three - Treason

"Since war served the interests of capitalists and capitalism, Lenin argued, working-class men and women should refuse to fight for their country and instead convert the war among nations into a class war against bourgeois governments—meaning European or American liberal democracies."(101)

Communistische partijen in andere landen moesten die lijn van de COMINTERN volgen. M.a.w.: ze zouden daar het deelnemen aan een oorlog ondermijnen. De VS maakte in 1917 - toen ze binnenstapten in WO I - dus wetten om zoiets te voorkomen.

[Dat maakte het wel heel gemakkelijk om iets als 'verraad' te bestempelen. Natuurlijk waren er Russische cellen en spionnen in de VS zoals de VS ze ongetwijfeld ook had in de USSR. Maar je kon dat anti-communisme ook overdrijven en dat gebeurde dan ook door mensen als McCarthy en Hoover.]

"Like Hoover, the House Un-American Activities Committee found the loyalties of American communists at odds with American citizenship, in that the communists had pledged allegiance to another country."(115)

"On balance, Soviet subversive activities on American soil were a real problem, but the American response was incommensurate to the threat."(121)

[Je bent voor of tegen ons ... Niet een erg vruchtbare benadering.]

"The case of RAND Corporation military analyst Daniel Ellsberg illustrates the high price of secrecy in the service of security. When government is given a blank check to do whatever is necessary to protect its citizens, that trust is all too easily abused. Secrecy is a vital resource in securing freedom, but when it is deployed cynically as a political weapon, it can wind up undermining both freedom and the right to privacy." [mijn nadruk] (121)

[Precies.]

"The Pentagon Papers revealed that the Johnson administration had known early on, despite public declarations to the contrary, that the Vietnam War was unlikely to be won. They also showed extensive covert operations unknown to the public.
The gap between public statements and reality was especially apparent in Ellsberg’s interactions with secretary of defense McNamara."(124)

"Did Daniel Ellsberg compromise U.S. security in exposing how the government had misrepresented the situation in Vietnam? He did not urge Americans to dodge the draft. He did not conspire to overthrow the government. He did not pass secrets directly to the enemy. His sin was the release of classified information that exposed the gap between political rhetoric and reality.
Since the Pentagon Papers were historical rather than studies of operations in process, it is hard to argue that their public revelation did real damage to national security, especially since Ellsberg intentionally held back documents so as not to compromise ongoing peace negotiations."(134)

"Ellsberg’s and Felt’s stories demonstrate the obstacles to whistleblowing on government wrongdoing when the government can invoke national security and executive prerogative. Ellsberg found no other insiders who were concerned enough about government deceit to give him any help, and so was forced to engage the American people directly via the press. Felt could not complain to his superiors because the entire chain of command, right up to the president, was involved in an extensive cover-up; he had to turn to the media as well."(145)

"Just as nineteenth-century whistleblowers opened American eyes to the way the country’s economic development intersected with corruption, twentieth-century dissenters exposed the potential tensions between national security and free speech."(148)

"The implicit equation of leftist dissent with treason thus came with collateral damage. The superpower struggle made legitimate criticism of capitalism’s excesses sound like communist propaganda. During the Cold War, those who voiced skepticism about the unfettered free market’s ability to advance the common good became the enemies of the United States. The Cold War era thus refashioned how America thought about whistleblowers, and those sentiments lingered after its end. Those promoting free markets or the national security of the United States were presumed beyond reproach. Whistleblowing on national security processes became taboo. Dissent became treason."(149)

(149) Chapter four - Business

De opkomst van het vrije markt denken incl. privatisering onder Reagan en Thatcher.

"The staggering amount of money one may earn as a private-sector employee doing the government’s business makes it difficult to resist cashing in after years of poorly paid public service."(151)

"The revolving door between government and business, which grew exponentially after the Reagan revolution, added to the complications for would-be whistleblowers. For a whistleblower to call attention to self-interested acts of business-government collusion often meant forfeiting a livelihood in both the private and the public sectors. Even when their complaints were validated, whistleblowers risked becoming targets of retaliation, paying a price for stirring up trouble. The free-market fundamentalism that fueled the privatization impulse made pointing out the private sector’s excesses a career-ending proposition, especially once the war on terror was in full swing. Under these circumstances, the importance of whistleblower protection grew.
But who qualifies for protection? Since contractors performing government work are not government employees, their eligibility under whistleblower protection laws was often ambiguous. This regulatory gray zone made the price of speaking out even higher."(152)

"Despite ambiguity about its efficacy, “when in doubt, outsource” became a bipartisan mantra in the twenty-first century. Iraq and Afghanistan were America’s first contractors’ wars: at times in both conflicts, they outnumbered men and women in uniform."(169)

"This system is not the creation of any one party; both Democrats and Republicans shared the belief that market solutions necessarily deliver better outcomes than government ones."(170)

"After 9/11, Top Secret America expanded without real constraints on its reach and power. It was big, privatized, and largely off-limits to whistleblowers, since all of its activities were classified. When the security state overstepped the bounds of the permissible, the odds were stacked against anyone being able to do something about it."(172)

Meer over het Deepwater schandaal (waarbij de bedrijven / opdrachtgevers zichzelf alle opdrachten toespeelden en ook nog eens zelf de controle hadden over het hele proces).

"The circular arrangement meant that Lockheed and Northrop were responsible for planning, constructing, and delivering the new boats and helicopters and also for evaluating their own performance."(172)

(192) Part 2 - The Internet Age

(192) Chapter five - Secrecy

"The Obama White House defied its supporters’ expectations. Both the Washington Post and the New York Times repeatedly criticized the administration for its pursuit of leakers."(193)

"The principles of open government and public accountability that many whistleblowers seek to promote were under fire in the Obama years. Senator and presidential candidate Obama had been a committed advocate of greater transparency, but President Obama did not practice it despite impressive rhetoric to the contrary, beginning with a presidential memorandum mandating transparency and open government on his first day in office."(194)

"The gap between the Obama administration’s words and deeds presents a puzzle. The same administration that championed open government and transparency had a zero-tolerance policy for leakers of national security information. Both the Obama White House and Congress saw “national security whistleblowing” as a contradiction in terms. Any security breach required punishment, regardless of what was revealed. The administration prosecuted purported national security whistleblowers, whose activities were by definition suspect, and the American people seemed to agree."(196)

"The expanding security state continued to receive increased appropriations, and the Obama administration prosecuted more cases under the Espionage Act than all previous administrations combined.
The consequences of placing an entire realm of government and private-sector activity effectively beyond public scrutiny were slowly coming to light. For starters, those who criticized what they saw as excesses in the pursuit of security risked being seen as people who didn’t want America safe in the first place. As a result, whistleblowers on national security processes were by definition suspicious."(209)

"National security letters are the modern-day equivalent of colonial America’s writs of assistance. A recipient of a national security letter—essentially an FBI-issued subpoena authorizing an investigation “to protect against international terrorism or clandestine intelligence activities”—must turn over all information the government requests. Most such letters also include a nondisclosure requirement, which means that the recipient is bound by a gag rule not to talk to anyone about having received it."(209)

"The hard-line stance on leaking that fueled the Bush and Obama administrations’ war on leakers did not extend to high-ranking government officials."(215)

"Fortunes and empires are built by exploiting information disparities. In addition to its role in upholding national security, secrecy remains a vital component of any functioning capitalist system. Since profit can be derived from knowing just a bit more than your competitors, many a profit margin has its origins in some modicum of secrecy. The idea of proprietary information exists to protect against piracy. Yet just as secrecy can be exploited as a power resource in the national security realm, so too can it be manipulated by financial elites in ways that undermine democracy. Financial fraud, like profit margins, flourishes in the shadows.
It is certainly true that secrecy is sometimes necessary to defend the United States or to protect a market advantage. But there are enormous incentives, as well, for the powerful to insist on excessive secrecy. Those in positions of power will always have a vested short-term interest in asserting its necessity." [mijn nadruk] (225)

(226) Chapter six - Surveillance

"During the Cold War, transparency and national security were considered mutually exclusive. Since the NSA’s definition of signals intelligence included anything America’s adversaries sought to conceal, it followed that America’s own secrets must be similarly valuable to the enemy. Sharing American information freely was thus equivalent to handing over to adversaries what the NSA sought to secure. In a zero-sum global order, those who were not with the United States in the struggle to contain Soviet expansionism were against the United States, and leakers were by definition aiding and abetting America’s principal enemy. This zero-sum worldview led the NSA to abuse its powers in the 1960s and early 1970s."(226-227)

"The NSA decided to scuttle ThinThread before 9/11, in part because of privacy concerns. Michael Hayden, who became the NSA director in March 1999, flatly opposed it, ostensibly because NSA legal staff was wary of it. After 9/11, ironically, that same legal staff reversed its position and endorsed programs that paid far less attention to the very privacy concerns that had formerly been so weighty. With the in-house effort shelved, the NSA asked private contractors to build a rival system, Trailblazer, at far greater cost.
Trailblazer was a unified effort to modernize surveillance in a digital, cellular, and fiber-optic world. It entirely lacked the privacy protections that were built into ThinThread. Unlike ThinThread, Trailblazer was the brainchild of contractors rather than NSA employees. Deputy NSA director William Black, who had worked at the NSA for decades, then moved to the defense contracting firm SAIC and then back to the NSA to assume the number two position, negotiated the Trailblazer contract. He funneled hundreds of millions of dollars in contracts to SAIC, and the revolving door between the agency and private companies spun madly as NSA employees cashed in by taking jobs as contractors to work on Trailblazer.
The project was an unmitigated disaster: hundreds of millions of dollars over budget and years behind schedule without tangible results. It was finally canceled in 2006 after billions of taxpayer dollars had been poured into it."(233-234)

"President Bush’s October 2001 secret executive order on NSA protocols gave Cheney what he wanted. The NSA program STELLARWIND authorized warrantless collection of metadata on U.S. phone calls, and that authority was extended to the Internet in 2002.(...) Bush’s secret executive order essentially flipped standard NSA surveillance from targeted searches (search then seize) to dragnet searches (seize then search). The NSA may have been slow to adapt to the era of Internet communications, but Bush’s secret order propelled that adaptation dramatically forward with a promise of a wide berth for experimentation. And experiment the NSA did. What began as emergency measures were soon adopted as the new normal."(237-238)

"Wiebe, Drake, and Binney saw the NSA’s transformation as unconstitutional and felt a duty to expose it, however possible. From the NSA’s perspective, they were a threat to national security."(242)

"Because those accused of wrongdoing are often bound by confidentiality commitments, writing about whistleblowers is intrinsically difficult."(248)

(263) Chapter seven - Snowden

"The former CIA employee and NSA contractor Edward Snowden stole millions of classified government documents, and in May 2013 fled Hawaii for Hong Kong, where he carefully released a fraction of them to the journalists he had selectively chosen."(264)

[Gestolen, zegt ze. Het is wel een woord met een gevoelswaarde. Ik zou dat niet zo gebruiken.]

"In siphoning off unprecedented amounts of classified information and selectively sharing it with the world, Snowden provoked a controversy that inspired two diametrically opposed interpretations. To some, his transgressions could never be justified. For others, the NSA was undermining democracy by bending the Constitution in ways of which the American people were wholly unaware. Was Snowden a leaker betraying his country? Or a whistleblower upholding democratic values? Could he be both?"(266)

"Conducting research for this book, I was routinely struck by the polarization of views created by partisan definitions of whistleblowing. Our nonpartisan definition provides a better lens for viewing the critical issues: a whistleblower is an insider who has evidence of illegal or improper conduct and exposes it, either to the authorities or to the press. In government, misconduct is illegality or a violation of constitutional norms."(275)

"Whether the laws permitting those NSA actions were constitutional is another matter entirely. Moreover, that something can be done legally does not necessarily mean that it should be done. Although the New York Times and Guardian may have been too quick to reach their verdict [dat Snowden een klokkenluider was - GdG], the passage of time proved them right."(277)

"In short, while the NSA was doing things that Edward Snowden and some Americans disapproved of, our laws at the time permitted them to do so. All that changed in May and June 2015, and this change placed Snowden’s actions and those of the purported NSA whistleblowers who preceded him in a new light."(283)

[Dat het legaal is en dus aan de wet voldoet, wat zegt dat? Die wetten voldeden - zo bleek later - niet aan de constitutie. Maar zelfs al voldeden ze wel aan de constitutie, er is ook nog zo iets als een moraal. Een dictatuur heeft zijn constitutie en wetten vast ook goed voor elkaar, maar dat maakt het vanuit verdedigbare waarden en normen niet minder een dictatuur. Klokkenluiden vanuit een moreel besef is lijkt mij heel goed mogelijk.]

"From the government’s perspective, the cloud is a gold mine for preempting terrorism. Because government and business have a shared interest in social and economic stability, the chances are very good that companies will deliver what government requests, unless they believe their cooperation will hurt profitability."(299)

"Snowden also shed light on the evolving relationship between the government and Silicon Valley. The nine technology companies that shared materials under the PRISM program usually complied with government requests for information. Did they have to do so?" [mijn nadruk] (302)

"Thanks to Snowden, Americans now know that the NSA’s standard operating procedure was radically transformed after 9/11, and the questions his revelations raised led to further breakthroughs in understanding. We know that in our hyper-connected digital world, NSA activities can unwittingly violate other nations’ privacy laws. We know that the legal interpretation of section 215 of the Patriot Act is classified, so that the laws that enable surveillance are effectively secret. We know that the Privacy and Civil Liberties Board, a group authorized by Congress in 2007 to ensure privacy safeguards, did not get a full-time chairman until May 2013, and as of June 2013 had met with President Obama exactly once. We know that nine of ten Internet users whose communications were vacuumed up by the NSA were not targeted foreigners. We know America’s ownership of the Internet’s architecture, which gives the NSA unprecedented surveillance advantages, also generates enormous resentment. In short, Snowden’s leaks may have been a crime that the administration had to prosecute, but he started a debate the country desperately needed to have. But he also ended an era of cybersecurity dominance for the NSA."(305)

"Jesselyn Radack laughed at the idea that Snowden could have stayed home and “faced the music.” She called it a “fantasy” that Snowden could have received a fair trial. The 1917 Espionage Act, which was designed to prosecute spies, is now being used to prosecute those who leak classified information. Where classified information is involved, court proceedings must take place in secret, placing the defendant at a profound disadvantage and making it impossible for anyone to independently assess whether the trial was fair. “When there is no public attention,” GAP’s executive president Louis Clark said, “everyone gets rolled by the national security state.”" [mijn nadruk] (312)

(314) Chapter eight - Malevolence

Over WikiLeaks en Julian Assange. Over Bradley Manning

"The objective was to exploit the power of the Internet as a weapon of the weak and make anonymous whistleblowing easier to do."(317)

"Their view that there should not be secret information of any sort is beyond naive."(326)

[Zei iemand. Maar precies daar zit de fundamentele discussie. Het etiket 'naïef' maakt dat die discussie vermeden wordt.]

"Nonetheless, both Assange and Manning clearly saw themselves as whistleblowers in the public interest, revealing wrongdoing of epic proportions. Manning repeatedly described his activities as whistleblowing. Assange even published a guide for whistleblowers.
But intensity of belief does not validate that belief. While all those who reveal national security information are leakers by definition, not all national security leakers are whistleblowers. The harm done in making sensitive documents public must be weighed against the crimes revealed. When the damage is easy to identify but the crimes are not, the leaking cannot constitute whistleblowing, whatever the purported whistleblowers claim. Whistleblowing cannot be in the eyes of the beholder."(328)

"The crackdown on WikiLeaks demonstrated the power of business and government elites to neutralize and marginalize an entity they find unacceptable. The powerful stood firmly behind giving national security institutions the benefit of the doubt whenever controversy arose. The WikiLeaks controversy also illustrated the limits of self-defined whistleblowing."(333)

(346) Conclusion - Why America Needs Whistleblowers

"If the experience of Donald Trump’s presidency inspired anything, it is a conviction that whistleblowers matter. As I write this, the Trump team is suspected of multiple high crimes and misdemeanors."(346)

"When moving from government service to a position as a lobbyist or contractor has become a socially acceptable stepping-stone to wealth, the question of who is overseeing and serving whom can have no clear answer."(354)

"Today, corporate excess is permitted as an inevitable outcome of the operation of free markets. Shamelessly self-interested behavior has become the new normal."(355)

"The implicit assumption is that elites can make the tough calls, but how can the public possibly know whether they are making the right decisions if the information is classified? Americans are asked to trust their elites to act in the interests of the nation rather than themselves, yet there are few mechanisms in place to ensure that elites remain worthy of that trust."(361)

"The story of whistleblowing in America illuminates three challenges that force Americans to consider who we are and what we are committed to defend. First, there are limits to the amount of opacity that healthy self-government can bear. Defending democracy from its enemies requires secrecy, yet democracy demands that the people know what their government is doing. Excessive secrecy can enable cynical elite manipulation of the American public square through the strategic deployment of information."(377)

"The second challenge follows from the realization that the pursuits of security and of prosperity need not always be self-reinforcing. Today the interests of some American technology companies are at direct odds with national security priorities. From Silicon Valley’s perspective, Washington’s quest for perfect security challenges global businesses’ ability to win customers outside the United States."(378)

"The third challenge illuminated by the paradox of contemporary American whistleblowing is the difficulty of fostering and encouraging public-interested elite behavior when everything has been privatized."(379)

"Whistleblowers remind us that profit maximization and the public interest are often in conflict."(380)