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Ed Snowden’s Act Two, Part Two
The slippery morality of whistleblowing
It was inevitable that Edward Snowden would be the toast of the town after disgorging his sensational secrets to The Guardian’s Glenn Greenwald, documentary filmmaker Laura Poitras and The Washington Post’s Barton Gellman.
Daniel Ellsberg, that dean of all whistleblowers, was similarly feted and fetishized by the media, but he possesses such palpable integrity, and thus such a simple through-line, that there could never be any confusion about who he was—and is—and why he chose to go up against the government.
Short take: After distinguishing himself as a military analyst for the RAND corporation, a think-tank linked to the Pentagon, he trekked off to Vietnam in 1965 on the State Department’s dime to take a look for himself. Two years later he returned to RAND, and worked on a study, ordered up by the Defense Secretary, on decision-making related to the war. It would come to be known as the Pentagon Papers and demonstrated among other things that the Johnson administration had lied its way into the war and had little hope of winning it.
By 1969, Richard Nixon’s first year in office, Ellsberg had soured on the whole torrid crusade and, while attending an anti-war conference, was shaken to the core by one of the speakers, a resister who vowed to get himself arrested and imprisoned for his beliefs.
“I heard his words in the midst of actually feeling proud of my country,” Ellsberg later recalled. “He was going to jail as a very deliberate choice because he thought it was the right thing to do. There was no question in my mind that my country was involved in an unjust war…...Thousands of young men were dying each year. I left the auditorium and found a deserted men’s room and I just sat on the floor and cried for an hour, just sobbing.”
Soon afterwards he and a RAND colleague, Anthony Russo, began secretly Xeroxing copies of the Pentagon Papers. Later, Ellsberg tried to get some lawmakers interested in the study, circulated copies to private contacts and shared choice passages with a New York Times reporter, Neil Sheehan. Growing worried that Ellsberg might inadvertently trigger an FBI raid and lose control of the documents, Sheehan copied a full set and lateralled it to the Times without telling Ellsberg.
The Times began publishing excerpts but got hit with a temporary restraining order from a federal judge acting on a government petition. The Washington Post stepped in and began publishing its own copy, which had been provided by Ellsberg. There were conflicting rulings from lower courts. The Nixon Administration then sought a permanent injunction against all publication, but on June 30, 1971, the Supreme Court ruled there wasn’t sufficient justification under traditional interpretations of the 1st Amendment and let the presses roll.
The true story of how the Papers first got to the Times is not as tidy as the original folklore version in which Ellsberg heroically dumps a copy on the newspaper’s doorstep, but his bravery is plain enough, and his motivation is about as searingly personal as a heart attack.
In a happy footnote to his misadventures, the espionage and theft charges which the Nixon prosecutors had tried to hang on him and Russo, independently of the publication cases, were dismissed at trial. The presiding federal judge, William Byrne, made the toss on May 11, 1973, after discovering that the same thugs who had committed the Watergate break-in had burgled the office of Ellsberg’s psychiatrist in search of dirt. Byrne declared dryly that these “bizarre events have incurably infected the prosecution of this case."
Whistleblowing as atonement
Now buckle up for a little digression about me. It has to happen if I am to help you understand why I feel compelled to score Snowden’s ethical test results. It may even persuade you I am full of it. What could be fairer?
I arrived in Vietnam in mid-1969 even as Ellsberg was beginning to crank up his copying machine. For me the moral question was not whether this was “just war,” which seemed to be yesterday’s news, but how to get our troops out of it without exposing them to a bullet in the back and without betraying our Vietnamese allies. A true-blue idealist, I believed the Biblical admonition chiseled into the wall of the CIA foyer, “And ye shall know the truth, and the truth shall make you free.”
As an intelligence analyst charged with assessing enemy intentions, I had access to the best version of the truth available in Vietnam, the most highly classified secrets, and eventually direct personal lines to the CIA’s best sources. But I soon realized to my horror that the truth was unwelcome to my superiors since it threatened their illusions about what was possible.
The best reporting told us that many branches of the South Vietnamese government and military were fatally corrupt and riddled with enemy spies and that our allies could not possibly win the war unless they cleaned up their act. But policy makers needed to make the South Vietnamese seem pristine-pure and worthy of continued massive U.S. aid. So, they suppressed the negative reporting, however factual, for fear it might leak to the press, and thus blinded themselves to South Vietnam’s growing liabilities.
I worried about the fog machine and vowed to push back. But anyone who has worked in a tight-assed bureaucracy knows that at times you have to play along to get along if you’re ever to amass enough political chits to make any real difference next time round. I figured an occasional briefing to the press about half-facts was the price I had to pay. And I reasoned that I could always leak the good stuff to friendly reporters behind the scenes to rectify misimpressions.
Which I did, with increasing frequency.
As it turned out, there was a pay-off to my play-along moments. With due deference and good-soldier discretion, I gained my bosses’ confidence and with it an open ticket to talk directly, when needed, to our very best source, a brave Vietnamese spy working inside the Communist command.
In the last month of the war, that source revealed—in a second instance, to me personally—how and when the enemy meant to attack Saigon. He emphasized in the sharpest terms that all talk of a negotiated ending was a ruse to throw us off balance. There was only one inference to be drawn: hustle all surplus Americans out of Vietnam now if not sooner and begin preparing for an emergency hard pull.
But the U.S. ambassador and CIA station chief remained in thrall of wishful thinking and false prophecies from diplomatic contacts, and delayed evacuation planning on the assumption that negotiations would save us and that any lurch toward the exits would destroy the “controlled conditions” necessary for a diplomatic solution.
Preparations for a pull-out continued to lag and we were so ill-prepared for the enemy’s final assault on Saigon that the last-minute emergency airlift degenerated quickly into a case of every man, woman and child for themselves. In the chaos, hundreds of thousands of our Vietnamese assets and friends were abandoned to the enemy.
An old Vietnamese girlfriend of mine, who showed up at the last minute with a child in tow that she claimed was mine, reportedly killed herself and the child after I missed her call just hours before the end.
The star Vietnamese agent, who had given us the goods, fell into enemy hands and hung himself by his belt rather than be tortured into giving up our secrets.
His warnings, though downplayed by the ambassador and the CIA station chief, were not wholly in vain. They jolted the U.S. Pacific command and certain White House officials into laying in extra scaffolding for an emergency helicopter lift on the chance one might become necessary. All of us who escaped by chopper on the final day owe our lives to this martyred master spy, whose name was Vo Van Ba.
Back at CIA headquarters I lobbied desperately for a postmortem to identify our mistakes and to sort out ways to help our abandoned friends, like running rat lines back into Vietnam to rescue the most imperiled. Time was of the essence because with every passing moment untold numbers of them were being tracked down, imprisoned, or murdered.
But no one stirred. Throughout official Washington the guilty were playing a coverup game to avoid answering for their mistakes. The President urged us all to put the past behind us.
In despair I quit the agency and wrote my own post-mortem as a book.
My logic for doing so was both complex and very simple. Americans who had lost sons and daughters to this war had a right to know how it had ended. Monochrome bureaucrats needed to understand how hubris, bungled intelligence and their unwillingness to acknowledge their own folly had led to a worst-case ending. They needed to know this so that it would never happen again.
And though I didn’t see myself as an avenging angel for Vietnamese “left-behinds,” I wanted to believe that a little truth telling might trigger diplomatic or humanitarian initiatives to ease their suffering.
Following the Ellsberg model, I could have slipped damning, inside documents to reporters and let them try to make sense of them. But that seemed a cop out. Having willingly and actively collaborated in the debacle that was Vietnam—and for six years no less—I needed to lay all the debris out on a blank page and arrange it into a narrative that would allow me to confess and atone. Otherwise, guilt would tip me over into the looney bin. I was sure of that.
There would be no help from CIA headquarters— I was sure of that, too. As far as Vietnam was concerned, most of my old buddies had one default reflex and that was to disown and deny. So, I decided it would be the kiss of death to submit my manuscript to CIA censors. And I figured that if I kept secrets out of it— few had survived the chaotic evacuation anyway—I would be square with the law.
My memoir, Decent Interval, burst onto the bookstands in November 1977. It generated immense publicity about what we had left undone in Vietnam and those who had paid the price. I had little hope it would make any lasting difference.
The slippery morality of whistleblowing—by the brethren themselves
Shortly after publication of my book, government prosecutors came at me with a vengeance, accusing me of cynically thumbing my nose at CIA censors and thus making a mockery of official secrecy, even if I hadn’t breached it. Two years later, after much litigation and a hearings petition to the Supreme Court, I learned that a six-man majority on that tribunal had not only chosen to take up my case but had secretly ruled for the government on all counts.
The six had reached their decision summarily, without allowing my lawyers or the government’s to offer any written or oral briefs.
When the decision was finally unveiled, in early 1980, Edward Snowden was three years short of drawing his first breath. But as he acknowledged in his “Snepp” tweet, the ruling is of interest to him because everybody who has been prosecuted under it is a potential ally in his quest to expose past CIA sins.
But the ruling is not merely an abstract for him since he, too, has felt its bite. In September, 2019 the Trump administration “Snepped” him by suing him for failing to seek CIA clearance for his memoir, Permanent Record.
A year later, a federal court sided with prosecutors and saddled Snowden with a lifetime injunction, barring him from publishing anything more about U.S. intelligence without clearance. He was also ordered to surrender to the government more than $5 million in book royalties and fees derived from related speaking engagements.
It was the first time he had taken a real drubbing in court since ripping the U.S. intelligence community apart, though he has been indicted on espionage and theft charges and could face a severe criminal penalty if he ever winds up in U.S. hands.
Besides sanctioning Snowden himself, the court ordered that his publisher’s profits be frozen and placed in a “constructive trust” under government control. In my case, the government declined to target my publisher, Random House, for fear of rallying the press and 1st Amendment purists to my defense. The Trump Justice Department was not so reticent in Snowden’s case. Now anyone who assists an errant security worker in breaking clearance rules can expect a financial hit.
On a more cosmic level, the Snepp ruling remains a crippling handicap for all potential whistleblowers with a national security background, because whatever the provisions of the latest whistleblower protection laws, the errant author can still be sanctioned as I was.
Even more significant is what the Snepp ruling has done to free speech protections in general. In essence the “Snepp Court” rewrote the 1st Amendment doctrine set out in the Pentagon Papers decision. The unsigned ruling in that case allowed the press to publish the Papers, despite their “Top Secret” labels, because, as the ruling put it, the government had not met the heavy burden of proof (whatever that meant) needed to justify “prior restraint,” the quashing of a publication before it happens.
The Snepp ruling muddies that formula. No one who falls under its long shadow, including millions of past and present employees of the U.S. security establishment, can publish any job-related information—even non-secrets—until the government says so. And no government lawyer has to offer any proof to justify stifling free speech this way. It is enough simply to show that the prospective or offending leaker has a contractual or implicit obligation of trust with the government —and presto! He or she is muzzled, banished to the poorhouse, and stigmatized as a threat to national security.
But it gets worse.
It turns out that the authors of the Snepp decision had a leak problem of their own, which they kept hidden at the time, and which brings into question the integrity of what they wrought.
In late 1979, as the court was putting the finishing touches on its Snepp brief, reporters Bob Woodward and Scott Armstrong published a blockbuster book, The Brethren: Inside the Supreme Court. It was an unflinching look at some of the most controversial decisions that had been handed down thus far by Chief Justice Warren Burger and his colleagues. To book reviewers and court watchers alike, it was obvious that many of the juiciest morsels in The Brethren had come from leakers inside the high tribunal itself, with suspicions centering on the law clerks who backstopped the justices.
Eight weeks later, with the book climbing the best seller lists, the court released its unsigned opinion in Snepp. My lawyers were stunned at its harshness and there was speculation in legal and press circles that the ruling was intended, in part, as a warning to the court’s own clerical staff to clam up.
The truth was more nuanced. While some of the leaks doubtless bubbled up from staff-level, some were trickle-down from the top.
Woodward told Playboy magazine in 1989 that the main leaker who had serviced him was Justice Potter Stewart, who had since died. Woodward later indicated to historian David Garrow that Justices Lewis Powell and Harry Blackmun had also handed him under-the-table information.
Garrow, working on his own, uncovered a memo Powell had written in 1980 admitting that he had talked off-the-record with Woodward.
“We should not foreclose all conversations with representatives of the media," Powell remarked. He also claimed to be "more than a little discomforted by some of the [Court’s closed-door] Conference conversations about this subject" which seemed to discourage contacts with the press.
What does all this mean within the context of Snepp case law and the Court’s general hostility towards leakers of government information?
It means that all that hostility amounts to a crass double standard.
As I reveal in my own memoir of the case, Irreparable Harm, the author of the unsigned Snepp decision was Justice Powell, with Justices Blackmun and Stewart plus three others joining in affirming it. That means that three of the guys who contrived to punish me for leaking non-secrets about Vietnam were fresh off of leaking court secrets to Bob Woodward.
It means these three hypocrites were guilty of violating obligations of trust every bit as sacrosanct as those they claimed I had breached.
It means that one of the most draconian anti-leak rulings by the Court, one that reaches forward to constrain all future whistleblowers, was tainted at birth.
Though the three offending Justices may have seen no harm in cleaning up the record of the Burger Court, their unburdening to Woodward was no fault-free excursion into truth telling, no easily forgiven example of judicial whistleblowing. Anyone who violates the discretion of the court’s deliberative process forfeits the high ground in judging others who allegedly breach a public trust.
Given these indiscretions, how can any member of this court presume to pronounce on any case involving a breach of confidence or of official secrecy. Once a justice becomes just another self-interested hawker in the public square, a fencer of purportedly discrete information, he or she is no better, at least in principle, than the likes of Edward Snowden —and is maybe even worse since Snowden isn’t hiding behind a black robe.
Incidentally, the current court rejected a plea from 1st Amendment advocates last summer to overturn the ruling in US v. Snepp. The justices thus left themselves free to go on savaging leakers less privileged than their own.
Earlier, I faulted Snowden for failing to add context to his never-ending assaults on the U.S. spook community, his unwillingness or inability to acknowledge that Big Brother speaks in many languages, including Russian, and that America has no monopoly on state-driven carnage and mendacity.
Every time I read one of Snowden’s anti-CIA/NSA riffs I feel as if I am watching a televised heavyweight bout, with the camera focused on only one thug in the ring and nary a shot of the other. And I feel used and cheated, all the more because I know first-hand that it is possible to blow the whistle on thuggishness with a modicum of balance and perspective—and with context.
Back in 2014, when Snowden was angling for clemency from the Obama crowd, I bill-boarded my reservations about him. Writing in The Los Angeles Times, I decried his seeking refuge abroad—finally in Russia—to escape accountability. I cast my own choice as the better one, noting that I had never tried to run or hide after calling the CIA out for what I thought were mistakes. Instead, I had stayed and taken “my lumps, accepting them as the price we pay in a democracy for the right to speak out.”
I also expressed concern in my op-ed about what I saw as Snowden’s hypocrisy.
“He claims his only concern is for privacy,” I wrote, “But many of his leaks, like those exposing National Security Agency operations against Chinese targets, and those involving critics and allies in Europe and Latin America, have nothing to do with 4th Amendment protections for American citizens and everything to do with ingratiating himself with potential benefactors, from Beijing to Moscow.
“Had he read through his stolen documents, moreover, he would have realized that Russia and China are as aggressive as anyone on the planet in attacking our digital firewalls. If he were to cripple the NSA, which seems to be his real purpose, he would simply be sabotaging our defenses against governments that abhor our constitutional values, including privacy rights.”
I concluded with a passage that eerily anticipated what now seems to be a key Snowden objective:
“Last May , Snowden told the Washington Post that he intended to seek asylum and that he ‘wanted to embolden others to step forward … by showing that they can win.’ His statement wasn’t a paean to accountability, but a Pied Piper’s manifesto aimed at tempting others into heisting and fencing official secrets in the belief they’d never have to answer for it.”
Whistleblowing is always a blood sport, however the law, your own lawyers or the government’s, look at it, and no one who climbs into the ring comes out whole. It is just the way the cookie crumbles.
But never once did it occur to me to bolt. I took my cue from Ellsberg. Despite facing civil and criminal sanctions, he had stayed put and faced the music after the Pentagon Papers hit the stands. If such deference to the law was good enough for him, it should be the golden rule. It is what elevates an ostensible act of banditry or faithlessness into morally defensible civil disobedience. Take away this squaring of accounts and all you’re left with is an ego trip and your fellow citizens will feel only contempt and suspicion towards you, reducing the value of whatever good you may have done.
Okay, I get it, I am beginning to sound preachy.
But stay a moment longer. I have one more thing to say that will help contextualize the story I am unspooling here.
It is about the videotaped interview that Snowden hijacked, and the circumstances that produced and informed it.
Understand, for starters, that the interview occurred within the context of a national reckoning, the likes of which would never be conceivable in Putin’s Russia.
By the time I went before the camera, in late spring of 1983, eight years had passed since the fall of Saigon. Decent Interval, unveiled late 1977, had stirred some debate about the war, even if I had hoped for more.
In the meantime, press exposés, congressional investigations, and a presidential commission had uncovered previously unimagined CIA coup plotting and kill missions, the covert manipulation of U.S. press outlets, and the agency’s research into how to weaponize mind-bending drugs like LSD.
The CIA, chastened by these revelations, quickly foreswore the use of journalists as spies. And President Ford issued an executive order declaring, “No employee of the United States Government shall engage in, or conspire to engage in, political assassination.”
As a conflicted whistleblower who still heard the cries of dead and betrayed Vietnamese in my night sweats, I was heartened by the portents. Our better angels seemed to be testing their wings. I dared to hope that the traumatic lessons of Vietnam and the shedding of our Cold War baggage would soon put the nation in a better place.
What a sap I was!
As the press began dissecting the reforms embraced by Congress and the executive branch, nuances emerged that undercut their promise and purpose.
It turned out that the 1977 ban on CIA recruitment of journalists did not extend to reporters who worked for foreign outlets. And Ford’s restriction on political assassinations contained so many muzzy caveats that you had to wonder what kind of killing was permissible and what wasn’t.
The liberal Carter administration sued me for my memoir, forcing me to revisit ghosts I had thought I had exorcized with my writing. The Supreme Court ruling against me stripped me of every cent to my name.
Keying off Snepp, the Reagan administration began imposing non-disclosure agreements on federal workers who had no exposure to official secrets. And by 1983, as a fledgling broadcast journalist, I had begun to uncover new White House initiatives to shift controversial covert operations out of the CIA, where they were subject to congressional oversight, to Pentagon entities, like the precursor to the Seal Team 6, that did not have to answer to Congress. This assault on accountability would eventually produce Oliver North and the off-the-books outlawry known as the Iran-Contra scandal.
In the spring of 1983 that last outrage was still to come, but the drift of things was evident to me when I sat for the interview at USC.
Under the circumstances I felt compelled to share what I knew of past CIA efforts to coopt the truth and poison the news, because I feared that any backsliding in that direction would compromise the new instruments of accountability that were already looking shaky.
My alarms, the remarks I made to interviewer Clete Roberts, were of the moment, and keyed to what I considered an imminently worthy cause.
Snowden’s attempt in recent days to mobilize those comments on behalf of pathological dissembler who daily murders truth and its exponents and treats accountability as a state crime is yet further evidence of this ersatz “crusader’s” own moral bankruptcy.
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