Hillary Clinton's Unreliable Statements on Whistleblowing

By Conor Friedersdorf

Hillary Clinton's recent attack on Edward Snowden was cited by my colleague Peter Beinart as an example of her newfound ability to exude authenticity in public statements. "She said something some liberals will not like—that America needs to spy and that Snowden’s motives are suspect—but which she undoubtedly believes," Beinart wrote. "It sounded authentic because her natural instincts are to see the world as a Hobbesian place and to defend America’s governing institutions against those on the right or left who would delegitimize them."

Beinart is right: There is every reason to believe Clinton authentically distrusts Snowden and his actions. So I concur with his analysis of those sentiments. But elsewhere in the same interview, Clinton spoke words that Democratic primary voters ought to take as evidence that she is a bullshitter. Mother Jones gives this account of Clinton's words:

Hillary Clinton didn't have to directly deal with Edward Snowden's leaks when she was secretary of state. Clinton had already stepped down from her post by the time the Guardian published its first revelations on the expansive scope of spying by the National Security Agency. But at an event at the University of Connecticut ... Clinton made it clear that she's no fan of the NSA leaker, insinuating that Snowden had cooperated with countries hostile to the United States and unintentionally aided terrorist organizations. "I don't understand why he couldn't have been part of the debate at home," she said.

Clinton questioned Snowden's intentions in fleeing the country before offerring his information to the public. "When he emerged and when he absconded with all that material, I was puzzled, because we have all these protections for whistleblowers," Clinton said, when the moderator asked if there had been any positive effects for security policy following the NSA leaks. "If he were concerned and wanted to be part of the American debate, he could have been."

This gets significant facts wrong. At best, Clinton is ignorant about federal whistleblower laws, and if we presume that she has the baseline knowledge needed to be competent in her former roles, she is willfully misleading her audience.

"I was puzzled," she said, "because we have all these protections for whistleblowers." The Freedom of the Press Foundation calls out her misinformation:

Contractors like Snowden lack the protections that federal employees are entitled to, and the government is free to retaliate against such people under the law. As Angela Canterbury, director of public policy at the Project on Government Oversight, has explained: “There is a gaping loophole for intelligence community contractors. The riskiest whistle-blowing that you can possibly do on the government is as an intelligence contractor.”

As for the idea that Snowden could've been "part of the debate" at home, rather than fleeing abroad:

As Pentagon Papers whistleblower Daniel Ellsberg explained in the Washington Post, Snowden would likely be in a maximum security prison right now if he remained in the U.S., unable to speak to the media. Second and more importantly, Snowden would likely be barred from making any of arguments claiming he was a whistleblower during his trial, since the government is charging him under the draconian Espionage Act of 1917. As we have pointed out repeatedly, lower court rulings in other cases against leakers have prevented defendants from telling a jury about their intent to inform the American public, the lack of harm their leaks caused, and the benefits to society.

The government even tried to bar NSA whistleblower Thomas Drake from mentioning the words “whistleblower” or “First Amendment” during his trial. Simply put, it would be impossible for Edward Snowden to participate in an informed debate in the public or the courtroom if he was in the United States.

Does Clinton know that? Well, as secretary of state, her chief spokesman attacked the Pentagon for its treatment of Chelsea Manning. Here's a reminder of how Manning (then known as Bradley) was treated before being convicted:

From the beginning of his detention, Manning has been held in intensive solitary confinement. For 23 out of 24 hours every day—for seven straight months and counting—he sits completely alone in his cell. Even inside his cell, his activities are heavily restricted; he’s barred even from exercising and is under constant surveillance to enforce those restrictions. For reasons that appear completely punitive, he’s being denied many of the most basic attributes of civilized imprisonment, including even a pillow or sheets for his bed (he is not and never has been on suicide watch). For the one hour per day when he is freed from this isolation, he is barred from accessing any news or current events programs.

Lots of people disagree with Snowden's decision to flee, but it's absurd that Clinton finds his flight puzzling, as is her notion that he'd have been able to participate in the surveillance debate as he has these last months if he'd stayed.

And even if Snowden weren't a Booz Allen Hamilton contractor, if he were a federal employee with all the attendant protections, what's that worth now? Obama is a president who refused to prosecute CIA torture, despite being legally obligated to do so, but did prosecute the first torture whistleblower! This is a president who has presided over more more prosecutions under the Espionage Act than all past presidents combined, waging what has been rightly called "an unprecedented war on whistleblowers."

Clinton has no objections to this approach. She's well aware of the Drake case:

In 2010, NSA staffer Thomas Drake tried to use proper channels to report allegations of improper contracting but wound up the target of an investigation, said Kathleen McClellan, the national security and human rights counsel for the Government Accountability Project, a whistleblower advocacy group. "Drake followed the Intelligence Community Whistleblower law to a ‘T’," McClellan said. "He went to the Department of Defense inspector general and both congressional intelligence committees and it did not protect him from retaliation. In fact, it made him the target of an investigation."

Federal agents wrongly went after Drake in pursuit of a separate matter and charged him with multiple felonies, according to a report from the Committee to Protect Journalists. When it became clear that whatever Drake had shared with the press was either not classified or already in the public domain, the government’s felony case collapsed. A federal judge said it was "unconscionable" that Drake and his family had endured "four years of hell."

Yet Clinton has the chutzpah to say, "When he emerged and when he absconded with all that material, I was puzzled, because we have all these protections for whistleblowers." It insults our intelligence that she thinks we would find that credible.

For the record, Snowden told this to Vanity Fair:

The N.S.A. at this point not only knows I raised complaints, but that there is evidence that I made my concerns known to the N.S.A.’s lawyers, because I did some of it through e-mail. I directly challenge the N.S.A. to deny that I contacted N.S.A. oversight and compliance bodies directly via e-mail and that I specifically expressed concerns about their suspect interpretation of the law, and I welcome members of Congress to request a written answer to this question.

I have no idea if that's accurate or not.

What I do know: Any Democrat who is averse to misinformation from their standard bearer, or who wants a president committed to protecting whistleblowers, rather than dissembling about how well they're treated already, ought to find an alternative to Hillary Clinton.

This article available online at:

http://www.theatlantic.com/politics/archive/2014/04/hillary-clintons-unreliable-statements-on-whistleblowing/361354/