EU Hearing: War Against Whistleblowers, War Against Journalists, War Against Democracy

Former US National Security Agency and British MI5 employees urged the European Parliament yesterday to push for better better democratic oversight over secret services and better protection of whistleblowers. Nothing less than the sovereignty of states and of citizens are at stake, warned former NSA official Thomas Drake.

“We see the advent of the police and surveillance state,” warned ex-NSA analyst Kirk Wiebe. Former MI5 intelligence officer Annie Machon spoke about a “surveillance dystopia” and the ongoing attempt to stifle free media.

Parliament hearing documents are available here.

Drake had left the NSA in 2008 after blowing the whistle on fraud, loss of intelligence and the establishment of secret massive electronic surveillance. He witnessed, he told the members of the Civil Liberties Committee (LIBE), the start of large dragnet programs in the first few months after 9/11.

These programmes routinely violate the constitutional protection and disregard the fundamental rights of non-US citizens, he said motivating him to reach out to the public. “Nothing less than the sovereignty of citizens are at stake,” he said. One big motivation for the lack of oversight – Drake spoke of “undersight” – were the top dollars earned.

“Surveillance is a huge growing industry,“ Drake told the MEPs, and Congress is more interested in saying yes to national security than in real oversight.

Instead of addressing the problems, NSA and the administration had made him an “enemy of the state,” forced him out of the job, left him with no stream of income and an emptied bank account from paying for attorney fees. This had sent “the most chilling message about what the government can and will do when one speaks true to power.”

Wiebe criticised the breakaway of the agency from the legal limitations on data collection and access. When Michael Hayden had been NSA director, the safeguard clause of the Fourth Amendment had been reinterpreted following one decision of the Supreme Court. The operative rule for surveillance changed from “probable cause” to “reasonable suspicion,” so that the agency “can have a freer hand to investigate,” Wiebe explained.

In addition, data gathered through Secret Service surveillance was introduced into police work with so-called “special operation divisions” cleaning up and masking the illegality of the whereabouts of the data-gathering. The effect on citizens was they were not aware that evidence used against them in trial had not been authorised by the government to be used in the first place, Wiebe said. Wiebe’s recommendation to the European Parliament: “Encryption is the barrier that must be used.”

A clear definition of national security, meaningful parliamentary oversight of intelligence agencies, and legitimate channels for intelligence whistleblowers to give evidence of malfeasance were recommended by Annie Machon to the members of the LIBE committee. Machon had fled the UK together with her partner David Shayler after informing the media on what she described as clearly illegal activities of the British service.

Only in the mid-1990s, parliamentary oversight over the intelligence services was introduced in the UK, while up to then under the 1911 Public Secrecy Act, it had be a crime even for members of Parliament before to ask questions about the branch, she said. Machon confirmed for the UK what Drake and Wiebe had reported for the US: parliamentary oversight had been toothless so far. “They are unable to call for witnesses, to demand access, or investigate crimes,” she said.

An additional problem she mentioned was that the services were holding information about ministers, never allowing them to see what was in the files about them. The same was true for media who at times faced so-called super-injunctions and investigations under the terrorist act and even under the existing UK whistleblower act when publishing materials received from whistleblowers.

Eavesdropping on US senators by the NSA was reported last week by US media, too. An amendment to limit the protections from the Free Flow of Information Act to a more “exclusive club” of official journalists is underway in the Senate according to US reports.

All experts heard in yesterday’s LIBE event appealed to the members of Parliament to consider better protection for whistleblowers. An exception allowing Secret Service agents to inform on wrongdoings in the public interest was eliminated from the 1911 law in 1989, she said.

John Devitt of Transparency International Ireland pointed to existing proposals from his organisation and also the Council of Europe which presented draft recommendations [pdf] under discussion at the 47-member organisation at a conference in May. Meaningful protection, Devitt said, has to extend to all workforce including in the defense and intelligence area, and it has to be available for contractors, trainees, as well as regular employees. In Ireland, new whistleblower legislation is underway currently.

The chair of the hearing, Dutch Liberal MEP Sophie In’t Veld, concluded, “if all the oversight does not work, basically the whistleblowers are the only instruments we have left to know.” The war against whistleblowers is in fact a war against democracy, she said.

The man who helped to start the very discussion, ex-NSA employee Edward Snowden, also made his comments on the EP discussion, welcoming the start of the broader debate in a letter conveyed by whistleblower attorney Jesselyn Raddack, director of national security and human rights at the Government Accountability Project.

Calling secret and unchecked surveillance the “greatest human rights challenge of our times,” Snowden wrote to the Parliament about the need for better “channels for people of conscience to inform not only trusted government agents, but also independent representatives of the public outside of government agencies.”

Creativity, upon which modern societies depend, he also wrote, is the product of curiosity, which in turn is the product of privacy, and the vital public debate on the balance between security and privacy is not possible without public knowledge, according to Snowden. But, he said, “the cost for one in my position to return public knowledge to public hands was prosecution and exile.”

Snowden has been nominated to receive this year’s Sakharov Prize of the European Parliament alongside an illustrious list of freedom fighters, including Mikhail Khodorkovsky, a businessman sentenced first to nine then to twelve years of prison over politically motivated corruption allegations in the very country that has granted asylum to Snowden, Russia.