On whistleblowers and secrecy: What author Barry Eisler said to a room of ex-intelligence officers

Whistleblowers Edward Snowden, Julian Assange and Chelsea Manning in the installation “Anything to Say?” by Italian artist Davide Dormino. REUTERS

Author and former CIA officer Barry Eisler spoke at the Association of Former Intelligence Officers opposite ex-CIA and NSA director Michael Hayden on Monday. Below, an adaptation of his opening remarks about the importance of whistleblowers and government transparency. Eisler's new novel, "God's Eye View," inspired by the Snowden revelations, is available now on Amazon.


Thank you, it’s a real honor for me to be invited to address this group today along with General Hayden. I worked at CIA for only three years, and that was almost 25 years ago, so I barely feel like an actual former intelligence officer. Not that this stops people who hear about the CIA background from asking me at book signings who killed JFK, and which assassinations and coups I was involved in, and what the aliens at Area 51 really look like.

Today I’d like to share a few thoughts, not just as a former intelligence officer—to the extent I qualify for such a title—but also as a former technology lawyer, former startup executive, and current full-time thriller writer. What I have in mind are some issues I deal with in my latest novel, The God’s Eye View, which involves the NSA, whistleblowing, and some political skullduggery, plus the usual compelling characters, exotic locations, and steamy sex I like to think my stories are known for. Specifically, what I want to talk about is intelligence and propaganda—two endeavors I think are diametrically opposed and that we should take great care to distinguish.

I’ll start by talking about whistleblowing, and in particular about Edward Snowden. I’m confident there’s a range of opinion in this room about the merits of what Snowden did. A divergence of opinion about acts so consequential isn’t just inevitable; in a democracy, it’s desirable. So I’m glad to know we won’t all see eye-to-eye on Snowden, and that we’re able to discuss him and his revelations in the spirit of honest debate.

But regardless of how our views might differ, there are a couple of items I think the media has distorted—distortions that make honest debate more difficult. And those distortions are part of what I’d like to talk to you about today.

You might have come across a phrase involving Snowden—in fact, this phrase isn’t easy to avoid if you favor establishment pundits like David Brooks and Fred Kaplan and Josh Marshall—to the effect that Snowden violated his “oath of secrecy.” Even former CIA director David Petraeus has claimed—awkwardly, in retrospect—there is such an oath. I wrote about this supposed oath in a bit more detail after the first Snowden stories broke, in a blog post called “Memo to Authoritarians.”

All of us in this room know there is no “oath of secrecy”—that the notion of such an “oath” is the product either of ignorance or propaganda. There is a secrecy agreement—what here in Silicon Valley we typically call a nondisclosure agreement, or NDA. But to inflate the status of such an agreement to the level of an “oath,” akin to, say, the president’s oath of office, is false and misleading.

And worse, the false and misleading notion of an “oath” of secrecy obscures the existence of an actual oath—the oath we in this room have all taken, and continue to adhere to: the oath to protect and defend the Constitution.

Edward Snowden signed a secrecy agreement. He also swore an oath to protect and defend the Constitution. You might not think he got the balance right—that, despite the subsequent rulings of several federal courts, the programs Snowden revealed were not in fact unconstitutional. Or that a secrecy agreement should always trump an oath to protect the Constitution. Or that Snowden went about protecting the Constitution in the wrong way. We should have those conversations. They’re important. But what we shouldn’t do is to suggest, implicitly or otherwise, that an obligation to protect secrecy exists in a vacuum. We shouldn’t pretend that the oath to protect and defend the Constitution is unimportant, or worse, that it doesn’t even exist. To do so would be to get the facts wrong. And as intelligence professionals, we know that if we get the facts wrong, the likelihood of accurate, useful, effective conclusions becomes pretty remote.

Now, at this point I wouldn’t be surprised if at least some people here are wondering, “Well, Barry, that’s fine, but what if everyone did what Snowden did? What if every top-secret cleared federal employee took it upon herself or himself to declassify whatever she or he deemed to be in the public interest?”

It’s in interesting question. But I think it’s a misleading one. Here’s why.

First, because the question is essentially a fantasy. Whistleblowers are in fact incredibly rare. The government has been so draconian in its application against whistleblowers of the 1917 Espionage Act that the demonstrated risks and costs of whistleblowing deter almost everyone. So the reality is that only people of the most exceptional conscience, courage, and conviction have ever become whistleblowers, and only a handful ever will. To try to frame the question as some version of, “Well, what if there were in fact innumerable whistleblowers?” is therefore akin to discussing angels dancing on pinheads—not an exercise in which intelligence professionals would ordinarily engage.

Interestingly, the tendency to focus on the fantasy of what might happen rather than on the reality of what is happening is not unique to discussions of whistleblowing. It is also prominent in discussions of torture, where torture proponents try to frame the issue around a hypothetical that has never happened and will never happen—the ticking time bomb, where the government has captured a terrorist we know has planted a bomb, who we know can disarm the bomb, and who we know will tell us under duress where the bomb is and how to disarm it. And this fantasy then obscures the reality of the actual costs of torture—erosion of our adherence to our own laws and values; wild goose chases; alienation of indigenous populations and a drying up of potential walk-in sources of intelligence; and a propaganda bonanza for our enemies.

So: what reality does the “What if everyone were a whistleblower” fantasy obscure? Three things:

First, the reality is that the government classifies far too much information, frequently in violation of applicable laws governing what information may and may not be classified. We knew this long before Edward Snowden; we know it even more now. A little secrecy is necessary to protect democracy. Too much secrecy begins to strangle it. So rather than focusing on the fantasy problem of what might happen if more secrets were revealed, shouldn’t we be focusing on the real problem of what is happening because too many secrets are being created? Why do we blame whistleblowers for revealing things we might believe should be secret, while giving the government a pass on classifying things that shouldn’t be secret? Why would we want to obscure the many harms caused by over-classification, including demonstrably horrendous decision-making like the Bay of Pigs invasion, nonexistent missile gaps, and the Gulf of Tonkin basis for our war in Vietnam?

In this regard, I have to say I think it’s a shame our discussion today isn’t being recorded and made available to other citizens with an interest in how former intelligence officers view these issues. It’s a minor moment in the scheme of things, yes, but closed-door discussions like this one are in some ways a manifestation of the problem. We’re a democracy. Wherever possible, we should favor openness over secrecy.

Second, the reality is that if we really are worried about the unauthorized disclosure of secrets, we should be prosecuting the thousands of officials who incessantly leak secrets favorable to the government. Instead, secrecy is enforced selectively, with the government prosecuting the few leaks it doesn’t like while smiling benignly on the thousands it does. In this regard, a Martian might find it strange that the Espionage Act has been deployed, say, against former CIA employee John Kiriakou, and not against former CIA director David Petraeus, whose misdeeds regarding classified information were at least equally noteworthy. Or against former CIA employee Jeffrey Sterling, but not against Hillary Clinton, who stored classified information on an unsecured personal email server. Or against any of the numerous government officials who leak supportive details about America’s drone assassination program, even as the CIA resists in court Freedom of Information Act demands about the most basic aspects of when, where, how, and whom the US government believes it can kill with drones. There are countless other examples of this apparent double standard, and our Martian might conclude that the only difference between the people prosecuted for leaking secrets and the ones who aren’t is that the latter class is more powerful, or leaks in a fashion the government likes. It would be hard to argue that the reality of such a one-sided and hypocritical enforcement of secrecy rules—or of any law—could be healthy for a democracy.

Third, the reality is that corruption and criminality flourish in secret, and that government corruption and criminality does far more damage to national security than any whistleblower ever could. One of the things we learned from Snowden’s revelations is that Director of National Intelligence James Clapper was lying in his Senate testimony about whether the NSA collects data on millions or hundreds of millions of Americans. Even Clapper himself subsequently acknowledged that his testimony was “untruthful.” When a whistleblower reveals that the head of American intelligence is lying in his testimony to a Senate oversight committee—a federal crime akin to perjury—I think as citizens we ought to focus more on how national security is being damaged by the lying than on how it might be damaged by the whistleblowing that exposes those lies.

But instead, in response to every whistleblower revelation ever, the government’s scripted response is to claim “grave” or “irreversible” damage to our national security, or “blood on the hands” of the whistleblower and the media that then reports on the whistleblowing, only to have those claims subsequently revealed to be alarmism at best. Just a few examples:

The rightness of Daniel Ellsberg’s whistleblowing regarding the Pentagon Papers has been vindicated by history, and today everyone understands that what was harming US national security was a war built on lies, not the whistleblower who exposed those lies.

Despite her role in catalyzing the Arab Spring, in exposing various government lies about civilian casualties in Iraq, and in otherwise educating the public about the actual policies being pursued in our name, Chelsea Manning faced the usual “blood on her hands” accusation for the Wikileaks Cablegate revelations—after which even former CIA director and former Secretary of Defense Robert Gates acknowledged that Manning’s actions caused no substantive damage.

After sharing unclassified information with a reporter about waste involving Trailblazer—an NSA program that was cancelled after the NSA Inspector General judged it an expensive failure—Thomas Drake was prosecuted under the Espionage Act. Eventually, the government dropped all charges, and Drake pled to a misdemeanor of unauthorized use of a computer. Once again, the harm lay in the corruption the whistleblower revealed, not in the whistleblowing that revealed it.

Given all this, our hypothetical Martian might wonder if the seemingly obligatory government “blood on his hands” scaremongering might be intended to distract from the governmental wrongdoing whistleblowers reveal. Were Martians possessed of a sense of irony, ours might also wonder at the spectacle of a government that kills hundreds of thousands of innocents in the course of endless wars suggesting that the real blood-on-their-hands culprits are the people blowing the whistle, and not the politicians forever blowing the war trumpets.

So to distort facts, to overlook inconvenient facts, and to focus on fantasy hypotheticals while ignoring actual costs are dangerous habits for intelligence professionals. Indeed, I would argue that these habits are a form of propaganda, which we should understand to be abhorrent in part because propaganda is the opposite of intelligence.

In this regard, I want to discuss one a related tendency I think intelligence professionals should be on guard against: the recruitment of language in service of political ends. You don’t have to have read George Orwell’s Politics and the English Language to know there are always euphemisms available to us by which we can obscure the true nature of our actions. But the purpose of language for intelligence professionals is not to describe the world as we wish it, but rather insofar as possible to describe the world as it is.

There are so many suspect phrases worth a second look in this regard—enhanced interrogation techniques vs torture; detainees vs prisoners; targeted killing vs assassination; interventions vs wars; regimes vs governments; tribes vs factions; data collection vs surveillance; collateral damage vs innocent human beings burnt to death and blown into little pieces; the notion that terrorists somehow magically “self-radicalize” rather than being radicalized by our policies of assassinations, bombings, invasions, and occupations, as a Rumsfeld-era Pentagon study unsurprisingly found…you could write a book on this topic, and probably someone should (at least in the meantime we have an interim list of NSA-speak compiled by two ACLU lawyers). But we don’t have time for that today, so for the moment I’d like to focus on just a few descriptive phrases I find troublingly misleading and that I think are worth reconsideration.

The first is former NSA director Keith Alexander’s famous notion that “You need the haystack to find the needle.” This phrase has been picked up and propagated by legislators, lawyers, and journalists, and has undoubtedly shaped the public’s understanding of the nature of bulk surveillance (or, as the NSA might call it, “data collection”). And it’s an appealing notion at first glance, isn’t it? There’s a farm, or maybe a barn, with a bunch of hay scattered around, and General Alexander just wants to sweep up the hay into a neat pile and find the needle in it. Nothing menacing about that, is there? In fact, removing that nasty steel needle from all that soft, organic hay might even prevent someone from getting stabbed in the buttocks.

But think about it. “Needle in a haystack” is just a phrase intended to denote an item hard to find against a given background. There is no organic connection at all between needles and hay, so saying, “To find the needle, we have to collect all the hay” makes about as much sense as saying, “To find the needle, we need to collect all the bicycles.” After all, there’s about as much chance of a needle being in a haystack as there is of a needle being in a collection of bicycles. So either Keith Alexander is suggesting we need to collect a dataset that has nothing to do with the data we’re actually looking for—or he’s instead suggesting that we what we really need is to collect everything. But because the American people might find objectionable the notion of the government collecting everything about our electronic communications, online behavior, and physical movements, it’s easier to frame the program as something limited, something out of an Andrew Wyeth painting, rather than as something out of, say, Nineteen Eighty-Four.

collection_posture

painting

One other such phrase I’d like to comment on is the title of the book we’re all looking forward to hearing former director Hayden discuss with us today: Playing to the Edge. This is of course a reference to General Hayden’s notion that he will always play the game of intelligence within the rules—but so aggressively, so “close to the line,” that he will get “chalk dust on my cleats.”

As a student of what makes an effective book title, I want to start by saying that I think Playing to the Edge is a killer title, and my reservations about the notion of playing to the edge, and chalk dust on my cleats, has nothing to do with any shortcomings in terms of selling the book.

Instead, my concern is that I think the imagery, while powerful, is misleading. Because in a game of football, which is what the imagery seems most closely tied to, or in any game played on a field with lines, there are two critical components: spectators, and a referee.

That is to say, a game on a field is being watched by an audience and monitored by a judge. But in the game General Hayden was playing while head of the NSA and then head of the CIA, these two critical components did not and do not exist. Until Edward Snowden revealed it, the bulk surveillance game was played in secret. Not only was the American public not permitted to watch from the bleachers or on television, the American public was not even permitted to know of the game’s existence.

As for a referee, the closest approximation in the American intelligence game would be the entity commonly known as the FISA court. But the FISA “court” itself meets in secret, issues rulings that are kept secret, and permits no adversarial process at all. And if you think a term like “rubber stamp” is too harsh for a body that has denied only eleven out of something like 33,400 government surveillance requests—an approval rate of 99.97%—then another way to understand the FISA body’s function is as something more akin to the Justice Department’s Office of Legal Counsel, or some other executive administrative office. In fact, I would argue that the term “FISA court” itself is propagandistic, intended to suggest to the public that intelligence programs have been blessed by the judiciary—that is, that they are being refereed, and that the referee will impose penalties for rules violations—when the truth is, this is not at all the case.

In fact, if you think about it, an executive intelligence agency getting a blessing from another arm of the executive is not so different from say, a novelist setting up a review page to praise his own novels. There’s a word for this in the book business, by the way—it’s known as sock puppetry, and is widely and rightly frowned upon. But the game General Hayden was playing is vastly more important, with vastly greater consequences, than the game played by novelists. The intelligence game as played in a democracy requires an audience and a referee if we’re to ensure that We, the People are satisfied it is being played as we want it to be played—indeed, if the people are going to have any say in the game at all—and I’m concerned that General Hayden’s vivid imagery might suggest to people who don’t know better that the game he refers to has an audience and is adjudicated by a referee when in fact it has neither.

There are so many related examples of propaganda creeping into intelligence I think are worth discussing: the notion that Dianne Feinstein was being unacceptably emotional when she reacted to Americans torturing prisoners (or, as it’s more commonly known, “conducting EITs on detainees”)—while we view the wars we launched in Afghanistan and Iraq immediately following 9/11 the products only of pure logic, reason, and dispassion; that former CIA director James Woolsey, in calling for Snowden to be “hanged by the neck until he’s dead, rather than merely electrocuted” is perhaps himself just slightly in the grip of ungovernable and undesirable emotions; that a failure to deploy killer sky robots or otherwise go to war is identical to “inaction,” as General Hayden suggested in a recent New York Times op-ed; that the mission patches released by organizations like the National Reconnaissance Office, depicting creatures like demons, raptors, the Grim Reaper, and a giant, angry octopus strangling, eating, and/or assaulting the earth, are perhaps telling us something we ought to heed about the collective id of what we refer to in our friendly, benevolent way as the “intelligence community.”

octopus

But I want to make sure there’s time for Q&A because I imagine not everyone here will see these issues in quite the same way I do. Which, again, in a democracy is something I see as both inevitable and desirable. So thank you for listening and for considering my thoughts, and I’ll look forward to hearing yours now, too.


This essay was originally published on the Freedom of the Press Foundation blog.