When Whistleblowing Is ‘Orderly and Lawful,’ There Is No Whistleblowing

by Mark Wilson

President Obama loves transparency. He just doesn’t love it when it’s irresponsible, as in the case of Edward Snowden’s leaks. It’s got to be “orderly and lawful.”

Of course, the reason that electronic surveillance is even a topic at a press conference, and President Obama has to be defensive about surveillance, and even acknowledge that some degree of surveillance is happening and reforms are required, is because of Edward Snowden’s leaks.

The problem is that whenever we use an “orderly and lawful” method of challenging electronic surveillance, the result is that there is no challenge because the government stops it.

It does so in court by alleging that, because providing proof of the plaintiff’s surveillance would endanger national security, the government can’t allow discovery of surveillance, and because of that, the plaintiff can’t prove that he was surveilled, and because of that, there’s no way the plaintiff can show an injury, and because of that, the suit should be dismissed. And these suits are routinely dismissed due to “national security,” which is not in itself an illegitimate reason, but its consistent use to dismiss cases where American citizens are monitored by their government while engaged in lawful speech activities raises the question of whether the “national security” justification is being abused.

It does so in Congress by explicitly preventing lawsuits regarding surveillance against named defendants; i.e., telecommunications companies that knowingly and willingly (and sometimes eagerly) gave private information to the government and in some cases actively helped them, as in the case of AT&T by building a special surveillance room just for the NSA in one of its San Francisco switching centers.

President Obama’s post-speech Q&A confirms that his definition of “orderly and lawful” consists of “just trust me on this.” There’s no other way it could be: citizens are locked out of determining what their government is doing to them in all three branches of government, and oversight is reserved for the Executive Branch alone; even members of Congress whose job it is to oversee these classified programs are not given the whole story.

Again, it’s worth pointing out: if Edward Snowden had pursued an “orderly and lawful” dissemination of information, there would have been no dissemination of information at all and this story would have died, as it has many times before throughout the Bush administration and in President Obama’s first term. The government would have denied that it monitored Americans’ communication (just as NSA Director General Keith Alexander did, under oath, in March) while in fact it was monitoring Americans’ communication. There would be no way to substantiate crazy conspiracy-theory claims and the government wouldn’t be forced to justify monitoring huge swaths of private communication. That President Obama must now go on record and justify his actions to his constituents is the result of whistleblowing that didn’t follow the rules.