Who watches the watchers? Snowden and the crucial role of whistleblowers

This is how in his 2019 autobiography Permanent Record Edward Snowden describes one of the “indoctrination” sessions he attended at the CIA, years before he blew the whistle. Snowden is a former CIA employee who became known as a whistleblower, who leaked information disclosing global surveillance of the NSA, prompting a discussion across the globe regarding privacy and security – and leading him into a life in exile, currently on Russian soil.

Quis custodiet ipsos custodes? Who watches the watchers? In this case: who determines that the Intelligence Community does not step on the very citizens’ rights it is supposed to protect?

The secrecy surrounding intelligence agencies is such that they can easily escape democratic control, as the Snowden leaks showed. The checks and balances upon which modern democracies are founded somehow can be eluded by powerful agencies with little or no strict oversight.

One such example is the role of the Foreign Intelligence Surveillance Court (FISA Court) brought into prominence by the Snowden leaks, but already under criticism since 9/11. The function of FISA Court is to rule and supervise over the requests of surveillance made by intelligence agencies such as the NSA and the FBI of foreign individuals suspected of conspiring against the country.

However, the court secretly established important legislative precedents which enabled the NSA to collect vast amounts of data. The extent of the warrantless surveillance even led one of the FISA judges to resign. Labelled as a “fig leaf” and a simple “rubber stamp” by privacy advocates and legal experts, the FISA Court also operated outside the adversarial system which characterizes judicial bodies in Western democracies. In short, the Court could only hear arguments from the government side.

The arbitrary proactivism by the FISA Court may be framed in the broader discourse of “groupthink”. Social psychology teaches us that unchecked and ideologically homogenous institutions or groups are subject to extreme polarization, leading to cohesive outcomes at all costs and to the unscrupulous defence of any of the group’s actions. The FISA Court judges were unilaterally nominated by the Chief Justice of the Supreme Court, without any Congressional oversight. Moreover, 10 out of 11 of the judges at the time were Republicans.

The absence of any pressure or input from adversaries during hearings only reinforced the Court’s feeling of unaccountability and its pro-government bias. Snowden describes a similar mechanism taking place within the intelligence agencies: once you are officially part of the group, “all of a sudden you have not just the license but the obligation to lie, conceal, dissemble and dissimulate. This creates a sense of tribalism, which can lead many to believe that their primary allegiance is to the institution and not to the rule of law”.

It is Snowden’s very allegiance to the rule of law rather to the institution he worked for that led the whistleblower to reveal the extent of the mass surveillance operated by the US government. Snowden “hacked” the system by exposing the danger of allowing powerful institutions to work in the shadows; he disentangled from its own secrets the powerhouse consisting of the FISA Court and the NSA which operated out of any relevant public scrutiny.

The media have unanimously framed the moral question emerged after the Snowden leaks as a clash between security and privacy: two fundamental dimensions of our lives which are supposedly in eternal conflict with each other. But what if we considered the extreme secrecy of these institutions as yet another threat to our security? The integrity of a nation and its citizens can be threatened by internal foes as well as by foreign actors. This time, US citizens were lied to and spied on by their own government.

The function of whistleblowers is that of “fail-safes” of our political systems: they are conscientious individuals who act for the public good when those who were supposed to work in the public interest become the very threat they swore to destroy. In 2010, through WikiLeaks, Chelsea Manning leaked shocking videos of civilian massacres committed by the US Army in Iraq and Afghanistan. In 2015 Antoine Deltour exposed the striking extent of the tax breaks which were “legally” conceded to hundreds of multinationals right in the heart of Europe. In 2016, the activist under the pseudonym of John Doe leaked millions of documents, the so called Panama Papers, providing a concrete proof of the widespread use of tax havens by billionaires and world leaders. Snowden gave up a lavish salary and a secure job as a government contractor to expose the misdeeds of his government. They must all be acclaimed for their noble actions.

After calling for his execution in 2014, Trump recently announced that he would consider pardoning Edward Snowden. While it is still not clear what lies behind this unexpected stance, the US President might finally get something right: whistleblowers have the essential power to let the public watch the watchers. Snowden should be pardoned.