Whistleblowers in the surveillance state: Human rights’ digital background

[This content has not been independently verified. It was created from personal notes taken at the discussion on 4 August 2014.]

Host:  

Broadcaster Quentin Dempster.

Guests:  

US whistleblower Thomas Drake, a former senior executive of the US National Security Agency

Edward Snowden’s US defence attorney Jesselyn Radack .

 

“You have nothing to fear, if you have nothing to hide.” ~ Joseph Goebbels Minister of Propaganda

 

Quentin Dempster:

[Quentin commenced by reading from the New York Review of Books] Thomas you didn’t give any classified information to journalists did you?

Thomas Drake:

I did not.  I did give the journalist information in the public interest.

Quentin Dempster:

So what did you tell the journalist that was published in the Baltimore Sun?

Thomas Drake:

Well after making anonymous contact by encrypted means-knowing that the NSA had a wide drift net and mass surveillance program that also targeted lots and lots of journalists and reporters truth be told -I set some ground rules with her and the ground rules included not providing her with any classified information and that I not be a single source of any information I gave her.

Quentin Dempster:

How did the case fall over against you? Why did they withdraw?

Thomas Drake:

I think it was the weight of truth that collapsed the case. In the end the Government was unable to convince the judge in the pre-trial criminal proceedings that the charges against me, in terms of the documents they had, would actually hold up in a trial before a jury of my peers.

It is also critical to say it wasn’t just about what was going on inside the court room, in the end the media was my saving grace because it became national coverage.  It was certainly national coverage when I was charged so unceremoniously by the Department of Justice.

They were issuing all kinds of public affairs statements. They had briefings  at a senior level up to and including the head of the criminal division. You had a number of others, including the FBI weighing in about how bad I really was and that I had caused exceptionally great damage to the national security of the United States, which was patently untrue.

Quentin Dempster:

You were demonised?

Thomas Drake:

I was a traitor, turncoat, enemy of the state, disgruntled employee. That was part of the shoot the messenger, find ways to attack them personally.  Caricaturise them in a way that takes away from the message of whistleblowers actually consisted of. So you focus on the person and not on what they actually said or what they disclosed.

Quentin Dempster:

You wanted to go through upward referral through the NSA first. You raised with your superiors your evidence of fraud?

Thomas Drake:

There were three areas where I blew the whistle. This was right after 9/11. I was staring deep into the abyss of a Pandora’s box where the US, at the highest levels up to the White House, unchained themselves from the Constitution and they secretly approved a mass surveillance program still not fully revealed to this day despite all the Snowden disclosures.

I was early eyewitness to all of that and I confronted my boss. I went to the office of the Inspector General. I eventually became a material witness in several official investigations, including two 9/11 investigations.

There was also multibillion dollar fraud, it’s one of the big elephants in the room. 9/11 happens and so the NSA becomes too big to fail, but they weren’t too big to engage in very large contract vehicles and Congress is literally writing blank cheques as a response to the failure. So billions and billions of additional dollars were being poured into the NSA and they double-down on a flagship program called ‘Trailblazer’ which was already a multimillion dollar boondoggle and all that money was spent over a number of years and wasted.

Then the other area that I blew the whistle on-and this is an area where I spent a lot of time with Congressional investigators-because they were looking at why 9/11 happened: was there anything within the system, was there anything within the data that we knew that could’ve stopped it? The NSA chose to cover up what they knew. They discovered critical intelligence, critical reports, actual intelligence that, if it had been shared through the proper channels up to and including the President of the United States, it’s very possible that 9/11 would’ve been stopped.

Quentin Dempster:

Jesslyn, how did you become the legal representative of Edward Snowden and did Edward Snowden learn anything from the experience of others? He was a contractor with Booz Allen Hamilton, a contractor to the NSA, with a high security clearance.

Jesselyn Radack:

By the time Edward Snowden made his disclosures I had represented a number of employees who have unfortunately been investigated, indicted and/or prosecuted by the Obama Administration under the Espionage Act, which is a law meant to go after spies not whistleblowers.  So I had a reputation publicly which is how Snowden knew about me.  But Snowden also followed Thomas Drake’s case very closely and that of another client of mine named William Binney. Laura Poitras had done an Op-Doc on ‘Bill’ Binney and he had also followed the case of Chelsea Manning. So he took those as object lessons of what perils to avoid.

Quentin Dempster:

You didn’t advise him before he exposed himself with Laura Poitras and Glenn Greenwald?

Jesselyn Radack:

No.

Quentin Dempster:

You came on after the exposures in the Guardian?

Jesselyn Radack:

Yes.

Quentin Dempster:

Why did he decide to go public and identify himself as the source?

Jesselyn Radack:

Most whistleblowers blow the whistle anonymously so that people will focus on the message and not the messenger. But I think he knew it was a matter of time before he was going to be revealed by the Government and they would paint a caricature of him.  So he revealed himself in a way that he had control and predicted exactly what the Government would in fact say about him.  That he was a traitor and intended to hurt the United States citizens and help our enemies and paint him in the worse light possible.

Quentin Dempster:

But the key to it was that he was smart and he was aware of all that, and with the Guardian and the other media which took it up, you were all agreeably surprised that it got such a prominent consciousness raising run all around the world?

Jesselyn Radack:

It really did. The demonising didn’t work.  Part of that was because he helped frame the issue and he had two very sophisticated journalists helping him frame the issue. But also he had documentary evidence -which is something that a lot of the other whistleblowers who revealed similar conduct for example, Thomas revealing similar things in its embryonic stages- he had the documentation to back that up so that also gained more insight into him. Aswell as the fact that he was tech savvy in ways that appealed to a very large swathe of a younger generation of people.

Quentin Dempster:

Let’s look at the bureaucracy of what is now known as warrantless eavesdropping and ubiquitous surveillance that all these great souls have raised.  Take us through the Five Eyes, as they’re known, and the other associated nations that share information and surveillance with the NSA?

Thomas Drake:

Well the relationship between NSA, Canada, the United Kingdom, Australia and New Zealand goes back many, many decades. Post WWII an extraordinary relationship, a very secret relationship. It certainly has stood the test of time and has seen many Prime Ministers and Presidents come and go but the Five Eyes are doers.

It was a very large network of technologies and infrastructure that was designed to deal with the cold war period. Because of the advances in modern technology and communications it was able to surveil much of the world’s communication even before the arrival of the digital age.

After 9/11 that relationship was expanded.  In fact, I would argue that it became even closer. One of the mechanisms that they put into place, in years past, was called ‘Echelon’ and they took full advantage of all that they had in place to deal with the new threat. And because of the fact that much of the world’s communication-particularly the digital age was coming to the United States and/or involved the ability to look at all the main trunk lines, all the undersea cables where fibre optic was being laid-much of this transited across or was near or came through the Five Eyes nations. So it was greatly expanded in terms of the access to those types of data flows and those kinds of communication channels.

There were also a very large number of other third party countries, including Germany for example, in which these types of relationships were made-not quite as close- but very similar relationships depending on the country involved with their respective security services aswell.

Quentin Dempster:

In a counter-terrorism context you could understand closer cooperation but what we’re looking at here is warrantless eavesdropping. How is this legal?

Jesselyn Radack:

Well that’s the problem. The Courts have actually opined on this saying that it is not legal and likely unconstitutional because at least in the United States we have the Fourth Amendment that prohibits search and seizure unless you have probable cause to believe that a crime is committed.

Part of the problem with the mass dragnet  surveillance is that you have an intelligence apparatus spying on hundreds of millions of completely innocent people with no probable cause or even a reasonable suspicion that they’ve engaged in any wrong doing whatsoever.

Quentin Dempster:

We’re now in a world of the internet and instantaneous email globally through internet service providers and it’s understandable that intelligence agencies would want to collect as much data as possible to look at the traffic?

Jesselyn Radack:

To the extent that information is the currency of power you could make that argument but to the extent that your mission is to catch terrorists that proves not to be true, including by the White House Internal Review Panel which found that all of this mass dragnet surveillance did nothing to thwart any terrorist plot.

So the desire to scoop up all this information and gather it has more to do with power and population control then it does with fighting terrorism.

Thomas Drake:

I can tell you that the mantra was simply ‘we need the data’. I think in the fear and paranoia after 9/11 it is understandable because it was a failure and that the response was that we just need access to more information. What that turned into-because NSA aswell as the rest of the Five Eyes were all designed and optimised to collect information- that this was the Internet, ‘wow we get to pipeline this on an extraordinarily vast scale let’s just do it.’ Increasingly the mindset was just let’s go to wherever we need to go to find the data we need that we don’t know about.

Quentin Dempster:

Snowden in an interview has said that the NSA and its various other associates can surveil you as you are on your computer actually composing your emails.  Is that true?  What is XKeyscore?

Thomas Drake:

XKeyscore is a system that I was actually familiar with before even 9/11. It was greatly expanded after 9/11. It’s a way in which you can profile the data in which you are actually collecting. And so it can build this overtime. It actually gives you a measure in fact of how much you’re actually collecting and what you’re collecting.  It’s sort of like a dashboard as it were of the Internet channels and the Internet communications around the world.

Quentin Dempster:

Snowden said, “I, sitting at my desk, could wiretap anyone from you or your accountant, to a federal judge or even the president, if I had a personal email.” US officials vehemently denied that this was true. An official accused Snowden of lying adding that it was impossible for him to do what he was saying he could do but XKeyscore permits an analyst to do exactly what Snowden said?

Thomas Drake:

Yes and I mean this is kind of the great paradox of secret power. You have access to this sort of information, the temptation is simply not only collect it all but you at anytime can look into that data and say what do we know, what can we find out? Having said that, there are clear legitimate purposes of finding real threats. But geez you don’t have to wiretap the entire world on a warrantless basis to find a real threat.  In fact, if anything you obscure it.

Quentin Dempster:

Jesslyn, the great Internet companies Gmail, Apple, Skype, YouTube, Facebook, Yahoo, Microsoft were co-operative with the NSA?

Jesselyn Radack:

They were.  In fact they were double-dealing in so far as they were charging their user a fee to provide services and at the same time were charging the NSA to sell user data. I think their privacy policies have been strengthened by an order of magnitude since Snowden’s disclosures.

They had illusory privacy settings sometimes but that didn’t really matter because they had given a front door to NSA and for the things NSA didn’t have a front door to it created its own back doors.

Quentin Dempster:

President Obama has said don’t worry we’re not listening to your conversations, this is metadata, and metadata is only a monitoring of traffic and so don’t be too frightened about it.  Isn’t that the case? What can metadata do to expose you?

Thomas Drake:

Especially when you collect metadata on people it’s like email, it’s who you’re sending it to, who you’re receiving it from, time and date. With phonecalls it’s location, duration, extremely rich information about your digital life.

Metadata is really an index to your digital life. As you persist with the collection of that information over time you are going to learn an awful lot about an individual.  You’re going to learn about their habits, you’re going to learn a lot about who they’re communicating with, you’re going to learn an awful lot about their travels.

This is the richness of our modern society and so the amount of information that we can discover even at the high level without ever having to go into the actual content of the conversation or the content of the email is extraordinarily rich.

The US Government in secret decided that if this information resided with a business, it was a business record. That essentially meant that it was carte blanche, that they could actually get access to it through means that were essentially warrants, simply because they could.

They kept saying we don’t listen in, it’s actually a lie because increasingly in the digital age the metadata is the index of the content and it’s extraordinarily tempting when you have access to information of this type, especially when it’s broad based, to dip into the content aswell.

If you decide that you don’t like somebody or you want to monitor somebody or a whole range of people it’s all there to do so including the ability to mass translate phonecalls.

Quentin Dempster:

And there would be no supervisor over your shoulder saying ‘no don’t do that’?

Thomas Drake:

The culture is that everything essentially is suspicious so when you are addicted to this much data you’re going to take a look at it. Whether you do it by eyeball, whether you do it through ear sets/head phones or whether you let machine algorithms go through it.

Quentin Dempster:

Now Jesslyn because of this rich data the United States or the NSA has constructed a huge capacity facility in Utah. Tell us about that?

Jesselyn Radack:

That’s right. They’re in the process of constructing a Utah data storage facility that is approximately the size of three football fields. You can store probably my entire lifetime of data on something the size of my fingernail. Right now the storage facility is estimated to be able to contain 100 years worth of the world’s information.

Which seems funny perhaps but query what is the purpose of doing this, I mean normally we operate in democracies on the presumption of innocence until proven guilty. We don’t store a bunch of data and later trawl through if we think that someone might have done something wrong.

Your metadata tells everything about you. Most content is garbage in, garbage out, but metadata, if I call an abortion clinic, or I call a suicide prevention hotline, or I call Alcoholics Anonymous, you’d have a pretty good idea as to why I may be making those calls. So storing that data on people is a huge invasion of privacy that will outlive you.

Thomas Drake:

The other problem is the classic of I call up the local pizza shop for a delivery. That means if there’s a bad guy that has also called in for pizza that night that means that anybody and everybody who has called that same number becomes suspicious.  This is the philosophy here.  If that number is called, that means that there’s something else that we need to know about, that means that every other number that has called it gets swept up.

Quentin Dempster:

As part of the Five Eyes, the NSA would be surveilling  the Australian population?

Thomas Drake:

Not necessarily given the agreements that exist between the Five Eyes. There was a Gentlemen’s Agreement that we don’t spy on each other. However, having said that, if I’m the United States and I’m looking at Australia, an Australian is a foreign citizen with respect to the United States and if I have these secret agreements or sharing arrangements with the security service of Australia, guess what. Or if on behalf of, I want to spy on somebody in one of our countries it’s convenient to look to my friend to do so on my behalf without “violating my countries restrictions to do so.”

Quentin Dempster:

Any domestic surveillance will be done by our domestic agencies. We’ve got an issue here with Australian so-called jihadists wanting to go to the Middle East and be involved. Passports have been cancelled and various other things. They’d be full on surveillance of the traffic of both targeted and more general by ASIO?

Thomas Drake:

I would expect that ASIO, doing their job, would actually be monitoring those types of threats.

Jesselyn Radack:

That’s an appropriate use of surveillance to monitor people who are actually likely to or are planning to commit a crime.

Thomas Drake:

That’s targeted. There are threats locally, regionally and globally. Part of the irony here of course is that, I speak from the United States perspective, there are any number of incidents that have occurred  in which the system has “failed”. The Boston Marathon bombings, even though they were warnings and all the surveillance in place it certainly didn’t stop that, did it? That is just one example of any number of them. The other irony is that it just stands in stark relief to this continued defence of mass surveillance that somehow we need that to protect our country.  It’s a zero sum game, it’s an all or nothing proposition, but when the Edward Snowden disclosures were first coming out the claim was made that 54 terrorist incident plots or events had been stopped, blundered or prevented by virtue of mass surveillance. It turns out that maybe one, if one, may have been prevented by the mass surveillance programs. Even that was probably done through traditional law enforcement means.

Quentin Dempster:

Tip-offs from the public or observant members of the public?

Jesselyn Radack:

All of the airline debacles have been caught by very alert passengers as opposed to all of the airport security theatre surveillance you go through in the United States. I haven’t experienced the level of security theatre here in Australia, and I commend you for that, but certainly the indignities that you go through in the US have very little to do with actually catching people.

Quentin Dempster:

Let’s talk about encryption because I’ve been reading Glenn Greenwald’s book about Verizon and PRISM. It’s a very good book and it goes to the overheads on their tactics and the powers of the NSA. This issue of encryption, won’t that save us if we want to have privacy, we can get encryption programs can’t we?

Jesselyn Radack:

I think that is one way people are fighting back is by using encryption because mass domestic surveillance and international surveillance has no carve out or no protection or exception for attorneys communicating with clients or doctors communicating with patients or for accountants communicating with their clients or journalists with their sources. So encryption I think is a way that a lot of people are now taking precautions against this. I know Edward Snowden has said publicly that to the extent that the law lags behind and reform efforts are taking a while, if they don’t effectively take care of this technology will. We see that right now going on with encryption and the fact that a lot of newsrooms around the world are implementing SecureDrop as a way of sources contacting them safely and a number of journalists I know and lawyers I know and I myself use encryption now and consider it irresponsible not to. I cannot do my job without…

Quentin Dempster:

It’s awful that we’ve got to go to encryption isn’t it?

Jesselyn Radack:

I agree. I feel like I’m using drug dealer tactics. I meet in person. I pay in cash. I use burner phones. I feel like I’m on the wire or something. It’s kind of a throwback to the underground parking garage days and the days of deep throat and it is absurd that we have to go to such measures but until there are some limits on what the Government can do I think it’s better to be safe than sorry. And I represent a lot of people in the sorry category who’ve been caught and are being overly prosecuted by the Government.

Quentin Dempster:

Does encryption work?

Thomas Drake:

No. There are some exceptions to that. I mean exceptions in terms of some kinds of encryption are weak they’re older systems but the math, having worked with ‘Bill’ Binney who was one of NSA’s premier crypto-mathematicians,  as long as it’s implemented correctly, as long as it’s installed correctly, as long as you take other prudent defence measures then you do have a reasonable expectation that you can protect your communications.

Quentin Dempster:

It’s worked in banking hasn’t it?

Thomas Drake:

It’s interesting that you bring that up because if encryption didn’t matter then why bother having any of this when you do any of your transactions with the bank or why bother having encryption when you slide your credit card through one of the readers. There is a reasonable expectation that that information is protected and that it is not accessible. Of course we’ve had a number of incidences where this type of information has gotten broken into by others for nefarious purposes. So this type of protection is reasonable in modern society.  Isn’t it reasonable that if I’m an individual and I’m communicating something sensitive with somebody else I just don’t want anybody reading it? The problem is in a surveillance mindset if you’re using encryption you must be hiding something by virtue of using it. In fact NSA’s philosophy is that if you are using encryption that gives them grounds to keep whatever communication that is coming from you essentially permanently. Hoping for the day when maybe they can decrypt it.

Quentin Dempster:

In Australia we are in a Westminster parliamentary democracy and the secrecy for national security has been around since post war.  As journalists we’ve been concerned about the tough approach around privacy because sometimes the malfeasing and corrupt can hide behind privacy. What are the philosophical roots of privacy ? Why do we have to have privacy?

Jesselyn Radack:

The human right behind privacy is your own sovereignty your own self.  If you don’t believe in privacy why don’t you come and give me the keys to your house and your car and your passwords, bring them on up right now. You trust me I’m a very trustworthy person right.  How many people out there are willing to do that? If the answer is no, then why not? Because it’s personal, it’s privacy, it’s part of your individual autonomy and your own individual sovereignty which supposedly we value more than anything in a free and open democratic society.  The people are supposed to govern the government not the other way round.

Quentin Dempster:

Thomas, what do you say about privacy that goes beyond all the other manipulations that we understand and the context in which we understand them in the context of national security?

Thomas Drake:

This is particularly poignant for me and personal for me given what I experienced because the government wanted to take everything that I was as an autonomous sovereign human being away from me as punishment for having stood up. I stood up and took an oath to defend the Constitution.

Does it matter? Yes.  If you go back to words of the Declaration of Independence, we broke free from the British empire right and the Crown and King George, that there were certain inalienable rights that we all have and among those are life, liberty and the pursuit of happiness. That’s fundamental to who we are. Privacy is implied and was really enshrined in the Bill of Rights and the Fourth Amendment.

We had Justice Brandeis who said basically we have a right to be left alone. That’s a very powerful argument he made. If you don’t have the right to be left alone, if a citizen cannot protect themselves and be protected against the government then we fall back to a period in history where we’re not citizens we’re basically subjects to or subjects of the State. I don’t think we really want to go there. But somehow there’s a carve out in this post  9/11 national security world that we don’t have an expectation of privacy, ‘we’ll make that determination on your behalf.’

Quentin Dempster:

That’s the psychodynamics in a post 9/11 world. In Australia we’ve had the Bali bombings which was devastating to the psyche of Australia when it was an act of terrorism in a nearby country, there hasn’t been an act of terrorism on Australian soil but I fear that if there was one the same dynamic that has affected the United States would affect here. So you guys standing up for privacy in the context of national security, needing to defend the physical well being of the American people, is a  very hard ask because you’re almost against the flow. Do you feel that?

Jesselyn Radack:

Often it feels like an upstream battle but I do think the balance is starting to tip the other way in the United States as people realise what the NSA has done. It does feel like an uphill battle sometimes but I think that people realise, as Benjamin Franklin said-one of our founding fathers- “those who would forsake liberty for privacy deserve neither” and other founders have said if I had to choose between a free press or a free government I would pick a free press. So I think that there’s some really amazing  forethought, you know if you go back and look at the founding documents upon which our nation is built, they would counsel in favour of privacy.

Quentin Dempster:

The criminalising of journalism. Thomas you went to a journalist, the journalist wasn’t charged?

Thomas Drake:

No, but there was a point during my pre-trial criminal proceedings where the prosecutor actually threatened to bring the reporter into court. That reporter had to ‘lawyer-up’ to the max just in the event that that would happen. This is criminalising journalism.  This is meaning that if the journalist publishes information that the Government decides is too sensitive or is embarrassing them or is revealing wrong-doing or illegality.

Quentin Dempster:

You were indicating earlier when we spoke that the prosecuting authorities had learnt something from your case that was Risen?

Thomas Drake:

Right. I was really the first espionage case since Daniel Ellsberg and the Pentagon papers fame 40 years earlier.  It is clear that the Government lost the case against me but it wasn’t going to give up.  One of the best investigative journalists the United States has is James Risen of the New York Times. In another whistleblower case they decided that he-in order for them to pursue their case-was the only eyewitness to a crime because he received information from  the whistleblower and it was all to be published in a book called the ‘State of War’. So they went one step even further which was not only could they bring a reporter, or threaten to bring a reporter into the courtroom, but in this case they actually subpoenaed the reporter. In order for them to make the case in court, the only eye-witness to the crime committed by the source is the journalist. So practicing investigative journalism and aggressive journalism, reporting on this huge boondoggle of an operation (Operation Merlin) by the CIA in Iran where they actually ended up providing real nuclear secrets to Iran as a sting operation, embarrassing the CIA, they were hellbent on going after the reporter. So criminalising the practice of journalism.

In the James Risen case they said he was engaged in conspiracy to commit a crime. They actually had a warrant which allowed them to go in and look in his phone calls and his emails.

Jesselyn Radack :

James Risen faces quite a dilemma right now because shortly he will be forced to either testify against his source, go to gaol, or pay a stiff penalty of about $5000.00 per day. It’s a constitutional crisis moment.

Quentin Dempster:

Where’s the First Amendment?

Jesselyn Radack:

That’s a very good question. The freedom of the press and freedom of association and freedom of speech in the United States has taken a significant blow in post 9/11 America. Right now the First Amendment, for example in Tom’s case, we were specifically prohibited from mentioning the words: First Amendment, whistleblower, newspapers, public interest.

That’s why Snowden can’t get a fair trial right now if he comes back and faces an espionage charge, there is no public interest defence. Your motive is completely irrelevant whether you were out to sell secrets to enemies for profit or to give documents back to your own fellow citizens so that they can make an informed decision about what the Government was doing behind their backs and in secret.  So the First Amendment has taken quite a blow and is at the heart of this debate that we’re having.

Quentin Dempster:

It is also very relevant in Australia because the Federal Government, Senator Brandis the Attorney-General, is moving to the National Security Legislation Amendment which at 35P if a journalist-or third parties- receives classified information it would be a criminal offence with 5-10 years imprisonment. So we’ve got a problem in Australia with the criminalising of journalism.

[The explanatory memorandum to the bill said the offence applied to “disclosures by any person, including participants in an SIO [special intelligence operation], other persons to whom information about an SIO has been communicated in an official capacity, and persons who are the recipients of an unauthorised disclosure of information, should they engage in any subsequent disclosure.]

Thomas Drake:

Also criminal penalties, if you’re an employee of ASIO for example, and you bring forth information then you are also criminalised. It also basically absolves the security services of any liability, civil or criminal, in the event that they are caught doing something wrong.

So there’s this huge cut out.  Increasingly that secret side of government is increasingly given licence to do whatever it needs to in the name of national security.

Quentin Dempster:

Let me challenge you, they can do this because the public wants to feel protected and if you’ve got nothing to hide there’s nothing to worry about? There’s support for national security, even aggressive national security tactics, to keep us safe?

Thomas Drake:

Well I heard that after 9/11 from General Michael Hayden, the then General Director of NSA, “we just have to make Americans feel safe again.” Not be safe, just feel safe.

Quentin Dempster:

You’re saying that even the vastness of surveillance it hasn’t been proved to thwart terrorist plots.

Jesselyn Radack:

Well that’s been the conclusion, you don’t have to take my word for it, the Privacy & Civil Liberties Oversight Board appointed by the President, the President’s own hand-picked internal review panel, a federal judge and even the Director of NSA have all admitted that all of this surveillance has failed to stop a single terrorist plot.  Possibly it may have thwarted one which could have been thwarted through human intelligence and other traditional law enforcement  means.

So we have all this surveillance and it’s really getting us nothing. If you’re looking for a needle in a haystack, why would you want to make the haystack bigger? I submit that you’re making the haystack bigger out of other nefarious reasons like control and power and that that has very little to do with actually keeping people safe.

Thomas Drake:

Let’s be honest here. Surveillance is a growth industry. There are any number of people and companies making very large amounts of money. I would argue that it is one of the largest transfers of wealth that we’ve ever seen in human history and it really begs the question, is this really where we want to go in the world? Where do we want our democracy to go? This whole thing about the ends justifies the means, means that we are going to essentially continue to grant licence to the Government to continue to expand these powers in secret and it’s off-limits to questioning and if you question it, reveal it, talk about it or share it you’re liable. Given this incredibly draconian language you’re liable to be criminally sanctioned and may end up spending many, many years in prison. And if you don’t it’s simply going to send a really chilling message: think twice before you say anything, think twice before you talk about any of this.

Quentin Dempster:

Summing up Jesslyn, Edward Snowden’s contribution?

Jesselyn Radack:

I think it’s still occurring every day. His desire was to start and spark a worldwide debate which has occurred and still is occurring every single day in papers around the world.  Again I think this is a long distance run and not a sprint and these disclosures are continuing to come out and we’re continuing to debate and talk about them as we’re doing tonight which is not against the law and should not be penalised criminally but essentially would be by a lot of this new legislation because for example, if a publisher or someone called a newspaper with a story about ASIO illegality and that journalist discussed it with his/her editor or with a producer, just that alone could subject the journalist to a criminal penalty of 10 years in prison for each revelation or exposure much less publishing it.

Quentin Dempster:

Can’t resourceful journalists get around it by getting it published in another jurisdiction?

Jesselyn Radack:

That’s a creative way of getting around it. Currently no one knows where the Intercept, where Glenn Greenwald is publishing out of, so it would pose a jurisdictional question to go after him aswell as a Constitutional one to the extent that he is an American. I think journalists would have to resort to creative ways to evade laws like this but I think, as a priority issue, we shouldn’t have laws like this and we shouldn’t have journalists taking all sorts of ballet steps to try and encrypt and have to do all of this stuff to try and do their jobs nor should I as an attorney have to be engaging in all these extra measures just to try and function and represent my client.

Quentin Dempster:

Thomas you’ve praised journalism and  you’ve said that it was your saving grace, but you’ve also seen some bad journalism haven’t you?

Thomas Drake:

Yes, I’ve seen journalists who are stenographers for the Government. They parrot the party line the elite line. In some forms they are actually complicit with the Government by going after people who have revealed clear wrong doing. It’s important to know that I’m here on stage with you, free in Australia sharing all this with you, and yet I’m the only person who was investigated and indicted for surveillance, which had nothing to do with surveillance, but what  I did do was reveal it.

John Kiriakou  revealed that the United States had a sponsored torture program and yet he’s in prison right now because they put extraordinary pressure on him and he couldn’t face many, many decades in prison himself.

The Government does not have to in essence have a policeman on every corner, they don’t, because the nature of modern technology they can do an awful lot of this behind the scenes. It’s essentially virtualised…You have other people in the United States who under the Computer Fraud & Abuse Act who are charged with these crimes because they’re revealing information in the public interest.

These are really chilling examples if you look at the truth-tellers, the whistleblowers, the hacktivists, we’re really the canaries in the coalmine of democracy.  Do you really want to go down this path?…Do we really want to live in this kind of society? I read George Orwell growing up, I don’t want to be Winston in the corner because that’s the only place the surveillance cameras couldn’t see me, that they knew where he was.  I don’t want to live like that.  I lived for many, many years under the boot of the surveillance state. I had the FBI in parked cars at the end of my street knowing when I was leaving and knowing when I returned, they followed me around, they even told me that during my cooperative period with them. I don’t want to live in that kind of society.

Somehow it’s a zero-sum game because of a few terrorists out there. I really find the arguments to be really pathological that we’re willing to sacrifice so much. The fear is a controlling thing right. Compare the number of people killed by terrorists with the number of people who actually die on Australian roads every year. Are we now going to declare a war on roads? Worse, the terrorists actually use the roads to travel around and we don’t know it yet, so let’s block everybody from using the roads. I don’t think we’re going to do that.

Why then does National Security get such a huge cut out that somehow they’re exempt from due process or exempt from oversight or exempt from public interest and if you dare question them or dare reveal anything about them, guess what, we’re going to hang you, or worse, we’re going to criminalise you.

End of discussion. Questions followed.

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