TORTURE: ASIAN AND GLOBAL PERSPECTIVES | JUNE 2014
VOLUME 03 NUMBER 03


“International asylum law supports Snowden”, says a former ethics adviser to the United States Department of Justice who came to prominence as a whistleblower Jesselyn Radack in an exclusive interview with Torture magazine. While commenting on importance of privacy, Radak says . “In a democracy, the people should know more about government than the government knows about people.”

Jesselyn Radack is the national security and human rights director of the Government Accountability Project, which represents whistleblowers. Jesselyn Radack recently communicated with Natalie Yeung.

NATALIE Yeung (NY) : What is the difference between a whistle-blower and a ‘leaker’? What role does a whistle-blower have? What do you think when whistle-blowers are being referred to as traitors?

Jesselyn Radack (JR) : Whistleblowing has a public interest value. Determining who is a whistleblower depends on the substance of the disclosure. A whistleblowing disclosure reveals a gross fraud, waste, abuse of power, mismanagement, violation of law rule or regulation, or a danger to health and public safety. A “leak” – such as revealing CIA operative Valerie Plame’s name to retaliate against her husband, Ambassador Joe Wilson – reveals no misconduct and is often done for political reasons. Calling a whistleblower a “traitor” is a transparent attempt to deflect from the whistleblower’s message, and an all too typical a response from powerful institutions who want to avoid accountability.

NY: What do you think about the significance of information leaked by whistle-blowers? What change do they bring?

JR: Whistleblowers provide an invaluable public service and bring accountability to countless government agencies and corporations. Especially in areas – like the intelligence community – plague by too much secrecy and too little oversight, the public needs whistleblowers to hold wrongdoers accountable.

NY: How was your experience being a whistle- blower?

JR: It’s a tremendous strain to have the entire weight of the federal government come down on you, and it was surprising to find out the lengths to which the government would go to punish me. For example, I was put on the “selectee” portion of the No-Fly list and the government interfered with my non-government employment. A whistleblower needs tremendous support from lawyers, advocates and in personal life, which I was lucky enough to have.

NY: How well do you think the US constitution protects privacy and personal liberty?

JR: The U.S. Constitution embodies strong protections for privacy and liberty. Unfortunately, since 9/11, many U.S. government agencies have abandoned the constitutional principles under the guise of protecting national security.

NY: Comparing privacy and personal liberty, which element do you think is more crucial? Do you think loss of privacy is a way that one loses personal liberty?

JR: Yes, privacy and personal liberty are inextricably intertwined. In a surveillance state, people may appear “free” but if the government is spying on the population, the people lose liberty and the right to privacy – the right to be left alone. Illegal surveillance violates the Fourth Amendment’s protection against unreasonable searches and seizures, and chills the freedoms of speech, the press and association.

NY: How is privacy important and how can it be derived?

JR: In a democracy, the people should know more about government than the government knows about people. The essence of privacy is the right to be free from unnecessary government interference.

NY: With technological advancement it is much easier to obtain information, how can one secure own privacy and personal liberty?

JR: Using encryption is a good start. Participating in the surveillance reform process and supporting efforts to reign in the NSA’s mass surveillance operations, which make the internet less secure for everyone, would also contribute to greater individual privacy.

NY: Are there any specific policies or laws that protect whistle-blowers in the US; are current laws sufficient in protecting human rights from torture and surveillance?

JR: There are laws that protect whistleblowers, but many of the laws have national security exceptions so they are not sufficient in their current form. There have been recent advances, but the new laws are far from ideal – they are just baby steps – and it remains to be seen if the new laws will be implemented and operated in a way that actually protects whistleblowers.

NY: Do you consider there is correlation between hacktivists and whistle-blowers?

JR: Absolutely, both are concerned with freedoms of speech and association and often both are vilified and retaliated against for exercising those rights.

NY: What could be the solutions to current situations on deprivations of personal liberty in name of espionage and intelligence gathering related to changes of technologies since 911?

JR: Rolling back the NSA’s ability to undermine individual privacy protections like encryption and righting the U.S. intelligence community’s focus on legitimate targets rather than conducting mass surveillance on entire populations.

NY: What do you think of the immunity that secret agencies enjoys? Is it compatible with the constitution? Is the current system replying too much on the president’s decision?

JR: Generally, sovereign immunity is a long-standing constitutional principle in the US. However, the Executive branch should not use secrecy and national security to shut down legitimate lawsuits challenging surveillance and torture or use secrecy to hide wrongdoing or embarrassment. Since 9/11, many courts and members of Congress afforded the Executive branch too much deference in the arena of national security – particularly with regard to surveillance – but in the wake of Edward Snowden’s revelations, we are finally seeing some movement toward accountability.

NY: How does the secret agencies work when they collect information through surveillance? With existence of FBI and CIA, do you think it is possible to have the NSA abolished? Who to decide what information that the public should or should not know?

JR: The inner workings of difference collection programs and who gets to see that information are complicated and still plagued by too much secrecy. The CIA and NSA are supposed to be operating overseas and the FBI operates largely domestically, so there is – in theory – a function for all of the agencies. But since 9/11, we’ve seen the agencies move away from their traditional roles. The FBI has become focused on intelligence gathering rather than criminal investigation; the CIA has become focused on military operations rather than intelligence gathering; and the NSA has focused on mass surveillance and domestic surveillance rather than
targeted foreign surveillance. As far as what information should be secret, the Executive Order on classification lays out very clearly what the legitimate secrets are, but those legitimate government secrets have been undermined by massive over-classification.

NY: What challenges are Snowden likely to face, given that his permission of staying in Russia will soon expire? According to the UN high commissioner for human rights, Navi Pillay, ‘those who disclose human rights violations should be protected:we need them.’ How do you think can Snowden be protected in current situations? Are there any international laws that aid with Snowden’s situation?

JR: International asylum law supports Snowden. He still qualifies for asylum because he has a valid fear of persecution from the U.S. based on his political beliefs and speech.

Natalie Yeung currently studies Law in University of Warwick with interests in promotion of protection and awareness of human rights issues and international conflicts. She is an intern in Asian Human Rights Commission.