Before his interview with VICE News, former State Department employee and newly minted whistleblower John Napier Tye tells us he needs to find someone else to sit in on our scheduled phone call.
Tye says his “policy” when speaking to reporters is to have another person present who will bear witness to his comments. It’s for Tye's protection; to ensure he has backup if a reporter misquotes him or if he’s accused of saying something he shouldn’t have said.
About 15 minutes pass before Tye emails to say that he has found a former colleague at the State Department who has agreed to listen in on the call. Then Tye, who says he still holds a top-secret clearance, lays down some ground rules for VICE News.
“I’m not going to tell you any classified information; even stuff that’s been on the front page of the Washington Post,” he says. “If you hear something that sounds like I am talking about classified activities or NSA activities, I want to tell you right now you misheard what I said, and you should ask me for a clarification because that’s not what I am going to be talking about.”
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Tye’s position is understandable — the Obama administration has aggressively prosecuted an unprecedented number of whistleblowers under the Espionage Act. But attempts by the administration to plug leaks in the year since Edward Snowden turned over highly classified NSA surveillance documents to journalists have only led transparency advocates to urge other would-be whistleblowers to disclose more about the government’s covert — and allegedly unlawful — activities.
Tye was a Rhodes Scholar and has a law degree from Yale University. He previously worked as an investigative reporter writing about hate groups for the Southern Poverty Law Center. And he says he made a conscious decision to do the exact opposite of what Snowden did.
'If Snowden went to the NSA inspector general to complain about the programs like John Tye did, we already know what would have happened. It would have been a dead end.'
Before the 38-year-old resigned in April, he was the section chief for internet freedom in the State Department’s Bureau of Democracy, Human Rights, and Labor. In that capacity, he sometimes traveled abroad and advocated for the open use of the internet, free from government interference and monitoring. Tye said he “interacted with the NSA several times over the last year,” dealing with "two or three different issues."
But he won't talk about those interactions or issues.
Tye’s Washington, DC–based attorney, Mark Zaid, a fierce critic of Snowden who believes the former NSA contractor’s leaks have likely put intelligence officers in harm's way, tells VICE News that Tye was in a unique position: not a member of the intelligence community, but in possession of “authorized access” to classified information “regarding NSA programs.”
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“In order for him to do his job and to convey to other countries about internet freedom issues, he needed to have a baseline knowledge [about NSA programs],” Zaid says. “There was an NSA liaison to State who would give him classified briefings about things he had to know as he traveled around the world.”
Earlier this year, Tye says, he became very concerned about the manner in which Americans’ communications were being collected and stored under a Reagan-era executive order. Officially EO 12333, it's referred to as twelve-triple-three in national security circles. Twelve-triple-three provides the nation’s 17 intelligence agencies with broad powers to conduct overseas surveillance. And Tye says its loopholes are being exploited.
“Even after all of the revelations over the last year about US intelligence practices, there’s still a very big untold story about widespread constitutional violations,” Tye says. “People don’t understand what’s happening under twelve-triple-three…. As used today, [it] threatens our democracy.”
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Tye believes intelligence collection and storage under twelve-triple-three should be of even greater concern to Americans than the bulk metadata collection program that takes place within the US under Section 215 of the Patriot Act — it at least has oversight mechanisms in place. Twelve-triple-three has no such protections for the collection and storage of Americans’ communications taking place on foreign soil.
“Executive Order 12333 contains nothing to prevent the NSA from collecting and storing all such communications — content as well as metadata — provided that such collection occurs outside the United States in the course of a lawful foreign intelligence investigation,” Tye wrote in a July 18 op-ed published in the Washington Post. “No warrant or court approval is required, and such collection never need be reported to Congress…. The executive order does not require the NSA to notify or obtain consent of a company before collecting its users’ data.”
'The NSA does not exert any policy restriction on publications by former employees. Mr. Tye is a private citizen.'
The purpose of Tye’s op-ed was to spark a debate about the extent of US spying — the same debate Snowden wished to trigger through his leaks. Tye had to go through a pre-publication review by the State Department and the NSA to ensure the op-ed did not contain classified information. Zaid said the process took about three weeks; he was ready to sue the government if the agencies held up publication or forced Tye to withhold material.
But that wasn't necessary. “They didn’t redact a damn thing,” Zaid says.
A State Department official told VICE News that the department would not “discuss or confirm the specifics of [Tye’s] op-ed piece.” The official would only confirm that Tye worked at the State Department as a foreign affairs officer from January 2011 until April “when he left to take a position outside of government.”
Tye's op-ed “was reviewed to ensure that the article did not contain classified information,” the official said. “We do not exert any policy restriction on publications by former employees. Mr. Tye is a private citizen.”
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Although Zaid says Tye “didn’t want to be an Edward Snowden,” he concedes that the process for blowing the whistle was “probably” easier for Tye because of Snowden’s revelations.
Before Tye spoke out, Snowden too had raised red flags about twelve-triple-three. Specifically, “indefensible collection activities — such as breaking into the back-haul communications of major US internet companies [that] are sometimes concealed under EO 12333 to avoid Congressional reporting requirements and regulations.”
Unlike Snowden, Tye will not offer up any examples of actual unlawful surveillance he learned about while working at the State Department. He’s honoring his secrecy agreements.
Zaid emphasizes that Tye was “given authorized classified access to twelve-triple-three activities that the public didn’t know about.” And Tye underscores to VICE News he has “direct knowledge of activities that I believe are serious constitutional violations.”
It’ a radically different approach to whistleblowing that, in the age of Snowden and Chelsea Manning — the Army private who turned over hundreds of thousands of classified documents to Wikileaks — the public is not used to seeing from someone who wants to expose government wrongdoing. Tye is essentially issuing a direct challenge to the intelligence community, the administration, and lawmakers like Senator Dianne Feinstein, the chairwoman of the Senate Select Committee on Intelligence, whose staff Tye recently met with to discuss his concerns about twelve-triple-three. (David Grannis, staff director of the Senate Intelligence Committee, declined to discuss Tye's meeting with VICE News.)
Feinstein has said that Snowden could have and should have come to her with evidence of the agency’s mass surveillance of Americans instead of handing over a trove of highly classified documents to journalists.
“I chose a different path than Edward Snowden for raising my concerns,” Tye tells us. “All along, the government has said that Snowden had numerous internal opportunities to… work through the system to raise his concerns. I have worked through the system with my concerns. If the government means what it says, this is a chance for the government to come clean about just what it’s collecting and storing on the American people and show that the legal whistleblower system actually works.”
* * *
Tye says he was exposed to what he believes were “unconstitutional activities” after the Guardian and Washington Post first published Snowden-supplied details about the NSA’s controversial surveillance programs.
“After the disclosures last year, there was a lot of international interest in US intelligence practices,” Tye explains. “There were resolutions both in New York and Geneva concerning rights to privacy under international treaties. In order to properly negotiate those resolutions we had to understand what current practice was.
"So we, the diplomats, were talking to the intelligence community at that time about our interpretation of our treaty obligations. Some people at the State Department got a more intimate look at US intelligence practices. That’s when I learned about certain intelligence practices I believe were unconstitutional.”
'There is no system for whistleblowers in this country to raise their concerns or disclose wrongdoing.'
Tye began to work through “proper channels” after President Barack Obama failed to mention any changes to twelve-triple-three during a January 17 speech about “reforms” to NSA surveillance programs. Tye had decided to apply for jobs outside of government. He then contacted Zaid, a veteran whistleblower attorney.
Zaid says he and Tye took steps to set the process in motion in order to demonstrate that Tye worked within the system. Tye complained to his supervisors. Then he went to the House and Senate Intelligence Committees, who were “very supportive,” he and Zaid now say. Tye then filed formal complaints with internal watchdogs at the State Department and NSA “who were receptive.”
Tye says he recently received a letter from the House Intelligence Committee acknowledging his complaint — but the committee didn’t indicate whether it would address it. Zaid doesn’t expect it to.
“The meeting with the [Senate Intelligence Committee] was a very back-and-forth discussion,” Zaid says. “But I don’t see them doing much of anything. My sense is they knew all of this and more. And I did not feel they were concerned.”
Tye, perhaps naively, is confident changes will be made; he would like to “see a public response to my complaint that describes what changes have been made.”
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So what does Tye think about Snowden? Is he a whistleblower or a traitor?
“I think that reasonable people can disagree about how he did what he did,” Tye says. “Some people say this needed to happen. Other people say he broke the law and should be prosecuted. Even the president has acknowledged what Snowden has started and that what he disclosed has sparked an important public debate.”
Though Zaid says he doesn't doubt Snowden's motives, he's less equivocal.
“What bothers me so much about Snowden is that he has no idea of the consequences that could befall his individually decided actions,” he says. "It doesn’t help when some 29-year-old defense contractor who has no life experience decides on his own this is what is good for our country without even trying to involve more experienced people. I could have brought a variety of litigation on his behalf, or even better on behalf of a member of Congress, using his knowledge even in an unclassified manner while preserving his anonymity, at least at the outset.”
Ex-CIA officer Sabrina De Sousa, a former client of Zaid's who spent nearly a decade trying to go through proper channels to expose the wrongful rendition and torture of a radical Muslim cleric — actions for which she says she was scapegoated — has her doubts.
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“Based on my experience, there is no system for whistleblowers in this country to raise their concerns or disclose wrongdoing," De Sousa tells VICE News. "Absolutely none…. A collaborative process exists between all agencies to cover up abuses."
Jesselyn Radack, a member of Snowden’s legal team who represents NSA whistleblower Thomas Drake and is herself a whistleblower, points out that Snowden also went through “proper channels” and had raised concerns in internal emails to NSA officials, which the NSA claims it has no record of.
“If Snowden went to the NSA inspector general to complain about the programs like John Tye did, we already know what would have happened,” Radack says. “They would have explained his interpretation was wrong. It would have been a dead end.”
In fact, that’s what the NSA suggested about Tye’s concerns concerning the unlawfulness of twelve-triple-three.
In a statement provided to VICE News, NSA spokeswoman Vanee Vines said, “Whether NSA's activities are conducted under EO 12333 or the Foreign Intelligence Surveillance Act, NSA applies Attorney General–approved processes to protect the privacy of US persons in the collection, retention, and use of foreign intelligence."
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Radack predicts “absolutely nothing will come” of Tye’s disclosures.
“I think he did the right thing going through proper channels, and I think Snowden did the right thing,” she says. “If Tye were able to illustrate [the unlawful use of twelve-triple-three], it would have more staying power. I’m not bashing his decision. I hope the government leaves him alone.”
On one hand, Tye says he’s not at all worried about retaliation, because he’s not discussing classified information. However, when our interview began, he also said he “needs to be careful because I’m obviously a target.”
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Zaid says what Radack and other “Snowden defenders don’t understand” is that Tye’s Washington Post op-ed was intended to be the “initial salvo."
“This is something Obama can solve with a stroke of his pen,” says Tye, who volunteered for both of Obama’s presidential campaigns. “It’s something he could do tomorrow if he wanted. All he needs to do is to amend the executive order to adopt the recommendation of his own [NSA] review group, and that recommendation is to immediately delete US person data if it is incidentally collected overseas. When Obama engages the American people on this, he will agree this is a serious constitutional problem and it needs to change.”
Follow Jason Leopold on Twitter: @JasonLeopold