Sterling writes: "It may have been Mr. Gladwell's intention to contemplate the merits of acceptable whistleblowing vis-a-vis Daniel Ellsberg and Edward Snowden, but that is not the article's end result. He is explaining and attempting to justify a system of governance. Lost in his unabashed blandishment is consideration of the illegitimacy and illegality of that system."



Whistleblowers Daniel Ellsberg and Edward Snowden. (photo: Ole Von Uexkull/Facebook/John Cusack)

Of Scarecrows and Whistleblowers

By Jeffrey Sterling, Reader Supported News

find myself doing a lot of reading in prison of late, and one article in particular caught my attention. It speaks to many issues that are indicative of my being in prison. The article is “The Outside Man” and in it, Malcolm Gladwell muses over the differences between Daniel Ellsberg and Edward Snowden. From my “inside” perspective, the distinctions Mr. Gladwell makes and the justifications for doing so are troubling. Mr. Gladwell’s perspective espouses a form of “good government” that the Bard warns against in typical Shakespearean eloquence and ageless wisdom:

“We must not make a scarecrow of the law,

Setting it up to fear the birds of prey,

And let it keep one shape, till custom make it

Their perch and not their terror.”

It may have been Mr. Gladwell’s intention to contemplate the merits of acceptable whistleblowing vis-a-vis Daniel Ellsberg and Edward Snowden, but that is not the article’s end result. He is explaining and attempting to justify a system of governance. Lost in his unabashed blandishment is consideration of the illegitimacy and illegality of that system.

Mr. Gladwell painstakingly points out the differences between Daniel Ellsberg, whom he christens as the “archetypical modern whistleblower” and Edward Snowden, whom he characterizes, disparately, as a ne’er-do-well hacker. Status is an overriding determinant for Mr. Gladwell:

“… the man [Ellsberg] who defined the modern category of whistle-blower was the sort who gave career advice to Henry Kissinger. Ellsberg was an insider – and that fact puts him in stark contrast with the man who has come to be seen as his heir, Edward Snowden.”

He further delineates the insider/outsider distinction by pointing out that Ellsberg was:

“handsome and charismatic. He had served in the Marine Corps as a company commander in Korea.... a studious political science Ph.D....”

While Snowden is characterized as:

“a community college dropout, a member of the murky hacking counterculture.... a technician who helped service the computer systems ... a graduate student, who realizes, with great disappointment, that his thesis adviser has not kept up with the literature.”

And for good measure, as someone who hasn’t seen “Dr. Strangelove” as Ellsberg has.

The distinctions made by Mr. Gladwell are steeped in elitist class bias and absolutely necessary to justify what he calls a “ritual that obliges its participants to play by certain rules.” And it is this ritual that epitomizes the illegitimacy of Mr. Gladwell’s benevolence towards Daniel Ellsberg and demonization of Edward Snowden.

The ritual is the source/beneficiary symbiosis whereby the government (the source) leaks “carefully curated” information to the press (the beneficiary). Mr. Gladwell refers to Columbia Law Professor David Pozen to define the importance of this ritual as:

“... a form of governmental ‘self binding’... using periodic disclosure... to justify to the public the extraordinary power it wields... [and] maintain its power.”

Mr. Gladwell sees this ritual as an essential aspect, not necessarily of government, but by government for legitimacy, as long as the “certain rules” are observed by both source and beneficiary.

“... a common understanding among participants, a degree of discretion and judgment. You need to have laws against leaking – and occasionally enforce them … You can’t over-enforce those laws, though ... The press, meanwhile, has to preserve the ambiguity of plants, in order to preserve its access to leaks. And the press [must not] discredit the institution of leaking, by airing disclosures too damaging to the national interest ...”

What Mr. Gladwell lauds, with the postulates of Professor Pozen, is a smoke-filled room sort of governance which is above the law and designed to manipulate the public by encouraging, if not mandating, breaking the law for the sole purpose of maintaining power. That this system and its ritual are patently illegitimate is evident in Mr. Gladwell’s need to use Daniel Ellsberg as sort of distorted poster child to garner legitimacy. In fact, Mr. Gladwell does a disservice to Daniel Ellsberg, Edward Snowden, and whistleblowing by either associating or disavowing them within a ritual that is an affront to them all.

Mr. Gladwell is correct in calling Daniel Ellsberg a prime example of the modern whistleblower. However he is incorrect in applying whistleblowing as ushered in by Daniel Ellsberg to his ritual of leaking. Jim Naureckas, in his counter to Mr. Gladwell, points out Daniel Ellsberg’s reasoning for his act:

“The only thing that I could personally hope to achieve by my own efforts was to make these documents available to the American public for them to read and to learn from ...”

Daniel Ellsberg’s were the actions of a man who had the public interest in mind, not the maintenance of power through manipulation. Daniel Ellsberg’s actions and intentions were those of a whistleblower. Herein lies a difficulty in Mr. Gladwell’s viewpoint: he sees no difference between leaking and whistleblowing. Therefore, Daniel Ellsberg will fit nicely into the ritual. However leaks, plants, and whistleblowing are not interchangeable terms of art.

Mr. Gladwell’s ritual is centered on, as Professor Pozen explains, information leaked “with the full authorization of the White House.” What can be considered more “insider” than that which is blessed, if not encouraged, by the highest level of government? Such information-peddling is nothing more than a plant, a tidy bit of propaganda to serve as little more than a symbolic ray of sunshine upon government merely to assuage the public. Mr. Gladwell attempts to distinguish between leaks and plants by stating that leaks are unauthorized and tolerated in order to “water” or add some hint of credibility to the plants which are authorized. By his own argument, then, there really can be no distinction. The ritual is one of plants whether deemed authorized or not; they both serve the overall purpose to manipulate the public (and the law) to garner support for those in power, whether warranted or not. In contrast, whistleblowers do not undertake the tremendous risk they do out of any motivation to “build support” for the very issue and governmental activity of concern. They are spurred by a desire to bring accountability to power, not create it. The interest of a whistleblower, as embodied in Daniel Ellsberg’s own words, is an informed public; that of a plant or leak is a manipulated public. It can and should be argued that Edward Snowden shared the same motivation as Daniel Ellsberg, as a whistleblower; neither should therefore be associated with Mr. Gladwell’s ritual.

Another critical aspect that adds to the fallacy of Mr. Gladwell’s ritual is enforcement of the law, or lack thereof. While one of the ritual rules acknowledges the need for law against leaking, they are not to be “over-enforced.” This rule is explicit – that for the ritual to function as intended, the willing participation of law enforcement (specifically the Department of Justice) is required. Professor Pozen points to the fact that even with:

“... the recent uptick in leak prosecutions during the Obama Administration ... the degree of underenforcement is stunning.”

Mr. Gladwell emphasizes the duplicity of law enforcement by pointing out that administrations are indeed able to find leakers because “information – particularly secretive information – has a pedigree.” So the reason there are not more leak prosecutions is because the ritual requires administrations to play by the rules and look the other way. What is troubling for me is that I have been condemned to prison as a result of that so-called stunningly under-enforced enforcement. To Mr. Gladwell, and most likely Professor Pozen, my prosecution represented the ritual in action: that instance of occasional enforcement lending credibility to a woefully illegitimate system. Instead of serving as a shining example of the ritual at work (or the penultimate success of the Obama administration’s campaign against whistleblowers), the prosecution and imprisonment of an innocent man should serve as a warning of the real dangers of a ritual viewed as crucial to good government.

Professor Pozen’s miniscule numbers for leak prosecutions are misleading. Given the need for law enforcement’s participation, those numbers necessarily reflect enforcement only when it comes to those participating in and benefiting from this ritual, insiders. I hazard to guess that the enforcement numbers against outsiders is much higher. The contrast in enforcement between those of the ritual and those outside of it is what is stunning.

When it comes to those not considered worthy enough to be part of the ritual, enforcement is swift and devastating. Mr. Gladwell fails to address a common aspect that both insiders and outsiders are bound by, the secrecy agreement, where disparate enforcement of the law is most obvious.

Kevin Shipp details how whistleblowers face an unrelenting system of destruction, noting that:

“US government intelligence agencies have perfected a complex, sequential system to systematically silence or destroy an employee, including his or her family, who attempts to reveal illegal or unconstitutional activities conducted as part of secret government operations.”

This system of destruction is not limited to the in-house actions that relevant agencies are able to take against whistleblowers. The ritual necessarily requires the participation of other government entities:

“When the employee attempts to blow the whistle to the Congressional committees, their response is ignored. It is made clear to committee members that they are not to touch such cases ... If the employee contacts a member of the news media, they are immediately cited with violating their secrecy agreement and criminal penalties are filed against them. Several news media outlets are connected to the CIA and NSA and notify them of the employee’s contact.”

This is the self-protectionist ritual at work. Its effectiveness and cohesion – though not necessarily coordinated by as much as understood by those in government who benefit by the rules being followed – is impressive. Shipp points out that the employee (or public for that matter) is:

“... not fully aware of all that is being done. The full scope of the system is only known at the higher levels of the organization and is hidden from employees, until its use necessary.”

And when a whistleblower comes forward, not a leaker or plant, is when it is necessary.

The participants of Mr. Gladwell’s ritual do not face such enthusiastic enforcement of the law. In fact, he refers to the enforcement against Daniel Ellsberg as a “farcical denouement.” From the standpoint of the whistleblower, there is nothing farcical about the ritual striking out to protect itself. I don’t think Daniel Ellsberg thought the very real actions against him by the Nixon administration were farcical and I am sure whistleblowers like John Kiriakou, Thomas Drake, Chelsea Manning, and the other “occasional enforcements” by the Obama administration view their experiences as not so whimsical. And I can’t imagine Edward Snowden having a laugh about his situation.

To the acceptable or traditional ritual participants, it certainly is a farce. When it comes to leaks or plants of the proper sort, the government does indeed look the other way. Mr. Gladwell uses CIA drone strikes against Yemen as an authorized plant but he fails to mention any denouement farcical or otherwise to that release of classified information that did not come from an official news conference. His farcical denouement is also epitomized with the Obama administration’s plant related to the classified STUXNET Operation. The “occasional enforcement” chose General Cartwright (known as Obama’s favorite general) as the focus of what can only be characterized as a true farcical denouement. General Cartwright, in what gave the appearance of a very cordial, almost apologetic investigation and prosecution, pleaded to a watered-down felony for lying to the FBI. Indeed, a sweetheart deal to play the sacrificial, ritual lamb. I can remember seeing the news from the prison TV room about his plea and possible (emphasis on “possible” because every newscast I heard speculated that there would most likely be no prison for General Cartwright) prison sentence and feeling dismayed. There would be no charges for disclosing classified information; his disclosure was an “authorized” plant and as such the ritual required any denouement to be farcical, mainly at least giving the appearance of enforcement. And that is exactly the end result when on January 17, 2017, then-President Obama pardoned General Cartwright. The ritual protects its own. General Cartwright will face none of the real perils true whistleblowers do; he won’t see a day in prison for doing far more than an average whistleblower; he will retain his rank, pension and status in government. There can be no better example of the ritual in action. I can’t help but be struck by the fact that the overall subject connecting me and General Cartwright is Iran. But the differences more than explain the disparate treatment between the two of us: I am not an insider as General Cartwright is, therefore I am not entitled to the same “mercy” from the highest level of government, and more importantly, I am innocent.

What’s more, having law enforcement play such a crucial role in the ritual allows such farcical denouements to become commonplace for insiders whether their actions are part of the ritual or not. Mr. Gladwell’s ritual is the same system that turns the other way or engages in similar farcical denouements when insiders blatantly disregard their sworn obligation to secrecy for personal convenience or gain. Such has been the case with Hillary Clinton and General David Petraeus. No outsider has received such unjustified favorable treatment, which has amounted to little more than officially sanctioned chastisement with eventual forgiveness. I got the impression that Mr. Gladwell imagines that Daniel Ellsberg was, or at least should have been, treated like an insider, and Edward Snowden relegated to the treatment afforded his worth. That worth of course being determined by the ritual.

What is particularly disturbing is that Mr. Gladwell is using Daniel Ellsberg to lend credibility to the one aspect of the ritual that should be the most abhorred by it: the press. But not just any press; Mr. Gladwell makes it clear that only the elite press or establishment journalism is allowed to participate. After all, Daniel Ellsberg reached out to The New York Times, which Mr. Gladwell considers “the most august institution in American journalism.” Mr. Gladwell proudly acknowledges the willing and the duplicitous participation of the press:

“When I worked [at] the Washington Post, my colleagues and I would read a front-page story by our counterparts at the Times and invariably know where the leak ... came from. The first order of business was typically to call the leaker and complain that he or she was playing favorites.”

Notice Mr. Gladwell makes no assertions as to the veracity of the press’s role; concern is solely focused on abiding by the rules and preserving the ritual. Of course, the press, particularly establishment journalism, has every reason to be a willing participant; there is little risk and it is a guarantee of access to government.

My trial provided a rare opportunity to realize just how intertwined the press is in the ritual. That the “august” or establishment press is merely an appendage of government, and particularly the ritual, came from the words of one who was at the highest level of government. During my trial, a former National Security Adviser to the George W. Bush administration, Condoleezza Rice, testified under oath that it was routine practice, in reaction to a story of concern, for the White House to call in reporters and their editors to either delay, kill, or “correct” the story in question. Ms. Rice was describing the ritual in action: the source/beneficiary symbiosis that Mr. Gladwell describes.

Furthermore, when it became apparent the government was planning on forcing a journalist to reveal his sources, the establishment press was up in arms. Clearly, exposing the press to such a risk was counter to the ritual rules. There was such anxiety among the press that during the years-long interlocutory appeal, the case was no longer US vs. Jeffrey Sterling, it was dubbed the “Jim Risen” case. There was absolutely no concern for whether I was innocent or not; I was not part of the ritual and my prosecution threatened to disrupt the sanctity of it. Forcing the press to reveal sources presents a problem for the ritual because, as Mr. Gladwell notes:

“When the origin of the disclosure is uncertain, all parties save face.”

Calm, however, was restored when, even though the appellate court ruled that the press can be compelled to reveal sources, the government decided not to do so (a decision which, by the way, was leaked). Order was restored to the ritual.

The system that Mr. Gladwell has participated in, and is a proponent of, is not as he believes a ritual of “good government,” it is an elitist cabal of self-serving manipulation, and he fails in his attempt to grant it credibility by associating it with Daniel Ellsberg. Mr. Gladwell is engaging in nothing more than character assassination directed at Edward Snowden, not unlike the many other detractors who find it more expedient to focus on the messenger than the message. What is unique about Mr. Gladwell’s article is that in denouncing Edward Snowden he pulls the curtain back on a system and ritual that necessarily fears Snowden and what he represents – an informed public. The ritual is the thing for Mr. Gladwell, and neither does Edward Snowden fit within nor Daniel Ellsberg lend credibility to it. It is a ritual which has become the custom to those in established power, designed to manipulate the law and public trust. Mr. Gladwell’s ritual does indeed make a scarecrow of both (the law and the public) and everyone knows that scarecrows are set up to protect the plants.

The Obama administration was adept at utilizing and protecting the ritual, as demonstrated by the witch-hunt against whistleblowing that spanned his entire presidential tenure and was crowned by the pardon for General Cartwright. It has yet to be seen whether the Trump administration will be as ritual-enthusiastic. I imagine that Mr. Gladwell is anxiously wondering the same thing.

Jeffrey Sterling, a former CIA case officer, is currently serving a 3 1/2-year prison sentence for leaking classified information to a New York Times reporter. His forthcoming book will be published by Nation Books.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.