Another NSA whistleblower

About Executive Order 12333. “The order as used today threatens our democracy,” John Napier Tye wrote in the Washington Post:

John Napier Tye is speaking out to warn Americans about illegal spying. The former State Department official, who served in the Obama administration from 2011 to 2014, declared Friday that ongoing NSA surveillance abuses are taking place under the auspices of Executive Order 12333, which came into being in 1981, before the era of digital communications, but is being used to collect them promiscuously. Nye alleges that the Obama administration has been violating the Constitution with scant oversight from Congress or the judiciary.

“The order as used today threatens our democracy,” he wrote in The Washington Post. “I am coming forward because I think Americans deserve an honest answer to the simple question: What kind of data is the NSA collecting on millions, or hundreds of millions, of Americans?”

If you’ve paid casual attention to the Edward Snowden leaks and statements by national-security officials, you might be under the impression that the Obama administration is already on record denying that this sort of spying goes on. In fact, denials about NSA spying are almost always carefully worded to address activities under particular legal authorities, like Section 215 of the Patriot Act or Section 702 of the Foreign Intelligence Surveillance Act. An official will talk about what is or isn’t done “under this program,” eliding the fact that the NSA spies on Americans under numerous different programs, despite regularly claiming to be an exclusively foreign spy agency.

Executive Order 12333 is old news to national-security insiders and the journalists who cover them, but is largely unknown to the American public, in part because officials have a perverse institutional incentive to obscure its role. But some insiders are troubled by such affronts to representative democracy. A tiny subset screw up the courage to inform their fellow citizens.

Tye is but the latest surveillance whistleblower, though he took pains to distinguish himself from Snowden and his approach to dissent. “Before I left the State Department, I filed a complaint with the department’s inspector general, arguing that the current system of collection and storage of communications by U.S. persons under Executive Order 12333 violates the Fourth Amendment, which prohibits unreasonable searches and seizures,” Tye explained. “I have also brought my complaint to the House and Senate intelligence committees and to the inspector general of the NSA.”

These steps—which many say Snowden should’ve taken—produced no changes to the objectionable NSA spying and wouldn’t be garnering attention at all if not for Snowden’s leaks. It is nevertheless telling that another civil servant with deep establishment loyalties and every incentive to keep quiet felt compelled to speak out.