Washington Post: How Do Whistleblower Advocates Deal with Edward Snowden’s Case?

By Joe Davidson

Edward Snowden poses critical questions for whistleblower advocates.

A former CIA employee and National Security Agency contractor, Snowden has admitted leaking secret documents to The Washington Post and Britain’s Guardian news organization. Much to the chagrin of U.S. officials, who have charged him under the Espionage Act, he fled Hong Kong after the Obama administration pressed Chinese officials to detain him.

Some members of Congress and Secretary of State John F. Kerry say Snowden has betrayed his country. Whistleblower advocates acknowledge that he might have committed a crime, yet they firmly identify Snowden as a whistleblower.

This presents a dilemma.

Whistleblower advocates have a long history of supporting federal employees and others who expose waste, fraud and abuse. They don’t encourage breaking the law. Yet, in Snowden’s case, they see two possible wrongdoers: Snowden, for revealing government secrets; and Uncle Sam, for the massive surveillance program Snowden exposed.

“There must be a strong prohibition against the government using its classification powers to classify a criminal action as ‘secret,’ ” said Stephen M. Kohn, executive director of the National Whistleblowers Center.

Advocates frame Snowden’s conduct in a context larger than his potential criminal liability. The Government Accountability Project (GAP), a whistleblower protection and advocacy organization, said that “his actions alone brought about the long-overdue national debate about the proper balance between privacy and civil liberties, on the one hand, and national security on the other. Charging Snowden with espionage is yet another effort to retaliate against those who criticize the overreach of U.S. intelligence agencies under this administration.”

Sen. Claire McCaskill (D-Mo.), a strong supporter of whistleblowers, has a different take. She “knows there’s a difference between someone who stumbles upon government wrongdoing and someone who knowingly commits a crime and violates our national security — and may even have set out to do so,” said Drew Pusateri, her spokesman.

Federal employee whistleblowers, generally, have certain protections against retaliation for exposing abuse. National security contractors have few, if any. But even if the protections available to others covered Snowden, how could he be afforded those protections if he has broken the law? The government’s retaliation would be his arrest and possible conviction on espionage charges.

“Mr. Snowden’s disclosures of the National Security Agency’s domestic surveillance are certainly whistleblowing, but releasing classified information is also against the law,” said Danielle Brian, executive director of the Project on Government Oversight. “As was the case with Daniel Ellsberg and the Pentagon Papers, sometimes it is so important to make the information public that it is necessary to break the law. . . . Whenever a whistleblower illegally discloses classified information, the public interest must be weighed against the harm to our national security.”

Ellsberg was charged under the Espionage Act but not convicted.

With all the fuss about Snowden as a fugitive, his disclosures about the massive collection of telephonic and electronic data of Americans and others by the government is not getting the attention it deserves, in the view of whistleblower advocates.

Because he apparently had a reasonable belief that the government was engaged in wrongdoing, “Edward Snowden is a legitimate whistleblower,” said Louis Clark, GAP’s president, who contends that “Snowden is the target of those who wish to sweep his assertions under the rug and turn the media spotlight on him instead. We believe the focus needs to be on the revelations and their implications. History will eventually be on Snowden’s side.”

Perhaps, but in the meantime the law is not.

For the advocates, Snowden’s actions draw attention to another issue facing national security whistleblowers and the public they seek to serve.

“The problem whistleblowers face [is] the ability of the government to over-classify information and thereby use the power of classification to stifle legitimate whistleblowing,” Kohn said. “An objective and fair declassification process must exist, to ensure that the government does not use its powers to hide wrongdoing.”

Government officials don’t consider Snowden a whistleblower, and certainly not one who used proper channels to express his concerns.

“There are procedures available for individuals like Edward Snowden to use if they believe they have uncovered wrongdoing, many of them advocated for by Senator McCaskill,” Pusateri said, “and Mr. Snowden took advantage of none of them.”

But the nongovernmental advocates say those procedures are woefully inadequate.

“Our current policies actually encourage leaks, given there is no meaningful legal system for whistleblowing in the intelligence community,” Brian said. “There are too few legal channels for disclosing secret wrongdoing, and those that exist do not provide authentic protections from retaliation. There are very weak protections for intelligence whistleblowers and none at all for intelligence contractors.

“As we’ve been saying for years,” she continued, “the way to stop leaks is to give whistleblowers strong protections and to curb over-classification. Instead, no matter who occupies the White House, we have a national security state on steroids engaging in far too much secrecy, making it harder for us to keep our legitimate secrets, conducting massive surveillance, and punishing rather than protecting whistleblowers.”