Edward Snowden: Whistle-blowing protections most likely won't help

While Edward Snowden, the former NSA contractor, and others portray him as a heroic whistle-blower, his decision to make top secret documents public severely limits his legal protections, analysts say.

Whether Edward Snowden is a “traitor,” as House Speaker John Boehner called him, or a whistle-blower trying to prevent his country’s descent into “turnkey tyranny,” as he claimed in an interview, is simultaneously a legal and a moral question – and the answers may not overlap in this case, legal experts say.

The bottom line: The former NSA contractor, who disclosed details of top-secret US surveillance operations, could achieve the moral status of a whistle-blower and still serve many years in prison, the experts say, primarily because there are no whistle-blower protections for publicly divulging classified information.

Over the years, federal employees turned whistle-blowers have at times won recognition and even a financial bonus for revealing misdeeds ranging from defense-cost overruns, questionable drug approvals, and nuclear plant problems to illegal contracts and corrupt regulators.

Yet they emerge into a mixed-message and often-hostile legal environment. On the one hand, a half-century-old congressional code of ethics requires those working for the government to “expose corruption wherever discovered.” On the other, doing so can result in being demoted, fired, or harassed.

Federal whistle-blower protection statutes offer few solid protections and quite often lead to the loss of a cherished career and huge legal costs, studies show. At the end of a torturous pathway, vindication may follow. Or not.

Set against this backdrop, Mr. Snowden’s self-stated motives might seem to place him among the angels, whistle-blower advocates say. He has come out publicly, rather than merely leak documents anonymously. He has claimed in a video interview no venal motives either to harm US security or enrich himself by selling documents to America’s enemies. Instead, he says, he seeks to help the public by exposing US surveillance programs that, in his and some others’ views, may vastly overreach the laws that set them in motion.

"I'm just another guy who sits there day to day in the office, watches what's happening and goes, 'This is something that's not our place to decide, the public needs to decide whether these programs and policies are right or wrong,' ” he told a reporter for the Guardian newspaper of London. “And I'm willing to go on the record to defend the authenticity of [top-secret surveillance program documents] and say, 'I didn't change these; I didn't modify the story. This is the truth; this is what's happening. You should decide whether we need to be doing this.' "

But even if Snowden, and perhaps thousands who have petitioned the White House on his behalf, consider him a whistle-blower and hero, his release of top secret documents obtained while he was a contractor for the National Security Agency could still lead to many years in federal prison, experts say.

Snowden may meet the moral definition of a whistle-blower, and he could still fall well short of the legal definition and end up in court, not unlike Daniel Ellsberg, who leaked the Pentagon Papers, a top secret study of US decision-making in the Vietnam war, even sympathetic legal experts say.

“On one level, Snowden quite clearly meets the legal test required to be considered a whistle-blower,” says Jesselyn Radack, the National Security & Human Rights director for the Government Accountability Project (GAP), a national whistle-blower protection and advocacy organization based in Washington.

“What he has revealed evidences illegality of the highest order with a number of federal laws being blatantly violated,” she says. “Neither the Patriot Act or the Foreign Intelligence Surveillance Act allows blanket dragnet surveillance of communications between Americans suspected of doing nothing wrong.”

But while most federal workers fall under the Whistleblower Protection Act of 1989 (WPA), Ms. Radack and others agree his status as a national-security employee actually shifts him to the Intelligence Community Whistleblower Protection Act (ICWPA), a law with far fewer protections.

The ICWPA “is toothless and creates bureaucratic procedures that makes blowing the whistle an exercise in futility. It also fails to provide substantive protections against retaliatory personnel action and creates no mechanism for corrective actions,” GAP argued in an amicus brief filed in the US Court of Appeals, Second Circuit in December.

In fact, the tightly-tailored ICWPA provides for national-security whistle-blowers to release classified information they think is evidence of illegality only to two groups – an inspector general for a federal agency, such as the NSA – or a member of one of the congressional intelligence committees. He may also report an “urgent concern,” defined as a serious or flagrant problem, abuse, or violation of law, the brief says.

In this case, however, Snowden has gone public – rather than through an inspector general or Congress – releasing top secret documents to newspaper reporters in possible violation of the federal Espionage Act.

That’s a serious problem for him legally, says Stephen Vladeck, associate professor at American University’s Washington College of Law and an expert on the ICWPA. In a 2008 legal analysis, he wrote that based on recent legal precedent, there is no legal whistle-blower protection for disclosing classified information.

The Espionage Act includes a sweeping prohibition against revealing classified national security information “to any person not entitled to receive it,” he wrote. Because of this, it appears there can never be a “legal” public disclosure of classified national security information under the Espionage Act, he concludes.

But another factor putting distance between Snowden and other whistle-blowers is that the documents he leaked to the Guardian and Washington Post are not necessarily clear-cut evidence of illegality. The documents may persuade Radack and others of that, but President Obama and Sen. Diane Feinstein (D) of California say the NSA programs created under the Foreign Intelligence Surveillance Act and Patriot Act that permit such surveillance were approved by Congress and are programs overseen by its committees.

“If Snowden were revealing details on some patently illegal government program – torture or something like that – well there’s no question that he would then fall more comfortably under the statutory definition of a whistleblower,” says Professor Vladeck in an interview.

“You still have the problem in the law of who he can report to,” he continues. “But I think there’s also a blind spot in the whistle-blower laws when it comes to programs that are controversial, but not per se unlawful. We don’t yet know enough about the programs to make that judgment.”

Given that existing whistle-blower laws are tailored so tightly, Snowden faces, at best, a steep uphill battle to stay out of federal prison should he return to the US for trial, Vladeck and other legal experts say.

“The danger is that once someone comes out and declares themselves, it still doesn’t mean they are an instant hero or patriot – there still needs to be an evaluation of whether they’ve got good grounds for violating their secrecy agreement with the government,” says Rahul Sagar, an assistant professor of politics at Princeton University and author of “Secrets and Leaks: the Dilemma of State Secrecy,” a forthcoming book examining the moral and legal tension between executive power, national security, secrecy, and whistle-blowing.

Along those lines, Snowden’s leaks have already had a major impact, triggering vigorous public and congressional debate over the legality and value of NSA surveillance programs that have scooped the phone data of millions of US residents. Though NSA officials tout the programs as having been vital to preventing numerous terrorist attacks, they are now under new pressure to declassify materials that would prove those claims are true.

Yet because there is apparent legal backing for the surveillance programs – at least so far, “Snowden is further out on a ledge than whistle-blowers that fit the classic definition,” Vladeck says.

Snowden is not the first former NSA employee to have declared the government was conducting overbroad data collection against ordinary Americans.

Thomas Drake, a former NSA senior program manager, is one of several former NSA workers who have been through the wringer of trying to blow the whistle on alleged agency abuses. In his case, it involved a surveillance program called Trailblazer that he, too, thought was an abuse of Americans’ privacy. So in 2006 he contacted a reporter for the Baltimore Sun.

But in 2007, he was confronted by federal agents at his home. Ultimately he was acquitted of the 10 federal charges brought against him, including espionage charges. As part of a plea bargain, he pleaded guilty to an unrelated misdemeanor charge of exceeding authorized use of a computer. Unlike Snowden, he was careful never to hand over classified documents or other secret information – only unclassified information – or he might be in prison today, he says. [Editor's note: The original version of this story said Drake was acquitted of 11 federal charges.]

“I had hoped that my own case would inspire others to come forward and expose the inner sanctum of this vast leviathan surveillance state,” Mr. Drake says in an interview. “There are more parallels than differences here. I was an eyewitness at the very beginning of the nation-state secret surveillance program when it all began. I knew in those first few weeks, if I didn’t speak up or do something I would be accessory to a crime or subverting the constitution.”

Snowden’s plight as he sits, somewhere in Hong Kong, trying to figure out whether to fight if the US extradites him on espionage charges, is hardly enviable, he says. Though Drake says he wishes Snowden well, he would not advise him to return to face the US legal system – having himself spent years and many thousands of dollars trying to clear his name.

“None of what Snowden has revealed is surprising to me,” he says. “When you look at what’s been disclosed so far. And I think there’s a lot more to come.”