Edward Snowden is a Whistleblower

This piece originally ran at the ACSblog.

My American Civil Liberties Union colleagues and I have been extremely busy since the Guardian and the Washington Post published leaked classified documents exposing the scope of the government's secret interpretations of the Patriot Act and the 2008 amendments to the Foreign Intelligence Surveillance Act, which allow the FBI and NSA to spy on hundreds of millions of innocent Americans. We haven't written much about the alleged leaker of this information, Edward Snowden, however, mainly because we took his advice to focus on what the NSA and FBI were doing, rather than on what he did or didn't do. (See exceptions here and here).

But I did want to clear up a question that seems to keep coming up: whether Snowden is a whistleblower. It is actually not a hard question to answer. The Whistleblower Protection Act protects "any disclosure" that a covered employee reasonably believes evidences "any violation of any law, rule, or regulation," or "gross mismanagement, a gross waste of funds, and abuse of authority, or a substantial and specific danger to public health or safety."

In the two months since Snowden's alleged disclosures, no fewer than five lawsuits have been filed challenging the legality of the surveillance programs he exposed. The author of the Patriot Act, Rep. James Sensenbrenner (R-Wis.), called the scope of data collection revealed in one of the leaked Foreign Intelligence Surveillance Court orders "incredibly troubling," and "an overbroad interpretation of the Act" that "raise[s] questions about whether our constitutional rights are secure."

It doesn't end there. Over a dozen bills have been introduced in Congress to narrow these now public surveillance authorities and increase transparency regarding continuing programs. No one can know what was in Edward Snowden's mind, but clearly he could have had a reasonable belief the documents he leaked to the news media revealed government illegality and abuse of authority.

The disclosures also revealed that U.S. military officers and intelligence community officials have been less than truthful in their public comments and congressional testimony about the government's domestic surveillance practices, both in the scope of the programs and their effectiveness. Such false and misleading testimony threatens more than just Americans' privacy; it threatens democratic control of government.

Americans need and deserve truthful information about what the government is doing, particularly where the activity infringes on individual rights. As the father of the Constitution James Madison said, "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both." Denying Americans this knowledge through excessive and unnecessary secrecy, or worse, official deception, is unjustifiable and illegal. In a democracy, the law should never be secret.

The countless articles on the front pages of dozens of newspapers across the country since the documents leaked reveal the public thirst for this information. It is clear that these disclosures benefited the public, by giving victims of illegal surveillance – essentially all Americans – the knowledge and opportunity to challenge these unconstitutional programs, both in the courts and through their elected representatives in Congress. Even President Obama said he "welcomed this debate" and thought it was "healthy for our democracy." Yet a properly informed public debate on these programs would not have been possible without Snowden's leaks.

But the fact that the leaks served the public interest by exposing government illegality and abuse doesn't mean Snowden is protected by the law, because the intelligence community has always been exempted from the Whistleblower Protection Act. This fact refutes the other common misperception: that there are effective internal avenues for reporting illegal activities within the intelligence community.

Congress passed the Intelligence Community Whistleblower Protection Act in 1998, but it is no more than a trap. It establishes a procedure for internal reporting within the agencies and through the Inspector General to the congressional intelligence committees, but it provides no remedy for reprisals that occur as a result. Reporting internally through the ICWPA only identifies the whistleblowers, leaving them vulnerable to retaliation. The examples of former NSA official Thomas Drake, former House Intelligence Committee staffer Diane Roark and former CIA officer Sabrina De Sousa show too well.

This lack of protection means that when intelligence community employees and contractors – who take an oath to defend the Constitution – see government illegality they must turn the other way, or risk their careers and possibly even their freedom. The people we trust to protect our nation from foreign enemies deserve legal protection when they blow the whistle on wrongdoing within government.

Michael German is senior policy counsel at the ACLU's Washington Legislative Office and a former FBI agent.

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Anonymous

In addition to James Madison, remember Patrick Henry:

“The liberties of a people never were, nor ever will be, secure,
when the transactions of their rulers may be concealed from them.”

Patrick Henry

Anonymous

“The liberties of a people never were, nor ever will be, secure,
when the transactions of their rulers may be concealed from them.”
Patrick Henry

Anonymous

One thing that should be said over and over by ACLU and others, said especially in the public realm, is that each individual OWNS their metadata, and they own it because it is a record of what they do, who they know, etc, and even if there was not such a record they own what they do, because they own their own lives and what their lives do, and just because there is a record of that, and the record flows through a private company does not mean they do not completely own that record - before anyone else or any organization does - and in all but extreme cases it should only be able to be accessed and collected with a person's explicit permission at the time it is needed and not as part of a user-agreement in order to use a service or product. Thanks guys!

Anonymous

There is really no reason for the American public to get so worked up with the government monitoring their cellphones. If you don't have anything to hide then why should you care?

ACLUed up person

Thanks for the very clear, informative piece on the real issues.

Anonymous

I'm very glad to gain these insights into why Snowden had no protection, though clearly Congress (under the strong pro-military/intelligence lobbying) is unlikely to address this massively important hole in the public's right to know.

Dan Slaby

Snowden has done a snow job on ACLU in his whistleblower ruse to cover his act of espionage and disclosure of NSA operating processes to China and Russia, and who knows who else. Snowden is no different turncoat than Lee Harvey Oswald who went to Russia and came back as an assassin.

The real danger to privacy is the corporate collection of data.

Privacy is not a necessary or sufficient condition of liberty, nor is libertarian anonymity a right any more than espionage a protected human right.

Anonymous

Did you read the WPA? It only covers federal employees. Snowden was working for Booz Allen Hamilton. While you may think he fits the spirit of the law, he certainly does not fit the letter of it.

Anonymous

To the person that says "if you have nothing to hide why get so worked up about it?" My response is. Just because a mute can not speak does not mean they should give up their freedom of speech. It is something like the phrase "give someone an inch and they take a mile". If you let them take one right and they find out nobody really even cared they will take more, and more, and more until they are gone. This is put very simply of course. It is much more complex than a black and white argument.

Anonymous

We certainly need to push back in Federal courts. Let the them decide on this.

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