The White
House says that Edward Snowden should have reported his concerns within the
NSA, instead of revealing surveillance programs to the press. But who exactly
do US whistleblower laws protect?
Some eight
months before Edward Snowden leaked classified NSA programs to the press, US
President Barack Obama issued an order extending whistleblower protections to
employees of America's intelligence agencies. The White House often cites this
fact when addressing the three felony charges against Snowden, in total
carrying a maximum sentence of 30 years in prison. Two of those charges fall
under the 1917 US Espionage Act.
In his
January speech on NSA reform, President Obama said that he did not want to
"dwell on Mr. Snowden's actions or his motivations." But five months
earlier, the US commander-in-chief had already made clear that he did not view
the 30-year-old as a whistleblower or patriot, saying that Snowden had failed
to use official, non-public "proper channels" to express his concerns
about NSA surveillance.
But Snowden
has said that Obama's extension of whistleblower protections to the
intelligence community, under Presidential Policy Directive 19 (PPD-19), does
not cover government contractors. Before his disclosures, Snowden was an
employee of the company Booz Allen Hamilton, which contracted with the National
Security Agency.
"If I
had revealed what I knew about these unconstitutional but classified programs
to Congress, I could have been charged with a felony," Snowden said in a
live, online question and answer session last Thursday.
'Death by a
thousand cuts'
For years,
would-be whistleblowers in the US intelligence community had no legal
protections to shield them from retaliatory measures by their superiors. The
Whistleblower Protection Act of 1989 covered most of the federal government
with the glaring exception of the intelligence agencies.
In an
effort to close this legal gap, Congress passed the Intelligence Community
Whistleblower Protection Act (ICWPA) a decade later. The law covers employees
and contractors at the Central Intelligence Agency (CIA), the National Security
Agency (NSA), the Defense Intelligence Agency (DIA), the National Imagery and
Mapping Agency (NIMA) as well as the National Reconnaissance Office (NRO).
But
according to Thomas Drake, the act failed to adequately protect whistleblowers
from retaliation. A former senior executive at the NSA, Drake blew the whistle
on a failed surveillance program called Trailblazer. He used what the
government calls "proper channels" to express his concerns about the
program's exorbitant cost and its lack of privacy protections, reaching out to
his immediate supervisor, the office of the inspector general, and the
congressional intelligence committees.
"I was
reprised against severely within the proper channels," Drake told DW.
"I was identified as a troublemaker."
 |
Drake used "proper channels,"
but still faced retaliation |
Drake
called the NSA's response to his whistleblowing activities "death by a
thousand cuts administratively and bureaucratically," saying that the
agency found ways to change his job and cut his responsibilities. Ultimately,
the NSA re-organized the section he worked in, leaving him with nothing but a
"paper title." Drake resigned from the agency in 2008.
"There's
nothing within the act that actually protects you. I don't have cause of action
- I can't go to the courts for redress," he said, adding that his only
recourse was to file evidence with the Defense Department inspector general's
reprisal unit. According to Drake, the unit agreed that he had suffered from
reprisal, but the case still has not completely resolved itself.
Drake only
went public, contacting the Baltimore Sun newspaper, when he felt that the
proper channels had failed. The federal government indicted him under the US
Espionage Act for supposedly taking classified documents illegally, an
allegation that unraveled before the trial. In the end, the government dropped
the charges in exchange for Drake agreeing to plead guilty to one misdemeanor
count of misusing a NSA computer. He was sentenced to a year of probation and
240 hours of community service.
Murky legal
framework
Although
the ICWPA covered both employees and contractors, US whistleblower laws have
been changed through legislative and presidential action since the Drake case.
In 2012, Congress passed and President Obama signed the Whistleblower
Protection Enhancement Act. But the law excluded the intelligence agencies from
coverage.
Although
Obama had issued his directive that same year extending whistleblower
protections to the entire intelligence community, PPD-19 only covers
intelligence agency employees. Contractors, such as Edward Snowden, are not
explicitly protected by the directive. Even for legal experts, it's unclear how
exactly all of these different regulations interact with one another, and
whether or not contractors such as Edward Snowden are covered by the
whistleblower laws.
"No
one knows exactly how those pieces are supposed to fit together," William
C. Banks, an expert on national security law at Syracuse University College of
Law, told DW. "But I think the trump card is the criminal law. Regardless
of whether the contractor or a regular employee of a US agency is blowing the
whistle, if he or she is at the same time violating a criminal law of the
United States, the whistleblower protection is worthless."
Legal,
moral obligations
Mark Zaid,
an attorney in Washington, D.C., represents intelligence community
whistleblowers. Zaid doesn't make use of the whistleblower protection laws when
representing his clients, calling the provisions "inadequate."
Obama's presidential directive, for example, is largely discretionary and
doesn't actually guarantee whistleblowers protection. It only provides a
process by which their claims of suffering from retribution can be addressed.
Nevertheless,
Zaid said that Edward Snowden had a legal obligation to use the proper
channels, even if the protection laws were insufficient.
 |
It's murky, at best, whether or not a
contractor like Snowden was covered
the whistleblower laws |
"He
has a legal obligation to do so, and I think he has moral obligation to do so,
to at least try to work through the system, as futile as it might be, before
taking the last resort, which is to provide the information to third parties
without authorization," Zaid told DW.
But
according to NSA whistleblower Thomas Drake, the whistleblower system has been
corrupted from within, which discourages people from coming forward.
"The
reporting chains themselves largely serve to protect the institution from those
that would expose it, even from those within," Drake said.
"…Especially
when they see what happens to people like me, they will choose to remain
silent, they will ultimately censor themselves and not report the wrongdoing,
although they're in the best position to do so."
