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What Makes a Whistleblower?

Edward Snowden's actions brought him accusations of treason, and a life of exile.
Edward Snowden USA today

As has been well documented, there are a lot of folks out there who do not like Edward Snowden very much, some of whom are prepared to do something about him up to and including his summary execution. It would be simplistic to suggest that everyone so inclined is motivated by selfish interests such as concern that a lack of support for certain government programs will lead to a loss of employment and income, but job security certainly might play a role in some cases. Others might well be irritated by the possibility that certain national security positions will be disdained by the public, just as the Transportation Security Agency is regularly lampooned currently.

I personally think that at least some of those government employees who hate Snowden despise him because they actually believe that he is a traitor to the United States, that he revealed secrets that should have stayed hidden, and that his activity will diminish American national security. Some governmental critics of Snowden are almost certainly particularly incensed because he was an “insider,” an employee who went rogue and violated his pledge not to disclose classified information to those who are not permitted access to it. His crime is therefore much more grievous than that of a journalist whose job it is to expose secrets because a key part of Snowden’s job was to protect them.

Having had to sign nondisclosure agreements a number of times, I appreciate that most employees take the commitment seriously. Those who believe otherwise, that classifying information frequently is a way to avoid accountability and even to hide criminal behavior, often also think that those who reveal such information should not be punished and should be protected under existing whistleblower legislation. But that in turn raises the question of what exactly is a whistleblower.

The Whistleblower Protection Act, originally passed in 1989, is actually quite broad in its definition of what makes someone a government whistleblower and therein lies much of the problem because a good deal is subject to interpretation. It also deliberately excludes whole categories of government employees in the areas of security and national defense. The original act, which was “enhanced” by Congress in 2012 and additionally by presidential directive later in the year, blocked retaliation directed against some federal employees who revealed a crime, a failure to abide by rules and regulations, corruption, gross mismanagement, waste of government money, an abuse of authority, or a significant and identifiable danger to public health or safety.

The protection mechanism is complex, including a special counsel and two boards, but an overwhelming percentage (over 90 percent) of employees who believe they have been treated badly and appeal the process are turned down, meaning that the actual protection can sometimes appear to be more notional than real. Where revealing certain types of information is specifically forbidden by laws on the books, courts have ruled that it is not considered whistleblowing. Holders of security clearances can, for example, have their clearances revoked, which is career ending, without any effective redress. Congressional staffers constitute a large group with significant potential access to wrongdoers but they cannot whistleblow at all.

Currently the Supreme Court is hearing the case of Robert MacLean, an Air Marshal, who was fired after alerting the public to a 2003 Transportation Security Agency decision to save money by canceling Air Marshal assignments on long-haul flights that would require hotel stays. McLean regarded the move as damaging to public safety so he went to his boss, who told him to keep quiet, and to the department’s inspector general, who responded similarly. McLean leaked the information to a reporter for MSNBC and his Supreme Court case rests on the TSA having only guidelines regarding the sharing of information without any specific statute to back it up. If there had been a law against exposing TSA decisions MacLean would have had no case.

Whistleblower protection has also been undermined by the judiciary whenever the restricted information that has been revealed lacks specificity or is subjective in nature. The government might have plausibly argued in the MacLean case that the desirability of having Air Marshals on planes is a judgment call as it does not in fact necessarily make travel more secure, but for obvious reasons it chose not to do so. The fact is that most federal government employees who consider themselves to be whistleblowers are de facto or even de jure punished for their actions and few are protected. Sibel Edmonds, who among other things revealed high level corruption in the U.S. government, was fired from her job and had two gag orders put in place against her using the State Secrets Privilege to prevent her from revealing what she knew. Frustrated, she eventually did go public in an American Conservative interview in 2009.

The lack of protection for federal government whistleblowers is coupled with an understandable unwillingness to submit oneself to the criminal justice system. I hear repeatedly from former colleagues in the national security world that while Edward Snowden may have been justified in exposing the secret NSA spying program he should have limited himself to only enough information to make his case and, after moving the information to a safe location, he should have turned himself in to face the consequences. Snowden in fact took an estimated 1.7 million documents many of which had nothing to with the NSA program and then fled to China, which many still regard as an enemy of the United States in what was undoubtedly a bad public relations move. He then flew to Russia on his way to Ecuador but his U.S. passport was revoked to prevent onward travel and he remains in Moscow to this day. He would have been much better advised to go to Quito or Sao Paulo in the first place.

Snowden has stated that he is willing to return to the United States for trial if he can be guaranteed a prompt and open hearing similar to that which was afforded to whistleblower Daniel Ellsberg of Pentagon Papers fame. Ellsberg was tried in 1971 and was prepared to go to prison but avoided conviction after gross government malfeasance was demonstrated relating to the investigation preceding the trial. Snowden, who claims that he made efforts to speak with his NSA superiors before he took action, might be a bit disingenuous in his professed willingness to return home to face the music but the issue is currently moot in any event as the U.S. government has refused to cut any special deals and is insisting that it would try Snowden under the Espionage Act of 1917 which permits numerous prosecutorial shortcuts. And Snowden is right to be concerned. The handling of U.S. citizen and terrorist suspect Jose Padilla as an “enemy combatant” suggests that a little extracurricular meting out of justice might well be expected if Snowden were to surrender himself into custody. Padilla, whose actual crimes remain vague to this day, was so harshly abused in prison that it made him incompetent to stand trial. More recently, Pvt. Bradley Manning was convicted of espionage and sentenced to 35 years confinement after being held for more than three years in a military stockade.

The Manning case is not unlike the Snowden case in that the theft of classified information lacked specificity, i.e., Manning could not claim that he was addressing a specific act of illegality as he downloaded and shared an enormous dump of frequently raw classified information. Nor can Snowden make that claim in spite of the fact that his theft was much more focused since he also took so much additional material with him. That essentially means that Snowden is undeniably guilty under the Espionage Act, that he knows it, and that he might well be merely asking for some decency in the process to argue his case and salvage his reputation, which the government is clearly not inclined to guarantee. A show trial over government spying on U.S. citizens would not be welcomed by either a Democratic or Republican administration.

So even if Snowden were a completely legitimate whistleblower who perfectly fits the legal definition of what a whistleblower should and should not do, he cannot necessarily expect either fair treatment or justice. But the genie is out of the bottle. An increasing number of Americans now believe that the federal government cannot be relied upon to tell the truth. Renewed war fervor over the atrocities being committed by ISIS should not obscure the fact that most of the public understands that the policies of the past 13 years have been failures. Some federal employees would no doubt like to kill Snowden, but others surely have begun to think of the ethics of what they are doing and might someday feel compelled to take action to reveal some new illegality. But they will either have to emulate Snowden and work up an elaborate escape route or assume that they will be both vilified and treated with extreme harshness by the existing criminal justice system.

And one might well ask what great dark secrets still remain out there to be exposed? I can think of two possible targets. The first would be the NSA spying program redux, which still continues to operate under slightly modified rules and with little congressional oversight. But perhaps a much bigger story is the Senate torture report, which has already begun to fade in the collective memory. I recently waded through the 549 page summary and can only imagine what horrors the full 6,000 page text contains. More than that, I was astonished by the number and length of the redactions from the summary, making the text almost unreadable on many pages. The redactions apparently consist of details of who, what, when and where that would greatly increase both the comprehensiveness and the credibility of the document. Someone must have an unredacted version of the full text and it would be quite amazing if it were to be leaked.

Philip Giraldi, a former CIA officer, is executive director of the Council for the National Interest.



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