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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.

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“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.

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“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.”

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