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.
(Page 3 of 3)
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.Skip to next paragraph
In Pictures Edward Snowden on the run: villain or hero?
Subscribe Today to the Monitor
“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.”