There are a ton of important questions raised by the national security disclosures leaked to The Washington Post and Guardian news organizations by Edward Snowden.
Here’s one more: Should a contractor, paid by a private company, have access to the kind of top-secret information he leaked?
Snowden worked for the Booz Allen Hamilton consulting firm when he disclosed information about government surveillance programs — programs that he and many others feel are an abuse of power.
Yet the release of national security information — no matter how noble the motivation, no matter how important the cause — is against the law. Snowden knows he will have a price to pay.
Beyond his actions is a fundamental debate that has long been argued within the federal government. At the center of this debate is the definition of an “inherently governmental function.”
It’s a bureaucratic phrase, but one that gets to a fundamental question — should contractors do sensitive government work? If government surveillance is not inherently governmental, then what is?
The Federal Register says: “The FAIR [Federal Activities Inventory Reform] Act defines an activity as inherently governmental when it is so intimately related to the public interest as to mandate performance by Federal employees.”
Federal employee unions have long argued that too many contractors are doing work that should be done by employees.
Snowden’s case “is yet another example of why outsourcing our national security to mercenary rent-a-cops is a bad idea,” said Lee Stone, a vice president of the International Federation of Professional and Technical Engineers, which represent many federal employees with security clearance, including some in the Defense Department.
“Contract personnel by definition are not employed by the federal government but rather by a company,” Stone added, “generally a for-profit corporation that answers primarily to its shareholders.”
Also, contractors don’t take the oath of office to “support and defend the Constitution of the United States,” as do federal employees, from the president to the lowest-paid civil servant.
“But it is wrong to state, or even assume, that all things “national security” are, by definition, inherently governmental functions that must be performed exclusively by federal employees,” said Alan Chvotkin, executive vice president and counsel of the Professional Services Council, an association of government contractors. “Most national security functions do not involve government decision-making and can properly and appropriately be performed by contractor employees.”
The “best evidence” of that, he said, is data that also makes the union argument about too many contractors in sensitive positions.
Citing a report from the Office of the Director of National Intelligence, Chvotkin said “1 million contractors hold a clearance at any level.”
Previous columns by Joe Davidson are available at wapo.st/JoeDavidson.