When President Obama announced “a series of concrete and substantial reforms” related to the controversy surrounding the nation’s massive collection of electronic data, he omitted discussion of an important one: increased whistleblower protections for intelligence and national security contractors.
His speech Friday at the Justice Department was notable in several ways, yet he did not venture into territory that possibly could have avoided this serious national ruckus.
Would Edward Snowden, the fired National Security Agency contractor who leaked a seemingly endless supply of documents to The Washington Post and the Guardian, have used proper channels if those protections were in place?
But without those protections for individual workers, the government itself is less protected from unauthorized disclosures than it needs to be.
This “important discussion would not have happened if Edward Snowden hadn’t thrust the scope of the government’s activities into the open,” said Danielle Brian, executive director of the Project On Government Oversight, which advocates for whistleblowers. “Snowden did not have safe channels to make disclosures,” she added. “If the president wants to prevent leaks, there must be meaningful intelligence community whistleblower protections.”
Whistleblowers need protection from retaliation by employers when they report waste, fraud or abuse. Some protection is provided in the Presidential Policy Directive, PPD-19, that Obama issued in October 2012, but it applies only to national security employees. Contractors, such as Snowden, who do much of the work, were not covered.
This discussion raises a question: Is Snowden a whistleblower, or a thief?
The answer might prove to be both.
Obama’s speech unwittingly confirms the value of Snowden’s leaks in disclosing the far-reaching nature of U.S. data collection practices. A Pew/USA Today poll released Monday points to falling approval of the government’s actions, with 40 percent indicating approval, and 53 percent not.
Yet even if Snowden’s actions provided a worthy service by informing American citizens that information about their communications was being stored by the government, it would be no surprise if a court decided that those actions were against the law. Snowden’s violation of a trust is clear.
“[O]ur nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets,” Obama said. “If any individual who objects to government policy can take it into their own hands to publicly disclose classified information, then we will not be able to keep our people safe, or conduct foreign policy.”
Obama told the New Yorker magazine, “I do not have a yes/no answer on clemency for Edward Snowden,” and he said, “The benefit of the debate he generated was not worth the damage done.”
House intelligence committee Chairman Mike Rogers (R-Mich.) was more critical on NBC’s “Meet the Press.”
“This was a thief who we believe had some help, who stole information the vast majority [of which] had nothing to do with privacy,” he said. “Our Army, Navy, Air Force, Marines have been incredibly harmed by the data that he has taken with him and we believe now is in the hands of nation states.”
Maybe it didn’t have to come to this.
Intelligence community whistleblower protections were included in legislation that Congress considered in 2012, but they were stripped before the bill passed. Since “Chairman Rogers successfully demanded removal of those rights, whistleblowers like Snowden have been legally defenseless when trying to work within the system,” said Tom Devine, legal director of the Government Accountability Project. It is legal counsel for Snowden and says he should get amnesty or clemency.
“The Whistleblower Protection Enhancement Act of 2012 is not as strong as I had hoped it would be,” said Rep. Elijah E. Cummings (Md.), the top Democrat on the House Oversight and Government Reform Committee. “We need to provide meaningful rights to whistleblowers in the intelligence community, and we need to amend the law to allow whistleblowers the ability to go to court and have their case heard by a jury.”
The President’s Review Group on Intelligence and Communications Technologies brought new attention to the need for whistleblower protections in its December report. It called for creation of a Civil Liberties and Privacy Protection Board, which “should be an authorized recipient for whistle-blower complaints.”
According to the Review Group: “Although an individual government employee or contractor should not take it upon himself to decide on his own to ‘leak’ classified information because he thinks it would be better for the nation for the information to be disclosed, it is also the case that a free and democratic nation needs safe, reliable, and fair-minded processes to enable such individuals to present their concerns to responsible and independent officials. After all, their concerns might be justified.”
Those processes are lacking.
The U.S. government, “in part, created the circumstances that led to Snowden’s actions, because it failed to provide any realistic outlet for Snowden to pursue with his concerns,” said Mark Zaid, a lawyer who represents national security whistleblowers.
“Unless a groundswell of support is created for the contracting community individuals, they will be forever isolated and will have to act at their own peril,” he said.
Until that changes, Zaid said, “more Snowdens are on our horizon.”
Previous columns by Joe Davidson are available at wapo.st/JoeDavidson.