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Understanding whistleblower protections and the NSA surveillance leaks

The recent leaks about controversial NSA surveillance programs have created an awkward situation for the Obama administration, which just last year provided new whistleblower protections for the intelligence community.

The disclosures about a sweeping program to monitor phone data and internet communications came from Edward Joseph Snowden, a former Booz Allen Hamilton contractor who has fled to Hong Kong in an effort to avoid possible charges in the U.S.

In 2012, Congress passed legislation to expand whistleblower protections for federal workers and contractors, but lawmakers rejected a provision extending the new guidelines to the intelligence and national security communities.

(Patrick Semansky/AP) (Patrick Semansky/AP)

President Obama, who supported extending the protections, issued an executive directive that year allowing intelligence employees to disclose information free from retaliation under certain circumstances.

The president’s order permits federal intelligence employees to make disclosures without reprisal from supervisors, inspectors general and the director of national intelligence. The employees must believe they have evidence of waste, fraud, abuse, legal violations or dangers to public health or safety.

It is not clear whether the NSA case would fall into any of those categories for a federal employee. Snowden, who was not on the federal payroll, has suggested that the surveillance programs represent a threat to liberty and democracy.

“I believe that at this point in history, the greatest danger to our freedom and way of life comes from the reasonable fear of omniscient State powers kept in check by nothing more than policy documents,” Snowden told journalist Barton Gellman, adding that the expansion of surveillance powers is “such a direct threat to democratic governance that I have risked my life and family for it.”

Where do you put that? Is it an abuse of power? A threat to public well-being?

Those questions may not matter to the government when whistleblowers go to the media, as Snowden did. The president’s directive only protects employees who lodge their complaints with inspectors general.

More importantly in this case, the presidential order applies only to federal employees. Snowden was a contractor and, therefore, not protected.

Regardless of what might happen with Snowden, the president’s surveillance policies have met with resistance from Democrats and Republicans.

Sens. Ron Wyden (Ore.) and Mark Udall (Colo.) issued a joint statement Friday questioning whether Patriot Act surveillance measures have proved any “uniquely valuable intelligence.” And on Sunday, Sen. Rand Paul (R-Ky.) said in a talk-show interview that he plans to file a class-action lawsuit against the Obama administration for its surveillance programs.

Nonetheless, the administration has found allies among lawmakers from both parties. Republican senators John McCain (Ariz.) and Kelly Ayotte (N.H.) have joined Democrat Dianne Feinstein (Calif.), who chairs the Senate Intelligence Committee, in backing the surveillance program.

Obama has defended the efforts, describing them as a modest and lawful encroachment on privacy that is justified in order to protect against terrorist plots. The president has also emphasized that the government does not collect information on individual callers or eavesdrop on phone conversations without warrants.

A recent Washington Post-Pew Research Center poll shows that most Americans support the blanket tracking of telephone records in an effort to uncover terrorist activity.

A petition on the White House’s “We the People” site calls on the administration to pardon Snowden for his disclosures about the NSA surveillance programs.

For more federal news, visit The Federal Eye, The Fed Page and Post Politics. To connect with Josh Hicks, follow his Twitter feed, friend his Facebook page or e-mail josh.hicks@washpost.comE-mail with news tips and other suggestions.

Josh Hicks covers Maryland politics and government. He previously anchored the Post’s Federal Eye blog, focusing on federal accountability and workforce issues.



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