When Edward Snowden dropped his bombshell about widespread government snooping, he revealed more than National Security Agency secrets.
His actions also exposed big holes in whistleblower protections available to intelligence community employees and contractors.
Most federal employees who report waste, fraud and abuse have legal protections against retaliation by their bosses. If employees are retaliated against, the law defines certain procedures designed to get justice for whistbleblowers.
For employees in national security agencies, the protections are still a promise. National security contractors don’t even have that.
Snowden was a contractor for the NSA when he leaked classified information about top-secret surveillance programs to The Washington Post and Britain’s Guardian.
He fled to Hong Kong, knowing U.S. authorities would be after him. He explained during a Guardian online Q&A session Monday why he took off:
“First, the US Government, just as they did with other whistleblowers, immediately and predictably destroyed any possibility of a fair trial at home, openly declaring me guilty of treason and that the disclosure of secret, criminal, and even unconstitutional acts is an unforgivable crime. That’s not justice, and it would be foolish to volunteer yourself to it if you can do more good outside of prison than in it.”
Few whistleblowers disclose such explosive information. But whistleblower advocates think unauthorized disclosures will continue until the government provides better protections for employees and contractors who know of abuse within national security agencies.
Louis Clark, president of the Government Accountability Project, a whistleblower advocacy organization, thinks the Snowden case may push members of Congress to expand whistleblower protections “if they want to avoid information going to the public.”
“There needs to be an alternative. . .” he added, “or you’re going to have a blanket release of information, which is a huge problem.”
Those protections should include strong rights for national security whistleblowers and payback when those rights are violated, said Angela Canterbury, director of public policy for the Project on Government Oversight. If the government or a company unfairly retaliates against a whistleblower, they should be “ordered to provide remedies,” Canterbury said.
Don’t count on Rep. Mike Rogers (R-Mich.), chairman of the House Permanent Select Committee on Intelligence, to support expanded whistleblower rights for intelligence community workers.
“There are already strong protections in place for true whistle blowers — they can take their concerns to a variety of inspectors general and ombudsmen throughout the Intelligence Community, and they can talk to the House and Senate Intelligence Committees,” he said in an e-mail. “I have seen many people take advantage of these channels, which allow a whistle blower to voice concerns about legitimate government abuse in a secure environment. Edward Snowden skipped all of these options and went right to the press and China. He has provided information to our adversaries that goes well beyond the programs he said he had concerns with. He broke the law. He has damaged our national security, and he has betrayed his country.”
Advocates don’t see a criminal in Snowden, but a whistlebower deserving defenders. “By communicating with the press, Snowden used the safest channel available to him to inform the public of wrongdoing,” the GAP said in a statement supporting him. “Nonetheless, government officials have been critical of him for not using internal agency channels — the same channels that have repeatedly failed to protect whistleblowers from reprisal in the past. In many cases, the critics are the exact officials who acted to exclude national security employees and contractors from the Whistleblower Protection Enhancement Act of 2012.”
“If those protections existed today, Snowden’s disclosures would have stood a greater chance of being addressed effectively from within the organization,” the GAP said.
Although government intelligence employees were not included in legislation, President Obama issued a policy directive in October on “Protecting Whistleblowers with Access to Classified Information.” The directive prohibits supervisors from retaliating against whistleblowing employees but not contractors. It calls on “the head of each Intelligence Community Element” to develop a process allowing employees to seek review of retaliatory personnel actions.
Each agency must certify it has developed a process within 270 days of the date the directive was issued, which means they have about three weeks to get that done.
Employees and contractors “desperately need effective and clear channels to blow the whistle and have their cases adjudicated in a fair and meaningful manner,” said National Whistleblowers Center Executive Director Stephen M. Kohn.
For Snowden and others, “the normal channels, going to Congress or the inspector general, were cut off,” Kohn added during an interview.
Kohn said “the White House must keep the promise made by President Obama, during his 2008 election campaign, when he pledged to support legislation that would fully protect all government whistleblowers, including those in sensitive national security positions.”
But Obama didn’t promise to protect those who broke the law, even if for a worthy cause.
Previous columns by Joe Davidson are available at wapo.st/JoeDavidson.