After Deep Throat and Daniel Ellsberg, one of the whistleblowers at the top of American minds is Edward Snowden. In 2013, Snowden revealed the existence of previously classified mass intelligence-gathering surveillance programs run by the U.S. National Security Agency (NSA) and the U.K.’s intelligence organization, Government Communications Headquarters (GCHQ). For this, Snowden was charged with espionage by the U.S. government and, subsequently, fled the country.
Snowden’s exposure of NSA surveillance is a controversial subject; supporters claim he is a hero, while detractors say he is un-American. Snowden himself though is confident about the positive impact of his disclosures. In a 2019 interview with The Guardian, Snowden said, “we live in a better, freer and safe world because of the revelations of mass surveillance.”
However, Snowden still faces U.S. criminal charges for violating the Espionage Act, despite the fact that such a prosecution is unconstitutional. The law is vague and over-broad with a long and sordid history of suppressing legitimate dissent. NWC co-founder and leading whistleblower attorney, Stephen M. Kohn, said of the Espionage Act in a 2010 Guardian article that “[t]here are responsible mechanisms policing truly abusive leaks. The Espionage Act is not such a tool.” With its broad language, the Espionage Act prohibits the publication of information by anyone to be used “to the injury of the United States.” As Kohn asks in that same article: what are the determinants of national security risk and an injury to the United States? Originally designed to prosecute spies bringing military secrets back home, this Act has been used against whistleblowers, not spies, who release information that they believe is in the American interest.
Without clear guidance on the matter, wielding the Espionage Act against Snowden seems to clash with the free speech protections in the First Amendment that Snowden is and was entitled to. However, this protection is not absolute – the benefit to the public from a disclosure must outweigh the government’s need for secrecy.
Additionally, at the time Snowden blew the whistle, U.S. law provided little to no whistleblower protection for employees and contractors of national security agencies, who are not covered by standard federal employee whistleblower protection laws.
In late 2012, President Obama signed the executive order, Presidential Policy Directive 19 or PPD-19, which created administrative procedures to protect whistleblowers who work for U.S. intelligence agencies, including the NSA, CIA, DNI and the Defense Intelligence Agency. President Obama leaned on this order in defense of his handling of Snowden saying, “I signed an executive order well before Mr. Snowden leaked this information that provided whistleblower protection to the intelligence community – for the first time. So, there were other avenues available for somebody whose conscience was stirred and thought that they needed to question government actions.”
However, this Directive fails to provide adequate protection for whistleblowers. Originally, it did not include national security contractors, like Snowden, despite the high number of contractors who work in the intelligence community. Additionally, it explicitly neglects to create any real legal protections: language in the PPD-19 states that, “This directive is not intended to and does not create any right or benefit, substantive or procedural, enforceable at law.” In other words, an agency can violate any of the procedural or substantive rights laid out by the PPD-19, and the whistleblower is unable to oppose it. Finally, as Joe Davidson of the Washington Post noted, procedures for the directive were not implemented until July 2013 – after Snowden had made his disclosures.
These tenuous protections may have precipitated Snowden’s disclosure to the press. If whistleblowers must rely on an empty law with limited unassailable protections afforded by it, they may seek alternative avenues like the media. To stop leaks of sensitive information, strong legal avenues must be provided to these whistleblowers.
With intelligence whistleblowers still facing retaliation from superiors and even from sitting presidents, their protection is paramount. Whistleblowers in the intelligence community must be afforded real protections and clear avenues of reporting in order to bring forth evidence of misconduct to appropriate authorities. Antiquated laws like the Espionage Act and ineffective protections like PPD-19 only serve to push whistleblowers with legitimate concerns for American safety away from proper channels.
The case of Edward Snowden exemplifies the many hurdles whistleblowers can face when stepping forward. The National Whistleblower Center is working tirelessly to make sure future whistleblowers who do report can do so safely and without fear of retaliation, because as Snowden said in a 2019 interview: “You have to be ready to stand for something if you want it to change.”