Edward Snowden, the now notorious former National Security Agency contractor who exposed classified documents to several media outlets, has recently called for more extensive whistleblower protections to protect concerned contractors and employees. In a live chat transmitted on FreeSnowden.is, Snowden stated that legal channels for raising concerns were not available to him. Had he revealed the NSA programs he deems unconstitutional but classified to Congress, he states he would have been charged with a felony. Snowden justified his action of approaching news outlets as the only viable choice under current whistleblower laws.
Snowden went on to explain that while NSA employees have access to whistleblowing channels, contractors, such as himself, do not. Further, Snowden said the current laws do not provide real protections for anyone. He said that had there been a real process in place where reports of wrongdoing were reviewed by independent arbiters, he would not have had to make the sacrifices he has to expose the facts he deemed necessary to the American public.
Snowden states that due to gaps in the federal whistleblower laws, he cannot return to the U.S. as he would be unprotected. Snowden, who fled to Hong Kong and then Russia, acknowledges that returning to the U.S. would be the best resolution for the government, public and himself. However, because Snowden is among a group of contractors exempt from current whistleblower laws, he feels a return is not possible. Snowden believes he would not receive a fair trial absent adequate whistleblower protections.
The saga of Edward Snowden has cast new light on federal and state whistleblower laws. Much of the controversy stems from an important initial question, is Edward Snowden a whistleblower? Under the Whistleblower Protection Act, any disclosure made by a covered employee who reasonably believes there has been a violation of any rule, regulation, or law, or gross waste of funds, mismanagement, abuse of authority, or a substantial danger to public health and safety, is protected. Since Snowden’s leak of documents, numerous lawsuits have been filed challenging the legality of the surveillance programs Snowden believed to be unconstitutional.
However, just because the leaked information served the public interest by exposing potential government illegality does not mean Snowden is protected under the law. Traditionally, the intelligence community has been exempted from the Whistleblower Protection Act. In 1998, Congress passed the Intelligence Community Whistleblower Protection Act. The Act established a procedure for internal reporting within the agencies and through the Inspector General, but has been widely criticized as being ineffectual. The Act provided no remedy for reprisals and merely identified the whistleblowers, leaving them vulnerable to retaliation.
Under current whistleblower acts, Snowden would not be considered a whistleblower. For one, the information he disclosed arguably does not meet the criteria. The surveillance programs he revealed are presumed to be constitutional, and not illegal, given the assent of Congress and the intelligence community. However, even presuming what Snowden exposed was illegal, he meets a second problem under the law’s definition. The Whistleblower Act protects public disclosures only if such disclosure is not prohibited by law. As the information was classified and its disclosure a felony, Snowden would only have been protected had he brought his concerns to the NSA’s inspector general or to a member of the congressional intelligence committee. Even further, under the current law, it is not clear that intelligence contractors are even protected.
The case of Edward Snowden will likely continue to have an impact on whistleblower laws and cases for years to come. At Barrett Law PLLC, we view the role of whistleblowers as vital to our community. In Mississippi, whistleblowers are protected from retaliation when they step forward with important disclosures of law violations and may be entitled to compensation. If you have potential information concerning a violation in your workplace, call us today at 1 (800) 707-9577 to schedule a free initial consultation.
