The Whistleblower’s Dilemma: Important Questions Raised by the Edward Snowden NSA Scandal

The seal of the U.S. National Security Agency....Three weeks ago, the nation learned that their private phone conversations might not be as private as they once assumed. In a June 6 article in The Guardian, Glenn Greenwald blew the lid off a secret court order that gave the National Security Agency the authority to collect “all call detail records and ‘telephony metadata'” (both international and domestic) in Verizon‘s systems on an “ongoing, daily basis.” Issued by the secretive Federal Intelligence Surveillance Court, or FISA court, the order was originally handed down on April 25, giving the clandestine agency carte blanche to collect users’ phone data for a three-month period.

Such information includes location data, call duration, and other identifiers, including calling card numbers, trunk IDs, International Mobile Subscriber Identity (IMSI) numbers, and routing information. In other words, the NSA is allowed to collect just about everything about a phone call except the conversation itself – at least under this order.

However, it’s not the type of data being collected that’s most shocking about the order. As Greenwald points out, the most disconcerting component of FISA court’s order was the scope in which it was granted. Rather than give the NSA permission to collect such data only on specified targets who are suspected of being part of a terrorist group or foreign spy agency – the actual purpose of the statute – the sweeping order allows for the collection of this data on anyone and everyone, regardless of their suspected complicity in illegal activity.

To add an extra layer of creepiness, Verizon was explicitly barred from public discussion of these disclosures it was ordered to make, or even the acknowledgement that such an order existed.

Shocking as it was, however, this was just the tip of the iceberg.

A few days later, we found that other companies, including Google, Apple and Facebook were party to a similar NSA program in which server data was also being collected. Perhaps even more disturbing than the nature of the phone data being collected, a top secret document obtained by The Guardian disclosed that these companies and others were making search histories, email contents, file transfer information and live chat conversations available to the agency. According to the 41-slide PowerPoint presentation, such information was subject to “collection directly from the servers” of several prominent Internet companies.

The NSA program, known as Prism, arguably does away with the need for a warrant when it comes to the collection of this information from American citizens. Thus, the program effectively nullifies the constitutional check requiring that probable cause be demonstrated prior to the issuance of a warrant authorizing for the collection of such private information.

And unlike the three-month FISA court order discussed above, Prism as been in place since 2007 and has no definite end.

Following the exposure of these programs – and the embarrassment of the current administration that inevitably followed – the name of the whistleblower finally emerged: Edward Snowden.

A former technical assistant for the CIA and employee of defense contractor Booz Allen Hamilton, a company that works closely with the NSA, the 29-year-old Snowden had first-hand knowledge of the inner workings of the agency, including the FISA order, the NSA Prism program, an NSA data tracking tool eerily dubbed “Boundless Informant,” and other information that Greenwald has said will published as the information is vetted.

“I have no intention of hiding who I am because I know I have done nothing wrong,” announced Snowden in an interview with Greenwald. In a note attached to the first set of documents provided to the British newspaper, Snowden added the following:

I understand that I will be made to suffer for my actions, [but] I will be satisfied if the federation of secret law, unequal pardon and irresistible executive powers that rule the world that I love are revealed even for an instant.

True to his words, Snowden has since been demonized by both the press and the U.S. government, calling him names like “traitor” and suggesting that his decision to blow the whistle has caused “irreversible damage” to the United States.

Since coming forward, Snowden has reportedly been hiding in Hong Kong fighting U.S. attempts to enforce an extradition treaty. Hong Kong has has responded by rebuffing such calls for extradition, arguing that the extradition documents filed by the U.S. failed to satisfy the terms of the treaty.

However, that all changed Sunday night when Snowden fled to Russia, from which it is speculated that he will seek asylum in a South or Latin American county like Cuba, Venezuela or Ecuador, where U.S. extradition requests are likely to encounter even greater resistance than it did in Hong Kong.

In the meantime, it was also revealed over the weekend that the U.S. has filed three felony charges against Snowden, including two under the Espionage Act of 1917. Furthermore, media rumors have begun to swirl as to whether journalist Glenn Greenwald should also face criminal charges for the role he played in publishing the leaks.

What isn’t being discussed, however, is the dearth of legal accountability in the more clandestine components of the federal government. In fact, were it not for the convenient exceptions leaving employees in the intelligence community unprotected by federal whistleblower statutes like the Whistleblower Protection Act and NDAA, Booz Allen Hamilton’s decision to terminate Snowden’s employment would have left the company exposed to civil liability. Instead, current law intentionally shields these agencies and contractors from scrutiny which, if the leaks of the past four years are any indication, is long overdue.

Before we get into that, though, let’s first consider Glenn Greenwald’s situation and the legal protection that is afforded to him as a journalist under the First Amendment. Despite the onslaught of assertions in the media that Greenwald is criminally liable for the publication of the Snowden leaks, the truth is that the Supreme Court addressed such suggestions long ago, in a situation not unlike the present one.

When he leaked the infamous Pentagon Papers to the New York Times and Washington Post, Daniel Ellsberg was also an employee of a military contractor, the RAND Corporation, where he worked as a military analyst. Following the Times‘ initial publication of some of those documents, the Nixon administration attempted to silence the newspapers by invoking an executive right to forbid further publication of the classified information it had received from Ellsberg.

As part of its argument, the U.S. cited Section 793 of the Espionage Act – the same section which is now being used to prosecute Snowden and is being suggested as grounds to prosecute journalists like Greenwald.

However, in a 6-3 decision, the Supreme Court upheld the rulings of both lower courts, which was that no such restraint was legally justifiable. Although the ruling itself did not make any new law with respect to freedom of the press, the majority and concurring opinions of New York Times v. United States have since been cited time and time again to reassert the right of the press to be insulated from prosecution under legislation like the Espionage Act, which was intended to punish those who used their possession of classified information to harm the nation.

In his concurrence, Justice Potter Stewart elaborated on the imperative of the freedom of the press:

In the absence of governmental checks and balances, the only effective restraint upon executive policy and power may lie in an enlightened citizenry – in an informed and critical public opinion which alone can here protect the values of a democratic government.

In other words, to pursue criminal charges against Greenwald would not only serve to undermine decades of precedent set following this landmark case. But more importantly, it would compromise the chief cornerstone of the democratic process – a right so critical it was explicitly enshrined in the very first amendment to the Constitution.

As for the case against Snowden – and the Obama administration’s overt war on whistleblowers in general – I have a slightly nuanced opinion to offer, one that departs from the juvenile shouting match about whether Snowden is a traitor or a hero. Rather than focus so much on what is or isn’t in this isolated instance, the Snowden case should give us pause to consider the current state of our legal system, namely its protection of those in the intelligence community who are effectively required to surrender their consciences as soon as they are given top secret security clearance.

When it comes to matters of law, motive is key. The Espionage Act provides us with a perfect example of this recurring theme. Section 793 of the statute specifically assigns criminal liability to:

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.

This section is littered with key terms and phrases that underscore the purpose of the statute: To prevent those with access to classified information from intentionally (“willfully”) using said information for the purpose of damaging the United States (the country and its constitution, not government officials as many implicitly assert) or aiding foreign enemies (actual enemies of the U.S., not citizens whose tax dollars fund these morally and legally questionable activities). That is, the language of the law being used to prosecute Snowden arguably has no bearing on his situation.

What prevents this key distinction from being recognized, though, is the lack of legal protection for those in possession of such classified information to blow the whistle on legally questionable conduct. So long as legislation continues to carve out exceptions for the intelligence community, it is likely that whistleblowers like Snowden, no matter how righteous their motives, will continue to face criminal prosecution.

However, with each case filed by the current administration – the same administration that was ostensibly elected with a mandate of governmental transparency and accountability – we edge ever closer toward the time at which that “only effective restraint upon executive policy and power” of which Justice Potter spoke is effectively eradicated. And with it, any remaining vestige of the democratic process that we might hope to salvage.

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  • Bob Hatcher

    Matt,
    Security personnel classify everything under one category or another and then take steps appropriately. It may not always seem “right” and I don’t like some of the stuff they do, but this country has crossed that paranoia line and we probably are not going back. If I blame anyone I would blame the poor research on Snowden for employment in the first place by Booz-Hamilton.

    • Robert

      This isn’t an issue of paranoia, its that people are waking up and realizing our country was founded with a set of documents which was setup to restrain government from overstepping it’s bounds and infringing on the rights of the people who established it.

      No, what we have here is a government which has crossed the line of tyranny, aborted all proper legal due process, and refuses to be held accountable for ANY of it’s actions.

  • Ron

    Good job, Matt. Liberty is fleeting for those too lazy or timid to defend it.