Redemption can be so sweet. Edward Snowden and his cadre of supporters no doubt were already feeling this from the many accolades and tributes he received this year (most recently, runner-up to the Pope for Time magazine’s Person of the Year!). Now, there is a decision by a federal district court to further cement his validation, finding a “substantial likelihood” that the NSA’s collection of phone records Snowden exposed is unconstitutional.
The indefatigable Judge Richard Leon did not mince words, or dramatic flair, in his denouncement of the secret program. He could not imagine a more “indiscriminate” and “arbitrary invasion” of our privacy. “Almost-Orwellian,” he called it. So horrific there is “little doubt” that James Madison, author of our Constitution, “would be aghast.”
And Snowden gets all the credit. He even got a shout out from the judge early in his decision as the source of the “leaks” (his quotes, not mine) that uncovered what at least this highly respected judge considers to be a grave constitutional injustice.
But it is not this judicial corroboration that will ensure a continued flow of national security whistleblowers like Snowden leaking classified information to the press. Nor is it the global adulation Snowden has received for standing up against what he saw as a government behaving badly. Neither is likely to last all that long.
Judge Leon’s strong words may not even last the year. His decision now heads to the appellate court and almost certainly the Supreme Court after that. The deification of Snowden will be equally fleeting as this issue gets pushed off the front page by the next great government scandal, and the next one after that.
So why can we expect to see so many more Snowdens in our future? The answer lies in how the government is choosing to deal with these kinds of whistleblowers. It seems to think that locking them away for life is the right approach. This, coming from an administration that appreciates the value of whistleblowers, having presided over the largest expansion of whistleblower protections in decades. It just does not consider Snowden the type of whistleblower worth protecting.
That is why, despite the recent proliferation of whistleblower legislation, those who work in the intelligence community remain left out in the cold. The recently amended Whistleblower Protection Act, the central law protecting government whistleblowers, specifically excludes them. So does the recently implemented National Defence Authorization Act, which expanded whistleblower protections to military contractors. Even the Intelligence Community Whistleblower Protection Act, the very statute designed to protect this class of whistleblowers, belies its title by offering no such protection at all.
It is no wonder that Snowden felt compelled to go straight to the media instead of working “within the system” by sharing his concerns with his employer, the DOD Inspector General, the DOJ, Congress, etc. The government has spoken loud and clear. When it comes to national security whistleblowers, it does not want to hear from them.
The truth is we are never going to stop these whistleblowers. No matter the risk of punishment, there will always be those driven to say something when they see something that rubs against their moral compass. And we should be grateful. The need for strict oversight and accountability is just as important with national security as it is in any other context. Perhaps more important these days.
But until these whistleblowers are provided the same incentives and protections afforded everyone else, they will continue to have no viable option but to run to the press. So if the government really wants to prevent the next Edward Snowden, it should spend less time worrying about making an example of him and more time shoring up this gaping hole in its whistleblower regime. Short of that, it is not Snowden and all the whistleblowers that inevitably follow who should be blamed for going public with their national security concerns. Nor should we be surprised to see more national security whistleblowers like Snowden on the run — and in the media — in the months and years to come.
Mr. Schnell ([email protected]) is a whistleblower lawyer with Constantine Cannon LLP in New York City. For more on what Mr. Schnell has written in this area, you can read his blog — http://www.whistleblower-insider.com/. You can also follow his whistleblower practice on Twitter — https://twitter.com/CCWhistleblower.
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