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Protecting Whistleblowers since 1977

The Hill: Protect the whistleblowers: The case for pardoning Snowden

November 23, 2016
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Critics of Edward Snowden have long maintained that the young whistleblower could have legally and safely worked within the system to reform the NSA, but instead recklessly went rogue.

This simply is not true.

Snowden’s actions can only fairly be judged when considered against a backdrop of Washington power plays, diminishing rights for intelligence community contractors like Snowden, and retaliation against those who did speak up through institutional channels.

Between 2006 and 2012, Democratic senators, led by Claire McCaskill (D-Mo.) had twice successfully expanded whistleblower protections for government contractors, who play a vital role in carrying out the work of federal agencies but are not afforded the same legal protections.

Then in 2012, on the brink of passing a stimulus bill, just days before the House adjourned, members of the House Intelligence Committee threatened to use a procedural maneuver to effectively paralyze the bill, unless all new and pre-existing whistleblower rights for intelligence contractors were removed. Their efforts ultimately prevailed and government contractors were left without statutory whistleblower rights.

What was left? To his credit, President Obama took executive action through a presidential directive that restored protection for members of the intelligence committee employed by the government.

After Mr. Snowden publicly blew the whistle, the president contended this directive, called PPD-19, would have protected him. That is mistaken. White House lawyers later confirmed that without congressional action, the president only can protect contractors against security clearance retaliation.

Mr. Snowden has already explained that his decision to go to the media was very much influenced by both the congressional move stripping prior rights, and the ugly retaliation against those who acted through institutional channels.

In particular, Snowden learned from the experiences of National Security Agency (NSA) officials Tom Drake, Bill Binney and others who reported abuses solely through the House Intelligence Committee and various Pentagon Offices of Inspector General (OIG) in an effort to achieve reform. 

In response, they were treated like enemies of the state, suffering heavy-handed FBI raids. Drake even had to defend himself against an Espionage Act prosecution that sought his 35-year incarceration.

Pardons excuse illegality under extraordinary circumstances. The threat to freedom from illegal mass domestic surveillance was extraordinary, as were the positive reforms brought about by Mr. Snowden’s act of civil disobedience – overwhelming passage of the USA Freedom Act.

It should be beyond debate that citizens have a duty to defend the nation against government threats to our freedom. Mr. Snowden was acting on that duty. Even former Attorney General Eric Holder agrees that our country was better served by Snowden’s actions. We must ask ourselves: In acting in defense of our civil liberties, was Mr. Snowden really required to operate through legal channels without legal rights when brutal retaliation was certain? Is it just to impose near-certain martyrdom as part of a citizen’s civic duty?

If we take away one lesson from the 2016 election, it’s clear that Americans are angry about government abuses of power. This anger needs to harnessed into productive policies, especially protections for whistleblowers who have enabled, and will continue to enable, critical debates at a time of increasing government secrecy. 

By pardoning Mr. Snowden, President Obama can create a legacy of empowering citizens who fight government illegality and abuse and set an important example for the next administration. Mr. Snowden has done his duty for our country and now, we need to do ours for him.  

Devine is the legal director of the Government Accountability Project, the nation’s leading whistleblower protection and advocacy organization.

Author: 
Tom Devine
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