Post Snowden, the Government Still Can't Protect Whistleblowers

Edward Snowden speaks via video link during a news conference in New York City, on September 14. Brendan McDermid/Reuters

Nearly a half-century ago this month, Daniel Ellsberg, a young, intense Defense Department employee distressed over the unending war in Vietnam, removed several volumes of top-secret documents from his safe and turned them over to the press. "The Pentagon Papers," as they became known, recorded the history of covert American involvement in Indochina from the early 1940s to 1968.

Ellsberg's leak has often been compared to the theft of thousands of National Security Agency (NSA) documents by Edward Snowden, the ex-intelligence contractor who's been living as a fugitive in Moscow for the past three years. Like Ellsberg, Snowden has been charged with several counts of stealing highly classified information under the Espionage Act of 1917, a legal truncheon designed to jail spies but frequently wielded against leakers and other political dissidents. Unlike Snowden, Ellsberg and his co-conspirator, Anthony Russo, facing 115 years in jail, came out of hiding after a few weeks on the run and surrendered to the Justice Department for trial. "I did this clearly at my own jeopardy," Ellsberg said as he gave himself up, "and I am prepared to answer to all the consequences of this decision."

Not so for Snowden. Another difference between him and Ellsberg is the nature of the documents they stole. The Pentagon Papers were more a sordid record of government crimes and folly in Vietnam than a compendium of properly classified secrets. They included a chapter on how the Pentagon and President Lyndon Johnson conspired in 1964 to manufacture a false account of an unprovoked attack on U.S. ships to justify widening the war against North Vietnam. Ellsberg believed the public had a right to know what the enemy already did about how the U.S. was fighting this war.

Snowden's supporters argue that Americans also had a right to know what he revealed about the NSA's sweeping surveillance of their emails and telephone calls. But he also revealed the reach of NSA spying on such adversaries as the Islamic State group (ISIS), Russia and China (along with allies like Israel and Germany). Whether Americans needed to know about congressionally authorized foreign intelligence–gathering activities that help protect the nation from subversion or attack is far less certain.

In September, Snowden's supporters launched a publicity campaign to persuade the government to grant him a pardon. One of their arguments is that the system is rigged against whistleblowers—which it is. The Pentagon's own watchdog, or inspector general, Glenn Fine, recently told a House panel that the number of employees who filed complaints about retaliation for reporting waste, fraud and abuse had "more than quadrupled" over the past 12 years, with the total expected to reach 1,600 by the end of fiscal 2016. "At present," he added, his office had "192 open cases" against it, while the Defense Department as a whole had 800.

Mandy Smithberger, of the privately funded Project on Government Oversight, testified at the same hearing about a survey showing that 45 percent of Office of the Inspector General employees "disagreed that their senior leadership maintains high standards of honesty and integrity—nearly twice the rate reported by [other] employees at the Department of Defense," she said.

That's the fun house Snowden's critics say he should have walked into rather than going public.

A few miles around the D.C. Beltway from the Pentagon, the Office of the Director of National Intelligence is trying to corral future Snowdens before they leave their offices with thumb drives full of government secrets. According to a September report from the White House, it has established rewards for "speaking truth to power, by exemplifying professional integrity, or by reporting wrongdoing through appropriate channels."

The announcement was first reported by Steven Aftergood, editor of the highly respected Secrecy News, a publication of the Federation of American Scientists. "Professional integrity may be welcome everywhere," he wrote, "but 'speaking truth to power' is rarely welcomed by 'power.'" He added that reporting wrongdoing "often seems to end badly for the reporter."

Even setting up central offices to field reports of crimes and misdemeanors "doesn't work," says Tom Devine, legal director of another Washington-based whistleblower aid outfit, the Government Accountability Project. "Consistently, they are used as a trap that identifies whistleblowers and funnels their evidence into entities with a conflict of interest that then try to cover up the misconduct," Devine said in a late September press release opposing a congressional plan to open such an office at the Department of Veterans Affairs. He and others argue that new laws are needed to protect government employees who report wrongdoing, especially from inside the intelligence agencies and Pentagon.

But rewriting the Espionage Act is not in the offing, say lawyers who follow the issue closely. "I've never seen any real sentiment within the executive branch to amend [it]," says Stephen Vladeck, a constitutional scholar at the University of Texas law school.

The century-old law carries enormous freight with judges and juries and "can lead to extreme sentencing," as lawyers for former CIA officer Jeffrey Sterling argued. Evidently their judge agreed, sentencing Sterling to 42 months for leaking details of a dangerously botched CIA spy operation against Iran, instead of the 19 to 24 years called for in the statute.

Snowden won't be so lucky. Nor does the fugitive enjoy the public relations advantages Ellsberg had when Americans turned against the war in Vietnam. Opposition to a pardon for Snowden has been widespread, ranging from President Barack Obama and Hillary Clinton to the Republican-led House Intelligence Committee and the editorial board of The Washington Post (one of the newspapers that benefited greatly from Snowden's leaks). In the current climate, he's likely to see many more winters in Moscow.

"I'm deeply conflicted about his whole situation," Vladeck says in an email. "The best scenario for everyone is if the government offered (and Snowden accepted) some kind of plea deal…in exchange for a suspended sentence and a whole bunch of supervised release conditions."

But that's not going to happen under Obama, he concedes, nor under either of his likely successors. "At some point, though, perhaps both sides will realize that there's no perfect solution here." Snowden, he argues, "broke the law, and we're all better off for it."