Snowden Twists in the Wind as Government Attacks Whistleblowers
NSA whistleblower Edward Snowden’s whereabouts remain in limbo, stalled while he tries to find a country to accept and protect him. Snowden applied for asylum from Russia this week while holed up in the Moscow airport, after Ecuadorian officials hemmed and hawed over whether to provide him a temporary travel document. He reportedly has applied for asylum in nearly 20 other countries as well.
Snowden had initially fled to Hong Kong before moving on to Russia, after leaking documents demonstrating the massive spying program that the National Security Administration runs against U.S. citizens, which includes logging data on nearly every phone call made in the country and the capacity to collect any and all transactions and communications made over the Internet.
He has been charged with espionage and other offenses and faces 30 years in prison if U.S. authorities ever get their hands on him.
Most government employees and contractors can invoke protections if they reveal waste, fraud or abuse within the government, but because he was in the intelligence sector, Snowden did not have the benefit of whistleblower laws. The laws also don’t protect people who disclose classified information, which can lead to criminal charges in addition to job termination.
Tremendous Chilling Effect
The Obama administration has led a furious campaign against various leakers from inside the government, not just Snowden. On the president’s watch, eight people have been charged under the Espionage Act for leaking information, more than twice the number of other people so charged for leaks in the history of the nation.
Most recently, it was revealed that retired Marine Four-Star General and former Vice Chairman of the Joint Chiefs of Staff James “Hoss” Cartwright is the subject of a government investigation for leaking information about a cyber attack on Iran’s nuclear facilities.
Earlier this year the nation learned that Washington secretly collected Associated Press phone records to try to find a leaker, and had a Fox News reporter followed in order to figure out who was slipping him information.
“There are so many ways to trace communications today that anyone who communicates with a journalist is at risk,” says David K. Colapinto, general counsel at the National Whistleblowers Center in Washington, D.C. “It’s going to have a tremendous chilling affect on the free flow of information from sources in the government to the media.”
Put On Watch
The Whistleblower Protection Act of 1989 shields most federal employees from retaliation if they report government misconduct. There are also certain First Amendment protections for speaking about fraud and abuse in public or to the press.
Although most civil service employees do have a trail blazed for legal whistleblowing, they should still act with caution. “Consult the lawyer ahead of time,” says Colapinto. “Beware of what the capabilities are to intercept and identify your communications. Even if you’re doing everything legal and by the book and not disclosing anything sensitive and classified you’re still going to be put on watch.”
Employees can take their information to the federal Office of Special Counsel, the Inspector General or even to Congress. If they face retaliation or get fired, they should speak to the Office of Special Counsel or Merit Systems Protection Board and seek court review.
For employees or contractors who work for the many intelligence agencies, safe options for disclosing information are slim to none. “There are no protections for retaliation for anyone who works in the intelligence community,” Colapinto says. “None. No enforceable legal rights.”
The Obama administration is formulating a policy ostensibly designed to protect intelligence whistleblowers, but it’s not legally enforceable and leaves the whistleblower at the mercy of the agency head. So even employees and contractors who legally call out non-classified information that is non-controversially evidence of waste, fraud or abuse can still be fired with no recourse.
“There’s virtually nothing that a lawyer in the United States can do to enforce any rights for that person,” says Colapinto. “On the intelligence side of it, you’re dead meat.”