If Edward Snowden had been a federal government worker, he would have been protected by federal whistleblower legislation. He's not. He's considered a part of the "intelligence community," so he's pretty much out of luck at this point.
Gordon Schnell, an attorney and partner at Constantine Cannon who specializes in whistleblower and fraud law tells Business Insider that in recent years, Congress has gone out of its way to not provide protection for national security workers who leak information to the public.
Consider Bradley Manning, the Army private who leaked classified information to Wikileaks, and currently on trial for charges that could carry a sentence up to 20 years.
But Snowden's biggest problem isn't that he's a national security employee, or that he decided to disclose evidence he thought was improper government activities, but that he decided to go straight to the press instead of taking proper action that could've prevented him from facing criminal charges.
First, national security workers should report any concerns and harmful activities to the inspector general, who are supposed to be semi-independent of any government agency. If that doesn't work, there are other intra-government routes to consider, such as going to Congress.
"It won't immunize whistleblowers from full disclosure, but it's a lot safer than going to the press where there's no protection at all," Schnell tells us. "Think about how different this story would be if [Snowden] had tried other avenues first and come up empty handed."
"The story would be much more black and white [if Snowden had gone to the inspector general and Congress first] than it is now." Schnell isn't saying that Snowden should have ruled out the press completely, but that if he had tried to get the information out in other ways and failed, he'd have an easier time defending himself in court.
"Locking people in jail for the rest of their lives isn't going to solve the problem."
Going back to Snowden's status as a national security worker, Schnell says the problem is that, "the government has left itself a lot of room in what it considers to be an intelligence or national security whistleblower." These employees can include anyone working for the Central Intelligence Agency (CIA), National Security Agency (NSA), Defense Intelligence Agency (DIA) and intelligence units in most other government agencies.
It's hard to identify these workers, and they're excluded from any kind of federal protection. In the early drafts of The Whistleblower Protection Act , legislation was supposed to include national security workers, but these workers were left out before adoption.
Schnell says that Snowden's case is similar to Manning in that both of them seem to not have any other motives in leaking the information other than their belief that it should be public. However, like Manning, Snowden was "reckless" and the government "will go after Edward Snowden in the same way that they went after Bradley Manning."
Although the government will likely try to make an example out of Snowden, "locking people in jail for the rest of their lives isn't going to solve the problem." Instead, there needs to be a national security whistleblower platform where people can r eport anonymously.
Schnell says that for now, "the way that the government goes after Snowden is going to be really important, because it'll show what they're really trying to accomplish." But in order to prevent this from becoming a recurring problem, eventually, he says the government needs to recognize that they're part of the problem.
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