The ideal whistle-blower is a martyr who plays by the rules.
He values the public interest more than personal security, so when he notices waste, fraud or abuse on the job, he consults his superiors.
That’s where Edward Snowden is different, said Angela Canterbury, executive director of the Project on Government Oversight.
When he copied and shared with reporters top-secret U.S. intelligence documents, he did not consult his superiors at Booz Allen Hamilton, where he worked as a system administrator.
Instead, he purchased a plane ticket to leave the country.
Although Snowden instigated one of the most sensational leaks of classified information in U.S. history, his cool demeanor and calculated path to asylum through China and Russia make it difficult for citizens — even open government groups — to peg him.
He’s been labeled a “super-whistle-blower” for saving Americans from indiscriminate government spying. Others call him a traitor for exposing U.S. intelligence systems to foreign threats.
“I’ve never seen anything like it,” Canterbury said. “There’s all sorts of speculation because it’s highly unusual to see a whistle-blower behave in the way he has.”
TRAITOR OR PATRIOT?
The term “whistle-blower” can be traced back to the puffy-cheeked bobbies of Victorian England, who blew whistles when they witnessed crimes to warn the public of potential danger.
Much like these antiquated police officers, modern whistle-blowers sound the alarm when they witness a crime and feel obligated to alert the public.
But four days after Snowden made his disclosures, The Associated Press issued a statement from standards editor Tom Kent warning AP employees against calling Snowden a whistle-blower until it can be con firmed that he revealed wrongdoing on the part of the government.
“A whistle-blower is a person who exposes wrongdoing,” Kent wrote. “It’s not a person who simply asserts that what he has uncovered is illegal or immoral.”
When classified information is released, it largely falls into one of two categories, said Mark Horvit, executive director of Investigative Reporters and Editors.
It either helps the public make informed decisions, or it harms the public by exposing vulnerabilities.
The question for whistle-blowers is whether the public’s right to know the information at stake outweighs any downsides of its release.
“When someone comes forward and releases large troves of information, the answers are tougher because oftentimes the information they’ve got usually falls into both categories,” Horvit said.
Canterbury considers some of the information Snowden released whistle blowing material.
Snowden is not the first to accuse the National Security Agency of violating the Fourth Amendment against unreasonable search and seizure. The Foreign Intelligence Surveillance Court ruled in July 2012 that the NSA’s programs for collecting and saving U.S. citizens’ data violated the Fourth Amendment.
And in the months after Snowden’s exposures, most citizens agreed that Snowden was more of a whistle-blower than a traitor. A Quinnipiac University poll from July 28-31 showed 55 percent of Americans supported Snowden as a whistle-blower, and only 34 percent called him a traitor.
Snowden’s revelations are especially important for journalists who want to keep sources safe in the digital age, said Toni Locy, associate professor of journalism at Washington and Lee University. When Locy was a young journalist, she was taught to throw away her notes.
Now the former USA Today reporter teaches her journalism students the same practice.
“If you don’t have it, they can’t subpoena it,” Locy said.
But when Snowden revealed the extent of the NSA’s surveillance system, Locy realized that the government no longer needs to subpoena reporters in some cases because it already collects reporters’ data.
“Snowden got me thinking long and hard about whether the tools reporters use are as safe as they could be,” Locy said.
Now she thinks reporters should never take notes on a computer. Instead, they should handwrite everything and destroy the evidence, she said.
Her practices saved her from a subpoena in 2008 when a federal judge held her in contempt of court for refusing to name confidential sources.
Locy wrote for USA Today about the FBI’s 2001 anthrax attacks investigation, voicing the concerns of federal agents who thought the government was wrongfully targeting scientist Steven Hatfill.
When these agents turned out to be right, Hatfill sued the government and wanted to subpoena Locy’s sources to testify on his behalf.
The judge threatened Locy with fines of up to $5,000 a day if she didn’t reveal her sources, but since she forgot the names and destroyed her notes, she had nothing to tell.
The government eventually settled the case without her sources, and the judge vacated the contempt order against her.
Although she agrees with the AP that it’s too early to call Snowden a whistle blower, she doesn’t like the AP-preferred term “leaker” either because she said it’s equally loaded with the negative connotation of a “traitor.”
“People in government use the word leaker like it’s a leper,” Locy said. “That’s just not the case.”
Her experience taught her that insiders who “leak” on the principle that the public needs to know something are watchdogs in our democracy.
“I don’t think that’s a traitor; I think that’s a patriot,” Locy said.
But in Snowden’s case, so much information is at stake and so many questions are unanswered that the line between a traitor and a patriot proves thin.
ETHICS IN ACTION
When President Obama addressed the press on Aug. 9, he said Snowden is not a patriot. Instead, he called Snowden a criminal.
He said Snowden does not know the true repercussions of his disclosures, and the media is jumping to conclusions that give the world an inaccurate and incomplete depiction of the U.S. intelligence apparatus.
The less thought government insiders give to individual pieces of information they are releasing, the more likely they are crossing the line between patriot and traitor, Horvit said.
As of early September, Snowden and the reporter who broke his story, Glenn Greenwald of The Guardian, have said they are not releasing all the information at their disposal. They claim to be using strict discretion to determine what information the public should and should not know.
Snowden allegedly told the South China Morning Post on June 25 that he plans to “go through” the information before he releases it to foreign countries, such as China and Russia.
Then Greenwald explained in an article on July 13 that he and other journalists are using “rigorous journalistic discretion” to decide which documents should be published.
But Steve Brill, a Columbia Journalism Review reporter, isn’t satisfied with Greenwald’s answer. He would like to learn more about The Guardian’s methods for vetting the information and its qualifications for making judgments about America’s national security interests.
When The Guardian released in July a “top secret” 32-page training manual for XKeyscore, the NSA’s “widestreaching” system sweeping up Internet browsing activity, Brill was frustrated to find four of the manual’s pages blacked out. The Guardian said it redacted the information because it “reveals specific NSA operations.”
In Brill’s “Stories I’d like to see” column for the Columbia Journalism Review on Aug. 6, he asked: “How exactly are Greenwald and his editors making these decisions about what threatens and doesn’t threaten national security?”
According to Horvit, the answer is careful attention to detail. He said when a source comes to a reporter with confidential information, it’s the reporter’s responsibility to judge that source’s motivations and determine if the information he or she shares is a potential threat to society.
The SPJ Code of Ethics instructs reporters: “Always question sources’ motives before promising anonymity. Clarify conditions attached to any promise made in exchange for information. Keep promises.”
The Code of Ethics also advises reporters to “test the accuracy of information” they are given and work to minimize harm by showing “compassion for those who may be affected adversely by news coverage.” (See the full Code of Ethics, which is under review this year for possible updating, at SPJ.org/ ethicscode.asp.)
When something allegedly harms or has the potential to harm national security, SPJ President David Cuillier said most journalists will take the information back to the government and ask them to explain why they shouldn’t print it.
“If it’s important to the public to know, then the government has to prove that that information is going to hurt somebody,” Cuillier said. “If government can, then most journalists either withhold the information or figure out ways of minimizing the harm.”
In his experience working with reporters, Horvit thinks most would agree that some information should not be released because it poses a legitimate threat to national security.
But the government’s definition of what constitutes a national security threat is generally far broader than a reporter’s, he said. And from the Bush administration to the Obama administration, the government tends to push the limit on what qualifies as sensitive information and what warrants prosecuting those who release it.
“There are cases where journalists have traditionally understood that not every piece of information is meant for public consumption,” Horvit said. “The problem though is that the government tends to take that and push it way beyond anything that’s reasonable.”
NO PLACE TO TURN
Thomas Drake worked his first day as a senior executive at the NSA’s Fort Meade campus on Sept. 11, 2001.
In the weeks following that fateful day, he watched as the agency constructed its massive surveillance infrastructure to spy on American citizens.
He said he was concerned about the extent of domestic surveillance, and as he noticed more waste fraud and abuse in the NSA, he consulted his superiors about his concerns. He went through internal channels by talking to Congress and the Department of Defense.
But when nothing changed, he blew the whistle by contacting a reporter at The Baltimore Sun.
Drake told the reporter about an NSA program called Trailblazer that wasted $1.2 billion in government money and was eventually abandoned in 2006.
But even though he didn’t leak any confidential information, the government brought a 10-count indictment against him in April 2010 and accused him of causing “exceptionally grave damage to U.S. national security.”
Jesselyn Radack, one of Drake’s attorneys, said his case is a good example of what Snowden might have been if he’d played by the rules of whistle-blowing to expose the NSA’s programs.
“Everyone says Snowden should have gone through internal channels, and I say, ‘Look, Drake went through every conceivable internal channel, and he still ended up being prosecuted,’” Radack said.
The government accused Drake of violating the Espionage Act, a World War Iera law created to punish federal spies.
The Obama administration has so far used the Espionage Act seven times to prosecute federal insiders for sharing information with the press — more than all previous presidents combined.
Radack doesn’t think most Americans understand the significance of that statement.
“They’re not thinking that there are a lot of people in prison now [that] Obama has put there for really nothing crimes,” Radack said.
When Obama addressed the press on Aug. 9, he assured the public that whistle-blower protections for the intelligence community were put in place, so Snowden had other avenues for questioning federal practices than turning to the press and fleeing the country.
But Canterbury said that even if Snowden had used legal, internal channels for disclosing information like Drake did, he would have had absolutely no protection for having done so.
Snowden could have been fired without any recourse or put in prison, because there aren’t any specific protections for intelligence community contractors under the law.
Even though Obama endorsed the Whistleblower Protection Enhancement Act in November 2012 and expanded it with Presidential Policy Directive 19 to include some intelligence and national security personnel, Snowden had a “top secret” security clearance when he worked at Booz Allen Hamilton.
This means he would not have been included in the whistle-blower protections afforded to lower-level employees who are not privy to classified information, and he would have been vulnerable to internal reproach without an appeal.
In fact, according to the administration’s August appeal in the Berry v. Conyers & Northover case, even lowlevel “noncritical sensitive” employees who can’t access classified information do not have the right to seek protection when they blow the whistle on the government.
This leaves at least 200,000 defense employees with lower security clearances than Snowden without any protections to report wrongdoing.
“Some people say Snowden should come back and face the music,” Radack said. “I say the only music he would face would be going to jail for rest of his life by charges of the Obama administration.”
Whistle-blower protections only work well when they are believed credible by government insiders, Canterbury of the Project on Government Oversight said. That requires a fair system and a framework that proves solid when it is tested.
Until that happens, potential government whistle-blowers might have better luck “pulling an Edward Snowden.”
“Maybe the way the government has been handling disclosure of classification is creating an environment for more leaks,” Canterbury said.
FOCUSING ON THE RIGHT INFORMATION
The most popular form of whistle-blower retaliation is what Canterbury calls “character assassination.” She said it’s a common tactic the government and even the media use to distract the public from critical issues facing the nation by focusing reports about whistle-blowers on their personal lives and motivations.
That’s why when it comes to deciding whether Snowden is actually a whistleblower, Canterbury is not sure it even matters.
“At this point, it matters that he made whistle-blower disclosures, and we should be focusing more on wrongdoing he disclosed rather than him personally,” Canterbury said.
Radack claims the government often controls the conversation about whistleblowers by using the media to misdirect the public.
During her years as a defense attorney for whistle-blowers, she has read illdirected or inaccurate reports about her clients. She said the government always gets quoted in these articles, but sometimes reporters don’t seek an alternative opinion.
“It’s very hard to fight government propaganda and the government machine on this,” Radack said. “They always have an audience, and they always have a medium through which they deliver their message.”
For reporters working with confidential sources or sensitive information, Horvit said it’s important for them to assess the motivations of the person giving them that information and judge the validity of what they are being told.
But what the public should hear from the media is accurate and thorough information about what sources are releasing rather than their intentions for releasing it.
“Many people who leak information do so for their own personal reasons,” Horvit said. “The point is not their motivation for releasing information, but the ultimate value that information has to society.”
Kara Hackett was SPJ’s 2013 Pulliam/Kilgore Freedom of Information intern. She now works at the Fort Wayne (Ind.) Journal Gazette. Interact on Twitter: @karahackett. Send letters to quill@spj.org.
