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Edward Snowden, who illegally leaked classified information about a National Security Agency intelligence gathering program to a British newspaper last week, had ample legal channels to report what he felt were illegal or improper activities.
The inspector general for the Defense Department runs a hotline for military and intelligence officials to report such conduct in ways that do not disclose classified information to the public.
Experts on national security whistleblower laws say Snowden could also have disclosed the information to members of Congress.
Director of National Intelligence James Clapper said Tuesday that Snowden’s leak did “huge, grave damage” to the country’s intelligence-gathering capabilities.
The Pentagon provides avenues for whistleblowers to disclose alleged wrongdoing in ways that avoid disclosures that could have that affect.
The foremost law providing such an avenue is the Intelligence Community Whistleblower Protection Act (ICWPA).
The law provides means for the disclosure of classified information to members of Congress in a way that protects the information from public disclosure and protects the identity of whistleblowers who do not believe that their direct superiors will act on allegations of wrongdoing.
“The whistleblower passing [classified information] through the ICWPA process knows they’re protected against giving it out impermissibly,” explained Dan Meyer, the DOD inspector general office’s director of whistleblowing and transparency, in a recent webinar on journalism involving military and intelligence whistleblowers.
“Whistleblowing and leaking are two fundamentally different activities,” Meyer said. “A leak is an unlawful communication, it’s one that is prohibited by law. Whistleblowing is one that is not only required by regulation, but protected by law.”
Exposing wrongdoing or illegal activity by military and intelligence officials, Meyer said, is a “patriotic duty.” However, there are channels that should be used to do so to avoid the illegal release of classified information, he said.
Meyer said he “even offered … to courier it up [to Congress] and pass the clearances to make sure the committee members were the right ones to pass it to,” in cases where whistleblowers did not feel comfortable going through the ICWPA process.
Mark Zaid, a national security attorney who has represented numerous military and intelligence whistleblowers, said Snowden had numerous formal and informal avenues to disclose the information in legal ways that did not compromise intelligence programs.
“At the very least, he should’ve started off at the different inspector general offices,” Zaid told the Washington Free Beacon in an interview.
Zaid noted that the ICWPA only applies to whistleblowers disclosing illegal information, and that the NSA program exposed by Snowden appears to have been approved by Congress and judicial authorities. However, he noted that Bush administration whistleblowers reported activities, such as enhanced interrogations, that had likewise been approved.
Even absent the ICWPA process, Zaid says Snowden could have personally disclosed the information to Congress.
“There are quite a number of members of Congress who he could’ve gone to who would have embraced him. Clearly [Sen.] Rand Paul [(R., Ky.)] would have been very interested in this, and Sen. [Ron] Wyden [(D., Ore.)]. On both sides of the aisle, there are members of Congress … who clearly would have embraced what he would have told them,” Zaid said.
If Snowden had come to his office, Zaid said, he would have brought him directly to Congress. “The way I handle it will give that person as much if not greater protection” than the ICWPA, he insisted.
“He could have revealed everything directly to Sen. Rand Paul, directly to Sen. Wyden,” Zaid said. “Any member of Congress has the appropriate security clearances for what he knew.”
Going to Congress could also be a more effective means of spurring policy changes, which was one of Snowden’s apparent motivations for the leak.
“When whistleblowers work with the media, media coverage in and of itself does not solve the problem that whistleblowers have brought to the disclosure process,” Meyer explained.
“Many whistleblowers believe that if there’s just exposure through the press, that somehow it stops,” Meyer said, but policy changes require that a congressman or federal or law enforcement official follow up on that disclosure.
“I’ll never say, ‘I could have made all the difference in the world,’” Zaid said. “I’d never say that, because I have no idea, and I’m sure we would’ve hit roadblock after roadblock. But the fact is we’ll never know if anything I could have done would have worked, because he went straight to the media.”
“And look at how that turned out,” Zaid said. “Mr. Snowden, are you having fun?”