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Analysis: Why Edward Snowden isn't a whistle-blower, legally speaking

The Guardian via Getty Images

Edward Snowden speaks during an interview in Hong Kong.

Ever since Edward Snowden revealed himself as the leaker of classified documents about U.S. surveillance programs, he has sometimes been called a whistle-blower. But is he?

Those who believe he has shed light on improper government actions say he deserves to be called one. But there seems little doubt that he cannot claim legal whistle-blower protection.

For starters, the general whistle-blower laws apply to government employees who expose wrongdoing, by protecting them from such retaliatory actions as firing, demotion, salary cuts, or blocked promotions. But those laws do not apply to employees or contractors who work for the intelligence agencies.

Instead, a separate law, the Intelligence Community Whistle-blower Protection Act, applies to people who held positions such as the one Snowden did as a contractor for the National Security Agency. Legal experts say, however, that it provides no protection to him for two reasons.

First, they say, he did not expose the kinds of actions covered by whistle-blower protections — illegal conduct, fraud, waste or abuse. Some people have argued that the programs revealed by Snowden are illegal or unconstitutional. For now, they are presumptively legal, given the assent of members of Congress and the special court known as FISA that oversees intelligence operations.

But suppose Snowden’s supporters are right, and what he exposed was illegal conduct after all.

Then he would face a second problem: The Federal Whistle-blower Protection Act protects the public disclosure of “a violation of any law, rule, or regulation” only “if such disclosure is not specifically prohibited by law.” In other words, Snowden could claim whistle-blower protection only if he took his concerns to the NSA’s inspector general or to a member of one of the congressional intelligence committees with the proper security clearances.

Asked on Tuesday what chances Snowden would have to qualify for whistle-blower protection, Steve Vladeck, a professor at the Washington College of Law at American University in Washington — an expert on the issue — said, “none.”

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