Whistle-Blower, Beware

Whistle-Blower, Beware

http://www.nytimes.com/2016/05/26/opinion/whistle-blower-beware.html

By: Mark Hertsgaard
Date: 2016-05-26

SHOULD it be a crime to report a crime? Many top officials in Washington seem to think so, at least in the case of Edward Snowden.

June 6 will be the third anniversary of The Guardian’s publication of top-secret documents provided by Mr. Snowden that showed that the National Security Agency was collecting the telephone records of tens of millions of Americans.

Outraged by this assault on the Fourth Amendment’s prohibition of unreasonable search and seizure, Tea Party Republicans and progressive Democrats joined to block reauthorization of the USA Patriot Act’s surveillance provisions last year. Only after the N.S.A. was required to obtain warrants to examine such records was reauthorization approved.

But Mr. Snowden, the whistle-blower who set this reform in motion with his disclosures, is persona non grata in the nation’s capital. Democrats and Republicans alike have denounced him as a traitor.

President Obama and former Secretary of State Hillary Clinton have also been unyielding. Mr. Snowden, now in Russia, deliberately broke the law and should not “be brought home without facing the music,” Mrs. Clinton said in a Democratic presidential debate.

“He could have gotten all of the protections of being a whistle-blower,” she said. “He could have raised all the issues that he has raised. And I think there would have been a positive response to that.”

Thomas Drake would disagree. So would John Crane.

Their intertwined stories, revealed this week, make clear that Secretary Clinton’s and President Obama’s faith in whistle-blower protections is unfounded, and cast Mr. Snowden’s actions in a different light.

Mr. Snowden has expressed his debt to Mr. Drake. “If there hadn’t been a Thomas Drake,” he told Al Jazeera, “there couldn’t have been an Edward Snowden.”

Mr. Drake was a senior N.S.A. official who had also complained, 12 years earlier, about warrantless surveillance. As a career military man, he followed the course later advocated by President Obama and Secretary Clinton. Joining others with similar concerns, he went up the chain of command, finally ending up at the Defense Department’s Office of Inspector General.

Things did not go well. In 2007, years after he first raised his concerns, F.B.I. agents raided his house brandishing a search warrant alleging an “unlawful disclosure of classified national defense information.” He was forced to resign and was indicted on 10 felony charges arising from an alleged “scheme” to improperly “retain and disclose classified information.”

He ultimately pleaded guilty to a misdemeanor for “exceeding authorized use of a government computer” in exchange for the government’s dropping the other charges. The federal judge who oversaw his case blasted prosecutors for putting Mr. Drake through “four years of hell.” He now works at an Apple store.

Mr. Snowden followed the Drake case closely in the news media and drew the obvious conclusion: Going through channels was worse than a dead end.

Mr. Crane, a former assistant inspector general in the Defense Department who oversaw the whistle-blower program, has now come forward alleging that Mr. Drake was persecuted by the very officials in his office who were supposed to protect him.

In interviews with me, and in sworn accounts to the government’s Office of Special Counsel, Mr. Crane provided a new chapter in the Snowden story.

Mr. Crane argues that the Defense Department broke the law in Mr. Drake’s case. (Mr. Crane resigned in 2013 after he was told he would be dismissed.)

Assuring whistle-blowers’ anonymity is a core provision of federal laws protecting them. This confidentiality is considered essential to shield them from retaliation. Yet somehow, Mr. Crane said, Mr. Drake’s name came to the attention of the F.B.I. This struck him as suspicious.

(Only in certain cases of imminent public danger or lawbreaking can a whistle-blower’s identity be disclosed, but there’s never been any indication that an exception was invoked. In any case, that danger seems far-fetched.)

Moreover, he said, parts of the Drake indictment so closely tracked the information that Mr. Drake had provided to the inspector general’s office that the confidential material must have been shared with prosecutors.

In addition, Mr. Crane said he was told by superiors that possibly exculpatory documents relevant to Mr. Drake’s prosecution had been destroyed. Mr. Crane suspected wrongdoing.

He complained to the Office of Special Counsel, an independent agency charged with protecting federal employees from reprisal for whistle-blowing. The agency concluded in March that there was a “substantial likelihood” that the alleged record destruction pointed to possible violations of laws or rules and merited investigation.

The special counsel’s office wants to know whether those records were destroyed; if so, why; and whether officials in the inspector general’s office provided false or inaccurate information about those records to the Justice Department or the judge in Mr. Drake’s case.

The Justice Department’s inspector general has agreed to investigate.

For Mr. Snowden, the Drake episode confirmed what he suspected all along. He had only two real options: remain silent, or break the law by leaking documents to the press in hopes that would bring scrutiny to the N.S.A.’s surveillance activities.

Mr. Snowden has admitted he broke the law. But he did so, he explained, because of an overriding public interest: People had a right to know about the warrantless surveillance of them.

Mr. Snowden has said that he will return to the United States if he can get a fair trial. In his view, that means being allowed to offer a “public interest defense.” His lawyers would argue that he had to commit one crime — leaking documents to journalists — to report a greater crime: warrantless surveillance.

But the law forbids this approach. The Espionage Act does not allow a public interest defense: The accused either leaked documents or he didn’t, and if he did, guilty is the only possible verdict.

If a whistle-blower is willing to take that risk to alert the American people to dangers, the least the law should do is take full account of the whistle-blower’s intentions. The Espionage Act should be amended to allow a public interest defense. Let Mr. Snowden come home and face trial. But make it an honest trial.