If Edward Snowden were truly a whistleblower — a debatable proposition — could he have claimed legal protection from retaliation by the U.S. government? This hypothetical question is a useful excuse to survey the recent expansion of anti-retaliation laws into the national security and intelligence fields. Our conclusion: There's at least a reasonable argument that Snowden could have been protected.
This article by TELG principal Tom Harrington and TELG managing principal R. Scott Oswald was published by Corporate Compliance Insights on April 10, 2014. The full article is available at Corporate Compliance Insights.
Whistleblowers in the Intelligence Community
The actions of Edward Snowden have sparked a vigorous debate over the information-collecting measures of the U.S. intelligence and security communities. What has not been discussed at much length are the implications for the would-be whistleblowers within the intelligence and security communities.
Whistleblower laws exist in order to provide protections (and in some cases, rewards) for those who bring illegal or dangerous activity to the attention of authorities in a position to put a stop to it. Some have argued that this construction of the term "whistleblower" would not apply to Edward Snowden, since the information he disclosed was not necessarily evidence of illegal activity, but rather activity that he felt the public may find objectionable. However, suppose Snowden believed that the actions of the NSA were outside the scope of their authority, or that the methods they used to collect information were violative of the National Industrial Security Program Operating Manual (NISPOM). To whom could he have made such a disclosure, and would he be protected from retaliation for doing so?