Over the past few weeks, members of Congress and the press have disparaged Edward Snowden as a "traitor."
But as someone who unveiled evidence of government crime without undermining specific operations -- and did so through the only possible channel for national security workers -- he is unequivocally a whistleblower.
Specifically, Edward Snowden revealed that national security officials lied to Congress. During a hearing of the Senate Intelligence Committee in March, Sen. Ron Wyden asked the Director of National Intelligence, James Clapper, a straightforward question.
"Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" Mr. Clapper: "No sir." An exasperated Wyden, who knew the truth but legally could not talk about it, repeated his question, "It does not?" DNI James Clapper: "Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly." Sen. Wyden even followed up the next day offering Clapper the opportunity to clarify his statement. Clapper declined.
This exchange is clear and convincing evidence that Mr. Clapper misled and possibly lied to Congress, the institution that Americans depend on to have strong oversight over the NSA in order to maintain our claim of having a democracy.
That's why Mr. Snowden told The Guardian that "what they're doing [poses] an existential threat to democracy." Thanks to him, we now know the NSA collected millions of phone and online records from Americans. Those indiscriminate surveillance programs need scrutiny and the Director of National Intelligence should be held responsible and investigated for perjury. But Mr. Clapper has deflected the issue from the NSA's program and his own wrongdoing by calling Mr. Snowden a traitor.
This is not the first time a national security agency has wrongly attacked a whistleblower. Fred Whitehurst was a scientist in the FBI crime laboratory during the 1980s-90s. He observed repeated falsified reports and evidence of mishandling in the forensic lab. Whitehurst reported the abuses to his superiors and the Justice Department. The FBI lambasted him. Mr. Whitehurst was suspended and put under a criminal investigation for leaking. But after a lengthy lawsuit, during which I represented Mr. Whitehurst, the FBI acknowledged the wrongdoing. Whitehurst was vindicated and his whistleblowing led to major changes in the FBI crime lab. Sen. Chuck Grassley called him a "a true national hero."
The government has been quick to claim Mr. Snowden harmed national security. But the documents Mr. Snowden disclosed were carefully chosen to show government wrongdoing and crime. They did not contain the details of specific operations or harm American agents in the field and government officials have not even tried to make that claim.
To be fair, Mr. Snowden's whistleblowing does some harm - to the careers of Mr. Clapper and the NSA officials who oversaw the massive surveillance programs and misled Congress and the American people about them. But their careers are not a national security concern.
Some have suggested Mr. Snowden should have gone through government channels to report abuses. But at the NSA, unlike every other employer in the country, there is no such channel.
The 1989 Federal Whistleblower Protection Act provides crucial protection for federal employees to report wrongdoing, crimes, and abuse. But the law explicitly excluded employees of the CIA, FBI, and National Security Agency.
Faced with evidence of government crimes and wrongdoing, national security employees have to remain quiet. If they decide to report wrongdoing within the organization, they lose their job, their career, and their freedom. That is exactly what has happened to the several NSA employees who have tried to internally blow the whistle over the last decade.
Some, like former Obama adviser David Axelrod, have suggested that Mr. Snowden should have "gone to...Congress." But the reason for Sen. Wyden's exasperation when Clapper lied to Congress was that Wyden already knew about the NSA's abuses as a member of the Intelligence Committee, but was specifically prohibited from talking about it. Reporting a national security crime to the Senate Intelligence Committee is one of the best ways to ensure it is kept secret and is not a viable option for a whistleblower who wants to ensure that the problem is fixed and that officials who violate the law are held accountable.
As a candidate, Barack Obama promised to protect whistleblowers, whose "acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled." But a closer examination shows this to be false. President Obama did create a process for national security whistleblowing in November 2012. But the system he established lacked the essential elements of a whistleblowing program: it prevented any judicial review, provided no privacy protections for whistleblowers, and gave the head of the agency complete control over the case. Under this system, national security whistleblowers would be at the mercy of the very bosses on whom they are blowing the whistle. It is a system designed to fail the whistleblower and hide the misconduct.
The bottom line is this: If we are a democracy, we cannot have a government that spies on the phone and Internet use of millions of innocent Americans with no real oversight over abuses and crimes. Until Congress and the President fix the law, civil servants and contractors who have the courage displayed by Mr. Snowden must be fully protected, and not prosecuted. If Congress and the President will not do so, we as citizens must step up. You can donate to support his legal defense at SnowdenLegalFund.com.
Disclosure: He represented Frederic Whitehurst in his case against the FBI and numerous other national security whistleblowers.