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Jon Greenberg
By Jon Greenberg January 7, 2014

Greenwald: NSA leaker Snowden has no whistleblower protection

Edward Snowden, the former National Security Agency contractor who revealed the reach of American intelligence into the private lives of its citizens, is approaching a legal turning point. He is at the midpoint in his one-year asylum granted by Russia. What lies beyond is uncharted territory.

The New York Times editorial board said the government should grant Snowden clemency and a plea arrangement that contains a limited punishment. Others, including White House National Security Adviser Susan Rice, have said Snowden should return without conditions and "have his day in court."

In the view of Glenn Greenwald, the investigative journalist who was one of the first to gain access to Snowden’s stolen documents, a fair trial is the last thing that awaits the whistleblower if he comes back without a deal.

"Under the Espionage Act, you're not allowed to come into court and say ‘I was justified in disclosing this information’," Greenwald said on CNN’s The Lead. "There is no whistleblower exception in the Espionage Act."

Greenwald’s debate with Ruth Marcus of the Washington Post made for good television. But we wanted to dig deeper into Greenwald’s point about Snowden. There are two pieces to this puzzle. What does the law say and could Snowden reasonably expect to tell his side of the story in a trial?

Limited protections for the intelligence community

The Espionage Act of 1917 makes it a crime punishable by death or imprisonment to share "information relating to the national defense" with anyone who might want to do harm to the United States. Snowden faces two counts of unauthorized communication under that law.

The Espionage Act contains no explicit whistleblower protection, said Bob Turner, a national security expert at the University of Virginia who has been critical of Greenwald and thinks Snowden should face the death penalty.

However, Turned noted that while the 1917 law is silent, a law passed in 1998, the Intelligence Community Whistleblower Protection Act, does provide government workers with options.

Under that law, Snowden could have raised his concerns with the Inspector General’s Office at the NSA or spoken to congressional intelligence committees. A separate federal law protects whistleblowers more generally but that only applies to sharing unclassified information, not the secret materials that Snowden had in hand.

"Had Mr. Snowden taken his information to the House or Senate intelligence committees, that would clearly not have violated the Espionage Act," Turner said. "And if it did, his conduct would have been protected by the more recent 1998 whistleblower statute."

But others familiar with this legal landscape told us that no matter what, Snowden was still vulnerable.

The Intelligence Community Whistleblower Protection Act, for instance, does not prohibit agencies from retaliating against employees, said Elizabeth Goitein, co-director of the Brennan Center’s Liberty and National Security Program at New York University School of Law.

Goitein said President Barack Obama helped matters slightly when he issued a presidential order preventing retaliation against federal employees. But that order did not explicitly address the rights of contractors such as Snowden. And Goitein added, neither that directive nor the whistleblower law "bars the government from criminally prosecuting whistleblowers."

In 2010, NSA staffer Thomas Drake tried to use proper channels to report allegations of improper contracting but wound up the target of an investigation, said Kathleen McClellan, the national security and human rights counsel for the Government Accountability Project, a whistleblower advocacy group.

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"Drake followed the Intelligence Community Whistleblower law to a ‘T’," McClellan said. "He went to the Department of Defense inspector general and both congressional intelligence committees and it did not protect him from retaliation. In fact, it made him the target of an investigation."

Federal agents wrongly went after Drake in pursuit of a separate matter and charged him with multiple felonies, according to a report from the Committee to Protect Journalists. When it became clear that whatever Drake had shared with the press was either not classified or already in the public domain, the government’s felony case collapsed. A federal judge said it was "unconscionable" that Drake and his family had endured "four years of hell."

Restrictions within the courtroom

Greenwald said Snowden would not be allowed to justify his actions in court. On this front, we can’t offer a definitive assessment. We don’t know what matters government prosecutors would permit into the courtroom, and we don’t know how a judge would rule on the government’s motions.

However, recent trials under the Espionage Act make it clear that Snowden could expect no guarantee that he would be able to tell a jury why his violations might serve the country’s national interests. What he and his lawyers could present might be tightly constrained.

"The executive branch has asserted the sole authority to determine what remains a secret," McClellan said. "The way these Espionage Act prosecutions have gone, it has not been fair to the defendants. It has not followed what you would expect in a traditional trial."

Turner of the University of Virginia said he thinks public sympathy for Snowden is so broad, he might do fine with a jury.

"All he needs to walk free is a single juror who views him as a ‘hero’," Turner said.

But whether any juror would hear a single reference to Snowden’s claims to a higher purpose is also unclear.

In 2012, a federal judge ruled that former CIA worker John Kiriakou could not present evidence about his reasons for going public with accounts of U.S. waterboarding during interrogations. Kiriakou was charged with disclosing classified information under the Espionage Act.

"Any claim that he acted with a salutary motive, or that he acted without a subversive motive, when he allegedly communicated NDI (national defense information) to journalists is not relevant to this case," the judge wrote.

The trial of leaker Bradley (now Chelsea) Manning -- who gave troves of classified information to WikiLeaks -- followed similar lines, with the important difference that those proceedings took place in a military courtroom.

Our ruling

Greenwald said that if Snowden returned to the United States, he would have no protections under the Espionage Act and would not be allowed to justify his actions in court. In terms of the law, Greenwald is literally correct.

Two other legal documents, however, could have provided Snowden some potential protections before he shared classified information with the press. But once he did, no law offers Snowden any shelter.

Greenwald’s further claim on what Snowden could say in his defense is less clear because it depends on what government prosecutors would do. We can’t assess the accuracy of any statement about future outcomes. However, it is clear that there is ample precedent to show that Snowden would have no guaranteed opportunity to explain his motivations.

Folding in that ambiguity, we rate the claim Mostly True.

Our Sources

CNN, The Lead with Jake Tapper, Jan. 2, 2013

New York Times, Edward Snowden, Whistle-blower, Jan. 1, 2014

CBS News, Susan Rice on contending with crisis, Dec. 22, 2013

Committee to Protect Journalists, The Obama Administration and the Press: Leak investigations and surveillance in post-9/11 America, Oct. 10, 2013

Brennan Center for Justice - New York University School of Law, National Security Whistleblowing: A Gap in the Law, Aug. 21, 2013

Boing Boing, If Snowden returned to U.S. for trial, could court admit any NSA leak evidence?, Dec. 23, 2013

United States District Court for the Eastern District of Virginia, Memorandum opinion in United States of America v. John Kirakou, Oct. 16, 2012

United States Code, Espionage Act of 1917, via Cornell University Law School Legal Information Institute

United States Code, Intelligence Community Whistleblower Protection Act, via Cornell University Law School Legal Information Institute

Executive Office of the President, Presidential Policy Directive 19, Oct. 10, 2012

Email interview, Bob Turner, professor, Center for National Security Law, Univ. of Virginia Law School, Jan. 4, 2014

Email interview, Elizabeth Goitein, co-director, Brennan Center’s Liberty and National Security Program, New York University School of Law, Jan. 6, 2014

Interview, Kathleen McClellan, national security and human rights counsel, Government Accountability Project, Jan. 6, 2014

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