Littwin: The whistleblower blues

The New York Times publishes an editorial, and at least one thing becomes clear: Newspapers still matter, at least if the paper is the Times, which has proposed that Edward Snowden come home, with the semi-blessing of a reluctant Obama administration.

The paper must have landed with a thud— easily detected by the National Security Agency — on Barack Obama’s doorstep in Hawaii. Obama always reads the Times, even when on vacation.

As matters stand today, if Snowden ever returns to America from his Russian exile, he faces charges that could bring up to 30 years in federal prison. He could get life if all the expected counts are added. In its editorial, the Times proposes something quite different — a plea bargain and a reduced sentence. Or clemency. Some kind of whistleblower discount.

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What Snowden has done isn’t really in question. He stole NSA files and leaked them to the media. We know what happened as a result. The Obama administration was embarrassed/compromised by revelations about allies. And the NSA was revealed to have overreached mightily in collecting so-called metadata on American phone calls, emails and whatever other data points you can name. Suddenly, all the old arguments about security versus privacy were being raised again.

A federal judge said the NSA’s bulk collections were probably unconstitutional. An Obama panel said major reforms are required to rebalance security/privacy concerns. National Intelligence Director James Clapper basically admitted he had, uh, misled (read: lied to) Congress about data being collected from Americans. The Snowden leaks revealed the extent that phone companies and Internet companies were being forced to offer up their data to the government. An audit revealed that the NSA consistently broke its own rules on privacy.

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And the Times argued in its editorial, “Considering the enormous value of the information he has revealed, and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight. He may have committed a crime to do so, but he has done his country a great service.”

So the question remains: Is Snowden a whistleblower, or he is a traitor?

Put another way: Was Snowden’s motive in leaking the files to undermine America or to expose the NSA’s abuses?

These seem like easy questions to me, but apparently they’re tougher for others, and that includes the Obama administration, which is a leader in the just-say-no-to-leakers movement. And then there are the polls, which also fall into the anti-Snowden camp. And then there’s Snowden himself, who has done little to endear himself to the American public. He’s been a little, shall we say, smug, which isn’t necessarily how we like our whistleblowers. He told the Washington Post in a recent interview, “I already won.”

Well, there’s winning, and there’s winning. But there’s also leaking, and there’s leaking.

Leaking is a Washington tradition of some standing. And Jack Shafer argued in a Reuters column, so long as you’re a high-ranking administration or intelligence source, leaking is not an issue. It’s actively encouraged. The president’s men (and women) decide what’s classified and what’s not, what’s declassified and what’s not, what’s reclassified and what’s not. Which leaks are OK and which leaks require you to inquire about Moscow apartments for rent.

It’s the unexpected, unwanted and inconvenient leaks that can land an NSA contractor in prison. Of course, it could be worse. Former CIA head James Woolsey told Fox News that Snowden should be tried as a traitor and, if convicted, “should be hanged by his neck until he is dead,” which seemed a little extreme even by CIA standards.

The hanging, or just prison, are meant as a deterrent so there won’t be any more Snowdens, for better or worse. Of course, there have been other high-profile leakers, and there probably will be more. What’s certain, in this case, is that we wouldn’t be having these inconvenient conversations about privacy without Snowden.

In his end-of-year news conference, Obama suggested that there are whistleblower protections in place if someone like Snowden wanted to come forward. But as Glenn Greenwald argued on CNN, if senators like Mark Udall and Ron Wyden were too constrained by intelligence rules to reveal what they know about the NSA, how would anyone expect Snowden’s whistleblowing to be heard?

The guessing is that Obama will do the right thing — or at least some of it — on the 46 recommendations made to reform how the NSA operates. He said in his news conference that faith in American intelligence was at stake.

But what does that mean for Snowden, who also has a few issues at stake? There would be no reforms without Snowden’s leaks. How should we treat that — as an exception or according to the old rules?

It’s the question that the Times editorial tries to answer: “When someone reveals that government officials have routinely and deliberately broken the law, that person should not face life in prison at the hands of the same government.”

That seems like an inarguable position. But even if people are listening, that isn’t to say the argument is being heard.

Mike Littwin runs Sundays in The Aspen Times. A former columnist for the Rocky Mountain News and Denver Post, he now writes for ColoradoIndependent.com.