If Snowden is a criminal, why aren't the heads of the NSA and ODNI being prosecuted too?

By David Sirota , written on December 17, 2013

From The News Desk

For months, a debate has raged over the status of NSA leaker Edward Snowden. In the back and forth, one question has dominated: Is he or is he not a whistleblower with all the attendant protections that should (but often don’t) come with such a designation?

As of this week’s court ruling, that debate should now - finally - be over. As I noted during an incredibly heated debate about the ruling on CNN yesterday (video below), if a government whistleblower is defined as one who blows the whistle on illegal or unconstitutional acts, then yesterday’s federal court ruling proves Snowden is the dictionary-definition of a whistleblower.

As you can see from the clip, there still remains a cottage industry of tough-talking self-described conservative pundits slamming Snowden not merely for being in a foreign country, but more revealingly, for the disclosures themselves. These saber-rattlers often invoke their old law-and-order cliches. Yet, based on what we now know, their criticism actually puts them on the side of those who are systemically violating the very laws and constitution which those conservatives purport to love.

To see that, just look at yesterday’s ruling, in which a federal judge suggested the metadata collection programs violate the 4th Amendment. It is a ruling that proves Snowden’s disclosures didn’t, to paraphrase his detractors, just expose legal-but-troubling behavior or stuff we already knew. If the disclosures only did that, then sure - it might be fair to deny him whistleblower status. But the ruling proves his disclosures have exposed systemic crimes. As important, the ruling is not an isolated incident - on the contrary, it adds adds to a entire (and growing) body of evidence documenting criminality by the NSA and top officials. Among that body of evidence are the following facts:

- As the New York Times reported, in 2011 a federal court “found that the (NSA) had violated the Constitution and declared the problems part of a pattern of misrepresentation by agency officials in submissions to the secret court.” The Times notes that one of the examples cited by the court was an “NSA program that keeps logs of all domestic phone calls...which came to light in June as a result of leaks by Mr. Snowden.”

- Assessing a secret government audit provided by Snowden, the Washington Post reported that “the National Security Agency has broken privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008.”

- Snowden’s disclosures proved that Director of National Intelligence James Clapper and NSA chief Keith Alexander both lied (and continue to lie) to Congress about government surveillance. Lying to Congress is a criminal act - one that the Obama administration has used to in its prosecutions. Clapper’s lying was so blatant that even the Republican author of the Patriot Act has called for him to be prosecuted. Snowden’s disclosures provide the basis for such prosecution.

Now sure, the fact-free, opinion-based debate about Snowden’s social standing - is he a narcissist or a hero? is he unpatriotic or a patriot? - can and will continue. But from a legal perspective, this former NSA contractor is clearly a whistleblower - one who deserves basic whistleblower protections, if not a full-on thank you from a country whose civil liberties are being violated.

At the very least, he does not deserve the ire directed at him by self-described conservative blowhards, and he most certainly does not deserve to have top congressional lawmakers publicly endorse drone-killing him.