The 9th Circuit just vindicated Snowden – it’s time to drop his charges

This week, the 9th Circuit Court of Appeals ruled that the NSA telephone surveillance program revealed by Edward Snowden was illegal and likely unconstitutional. This ruling should finally end any remaining debate on whether Snowden’s actions constituted whistleblowing, and on his necessity of going to the press. The question now is how to remedy the legal and ethical dilemma he was placed into. It’s time to either drop his charges or pardon him.

The court’s ruling validates Snowden on multiple levels. It settles beyond doubt that his belief in the illegality of the programs he witnessed was reasonable. The panel of judges ruled that the mass telephone surveillance conducted under Section 215 of the USA PATRIOT Act was illegal. And while they refrained from issuing a ruling on the Constitutional challenge, they strongly suggested that the program was in violation of the Fourth Amendment. They ruled that the government’s claims about the effectiveness of the surveillance had been lies, and that its legal theory about the necessity of mass collection of phone data was “unprecedented and unwarranted.”

Legally, a whistleblower does not need to ultimately be proved correct about the concerns they report. If they simply have a “reasonable belief” their employer is breaking the law, they are entitled to whistleblower protections. While any plain reading of the Fourth Amendment and the FISA statutes should have sufficed to prove a reasonable concern, this ruling is beyond sufficient affirmation that Snowden’s concern was “objectively reasonable”.

While he should have been able to make a protected whistleblower disclosure based on such concerns, those channels were not a realistic option. As an outside contractor, he would not have been guaranteed protection under the Intelligence Community Whistleblower Protection Act (ICWPA) statute in place at that time. Critics of Snowden also conveniently ignore the history of other NSA employees who blew the whistle on these programs before him. The internal channels were used to “catch and kill” the complaints of at least four previous surveillance whistleblowers, placing them – and even the Congressional intelligence committee staffer they went to – under criminal leak investigations. Snowden saw, for example, the punitive treatment of NSA whistleblower, Thomas Drake. Drake went through every conceivable internal channel: his boss, the NSA Inspector General (IG), the Defense Department IG, and the House & Senate Intel Committees. Not only did they fail to redress his grievances, many acted to further punish him: ignored his concerns, marginalized him, forced him out, blacklisted him, and ultimately drove his failed criminal prosecution.

Snowden correctly assessed that the only remaining option was to go to the press, and the 9th Circuit ruling credits him for choosing that path, noting that his disclosures enabled “significant public debate over the appropriate scope of government surveillance”. Indeed, this ruling simply would not have been possible without his public disclosures. The government had long maneuvered to keep mass surveillance programs beyond this kind of judicial scrutiny.

As a witness to large scale illegality, and without effective or safe channels, Snowden was placed in a dilemma: break his agreement to protect classified information, or break his sworn oath to uphold the laws and defend the Constitution. He chose to honor his higher duty and so turned to the only other available channel that could serve as a check against government wrongdoing: the press. Snowden turned to the “Fourth Estate” and it played exactly the role the Founders intended. We cannot now prosecute him as a spy or abandon him to a lifetime of exile for having done so.