Who broke the law, Snowden or the NSA?

Editor’s Note: J. Kirk Wiebe is retired from the National Security Agency, where he worked for more than 32 years. He received the NSA’s second highest award, the Meritorious Civilian Service Award; the Director of CIA’s Meritorious Unit Award; and a Letter of Commendation from the secretary of the Air Force, among other awards. He was an NSA whistleblower on matters of privacy involving massive electronic surveillance.

Edward Snowden deserves amnesty and the ability to return to the United States without fear of being incarcerated for reporting crimes by people in high places in the U.S. government. Monday’s ruling by U.S. District Judge Richard J. Leon that the NSA’s widespread collection of millions of Americans’ telephone records was unconstitutional bolsters this view.

But for some, whether to give Snowden amnesty is not an easy matter to reconcile. After all, they say, he broke laws in divulging classified information.

Indeed, some say he is a traitor. But just as a member of the U.S. military is not required to follow an unlawful order, it is proper that an employee of the United States intelligence community – NSA, CIA, DIA and others – should report any information that concerns law-breaking by the intelligence agencies or their employees.

An NSA official’s suggestion that amnesty for Snowden could possibly be put on the table was undoubtedly welcome news for Snowden, yet NSA Director Gen. Keith Alexander rejected the suggestion.

But how can anyone believe that Snowden would not be deserving of amnesty? Clearly it is the government and its senior officials who committed the crime – people who took oaths to defend the Constitution from enemies both foreign and domestic and who failed to take to heart the words they swore to uphold. Indeed, Snowden did not – nor does any government employee – swear allegiance to the president of the United States, or even to the secretary of Defense or the director of NSA. No, he swore to uphold and defend the Constitution.

Unfortunately, while federal law protects whistleblowers who work in other government sectors from reprisals for truth-telling and have paths for reporting wrongdoing and mismanagement, those who work in intelligence are expressly denied such rights. When Senior Staff Representative Diane Roark and longtime senior NSA employees Bill Binney, Ed Loomis, and I submitted a formal complaint about mismanagement at the agency, the government’s response on July 26, 2007, was to send the FBI to raid our homes, searching them for seven hours and seizing our computers, phones and other digital media. We are just now getting our property back after having successfully sued the government in December 2012.

The government even indicted Tom Drake, although it dropped its criminal charges in the case against him. Still, for the five of us, it was the equivalent of a punch in the face and a warning to other would-be “truth-tellers” not to report wrongful government activities or the government will come after you.

Snowden clearly saw what the government does to whistleblowers who try to work within government to fix things that are wrong. He knew that our complaint to the United States Department of Defense inspector general in September 2002 went for naught. Although the report agreed that our complaint was well-founded, nothing happened – no one was found guilty of wrongful behavior or waste of hundreds of millions of taxpayer dollars.

Even before writing the complaint, we – all longtime and senior NSA employees – along with Diane Roark, a senior staffer on the House Permanent Select Subcommittee on Intelligence, had approached Congress in 2001 about the matter of illegal collection of data about U.S. citizens. No action. Snowden might have known that we were ultimately punished by approaching officials, and even had our security clearances revoked when the FBI raided our homes – despite the fact that four of the five of us were not indicted and none of us was found guilty of committing a crime.

For employees in the business of intelligence, there are no honest brokers, no viable paths to follow to report the subverting of the U.S. Constitution. It is the reason Snowden went first to Hong Kong and ultimately Moscow to seek refuge. He did not go to those places to give away national secrets, rather he needed a place to stay that was safe from extradition and where he could wait while the United States sorted through the facts, especially those regarding government leaders who violated the most basic of our nation’s laws – the right to privacy.

It was shocking to see the interview on MSNBC a few years ago with the former director of NSA, Michael V. Hayden, and hear him redefine the Fourth Amendment of the U.S. Constitution. When asked whether NSA had violated the Fourth Amendment, Hayden said it had not. Hayden said “probable cause” was not the Fourth Amendment’s standard for violating a citizen’s privacy – it was based on “reasonable suspicion.”

Recognizing that the whole matter of secret presidential orders and extreme interpretations of the Constitution in regard to executive wartime authorities by the U.S. Department of Justice could be the subject of a book by themselves, one thing is clear – no one asked either the Supreme Court or the people of the United States whether bulk collection of citizens’ phone metadata was constitutional. As we saw on Monday, Judge Richard Leon does not think so.

In recent days, Hayden defended the actions of both the Bush and Obama administrations, stating that the NSA collection program was “blessed” by all three branches of the U.S. government.

What Hayden has not said is that neither the Foreign Intelligence Surveillance Court nor Congress had a good understanding of what was going on. The NSA contends it provided Congress with the opportunity to be briefed on the surveillance, but some members of Congress dispute that. Snowden’s revelations since June have certainly made it clear that no one – except the NSA – believes they had the whole truth about the extensiveness of its data collection efforts, whether from the Internet or from the phone system.

Perhaps more germane to this discussion whether Snowden should receive amnesty and the matter of who committed the real crime – Snowden or the government – is that the legal basis for NSA in defending its actions can be found in a single court case called Smith v Maryland (1979) – which went to the Supreme Court at a time when there was hardly an internet and nobody even dreamed there would be cell phones, social network sites or Twitter.

In this case, touted by the government as legitimizing the bulk collection of metadata under Section 215 of the Patriot Act, the police inserted a recording device at the telephone company to record the metadata – phone number originating the call, time of call, number called and duration of conversation – associated with a man suspected of robbing a lady. The alleged thief challenged the constitutionality of the police recording the metadata associated with the phone call, but the Supreme Court backed the lower court’s decision that doing so under the circumstances was constitutional.

Now, one might ask how does the Supreme Court’s approval of the collection of metadata associated with a single phone call made by a suspected thief end up authorizing the bulk collection of phone metadata of hundreds of millions of American citizens by the most powerful spy agency in the world? We all know that the field of law has its quirks, but it’s clear such an interpretation of law does not constitute justice, let alone make sense.

With those facts as background, I think most Americans would agree that Edward Snowden deserves amnesty. In fact, it is those who allowed these programs to be implemented and developed over the past 12 years who should be prosecuted. After all, do we not stand for “equal justice for all”?

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The opinions in this commentary are solely those of J. Kirk Wiebe.