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Jon Greenberg
By Jon Greenberg October 14, 2015

Hillary Clinton claims Edward Snowden had whistleblower protections, didn't use them

Edward Snowden’s decision to reveal the existence of massive national security databases of Americans’ email and telephone data remains a flashpoint for debate among Americans. Some people praise Snowden as a hero. To others, Snowden is a traitor.

The U.S. government charged Snowden, an employee of a government security contractor, with violating the Espionage Act. He found asylum in Russia but would like to return home.

At the first Democratic debate Oct. 13, CNN moderator Anderson Cooper pressed the candidates to offer their view of Snowden.

Hillary Clinton said Snowden shouldn’t come home "without facing the music."

"He broke the laws of the United States," Clinton said. "He could have been a whistleblower. He could have gotten all of the protections of being a whistleblower. He could have raised all the issues that he has raised. And I think there would have been a positive response to that."

That’s not accurate, we found. While American law does shield government whistleblowers, it wouldn't necessarily apply in Snowden's case.

The law

Snowden was charged with two counts of unauthorized communication under the 1917 Espionage Act. That law 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.

Among other details, Snowden showed that under a federal court order, Verizon was providing the National Security Agency with the phone records of nearly all its customers, and on similar terms, giants such as Google and Facebook were turning over user data. He also let the world know that the United States was listening in on the private calls of the leaders of its closest allies.

That law has no specific whistleblower protection.

What Snowden could have relied on, experts say, is the 1998 Intelligence Community Whistleblower Protection Act. That law includes some protections, but they're not as strong as Clinton lets on. And it's not clear they could have saved Snowden.

Under that 1998 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.)

Snowden claims that he did raise his concerns with a legal division at the National Security Agency but was rebuffed. The National Security Agency has released a single email from Snowden in which he asked for clarification of the laws that govern the agency.

A debate over protection