Skip to main content

Who broke the law, Snowden or the NSA?

By J. Kirk Wiebe
December 18, 2013 -- Updated 1721 GMT (0121 HKT)
National Security Agency leaker Edward Snowden poses with German Green party parliamentarian Hans-Christian Stroebele in Moscow on October 31. Stroebele returned from the meeting with a letter from Snowden to German authorities, which was distributed to the media. In it, Snowden said he is confident that with international support, the United States would abandon its efforts to "treat dissent as defection" and "criminalize political speech with felony charges." National Security Agency leaker Edward Snowden poses with German Green party parliamentarian Hans-Christian Stroebele in Moscow on October 31. Stroebele returned from the meeting with a letter from Snowden to German authorities, which was distributed to the media. In it, Snowden said he is confident that with international support, the United States would abandon its efforts to "treat dissent as defection" and "criminalize political speech with felony charges."
HIDE CAPTION
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
NSA leaker Edward Snowden
<<
<
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
>
>>
STORY HIGHLIGHTS
  • Kirk Wiebe: Edward Snowden is entitled to amnesty in the U.S. without fear of incarceration
  • Wiebe: Snowden reported surveillance of Americans that violated the Constitution
  • Wiebe, an NSA whistleblower, says federal employees swear to uphold Constitution
  • Wiebe: People who designed, implemented the surveillance also deserve a fair trial

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.

(CNN) -- 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.

J. Kirk Wiebe
J. Kirk Wiebe

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 writes open letter to Brazil
NSA ruling exonerate Edward Snowden?
Can Edward Snowden get amnesty?

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"?

Follow us on Twitter @CNNOpinion.

Join us on Facebook/CNNOpinion.

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

ADVERTISEMENT
Part of complete coverage on
July 24, 2014 -- Updated 1349 GMT (2149 HKT)
Patrick Cronin and Kelley Sayler say the world is seeing nonstate groups such as Ukraine's rebels wielding more power to do harm than ever before
July 23, 2014 -- Updated 2205 GMT (0605 HKT)
Ukraine ambassador Olexander Motsyk places blame for the MH17 tragedy squarely at the door of Russia
July 24, 2014 -- Updated 1142 GMT (1942 HKT)
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
July 24, 2014 -- Updated 1853 GMT (0253 HKT)
Les Abend says, with rockets flying over Tel Aviv and missiles shooting down MH17 over Ukraine, a commercial pilot's pre-flight checklist just got much more complicated
July 24, 2014 -- Updated 1317 GMT (2117 HKT)
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
July 24, 2014 -- Updated 1637 GMT (0037 HKT)
Gerard Jacobs says grieving families and nations need the comfort of traditional rituals to honor the remains of loved ones, particularly in a mass disaster
July 24, 2014 -- Updated 1413 GMT (2213 HKT)
The idea is difficult to stomach, but John Sutter writes that eating dog is morally equivalent to eating pig, another intelligent animal. If Americans oppose it, they should question their own eating habits as well.
July 23, 2014 -- Updated 1630 GMT (0030 HKT)
Bill van Esveld says under the laws of war, civilians who do not join in the fight are always to be protected. An International Criminal Court could rule on whether Israeli airstrikes and Hamas rocketing are war crimes.
July 23, 2014 -- Updated 1205 GMT (2005 HKT)
LZ Granderson says Ronald Reagan went horseback riding and took a vacation after the Korean Air Crash of 1983. So why does the GOP keep airbrushing history to bash Obama?
July 23, 2014 -- Updated 1338 GMT (2138 HKT)
Aaron Miller says Kerry needs the cooperation of Hamas, Israel, Egypt and others if he is to succeed in his peacemaking efforts
July 23, 2014 -- Updated 1251 GMT (2051 HKT)
Errol Louis says the tragic death of Eric Garner at the hands of the NYPD has its roots in the "broken windows" police strategy from the crime-ridden '80s.
July 23, 2014 -- Updated 1408 GMT (2208 HKT)
Gordon Brown says the kidnapped Nigerian girls have been in captivity for 100 days, but the world has not forgotten them.
July 23, 2014 -- Updated 1127 GMT (1927 HKT)
Ruben Navarrette says Texas Gov. Rick Perry is right to immediately send 1,000 National Guard troops to the U.S.-Mexico border in response to the border children crisis.
July 22, 2014 -- Updated 1356 GMT (2156 HKT)
Ukraine's president says the downing of MH17 was a terrorist act, but Richard Barrett says it would be considered terrorism only if it was intentional
July 22, 2014 -- Updated 2015 GMT (0415 HKT)
Robert McIntyre says the loophole that lets firms avoid taxes should be closed
July 22, 2014 -- Updated 1535 GMT (2335 HKT)
Jeronimo Saldana and Malik Burnett say Gov. Perry's plan to send National Guard to the border won't solve the escalating immigration problem.
July 22, 2014 -- Updated 1742 GMT (0142 HKT)
Sally Kohn: The world's fish and waters are polluted and under threat. Be very careful what fish you eat
July 22, 2014 -- Updated 1242 GMT (2042 HKT)
Les Abend says threat information that pilots respond to is only as good as the intelligence from air traffic controllers. And none of it is a match for a radar-guided missile
July 21, 2014 -- Updated 1235 GMT (2035 HKT)
Frida Ghitis: Anger over MH17 is growing against pro-Russia separatists. It's time for the Dutch government to lead, she writes
July 21, 2014 -- Updated 1227 GMT (2027 HKT)
Julian Zelizer says President Obama called inequality the "defining challenge" of our time but hasn't followed through.
July 21, 2014 -- Updated 1157 GMT (1957 HKT)
Gene Seymour says the 'Rockford Files' actor worked the persona of the principled coward, charming audiences on big and small screen for generations
July 21, 2014 -- Updated 1417 GMT (2217 HKT)
Daniel Treisman says that when the Russian leader tied his fate to the Ukraine separatists, he set the stage for his current risky predicament
July 18, 2014 -- Updated 1642 GMT (0042 HKT)
Andrew Kuchins says urgent diplomacy -- not sanctions -- is needed to de-escalate the conflict in Ukraine that helped lead to the downing of an airliner there.
July 19, 2014 -- Updated 0150 GMT (0950 HKT)
Jim Hall and Peter Goelz say there should be an immediate and thorough investigation into what happened to MH17.
July 18, 2014 -- Updated 1507 GMT (2307 HKT)
Pilot Bill Palmer says main defense commercial jets have against missiles is to avoid flying over conflict areas.
July 20, 2014 -- Updated 1755 GMT (0155 HKT)
Valerie Jarrett says that working women should not be discriminated against because they are pregnant.
July 21, 2014 -- Updated 1953 GMT (0353 HKT)
David Wheeler says the next time you get a difficult customer representative, think about recording the call.
July 18, 2014 -- Updated 1933 GMT (0333 HKT)
Newt Gingrich says the more dangerous the world becomes the more Obama hides in a fantasy world.
July 18, 2014 -- Updated 1011 GMT (1811 HKT)
Michael Desch: It's hard to see why anyone, including Russia and its local allies, would have intentionally targeted the Malaysian Airlines flight
July 17, 2014 -- Updated 1914 GMT (0314 HKT)
LZ Granderson says we must remember our visceral horror at the news of children killed in an airstrike on a Gaza beach next time our politicians talk of war
July 17, 2014 -- Updated 1206 GMT (2006 HKT)
Sally Kohn says now the House GOP wants to sue Obama for not implementing a law fast enough, a law they voted down 50 times, all reason has left the room.
July 17, 2014 -- Updated 1214 GMT (2014 HKT)
A street sign for Wall Street
Sens. Elizabeth Warren, John McCain and others want to scale back the "too big to fail" banks that put us at risk of another financial collapse.
July 17, 2014 -- Updated 2016 GMT (0416 HKT)
Newt Gingrich writes an open letter to Robert McDonald, the nominee to head the Veterans Administration.
July 18, 2014 -- Updated 1601 GMT (0001 HKT)
Paul Begala says Dick Cheney has caused an inordinate amount of damage yet continues in a relentless effort to revise the history of his failures.
July 18, 2014 -- Updated 1404 GMT (2204 HKT)
Kids who takes cell phones to bed are not sleeping, says Mel Robbins. Make them park their phones with the parents at night.
July 24, 2014 -- Updated 1625 GMT (0025 HKT)
Buzz Aldrin looked at planet Earth as he stood on talcum-like lunar dust 45 years ago. He thinks the next frontier should be Mars.
July 16, 2014 -- Updated 1804 GMT (0204 HKT)
Mark Zeller never thought my Afghan translator would save his life by killing two Taliban fighters who were about to kill him. The Taliban retaliated by placing him on the top of its kill list.
July 17, 2014 -- Updated 1518 GMT (2318 HKT)
Jeff Yang says an all-white cast of Asian characters in cartoonish costumes is racially offensive.
July 17, 2014 -- Updated 0124 GMT (0924 HKT)
Gary Ginsberg says the late John F. Kennedy Jr.'s reaction to an event in 1995 summed up his character
July 16, 2014 -- Updated 1641 GMT (0041 HKT)
Meg Urry says most falling space debris lands on the planet harmlessly and with no witnesses.
ADVERTISEMENT