Whistler in the Dark: Snowden Affair is More About Private Contractors Than Surveillance, or Even Whistleblowing

July 19, 2013
Guest Post

by Reuben Guttman, Director and Head of False Claims Group, Grant & Eisenhofer. This piece is a cross-post from The Lawyer.

As former National Security Agency (NSA) and CIA employee Edward Snowden continues to try to evade the US authorities, the spectacle has been the talk of Washington DC. While Snowden is characterised as a whistleblower, the affair raises questions about the US government’s surveillance efforts. Deeper questions exist as to the role of private contractors in implementing governmental functions.

At its heart the Snowden matter questions the role that contractors, including his employer, Booz Allen, play in the implementation of programmes most believe are run by government employees. Who would have thought that the US government would entrust a private contractor to conduct security clearance protocol? Learning about the number of employees working for private contractors demonstrates the extent to which such functions have been delegated to the private sector. That an individual with a sordid education and work history could secure high-level security clearance and access information maintained by the US government can only be explained by the negligence of a private contractor.

Tea party conservatives love to complain about big government and their solution is to contract out the work. At best, their argument is that the private sector is more efficient. The truth is that when the private sector contracts with the government the result is akin to the looting during one of New York’s famous blackouts. The government simply lacks the ability to monitor its contract workforce.

The irony is that if there was a whistle to blow, it should been blown on the process that allowed Snowden to be hired. It is apparently a process that allows unrestrained youth access to both potentially classified data and information about citizens’ private lives.

So how does one define the phrase? Merely revealing information does not make someone a whistleblower. A true whistleblower is someone who uses legal channels to protect lives or advance a moral or legal principle. Of course, a classic whistleblower is an individual who channels information to a regulatory authority, or maybe uses the media when those in authority have subverted the law. Think Watergate and ‘Deep Throat’.

Some have compared Snowden to Daniel Ellsberg, who worked for government contractor the Rand Corporation. He leaked the ‘Pentagon Papers’ to the New York Times, exposing US efforts in South East Asia as a policy that would ultimately cost more US lives than publicly stated. He carefully consulted contacts on Capitol Hill before developing a course of action that led to the release of the papers that exposed the government’s lies.

Snowden is no Ellsberg and the surveillance programme was initiated with lawful process. He does not claim the American public was lied to; at best he views the surveillance programme – by his youthful lights – as unreasonable.

Still, there is legitimate basis to debate the ethics of the programme. No doubt the biggest question is whether it can be properly managed given the apparent extent of private contractor involvement. Yet to call Snowden a whistleblower makes me wonder whether we will label the next Bernie Madoff the same simply because they have exposed defects in the regulatory system.