THENEWYORKER,SEPTEMBER23, 2019 61
argue that his disclosures set U.S. coun-
terterrorism efforts back by years, and
endangered American intelligence
agents and their sources all over the
world. Some also point to the circum-
stances of his flight and exile: because
Snowden first sought refuge in Hong
Kong and has been granted temporary
asylum in Russia (due to expire in 2020),
it has been variously alleged, without
proof, that he did not act alone, that he
shared American military secrets with
China, and that he’s a dupe of Putin.
Snowden denies these accusations.
The patriot-traitor divide should be
less a matter of opinion than a matter
of law, but the law here is murky. On
the one hand, you might think, if
Snowden is a patriot who did what he
did for the good of the country, then he
deserves not only the protection of First
Amendment freedom of speech but also
the legal shelter afforded whistle-blow-
ers, under legislation that includes the
1989 Whistleblower Protection Act—
except that Snowden signed an oath not
to disclose government secrets, and nei-
ther the Whistleblower Protection Act
nor its many revisions and amendments
extend its protections to people who
disclose classified intelligence. On the
other hand, you might think, if Snowden
is a traitor whose actions put his coun-
try at risk, the Justice Department was
right to charge him under the Espio-
nage Act—except that it doesn’t sound
as though he were a spy. (Unlike Julian
Assange, Snowden has criticized Putin,
and the F.B.I. believes that Snowden
acted alone.) “Permanent Record” doesn’t
settle any of these questions, or even
evince much concern about them. In-
stead, Snowden appears to have other
worries. “Forgive me if I come off like
a dick,” he writes, knowingly.
“
S
nowden could one day be seen as
America’s first traitor-patriot,” the
political scientist Allison Stanger writes,
less King Arthur than King Solomon,
in “Whistleblowers: Honesty in Amer-
ica from Washington to Trump” (Yale).
Stanger interviewed Snowden for her
book, a brisk and interesting history
of people who, while working for the
government, find out about terrible
things the government is doing, includ-
ing waste, fraud, mismanagement, and
abuse of authority, and expose that mis-
conduct to the public. She argues that
Americans support whistle-blowing
in theory, but, in practice, they treat
whistle-blowers badly. They also tend
not to like them. “Whistleblowers are
by definition troublemakers,” Stanger
writes. “For that reason, they can be
difficult people.”
Laws protecting government whis-
tle-blowers from retaliation have been
on the books in the United States since
1778, when, in the wake of a scandal in
the Navy, Congress resolved that “it is
the duty of all persons in the service of
the United States, as well as all other in-
habitants thereof, to give the earliest in-
formation to Congress or any other
proper authority of any misconduct,
frauds or misdemeanors committed by
any officers or persons in the service of
these states, which may come to their
knowledge.” In “Crisis of Conscience:
Whistleblowing in an Age of Fraud”
(Riverhead), Tom Mueller dates legis-
lation having to do with corporate whis-
tle-blowers to the Civil War, when Con-
gress passed the False Claims Act of
1863, to encourage private citizens, re-
ferred to as “relators,” to help counter
corruption among military contractors
by initiating suits for fraud on behalf of
the government. (The Department of
Justice did not then exist.) Relators who
could prove fraud were to be rewarded
with a portion of any recovered money.
They still are.
Whistle-blowing, at least by that
breezy name, is on the rise. In the years
since Congress passed a sweeping revi-
sion of the False Claims Act, in 1986,
relators have recovered sixty billion dol-
lars in misspent taxpayer money. “This
is the age of the whistleblower,” Muel-
ler observes. Mueller, who interviewed
more than two hundred whistle-blow-
ers and profiles half a dozen, focusses
on the corporate kind, especially in the
health-care and finance industries. Stan-
ger sets corporate whistle-blowing aside,
declaring it a separate case. But the age
of the whistle-blower is also an age of
corruption, deregulation, and privatiza-
tion in which the border between the
public and the private sectors is as thin
as a dollar bill. Snowden, notwithstand-
ing his “I used to work for the govern-
ment” line, never did; he worked for a
series of private companies, because the
kinds of services he provided, mainly se-
curity and systems administration, had
been privatized.
Snowden currently heads the board
of the nonprofit Freedom of the Press
Foundation, which was established in
2012 by, among others, Daniel Ellsberg.
In 1971, Ellsberg leaked to the New York
Times and the Washington Post forty-
seven volumes of classified documents
about the Vietnam War which came to
be called the Pentagon Papers. (Unlike
Snowden, Ellsberg, a former marine
with a Ph.D. in economics, had held
positions of considerable influence: he’d
served as an adviser in Vietnam and
helped draft some of the reports that
made up the Pentagon Papers, and he’d
read all of them.) In New York Times
Co. v. United States (1971), the Supreme
Court ruled the publication of the pa-
pers to be constitutional, but the Nixon
Justice Department pursued charges
against Ellsberg under the 1917 Espio-
nage Act all the same. So desperate was
Nixon for a conviction that his “plumb-
ers” broke into the office of Ellsberg’s
psychiatrist in the hope of finding evi-
dence to discredit him. The arrest of the
plumbers led both to the dropping of
the charges against Ellsberg and to the
great unravelling known as Watergate.
But the exposure of classified intelli-
gence still falls into a different bin from
all other kinds of whistle-blowing. Since
1978, whistle-blowing that risks na-
tional security has been a contradiction
in terms. If you steal classified docu-
ments, you can’t be a whistle-blower.
Then, there’s the question of legality.
In the summer of 2013, when Snowden
gave an apparently countless number of
stolen files to the press, the question of
whether the N.S.A.’s mass-surveillance
program was unconstitutional was, at
least in a narrowly legal sense, unre-
solved. Behind closed doors, both Con-
gress and the White House had ap-
proved the program under the authority
of the 2001 Patriot Act. In public, the
N.S.A. denied that the program even
existed. “Does the N.S.A. collect any
type of data at all on millions or hun-
dreds of millions of Americans?” a Sen-
ate committee had asked the director
of National Intelligence, James Clap-
per, early in 2013. “No, sir,” he answered.
“Not wittingly.” Lying to Congress is
against the law. After Snowden’s revela-
tions, Presidential advisers recommended
