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The Newly-Passed Federal Contractor Whistleblower Protection Law Would Not Have Helped Edward Snowden

Last December, Congress passed (and the President signed), the National Defense Authorization Act of 2013. Contained in that bill was section 828, now codified at 41 U.S.C. 4712, which, beginning July 1, 2013, will protect disclosures made by government contractors to any member of Congress, an Inspector General, the GAO, a contract oversight employee in an agency, authorized DOJ or law enforcement agencies, a court or grand jury, or a management official at the employing contractor with authority to investigate wrongdoing.

However, and this is a big however, there is an exception for “any element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a (4))” or to

any disclosure made by an employee of a contractor, subcontractor, or grantee of an element of the intelligence community if such disclosure—

(A) relates to an activity of an element of the intelligence community; or
(B) was discovered during contract, subcontract, or grantee services provided to an element of the intelligence community.

Congress inserted the exception last December, as described here.

Was there a pre-existing avenue to disclose wrongdoing to an Inspector General or Congress? Perhaps, as the NDAA builds upon 10 U.S.C. 2409, which covers contractors on a “Department of Defense contract.” Someone more versed in these issues would be able to clarify if NSA contractors are covered by this provision.

I suspect we will learn much about Mr. Snowden’s disclosures and whether they check off this legal box or that in the days and weeks to come. However, I don’t think that’s what’s really at issue here. At it’s heart, Mr. Snowden’s courageous act of civil disobedience challenges this country’s decline into despotism. It’s all the more striking that he did it with likely no legal protections at all, as if nothing had changed between now and the days of the Pentagon Papers disclosures, over 40 years ago.

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