Sorry, Obama. There Were No “Other Avenues” for Snowden’s Whistle-Blowing.

President Barack Obama holds a press conference in the East Room of the White House on Aug. 9, 2013.

Photo by Saul Loeb/AFP/Getty Images

Edward Snowden went over the president’s head, and the president thinks it was totally not cool of him.  At a news conference earlier this month, he said: “There were other avenues available for somebody whose conscience was stirred.” Furthermore, “[w]ell before Mr. Snowden leaked this information,” the president reminds us, he signed an order that “for the first time … provided whistle-blower protection to the intelligence community.”  

The president even says he “called for a thorough review of our surveillance operations before Mr. Snowden made these leaks.”

In other words, according to President Obama, Edward Snowden didn’t have to go over the commander-in-chief’s head to get his concerns addressed, because not only does the president support whistle-blowers—and thus would have taken Snowden’s concerns seriously—he was already in the process of addressing the issues Snowden went above him to get addressed.

I see a few problems with this.

First of all, it’s unclear exactly what avenues the president believes Snowden should have taken to raise concerns about the NSA’s secret surveillance programs. Last week, he told Jay Leno: “If you think that the government is abusing a program … you can come … to the appropriate individuals and say, ‘Look, I’ve got a problem with what’s going on here. I’m not sure whether it’s being done properly.’ ”

He has a point. If Edward Snowden had concerns that one of his co-workers was abusing the NSA’s surveillance authority to—for example—collect data on a former girlfriend or blackmail a member of Congress, he could have reported his concerns to a supervisor, and it’s highly likely that person would have done something about it.

But, contrary to what the president seems to think, Edward Snowden wasn’t concerned that the NSA was “improperly” collecting information on hundreds of millions of Americans. He was concerned that the government was collecting information on hundreds of millions of Americans. And how exactly does the president think Snowden should have raised that concern?

Snowden’s former employer, Booz Allen, which requires employees to report “all suspected violations of the law” and cautions them to “take care to not report a violation to someone that [they] believe is involved in the matter.”

Well, nearly everyone Edward Snowden worked for—up to and including the president of the United States—was involved in the matter. So, again, whom exactly should he have gone to with his concerns?

I read the Presidential Policy Directive that the president says would have provided Edward Snowden whistleblower protections, to see if it had any guidance as to how Snowden should have reported his concerns. The PPD said the director of national intelligence would “provide guidance for potential recipients on the appropriate handling of Protected Disclosures.”

So, I visited the DNI’s website, where I found a page titled: “How to File a Whistleblower Complaint.” At first glance, this page appeared to be helpful, as it provides step-by-step instructions on how a potential intelligence community whistle-blower—who doesn’t feel comfortable raising his concerns within the intelligence community—can bring an “urgent concern” directly to Congress. One example of an “urgent concern” given in the instructions: evidence that someone in the intelligence community had made “a false statement to Congress.”

This seemed promising as we now know Snowden had compelling evidence that James Clapper, the director of national intelligence, had—himself—provided a “false statement to Congress.” In response to a question from my former boss, Sen. Ron Wyden, D-Ore., Clapper denied that the National Security Agency had been wittingly collecting data on hundreds of millions of Americans.

But then I noticed a problem. Before bringing an “urgent concern” to Congress, the guidance states that all potential intelligence community whistle-blowers must first notify the DNI of their “intent to contact the congressional intelligence committees directly.” In other words, if Snowden wanted to inform the Senate intelligence committee that the DNI had lied, he would first have to inform the DNI that he intended to inform on him. That seems like it could be a problem.

But, let’s say it wasn’t. Let’s say the director of national intelligence did the honorable thing and allowed Snowden to go to the Senate intelligence committee with evidence that he lied. Would Snowden have had any reason to believe going to Congress would make the least bit of difference?

Probably not, since the House and Senate intelligence committees were already aware of the NSA’s activities. And, having worked for Wyden, a committee member who spent years trying to raise concerns about domestic surveillance, I can tell you, individual members of Congress were virtually hamstrung from doing anything about the administration’s activities. Especially since the executive branch’s classification rules forbid the senator from sharing his concerns with anyone outside of the intelligence committee, including staff.

Seriously, imagine having your boss ask you—as mine did me—to get the media to cover something he could only describe in vague, hypothetical terms.

“I don’t know what the government may or may not be doing,” I’d get to tell reporters, “And I can’t give you any evidence that the government is or is not doing it or why it may or may not be a problem. But my boss swears there’s a story there, so you should cover it.” Pounding my head against the wall would have been more fun.

But, over the course of six years, Wyden employed virtually every legal means he could think of to curb the NSA’s secret surveillance authority and/or bring it to light. He repeatedly sent both classified and unclassified letters to the administration requesting “the declassification of information which [he] argued was critical for a productive debate on reauthorization of the USA PATRIOT Act” and later the FISA Amendments Act. He requested a report on the number of Americans who had had their calls and emails reviewed under the NSA’s programs and he sought the declassification of FISA court opinions so that the public could better understand what the administration believed the law allowed the NSA to do. (Back in August 2009, the Obama administration responded that it would start to declassify these court opinions. But they didn’t take any action until after Edward Snowden made his disclosures.)

Wyden also offered multiple amendments to surveillance laws that would have enhanced warrant protections for Americans, limited the intelligence community’s authority to sweep up mass amounts of data on law-abiding citizens, and even ended the practice of secret legal interpretations. But, just as it’s next to impossible to get reporters to write about a program you can’t tell them about, it’s awfully hard to win a legislative debate against the intelligence community when its members get to publically contend that passing a bill will hurt national security, while you can’t offer a shred of evidence to the contrary.

If a U.S. senator acting within the rules wasn’t able to force a real debate on the NSA’s surveillance authority, what chance did a 29-year-old contractor have? Moreover, given the fact that the president spent his entire first term rejecting requests for transparency and passing up opportunities to publicly debate the issue, I think it was reasonable for Edward Snowden to assume—as I did—that the president had no intention of ever initiating such a debate.

I understand Obama’s frustration. No one likes it when someone goes over his head. It’s humiliating. But when the guy in charge appears to be a significant part of the problem, sometimes the only way to resolve the problem is to let his boss know what’s going on. And when the guy in charge is the president of the United States, that means letting the American people know what he’s been up to.