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Is Edward Snowden a traitor?

The condemnations are raining down upon Edward Snowden, master leaker of National Security Agency surveillance programs. They come from the expected sources: House Speaker John Boehner calls him a “traitor.” But they also come from people you might expect to be more sympathetic toward him. Legal experts Geoffrey Stone of the University of Chicago and Jeffrey Toobin of the New Yorker both believe he betrayed his country and should go to prison. So does New York Times columnist David Brooks.

Toobin writes that Snow “wasn’t blowing the whistle on anything illegal; he was exposing something that failed to meet his own standards of propriety.” Stone says, “There is no reason on earth why an individual government employee should have the authority, on his own say so, to override the judgment of the elected representatives of the American people and to decide for the nation that classified information should be disclosed to friends and enemies alike.”

Brooks: “He betrayed the Constitution. The founders did not create the United States so that some solitary 29-year-old could make unilateral decisions about what should be exposed.”

A foundation of their argument is that Snowden is not a genuine whistle-blower. And it’s true that if you divulge classified information to expose the government and you don’t reveal a clear legal violation, you’re not, under current law, a whistle-blower. The federal Whistleblower Protection Act, passed in 1989, was written to shield government employees who reveal fraud and other wrongdoing. But it is riddled with exceptions. If you work for the NSA or the CIA, you’re out of luck – no protection for you. Snowden misses on both counts: He seems to have exposed no actual crimes, and he worked for the NSA.

The Obama administration is moving to charge Snowden with disclosing classified information, probably under the Espionage Act – the anti-sedition law from 1917 that has recently become the government’s favorite weapon.

The government can count on this much: Once Snowden is charged with crimes that will surely carry a long prison sentence, it will be harder to see him as a hero. That has certainly been true for Bradley Manning.

I understand that some government secrets must stay secret. And I recognize that the decision of one employee to reveal what many of his superiors have ruled classified is inherently troublesome for people in power. But here’s my question for Snowden’s denouncers: What about Daniel Ellsberg? It’s only in retrospect that the leaker of the Pentagon Papers has acquired the status of a national icon. At the time, in 1969, Ellsberg was a man with top security clearance who was accused of betraying his government by exposing its greatest secrets.

I realize we can’t have rogue operators undermining the government at every turn. But I keep coming back to this question: How do we make room for the secret-tellers who only history can show were on the right side?

(Emily Bazelon is a Slate senior editor and writes about law, family, and kids.)

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