07/03/2013 05:51 EDT | Updated 09/02/2013 05:12 EDT

Snowden case: Has Obama broken pledge to protect whistleblowers?

The actions of U.S. National Security Agency leaker Edward Snowden, and Washington's attempt to bring the fugitive back to the U.S. to face espionage charges, have prompted some observers to accuse President Barack Obama of hypocrisy on the issue of whistleblowers.

As a presidential candidate, Obama repeatedly pledged to make openness and transparency a top priority of his administration. Obama promised to "protect whistleblowers," saying that "often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out."

"Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled," he said.

Obama reinforced that point on his first day in office, saying that for too long, there had been too much secrecy in Washington.

"The old rules said if there was a defensible argument for not disclosing something to the American people, then it should not be disclosed. That era is now over," Obama said. "Starting today every agency and department should know that this administration stands on the side, not of those who seek to withhold information, but those who seek to make it known."

Obama acknowledged that "personal privacy and national security must be treated with the care they demand," but added that "the mere fact that you have the legal power to keep something secret does not mean you should always use it."

Signed whistleblowing legislation

Last year, Obama signed into law whistleblowing legislation that would expand whistleblower rights and clarify certain protections. For example, whistleblowers could challenge the consequences of government policy decisions.

But many whistleblowing advocates, who expected big changes from the Obama administration, are now accusing the president of declaring war on those he had promised to protect.

Obama's Justice Department has charged a total of eight federal workers under the 1917 Espionage Act for leaking documents. That compares to three people charged in all the previous presidencies combined.

Snowden is the most recent to face the full force of the Justice Department. He has been charged with unauthorized communication of national defence information and wilful communication of classified intelligence, but he also faces the non-political charge of theft of government property.

National security threat?

But the fairness of the charge of hypocrisy against Obama may come down to one's definition of "whistleblower" and whether those who have been charged are nothing more than illegal leakers who have put national security at risk.

"Whistleblowers should disclose inside information about illegalities and abuse of power, but they should do it responsibly, especially when dealing with national security," Richard Moberly, an associate dean and a professor of law at the University of Nebraska College of Law, wrote in a New York Times opinion piece. "Because Snowden chose the irresponsible route, the law rightly permits his prosecution."

The Justice Department has also sought to define the difference between a whistleblower and someone who illegally leaks documents.

In a statement last year to ProPublica, the non-profit investigative journalism organization, the department insisted it "does not target whistleblowers."

It argued that there are "well-established mechanisms" to report government wrongdoing and a statute providing lawful mechanisms to report such matters in regard to classified information.

'Leaker is not the owner of such information'

"However, we cannot sanction or condone federal employees who knowingly and wilfully disclose classified information to the media or others not entitled to receive such information," it said. "An individual in authorized possession of classified information has no authority or right to unilaterally determine that classified information should be made public or disclosed to those not entitled to it. The leaker is not the owner of such information and only the owner can declassify such information."

But many who disagree are hailing people like Snowden a hero. The Government Accountability Project, which dubs itself the nation’s leading whistleblower protection and advocacy organization, slammed the Obama administration, saying it's clear that Snowden is a whistleblower.

"The Obama administration’s charge of espionage against Edward Snowden is not a surprise. This administration has continually sought to intimidate federal employees — particularly intelligence community workers — and suppress any attempt they might make to speak out against gross corruption, wrongdoing, and illegality."

It praised Snowden for disclosing information about a secret program that he reasonably believed to be illegal.

"His actions alone brought about the long-overdue national debate about the proper balance between privacy and civil liberties, on the one hand, and national security on the other," it said. "Charging Snowden with espionage is yet another effort to retaliate against those who criticize the overreach of U.S. intelligence agencies under this administration."