When a three-judge federal appeals court ruled Thursday that the National Security Agency's telephone metadata snooping program was illegal, many took the occasion to say that the decision vindicated Edward Snowden, the former NSA contractor who disclosed the surveillance to The Guardian in 2013.

Glenn Greenwald, the journalist who originally broke the telephone spying story with Snowden's documents, tweeted, "Maybe someone who reveals a secret program that multiple federal judges say is ILLEGAL is a whistleblower who deserves gratitude—not prison." Stephen Kohn, the executive director of the National Whistleblower Center said in a statement that "[w]hether you supported or opposed Edward Snowden's disclosure of this massive privacy violation committed by the NSA, the court's ruling today demonstrates the importance of whistleblowing."

Those are the comments we'd expect from these and others who believe Snowden—who is living in exile in Russia and faces espionage charges if he returned to the US—is a whistleblower. The same could be said for those on the other side of the debate, who point out that Snowden disclosed many more US surveillance secrets beyond the telephone dragnet.

"Mr. Snowden is accused of leaking classified information and faces felony charges here in the United States," Ned Price, a National Security Council spokesman, said. "He should return to the US as soon as possible, where he will be accorded full due process and protections."

But a new, unlikely voice has entered the debate about whether Snowden is a whistleblower or traitor: Judge Robert Sack, one of the three judges on the 2nd US Circuit Court of Appeals that declared Thursday that the dragnet "exceeds the scope of what Congress has authorized" (PDF).

Sack didn't outright use the term whistleblower, but he came close, writing in a concurring opinion that the litigation on the dragnet "calls to mind the disclosures of Daniel Ellsberg that gave rise to the legendary 'Pentagon Papers' litigation." Ellsberg, now a celebrated whistleblower, was a military analyst who in 1971 leaked embarrassing US documents about the Vietnam War. He was charged with espionage—charges that were dismissed amid allegations of government misconduct.

Sack, a President Bill Clinton appointee and former Wall Street Journal attorney, wrote in his concurring opinion that "the 'leak' by Edward Snowden" had "led to this litigation."

Then in a footnote, next to the word "leak," the judge said he put quotation marks around the word to refer to how he viewed the term: