National Security Exceptionalism and Whistleblowers: Thin justifications.

-- By MathewKenneally - 13 Feb 2015

A number of leakers have drawn attention to the expanding US national security apparatus and surveillance regime. The Government has prosecuted six of those leakers. The prosecutions highlight the absence of whistleblower protection for national security employee. This national security “exceptionalism” lacks or democratic coherent justification and should give way to a “public interest” defense for national security whistleblowers

The Whistleblower Protection Act protects employees that disclose information relating to Government malfeasance from retaliation. This protection does not apply to employees in national security agencies or those that disclose classified material. Persons that disclose such Information may be prosecuted under the Espionage Act. The only protection that exists is confined to disclosures to the Inspector General or House intelligence committees. There is no first amendment protection, although Mary-Rose Papendrea makes a strident argument that there should be.

Notwithstanding the lack of legal protection prosecutions have been rare. This is because prosecutions may require further disclosure of further classified information. Also, prosecutions may not serve a Government’s political interests or draw unwanted attention to the disclosed material. This might explain why Thomas Tamm and Russ Tice, who revealed the NSA's illegal wiretapping of US citizens, were not pursued. I doubt the administration wanted to put the wiretapping program to a public trial.

The absence of prosecutions should not be mistaken for benevolence. As Yochai Benkler has observed the Government punish leakers through process. Prosecutor’s level absurdly severe charges against a defendant, hindering a sensible plea bargain, before withdrawing the charges on the eve of trial. The defendant endures a period of uncertainty and stress, but the Government avoids the embarrassment of an actual trial.

The exclusion of national security employees from whistleblower protection is justified by potential risk to lives and threats to the National Security of united States.

This primary justification is easily addressed by Yoachim Benckler’s work, in which he calibrates of a public interest defense to directly address these concerns. There are a wide variety of national security leaks. History shows that very few disclosures of classified material have created an immediate risk to national security. Many, such as the Pentagon papers or the revelations in the 1970s that the US Army was spying on civil rights groups led to increased oversight and regulation. These leaks did not threaten national security; they threatened to embarrass the national security establishment.

Some leaks do pose a threat. The disclosure of the identity of covert spies places actual lives in danger. Also, traditional espionage, such as the leaking of material directly to North Korea directly threatens national security. The Government should be able to prosecute leakers that recklessly or intentionally engage in such conduct, but this justification should not extend to every disclosure of classified material.

Benkler’s proposed defense applies where (a) the disclosed material reveals incompetence or malfeasance (b) reasonable means were used to mitigate any risks posed by the disclosure; and (c) the disclosure is aimed at public discussion. Should these conditions be met, the Government could still seek to prove the leak created an imminent and specific threat to National Security. Accepting the justification that national security leaks can threaten national security a public interest defense for whistleblowers can be designed to protect only those leaks that do not pose a threat.

Proponents of national security exceptionalism may respond with a second justification: Court’s and Juries do not have the expertise to determine if a leak is in the “public interest”. The initial response is obvious: Courts and Juries deal with a many complex matters such as: torts cases relating to electricity supply; forensic evidence in murder cases; and anti-trust cases.

Second, this justification is merely a disguised argument against accountability: leaks cannot be permitted in the interests of accountability, because the Executive branch is the only institution sufficiently that can determine if it should be held accountable. It is also circular: the community only acquires the necessary information to consider the Government’s conduct once classified material is disclosed. The classification system itself entrenches the Government’s nominal expertise.

Further, “national security” has expanded in size and scope. It has been reported that over 800,000 people have top-secret clearance, and in 2012 there were 95 million decisions to classify information. As Edward Snowden revealed, this massive industry is directing its gaze inward rather than to external enemies. Snowden’s revelations revealed that the Government was secretly spying on its citizenry, in a program monitored by secret congressional committees, approved by a secret Court that had not paused to ponder its constitutionality. The public response to Snowden’s revelations leaks revealed the Government was pursuing an agenda that the made the general public uncomfortable. In these circumstances the Government “expertise” argument, is merely an anti-democratic argument.

Finally, the status quo is contrary to the rule of law. Whistleblowers are not pursued on the basis their conduct actually endangered lives. Punishment depends not on whether a person’s conduct was morally defensible, but on whether prosecution suits the whim, political needs, and convenience of the Executive. In the case of Snowden, not a single allegation of lives cost has been leveled against him. It is the Government’s embarrassment and fear of future leaks that drive prosecutions.

A public interest defense for national security whistleblowers has numerous benefits. It can strengthen the hand of any whistleblower in ensuing public debate, allowing a person in Edward Snowden’s position to argue that his disclosures were not only necessary, but also legal. It may encourage those who disclose information to consider carefully what material is in the public interest and how to disclose it to minimize any risks to the safety of others.

Of course I am under no illusions, a bill extending whistleblower protection to national security employees is unlikely to pass through the US legislative process. The argument is still worth making. Government inaction itself discloses the belief within the US political class that national security should be exempt from the rule of law and democratic scrutiny.