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.

Ordinarily, the result in such a situation would be a plea, not a dismissal. The government's hand is weak if it cannot extract a plea to anything at all. More would need to be said about such situations than that the government didn't want a 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 Yochai 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.

I would have thought that the degree of harm would be a reason adduced in the attempt to prevent publication. After publication has occurred, how does harm enter the constitutional calculus?

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.

I don't understand this last point. If there is no reason to believe legislation will pass, why is proposing legislation the best way of keeping the issue alive enough that the "political class" will consider itself on notice?

Why Eric Holder Really Cares if Edward Snowden is a "Whistleblower".

Chelsea Manning exposes US complicity in torture and the actual death toll from the Iraq war: 35 years. Edward Snowden exposes a vast domestic spying operation: banished. General Patraeus hands classified material to his lover and biographer: probation.

This apparent double standard has drawn some attention to the Espionage Act under which Edward Snowden faces charges. American law contains no public interest defense for the disclosure of classified material. The absence of any defense is justified by broad appeals to national security. In my view a public interest defense can be compatible with the imperative to preserve secrecy in defense of the nation. It is not, however, compatible with the executive's desire to prevent disclosures that undermine public confidence in the conduct of national security.

National security poses a challenge to the liberal state. War demands secrecy, however, the people cannot vote on policies they know nothing about. This is of particular relevance to the United States, a country with an expansive foreign policy. In the early 21st Century the war on terror precipitated an expansion in the national security apparatus, and a reduction in transparency. Over 800,000 people have top-secret clearance, and in 2012, 95 million decisions were made to classify information. A considerable amount of our Government’s conduct is now beyond our scrutiny.

In the past, the disclosure of classified material has enabled the public to hold the executive accountable for national security policy. The Pentagon papers exposed that citizens had been misled about the nature of the Vietnam War. Christopher Pyle's disclosure that the US Army was spying on domestic civil rights groups sparked the Church committee hearings. By contrast leaking the identity of a covert operative can place actual lives in danger without any transparency benefit. Conventional espionage: leaking material directly to an adversary undermines security without any benefit to public discussion.

Yochai Benkler has designed a defense to balance these tensions. His defense would apply where (a) the disclosed material reveals incompetence or malfeasance (b) reasonable means were used to mitigate any risks posed by disclosure; and (c) the disclosure is aimed at public discussion. It could be a complete defense, or a mitigating factor.

There are arguments that such a defense is incompatible with national security policy. First it is argued disclosure of classified material, even when in the public interest, must be punished to deter future leaks.

However, Benkler’s test does not disarm the executive branch. The risks for those that leak classified material would remain high. A defense is no guarantee of acquittal. A whistleblower faces the risk a jury will find against her. The criminal process, and anxiety associated with it, can itself be punishment. An aggressive prosecution ending in acquittal, a mitigated sentence, or a plea does not signify toleration. Prosecution, and threat of prosecution, could still serve as a tool of general deterrence.

The state has non-criminal means of punishing leaks. The disclosure of classified material would likely end a person’s career in government; subject them to public derision, and hamper her ability to work in any industry that values secrecy. For example, DOJ employee Jesslyn Radack revealed that terror suspect John Walker Lindh was being denied his right to counsel. Her career in government ended abruptly and the DOJ sought to have her disciplined by bar associations.

Further, a public interest defense could deter reckless disclosures. To stay within the scope of the defense whistle-blowers would be incentivized to confine their disclosure to minimize risks of harm.

It is also argued that only the executive has that relevant expertise to assess whether a disclosure minimized harm. Juries and Courts lack the ability to make judgments about national security. This is “executive deference” logic that pervades national security law. It is a circular argument against accountability. For example, juries cannot assess the issues associated with the NSA surveillance program, because the program is classified. Juries are able to assess complex cases in civil matters such as torts. There is no reason it cannot assess whether material leaked served public discussion and was confined to limit harm.

It is argued the national security state must enforce its laws. A prohibition against disclosing classified material is meaningless, if violations can be excused where an individual acts in good conscience. Attorney General Holder argued that whether Snowden is a “whistle-blower” or "traitor" is irrelevant; he broke the law and should be held accountable.

However, enforcement of the rules against disclosing classified material is, as David Pozen has observed, notoriously lax. The US Government “leaks like a sieve”. As Pozen documents, executive officials and congressional representatives leak classified information to the media as part of business as usual. Impunity is not the exception it is the norm.

Obama’s “war on whistleblowers” is a mere six prosecutions. It includes, Snowden and Chelsea Manning, as well as John Kiriakou who revealed the CIA torture program. Each of these challenged the integrity of national security policies. By contrast General Patraeus, who was treated leniently was motivated by lust and self-aggrandizement, not a desire to challenge the integrity and moral legitimacy of defense policies.

I suspect this apparent double standard explains the politics. The state is unwilling to codify a public interest defense because disclosures in the public interest are precisely the disclosures the executive wishes to punish and deter. The disclosure of material that challenges the integrity of government policy is more likely to fall within the scope of the defense.

Benkler's public interest defense for national security whistle-blowers can reconcile tensions between secrecy and transparency. The dearth of prosecutions for leaks of classified materials casts doubt on claims that a public interest defense would undermine the Government’s capacity to deter leaks and maintain absolute secrecy. Rather, the state aggressively seeks to punish those leaks that undermine the legitimacy of government policy. Contrary to his public declarations, Attorney-General Holder’s primary concern is not that Edward Snowden broke the law, but that he is a “whistleblower”, or in the eyes of the executive a “traitor”.