Why Eric Holder Really Cares if Edward Snowden is a "Whistleblower". [Second Draft]

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”.