When Does Whistleblowing Become Espionage?

Introduction

If we are to reap the benefits of being connected (and there are many), we’ll need to endure the downside of losing much of our privacy.  Privacy loss seems most commonly attributed to an increased need for security to protect citizens from acts of terrorism, but I think reduced privacy (in terms of all online data collected and stored) is going to be a fact of modern life no matter what — correlating these various scattered data bits CAN be done so, sooner or later, it WILL be.  (Terrorism threats merely allow it to come sooner rather than later.)

Governments obviously wish to keep secrets beyond those required for security.  Most likely, secrets are occasionally for the purpose of avoiding embarrassment or attempts by elected officials to avoid losing popular support.  Frequently, secrets are kept to avoid prosecution and subsequent punishment for misdeeds.

Individuals have the same needs as countries to keep secrets but most people have far fewer resources with which to protect their privacy.
 

Definitions

Espionage or Spying involves a government or individual obtaining information considered secret or confidential without the permission of the holder of the information.  Espionage is inherently clandestine; it’s taken for granted that it is unwelcome and (in many cases) illegal and punishable by law.  It’s a subset of intelligence gathering, which otherwise may be conducted from public sources using perfectly legal and ethical means.  It’s crucial to distinguish espionage from intelligence gathering, as the latter often merely collates open-source information.

Espionage is often part of an institutional effort by a government or commercial concern, however the term is generally associated with state spying on potential or actual enemies primarily for military purposes.  Spying involving corporations is known as industrial espionage.

One of the most effective ways to gather data and information about an enemy (or potential enemy) is by infiltrating the enemy’s ranks.  This is the job of the spy (espionage agent).  Spies bring back all sorts of information concerning the size and strength of an enemy army; they also find dissidents within enemy forces, influencing them to defect.  In times of crisis, spies can be used to steal technology and to sabotage an enemy in various ways.  Counterintelligence operatives can feed false information to enemy spies, protecting important domestic secrets and preventing attempts at subversion.  Nearly every country has very strict laws concerning espionage, and the penalty for being caught is often severe.  However, benefits that can be gained are generally great enough that most governments and many large corporations make use of it to varying degrees.

However espionage laws are also used to prosecute non-spies.  In the United States the Espionage Act of 1917 was used against socialist politician Eugene V Debs (at that time the act had much stricter guidelines and banned speech against military recruiting amongst other things).  The law was later used to suppress publication of periodicals.  In the early 21st century, it’s used to prosecute whistleblowers, as well as officials who communicate with journalists for innocuous reasons.

Whistleblowers are just like umpires or traffic police who blow the whistle when they observe a foul being committed on the field or someone rushing through, violating the traffic rule.  Their act is based on inside information and documented evidence they have as a member of the organisation.  All organisations are expected to implement a whistleblowing policy in these modern days indicating who’s covered under the policy, providing non retaliation provisions, and pointing out confidentiality and process.

The formal definition of whistleblowing is speaking out in the public interest, typically to expose corruption or dangers to the public or environment.  However, a major distinction needs to be drawn between internal and external whistleblowing.  The first occurs when an employee airs his or her complaint internally, through designated channels in the organisation.  The latter occurs when an employee blows the whistle outside the organisation to the media, law enforcement officials, or some other public entity.  Under Sarbanes Oxley, “A whistleblower is someone, usually an employee, who reports an employer who has broken the law to an outside agency.”  Under this act, whistleblowers are protected by federal and state laws.  Employers may not retaliate against them for reporting misconduct.  Whistleblowers may not be fired or otherwise mistreated, and in some instances the government may reimburse them for costs incurred as a result of reporting.

Whistleblowing is a conflicting subject in terms of employee loyalty.  On one side whistleblowing can be seen as disloyal and on another, loyal.  It is often assumed that employees have a vow to protect the dealings of the organisation.  Disloyalty arises when the person has ulterior motives.  He may not be seeking to help the organisation, but to manipulate the system in order to gain benefits like incentives, recognition, or promotion.  Some researchers argue that it’s impossible to associate loyalty with an abstract entity as the organisation doesn’t have a mind of its own, instead being comprised of individuals working towards the same goal.  Loyalty depends on ties that demand self-sacrifice with no expectation of reward, for example, the ties of loyalty that bind a family together.  Some companies have that.
 

History

The Espionage Act of 1917 originally prohibited any attempt to interfere with military operations, to support US enemies during wartime, to promote insubordination in the military, or to interfere with military recruitment.  In 1919, the US Supreme Court unanimously ruled that the act didn’t violate the freedom of speech of those convicted under its provisions.  The constitutionality of the law, its relationship to free speech, and the meaning of the law’s language have been contested in court ever since.

Among those who’ve been charged with offenses under the Act were communists Julius and Ethel Rosenberg, Pentagon Papers whistleblower Daniel Ellsberg, alleged Cablegate whistleblower Bradley Manning, and NSA leaker Edward Snowden.  The original Espionage Act bill gave the president the power to censor publication of material that he deemed potentially useful to the enemy.  The censorship provision faced stiff opposition from the press and from across the political spectrum.  Opponents included Republicans from the progressive wing of the party, as well as President Woodrow Wilson’s constant critic from the party’s conservative wing, Senator Henry Cabot Lodge.  Despite a direct appeal by Wilson to Congress to enact this provision, Congress removed it from the bill as freedom of the press was considered too important.  Wilson was denied language in the Act authorising power to the executive branch for press censorship, but Congress did include a provision to block distribution of print materials through the Post Office.

Congress made it a crime:

• To convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies.  This was punishable by death or by imprisonment for not more than 30 years or both.  [So a man could be sentenced to prison for up to 30 years, then executed?  That seems excessive.]
• To convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies when the US is at war, to cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty in the military or naval forces of the US, or to willfully obstruct its recruiting or enlistment service.  This was punishable by fine, by imprisonment for not more than 20 years, or both.

The Act also gave the Postmaster General authority to impound or to refuse to mail publications that he determined to be in violation of its prohibitions.  The Act also forbade the transfer of any naval vessel equipped for combat to any nation engaged in a conflict in which the US was neutral.  Seemingly uncontroversial when the Act was passed, this later became a legal stumbling block for the administration of Franklin Roosevelt, when he sought to provide military aid to Great Britain before the US entered World War II.

The most controversial sections of the Act were repealed in 1921.

Under the Obama administration, persons charged under the Espionage Act have been:

• Shamai Leibowitz — former FBI Hebrew translator, who pleaded guilty to leaking classified information before a judge who later said he didn’t know exactly what Leibowitz had disclosed — just that it was a “very, very serious offense.”  Leibowitz was sentenced to 20 months in prison for leaking 200 pages of transcribed conversations recorded by FBI wiretaps of the Israeli embassy in Washington.  He released the transcripts because of Israel’s aggressive attempts to influence public opinion in the US, and because he worried that Israel would take what he saw as the potentially disastrous step of bombing nuclear facilities Iran.
• Thomas Drake — former senior executive at the NSA, who was charged for the unauthorised “willful retention” of classified documents.  Drake’s problems with the agency started when he found himself on the minority side of a debate about two new tools for collecting intelligence from digital sources.  One programme, called Trailblazer, was being built by an outside contractor for $1.2 billion; the other, known as ThinThread, was created in-house by legendary crypto-mathematician Bill Binney for about $3 million.  Drake thought Trailblazer was a useless waste of taxpayer funds.  In the wake of the attacks of 11 September 2001, the NSA, with Bush’s approval, began illegal warrantless surveillance of American citizens.  This didn’t sit well with Drake (during his time doing surveillance work in the Air Force, he was taught that it was imperative to protect American privacy).  Drake wanted to go to the press with his concerns about privacy, but decided instead to complain only about NSA’s waste of funds for unnecessary software — just the unclassified information.  He thought he’d lose his job but at least he wouldn’t end up in jail.  But no — a few months later, the FBI arrested him.  Drake at one point faced up to 35 years in prison for various charges, most of which were dropped.  He eventually pleaded guilty to a misdemeanor for exceeding authorised use of a computer.  He later won the National Press Club Ridenhour Prize, which seeks to reward individuals who have courageously taken a public stand against injustice, corruption and incompetence.
• Stephen Kim — specialist in nuclear proliferation, who worked as a contractor for the State Department and pleaded not guilty to charges of leaking information about North Korea to Fox News.  He was indicted, but the case hasn’t been brought to trial.  Fox journalist James Rosen, with whom Kim had been in touch in the past, reported in 2009 that North Korea would likely test another nuclear missile in reaction to a pending United Nations Security Council resolution condemning its nuclear tests.  The Justice Department said Kim was Fox’s source.
• Jeffrey Sterling — pleaded not guilty to the charge that he leaked information about a US plan to sabotage Iran’s nuclear operations to the New York Times.  Sterling said he had repeatedly been passed over for advancement because he’s black — a superior once told him he wasn’t an ideal spy because “you kind of stick out as a big black guy.”  Sterling sued the CIA for racial discrimination in 2000.  He maintained his innocence of any charges and, as of summer 2012, the Justice Department says it has “effectively terminated the case.”
• Pfc Bradley Manning — admitted to leaking 700,000 government documents to Wikileaks, including videos of air strikes in Afghanistan and Iraq in which civilians were killed.  Manning said one of the videos, from 2007, was particularly disturbing to him — it showed American Apache helicopters killing a dozen people in Baghdad, including two Reuters journalists, then opening fire on a van that arrived to help the victims.  Manning noted the “seemingly delighted blood lust” of the airmen.  A military judge ruled that for Manning to be convicted under the Espionage Act, the prosecution would have to prove that he had “reason to believe” that the files could be used to harm the US or aid a foreign power.  Manning said he thought carefully about the information he was releasing, and felt nothing he leaked would cause harm.
• John Kiriakou — former CIA agent, who was sentenced to 2½ years in prison for giving journalists the names of two former colleagues who interrogated detainees using harsh practices including waterboarding.  Kiriakou had left the CIA and was working at the auditing firm Deloitte.  “Like a lot of Americans, I’m involved in this internal, intellectual battle with myself weighing the idea that waterboarding may be torture versus the quality of information that we often get after using the waterboarding technique, and I struggled with it,” he said in his ABC interview.  He suggested that the US should abandon the technique because “we’re Americans and we’re better than this.”
• James Hitselberger — a Navy contract linguist, who was charged under the Espionage Act with unauthorised retention of national defense information for allegedly taking classified documents off the military base where he was working at as a translator in Bahrain.  The documents, discussing gaps in US intelligence in Bahrain, civil unrest in the country, and the location of US forces in the region, were allegedly sent to “the Hoover Institute, the conservative think-tank located on the campus of Stanford University.”  Hitselberger remains in jail as his trial continues.
• Edward Snowden — was charged with “unauthorised communication of national defense information” and “willful communication of classified communications intelligence information to an unauthorised person,” both of which are felonies.

Prior to the Obama administration, enforcement varied widely.  By the end of 1920, the Espionage Act had fallen into relative disuse; prosecutions were far less numerous during World War II than they had been during World War I.  A front page story in the Chicago Tribune implied that the US had broken Japanese codes, which might have prompted the Japanese to change their codes and destroy any advantage the US had gained through successful cryptanalysis, so the newspaper was brought before a Grand Jury, but proceedings were halted because of government reluctance to present a jury with highly secret information necessary to prosecute the publishers (there was also concern that a trial would attract undue attention to the case).  In 1950, during the McCarthy Period, over President Harry S Truman’s veto, Congress modified espionage law.  One addition removed the “intent” to harm or aid requirement and made “mere retention” of information a crime no matter what the intent.  This covered even former government officials writing memoirs.  In 1969 the “clear and present danger” test was changed to the “imminent lawless action” test, a stricter test of the inflammatory nature of speech.  In 1973 a Columbia Law Review article entitled “The Espionage Statutes and Publication of Defense Information” found the law to be poorly written and vague, with parts probably unconstitutional.  In 1979–80, the notion of bad faith was seen as a requirement for conviction; an “honest mistake” was said not to violate the law.

These are among those who leaked information and were charged under the Espionage Act prior to Obama:

• Daniel Ellsberg and Anthony Russo — a former US military analyst and his research assistant; Ellsberg, while employed by the RAND Corporation, precipitated a national political controversy in 1971 by allowing some copies of the Pentagon Papers documents (a top-secret study of US government decisionmaking in relation to the Vietnam War) to circulate privately, including among scholars at the Institute for Policy Studies (IPS).  Ellsberg also shared the documents with New York Times correspondent Neil Sheehan under pledge of confidentiality.  Sheehan broke his promise and built a scoop around what he’d received directly from Ellsberg and from his contacts at IPS.  Ellsberg was awarded the Right Livelihood Award in 2006.
• Samuel T Morison — a Navy civilian analyst, who was charged under President Ronald Reagan.  Morison leaked photographs of Soviet ships to alert America to what he perceived as a new threat.  The prosecution of Morison was used as part of a wider campaign against leaks of information as a “test case” for applying the Act to cover the disclosure of information to the press.  He was convicted on 2 counts of espionage and 2 counts of theft of government property and sentenced to 2 years in prison, “the only [American] government official ever convicted for giving classified information to the press” up to that time.  President Bill Clinton pardoned him on the last day of his presidency, despite CIA opposition.
• Dr Wen Ho Lee — Los Alamos National Laboratory (LANL) scientist, who was indicted under the Act.  National security professionals later said he was a “scapegoat” in the government’s quest to determine if information about the W88 nuclear warhead had been transferred to China.  Dr Lee had made backup copies at LANL of his nuclear weapons simulations code to protect it in case of a system crash.  As part of a plea bargain, he pleaded guilty to one count under the Espionage Act; the judge apologised for having believed the government and Lee later won more than $1 million in a lawsuit against the government.
• Lawrence Franklin (along with AIPAC lobbyists Steve J Rosen and Keith Weissman) — Pentagon analyst, who was charged under President George W Bush.  Franklin leaked information on Iran to the American Israel Public Affairs Committee (AIPAC).  He pleaded guilty to conspiracy to disclose national defense information to lobbyists and an Israeli government official.  He was sentenced to more than 12 years in prison, later reduced to 10 months of home confinement and community service.  Franklin wrote that his objective was “to halt the rush to war in Iraq — at least long enough to adopt a realistic policy toward an Iran bent on doing us ill”, not “to leak secrets to a foreign government”.  (Charges against Rosen and Weissman were dropped.)
• Kenneth Wayne Ford Jr — who was indicted under the Espionage Act for allegedly having a box of documents in his house after he left NSA employment around 2004.  He was sentenced to 6 years in prison in 2006.

New York Times columnist Anthony Lewis wrote in 1985 that “Espionage and leaks are wholly different things in the American tradition.  Spying strengthens foreign powers.  Leaking, an everyday occurrence in Washington, is part of the process that enables citizens to judge the policy of their government.  We think that process strengthens, not weakens America.”  (However, this was pre-Internet.)

“The hallmark of a truly effective internal security system,” Justice Potter Stewart of the Supreme Court said in 1971, “would be maximum possible disclosure, recognising that secrecy can best be preserved only when credibility is truly maintained.”  In other words, the government should focus on a limited area of true secrecy instead of using the blunderbuss approach and trying to stamp everything secret.  In that case, the government wastes resources and weakens credibility for effort to protect important secrets.

At the outset, it is worth noting that Congress hasn’t been able to pass the equivalent of an official-secrets act that would authorise the punishment of government insiders for the mere revelation of classification information, regardless of its content, the harm it might have on national security, or the intent of the leaker.  In vetoing one attempt to pass such legislation, President Clinton noted that the law failed to strike the appropriate balance between the need to protect national security secrets and the need for the free flow of information in a democracy.
 

Concerns

Should government employees ever have a right to disseminate classified national security information to the public?

As a general matter, of course, the answer is “no.”  The central purpose of classifying information is to keep that information secret.  But what if the information pertains to “unlawful secrets,” and the individual in question has exhausted all possible non-public remedies — and to no avail?  Are there any circumstances in which the law enables the government employee to come forward?  Should there be?  It’s been conclusively shown that any law or regulation which has no penalty for breaking it is useless.  How can you distinguish between whistleblowing and espionage when the relevant laws are part of the same system?

Because of the broad language of the Espionage Act and the narrow language of certain whistleblower laws, a government employee would enjoy no statutory whistleblower protection whatsoever from either an adverse employment action or a criminal prosecution for disclosing classified national security information.  Should there ever be circumstances where federal law entitles a government employee in possession of classified information about illegal governmental activity to publicly disclose that information (even as a last resort)?

Even where they apply, virtually all relevant statutory whistleblower protections turn on the requirement that the disclosure itself not be illegal.  The Espionage Act, however, includes a broad and sweeping prohibition of the dissemination of classified national security information “to any person not entitled to receive it.”  Thus, it appears that there can never be a “legal” public disclosure of classified national security information under the Espionage Act, so there’s no statutory whistleblower protection for such disclosures.

Does the First Amendment ever provide a defense to adverse employment actions or criminal prosecution based upon the disclosure of classified national security information?  The answer is “yes, though extremely rarely.”

There might be a need to allow some release of classified national security information when internal whistleblowing is insufficient, say when the relevant programme has been approved at the highest levels of the Executive Branch, or when there are reasons to doubt the impartiality of the relevant Inspector General or the Special Counsel.  And disclosure to the House and Senate intelligence committees is a feasible option only if those committees have the authority to act upon the information they receive — a debatable point.  Do we want an employee in that situation to have to make a moral (as opposed to legal) choice?  Such a legal regime gives pause to even the most altruistic and well-intentioned whistleblowers.  And that may be the biggest problem.

Public employees are often the very ones likely to have informed opinions as to the operations of their public employers, operations which are of substantial concern to the public.  Were they not able to speak on these matters, the community would be deprived of informed opinions on important public issues.  The interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it.

A public employee’s speech must touch on a matter of “public concern,” defined as “something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.”  Under that definition, it stands to reason that several of the more important national security “leaks” and/or whistleblowing since 11 September would easily constitute “matters of public concern.”  But that conclusion doesn’t compel the result that such speech is entitled to First Amendment protection.

When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.  Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might enjoy as a private citizen.  Where classified national security information is concerned, the stopping point is clear: National security secrets are, by definition, information to which the average private citizen does not have access. 
Justice Anthony Kennedy says that “Exposing governmental inefficiency and misconduct is a matter of considerable significance.”  Such an interest could be adequately vindicated without First Amendment protection: “The dictates of sound judgement are reinforced by the powerful network of legislative enactments — such as whistleblower protection laws and labour codes — available to those who seek to expose wrongdoing …. These imperatives, as well as obligations arising from any other applicable constitutional provisions and mandates of the criminal and civil laws, protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions.”
 

It’s worth pointing out that the administration’s emphasis on secrecy comes and goes depending on the news.  Reporters were immediately and endlessly briefed on the “secret” operation that [purportedly] successfully found and killed Osama bin Laden.  And the drone programme in Pakistan and Afghanistan comes to light in a very organised and systematic way every time there’s a successful mission.  There’s plenty of authorised leaking going on, but this particular boat leaks from the top.  Leaks from the decks below, especially ones that might embarrass the administration, are dealt with very differently.
 

Complicating Factors

The United States Foreign Intelligence Surveillance Court is a US federal court established and authorised under the Foreign Intelligence Surveillance Act of 1978 (FISA).  The court oversees requests for surveillance warrants against suspected foreign intelligence agents inside the US by federal law enforcement agencies, primarily the National Security Agency (NSA) and the FBI.  In 2013, a top secret warrant issued by this Court was leaked to the media.  That warrant, which ordered Verizon to provide a daily feed of all call detail records — including those for domestic calls — to the NSA, sparked a public outcry of criticism and controversy.

Because of the sensitive nature of its business, the court is a “secret court” — its hearings are closed to the public.  While records of the proceedings are kept, they’re unavailable to the public, although copies of some records with classified information redacted have been made public.  Usually only government attorneys are permitted to appear before the court.  Each application for one of these surveillance warrants (called a FISA warrant) is made before an individual judge of the court.  If an application is denied by one judge of the court, the federal government is not allowed to make the same application to a different judge of the court, but may appeal to the United States Foreign Intelligence Surveillance Court of Review.  Such appeals are rare — for one reason, it’s rare for FISA warrant requests to be turned down.  During the 25 years from 1979–2004, some 18,742 warrants were granted, while just 4 were rejected.

There has been growing criticism of the court since 11 September, partly due to the fact that the court sits ex parte — in other words, in the absence of anyone but the judge and the government present at the hearings.  This, combined with the minimal number of requests that are rejected by the court, has led experts to characterise it as a rubber stamp (former NSA analyst Russell Tice called it a “kangaroo court with a rubber stamp”).  FISA judges decide the momentous questions of whom the government may spy on and how.  Their power is awesome, and their word is final.

Potential FISA court judges must be vetted by the security agencies they’ll monitor; they and their families may also be under continued surveillance by the same.  They may have family, friends and former business associates who have a career or other financial interest in private firms and government agencies which directly benefit from their decisions and from increased surveillance (in other words, biases).  It’s possible that the constant surveillance of these judges, their family, friends and former business associates makes the judges susceptible to an implicit form of blackmail or self-censorship in their decisions.  It’s also unclear who can remove a FISA court judge and for what criteria.  This leads to a strong potential conflict of interest on the court which may distort its decisions.  It’s unclear whether any FISA court judges have ever recused themselves from a decision.

All FISA court judges are appointed by the chief justice of the Supreme Court, who is appointed for life.  Chief Justice John Roberts is one of 9 votes on the Supreme Court, but he has remarkably large powers when it comes to national security.  When the court was founded, it was composed of 7 federal districts, each serving a 7-year term, with one judge being appointed each year.  In 2001, the USA PATRIOT Act expanded the court from 7 to 11 judges, and required that at least 3 of the Court’s judges live within 20 miles (32 kilometres) of the District of Columbia.  No judge may be appointed to this court more than once, and no judge may be appointed to both the Court of Review and the FISA court.  Roberts’s nominations to the FISA court are almost exclusively Republican.  Critics contend the FISA court is too compromised to conduct genuine oversight.  It meets in secret, and the presiding judge hears only the government’s argument before issuing a decision that can’t be appealed or even reviewed by the public.  “Like any other group that meets in secret behind closed doors with only one constituency appearing before them, they’re subject to capture and bias.  (This is clearly less than optimal — power is out of balance; the “uneasy peace” is gone.)
 

Ultimately, regardless of who has the better argument about the viability of whistleblower protections in general, the salient question here is the availability of such protections to federal employees in possession of classified national security information.  The relevant statutes provide no protection for public disclosure of such information, no matter how illegal the governmental conduct is nor how grave is public concern.  A remaining question, then, is whether the provisions for nonpublic disclosure are sufficient.

With respect to the US Whistleblower Protection Act (WPA), the first serious issue is easy enough to describe: Most government employees who might lawfully be in possession of classified national security information are not even covered by the WPA, which expressly excludes from its scope employees of “the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Imagery and Mapping Agency, the National Security Agency, and, as determined by the President, any Executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities.”  Thus, for the vast majority of federal employees in possession of classified national security information, the WPA is simply inapplicable.

Further, the WPA authorises disclosures “to the Special Counsel or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures of information.”  The harder question is what happens then?

With respect to any disclosure of information which involves foreign intelligence or counterintelligence information, if the information at issue relates to foreign intelligence or counterintelligence information, the Inspector General may only pass along the information to the National Security Advisor and certain members of Congress.  Disclosure to the Inspector General or Special Counsel might therefore prove unproductive in cases where the “unlawful secret” has been approved at the highest levels of federal government — as is true with respect to the wiretapping programme.  It could also occur in cases where the Inspector General is failing to perform his statutory responsibilities, a charge that is not as unrealistic as one might previously have hoped.

All this is not to say that disclosure to the Inspector General or Special Counsel won’t work in the vast majority of cases.  But the cases where it’s the least likely to be effective are arguably the cases where whistleblowing is most important — where government employees are involved in an illegal programme that has approval from the most senior officials in the relevant agencies and departments.

Largely with that in mind, Congress in 1998 enacted the Intelligence Community Whistleblower Protection Act (ICWPA), stating, “Congress, as a co-equal branch of Government, is empowered by the Constitution to serve as a check on the executive branch; in that capacity, it has a ‘need to know’ of allegations of wrongdoing within the executive branch, including allegations of wrongdoing in the Intelligence Community.”

Thus, the ICWPA empowers certain employees of certain agencies to report either to Congress or to the Inspector General of the Department of Defense if it is a matter of “urgent concern,” including:

(A) A serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the funding, administration, or operations of an intelligence activity involving classified information, but does not include differences of opinions concerning public policy matters.

(B) A false statement to Congress, or a willful withholding from Congress, on an issue of material fact relating to the funding, administration, or operation of an intelligence activity.

But the ICWPA has its own limitations. First, and most importantly, its central provisions appear to apply to employees of only 4 agencies — the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Reconnaissance Office, and the NSA.  The statute also provides procedures for Central Intelligence Agency (CIA) employees to report abuses and violations of the law to the CIA Inspector General, but that still leaves countless federal employees unprotected.  Second, even in those cases where the ICWPA does apply, disclosure to the House and Senate intelligence committees may not accomplish anything — as the controversy over the government’s waterboarding of various non-citizens detained as “enemy combatants” demonstrated, even when certain members of Congress are briefed on a classified — and potentially unlawful — governmental programme, they may not be legally entitled to act upon that information, at least publicly.

One of the reasons the Democratic members briefed on the controversial interrogation techniques did not publicly reveal what they knew is because they believed federal law prevented them from doing so.  But, to the contrary, the Constitution’s Speech and Debate Clause would protect any member of Congress publicly revealing classified information on the floor of the House or Senate.  However, the mere fact that this is an open question suggests that disclosure to Congress — and to the intelligence committees in particular — will not necessarily provide a remedy for the “unlawful secret” at issue.

As a result, employees of various national security agencies have continued to call for further — and less convoluted — whistleblower protections.  Where a government employee is in possession of classified national security information about a potentially illegal governmental programme approved at the highest levels of the federal government, the likelihood that disclosure pursuant to the WPA or ICWPA (to the extent they apply) will actually allow for meaningful oversight of the programme is fleeting, at best.

Without national security whistleblowers, we would still be in the dark about various controversial aspects of the US government’s conduct in the war on terrorism, PRISM, the “black sites,” the waterboarding of terrorism suspects, and so on.  If one believes that these disclosures have been a necessary and indispensable contribution to the ongoing debate, then the absence of protection for similar disclosures in the future under either the Constitution or federal statutory law should give everyone — and not just the next government employee in the wrong place at the wrong time — serious cause for concern.
 

Conclusion

Executive branch insiders who spill secrets without authorisation embody a necessary paradox of the constitutional design.  The executive branch is structured to run energetically, and, when necessary, with secrecy.  Yet it is also built not just to withstand, but to facilitate, occasional leaks.  The founders wanted no part of a presidency staffed with “minions and favourites,” persons whom the president could use as a “screen … [to] hide … his negligence, or inattention … [or] criminality.”  This paradox is an aspect of the separation of powers, one that the First Amendment is designed to support.  None of this is to deny that some secrets are very necessary, that some leaks deserve to be prosecuted, or that the executive branch has a constitutionally legitimate interest in managing its operations and employees.  But these points must be placed in perspective.  Some secrets are necessary, but many — perhaps most, if experts from across administrations and parties are to be believed — are not.  Indeed, unnecessary secrecy itself can harm the national interest, including national security.  More to the point, the notions that the executive alone can and must decide what shall be secret and what shall be known, and that checks on free speech can turn on these designations, are a bridge too far.

By all means, consider Snowden a hero, a traitor or a complex individual with a mixture of motives and interests.  Lots of opinions about Snowden are valid.  He is a necessarily polarizing figure.  The information he revealed speaks to some of the most basic questions about the boundaries between the citizen and the state, as well as persistent and real anxieties about terrorism.  What isn’t valid is the blithe assertion, absent evidence, that the former NSA contractor actively collaborated with America’s enemies.  Snowden made classified information about widespread surveillance available to the American public (albeit on the Internet where anyone in the world could read it).

A giant, über-secret private company that is ultimately answerable to no one but that has access to anything you might say or post on the Internet (including what you might do to try to stop it), while also being able to capitalise on access to literally priceless financial secrets via both consulting and access to markets soon evolves into a monstrosity.  Once such a thing has sunk its claws in deep enough, it’s very difficult to pull it off — ever.  In the days following Snowden’s disclosures, many people shrugged about mass surveillance.  “I’m not a terrorist,” they said.  “Why should I care?”

You should care because, after mapping your friends and your phone calls, and your friends’ friends and their phone calls, and their travels, and their relatives, the government may conclude that you are a threat of some kind.  Or that it would be politically convenient to portray you as one.  Or that it would be advantageous to charge you with treason for giving secrets to China, even if you didn’t.  (And you can’t prove you didn’t because the charges are made by faceless accusers based on information you’ve never seen and have no right to see.)  Okay, it isn’t likely.  Not today.

We all need to know that someone unbiased is watching our watchers, keeping them in check.  But both governments and persons need at least a small zone of privacy surrounding them on a day-to-day basis.  It is there, through trial and error, that both governments and people develop character and a necessary sense of responsibility for actions undertaken.

The most important takeaway is this: The evolution of the human race requires tight connections and aggregating into specialisations (for comparative advantage efficiencies).  Decide on the small part of your life that requires jealous preservation of privacy and devise the best way to keep it safe.  The rest, being public, needs constant monitoring to ensure the best evaluation (by outsiders) of actions that result from those lessons learned in private.  Yes, surveillance has increased.  Yes, I think it’s inevitable.  Yes, I think it will slowly become a bigger problem than it appears to be today.  Maintain vigilance!  Once privacy is lost, it’s almost impossible to ever get it back.
 

 
An important aspect of personal autonomy is the right to shape one’s public and private persona
by choosing when to tell the truth about oneself, when to conceal, and when to deceive.
Of course, lies are often disbelieved or discovered, and that, too, is part of the push and pull of social intercourse.
But it’s critical to leave such interactions in private hands, so that we can make choices about who we are.
How can you develop a reputation as a straight shooter if lying is not an option?

— Bruce Schneier
 

Everything Else