Report faults U.S. treatment of whistleblowers
A new report from a group of prominent writers and authors argues that the U.S. government is doing too little to protect whistleblowers critical to informing the public about controversial activities like phone and email surveillance as well as hidden foul-ups in federal programs.
The thrust of the 42-page analysis from PEN American Center is not that the government isn’t doing anything to try to protect those blowing the whistle on malfeasance, but that the policies and laws are widely varied and contain conspicuous gaps certain to undermine the confidence of many considering bringing improprieties to public knowledge.
“There are at least 57 U.S. federal laws with whistleblower or witness protection provisions and these laws are not consistent,” the report says.
The PEN report (posted here) argues that the public debate over the actions of Edward Snowden in revealing National Security Agency surveillance programs illustrates how many politicians, public officials and members of the public believe whistleblower protections to be more robust than they actually are.
Many have faulted Snowden for not using official government channels to complain about the programs he thought went too far. Former Secretary of State Hillary Clinton said at a Democratic presidential debate last month that, instead of leaking, the computer specialist “could have gotten all the protections of being a whistleblower.”
But as the report notes, that doesn’t appear to be so. For one thing, Snowden worked for an NSA contractor, not the agency directly. The Obama Administration has put in place policies to protect the security clearances of whistleblowers who work for contractors, but a senior intelligence community officials acknowledged last week that protecting the jobs of such individuals would likely require legislation.
“The problem is if you have a contractor that contractor isn’t working for the government and so the government doesn’t, straight out, have the authority to say whether that person can be fired. That’s up to the contractor,” Office of Director of National Intelligence General Counsel Robert Litt said at an American Bar Association conference in Washington. “Providing that protection would require some kind of legislative action.”
Another top intelligence official stressed to POLITICO that contractors have some protections now.
“Intelligence Community contractors do have avenues to make legal, protected disclosures to the Inspectors General, the Agency Head and/or Congress,” said Dan Meyer, Executive Director for Intelligence Community Whistleblowing & Source Protection.
But Meyer noted that the government does not consider giving information to the press to be whistleblowing.
“Neither contractors nor government employees are protected when they disclose to the media. Unauthorized sharing with the media is leaking, and not whistleblowing,” he said.
Indeed, another common public misconception is that if Snowden returns to face trial on the criminal charges filed against him under the Espionage Act, as well as other charges that could be added by prosecutors, he could argue to a judge or jury that the disclosures he made were in the public interest. In fact, such defenses are not allowed in leak cases.
Snowden and his defense team might not even be able to mention the phone metadata program he first exposed was ruled illegal by a federal appeals court and unconstitutional by a federal district court.
“There’s a disconnect between what people seem to think should be the outcome here, which is that Snowden should come defend himself in court and the court could take a look at his motivation and his actions and weigh it up and decide what an appropriate punishment would be,” said PEN American Center executive director Suzanne Nossel. “That’s not really an avenue here. Under the Espionage Act, he can’t mount his defense…..You don’t need to see Snowden as a hero to acknowledge it’s at least worth weighing up his actions in court.”
Still, the legal system does allow a leaker’s motivation to be taken account of in some ways. While Snowden could not use his motivations as a defense, if he was convicted, a judge could take such facts into consideration when fashioning a sentence.
And the Justice Department never prosecutes some leakers. Former DOJ lawyer Thomas Tamm appeared on the cover of Newsweek to admit that he was one of those who exposed President George W. Bush’s warrantless wiretapping program. It was one of the most closely held secrets in the war on terror, but Tamm was never charged.
Officials said one factor in not pursuing that case was the difficulty in prosecuting someone for exposing a program President Barack Obama publicly argued was illegal.
The report gives a mixed verdict to President Barack Obama, noting that his administration has implemented new protections by executive order, but also that it launched a record-breaking nine prosecutions of leaks under the Espionage Act. That’s triple the number of cases under all previous presidents.
The reasons for the surge in prosecutions are murky. Some of them are from cases that got underway during the Bush era and may reflect a surge in national security-related activities of all sorts after the September 11, 2001 attacks. An anti-leak effort in the Obama’s White House’s early days may have led to a tougher approach at the Justice Department. And technology (such as the growing piles of metadata) has made it easier to track down leakers.
The report calls for Obama to stop bringing Espionage Act cases against whistleblowers, but also urges Congress to add a public-interest defense to the law.
Nossel said her group is not advocating that employees with access to secrets have unfettered discretion to release them, but that the system for dealing with people who do be more consistent and open to explanations for such actions.
“We’re not saying that confidentiality is unimportant or employees should be free to disclose at will, but that our law in many instances is not recognizing that there is such a thing as legitimate whistleblowing,” she said.
PEN’s ultimate concern, Nossel added, is not the procedures for handling whistleblowers but that important information the public should have is being bottled up.
“Our interest is really about journalists ability to get their job done,” she said.
The report will be formally unveiled at an event Tuesday afternoon at the Newseum in Washington, featuring Nossel, POLITICO Editor Susan Glasser, NSA whistleblower Thomas Drake, whistleblower advocate Jesselyn Radack of Expose Facts, New York Times reporter James Risen and a scheduled appearance via videolink by Snowden, currently in Moscow.