New PEN Report Reveals High Risks for National Security Whistleblowers
FOR IMMEDIATE RELEASE
Weak protections for intelligence workers impede checks on government malfeasance
NEW YORK—A new report released today by PEN American Center documents a chaotic patchwork of protections for national security whistleblowers that leaves many intelligence community workers extremely vulnerable to retaliation and criminal prosecution. The gaps in the existing scheme of protections pose high risks for national security workers wishing to expose alleged wrongdoing, undercut the ability of journalists to report on information in the public interest and to protect sources, and largely exclude the national security sphere from the crucial check on abuses that whistleblowers provide in other areas of the U.S. government.
Secret Sources: Whistleblowers, National Security, and Free Expression reveals massive holes in the laws and regulations covering whistleblowing by intelligence workers, particularly when they seek to challenge a government action that has been previously authorized by an agency head or Congress as legal, even if their claims raise valid constitutional or ethical issues. The report details a litany of hurdles facing whistleblowers hoping to expose misconduct or abuse: a weak and vacancy-riddled internal reporting system; frequent retaliation against leakers, including ransacked homes, arrests, and job loss; failure to hold retaliators accountable; and lack of access to courts to challenge alleged retaliation.
For those who bypass this flawed system and disclose to the press, the consequences can be dire. Under the Obama administration, the report shows, intelligence workers who leak information outside the agency are likely to be tried under the Espionage Act of 1917, a World War I-era law intended to prosecute spies for foreign governments. Courts have ruled this law prohibits whistleblowers from even claiming that their disclosures were in the public interest.
“Although whistleblower protections are widely recognized as essential to check government malfeasance, the system fragments when it comes to the national security sector, the largest and most secretive part of our government. Contractors and those who leak government actions that are technically lawful but perhaps shouldn’t be receive virtually no protection from retaliation,” said Suzanne Nossel, executive director of PEN American Center. “While most Americans believe that genuine whistleblowers deserve reliable protection, our law doesn’t achieve that when it comes to hundreds of thousands of workers who deal in matters of national security.”
Drawing on interviews with experts on national security whistleblowing and free expression, including leakers, lawyers, scholars, journalists, and government representatives, the 28-page report makes three primary recommendations: 1) ensure strong, clear protections for government whistleblowers that apply across agencies and to all categories of workers, including contractors; 2) reform the impenetrable Espionage Act to allow defendants to raise a public interest defense in cases of disclosure to the public, and limit prosecutions under the Act to offenders intending to harm U.S. national defense; and 3) implement protections against employment retaliation and criminal prosecution of whistleblowers, including access to courts for recourse.
Founded in 1922, PEN American Center is an association of 4,200 US writers working to break down barriers to free expression worldwide.