The U.S. government is not doing enough to protect national security whistleblowers, leaving those who expose corruption vulnerable to prosecution, undermining valuable information exchange for journalists and the public, and allowing government abuse to run rampant, a new report by a free speech advocacy group published Tuesday has found.
In its report, Secret Sources: Whistleblowers, National Security, and Free Expression (pdf), PEN American Center analyzed government policies and discovered while there are "at least 57 U.S. federal laws with whistleblower or witness protection provisions," these laws "are not consistent" in terms of who they apply to and protect.
Moreover, public debate over high-profile leaks—such as the National Security Agency (NSA) files released in 2013 by former contractor Edward Snowden—is stymied by policymakers and public officials who claim whistleblower protections are stronger than they really are, as Hillary Clinton did during the Democratic presidential debate in October, when she stated of Snowden that he "could have been a whistleblower. He could have gotten all of the protections of being a whistleblower. He could have raised all the issues that he has raised. And I think there would have been a positive response to that."
But the report—and the government's own track record—proves otherwise.
"As a government contractor, Snowden had few, if any protections under whistleblower provisions compared to intelligence employees who are hired directly by the U.S. government," the report states.
Under President Barack Obama's administration, intelligence workers who leak information to the public are likely to be tried under the Espionage Act of 1917, the same law that was used to prosecute whistleblowers including Chelsea Manning, Jeffrey Sterling, Thomas Drake, John Kiriakou, Stephen Jin-Woo Kim, Shamai Leibowitz, James Hitselberger, and Donald Sachtleben. Snowden also faces charges under the Espionage Act if he returns home.
The law is "a broad, vague charge not easily defended against," the report states. In fact, most of the non-government experts PEN interviewed for the report, including lawyers, journalists, and activists, said the Espionage Act "had been used inappropriately in leak cases that have a public interest component."
The report continues:
Experts described it as “too blunt an instrument,” “aggressive, broad and suppressive,” a “tool of intimidation,” chilling of free speech, and a “poor vehicle for prosecuting leakers and whistleblowers.”
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[....] It is extremely difficult for a leaker to defend him or herself from Espionage Act charges. There is no public interest defense to the Act, and courts have ruled that a defendant is not allowed to argue that the leaks were in the public interest nor can they mention the reforms that happened as a result. The courts have also found that the leaker’s intent is irrelevant—at least until sentencing—and that the government “need not show” that the leaked information “could damage U.S. national security or benefit a foreign power, even potentially.” In addition, the courts have rejected the “improper classification” defense, so defendants cannot challenge whether or not documents should have been classified in the first place.
"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," said PEN American Center director Suzanne Nossel. "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."
As a presidential candidate in 2008, then-Senator Obama promised to strengthen whistleblower protections for federal workers by allowing them jury trials and due process. And he has—just not for the intelligence community.
The Whistleblower Protection Enhancement Act of 2012 "specifically exempts workers of agencies or units that conduct foreign intelligence or counterintelligence activities, including the Federal Bureau of Investigation, Central Intelligence Agency, National Security Agency, Defense Intelligence Agency, National Geospatial-Intelligence Agency, Office of the Director of National Intelligence, and National Reconnaissance Office," PEN's report continues.
As Elizabeth Goitein, co-director of the Brennan Center for Justice's Liberty and National Security Program, told PEN, "The whistleblower laws for intelligence community members pretend that there's no such thing as agency level misconduct and we know that that's not the case... If what you're talking about is official misconduct that has been sanctioned by the agency, then obviously reporting that misconduct to that agency is not going to help."
"So internal channels are useless for things like torture, warrantless wiretapping, any of those major systemic abuses, like the ones we saw after 9/11," Goitein said.
Dan Meyer, the government's executive director for intelligence whistleblowing, told PEN, "If Snowden could have come to me I would have said 'that's nice you think it's unconstitutional, but staking your career on your hypothetical opinion about constitutionality is very dangerous.'"
PEN's report calls on the government to stop prosecuting whistleblowers under the Espionage Act and on Congress to add a "public interest" clause to the law. Doing so would honor the values Obama claimed to espouse in a 2011 speech, when he said, "we must support those basic rights to speak your mind and access information.... In the 21st Century, information is power; the truth cannot be hidden; and the legitimacy of governments will ultimately depend on active and informed citizens."