What is unfolding with Edward Snowden is not surprising—our current policies actually encourage leaks, given there is no meaningful legal system for whistleblowing in the intelligence community. There are too few legal channels for disclosing secret wrongdoing, and those that exist do not provide authentic protections from retaliation. There are very weak protections for intelligence whistleblowers and none at all for intelligence contractors. National security whistleblowers also have good reason to doubt that the authorities will take action on their disclosures, given the inaction by knowledgeable authorities in the administration, Congress and the Courts.
Where Mr. Snowden chooses asylum is a sideshow to critical matters facing our nation. What we should be focusing on are the important issues he has exposed—a broken system for whistleblowers and how secrecy is undermining our constitutional democracy.
It is high time that we address the need for more oversight of the government’s national security claims. We could start with the public disclosure of secret laws—the legal justifications, decisions, and enforcement of law that are kept secret. How can we know if the government has struck the right balance between our security and our rights if its legal interpretations are cloaked in secrecy?
Mr. Snowden’s disclosures of the National Security Agency’s domestic surveillance are certainly whistleblowing, but releasing classified information is also against the law. As was the case with Daniel Ellsberg and the Pentagon Papers, sometimes it is so important to make the information public that it is necessary to break the law. This is not a new concept. The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, provide: “No person may be punished on national security grounds for disclosure of information if…the public interest in knowing the information outweighs the harm from disclosure.” Whenever a whistleblower illegally discloses classified information, the public interest must be weighed against the harm to our national security.
But in any case, it’s clear that the government is handling leaks and whistleblowers atrociously. A recent McClatchy Newspapers story reports that, in keeping with POGO’s early warnings about the government’s knee-jerk response to WikiLeaks, the sweeping “Insider Threat Program” continues to chill free speech and threaten rights while quite obviously failing to prevent leaks.
"No matter who occupies the White House, we have a national security state on steroids engaging in far too much secrecy, making it harder for us to keep our legitimate secrets, conducting massive surveillance, and punishing rather than protecting whistleblowers."
In January 2011, we and our allies sent a letter to the administration about our concerns that agencies were being asked, among other things, to measure their employees’ “relative happiness” and “despondence and grumpiness as a means to gauge waning trustworthiness.” Government officials tried to assure us that it was not their intention to direct agencies to conduct this and other kinds of surveillance of employees. Yet, the McClatchy article points out that those familiar with the program are now concerned with its absurdly broad application and the ease with which the Insider Threat Program can be used to target whistleblowers.
As we’ve been saying for years, the way to stop leaks is to give whistleblowers strong protections and to curb over-classification. Instead, no matter who occupies the White House, we have a national security state on steroids engaging in far too much secrecy, making it harder for us to keep our legitimate secrets, conducting massive surveillance, and punishing rather than protecting whistleblowers.
In the end, are we safer? What rights are we willing to give up in the name of national security? Mr. Snowden has re-ignited that critical public discussion and it is one that “we the people” must be given ample opportunity to debate. Nothing less than the legitimacy of our constitutional democracy is at stake.
Read more about government oversight and whistleblower protections at the Project On Government Oversight (pogo.org).