Damming the Leaks: Balancing National Security, Whistleblowing and the Public Interest (original) (raw)
Related papers
Yale Journal of International Law, 2020
This article discusses the comparative responses from the U.S. and the European Court of Human Rights to the conundrum posed by whistleblowing in national security. Concluding that both systems have focused excessively on the subjective aspect of whistleblowing as a facet of freedom of speech, the article proceeds to propose an innovative, institutional framing of the conflict over public disclosures, building on the transnational precedent that confirms the social value of whistleblowing for democratic self-government and public accountability. Concretely, this means that when state secrecy covers illegal and illegitimate activities of the executive power, then whistleblowers should be entitled to protection against criminal sanctions. Such an approach shifts the criterion of protection from balancing between subjective rights and the public interest, to the legitimacy of the disclosed activity. At the same time, legitimate state secrecy should be protected through sanctions (primarily employment-related and only exceptionally criminal) to leakers.
Secrecy and National Security Whistleblowing
Social Research: An International Quarterly
I) Reflections on Secret-keeping and Identity In the "national security" area of the government-the White House, the departments of state and defense, the armed services and the "intelligence community," along with their contractors-there is less whistleblowing than in other departments of the executive branch or in private corporations. This despite the frequency of misguided practices and policies within these particular agencies that are both more well-concealed and more catastrophic than elsewhere, and thus even more needful of unauthorized exposure. The mystique of secrecy in the universe of national security, even beyond the formal apparatus of classification and clearances, is a compelling deterrent to whistleblowing and thus to effective resistance to gravely wrongful or dangerous policies. In this realm, telling secrets appears unpatriotic, even traitorous. That reflects the general presumption-even though it is very commonly false-that the secrecy is aimed not at domestic, bureaucratic or political rivals or the American public but at foreign, powerful enemies, and that breaching it exposes the country, its people and its troops to danger. Even those insiders who have come to understand that the presumption is frequently false and that particular facts are being wrongly and dangerously kept secret not so much from foreigners but from Congress, courts or the public are strongly inhibited from speaking out by an internalized commitment to keep official secrets from outsiders, which they have promised to do as a condition of employment or access. To be sure, there are strong, usually more than adequate careerist incentives not to break those promises. Being found to do so exposes officials to loss of access to meetings and information, loss of clearance, demotion or loss of promotion, loss of job or career, loss of retirement benefits, harm to marriage or to children's prospects that comes with loss of income, even danger of prosecution and prison. The last risk is much less likely than they are led to believe-at least, that was true prior to the present Obama administration-but the other job-related penalties are not, and they prove more than sufficient to keep most secret-keepers from breaking the rules in ways that would expose them to such losses, even when the welfare of many others is at stake. However, as a former insider I can attest to psychological dimensions of this behavior that seem rarely to have been discussed. They seem worthy of some extended reflection here, given my own motive to understand this behavior in order in some respects to change it. In my experience, the psychological stakes for officials in keeping their commitment to keep secrets-even what appear to be "guilty" secrets that not only preclude democratic accountability but endanger the welfare of many people-go beyond careerist calculations of keeping a job or possible punishments for disobedience, influential and even sufficient as those considerations generally are. The promise to keep "secrets of state," once demanded and given, becomes virtually part of one's core identity. In the national security apparatus, one's pride and self-respect is founded in particular in the fact that one has been trusted to keep secrets in general and trusted with these particular secrets. Second, they reflect one's confidence that one is "worthy" of this trust. Indeed, the trust (with respect to truly sensitive secrets, requiring utmost reliance on the discretion of the recipient) will have been "earned," before being conferred, by a long history of secret-keeping, building habits that are hard to break, that form part of one's character. These habits will allow a good deal of leeway and discretion in disregarding formal rules of the classification system when it comes to sharing information with others who have not been explicitly authorized to receive it-even reporters who have not been formally cleared, in flat violation of the rules-when this is in the interest of furthering the policies or interests of one's agency boss or the president.
2024
The disclosure of wrongdoings by whistleblowers is currently encouraged by numerous countries. However, when it comes to disclosures involving illegal state secrets in matters of national security, there is a very different legislative treatment worldwide. Whistleblowers who disclose classified information with the purpose of revealing wrongdoings are usually convicted for espionage or other related crimes, even if their disclosures are of great public interest. The purpose of this paper is to explain why the behaviour of such whistleblowers deserves a certain degree of leniency and how this could be legally implemented. First, the arguments for and against the disclosure of classified information will be presented. Next, the role that unauthorised disclosures of classified information play in the pursuit of state transparency will be addressed. Finally, the article will present the central arguments in favour of the legitimacy of this behaviour and analyse the legal alternatives for a complete or partial exemption from criminal liability.
SSRN Electronic Journal, 2013
(detailing Vanunu's case). 6. Ellsberg maintained that he had not broken US law, but also eventually stated that his actions were, in any event, justified by necessity, as officials were acting behind a "cloak of secrecy" which "tempted them to ignore the constraints of international or domestic law or the Constitution." See Ellsberg Affidavit at 9, Florida v. Doe, Nos. 87 363-MM-A and 87-365-MM-A (Fla. Brevard County Ct. May 20, 1987). Vanunu argued that if Israel "was producing nuclear arms, then concealing this fact from the citizens of the State imposes on them a moral and legal burden which no government has the right to impose on her residents without their knowledge and consent." Feldman, supra note 5, at 11. 7. Chelsea Manning (formerly known as Bradley Manning), a US Army private, gave hundreds of thousands of military documents subject to various levels of classification, now known, inter alia, as the Iraq War Logs, Afghan War Logs, and US Embassy Cables, to transparency organization Wikileaks for publication in 2010. See
Whistleblowing, National Security and the Constitutional Freedom of Political Communication
Whistleblowers promote the values of responsible government and the rule of law by drawing attention to criminal or other forms of wrongdoing in publicly accountable organisations. This article explores the relationship between whistleblowing, national security and the implied freedom of political communication under the Australian Constitution. Legislation such as the Crimes Act 1914 (Cth) ('Crimes Act'), the Australian Security Intelligence Organisation Act 1979 (Cth) ('ASIO Act') and the Australian Border Force Act 2015 (Cth) ('Border Force Act') makes it an offence to reveal certain types of information obtained as a Commonwealth officer. The Public Interest Disclosure Act 2013 (Cth) ('PIDA') offers limited protection to whistleblowers in the Commonwealth public sector, but this protection does not extend to information relating to intelligence operations. We argue that blanket criminalisation of unauthorised disclosure by Commonwealth officers or contractors under s 70 of the Crimes Act, along with similar prohibitions in s 35P of the ASIO Act and s 42 of the Border Force Act, offend the implied freedom of political communication by failing to strike an adequate balance between national security and organisational secrecy, on the one hand, and public debate and discussion, on the other. The courts should read down these laws to protect disclosures that hold significant public interest for discussion and debate over government policy or the performance of government officials.
The Wasp's Nest: Intelligence Community Whistleblowing & Source Protection
Meyer and Berenbaum analyze the national security policy challenge in balancing protections for Intelligence Community whistleblowers and the government’s legitimate need for secrecy in order to execute the federal intelligence and counterintelligence mission. It is that need for secrecy that creates the intellectual distance between the sovereign’s requirement for information regarding the performance of the federal intelligence and counterintelligence mission and the ability to conduct that mission.
Sahra Essalhi, 2019
The present dissertation explored the whistleblowing phenomenon in the United States and highlighted the case of Edward Snowden. Judging the persona of the whistleblower has always been a matter of discussion in the American community. It is an area of debate where the views vary and oppose one another. The exclusive case of the National Security Agency (NSA) and Snowden made the government project him as a traitor while the public seemed to support his message and consider him a hero. The deliberation about his image kept the momentum of not settling on a final judgment. Within the scope of this dissertation, the attained results affirm that the young whistleblower is a national hero. As reinforcement to the confirmed hypothesis, the current work asserts a collection of convincing arguments to put an end to the long lasting debate about the image of Snowden, proving that whistleblowers are often subject of rejection by the government if their message falsifies in any shape or form the credibility of the system upon which it operates.
The ethics of whistleblowing, leaking and disclosure
2017
Edward Snowden, a low-level private contractor to the US-based National Security Agency (NSA), breached prima facie legal and moral confidentiality/secrecy obligations by engaging in unauthorized accessing, retrieving and/or releasing of a large volume of confidential data from NSA to the press and, possibly, to foreign powers, for example China or Russia. This raises a raft of ethical issues in relation to whistleblowing, leaking and disclosure. In this entry I undertake three tasks. First (section 1), I discuss the nature of whistleblowing with a view to differentiating it from other forms of unauthorized disclosure, for example leaking. Second (section 2), I provide analyses of the moral principles of privacy and confidentiality, and differentiate these from the (arguably) non-moral principles of anonymity and secrecy (respectively). The principles of privacy and confidentiality have inherent moral weight – in a sense clarified below – and, as such, can justify non-disclosure. Th...
No Right to Classified Public Whistleblowing
Ratio Juris, 2018
Given the crucial role unauthorized disclosures can play in uncovering grave government wrongdoing, it makes sense to search for a defense of justified cases of what I call " classified public whistleblowing. " The question that concerns me is what form such a defense should take. The main claim will be a negative one, namely, that a defense of whistleblowing cannot be based on individual rights, be they legal or moral, though this is indeed the most commonly proposed defense. In closing, I will outline a more appealing alternative, namely, a justification defense.