Navigating the fine line between whistleblowing and espionage
- Bradley Manning sentenced to 35 years in prison - report
- Snowden gets whistleblower award in Germany
- NSA whistleblower Snowden charged with espionage
- No legal basis for Russia to take Snowden into custody - source
- Ecuador grants WikiLeaks founder asylum despite UK threats
- Civil rights NGO ACLU sues US officials over NSA surveillance program
Ingrid Burke, RAPSI
When one reveals classified information, acquired by way of high-level security clearance, to the public at large – is s/he a whistleblower or a spy? What if our hypothetical leaker was motivated at least in part by the desire to expose official wrongdoing, or should that even matter where national security is concerned? These questions have posed perhaps the most trite, tired debate pervading daily news intake over the past several months as poster-children for the issue Bradley Manning and Edward Snowden have dominated global headlines. And yet, a lack of any clear legal delineation between the whistleblower and the spy seems to have left the public to draw its own conclusions, which tend to be driven more by emotional political pageantry than by logic.
The Espionage Act of 1917
Mark S. Zaid, a Washington DC attorney with an expertise in national security litigation and lobbying, shared with RAPSI his insights on the matter. Importantly, he noted that the Espionage Act – which has served as the basis of the indictments against both Snowden and Manning – is essentially antediluvian by this point.
According to Zaid, “The Espionage statute itself, which has not been amended since the Korean War and largely was written during WWI, makes no distinction between spy, leaker, journalist or even Joe Q. citizen. That is why the [US Government] was able, fortunately unsuccessfully, to prosecute two lobbyists several years ago for disseminating national defense information.”
To put that statement into perspective, most of the drafting of the Espionage Act was carried out at a time when artillery rounds were raining over no man’s land in Europe. Enemy troops would spend months hiding in trenches, firing on the opposing side, struggling on the front lines for relatively miniscule increments of territory.
Meanwhile, the US had found itself in a vulnerable position as far as intelligence was concerned. As explained by former US Director of Central Intelligence Allen Dulles in his book The Craft of Intelligence, “German espionage and sabotage in the United States were among the more successful feats of their intelligence in World War I, thanks in part to our lack of preparedness with countermeasures.”
Flash forward nearly a century and to no one’s surprise, the faces of warfare and espionage have changed unrecognizably.
Likewise, it goes without saying that the enormity of the scale of technological advancements that have occurred over the course of the past 96 years would have left the drafters of the Espionage Act with no capacity to fathom the likes of WikiLeaks.
Free speech v. Espionage: competing constitutional interests
Even reporters aren’t safe from the Espionage Act. Fox News reported in May that its own James Rosen had been accused in a US Department of Justice (DOJ) affidavit of having acted as a “co-conspirator” in connection with his alleged role in having published sensitive information. The news agency cited court documents in asserting that the DOJ had obtained a wealth of information on Rosen, including his visits to the State Department and a search warrant for his personal emails.
The story hit a mass-media nerve by billing a reporter as a potential co-conspirator. The Washington Post reported the story alongside an affidavit claiming that there is reason to believe that the reporter’s communications contain “evidence, fruits and instrumentalities of criminal violations of” the federal law on unauthorized disclosures of national defense information, and then takes it a step further by asserting: “… there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate.”
Gleen Greenwald, the columnist for The Guardian who helped Snowden drag the NSA PRISM scandal out from the shadows, also got into a story. While speaking with NBC’s David Gregory on the program Meet the Press in June, Greenwald was confronted with the suggestion that “To the extent that you have aided and abetted Snowden, even in his current movements, why shouldn't you, Mr. Greenwald, be charged with a crime?”
To this, Greenwald retorted, "I think it's pretty extraordinary that anybody who would call themselves a journalist would publicly muse about whether or not other journalists should be charged with felonies. The assumption in your question, David, is completely without evidence, the idea that I've aided and abetted him in any way.”
As explained by Zaid, “Under the language of the statute the [government] can legitimately argue that James Rosen of Fox News was aiding and abetting his alleged source, who is now being prosecuted for leaking classified information. David Gregory was also on solid footing in questioning Glenn Greenwald as to whether he is aiding and abetting the self-admitted illegal disclosures of Snowden. Now neither situation means that either journalistic individual should be prosecuted for their involvement. There can and should be a fundamental difference between what the law can allow and what practice or policy dictates shall occur, especially in the pursuit of First Amendment activities of the media.”
In the meantime, prosecutions for leaks of classified information to the news media have been on the rise, according to a policy paper published by the Congressional Research Service (CRS) entitled “Criminal Prohibitions on the Publication of Classified Defense Information.” Notably however, by the time of its late June publication, the CRS knew of no cases where a publisher has been prosecuted for publishing unauthorized disclosures by a government employee. On this point, the paper states, “There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship.”
The First Amendment of the US Constitution provides for the freedoms of speech and the press, stating in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press….”
The CRS paper notes however that the US Supreme Court has held that the government is entitled to “regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest.” The paper then asserts, based on more Supreme Court case law, that “Protection of the national security from external threat is without doubt a compelling government interest.”
The burden of proof is on the government in such cases to show that its interests are sufficiently compelling.
According to the paper, “Whether the government has a compelling need to punish disclosures of classified information turns on whether the disclosure has the potential of causing damage to the national defense or foreign relations of the United States.” A footnote to that passage defines national security as “national defense and foreign relations.”
Fair enough, but the nature of classification itself hangs on the issue of national security. An executive order released by US President Barrack Obama in December 2009 explains that information can be classified on three levels: top secret, secret, or confidential. The top secret label applies to information which, if disclosed without authorization, “could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or described.” Secret information is that which, if disclosed without authorization, “could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe.” Confidential information is that which, if improperly disclosed, “could be expected to cause damage to the national security that the original classification authority is able to identify or describe.” In other words, according to the executive order, the very feature that distinguishes classifiable information is its potential to impact US national security. Levels of classification are merely defined by its level of threatened detriment.
According to the CRS paper, the government isn’t required to prove actual damage, but the potential for damage must be “more than merely speculative and incidental.” As explained in the paper, “Government classification will likely serve as strong evidence to support that contention, even if the information seems relatively innocuous or does not contain much that is not already publicly known.”
Importantly, the paper warns, “Still, judges have recognized that the government must make some showing that the release of specific national defense information has the potential of harming U.S. interests, lest the Espionage Act become a means to punish whistle-blowers who reveal information that poses more of a danger of embarrassing public officials than of endangering national security.”
So, whistleblower, or spy?
A brief backgrounder on the website of the DOD’s Office of Inspector General (OIG) describes whistleblowing as “making a disclosure evidencing illegal or improper government activities.”
Still, in terms of distinguishing whistleblower from spy, Zaid suggested focusing on the motivation underlying an individual’s drive to leak classified information in the first place.
According to Zaid, “Now, of course, the motivation underlying the spy vs. leaker may be completely different. Many generally view leakers, such as Ellsberg, Manning and Snowden as those who are ostensibly doing something for the greater good, no matter how misperceived that might be, while spies are regarded as traitors who betrayed their country for that of another for either financial or ideological reasons.”
He notes, however, that the Espionage Act does not bring this question into play: “To the contrary, from a legal standpoint the criminal culpability might not be any different (which is not to say some distinctions cannot be reached) but the relevance goes as to sentencing upon conviction. It is there that the individual's motives – whether as self-perceived or actual hero for the greater good or as a greedy disloyal traitor – will play a significant role.”
WikiLeaks founder Julian Assange had written a statement lambasting the verdict handed down against Manning in late July, stating: “This is the first ever espionage conviction against a whistleblower. It is a dangerous precedent and an example of national security extremism. It is a short sighted judgment that can not be tolerated and must be reversed. It can never be that conveying true information to the public is ’espionage’.”
Zaid notes that while perhaps factually accurate, Assange’s statement may have been an oversimplification. In his own words: “First of all, obviously there is a great deal of debate surrounding whether Manning is a whistleblower. So that needs to be taking into account. In any event, the distinction has been one more of policy and practice than legality. The fact is, for example, that whistleblowers who provide classified information to the media, especially in today's world, can arguably cause more damage to US national security than if committed by a spy who sells the information to an enemy. The latter scenario results in just one country (or perhaps a small number of others with whom the information is shared) having possession of the information but the former leads to every country or organization, whether friend or foe, having access to the information, especially when it is available online.”
Protections for US whistleblowers
For those federal employees wishing to blow the whistle on the potentially uncouth activities of their agencies in a legal manner, there do appear to be legal pathways, even if these options are relatively soft-spoken when compared with large-scale leaks to global media outlets.
In general, federally employed would-be whistleblowers enjoy certain protections by virtue of the Whistleblower Protection Act (WPA). The WPA kicks in when personnel actions are taken as a result of a “protected disclosure” made by a qualifying employee. According to the backgrounder, Congress’ intent in enacting the legislation was to: “[s]trengthen and improve protection for the rights of Federal employees, to prevent reprisals, and to help eliminate wrongdoing within the Government by mandating that employees should not suffer adverse consequences as a result of prohibited personnel practices; and establishing ... that while disciplining those who commit prohibited personnel practices may be used as a means by which to help accomplish that goal, the protection of individuals who are the subject of prohibited personnel practices remains the paramount consideration."
Still – this isn’t available to all federal employees. By necessity, certain federal agencies are somewhat murkier on the transparency scale than their counterparts, and perhaps predictably, would-be whistleblowers within these agencies are afforded fewer protections.
In 2012, the Whistleblower Protection Enhancement Act (WPEA) revised several elements of the WPA. The term “agency” as utilized in the act was amended to exclude: “the Federal Bureau of Investigation [(FBI)], the Central Intelligence Agency [(CIA)], the Defense Intelligence Agency [(DIA)], the National Geospatial-Intelligence Agency [(NGA)], the National Security Agency[(NSA)], the Office of the Director of National Intelligence[(DNI)], and the National Reconnaissance Office[(NRO)]; and… as determined by the President, any executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities, provided that the determination be made prior to a personnel action…”
US President Barrack Obama released a policy directive (PPD-19) in October 2012 with the aim of protecting whistleblowers that have access to classified information. According to its text: “This Presidential Policy Directive ensures that employees (1) serving in the Intelligence Community or (2) who are eligible for access to classified information can effectively report waste, fraud, and abuse while protecting classified national security information. It prohibits retaliation against employees for reporting waste, fraud, and abuse.”
Among other things, the directive prohibits covered angencies from retaliating against Intelligence Community employees as a reprisal for “Protected Disclosures.” PPD-19 pertains to employees serving “Intelligence Community Elements,” which include (but are not limited to) the Office of the Director of National Intelligence (DNI), the CIA, the NSA, the DIA, the NGA, and the National Reconnaissance Office (NRO).
PPD-19 instructed the heads of each Intelligence Community Element to certify to the DNI within 270 days that its policies provided a review process for employees alleging retaliatory personnel actions. In true you-just-wait-til-your-father-gets-home fashion, the directive warns, “If the head of any Intelligence Community Element fails to make this certification or if the DNI disagrees with the certification, the DNI shall notify the President.” PPD-19 provides similar terms for its prohibition of retaliation by way of affecting one’s eligibility for access to classified information by virtue of a protected disclosure.
The directive then establishes an external review process for any employee who has exhausted the review processes outlined above. The external review mechanism would consist of a three-member panel chaired by the Inspector General of the Intelligence Community. According to the Directive, “the Inspector General of the Intelligence Community shall decide, in his or her discretion, whether to convene the External Review Panel, and, if so, shall designate two other panel members from the Inspectors General of the following agencies: Departments of State, the Treasury, Defense, Justice, Energy, and Homeland Security and Central Intelligence Agency.” Notably, the Inspector General for whichever agency conducted the initial review would be ineligible to serve on the External Review Panel.
The problem here is, all of these protections are triggered by retaliation for “protected disclosures,” a term with a predictably limited definition. If the given whistleblower’s end goal is to expose a perceived wrongdoing for all the world to see, he is probably disinterested in reporting information along the correct chain of command.
Likewise, there’s the he Intelligence Community Whistleblower Protection Act (ICWPA) which is described in a brief backgrounder published on the DNI website as a law aiming to provide intelligence community employees with the means to report complaints or information posing an “urgent concern” to the relevant congressional committees without fear of reprisal.
As promising as its sounds, the ICWPA actually seems to do more to protect communications of information than it does to protect the rogue purveyors thereof. In a 2006 statement on whistleblower protection to the Congressional Subcommittee on National Security, Emerging Threats, and International Relations, then-Acting Inspector General for the DOD Thomas Gimble explained: “Despite its title, the ICWPA does not provide statutory protection from reprisal for whistleblowing for employees of the intelligence community. The name "Intelligence Community Whistleblower Protection Act" is a misnomer; more properly, the ICWPA is a statute protecting communications of classified information to the Congress from executive branch employees engaged in intelligence and counterintelligence activity.”
According to the DOD OIG website, the Intelligence Community Whistleblower Protection Act (ICWPA) provides a secure means for whistleblowers working for the intelligence agencies that fall within its scope to transmit allegations regarding classified information to Congress.
The ICWPA is described in the DOD OIG backgrounder as one aiming to provide employees and contractors of the Defense Intelligence Agency (DIA), National Geospatial-Intelligence Agency (NGA), National Reconnaissance Office (NRO), and National Security Agency (NSA) with a process for reporting to the Congressional intelligence committees matters of urgent concern.
In an article published earlier this month by the American Civil Liberties Union (ACLU), Senior Policy Counsel for the organization’s Washington Legislative Office Michael German described the ICWPA as something of a sham, writing: “Congress passed the Intelligence Community Whistleblower Protection Act in 1998, but it is no more than a trap. It establishes a procedure for internal reporting within the agencies and through the Inspector General to the congressional intelligence committees, but it provides no remedy for reprisals that occur as a result. Reporting internally through the ICWPA only identifies the whistleblowers, leaving them vulnerable to retaliation.”
Furthermore – the statute aims to keep whistleblowing close to home – and in the hands of very few. If in fact the whistleblower wants only to expose wrongdoing, and if he has faith that using the formal avenues he can accomplish that goal, these laws and directives may very well rise to the occasion. If – instead – his goal is to expose what he views as a violation on a grand scale, a la Snowden, perhaps he will find the legal avenues available to him a bit stifling.
Notably, an FAQ section provided by the DOD OIG for would-be whistleblowers discourages hasty action, stating: “Those contemplating blowing the whistle on alleged wrong doing within the Defense Department are best advised to understand the context of their actions and the legal protections available, before they blow the whistle. Some actions, for instance, are not protected because they are illegal.”
All in all, for anyone sitting in their cushy Pentagon office contemplating the pros and cons of leaking the Top Secret file that’s been keeping them up nights, this discouragement might be worth considering. At least for those concerned they might have an even tougher time falling asleep in federal prison. At this point, the age of the Espionage Act – which was drafted in a time when everything about WikiLeaks would have been unfathomable – paired with the deference granted to the federal government in terms of calling shenanigans on any whistleblowing effort, create rough waters for the would-be whistleblower.
The CRS paper notes at one point that the US Supreme Court has stated that the constitutional purpose served by the protection of press freedom is that of preserving “the free discussion of governmental affairs.” It is difficult to see how this purpose will be adequately satisfied until the US can bring its laws suitably up to date to deal with the realities of espionage today in an adequately transparent fashion. Far from merely serving the interests of potential whistleblowers and the publishers looking to recruit them, this could serve the US Government’s own interest in deglamorizing the institution of whistleblowing. Because let’s face it – the present state of affairs has brought the world Edward Snowden, whose run from the law has left him with nothing short of rock-star status.