Our Antiquated Laws Can’t Cope With National Security Leaks

Is Edward Snowden a traitor or a whistleblower? We need a better legal framework to figure that out.

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Even among those who oppose the government spying programs Edward Snowden revealed, many are calling for his prosecution. The refrain they sound has become familiar in the WikiLeaks era: no matter how good their intentions, those who leak classified information violate the law and put the nation at risk. Their transgression must be punished if we are to preserve the rule of law.

It is premature to judge Snowden’s actions, as information about them continues to unfold. But it is not too soon to push back against the simplistic formula that every leaker is a traitor – or, for that matter, a hero.

(MORE: Edward Snowden: A Modern-Day Daniel Ellsberg, Except for One Key Difference)

Disclosures of classified information come in all different forms. On one end of the spectrum, there are acts of espionage designed to harm the country by providing highly sensitive information to an enemy. On the other end, there are revelations of government wrongdoing by patriotic public servants who carefully avoid any disclosure of truly sensitive information. And there is everything in between: “authorized” leaks to bolster an administration’s standing; negligent leaks by inadequately trained personnel; self-serving leaks by employees seeking attention or status; and more.

Our laws are poorly designed to deal with this complex reality. The Obama administration’s weapon of choice in its crusade against national security leaks has been the World War I-era Espionage Act. That statute, which criminalizes certain disclosures of “national defense information,” was enacted to address traitors and spies. Its penalties are harsh, and until this administration, it was rarely used to prosecute well-intentioned disclosures to the media. But the statute does not explicitly require the government to prove malicious intent, and so it has been pressed into service against Daniel Ellsberg as well as Aldrich Ames.

(VIDEO: The NSA PRISM Surveillance Program in One Minute)

Additionally, there is a patchwork of statutes that permit prosecution for disclosure of classified information under a smattering of circumstances. For instance, one law penalizes theft of government property; another bars federal employees from keeping classified documents at unauthorized locations; another bars the disclosure of classified codes. Some carry penalties that seem more fitting for disclosures that are rooted in negligence or poor judgment. Obama’s Justice Department, however, has generally treated them simply as “add-ons” to Espionage Act charges.

On the other side of the balance, there is the legal framework built to protect and encourage “whistleblowing”: disclosures that are reasonably believed to reveal government fraud, waste, or illegality. The centerpiece of this framework is the Whistleblower Protection Act, which prohibits government agencies from taking adverse “personnel actions” against whistleblowers. However, the Act excludes intelligence community employees, and it does not provide any whistleblower with a defense against criminal prosecution.

The absence of any “whistleblower defense” to the Espionage Act and other anti-leak laws would make some sense if the government did a better job of identifying truly sensitive information. Courts tend to treat classification as a reliable proxy for sensitivity. In fact, it is widely acknowledged that “overclassification” is rampant in the federal government, with officials estimating that anywhere from 50 to 90 percent of classified documents could safely be released. Indeed, some documents are classified for the very purpose of hiding government misconduct.

(MORE: Viewpoint: David Westin: Leaks Help Protect National Security)

Even officials who readily acknowledge the problem of overclassification usually resist the notion of extending legal protections to national security whistleblowers who go public. Individuals, they contend, cannot be deputized to decide unilaterally whether to respect the document’s designation. The argument is a strong one. The would-be leaker might not be in a position to appreciate the full security consequences of disclosure, or might simply exercise bad judgment.

But permitting the prosecution of national security whistleblowers in the current environment of overclassification is equally problematic. Imagine the predicament of an employee who comes across evidence of gross governmental misconduct that has been improperly classified, and who raises her concerns within approved government channels to no avail. If she discloses the information, she may be prosecuted as a traitor; if she remains silent, she becomes complicit in the government’s own violation of the law and the public trust.

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It is clear that we need a more nuanced and far-reaching solution. We need fundamental reform of the classification system, so that leaks are no longer the only way to provide the public with information it has a right to know. We need the government to exercise better discretion when it chooses whether and how to prosecute leaks. And we need laws and policies that narrowly and carefully protect national security whistleblowers – including those who are forced to go public – without turning the information security system into a free-for-all.

The question of how to protect national security while preserving the transparency that is necessary for self-government is a complicated problem. The simplistic responses to Edward Snowden will not bring us any closer to the solution.

Elizabeth Goitein is the co-director of the Liberty and National Security program at the Brennan Center for Justice at New York University School of Law. The views expressed are solely her own.

3 comments
LewisKlim
LewisKlim

The issue is not merely one of law, our only genuine protection against any intrusiveness or, especially, arbitrariness of a fellow person or institution.  Yet, it is the idea, all too often never explicitly stated, but nonetheless, beloved of Americans,  andrailled futilely against by Reinhold Neihbur (the President's favorite "philosopher" somehow statesmen (or women) can"stage manage" the affairs of the world. We, nor anyone else cannot, but we can learn to curb the enormous self-love (myself included) we exhude, and attempt to rationalize the wrongheadedness we continue to perpetuate, regardless of the consequences, for ourselves, or our descendents. One final note: the Pentagon papers is a complex issue: the Government, especially the Executive and Legislative Branches continued to give a less than honest appraisal of the actual, than officially revealed progress of the war. This issue is too frought with complexities, however, one must insist we have not learned anything from such leaks: better the public insist on think tank, impartial studies of any major undertaking, rather than in media res, or worse, when it is too late.

LewisKlim
LewisKlim

Sorry, that last sentence should have read " insist on think tank, impartial studies BEFORE any major undertaking

archFinder
archFinder

We need to define the concept of "ownership" of an individual's digital activities.  What we do, where we go, what we buy and express an interest in, and even who we are, are being captured, cataloged, and stored in dozens of ways by thousands of interested commercial and non-commercial entities.  I say, each individual of us "owns" this digital information.  It is ours.  Other entities might have a need, and we might grant authority to an entity to collect and use digital information for our mutual benefit.  But "We" ....  each of us  .... MUST be the "owner" of that information.  Based on that idea, we need to establish firmly with big fines and penalties what happens to any entity that would violate our ownership rights.  Most specifically prohibiting the  aggregating, correlating, enhancing via statistical or analytical means, selling, sharing, or using any of this information in a way which is not authorized by us individually, or by law.