Whistleblowing and leaks – in the public interest (or not): an American view

The following is an extract from an article by Michael Walzer, entitled ‘Just and Unjust Leaks’, which was published in the ‘Foreign Affairs’ publication (March/April 2018; Volume 97, Number 2; www.foreignaffairs.com).

Abstract:   This US insight comes while the Australian Bill, for protecting ‘whistleblowers’: Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017, is still before Parliament (see related Tax Technical article). The Senate Economics Legislation Committee delivered a report, on 22.3.2018, reluctantly recommending that this Bill be passed (see TT article). This US article shows some of the similarities and differences between the US legislation and Australia’s proposed legislation [see para 9, and following, below]. One similarity is the fraught requirement, that the whistleblower has tried to complain, internally, before going public [para 12]. A difference, however, appears to be that the 1989 US Act offers, at least some protection, to public servants [see para 9, below, and the TT article about an Australian experience]. Also, the US experience is that, a US whistleblower, rarely succeeds in exercising her right to keep her job [para 10]. So, the author concludes that “going public is a kind of principled resignation”. He also looks at the the disclosures by the notorious National Security Agency contractor: Edward Snowden and an earlier massive leak to WikiLeaks. There have been equivalent leaks, recently, being the ‘Panama Papers‘ and the ‘Paradise Papers‘, but they were made to the International Coloquium of Journalists. The author explains that disclosure to the Press is a far more responsible (than WikiLeaks) so long as it is a Press, in with a tradition of ‘freedom of the press’ defended in aid of their commitment to corruption free, democratic, government [paras 7 & 9]. Taking a more global view of this issue, the author looks at the difference between members of the defence force (who are obliged to DISOBEY unlawful orders) and civil servants (for whom there is no legal obligation to reveal illegal, wasteful or unsafe behaviour in government) [para 9]. He says that disclosure, is a ‘moral risk’ where a judgement is, ultimately, only after the event, if there is a consensus of public opinion, that the disclosure was justified [para 1]. Similarly, he concludes that whistleblowers might have to accept that there will be some punishment, that follows. In other words, it is a sort of civil disobedience, hoping to make a greater point, like the American ‘civil rights’ protests of last century. But he does plead that, the punishment be made to fit the ‘crime’, by taking into account, the public interest in the disclosure. [para 14].

FJM: 28.4.2018

EXTRACT

1. This is the best way to think about whistle-blowing: it involves a kind of moral risk-taking, and it can be justified only after the fact, if other citizens recognize its morality. Of course, its morality will always be contested, with government officials arguing that an important mission has been undercut and that agents in the field have been endangered. This might be true, or it might be a lie, which would justify further whistle-blowing

2.  The whistleblower herself is counting on her fellow citizens to defend her judgment—to affirm it, in fact, and say, “Yes, this is an operation that we should have been told about, and it is one that we would have rejected.” If most of her fellow citizens agree—or, rather, most of those who are paying attention, since majority rule would not work here—then exposing the operation was likely justified.

3. The case is the same if U.S. citizens are both the objects of the operation and the ones from whom it is being concealed. The bestknown contemporary American whistleblower, the former National Security Agency contractor Edward Snowden, revealed the largescale surveillance of Americans by their own government. He bet that most of his fellow citizens would not think that the danger they faced was great enough to warrant such a massive invasion of their privacy.

4. With some difficulty, I can imagine circumstances in which largescale secret surveillance by an otherwise democratic state might be justifiable or at least defensible. But what Snowden revealed was an operation that could not be justified by any actually existing danger; this was something that American citizens needed to know about.

5. Unfortunately, however, Snowden revealed much more than what Americans needed to know—and not only to his fellow citizens: in addition to sharing secrets about the surveillance of American citizens with journalists from The Washington Post and The Guardian, he provided the South China Morning Post with information about U.S. intelligence operations against non-American targets in mainland China. That disclosure put Americans at risk, and Snowden had no reason to believe that what the United States was doing in China was either illegal or immoral—or anything other than routine.

6. Judgments in cases like this one will obviously be shaped by political views, but not, one hopes, by partisan loyalties. Many liberals and Democrats, along with some conservatives and a few Republicans, condemned the domestic surveillance that Snowden revealed and defended his decision to do so. The first year of the Trump administration, however, has seen many leaks that have derived from and invited partisanship. Consider the leaked details of the president’s May 2017 conversation with Russian officials in the Oval Office, after he had fired FBI Director James Comey, who had been investigating whether Donald Trump’s election campaign had coordinated with the Kremlin. “I just fired the head of the FBI. He was crazy, a real nut job,” Trump said, according to a source quoted by The New York Times. “I faced great pressure because of Russia. That’s taken off.” The Washington Post reported that during the same meeting, Trump shared highly classified information with the Russians that “jeopardized a critical source of intelligence on the Islamic State.” The leakers to the Times and the Post certainly meant to raise questions about the president’s competence on foreign policy. Americans who already doubted Trump’s abilities welcomed the leak. The president’s supporters obviously did not.

7. There is no way to make an objective judgment here—not, at least, about the leakers. But the journalists who reported this and many other leaks, and who worked hard to make sure of their accuracy, were doing their job and ought to be commended. They did not confront a moral dilemma. Leaks of this sort are grist for the mill of a free press.

Bureaucratic Outlaws

8. As for whistle-blowing, as opposed to leaking, a truly detached and fully informed observer would probably be able to make an objective judgment about any particular revelation. But that sort of judgment isn’t likely in the fraught world of politics and government—although a consensus might take shape, slowly, over time, as in the case of the Pentagon Papers: it seems likely that most Americans have come to believe that the military analyst Daniel Ellsberg did the right thing in sharing the documents with the press. Whistleblowers such as Ellsberg appeal to their fellow citizens, and there really isn’t any further appeal to make. If the citizens don’t agree among themselves about the justifiability of the disclosure, there can be no definitive verdict.

9. But suppose that most Americans recognize the brutality or the danger that has driven the whistleblower to act. Her action was justified, but she has violated the commitments she made when she took her job, and she may have broken the law. When soldiers disobey an illegal order, they are in fact obeying the official army code [soldiers are commanded to disobey illegal orders, even on the battlefield]. But there is no official code that orders civil servants to refuse to keep secrets about an illegal or immoral operation. Soldiers are obligated to disobey; civil servants are not obligated to blow the whistle. They are, however, protected from official retaliation and punishment by the Whistleblower Protection Act of 1989 if they reveal a range of illegal government actions: gross mismanagement, the waste of public funds, or policies that pose a substantial and specific danger to public health and safety.

10. If whistleblowers are fired or demoted for revelations such as those, they can file an appeal to the U.S. Merit Systems Protection Board. These appeals are most often denied—but not always. In 2003, Robert MacLean, an employee of the Transportation Security Administration, told an MSNBC reporter that in an effort to reduce spending on hotels, the TSA would be removing air marshals from many long-distance flights. He was subsequently fired. After appealing the decision—first to the mspb, then to a federal appeals court—he was finally reinstated in 2013. The Supreme Court upheld that decision in 2015. It was a rare judicial victory for whistle-blowing.

11. But blowing the whistle on government action abroad or on security related surveillance at home isn’t protected by the Whistleblower Protection Act. And revealing classified information is not legal, even if public health and safety are at issue. If a whistleblower reveals secrets that the government doesn’t believe should be revealed, she has broken the law, regardless of her intentions or public sentiment about her actions. She is a disobedient civil servant, a bureaucratic outlaw.

12. Citizens might well consider her action a form of civil disobedience. But an act must meet certain conditions for that term to apply. First, the whistleblower must have tried to convince a superior that the government’s operation was illegal or immoral. Before going outside the government, she must have done the best she could inside, among her coworkers. Second, she must act in person and in public, without any attempt to hide who she is—even though this means that she won’t see any more secrets. Many leaks can come from a single concealed leaker, but whistle-blowing is almost certainly a one-time act. If internal dissent doesn’t work, then going public is a kind of principled resignation. Third, the whistleblower must take responsibility for the revelation she has made; she must not hand secret documents to agents about whose subsequent behavior she can’t be reasonably confident. She has a purpose for blowing the whistle, and she has to do her best to make sure that her purpose, and no other, is served. Snowden initially chose The Guardian, The Washington Post, and The New York Times (among other media outlets) as venues for his leaked secrets, and this seems the right kind of choice since these are newspapers whose publishers have had, along with a desire to sell papers, a longstanding commitment to democratic government. But Snowden

showed less careful judgment in choosing to share information with the South China Morning Post, an organization that he had no reason to believe was committed to democratic decision-making in the United States.

13. A similarly flawed judgment also affected the case of another well known American whistleblower, Chelsea Manning, who in 2010, provided a massive trove of classified diplomatic cables to WikiLeaks. In contrast to newspapers with long records of public service, WikiLeaks is the wrong kind of intermediary between a whistleblower and the American people. Its directors may or may not have democratic commitments, but they also have narrowly partisan and personal aims, about which the public has learned a great deal in recent years.

TOUGH CALLS

14. A civil whistleblower is making the same appeal to her fellow citizens that civil rights activists in the 1960s made—in similar defiance of the law and with a similar willingness to accept legal punishment. Whistleblowers can and probably should be punished for revealing state secrets, even if the secrecy is unjust. Judges and juries should try to make the whistleblower’s punishment fit her crime, and her crime must be weighed against the government’s subversion of the democratic process and the illegality and immorality of the revealed operation: the more significant the subversion and the greater the brutality or

danger, the milder the sentence should be.

15. There must be some punishment for people who break secrecy laws, to serve justice when someone blows the whistle recklessly and to deter others from doing so. The fear of punishment focuses the mind and forces a potential whistleblower to think hard about what she is doing. Citizens should respect a whistleblower’s willingness to pay the price of her disobedience, and at the same time, they should make their own judgments about whether what she did was right or wrong. Her action may require a complicated verdict: for example, perhaps she was right to open the democratic debate but wrong in her assumption of what the outcome of the debate should be. In any case, the public owes her a reflective response—not knee-jerk hostility or

knee-jerk support.

16. Democracies live uneasily with secrecy, and governments keep too many secrets. Greater transparency in government decision-making would certainly be a good thing, but it has to be fought for democratically, through the conventional politics of parties and movements. Whistle-blowing probably does not lead to greater transparency – in the long run, it may only ensure that governments bury their secrets more deeply and watch their employees more closely. Still, so long as there are secrets, whistle-blowing will remain a necessary activity. Whistleblowers have a role to play in a democratic political universe. But it is an unofficial role, and one must recognize both its possible value and its possible dangers.

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