Whistleblowers Should Be Allowed A 'Public Accountability' Defense
from the great-ideas dept
However, Harvard Law professor/Berkman Center guru, Yochai Benkler, has proposed creating a special Public Accountability defense for national security leakers and whistleblowers, which he outlines in a recently published paper. The proposal is well worth reading. As Benkler notes, there is evidence that the most recent round of leaks are important for democracy, because they are challenging the legitimacy of intelligence community and government policies.
If legitimacy crisis, rather than technological change, is the primary driver of the increase since 2002 of the particular class of leaks that is most important in a democracy, then the present prosecutorial deviation from a long tradition of using informal rather than criminal sanctions represents a substantial threat to democracy. In particular, it threatens public accountability for violations of human and civil rights, abuses of emergency powers, and unchecked expansion of the national security establishment itself. Seen in that light, aggressive prosecutions are merely a symptom of the self-same post-9/11 national security overreach that instigated the legitimacy crisis: they manifest the government’s need to shield its controversial actions from public scrutiny and debate.The deep degree of secrecy and lack of accountability means that these leaks are incredibly important in actually making sure that these government efforts are, in fact, aligned with democratic values:
Secrecy insulates self-reinforcing internal organizational dynamics from external correction. In countering this tendency, not all leaks are of the same fabric. “War story”-type leaks that make an administration look good or are aimed to shape public opinion in favor of an already-adopted strategy or to manipulate support for one agency over another, trial balloons, and so forth, are legion. While these offer the public color and texture from inside the government and are valuable to the press, they do not offer a productive counterweight to internal systemic failures and errors. Some leaks, however, provide a critical mechanism for piercing the national security system’s echo-chamber, countering self-reinforcing information cascades, groupthink, and cognitive biases that necessarily pervade any closed communications system. It is this type of leak, which exposes and challenges core systemic behaviors, that has increased in this past decade, as it did in the early 1970s. These leaks are primarily driven by conscience, and demand accountability for systemic error, incompetence, or malfeasance. Their critical checking function derives from the fact that conscience is uncorrelated with well-behaved organizational processes. Like an electric fuse, accountability leaks, as we might call them, blow when the internal dynamics of the system reach the breaking point of an individual with knowledge, but without authority. They are therefore hard to predict, and function like surprise inspections that keep a system honest. By doing so, these leaks serve both democracy and security.To deal with this, Benkler says that Congress should act and clearly create that "Public Accountability" defense.
Aggressive prosecution of national security whistleblowers and accountability leaks threatens to undermine the checking function that whistleblowing provides. To address this threat, I propose that Congress adopt a new Public Accountability Defense as a general criminal defense, on the model of the necessity defense. The defense would be available to individuals who violate a law on the reasonable belief that by doing so they will expose to public scrutiny substantial violations of law or substantial systemic error, incompetence, or malfeasance even where it falls short of formal illegality. It is most important to the leakers themselves, but would also be available to journalists and others who participate in disseminating the leaked information. It would provide a defense not only against specific criminal provisions protecting classified materials, but also against any charge brought for actions arising out of the same set of facts involved in the leak.The full paper goes into much more details and is well worth the read. It makes it clear that this is not the only, or even the best, way to protect whistleblowers. In fact, more direct whistleblower protections could be quite valuable. But, in general, adding this public accountability defense, similar to a "necessity" defense, both makes sense and would be a useful tool for many people who have good reasons for what they're doing when it comes to leaking information.