Share/E-mail This Story

Email This

This feature is only available to registered users. Register or sign in to use it.



Whistleblowers Should Be Allowed A 'Public Accountability' Defense

from the great-ideas dept

We've written numerous times about how one of the major problems of the Espionage Act, which the Obama Administration has used more than twice as many times as all previous administrations combined, is terrible in part because there is no whistleblowing defense. In fact, any and all evidence of the public interest in revealing the information is inadmissible as evidence. Instead, the Act just focuses on whether or not information was released. For hopefully obvious reasons, this has tremendous (and dangerous) implications for free speech and whistleblowing (something President Obama claims to strongly support).

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.

Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    AJ, Aug 13th, 2014 @ 9:57am

    Double Standard

    The Government encourages the people to turn in criminals, but when you turn in the criminals running our Government your a traitor.

    Sounds like the inmates are running the prison.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Aug 13th, 2014 @ 10:00am

    Re: Double Standard

    Not just any prison but one that's been privatized and the CEO of said prison then goes to lobby for further criminalization

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Anonymous Anonymous Coward, Aug 13th, 2014 @ 10:03am

    Simple Law

    CYA* is not an excuse to prosecute or harass anyone, let alone whistleblowers, therefore performing CYA is illegal. Because government officials should know better, the penalty is 25 to life of house arrest, at their own expense, the house to be determined after forfeiture of all assets, and a 100 square yard travel limit.



    *For the complainer, CYA = Cover Your Ass

    PS: Only semi-facetious

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, Aug 13th, 2014 @ 10:21am

    You know what they say about politicians and their mouths moving.

    I've learned a long time ago, that it isn't what they say that counts; it's what they do. No matter how some idea is talked up or it sounds like a politician is making a stance or statement, you find out the real deal after it is over and done with.

    It's not an accident that the Espionage Act has been used as many times as it has. That tells you what you are hearing and what the real aim is are two different things. Since the Snowden releases, its become clearer that the government has its own moral sets and how to deal with problems but is not an answer anyone else would do. Its become an embarrassment when caught that officials would break the law that way. Its become very clear to the public at large where the problems are. The big question now is how long it's gonna last.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Rekrul, Aug 13th, 2014 @ 5:05pm

    Re:

    Its become very clear to the public at large where the problems are. The big question now is how long it's gonna last.

    Until those in power are dragged from their offices by an angry mob.

    Seriously, when has any government ever voluntarily given up any power?

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Rekrul, Aug 13th, 2014 @ 5:09pm

    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.

    Why? It will never amount to anything. Those in power like things just the way they are. Writing a paper arguing that changes need to be made is like writing a paper arguing that the fox needs to stop eating your chickens.

    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.

    Which is exactly the reason that nothing will change. Challenging the legitimacy of government policies is now considered on about the same level as terrorism.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anonymous Coward, Aug 14th, 2014 @ 3:33am

    Re: Double Standard

    *you're

     

    reply to this | link to this | view in thread ]

  8.  
    icon
    Cal (profile), Aug 14th, 2014 @ 9:26am

    ".. the Espionage Act, which the Obama Administration has used more than twice as many times as all previous administrations combined, is terrible in part because there is no whistleblowing defense"

    Yet the supreme LAW of THIS land that all MUST be "in Pursuance thereof" to be lawful here says in the Bill of Rights which is unalienable says that " "In all criminal prosecutions...". The word "ALL" means every single one regardless if military or civilian courts:

    Amendment VI: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."

    For those of us who still labor under the conviction that the U.S. Constitution is the supreme law of the land, it must be observed that the only crimes assigned to the federal government in the Constitution for law enforcement purposes are Treason, Piracy, Counterfeiting, and International law violations. That’s it! All other law enforcement matters are the purview of the individual states, according to the Tenth Amendment.
    http://www.newswithviews.com/baldwin/baldwin800.htm

     

    reply to this | link to this | view in thread ]

  9.  
    icon
    Cal (profile), Aug 14th, 2014 @ 9:28am

    Re: Double Standard

    No, they just use accusations to take the publics attention away from the crime(s) those who serve within our governments or military have committed.

    It IS up to us to actually use our brains.

     

    reply to this | link to this | view in thread ]

  10.  
    icon
    Cal (profile), Aug 14th, 2014 @ 9:37am

    Re: Re:

    The US Constitution assigned the duties to:
    - Enforce the US Constitution and each state's Constitution,
    - Enforce and keep the “Laws of the Union” (which is constitutional laws ONLY),
    - Protect the country against all enemies both domestic and foreign, and
    - “to suppress Insurrections and repel Invasions”.

    To us as the TRAINED Militia of the several states. When the governmental professional law enforcement replaced us the Oath they are required to take, since they are not constitutionally recognized, as our replacements their FIRST duties are to:
    - Enforce the US Constitution and each state's Constitution,
    - Enforce and keep the “Laws of the Union” (which is constitutional laws ONLY),
    - Protect the country against all enemies both domestic and foreign, and
    - “to suppress Insurrections and repel Invasions”.

    If they refuse to do so, then we MUST replace them with the organized (trained) Militias of the several states to KEEP our freedom and our sovereignty.

    US Constitution assigns those duties to us which is why we are REQUIRED to be armed and TRAINED here:
    US Constitution, Article I, Section. 8, Clause 11: “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”.

    This is using private citizens in their own privately owned crafts to defend the USA and her people, this is using the Militia.

    Clause 15: “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel invasions.

    This clause is very straightforward also. The militia of each state is taxed with the defense of the USA and her people, not just with the defense of their state; and they are to be armed with weapons that can repel any invasions bearing modern weapons of war. Congress is required to provide those military grade weapons for the militias in Clause 16.

    Clause 16: “To provide for organizing, ARMING, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress”.

    Richard Henry Lee: "A militia, when properly formed, are in fact the people themselves …"

    George Mason, Co-author of the Second Amendment: "I ask, Sir, what is the militia? It is the whole people except for a few public officials. To disarm the people is the best and most effectual way to enslave them."

    Samuel Adams: “It is always dangerous to the liberties of the people to have an army stationed among them, over which they have no control ... The Militia is composed of free Citizens. There is therefore no danger of their making use of their Power to the destruction of their own Rights, or suffering others to invade them..”

    Patrick Henry: "If you have given up your militia, and Congress shall refuse to arm them, you have lost every thing. Your existence will be precarious, because you depend on others, whose interests are not affected by your infelicity."

    William Rawle, whose work was adopted as a constitutional law textbook at West Point and other institutions, and was United States Attorney for Pennsylvania, describes the scope of the Second Amendment's right to keep and bear arms:
    “The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.”

    Justice Story, Associate Justice, Supreme Court wrote: “The next amendment is: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
    The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them”.

    Tench Coxe: “Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American...The unlimited power of the sword is not in the hands of either the federal or state governments but, where I trust in God it will ever remain, in the hands of the people.”

    U.S. Constitution: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, OR IN THE MILITIA, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    GEMont, Aug 14th, 2014 @ 2:57pm

    That was a good one guys!! And its not even April 1st.

    "Whistleblowers Should Be Allowed A 'Public Accountability' Defense"

    hehehe heheheheh he he he he heheheheheh ha haha hahahahaha

    oh damn... I needed that.
    Best laugh I've had all week.

    Yeah, like that has a snowflake's chance in hell of actually happening in the Fascist States of Amerika.

    Actually, on second thought, a snowflake has a far greater chance of existing for a year in hell, than any legislation like this has of being allowed in the US.

    In truth, this will show folks just how helpless they are against the forces of fascism, as this idea will be summarily rejected and then forever ignored thereafter by those wielding power in the US.

    Unless of course, they can figure out a way to implement this legislation in such a way that all it really does is identify the whistleblowers for the fascists and fails miserably to defend them legally, like all the other Pseudo-Protection laws created for whistleblowers.

    Public Accountability Defense.... damn that's hilarious.

    ----

     

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
Advertisement
Essential Reading
Techdirt Deals
Techdirt Insider Chat
Techdirt Reading List
Advertisement
Recent Stories
Advertisement
Support Techdirt - Get Great Stuff!

Close

Email This

This feature is only available to registered users. Register or sign in to use it.