Why U.S. needs to rethink whistleblower rules
June 5th, 2014
03:37 PM ET

Why U.S. needs to rethink whistleblower rules

By Dinah PoKempner, Special to CNN

Editor’s note: Dinah PoKempner is general counsel at Human Rights Watch. The views expressed are the writer’s own.

Edward Snowden’s revelations, first published a year ago today, sparked a global firestorm of debate and outrage about U.S. surveillance practices, not to mention considerable wing-flapping on Capitol Hill over some exceedingly modest legislative reform. But there’s one subject that many surveillance reformers won’t touch with a 10-foot pole: whistleblower protection for people working for the government in the intelligence and national security sectors.

No legislative proposal to protect a contractor like Snowden has gotten traction on the Hill so far. And intelligence and national security workers lack the enforceable rights that other federal employees have against retaliation for calling out wrongdoing.

Worse, no one in the United States has a clear legislative defense against punishment for revealing government secrets to the public – not even if those secrets concern violations of the Constitution, international law, or outright crimes. Indeed, the heavy blunderbuss of the Espionage Act, a law aimed at punishing leaks to the enemy, doesn’t exempt those who try to alert the public to grave misconduct.

Snowden had watched the government destroy the careers of stalwart career officials when they tried to report wrongdoing through existing channels. He had seen the relentless prosecution of Chelsea Manning, even after that WikiLeaks source pled guilty to offenses that could send her to prison for 20 years.

Snowden says he attempted many internal complaints, but knew that they would not produce change if they were kept from the public. Those who find it distasteful that Snowden’s shelter is Vladimir Putin’s Russia should surely be interested in pushing to make it possible for whistleblowers to find protection in the United States.

Instead, the Obama administration seems intent on turning the screws harder on any insider who might talk to the public without authorization. A new directive reportedly bars intelligence employees from unauthorized discussion with the media of even unclassified information so long as it is “related” to intelligence. In other words, you could now in theory be punished for helping a reporter to understand intelligence policies, even if they aren’t secret.

Yet another policy forbids government insiders from even referring publicly to leaked documents or media reports about them – information pretty much everyone else in the world can talk about.

These policies are not only Kafkaesque, they are profoundly damaging to basic rights and democratic accountability. In a culture of over-classification and secrecy, insider leaks are vital to any type of national security reporting. When only “authorized” leaks are available, the media becomes an instrument of government propaganda, and democracy withers on the vine.

The repercussions of the Manning prosecution and the Snowden indictment go far beyond these individuals. Many who published or assisted these whistleblowers now live in the shadow of government retaliation, including Julian Assange, who will soon begin his third year of confinement in the Ecuadorean Embassy in London. Assange faces allegations of sexual assault in Sweden that he says he would answer, but with the open threat of a U.S. grand jury investigation, cannot risk leaving the embassy for fear of extradition to the United States.

But the fear of retaliation also looms over journalists, professionals, assistants and supporters who helped connect Snowden and Manning to the public, and who variously endure searches, confiscations, detention, threat of arrest, and self-imposed exile. Indeed, the signal from government is clear: publicize wrongdoing in the use of official surveillance at the risk of your freedom.

It is time for Congress to address not just the suffering inflicted on these particular people, but the pall that whistleblower persecution casts on the media at large, and consequently on us all.  Affirmative protections for the media and their sources should be put forward, in the form of both enforceable legal rights and robust defenses.

Why protect those who spill secrets? Because the public has a right to know when officials who act in its name secretly trammel rights. Real national security in a democracy demands no less.

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Topics: Technology • United States • WikiLeaks

soundoff (26 Responses)
  1. greg

    This country does need more laws to protect whistle blowers like Edward Snowden. Without him, the abuse being perpetrated by NSA would just go on and on!

    June 5, 2014 at 4:01 pm |
    • j. von hettlingen

      State secrets are sensitive issues. Governments all react negatively to leaks, whether they are justified or not!

      June 9, 2014 at 1:00 pm |
  2. Allan Kinsman

    I can imagine the revelations coming from Mr. Snowden about a very covert government were held by government as frank treason. However I completely disagree with those politicians calling for Mr.Snowdens head. There is only clear transparent steps to an open society. A democracy is a government by, of and for said members of such a democracy. Now if we want something else we are on the way toward getting it. When it arrives it will probably be run by those not elected basing on their objectives around power to control. Then democracy will suffer and fail just like every other form of cooperative endeavor since we human beings tried living together. We must be clear not because of our enemies but to keep ourselves with an objective eye on those who seek power for their own uses.

    June 5, 2014 at 4:10 pm |
  3. Joey Isotta-Fraschini©

    I completely agree with government officials and citizens who advocate punishment for Snowden.

    June 5, 2014 at 5:18 pm |
    • Joey Isotta-Fraschini

      We'll I don't! I agree with Greg above.

      June 5, 2014 at 5:41 pm |
      • Joey Isotta-Fraschini©

        The real Joey doesn't write "we'll" for "well," and the real Joey sees from articles and comments that many persons do not comprehend the fantastic opportunity that comes with being born in the USA.

        June 5, 2014 at 6:18 pm |
      • banasy©

        Faux Joey @ 5:41 – being as you are Greg above, that's hardly surprising.

        June 5, 2014 at 9:00 pm |
  4. Ferhat Balkan

    Edward Snowden is a whistleblower not a traitor. He should be credited for exposing NSA's abuse of power for violating American citizen rights and privacy with the data collecting program. A program that in fact, didn't accomplish anything other than infringe upon personal rights of US citizens and ultimately failed to stop terrorist attacks. Snowden gave up a life of six digit salary and comfort for a life on the run to expose the truth. I think he should be applauded for that.

    June 5, 2014 at 7:19 pm |
    • George patton

      Thank you, Ferhat. I fully agree.

      June 6, 2014 at 1:12 am |
    • Joey Isotta-Fraschini©

      One man sees Snowden as a whistleblower, another man sees him as a traitor.
      I see Snowden as a traitor.
      Any further need to rethink needs to consider the electric chair and oatmeal boxes.

      June 6, 2014 at 5:08 am |
      • Joey Isotta-Fraschini

        And I see Edward Snowden as both a whistle blower and a hero. Those who rant against him probably never got past the 8th grade or are right-wing nut jobs. With all these anti-Snowden rants here, one can clearly see just how much ignorance and fanaticism is running rampant all across the country!

        June 6, 2014 at 9:48 am |
  5. bobcat2u

    I used to have a whistle. I used to blow that whistle in the house, until my dad took it away from me and stomped on it. Very sad day for me.

    June 5, 2014 at 9:29 pm |
  6. rupert

    Ahh, bobcat2u.

    June 5, 2014 at 10:37 pm |
  7. chri§§y

    Amen @ Ferhat!!! What a collosal waste of our hard earned tax dollars the NSA is! And if after over 60 years they still cant prevent terrorism on US soil then they never will!

    June 5, 2014 at 10:47 pm |
  8. chri§§y

    Lol @ Joey....Snowden is less of a traitor than the members of Congress! They sold out the citizens of the US many years ago just to fatten up their bank accounts!

    June 6, 2014 at 2:57 pm |
    • Joey Isotta-Fraschini©

      @ chrissy:
      To me, Snowden's utility for betraying his country does not lessen the impact of lost national security.
      Stealing from the USA's finances is very common: almost every office worker in any government bureau does it. What is the largest denomination of a bill that you would slip into a Christmas card?
      Or...is it possible that I have forgotten how noble and honest every Worker is?

      June 7, 2014 at 7:47 am |
  9. chri§§y

    You are certainly ent itled to believe what you wish @ Joey. Just as i am to disagree. I dont feel he was a traitor to the citizens of the USA as the reason he blew the whistle was to inform the citizens of the betrayal to US by the very people voted in to represent us!!! He certainly didnt do it for personal gain as he lost everything by informing us! Had he not informed us, a very large percentage of the citizens wouldve had no idea of these goings on. And what our government has been doing with the dysfunctional NSA dept has in fact, put our lives in jeopardy by spying on other countries. Particularly our allies. Not to mention the huge amounts of our tax dollars wasted on this department when it CANNOT do the ONE thing that was the main reason for its purpose. And that was too be aware of attacks on US soil!!!

    June 8, 2014 at 10:54 am |
  10. Name*Cathy

    Journalists and government workers are not the only ones targeted. Innocent Americans who simply report a crime committed by someone in the government can also be targeted as "whistleblowers." These crimes committed may not have been in relation to the government worker's jobs in the first place. Where is the assistance for these people? It is too late for the average American citizen unless others in the government let the public know what can truly happen if you simply have told the truth.

    June 24, 2014 at 1:44 pm |
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