National Security Whistleblowers: The U.S. Response to Manning and Snowden Examined
By Sandy Coliver
What sorts of penalties do public servants in Europe and elsewhere face for disclosing classified information to the media? How do procedures and penalties elsewhere compare with those in the United States?
These questions are relevant now as Bradley Manning, a U.S. army private, faces the prospect of serving a life sentence for the disclosure of more than 700,000 documents, and Edward Snowden, a government consultant, faces the possibility of prosecution for disclosing the largest secret surveillance operation ever discovered.
What is common to both is that they undeniably disclosed information of high public interest, including information about government wrongdoing. Indeed, some of Manning’s disclosures exposed evidence of possible egregious human rights violations—including gun-ship videos showing U.S. soldiers firing on unarmed civilians, and diplomatic cables that led to disciplinary actions for human rights violations committed by British troops.
Some salient differences between the two disclosures concern the degree to which the person disclosing the documents exercised discretion about what he released, the volume of disclosures and the extent of harm that the disclosures may have caused.
A new set of principles drafted by 22 academic and civil society groups around the globe, in consultation with more than 500 experts from 70 countries, provides helpful guidance.
The Global Principles on National Security and the Right to Information (called the Tshwane Principles, after the municipality in South Africa where they were finalized), assert that laws should protect public servants—including members of the military and contractors working for intelligence agencies—who disclose information to the public so long as four conditions are met: (1) The information concerns wrongdoing by government or government contractors (defined in some detail); (2) The person attempted to report the wrongdoing, unless there was no functioning body that was likely to undertake an effective investigation or if reporting would have posed a significant risk of destruction of evidence or retaliation against the whistleblower or a third party; (3) The disclosure was limited to the amount of information reasonably necessary to bring to light the wrongdoing; and (4) The whistleblower reasonably believed that the public interest in having the information revealed outweighed any harm to the public interest that would result from disclosure.
Even if the disclosure does not meet the above four criteria, the Principles recommend that the whistleblower should not be punished so long as the public interest in disclosure outweighs the public interest in keeping the information secret. To the extent that a country does have laws that criminalize disclosure to the public of classified information, any punishment should be proportionate to the harm actually caused.
These Principles reflect jurisprudence and practice from around the world. Particularly significant are two decisions of the European Court of Human Rights, which interpret the European Convention on Human Rights, a treaty that is binding on the 47 member states of the Council of Europe (the EU countries, plus most of Eastern Europe, Russia and the former Soviet Union).
The first case concerned Iacob Guja, the head of the press department of the prosecutor general’s office in Moldova, who sent to a newspaper copies of letters from public officials who were putting pressure on law enforcement bodies to drop criminal proceedings against some police officers. Guja stated that he disclosed the letters to fight against corruption, and aimed to create a “positive image” of the office rather than to do a “disservice” to it.
In 2008, the Grand Chamber of the European Court, comprised of judges from 17 countries, unanimously ruled that the government’s dismissal of Guja violated his human right to impart information as it was unnecessary in a democratic society. The Court considered several factors: lack of effective, alternative remedies; the public interest in the information; the harm caused; the reasonableness of Guja’s belief in the accuracy and importance of the information; and the severity of the penalty.
The court reached a similar result in a recent judgment concerning a case much like that of Edward Snowden’s. In 1996, Constantin Bucur, who worked in the telephone communication monitoring department of Romania’s military intelligence agency, disclosed that his agency had tapped the telephones of several journalists and politicians without proper authorization. To provide proof, he disclosed some of the audio tapes, which had been classified “top secret.” He maintained that the surveillance was not required by national security. He was convicted and sentenced to two years in prison.
The European Court noted that, given that his superiors were implicated in the irregularities, filing an internal complaint would have been unlikely to have led to an effective investigation. Moreover, a parliamentarian whom Bucur contacted, who was a member of the parliamentary oversight commission, advised him that a complaint would serve no useful purpose. The general interest in the disclosure of information revealing illegal surveillance authorized by high ranking officials was so important in a democratic society that it prevailed over the interest in maintaining public confidence in the intelligence agency. For these reasons, the Court ruled that divulging the information directly to the public had been justifiable, and that the criminal prosecution and penalty violated Bucur’s human rights.
Canadian law applies virtually the same standard and Australia and several other countries are considering legislation that would similarly strengthen protections for whistleblowers, including those who disclose classified information.
Any independent fact-finder that applies this standard, set forth in Principles 40 and 43 of the Tshwane Principles, to Edward Snowden, would surely find disclosure of the information to be of high public interest, though not necessarily of wrongdoing as set forth in Principle 37, given that the programs he disclosed were all carried out with judicial approval pursuant to statute.
The information he disclosed is clearly accurate and significant. Indeed, Principle 10E expressly includes, among categories of information of especially high public interest, which should presumptively be disclosed, “the overall legal framework concerning surveillance of all kinds” and “statistics about the use of such surveillance.”
The main issue that could deprive Snowden of full protection is whether an effective alternative to public disclosure was available. Snowden, a security sector consultant, probably could have reported his concerns to the Inspector General or a congressional oversight committee. However the oversight committees were informed and, at least two Congress members, Senators Mark Udall and Ron Wyden (both members of the Intelligence Committee), reported that their efforts to prompt an effective investigation fell on deaf ears, suggesting that nothing short of public disclosure would have been effective.
Even if Snowden could not avail himself of the full protection from all penalties afforded by Principles 40 and 43, he should, pursuant to Principle 46, be subject to criminal penalties only if the disclosures pose a real and identifiable risk of causing significant harm. In other words, mere assertions of harm to national security should not suffice. Government authorities, in order to justify any punishment, should undertake an investigation, and should explain publicly, in as complete detail as possible, the actual and specific harm caused.
Furthermore, any penalty should be proportionate to the actual harm caused. As stated by Kate Martin of the Center for National Security Studies [PDF], “what is required is a thorough articulation of the varied specific public interests and then a weighing of whether each interest is advanced by either disclosure or secrecy.”
The calculus regarding Bradley Manning might lead to a different result. He too disclosed information of high public interest. However, the extent of his disclosure arguably went significantly beyond what was necessary to disclose the information of high interest and, moreover, would make it difficult for him to establish that he had read all of the documents, let alone had formed a reasonable belief that their disclosure would serve the public interest.
On the other hand, it is not clear that the disclosures caused irreparable or even significant harm. According to the Principles, and the international case law, the public authority bears the burden of establishing that the disclosures caused harm, in part because the public authority is more likely to have access to the information needed to prove harm.
Assuming that all of Manning’s disclosures were not reasonably necessary to disclose information of overriding public importance, or that he could have made his disclosures to a member of Congress, the question then would be what penalty would, under international standards, be considered proportionate to the harm caused?
To answer this question, and to uncover best practices, the Justice Initiative together with an academic at the University of Copenhagen recently undertook a survey of the laws and practices of 20 European countries.
All of the surveyed states prescribe criminal penalties for the disclosure of classified national security information. However, where there is no espionage, treason or disclosure to a foreign state, the penalties are far less than in the US: up to two years in Denmark and Great Britain; four years in Spain and Sweden; five years in Belgium, Germany, Poland and Slovenia; and seven years in France.
Moreover, prosecutions are rare. In six countries—Albania, Belgium, Norway, Romania, Spain and Turkey—there has not been a single conviction in the past 10 years. In 11 countries, there have been just a handful of prosecutions, and even fewer convictions. Russia is the only country surveyed in which significant numbers of prosecutions have been conducted. In the past decade, 10 public servants were convicted and sentenced to terms ranging from 4 to 15 years for the public disclosure of information, including of human rights violations and the dumping of nuclear waste by government agents. The cases illustrate the serious consequences for individuals as well as the public’s right to know of excessive prosecutions for public disclosure of classified information.
Significantly, 10 states—Albania, Czech Republic, Germany, Italy, Moldova, the Netherlands, Norway, Romania, Spain, and Sweden—require the government to prove either actual or probable harm resulting from the disclosure in order for any penalty to be imposed. An additional three countries—Hungary, Denmark, and France—allow the lack of harm to be raised as a defense or mitigating circumstance.
In Britain, the United States’ closest military and intelligence ally, the maximum penalty for public disclosure of intelligence or security information is two years. Since Britain’s Official Secrets Act (OSA) of 1989 entered into force, 10 public servants with authorized access to confidential information have been prosecuted under the Act. Of those, the longest sentence—one year in prison—was served by Steven Hayden, a Navy petty officer who pled guilty to the selling to a newspaper of security and intelligence information concerning a plot by Saddam Hussein to launch anthrax attacks in the UK. In the United States, that offense would be prosecuted under the Espionage Act, the same law being used to prosecute Bradley Manning.
As stated by Open Society Foundations Senior Advisor Morton Halperin in an essay that examines the Obama Administration's prosecution of whistleblowers, “the determined efforts of the Obama Administration to use the Espionage Act to punish activities leading to publication of information creates a serious threat to the public right to know and to the process by which Americans learn about the activities of the U.S. government on national security matters.”
His recommended solution, consistent with Tshwane Principle 46(b)(i), is that actions that provide information to the public should be considered criminal only if Congress has enacted a narrow statute covering a specific and well-defined category of information meriting such protection and stating the circumstances under which government officials have committed a crime.
One question the American public should be asking is why have there been so many leaks in recent years? In addition to the relative ease of downloading documents, as opposed to having to copy them page by page as did Daniel Ellsberg, a major contributing factor surely is the huge number of documents that have been classified needlessly. We all would be better protected from actual harms if the government would identify the secrets that truly need to be kept, and focus on protecting those.
Sandra Coliver is the senior managing legal officer for civic space with the Open Society Justice Initiative.