Washington’s War on Leaks Highlights Shortcomings in Law and Practice

The current level of prosecution of leakers of government information in the United States is unprecedented—and threatens government accountability in the security sector, as well as media freedom.

Most famously, Edward Snowden, the former National Security Administration (NSA) sub-contractor, is facing Espionage Act charges for disclosing a massive web of U.S. government surveillance that even its staunchest defenders within the U.S. acknowledge should not have been secret.

But Snowden is just one of a growing number of people employed to work in the United States security sector charged in recent years for unauthorized leaks, often of information of great public interest.

Journalists and others outside of the government have also been affected by the current administration’s war on national security leaks. Journalists have been subject to targeted surveillance, ordered to disclose their sources, and in the case of Wikileaks, threatened with prosecution. The federal government also secretly, and notoriously, subpoenaed two months of phone records from the Associated Press news agency, and labeled a journalist, in court filings, a “co-conspirator and/or aider and abettor” who had likely acted illegally himself in his receipt of leaked information.

A lone dissenting judge who rejected the Obama Administration’s efforts to force a reporter to testify about his sources stressed that for “public opinion to serve as a meaningful check on governmental power, the press must be free to report to the people the government’s use (or misuse) of that power.”

The Open Society Justice Initiative has raised concerns about this depressing state of affairs before the UN Human Rights Committee, which is conducting its periodic review today and tomorrow (March 13 and 14) of how the U.S. is shaping up—or not—to its commitments under the International Convention on Civil and Political Rights, which it ratified in 1992. Our submission provides an overview of how the U.S. falls short of international standards for fulfilling its obligations under Article 19 of the covenant, which covers freedom of expression and the right to information. 

We argue that U.S. law does not adequately protect disclosures by public servants in the public interest. The main law punishing national security leaks, the Espionage Act, was enacted during World War I to punish spies who disclose protected information to a foreign enemy. But it has been used more broadly to punish disclosures to the public, or the unauthorized possession of information without even any intent to disclose to anyone, let alone a foreign enemy. Criminal penalties under the Espionage Act are harsher than in many other democratic countries, as well as being more broadly applicable with fewer protections and limitations.

The United States has a whistleblower protection regime, but it largely does not apply to security sector personnel. The Intelligence Community Whistleblower Protection Act (ICWPA) of 1998 does not protect even internal whistleblowers from retaliation, and any disclosures outside of the limited designated oversight mechanisms are never protected. A 2012 presidential policy directive purports to go further to support internal security sector reporting of wrongdoing. However, it does not provide for any legal mechanism to redress retaliation, is not binding, and does not apply to contractors or the military.

U.S. law criminalizes conspiracy to disclose information, without sufficient protections for journalists or public watchdogs. This risks criminalizing journalists and other public watchdogs for performing their professional obligations – seeking information from government sources – and jeopardizes their freedom to work without pressure to reveal their sources or limit their reporting or analysis.

Government information—including related to the security sector—is, by default, public. The need to protect national security may justify legitimate restrictions on the public right to access government information. However, any restrictions must be limited, necessary and proportionate.

A 2013 set of Global Principles on National Security and the Right to Information (the Tshwane Principles) provide a guide on appropriate limitations on penalties for unauthorized disclosures. The principles limit criminal penalties to situations in which the law defines “narrow categories of information” whose disclosure poses a “real and identifiable risk of causing significant harm” that overrides the public interest in disclosure. They recommend protection against any form of penalty for the disclosure of wrongdoing, and delineate a public interest defence even in the absence of wrongdoing.

The extent to which current U.S. law and practice is at odds with international standards was demonstrated last year, when the European Court of Human Rights considered a case not dissimilar from the Snowden case—concerning the disclosure of irregular surveillance authorized by high-ranking Romanian officials. The court recognized the interest in maintaining public confidence in the intelligence agency, but found that the public interest in the disclosures outweighed the government’s interest in keeping the information secret.  It rejected any criminal penalties for the leaker as a violation of freedom of expression. In a related case, the European Court recognized that “the acts or omissions of government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the media and public opinion.”

Members of the media and other public watchdogs must be permitted to both investigate and publish information of public interest, without threats to their freedoms, and also to protect their sources. The primary, or exclusive, responsibility to protect the confidentiality of government information, when confidentiality is justified, lies with the State. Thus, disclosure of government information by the media or other members of the public should not be punished.

Public disclosures can serve as an important check on the ubiquitous over-classification of government-held information, and ensure public access to information of great public interest. Public scrutiny of state activities, including in the security sector, safeguards against abuse by public officials and ensures democratic participation and oversight of policymaking.

Yet U.S. law, and its current application, have an undeniable chilling effect on such disclosures. Indeed, that is the government’s intention.