Imagine a CIA agent who witnessed behavior that violated the Constitution, the law, and core human rights protections, like torturing a prisoner. What would we have her do? Government officials say that there are internal channels in place to protect whistleblowers, and that intelligence employees with security clearances have a moral obligation to refrain from airing complaints publicly, via the modern press. In contrast, whistleblowers like Daniel Ellsberg, Chelsea Manning and Edward Snowden–as well as journalistic entities like theWashington Post, The Guardian, and the New York Times–believe that questionable behavior by intelligence agencies should sometimes be exposed, even when classified, partly because internal whistleblower channels are demonstrably inadequate.
Reasonable people can disagree about whether a particular leak advances the public interest. There is always a moral obligation to keep some secrets (e.g. the names of undercover agents in North Korea). But if official channels afford little protection to those who report serious wrongdoing, or fail to remedy egregiously unlawful behavior, the case for working within the system rather than going to the press falls apart*. As Hilzoy wrote in 2008, while defending a Bush-era whistleblower, "It is generally better for all concerned if whistle-blowers operate within the system, and it is dangerous when people freelance. But there's one big exception to this rule: when the system has itself been corrupted. When you're operating within a system in which whistle-blowers' concerns are not addressed–where the likelihood that any complaint you make within the system will be addressed is near zero, while the likelihood that you will be targeted for reprisals is high–then no sane person who is motivated by a desire to have his or her concern addressed will work within that system. That means that if...you want whistleblowers to work within the system, you need to ensure that that system actually works."
Today, there is no credible argument that the system works–that internal channels offer adequate protection to whistleblowers or remedy most serious misdeeds. U.S. officials claim otherwise. They know that no American system of official secrets can be legitimate if it serves to hide behavior that violates the Constitution, the law, or the inalienable rights articulated in the Declaration of Independence.
That they defend the status quo without being laughed out of public life is a testament to public ignorance. Most Americans haven't read the stories of Jesselyn Radack, Thomas Drake, or John Kiriakou; they're unaware of the Espionage Act's sordid history and its unprecedented use by the Obama administration; they don't realize the scale of lawbreaking under President Bush, or that President Obama's failure to prosecute an official torture program actually violates the law; and they're informed by a press that treats officials who get caught lying and misleading (e.g., James Clapper and Keith Alexander) as if they're credible.
Still, every month, more evidence of the national security state's legitimacy problem comes to light. McClatchy Newspapers reports on the latest illustration that whistleblowers have woefully inadequate protection under current policy and practice:
The CIA obtained a confidential email to Congress about alleged whistleblower retaliation related to the Senate’s classified report on the agency’s harsh interrogation program, triggering fears that the CIA has been intercepting the communications of officials who handle whistleblower cases. The CIA got hold of the legally protected email and other unspecified communications between whistleblower officials and lawmakers this spring, people familiar with the matter told McClatchy. It’s unclear how the agency obtained the material.
At the time, the CIA was embroiled in a furious behind-the-scenes battle with the Senate Intelligence Committee over the panel’s investigation of the agency’s interrogation program, including accusations that the CIA illegally monitored computers used in the five-year probe. The CIA has denied the charges. The email controversy points to holes in the intelligence community’s whistleblower protection systems and raises fresh questions about the extent to which intelligence agencies can elude congressional oversight. The email related to allegations that the agency’s inspector general, David Buckley, failed to properly investigate CIA retaliation against an agency official who cooperated in the committee’s probe, said the knowledgeable people, who asked not to be further identified because of the sensitivity of the matter.
Today's CIA employees have witnessed torturing colleague in the agency get away with their crimes; they've watched Kiriakou go to jail after objecting to torture; and now, in the unlikely event that they weren't previously aware of it, they've been put on notice that if they engage in whistleblowing through internal channels, during the course of a Senate investigation into past illegal behavior by the CIA, even then the protections theoretically owed them are little more than an illusion. Some in Congress have expressed understandable concern. Director of National Intelligence Clapper responded in a letter stating, "the Inspector General of the Intelligence Community... is currently examining the potential for internal controls that would ensure whistleblower-related communications remain confidential."
In other words, adequate safeguards do not presently exist. This is partly because not enough legislators care about or even know enough to understand the problem. And it is partly because the problem starts right at the top, with Obama and his predecessor. As Marcy Wheeler persuasively argues, the CIA gains significant leverage over the executive branch every time they break the law together:
- Torture was authorized by a Presidential Finding — a fact Obama has already gone to extraordinary lengths to hide
- CIA has implied that its actions got sanction from that Finding, not the shoddy OLC memos or even the limits placed in those memos, and so the only measure of legality is President Bush’s (and the Presidency generally) continued approval of them
- CIA helped the (Obama) White House withhold documents implicating the White House from the Senate
Wheeler adds, "This is, I imagine, how Presidential Findings are supposed to work: by implicating both parties in outright crimes, it builds mutual complicity. And Obama’s claimed opposition to torture doesn’t offer him an out, because within days of his inauguration, CIA was killing civilians in Presidentially authorized drone strikes that clearly violate international law." Obama is similarly implicated in spying that violates the 4th Amendment. When illegal behavior is endorsed by the president himself, when there is no penalty for blatantly lying to Congress about that behavior, how can internal channels prompt reform?
The public airing of classified information over national security state objections has been indispensable in bygone instances like the Pentagon Papers, the Church Committee report (back when Congress was doing its job), and the heroic burglary of the COINTELPRO documents. I believe history will judge Chelsea Manning and Edward Snowden as wrongly persecuted patriots like Daniel Ellsberg. The notion that they should've raised their concerns internally won't be taken seriously, because a dispassionate look at the evidence points to a single conclusion: the United States neither adequately protects whistleblowers nor keeps lawbreaking national security agencies accountable through internal channels. The next time a leak occurs, the national security state's defenders should blame themselves for failing to bring about a system that can adequately police itself. If their historical and recent track record weren't so dismal they'd have more legitimacy.
*There is, of course, a sense in which going to the press is "working within the system," if by "the system" one means the Constitution, which guarantees a free press precisely so that the public can get information that the government would rather suppress.