Nobody Will Ever Know What To Do With Whistleblowers

published by Eric Mill on
© cesarmanuel10

I recently had an email exchange worth sharing from a Freedom of Information listserv, about the nature of whistleblowing. Excerpts posted with permission.

At the top, Dr. John Colby described whistleblowers this way:

By nature, most whistleblowers are motivated by ethical and moral concerns. They wouldn't take these risks — knowing the likely consequences —unless they had strong convictions grounded in a sense of justice.

From my interactions with government, from federal down to the local level, I don't trust them to be the arbiters of what should be protected and what should be made public. Mostly they seem to want to protect themselves and their agencies from accountability. They don't want the media to catch them in scandalous activities — which I believe government is rife with — which will embarrass agencies and kill careers.

Many contributors clearly agreed, and argued that whistleblowing put the Freedom of Information Act (FOIA) to shame as an oversight mechanism.

Near the end, I rang in to suggest that the record of the FISA Court over the last several months demonstrated that FOIA lawsuits (and surveillance-related lawsuits in general) seemed to have a much better chance of success after Snowden's leaks.

Kel McClanahan, a national security lawyer and one of my favorite contributors to the listserv, wrote a really cogent response, which I've posted below in full. The "Brad" referenced below is Bradley Moss, another national security lawyer and my other favorite contributor.

I agree in part with both of you here. What I’m seeing here is the USG deciding “ok, fine” and releasing information about surveillance. But you’ll notice that they’re not making comparably large or important releases in other cases, like the drone cases.

Would the NSA records have been released through FOIA had Snowden never happened? IMO, probably not. So that’s a good thing. But transparency as a whole hasn’t changed. This is how the government works. They have X number of secrets. They fight equally hard to keep each one of them. Then one gets out. They continue fighting for a while, and then give up and release information about that secret “in the interest of transparency.” Then they have X-1 number of secrets. It’s the transparency version of “99 bottles of beer on the wall.”

I’ve read a lot of comments sent after I logged off this morning suggesting that Brad and I are bashing whistleblowers, and we’re not. Whistleblowers have a very important role to play in society. The point I was originally trying to make, though, is that not everyone who considers himself a whistleblower is, well, a whistleblower. Many people have different views of what “the right thing” is when they want to do it, and very few people set out to do something “because it’s wrong.” Yet they can’t all be right.

A good example is the Cold War. There were quite a few spies who gave US secrets to the Russians because they believed in communism. In their minds, they were acting based on, in [Colby's] words, “strong convictions grounded in a sense of justice.” And, while I really like to avoid anything approaching an ad hominem attack in arguments like these, it’s frankly naïve to think that every single person, or even a majority of people, who leak information are doing so for “noble reasons” or, even if they are, that what they think of as “noble” is the same as your understanding.

And, to reiterate Brad’s point, not everyone understands the context for the information they read. Contrary to popular belief, not everyone with a security clearance has access to every piece of classified information in the government. Snowden was an exception, and then only because he hacked/tricked/cajoled his way into files he wasn’t authorized to be in. Most people (be they employees or contractors) have access to a small piece of the puzzle, and what they think might be harmless may actually cause quite a bit of harm if read by someone who knows more than they do. And there are many, many people in the world who know more than the average person.

I don’t want to deal with the “what if the Manhattan Project had been leaked” angle; that’s been done to death. So has the story about bin Laden changing his cell phone after he learned through a leak that we were listening in. So here’s another one for you. Sally is a mid-level administrative assistant in the CIA. She is collating a classified file for her boss and she sees a pretty picture of a happy couple lying in a field of flowers. Sally likes flowers. She scans this photo to make it her facebook background. It’s marked TOP SECRET, but she can’t tell why, and she assumes, because she’s read the newspaper, that it’s probably just overclassified and anyway, people like leakers now. She posts it on facebook.

The problem is, the reason it was classified is that the woman in the photo is an Iranian defector with a price on her head who Iran thinks is dead. Sally has no way to know this, since the file is about the other man. But the person who classified it knew it, and that’s why it was classified.

Were Sally’s motives pure? Yes. Did she think anyone could be harmed from her release of this record? No. Was she right about that?

The more detail-oriented among you may argue, “But she wasn’t publishing the photo to expose government wrongdoing!” But what if she was? You assume too much to assume that Sally’s idea of “wrongdoing” is the same as yours. There’s a large population of government employees who think that abortion is wrong, and one of them could easily decide to leak a list of all the servicemembers who had abortions performed in military hospitals because their particular “sense of justice” drives them to expose the “mass murder.” That person thinks that he/she is being a conscientious whistleblower, when all he is really doing is exposing the most private (and often painful) details of millions of soldiers and sailors to public scrutiny.

That’s why there’s a system. That’s why Inspectors General exist. That’s why there’s a Whistleblower Protection Act. Is the system perfect? Far from it. But it is necessary. I for one do not trust the most sensitive details of our government’s work (and you can decide what “sensitive” means to you) to every mid-level government employee or contractor who has deeply held convictions about something.

Kel McClanahan, Esq.
Executive Director
National Security Counselors

"As a general rule, the most successful man in life is the man who has the best information."
Benjamin Disraeli, 1880

"Quis custodiet ipsos custodes?" ("Who watches the watchers?")
Juvenal, Satire VI

I responded with this:

For the record, I definitely didn't think either you or Bradley were bashing whistleblowers, and I think you've been pretty clear about that.

I also spend a lot of time reading GAO and IG reports (and building systems to get more people to read them), have met the people who work on them, and in general over the past year have come to a serious appreciation of the sincerity and passion of the US federal government oversight community.

The reason why there's never going to be a neat, coherent conclusion to this sort of discussion is because I don't believe a neat, coherent policy is possible. Everyone agrees: whistleblowers can be great. We have some laws protecting them. Most agree that secrecy has at least some place in government. But while whistleblower protections could probably be improved, it's hard for me to see them ever allowing for the legal disclosure of warrantless wiretapping, or XKeyscore.

The dynamic is inevitable: the law will be broken sometimes by whistleblowers, and it's up to a combination of non- or quasi-legal factors (like whether or not we can catch them, apparently!) as to whether or not that person is seen well and/or punished. What a mess.

So a clinical discussion of whether or not Manning and Snowden broke the law, and whether anybody should be able to just legally do what they did, is just going to have people talk past each other. One can only say "But remember, they broke the law." so many times without criticizing their behavior, even if one is saying it in response to a perception that others just want a world run by Cryptome.

What can actually grate, for me anyway, is constantly and casually lumping Manning and Snowden in together. Maybe they fall into identical legal buckets, I don't know. But using the metrics I'm arguing are the only real ones we can use to evaluate whistleblowers after the fact (was it worth it? did they act as responsibly as possible? other personal factors important only to me?) I think they can be quite meaningfully distinguished.

We need channels, we need systems, and we need them to be taken seriously, and enforced. That means punishing people who step outside them, too. But there will always be some entropy, and every system is incomplete and capable of being wrong.

-- Eric

I'm pretty sure the points I made are obvious, but I enjoyed the chance to articulate my feelings, because I often feel like a contradiction.

I always try to build things that empower individuals over institutions, and frequently rebel against petty authority — but I also instinctively grant extensive empathy to public servants (and even politicians!), and have never felt any inclination to favor anarchy or direct democracy over traditional democratic mechanisms.

As an example, ever since their 9/11 pager messages dump, Wikileaks' US-focused leaks have tended to effectively pit these feelings against each other, leaving me queasy. On balance, over the years I've seen myself become a bit polarized and hostile to their work.

But my reaction to the reports based on Snowden's leaks has been extremely simple: this is not the Internet I was promised, this is not the Internet I've lived on and built since I was 13, and this is wrong. Since June, the ways I spend my time have been completely altered.

Despite what I believe is a far more targeted and responsible method of dissemination of leaks on Snowden's part, and far less troubling issues to reconcile regarding the content of those leaks, I doubt the law or the Obama administration will see Snowden any differently from the raft of other national security whistleblowers that have been made examples of.

As Kel explained, a whistleblower's beliefs and motivations are totally morally subjective, and I'm greatly skeptical you can create any whistleblower protections that capture that. The role of whistleblowers is inherently in defiance of the System; an agent of somewhat, possibly controlled chaos.

I'd argue one way to judge a whistleblower is how well they manage to keep that chaos under control, and on target (and the magnitude of their inevitable failure to entirely do so). As for the other ways...we may want laws, we may want guidance, but I think there's no choice but to leave them as subjective and incomplete.