In a recent Harvard Law & Policy Review article, Yochai Benkler, law professor and co-founder of the Berkman Center for Internet and Society, introduced the idea of a “public accountability defense,” especially for national security whistleblowers. Benkler highlights the unique problem that national security whistleblowers encounter, facing criminal prosecution while whistleblowers in other contexts tend to be viewed as facilitators of “critical corrective” measures in their industries. He argues that this double standard deters legitimate whistleblowers and contributes to an unchecked and dysfunctional national security system.
While federal national security employees benefit from some whistleblower protections, they are not immune from prosecution. Additionally, Benkler criticizes the fact that whistleblower protections for national security contractors lag far behind other areas of government, a problem that the Project On Government Oversight has long recognized and has worked to address through policy change. Due to these gaps in protection, whistleblowers’ legitimate efforts to expose fraud, illegality, abuse, and/or waste in the national security system can cost them their freedom.
Benkler advocates a new defense to criminal prosecution for “accountability leaks,” defining those leaks as unauthorized disclosures meant to expose problematic systemic practices in national security institutions. According to Benkler, these types of leaks are rare and occur only when they would “expose substantial instances of illegality or gross incompetence or error” in important national security related activities. He further argues that this defense will not provide an incentive to leak information for the sake of embarrassing an agency or administration, but will instead provide peace of mind for a well-intentioned whistleblower grappling with the difficult decision to expose genuine problems due to the intense personal consequences.
Benkler reasons that, the idea that an insider could safely expose improper activities forces employees to act in accordance with the law. He points out that the recent increase in prosecution of national security whistleblowers has upset this balance and deterred legitimate leaks. The defense that Benkler suggests would only cover conscientious leaks that facilitate a stronger and more efficient national security system, not a weaker one.
To that end, the defense would not be applicable to any disgruntled employee who decided to leak information. First, whistleblowers must have a reasonable and objective belief that the information they are leaking will expose a violation of law. Additionally, they must take steps to mitigate possible harms to national security that the leak could cause. The burden would be on the whistleblower to prove that his or her actions qualify for the defense. The idea is that they are filling the role of a public servant, seeking to expose some sort of systemic failure that will, once remedied, strengthen national security rather than undermine it.
POGO has been pushing for reforms to protect whistleblower leaks that go through proper channels; this defense would add another tool to the reserve for whistleblowers facing prosecution and retaliation. This is especially crucial for national security contractors, who are fighting an uphill battle to get the same whistleblower protections that government employees have. The lack of protections almost force national security contractors to leak information or highlight internal inefficiencies through unauthorized channels, much like Thomas Drake did when he exposed fraud and waste at the NSA through a Baltimore Sun reporter.
Whereas in the financial sector, whistleblowers are rewarded with monetary awards taken from the fraudulent practices they expose, there is little incentive to report abuses through official channels in the national security sector if a contractor can’t even count on protection from criminal prosecution. As long as national security contractors don’t have whistleblower safeguards, a defense like this one could be the solution we need to make sure necessary disclosures continue.