10 July 2012

Whistles and Wispelaere

What to do about whistleblowing and about people such as Jean-Philippe Wispelaere in the 'age of WikiLeaks' (or WikiMyths) and anxieties about cyberwar and government accountability?

'Free Speech Aboard the Leaky Ship of State: Calibrating First Amendment Protection for Leakers of Classified Information' by Heidi Kitrosser in (2012) 6(2) Journal of National Security Law & Policy  notes that
The Obama Administration has initiated six prosecutions of government employees for leaking classified information. This is double the number of prosecutions brought by all previous administrations combined. The rise in prosecutions, coupled with other developments – most notably a series of disclosures from the website wikileaks – has brought a renewed focus to the first amendment status of classified information and those who disseminate it. Most of the attention and concern, however, has centered on the protections due non-governmental third parties who publish information that is leaked to them. When their attention turns to leakers, commentators most often argue or assume that leakers can be prosecuted with little or no constitutional difficulty, given their special positions of trust with respect to classified information. 
This Article challenges that conventional view. It argues that government insiders who leak classified information merit robust, albeit certainly not unlimited, constitutional protections from prosecution. It also explains that the government should have greater constitutional leeway to punish leakers through administrative sanctions tied to leakers’ insider status – for example, through dismissal from employment or security clearance removal – than through criminal penalties. The Article defends these points on grounds of constitutional text, structure, and principle in their own right and as applied to the realities of the classification system. It also analyzes judicial doctrine, explaining that while aspects of it bode poorly for leaker protections from prosecution, the overall doctrinal picture is far less bleak for leakers than is often assumed.
There is an upbeat view in 'Protecting Rights from Within? Inspectors General and National Security Oversight' by Shirin Sinnar in Stanford Law Review which comments
Courts and Congress are often reluctant to constrain the executive branch when it limits individual rights in the pursuit of national security. Many scholars have argued that mechanisms within the executive branch can supply an alternative constraint on executive power – whether as a preferred alternative due to the comparative advantages of such institutions or as a second-best option necessitated by congressional and judicial abdication. Despite this interest in the “internal separation of powers,” there is very little attention to what such internal mechanisms are actually doing to protect individual rights.
Sinnar argues that
Inspectors General (IGs), little noticed oversight institutions in federal agencies, are now playing a significant role in monitoring national security practices curtailing individual rights. IGs have investigated the post-9/11 detentions of immigrants, the use of National Security Letters to obtain personal records, coercive interrogations of terrorist suspects, extraordinary rendition, military monitoring of political protests, and many other controversial counterterrorism practices.
Analyzing five reviews at the Departments of Justice, Homeland Security, and Defense, and the Central Intelligence Agency, I argue that these investigations varied significantly in independence and rigor. At their strongest, IG reviews provided remarkable transparency on national security practices, identified violations of the law that had escaped judicial review, and even challenged government conduct where existing law was ambiguous or undeveloped. Such reviews protected rights where courts had failed and significantly reinforced other forms of oversight. At the same time, even stronger reviews largely did not result in remedies for most victims, repercussions for high-level executive officials, or significant rights-protective constraints on agency discretion.&
These case studies illuminate the potential strengths and limitations of IG rights oversight: IGs are well-suited to increase transparency, evaluate the propriety of national security conduct, and reform internal procedures; on the other hand, their independence can be undermined, they may avoid constitutional questions, and they rely on political actors to implement reforms. IGs can help protect individual rights against national security abuses and should be modestly strengthened, but do not displace the need for robust external oversight of the national security executive.
Obama's performance is critiqued in the 86 page 'Whistleblowers and the Obama Presidency: The National Security Dilemma' by Richard Moberly in (2012) 16 Employee Rights and Employment Policy Journal, which comments -
As a candidate for President, Barack Obama promised to protect whistleblowers because they are, in his words, “watchdogs of wrongdoing and partners in performance.” Three years into his Presidency, Obama’s record often demonstrates strong support for employees who disclose government misconduct. He appointed whistleblower-rights supporters to key administrative posts and fought to include robust whistleblower protections in his key legislative accomplishments, such as the economic stimulus package, health care reform and the financial reform bill.
However, the Obama Administration’s treatment of national security whistleblowers has been decidedly less emphatic and more nuanced. His Administration aggressively prosecuted unauthorized disclosures related to national security and objected to reporters claiming a privilege not to reveal their sources. Moreover, a substantial legislative reform of federal employee whistleblower protections remained in limbo for much of Obama’s Presidency in part because of his Administration’s concern that the proposed law would provide too many rights to national security whistleblowers. 
This Article examines and critiques this apparent contradiction in President Obama’s whistleblower agenda and also explores ways in which the Obama Administration might satisfy its national security policy objectives without undermining whistleblower protection.
Perspectives on Wispelaere, secrecy and whistleblowing are provided in Rod Tiffen's 'Why Political Plumbers Fail – Hypocrisy and Hyperbole in Leak Control' [PDF], Andrew Wilkie's self-regarding Axis of Deceit: The Extraordinary Story of an Australian Whistleblower (Black Inc., 2004) and the 2010 Australian Law Reform Commission report on Secrecy Laws and Open Government in Australia (ALRC Report 112).