If you visited this site yesterday or The New York Times or The Guardian, you are likely aware that a person was stopped at an airport in London, detained, and British officials confiscated classified documents supposedly carried in encrypted storage devices. These documents related to NSA programs dealing with the collection of metadata to prevent terrorism events and who knows what else.
It was amateur hour.
The events raised a lot of questions in my mind, some of which will be dealt with in this diary, and others, hopefully, in the comments that follow:
1. I didn't vote for the leakers; and I certainly don't think, given their actions, that they should be making policy decisions on my behalf. Rather, I voted for legislators and a President who erected a Whistleblower procedure to handle these matters. I would like to see those procedures followed; don't you?
2. If you don't, what changes to the Whistleblower policies would you like to see occur?
3. If British Intelligence figured out that the detained traveler carried classified American material, why couldn't the Chinese, North Koreans or Russians?
4. Would all of the Soap Opera yesterday, and, indeed, all of the Soap Opera since the inception of the leaks have occurred if proper Whistleblowing procedures had been used?
5. When a person without authorization takes classified documents from the Government, does that person owe a duty of care to act reasonably with the documents?
6. As a site determined to promote more and better Democrats, and, at least in my mind, more and better Government, shouldn't we be trumpeting Whistleblower procedures and not alienating people from them?
Taking the last question first, I believe that a sound Government has ample and well-thought-out whistleblower protections. In this country, Federal law has provided what is called the Whistleblower Protection Act since 1989. In 2012, President Barack Obama expanded upon that with the Whistleblower Protection Enhancement Act to much acclaim from such organizations as Climate Science Watch and the Government Accountability Project. Moreover, there is a regulatory lattice-work of provisions allowing for everyone from a Federal Civil Service employee to a Department of Defense contractor to use a procedure, prescribed by law, allowing him or her to blow the whistle on governmental illegality, fraud or corruption. Moreover, if you are a private employee and see your employer violating Federal laws or regulations dealing with occupational safety, the EPA, securities laws, FAA regulations, government bidding, and many other areas, you are also afforded protections.
These procedures are real. The protections are there. In fact, the Federal Government in 2012 likely set an all-time record for whistleblowers. There were probably well over 1,000 individuals who blew the whistle on governmental or private contractor illegality in 2012. That is a trend that I'd like to see continue. On the other hand, the use of the "War on Whistleblowers" meme, to me, seems not only disproved by the facts, but also the law. Most importantly, we might see a "chilling" effect to actual, good, productive whistleblowing if that meme is allowed to distort reality.
Factually, the meme is disproved by the sheer weight of numbers. Thousands and thousands of people have claimed whistleblower status in recent years. Yet, because five or six people who have taken classified information from the Government have been prosecuted, there's supposed to be a war. Moreover, by definition, those folks weren't whistleblowers, or, in a couple cases, although they ostensibly followed the whistleblower procedures, they still stole Secret Government documents or property, which means that they might have been a whistleblower for one narrow reason, but they also committed crimes.
Over the fold, let's discuss the fourth question.
The fourth question was this: "Would all of the Soap Opera yesterday, and, indeed, all of the Soap Opera since the inception of the leaks have occurred if proper Whistleblowing procedures had been used?" Up until now, I've avoided using names, as that seems to get people riled up around here. But for this question, I think it is necessary to name names, starting with the sad case of Bradley Manning.
I believe that if Manning had followed proper whistleblower procedure, by putting only videos, documents or other materials showing actual governmental illegality in an email to the Office of Special Counsel or the Department of Defense Inspector General, he would not only have not gone to prison, but he would've been treated as a hero by everyone (except the criminals).
In the case of Edward Snowden, I don't think he ever would have followed the Whistleblower procedures because, so far, I haven't seen anything he's disclosed that has shown illegality, corruption or fraud on the part of the Government. All he has shown so far is that the system works to find and alleviate potential privacy rights infringements. He may disagree with the policy, but the Whistleblower Protection Act does not envision simple policy disagreements as the basis for whistleblowing. This, of course, raises the question: Do we want every person working in or with the NSA to be policymakers? Another question is this: What changes to the Whistleblower statute would you like to see that would allow for policy disagreements?