National security whistleblowing: a test of democracy

WIN Op-ed, Anna Myers

What I won’t do is I won’t serve as a deterrent to drive away whistleblowers; to shut the public out of the room in which our democracy takes place.

Edward Snowden interviewed by Ewen MacAskill , Guardian, Sept 13, 2016.

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Once again Edward Snowden eloquently states why a Presidential Pardon matters as much for us as it does for him. Strange perhaps given that the vast majority of us are not in exile or facing criminal prosecution and a possible 35-year jail sentence or more if we return to our home country. What Edward Snowden is saying is that while he would dearly love to go home there are only two ways right now that he can go back to the US without undermining the principles of democratic accountability that are at the heart of his whistleblowing.

The first is if President Barack Obama decides to pardon him. Such an act on the part of the American President would allow Barack Obama to make a clean break with a deeply troubling legacy on national security whistleblower protection and it would acknowledge the public interest in the information Edward Snowden disclosed.

In fact in May 2016, Eric Holder, the former US Attorney General (2009 – 2015) and close adviser to President Obama acknowledged this fact. He said that Edward Snowden had performed a public service by raising the debate and by the changes (legal reforms) that were made as a result. Edward Snowden let the public know in the only effective way he knew how of the mass indiscriminate, and illegal surveillance conducted by the US National Security Agency (NSA) of American citizens. He based his concerns about the NSA surveillance operations in law, namely the  US Constitution, and disclosed the information to journalists who under US law can protect their sources in the interests of holding government to account. His disclosures to journalists also revealed how mass surveillance was happening on a global scale with little or no legal protection for citizens within the countries where the information was being collected and then shared across borders.

Edward Snowden’s actions continue to prompt a hugely important and ongoing public debate about the extent of national security overreach, and the degree to which secrecy protects our security or actually harms it. As a result legal changes have been made in the US and elsewhere.

The call for a Presidential Pardon is the focus of a global campaign organised by Edward Snowden’s legal team at the American Civil Liberties Union and Amnesty International. It coincides with Oliver Stone’s new movie Snowden starring Joseph Gordon-Levitt as Edward Snowden, much to the delight of many young movie buffs.

The second and more sobering way for Edward Snowden to return to the US would be if he were given safe passage back to face the criminal charges against him in a fair trial; something he has been clear all along he would be willing to do even if it meant he had to go to jail. The problem is that the Espionage Act of 1917, the law under which he is charged, is a draconian and antiquated law drafted for a different era and designed to punish spies who aid “the enemy” during war. It is not possible to defend one’s actions in the “public interest.”

The Espionage Act has been used to prosecute more individuals under Barack Obama’s presidency than any other and the charges have not been for spying but rather for disclosing information to the media. These prosecutions and threats of prosecutions seeking long jail terms have equated to what many public interest defenders believe is a “war on whistlelowers”.  Individuals have been charged even when they followed the rules. This is was what happened to Thomas Drake, a high ranking official in the NSA and a forerunner to Edward Snowden: having raised his concerns about the NSA surveillance programs 10 years earlier. Thomas Drake was fired, stripped of his security clearance, arrested, and charged for allegedly having disclosed information to the New York Times. The charges were finally dropped in 2011 but Thomas Drake’s life had already been turned upside down. He now works in retail. Chelsea Manning was also charged under the Espionage Act. She disclosed information to the media via Wikileaks and was sentenced to 35 years in jail only weeks after Edward Snowden first came forward in 2013.

In a series of breathtaking interviews published by the Guardian on June 9, 2013, Edward Snowden revealed who he was and what he done. Three days later, the Open Society Justice Initiative published the “Tshwane Principles” (a.k.a. the Global Principles on National Security and the Right to Information). The two events are linked in history even if the latter will never be etched in popular consciousness and is unlikely to form the basis of a popular movie.  The Tshwane Principles were the result of an ambitious two-year international civil society effort involving twenty-two organisations and over 500 experts in law, government, national security and advocacy. The goal was to set out clearly the principles of open government in one of the most hotly contested but deeply signficant areas of government activity, namely national security. It is in this arena that the true test of a democracy is played out.

So what is the connection between Edward Snowden and the Tshwane Principles? The Tshwane Principles articulated for the first time, clearly and authoritatively, the principles that should guide a state’s authority to withhold information on national security grounds or indeed to punish the disclosure of such information. Such guidance could not have been more timely!

Indeed, included in the Principles is a public interest defence for national security whistleblowers; the very defence that Edward Snowden should have. In a globalised world where the activities of corporations increasingly impact on public welfare, a public interest defence is also essential. We interact with corporations on a daily basis not only in the consumer good we rely on but the many public services they deliver – from life-saving drugs to running prisons. In most parts of the world, corporate information is considered private property, even when it affects the public. This is why whistleblowers in the financial sector, for example, continue to be prosecuted for “stealing” when they provide evidence of wrongdoing – despite the global financial crisis of 2007-08 when it was made abundantly clear the public has a great interest in ensuring that banks do not put profits ahead of anything else.

The actions of Edward Snowden demonstrate the need for clear and unequivocal limits to secrecy, and effective oversight. This is exactly what the Tshwane Principles deliver. A public interest defence for individual whistleblowers who risk everything to let us know when serious wrongs are being committed is not a luxury, it is a necessity. Such a defence is based on long standing legal principles of justice and equality of arms. Edward Snowden is one man who raised the alarm about the illegal surveillance activities of the most powerful national security agencies in the world. The very least we can do is ensure that Edward Snowden and other truth-tellers around the world can properly defend their actions in a court of law.