Whistleblowers need protection

It’s all over for Julian Assange. The founder and director of Wikileaks, a non-profit organization that publishes secret information, was arrested in London on April 11. He will likely face extradition to the United States. This is the climax of a dramatic story reaching back to 2010, when Wikileaks published classified information provided to them by a U.S. Army intelligence analyst, Chelsea Manning. The leak included damning evidence pertaining to the U.S. occupations of Iraq and Afghanistan, including war crimes. Assange took refuge in the Ecuadorian Embassy in London in 2012. Local police could not storm the embassy to arrest him since he was granted political asylum by Ecuador that year. However, nearly seven years later, Ecuador’s patience evaporated and Assange was dragged out of the embassy in handcuffs.

The U.S. Department of Justice is salivating at Assange’s impending extradition. They’ve already cooked up a charge of conspiracy to access classified information on government computers. Federal prosecutors may look for additional charges to tack on as well, simply because they have plenty to choose from. Federal law is awash with statutes intended to destroy whistleblowers, people who expose evidence of wrongdoing in organizations, companies or governments.

A trial will decide for sure, but it’s most likely the case that Assange violated U.S. law. That’s not the end of the conversation. Laws are fallible. They do not always correspond with what is ethical, nor remain consistent with certain values that we cherish like transparency, accountability and the freedom of the press. The government possesses both the incentive to bury inconvenient truths as well as the ability to create law, which makes for a disturbing conflict of interest.

U.S. Congress passed the Whistleblower Protection Act in 1989, supposedly to protect federal employees from retaliation. But the government has been able to dodge that obstacle on numerous occasions by conjuring up the amorphous catch-all term of national security. Prosecutors can use this excuse to win cases against whistleblowers under the Espionage Act of 1917, which broadly conflates information release with disloyalty to the government during wartime. Wartime happens to be conveniently perpetual these days.

The government has weaponized the Espionage Act against whistleblowers before. Daniel Ellsberg leaked the so-called Pentagon Papers to the New York Times in 1971, which exposed lies and other shenanigans that the U.S. pulled off in Vietnam.  Manning leaked evidence of war crimes to Wikileaks in 2010, and is currently imprisoned at the time of writing for refusing to testify against Julian Assange. Edward Snowden exposed surveillance programs on U.S. citizens in 2013, but has evaded capture thus far. Reality Winner shared evidence of Russian interference in the 2016 election. The government came down hard on these whistleblowers like the Spanish Inquisition on heresy.

Whistleblowers are not spies. That’s a distinction we are failing to realize. They are revealing information about the government that we, as citizens, deserve to know. Classifying information for national security can be justifiable in certain circumstances, but that isn’t a free pass for the government to cloak its wrongdoing. We deserve to know what it does at home and abroad. When our law enforcement collects data on us, we demand that our rights be respected. When our politicians are corrupt or unethical, we demand that they are dethroned. When our soldiers commit war crimes, we demand that they are held accountable.

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This is made possible by whistleblowers and press freedom, which is why protections need to be adopted. One direct protection would be repealing the antiquated Espionage Act of 1917 and replacing it with a new law that narrowly defines what government espionage is. It should specifically stipulate that a spy is an individual in the service of a foreign government. This protects whistleblowers while still equipping prosecutors with the tools to go after real enemy spies.

The U.S. Department of Justice should also forge a greater partnership with the non-profit organization, Government Accountability Project. This should include the appointment of special rapporteurs to each new case related to whistleblowing. The rapporteurs should be employees of the DOJ that are endorsed by the Government Accountability Project as advocates for whistleblower rights, and their role would be to observe every step of the trial. The objective would be to create whistleblower trials that are fact-finders, i.e. “did you conspire with a foreign government or not,” as opposed to mechanisms to crush dissent.

To be clear, the government doesn’t actually care about the inviolability of classified information. Politicians leak information without the proper declassification procedures all the time, sometimes by mistake and other times in order to manipulate public opinion. What they can’t stand is competition, especially in regards to leaks that embarrass them. The real sin here is the activity that the government tries to hide, not the whistleblower who exposes it. As journalist Glenn Greenwald summed up, “If anything is a crime, it’s that secret, unaccountable and deceitful behavior: not the shining of light on it.”