THE BLOG
10/22/2012 09:48 am ET Updated Dec 22, 2012

A Mixed Message for National Security Whistleblowers

The White House recently released a presidential directive extending legal protections to intelligence community employees who expose government fraud, waste, or abuse. Advocates for greater transparency and accountability in government applauded the move. But some observers noted a seeming discrepancy between the directive and the administration's aggressive record of prosecuting leaks within the intelligence community. Has the Obama administration turned over a new leaf when it comes to national security whistleblowers?

The directive is unquestionably a step forward. Intelligence community whistleblowers have few legal protections. They are exempted from the Whistleblower Protection Act, which prohibits agencies from retaliating against employees who reveal government misconduct. A separate law allows intelligence community employees to disclose government wrongdoing to certain agency officials and, in some cases, to the congressional intelligence committees. However, nothing in that law prevents their supervisors from retaliating against them if they make such disclosures.

The presidential directive attempts to fill this void, requiring intelligence agencies to prohibit and remedy acts of retaliation for disclosures that are permitted under existing law. The directive also permits disclosures to an expanded list of government officials.

The directive, however, does not allow any disclosures to the media. The Obama administration has pursued more criminal prosecutions against officials who leak information to the press than all previous administrations combined. It has leveraged the Espionage Act -- a law designed to target spies and enemies of the state -- to penalize whistleblowers' disclosure of classified information to reporters.

The president no doubt believes he has struck the right balance through this two-pronged approach. Intelligence community employees may flag problems through approved government channels. Given the sensitivity of classified information, however, they face harsh punishment if they blow the whistle outside these channels. Accountability is served and national security is protected - at least in theory.

The problem with this theory is that the approved channels for whistleblowing will often lead to a dead end. If an employee questions the legality of a program approved at the highest levels of government, appealing to government officials is unlikely to prompt reform. There would have been little point in an interrogator informing George Tenet in 2002 that the CIA was waterboarding detainees.

A whistleblower won't necessarily fare any better with the congressional intelligence committees. In his recent book, Power and Constraint, former Justice Department official Jack Goldsmith observes that these committees provide only "dysfunctional oversight" due to the "perverse political incentives" at play: committee members reap few political rewards from secret battles with the executive branch, and they would prefer not to be on the hook for controversial national security decisions.

The president's approach might nonetheless be justified if disclosing classified information to the press posed an intolerable risk to national security. In fact, however, experts widely agree that much classified information could safely be released. High-level government officials have estimated that 50 to 90 percent of classified documents fall into this category. "Overclassification" is the norm, not the exception.

The flaws in the Obama administration's approach are aptly illustrated by the case of Thomas Drake. While an official at the National Security Agency, Drake became concerned that the agency's use of a computer program to search through Americans' electronic communications was wasteful and illegal. He scrupulously followed official whistleblowing procedures, raising his concerns first within the agency and then informing the congressional intelligence committees. Nothing happened. So he spoke with a reporter, taking great care to limit their discussions to unclassified information.

In 2010, after a long investigation, Obama's Justice Department brought charges against Drake under the Espionage Act for improperly keeping classified documents in his home. The former chief information security officer under George W. Bush testified in Drake's defense. He opined that one of the documents at issue constituted the most egregious example of overclassification he had ever seen. The prosecution largely fell apart, but Drake was forced to plead guilty to a misdemeanor. He lost his job and his pension and spent years of his life in a terrifying legal limbo.

This is not the way to handle national security whistleblowing. A better solution would be to protect disclosures to the media by intelligence employees who have a good faith, objectively reasonable belief that the information reveals significant fraud, waste, or abuse and that the disclosure will not harm national security, and who have exhausted other whistleblowing avenues available under the law. The president should declare that he considers the Espionage Act inapplicable in such cases -- after all, that is the better interpretation of the statute -- and drop all pending prosecutions in cases meeting these criteria.

This approach would serve the twin goals of promoting accountability and protecting national security more effectively than the current protect-and-prosecute policy. And it would clarify the decidedly mixed message the administration has been sending national security whistleblowers.