yochai benkler – Courage Foundation

In the Atlantic, Harvard Law Professor Yochai Benkler contends that reforming the National Security Agency requires immunity for public-accountability leakers like Edward Snowden. Benkler, who testified to WikiLeaks’ journalistic value at whistleblower Chelsea Manning’s trial, recently published his proposal for a legal defence that such whistleblowers could use in court, arguing that they should be able to show that their disclosures are in the public interest and necessary for democratic progress.

In his new piece, Benkler observes how the Pentagon Papers, COINTELPRO and Watergate leaks of the 1970s “helped cement the role of unauthorized public disclosure as a systemic check on the predictable cycles of error in the national-security system.” While those erstwhile leakers are now championed for exposing wrongdoing, whistleblowers of the the new millennium have been subject to prosecutions, retaliations and prison sentences.

America’s post-9/11 security state ballooned and ensured its worst policies were kept secret, precluding any accountability, save for conscientious disclosures to the press. “Without the men and women of conscience who have come out over the past 12 years and disclosed aspects of the abuses, the system would have kept on grinding,” Benkler writes.

Echoing his preface to his public-accountability defence proposal, Benkler explains,

All large systems suffer from these kinds of failures as they age, as new conditions challenge old practices, and as the rationale for processes once cherished is lost in the humdrum of bureaucratic routine… Whistleblowing is a central pillar of the way American law deals with these dynamics of error, incompetence, and malfeasance in large organizations.

However, in the national security realm, whistleblowing is not acknowledged and applauded but rather pathologised, condemned, and criminalised. Benkler says, “Only piercing the echo chamber can lead to meaningful reform in such cases, so it’s here, where the risks of error and distortion are greatest, that unauthorized disclosure is most important. We saw it with the Pentagon Papers in 1970, and we saw it again with Snowden.”

In conclusion, Benkler explains how immunity for Snowden would pave the way toward a culture of accountability that welcomes whistleblowing as necessary, inevitable, and vital.

Retroactive immunity would build constitutional culture rather than a permanent legal solution. Our (fuzzy) memories of the 1970s teach us, collectively, that unauthorized national-security leakers who expose substantial wrongdoing were heroes, and that respect, not a prison term, was their due. That is the lesson that immunity for Snowden would reinforce. It will not make leaking a low-risk activity, nor will it erase the dread of repercussions like Manning’s 35-year prison sentence. But immunity will be a strong statement to insiders that if the system has gone badly enough off track, and if public disclosure can lead to genuine benefits, then a conscientious individual can do the right thing. Even if the leak is illegal, the public will support bona fide whistleblowers who expose significant abuses, and the whistleblowers will not be forced to spend their lives in prison or exile while those whose misdeeds they exposed profit on the speaking circuit.

Read Benkler’s full article here.

Harvard Law Professor Yochai Benkler has published ‘A Public Accountability Defence for National Security Leakers and Whistleblowers,’ highlighting the value that leaks of national security information bring to American democracy and emphasizing the need for a legally permissible defence for those who bring this information to light. He outlines such a defence for what he calls “accountability leaks”, acknowledging that current law defines the term “whistleblower” too narrowly. If Benkler’s proposed defence were practiced today, Chelsea Manning might have avoided such a harsh prison term, and Edward Snowden might feel safe to return home.

Benkler has previously explained how WikiLeaks, as a legitimate journalistic outlet, helped other media outlets perform a vital check on government in ‘A Free Irresponsible Press: WikiLeaks and the Battle for the Soul of the Networked Fourth Estate.’ He expanded on that article while testifying at Chelsea Manning’s trial.

In his new piece, Benkler argues that rather than technological change, a legitimacy crisis has spurred the last decade’s spate of national security leaks documenting systemic abuse:

The post-9/11 War on Terror and its attendant torture, rendition, indefinite detention, civilian collateral damage, and illegal domestic spying created a crisis of conscience for some insiders in the national security establishment. A consideration of the actual cases of
the past decade suggests that it is this loss of legitimacy of decisions that likely underlies the increase in these kinds of systemic leaks.

Although “[c]riminal liability for leaking and publishing classified materials is usually discussed in terms of a conflict between high-level values: security and democracy”, Benkler proposes “that the high-level abstraction obscures the fact that “national security” is, first and foremost, a system of organizations and institutions, subject to all the imperfections and failures of all other organizations.” Therefore, “it would be naïve beyond credulity to believe that the CIA, NSA, FBI, and Pentagon are immune to the failure dynamics that pervade every other large organization.”

Benkler explains how secrecy precludes accountability, rendering whistleblowing essentially inevitable — and necessary to keep massive organizations in check.

Secrecy insulates self-reinforcing internal organizational dynamics from external correction. … Some leaks, however, provide a critical mechanism for piercing the national security system’s echo-chamber, countering self-reinforcing information cascades, groupthink, and cognitive biases that necessarily pervade any closed communications system. It is this type of leak, which exposes and challenges core systemic behaviors, that has increased in this past decade, as it did in the early 1970s. These leaks are primarily driven by conscience, and demand accountability for systemic error, incompetence, or malfeasance. Their critical checking function derives from the fact that conscience is uncorrelated with well-behaved organizational processes. Like an electric fuse, accountability leaks, as we might call them, blow when the internal dynamics of the system reach the breaking point of an individual with knowledge, but without authority. They are therefore hard to predict, and function like surprise inspections that keep a system honest. By doing so, these leaks serve both democracy and security.

Rather than embrace these disclosures as vital and valuable, the government has cracked down harder than ever before on leakers and, to some extent, journalists who publish secret information. Benkler encourages countering this crackdown with a defence that whistleblowers could use in court:

To address this threat, I propose that Congress adopt a new Public Accountability defence as a general criminal defence, on the model of the necessity defence. The defence would be available to individuals who violate a law on the reasonable belief that by doing so they will expose to public scrutiny substantial violations of law or substantial systemic error, incompetence, or malfeasance even where it falls short of formal illegality. It is most important to the leakers themselves, but would also be available to journalists and others who participate in disseminating the leaked information.

He details what this defence would require:

(a) reasonable belief that exposure discloses a substantial violation of law or substantial systemic error, incompetence, or malfeasance,
(b)mitigation to avoid causing imminent, articulable, substantial harm that outweighs the benefit of disclosure, and
(c) communication to a channel likely to result in actual exposure to the public

Perhaps recognizing how the Espionage Act has been interpreted in the US to allow potential for harm to monopolize courtroom debate to the exclusion of discussion of the documents’ value, Benkler notes: “The significance of the disclosed violations is the most important factor, and could dominate the outcome even where other elements, in particular harm mitigation, are weaker.”

Benkler realises that such a defence is just one part of a range of necessary support measures: “full whistleblower protection would require more robust protections to avoid “punishment by process,” most importantly a private right of action against abusive prosecutors and an attenuation of the prosecutors’ qualified immunity.”

In the full article, Benkler explains in more detail how valuable national security leaks are, using bulk data collection since 11 September 2001 as an example. He further details his proposed whistleblower defence, and, finally, recounts 22 instances of leak prosecutions since World War II.