A Public Accountability Defense for National Security Leakers and Whistleblowers, Yochai Benkler. The Harvard Law & Policy Review, Vol 8 No 2. July 2014.

“In June 2013 Glenn Greenwald, Laura Poitras, and Barton Gellman began to publish stories in  The Guardian and The Washington Post based on arguably the most significant national security leak in American history. By leaking a large cache of classified documents to these reporters, Edward Snowden launched the most extensive public reassessment of surveillance practices by the American security establishment since the mid-1970s. Within six months, nineteen bills had been introduced in
Congress to substantially reform the National Security Agency’s (“NSA”) bulk collection program and its oversight process; a federal judge had held that one of the major disclosed programs violated the Fourth Amendment; a special President’s Review Group (“PRG”), appointed by the President, had issued a report that called for extensive reforms of NSA bulk collection and abandonment of some of the disclosed practices; and the Privacy and Civil Liberties Oversight Board (“PCLOB”) found that
one of the disclosed programs significantly implicated constitutional rights and was likely unconstitutional. The public debate and calls for reform across all three branches of government overwhelmingly support the proposition that the leaks exposed lax democratic accountability of the national security establishment as well as practices widely viewed as threatening to fundamental rights of privacy and association. Nonetheless, the Justice Department pursued a criminal indictment against the man whose disclosures catalyzed the public debate. That prosecutorial persistence reflects a broader shift in the use of criminal law to suppress national security leaks in the post 9/11 state of emergency. That shift by the executive branch, in turn, requires congressional response in the form of  a new criminal law defense, the Public Accountability Defense I outline here. The past decade has seen an increase in accountability leaks: unauthorized national security leaks and whistleblowing that challenge systemic practices, alongside aggressive criminal prosecution of leakers more generally. Most prominent among these have been leaks exposing the original
“President’s Surveillance Program” (known as “PSP” or “warrantless wiretapping”), AT&T’s complicity in facilitating bulk electronic surveillance, and ultimately Snowden’s leaks. Private Chelsea (then Bradley) Manning’s disclosures to Wikileaks covered a broader range of topics and dominated newspapers throughout the world for weeks.10 The Obama Administration, in turn, has brought more criminal prosecutions against leakers than all prior administrations combined, and  Private Manning’s thirty-five year sentence was substantially more severe than any prior sentence imposed for leaks to the press. One possible explanation is that leaks in general have increased in number as a result of background technological change: digitization makes leaking documents easier and the prosecutions simply respond to the technologically-driven increase in leaks. If this thesis is correct, then the increase in prosecutions is a “natural” response to a background change in leaking
practice. There is, however, no robust evidence that the number of national security leaks has increased in the past decade or so. Moreover, the technological thesis does not fit the fact that of the sixteen national security leak and whistleblowing cases of the past decade, only two—Manning and Snowden—were facilitated by the Internet and computers. What does appear to have increased, however, is the number of national security leaks that purport to expose systemic abuse or a systemic
need for accountability. This increase mirrors a similar spike during the legitimacy crisis created by the Vietnam War. Twelve to fourteen of the sixteen cases,16 including Manning and Snowden, better fit a “legitimacy crisis” explanation for increased leaking concerning systemic failure. 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. Technology certainly does play a role. It introduced the special challenges of bulk leaks, characterized by the Snowden and Manning cases, it has made detection and prosecution of leakers easier, and it has offered an alternative range of techniques outside the government to improve the ability to diagnose from the outside what is happening, as was the case with the disclosure of the secret prisons. But the evidence does not support a thesis that there has been a general increase in leaks, nor does it support the idea that the relatively large number of leaks concerning arguably illegitimate action was primarily caused by a technological change.”