There has been a media circus surrounding the escapades of Bradley Manning and Edward Snowden, the most notorious whistle-blowers of our time. But what is largely missing from the conversation of whether they are heroes or traitors is what the government should be doing to prevent the next national security whistle-blower from leaking classified information to the press.
As it currently stands, the government seems to think that locking away these whistle-blowers for life will do the trick. This, coming from an administration that appreciates the value of whistle-blowers, having presided over the largest expansion of whistle-blower protections in decades. It just does not consider Manning or Snowden the kind of whistle-blower worth protecting.
The problem is that there is a real question as to what else they could have done. Sure, they could have taken their concerns up their respective chains of command. They could have complained to the Department of Defense inspector general, the independent watchdog responsible for keeping our military and intelligence operations in check. Or, they could have gone to Congress.
Any of these alternative channels would have presented a more prudent and thoughtful approach than running headlong to the press. Unfortunately, the government has taken a stubborn and incongruous stance against these kinds of whistle-blowers. When it comes to issues implicating national security, the government apparently does not want to hear from them.
That is why, despite the recent proliferation of whistle-blower legislation, those who work in the intelligence community remain left out in the cold. The recently amended Whistleblower Protection Act, the central law protecting government whistle-blowers, specifically excludes them. So does the soon-to-be-implemented National Defense Authorization Act, which will expand whistle-blower protections to military contractors. Even the Intelligence Community Whistleblower Protection Act, the very statute designed to protect this suspect class, belies its title by offering no such protection at all.
The truth is we are never going to stop these whistle-blowers. No matter how severe the punishment meted out against Manning and Snowden, there will always be those driven to say something when they see something that rubs against their moral compass. And we should be grateful. The need for strict oversight and accountability is just as important with national security as it is in any other context — perhaps more important these days. We simply do not want these whistle-blowers running to the press.
So if the government really wants to prevent the next Manning and Snowden, it should spend less time worrying about setting an example with them. Instead, it should devote its energy to providing these kinds of whistle-blowers with the same incentives and protections it affords everyone else. This means providing a clear, safe and meaningful channel through which they can take their concerns without risk of being ignored or punished in the process. And it means educating the intelligence community that their concerns will be taken seriously.
President Barack Obama has already set the groundwork for just such an enlightened approach. Last fall, he issued Presidential Policy Directive 19 to shore up what he obviously considered to be a gaping hole in the whistle-blower law. It would prohibit retaliating against whistle-blowers in the intelligence community as long as they made their disclosures within the proper confidential channels (not the press) and would provide significant remedies where retaliation is found.
The directive has its shortcomings. It does not apply to government contractors and provides only limited protection for disclosures to Congress. Nevertheless, it is a good starting point and, if ever enacted into law and prominently promoted within the intelligence community, it might go a long way in fending off the next national intelligence debacle. Short of that, it is not Manning or Snowden or the whistle-blower that inevitably comes next who alone should be blamed for going public with national security concerns.
Gordon Schnell and Marlene Koury are attorneys in the New York office of Constantine Cannon, specializing in whistle-blower and fraud law.