The Ethics of State Secrecy
[This is the second of a two-part analysis of ethical and legal questions pertaining to whistleblowers who expose government wrongdoing. The first part, “The Ethics of Whistleblowing” is available here. This second part goes beyond contractual considerations to look at government ownership of information and government oversight mechanisms.]
Government secrets and the “ownership” of secret government documents
The foregoing principles discussed in Part I of our analysis vitiate any allegation of criminal conduct by Edward Snowden resting on his alleged contractual duties to the NSA. His disclosures of NSA documents were certainly “unauthorized disclosures” as has been charged, but there is no reason that any government authorization should be required. Indeed, it is quite absurd to suggest that government permission should be required to disclose evidence of government criminality. But what of the remaining property-based claim that Snowden’s actions involve the “theft” of government property?
This question can be dealt with in a similar manner, by consideration of the ordinary rules pertaining to the use of property in criminal dealings. When a private firm commits a crime using its own property as an instrument of wrongdoing it loses the right to claim ownership as a safeguard against investigation. If an investigator confiscates digging equipment and barrels of toxic waste from a private firm accused of dumping these on the property of others it is no bar to this action if the firm presents a receipt showing that the equipment belongs to them. (Indeed, this would be taken as further evidence linking them to the alleged crime.) The same applies to documentary evidence of a crime — it may legitimately be taken by an investigator as a means of proving criminal wrongdoing, notwithstanding the normal ownership claim that would apply to the item.
Government claims to ownership have no special status in this regard, and do not override these ordinary principles of property rights. In fact, the situation for government claims of ownership is even weaker than for a private enterprise, since the latter will generally have acquired the tools of its criminal dealings with its own money. If a private firm unlawfully dumps toxic waste on the property of others, it is likely that it has at least legitimately purchased its own barrels and digging equipment without having also stolen these. On the contrary, government agencies are built on a system of coercion, where the resources for their operations are extracted through forcible payment from the public, i.e., through taxation. Unlike in a private firm, this gives rise to a situation in which the “shareholders” of government are forced to contribute the instruments of further criminal activity, whether they wish to participate or not. Government claims to ownership of the property in its possession are extremely dubious, and this is made more so when the claim to ownership is made in order to shield knowledge of its own operations from those very shareholders. When the claim to ownership is made to prevent the disclosure of documents detailing further criminal actions by the government, the appeal to property rights is thrice-damned!
In the case of private crimes it would be unusual that the accused wrongdoer would present a claim to ownership of documents linking himself to a serious crime. Most would want to do everything possible to avoid corroborating ownership of items proving their criminal guilt, and even if this were to be a fruitless endeavor, it would be regarded as the height of chutzpah to claim the protection of property rights to evidence of criminal wrongdoing! But government is altogether unashamed of such absurdities. Faced with clear publicized documentary evidence of extensive lawbreaking by its own agencies, the government screams across the news media “Those are our secret documents! How dare they be stolen from us!”
The necessity to operate outside the institution of government
Notwithstanding the legitimacy of Snowden’s disclosures of classified NSA material, one objection that has been raised against his actions is the fact that he went outside the official government-sanctioned channels for oversight of its agencies. According to this view, the reporting of government misconduct and criminality must be reported within the rules calculated by that same institution, by reporting to government oversight agencies or Congressional committees. If agencies of the US government engage in secret acts of despotism, an aspiring whistleblower must meekly turn to other agents of the government and ask, “Please Sir, tell me which forms to fill out. How might I go about filing a complaint that suits your requirements?”
Writing in the New Yorker, Jeffrey Toobin naïvely argues that “... our system offers legal options to disgruntled government employees and contractors. They can take advantage of federal whistle-blower laws; they can bring their complaints to Congress; they can try to protest within the institutions where they work. But Snowden did none of this. Instead, in an act that speaks more to his ego than his conscience, he threw the secrets he knew up in the air — and trusted, somehow, that good would come of it.”
Ah yes. All of those wonderful “legal options” offered to whistleblowers against the NSA. Let’s ask some former NSA whistleblowers about those wonderful options. In 2000 mathematician William Binney and senior NSA analyst J. Kirk Weibe raised concerns about the illegality and waste involved in a surveillance program at the NSA. After repeatedly raising internal concerns within the NSA they reported their concerns to a Congressional committee. As a result of this action both men were accused of having betrayed the agency by the Director of the NSA, General Michael Hayden. Hayden sent an internal memo to staff at the NSA saying that “Actions contrary to our decisions will have a serious adverse effect on our efforts to transform NSA and I cannot tolerate them.” Both men suffered retaliatory action in their careers as part of their efforts to report wrongdoing, and both ultimately left the agency.
Binney left the NSA in 2001 after voicing complaints that the agency was “purposefully violating the constitution.” In 2005 he was investigated by the FBI over suspicions of providing information to the New York Times. Despite being cleared of any wrongdoing the FBI later raided his home and confiscated his personal and business records, keeping a gun on him while he stood naked, towelling off from a shower. As a result of his whistleblowing he lost his security clearance and had to close his business. As Binney put it, “After a raid like that, you’re always sitting here wondering if they’re coming back. This did not feel like the America we grew up in.”
Thomas Drake, another NSA whistleblower, raised internal complaints within the NSA about illegality and waste of public money in a data project known as “Trailblazer.” After approximately five years of efforts to draw attention to the problem through government-mandated channels Drake finally went to the media to report NSA wrongdoing. According to media reports on his actions, “He first tried the sanctioned methods — going to his superiors, inspectors general, Congress. Finally, in frustration, he turned to the ‘nuclear option’: leaking to the media.” Notwithstanding any federal whistle-blower laws, Drake was prosecuted on a large number of charges relating to “unauthorized retention” of NSA data, and these charges were used as leverage to try to extort his assistance with the prosecution of other whistleblowers. He held out against this and eventually the government prosecution collapsed. As Drake put it, “I will never plea-bargain with the truth.”
If one expects government oversight mechanisms to exist for the purposes of actual oversight, then this all seems perverse. But if one understands the actual purpose of these mechanisms, it all makes perfect sense. The actual purpose of Congressional oversight committees and other government bodies of this kind is to create a channel to divert would-be whistleblowers, so as to trap them in a system designed to identify them for retaliation and neutralize their dissent. Moreover, in a case in which the agency under scrutiny operates an extensive surveillance network, there is a pervasive danger that this very system can be used as a weapon against its alleged overseers. Indeed, previous allegations from NSA whistleblowers suggest that the agency has surveilled the very people that sit on oversight committees and courts prescribed with overseeing its operations. Some of the most vocal and zealous defenders of the surveillance system are the same people who have been alleged to have been previously surveilled by the NSA, leading to concerns that they now defend the agency under the threat of blackmail.
In light of these considerations, it is perverse to imagine that reporting of government crimes must be done through a system mandated by the very same government that commits these crimes. It never occurs to critics of government whistleblowers that the institution of government is itself coercive and corrupting in nature, and its agents do not have the requisite incentives to offer an effective mechanism for the public exposure of its own wrongdoing. This is why Snowden must flee the United States in fear of his freedom, and perhaps even his life, while the head of the NSA can lie blatantly to the Congress, and then go straight back to collecting his government paycheck.
Snowden is the fifth major whistleblower to give information about the surveillance operations of the NSA. Unlike his predecessors he did not use the government-mandated channels of “oversight” to make complaints. Instead he systematically gathered documentary evidence of the NSA surveillance system and leaked this directly to the media, so as to give information to the public. This is precisely the reason that he has succeeded where previous whistleblowers failed. The claims of Russ Tice are still uncorroborated, but the claims from Binney, Weibe, and Drake have now clearly been vindicated by documentary evidence leaked by Snowden. Despite the previous alerts to the public, it has only been the release of clear documentary evidence from Snowden that has allowed the public to confirm the details of the NSA’s surveillance activities through its own documentation. All three of these previous whistleblowers have been interviewed about the Snowden leaks and all agree that he was correct to take his information directly to the public — that he had succeeded where they had failed.
Investigating the crimes of government: is this a crime?
We have already noted that the doctrine of unlawful agreements operates to give a philosophical basis for the legal protection of whistleblowers. Similar considerations apply with respect to property claims over documents and other items that incriminate a person in criminal wrongdoing. In fact, the general principles of unlawful agreements also operates beyond this, to a range of activities pertaining to the investigation of unlawful activities. The same philosophical principle is at work when government agents investigate the actions of private criminal organizations, such as when an undercover police officer infiltrates an unlawful criminal syndicate. In such cases, it is perfectly sensible that the investigator would give assurances of secrecy to his target, and it is entirely sensible that this also be viewed as legally and ethically non-binding.
When FBI agent Joseph Pistone (a.k.a. Donnie Brasco) infiltrated the Bonnano crime family in New York, he spent six years as a low-level associate to members of the mafia, no doubt giving various assurances of secrecy under the mafia code-of-silence. Obviously this was no bar to the legitimacy of his revelations about the actions of this criminal organization — any assurance of secrecy he had made to his mafia associates was legally and ethically non-binding.
So here we have a rather hypocritical situation. The US government claims the prerogative to have its agents infiltrate any private criminal syndicate and make phony assurances of confidentiality to their members, in order to gather evidence of criminal wrongdoing. They rightly regard the code-of-silence of the mafia as being legally unenforceable, even when their own undercover agents give assurances of silence. But faced with the same action being taken against its own agencies the US government asserts that the person gathering evidence of wrongdoing is the criminal! Here it is the code-of-silence of the US government that must prevail, in the face of documented confirmation of its own wrongdoing.
If one takes a principled approach to questions of law, as opposed to slavish adherence to the commands of government legislation, it is appropriate to regard all such instances of confidentiality as being non-binding. Whistleblowers like Snowden operate in essentially the same way as other criminal investigators, using subterfuge to gather evidence of wrongdoing and exposing this to the scrutiny of the public eye. If this freedom of speech is a problem for the operations of the NSA, and makes it difficult for the agency to operate in the way it would like, then perhaps it is the operations of the NSA that are the real problem. Here it is worth reminding ourselves of the rationale for judicial non-enforcement of unlawful agreements:
To refuse to grant either party to an illegal contract judicial aid ... tends strongly towards reducing the number of such transactions to a minimum. The more plainly parties understand that when they enter into contracts of this nature they place themselves outside the protection of the law, so far as that protection consists in aiding them to enforce such contracts, the less inclined will they be to enter into them. In that way the public secures the benefit of a rigid adherence to the law.
I hasten to remind the reader that the legal principles we have been discussing are of the normative jurisprudential variety, and so you should not expect to see such an argument run in any US court on the present matter. These institutions have long since abandoned any pretense of holding the US government to the rule of law. Nevertheless, for those who remain interested in speaking about “theft” and other similar concepts in respect to what is actually validly owned, the correct principles of contract and property will be of interest.
For Snowden, the matter is still up in the air. He has exposed the wrongdoing of men and agencies that are not subject to the rule of law, and are adept at monitoring and destroying the lives of those that displease them. While Snowden is on the run from the agencies of the US government, men like NSA Director James Clapper will remain in the circles of power, collecting their government paychecks and having their hands on the levers of the most massive apparatus of surveillance and coercion in human history.
In the face of revelations of the present magnitude it is important to keep focus on the actions of government, and not to become too consumed with contemplation of the actions of a solitary whistleblower. But there is good reason why the fate of the latter is important. If Snowden survives the onslaught of smears and legal action against him it will serve as a message to other would-be whistleblowers that could serve the public. If he is imprisoned and destroyed it will also serve as a message. This is a matter that is important to anyone who wishes to hold government to account:
In a democratic free enterprise system, a commitment to whistleblowing represents a fundamental confidence in the ability of individuals to make a difference. Society can never eradicate wrongdoing, but it can shield from retaliation those citizens who, urged on by their integrity and social responsibility, speak out to protect its well-being.
 Of course, if the crime is not proven then the property must be returned. It may also be the case that the firm would then have a legitimate legal action against the investigator for having confiscated their property without good cause. In such a case the legitimacy of the original confiscation rests on whether or not the firm really is engaged in criminal action.
 See NSA whistleblowers William (Bill) Binney and J Kirk Wiebe at the Government Accountability Project.
 E. Nakashima (2010) Former NSA executive Thomas A. Drake may pay high price for media leak. The Washington Post, 14 July 2010.
 For example, Tice alleges that the NSA has previously targeted Senator Dianne Feinstein, the head of the Senate Intelligence Committee, and Senator John McCain, former presidential candidate. Feinstein and McCain are now two of the most important defenders of the program, giving respective support to the program from both major political parties in the US; see, e.g., E. Heil. (2013) Feinstein, NSA’s top Congressional defender, has built respect over decades of service. The Washington Post, 26 June 2013; G. J. Cosker (2013) John McCain defends the National Security Agency’s surveillance programs. Examiner.com, 10 June 2013. In both cases there have been concerns expressed by some commentators as to whether the defense of the NSA has been motivated by blackmail pertaining to past intelligence gathered on these public figures.
 P. Eisler and S. Page. (2013) 3 NSA veterans speak out on whistle-blower: we told you so. USA Today, 16 June 2013.
 S. Lovgren. (2005) FBI agent “Donnie Brasco” recalls life in the mafia. National Geographic News, 10 June 2005.
 McMullen v. Hoffman (1899) 174 US 639, per Peckham J at 670.
 Winters v. Houston Chronicle Publishing Co (1990) 795 S.W.2d 723, per Doggett J at 730.