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“Ukrainegate”: Leaker, Whistleblower, Spy?

By Candice Delmas

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“I love WikiLeaks!” declared Donald Trump in October 2016, applauding the organization’s release of a trove of emails hacked from Hillary Clinton’s campaign Chairman John Podesta’s account. However, since he occupies the Oval Office, President Trump no longer likes whistleblowers. In short order, he instructed the Justice Department to seek the arrest of WikiLeaks founder Julian Assange for publishing secret military files leaked by Chelsea Manning. In March 2017, railing against the proliferation of leaks from his White House, including those alleging collusion between his team and Russia, Trump tweeted: “The real story that Congress, the FBI and all others should be looking into is the leaking of Classified information. Must find leaker now!” But the leakers kept leaking, anonymously and profusely, revealing Trump’s conflicts of interest, disregard for democratic norms, and general unfitness for the office.

Today, President Trump faces a formal impeachment inquiry over his interactions with Ukraine, after a CIA officer lodged a formal complaint regarding a July 25 call in which Trump asked Ukrainian President Volodymyr Zelensky for “a favor” immediately after discussing military aid. Since the favor in question was to investigate the son of former Vice President and 2020 Democratic frontrunner Joe Biden, many see in this instance a clear abuse of presidential power for personal or political gain – an impeachable offense. A second whistleblower has recently come forward with further (first-hand) evidence of abuse of power.

Trump and many of his Republican allies reacted to the original “leaker” or “so-called whistleblower” by demanding that the person’s identity and sources be revealed, by casting his or her anonymity as evidence of cowardice and partisanship, and by branding him or her a traitor and a spy. In a recording (which, fittingly, was leaked to the press), the president daydreams about “the old days” when the government would execute traitors and spies. This counter-offensive is familiar. In his tell-all memoir, Permanent Record, Edward Snowden writes of the U.S. government’s efforts, after he blew the whistle on its massive surveillance programs in 2013, to “evade accountability: instead of addressing the revelations, they’d impugn the credibility and motives of ‘the leaker’.” Snowden was called a traitor and a spy, and was charged under the 1917 Espionage Act.

How should we understand (conceptually) and assess (morally and politically) leaks, whistleblowing, and espionage? All three involve disclosures of classified information, usually by an agent who has special access to that information. But leaks and whistleblowing, unlike espionage, are species of denunciation: they condemn what they reveal. In contrast, spies steal and disclose classified information in order to undermine the state’s national security apparatus and harm its interests, and they so do for the benefit of another country. Spies who seek to harm the interests of their own country are further considered traitors for violating their duty of patriotic allegiance. Spies and traitors are vigilantes of sorts: they transgress, not so much the state’s monopoly of violence, but its configuration and use of concealment, for the benefit of foreign powers.

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Some scholars conceive of government whistleblowing as a kind of civil disobedience – a conscientious, nonviolent, non-evasive breach of law designed to alert the public to an unjust law or policy and call for its reform. While this framing, by situating whistleblowers in a long and venerable tradition of principled lawbreakers that includes Rosa Parks and Martin Luther King, Jr., is useful to seek to defend whistleblowers from charges of espionage, it misses the seriously problematic nature of their actions (besides being ill-fitting, since government whistleblowers often act covertly and anonymously, and seek to evade punishment). As I have argued elsewhere, government whistleblowers are vigilantes of sorts, too. They transgress the boundaries around state secrets, for the purpose of challenging the allocation or use of power (I call this “political vigilantism”). While spies attempt to undermine the state’s national security apparatus, which is essential for its self-protection, government whistleblowers purport to challenge the ends for which, and manner in which, that apparatus is deployed, including the state’s determination of the proper scope of secrecy. This does not mean that government whistleblowing cannot be justified, but it does mean that its justification needs to pass a much higher bar than, say, sit-ins do. Indeed, government whistleblowing, not civil disobedience, potentially threatens national security. This is why it is presumptively wrongful.

Political vigilantism is at the heart of unauthorized government whistleblowing, which involves the disclosure of state secrets. But whistleblowing comes in many shapes and forms, depending on the target, method, and recipient of the disclosure. The whistleblower may release confidential information targeting an organization’s wrongdoing in the corporate sector (think tobacco industry or Cambridge Analytica), in the public sector (e.g., Frank Serpico blowing the whistle about widespread corruption the New York Police Department), or in government (as Snowden, Daniel Ellsberg, and the Ukraine whistleblower did). The method and recipient of the disclosure – how the information is obtained and reported and to whom – are also critical to properly categorize and assess whistleblowing. The basic question is whether the whistleblowing was authorized or not. Some whistleblowers follow protocol and report the wrongdoing to the proper entities, who are then to investigate the claims and, if the latter prove valid, take action to correct the wrongs in question. These whistleblowers are discharging their professional responsibilities and benefit from various legal protections. If their whistleblowing is legally permissible and protected, then there is no special presumption against it to overcome – having gone through the appropriate channels basically rubberstamps it as a justified disclosure. Other whistleblowers release the information to the public, either indirectly via journalists and news outlets or directly via a platform like WikiLeaks. These whistleblowers are vulnerable to employer retaliation and lawsuits. If it is state secrets they disclosed, they will face the full wrath of the state and likely be charged as spies.

“…government whistleblowers are vigilantes of sorts, too. They transgress the boundaries around state secrets, for the purpose of challenging the allocation or use of power…”

The CIA officer who blew the whistle on Trump’s interactions with Ukraine followed protocol and is protected from retaliation under the 1998 Intelligence Community Whistleblower Protection Act – making his or her disclosure presumptively permissible. But the supposedly clear contrast between authorized and unauthorized whistleblowing doesn’t have the practical implications one might think it has – at least, not for government whistleblowers. On paper, a robust apparatus of federal and state law, from the 1912 Lloyd-La Follette Act to the 2012 Federal Whistleblower Protection Enhancement Act, shields government whistleblowers from employer retaliation. But such laws remain very limited in their scope (regarding who is covered and how much is protected). Federal employees working in the FBI, intelligence community, and military, have scant whistleblower protections compared with other federal workers. Employees of federal contractors have virtually no protections for whistleblowing under any of the laws and recent reforms.

In practice, even government whistleblowers who do everything by the book (such as Thomas Drake, a former senior executive at the NSA who blew the whistle on the domestic surveillance program years before Snowden) have been retaliated against. Under President Barack Obama, the Department of Justice has prosecuted more government whistleblowers than all the previous administrations combined. In some cases, the administration has also charged journalists as co-conspirators.

So the “Ukrainegate” whistleblower’s prospects don’t look too bright, despite having gone through the official channels. A journalist noted that the whistleblower’s identity could soon be exposed and that “losing that anonymity is almost guaranteed to bring professional and personal pain – an unfortunate reality of whistleblowing in every occupation, but above all in national security.” A law professor, similarly predicting the various woes that will befall the whistleblower, wished him or her good luck. Snowden, however, has expressed optimism about the whistleblower’s fate on the grounds that he or she challenges a person – President Trump – rather than a whole system or institution. Indeed, the whistleblower affirms the latter’s legitimacy in denouncing the corrosive effects of the former’s conduct.

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Where does this leave leaks? Leaks and unauthorized whistleblowing are often used synonymously, since one blows the whistle by leaking classified information. Yet it is worth distinguishing the two, if only to make sense of, and respond to, Trump’s charge that the whistleblower is a “mere leaker.” Michael Walzer proposes a helpful distinction: leaks reveal embarrassing information, while whistleblowing exposes wrongdoing (and patterns thereof), so that leaks and whistleblowing differ both in the scale and the gravity of their disclosure.

Masha Gessen argues that the essential difference between leaking and whistleblowing in the White House lies in the comparative risks and benefits that agents engaged in each type of disclosure are willing to take. Whistleblowers work alone, carefully collecting information while staying below the radar, and risk significant repercussions for their disclosures, such as being “fired, ostracized, libeled, stripped of security clearances, denounced as anti-American, and threatened with lifetime imprisonment.” In contrast, leakers remain anonymous and are not willing to risk suffering any serious consequences, which in Gessen’s view, warrants suspicion about their motives and methods. Some contend that the Ukraine whistleblower “probably isn’t” one, because whistleblowers act alone, while the Trump-Ukraine complaint looks like “the work of a group of people,” not “a one-person effort,” and smells like a “palace coup.” This depiction aligns with Trump and allies’ accusation of the whistleblower’s partisanship (he or she apparently has ties to a 2020 Democratic candidate) and link to the “Deep State.” Other pundits have denounced the whistleblower complaint and the impeachment inquiry it provoked as a “political putsch.”

“…we cannot expect every official in a position to expose wrongdoing to follow protocol and blow the whistle, rather than anonymously leak to journalists, given the enormous costs borne by whistleblowers.”

Snowden’s own distinction between whistleblowing and leaks, which he details in Permanent Record, illuminates these accusations (without supporting them). On his view, “leaking” should describe “acts of disclosure done not out of public interest but out of self-interest, or in pursuit of institutional or political aims.” He goes on: “I understand a leak as something closer to a ‘plant’, or an incidence of ‘propaganda-seeding’: the selective release of protected information in order to sway popular opinion or affect the course of decision making.” Snowden’s position is informed by his inside knowledge of the very many instances in which intelligence officials leak to the press some classified information in order to influence public opinion about an issue (e.g., about the threat of terrorism). An informed public needs a free press and a free press needs sources: leaks, which are critical to journalists, can thus be weaponized by government officers to manipulate the public. I agree with the risk of such weaponization though I don’t see why we should include it in the conceptual account of leaks – better to keep it in the normative evaluation.

On my view, leaks are a double-edged sword. The proliferation of leaks in Trump’s White House, which has been called “the leakiest” of all time, has revealed the president’s unfitness for the office and the threat he poses to democratic institutions (many of these small leaks exposed more than embarrassing information, pace Walzer). But these leaks have also contributed to reinforcing the Republicans’ and alt-right’s conspiratorial narrative of a Deep State operating behind the shadows to undermine a democratically elected government (cue the anonymous op-ed, ominously entitled “I Am Part of the Resistance Inside the Trump Administration”). The leaks look like a threat to democracy even as they seek to expose one. The officials and civil servants who choose to leak ought to feel some ambivalence about their disclosures because the appearance of anti-democratic action matters to the public, as it should. At the same time, we cannot expect every official in a position to expose wrongdoing to follow protocol and blow the whistle, rather than anonymously leak to journalists, given the enormous costs borne by whistleblowers. We certainly ought to heap praise on whistleblowers, but the tendency to disdain leakers and condemn leaks is out of place until the law properly protects government whistleblowers.

Disclaimer: Any views or opinions expressed on The Ethical War Blog are solely those of the post author(s) and not The Stockholm Centre for the Ethics of War and Peace, Stockholm University, the Wallenberg Foundation, or the staff of those organisations.

Published 15th October 2019

Candice Delmas

Assistant Professor of Philosophy and Political Science, Northeastern University

Candice Delmas is Assistant Professor of Philosophy and Political Science at Northeastern University, and the Associate Director of the Politics, Philosophy, and Economics Program. During 2016-17, she was a Dworkin-Balzan Fellow at the New York University School of Law Center for Law and Philosophy. Her main areas of research are moral, legal, social and political philosophy and bioethics, with a focus on citizens’ responsibilities in the face of injustice. She is the author of A Duty to Resist: When Disobedience Should Be Uncivil (Oxford University Press, 2018).

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