When Can a Government Employee Blow the Whistle?
Are the wiretap leakers breaking the law?
The Department of Justice revealed on Friday that it is investigating the leak of classified information about the National Security Agency's domestic surveillance program. Three weeks ago, a New York Times article by James Risen and Eric Lichtblau described a secret executive order to allow some domestic wiretaps without a warrant. According to the article, "[n]early a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters … because of their concerns about the operation's legality and oversight." Are you allowed to leak government secrets to expose an illegal act?
No. According to federal whistle-blower protection law, members of the intelligence community are not protected if they divulge classified information to anyone without the proper security clearance, even if they think they have evidence of a crime. They can, however, pass along what they know to higher-ups and internal auditors within the bureaucracy without fear of retaliation. Provided they go through the proper channels, they can also spill the beans to a member of Congress who has the appropriate clearance. (The Intelligence Community Whistle-Blower Protection Act of 1998 covers this scenario.)
If identified, the Times' leakers might argue that the information they divulged was improperly classified. Executive Order 13292, which covers secret national-security information, says that nothing can be classified so as to "conceal violations of law, inefficiency, or administrative error." With this in mind, they might claim that the domestic wiretap information wasn't actually secret, since it had been classified incorrectly.
Executive Order 13292 also says that if you're authorized to have classified information and that you, "in good faith, believe its classification status is improper," you are "encouraged and expected to challenge the classification status." That means that you should pass along your concern to higher-ups or an appeals panel, without fear of retribution. Federal employees also have a general obligation to pass along evidence of official misconduct through official channels. (See, for example, this presidential memo on "Official Conduct.") This obligation wouldn't apply to leaks to the press unless the information had been improperly classified.
National security whistle-blowers are rarely brought up on criminal charges, since it's very hard for the government to prove that a leaker intended to break the law. (Only one * official has ever been convicted of leaking classified information to the press.) The whistle-blowers are more likely to face administrative sanctions—they might lose their security clearance, for example, or get fired.
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Explainer thanks Tom Devine of the Government Accountability Project and Mark Zaid of Krieger & Zaid.
Correction, Jan. 5, 2006: This piece originally and incorrectly stated that two men have been convicted of leaking classified material to the press. Jonathan Randel, who sold unclassified DEA information to a British publication, was convicted under a law that prohibits stealing or improperly selling government property. ( Return to corrected sentence.)