Whistle-blowers and Democracy: A Reply to Fung

July 15, 2013

In his recent essay, “What the Snowden Affair Tells Us About American Democracy,” Archon Fung investigates what led Edward Snowden to undertake the high wire act that has brought him halfway around the world. Fung’s examination reveals deficiencies in American democracy that apparently need to be rectified. According to him:

The ways in which Snowden took his grievances about American democracy to Guardian columnist Glenn Greenwald, then fled to Hong Kong, now to Russia, and perhaps to Latin America in the future, show just how broken the institutions governing the national security debate and whistle-blowing are.

I respectfully disagree.

A little by way of context: Over the past two centuries American democracy has developed a messy but quite effective way of striking a balance between secrecy and transparency. It has, in effect, condoned what Alexander Bickel famously termed an “unruly contest” between the government, on the one hand, and recalcitrant officials and the press, on the other, with the latter trying to ferret out secret information and the former trying to conceal that very same information. This “recurrent pattern” in American history was first noted by Arthur Schlesinger, who observed in The Imperial Presidency:

When the republic faced a hard decision in foreign policy and the executive branch had not revealed facts that would enable the people to reach their own judgment, aggrieved citizens felt themselves morally warranted in violating a system of secrecy exploited (as they earnestly believed) by government against the national interest.

These disclosures certainly did not go unchallenged. The first censure cases ever lodged against Senators—Timothy Pickering in 1811 and Benjamin Tappan in 1844—were for unauthorized disclosures. In 1890, for instance, the Senate created a so-called “smelling committee” that spent more than five months investigating reporters, staffers, and even senators, in an effort to trace the source of leaks concerning treaty provisions. A recent study by Richard Kielbowicz has shown that in the 19th century Congress asked more than two hundred journalists to reveal their sources, and incarcerated at least ten of them for failing to cooperate—most notably Nathaniel Rounsavell of the Alexandria Herald in 1812, John Nugent of the New York Herald in 1848 and Zebulon White of the New York Tribune in 1871.

So the Snowden imbroglio is not particularly new (and those who recall the case of Philip Agee will know that even Snowden’s modus operandi is not wholly unprecedented). It is simply another episode in a longer story. If his travails imply an institutional failure, then American democracy has evidently been “broken” for some time now.

The contest between the government and the press has undoubtedly become more frenetic in recent decades. It is not hard to see why. Until the early part of the twentieth century, the government had relatively little need or capacity for deep secrecy. However, following America’s immersion in international politics, the need for intelligence, and therefore, secrecy, increased exponentially. The steady increase in the scope and scale of secrecy stoked real and imagined fears about the abuse, which in turn prompted unauthorized disclosures, and consequently much gnashing of teeth about the riskiness of this oversight mechanism.

Consider, for instance, what Schlesinger had to say following the Pentagon Papers episode. The danger in relying on a “rebellious collaboration between anonymous and disgusted officials and the press,” he observed, was that there could be too little or too much disclosure, depending on the proclivities of the officials and reporters involved. “Might it not be better,” he asked, “to maintain the balance between secrecy and disclosure in a less nerve-racking way?”

Sound familiar?

Fung, it turns out, is not alone in being disturbed by the “unruly contest” described above. Let me be clear: Fung is right to be disturbed. The contest that American democracy relies upon is a dangerous way to go about striking a balance between secrecy and transparency. Snowden, for instance, has apparently placed secrets on encrypted servers around the world as an “insurance policy” against retaliation. This cat-and-mouse game, Fung rightly notes, could lead to great harm.

Should we try to change this dynamic? Fung certainly thinks so. But I believe that the reforms he proposes might make things worse. The status quo—messy and chaotic though it is—has its virtues.

Let me start by outlining where I agree with Fung. He acknowledges that “democracies need to keep some matters secret for the sake of privacy, candor, or security” and that whistle-blowers may be “fallible judges of when authorities have gone too far.” At the same time, he recognizes that “we will always need whistle-blowers” because officials and politicians may abuse the discretionary powers entrusted to them, making disobedience the final safeguard. The central challenge, then, as Fung rightly points out, is to “sustain democratic institutions that produce the appropriate measure of whistle-blowing” (emphasis added).

How can this be done? Fung offers two pieces of advice. First, he draws attention to the Fourth Estate’s potential as a good-faith intermediary. He writes:

Media organizations such as the New York Times and the Washington Post operate as information intermediaries and helpful filters when they review secret material and consult with the U.S. government in order to publish that which informs democratic debate but refrain from publishing stories that harm our democracy.

The problem, Fung argues, is that the Fourth Estate’s ability to play this role has been diminished because American media organizations lack credibility in the eyes of would-be whistle-blowers, who see them as too sympathetic to the government. Snowden, he contends, may have “thought that Guardian reporters would be more willing to be critical of the U.S. government than American newspapers.” At the same time, Fung criticizes the Justice Department for investigating reporters and publications that have published secret information, arguing that this amounts to a kind of intimidation that “diminishes the democratic capacity of news media to check potentially abusive government action.” (Note that these claims seem paradoxical: if the press is overly sympathetic to the American state, then why is it being investigated?)

Second, Fung recommends that the American government eschew the use of strong-arm tactics against whistle-blowers—for instance, the use of solitary confinement in the case of Bradley Manning. As he puts it, “democratic institutions should be organized so that whistle-blowers can expect justice from their society, not vengeance from its government.” Failing this, there is the possibility, he warns, that whistle-blowers will increasingly choose to evade the law in the manner that Snowden has done.

Fung’s proposals are not entirely persuasive, though. We know from Howard Kurtz that Snowden chose the Guardian over the Washington Post and the New York Times precisely because he disapproved of these newspapers trying to play the role of intermediary. When the Post refused to publish all the classified information Snowden wanted to disclose—because the editors wanted to approach the NSA to first understand the harm that might be caused by the disclosure of this information—Snowden went with the Guardian. So much then for whistle-blowers permitting the Fourth Estate to act as good faith intermediaries.

Furthermore, why assume that journalists will be good-faith intermediaries? Journalists have interests of their own—papers to sell, careers to make, and axes to grind. Since their interactions with their sources are hidden from public sight, how to tell whether they are acting as honorable intermediaries (and not like scoop-hungry fiends)? Recent events such as the maligning of Wen Ho Lee and Steven Hatfill, manipulative reporting on Iraqi weapons of mass destruction, the outing of CIA operations officer Valerie Plame, and the needless exposure of the Treasury’s anti-terrorism program for secretly collecting financial data worldwide, suggest that we should resist depictions of reporters and their sources as “patriots” who always have the public interest at heart.

Once we recognize that whistle-blowers and journalists may fail to carefully balance the public’s interest in secrecy and transparency, we start to see that the Justice Department’s investigations and prosecutions actually serve a useful purpose. These measures have a moderating effect in so far as they incentivize officials and journalists to disclose secret information only when they have reason to believe that it reveals wrongdoing so serious that disclosure is worth the risk of being investigated and punished. If we take these measures off the table, we increase the probability that instead of making unauthorized disclosures only when this reveals grave wrongdoing, officials and journalists will make disclosures in order to defeat a policy they dislike for personal rather than shared reasons.

Fung’s advice, then, is problematic. Because he assumes good behavior on the part of whistle-blowers and journalists, and because he disables the countervailing power that can help keep these actors from going overboard, his advice is likely to make it harder for American democracy to strike a reasonable balance between secrecy and transparency. Arguably, the cat-and-mouse game we see unfolding in Moscow constitutes the more effective way of balancing two crucial interests: our interest in an effective and energetic government, on the one hand, and our interest in preventing the concealment of wrongdoing, on the other. This manner of proceeding is in keeping with James Madison’s observation that moderation and good sense are oftener found by opposing self-interested forces than by relying on individuals to do the right thing.

This “unruly contest” is painful to watch, I admit. In order to deter a growing flood of unauthorized disclosures, many of them rash or malicious, the government has begun to utilize ever more punitive measures (in part at least because it is reluctant to take recalcitrant officials to court, because it wants to avoid having to share classified information with defendants and jurors). The Justice Department could ease fears by making credible promises that it will not pursue whistle-blowers that reveal truly egregious wrongdoing. But such a step would have little bearing on the present case. In this instance the blame lies not with the institutions of American democracy, but with the individual involved.

A public employee who swears to obey laws governing the use of secret information is obliged to keep his word—unless he discovers that elected officials are acting unlawfully or immorally. Snowden claims to have exposed immoral activity. This assertion is questionable, since all three branches have cooperated on the PRISM program, and a significant proportion of the public supports intrusive surveillance. But even assuming Snowden’s charge is defensible, he ought to have proceeded in precisely the way Fung recommends—by working with intermediaries such as Inspectors General, members of Congress, or even national security reporters—so as to minimize collateral damage to national security. Not only did Snowden ignore these intermediaries, he has since exposed additional programs—such as surveillance operations against foreign embassies and countries—that are far from unusual. This rashness has not only pushed the state to show that such brazenness cannot go unpunished, and it has also cost Snowden public support that might have otherwise shielded him from the full wrath of the state.

It is the failure to recognize that with great power comes great responsibility—this is what is “broken” in American democracy.

 

Photo: Human Rights Watch

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