Should We Rely on Whistleblowers?

2016 ◽  
Author(s):  
Rahul Sagar
Keyword(s):  
National Security ◽  
Public Interest ◽  
Good Faith ◽  
Executive Power ◽  
The Public

This chapter examines the circumstances under which an official will be justified in violating laws that prohibit unauthorized disclosures of classified information. It explains why we cannot rely on the practice of whistleblowing to counter the misuse of state secrecy. It argues that an official may “blow the whistle” if he/she encounters classified information that clearly reveals wrongdoing posing an immediate and serious threat to the public interest, and if he/she makes a good faith effort to minimize the harm that the publication of this information may cause national security. It also asserts that the official must identify himself/herself so that we can assess whether his/her view of what constitutes a wrongful exercise of executive power is a disinterested one. Finally, it shows that would-be whistleblowers have little incentive to disclose their identity, because doing so makes them vulnerable to retaliation from their managers and colleagues.

Nixon and the resurgence of executive privilege

2019 ◽  
pp. 140-178
Author(s):  
Kevin M. Baron
Keyword(s):  
National Security ◽  
Public Interest ◽  
Executive Power ◽  
White House ◽  
The Public ◽  
The Law ◽  
Security Concerns

With the passage and implementation of FOIA under Johnson, the CLDC moves into the next iteration by examining the implementation, oversight, and amendment phase. This was driven in large part by Nixon's actions after coming into office. While Nixon talked about transparency, he took steps to expand White House control over information, not just following the precedent of Eisenhower, but in expanding the scope of executive privilege. Nixon asserted that executive privilege covered all White House conversations with any staff, appointees, and employees, expanding beyond the national security concerns in the public interest of his predecessors. Nixon's actions to expand executive power left Congress in the position of again grappling with ways to respond, including eventually amending FOIA to strengthen the law as an oversight measure. The first FOIA amendments began under Nixon but would not be finalized until President Ford was in office.

Eisenhower’s executive privilege and the public interest

2019 ◽  
pp. 54-84
Author(s):  
Kevin M. Baron
Keyword(s):  
Public Interest ◽  
Attorney General ◽  
Executive Branch ◽  
Executive Power ◽  
Freedom Of Information ◽  
Government Information ◽  
Executive Orders ◽  
White House ◽  
The Public ◽  
The Creation

This chapter delves into the depths of one of the most important developments within modern American politics, the creation and institutionalization of executive privilege. In facing a fervent Congress in the grips of McCarthyism, Eisenhower issued a letter denying testimony to the Senate for the Army-McCarthy hearings. His letter included a memo from Attorney General Brownell that claimed the president had an inherent constitutional privilege to deny information to Congress or the public if it was in the public interest and for national security. This action institutionalized the Cold War Paradigm in the executive branch and created an extra-constitutional power for the president. Eisenhower issued several executive orders concerning classification and public dissemination of government information, along with the creation of the Office of Strategic Information (OSI) within the Commerce Department to oversee these policies. Eisenhower claimed historic precedent to justify his inherent constitutional power, regardless, it showed a learned response that changed executive power. Congress would respond in 1955 by creating the Special Subcommittee on Government Information chaired by Rep. John Moss, given jurisdiction for oversight on all executive branch information policies and practices. With the issue of freedom of information institutionalized in Congress, a 12-year legislative power struggle would unfold between Congress and the White House ending with the passage of the Freedom of Information Act in 1966.

scholarly journals The standing of the public interest

2016 ◽  
Vol 2 (49) ◽  
pp. 46 ◽  
Author(s):  
Amitai Etzioni
Keyword(s):  
National Security ◽  
Public Interest ◽  
Common Good ◽  
A Priori ◽  
Individual Rights ◽  
The Public ◽  
The Common Good ◽  
Technological Developments ◽  
The Common ◽  
Liberal Communitarianism

Liberal communitarianism holds that a good society is based on a carefully crafted balance between individual rights and the common good; that both normative elements have the same fundamental standing and neither a priori trumps the other. Societies can lose the good balance either by becoming excessively committed to the common good (e.g. national security) or to individual rights (e.g. privacy). Even societies that have established a careful balance often need to recalibrate it following changes in historical conditions (such as the 2001 attacks on the American homeland) and technological developments (such as the invention of smart cell phones).

Secrets and Leaks

2016 ◽  
Author(s):  
Rahul Sagar
Keyword(s):  
National Security ◽  
Relevant Information ◽  
Executive Power ◽  
The Public ◽  
The Press ◽  
The Law ◽  
Complex Relationships ◽  
Unauthorized Disclosure ◽  
Fear Of Retaliation

This book examines the complex relationships among executive power, national security, and secrecy. State secrecy is vital for national security, but it can also be used to conceal wrongdoing. How then can we ensure that this power is used responsibly? Typically, the onus is put on lawmakers and judges, who are expected to oversee the executive. Yet because these actors lack access to the relevant information and the ability to determine the harm likely to be caused by its disclosure, they often defer to the executive's claims about the need for secrecy. As a result, potential abuses are more often exposed by unauthorized disclosures published in the press. But should such disclosures, which violate the law, be condoned? Drawing on several cases, this book argues that though whistleblowing can be morally justified, the fear of retaliation usually prompts officials to act anonymously—that is, to “leak” information. As a result, it becomes difficult for the public to discern when an unauthorized disclosure is intended to further partisan interests. Because such disclosures are the only credible means of checking the executive, the book claims, they must be tolerated, and, at times, even celebrated. However, the public should treat such disclosures skeptically and subject irresponsible journalism to concerted criticism.

Whistleblowing, National Security and the Constitutional Freedom of Political Communication

2018 ◽  
Vol 46 (3) ◽  
pp. 341-365
Author(s):  
Danielle Ireland-Piper ◽  
Jonathan Crowe
Keyword(s):  
National Security ◽  
Political Communication ◽  
Public Interest ◽  
Government Officials ◽  
The Public ◽  
Responsible Government ◽  
Intelligence Operations ◽  
The One ◽  
Types Of Information ◽  
The Relationship

Whistleblowers promote the values of responsible government and the rule of law by drawing attention to criminal or other forms of wrongdoing in publicly accountable organisations. This article explores the relationship between whistleblowing, national security and the implied freedom of political communication under the Australian Constitution. Legislation such as the Crimes Act 1914 (Cth) (‘ Crimes Act’), the Australian Security Intelligence Organisation Act 1979 (Cth) (‘ ASIO Act’) and the Australian Border Force Act 2015 (Cth) (‘ Border Force Act’) makes it an offence to reveal certain types of information obtained as a Commonwealth officer. The Public Interest Disclosure Act 2013 (Cth) (‘ PIDA’) offers limited protection to whistleblowers in the Commonwealth public sector, but this protection does not extend to information relating to intelligence operations. We argue that blanket criminalisation of unauthorised disclosure by Commonwealth officers or contractors under s 70 of the Crimes Act, along with similar prohibitions in s 35P of the ASIO Act and s 42 of the Border Force Act, offend the implied freedom of political communication by failing to strike an adequate balance between national security and organisational secrecy, on the one hand, and public debate and discussion, on the other. The courts should read down these laws to protect disclosures that hold significant public interest for discussion and debate over government policy or the performance of government officials.

Leaks of Classified Information

2021 ◽  
pp. 57-73
Author(s):  
Michael Morell
Keyword(s):  
National Security ◽  
Public Good ◽  
Good Faith ◽  
Intelligence Community ◽  
The Public ◽  
News Organizations ◽  
The Media ◽  
Potential Damage

This essay assesses the motivation of leakers, the damage from leaks, and the responsibilities of journalists and the Intelligence Community. The essay argues that leaks generally have nothing to do with government wrongdoing, leakers are rarely motivated by a belief that the public needs to know about government wrongdoing, though leakers often claim to be, and the damage to the security and economy of the country from leaks is tremendous. News organizations should take seriously the potential damage from publication of classified information and should weigh the public good against that potential damage to national security. The Intelligence Community should build relationships with the media based on honesty and trust, so they will be seen as acting in good faith when they ask the media not to publish classified information for security reasons. All leakers should be prosecuted, so there can be an assessment of whether those who claim they acted for the public good actually did so.

Journalistic confidentiality in an age of data surveillance

2019 ◽  
Vol 41 (2) ◽  
pp. 225-239 ◽  
Author(s):  
Rebecca Ananian-Welsh
Keyword(s):  
Law Enforcement ◽  
National Security ◽  
Rule Of Law ◽  
Public Interest ◽  
Telecommunications Industry ◽  
Data Retention ◽  
The Rule Of Law ◽  
The Public ◽  
Considerable Controversy ◽  
Data Surveillance

This article examines two key components of the Australian Government’s data surveillance framework and critiques their impact on journalistic confidentiality. The 2015 mandatory data retention scheme and the 2018 telecommunications industry assistance scheme have been the subjects of considerable controversy and ongoing parliamentary reviews. The combined effect of these provisions is that journalists are unable to confidently fulfil their ethical obligation to maintain source confidentiality. The article recommends targeted reforms to more explicitly and appropriately balance the public interest in journalistic confidentiality (and relatedly, democracy, public accountability and the rule of law) against law enforcement and national security objectives.

Crafting a New Compact in the Public Interest

2021 ◽  
pp. 39-56
Author(s):  
Keith B. Alexander ◽  
Jamil N. Jaffer
Keyword(s):  
Civil Rights ◽  
National Security ◽  
Public Interest ◽  
Media Environment ◽  
The Public ◽  
Fair Treatment ◽  
The Press ◽  
The Media ◽  
The Government ◽  
The Relationship

Leaks of highly classified information, popular views of government national security efforts, and changes in the media environment in recent years have resulted in a significant decay in the relationship between the government and the media and public trust in both institutions. To correct this harmful trend, a significant recalibration of the government-media relationship and the establishment of a new compact between them would best serve the public interest. The government should be more transparent about its national security efforts and more self-critical in classification decisions and should explain national security activities it undertakes, defending and justifying classified programs in detail whenever possible. The press must likewise be willing to afford the government fair treatment, including noting government efforts to protect national security, and to appropriately balance civil rights and privacy. It is important that these institutions work together to establish new mores on classification, government transparency, and a more responsible approach to classified disclosures.

scholarly journals TAX LAW SECURITY FUNCTION: ESSENCE AND FORMS OF IMPLEMENTATION

2020 ◽  
pp. 439-446
Author(s):  
Д. А. Кобильнік
Keyword(s):  
Public Interest ◽  
Good Faith ◽  
Tax Law ◽  
Legal Basis ◽  
Public Authorities ◽  
Protective Function ◽  
The Public ◽  
Tax Legislation ◽  
Legal Coercion ◽  
Legitimate Interests

The article stipulates that tax and legal coercion: a) takes place exclusively on a legal basis measures of tax and legal coercion and the procedure for their implementation, the competence of authorized entities, the concept and composition of tax offenses are enshrined in the tax legislation of Ukraine; b) it is operated by specially authorized state bodies, as a rule, bodies of the state fiscal service (in some cases tax and legal coercion may be applied by the court); c) applies only to specific subjects of law taxpayers and fees in connection with their participation in tax relations; d) the purpose of its application is the protection and defense of the public interest in tax relations. Tax-legal coercion is a type of state-legal coercion, legally regulated influence of specially authorized public authorities on the behavior of taxpayers in case of non-compliance with the latter requirements of tax law in order to protect and defend the public interest in tax relations. It is concluded that the direction of legal influence determines the essence of the protective function of tax law. Through the implementation of the protective function is: ensuring compliance with the model of behavior of the subjects of tax relations, which is established by the rules of tax law; stimulating the subjects of tax law to comply with its rules; ensuring the fulfillment of assigned duties; guaranteeing the possibility of restoring the violated rights and legitimate interests of the authorities and obligated parties. This actually ensures a combination of factual and legal content of tax relations, guarantees the good faith performance of obligations under the rules of tax law. Through the implementation of the protective function of tax law, its characteristics such as universality, guarantee, security and coercion are revealed. the protective function of tax law is realized through the application to the taxpayer of measures of tax coercion and measures of tax control.

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