By the standards of other countries, the U.S. approach to official secrecy is ferocious.
For leaking hugely important information to the press, ex-intelligence contractor Edward Snowden and Bradley Manning, the U.S. soldier being tried by a military court in Maryland, face charges of espionage. It’s as if they’d sold nuclear secrets to the enemy. They could go to prison for life.
Elsewhere, punishment for making official secrets public is less severe than the penalties here for driving drunk: at worst, two years in Britain and Denmark. In other Western countries, maximum punishments range from four years in Sweden and Spain, to five in Germany, Belgium and Poland, and seven in France.
That’s according to an analysis of 20 European countries by Sandra Coliver, a legal expert with the Open Society Justice Initiative, and other researchers Her group has been leading a multiyear, international effort to formulate broad principles reconciling the legitimate need to keep government secrets with the no less legitimate need to hold governments publicly accountable.
Not only are penalties mild elsewhere, Coliver found, prosecutions are rare. In six countries, nobody in the past decade has been convicted for disclosing state secrets. In Britain, since the 1989 Official Secrets Act took effect, only 10 public employees have been prosecuted. The longest sentence was imposed on a naval petty officer who sold intelligence to a newspaper about a possible Iraqi anthrax attack. He got a year.
In fact, apart from the United States, the only country where prosecutions are common is Russia. There, 10 government employees have been imprisoned in the past decade for from four to 15 years for disclosing government information publicly.
Europe’s courts seem to be moving toward backing whistleblowers strongly, even when state security is breached.
In a 1996 case, a military intelligence official in Romania was initially sentenced to two years for releasing the tapes of illicit wiretaps his agency had made of some journalists and politicians.
But the European Court of Human Rights ruled that he was wrongly convicted, that he was acting in good faith in exposing illegalities to the public, and that the public’s interest in learning about the wrongdoing outweighed the agency’s interest in keeping its good name.
That approach is broadly consistent with the international effort led by the Open Society group that has produced a new set of legal and policy recommendations. They are grandly titled “Global Principles on National Security and the Right to Information” and informally known as the Tshwane Principles, for the South African district where they were finalized.
Tshwane is the work of 22 international organizations and academic institutions that, through 14 meetings in various venues throughout the world, have wrestled with how to balance the public’s right to significant information against governmental needs for secrecy.
Tshwane has gotten relatively little attention in the United States, which is too bad, even while it’s picking up support from the Council of Europe.
The Europeans seem to like the idea that governments should be made to explain their secrecy policies — and when those policies are defied, demonstrate that the harm done by security breaches actually justifies reprisal.
Among Tshwane’s cornerstone principles:
• The public has a right to government information, and the burden is on governments to show why and when that right must be restricted.
• Certain types of information are of such compelling public interest that they should be disclosed except in “the most exceptional circumstances.” Included are rules authorizing arrest, surveillance, and serious human rights violations.
• People who expose wrongdoing “should not face retaliation if the public interest in the information disclosed outweighs the public interest in secrecy.”
• Whistleblowers should first try to address problems through official channels, if possible. And they should not disclose any more information than is necessary to bring attention to the wrongdoing — which, Coliver suggests, is a standard that was exceeded by Manning’s alleged release of 700,000 military and diplomatic documents.
• Most remarkably, though, even if a whistleblower violates those guidelines, Tshwane asserts that any penalty should be proportionate to the actual harm done.
“Government authorities, in order to justify any punishment, should undertake an investigation, and should explain publicly, in as complete detail as possible, the actual and specific harm caused,” Coliver writes
That, to me, is the most galling element of the current U.S. secrecy panic and the frenzied counterattack against the people behind the disclosures. For all the gnashing of teeth over the Manning leaks, for all the fevered denunciations of Snowden’s exposing domestic surveillance, nobody has pointed to actual harm — to national security, to counterterrorism, to intelligence agents, to diplomatic initiatives, to the confidentiality of top-level parleys.
That leaves open the possibility that these whistleblowers, far from being traitors and enemies, are our benefactors.