Snowden Case Should Fully Consider Public Interest in Disclosures
June 18, 2013

The uproar following Snowden’s revelations shows the importance of exposing the scope and conduct of the US surveillance program to public view, and that should temper any government response, whatever else Snowden may yet disclose. The US urgently needs a better system for protecting people who use classified information to spotlight what could reasonably be seen as serious government misconduct.

Kenneth Roth, executive director

(Washington, DC) – The United States should protect people who use classified or other sensitive government information to expose what appear to be serious human rights violations and other government wrongdoing, Human Rights Watch said in a statement released today.

Edward Snowden, a former National Security Agency (NSA) contractor who recently drew global attention to US mass surveillance programs, could be subject to extradition if charged by the US. Although the entirety of Snowden’s disclosures and their implications are still unknown, his revelations about NSA mass surveillance reveal overreach that is clearly of high national and international public interest, Human Rights Watch said.

“The uproar following Snowden’s revelations shows the importance of exposing the scope and conduct of the US surveillance program to public view, and that should temper any government response, whatever else Snowden may yet disclose,” said Kenneth Roth, executive director of Human Rights Watch. “The US urgently needs a better system for protecting people who use classified information to spotlight what could reasonably be seen as serious government misconduct.”

The US government should also refrain from using the US Espionage Act, with its heavy penalties, to punish those who disclose classified information to the media for the purpose of exposing government wrongdoing and unethical policies, Human Rights Watch said. To contend that publishing classified information on the Internet proves an intent to “aid the enemy” simply because the “enemy” might read publicly available news, as the government has done in the prosecution of the US soldier Bradley Manning, subverts freedom of speech and the public’s right to information that can be essential to protect human rights and democratic accountability.

US authorities should exercise discretion when considering prosecuting such leaks under US laws governing classified information, Human Rights Watch said. They should not bring charges against whistleblowers who expose government wrongdoing unless they can make a compelling case that the harm to national security caused by the disclosure is so significant that it overrides the public’s right to know, and are prepared to make that case publicly, providing as much detail as possible on the actual harm.

The US Congress has failed to provide effective protection and meaningful recourse to national security whistleblowers, Human Rights Watch said. Existing laws and practices give would-be whistleblowers few internal ways to disclose governmental misconduct, no recourse when existing options are inaccessible or unresponsive, and no meaningful right to challenge official retaliation and defend themselves from criminal and civil liability. Congress also has failed to insist that security agencies should disclose enough information to enable effective democratic oversight or that the government should curtail the overwhelming growth of classified information.

If Snowden had been able to raise the issue of NSA mass surveillance effectively without facing the prospect of espionage charges, or to have brought it to Congress for real action without fear of retaliation, he might not have felt the need to flee to Hong Kong in the first place, Human Rights Watch said.

The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, an influential set of principles issued in 1996 by experts in international law on the applicability of human rights protections to national security information, provide: “No person may be punished on national security grounds for disclosure of information if… the public interest in knowing the information outweighs the harm from disclosure.”

“The United States has been a world leader in connecting people by phone and Internet, but it jeopardizes that status if it will not allow meaningful public debate about the extraordinary scope of NSA surveillance,” Roth said. “Giving greater protection to national security whistleblowers is an essential step in that process."