Are intelligence-community leakers internationally protected whistleblowers or simply 'whistling in the dark'? Assessing the protections afforded to intelligence-community whistleblowers under international law.

• Author: Connon, Eric

ABSTRACT

On June 9, 2013, the public discovered the source of the earthshattering stories revealing the full extent of the United States intelligence-gathering apparatus. Edward Snowden allowed the publication of his name and background at his own request because, as he claimed, "I know I have done nothing wrong." This was the first public stage of the odyssey of Edward Snowden, whose quest for asylum or refugee status carried him from Hong Kong to a Moscow airport where, after failing to obtain secure passage to Latin American destinations, he was eventually granted asylum in Russia. Snowden found himself in a relative legal limbo, unable to gain asylum from most countries or safely access those countries that considered offering it. This Note analyzes the protection afforded under current international asylum and refugee law to intelligence community employees who leak information exposing perceived government misconduct. It also examines and considers the merits of possible means for improvement. While intelligence community whistleblowers may qualify as refugees or asylees based upon the political nature of their actions, the legal framework does not adequately address the situation in a consistent fashion. Alterations can and should be made to international refugee and asylum law, which would better protect good-faith intelligence community whistleblowers who expose government misconduct.

CONTENTS INTRODUCTION: AN INTELLIGENCE COMMUNITY LEAKER'S SEARCH FOR ASYLUM I. DEFINING "WHISTLEBLOWER" AT THE INTERNATIONAL LEVEL A. The Disclosure of Wrongdoings Connected to the Workplace B. A Public Interest Dimension, Such as "the Reporting of Criminal Offences, Unethical Practices, Rather Than a Personal Grievance" C. Reporting of Wrongdoings through Designated Channels or Designated Persons II. INTELLIGENCE-COMMUNITY WHISTLEBLOWERS UNDER EXISTING INTERNATIONAL LAW A. Intelligence-Community Whistleblowers under Asylum Law B. Intelligence Community Whistleblowers under the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol 1. Meaning and Application of Well-Founded Fear 2. Does an Intelligence Community Whistleblower Fear "Persecution" Owing to One of the Enumerated Factors Listed in the Definition? C. Is Intelligence-Community Whistleblowing a Political Act? III. MEASURES TO IMPROVE PROTECTION OF INTELLIGENCE-COMMUNITY WHISTLEBLOWERS A. Alterations to Domestic Law Whistleblower Protections B. Alterations to International Law Whistleblower Protections CONCLUSION: THE VALUE OF WHISTLEBLOWERS IN THE INTELLIGENCE COMMUNITY INTRODUCTION: AN INTELLIGENCE COMMUNITY LEAKER'S SEARCH FOR ASYLUM

In June 2013, The Guardian published a series of groundbreaking articles revealing the unfettered access of the U.S. government to internet and phone records, either directly or through FISA (1) court-ordered acquisition of records held by private corporations. (2) The source of these revelations was an unknown government contractor, Edward Snowden, who supplied this information to journalists from a hotel room in Hong Kong. As evidence, Snowden had four laptops in his possession containing, by one estimation, more than 1.5 million classified documents (3) he accessed while employed by the National Security Agency ("NSA") in Hawaii. (4) The release of Snowden's identity was not a mistake or the result of an investigation, but rather the intentional act of a man who considered himself to be, as conveyed by his journalist-contact Glenn Greenwald, a whistleblower. (5) Snowden asserted, "I have no intention of hiding who I am because I know I have done nothing wrong." (6) The Obama Administration, however, did not consider Snowden's public disclosures to constitute legitimate whistleblowing. (7) On June 14, 2013, the U.S. government issued a complaint against Snowden (8) for theft of government property (9) and espionage. (10) Congress also sent an official request to Hong Kong for his extradition. (11) Rather than return to the United States and face criminal sanction, Snowden instead cast about the international community for a safe haven. (12)

Though Snowden's subsequent transnational trek consisted only of a trip from Hong Kong to Moscow, it was accompanied by uncertainty, widespread media speculation, and heightened diplomatic stakes. (13) Snowden checked out of his Hong Kong hotel room on June 14th and disappeared until June 23rd, when he boarded a flight to Moscow. (14)

Snowden faced substantial hurdles in his efforts to resist extradition and secure safe passage to a country willing to grant asylum. He had intended for Moscow to be a temporary layover to allow for a connecting flight to Cuba, but the U.S. government derailed that plan by cancelling Snowden's passport, preventing further international travel. (15) He found himself stranded in Sheremetyevo Airport, applying for asylum status in more than twenty countries, including China, Austria, Finland, India, Spain, and Switzerland. (16) Bolivia, Ecuador, Nicaragua, and Venezuela offered him permanent asylum, but Snowden chose to apply for temporary asylum in Russia because of concerns that he could not access a safe, direct route to one of those four countries from Moscow. (17) Russia declined to extradite Snowden to the United States and, instead, granted him a one-year temporary asylum, (18) which Russia extended for three more years in the summer of 2014. (19)

Edward Snowden's case illustrates the challenging predicament for intelligence-community employees (20) who leak information exposing perceived government misconduct. Though many government employees or contractors may wish to challenge what they perceive as unethical, illegal, or corrupt practices within the workplace, many do not have the legal and institutional protections needed to come forward safely. (21) Depending on the nature of the information disclosed, attempts to bring complaints and revelations to the press can result in criminal charges. (22) Snowden's case is noteworthy because, unlike other intelligencecommunity leakers, (23) he evaded domestic law enforcement and entered the international legal realm.

Snowden's travails reveal much about the current protections afforded to intelligence-community leakers under domestic and international law. Should Edward Snowden and other leakers be classified as whistleblowers, deserving of protection under domestic whistleblower laws? If not, do they instead qualify for the extraterritorial protections afforded to refugees or asylees under international law? If the leakers do constitute whistleblowers, but are denied safe harbor under both domestic and international law, what can or should be done to better address and protect those employees and contractors exposing government misconduct?

This Note will explore the actions of intelligence-community leakers and the available safeguards afforded under domestic and international law. If, as is frequently the case, intelligence-community leakers are not properly shielded by domestic whistleblower legislation, it is also unlikely that they would qualify for protection as refugees or asylecs under international law. Because of the gaps in protection afforded to intelligence-community employees, modifications to existing whistleblower legal frameworks are needed at both the domestic and international levels to both encourage reporting of government wrongdoing and to limit the frequency and extent of large-scale public disclosures.

Part I will consider whether intelligence-community leakers constitute whistleblowers. Despite regional and national variances, a functional international definition for "whistleblower" can be gleaned from the major analyses comparing best practices for whistleblower legislation generally and the intelligence community more specifically. This definition can then serve to assess the whistleblower status of several high-profile intelligence-community leakers.

Part II will consider the position of intelligence-community leakers under the two separate frameworks of refugee and asylum law. If unable to qualify for whistleblower protection under domestic law, would intelligence-community leakers nevertheless qualify as refugees sufficient to trigger the protections of the 1951 Convention Relating to the Status of Refugees (24) and the 1967 Protocol Relating to the Status of Refugees? (25) If not, do intelligence-community leakers have a sufficient legal basis to resist extradition through the political offense exception within extradition treaties, a staple of asylum law generally? (26) The answers to these questions serve to assess whether intelligence-community leakers qualify for protection under existing international law.

Part III explores possible alterations to intelligence-community whistleblower protection. The suggested changes can be grouped into two layers of protection: front-end (domestic) and back-end (international) protections. (27)

In terms of front-end protections, there are several modifications to domestic whistleblower legal frameworks that would encourage intelligence-community whistleblowing while limiting the frequency and extent of large-scale public disclosures. First, states should establish a governmental body with greater independence from the executive branch to handle whistleblower complaints. Potential intelligence-community whistleblowers should also be provided with streamlined access to intelligence oversight bodies, in which any communications are kept confidential from the whistleblower's superiors. Lastly, public disclosure should be retained as an option for intelligence-community whistleblowers if the internal mechanisms for disclosure have been exhausted, but with a high threshold necessary to qualify. Such a threshold would allow for public disclosure in the event of institutional failure to address misconduct or illegality, but would protect necessary government secrets through strict requirements that whistleblowers...