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Mark S. Zaids June 11 Outlook essay, Reality Winner is not a whistleblower, accurately described statutory rights for intelligence contractors such as Ms. Winner who blow the whistle publicly with classified information: They have none. But a fatal flaw undermines warnings that whistleblowers rejecting official channels proceed at their own risk under the Espionage Act; they proceed at their own risk when they follow the rules. All whistleblowers are defenseless against criminal liability. Unlike more than a dozen nations, even including Zambia, the United States has no public-interest defense against prosecution.
Of course whistleblowers should operate lawfully. Unfortunately, that is a one-way street. In December 2012, the House stripped rights providing jury trials for those working within the system, creating a gap between duties and rights. Tom Drake and other National Security Agency whistleblowers exposed blanket domestic surveillance in 2002 without classified media leaks. The Pentagon Office of Inspector General referred themto the FBI as possible leakers. Unsuccessful prosecutors sought 35 years incarceration. Edward Snowden said this helped him decide not to trust official channels.
Duties without rights encourage illegal leaks. More prosecutions will spark more sophisticated leaking, not silence. Until there are legal rights for doing it right, we have not seen anything yet.