Representative Justin Amash’s assertion yesterday that Edward Snowden is a whistleblower because “he told us what we needed to know” deserves more scrutiny than it’s gotten, because the implications are quite ominous.
Society has a compelling interest in protecting whistleblowers because we don’t want wrongdoers to escape justice by covering up their unlawful activities. The difference between a whistleblower and a leaker of classified information (or any other proprietary information) is that a whistleblower gets legal protection because what he is bringing to light is even more unlawful than his disclosure of it.
Here, nothing unlawful has occurred. A lawsuit charging that the NSA’s phone-records collection violates the Fourth Amendment doesn’t have a prayer. (Professor Richard Epstein and I wrote about the underlying issues over at The Weekly Standard). The most Amash can say is that he was in the dark about the true scope of the NSA surveillance – not because anyone was covering up any wrongdoing – but because he hasn’t been around in Congress long enough to know, didn’t avail himself of many opportunities to learn more, and doesn’t trust his fellow members on the Intelligence Committee who have been regularly briefed on all this for years.
So what Representative Amash is basically saying is that whistleblower protection should be extended to leakers of classified information if they help him overcome his youth and inexperience, or otherwise help him get around the laws that give intelligence committees in Congress regular classified briefings.
The worst aspect of the libertarian reaction to the Snowden leak is that members of Congress are legitimizing the revelation of national-security secrets merely because they disagree with the law and how it’s been interpreted. Not only does that extend “whistleblower” protection to people who have revealed no wrongdoing, and are doing nothing other than breaking the law and putting Americans at risk, but it constitutes a degradation in the rule of law itself. The necessary implication is that our system of laws can’t be trusted and our rights must be safeguarded by extra-legal means.
And what a very dangerous idea that is.