A Public Accountability Defense for National Security Leakers and Whistleblowers
![handle is hein.journals/harlpolrv8 and id is 289 raw text is: A Public Accountability Defense for National
Security Leakers and Whistleblowers
Yochai Benkler*
In June 2013 Glenn Greenwald, Laura Poitras, and Barton Gellman be-
gan to publish stories in The Guardian and The Washington Post based on
arguably the most significant national security leak in American history.'
By leaking a large cache of classified documents to these reporters, Edward
Snowden launched the most extensive public reassessment of surveillance
practices by the American security establishment since the mid-1970s.2
Within six months, nineteen bills had been introduced in Congress to sub-
stantially reform the National Security Agency's (NSA) bulk collection
program and its oversight process;' a federal judge had held that one of the
major disclosed programs violated the Fourth Amendment;4 a special Presi-
dent's Review Group (PRG), appointed by the President, had issued a
report that called for extensive reforms of NSA bulk collection and abandon-
ment of some of the disclosed practices;' and the Privacy and Civil Liberties
Oversight Board (PCLOB) found that one of the disclosed programs sig-
nificantly implicated constitutional rights and was likely unconstitutional.6
The public debate and calls for reform across all three branches of govern-
ment overwhelmingly support the proposition that the leaks exposed lax
democratic accountability of the national security establishment as well as
* Jack N. and Lillian R. Berkman Professor of Entrepreneurial Legal Studies, Harvard Law
School, Faculty Co-Director, Berkman Center for Internet and Society, Harvard University.
My thanks to Bruce Ackerman, Jack Balkin, Gabriella Blum, Jack Goldsmith, Aziz Huq, Orin
Kerr, and Bruce Schneier for productive comments, and to Claire Johnson, Francesca Procac-
cini, and Michelle Sohn for excellent research.
'See Barton Gellman & Laura Poitras, U.S. Mines Internet Firms' Data, Documents
Show, WAsH. PosT, June 6, 2013, at Al; Glenn Greenwald, US Orders Phone Firm to Hand
Over Data on Millions of Calls: Top Secret Court Ruling Demands 'Ongoing, Daily' Data
From Verizon, THE GUARDIAN (London), June 6, 2013, at 1.
2 For a review of the offending practices and major reforms, see Continued Oversight of
the Foreign Intelligence Surveillance Act: Hearing Before the S. Comm. on the Judiciary,
112th Cong. (2013) (statement of Laura K. Donohue, Acting Director, Georgetown Center on
National Security and the Law).
Michelle Richardson & Robyn Greene, NSA Legislation Since the Leaks Began, AMERI-
CAN CIVIL LIBERTIES UNION BLOG (Aug. 15, 2013, 10:48 AM), https://www.aclu.org/blog/
national-security/nsa-legislation-leaks-began.
4 Klayman v. Obama, 957 F. Supp. 2d I (D.D.C. 2013).
'See RICHARD A. CLARKE ET AL., LIBERTY AND SECURITY IN A CHANGING WORLD (2013),
available at http://www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg-final-report.
pdf [hereinafter PRG REPORT].
6 PRIVACY & CIVIL LIBERTIES OVERSIGHT BD., REPORT ON THE TELEPHONE RECORDS PRO-
GRAM CONDUCTED UNDER SECTION 215 OF THE USA PATRIOT ACT AND ON THE OPERATIONS
OF THE FOREIGN INTELLIGENCE SURVEILLANCE COURT 103-37 (2014), available at http://www.
pclob.gov/meetings-and-events/2014meetingsevents/23-january-2014-public-meeting [herein-
after PCLOB REPORT] (although the PCLOB also found that the government lawyers were
entitled to rely on precedent for the opposite proposition as long as the Supreme Court did not
directly hold on the matter).](ViewImageLocal?handle=hein.journals/harlpolrv8&div=16&collection=&method=preview&ext=.png&size=3)
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A Public Accountability Defense for National Security Leakers and Whistleblowers
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