Don't fear the leaker: Column

Glenn Harlan Reynolds | USATODAY

Ever since whistleblower Edward Snowden leaked information about the National Security Agency's widespread -- possibly illegal, even criminal -- program of data collection and spying, we've heard a lot about possibly the least important question raised by the event: Whether Snowden is a good person or not.

My own take is that nobody knows. In fact, Snowden himself may not know the full context or ramifications of his actions. But it also doesn't matter.

What does matter is that the Snowden affair occurs in the context of an unprecedented administration war on whistleblowers. And that's a bad idea because whistleblowing is one of the things that maintains the legitimacy of a government as big, and otherwise unaccountable, as ours.

As recently reported by the McClatchy Newspapers, the Obama administration views whistleblowing and leaks as a species of terrorism. According to McClatchy: "President Obama's unprecedented initiative, known as the Insider Threat Program, is sweeping in its reach. It has received scant public attention even though it extends beyond the U.S. national security bureaucracies to most federal departments and agencies nationwide, including the Peace Corps, the Social Security Administration and the Education and Agriculture departments. It emphasizes leaks of classified material, but catchall definitions of 'insider threat' give agencies latitude to pursue and penalize a range of other conduct. ... Leaks to the media are equated with espionage."

The Peace Corps? The Department of Agriculture? Really? There's irony in this, given President Obama's famous 2009 pledge to make transparency a "touchstone" in his administration. "For a long time," he said, "there's been too much secrecy in this city." His views on this subject seem to have evolved. Now, like many officeholders, he wants to control information to avoid embarrassment.

But that's a mistake. Because while leaks can bring embarrassment, leaks -- or at least their possibility -- also bring legitimacy.

The federal government is so huge that no one can really oversee it. (This was, remember, an excuse offered by Obama's defenders in the IRS scandals.) It's certainly too big for congressional oversight to do the job, as is evidenced by the numerous unfolding scandals ranging from the NSA to Benghazi to the IRS, all of which seem to have caught Congress by surprise.

So who's left? The people actually involved. A government as big as ours can't do much of anything without hundreds or thousands of people knowing. Since the president and Congress can't keep track of it all, it falls to the people on the job to expose wrongdoing. "If you see something, say something," as Homeland Security Secretary Janet Napolitano is fond of observing.

The freer people are to blow the whistle on wrongdoing, the more we can assume that when no whistle is blown, things aren't so bad. The more the government cracks down on whistleblowers, the more likely it is that they've got something to hide.

This system isn't perfect. Leakers can abuse their power for reasons of revenge, ego, or politics -- but then, so can congressional overseers, or attorneys general, or presidents. And the strong Democratic tilt to the career civil service means that Democratic presidents probably get less leaking than Republicans (and, when leaks happen, less coverage from the Democratic-leaning press).

But nonetheless, the likelihood that if the federal government does something truly wrong, someone might blow the whistle serves as a major source of discipline. Given that -- by the president's defenders' own admission -- there's not much other discipline available, that seems pretty important.

Glenn Harlan Reynolds is professor of law at the University of Tennessee. He blogs at InstaPundit.com.

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