The Espionage Act and National Security Whistleblowing after Garcetti
Stephen I. Vladeck
University of Texas School of Law
December 12, 2008
American University Law Review, Vol. 57, p. 1531, 2008
American University, WCL Research Paper No. 2008-84
Should government employees ever have a right to disseminate classified national security information to the public? As a general matter, of course, the answer is "no." It is necessarily tautological that the central purpose of classifying information is to keep that information secret. But what if the information pertains to what we might describe as "unlawful secrets," and the individual in question has exhausted all possible non-public remedies - and to no avail? Are there any circumstances in which the law enables the government employee to come forward? Should there be?
As this Essay suggests, because of the broad language of the Espionage Act and the narrow language of certain whistleblower laws, a government employee would enjoy no statutory whistleblower protection whatsoever from either an adverse employment action or a criminal prosecution for disclosing classified national security information. And because of the Supreme Court's pronounced constriction of the First Amendment rights of public employees two years ago in Garcetti v. Ceballos, in which the Court effectively abandoned the idea of "Pickering balancing" for speech performed by a public employee as part of his professional duties, the employee would not be entitled to a constitutional defense, either.
Reasonable minds can certainly disagree about whether there should ever be circumstances where federal law entitles a government employee in possession of classified information about illegal governmental activity to publicly disclose that information, even as a last resort. The purpose of this Essay is not to offer an argument for or against such a right; rather, my goal is to suggest that federal law today includes absolutely zero protection for employees in such a position, and that, perhaps unintentionally, Garcetti is the reason why.
Number of Pages in PDF File: 17
Keywords: Garcetti, Espionage Act, whistleblowing, leaks, national security, Pickering
Date posted: December 15, 2008