Stephen I. Vladeck (American University Washington College of Law) has posted The Espionage Act and National Security Whistleblowing after Garcetti (American University Law Review, Vol. 57, p. 1531, 2008) on SSRN. Here is the abstract:
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.