Edward Snowden And The Public Interest Defense: Part 3 – Limiting the Role of The “Public” In The Public Interest Defense

By Mark Esposito, Guest Blogger

This is the third of a multi-part article on the Public Interest Defense and its application to the the Edward Snowden situation. The defense is not recognized in America but other nations have considered this legal mechanism to provide an appropriate way to deflect criminal charges from whistleblowers like Snowden. Part 1 can be found here and  Part 2 can be found here.

snowdenWe found in parts 1 & 2 that the absolute right to a public plebiscite on punishment for political crimes goes back centuries to at least the time of Publius Horatius. We also saw that rulers have used this right to manipulate outcomes to further their own interests in deflecting blame or attacking political opponents. In modern times, the jury has replaced the assembled citizenry but the motivation of rulers to limit or channel the ancient right to their own ends remains. Even in America where the defense doesn’t technically exist but where its cousin, whistleblower protections, do, the urge to rein in messengers of truth remains.

The Public Interest Defense Abroad

Imagine the most influential prosecutor in modern America uttering the following words about the public’s right to understand the secret inner workings of  its government:

“Freedom of expression constitutes one of the essential foundations of a democratic society …it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also as to those that offend, shock or disturb. Freedom of expression … is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions convincingly established.

“These principles are of particular importance as far as the press is concerned. Whilst it must not overstep the bounds set, inter alia, in the “interests of national security” or for “maintaining the authority of the judiciary”, it is nevertheless incumbent on it to impart information and ideas on matters of public interest. Not only does the press have the task of imparting such information and ideas: the public has a right to receive them. Were it otherwise, the press would be unable to play its vital role of public watchdog.”

These are part of  the guidelines (here) set down for all prosecutors in the United Kingdom. They have been expressly emphasized against the backdrop of NSA contractor Edward Snowden’s disclosure of confidential documents to journalist Glenn Greenwald exposing the operational details of America’s super-secret electronic global spying program.  The disclosures have been particularly damaging to Britain since they disclose a pattern of joint cooperation between the English-speaking peoples (the Five Eyes partners –read about them here in this Canadian document) to bug key allies in the so-called War on Terror.

But unlike officials in the U.S. who brand anyone leaking sensitive information as a “traitor,” Britain’s chief prosecutor, Keir Starmer, has launched a spirited defense of journalists who snoop around government agencies in the public’s interest. “We’ve got to recognise that in the course of journalism, journalists will rub up against the criminal law and that is why, in our guidelines, we took the approach that we would assess where there was evidence of a criminal offence, whether the public interest in what the journalist was trying to achieve outweighed the overall criminality.”

For Starmer, the public’s right to know and the means of securing  that right, are at least equal to the Crown’s interest in deterring and punishing crimes. “There are lots of examples of journalists who, on the face of it, may have broken the criminal law but have obviously pursued a greater good in doing so,” said Starmer, who will step down as DPP at the end of the month.

“That is why we wanted to issue guidelines, and our approach is very clear: first we look to see if an offence has been committed; well, if not, that’s obviously the end of it. If an offence has been committed, we then say: did the public interest in what the journalist was trying to achieve outweigh the overall criminality, taking into account the nature of the lead, how much information there was, what they were trying to uncover etc?”

That precept is the essence of the Public Interest Defense which is included in law of the U.K. and Canada. In Britain, the defense is most commonly applied to libel actions where the public’s right to learn about corruption or about threats to public safety outweigh notions of protecting reputations of government actors.  The defense requires both a showing of manifest public interest as well as the responsible practices of the journalist in developing the story. As the U.K.’s Supreme Court held: “There must be a real public interest in communicating and receiving the information,” and “there must be some real public interest in  having this information in the public domain.”

The defense was specifically omitted from Britain’s Official Secrets Act 1989 governing inter alia, disclosures by members of the UK’s intelligence community, but that error may be in line for correction.  Starmer notes that technology has changed dramatically since Britain’s interlocking pattern of intelligence laws was written just before the new millennium. “I think there’s a growing recognition that the legislation in place needs to be looked at again to see whether it works well in the current environment … some of the old laws should be looked at again. I think most people accept that it is necessary to have some surveillance in a democratic society. I think most people accept that it’s important to have limits and clear safeguards on that.”

In Canada, those acting in the public interest are protected from criminal prosecution if they first bring concerns affecting the public to  “his or her deputy head or, if not reasonably practical in the circumstances, the Deputy Attorney General of Canada.” If these disclosures are met with no response and after a reasonable period of time, the whistleblower may appeal to one of two independent governmental bodies set up to review allegations of government wrongdoing. The need for prior disclosure to authorities is waived in the cases of  potential “grievous bodily harm or death.” You can read about Canada’s law here.

What is the Public Interest?

The concept of the public’s interest in national security matters  involves important but conflicting concepts about safety and freedom. Certainly the public interest involves the right to be secure in one’s home and business, and free from domestic and foreign terrorist attack.  It also involves the right of the public to know about the actions of its government in order to evaluate both the propriety and effectiveness of the response to these threats. Thus, the public’s interest in national security  is an amalgam of interests and not one overriding concern. How then to define the concept?

In the UK, the public’s interest is refined in the prosecutorial guidelines based on English common law. One of the paramount concerns is the public’s right to know and a normative approach is taken in the text:

The public interest served by freedom of expression and the right to receive and impart information has never been defined in law. However, examples of conduct which is capable of serving the public interest include the following:

(a) Conduct which is capable of disclosing that a criminal offence has been committed, is being committed, or is likely to be committed.
(b) Conduct which is capable of disclosing that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which s/he is subject.
(c) Conduct which is capable of disclosing that a miscarriage of justice has occurred, is occurring or is likely to occur.
(d) Conduct which is capable of raising or contributing to an important matter of public debate. There is no exhaustive definition of an important matter of public debate, but examples include public debate about serious impropriety, significant unethical conduct and significant incompetence, which affects the public.
(e) Conduct which is capable of disclosing that anything falling within any one of the above is being, or is likely to be, concealed.

The list is not intended to be exhaustive, however the clear focus is protecting the watchdog function of the press in revealing classified information necessary for honest assessments of government actions in combination with the good faith motivation of  the journalist is making the disclosure.

Canada takes a practical approach matching the defense to prevention of a crime. Thus ”  a person acts in the public interest if

  • (a) the person acts for the purpose of disclosing an offence under an Act of Parliament that he or she reasonably believes has been, is being or is about to be committed by another person in the purported performance of that person’s duties and functions for, or on behalf of, the Government of Canada; and
  • (b) the public interest in the disclosure outweighs the public interest in non-disclosure.

Various factors are articulated to guide  the judge in determining the issue but chief among them is finding that disclosure outweighs non-disclosure. Thus in the easy case of troop movements during wartime, a non-disclosure of tactical operations would most always trump disclosure to prevent a criminal act (such as a violation of another nation’s airspace during the transport) in such a movement given the potential for loss of life as compared to the seriousness of the offense.

Unfortunately in the case of each nation’s law, there is a disconnect between the alleged criminal actor and the public rendering judgment since the judge must decide threshold questions which have nothing to do with the merits of the disclosure. In the UK, the court must first determine if the defendant may invoke the defense at all since only certain crimes are amenable to the protection of the Public Interest defense. Notably, members of the intelligence community are unable to invoke this defense  under the Official Secrets Act though the amendment to add the defense garnered substantial support in Parliament. In Canada, the two-step requirement of prior disclosure to authorities in most cases, serves as a significant limitation on the defense.  This would be akin to Horatius being compelled to gain permission from the Senate before presenting his case to the people of Rome.

So, it seems governments still seek to manage the right to plebiscite on political crimes. Instead of using the right to attack opponents or pass the buck, the modern thrust is to funnel the right through tightly defined structures that require prior governmental approval at several stages before invocation of the popular appeal.

Next Time: The Protection of Whistleblowers In the U.S.

Source:  The Guardian

~Mark Esposito, Guest Blogger

27 thoughts on “Edward Snowden And The Public Interest Defense: Part 3 – Limiting the Role of The “Public” In The Public Interest Defense

  1. Great job Mark. Without a free and unrestricted press, including internet journalists and bloggers, government can get away with anything and everything.

  2. In brief the public does not matter but the protection of the power and protection of the institution and its leaders Does. That is clearly the guiding light and the policy goal adopted by the Obama administration. Anti Constitution, anti freedom and anti founders and ultimately anti human.

  3. rafflaw:

    I know it’s narrow but I like this topic. It offends my personal sense of justice that all the government does is page through the books to find out what crime someone has committed and pays no heed at all to the motivation for the act. The government wants Snowden precisely for the reasons he suggests — maintenance of raw power. Governments get drunk on it and damn anyone who tries to take away its keys until it sobers up.

  4. Nice work Mark:

    I am concerned about the chilling effect that can be seen in the British & Canadian laws despite some good intentions. The fact that disclosure has a defense in court means in some ways the individual has to wait until trial where he or she may be cleared of wrongdoing. It would be better in my mind to not have to come to this in that the government is blocked from prosecuting in the first place. That the possibility of arrest anyway would deter many. Also the requirement in Canada of going to two state entities or processes can provide the goverment a time to destroy records or evade scandal by delaying the process indefinately can be problematic. Springing news stories of government misconduct is often better than sanitizing it through bureaucracy.

  5. Darren:

    Prescient stuff indeed. I’ll be talking about other NSA whistleblowers in the next installment and we’ll see just how much “protection” there is in whistleblower protections.

  6. I think Mark exposes another potential weakness in this traditional defense.

    Perhaps there too much prosecutorial discretion?

    The next episode (“The Protection of Whistleblowers In the U.S.”) is the one I am waiting for.

  7. The US Press has been shit and pissed on by this administration. Yet, except for a rare few exceptions, they remain compliant and loyal. Ruth Marcus of the Washington Post is a great example. She constantly belittles Snowden. Jake Tapper, who is one of the few noncompliant press, had a great debate between Marcus and Greenwald. As you might expect, Greenwald beat her like a rented mule. It was a mismatch on all levels. The point that Greenwald kept hammering is how the press has become way to chummy w/ power. When it comes to whistleblowers, there has been a paradigm shift since Watergate. The press is now part of the DC power structure. They don’t police power, they comply w/ power, and those who don’t, have their phones tapped and emails hacked. A book I have promoted, This Town, helps explain this insular, incestuous relationship.

    Snowden is really just an example of this bigger problem. I’m not going to make him into a superhero. Like of all of us, I’m quite certain he’s flawed. But, what he did is shining a bright light on what has happened to our press. That is IMHO, bigger than what the NSA is doing. I’m not diminishing their lies and felonies. I’m just saying the biggest safeguard we are supposed to have, our best defense, a fair press, has turned into a Maginot Line.

  8. nick:

    “I’m just saying the biggest safeguard we are supposed to have, our best defense, a fair press, has turned into a Maginot Line.”

    More like a chorus line.

  9. Jesselyn Radack has been sounding the alarm for some time. In case anyone does not know who she is, Ms. Radack is an attorney, and was the ethics adviser to the United States Department of Justice. She blew the whistle on the FBI when she disclosed the FBI’s ethical violations when they interrogated John Walker Lindh (the “American Taliban” captured during the 2001 invasion of Afghanistan) without an attorney present. She further alleged that the Department of Justice attempted to suppress that information. To say that she was pilloried is an understatement. Not to the degree they have warrants out for her arrest, but her revelations have cost her dearly. Speaking truth to power can get you fired, even when you are just doing what your job description calls for.

    Her book is called, “TRAITOR: The Whistleblower and the “American Taliban.” Her official web page is at this link:

    She is also a regular writer on Daily Kos. Here is a list of her columns, starting with the most recent:

  10. Our follow up topic should be the history of the Pentagon Papers and the Supreme Court.

    But as to the press in America. First, the words “free press” harken back to a time when there was no other outlets like radio, television, shortwave radio, telegraph, telephone, internet. When the Pentagon Papers case came along there were three families who owned major newspaper consortiums: The Sullivans owned the New York Times, the Grahams owned the Washington Post and the Pulitzers owned the Saint Louis Post Dispatch. All three families and all three newspapers and their other newspapers and some radio stations supported the whistleblowers.
    Now, the Pulitzers are long gone, the Grahams left this past year and Jeff Bezos owns the Washington Post and the New York Times wont stick up for New York much less Snowden.

    Whereas forty years ago we had three strong family owned newspapers standing up for the Constitution and for the rights of Americans, today we have to go off shore to find outlets to reveal the high crimes and misdemeanors of our government.

    I have talked about The 1933 Parallels. The parallels are as follows: In 1933 the German Reichstag or what we call a Parliament bldg. was burned. President von Hindenburg blamed it on The Communists and issued the Reichstag Fire Decree which suspended civil liberties. The Holocaust followed and WWII. In September 2001 some group crashed planes into the Twin Towers. Our government passed The Patriot Act which suspended civil liberties.

    See where this is going? Snowden did see where it was going. He is trying to tell you dumb schmucks some things.

  11. Excellent mark….

    Recall the Noriega case and the Sct saying the 4th amendment has no applicability outside the US…. But for Snowden being in Russia…. He’d already be back here or some place out of site….

  12. Nick Spenelli – ” A book I have promoted, This Town, helps explain this insular, incestuous relationship.”. I heard an interview with the author. When asked what was his biggest shock when the book came out he replied his biggest shock was that everyone just shrugged their shoulders and said so what. Everyone knows it and they don’t care. We have come to a vey sad state of affairs with our “independent” press.

  13. Our free press is a constitutional term which needs broader scope under our current technology. A free internet and free blogs is now the forefront of freedom in this nation. The newspapers are owned by weenies. Same with the so called broadcast media.

  14. Paul, That’s interesting. I saw him interviewed when the book first came out, on his promo tour. At that point there was little reaction. He did intimate he might become a pariah in DC. The Russert funeral is just so edifying.

  15. Excellent article, with delicate fine line enunciated by the author. I am a strong believer of Freedom of The Press, and I fear for the loss of Print Media; howver, with the 24-Hour Cable News, I worry about the haste of some TV journalists to create, rather than report and ferret out, necessary news for the public. Some journalists tend to believe thart they are immune to restraint. And If they miscue, they are seldom brough to task, or punished. Often, they are made into heros if they defy the law, when information they posess is the only inforemation that will insure that the criminal is punished. Fortunately, this sitiation is rare. But as heros go, Snowden is no hero,; cerrtainly he is no Super Hero. He had ways to deal with the NSA Info that would have embraced him into the definition of legitimate whistleblower. Hs deliberate intention to take, and violate his Oath, so as to gain access to classified info in his area, and beyond, for the sole purpose of releasing it, His fleeing ,and embracing a loud mouth. like Greenwald to act as his trumpet, clinched it ffor me. He is egotistical, beyond belief, and truly a legend in his own mind. His biggest disappointment seems to be that he is not brought back by public demand and provided a ticker-tape parade down Ffifth Avenue. Hero? Clemency? No, not to my way of thinking. Let him return, admit guilt and negotiate a plea bargain. He is a poor example of a cause celebre, to even remotely suggest a Public Benefit Defense. The NY Times editorialized that his opponebts are shrill in their denunciation of him, I find that, to the contrary, it is the Times, and his “Dancing in the Media” supporters, who are the shrill ones. He makes for a poor hero-figure, and doesn’t know when to shut up, claiming to speak for the American Public. His constanly repeating that messaget does not make him a hero. A jury of his peers awaits him, even if he doesn’ think such a jury exists.

  16. Secret policies and
    Secret laws come together in
    Secret meetings and
    Secret Courts deciding in


    “I don’t see anything that is broken today.”
    ~ James Comey, Director FBI

    That is what is broken, today…

    And so the Kabuki dance continues…
    … To act as if the law broke down and needs to be reinforced when in reality the law has been broken and the need to shield High Officials of their crimes is priority #1.

  17. 27 December 2012. Speakers are Jesselyn Radack, Thomas Drake, and William Binney. Q&A afterward is not included in this video.

  18. Remember: It is far different if YOU want to see YOUR network of friends versus having the Government gain access to YOU and YOUR network of friends, illegally with a General writ of assistance, all to collect data on YOU and YOUR network of friends just in case they need to prosecute YOU or YOUR friend(s) in the future of a crime YOU or someone in YOUR network of friends “MIGHT” commit.

    The Power of METADATA

  19. Thanks Max-1. I hadn’t known about that interview.

    In Poland they said, find me the person and I will show you the law they broke. Stazi on steroids.

    Clearly this surveillance is directed at everyone, especially those who do not accept the breakdown of the rule of law.

  20. Jill,
    About metadata…
    Free Association Clause of the First Amendment is VIOLATED when meta data is collected illegally so as to create “buddy lists” to be used against me or other people associated with me.
    Perhaps, ‘inadvertently’? Ya know, in the less dishonest way possible?

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