Annotations for Speakers: Kaetan Mistry

Thanks for having us.

Right. So you mentioned the national security state, and it's famously a creation of the post World War II era, but many of the issues around national security and the protection of information date back to the beginning of the 20th century. The Espionage Act is a key plank of that infrastructure.

So as Hannah mentioned, the United States doesn't have an official secrecy act like the UK because of constitutional reasons, but it has a de facto secrecy regime and much of it has to do with the Espionage Act. So it emerges during the World War I era and it's a piece of legislation to police dissent and disseminate information, but it soon evolves into a classification tool. Now, it's a very flawed piece of legislation, which is recognised at the time and commentators continue to point out its flaws even now.

But what has happened over time is that it's ensured that the state can keep secrets whilst also allowing the press to publish them if it reaches the public domain. Yet the only way that it could reach the public domain, of course, is via whistleblowers and internal dissenters.

And what has happened is that a legal infrastructure is developed around it where the legal burden falls on that individual. All of which is to say, the Espionage Act is the key tool that's been used to prosecute whistleblowers from the earliest cases in the 1930s up until the very recent examples in the 21st century. Leading all the way up to Reality Winner and the revelations around Russian meddling in the election of 2016. So the Espionage Act is a key part of the modern secrecy regime in the United States.

Yeah, that's a great point. One of the things that came about, one of our findings from the project, was that the issue is often considered in political terms. But the way it plays out is relatively apolitical, in curious kind of ways.

So when we talk about national security whistleblowing, then it should be, we should sort of underline the point that national security whistleblowing stands apart from whistleblowing in other sectors, in the corporate world, for example, other areas of the state. The fact that it deals with national security information, places it in a somewhat of a different category, which affects the questions of reform as well. So there's a contestation, as Hannah pointed out, around who exactly is a whistleblower.

But rather than sort of quibble over labels, there are some clear characteristics that emerge. What they are could be defined very sort of generally as an insider with privileged information who makes a disclosure. This doesn't always have to be classified information, interestingly enough.

The individual's identity often authenticates the information that's being exposed. Then you have this debate around whether they are a hero or a villain, a traitor, a savior. This often plays out when politicians and the press obsess around sort of the personal motives and political ideology, rather than the content of the disclosure itself.

Another characteristic is that the state moves to persecute national security whistleblowers, and this often leads to questions, again, of the character of the individual, rather than debate over the substance of that disclosure. This is a pattern that's repeated in virtually every case over the last century. It's very much embedded in US political culture, which is what distinguishes and makes the US context quite different from other countries.

It's something which has been quite stable over different administrations, often across different political parties, and also consistent throughout the US government, across the executive branch, the congressional branch, and the legislative branch. There is much greater consensus over the approach to national security whistleblowing and the persecution of them than is commonly understood.

I think one of the misconceptions around this topic is that it falls into sort of a left right binary or a hero villain binary or the idea that you have to either valorize or to criticize whistleblowers. Whereas, one of our attempts was to avoid those sort of very black and white kind of approaches, because the more we dug into the history of the phenomenon, which in many ways continues to the present, the more these sort of political ideological lines become blurred.

You mentioned the Ukraine whistleblowers, or Snowden, Manning, Ellsberg. You can go back to Nickerson in the 50s, Herbert Yardley in the 1930s. It's a very mixed bag in terms of what their politics would be, what their motives would be.

The one thing unifying them in many ways is the notion of public interest whistleblowing. Now you can define, you can argue about what the public interest is, but it certainly wasn't, these were not individuals who were just looking to raise their concerns internally. So the question then becomes, what is the significance of whistleblowing and how do the ramifications reverberate beyond that specific issue?

And it's had quite wide ramifications in terms of secrecy, but also the reporting of secrecy, and going back to the beginning of our discussion around democracy and dissent more generally. So an interesting way to sort of think about this would be if we use the analogy of concentric circles.

So the impact of whistleblowing may begin with the individual, you'll have new rules or laws that are brought in to prevent whistleblowing. But these have ripple effects which go out across institutions and affect different groups, so it's not just that the state is suspicious of a Daniel Ellsberg.

But there is suspicion and surveillance that's extended to collaborators. So Daniel Ellsberg's lawyer, Leonard Bodine, was also under surveillance. Famously, Ellsberg's psychologist's office was broken into, which of course begins the long road to Watergate.

This suspicion has also extended in surveillance to journalists who collaborate or work with whistleblowers. Very contemporary cases like Jim Risen, who lives at the New York Times, Judy Miller, who was also at the New York Times at the time, who famously would go to jail for not revealing a source. But then also censorship moves beyond the whistleblower to other officials and those closely associated with the state.

So a presidential commission or commission into a congressional commission, all the staffers around it would be forced to sign a non-disclosure agreement, a secrecy agreement. People who are not even state officials, perhaps scholars, historians who work, who have some sort of relationship with the state, who perhaps collaborate or work with the state in some way. Colleagues that you will know, Jeremi, as well, people who perhaps serve in government.

Subsequently, all of their work will have to go through pre-publication review. And these are lifetime secrecy agreements. They're not time restricted.

So there's a great article, one of the contributions in our books by Richard Immerman, well regarded distinguished historian, and he points out the many absurdities and inconsistencies in the pre-publication review, all of which is to say you have a wide, vast lineup of characters and there's very little that they have in common, but they're all caught up in this web that's spun by the state in response to whistleblowing.

Yeah, that's---we've reflected and thought about these questions as we were sort of bringing the book to a conclusion, and it may sound pretty simplistic, but dissent is a healthy feature of democratic society, and it's essential for a healthy debate.

When it comes to national security whistleblowing, I think one of the key changes that could be made is to acknowledge that these are whistleblowers. One way to protect whistleblowers, national security whistleblowers in particular, is to recognize that they are that.

And this, I think, requires a shift in the conceptualization of whistleblowing to include the notion of disclosures in the public interest. So much of the debate is framed by political and legal frameworks when there is a bigger debate, I think, that comes to the fore, particularly looking at the history of it. We mentioned somebody like Ellsberg at the time.

There was debate as to whether he was a whistleblower. Today, he is considered as an icon, as sort of the archetypal whistleblowers. Ernest Fitzgerald, who we mentioned, reputations change over time as a political pressures context.

So it's interesting how these phenomen[a] are reconceptualized over time. But thinking forward as to what we can do in the future, I think there are some questions, some issues that can be reformed, reforms that are not radical, things like changing the Espionage Act, we're having a discussion around it; reform of the classification system, which is something which periodically always comes up. Every single political party will agree that classification is excessive, yet there's never been a serious attempt to try to rectify that.

So we started the discussion talking about whistleblowing as a radical act, but many of the sort of changes that would perhaps be required are not radical. It requires [a] sort of people to challenge the framework and to engage in discussions, I think. And that would be the key thing to, I think, emphasize for the next generation who are coming through and will be joining institutions and looking to change them for the better.

Thank you, Jeremi.