On June 23, 2015, the Parliamentary Assembly of the Council of Europe (PACE) called on the Council of Europe and EU for increased whistle-blower protections including enactment of laws that protect national security employees in public and private sectors, granting asylum to whistleblowers threatened by retaliation of their home countries, and agreement on a binding legal instrument to address these issues. The Assembly states that whistleblower protections positively impact freedom of speech, transparency, anti-corruption efforts and creates a democratic accountability mechanism.
The Assembly also called on the United States of America to allow Edward Snowden, the well-known NSA whistleblower, to return without fear of criminal prosecution under the condition that he would be able to raise a public interest defense. The United States has charged Edward Snowden with two violations of the Espionage Act of 1917 and he could face 30 years in prison. As it currently stands in the U.S. legal system, Mr. Snowden would be unable to raise a public interest defense.
A public interest defense has two key components, a claim that the alleged actions (1) were committed in the public interest (such as to spark public debate) and (2) that the benefit resulting from his alleged actions outweighs any resulting harm. A public interest defense would force the U.S. government to prove that Mr. Snowden’s alleged actions caused significant harm. The judge or jury would have a duty to weigh the facts to see if the benefit outweighs the harm to determine Mr. Snowden’s guilt. For an excellent discussion on the workings of a public interest defense as well as the public interest value of Snowdon’s disclosures versus the alleged harms, please see this blog by Sandra Coliver of Open Society Foundations.
After the PACE’s vote on the resolution, Mr. Snowden showed his support for the resolution stating that PACE’s position would be helpful to whistleblowers through Europe and around the world. Mr. Snowden, generally speaking in regards to the U.S. legal system, talking about the importance of the public interest defense stated that:
[Defendants] have to waive their right to a fair trail, [to] waive a public interest defense, [accept] restrictions on the arguments they can raise in court. [Defendants] have to agree they will not use certain terms, raise certain topics, that could be considered classified by the government; because [the government] would argue that [the Defendant] would be committing a crime by discussing [their] defense in the courtroom because it would involve [the] classified information itself. This is something that is very important to resolve for all individuals; [Snowden] think[s] if [the Defendant] can’t mount a full and effective defense, arguing that [the Defendant] revealed information to the public in the public’s interest, [the Defendant] cannot have a fair trial.
Mr. Snowden also discussed expanding protections in the future to protect individuals who do not self-report or may not be able to self-report within the organization. He also stated that in order to fully address these problems there would have to criminal sanctions for government officials who over-classify or abuse the classification of documents. PACE’s Whistleblower Protection Resolution aims to protect the freedom of information and public debate.