National Security Whistleblowing. Reflections on the Rationale for Exempting from Criminal Liability the Unauthorised Disclosure of Classified Information for the Purpose of Exposing State Wrongdoing

Abstract

The disclosure of wrongdoings by whistleblowers is currently encouraged by numerous countries. However, when it comes to disclosures involving illegal state secrets in matters of national security, there is a very different legislative treatment worldwide. Whistleblowers who disclose classified information with the purpose of revealing wrongdoings are usually convicted for espionage or other re lated crimes, even if their disclosures are of great public interest. The purpose of this paper is to explain why the behaviour of such whistleblowers deserves a certain degree of leniency and how this could be legally implemented. First, the arguments for and against the disclosure of classified information will be presented. Next, the role that unauthorised disclosures of classified information play in the pursuit of state transparency will be addressed. Finally, the article will present the central arguments in favour of the legitimacy of this behaviour and analyse the legal alternatives for a complete or partial exemption from criminal liability.