Checkpoint: Whistleblowers Deserve Stronger Protections

Peter Dazeley

“In keeping silent about evil, in burying it so deep within us that no sign of it appears on the surface, we are implanting it, and it will rise up a thousand fold in the future. When we neither punish nor reproach evildoers, we are not simply protecting their trivial old age, we are thereby ripping the foundations of justice from beneath new generations.”

Aleksandr I. Solzhenitsyn, The Gulag Archipelago 1918–1956

The muckrakers of the early twentieth century operated as vanguards of the investigative journalistic tradition opposing governmental and corporate corruption and exposing the injustices present in society. One of the preeminent muckrakers of the modern-day was Upton Sinclair; his 1906 masterwork, The Jungle, unveiled the corruption and contamination within the meat-packing industry and is directly correlated with the passing of the Meat Inspection Act and Pure Food and Drug Act. Three weeks following the fifty-year anniversary of the Pentagon Papers- Daniel Ellsberg’s leak outlining the hopelessness of America’s Vietnam position- it remains clear today that true accountability is too often eluded. The social impetus that accompanies the publicity of such misconduct is what still inspires the whistleblowers of today to obstruct such institutional malfeasance.

Corporate Whistleblowing

Whistleblower protection laws exist as a chaotic patchwork of legislation that conditions the legality of whistleblowing by industry and approach. Private sector employees are able to report concerns directly to regulatory agencies such as the Environmental Protection Agency, the Occupational Safety and Health Administration, the Federal Communications Commission, and others. The Department of Labor states, “OSHA’s Whistleblower Protection Program enforces the whistleblower provisions… protecting employees from retaliation for reporting violations... and for engaging in other related protected activities.” The SEC’s Office of the Whistleblower offers financial rewards between ten and thirty percent collected for “high-quality original information that leads to a Commission enforcement action in which over $1,000,000 in sanctions is ordered.” The government offers protection and highly incentivizes the exposure of corporate and private wrongdoing; however, a July 2, 2021 EPA leak provided The Intercept with evidence of “pressure within the agency to minimize or remove evidence of potential adverse effects” of certain chemicals, “including neurological effects, birth defects, and cancer.” Public trust has become totally undermined by the inability to trust even the regulatory agencies designed to be serving the people and protecting our well-being.

Federal Employees

The Whistleblower Protection Act of 1989 stands as the keystone piece of legislation protecting whistleblower employment on the federal level. The Obama administration transition team had claimed in their ethics agenda, “Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity… Such acts of courage and patriotism… should be encouraged rather than stifled.” This sentiment is framed as support for whistleblowers against retaliation, but legislation sparsely protects those defending public integrity. In 2006 the Supreme Court ruled in Garcetti v. Ceballos that the First Amendment does not protect public employees who “make statements pursuant to their official duties… the Constitution does not insulate their communications from employer discipline”- the employer may freely retaliate against such comments. Such a decision serves to stifle those who would blow the whistle on employment-related injustice.

In the event of leaks from within the intelligence community, the protection of classified information is prioritized- a separate Intelligence Community Whistleblower Protection Act requires intelligence members to report “urgent concerns” to their Inspector General, who will subjectively decide its credibility. No security is granted from employment retaliation or classification status, nor are there any means of challenging such retaliation. Section A of President Obama’s Presidential Policy Directive 19 extended retaliation protection to “any officer or employee of a Covered Agency,” though notably did not cover private contractors within the intelligence apparatus. Contractors comprise nearly thirty percent of the intelligence force but only received protections five years later with the 2018 reauthorization of the Foreign Intelligence Surveillance Act. Internal reporting procedures and the narrow scope of protected information remain unethical, leaving accountability and the responsibility of systemic correction in the hands of those committing the crimes.

Chelsea Manning

Evidence of misdeeds by the U.S. military was discovered by intelligence analyst Chelsea Manning stationed at Forward Operating Base Hammer in Iraq. In 2010 Manning entrusted Julian Assange’s organization WikiLeaks with 251,287 diplomatic cables and 91,731 secret Afghanistan reports, including classified footage of a 2007 airstrike killing eleven in Baghdad. Two children were wounded in the airstrike in addition to Saeed Chmagh and Namir Noor-Eldeen, two Reuters photographers killed after operators mistook their cameras for weapons of war. Manning was reported to the Department of Defense and arrested in 2010; she was often kept naked in solitary confinement for twenty-three hours per day in Kuwait and on marine bases with no pillows or sheets.

The classification status of the airstrike footage stands as direct proof that injustice can be hidden behind classification status. The fact that immorality can be hidden from the people with claims of national security renders national security unethical as a concept. The military initially made no mention of how the Reuters photographers perished or how children received injury. Such dishonesty confirms attempts to prevent public awareness. Therefore, the argument that classified information must be withheld for national security is invalidated. The people have the right to direct knowledge of military endeavors undertaken in the name of the Constitution, and the people have the right to informed consent- the obfuscation of this information undermines the values upheld by the intelligence community.

Reality Winner

Formerly contracted as a translator for Pluribus International, Winner was arrested in 2017 for sharing with The Intercept an NSA evidence report on Russian intelligence operations after sneaking it out in her stockings. According to the report, the Russians “executed cyber espionage operations against a named U.S. Company in August 2016, evidently to obtain information on elections-related software and hardware solutions” utilizing a “voter registration-themed spear-phishing campaign targeting U.S. local government organizations.” She was sentenced to five years in prison solely to keep classified intelligence out of the public discussion; filing by prosecutors claimed it was “assessed that this further disclosure of the Intelligence Report and explaining its contents would compound the exceptionally grave harm to national security already caused by the defendant.”

Tying together Manning’s case, Winner’s, and others within the intelligence community is the citation of national security- particularly the threat stemming from leaking classified documents. Presidential Policy Directive 19 “ensures that employees… who are eligible for access to classified information can effectively report waste, fraud, and abuse while protecting classified national security information.” However, a Freedom of Information Act request by BuzzFeed revealed "with high confidence” that Manning’s “disclosure of the Iraq data set will have no direct personal impact on current and former US leadership in Iraq.” Therefore, as opposed to the charge that such leaks amount to “aiding the enemy”- of which Manning was acquitted- we can see the government utilizing national security to undermine informed consent.

Defining National Security

The Heritage Foundation states “National security is not something that merely affects the well-being of Americans… It is becoming more commonplace to view perceived social ‘injustices’ as national security problems, but this distorts the very concept.” The concept of national security is used loosely, but generally incorporates concepts such as hard and soft power, military strength, force, and national defense. When the government refers to national security through the lens of whistleblower cases, it approaches the term from a lens of political security- what the Heritage Foundation describes as “protecting the sovereignty of the government and political system.” National security is not equivalent to public safety; it refers to the government’s ability to maintain political control over its citizenry and sovereignty rather than its ability to keep the citizenry safe.

Unapologetic Dishonesty

National security may be predicated on political sovereignty, but that sovereignty is legitimized by the informed consent of the governed. The NSA’s Prism mass surveillance program exposed by Edward Snowden in 2013 was found to be illegal seven years after the initial leak. Prism was a highly classified program, and until the leak, the intelligence community insisted that no information was collected on American citizens. The state of whistleblower protection proves that the government is willing to obfuscate facts from the public, preventing us from ethically granting informed consent to the government and thus undermining its own political sovereignty.

In his Spirit of the Laws, Montesquieu states, “There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.” The current patchwork frame of clauses and acts utilized for whistleblower protection is ineffective. We cannot maintain reasonable trust in a whistleblower protection system that relies on an inherently internal and subjective reporting system basing itself on keeping information out of public knowledge. Snowden today would not be legally permitted to utilize whistleblower channels to report the very same illegal Prism program he leaked in 2013. The legality of whistleblower protection inherently benefits the unjust. Pew Research finds that public trust is at historic lows, and if trust is going to be rebuilt, we must expand protections for those who expose to the people the truth of public and private injustice. Consolidated and effective whistleblower protections must be a priority in taking accountability and operating an ethical government.