The Modern Politics of American WhistleblowingTweet
March 12, 2018
This originally appeared as part of The Whistleblower Project, a collaboration between the Society of Professional Journalists and the Government Accountability Project
Whistleblowers are critical to journalists; their disclosures can inform the public and help hold the powerful accountable. They can reveal wrongdoing that government officials or corporate titans would rather keep under wraps. Their insights can help reporters ask the hard questions and seek documents and data that can cut through a public relations spin.
But whistleblowers usually aren’t held in high esteem by their colleagues or their bosses.
Thesauruses reveal how many, historically, have viewed these individuals. The synonyms are overwhelmingly negative: “snitch,” “rat,” “tattletale,” “blabbermouth,” and so on.
In the 1960s and 70s, the image of whistleblowers began to improve, with insiders playing key roles in exposing Watergate, the Pentagon Papers, the My Lai massacre and domestic intelligence abuses. These insiders’ revelations coincided with the so-called “golden age of investigative journalism” and a more assertive Congress less willing to trust the executive branch.
Whistleblowers have come a long way both in broader American culture and in terms of the actual laws protecting them. In 1978, new federal laws were passed with implications for whistleblowing in the government: the Civil Service Reform Act, which improved whistleblower protections; and the Inspector General Act, which created watchdogs throughout the government that could investigate whistleblower tips.
Since then, Congress has seen the need to improve protections for whistleblowers in private industry and to repeatedly improve laws protecting federal workers. A 2013 report by the Congressional Research Service documents 40 federal laws on the books with whistleblower protection and anti-retaliation provisions that cover a variety of public and private sector employees. Eleven of those laws were enacted since 1999. The states have followed suit. As of 2010, 34 states had whistleblower protection laws on the books covering at least some employees.
(Although there is a proliferation of laws protecting whistleblowers, the average designation of individuals as whistleblowers doesn’t always match the protections legally available. Experts on whistleblower law urge caution before assuming protections will cover one’s disclosure.)
The expanding passage of these laws is one sign that both the right and the left sides of the political spectrum have come to value whistleblowers, at least in principle.
For instance, the Whistleblower Protection Enhancement Act of 2012 — improvements to the law that covers most federal employees — was passed by Congress with unanimous consent and signed into law by Former President Barack Obama. In the Senate, its co-sponsors ranged from Republican Senators Chuck Grassley of Iowa and Susan Collins of Maine to Democrats Daniel Akaka of Hawaii and Claire McCaskill of Missouri. In the House, Representatives Darrell Issa (R-Calif.) and Elijah Cummings (D-Maryland), who often opposed each other during House Oversight Committee hearings, were strong allies who jointly pushed through the legislation on their end.
However, this consensus can break down when it comes to individual claims. As with many matters, information is often viewed through the prism of partisan politics. Individual whistleblowers and their claims are no exception.
Linda Tripp, the Defense Department employee who became a confidante of White House aide Monica Lewinsky during Bill Clinton’s presidency, is a case in point. Tripp secretly taped conversations with Lewinsky about her affair with Clinton — the recordings were used by Independent Counsel Kenneth Starr to accuse Clinton of lying to investigators and became the basis for Clinton’s impeachment.
Whistleblower or snitch? Americans’ views of Tripp in the late 1990s landed largely based on one’s partisan preference. As The Washington Post put it in their profile of her: “Tripp has emerged as an instrument of political vengeance, or of political comeuppance, depending on which side you are on. Opinions are likely to be strong, without nuance and, sometimes, nakedly partisan.”
During the George W. Bush administration, Richard Clarke, who had been a top national security official in the White House over three administrations — both Democratic and Republican, faced intense partisan attacks after he disclosed to the public that President Bush failed to take the threat of Al Qaida seriously prior to the 9/11 attacks.
While there are numerous instances where whistleblowers and their disclosures do not strike partisan chords, this trend will likely continue whenever there are political stakes. Anonymity is one potential solution: keep the debate focused on the message rather than the messenger.
But, the use of anonymous sources creates its own challenges. In this era where talk of “deep state” conspiracies and “fake news” has pervaded public discourse, journalists have to weigh their options. Named attribution may improve credibility with some audiences. But reporters should also be mindful and respectful of their sources and the dangers they face.
In both high-profile and more run-of-the-mill whistleblower situations, anonymity is a shield, albeit imperfect, for retaliation one may face in their career and social life.
But anonymity on its own isn’t always enough to protect sources, especially when national security secrets are involved. The Obama administration prosecuted a number of intelligence officials who were sources for the press, such as Tom Drake, a former National Security Agency official who blew the whistle on a wasteful program. The state of technology, making it easier to track employees’ actions and identify leakers, and a more aggressive posture by the Justice Department set the stage for this surge in prosecutions.
This trend may be continuing under President Donald Trump. Attorney General Jeff Sessions announced last fall a tripling of the number of leak investigations. While some of these cases clearly have to do with genuine espionage, given recent Justice Department indictments, Trump has tweeted messages such as, “Information is being illegally given to the failing @nytimes & @washingtonpost by the intelligence community (NSA and FBI?)” and “After many years of LEAKS going on in Washington, it is great to see the A.G. taking action!”
In the first weeks of the new administration, Trump’s first spokesman, Sean Spicer, attacked State Department employees who used the agency’s “Dissent Channel” to raise concerns about Trump’s travel ban. “These career bureaucrats have a problem with it?” Spicer said. “They should either get with the program or they can go.” State Department regulations state that employees who use the Dissent Channel are supposed to be protected from retaliation.
Although legal protections have come a long way, whistleblowers are still vulnerable, especially when their revelations embarrass and anger powerful individuals.
Journalists and whistleblowers need each other. Without inside sources, reporters can find it more difficult to obtain internal documents, learn about wrongdoing and their ability to ask informed questions can even be crippled. Without the press, whistleblowers may have a hard time being heard and achieving any impact.
A little more than one year into the Trump administration, this relationship is perhaps more important than ever before.
Nick Schwellenbach's areas of expertise include: Government Oversight, Wasteful Contractor Spending, Open Government, Financial Sector, Whistleblower Issues.
Topics: Whistleblower Protections
Authors: Nick Schwellenbach
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