It is possible to fight wrongdoing from within without sacrificing your career. This survival guide, intended to help and empower conscientious government employees when they encounter wrongdoing in the workplace, covers:
- Why whistleblowing is important and professionally dangerous
- How to blow the whistle anonymously
- How best to protect your identity in the digital age
- How to navigate the bureaucracy of making an official disclosure
- How to work with the press
- The legal protections against retaliation and the limits of these protections
Legal Disclaimer: The material in this guide is provided for informational purposes only. Nothing in this publication should be construed as legal advice. Before you act on any of the material in this guide, the authors STRONGLY urge you to seek legal counsel.
“The way to right wrongs is to turn the light of truth upon them.”— Ida B. Wells-Barnett, Investigative Journalist
At government agencies, financial institutions, government contractors, and other powerful organizations, once-lonely voices speaking out against wrongdoing are increasingly being joined by others, and together they are beginning to raise a crescendo that can no longer be ignored or silenced. Institutions that break the law, commit fraud, or harm public health, safety, or security have good reason to fear whistleblowing by conscientious employees. Whistleblowers who “commit the truth”1 can prompt significant reforms, hold institutions accountable, and shine a light on agency abuses and illegal practices by sparking Congressional hearings, newspaper stories, and prominent television coverage.
Many things have changed since the days of the brown envelope slipped under the door by an anonymous source. Now, the internet and the proliferation of online platforms have expanded the means by which whistleblowers can disclose information and the number of people that information can reach, increasing the potential to make a difference. Yet many things have stayed the same, particularly the risk that whistleblowers will face retaliation. Further, while the information revolution has expanded whistleblowers’ potential audience, technological advances have also made it harder than ever before to dissent anonymously. In this edition of our book, we’ve considered these new vulnerabilities and other technological developments.
For the purposes of this book, we define “whistleblowers” as individuals who work inside organizations, either in the government or private sector, and who disclose and challenge abuses of power or other failings by their organization that betray the public trust. The whistleblowers can raise concerns purely internally or through disclosures to law enforcement, Congress, other official channels, or the public.
Some people use the term “whistleblower” colloquially to refer to journalists, activists, or others who raise concerns about an organization from the outside. While these individuals often are vital to exposing misconduct, and also sometimes face retaliation from those who are threatened or angered, they are a subset within the universe of “whistleblowers,” and not whom we spotlight in this book.
“Technological advances have made it harder than ever before to dissent anonymously.”
Moreover, the lessons we present in this book are primarily for whistleblowers working in the federal government, specifically the executive branch. However, the same lessons can be valuable for local and state government whistleblowers, private-sector whistleblowers, and anyone else who wants to bring wrongdoing to light while protecting themselves.
We do not define “whistleblowers” solely as the federal government employees who have legal rights against employer retaliation. Indeed, missing, limited, or ineffective legal protections are major themes in this book. Whistleblower-protection laws have significant loopholes.2Further, agencies responsible for turning paper rights into reality do not always have the staffing, resources, or even desire to vigorously enforce the laws, or get it right when they do.3
Unfortunately, the public can see whistleblowing through a partisan, ideological, or agenda-driven lens, rather than through one focused on the disclosure’s truth or benefit to society.4The latter should be what the public and the government care about. Even if a whistleblower is wrong about the specifics, their disclosures may still warn of valid threats, or an investigation into their concerns may still expose related misconduct.
Deciding to blow the whistle—disclosing information about breaches of public trust through internal channels, publicly, or as an anonymous source—is a professional crossroad after which the employee’s career will never be the same. Laudatory press coverage and movie portrayals can sometimes cast whistleblowing in a glamorous light. Individuals like analyst Daniel Ellsberg, who leaked the Pentagon Papers; FBI agent Coleen Rowley, who blew the whistle on the FBI’s failures leading up to 9/11; Enron executive Sherron Watkins, who brought to light the company’s rampant fraud; and scientist Jeffrey Wigand, who exposed dangerous lies by the tobacco industry, are viewed by many as truth-tellers who were successful.5 But beyond the limelight, these public figures and others who choose to follow their conscience often experience a darker reality.
Retaliation against whistleblowers is widespread and poses a significant barrier to the accountability and transparency of government and corporate conduct. According to government surveys of federal workers in 2010, “approximately one-third of the individuals who felt they had been identified as a source of a report of wrongdoing also perceived either threats or acts of reprisal, or both.”6 An updated 2017 employee survey found that, despite passage of the landmark Whistleblower Protection Enhancement Act of 2012, about 30 percent of government employees say they fear retaliation if they report wrongdoing.7
“About 30 percent of government employees say they fear retaliation if they report wrongdoing.”
Retaliation against private-sector whistleblowers is also troubling. Despite the enactment of new whistleblower rights following the financial meltdown caused by the home-mortgage crisis of 2007, instances of reprisal against employees for reporting wrongdoing have doubled from 22 to 44 percent since 2013, with 72 percent of employees who were retaliated against saying it happened within three weeks of making a disclosure.8 Research shows that the legitimate fears of reprisal and futility—that speaking up will not change anything—continue to be the dominant reasons employees in all sectors stay silent despite witnessing wrongdoing in organizations.9
Federal whistleblower law prohibits managers from taking personnel actions against employees who make any lawful disclosure of information they reasonably believe is evidence of “any violation of any law, rule, or regulation; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety.”10 But skepticism and fears of reprisal are justified, because although these protections exist on paper, only a small fraction of employees who filed retaliation claims prevail through the legal process.11
Fortunately, legal rights for whistleblowers are steadily getting stronger, and the chances of winning protection have improved. After a thirteen-year campaign by the Make It Safe Coalition, of which our organizations are members,12Congress unanimously passed the Whistleblower Protection Enhancement Act of 2012. That legislative makeover of whistleblower rights reversed more than a decade of hostile court rulings, restored access to an appeals process, outlawed agency gag orders, and offered reinforced protection against scientific censorship.13
Similarly, since the 1990s, Congress has passed numerous whistleblower laws providing much of the private sector—including government contractors—with rights enforced through jury trials.14Congress’s votes to approve the Whistleblower Protection Enhancement Act and the expansions of corporate whistleblower rights represent an impressive legislative mandate for employee speech rights. This edition of our book keeps pace with new legal developments, and the chapter on the law has been expanded to discuss legal protections for federal contractor, FBI, intelligence community, and military whistleblowers.
Unfortunately, confusion about and lack of awareness of whistleblower rights by employees and managers alike are widespread.15And disclosures by employees may anger bosses who face scrutiny as a result.
In sum, whistleblowing continues to be dangerous, and the risk of retaliation remains.
“Confusion about whistleblower rights—by employees and managers alike—is widespread.”
For instance, during the Obama Administration, whistleblower retaliation at the Department of Veterans Affairs made national headlines when the Office of Special Counsel reported a massive surge in whistleblower-retaliation complaints, some from employees who disclosed secret waiting lists that revealed the difficulty many veterans faced in accessing health care at Veterans Affairs medical centers.16
In another instance, several agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives asserted that the Bureau retaliated against them for disclosing that a U.S. government operation allowed the sale of thousands of guns that made their way to drug cartels in Mexico.17 The Bureau settled three of the whistleblowers’ retaliation cases.18 In the Department of Defense, Army Special Forces Lieutenant Colonel Jason Amerine had his security clearance suspended after he disclosed to Congress how dysfunctional the government’s hostage negotiation and recovery process was.19 And after Army intelligence analyst Chelsea Manning leaked massive amounts of military and State Department information to WikiLeaks, President Obama commented that Manning “broke the law” before Manning even went to trial before a military judge. Media commentators noted that President Obama may have used “unlawful command influence” because, as the commander-in-chief, he was the judge’s ultimate boss.20 These are just a handful of examples.
The Trump Administration also sent chilling signals to whistleblowers. In response to a press question about State Department officials who used the agency’s dissent channel to register concerns with the first version of President Trump’s travel ban, then-White House press secretary Sean Spicer said, “they should either get with the program or they can go.”21 After an anonymous author who claimed to be a senior Administration official wrote a New York Times op-ed critical of the White House, the President called for investigation to find the author.22
The retaliation even applies to high-level officials who have left government: President Trump yanked the security clearance of former CIA Director John Brennan specifically for criticizing him, and threatened the clearances of other former intelligence leaders who dissent.23As with past White Houses, the Trump Administration has also seen numerous allegations of whistleblower retaliation against rank-and-file employees.24Although the numbers peaked with the surge of Veterans Affairs complaints at the end of the Obama Administration, the Office of Special Counsel continues to receive historically high levels of complaints about prohibited personnel practices from federal employees.25
Even though both Presidents strengthened legal protections for whistleblowers—and deserve credit for that—these statements and developments during both Administrations may make lower-level employees think twice about speaking up when they witness misconduct, and certainly about identifying themselves.
Most frightening, government employees who disclose information to the press are encountering criminal investigations and prosecutions, illustrated by record levels of prosecutions of government employees under the Espionage Act. President Obama’s Justice Department used the law to prosecute more government officials who had made disclosures to the press than all past Administrations combined.26
Under President Trump, the Justice Department ramped up leak investigations, tripling the number during the first year of the Administration, according to then-Attorney General Jeff Sessions.27A top Justice Department official stated in June 2018, “The Attorney General has stated that investigations and prosecutions of unauthorized disclosure of controlled information are a priority of the Department of Justice.”28 As of February 2019, four of the six prosecutions of employees for disclosing classified or otherwise sensitive information to the press during the Trump Administration involved “disclosures related to Trump, the circle of people around him, and the Trump-Russia inquiry,” according to The Intercept.29
Another alarming fact is that due process and legal remedies available for many types of whistleblowers are woefully inadequate. For instance, unlike corporate and government contract workers, federal employees cannot seek justice against whistleblower retaliation through jury trials in courts.30
Perhaps the starkest choice government employees may confront is if they should overlook violations of law or obey a direct order to violate the law. The government employee is faced with an unpalatable choice of possible discipline for insubordination or potential liability for knowingly sanctioning violations of law. While federal civil service protections make it illegal to retaliate for refusing to violate a law, rule, or regulation,31the lack of credible due process means in practice that law-abiding public servants still proceed at their own risk.
This bleak reality means that those seeking to expose and resolve problems caused by corruption, political pressure, unaccountable bureaucracies, incompetence, or illegal actions within government agencies and by powerful corporations should do so in ways that are less risky for their careers, if possible.
Caught Between Conscience and Career is intended to help employees encountering these difficult ethical issues in their workplaces and to empower them to make the best choices. It is a survival guide for whistleblowers. It walks through the difficulties that may be encountered when blowing the whistle, the path of disclosing information without disclosing your identity, how to securely communicate electronically, the pros and cons of different official government channels for disclosure, tips for working with the press, and a primer on legal protections.
The most important point is that it is possible to fight wrongdoing from within without sacrificing your career.
There is a desperate need for conscientious employees to serve as the public’s eyes and ears about what is happening within powerful organizations. The vitality of the United States’ democracy, the long-term viability of its economy, and public health, safety, and security depend upon truth-tellers to shine light on corruption and malfeasance.
There is a vibrant community of concerned citizen-activists who seek to aid those patriots who struggle to serve the public good.
Three organizations with many decades of experience supporting whistleblowers have contributed to this guide—the Government Accountability Project, Project On Government Oversight (POGO), and Public Employees for Environmental Responsibility (PEER). We can help you bring serious problems in the federal government and the private sector to light by providing assistance in exposing wrongdoing; assistance in conducting policy advocacy and media campaigns to remedy identified problems; and investigative research. The Government Accountability Project and PEER provide legal assistance and representation to whistleblowers as well. Collectively, we have helped countless conscientious employees do the right thing while still minimizing the risk to their careers.
If you blow the whistle, first learning the lessons of others who suffered can make all the difference in your own efforts. We hope this guide—reissued with new and revamped information for the 30th anniversary of the Whistleblower Protection Act—will be an effective course in how to “commit the truth,” a phrase coined by the late, legendary Pentagon whistleblower Ernie Fitzgerald.32
Tom Devine, Legal Director, Government Accountability Project
Danielle Brian, Executive Director, Project On Government Oversight
Timothy Whitehouse, Executive Director, Public Employees for Environmental Responsibility
Blowing the Whistle May Be Hazardous to Your Professional Health
“If you're going to sin, sin against God, not the bureaucracy. God will forgive you but the bureaucracy won't.”Attributed to Admiral Hyman G. Rickover
In the spring of 2014, whistleblowers at the Department of Veterans Affairs (VA) came forward and told the press horrific stories of how veterans were not receiving the medical care they needed. This sparked a deluge of disclosures by others across the VA that led to front-page stories, cable news investigative exposés, and Congressional hearings. Veterans Affairs Secretary Eric Shinseki and others resigned in the immediate wake of the scandal.33
But many of the whistleblowers who raised concerns also faced retaliation from the federal government. The Government Accountability Office issued a report in the summer of 2018 that found VA whistleblowers were “10 times more likely [than VA employees who don’t blow the whistle]…to receive disciplinary action within a year of reporting misconduct.”34
“Few paths are more professionally treacherous than challenging abuses by your own employer.”
Too often, the more successful whistleblowers are at making a difference, the more threatening they become to those whose actions cannot withstand scrutiny. Their successes can motivate retaliation if they are identified. And for those who think that blowing the whistle publicly is glamorous or a path to recognition, think again. Many whistleblowers suffer in obscurity, frustrated by burned career bridges, blackballed in their line of work, and never achieving the validation they sought. For every success story, there are an untold number of stories of professional martyrdom. The prominent, lionized exceptions stand as beacons of false hope for thousands.
Whistleblowing is always dangerous, but embarking on that path without preparation and thoughtful consideration of the consequences can be a recipe for disaster.
For those contemplating (or maybe unable to avoid) being identified as a whistleblower, we sketch out some considerations and potential negative consequences in the following pages. Sometimes whistleblowers avoid worst-case scenarios, but you shouldn’t expect to do the same: it is better to be prepared and be pleasantly surprised.
Downsides Are Apparent
It takes individuals to deliver the truth about wrongdoing and sometimes the only individuals in a position to do so work within the very organizations committing wrongdoing. But few paths are more professionally treacherous than challenging abuses by your own employer. If you are thinking of publicly opposing an action by your agency or openly reporting wrongdoing in the workplace, here are some considerations to think about before acting.
It Is Not a Fair Fight
One person against a government agency is inherently a David-versus-Goliath struggle. The organization holds most of the cards.
People who speak out loudly and publicly against their organization can face repercussions in their jobs. Not all of these repercussions are immediately obvious. Some whistleblowers are given lateral transfers to isolated or unpopular offices.35Some organizations relentlessly create a hostile workplace where they are socially ostracized.36 Some are scrutinized by management that seems to be looking for problems.37Still other whistleblowers find that they are passed over for promotions.38
The tactics for harassing whistleblowers are manifold. For example, an organization can:
- Set an employee up for failure. Usually, this means giving the employee impossible assignments and then firing or demoting them for non-performance.39
- Blacklist the employee so that they cannot find gainful employment in their chosen field. That employee then serves as an example to scare off others from the same fate.40
- Conduct a retaliatory investigation41and charge the employee with an offense as minor as stealing pens.42Smears of alleged misconduct similar to what the whistleblower is challenging are common, potentially to undermine the whistleblower’s credibility and make them look like a hypocrite. Significantly, federal whistleblower law does not allow employees to challenge retaliatory investigations until there is a subsequent personnel action.43Whistleblower protections only create protections from adverse employment-related actions, such as terminations and demotions, and do not shield against criminal prosecutions. That means they have no anti-retaliation rights against this not-uncommon tactic. The criminal charges whistleblowers have faced have ranged from theft or misappropriation of government property to violations of the Espionage Act.44
- Discredit or humiliate the whistleblower by questioning their mental health, professional competence, reliability, or honesty. One tactic is to order the employee to undergo a psychiatric examination. Often the agency can hide behind privacy laws to hint that there is a problem with the employee that the agency is not at liberty to disclose.45
It Often Misses the Point
When agency employees go public with tales of malfeasance or other information of public concern, the media spotlight may focus on the personality at the expense of the issue. Whistleblowers may find that they become the story.
There are a number of problems with this.
Government agencies often find it easier to distract from their misconduct by attacking the messenger than addressing the message. Rather than face the problems brought to light, managers may simply try to focus attention on the “disgruntled” employee.”46The conscientious worker is then portrayed as vengeful, dishonest, and self-serving. Women can face misogynistic accusations and racial minorities can face racist allegations.47
“Government agencies often find it easier to distract from their misconduct by attacking the messenger than addressing the message.”
This allows the agency to turn the tables and put the employee, or their motives, on trial: Is the whistleblower a good employee? Does the whistleblower have a hidden agenda like revenge or ambition? In many instances, the whistleblower’s work record is irrelevant to the issue at hand, but it can occupy center stage in terms of public attention.
In instances where the employee is fighting to obtain a remedy for retaliation, the case turns on questions of employment law (see Chapter 6) such as: Was the termination lawful? Is there a legitimate reason for the transfer? Did the agency abuse its discretion? The concern the employee raised becomes a subsidiary issue in a reprisal case. This means whistleblowers must fight on two fronts—to defend themselves, and to convince government authorities to address the problems they raised.
It Often Takes the Best and Brightest Out of the Organization
Good professionals are often casualties of whistleblower conflicts. Even vindicated whistleblowers leave agencies as a matter of survival, or are too disheartened to continue in their chosen career.48Usually, it is not realistic for an employee to work for a boss they just battled.
In those instances when a whistleblower can obtain a transfer for a fresh start in the organization or industry, the whistleblower’s reputation will likely follow. At a minimum, agency managers will likely shy away from giving whistleblowers sensitive or potentially controversial assignments—in other words, the most significant work where integrity counts the most.
If a whistleblower files a legal complaint and if it results in a positive outcome, agencies often pay them to leave as the case’s final resolution. But conscientious employees who take career risks to address problems are precisely the people who best serve the public, and are the employees we need to keep in government agencies.
The human dimension to these risks should not be overlooked. Being a whistleblower is stressful.49Whistleblowers have reported impacts on personal relationships, ranging from friendships to marriages.50
Less obvious but no less real is the strain from “mind-game” retaliation. As employees are transferred to less-interesting projects or have their responsibilities removed, boredom and frustration can set in. Supervisors may overly nitpick at an employee’s work product. Once-friendly colleagues may suddenly ostracize a whistleblower as word gets around that they are on management’s bad side.
Check Your Parachutes Before You Leap: Tips for Whistleblowers
Notwithstanding the above, you may choose to blow the whistle. As we explain in later chapters, often employees do not even think they are engaging in dissent, believing they are just doing their jobs. But then they wake up one day to find that they somehow made the transition from valued worker to Public Enemy Number One. In other instances, the employee is in a situation where they have nothing to lose by fighting.
When that moment of realization or decision arrives, pause for a moment to review the following survival tips that apply to whistleblowers who choose not to act anonymously.
Nine Tips for Potential Whistleblowers
1) Consult Your Loved Ones
Blowing the whistle can impact your entire family. Before taking any irreversible steps, talk to your spouse, significant other, family, or close friends—the support group you will need in the coming days, months, or years—about your decision to blow the whistle. If they are not with you, you may want to rethink this path.51
2) Check for Skeletons in Your Closet
Any personal vulnerability or peccadillo can be used against you by your agency. If there is something in your past you do not want to see on the front page of the newspaper or shared with the world on social media, reconsider blowing the whistle. One practical step is to make a copy of the complete contents of your personnel file as insurance that your employer cannot later slip new but backdated “dirt” into it.
3) Document, Document, Document, but Be Careful
Keep copious records and a daily diary of relevant information to memorialize conversations and developments. Forward or print relevant work emails and maintain copies of records in case you are cut off from evidence in your workplace that can assist you in proving your allegations. Your chances of success will likely depend on how powerful a paper trail you produce.
Be warned, however. Proving your charges with institutional records can be extremely dangerous. It can mean criminal prosecutions for unlawfully copying or removing government records. There have even been cases where federal employees have been threatened with prosecution for sharing non-classified information.52See Chapter 2 to learn more about the risks of disclosing classified information. Corporations aggressively file multi-million dollar “SLAPP suits”53or seek criminal prosecution against employees for allegedly stealing company property, even if it is evidence of the organization’s criminal misconduct.
Depending on the potential legal liabilities involved, whistleblowers should store their copies of evidence in a secure, independent location away from their homes, preferably through an attorney where confidentiality is generally protected by attorney-client privilege. If there is any doubt, a safer tactic may be hiding copies of paper records on the organization’s premises in a location that will not draw attention, such as archives or some other innocuous location. Copies of electronic records can be stored under misleading folder names or in locations that are unlikely to be discovered (see Chapters 2 and 3 for more discussion of the risks of moving agency records). That way the whistleblower can be a navigator for law enforcement authorities, instructing them on what records to seek, and then where to find them if an employer denies their existence.54
4) Don’t Use Your Employer’s Resources
Avoid using your employer’s resources for making a disclosure or filing a retaliation claim.
Your work phone, computer, copier, and any other institutional resources all belong to the agency, and it is likely that if you use those resources to make a disclosure or file a retaliation claim, identifying information will be in management’s hands soon after you blow the whistle.55
Time is also an institutional resource. Depending on the circumstances, you could end up enabling your organization to make the argument that you committed time fraud, misappropriated agency time or resources, or simply are a poor performer.56Unless you have specific approval, such as through a union collective bargaining agreement, you also may not be able to use work time to prepare a defense for yourself in a retaliation case.
Even off the clock, you also should make it clear that you do not speak for the agency—especially if you are communicating concerns to the press.
5) Check to See Who, If Anyone, Will Support Your Account
Solidarity is important for your ability to make a difference and survive professionally. Do not wait to be cut off by your agency.
“Seek out potential allies before your situation heats up.”
Without exposing yourself as a threat to the organization, gauge the level of support among your co-workers for the concerns you might raise. See if others share your concerns. This is important for quality control, not just for your sense of solidarity. They may have knowledge to which you were not privy, and that could change your mind or modify or expand your concerns. Get a sense of whether key people will back up your account. If you can’t count on others to later testify as supporting witnesses, you may be well advised to wait before challenging misconduct. Try to stay on good terms with administrative staff who may be in a position to know of impending agency actions.
Seek out potential allies before your situation heats up, and work through intermediaries when possible. Enlist the assistance of sympathetic interest groups, elected officials, or journalists. The strength of your support coalition is often key to making the legal rights you have on paper work for you in reality.
6) Consult an Attorney Early
Do not wait until you are in the “career emergency room” before seeking professional help. As with preventative medicine, getting a little legal advice up front can protect against the need for extensive intervention later. Be careful to find an attorney who respects your goals as a whistleblower, and who is willing to safeguard your evidence. Many attorneys see their duty as preventing you from incurring the liability you are willing to risk but that you should be prepared for. This will be an intimate professional partnership, so make sure you trust and are compatible with your lawyer. One reason some whistleblowers hire attorneys is because they can make disclosures on behalf of an anonymous client, legally shielded by attorney-client privilege.57
7) Choose Your Battleground Carefully
If possible, pick a time and set of circumstances where you will have the most impact with your disclosure. The timing of your disclosure, particularly to the press, is a serious strategic decision that can affect the chances your disclosure will receive attention. Timing can also affect whether you face retaliation. Press coverage can cut both ways: it could shield you from immediate retaliation while you remain in the media spotlight, but it could also anger your management more than if your disclosures were more discreet.
If you do decide to disclose your evidence to the press, it may be wise to release your evidence incrementally rather than all at once. This can spark repeated stories that sustain the spotlight, and provide a chance to call the bluffs of overly broad institutional denials. See Chapter 5 for an extended discussion of working with the press.
8) Have A Well-Thought-Out Plan
Those who are abusing their power must be reacting to you, not vice versa. Otherwise, you will get overwhelmed by the agency’s superior resources, access to information, and political clout, and its presumed institutional credibility. Be clear-headed about precisely what you expect to accomplish and how. Do not premise your actions on the vague notion that the truth will prevail. Plan out a step-by-step scenario of what documents should be released when, and how your organization’s responses will be perceived by key audiences such as the press or government oversight bodies. As part of your advance work, get information into the hands of key potential organizational and political allies, and earn their commitment to reinforce your disclosure. Try to prepare for your management’s counter-moves by anticipating agency reactions to your charges and by mapping out the response to those moves. The tenor of this first exchange may determine if the immediate battle with your organization will be quick or drawn-out.
9) Develop an Exit Strategy
Map out where your actions will leave you a year from now, two years from now, five years, and further on. Plan out the route you want to take and how you reasonably expect your professional path to proceed. There is little doubt that you are about to embark upon a journey that will have a significant impact on your professional and personal life, and you should be prepared with a realistic roadmap of how you might get where you want to go in your career. However, you should also have contingency plans since once you make a disclosure, particularly if it becomes public, your career and life may change in unexpected ways.
Often the Better Way: Delivering the Message, Not the Messenger
Throwing away your entire career, particularly if there are other ways to air the problem, can be imprudent and counterproductive. In addition, bureaucracies prefer to focus on the “disgruntled employee” rather than the substance of the problem. The longer you can keep the spotlight on the issue and not on you, the greater the chance the problem will be addressed, the longer you will maintain access to evidence necessary to prove your concerns, and the greater the chance you can keep your job and avoid retaliation.
As discussed in the next chapter, you can bring agency troubles to light by focusing on the message without making yourself the target of management’s anger. The best way to do this is by providing powerful evidence to those who can expose the wrongdoing and take action without leaving an obvious trail for managers to trace back to you.
Deliver the Message, Not the Messenger
“Don't do the right thing looking for a reward, because it might not come.”— Major Hugh Thompson Jr., U.S. Army, Ret.
One way you can spur change at your agency is by releasing information about wrongdoing while staying under the radar.
In order to be anonymous, you must shield all of the identifying information that can be traced back to you, not just your name, from public disclosure and from your management. Your desire to remain anonymous may force you to make some high-stakes choices on what information to disclose. In some instances, the evidence that reveals agency misconduct also inherently reveals the whistleblower source, such as a sensitive memo with an extremely limited circulation or an email sent to only a few recipients. In other words, when few people know the truth, the facts can be the equivalent of your signature. In these cases, you could suffer career damage if your agency learns that you were the employee who released the information.
Unless the information you’re disclosing has titanic significance, risking your career in order to expose one act of misconduct is hard to justify.
“Anonymity prevents retaliation.”
The key then is to stay undercover and work on your own time with others, such as an advocacy group or journalist, to share the critical information in a way that leaves no fingerprints (or as few as reasonably possible). Strict confidentiality procedures coupled with ready legal assistance can help maximize your protection.
In short, anonymity prevents retaliation. Anonymity does not necessarily mean that reporters, advocacy partners, or Congressional staffers you choose to work with will not know your identity. In this book, we generally use “anonymous” to refer to whether your agency or the public knows you are a whistleblower.
Being anonymous also allows you to keep your job and to access a sustained flow of information from your agency. If you are able to maintain your anonymity, you may get advance access to any organizational strategy to deny or cover up your anonymous disclosures. This insider role is especially powerful if you are the organization’s expert on the topic and your knowledge is needed to craft the response. Needless to say, being on the organization’s damage control team can be especially advantageous in keeping a controversy alive—you can expose deliberate misstatements your agency makes to the press or to Congress. This can keep authorities or the public a step ahead of government attempts to perpetrate a cover-up. By contrast, once you’re exposed as a threat, the flow of information to you will dry up.
Techniques that have been effective at shielding identities and getting the truth out for past whistleblowers include working with advocacy partners, using the Freedom of Information Act to get documents released, and working through collective action to shield individual whistleblowers. Whether you’re working with journalists, advocacy groups, or Congressional staff, you should pin down specific confidentiality commitments before exposing yourself to risks. Some groups less sensitive to the plight of whistleblowers may choose to risk exposing your identity for what they believe is the greater good. Congressional staff may not realize they are exposing you when they demand answers from agencies by asking questions that sound like the points you are known to have made internally. Because of the great risks that come with whistleblowing, it is important to make a plan with a trustworthy advocacy group or publishing partner to prevent your exposure.
Sometimes developing and implementing such a plan takes weeks, months, or even years. Considering the alternatives, however, the wait and effort in planning are well worth it.
Working with Advocacy Partners
Having external allies and public opinion on your side can help you safely and effectively bring the truth to light. Advocacy partners can be a networking lifeline to neutralize workplace isolation, whether you are a secret source for disclosures and thus cannot talk to anyone at work about what you are doing, or you become ostracized because management identified you as the source.
An outside group can help provide you with resources, connections, and assistance in developing a constituency for the truth about abuses of power your agency is hiding. This outside affiliation can be key to effectively utilizing your limited time outside of work.
An advocacy partner may be a union, nonprofit organization, or professional society.58Whatever you choose, it is essential that you trust that the partner shares your goals and priorities, including minimizing negative consequences to you, so that your concerns and welfare are not subordinate to a pre-set agenda. An advocacy partner can work with you, your attorney, reporters, or any other players relevant to getting the truth out, such as Congressional committees.
The advocacy partner can act as both a shield to protect your identity and a conduit for your information to get to the outside world so that your concerns become known and hopefully acted-upon. This partner may also be able to identify allies within your organization.
Take the classic example of a leaked document. A document detailing disconcerting information the public should know about has been broadly circulated within an organization.66An employee who wants to make sure this document enters the public domain could try to contact a reporter directly, or could entrust it to an advocacy partner.67The partner could negotiate terms for its use with the reporter, organize others to comment about it on the record, and publicly follow up by pushing the agency to respond.68It could use the whistleblower’s evidence as the basis for a public campaign that amplifies the whistleblower’s revelations by posting documents online, issuing press releases and investigative reports, or placing relevant opinion pieces in news outlets.
In other words, it helps to have friends. But remember, each advocacy organization has its own agenda. Even if your interests appear to be aligned, the organization has no formal obligation to be loyal to you. Thus, you may want to establish a formal attorney-client relationship with an attorney at an advocacy organization.69An attorney-client relationship means that the attorney must work with your best interests in mind. The relationship is covered by the attorney-client privilege,70 which generally requires the attorney not to disclose certain information you share with them.71
The privilege generally shields information from being released, but can be challenged in court if there is some factual basis showing that an attorney gave advice related to committing a future crime.72 Given that the federal government has prosecuted employees for disclosing classified and other restricted information, it is important for the whistleblower to discuss the extent of his or her personal liability and the potential liability of the attorney regarding the dissemination of leaked information. You should be careful not to disclose any restricted information to the attorney until the attorney advises you regarding liability; as noted below, there are many scenarios in which a disclosure is protected only if it is made to certain recipients, which often does not include private attorneys.
Not all advocacy organizations will legally represent whistleblowers, though. Further, there can be conflicts between the group’s interests and the whistleblower’s. When that happens, one party or the other must waive its rights, and the advocacy organization may not want to hamper its options. So, another course is to seek out your own attorney who can act as an intermediary between you and an advocacy organization. The attorney can shield your identity, serve as a go-between for communications, and make sure your interests are not sacrificed.
If you share information with an advocacy group or others anonymously and without legal representation, those communications are inherently less controlled. Unless you obtain an advance agreement on conditions for the material you provide, the organization has a blank check to use the information however it wants, without regard to or even knowledge of the consequences for you the whistleblower.
So make sure you are comfortable with your partners and how little control you may have once you hand over information. You may not need counsel, but at a minimum you should have an explicit conversation with the advocacy partner about your concerns, and you should feel that you’re dealing with honest brokers whom you can trust with your professional life. In this situation, it may be difficult to stay anonymous to the advocacy organization’s staff, who may want to know who they’re talking to (this does not mean they will reveal your identity externally; the same goes for reporters, Congress, and official oversight offices).
Even if you feel you can negotiate on your own with the advocacy organization, it may add a layer of comfort to have an attorney who’s working for you be part of the process. They may point out considerations you have not thought of.
There are some additional cautionary notes to consider before you hand over documents to an advocacy group. See Chapter 3 for details on how to minimize your digital fingerprints when moving evidence from your agency to an advocacy partner or anyone else.
Some whistleblowers, ideally using secure methods, email pertinent documents from their agency to their personal email account or a private digital drop box, ostensibly to be able to work at home but simultaneously to preserve copies of “smoking gun” documents in case the agency later deletes the originals. Before doing so, check to make sure there are not restrictions on emailing or otherwise moving the government documents you need.84Also, it can be very dangerous to possess the documents at home, where you are vulnerable to the authorities ransacking your house.
You need to be especially careful with how you handle classified information (see the section below on the risks of classified information) or information that the law specifically prohibits public release of,85such as material covered by the Privacy Act or medical-patient privacy protections.86Remember, as noted earlier, your agency can see how you use government resources such as government computers, networks, printers, copy machines, or email accounts, so emailing yourself files or printing them at work means your agency may be able to identify you.
If you are not careful, your agency could target you for improperly taking possession of restricted information.101From the standpoint of your legal liability, a safer way to prevent destruction of documents is to secure them within the workplace, mixing them in with archives about different topics or electronically filing them under a misleading, innocuous title. Even this is not foolproof. Your agency may have rules on how government information must be secured even if the information does not leave the workplace, so you should consider that as well.
If you decide that removing evidence is necessary, you may want to consider hiring your own lawyer and asking them if they can maintain the files, and if attorney-client privilege would shield the files. Please note there’s a caveat: attorneys cannot legally receive all restricted information that potentially is provided to them, such as classified documents.102
You can also seek an attorney’s advice on the safest way to get your information to an advocacy group or others. Another way to get documents in the hands of an advocacy partner is to help the partner craft a Freedom of Information Act request to your agency (see “Liberating Agency Documents with the Freedom of Information Act” below for more).
Smoking guns and proof of cover-ups make a difference. By working with an advocacy partner, you can inform the public of the existence of incriminating documents or other evidence of malfeasance. Public awareness is often the key to holding government entities accountable for malfeasance.
Handing over evidence is only one of the ways you can work with advocacy partners. Another is educating them on the complicated bureaucratic issues, abuses of power, or violations of law that you have witnessed. While these problems can seem arcane to the general public, they often have profound impacts on public policy, and an advocacy group may be able to translate your specialized knowledge in a way that the public can easily understand.
Another option for educating the public is to submit a public comment in a federal rule-making process, as long as you do so outside of work time and using non-governmental equipment. But some offices are so politicized that many employees dare not participate in that process. And unless your comment has information protected by whistleblower laws, federal employee speech outside of the workplace on issues related to their job falls into a gray zone of First Amendment protections—meaning that you can’t rely on the Constitution to protect you from on-the-job repercussions (see Chapter 6 for a detailed discussion of legal protections).103
Another way you can get insider expertise out into the public domain is to publish white papers anonymously, with the help of an advocacy partner’s edits to ensure the issue makes sense to the public and the media. A white paper provides a lay translation of technical terms and concepts, and provides context for the details of an organization’s malfeasance or other actions that have a detrimental impact on the public. The result is a media- and public-friendly report that could only have come from an insider. These employee-written white papers have formed the basis of litigation, been the subject of legislative hearings, and helped shift the tide of policy.
Similarly, you can anonymously draft public comments, administrative appeals, document requests, or letters for signature by the advocacy group. You remain anonymous, of course. But the advocacy partner works with you to ensure that the facts are well documented. This includes citing publicly available materials and referring to—or even appending—reproduced copies of internal memos not easily available to the public (see Chapter 3 on how to minimize risks when using electronic communications and digital devices).
Liberating Agency Documents with the Freedom of Information Act
The Freedom of Information Act (FOIA) is a tool that allows anyone to request records from federal agencies. Virtually all states also have some form of public records law.
For employees inside an agency, FOIA can be a tremendous tool for putting the agency on the record. The whistleblower can tutor advocacy partners about which records to seek, or even ghostwrite FOIA requests.
If you write documents as part of your job at an agency, you should try to minimize the chance these records can be withheld from public view under FOIA exemptions.108For example, since agencies often attempt to withhold records under the “deliberative process” exemption,109if you separate legal and policy analysis—which is the kind of information often covered by the deliberative process exemption—from factual information in your writing, it is harder for an agency to justify withholding a document or documents in full. For example, you could write a memo that includes a timeline of relevant facts in one section and legal analysis in another section.
If you are receiving key records, you may consider circulating them as widely as possible without drawing unwanted attention to your action.110This wide circulation helps keep records available under FOIA from a multitude of sources.111It also makes it much harder for agencies to deny the existence of documents that have a high likelihood of turning up.
Email is another asset in the war to make government business public. Many managers write candid thoughts in emails that they would never put into formal correspondence, yet an email is just as much a public record as an old-fashioned memo is.115The ease with which emails can be forwarded makes email a powerful dissemination tool.
Anonymous whistleblowers can act as watchdogs for FOIA cover-ups. For example, during investigations of unsafe nuclear facilities, the Government Accountability Project worked with public employees to draft precisely targeted FOIA requests. These employees made copies of the records, and provided notice when documents were moved off-site, concealed, or destroyed.116Insiders have also blown the whistle to Congress on alleged abuses of the FOIA process.117
It’s important to keep in mind, however, that agency officials looking to find sources of leaks could use FOIA requests as clues to identify whistleblowers through the specificity of the requested document that could only be known by key employees. This appears to have happened with then-FBI agent Terry Albury, who pleaded guilty to providing classified information to The Intercept. Albury disclosed to reporters a pattern of surveillance by the FBI that posed risks to civil liberties, and backed that up with information from documents showing weaknesses in the Bureau’s rules against racial and religious profiling.118The Intercept filed FOIA requests for documents Albury had disclosed to it, and the FBI matched those requests up with Albury’s access to many of those documents.119
Harnessing the Collective Voice to Shield Individuals
Union organizers know that collective action provides both power and anonymity for members of groups. While bad managers can punish individual employees for simply bringing up problems, both retaliation and smears become more difficult to carry out when a group of employees speaks with one voice. The larger the group, the more the power imbalance is neutralized. For example, the Government Accountability Project recruited the president of the Food Inspectors Union to publicly speak in congressional testimony for a number of whistleblowers, providing cover for those concerned about harassment—a way to launder the truth on the record.120
A way to put this principle into action is to use employee surveys to document or dramatize problems within organizations without putting individual employees in the spotlight. With the help of an advocacy partner, surveys can be worded with employee input to expose the most important problems facing the organization.121
Once the survey is finalized, an advocacy partner works with employees to distribute the questions, encourage participation, and compile the results. The final product is a targeted audit of the organization’s leadership, fashioned by the people who best know its strengths and weaknesses.
The results are then provided to survey participants, the organization’s leaders, other decision-makers, and the media. Press amplification of survey results can help keep an organization’s leaders accountable, as public scrutiny can pressure leaders to address the problems identified and to make needed changes.122
There are other benefits to conducting employee surveys. Aside from diagnosing problems within organizations and holding leaders accountable, surveys can show individual employees that they are not alone in their concerns, reducing the sense of isolation. Best of all, if the survey is credibly designed to protect the identity of its participants,123this can be accomplished without threatening the job security of any employees who participate.
Digital Security for Whistleblowers
“Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds.”— Justice Thurgood Marshall
Technology can be a valuable tool for blowing the whistle, but it can also make it easier to identify those who expose wrongdoing. While you may be able to share information with the click of a button, chances are that click will be tracked. Luckily, there are tools that can help you remain anonymous when reaching out to advocacy groups, journalists, or other potential allies online.
Digital security best practices are constantly evolving, as are detection technologies and techniques, so there are some general principles that are important to keep in mind while you decide whom and what to trust.
Think Before You Click
Always remember that digital security tools—including those reviewed later in this chapter—may mitigate risk, but they can’t eliminate it. State and private actors have the ability to infiltrate many digital devices. No system is foolproof and it’s possible that previously unknown security flaws or user error, either by the whistleblower or those they are in contact with, could expose the source of the information.
The good news is that if you do your homework and are careful, some tools can help maintain the security of your conversations even if all your communications have been intercepted. Basic lessons to keep in mind are summarized below, with references for more advanced homework.
Basic digital hygiene is important
“Almost everyone can benefit from doing a basic digital security review.”
Almost everyone can benefit from doing a basic digital security review, even if they aren’t looking into using online whistleblower tools. Taking precautions such as using multi-factor authentication to lock down online accounts and using strong unique passwords (or better yet, a password manager) can help reduce your exposure to online threats, such as criminal hackers, or government investigations seeking the source of leaked information.
SecurityPlanner.org, a tool from the University of Toronto’s Citizen Lab, is an interactive guide that suggests ways you can protect yourself (and your data) online.124The Electronic Frontier Foundation’s Surveillance Self-Defense guide is also a valuable tool that can help you to assess what digital risks you face and to find resources to offset those risks.125All of the tools and practices set out by these guides amount to a good baseline of security best practices, or “digital hygiene.”
2) Know your digital activities are being watched at work
Accessing and removing information from government systems can be as treacherous as transmitting it. Even the best encryption will not help if you already have exposed yourself as a threat. Monitoring software is widely reported to be used by employers, both in and outside the government.126 The capabilities of such software varies, but it’s safest to assume that anything you do on an employer’s network or using their hardware, such as a work laptop or smartphone, can be tracked. Be careful about what information you access at work. Many organizations consider high-tech leakers to be like hackers, and use highly advanced specialists to uncover both. Employers usually maintain logs, keep careful track of who has access to information, and monitor for unusual patterns of access.
For example, you could come under suspicion if logs show you were one of only a few people to print or email a document that later leaks. Similarly, you could draw scrutiny if you use work resources to access information related to leaking or blowing the whistle, so it’s best to do research on these issues outside the workplace not using work-issued devices, and to use some of the privacy protection tools we will discuss later in this chapter.
“Be careful about what information you access at work.”
In some cases it may be advisable to avoid removing data from networks directly. Some organizations automatically identify which machine accessed a file, and removing information through a flash drive, for instance, may look suspicious or even immediately trigger alarms. Consider if it’s possible to instead take pictures of the screen with a separate device under your own control. Another approach is to transcribe the information word for word on paper.
As discussed in Chapter 1, it’s important that you protect the information so investigators or journalists can later verify its authenticity. If the information is on paper, bury the original document in an archive or a file with a misleading name, or “misfile” it with documents on another topic. You may want to leave a physical copy of the information hidden somewhere secure inside the organization. Also note where the document is stored electronically and be prepared to describe the structure of your organization’s systems to whomever you are working with to blow the whistle. If possible without revealing your identity, save an electronic copy of the file to a location where it is unlikely to be found, to safeguard against later erasure of the original. If the information isn’t time sensitive, create as long a time lag as possible between when you access the information and when you blow the whistle to reduce suspicions based on when people looked at it in the system.
Know your digital activities are being watched outside of work, too
Thanks to previous whistleblowers, including Edward Snowden, we know the government’s vast digital surveillance capabilities include collecting information about Americans’ communications.127Despite some transparency reforms, the classified nature of many surveillance programs makes it hard to gauge their scope.128
Many different entities, such as social networks, email providers, and the companies that actually provide internet access, also collect massive amounts of information about users in order to carry out their work and to fuel the online advertising market. This may include not only the content of communications, but also the “metadata”—such as what sites you visited or who you contacted and when. While the government may not have immediate access to your online activities, online-service providers may be legally compelled to turn over records in certain circumstances, such as during the course of a criminal investigation.
If you determine that whistleblowing is the right path for you, at a minimum never use your own or your employer’s equipment to transmit information. Use a distant public computer at a library or internet café not likely to be associated with you. If you use a public Wi-Fi access point, avoid circumstances where you must log in or where you’ll be in the view of cameras. Consider only doing research about your next steps while using some of the tools described later in this section, such as the Tor Browser or Tails.
Don’t let your documents betray you
Carefully consider if documents can identify you as the source before you share them. How many people within the agency have access to them? Is there identifying information built into the text such as timestamps, or tweaks to language or formatting unique to a certain version?
If you plan to share digital files, you should strip that information when possible. Tips on how to strip the info from file types such as Word documents, PDFs, and images are readily available online. Research on ways to cover your digital footprints is best done via Tails or Tor, tools that will be discussed later in this chapter, because searching for this type of information could throw suspicion on you if uncovered later during a leak investigation.
Scans of physical copies of documents may also include identifying information. For example, most printers leave tracking information in the form of dots not obvious to the human eye. These should be scrubbed before the document is shared, if at all possible, through methods such as converting the document to black and white and making repeated printed copies that can distort the trackers.136However, be aware that most modern scanners and copiers also have internal memory that keeps a log of files they are used to produce, so use a device that is not linked to you.137And remember that even when taking those measures, watermarks and microdot tracers—like those that appear to have exposed Reality Winner—can be difficult to entirely remove.138For that reason, you may want to consider taking photos of physically printed documents or of information as it appears on your screen.
If you have managed to safely obtain a sensitive document, don’t store digital copies on your personal computer or phone if possible. Also avoid cloud storage services like iCloud or Google Drive that can be linked to you. Instead, keep them isolated and encrypted on new, securely stored flash drives that have never been used on a computer that can be traced to you.
Encryption is your friend
The best defense against digital snooping at this time is using technologies that incorporate strong encryption, both for communications and stored data. For communications, end-to-end encryption—encryption that applies throughout the process to help ensure that only the sender and receiver can read the contents—is currently the best tool to use. This method creates a protected digital connection between the parties of a communication who know the appropriate “key.” Encrypted storage works similarly and can typically be unlocked using a passphrase key devised by the user.
However, it’s important to note that the strength of the protections that encryption provides is typically based on how long it could take someone to “crack” the key by using computers to make automated guesses to unlock the data. That means that even if communications are secured with the strongest options currently available, future advances in computing may make something that would take years or decades to crack now easier to crack in the future.
Encryption can protect the content of different types of communications, including instant messages, email, and voice calls. Generally, metadata, such as when and who you contact, may still be observable because this information is necessary to deliver messages. Some encrypted-communication products mitigate that risk by retaining minimal records or logs of such data. Check the tools section of this chapter for more information.
Be sure to verify the identity of contacts before sharing sensitive information. When visiting websites, make sure they are Hypertext Transfer Protocol Secure (HTTPS). Websites that don’t have this are susceptible to cyberattacks that can be used to trick you into thinking you are sending information to a site you trust when you are actually sending it somewhere else. Private information sent via unsecured sites may also be vulnerable to snooping by other people connected to your same network. The Electronic Frontier Foundation offers a web browser extension to assist in preventing this problem.139 The group’s Privacy Badger tool, along with the browser plugin NoScript, can also help make your online experience more secure by blocking digital trackers and potentially insecure parts of websites.140
Be careful whom you trust
It’s important to consider that using an encrypted communication method doesn’t stop whomever you are communicating with from voluntarily (or accidentally) sharing things further. Reality Winner was exposed when The Intercept shared her documents with a government agency to verify their authenticity. Before sharing records with a journalist or organization, make sure the recipient will be satisfied to authenticate the record by using other information or by proof such as supporting witnesses, not by running the document past its originating agency. Your communications may also be exposed if their (or your) devices are compromised, either through malicious hacking or a legal method, such as being forced to comply with a court order.
“Consider: would the organization or journalist you’re working with be willing to resist a subpoena to protect your identity?”
If you have safely accessed information, one option is to transmit that information through a tech-savvy lawyer who uses encryption best practices. In addition to the technological safeguards, you may be shielded by the attorney-client privilege if you pursue this route. However, that protection may not hold up in all situations, such as when facing Congressional inquiry.141A lawyer also may be able to negotiate an agreement with legally binding commitments before you turn over sensitive information to potential allies.
Research the security track records of individuals and organizations before you reach out to them. Do they use recommended encrypted communication services? Will they commit to stripping any identifying information from documents, and explain to you their process for doing so? What is their policy on responding to government demands for information, and how have they responded to past demands? Have they been the victims of hacks before? If so, what was the fallout? Have sources been compromised due to their digital security failures?
These questions and more will play into how much information you feel comfortable sharing with those you contact. Consider: would the organization or journalist you’re working with be willing to resist a subpoena to protect your identity? If not, do you want them to know who you are?
Once you’ve decided to reach out to an organization or journalist, carefully consider what you want the ground rules for your communications to be. Ask for concrete definitions for terms like “on background” or “off the record,” which organizations and journalists may interpret in different ways (see Chapter 5 for more on this).
Using digital tools isn’t always the best way
In some cases, in-person meetings may be less risky. When setting up a physical meeting, look for places without cameras and where neither you nor the person you are meeting have to sign in or are likely to be recognized. Examples include public parks, community centers, and trails.
And remember: most people now carry an incredibly sophisticated digital snooping device around with them—their smartphone. Location or other types of information tracked by devices such as cell phones (including older “feature phones”), smartwatches, or even other digitally connected devices like fitness trackers may be cross-referenced and used to help identify who a person has interacted with—even if you turn off location tracking in your devices’ settings—so leave them at home if you set up an in-person meeting, and ask whomever you are meeting with to do the same.142Many smartphones also do not allow you to remove their batteries, leaving them vulnerable to potential attacks where the device may appear to be powered down, but actually is still surreptitiously collecting information. If compromised, your phone could even be turned into a video- or audio-recording bug.143
Cars can also be easily scanned and tracked through methods such as automated license plate readers; if you are using a vehicle associated with you to travel to a meeting, assume it can be tracked. Similarly, public transit that you pay for with a reloadable card, and apps like Uber and Lyft, collect information about your travels that could potentially be turned over to law enforcement during the course of an investigation. In some cases, going old-school and using foot- or pedal-power to get to a meeting may be the best option.
The digital security landscape is constantly changing
The tools and best practices laid out in this guide are recommendations based on what is known at the time of publication. But the rapid pace of innovation in information security and the increasing sophistication of digital attacks mean things may be different by the time you are reading this. What is digitally secure now may not stay that way forever. For example, encryption depends on the complexity of keys, but future developments in computing may make what are now considered secure keys easy to guess. Other surveillance technologies in development or on the rise may later uncover actions taken now. Just imagine future investigators using facial recognition technology against security-camera archives to look for who may have met with a particular whistleblower advocacy group or journalist.
You should research recent security news about a tool before deciding to use it for sensitive communications.
The Current Toolkit
The Electronic Frontier Foundation’s Surveillance Self-Defense guide maintains walk-throughs on how to set up and use many of the tools laid out below.144The Freedom of the Press Foundation, a non-profit with an emphasis on protecting public-interest journalism and whistleblowers, is also a valuable resource for information about current digital best practices.145
Note that in almost all cases, using a digital method will create some sort of data trail. However, the tools below can help minimize and hide that trail better than using ordinary communication methods.
1) Encrypted email: PGP
The most commonly recommended way of encrypting email is called PGP and relies on public key encryption. This can be done using a laptop or desktop computer and involves installing special software to set up encryption keys for your email account and then connecting with another person who has gone through the same process. The Electronic Frontier Foundation has a good step-by-step guide for the process. (Note that, as with other tools discussed in this section, PGP has encountered security problems in the past.)146
This method is effective at securing the content of email messages, but still leaves metadata, including subject lines, the sender, the recipient, and the date of a message, exposed. If you have digital records on another device, such as pictures of documents that you’ve taken with a camera or smartphone, you’ll need to securely transfer them to the computer you’re using for your PGP encrypted email before you can send them on. Consult current online resources like the Freedom of the Press Foundation or the Electronic Frontier Foundation for best practices to minimize your digital trail.
Texting, Voice Calling, and Document Sharing: Signal
Signal is an app that provides end-to-end encrypted messaging and voice calls. It’s more user-friendly than using public key encryption to protect emails, having an interface similar to most texting or instant-messenger services. Signal can also be used to share digital documents. Before discussing sensitive topics, you should verify the security of the connection between yourself and the other person by comparing safety numbers via the app, a process explained on Signal’s website.147The app also includes security features, such as the ability to set expiration times for messages, which can be used to minimize the digital trail left in the wake of blowing the whistle.
Signal is available for Android and Apple smartphones, as well as for desktop computers. Signal is open source and has undergone independent security audits.148However, the app has also had some security problems, particularly involving the desktop client. The smartphone apps have a longer security record and have had fewer reported security issues to date.149
One pitfall of using Signal is that the app, even when using the desktop variant, is inherently tied to a phone number. However, there are steps you can take to reduce the risk of being identified as the user behind a specific Signal account, such as setting up a burner phone150and using the device only in certain locations that aren’t regularly associated with you. Be sure to erase your call history, which Signal otherwise will maintain locally on your device. Court documents related to a 2016 subpoena of the app’s developer, Open Whisper Systems, appear to show that the only information retained by Signal’s systems were the date an account was created and the date an account last accessed Signal’s servers.151 However, without manual or automatic deletion of messages from your devices, the conversation could still be compromised if law enforcement gains physical access to your devices.
Web Browsing: Tor
Tor is a network that masks your online activities by encrypting your traffic and routing it through different servers, or “nodes,” around the world to make it more difficult to track. It also allows you to access special websites that end in .onion, such as those used by the SecureDrop system, another whistleblowing tool we will discuss later in this section. At the time of publication, the most accessible way to use this network is by downloading an internet browser called the Tor Browser, a version of Firefox with various security functions built into it.152
Although Tor is a vital tool for those seeking anonymity online, it has suffered security failures in the past,153 and some experts believe traffic over the network may receive extra scrutiny from law enforcement or intelligence agencies.154Your privacy can also be compromised if you log in to services tied to your real identity during a Tor session when you are also using it to communicate with advocates or journalists.
General Computer Use: Tails
“The Amnesic Incognito Live System,” or Tails, is a free operating system designed to provide users a private computing experience.155 It can be run on most computers from a flash drive, and it automatically incorporates encryption and other privacy-protecting tools. For example, Tails automatically routes online activities performed while the operating system is in use through the Tor network and comes preloaded with the Tor Browser to secure your browsing from prying eyes.
It is important to note that these added protections generally cause Tails to run slower than other modern operating systems. Tails is an open source project that is continually being improved upon, so it is important to ensure you are running the most recent version. It’s also worth reviewing the developer’s warnings about issues Tails cannot protect against before using it.156
Sharing Digital Documents: SecureDrop
SecureDrop is a system designed to facilitate anonymous communication between sources and non-governmental organizations or journalists and is generally considered the most secure digital method to contact a reporter or advocacy group.157Nonprofits and media outlets generally run SecureDrop on their own in-house servers and only access the encrypted communications sent through the system on computers that are running the privacy-focused operating system Tails and that are not connected to the internet, which minimizes the potential for third parties to access information shared via the system. SecureDrop also does not record many forms of potentially identifying information about submitters, such as the IP address or the type of operating system being used.
SecureDrop requires users to install and send information through the Tor Browser. The Freedom of the Press Foundation, which manages SecureDrop, recommends that whistleblowers who are sharing national security-related information go even further by using cash to purchase a new computer and connecting to the internet via public Wi-Fi that they don’t normally use.158
Official Channel Swimming: Starting and Monitoring Agency Investigations
“We must be prepared to engage in the never-ending and tedious process of continual oversight and review of our government.”— Senator Nancy Kassebaum
One of the most treacherous situations for a public servant is navigating the bureaucracy of filing whistleblower disclosures. This chapter is focused on the official channels through which you can report wrongdoing. Note that filing a whistleblower disclosure is not the same thing as filing a complaint of whistleblower retaliation. The channels through which you can file a retaliation allegation are addressed in Chapter 6.
Many employees first disclose concerns to their supervisors. These employees may not intend to “blow the whistle”—they just want to let management know about a problem or have to disclose it to do their jobs properly.159 The Whistleblower Protection Enhancement Act of 2012 protects disclosures of wrongdoing that federal employees make to supervisors or as part of their job duties (see Chapter 6 for a discussion of retaliation protections).160Still, if a supervisor feels threatened by your disclosure, you could end up in their crosshairs. Conversely, failing to report a problem can also lead to difficulties, particularly if the problem becomes embarrassing and the agency starts looking for a scapegoat.
If reporting the problem to a supervisor resolves the matter, great. If it does not, and you need to go to oversight bodies outside the chain of command, the water becomes murkier. When you go outside of your immediate organization, especially when your concerns become public, it heightens the chance that your management will become angry with you.161
Because there is the potential for retaliation when you blow the whistle, especially if you decide to file a formal disclosure outside of the chain of command, you should seek legal advice from trustworthy counsel before taking any action (although there may not be time for this, especially if you are reporting an imminent health, safety, or security matter). Legal counsel will explain what protections are available to you and how to best take advantage of them, and can also help you work with offices that may investigate your disclosure.
If you want to swim in these official channels, the following should be taken as cautionary advice.
Every major federal agency has an inspector general (IG). One of an IG’s main roles is to investigate whistleblower disclosures of internal fraud, waste, abuse, and other types of misconduct. See Chapter 6 to learn more about their role in investigating whistleblower retaliation claims.
“One of the main roles of an inspector general is to investigate whistleblower disclosures of internal fraud, waste, abuse, and other types of misconduct.”
An IG office generally conducts investigations and audits. You can file a disclosure with an IG through its “hotline,” which can usually be contacted through phone, email, or mail.170The scope of an IG review depends on the nature of the issue at hand and what type of staff is assigned to your inquiry.
Investigators tend to go narrow but deep, and focus on individuals’ misconduct, such as violations of law, regulation, or policy. Investigations that find violations of criminal laws can result in referrals for prosecutions, but whether to prosecute is a decision made by a Justice Department attorney.171Investigations can also lead to non-criminal, administrative penalties, such as termination.172Auditors look at program performance or financial management, and typically do not focus as much on individual wrongdoing.173
Under the Inspector General Act of 1978, IGs are supposed to be independent of the agencies they oversee. But reality doesn’t always match that requirement. Some agency, commission, board, and legislative-branch IGs are appointed by the head of the organization they monitor, creating a structural conflict of interest.174And while IGs for most larger agencies are nominated by the president and confirmed by the Senate, giving them greater independence from their agency, those IGs still report to the head of the agency and serve at the pleasure of the president.175 If an IG is upsetting the Administration’s apple cart, they can be removed.176
Agency employees may view the IG as a kind of knight in shining armor—an outside, objective force charging up the hill to make all right in the agency world.177However, an IG office is a bureaucracy just like any other, and can have all the dysfunctions and limitations of any other workplace.178In fact, there have been numerous instances of whistleblower retaliation within IG offices against its own staff for raising issues.179
That said, there are dedicated IG staffers who fairly and aggressively work with whistleblowers.188An IG office also often works closely with prosecutors and Congress. Even if your plan to expose wrongdoing does not involve going to an IG, an IG may be involved at some point and you should understand the limits of these offices.
You should know that inspectors general:
1) Have No Corrective Action Power
An IG can identify a problem and then make findings and recommendations. The agency in question does not have to follow IG recommendations, even if the IG confirms your disclosures.189
2) Do Not Guarantee Confidentiality
The Inspector General Act of 1978 provides that an IG should keep its sources confidential unless it “determines such disclosure is unavoidable during the course of the investigation.”190This leaves disclosure of your identity up to the discretion of the IG (an action for which you have no recourse). It’s not a theoretical possibility: IG investigators have identified whistleblowers to the whistleblower’s management, which then led to management retaliating against the whistleblowers.191
Even if an IG does not disclose your identity, it may give away information to management or conduct its inquiry in a way that makes your identity patently obvious.192If you choose to remain anonymous, you should consider negotiating signed confidentiality agreements custom-fitted to your situation. In particular, the agreement should provide that, in consultation with you or counsel, the IG will not communicate any identifiable information that can be traced back to you. Further, you should lock in a commitment to provide you with advance notice if the IG decides that release of your identity truly is unavoidable.193
3) Lack Deadlines
An IG can investigate (or ignore) your reports of wrongdoing at its leisure. The IG controls the investigation; you do not. Thus, an IG can take years to investigate a disclosure of wrongdoing. If it completes an investigation, an IG can still sit on the report, keeping it as a “draft” until it’s no longer timely.194An IG is under no obligation to publicly release the investigative report (though audit reports are usually made public).
4) Avoid Controversy
IGs sometimes seem to dwell on a $5,000 discrepancy while ignoring a $500 million issue with politically hot policy implications.195
5) Can Take Actions that Are Used Against the Whistleblower
It’s possible that your motivation for reporting will seemingly become the subject of an IG investigation.196It can seem that the IG wants to discredit your whistleblowing.197
You may believe that problems within your agency would be solved if only Congress knew about them. In reality, a Congressional solution on its own is the exception rather than the rule.
While Congress sometimes conducts investigations and investigative hearings, in many cases the bulk of the investigative work was done elsewhere, such as by an inspector general, the Government Accountability Office (GAO, an arm of Congress), or an agency.198The official purpose of the Congressional hearing is to create a public record that can inform and build a case for legislation,199but it can also be used to dramatize a situation and shape what the public thinks.200 A quintessential use of this power was the 1994 House of Representatives hearing in which tobacco company CEOs were subpoenaed to testify under oath about their knowledge of the dangers of smoking.201
“A 2010 federal survey shows that federal employees have far less faith that Congress will protect their identity than an inspector general or the Office of Special Counsel.”
Congress is an unquestionably political entity. It is made up of hundreds of offices led by Representatives and Senators, each with their own stakeholders and political commitments, as well as dozens of committees with different, sometimes overlapping jurisdictions over the parts of the federal government. Capitol Hill is awash with activity and intrigue where short-attention-spans and one-page summaries are common because of overwhelming workloads and a lack of time.202
If you seek to wade into the swirling eddies of Congress, you face risks such as having your identity inadvertently exposed to your agency. A 2010 federal survey shows that federal employees have far less faith that Congress will protect their identity than an inspector general or the Office of Special Counsel, an independent agency empowered to receive whistleblower disclosures from most federal civilian employees.203
However, Members of Congress can be great allies, and sometimes you can appeal to legislators who want to act against bureaucratic breakdowns. Legislators have access to the media and can shine a national spotlight on problems. It can be far more difficult for your organization to retaliate against you if a Member of Congress supports you.204As a result, a legislative partnership can be invaluable—but it is a relationship that you must craft carefully.
The first way many public employees contact a Member of Congress is by writing a letter laying out a problem or issue in their agency. That can be a mistake. What sometimes happens with letters from public employees is that the Congressional office sends a copy to the agency for a response.205 The perpetrators of the misconduct may be the ones who prepare the agency answer, and they learn the identity of the “troublemaker” whistleblower within their midst. Before sending sensitive material to a Congressional office, you should do preliminary research and have informal discussions to pin down ground rules. Things to consider are:
- Does the Member have a political stake in the matter? The Member’s relevant voting record could be telling, as could campaign contributions.
- Is the Member a chairperson or ranking member of a committee or subcommittee with jurisdiction over the issue, or have they worked on the issue in another capacity? If so, the Member may have staff who is knowledgeable and helpful.
- Are you a constituent of the Member or close to someone who is a constituent? Members tend to be more attentive to potential voters.
- Does the Member have a history of working with and protecting whistleblowers? Does the staff of that office have experience working with whistleblowers?
If you decide to approach a Member of Congress, you should:
- Be truthful. Members of Congress and their staff are under no obligation to work with anyone, unlike staff in oversight agencies in the executive branch specifically authorized by law to accept and review whistleblower disclosures.206They will quickly stop working with you if they learn you misrepresented facts.
- Be concise in your presentation. Their time is at a premium. You should be very clear about precisely what action you want taken, such as having a Member of Congress request that a watchdog agency such as GAO or an inspector general investigate your disclosure. (Members of Congress will rarely hold a hearing based on a whistleblower disclosure without official verification, so you generally should not ask for a hearing as an initial step.)
- Realize that Congressional staff—not the Member of Congress—will be working on your case, but the Member of Congress will be the ultimate decision-maker.
- Do the work for staff whenever possible, such as researching documents and ghostwriting questions or communications. In other words, “staff the staff.” This may mean preparing a file for them on your issue. The file should have a one-to-two page talking-points memo that concisely states the key conclusions supported by the most powerful facts, so that a staffer can make the Member appear as an expert during the five-minute walk from office to hearing room. It also should contain any prior media coverage, and expressions of support or concern from stakeholders whom you have recruited. Staffers will be grateful, because whether or not they agree with you their highest priority is to make sure their boss doesn’t appear ignorant or taken by surprise on something important to voters.
- Be courteous and flexible rather than demanding, and, if the Member helps, express your thanks even if you don’t get everything you had hoped for. You should always strive to be helpful.
If a Member of Congress or, even better, a committee chairperson, takes up your cause it is potentially a huge asset. However, be aware that no individual Member has direct authority over the executive branch. Thus, even in the face of Congressional opposition, an executive agency can still proceed to engage in the concerning activity you have blown the whistle on. That means your best ally is often one with appropriations or oversight authority over the agency in question.
Office of Special Counsel
As discussed in greater detail in Chapter 6, the Office of Special Counsel (OSC) is the main place where federal civilian whistleblowers can lodge complaints of retaliation.207Perhaps less known is that OSC is a place where a civilian federal employee can go to blow the whistle on waste, fraud, abuse, or other kinds of misconduct.208 That said, OSC is not an option for some types of federal-sector employees, such as FBI and military employees.209
In order to report a problem to OSC, you must do the following: first, file a disclosure with OSC detailing the wrongdoing. OSC then has 45 days to review your disclosure and determine whether further investigation is necessary (note that OSC often does not meet this 45-day deadline).210
If OSC finds there is a “substantial likelihood that the information discloses a violation of any law, rule, or regulation, or gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety,” OSC must immediately inform the head of the appropriate agency of the matter. That agency head is required to conduct a proper investigation into the disclosed matter. Often, the agency head tasks the agency’s inspector general to conduct the investigation. The agency head has 60 days (unless OSC grants an extension) to submit a written report outlining the findings.211
This report must include:
- A summary of the disclosure leading to the investigation
- A description of how the investigation was conducted
- A summary of all evidence found during the investigation
- A list of any real or apparent violations
- A description of any action either taken or planned to be taken in response to any violations212
Upon receiving the agency report, OSC is required to review it and determine if it contains the required information and whether the findings are reasonable. OSC has to transmit a copy of the agency report to you unless it referred the matter to the Justice Department as a potential criminal case. You have 15 days after receiving a copy of the agency report to submit comments on it to OSC. The Special Counsel then grades the report. If dissatisfied, the OSC either can direct the agency to provide more information, or simply flunk the effort.213
OSC transmits the agency report, your comments, and its own evaluation to the president, Congressional leadership, and the Congressional committee(s) with jurisdiction over the agency. OSC also makes these materials available to the public online.214If OSC does not receive the agency report within the allotted time including extensions, OSC is required to submit all available information to the president and the proper Congressional committee(s) along with a statement noting the agency failure to file its investigative report.215
The disclosure process has several strengths and weaknesses.
1) The agency is forced to deal with your allegations.
An agency may try to ignore threatening whistleblowing disclosures as long as possible, simply not acknowledging their existence and hoping the issue will blow over. When OSC orders an investigation, the agency no longer has that choice.
2) There is oversight of agency investigations.
Outside of the OSC process, when an agency acknowledges the existence of your concerns, it may respond with a quick report that rewrites or brushes aside hard issues and ignores significant evidence. This allows the agency to declare the issue was investigated and to let itself off the hook. Moreover, your contributions and evidence are often not recognized in the official record.
The OSC disclosure process, which gives you a formal opportunity to provide input on the investigation they spark, makes it harder for an agency to brush your disclosures aside. The law requires the agency to investigate your allegations and detail all material evidence it uncovered during its investigation in its report. The report also must include findings that take a stand on whether misconduct occurred, and what if anything the agency will do about it.225Your comments are officially made part of the record in full, and OSC makes an independent determination as to whether the resolution was responsible.226
3) The process can vindicate and protect the employee.
If OSC makes the finding of “substantial likelihood,” it is certifying that your allegations are credible.227
An OSC “substantial likelihood” finding provides a hook for the media to tell a story they may have otherwise ignored. Your story becomes less of an editorial risk to publish or broadcast once it has been validated to a certain extent by a government agency. The hook for several national nightly news stories on food safety, environmental threats, and national security breakdowns has been an OSC “substantial likelihood” finding.228
Also, it can be easier to successfully claim retaliation if agency management takes adverse employment actions against you in the wake of the disclosure referred by OSC. The “substantial likelihood” finding exceeds the “reasonable belief” standard that is generally the threshold to qualify for anti-retaliation protection.229
4) There is a confidentiality option.
OSC is not allowed to disclose your identity unless you consent or it feels disclosure of identity is necessary due to an imminent danger to the public or an imminent violation of criminal law.230If the process protects your identity, it can be a very effective way to shield you from retaliation (but not always).
1) OSC does not meet its own deadlines.
The small OSC disclosure unit is hopelessly backlogged. That means that scores of agency-employee disclosures languish for months and even years without action.231 Even when OSC forwards disclosures to the agency, OSC can allow the agency extension after extension so that the 60-day agency response period routinely results in delays of a year or longer. This can make an investigation less likely to succeed: during a delay, agencies can destroy evidence, people’s memories can grow fuzzy, and officials responsible for wrongdoing or witnesses to their wrongdoing may leave the government. (OSC and inspectors general cannot compel individuals who are not currently government employees to cooperate.232)
2) The process has no teeth.
While the OSC disclosure process may be an excellent transparency tool to highlight wrongdoing, OSC has no corrective power to force the agency to desist from waste, fraud, or abuse.
3) Confidentiality can be illusory.
An agency may figure out your identity even if you requested confidentiality from OSC because the agency will associate you with the issues OSC is requiring that the agency investigate. See Chapter 6 for more information on retaliation protections, how circumstantial evidence can be used to establish management’s awareness that someone is a whistleblower, and how perceived whistleblowers are protected too.
The False Claims Act and Other Bounty Programs
If you have non-public information that a company is defrauding taxpayers in Medicare or a government contract or grant, you may be able to sue under the False Claims Act to recover taxpayer dollars.233While the law has been used mostly by insiders working in the private sector whose companies do business with the federal government—such as defense contractors and drug manufacturers—some government employees have also been able to use it after reporting the fraud internally.234
If False Claims Act lawsuits are successful, whistleblowers are entitled to a percentage of the funds recovered for the U.S. Treasury, from a ten percent minimum to a 30 percent maximum of the monetary penalties enforced. There are certain requirements that must be met in these lawsuits, also known as qui tam actions: the individual filing the suit must be an original source basing the disclosure on non-public information. The lawsuit, the information within it, and the whistleblower’s role in filing the suit must also be kept secret until the Justice Department has had a chance to determine if it wants to join the suit.235Since that can take years, ironically whistleblowers can be gagging themselves through this option.
There are attorneys who specialize in qui tam lawsuits, and due to the technical nature of this area of litigation, we highly recommend that you work with an experienced attorney in this field if you’re considering a False Claims Act lawsuit.236
The False Claims Act contains anti-retaliation provisions as well, which are discussed briefly in Chapter 6.
There are also bounty programs in some federal agencies. The 2010 Dodd-Frank law, which was modeled partly on the False Claims Act,237created bounty programs for those disclosing violations of law that lead to enforcement penalties greater than one million dollars at two agencies responsible for protecting financial markets—the Securities and Exchange Commission (SEC) and the Commodities Future Trading Commission (CFTC).238
The main difference from qui tam actions is that the former are “private attorney general” actions where the whistleblower, alone or with the government, must fight and win the battle against fraud. While the Dodd Frank bounty rewards also range from 10 to 30 percent of penalties greater than $1 million, whistleblowers do not have to participate in the trial. They are rewarded merely for giving evidence to the government.
Most significant for this guide are the carefully constructed provisions in Dodd-Frank and its implementing regulations for anonymous and confidential disclosures. Whistleblowers can make anonymous disclosures, but they have to do so through counsel if they want to be eligible for an award.239 If they receive an award, their identity must then be disclosed to the enforcement agency, but the SEC and the CFTC are prohibited by law from publicly revealing the whistleblowers’ identities, even at that point.240
As with False Claims Act lawsuits, government employees can make disclosures through these bounty programs. Also similar to the False Claims Act, the disclosures must involve company misconduct, not government misconduct.241
The Medium is the Message
“We must not confuse dissent with disloyalty.”— Edward R. Murrow, Broadcast Journalist
One of the most effective tools for influencing decision-makers is the media. It can bring transparency to government agencies and shape public opinion. Government leaders are both senders and recipients of messages via the media. For these reasons, the media alternately is respected, exploited, and feared by politicians and heads of agencies.
The media can play the role of a leveler. It can bring disputes about misconduct out of the secret world of bureaucrats and into the glare of public attention. Media coverage can show the world that someone the agency is portraying as a workplace “troublemaker” is actually a public hero, or can force the resignation of a corrupt agency head who had previously been untouchable. But media exposure can also cause an agency to change its stance on negotiations with an employee from constructive and open-minded to antagonistic and closed as it finds itself on the defensive in an embarrassing public fight.
“Media attention is often fleeting. The cliché is true: today’s headlines are tomorrow’s fish wrap.”
While the media can be powerful, the effects of its coverage can be evanescent. The attention span of the public and our leaders can be distressingly short, especially in this era of the 24-hour news cycle where people consume information immediately through fast-paced social media and online news outlets, but rarely have time to digest everything they consume.
Try not to let the excitement or ego boost from media coverage undercut the point of your publicity—exposing and fixing problems. The news media frequently focuses its stories on individuals, and any stories about you may not stress the issues you are raising. And media attention is often fleeting. The cliché is true: today’s headlines are tomorrow’s fish wrap. New distractions compete daily for media attention, and the news media is a competitive business, driven by financial as well as informational dynamics, so you want to make the most of its attention while you have it.
If It Bleeds, It Leads
The saying “if it bleeds, it leads” reflects the value that the news industry places on gore. By contrast, stories about government bureaucracies or complex scientific or technical issues rarely elicit the same widespread media interest or keep viewers’ attention. And telling those stories in a compelling and succinct way can be challenging, particularly on television. As a consequence, coverage of complex or “wonky” issues is usually confined to less-sensational print or online media. Only occasionally do internal agency stories cross over from specialized publications or websites into mainstream news coverage.
This means that the interest in any story about an internal agency scandal may be limited to a handful of journalists. In order to identify that limited pool and work with them effectively to educate their readers, consider the following tips:
Decide beforehand what your role will be
Professional journalists need to feel confident that their sources are solid and that the documents they provide are real. Do not contact a reporter until you have made up your mind about whether you want to be quoted in the story or to be an unnamed source. It is vital that you know which ground rules you want to govern the interaction. Be prepared to explain why you want to be anonymous if you do, and consider whether there may be other people you can recommend the reporter talk to in order to substantiate your concerns, on or off the record.
Also think about whether to let even the reporter know your identity. Reporters usually know who their “anonymous” sources are. This information can help them assess a source’s credibility—an extremely important consideration if the whistleblower’s information could lead to a high-profile, hard-hitting story that an agency may aggressively push back on.
Know the outlet
Try to figure out whether national or local outlets are the best fit for what you are trying to accomplish. The newspaper or other outlet may have business ties (such as substantial advertising buys or sponsored events) to the entity whose misconduct you are trying to expose. Research what kind of coverage, if any, your issue has garnered in the past. Look at the outlet’s relevant editorials on the issue. Look at whether that outlet has done investigative work in the past, and whether it carries critical stories that challenge agency statements.
Know the reporter
Read several articles by the reporter written over time about this or a related issue and look at their social media profiles to see what interests or biases they may have. Compare the reporter’s work on a story with that of the competition. See whether your concerns are similar to issues that the reporter has highlighted, and whether that reporter does follow-up work. Consider the writer’s tone—it can be very telling. While the facts may all appear in the story, the tone can lead the reader toward one side of the story or the other.
Get familiar with the reporter’s ground rules
Reporters generally accept information on three levels: off the record, on background, and on the record. Unless you negotiate a different condition in advance, a reporter will assume everything you tell them is on the record and they can use it however they want. It is too late if you wait until after an interview or other interaction with the reporter to set the ground rules. If you try to place restrictions after sharing the information, the reporter may cooperate as a favor but they are not bound to do so.
Make sure you both share an understanding of what each of the levels means and entails before you share sensitive information. Asserting something is on background or off the record in an email, without the journalist agreeing to those terms, may not be sufficient. We provide the general definitions for “off the record” and “background” below. But it’s always a good idea to verify those definitions with the specific reporter you might work with before you expose your identity or your evidence, since journalists don’t consistently agree on the definitions.244
The definitions below largely reflect how they are interpreted by the Associated Press.245
“Off the record” means that your name cannot be used, and you cannot be quoted. It also means that journalists cannot publish the information you provide (unless a different source independently provides the information to them). This information can help a journalist climb the learning curve, but it cannot be exposed or referenced in reporting. You should go off the record if the information you tell the reporter—regardless of whether your name or general information about your position was mentioned—would likely identify you as the source if the information were it to be published or relayed to your agency. You should let the reporter know up front whether and how, if they use the information you give them to ask questions to other sources, they could inadvertently tip off an agency that a whistleblower is talking to the reporter.
“On background” (“not for attribution” is similar) means that your name cannot be used, but that the information you provide can be published under terms that you negotiate with the reporter. This should be for information that is an essential part of the story and could be provided by people other than you (so you won’t be identified as the source) but you think should not be attributed to you by name. This is typically seen in news stories attributing information to “senior administration officials.” On background can mean many things and it is especially important to have a conversation with the reporter about what you’re comfortable with. Are you okay if the information is sourced vaguely to you but not by name (such as “an employee in the agency who does not want to be named out of fear of retaliation”)? Would you rather a reporter simply use the information to get official confirmation or confirmation from other insider sources? Most serious news organizations will not base reporting on a sole anonymous source.
“On the record” means whatever you say can be quoted and attributed to you by name.
Pin down confidentiality before sharing any information
Depending on the nature of the information you provide, the issue in question, and a reporter’s ability to get information out of an agency through official channels, you and the reporter may have multiple conversations about how your information can be used.
If you choose to remain anonymous, you may want to start out with an “off the record” interview and later ease into an “on background” interview as you grow more comfortable with a journalist. But wherever you start, you should be cautious when interacting with the media and be clear in each conversation on what basis you’re providing information. It can be easy to assume all conversations are covered by a previous agreement, especially if you talk to the reporter repeatedly.
When whistleblowers are casual about the ground rules, too often their identity gets involuntarily “outed.” Reporters have quoted whistleblowers who thought they were speaking off the record or on background but who had failed to pin it down. Such mishaps occur, and once that media bell is rung, it cannot be un-rung.
Even if you are clear about the ground rules, you are always taking a risk that your identity will be compromised when you go directly to the press. In rare cases, an overzealous or sloppy journalist mistakenly has named an off-the-record source. More frequently, the identity of the whistleblower becomes known through a revealing description of the unnamed source.
Talking to a reporter about how to protect your confidentiality can also help them avoid inadvertent mistakes when trying to verify documents.
Have the story prepared
Start by visualizing the headline and lead paragraph of the news story you would like the reporter to write, including why the information you are providing matters to a broader audience. Start with your bottom line. Write a short, to-the-point summary and back it up with definitive documentation. Respect that the reporter has limited time, so make the research as easy as possible. The key to publicizing problems within an agency is to make the story interesting and clear, so present reporters with a compelling description of the problems and their ramifications for the media audience. That means emphasizing consequences in language that will create an image for readers. Adjectives like “horrible” and “tragic” are not news. But it is news if a town could become rubble or a crater. Remember to keep the emphasis on the story, not on yourself.
Set a deadline
Try not to leave the timing completely up to the reporter; if you do, you may find yourself frustrated. Some television networks will keep a completed story “in the can” until “sweeps” week, when they can use it to get the best ratings. By then, however, the abuse of power may be a fait accompli.
If the information is time-sensitive (for instance, you are trying to prevent a likely accident or tragedy, or affect an upcoming agency action or decision), you should make that clear to the reporter in your first interaction. Try to get a commitment, or find someone else whose schedule will make the story relevant as more than a history lesson. If there is a pending action, that usually helps a reporter prioritize your story and make the case to their editor about the news value of your disclosures. Most reporters have no shortage of items competing for their attention.
“Not every internal agency dispute or problem will merit media coverage.”
You may have access to trustworthy journalists and choose to contact them on your own, but it is usually much easier and more effective to partner with an advocate who can make those contacts on your behalf. Advocacy groups have experience working with the press and often keep tabs on journalists who cover specific topics or “beats.” These groups can also help package your information and put your story into a larger policy context than you may be able to do on your own.
Keep in mind that following these steps does not guarantee a news story. Not every internal agency dispute or problem will merit media coverage. Moreover, even if the issue is covered, you may not like the result.
Reporters Are Not Your Friends
The best reporters add value and context to information that whistleblowers provide to them. They can also bring information to the attention of senior leaders more effectively than more-junior public servants. In some instances, by refusing to take no for an answer (or a non-answer for an answer), a reporter can take a story far deeper and have much greater impact than you ever thought possible. They can also be invaluable resources for sharing or trading evidence, and referring other whistleblowers to you or your advocacy-organization partners.
“It is not a reporter’s job to find you a lawyer, to get your job back, or even to right a wrong.”
That said, the reporter is not your friend, advocate, or supporter.250 It is not the reporter’s job to find you a lawyer, to get your job back, or even to right a wrong. The reporter is just supposed to report the news accurately and fairly. Part of that process is likely to include challenging or fact-checking your allegations.
Reporters working for news organizations are not free agents. They work in a business with a chain of command and idiosyncrasies, perhaps just like your agency.
An editor may veto or cut a story. A reporter who tells you they are committed to writing a story cannot actually guarantee when it will be printed, that it will be printed in its entirety, or that it will be printed at all. Often, a reporter’s editor will cut parts of a story, even if the reporter thinks it contains key facts or analysis. Further, reporters usually do not write the headlines; a hard-hitting story may be introduced with a painfully boring—or worse, inaccurate—headline.
The agency may get equal time. In almost all cases, reporters and their editor will want to include the agency reaction or explanation as part of any story. The result may come out appearing as a “he said/she said” standoff, leaving it to the reader to guess who is right. (This is where your familiarity with the tone of the outlet is particularly valuable.)
The agency may be able to preempt your story. As the government, the agency has the advantage of being able to, on occasion, make news through an announcement or other action. Astute agencies have been known to release an announcement or other breaking news out the front door of their public affairs office to distract from the bad news coming out the back door from employees.
In addition, some reporters like to add drama to their stories. For example, a reporter may think that the tortured-whistleblower angle adds the desired human dimension to a story about internal agency conflict. In some instances, a reporter will demand a live conflict as a condition of writing the story (“Let me know when you are fired and then I’ll write,” stated one reporter to an embattled government employee). In this case, the “hook” or precipitating event for the story is the retaliation against workers. While this approach is sometimes justified, do not allow yourself to be lured into a profile at the expense of the issue. If the story needs a hook, try to avoid having it buried in your back.
Rarely is media coverage an end unto itself. Rather, it is just one component of a larger effort.
Sometimes the moment of greatest leverage with an agency is just before a news story runs because the agency may be willing to take steps it would otherwise not take in order to avoid or mitigate the media exposure. Conversely, the day after the story runs, the agency may be set in a defensive posture, unwilling to take any steps that imply an admission of guilt.
If your goal is to correct a problem, you should have a strategy for how to accomplish that and precisely what role media coverage will play. In other words, it is important to think of the process in terms of a campaign. This is another reason why it can be to your advantage to partner with advocacy groups that can help ensure your story reaches the audiences necessary to effect change. Very few problems within agencies evaporate simply because they have been the subject of one article in a newspaper. Most agencies can shrug off one story, or even one week’s worth of stories. It may take sustained media exposure to effect change.
“If your goal is to correct a problem, you should have a strategy for how to accomplish that and precisely what role media coverage will play.”
If sustained coverage is necessary, you must plan for an entire campaign and not just the first step or a single story. It can be very difficult to garner sustained media attention. Reporters may think your concerns merit only one or a handful of stories based on the information you give them. In this scenario, you need a strategy to keep up the pressure. That may include working with advocacy groups or a Member of Congress to spark an official investigation or audit of an agency, or to question the agency during a hearing. These actions may help you make your case that an agency needs to rectify the issue, especially since agencies can often waive off news reports alone as biased and slanted. But it’s harder for an agency to ignore, for instance, an inspector general’s report that confirms news reporting.
The key to earning public solidarity is sustained exposure of steadily accumulating evidence. That means pacing your releases of evidence. If you use everything at once, you’re likely to get one story that’s a blip. Your goal is to expose the story that won’t go away, generating progressively less credible denials and cover-ups.
In order to generate a series of stories in any scenario, you must assemble a lot of raw material and then refine it down to individual stories. Once you assemble an arsenal of “ammunition,” you should release pieces of it separately so that each salvo reinforces the effects of the one before it. If you can pace the intervals between “hits,” you can give the agency ample opportunity to do something counterproductive, such as putting forth a demonstrably untrue fact in its defense, instituting a “gag” order forbidding employee contact with the media, or otherwise overreacting in a way that may be newsworthy as well. Similarly, you can intersperse releases of new evidence with other developments such as letters or expressions of support from political leaders, which can be their own complementary news hooks.
“If you conduct your campaign successfully, the deepest wounds to the agency will be self-inflicted.”
It may be that a single journalist will be interested in every piece of ammunition, but if that single journalist loses steam, approaching other outlets can increase pressure on an agency. That said, recognize that journalism is a very competitive field and a reporter may feel burned if they feel like the source is playing them against their competitors. Some journalists also won’t be interested in covering what they view as the “scraps” that their competitors didn’t pursue, or will simply feel like the story has already been sufficiently covered and doesn’t merit their time.
If you conduct your campaign successfully, the deepest wounds to the agency will be self-inflicted. If the wrongdoing involves the leadership of an agency, including leadership’s failure to meaningfully address problems, after a few weeks or months of unrelenting bad news, media accounts may start to refer to the agency head as “embattled” or “beleaguered.” At that point, support for the agency may erode as political patrons shrink away from the prospect of guilt by association.
Sustained media attention also tends to spawn official investigations (see Chapter 4) that put even more pressure on agency leadership. Each investigation not only becomes a new, separate story, but each may provide a new forum to air allegations and be a magnet for new witnesses who are starting to hope that something can be done. Each new story will recount the previous developments, like an arrest rap sheet, so that the allegations continue to build toward a climax.
Media attention can also backfire. If you are still working inside an agency and are thinking about working with the press, extreme caution is in order. The agency leadership will correctly see its professional survival at stake and critical coverage can get deeply under their skin. Breaking ranks to go public often is viewed as an act of unforgivable betrayal. Even if you were initially able to raise your concerns anonymously, you may eventually be revealed by the new spotlight you’ve created.
“Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.”— Jonathan Swift, Satirist
When you experience, witness, or hear about a practice at work that you believe violates the public trust, you may feel a sort of fight or flight response: Do I tell someone with power about this in the hope of changing it, or do I look the other way?
In today’s “see something, say something” world, the hope of society is that you speak up—but repeated federal surveys have shown that one of the main reasons federal employees say they might not blow the whistle is fear of retaliation.251Up until this point, this guide has laid out options for getting the truth out while keeping your role as a whistleblower secret from your management in order to avoid the potentially devastating professional consequences you could face. But what if such anonymity is impossible because your disclosures are easily tied to you or your identity is exposed some other way? What kind of protections exist if you face retaliation? And what does a retaliation investigation look for? This chapter is an introductory menu for answers to these questions.
First the good news: In the almost 20 years since the last edition of this book, Congress and the executive branch have strengthened whistleblower rights and protections for federal employees and contractors, as well as for corporate workers. In 2012, Congress closed loopholes in the Whistleblower Protection Act that had left many federal civilian whistleblowers unprotected if they disclosed concerns to supervisors in the course of carrying out their job duties or if they weren’t the first person to make the disclosure, among countless other judicially created loopholes. Employees of government contractors, intelligence agencies, and the FBI, and uniformed members of the military have all seen improvements in their legal protections, and there has been a legal revolution in corporate free-speech rights.
But, despite these and other major victories advancing whistleblower protections, there are still critical flaws in existing laws. In addition, barriers like bureaucratic red tape, partisan squabbles in Congress, resource limitations, and timid officials who are unwilling to make waves can and do hold up access to justice, sometimes well within their discretionary authority under the law.
And the sobering truth is that even where the strongest possible protections exist, there will always be people who violate them and get away with it. Whistleblowers themselves regularly become the subject of retaliatory actions or criminal investigations, even though most of them were merely trying to right a wrong.
This chapter focuses mainly on the laws that protect most career federal civil-service employees working in the executive branch. These are employees who are protected under the Whistleblower Protection Act (WPA), as amended.252
The chapter will also outline protections for federal contractors, intelligence community employees and contractors, FBI employees, and members of the armed services. All have distinct protections and processes for blowing the whistle separate from the WPA.
Note that some federal employees lack whistleblower protections entirely and so aren’t discussed in this chapter. They include political appointees and employees in the legislative and judicial branches of government. They also include executive branch employees still in their probationary period, who have curtailed employment appeal rights under the WPA.253
If you are a covered employee and file a retaliation complaint, an investigation into your complaint will focus on four key questions regardless of whether you are a federal civilian, FBI or intelligence community, or contractor employee, or a uniformed member of the armed services. Those five key questions are:
- Did you make a disclosure protected under any law or regulation?
- Did you face an adverse employment action?
- Did the managers who took the action or played a part in it know about your protected disclosure, and if so, was there a connection between your disclosure and the subsequent personnel action you wish to challenge?
- Did your management have a legitimate, non-whistleblowing reason to take that action?
This chapter will walk you through what the answers to these questions must be in order to win a retaliation claim. It will also discuss how the different laws and regulations covering other types of federal-sector employees affect these questions. For instance, to defend itself against a retaliation claim, the military can produce weaker evidence to show it had a legitimate, non-whistleblowing reason to discipline a uniformed military whistleblower than civilian or intelligence agencies, the FBI, or contractors have to show to defend themselves.
“When deciding whether to blow the whistle, your best bet is to remain realistic in your expectations, know your rights, and speak with a knowledgeable attorney.”
The scope of what qualifies as a protected disclosure varies to some degree, too: for example, unclassified disclosures by most civilian federal employees to the press can receive protection, whereas unclassified disclosures by FBI and intelligence employees or uniformed members of the armed forces to the press do not. Nobody is protected for disclosing classified information to the press or public, period.
When deciding whether to blow the whistle, your best bet is to remain realistic in your expectations, know your rights, and speak with a knowledgeable whistleblower-law attorney before pressing forward. Your situation will likely have many nuances. And the law is not always as straightforward as it sometimes seems. For instance, case law—binding decisions by judges—makes legal analysis even more complex. This guide is just a starting point.
Federal Civilians: What’s a Protected Disclosure?
Many employees communicate concerns without thinking of their communications as whistleblowing or of themselves as whistleblowers. So it’s important for every employee to understand what types of communications are protected by law.
Under the Whistleblower Protection Act, a protected disclosure is a formal or informal communication or transmission of information that a covered employee, former employee, or applicant reasonably believes evidences:
- A violation of a law, rule, or regulation
- Gross mismanagement
- A gross waste of funds
- Abuse of authority
- A substantial and specific danger to public health or safety254
When making a disclosure, you must have a “reasonable belief” that the information is evidence to demonstrate one of these prohibited activities. This means that you must have believed that the information evidenced a prohibited activity, and your belief must be objectively reasonable, meaning it would be reasonable for someone in your position to draw the same conclusion that you did.255
There are, however, explicit exceptions. If your disclosure includes classified information, you are protected by the law only if you disclose that information to a relevant Office of Inspector General, the Office of Special Counsel (OSC), or other authorized channel that can legally receive classified material (the role of inspectors general and OSC in accepting disclosures is discussed in Chapter 4).
There are no protections for disclosing classified information to the press, the public, or to any other parties not listed in the channels for making a protected disclosure. Such disclosures are grounds for discipline up to and including termination, and possibly for criminal prosecution. The same goes for other information that statutory law restricts from public dissemination, such as private medical information and confidential tax and financial records. You will not receive protection if you disclose that information to the public or the press.256
Likewise, you generally will not receive protections for disclosing your disagreement with an agency policy decision unless you have a reasonable belief that the policy’s consequences are among the protected categories of disclosures (such as a violation of law, or a substantial and specific danger to public health or safety).263
In addition to the protected disclosures mentioned above, the law also protects employees who take certain actions from employer retaliation.264 The law makes it unlawful to retaliate against a covered employee for:
- Exercising any appeal, complaint, or grievance right granted by law, rule, or regulation, or testifying on behalf of or helping someone who is exercising one of those rights
- Cooperating with or disclosing information to an Inspector General or the Office of Special Counsel
- Refusing to obey an order that would require the employee to violate a law, rule, or regulation
For example, these rights protect against retaliation resulting from a covered employee filing discrimination complaints with the Equal Employment Opportunity Commission (EEOC). Note that OSC typically refers these retaliation complaints to the EEOC to investigate, but the act of filing a disclosure is protected as a complaint right.265
Choosing Your Audience
After you and your attorney, if you have one, determine that your disclosure falls into one of the protected categories, your next decision is to choose the recipient of your disclosure. Most federal civilian employees protected under the WPA have a wide array of people and offices they can make protected disclosures to.
For instance, you can choose to make disclosures internally to a supervisor or to someone else in your agency. However, the law does not require that you do this,266and internal disclosures are not always safe or effective. After all, your supervisors could very well be the subject of your disclosure or become messengers to warn the wrongdoer.
You can also choose to make your disclosure externally to an Inspector General, the Office of Special Counsel, Congress, advocacy groups, or the press. As noted above, if your disclosure involves classified information or other information prohibited by statute from public dissemination, you are not protected for those disclosures made to the press, the public, or anyone else not legally authorized to receive that material.
Most other types of federal workers who are excluded from the WPA—such as those in the intelligence community, the military, and the FBI—do not have the same array of outlets they can disclose to and still receive protection.267
For more on filing an initial disclosure, see Chapter 4, which details the main official oversight bodies you can bring your disclosure to: Offices of Inspectors General, the Office of Special Counsel, and Congress. Chapter 2 discusses non-governmental organizations as potential recipients for disclosures, and Chapter 5 discusses working with the press.
Federal Civilians: What’s a Personnel Action?
The Whistleblower Protection Act, as amended, makes it illegal for anyone with authority to take, direct others to take, threaten to take, recommend, or approve any “personnel action” relating to a covered employee in retaliation for blowing the whistle. This doesn’t just mean terminations or poor performance evaluations—it also includes actions not taken, such as promotions or appointments that weren’t granted.
A personnel action means a decision by someone with authority related to:
- An appointment
- A promotion
- Disciplinary or corrective action, also known as adverse action
- A detail, transfer, or reassignment
- A reinstatement
- A restoration
- A reemployment
- A performance evaluation
- A decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action
- A decision to order psychiatric testing or examination
- The implementation or enforcement of any nondisclosure policy, form, or agreement
- Any other significant change in duties, responsibilities, or working conditions268
While this is a fairly comprehensive list of employment-related actions, it’s important to note what the list doesn’t include.
An unfortunate reality is that whistleblowers often become subjects of retaliatory civil and criminal investigations.269It’s an awful tactic that diverts attention away from the whistleblower’s disclosure by refocusing attention on the whistleblower. After opening such an investigation, the agency then offers the whistleblower a choice of facing criminal prosecution, or resigning and dropping the retaliation claim.
Many agencies are getting away with this, because opening a retaliatory investigation isn’t a prohibited personnel practice under the Whistleblower Protection Act. The employee is powerless until the investigation leads to a subsequent personnel action.270But criminal referrals for prosecutions are not listed personnel actions, either, so the employee is left defenseless against retaliatory prosecutions.271Going to jail is far worse retaliation than getting fired. The Office of Special Counsel can informally ask an agency to cease a retaliatory investigation as a part of OSC’s larger investigation into the retaliation but unfortunately has very limited resources and can only investigate a few of these cases at a time.272
If you have an attorney, speak with them before blowing the whistle. Be candid—it’s important for them to be able to weigh any potential fuel that your employer may try to use against you and for you to understand the kinds of claims agencies make in an attempt to discredit whistleblowers.
Federal Civilians: What’s Management Knowledge and How Is It Proven?
After considering whether you made a protected disclosure and faced a retaliatory action under the law, investigators will look at management knowledge of your disclosure. In order for agency officials to have taken retaliatory action against you, they first must have known about your disclosure—otherwise the action wouldn’t have been retaliatory. Note that it is not necessary that the proposing or deciding official on the personnel action have knowledge if some management official who influenced the decision had such knowledge.
To determine managers’ knowledge of your disclosure, investigators can look at direct and circumstantial evidence. Direct evidence can be things like emails, confessions, testimony or documents that tie the personnel action taken against you to your disclosure. While this evidence is obviously preferred, it’s not always easy to come by unless agency officials are careless.
Circumstantial evidence can also be used either instead of or in addition to direct evidence to prove that management knew about your disclosure and retaliated. Circumstantial evidence looks at the circumstances around your disclosure and the personnel action, such as coincidental timing (you made a disclosure on Friday and were fired on Monday) or disparate treatment where all of your co-workers get some work-related reward except you, to draw logical conclusions connecting the two.
Also note that the adverse personnel action doesn’t have to stem from actual knowledge of your disclosure, but can be the result of what management should have known or of “constructive knowledge,” where the retaliating manager was influenced by someone else with actual knowledge.273This prevents a manager from developing plausible deniability by deliberately avoiding the truth. Further, “mistaken knowledge” triggers your rights. Even if you haven’t made a disclosure, if agency officials retaliate against you based on a mere belief that you made or intended to make a protected disclosure, that would be unlawful retaliation under the WPA.274
Federal Civilians: When Can an Agency Claim that the Personnel Action was Legitimate?
In retaliation cases, the burden of proof is on you to demonstrate that you made a protected disclosure, faced an adverse employment action, and that there is evidence the action was taken when management knew, should have known, or suspected you blew the whistle.
To meet that burden, you must satisfy the “preponderance of the evidence” standard, meaning there is more than a 50 percent likelihood that your claim is true, which is a fairly low bar. If you meet that burden, the agency is then put on the defensive. Did it have a legitimate, non-whistleblowing-related reason to take action against you?
In order to prevail, the agency must demonstrate that they had a legitimate reason to take the action, and must satisfy the “clear and convincing” standard—one of the highest burdens in civil law—to overcome the presumption that it retaliated.
Basically, the agency has to show that it would have taken the same personnel action even if there had not been whistleblowing. Agencies can do this by showing that their treatment of you was the same as that of other employees, that they had no motive to retaliate, that their action was put in motion before the whistleblowing, that your purported poor performance or misconduct was real, or similar valid justifications.
For this reason, you should always remember that you need to be cautious about maintaining quality performance at work. Even if you are being retaliated against, you should always try to perform your job to the best of your ability and with professionalism.
Whistleblowers who face retaliation at work and a newly and unreasonably difficult work environment may feel tempted to start using all of their sick leave or otherwise refuse to perform their job function. But underperforming would only provide ammunition to employers who will be looking for anything legitimate to use against you to defend against your claim of retaliation. While it may be frustrating, you should strive to still provide your best work and be as professional as possible.
Don’t Misuse Government Resources, Facilities, or Time
Agencies have explicit rules limiting unofficial or personal use of government resources, facilities, and time. So, at all costs, avoid using agency resources including equipment, materials, or facilities for your disclosure, and don’t work on your disclosure or gather information while at work or otherwise on the government’s time. A whistleblower caught with private correspondence to a civil society group or faxing or emailing documents to a reporter will often be disciplined for misuse of the equipment or misappropriation of government resources.
You should assume that any information on your work computer(s) or devices is open to management review. This includes work and personal email, documents saved, programs accessed or downloaded, and messages sent.
You should also forgo whistleblowing telephone conversations conducted over workplace telephone lines or on government-issued cellphones. That can not only lead to termination, but some agencies (such as certain law enforcement agencies) have regulations that allow them to monitor conversations or record all telephone calls. Furthermore, most government agencies keep a computer log of all incoming and outgoing telephone numbers dialed to or from agency telephones. These logs are frequently reviewed to find out who employees are talking with.
Similarly, agency fax machines, copiers, and scanners keep logs of all sent and received documents and may have the capacity to keep electronic copies of documents. These logs may be used to prove that an employee improperly used government equipment.
Finally, avoid using government facilities for personal purposes. For example, don’t mail corroborating documents to the press from your agency’s mailroom or fax machine.
Federal Civilians: Where Can You File Whistleblower Retaliation Claims?
Above, we’ve outlined the legal requirements to win a claim that your whistleblower rights were violated. But who do you file your claim with?
If you are a federal civilian employee seeking relief from the retaliation you’ve suffered for blowing the whistle, there are three offices you should become familiar with: the Office of Special Counsel (OSC), the Merit Systems Protection Board (MSPB), and your agency’s Office of Inspector General (IG). (The roles of IGs and OSC in receiving whistleblower disclosures are discussed at length in Chapter 4. This chapter focuses on their roles in investigating retaliation claims.)
Remember that if you are an intelligence community employee, you have unique protections that will be described in detail later in this chapter.
The Office of Special Counsel is specifically authorized by Congress to, among other things, investigate claims of retaliation.287 All federal civilian employees who have whistleblower protections can file claims of retaliation directly with OSC. If OSC believes there is sufficient evidence showing retaliation, it can negotiate with your agency to make you “whole” or propose other corrective actions.
While OSC itself can’t compel agencies to take remedial action, it can go to the Merit Systems Protection Board, an administrative court that hears executive-branch employment disputes, to seek enforcement of OSC’s corrective action recommendations. MSPB is essentially OSC’s court. OSC can also seek to temporarily block an agency’s negative action through negotiation or by asking MSPB to order a “stay,” blocking the retaliation while the case in pending, if the agency doesn’t voluntarily comply with OSC’s request. It often obtains “informal” stays from agencies while investigating the reprisal complaint. If resolution is not possible, OSC either takes the case before the MSPB or dismisses the claim, which then gives the employee the right to file directly with the MSPB on their own.
Federal civilian employees can file whistleblower retaliation claims directly with the MSPB only if they involve unpaid suspensions of more than 14 days, terminations, or other serious employment actions.
For other actions, as well as action by probationary employees who cannot otherwise bring a case to MSPB, federal civilian employees must go to OSC first. If OSC closes their case, or 120 days pass after the claim was filed with OSC without hearing about a corrective action, an employee can then proceed to MSPB. Individuals bringing their own case to the MSPB are exercising an “Individual Right of Action” (IRA). Note that employees can only raise issues in their MSPB that they’ve already raised with OSC.
Offices of Inspectors General (IGs) are internal federal agency watchdogs. Under the WPA, IGs can receive claims of whistleblower retaliation, and the Inspector General Act, as amended, dictates IG staff training and the creation of best practices for whistleblower intake and investigations.288
Each IG office must have a whistleblower coordinator who makes sure that the office is trained in whistleblower law, and to assist the IG with investigations. 289IG’s also have a general counsel that can, among other things, advise the IG on whistleblower law.
IGs are limited to investigating and making recommendations to the agency head on the whistleblower’s retaliation claim. They cannot negotiate relief for a whistleblower or pursue enforcement, even if they find retaliation occurred. Always remember, too, that an IG’s general counsel and whistleblower coordinator are not your legal representatives. They work for the IG. Further, whistleblower coordinators do not investigate retaliation cases.
Some federal employees can also use a union process to adjudicate their claims of prohibited whistleblower retaliation.
You and your attorney, if you have one, should choose your outlet for relief based on your needs. But be cautious in doing so, as exercising one right could permanently eliminate the other options. For example, if an employee goes to MSPB first with a claim that they were fired in retaliation and they lose that case, they cannot later go to OSC with that claim.
Employees who are a part of a union may have the option of participating in arbitration with the agency. This can be a good option to settle disputes quickly, and with the support and resources of the employee’s union. However, it is no longer the whistleblower’s case at that point. The union is the party in an arbitration, not the employee. Before arbitration hearings begin, unions can and frequently do drop cases that the whistleblower wants to pursue. Further, someone who elects arbitration can no longer seek relief through the Office of Special Counsel or Merit Systems Protection Board.
For most federal employees, the OSC and MSPB adjudication processes are the only way to seek legal relief when facing retaliation for blowing the whistle without losing control over their rights.290 These processes are outlined in greater detail below.
The Office of Special Counsel
The first step for most federal employees when they are subjected to whistleblower retaliation will be filing a claim with the OSC.291If you go this route, here is what to expect.
After receiving your retaliation claim, OSC must acknowledge receipt and assign the claim to an OSC contact within 15 days.292From there, the OSC must decide whether to terminate or pursue an investigation based on the information you provided.
OSC may terminate the investigation at the outset if the whistleblower is filing a repeat claim with the same facts—in other words, OSC won’t investigate the same claim filed by the same person twice, or if the whistleblower has already filed their claim with the MSPB. OSC may also terminate the investigation if it doesn’t have jurisdiction over the claim (for example, if your position isn’t covered by whistleblower retaliation protection law), or if the retaliation happened more than three years prior to being filed with OSC.293
If OSC decides to terminate the investigation immediately, it must notify you within 30 days of termination.294If it doesn’t terminate immediately, they will proceed with an investigation.
OSC investigations aim to determine if there are “reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken.”295Investigators are required to notify you within 90 days of the complaint’s filing if OSC is proceeding with the investigation and must update you on the status of the case every 60 days.296OSC then has 240 days to conduct its investigation.297
If, in the course of the investigation, OSC determines that reasonable grounds of a prohibited personnel practice do not exist, it must notify you 10 days before terminating the case.298That window gives you an opportunity to provide more information or comments related to their claim.
If OSC still decides to terminate the investigation, you have 65 days to take their case directly to the MSPB to seek relief on their own.299
If OSC ultimately finds that retaliation has occurred, it will send notice to the relevant parties, with recommendations to the agency on how to correct the retaliation.300 If the OSC and you believe the agency has sufficiently followed the OSC’s recommendations, the case can end there and the OSC files a final report.
However, if the agency fails to correct the identified problems within “a reasonable period of time,” OSC can then petition the MSPB to compel the agency to act. If the petition is not resolved, it triggers a formal hearing process at the MSPB.301Because Congress did not empower OSC to force agency action itself, it must rely on MSPB to order the agency to take action to fix the prohibited practices.
Know that the OSC has extremely limited resources compared to the number of claims it receives, and for that reason is slow to act and is only able to bring a small percentage of cases in front of the MSPB. As a result, the cases it does bring are typically high-stakes or legally significant. If the OSC doesn’t tell you whether it will investigate the case within 120 days of filing, you can skip the investigative process and can take the case directly to the MSPB on your own.302
It’s up to you and your attorney, if you have one, to decide whether to file first with OSC or the MSPB (if you qualify to do so). While filing first with MSPB will cut out a significant portion of time by eliminating an OSC investigation, it also prevents you from seeking OSC relief if things don’t work out at MSPB.
Filing first with OSC gives you two bites at the apple and also gives you an option of formal mediation through its alternative dispute resolution program, which has been highly effective (this program is discussed in more detail below).303
Merit Systems Protection Board
The Merit Systems Protection Board is a quasi-judicial entity in the executive branch made up of administrative judges (AJs) and a three-member bipartisan Board, whose members are appointed by the president with the advice and consent of the Senate. The AJs make initial decisions in retaliation cases, and the Board can review AJ decisions.304
Unlike OSC, MSPB is empowered by Congress to compel agencies to correct illegal behavior. Because of that power, the MSPB can also issue “stays” at the request of the OSC or at the request of an employee in an Individual Right of Action, preventing the agency from taking further action against a whistleblower or forcing them to rescind an action that was already taken, while an OSC investigation or MSPB case is pending.305
The MSPB applies basically the same standards in evaluating a whistleblower case that OSC does, described above. In order to get a favorable ruling at the MSPB, you must demonstrate that your whistleblowing was a “contributing factor” in the retaliation you suffered. That is a low bar: it covers any factor which, alone or in combination with other factors, tends to affect the outcome in any way.
However, the agency has an ace in the hole: If it can prove by clear and convincing evidence that it would have taken the personnel action regardless of your disclosure, the MSPB cannot order corrective action.
The process of review can be multi-tiered, depending on any appeals filed by you or the agency.
First, usually after an evidentiary hearing, administrative judges make initial decisions on allegations of prohibited personnel practices.
After an AJ’s initial decision, agencies have one option for appeal and whistleblowers have two. The losing side can appeal the case to the three-member Board. If neither you nor the agency appeals the AJ’s initial decision to the Board within 35 days, the AJ decision becomes a “final decision” of the MSPB.306
However, whistleblowers have the additional option of appealing the case to a federal appeals court. This option is available to whistleblowers because they have the right to appeal a “final decision” of the MSPB to federal court.307Agencies do not have this option in the absence of exceptional circumstances.308
Choosing to appeal an unfavorable “initial decision” to the three-member Board may be the less-expensive route to take. It also gives you another chance to prevail, in that you can appeal the three-member Board’s final decision, if you want, to federal court.
But there are downsides to this process. Once you appeal to the three-person board, the case can’t proceed to federal court until the Board releases its final decision on the appeal. (This is true, too, if the agency appeals the case to the board. By filing a petition for review, the agency keeps an AJ’s decision in favor of a whistleblower from becoming “final.” However, the relief ordered by the AJ, including reinstatement but not back pay or attorneys’ fees, goes into force while the appeal to the Board is pending.309)
While AJs have only 120 days to complete their review of a case, the Board can take as long as it wants.310Delays of one to two years are not uncommon.311
Appeals to the Board are particularly a problem at the time this book went to press. In order to make decisions on cases, the Board needs at least two active members, but, as of March 2019, it has lacked the necessary quorum for over two years, largely due to politics, since the president must nominate and the Senate must confirm the members.
In fact, at the time of this book’s publication there are no Board members. As a result, there are over 2,000 whistleblower cases stuck in limbo, waiting on the Board to make a final decision of whether to uphold the administrative judge’s initial decision.
You can alternatively choose to allow the AJ’s initial decision to become final, thereby triggering the right to take their case directly to federal court. Although it is highly unlikely that a whistleblower will win at that level, this bypasses the perhaps years-long wait for a final decision from the Board.312
However, going straight to federal court is not without its pitfalls. It will be much more expensive, because you would certainly want to hire an experienced attorney if you hadn’t already. Further, attorneys are likely to make whistleblowers pay as they go, because current law does not provide attorney’s fees for lawyers’ work in appellate courts, even if they win.
By cutting out the three-member Board and instead going to federal court, you may save time but will run up your bill and give up an additional bite at the appeals apple. Further, the appellate court could remand your case back to the MSPB, placing you back where you started.
If you first file a petition for review with the Board but later want to try your case at the federal court instead, you have the option to request a withdrawal of their petition. With no Board, this decision to approve the withdraw request is now made by the clerk of the Board. However, any objection by the agency would kill the request to withdraw because there is no Board to review it.313
Note that if an AJ’s initial decision is in your favor, the relief is granted immediately, even if the agency appeals.314This applies to pay, benefits, and other terms of employment, but does not include back pay or attorney’s fees. However, it is up to the agency to decide whether to allow an employee to physically return to work, pending the agency’s appeal to the Board.315
If an AJ’s initial decision is in favor of the agency, on the other hand, the agency’s action against the whistleblower remains in place, pending the whistleblower’s appeal. So, if the agency fired you, you are still fired while your appeal is heard.
Alternative Dispute Resolution
Another option for employees making claims of retaliation is OSC’s alternative dispute resolution program (ADR). This relatively new program sidesteps the investigative and adjudication process, which can be lengthy and expensive, and replaces it with mediation between you and the agency.
The ADR unit is largely successful, and obtaining relief through agreement rather than “victory” can lessen the chances for renewed retaliation.
If you and the agency fail to settle, you can then seek relief through the investigative process described above.
Given the large backlog of cases due to OSC’s limited resources, mediation can be a good option. As always, however, we strongly advise that you speak with an experienced attorney before moving forward.
The MSPB also has a mediation program, as well as a settlement judge program.
A Note on Relief and the Courts
Federal civil-service-employee whistleblowers are now the only major sector of the workforce who are not able to enforce their legal rights before a jury in federal court.
Although whistleblowers can eventually appeal MSPB decisions to a federal appeals court, those appeals are not fact-finding proceedings tried in front of a jury, but arguments about the law’s interpretation and the adequacy of MSPB proceedings heard by appellate judges appointed by the president with advice and consent of the Senate. As a result, federal-employee whistleblower-retaliation cases lack the extra layer of insulation from politics that typical jury trials would.
Recent Major Federal Whistleblower Laws
All Circuit Review Act (July 2018): Allowed whistleblowers to appeal Merit Systems Protection Board decisions to a U.S. court of appeals of jurisdiction rather than just to the federal circuit court of appeals in Washington, D.C., which has an abysmal track record for whistleblowers.316
Whistleblower Protection Coordination Act(June 2018):Created the position of whistleblower coordinator within each federal inspector general office, and requires the Council of the Inspectors General on Integrity and Efficiency (CIGIE)317to issue best practices on how IGs should communicate and work with whistleblowers.318
Follow the Rules Act (June 2017): Extended retaliation protections to employees who refuse to comply with an order that would violate a law, rule, or regulation.319
Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 (October 2017):Prohibited employers from accessing an employee’s medical records for the purpose of retaliating against the employee; required an agency head to propose disciplinary measures when an agency supervisor is found through an initial OSC or inspector general investigative ruling, or an AJ’s initial decision, to have committed a prohibited personnel practice; required the agency head to report whenever an employee dies by suicide after making a disclosure and having a prohibited personnel action taken against them; and required the head of an agency to ensure that new employees are trained on their whistleblower rights, the roles of the Office of Special Counsel and the Merit Systems Protection Board, and the process for making a lawful disclosure.320
FBI Whistleblower Protection Enhancement Act of 2016(December 2016): Expanded the list of officials to whom FBI employees may make a protected disclosure, to include their supervisors or someone within their managerial chain of command.321
Act to Enhance Whistleblower Protection for Contractor and Grantee Employees (December 2016): Permanently extended retaliation protections to personal service contractors, grantees, and sub-grantees.322
Whistleblower Protection Enhancement Act of 2012 (November 2012):Extended whistleblower protections for non-intelligence community civil-service employees by protecting disclosures made to supervisors regardless of whether the information had been previously disclosed, despite the employee’s motives for making the disclosure, whether or not the disclosure was in writing, and regardless of the amount of time that passed between the event and the disclosure. It also included provisions allowing government employees to blow the whistle on censorship or suppression of their peer-reviewed research, codified protections against Nondisclosure Agreements and other gag orders or policies; and began the whistleblower-coordinator and appellate-review pilot programs that were later made permanent in the All Circuits Review Act and Whistleblower Protection Coordination Act.323
Protections for Contractors and Other Federal Employees
The Whistleblower Protection Act excludes a large cross section of the federal workforce, including employees of private companies that contract with the federal government, employees of intelligence agencies, and members of the military.
Even if you are not a “covered” employee under the Whistleblower Protection Act, though, there are unique whistleblower laws for contractors, intelligence community employees and members of the military that could protect you from retaliation. There is a collection of statutory and regulatory rules and protections that dictate the whistleblowing options for those sectors.
Federal Contractors and Grantees
Many federal agencies utilize contract workers—individuals who are employed by companies that contract with the federal government to perform certain jobs. Contractors and recipients of federal grants are covered under a separate law that aims to encourage employees who work for contractors or grantees that are defrauding the federal government to blow the whistle.
If you are an employee of a government contractor, subcontractor, grantee, or subgrantee, the laws protecting you from retaliation dictate that your employer can’t retaliate against you if you blow the whistle on:
- Gross mismanagement of a federal grant or contract
- Gross waste of federal funds
- An abuse of authority relating to a general contract or grant
- A substantial and specific danger to public health or safety
- A violation of law, rule, or regulation related to a federal contract or grant324
If you make a protected disclosure under these laws and experience retaliation, you can file a claim with the inspector general overseeing the agency administering your organization’s grant or contract. You must file that claim within three years of the date of the retaliation. After filing, the inspector general must investigate and submit a report of the findings to you, your employer, and the head of the agency. The head of the agency must then decide if there is sufficient basis to find retaliation.
After reviewing the IG’s report, if the agency head finds that your employer retaliated against you, the agency head must then order your employer to take specific corrective action. If the agency head finds that retaliation didn’t occur, or if they fail make a finding one way or the other within 210 days, you can take your case to federal court with the option of a jury trial, and can use the IG’s investigative findings as evidence.
Interestingly, this law gives contractor and grantee employees stronger protections than federal civil service employees, who don’t have the option of requesting a jury trial.
Note that this law does not protect federal contractors working in the intelligence community. Their protections are discussed below.
If you are a federal or contractor employee working in one of the 17 “elements” of the Intelligence Community (IC), you are excluded from protection under the Whistleblower Protection Act. However, depending on your position within the IC and what, exactly, you’re disclosing, you can claim protection from retaliation under a patchwork of laws and directives.328
Importantly, IC whistleblower protections under this patchwork only apply to disclosures made to very specific audiences. So, unlike non-IC federal whistleblowers, IC whistleblowers can’t make disclosures to the press or advocacy groups and claim retaliation protection under the law.329
Moreover, while many of the laws covering the IC create rights against retaliation, enforcement of those rights is usually left to the IC’s opaque internal review processes rather than to an independent adjudicator like the MSPB. As a result, while you might have rights on paper that protect you from retaliation, those rights are only enforced sporadically in practice—and implementation of the enforcement mechanisms vary widely across the IC.
Congress has passed several laws over the years making it illegal to retaliate against IC whistleblowers. Specifically, the Intelligence Authorization Acts of Fiscal Year 2010 and 2014 were significant leaps forward, creating an inspector general for the intelligence community and making it unlawful to retaliate against IC employees for making protected whistleblowing disclosures, respectively.330
Under the overarching law prohibiting whistleblower retaliation, it is illegal to retaliate against a covered IC employee by taking or failing to take certain personnel actions against the employee as reprisal for their lawful whistleblowing disclosures. 331
Covered disclosures under law are those made to:
- The Director of National Intelligence
- The Inspector General of the Intelligence Community
- The head of the employing agency
- The inspector general of the employing agency
- A Congressional intelligence committee, or a Member of a Congressional intelligence committee
The employee must make their disclosure with a reasonable belief that the information they’re providing evidences a violation of any federal law, rule, or regulation; mismanagement;332a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.333
Unfortunately, the law doesn’t provide actual mechanisms to enforce these rights. This means that until Congress modifies that law to provide for enforcement within the statute, IC whistleblowers must rely on agency policies and presidential directives for enforcement of their rights.
The main mechanism for enforcing your rights as an IC whistleblower is Presidential Policy Directive-19 (PPD-19). Created by President Obama in 2012, PPD-19 lays out general enforcement mechanisms protecting IC employees from retaliation for making protected disclosures and requires each IC element to create a more specific process within their own agency.336
PPD-19 is broken into several sections. Section A prohibits retaliation against covered employees for making protected disclosures and provides a method of enforcement through review by an inspector General. Section B outlines protections for retaliatory clearance revocation, and Section C creates a three-inspector-general panel to hear appeals from those covered under Sections A and B.
Part A of PPD-19 prohibits retaliation against whistleblowing disclosures and establishes a review process but excludes certain IC employees. It won’t protect you if you are an FBI employee, and it does not mention protections for you if you are a contractor employee or a member of the armed services working for an IC element.337
The review process created in section A requires your corresponding agency inspector general to investigate and to make a recommendation of corrective action to your agency head, who can choose whether or not to follow the inspector general’s recommendation. The Intelligence Community Inspector General can also conduct the initial investigation, but typically delegates that authority to the corresponding agency’s IG.
If you don’t agree with the decision reached by the inspector general’s initial review, PPD-19 section C allows you to file a request for review with the Intelligence Community Inspector General. The Intelligence Community Inspector General can choose to set up an external review panel made up of the Intelligence Community Inspector General and two other federal inspectors general to review the agency head’s decision.
The review panel must complete their review within 180 days. Once the review panel reaches a decision and recommends corrective action, it sends its recommendation back to the agency head. Implementation of the panel’s recommendation is never guaranteed, however, and is left to the agency head’s discretion.
It isn’t clear how well the PPD-19 program is working for IC whistleblowers. It’s possible that section C’s secondary review by the panel of three federal IGs could effectively put more pressure on an agency head to take the retaliation claim seriously.
Nevertheless, the absence of a more independent review process renders it deficient.
Importantly, because PPD-19 and the agency policies created under its mandate are not laws passed by Congress, they could be revoked by any sitting president at any time without approval by Congress.
Also, Section A of PPD-19 does not expressly protect IC contractor, subcontractor, grantee, subgrantee, or personal services contractor employees, although the Obama Administration interpreted Section B to cover retaliatory security clearance actions against them (security clearance protections will be discussed later in the chapter).
This means that if you are a covered IC contractor employee who blows the whistle, while you are technically protected from retaliation under the law, you are not explicitly entitled to enforcement under PPD-19 as of this writing. The effect of this, we fear, is that IC contractor whistleblowers may feel empowered to come forward but won’t get a fair review of their claim if they are retaliated against. Be wary of this and other “Trojan horse” whistleblower protection laws that outlaw retaliation but offer no process for recourse.
Of course, it’s possible that individual agencies could choose to extend IC whistleblower protections to contractors under their own policies. But unless PPD-19 is amended to explicitly include contractors, there is no IC-wide mechanism to enforce your statutory protection against retaliation.
The takeaway as an intelligence community whistleblower should be that while there are protections you can point to in law, the main enforcement mechanism, PPD-19 Section A, only covers certain employees and isn’t a law created by Congress.
Proceed with great caution, and consult with your attorney, if you have one, at every step.338
For further reading, the Intelligence Community Inspector General maintains a helpful guide on IC whistleblowing on its website.339
FBI whistleblowers have protections, but despite recent improvements, they are still much weaker than the protections for most of the rest of the federal civilian workforce.
When Congress passed the Civil Service Reform Act of 1978, the FBI convinced Members to omit statutory rights in favor of requiring the Bureau to issue regulations creating equivalent protections for its employees.340But the FBI failed to issue any until 1998.341
In December 2016, Congress passed into law improvements to FBI whistleblower protections.342The law expanded the number of protected channels FBI employees can make their disclosures to after the Government Accountability Office found that nearly a third of retaliation complaints it examined were dismissed because FBI employees made disclosures to someone in their chain of command not designated to receive the disclosure.343
The protected audiences now include supervisors in an employee’s “direct chain of command” up to the FBI director and the attorney general, Congress, the Justice Department’s Office Inspector General and Office of Professional Responsibility, the FBI’s Office of Professional Responsibility, the FBI Inspection Division, the Office of Special Counsel, and anyone designated by the above offices and persons to receive disclosures.344
If you face retaliation, the first step in the FBI process is to file a claim in writing to either the Justice Department’s Office of Inspector General or the Department’s Office of Professional Responsibility.345
The burdens of proof considered in an FBI whistleblower retaliation case are similar to those in federal civilian cases. If, by a preponderance of evidence standard, you prove that your disclosure “was a contributing factor in the FBI’s decision to take or fail to take, or threaten to take or fail to take, a personnel action” against you, then the FBI must show—under the higher clear and convincing standard—that it would have taken that action absent your disclosure.346
If the Justice Department’s Inspector General or Office of Professional Responsibility closes your case or 120 days have passed since you filed a claim with those offices, you can file a request for correction action with the Department’s Office of Attorney Recruitment and Management.347You can request a stay—or temporary block—of a pending adverse personnel action, and the director of the Office must rule on that request within 10 business days. The Office can also hold a hearing on the evidence in your case.
However, this process is not as independent for the one for most other federal civilians. It is presided over by an office within the department, ruling on that department’s actions. This is in contrast to Merit Systems Protection Board, where most federal civilians can have their retaliation claims heard. The MSPB is independent of the agencies whose actions it is reviewing.
Furthermore, Office of Attorney Recruitment and Management does not publish its decisions, unlike the MSPB.348This means you cannot review how other cases, possibly with similar facts as yours, fared before Office.349
Military Whistleblower Protections
The Military Whistleblower Protection Act makes it illegal to restrict a service member from making lawful communications to Congress or an inspector general.352More specifically, it protects you, as a service member, when you make or prepare to make whistleblowing disclosures to a Member of Congress; an Inspector General; a member of a Defense Department audit, investigation, or law enforcement organization; or a person in your chain of command.353
Protected disclosures communicate information concerning:
- A violation of law or regulation, including a law or regulation prohibiting rape, sexual assault, or other sexual misconduct in violation of the Uniform Code of Military Justice, sexual harassment or unlawful discrimination354
- Gross mismanagement
- A gross waste of funds
- Abuse of authority
- A substantial and specific danger to public health or safety
- Certain threats by another member of the armed forces or employee of the federal government355
Once you’ve made a protected disclosure, it’s unlawful for anyone with authority to:
- Threaten to take any unfavorable action
- Withhold or threaten to withhold any favorable action
- Make or threaten to make a significant change to your duties or responsibilities that would not be commensurate with your rank
- Fail to respond, as a superior, to any claim of retaliatory action or harassment (where the superior had knowledge of the claim)
- Conduct a retaliatory investigation against a service member356
The burden of proof is placed differently in military whistleblower retaliation cases than it is in civilian cases. Military whistleblowers must prove that they were illegally retaliated against, whereas in civilian cases the agency must prove that they did not retaliate.357
Retaliation claims under this law must be filed with the Defense Department Inspector General (or, for the Coast Guard, the Inspector General for the Department of Homeland Security), or the inspector general for the relevant branch of the military. Once the claim is received, the IG must investigate it “expeditiously” under law.362
Importantly, there is a statute of limitations for retaliation claims: the IG is only required to investigate a claim of retaliation if you file that claim within one year of when you first learned about the prohibited retaliation.
In the course of investigating the retaliation claim, the IG must also investigate your underlying disclosure of misconduct if an investigation isn’t already taking place, or if the investigation is inadequate.363
Within 180 days, the IG must report the status of your retaliation claim to you, to the secretary of defense, and the secretary of the relevant military branch. The IG must continue to send updates every 180 days until the investigation is complete.364
As the IG begins to investigate your retaliation claim, it can choose to make a “preliminary finding” in order to stall an adverse action against you pending the full investigation. If the IG makes a preliminary finding that it is more likely than not that prohibited retaliation occurred and will result in an immediate hardship to you, the IG must immediately notify the head of the military branch concerned. At that time, the secretary of that branch can choose to “stay”—temporarily suspend—the personnel action, pending the final results of the IG investigation.365
After investigating your retaliation claim and, where applicable, your underlying disclosure, the inspector general must send a detailed report outlining its findings to the secretary of defense, the secretary of the relevant branch of the military, and to you.366
Within 30 days of receiving the IG’s report, the secretary of the relevant military branch must determine whether or not to take corrective or disciplinary action. If the secretary decides to move forward with corrective or disciplinary action, it’s up to the individual secretary to carry that out and to work with the board that corrects military records to ensure that your service record reflects the secretary’s decision.
If the IG’s report concluded that you were retaliated against, the deciding secretary must report back to the IG on whether they will take disciplinary or corrective action.367
If the secretary decides that your claim doesn’t warrant corrective or disciplinary action, they must report that decision to the secretary of defense.368
In addition to this review process on retaliation, there may be a secondary investigation by a statutory board that corrects military records through which a service member can request a formal correction to their record. That board reviews the IG’s report, can ask for further evidence, and can hold a full evidentiary hearing on the matter. Unfortunately, this due process option is discretionary, and in practice has been dormant.
If you are unsatisfied with the final decision of the branch secretary, you can take your case to the secretary of defense, who must decide whether to overturn or uphold the military branch secretary’s decision within 90 days of receiving the whistleblower’s case.369
Note that substantiation rates for military whistleblowers are abysmally low, approximately three percent in any given year,370and the DoD IG has yet to exercise its stay authority, according to a spokesperson for that office.371
What About the First Amendment?
In an ideal world, whistleblowers would never need to make use of the laws protecting them from retaliation. But it’s better to be prepared when going up against agency cultural norms of covering up wrongdoing and punishing anyone who pushes back.
The constitutional freedom of speech is often considered the bedrock of our democracy, protecting diverse ideas and ideologies. For that reason, the First Amendment may be the first protection many whistleblowers want to rely on when facing undue retaliation. But it’s more complicated than that.
What we think of as freedom of speech comes from a clause in the First Amendment: “Congress shall make no law…abridging freedom of speech.” The Supreme Court has considered whistleblower rights in the context of the First Amendment a handful of times.
In the 1968 landmark case of Pickering v. Board of Education,378 Marvin Pickering, a teacher, had written a letter to a local newspaper criticizing the Township Board of Education in Will County, Illinois, for what he felt was an improper use of funds. The board fired Pickering in response, claiming that the letter was detrimental to their ability to efficiently operate the school system. Pickering appealed, claiming that the board violated his First Amendment rights.
The Court ruled in favor of Pickering and established a legal precedent that public employees are protected from retaliatory termination when exposing matters of public concern. Those rights are highly difficult to enforce. The public employee first must demonstrate that the speech was on a matter of public concern, and if so that the public benefits outweigh the disruption to agency operations. Then, the employee must prove that retaliation was a “predominant motivating factor” in the action, after which the employer still can win by proving only through a preponderance of the evidence that it would have taken the same action for independent reasons.379
Following the Supreme Court’s decision in Bivens v. Six Unknown Agents,380whistleblowers could sue for damages in federal court, and request a jury trial.
In Bush v. Lucas,381 however, the Court removed that option for federal employees. It held that since the Civil Service Reform Act established a comprehensive system for remedying retaliation, federal employees must use that system instead of making a constitutional claim. Federal employees now can only challenge constitutional violations through that law’s administrative remedies as a prohibited personnel practice.382
Finally, in the 2006 case Garcetti v. Ceballos,383 the Court ruled that for a government employee’s speech to be protected by the First Amendment, the employee must be speaking as a private citizen, and not as a part of the employee’s official duties.
None of these court decisions are provided here to say that it’s impossible to get judicial relief as a whistleblower experiencing retaliation, just that it’s more difficult than most might think to make a First Amendment free-speech claim as a whistleblower facing retaliation.
Because of the precedent that the Supreme Court established through these cases, rather than seeking relief through the First Amendment, attorneys representing federal employee whistleblowers typically must look first to statutory whistleblower protections when they are fighting agency retaliation. State and local employees still can seek jury trials and compensatory damages through the Civil Rights Act of 1871.388
Courtroom Drama: Lawsuits Filed Against Agencies
It is not uncommon for citizen groups to sue an agency on the very issue over which some of the agency’s own internal specialists are blowing the whistle. These situations can be extremely delicate for the internal specialists at the agency, particularly if the citizen group suing the agency is doing so largely based upon a specialist’s internal dissent.
If you are called as an agency employee witness in litigation to testify about your area of expertise, work product, or knowledge of agency-related matters, you must either be subpoenaed or given permission to testify by agency supervisors. Unless disclosing information protected by whistleblower statutes, you can be fired for testifying about internal matters unless you have the agency’s permission or are acting pursuant to a subpoena.
Lawyers employed within an agency are among the first to be involved in a disputed matter. They enter the scene while the issue is still at the agency level and has not yet gone into litigation. Usually, they also know the agency’s weak points and internal analysis of the problem. They have immediate access to most types of agency information.
The agency lawyer does not represent agency whistleblowers and anything told to them can be relayed up the chain of command. The agency’s managers closely direct the lawyers’ work and greatly influence how agency lawyers handle matters. Ultimately, agency management has control over a government lawyer’s continued employment. This can be a difficult situation for an agency lawyer who favors a whistleblower’s position.
Once a lawsuit reaches federal court through an appeal, however, the agency is usually compelled to turn the matter over to lawyers in the Department of Justice (DOJ). The DOJ lawyers do not report to the agency management, but handle the case on the agency’s behalf generally with assistance from agency counsel. They have their own separate chain of command and handle many separate agency matters.
Their client is the United States government, and they do not have loyalty to a particular agency’s political agendas, governing regulations, financial concerns, or mission. Their continued employment with the government usually is not dependent on pleasing a specific agency’s managers. These DOJ lawyers usually want to win the litigation or settle it quietly. Further, they want to conduct the process in such a fashion that they do not embarrass themselves in court or anger the judge. This is especially true in a court where the lawyer appears often. They do not want their names associated with scandal, big losses, or publicly disclosed government misconduct.
Even if the DOJ lawyer is friendly to your cause, there are ethical rules that control any interaction between you and a government lawyer. If the lawyer has been directly involved in representing the agency on the matter, the whistleblower should not expect the lawyer to meet with them privately, give them confidential agency documents, breach attorney-client privilege, or sabotage the agency’s defense in any overt fashion. Their ethical duty requires them to vigorously represent their client’s position and place it above their personal feelings.
Any government lawyer who violates the ethics rules governing their representation of the agency is subject to being fired and disbarred from the practice of law. If you find a friendly government lawyer, you must be especially careful not to put them into a conflicted position or take advantage of their private position on a case.
Not every government lawyer involved in the litigation process is equal, but all are working to represent the agency. Likewise, attorneys representing the citizen group suing the agency also have a unique agenda and are representing their clients, not the whistleblower whose disclosures their case is based on.
For this reason (among many others) you should always work with your own attorney whose only agenda is protecting and upholding your rights as a whistleblower.
“I didn't like whistleblowing, because I was simply doing my job.”— Bunnatine Greenhouse, Pentagon Whistleblower
While this guide issues many dire warnings about the dangers of blowing the whistle, it should in no way dissuade you from following your conscience and your desire to make the world a better place.
Frank Serpico, who revealed rampant corruption inside the New York Police Department in the 1970s, prefers the term “lamp lighters” to “whistleblowers.” “It's the lamplight that shines on corruption, injustice, ineptitude and abuse of power,” as he wrote in the foreword to the first edition of this book. “I shudder at the thought of living in a country without lamp lighters to ignite the torch of liberty as a beacon, welcoming the assembly of freedom-loving people.”
This guide is meant to help you shine a light on problems adversely affecting the public and minimize potential harm to your career and life.
If you decide to become a whistleblower, you will be joining an elite group of people distinguished by their exceptional moral character and their commitment to public justice. The viability of our democracy depends in large part upon this small group of people who are willing to challenge corruption by speaking out about government deception.
“Sometimes blowing the whistle is how public servants can best serve the public.”
Sometimes blowing the whistle is how public servants can best serve the public, despite the negative connotation the word “whistleblower” has in the minds of many.389 Indeed, most whistleblowing information comers from those are just trying to serve the public by doing their jobs without sacrificing their professional integrity. As Bunnatine Greenhouse, a former senior Pentagon acquisition official who blew the whistle on no-bid military contracts awarded to Halliburton, said during a television interview, “We can’t let a term like whistleblower override the fact that when we take oath for office, when we become public servants, that we have responsibility and accountability for the jobs that we are supposed to do.”390
Knowing the risks involved in whistleblowing and managing those risks effectively can be a challenge. The Project On Government Oversight, Government Accountability Project, and Public Employees for Environmental Responsibility are available to help you manage that process.
Over the years, working with public employees who “commit truth” has been a great honor for the three organizations authoring this guide. We dedicate this guide to the whistleblowers we have known throughout the years—to their sacrifice, their incredible accomplishments, and their legacy of ethical government stewardship.