Diogenes’s Legacy: Whistleblowing in the Modern Age

There is no record from antiquity telling us whether or not the great Cynic philosopher, Diogenes, ever found his “one honest man (or woman)” in ancient Athens. What we do know is that America’s Founders, inspired by ancient Greek and Roman philosophers and governmental models, placed a high value on fidelity to truth and honest governance.

In response to a scandal involving the mistreatment of captured British sailors by Continental Navy Captain Esek Hopkins, the Continental Congress passed what could rightly be called the first “whistleblower” statute on July 30, 1778. The language of the statute is plain:

Resolved, That it is the duty of all persons in the service of the United States, as well as all other the inhabitants thereof, to give the earliest information to Congress or other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.

In essence those who accused Hopkins of what today would be treated as war crimes were relying on what would become, in the period after the ratification of the Constitution, a First Amendment defense for exposing wrongdoing by government officials. Journalist Tom Mueller, in his book Crisis of Conscience: Whistleblowing in an Age of Fraud, notes that this would be the standard defense of de facto whistleblowers into the Vietnam War era. “By 1968,” Mueller writes, “public servants who discovered wrongdoing at their jobs and were silenced by superiors could rely on a powerful First Amendment defense.”

In fact, from the birth of the modern American national security state in World War I, publishers and journalists—perhaps the most ubiquitous kinds of “whistleblowers”—would rarely find the Bill of Rights a defense in the face of a federal judiciary willing to take the Executive branch’s word that calamitous national harm would follow the publication of alleged secrets.

The seminal case involved former RAND analyst and Marine Corps Vietnam veteran Daniel Ellsberg, who in 1971 gave the entire 7,000 pages of what would become known as the Pentagon Papers to the New York Times and 18 other newspapers. A vengeful President Richard Nixon sought to have Ellsberg hunted down and tried for treason for exposing decades of federal government lies about the reasons for and prospects of winning the Vietnam War.

As Ellsberg noted in his 2003 memoir, Secrets: A Memoir of Vietnam and the Pentagon Papers,

Eventually, I faced twelve felony charges totaling a possible 115 years in prison, with the prospect of several further trials for me beyond the first one…This truth telling set in motion a chain of events, including criminal White House efforts to silence or incapacitate me that led to the dismissal of the charges against me and my codefendant. Much more important, these particular Oval Office crimes helped topple the president, an act that was crucial to ending the war. (Secrets, pp. xii-xiii)

While the 1778 Continental Congress statute exhorting government employees to report waste, fraud, abuse, or criminal conduct may have seemed like an invitation to whistleblowers, the reality is that other laws passed long after—the 1917 Espionage Act above all—made it a crime to disclose government secrets, even if the secrecy was used to conceal malfeasance, criminal conduct, or policy stupidity. There was no “public interest” defense for whistleblowing written into any statute then, and there is still none today.

What does exist is a patchwork of laws that provide national security whistleblowers with limited, and monitored, channels to report abuse or evade retaliation. This is especially true for Intelligence Community (IC) whistleblowers, a topic that has received considerable fresh scrutiny in the ongoing “Ukrainegate” episode involving (as of this writing) the still-anonymous IC whistleblower’s complaint about potential illegal acts committed by President Trump and members of his administration.

IC Whistleblower Protections: The Legal Landscape

It was only in 1998 that Congress passed the first law to specifically deal with IC whistleblower complaints: The Intelligence Community Whistleblower Protection Act (ICWPA). The ICWPA applied only to CIA employees, required those seeking to report an “urgent concern” to go through the CIA IG first, and, if dissatisfied with the IG response, they could only go to Congress after telling the Director of the CIA that they intended to do so. Such a system guaranteed the exposure of the whistleblower, thus inviting potential reprisals by those accused.

Over a decade would pass before Congress would enact any meaningful protections for IC whistleblowers generally. The FY 2010 Intelligence Authorization Act (Public Law 111-259) created the Inspector General of the Intelligence Community (IC IG) to investigate whistleblower complaints. Moreover, Section 103H(g)(3)(A) states

the Inspector General shall not disclose the identity of the employee without the consent of the employee, unless the Inspector General determines that such disclosure is unavoidable during the course of the investigation or the disclosure is made to an official of the Department of Justice responsible for determining whether a prosecution should be undertaken;

And regarding attempts to retaliate against an IC whistleblower, Section 103H(g)(3)(B) states

no action constituting a reprisal, or threat of reprisal, for making such complaint or disclosing such information to the Inspector General may be taken by any employee in a position to take such actions, unless the complaint was made or the information was disclosed with the knowledge that it was false or with willful disregard for its truth or falsity.

Let’s look at the weaknesses in these alleged protections.`

First, the statute only bars the IC IG from revealing a whistleblower’s identity. To take the “Ukrainegate” whistleblower case as our real-world example, if President Trump were to learn the true identity of the whistleblower, he could reveal it without violating the law. As written, only the IC IG or a member of the IC IG staff could be prosecuted for improperly revealing a whistleblower’s identity.

Regarding reprisals against a whistleblower, the protection vanishes if “the complaint was made or the information was disclosed with the knowledge that it was false or with willful disregard for its truth or falsity.”

Returning to our “Ukrainegate” whistleblower example, the IC IG long ago validated the anonymous whistleblower’s complaints, and the House Permanent Select Committee on Intelligence (HPSCI) impeachment hearings to date appear to have not only validated the complaint but expanded our knowledge base well beyond it. Even so, President Trump continues to claim the anonymous whistleblower is a liar. So could Trump overrule the IC IG and either order the whistleblower’s department or agency head to fire the whistleblower, or even directly fire the whistleblower himself?

To the first question, the answer is a clear no.

The Intelligence Authorization Act for FY 2014 (Public Law 113-126), Section 601 states in relevant part

Any employee of an agency who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take a personnel action with respect to any employee of a covered intelligence community element as a reprisal for a lawful disclosure of information by the employee to the Director of National Intelligence (or an employee designated by the Director of National Intelligence for such purpose), the Inspector General of the Intelligence Community, the head of the employing agency (or an employee designated by the head of that agency for such purpose), the appropriate inspector general of the employing agency, a congressional intelligence committee, or a member of a congressional intelligence committee…

Thus, if Trump ordered the IC agency head of the component where the whistleblower works to fire him/her, carrying out such a Trump order would be a clear violation of the law. If the agency head refused to carry out Trump’s order, citing PL 113-126 as the basis for refusal, could Trump then fire the IC agency head and fire the whistleblower himself?

As the whistleblower in question is an IC employee, most of whom are part of the federal “excepted service” hiring track (which has fewer protections and appeal rights than competitive civil service appointment positions), in theory the answer very well might be yes.

The question would turn on whether the head of the HR department in the IC agency employing the whistleblower would refuse Trump’s order, as that department head would also be bound by Section 601 of PL 113-126 and thus subject to prosecution should he or she terminate the whistleblower. If the head of the agency’s HR department likewise refused a Trump “fire the whistleblower” order and was also fired by Trump, he could direct the agency’s head of security to escort the whistleblower from the building, confiscate their badge, and deny them access to the building.

Clearly, any effort to fire a person for having clearly followed established law and IC IG procedures would create a media and political firestorm of epic proportions. The larger political issue is whether Trump attempting to fire the whistleblower by any means would itself then become a “high crime and misdemeanor” per the Constitution’s impeachment provision, and thus immediately become a new impeachment article to be drafted by House Democratic majority impeachment managers.

What the foregoing discussion does demonstrate is that existing IC whistleblower protections are inadequate to shield potential IC whistleblowers in the first place. So what would real IC whistleblower protections look like?

IC Whistleblower Protections: A Legislative Blueprint

What follows is a modest proposal for strengthening IC whistleblower protections in light of the lessons learned from the “Ukrainegate” episode to date, as well as my own legislative (and personal) experience dealing with whistleblower issues over the last 20+ years.

The ICWPA and its subsequent amendments should be repealed and replaced with a far simpler, and more sweeping, approach to providing whistleblowers with secure channels to submit their complaints and ironclad protections against unwarranted exposure and retaliation. The new IC whistleblower protection law should do the following:

  1. Allow prospective IC whistleblowers to go to any House or Senate member, or relevant committee, or the Government Accountability Office (GAO). IC whistleblowers should also have the option of reporting complaints to House or Senate members of their states of residence if they believe the committee of jurisdiction is too partisan or politicized to safely make their disclosure. Each House and Senate office should have not less than one staffer cleared to receive any classified information from an IC whistleblower, including complaints involving waste, fraud, abuse, mismanagement, or criminal conduct.
  2. Efforts to force IC whistleblowers to initially go through any IC inspector general (including the IC IG), or to require “agency notification” of IC whistleblower complaints to Congress, should be expressly forbidden.
  3. Any attempt by any federal official, including the President, Vice President, or Members of Congress to “out” an IC whistleblower who has, in good faith, filed a complaint lawfully would be, in the case of any elected or appointed official, deemed a “high crime or misdemeanor” and for any other civil officer of the government a felony punishable not less than 20 years in prison and not less than a $1,000,000 fine.
  4. Any IC whistleblower needing cleared, private counsel to assist them in dealing with the whistleblowing process, including any testimony before any governmental body or proceeding, would be entitled to expedited security clearance processing for the attorney, not to exceed 30 days total from the time the request for clearing of counsel is made.

Enacting legislation along the above lines would not only provide unparalleled protections for IC whistleblowers but it would also serve as a powerful deterrent to those who would seek to silence them. If the history of national security whistleblowing from Ellsberg to the present should have taught us anything, it’s that such strong protections are needed more than ever.

Also from this issue

Lead Essay

  • Patrick G. Eddington argues that we need stronger legal protections for those who expose federal wrongdoing. He starts with Greek ideals about democratic governance, and with the American Revolution, which saw what might be called the first U.S. whistleblower statute. He argues that today’s protections are insufficient, and he recommends a set of improvements for intelligence community whistleblowers in particular.

Response Essays

  • Jesselyn Radack writes that the Intelligence Community Whistleblower Protection Act (ICWPA) is purposefully harmful to those whom it supposedly protects. Because it sets up the Director of National Intelligence as a gatekeeper for whistleblower complaints, the executive branch wins a chance to review and possibly silence any possible complaints. She also condemns the recent uses of the Espionage Act as particularly dangerous for those who expose federal intelligence wrongdoings.

  • When the law doesn’t protect whistleblowers, sometimes the only choice left is to take the complaint to the public. Christopher J. Coyne looks at the role that whistleblowers play in democratic governance and how taking a complaint public might—but also might not—bring justice.