Defective by Design

There is a story about Diogenes that he was sometimes seen begging alms from statues. When asked why, he explained that it was to train himself to be refused. National security whistleblowers seeking protection under existing statutes should similarly prepare themselves to come away empty handed.

The events of “Ukrainegate” highlighted for the general public some of the absurdities of the official whistleblowing channels, but some might conclude that the system ultimately worked because the Inspector General’s office has respected the whistleblower’s anonymity, and because the complaint eventually was delivered to Congress. We should always be careful though not to draw the wrong lessons from history. The experience of the Ukraine call whistleblower is more exception than rule.

The Intelligence Community Whistleblower Protection Act (ICWPA) is defective by design. Instead of allowing whistleblower complaints to go directly to Congress, it needlessly specifies that the complaint be delivered by the Director of National Intelligence. Effectively, this serves as an opportunity for the White House to catch and kill complaints, as the DNI attempted to do in the Ukraine case when he illegally sat on the complaint while he conferred with the president. One of the awkward ironies for advocates of internal channels is that they might not have functioned were it not for the kind of leaks they regularly decry. DNI Joseph Maguire might have been able to quash the complaint if the existence and the contents of it hadn’t been leaked to the press and ignited intense public pressure to release it to Congress.

And while the ICWPA nominally forbids identifying or retaliating against the whistleblower, it specifies no remedy, leaving enforcement up to the sole discretion of the president. It should not surprise us then, that an Inspector General has never been disciplined for outing a whistleblower.

In 2005, when The New York Times revealed the Bush administration’s illegal surveillance dragnet, a furious Dick Cheney ordered the source to be found. The NSA Inspector General, who had received an anonymous whistleblower complaint about the program from Thomas Drake, decided to offer up Drake’s identity to the Department of Justice for criminal investigation. Drake should have been entitled to anonymity. He had done nothing wrong, he had followed the rules of the internal process carefully, and the IG had found his complaint to have a credible basis. Yet to this day no one has been held accountable for betraying his confidentiality.

If a whistleblower does talk directly to Congress they might find a less than neutral audience, as Jeffrey Sterling did when he attempted to raise concerns about a dangerously flawed CIA covert operation to a Senate intelligence committee and realized the staffer handling his complaint had previously worked at the CIA. His complaint went nowhere.

Even congressional staffers have not been entirely safe from retaliation for asking too many questions during the course of carrying out their oversight duties. Diane Roark, the House Intelligence Committee staffer who received complaints about warrantless surveillance from NSA whistleblowers Thomas Drake, William Binney, Ed Loomis, and Kirk Wiebe, was also targeted by the criminal probe after she pursued the matter too diligently. And, as dramatized in the recently released film The Report, Senate Staffer Daniel J. Jones was himself referred by the CIA for criminal investigation because he had found a damning document as he compiled the Senate Torture Report; a document that proved the Bush and Obama administrations had lied to Congress and to the public.

It is too soon to conclude that the system has protected the Ukraine call whistleblower. The wheels of retaliation can take years to spin up against their target. Drone whistleblower Daniel Hale was under investigation for five years before being indicted on Espionage Act charges. True, if President Trump or his allies retaliated against the whistleblower now it would generate a firestorm in response, but what happens when the news cycle moves on? And what assurance is this for more obscure whistleblowers? It is rare for the news cycle and the politics of the moment to align in the whistleblower’s favor. We have seen such a firestorm only for one such whistleblower —Thomas Drake—and not until he was facing a spurious Espionage Act indictment, and even then only after our fervent media campaign on his behalf.

Patrick Eddington lays out a well-designed proposal for reform. I would only add that we should not limit our scope to the official channels themselves. We must fight the criminalization of truth-telling—most chillingly through the World War I–era Espionage Act— and ultimately defend the right of government employees to speak to the press.

The revived use of the Espionage Act has always been a backdoor war on the press. The government won an espionage conviction against Jeffrey Sterling merely by showing metadata indicating he had spoken with a reporter. National security whistleblowers cannot feel safe as long as it is on the books, and increasingly, journalists have reason to worry too.

If we are only fighting to reform the internal channels, we have ceded too much ground. Robust investigative reporting helps ensure that whistleblowers can report safely and be taken seriously. Internal channels will never be safe or effective if the government knows it can use the apparatus of national security to chill the press. As much as possible, we should insist that government officials perform their assigned functions more like Diogenes performed his bodily functions: out in the open.

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.