About this Issue
When a federal government employee steps forward with information about government wrongdoing, what protections should they get? Does American law do a good job of protecting such individuals? What could it do better?
Recent years have seen quite a few high-profile federal whistleblowers, including, among many others, Edward Snowden, Chelsea Manning, and Reality Winner. But the latter two are servingtime in prison, while the former is living in Russia and would face prosecution if he were to return to the United States. All have been called traitors, and their lives have been threatened. Anonymous whistleblowers are more and more easily exposed nowadays, and yet exposure can mean similar penalties.
Every whistleblowing case is different. The underlying wrongdoing may be of varying severity. Collateral information may be released as well, and it may be of a more or less sensitive nature. And each individual whistleblower will be a human individual, with strengths and weaknesses that may look very different when they suddenly stand in the public eye.
This month’s lead essay is by Cato’s own Patrick G. Eddington, a research fellow in homeland security and civil liberties; our response essayists will be Jesselyn Radack, director of the Whistleblower and Source Protection Program at ExposeFacts, and Professor Christopher J. Coyne of George Mason University.
Comments will also be open, and we welcome readers’ feedback through the end of the month.
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:
- 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.
- 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.
- 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.
- 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.
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.
The Role of Whistleblowers and the Importance of “Going Public”
Whistleblowers play a crucial role in democratic societies. Recognizing this function is important for fully appreciating Patrick Eddington’s call for reforms to protect whistleblowers as well as the limitations of relying on channels internal to government institutions for whistleblowers to report wrongdoing. My purpose is twofold. First, I discuss why whistleblowers are important in democracies for checking political opportunism. Second, I consider why being an effective whistleblower might involve going public and circumventing formal government channels.
Democratic politics is characterized by numerous principal-agent problems. A principal-agent problem exists whenever one person (the “agent”) is able to make a decision on behalf of another person (“the principal”). Absent incentives to align the interests of the two parties, there is the potential for agent opportunism whereby the agent pursues their own interests instead of those of the principal they are hired to represent. Citizens are principals who “hire” elected officials to serve as their agents by representing their interests in political matters. Elected officials, in turn, are also principals who hire bureaucrats as their agents to provide goods and services to their constituents. Mechanisms, such as citizen voting and congressional oversight, are intended to solve these principal-agent problems by aligning incentives. But a large literature in public choice has highlighted various frictions that limit their effectiveness.
In order to punish elected officials for engaging in narrow opportunism, voters must possess information about their wrongdoing. The issue is that acquiring the requisite information is costly. As policy becomes more complex it becomes increasingly difficult for voters to obtain the necessary information and to discern the specific role played by their representatives. This becomes even more difficult when the required information is kept secret by those in government. These factors are especially important in matters of national security and foreign policy, which are often highly nuanced and where members of the U.S. government are all too comfortable classifying information to restrict access.
Even where information is available, voters are often subject to “rational ignorance” due to the cost of obtaining information relative to the benefits. Simply put, the cost of acquiring information is positive while the benefits are often minuscule given the limited influence of a single vote on electoral outcomes. The result is widespread voter ignorance which limits the effectiveness of the voting booth as a check on political opportunism. Another issue is that each voter only receives a single vote which limits their ability to express the intensity of their dissatisfaction with elected officials. There is also the issue of the timing gap between elections, which further limits the ability of voters to punish or reward elected officials. The long delays between elections further limit the effectiveness of the voting booth as a check on political opportunism.
What about congressional oversight of bureaus? There are three issues which weaken the effectiveness of this check. The first is the aforementioned over classification of information, which limits the access to certain members of congress. Second, members of Congress often rely on the bureaus they oversee to supply information regarding their activities. The issue is that members of the bureau can control the flow of information, both in terms of content and the timing of its release, which is being used to monitor their actions. Third, members of congressional oversight committees may have the incentive to ignore wrongdoing by the bureaus they monitor. When discussing congressional oversight of the National Security Agency (NSA), James Bamford noted that “the intelligence committees are more dedicated to protecting the agencies from budget cuts than safeguarding the public from their transgressions.” Together, these factors limit the ability of congressional oversight to solve the principal-agent problem.
Within this context the role of whistleblowing is clear. Whistleblowers serve as a means of resolving the principal-agent problem in democratic politics. They do so by avoiding many of the issues facing individual voters and members of Congress. Whistleblowers have access to local and context-specific information regarding abuses of political power. Because they are embedded in the organization and have direct experience, whistleblowers have nuanced knowledge about the operations of government that outsiders—both voters and congressional members—cannot have. This direct knowledge also allows whistleblowers to circumvent the constraints created by secrecy and classification. For the same reason, whistleblowers do not suffer from issues of information control and manipulation by bureaus since they are the source of information.
Given the role of whistleblowers, how are they to report on wrongdoing? There are two methods. The first relies on formal, internal channels to report abuse. This is the focus of Patrick Eddington’s lead essay. He accurately describes the limitations, and in many instances the complete lack, of protections for whistleblowers. I agree with his call for reform. However, I would extend his discussion by emphasizing the importance of a second avenue for whistleblowing reporting—going public. This second channel involves whistleblowers reporting information to the public either directly or through a third party, such as the media. I believe this option is necessary even if Eddington’s proposed reforms were implemented. The reason is that there will still be frictions that may limit the effectiveness of formal, internal channels for reporting wrongdoing.
The normal operations of government can move extremely slowly due to bureaucratic inertia. Consider the case of Richard Levernier, who worked for the U.S. Department of Energy to identify weaknesses in plans to protect its nuclear plants from terrorist attacks. After identifying numerous weaknesses and threats through formal channels, Levernier was stripped of his security clearance and reassigned to a clerical position. It took more four years for the United States Office of Special Counsel (OSC), the independent federal agency tasked with protecting whistleblowers, to investigate and rule that the Department of Energy’s retaliation was unlawful. Perhaps a better-designed review process might have led to a faster resolution, but this case illustrates how the sluggishness of bureaucratic processes in general can delay the protection of whistleblowers even when they follow established formal rules.
In addition to inefficiencies with formal rules, there are informal norms which often discourage internal whistleblowing. As Daniel Ellsberg notes, “[t]he mystique of secrecy in the universe of national security, even beyond the formal apparatus of classification and clearances, is a compelling deterrent to whistleblowing and thus to effective resistance to gravely wrongful or dangerous policies. In this realm, telling secrets appears unpatriotic, even traitorous.” Such an insular culture limits the effectiveness of even well-designed formal rules for internal reporting by whistleblowers.
The major concern with allowing whistleblowers to go public is that they too may engage in narrowly self-interested opportunism. This is one justification used to limit public whistleblowing through severe penalties. Given the important role of whistleblowers, these penalties create a problem by discouraging both narrowly opportunistic and truthful whistleblowers from revealing information. What is needed are mechanisms which create a separation between the two categories of whistleblowers.
One set of rules is offered by Patrick Rahill who proposes a multi-factor test for courts when considering whether an act of whistleblowing was legal. This includes a consideration of intent on the part of the whistleblower, the type of information leaked, the recipient of the leaked information, and whether the leak was done in the public interest. While one could envision variations of the specific rules, the central idea is the importance of incentivizing truthful whistleblowers to go public, while discouraging those motivated by narrow self-interest. Rules which encourage truthful public whistleblowing are a complement to Patrick Eddington’s proposed reforms to formal, internal channels for whistleblowing. Together, these reforms would maximize the chances of whistleblowers serving as effective checks on political abuse and opportunism.
 For an overview of public choice see, Dennis C. Mueller, Dennis C. 2003. Public Choice III. Cambridge, MA: Cambridge University Press; Charles K. Rowley and Friedrich Schneider. 2004. The Encyclopedia of Public Choice. 2 vols. New York: Springer; Michael Reksulak, Laura Razzolini, and William F. Shughart II. 2014. The Elgar Companion to Public Choice, 2nd Edition. Northampton, MA: Edward Elgar Publishing, Inc.
 On the over classification of national security information, see Steven Aftergood. 2009. “Reducing Government Secrecy: Finding What Works,” Yale Law & Policy Review 27(2): 399-416; Elizabeth Goitein and David M. Shapiro. 2011. Reducing Overclassification Through Accountability. New York, NY: The Brennan Center for Justice at New York University School of Law.
 For a more detailed treatment of this point, see Christopher J. Coyne, Nathan Goodman, and Abigail R. Hall. 2019. “Sounding the Alarm: The Political Economy of Whistleblowing in the US Security State,” Peace Economics, Peace Science, and Public Policy, 25(1): 1-11.
 Daniel Ellsberg. 2010. “Secrecy and National Security Whistleblowing,” Social Research 77(3): 773-804.
 Patrick M. Rahill. 2014. “Top Secret—The Defense of National Security Whistleblowers:
Introducing a Multi-Factor Balancing Test,” Cleveland State Law Review 63: 237-267.
A Better Whistleblower Law
I agree with virtually all of the arguments Jess and Christopher have offered regarding the many and serious problems with existing whistleblower protection law and bureaucratic mechanisms. Both of my colleagues argue that one channel must be made safe for whistleblower disclosures—the external channel, or “going public” with allegations. Christopher cites a 2014 Cleveland State Law Review article by Patrick Rahill as providing an example of a four-factor public interest defense for a national security whistleblower who elects to go to the press versus an agency or department inspector general. I’ll summarize Rahill’s test as follows:
Whistleblower mindset: Was the leak made in good faith or in bad faith?
Type of document leaked: Was the document hiding a legitimate or illegitimate secret?
Recipient of the leak: Was it a traditional or non-traditional publisher?
The public interest: Was the leak something that the average citizen would want to know about?
While Rahill’s discussion is an interesting one from an academic perspective, I found it largely unmoored from reality, especially in light of the many cases in which department or agency IG’s have proven unwilling to pursue whistleblower claims, or where the IG itself has been demonstrably corrupt.
For a “public interest defense” to ever become a legal and politically fact in the United States, it must be built on a solid, objective legal and political foundation. The good news is that the building blocks are already available.
Executive Order 13526
EO 13526, Classified National Security Information, is the current governing order regulating what can—and cannot—be classified. For our discussion here, it is Section 1.7(a) that is relevant and the text reads as follows:
In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not require protection in the interest of the national security.
The problem is that this language is contained in an executive order, not black letter law—and because of that it can be and is trumped by statutes like the National Security Agency Act of 1959, specifically Section 6(a) which states
Except as provided in subsection (b) of this section, nothing in this Act or any other law (including, but not limited to, the first section and section 2 of the Act of August 28, 1935 (5 U.S.C. 654) (repealed by Pub. L. 86-626, title I, Sec. 101, July 12, 1960, 74 Stat. 427)) shall be construed to require the disclosure of the organization or any function of the National Security Agency, or any information with respect to the activities thereof, or of the names, titles, salaries, or number of the persons employed by such agency.
I have written elsewhere about how NSA has used this provision to try to conceal waste, fraud, abuse and even criminal conduct committed years ago from ever seeing the light of day (that FOIA lawsuit of mine is now in mediation). One way to end the problem would be to take the Section 1.7(a) language of EO 13526 and make it law, with these key changes and additions (in boldface):
Section 1. Notwithstanding any other provision of law, in no case shall information be classified, continue to be maintained as classified, fail to be declassified, or otherwise deemed not releasable to the public in order to:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not require protection in the interest of the national security; and
Section 2. Any record—whether designated a permanent or temporary record—which is inappropriately marked, designated or otherwise declared to be classified by an original classifying authority or their designee, or that is being withheld from public release under another statute, that meets any of the criteria in Section 1 shall automatically be considered illegally so designated, and the release of said illegally designated records shall be deemed in the public interest and lawful under the Constitution and the laws of the United States;
Section 3. Any release made pursuant to Section 2 must initially be made to either
- the department or agency inspector general of the department or agency against whom the allegation and related disclosure pertain; or
- the Intelligence Community Inspector General, unless the employee or contractor seeking to make such a disclosure has a good faith belief that the department or agency inspector general, or the Intelligence Community Inspector General, would not take seriously the allegation or protect the person seeking to make a disclosure; or
- a Member of Congress or Congressional committee
Section 4. Upon confirmation of the receipt of said disclosure by
- the department or agency inspector general of the department or agency against whom the allegation and related disclosure pertain; or
- the Intelligence Community Inspector General; or
- the Member of Congress or Congressional Committee;
any executive branch employee or contractor shall be held harmless for any subsequent disclosure of records inappropriately marked, designated or otherwise declared to be classified by an original classifying authority or their designee, or that is being withheld from public release under another statute, that meets any of the above criteria.
Section 5. The entity that receives a disclosure made pursuant to Section 2 shall, within 72 hours of the receipt of said disclosure, make public the fact that such a disclosure has been received, including the nature of the allegation and the department or agency involved.
Section 6. Should
- no announcement by the entity in receipt of the disclosure and complaint made pursuant to this Act be forthcoming within 15 calendar days from the date of the disclosure; or
- more than 180 days pass without the public release of the findings of any investigation conducted pursuant to a disclosure and complaint made pursuant to this act;
any executive branch employee or contractor shall be held harmless for any subsequent public disclosure of records inappropriately marked, designated or otherwise declared to be classified by an original classifying authority or their designee, or that is being withheld from public release under another statute, that meets any of the criteria in Section 1.
Thus, if the CIA were trying to hide a future torture program under the provisions of the CIA Act of 1949 (which exempts CIA operational files from disclosure under FOIA), the above language would make such an attempt illegal and its release to the press by a whistleblower a completely protected act if either the receiving IG or Congress failed to announce a public investigation within 15 days of the receipt of a disclosure. The legislative fix I’m suggesting thus neatly bypasses the need for a whistleblower “public interest defense” because the act of revealing waste, fraud, abuse or criminal conduct would itself be a clearly lawful action absent congressional action.
And what if an IG or Congress announced an investigation but slow-rolled it or otherwise tried to bury the issue? That’s why I included the language of Section 6.
If an IG or Congress failed to act and produce at least a preliminary report by 180 days after the initial disclosure, any executive branch employee or contractor—including the original whistleblower—could reveal the information to the press legally.
To be sure, a prospective national security whistleblower seeking to make a disclosure under the kind of statute proposed above would need to conduct due diligence by ensuring that their claim was thoroughly documented and tied to a specific, articulable violation of federal law or regulation. And the kind of anti-retaliation reforms I outlined in my original essay would need to be part of the overall legislative fix I’m proposing, as would a specific change in law that would instruct federal courts to give absolutely no deference to executive branch claims about disputed information being properly classified. Taken as a package, though, I think what I’m proposing might solve many of the problems that each of us have written about.