How the law barely protects whistleblowers

The Week Staff

Whistleblowers who hold public servants to account are protected by law — but they often suffer consequences anyway. Here's everything you need to know:

What's a whistleblower?
It's a government employee who reports fraud, waste, crimes, or threats to public safety. The origin of the term is uncertain, but it's probably a reference to policemen or referees who blow whistles when they see a crime or foul play. As far back as 1778, the Founding Fathers called reporting official misconduct a "duty," commending 10 sailors and Marines for alerting Congress to the Navy's abuse of British prisoners. But the term "whistleblower" wasn't applied to this kind of truth telling until the 1970s. It was during that tumultuous decade that military analyst Daniel Ellsberg disclosed the Pentagon Papers, which revealed the Vietnam War's false premises. A year later, The Washington Post broke the Watergate scandal, thanks to leaks from "Deep Throat" (who turned out to be disgruntled FBI Associate Director Mark Felt). To encourage such truth tellers to come forward, Congress passed the Whistleblower Protection Act of 1989, which outlined a process for federal employees to report misconduct and challenge retaliation they might face for doing so. Despite that law, whistleblowers often pay a steep price for reporting misdeeds by superiors, said Mandy Smithberger of the Project on Government Oversight, a nonpartisan organization. "One has to go in with the assumption," she said, "that it's career suicide."

What safeguards exist?
Federal law protects whistleblowers from being fired, demoted, or reassigned as a form of punishment. But those protections are void if whistleblowers fail to follow protocol and file their complaint through official channels — generally, with a federal agency's inspector general. Among those who did not qualify for whistleblower status are Chelsea Manning, who disclosed a massive trove of military secrets to WikiLeaks in 2010; Edward Snowden, who revealed the National Security Agency's global surveillance programs in 2013; and Reality Winner, who leaked a U.S. intelligence report about Russia's election interference efforts in 2017. Since they leaked information to the media, all were charged with crimes under the 1917 Espionage Act. That law "is blind to the difference between whistleblowers and spies," said Jameel Jaffer, head of the Knight First Amendment Institute. If indicted under the Espionage Act, an employee in the intelligence agencies is prohibited from arguing that a leak was made in the public interest.

Where does the law fall short?
Even if whistleblowers follow all procedures, their legal protection can prove to be more theoretical than real. More than one-third of government whistleblowers responding to a 2010 survey said they faced threats or punishments. "I thought what all whistleblowers think," former FBI agent Jane Turner said. "I thought, 'The truth will rescue me.'" Assigned to the World Trade Center investigation, Turner noticed a Tiffany crystal globe on a colleague's desk. After finding out that FBI employees claimed it as a "souvenir" from Ground Zero, Turner reported them. The story became a national embarrassment for the FBI, yet rather than receive pats on the back, Turner says, she was treated like a "snitch" and later fired. Last year, four high-ranking officials at the Environmental Protection Agency flagged rampant wasteful spending by their administrator, Scott Pruitt, who paid $43,000 for a soundproof phone booth for Pruitt's office. The four were reassigned, demoted, or placed on leave without pay.

What about the Ukraine whistleblower?
In August, a CIA officer working at the White House filed an official whistleblower complaint to the intelligence community's inspector about a July 25 phone call President Trump made to President Volodymyr Zelensky of Ukraine. That complaint led to the impeachment inquiry now underway in the House. In response, Trump branded the White House whistleblower a "spy," accused him of "treason," and suggested he be treated the way traitors were "in the old days." Republican defenders of the president have reportedly made an educated guess at his identity in an effort to portray him as a Democratic partisan. Under the law, the motivations of whistleblowers are irrelevant, and many do have axes to grind; what matters is whether what they report is true.

What if he's identified?
Whistleblowers are guaranteed the right to anonymity within the process, but that protection is thin. If Trump or his allies manage to figure out the identity of the whistleblower, there's no law barring them from naming him publicly. There are other loopholes in the protections as well: If Trump orders that the whistleblower be fired, the Intelligence Community Whistleblower Protection Act does not empower the inspector general to force the CIA to rehire him. In 1982, after whistleblower A. Ernest Fitzgerald sued President Richard Nixon for wrongful termination, the Supreme Court ruled 5-4 that presidents can't be sued for monetary damages, even if they've broken the law. (A dissenting opinion said the court had placed the president "above the law.") The whistleblower also won't be able to sue if he's publicly identified and suffers adverse consequences, such as damage to his career or continuing death threats. Trump's threats are "absolutely shocking," said whistleblower attorney David Colapinto. "If the identity of the whistleblower is unmasked against that person's will, then retaliation is sure to follow."

The 'SOB' fired by Nixon
A. Ernest Fitzgerald was long known as "the patron saint of government whistleblowers," or, alternatively, "the most hated man in the Air Force." A financial manager in the Air Force, Fitzgerald appeared before Congress in 1968 to discuss the purchase of a fleet of Lockheed's C-5A transport planes. Superiors told him to gloss over the rising costs of the plane, but Fitzgerald did not, informing astonished legislators the planes were running $2 billion over budget. Fitzgerald said he was merely "committing truth." In an Oval Office tape revealed later, President Nixon admitted he had instructed an aide to "get rid of that son of a bitch." Fitzgerald was stripped of his duties, sent off to study cost overruns on an Air Force bowling alley in Thailand, and finally had his position eliminated. After three years of fighting the government in court, he finally had his position reinstated. That case underscored the need for formalized whistleblower protections.

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