Edward Snowden is a controversial figure. Some say he’s a leaker who threatened U.S. national security, while others call him the most notorious whistleblower since Daniel Ellsberg. Either way, the media circus surrounding his leaks has once again brought the question of how the U.S. government responds to whistleblowers into the spotlight.
The first recorded U.S. government whistleblowers were ten marines and sailors in 1777 who blew the whistle on the commander-in-chief of the Continental Navy for torturing British POWs. This incident led to the enactment of the whistleblower protection law in 1778 which established that it was “the duty of all persons in the service of the United States” to give information to the U.S. government concerning “misconduct, frauds, or misdemeanors committed by any officers or persons in the service of these states.” When two of the whistleblowers were slapped with libel suits, the Continental Congress paid their legal fees and released all documents concerning the case to ensure that the whistleblowers could fight against the charges.
Our founding fathers’ clear support of whistleblowers did not last. Federal law no longer holds that whistleblowing is the duty of civil servants. The Whistleblower Protection Act of 1989 protects informants in federal agencies from retaliatory personnel action due to disclosure but leaves open loopholes when it pertains to national security. National Security Agency and Central Intelligence Agency employees are not covered under the law, and whistleblowers who are fired for exposing the wrongdoing of national security agencies are not protected in federal court.
According to the law, there are a number of “independent” federal agencies that protect the interests of whistleblowers. The Office of Special Counsel investigates the complaints, the Merit Systems Protection Board adjudicates, and the Court of Appeals for the Federal Circuit handles appeals.
These agencies present several problems. President Obama only appointed special counsel in 2011, so, from 2008 to 2011, there was no attorney’s office responsible for protecting whistleblowers. The Merit Systems Protection Board and the Court of Appeals for the Federal Circuit consistently rule against claimants and have been criticized by Congress. Even though these agencies were created to assist whistleblowers and prevent their persecution, they are doing the exact opposite.
Along with these agencies’ failure to perform their duties, the treatment of whistleblowers demonstrates the flaws of the law.
Robert J. McCarthy, a Field Solicitor for the U.S. Department of the Interior, reported abuse by the International Boundary and Water Commission on the U.S.-Mexico border. Even though federal law promised protection, he was fired for his actions.
Sibel Edwards, an FBI translator, was fired for trying to report FBI cover-ups. She was gagged under the State Secrets Privilege, which allows the exclusion of evidence that touches on matters of national security.
Edwards and McCarthy are prime examples of how the U.S. government has treated whistleblowers in the past decade. Bureaucracies have a tendency to be wasteful, so it’s important that employees alert their superiors to such issues. (https://aaronkirman.com/)
The Administration’s unswerving policy of gagging whistleblowers, particularly those who expose national security agencies’ unchecked power, creates an environment where employees will simply watch abuses happen.
Whistleblowers acting in the interest of the U.S. government should not be treated like criminals by fellow citizens.
The Obama administration should ensure that the agencies tasked with helping whistleblowers are independent bodies, which would allow them to do their jobs without pressure from the government. Additionally, every federal agency should work to foster a culture in which whistleblowing is accepted. Federal employees should be able to pick up the phone to the Office of Special Counsel and report instances of fraud or mismanagement without fear of retribution.
The government should keep certain things confidential due to the potential threat to national security. At the same time, creating an avenue for whistleblowers prevents leaks by making them unnecessary. If potential whistleblowers feel their superiors will respond to their claims adequately, they are less likely to seek a public reaction.
Whistleblowing was critical in the early days of this country, and members of Congress and officials in the Administration often hearken back to the ideals and values of the founding fathers. It’s time they start listening to them.
