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Understanding the Two Types of Whistleblowers

Maybe the specter of a lawless president and the example of an insider legal whistleblower who called him out will prod Congress to start creating more protections for those who want to speak truth to power. We need more of those protections.

An open letter from more than 100 former national security officials applauds the “responsible whistleblower” who came forward with information about President Trump’s Ukraine dealings.

While the identity of the whistleblower is unknown, “we do know that he or she is an employee of the U.S. Government,” the signatories say. “As such, he or she has by law the right—and indeed the responsibility—to make known, through appropriate channels, indications of serious wrongdoing.” In other words, the obligation to disclose wrongdoing in official channels justifies protection from the law—and from the media.

“Whatever one’s view of the matters discussed in the whistleblower’s complaint,” the former officials say, “all Americans should be united in demanding that all branches of our government and all outlets of our media protect this whistleblower and his or her identity. Simply put, he or she has done what our law demands; now he or she deserves our protection.”

The idea of “responsible” whistleblowers implicitly contrasts them with other whistleblowers who don’t use those official channels, such as CIA officer John Kiriakou, NSA employee Reality Winner, U.S. Army private Chelsea Manning, and NSA systems administrator Edward Snowden. They have bypassed in-house channels in favor of taking their information straight to news outlets.

So while “whistleblowing”—calling attention to hidden offenses—is generally seen as a good thing, it actually refers to two fairly different actions. In the words of Tom Devine, legal director of the non-partisan Government Accountability Project (GAP) in Washington, there are “legal” whistleblowers and “civil disobedience” whistleblowers. “We respect both,” he said in a phone interview.

Legal whistleblowers work within the system seeking to make the government work better. Civil disobedience whistleblowers go outside the system (and the law) seeking to change or disrupt government policy. With their very different perspectives on power, the two tribes of whistleblowers aren’t necessarily all that friendly.

Kiriakou, who spent 30 months in jail for talking to a reporter about the CIA torture regime, told Tucker Carlson he doesn’t think the White House whistleblower merits the name. “Actual whistleblowers go on to have their whole lives upended,” he said, and Trump promptly quoted him in a tweet.

In return, the defenders of legal whistleblowing are often outspoken in their belief that civil disobedience whistleblowers do not deserve legal protection. Mark Zaid, attorney for the White House whistleblower, wrote in a Washington Post op-ed in 2017 that, “As a matter of law, no one who leaks classified information to the media (instead of to an appropriate governmental authority) is a whistleblower entitled to legal protection. That applies to Winner, Snowden and Chelsea Manning, no matter what one thinks of their actions. The law appropriately protects only those who follow it. Anyone who acts contrary does so at their own peril.”

The limitation of legal whistleblowing, says Devine, “is that the rules are rigged to contain accountability,” not foster it. Multibillion-dollar federal agencies, including the CIA, have established mechanisms for reporting questionable activities. This process, by its very nature, seeks to co-opt the moral glamor of truth-telling in service of institutional self-protection. “It’s a steam valve, so that people won’t feel the need to do what Snowden did,” one former CIA official told me.

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The Trump whistleblower—a CIA employee according to the New York Times—is working under the ill-named Intelligence Community Whistleblower Protection Act. Despite its name, the law doesn’t offer much protection to those who seek to expose institutional wrongdoing.

The whistleblower must identify him- or herself to the agency whose wrongdoing he or she wishes to expose. Any whistleblower must turn over all relevant evidence to the agency. And, if he or she wants to talk to Congress, he or she must obtain the agency’s permission. These sorts of rules insure that agencies can deflect, muffle or kill most whistleblowers’ complaints. According to Devine, U.S. government statistics show only about 5 percent of legal whistleblowers actually prevail on the merits of the case.

But the rigged nature of the system doesn’t discredit the whistleblowers who seek to use it. Some of the allegations in the CIA whistleblower’s complaint have already been corroborated by the White House. The indictment of two Trump associates involved in pressuring Ukraine on Trump’s behalf suggests that corrupt dealings were the norm.

Nor is the law entirely a sham. Thomas Drake was indicted by the Obama Justice Department in 2010 on the Espionage Act charges. He had talked to a reporter about a billion-dollar NSA software program that he thought was an overpriced violation of civil liberties. Even though Drake’s complaints were justified, he lost his job and security clearance. He famously wound up working at an Apple store in suburban Maryland. But because Drake had first complained in official channels, the government eventually dropped the charges. Drake, a reluctant civil disobedience whistleblower, told Slate he wholly supports the legal CIA whistleblower who denounced Trump’s dealings.

With the president openly asserting that the law does not apply to him, now is not the best time to delegitimize legal whistleblowing. Rather, it’s a good time to strengthen it. On the same day that Democrats in Washington worried about the safety of the CIA whistleblower, the European Union adopted a directive to its 28 member states enhancing protections for whistleblowers in both the public and private sectors. Whistleblowers are “encouraged to use internal channels… first” within their organizations, but “will not lose the protection they receive if they decide to use external channels in the first place,” the EU said in a statement on Monday.

According to Devine, the new rule allows whistleblowers to amount a “public interest” defense of their actions if they are charged with breaking the law. That would help Snowden, who chose not to use the NSA’s internal whistleblowing process because he saw how it was used to punish Drake. In his recent memoir, Snowden wrote he would voluntarily return to the United States to face criminal charges, if he were allowed to mount a public interest defense. Right now, he does not have that option. When it comes to whistleblower protections, “the U.S. is falling behind the rest of the world,” Devine says.

Maybe the specter of a lawless president and the example of an insider legal whistleblower who called him out will prod Congress to start creating more protections for those who want to speak truth to power. We need more of those protections now more than ever.

Jefferson Morley is a writing fellow and the editor and chief correspondent of the Deep State, a project of the Independent Media Institute. He has been a reporter and editor in Washington, D.C., since 1980. He spent 15 years as an editor and reporter at the Washington Post. He was a staff writer at Arms Control Today and Washington editor of Salon. He is the editor and co-founder of JFK Facts, a blog about the assassination of JFK. His latest book is The Ghost: The Secret Life of CIA Spymaster, James Jesus Angleton.

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