Five Things Not To Do If You Want to be a Successful National Security Whistleblower
Inspired by the Official Secrets film
By Gabrielle Simeck
The new film Official Secrets recounts the powerful story of Katharine Gun, a former translator and specialist at a British intelligence agency, Government Communications Headquarters (GCHQ), who in 2003 leaked a memo detailing American attempts to fix a United National Security Counsel (UNSC) vote in favor of the Iraq War. The memo was published by The Observer, leading to international uproar. Following the publication of the memo, Gun confessed and was charged under the Official Secrets Act in Great Britain. However, the charges against her were dropped by the prosecution almost immediately after she entered her not guilty plea in court. The prosecution provided no evidence nor any explanation for its decision, but according to reporting in The Guardian, Gun’s defense intended to include “the full advice” of then-Attorney General Lord Peter Goldsmith on the “legality of the war against Iraq.” The Guardian conjectured that this evidence “could have been potentially damaging and embarrassing to the government.”
The fact that Official Secrets candidly portrays Gun’s whistleblowing experience, including her deliberation over her decision to leak the memo and the intense scrutiny she faced, helps to counter the myth that whistleblowers are either “disloyal” or “heroes.” In reality, whistleblowers find themselves at the crux of a moral impasse and are forced to make an ethical decision they can stand by. Movies like this one demystify whistleblowing and render whistleblowers relatable to the public. Nonetheless, the Hollywood version of Gun’s whistleblower story contains a few key examples of risky choices that would have likely imperiled the success of a national security whistleblower, at least in the U.S.
Note: while the film focuses on a national security whistleblower in the British context, this blog’s focus is on relevant whistleblower law in the United States. As such, any advice pertains only to American national security whistleblowers.
Five Things to Avoid:
1. Speaking with a journalist without first consulting with an attorney
After reading the memo, Gun returned home to contemplate whether to act on what she felt was her duty to the British people to alert the public to American attempts to swing the UNSC vote on the invasion of Iraq. Gun went first to a friend, who eventually passed on a copy of the original memo to a journalist contact. However, Gun did not consult with an attorney until she had already been arrested for violating the Official Secrets Act. At Government Accountability Project, we counsel whistleblowers to always speak with an attorney before taking action, including alerting the news media. Gun’s choice to print out the classified memo and remove it from the premises would have certainly broken American law, but there are ways for national security whistleblowers to legally blow the whistle through protected channels. Journalists likely won’t have deeper knowledge of the complicated patchwork of protections offered to whistleblowers and crucially may lack the expertise necessary to advise national security whistleblowers. In the past year alone, three separate sources for the same media outlet have been identified and later indicted for providing a journalist with classified information. Whistleblower attorneys will best know how to counsel whistleblowers, and, particularly intelligence whistleblowers who have limited legal protections and face greater hurdles to legally disclose classified information, as they attempt to raise concerns in order to maximize their impact while minimizing reprisal.
2. Copying classified information from a work email into another saved file
3. Printing out a copy of confidential or classified materials at work
4. Taking printed classified material from work home
In the film, Gun copies content from a classified memo into another document, which she saves to a floppy disk under the title “To Do List.” She then prints out a copy of the memo at work and removes the print out of the classified memo by folding it up and hiding it in her jeans’ pocket.Though this crude method was effective, at least within the universe of the film, in today’s world a national security whistleblower would likely be immediately detected. Moreover, such actions are unquestionably illegal in an American context. National security whistleblowers can make a protected disclosure of classified information, but they are required to follow certain laws and regulations governing that process.
Our newest resource, “Caught Between Conscience & Career: Expose Abuse without Exposing Your Identity,” also offers critical advice for whistleblowers who work with classified information. As we wrote in “Caught Between Conscience & Career,” in “[our] experience working with national security whistleblowers, [we have] never come across misconduct that cannot be credibly, effectively summarized in an unclassified manner. It may take classified information to prove a charge, but not to allege there is an abuse of power or other misconduct” (34). Whistleblowers can safely raise concerns about classified materials through unclassified means. As suggested above, whistleblowers will be best able to consider this option and alternative paths toward disclosure by consulting a lawyer who specializes in whistleblower protection.
5. Blowing the whistle without talking to your family
In the film, Gun blows the whistle well before speaking with her family, including her husband. Her husband was then a Turkish refugee living in Great Britain, who was required to check in at the local police station each week. One of the forms of retaliation Gun experienced was the near deportation of her husband, which was stopped just in time. Whistleblowers often experience these and other extreme forms of retaliation and should speak with their families before blowing the whistle to consider whether they can weather the emotional, social, and financial costs of truth-telling.
In the U.S. context, a national security whistleblower, like Gun, would have likely been legally barred from sharing information about her disclosure of classified information with her husband. As referenced above, whistleblowers can avoid putting their loved ones in a position of legal liability by discussing their options for disclosure with an attorney. An attorney will be able to guide the whistleblower through what they can and can’t disclose to their family and help shield the whistleblower and their family from liability and retaliation.
Though blowing the whistle always entails considerable risk, by following these guidelines intelligence whistleblowers may avoid unintentionally opening themselves and their loved ones up to legal liability, make informed decisions about the choices before them, and maximize their potential impact.
While this piece has focused on the importance and availability of internal channels for making disclosures of classified intel, I would be remiss if I did not recognize the unusual dilemma before intelligence whistleblowers who must report classified information through flawed internal channels while having weak protections against prosecution. As the scholar David Pozen has described, national security whistleblowers face an unusual conundrum in that their disclosures confound typical theories of civil disobedience which could justify potential whistleblowing outside the realm of legal activity. In the case of Edward Snowden, Pozen wrote, “Only by violating the laws limiting disclosure of classified information, it seems, could Snowden communicate his condemnation of the laws and policies governing NSA surveillance.” Furthermore, as our Legal Director Tom Devine has written in The Washington Post,
“a fatal flaw undermines warnings that whistleblowers rejecting official channels proceed at their own risk under the Espionage Act; they proceed at their own risk when they follow the rules. All whistleblowers are defenseless against criminal liability. Unlike more than a dozen nations, even including Zambia, the United States has no public-interest defense against prosecution.”
This is why advocacy organizations like ours demand reforms for Intelligence Community (IC) whistleblowing, especially the introduction of a reliable public interest defense. Until then, intelligence whistleblowers will remain in a bind: risk their careers and even their freedom to disclose wrongdoing or potentially allow classified fraud, waste, and abuse to go unpunished.
For more information on blowing the whistle, consult our resources page or the second edition of our journalism guide.