Note: this article, featuring our Legal Director Tom Devine, was originally published here.
If This Whistleblower’s Identity Is Revealed, We Might All Regret It
A short history of retaliation against government truth-tellers.
n Tuesday, House Intelligence Chairman Adam Schiff said the whistleblower at the center of President Donald Trump’s metastasizing Ukraine scandal wanted to testify before the committee. Whether his hoped-for meeting happens, the whistleblower, whose complaint was released to the committee ahead of Thursday’s hearing, might be moving toward giving up his anonymity. If the whistleblower’s anonymity is revealed, that could put him or her in dangerous and uncertain territory.
Since the beginning of whistleblowing in America, government whistleblowers who put their name and face on their revelations have not fared well, particularly those from the intelligence community. They are typically tarred in the media, often prosecuted and almost inevitably fired and blackballed from further government service. “So far as I’m aware, from [Daniel] Ellsberg to the present day, there hasn’t been a single case in which a genuine whistleblower who exposed major problems in the intelligence community has experienced anything other than retaliation,” Patrick Eddington, a former CIA employee who revealed that his agency and the military were covering up U.S. soldiers’ exposure to toxins during the 1991 Iraq War, told me. Especially in an unstable, emotionally charged, politically polarized era like the one in which the current whistleblower is operating, government truth-tellers are all too easily vilified as traitors, deflecting attention from the problems they are attempting to reveal.
Such attacks happen despite a long history of the United States institutionalizing ways to protect whistleblowers. In 1778, after the Commodore of the U.S. Navy retaliated against a group of sailors and Marines for revealing that he was abusing British soldiers, lawmakers responded. Congress proclaimed it “the duty of all persons in the service of the United States … to give the earliest information to Congress or any 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.” Later, the False Claims Act, passed under Abraham Lincoln during the Civil War to halt defense contract fraud against the fledgling Union armed forces, went further. The law empowered whistleblowers to become private attorneys general and prosecute cases on their own, even if the government elected not to intervene.
Riding the anti-corruption wave that followed Watergate, Congress passed a series of laws to foster and protect whistleblowing. Along with granting new powers and protections to individual whistleblowers, internal, whistleblower-like structures were created in industry and government alike: Compliance departments proliferated in U.S. companies, and the Inspector General Act of 1978 established offices in major departments and offices to prevent fraud, waste, abuse and misconduct, as well as to receive and act on whistleblower complaints. The intelligence community inspector general, Michael Atkinson—whose authority acting director of National Intelligence Joseph Maguire temporarily flouted by prohibiting him from sharing the current whistleblower’s complaint with Congress—is part of this system.
Despite these layers of protection, though, none of these laws has proven able to keep whistleblowers safe from professional and public retaliation. If history is any indication, the current whistleblower might end up regretting coming forward altogether.
Even national security whistleblowers who rigorously follow protocol often undergo vicious legal and professional reprisal. In 2007, for instance, after four senior National Security Agency officials and a member of the House Select Committee on Intelligence blew the whistle through official channels to the Defense Department inspector general about massive fraud and misconduct at the agency that they believed had facilitated the 9/11 attacks, officials at the inspector general’s office itself apparently identified them to the Department of Justice as potential leakers.
This revelation led to FBI raids of their homes at dawn, threats of criminal prosecution and the permanent end to five illustrious careers in public service. One of the five whistleblowers, Thomas Drake, was actually indicted on 10 criminal counts under laws including the Espionage Act, and was threatened with 35 years in prison after the FBI discovered documents in his home that they alleged were “highly classified.” (They were in fact unclassified documents that NSA officials retroactively pronounced as classified after they were seized from Drake.) The DOJ’s case was so feeble and overblown that it collapsed on the eve of trial, leading Judge Richard Bennett to condemn the prosecution’s treatment of Drake as “unconscionable.” “It is at the very root of what this country was founded on—against general warrants of the British,” Bennett exclaimed. “It was one of the most fundamental things in the Bill of Rights that this country was not to be exposed to people knocking on the door with government authority and coming into their homes.” Nevertheless, Drake lost his job and his security clearances, and became permanently unemployable in national defense.
Intel whistleblowers who, to avoid being muzzled by reporting through defective channels (such as in the current case) take their concerns outside of their agency, usually fare far worse. That’s because of the Espionage Act, a 1917 law originally passed to punish foreign spies and which is regularly employed to prosecute those who disclose national security information in ways that are not sanctioned by the government.
Defendants in Espionage Act trials are permitted no public interest defense, which would likely help their case with a jury. Defendants are prohibited from explaining to the court why they blew the whistle in the first place, or describing the crimes and public harm they were attempting to halt. Ellsberg still remembers his shock, during his 1973 trial on Espionage Act and other charges after he released the Pentagon Papers to the New York Times and other papers, when the prosecution prevented him from discussing his motives for releasing the papers—foremost of which was to end the Vietnam War. After his lawyer asked him straightforwardly why he’d done it, a prosecutor objected that the question was “immaterial,” and Judge William M. Byrne Jr. sustained. “My lawyer was stunned,” Ellsberg recalled to me in a recent interview. “He told Judge Byrne that he’d never heard of a case where a defendant wasn’t allowed to tell the jury why he’d done what he did. ‘Well, you’re hearing one now,’ Byrne said.” (Byrne eventually dismissed the charges against Ellsberg because of how the government had obtained evidence, but Ellsberg had been expecting to get a stiff prison sentence.)
Such gross abuse of law-abiding national security whistleblowers prompted Edward Snowden and others to make their revelations directly to the press, rather than risk being silenced and punished by following protocol. “Too often, you have to have a death wish to go through ‘established channels’ in national security,” says Tom Devine, legal director of the Government Accountability Project.
Barack Obama’s DOJ aggressively employed the Espionage Act to prosecute government employees who shared classified information with journalists, in some cases naming the journalists themselves as co-conspirators. The Obama administration charged eight such individuals—more than any other president—under the law, including former U.S. soldier Chelsea Manning, who leaked reams of documents to WikiLeaks, former CIA employee Jeffrey Sterling, who was accused of leaking documents to a journalist and former CIA analyst John Kiriakou, who made disclosures to the press about torture.
Eddington, the former CIA employee, was a rare instance of a whistleblower eventually being able to return to government service. Eddington, who blew the whistle first internally, then to Congress, then to the New York Times, resigned from the CIA in 1996, believing that continuing to work there was “pointless,” but he returned to work on Capitol Hill as a congressional staffer in 2004. Still, he was one of the luckier ones.
Although the Trump whistleblower went through the official channels, so far those channels have tended to conceal rather than to reveal his or her disclosures. It’s not clear how much longer the whistleblower will stay anonymous, but losing that anonymity is almost guaranteed to bring professional and personal pain—an unfortunate reality of whistleblowing in every occupation, but above all in national security.