Deep Throat to NSA Wiretaps--The Role of Whistleblowers
by Jonathan Ware, Editor-at-Large
Since news broke on December 16, 2005 that the National Security Agency was conducting secret and warrantless electronic surveillance of hundreds of Americans, countless citizens, scholars, and legislators have expressed concern about the program's constitutionality. Russ Tice, a former NSA employee, put a name and a face to the program as a whistleblower. He also sparked a separate debate about those who step forward with such revelations.
All three branches of government are weighing in. Two months after the NSA story broke, on February 17, 2006, while Paris Hilton and Michael Jordan celebrated birthdays, the U.S. Supreme Court scheduled new oral arguments in a whistleblower free speech case, Garcetti v. Ceballos. Two days earlier, a House Government Reform Subcommittee held a hearing into problems of national security whistleblowers in particular. Meanwhile, President Bush called the release of the NSA program's existence a "shameful act." Two weeks later the Justice Department announced an investigation into the leak of the NSA program, although the administration had been aware of the leak for a year. Many commentators have since fallen into hackneyed party line positions over the role of people like Russ Tice - a patriot or pariah dichotomy - without regard to the underlying rationale of the whistleblower.
Congress has stated that whistleblowers "serve the public interest by assisting in the elimination of fraud, waste, abuse, and unnecessary Government expenditures." Historically, whistleblowers have shed light on dark abuses, often leading to great change. An American President resigned. Landmark First Amendment case law was made. After thirty years in the shadows as one of Washington's best-kept secrets, W. Mark Felt, the FBI's second-ranking official under President Richard Nixon, stepped forward in Spring 2005 to reveal that he was "Deep Throat" - the inside source who led Washington Post reporters down the right trails during Watergate to expose gross abuses of power. (For 30 years, movie buffs knew Felt only as Hal Holbrook from All the President's Men). One year before Felt contacted the Post, Daniel Ellsberg, a former State Department analyst, sent the "Pentagon Papers," a secret account of the Vietnam War to the New York Times. (No Holbrook, Ellsberg has to settle with James Spader). The Papers revealed a systematic pattern of misinformation by military and government officials concerning the highly controversial war.
Congress enacted the Whistleblower Protection Act (and similar laws) to prevent adverse consequences against those who step forward to disclose wrongdoing. Congress also offered whistleblowers financial incentives to disclose wasteful practices. Under the federal False Claims Act, whistleblowers can receive up to 30 percent of all money recovered in the case of financial abuse. This has made some workers millionaires for exposing government waste. National security cases, on the other hand, are handled much differently.
The Intelligence Community Whistleblower Protection Act of 1998 established protection in three areas of "urgent concern:" (1) a serious or flagrant problem, abuse, violation of law or executive order, or deficiency relating to intelligence activity involving classified information; (2) a false statement to, or willful withholding of information from, Congress regarding intelligence activities, or (3) a reprisal in response to an employee's reporting of an urgent concern.
Due to the sensitivity of national security information, those whistleblowers actually receive less protection than other civil service employees. They are not subject to the Whistleblower Protection Act and cannot speak freely to Congress. "So who gets to hear their claims?" Rep. Dennis Kucinich (D-OH) rhetorically asked in the Government Reform Subcommittee's February 17 hearing. "Well, it's left to the employing agencies who are the ones who are often exposed, who then turn around and act as judge and jury when national security whistleblowers come forward with an allegation" (all testimony). Since 1999, only two of 30 whistleblowers have reportedly won cases against alleged retribution.
Incentives to come forward are limited. Beth Daley, senior investigator of the Project on Government Oversight, said, "Even when a whistleblower is right, they are rarely compensated for the loss of their job, their income, or their security clearance." The Inspectors General from three key federal agencies countered that reprisals are rare. Yet any reprisal can have a profound chilling effect.
To encourage shining the light of truth on illicit acts, Sen. Frank Lautenberg (D-NJ) introduced a bill on Valentine's Day that would allow whistleblowers to pursue claims of retribution for their acts in civil court rather than through the federal arbitration system.
In the end, it is not a political issue, but one that reaches the freedoms recognized in the Constitution. As Rep. Christopher Shays (D-CT) noted: the "extraordinary powers needed to wage war on our enemies could, if unchecked, inflict collateral damage on the very rights and freedoms we fight to protect . . . expansive executive authorities demands equally expansive scrutiny by Congress and the public." Whistleblowers, he added, are an "absolutely essential source."