If the debate over Bradley Manning and Edward Snowden has taught us anything, it is that the term whistleblower still carries with it undeserved negative connotations of greed, spite, narcissism and disloyalty. Yet, nothing could be further from the truth. Instead, whistleblowers are by and large highly principled individuals with an undying loyalty to the truth and public welfare— frequently at great personal cost.
President Obama acknowledged as much in 2009, stating that, “[o]ften the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and speaking out.” Such was the case for FBI whistleblower Fred Whitehurst who, while serving as head of the FBI crime labs, alerted the public to widespread evidence contamination that contributed to the wrongful conviction of an untold amount of people and the complete perversion of justice. The case of Fred Whitehurst reveals that for a society based upon the rule of law and public accountability, nothing is nobler than lawfully reporting violations of the public trust. This is and has always been a fundamental precept of our national ethos.
My American Civil Liberties Union colleagues and I have been extremely busy since the Guardian and the Washington Post published leaked classified documents exposing the scope of the government’s secret interpretations of the Patriot Act and the 2008 amendments to the Foreign Intelligence Surveillance Act, which allow the FBI and NSA to spy on hundreds of millions of innocent Americans. We haven’t written much about the alleged leaker of this information, Edward Snowden, however, mainly because we took his advice to focus on what the NSA and FBI were doing, rather than on what he did or didn’t do. (See exceptions here and here).
But I did want to clear up a question that seems to keep coming up: whether Snowden is a whistleblower. It is actually not a hard question to answer. The Whistleblower Protection Act protects “any disclosure” that a covered employee reasonably believes evidences “any violation of any law, rule, or regulation,” or “gross mismanagement, a gross waste of funds, and abuse of authority, or a substantial and specific danger to public health or safety.”
In the two months since Snowden’s alleged disclosures, no fewer than five lawsuits have been filed challenging the legality of the surveillance programs he exposed. The author of the Patriot Act, Rep. James Sensenbrenner (R-Wis.), called the scope of data collection revealed in one of the leaked Foreign Intelligence Surveillance Court orders “incredibly troubling,” and “an overbroad interpretation of the Act” that “raise[s] questions about whether our constitutional rights are secure.”
by Sam Kleiner, Senior Editor for the National Constitution Center's Constitution Daily and a student at Yale Law School.
Long before Ralph Nader coined the term in his 1972 book Whistleblowing, American whistleblower law got started in the midst of the Civil War. With the concern that suppliers were defrauding the Union Army, Congress passed the False Claims Act in 1863. The law allowed private citizens to bring qui tam cases against companies that allowed them to recover damages if they could prove that the company was defrauding the government.
Edward Snowden’s revelations about the Foreign Intelligence Surveillance Court’s (FISC) secret rulings have heightened scrutiny on the court and the work it does. The court, which meets in the same building as the U.S. Court of Appeals for the D.C. Circuit, is unique among federal courts in that its judges are not appointed by the president and then confirmed by the Senate. Instead, the court is made up exclusively of sitting judges who are appointed by the Chief Justice of the United States for seven-year terms with no legislative or executive oversight. Professor Theodore Ruger at the University of Pennsylvania said that the way the court is set up, the Chief has unchecked authority to appoint people to the court who share his views.
A few weeks ago I wrote a piece published in The Lawyer, a London based legal paper. My column, which questioned whether Edward Snowden is a whistleblower, drew passionate comment from those, like myself, who are counsel for individuals who are called whistleblowers because they have questioned corporate and government misconduct including lies. The discourse has caused me to continue to ponder the issue.
The question of whether an individual is indeed entitled to be called a whistleblower is not just a matter of academic discourse. Whistleblowers are generally entitled to protection from retaliation and, under laws like the U.S. False Claims Act and the Dodd-Frank Amendments; they may even be entitled to a bounty. Setting aside the legal issue, those who properly question immoral processes, laws, or conditions, are in some circles considered heroes. And so this is also about who we place on a pedestal as beacons of ethics, integrity, and plain guts.
For me there are two components to the analysis of who is a "whistleblower”: (1) the reason for questioning a practice or law, an effort which may involve the disclosure of private or confidential information, and (2) the method for doing so.
Merely making public private information - no matter how interesting the information may be - is not by itself a colorable act of whistle blowing unless there is some greater moral or societal purpose to be addressed. Then, of course, there is the question of the process employed to "blow the whistle."