Private: Whistle-Blowing Gone Overboard

 

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.

 

The genesis of whistle-blowing wasn’t to undermine national security, it was to protect it. Fighting the “unimaginable levels of fraud” that made the supplies for the Union Army “poor and rare,” America’s first whistle-blower law was designed to enlist private citizens in bringing cases to protect America’s national interest. Senator Jacob Howard, the bill’s sponsor, spoke to the qui tam section of the bill, arguing that it would “hold out to a confederate a strong temptation to betray his coconspirator, and bring him to justice.”

 

The genesis of American whistleblower law wasn’t to empower the individual to overturn national security decisions they disagreed with; the law was intended to help the Union Army fight and win a war by fighting illegal activity. These origins are worth remembering today.

 

As we struggle to define who should be protected as a whistle-blower, pundits such as Glenn Greenwald want us to believe that Edward Snowden is a whistle-blower, rather than a traitor. They are wrong. The purpose of whistle-blower protection was to uncover illegal activity, not activity that the individual disagreed with. Snowden revealed a program that, no matter your opinion on its wisdom, had been sanctioned by all three branches of government. The program was undoubtedly a legal endeavor.

 

The question, then, is whether it is acceptable for an individual with access to privileged information to release information about programs they simply don’t like. The answer to that must be no. Government employees and contractors are not given any protection under the Whistleblower Protection Act to disclose activities that they dislike. If that were the case, every time a subordinate’s opinion was overruled by his superior he could be driven to leak it. Even some Senators who are normally supportive of whistleblower protection have rejected Snowden’s status as a whistleblower because he violated the law.

Some may compare Snowden to Daniel Ellsberg, but Snowden is no Ellsberg. During the Vietnam War, Secretary of Defense Robert McNamara commissioned a study on the history of the Vietnam War. One copy of the secret study was placed at the offices of the RAND Corporation, where Ellsberg was working. Ellsberg read the document and began to share its contents with anti-war Senators, but the content was largely of a historical nature rather than reflecting an ongoing part of the war in Vietnam. The purpose of the revelation was to reveal that Johnson, and to some degree Nixon, had lied to the American people about the progress of the war. The Pentagon Papers posed no imminent threat to American lives. When The New York Times first covered the study, its story was entitled “Vietnam Archive: Pentagon Study Traces Three Decades of Growing US Involvement.” The distinction between Ellsberg and Snowden is obvious; the former was revealing a historical study, the latter jeopardized an ongoing program.

We all know that the Constitution is not a suicide pact, and neither are our whistleblower protection laws. We can make meaningful distinction between the budget analyst who exposes a waste of government money and a disgruntled low-level contractor who takes a huge government program into his own hands. The case of someone like Ellsberg, who exposes information because of a political view, will be the exception not the rule.

 

Edward Snowden may want to paint himself as a whistle-blower but that would lead to the full undoing of why we enacted whistle-blower laws in the first place. These laws are meant to protect the nation and our public servants, not threaten them.