Friday, January 3, 2014

Who Counts as a Whistleblower?

(Cross-posted from CREW)

Disclosures about the National Security Administration’s (NSA) surveillance programs have prompted a discussion on whether the person who released that information, Edward Snowden, could properly be deemed a whistleblower.  The word whistleblower is important because it frames how we think of him and what should become of him.

By definition, whistleblowers are people who “expose wrongdoing within an organization in the hope of stopping it.”  The term may be contrasted with leakers, defined as “surreptitious informants” and carrying the connotation of self-interested or sinister motivations.  There can be an overlap between the terms, best exemplified by Watergate’s deep throat, FBI Associate Director Mark Felt, who shed light on massive government wrongdoing but did so in part out of petty motivations.

Much meaning is packed into the concept of whistleblower, which is an umbrella term that includes several kinds of whistleblowing.  Illuminating these distinctions may help refine our instincts about Snowden, and whistleblowers generally.

The most commonly understood type of whistleblower is someone who exposes graft, self-dealing, or other malfeasance.  For example, raising the alarm on a government bureaucrat who solicits bribes is a form of whistleblowing.  The same is true for reporting a government contracting official who steers agreements to a preferred vendor in return for a kickback.  There is wide consensus this illegal and immoral behavior should be punished and publicly exposed.  For ease of reference, let us call this corruption whistleblowing.

A second kind of whistleblowing occurs when someone reports problems with the administration of government programs.  For example, a person who discloses that a military contractor ran late and significantly over budget is a whistleblower.  Similarly, a person who goes public regarding serving poor quality food to school children, where the food meets inappropriately low legal minimums and poses nutrition or health risks, also qualifies.  Competent management would have prevented these lapses from arising.  Let us call this mismanagement whistleblowing.

I suggest there is a third kind of whistleblower: someone who brings to light government behavior that shows the government has deceived the public about its actions.  For example, Daniel Ellsberg's dissemination of a secret study of the Vietnam War, known as the Pentagon Papers, demonstrated that the government knew it was going to lose the Vietnam War even while giving the American people assurances to the contrary.  Another example is the publication of the “enhanced interrogation methods” used by the Central Intelligence Agency (CIA) to torture individuals.  The activities exposed may or may not be authorized by law, but this form of whistleblowing reveals contradictions between the public’s understanding of government policy and official actions.  Underpinning the disclosure is a debate about what government policy should be — a debate forestalled by government secrecy.  Let us call this democracy whistleblowing.

A single act may qualify as whistleblowing under one or more of these categories.  In many instances, federal law has created channels for corruption whistleblowers and mismanagement whistleblowers to report inappropriate activities.  Unfortunately, avenues for democracy whistleblowing are extremely limited.  In fact, there is a substantial disagreement on whether there can be such a thing as democracy whistleblowing, let alone whether a particular instance would qualify as such.  The governmental activity may not be considered by those in power to be illegal, and efforts to raise questions about it may result in the potential whistleblower losing his or her job or worse.

Whistleblowers are supposed to report problems up the chain of command or to independent governmental entities.  Reporting problems in this way theoretically shields the whistleblower against criminal prosecution for leaking as well as against retaliation by angry government officials.  In practice, whistleblowers who follow so-called proper channels often suffer greatly, and the reports frequently are ignored.

Reporting problems to Congress poses particular risks.  Members of Congress do not always handle allegations properly, and sometimes share the name of the whistleblower with the government officials implicated in wrongdoing.  Other times, members may feel constrained from sharing this information with the public, or even delving into it themselves, especially when the matter concerns national security.

Sometimes the only way to prompt remedial action is to go to the media.  Indeed, the media is often referred to as the “fourth estate” whose job is to hold the government to account.  In the United States, it is not illegal for the media to publish information, but it can be illegal for the whistleblower to provide that information to the media.

As far as we know, Snowden does not qualify as a corruption or mismanagement whistleblower, although there are indications of NSA mismanagement.  In addition, arguments could be made that at least some of the disclosed NSA actions were legal.  Given the nature and stated intent behind his actions, Snowden is best characterized as a democracy whistleblower.  But that begs the question: Do we wish to accord whistleblower status to those who divulge information necessary for democratic accountability when that disclosure apparently violates the law?  Our confusion leaves Snowden to face virtually unlimited risk, especially were he to return to the United States.

While Snowden’s flight from the U.S. after revealing secrets to the Guardian is sensible from a risk-mitigation perspective, it also makes his message more vulnerable to attack.  Some critics paint him as anti-American because of those who have given him refuge.  Similarly, some civil society organizations do not wish to go too far in defending him either out of fear that they too will be painted as un-American or that he will release information the disclosure of which would be difficult to defend.  While unsavory, it is unsurprising that organizations are engaging in realpolitik.  But, what would be in the best long-term interest of our democracy?

In some sense, that dilemma reduces to a series of judgment calls.  Did Snowden reveal gaps in our system of democratic accountability?  Are we better off knowing what he disclosed?  Were these disclosures likely made as part of an effort to reform the system?  There can be little doubt the answer in all cases is yes.  We cannot avoid the conclusion that Snowden is a whistleblower, with all that it entails.  But in reaching that conclusion, we are also concluding the ends justifies the means.  That is a troubling result.  Perhaps, in the absence of strong whistleblower protection laws and robust rules that ensure an accountable and transparent government, that is the best we can do.