Following Edward Snowden’s leaks to the press about the scope of NSA surveillance, public opinion polls have posed questions like, “Do you think Snowden is a whistleblower, or a traitor?” Regardless of the polls’ results, the fact that a distinction is being made between the two terms is progress, according to Dana Gold, a senior fellow at the Government Accountability Project (GAP), an organization that represents whistleblowers and lobbies for stronger legal protections.
Blowing the whistle on a government agency or corporation—whether it concerns a widespread threat to the civil liberties of all Americans, or a very particular threat to the health of people who enjoy peanut butter—is an enormous, difficult decision for anyone, says Gold. Invariably, it’s also a very isolating experience. So, in an attempt to both clear up some of the misconceptions surrounding whistleblowing and get students thinking about these difficult issues before they enter the workforce, GAP organizes a nationwide “Whistleblower Tour.”
Over the past three years, the tour has brought an impressive roster of notable whistleblowers to colleges across the country. This year’s tour is especially timely and relevant, of course; Snowden’s story has inspired public awareness of—and debate over—whistleblowing in general, and the fraught but fundamental relationship between whistleblowers and the press, as no other whistleblower has before. (In fact, some of the Whistleblower Tour speakers recently went to Russia to visit with Snowden, later returning home to DC to deliver a message from him at the rally against NSA surveillance organized by the Stop Watching Us coalition.)
Historically, government and corporate whistleblowers have suffered reprisal not only from their employers and the government, but from the broader public as well. There is a common public misconception that whistleblowers would have blanket legal protection if they would only go through “proper channels” with their complaints. So, this line of thinking goes, if whistleblowers reveal wrongdoing to the press rather than discreetly speaking to their bosses or a trusted member of Congress, they must be in it for the fame or the money.
“I think some people think that there’s one law, like Title VII, that protects whistleblowers, and there isn’t,” Gold says. There is a certain amount of whistleblower protection built into the Sarbanes-Oxley Act, the Food Safety Modernization Act, recent amendments to the National Defense Authorization Act, and so on—many of which GAP worked closely on—but there are still far too many exceptions and loopholes, says Gold.
“It’s a patchwork of legal protections that depends on what you’re blowing the whistle on, what kind of employee you are, who you made the disclosure to, the kind of reprisal that you suffered… you can easily fall through the cracks.” (Snowden, for instance, wouldn’t have been covered by any whistleblower protection law; national security employees are completely exempt.)
Often, during “Whistleblower Tour” events, the conversation turns to how these whistleblowers think about their delicate dealings with the press. A panel discussion at Florida International University last month featured NSA whistleblower Thomas Drake and Justice Department whistleblower (and now GAP National Security and Human Rights Director, and Drake’s attorney) Jesselyn Radack. Both described the vital role of the press, in not only helping expose the problems they fought to expose, but also in saving them, individually, from the harshest reprisals.
When Drake saw evidence of “waste, fraud, and abuse” at the NSA, he initially worked through the “proper channels”—first speaking to his superiors, and then, privately, to intelligence committee members in Congress. He and colleagues spoke at Congressional oversight hearings and submitted a report to the Defense Department Inspectors General. The concerns were not addressed and no action was taken, except for retaliation against him by his bosses. So he took the next step in a series of elevating risks, by reaching out to a reporter.
In 2006, Drake anonymously and electronically contacted Siobhan Gorman, then of the Baltimore Sun, and then later met her in person. He gave her non-classified documents, and she published the information. Because of these actions, and because he was swept up by association into a separate investigation involving other whistleblowers who gave classified information to The New York Times, Drake was charged under the Espionage Act and faced a potential of 35 years in prison.
Drake credits the reporters he talked to next with, indirectly at least, for keeping him free. Government prosecutors had called him “a traitor” and “an enemy of the state.” Because the government had alleged that Drake possessed classified documents, all of the court hearings up until his trial were closed to the public, and many of those records were sealed, Drake explained. “So I knew that this case would ultimately shift in public, not behind closed doors,” he said.