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.
He and Radack (whom he first found when he read an op-ed she wrote in The Los Angeles Times, incidentally) both knew that in order to have a fair chance in court, he would have to give himself a fair chance in the court of public opinion. “It was very important to get the media involved, and to try to turn the Titanic, because when you only have one side speaking, meaning the government, and they have a huge megaphone, creating this caricature of you, it’s hard to fight back against that,” said Radack. “With the media, I felt like we were able to educate the public, that there’s a difference between leaking and whistleblowing. And that difference is public interest.”
This is not to say that the particular members of the media that they contacted were advocates, or that their reporting was biased. Jane Mayer’s cover story in The New Yorker and Scott Pelley’s segment on 60 Minutes, both of which came out in the month before Drake’s case went to trial, lucidly and clear-headedly explained Drake’s situation and conveyed information that the public had not previously had access to. (An especially strange segment of The Daily Show told his story, too—but that came much later, when it was finally okay to laugh about it).
After the Mayer article and the Pelley segment came out, Radack continued, “Then newspapers started suddenly writing editorials, saying, ‘Wow, the government shouldn’t be charging him under the Espionage Act, and the government is overcharging him, just like they overcharged Aaron Swartz.’ It was like a flood.” The government prosecutor’s case “basically crumbled,” and the judge excoriated the government for even taking it forward. Drake’s charges were dropped.
The necessary evil of anonymity came up in several Whistleblower Tour discussions, as well. Another stop at the University of Nebraska-Lincoln featured Pulitzer Prize winning investigative journalist Mike McGraw from the Kansas City-Star, who worked with a whistleblower in 2008 to expose a dangerous breakdown in the maintenance of reconnaissance planes at the Offutt Air Force Base in Nebraska. McGraw spoke about the inherent difficulties of keeping sources’ names out of stories. “For my purposes, I don’t like unnamed sources, and readers don’t like unnamed sources,” said McGraw. “[Readers] have a tendency to believe that it’s a figment of my imagination, or a journalistic conspiracy.”
But, McGraw said, that doesn’t mean that a source’s request for anonymity stops his pursuit of the story; it’s only the beginning of the process. “In many cases, I have relied on whistleblowers to basically draw me a map,” said McGraw. “Where are the documents I need to go to? What other possible sources can I go to, who might be named? What are other alternate ways we can get at this story? And there’s almost always alternate ways to get the information, without naming the whistleblower or using an unnamed source.”
Towards the end of the FIU event, I asked them a question via Twitter: Given their experience, what advice could Radack and Drake give to journalists who may be contacted by whistleblowers in the future, about both inviting and managing that delicate relationship?
“If you’re going to communicate with a source electronically, be safe about it, and use encryption,” responded Radak, suggesting Pretty Good Privacy as a good place to start (PGP, a free equivalent of which is GPG, is available here).
But sometimes that won’t be enough, Radack added. In her work as an attorney representing whistleblowers, all of her clients from the NSA insist on meeting her in person. “Unfortunately, we have all of this amazing technology, but you may have to do your job kind of the way that I do mine, which is: Meet with your source in person, pay in cash, use burner phones. You know, drug dealer tactics.”
The moderator asked another question about Drake’s and Radack’s decisions to blow the whistle on their employers: Would you do it all again, knowing what you know now, and considering everything you went through as a result? “Yes, without hesitation,” said Drake simply, to audience applause.
“I may have done it a little bit differently, because I tried to blow the whistle anonymously, like a lot of people do, because they don’t want the spotlight to be on them, they want the spotlight to be on the wrongdoing by the government, but instead I would have probably just held a press conference on my front stoop,” said Radack. “But yeah, I’d blow the whistle again. It was the first night I’d slept soundly in months.”