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Where is the Line?: When the Whistleblower Works for the Government

whistleblower.jpgAs anyone who has ever seen an episode of Law & Order knows, prosecutors must often rely upon information and testimony provided by informants, whistleblowers, and even accomplices to help prosecute the most dangerous criminals. After all, who better knows the inner workings of a crime than one of the perpetrators? While using one thief to catch another is seen as distasteful by some, most people realize that this is the only way to secure convictions for the most dangerous criminals; for example, using a small-time drug dealer to help convict the kingpin, or the co-conspiring accountant to testify against the CEO’s embezzlement.

However, the situation becomes much more complicated when the whistleblower is a federal employee and they are blowing the whistle on the federal government. Federal employees work for the government, and parts of their job might require them to keep information about dangerous, unethical, or even illegal activity by the federal government away from the general public. This creates a difficult balancing act: when should a federal employee maintain the secrecy of such information, and when should they provide leaks to the press? Does it matter whether the federal employee is in a position of power? Are their motives relevant?

Some of these questions are easier to answer in hindsight. FBI Associate Director W. Mark Felt, who was given the pseudonym “Deep Throat”, was one of the highest ranking officials in the FBI and leaked information to two reporters about then-President Richard Nixon’s policy of spying, surveillance, and illegal activity towards opponents, which ultimately lead to Nixon’s resignation. Daniel Ellsberg was a military analyst who leaked the “Pentagon Papers” to the public, exposing how the US was being lied to about its involvement in Vietnam. While Ellsberg was criminally charged, neither man was ever convicted, and both are regarded as brave and heroic for their decision to become whistleblowers.

More recent whistleblowers have had less success. Private Chelsea Manning was convicted of espionage and sentenced to 35 years in prison for her decision to transfer thousands of classified military and diplomatic records to WikiLeaks, and Edward Snowden, a contractor for the National Security Agency, was charged with espionage and fled to Russia after he revealed how the federal government tracks private citizens via a massive electronic-surveillance program. This policy of prosecution and retaliation has been blamed on President Obama who, despite statements made during his campaigns, has acted aggressively to root out and punish federal whistleblowers.

The issues surrounding federal whistleblowers reached a boiling point this year, as the Supreme Court dealt with the question of how Public Safety versus National Security should be balanced. The Supreme Court surprised many when it ruled in favor of the whistleblower in Department of Homeland Security v. MacLean, 574 U.S. __ (2015), which dealt with whether or not a federal air marshal should receive protection under the Whistleblower Act of 1989 after he leaked information to the press. However, this is only a small step in the right direction, as just this week Jeffrey Sterling, a former CIA employee, was convicted of espionage. Mr. Sterling’s crime was leaking information to journalists about Operation Merlin, a failed attempt by the Central Intelligence Agency to provide Iran with flawed designs for nuclear weapons components. It is unknown whether Mr. Sterling will appeal his conviction, but there are likely many more potential whistleblowers who are watching to see how it will end.