Choosing to blow the whistle on the U.S. government is a big deal. It's a huge risk and, despite legal protections, can result in major negative repercussions. So why do people do it? What happens to them when they do? What protections do they have, and do those protections work?
Our guides to the process are Kathleen McClella, Deputy Director at WHISPeR, Danielle Brian, Executive Director and President of the Project on Government Oversight and Chris Appy, Professor of History at the University of Massachusetts Amherst.
Transcript
Archival: These latest leaks in Edward Snowden's campaign seem to be time for maximum embarrassment for the U.S. And the president.
Archival: I don't think he's a hero.
Archival: Obviously, the government was over surveilling more than they were being honest with the public. But this is not a simple whistleblower gets caught up. This is man decides to betray his country, leave with secrets.
Archival: We could not have carried off the Bin Laden raid if it was on the front page of the papers tonight. [00:00:30]
Archival: In a shocking move, President Obama is allowing Chelsea Manning, the Army private convicted of stealing and leaking hundreds of thousands of documents and videos to be a free woman in May.
Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And today we are talking about a rare breed of individuals and the dangerous and often controversial path they [00:01:00] tread. We're talking about whistleblowers.
Hannah McCarthy: We're talking about people who spill secrets, right? Right.
Nick Capodice: And the people who spill the secrets versus the secrets they spill. That's actually going to be an important distinction here, but we're going to get to that in a little bit. First, let's start with the basics.
Hannah McCarthy: Please Nick, what is a whistleblower?
Kathleen McClellan: So a whistleblower is someone who reveals information in the public interest that exposes waste, [00:01:30] fraud, abuse or gross mismanagement or a violation of law, rule or regulation.
Nick Capodice: This is Kathleen McClellan. She's the deputy director of the Whistleblower and Source Protection Program at Exposed Facts. The program is nicknamed WHISPeR.
Hannah McCarthy: That is a little bit of an acronym stretch, but I'm here for it.
Nick Capodice: WHISPeR provides pro bono legal services to whistleblowers and media sources, with a focus on human rights and civil liberties. Kathleen herself has [00:02:00] represented whistleblowers from the NSA, the CIA, and the FBI. So, to be clear, she is coming to us from a particular side of this issue.
Hannah McCarthy: And Kathleen mentioned that whistleblowing is about information that is in the public's interest. It's about telling the American people that the government is doing something so wrong that they have to know about it, like you're only going to blow the lid off that popsicle stand if there is something pretty bad going on in there.
Nick Capodice: Which leads [00:02:30] me to the next big thing about whistleblowing. Revealing big information is extremely high stakes.
Kathleen McClellan: I just came to truly admire these people, because I don't think that I would ever have the courage to be a whistleblower. Unfortunately, I think I would be a bystander. I'm way too establishment. And so to see these people who so dedicatedly believe in the mission of their agency and in the reason that they're in federal service, that they will risk their own career [00:03:00] for the benefit of the public. I mean, that's really admirable.
Hannah McCarthy: All right, Nick, I see news stories all the time that cite anonymous government sources. And, you know, we hear phrases like speaking on the condition of anonymity and according to people familiar with a story. Are all of those people whistleblowers?
Nick Capodice: Yeah, that's a good distinction. And no, they're not. Kathleen says there is a difference between what the government calls a quote unquote leak and [00:03:30] whistleblowing.
Kathleen McClellan: Leaks happen every day. The biggest leaker is the US government. Let's keep in mind that every day you read about anonymous government sources telling the press something and plenty of times about national security. And plenty of times that information includes classified information. But those were what you would call authorized leaks.
Hannah McCarthy: Authorized leaks, as in, these are the secrets that the government is choosing to spill.
Nick Capodice: Yeah. Information that is otherwise [00:04:00] classified and protected might be purposefully, if anonymously, leaked to the press.
Hannah McCarthy: So why? What's the game here?
Nick Capodice: Ultimately, it's about control giving the public some, but not all of the information seeming transparent without revealing all your cards.
Hannah McCarthy: So an authorized leak is maybe something that might make the government or someone in the government [00:04:30] look good, or look better or something.
Nick Capodice: Yeah, these leaks can also be used to float an idea and see how the public responds to it before you carve it in policy stone, or to spin news coverage, or to just mess with the political opponent or to curry favor with the press. So that is an authorized leak. But if you want to know when a whistle has been blown, pay attention to how the government responds.
Kathleen McClellan: The government loves to pathologize whistleblowers and come up with reasons why [00:05:00] they might have done something. They were disgruntled. They were angry. They were going through a divorce. They come up with all kinds of reasons why people might be whistleblowing. Unfortunately, the reasons never seem to include the government misconduct being exposed, which in our experience we found is the reason people are whistleblowing is because they've seen something that is so bad that they feel that the public needs to know about it.
Hannah McCarthy: Got it. Okay with whistle blowing? It sounds like the government is more likely to focus [00:05:30] on the person who did it, as opposed to the actual information which came out, which makes sense if you want to distract from that information itself. Speaking of, if someone is this worried about something this big within the government, is there any way to take care of it on the inside instead of going to the public?
Nick Capodice: Yeah, I mean, it's a little more involved than going to HR for something this big. You're probably going to go to the inspector general. [00:06:00] But Kathleen says that doesn't always work.
Kathleen McClellan: It's a structural problem. So you can have an aggressive inspector general investigator trying to do the right thing. However, ultimately the authority for that inspector general is with the agency head, even though they have a mission statutorily to act independently. And even though they're trying to do that, at the end of the day, the executive branch has authority and the agency head has authority. And so if you locate the oversight, it's like the fox [00:06:30] guarding the hen house. If you locate the oversight mechanism within the same agency that you're trying to do the oversight, when the whistle blowing gets big enough, when the challenge gets controversial enough, it will fail. Inevitably, structurally, no matter how well intentioned the actual individuals working within the Inspector General's offices are.
Nick Capodice: Basically, inspectors general should be able to freely report information to their boss and to Congress, but that doesn't always happen.
Hannah McCarthy: So whistleblowing might not [00:07:00] work at all. And even if it does, the government might write off that. Whistleblower as a disgruntled problem person. Is there any system in place that actually helps a whistleblower?
Nick Capodice: Several in fact, Hannah. One such system comes from the Whistleblower Protection Act.
Kathleen McClellan: So the federal Whistleblower Protection Act came out of a long history of people within the government trying to raise concerns and being retaliated [00:07:30] against. And it was first passed in 1989 and has been amended several times since, when whistleblowers, federal government whistleblowers, were simply not given the protection intent that the act.
Nick Capodice: The law says that certain federal employees can blow the whistle on violations of the law mismanagement, waste of funds, abuse of authority and when behavior poses a significant danger to public health or safety.
Hannah McCarthy: Okay. And you said certain employees [00:08:00] who is allowed to do this.
Nick Capodice: It applies to most executive branch employees or former executive branch employees. It also excludes a significant chunk of people.
Hannah McCarthy: Like.
Nick Capodice: Political appointees, uniformed military service members, employees of the intelligence community, including the FBI and employees of the US Postal Service, interestingly.
Archival: When you control the mail, you control information.
Hannah McCarthy: So [00:08:30] if you're sharing information that is protected under the act and you're one of the protected employees, can you tell just anybody?
Nick Capodice: Yeah, well, not anyone. Not exactly. They can talk about it internally to people inside their agency, a supervisor or somebody higher up. You know, they can also tell the offices of the special counsel or federal inspectors general. Those are really the safest places to go under the Whistleblower Protection [00:09:00] Act. But you can, with exceptions, you can go to Congress, coworkers, managers, independent government watchdog organizations, and finally, the media.
Hannah McCarthy: What are the exceptions?
Nick Capodice: The exceptions are vast, and they mostly have the same name. Sensitive material.
Hannah McCarthy: Sensitive material.
Nick Capodice: Sensitive material. Now, sometimes that means classified. Often it does not. The [00:09:30] various agencies define lots of information as sensitive but not classified. So at the end of the day, whistleblowing is about knowing whether the information you're sharing is allowed to be shared, and whether the person you're sharing the information with is allowed to receive it.
Hannah McCarthy: And it is the Whistleblower Protection Act, right? What are these individuals protected from?
Kathleen McClellan: Essentially, what you cannot do is retaliate [00:10:00] against a whistleblower. So you cannot take a personnel action, meaning you cannot fire them, suspend them, give them a reprimand, a written reprimand, any sort of personnel action that you would do. You cannot do under the Whistleblower Protection Act. And there are some other things as well.
Nick Capodice: For example, moving them to another department, reducing their pay or responsibilities, ordering a psychiatric evaluation or making a significant change to their duties, responsibilities or working conditions.
Kathleen McClellan: But it's important [00:10:30] to note that that applies to most federal whistleblowers. There are different laws that apply to corporate whistleblowers, and most national security and intelligence agencies are exempted from the federal Whistleblower Protection Act.
Nick Capodice: The intelligence community has its own whistleblower protections, but because they're usually the ones dealing with the really big secrets, it is a whole other complicated system. Interestingly, Congress says it's allowed to receive classified information, but [00:11:00] the executive branch does not always agree with that.
Hannah McCarthy: So generally speaking, is the classified stuff kind of tricky to get out there?
Nick Capodice: Yeah, it is.
Kathleen McClellan: Unfortunately, as a client of ours like to say, the government often classifies their crimes and the government is so motivated to keep things secret because why would you want to reveal that, you know, a drone strike that you want to say killed militants, actually killed civilians? You wouldn't want to reveal that information. The motivation to keep [00:11:30] it secret is just too great. And so structurally, without a protection for whistleblowers to come forward and bring out more truthful information, without accountability for overclassifying information, for classifying information in order to cover up misconduct, without accountability for those things, there's no way to kind of strike the correct balance.
Nick Capodice: There's also the Intelligence Community Whistleblower Protection.
Hannah McCarthy: Act, and that's the law that's supposed to protect whistleblowers in the intelligence community right from retaliation. [00:12:00] Like, I don't know, for example, getting their security clearance taken away.
Nick Capodice: Yeah, but Kathleen doesn't think the law is very effective, even with that provision against retaliation. Now, I want to introduce another guest here. Uh, Danielle. Brian, She is the executive director of the Project on Government Oversight. So there are protections in place for whistleblowers in some cases.
Danielle Brian: There's a real tension between the need, especially around national security, to reveal [00:12:30] misconduct and wrongdoing, but at the same time protect national security. And one of the things that we think is a really important reform is the government has as a tool the Espionage Act to go after. And it's certainly deters people from revealing wrongdoing because they know that the government has, under both Democratic and Republican administrations, aggressively applied the Espionage Act.
Nick Capodice: Now, we have talked about the Espionage Act before, [00:13:00] but real quick, this is the law that made it a crime to unlawfully detain or disclose information that could harm the United States or benefit its enemies. It was designed with spies and foreign agents in mind, but it has since been used against whistleblowers.
Kathleen McClellan: The first time it was used against a whistleblower for revealing allegedly classified information was in the Daniel Ellsberg case, the Pentagon Papers case.
Hannah McCarthy: Oh, [00:13:30] Nick, we gotta talk about the Pentagon Papers. I'm surprised it's taking you this long.
Nick Capodice: Yeah. You knew it was coming. Hannah, we will talk about the Pentagon Papers right after this break.
Hannah McCarthy: But before that break, Civics 101 is listener supported public radio. If you like what we do, then we're asking you to help support us. You can do that at our website, civics101podcast.org. And thanks.
Hannah McCarthy: We're back. We're [00:14:00] talking about whistleblowers and their protections, sometimes lack thereof. And Nick, before the break, you promised me one very loud whistle.
Nick Capodice: Maybe the loudest whistle of all, Hannah, this would [00:14:30] not be an episode about whistleblowers if we didn't talk about Daniel Ellsberg and the Pentagon Papers.
Chris Appy: Daniel Ellsberg is probably the nation's most famous whistleblower. In 1971, he became a household name when he released to the press and the public a 7000 page top secret history of the Vietnam War that exposed decades of government lies about that war.
Nick Capodice: That's Chris Appy. [00:15:00] He's a history professor at UMass Amherst and director of the Ellsberg initiative for Peace and Democracy.
Chris Appy: And what makes his life so interesting, in part, is that he, like many whistleblowers, had been an insider in the government and in the military and had once been a strong advocate of the Vietnam War. But his political and moral conversion, especially in the late 1960s, was quite dramatic. I don't know of [00:15:30] another top government official who so fundamentally changed his mind about a policy that he had helped put in place, and who took so many personal risks to try to expose what he had come to see as not just a mistaken war, but actually a criminal war.
Nick Capodice: Now, the story of the Pentagon Papers and the subsequent Supreme Court case dealing with them is big, fast, fascinating, and deserves its own episode, which I hope we [00:16:00] get to. But for today, we are focused on how Ellsberg leaked the papers and what his work meant for whistleblowers who came after.
Hannah McCarthy: How did Ellsberg fundamentally change his mind?
Chris Appy: Ellsberg had been deeply involved in nuclear policy as an insider, first at the Rand Corporation, a think tank largely funded then by the Air Force and primarily working on nuclear strategy. And as with the Vietnam War, early in his career, [00:16:30] he had been a proponent of many of these policies and over time came to view our nuclear policies and nuclear weapons as general as a fundamental existential threat to humanity that must be faced and overcome.
Nick Capodice: In 1967, Secretary of Defense Robert McNamara commissioned a study about the US's involvement in Vietnam. Ellsberg was part of the research team, and he was disturbed by the conclusion of the study, [00:17:00] which showed that for years the US government escalated an increasingly unwinnable war and concealed the facts from Congress and the American people. Ellsberg reached a breaking point.
Chris Appy: Ellsberg remembers this is in August of 1969, going to the men's room and sobbing uncontrollably with a sense of great guilt that this war was eating [00:17:30] up our young, both by sending people to fight and die in Vietnam, and by relying on young activists to try to bring it to an end. It was at that point he asked himself, well, what might I do if I were willing to sacrifice my career and even perhaps serve time in prison? So he then began to think, well, I've got access to these top secret documents. What if I were to try to get them into the public record? Might that make some difference [00:18:00] in shortening the war?
Nick Capodice: And this happened before the passage of the Whistleblower Protection Act. Daniel Ellsberg expected to be imprisoned for releasing the Pentagon Papers. All he knew is he had to blow the whistle.
Archival: I could no longer cooperate in concealing this information from the American public. I did this clearly at my own jeopardy, and I am prepared to answer to all the consequences of [00:18:30] these decisions.
Nick Capodice: So Ellsberg hands the goods off to the press. The government tries to stop the press from publishing, and ultimately the Supreme Court says, no First Amendment. You can't stop them. The American people get the truth. But Ellsberg, he is facing 12 felony counts, including violation of the Espionage Act. And [00:19:00] this is the first time that the Espionage Act was used against a whistleblower for revealing classified information.
Chris Appy: And what makes it particularly difficult when you are indicted under the Espionage Act is that judges don't allow you to explain your motivations. All the prosecution has to demonstrate is that you did, in fact, retain these papers and transfer them to others. They don't need to know about your motives, which were to expose wrongdoing [00:19:30] and even illegal activities, and to make the case that it should never be a crime to expose a crime.
Hannah McCarthy: Wait a minute. Did Ellsberg get convicted?
Nick Capodice: No, he did not. Then President Richard Nixon wanted to dig up dirt on Ellsberg. So he sent in his plumbers.
Hannah McCarthy: His plumbers?
Nick Capodice: His plumbers, the people tasked with plugging the leaks coming out of the Nixon administration. The plumbers were not super [00:20:00] law abiding.
Chris Appy: So-called plumbers broke into Ellsberg's psychiatrist office. And that fact, and others like illegal wiretapping of Ellsberg, was revealed in April of 1973 while the trial was still going on. So the judge in that case really had very little recourse other than to dismiss the trial. And so we don't know how the jury would have decided the case. But in any event, it did mean that although Ellsberg's career was effectively sabotaged, [00:20:30] he did not serve any time in prison.
Nick Capodice: Now, Ellsberg died in 2023, but he devoted his life to advocating for modern day whistleblowers like Edward Snowden, like Chelsea manning. Now, Snowden and Manning were in the news quite a bit a while ago. If you don't know about it, look it up. But here's what Ellsberg had to say about them.
Archival: Well, I identify more with Chelsea manning and with Edward [00:21:00] Snowden than with any other people on Earth. Uh, there we all come from very different backgrounds, different ages, different personalities, but we all faced the same question, which is who will put this information out if I don't? And each of us came to the conclusion that this information that the public had to know, um, would have to be put out by us, by ourselves because no one else was going to do [00:21:30] it. I've been urging.
Nick Capodice: People the famous Whistleblowers Club is a pretty small one, comprising people who took immense risks and faced immense consequences. And Daniel Ellsberg is credited with blazing the trail.
Danielle Brian: I think historically it's been a fact that without Dan Ellsberg, the Vietnam War may well have gone on for many more years. But that changed the course of history.
Nick Capodice: Before we wrap up, because it might not be totally responsible to end [00:22:00] on a whistleblower hero's journey, I want to share a piece of advice that Danielle shared with me.
Danielle Brian: My first advice to anyone who is considering being a whistleblower is to really think twice, because rarely does a person who takes that brave step land on their feet with their job intact, with their family intact. So I just want to be honest with them that this is tremendously risky.
Nick Capodice: Even [00:22:30] with protections in place, even if you do it exactly right, even if you follow the letter of the law, whistleblowing is not a particularly safe thing to do. And Danielle sees a future where the spilling of government secrets could become all but impossible.
Danielle Brian: And I will say that one of the things that I'm most worried about as I look at the next year or so, is that former President Trump has [00:23:00] talked about, if he were reelected on day one, he would create a change in the system of government employment. It's what is called schedule F, which sounds kind of just administrative, but what it does is it strips those whistleblower protections that we already have in place because it will remove their status of all the policy making government employees as professional, merit based, protected class of employees and move them [00:23:30] to essentially political appointees, which have certainly no whistleblower protections.
Hannah McCarthy: Nick, one last thing. Um, regardless of what the future does hold, I feel like I've got something pretty telling, given the tension between what the government wants us to know and what the rare whistleblower tries to make public. And I don't always do this, but for fun, just trying to figure out another [00:24:00] word for whistleblower. I, uh, consulted Merriam-Webster.
Nick Capodice: Are we in a commencement speech for eighth grade? You checked the dictionary?
Hannah McCarthy: I swear, this is not a phoning in my high school essay moment. I was just curious.
Nick Capodice: May I? All right, go for it.
Hannah McCarthy: Uh, synonyms include. Rat. Snitch. Spy. Tattler. Squealer. Fink. Narc. Stoolie. [00:24:30] I mean, like, even the gentler ones. Informant, for example, are still pretty negative. Which I think really gestures to the overall point that people don't trust secret spillers.
Nick Capodice: You know, Hannah, I think it will always be true that telling a big Ole secret will make you a pariah in someone's eyes. You just need to figure out if this spill [00:25:00] is worth the mess.
Hannah McCarthy: That does it for this episode. It was produced by Catherine Hurley, [00:25:30] our summer intern who will one day rule us all. Actually, Catherine, why don't you take over?
Catherine Hurley: This episode was produced by me, Catherine Hurley, with Hannah McCarthy and Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoie is our executive producer. Music. In this episode by Blue Dot Sessions, Dusty Decks, the Grateful seven, Amber glow, Taj jokes, major tweaks, T Marie and OTE. If you have questions about American [00:26:00] democracy, you can ask them at our website, civics101podcast.org. While you're there, you can listen to every other episode we've ever made. There are a lot of them. Civics 101 is a production of NHPR, New Hampshire Public Radio.