The irony of using secrecy to fight secrecy is not lost upon me. The Washington Post has an extremely important article on today's front page about WikiLeaks, a website that the Post describes a "cyber-whistleblower." I submit that WikiLeaks is, more accurately, one of the only safe mechamisms left through which individuals can safely blow the whistle. Legally, a whistleblower can go to the media, Congress or an interest group representative. But the recent indictment of Thomas Drake sends a powerful message that traditional safe-havens--authorized by the Whistleblower Protection Act and court interpretations thereof--are NOT SAFE.
Officially, 3-year-old WikiLeaks has no street address, phone number, employees, headquarters or P.O. Box.
As the WaPo reports,
[A]bout 30 times a day, someone submits a sensitive document to this cyber whistleblower to be posted online for all to see. Politicians' private e-mails, secret CIA reports, corporate memos, surveillance video. . .
Last month it released a graphic U.S. military video of a helicopter attack on a group of Iraqia in Baghdad that killed several civilians, including two Reuters employees--indisputably newsworthy. Next on deck: a video of civilian casualties in Afghanistan (coming soon).
WikiLeaks is an example of good use of technology. For all the technology that has been abused by the Bush administration, and now by Obama, WikiLeaks is using technology to become a global warrior against excessive and often illegal government secrecy. The irony is not lost on me that WikiLeaks is using Secrecy to fight Secrecy.
Why is this necessary? Although the Whistleblower Protection Act of 1989 specifically permits a government employee to make disclosures of any information
(A) which the employee . . . reasonably believes evidences --
(i) a violation of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety . . .
5 U.S.C. 2302(b)(8)(A)(i)-(ii), and prohibits retaliation for such disclosures, that has not stopped the government from mercilessly crucifying whistleblowers.
The Whistleblower Protection Act permits disclosure to be made not only to another official of the Executive branch, but to anyone--a reporter, a Member of Congress, an interest group, etc. This has been well-supported by case law. See Horton v. Department of Navy, 66 F.3d 279, 282 (Fed. Cir. 1995 (noting that disclosures to the press are protected disclosures); see also H.R. Rep. No. 100-413, at 12-13 (1988) (listing media as an independent entity such as Congress, to which disclosures may be made. In fact, it has been held that
complaints to a supervisor about the supervisor's own conduct are not disclosures covered by the WPA, but . . . disclosures to the press are protected.
Huffman v. Office of Personnel Management, 263 F.3d 1341, 1344, 1351 (Fed. Cir. 2001).
But people who have made (what we thought were anonymous) disclosures to the media, including myself (discovery abuse in the case of "American Taliban" John Walker Lindh) and Thomas Tamm (NSA illegal warrantless wiretapping) have been made targets of brutal federal criminal "leak investigations."
Bush liked to harass, intimidate and blacklist suspected whistleblowers, but Obama has taken it a step further. He just indicted former NSA official Thomas Drake, about whom I have written in the main-stream-media and in the blogosphere.
WikiLeaks does not contain the important facets of fact-checking that the media provides, the power of Congress to receive testimony and launch investigations, or the legal guidance that whistleblower protection groups like the Government Accountability Project where I work . . . it's the only safe harbor left for people who want to tell the truth.