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Protecting Whistleblowers since 1977

Slate: James Comey Is Not A Leaker. He Is A Whistleblower.

June 09, 2017
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One of the newest pieces of information from Thursday’s Senate Intelligence Committee hearing was actually more about former FBI Director James Comey than it was about Donald Trump. Comey testified that he encouraged a friend to disclose to the New York Times portions of his confidential memos documenting President Trump’s alleged request to Comey that he shut down the federal investigation of former National Security Adviser Michael Flynn. The president has responded with a full assault on Comey, with Trump’s personal lawyer accusing him of lying under oath and—without proof—claiming that Comey had admitted to “illegal” leaking of “classified information and privileged communications.” Trump kept up this attack on Friday, taking to his favorite medium to say, “WOW, Comey is a leaker!”

Meanwhile, NSA contractor Reality Winner is facing up to 10 years in jail because she allegedly mailed a classified document to the Intercept with evidence of an attack by Russian military intelligence operatives on the U.S. election system. What’s been missing from both of these conversations is a greater focus on what was being revealed, which should greatly influence how we think of and describe those making the revelations.

The shared NSA documents revealed that Russia had hacked a voting software supplier just days before the election. Comey’s memo, meanwhile, revealed an allegation that the president attempted to interfere in an ongoing FBI investigation—a charge the president now denies—potentially to the point of obstruction of justice. The media makes a mistake when it buys into the administration’s labeling of both these figures as leakers.

Leaking has become the default term for almost all unauthorized disclosures of information, classified or not, provided anonymously by employees to journalists. But not all leaked information has the same value. A more accurate description of both Comey’s and Winner’s disclosures is not leaking, but rather anonymous whistleblowing. The distinction matters.

Leaks are like junk food. Take the Trump administration’s palace intrigue: Is Jared Kushner on top today or is Steve Bannon? Will Ivanka actually speak out? Is Sean Spicer in timeout again? It’s fun to read, and often newsworthy, but its core purpose is for political ends—to embarrass a political rival or influence a policy agenda—or to curry favor with a journalist by offering an entertaining tidbit that will draw readers.

These leaks, sometimes of classified information, are often tolerated, facilitated, or encouraged by members of the political establishment. Those in power caught mishandling or releasing classified information for personal or political purposes—as did Gen. David Petraeus to his girlfriend, or President Trump to Russian diplomats, or Hillary Clinton to a private email server—typically experience minimal consequences. (Among this group, only Petraeus has so far faced criminal penalties, and he pleaded guilty to a lesser charge than initially expected and received probation.)

Disclosures of classified information that reveal serious breaches of public trust, meanwhile, are treated differently. Specifically, disclosures that are evidence of violations of laws, rules, or regulations; gross waste of funds; gross mismanagement; abuse of authority; a substantial and specific danger to public health or safety; or scientific censorship can often be treated as inappropriate “leaking.” But actually they constitute whistleblowing, whether made anonymously or not. Evidence of a Russian attack on our voting infrastructure likely meets this standard. So would obstruction of an FBI investigation by the president of the United States.

These issues are far more important than palace intrigue; they are forms of misconduct that, if unaddressed, profoundly threaten the public interest.

The law protects some of these types of public interest disclosures, with 59 federal whistleblower laws—and numerous state and local laws—protecting the rights of public and private employees to report, free from reprisal, evidence of wrongdoing that meets an objective standard. Even federal intelligence employees have internal mechanisms to blow the whistle using classified information. These free speech laws—passed with nearly unanimous, bipartisan support—demonstrate recognition that whistleblowers are the best, and sometimes the only, mechanisms to protect the public interest and promote the rule of law.

But the patchwork of whistleblower protection laws is far from perfect. Employment protections for federal intelligence whistleblowers are negligible. And since 2012, intelligence contractors like Winner have had neither whistleblower protections nor any effective or safe avenues to report classified evidence of serious problems.

Despite the public interest value of the information they disclose, whistleblowers are far more likely to suffer prosecution than political leakers. The lack of a public interest defense to whistleblowers charged with releasing classified information, combined with weak or nonexistent protections for intelligence whistleblowers, creates an environment where employees must choose to either stay silent—allowing government officials to ignore or cover up ongoing wrongdoing—or risk prosecution. This choice is untenable for employees and the public.

After being fired for doing his job investigating government corruption, Comey—like so many whistleblowers before him—recognized the likely futility of an independent investigation being launched into potentially one of the most serious abuses of power in history without the power of the press. Similarly, Winner reasonably believed she was exposing evidence of illegal activity on the part of the Russians to interfere with our elections, though she would have benefited from talking with an experienced whistleblower attorney before deciding to share a classified document with the Intercept.

Fear of futility—that speaking up won’t make a difference—and fear of reprisal are the two main reasons employees with evidence of serious wrongdoing stay silent. We should be grateful that Comey had the courage to use the press. Whistleblowers and the verifiable information they provide about wrongdoing, reported responsibly by the press, are essential to making our barely functional democratic system of checks and balances work.

But journalists can do even better. They need to be able to better insulate whistleblowers from reprisal. The Intercept’s journalists did not protect Winner’s anonymity. They could have reported the content of the document rather than publish the document itself. Despite not violating any journalistic norms by publishing a document that arrived anonymously, they still put their anonymous source at serious legal risk.

Journalists can also help by describing both Winner and Comey as whistleblowers rather than leakers. When whistleblowers are labeled leakers, it’s pejorative, designed to delegitimize both the source and the information. It takes away their moral high ground and disguises the fact that their disclosures were made to serve the public interest rather than fuel political gossip. By continuing to mislabel whistleblowers, journalists may be inadvertently chilling vulnerable employees who might otherwise fight corruption and try to help restore us to a functioning constitutional democracy.

Standing up for whistleblowers should be another part of journalistic advocacy—just like supporting access to public records, lobbying for shield laws, and decrying all assaults on reporters. Whistleblowers fight an uphill battle to hold the powerful accountable, as do their journalist allies. This is the relationship that can most effectively challenge autocratic leaders who chillingly label both journalists and whistleblowers as “enemies of the people.” Journalists undermine it at their own peril.

Author: 
Dana Gold
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