Lynda Bryant Work
“Every country needs its whistleblowers. They are crucial to a healthy society. The employee who, in the public interest, has the independence of judgement and the personal courage to challenge malpractice or illegality is a kind of public hero.”
From the dawn of the United States, Congress has supported democracy and public integrity by protecting those who spoke up about abuses of power.
With the whistleblower being at the center of a national controversy, another reported to be coming forward, and the existential threats to the Donald Trump presidency they constitute – protections and process have come to the forefront of the situation.
The whistleblower, reportedly a US intelligence officer (believed to be a CIA analyst), became concerned about conversations Trump had with the president of Ukraine, and went through proper channels and reported his or her concerns to the intelligence community’s inspector.
The IG deemed it an “urgent concern” and reported it to acting Director of National Intelligence Joseph Maguire, who under law supposed to submit it to Congress. But, Maguire didn’t.
According to transcripts, during questioning before the House Intelligence Committee, Chairman Adam Schiff asked Maguire if he considered the complaint to be urgent.
“It was urgent and important,” Maguire responded. “But my job as the director of national intelligence was to comply with the whistle-blower protection act and adhere to the definition of urgent concern, which is a legal term.”
“So, you went to the subject of the complaint for advice first about whether you should provide the complaint to Congress?” Schiff asked.
The battle continues over the handling of the complaint and is now at the center of an impeachment inquiry of Trump.
And since the revelation of the complaint, Trump has attacked, berated, called the whistleblower names, issued threats and suggestions of retaliation, as well as those pursuing the investigation, and a $50,000 bounty put out to identify the whistleblower – all of which fall in conflict with the Whistleblower Act.
Despite the controversy and the future fallout, the whistleblower felt compelled to report concerns, just as others in the past who stepped up to report issues, and must have believed he or she was protecting some bigger, and in this case, the Constitution of the United States and democracy.
Whistleblowing dates back to the nation’s earliest days in spite of being a risky and controversial endeavor.
The first whistleblower protection was passed in 1778, according to Allison Stranger, professor at Middlebury College and author of “Whistleblowers: Honesty in America from Washington to Trump”.
He writes that “We’re a leader in this realm and whistleblowing is really in our DNA. Whistleblowing is as American as apple pie.”
Stranger says the first whistleblowers reported on the actions of Esek Hopkins in the late 1770s. Hopkins was a commodore in the U.S. Navy and reported to have been torturing British prisoners of war.
He would be removed from his post but would go on to retaliate against the whistleblowers who were thrown in jail until Congress intervened.
Whistleblowers have been reporting wrongdoing in government ever since, despite the risk of being a career-limiting phenomenon in the federal workforce, which discourages many from doing it.
In 1912, legislation was passed as an avenue for whistleblowers to communicate with members of Congress.
The Lloyd-LaFollete Act of 1912 was the first protective legislation adopted for whistleblowers and established procedures for the liberation of federal employees from their employer.
The act states that “the right of employees … to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.”
The intent is to provide direct feedback to Congress from federal employees, most of whom work within the executive branch related to job-specific issues that would be disclosed to the appropriate legislative committee, where members should hold the appropriate clearance.
The Civil Service Reform Act of 1978 was the second protection adopted that gave protection to federal employees, and later the Whistle Blower Protection Act of 1989 that would provide protections to individuals in the private sectors. Government workers who experience retaliation as a result of whistleblower retaliation may pursue defense against these actions.
Branches established to manage the federal workforce within the executive branch of government include the Merit Systems Protection Board,Office of Personnel Management and Federal Labor Relations Authority. These cover most of the 3 million federal workers.
The United States Office of Government Ethics is an independent agency within the executive branch of the Federal Government which is responsible for directing executive branch policies relating to the prevention of conflict of interest on the part of federal executive branch officers and employees.
The whistleblower laws and executive orders that specifically apply to U.S. intelligence community employees include the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA), Presidential Policy Directive 19, and the Intelligence Authorization Act for Fiscal Year 2014.
The Intelligence Community Whistleblower Protection Act provides a secure means for employees to report to Congress allegations regarding classified information. The law, which applies to both employees and contractors, requires the whistleblower to notify the agency head, through an Inspector General, before they can report an “urgent” concern to a congressional intelligence committee.
The United States Office of Special Counsel provides training for the managers of federal agencies on how to inform their employees as to whistleblower protections, as required by the Prohibited Personnel Practices Act (5 USC § 2302). Again, the law forbids retaliation for whistleblowing.
Within the military sector, there are also protections in the SECNAVINST 5370.7C: Military Whistleblower Reprisal Protection; 10 U.S.C. 1034, Military Whistleblower Act; and DoDD 7050.06 Department of Defense Directive.
As would be expected, the Trump administration is not receptive to whistleblowers.
One such whistleblower is Reality Winner, a former intelligence specialist in the United States Air Force. She was assigned to the 94th Intelligence Squadron, serving as a cryptologic linguist, specializing in languages spoken in Afghanistan.
Winner was accused of leaking classified information about how Russia’s GRU (Main Intelligence Directorate) planned and executed a cyberattack on at least one U.S. manufacturer of voting machines, VR Software.
Ms. Winner is the first political prisoner of the Trump presidency, has been incarcerated since August 23rd of last year and is serving a prison term of over five years. Her fatal misstep was contradicting Trump’s narrative that the demonstrated fact of Russia subverting our election process, is a “hoax”. This fits Trump’s pattern of punishing authentic patriots and giving aid and comfort to authoritarians.
According to the Courage Foundation, an international organization that supports whistleblowers who risk their lives and freedom to expose secrets the public has a right to know, “Those in the highest places disclose politically useful secret information to journalists all the time with complete impunity. Now that a lower-level contractor allegedly released information the government didn’t want out, she’ll feel the full force of the law.”
Whistleblowers are more prevalent than people realize. To name a few:
1931 – Herbert Yardley, US Ciper Bureau; ; crytologist 1933 – Smedley D. Butler, USMC; Retired U.S. Marines Corps Major General; 1933-34 – Herbert von Bose, Press Chief of Adolf Hitler’s conservative Vice-Chancellor Franz von Papen; 1942 – Jan Karski, Polish Home Army; 1966 – Peter Buxtun, US Public Health Service; 1966– Jeffrey Wigand, Brown & Williams; 1967 – JohnWhite, US Navy; 1971 – Daniel Ellsberg, US State Dept.; 1971 – Frank Serpico, NYPD; 1972, W. Mark Felt, otherwise known as Deep Throat during the Nixon scandals; 1973 – A. Ernest Fitzgerald, US Dept. of Defense; 1976 – Karen Silkwood, Kerr-McGee; 1985 – Ronald Glodstein, EBASCO Constructors Inc.; 1988 – Roland Gibeault, Genisco Technology; 1989 – Douglas D. Keeth, United Technologies Corporation; 1989-1991 – Myron Mehiman, Mobil; 1998 – Marc Hodler, International Olympic Committee; 1998 – Linda Tripp; Clinton Administration; 2001 – Jesslyn Radack, US Dept. of Justice; 2002 – Kathryn Bolkovoc, (American) UN International Police; 2013 – David Weber, US Securities and Exchange Commission. A list of key whistleblowers and descriptions can be found on Wikipedia and other historical websites.
The fact is, whistleblowers have helped advance or break scandals ranging from Enron to lies about the Vietnam War. Whistleblowers have inspired movies (“Erin Brockovich,” ”Silkwood,” ”Serpico,” “The Insider,” “The Whistleblower”) and countless books.
Dr. Jeffrey Wigand, exposed safety problems related to the tobacco industry. In 1995, Dr. Wigand achieved national prominence when he became the tobacco industry’s highest-ranking former executive to address public health and smoking issues.
To see his testimony before a subcommittee hearing on whistleblower protections on May 15, 2007: Click Here.
Due to much needed protections for whistleblowers, Sen. Chuck Grassley (R-Iowa), one of the founders and chairman of the bipartisan Senate Whistleblower Protection Caucus, joined Ron Wyden of Oregon (vice-chairman), Ron Johnson of Wisconsin, Mark Kirk of Illinois, Deb Fischer of Nebraska, Thom Tillis of North Carolina, Barbara Boxer of California, Claire McCaskill of Missouri, Tammy Baldwin of Wisconsin, and Ed Markey of Massachusetts, in authoring legislation to beef up protections for those who report misconduct.
“As a long-time whistleblower advocate, I constantly hear from federal whistleblowers who are fearful of retaliation,” said Grassley. “Some of them have already been targeted for their actions. Much can be done to improve the environment for whistleblowers and actually encourage more people to step forward when they encounter wrongdoing. This group will help inform and equip our Senate colleagues to respond to the needs of these patriotic citizens who play a vital role in protecting against fraud, waste and misconduct.”
Vice chairman Wyden said of whistleblowers:
“Sunlight is a powerful disinfectant. That’s been true for a long time and there is no better proof than whistleblowers who shine a light where others have not. Sadly, instead of being rewarded for speaking out, whistleblowers often face retaliation and serious career threats for doing what’s right, what’s necessary and for exposing practices that waste tax dollars and even risk public safety. We are all better off when whistleblowers can step forward without fear.”
The goal of the caucus is to foster bipartisan discussion on legislative issues affecting the treatment of whistleblowers and serve as a clearinghouse for current information on whistleblower developments of interest in the Senate. It will also coordinate training and consultation for any Senate office in need of assistance in responding to whistleblower disclosures or retaliation allegations.
Fast forwarding to the present Trump whistleblower, it should be no surprise there are concerned citizens who will report wrongdoing, especially in government and corporations where corruption and pursuit of individual gain is common.
Whistleblowers are not the vengeful and calculated people they are often painted to be, including the one involved in the current investigation.
According to Adam Swartz, a psychologist at Northwestern University’s Kellogg School of Management, “a lot of whistleblowers tend to be folks who feel they have some kind of higher calling. Some have a real sense of patriotism, some have a sense of even religiosity. They are people who feel some higher loyalty than the parochial loyalty they feel to the organization they belong to.”
“It isn’t surprising to me that the Trump-Ukraine whistleblower is from the intelligence community,” says Danielle Brian, executive director of the watchdog Project on Government Oversight. “Whistleblowers don’t plan to become whistleblowers. People think of whistleblowers as some kind of anarchist, but they tend to be more conservative than we realize and to see the world in terms of right and wrong.”