warning Hi, we've moved to USCANNENBERGMEDIA.COM. Visit us there!

Neon Tommy - Annenberg digital news

Whistleblowers Have Some Protection, If They Leak To The Right People

Paresh Dave |
July 27, 2010 | 4:58 p.m. PDT

Staff Reporter

Julian Assange, WikiLeaks (Creative Commons)
Julian Assange, WikiLeaks (Creative Commons)
Whoever leaked the "Afghan War Logs" made a critical mistake by choosing to provide the information to WikiLeaks.

The Pentagon has launched an investigation to determine the source of the disclosure of more than 100,000 documents about the War in Afghanistan. A Pentagon spokesperson said Tuesday  that Pfc. Bradley Manning—who is alleged to have leaked the “Collateral Damage” video to WikiLeaks earlier this year—is a person of interest in this case. Military computer analysts are reportedly trying to figure out if the documents now widely available on the Internet passed through Manning's computer.

Meanwhile, Manning has been detained in Kuwait by the U.S. government since June for "delivering national defense information to an unauthorized source." As Neon Tommy reported Tuesday, it's still unclear whether or not Manning also provided WikiLeaks with the war logs.

Manning or not, the whistleblower would likely not be facing prosecution if he or she had transferred the files to a member of Congress instead of a media organization.

The Military Whistleblower Act provides some protections to individuals in the Armed Forces who share information with members of Congress or the Inspector General. Similar protections apply to civilian federal employees under a 1989 law.

Military personnel are allowed to disclose to members of Congress concerns about violations of laws or regulations, mismanagement, gross waste of funds or other resources, abuses of authority or significant dangers to public health or safety.

Because such communication is considered protected, the whistleblower can't be the subject of either adverse personnel action such as a demotion or non-action if a promotion or raise was scheduled. A “disinterested observer” should be able to reasonably conclude that the key facts known and readily inferred by the whistleblower are evidence of government wrongdoing.

The problem, according to Richard Renner, the legal director at the National Whistleblowers Center, is that not everyone enlisted in the military knows or understands all of these protections.

In a post on the NWC's blog last month, Renner suggested that service members who are willing to leak information should first contact a lawyer. Renner said that the NWC receives about 10 requests a day for legal help from people in various professions across the world. Most of them ask for help after they experience retaliation for blowing the whistle. Few people search for advice before blowing the whistle, but Renner said they would benefit if they did. Attorney-client privileges make the communications with lawyers confidential.

Had Manning sought out such assistance before going to WikiLeaks, there's a possibility he could still be living comfortably in the United States.

Renner said that for even those who know about whistleblower laws, there's some protections missing.

Neither military members nor civilians are able to file private suits should they suffer any damages because of their actions. Members of the military have to take disputes to military court to keep their records clean, but they can't receive any monetary damages. Federal civilian employees are forced to appeal any negative decisions by superiors to the Merit Systems Protection Board.

Renner said the MSPB sides with the federal government 98 percent of the time, providing “minuscule” hope to government whistleblowers.

However, one of the most recent rulings by the MSPB relating to the federal Whistleblower Protection Act was decided in favor of a civilian in the Army. In the case, Harroll Ingram told two of his superiors that a lieutenant colonel was acting unethically. The board ruled his communication with his superiors was protected and remanded his case to an administrative judge to decide if Ingram deserves any remedy.

Not everyone is as lucky. One civilian in the Air Force lost his security clearance and access to secure areas because he spoke to members of Congress and a newspaper about life-threatening maintenance problems with some planes. He still has a job,  but the Air Force says he's “mentally unstable” and “suicidal.”

Renner said the NWC is pushing for broader protections (see House Committee Considers) that would make it safer for individuals to share secret information.

Asked if the media should be included alongside Congress and the Inspector General as a protected recipient of evidence, Renner said it should because the media is a traditional way people can petition government.

WikiLeaks founder Julian Assange said Monday that the release of the war logs would energize more people to disclose wrongdoing in their places of employment.

For those working at financial institutions, the Wall Street Reform law recently signed by President Obama brings them new protections. Renner said there is a good patchwork of laws protecting employees in the fields of transportation, corporate accounting and consumer products. Various states have laws protecting other employees. On the other hand, Renner categorized as weak the protections for environmental and workplace safety whistleblowers. He added that many workers in the health care industry don't even have the slightest federal protection.

But government employees, civilian and military, should take a look at the handful of protections offered to them before sending data off to WikiLeaks. Though Renner says the shields are not the strongest, they do offer the possibility of providing a safer situation for whistleblowers.

House Committee Considers Extending Protections For Federal Whistleblowers

Federal government employees who are stripped of their security clearance for disclosing evidence of government wrongdoing could receive protection under a bill that will be marked-up in the House Committee for Oversight and Government Reform on Wednesday.

However with so many larger issues to tackle and the November elections in sight, the bill is unlikely to make it out of committee before the current Congressional ends at the end of the year.

The 2007 version of the bill also failed to pass during the previous Congressional session.

The bill would for the first time protect disclosures made in the course of an employee's duties, prohibit nondisclosure agreements from being forced on whistleblowers and ban the suspension or revocation of a security clearance. Investigations into whistleblowers would also be curtailed.

Protection would be delivered to employees of national security agencies, Transportation Security Administration employees, those working for federal researchers and government contractors.

The companion bill in the Senate offers even broader enhancements, such as giving protection to prospective federal employees.

Rep. Diane Watson (D-CA), who represents the 33rd Congressional District (the Los Angeles area around the University of Southern California), is among the members of the House committee that will look at the enhancement bill.

Watson's legislative deputy, Charles Stewart, said Watson supports adequate legal protections for whistleblowers.

“Rep. Watson believes that sunshine heals, therefore whistleblower protections are part of her belief that transparency in government is beneficial to our democratic process,” he said.

The bill, though, would not shed any extra light on the military.

Stewart said extending the protections offered to members of the military is much tougher than for civilians.

“There's a tremendous intrinsic resistance to anything that militates against hierarchal flow of information in the military,” he said. “We can make incremental progress in bringing more transparency in the military, but it's often the last institution to make changes in conduct.”

To reach reporter Paresh Dave, click here.

Follow Paresh Dave on Twitter: @peard33


NOTE: Edited for clarity on July 29. The original version of this article stated that about 10 people contact the NWC each day before blowing the whistle. In fact, most contact the organization after the fact.



Craig Gillespie directed this true story about "the most daring rescue mission in the history of the U.S. Coast Guard.”

Watch USC Annenberg Media's live State of the Union recap and analysis here.