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Whistleblowers Are Public Servants. We Must Protect Them.

There is no law protecting an intelligence community whistleblower's identity from disclosure or protecting them from retaliatory investigations. Congress can and must change that.
Kate Ruane,
Former Senior Legislative Counsel,
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November 15, 2019

President Trump and President Volodymyr Zelensky of Ukraine spoke on the phone. The president insists the call was “perfect.” Others are concerned that, during the call, the president intimated he would withhold financial aid appropriated to Ukraine unless the Ukrainian president agreed to investigate former-Vice President Joe Biden, a political rival of the president.

How do we even know about any of this? A government employee who knew of the phone call became concerned about the possibility that the president was improperly using his office for his own political gain, and blew the whistle. The public learned the content of the whistleblower’s allegations because another government employee leaked the story to the press. Once again, the American public benefited from the bravery of its public servants, risking their livelihoods, careers, and families to expose government waste, fraud, and abuse.

President Trump’s reaction has been both predictable and terrifying. Using his preferred method of official communication — Twitter — the president called the whistleblower a spy and suggested they should be treated as they would have been “in the old days,” presumably referring to execution. He called repeatedly for the whistleblower’s identity to be revealed, a well-worn tactic designed to intimidate the whistleblower and any other official that could provide support to their account. And Trump isn’t alone. Senator Rand Paul also called upon the media to reveal the whistleblower’s identity.

It’s worth wondering why these kinds of tactics are still permissible.

Sen. Paul has pointed out that nothing stops him from revealing the whistleblower’s identity. He’s right, and that’s a huge problem. It’s one of many big problems facing any public servant, but especially a national security and intelligence community member, who wants to report the waste, fraud, or abuse they witness in our government. Intelligence community whistleblowers currently have no access to independent and meaningful due process, while other federal employees do. There is no law protecting their identities from disclosure and they have no protections from retaliatory investigations.

Congress must fix these problems. That’s why the Project on Government Oversight, the ACLU and 15 other organizations, including the Government Accountability Project, and Whistleblowers of America, sent a letter to Congress this week calling for them to seize this moment to change the law for the better and to do everything in their power to protect the whistleblower’s identity.

And that’s just a start.

Increasing protections for whistleblowers that disclose through the available government processes is helpful, but it ignores whistleblowers that bring what they know directly to the public. Daniel Ellsberg, who disclosed the Pentagon Papers, and Edward Snowden, also risked their lives and careers to inform the public of massive abuses of government power. They deserve protection too.

They were both charged with violating the Espionage Act, which criminalizes unauthorized disclosures of classified information. That law makes no distinction between public servants that bring evidence of crimes occurring at the highest levels of government to journalists, and officials that steal government secrets and sell them to foreign spies. That makes no sense.

Luckily, the fix is simple. Congress should allow those accused of violating the Espionage Act to raise the defense that their disclosure served the public interest. That small change would mean a far more accountable government, because government employees that witness misdeeds would be empowered to say what they saw without fear of retaliation.  

Americans need and deserve information about what their government is doing, now more than ever. Congress must act to protect those within the government who blow the whistle.

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