Tag Archives: Whistleblower Protection Act

Taking a broad view of National Whistleblower Appreciation Day

Cowardice asks the question, ‘Is it safe?’ Expediency asks the question, ‘Is it politic?’ Vanity asks the question, ‘Is it popular?’ But conscience asks the question, ‘Is it right?’  And there comes a time when   one must take a position that is neither safe, nor politic, nor popular but we must take it because our conscience tells us that it is right. —Martin Luther King, Jr.

Historically and generally speaking, the term “whistleblower” is most often applied to employees sharing tales of malfeasance in government entities or corporations. In recent months Minnesotans, particularly MPR listeners, have heard the term applied even more frequently to allegations of fraud and abuse in universities, corporations and ecclesiastical circles. Whatever the setting, the risky role of whistleblowers – and their need for legal protection — will be feted on National Whistleblower Appreciation Day Thursday, July 30, 2015.

The date commemorates the July 30, 1778 passage by the Continental Congress of the first whistleblower protection law. By passing that law the Founding Fathers resolved that “it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any persons in the service of these states, which may come to their knowledge.”

Robert Greenwald of Brave New Films as “a time to honor whistleblowers and push for the de-criminalization of truth telling describes national Whistleblower Appreciation Day.” Greenwald goes on to underscore that “whistleblowers are pioneers of change who risk everything – their livelihood, homes and freedom – to tell the truth in hopes of making the world a better place.”

It was activist Ralph Nader who first fashioned the term “whistle-blower,” derived from the familiar whistle that referees use to spot an illegal or foul play. Nader’s intent was to replace what he considered loaded pejorative terms such as “snitch” and “informer”, intentionally used to squelch unwelcome disclosure of workplace conditions.

Though much national  focus is on contemporary headline whistleblowers such as Edward Snowden and Chelsea Manning, the roster of individuals who have earned the title is as diverse as it is extensive. Politico’s photo gallery of famous and infamous whistleblowers offers a broad swath of examples, some better known for their cinematic portrayals than for their real-life persona. (http://www.politico.com/gallery/2013/06/10-famous-infamous-whistleblowers/001091-015380.html)

Though there are many legal permutations, the fundamental legislation generally cited is the Whistleblower Protection Act of 1989, Public Law 101-12 as amended. This is the federal law that protects federal whistleblowers who work for the government and report agency misconduct. The law states that “A federal agency violates the Whistleblower Protection Act if agency authorities take (or threaten to take) retaliatory personnel action against any employee or applicant because of disclosure of information by that employee or applicant. Whistleblowers‪ may file complaints that they believe reasonably evidence a violation of a law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.”

Clearly, the law refers to public information, federal agencies, employees and actions. Still, it sets a pace for industry, corporations, nonprofits, even faith-based entities, to pay heed to whistleblower protection.

In 2013 the effort to shield whistleblowers was strengthened by unanimous passage vote of a Senate Resolution offered by Senator Charles Grassley to establish the Senate Whistleblower Protection Caucus. The resolution requires that a bipartisan coalition of Senators be directed to “work to ensure whistleblowers in all sectors obtain meaningful protections.”

Key to implementation of the Senate Resolution is the National Whistleblower Center www.nationalwhistleblowersday.org), a prime organizer and sponsor of National Whistleblower Day. NWC promotes a bipartisan approach to whistleblower protection and plumbs the history of whistleblower law.

The National Whistleblower Legal Defense & Education Fund (NWLDEF) maintains a robust blog that traces over two decades of whistleblower laws and legal determinations. (http://www.whistleblowers.org/index.php?option=com_content&task=view&id=320&Itemid=141) The NWLDEF blog provides a reliable up-to-date report all things whistleblower-related.

A quick search discloses a wealth of resources for individuals seeking to know more about legal issues related to whistleblowers’ rights at the federal level. For example, the NWC offers a Guide to Federal Whistleblower Laws and Regulations, The Whistleblower’s Handbook, and a brief Know Your (Whistleblower) Rights FAQ that serves as a good starting point.

Needless to say, Minnesota law is a whole other issue. The State Law Library has updated its listing of whistleblower-related resources, including several cited in this post. Find that guide by clicking on http://mn.gov/lawlib/whistleblower.html.  Of special interest is Marshall Tannick’s lively narrative of Minnesota’s rather slow embrace of whistleblower protections. Though I am not legally trained or certified I was able to understand Tannick’s article. I was also able to comprehend much of the Bench & Bar 2013 review of whistleblower protection law in Minnesota (http://mnbenchbar.com/2013/09/the-canary-sings-again/)

Though most whistleblowers escape the headlines the threat of retribution silences many who know the facts but fear to blow the whistle.   The goal of National Whistleblower Day is to increase public awareness of the history, legal protections and unique role of whistleblowers, whatever the context, challenge, motivation or the impediments that inhibit whistleblower wannabes from taking action.

Whistleblowers and leaders from a mix of national organizations will be meeting in Washington, DC on National Whistleblower Appreciation Day for what is now identified as the Whistleblower Summit for Civil and Human Rights (http://whistleblowersummit.com/about/. Participants will continue efforts connect whistleblower and First Amendment advocates with each other and with the broader civil rights and global human rights movements. Theme of the 2015 Summit is Black Lives Matter—This Is the Movement!

Whistleblowers – from Ralph Nader to Daniel Ellsberg to Karen Silkwood to Coleen Rowley to Jennifer Hasselberger, along with countless anonymous truth-tellers – have changed history. Regardless of their work situation whistleblowers deserve protection from on-the-job retaliation and appreciation for a better-informed public.

National Whistleblower Appreciation Day ~Thursday, July 30, 2015

 

 

 

Wikileaks FAQs

Open the Government plays David in the federal David vs Goliath world of information access.  Once again the dynamo organization has risen to meet head on the digital dilemma de jour.  This time it’s Wikileaks and the flood those leaks unleash.  The FAQs about the Wikileaks controversy are totally on target.  With thanks we share the gift of information from Open the Government. Following is a memo received today:

OpenTheGovernment.org has worked with our partners to answer some of the questions transparency advocates are frequently asked about the WikiLeaks controversy, and have set up a site (https://sites.google.com/site/wikileaksandtransparency/ ) with some useful resources on the issue. While the answers below were developed with input and advice from a broad range of our partners, they do not represent and are not intended to be representative of a consensus view among our coalition partners, or the wider openness community. (View the FAQ’s online here: http://www.openthegovernment.org/article/articleview/458/)

WikiLeaks Frequently Asked Questions

Are the people working for WikiLeaks journalists?
As neither the Espionage Act, nor the First Amendment to the U.S. Constitution differentiates between journalists and any other person, the question of who does and does not qualify as a journalist is irrelevant to issues at the heart of the WikiLeaks controversy.

Could Bradley Manning, or other accused leakers, and WikiLeaks be prosecuted?
There is a clear distinction between Bradley Manning and WikiLeaks under the law. If the governments allegations are true, Spc. Bradley Manning and/or other government employees disclosed classified information to unauthorized persons. As a government official Spc. Manning had an obligation to protect both the classified information and sensitive intelligence sources, and the personal privacy of other third parties mentioned in government documents.

The government interprets the Espionage Act to grant wide discretion in prosecuting leaks of classified information. Whether or not it is fair and appropriate to prosecute Pfc. Manning for choosing to violate his duty as a government employee to protect properly classified information is an open question that ultimately rests on whether one thinks the public good in exposing the information outweighs the potential harm to national security and the violation of the rights of innocent third parties. As more facts regarding the matter are made public as the prosecution proceeds, this debate will continue.

The case against WikiLeaks for violation of the Espionage Act is a much tougher sale for the government to make. As noted in a report by the Congressional Research Service (CRS), Criminal Prohibitions on the Publication of Classified Defense Information, Congress’ research arm is “aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it.” The Department of Justice would be wading into untested waters to bring a case which could have disastrous ramifications. Prosecuting WikiLeaks would undoubtedly harm on our first amendment protections and have a chilling effect on the press. Further, were the prosecution to fail, we could expect Congress to revive old proposed amendments to the law that would likewise curb free speech and press rights, hurt information sharing and disclosure, and encourage more classification of information.

We hope that Congress will resist the impulse to move quickly and speak loudly in favor of a cautious, measured approach. On December 16, 2010, the House Judiciary Committee held a hearing on “The Espionage Act and the Legal and Constitutional Issues Raised by Wikileaks.” The overwhelming sentiment of the seven witnesses testifying at that hearing was that Congress should focus its efforts on preventing leaks from within, not punishing those who receive or even publish such information. The Committee, and others with jurisdiction, should heed that advice and, in fact, collect more information before proceeding. The initial attempt to address the Wikileaks, the SHIELD (Securing Human Intelligence and Enforcing Lawful Dissemination) Act introduced on December 2, 2010, in the Senate as S 4004, contains several clearly unconstitutional provisions.

What should be done to better protect our national security?
The best way to protect against disclosure of our national security secrets is to deal with the supply side of the equation: improving security on our information systems and reducing over-classification. The government has an obligation to protect classified information, and the fact Pfc. Manning or someone else was supposedly able to walk out of a secure area with a trove of classified national security information on a CD is unconscionable. The Administration should endeavor to ensure that any security measures implemented are platform, issue and personnel neutral to the greatest extent possible. In other words, there should be no possibility for selective application for political purposes. If information or materials require the highest security, that security must apply in all situations.

The Administration should also push agencies to complete the Fundamental Classification Guidance Review, a procedure required by President Obama’s Executive Order on Classified National Security Information (EO 13526). Every agency that classifies information is supposed to seek out, identify and remove classification requirements that are no longer valid. The disclosures on WikiLeaks prove that much of what the government says is classified is not much of a secret at all. This overclassified information clogs our systems and prevents us from protecting the real secrets nearly as well as we should.

What is the relationship between the WikiLeaks case and the pending Whistleblower Protection Act, S. 372?
S. 372 does not under any circumstances authorize public disclosures of classified information, or disclosures of sensitive sources and methods information to any unauthorized persons or entities. Indeed, S. 372 is an anti-leaks measure; absent it, media outlets and WikiLeaks will be the safest alternative for those who want to challenge fraud, waste and abuse without engaging in professional suicide. Congress should pass the Whistleblower Protection Enhancement Act to provide safe and credible channels for disclosing classified information, when none currently exists.

For more information on S. 372, see POGO’s fact sheet.

There is wide disagreement in the openness community as to whether or not Spc. Manning is a whistleblower: while much of the information he allegedly disclosed clearly benefits the public interest by exposing unnecessary official secrecy and potentially informing public debate about our government’s policies and actions, it is also argued that the sheer volume of the materials recklessly puts innocent parties at risk.

 

 

 

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