The Justice Department announced charges yesterday against a federal intelligence contractor, Reality Leigh Winner, for allegedly leaking classified information about Russia’s interference in the 2016 election to an online media outlet, the Intercept. Her arrest and prosecution marks the first criminal leak case under Donald Trump.
With Monday’s charges, Trump is making good on his promise to snuff out the leakers, who he has previously described as “low-lives” who will pay a “big price”. His disdain runs so deep that he reportedly asked former FBI director James Comey to consider imprisoning journalists who publish leaked information.
Reasonable people can disagree on the wisdom of unauthorized disclosures in the era of Trump, which are generally considered unlawful and in some cases punishable under the Espionage Act of 1917. But what is undeniable is that government employees and contractors who handle sensitive information work in an environment riddled with fear and suspicion, where paranoia runs rampant.
Consider Trump’s first 30 days in office. Numerous executive agencies, including the Environmental Protection Agency and the Department of Agriculture, issued non-disclosure agreements ordering their staff to cease external communications. In some cases, agency staff were told they couldn’t contact Congress and to limit their use of social media.
In February, White House spokesman Sean Spicer asked his staff to turn over their cellphones for inspection. Other officials later followed his example. Staffers across the government have also been warned about using encrypted apps such as Confide and Signal and were told that they violated the Presidential Records Act. One can only imagine what the witch-hunts look like today.
Trump’s war on transparency and the crack down under way in the White House also means that whistleblowing, lawful disclosures intended to serve the public interest, are likely being chilled as well.
Whistleblowing, or the protected sharing of information across the government and in some cases with the public regarding corruption, fraud, waste and abuse, has a long and storied history in our nation. In recent years, disclosures have helped improve aviation security, exposed veteran abuse and neglect, and halted the sale of weapons to Mexican drug cartels.
But under this administration, we run the risk that whistleblowers won’t come forward out of fear of personal, reputational and professional reprisal. Although the Whistleblower Protection Enhancement Act, a federal law signed in 2012, was intended to protect government employees who expose wrongdoing from retaliation and adverse employment actions, it’s incomplete and can easily be circumvented.
Loopholes in the law, along with an administration that prizes darkness and secrecy, means that those who witness wrongdoing are less likely to speak out. The more intensely Trump rejects transparency, the stronger our whistleblower protections must be.
Congress should start by rigorously enforcing the 2012 law, which explicitly states that whistleblower protections, free speech and other statutory rights supersede agency non-disclosure agreements. As evidenced by the gag orders that were circulated in the first few weeks of the administration, executive agencies appear to be flouting the law and ignoring this statute.
Without Congressional clarity and oversight, agency employees who discover potential misconduct may mistakenly believe that they are precluded from disclosure or choose to disclose the misconduct to their superiors, who are often incentivized to brush it aside.
In connection with this effort, Congress can enlist the support of Whistleblower Protection Ombudsmen, agency facilitators who under the 2012 law, are entrusted to help whisteblowers make lawful disclosures through appropriate channels. These ombudsmen have made a difference in in the past, and Congress must renew the provision that required their appointment, as it will sunset later this year. But these difference makers won’t be effective if Congress permits gag orders to proliferate, which violate the rights of whistleblowers.
In addition, whistleblower protections must extend to both contractors in the intelligence community and former government employees. From 2008 until 2012, intelligence community contractors were afforded strong whistleblower protections through the American Recovery and Reinvestment of 2009.
However, Congress later eliminated whistleblower protections for these contractors leaving them few options other than to remain silent or make anonymous leaks to the press. This is why Edward Snowden famously leaked information about the NSA collection programs to the media; apart from a broken, ineffectual Presidential Directive, Snowden didn’t have viable options. The intelligence community contractors of today face the same dilemma he did.
Government employees who blow the whistle and then leave public service deserve protection as well. Under current law, supervisors are permitted to retaliate against whistleblowers as soon as they leave civil service through blacklisting and poor reference checks. Whistleblowers who protect the public should be repaid in full and protected for the entirety of their careers.
Government employees who hold “sensitive” positions are acutely susceptible to retaliation as well. In a controversial 2014 decision, a federal court found that federal agencies have unfettered authority to revoke an individual’s eligibility to hold a position considered “sensitive”, a decision that is unreviewable and cannot be appealed. This means that supervisors can retaliate against whistleblowers who hold these positions by revoking their eligibility, leading to constructive discharge.
In a world where some level of national security clearance is a prerequisite to so many government jobs, this single exception can nullify the rule. Whistleblowers whose eligibility is revoked must have due process rights, including the ability to contest and appeal the revocation.
Finally, because employees are generally protected from professional retaliation if they allege wrongdoing, agencies and senior leadership now bully whistleblowers by referring them to prosecutors for criminal investigation. Take the VA Truth Tellers, a coalition of dozens of whistleblowers who have exposed abuse and neglect at Veterans Affairs medical facilities across the country. We learned in 2015 that every member of the group was under investigation.
The prospect of a lengthy criminal trial, legal fees and jail time are enough to make any whistleblower think twice before coming forward. In the wake of the VA Truth Tellers scandal and other reports, Congress later outlawed retaliatory investigations at the Department of Veterans Affairs, a practice that the rest of the government should follow.
In his short time in office, Trump has shown little regard for separation of powers, ethics rules, conflicts of interest and a free press. He prizes darkness over light, and concealment over disclosure. Whistleblowers play an important role in ensuring that our democracy is accountable, ethical and open. History shows us that they’re willing to help. But are we willing to help them?