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All the President’s Whistleblowers – The American Prospect

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An intelligence community whistleblower’s complaint pushed House Democrats into an impeachment inquiry last month, after revealing an improper quid pro quo exchange between President Donald Trump and President Volodymyr Zelensky of Ukraine. Trump immediately called the whistleblower “highly partisan” while questioning their intentions for coming forward. He escalated to demanding to know their identity, so they could be investigated—or dealt with the way spies used to be dealt with, as he said at a press conference at the United Nations. The original complaint has since been bolstered by a second whistleblower, represented by the same legal team, adding to the United States’ complex relationship with government whistleblowers.

The president and his defenders consistently conflate the definitions of whistleblowing and spying, clouding the difference between shedding light on wrongdoing and betraying the country. But Trump’s is not the first administration to interpret intelligence community whistleblowers in this way. While this administration has acted in unprecedented ways, ignoring the norms set before them, the accusations of treason are merely a Trumpian escalation of President Barack Obama’s war on whistleblowers.

While there are protected avenues for sharing concerns about government wrongdoing and abuse, seeking any outside channel for sharing secret information leaves a whistleblower vulnerable to being charged under the Espionage Act of 1917, which was written to prosecute spies against the United States during wartime. President Obama, a constitutional-law scholar, weaponized the Espionage Act against whistleblowers like no administration before.

“Under the Obama administration was a complete misuse of the Espionage Act to target whistleblowers and to create an example of these individuals who came forward to blow the whistle on really serious intelligence community abuses of power,” says Liz Hempowicz, director of public policy at the Project on Government Oversight. Only 13 people have been charged under the Espionage Act, but eight of these cases occurred during President Barack Obama’s two terms. None of those cases involved double agents or wartime security concerns, but instead leaking secure documents. Examples of these document leaks ranged from highly classified military intelligence to embarrassing candid diplomatic cables.

Anyone who comes forward to reveal wrongdoing, abuse of power, or corruption is a whistleblower, but when that whistleblowing happens within the government there are several protected channels to report this abuse created by the Whistleblower Protection Act of 1989 (WPA) and the Whistleblower Protection Enhancement Act of 2012 (WPEA). The Intelligence Community Whistleblower Protection Act of 1998 was specifically crafted for intelligence officers, and created, in 2010, the Office of the Intelligence Community Inspector General. It was ICIG Michael Atkinson who found Trump’s whistleblower complaint to be “credible” and of “urgent concern” in a notification letter to Acting Director of National Intelligence Joseph Maguire.

Most government whistleblowers fall under the WPA and WPEA, and they can disclose to several protected channels: a supervisor, Congress, a federal agency called the Office of Special Counsel, advocacy groups, or the press. Whistleblowers in this category are not revealing classified information, and their biggest incentive for using these channels is legal protection from termination or other retaliation because of blowing the whistle.

The intelligence community, being more secretive than the rest of the government, has separate and sometimes conflicting rules. Intelligence community whistleblowers should report complaints, only if they pertain to an “urgent concern,” to someone in their chain of command, which can be someone from a direct supervisor to the Inspector General of the Intelligence Community, according to a September letter from the Office of the Inspector General. The Office of Special Counsel could also accept disclosures. Another set of laws says that IC members can also go to congressional intelligence committees, a protected yet external disclosure channel. “The law requires the whistleblower (as an intelligence community member) to jump through many hoops,” Hempowicz says. “And some of the laws are conflicting.” Senator Ron Wyden (D-OR) has proposed provisions to harmonize the whistleblower reporting procedures for intelligence community members, but they have not yet been implemented.

President Obama made two presidential policy decrees in reaction to intelligence community whistleblowers during his tenure. Presidential Policy Decree 19 and Intelligence Community Directive 120 outlined protected reporting channels and prohibited retaliation. However, these were followed by more amendments to include intelligence community contractors, people who work for private companies with government security clearances. In the past, these employees could not be whistleblowers with the same legal protections, but they are now included and also make up a large portion of the intelligence community.

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Allison Stanger’s recently published book, Whistleblowers: Honesty in America From Washington to Trump, highlights the role of whistleblowers in American history, with special attention to the period after 9/11 and the rise of the internet. Stanger, a professor of international politics and economics at Middlebury College, shows in her book that most government whistleblowers (that we know about) in this century have come from the intelligence community, sharing confidential information at the same time as sharing their concerns.

John Kiriakou’s leaks brought attention to waterboarding. Edward Snowden’s leaks revealed and changed how the NSA collects data on American citizens. Reality Winner released NSA documents that described Russian attempts to influence the 2016 election. All three were charged under the Espionage Act, but also changed the national conversation by revealing this information for the first time, and in some cases changed laws on these respective government actions.

Adopted shortly after U.S. entry into World War I, the Espionage Act was intended to prosecute spies who endanger American national security. At the time, there were concerns about revealing information about military operations and recruitment. Famously, Julius and Ethel Rosenberg were sentenced to the electric chair and executed in 1953 for spying for the KGB during the Cold War. But practically everyone else tried under the Espionage Act has been a journalist’s source.

“Those prosecutions in my perspective were meant to make an example of these individuals,” says Hempowicz. “What we see is putting a thumb on the scale, making it less worth it for an individual to come forward and that starts from the beginning, where it’s like if I come forward my complaint is not going to be addressed and not be given the attention it deserves and I’m going to be retaliated against and I’m going to be forced out of the agency and I’m going to be prosecuted under the Espionage Act.”

Congress has tried to legislate protections for those who reveal wrongdoing, but working with sensitive U.S. intelligence or national-security information means working within a system with little outside accountability and transparency. Stanger says, “Because national security officials are meant to be protecting classified information, [whistleblowers] end up breaking the law to uphold the law.”

Trump’s whistleblower has not released any sensitive or classified information, and their complaint was written so it could be released publicly. Unlike the most well-known whistleblowers of the modern era, Trump’s whistleblower stuck to protected channels to voice concerns over the president’s actions. “The system is risky,” Stanger elaborates about the difficulties of blowing the whistle in the intelligence community. “Which is why I would say this complaint actually emerging through the proper channels, and the Inspector General has said that everything was done properly, in turning it over to Congress, is something of a miracle that the American public has the information and Congress can act on it. So we should be grateful for that, because the system is really biased against these complaints seeing the light of day. When you want to protect information it’s easier to see the whistleblower as an internal threat.”

Perhaps the most famous whistleblower of our era is Edward Snowden, who released highly classified information to the press about the NSA’s aggressive use of the Patriot Act to surveil the communication of U.S. citizens. Stanger says in her book that Snowden may be remembered as the first-ever “traitor-patriot.” Unlike Trump’s whistleblower, Snowden did not navigate the balance between exposing wrongdoing and using protected channels—believing that those channels would prove futile, he stole military and NSA documents and gave them to journalists after fleeing the U.S. and planning to evade U.S. extradition. But he did share valuable information with the American public, forcing Congress to update laws (albeit modestly). Most people didn’t know the extent of the NSA’s domestic spying program, which has not been proven as an effective way to stop terrorism attacks or identify unknown potential terrorists.

Snowden now lives in Moscow under political asylum, and cannot return to the U.S. without facing criminal charges. But his situation is positive when compared to other whistleblower-leakers, who have faced long prison sentences for exposing concern in the government. Hempowicz says, “They’re not becoming a whistleblower to avail themselves of these protections. They’re becoming a whistleblower because they are seeing something that is concerning enough to them that they’re willing to throw away their careers.” This can be true when reporting in protected channels as well as when leaking information to the press.

In creating charges against whistleblower-leakers, Presidents Obama and Trump have worked to separate the whistleblowers from the context of their complaints. “It’s much easier to silence an individual than it is to address a systemic problem in the federal government,” Hempowicz says. Whatever positive change a whistleblower-leaker might cause through their complaint is not factored into their punishments or charges under the Espionage Act—that is to say, there is no clause for moral exceptions. Stanger also says that focusing more on the individual than the complaint tinges the complaint with whatever the whistleblower can be shaded with: partisanship, bias, or other flaws.

Although all presidents in the post-9/11 era have used harsh language against whistleblowers and leakers, Trump’s whistleblowers have inspired a new level of rhetorical retaliation from the federal government. President Obama stated in 2012 that he would have a zero-tolerance policy on leaks, but Trump calls on his supporters and Twitter followers to share in his rage. It is unprecedented for the president to be the subject of a whistleblower complaint, and Trump’s rhetoric about the whistleblower is not subject to the same legal standards as any other administration official’s. But Hempowicz says, just because the president can do something does not mean he should. “The greatest assets these whistleblowers have right now is their anonymity,” she says. “Because that’s going to protect you a lot more from retaliation than the legal protections in place.”

This whistleblower represents the tipping point for the biggest domestic charge against a president, impeachment. However, the context of the complaint is part of a larger culture of whistleblowing against Trump’s actions in office. Since Trump’s inauguration, he’s battled for the respect of the intelligence community and career government officials, who have leaked to the press habitually. Stanger’s book revisits some of Trump’s past leakers, such as former FBI Director James Comey, who released internal memos about his meeting with Trump to The New York Times. Former National Security Advisor H.R. McMaster was fired over leaks about Trump’s March 20, 2018, phone call with Russian President Vladimir Putin, which showed NSC officials’ lack of confidence in Trump, as he complimented Putin for winning an unfair election despite being told not to. And there was also the viral, still-anonymous op-ed in The New York Times about the “secret resistance” in the White House, protecting the world from “parts of his agenda and his worst inclinations.”

None of those whistleblower-leakers have been charged under the Espionage Act, but all have been berated by President Trump. Together, they create a larger context for this most recent whistleblower complaint. “It’s a very dangerous situation,” Stanger says, “We’ve never before seen a president who the intelligence community believes is a national security threat. We’ve never seen a president who has openly invited and supported foreign electoral interference. I think most Americans can see we don’t want foreigners electing our officials; we want Americans electing American officials. History shows us that we can address the current crisis … and legislate through it.”

But when these complaints become public, it threatens to allow the intelligence community to make unilateral decisions about the fitness for office of a democratically elected president. This whistleblower appears to have leaked a legitimate complaint, and Trump’s willingness to operate outside established norms and laws is obvious; he sought foreign support for investigating his political enemies on live television, precisely what he’s accused of in the complaint. But as administrations change, other intelligence officials could decide the next president doesn’t meet with their approval either. Whatever the course of action with this whistleblower—whether they are right or wrong, believed or berated—it will shape the United States’ tension-filled whistleblower history. “The most important thing is to focus on the content of their complaint,” Stanger says, “Let the facts speak for themselves and let the people be the judge of what they mean.”

Several House committees have been hearing testimony from those willing to cooperate with the investigation into the complaint, and issuing subpoenas to those who won’t. And lawmakers are negotiating with the whistleblower’s lawyers to arrange a way for them to testify as well. However, the biggest concern remains keeping their identity protected. “It’s an unprecedented situation because you have the president inciting his supporters to retaliate, so this whistleblower is really in danger,” Stanger says. “You have the most powerful person in the United States, [who] thinks they’re unpatriotic. The American people really have to demand that this whistleblower be protected.”

While Trump believes this whistleblower is unpatriotic, there has not yet been any mention of the Espionage Act. The whistleblower followed all the correct procedures, has not leaked to the press or other unprotected channels, and for now, their identity is still secret. But like other modern whistleblowers, their voice could create major change in the country, including the possible first-ever removal from office of a president.

Hempowicz agrees that the whistleblower should not be vulnerable to attacks using the Espionage Act. “But does that mean they won’t? I don’t know. The assumption that because it wouldn’t be a good faith application of the Espionage Act and therefore we shouldn’t expect it from the Department of Justice, I think is maybe giving a little too much credit that they’re always acting with the appropriate legal judgment, and I don’t know if we can make that assumption.”

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