Whistleblower

WHISTLEBLOWER. Whistleblowers often posed some of the most serious challenges to government and private industry by exposing malfeasance. The term, dating to the nineteenth century, refers to someone who warns others of a potential danger or actual wrong-doing by, literally, blowing a whistle. In modern times, “whistleblower” refers to a person or organization that draws public attention to illegal or illicit activity, commonly by government agencies or corporations. The earliest example is Benjamin Franklin, who in 1772 passed on confidential British documents to the colonial Massachusetts assembly that revealed wrong-doings of the governor in misleading the British Parliament. A few years later, during the American Revolution, naval officers Samuel Shaw and Richard Marven were dismissed and later sued for revealing the role of the Navy commander-in-chief in torturing British prisoners of war. Outraged, the Continental Congress passed the first whistleblower protection act. Enacted in July 1778, the act proclaims "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 officers or persons in the service of these states, which may come to their knowledge."

Since the mid-twentieth century, whistleblowers garnered considerable attention by publicizing government and corporate misdeeds. In 1966, Peter Buxtun, an employee of the U.S. Public Health Service, revealed the harm done by the forty-year Tuskegee Syphilis Experiment, which infected 600 African American men while telling them only that they were receiving free government health care. Daniel Ellsberg, a military analyst, in 1971 released to the New York Times a photocopy of a top-secret a Department of Defense study of U.S. military and political involvement in Vietnam since the end of World War II. The Pentagon Papers revealed the degree to which U.S. involvement in Vietnam had been kept from the public. Brought up on charges of conspiracy and espionage, Ellsberg escaped prosecution and sparked widespread interest in whistleblowing as a form of political activism. Meanwhile, an upsurge in media reporting encouraged its practice.

Since the 1970s, whistleblowers successfully targeted the drug industry for falsifying data concerning the efficacy or safety of medications or for engaging in price-fixing schemes. Former employees and executives exposed the manipulation of data regarding health and addiction to cigarettes conducted by the tobacco industry. Safety issues inside the nuclear power industry generated several well-publicized cases. The most famous, inspiration for a major Hollywood film, came from a chemical technician at a Kerr-McGee nuclear plant. In 1974, Karen Silkwood, working through the Oil, Chemical, and Atomic Workers Union, revealed the company’s flagrant violations of health and safety policies, particularly by the regular exposure of workers to plutonium.

As whistleblowing became more commonplace, new and revised legislation abetted their activity. The 1978 Civil Service Act added important statutory protections for federal workers. The 1989 Whistleblowers Protection Act expanded safeguards for workers in private industries. The U.S. Department of Labor, through the Occupational Safety and Health Administration, enforced nearly twenty statutes to thwart employer retaliation. However, the rights of workers in national security remained limited, specifically in regard to court access. Allowed to report abuse, fraud, or waste in their agencies, defense and intelligence employees, including workers in the Federal Bureau of Investigation, may face prosecution for releasing classified information.

Since 2010, Chelsea Manning and Edward Snowden became infamous as whistleblowers charged with espionage. Manning, a U.S. Army intelligence analyst, released documents, many published by WikiLeaks, focused on incidents in Iraq and Afghanistan detailing military operations kept secret from the American public. The Whistleblowers Protection Act did not protect Manning, who was convicted of violating the Espionage Act of 1917 and sentenced to thirty-five years in prison. Manning served nearly seven years, first at Quantico and later at Fort Leavenworth, Kansas, before President Barack Obama, in 2017, commuted her sentence. In 2013, Edward Snowden, a contractor with a private firm, turned over to The Guardian and the Washington Post, classified material that documented surveillance of private citizens, via phone or internet, by the National Security Agency. Charged with violating the Espionage Act, Snowden sought asylum in Russia where he became president of the Freedom of the Press Foundation, a non-profit founded to advance the public interest and to protect the rights of whistleblower journalists.

Whistleblowers played an increasingly important and visible role during the presidential administration of Donald J. Trump. On August 12, 2019, an anonymous whistleblower, presumed to be C.I.A. officer, issued a complaint that Trump, in a telephone conversation, used military aid to pressure the new Ukrainian president, Volodymyr Zelensky, to launch an inquiry into Democratic rival Joe Biden’s son Hunter, who served on the board of a Ukrainian gas company. Following up, the House of Representatives launched an investigation that, supplemented by corroborating evidence, resulted in Trump’s impeachment for abuse of power and obstruction of Congress in January 2020. Throughout his administration whistleblowers reported malfeasance in various federal agencies, including the Department of Health and Human Services during the coronavirus pandemic of that winter and spring. In April 2020, Dr. Rick Blight filed a whistleblower complaint following his sudden demotion at the Department of Health and Human Services, which he attributed to retaliation for disagreeing with the president’s advocacy of a potentially dangerous and untested anti-malaria drug in COVID-19 treatment. Nurses at Mt. Sinai Hospital in New York were among the first of many health workers to blow the whistle on critical shortages in protective gear in their workplace.

In 1988, three attorneys, Stephen M. Kohn, Michael D. Kohn, and David Calapinto, founded National Whistleblower Center (NWC) to secure and advance the legal rights of whistleblowers, advance legislation, and inform the public of their role in protecting democracy. The non-profit took as it first case the non-disclosure agreements required of employees at the Comanche nuclear power plant that prohibited them from raising safety concerns. In winning this case, the NWC set standards for the entire nuclear industry. The NWC later campaigned for the strengthened provisions in the 2012 Whistleblower Protection Enhancement Act that allow whistleblowers to collect compensatory damages. The NWC sponsors a legal defense fund, advocates policy, and stands behind the establishment of a National Whistleblower Day on July 30th. By 2020, the NWC identified several major initiatives, including accountability in coronavirus spending, protecting forests from the illegal timber trade, stopping corruption in the fossil fuel industry, and, especially crucial during the Trump Administration, protecting federal whistleblowers.

Kohn, Stephen Martin. The New Whistleblowers Handbook: A Step-to-Step Guide to Doing What Right and Protecting Yourself, 3rd ed. Guilford, Conn: Lyons Press, 2017.

Mueller, Tom. Crisis of Conscience: Whistleblowing in an Age of Fraud. New York: Riverhead Books, 2019.

Alison Stanger. Whistleblowers: Honesty in America from Washington to Trump. New Haven: Yale University Press, 2019.

National Whistleblower Center, https://www.whistleblowers.org