September 16, 2015
An invitation to a new PBS film on Daniel Ellsburg, the famous Pentagon Papers whistleblower, caught my eye. It reminded me that the term “whistleblower” has such widespread use. It’s useful from time to time to remind ourselves of the different nuances within that descriptive term.
As used in common speech, the term “whistleblower” refers to anyone who exposes misconduct. The term is more neutral and less pejorative than snitch or rat. It is generally thought to refer back to a policeman or a referee blowing a whistle to stop the action or directing a criminal to stand down. I have a favorite cartoon of a boy with his hands in the cookie jar. He expresses irritation at his sister, who has told their mother of the transgression. “Tattle-tale!” says the boy. “I prefer whistle-blower!” says the sister.
The term evokes different emotions from different quarters. Management of big companies tend to think of whistleblowers as disgruntled employees out for money. Others view whistleblowers as heroes who help rein in rampant fraud. But as in so many things, context is key. Motivations are complicated, and there are so many different types of laws that support and protect certain types of whistle-blowing conduct, the False Claims Act being perhaps the most well known. We make our living representing whistleblowers under certain specific statutes, and we often will re-direct prospective clients whose whistle-blowing needs a different forum. But we care a lot about all whistleblowers. We care because whistleblowers’ choices are intensely difficult, the stakes high, and the potential impact on their lives and others’ lives dramatic.
Richard Nixon referred to Daniel Ellsburg as “The Most Dangerous Man in America,” the name of the PBS award winning non-fiction film by the same title. Most of us, with the passage of time, look back and say that what Ellsburg did was a critical public service. He exposed the Pentagon’s systemic falsehoods about the state of the Vietnam War. Ellsburg endured criminal prosecution, stigmatization, the label traitor. Only later, with the passage of time, did the majority of the public come to accept that his actions were grounded in patriotism.
Similarly, Edward Snowden’s name evokes all manner of reaction in the current controversy over the scope of NSA spying. We don’t know enough about the content of his disclosures to weigh in on the claim by the government that he compromised national security by making his disclosures. Snowden too, faces criminal indictment and even a possible death sentence for exposing what he believed was illegal conduct on the part of the government.
We do know, however, that his revelations have already caused a change in some practices at the NSA. The agency scaled back the most obvious abuses. Snowden’s revelations also led to major complaints by U.S. companies whose phone networks and databases had been infiltrated by NSA computers without their knowledge. If the NSA can trick Google and Microsoft, do ordinary citizens have any prayer of privacy protection?
In time, will Snowden be viewed like Ellsburg, as someone who did us a huge favor, alerting us to the actions of our own government? Would any of this have come out had he chosen to merely report matters internally?
Neither Ellsburg nor Snowden’s case had anything to do with the False Claims Act, and there was and is no financial upside for them for reporting wrong-doing. Their whistle-blowing is unquestionably of the career-altering and life-endangering variety. Whatever one’s political stripes, there is no question that it takes an extraordinary amount of courage to stick out one’s neck in the name of the public good, taking on the most powerful and secretive arms of the federal government.