Whistleblowers
The Bottom Line
The clearest way to illustrate 1787’s position on the appropriate balance between the right of the public to Know versus National Security is to compare the leaking of the Pentagon Papers with Chelsea Manning, Edward Snowden and Julian Assange.
In 1971, Daniel Ellsberg released, without authorization, the Report of the Office of the Secretary of Defense Vietnam Task Force – otherwise known as the Pentagon Papers – a top-secret, seven-thousand-page Pentagon study of the U.S. government’s decision-making process during the Vietnam War. The documents detailed massive policy and leadership failures, and the revelations proved that the Johnson Administration lied to the public and the U.S. Congress about the scope of activity in Vietnam.
In our assessment, Ellsberg disclosed only information that the American people needed to know. To us, this is where the line should be drawn: appropriate discretion. Ellsberg’s leak didn’t include everything in the Vietnam report. He purposefully omitted, for example, everything concerning ongoing diplomatic efforts, including those underway to negotiate the safe release of prisoners of war.
In contrast, Chelsea Manning, Edward Snowden and Julian Assange spectacularly failed to use such discretion, and that is when they all crossed a bright line.
When it comes to “whistleblowing,” we are dealing with a wide spectrum of activities, so let’s distinguish between the different levels.
There is, of course, straightforward whistleblowing – much of which is protected by federal law. For example, the False Claims Act (the “Lincoln Law”) is a law that targets individuals and/or companies who defraud governmental programs. The law includes something called a qui tam provision, which allows private individuals to file suit on behalf of the government. Under the False Claims Act, the U.S. Department of Justice collected over $2.68 billion in settlements/judgments in FY2023 alone, bringing the total collected to over $75 billion since 1986.
Another example, the Occupational Safety & Health Administration’s (OSHA) Whistleblower Protection Program, protects “employees who report violations of various workplace safety and health, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws.”
For its part, the U.S. Securities and Exchange Commission (SEC) believes that people “who know of possible securities law violations can be among the most powerful weapons in the law enforcement arsenal of the Securities and Exchange Commission. Through their knowledge of the circumstances and individuals involved, whistleblowers can help the Commission identify possible fraud and other violations much earlier than might otherwise have been possible. That allows the Commission to minimize the harm to investors, better preserve the integrity of the United States' capital markets, and more swiftly hold accountable those responsible for unlawful conduct.”
This can be super lucrative for whistleblowers. The SEC is authorized by Congress “to provide monetary awards to eligible individuals who come forward with high-quality original information that leads to a Commission enforcement action in which over $1,000,000 in sanctions is ordered. The range for awards is between 10 percent and 30 percent of the money collected.”
Another type of whistleblowing involves ordinary people blowing extraordinary whistles. The most famous of these, Mark Felt (a.k.a. “Deep Throat”), brought the Watergate scandal to the public consciousness and ended Richard Nixon’s presidency.