The Washington Post has a fascinating story today about PRISM, a program under which NSA and FBI reportedly are taking data (video, audio, pictures, etc., etc.) directly from the servers of nine leading internet companies, with more expected to join soon. We encourage you to read the article and join the public debate on the line between security versus liberty. What do you think will happen to the person that leaked the program’s existence?
Our firm represents many clients that work in areas related to national security and among those have been a number with claims of retaliation for whistleblowing, including for testifying to Congress. This gives us a special appreciation of the need for good information to fight the very real threats the country faces, while also persuading us that even well-intentioned government officials can do great harm in what they believe to be the national interest.
DHS has done a great job of reminding the public about the importance of reporting suspicious activity with its “If you see something, say something” campaign. DHS knows that many terrorist attacks, even of a great scale, could have been avoided if a member of the public had spoken up. The same is true for federal employees. Consider the Phoenix FBI agent whose recommendations to look into Bin Laden sending students to U.S. flights schools, if not ignored, might have prevented the September 11 disaster. See 9-11 Commission report, at 272. Whistleblowers often are insiders, the only ones with enough knowledge of what is happening to know just how dangerous to our freedom a situation is.
President Obama and Congress acknowledged the value of whistleblowing with the Whistleblower Protection Enhancement Act, signed into law in November 2012, which we previously have summarized. As a general rule, those working in agencies that do full-time national security work are not protected for going to the media (versus Congress or their agency’s Inspector General), while going public is protected for those in many other federal agencies, such as DHS. A whistleblower who informs a reporter about a program like PRISM risks his or her career and increasingly a risk of criminal prosecution. The Obama administration’s support of non-national-security whistleblowers has been matched by an unprecedented pursuit of criminal charges against those disclosing national security information.
A culture that does not tolerate whistleblowing collapses in on itself because everyone is afraid to admit things are not as wonderful as they appear. As two examples, when the curtain was pulled back on the old Soviet Union and on Saddam Hussein’s Iraq, a crumbling facade was revealed. It appears China may be headed the same direction, with reports on everything from grain production to military preparedness periodically falsified because of the punishment inflicted on those who admit things are not perfect. On the other hand, there are some secrets that almost all would agree are too valuable to be revealed; take for example, codes used to launch nuclear weapons.
The balance between protecting ourselves by non-disclosure of secrets and protecting ourselves by insider disclosure of wrongdoing is a tight rope our society will have to continue to walk. Whichever side of the debate your views may fall on, we encourage you to get informed and be a responsible part of the public discussion. There are few issues more important to ensuring we leave the next generation with a country worth preserving.
In the meantime, if you plan a disclosure on other than a national security issue, you are likely to be pleased with how the law has changed. Keep in mind: “If you see something, say something.” But if you are disclosing national security matters outside of your agency and Congress, the impact on the public debate may greatly magnified, but so are the risks your fan mail will reach you in prison cell.