July 29, 2021

Holding leaders accountable is an American tradition worth preserving, and applauding lawlessness undermines that tradition.

July 29, 2021

By: Dan Meyer and Jason Foster

Two hundred and forty-three years ago, on July 30, 1778, the Continental Congress passed the world’s first whistleblower law. As that anniversary is commemorated on National Whistleblower Appreciation Day this Friday, it is important to remember the story of America’s first whistleblowers, which led to that law. They were 10 American sailors and marines who secretly gathered below deck on the USS Warren, in the midst of war, to sign a petition reporting the misconduct of their commanding officer to his bosses.

They risked being branded traitors to demand that their leaders do the right thing. What could be more American?

Today, this heritage is threatened by the hyper-partisan polarization that is infecting almost every public issue. Broad bipartisan support for protected whistleblowing is essential to preserve this American tradition, but too often that support is undermined by those who applaud lawbreakers.

There is a world of difference between illegal leaking and protected whistleblowing.

The Continental Congress decided that what those sailors and marines did on the USS Warren was worthy of protection rather than punishment. Yes, they went outside the chain of command, but they went to a higher authority, petitioning the Congress itself rather than leaking. The July 30, 1778 resolution reads:

Resolved, That it is the duty of all persons in the service of the United States, as well as all other the inhabitants thereof, to give the earliest information to Congress or 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. (Emphasis added).

In the nearly two-and-a-half centuries since the actions of those patriots were ratified with the first whistleblower law, we have developed a complex maze of legal protections and exceptions. It is vital that those seeking to blow the whistle today understand what is protected, what is not protected—and why.  Expert guidance can be crucial, which is why we are working together through Empower Oversight to help those with inside knowledge of wrongdoing report it to the proper authorities and help Americans hold those authorities accountable for doing something about it.

Advocates will gather again this year as yet another Presidential administration fails to hold a Rose Garden ceremony to celebrate whistleblowers. The sacrifices of public servants trying to uncover corruption at the heart of the government are worthy of celebration, but would-be whistleblowers need to educate themselves and seek help to act in a way that minimizes the pain and maximizes the protection while telling the truth and making a real difference.

The pendulum swings between extremes in the struggle to balance legitimate government needs to control certain information with legitimate disclosures of wrongdoing. The secrecy rationalized in the name of Cold War security eventually yielded, post-Watergate, to the peak of bipartisanship in whistleblowing and transparency in the late 1970s. But the Pentagon Papers and Watergate paradigm faded by the 1990s and the lawfulness of disclosures began to rise in prominence. The September 11th attacks put the thumb back on the scale for national security concerns, as in the Cold War.

Although journalists tout their “right to know,” the First Amendment provides little solace for sources who find themselves on the run or behind bars when they cross the line. Federal statutes criminalize disclosures like those of Daniel Ellsberg, and modern bureaucracies fight expertly to hide information from Congress like the report of Frank Spinney, praised as “the conscience of the Pentagon” by Senator Charles Grassley. If you’re thinking of blowing the whistle, it’s critical to know the difference between Edward Snowden and Dr. Fred Whitehurst.

Cheering illegal leaks as if they were protected whistleblowing weakens public support for whistleblower protections. And it does no good for those who find themselves on the wrong side of the law, like Daniel Hale, who was sentenced on Tuesday to 45 months in prison. Applause are of little help to those stuck in a cell.

Whistleblower success stories are too few and too far between. Even when a disclosure is dead on target, the whistleblower often suffers most in the process. The brutal truth is that whistleblowers need to understand that no one can protect them better than themselves. Whistleblowers and their advocates must armor up, study the rules, ask for guidance, and respect the rule of law. Know the information battlespace before you step on the game board. Find like-minded and trustworthy friends to support you for the long haul.

American patriots don’t simply cheer the homeland, right or wrong. They band together to improve it, just as those 10 sailors and marines did in 1777 by reporting their commanding officer to his boss. Oversight of the bureaucracy by the people themselves, exercising sovereign authority through their representatives in Congress assembled—that’s the American way.

Dan Meyer serves on the Whistleblower Advisory Panel for Empower Oversight. He is Managing Partner of Tully Rinckey PLLC’s Washington, D.C. office and a subject-matter expert on whistleblowing in the Intelligence Community (IC) who previously served as the IC Inspector General’s Executive Director for Whistleblowing & Source Protection.

Jason Foster is the Founder and President of Empower Oversight and formerly Chief Investigative Counsel to Senator Charles Grassley on the Senate Judiciary Committee.