Who we are vs who we have to be: on legal protection of whistleblowers

Deep down the political science major that I once was, lied the unsatisfied and relentless wish to be a historian. I have watched countless documentaries and read piles of books on World War II, ever since I was a little girl and could somewhat comprehend the ramification of 1933. Being European, this was mandatory learning. It culminated into a paper on German propaganda between 1933 and 1938 that I wrote in my Diplomatic History class in college. I have never stopped reading. I have never stopped watching. Thanks to this unparalleled education in France, Germany, and the United Kingdom, I can now detect patterns in political history. I can recognize language in political rhetoric. I can hear the bells ringing. I am equipped with an alarm capable of seeing the end of democracy for what it is. We always fool ourselves into thinking we are different, that our society is different, that our history is different, that we, as a people, are different. We are not. History does repeat itself. It makes us question where we stand when faced with tyranny and sadism. It makes us question if we have it in us to be freedom fighters. I come from a country of people rising up with rifles in the face of colonialism. But when government propaganda insinuates itself in discourse, are we capable – informed, educated – enough to see it for what it is and fight for the freedom and safety of all? And I mean safety, not security. Security is a blanket statement under which we hide the most disgusting of ideologies. We need to see them. We need to see hatred, bigotry, racism, misogyny, and intolerance for the plagues they are, and fight for all.

“… it’s important to listen to whistleblowers. This is why it’s important to a free democracy to hear and heed the warning calls.”

If you look at history, there are signs, massive red flags that alert us to the impending horror that befalls us if we do not stay alert. This is why it’s important to listen to whistleblowers. This is why it’s important to a free democracy to hear and heed the warning calls. A society that imprisons a citizen because he noticed human rights or civil rights violations is a sick, crumbling society.

The difference between being a whistleblower and releasing private or privy information has been narrowed down in a 2004 decision by the United States Court of Appeal, Ninth Circuit, in Garcetti v. Ceballos. The court decides if issue raised by the speaker was made “as a citizen upon matters of public concern.” However, it ruled in 2006 that government employees are not protected from retaliation from their employers, which is the main goal of enabling a whistleblower protection. A system heavily criticized by Sen. Chuck Grassley (R-IA), who claimed that it was penalizing the claimants, the merit board rules against whistleblowers at a rate of 98%.

John Kiriakou

John Kiriakou, a CIA veteran, blew said whistle on the Obama administration’s foreign policy. Sentenced to two and a half years of prison term for revealing the name of an undercover agent, Kiriakou was one of the first agents to confirm the use of waterboarding in interrogation techniques and to overtly and openly criticize the Obama administration’s destructive policies. Last week, Kiriakou told RT:

I took a strong stance and a very public one and that’s what got me into trouble. But honestly the only thing I would do differently is I would have hired an attorney before blowing the whistle. Otherwise I believe firmly even to this day I did the right thing.

In an era where the current administration releases a memo authorizing drone strikes on its own citizens, being a whistleblower requires courage, integrity, and the gift of being a conscience objector. Kiriakou has sided alongside civil rights lawyers, fundamental freedoms upholders, and non-governmental organisations to stand against antiquated foreign policy methods that recall the darker days of the Cold War, when the use of torture was justified by a paranoid domestic policy banning everything that could more or less resemble an alliance with the East. What John Kiriakou did is nothing short of heroic; risking his entire career and a solid prison sentence for having called out his own government – his own employers – for violating international law and domestic law, the man has yet to feel any regrets. A former classmate told the Washington Post Kiriakou felt “pretty upbeat” following his sentence.

“There is no room to be a conscience objector in modern day America, when the rule of law is clearly walked over “

It is very telling that the first charges brought against Kiriakou were made under the Espionage Act, a law dating back to 1917, when the United States were first involved in World War One. Constantly amended since, it is meant to deal with either military interference, or support of US enemies. Charging Kiriakou under the Espionage Act is clearly a means to express that whomever objects to the use of torture in the course of US-led military and intelligence operations becomes an enemy of the state. Despite a change in leadership in 2008, this goes to show that the Obama Administration has clearly not taken its distance from the Bush Administration’s infamous motto: “You are with us or against us”. There is no room to be a conscience objector in modern day America, when the rule of law is clearly walked over with every passing law in Congress and many whistleblowers are regarded as insane, political extremists, or dangerous totalitarians (!). However, it becomes clear that protecting whistleblowers – especially those working for government, an organization that is supposed to be more accountable than all – is absolutely necessary to protect the essential freedoms associated to a working democracy.

This is far from being a new idea. A Whistleblower Protection Enhancement Act has been submitted to the House in 2009 by Sen. Daniel Akaka (D-Hawaii) in the hope to extend the whistleblower protection to any disclosure of any violation of the law. Efforts to pass the law in the 107th, 108th, 109th and 110th Congress have all failed. Several versions of the already existing law passed the House in 2008, gaining even the support of then-Senator Barack Obama. A weak version proposed by the Senate in a lame-duck session of the 111th Congress had the misfortune to contain amendments that were going against the initial purpose of the law, ie. making it harder for federal employees to become whistleblowers. This goes to show the consistent trend in accepting disclosure of legal violations in corporate institutions, but restraining the possibility of calling out governmental actions, even decisions that are putting US citizens at risk, violating international law, or even constitutional law. With every possible version of the Whistleblower Protection Act, came the difficulty to pass amendments authorizing and facilitating the possibility to counter-examine and check government action, when in reality, a government that is not held accountable to any party and keeps its own agent sealed shut is a government that is likely to violate the law in the name of vague principles such as “national security”.

It is now up to us to decide which side we will stand on; if we are going to support whistleblowers and condemn their systematic sentencing for speaking up against despicable actions carried on by the very governing body we elected into office, or if we will idly stand by and trust blindly an organisation that has repeatedly failed us in the past. Far from this blog and this author to dive into conspiracy theories; far from us to be anti-government trustees, seeing failure and deceit at every turn. It is however part of the natural course of constitutional law to protect not only the people, by the people, for the people, but to keep check on those we allowed to guard our fundamental liberties. To decide where to stand on whistleblower protection is to decide what kind of citizenry we want to be a part of; what type of information we want to see shared, what kind of education we want to uphold. It is, to its very core, a question pertaining to the kind of society we want to live in, and whether or not we want to be a part of it.

“Whoever destroys the life of a single human being (…) it is as if he had destroyed an entire world; and whoever preserves the life of a single human being … it is as if he had preserved an entire world”. (Talmud, (Sanhedrin 4:9))