What Rights Do Whistle-Blowers Have? Short Answer: None

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A whistle-blower is someone who reports or exposes unethical or illegal behavior occurring in an institution while working for that institution. In a free, open state, whistle-blowers have safe, legally-protected avenues to expose wrongdoing and promote the public interest. In these states, whistle-blowers and journalists provide an invaluable public service for which they are protected and rewarded.

On the other hand, it is characteristic of closed, authoritarian states to do the opposite: demonize if not outright use the power of the state to punish whistle-blowers and the journalists who publish their stories.

In the United States, the last thirteen years have been disastrous for whistle-blower rights and investigative journalism, but especially the last 6 years. The Obama administration has been particularly vindictive toward government employees who fulfill their oaths to the Constitution by calling attention to illegal or unethical behavior.

Relatedly, the current administration has directly targeted investigative journalists and is attempting to establish a precedent of equating their work with espionage, one of the most severe crimes an American citizen can be charged with.

 

In 1919, two Yiddish-speaking socialists were jailed for urging Americans to resist the newly imposed draft and to stop the U.S. government from sending their men into a meaningless war between European empires –- a war they had immigrated to America to avoid. In a unanimous Supreme Court decision led by the opinion of Oliver Wendell Holmes, their censored warnings were equated to “shouting ‘fire’ in a crowded theater” and they were convicted under the 1917 Espionage Act.

The tragic irony of his opinion was not lost on Holmes, but only after the wholly unnecessary deaths of 117,000 Americans in the war. Those two Yiddish-speaking socialists were ultimately justified in warning their fellow countrymen of a very large fire in a very crowded theater.

It is often under the guise of necessity and security that oppressive laws are imposed, and often to the sound of unanimous, bipartisan applause. What’s worse, their nature often provides them unnatural longevity and it is soon forgotten what the original justification of their passage was.

The 1917 Espionage Act, passed for the alleged purpose of waging a  war in Europe, is still law today, though now used for an entirely different purpose: the suppression of whistle-blowers and the criminalization of journalism.

To judge the character of this law, or any unjust law for that matter, one need look no further than the people it has been used against: Victor Berger, Daniel Ellsberg, Chelsea Manning (previously known as Bradley Manning), and most recently Edward Snowden — all moral heroes who have done more for Americans and their freedoms than almost all of the politicians who have allowed this petulant law to remain in the books.

 

The Obama administration has gone beyond the already punitive letter of the law to brutally crack down on journalists and, in particular, their sources, but it was the George W. Bush administration that resurrected the law from its Nixon-induced dormancy.

The reinterpretation of the Espionage Act into a weapon to be used against inquiring citizens was formulated by Gabriel Schoenfeld, a fellow at the conservative Hudson Institute and longtime editor of Commentary Magazine. In 2006, he infamously called for the arrest and prosecution of several New York Times reporters and editors for their report on the then-top secret NSA domestic surveillance program initiated by the Patriot Act, a report the Times actually withheld from publication until after the 2004 presidential election.

American journalism likely dodged a fatal bullet in 2012 when Mitt Romney lost the presidential election — he picked Schoenfeld to be his senior advisor. No doubt, the Obama administration has been one of the least transparent and most hostile to journalists in modern American history, but by picking Schoenfeld, Romney made it clear that his administration would have further accelerated the suppression of whistle-blowers and journalists.

The most recent use of the Espionage Act of 1917 is simultaneously the most consequential in history and serves as the most damning evidence that the United States is no longer safe for whistle-blowers. Edward Snowden was charged under the Espionage Act after he voluntarily revealed himself to the public as the man who supplied journalists Glenn Greenwald and Laura Poitras with proof that the National Security Agency was both illegally spying on American citizens and lying to Congress on the scope and efficacy of its programs.

"It is absolutely certain Snowden would not have had the chance to make his case in front of a jury of his peers."Joshua Alvarez, IVN contributor
Snowden fled the country before revealing himself in Hong Kong. The fact he fled the country before coming out to the public has been used by the government to insinuate that he was a double agent (which he clearly is not by virtue of him sharing his information with the press), or a coward who doesn’t believe in the American justice system.

The man is no coward — an indefensible slander — but he has good reason to not trust the American justice system for his case. None other than Daniel Ellsberg, the man charged under the Espionage Act for releasing the Pentagon Papers, wrote in the Washington Post that fleeing the country was Snowden’s only choice. Whistle-blowers, he wrote, are no longer afforded the protections he had in 1971.

It is absolutely certain Snowden would not have had the chance to make his case in front of a jury of his peers, much less in the presence of the press. He absolutely would not have been allowed to post bail and speak to the media and his countrymen as Mr. Ellsberg did. He very likely would have been black-bagged into a similar dungeon like the one Ms. Manning occupies, in total isolation, cut off from the world, from family and friends, and from his countrymen who should know and deserve to know the extent of the surveillance police state that has been created in their name!

America is at a constitutional flashpoint, made even more explosive by the recent revelation by Senator Diane Feinstein that the CIA has spied on and committed espionage against Congress. With a spy agency like that, who needs to worry about the Chinese or Russians or Iranians?

The CIA and the NSA, the two most powerful intelligence bureaucracies in the U.S. government, are the biggest threat to Americans’ constitutional rights. Together, they are a spectacular combination of ineptness, authoritarianism, illegality, unconstitutionality, capriciousness, and self-validation. The U.S. would plainly be better off just starting over from scratch.

The dust will, at some point, settle, but left lying in a ditch would be the First Amendment, mutilated by an asterisk: journalism that reveals government secrets which prove wrongdoing is a punishable offense.

The Independent Voter Network is dedicated to providing political analysis, unfiltered news, and rational commentary in an effort to elevate the level of our public discourse.


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128 comments
Douglas Fields
Douglas Fields

dis-agree. biggest threat to American is Big Business and the politicians they have purchased.....

Eyeball Jackson
Eyeball Jackson

but is there an objective, easily definable difference? i think not.

Gary Knopp
Gary Knopp

There is a difference between a whistle blower and a traitor.

Jeff Reckson
Jeff Reckson

The biggest threat is issuing executive orders bypassing the constitution ... Now who could that be? Just saying

Anthony Brancato
Anthony Brancato

Thank G-d most people didn't agree with this 70 years ago - since if they had, we would today be speaking German east of the Mississippi, and Japanese west of it.

Porfirio Diaz
Porfirio Diaz

I can neither confirm nor deny me agreeing or disagreeing on the matter. By the way, they're listening to...everything.

Ernie Stoddard
Ernie Stoddard

If the Espionage Act of 1917 is wrong! Then it should be stricken down or rewritten.

Gregory Wilson
Gregory Wilson

The proper scope of the threat is all of DoD and all of CIA. Neither one is supposed to be permanent, so their leadership has to cook up fake threats to sustain funding. They will send all whistleblowers to jail if they can.

Justin T Gavry
Justin T Gavry

Agree, but there are really a dozen or more security bureaus which have so much power, it can only be abused, these dozen or more ultra powerful, un checkable agencies can only play their power and profit from it from ego to pocket. Diane Feinstein and John Brennan....our worst nightmares as a nation. They sold the constitution out for security and the control of the deep state

Ken Woolard
Ken Woolard

The GOP is Sick, Crazy, Evil and Working Against America !!! The Party of FOOLS !!! Welcome to Third World America Brought to by the Republican Do Nothing Party !!!

Janet Frey
Janet Frey

I do not believe one who is entrusted with national security work should be allowed to escape punishment and he steals the information from the government and spreads it all over the world. Nope, that's treason and can't be allowed.

Roger G. Bessette
Roger G. Bessette

None! when a whistleblower hands out secret Info. when on the Job. After is a different story.

Ronald Bain Basinger
Ronald Bain Basinger

Ken Nissen I see your point and agree, but looking at the action of the potus and all of Dc in the last 15, to 50 years, its easy to see why its hard to trust any thing associated with the feds

Eddie Walker
Eddie Walker

Disagree. The White House is the biggest.

Ricky R Jamison
Ricky R Jamison

Americans NOT being knowledgeable and believing everything the Political Parties spew without question is the real danger! Being informed, independent, challenging what you are told for truth is the only solution.

Mike Morell
Mike Morell

what most Americans do not realize is that NSA was set up to "spy" on us, to keep us safe from internal and external threats. In my opinion Snowden is a traitor, no telling how many people his actions have endangered.

Kenneth Tyler
Kenneth Tyler

The biggest threat to our constitutional rights are the amount of people who truly do not know what they are and in turn don't realize that they are being led along like sheep taking for granted what they are told is true

Timothy Pickard
Timothy Pickard

I disagree. The organizations are not the problem, the fact that they are run by political appointees is the problem, as that is how they are misused!

Clay Dalton
Clay Dalton

Yes but the irs is still#1. Just remember that the irs is how these scams get run on us all from both parties. End the irs and we should be able to stop much of this. Without any funding and a reason for collateral (your future wages) much of this would have to be eliminated. Currently the gop keeps us distracted with obamacare as the biggest threat so they can keep their beloved irs and it's funding for their scams wars and wastes thinking most of these things can be controlled. The irs really is the greatest threat.

Lulu Black
Lulu Black

just don't yell "fire" in a crowded theatre

Johnny Ritchie
Johnny Ritchie

If he had done the right thing, why did he run to our enemies arms with our National Security stolen info? If so, then prove it.