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

by Joshua Alvarez, published

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.

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.

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