Consequences of criminalizing whistleblowing.

Aug 31, 2013

In the wake of Chelsea (nee Bradley) Manning's sentence of 35 years in military prison for leaking the massive volume of documents now known as Cablegate to the media organization Wikileaks, there is now a hard as diamond legal precedent that criminalizes whistleblowing, the act of making evidence of misconduct, fraud, unethical, or illegal activity known. It is widely believed (often correctly so) that disclosing such activities to what are considered the proper channels will result in serious repercussions. It is also widely believed that such disclosures will have little to no positive effect because those reported on are often positioned in the chain of command such that little to nothing can be done about the allegations. Power is a privilege and an end unto itself.

Manning's conviction implies that whistleblowing is in itself an illegal activity. Even though there is an agency of the United States government dedicated to investigating and prosecuting wrongdoing reported by civil servants and contractors there is still a process that must be followed. That process takes time to run its course, which can amount to months or years. Months or years in which whistleblowers could potentially be charged with crimes (real or invented) before the OSC has a chance of carrying out the duties it is charged with. Duties such as investigating fraud and embezzlement or abuse of subordinates and possibly misuse of personal information.

Technically speaking, whistleblowing is supposed to be protected under federal law and enacting reprisals or outright retaliation against whistleblowers is illegal. It is entirely conceivable that, when faced of the prospect of being brought up on charges because they've been found out, bad actors within the government will file trumped up criminal charges against whistleblowers, neatly sidestepping the anti-reprisal laws. Charges like misappropriation of government funds (discovering wrongdoing on billable hours (which are basically the taxpayer's dime)), misuse of government computer systems under the Computer Fraud and Abuse Act (a statue which is so poorly written that incrementing a digit in a URL is technically a felony, so reading an incriminating document can certainly fall into this category), or disclosure of sensitive materials (overclassification of materials is a known problem with no clear answer in sight). Long before the bad actors can be brought to account the whistleblowers could be charged, brought to trial, and ruined if not convicted for trying to do the right thing.

It is my considered opinion that, at least within the federal sphere (and this includes contractors), the reporting of misconduct and wrongdoing is going to decline over the next several years. During this time it will be interesting to keep an eye on civilian and government bodies of law (as opposed to military law, which is a whole 'nother smoke) to see what transpires. While cases that are specifically whistleblowing will decline, cases against whistleblowers (though we won't necessarily know it) will increase somewhat. If all of the facts were known it would be interesting to cross-reference those cases against recorded instances of internal whistleblowing to see what patterns emerge. There is no reason to expect laws that are meant to protect whistleblowers to will be effective now or in the future. There is also a possibility that resignations will increase during the same period of time because it's much easier (and safer) to find someplace new to work than it is to try to change things from within.