On Terrorism and Whistle-blowing

“U.S. Lets Whistle-Blowers Lose Jobs,” read the front page headline in this morning’s newspapers (USA Today, March 14, 2007). Should we be concerned?

Without government whistle-blowers who had the courage to go to the press, we wouldn’t know about the Watergate scandal in the 1970s or the Iran-Contra scandal in the 1980s. We wouldn’t know that the government tried to mislead the public by denying the existence of genocide in Bosnia and Rwanda in the 1990s. We wouldn’t know that the FBI ignored information about the 9/11 hijackers in 2001. We wouldn’t know that United States personnel engaged in inhumane practices at Abu Ghraib prison in Iraq. We wouldn’t know that the United States runs secret torture prisons in Eastern Europe. We wouldn’t know that the National Security Agency routinely engages in domestic wiretapping without warrants. We wouldn’t know that the levees supposed to protect New Orleans were inadequate. And we wouldn’t know that U.S. forces recently massacred innocent civilians at Haditha, Iraq. These disclosures initiated vital public debate and prompted important corrective actions and reforms.

Despite the federal and state laws that purport to facilitate such whistle-blowing for the public good, government whistleblowers routinely have faced loss of promotion, harassment, firing, and in some instances criminal prosecution when they have gone public with their important information. The Supreme Court has recently opined that the First Amendment does not apply to government whistleblowers; lower courts have required “irrefutable proof” of wrongdoing before the protections of the federal and state whistle-blowing statutes will apply; and none of the federal and State whistle-blowing protection laws consider journalists an appropriate whistle-blowing outlet, despite the power of the media to bring about change.

To remedy this situation, Federal and State whistle-blowing laws should be amended to protect government officials from retaliation who disclose information to the media if the whistleblower (1) reasonably believes that her allegations are accurate and that disclosure is necessary to avoid serious harm; and (2) has exhausted internal procedures unless she reasonably believes that disclosure would subject her to retaliation, or that the employer would conceal or destroy the evidence if alerted. This amendment will send a signal to government insiders that they are encouraged to report government wrongdoing to the press when necessary (evaluated under an objective standard) to prevent serious harm to the public. The harm in question can be physical (such as death, disease, or physical abuse), financial (such as loss of or damage to property), or psychological (such as invasion of privacy, or inducing terror). Lower level harms, such as injustice, deception, and waste, would under most circumstances not be sufficient to meet this standard. The requirement of reasonable belief about the accuracy of the claim will ensure that reckless whistleblowers are not protected. Finally, the requirement that the whistle-blower must first attempt to go through established channels before publicly revealing the information in question will preclude precipitous whistle-blowing or unnecessarily undermining the employer-employee relationship.

In sum, the government whistleblower who discloses information to the press should no longer be treated as an enemy of the state, but rather such a person is like the knock at the door that wakes one in a house on fire—unwelcome, but better than sleeping until the fire reaches the bed. For more on this issue, see my forthcoming article, “On Terrorism and Whistle-blowing,” to be published in the Case Journal of International Law (2007), available now at my SSRN site at: http://ssrn.com/author=372618

Michael P. Scharf Professor of Law and Director Frederick K. Cox Internaitonal Law Center

Case Western Reserve University School of Law