With events erupting all around us that concern whistleblowing, it bears repeating why we have whistleblowing laws and regulations for cleared personnel to begin with. It is not complicated. First of all, any government or clearance holding facility must give regular advisories about reporting fraud, waste, and abuse. They must brief not only employees with clearances, but staff and contractors on a defined, periodic basis. Companies and agencies should have time set aside time for briefings so that every person knows what to do if they are aware of wrongdoing. This includes not only employees, but support staff and contractors, as well, because even a maintenance worker might see classified material walk out the door illicitly. All need to know to whom they should report.
The indisputable motto since 9/11 has been “If you see something, say something.” Many assume any whistleblowing would easily fall into this area. Or would it? After all, in some offices you even see posters which remind employees, “You have a duty to report immediately anytime you see something wrong.” And what might that ‘something wrong’ be? That, too, is easy to know. It has a handy, memorized motto: “Report fraud, waste, and abuse.” So far, there is no difficulty among clearance holders, be they in the government or in private industry. These watchwords are indisputable, reasonable, and good guidance. So, then, why do we have to have whistleblower laws to begin with?
The Whistleblower and the Protective Measure
Whistleblowing is two-fold. There is the act itself – to rectify a perceived wrong. Then there is protection afforded the whistleblower who reports. This is because they are often retaliated against.
Whistleblowers tend to be one of two kinds. Genuine good employees make such reports. They want to perform their duty to protect what they are sworn to defend. They receive training on what to report, and how to do so. Others, however, can be mischief-makers themselves. They want to ‘get back’ at someone, hoping a false claim of abuse will punish their perceived adversary, end a program, or accomplish another such secret agenda. This is why it is important to have mechanisms in place to know the difference between types of reporting.
What doesn’t change, regardless of the reporter, is the second part of whistleblowing law: Protection from retaliation. Whole federal and corporate briefings exist to show how such reporters are protected. Why this is so should be evident. They will all be denounced as frauds by bad actors reported upon, whether they are truth-tellers or not. If I know who reported my wrongdoing, and I can retaliate, then in many, many cases retaliation occurs. But is not a man allowed to ‘confront his accuser’? Yes, in a court of law. What we are referring to here is a possible compromise of information, waste of valuable national resources, or abuse of power by someone not authorized to use such authority in a wrong way. These are evaluated for ‘probable cause’ and investigated by appropriate authorities. Only after charges are made can the court system come into play. Until then, it is an investigation.
Let’s look at a few examples. We are all aware of Daniel Ellsberg and the Pentagon Papers, Linda Tripp and the Clinton/Lewinsky scandal, and Edward Snowden, who released seas of documents to Wikileaks. We are talking here of properly reporting perceived fraud, waste, and abuse through established channels which are created to protect classified information or its use from abuse. Where should we begin? The National Security Industrial Security Operating Manual lists endless types of suspicious activities each company which performs classified work for the government must report. The reporters are directed to the appropriate agency or person to take that information. The report recipients evaluate it like any other report held in confidentiality. In fact, the whistleblower advisories are there to encourage reporters who might not report for fear of retaliation.
We need to remember that their own illicit activities would have brought down the Falcon and the Snowman espionage duo much earlier had their colleagues reported their misuse of the classified facility in which they worked. Government protective caveats cannot be used to protect or conceal private interests, nor can a position of trust be used to advance personal goals. We all know or have read about someone who misappropriated funds, enabled kickback schemes, or stole and sold classified information. After investigation, they were caught and paid the penalty. They lost their jobs and some even received jail time. Need I add that those who deliberately submit false reports can also lose their jobs or liberty if it is determined that they lied to or mislead official investigators? In any case, since it is obviously not known at the time of the report, such reports are all treated dispassionately by investigators seeking to determine the truth or falsehood of the claims. It is to assure that such claims of skullduggery and crime continue to be reported that the whistleblower is protected by law until proper, legal adjudication determines otherwise.
Retaliation against someone reporting illegal activity? There can be no retaliation. This is established by law, by regulation, and custom. There may be a criminal act identified, however, after proper investigation. An honest report, rendered without guile, can save the government billions of dollars and protect our national interests. An honest report can also be simply wrong, and nothing will happen as a result. If, however, a reporter employs fraud, deceit, or another illegal practice to enmesh someone in an alleged crime, hoping to hide behind whistleblower laws, they may face prosecution for their false accusation. The person about whom the claim was made cannot retaliate on his own, nor employ another to do so for him.
Whistleblower protections exist, and for good reason. How and to whom such reports are made are always part of the regular briefing. The briefing is required so you know how better to protect the secrets you are entrusted to keep. If you see something, you can say something…confidentially.
