Their names are now infamous: Mark Felt, Daniel Ellsberg, Linda Trip, and Bradley Manning. To some, they are heroes who disclosed vital information that helped preserve our democracy, yet to others, they were villains who endangered the very security of the United States.
Recently, DOD Unauthorized Disclosure Program Management Office (UDPMO) Chief Henry Nelson answered questions from his Defense Counterintelligence and Security Agency (DCSA) office about how to draw the line between an “unauthorized disclosure” and whistleblowing. The former is seen as criminal, whereas the latter can be heralded as stopping potential criminal acts by those in power. What they share in common is that each involves those Americans who are entrusted with classified and controlled unclassified information (CUI).
Nelson shared, “DOD civilians, service members and contractors are privy to some of the most sensitive and closely held information. It is a violation of law and of the oath of office to divulge, in any fashion, non-public DOD information – classified or controlled unclassified – to anyone without the required security clearance, specific need to know and a lawful government purpose. By definition, this would be an unauthorized disclosure. Divulging information in violation of these precepts weakens the department’s ability to protect the security of the nation against its adversaries.”
Bobby McDonald, professor of criminal justice at the University of New Haven noted that whistleblowing and unauthorized disclosures may seem close, but they are two different things.
“Unauthorized disclosure can be as simple as leaving a document on the desk, forgetting it in the copier, or discussing classified information at the elevator,” McDonald, who spent more than 20 years with the United States Secret Service, told ClearanceJobs. “However, it can also be criminal if you are sharing that information for nefarious purposes.”
That is different from whistleblowing.
“This is where someone provides the information that he or she believes needs to come out,” McDonald continued. “That can include gross mismanagement or waste and fraud, but the whistleblower also still often seeks to protect the information that is sensitive.”
In the latter case, many of those who become whistleblowers can become persona non grata warned McDonald, which is where the Whistleblower Protection Act of 1989 comes in. This was meant to protect “any disclosure of information” by federal government employees that they “reasonably believes evidences an activity constituting a violation of law, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to public health and safety.”
The law prohibits retaliation such as demotions, pay cuts, or dismissals for blowing the whistle and provides legal remedies to whistleblowers who experience such retaliation. It also allows whistleblowers to make their disclosures confidentially.
“It is a gutsy move to stand up for something to be investigated,” said McDonald.
Top 5 Cases of Whistleblowing Gone Wrong
And yet, there are those cases where seemingly “good intentions” didn’t pan out as planned, while in some cases ones’ ideology may have confused what whistleblowing actually entails.
1. Wikileaks
In May 2019, WikiLeaks founder Julian Assange was charged in an 18-count superseding indictment for his role in what was one of the largest compromises of classified information in the history of the United States. The indictment alleged that Assange was complicit with Chelsea (née Bradley) Manning, a former intelligence analyst in the U.S. Army, in unlawfully obtaining and disclosing classified documents related to the national defense.
Assange had received more than 90,000 classified documents from Manning, which were then published on WikiLeaks. Those classified documents contained the unredacted names of human sources who provided information to United States forces in Iraq and Afghanistan, and to U.S. State Department diplomats around the world. According to the United States Department of Justice (DoJ), the human sources included local Afghans and Iraqis, journalists, religious leaders, human rights advocates, and political dissidents from repressive regimes
2. Edward Snowden
The former computer intelligence consultant had leaked highly classified information from the National Security Agency (NSA) in 2013, when he was an employee and subcontractor. The leaked documents revealed numerous global surveillance programs that were run by the NSA as well as the Five Eyes– the intelligence alliance that comprises Australia, Canada, New Zealand, the United Kingdom, and the United States.
Snowden is currently living in Russia after receiving temporary asylum. The United States had asked Snowden to return to face charges that include theft of government property, unauthorized communication of national defense information, and willful communication of classified intelligence to an unauthorized person.
3. Jeffrey Alexander Sterling
The former CIA officer was convicted in January 2015 by a federal jury in Alexandria, VA, of illegally disclosing national defense information and obstructing justice. He was convicted of violating the Espionage Act for revealing details about Operation Merlin, the covert operation to supply Iran with flawed nuclear warhead blueprints, to a journalist.
Sterling had become disgruntled with the agency, after filing a complaint with the CIA’s Equal Employment Office about management’s alleged racial discrimination practices. The CIA subsequently revoked Sterling’s authorization to receive or possess classified documents concerning the secret operation and placed him on administrative leave in March 2001, and after two failed settlement attempts, his contract with the agency was terminated on January 31, 2002.
Prosecutors said that Sterling, in retaliation for the CIA’s refusal to settle those actions on terms favorable to him, disclosed information concerning the classified operational program and the human asset to New York Times reporter James Risen. Sterling has maintained that his communications with Risen did not involve secret information.
4. Mark Whitacre
The American business executive was portrayed by Matt Damon in the dark comedy/drama film The Informant! The actual story certainly had the makings of something straight out of Hollywood. Whitacre, as president of the Decatur, Illinois-based BioProducts Division at Archer Daniels Midland (ADM), became the highest-level corporate executive in U.S. history to become a Federal Bureau of Investigation (FBI) whistleblower.
From 1992 to 1995, he acted as a cooperating witness for the FBI, which was investigating ADM for price-fixing. However, he was later sentenced to nine years in federal prison for embezzling $9.5 million from his company while he was assisting the investigation.
5. Linda Tripp
Perhaps no other individual is as polarizing as the American civil servant who played a prominent role in the Clinton-Lewinsky scandal of 1998. Tripp had secretly recorded confidential phone calls with former White House intern Monica Lewinsky about her relationship with President Bill Clinton. She had violated Maryland wiretap laws, but avoided charges by agreeing to hand over the tapes to the DOJ.
She was later fired from her job in the Pentagon, and claimed that the termination was vindictive, but the Clinton administration countered that she was a political appointee, who are normally asked to submit their resignation when a new administration takes over. In addition, Tripp sued the U.S. Department of Defense (DoD) and DOJ for releasing information from her security file – that included an arrest when she was 19 years old. The DoD inspector general investigated the leaks and found that the release of the information violated the Privacy Act of 1974. Tripp later reached a settlement with the federal government.
Defining the Whistleblower
The final consideration is who we can actually describe legally as whistleblowers.
“As a matter of law, one cannot be a whistleblower in the federal system if the individual unlawfully disclosed classified information to an unauthorized third party. Therefore, Snowdon is no whistleblower,” explained Mark S. Zaid, founding partner of the Mark S. Zaid, P.C.
“There is no exception, nor does the motive of the individual matter,” Zaid told ClearanceJobs. “Having represented national security whistleblowers for over a quarter of century, I have no qualms in stating that unlawful classified disclosures by individuals purporting to act in the public good actually undermine the existing system that actually can protect legitimate whistleblowers. There are numerous steps an individual can take to be a proper lawful whistleblower when classified information is involved. While I cannot predict success, the meaning of which subjectively differs from case to case, I know mechanisms exist that can be successfully navigated, especially with experienced legal counsel involved.”
