TIME: By Speaking Out, the Whistleblower Joins the Long Line of Dissenters That Have Defined America

by Abby Vesoulis with reporting from Tessa Berenson
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TIME: By Speaking Out, the Whistleblower Joins the Long Line of Dissenters That Have Defined America

Americans were gripped when news broke in September that an anonymous intelligence officer had reported concerns to Congress that President Donald Trump seemed to be trying to use the power of his presidency to exchange investigations into his political rivals for U.S. support of Ukraine. The consequences of the whistleblower’s actions have dominated headlines for months, but in many ways, the complaint, which may lead to Trump’s impeachment by the House this month, was a historical moment that was centuries in the making.

The United States was forged by individuals who believed their leaders were acting inappropriately. They took action to rectify that, and founded a new nation. Since then, efforts to curtail, accommodate and advance the practice of speaking out against one’s government have fluctuated since the Colonial era. The digital age has brought fresh challenges to the tradition. But one fundamental truth about American dissent remains regardless of the laws that have been used to safeguard or keep it quiet: American democracy as we know it would not exist without it.

Four hundred years ago and 3,000 miles away, Christians across the pond began to test out public dissent. They believed the Church of England, with its ornate vestments and elaborate ceremonies, too closely resembled the Roman Catholic church and should instead be “purified” to mirror the simplicity of the Bible’s New Testament. The church rejected the so-called Puritans’ suggestions, and threatened them with “extirpation from the earth.” One bold Puritan who criticized Anglican Bishops as “knobs, wens and bunchy popish flesh,” was even sentenced to life in prison, had his nose slit, his ear cut off, and his forehead branded with “S.S.” — short for “sower of sedition.”

After King Charles I took the throne and married a Roman Catholic, proving too much for Puritans to bear, some set sail in the early 1630s for America in pursuit of religious freedom. Over the course of the next decade, approximately 20,000 risked disease and deathto make the trek. They joined Pilgrims, who had left England 25 years earlier in much smaller numbers, and who were more radical in that they wanted to separate entirely from the Church of England, rather than reform it. Since church and state were synonymous at the time, this was potentially treasonous. By leaving England, the Pilgrims sought to avoid the fate of other separatists like John Penry, Henry Barrow and John Greenwood, who were all hanged for their religious beliefs in the 1590s.

The underlying hope of the two groups was that their new country and its leaders would not be as oppressive towards the citizens who disagreed with their government’s practices. America faced this test early: Just seven months after the Declaration of Independence was signed in 1776, the newly established Continental Congress had to decide how to handle Americans who reported government misconduct. Ten American sailors and marines had accused the Continental Navy’s most powerful man, Commodore Esek Hopkins, of torturing British prisoners of war. Hopkins retaliated by suing them for libel. But instead of siding with Hopkins, the Continental Congress backed the whistleblowers and passed a resolution on July 30, 1778, that said it is “the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.”

The resolution was a critical moment in American history. “It establishes that, at least in this country, the idea of confronting law breakers is something that everyone is encouraged to do, no matter what your station,” says John Kostyack, executive director of the National Whistleblower Center. “And at the time, that’s a fairly radical notion.”

A decade later, the Constitution’s framers locked in the right to criticize the very government they were forging—whether or not the recipient of that criticism had done something egregious like Hopkins—as a component of the Bill of Rights’ First Amendment. Ratified in 1791, the protection was eventually interpreted to provide amnesty for Americans who wished to burn flags or protest wars. By establishing that Congress could make no law “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances,” the framers were also laying the groundwork for future, more specific laws protecting both private citizens and government employees who feel obligated to speak out after encountering corruption or other wrongdoing.

“The values protected by the First Amendment gave rise to the understanding that there is a need on the part of the public to have access to information that the government wants to keep secret in order to enable both the public and other government officials to ensure that the government is acting in appropriate ways,” says Geoffrey Stone, a leading First Amendment scholar and law professor at the University of Chicago. “It is the underlying spirit of the First Amendment that gives rise to the notion that there should be a right of whistleblowers,” he says.

However, critical gaps remained. While the First Amendment could theoretically protect a government employee who wants to voice irritations with something outside of the purview of their job, it would not necessarily protect them if they spoke out about topics related to their work. “The First Amendment rights of public employees — generally, bureaucrats, civil servants and others — are somewhat limited, because the theory is that although they have rights of expression, they don’t automatically have a right to the job that they hold,” says Laurence Tribe, a prominent Constitutional law professor at Harvard. “If there’s somebody in the [Environmental Protection Agency] who decides that climate change is this grave problem, contrary to the views of the current Administration… They could be fired for that.”

During the Civil War, Congress began not only to ramp up protections for whistleblowing, but also to incentivize it—at least for those calling out misdeeds in the private sector. When unscrupulous defense contractors were deceiving the U.S. treasury by providing soiled rations and malfunctioning rifles to the Union’s military forces, President Abraham Lincoln signed a law called the False Claims Act of 1863 that allowed members of the public to bring lawsuits on behalf of the federal government against entities they alleged were defrauding the government. The law established fines for contractors who cheated that system, and said that a whistleblower who started a False Claims suit would get a portion of the damages recovered. Also known as Lincoln’s Law, the act has been weakened and strengthened over the years, but is still in use today and has aided in the recovery of more than $30 billion in stolen funds in the last three decades alone.

By the 20th century, Congress began drafting legislation to provide government workers with concrete protections for voicing concerns about what they encounter while working in federal offices. In 1978, the Merit Systems Protections Board was created to adjudicate cases where employees alleged things like discrimination from favoritism or retaliation for whistleblowing. The same year, Congress passed the Inspector General Act, which created independent Inspector Generals within Federal agencies to conduct agency oversight and combat fraud. Approximately ten years after that, the Whistleblower Protection Act was enacted in 1989 to protect federal employees who reported “government illegality, waste, and corruption” complaints to the proper parties: their agency’s Inspector General or the Office of the Special Counsel.

But the act only applied to federal employees outside of the intelligence community who worked in unclassified environments. Thus, the anonymous intelligence analyst who reported concerns about President Donald Trump’s call with Ukraine President Volodymr Zelensky would still not have been protected had they come forward in 1989. It wasn’t until 1998 that intelligence community officials were afforded similar protocols of reporting misconduct with the Intelligence Community Whistleblower Protection Act. FBI officials also benefited from new provisionsprotecting them from career reprisal, starting around 1999. The Intelligence Community version of the Whistleblower Protection Act mandates an intelligence employee report complaints “of urgent concern” to either their agency’s Inspector General or the Inspector General of the Intelligence Community before sharing the information with Congress—the exact steps the CIA officer took this year.

Such laws have allowed for little-known bureaucrats and public citizens to root out corruption from within their federal and Defense posts over the last two decades. There was FBI special agent Coleen Rowley (a TIME 2002 Person of the Year), who wrote a letter to then-FBI Director Robert Mueller about how the agency had failed to use information from a Minneapolis field office to properly investigate a terrorist who was later convicted in connection to the September 11 attacks. There was military police officer Joseph Darby, who came into possession of photos of U.S. military personnel torturing inmates at Abu Ghraib prison in 2004 and wrote a letter to the Army Criminal Investigation Division, which handles soldiers’ reports of criminal acts. There was Marine Corps official Franz Gayl, who raised concerns about delivery delays of mine-resistant tactical vehicles to Iraq in 2007, and eventually took his complaint to Congress and the media when his superiors wouldn’t act. Though Gayl alleged he faced workplace retaliation, as is common among whistleblowers, none of these individuals were charged with criminal acts, having followed the proper reporting channels.

Not all informants enjoy the protection of the law. Infamously, after former United States military analyst Daniel Ellsberg leaked the Pentagon Papers—a top-secret Department of Defense report detailing how the country got so involved in a war that many Americans grew to hate—to the New York Times, the Washington Post, and other newspapers in 1971, he was charged with violating the 1917 Espionage Act. The charges against him were dismissed after government misconduct, including illegal wiretapping, were introduced in court. But if the evidence against him had been acquired with proper warrants, he could have received a prison sentence of over 100 years.

Former U.S. Army intelligence analyst Chelsea Manning did serve prison time for distributing classified materials, including documents and videos that revealed civilian death counts in Iraq were likely higher than official estimates had let on, to the anti-secrecy site Wikileaks. In 2013, she was found guilty of espionage and theft, though former President Barack Obama commuted her sentence in 2017. Former Intelligence Community officer Edward Snowden also faced legal consequences when he leaked National Security Agency intelligence about government surveillance programs to the media. He faced charges such as theft and espionage, each carrying a maximum sentence of ten years. (Snowden now resides in Russia under asylum, as the U.S. seeks his extradition.)

After commuting Manning’s sentence, Obama signed the Presidential Policy Directive 19,an executive order designed to reinforce that members of the intelligence community who report fraud to the proper channels, rather than to the media, are safe from retaliation. Obama’s directive cemented the system in which Intelligence Community employees could share complaints with the proper channels without hindering national security or facing workplace retaliation, in hopes of safeguarding future informants like the anonymous CIA analyst.

But despite these layers of legal protections, unveiling potential corruption is neither safe nor easy—especially when the person you’re blowing the whistle on is the most powerful political figure in the world. “This is a real test for our entire system of whistleblower protection,” argues Kostyack, from the National Whistleblower Center. “The president and his allies are not just attacking these individual whistleblowers, but also implicitly challenging the notion of an ability to file a confidential disclosure.”

Trump and members of his administration have staunchly denied allegations that the President abused the power of his office that the whistleblower, and now House Democrats, have lodged against him. “President Trump has done nothing wrong — this is a coordinated smear campaign from far-left lawmakers and radical unelected bureaucrats waging war on the Constitution,” White House Press Secretary Stephanie Grisham said in October. “There was no quid pro quo.” The President and his allies have also launched public attacks on the whistleblower himself, questioning his patriotism.

In their fight, Trump and his supporters risk dismantling whistleblower protections that Navy and Marine members risked their livelihoods for in 1777, when they reported Commodore Esek Hopkins. “We really have to have that internal dissent channel vibrant and alive,” says Allison Stanger, a professor of international politics and author of a recent book on whistleblowers. “Or else we just have to say that the truth is whatever our leaders say it is.”

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