In yesterday’s Washington Post, an editorial called "Charging WikiLeaks" urges the Obama administration to refrain from pressing criminal charges against WikiLeaks leaders for releasing classified State Department cables. "Media outlets do not have a legal duty to abide by the government’s secrecy demands," the editorial declares. What should the government do? At the end of the editorial, the Post editors suggest, "[s]horing up the independence and tools of the inspectors general . . . might persuade the next would-be whistleblower to tern to a responsive . . . government entity . . …" Does the Post really think that would-be whistleblowers don’t have the address of the House and Senate Intelligence Committees? My experience is that inspectors generals are good at taking action against corruption that the leadership does not want. If it is the leadership that is corrupt, then the inspector general they pick is unlikely to take action against them. My hunch is that most would-be whistleblowers would figure that out. How about meaningful legal protections against retaliation? The current version of the Whistleblower Protection Enhancement Act (WPEA) in the Senate (S. 372) would leave national security whistleblowers stuck with the decisions of the leaders of the intelligence agencies. That is likely to be worse that the Merit System Protection Board (MSPB) which rules against whistleblowers over 98% of the time. The House version (HR 1507) would allow all federal employees to have access to jury trials. Even the employees of national security agencies have access to jury trials for Title VII claims of discrimination. The legal system has figured out how to permit these claims to be tried without damaging national security. It is time we use this process to enhance national security by making sure that whistleblowers have the gold standard of justice when they pursue the lawful means of raising concerns about abuses.
