Op-Ed: Whistleblowers are vital to democracy. We need to better protect them
Two years ago, we published the Panama Papers. The internal data from the dubious Panamanian law firm Mossack Fonseca revealed how dictators, drug cartels, mafia clans, fraudsters, weapons dealers and regimes like North Korea and Iran use offshore shell companies to hide their shady business transactions. The publication of investigations based on the papers brought down prime ministers in Iceland and Pakistan, triggered mass demonstrations and launched criminal trials around the world. Laws have changed and oversight committees have been adopted in numerous countries. The Panama Papers have helped tax authorities recover several hundred million dollars in unpaid taxes and penalties.
All this began with just one individual and his courage: A whistleblower who called himself (or herself, we still don’t know) “John Doe.” He anonymously leaked 2.6 terabytes of data to us. (We try not to think about what the drug dealers, dictators and organized crime figures would do to John Doe, if they could find him.) His life, his job and his family are still at risk because he saw corruption and decided to try to remedy it.
Society cannot thank John Doe enough. Without whistleblowers like him, the world would be a much less transparent place. We wouldn’t know the details of the shady shell games of the financial industries. We would be in the dark about how national intelligence services intercept our communications, Russia’s elaborate doping machine, Israel’s secret nuclear program and the dodgy tricks of Cambridge Analytica.
Yet still, the way society treats whistleblowers is schizophrenic at best. They are regarded as vital to open societies, but there are few laws to effectively protect them. When they’re revealed along with the secrets they uncover, they often end up marginalized, shamed or, worse, threatened. People love the betrayal, but not the betrayer.
Edward Snowden, whose trove of internal National Security Agency documents revealed eavesdropping by the United States and its allies, lives in forced exile in Moscow. Chelsea Manning spent years in prison after leaking diplomatic cables and Army reports from the wars in Afghanistan and Iraq, along with a video of American soldiers killing civilians in Baghdad. The United Nations special rapporteur on torture called Manning’s sentence cruel and inhuman. Both face hate and anger in their home countries, and in Snowden’s case, the most serious of criminal charges.
Some whistleblowers are extremely unsympathetic. But they and their deeds deserve to be protected, not punished.
Former CIA employee John Kiriakou confirmed that the U.S. tortured prisoners with waterboarding and was imprisoned for nearly two years. Now his former colleague, Gina Haspel, who once oversaw a black site where torture took place, has been nominated to be the new director of the CIA.
Russian runner Yulia Stepanova saw her career come to an end after she exposed Russia’s elaborate doping machinery, but athletes complicit in the scheme continue to compete. Grigory Rodchenkov, the former head of Moscow’s anti-doping laboratory, who came clean about the misdeeds after Stepanova, is living under witness protection somewhere in the U.S.
NSA contractor Reality Winner is facing a multi-year-prison sentence for informing the public about Russia’s attempts to manipulate the U.S. election in 2016. In the Philippines, self-confessed hitman Edgar Matobato has been on the run since he denounced his country’s covert death squads, while Philippine President Rodrigo Duterte, the man Matobato says is responsible for the bloody offensive, runs the government.
This sort of treatment is a signal to others who might come forward: Look what can happen to you if you leak incriminating information. You may be ostracized, sued, imprisoned, ridiculed and intimidated. In the worst cases, you will have to go into hiding to protect yourself.
Not every whistleblower is a white knight, a role model in every way. Some are extremely unsympathetic. But they and their deeds deserve to be protected, not punished.
The U.S. has numerous whistleblower protection laws, but often they do not provide much actual protection. State laws vary in a number of respects and frequently hinge on whether the employer is private or public. Federal whistleblower statutes, including the Whistleblower Protection Act and the Intelligence Community Whistleblower Protection Act, are confusing at best.
One common problem is that many whistleblower laws do not make crystal clear what kind of activity is protected, or under what circumstances. To be effective, these laws cannot leave what constitutes protected activity up for interpretation.
Whistleblowers are consistently penalized for not using “proper channels” to make their disclosures, when doing so would require the whistleblower to trust the company or agency whose conduct he is exposing. The definition of “proper channels” should therefore be broadened to include the media. Often the media are a whistleblower’s only real option, and exposing the unethical or illegal behavior to the public is crucial.
The U.S. uses the 1917 Espionage Act to go after government leakers like Snowden and Manning. Congress should move to insulate whistleblowers from the law by allowing for a public-interest defense. And as long as they do act in the public interest, whistleblowers should also be immune by law from civil lawsuits, to protect them from the threat of financial retaliation.
If we do not raise our voices in defense of whistleblowers, if there is no public outcry and no change for the better in laws and practice, criminals and corrupt elites will win.
Frederik Obermaier and Bastian Obermayer are Pulitzer Prize-winning journalists with the German newspaper Süddeutsche Zeitung. They initiated the 2016 Panama Papers and 2017 Paradise Papers revelations.
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