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Analysis

A Whistleblower Explains the Pitfalls of Reporting Government Wrongdoing

FBI whistleblower and Brennan Fellow Michael German advocates for stronger protections so that more whistleblowers “do the right thing.”

October 8, 2019
DC skyline
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The whis­tleblower complaint that promp­ted the impeach­ment inquiry against Pres­id­ent Trump also brought atten­tion to the risks faced by those who report miscon­duct. Bren­nan Center Fellow Michael German has been a lead­ing national advoc­ate for stronger laws that protect whis­tleblowers from repris­als, require timely invest­ig­a­tions of their complaints, and allow them to pursue retali­ation claims in court.

German speaks from exper­i­ence. A former FBI agent who infilt­rated white suprem­acist groups during his 16 years with the bureau, he became a whis­tleblower himself when he repor­ted misman­age­ment by his super­i­ors in a terror­ism invest­ig­a­tion. German, who resigned after suffer­ing repris­als during the tenure of Robert S. Mueller as FBI director, recounts his fight, and that of other FBI whis­tleblowers, in his new book, Disrupt, Discredit, and Divide: How the New FBI Damages Demo­cracy.

He answered a few ques­tions about what compels a whis­tleblower to speak up, the poten­tial fallout for the C.I.A. officer who exposed Pres­id­ent Trump’s possible abuse of power in seek­ing polit­ical dirt against a polit­ical oppon­ent from a foreign coun­try, and the import­ance of whis­tleblowers to our demo­cracy.

What leads a whis­tleblower to talk?

All federal employ­ees take an oath to protect and defend the Consti­tu­tion, not to the protect the agency they work for or the pres­id­ent they serve from public scru­tiny. Most whis­tleblowers I’ve known saw miscon­duct and felt duty-bound to report it, regard­less of how it might affect them person­ally.

When I saw an illegal act, as a law enforce­ment officer, I didn’t feel I had any choice but to report it. When FBI managers then began falsi­fy­ing records to cover up their malfeas­ance, again, I had no choice but to continue alert­ing the appro­pri­ate over­sight offi­cials to what I was witness­ing. These FBI managers made me choose between comprom­ising my integ­rity or ending my career, and I chose the latter.

The New York Times iden­ti­fied the first whis­tleblower who came forward as a CIA officer at one time detailed to the White House. Do you think this was the right decision?

It is a hard call. Obvi­ously, the whis­tleblower’s profes­sional iden­tity is a matter of public interest. The excess­ive secrecy in which intel­li­gence activ­it­ies and foreign affairs take place under­mines demo­cratic controls, which enables the kind of abuses whis­tleblowers report. So, I am in favor of as much trans­par­ency as possible.

On the other hand, whis­tleblowers have rights that need protec­tion, and some level of anonym­ity helps protect them. Not publicly naming them may help avoid perman­ent career rami­fic­a­tions and the abuse and threats that might come from people outside the govern­ment. But the truth is that those that would engage in offi­cial retali­ation likely already had a pretty good idea who was concerned enough about the pres­id­ent’s conduct to report it to the inspector general.

And the report­ing aven­ues required by the Intel­li­gence Community Whis­tleblower Protec­tion Act make it easier for agency managers to identify whis­tleblowers, so the system is designed to fail when it comes to protect­ing anonym­ity. Intel­li­gence employ­ees would be less likely to be iden­ti­fied if they could speak directly to their elec­ted repres­ent­at­ives without going to the inspector general first.

Mike German Bren­nan Center for Justice
Image: Bren­nan Center for Justice

Pres­id­ent Trump respon­ded to the first whis­tleblower’s complaint with taunts and attacks on his or her cred­ib­il­ity. What kind of pres­sure does this put on a whis­tleblower?

It is incred­ibly harm­ful. There are surely govern­ment employ­ees taking Pres­id­ent Trump’s public state­ments as a direct­ive to identify, report, and retali­ate against the whis­tleblower, and clearly people inside and outside the govern­ment are already invest­ig­at­ing his or her back­ground and leak­ing details they find damning. The fact that a second whis­tleblower repor­ted to the inspector general within days indic­ates that other employ­ees are also feel­ing the heat, and at least one is seek­ing protec­tion by follow­ing the process outlined in the Intel­li­gence Community Whis­tleblower Protec­tion Act.

The pres­id­ent’s language could even be considered an attempt to intim­id­ate witnesses. I’m sure the whis­tleblowers are quite concerned about their safety, not to mention their future career. The truth is that there are very few protec­tions for intel­li­gence community whis­tleblowers. And what does exist is just an avenue to seek compens­a­tion after the whis­tleblower is retali­ated against, rather than a shield to protect the whis­tleblower from suffer­ing that retali­ation in the first place.

I am sure in this polar­ized polit­ical era the whis­tleblowers knew that report­ing pres­id­en­tial miscon­duct was going to put a target on their back, but they made the cour­ageous decision to step forward despite the personal consequences. At least in this case, poli­cy­makers are taking action to invest­ig­ate their alleg­a­tions. Noth­ing is more frus­trat­ing to whis­tleblowers than to have the respons­ible offi­cials ignore the inform­a­tion they provided at such great personal and profes­sional cost.

What effect do you think this moment, espe­cially if it leads to impeach­ment, will have on future whis­tleblowers during and after the Trump admin­is­tra­tion?

I think in the short term more whis­tleblowers will come forward, figur­ing they aren’t alone in their concerns and hope­ful that members of Congress will respond appro­pri­ately to invest­ig­ate their reports of govern­ment waste, fraud, abuse, and illeg­al­ity.

But it’s up to members of Congress to welcome this report­ing, to respond to it with thor­ough invest­ig­a­tions, to use their author­ity to demand protec­tion for these whis­tleblowers, and, finally, to amend the law to more effect­ively protect those in the FBI and intel­li­gence agen­cies who work every day to protect us. These conscien­tious govern­ment servants deserve to have the strongest protec­tions so they know they can do the right thing.

What needs to change about how the govern­ment currently protects national secur­ity whis­tleblowers?

The primary reform neces­sary to protect whis­tleblowers is giving them access to federal courts to vindic­ate their rights if they face repris­als for good faith report­ing of govern­ment wrong­do­ing. Intel­li­gence community and FBI whis­tleblowers are most vulner­able for two reas­ons.

First, these agen­cies have broad author­ity to invest­ig­ate and rein­vestig­ate their back­grounds, provid­ing oppor­tun­ity to pursue retali­at­ory alleg­a­tions and select­ively punish minor viol­a­tions of admin­is­trat­ive rules. Second, the agen­cies have broad author­ity to revoke the secur­ity clear­ances neces­sary to employ­ment with little cause and few due process rights. So long as these agen­cies can be their own adju­dic­at­ors of retali­ation claims in secret, elud­ing congres­sional over­sight and public account­ab­il­ity, whis­tleblowers within these agen­cies will not be safe.

If the agen­cies could be trus­ted to act in good faith regard­ing internal whis­tleblowers, we would­n’t need whis­tleblower protec­tions. 

Please finish this sentence: “Without whis­tleblowers, …” 

… neither our liberty nor our secur­ity can be preserved.