Chapter 5

Should We Rely on Whistleblowers?

Disobedience and the Problem of Retaliation

In chapter 4 I argued that the law should not condone unauthorized disclosures of classified information because officials will not always know which disclosures are in the public interest, and cannot be easily held to account when they act rashly or maliciously. But this does not mean that officials can never be justified in making unauthorized disclosures of classified information. If an official possesses classified information that reveals wrongdoing, then she may well be justified in disobeying laws that prohibit the disclosure of classified information. But what counts as wrongdoing? And when does wrongdoing justify disclosing classified information to reporters and publishers? These are the questions we must examine next.

When to Blow the Whistle?

There are five conditions that must be met before an official can be justified in disobeying laws prohibiting the unauthorized disclosure of classified information. The first is that the disclosure must reveal wrongdoing. But what counts as wrongdoing? There are two reasons why an official must not evaluate wrongdoing in terms of her own moral, religious, or political views. First, unlike the unhappy conscript contemplating her conscience, the official in question will presumably have volunteered to be entrusted with classified information (and likely on the explicit condition that she will not disclose it without authorization). Consequently, if the president’s secret activities and policies run counter to the dictates of her conscience, she ought to resign from her post rather than publicize the president’s actions and policies. To her employer she owes loyalty—and she may disregard this obligation only if she is confronted with a greater obligation that even her employer could recognize as legitimate.1 Second, the potentially adverse consequences of her disobedience will be borne not by her alone, but by other citizens as well, whose safety she endangers. An unauthorized disclosure, as Alexander Bickel has written, is an “impositional,” morally coercive act.² Because she imposes a burden on her fellow citizens, an official who makes an unauthorized disclosure must evaluate wrongdoing in terms of the violation of shared interests.

Yet shared interests will often conflict. For instance, a secret surveillance program may violate the privacy of citizens but also uphold public safety. So how, then, is an official involved in such a program to ascertain whether wrongdoing has occurred? The official cannot decide that the president has violated shared interests simply because she believes that her fellow citizens consider privacy more important than safety. To think this way would be to ignore the fact that there tends to be disagreement over how to balance shared interests, especially under conditions of uncertainty. For example, there might be disagreement not only over how much we ought to value safety as opposed to privacy, but also over how far the surveillance program actually contributes to safety. The pervasiveness of disagreement is precisely why we value and utilize voting and representation—these procedures allow us to draw conclusions as to what we collectively see as being in the public interest.

Arguably, as an official cannot rely on her own interpretation as to how shared but conflicting interests should be balanced—because we have granted the president and not her the authority to make that decision on our behalf—she can claim that wrongdoing has occurred only when the president exceeds the authority that we have allocated to him.³ Thus, for example, if our hypothetical official comes across evidence showing that the secret surveillance program is being used to monitor political rivals rather than security threats (and the law authorizes the latter and not the former), then she might well be justified in concluding that the president has exceeded his authority.

But are the bounds of public authority always clear? In some instances they are. Suppose an official discovers that the president has covered up the fact that he has recruited individuals to burgle the offices of his political rivals. This official will have little reason to doubt that she is witnessing a gross abuse of public authority. But the picture becomes murkier when we consider the sorts of measures that a president might order in the midst of war and conflict—for example, the use of enhanced interrogation techniques or the use of deception against citizens. Should such unlawful or extralegal conduct always count as wrongdoing sufficient to warrant an unauthorized disclosure?

Some scholars argue in the affirmative. Geoffrey Stone, for example, has claimed that when a policy or program “is in fact unlawful, the public’s need to know outweighs the government’s interest in secrecy.”4 But this seems hasty. It is possible to envision cases where presidents might engage in conduct that lawmakers have not authorized, or have even prohibited, but would authorize if they were aware of the circumstances. For example, imagine that the FBI has detained the leader of a terrorist cell plotting a suicide bombing in New York City. Confronted with evidence that news of the detention may provoke the remaining members of the cell into immediately executing the plot, the president orders the terrorist to be placed in solitary confinement without informing anyone else.⁵ Now imagine that one of the supervisors at the solitary confinement facility discovers the undocumented prisoner. Will this supervisor be justified in thinking that the president has abused his authority? The answer here, surely, must be—it depends. As in the case of the secret surveillance program discussed above, the supervisor at the solitary confinement facility will have to take a number of variables into account before she decides whether the president has abused his authority. For instance, she will need to examine whether the Supreme Court and Congress have declared that precautionary detention is never permissible (or have they granted the president some discretion in such matters)? Is there reason to believe that the prisoner really is a terrorist leader (rather than an innocent)? Is there evidence that the prisoner is being mistreated (rather than merely being detained incommunicado)? Is there a time line for the covert detention (or does it seem open-ended)? Crucially, does the president seem prepared to be held accountable for his decision ex post (or are records being destroyed in order to conceal the entire matter)?

The point, in short, is that since adventurous exercises of executive power usually take place in the midst of complicated and fast-moving events, an official cannot rely on a rigid definition of what constitutes wrongdoing. In determining whether a prima facie violation of the law constitutes a genuine abuse of authority, she will need to take account of the broader context within which the violation has occurred. In other words, she will need to evaluate whether the president is behaving in a manner consonant with the authority that has been allocated to him—that is, whether he is following the spirit, if not the letter, of the law.

This procedure for ascertaining whether wrongdoing has occurred has its drawbacks. Since secret intelligence is typically compartmentalized, a subordinate official may find herself lacking the detailed contextual information required to ascertain whether the president is in fact abusing his authority. As a result, she will be left in limbo—aware of an apparent violation of the law, but unable to determine whether the president has actually abused his authority. This may lead her to obey orders that she would actually be justified in disobeying. There are, however, some ways around this obstacle. If there is a clear mismatch between the president’s actions and the law (for instance, the president claims that the secret detention is justified by necessity, but he is in fact destroying records that would evidence such a necessity), then a subordinate will have good reason to believe that something profoundly wrong is happening. Furthermore, a subordinate who lacks the information required to ascertain whether wrongdoing has occurred need not be rendered mute; instead, her position obliges her to approach those officials who are likely to have the information she lacks.

The absence of contextual information is not the only barrier to ascertaining whether prima facie wrongdoing constitutes a genuine abuse of authority. There is also the possibility that moral and political disagreements will lead to differences over the rightful bounds of public authority. For instance, suppose our hypothetical supervisor decides that the president’s decision to confine the terrorist leader violates a law passed by Congress. Whether the supervisor sees this violation of the law as an abuse of authority will depend on whether she thinks that the president has the right to violate the law during an emergency. It hardly needs to be pointed out that there is little consensus on this question. Yet once we acknowledge that reasonable people can disagree over whether a given violation of the law constitutes an abuse of authority, then it becomes clear that even an unauthorized disclosure that exposes an apparent violation of the law could prove controversial because what one individual sees as wrongdoing will not necessarily be seen as such by others. As we shall see below, this concern does not mean officials must make unauthorized disclosures only when there is likely to be unanimous agreement that an abuse of authority has taken place. Instead, the pervasiveness of disagreement over the rightful bounds of public authority imposes an obligation on the official as to how she ought to proceed when making an unauthorized disclosure—namely, she ought to identify herself so that the public (and potentially, jurors) can examine her motives.

So far I have argued that an official will be justified in making an unauthorized disclosure only if she encounters wrongdoing—understood as the abuse of public authority. This is just one of three threshold conditions that must be met (and only one of the five conditions in sum). A second threshold condition is that an unauthorized disclosure must be based not on hearsay or fragmentary evidence but on clear and convincing evidence. Evidence can be described as clear and convincing when disinterested observers are likely to draw the same inference from it. The explanation for this condition is straightforward: since an official who makes an unauthorized disclosure potentially endangers her fellow citizens, she will not be justified in putting them in harm’s way unless she can point to evidence that they are bound to accept. Now, for the reasons outlined above, there may be disagreement over whether the prima facie wrongdoing she has exposed really is an instance of the abuse of authority. Nonetheless, the evidence itself should be clear and convincing. To return to an earlier example, an official must have evidence that the secret surveillance program is in fact being used to spy on a political rival before she discloses the existence of the program. Whether the president’s decision to spy on his political rival actually constitutes an abuse of authority will depend on contextual variables that citizens and lawmakers will subsequently have to analyze (for instance, an inquiry might reveal that the president had good reason to believe his rival was conspiring with a foreign power and that informing Congress would have alerted his rival, who is a member of the Senate). But evidence that the political rival has in fact been spied upon should be clear and convincing—for instance, there must be logs, physical evidence, or the testimony of credible witnesses.

A third threshold condition is that the unauthorized disclosure should not impose an undue or disproportionate burden on national security. That is, an official ought not to make an unauthorized disclosure with a view to exposing the truth at any cost. Under certain circumstances it will be inadvisable to make an unauthorized disclosure even when this will reveal clear and convincing evidence of violations of the law. These circumstances are most likely to arise when the country is at war or in the midst of negotiations leading up to the establishment of rules that will have lasting effects. In this context, embarrassing or incriminating revelations may endanger the country’s strategic or diplomatic interests in ways that are significant enough to outweigh the public’s otherwise profound interest in uncovering wrongdoing. Hence, before making an unauthorized disclosure, an official must account for the harm that might result from her actions. She ought to look out for grave threats that are specific and imminent rather than vague and remote, because only threats of the former sort can trump the public’s interest in being informed of grave wrongdoing. For example, suppose an official discovers that terrorists held at a military prison have been tortured for information. If there is reason to believe that the revelation of this information poses a grave threat that is specific and imminent—the terrorists’ compatriots are highly likely to retaliate by torturing American civilians they have captured—then the official ought to refrain from making a public disclosure until after the civilians have been freed. But her final decision will have to depend on the facts of the case. If the wrongdoing itself is likely to have grave consequences that are specific and imminent—perhaps Congress is about to declare war on the basis of false intelligence that the terrorists have provided in order to avoid being tortured—then she will be justified in making the unauthorized disclosure on grounds of proportionality.

These, then, are the three threshold conditions that must be met before an official is justified in making an unauthorized disclosure—the disclosure must (a) concern an abuse of public authority; (b) be based on clear and convincing evidence; and (c) not pose a disproportionate threat to public safety. There remain two further conditions that must be satisfied before an official will be justified in disobeying laws prohibiting unauthorized disclosures. These conditions concern to whom and how such disclosures should be made.

The former of these conditions asks that the official utilize the least drastic means of disclosure. Since the disclosure of classified information is likely to endanger national security, an official is obligated to minimize harm by limiting the scope and scale of disclosures as far as is possible (subject of course to the need to alert others to prima facie wrongdoing). As a first step in this direction, an official must examine whether it is possible to make an unauthorized disclosure within the confines of the executive branch, as this will prevent the disclosure of classified information to unauthorized persons.6 This kind of disclosure involves circumventing standard reporting procedures in order to bring unlawful conduct directly to the attention of the head of the organization (or to officials he has nominated for this purpose, such as an inspector general). This requirement is especially important where low-ranking officials are concerned because, as noted earlier, they may lack the contextual information necessary to determine whether there really has been an abuse of authority. By approaching senior officials, a subordinate can obtain, if not a more nuanced insight into the broader interests at stake, then at least the assurance that higher-ups in the organization are aware of the activity in question and do not see it as clearly wrongful.⁷

But must officials always direct their disclosures toward senior officials? A number of lawmakers and scholars seem to believe so. Gabriel Schoenfeld, for instance, has written that “officials who uncover illegal conduct in the government are by no means bound to … permit violations of law to continue.” But they must, he argues, sound the alarm only in the manner prescribed by the law. In particular, they must abide by whistleblower statutes “that offer clear and workable procedures for civil servants to report misdeeds and ensure that their complaints will be duly and properly considered.” These procedures, he emphasizes, “do not include blowing vital secrets by disclosing them … [to] the rest of the world via the front pages of the New York Times.”8

Is this requirement completely defensible? There are reasons to think otherwise. Most immediately, senior officials may ignore or suppress a whistleblower’s complaint in order to hide their complicity or to avoid a scandal.⁹ Constraining a whistleblower to utilize only official channels would in such cases allow wrongdoing to go unaddressed. Further, reporting wrongdoing internally could leave a whistleblower lacking external support in the event that her colleagues and managers retaliate against her. As a result, limiting whistleblowers to internal channels might deter officials from reporting wrongdoing altogether. Finally, sounding the alarm within the organization could provide wrongdoers with the opportunity to destroy incriminating evidence.¹⁰ Hence limiting whistleblowers in this way could also undermine law enforcement.

Thus it seems that officials cannot be obliged to only blow the whistle internally. Certainly, an official must always examine whether she can blow the whistle internally. This will require evaluating the concerns outlined above. Will her complaint be heard? Is there a prospect that she will be severely punished? Could the evidence be destroyed? If these concerns turn out to be minor, then she ought to utilize official channels. And even if these concerns turn out to be more compelling, she will still be obliged to investigate all reasonable alternatives short of public disclosure. For instance, if there is a genuine threat of retaliation, she might examine whether it is possible to file an anonymous complaint.

But what if an official has exhausted all reasonable alternatives? To return to the earlier example, suppose the official who is involved in the secret surveillance program learns that internal complaints provoke a harsh response from higher-ups (for example, a colleague who complains that the president ought not to spy on his political rivals is summarily dismissed). In light of this event, the official decides that she is justified in bringing the matter to the attention of outsiders. But does this mean she is now justified in disclosing classified information to reporters and publishers? Some lawmakers have argued that when internal whistleblowing is likely to prove ineffectual or even counterproductive, an official must approach lawmakers rather than reporters and publishers, as the former could utilize discreet oversight procedures (such as closed-door hearings or investigations) that will prevent the widespread dissemination of classified information. Is this limitation any more reasonable?

I would argue otherwise, because lawmakers too could fail to investigate evidence of wrongdoing. This is most likely to happen when a majority in Congress comes from the same party as the president. In this case lawmakers will have a clear incentive to ignore or downplay evidence of wrongdoing. But the same result may follow even when a majority of lawmakers are not from the president’s party. The president’s ostensible adversaries could end up remaining silent for contingent political reasons—for instance, they may decide not to publicize embarrassing or incriminating information lest they be attacked as unpatriotic. They may also choose to be silent because they have been “captured” by the leadership of the agencies they are meant to oversee.11 And even if they are willing or motivated to challenge the president, their investigation may end up being stalled by the president’s privilege to withhold information from Congress. Worse yet, they may disclose classified information selectively in order to deflect blame or obscure their own complicity or neglect, thereby distorting the public’s understanding of the president’s policies and decisions.

Thus it seems that an official is obliged only to investigate whether disclosing classified information to Congress is likely to lead to a good faith inquiry into the appropriateness of the president’s activities. If her disclosure has been suppressed for contingent political reasons or rendered ineffectual by the president’s refusal to share further information with Congress, then she will be justified in directing her unauthorized disclosure toward reporters and publishers in order to alert citizens to the wrongdoing as well as to Congress’s regulatory failure. Indeed, she will be justified in bypassing Congress altogether if there is good reason to believe that lawmakers are likely to collude with senior officials in a cover-up or to selectively disclose evidence in order to hide their own failures. The broader obligation to use the least drastic means necessary will always remain in place, though. The whistleblower must divulge only so much classified information as is necessary to convince citizens that there has been an abuse of authority.

We have now established that the objection to unauthorized disclosures cited in chapter 1 is not entirely correct. Under certain conditions—in particular, when there is good reason to believe that lawmakers will not subject the president’s unlawful or extralegal actions to good faith scrutiny—an official will be justified in directing unauthorized disclosures toward reporters and publishers. However, we have not completed the list of conditions that an official must satisfy before making an unauthorized disclosure. As we shall now see, the fifth and final condition will greatly complicate this picture.

The final condition an official must meet is that she must be willing to disclose her identity. Of the various conditions discussed here, the reasoning behind this one is perhaps the least obvious. As Gene James asks, why do we need to know the identity of a whistleblower when “all that matters is whether wrongdoing has taken place”?¹² Sissela Bok has offered three explanations. First, public disclosures are fairer to those accused of wrongdoing, who would otherwise “be hard put to defend themselves against nameless adversaries.”13 Second, public disclosures are more likely to be effective in revealing wrongdoing because “what is openly stated can be more easily checked.”¹⁴ And third, public disclosures allow observers to study a whistleblower’s motives.¹⁵

Bok’s first two claims are not entirely persuasive. As Frederick Elliston has pointed out, it is the duty of investigators to conduct a fair and thorough investigation into allegations of wrongdoing. So long as they do their duty, concerns about fairness and efficacy become less pressing, and so it becomes less important to know the identity of the whistleblower.¹⁶ There would of course be a case for revealing the identity of the whistleblower should the accusations turn out to be baseless, but we have guarded against this scenario by requiring the whistleblower to provide clear and convincing evidence of prima facie wrongdoing. A whistleblower who fails to present such evidence would obviously have a strong incentive to hide her identity, but investigators would be justified in discounting her allegations, and indeed in attempting to uncover her identity (and should her identity be uncovered, she would have no moral defense against the law).

So why, then, must a whistleblower who has disclosed clear and convincing evidence of wrongdoing be willing to reveal her identity? Arguably, a whistleblower ought to be willing to reveal her identity for the third reason identified by Bok—namely, that this allows the public (and, potentially, jurors) to examine her motives. This explanation has not gone unchallenged. A number of scholars have argued that a whistleblower’s motives are of secondary importance; what really matters is whether the whistleblower has revealed wrongdoing. James, for instance, objects that “it is not necessary for the whistle blower’s motive to be praiseworthy for the action to be justified in terms of the public interest.”¹⁷ James’s objection makes more sense in the context of “ordinary” whistleblowing than in the present context, which is distinct for two reasons. First, unlike an ordinary whistleblower, who typically violates a confidentiality contract, a “national security whistleblower” violates both a confidentiality contract and criminal law. It is widely accepted that an individual who disobeys the law on moral grounds ought to act publicly so as to allow fellow citizens to verify that her disobedience is well-intentioned.¹⁸

Second, since there is widespread disagreement over the rightful bounds of public authority, there will often be dispute over whether a given instance of prima facie wrongdoing actually constitutes an abuse of authority. For instance, if the hypothetical supervisor we discussed earlier is an advocate of executive power, she will perhaps judge that the president’s decision to secretly detain the terrorist leader is not an abuse of authority, but if she is a civil libertarian, she will likely reach the opposite conclusion. Since there can be disagreement on whether prima facie wrongdoing actually constitutes an abuse of authority, how can we be sure that the supervisor is not merely claiming to be justified in making an unauthorized disclosure on the grounds that the president has committed “a grave wrongdoing” when her real intention is to defeat a policy she dislikes for sectional or personal reasons? Given this possibility, it is essential that we be able to investigate whether a whistleblower has acted in good faith. In particular, we need to be able to examine whether a whistleblower’s view of what constitutes the wrongful exercise of executive power is a disinterested one—the objective here being to weed out the partisan or the zealot who, under the guise of blowing the whistle, will covertly disclose classified information with a view to furthering sectional interests or personal values.

An example will make this point clearer. Suppose, for instance, that the president believes it to be in the interest of the United States to invade a country that is on the verge of developing a fearsome biological weapon. He cannot communicate the urgency of the situation to citizens because doing so would reveal how much the United States knows about that country’s biological weapons program, which in turn would allow that country to secure its facilities against bombardment. Nor can he share this secret intelligence with Congress, as it contains a bloc of radical democrats who will disclose the intelligence in an effort to foster “a full and free public discussion.” Yet if the president does not communicate the urgency of the situation to citizens and lawmakers, they are unlikely to approve the invasion, as they have little appetite for military action. Faced with this quandary, the president decides to utilize deception. When making the case for invasion, he assures citizens and lawmakers that the casualties will be minimal. He acts this way in the belief that once the invasion is complete, he will be able to safely reveal the existence of the biological weapon, and at that point citizens and lawmakers will agree that his use of deception was justified. But shortly after the president makes his case, an anonymous disclosure reveals that some of his advisers have counseled against an invasion, citing the possibility of heavy casualties. The official responsible for the anonymous disclosure claims that he has disobeyed the law in the belief that the president has gravely abused his authority by deceiving citizens and lawmakers about the likelihood of casualties. The disclosure causes enormous controversy and the invasion plan is scrapped.

Now imagine that an investigation reveals the source of the disclosure to be a cabinet officer who has received campaign contributions from corporations that stand to lose their investments in the target country in the event of war. What interest might citizens and lawmakers (and, potentially, jurors) have in knowing this fact? If they know this, they will be in a position to investigate the basis of the official’s judgment that the president has abused his authority: whether it is grounded in a good faith interpretation of the rightful bounds of public authority or in fact motivated by the desire to scuttle the proposed invasion in order to benefit her campaign contributors.

A disclosure made with the latter sort of intention is problematic for a number of reasons. Most immediately, it endangers national security because it compels officials who are in favor of military action to disclose classified information in order to reaffirm the merit of their claims. Further, a disclosure of this variety constitutes a breach of trust because we expect officials to prioritize the public interest rather than sectional or corporate interests, especially when they have been provided with privileged access to classified information. It is also deceptive because the policy it aims to support—preserving the wealth of campaign contributors—would be unlikely to be supported if it were made public (unlike the president’s policy of deception, which would probably withstand such a test were the existence of the biological weapon revealed). If the cabinet officer believes that his policy would receive public support—perhaps he believes that the interests of his campaign contributors are indistinguishable from the public interest (“what is good for General Motors is good for America”)—then he ought to publicly oppose the war on these grounds rather than by feigning concern about the president’s use of deception.

So a covert disclosure is troubling because anonymity makes it difficult for the public to discern whose interests the disclosure is serving, and to take appropriate steps to counter the possibility of manipulation (compare this with the way other sources of influence can be monitored: e.g., electoral contributions are registered, allowing the public to trace the influence of money in policymaking).19 But do we always need to know the motive behind an unauthorized disclosure? Surely we do not. Here we ought to distinguish between gross or obvious wrongdoing and suspected or prima facie wrongdoing. The former involves blatant abuses of authority—that is, actions that cannot possibly be justified in terms of the public interest. This includes gross negligence, corruption, and the abuse of police power. In the latter form of wrongdoing, by contrast, the president violates the law in the public interest, and the costs and benefits of his actions are likely be more closely matched; here there will usually be disagreement over whether the violation of the law really amounts to an abuse of authority. Only a whistleblower who reveals suspected wrongdoing must be willing to reveal her motive for the reasons outlined immediately above—namely, so that we can ensure that her unauthorized disclosures are not actually aimed at covertly promoting a sectional or partisan interest. A whistleblower who reveals gross wrongdoing, by contrast, will not be obliged to disclose her identity, as the significance of her motives will pale in comparison to the public interest in confronting a serious misuse of public authority. Moreover, a whistleblower who reveals gross wrongdoing may have a strong reason to avoid disclosing her identity because a president capable of such conduct might also be willing to do whatever it takes to silence her.

From a practical perspective, though, this distinction turns out not to be very meaningful, because national security whistleblowers tend to expose suspected rather than gross wrongdoing. There are two reasons for this. First, gross wrongdoing is a relatively rare occurrence in an advanced industrial democracy such as the United States (Watergate being the prime example). Second, when it comes to matters of national security, presidents can—and do—cite the public interest as the justification for any violation of the law. This implies that most unauthorized disclosures will reveal suspected wrongdoing and that therefore we will typically want national security whistleblowers to be willing to reveal their identity. But this expectation creates a serious quandary. Requiring a whistleblower to be willing to disclose her identity makes it less likely that even those officials who have good intentions will blow the whistle. This is because by disclosing her identity, an official exposes herself to retaliation, not so much from the law (since prosecutors may choose not to prosecute her or else a jury may nullify the prosecution), but from her colleagues and managers, who are likely to take a dim view of the negative publicity resulting from her disclosures. The record on this front is certainly disheartening. As Mike Martin has put it, “sad and tragic stories about whistleblowers are not the exception; they are the rule.”20 The more credible the threat of retaliation, the weaker an official’s obligation to blow the whistle becomes, especially when she is a witness to, rather than an active participant in, the wrongdoing in question. For, as Martin argues, although an official is obliged to serve the public, she is not obliged to do so without regard for the adverse effect this may have on her career and personal life.²¹

Now, to be sure, an official cannot care only about her own interests, since she has chosen to be a public servant. Therefore her obligations to the public do not simply drop away at the first sign of trouble. In particular, she will be obliged to blow the whistle—even at great personal cost—when she comes across grave wrongdoing. But, as noted above, an official is unlikely to actually confront such tragic circumstances, because she is not obliged to reveal her identity when disclosing grave wrongdoing. The real difficulty arises when an official comes across suspected wrongdoing—a prima facie violation of the law, which, as we have seen, is the more common occurrence. In this case, we have seen, the official is obliged to reveal her identity should she decide to blow the whistle. But is she obliged to blow the whistle under the conditions we have imposed on her? Arguably, she is not, since the extent of the wrongdoing, and hence the public’s interest in knowing about it, is unclear, whereas for her personally the consequences are likely to be quite negative. As a result, this official will be justified in blowing the whistle, but she will not be obliged to do so.22

The Problem of Retaliation

We have now examined the conditions under which an official can be justified in making an unauthorized disclosure. But this exercise has left us facing a predicament: if we take the view that an official is justified in making such a disclosure only when she is willing to disclose her identity, then we run the risk that the ensuing threat of retaliation will justify her “swallowing the whistle,” thereby making it less likely that citizens will become aware of abuses of authority. But if we take the view that an official is justified in making such a disclosure anonymously so that she may avoid retaliation, then we run the risk that she will make disclosures in order to covertly further sectional interests or to impose her own values on the public. It is clear that we cannot evade this predicament by requiring officials to direct unauthorized disclosures toward Congress alone, because lawmakers could fail to act in the absence of public pressure. Nor can we hope to evade this predicament by allowing officials to approach reporters and publishers only when gross wrongdoing has occurred. This restrictive permission misses the point because whistleblowing in the national security domain will typically expose suspected rather than gross wrongdoing. How, then, to overcome this predicament?

The most obvious answer is to find a way to shield the whistleblower against retaliation. This would make it safe for her to disclose her identity, which in turn would make it safe for the public to trust her disclosures. But where are we to find such a shield? One alternative is to rely on the force of public opinion. This is another way of saying that an official ought to blow the whistle only when she is certain that by doing so she is likely to garner widespread public support, as this would make it difficult for her colleagues or managers to retaliate against her. But this solution is unsatisfactory for a number of reasons. An official will not always be able to confidently predict what the public’s response to her disclosure will be. Consider the sorts of questions that she will have to grapple with. Will her disclosures raise a hue and cry in Congress? Will the news media launch follow-up investigations? Will the president’s media managers succeed in deflecting public attention? These are questions to which even the most seasoned political observer will not have clear answers. Now, to be sure, an official will have reason to expect public support when her disclosure exposes gross wrongdoing. But a whistleblower who exposes wrongdoing of this sort is under no obligation to reveal her identity in the first place (remember, we are interested in knowing the identity, and thereby the motive, of a whistleblower only when it is unclear whether the activity or policy she has exposed actually constitutes an abuse of authority).

An alternative way to protect a whistleblower against retaliation is to rely on the law. But this is easier said than done. Although lawmakers have long sought to counter retaliation against whistleblowers, the statutes they have enacted have proven less than satisfactory from the perspective of national security whistleblowers.23 The more far-reaching of these initiatives, the Civil Service Reform Act of 1978, the Whistleblower Protection Act of 1989, and the Whistleblower Protection Enhancement Act of 2012 have declared retaliation against whistleblowers to be a “prohibited personnel practice” and have established institutional mechanisms by which aggrieved officials can seek redress.²⁴ However, these statutes specifically exclude from their purview any government agency whose “principal function” is the “conduct of foreign intelligence.”²⁵ In addition, the protections established by these statutes do not apply in cases where an unauthorized disclosure is “specifically prohibited by law” and contains information “specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs.”²⁶ In other words, these statutes effectively protect only ordinary whistleblowers: officials who have disclosed information that may be closely held but is not officially classified.

This is not to say that national security whistleblowers enjoy no statutory protections whatsoever against retaliation. They receive a degree of protection under the Inspectors General Act (IGA) of 1978 and the Intelligence Community Whistleblower Protection Act (ICWPA) of 1998. The IGA establishes inspectors general to whom federal employees can report potential wrongdoing;²⁷ it confronts the threat of retaliation by making it unlawful for supervisors to take “any action against any employee as a reprisal for making a complaint or disclosing information to an Inspector General.”²⁸ The ICWPA establishes mechanisms through which a member of the intelligence community can report wrongdoing to Congress. Though the ICWPA does not directly protect a national security whistleblower against retaliation, it does allow her to lodge a complaint with Congress in the event that her disclosure provokes reprisals.²⁹

These provisions certainly constitute an acknowledgment of the threat of retaliation that confronts national security whistleblowers. But as sources of protection against retaliation, they are less than satisfactory in two key respects. First, the protections they offer apply only if an official reports wrongdoing to her managers—that is, if she blows the whistle internally. This qualification means that an official who has lost faith in the willingness or ability of her managers to correct wrongdoing is hobbled.30 Since she is not legally protected against retaliation in the event that she decides to make the wrongdoing public, she is effectively forced to choose between being protected and being effective. This is another way of saying that current whistleblower protections favor an official who wants to report wrongdoing committed by a renegade employee rather than by senior officials. It is also far from clear that an official who intends to blow the whistle on senior officials can truly count on the protections offered by the IGA. On the contrary, the evidence suggests that in such cases would-be whistleblowers ought to pay heed to William O’Connor, the former special counsel of the Merit Systems Protection Board, who famously advised officials to refrain from blowing the whistle “unless you’re in a position to retire or are independently wealthy.” In O’Connor’s words: “don’t put your head up, because it will get blown off.”³¹

Consider here the case of Richard Barlow. Between 1985 and 1989, Barlow worked at the CIA, where he participated in intelligence activities aimed at detecting nuclear proliferation by Pakistan. During this time Barlow had the first of a series of run-ins with policymakers from the Reagan administration who were misleading Congress (then controlled by the Democrats) about the extent of Pakistani nuclear proliferation in order to prevent Congress from cutting the military and financial aid needed to ensure Pakistan’s assistance against the Soviet Union in Afghanistan.³² In 1989 Barlow moved to the Office of the Secretary of Defense. Around this time the United States announced its intention to sell Pakistan a large number of F-16s. Barlow’s response was to prepare a study showing that the planned sale violated laws controlling military exports because the Pakistanis had learned how to modify the F-16s to deliver nuclear weapons. His efforts to disseminate this study attracted the wrath of policymakers who wanted to keep relations with Pakistan on an even keel. Barlow was ordered to cease investigating the sale, and not long thereafter policymakers testified before Congress that the F-16s could not be used to deliver nuclear weapons.³³ Outraged, Barlow complained to his managers that Congress had been misled. Almost immediately he was issued a notice of termination and his security clearance was revoked.³⁴ He was then given a series of temporary, menial assignments and had to face a nine-month-long investigation into accusations of mental instability leveled against him by managers at the Defense Department. Following an investigation by the inspectors general of the Defense Department, the State Department, and the CIA, these accusations were eventually disproved and Barlow’s security clearance was restored. However, he was unable to regain a permanent position in the government.35 Barlow then brought a claim of relief before the United States Court of Federal Claims, but the suit was dismissed after the Justice Department declared that the case could not proceed without disclosing state secrets.³⁶

Barlow’s case is not unusual.³⁷ Consider as well the case of Sibel Edmonds, a linguist who was hired by the FBI shortly after 9/11. Edmonds was tasked with translating phone calls that had been intercepted as part of an FBI investigation into Turkish espionage within the United States. Edmonds soon found herself in an awkward situation when she discovered that a Turkish colleague was associated with the organizations targeted by the wiretaps, and was trying to prevent other linguists, including Edmonds, from translating the intercepts related to those organizations. In December 2002, Edmonds brought her concerns about this conflict of interest to the attention of her supervisor, who told her “not to worry.”³⁸ A month later, though, an FBI agent informed Edmonds that he suspected that their mutual colleague was deliberately misreporting the content of some of the phone calls in order to shield the targets of the wiretaps, a claim that Edmonds reportedly verified by revisiting some of her colleague’s translations. Following this discovery, Edmonds requested that her colleague be investigated. Edmonds’s supervisor, however, rejected her request, prompting her to approach senior officials at the FBI. After the ensuing investigation vindicated her colleague, Edmonds began alleging that these officials and her supervisor were shielding her colleague, and threatened to go public with her concerns. Shortly thereafter she was fired for being a “disruptive” presence.³⁹ Edmonds then filed a lawsuit charging wrongful termination, but her suit was dismissed after the Justice Department invoked the state secrets privilege.⁴⁰ It was then that Edmonds went public with her concerns.⁴¹ Following public outcry, the Justice Department’s inspector general was asked to investigate the matter. His report concluded that while “Edmonds was not an easy employee to manage,” many of her allegations “had bases in fact and should have been more thoroughly investigated by the FBI.”⁴² Instead of investigating Edmonds’s colleague, the report concluded, FBI managers treated Edmonds’s “aggressive pursuit of her allegations of misconduct” as the problem.⁴³ Following this development, Edmonds appealed to the Supreme Court, asking it to review the Justice Department’s invocation of the state secrets privilege. The court, however, declined to do so.⁴⁴

What these cases make clear is that subordinates can pay a heavy price for voicing their disagreement with the policies and positions championed by senior officials. This is not to presume that Barlow and Edmonds were in the right—I cannot enter into the details of those cases here.45 Rather, the point is that what happened to Barlow and Edmonds shows that national security whistleblowers are vulnerable to administrative action that is shielded from external scrutiny by the state secrets privilege—and hence that what happened to Barlow and Edmonds could happen to others too. Now, before we address the question of what more can be done to protect national security whistleblowers against retaliation, there is a potential objection to the relevance of these cases that we ought to address. The worry is this: are Barlow’s and Edmonds’s cases representative of the experience that most national security whistleblowers have had? In other words, is there a possibility that, statistically speaking, these cases are outliers, and that most national security whistleblowers do not routinely experience severe retaliation? Consider the conclusions reached by Marcia Miceli, Janet Near, and Terry Dworkin in their analysis of retaliation against ordinary whistleblowers. They observe that the “cases presented in the media may involve much more serious or unusual retaliation” than is typically experienced by whistleblowers, as surveys based on random samples of federal employees suggest that retaliation is “not an inevitable consequence for federal whistle-blowers”; the percentage of whistleblowers reporting retaliation ranged from 17 percent in 1980 to 38 percent in 1992 to 44 percent in 2003.⁴⁶ Although the trend in the data is discouraging, it remains the case, as Miceli, Near, and Dworkin point out, that so far fewer than half of the individuals who have identified themselves as whistleblowers have reported suffering retaliation.

The evidence studied by Miceli, Near, and Dworkin also suggests that even if retaliation against ordinary whistleblowers is as widespread as “common wisdom” has it, the prospect of suffering retaliation is not certain to deter officials from blowing the whistle.⁴⁷ At least one survey, they note, has shown that the willingness of ordinary whistleblowers to take the same action again appears to be “uncorrelated with their experience of retaliation.”⁴⁸ They also cite studies showing that officials take a variety of factors into account when considering whether to blow the whistle, including the likelihood that blowing the whistle will “result in the desired change in managerial behavior.”⁴⁹ For instance, in a large-scale survey of federal employees, 80 percent of respondents chose efficacy as one of the two most important factors that would motivate them to blow the whistle, while only 40 percent chose protection from retaliation.⁵⁰

Is the evidence cited above cause for optimism as far as national security whistleblowers are concerned? There are reasons to be skeptical about any such parallel. Arguably, national security whistleblowers are more vulnerable to retaliation because the secrecy associated with their work means that, unlike ordinary whistleblowers, they cannot easily report or publicize the retaliation they have experienced. Furthermore, as advocates on behalf of national security whistleblowers point out, the “animus” usually directed against whistleblowers turns into “obsessive hostility” when the whistleblower belongs to an intelligence agency, because organizations of this variety place a premium on loyalty and discretion.51 Given this, we really need to examine surveys of national security whistleblowers before we can say whether concerns about retaliation against them are overblown. Unfortunately, the secretive nature of the intelligence community means that such surveys are hard to come by. But suppose we are able to show that cases such as Barlow’s and Edmonds’s are outliers. Would this alleviate concerns about retaliation? There is reason to believe that it would not: such cases might be statistically rare owing to officials’ unwillingness to blow the whistle in the first place. After all, surveys have indicated that only a fifth to a third of all federal employees who witness wrongdoing actually report it.⁵² It is not unreasonable to assume that this proportion may be significantly lower in the intelligence community, where the presence of secrecy constitutes a further inhibiting factor. Moreover, even if Barlow’s and Edmonds’s cases can be shown to be atypical, they are still relevant because, as noted above, they demonstrate what can happen to whistleblowers who fall foul of senior officials.

Can We Prevent Retaliation?

We have seen that though we want officials who make unauthorized disclosures to be willing to identify themselves, fulfilling this requirement is likely to expose them to retaliation from managers and colleagues. Given this quandary, let us consider whether the protection currently offered to national security whistleblowers can be enhanced. This development, we will see, is neither likely nor desirable.

In recent years, groups such as the Government Accountability Project (GAP) and the Project on Government Oversight (POGO) that advocate on behalf of national security whistleblowers have argued in favor of bringing employees of the intelligence community under the umbrella of the Whistleblower Protection Act (WPA), as this would allow prospective national security whistleblowers to have their complaints heard by the Merit Systems Protection Board (MSPB) and the Federal Circuit Court of Appeals rather than the various inspectors general, who have, they allege, proven ineffective at protecting officials against retaliation.⁵³ This is not to say that advocacy groups express complete confidence in the MSPB or the court of appeals. On the contrary, they draw attention to statistics suggesting that these institutions have been less than sympathetic to cases brought before them. For example, between 1999 and 2005, only 2 out of 30 whistleblower claims prevailed before the MSPB, and between 1995 and 2005, only 1 out of 96 claims prevailed before the court of appeals.54 Although it has been argued that these statistics could simply mean that “many whistleblowers present weak cases,” advocacy groups insist that the findings indicate pervasive hostility toward whistleblowers on the part of the MSPB and the court of appeals.⁵⁵ At the same time, they also strongly criticize the performance of the Office of Special Counsel (OSC), the federal agency responsible for assisting whistleblowers in combating retaliation. For instance, they cite a report showing that 81 percent of federal employees who sought the OSC’s help in cases involving retaliation gave it a “low” to “very low” rating for overall effectiveness.⁵⁶ Such statistics, they argue, indicate that the current system needs to be reformed in order to make it more responsive to the concerns of whistleblowers.

The list of reforms that advocates for national security whistleblowers wish to introduce is lengthy. The more prominent include lessening the burden of proof to establish that retaliation has occurred, allowing appeals involving retaliation against whistleblowers to be heard by district courts, and expanding the definition of what constitutes retaliation.⁵⁷ With respect to the last of these items, advocacy groups have argued that Congress should authorize the MSPB and the court of appeals to review the revocation of security clearances. Thus far the MSPB and the court of appeals have declined to take on this task because the Supreme Court has ruled in Department of the Navy v. Egan (1988) that the Constitution vests the authority to grant security clearances in the hands of the executive branch.⁵⁸ According to critics, Egan has made the revocation of security clearances the “weapon of choice” for managers who want to punish a national security whistleblower, because an official who cannot access the classified information she needs to perform her job is “effectively fired.”⁵⁹

Although there can be no doubt that the institutional features described above contribute greatly to the sense of vulnerability that national security whistleblowers feel, there is reason to doubt the soundness and the likely effectiveness of the reforms proposed by the aforementioned advocacy groups. An immediate obstacle to these reforms is that lawsuits brought by members of the national security community typically involve evidence that is classified. As noted in chapter 2 (and as we have just seen in the cases involving Barlow and Edmonds), federal judges have been averse to challenging the Justice Department’s invocations of the state secrets privilege, including in cases where employees belonging to intelligence agencies have complained of discriminatory or abusive treatment. We have already seen why courts are unlikely to take a more active role on this front; let us now focus on a different shortcoming of the proposed reforms—namely, that they are predicated on the idea that determining what sorts of activities constitute wrongdoing is a straightforward business. This assumption seems reasonable in the context of professions such as medicine and engineering. For instance, those constructing a house must follow a code, and a violation of the relevant technical rules by an architect or engineer can be objectively discerned by the concerned employee and by an external auditor. In the national security domain, by contrast, there will typically be disagreement over whether a violation of the law actually constitutes wrongdoing, and therefore whether the violation of the law justifies an unauthorized disclosure. As a result, if we establish laws that prevent the president from dismissing officials who disclose classified information about what they see as wrongdoing, we would effectively force him to calibrate his policies to meet the objections of his subordinates. This arrangement is undesirable for two reasons. First, we want decisions to be made by the president, whom we have selected and whose judgment and character we have had an opportunity to gauge. Second, the president’s subordinates are highly likely to have conflicting views on what constitutes wrongdoing. This means that the president will not be able to make hard decisions without someone in the chain of command concluding that wrongdoing has been committed, and that she is therefore justified in making an unauthorized disclosure. The end result is that it would become impossible for the president to maintain secrecy regardless of what he decides.

It may be objected that robust whistleblower protection will not prevent the president from disciplining his subordinates. Instead, it will only make the president’s right to discipline his subordinates hinge upon a judge’s concurring that the subordinate was unjustified in thinking that the president had acted wrongfully. Now, there may well be some merit to having such a check in place. It is quite possible that managers will wait for public attention to fade before striking at an employee responsible for blowing the whistle on activities that are widely seen as wrongful. In such cases, the presence of an external reviewer could provide a whistleblower with some degree of security against vengeful colleagues. Nonetheless, there are at least two reasons why we should temper our expectations as to what external review can accomplish. Recall here that there often will be no objective answer to the question of what the rightful bounds of public authority really are. Consider, for instance, the hypothetical supervisor who discloses to the New York Times that the president has secretly detained a terrorist leader. Whether a judge agrees with the supervisor that the president’s action constituted wrongdoing will depend in no small measure on whether he shares the president’s interpretation of the Constitution. Therefore, whether the president is allowed to go ahead and discipline the supervisor will not necessarily rely on some sort of objective or foreseeable standard. Rather, the outcome will likely be influenced by the judge’s interpretation of the Constitution. Now, if judges are charged with deciding what sorts of national security information could rightfully be disclosed by government employees, then presidents and Congress would begin to take particularly keen interest in appointments to the relevant benches. What are the chances that the views of the relevant district court judges, who will be nominated by the president and confirmed by the Senate, will turn out to be remarkably different from those of existing inspectors general, who are nominated by the president and confirmed by the Senate?

Suppose we are not convinced by the objections outlined above. Perhaps we ought to be persuaded that district courts can in fact be compelled to protect national security whistleblowers against retaliation by their employers (in spite of their long-standing aversion to cases involving state secrets), or that even a limited judicial check on administrative discretion is better than none. Will the introduction of external review put an end to the problem of retaliation? I would argue that the utility of the reforms proposed by the aforementioned advocacy groups is still brought into question by how pervasive and mutable the means of retaliation can be. Note the wide array of administrative and social sanctions that can be brought to bear on the individual in the context of everyday life within any organization. These sanctions range from the mundane (e.g., ostracizing her in the office cafeteria) to the subtle (e.g., giving her assignments that will cause her career to stagnate) to the devious (e.g., assigning her complex tasks and then penalizing her for incompetence when she fails).60 Needless to say, it can prove extremely difficult for outsiders to detect and counter such retaliatory actions.

Consider in this regard the case of Specialist Joseph Darby, the now-famous whistleblower in the Abu Ghraib prison abuse scandal. Darby, an army reservist, was assigned to Abu Ghraib prison in October 2003. Shortly after his arrival, Darby stumbled across photographic evidence of his fellow military police officers abusing Iraqi detainees. Troubled by what he saw, Darby filed an anonymous complaint with the army’s Criminal Investigation Division in January 2004. The ensuing military investigation led to the indictment and conviction of Darby’s fellow soldiers and helped reveal that Secretary of Defense Donald Rumsfeld had condoned the practices used at Abu Ghraib.⁶¹ Although investigators had promised to keep Darby’s identity secret lest he suffer retribution from fellow soldiers, Secretary Rumsfeld exposed his role in the affair by commending him by name during a televised press conference.62 Darby then had to be “bundled out of Iraq” and provided with “armed protection.”⁶³ In the months that followed, Darby received awards and commendations from civil society groups, but he also received death threats and had property vandalized by those who saw him as having put “American soldiers in prison over Iraqis.”⁶⁴ As one military veteran in Darby’s hometown told the Washington Post, “they can call him what they want. I call him a rat.”⁶⁵ In the end Darby and his wife were compelled to do “everything but change their identities,” including moving to a new town and changing jobs.⁶⁶

Consider as well the case of Coleen Rowley, a former FBI official who shot to prominence in 2002 after lawmakers disclosed to the press a memo she had written to Robert Muller, the director of the FBI, outlining how officials at the FBI headquarters in Washington had prevented her field office in Minneapolis from aggressively investigating the Al-Qaeda operative Zacarias Moussaoui, and thereby from potentially disrupting the 9/11 attacks. Rowley’s memo was praised by lawmakers and the press corps, who saw her candid analysis as offering an “unprecedented indictment” of the FBI’s management.⁶⁷ The public criticism provoked by her memo cast a shadow over the FBI, forcing Director Muller to initiate an inquiry into the organization’s shortcomings.⁶⁸ It was not long before Rowley had to pay a price. Although she optimistically declared before Congress in June 2002 that she had been promised that she would suffer no retaliation for her actions, subsequent events soon “cut into her faith.”⁶⁹ Shortly before being declared Time’s “Person of the Year” in December 2002, Rowley admitted to having been “stung by a nasty backlash” from current and retired FBI agents. The retaliation included whispers of impending criminal charges, public criticism of her “disloyalty,” and informal pressure to resign.⁷⁰ A little under two years later, Rowley retired from the FBI.

The conclusion to be drawn from cases like those of Darby and Rowley is that even if we institute the reforms proposed by advocacy groups such as GAP and POGO, we will not be able to shield national security whistleblowers from a great deal of pain and hardship. There is a very real limit to what the law can accomplish when it comes to deterring informal retaliation. Indeed, scholars who have examined the prospects of ordinary whistleblowers have drawn much the same conclusion. This point was first made nearly three decades ago by Robert Vaughn, who warned after the passage of the Civil Service Reform Act that the greatest difficulty we face in expanding the legal protection afforded to whistleblowers “is that such protection is extraordinarily difficult to provide within a bureaucracy,” because so many ways of “penalizing a whistleblower are either not the subject of protection or extremely difficult to prove.”⁷¹ This observation has since been reiterated by Mark Bovens, who has argued that experience with whistleblower protections in the United States has highlighted just how difficult it is for outsiders to “straighten out completely the fundamental differences in power that exist within hierarchical organizations.”72 The efforts of reformers, he writes, have “come up against the limits of the law.”⁷³

If scholars are pessimistic about using the law to shield ordinary whistleblowers from informal retaliation, then there can be little hope for national security whistleblowers working within the recesses of secretive intelligence agencies. Admittedly, it is hard to know the frequency with which national security whistleblowers are subjected to informal retaliation. However, in one survey of ordinary whistleblowers, 66 percent of respondents claimed to have experienced informal retaliation, while another study has shown that 87 percent of ordinary whistleblowers who have experienced formal retaliation have also experienced informal retaliation.⁷⁴ It seems fair to assume that the incidence of this sort of retaliation is likely to be even higher in the national security domain, as a whistleblower’s colleagues and managers are likely to be emboldened by the knowledge that their actions will be shrouded in secrecy.⁷⁵

Courage or Anonymity?

We have now established how difficult it is to protect whistleblowers against retaliation, especially when the retaliation is informal in nature. This finding implies that though unauthorized disclosures of classified information can be justified under certain conditions, officials will have little incentive to fulfill the required conditions, especially the requirement that they be willing to identify themselves. To be sure, officials will not always be obliged to identify themselves. If an unauthorized disclosure reveals gross wrongdoing, then the source of that disclosure need not reveal her identity. However, for the reasons discussed earlier, national security whistleblowers are more likely to expose cases of suspected wrongdoing, which in turn makes it important that we know their identities so that we can scrutinize their motives. But if officials have little incentive to reveal their identity, then would-be national security whistleblowers are likely either to “swallow the whistle” or to make disclosures anonymously. Or are they? Is there reason to think that officials will actually be willing to make unauthorized disclosures in the prescribed manner in spite of the risk of retaliation?

There is some reason for hope. As we have seen, at least a small proportion of officials do blow the whistle in spite of the threat of retaliation. If we are able to pinpoint and support the factors that prompt officials to act this way, then perhaps we will be able to increase over time the proportion of public servants willing to openly sound the alarm whenever they come across wrongdoing. To this end, scholars including Myron Glazer and Penina Glazer, Philip Jos, and Peter Robinson have emphasized the importance of fostering a “social climate” that “supports and defends” whistleblowers, citing in particular the need for more and better-funded professional support groups that can provide advice, fund appeals, and rally public support on behalf of individuals who have hazarded their careers in order to expose wrongdoing.76

But how far really can we count on such measures to increase the proportion of officials willing to blow the whistle? Although such measures may reduce the suffering experienced by officials after they have blown the whistle, it is hard to believe that these measures could substantially affect the calculus that officials confront before they do so. After all, this calculus really is quite grim. An official who is contemplating blowing the whistle must envision trading her peace of mind for the uncertain and remote possibility that she will have the desired effect on policy and be accorded due recognition. Under these circumstances, the prospect of having one’s legal costs covered must surely add little to the balance. Indeed, little could compensate for the loss of one’s accumulated expertise and professional networks and status, especially since individuals who work in the field of national security are not likely to easily find equivalent work in the private sector. One cannot help doubting the assumption, implicit in most proposals intended to bolster whistleblowing, that the actions of the average whistleblower are the product of a rational cost-benefit analysis. No doubt the provision of financial incentives or rewards for whistleblowing could—on the margin—encourage officials to blow the whistle. But if we want to bolster whistleblowing more generally, then it seems we need to understand and build upon the psychological processes that grant an individual the fortitude to challenge senior officials even when it is effectively irrational for her to do so.

What might this psychological process be? It has been argued, quite plausibly, that since the act of whistleblowing pits “a relatively powerless and isolated individual against a powerful company or institution,” an individual’s willingness to blow the whistle must ultimately hinge on her courageousness.⁷⁷ As Geoffrey Scarre has observed, whistleblowing “always calls for the moral courage to risk ostracism, unpopularity with colleagues, bosses and other superiors, and the setting of an invisible ceiling to one’s career prospects.”⁷⁸ Can we cultivate courage in our public servants? The challenge we face is made clear when we meditate on research into the psychic motives that propel whistleblowers to risk their own well-being. There are two accounts on offer. The first is that whistleblowers are driven by a deep commitment to particular religious or moral values. This claim has been borne out in one large survey of former whistleblowers wherein 58 percent of the respondents “not only expressed support for universal moral rules but responded that such rules ought to apply without exception.”79 The other claim is that whistleblowers are ultimately motivated by “moral narcissism.” This is the view put forward by Fred Alford, who has persuasively argued that empathy or altruism alone cannot really explain a whistleblower’s willingness to “put one’s life, or livelihood, on the line for the sake of others.”⁸⁰ His carefully drawn case studies suggest that it is “narcissism moralized”—a whistleblower’s conviction that her actions embody morality—that “provides a quite literally selfish motive for people to sacrifice the apparently objective interests of the self.”⁸¹

If it is true that whistleblowers are motivated by moral conviction or moral narcissism, then, ironically, it may actually be inadvisable to increase the proportion of government employees who have either of these characteristics. Individuals who are enamored of abstract moral ideas or see their own choices as embodying morality itself are going to be prone to “situational blindness”—that is, they are unlikely to appreciate the compromises and concessions that are often required to further the cause of morality in politics, particularly in the international domain. Such individuals may simply refuse to give up operating “according to the rules.”⁸² Alternatively, when there is disagreement over the rules that ought to be followed, they may decide too readily that their interpretation of the rules is the better one. This charge has been leveled against Rowley, one of the whistleblowers we discussed earlier. Rowley, it will be recalled, complained to Congress about bungling at the FBI after senior officials declined to act on her request for a warrant to search the properties of the individuals who would go on to launch the 9/11 attacks. Critics, however, have since faulted her for failing to appreciate legal complexities: FBI lawyers, they contend, declined to issue the warrants she requested because the evidence she provided them did not satisfy the Fourth Amendment’s probable cause standard.⁸³

This is not to say that individuals with strong moral convictions are undesirable. Arguably, such “difficult people” (as they are sometimes termed) constitute a vital backstop within the national security apparatus because they are the ones likeliest to refuse to tolerate the sorts of great wrongs that their more “flexible” (i.e., careerist and self-interested) colleagues and managers may readily sweep under the carpet. Nevertheless, it is not clear that we would want to greatly increase the presence of such “difficult people” in the national security apparatus, because what this domain calls for is not only the courage to risk one’s career and peace of mind on behalf of the public, but also the prudence to ensure that courage is employed in the service of wisdom rather than dogmatism. Besides, it is not clear that we could increase the numbers of such people even if we wanted to. For if whistleblowing is ultimately driven by moral conviction or moral narcissism, then we will be hard-pressed to systematically cultivate either of these dispositions, as they are likely to take shape long before individuals enter public service. As a result, it seems sensible to assume that whistleblowers are, as the saying goes, “born, not made.”84

If we cannot rely on courage—that is, if we cannot count on officials to put themselves in the firing line by openly declaring their concerns about potentially wrongful secret policies and activities—then where does that leave us? Must we conclude that unauthorized disclosures will continue to be—as they are now—primarily anonymous and therefore suspect? Or can we point to the pervasiveness of retaliation, and to the limits of our right and ability to cultivate courage, as reasons to relax the requirement that officials be willing to identify themselves? That is to say, can we justify the practice of leaking? If so, then the challenge is to explain how we might prevent self-interested or overzealous officials from exploiting anonymity. We also need to explain what reason there is to believe that well-intentioned officials will be able to leak classified information without being detected. These are the questions we will examine next. If we are able to answer these questions in the affirmative, we will have solved the dilemma posed in chapter 1, because then we will not only be able to count on officials’ raising the alarm; we will also be able to distinguish between true and false alarms.