National Whistleblower Day

Just before the holiday, the American Bar Association published a statement on its “Legal Fact Check” webpage concluding that the whistleblower’s identity is NOT Protected by the law.

The lawyer for the White House whistleblower has asked that the person’s identity be kept anonymous for the protection of the individual and his or her family. With some exceptions, lawmakers and media have honored that request. But in terms of federal law, the whistleblower has more assurance that his or her job, rather than identity, will be protected.

They conclude that the Intelligence Community Whistleblower Protection Act (ICWPA) stipulates that the inspector general not disclose a whistleblower’s identity without their consent, unless it is “unavoidable during the course of the investigation.” The ICWPA itself offers no further protections, they write, but other laws may offer protection from reprisals or punishment.

Stephen M. Kohn, board chair of the National WhistleBlower disagrees and makes his case in the National Law Review.

He starts with the privacy provisions in the disclosure form filled out IC whistleblowers.

The Disclosure Form provides intelligence community employees with two assurances that their confidentiality will be protected.  First, the Form states that the information provided by whistleblowers is covered under the Privacy Act.  The Privacy Act of 1974, 5 U.S.C. § 552a was passed after the Nixon White House was caught trying to obtain embarrassing information about another whistleblower, Daniel Ellsberg, in an attempt to discredit him.  The Privacy Act is very comprehensive and contains both criminal and civil penalties. 

The law also prohibits retaliation. Kohn argues that disclosure of the name is a form of retaliation.

Supporters of President Trump have argued that this law only protects whistleblowers from concrete employment actions, such as a termination or demotion.  They claim that guarding a confidential informant’s identity is not prohibited under the ICWPA, and the blowing a whistleblower’s cover is not an adverse action.

Years ago the U.S. Supreme Court ruled that anti-retaliation laws are not limited only to correcting “concrete” employment actions, like a discharge.  Instead, these laws cover a host of adverse actions that could “dissuade a reasonable employee” from making a protected disclosure.   If CIA or intelligence community employees feared that the privacy protections afforded under the law would not be applied to them, would that cause a chilling effect on their willingness to blow the whistle?  That question has been answered many times.  But even if there were no cases on-point, the disclosure of a CIA employee’s identity would severely limit, if not destroy, their employment prospects with that highly secretive agency.  

He argues that the ICWPA gives the president “enforcement authority” and thus the responsibility to prevent retaliation.

President Trump is mandated by law to protect the Ukraine whistleblower, ensure that he or she suffers no retaliation, and enforce the rules on confidentiality.  This is a non-discretionary duty. 

It is as simple as that.  The President “shall” “enforce” the whistleblower law that makes it illegal to retaliate against the Ukraine whistleblower or to expose his or her identity.  Unfortunately, as demonstrated by his public comments and Tweets, it is the President himself who is engaging in the retaliation.  This is a unique circumstance in American legal history.

President Trump’s retweet of an article that claims to identify the the whistleblower means the system failed, Kohn writes. 

When the Ukraine whistleblower signed the Disclosure Form to report an “urgent concern,” she or he was promised, in writing, confidentiality.  That promise was broken.  Privacy Act protections were ignored.  The Inspector General Act was undermined. The law prohibiting retaliation was violated by the very person mandated to enforce that law.  The Attorney General has sat on his hands while credible evidence of obstruction of justice was published in the national news media, on almost a daily basis.  

Will justice sleep forever?  This issue is now in the hands of Congress.   In November it will be in the hands of the American people. 

Audio: More from Kohn on protection for federal workers via The Federal News Network