The U. S. must protect whistleblowers and the world must follow

It is universally acknowledged that whistleblowers are vital to ensuring that the federal government operates ethically and is accountable. They disclose violations of law, wasteful spending, corruption, misconduct, and abuse of authority. And there are plenty of laws in the United States, Europe, and a few other countries to protect whistleblowers from retaliation for their disclosures. Yet, they are barely protected in fact because of loopholes in the law; they are often ridiculed, threatened, and punished — fired, demoted, reassigned, and blacklisted.

Take, for example, the case of a CIA officer who last August filed an official whistleblower complaint to the intelligence community’s Inspector General about a July 25 phone call by President Donald Trump to President Vladomyr Zelensky of Ukraine. The officer was working at the White House and it was his complaint that led to the impeachment of President Trump. Trump was furious, branded the whistleblower a spy, and said that he should be treated as spies were, “in the old days.” The president wanted him outed and that’s what his allies did, although whistleblowers are guaranteed the right to anonymity. He has since left the CIA. And what about the Inspector General who reported it to the House Intelligence Committee? President Trump fired him.

And what about the whistleblower’s lawyer, Mark Zaid? His malpractice insurer, the Hanover Insurance Group, dropped him last month, saying that it had no “appetite” for Mr. Zaid’s “high profile” work. I have known Mark for several decades and have worked with him on international criminal law issues. He is a lawyer of great integrity. We spoke on Wednesday and he commented, “The reality is that in practice the U. S. government routinely retaliates against whistleblowers and protections are few without assistance of experienced legal counsel.”

The U. S. has led the world in whistleblower protection since the first whistleblower protection law, from 1778, to the one currently applicable, the Whistleblower Protection Act of

1989. The law protects whistleblowers who confidentially report to the Office of Inspector General or the Office of Special Counsel any violation of law, mismanagement, wasteful spending, or abuse of authority, and their identity must be kept confidential.

An intelligence community whistleblower is protected as she or he raises “urgent concerns” with the Inspector General, believing that the actions evidence violations of law — definitive proof is not necessary. The IG must alert the House and Senate Intelligence Committees after confirming that these allegations are “significant.” That is exactly what the whistleblower and the Inspector General did on the Ukraine call, by strictly following this protocol.

Notwithstanding these protections on paper, whistleblowers have no mechanism available to them to enforce their statutory protections. To illustrate, the Merit Systems Protection

Board, which is authorized to provide temporary relief from personnel actions to federal whistleblowers while their cases are pending, is currently unmanned.

In contrast with the U. S., Europe has lagged behind in providing protection to whistleblowers, with only a few countries having the relevant laws and procedures, and only for specific sectors. Consider the case of Robert Macías, an official of one of Spain’s two main labor unions, who downloaded thousands of computer files in his workplace as he became suspicious that several officials of the union were misusing public money. The union discovered his identity and he was charged with leaking the information to the press instead of going to his employer, as required by Spanish law on confidentially in the workplace.

As Spain does not protect whistleblowers, he was sentenced to two years. But last

December, the European Union enacted a comprehensive directive on whistleblower protection, legally binding on its members, and Macías has appealed his conviction under this law.

The U. S. whistleblower law needs to be reformed, as well, to strengthen its protections — the legal right to anonymity must be assured and whistleblowers should be entitled to challenge retaliation, including exposure of their identity. They should also be permitted to take the retaliation complaints directly to a court.

Without strengthening their protection for whistleblowers, the laws are not that meaningful.

Ved Nanda is a distinguished university professor and director of the Ved Nanda Center for International Law at the University of Denver Sturm College of Law. His column appears the last Sunday of each month and he welcomes comments at vnanda@ law. du. edu.