Love Them Or Hate Them, Whistleblowers Shape American Democracy

12/22/2016 02:20 pm ET Updated Dec 22, 2016

How many times do we teach children not to tattle? While that may be a good lesson for the playground, it’s not always so simple in the real world. Today, more than ever before, society must rely on its members to report corruption from within. After all, evil can only prevail if good men stand by and do nothing. And that’s nothing new...

“The World is a dangerous place, not because of those who do evil, but because of those who look on and do nothing.” ~Albert
“The World is a dangerous place, not because of those who do evil, but because of those who look on and do nothing.” ~Albert Einstein

History provides evidence that the world's lawmakers relied on private citizens to deter illegal schemes as early as the 7th century. Since that time, governments and organizations around the globe have utilized reports from insiders to maintain safe and efficient practices. Without those brave individuals, governments and businesses would easily be corrupted by those seeking to lie, cheat and steal their way toward personal gain, despite public loss. Without the integrity of these informants, society would suffer from more waste, immorality, fraud, mismanagement and abuse of power in both its private and public sectors. And although the noble act is a vital tool in protecting the public from corruption, when deciding to speak out the whistleblower can face repercussions ranging from legal action and criminal charges to termination of employment and social stigma.

Although the risk of retaliation is real, many nations – including the United States – offer a variety of legal protections for whistleblowers. The myriad of statutes protecting this form of speech – and their application – is varied and difficult to navigate. For example, while whistleblowers working for the federal government are protected by the Whistleblower Protection Enhancement Act, Wall Street informants are protected by the Dodd-Frank Wall Street Reform and Consumer Protection Act, and many food-industry employees are protected by the Food Safety Modernization Act. Therefore, whistleblowers – whether reporting fraud against the government or unscrupulous business practices – sometimes get a financial reward in return.

Whistleblowing in American History

“All tyranny needs to gain foothold is for people of good conscience to remain silent.” ~ Thomas Jefferson
“All tyranny needs to gain foothold is for people of good conscience to remain silent.” ~ Thomas Jefferson

Just as much of early American law was based on the statutes of Mother England, whistleblowing protections in the United States are rooted in the qui tam policies of Medieval Great Britain. In 695, King Wihtred of Kent declared:

"If a freeman works during the Sabbath, he shall forfeit his profits, and the man who informs against him shall have half the fine, and the profits of labor."

In making the declaration, Wihtred enacted a law that allowed private individuals to collect a bounty for reporting violations. Such laws are now referred to as qui tam, short for a longer Latin phrase that translates to, "he who prosecutes for himself as well as for the King."

Today, the term is applied to False Claims Act cases in the United States. Originally signed by Abraham Lincoln, the federal law forbids falsely claiming payments from the federal government. If the taxpayers are footing the bill – whether through Medicare payments, research grants or defense contracting – reporting the fraud is covered by the FCA. And under the qui tam provision, those who sue for fraud on behalf of taxpayers may receive as much as 30 percent of the money they heled recover as a reward. The FCA also importantly protects whistleblowers from retaliation.

The American culture of whistleblowing is far older than the FCA, however, and even older than the nation itself. A 1686 colonial law, for example, rewarded inspectors who reported fraud in the sale of bread with one-third of the collected fines. Patriot Benjamin Franklin became one of the first American whistleblowers in 1773 when he exposed confidential letters that revealed the governor of the Massachusetts colony intentionally misled Parliament to increase military presence in the colonies.

It wasn't until the Civil War, however, that greater emphasis was placed on federal whistleblowing in an attempt to curb the rampant profiteering and fraud that was crippling both the Union and Confederate armies. Corrupt defense contractors sold the already ailing armies lame mules, defective weapons and spoiled rations that made soldiers sick with dysentery and scurvy. By enacting the False Claims Act in 1863, Congress combatted the unlawful and even more unpatriotic practices by providing individuals a way to sue contractors on behalf of the United States. Successful plaintiffs were then awarded half the recovered monies.

By World War II, however, the FCA saw a decline as greater government spending afforded the Department of Justice to investigate and prosecute future war profiteers. But the waning federal qui tam cases did not put an end to whistleblowing entirely. In fact, some of American history's most important informants were yet to take the stage.

Were it not for whistleblowing, the American public may have never known about the Pentagon Papers, which showed multiple administrations had lied to both the American people and Congress about their intents and actions in Vietnam. And were it not for the now-infamous whistleblower known as "Deep Throat," the Watergate scandal never may have come to light. Whistleblowers have helped to reveal safety issues at nuclear power plants, unsafe automobile designs, false billings by federal contractors and misleading health claims made by government agencies.

Whistleblowing Post-911

Some call him a hero, others label the professional hacker a criminal, but few Americans deny Edward Snowden's impact on the post-911 balance of national security and an individual's right to privacy. A former CIA employee who colleagues called, "a genius among geniuses," Snowden famously leaked classified information from the National Security Agency in 2013, revealing global surveillance programs secretly tracking the public en masse. Right or wrong, Snowden's acts incited important debate on privacy versus intelligence. And in 2015 the U.S. Circuit Court of Appeals ruled the Patriot Act did not authorize the NSA to collect Americans' calling records in bulk, as exposed by Snowden, and less than a month later the U.S. Senate imposed limits on the bulk collection of U.S. citizens' telecommunication data.

"Love him or hate him, we all owe Snowden our thanks for forcing upon the nation an important debate," Sen. Bernie Sanders blogged in 2013. "But the debate shouldn't be about him. It should be about the gnawing questions his actions raised from the shadows."

As we all know, things didn't work out so great for Snowden, who has been seeking foreign asylum ever since. He still faces multiple counts of violating the Espionage Act of 1917 and theft of government property.

Earlier this year, U.S. Attorney General Eric Holder both lauded and criticized Snowden, stating the wanted exile "performed a public service by raising the debate that we engaged in and by the changes that we made," yet his actions were still "inappropriate and illegal."

Such is the quandary of potential whistleblowers in the ongoing post-911 climate. The Obama administration employed the World War I-era Espionage Act a record six times to prosecute government officials suspected of leaking classified information. The administration even went after the press, once a trusted resource of anonymous whistleblowers, by secretly obtaining reporters' emails and phone records, threatening prison if they didn't reveal government sources.

If Obama and his cronies had only foreseen the election of Donald J. Trump, they may have thought twice about the precedents they set. The president-elect has made no qualms about his ire for media that doesn't follow his agenda, suggesting the nation should "open up" libel laws and make it easier to punish the press for negative or unfair stories.

If Trump is so harshly critical of those who publicly criticize him, how will his administration handle those who leak information, even with taxpayers' best interests in mind? The whole purpose of protecting whistleblowers is so they can freely expose waste, fraud, abuse and other illegal activity. What will happen when people are no longer willing to step forward? Corruption on all levels will surely run rampant, victimizing the democracy Americans hold dear.

  “One thing I learned as a journalist is that there is at least one  disgruntled person in every workplace in America -- and
“One thing I learned as a journalist is that there is at least one disgruntled person in every workplace in America -- and at least double that number with a conscience. Hard as they try, they simply can't turn their heads away from an injustice when they see one taking place.” ~Michael Moore, Here Comes Trouble

Whistleblowers shouldn't be punished for doing the right thing, whether it's reporting wrongdoing within a company or fraud within the government. Their freedom and careers should not be in peril because they demonstrate courage and integrity. It's now the responsibility for all Americans to stand up for what is right. And those under threat of persecution? Don't back down.

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