Opinion

Opinion | Nancy Gertner

One man’s leaker is another man’s whistleblower

Whistle blower or whistleblower concept as a symbol of a secret informer agent posing as an employee with his cast shadow of a whistle as a metaphor for inside infoermation on misconduct in a 3D illustration style.

AP

President Trump is notoriously obsessed with leaks in his administration — so much so that Attorney General Jeff Sessions made leak investigation a Department of Justice priority. But one man’s leak is another man’s whistleblower. And, with a few exceptions, like the leaking of classified information, whistleblowing is often encouraged, even legally protected.

Though the word “whistleblower” was reportedly coined by consumer activist Ralph Nader in the early 1970s, it covers activity as old as the Republic. In the winter of 1777, months after the signing of the Declaration of Independence, 10 revolutionary sailors and marines met in secret to discuss their concerns about the commander of the Continental Navy and his brutal treatment of captured British sailors. They presented their grievances to the Continental Congress, which then voted to suspend the commander. After the commander retaliated by filing suit against the whistleblowers, Congress passed America’s first whistleblower protection act.

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Whistleblowers, generally, are the insiders — in government, in industry, in the scientific and political establishments — whose moral compass compels them to come forward when those around them are engaged in wrongful behavior. In the late 1960s through the 1970s, the whistleblowers were consumer advocates like Nader, who used information gathered from industry insiders to argue that General Motors had placed an unsafe vehicle, the Corvair, on our roadways. In 1996, Jeffrey Wigand, a former vice president of research at the tobacco company Brown & Williamson, claimed that the company intentionally manipulated its tobacco blend with ammonia to increase the effect of nicotine in cigarette smoke. His truth-telling helped change the way cigarettes were marketed and regulated. Whistleblowers enable the essential oversight that a free press brings — as with the leak of the Pentagon Papers, which showed that the government knew early on that the Vietnam War could not be won, or the Watergate reporting, which disclosed criminality at the highest levels of government, or leaks by combat serviceman during the Vietnam War that revealed the execution of civilians at My Lai.

Of course, whistleblowers will be attacked — as “leakers” or “snitches,” even un-American. But in fact, in statute after statute, federal and state, year after year, whistleblowing is encouraged. In 1986, for example, Congress passed the federal False Claims Act, which allows citizens to bring suit in the name of the United States government against those individuals or entities that have caused the wrongful expenditure of government dollars.

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While actions under the FCA are premised on wrongful claims for government money, they have broader implications. They expose improprieties in, for example, our health care system. From litigation against major pharmaceutical companies to claims brought against doctors and hospitals, the FCA sunshine on unlawful practices has been — to paraphrase Supreme Court Justice Louis Brandeis — the disinfectant ridding the system of activity that places patients at risk.

The False Claims Act rewards whistleblowers with a “bounty” from money recovered; it also protects their employment. The FCA and at least 100 other federal laws and regulations make it unlawful for anyone to fire a whistleblower or discriminate against him. And this includes not just the company that is the target of the leak, but also any other companies employing the leaker. Indeed, the cost of retaliation to any employer is high, as in the case of Department of Veterans Affairs employees who exposed wrongdoing in connection with a Phoenix VA hospital, or the Marine Corps whistleblower whose disclosures ended delays in delivering life-saving vehicles to Iraq and Afghanistan. Depending on the conduct and the circumstances, retaliation against a whistleblower could even amount to criminal obstruction of justice.

Congress just celebrated the annual National Whistleblower Day to honor those who risk their careers and reputations by reporting waste, fraud, and abuse. And that is as it should be. From our president on down, it is time to thank these people who have already made American great.

Nancy Gertner, a retired federal judge, is a professor at Harvard Law School.
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