Yesterday, POTUS signed a touted “Whistleblower Protection Enhancement Act” which was passed unanimously by the Senate. Relatively short, it appears to strengthen protections against government-led retaliatory acts against government employees who report some evidence of wrongdoing. On the face of it, it looks as if it leans in a positive direction towards creating space for raising complaints of ethical violations.
And indeed most media stories, from the New York Times to the WSJ blog reported it the same way. As the NYT described:
Capping a 13-year effort by supporters of whistle-blower rights, the new law closes loopholes created by court rulings, which removed protections for federal whistle-blowers. One loophole specified that whistle-blowers were only protected when they were the first to report misconduct.
Truthdig had a slightly more critical take, wondering how this would help Bradley Manning.
Really. A new bill to protect whistleblowers. Let’s take a look (pdf of bill here).
There is a curiously worded section that seems to speak to the same ambiguities that are under dispute in the situations of multiple whistleblowers—most notably Bradley Manning and John Kiriakou, among others. In Section 102, after a series of clarifications about the range of evidence that an employee “disclosure” can include, there is a description what a disclosure “does not include.”
On the face of it, this exemption to protected disclosures sounds right. Administrators at any organization make discretionary judgments, and it is an obstacle to question discretionary policy decisions unless there is a compelling reason—like a violation of a rule or law or regulation—to object. But the wording is interesting: it exempts communications of those disclosures. It exempts leaks unless there is a reason to believe that it evidences a violation of law.
So how are we supposed to know whether it does or doesn’t show a violation of law?
Section 103 tells us that the determination will be made by someone (a Senate Committee?) determining whether a disinterested observer who has access to all the facts would “reasonably conclude” that the disclosure evidenced a violation of a rule or law.
Again, in light of most urgent whistleblower prosecution underway, namely the military trial of Bradley Manning, it’s hard to know whether this bill creates new protective measures or assumes the very question that’s at stake:
Communications that show immoral conduct or unethical policies will be determined to be unlawful leaks—precisely because the gap between immorality and illegality is miles and miles long.
Judging from the last 11 years of US prosecutions of whistleblowers, communications regarding the torture of countless human beings who are assumed to be terrorists, or footage of dropping bombs on civilians who are trying to rescue their families from US attacks—will not show evidence of illegality—even when they show heinous, horrific, evidence of immorality.
The “ideal” disinterested observer, judging from the last 11 years of U.S policies, appears to be similar to the Neoclassicals’ Homo Economicus: a rational agent who acts purely out of self-interest (which counts as objective action), doesn’t bring “ideology” into his calculations, and somehow often has near complete knowledge.
In other words, the ideal disinterested observer is close to impossible—unless it is someone who sides utterly with the official objectives of US national intelligence and foreign policy.
And sure enough, for the current Administration (and tragically, for any future “electable” Administration), only unmitigated hawks who have complete and uncritical faith in the way the lines of “national security” have been drawn—will count as disinterested observers. Seriously, does Congress want to tell us that it is likely that the US will view these communications through the lens of Medea Benjamin or Jameel Jaffer or Jeremy Scahill? Please. Much more likely, that it will be through the “disinterested” lens of Joshua Foust, Glen Beck, or Ann Coulter.
A disinterested observer who reasonably concludes, i.e. who would interpret that a communication evidences a violation of law qua the US Constitution, will NEVER–under this Administration–be the model for deciding that a classified email or memo or US national intelligence footage of bombs dropping on civilians—is immoral, and therefore constitutes a violation of (human rights) law.
The immediate objection that a Rightwinger or Obamabot will give (as disinterested observers) is that the Constitution can’t be the basis by which to determine that an email or memo or video footage violated a law or a rule—because the Constitution contains principles and not “rules” or “laws.” And therein lies the rub. The gap between immorality and illegality will be closed through the emphasis on rules. Rules. Convenient when persecuting whistleblowers. Not so much when organizing procedural trials, as Kevin Gosztola or Nathan Fuller will tell you.
So Congress and POTUS are probably feeling incredible jubilant and gratified. Why not? They have managed to re-invent the same dreadful immoral wheel of persecuting whistleblowers while pretending that they’ve made advances in protecting them.
Update: Also, here is Jesselyn Radack’s analysis of the WPEA. She is also quite critical of it, but on different grounds.
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