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Edward Snowden and The Myth of Whistleblower Protection

There is a connection between Edward Snowden and the False Claims Act that I would like to point it out to you. First, here are a couple of disclaimers.  Some of what I am writing about includes coverage in the Guardian, where I know some people, including one of the people writing the stories.

Second, I’m writing this in fully aware that blogging about Snowden may get more attention than blogging about implied certification theory for example, but hey you can only write about the intricacies of False Claims Act law so often.

The Guardian printed a long series of articles (a book excerpt!) detailing how Edward Snowden and Thomas Drake found that they really did not have the whistleblower protection working for the government that they expected to have.

Contrary to the many pronouncements of public figures who decried Snowden for going public because supposedly he could have reported internally, National Security Whistleblowers do not enjoy legal protection. While there are certainly many honorable officials who would not abuse their authority within the Pentagon, such internal reporting invariably makes it unsafe for a whistleblower.  Crucially, it only takes one high profile situation to scare anyone from coming forward.

The view that Snowden should have found another way to make this work is perpetuated even by those like Former Attorney General Eric Holder who recently recognized the importance of the information provided on one hand, yet at the same time says that Snowden should face consequences, because he went public rather than staying inside.

Meanwhile, if you want to understand just how perilous it is to be a whistleblower in this area, check out what happened to Mr. Drake as relayed by a Pentagon official:

“The account of John Crane, a former senior Pentagon investigator, appears to undermine Barack Obama, Hillary Clinton and other major establishment figures who argue that there were established routes for Snowden other than leaking to the media. Crane, a longtime assistant inspector general at the Pentagon, has accused his old office of retaliating against a major surveillance whistleblower, Thomas Drake, in an episode that helps explain Snowden’s 2013 National Security Agency disclosures. Not only did Pentagon officials provide Drake’s name to criminal investigators, Crane told the Guardian, they destroyed documents relevant to his defence.”

That’s the UK spelling of what we call “defense” here in America. Yes, National Security is different than False Claims cases (although there are False Claims cases, which do touch on it.) I do not claim to understand national security procedures or know what process needs to be in place in this realm, but absent whistleblowers, there will be more problems which will not be addressed.

What is intriguing about all this from a False Claims Act perspective, is the internal reporting advocated by so many who may claim to support the False Claims Act appears not only not to have worked, but to have backfired in this context. Since Snowden felt there was no safe place to report, he went public.

Had there been a safe place for him to report he may not have gone public. Internal reporting did not work in the Pentagon when government officials had only their reputations and the security of the United States to consider…but they still crushed a whistleblower. Again, such retribution only has to happen once to create a chilling effect. Snowden apparently knew what happened to Drake.

The Drake Case did not involve people that were worried about the protection of their personal fortunes or their company as is the case of a potential fraudster in a False Claims Act case.

Yet, the number one so-called fix or improvement of the False Claims Act that the Chamber of Commerce et. al want to visit upon us is to require internal reporting for any whistleblower who wants to make a False Claims Act case. They want to essentially force the whistleblower to remain in-house.

There is some question at least, how well that works (I’m putting it mildly) even in the context of government agencies charged with protecting the public interest. While national security may require special procedures, how is internal reporting supposed to work inside a corporation with a duty to make money and with officers who are not accountable to the public in any way and may also be involved in the wrongdoing?

It won’t work, at least it won’t work for the whistleblower.

Requiring internal reporting for whistleblowers in a private company provides that company with more opportunity to oppress the whistleblower and sweep the issue away. Even among those companies blessed with good management, that kind of opportunity might be too big a temptation for a rogue manager to resist.

Fortunately, reporting fraud committed against the government does not currently require an employee to report internally, which is part of the reason for the False Claims Act’s success. We should make sure the whistleblower has somewhere else to go if we really want to find out what is happening and if we really want the whistleblower to report.

The ability of a whistleblower to report outside of their company or if you will outside the chain of command, is a must if we expect their complaints to receive any real attention and if we expect whistleblowers to serve us with the real information only they have.

Ask Thomas Drake how internal reporting worked for him.