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OPINION

A hit to whistleblowers’ cost-benefit calculus

By ERIC R. HAVIAN | Special to The Washington Post | Published: September 23, 2019

When news broke that the Trump administration had refused to provide Congress with the details of a formal complaint filed by a U.S. intelligence official who was troubled by a “promise” the president had made to a foreign leader, many politicians and ordinary citizens were alarmed. But another group with a more personal stake is quietly observing these events with even greater trepidation: potential national security whistleblowers.

If someone within the national security apparatus knows of activity that may not comply with the law and is considering whether to come forward, the cost-benefit calculus just took a turn for the worse.

Whistleblowers are almost always ambivalent about speaking up. Typically, they have a strong urge to call attention to wrongdoing, but they also must weigh the likely consequences. Plenty of people celebrate whistleblowers; others view them as “tattletales,” not “team players” or worse.

Most whistleblowers make a fundamentally simple calculation. The upside is exposure of wrongdoing, the satisfaction of seeing it redressed, a clear conscience and, sometimes, a financial reward. The downside includes possible loss of employment and, often, scorn from co-workers and others.

New whistleblower laws enacted over the past three decades have tipped the calculus decidedly in favor of disclosure. The False Claims Act, as amended in 1986, created rewards for whistleblowers of 15% to 30% of the amounts recovered from companies or contractors who defraud the federal government. The 2010 Dodd-Frank securities law and 1996 IRS tax law created whistleblower rewards of 10% to 30% of the fines imposed on securities violators and large-scale tax cheats.

These laws also established serious penalties for companies that retaliate against whistleblowers, who might otherwise worry about being fired for coming forward. The laws thus sweetened the upside and blunted the downside for would-be whistleblowers.

The result was an explosion of whistleblowing and billions of clawed-back dollars flowing to the Treasury Department. Since the 1986 False Claims Act amendments, whistleblower cases have returned $42 billion to the government, of which $7 billion has been paid to those who exposed the lawlessness. The more recently enacted securities and IRS laws have seen similar results.

These financial rewards programs are unlikely to apply in the case of a national security whistleblower, so the cost-benefit assessment often stays close to equilibrium, with only a nudge needed to tip the scales in favor of silence.

The Trump administration has instead given the scales a rough shove.

The national security whistleblower who was worried about the implications of the president’s communications with a foreign leader took those concerns to the inspector general for the intelligence community. The inspector general investigated and then reported the complaint to the Office of the Director of National Intelligence as “credible” and a matter of “urgent concern.”

That term would have legally prompted disclosures to Congress about the complaint, but a DNI lawyer rejected the inspector general’s assessment.

Now Congress is fighting to gain access to the report. But a discouraging message has already gone out to anyone in the intelligence community who might be thinking about reporting potentially dangerous behavior: Just because you blow the whistle doesn’t mean anyone will hear it. That effectively eliminates the most important upside of coming forward: exposure of wrongdoing and the satisfaction of seeing that wrongdoing addressed.

The whistleblower in the current fracas has the worst of all worlds. He or she found the courage to speak out, but the message was blocked by the administration; going public would be a drastic step, because the Espionage Act, a very broad law that punishes anyone who discloses national security information, is a powerful deterrent to whistleblowing in national security matters. The whistleblower made a cost-benefit calculation, raised an alarm and discovered that the benefit — exposure of potential wrongdoing — may never materialize.

On the cost side, it is not hard to imagine that senior intelligence officials are aware of the whistleblower’s identity and, as servants of a president who prizes fealty above all else, would search for a pretext to have the person fired.

As concerns have mounted over the past few years about the administration’s handling of national security, so too has the need for potential whistleblowers in the intelligence community to feel confident that they will be heard. To that end, Congress should consider measures like those in the False Claims Act and other laws that reward such whistleblowers and protect them from retaliation.

Somewhere, someone with a security clearance is watching the fate of the unnamed national security whistleblower and the fate of the alarm the whistleblower raised. As the battle between the Trump administration and Congress continues, the way the scales ultimately tip may dictate whether the nation learns about possible malfeasance of even greater, more urgent concern.

Eric R. Havian, a former federal prosecutor, is an attorney with Constantine Cannon and has represented whistleblowers for 25 years.

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