Unfortunately, the terms "leaking" and "whistle-blowing" are often used synonymously to describe the public disclosure of information that is otherwise secret. Both acts have the effect of damaging the subject of the revelation. But leaking is quite different from blowing the whistle. The difference turns on the substance of the information disclosed. The Whistleblower Protection Act protects the disclosure of information that a government employee reasonably believes evidences fraud, waste, abuse or a danger to public health or safety. But far too often, whistle-blowers are retaliated against, with criminal prosecution being one of the sharpest weapons in the government's arsenal.
For example, Daniel Ellsberg, the patriarch of whistle-blowers in modern times, disclosed the Pentagon Papers, a secret government study of the Vietnam War, to the New York Times. The publication of the papers helped to end the Vietnam War. But Ellsberg was still prosecuted. Tamm revealed an indisputably illegal secret surveillance program, but he has been under criminal investigation since Dec. 30, 2005, a case that remains open. I am still under investigation by the Washington, D.C., bar after nearly seven years, despite the hypocrisy of the Justice Department in declining to prosecute -- much less refer to licensing bars -- the lawyers who wrote the torture memos related to detainees after 9/11.
In contrast, when I. Lewis "Scooter" Libby, Vice President Dick Cheney's chief of staff, unmasked covert CIA operative Valerie Plame, he was not trying to disclose evidence of wrongdoing; in fact, quite the opposite. He put at risk national security and people's lives to undermine a critic. He was trying to punish former Ambassador Joseph Wilson by outing his wife. Libby was leaking, not whistle-blowing. His disclosure to the media had no intrinsic public value whatsoever, and he was rightly prosecuted and convicted.
The common denominator of whistle-blowers is the same: They disclose information of significant public importance that reveals illegal, unconstitutional or dangerous conduct, often at the highest levels of government. The government should not be allowed to hide illegal conduct under official-sounding labels such as "classified," "privileged" or "state secrets," which confer an aura of legitimacy on alleged crimes, and whistle-blowers should not be prosecuted. The billions of dollars wasted on modernizing the NSA's vast eavesdropping system is what needs to be investigated, not Drake.
Speaking truth to power is hard enough. Government employees should not have to choose their conscience over their career, or their very freedom.
Jesselyn Radack is the homeland security and human rights director of the Government Accountability Project, a nonprofit public interest group based in Washington.
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