Whistleblower vs. Leaker?

I received an email from a Monkey Cage reader that raises some interesting questions in response to this article in the Washington Post. The story concerns the court case of former NSA executive Thomas A. Drake.

Here’s the content of the email:

I’d be interested in anyone’s thoughts on this story, the former NSA manager being tried under the Espionage Act for leaking information on NSA mismanagement to the Baltimore Sun. There was a good New Yorker article on it recently too. I’m usually all for prosecuting people who leak sensitive information, but in this case the information involves contractor issues and wasted resources, so would seem to be whistleblowing. As a former consultant with the IC, I know there are a lot of issues with contractors and poorly-implemented programs, so this information needs to get out somehow. At the same time, incidents like the State Department cable leaks are incredibly disruptive, so the distinction between good leak and bad leak might be hard to make.

Any thoughts from readers? For anyone with a legal background in this sort of thing, how do we know where whistleblowing ends and leaking starts? For political scientists who have studied this sort of thing, is there an accepted way to categorize incidents of whistleblowing as opposed to leaking?

One Response to Whistleblower vs. Leaker?

  1. Abby Wood June 9, 2011 at 1:34 pm #

    My research is on state-level whistleblower laws, and I am not an expert on federal-level whistleblower protection, nor have I followed this case. The key questions of any whistleblower case are (1) is the whistleblower a covered employee, and (2) is this a covered disclosure? As I understand it, the main law protecting federal whistleblowers is in 5 USC 1201 et seq. The provisions that protect disclosures, in sec. 1213, explicitly do not protect whistleblowing that could threaten national security. Additionally, the nature of the disclosure — to the media — is almost certainly not protected.

    On the question of whether he is a covered employee, it turns out that employees in positions that are exempted from the competitive service because of confidential, policy-determining, policymaking, or policy-advocating character (sec. 2302) are not protected, regardless of the nature of the disclosure. I don’t know if Mr. Drake’s position was of that nature.

    On the nature of the disclosure, there are two ways it might not be protected: a specific executive order, or a general requirement not to go to the media. On the former, it could lose protection because it is “specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs” (sec. 1213, and I have no idea whether it was).

    Even if he is a protected employee and there was no specific executive order to keep the information secret, disclosing to the media is almost certainly not protected. In my research, I’ve found that the majority of states do not protect disclosures to the media, instead requiring either internal disclosures (to one’s supervisor), or disclosures to a specified person in the government, like the state auditor, state courts, or the state legislature. Federal whistleblowers report to the Office of Special Counsel, the courts, congress, or the Merit Systems Protection Board, not the Baltimore Sun.