Whistleblowing and The Limits of American Secrecy

The United States has a longer tradition of protecting whistleblowers than most Americans realize. As legal scholar Ruth Ann Strickland notes in the First Amendment Encyclopedia, roughly forty federal laws have been passed to shield employees who expose government and corporate wrongdoing, a legislative history that stretches back to the Revolutionary War itself. Yet despite this deep institutional commitment, the government has repeatedly prosecuted the very people these laws were meant to protect, turning a wartime espionage statute into one of the most powerful tools for silencing dissent in American history.

The Continental Congress

In 1778, the Continental Congress passed what scholars consider the world's first whistleblower protection law, after naval officers Samuel Shaw and Richard Marven exposed their commanding officer, Commodore Esek Hopkins, for torturing British prisoners of war. Congress not only vindicated the officers but also paid for their legal fees. The principle was clear: those who exposed wrongdoing in positions of public trust deserved protection, not punishment. That principle would be tested, and often broken, in the centuries that followed.

Abraham Lincoln codified it further with the False Claims Act of 1863, which allowed private citizens to bring fraud suits on the government's behalf, a mechanism still active today, recovering billions annually in federal fraud cases, Strickland noted. The Whistleblower Protection Act of 1989 formalized anti-retaliation safeguards for federal employees in the aftermath of Watergate and the Pentagon Papers era. But as legal scholar Stephen C. Tily has argued in the Brooklyn Law Review, this framework was always "piecemeal," full of gaps, particularly for intelligence contractors and national security employees, who were explicitly excluded from its protections.

Daniel Ellsberg

Those gaps became visible with shattering clarity in 1971, when Defense Department analyst Daniel Ellsberg leaked 7,000 pages of classified documents to the New York Times and Washington Post, revealing that successive administrations had systematically misled Congress and the American public about the prospects for the Vietnam War. The Nixon administration sought a prior restraint against publication, a direct confrontation with the First Amendment that the Supreme Court rejected. Ellsberg was prosecuted under the Espionage Act of 1917, a law enacted to punish German spies during World War I. As media historian Ralph Engelman and First Amendment attorney Carey Shenkman document in A Century of Repression: The Espionage Act and Freedom of the Press, the Act's vague language, criminalizing any disclosure of information "relating to the national defense," had long since metastasized well beyond its original purpose, becoming a broad prohibition on leaks to the press. Charges against Ellsberg were ultimately dismissed due to government misconduct, but the template had already been set.

Mark Felt

The same era produced one of journalism's most consequential anonymous sources. W. Mark Felt, the FBI's Associate Director, covertly guided Washington Post reporters Bob Woodward and Carl Bernstein through the Watergate investigation, exposing the Nixon White House's systematic abuse of federal agencies and cover-up of the 1972 break-in at Democratic National Committee headquarters. Felt operated entirely outside any legal framework for disclosure, there was no whistleblower statute that would have protected an FBI official leaking to journalists. His identity remained secret for thirty years, until 2005.

John Kiriakou 

The post-9/11 security state sharpened these tensions considerably. In 2007, CIA officer John Kiriakou became the first U.S. government official to publicly confirm that the agency had tortured detainees in an interview with ABC News. He was later prosecuted, not for the torture itself, but for disclosing the identity of a covert officer to a journalist. As Ethan Thompson argues in the Washington University Journal of Law & Policy, the Espionage Act "collapses the distinction between whistleblowing and spying," providing prosecutors with a statute that contains no public-interest defense and permits no distinction between a source speaking to a reporter and an agent selling secrets to a foreign power. 
Initially, Kiriakou was investigated for espionage by the FBI, but found no evidence of the crime. A few years later, after John Brennan (the founder of the torture program) had become the director of the CIA, Brennan wrote a note to the DOJ saying, "Charge him [Kiriakou] again, and make him defend himself." Kiriakou ended up serving 23-months in a federal prison. No CIA official was ever prosecuted for the actual crime at hand: Torture.

Edward Snowden

Edward Snowden's 2013 disclosure of the NSA's mass surveillance programs, PRISM, XKeyscore, bulk phone metadata collection, demonstrated just how far outside the law a national security whistleblower must operate to reach the public. The Whistleblower Protection Act did not cover him as a contractor; internal reporting channels within the intelligence community offered no meaningful protection. He transmitted classified documents to journalists at The Guardian and Washington Post and has lived in exile ever since, charged under the same 1917 statute used against Ellsberg.

What all these cases share is a fundamental flaw our country faces when it comes to whistleblowers: the press receives First Amendment protection for publishing, while the sources who make that journalism possible face criminal prosecution. Newspapers get Pulitzers, while whistleblowers face prison. The Continental Congress understood, in 1778, that exposing wrongdoing in positions of power was an act worth protecting and worth paying for. More than two centuries later, the law has still not caught up with that founding principle.