Secrets and Leaks by Sagar Rahul

Author:Sagar, Rahul
Language: eng
Format: epub
Publisher: Princeton University Press
Published: 2013-03-14T16:00:00+00:00

The Problem of Retaliation

We have now examined the conditions under which an official can be justified in making an unauthorized disclosure. But this exercise has left us facing a predicament: if we take the view that an official is justified in making such a disclosure only when she is willing to disclose her identity, then we run the risk that the ensuing threat of retaliation will justify her “swallowing the whistle,” thereby making it less likely that citizens will become aware of abuses of authority. But if we take the view that an official is justified in making such a disclosure anonymously so that she may avoid retaliation, then we run the risk that she will make disclosures in order to covertly further sectional interests or to impose her own values on the public. It is clear that we cannot evade this predicament by requiring officials to direct unauthorized disclosures toward Congress alone, because lawmakers could fail to act in the absence of public pressure. Nor can we hope to evade this predicament by allowing officials to approach reporters and publishers only when gross wrongdoing has occurred. This restrictive permission misses the point because whistleblowing in the national security domain will typically expose suspected rather than gross wrongdoing. How, then, to overcome this predicament?

The most obvious answer is to find a way to shield the whistleblower against retaliation. This would make it safe for her to disclose her identity, which in turn would make it safe for the public to trust her disclosures. But where are we to find such a shield? One alternative is to rely on the force of public opinion. This is another way of saying that an official ought to blow the whistle only when she is certain that by doing so she is likely to garner widespread public support, as this would make it difficult for her colleagues or managers to retaliate against her. But this solution is unsatisfactory for a number of reasons. An official will not always be able to confidently predict what the public’s response to her disclosure will be. Consider the sorts of questions that she will have to grapple with. Will her disclosures raise a hue and cry in Congress? Will the news media launch follow-up investigations? Will the president’s media managers succeed in deflecting public attention? These are questions to which even the most seasoned political observer will not have clear answers. Now, to be sure, an official will have reason to expect public support when her disclosure exposes gross wrongdoing. But a whistleblower who exposes wrongdoing of this sort is under no obligation to reveal her identity in the first place (remember, we are interested in knowing the identity, and thereby the motive, of a whistleblower only when it is unclear whether the activity or policy she has exposed actually constitutes an abuse of authority).

An alternative way to protect a whistleblower against retaliation is to rely on the law. But this is easier said than done. Although lawmakers

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