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Government Whistleblowing: Bob Thomas Examines the Cases of Ellsberg, Felt, and Snowden with BU Law Students

October 6, 2021

In a Boston University Law School seminar on Whistleblower Law and Practice taught by WLC co-founder Bob Thomas, students started the semester examining whistleblowing in the national security context. Whistleblowers Daniel Ellsberg, Mark Felt, and Edward Snowden served as the initial case studies. Their stories show the conflicting interests in government whistleblowing.

Daniel Ellsberg released the Pentagon Papers to the New York Times and Washington Post in 1971 at the height of the Vietnam War. The Pentagon Papers revealed that the Johnson Administration had systematically lied to the public about U.S. prospects in the Vietnam War, leading to an escalation of the conflict with tragic consequences.

Mark Felt, the former Associate Director of the FBI, recently revealed before his death that he was the secret “Deep Throat” source for the Washington Post’s critical coverage of the Nixon Administration’s obstruction of justice during the Watergate Scandal in the mid 1970s.

Edward Snowden, who worked for a contractor for the National Security Administration (“NSA”) leaked highly classified information to reporters in 2013.  The information concerned the government’s mass surveillance of the public pursuant to its newly acquired powers granted under the Patriot Act. Snowden’s revelations as to the extent of these warrantless intrusions led to a significant scaling back of the practice and a modification of the law used to justify it.

The Conflicting Interests in Government Whistleblowing

These three cases illustrate the conflicting interests in government whistleblowing. There are tensions between two important principles both embedded in the law.  First is the public’s “right to know” what its government is up to.  This right is enshrined in the press freedom of the First Amendment.  Second, there is the need for secrecy of the government in the national security context.  Notably, this interest is protected by the Espionage Act of 1917, the law used to prosecute both Ellsberg and Snowden.

The tension between these competing values demonstrates what is so inherently challenging for whistleblowers generally, but especially in the government employee context.  Both interests are important.  Thus, the individual decision-making process of whistleblowers involves discernment, courage, and an acceptance of the reality that any decision made will come with potentially severe consequences – as was true for all three men.

The Public’s Right to Know

What motivated these individuals to blow the whistle was a belief in the public’s right to know about government misconduct.

Daniel Ellsberg

Ellsberg worked on the Pentagon Papers as a defense contractor. The Papers were a classified study by the government on the policy failures of the Vietnam War. They showed that the government knew the war could most likely not be won. They showed that the government had falsely told the public that the U.S. was winning the war, to justify further troop buildups, enlarging the scope (and the tragedy) of the conflict. When he leaked the Pentagon Papers, Ellsberg was certain that he would go to prison for life. Yet, he believed the public deserved to know about the gap between the government’s statements about the war and the war’s reality. The Nixon Administration was not ending the war as promised, and more lives were being lost in a conflict that the government knew was unwinnable.

Mark Felt

Felt, the second in command at the FBI, revealed the Nixon Administration’s obstruction of justice in its coverup of the Watergate Scandal. The information he leaked to reporters Bob Woodward and Carl Bernstein would eventually bring down President Nixon in a wave of scandal. Nixon kept trying to kill the investigation and Felt’s leaks kept Nixon’s obstruction on the front pages of the newspaper. This eventually led to Nixon’s resignation (facing impeachment and conviction in Congress). In revealing this information, Felt faced a similar moral dilemma to Ellsberg’s:  Felt was loyal and supported the FBI his whole life, but believed it was his duty as an American citizen to expose the truth that the President of the United States was actively committing crimes.

Edward Snowden

Edward Snowden, an intelligence contractor working for the NSA, was so disturbed by what he saw of government intrusion on the privacy of innocent Americans that he chose to leak highly classified information to reporters.  Snowden did so knowing that the consequences to him would be severe and life-altering. Under the Patriot Act, the NSA conducted warrantless general surveillance of millions of Americans- their phone calls, emails, contacts, and locations. Snowden’s decision to blow the whistle revealed for the first time the extent of the government’s mass surveillance, which it initially denied. The government has also indicted Snowden under the Espionage Act. He is living in exile in Russia. While Snowden has been living in exile, Congress put an end to the worst of the abuses that he disclosed.

The Government’s Interest

Despite these whistleblowers’ conviction that the public had a right to know the information, it is true that leaking information about government wrongdoing may have national security implications.  It is also true that, not surprisingly, the government has been quick to try to defend those interests in court. The government has defended these interests through criminal prosecution and also through civil actions designed to prevent the release of information by third parties like newspapers. In all three of these cases, the acting President railed against the damages caused by leaks.  In the Ellsberg case, the government even sought an injunction seeking the disfavored relief of a “prior restraint” on speech, prohibiting the papers from further publication.

The case, New York Times v. U.S., raised important issues about the constitutional right of free speech and of free press as well as the right of the government to function without interference. The Supreme Court held, 6-3, that the First Amendment protected the right of the New York Times to print the Pentagon Papers. The government could not halt publication of material because it failed to show that the publication would cause a “grave and irreparable danger.” This decision did not give the press unlimited freedom to publish classified documents, nor did it void the Espionage Act.

As these cases demonstrate, there are conflicting interests in government whistleblowing. Embedded in our laws is a tension between the public’s right to know and the government’s interest in secrecy.  The stories of Ellsberg, Felt, and Snowden demonstrate the obstacle to whistleblowing on government wrongdoing when the government can invoke national security concerns.  The inherent tension presents the government whistleblower with a genuine moral dilemma:  to expose wrongdoing and bring the weight of the U.S. government’s power down on oneself, or to keep quiet and look the other way as government misconduct disrupts or destroys lives.