Whistleblowers have a long history – and should be protected – SC Times

Barbara Banaian, Times Writers Group Published 5:00 p.m. CT Nov. 29, 2019

Barbara Banaian(Photo: Submitted photo)

The term "whistleblower" once evoked images of 19th-century British bobbiesblowing their whistles to alert the public or colleagues to danger from suspects running away.This was an important part of law enforcement.

Whistleblowers have a long history of reporting wrongdoing, including Benjamin Franklin, who, in 1773, disclosed confidential letters showing that the royally-appointed governor of Massachusetts was misleading Parliament.

At the center of the impeachment hearings in the House of Representatives is a whistleblowerwhose report is pivotal to the investigation.We want an investigation that is fair and transparent, and we want the law honored.

The law to be honored is both a federal statuteand the Sixth Amendment.And there appears to be a conflict.The statute is the Intelligence Community Whistleblower Protection Act of 1998 (ICWPA).

TheICWPA says that when filing a report with the Inspector General about an urgent concern, the whistleblower is protected against retaliation by the executive branch upon reporting wrongdoing.They cannot be fired, passed over for promotion, denied educational benefitsor otherwise prevented from career advancement.An act of retaliation leads to a separate whistleblower complaint and investigation and constitutes a separate felony.

But protection from retaliation does not lead to a requirement of anonymity.

The Sixth Amendment is about criminal prosecutions and says an accused person has the rightto be confronted with the witnesses against him and be able to compel testimony that demonstrates his innocence.

An impeachment hearing is a hearing, not a trial.Both Democrats and Republicans have been in attendanceand have been able to ask questions, but only of the witnesses that the chair of the committee, Rep. Adam Schiff, has permitted.And he does not want the whistleblower to testify, in order to maintain anonymity and protect them from retaliation.

To permit the hearing to proceed, Schiff has had others testify to confirm the statements in the whistleblower complaint, making that persons testimony unnecessary in his view.Because a hearing is not a trial, the Sixth Amendment does not apply here.

If articles of impeachment are voted out of the House of Representatives, the Senate sits as a trial court, and it may be here that the Sixth Amendment rights of the accused President Trump would be upheld.

Whistleblowing has a long history dating back to 7th-century England (in which a king offered to split the earnings of anyone who violated the Sabbath law).In 1778, the Continental Congress commended marines who turned in fellow marines who had mistreated British prisoners.

What is important about getting protection underICWPA is that the whistleblower follows the law.Mark Felt, an associate director of the FBIwho became the famous "Deep Throat" from the Watergate scandal, gave his information to a newspaper rather than report it up the chain of command, no doubt because the law at the time did not have whistleblower protections.He stayed anonymous until he was 91 years of age, almost 30 years later.

Had the whistleblower here gone to a newspaper like Edward Snowden, theywould not be entitled to protection.This whistleblower tried to follow the law.

But still there is a fine line to walk:The whistleblower has rights against retaliation, and President Trump has not been bashful about using his Twitter account to criticize those who speak against him.Just look at what happened to AmbassadorMarie Yovanovitch.

Would this be sufficient to constitute retaliation, however? It seems the Sixth Amendment right still exists (if only when this reaches the Senate), but that a separate article could be filed by the House if the whistleblowers rights against retaliation are violated.

Rooting out corruptionand other high crimes is a good thing especially in government.We value this.

The rights of the accuser will have to balance against the rights of the accused.Whistleblowers have an important function, and shouldn't be discouraged .

This is the opinion of Barbara Banaian, a professional pianist who lives in the St. Cloud area. Her column is published the first Sunday of the month.

Read or Share this story: https://www.sctimes.com/story/opinion/2019/11/29/whistleblowers-have-long-history-and-should-protected/4314452002/

Read this article:
Whistleblowers have a long history - and should be protected - SC Times