SYDNEY: 18 June 2013 - Bradley Manning’s disclosure of classified army cables to the website WikiLeaks and Edward’s Snowden’s release of NSA intelligence on the PRISM programme to the Guardian newspaper has put whistleblowing in the spotlight. The United States criminal code has historically had more sophisticated and comprehensive legislation protecting whistleblowers than that of Europe. Yet why is it that these high profile American whistleblowers have sought vehicles outside of America to publish their information?

The US has a long established practice of safeguarding whistleblowers and its legal culture protects employees from unfair employment termination by inserting whistleblower protection provisions to almost every major piece of legislation where federal dollars are spent. The False Claims Act of 1863 dates back to the civil war and was a reaction by the federal government to fraud. Senator Jacob M. Howard outlined his motivation for sponsoring the Bill in the Senate.

'The Bill offers, in short, a reward to the informer who comes into court and betrays his coconspirator, if he be such; but it is not confined to that class… In short, sir, I have based the fourth, fifth, sixth, and seventh sections upon the old-fashion idea of hold out a temptation, and “setting a rogue to catch a rogue,” which is the safest and most expeditious way I have ever discovered of bringing rogues to justice.'

Whistleblowing in the American sense was conceived as a necessary evil in the financial self-interest of both the state and the “co-consipirator”.  The Qui tam principle still exists within federal law. Rewards of between 15 and 25 percent of an overall settlement continue to be made to those who assist the government in the recovery of civil penalties and forfeitures.

Kyle Lagow, an appraisal manager for Countrywide Financial from 2004 to 2008, claimed the subprime mortgage lender inflated the value of homes to support bigger loans and filed his whistle-blower suit alleging appraisal fraud in 2009. He was awarded $14.5 million in 2012 for his part in the mortgage industry’s $25 billion settlement with federal and state regulators. Bank of America, the parent bank of Countrywide Financial and the second-largest in the U.S. by assets, subsequently made a $1 billion settlement in Federal Housing Administration.  “The scheme both directly and indirectly cost the United States government billions of dollars and played an important role in the wave of foreclosures that fuelled the financial meltdown of 2008,” Steve Berman, Lagow’s attorney, said in a statement.

It was in this vein that the Office of the Whistleblower was established by the Securities and Exchange Commission under the Dodd Frank Act of 2010, expanding powers first introduced in Sarbane-Oxley in 2002. Whistleblowers aware of possible securities law violations are regarded by the SEC as one of the  'the most powerful weapons in the law enforcement arsenal.'  The Commission is authorised by Congress to provide monetary awards ranging between 10 and 30 percent of the money collected in cases where high-quality original whistleblower information leads to a Commission enforcement action of over $1 million in sanctions.

The first payout from this new anti-securities fraud scheme was awarded in August 2012. In June 2013, three whistleblowers were awarded 15 percent of the money that the SEC will ultimately collects from its enforcement action against hedge fund Locust Offshore Management LLC and its CEO Andrey C. Hicks, who defrauded investors of $2.7 million. The Office of the Whistleblower is regarded by the American government as a key reform in response to the Global Economic Crisis and vital to protecting the integrity of the market, notwithstanding ongoing contestation over the rationale why individual whistleblowers go public. 

Europe, on the other hand, is characterised by a patchwork of legislation which have a sectoral focus and cluster around legislation on competition, companies, anti-corruption, media and environmental protection. The sectoral approach is often accused of complicating, confusing and fragmenting the whistleblower process where any one employer has to potentially deal with disclosures under multiple statues, ranging from those dealing with accounting legislation to those addressing the employment concerns.  Under the sectoral approach, protection may only be afforded to specific persons or for the reporting of specific offences.

Europe has proven to be more reluctant in developing all-embracing dedicated legislation. The Parliamentary Assembly of the Council of Europe has suggested that this, may in part, be due to 'deeply engrained cultural attitudes, which date back to social and political circumstances, such as dictatorship and/or foreign domination, under which distrust towards ‘informers’ of the despised authorities was only normal.' The history of Irish scandals, for example, has shown that it most often 'outsiders' who ultimately blow the whistle. Reporting of unethical behaviour was traditionally disincentivised through a legacy of negative association with informing. Those who sought to speak out were labelled as traitorous informers which created a fear breaking the conspiracy of silence when obvious wrongs were committed.

Just Norway and the UK have dedicated whistleblower protection legislation which extends to both the public and private sectors. Negotiations on the United Nations Convention Against Corruption faced linguistic difficulties when it came to the articles on whistleblowing. In Germany, for example, no such word exists to describe whistleblowing other than negatively loaded words like informant. Instead, articles 13, 32 and 33 of the UNCAC refer to “Participation of society”, “Protection of witnesses, experts and victims” and “Protection of reporting persons”.

It is curious then that despite a long tradition of whistleblowing in American culture that both Manning and Snowden felt it necessary to seek refuge with entities outside their jurisdiction. It is this context that context truly matters. Some point to the ethos of the American media which have 'increasingly taken it upon themselves in the past decade to make national security choices on behalf of the government.' 

There is an incongruity too that Manning and Snowden, as employees of the American government, swore oaths of fidelity 'to support and defend the Constitution of the United States against all enemies, foreign and domestic.'

It chides with some that Manning wears his army uniform decorated with his National Defense Service Medal, Army Service Ribbon, Global War on Terrorism Service Medal, Iraq Campaign Medal and an Overseas Service Ribbon each day at his trial in Maryland. Indicted on 22 charges, including prosecution under the Espionage Act of 1917 and the capital offense of aiding the enemy, Manning faces life imprisonment if convicted.

After Snowden claims he broke both legs in the Army Reserve Special Forces training programme, he went on to work for the National Security Agency and later with the Central Intelligence Agency. He faces possible extraction from Hong Kong, a city Snowden deliberately sought refuge in because of what he claimed, somewhat incongruously,  was its 'spirited commitment to free speech and the right of political dissent.'

Senator Jacob M Howard’s definition and characterisation of the whistleblower was exceptionally narrow. They were deemed mere 'informers' whose sole purpose was to bring 'rogues to justice' in the 'safest and most expeditious' manner, suggesting that even in the United States it remains deeply problematic. Whether whistleblowing is an act of citizenship in the public interest or national sabotage still depends on the context and capacity to frame the discourse on what consitutes legitimate powers of governmental intervention.