The Perilous Myth that Only "Lawful" Whistleblowing Counts

by Jesselyn Radack and Thomas Drake

We are living in an age when exposing the truth is a dangerous, even criminal act. The First Amendment, designed to protect dissent against the government, is being systematically eroded as the United States moves toward authoritarianism, punishing those who reveal inconvenient truths — even if that information is factual and exposes fraud, waste, abuse, violations of law, and threats to public health or safety. 

Power structures routinely shield those responsible for serious misconduct while vilifying and prosecuting those who bring abuses to light. Recall President Trump rebuking Director of National Intelligence Tulsi Gabbard for truthfully testifying that Iran was not building a nuclear weapon, or Pete Hegseth, Secretary of Defense, leaking classified information with impunity. 

Meanwhile whistleblowers, the last guardrail of American democracy, face a chilling reality where only official “authorized” disclosures via internal channels, as narrowly defined by authorities, are tolerated. Those who step outside the official channels, as the last line of defense in the public interest, are branded as leakers, criminals, or even traitors, facing the full force of the entire Executive branch, while actual wrongdoers are “protected” through politicized justice and various legal immunities.

The Myth and Its Danger

A pervasive and now prevailing narrative of “lawful whistleblowing” holds that only those who expose wrongdoing through prescribed, internal, government-approved channels deserve recognition. This sounds principled on the surface, but beneath it lies a contradiction that weakens democracy. The call for “lawfulness,” defined and enforced by those in power, acts less to protect whistleblowers and the public than to shield institutions, delegitimize many forms of whistleblowing, and criminalize and punish employees who engage in workplace free speech when official channels fail.

This is especially perfidious in the national security and intelligence community sphere, where disclosures often have constitutional and potentially catastrophic dimensions (e.g. civilian drone strikes or war crimes). In 2009 President Obama signed Executive Order 13526, still in effect, which details the controls and limitations on classified national security information, making it quite clear that in no case information be classified, maintained as classified, or fail to be declassified in order to: “(1) conceal violations of law, inefficiency, or administrative error; (2) prevent embarrassment to a person, organization, or agency; (3) restrain competition; or (4) prevent or delay the release of information that does not require protection in the interest of the national security.” Yet reinterpreting law, or even the plain meaning of an Executive Order, is a form of twisting literal language, by redefining and reframing it, creating a distinctly false reality that justifies punitive measures against whistleblowers holding up the mirror to power.

But when law and even Executive Orders turn into shields for abusive government misconduct and are weaponized to go after whistleblowers and people who offend power, the only path to justice often lies outside their confines. 

History confirms the pattern. Transformative national security disclosures like the Pentagon Papers, the CIA torture program, NSA secret mass domestic surveillance, and war crimes in Iraq and Afghanistan came through unauthorized revelations to the press. People who complained internally were often silenced or punished, while those who went public faced criminal investigation and prosecution. Whistleblowers who’ve too often had to choose their conscience over their career now have to choose their conscience over their freedom, facing years in prison under the draconian Espionage Act.

Real World Dilemmas and Organizational Responses

Following landmark disclosures like Snowden’s, whistleblower support groups proliferated, often featuring language that they do not encourage law-breaking. However, many of them adopted a peculiar disclaimer. One group boasts that it “empowers its clients to report and fix government and private sector lawbreaking — without breaking the law.” Another group emphasizes that it “does not request, encourage or counsel potential whistleblowers to act unlawfully.”

These disclaimers have always seemed to us, at best, silly and superfluous because we’ve never known of a whistleblower protection or free speech organization that recommends their clients break the law, or assists them in doing so. That’s ludicrous. It would be both illegal and unethical, and subject the attorneys helming many of these organizations to bar discipline or even prosecution.

No responsible organization counsels illegal acts. Yet the insinuation that some do is both dishonest and especially harmful to the few courageous groups that represent some of the most vulnerable and consequential whistleblowers in US history. Vilifying whistleblowers who disclose wrongdoing via the press and casting criminal aspersions on operational security protections like anonymity, encryption, and collaborative simultaneous publication is serving the government, not the whistleblower or the public.

While the “lawful whistleblowing” qualification seems harmless, it is actually deeply problematic. It creates the impression, however unintended, that some groups advocate breaking the law, tutor their clients on how to do so, and act as an accessory to their “crime” of committing the truth.

The government’s construction of “lawful whistleblowing” creates an artificial distinction between legitimate reporting and “leaks,” framing the narrative to benefit authority and suppress accountability. Major exposés made possible by Daniel Ellsberg, Chelsea Manning, John Kiriakou, Edward Snowden, Daniel Hale and Reality Winner resulted not from internal organizational transparency, but public acts of conscience made only after other options were exhausted or proven ineffective, dangerous or deadly.

In reality, before blowing the whistle, employees have often already taken risks by gathering evidence of fraud, documenting abuse, or privately sharing malfeasance with journalists. Yet they are met repeatedly with the claim that only governmentally-approved and authorized internal channels (as the government defines them), represent “true” whistleblowing. Everything else is recast as leaking and punished as a crime, even when exposing grave threats or abuses.

The Failures and Traps of Official Channels

Ninety percent of whistleblowers tried to raise concerns internally before going outside the organization. The real-world scenarios we know involve whistleblowers who already took (past tense) substantial risks: printing evidence of fraud, documenting abuse, or sharing it with a reporter or special interest group, and were now seeking advice and support as the system closed in on them. 

Yet, the official party line persists: the only “real” whistleblowing that power recognizes is “lawful whistleblowing” that follows the government’s institutionalist script. Anything else is simply and conveniently relabeled as “snitching,” “leaking,” or even “treason” and prosecuted as a crime, even if it exposes illegal government action or imminent public danger. And under the Espionage Act (now the favorite ‘go to’ blunt instrument of prosecutors), good intentions or the public interest do not matter, and as a strict liability law doesn’t enter into the equation at all until sentencing, aftera whistleblower is already found guilty.

The far more realistic scenario we’ve encountered, as both whistleblowers and people who support them, is the employee who already skirted a law or rule (actual examples include exfiltrating a disk that shows double-billing, videos of war crimes, taking photos of detainee abuse, and copying files that evidence secret domestic spying) and wants advice, support or protection on next steps. 

Yet we are clobbered over and over again by the mantra that the only “real” and acceptable form of whistleblowing is “lawful” and that any other form of whistleblowing is “leaking” and punishable as a crime, even when the whistleblowing exposed serious government wrongdoing, lawbreaking, threats to public health and safety, or a gross abuse of authority, and especially when it occurs in the national security and intelligence spheres.

But official channels, widely touted as ethical gold standards, frequently serve as snares. Employees are told, “If you have nothing to hide, you have nothing to fear. Take it to your supervisor or the Inspector General.” But too often, these mechanisms act as pitfalls for containment and suppression, not reform or accountability. Even well-meaning IG offices may be subverted or weaponized. Recent mass firings of IGs, as well as agency heads calling for crackdowns on “politically motivated leaks,” or calling them acts of treason expose the risk that these systems protect power and not the truth.

Even if we give IG offices the benefit of the doubt that they work independently and in good faith, the current presidential administration summarily fired en masse nearly twenty independent IGs to date without notification to Congress or a substantive rationale. To worsen matters, agency heads have pledged to go after “politically-motivated leaks” (DNI Tulsi Gabbard) and “stop leaks and prosecute these crooked deep state agents” (DHS Secretary Kristi Noem), which sounds more like revenge than accountability. Attorney General Pam Bondi announced that leaks of sensitive information, classified or not, “could properly be characterized as treason,” a crime that carries the death penalty.

When official avenues are blocked or corrupted, the Fourth Estate becomes the last refuge. Yet the official rhetoric intensifies as words like “leaker” are weaponized to delegitimize whistleblowers, smear their allies, and deter others from coming forward. Anti-leak directives, insider threat programs, compelled polygraphs, posters, and strict liability laws combine to create a climate of fear and silence. Whistleblowers aren’t just risking their careers, they face legal jeopardy, professional ruin, and personal trauma. This is a culture where real accountability is discouraged and classified as a threat.

History’s Verdict: Unauthorized but Essential

Most consequential acts of whistleblowing in modern history for ending wars, reforming government, saving lives, revealing extra-Constitutional and extra-judicial executive actions and exposing corruption and wrongdoing all occurred outside “lawful” boundaries. Ellsberg, Silkwood, Wigand, Manning, Snowden, and countless others found official channels blocked, punitive, or hopeless. Their actions, though definitionally “unauthorized,” led to overdue national public reckonings but also to personal sacrifice, exile, and prosecution.

Each of these cases demonstrates that when the law is politicized and weaponized to quell dissent, the only remedy for injustice is stepping outside the abuse committed under the color of law and blowing the whistle as a form of civil disobedience. These whistleblowers were not criminals. They were guardians of democracy against those who would undermine and erode the truth and acted against the abuses and misuses of power, when the law and regulations were subverted and turned against them.

The ethical argument for unauthorized disclosure is deeply grounded in these examples. Whistleblowers tried internal channels and resorted to the press in the public interest as a last resort. Their courage reveals the law’s failure to match justice. When law is misappropriated to silence dissent, disobedience becomes a moral necessity.

Legal Loopholes and Rhetorical Rebranding

Despite a patchwork of protection statutes, whistleblowers face fragmented and weak defenses, especially around national security and classified information. Even reporting requirements often mean confronting those responsible for the wrongdoing, serving less as protection than as peril. Retaliation is rampant and meaningful reform is rare. And retaliation without a remedy to protect the whistleblower is simply justice denied and perversely incentivizes punishment.

Language itself is weaponized with unauthorized acts reframed as “leaks” and “disloyalty.” “Real” whistleblowers, the narrative claims, “color within the lines.” Supporters may hesitate to help, fearing investigation themselves or connotations that they are accessories to a crime. The result is a culture of silence and routine criminalization of dissent.

Who Benefits and What’s Lost

The myth that only “lawful” whistleblowing is legitimate benefits a narrow elite, those threatened by transparency and oversight. Institutional wrongdoers in government and business are too often shielded by systems designed for secrecy. Meanwhile, society loses access to vital information, and truth-tellers are threatened into compliance or destruction.

Internal reporting requirements, mandatory for certain protections, too often function as traps. “Proper channels” may require reporting up the same ladders of authority that committed or concealed the wrongdoing in the first place. Investigations, if launched, tend toward the perfunctory and are narrowly scoped. Too often, they result in the exposure of the whistleblower’s identity, triggering career retribution and personal ruin. 

The consequences are stark. Retaliation against those who report internally remains rampant. The vast majority of whistleblowing cases result in no meaningful institutional change, and significant numbers of whistleblowers are left unprotected, unemployed and unemployable, bankrupt, vilified, blacklisted, and broken, while systemic change remains elusive. Worse still, this narrative delegitimizes anyone courageous enough to refuse silence. It serves as a warning: obey, or be crushed. Self-governance and democracy suffer, while power brokers insulate themselves from scrutiny.

Reclaiming the Ethical Mandate

It is time to repudiate the narrative that “lawful” whistleblowing is the only civic path. A healthy democracy relies on those willing to risk everything for truth and the public good. Whistleblowers are patriots, guardians and the canaries in the coal mine. To criminalize those who act only when every lawful mechanism has failed is more than unjust; it threatens our moral foundations.

Today’s readers, whether future Ellsbergs, Snowdens, or anonymous insiders, must see a society ready to protect, defend, and honor truth-tellers, not criminalize acts of conscience. Whistleblowing is not just exposure; it is a moral act rooted in the right to know and the duty to protect the public. When authorized channels fail or are corrupted, unauthorized disclosure becomes a last resort and sometimes, an act required by justice. The choice is stark: act within the system and risk being silenced, or step outside and risk persecution. Ultimately, duty to public safety and justice transcends the law’s risk. 

Whistleblowers are ethical guardians, bridging the gap between legality and what is right. In addition, the myth of “lawful whistleblowing” is not just simply a policy oversight or a compliance advance directive. It is a strategic shield for the powerful, meant to silence, pacify, and conceal. It is time to reclaim the ethical high ground: truth, justice, and the public good must always stand above bureaucratic self-preservation. 

Conclusion: Defend the Truth-Teller

History will not be kind to those who punish conscience. Our future belongs to those who defend what is right, not just what is “lawful.” Let us not criminalize those who bear witness to wrongdoing by the vagaries of the base human condition when others willingly blind themselves to injustice. Instead, let us build a world where maximal truth saves lives, corrects injustices, reforms nations, and ends wars, while the truth-teller, as an eyewitness to history, is never again left standing alone.

Jesselyn Radack has represented Edward Snowden and a dozen other individuals investigated or charged under the Espionage Act. She heads the Whistleblower & Source Protection Program (WHISPeR) at ExposeFacts. As national security and human rights director of WHISPeR, her work focuses on the issues of secrecy, surveillance, torture and drones. She is featured in the documentary Silenced and is one of 25 people from around the world featured in the book JUSTICE: Faces of the Human Rights Revolution. Previously, she worked as an ethics attorney at the Justice Department for nearly a decade where she blew the whistle on government misconduct in the first terrorism prosecution after 9/11 and author of the book TRAITOR: The Whistleblower and the American Taliban. She is a frequent media commentator on issues of national security, press freedom, and whistleblowing. In 1995, she received her JD from the Yale Law School.

Thomas Drake is a former senior executive at the National Security Agency and whistleblower on the post-9/11 warrantless mass domestic surveillance program; 9/11 intelligence failures; billions in government fraud, waste, and abuse; and endemic corruption. He was also a criminal defendant in the Obama Administration’s signature Espionage Act prosecution against him that collapsed and he went free. Previously he served in the Air Force and Navy and was a principal in a boutique dot com with a practice in management consulting, information technology and software/systems engineering. He is featured in the documentary Silenced and on the “United States of Secrets” episode of PBS’s Frontline. His 2017 public policy PhD dissertation examined the consequences of secrecy and the vital necessity of upholding constitutional rights in a security-driven age. He now speaks and writes on privacy, democracy, governance and defending civil liberties and human rights.