Methodology
The methodology of this article will consist of arguments of a normative nature. More precisely, it will consist of a normative theory that our founding fathers used to create this country, constitutional republican theory. An example that describes this approach comes from James Madison, who said:
It may be a reflection on human nature, that such devices should be necessary to control the abuse of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary, if angels were to govern men, neither external nor internal controls on government would be necessary, in framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. (Madison, 1788)
James Madison believed that any good government would have procedures in place so governmental abuses could be stopped or controlled. This argument was the basis for how academic sources would be used and judged within this paper. Academic resources did not have to agree with this premise. The arguments that disagreed with this premise will be addressed and argued against based upon the normative arguments that support a constitutional republic. Academic resources have been blended with other sources. Other sources that will be used include: polling data, internet resources that include government websites and biographies in order to create a research paper that uses factual information in order to argue for the use of ethical codes and whistleblowing.
Code of Ethics
I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God. (“Oath”)
The preceding was the oath of office that all federal employees must take as they enter into their public office. The history of the oath can be traced back to the Constitution. Article IV of the Constitution requires all government officials, from all three branches of government, to take and adhere to the oath of office. The wording for the oath dates back to 1884, when Congress adopted this oath because they wanted to establish “clear, publicly sworn accountability” (“Oath”). The reason why the oath is so important is because this is the establishment of an ethical form of conduct that all government employees, including the President of the United States, must adhere to. The oath singlehandedly made every government employee accountable to the Constitution and to the people of the United States. This oath was the foundation that led to legislation like the Ethics in Government Act of 1978 and the signing, by President George H.W. Bush, of Executive Order 12674 that laid out fourteen general principles of ethical conduct. The oath did not only lay the foundation for the expectancy of ethical conduct by all federal employee, but as we will learn later, lays the foundation for whistleblowing by federal employees.
Other than the Constitution imposing ethical codes of conduct on federal employees, another reason why codes of ethics should be established is because there is a pressure on the public sector to delegate “responsibilities, including financial responsibilities within the public sector organizations; media exercising influence over white collar workers; growing public willingness to complain when the quality of public services is low” (Musaraj & Gerxhi, 2010, p. 12). Codes of ethics are needed to create an environment that promotes accountability because of pressures by the media and the public that demands the government to operate in an open and honest manner. The Constitution, along with a general moral code, provides a blueprint for any government employee that wants to be considered honest, loyal, and ethical in the eyes of the media and the public at large.
There is conflicting research that suggests that code of ethics do not necessarily prevent government malfeasances. Meine & Dunn point out that, “simply having a code of conduct does not guarantee that employees will comply with it or even that they will understand the issues driving the code” (2013, p. 152). That statement is correct. Codes of ethical conduct will not stop employees in the federal government from engaging in unethical behavior. Someone could look to the 111th Congress to see that is the case. The 111th Congress “ended with two long-serving members under the cloud of ethics investigations, and these were only two of the 111 ethics inquiries conducted during that session of Congress” (Meine & Dunn, 2013, p. 156). Obviously, ethical codes do not stop suspicious behavior, especially in Congress, however, the principles of having ethical codes is important because it allows the public and the media to determine if any member of the government has conducted themselves in an unethical fashion. Codes of the ethics create the blueprint necessary to find and prosecute unethical behavior. Without codes of ethics it would be more difficult to snuff out government wrongdoing. Even though unethical behavior continues in government today does not mean that codes of ethics are meaningless. Ethical codes help determine the culprits that are working in a questionable, unethical way.
Ethical Laws, Rules, and Regulations. The first major ethical codes of conduct established for federal employees, other than the oath, were established in 1958. In 1958, the U.S. House of Representatives, along with the Senate, adopted the Code of Ethics for Government Service. This was the first major operational document because it gave government organizations the tools to “enforce proper behavior ranging from reprimands to dismissal and even criminal prosecution” (Meine & Dunn, 2013, p. 156).
Obviously these tools that were created by the Code of Ethics for Government Service did not stop government corruption and ethical crises. The country was consumed by the Watergate scandal that lasted from 1972 until President Richard Nixon’s resignation on August 9, 1974. The effects of Watergate led to an all-time high of government distrust and skepticism. To help quell this growing distaste for government, Congress passed the Ethics in Government Act of 1978. The Ethics in Government Act of 1978 established the Office of Government Ethics that would reside within the Office of Personnel Management. This office was tasked with implementing government-wide ethical direction through policies and programs. It also created the position of Special Prosecutor or Independent Counsel that would investigate high ranking government officials when accusations of criminal behavior come about (Carroll & Roberts, 1988). This would be the same office that investigated President Bill Clinton during the Monica Lewinsky scandal in the 1990’s. The Ethics in Government Act of 1978 created offices and positions that are still around today. These tools have helped uncover unethical and criminal behavior that takes place within the government. These tools are not perfect; some might say that they are used as political maneuvers against political rivals; at least, those were the accusations that were lobbed against Republicans by President Bill Clinton and his fellow Democrats during the Monica Lewinsky scandal. Even though there could be improper use of these tools by people with political agendas, these tools are still invaluable because it gave the government more control in discovering criminal and unethical behavior even though the chances of drastically reducing unethical behaviors was slim to none, as what will be witnessed in the 1980’s.
Ethical scandals and corruption in government did not stop (or even subside) after the implementation of the Ethics in Government Act of 1978. During the late 1980’s scandals like Iran-Contra, the Walker spy ring, and the defense contracting scandals dominated the headlines (Carroll & Roberts, 1988). These headlines caused another round of angst and deteriorating trust with government. On April 12, 1989, President George H.W. Bush signed Executive Order 12674, which would be later amended by Executive Order 12731. Executive Order (E.O.) 12674 put into place fourteen general ethical principles that would help “to ensure that every citizen can have complete confidence in the integrity of the Federal Government” (Executive Order No. 12674, 1989). A few of the principles that were adopted for all federal employees in E.O. 12674 were that “employees shall disclose waste, fraud and corruption to appropriate authorities; employees should not hold financial interests that conflict with the conscientious performance of duty” (1989). This executive order tasked the Office of Government Ethics in implementing these general ethical principles across every government agency within the federal government. Again, the purpose of these fourteen general principles was to instill trust within the government and with the public.
The Case for a Code of Ethics. One could make the assumption that these ethical codes, laws, rules, and regulations have not stopped government corruption. Since the corruption and questionable behavior has not subsided over the years, the trust that the American people have with government has fallen dramatically. Pew Research reports that trust in government has fallen from 73 percent in 1958 to 19 percent in 2013 (2013). A valid argument could be made that code of ethics are a waste of time or that ethical codes are “simply a form of window dressing intended to serve as a visible symbol of legitimacy for a profession and its professional organizations” (Meine & Dunn, 2013, p. 152). These are arguments have merit, however, researchers and people in general, are missing the point of ethical codes. Ethical codes are needed because there should be processes in place that allow government transparency. An open government that tries to control unethical behavior of its political leaders and workers should be lauded. The notion that since all unethical behavior or corruption has not been eradicated in the federal government means that ethical codes should be abandoned because they are not working or they are “window dressing” is ludicrous. There needs to be standards, there needs to be some sort of control over its inhabitants, as James Madison said. This idea that ethical codes, laws, regulations, and rules should be thrown out because they are not working would just cause society to delve into chaos. That argument makes as much sense as someone saying that speed limits should be abolished because many people do not abide by speed limits. The truth is that some people do not abide by the speed limits, however, when they are caught, they are punished. The same scenario happens for a government worker or agency that gets caught doing something unethical and/or illegal. President Nixon is a prime example of that. The argument that ethical codes do not work is an argument that is lacking a lot of thoughtfulness or analysis. Ethical codes help create an environment of responsibility and accountability. Sure, some people may not abide by this code, but having a process in place where violators will be exposed and be punished helps create a better environment even though it does not stop the unethical behavior.
If ethical codes are needed within the federal government in order to create an environment that promotes accountability and openness, then the next step would be how can one person, standing by the fourteen general ethics that were established by President George H.W. Bush, accomplish this feat? One of the answers, a controversial answer to say the least, would be through the act of whistleblowing.
Whistleblowing
Significant Whistleblowers. The determination has been made that a whistleblower is someone who discloses potentially damaging information about their employer to an authority figure or the media. To help explain what a whistleblower does, it is important that a few examples of whistleblowing are explained.
One of the most high-profile whistleblowing cases occurred in 1971. Daniel Ellsberg, a former United States military analyst, employed by the RAND Corporation, secretly photocopied and leaked the Pentagon Papers to members of Congress and then leaked the information to the New York Times (Kitrosser, 2011). The Pentagon Papers was a classified study commissioned by the Department of Defense that outlined the history of the Vietnam War. The Pentagon Papers were a scathing rebuke of America’s involvement in Vietnam. Some of the revelations that were made public was that former President Lyndon Johnson, “misled the public about the nature of American actions in Vietnam in 1964; planned the escalation of the war long before it occurred; ordered the bombing of North Vietnam while publicly condemning his rival for the Presidency, Senator Barry Goldwater, for proposing to do just that” (Millar, 1971). The government’s response to Ellsberg and the New York Times was fierce. Ellsberg was indicted, tried for his leaking of information, even though the case against Ellsberg was eventually dropped. The case was dropped because of government misconduct. The government had “suppressed evidence, burglarized the office of Ellsberg’s psychiatrist, illegally wiretapped Ellsberg’s conversations, and held secret discussions with the judge trying Ellsberg’s case about the judge’s possible appointment as FBI Director” (Kitrosser, 2011). Ellsberg and the New York Times were harassed because they leaked a report that was devastating and embarrassing to the government. The leaking of this information is significant because of the response by the government and the impacts that this leaking had on President Nixon. President Nixon, tired of the leaks within the government, created his group of “plumbers,” a secretive investigative unit that would try to stop any future leaks from taking place. These “plumbers” along with Nixon’s actions of revenge, would eventually lead to his downfall during the Watergate scandal.
Another significant whistleblower (or traitor, as some have called him), Edward Snowden is a former National Security Agency (NSA) contractor who disclosed information about the NSA’s clandestine PRISM data-collection program through reporter Glenn Greenwald who works for the newspaper, The Guardian. “Snowden revealed that the National Security Administration has been collecting and storing the telephone and e-mail records of millions of Americans (not to mention countless innocent citizens of other countries)” (Lears, 2013). The effects of Snowden’s whistleblowing are still up in the air because the United States government has not cancelled PRISM and Mr. Snowden is still on the run from U.S. authorities. The Guardian reported Snowden’s disclosures on June 5, 2013; Edward Snowden went public on June 9, 2013; June 18, 2013 had FBI Deputy Director Sean Joyce testifying before the House Intelligence Committee that the PRISM program helped stop terror attacks; and Snowden, who left the United States before the disclosures on May 20, 2013, has been charged with espionage and theft of government property. Snowden is currently in Russia where his request for temporary asylum has been approved. (“Edward Snowden,” 2013).
The Case for Whistleblowing. Why would people like Daniel Ellsberg and Edward Snowden, along with countless others, risk their professional and personal lives to blow the whistle on questionable governmental behavior? The answer lies in the fact that the federal government has adopted a code of ethics that emboldens federal employees to uphold and protect the Constitution.
In an interview with The Guardian, Edward Snowden stated, “I'm willing to sacrifice all of that because I can't in good conscience allow the US government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they're secretly building” (Greenwald, MacAskill, & Poitras, 2013).
Mr. Snowden was concerned with “basic liberties” being infringed upon by the United States government. One could make the assumption that Edward Snowden was concerned that the government was violating the Fourth Amendment of the Constitution (Lears, 2013). The Fourth Amendment protects American citizens against unreasonable searches. Lears makes the argument that Snowden was trying to protect our Fourth Amendment rights. With evaluating Snowden’s remarks, a connection can be made with Snowden’s disclosures and his concern about Fourth Amendment protections. Snowden, as a government contractor, did not have to take the oath that all other federal employees must take and he did not have to abide by the ethical codes that had been established by President George H.W. Bush. However, the National Association of Government Contractors (NAGC) has a code of ethics. Their codes insist that a federal contractor complies “with all laws and contracts; conducts themselves in a manner that brings credit upon the community” (“Code of ethics”). What is interesting is that there is a code that states that a contractor must uphold “security of protected information” (“Code of ethics”). The NAGC code is quite convoluted, however, Snowden was most likely operating on the assumption that he must comply with all laws. No laws are more supreme than the United States Constitution. Even secrecy oaths that, “prohibit oath-takers from giving any information identified as safeguarded, secret, or classified to any person not specifically authorized to receive it” (deHaven-Smith, 2011, p. 215). Snowden felt that there were obvious violations within the Fourth Amendment. The argument could also be made that Snowden was operating on the basic theory of what James Madison laid out in terms of wanting an open and honest government. Madison wanted abuses to be controlled and if the Fourth Amendment was being violated then Snowden had a duty to inform the American public about these abuses. Snowden was also a former C.I.A. employee so he had to abide by ethical principles when he was with the C.I.A. Snowden had the understanding and the passion to protect the Constitution because he was in an environment where people are charged with the duty of being ethical and protecting the Constitution.
Edward Snowden is one real-life example of being a whistleblower. The federal government does encourage whistleblowing. The proposition that code of ethics emboldens a person to blow the whistle is also bolstered by the fact that Congress has passed laws that try to protect whistleblowers from harassment and wrongful prosecutions. Congress passed the Federal Employee Protection of Disclosure Act and the Whistleblower Protection Enhancement Act. These laws are designed to protect disclosures by a federal employee of “any violation of law, waste, abuse, or gross mismanagement” (“Senate passes,” 2008). These laws also “expanded the scale of whistleblower protections to national-security related agencies,” (“Senate passes,” 2013) and includes federal contractors, along with federal employees.
Between the many regulations, rules, and laws that enforce government employees to conduct themselves in an ethical way and the laws that Congress has passed in regards to protecting whistleblowers from harassment and wrongful prosecution, one could make the argument that the federal government encourages whistleblowing. James Madison and the other founders believed that in order for a government to survive, the government must be controlled from abusing the people. They wanted an honest and open government. 1884 saw the Congressional adoption of an oath that all federal employees had to take. The oath makes the federal employee state that they will “support and defend the Constitution of the United States against all enemies, foreign and domestic.” The government also enacted several bills and executive orders that embraced the notion that all federal employees must be ethical. These ethical codes of conducts continued to enforce the idea that employees needed to place loyalty to the Constitution. The federal government constantly tells its employees to protect and defend the Constitution. All of these ideas have permeated through the minds of its employees. Once you couple that with whistleblowing protection laws, then it is only reasonable to see people like Daniel Ellsberg and Edward Snowden blow the whistle on things they perceive to constitute government abuses of power. The whole blueprint of this country, in terms of a constitutional republic, not only encourages people stepping up to fight government abuse, but it demands that citizens do this because a government cannot survive if it loses trust with its people. No one should be surprised when a government employee or contractor blows the whistle because standing up for an open and honest government that protects the Constitution is a basic tenant of the founding of this country. Not only should people be less shocked when whistleblowers become public, but they should be applauded for risking their security and their lives to help bring about perceived abuses that the government may have carried out. Besides, as Daniel Ellsberg points out:
Since wrongdoing virtually always requires both secrecy and lies, and further secrets and lies to protect the secrets and lies, the wrongful operation—especially in a regime that approaches democracy—is commonly highly vulnerable to a breach of secrecy by any one of the many who share the secret. (2010, p. 775).
Arguments against Whistleblowing. There are several claims stating that federal employees should not become whistleblowers. The arguments against whistleblowing stem from the proposition that whistleblowing is an “unauthorized disclosure of wrongdoing” (Evans, 2008, p. 268) and “that information must be kept secret to protect national security, and claims that the public would understand and bless the government’s actions if only the public could see the information that they are not permitted to see” (Kitrosser, 2011, p. 91). One could argue that whistleblowing should not take place because whistleblowing is an unauthorized act of disclosure, however, that argument becomes null because, as has been already discussed in this paper, Our founders like James Madison wanted an open and honest government and the way to go about creating that atmosphere was by having federal employees pledge their allegiance to protecting the Constitution. Ethical codes reinforced that idea of upholding the Constitution and laws have been enacted that protected whistleblowers. There are positions within the security apparatus of the federal government that does hold its employees to secrecy; however, the Constitution trumps secrecy in those departments. If citizens of the United States are having their Constitutional rights violated, like the Fourth Amendment when it comes to unreasonable search and seizures, then an employee has the obligation to expose that. The Constitution cannot be undermined solely on the proposition of keeping state secrets classified.
The next argument that suggests information needs to be kept secret to protect the national security of the United States is also a weak one. This argument suggests that more Americans could die if sensitive information is leaked out to the American public (Kitrosser, 2011; Wise, 2011). That argument could turn out to be true. Now that the world knows about the NSA’s PRISM program, it could turn out that potential terrorists will use other methods of communications other than using the internet and phone calls; however, the Constitution is the supreme law of the land. The Constitution does not forbid whistleblowing because someone may be killed. That may sound callous, but Constitutional protections should never be undermined in the name of safety and security. Basic constitutional republican theory, ethical codes, and laws that embolden whistleblowing constantly remind federal employees and contractors, along with the media and the citizens that government must operate in accordance with the Constitution. Even President Barack Obama, whose administration is trying to prosecute Edward Snowden, has previously stated that “that whistleblowing by government employees was an act ‘of courage and patriotism’ that ‘should be encouraged rather than stifled’’ (Wise, 2010). Though there is an environment of governmental hypocrisy when it comes to whistleblowing, we must all remember that our founders and government encourages whistleblowing. Whistleblowing is encouraged because government must operate in an honest and open manner.
The final argument which suggests the “public would understand and bless the government’s actions if only the public could see the information that they are not permitted to see,” is another weak argument against whistleblowing. That argument is hypocritical to say the least. Again, our federal employees are encouraged to work openly, honestly, and ethically. The government should never rationalize keeping secrets that harm our country because the people will support something that they do not even know about. That argument goes against every principle of ethical conduct and goes against the Constitutional principles that have been discussed. These arguments are excuses that come from people that enjoy the power they have in government. The leaking of information threatens their status and to come out and make pompous arguments like this one, only makes the case stronger to why American needs strong ethical codes in government, along with encouraging more whistleblowing.
Conclusion
The American people already has trust issues with the United States Government and some could point to whistleblowers as being a catalyst that exposes abuse and corruption so government trust plummets. However, if not for these whistleblowers we may have never have known that President Johnson misled the American people when it came to the Vietnam War, we may have never have known about the specifics of what the NSA does to collect information, and one president, President Nixon, may have never been exposed for his crimes against the American people. Many lives have been ruined because many people have decided to stand up against the government and expose the abuse, lies, and questionable practices that go in the government. These whistleblowers provide a valuable service. They are the real patriots in this country that would have our founders like James Madison applauding their dedication, service, openness, and honesty. Whistleblowers risk their lives and reputations to defend the Constitution; there is nothing more admirable than that gesture of selflessness.
Carroll, J. D., & Roberts, R. N. (1988). If men were angels: Assessing the ethics in government act of 1978. Policy Studies Journal, 17(2), 435-447.
Code of Ethics. (n.d.). Code of Ethics. Retrieved November 26, 2013, from http://web.governmentcontractors.org/content/about/Code_of_Ethics.aspx
deHaven-Smith, L. (2011). Myth and reality of whistleblower protections. Public Integrity, 13(3), 207-220.
Edward Snowden fast facts. (2013, November 18). CNN. Retrieved November 24, 2013, from
http://www.cnn.com/2013/09/11/us/edward-snowden-fast-facts/
Ellsburg, D. (2010). Secrecy and national security whistleblowing. Social Research, 77(3), 773-804.
Evans, A. (2008). Dealing with dissent: Whistleblowing, egalitarianism, and the republic of the firm. Innovation: The European Journal of Social Science Research, 21(3), 267-279.
Exec. Order No. 12674, 3 C.F.R. (1989).
Greenwald, G., MacAskill, E., & Poitras, L. (2013, June 9). Edward Snowden: the whistleblower behind the NSA surveillance revelations. The Guardian. Retrieved November 22, 2013, from http://www.theguardian.com/world/2013/jun/09/edward-snowden-nsa-whistleblower-surveillance
Kitrosser, H. (2011). What if Daniel Ellsberg hadn't bothered?. Indiana Law Review, 45(1), 60-66.
Meine, M., & Dunn, T. (2013). The search for ethical competency. Public Integrity, 15(2), 149-166.
Madison, J. (1788, February 6). The Federalist #51. Retrieved November 24, 2013, from http://www.constitution.org/fed/federa51.htm
Millar, T. (1971, June 23). Mr. Johnson's slippery tunnel. The Sydney Morning Herald. Retrieved November 26, 2013, from http://news.google.com/newspapers?id=QvljAAAAIBAJ&sjid=I-UDAAAAIBAJ&pg=2414,7857807&dq=the+pentagon+papers&hl=en
Musaraj, A., & Gerxhi, J. (2010). Communication and ethical behavior in the public service: from moral choice toward a legal code. Academicus, (1), 11-21.
Oath. (n.d.). U.S. Office of Personnel Management. Retrieved November 20, 2013, from http://archive.opm.gov/constitution_initiative/oath.asp
Trust in government nears record low, but most federal agencies are viewed favorably. (2013, October 18). Pew Research. Retrieved November 25, 2013, from http://www.people-press.org/2013/10/18/trust-in-government-nears-record-low-but-most-federal-agencies-are-viewed-favorably/
Senate passes whistleblower law. (2008). Professional Safety, 53(3).
Wise, D. (2011). Leaks and the law. Smithsonian Magazine, 42(4), 90-101.
