I have been asked multiple times in the past week if senior State Department official Gregory Hicks, who testified in Congress yesterday about the Benghazi attack that took the lives of four Americans including Ambassador Christopher Stevens is a whistleblower.
I am no fan Representative Darrell Issa (R-CA), who chaired yesterday's congressional hearing, or of Senator Lindsay Graham (R-SC), who dramatically claimed the hearing's revelations would be "every bit as damaging as Watergate." Congress has muddled the question of whether Hicks is a whistleblower by politicizing Hicks' testimony to the Nth degree, but remove it from the politicization, and the question of whether or not he is a whistleblower is not complicated.
According to the facts reported, Hicks meets the legal definition of a whistleblower.
Contrary to the government's common claims about who is and is not a whistleblower, the government does not get to make that determination. One becomes a whistleblower by operation of law by making a disclosure that reasonably evidences gross waste, fraud, abuse of power, mismanagement, illegality or a danger to health and public safety.
Hicks' testimony disclosed what reasonably evidences abuse of power (misleading the public about the attacks), mismanagement (in responding to the attacks), and danger to health in public safety (his assertions that the U.S. could have sent rescue teams earlier). He also suffered two forms of classic whistleblower retaliation: a demotion and negative performance review.
Whistleblowers should never be used as political footballs, but Congress' over-the-top, gotcha showboating does not mean Hicks does not meet the legal definition of a whistleblower. Two important points the public and Congress need to remember:
(1) Hicks' whistleblower status is not dependent upon whether or not his disclosures are factually correct. A whistleblower does not have to be right about their reasonable belief in government misconduct in order to be a whistleblower. Whether Hicks is correct is a factual question that Congress and the press will and should aggressively investigate.
(2) Why Hicks made his disclosure is not the deciding factor in whether or not he is a whistleblower, rather the deciding factor is the substance of his disclosures. Whistleblower laws contemplate that whistleblowers may have multiple and complex motives for disclosing wrongdoing. (The IRS Reward program and Qui Tam statute specifically use financial incentives to encourage whistleblowers to make disclosures). Focusing on whistleblowers' motives is a tactic retaliating management officials too often use to discredit whistleblowers, and it lends itself to concentrating on the messenger, rather than the message, a focus that hurts whistleblowers and shields wrongdoers.
For those who don't believe the State Department would retaliate against a whistleblower, check the case of my client Peter Van Buren, who the State Department retaliated against after he published a book critical of reconstruction fraud in Iraq.
Hicks' disclosures make him a whistleblower. It's worth remembering that the question, "Is Hicks a whistleblower?" is separate from the question of whether politicians should be shamelessly exploiting the Benghazi attack and Hicks' disclosures to score political points.