The Whistleblower Rule Is Wrong
And may very well violate the Constitution.
BRYCE ON POLITICS
- And may very well violate the Constitution.
Click for AUDIO VERSION.
The impeachment inquiry of President Trump has taken center stage in the political campaign of 2020, even to the point of overshadowing press coverage of the Democrat presidential candidates. The inquiry focuses on a statement from an alleged whistleblower who expressed concern regarding a telephone call the President had with the incoming President of the Ukraine. As of this writing, the whistleblower's identity remains anonymous. Frankly, we do not know if this is one person or several as the complaint appears to have been written by a team of lawyers. As a result, the President and his representatives cannot ask questions of his accuser.
I have tried to look at this from both sides, Republican and Democrat, and took the position; what if this was President Obama being impeached and not President Trump? Be it Republican or Democrat, I came to the same conclusions.
The protection of the whistleblower's anonymity could easily be construed as in conflict with Amendment 6 of the Constitution (Rights of Accused in Criminal Prosecutions; the "Confrontation Clause"); to wit:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."
This applies to criminal cases, not civil. I tend to see impeachment as a rather serious situation, after all it is reserved for "high crimes and misdemeanors." It is also something we have considered only a handful of times in our republic's history, yet we have never removed a president from office.
Frankly, we all know it will not happen as the Senate will inevitably come to the president's defense and dismiss the charges coming from the House. The question remains, is impeachment a criminal case or civil? In all examples over the years, it has been treated as a heinous crime, which leads me to believe it is criminal and the President is being prohibited from facing his accuser(s).
Our history is littered with stories of whistleblowers, such as in 2013 Edward Snowden, the NSA contractor who ignited the US surveillance program scandal. There are also the whistleblowers involved with the Benghazi scandal and the IRS intimidation program. Whistleblowers have actually been with us a long time. In my life, it goes back to Daniel Ellsberg who in 1969 released the Pentagon Papers to the New York Times, detailing the military activity in Vietnam under LBJ and Nixon. This, of course, ultimately triggered Watergate.
However, let's go a little further back in time to 1925 when the Army instigated a court-martial against Colonel Billy Mitchell, an episode which has quickly been forgotten in history, but has an important bearing on the whistleblowers of today.
Although Mitchell is primarily credited for building Air Power in this country, his military career goes as far back as the Spanish-American War where he served as the youngest Army officer (at age 18). Mitchell's notoriety though began during "The Great War" (WWI) where, as Major, he became the first American officer to come under fire in the trenches of France. During the war, he earned several decorations and citations. More importantly, it was in France where he developed his fascination and passion for the airplane as a military weapon.
Mitchell understood the potential of the airplane. His superiors did not, and saw it as nothing more than a trivial instrument for observing enemy forces. They laughed at him when he claimed airplanes could sink a ship by dropping bombs on it. At the time, battleships were considered invincible. He finally got an opportunity to prove his claim and sank the German battleship "Ostfriesland," which was to be scuttled following the war. Nonetheless, the military was unimpressed. Following the war, in peacetime, there was an emphasis on shrinking the military. Even though Mitchell begged for money for research and development, he was ignored. He even urged the military to form a separate branch dedicated to an air service, but was denied. Consequently, American Air Power diminished almost to obscurity. The English, French, Italians, even the Germans had far superior airships than the Americans, and Mitchell made sure the newspapers knew about it.
Knowing Mitchell's image was growing larger in the press, the military sent him on remote assignments in order to eliminate his exposure in the press. In 1924 he was sent to study military defenses in the Pacific. During this time, he visited Japan and witnessed firsthand how the Japanese were embracing Air Power and realized America was far behind their counterparts. Following his tour, he produced an extensive 323 page report on his assessment of American defenses in the Pacific. It was in this prophetic report that he predicted how Japan would attack Pearl Harbor with remarkable accuracy. Even though the military dismissed his report as ridiculous, Mitchell's predictions would come true 17 years later. Nonetheless, he was buried again by the military.
One year later, in 1925, the Navy dirigible "Shenandoah" was destroyed in a storm in Ohio, with a loss of 13 lives. Mitchell was outraged as he knew the ship was archaic and denounced the Navy for its "almost treasonable" attitude towards aviation:
"As a patriotic American citizen, I can stand by no longer and see these disgusting performances...at the expense of the lives of our people and the delusion of the American public. We may all make mistakes but the criminal mistakes made by armies and navies, whenever they have been allowed to handle aeronautics, show their incompetence...This, then, is what I have to say on the subject, and I hope that every American will hear."(1)
Although Mitchell became a hero to the American people for his bold statements, his superiors felt otherwise and court-martialed him for insubordination. Actually, the court-martial was what Mitchell was hoping for as he figured it was the best way to bring attention to the problem and create change. The case garnered a lot of attention in the press, and many notable proponents of Air Power testified on his behalf. In the end though, Mitchell was suspended from the Army for five years. Instead, Mitchell resigned in 1926 and spent the remainder of his life speaking on behalf of Air Power. He would die in 1936 never knowing how accurate his predictions would become in World War II. In 1942, President Roosevelt, recognized Mitchell's contributions to Air Power by restoring his status and elevating him to the rank of Major General. In 1946, he was awarded the Congressional Gold Medal, "in recognition of his outstanding pioneer service and foresight in the field of American military aviation"... 10 years after his death. Today, this medal bears his likeness on it.
There are some similarities, as well as differences, between Billy Mitchell and today's impeachment whistleblower(s). Mitchell was a visionary who used his court-martial to draw public attention to the problems of Air Power. Today's whistleblower is not a visionary. He/She/They just stumbled on a problem and reported it. Whereas Mitchell stood and took his medicine as a military officer, thereby garnering the support of the American people, the impeachment whistleblower(s) hid behind anonymity, not wanting to suffer through a career-ending court case as Mitchell did.
The big problem with becoming a whistleblower is that it doesn't pay well. You might earn the admiration of the American people, but you must also face the wrath of the establishment. It takes someone with a lot of character to stand up and report a problem, whether it be in the corporate world or government. The prime difference between Billy Mitchell and today's whistleblower(s) is simple: Mitchell stood like a courageous man and took his medicine; the whistleblower(s) has not. Understand this though, the American Air Power we know today can be directly attributed to the efforts of Billy Mitchell. Had he not spoken up when he did, our air defenses would have been primitive by the start of World War II. Mitchell knew what he was talking about and would not be intimidated by the powers in authority. This leads me to believe today's impeachment whistleblower(s) can be intimidated, and perhaps has been threatened by others.
In the end, the president is entitled to face his accuser, whatever his/her/their name is.
Keep the Faith!
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Copyright © 2019 by Tim Bryce. All rights reserved.