2018 Whistleblower Summit Highlights

2018 Whistleblower Summit

This year’s Whistleblower Summit for Civil and Human Rights (Summit), an annual event for whistleblowers and their advocates, kicked off on July 30, National Whistleblower Appreciation Day. The Summit was organized by ACORN 8 and other members of the Make It Safe Coalition. Ralph Nader held the first whistleblower conference in Washington DC nearly five decades ago, and we were proud to participate in this year’s gathering to honor our modern-day heroes. The Summit was filled with sage advice from whistleblowers, advocates and government officials, and the following highlights cannot capture the breadth of material covered. Further information can be found at the summit’s website.

Government Officials Supporting Truth-Tellers

The Senate Whistleblower Protection Caucus sponsored this year’s National Whistleblower Appreciation Day resolution, S. Res. 558. Senator Charles Grassley (R-IA), Chairman of the Senate Judiciary Committee and

co-chair of the Whistleblower Caucus, provided opening remarks to commemorate the day, saying, “Congress has sought to protect whistleblowers [because] it’s not just the right thing to do, it’s the sensible thing to do … Whistleblowers … know where to find the waste, fraud, abuse and in the corruption.”

During the summit luncheon, Senator Grassley cited the effectiveness of the False Claims Act, which has been used to recover more than $56 billion in taxpayer dollars since it was enacted in 1987. He remarked that whistleblowers are the most effective resources for draining the swamp, and he challenged President Trump to hold a Rose Garden ceremony to honor these courageous truth-tellers.

In recognition of this year’s 40th anniversary of the Inspector General Act, Michael Horowitz, Inspector General (IG) of the Justice Department, explained that IGs rely heavily on whistleblowers, and it is often the only way they learn what is going in an organization. He told whistleblowers that he wants to “make sure you have a safe place to speak truth to power”, which is why his office has supported measures such as the recently passed Whistleblower Protection Coordination Act, which will make permanent and strengthen whistleblower coordinators within federal agencies. Relatedly, in National Security Agency (NSA) OIG’s semi-annual report to Congress, NSA IG Robert Storch highlighted the significant role of whistleblowers and steps his office has taken to enhance its whistleblower program, including coordination with the whistleblower advocacy community.

Tristan Leavitt, Principle Deputy Special Counsel for the Office of Special Counsel (OSC) – the federal agency tasked with protecting federal whistleblowers from retaliation – acknowledged that this year also marks the 40th anniversary of the Civil Service Reform Act, which was passed in the aftermath of the Watergate scandal and established rules and procedures for federal employees. He cautioned that at the end of the day, even when whistleblowers have rights, remedies can take time, and a lot of harm can come to a whistleblower before that individual is vindicated. He referenced pioneer Pentagon whistleblower Ernie Fitzgerald, who exposed massive taxpayer waste and coined the term “commit the truth”, because whistleblowers are often treated as if they have committed a crime for exposing a crime. Leavitt expressed, “I’m grateful for the courageous men and women who put their careers on the line to shine light” on government wrongdoing.

Health and Safety Whistleblowing

Department of Veterans Affairs (VA) whistleblowers spoke directly about their experiences committing the truth in order to defend veterans. Brandon Coleman, who exposed breakdowns with VA suicide prevention efforts, spoke about his new role helping to run a mentoring program within the VA’s Office of Accountability and Whistleblower Protection. The number one complaint he hears is that employees have difficulty finding work after they blow the whistle. He tries to help them by discussing his own whistleblowing, the OSC process, how to speak with the media, and the importance of self-care.

Kuauhtemoc Rodriguez, former chief of specialty care clinics in Phoenix and an Iraq veteran, reported VA delays in providing mental health care and a list of 116 veterans who died before receiving care. As Rodriguez explained, “Veterans receiving care is an issue that transcends politics – they deserve the health care that they earned.” Rodriguez described his retaliation to coming forward, including government surveillance, death threats, and denial of paid leave for a cardiac injury.

Daniel Martin, Chief Engineer for the VA Northern Indiana Health Care System, explained that for more than 500 days he has been stripped of his job duties and relocated to a room contaminated with silica and asbestos after he internally reported gross misuse of taxpayer dollars. On June 27, OSHA issued a Notice of Unsafe or Unhealthful Working Conditions at the facility due to the presence of silica, lead, and asbestos. The VA has until August 18 to correct the violation.  Despite the threats to his health, Martin explained that he remains at the VA because he wants to continue to support veterans.

James DeNofrio worked as an administrative officer at the Altoona, Pennsylvania VA Medical Center, and he put his career on the line when he reported concerns about the quality of care that patients were receiving under the hands of an aging physician who was making life-threatening mistakes. In the wake of his whistleblowing, he reported that he was denied promotions and overtime, threatened with lower performance ratings, and his medical records were shared with unauthorized recipients. Echoing Senator Grassley’s remarks, DeNofrio, and the other courageous civil servants should be honored with a rose garden – not punished for exposing harm to our veterans.

Day two of the Summit kicked off with a panel regarding USDA whistleblowers in the #MeToo movement. Members and supporters of the USDA Coalition of Minority Employees described the experiences of women in the U.S. Forest Service and other USDA divisions that have been sexually assaulted within the workplace. They identified the need for exposure, accountability and coalition building to end sexual harassment. Rep. Jackie Speier’s (D-CA) office discussed the role of congressional hearings and agency audits in shedding light on these abuses. Notably, Rep. Speier has advocated for congressional staff who expose sexual harassment to have whistleblower protections to challenge retaliation.

During a panel entitled Blowing the Whistle on the Blue Wall of Silence, Matthew Fogg spoke about his experience exposing systemic racism within the U.S. Marshal Service. According to Fogg, the “blue wall of silence” means “you keep your mouth shut” when you witness wrongdoing within a law enforcement workplace. When he considered coming forward, his peers urged him, “Whatever you do, don’t take on the system.” The experience brought him to tears, and “changed my whole life, change my career.” But as he explained it, “the only way you deal with a bad cop is through a good cop.” Fogg embodies the role of the “good cop”, and he is starting a national whistleblower network for law enforcement officers.

Tips for Working with the Office of Special Counsel and Congress

The Government Accountability Project (GAP) organized two instructive panels to help whistleblowers collaborate with OSC (Office of Special Counsel) and Congress to advance their whistleblowing while protecting them in the process. One panel featured leadership at OSC and the Merit Systems Protection Board (MSPB), which hears and decides whistleblower reprisal claims. As Tom Devine, GAP Legal Director, explained, “This is the panel of individuals who deliver on your rights.”

Unfortunately, the MSPB has been unable to deliver — notwithstanding MSPB Vice-Chairman Mark Robbins’ effort to keep the Board functional — because it currently lacks a quorum and has a backlog of approximately 1,300 cases. In July the Senate Homeland Security and Government Affairs Committee held a nomination hearing for three MSPB nominees, and those individuals are still being vetted.

Special Counsel Henry Kerner explained that due to limited resources and statutory limitations, OSC is only able to obtain corrective action for a small percentage of whistleblowers. Largely as a result of the outreach and improvements made under former Special Counsel Carolyn Lerner, the number of OSC cases has almost doubled in the last five to six years. However, OSC’s resources have not kept pace, making it difficult process cases in a timely manner.

One of Kerner’s biggest priorities is to increase the OSC’s efficiency and effectiveness, and they have already made progress. For FY2017 OSC’s average time to take a complaint and assign an examiner was 18 days, and in 2018 OSC has reduced it to five days, Kerner shared. There’s more work to be done, however, and the OSC is beginning to implement recommendations from a June 2018 Government Accountability Office report on ways in which to improve processing of whistleblower disclosures and reprisal complaints. “One thing we can do is tell you as early as possible if there are other options for you,” Kerner told the whistleblowers in attendance.

Panelists described OSC’s structure and previewed some changes. The Disclosure Unit is where OSC receives disclosures about government waste, fraud, abuse, and public health and safety dangers. OSC’s website provides a description of what a whistleblower can expect after he or she makes a disclosure.  The Complaint Examining Unit investigates prohibited personnel practices, which span a variety of whistleblower reprisal actions.

In response to its large caseload, OSC is planning to change the structure for investigating whistleblower retaliation. Its goal is to provide a system where the same one to two attorneys can handle a retaliation case from the beginning to end. Leavitt explained, “The importance and challenge is that the [whistleblower’s] evidence is sufficient to prove retaliation.” OSC panelists recommended that whistleblowers prepare for working with OSC by providing a timeline of the events.

Since 2012 OSC has also offered alternative dispute resolution (ADR), a form of mediation that “often yields resolutions that are more creative and tailored to the needs of the parties as well as far less costly in time and money than traditional legal routes”, according to the OSC website. Jane Juliano, who leads the ADR Unit, explained that ADR can be a good fit for whistleblowers who want to sit down with the agency officials and have a conversation, and want to maintain confidentiality. It’s not a good fit for whistleblowers who want an investigation into the alleged reprisal, which they forgo through ADR.

The panel on working with Congress offered a wealth of advice from congressional staff and advocates on whistleblower collaboration with the legislative branch.  Sarah Garcia, Senior Counsel for the Senate Homeland Security and Government Affairs Committee minority, shared that her Committee begins by looking at the facts involved in the whistleblower’s case and determining what, if anything, Congress can do in response. Congress’ primary ability “is the power of the pen,” Garcia explained.

DeLisa Lay, Senior Investigative Counsel for the Senate Judiciary Committee majority, shared that the Committee’s primary role is to engage in oversight to ensure that agencies are fulfilling their missions. For instance, they are currently looking into the Security and Exchange Commission’s proposed new rules for its whistleblower program.

Krista Boyd, General Counsel for the House Oversight and Government Reform Committee minority, explained “it helps if we have more than one whistleblower to identify it is a systemic problem,” which can lead to Congressional investigations and oversight letters on agency misconduct.

Elizabeth Hempowicz, Policy Director for the Project On Government Oversight, discussed efforts by advocates and the House Whistleblower Protection Caucus to increase congressional staff capacity to work with whistleblowers.

Tom Devine summarized the panel’s advice for how whistleblowers can work most effectively with Congress into 10 points:

  1. Do your homework before you contact Congress. Be strategic in who you meet with, research the office’s jurisdiction, track record, and their ability to deliver results.
  2. Establish the ground rules for your relationship with the offices, such as confidentiality.
  3. Prepare a one to two-page fact sheet that extracts your case’s key facts and conclusions.
  4. In addition to the fact sheet, prepare a timeline of the key events in your whistleblowing.
  5. Distill your introductory presentation down to a two to three-minute summary, and practice it!
  6. Do speak in consequences. Discuss what impact your disclosures have on the public.
  7. Do not make it a briefing on your own injustices. If Congress decides the issue is significant and has public policy impacts, then the office will also want to know how you are being mistreated.
  8. Demystify the technical jargon for the offices.
  9. Be prepared to back-up everything you say with documents, but before providing additional evidence, let the staff determine what documentation they need.
  10. Be a navigator. Let the office know that you know what documents to ask for, which witnesses to speak with, what the agency excuses will be and how to rebuff them.

Telling Your Whistleblowing Story

Michael McCray, Summit organizer and Managing Editor of American Banner Books, organized a panel of experts to discuss tips and strategies for harnessing the power of their stories to advance their whistleblowing. Rob Kall of OpEdNews offered his outlet as a forum for whistleblowers to share their stories. Kathy Cole, Producer of the documentary film Whistleblowers, explained how her relentless advocacy to expose safety violations in New York schools resonated with parents and taxpayers.

Marcel Reid, Summit organizer and co-founder of ACORN 8, spoke about her experience after exposing embezzlement at ACORN, the non-defunct community organizing group, “The number one thing I noticed was, as a whistleblower you couldn’t tell your own story. Everyone had their own interpretation. That’s when I realized that we needed to find a way to tell our stories.” She went to the Pacifica Radio Board, which unanimously agreed to commit to covering whistleblower stories. As Pacifica’s whistleblower liaison, Marcel works with whistleblowers to help them hone their stories to be shared more widely and suggests that whistleblowers practice their story with friends and people they trust. “Your number one indicator of how well people receive your whistleblowing is your ability to tell a tightly controlled story that you are in charge of,” explained Reid.

You can hear more about Reid’s story by watching this presentation she made at a TEDx conference:

Whistleblowers are integral to Public Citizen’s mission to protect the public interest since they serve as our eyes and ears to government and corporate wrongdoing. Whether the issue is protecting workers and communities from chemicals, making sure our food, medicine, and cars are safe, exposing corporate fraud, or ensuring our taxpayer dollars are spent responsibly, we have always relied on these courageous employees as the lifeline to warn us about abuses of power that betray the public trust. Thank you to all the brave workers and individuals who have the courage to speak truth to power.

Posted in Press release

Open letter to President Trump and Congress

The Government Accountability Project is currently gathering signatures for an open letter to President Trump and Congress. The letter, which will be gathering support throughout the summer, asks lawmakers to update the Whistleblower Protection Enhancement Act of 2012 to close loopholes in the act’s protections. Here is a summary of the recommendations we give in the letter:

  1. Give whistleblowers the right to a jury trial in federal court (right now, they have to rely on the inefficient Merit Systems Protection Board).
  2. Let whistleblowers challenge retaliatory investigations employers often conduct to find minor violations in their past. These investigations are usually attempts by employers to find justifications—however meager—for firing employees who have reported misconduct.
  3. Protect whistleblowers against criminal and civil liability. If a retaliatory investigation turns into criminal prosecution, the employee involved may have been better off being fired. Such a risk creates a major disincentive for reporting violations and abuses.
  4. Give whistleblowers temporary relief (i.e., financial stability) when they have a credible case of retaliation.
  5. Allow whistleblowers to challenge MSPB decisions in appeals court.
  6. Make sure every inspector general’s office has a whistleblower ombudsman or representative to help employees through the process.
  7. Prevent employers from increasing the required security clearance for employees’ jobs. Doing so can effectively push employees out of their jobs without firing them.
  8. Discipline supervisors who retaliate against whistleblowers.
  9. Protect disclosures even before application to government positions.
  10. Permit the Office of Special Counsel to issue a stay, ensuring that whistleblowers can continue working while their case is pending.

Whistleblower protection is one of the most consistently bipartisan issues to come before Congress—the WPEA passed both houses unanimously in 2012. Because the issue already enjoys such broad support in Congress, a concerted effort by a coalition of organizations has a strong chance of bringing enough attention to this issue for Congress to act. And even though the WPEA was a great victory, action is still necessary. The MSPB is far too backed up to handle all of its cases, and simply protecting whistleblowers from retaliatory firing is not enough; in fact, it opens an even more harmful option for employers. Without firing employees who report misconduct, they can open investigations into these employees, which can potentially turn into criminal prosecution. Some employees would likely rather be fired than deal with the stress and expense of litigation.

This is an issue that concerns all of us. Whistleblowers, acting in the public interest, risk everything when they expose fraud, gross waste, and other unethical practices both in government and in private corporations. However, loopholes and weaknesses in the current whistleblower laws give employers latitude to retaliate against whistleblowers with impunity. Unwilling to risk their jobs, reputations, careers, or safety, many would-be whistleblowers stay silent.

Whether they discover violations of environmental regulations, embezzlement of public funds, or any other abuse of power, employees must feel free to exercise their rights without fear of retaliation. Protection for whistleblowers means more transparent, accountable, and responsible government and corporations for all of us. Email legislationintern@whistleblower.org or call 202-457-0034 ext. 139 to read a copy of the letter or to sign on. We encourage all members of the Make It Safe Coalition and others to join GAP in this effort.

Posted in BLOG

Make It Safe Coalition Praises Congressional Approval of the All Circuit Review Act

WASHINGTON – Today, the Make It Safe Coalition (MISC) praised Congress for passing the All Circuit Review Act, H.R. 2229. On June 22, the House unanimously approved, with retroactive application, this bipartisan legislation introduced by U.S. Rep. Elijah Cummings (D-MD), the Ranking Member of the House Committee on Oversight and Government Reform. The Senate Homeland Security and Governmental Affairs Committee leadership, Senators Ron Johnson (R.-WI) and Claire McCaskill (D.-MO), as well as the Senate and House Whistleblower Protection Caucuses, also played an active role in the bill’s passage.

BACKGROUND

The All Circuit Review Act makes permanent a Whistleblower Protection Enhancement Act (WPEA) pilot program that gives federal whistleblowers normal appeals rights to judicial circuit courts when appealing administrative rulings by the U.S. Merit Systems Protection Board. Prior to the pilot program, the Federal Circuit Court of Appeals had a monopoly on judicial review. Congress enacted the WPEA and two earlier generations of the same rights in response to repeated hostile Federal Circuit decisions that gutted the statute. Besides rewriting the law, the court was a graveyard for whistleblower appeals, ruling against them in 240 out of 243 decisions prior to the WPEA’s passage. The Federal Circuit has maintained a negative track record of handling whistleblower claims.

As a result, Congress approved a two-year experiment to test normal appellate court access, consistent with the Administrative Procedure Act, as part of the WPEA. Since its passage in 2012, Congress has extended the pilot program twice. A Senate Homeland Security and Governmental Affairs Committee report on the bill, summarized results from the pilot program. The Federal Circuit ruled against whistleblowers in 31 out of 32 decisions on the merits, while whistleblowers won two of six appeals to other circuit courts.

MISC urged Congress to make the pilot program permanent and enact the All Circuit Review Act in a letter to Homeland Security and Governmental Affairs Committee Chairman Ron Johnson and Ranking Member Claire McCaskill. However, Congress did not pass the bill before the pilot officially ended on November 26, 2017.  Last weeks’ House vote makes the court access rights retroactive to appeals during the lapse.

Individual MISC members commented below.

Tom Devine, Legal Director of the Government Accountability Project, commended the approval, stating, “With a unanimous bipartisan mandate, Congress has just made permanent the Whistleblower Protection Enhancement Act’s structural cornerstone – normal appellate court access to challenge adverse administrative rulings.” Devine also cautioned, “This reform will be like a house without a foundation, however, until Congress extends judicial access with jury trials to federal whistleblowers for a day in court. Currently nearly all corporate whistleblowers have that right, but federal workers are prisoners of a dysfunctional administrative law system with no quorum to make rulings and a steadily increasing backlog dating to 2014 of over 1000 cases. Justice paralyzed is justice denied. WPA rights will not be credible, until Congress gives federal whistleblowers the same court access as private sector employees. It is unrealistic to expect first class public service from workers with second class rights when they defend the public.”

Shanna Devine, Worker Health and Safety Advocate for Public Citizen, commented, “Passage of the All Circuit Review Act, led by Congressman Elijah Cummings, provides federal whistleblowers with a greater opportunity for justice by permanently ending the Federal Circuit’s monopoly on appeals. Congress must go further, though, and provide them with access to a jury to challenge retaliation, as reflected in modern private sector whistleblower laws.”

Liz Hempowicz, Director of Public Policy at the Project On Government Oversight, added, “This is a significant step to improving the chances of whistleblowers to prevail on their claims in court, and is cause for celebration. However, it is imperative that Congress continue to act to give whistleblowers access to jury trials and to strengthen whistleblower protections for those in the Intelligence Community and the military.

In a June 19 statement, MISC also praised Congress for passing the Whistleblower Protection Coordination Act, which makes permanent a pilot program requiring all Offices of Inspectors General to have whistleblower protection coordinators to provide guidance and counseling on rights and responsibilities of the Whistleblower Protection Act (WPA). These developments reflect leadership of the congressional Whistleblower Protection Caucuses, and Congress’ longstanding bipartisan mandate to protect the brave employees who disclose government wrongdoing. President Donald Trump should sign these measures without delay.

Posted in Press release

Make It Safe Coalition Praises Congressional Approval of the Whistleblower Coordination Act

WASHINGTON – The leadership of the whistleblower rights coalition, the Make It Safe Coalition (MISC), today praised Congress for unanimous passage of the Whistleblower Protection Coordination Act, S. 1869. On June 14, Congress sent the legislation to President Trump for his signature and it is awaiting his approval.

The bill makes permanent a pilot program requiring ombudsman-style whistleblower protection coordinators in all Offices of Inspectors General to provide guidance and counseling on rights and responsibilities in the Whistleblower Protection Act. In the Whistleblower Protection Enhancement Act of 2012, Congress created the pilot program. MISC has been advocating its adoption over the last year.

This legislation is significant for a solid infrastructure supporting federal whistleblower rights. Whistleblower Coordinators’ duties are to educate employees, contractors, and grantees about prohibitions on retaliation for protected disclosures, as well as their rights, responsibilities and remedies under the WPA. The Coordinators also are responsible to assist Inspectors General (IG) in facilitating communications between whistleblowers and other stakeholders, such as the Office of Special Counsel and Congress.

The bill reflects bi-partisan support, with leadership from Senators Charles Grassley, (R.-Iowa), Ron Johnson (R.-WI) and Claire McCaskill (D.-MO), and Representatives Rod Blum (R.-Iowa) and Elijah Cummings (D.-MD) Representative Blum and Senator Grassley are majority chairs for the House and Senate whistleblower caucuses, respectively. MISC Steering Committee representatives offered the following expressions of appreciation:

Tom Devine, Government Accountability Project legal director, commented, “This legislation makes permanent the infrastructure for Whistleblower Protection Act rights to take root. It also is Iowa’s good government gift to taxpayers. Senator Grassley and Representative Blum lead the Senate and House Whistleblower Caucuses. This law reflects long-term, bi-partisan commitments to whistleblowers.”

Shanna Devine, worker health and safety advocate for Public Citizen, commented “Congress has risen above partisanship to protect our most vulnerable government employees – whistleblowers. Its unanimous passage of this good government bill will strengthen and make permanent whistleblower coordinators throughout the government, helping to guide our modern day heroes as they risk retaliation to defend democracy.”

Rebecca Jones, Beth Daley Policy Associate for the Project On Government Oversight (POGO), commented, “POGO applauds the unanimous passage of this truly bi-partisan effort. This is a laudable re-commitment to whistleblowers, our nation’s first line of defense against waste, fraud, and abuse.  Providing a dedicated Coordinator within IG offices is crucial for whistleblowers to understand their rights as they come forward with vital disclosures.”

 

Contact: Andrew Harman, Communications Director, GAP @ AndrewH@whistleblower.org

The Make It Safe Coalition

The Make It Safe Coalition is a nonpartisan, trans-partisan network of 74 good government, taxpayer, scientific, labor, civil liberties, and law enforcement organizations dedicated to strengthening protections for whistleblowers in private and public sector who protect the public by exposing waste, fraud and abuse in government.

Posted in Press release

Robert F. Kennedy: Whistleblower Champion

by Martin Edwin Andersen | June 4, 2018

“Every time we turn our heads the other way when we see the law flouted, when we tolerate what we know to be wrong, when we close our eyes and ears to the corrupt because we are too busy or too frightened, when we fail to speak up and speak out, we strike a blow against freedom and decency and justice.”? Robert F. Kennedy

Fifty years after his death, the life of Robert F. Kennedy remains a beacon of hope and inspiration for yet another generation of Americans, more necessary today perhaps than at any time since June 5, 1968. Much of what is written in 2018 focuses on the epic legislative, bureaucratic and street battles of the 1960s, on Kennedy’s “transformation” as a political figure central to the wrenching debates, and the need for healing—both home and abroad. The fight for civil rights, the role of military might in foreign policy and national security, and the crying need for “radical inclusion,” the latter promoted by the most prescient in U.S. leadership now, are but the most important issues that form the cornerstone of Bobby’s legacy.

At the same time, it is important to remember the earlier life and times of RFK, for his basic values and moral compass set the stage for all that came after. During the heyday of anti-communist witch-hunter Joe McCarthy, it was young Bobby who went to war with the Wisconsin Republican’s vicious, calculating and self-promoting aide Roy Cohen. Cohen later became a lawyer for a Mafia whose deadly tentacles and reach affected vast swathes of American life, as well as for New York City glitterati. It was in that fight against organized crime that Kennedy took on corrupt (“Every man has his price”) Teamster labor leader Jimmy Hoffa. In his book, The Enemy Within, the emerging crusader rightly put both business and labor on notice that, “The tyrant, the bully, the corrupter and corrupted are figures of shame.” It was RFK’s values and his moral compass that led him to remind his readers, and those today who also appear to need reminding, of the central role played by the “toughness and idealism that guided our nation in the past,” a “spirit of adventure, a will to fight what is evil, and a desire to serve.”

Less known to the public is the specific role played by Robert Kennedy’s leadership in promoting modern-day whistleblowers and the rights of public employee free speech. Toughness, idealism, fighting evil and a desire to serve is what unites real whistleblowers across the political and ideological spectrum, those who confront violations of law, rule or regulation, gross mismanagement, gross waste of funds or abuse of authority.

The role played by Kennedy’s former assistant at the U.S. Department of Justice, John E. Nolan, Jr., and those whistleblowers who Nolan later defended, forms the underlying narrative. The story pulls together both later legislative battles and the most effective advocacy by both Democrats and Republicans in fighting for the right to speak truth to power.

A Korean War veteran and a graduate of the U.S. Naval Academy, Nolan, who had worked on John Kennedy’s 1960 presidential campaign, came to public attention as a negotiator with Cuban dictator Fidel Castro for the return of CIA officers and more than 1,100 other men captured in the abortive 1961 Bay of Pigs invasion. In 1963, he took a leave of absence from the prestigious Steptoe & Johnson law firm to become Attorney General Kennedy’s administrative assistant. It was in that position that Nolan spent much of that summer in the Deep South working with top RFK aides Burke Marshall and John Doar. Those crucial efforts of the first White House ever to promote civil rights is more than half a century later so stunningly well captured in Steven Levingston’s Kennedy and King: The President, the Pastor, and the Battle Over Civil Rights.

Robert Kennedy, Nolan remembered in an interview with the Washington Lawyer, “had the qualities of natural leaders that exceeded those of anybody else I have seen. He was very direct, and I thought he had extraordinarily good judgment. He made a lot of quick judgments and was pretty good on that.”

Of particular importance was how Nolan addressed questions of federal employee free speech rights: “The more significant or more complex an issue was, the more he studied it, sometimes with the benefit of conflicting views and large groups that he would probe with questions. … He was more likely to get the right answer under those circumstances than anybody else I know or have heard of.” (Italics added.)

It was just months after Kennedy was shot the night that he won the California and South Dakota primaries that Nolan came to represent the famed Department of Defense whistleblower A. Ernest Fitzgerald. The DoD official, he rightly noted, “you might say … was the father of whistleblowers.” It was fighting for Fitzgerald and the fundamental good government issues that his case represented that led Nolan to make his first appearance before the Supreme Court.

On November 13, 1968 civilian analyst Ernie Fitzgerald testified before the Subcommittee on Economy in Government of the Joint Economic Committee of the U.S. Congress about the Pentagon’s order for the C-5A jumbo cargo transport plane, designed and built by the military-industrial giant Lockheed. Already the scuttlebutt of rumors, Fitzgerald was asked by a senator about the cost overruns in the bureaucratic fix. He testified under oath that there were some $2.3 billion (approximately $14 billion in today’s dollars) in unexpected costs, in 1968 considered an incredible sum. As Nolan remembered, Fitzgerald’s world “blew up with that single answer.”

As Nolan recalled in the interview with the Washington Lawyer, when then-President Lyndon Johnson’s outgoing secretary of the air force met with the person taking that position in the Republican administration of Richard M. Nixon, the Democratic appointee “had an agenda of the eight most important issues to take up. This was pretty close to the height of the Cold War, and you can imagine the momentous issues of nuclear war or peace that might have been included. Nonetheless, Ernie Fitzgerald was number two on his list.”

At the beginning of 1970, the administration of a supposedly “new” Nixon reorganized the Department of the Air Force and ordered a unique “reduction in force” whose only victim was Ernie Fitzgerald, an action for which Nixon took responsibility. (Transcripts of White House tapes made public years later showed that Nixon ordered one of his aides to get “rid of that son of a bitch.”) After the Civil Service Commission concluded that Fitzgerald’s dismissal was unjust and the newly-minted whistleblower was able to get his old job back in a lawsuit, he found that he no longer had a phone in his office, nor a secretary, or even anything to do.

The ghost employee then sued Nixon himself and two presidential aides whose names would be forever enshrined in the coming Watergate scandal—Bryce Harlow, the first person appointed to the White House staff after Nixon was elected president, and Alexander Butterfield, who revealed the existence of the White House tapes during the scandal investigation.

Fitzgerald’s lawsuits provide insight into some of the hottest questions faced today in our nation’s capital. Argued in late 1981, the Supreme Court held, 5-4, in Nixon v. Fitzgerald the following year that presidential immunity was absolute. However, in the second case, Fitzgerald claimed that Harlow and Butterfield were involved in a conspiracy that resulted in his wrongful dismissal—a charge that they denied—and asked for damages. Nolan pointed out, “the issue was derivative absolute immunity: if the president has absolute immunity, the argument was that his special assistants should have derivative absolute immunity.”

“That case was remanded to the District Court and it was settled under circumstances that were favorable to Fitzgerald.”

Even before that—as the media had fun with Fitzgerald’s on-going whistleblowing about widespread fraud at the Pentagon, including $400 hammers and $600 toilet seats—according to Senator Chuck Grassley, now the chair of the Senate Judiciary Committee, Fitzgerald “was instrumental in helping get the Civil Service Reform Act of 1978 passed.”

What is certain is that some of the other most important figures in the second half of the 20th century were linked to the Kennedy promise and, frequently the Kennedy Administration, and were also in their own way whistleblowers, speaking truth to power. They too, are examples that showed a “toughness … that guided our nation in the past,” a “spirit of adventure, a will to fight what is evil, and a desire to serve.”

Patricia A. “Patt” Derian served as a brave civil rights champion in brutally racist Mississippi, comforting the family of martyred civil rights leader Medgar Evers the day after his murder by the Klu Klux Klan. She later went on to work for Bobby’s brother-in-law Sargent Shriver in the war on poverty. According to Ellen B. Meacham’s, moving Delta Epipheny; Robert F. Kennedy in Mississippi, in April 1967, following Senator Kennedy’s hearing in Jackson on allegations that the Head Start program in Mississippi was misusing federal funds—refuted in the testimony of the young civil rights attorney Marian Wright, who later married Kennedy aide Peter Edelman—Patt fêted Bobby at a cocktail party in her own home.

When Jimmy Carter became president in 1977, as The Times of London recalled upon her own passing two years ago, Patt was “a courageous champion of civil rights who took on some of the world’s most brutal dictators in her role as a senior American diplomat.” Those defenders in Washington of notorious strongmen, those who today form a bipartisan gallery of international perp apologists, sought to discredit Patt in every way possible as she blew the whistle as only those with real moral fiber can.

Truth to power was her strong suit. It was as the first assistant secretary of state for human rights that Patt underscored that when it came to efforts to restore and promote human rights “you always have to play it straight.” As a member of the Robert F. Kennedy Memorial Foundation (now RFK Human Rights) awards committee, Patt brought that laser-like focus to leading the fight against an Orwellian State Department decision to deny visas– for “terrorist activities”—to four Salvadoran human rights advocates who were to receive $30,000 as part of that year’s foundation award. A year later, her testimony in a civilian court in Buenos Aires about Argentina’s so-called dirty “war” electrified the mini-Nuremberg proceedings. The trial of the military junta members resulted in their being put behind bars for orchestrating a clandestine campaign of state terror, of mass torture and murder.

Former CIA Director William Colby was arguably the most important national security whistleblower in modern times. When he took over the post, the United States was reeling from humiliation in Southeast Asia, the Watergate scandal, revelations about Nixon Administration support for the military overthrow of an elected democracy in the Americas, and the fact the Soviet Union—the pre-Putins—appeared on the ascendancy. It was Colby, a “soldier-priest” in the clandestine service, who told truth to power, a list of 693 single-spaced pages known as “the family jewels” given to Congress, showed how the Agency had violated its charter by spying on Americans, reading their tax returns, tapping their telephones, and opening their mail. It had conducted LSD experiments on unwitting human guinea pigs. It had plotted to murder foreign leaders. As crusading journalist Daniel Schorr noted in his autobiography, Stay Tuned: A Life in Journalism,

At Tulane University, I had been scheduled to debate (former CIA Director) Bill Colby. He defended me better than I could have defended myself, telling the … audience, “Schorr carried out his obligation to the First Amendment and to himself as a newsman, and he should not be punished for the publication of the Pike (intelligence investigation) report.”

By disclosing some of America’s darkest secrets, and ensuring meaningful Congressional oversight, Colby was able to save an Agency most needed post-9/11, especially after revelations of Vladimir Putin’s direct involvement in trying to subvert the American democratic process.

At a time of great and frequently destructive hyper-politicization in the United States today, it is important to note that those at the forefront on Capitol Hill in promoting and protecting whistleblower rights span the Republican-Democratic and liberal-conservative divides. Senators Charles Grassley (R), Ben Cardin (D), Ron Johnson (R), Ron Wyden (D), Joni Ernst (R), Patrick Leahy (D), and Tammy Baldwin (D) and Members of the House Jackie Speier (D), Ron Coffman (R), Hank Johnson (D), and Ron Blum (R) are just some of the most fierce and effective champions of federal employee First Amendment rights.

Jackie Speier has noted:

“Whistleblowers are on the front lines, working to uncover waste, fraud, and abuse. Throughout my career, whistleblowers have been central to my work in oversight and reform. They’ve brought to light wasteful spending, hostile workplaces, and dangerous practices from the Pentagon to the pipelines beneath our feet. We must provide them with the protections they need to work with Congress and the Inspectors General to conduct genuine oversight. I look forward to working with my colleagues to fight for strong whistleblower protections across all departments and agencies.”

Being able to unite people of diverse backgrounds and experiences in difficult times was one of Robert Kennedy’s most important contributions to American politics. Whistleblowers honor not only his advocacy of change through law, but also the fact that today—when America needs it most—they serve and protect both the interests of the American taxpayer and our common values.

It was one of RFK’s favorite philosophers, Albert Camus, who said, “A man without ethics is a wild beast loose upon this world.” And as Kennedy said in his Law Day Address at the University of Georgia Law School, delivered 6 May 1961 in Athens, Georgia, “In the United States, we are striving to establish a rule of law instead of a rule of force. In that forum and elsewhere around the world our deeds will speak for us.”

Martin Edwin Andersen has been a national security and human rights whistleblower at both the Departments of Justice and Defense.  In 2001, he was the first national security whistleblower to receive the U.S. Office of Special Counsel’s “Public Servant Award” for fighting against Criminal Division failures to protect CIA classified information, senior DoJ management’s leaving themselves open to blackmail in proto-Putin Russia, and myriad issues of waste, fraud and abuse. In his most recent case involving U.S. Southern Command, Andersen has filed three Congressional Disclosures to the Intelligence Community Office of the Inspector General, the latest of which was forwarded by the Director of National Intelligence to the House and Senate Intelligence Committees on Thursday.

Posted in BLOG

Whistleblower Coalition Urges Office of Special Counsel to Investigate Justice Department amid Gag Order Trend

WASHINGTON, DC – Today, the Steering Committee of the Make It Safe Coalition (MISC) unanimously urged merit systems Special Counsel Henry Kerner of the Office of Special Counsel to investigate recent statements made by Attorney General Jeffrey Sessions that violate both the Whistleblower Protection Enhancement Act, the Lloyd Lafollette Act of 1912, and the FY 2017 Consolidated Appropriations Act. The letter supports conclusions made by Chairman of the Senate Judiciary Committee Charles Grassley (R-IA) delivered on February 5.

On January 29, Mr. Sessions issued a memorandum effectively barring “attorneys, officers, boards, divisions, and components” from communicating with “Senators, Representatives, congressional committees, or congressional staff” without prior approval from the Department of Justice’s (DOJ) Office of Legislative Affairs. It is especially egregious that the DOJ entrusted to enforce our nation’s laws is violating the Constitution’s First Amendment

The MISC letter underscores the dangers these actions pose to congressional oversight as well as the rights of federal employees and the U.S. public generally:

When an agency unlawfully gags its employees, it threatens Congress’ ability to engage in oversight and hampers citizens’ right to know about waste, fraud, abuse and threats to the public’s health, safety, and liberty. These efforts also create a chilling effect on the many federal employees committed to exercising professional integrity in fulfilling their agencies’ mandates.

 

GAP Legal Director Tom Devine commented,

The Justice Department’s blanket prior restraint on congressional communications cannot co-exist with the first amendment or the Whistleblower Protection Act. The WPA and appropriations law require all nondisclosure policies to have a congressionally-drafted addendum that rights to communicate with Congress and in whistleblower laws trump any conflicting restraints. The Attorney General’s order does not include the congressionally-required free speech qualifier. This lawlessness is worst when it comes from the agency responsible to enforce the rule of law.

At GAP, we are receiving regular reports of illegal prior restraint throughout the government. Illegal gag policies are becoming the rule, rather than the exception.  The Office of Special Counsel needs to exercise leadership reversing routine defiance of the overwhelming congressional anti-gag mandate. 

Elizabeth Hempowicz, Director of Public Policy for the Project On Government Oversight, commented,

It is disconcerting to see yet another executive branch communications memo that fails to include legally required language that makes it clear to all employees that their abilities to make protected disclosures remain intact. A key component to any remedy would be a clear communication from the highest levels of the Department of Justice to all employees and contractor staff that they are protected for blowing the whistle.           

Shanna Devine, Worker Health and Safety Advocate for Public Citizen’s Congress Watch Division, added,

Attorney General Sessions’ gag order violates DOJ employees’ century-old right to inform Congress of government wrongdoing.  OSC needs to take swift action to ensure government-wide compliance with the Whistleblower Protection Enhancement Act, starting with the removal of DOJ’s illegal memorandum.

The Make It Safe Coalition is a nonpartisan, trans-ideological coalition of 80 NGO’s united in support of whistleblower protection to further government accountability. In addition to the above organizations, the Steering Committee includes the Liberty Coalition, National Taxpayers Union, Taxpayers Protection Alliance and Union of Concerned Scientists.

 

Contacts: Tom Devine, (202) 457-0034, ext. 124, TomD@whistleblower.org; Liz Hempowicz ehempowicz@pogo.org; (202) 347-1122;  Shanna Devine, sdevine@citizen.org; (202) 454-5168

 

 

Posted in Press release