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Law, retaliation doom whistleblowers, panelists say

By Nikki Troia
First Amendment Center Online

ARLINGTON, Va. — In reporting government fraud or abuse, whistleblowers often find they have committed career suicide. And, National FOI Day panelists said yesterday, the law that’s supposed to protect whistleblowers from retaliation is sometimes used against them.

“That was depressing” was the reaction from two people leaving the room after the discussion on “Whistleblowers: Patriots or Traitors” at the 8th annual Freedom of Information Day conference.

Saying that whistleblowers can run the gamut from “pioneers of change” to real “pains in the neck,” panelists who were supposed to debate whether whistleblowers are patriots or traitors all agreed that such informants are necessary to expose government wrongdoing.

They also agreed that whistleblowers are often a doomed lot when it comes to their careers in government.

Danielle Brian

Asked by moderator Danielle Brian of the Project on Government Oversight where a whistleblower is supposed to go to report a problem when, after all, there are no government handbooks on the subject, lawyer and whistleblower defender Tom Devine said “probably the clearest direction to point them would be underground.”

“If they try to act openly through the government’s checks and balances, it’s pretty much exposing yourself to a barrage of friendly fire from your own government that you can’t defend yourself against,” Devine said.

Tom Devine

There are official channels that can be used, he said, but using them doesn’t mean that a whistleblower won’t be exposed to retaliation.

Devine also said that by blowing the whistle on government waste, fraud and ineptitude, public employees are often committing professional suicide.

“Inherently anyone who challenges is a threat to those who have power … is going to be asking for it,” Devine said. “It’s beyond good government or bad government, it’s animal instinct” to act to neutralize a threat.

“The laws today are actually an efficient mechanism to rubber-stamp retaliation,” he said.

Devine added that “despite the almost ‘inspirational’” nature — at least on paper — of the federal law that’s supposed to protect whistleblowers, “enforcement has been so flawed that the Whistleblower Protection Act is probably the best reason for government workers to make to remain silent.”

He added that whistleblowers almost have to become “leakers and operate anonymously in order to have any chance to commit the truth and get away with it.”

Devine said his view might seem cynical but that it was based on “empirical reality.” Since the Whistleblower Protection Act became the “strongest free-speech law in history — on paper — in 1994, the court that [holds] the monopoly [on] appellate reviews of the statute has ruled against whistleblowers in 119 out of 120 decisions on the merits. You don’t have a fighting chance to succeed.”

While admitting that the panel was stacked with whistleblowers and their defenders, moderator Brian asked Mark Tapscott, a former journalist now with the Heritage Foundation, what could be done to protect both national security and freedom of speech.

Mark Tapscott

“That’s precisely the core of the issue we’re confronting,” Tapscott said.

He said members of the audience would all agree that legitimate secrets pertaining to national security need to be kept. And, he added, that there are times when information is improperly classified and whistle-blowing is legitimate.

“That’s the dilemma: Who’s going to make the decision about whether or not a document is presumably classified?" Tapscott said. "And I think very frankly ... that in the final analysis it can only be determined on a case-by-case basis.”

Panelist Michael German, an FBI whistleblower now with, said that while he was an undercover agent, “government secrecy kept me alive.”

Michael German

German was a special agent with the FBI for 16 years before leaving in 2004 after reporting on the intentional falsification of records in a counterterrorism investigation. He told Congress in February that he had been retaliated against for exposing the records fraud.

Had there been adequate protection for whistleblowers, German said, “you guys (at the conference) still wouldn’t know who I was. I tried to keep it in-house. I did everything I could through the process to try to keep everything in-house the way it should be.

“And it was only when I met with a brick wall over a two-year period that I finally realized the only way … to get the matter addressed was to bring it outside the agency, which then made me a whistleblower.”

German said he didn’t think he should request anonymity in the matter, as he was trying to bring to light information that he didn’t think should be secret. “The only way to have any credibility was to have my name on it,” he said.

The February hearing was before Connecticut Republican Rep. Christopher Shays’ National Security Subcommittee. German said a Senate Judiciary Committee hearing was coming up this year.

“Part of the problem is that the process is so long that by the time they say, ‘Yeah, OK, there was a problem,’ that problem was four years ago and whatever national security interests (there were) were lost — were lost,” German said. “So the process is definitely broken, which is why I think there haven’t been more whistleblowers.”

Congressional Research Service whistleblower Louis Fisher said his recent “soft landing” at the Library of Congress happened because he made his dispute public.

Fisher’s problems with the CRS began two years ago, after he wrote an article for Political Science Quarterly that was critical of “both branches, both houses, both parties” for the Iraq resolution of October 2002. He said it was the first time in 33 years that he had been criticized for writing he had done for an outside publication. “That was the first rebuke,” he said.

After trying to work on his problem inside the agency, he said, he “got nowhere at all.” In January 2005, after his second rebuke for an interview he had given, he “decided to throw the whole thing out to the public. ... Whatever’s happened to me, I want people to see all the memos and see all the traffic, and if I get fired it doesn’t bother me at all.”

Fisher said his interest in whistle-blowing stems from his wanting Congress to have adequate information from the federal agencies to do its work. Without that information, he said, “you can’t have representative government, the rule of law, you can’t have checks and balances … you can’t have public participation, you can’t stop [executive agencies’] abuse.”

A unitary executive, in which all federal agencies are accountable only to the president, also keeps information from getting to Congress, Fisher said. He said Congress had not done enough to defend itself as a separate institution in recent years.

The two whistleblowers on the panel — Fisher and German — also spoke of what they termed a major problem: the lack of accountability of agency managers who repeatedly retaliate against whistleblowers.

“In my case, the managers involved in the misconduct literally took White-Out and altered FBI records,” German said. “Now, if the FBI records can be so easily altered … are any of us safe? Is any civil liberty safe?”

He also pointed to the irony that the inspector general’s office failed in its effort to find out who altered the records. “Imagine that, the FBI and the inspector general can’t figure out who’s altering records within the FBI.”

Devine said his organization, the Government Accountability Project, was petitioning to reform the whistleblower law. He said 125 groups had signed the petition.

“Our specialty at GAP since 9/11 has been national-security whistleblowers,” Devine said. “The lessons that I’ve learned about how abuses of secrecy, sustained by repression, threaten our nation’s security have been some of the most educational of my professional life.”


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President's open-records order: working or worse?
By Eugenia Harris Panelists debate whether effect of executive order helps or hinders freedom of information. 03.16.06

Audio from 2006 National FOI Day conference
Audio of speeches, excerpts from panels during 2006 National FOI Day conference, March 16. 03.17.06

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'It's hard to believe that the government is serious about policing itself when it's whacking the people who are actually minding the store,' says director of waste-tracking group. 12.28.06

High court decision restricts whistleblower rewards
Ruling against retired engineer who sued over fraud at nuclear-weapons plant means it'll be tougher for whistleblowers to claim cash rewards. 03.28.07

Blowing whistle on contractor fraud in Iraq comes at high price
Two Americans file federal lawsuit alleging they were illegally imprisoned, subjected to interrogation tactics 'reserved for terrorists and so-called enemy combatants.' 08.27.07

Jury agrees Detroit mayor, city unlawfully fired police officers
Two men win $6.5 million in whistleblower lawsuit that alleged extramarital affairs by Kwame Kilpatrick, other misdeeds by his security unit. 09.13.07

Senate votes unanimously to protect government watchdogs
Bill aimed at shielding inspectors general from political pressure leaves out several provisions Bush administration had objected to in House version. 04.25.08

Balancing Act: Public Employees and Free Speech

2006 National FOI Day conference: Agenda

'Reflections on Where We Are' — Steven Aftergood

Whistleblower panel excerpt: National FOI Day 2006

Biographies of 2006 National FOI Day conference

National FOI Day

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