Whoa, Tom! There's so much to talk about; I don't know where to start. Maybe we should begin with why it matters how whistleblowers are treated. Aren't they just big tattletales looking for fame or fortune?
Because they are the pioneers who change the course of history. In any given instance, they may be wrong but they keep us from getting stagnant or slipping into ruts. Exercising the freedom to protest, they are the agents of accountability. Exercising the freedom to warn, they prevent avoidable disasters before it is too late for anything except finger pointing and damage control. The evidence is clear that 9/11 would not have occurred if bureaucrats had not ignored whistleblowers' warnings. Enron went bankrupt, in part because CEO Ken Lay chose to professionally kill the messenger, whistleblower Sherron Watkins, instead of heeding her warning.
Consider a few examples of how they made a difference when we listened to them: 1) removing the killer painkiller Vioxx from the market, after some 50,000 Americans died -- nearly as many as lost their lives in Viet Nam -- from a drug the FDA officially had decreed safe. 2) convincing Congress to cancel the next generation of Star Wars, budgeted for one trillion dollars. 3) exposing cover-up of billions of gallons of radioactive waste leaks from the Hanford nuclear waste reservation. 4) stopping nuclear power plants that were accidents waiting to happen due to systematic safety violations and falsified records. 5) cancelling toxic incinerators dumping poisons like arsenic, dioxin and mercury into churches and schoolyards, again sustained by falsified records. 6) reducing from four days to two hours the amount of time that foreign visitors can be held without rights, ending indefensible human rights abuses against visitors arbitrarily detained. 7) exposing blanket, illegal government domestic surveillance. 8) defeating plans to replace government meat inspection with corporate honor systems for the federal seal of approval. 9) winning mandatory testing of commercial milk for antibiotics and other animal drugs. 10) increasing recoveries against civil fraud in government contracts from less than $20 million annually, to a billion dollars annually through False Claims Act suits.
Having worked with over 5,000 whistleblowers, for sure, it takes all kinds! Motives range from noble to nefarious. But the common motive is that they have to act on their knowledge to live with themselves. They'd be haunted by their silence. They are being true to themselves, for better or worse. Not that motives matter beyond credibility. The most valuable witnesses against Mafia Dons were hit men. But my experience has been more than a little inspiring. Most are trying to play it straight doing their jobs, learn something they wish they can't live with, and find themselves at the intersection of valid but conflicting life values -- such as loyalty to supporting their families versus loyalty to the law when their employer is breaking it. They have to decide which value they'll risk their careers for, and which stops at lip service.
One of GAP's main services is trying to help would-be whistleblowers know exactly what they are getting into, to make an informed choice on a life's crossroad decision. Their lives will never be the same. For those blowing the whistle to pursue fame or fortune, hopefully we can convince them not to make what could be the worst mistake in judgment of their lives.
Rather than champion the contributions of whistleblowers, Obama and company have been even more rabidly anti-whistleblower than the Bush administration was. Look at Bradley Manning and Julian Assange and the whole Wikileaks issue. What can a Person of Conscience, prepared or ill-prepared, expect - in terms of retaliation - as thanks for his or her attempts to expose wrongdoing?
First, anyone who threatens abuse of power can expect to be the target of any retaliation necessary to eliminate the threat. This is like the institutional equivalent of animal instinct or a law of nature. It transcends ideology, public versus private organization, or government structure.
Presidents Bush and Obama both have been consistently intolerant of those who indiscriminately leak classified information to the world, such as Manning and Wikileaks. That rigidity is almost a foregone conclusion for any president, because the alternative is dysfunctional for any government.
Whistleblower groups are fighting for a different form of free speech rights: lawful disclosures about misconduct that betrays the public or investors. On that front, during the first two years, no other President ever has championed whistleblower rights as steadily as Mr. Obama in the ways that make a difference. No other President is close. And I'm a very hard person to please!
It started with unprecedented access, as White House Ethics Counsel Norman Eisen treated activists as equals in front lines advocacy to enact the strongest possible Whistleblower Protection Enhancement Act.. In my 32 years, no other administration has worked with the good government activists on whistleblower rights, and no Democrat has gone beyond lip service support. Republicans threaten and veto it. Similarly, Mr. Obama is the first President to issue a Statement of Administration Policy specifically supporting corporate whistleblower protection: gold standard free speech rights to some 20 million workers as part of a consumer protection law.
A little noticed, recent Executive Order on Controlled, Unclassified Information is a stunning Obama victory against gag orders. It defanged hybrid secrecy, or pseudo classification categories that sprang up as "100 points of darkness" during the Bush administration, with the criminal penalties of classified records but neither the justification nor safeguards. The EO removes any liability based solely on CUI restrictions such as "Sensitive Security Information" or "Unclassified but Sensitive." Mr. Obama may be rigid prosecuting classified leakers, but he deserves credit for rolling back a serious threat to make nearly all government information criminally secret.
For those who deliver legal rights, the litmus test for a politician is appointments to positions that translate paper rights into reality. Again, no one has come close to Mr. Obama. Nearly all whistleblower cases, corporate or government, ultimately are decided in two respective administrative appeals boards. For each, the administration's appointees are the most experienced, expert collection committed to employee free speech rights at either institution since its creation, by far. After frustrating delays, he appointed a Special Counsel universally respected, Carolyn Lerner, to investigate whistleblower retaliation and enforce merit system rights. Her brain trust is the leading activists and employee rights lawyers in recent years. For the first time, whistleblowers' rights are in the hands of those who believe in them.
Please don't get me wrong. Being the best President isn't such a high bar, and Mr. Obama has not yet brought rights we can believe in for government whistleblowers. This year, the administration has been invisible as activists struggle anew to pass the WPEA, which came within a whisker of approval until a secret Senate hold blocked final enactment an hour before adjournment last December 22. We need his help until the job is done successfully.
I also do not want to defend an indefensible abuse of power in the Tom Drake prosecution. I was on the GAP legal team counterattacking for a whistleblower whose charges were corroborated after hundreds of hours with the Office of Inspector General, and refusing to provide classified information to the media as a condition for his only media interview. He did it right, but was prosecuted under the Espionage Act. (?!) While Mr. Obama should have stopped it, he is not primarily to blame him for a case that, like most, had a life of its own before he arrived.
"For those who deliver legal rights:" what does that mean, Tom?
"Those who deliver legal rights" refers to the lawyers and NGO support groups who try to help whistleblowers survive with the benefit of laws creating rights on paper. If the boards or agencies responsible to implement and enforce them are indifferent or hostile, the rights may not be worth the paper they are written on. The nature of appointments to those jobs is the real test of whether a politician is serious about turning rhetoric into reality. Otherwise, whistleblower laws in practice can be like Trojan horses that finish off reprisal victims they purport to protect.
Regarding what's a win: There are two ways to answer this question. One is the simple one that's best for evaluating how well a statutory right is working: Did the employee who filed a legal complaint receive a substantial amount of relief, based on a ruling that his or her rights were violated? It is similar to whether a whistleblower's dissent was vindicated: Did the disclosure make a substantial difference in challenging whatever misconduct was alleged? The other answer is far more subjective, and the one that counts for whistleblowers. Are they at peace with the outcome? Usually this means having had some impact, while surviving financially and within their professions. However, in my experience many whistleblowers have changed professions, becoming teachers, expert witnesses, lawyers and even working at GAP!
Let's pause here. Thanks for talking with me, Tom. And readers: please stay tuned for the conclusion of this interview.
Goverment Accountability Project [GAP] website