The Perfect Storm of Whistleblowing -- Our Duty, Our Dilemma

2011 Washington Whistleblower Assembly

- A Conference for Accountability -

19 September 2011

Thomas Drake - Keynote

"No tyranny is more cruel than that which is practiced in the shadow of the law and with the trappings of justice: that is, one would drown the unfortunate by the very plank by which he would hope to be saved."  - Montesquieu

Today we assemble together at the center of a perfect storm for whistleblowing - defined by our conscience of duty to speak out while challenged by the real dilemma of making our world and our welfare a better place -- by placing at great risk our own personal and professional well-being. 

I also stand here in front of you and speak before you to sound the alarm and ring the warning bell regarding what power and politics will attempt to do in this country against a whistleblower and a government simply willing to grant itself a license to violate the central liberties and civil rights I took an oath to defend as a public servant four times in my government career -- twice in the military, at the CIA and then the NSA.

We face both enormous challenges to prevail as individual whistleblowers, as well as real opportunities as a whistleblowing community through enhanced law, ethics, public outreach, advocacy and reform because whistleblowers are now needed more than ever.

The paradox is that we truly inhabit a whistleblowing rich environment while facing truly great and persistent perils when exposing and disclosing malfeasance, corruption, and wrongdoing in the workplace.

Our perfect storm is created by the nexus of power and politics in the halls and shadows of government, within our private and public institutions, the corporate executive suites, and the company boardrooms -- where secrecy and withholding are often the order of the day in doing business, while openness and transparency are considered anathema and increasingly a threat to the status quo.

And yet by the very inherent nature of whistleblowing our protection and our security are most often violated by the very institutions we serve. Our daily dilemma is quite palpable. The conflict we face and its consequences are all too real. What takes priority? Blowing the whistle on corruption, cronyism, and the ills and wrongs of the status quo, or just remaining silent - letting loyalty and obeisance to the company and institution preserve one's job, one's career and one's security?
Let me just say it - whistleblower protection is all too shallow and mostly a house of cards.

There is no alternative to silence.

Yet let there also be no misunderstanding. The current challenges we face as a whistleblower community are unprecedented in a climate increasingly characterized by fear, intimidation, retribution, reprisal and retaliation.
Back in 2002, whistleblowers in the persons of Worldcom's Cynthia Copper, Enron's Sherron Watkins and FBI's Coleen Rowley were lauded and made the People of the Year for Time magazine. Almost a decade later whistleblowers are now pasted on the wanted posters by the federal government.
Our circumstances raise a most troubling question - Are we as whistleblowers individually and collectively becoming an increasingly endangered species?

We hear of the egregious public cases, but there are many more cases that never make the press or see the light of day. How many other whistleblowers suffer in silence, have no voice, and pay their own very tragic personal and professional price -- sacrificing career over conscience with little or no support?

We need to ask of ourselves the hard question - Is past the prologue - in the present campaign of pursuing, punishing, persecuting and prosecuting whistleblowers - becoming the most troubling future norm?

One most disturbing trend is the federal government's truly unprecedented war on whistleblowers.

For example, whistleblowers in the government increasingly face prosecution (or worse), with little or no protection -- even under existing laws - laws that clearly come up way short - hollow means that often expose whistleblowers to the very things they disclose!

Increasingly whistleblowers experience persecution and isolation.

The alternative of silence and the reality of whistleblowing in the face of very stiff headwinds, powered by raw intimidation and suppression, are completely unacceptable. 

And yet we must also understand as a whistleblower community the clear political and personal ramifications and consequences of having information and knowledge that rises to the level of whistleblowing and doing what is right individually while protecting and defending the rights of whistleblowers as a focused community - and also ensuring that new whistleblower laws have real teeth and are not only passed but enforced. 

Alignment is critical. We must categorically stand together united - dedicated to fully protecting, preserving and defending our very own future well-being as whistleblowers in the face of those who would silence and suppress us. 

My own recent and successfully concluded case in prevailing against a multi-year, multi-million Department of Justice criminal investigation, prosecution and Espionage Act indictment against me, is direct evidence of an out of control and 'off the books' government that is increasingly alien to the Constitution. The rise in this form of a contrary government assuming the shape of a national security state under surveillance evidences the all too distinct and historically familiar characteristics of an alarming "soft tyranny' and is anathema to democracy and our Constitutional Republic - or what's left of it. 

Whistleblowers in this toxic and culturally caustic environment are truly at great risk. 

One could make the case that the government choosing to make myself (and others) targets -- as part of a much broader campaign against whistleblowers out of malicious reprisal and retribution for standing up against government malfeasance, the military-industrial-congressional-intelligence-surveillance complex, and just plain wrongdoing -- sends the strongest possible message about what the government can and will do when one speaks truth to power - a direct form of political repression and censorship. 

The government wanted to take my whistleblower voice away simply because of what I knew and reasonably believed was evidence of violations of law, statute and regulation; gross mismanagement; gross waste of funds; abuse of management control authority; and actions on the part of government that I believed were fundamentally endangering our national security, while putting our country at additional, but unnecessary risk. 

I had followed all the rules until it fundamentally conflicted with the primacy of my oath to defend the Constitution and became civilly disobedient administratively. However, as a result of the government's April 2010 indictment against me after a multi-year, multi-million dollar Department of Justice "leak' investigation, I became an enemy of the state and a high value target charged under the Espionage Act by my very own government wanting to put me away for decades in prison.
However, the real purpose of the raids by the FBI and the prosecutorial actions of the DoJ against myself and others serves to punish whistleblowers who would attempt to disclose shocking and embarrassing truths, regarding corruption, malfeasance, contract fraud and illegalities committed by the U.S. Government. The other purpose is to warn and otherwise intimidate current and future employees who would seek to expose wrongdoing in our governmental institutions.
In the absence of meaningful whistleblower legislation, and in the wake of some of the most ineffective congressional oversight in the history of our Nation, the American public may never know what their government is doing or has wrought, were it not for whistleblowers. 

And if Americans truly knew the extent to which the federal government and the national security state have turned this country inside out with respect to electronic surveillance for the purposes of increasingly targeting and tracking anybody at anytime, it is not a stretch to imagine the power the government holds over us in secret. 

At its core the government has criminalized whistleblowing through the abject misuse and abuse of power. 

 
If sharing issues of significant and grave public concern - that do not in any way compromise our national security - are now considered a criminal act under the 1st Amendment, we have seen not only the continuing destruction of the Constitution by our own government, but also the attempt to suppress freedom of thought, free speech, and association. 

It is pure sophistry to argue that the government can and should willfully operate with secret impunity and immunity - even when unlawful - from those it is Constitutionally bound to serve and protect, when duty bound to provide for the common defense and the general welfare of the Nation, and then prosecutes those who reveal their misdeeds and wrongdoing that violate that very duty. 

The American Revolution was largely sparked by colonial outrage over the Alien and Sedition Acts and the restrictions on press and assembly with others, as well as arbitrary writs that granted access to people's homes and property by fiat and not through cause.  

 
Do we really want the government suppressing frees speech protected under the 1 st Amendment while violating our 4 th Amendment rights that protect our homes, papers and other personal effects and information from unlawful search and seizure -- even electronically - without probable cause of disloyalty or illegality? 

 
Is this how our democracy begins to die? Is this the country we now wish to keep? 

Reminds me of the 1975 spy thriller movie - "Three Days of the Condor" starring Faye Dunaway, Robert Redford and recently deceased Cliff Robertson.  Like Joe Turner (the analyst in the movie played by Redford), I found myself in grave danger because I blew the whistle on contract fraud, government officials selling out national security for institutional self-interest, and collusion involving the NSA and the White House at the highest levels to bypass the Constitution and turn the US into a surveillance nation. 

Speaking of Hollywood -- Did you know that Cliff Robertson was exiled from acting for some four years because he blew the whistle and exposed a studio head forging checks? 

And that Senator Smith in "Mr. Smith Goes to Washington" also clearly became a whistleblower against the collusion and corruption of special interests and the senior Senator from his own state that wanted to ram through Congress a "deficiency bill" that included a sweetheart deal for a special land swindle project involving payoffs and a dam that would flood Willet Creek, the very place where Mr. Smith wanted to create a national boys' camp? 

 
Let's now take ourselves to the very beginning of the history US -- back to the future.

 
Important to note that this country has been there before when it comes to whistleblowing. And yet this tension between protecting true national security secrets and ensuring the public's "right to know" about abuses of authority is not new. Indeed, the nation's founders faced this very issue. 

During the Revolutionary War, a few whistleblowers took a huge risk and petitioned the Continental Congress with direct evidence that the commander of the Continental Navy, a Commodore Hopkins, had participated in the torture of captured British sailors.  Hopkins was quite powerful and very well connected - his brother was a signer of the Declaration of Independence. 

No surprise, but Hopkins retaliated with extreme prejudice -- filing a criminal libel suit against the whistleblowers -- all military - and they were arrested and put in jail for what they later said was "doing what they then believed and still believe was nothing but their duty." 

The Continental Congress voted to remove Hopkins from his post and in the summer of 1778 passed into law this country's first whistleblower protection and I quote: "That it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge." 

This law also provided the whistleblowers with legal counsel to fight criminal charges and even authorized payment for all the legal fees they incurred dealing with Hopkins! 

Remember - the country was at war. And yet remarkably, Congress did not hide behind claims of government secrecy or invoking any executive "state secrets" privilege.  In actual fact, Congress also authorized the release of all records dealing with the removal of Hopkins.  Furthermore, the whistleblowers didn't have to use a Freedom of Information Act to release all of the exculpatory documents that vindicated their whistleblowing, or even keep away from the public the fact that Hopkins had tortured and abused and severely mistreated British prisoners of war. And in the end, the whistleblowers won their case in a court of law! 

Consider this the template for the future we need to see as whistleblowers. 

And what more proof can one have than this telling episode that took place at the very embryonic stages of this country's founding -- fully demonstrating that the dominant purpose for what later became the First Amendment was to prohibit the widespread practice of government suppression of embarrassing information? 

A 1989 law -- the WPA - was supposed to protect federal employees who expose fraud and misconduct from retaliation. But over the years, these protections have been completely undermined. One loophole gives the government the absolute right to strip employees of their security clearances and fire them, without judicial review. Another bars employees of the National Security Agency and the Central Intelligence Agency from any coverage under the law. And Congress has barred national security whistleblowers who are fired for exposing wrongdoing from obtaining protection in federal court.
Therefore, it is no surprise that honest citizens who witness waste, fraud and abuse in national security programs, but lack legal protections, are silenced or forced to turn to unauthorized methods to expose malfeasance, incompetence or negligence.
Instead of ignoring and intimidating whistleblowers, Congress and the executive branch would do well to follow the example of the Continental Congress, by supporting and shielding them.
In a world filled with inequity, politics, institutional loyalty and abuse - resisting organizational power is often an act of career suicide by a whistleblower. 

In a world inhabited by powerful institutions, whistleblowers are not simply disadvantaged by those in charge -- they are often fully retaliated against, leading to devastating consequences.

 
Whistleblowers typically act alone resisting against the will and might of the institution -- large or small.  Our whistleblower well-being is very much dependent on those who have institutional power over us -- an automatic social inequality. A whistleblower perceives that a wrong has been committed and responds by attempting to address that wrong. Yet in practice, when the wrong is the result of those with direct power over the whistleblower, a real inequity is created. 

Typically, there is no need to blow the whistle if one's own subordinates perpetrate the wrong since the whistleblower more than likely has the power to address the wrong.  

However, exposing the wrongdoing as a subordinate often results in retaliation against the whistleblower, while the underlying cause goes unaddressed. 

We must also appreciate that organizations are absolutely ruthless when it comes to whistleblowing and especially when the organization is well entrenched, and has lots of resources at their disposal to go after the whistleblower. More often than not they turn the whistleblower into an outsider, banishing them from any influence, while also ensuring that they can do no further damage. 

 
In this rigid social institutional climate, individual integrity and rights do not matter, law does not matter, and maintaining the status quo of the organization takes priority -- including sacrificing those individuals who would dare question the authority of the organization or expose the organization's dirty linen. 

And yet I stood up - eyes wide open - against such an institution at NSA engaged in corrupt conduct involving American taxpayer monies and illegalities that were not necessary except to get away with them in the name of national security through the secret abuse and aggrandizement of unaccountable executive power.   

However, I could not have stood up (or now stand before you as a free American), against the full weight of the overwhelming arsenal that the government used to target me as a whistleblower, without the exemplar example of a brave and courageous whistleblower who did not have the benefit that I did and who has pioneered the way for whistleblowers, after great personal and professional sacrifice, in the post 9/11 world characterized by secrecy and fear-driven decision making that pushed so much of the ideals of this country right past and over the edge of law, ethics, and historical precedent.
Jesselyn Radack resisted organizational power at its core, after the very institution she worked for violated its own rules and our Constitution for the sake of expediency and publicity in the newly declared global war on terrorism. Her intrepid resistance to the unacceptable and the dawning realization that much of what this country had gained at great expense over the past 200 years was eroding, speaks volumes to her integrity and holding fast to the truth of her experiences in the face of ethical violations committed within the Department of Justice simply because they had the power to do so and figured they could get away with it -- no matter what the law or the ethics required. 

 
In resisting organizational power, Jesselyn became a whistleblower by virtue of standing up for what mattered in the face of the reality that people within the Department of Justice lived with secret power and authority and wanted to maintain it, while also desirous institutionally in getting away with the changed legal and littered ethical landscape justified by 9/11, with any number of intended and unintended consequences.
Jesselyn herself became the subject of extreme retaliatory actions by the government as an object lesson in punishment for having resisted the organizational power in the first place that also had the ability to cover up and conceal the truth she revealed internally. The government also clearly did not want the disclosure of its ethical wrongdoing made public for all to see given the "dark side' legal paths that the Bush Administration had chosen to go down for expediency in the furtherance of strategic foreign policy post 9/11. 

Jesselyn and I both stumbled on and got in the way of two of the most controversial policies of the Bush Administration in their early embryonic stages: torture and secret surveillance. The government attempted to justify both through a theory of expansive presidential power, enabled by a state-secrets doctrine that was used to evade judicial review. 

We both complained through internal channels--our supervisors and respective Inspectors General--and, when that failed, made the difficult choice to go to the press with unclassified information of significant public concern and interest. Then we became targets of federal criminal investigations into our disclosures. In effect, for exercising our fundamental First Amendment right to speak to the press about issues of public concern--revealing only unclassified information--we were designated as bad people--criminals-- who had become turncoats, traitors and enemies of the state. 

In reality, our "crimes" amounted to embarrassing the government by exposing high-level government wrongdoing and illegality. Like most of the current crop of whistleblowers in the same boat, neither of us was alleged to have actually harmed national security. 

When the Obama administration took office, each of us hoped that reason would prevail and that the persecutions would stop. This wasn't reading too much into Obama's statements. He had campaigned on abuses brought forward by whistleblowers and came into office hailing whistleblowers as courageous and patriotic. 

Obama's actions have not matched his words. His Administration's reaction to national security and intelligence whistleblowers has been even harsher than the previous Administration. The Bush Administration harassed whistleblowers unmercifully, but it took the Obama Administration to actually prosecute them. 

For a president whose mantra is to "look forward and not backward" when it came to investigating torture and warrantless wiretapping, it is rank hypocrisy to resuscitate such stale Bush-era cases for disclosures that served the public interest and did no harm to national security. 

Using the Espionage Act to silence public servants who reveal government malfeasance is chilling at best and tyrannical at worst. This administration's attack on national security and intelligence whistleblowers expands the origins of Bush's secrecy regime and cripples the free press by silencing its most important sources. It's a recipe for the slow poisoning of a democracy. 

Just after the signing of the Constitution, in answer to a woman's inquiry regarding what kind of government the Founding Fathers had created, Benjamin Franklin reportedly answered, "A republic, if you can keep it." This is not the kind of republic I want to keep. 

 
I share this history with you because it strikes at the historical heart of the matter regarding whistleblowing and the excruciatingly hard and difficult choice faced by whistleblowers - fundamentally centered on the moral dilemma of remaining silent in the face of massive fraud, waste, abuse, mismanagement and illegalities committed by the government, or literally risking one's career and freedom in speaking up and out about it. 

What do we do? We can't just treat the symptoms, but whistleblowers are both the canaries in the coalmines of our society as well as the blinking red alarms that something must be done immediately and everything in between.
We also can't have avenues of redress for whistleblowers completely compromised due to institutional conflicts of interest. We must pass meaningful legislation that protects whistleblowers -- like the WPEA -- although not perfect -- it does serve to help restore due process and whistleblowers defending themselves against criminal referrals by virtue of their blowing the whistle -- including the national security arena. 

We must also have an affirmative defense for protecting whistleblowers against criminal prosecution, while also preventing unilateral retaliation by the government against whistleblowers. 

Although many of the great strides and reforms in society have been the result of whistleblowing, it is precisely the lack of protection for whistleblowers today (in both private industry and government), where problems of wrongdoing and malfeasance and abuse become more often concealed than revealed. 

 
So many of the gains made for whistleblowers in the wake of the civil rights movements from the 60s and 70s have become severely eroded, even though a host of federal and state laws were enacted during this time period and designed to protect employees even in private industry, including laws that did not permit retaliation or reprisal by employers when reporting violations in public. 

And yet the very fear of reprisals, despite all this legislation passed, including the 1978 Civil Service Reform Act, the False Claims Act, the Whistleblower Protection Act of 1989 and even the Intelligence Community Whistleblower Protection Act of 1998 that I followed in protected communications with Congress and the Department of Defense Inspector General - and that were supposed to protect the disclosure of information by whistleblowers - has more often than not served to suppress and intimidate whistleblowers or even used as the pretext for criminal investigations and prosecutions against Americans who were simply upholding their oaths.
We have seen that even a legislatively created right to protection does not mean that the protection exists in practice when a person blows the whistle on illegalities or wrongdoing -- and especially where there is little or no enforcement.
So let me challenge you. Whistleblowing has become a hazardous occupation and not subject to hazardous duty pay!  If internal whistleblowing is fraught with peril, then protection for external whistleblowing becomes even more critical within our community going forward. 

I look forward to the rest of our time together here at the Assembly -- while continuing to seek the protections we must have as whistleblowers. 

With each and every one of you I challenge us -- that we take up and rise to the task, for the sake of whistleblowing now and into the future, resolving at this Assembly to urgently press for the best and most effective whistleblower protection we can advocate and achieve together in this current climate, and then build upon those efforts to secure those critical protections through enforcement and oversight going forward.

"Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it." -- Judge Learned Hand