Protecting the Rights of Whistleblowers

Home , Blowing the Whistle, Coleen Rowley

Lauren Robinson

Coleen Rowley became one of the most famous whistleblowers in the United States in recent times when she blew the whistle on intelligence blunders at the FBI. The special agent’s fiery 13-page letter to FBI Director Robert Mueller in 2002 detailed the FBI’s failure to investigate Zacarias Moussaoui, a French national of Moroccan descent known as the “20th hijacker,” in connection with the September 11 attacks. Rowley was named Time magazine’s “Person of the Year” in 2002 along with two other whistleblowers. Rowley’s team, based out of the FBI’s Minneapolis office, arrested Moussaoui just weeks before the 9/11 attacks. Moussaoui had attended terrorist training camps in the Middle East and spent $8,000 on flight training for a Boeing 747. Rowley and her team requested a warrant to search his com- puter, but her supervisors denied the request. Moussaoui later pleaded guilty to conspiring to commit the atrocities, although he originally denied ties to 9/11, saying he had plans for a separate attack of his own. In her memo to Mueller, Rowley criticized the FBI’s failure to act: Hopefully, with our nation’s security on the line, you and our nation’s other elected and appointed officials can rise above the petty politics that often plague other discus- sions and do the right thing. You do have some good ideas for change in the FBI but I think you have also not been completely honest about some of the true reasons for the FBI’s pre-September 11th failures. Until we come clean and deal with the root causes, the Department of Justice will continue to experience problems fighting terrorism and fighting crime in general.1

Rowley’s concerns were met with a great deal of high-pow- ered support, attracting media attention, and fueling congressio- Coleen Rowley, the FBI agent who went public about the bureau’s mishandling of the Zacarias Moussaoui case, is shown nal investigations and hearings. They even gained the attention during an interview with the Associated Press in Washington, of the Special Staff of the 9/11 Joint Intelligence Committee. D.C., Sept. 9, 2004. Rowley warned that counter-terrorism agents Rowley made use of this attention to raise awareness of the may be getting more information than they can sift through. (AP FBI’s systemic failings and to force the organization to correct Photo/Stephen J. Boitano)

O c t o b e r 2 0 0 5 313 inaction, unwieldy paperwork, tangled or to non-governmental organizations ers take to intimidate workers who bureaucracy, and what she saw as a “risk- (NGOs). Currently, Congress is debat- challenge the status quo include: job adverse culture.” Rowley’s whistleblowing whether or not to strengthen federal demotion, psychiatric evaluations, strip- ing contributed to a revamping of the whistleblower protections, particularly ping away security clearances (meaning intelligence community. She recently the Whistleblower Protection Act employees effectively lose their jobs), announced plans to run for Congress (WPA), which was originally passed in and transferring employees to new loca- and said the focus of her campaign will 1989 to better help these employees. tions. The whistleblower may be forced be on “ethical decisionmaking by gov- Since 9/11, the general public has to work in a hostile work environment ernment leaders.”2 had a heightened awareness of national and suffer physical threats or blacklist- Rowley chose to be public with her security issues. This, coupled with the ing, and other retaliatory acts. actions, but another famous whistle- public visibility of whistleblowers like Employees who go through the blower chose to be exceedingly anony- Coleen Rowley, has generated new dia- proper channels at work to report wrong- mous and was also very effective. This logue about whistleblowing and ethical doing are often faced with hostility and past summer it was revealed, to great dilemmas. Official whistleblower reports find they can only turn to someone out- public fanfare, that former FBI assistant in general are on the rise. According to side the agency to get problems fixed. director Mark Felt was the mysterious Public Employees for Environmental A survey taken in 2000 by the Merit “Deep Throat” informant. Felt’s work Responsibility, the number of official Systems Protection Board, which is an with Washington Post reporters Bob whistleblower reports has risen signifi- independent government agency cre- Woodward and Carl Bernstein helped cantly, from 380 in the year 2001 to ated to protect federal employees from spark investigations into the Watergate 535 in 2003. agency management abuses, found that break-in scandal that eventually forced 44 percent of the survey respondents President Richard Nixon to resign from Whistleblower Retaliation who had made formal disclosures of office. Many employers in the private and pub- wrongdoing experienced retaliation for These two cases were fairly unique: lic sector do not want to be confronted the disclosures. Only 4 percent of those most whistleblower cases do not receive with a whistleblower’s concerns. Coleen employees who did not make a formal media attention to the extent that Rowley observed in a 2004 Minnesota disclosure experienced retaliation. This Rowley’s and Deep Throat’s have. And Law and Politics article, “I’ve learned also suggests that many supervisors in not every whistleblower is allowed to the sad lesson that most organiza- federal agencies are unready to facili- make as much of an impact on the prob- tions are resistant to change and have tate an office atmosphere that is open lems they witness. The road to exposing a natural tendency to want to cover up to in-house dialogue about workers’ government errors or corruption is very problems and mistakes.” This organi- concerns. bumpy and very costly. zational mindset is troubling, primarily Outlining examples of the types of because it can endanger the organiza- negative reactions whistleblowers face, Introduction to Whistleblower Issues tion’s employees or the nation’s security. Elaine Kaplan, former head of the U.S. Thousands of federal workers, like The compulsion to cover up problems Office of Special Counsel, testified Rowley and Felt, play key roles in rather than to address them openly is in 2003 to the Senate Committee on achieving security for our nation. They understandable: nobody wants to admit Governmental Affairs: do so as translators and investigators they made mistakes or to have those This same scenario could play who handle sensitive intelligence, as mistakes scrutinized, especially when out in any number of contexts: officials who protect the safety and an agency’s budget or a manager’s career an inspector at the Nuclear security of our nuclear weapons labs is at stake. Addressing a whistleblower’s Regulatory Commission who suf- and power plants, as personnel who test concerns often means a supervisor must fers retaliation when he recom- the efficacy of airport baggage screening, admit to wrongdoing. Yet if agencies are mends that a nuclear power plant’s and in many other ways. truly to serve the public interest, they license be revoked for violating Although the vast majority of fed- would benefit from zooming in on a flaw safety regulations, an auditor who eral employees and officials work in the right away—without adding the hard- is denied promotions because he best interest of the public, instances of ship and drama of retaliating against found improprieties in a federal wrongdoing do occur, not only in ways whistleblowers. grant program, or an investigator that waste tax dollars, but also in ways When agencies retaliate against a in the Inspector General’s office that compromise national security and whistleblower, they are simply “shoot- who is geographically reassigned the public health. Many workers raise ing the messenger,” and this does more because he has reported mis- their concerns to unresponsive employ- harm than good. This is evident from the conduct by a high level agency ers and are then compelled to take many instances of whistleblower retali- official.3 those concerns to the press, Congress, ation. Some of the actions that employ-

S o c i a l E d u c a t i o n 314 This type of sad and dramatic out- his security clearance, effectively ending blower to meet a higher standard of come can be seen time and again in many the career of one of the best security proof than is required for prosecuting of the personal stories of whistleblow- analysts in DOE. In a November 2003 criminals. The 1999 case of Lachance v. ers. For example, FBI translator Sibel Vanity Fair article, Levernier said, “If White ruled that the WPA only protects Edmonds was fired in 2002 after report- I had to do this over again, I wouldn’t. employees who charge the government ing ineptitude and possible with misconduct and can back it espionage by a co-worker to her up with “irrefragable proof,” or supervisors. Congressional brief- proof that is impossible to refute.5 ings concerning Edmonds’s case This standard was not mandated were retroactively classified by by the original legislation or in the Department of Justice (DOJ), reports by Congress on the intent sealing her national security con- of the WPA. cerns from dialogue and correc- There are several other tion, despite a separate DOJ loopholes in the WPA. It does Inspector General report that not offer employees full pro- confirmed much of Edmonds’s tection from retaliation by their allegations. bosses. For example, employees The case of New York City are not protected by the WPA if police officer Frank Serpico, an employee reports wrongdo- made famous by a book and a ing to the boss or to someone in movie entitled Serpico, illus- the chain of command at work; trates that sometimes a whistle- if employees blow the whistle in blower faces life and death the course of their job duties—for situations for his actions. In the example, if they work as an audi- 1960s, Serpico became infamous tor or investigator of wrongdoing; among his colleagues for consis- or if the employee is not the first tently refusing to take bribes or one to report the problem. to turn a blind eye to corrup- As a result, an employee can- tion. In 1970, Serpico spoke out not simply take compelling, sub- publicly about the corruption he stantial evidence about potential witnessed, even testifying against health and security problems a former partner. In 1971, after to a supervisor and try to have many death threats, he was shot that person address it. Instead, Former New York undercover police officer Frank Serpico in the face during a drug bust listened during a panel discussion on police brutality on Jan. they must spend the time and that appears to have been a set- 29, 1998, in New York. (AP Photo/Bebeto Matthews) resources necessary to compile up. His fellow officers left him “irrefragable” evidence and then for dead, without calling for go outside their agency to get medical care. Serpico survived because When they took my security clearance, problems corrected. The Government an elderly man found him and called for it was like a scarlet letter was painted on Accountability Project found that just help. Serpico was the first police officer my forehead. It’s ruined my life.” 4 three years before Lachance v. White, in U.S. history to report, publicize and whistleblowers had a 36 percent suc- testify about the rampant corruption of Issues Right Now cess rate for decisions on their merits a police department, which included Most members of the federal employee made by the Merit Systems Protection millions of dollars in cop payoffs and community, including the Department Board. After Lachance, the success rate widespread abuse. of Homeland Security, rely on the dropped to 7 percent. In another case, Richard Levernier Whistleblower Protection Act (WPA) There are many federal employees worked for the Department of Energy for protection from retaliation when who are not permitted to receive any (DOE) for 22 years and was in charge of they work to get wrongdoing and abuse WPA protections. These employees testing security at U.S. nuclear weapons corrected. However there are several include those who work for the Defense facilities. Levernier tried for years to get loopholes in the WPA, and judicial Intelligence Agency, the Federal Bureau his supervisors to correct grave security decisions have undermined the level of of Investigations, the Transportation weaknesses that might allow terrorists protection employees receive. Security Association, and the National to detonate a nuclear device at one of For example, current judicial inter- Security Agency. These employees must the facilities. Levernier was stripped of pretations of the law require a whistle- rely entirely on their agency’s own inter-

O c t o b e r 2 0 0 5 315 Teaching Suggestions Discussion Questions:

Provide students the above article for background information. 1. Why do individuals decide to blow the whistle? Students should also read the following articles expressing 2. What are the larger, national ramifications of whistleblowing? Is differing perspectives on whistleblowers. Then, have students national security at stake? debate whether or not increased whistleblower protections 3. What are some possible results of whistleblowing (good and bad) in are beneficial. terms of legislation, government bureaucracy, etc.? Does it promote “good government?”

Positive: 4. What are the personal costs of whistleblowing? How could it affect Ratnesar, Romesh, and Michael Weisskopf, “How the FBI Blew relationships with work colleagues? Family? Could it affect your the Case,” Time, June 3, 2002, www.time.com/time/archive/pre- personal security, both financial and personal? view/0,10987,1101020603-250017,00.html 5. What would you do if you witnessed fraud or wrongdoing at school Gray, Geoffrey, “Code of Quiet: The Secret War on Whistleblowers,” or at work? Would you report it if you knew your grades, conduct The Village Voice, June 19-25, 2002, www.villagevoice.com/news/ record, or job security were at risk? 0225,gray,35781,1.html 6. How would you respond to a whistleblowing complaint if you were Negative: an employer? Gruber, Amelia, and Chris Strohm, “Don’t Blow It,” Government Executive, 7. States also have their own particular whistleblower protection November 14, 2003, www.govexec.com/dailyfed/1103/111403lb.htm legislation. With the guidance of your instructor, investigate and summarize what these protections are in your state and how effec- Shafer, Jack, “Why did Deep Throat Leak?” Slate, August 19, 2005, slate. tive they are. msn.com/id/2120148/ 8. What do you think of whistleblowers? Are they heroes or snitches?

Students can also track the progress of current whistleblower legislation at capwiz.com/govexec/issues/bills/?bill=7409391&size=full nal process for addressing whistleblower Federal Circuit Court of Appeals—the form of retaliation because employers concerns. This means that many fed- only court that currently has author- are allowed to remove security clear- eral employees can only seek redress ity to hear Whistleblower Protection ances without providing a reason, and for any retaliation they suffer from the Act appeals. The bill would also force without clearance, an employee cannot agency where it occurred. Proponents government agencies to educate their perform his or her job. If the clearance of enhanced whistleblower protections employees about their whistleblower is suspended or revoked, the employee see this as a conflict of interest. rights, how to make their concerns can be fired for not having the necessary known, and how to get them addressed, clearance required for that position. Pending Protections particularly when handling classified However, the House bill would also Last session, Congress debated the information. The bill ensures that any require the Government Accountability Federal Employee Protection of disclosure based on “reasonable belief” Office (GAO) to conduct a study on Disclosures Act (S.2628) in the Senate, of waste, fraud or abuse is protected all security clearance revocations about and the Whistleblower Protection under the law. It would also protect which employees had filed claims since Enhancement Act (H.R. 3281) in the those whistleblowers who are retaliated 1996. A previous version of the House House. The two pieces of legislation had against by having their security clear- bill included a controversial exemption great potential but, because of resistance ances revoked. from protections for national security from the Department of Justice, they fell The House version of the Federal personnel. Watchdog groups and whis- by the wayside. Now the 109th Congress Employee Protection of Disclosures Act tleblowers with the National Security has once again breathed new life into a (H.R. 3097) does not provide as much Whistleblowers Coalition alleged whistleblower protection bill, the Federal protection as would S. 494. For instance, that Government Reform Committee Employee Protection of Disclosures Act it does not offer due process rights to Chairman Tom Davis (R-VA) had sur- (S.494 and H.R. 3097). whistleblowers who have been stripped reptitiously included the homeland secu- The Senate version of the bill of their security clearance. Many whis- rity exemption in the previous bill, but a (S.494) would strengthen current law by tleblowers have security clearances spokesman from Davis’s office told the giving whistleblowers the opportunity snatched away by employers who want National Journal that the provision had to take their retaliation cases through a to retaliate against an employee for been there since the bill’s introduction multi-circuit court review for up to five blowing the whistle, and to make sure and that “the committee unanimously years, rather than relying solely on the they can’t do it again. This is an effective reported a bill with the same provision

S o c i a l E d u c a t i o n 316 during the 108th Congress.” The previ- munication between the management ous bill (H.R. 1317) received significant and employees of an agency, in which Resources: opposition from the minority leader- the opportunity to raise concerns and ship of the House Government Reform have them addressed is facilitated and Films: Committee and from employee unions, respected, would solve a great number Whistleblowing-themed films such which led Congressman Todd Platts (R- of these problems. It would also avoid as the following might help students PA) to introduce H.R. 3097 without the current situation where whistleblow- understand the personal side of blow- the controversial exemption. The bill ers find themselves having to go outside ing the whistle as well as its public and is currently in referral with the House the agency to get problems fixed. legislative impact: Committee on Government Reform, Some whistleblower advo- Silkwood, Serpico, The Insider, Erin awaiting markup. cates include NGOs such as the Brokovich, and All the President’s Men. Project On Government Oversight, Whistleblowing: Pros and Cons the Government Accountability There are some who do not support Project, Taxpayers Against Fraud, the Print and other resources: strengthening whistleblower protection National Whistleblower Center, and Rose, David, “An Inconvenient laws, saying whistleblowers are moti- Public Employees for Environmental Patriot,” Vanity Fair, September 2005. vated by profit and greed. Others, for Responsibility, to name a few. They example the Department of Justice, are believe whistleblowers are integral to Von Drehle, David, “FBI’s No. 2 Was concerned that disgruntled employees maintaining national security and ensur- ‘Deep Throat,’” The Washington Post, will be shielded under the new legisla- ing that the government works properly. June 1, 2005. tion. A 2003 article from Federal Human In their view, without employees who are www.washingtonpost.com/wp-dyn/content/ar- Resources Week discussed the 2003 ver- willing to draw agency or Congressional sion of the Federal Employee Protection attention to problems, those problems ticle/2005/05/31/AR2005053100655.html of Disclosures Act (S.1358) and cited the will go uncorrected. According to U.S. DOJ’s criticisms of increased whistle- Representative Edward Markey (D- Brian, Danielle, and Martin Edwin blower protections: “[R]ather than pro- MA), “These people [whistleblowers] Anderson, “Don’t Fault the Messenger,” mote and protect genuine disclosures of should be rewarded, not punished. ... The Washington Times, May 24, 2005. matters of real public concern, it would Instead these latter-day Paul Reveres www.washingtontimes.com/op-ed/20050523- provide a legal shield for unsatisfactory who patriotically serve their country are 093236-3354r.htm employees.” 6 punished. They’re blackballed, they go 7 Testifying against this same legisla- broke and their lives are ruined.” Strohm, Chris, “House Lawmakers tion, DOJ Assistant Attorney General Spar Over Whistleblower Protections,” Peter Keisler argued that the bill would Notes Government Executive, June 16, 2005. lead to inefficiencies in the management 1. Coleen Rowley’s FBI memo, www.coleenrowley. com/documents/MOUSSAOUI-letter.rtf; an edited ver- www.govexec.com/dailyfed/0605/061605c1.htm of federal employees; he also feared sion is available in “The Bombshell Memo,” Time that it would encourage employees to magazine, www.time.com/time/covers/1101020603/ memo.html. Whistleblower Protection Act of 1989 leak classified information without first 2. “Rowly Announces Congressional Bid,” Associated seeking approval from the appropriate Press (June 28, 2005). thomas.loc.gov/cgi-bin/query/z?c101:S.20. powers. 3. Testimony of Elaine Kaplan, former U.S. special counsel, before the Senate Committee on The Whistleblower Protection Act Governmental Affairs (November 12, 2003), hsgac. National Security Whistleblower Pro- seeks to protect a federal employee’s senate.gov/ (click on Hearings, then Witness tections: The Unfinished Agenda, right to speak up when he or she witness Testimony, and scroll to find Elaine Kaplan). 4. Mark Hertsgaard, “Nuclear Insecurity,” Vanity Fair, A Project On Government Oversight security, financial or other problems that November 2003. www.pogo.org/m/ep/ep-vanityfair- report 112003.pdf compromise the agency’s commitment to www.pogo.org/p/government/go-050402-whis- 5. Lachance v. White (http://laws.findlaw.com/ the public interest. An open line of com- fed/983249.html); Shawn Zeller, “Bill Would Protect tleblower.html Whistleblowers,” Government Executive (July 21 2004) www.govexec.com/dailyfed/0704/072104sz1. htm Lauren Robinson is a development associate at The Art of Anonymous Activism, a joint 6. “DOJ Opposes Broadened Whistleblower the Project On Government Oversight (www.pogo. Protections,” Federal Human Resources Week 10, guide by the Project On Government org), a Washington, D.C.-based nonprofit watchdog no. 32 (Dec 1, 2003). Oversight, the Government Account- group that works to expose corruption and promote 7. Stephen Losey, “Names Will be Named if Protections a more accountable federal government. Danni Aren’t Strengthened,” Federal Times (May 2, ability Project, and Public Employees Downing, POGO’s editor, and Beth Daley, POGO’s 2005). for Environmental Responsibility. communications director helped prepare and edit this www.pogo.org/p/government/ga-021101-whis- article. tleblower.html

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