Published by CQ Press, an Imprint of SAGE Publications, Inc. www.cqresearcher.com whistleblowers Is support growing for employees who expose misdeeds?

histleblowing is drawing increased attention as more workers in government and the private sector come forward to decry what they con - w tend are waste, fraud, abuse and illegal activi - ties in the workplace. Civil libertarians have derided President Obama for his tough approach to high-profile national security l eakers, such as former National Security Agency contractor Edward Snowden. But Obama has won praise for his efforts in areas relating to non- national security whistleblowing, including appointing an official who has strengthened the federal agency that represents govern - Thomas Drake and Jesselyn Radack paid high prices for whistleblowing. Drake, a former National Security ment whistleblowers. meanwhile, whistleblower advocates and na - Agency executive, lost his job after revealing cost overruns with an NSA spying program. Radack, a former Justice Department ethics adviser, received a tional security experts are debating whether Snowden and other negative performance review after revealing FBI ethics violations involving the interrogation of “American Taliban” John Walker Lindh. She is now a director at such leakers qualify as whistleblowers. Congress has passed several the Government Accountability Project, a whistleblower support group. laws relating to whistleblowing over the last 25 years, but experts question how well some are working. Advocates expect whistle - I blowing to become easier because of technological advances and THIS REPORT N to gain even more widespread public acceptance. THE ISSUES ...... 99 S BACKGROUND ...... 106 I CHRONOLOGY ...... 107 D CURRENT SITUATION ...... 110 E CQ Researcher • Jan. 31, 2014 • www.cqresearcher.com AT ISSUE ...... 113 Volume 24, Number 5 • Pages 97-120 OUTLOOK ...... 114 RECIPIENT Of SOCIETY Of PROfESSIONAL JOURNALISTS AwARD fOR BIBLIOGRAPHY ...... 118 EXCELLENCE N AmERICAN BAR ASSOCIATION SILvER GAvEL AwARD THE NEXT STEP ...... 119 wHISTLEBLOwERS

Jan. 31, 2014 THE ISSUES Whistleblowing on the Volume 24, Number 5 101 Rise • Are national security leakers SEC and Defense Department MANAGING EDITOR: Thomas J. Billitteri 99 whistleblowers? see tips increase. [email protected] • Are federal whistleblowers ASSISTANT MANAGING EDITOR: Kathy Koch , adequately protected? 102 Sen. Grassley: Patron Saint [email protected] • Are private-sector whistle - of Whistleblowers SENIOR CONTRIBUTING EDITOR: blowers adequately protected? “He’s the only true hope that Thomas J. Colin whistleblowers have.” [email protected] CONTRIBUTING WRITERS: marcia Clemmitt, BACKGROUND 107 Chronology Sarah Glazer, Kenneth Jost, Peter Katel , Key events since 1968. Reed Karaim, Barbara mantel, Tom Price, ‘Lincoln Law’ Jennifer weeks 106 Congress enacted the false Unique Group Defuses SENIOR PROJECT EDITOR: Olu B. Davis Claims Act in 1863. 108 Nuclear Whistleblower Cases FACT CHECKERS: michelle Harris, 109 Vietnam and Watergate Panel at Hanford facility in Nancie majkowski Disillusionment with the war washington state is model INTERN: Kaya Yurieff and Nixon administration for avoiding legal battles. fueled skepticism. Whistleblower Cases from Famous Whistleblowers 111 Doping to Medicare Fraud 110 Insiders disclosed wrongdoing Cases involve government during the 1990s. and private employees, in - cluding disgraced cyclist An Imprint of SAGE Publications, Inc. Lance Armstrong. VICE PRESIDENT AND EDITORIAL DIRECTOR, CURRENT SITUATION HIGHER EDUCATION GROUP: At Issue: michele Sordi Congressional Action 113 Can Edward Snowden be 110 EXECUTIVE DIRECTOR, ONLINE LIBRARY AND Bills would bolster protections. considered a whistleblower? REFERENCE PUBLISHING: Todd Baldwin State and Court Actions 112 States are broadening their FOR FURTHER RESEARCH whistleblower laws. Copyright © 2014 CQ Press, an Imprint of SAGE Pub - For More Information lications, Inc. SAGE reserves all copyright and other 117 Organizations to contact. rights herein, unless pre vi ous ly spec i fied in writing. OUTLOOK No part of this publication may be reproduced Bibliography electronically or otherwise, without prior written Contagious Courage? 118 Selected sources used. permission. Un au tho rized re pro duc tion or trans mis- 114 Technology is likely to en - sion of SAGE copy right ed material is a violation of courage whistleblowing. 119 The Next Step federal law car ry ing civil fines of up to $100,000. Additional articles . CQ Press is a registered trademark of Congressional Quarterly Inc. SIDEBARS AND GRAPHICS Citing CQ Researcher 119 Sample bibliography formats. CQ Researcher (ISSN 1056-2036) is printed on acid- Whistleblower Judgments free paper. Pub lished weekly, except: (march wk. 4) 100 Total $27 Billion (may wk. 4) (July wk. 1) (Aug. wks. 3, 4) (Nov. wk. more than half the amount 4) and (Dec. wks. 3, 4). Published by SAGE Publica - collected stemmed from tions, Inc., 2455 Teller Rd., Thousand Oaks, CA 91320. medical cases. Annual full-service subscriptions start at $1,054. for pricing, call 1-800-818-7243. To purchase a CQ Re - searcher report in print or electronic format (PDf), visit www.cqpress.com or call 866-427-7737. Single reports start at $15. Bulk purchase discounts and electronic-rights licensing are also available. Periodicals postage paid at Thousand Oaks, California, and at additional mailing offices . POST mAST ER: Send ad dress chang es to CQ Re search er , 2300 N St., N.w., Suite 800, Cover: Getty Images/ The Washington Post /Matt McClain wash ing ton, DC 20037.

98 CQ Researcher whistleblowers BY CHUCK MCCUTCHEON

moreover, a record $3.3 bil - THE ISSUES lion in taxpayer money was re - covered in 2012 due to civilian ears before National whistleblowers’ reports of fraud - Security Agency (NSA) ulent claims against the feder - Y contractor Edward al government, much of it due Snowden exposed details to health care fraud. Awards to about the agency’s question - whistleblowers for t heir revela - able spying activities last June, tions of wrongdoing also are whistleblower Thomas Drake on the rise. In 2012 whistle - did something similar — and blowers received a record high paid a stiff price. of nearly $560 million for their Drake, who was a senior help in uncovering fraud . 5 (See executive at the NSA, gave graph, p. 100. ) Under the false

information in 2005 and n Claims Act, whistleblowers re - a m l

2006 to a reporter regarding l ceive a portion of the money e G

cost overruns and other prob - recovered if their disclosures n o

lems with a controversial t result in confessions or con - r a

agency spying program. Al - B victions in federal fraud cases. / though in 2011 he won a s In October, the SEC awarded e g

legal battle over whether he a $14 million to an unidentified m I

broke the law, by then he y whistleblower for helping with t t

had lost his high-paying e an investigation. The agency G agency job, his security Former National Security Agency contractor previously had never paid clearance and his life sav - Edward Snowden touched off an intense debate over more than $125,000 in an in - ings. He now works at an whistleblowing when he leaked details of extensive dividual case. 6 NSA surveillance programs last year. Snowden is now in Apple computer store near Moscow, where he fled to avoid prosecution. Experts say whistleblowing washington, D.C. Whistleblowing by government and private-sector will continue to increase as Nevertheless, Drake says employees is on the rise, but the actions of Snowden technological advances make he’d do it all again. and other leakers have raised questions about whether it easier to go online to report “I could not idly stand by they qualify as whistleblowers or should be considered wrongdoing anonymously criminals. Congress has passed several laws over the silent and watch billions and past quarter-century aimed at encouraging whistleblowing, and as deepening skepticism billions of dollars going down but some experts question their effectiveness. toward government and cor - the drain,” he told an audi - porate behavior leads to greater ence at a September 2013 event orga - passed various laws over the past 25 public acceptance of the practice. “There nized by the Government Accountabil - years aimed at encouraging the prac - is a trend toward greater public sup - ity Project, a washington-based group tice, experts question their effectiveness. port for whistleblowing and a stronger advocating on behalf of those who ex - Yet whistleblowing is on the rise. sense that whistleblowers should be pose workplace wrongdoing. “we’re the The Securities and Exchange Commis - supported, rather than it just being as - canaries in the constitutional coal mine, sion (SEC) reported in November that sumed that they are always destined to we as whistleblowers.” 1 tips from corporate employees under suffer as martyrs,” says A. J. Brown, a whistleblowing is drawing increased the Dodd-frank financial industry re - public policy and law professor at Aus - attention in the wake of the Snowden form law’s whistleblower program had tralia’s Griffith University who studies revelations and as more government risen 8 percent from fiscal 2012 to fis - the issue in the United States. and private-sector employees come for - cal 2013. 2 And calls to the Defense Perhaps the two best-known em - ward to reveal what they contend are Department’s whistleblower hotline rock - ployees to reveal information about waste, fraud, abuse and illegal activities eted by 125 percent from 2009 to 2013, their employers are Snowden and Pfc. in the workplace. But Snowden and reaching a high of 31,000 contacts in Bradley manning, the Army soldier sen - other national security leakers have stirred 2012. 3 In michigan, whistleblower law - tenced in August 2013 to 35 years in debate about whether they qualify as suits rose 112 percent during a recent prison for providing classified govern - whistleblowers. And while Congress has eight-year period. 4 ment documents to the antisecrecy

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wards says. “They t alk to people who Whistleblower Judgments Total $27 Billion are senior executive service, and then Since Congress overhauled the 123-year-old False Claims Act in they talk to somebody who is support 1986, the federal government has collected more than $27 billion in staff.” Normally, in a bureaucracy, she says, “you usually only know what’s settlements and judgments against individuals and companies going on at your level.” whose fraudulent dealings with the government were exposed by Studies show that whistleblowers whistleblower-initiated lawsuits. More than half of that amount risk losing their jobs and income and stemmed from health-care related cases tied to soaring medical are susceptible to divorce and mental costs. Of the $27 billion that has been recovered, whistleblowers and physical problems. 11 At the group’s have been awarded about $4.3 billion. September whistleblower event, Drake recounted how fBI agents raided his (in $ millions) Total Collections and Awards home and carted off boxes of files $350 from Whistleblower Cases, 1987-2013 several years after he contacted a Bal - 300 timore Sun reporter to discuss cost 250 Collections (Total: $27.2 billion) overruns and other problems with NSA’s 200 Awards (Total: $4.3 billion) Trailblazer project, which was designed 150 to track people via cellphone and email. 100 It was subsequently canceled, but its 50 goal was similar to snooping programs the agency later developed and that 0 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005 2007 2009 2011 2013 Snowden revealed in 2013. 12 Drake says that although he never Source: “Fraud Statistics — Overview, Oct. 1, 1987-Sept. 30, 2013,” Civil Division, provided the reporter with any classi - U.S. Department of Justice, www.justice.gov/civil/docs_forms/C-FRAUDS_FCA_ Statistics.pdf fied or sensitive information, he was charged in 2010 with violating the Es - website wikiLeaks. Snowden revealed whistleblowers speak out to whomev - pionage Act and could have received that the NSA was amassing data on peo - er — the media, organizational man - a maximum prison term of 35 years. ple across the globe — including email, agers or congressional staffs — they A year later, the espionage charges facebook posts and instant messages feel can bring about change . 8 were dropped after a judge found no — as well as collecting in bulk the cus - In addition, say other experts, a whistle - evidence that any of the classified ma - tomer phone records of U.S. phone blower’s decision isn’t intended to cause terial recovered at his home was the companies. The day after the sentenc - harm to the organization but rather to basis for the Sun ’s articles. ing Pvt. manning expressed a desire to enable it to fix its problems . 9 “Imagine the government throwing live as a woman and changed her name whistleblowers generally are people everything they have at you because to Chelsea. who value fairness over loyalty, ac - you happen to hold up a mirror to But debate has raged over whether cording to studies. Those studies have them, literally just because I was try - national security leakers such as man - debunked the once-common percep - ing to do my job,” he says. “There are ning and Snowden qualify as whistle - tion that whistleblowers are disgruntled times that I wake up in a cold sweat.” blowers, reflecting an ongoing contro - employees with an ax to grind; one re - As for the current administration, versy over the correct definition of the searcher found that a typical whistle - civil libertarians have derided Presi - term. 7 The Government Accountabili - blower is someone who is firmly com - dent Obama for his tough approach ty Project, which uses a composite de - mitted to an organization and has a to national security leakers like man - finition based on state, federal and in - highly developed sense of morality. 10 ning and Snowden. Obama has used ternational cases, defines whistleblowing In addition, says Beatrice Edwards, the world war I-era Espionage Act as the disclosure of information that a the Government Accountability Pro - seven times to prosecute federal em - worker reasonably believes represents ject’s executive director, whistleblow - ployees for revealing information about evidence of illegality, gross waste or ers often share another trait: They’re government’s inner workings — more fraud, mismanagement, abuse of power, smokers who overhear a wide range than the four prosecuted under all pre - general wrongdoing or a substantial of office talk while standing outside vious administrations combined. 13 But and specific danger to public health during cigarette breaks. “They [de - government watchdog groups have and safety. Typically, the group says, velop] these vertical networks,” Ed - praised the president for his efforts in

100 CQ Researcher other areas relating to whistleblowing, on both sides of this issue view dis - including helping to steer into law in Whistleblowing on closures by national security employ - 2012 a bill to expand federal whistle - the Rise ees differently. blowers’ protections. Sterling was indicted in December As whistleblower advocates, em - Tips to the Securities and 2010 and arrested the following month ployees, lawmakers and the national Exchange Commission (SEC) on charges of providing New York Times security establishment debate whistle - about corporate wrongdoing reporter James Risen with information blowing, here are some of the ques - rose 8 percent from 2012 to about CIA efforts to sabotage Iran’s nu - tions under discussion: 2013 (top). Experts say the rise clear weapons program. The CIA had is due in part to the 2010 Dodd- fired Sterling, who is African-American, Are national security leakers Frank financial industry reform in 2002 after he filed a complaint al - whistleblowers? leging racial discrimination at the agency. law, which protects private - Supporters of national security leak - After two failed settlement attempts, he ers hail them as courageous civil ser - sector whistleblowers. Whistle - filed a discrimination lawsuit, but the vants — and, by extension, whistle - blower complaints also are on government said a court hearing on blowers — for their willingness to buck the rise at the Defense Depart - the case would reveal classified infor - the system and expose what they re - ment, where calls to a whistle - mation. A judge dismissed the case in gard as serious wrongdoing. blower hotline jumped 125 per- 2005, and the Supreme Court rejected One of Snowden’s most prominent cent from 2009 to 2013 (bottom). Sterling’s appeal the following year . 16 supporters is Daniel Ellsberg, who was “Jeffrey Sterling is not a whistleblower,” behind the release in 1971 of the Pen - Whistleblower Complaints says former Justice Department spokes man tagon Papers revealing that the U.S. gov - to the SEC matthew miller, who is now a partner in ernment secretly had enlarged the scope a management consulting firm. “He was of the vietnam war. He said Snowden fired for cause. He went to court and exposed the Obama administration’s the case was thrown out. No waste, fraud disregard for personal privacy. or abuse was involved.” “Snowden’s whistleblowing gives 3,238 But former Washington Post execu - us the possibility to roll back a key tive editor Leonard Downie Jr., in a part of what has amounted to an ‘ex - 2013 report for the Committee to Pro - 3,001 ecutive coup’ against the U.S. Consti - tect Journalists, called such a distinc - 14 tution,” wrote Ellsberg. Fiscal 2012 tion “disturbing.” further, he explained, But Obama administration officials Fiscal 2013 “Exposing ‘waste, fraud and abuse’ is and others in the national security world considered to be whistleblowing. But say anyone who releases classified or Calls to Defense Department exposing questionable governmental sensitive information that could poten - Whistleblower Hotline policies and actions, even if they could tially harm Americans’ security doesn’t be illegal or unconstitutional, is often deserve the description. considered to be leaking that must be “The definition of a whistleblower stopped and punished.” 17 depends on the context,” says Richard In the manning case, defense attor - moberly, associate dean of the Univer - 13,777 31,000 ney David Coombs disputed the gov - sity of Nebraska College of Law, who ernment’s assertion that the Army intelli - has written extensively about the issue. gence analyst was a traitor for passing “Outside of national security, we tend some 750,000 military and diplomatic to think [of it] very broadly — not only pages to wikiLeaks, which were subse - Fiscal 2009 illegal activity, but abuses of power, Fiscal 2013 quently published in The New York Times fraud, financial misconduct and even and other newspapers. manning was a unethical choices.” However, he adds, Sources: “2013 Annual Report to whistleblower who was “not seeking at - employees who are entrusted with clas - Congress on the Dodd-Frank Whistle - tention” for himself, said Coombs. 18 sified material “should be more limited blower Program,” U.S. Securities and manning’s supporters contend that in how and what to disclose.” 15 Exchange Commission, www.sec.gov/ the documents he turned over were far about/offices/owb/annual-report-2013. A case involving former CIA offi - pdf; U.S. Department of Defense more embarrassing than damaging to cer Jeffrey Sterling reveals how those national security. “How many civilian

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Sen. Grassley: Patron Saint of whistleblowers “He’s the only true hope that whistleblowers have.” or three decades, Iowa Republican Sen. Chuck Grassley whistleblower-related issues. has had a bipartisan reputation as the patron saint of “when he’s wanted to open an investigation during the time f whistleblowers. I’ve been chairman, I just say, ‘fine,’ ” Leahy said. “He has that Grassley has sponsored or cosponsored most major legisla - kind of credibility.” 4 tion on the issue, including the groundbreaking 1989 whistle - Grassley, who is the Judiciary Committee’s ranking Repub - blower Protection Act and the law’s enhancements in 1994 and lican, has several aides who work on whistleblower-related mat - 2012. Early in Barack Obama’s presidency, Grassley publicly ters. They field thousands of complaints each year from through - pressed Obama to hold a white House Rose Garden ceremo - out the federal bureaucracy. ny honoring those who risk their jobs to expose malfeasance, John Dodson, a special agent for the Bureau of Alcohol, To - and in July he got the Senate to pass a resolution establishing bacco, firearms and Explosives (ATf) worked with Grassley’s staff a “National whistleblower Day. ” when he blew the whistle on the “Operation fast and furious” “Anything we can do to uphold whistleblowers and their gun-tracing scandal, in which the agency lost track of hundreds protection is the right thing to keep government responsible,” of firearms sold to straw purchasers for mexican drug cartels. In Grassley said. “If you know laws are being violated and money’s October 2013, Grassley joined Rep. Darrell Issa, R-Calif., who being misspent, you have a patriotic duty to report it.” 1 chairs the House Oversight and Government Reform Committee, whistleblower advocates say Grassley has been instrumen - in condemning the ATf for seeking to block Dodson from pub - tal in making the activity more accepted both inside and out - lishing a book about the botched operation. The book, The Un - side government. In 2007, 25 public interest groups gave the armed Truth: My Fight to Blow the Whistle and Expose Fast and senator a lifetime achievement award. 2 Furious , was published in December . 5 former fBI agent Jane Turner said the senator has led many The Internal Revenue Service (IRS) has been another high- frustrated federal workers to turn to his office instead of sim - profile Grassley target. He complained in September that de - ply leaking information to the media. Turner worked with Grass - spite the IRS’ creation of a whistleblower office, the agency has ley on controversies such as bureau staffers’ thefts of a Tiffany dragged its heels processing cases and making financial re - crystal globe and other artifacts from Ground Zero after the wards to workers who report wrongdoing. 6 Sept. 11 terrorist attacks. Unlike many of his congressional colleagues, Grassley isn’t a “without Grassley, you would have tenfold more Snowdens lawyer; he’s a plain-spoken farmer from rural Iowa. Admirers say [and] wikileaks, because he’s the only true hope that whistle - that despite his years on Capitol Hill, he has remained closely blowers have,” Turner said, referring to former National Secu - attuned to voters’ demands for accountability from government. rity Agency contractor Edward Snowden. 3 “He has a good sense of the mind of a regular person,” Grassley’s efforts also have won him respect from Democ - says John mcmickle, a former Grassley aide who is now a rats such as vermont’s Patrick Leahy, chairman of the Senate washington attorney representing whistleblowers. Judiciary Committee. The two have combined on numerous Grassley has pressed Republican as well as Democratic pres i- deaths can actually be traced to the caused by any leaks, is irrelevant and Richard Haass, president of the wikiLeaks revelations? How many mili - therefore inadmissible in court. 20 Council on foreign Relations think tary deaths? To the best of anyone’s Snowden has sparked especially fierce tank, is among those siding with the knowledge, not a single one,” wrote debate as to what he should be called. intelligence community. “why is media Chase madar, author of a book on “One Silicon valley person I spoke to using sympathetic word ‘whistleblow - manning, in a blog post picked up by on the question of ‘whistleblower’ ver - er’ [for] Edward Snowden, who leaked the liberal Mother Jones magazine . 19 sus ‘traitor,’ his estimate was over 90 per - secret NSA program?” Haass asked on But national security leakers face a cent of the people in his company Twitter. “He broke the law & made serious legal handicap when trying to would say whistleblower,” said Georgia us less safe.” 22 raise such questions. The Espionage Act Tech professor Peter Swire, who served within days of the disclosures, The contains no whistleblower protection on a recent panel that Obama appoint - Associated Press stopped using that language, and federal prosecutors in cases ed to review NSA. “And I don’t think description for Snowden. The AP’s stan - involving manning and others have per - I’ve met a person in the intelligence dards editor, Tom Kent, wrote in a suaded the courts that the intent of the community who would say ‘whistle - memo that “whether the actions ex - leaker, along with the value of the leaks blower.’ This is one of the biggest left posed by Snowden and manning con - to the public and the lack of harm coast-right coast splits we’ve seen.” 21 stitute wrongdoing is hotly contested,

102 CQ Researcher s m a i l l i W

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Grassley’s involvement in whistleblowing started in 1983 dur - G Sen. Chuck Grassley, R-Iowa, has sponsored or ing the Reagan administration, when he wanted to talk to Pen - cosponsored most major whistleblower legislation, tagon budget analyst franklin C. “Chuck” Spinney, who was including the 1989 Whistleblower Protection Act. troubled about what he saw as wasteful military spending. But Defense Secretary Caspar weinberger rebuffed the senator. it is the demand by the grassroots of America for more trans - “weinberger called me and said, ‘we can’t have you talk to parency in government.” these civil servants. we Republicans can’t trust them,’ ” Grass - ley says. — Chuck McCutcheon The senator prevailed after threatening to subpoena Spinney to testify before the Senate Budget Committee’s defense sub - 1 Sharyn Jackson, “whistleblowers’ ‘Hero’ Pushes for Day in Their Honor,” committee. Not only did Spinney appear before the panel, he Des Moines Register/USA Today , July 29, 2013, www.usatoday.com/story/news/ landed on the cover of Time for his comments about billions nation/2013/07/29/grassley-national-whistleblowers-day/2595347. of dollars being wasted. The publicity helped launch a wide - 2 “25 whistleblower Advocacy Groups Present Senator Chuck Grassley with spread effort to rein in the military’s fiscal excesses that even - Lifetime Achievement Award,” National whistleblowers Center, may 17, 2007, www.whistleblowers.org/index.php?option=com_content&task=view&id=115. tually led to contracting reforms, and Spinney has been a wide - 3 Jackson, op. cit . 7 ly quoted expert about the issue ever since. 4 Thomas Beaumont, “As Political Landscape Shifts, Grassley Keeps Pace,” Des These days, Grassley is pessimistic that federal agencies will Moines Register , Oct. 30, 2010, www.desmoinesregister.com/article/20100314/ do more to encourage whistleblowing. Among his legislative NEwS09/101030016/?nclick_check=1. 5 Tal Kopan, “Darrell Issa, Chuck Grassley write ATf Over Book,” Politico , priorities is ensuring that private contractors for intelligence Oct. 10, 2013, www.politico.com/story/2013/10/darrell-issa-chuck-grassley-fast- agencies — such as Snowden — are no longer exempt from furious-book-98159.html. whistleblower-protection statutes. 6 Robert w. wood, “Grassley Blows whistle on IRS whistleblower Program,” “The agencies aren’t going to take any more steps, but we’re Forbes , Sept. 30, 2013, www.forbes.com/sites/robertwood/2013/09/30/grassley- blows-whistle-on-irs-whistleblower-program. going to pass more laws,” he says. “what’s going to really drive 7 “Chuck Spinney,” Time.com , http://nation.time.com/author/chuckspinney2. so we should not call them whistle - snooping program was unconstitution - the legal protections that are not avail - blowers on our own at this point.” 23 al. Wired ran an article with the head - able to national security employees. In a January online chat, Snowden line: “finally, a Ruling That Recognizes The provisions of the whistleblower said he initially went the internal whistle - Snowden as a whistleblower.” 25 Protection Enhancement Act, signed blowing route and “made tremendous Two weeks later, however, another into law in 2012 to strengthen feder - efforts to report these programs to cowork - U.S. district judge, william Pauley, ruled al whistleblowers’ rights, do not ex - ers, supervisors, and anyone with the that the NSA’s bulk collection of phone tend to the intelligence community. In proper clearance who would listen.” Their records under the USA Patriot Act was an effort to give workers at spy agen - reactions, he said, “ranged from deeply legal, which the anti-Snowden side saw cies some rights, Obama in October concerned to appalled, but no one was as vindication. 26 Then in January, Snow - 2012 issued an executive order en - willing to risk their jobs, families, and den’s backers were delighted when the couraging such workers to work with - possibly even freedom.” 24 Obama administration’s Privacy and Civil in the system or to go to Congress Some of Snowden’s supporters say Liberties Oversight Board said the rather than to leak information. 27 U.S. District Judge Richard Leon ap - NSA’s phone-records collection program But whistleblower advocates say peared to settle the issue when he ruled violates the law. the executive order lacks the force of last December that the NSA’s telephone The issue is further complicated by law and that private contractors who

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work for spy agencies — such as Snow - amining accusations brought against for 35 years, most federal employ - den — aren’t covered by it. the agency. “The question now isn’t ees have had the right to appeal to They say Obama confused the sit - how you rein in the NSA,” he said in the merit Systems Protection Board uation when he implied after the ini - November. “The object is, listen, are (mSPB), a quasijudicial agency com - tial NSA leaks that Snowden was pro - they following the law, are they pro - posed of three presidential appointees, tected under the order. white House tecting civil liberties? That’s what the if they have felt they inappropriately officials, however, have asserted that oversight committees do.” 32 have been fired or suspended or had contractors do have whistleblower pro - Snowden himself called for more their pay reduced. The Office of Special tections even if they are not explicitly protections for contractors. “There are Counsel (OSC), an independent feder - mentioned in the executive order. 28 so many holes in the laws, the pro - al agency that investigates whistle - To clear up the situation, an expert tections they afford are so weak, and blowing disclosures, defends whistle - panel that Obama formed in response the processes for reporting . . . so in - blowers against retaliatory personnel to the Snowden leaks recommended effective that they appear to be in - actions before the mSPB. 35 in December that a new board be cre - tended to discourage reporting of even whistleblower groups have criticized ated as “an authorized recipient for the clearest wrongdoing,” he said. 33 the board for being deaf to whistle - whistleblower complaints.” 29 blowers’ complaints. In fiscal 2010, the Sen. Chuck Grassley, R-Iowa, Con - Are federal whistleblowers ade - board’s administrative judges sided with gress’ leading advocate for whistle - quately protected? federal agencies over whistleblowers in blowers, says Snowden should be pros - Several federal laws, including the 95 percent of cases. That percentage has ecuted because he is accused of breaking 1989 whistleblower Protection Act, en - changed little in subsequent years. 36 the law. At the same time, he says, Con - courage U.S. government employees “I’m not sure [federal workers] get gress should pass “whistleblower pro - to report waste, fraud and abuse and adequate protection from the mSPB,” tection for intelligence people.” (See side - aim to shield those who come for - Grassley says. bar, p. 102. ) ward. But whistleblower advocates say In a 2012 law review article, Robert The Senate Intelligence Committee in federal workers still trail private-sector J. mcCarthy, a former federal govern - November passed a fiscal 2014 autho - employees in legal rights. ment lawyer and former law profes - rization bill that seeks to assist future “Compared to the laws that Congress sor at the University of washington would-be Snowdens. It would not give has enacted for the private sector, gov - and University of Idaho, attributed em - contractors the same protections from ernment employees are still second- ployees’ poor track record to “extremely retaliation as regular employees, but it class citizens,” says Tom Devine, the biased” judges who he said are “cut- would create incentives for contractors Government Accountability Project’s rate agency servants” lacking con - to take their concerns to “the appro - legal director, who has worked on gressionally mandated qualifications or priate inspector general of the employ - whistleblower issues since 1979. independence. 37 ing agency, a congressional intelligence Private-sector whistleblowers can sue The board rejects allegations of bias. committee or a member of a congres - their employers under a variety of laws, James m. Eisenmann, its executive di - sional intelligence committee.” 30 while their federal counterparts must go rector, says more than half of all cases The provision faces an uncertain fu - through a special administrative process. brought before administrative judges ture in the House, however, where In - Grassley says too many federal were dismissed in fiscal 2010 because telligence Committee Chairman mike agency managers have little willing - of a lack of jurisdiction, and that an - Rogers, R-mich., blocked similar lan - ness to settle workplace complaints or other 27 percent of cases were settled. guage in 2012. “we hope that given deal with those who bring them. Eisenmann also dismisses criticism of the recent high-profile leaks of classi - Grassley faults “the attitude of the bu - judges’ qualifications as “specious,” fied information, Chairman Rogers will reaucracy toward whistleblowers . . . adding that they “are held to high legal reconsider his position,” said Angela a culture throughout the executive standards” and that their decisions usu - Canterbury, director of public policy at branch of government that whistle - ally are upheld by federal courts. 38 the Project on Government Oversight, blowers are bad.” whistleblower advocacy groups also a washington-based group that inves - A 2010 survey on federal workers’ have criticized the Office of Special tigates government misconduct . 31 attitudes toward whistleblowing found Counsel. Its director under former Pres - Rogers has not commented pub - that the percentage of whistleblowers ident George w. Bush, Scott Bloch, was licly on the issue, but he has defended who felt they had been retaliated against forced to leave the agency in 2008 after the NSA’s surveillance efforts and said (36 percent) had not changed sub - allegations of retaliation against employees Congress does a serious job of ex - stantially since 1992. 34 who challenged him. Bloch denied the

104 CQ Researcher reprisal charges, but was sentenced in whistleblowers’ rights, and for the first Are private-sector whistleblowers June 2013 to two years’ probation and time entitled them to compensatory adequately protected? fined $5,000 after pleading guilty to hav - legal damages in cases of wrongful Corporate whistleblowing has drawn ing private technicians erase files from reprisal, although it does not give them substantial attention over the past 15 his government computer. 39 access to jury trials. years, and some whistleblowing ex - After Bloch’s departure, the office It also expanded protections for perts say private employees have had no permanent director until June federal scientists and officers in the never had better protections. But oth - 2011, when Carolyn Lerner was ap - Transportation Security Administration ers say the laws aren’t working as well pointed to the position. whistleblower (TSA), where some workers previous - as they should and that more needs advocates have praised Lerner’s efforts ly had lacked those rights, and for em - to be done. on behalf of whistleblowers, including successfully taking on the Defense De - partment last year over the mishan - dling of soldiers’ remains at Delaware’s Dover Air force Base. 40 while working with whistleblowers y r during the last two years, the OSC has a e L had record high numbers of so-called ’ O

l l favorable actions, such as the rehiring i B / of fired employees or the reprimand - t s ing of supervisors. for more than a o P

decade, the office had fewer than 100 n o t g

favorable actions a year, with a record n i h low of 29 in 2007. But it achieved 159 s a

favorable actions in 2012 and 160 W

41 e through the first 11 months of 2013 . h T /

Nevertheless, the agency’s 110-person s e g

staff has remained unchanged in recent a m I years, even as its workload and re - y t t

sponsibilities have grown. That has slowed e G its processing time for whistleblower An honor guard at Dover Air Force Base in Delaware carries the remains of an cases: In 2008, it processed 95 percent American soldier killed in an ambush in Afghanistan. Acting on tips from of its cases within eight months, but in whistleblowers, Air Force investigators in November 2011 announced they had 2013 that figure fell to 85 percent . 42 found “serious misconduct” and “gross mismanagement” in the handling of The OSC’s improved performance soldiers’ remains by mortuary workers at the base. Whistleblower advocates have praised Carolyn Lerner, director of the Office of Special Counsel, on favorable actions has tempered for her support of whistleblowers, including successfully taking on the whistleblower advocates’ criticism of Defense Department over the base’s treatment of soldiers’ remains. Obama, even as civil libertarians have condemned the president for being ployees who are not the first to dis - In 2002, two whistleblowers — for - too harsh on national security leakers. close a case of misconduct. It also mer Enron Corp. vice President Sher - “for non-national security/intelligence required federal agencies to create ron watkins and worldCom auditor community whistleblowers, [the situation] whistleblower ombudsmen at inspec - Cynthia Cooper — were named Time has dramatically improved,” said the Pro - tor general offices in the agencies to magazine’s “Persons of the Year” along ject on Government Oversight’s Canter - field employees’ complaints. 44 with fBI agent Coleen Rowley, who bury. “But for anyone making public dis - The law “was a major step forward” revealed fBI incompetence before the closures about national security/intelligence in bringing federal employees’ protec - Sept. 11, 2001, terrorist attacks. 45 wrongdoing, it is worse.” 43 tions closer to what most of the pri - Since then, Congress has enacted sev - whistleblower advocates also cred - vate sector has, says Stephen Kohn, a eral significant laws that address private- it Obama with helping to get the washington, D.C., lawyer who repre - sector whistleblowing, including: whistleblower Protection Enhancement sents whistleblowers and has written • The 2002 Sarbanes-Oxley Act, which Act adopted in November 2012. The several books on the subject. “we’re prohibits publicly traded companies and law strengthened and expanded not there yet, but we’re closer.” their subsidiaries from taking retalia tory

www.cqresearcher.com Jan. 31, 2014 105 wHISTLEBLOwERS

actions against employees who report braska’s moberly says has taken cor - that the provisions “have the potential to suspicious behavior. porate whistleblowing seriously despite be a real disaster for the tax system. I be - • T he 2008 Consumer Product Safe - the president’s crackdown on the na - lieve that it is unseemly in this country ty Act, which prohibits manufacturers from tional security side. to encourage people to turn in their neigh - discriminating against employees who re - “I think President Obama supports bors and employers to the IRS as con - port potential safety hazards to the Con - whistleblower protections in the pri - templated by this particular program.” sumer Product Safety Commission. vate sector very strongly and has ap - whistleblower lawyer Erika Kelton, who • The 2010 Dodd-frank wall Street po inted people who share those con - writes about the subject for Forbes , says Reform and Consumer Protection Act, cerns. . . . whistleblower protections in Korb’s comments “reflect a mindset at the which expanded protections for whistle - the private sector don’t interfere with IRS that for some has gone unchanged blowers in the financial services industry. executive power,” moberly says . 51 despite the substantial and time-tested • The 2011 food and Drug Admin - U.S. whistleblower laws differ from success of whistleblower programs.” 54 istration food Safety modernization Act, those of other nations by offering gov - Others say the penalties private com - which bars the food industry from dis - ernment-sponsored rewards in cases in panies face for retaliating against criminating against workers who assist the which the federal government is de - whistleblowing employees aren’t strin - agency on safety-related investigations. 46 frauded. In addition to the false Claims gent enough. “In the United States we think of our Act, a law enacted in 2006 pays whistle - Tom Carpenter, executive director laws as being older and more staid, but blowers who expose companies found of Hanford Challenge, a nonprofit group the decade beginning this century has guilty of trying to cheat the Internal monitoring washington state’s Hanford been the most active I can think of, par - Revenue Service (IRS) out of substan - nuclear weapons site, says the model ticularly in the private-sector area,” says tial amounts of income-tax money. 52 of the Nuclear Regulatory Commission American University law professor Robert In 2012, the IRS awarded $104 mil - (NRC) should be imitated when pub - vaughn, who studies whistleblowing. lion to former banking executive Bradley lic health and safety are involved. Companies periodically have tried Birkenfeld, who exposed tax evasion The NRC’s regulations empower the to blunt the impact of the new laws. by Swiss banking company UBS AG. agency to criminally prosecute electric for example, the U.S. Chamber of Com - The company had paid $780 million utilities for discriminating against whistle - merce in 2011 backed a bill sponsored three years earlier to avoid criminal blowers. The agency also can impose by House Republicans that would prosecution. The Birkenfeld award was civil penalties and revoke the utilities’ have required financial whistleblowers the most ever granted to an individual license to operate a nuclear plant. 55 to report criminal activity internally in in a whistleblower case . 53 The award “That’s the kind of message that addition to filing a complaint with the came less than two months after Birken - needs to be sent to protect whistle - SEC. 47 The chamber and its allies in feld’s parole from prison, where he blowers if we’re really serious about the business community were concerned served time after pleading guilty to protecting them,” says Carpenter, a that whistleblowers would go directly helping a client evade income taxes. member of the Hanford Concerns Coun - outside the company to report suspi - “The U.S. has had the biggest suc - cil, a whistleblower mediation group. cious activity. 48 Bill sponsor Rep. michael cess in creating financial-reward strate - (See sidebar, p. 108. ) “what I see is Grimm, R-N.Y., said the legislation would gies for whistleblowers,” Griffith Uni - that whistleblower protection laws don’t maintain corporate whistleblower re - versity’s Brown says, explaining that the work. They’re too weak and insuffi - porting processes that the Dodd-frank reward money comes from “a percent - cient to provide any protection.” law sought to dismantle. age of the value of the fraud or the “The overreaching provisions in penalties imposed for wrongdoing.” Dodd-frank make these internal pro - To receive any money, “you have to grams obsolete, open the floodgates of be correct,” says Kohn, who represented BACKGROUND claims to an already overburdened SEC Birkenfield. “So it forces the whistle - and delay action on escalating crimes blower to carefully evaluate the merits within a company,” Grimm said. 49 of their concerns in deciding whether But whistleblower advocates ar - to take the risk of going forward.” ‘Lincoln Law’ gued that the bill undermined Dodd- However, whistleblower advocates frank. 50 The bill died in the 112th lament the institutional resistance that or a century-and-a-half, whistle - Congress and has not resurfaced. such programs have faced. f blowers have owed a debt to The advocates have had an ally in In 2010, former IRS Chief Counsel Don - Abraham Lincoln. Obama, whom the University of Ne - ald Korb told the publication Tax Notes Continued on p. 108

106 CQ Researcher Chronology

2005 1960s-1970s 1990s New generation Army Corps of Engineers demotes Whistleblowers reveal govern - of whistleblowers reveals sensa - contract specialist Bunnatine H. ment misdeeds during Vietnam tional corporate and govern - Greenhouse after she complains of War and Watergate scandal. ment wrongdoing. irregularities in Iraq war contracts; she later wins a settlement of nearly 1968 1992 $1 million. . . . U.S. Supreme Court Pentagon fires A. Ernest fitzgerald Congress halts mental health exams refuses to hear appeal of dismissal for revealing cost overruns in devel - for military whistleblowers and re - of fBI whistleblower Sibel Edmonds , oping the C-5A military transport stores cash awards to whistleblowers who accused colleagues of covering plane. He is reinstated in 1982. who save the government money. up illicit activity.

1971 1994 2006 Consumer advocate Ralph Nader Congress strengthens wPA, allow - wikiLeaks becomes a prominent calls for whistleblower protection. ing whistleblowers to challenge online publisher of classified infor - agency decisions to alter their mation. . . . Supreme Court rules 1973 working conditions or order them in Garcetti v. Ceballos that public fBI Associate Director w. mark felt to undergo psychiatric testing. employees have no first Amend - (dubbed “Deep Throat”) secretly ment protection for speech com - provides key information about 1995 municated on the job. watergate scandal to Washington former tobacco-industry scientist Post. . . . Charges dropped against Je ffrey wigand reveals a decades-long 2010 former Pentagon analyst Daniel cover-up of smoking hazards by Army intelligence analyst Pfc. Ellsberg for leaking Pentagon Papers, Brown & williamson Tobacco Corp. Bradley manning is arrested after a top-secret history of the vietnam leaking hundreds of thousands of war, to The New York Times. 1997 documents to wikiLeaks. Internal Revenue Service auditor 1978 Jennifer Long tells Congress the IRS 2012 Congress passes first whistleblower targets lower-income taxpayers for Congress passes and President law, the Civil Service Reform Act. audits because they are seen as Obama signs into law the whistle - easy targets. . . . A federal judge in blower Protection Enhancement • Houston rules the false Claims Act Act affording government whistle - unconstitutional; Supreme Court blowers greater protections. later overturns the decision. 1980s Congress 2013 strengthens whistleblower laws. • National Security Agency contractor Edward Snowden ignites huge na - 1986 tional security controversy by leak - Congress overhauls 1863 false 2000s National security ing details of NSA’s surveillance Claims Act, increasing whistleblow - whistleblowers face retaliation. programs. . . . U.S. District Judge ers’ shares of reward money. Richard Leon rules that the NSA’s 2002 telephone data-collection program is 1987 fBI agent Colleen Rowley reveals unconstitutional, but U.S. District Congress passes whistleblower Pro - fBI’s pre-9/11 incompetence. . . . Judge william Pauley rules that it is tection Act (wPA), but Republican Congress passes Sarbanes-Oxley legal under the USA Patriot Act. President Ronald Reagan vetoes it Act, containing numerous provisions the next year, contending it would to protect corporate whistleblowers. 2014 merely aid the disgruntled. Responding to calls from The New 2004 York Times and other newspapers 1989 Army Sgt. Samuel A. Provance is re - to offer clemency to Snowden, President George H. w. Bush signs duced in rank after revealing abuses President Obama says he does not a toned-down version of the wPA. at Abu Ghraib prison in Iraq. “have a yes/no answer.”

www.cqresearcher.com Jan. 31, 2014 107 wHISTLEBLOwERS

Unique Group Defuses Nuclear whistleblower Cases Panel at Hanford facility is model for avoiding legal battles.

hen the huge Hanford nuclear materials production fa - The council “is a unique thing, and it has elements that could cility in washington state faced a rash of whistleblow - be really useful for both protecting dissent and improving work - w er lawsuits and allegations of worker retaliation in the place and public health and safety,” Carpenter says. “It’s good early 1990s, officials at the site set up a special mediation group. for companies, too, because they get their problems pointed out The unit has been so successful that its members now see early and get insulated from lawsuits and bad publicity.” it as a potential model to others who want to address whistle - The local Tri-City Herald praised the council in a 2010 ed - blowers’ concerns without fighting in court. itorial: “If even one lawsuit was avoided . . . then the council The Hanford Concerns Council has resolved all of the rough - has proved its worth.” 3 ly 140 cases it has accepted, says Jonathan Brock, the group’s Once the council issues its findings, the president of the chairman. That figure represents about half the total number company responsible for the original complaint must act on it of cases it has received; council members reject cases in which unless he can prove the findings are illegal or would violate they either lack jurisdiction or that they feel can be addressed the firm’s contract. “If we didn’t have that, there wouldn’t be more effectively in other ways. a council,” Carpenter says. “The president would say, ‘Thank Brock recently published an academic article explaining why you very much, I’m not going to waste my time with this.’” other entities should consider copying the council. The council played a key role in resolving a long-standing “In most instances, the Hanford Council system not only ad - dispute over Hanford workers’ exposure to toxic chemical va - dresses retaliation against employees who have blown the whis - pors, which had sparked many whistleblower complaints. To tle, but also addresses underlying safety systems issues, poli - evaluate the level of the exposures, it hired an independent cies, management practices and often, relationship and cultural expert panel, which issued a report in 2008. 4 issues contributing to the misunderstandings and behaviors in Over the longer term, Carpenter says, the group has fos - the workplace that spawned the original problem or dispute,” tered cooperation among people who normally would be ad - Brock, a retired University of washington public affairs profes - versaries. sor, wrote. 1 To deal with retaliation while a case is being “Some of these managers [on the council] who I wouldn’t have heard, the council often recommends reassigning workers as given the time of day, I now consider my friends. we’ve devel - well as postponing job evaluations or threatened firings. oped bonds of trust,” he says. That’s a very unusual thing to have That approach is broader in scope than most mediation ef - happen. In the past it was, ‘They hate me; I hate them.’ ” forts, which typically focus on providing a financial reward to the whistleblower. “In our system, the whistleblower can get — Chuck McCutcheon [the underlying problem] addressed or fixed,” Brock says. Tom Carpenter, a founding member of the council, agreed 1 Jonathan Brock, “filling in the Holes in whistleblower Protection Systems: Lessons from the Hanford Council Experience,” Seattle Journal for Social that it should be duplicated elsewhere. Carpenter is executive Justice 11:2 , Dec. 1, 2013, digitalcommons.law.seattleu.edu/sjsj/vol11/iss2/6. director of Hanford Challenge, a nonprofit group monitoring 2 “Nuclear Safety Division,” Oregon.gov, www.oregon.gov/ENERGY/NUCSAf/ environmental, health and safety issues at Hanford. Pages/nucsafe.aspx. Hanford was set up in 1943 as part of the manhattan Project 3 “Hanford Concerns Council Needs more Participants,” Tri-City Herald , to process plutonium for the first atomic bomb. The 586-square- march 24, 2010. 4 “Hanford Council Releases Expert Panel Review of Toxic Chemical vapor mile complex was mostly decommissioned at the end of the Cold Report,” news release, Hanford Challenge, Sept. 29, 2008, www.hanford war and is now the country’s largest environmental cleanup site. 2 challenge.org/cmsAdmin/uploads/2008_09_29_Independent_Review_vapor.pdf.

Continued from p. 106 1863 enacted the false Claims Act, Although the false Claims Act was a During the Civil war, shady mili - known as the “Lincoln Law.” It au - landmark law, it focused only on private tary contractors sold the Union Army thorized civil servants and citizens to contractors’ abuses, not government wrong - gunpowder that had been cut with sue those cheating the government doing. Two subsequent presidents, sawdust, as well as other unusable and share any money the government Theodore Roosevelt and william Howard supplies. But the government lacked recovered. The law contained qui tam Taft, issued executive orders threatening the resources to detect the fraud, and provisions, short for the Latin phrase to fire any federal workers who sought even if the wrongdoing was spotted “qui tam pro domino rege quam pro to contact Congress on their own to re - it was often impossible to find the cul - se ipso in hac parte sequitur ,” which port wrongdoing. Congress responded in prit or obtain damages. 56 translates as “he who brings an action 1912 by passing the Lloyd-Lafollette Act, At Lincoln’s request, Congress in for the king as well as for himself.” 57 which barred the firing of employees who

108 CQ Researcher approached the legislative branch . 58 count, the charge that he had violat - In recent years, the government has The term “whistleblower,” which had ed the Espionage Act was dropped recovered more than $2 billion a year described British police — “bobbies” — after government agents were found from whistleblower-initiated suits under who blew whistles when they saw to have illegally tapped his phone. 62 the false Claims Act, much of that due crimes in progress, became part of the The political operatives who had to health-care fraud cases, in which the American lexicon in the early 20th cen - monitored Ellsberg’s calls and broke numbers have risen as health costs have tury. Wall Street Journal language colum - into his psychiatrist’s office in search climbed. more than $18 billion of the $27 nist Ben Zimmer wrote that by the 1930s of damaging information later became billion recovered under the act between the term evolved into a sinister synonym infamous when they were caught break - 1986 and 2010 came from health-care re - for a squealer, citing New York sports - ing into the Democratic National Com - lated cases, according to a 2011 study. 67 writer Jack miley’s condemnation of mittee’s offices at the watergate Hotel The popularity of the false Claims wrestling promoter Jacob Pfefer for ex - in washington. Another famous whistle - Act has spread to states and even some posing the sport’s f akery: “Jake is a blower from the Nixon era was fBI cities. more than half of states have whistle -blower, which is unforgivable. ” 59 Associate Director w. mark felt, who enacted their own versions, as have In the 1960s, consumer activist Ralph anonymously provided key information cities such as New York, Chicago and Nader gained widespread attention with about the watergate scandal to The the District of Columbia. 68 his investigations into corporate malfea - Washington Post under the pseudonym meanwhile, would-be federal employee sance. “The willingness and ability of in - “Deep Throat” and managed to keep whistleblowers often lack monetary in - siders to blow the whistle is the last line his identity a secret until three years centives to step forward and fear losing of defense ordinary citizens have against before his death in 2008. 63 their jobs and security clearances. Law - the denial of their rights and the de - Other prominent whistleblowers dur - makers have tried to deal with their re - struction of their interests by secretive and ing the 1970s included New York po - luctance: In 1987 Congress passed the powerful institutions,” Nader wrote. 60 lice officer frank Serpico, who exposed whistleblower Protection Act (wPA), corruption within the department, and which aimed to authorize the Office of Karen Silkwood, a technician at Okla - Special Counsel to appeal merit Systems Vietnam and Watergate homa’s Kerr-mcGee plutonium fuel pro - Protection Board decisions in federal court duction plant, who was gathering evi - and make it easier for workers to claim he late 1960s and early ’70s were dence about the plant’s negligence in they were victims of retaliation. But Rea - T an active period for whistleblowing, maintaining safety when she was killed gan vetoed the measure, contending it as disillusionment with the vietnam war in a mysterious car accident. 64 would let undeserving employees avoid fueled the public’s skepticism of gov - Such incidents helped to create a being punished. Congress responded the ernment and the military in particular. pro- whistleblower public mood. Con - following the year by passing a stripped- Pentagon auditor A. Ernest fitzgerald gress responded in 1978 by passing the down version that removed the OSC’s in 1968 reported a $2.3 billion cost over - Civil Service Reform Act, which creat - appeal power; President George H. w. run in the Lockheed C-5 aircraft pro - ed the merit Systems Protection Board Bush signed it into law. 69 gram and testified before the Joint Eco - and Office of Special Counsel. But dur - Although the whistleblower Protec - nomic Committee. fitzgerald was fired, ing the administration of Republican tion Act has been employed frequently reportedly on the orders of President President Ronald Reagan, federal work - since then, experts question its effec - Richard m. Nixon, but was later rein - ers remained afraid of reprisals. The tiveness. A 2013 study showed that fed - stated. The following year, ex-Army he - percentage of employees who said in eral agencies won nearly four-fifths of licopter gunner Ron Ridenhour wrote a anonymous surveys that they kept quiet the 151 wPA cases appealed to federal letter to Congress and the Pentagon de - about official misconduct doubled be - court. And in 142 cases involving gov - scribing the horrific 1968 events at my tween 1980 and 1983 . 65 ernment ethics and administration issues, Lai in vietnam, including the torture, sex - In 1986 Congress overhauled the employees again lost nearly four-fifths ual abuse, mutilation and mass murder 123-year-old false Claims Act. The re - of the time, and lost three-quarters of of hundreds of unarmed civilians. 61 vised law increased the size of whistle - the cases involving national security. But neither fitzgerald nor Riden - blowers’ reward monies, eased certain “The results lead to the conclusion hour achieved the stature of Ellsberg, restrictions for filing an action and pro - that either the wPA as written or the the defense analyst who in 1971 vided a separate legal cause of action manner in which courts are interpreting leaked the Pentagon Papers. Although for those who contended they had the wPA is not consistent with the in - Ellsberg was arrested weeks after The been discriminated against as a result tent of the legislation — to protect em - New York Times published the ac - of their whistleblowing activities. 66 ployees,” said the study, which appeared

www.cqresearcher.com Jan. 31, 2014 109 wHISTLEBLOwERS

in the journal Review of Public Personnel helped drive the telecommunications and government-related disclosures even Administration . 70 giant into bankruptcy. 74 before it published secret documents Congress amended the law in 1994 Congress’ response to the scandals stolen by manning. 79 At the same time, in an effort to close loopholes. The was Sarbanes-Oxley, the most sweep - the wars in Iraq and Afghanistan prompt - changes allowed whistleblowers to chal - ing investor-protection measure adopt - ed allegations of financial misdeeds. lenge agency moves seen as retalia - ed since the Great Depression. The law for instance, Army Corps of Engi - tory, such as changing their working included several measures that dealt neers contracts supervisor Bunnatine conditions or ordering them to under - with private-sector whistleblowing, in - H. Greenhouse raised questions about go psychological testing. 71 cluding an anti-retaliation provision. contracting irregularities in a series of whistleblower advocates hailed billion -dollar contracts awarded to a sub - Sarbanes -Oxley as a watershed measure, sidiary of energy giant Halliburton Co. Famous Whistleblowers and some of its anti-retaliatory language She was demoted for allegedly poor job has appeared in subsequent statutes. 75 performance in 2005 and contested the ut perceived weaknesses in In addition, Sarbanes-Oxley has spurred action. In a 2011 settlement, the Corps B whistleblower laws did not prevent the corporate world to act on its own: agreed to pay her nearly $1 million. 80 a wave of corporate and government in - A 2010 study by financial giant KPmG But the U.S. Supreme Court dealt siders from stepping forward in numer - found that 87 percent of U.S. companies whistleblowers what advocates called ous high-profile cases during the 1990s. have whistleblower mechanisms in place, a massive setback in 2006. In Garcetti They included Jeffrey wigand, the such as a hotline or an ombudsman, up v. Ceballos , the court ruled that pub - highest-ranking executive to turn against from 75 percent in 2008. 76 lic employees had no first Amend - the tobacco industry. wigand, the for - In a 2012 analysis of Sarbanes-Oxley, ment protection for speech communi - mer vice president for research and de - however, the University of Nebraska’s cated as part of their job duties. 81 velopment for the Brown & williamson moberly said the measure “often failed The decision fueled Congress’ ef - tobacco company, disclosed that the com - to protect [employees] from reprisals forts in 2012 to pass the bipartisan pany misled consumers about how ad - and failed to compensate them consis - whistleblower Protection Enhancement dictive and hazardous cigarettes are and tently for the retaliation they suffered.” Act, which whistleblower advocates conspired to hide and quash research He noted that despite the added legal hailed for overriding Garcetti. 82 about the health effects of smoking. protections available to financial indus - Another was mark whitacre, an exec - try employees, whistleblowers did not utive at the Archer Daniels midland con - play a significant role in exposing the glomerate who became an fBI informant financial crisis of 2007-2008. CURRENT in an investigation of price fixing at the “These related failures indicate that al - company. At the same time, whitacre was though whistleblowers had stronger and embezzling from the company and even - more prevalent protection than ever be - SITUATION tually was caught and served an eight- fore, they had less reason to believe such and-a-half-year prison term. 72 protection works,” he concluded . 77 Congressional Action Like Serpico and Silkwood, the sto - for all of the emphasis given to pri - ries of wigand and whitacre became vate-sector exposures of wrongdoing, ongress, the Obama administration, the subjects of major Hollywood films national-security leaks have drawn sub - C state governments and federal courts (“The Insider” starring Russell Crowe stantially more attention in the years are working to put more teeth into ex - and “The Informant!” starring matt since the Sept. 11, 2001, terrorist attacks. isting whistleblower protection laws or ex - Damon, respectively), giving the cases The fBI’s Rowley documented the panding existing protections into new areas. even more public attention. failures of bureau officials in washing - for example, the fiscal 2014 Defense In the early 2000s the Enron and ton to act on information provided by Department authorization bill aims to worldCom scandals sparked deep pub - the minneapolis field office regarding sus - overhaul the 1988 military whistleblower lic outrage toward corporate behavior. pected terrorist Zacarias moussaoui. Both Protection Act governing the reporting watkins, Enron’s vice president of cor - the 9/11 commission that investigated the of abuses in the armed services. porate development, warned CEO Ken - attacks and the Justice Department’s in - Lawmakers say service members have neth Lay in 2001 that the firm faced spector general called that failure a sig - had difficulty in exposing wrongdoing financial collapse. 73 meanwhile, world - nificant missed opportunity. 78 compared to their civilian counterparts, Com auditor Cooper’s accounts in wikiLeaks, launched in 2006, became in part because of the military’s cul - 2002 of phony accounting practices a forum for several damaging corporate ture. “Too often, these complaints get

110 CQ Researcher whistleblower Cases from Doping to medicare fraud Cases involve private and government employees. everal recent high-profile cases have involved both private- uses and gave kickbacks to doctors and nursing homes. 4 and public-sector employees and have revealed — among • The SEC in October awarded $14 million to an unidentified S other things — wrongdoing in professional sports and whistleblower for helping the agency with an investigation that investor fraud. for example: helped recover “substantial” investor funds. The agency previous - • Disgraced cyclist Lance Armstrong is the target of a whistle - ly had never paid more than $125,000 in an individual case . 5 blower lawsuit in which his former teammate floyd Landis — • The Justice Department said in January it had joined eight joined by the Justice Department — is suing Armstrong under separate whistleblower lawsuits in six states against Health man - the false Claims Act, which allows U.S. citizens to sue any en - agement Associates, a florida-based, for-profit hospital chain tity for defrauding the government. Landis, who is seeking up accused of scheming to increase hospital admissions so that it to $120 million, claims Armstrong’s illegal doping defrauded could inflate payments from medicare and medicaid. 6 the U.S. Postal Service, which sponsored their racing team. 1 • whistleblowers at the Secret Service told Senate investi - — Chuck McCutcheon gators in 2013 that agents and managers had engaged in sex - ual misconduct and other improprieties, revelations that came 1 Liz Clarke, “Lance Armstrong whistleblower Suit motion for Dismissal Goes to light after several Secret Service agents the year before were to Judge,” The Washington Post , Nov. 18, 2013. accused of hiring prostitutes in Colombia. 2 2 Carol D. Leonnig and David Nakamaura, “whistleblowers Tell Senate Panel of Alleged Sexual misconduct by Secret Service Agents,” The Washington Post , • The testimony of seven Department of Homeland Security Nov. 14, 2013. (DHS) whistleblowers served as the basis of an October 2013 3 Emily wax-Thibodeau, “Homeland Security workers Routinely Boost Pay report that disclosed widespread misuse of overtime pay in six with Unearned Overtime, Report Says,” The Washington Post , Oct. 31, 2013. DHS offices. 3 4 Gregory wallace, “$168 million Payout to Johnson & Johnson whistleblowers,” • The Justice Department in November awarded more than CNN.com, Nov. 4, 2013. 5 Gregory wallace, “whistleblower Awarded $14 million, SEC’s Largest Ever,” $167 million to an unspecified number of whistleblowers in three CNN.com, Oct. 1, 2013. states as part of a settlement with Johnson & Johnson over alle - 6 Julie Creswell and Reed Abelson, “Hospital Chain Said to Scheme to Inflate gations the pharmaceutical giant marketed drugs for unapproved Bills,” The New York Times , Jan. 23, 2014.

tossed into the garbage for no good after reporting wrongdoing to the de - ers without access to classified mate - reason,” said Sen. Grassley, who was partment. It allows employees who say rial could pose a security threat and one of the lawmakers who worked to they are retaliation victims to file com - thus could not appear before the board. insert the provisions into the defense plaints with the secretary of Labor and The Office of Special Counsel’s Lern - law. “Retaliation seems to be the norm provides for those employees to be re - er warned that the decision is “a sig - rather than the exception.” 83 instated to their former status if the sec - nificant threat to whistleblower pro - The new provisions expand the statute retary finds in their favor. 85 tection for hundreds of thousands of of limitations for military whistleblower Another bipartisan bill, introduced federal employees in sensitive posi - claims, expand protections against sex - in December by Sen. Jon Tester, D- tions and may chill civil servants from ual harassment and give service mem - mont., and cosponsored by Grassley blowing the whistle.” 87 bers the right to an administrative hear - and Sen. Claire mcCaskill, D-mo., would Because of the added protections ing if they are unsatisfied by an office clarify the right of employees desig - to federal workers provided in the of inspector general action. 84 nated as “national-security sensitive” whistleblower Protection Enhancement The Senate in November passed a — a prerequisite to getting a security Act, Lerner said in December 2013 that bipartisan bill sponsored by Grassley clearance — to seek reviews before her agency’s caseload “has really gone and Senate Judiciary Committee Chair - the merit Systems Protection Board. 86 through the roof.” 88 Her request for man Patrick Leahy, D-vt., aimed at pre - The bill addresses an issue raised an additional $1.7 million for the OSC venting retaliation against employees who in an August ruling by the U.S. Court became part of a fiscal 2014 catchall report criminal price-fixing to the Jus - of Appeals for the federal Circuit in - spending bill that Obama signed into tice Department. The legislation stemmed volving two Pentagon employees found law in January, enabling Lerner to hire from a 2011 Government Accountabili - ineligible to hold national-security sen - an additional 11 employees. 89 ty Office report that said whistleblowers sitive jobs. The court ruled in Kaplan In response to the Snowden contro - in such situations had no legal recourse v. Conyers that even low-level work - versy, the Senate Intelligence Committee

www.cqresearcher.com Jan. 31, 2014 111 wHISTLEBLOwERS

in November approved a fiscal 2014 in the Democratic-controlled Senate. California also expanded the state’s intelligence authorization bill that would Democrats traditionally are union sup - whistleblower law. Previously, the law extend whistleblower protections to porters and are highly unlikely to take had prohibited employers from retali - employees of spy agencies — but its up legislation that would interfere with ating against employees who reported provisions wouldn’t apply to contrac - the authority of union leaders. violations of state or federal laws, rules, tors such as Snowden. It also would Aside from what Congress is doing, or regulations to a government or law require internal agency hearings to hear the Obama administration has taken enforcement agency. The new law ex - whistleblower claims instead of an several recent steps aimed at encour - tends that protection to employees who outside entity or a judge. aging more whistleblowing. The Occu - report suspected illegal behavior either In general, the Republican-controlled pational Safety and Health Administra - internally or externally and declares as House has been less inclined than the tion (OSHA) developed a new procedure unlawful any policies that prevent the Democratic-controlled Senate to act on last year for handling retaliation com - disclosure of potential violations of local whistleblower legislation. Rep. Darrell plaints. It allows individuals to complete laws, rules or regulations. 98 Issa, R-Calif., who chairs the Oversight an online form 24 hours a day instead In Pennsylvania, the most populous and Government Reform Committee, of only accepting complaints in writing state without its own version of the has held hearings on some matters in - or orally during business hours. 94 false Claims Act, two legislators re - volving the Obama administration, in - At the Pentagon, Patrick Gookin was cently introduced such a bill. The prime cluding one in August 2013 on whether installed last march as the first director sponsor, Democratic state Rep. Bran - the Energy Department’s Bonneville of the Defense Hotline Program and don Neuman, said the lack of a false Power Administration, a federal agency whistleblower protection ombudsman. claims law is costing the state millions based in Portland, Ore., retaliated against Since then, he has waged a public- of dollars in damages it could other - whistleblowers . 90 awareness campaign to let all employ - wise recover. 99 “I want to send a message to any ees know they can turn to his office The U.S. Supreme Court in No - whistleblower out there: If you want to with complaints through the anonymous vember heard arguments in a case that come forward and speak, we will pro - Defense Department hotline. addresses whether workers at private tect you,” Issa said at the hearing . 91 “we don’t care who you are; we don’t companies contracting with public com - Issa also has been among the con - care what your motivation is,” Gookin panies offering stock shares can be servatives who have sought to portray told reporters in November. “You could legally considered whistleblowers. Gregory Hicks, the deputy chief of mis - be calling for all the wrong reasons The case, Lawson v. FMR LLC , involves sion at the U.S. consulate in Benghazi, — you’re a jilted lover — but as long two fidelity Investments employees who Libya, when it was attacked in 2012, as as what you’re calling about is true, complained to the Labor Department that a whistleblower. Conservative media out - that’s all we care about.” 95 they were dismissed after raising ques - lets contend Hicks was silenced and de - tions about the accuracy of corporate fil - moted by his State Department superiors ings. fidelity, which is privately held but for questioning the Obama administra - State and Court Actions sells shares of public companies to in - tion’s response to the attack. Democrats vestors, argued that Congress intended have challenged that characterization, ome state governments are broad - the Sarbanes-Oxley Act’s protections contending that Hicks cooperated with S ening or seeking to broaden their against retaliation to apply only to em - fBI and State Department investigators existing whistleblower laws. ployees of public companies. and was never demoted but is awaiting In New York, for instance, a pro - Employment lawyer R. Scott Oswald, a new job posting at which he would posed bill would expand the state’s whose firm filed an amicus brief in the hold the same rank and salary. 92 false Claims Act to include financial case, says justices appeared sympathet - In December, Rep. matt Salmon, R- industry whistleblower provisions sim - ic to upholding employees’ rights in the Ariz., introduced a bill backed by other ilar to those in the federal Dodd-frank 1989 and 2012 whistleblower protection conservatives creating whistleblower pro - law. The bill would entitle eligible laws. 100 But Justice Anthony Kennedy, tections for labor union employees. “They whistleblowers to receive between 10 who is often a swing vote on the court, should be able to shine a light on cor - percent and 30 percent of the dam - seemed unconvinced by the arguments ruption or violations of their unions’ ages recovered by the state. 96 of the Justice Department, which backs fiduciary duties, without the threat of minnesota recently expanded its 27- the two workers. 101 union boss retaliation,” Salmon said. 93 year-old whistleblower law, which pre - The Supreme Court also is consid - Even if the House passes the bill viously applied only to state employ - ering hearing two appeals from the 97 in 2014, it faces extremely long odds ees, to cover private-sector workers. Continued on p. 114

112 CQ Researcher At Issue:

Canyes Edward Snowden be considered a whistleblower?

BEATRICE EDWARDS JON MILLS EXECUTIVE DIRECTOR , G OVERNMENT DEAN EMERITUS , P ROFESSOR OF LAW ; ACCOUNTABILITY PROJECT ; L EGAL COUNSEL DIRECTOR , C ENTER FOR GOVERNMENTAL TO EDWARD SNOWDEN RESPONSIBILITY , U NIVERSITY OF FLORIDA LEVIN COLLEGE OF LAW WRITTEN FOR CQ RESEARCHER , JANUARY 2014 WRITTEN FOR CQ RESEARCHER , JANUARY 2014 ast year, federal contractor Edward Snowden made sub - stantial revelations to journalists about National Security et’s be clear — it is rational and acceptable to criticize the l Agency (NSA) surveillance programs that he reasonably NSA for violating privacy rights and at the same time be - believed to be illegal and an abuse of NSA authorities. Snow - l lieve that Edward Snowden is not a hero. den’s actions alone make him a whistleblower, but consider the Snowden is not willing to go to jail for his principles, nor is actions that followed. he willing to follow the law to be a real whistleblower. He is not Roughly six months later, U.S. District Court Judge Richard martin Luther King, Jr. He is not Daniel Ellsberg. Real whistleblow - Leon characterized the NSA’s telephone-call metadata collection ers seek to point out wrongdoing to make the country better. program revealed by Snowden as ineffective and likely unconsti - Some become media heroes. In 2002, fBI agent Colleen Rowley tutional. Days later, a hand-picked white House panel of intelli - was one of Time ’s “Persons of the Year” for revealing fBI incom - gence and legal experts came to the same conclusion. Among petence before the Sept. 11, 2001, terrorist attacks. their 46 recommendations to rein in the national surveillance ap - There are 40 or more statutes that protect whistleblowers paratus was termination of the bulk metadata collection program. today. They include protection for national security disclosures. The white House responded on Jan. 17 with the presi - A real whistleblower, even one dealing with national security dent’s first myajor policy speech on the s nation’s intelligence issues, could hnave sought the truoth under existing whistleblow - programs, in which he suggested “concrete and substantial” re - ing laws. These laws allow for disclosures to be made to con - forms to NSA surveillance programs. gressional intelligence committees, which allows for the privacy finally, less than a week later, the Privacy and Civil Liberties debate while also protecting national security. Oversight Board, an independent bipartisan agency that had been There is an ethical component to whistleblowing. That is, essentially dormant until three months after the Snowden revela - we have laws to protect whistleblowers because we think a tions, issued a 238-page report concluding that the NSA metadata person who honors the moral obligation to disclose wrongdo - collection program is illegal and should be closed down. ing should be afforded legal protection from retribution. It is The oversight board also pointed out that the foreign Intel - not clear that Snowden was following such a moral compass. ligence Surveillance Act (fISA) Court failed to produce a judi - Instead, Snowden violated his confidentiality oath, fled to cial opinion on the legal rationale for the metadata program Hong Kong and Russia and disclosed multiple national secrets. until two months after the Snowden disclosures. Thus, the But he sparked a needed national debate. court had been issuing orders for phone company records as what have we learned? early as may of 2006 with no written judicial opinion. • we need more transparency in national intelligence policy. The oversight board also questioned the utility of the meta - we do need to know how our government is interpreting sur - data program, stating it found “no instance in which the pro - veillance laws. Some of the testimony of the intelligence hier - gram directly contributed to the discovery of a previously un - archy reminds us of Jack Nicholson’s Colonel Jessup in “A few known terrorist plot or the disruption of a terrorist attack.” In Good men” — “You can’t handle the truth!” Yes we can. we other words, Snowden revealed a secret program that was do not need to know how, when or where the NSA is wire - completely ineffective and authorized by a secret court that tapping terrorists. we do need to know what type of data the had failed to provide a written legal rationale. NSA is collecting on all Americans. Snowden’s revelations have given rise to more than two • we need a better process for real whistleblowers. There dozen bills in Congress, several lawsuits and governmental are good proposals for creating a truly independent inspector and corporate reforms worldwide. His actions also exposed general position reporting directly to Congress that can protect false statements given under oath to Congress from Director whistleblowers and national security. of National Intelligence James Clapper. • we can’t outsource national security to people like Snow - U.S. law defines whistleblowers as employees of conscience den. we need better scrutiny of contractors and a tighter defi - who disclose actions they believe are illegal, fraudulent, waste - nition of what should be “outsourced.” ful, abusive of authority or dangerous to the public. It’s abun - Our country is having a healthy privacy debate since Snow - dantly clear from these events that Snowden acted in the pub - den’s disclosures. That fact does not make him a hero or a whistleblower. lic inteno rest as a classic whistleblower. www.cqresearcher.com Jan. 31, 2014 113 wHISTLEBLOwERS

Continued from p. 112 whistleblower lawyer Kohn says eventually will change organizational fourth U.S. Circuit Court of Appeals Snowden and manning don’t fit the pro - culture and practice and “reduce the involving false Claims Act cases. The file of most whistleblowers, who tend level of reprisal in the first place,” he court has asked the Office of Solici - to be older and occupy senior positions says. tor General for its views, greatly in - within their organizations. “They’ve been creasing the chance that the court will around for 10 or 15 years and they have Notes take up at least one of the cases. 102 a lot to lose,” he says. “I never get clients In another closely watched case, the in their 20s, ever.” 1 Remarks by Thomas Drake at “National whistle - U.S. Court of Appeals for the federal Continuing technological advances blower Tour,” American University, Sept. 23, 2013; Circuit recently rejected a petition from likely will encourage more whistle - for background, see Jane mayer, “The Secret the departments of Justice and Home - blowing. The nonprofit freedom of the Sharer,” The New Yorker , may 23, 2011, www.new land Security for a full-court review of Press foundation announced in De - yorker.com/reporting/2011/05/23/110523fa_fact _ an April three-judge panel decision in - cember that the next version of Secure mayer . 2 volving a Transportation Security Ad - Drop, an online document repository Catherine foti, “The SEC’s 2013 whistle - blower Report: Things Left Unsaid,” Forbes , ministration employee. whistleblower for anonymous whistleblowers to sub - Nov. 20, 2013, www.forbes.com/sites/insider/2013/ advocates hailed the court’s decision in - mit information to news organizations, 106 11/20/the-secs-2013-whistleblower-report-things- volving Robert macLean, who revealed had been finalized. American Uni - left-unsaid /. in 2003 that the Department of Home - versity’s vaughn predicts that such de - 3 Charles S. Clark, “Operators Are Standing By land Security had decided to cancel a velopments will enhance what is al - at Pentagon whistleblower Hotline,” Government plan to put federal air marshals on long- ready strong public support — and, in Executive , Nov. 15, 2013, www.govexec.com/ distance flights. 103 turn, political support — for exposing management/2013/11/operators-are-standing- future workplace problems. pentagon-whistleblower-hotline/73940 /. “whistleblowing has reached a level 4 Correy E. Stephenson, “An Explosion of of public acceptance that portends the whistleblower Claims,” Michigan Lawyers Week - future development of whistleblower ly , July 1, 2013, http://milawyersweekly.com/ OUTLOOK news/2013/07/01/an-explosion-of-whistleblow laws and the need for institutions both er-claims /. public and private to come to grips 5 “fraud Statistics — Overview, October 1, 1987 - with whistleblowing,” says vaughn. Sep t. 30, 2013, Civil Division, U.S. Department Contagious Courage? In such a climate, he and other ex - of Justice, www.justice.gov/civil/docs_forms/C- perts predict, companies and organi - fRAUDS_fCA_Statistics.pdf . he acclaim that Snowden has drawn zations are likely to take more proac - 6 Gregory wallace, “whistleblower Awarded T from civil libertarians and the media tive actions to address whistleblowing $14 million, SEC’s Largest Ever,” CNN.com, — The New York Times ’ editorial board internally. washington employment Oct. 1, 2013, http://money.cnn.com/2013/10/ called for him to receive clemency or a lawyer Terence Healy proclaimed 2014 01/news/sec-whistleblower /. plea bargain — gives whistleblower ad - “the year of the whistleblower” and urged 7 for background on Snowden, see Chuck vocates hope that the case will inspire companies to act accordingly. mcCutcheon, “Government Surveillance,” CQ more employees to come forward. 104 “Employers who do not take steps Researcher , Aug. 30, 2013, pp. 717-740. 8 “what Is a whistleblower?” Government Ac - Since the NSA revelations became to address any employee concerns be - countability Project website, www.whistleblow public, “a handful” of intelligence work - fore they reach ‘whistleblower’ status — er.org/about/what-is-a-whistleblower. ers already have approached the Gov - like strengthening internal reporting 9 Siddhartha Dasgupta and Ankit Kesharwani, ernment Accountability Project seeking and compliance programs — do so at “whistleblowing: A Survey of Literature,” IUP help with their claims of wrongdoing, their peril,” Healy wrote in Forbes. 107 Journal of Corporate Governance , October 2010, says Jesselyn Radack, the group’s na - Griffith University’s Brown says that, http://papers.ssrn.com/sol3/papers.cfm?abstract tional security and human rights direc - ideally, governments and businesses _id=1737567 . tor. “I think courage is contagious,” says will come to regard whistleblowing as 10 marc D. Street, “Cognitive moral Develop - Radack, a former Justice Department positive, so that the need for antire - ment and Organizational Commitment: Two Po - ethics adviser who revealed fBI ethics taliatory laws will diminish over time. tential Predictors of whistleblowing,” Journal of violations involving the interrogation “The big shift yet to occur in the Applied Business Research , vol. 11, No. 4 (1995), cluteonline.com/journals/index.php/JABR/ar of “American Taliban” fighter John walk - U.S. is one that recognizes the value ticle/download/5853/5931 ?. er Lindh. Soon afterwards, she re - of whistleblowing for good governance 11 Charles Bankhead, “whistleblowers Endure ceived a negative performance review and good regulation,” says Brown. If Stress and Personal Hardship,” MedPage Today’s 105 and resigned from the department. that happens, legislation and policies KevinMD.com , June 7, 2010, www.kevinmd.

114 CQ Researcher com/blog/2010/06/whistleblowers-endure-stress- 23 michael Calderone, “AP Editor: Do Not De - 34 “Blowing The whistle: Barriers to federal personal-hardship.html . scribe Edward Snowden as a ‘whistleblower,’ ” Employees making Disclosures,” U.S. merit Sys - 12 Natasha Lennard, “NSA’s Dragnet Is Indefen - The Huffington Post , June 10, 2013, www.huff tems Protection Board, November 2011, www.usda. sible,” Salon.com , June 7, 2013, www.salon.com/ ingtonpost.com/michael-calderone/ap-snow gov/oig/webdocs/Blowing_The_whistle.pdf . 2013/06/07/dont_defend_the_dragnet /. den-whistleblower_b_3416380.html. 35 “About mSPB,” U.S. merit Systems Protec - 13 Phil mattingly and Hans Nichols, “Obama 24 Greg miller, “Snowden Denies Stealing Pass - tion Board, www.mspb.gov/about/about.htm . Pursuing Leakers Sends warning to whistle - words to Access Secret files,” The Washington 36 maier, op. cit. blowers,” Bloomberg.com, Oct. 17, 2012, www. Post , Jan. 23, 2013, www.washingtonpost.com/ 37 Robert J. mcCarthy, “Blowing in the wind: bloomberg.com/news/2012-10-18/obama-pur world/national-security/snowden-denies-stealing- Answers for federal whistleblowers,” William & suing-leakers-sends-warning-to-whistle-blow passwords-to-access-secret-files/2014/01/23/ Mary Policy Review 184 , 2012, www.wm.edu/ ers .html . Also see “Punditfact,” Tampa Bay Times , d1f7d9e4-8472-11e3-8099-9181471f7aaf_story.html . as/publicpolicy/wm_policy_review/Archives/ Jan. 10, 2014, www.politifact.com/punditfact/ 25 David Kravets, “finally, a Ruling That Rec - volume%203/mcCarthy.pdf . statements/2014/jan/10/jake-tapper/cnns-tapper- ognizes Snowden as a whistleblower,” Wired , 38 James m. Eisenmann, “merit Board Rep obama-has-used-espionage-act-more-all -/. Dec. 19, 2013, www.wired.com/threatlevel/2013/ Responds to ‘Disclosure’ Piece,” Washington 14 Daniel Ellsberg, “Edward Snowden: Saving Us 12/snowden/. Lawyer , June 2013, www.dcbar.org/bar-resourc from the United Stasi of America,” The Guardian , 26 Evan Perez, “Judge Rules NSA Collection of es/publications/washington-lawyer/articles/ June 10, 2013, www.theguardian.com/commentis Phone Records is Legal,” CNN.com, Dec. 27, 2013 , june-2013-letters.cfm . free/2013/jun/10/edward-snowden-united-stasi- www.cnn.com/2013/12/27/justice/nsa-ruling /. 39 “former Bush Lawyer to Spend One Day in america . 27 Lilly maier, “Better Protection for most, But Jail,” Legal Times.com , June 24, 2013, http://legal 15 Russell Goldman, “Hero. Traitor. whistle - Not the Intelligence Community,” PolitiFact.com , times.typepad.com/blt/2013/06/former-bush- blower. Spy. what to Call NSA Leaker Ed Nov. 21, 2013, www.politifact.com/truth-o- lawyer-to-spend-one-day-in-jail.html . Snowden?” ABC News.com, June 11, 2013, meter/promises/obameter/promise/426/increase- 40 Joe Davidson, “Under Carolyn Lerner, Spe - http://abcnews.go.com/US/nsa-leaker-edward- protections-for-whistleblowers /. cial Counsel Office is Doing Its Job Now, snowden-whistle-blower/story?id=19374578 . 28 Joe Davidson, “Obama’s ‘misleading’ Com - Observers Say,” The Washington Post , June 28, 16 “Supreme Court Bars Appeal of Ex-CIA ment on whistleblower Protections,” The Wash - 2012, www.washingtonpost.com/politics/under- Agent,” The Associated Press, Jan. 9, 2006, www. ington Post , Aug. 12, 2013, www.washington carolyn-lerner-special-counsel-office-is-doing- nbcnews.com/id/10776953/ns/us_news-life/#. post.com/politics/federal_government/obamas- its-job-now-observers-say/2012/06/28/gJQAp UsHHUvZOBv4 . misleading-comment-on-whistleblower-protect X229v_story.html . 17 Leonard Downie Jr. with Sara Rafsky, “The ions/2013/08/12/eb567e3c-037f-11e3-9259-e2a 41 maier, op. cit. Obama Administration and the Press,” Commit - afe5a5f84_story.html . 42 Sean Reilly, “for Office of Special Counsel , tee to Protect Journalists, Oct. 10, 2013, www. 29 Joe Davidson, “Could Better whistleblow - Turnaround Brings Struggle,” Federal Times , Sept . cpj.org/reports/2013/10/obama-and-the-press- er Protections Prevent Another Snowden from 10, 2013, www.federaltimes.com/article/ 2013 us-leaks-surveillance-post-911.php . Happening?” The Washington Post , Jan. 21, 2013, 0910/DEPARTmENTS/309100011/for-Office- 18 “Bradley manning’s Lawyer: He’s a whistle - www.washingtonpost.com/politics/federal_gov Special-Counsel-turnaround-brings-struggle . blower,” The Associated Press, July 26, 2013, ernment/could-better-whistleblower-protections- 43 maier, op. cit. www.cbsnews.com/news/bradley-mannings- prevent-another-snowden-from-happening/ 44 The law is PL 112-199, https://www.govtrack. lawyer-hes-a-whistleblower /. 2014/01/21/324b392e-82d1-11e3-bbe5-6a2a31 us/congress/bills/112/s743 . 19 Chase madar, “Bradley manning: Criminal 41e3a9_story.html . 45 for background see James Kelly, “Year of or whistleblower?” Mother Jones.com , Jan. 19, 30 Spencer Ackerman, “Senate Committee Ap - the whistleblowers,” Time , Dec. 30, 2002. 2012, www.motherjones.com/politics/2012/01/ proves New whistleblower Protection measures,” 46 for background see Jon O. Shimabukuro, bradley-manning-criminal-whistleblower-wiki The Guardian , Nov. 7, 2013, www.theguardian. et al. , “Survey of federal whistleblower and leaks . com/world/2013/nov/07/senate-intelligence- Anti-Retaliation Laws,” Congressional Research 20 Trevor Timm, “If Snowden Returned to U.S. committee-drones-whistleblower-protection . Service, April 22, 2013, https://www.fas.org/sgp/ for Trial, All whistleblower Evidence would 31 “whistleblower Rights for National Security crs/misc/R43045.pdf ?. Likely Be Inadmissible,” freedom of the Press and Intelligence Community workers Advancing 47 The bill is HR 2483, the whistleblower Im - foundation blog, Dec. 23, 2013, https://press Again in Congress,” Project on Government provement Act, https://www.govtrack.us/con freedomfoundation.org/blog/2013/12/if-snow Oversight, Nov. 8, 2013, www.pogo.org/about/ gress/bills/112/hr2483 . den-returned-us-trial-all-whistleblower-evidence- press-room/releases/2013/whistleblower-rights- 48 Andrew Joseph, “whistleblower Bill Draws would-likely-be-inadmissible . for-national-security-intelligence-workers.html . Lobbying,” Government Executive , Jan. 10, 2012, 21 Peter Baker, “moves To Curb Spying Help 32 “face The Nation Transcripts, Nov. 3, 2013: www.govexec.com/oversight/2012/01/whistle Drive the Clemency Argument for Snowden,” feinstein, Rogers, Hayden,” CBS News.com, blower-bill-draws-lobbying/35798 /. The New York Times , Jan. 5, 2013, www.nytimes. Nov. 3, 2013, www.cbsnews.com/news/face- 49 Office of Rep. michael Grimm, “Reps. Grimm, com/2014/01/05/us/moves-to-curb-spying-help- the-nation-transcripts-november-3-2013-feinstein- Garrett, Campbell and Stivers Introduce whistle - drive-the-clemency-argument-for-snowden.ht rogers-hayden /. blower Improvement Act,” July 12, 2011 , http:// ml?hpw&rref=us&_r=0 . 33 “Live Q&A with Edward Snowden,” Courage grimm.house.gov/press-release/reps-grimm- 22 See Haass’ tweet at https://twitter.com/ foundation, Jan. 23, 2014, www.freesnowden. garrett-campbell-and-stivers-introduce-whistle RichardHaass/status/343859243235028992 . is/asksnowden /. blower-improvement-act .

www.cqresearcher.com Jan. 31, 2014 115 wHISTLEBLOwERS

50 Dana Liebelson, “Study Crushes One Argu - 59 Ben Zimmer, “The Epithet Nader made Re - 74 Greg farrell, “worldCom’s whistleblower Tells ment for Rep. Grimm’s So-Called whistleblow - spectable,” The Wall Street Journal , July 12, 2013, Her Story,” USA Today , feb. 14, 2008, http://usa er ‘Improvement’ Act,” Project on Government http://online.wsj.com/news/articles/SB1000142 today30.usatoday.com/money/companies/regu Oversight blog, June 7, 2012, http://pogoblog. 4127887323368704578596083294221030 . lation/2008-02-14-cynthia-cooper-whistleblow typepad.com/pogo/2012/06/study-crushes-argu 60 Ralph Nader, Peter J. Petkas and Kate Black - er_n.htm . ment-for-rep-grimms-so-called-whistleblower- well, Whistle Blowing: The Report of the Confer - 75 Jon O. Shimabukuro, et al. , “Survey of fed - improvement-act.html . ence on Professional Responsibility (1972), p. 7. eral whistleblower and Anti-Retaliation Laws,” 51 Samuel Rubenfeld, “Richard moberly on the 61 “A Timeline of whistleblowers,” Govern - Congressional Research Service, April 22, 2013, Complexities of Obama’s whistleblower Poli - ment Accountability Project, www.whistleblow http://digitalcommons.ilr.cornell.edu/key_work cies,” The Wall Street Journal , Jan. 14, 2013, http:// er.org/about/a-timeline-of-whistleblowers . place/1138 /. blogs.wsj.com/corruption-currents/2013/01/14/ 62 “The most Dangerous man in America: The 76 “Global Anti-Bribery and Corruption Sur - qa-richard-moberly-on-the-complexities-of- Ellsberg-Russo Trial,” PBS.org, Oct. 5, 2010 , www. vey 2011,” KPmG, Jan. 6, 2011, www.kpmg.com/ obamas-whistleblower-policies /. pbs.org/pov/mostdangerousman/photo_gallery_ uk/en/issuesandinsights/articlespublications/ 52 The bill is the Tax Relief and Health Care background.php?photo=4#.UsRTh_ZOBv4 . pages/global-abc-survey-2011.aspx . Act of 2006, PL 109-432, https://www.govtrack. 63 Bob woodward, “How mark felt Became 77 Richard moberly, “Sarbanes-Oxley’s whistle - us/congress/bills/109/hr6111 . ‘Deep Throat,’ ” The Washington Post , June 20 , blower Provisions — Ten Years Later,” South 53 Paul farhi, “Stephen Kohn wins Another 2005, www.washingtonpost.com/politics/how- Carolina Law Review 1 (2012), may 21, 2012, whistleblower Case, This One for Bradley mark-felt-became-deep-throat/2012/06/04/gJ http://papers.ssrn.com/sol3/papers.cfm?abstract_ Birkenfeld,” The Washington Post , Sept. 11, 2012, QAlpARIv_story.html . id=2064061 . www.washingtonpost.com/lifestyle/style/stephen- 64 “A Timeline of whistleblowers,” op. cit. 78 Jerry markon and Dan Eggen, “fBI Erred kohn-wins-another-whistleblower-case-this-one- 65 L. Paige whitaker and michael Schmerling, widely in moussaoui Probe, Report Says,” for-bradley-birkenfeld/2012/09/11/e7e5a204- “whistleblower Protection for federal Em - The Washington Post , June 20, 2006, www.wash fc51-11e1-a31e-804fccb658f9_story.html . ployees,” Congressional Research Service, up - ingtonpost.com/wp-dyn/content/article/2006/06/ 54 Erika Kelton, “IRS whistleblowers See Little dated may 18, 1998, pp. 2-3, whistle20.tripod. 19/AR2006061901303.html . Reward,” Forbes , march 2, 2012, www.forbes. com/crswhistle.pdf? . 79 “A Timeline of whistleblowers,” op. cit. com/sites/erikakelton/2012/03/02/irs-whistle 66 Rona, op. cit. 80 Erik Eckholm, “Army Corps Agrees to Pay blowers-see-little-reward /. 67 Ibid. whistle-Blower in Iraq Case,” The New York 55 Stephen martin Kohn, et al. , Whistleblower 68 National whistleblowers Center, www.whistle Times , July 28, 2011, www.nytimes.com/2011/ Law: A Guide to Legal Protections for Corpo - blowers.org/index.php?option=com_content& 07/29/world/middleeast/29reconstruct.html . rate Employees (2004), http://bit.ly/19zN6Rt . task=view&id=741&Itemid=161 ; whistleblower 81 Garcetti et al. v. Ceballos , 361 f. 3d 1168, 56 for background see Charles S. Clark, laws.com, www.whistleblowerlaws.com/false- www.law.cornell.edu/supct/html/04-473.ZS.html . “whistleblowers,” CQ Researcher , Dec. 5, 1997, claims-act/new-york-city-false-claims-act /. 82 “whistleblower Protection Enhancement Act pp. 1059-1078; Ilyas J. Rona, “The whistle - 69 “A Timeline of whistleblowers,” op. cit. Passes Through Congress,” Public Citizen news bl ower Perspective: why They Do It and why 70 Shelley L. Peffer, et al. , “whistle where You release, Sept. 28, 2012, www.citizen.org/press we Need Them,” Suffolk University Law Schoo l— work? The Ineffectiveness of the federal whistle - room/pressroomredirect.cfm?ID=3718 . Continuing Legal Education (ALS), march 2011, blower Protection Act of 1989 and the Promise 83 “Lawmakers Introduce military whistle - greenellp.com/wp-content/uploads/2011/04/ of the whistleblower Protection Enhancement blower Protection Act,” FederalDaily , Nov. 22, Ilyas-J-Rona-whistleblower-Perspective.pdf . Act of 2012,” Review of Public Personnel Ad - 2013, http://federaldaily.com/articles/2013/11/ 57 “History of the false Claims Act — The whistle - ministration , Oct. 22, 2013, rop.sagepub.com/ 22/lawmakers-introduce-military-whistleblower- blower Act,” Bernstein Liebhard LLP.com, www. content/early/2013/10/17/0734371X13508414. protection-act.aspx . bernlieb.com/whistleblowers/History-Of-The- abstract ?. 84 Dylan Blaylock, “Senate Approves military false-Claims-Act/index.html . 71 “A Timeline of whistleblowers,” op. cit. whistleblower Protection Act makeover,” Gov - 58 Louis fisher, “National Security whistle - 72 Ibid. ernment Accountability Project blog, Dec. 20, blowers,” Congressional Research Service, 73 “Sherron’s Bio,” Sherronwatkins.com, www. 2013, www.whistleblower.org/blog/44-2013/ Dec. 30, 2005, www.fas.org/sgp/crs/natsec/RL3 sherronwatkins.com/sherronwatkins/Sherrons_ 3123-senate-approves-military-whistleblower- 3215.pdf ?. Bio.html . protection-act-makeover . 85 Office of Sen. Patrick Leahy, “Senate Unani - mously Passes Leahy-Grassley Bill To Protect About the Author whistleblowers in Criminal Antitrust Cases,” Nov . 5, 2013, www.leahy.senate.gov/press/senate- Chuck McCutcheon is a freelance writer in Washington, unanimously-passes-leahy-grassley-bill_to-pro D.C. He has been a reporter and editor for Congressional tect-whistleblowers-in-criminal-antitrust-cases . Quarterly and Newhouse News Service and is co-author of 86 “POGO Endorses National Security work - the 2012 and 2014 editions of The Almanac of American force Accountability Bill,” Project on Govern - Politics. He also has written books on climate change and ment Oversight, Dec. 13, 2013, www.pogo.org/ nuclear waste. about/press-room/releases/2013/pogo-endorses- national-security-workforce.html .

116 CQ Researcher 87 “Statement in Response to Ruling on Kaplan v. Conyers,” U.S. Office of Special Counsel, Aug. 21, 2013, www.osc.gov/documents/press/ FOR MORE INFORMATION 2013/pr13_06.pdf . Government Accountability Project , 1612 K St., N.w., Suite 1100, washington, 88 Jack moore, “whistleblower Cases Have DC 20006 ; 202-408-0034 ; www.whistleblower.org . Advocacy group founded 28 Gone ‘Through the Roof,’ Even as OSC faces years ago to represent whistleblowers, among other watchdog duties. Uncertain Budget,” federalNewsRadio.com, Dec. 2, 2013, www.federalnewsradio.com/521/ Merit Systems Protection Board , 1615 m St., N.w., washington, DC 20419 ; 3516823/whistleblower-cases-have-gone-through- 202-653-7200 ; www.mspb.gov . Quasi-judicial agency that hears cases of alleged the-roof-even-as-OSC-faces-uncertain-budget . retaliation against whistleblowers. 89 “Rogers: Omnibus Targets funding to Im - National Whistleblower Center , PO Box 3768, washington, DC 20007 ; 202-342- portant Programs, Continues Downward Trend 1902 ; www.whistleblowers.org . Legal-advocacy group that runs an attorney-referral in federal Spending,” U.S. House Appropria - service, mounts test-case litigation and provides other services. tions Committee, Jan. 13, 2014, http://appropria tions.house.gov/news/documentsingle.aspx? Office of Special Counsel , 1730 m St., N.w., washington, DC 20036 ; 202-254- DocumentID=366721 . 3600 ; www.osc.gov . federal agency that investigates whistleblower reports and other employee allegations. 90 “Department of Energy’s Bonneville Power Administration: Discriminating Against veter - Project on Government Oversight , 666 11th St., N.w., Suite 500, washington DC ans and Retaliating Against whistleblowers,” 20001 ; 202-347-1122 ; www.pogo.org . watchdog group that investigates alleged govern - House Oversight and Government Reform Com - ment misconduct and works with whistleblowers and advocates on their behalf. mittee website, Aug. 1, 2013, http://oversight. house.gov/hearing/department-of-energys-bonne U.S. Court of Appeals for the Federal Circuit , 717 madison Place, N.w., ville-power-administration-discriminating-against - washington DC 20439 ; 202-633-6550 ; www.fedcir.gov . Hears federal government whistleblower cases; website contains texts of relevant decisions. veterans-and-retaliating-against-whistleblowers /. 91 Statement of Rep. Darrell Issa, “OGR full Committee Hearing: Department of Energy’s Reward and Protect whistleblowers,” Forbes , 102 marshall walker, “Supreme Court to Po - Bonneville Power Administration: Discriminating Oct. 9, 2013, www.forbes.com/sites/insider/ tentially Review Two false Claims Act Cases,” Against veterans and Retaliating Against 2013/10/09/more-incentives-for-whistleblowers- Rabon Law firm’s “National whistleblower” whistleblowers,” Aug. 1, 2013, http://oversight. new-york-considers-a-new-law-to-reward-and- blog, Nov. 20, 2013, www.nationalwhistle - house.gov/hearing/department-of-energys- protect-whistleblowers /. blower.com/blog/2013/11/supreme-court- bonneville-power-administration-discriminating- 97 “minnesota Expands State’s whistleblower potentially-review-fourth-circuit-fca-cases /. against-veterans-and-retaliating-against-whistle Law,” Keller Grover LLP, Oct. 9, 2013, www.keller 103 Charles S. Clark, “Justice, DHS Lose Round blowers /#. groverwhistleblowerlawyers.com/minnesota- in TSA whistleblower Case,” Government Ex - 92 matt Gertz, “Explainer: A Year of Benghazi expands-states-whistleblower-law_10823.html . ecutive, Sept. 4, 2013, www.govexec.com/man myths,” media matters for America website, 98 Keith A. Goodwin and Laura Reathaford, agement/2013/09/justice-mspb-lose-round-tsa- Sept. 11, 2013, http://mediamatters.org/blog/ “New California Law Expands Protections for whistleblower-case/69918/?oref=river . 2013/09/11/explainer-a-year-of-benghazi-myths/ whistleblowers,” Proskauer-Rose LLP’s “Cali - 104 “Edward Snowden, whistleblower,” The New 195821#lefttodie3 . fornia Employment Law Update,” Dec. 12, 2013, York Times , Jan. 1, 2014, www.nytimes.com/ 93 “Salmon Introduces Bill Establishing whistle - http://calemploymentlawupdate.proskauer.com/ 2014/01/02/opinion/edward-snowden-whistle- blower Protections for Union Employees,” Of - 2013/12/articles/retaliation/new-california-law- blower.html . fice of Rep. matt Salmon, Dec. 3, 2013, http:// expands-protections-for-whistleblowers /. 105 Brian Ross and Rhonda Schwartz, “more salmon.house.gov/media-center/press-releases/ 99 “Neuman: Pa. Loses millions of Dollars for NSA Leakers followed Snowden’s footsteps, salmon-introduces-bill-establishing-whistle-blower- Lack of false Claims Act,” Office of Pennsyl - whistleblower Lawyer Says,” ABC News.com, protections-for-union . vania Rep. Brandon Neuman, Nov. 4, 2013, www. Oct. 31, 2013, http://abcnews.go.com/blogs/ 94 Sara Begley, “New OSHA form will fan pahouse.com/neuman/PAHouseNews.asp?doc headlines/2013/10/more-nsa-leakers-followed- the flames in whistleblower filings,” Forbes , =33494 . snowdens-footsteps-whistleblower-lawyer-says /. Sept. 5, 2011, www.forbes.com/sites/theemploy 100 Charles S. Clark, “Attorney: Supreme Court 106 Runa A. Sandvik, “freedom of the Press mentbeat/2013/09/05/new-osha-form-will-fan- Leaning Toward maintaining fed whistle - foundation to Release New version of Anony - the-flames-in-whistle-blower-filings /. blo wer Rights,” Government Executive, Nov. 12, mous whistleblower Submission System,” 95 Phillip Swarts, “Defense Department Looks 2013, www.govexec.com/management/2013/ Forbes , Dec. 5, 2013, www.forbes.com/sites/ to Publicize Overlooked whistleblower Hot - 11/attorney-supreme-court-leaning-toward- runasandvik/2013/12/05/freedom-of-the-press- line,” The Washington Times , Nov. 13, 2013, www. maintaining-fed-whistleblower-rights/73676 /. foundation-to-release-new-version-of-anony washingtontimes.com/news/2013/nov/13/de 101 Lawrence Hurley, “U.S. Justices Probe Private mous-whistleblower-submission-system /. fense-department-looks-publicize-overlooked- Company whistleblower Protections,” Reuters, 107 Terence Healy, “The Year of the whistle - whis/?page=all . Nov. 12, 2013, www.reuters.com/article/2013/ blower,” Forbes , Jan. 8, 2014, www.forbes.com/ 96 Jonathan Sack, “more Incentives for whistle - 11/12/us-usa-court-whistleblowers-idUSBRE9AB sites/theemploymentbeat/2014/01/08/2014-the- blowers: New York Considers a New Law to 19720131112 . year-of-the-whistleblower .

www.cqresearcher.com Jan. 31, 2014 117 Bibliography Selected Sources

Books 2011 , www.newyorker.com/reporting/2011/05/23/1105 23fa_fact_mayer . Devine , Tom , and Tarek F. Maassarani , The Corporate A journalist examines the case against Thomas Drake, a Whistleblower’s Survival Guide: A Handbook for Com - National Security Agency whistleblower accused of harming mitting the Truth , Berrett-Koehler Publishers , 2011 . national security — but subsequently exonerated — after re - The legal director of the Government Accountability Pro - vealing problems with one of the spy agency’s programs. ject (Devine) and an attorney (maassarani) explain the legal rights of private-sector whistleblowers. Reports and Studies

Greenberg , Andy , This Machine Kills Secrets: Julian As - “Blowing the Whistle: Barriers to Federal Employees sange, the Cypherpunks, and Their Fight to Empower Making Disclosures,” U.S. Merit Systems Protection Board , Whistleblowers , Plume , 2013 . 2011 , www.mspb.gov/studies/browsestudies.htm . A writer for Forbes magazine traces the sagas of prominent A federal agency compares surveys i n 1992 and 2010 to national-security leakers from Daniel Ellsberg to Julian As - describe how perceptions of retaliation against federal whistle - sange. blowers remains a serious problem.

Kohn , Stephen Martin , The Whistleblower’s Handbook: Dasgupta , Siddhartha , and Ankit Kesharwani , “Whistle - A Step-by-Step Guide to Doing What’s Right and Protecting blowing: A Survey of Literature,” IUP Journal of Cor - Yourself , Lyons Press , 2011 . porate Governance , 2010 , http://papers.ssrn.com/sol3/ A prominent whistleblower advocate and lawyer advises papers.cfm?abstract_id=1737567 . potential whistleblowers. The authors highlight literature regarding the types of whistle - blowing and the process, as well as the motivations of Vaughn , Robert G. , Successes and Failures of Whistle - whistleblowers and the consequences of their actions. blower Laws , Edward Elgar Publications , 2013 . An American University law professor who has studied McCarthy , Robert J. , “Blowing in the Wind: Answers for whistleblowing for decades examines how the activity has Federal Whistleblowers,” William & Mary Policy Review , become more prevalent in the United States as well as in 2012 , http://papers.ssrn.com/sol3/papers.cfm?abstract_ other countries and explains each nation’s laws. id=2119239 . A former federal agency lawyer cites what he contends are Articles flaws with the merit Systems Protection Board’s handling of whistleblower cases and makes suggestions for improve - “What Makes a Whistleblower?” WBUR.org , Aug. 16, 2013 , ments. http://hereandnow.wbur.org/2013/08/16/whistleblowing- fairness-loyalty . Moberly , Richard , “Sarbanes-Oxley’s Whistleblower Pro - A syndicated radio show examines research by North - visions: Ten Years Later,” South Carolina Law Review , western University and Boston College scientists about what 2012 , http://digitalcommons.unl.edu/lawfacpub/154 /. motivates whistleblowers to come forward. A University of Nebraska professor studies the successes and failures of the 2002 Sarbanes-Oxley law that strength - Cohan , William D. , “Was This Whistleblower Muzzled?” ened protections for private-sector whistleblowers. The New York Times , Sept. 21, 2013 , www.nytimes.com/ 2013/09/22/opinion/sunday/was-this-whistle-blower- Rapp , Geoffrey Christopher , “Four Signal Moments in muzzled.html . Whistleblower Law: 1983-2013,” Hofstra Labor and Em - A journalist examines the case of Richard m. Bowen III, a ployment Journal , 2013 , papers.ssrn.com/sol3/papers. former Citigroup executive who exposed wrongdoing and cfm?abstract_id=2344447 . was subsequently fired. A University of Toledo law professor reviews four whistle - blower laws, from the 1986 false Claims Act to the 2009 Ludlow , Peter , “The Banality of Systemic Evil,” The New Dodd-frank law. York Times , Sept. 15, 2013 , http://opinionator.blogs.nytimes. com/2013/09/15/the-banality-of-systemic-evil/?_r=0 . Shimabukuro , Jon O. , et al. , “Survey of Federal Whistle - A Northwestern University philosophy professor examines blower and Anti-Retaliation Laws,” Congressional Research the moral underpinnings of Edward Snowden as well as other Service , April 22, 2013 , https://www.fas.org/sgp/crs/ national-security leakers and Internet activists. misc/R43045.pdf . The authors explain the dozens of different federal laws Mayer , Jane , “The Secret Sharer,” The New Yorker , May 23, relating to whistleblowing.

118 CQ Researcher The Next Step: Additional Articles from Current Periodicals

National Security Private Sector

“Edward Snowden, Whistle-Blower,” The New York Times , Hurley , Lawrence , “U.S. justices probe private company Jan. 1, 2014 , www.nytimes.com/2014/01/02/opinion/ whistleblower protections,” Reuters , Nov. 12, 2013 , www. edward-snowden-whistle-blower.html . reuters.com/article/2013/11/12/us-usa-court-whistleblow The paper’s editorial board argues that Snowden did not ers-idUSBRE9AB19720131112 . jeopardize U.S. national security and should be offered a Supreme Court justices are considering whether private con - plea bargain or clemency. tractors at public companies are protected.

Clark , Charles S. , “National Security Whistleblowers Could Smith , Jennifer , “Companies on Guard for New Legal Pit - Win New Protections,” Government Executive , Nov. 8, 2013 , falls,” The Wall Street Journal , Jan. 5, 2014 , http://online. www.govexec.com/management/2013/11/national- security- wsj.com/news/articles/SB100014240527023036406045 7 whistleblowers-could-win-new-protections/73514 /. 9298710673486356 . The Senate Intelligence Committee voted 13-12 to approve many large companies are scrutinizing their operations, in - a fiscal 2014 intelligence bill that would give national-security cluding interior threats, as federal whistleblower bounties grow. whistleblowers an official channel to make disclosures. Protection Dozier , Kimberly , “Lawmakers: Snowden’s leaks may en - danger US troops,” The Associated Press , Jan. 9, 2014 , Davidson , Joe , “Could better whistleblower protections www.bigstory.ap.org/article/lawmakers-snowdens-leaks- prevent another Snowden from happening?” The Washing - may-endanger-us-troops . ton Post , Jan. 21, 2014 , www.washingtonpost.com/politics/ Two congressmen say most of the documents leaked by federal_government/could-better-whistleblower-protections- former NSA contractor Edward Snowden were about current prevent-another-snowden-from-happening/2014/01/21/ military operations and could endanger troops overseas. 324b392e-82d1-11e3-bbe5-6a2a3141e3a9_story.html . The reporter says whistleblowers need more legal protec - Obama Administration tion and a fair process for pursuing their concerns.

Blake , Aaron , “Greenwald: Obama engaged in ‘unprece - Moshirnia , Anthony Navid , “False Claims Act Whistleblower dented war on whistleblowers,’ ” The Washington Post , Bounties Exceed $345 Million in Fiscal Year 2013,” The July 2, 2013 , www.washingtonpost.com/blogs/post-poli National Law Review , Jan. 21, 2014 , www.natlawreview. tics/wp/2013/07/02/greenwald-obama-engaged-in-unprece com/article/false-claims-act-whistleblower-bounties-ex dented-war-on-whistleblowers /. ceed-345-million-fiscal-year-2013 . The journalist who published Edward Snowden’s leaks on NSA A law associate says the government paid whistleblowers surveillance programs says the Obama administration is attack - $345 million during fiscal year 2013 under the false Claims Act. ing whistleblowers from revealing illegal government activity. CITING CQ RESEARCHER Boyer , David , “Obama blamed for NSA spying revelations Sample formats for citing these reports in a bibliography by whistleblower advocate group,” The Washington Times , June 11, 2013 , www.washingtontimes.com/news/2013/ include the ones listed below. Preferred styles and formats jun/11/obama-blamed-nsa-spying-revelations-whistleblower-/ vary, so please check with your instructor or professor. ?page=all . The Obama administration says it has strengthened pro - mLA STYLE tection for whistleblowers who use proper channels, but a Jost, Kenneth. “Remembering 9/11.” CQ Researcher 2 Sept. whistleblower advocate group says Obama has stripped pro - 2011: 701-732. tections for national-security whistleblowers. APA S TYLE Greenberg , Jon , “CNN’s Tapper: Obama has used Espionage Jost, K. (2011, September 2). Remembering 9/11. CQ Re - Act more than all previous administrations,” The Tampa Bay Times , Jan. 10, 2014 , www.politifact.com/punditfact/ searcher, 9 , 701-732. statements/2014/jan/10/jake-tapper/cnns-tapper-obama- CHICAGO STYLE has-used-espionage-act-more-all -/. The Obama Administration has used the Espionage Act seven Jost, Kenneth. “Remembering 9/11.” CQ Researcher , Sep - times against government workers who shared information with tember 2, 2011, 701-732. the press, more than all previous administrations combined.

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