Entrapping the whistle-blowers - efforts to stop government corruption - Cover Story
by Timothy W. Maier

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Despite the guarantees of the Whistleblower Protection Act, bereaucrats still strive to thwart the efforts of government employees trying to stop corruption.

It was just a letter handed to a congressman last year, but it allegedly cost the career of a high-ranking civilian engineer with a compartmentalized top-secret clearance. The letter states in part, "I have observed in my department, and in related departments, a pattern of con tracts that we may have won because of fraud, by claiming compliance with applicable (federal) standards. I and others have been told not to worry about the noncompliance; since there are no auditors with sufficient clearances to verify the objective evidence, the fraud will never be discovered."

The letter, provided to Insight, purportedly shows what can happen to whistle-blowers who report allegations of wrongdoing or suspected malfeasance in government programs. In the case of the engineer, it's unknown whether his information was correct -- neither the man nor his company would speak on the record about the specific case. When shown a copy of the letter, a high-ranking congressional aide said his boss gets similar tips regularly. But they're hard to prove -- especially in intelligence arenas, as with the engineer's claims that government mapping satellites were used by unauthorized people for clandestine operations to gather sensitive data on defense-plant layouts and production secrets that other countries and competitors would kill for.

"Senior corporate officials appear to me to be under intense pressure to collect and relate data to federal agencies," the letter says. "The data collected appear to me to exceed the authority of the agencies requesting the data, and to be in violation of their agency charters and constitutional ... law. When I have raised questions with one of my direct supervisors, I was told to `never ask questions like that again.'"

Shortly after being contacted at work on an unsecure line by a senior congressman, the whistle-blower claims, he was fired; such a connection is almost impossible to confirm. Then why mention it? Because this is precisely what people believe happens to those who dare blow the whistle to Congress on systemic corruption.

Critics of the Whistleblower Protection Act claim they know of hundreds of people who want to step forward but choose not to because they've heard "stories" like that told by the engineer. It doesn't matter if the stories of betrayal are true or false: It's what people believe, especially when it concerns the U.S. Office of Special Counsel, or OSC, which investigates such complaints. It is supposed to protect those who expose illegality, waste, gross mismanagement, abuse of power or danger to public health. But does it?

The OSC is supposed to try reprisal cases before the Merit System Protection Board, or MSPB, a politically appointed three-member panel, but it has not done so since 1979. The last case involved allegations made by U.S. marshals who charged they suffered retaliation for complaining about racism within the Marshals Service. Shortly after losing that case, the special counsel resigned and the OSC budget was slashed dramatically.

In fact, the OSC never has won a trial to restore a whistle-blower's job. "It is a toothless tiger that is not willing to call an agency's bluff and take it to trial," declares Tom Devine, legal director for the Government Accountability Project in Washington. Devine advocates reforming the 1978 whistleblower law (already amended once by the Whistleblower Protection Act of 1989) to allow such employees access to jury trials and to expand whistleblower protection to government vendors in the private sector. "As long as whistle-blowers are limited to bureaucratic courts, whistle-blowers aren't going to have a fair chance of defending themselves," Devine says.

The way the system is set up, the only way to get a jury trial is for a whistle-blower to take on the personal expense of hiring an attorney and filing a lawsuit or for the Justice Department to take the suit on behalf of the whistle-blower under what's called a "False Claims Act." Since 1986, 1,400 such suits have been filed -- most involving Pentagon contracts, but recently there has been an emergence of actions for health-care abuse. The Justice Department has obtained $3 billion in fraud recoveries and is believed to have deterred as much as $295.8 billion in fraud, according to Taxpayers Against Fraud.

Florida lawyer Mike Papantonio, an expert in false-claims cases who has handled many of the recent Columbia/HCA Corp. health-care fraud suits, says the whistle-blower law is helping to fight $90 billion in Medicare fraud by rewarding those who come forward, giving them up to 25 percent of recovered fraud. He projects that during the next five years there will be a drastic reduction in such abuse. Papantonio wants the legislation refined to protect all "relators" of information, regardless of whether they have direct or indirect knowledge. As it stands, if people hear a second-hand report about abuse and pass it on to authorities, they are on their own. Says Papantonio: "Anyone with information should be (protected as) a relator but the government has fallen into the argument of the HMOs that relators are going to prey on us. I ask you: Who is preying on whom?"

Devine cautions in his book, The Whistleblower's Survivor Guide, that the odds of winning lucrative cash awards for exposing fraud against the government is akin to winning the lottery, and the odds of a painful and protracted reprisal are a safe bet. "The 1978 law is the strongest free-speech legislation on the books, but it still creates reprisal victims faster than it protects them" Devine tells Insight.

For example, once an employee files a reprisal complaint the evidence is funneled back to the allegedly offending agency, which gives the agencies a head start to destroy documents. The General Accounting Office recently noted that 59 percent of whistle-blowers reported instances in which, without their permission, OSC sent information about the cases to their employers -- and GAO concluded OSC serves the agencies, not the civil-service merit system.

Critics charge the OSC is a "Trojan horse" with a poor track record when it comes to investigating allegations of prohibited personnel practices as well as reprisals. American University law professor Robert Vaughn, who specializes in whistle-blowing, says the environment at the OSC often is described by employees as a "legalized plumbers unit" and that it doesn't favor the whistle-blower.

"One of the things that discourages whistle-blowers is the belief that nothing will happen," Vaughn says. "People are asked to take substantial risk for nothing. The second problem is that the focus often is not on the whistleblower's concern. The focus is on the person bringing the bad news rather than the bad news itself."

The statistics appear to support that argument. Of the 1,785 cases of waste, abuse and corruption reviewed in fiscal 1996, only four were forwarded to MSPB. Likewise, that same fiscal year the OSC investigated 672 cases of reprisal but forwarded only one to the MSPB. "Getting help from the Office of Special Counsel is like waiting for Godot," Devine says. "It's akin to playing Russian roulette."

Karen Dalheim, spokeswoman for the OSC, defends the agency's record, saying no evidence exists in most of the cases and others fail to meet OSCs jurisdiction standards. "A few years ago we were concerned about the percentage of cases that were going to the board, but there has been a change in philosophy. We decided to try to obtain favorable actions because the decision from the board can take up to four years," Dalheim says. She notes they obtained 87 favorable actions from the 1,785 cases filed, and 61 favorable actions were obtained from the 672 reprisal cases filed.

Even when the cases do go to MSPB there remains a question of independence, because those reviewing whether the charges deserve a trial are political appointees. "These are stepping stones for bigger and better things," Devine says. "They know the way to get ahead in the administration is not to support whistle-blowers who embarrass presidents."

There was some improvement when amendments were passed in 1989 to put more of the burden on the agency to prove reprisals didn't occur, and if fact whistle-blowers now are winning 25 to 33 percent of such cases that are brought, compared to 5 to 10 percent previously, Devine notes.

Vaughn sees progress as well. Prior to 1978, employees who blew the whistle had to fall back on their First Amendment rights and a few agency rules, Vaughn says. Now, formal federal remedies are in place to protect them, including fines and disciplinary actions against employers who retaliate against whistle-blowing employees. However, most of the GAO investigations reviewed by Insight confirm that retaliation is so difficult to prove that fines rarely are levied against employers.

In some cases, the federal whistle-blower law appears to be weaker than similar employee-protection laws in 42 states. In fact, most recently, Washington City Councilwoman Carol Schwartz, a Republican, proposed the nation's toughest whistle-blower law, which would make it an employee's duty to report abuse and hold offenders personally liable. Sen. Charles Grassley, an Iowa Republican, is working to strengthen the federal legislation (see "Governement Corruption").

One problem that critics say needs to be addressed is the ability of the government to fire someone through the "back door," avoiding public knowledge because the termination is cloaked as a national-security decision. Or, in some cases, the wrongdoing is discovered through a national-security operation that cannot be exposed without blowing the cover of that operation. This seems to be the dilemma with a group of intelligence agents involved in the 1993 Asia-Pacific Economic Cooperation summit in Seattle. As Insight revealed last year, the agents uncovered illegal activities involving prostitution, kickbacks and disclosure of classified information through lawyers working for the Democratic National Committee (see "Did Clinton Bug Conclave for Cash?" Sept. 22, 1997). This occurred while conducting an economic espionage operation in which 200 locations were bugged, including hotel bedrooms, waterfront restaurants and even a boat carrying dignitaries and the press to Blake Island.

The outraged agents were told they couldn't expose the illegalities because that would blow the secret operation. Now they are torn' between whether to look the other way or blow the whistle and risk their careers.

"We don't want to end up like Gary Aldrich," says a source, referring to the former FBI agent who exposed gross security breaches and misbehavior at the Clinton White House in his best-selling book Unauthorized Access. Aldrich, whose reputation has been attacked viciously despite a distinguished career, says he understands the high cost of going public. He says he is setting up a whistle-blower protection network because FBI officials are exempt from the federal legislation that protects other whistle-blowers.

Attacking the accuser is nothing new. In 1863 Boston merchant Franklin W. Smith and his brother Benjamin were providing scarce materials for the Boston Navy Yard when they stumbled upon a dirty Navy secret. Corrupt military clerks were accepting bribes to give favor to certain contractors. Franklin Smith wrote to the House Naval Affairs Committee about widespread fraud, testified before a Senate committee and then wrote to the secretary of the Navy, Gideon Welles. His letter was intercepted by assistant secretary Gustavus V. Fox, who convinced Welles the Smith brothers were criminals and should be tried before a trumped-up military court on fraud charges. Franklin Smith was convicted and ordered to serve two years in prison and pay a $20,000 fine.

But President Lincoln stepped in and exonerated Smith, saying, "I am wholly unable to believe in the existence of criminal or fraudulent intent on the part of one of such well-established good character, as is the accused."

Nearly a century later the game was the same when Ernest Fitzgerald exposed the Pentagon's system of cost overruns, which allowed favored military contractors to win projects with low bids and then to jack up the costs. He testified at a Senate hearing in 1968 and exposed $2 billion in such overruns for cargo planes. This embarrassed Richard Nixon so much that the president can be heard on a White House tape telling aide H.R. Haldeman to "get that son of a bitch." They did. Fitzgerald's next job was auditing a bowling alley in Thailand. The administration didn't like what he found at the bowling alley either: another cost overrun.

In the 1980s, the Pentagon tried to get Fitzgerald to sign a nondisclosure form as a condition for keeping his security clearances. The form prohibited disclosure of anything that the Pentagon viewed as "classifiable," which had the practical effect of being a gag order on everything. Fitzgerald refused to sign, but 1.7 million others did. He fought the requirement and kept his security clearance. Today, Fitzgerald remains at the Pentagon, refuses to leave and continues to be instrumental in fighting cost overruns. "I have unfinished business," he tells Insight. "Maybe I'll finish it. But where would I go? No one would hire me at a good salary -- not after you commit the truth. That stabs you forever."

Whistle-blowers find their motives more often are questioned than their complaints investigated, producing such outrages as the false Nixon-administration claim that Fitzgerald had committed espionage. Sometimes it has led to physical violence. Among the cases in which there was widespread speculation about this is that of Karen Silkwood, an employee at Oklahoma's Kerr McGee nuclear facility, who died when her car allegedly was forced off the road, or Hanford Nuclear Reservation employee Ed Bricker, who was physically attacked after protesting leaks of radioactive waste. More recently Aldric Saucier, a former senior scientist for the Army Strategic Defense Command, blew the whistle on President Reagan's Strategic Defense Initiative, alleging "systematic illegality, gross mismanagement and waste, abuse of power" and claiming its developmental scientists substituted "political science for the scientific method." Saucier was fired but fought to retain his job, though not before being punched out by a major who believed in the program and was furious that Saucier had broken ranks.

But until legislation is ironed out to offer greater protection to those blowing the whistle, the words of Adm. Hyman Rickover will continue to have a sardonic edge: "If you must sin," the father of the nuclear Navy told a group of Pentagon cost analysts in the 1970s, "sin against God, not against the bureaucracy. God may forgive you, but the bureaucracy never will."

COPYRIGHT 1998 News World Communications, Inc.
COPYRIGHT 2000 Gale Group

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