Marine Corps About-Faces on Security Clearance
Today, GAP is pleased to announce that GAP client and Marine Corps whistleblower Franz Gayl – who exposed the Corps' failure to provide American troops with Mine Resistant Ambush Protected vehicles (MRAPs) in a timely manner – has received notice that his security clearance eligibility has been reinstated, and as such, he will resume his regular work duties soon.
Gayl was exiled from his Pentagon job after Marine Corps officials suspended his security clearance for failing to turn over a flash drive that he did not possess, with a serial number that the manufacturer said did not match any they had on record. This news comes shortly after the Corps failed in efforts to suspend him indefinitely without pay.
This action is a victory for the whistleblower who is credited with getting MRAPs delivered to American troops, which former Secretary of Defense Robert Gates stated saved "thousands of lives." The Corps was set to indefinitely suspend Gayl without pay last month, when the Office of Special Counsel (OSC) – the federal agency charged with protecting federal whistleblowers and investigating their disclosures – filed an October 13 stay request with the Merit Systems Protection Board (MSPB), seeking to prevent the action. That 45-day stay was granted to give the OSC time to investigate the proposed suspension and decide whether to take further steps in the matter. Gayl's attorneys at GAP argued the salary cutoff was an effort to starve Gayl out of the Marines without waiting for an official decision on his security clearance.
During that 45-day period, earlier this month, the Department of Navy Central Adjudication Facility (DONCAF) determined that Gayl was indeed eligible for his top-secret security clearance, and DONCAF renewed it. Following several investigations, the Marines sought his removal because his secure work computer had been tampered with by inserting an unsecure flash disk. There were no witnesses that Gayl inserted the disk, the alleged disk was never found, and its alleged manufacturer denied that the relevant serial number existed.
Retaliatory removal of security clearances is a common form of harassment against national security whistleblowers who challenge security breaches. Without a day in court, it allows employees to be stripped of access to classified information necessary for their job duties. The DONCAF action erased the obstacles necessary for Gayl to do his job. That left the Corps with no choice but to lift the suspension that has exiled him from the Pentagon over the last year. DONCAF issued its November 14 order just a month after Gayl received the Special Counsel's backing. On November 14, the OSC and Marine Corps also jointly moved that the MSPB dismiss the stay action as moot.
GAP and sister organization the Project On Government Oversight (POGO) have championed Gayl's case, most recently delivering two petitions to Secretary of Defense Leon Panetta (with nearly 4,000 signatures combined) demanding that the retaliation against Gayl stop. More on that can be found here.
"I want to express my deepest thanks to all who have supported me throughout this ordeal," stated Gayl. "It goes without saying that absent the continuous advocacy of GAP and POGO, I would have been forced from government service years ago. However, the Office of Special Counsel (OSC) under the inspiring leadership of Carolyn Lerner has been the godsend that enabled this recent turn-around. OSC's determination to request a stay, and the MSPB's willingness to support it, allowed enough time for the Department of the Navy to deliver a considered and favorable security adjudication that now permits me to get back to work. I am as committed as ever to return to my Marine Corps to work hard in support of all Marines in the capacities for which I was hired. Again, without OSC, GAP, POGO, and the MSPB, this renewed opportunity would not be possible!"
GAP Staff Attorney Jonathan Cantú, lead counsel for Gayl, stated "This was a long-fought victory for Franz Gayl, and much deserved for an individual who is personally responsible for saving the lives of many of his fellow Marines. It says a great deal about Mr. Gayl's character that he has fought so long and so hard simply for the ability to go back to work and continue serving his country. Although GAP will have to continue working very closely with Mr. Gayl to make sure the Marine Corps does not engage in any future retaliation against him, and that any previous adverse actions he suffered because of his whistleblowing are adequately remedied, I am very encouraged that the Pentagon appears to have finally come to the realization that Mr. Gayl is not the enemy, and that our military will be much safer if whistleblowers are valued and not exiled.
GAP Legal Director Tom Devine, who supervised the case, stated "We hope Franz Gayl's victory will spark a reversal of deeply-ingrained national security harassment patterns. In my 33 years of experience, this is the first time an agency has changed its mind about backdoor termination through yanking a whistleblower's clearance. The victory would not have occurred without active support from the Office of Special Counsel, which persuaded the Merit Systems Protection Board to block the Marines from starving Gayl out by canceling his salary. Over and over, the OSC is establishing itself as the 'go to' outlet for whistleblowers facing retaliation."
Devine cautioned, however, "Realistically, the Gayl case is the exception that proves the rule. The outcome reflected an extraordinary coalition of politicians, good government agencies, transparency organizations and the media. Justice in clearance cases will not be the rule until Congress finishes enacting the provisions in the Whistleblower Protection Enhancement Act that provide independent due process rights against security clearance retaliation."
Last December the WPEA reform was killed at the last minute, due to a backlash by Republicans on the House Intelligence Committee over due process rights and related provisions. The committee has threatened to kill the bill again if those protections are not removed.
Gayl, a Marine Corps science adviser, exposed the fact that the Corps failed to provide American troops in Iraq with MRAPs in a timely manner. These vehicles better protect soldiers against improvised explosive devices and roadside bombs. Had MRAPs been available to troops, Gayl maintains, they could have prevented many troop casualties and deaths.
In June of this year, shortly before leaving his position, former Secretary of Defense Robert Gates stated that the deployment of MRAPs saved "thousands of lives" in an interview with USA Today. Nonetheless, for his whistleblowing, Gayl has been the target of retaliatory investigations and workplace harassment, including the elimination of meaningful duties and loss of his security clearance.
Dylan Blaylock is Communications Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.