In trying to protect troops and civilians in the Iraq and Afghan wars, Pentagon Science and Technology Advisor Franz Gayl never imagined he would become the target of a war on his home turf. The offense? Gayl refused to turn a blind eye to Quantico’s bureaucracy as it stonewalled the shipment of military equipment that would save the lives of American troops and innocent civilians. Now, after an exhaustive 2.5 year retaliatory investigation into Gayl, his security clearance has been suspended, and he’s been put on indefinite administrative leave without pay. Today the Washington Post ran a compelling piece on the most recent act of reprisal against him.

One of the most serious of Gayl's disclosures related to the bureaucratic delays in sending American troops Mine Resistant Ambush Protected (MRAP) vehicles. Going back to the mid-1990s, the Marine Corps had known that MRAPs offered far greater protection against mines than the Humvees being relied on. Soldiers in MRAPs are at least four times less likely to be injured or killed by an Improvised Explosive Device (IED) blast than soldiers in armored Humvees. Gayl also disclosed that the Pentagon was sitting on the shipment of non-lethal crowd dispersers, which would allow troops to stop, without killing, unruly civilians or suspected terrorists.

Gayl released a report on the human consequences of delaying urgently requested equipment. This led to an IG audit that further substantiated his warnings. Secretary Gates then made rapid MRAP acquisition a top priority, and General David Petraus thanked Gayl for identifying a discrepancy between one of the General’s expressed urgent needs, and inaction by the support establishment. Gayl has been further vindicated by then Senator Biden and ranking member of the Senate Select Intelligence Committee Senator Bond.

So why is it that the nation’s most select intelligence leaders have praised Mr. Gayl for his disclosures, but he remains subjected to unfettered harassment by his superiors?

The Pentagon’s targeted retaliation against Gayl may not have silenced him, but it has sent an unmistakable message to other would-be whistleblowers: Keep Your Mouth Shut. In an interview, Franz captured this intrinsic clashing of priorities “By the very interest of being a civilian bureaucracy, you may have objectives and incentives that are in contradiction to the Uniform Marines in the field. That’s just the psychology of bureaucracy.” Here's the full interview:

It's scary to think that business as usual could trump troop safety. The removed psychology of bureaucracy that Gayl identified has cost hundreds of Marines their lives, and thousands more casualties between 2005 and 2006 -- when Quantico delayed the shipment of MRAPs.

For Gayl, it was never about how much it would cost him personally when he blew the whistle. He acted because the protection of troops should not be contingent on a sale. The retaliation against Gayl has never ceased. But when asked it he would blow the whistle again, after all he and his own family have endured, he responds without pause, “Oh absolutely, I’m a Marine - this is my family and I recognize a great danger and a great threat to my family now and in the future...getting beat up over it, well that’s just part of the price.”

In a letter sent to Secretary Gates today, over 30 organizations ranging from National Security Counsels to Veterans for Common Sense to the Liberty Coalition tied our nation’s security with the well-being of Mr. Gayl: “There are few better illustrations than Mr. Gayl’s ordeal that secrecy enforced by repression is a clear and present danger to America’s national security.” The letter concludes by urging his reinstatement.

If the Pentagon is allowed to purge more like Gayl from our country's frontline of defense, our nation’s security and integrity will continue to be unnecessarily compromised.

A background memo on Franz Gayl can be viewed here
The organizational solidarity letter can be viewed here
GAP's response to comments on the Washington Post article can be viewed here.

• required training for supervisors
• written guidance to conduct investigations under new corporate whistleblower statutes, or
• subject matter experts available to help investigators with technical issues
  
  

Further, the report found that investigators are regularly assigned up to four times their proper caseload, and that timeliness - not quality - is the sole performance standard to evaluate work on whistleblower cases. This sends a message to employees who try to report abuse that OSHA is more concerned with the quantity of cases it closes rather than the quality of its fact-finding and willingness to decide cases in the merits.

These findings should not be taken lightly by new OSHA Director David Michaels, given the broad public health and safety statutes that his agency has jurisdiction over. OSHA oversees whistleblower laws related to the trucking, nuclear power, pipeline, environmental, rail, consumer product safety, medical care, and financial industries. Nor should these findings come as a surprise; an August report by the Government Accountability Office (GAO) also scrutinized OSHA’s whistleblower protection program.

Shanna Devine is Legislative Coordinator for the Government Accountability Project, the nation's leading whistleblower advocacy organization.

© Las Vegas Review-Journal, 2010, reprinted with permission. Photo by John Gurzinski.

However, MacLean was fired three years later, when the Transportation Security Administration retroactively labeled the information he reported with a “hybrid-secrecy” label – “sensitive security information.” MacLean fought back against the retaliation, but several years later he still awaits a decision on his appeal before the full Merit Systems Protection Board, which now has new members appointed by President Obama.

GAP: How did people try to stop you from divulging the information you had, and what barriers did you face going forward?

MacLean: At the time, even with my eight years of federal law enforcement experience, I had no clue what the U.S. Office of Special Counsel was. And if you asked me what that office was, I probably would have told you that was a special agency in the DOJ that prosecuted people for political corruption. So I had no idea that it was a place that whistleblowers could go outside of their agencies to make disclosures. I pretty much thought you could only go up your chain of command, eventually to the Inspector General (IG). Even making disclosures to Congress for me was illegal, because it’s going outside the executive branch.

The IG was well aware of the ridiculous and absurd policies going on with FAMs, because he flew often and would see Air Marshals being paraded in front of passengers. But he ultimately said that the agency is going to do what it wants, and there’s nothing anybody can really do. He essentially advised me not to go forward, so at that point I just decided to talk to somebody. I chose a reporter from MSNBC because he had been doing a lot of reporting on the Air Marshall Service, and seemed to have a very good background of their retaliatory history and general mismanagement.

GAP: Part of your case involves the discrepancy over whether the information was classified or unclassified. Do you think that classification markings are being abused to retroactively mark information as “sensitive” and retaliate against whistleblowers? What needs to be done to change this?

MacLean: In my case and in the Thomas Drake case without a doubt, it is being abused. The text message that was sent to me did not have any markings or labels. It was sent by unsecured means. Four months after firing me, they had to put together some order that retroactively classified the message with this marking.

What’s really scary is that you hear a lot about top-secret security clearances being revoked…but the executive agency is supposed to jump through a lot of hoops to revoke your clearance. In my case, all they did is send one piece of paper by an agency attorney that designated my disclosure with this unclassified information marking. The only appeal I was afforded was to go to an appellate court in my jurisdiction, and that cost me over two years of waiting and almost $100,000 in legal fees. Yes, there is an appeals process – but you have to appeal to an appellate court, which is very expensive and very time-consuming. Most people won’t even bother.

So it’s really imperative right now, with the Whistleblower Protection Enhancement Act (WPEA) before the House and Senate, that a provision is included that doesn’t allow what happened to me to ever happen again. Because any agency that can do this basically cancels out the WPEA.

GAP: What are your thoughts on the attempted 2009 Christmas bombing?

MacLean: It’s pretty ironic that I was fired for letting Congress and the public know that Air Marshals were being taken off long-distance flights when the two attempted bombings (the Richard Lee shoe bomber incident in 2001 and Christmas incident in 2009) were both long haul, U.S. flagged flights to Europe, exactly like those I received warnings about two days before my disclosure. Obviously there is a problem if Marshals are not on these flights that are consistently being attacked.

GAP: What are your thoughts on the status of current air safety?

MacLean: In my opinion, the Obama administration has finally begun to respond by focusing on long-haul flights, whereas the prior administration made Air Marshals fly a bunch of short hop flights in the same day in order to make their numbers look good for Congressional reviews. Under President Obama long-haul flights have rightfully become the primary focus.

GAP: One criticism of the 2009 attempted bombing is that the suspect was not subject to body scans. What do you think of whole body imaging?

MacLean: I think that body imaging could be done correctly. I like the idea but I don’t think it’s a fix-all for the whole problem, and there are privacy issues. You would have to have a male and female officer in a completely separated room, and once the image is viewed and it’s confirmed there is no threat, there should be a way to completely erase it from the system. How long the images should be kept is debatable – but there are ways to erase those images forever so that people’s identities are completely protected. I think non-governmental groups should get together with TSA to make sure that the process does not violate privacy rights.

GAP: Where should Homeland Security be focusing its resources in terms of advancing flight safety?

MacLean: I’m a big believer in behavioral-detection techniques. There’s a big difference between profiling and behavioral detection. Most people who are willing to do the dirty work (e.g. the underwear bomber) are not the brightest people in the galaxy. Other people chose him because he was young and easily manipulated. I believe a good law enforcement officer would have picked out the underwear bomber on this flight because the guy was traveling from Africa to the United States with no bags, had a passport from a foreign country, and had no destination address. At the very least a law enforcement officer should have spoken with him. I would have just simply asked him a few questions and done some secondary screening. When humans lie or they try to cheat somebody, it shows in physical characteristics. I believe it’s a very effective technique. The secret service uses it to protect the President by focusing on that one person that sticks out in the crowd because they’re acting, dressing, or looking different than everyone else. It has nothing to do with skin color or religion – it’s all about behavioral detection.

GAP: How has GAP helped you?

MacLean: GAP has always represented me as the poster boy for what is wrong with the laws right now, and of course GAP has cited my case in Congressional hearings and used it in order to hopefully get an unclassified information provision into a new bill. And of course, [GAP Legal Director] Tom Devine has personally taken my case. After $100,000 in legal fees was blown in my case and my attorneys pretty much disowned me, Tom came in (along with the Federal Law Enforcement Association General Counsel) to save my case, and they’ve been a tremendous help that way.

GAP: Would you blow the whistle again, knowing what you know now? What advice would you give to would-be whistleblowers?

MacLean: At the time, I thought I went through every channel I was supposed to go. And I felt, because the threat was so imminent, that I should use the media as a buffer in order to let Congress know about what was going on. Had I known about the Office of Special Counsel I would have probably gone to them. Had I known GAP existed at the time, maybe I would have gone to GAP. But I consider myself pretty knowledgeable about how the government works, and in all of my years in federal law enforcement I was only ever instructed to call the Inspector General. In the military and in law enforcement there are stickers and signs everywhere that say, “If you have witnessed fraud, waste, or abuse, please call the Inspector General hotline.” And that’s what they orientate you to throughout all of your years.

I have no regrets about what I did. I had an honorable military career. But if somebody came to me right now and wanted to do what I did then, I would caution them that there is a very good chance you’re going to lose your career, your friends and family will suffer, and you will go into a depression. Especially with the way the judiciary system operates with federal whistleblowers. I would definitely warn would-be whistleblowers about what they would be facing.