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by GAP Legal Director Tom Devine and FBI Whistleblower Coleen Rowley. This op-ed also appeared in the Daily Sun News (WA), Lake Sun Leader (MO), Waynesboro News-Virginian, Cumberland Times News (MD-WV), Shawano Leader (WI) and the Capital Times (WI).
Last month, the Supreme Court ruled that public employees can be fired for carrying out duties essential to the proper conduct of their jobs. The Court's findings in Garcetti v. Ceballos mean the government must speak with one voice, even if that voice is a lie. But what about the truth, especially when the government falsifies or covers up its own betrayal of public trust?
Richard Ceballos was a Los Angeles county prosecutor who discovered a deputy sheriff may have lied to obtain a search warrant. After he alerted superiors, they ordered him to keep quiet. Nonetheless, as legally required, he notified defense attorneys of the evidence. In response, Ceballos was removed from the prosecution's team, demoted and transferred. In a 5-4 decision, the Court upheld this retaliation.
Discarding longstanding First Amendment free speech rulings that involve matters of public concern, the Court canceled that right where it counts most - on the job. This decision covers all government workers - federal, state or municipal.
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by GAP client Gabe Bruno and GAP Legislative Representative Adam Miles
On May 11, 1996, ValuJet Flight 592 crashed into the Florida's Everglades, killing all 110 passengers on board. The tragedy demanded a dramatic shift in the Federal Aviation Administration's approach to air safety. But a decade later the legacy of Flight 592 is increasingly clear: After initial soul searching, the FAA has relaxed air safety oversight, not strengthened it, and harshly retaliated against internal dissent.
The National Transportation Safety Board's 1997 ValuJet accident report found that the FAA's lax safety oversight of the rapid-growth, low-cost airline contributed to the crash. The FAA's own "90-Day Safety Review" concluded that the agency was unprepared. The embarrassing findings cost FAA Administrator David Hinson his job.
The agency should have implemented the ambitious recommendations. Instead, behind public window dressing, senior FAA managers worked feverishly to avoid disrupting business as usual and future accountability by harassing those who took their duties seriously.
When the FAA transferred the oversight responsibility of ValuJet from Atlanta to Orlando for its merger with AirTran Airways, I became the FAA official primarily responsible for preventing the tragedy's recurrence. A key responsibility was correcting fraudulent certifications of airline mechanics, after a FAA contractor certified thousands based only on paper exams -- like giving a drivers license without a road test. The contractor was eventually convicted for selling certifications without even issuing the paper test.
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by GAP Legal Director Tom Devine and GAP Communications Director Dylan Blaylock This editorial also appeared in the: Summit Daily News (CO), Daily Herald (TN), Couer d'Alene Press (ID), Spectrum and Daily News (UT), and Key West Citizen (FL).
In 1530, Nicholas Copernicus wrote a scientific work suggesting that the universe did not revolve around the earth. Unfortunately, out of fear of political and social retaliation, he failed to widely publish his findings, robbing the world of scientific progress. One-hundred years later, Galileo realized the value of Copernicus’ theory and publicized it. Sadly, Galileo’s actions cost him his freedom, as he was found guilty of heresy and subjected to house arrest by officers of the Inquisition.
Stifling or censoring new, fact-based scientific theories due to political or religious beliefs is counterproductive. Actions like these keep society stagnant while an open exchange of ideas supports economic, political and intellectual progress. Public servants should advance progress, not block it.
Fast-forward to present day America. Right now, government bureaucrats are gagging America’s scientists from speaking with anyone outside agency walls unless granted advance permission. Public affairs officers censor and rewrite scientific reports. For instance, some agencies have even given orders to avoid using the term “global warming.”
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by Dylan Blaylock, GAP Communications Director, and Coleen Rowley, retired FBI agent and whistleblower
Even as the public focuses on President Bush’s most recent Supreme Court nomination, the business of the court goes on. And this week, it will take up a First Amendment case, Garcetti v. Ceballos, that is crucial not only to government workers across the country, but to all Americans concerned about free speech and national security.
While a deputy district attorney in Los Angeles County, Richard Ceballos investigated allegations of police misconduct in a case his office was prosecuting. After finding evidence suggesting that a deputy sheriff might have lied in order to obtain a search warrant, Mr. Ceballos drafted a memo to supervisors detailing the wrongdoing and recommending that they drop the case. After supervisors proceeded with the prosecution, Mr. Ceballos informed the defense of his findings, as required by law. He was subsequently removed from the prosecution’s team, demoted and transferred to a different office.
Mr. Ceballos filed suit claiming that he was retaliated against in violation of his rights. His boss, District Attorney Gil Garcetti, and the California State Association of Counties argued that free speech protection only extends to public employees when an employee expresses his personal opinions - those being what he advocates as a citizen, rather than an employee. After the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled in favor of Mr. Ceballos, his opponents pushed for the nation’s highest court to take the case.
Should the First Amendment protect a public employee’s purely job-related speech? The answer will affect the rights of millions of public employees, from police officers to public hospital workers. And in particular, the principle decided here will dictate how whistleblowers are treated in government offices where the reporting of mismanagement and fraud are vital to our country’s well-being, places like intelligence agencies, the Department of Energy and the Federal Emergency Management Agency.
Presidential administrations seem more often than not to make loyalty paramount. While loyalty in marriage, family and among friends is the glue that binds society, government employees owe their ultimate allegiance not to their supervisor or president but to America: its Constitution, laws and citizens.
The Standards of Ethical Conduct for Employees of the Executive Branch, regulations by which all federal workers are required to abide, clearly state that employees "shall disclose waste, fraud, abuse and corruption to appropriate authorities."
But no law effectively protects federal workers who report malfeasance as part of their job duties. And coverage of state workers is patchy. As a result, those workers we depend on for our safety have often faced a terrible conundrum: either remain quiet and allow fraud and wrongdoing to occur, or speak out and risk retaliation. When one of us (Ms. Rowley) spoke out about the F.B.I.’s pre-9/11 lapses, it was likely only the leaking of her memo to the press that saved her from professional retaliation.
For hundreds of other nameless government truth tellers who tried to work solely within the system, however, there has been no such happy ending. Instead, they have been left with the incongruity noted by the appeals court judge who ruled in favor of Mr. Ceballos: that while they might be protected if they took their problem to the press, they would not be protected if they tried to remedy the problem within the system.
With so much at stake in national security, is that a situation we want to let stand? A ruling against First Amendment rights would muzzle those who know security issues better than any oversight body officials can hope to create. We cannot rely solely on Congress to keep tabs on absolutely everything happening under them - such a task is impossible.
Supported by the Bush administration, lawyers for Mr. Garcetti and the California counties association are rehashing arguments that government managers have always used against granting these protections to employees - namely that providing these rights might lead to management paralysis and a deluge of litigation. But the Supreme Court in the past has dismissed these unfounded predictions, realizing that our court system is equipped to weed out frivolous lawsuits. These managers should be praising an early warning system that detects problems and maintains departmental integrity.
Now the court has a chance to clarify previous legal precedents and set the record straight. America should be encouraging those civil servants who step forward to make our country stronger. Cutting off protection is a recipe for disasters of mass proportions.
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by Louis Clark, GAP President
"Deep Throat" exposed a deep criminal conspiracy. For reasons that remain cloudy, the president periodically sent out a team of former spy operatives to break into the offices of his political enemies, steal documents and tap telephones. The inept gang failed. Once arrested, they refused to talk and accepted large cash payments for their silence. It took two crime beat reporters, guided by FBI whistleblower Mark Felt, to unravel the conspiracy of such key crime figures as the president, the attorney general and FBI director.
As one might expect, many of the original conspirators and their allies have used the recent "outing" of the FBI whistleblower as an opportunity to call him a "traitor." They have speculated that he broke FBI guidelines or regulations, asserting that he was disloyal to his "Commander in Chief." One would expect defensive anger from the hundreds of people who were either a part of, or associated with, the organized crime operation the White House ran involving members of the Cabinet and their subordinates. Unfortunately, others have also questioned Mark Felt’s motives, wondering whether he was angry for having been passed over in the selection of the new chief of the FBI.
This response is troubling, since what we do know about Mark Felt clearly qualifies him for the status of hero. He saved the country from powerful criminal elements, including Felt’s immediate boss who regularly impeded the FBI’s investigation, destroyed evidence, and provided briefings to those who were actively engaged in the Watergate cover-up. The decision to blow the whistle is rarely easy. It requires courage. Whistleblowers often must decide between violating agency gag rules and following their conscience. If they remain anonymous, they are subject to criticism for failing to stand up publicly for principle. They are also at risk for firing without legal recourse, as was Mark Felt who almost lost his job because he was merely suspected of leaking information. On the other hand, if they decide to reveal their identity, many people will speculate that the whistleblower is trying to profit from their revelations.
In his book, "Whistleblowers: Broken Lives and Organizational Power," G. Fred Alford describes how overwhelmingly difficult it is to publicly expose wrongdoing. Most corrupt and problematic situations are far more complex than is easily understood. Whistleblowers are often unsuccessful unless enterprising journalists, such as Bob Woodward and Carl Bernstein, are willing to invest the time, and publishers the space, to decipher a controversy and raise concerns to the public. Those who oppose whistleblowers often question the motives involved.
In this way, the wrongdoers are attempting a smear campaign aimed at diverting public attention away from the underlying scandal. Since "Deep Throat" cautiously and effectively guided two inexperienced reporters to the truth about their president, there have been thousands of whistleblowers in corporate America, state and local government, and throughout the federal government. We as Americans have come to rely on their messages to learn the truth about illegal practices, unsafe conditions, environmental threats and even national security dangers. These individuals deserve praise and gratitude, not half-baked speculation about what possible dark motives might have inspired them.
Like Watergate, scandals frequently involve hundreds of people who remain silent, giving criminals free reign for their enterprises. Perhaps many who question whistleblowers are actually defending their own silence. After all, if we cannot identify with the whistleblowers, perhaps we feel better when we make the whistleblowers seem flawed. Now that we know who "Deep Throat" is, we should revisit the lessons of Watergate, chief among them being that no person is above the law and evil triumphs when good people say and do nothing. Furthermore, we should come to the aid of these heroes who risk their careers because they provide witness for truth, integrity and accountability. We should honor those on the frontlines of moral conflict who choose to follow their consciences despite the personal peril in doing so.
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by Louis Clark, GAP President. This editorial also appeared in the Topeka Capital-Journal
After 9/11, the President called on all Americans to come forward whenever they observe security threats. At every major airport in the nation, there are constant reminders over public address systems to report abandoned parcels and other suspicious activities. In a dictatorship, any such government recruitment of informants is both disquieting and threatening. In a democracy, it is akin to the government sharing responsibility with citizens for the common defense. That’s not unlike national hero Paul Revere’s courageous gallop through the streets of the rebellious colonies to warn of threats on the horizon. National security is the responsibility of every citizen.
Courageous and patriotic whistleblowers have responded to the president’s call to report security vulnerabilities in record numbers. They have raised these up threats as well as abuses of authority and other forms of corruption within their government workplaces, with their superiors at military facilities, to their members of Congress and occasionally, out of frustration, to the media.
As a result our elected officials and we Americans have learned about major problems needing immediate attention. The list is long and includes:
- The torture of Iraqi prisoners at Abu Ghraib;
- The vulnerability of nuclear weapons facilities and nuclear power plants to terrorist attack;
- The fudging of antimissile defense testing to hide the fact that it is not possible to tell the difference between decoys and armed missiles;
- The failure of the government to adequately inspect incoming ships and cargoes at our major ports;
- The failure of the FBI before 9/11, because of bureaucratic myopia, to allow its agents to investigate suspicious activity at flight schools;
- Past and current security concerns at not only our ports, but also our borders and airports.
Government studies, congressional hearings, numerous investigations, and presidential commission findings have backed up the whistleblowers on this list of major security deficiencies. Unfortunately, no whistleblower has yet emerged to explain how, despite a massive expenditure of effort and resources, none of the intelligence agencies were able to conclude that Iraq lacked weapons of mass destruction.
Adding up all the key information that we know because of whistleblowers, and considering the intelligence disaster because of a lack of whistleblowers, one comes to one logical conclusion: Whistleblowers are critical for national security. Without them we are not only at risk, we could also be making vital decisions, such as going to war, under false pretenses. As we do with any other true national treasure, we must preserve whistleblowers from harm. The reason none emerged from the ill-fated intelligence meltdown on weapons of mass destruction is simple. Surveys of public employees have reported that there are two primary reasons potential whistleblowers who witness corruption do not step forward. They fear reprisal and secondly, they presume that speaking out is futile because key government officials will not listen or do anything about the identified problem.
Fear of reprisal is justified. Nearly all of the key national security whistleblowers who have come forward since 9/11 were threatened, harassed, disciplined, or fired. Some who saved their careers did so only because powerful members of Congress stepped up and defended them against irate bosses. There are currently no legal whistleblower protections because nearly all of the 15 intelligence agencies are exempt from regular civil service legal protections. But within the regular federal civil service system, those protections have ceased to exist anyway. Not only federal employees, but also all those who care about national security, are victims of a series of administrative decisions that by law cannot be reviewed in any federal court other than the US Supreme Court, which refuses to hear them.
A bipartisan coalition in Congress is determined to act. It recognizes that to preserve national security federal employees must be free to warn about imminent dangers and Congress must remain a viable place to take these warnings. The legislation that is emerging will provide legal protection to federal employees who report to Congress about national security threats. These modern-day "Paul Reveres" must have the right to defend themselves in federal court.