By Tom Devine and Tarek Maassarani
Largely under the public radar screen, the last decade has seen a legal revolution in corporate freedom of speech. Ironically, private sector whistleblowers now have far stronger rights than government employees to challenge institutional abuses of power that betray the public trust.
The implications are significant from every direction. To illustrate, citizen groups can work more freely with whistleblowers as the public's eyes and ears. Corporations who cling to repressive traditions risk unprecedented consequences. And there will be new opportunities to prevent avoidable disasters and attack internal fraud for leaders who listen to their messengers, instead of professionally killing them.
The breakthrough in corporate freedom of dissent began in 2002 with the Sarbanes Oxley law ("SOX"), which protected shareholders of publicly-traded corporations from unscrupulous managers who risked their investments through fraud. It since has spread to ten other major laws, covering the vast majority of the labor force -- the financial, transportation, health care, defense contractor, nuclear and food industries, as well as all retail commerce. The laws consistently protect workers who publicly or privately challenge wrongdoing, provide recourse through fair rules of play, offer jury trials if there is no speedy administrative decision, provide compensatory damages to make reprisal victims whole, and shield against gag orders or the waiver of legal rights required by many firms as a prerequisite for employment.
The potential benefits to the public are staggering. Even without rights, courageous whistleblowers have forced the withdrawal of dangerous prescription drugs such as Vioxx, whose 50,000 victims rivaled America's casualties in the Vietnam War; shut down toxic incinerators burning dioxin, arsenic and other poisons next to churches and schoolyards; prevented countless food poisoning epidemics at the hands of a deregulated government inspection regime; and abated nuclear power plant accidents and massive releases of radiation into urban water supplies.
By Robin Paggi
While conducting harassment training at a client's facility recently, I noticed a poster on the wall encouraging employees to call a whistle-blower hotline if they had concerns about the ethical conduct of members of management or their co-workers.
What prevents employees from simply talking to their supervisors when they have these kinds of concerns? The answer is simple -- the fear of being retaliated against, and for good reason. In its 2009 National Business Ethics Survey, the Ethics Resource Center reported on the types of retaliation experienced by employees who reported misconduct, which included being:
* Excluded from decisions and work activity (62%)
* Given the cold shoulder (60%)
* Verbally abused by managers (55%)
* Almost lost job (48%)
* Not given promotion or raise (43%)
* Verbally abused by other co-workers (42%)
* Relocated or reassigned (27%)
* Other forms of retaliation (20%)
* Demoted (18%)
* Physical harm to person or property (4%).
Perhaps it is because whistle-blowing puts employees at risk of retaliation that the Dodd-Frank Act was recently passed. In her article "Whistle-Blowers: Threat or Asset?" Dori Meinert explains that the law "significantly increases rewards and protections to those blowing the whistle on securities violations (which) affects publicly held companies and their private subsidiaries and affiliates."
By Josh Gerstein
The Justice Department has dropped its long-running criminal investigation of a lawyer who publicly admitted leaking information about President George W. Bush’s top-secret warrantless wiretapping program to The New York Times — disclosures that Bush vehemently denounced as a breach of national security. They also stoked a congressional debate about whether the government had overstepped its authority as it scrambled to respond to the Sept. 11 terror attacks.
The decision not to prosecute former Justice Department lawyer Thomas Tamm means it is unlikely that anyone will be charged for the disclosures that led to the Times’ Pulitzer Prize-winning story in December 2005, revealing that after the Sept. 11 attacks, Bush ordered the interception of certain phone calls and email messages into and out of the U.S. without a warrant — a move many lawyers contend violated the 1978 law governing intelligence-related wiretaps.
The petering out of the warrantless wiretapping leak investigation amounts to a low-profile and ambiguous conclusion to an episode that dominated the headlines in the second half of the Bush administration. While Washington is immersed in the latest round of WikiLeaks revelations and the investigation into new disclosures of a trove of government secrets, the dropped wiretapping investigation amounts to the final chapter of the most significant leak of the Bush era.
The Justice Department would not discuss the current status of the probe, which began in late 2005 after the Times story was published with a formal leak complaint from the National Security Agency. However, Tamm’s attorney, Paul Kemp, told POLITICO he and his client were informed “seven or eight months ago” that the investigation into Tamm was over.
The information was relayed during a meeting with the prosecutor handling the case, William Welch, Kemp said. The Justice Department recently issued Tamm a letter, confirming that the probe had concluded, the defense attorney said.
Prosecutors also appear to have lost interest in a former National Security Agency official who also publicly acknowledged being a source for the Times on the warrantless wiretapping story, Russell Tice. An attorney for Tice, Joshua Dratel, said it has been several years since prosecutors contacted him about the investigation.
“I have not heard anything from them in a very, very long time,” Dratel said Monday. “I haven’t been concerned about it in a long time. … I never thought [Tice] had anything to worry about.”
Asked about the apparent move to drop the inquiry, Dratel said: “I think it’s the right decision.”
By Gloria Lau
Although CEOs have a reputation for being smart, they don't always know what's going on at their companies. By the time a person hits that level, many layers of management separate him from employees. Workers may fear jeopardizing their careers if they tell him the hard truth. This is where good whistle-blowers can help.
"If people have the freedom to warn, they can help their (employers) prevent avoidable disasters so things don't spiral into finger-pointing and litigation," said Tom Devine, legal director at the Government Accountability Project, an advocacy group in Washington.
In 2007, PricewaterhouseCoopers polled 5,400 execs about losses from fraud and reported that 43% of wrongdoing was learned via tips from folks inside and outside firms. In contrast, internal auditors found 19% of the deceit.
"Any corporate leader who silences or terminates the messengers . .. is attacking shareholders' investments," Devine told IBD.
WorldCom and Enron were among companies that didn't heed warnings. How can you encourage more honesty?
By Sarah Brumfield
WASHINGTON (AP) — A former National Security Agency employee accused of mishandling classified information warned Wednesday that the United States is elevating national security to a state religion and that whistleblowers and dissenters are at risk of being marked as traitors.
Thomas Drake was awarded the Ridenhour Prize for Truth-Telling on Wednesday by the Fertel Foundation and the Nation Institute. The organizations said he risked his career and freedom when he "exposed the ethical, budgetary and acquisition shortcomings at the NSA," including a multibillion-dollar program that was designed to analyze communications data.
"I have already paid a frightfully high price for being a whistleblower, but worse still lies ahead of me," he said in a speech at the award ceremony, the first time he has spoken publicly about his circumstances since being charged. "I now stand before you as a criminal defendant with my own life and liberty very much at stake."
Drake said the government is making whistleblowing a crime, but he won't "live in silence to cover for the government's sins."
He is charged with violating espionage laws without being accused of spying. Instead, he's accused of shredding documents, deleting files from his computer and lying to investigators. His trial is set to begin in June in U.S. District Court in Baltimore.
Drake was charged after an investigation into leaks of classified information to a newspaper. His supporters claim he's being punished for blowing the whistle on inefficiencies and mismanagement at the NSA.
"My case is centered on a government prosecution bent not on serving justice, but on meting out retaliation, reprisal and retribution for the purpose of relentlessly punishing a whistleblower," he said. "Furthermore, my case is one that sends a chilling message to would-be whistleblowers: Not only can you lose your job, but also your very freedom."
The administration that promised more openness with government information has instead taken a tougher stance on whistle-blowing than any other White House in the last four decades.
By Noel Brinkerhoff
Since taking office, President Barack Obama’s Department of Justice
has filed criminal charges in five separate cases involving unauthorized distribution of classified national security information to the media. Before Obama, the government prosecuted a total of three cases during the previous 40 years.
The two highest profile cases being pursued currently involve WikiLeaks; one against founder Julian Assange and another against Army Private Bradley Manning who is accused of turning classified military and diplomatic files over to the whistle-blowing website.
A third case, begun during the Bush-era, is against former National Security Agency
official Thomas Drake, who was charged with willful retention of national defense information after allegedly leaking information about waste in the government’s secret surveillance program to the Baltimore Sun
in 2006 and 2007.
Another trial will decide whether former CIA
officer Jeffrey Sterling leaked information about a covert operation to sabotage Iran
’s nuclear weapons program.
The Obama administration also prosecuted FBI contract linguist Shamai Leibowitz for sharing classified documents with a blogger and has accused State Department contract analyst Stephen Kim of giving a Fox News reporter secret information regarding U.S. policy regarding North Korea.
The Obama administration’s hard-line stance may end up having a chilling effect on others who want to expose wrongdoing on the government’s part, says Jesselyn Radack, a former Justice Department attorney now with the Government Accountability Project
Radack told Politico that it’s “very destructive and damaging to be going after people for leaks that embarrass the government,” adding the policy is “a disturbing one, particularly from a president who got elected pledging openness and transparency—and someone who also got elected thanks to a lot of [Bush-era] scandals that were revealed by whistleblowers.”
By Josh Gerstein
The Obama administration, which famously pledged to be the most transparent in American history, is pursuing an unexpectedly aggressive legal offensive against federal workers who leak secret information to expose wrongdoing, highlight national security threats or pursue a personal agenda.
In just over two years since President Barack Obama took office, prosecutors have filed criminal charges in five separate cases involving unauthorized distribution of classified national security information to the media. And the government is now mulling what would be the most high-profile case of them all - prosecuting WikiLeaks founder Julian Assange. That’s a sharp break from recent history, when the U.S. government brought such cases on three occasions in roughly 40 years.
The government insists it’s only pursuing individuals who act with reckless disregard for national security, and that it has an obligation to protect the nation’s most sensitive secrets from being revealed. Anyone seeking to expose malfeasance has ample opportunity to do so through proper channels, government lawyers say.
But legal experts and good-government advocates say the hard-line approach to leaks has a chilling effect on whistleblowers, who fear harsh legal reprisals if they dare to speak up.
Not only that, these advocates say, it runs counter to Obama’s pledges of openness by making it a crime to shine a light on the inner workings of government – especially when there are measures that could protect the nation’s interests without hauling journalists into court and government officials off to jail.
Click here to listen to the story.
On the Media host Bob Garfield discusses the 10-year anniversary of the WNYC show On the Media, how technology has transformed the media landscape in the last decade, and what we can expect going forward. He’ll also talk about On The Media’s project Blow The Whistle, a collaboration with Government Accountability Project to uncover the identity of the senator who last December put an anonymous hold on the Whistleblower Protection Enhancement Act (Bill S.372), essentially killing it at the last minute.
Last April, the DOJ served a subpoena on New York Times reporter James Risen, demanding to know his source for a story he published in his 2006 book regarding a "reckless" and horribly botched CIA effort to infiltrate Iran's nuclear program. That subpoena had originally been served but was then abandoned by the Bush DOJ, but its revitalization by the Obama administration was but one of many steps taken to dramatically expand the war on whistleblowers being waged by the current President, who ran on a platform of "protecting whistleblowers":
Those pretty words have given way to the most aggressive crusade to expose, punish and silence "courageous and patriotic" whistleblowers by any President in decades. As the Federation of American Scientists' Steven Aftergood put it, "They’re going after this at every opportunity and with unmatched vigor." And last May, The New York Times described how "the Obama administration is proving more aggressive than the Bush administration in seeking to punish unauthorized leaks." This war has entailed multiple indictments and prosecutions of Bush-era leaks which exposed various degrees of corruption, ineptitude and illegality. And, of course, the Obama administration's preoccupation with destroying WikiLeaks -- which has led it to boast of efforts to prosecute the group for publishing classified information (which other media outlets do every day), target WikiLeaks supporters with invasive harassment, and even subpoena the Twitter accounts of several WikiLeaks associates, including a sitting member of the Icelandic Parliament -- has been well-documented.
By Nedra Pickler
WASHINGTON (AP) -- The former government protector of whistle-blowers who admitted to criminally withholding information from Congress asked a judge Thursday to withdraw his guilty plea to avoid mandatory jail time.
Scott Bloch said in a court filing that he did not know when he pleaded guilty to a misdemeanor charge of criminal contempt of Congress 10 months ago that he would face a minimum of a month behind bars.
U.S. Magistrate Judge Deborah Robinson ruled two weeks ago that the law requires the imprisonment. Prosecutors joined Bloch in unsuccessfully protesting the ruling. They argued that others who have pleaded guilty to the charge got probation, including baseball star Miguel Tejada last year.
The prosecutors wrote in court papers that they are negotiating another deal with Bloch that would allow him to plead guilty to a different offense.