By Maha Hilal
On Friday, July 20th, as part of our ongoing interview series with leading practitioners and scholars in the field, I interviewed Beatrice Edwards, Executive Director and International Director and Shelley Walden, International Program Officer from the Government Accountability Project. I am thrilled to have had this opportunity to interview them because I worked with both of them at GAP and really admire the work that they are doing to protect whistleblowers.
Before joining GAP, Ms. Edwards monitored loans and projects of the World Bank and the Inter-American Development Bank for Public Services International, a global labor federation of public sector unions. In that capacity, she worked to ensure the Banks’ compliance with international labor conventions and national employment laws. She has also served as a Senior Specialist for Social and Economic Affairs at the Organization of American States, and is a contributing writer for the Texas Observer. She holds an M.A. in Latin American Studies from the University of Texas and a Ph.D. in Sociology from American University, where she teaches from time to time.
Shelley Walden serves as the International Program Office for GAP, where she monitors whistleblower protections at numerous Intergovernmental Organizations (IGO), including the World Bank, Inter-American Development Bank, International Monetary Fund, United Nations Secretariat and UN Funds and Programs. Shelley investigates whistleblower disclosures and retaliation claims, evaluates IGO whistleblower policies and internal justice systems, publicizes IGO accountability issues and advocates for reforms to ensure that IGO whistleblowers are protected and that their disclosures are addressed, among other duties.
Shelley started at GAP in 2004 as the development associate. She has co-authored reports about racial discrimination at the World Bank and Inter-American Development Bank, the Foundation for the Future and its connection to the World Bank and Bush administration officials, the United Nations Office of Staff Legal Assistance, and the World Bank's Peer Review Services. She has written extensively on the strengthening of United Nations whistleblower protection policies and its internal justice system and was published in the book "A Global Agenda: Issues Before the United Nations 2009-2010." She has spoken about IGO whistleblower protections at labor events organized by the Federation of International Civil Servants' Associations and the World Food Programme Staff Association. She has been quoted in Reuters, the Daily Nation and Anti War Radio.
Prior to joining GAP, Shelley worked as a freelance reporter for The Chapel Hill Herald and interned in Bolivia with Save the Children (in collaboration with the Foundation for Sustainable Development), where she initiated a housekeepers' rights campaign. She was the 2004 SERVAS essay winner and delegate to the United Nations Non-Governmental Organization Conference. Shelley graduated with distinction from the University of North Carolina at Chapel Hill with a Bachelor of Arts in Journalism and International Studies. She studied abroad in Spain and Ecuador, and has traveled to 25 countries.
What is GAP's history and how did it get started?
Beatrice: GAP is 35 years old. It was founded in response to the Watergate crisis and scandal where it became clear that there were people inside the White House and other federal agencies who were willing to, and who wanted to disclose what the President's people were doing but who had no protection legally if they did that and so the crisis pointed out the need for some kind of legal protections for whistleblowers in order to avoid what became really a constitutional crisis for the United States.
What areas are you currently working in (Program areas)?
Shelley: GAP focuses on international reform, food integrity, public health, corporate accountability, environment, and national security & human rights, and we have legislative, litigation, and communications components.
What areas of work have you found to be the most challenging and why?
Beatrice: I'd say two: one is legislation, because we did after ten years obtain whistleblower protection legislation, but the courts have weakened the interpretation of the legislation since the whistleblower protection act was passed in 1989 and our legal director has been working really intensely for at least 10 years now to improve legal protections through the whistleblower protection enhancement act, and it's been very, very difficult because no one wants to go on the record opposing whistleblower protections, but secretly or behind closed doors, there are efforts to weaken the legislation or block it. And the other difficult area is international because we deal with the international organizations, which are not bound by any national legislation law. So everything has to be negotiated directly with the institution and the institution obviously has a vested interest in protecting its own prerogatives for dealing with whistleblowers.
Can you talk about GAP's litigation work? In particular what are some examples of cases that GAP has worked on? Have any of these cases influenced subsequent policies/legislation from the defendants?
Beatrice: In the litigation program, well we do two kinds of legal work, one is litigation itself where we are directly representing a client in court or, in the case of federal government whistleblowers, we go to the Office of Special Counsel. In the last year, I would say we have achieved some important advances in whistleblower protection through cases that have gone to the Special Counsel and I think one of them was just recently settled – the name of the plaintiff was Kim Farrington and we can explain that case, the interpretation if you're interested. One of the ways in which the whistleblower protection act was weakened was a decision that set out a ruling where if your disclosure involved misconduct or abuse of authority that you discovered in the course of your normal duties, then your disclosure was not protected. So what that means if you're an auditor or an investigator or a legal officer of a corporation or in the government then anything you report as misconduct is not a protected disclosure. So oversight officials' protection, that was an important one. So the "normal duties" ruling eviscerated the law. However, the Kim Farrington decision just narrowed the definition of "normal duties." If what you're doing when you discover misconduct is a sporadic duty and not something you do routinely, not something you do regularly, then it is not a part of your "normal duties," and it is protected. So the Farrington decision is significant because the lack of protection for disclosures made in the course of performance of "normal duties," defined broadly, really cut the legs out from under protection for whistleblowers generally.
And when was this case?
Beatrice: It was just decided earlier this week and it's not a court case, it's in a hearing board because many of these cases are decided in administrative hearings. If you are a federal government whistleblower, you go first to the Merit Systems Protection Board (MSPB) and at a certain point you then go to federal court, but it's a long way down the road. If you are a corporate whistleblower, you go first to the Occupational Safety and Health Administration in the Department of Labor and at some point you can go to court, so this case was decided in an administrative hearing not in a court.
Will it go any further?
Beatrice: I don't think so. I think they regard this as the conclusion.
Shelley: In response to the latter part of your question, have any of these cases influenced subsequent policies/legislation, sometimes that happens, but actually a lot of times it's through advocacy, public pressure and the media that we're able to get the most change. For example, several prescription drugs that Dr. David Graham at the Food and Drug Administration (FDA) blew the whistle on were subsequently taken off the market because they were unsafe for the public. But that wasn't done through litigation; it was done through the court of public opinion. We are able to make some changes through litigation too, but they're not always through litigation. Another case you may be interested in is Franz Gayl's. He blew the whistle on how the Marines were delaying the use of Mine Resistant Ambush Protected vehicles (MRAPs) in Iraq, even though they could save lives by protecting troops against explosives. So he was very critical of that and actually they did eventually end up using those MRAPs in Iraq as a result of his whistleblowing, but he was retaliated against pretty strongly as a result. GAP has helped him fight that retaliation.
Beatrice: I think the most recent thing is that the Office of Special Counsel prevented his employer from revoking his security clearance because they weren't terminating him, but they were taking a step towards terminating him. If they would revoke his security clearance, then he couldn't do his assigned duties and then they would have a justification for terminating him.
One project that I had the opportunity to work on was focused on the internal justice system on the United Nations. Can you describe some of the problematic aspects of the current justice system in the UN with respect to whistleblowers?
Shelley: The first thing I'll say is that actually in the last month, the United Nations Dispute Tribunal has issued two very positive decisions for whistleblowers and we are very excited about that. The first one involved a peacekeeping mission in Kosovo and they found that the UN Ethics Office had misapplied the burden of proof in that case and that they have to do more to protect whistleblowers. That was important, because the Ethics Office has ultimately substantiated retaliation and recommended relief in only 1/297 cases that it has reviewed (and it wasn't that case). So it's important that the judges are starting to realize that whistleblowers are not being treated well in the system and that there needs to be more oversight and it looks like the judges are going to provide some of that oversight, so that's great. The second case was a UN-Habitat case, it wasn't in a UN peacekeeping mission, and in that case, the statute of limitations had expired so the case itself wasn't receivable but the judge said that it was an extraordinary case and that the Secretary General should do something for this whistleblower and should intervene. The judge also said that whistleblowers deserve special status and the UN should be doing more to protect them. So we were really happy with those decisions.
Shelley: Now in terms of problems with the justice system, one thing that that second case raised was that the statute of limitations is much too short, so you have to basically contest a decision within 60 days of it occurring. In whistleblower cases, in best practice whistleblower laws from around the world, six months is the minimum and a year is usually more in keeping with best practices. Now, in terms of what some people have said in our interviews, in terms of what some problems are, we hear again and again from everyone that lack of resources is an issue for the justice system. It is under resourced. The independence of judges is another thing that people raised. There were concerns about remedies not being sufficient to make the whistleblowers whole, and that's a big one. That even when you win your case, you're not going to necessarily be the same as you were before you blew the whistle and the best practice is that a whistleblower should be made whole and if they lose their job, they should be reinstated and that's not guaranteed. So those are some concerns we have. Our report, when it comes out, will list a lot more, because there are a lot of different things that people have raised, but in terms of whistleblowers specifically, those are a few of our big concerns.
Can you describe some of GAP's broader work in regards to IGO's and why monitoring these organizations is so important?
Beatrice: The institutions that we monitor are the multilateral development banks and the UN system, which includes the UN Secretariat that Shelley's describing and the UN funds and programs. There are differences in why each organization is important. But with respect to the UN, the UN, I think, and I'm sure others may think so too, the UN kind of sets the pace for what other international organizations will do with respect to anti-corruption measures. So if the UN adopts an anti-corruption measure like whistleblower protections, then the other international organizations and its own specialized agencies will also do that. So it was the UN adopting the policy in 2005 that kind of pushed the development banks to do the same.
Beatrice: With the development banks, they are a bad combination of factors in terms of creating a potential for corruption and fraud. They are operating at an international level, so they have a global reach, they operate with governments, some of which are very transparent and accountable, some of which are not at all. They deal with budgets of tens of billions of dollars annually and there is no oversight of them outside the institution. So it's secrecy, power, and money altogether and that is just a recipe for abuse of authority and fraud and so because of that convergence of characteristics, I think it's probably reasonable to assume, obviously empirically we don't know, but it's reasonable to assume that your best source of information and accountability is going to be a staff member because of the secrecy. No national parliament has access to information about how money is spent in particular projects. I mean they provide documentation, but nobody outside the organization has the ability to verify that the documentation is accurate. So we get say, a whistleblower who comes to us and says here's what the papers say, but I've been there and I know that four out of five schools don't exist and that's the kind of intelligence you would get from somebody on the inside, that nobody else is going to be able to get. The other thing that is probably worth mentioning is that these institutions promote themselves as poverty fighting institutions, so to the extent that the money is diverted into the pockets of the not poor, those people who are depending upon World Bank or IDB loans for education, health care or housing are deprived. It's not like its surplus funding for them.
How is the work of GAP related to conflict/peacebuilding issues and countries and how does it affect countries in conflict, post-conflict settings?
Shelley: We've had some whistleblowers from peacekeeping missions approach us. We are assisting one now, and we've assisted a few in the past around 2005. One concern we have is the lack of whistleblower protection for people in the peacekeeping missions, specifically UN police officers and also peacekeepers themselves because they are not protected by the UN whistleblower policy. So that's one thing that we want to address. We are doing this study right now which will look into the overlap between the internal justice system at the UN and conflict and peacebuilding issues. In terms of the international program, we've also had whistleblowers raise concerns about projects in conflict settings or post-conflict settings and so we are working on corruption issues in those countries. Wolfowitz and Iraq would be an example too, which Bea can explain more.
Beatrice: There was a clear indication that Paul Wolfowitz when he was president of the World Bank, was trying to take the bank into Iraq, by deeming it a post-conflict situation-this was 2006, when the hostilities were in fact escalating. It was difficult to prevent that, because again the institution has no real oversight except for its own board of directors which does not typically adopt an adversarial stance in dealing with Bank management. The other thing I was going to say about conflict and post-conflict settings -- we have had a couple of people contact us from the Democratic Republic of Congo and what they tell us -- and of course you hear this from people talking about service in Iraq and Afghanistan -- conflict settings open the door to corruption because there may not be a banking system, things have to be paid for in cash, there's a lot of cash changing hands, there's a certain amount of legal chaos. In a setting like that, your best source of information is going to be a whistleblower because there's nobody officially designated by a government to be responsible for certain enforcement or regulation.
Shelley: I would add that, outside our international program, our national security & human rights program does have cases connected to conflict settings as well. For example, there are whistleblowers who were detained in Iraq after they blew the whistle. So one thing GAP has been doing is assisting with their cases.
Beatrice: We also have this case, Peter Van Buren, who wrote the book, "We Meant Well", about US aid programs in Iraq and how ridiculous, how bogus, how corrupt and wasteful they were and the State Department then tried to fire him.
Shelley: So we do help people that are retaliated against for raising concerns about things that are happening in conflict and post-conflict settings.
How does/can whistleblower protection promote corporate and government accountability?
Beatrice: If you look at what's happened in the United States since Ronald Reagan, since GAP was founded, it's been 30-40 years of deregulation, so corporate operations and federal government operations responsible for oversight of corporate activities have all been dismantled. I mean we are seeing the results of that, that there are increasing numbers of food contamination causing serious health problems, for example. We have a whistleblower that has provided data showing that the drug trials for a number of commonly used drugs are faked by a private company that does it, because the Food and Drug Administration used to do the testing. So with deregulation, it's only the whistleblower who is left as the voice of the public interest on the inside of the operation because there is no real structural, legal apparatus that's assigned and funded to oversee how government operates or how corporations operate.
Shelley: I would add that a survey from PriceWaterhouse Coopers of approximately 5,000 corporations worldwide found that whistleblowers detected more internal fraud than compliance officers, auditors and law enforcement agencies combined.
Beatrice: They are very cheap, focused, accurate, source of anti-corruption work.
Can you give me some examples of whistleblower legislation that you think is particularly effective and that provides adequate protection to whistleblowers?
Shelley: We have a list of best practices that compiles what the best practices are throughout the world in different laws. So I don't know if there's one law that's good for everything, but there are parts of different laws that are strong.
Beatrice: I think that one provision that we run into or try to promote, and it logically makes sense as an effective measure, is external arbitration. That is wherever you are, whether it's in a corporation or a federal government agency or an international agency, if you can get your complaint pulled out of the agency or the rigged hearing board or the corporate disciplinary board and have it heard and resolved in some neutral setting with experts, you're much better off-you have a fairer chance.
Beatrice: If you're obliged to have your complaint heard or your case decided by people who are employed by the same institution that retaliated, you are really going to be in trouble and so that's what we try to avoid.
Shelley: I would say that the African Development Bank (AfDB) has the strongest policy of the intergovernmental organizations, but having a strong policy is useless if it's not enforced and all of them, with the exception of the UN, don't make their enforcement records public. So you can have the best policy in the world and if you're not enforcing it, it doesn't matter. But the AfDB's policy in general, for the most part is pretty good. The World Food Programme has some good provisions in its policy and the UN Secretariat has some parts that are good, but it needs improvement.
What are some recommendations you have for individuals who want to influence policy related to corruption issues?
Beatrice: I would say, and many people say this that one of our main obstacles to achieving any kind of change is a lack of access to information and that a real fundamental goal is the objective of this relatively new group, Open the Government, that advocates for increasing transparency and access to information. Because as regulation has weakened, also we've had an increasing lack of access to information, because for example, if you privatize a regulatory function, then whatever happens becomes proprietary information and you can't get that information. So often we find ourselves working on freedom of information act requests to try to find out what's going on and there is this coalition that has been active in the last two or three years since Obama was inaugurated, Open the Government.org that liaises with the White House and has access to some fairly high level influential decision makers. So if individuals or smaller organizations were looking to see what they could do, that would be a good place to find allies and see if their work could complement that work. Most of what's a problem goes on behind closed doors.
Shelley: I would add that for potential whistleblowers, they should read the "Corporate Whistleblower's Survival Guide" which is the book that Tom Devine and Tarek Maassarani of GAP wrote. It is also for government whistleblowers, though it does focus on corporate. Before you blow the whistle, you should know what you're doing if you can because you can avoid a lot of mistakes if you do some research before you blow the whistle.
Beatrice: Most of the time, when somebody comes to GAP, they are already in trouble, they've been identified and they are under retaliation and there are ways, if you are careful, to get your information out without having anyone know who you are.
How does someone develop a career in this field?
Beatrice: Go to law school, international law. Social sciences, because there are a lot of psychological and social dynamics that goes on in the process. One of the most effective methods of retaliation is to isolate the whistleblower, to marginalize them, make them feel alone and so one of the things we do is to try to let them know that there is a support network outside of the institution where they are having trouble. A background in Counseling and Psychology would be useful.
Shelley: Also, develop an investigations background, with corruption issues.
What are some successes that you are proud of?
Beatrice: Getting Paul Wolfowitz to resign as president of the World Bank. It wasn't just him, but the people around him also left who were protecting his secrets and his deals so that in the end there were five senior management people at the bank who left. I think in the last year, the Tom Drake case where Jess Radack, our National Security Program Director, did the media work and the advocacy work on the NSA whistleblower, Tom Drake's case, that really changed the climate about his situation and caused the prosecution to collapse, and that was an important one. And then earlier this year, the food integrity program -- and the whistleblowers were not strictly speaking, the victims of retaliation -- but they exposed this stuff pink slime, that is added to 70% of hamburgers sold in the United States and I think in Canada, so that was also significant.
Shelley: A lot of fast food companies stopped using it after information about pink slime came to light.
What are some challenges or obstacles that you face in your job?
Shelley: The retaliation that whistleblowers are subjected to is very difficult for them and it can be really heartbreaking to hear people who sacrificed their career because they did the right thing and who've lost their visas and their colleagues turn their back on them and often their marriages fall apart. So that can be really hard, to see people do the right thing and really suffer severe consequences for it. Part of what we try and do is to help them and help correct those consequences.
Beatrice: It never ceases to amaze how imaginative retaliators can be and how patient-they will wait until it's all over. I think that's one of the problems that Shelley was bringing up-the statute of limitations being short, because - if something's been a very visible scandal, like pink slime - then the company will wait a year or two before they go after the person and get rid of them because there is too much focus, there's too much attention-it would be stupid. The other thing is that sometimes retaliation is subtle or original, so that the whistleblower doesn't realize that what's happening is retaliation until you know, much later. They just think oh, I'm just not on the list for training, I'm not getting that trip, I've been passed up for a promotion and then things start to accumulate and then they realize, hey I've been here for twenty years and I'm not going anywhere.
What is the most rewarding part of what you do?
Beatrice: I say when we win one and we do from time to time have a clean out and out win where a hearing board or a court says this person needs to be reinstated or you can't take his security clearance or that that retaliator needs to go.
Shelley: I'd say seeing something change for the better, whether it's the whistleblower being reinstated or compensated or something actually being done to address their concerns, which unfortunately doesn't happen as often as it should. It has happened in some significant cases. I think all of those things are really rewarding.
Beatrice: There are a lot of happy endings. Every time a whistleblower gets some kind of vindication or support, I think the institution takes a step back. They get the message that they can't just do that, so if you get a positive decision on retaliation, you can probably extrapolate from that, that whatever the disclosure was, that thing is less likely to happen.
Shelley: Studies have shown that the number one reason whistleblowers don't come forward is because they think nothing will change as a result. So if you have a whistleblower win their case or their actual disclosures are acted upon, that often leads to a lot more whistleblowers coming forward. And you see that. Like at the FDA, for example, we had a very successful whistleblower and then several came to us right after that. One person really can make a difference and people often wait to see what happens to that case.
Beatrice: That's happening now with the financial banking whistleblowers, where one person came forward and won and so now more of them are.