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Protecting Whistleblowers since 1977

Marine Corps Whistleblower Wins Giraffe Award, Discusses Case In-Depth

Dylan Blaylock, January 13, 2012

To start the new year, Marine Corps whistleblower Franz Gayl – who recently was allowed to return to work in a remarkable victory for a Defense Department employee – received a Giraffe Commendation, an honor awarded by the nonprofit Giraffe Heroes Project to people who "stick their necks out for the common good." From the organization's website:

Franz Gayl is a committed Marine vet, loyal as all good Marines are, to the Corps. Working as a civilian advisor in the Pentagon, he saw reports from combat officers that Humvees were death traps for Marines and soldiers in Iraq. Field commanders were asking for the better-armed MRAP (Mine Resistant Ambush Protected) vehicle. It wasn't happening. Gayl pushed Pentagon channels. Nothing happened. So he went to the press and to Congress. The Pentagon took away his security clearance, making it impossible for him to work. He's widely credited with the Defense Department finally ordering the MRAPs and with the Secretary of Defense proudly saying they were saving thousands of lives. An official inspection of Gayl's case ordered the Pentagon to re-instate him. Do you wonder how many soldiers and Marines died or lost limbs during the years it took to answer the field commanders' urgent request?

GAP commends the Giraffe Heroes Project wholeheartedly, both for recognizing Franz' role in protecting our troops, and for being so supportive of whistleblowers in general. At GAP, we strongly believe that the tribulations of whistleblowers should be known, and that all citizens should be made aware of how important whistleblowers are to democracy. Whistleblowers should be honored for their courage and standing up for the truth. The Giraffe Heroes Project helps make this happen.

Ironically, the first day he was back on the job, Gayl's new supervisor announced he would be demoted and stripped of all science and technology" duties. Apparently the Marines' response to lifesaving whistleblowing is "Never Again." So much for the rule of law.

Furthermore, a recent interview between GAP Communications Director Dylan Blaylock and Franz examines the extraordinary risks that come with "sticking your neck out" at arguably the most powerful and shielded government institution – the Pentagon. In this through piece, Gayl describes his personal struggles in blowing the whistle, and gives his straightforward opinion about some faults with the Department of Defense Inspector General role in shielding him from protection. A transcript appears below.

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GAP: While we certainly help all kinds of whistleblowers here at GAP, ranging from corporate and government to international institutions and nonprofits, it is less common for us to be approached by whistleblowers with military concerns. Military members have weaker whistleblower protections, in general, and as such, can face a more daunting task of exposing problems. Of course, you were a civilian employee working at the Department of Defense, but your concerns were about protecting our troops. How difficult was it for you to make the decision to come forward?

Gayl: As a retired Marine who was then working as a Government civilian, the decision was fairly simple for me. Marines had been, and were continuing to be, killed and maimed when they didn't need to be. For uniformed active duty Marines to confront the United States Marine Corps (USMC) chain-of-command at the Pentagon in the way it needed to be done – considering the urgency – might have been perceived as disloyal. This would have meant certain career suicide. As a civilian I had an equally pressing sense of duty, but as a civilian I thought I might somehow be protected in a way my uniformed brethren were not. It was the main reason that I accepted the invitation to go to Iraq, and it was the trigger for me to act on the observations I made there – beginning while I was in Iraq and after my return. But frankly, I never intended to become a whistleblower.

GAP: How is that word – whistleblower – perceived by military members, from your point of view?

Gayl: To me and most of the Marines I know, the word carries with it connotations of being a narc, a snitch, and even a traitor. Those concepts are anathema to every Marine as they imply indiscipline, disloyalty, and a threat to unit cohesion. Marines and all armed forces rightly pride themselves on the good order and discipline within their organizations. Success in military operations absolutely depends on it in conflict. I guess you could say the implicit/explicit military codes are averse to whistleblowing, and I fully understand this. On any given day, I as a Marine might have concurred, optimistically contending that no problem is unsolvable within our own ranks – inside the tight-knit Marine Corps family.

However, in Iraq I saw that this optimism was unfounded, as the support establishment upon whom those on the front lines were so dependent seemed to be acting on a completely different set of incentives. In Iraq in 2006, the tragic consequences were no longer theoretical predictions. They were instead observable facts. As a civilian, it was my duty to mitigate the causes and thereby the consequences that harmed Marines. I was certainly not alone. All those around me of every rank witnessed the combat equipping failures with intense frustration and rage. As a civilian advisor and observer I just happened to find myself in a special set of shoes. I was compelled to say and do uncomfortable things in order to fix the problem as a matter of my duty ... just as our troops perform their duties.

So, the mindset of military whistleblowers is the shared group identity – the family identity. This phenomenon is by no means restricted to the military. First responders of all kinds – police, firefighters, EMTs, doctors or so many other folks whose circumstances and responsibilities carry the possibility of lethal outcomes – they too share this mindset. There is not a Marine, soldier, sailor, airman, or coastguardsman who does not understand this intuitively.

GAP: Just before coming forward, what did you expect would happen to you? What were the incidents that led up to the point of no return?

Gayl: I thought my concerns would be acted upon in good faith when I returned to the United States. In fact, my top supervisor in the Pentagon had initially approved a briefing that I had been invited to give to the Office of the Secretary of Defense (OSD). Unfortunately, our draft presentation offended the senior officials who carried the responsibility for many of the problems on which we would be briefing the OSD staff. That defensive reaction from the support establishment, especially certain impacted civilian bureaucrats, was so severe that my supervisors were compelled to prohibit us from presenting.

The fact that my career would be deep-sixed by my further prodding and revelations did not inhibit me, and my family supported me by accepting this ... inevitability. The real disappointment was the raw opportunistic survival that civilian bureaucrats in the organizations I spotlighted resorted to in order to save themselves from public and legal criticism. This included many statements that subsequently could not withstand scrutiny before Congress or to the press, the then-Chairman of the Joint Chiefs of Staff (CJCS), and many others.

I employed other protected disclosure paths to get the problems the attention they desperately needed. Those paths included Congress and the press. I was relatively ignorant of the whistleblower statute available to federal civilian employees – the Whistleblower Protection Act (WPA) – early on, and its existence really didn't affect my decisions in moving forward. When GAP came to my defense in 2007, I was able to move forward more effectively.

GAP: Do you feel you were properly protected by the WPA?

Gayl: I have not sensed that the WPA has the enforceable teeth that Congress originally envisioned. My past Marine Corps supervisors carefully worked around the law by wording reprimands, performance improvement programs, and rock bottom annual performance evaluations cleverly. But I was denied education and bonuses, had my job description changed, and proposed for several suspensions – I believe as retaliation – in ways that attempted to conceal the fact that each was a prohibited reprisal stemming directly from one or more protected disclosures by me.

My good fortune is a rare exception that proves the rule. The only reason that I have been able to remain employed over the past five years is due to my luck in receiving a timely combination of aggressive congressional support, free expert lawyers at GAP, a sustained media spotlight, and grassroots support from thousands of citizens who petitioned the Secretary of Defense on my behalf. Yet even with all that exceptional support it took almost five years for me to arrive here, I nearly lost my home and career in the interim, had to cope with the worst stress and tension of my life, and my position is still far from secure. The Whistleblower Protection Enhancement Act (WPEA) would address these problems, and I urge it's passing.

GAP: We hear much about how different agency's Inspectors General handle cases. What was your experience like?

Gayl: I have a lot to say about this. I have observed, generally that the office of the Department of Defense Inspector General (DoD IG), while probably well intended, appears to suffer from fundamental weaknesses that nurture a counterproductive groupthink – one that overwhelmingly favors the agency and disadvantages whistleblowers. Statistics bear this out. The recommendations of audit and investigation reports are closely linked to the professional survival interests of the individuals and teams conducting such audits and investigations. Unfortunately, there is a real conflict of interest. At the individual agency level, Inspectors General get their performance appraisals and bonuses from the agencies, which undermines their independence and objectivity. In my case, I initially sought the DoD IG's help to nip retaliation in the bud at a higher level. Unfortunately, I was shocked to learn that in practice, and even at the level of the DoD IG, they responded by doing the dirty work of my agency to enable intensified retaliation and my termination. Tom Devine, my lawyer at GAP, said that they ignored all the relevant legal standards against agency pretexts as a way to justify harassment of me, and that he will be warning all whistleblowers who approach GAP that the Pentagon IG is a trap – that teams up with agency managers to finish whistleblowers off.

This is not just a problem at the Department of Defense. Whistleblowers from other Inspector General offices have shared that when final drafts are not consistent with such predispositions, reports are returned to the teams for rewriting. Just thinking about it, such an event cannot be comfortable for any team or individual with hopes of pursuing a successful career in any IG. A very low number of whistleblower complaints are validated by the DoD IG. This indicates that DoD IG investigations follow paths that encounter the least resistance.

The question then becomes why the agency-supportive OIG predispositions exist. The answer is that the DoD IG and the agencies it audits and investigates have a shared interest in each other's professional survival. They want to be able to sing each other's praises, as cooperation in audits and investigations is crucial, especially for the OIG which absolutely depends on agency-granted access for the successful conduct of future investigations. Punishments, penalties, and professional sufferings of lone individuals are very easy for the DoD IG to recommend, given that individuals have no power if they contest the outcome. There is also an incentive for the DoD IG to find the agencies harmless since such recommendations are instantly embraced by those agencies, winning the OIG a hefty ally in defending the alleged objectivity and comprehensiveness of its recommendations, especially before interested members of Congress.

Now, if agencies are unhappy with recommendations, they can then retaliate against the Inspector General. If an investigation is severely critical, that IG can be harshly discredited at the Congressional level, considering the access of agency liaison offices. I am a witness to the capability of agencies to achieve access to Congressional staff – access and influence a lone individual is unlikely to muster in contesting a report. The observed tendency of the DoD IG to treat even the most culpable senior uniformed leaders who represent agency interests with slaps on the wrist – or not at all – is rooted in an apparent desire not to deface public images of permanent agency organizations, or their popular and promotable leaders.

Probably the most damaging threat of agency retribution against IGs is a potential lack of cooperation on future audits and investigations. A disgruntled agency can easily make access to information exceedingly difficult and the successful timely completion of follow-on investigations nearly impossible. It was my personal observation that the DoD IG teams developed comfortable and habitual relationships with agency organizations being audited. Audit teams remained intact over the long haul. So did the designated points of contact in the specific agency offices being audited. In fact it was shared with me by DoD IG staff that my agency welcomed this personnel familiarity and comfort across sequential audits.

With respect to protecting whistleblowers from retaliation, in my case the DoD IG aggressively took the exact opposite role. By law, its only authority is to investigate retaliation when whistleblowers seek help from the office. But in my case, over my objections, it conducted two witch-hunts that paved the way for Marine attempts to finish me off. They disregarded the legal standards of the already-weak Whistleblower Protection Act, to the point of not even mentioning my evidence against pre-textual excuses to harass me. Based on my experience serving as an expert witness in two previous audits, I am assuming that similar relationships between the IG and the DoD developed during the two later whistleblowing-related investigations of me. The obvious general result is that DoD IG objectivity is corrupted, and to the indisputable benefit of the agency being scrutinized.

In my case, these weaknesses served to enable my agency's attacks on my security clearance by justifying the agency's retaliatory investigations. The DoD IG insisted that their investigations were for my benefit, and that I had no say in the matter when I protested that I no longer wanted their help. Then, as predicted, they produced reports that removed any foreseeable legal obstacles that might have prevented my agency from continuing their effort to purge me from my position.

In my case, the DoD IG sided with the agency in the first investigation even though the evidence pointed to agency reprisal. The DoD IG just didn't recognize the existence of any evidence that got in the way of their predetermined and agency-supportive outcome. The second investigation, executed against my will, was intended from its inception to reinforce the outcome of the first. If the DoD IG had acted otherwise on either investigation, culpability for violating the WPA might have been found to have extended directly to the top leadership echelons of my agency in 2007, 2008, 2009 and early 2010. This outcome was impossible for the DoD IG to consider, much less state, even if the evidence had been overwhelming. Individual, lone complainants like me come, go, and retire; and complaining operational commands tend to disintegrate as a function of normal personnel rotation. In the balance of DoD IG considerations, neither of those whistleblower sources poses threats. But agency headquarters bureaucrats and their permanent organizations have long memories, and serve as potent and perpetual influences. In the end, the DoD IG cannot risk anger that might burn bridges with the agencies it investigates on whistleblowing complaints.

GAP: What advice would you give military whistleblowers?

Gayl: Marines who see something very wrong and are unable to correct it through supervisors should first consider their existing rights. Every uniformed Marine has a legally protected mechanism to report concerns to higher authorities. In the Department of the Navy it is known as the right of "Request Mast." It is the only military mechanism I know of that could be compared to a protected whistleblowing process. It is noteworthy that Request Mast is not a right extended to civilian Marines – the WPEA would fill this gap, though.

Under paragraph 2805 of the Marine Corps Manual, any Marine has the right to Request Mast to discuss any personal or professional concerns with commanders up to, and including, a Commanding General within the chain of command at the same base or immediate geographical location. If the issue is deemed significant and valid, requests can (at the discretion of the Commanding General) be submitted further up the chain even up to the Secretary of Defense. When I was enlisted, it was rumored that some requests had even reached the President, though that may have been garrison legend. Officially, any interference with a Marine's right to Request Mast, or any attempt of reprisal against a Marine who has done so, is prohibited. No Marine may suppress, or attempt to suppress, another Marine's ability to conduct Request Mast. Any attempted violation or solicitation of another to violate this directive subjects involved members to disciplinary action under Article 92 of the Uniform Code of Military Justice. Reprisals against those who Request Mast are outright illegal. The Marines and the Naval Service have commendable records of enforcing the sanctity of this basic right.

When I enlisted in 1974, all Marines treasured the opportunity to Request Mast when all other direct remedies failed to get their concerns resolved. I am confident that they still do so. Still, in practice, many Marines and I in our various roles – either as leaders being appealed to or as subordinates submitting requests – have observed from time to time that the confidentiality of topics and complainants is infringed upon in well-intended chain of command submission and resolution processes. As one can expect, reprisals are not out of the question. But the right of Request Mast is effectively a protected whistleblower mechanism for uniformed military members, more supportive than anything currently available to civilians working in national security organizations.

Civilian Marines who want to blow the whistle do have other protections besides the WPA, yet recent history has shown that, like the WPA, these protections are equally weak and ineffective. The DoD IG also remains an avenue for civilians to seek whistleblower protection. However, the dedication of the DoD IG to challenge agency perspectives is historically questionable, even when evidence has suggested they should have been challenged. Also, civilians have no appeal rights concerning DoD IG investigations and their findings. Worse than merely ineffectual, the DoD IG should be viewed by any civilian considering blowing the whistle as a Trojan horse.

One major positive change is however noteworthy. The Office of Special Counsel (OSC) – the federal agency charged with protecting whistleblowers and investigating their disclosures – has been transformed under the inspiring leadership of Carolyn Lerner. Since her arrival last summer, OSC has truly come to fulfill its intended mission as a federal guardian of whistleblower rights. For example, OSC's determination to request a stay of my suspension from the Marines in November, and the Merit System Protection Board's (MSPB) 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. Several others like me have received similar support from OSC recently, one that spells hope for current and future federal civilian whistleblowers. With strong committed leadership at the helm of OSC, the MSPB, and related organizations, an effective line of defense against agency reprisals can be drawn in anticipation of enhanced WPA protections that will, and must be signed by President Obama this year.

GAP: Thanks for speaking with us. What else would you like to say?

Gayl: I want to express my deepest thanks to all who have steadfastly supported me throughout this ordeal. My fellow civilians and the countless active duty, reserve, and retired Marines of all ranks from around the world who have remained in contact with and reached out to me, often risking their own careers in the process. This five-year saga in my professional life has deepened my life-long commitment to the Marine Corps that has formed the foundation of my purpose and identity since I first enlisted in 1974. I was energized to return to work in support of all Marines in the capacities for which I was hired. My first day back a new supervisor (with whom I never had worked), shook my hand and said we are going to leave the prior conflicts behind. Unfortunately, he then announced that the agency will be demoting me and stripping me of all my Science and Technology duties. My attorneys at GAP said they were not surprised, and are preparing a new counterattack. Again, the moral support provided to me by so many of my fellow Marines throughout has been a sustaining gift for me and my family.

Lastly, all federal whistleblowers need enhanced protection, because none, whether soldier or civilian citizen, is immune to the corrupted human dynamics that would otherwise inhibit truth telling.

 

Dylan Blaylock is Communications Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.