The Betrayal of the Whistle-blowers

Thanks to the glaring legal loophole and a hostile Justice Department, a federal employee who revealed that U.S. nuclear facilities were unsafe found his career and life ruined. And many other whistle-blowers share his fate.
By Eric Boehlert
Salon.com - October 21, 2003

Time magazine dubbed 2002 "The Year of the Whistleblower," honoring inside do-gooders who risked their careers by exposing, among other things, how the FBI let a key terrorism suspect slip through its fingers before the 9/11 attacks and by blowing the lid off Enron's outrageous financial crimes. Since the terror attacks, the critical importance of revealing governmental failures has become obvious: A breakdown in homeland security could mean catastrophe. Indeed, precisely that scenario is laid out in the current issue of Vanity Fair, which features an exposé about federal whistle-blowers who lay bare the shocking vulnerability of America's nuclear weapons laboratories at Los Alamos to terrorist attack, as well as the ongoing failures of airline and airport security. Several of those same whistle-blowers will soon tell their tale on "60 Minutes."

In recent years, aided in part by movies like "The Insider," whistle-blowers have attained the status of folk heroes. "It's become popular to protect whistle-blowers -- that's never happened before," says Danielle Brian, executive director of the Project on Government Oversight, a nonprofit public interest group dedicated to exposing governmental corruption and mismanagement that works closely with whistle-blowers and that advocates for them.

As a result, most people probably assume that federal whistle-blowers now enjoy strong legal protection against retaliation.

They're wrong. Many federal whistle-blowers -- including the one who exposed the security flaws at U.S. nuclear plants -- have had their careers destroyed because of a glaring loophole in the law designed to protect them: If their security clearances are revoked, as frequently happens to whistle-blowers, the special federal agency that investigates their cases has no power to restore it -- and the federal appeals court that is their last recourse is a kangaroo court that almost never rules in their favor. Even if a whistle-blower is vindicated, the crucial security status is often not restored -- in effect ending a career.

Since the Whistleblower Protection Act, or WPA, was unanimously passed in 1989 (and then strengthened in 1994) to protect whistle-blowers against on-the-job retaliation, the U.S. Court of Appeals for the Federal Circuit, the unique court that handles government-contract disputes, has continuously narrowed the rights of whistle-blowers and ruled against them in nearly every case, according to the Government Accountability Project, a public advocacy group.

Experts variously describe what happens to whistle-blowers when they enter the bureaucratic and judicial process as "a Twilight Zone," "Kafka-esque," and "Chinese water torture."

"It's a big loophole in the law," says Elaine Kaplan, the former head of the Office of Special Counsel, or OSC, the independent federal agency that investigates whistle-blower cases. "It's not the most satisfying system."

New legislation, with bipartisan support in the House and Senate, will attempt to close the loopholes.

"The Whistleblower Protection Act was passed to ensure employees who come forward will be free from harassment for doing the right thing," says Rep. Todd Platts, R-Pa., who introduced the new bill in the House of Representatives. "But the court has changed the intent of Congress in such dramatic fashion, to the point where there is significant disincentive for coming forward with information."

The Department of Justice opposes the bill, calling it unconstitutional. Defending the right of various federal agencies to decide who does and does not get security clearance, the DOJ frames the issue as one of executive-branch power -- the president, as head of the government, trumps a personnel arbitration court like the OSC. In the DOJ's view, security clearance is a privilege, not a right that can be won back in court

The DOJ and other critics of the pending legislation also argue that many federal employees facing legitimate sanctions would claim they were being punished for whistle-blowing, causing turmoil in the workplace.

"The ease with which Federal employees would be able to establish a prima facie case of whistle-blower reprisal, no matter how frivolous, would seriously impair the ability of Federal managers to effectively and efficiently manage the workforce," wrote William Moschella, an assistant attorney general, outlining the department's opposition.

Advocates deride these arguments. They insist that independent review of security clearance rulings is essential because bureaucracies, by their nature, almost always retaliate against whistle-blowers. And they say the DOJ claim that employees would frivolously invoke the law is grossly overstated.

"Historically, the Department of Justice has been hostile to whistle-blowers," says Brian. "On a simple level, they're seen as an annoyance, because Justice represents government agencies embarrassed by whistle-blowers. As for frivolous cases clogging the workplace, I've been doing this for a long time, and yes, there's an element of people who call themselves whistle-blowers who have sour grapes. But to suggest that's a big enough percentage so as to not have actual protection is ridiculous. It's a red herring."

Many former and current federal employees who have spoken out say that the system is so rigged against them that if they were deciding whether to do it again, they wouldn't.

"What I have learned is, don't do the right thing -- don't try to protect the American people when you see that they are in danger, because the law won't protect you," says Bogdan Dzakovic, a whistle-blower within the FAA who tried to air warnings about lax airline security years before the 9/11 attacks. He considers himself lucky: He's still got a job with the FAA and collects a government paycheck. But he spends his time doing menial tasks. "My career is over," he says.

Not every case has ended badly for the whistle-blower. Last year James Hopkins, an international aviation operations specialist with the FAA in Washington, filed for whistle-blower protection after he was fired when he alerted his supervisors to what he believed was a link between one of the hijackers involved in the 9/11 terrorist attacks and someone who had received aviation training at the FAA Academy. Hopkins wanted to take the information to FAA Security and the FBI, but his supervisors told him that "thousands of people were investigating" the attack and he needed to focus on his FAA duties. Hopkins pressed ahead and was fired by his supervisor for his failure to maintain a "calm and professional approach in the completion of duties, as well as evidence of sound judgment."

Hopkins' hunch about a 9/11 connection did not turn out to be useful, but the OSC investigated his case, found in his favor, and ordered the FAA to rehire Hopkins. The agency eventually agreed, awarding him full back pay, benefits and attorney's fees.

Fortunately for Hopkins, his case did not revolve around security clearance. "The Whistleblower Protection Act doesn't protect people who blow the whistle and then have their security clearance yanked," Kaplan explains. Without access to classified documents, a whistle-blower's career, both inside and outside the government, is effectively destroyed. Yet even if a whistle-blower's actions are vindicated by the OSC or another arbitration body, a federal employer is under no obligation to reinstate a security clearance.

"It's vicarious victimization of the whistle-blower," adds Terance Miethe, author of "Whistleblowing at Work: Tough Choices in Exposing Fraud, Waste and Abuse on the Job." "They get exonerated and yet nothing happens with security clearance."

"It's a Kafka-esque procedure," adds Doug Hartnett, a staff attorney for the Government Accountability Project. "You're asking the people who took clearance away to give it back to you. There's a visceral reaction to whistle-blowers by these agencies, so they rarely give it back."

According to Kaplan, the legislative solution is simple: Simply give the OSC, or the Merit System Protection Board (the higher body to which OSC rulings can be appealed) the power to rule on security clearances. But, Kaplan says, "there is a lot of political opposition." During the '90s there was an attempt in Congress to close the loophole, but the measure failed after the Department of Justice strenuously objected.

Richard Levernier, a DOE whistle-blower featured in Mark Hertsgaard's Vanity Fair article, is himself caught in the judicial Twilight Zone, battling to get back his security clearance. A federal employee for 33 years, Levernier spent the late '90s testing the preparedness of America's nuclear weapons facilities against terrorist attacks. He told the magazine, "Some of the facilities would fail year after year. In more than 50 percent of our tests at the Los Alamos facility, [mock terrorists] got in, captured the plutonium, got out again, and in some cases didn't fire a shot, because we didn't encounter any guards."

Levernier tried in vain to get the DOE to address the problems. When he refused to drop his crusade, his security clearance was revoked over a relatively minor infraction, effectively ending his career. Levernier filed for whistle-blower protection in September 2001, claiming the DOE retaliated against him and gagged his free speech. He took his case to the OSC, which found "a substantial likelihood" that Levernier's charges were accurate. Recently, after the Vanity Fair article was published, the DOE agreed and settled with Levernier. The details are confidential, but Hartnett at GAP, who assisted Levernier, says the whistle-blower is satisfied with the terms.

Still, Levernier remains without his security clearance. "If you lose your security clearance you're screwed," says Brian at the Project on Government Oversight. The law being proposed, known as the Whistleblower Protection Enhancement Act, stipulates that if the OSC finds in favor of a federal whistle-blower who had a security clearance taken away, the employer's agency must publicly explain why it's not reinstating that crucial status.

Looking back on his decision to blow the whistle, Levernier has nothing but regrets: "Given my experience, I would not do it again, even though I truly believe it was the right thing to do. DOE's inappropriate removal of my security clearance has ruined my career and life."

Unfortunately, that's often the norm for the whistle-blower. "It ruins their career, whether they're right or wrong," says Fred Alford, author of "Whistleblowers: Broken Lives and Organizational Power." "The law and the process take so long, and in the end, cases hinge on issues that have very little to do with the justice of the case, such as how your boss fired you, or who talked to who. It ends up in a strange Twilight Zone. Most whistle-blowers aren't prepared for it -- they're not cynics. Cynics don't blow the whistle; idealists do. But you need cynicism to survive it."

What often happens to whistle-blowers as their cases slowly wind their way through arbitration and the courts, is that the original charge of fraud, waste or abuse recedes into the background, and what's left is a mere personnel matter. Because personnel law is weak, the whistle-blower loses. "The original charges become irrelevant," says Donald Soeken, a psychotherapist and a frequent expert witness in whistle-blower cases.

He calls the bureaucratic remedies for whistle-blowers a "cruel hoax." Perhaps the cruelest part is that whistle-blower appeals are heard exclusively by the U.S. Court of Appeals for the Federal Circuit. According to critics, this court has eviscerated the original WPA law through judicial activism and has made a mockery out of the appeals process, ruling against whistle-blowers 83 out of 84 times.

"You can't possibly believe none of those [83] cases had merit," says Soeken. "But they didn't have a chance in hell because the judges won't apply the law fairly. Whistle-blowers spend all this time thinking there's justice down the road, but there is none."

"The law has become useless," says Brian at the Project on Government Oversight. "Nobody can meet the standard [created by the court] for federal employee whistle-blowers -- that they have to be the first person to talk about [the fraud], and find out about it not within the function of their job. It's Chinese water torture."

For instance, the court has found the WPA does not protect whistle-blowers who directly confront their supervisor about the supervisor's wrongdoing. Instead, the insiders need to notify more senior officials within the organization in order to qualify for protected status.

Alford recalls one federal whistle-blower he interviewed for his book, "She spent five years and $50,000 to get two minutes in court and be told she didn't have standing."

Perhaps most upsetting is the new "irrefragable" standard the appeals court has imposed on whistle-blowers. According to the judges, when reviewing any federal whistle-blowing case, the court must begin with the "presumption that public officers perform their duties correctly, fairly, in good faith and in accordance with the law. This presumption stands unless there is 'irrefragable' proof to the contrary."

"Irrefragable" sets an extraordinarily high threshold that means "incontestable, undeniable, incontrovertible." The pending legislation would require a whistle-blower to simply have "reasonable belief" of wrongdoing and be supported by "credible evidence."

The legislation would also break Federal Circuit court's monopoly on federal whistle-blower cases and give plaintiffs the ability to file their appeals in courts throughout the country, based on where they lived. "They'd no longer be stuck with a kangaroo court," says Brian.

The bill would also give the overworked OSC an independent litigation authority, allowing it to represent whistle-blowers in court. Currently, the OSC must first get permission from the DOJ, even though Justice Department attorneys serve as counsel for the opposing side in whistle-blowing cases.

Advocates argue that if the law is not passed soon (realistically, they're hoping for legislative action next year) whistle-blowers may vanish -- and with them, society's best chance of uncovering governmental failures. "Ultimately," says Brian, "no good investigation into government operations can exist without whistle-blowers."