PRESENTATION FOR STATE DEPARTMENT

INTERNATIONAL VISITORS: 2015

THOMAS DEVINE

LEGAL DIRECTOR, GOVERNMENT ACCOUNTABILITY PROJECT

1612 K STREET, N.W., #1100

WASHINGTON, D.C. 20006

WHISTLEBLOWER PROTECTION AND CREDIBLE ANTI-CORRUPTION CAMPAIGNS:

YOU CAN'T HAVE ONE WITHOUT THEOTHER

Thank you for honoring the Government Accountability Project (GAP) and me by visiting us. You have the right to know: what is GAP? We are a non-profit, non- partisan public interest organization whose reason to be is service for whistleblowers, those employees who exercise free speech rights to challenge abuses of power that betray the public trust. Since 1977, our organization formally or informally has helped over 7,000 whistleblowers.

We help in four ways. First, we defend them against retaliation through conventional lawsuits in national courts up to a recent successful Supreme Court appeal. We also represent whistleblowers in international tribunals such as at the United Nations. Often the best defenses are more informal, by recruiting support from political figures more powerful than the bullies, or through action by government whistleblower protection agencies.

Second, we help them make a difference by investigating their charges and then waging legal campaigns around the truth, often integrated with the reprisal defense. For both aspects, the magic word is solidarity. GAP’s strategy is to act as a matchmaker between isolated whistleblowers and all the groups in society that should be benefiting from their knowledge. Through the investigations we create a record of documents and sworn statements from other whistleblowers, so that the initial falling rock becomes a landslide for the truth that cannot be ignored. Then we share the information with all those who are affected by the cover up – affected communities and citizen groups;law enforcement agencies and regulatory bodies; legislative members and committees to seek broader investigations and hearings; the media as the lifeline to society; investors; and even competitors. When that occurs, instead of a corrupt organization surrounding the isolated whistleblower, society surrounds those who are abusing their power.

GAP pursues solidarity internationally as well. Along with our British sister organization Public Concern at Work, we helped found the Whistleblowers International Network (WIN)of NGO’s to provide solidarity through sharing research, facilitating communications, and uniting to challenge threats against whistleblower rights, or whistleblowers.

Third, we advocate enactment of stronger laws protecting whistleblowers’ free speech rights, and then monitor their implementation. We have been a leader in drafting or campaigns for passage of 32 whistleblower laws or policies. They range from Washington DC’s law, to nearly all national whistleblower laws in the United States, as well as Intergovernmental Organizations (IGO’s) including the United Nations, World Bank, Organization of American States and African Development Bank. Whistleblower rights are one of the world’s most dynamic areas of law. When I first came to GAP, the U.S. was the only country with a whistleblower law. Now 30 nations and six IGO’s have whistleblower laws or policies, with 60 more proposed globally.

Our duty when advocating whistleblower laws is the most important principle: first do no harm. As a result, we often oppose fraudulent whistleblower proposals with supportive titles that actually are traps to identify political threats and then rubber stamp any ensuing retaliation. We check whether whistleblower proposals or laws are “metal shields” (creating a fighting chance to survive) or often gaudy “cardboard shields” (guaranteeing doom despite their appearance). To help choose, we have prepared research you can find on our website listing whistleblower laws globally that include the 20 best practices for rights that are metal shields.

Similarly, one of our primary lessons learned is that passing even credible whistleblower laws on paper is only the first step in a long journey for freedom of speech. Without ongoing efforts, in practice that are solid on paper may disintegrate into traps that discredit their purpose and victimize those who take them seriously. Even good faith laws inevitably lead to cycles of trial and error, and it essential to act on lessons learned. For example, in the U.S. our whistleblower law for federal government workers is in its fourth generation with passage of the Whistleblower Protection Enhancement Act of 2012 after a thirteen year campaign.

Finally, we try to share our lessons learned through briefing visitors such as yourselves. This also is necessary so that rights sink in through knowledge and training. We publish law review articles, newspaper op-eds, and books to share all the details of new laws, as well as the painful lessons of experience. Our most recent book, the Corporate Whistleblower’s Survival Guide: A Handbook for Committing the Truth, recently won the International Business Book of the Year Award at the Frankfurt Book Fair. Since 1979 we have operated a law school clinic, currently with the D.C. School of Law, and regularly have college or law school interns in full-timeapprenticeship role. For practitioners, we offer continuing legal education courses and videos. We teach at training programs for government investigators and ombudsmen on how to work more effectively with whistleblowers. GAP also has worked with university and law school professors to develop academic programs on whistleblower rights, and has sponsored whistleblowers on college tours to share their experiences.

There is nothing magical about the term "whistleblower." In the Netherlands,these same individuals are called "bell ringers," after those who warn their communities of danger. Other nations refer to whistleblowers as "lighthouse keepers," after those who save ships from sinking by shining the light on areas where rocks are both invisible and deadly.

No matter what we call them, whistleblowing is freedom of speech when it counts the most, and therefore is the most dangerous. It is easy to have freedom of speech in a soccer stadium to say almost anything about a referee who calls a penalty on the wrong athlete. One reason is that it is hard to retaliate against tens of thousands of dissenters. Another is that the wrong decision is not a secret. It likely was televised. It is different for whistleblowers. They are challenging secrecy enforced by repression, and many be one of only a few who know the truth.

Whistleblowers exercise freedom of speech in three different contexts. We usually think they are exercising the freedom to protest. In this setting their speech is the lifeblood of justice, essential to hold those responsible who abuse their power.

A second, even more important context, is the freedom to warn. Here whistleblowers seek to prevent avoidable mistakes or disasters, before it is too late for anything except damage control and finger pointing. In this setting, they can be like the bitter pill that keeps an organization from getting sick. I view institutional leaders’ response to whistleblowing as a test of their management maturity. Most organizational problems get buried in the middle of bureaucracies, and a leader may not even know about them until getting blamed for the consequences. Whistleblowers should serve as their eyes and ears. We regularly advise corporate leaders that it is bad business to silence or kill the messenger.

The third context may be the most fundamental – the freedom to create, by challenging conventional wisdom. What do I mean? Less than a thousand years ago we all believed the earth is as flat as a table, and that the whole universe revolves around us. Thanks to Copernicus and Galileo, we know better. They received the whistleblower treatment. Galileo spent the rest of this life under house arrest. But they made a difference as the founders of modern society, and they keep the scientific profession honest.

I think of whistleblowers as people who make a difference as the living histories who refuse to be rewritten. Whether they are right or wrong, noble or self-serving, they are essential to keep power from corrupting absolutely. By challenging conventional wisdom, they keep society from being stagnant and are the pioneers ofchange.

Why do they do it? Whatever we call them, these are individuals at the intersection of valid but conflicting values. We like team players and find cynical troublemakers and are resentful of naysayers. But we also admire rugged individualists and have contempt for bureaucratic sheep. Similarly, no one wants to be viewed as a squealer or tattletale. A common synonym for informant is "rat." But we have equal contempt for those who look the other way, do not want to get involved, or make a conscious choice to see nothing.

Transparency triggers another valid contradiction. Any citizen in a former dictatorship cherishes the right to privacy. But a cornerstone of democracy is accountability through the public's right to know. Sometimes it's necessary to choose, or have the choice imposed onus.

Themostdifficultchoicesforcewould-bewhistleblowerstoanswerthequestion: loyalty to whom? For almost all of us, the top loyalty is to our family. Getting fired threatensourcapacitytosupportchildrenandotherlovedones.Thecommonslogannot to bite the hand that feeds you is both a cultural norm and can be a necessity for economicsurvival.Similarly,thereisloyaltytoourco-workers,whomaybeamongour bestfriends,andoftenfeelasdefensiveorthreatenedasthewhistleblower'sinstitutional target.Lossoffamilyandfriendsarecommonconsequencesforbreachingthisloyalty. Butwhataboutloyaltytoourcommunities,whichcanbevictimizedbycorruption?

Should we remain silent and passively join cover-ups that could kill our neighbors through contaminated food or a poisoned environment? What about loyalty to the law, and to our nation? The latter is calledpatriotism.

One of my primary teachers and most effective clients, Ernest Fitzgerald, in the 1980's exposed the world's most expensive nuts, bolts, coffee pots and toilets seats, all purchased by the U.S. military at taxpayer expense. In 1968 he exposed lies to Congress that were covering up a$2 billion cost overrun on construction of Air Force cargo planes. Ernie calls whistleblowing "committing the truth," because those who do it are treated like criminals. That is ironic, because these eyewitnesses are the Achilles' heel of bureaucratic corruption by thwarting secrecy, its breeding ground. They are the lifeblood of anti- corruption campaigns, which are lifeless, empty symbols doomed to failure without testimony from those who bear witness. Consider how they made a difference challengingcorruption in the U.S. and Europe. They have --

*increased the government's average annual civil recoveries of fraud in government contracts from an average less than $10 million before 1986, to over a billion dollars annually sincereviving the False Claims Act that year. That law allows whistleblowers to file lawsuits challenging fraud in government contracts.

* sparked removal of the pain killer Vioxx after Senate testimony that it was a killer pain killer that had caused some 50,000 fatal heart attacks, and obtained stronger consumer safety enforcement for other prescription drugs.

* through Edward Snowden, as well as a series of pioneer whistleblowers at telephone companies, the Department of Justice and the National Security Agency (NSA), exposed and led to controls on blanket, illegal domestic government surveillance of all electronic communications.

* exposed government orders to abandon Federal Air Marshal (FAM) defenses during a confirmed, more ambitious 2003 rerun of the 9/11 suicide attacks targeting not only U.S. cities but also the Australian and European capitals. FAM coverage was restored, and the mass hijacking prevented.

* caused creation of a national milk testing program after exposing suppression of a test that after approved demonstrated 80% commercial milk was contaminated with illegal animal drugs.

* forced the resignation of World Bank President Paul Wolfowitz, who took office pledging a campaign against Third World corruption, by exposing that his own practices were indefensibly corrupt.

* exposed failure for a year and a half to deliver purchased and tested vehicles capable of protecting U.S. troops from landmines. After their delivery, landmines dropped from 90% of casualties and 60% of fatalities, to 10% of casualties.

* reduced from four days to two hours the amount of time racially-profiled minority women going through U.S. Customs could be stopped on suspicion of drug smuggling, body cavity-searched and held incommunicado for hospital laboratory tests, without access to a lawyer or even permission to contact family, in the absence of any evidencethat they had engaged in wrongdoing.

* sparked a top-down removal of top management at the U.S. Department of Justice ("DOJ"), after revealing systematic corruption in DOJ's program to train police forces of other nations how to investigate and prosecute government corruption. Examples included leaks of classified documents as political patronage; overpriced "sweetheart" contracts to unqualified political supporters; cost overruns of up to ten times to obtain research already available for an anti-corruption law enforcement training conference; and use of the government's visa power to bring highly suspect Russian women, such as one previously arrested for prostitution during dinner with a top DOJ official in Moscow, to work for Justice Department management.

*acted as catalyst for resignations by all European Commissioners, after exposing systematic EC procurement fraud organized by the EC President.

*convinced Congress to cancel "Brilliant Pebbles," the trillion dollar plan for a next generation of America's Star Wars anti-ballistic missile defense system, after proving that contractors were being paid six-seven times for the same research cosmetically camouflaged by new titles and cover pages; that tests results claiming success had been a fraud; and that the future space-based interceptors would bum up in the earth's atmosphere hundreds of miles above peak height for targeted nuclear missiles.

* exposed accurate data about possible public exposure to radiation around the Hanford, Washington nuclear waste reservation, where Department of Energy contractors had admitted an inability to account for 5,000 gallons of radioactive wastes but the true figure was 440 billion gallons.

*inspired a public, political and investor backlash that forced conversion from nuclear to coal energy for a power plant that was 97% complete but had been built in systematic violation of nuclear safety laws, such as fraudulent substitution of junkyard scrap metal for top-priced, state of the art quality nuclear grade steel, which endangered citizens while charging them for the safest materials money could buy.

*forced a new cleanup after the Three Mile Island nuclear power accident, after exposure how systematic illegality risked triggering a complete meltdown that could have forced long-term evacuation of Philadelphia, New York City and Washington, D.C. To illustrate, the corporation planned to remove the reactor vessel head with a polar crane whose breaks and electrical system had been totally destroyed in the partial meltdown but had not been tested after repairs to see if it would hold weight. The reactor vessel head was 170 tons of radioactive rubble left from the core after the first accident.

*bore witness with testimony that led to cancellation of toxic incinerators dumping poisons like dioxin, arsenic, mercury and heavy metals into public areas such as church and school yards. This practice of making a profit by poisoning the public had been sustained through falsified records that fraudulently reported all pollution was within legallimits.

*forced abandonment of plans to replace government meat inspection with corporate"honorsystems"forproductswiththefederalsealofapprovalaswholesome- plansthatcouldhavemadefoodpoisoningoutbreakstheruleratherthantheexception.

Thesewhistleblowers'impactsarejustasamplingofhowindividualscanmakea differencechallengingeventheworld'smostpowerful,corruptbureaucracies.Theyalso illustrate the potential results for the most cost-effective resource that exists against corruption--relyingonpeople.Manyanti-crimeproposalsareverycostly,bothinterms of money and liberty. But it doesn't cost any money to listen, and whistleblower protectionreliesonstrengtheningfreedominsteadofthreateningit.Itisnocoincidence thatfreedomofspeechisthefirstamendmenttotheU.S.constitution.The strengthof legal rights for whistleblowersisthelitmustestwhethereyewitnessestocorruptionwilltakecodesofethics seriously and choose to bear witness, instead of remaining silent observers. It increases cynicismandiscounterproductivetoethicscodes,ifthosewhoareharassedforhonoring theirdutydonothavethelegalrighttodefendthemselves.Peoplechoosemartyrdomas theexception,nottherule.

The good news if solidarity is the prerequisite to get away with committing the truth, whistleblowers are getting it more than ever before. When I first came to GAP, they were generally viewed as nutty or disloyal. Now they regularly are lionized in films and media. Time magazine selected three women whistleblowers as Persons of the Year. Unprecedented public support is why the U.S. Congress keeps unanimously renewing and strengthening the core whistleblower law's mandate. This is a freedom that increasingly is winning both legal and cultural revolutions.

AroundacenturyagoanAmericanSupremeCourtjusticesummedupremedies for the social disease of corruption. He explained that sunlight is the best disinfectant. Thereasonisnosecret.Inafreesociety,nothingismorepowerfulthanthetruth.