The Washington Post: ‘America’s Most Famous Whistleblower’ Inspired Legal Protections. They’re Too Weak.
Note: this article, featuring Government Accountability Project, was originally published here.
‘America’s Most Famous Whistleblower’ Inspired Legal Protections. They’re Too Weak.
Retaliation is still common, especially for intelligence community whistleblowers
The man once known as “America’s most famous whistleblower” had few protections when he first spoke up about major Pentagon cost overruns in the late 1960s. There was no Whistleblower Protection Act to appeal to. Yet thanks to the long legal and political battles waged by A. Ernest Fitzgerald, who died in February at 92, the intelligence officials now coming forward with accounts that President Trump asked foreign governments to investigate his political opponents are shielded from certain forms of retaliation (by law if not in fact).
Fitzgerald’s example speaks to the bravery and tenacity of the men and women working for the U.S. government who, at great personal and financial risk, expose corruption. Yet despite the progress in protecting whistleblowers, too many loopholes remain that lead to their punishment.
Fitzgerald blew his whistle very publicly, in an appearance before Congress’s Joint Economic Committee, in 1968. His job was to analyze the cost of military projects, and his bosses sent him to Capitol Hill to discuss Lockheed C-5A transport planes. Told to dodge questions about the cost, he instead announced that the planes were running $2 billion over budget, stunning policymakers and the public. He lasted two years in his job before President Richard M. Nixon ordered him fired. (“I said get rid of that son of a bitch,” the White House taping system recorded the president as saying.) Fitzgerald was told that his job at the Pentagon had been eliminated.
Fitzgerald turned to the Civil Service Commission to help him get his job back and, after four lean years, was reinstated in 1973 — but the Air Force made sure to keep him away from the important projects and big contractors: His daughter told a Washington Post obituary writer that they “put him in charge of inspecting bowling alleys in Thailand.” (Fitzgerald also sued Nixon and lost, in a case that set the important precedent that presidents were immune from personal lawsuits.) Upset at the menial tasks the Air Force assigned him, Fitzgerald sued again and, in 1982, won back his old job, gaining more responsibilities and $200,000 in legal fees.
In his numerous appearances before Congress, his specialty was breaking down the cost of monumentally expensive weapons systems and planes into digestible nuggets. “Remember the $450 hammers, $640 toilet seats and $7,600 coffee pots?” Sen. Charles E. Grassley (R-Iowa) asked in a tribute to Fitzgerald he delivered on the Senate floor in February. “Those price tags for spare parts gave taxpayers sticker shock for good reason.”
Grassley repeatedly invited Fitzgerald to testify, and that relationship may help to explain why Grassley has recently broken with his conservative peers to defend whistleblowers in general and the Ukraine whistleblower in particular. “This person appears to have followed the whistleblower protection laws and ought to be heard out and protected,” Grassley has said, also arguing against “outing” the Ukraine whistleblower, which Trump has proposed.
Fitzgerald had powerful detractors, even after he won his job back and was winning plaudits on Capitol Hill. Verne Orr, secretary of the Air Force during the Reagan administration, famously described him as “the most hated person in the Air Force.”
Fitzgerald’s reputation and work helped lead to the adoption of the Whistleblower Protection Act of 1989, which President George H.W. Bush signed into law and which was intended to protect federal employees from retaliatory measures. A separate act governs whistleblowing in the intelligence agencies: the Intelligence Community Whistleblower Protection Act of 1998, which has been updated several times. Fitzgerald also championed the National Taxpayers Union and helped inspire an array of nongovernmental organizations that assist whistleblowers, such as the Project on Government Oversight and the Government Accountability Project.
Whistleblower protections, however, remain patchy and underenforced. Most federal whistleblowers are in theory shielded from retaliation — if they follow the overly complex rules for reporting their concerns. But PEN America and other groups that have studied whistleblowers find that when whistleblowers report retaliation, the reports tend to be brushed aside.
And protections for whistleblowers in the intelligence community have long been weaker than those for other government workers. The original Intelligence Community Whistleblower Protection Act of 1998 created a reporting mechanism but did not ban retaliation. Later statutes and presidential orders remedied that situation, but not consistently: Contractors were long excluded from the anti-retaliation aspects of the laws, for example.
Many critics argued that Edward Snowden should have gone through official channels, for example, rather than leaking information about National Security Agency surveillance, as he did in 2013. But Snowden was a contractor whom the law did not cover at the time.
After Jason Amerine, a former Army Green Beret, told a member of Congress about inadequacies in the FBI’s hostage recovery program, the Army started a criminal investigation and revoked his security clearance — ostensibly because he revealed classified information to the Congress member. (Admittedly, Amerine’s champion, Rep. Duncan D. Hunter (R-Calif.) had his own ethical problems, but Amerine followed the rules). The inspector general of the Defense Department found — incredibly — that Amerine had faced no retaliation, showing that IG offices are hardly independent in these matters. When an IG office decides against a whistleblower, there’s often nowhere else to turn, legally.
Trump’s vitriolic attacks on the Ukraine whistleblower as a “spy” who may have committed “treason” remind us that whistleblowers need stronger shields than they have. Congress should make the reporting process clearer, give teeth to the anti-retaliation provisions of the law and ensure that protections for intelligence agency workers are as robust as those for other government employees.
“Courageous truth-tellers can make all the difference,” Grassley said in February, memorializing Fitzgerald. Those words ring all the more true eight months later.