Over the past few years there has been a surge in whistleblower protections against workplace retaliation, affecting federal and corporate workers alike. Finding it more difficult to justify firing truth-tellers in the face of these buttressed rights, retaliatory managers are increasingly using a new method of retribution referring whistleblowers for criminal investigations and prosecutions when they engage in protected whistleblowing. The end result is while whistleblowers are now safer from firing for exposing wrongdoing, they are increasingly the targets of criminal investigations, referrals to the Department of Justice, and even prosecutions. Adding insult to injury, the culpable bosses circumventing the nature of the law are never held accountable.
Why is this happening?
There are many reasons why agencies find criminal referrals more attractive than retaliatory job actions (demotion, suspension, etc). Just some include:
- Criminal investigations are cheaper and easier than retaliatory job actions. It takes an army of attorneys and witnesses plus depositions, briefs and hearings to fire an employee. All it takes for a criminal witch-hunt is a sole investigator willing to act as a bully.
- Criminal investigations are risk free to the agencies, whereas retaliatory job actions may be found to violate federal protected personnel practices (PPPs). If a bogus, unfounded criminal investigation turns up nothing or refers a whistleblower who is ultimately vindicated there is no consequence for managers who have committed reprisal. The investigation simply closes. Managers taking actions against truth-telling employees through retaliatory job actions can be found to have violated PPPs, at which point the manager would have to defend their actions during an administrative hearing.
- Criminal investigations can essentially be perpetual, serving as a never-ending nightmare for whistleblowers. When one investigation uncovers no wrongdoing and is closed (typically only after being open for an elongated period), another retaliatory investigation can be opened the next day for a stated discrete reason, when in actuality each action is in response to whistleblowing. An employee operating under a continual cloud of investigation can find it impossible to change positions if they wish to leave the agency.
- Criminal investigations and prosecutions are far more effective at isolating the first whistleblower on a given issue terrorizing coworkers into silence compared to retaliatory job actions.
Because of these reasons, the face of whistleblower retaliation is evolving from firings to criminal investigations and prosecutions. It’s unjustifiable, and it shouldn’t be allowed.
What can be done?
GAP seeks to right this horrific wrong. As the nation’s leading whistleblower protection and advocacy organization, we’ve launched a campaign to stop this travesty to both justice and institutional accountability. While most of these retaliatory criminal investigations find no wrongdoing by the whistleblower (only after long, terrifying and costly trial waiting periods), the chilling effect emanating from such a heinous action is very real. All employees understand the message, and what speaking out may lead to the threat of jail. In effect, fewer corrupt activities are brought into the spotlight.
It’s time to put an end to this devious tactic.
From Firings to Criminal Referrals:
The Changing Face of Whistleblower Retaliation
With the help of members of Congress and the public, we can solve this problem. Through legislative action, we seek to do whatever we can to enact a bill that:
- Makes it illegal for the Offices of Inspectors General, or other agency investigatory bodies, to conduct investigations into federal whistleblowers’ actions that are explicitly protected by federal whistleblower statutes or regulations. Essentially, this law puts the onus on the investigatory body to preliminarily confirm that it is not participating in a retaliatory campaign.
- Provides legal protections to whistleblowers if the case reaches a court. Since such investigations often occur without the whistleblowers knowledge, if such a case were to proceed illegally or be referred to law enforcement, and result in charges being issued, these new protections would provide the whistleblower with an affirmative defense to challenge the charges.
- Hold accountable the managers who refer their whistleblowing employees to IGs or investigatory bodies for such protected whistleblower activities.
GAP is seeking coalition partners for this ambitious effort. We’ve already been graced with the partnership of Brave New Foundation. We’re currently discussing the campaign with key bipartisan lawmakers on Capitol Hill who value accountability as much as we do.
Real people, real examples
Our campaign isn’t directed toward closing an academic loophole federal whistleblowers face this kind of retaliation every day across all types of agencies. Many whistleblowers have prevailed despite these threats, and today, the public is aware of jaw-dropping corruption from their lawful exposure of information. These revelations include privacy-violating domestic surveillance of electronic communications; gross billion-dollar waste involving national security programs; cancellation of Federal Air Marshal protection on vulnerable flights; multiple nuclear power plants being alarmingly susceptible to upriver dam breaks; failure to deliver casualty-reducing armored vehicles to troops; fraudulent meat labeling; border control guards receiving overtime pay for doing little work; a canine heartworm medication that killed hundreds of dogs across the county; and extensive misconduct, including conflict of interest, in a Justice Department political prosecution, just to new a few.
In each of these cases, whistleblowers faced imprisonment for using free speech rights to expose and challenge government illegality. There is no excuse to seek imprisonment of those who defend the public against government abuses of power. Here are some select whistleblower cases:
John Coplin, USDA Meat Grading Whistleblower
The late John Coplin, the primary USDA station chief for meat grading in Chicago, spent his career challenging bribery of government meat graders in the citys stockyards. He exposed that in exchange for bribes, meat graders would label cheap slabs of meat as Choice or Prime more expensive cuts than they were worth. After he blew the whistle on this practice, Coplin was put under almost non-stop serial criminal investigation for 30 years. The USDA would accuse him of charges that couldnt be supported, cross-examine him about his entire professional life, and then drop the false charges within a few months of opening a new investigation. Coplin was the youngest station chief to be hired in USDA history, and given his expertise, should have been promoted to headquarters to run the meat grading program. However, he was always under criminal investigation and therefore ineligible for a promotion. Coplin was ultimately nicknamed the John Wayne of the USDA, and his courage was one of the case studies behind whistleblower protection in the 1978 Civil Service Reform Act.
Thomas Drake, NSA Whistleblower
Thomas Drake dedicated his life to safeguarding his country. A ten-year veteran of the Air Force (specializing in intelligence), he served as a CIA analyst and NSA contractor for 12 years before joining the latter as fulltime staff in 2001. Drake refused to look the other way upon discovering that NSA had instituted a program that sacrificed Americans’ security and privacy, and was laden with massive waste. He did what was right and reported the wrongdoing through proper channels at NSA, Congress and Department of Defense. When nothing changed, he made legal disclosures of unclassified information to a Baltimore Sun reporter, who wrote a series of award-winning articles that exposed this billion-dollar boondoggle at NSA. For acting out of conscience and refusing to stand by as the NSA disregarded Americans’ safety and privacy, the reprisal against Drake culminated in criminal prosecution, and he became the first whistleblower charged by the Obama administration under the Espionage Act. The government conduced an armed raid of Drake’s home, interrogated him repeatedly, and threatened him with spending “the rest of his natural life behind bars.” The case against Drake collapsed spectacularly just days before trial, and he is widely recognized as one of the most important whistleblowers of this millennium. For more on Drake’s case, click here.
Franz Gayl, Troop Safety Whistleblower
From 2003 to early 2008, over 60 percent of all American troop deaths in Iraq were a result of Improvised Explosive Devices (IEDs), or homemade roadside bombs. Franz Gayl, a civilian Marine Corps official (and former Marine himself), after returning from a five-month stay in Iraq, repeatedly recommended that Mine Resistant Ambush Protected vehicles (MRAPs) which are unquestionably better than Humvees at protecting troops from IEDs be sent to troops. Due to Pentagon bureaucracy, an 18-month unjustifiable delay in delivery of these vehicles claimed countless American lives. Franz blew the whistle on this delay, which prompted the vehicles to finally reach our troops. In response, he has endured intense retaliation for his efforts to push a reluctant bureaucracy to better protect its own. After multiple attempts to punish Gayl with standard personnel actions, the Corps made him the subject of a retaliatory criminal investigation based on pretextual charges involving the unauthorized use of a flash drive in a classified location. GAP proved that the flash drive did not even exist, and there was no prosecution. Still, the investigation resulted in suspension of Gayls security clearance and administrative leave. The Corps also threatened an investigation for criminal theft of government intellectual property when Gayl shared his knowledge with Congress. For more on Gayle’s story, click here.
Tamarah Grimes, U.S. Attorney Office Whistleblower
Tamarah Grimes was a paralegal specialist with the Office of the United States Attorney for the Middle District of Alabama. She blew the whistle to her supervisors on prosecutorial misconduct she witnessed during her assignment to several high-profile cases. In the prosecution of former HealthSouth chairman Richard Scrushy and former Democratic Alabama Governor Don Siegelman, Grimes provided evidence of: communications between prosecutors and a juror during trial; tampering with two key prosecution witnesses; theft and destruction of documents by Justice Department personnel; and continued involvement in the case by a U.S. attorney who had allegedly recused herself due to a conflict of interest based on her relationship with Karl Rove. The U.S. attorney immediately opened a criminal investigation against Grimes for allegedly surreptitiously audio taping DOJ employees and releasing the tapes outside the agency a crime that was purely fabricated and unproven. She was later accused of making false statements to DOJ investigators when she denied making any audio tape recordings. The DOJ attorneys then attempted to have Grimes criminally prosecuted and yanked her sensitive security status, which was a prerequisite for her position.
Victoria Hampshire, Deadly Dog Drug Whistleblower
In 2004, FDA Veterinarian Dr. Victoria Hampshire discovered that a popular heartworm medication for dogs was killing hundreds of animals. Her analysis and reports pulled the drug off the market. That should have been the end of it. But the drug maker, Wyeth Pharmaceuticals, conducted a smear campaign against her and used its connections within the agency to have her criminally investigated by the FDA on trumped-up charged false allegations that were eventually passed on to the United States Attorneys Office of Maryland. Although completely vindicated in the end, the horror story that Hampshire experienced illustrates how agency brass were manipulated to inflict wrongful action, simply based on the will and connections of corporate behemoths. For more on Hampshire’s story, click here.
Robert MacLean, Federal Air Marshal Whistleblower
Federal Air Marshal (FAM) Robert MacLeans professional life ended for seven years because he told the truth about threats to America. In 2003, MacLean revealed a cost-cutting plan to cancel FAM coverage from long distance flights on the eve of a confirmed al-Qaeda suicidal hijacking plan. The plan never went into effect after Congress protested based solely on MacLeans whistleblowing disclosure. Three years later, however, TSA fired him with a single charge of Unauthorized Disclosure of Sensitive Security Information (SSI) an unclassified hybrid secrecy label the TSA retroactively applied to the information that he disclosed. MacLean later discovered through a Freedom of Information Act (FOIA) request that he and Frank Terreri, another FAM whistleblower, were the subjects of a 182-page investigative report by then-Federal Air Marshal Service Director Thomas Quinn, who referred the charges for criminal investigation by the Department of Homeland Security Office of Inspector General (DHS OIG). During Director Quinns retaliatory investigation, he issued an investigative referral memorandum on MacLean to the DHS OIG. For more on MacLean’s story, click here.
Christian Sanchez, Border Patrol Whistleblower
Border Patrol Christian Sanchez was stationed at a Port Angeles, Washington office staffed by over 40 employees an office where there was insufficient work for the prior crew of four. Agents routinely passed the time taking daylong coastal drives and allegedly harassing local minorities. Sanchez took a stand when the entire crew began receiving overtime pay. He refused taxpayers’ dollars that he had not earned. In July 2011, Sanchez briefed Congress in a forum sponsored by House Oversight and Government Reform Chairman Darrell Issa (R-CA) and the Sunlight Foundation, where he disclosed his concerns. The Border Patrol responded to Sanchezs whistleblowing by: opening criminal investigations of him; refusing to assign him any meaningful work; ordering him to repeatedly move rocks from one location to another; following his car when he and his family traveled; placing his wife and children under constant surveillance while he was at work; ordering repeated “random” drug tests; and regularly subjecting him to public ridicule in front of his colleagues. Click here to watch the Congressional forum.
J. Kirk Wiebe, NSA Whistleblower
J. Kirk Wiebe worked at the National Security Agency (NSA) agency for decades. As a Senior Analyst, he helped develop a revolutionary information processing system called ThinThread that he believes could have detected and prevented the 9/11 terrorist attacks. But NSA officials ignored ThinThread in favor of Trailblazer a much more expensive program that not only ended in total failure, but cost taxpayers billions of dollars. With others, Wiebe blew the whistle on the clear mismanagement surrounding the Trailblazer fiasco, using appropriate channels to share their concerns with officials at the NSA, Congress Department of Defense. Despite their efforts, no one was held accountable at NSA for one of the worst intelligence failures in history. After resigning from the agency in protest, Wiebe helped make several key disclosures crucial to the ongoing public debate about America’s national security state, such as the first public description of NSAs massive domestic spying program, Stellar Wind, which intercepts domestic communications without protections for US citizens. Eventually, the FBI conducted coordinated raids of multiple NSA whistleblowers (including Drake, see above), and Wiebes family was subjected to a day-long armed raid, during which FBI agents rummaged through all the familys belongings, taking phone directories and computer hard drives containing business records and other personal information. Wiebe was never prosecuted, and some of his possessions were never returned. Click here for more on Wiebe’s case.
These are just some of the stories from whistleblowers unjustly criminalized. For more in-depth case studies of retaliatory criminal investigations, view GAP’s report on Whistleblower Witch-Hunts: The Smokescreen Syndrome.