Call to Action: Protecting Whistleblowers

According to the Organization for Economic Cooperation and Development (OECD), a group of wealthy countries, whistleblowers are essential in safeguarding the public interest and promoting a culture of accountability. By coming forward to the public about abuses of authority, they act as a critical check and balance against large, opaque institutions. But they’re not as protected as they should be.

At times, whistleblowers earn widespread praise, such as in 2002, when TIME Magazine named three whistleblowers (Sherron Watkins and Coleen Rowley of Enron, and Cynthia Cooper of WorldCom) as the “Persons of the Year.” But at other times, they receive harsh punishment from the very institutions they seek to call out, as in the cases of Edward Snowden and Chelsea Manning. And for each whistleblower you read about in the headlines, there are countless others who don’t come forward for fear of retribution.

Whistleblowers are crusaders for the truth, and their actions can have enormous consequences. Whistleblowers have helped impeach a president, uncover war crimes, and change the way we do business. But in each case, they’ve had to brave the reprisals of more powerful, and more corrupt, people and institutions.

By putting better whistleblower protections in place, countries can encourage a more transparent culture that better serves the public good, instead of sweeping its indiscretions under the rug.

Joseph Darby was 24 years old when he served as a military policeman at the Abu Ghraib prison in Iraq. While there, he found his peers and friends committing acts of sheer horror: dragging inmates on leashes, depriving inmates of sleep, and terrorizing inmates both psychologically and physically. Perhaps most startlingly, Darby encountered a culture within his cohort of pride in these acts of humiliation. His friends at Abu Ghraib called it enhanced interrogation, extreme measures, and ‘softening up’ the inmates. But the Geneva Convention, international law, and Merriam-Webster would’ve called it what it truly was: torture. And all of it was occurring in a jail where, according to a 2004 Red Cross report, 70 to 90 percent of the inmates had been arrested by mistake.

In January 2004, after weeks of internal conflict about what to do, Darby delivered two CD-ROMs of incriminating photographs to the US Army Criminal Investigation Command. Doing so meant risking retribution; it also meant turning in his friends. It wasn’t until four months later that Darby learned of the reach of his actions. He was watching CNN in the Abu Ghraib mess hall when he saw Secretary of Defense Donald Rumsfield give a congressional testimony on the abuses at Abu Ghraib. Despite Darby having been given a promise of anonymity, Rumsfield explicitly named Darby as a whistleblower on national television.

When Darby arrived home (a compassionate-leave request to take care of his chronically ill mother was rushed through) he found no fanfare, no recognition. But he did receive a personal letter from Donald Rumsfield asking him to not speak about the incidents at Abu Ghraib any further. Back in his hometown, Darby and his wife were met with strongly negative reactions from their neighbors and friends. They were called un-American. Their property was vandalized. They received death threats. They were forced to move into protective military custody at an undisclosed location.
In 2004, Darby won the John F. Kennedy Profile in Courage Award, joining the distinguished ranks of previous winners such as Kofi Annan, John McCain, and the public servants of September 11. But that’s little consolation for a man who exposed some of the most shocking abuses of the 21st century and sacrificed his safety to do so. A more compassionate and ethical set of provisions for whistleblowers would ensure that more people embody the bravery of Sergeant Darby—and less people adhere to the quiet complicity of torturers and their apologists.

In 2010, a manager at Wells Fargo reported to both his supervisors and a bank ethics hotline what he believed to be fraudulent behavior. Despite his up-to-then sterling performance record working in the wealth management group, he was promptly fired from the company after reporting his suspicions, which included evidence of multiple counts of mail and wire fraud.

In the years that followed, Wells Fargo would be rocked with a series of scandals that included creating millions of fraudulent accounts and outright swindling its customers. But it wasn’t until 2017 that the Labor Department’s Occupational Safety and Health Administration awarded the dismissed whistleblower $5.4 million for back pay, legal fees, and compensatory damages. They also said Wells Fargo was obliged to rehire him. Few whistleblowers receive such a resounding judgment in their favor.

But while in this case justice was served, the timeline is grossly inadequate: the investigation was started by the OSHA in 2011 and took six years to complete. While the whistleblower had been fired immediately, the Wells Fargo CEO was allowed to continue until 2016, even as the bank racked up billions of dollars in fines for its misbehavior.

If the consequences of doing the right thing are losing your job, then what is the average person incentivized to do? If America wants to cultivate a culture of doing the right thing, rather than the opposite, whistleblower protections need to be made a priority, not an afterthought.

In 2005, Dr. Susan Wood, who was the head of the FDA’s Office of Women’s Health, blew the whistle on the agency by resigning her position. The issue revolved around the release of the Plan-B ‘morning after’ pill. According to the FDA at the time, the science around the pill still wasn’t solved. But, according to Dr. Wood, the science was already solved, but being suppressed through politicized appointments by the Bush Administration. While working within the agency had proved fruitless, her resignation drew major attention to the issue, and the Plan-B pill was approved in 2006.

The politicization of science in federal agencies, and the resultant need for whistleblower protections at these agencies, continues. Under the Drumpf Administration, federal agencies have prevented some federal employees (at agencies such as the EPA, the DOE, the DOA, the National Park Service, and the Department of Health and Human Services) from making statements or speaking to the public or journalists. Similarly, the EPA has prevented its own scientists from speaking at a press conference and workshop about the effects of climate change. References to climate change have been erased from many federal websites, while other agencies, such as the Centers for Disease Control (CDC), have prohibited their analysts from using terms such as ‘diversity,’ ‘evidence-based,’ and ‘science-based.’

Working for a federal agency means being accountable to the public, and politicizing science presents a dangerous threat to the public good. In an increasingly speech-stifled federal environment, stronger whistleblower protections are needed so that experts and employees don’t need to resign before they can call out the mismanagement of authority and the politicization of science at their host agencies.

Our allies abroad understand that whistleblowers aren’t an inconvenience, but an asset. A 2017 study carried out by the EU Commission estimated the loss of potential benefits due to a lack of whistleblower protection in public procurement could be as high as €9.6 billion per year. This fact, combined with the fact that only ten EU countries currently offer comprehensive legal protections for whistleblowers, led to a new whistleblower protection bill being passed by the EU Parliament in April 2019.

Designed to give whistleblowers a high level of protection, the directive does two main things: facilitating reporting and preventing retribution. The bill facilitates reporting by creating safe channels of communication for whistleblowers to report information, both within their own organization and to public authorities. If appropriate action isn’t taken by going through these channels, then a whistleblower is permitted to make a public disclosure (i.e., talk to the media).

The bill also prevents retribution by protecting whistleblowers against dismissal, demotion, and other forms of corporate punishment. Under the new legislation, authorities are required to train officials on how to deal with whistleblowers in a more compassionate and equitable manner.

By giving greater clarity around a bolstered set of whistleblower rights, the EU is encouraging whistleblowers to come forward and offering them a shield of protection. The US would be wise to follow suit.

South Korea’s Act on the Protection of the Public Interest, which came into effect in September 2011, protects the rights of anyone who comes forward about a violation of the public interest, whether they come from the public sector or the private sector. It gets whistleblower protection right in three major ways: it defends the person coming forward, it discourages retribution against such a person, and it rewards the act of whistleblowing itself.

Under Korean law, once a whistleblower makes a report to the Anti-Corruption and Civil Rights Commission (ACRC), they are offered confidentiality and protected against ‘disadvantageous measures’ such as dismissal, disciplinary action, and discrimination. Employers who are found guilty of imposing such disadvantageous measures are liable to receive three years imprisonment and/or a fine of up to 30 million won.

Whistleblowers may also be able to receive financial compensation for any hardships they experience due to the act of coming forward. Finally, the ACRC may grant a reward to the whistleblower if their report contributes to the public good while also saving public funds, preventing loss, or contributing to institutional improvement. This reward, which is determined by a committee within the ACRC, can grow to 200 million won.

Paired with an anti-corruption bill, the South Korean whistleblower protection system demonstrates the understanding that a transparent system doesn’t just mean a more ethical landscape; it can have financial benefits, too. Returning some of that financial benefit to potential whistleblowers is a win-win proposition.

In April 2018, Senator Elizabeth Warren introduced the Anti-Corruption and Public Integrity Act as a way to increase trust in public institutions. While the meat of this bill focuses on addressing the very issues that whistleblowers report (i.e., conflicts of interest and ethics violations), it also includes transparency measures that ease the burden on the whistleblower.

Firstly, the bill calls for the creation of a US Office of Public Integrity, which would take charge of investigating, with subpoena power, potential ethics violations at the federal level. Currently, congressional investigations require a committee majority to issue subpoenas, meaning sometimes a single committee member is able to halt an investigation, and possibly for political reasons. An independent body such as the Office of Public Integrity would reduce the cases of agencies investigating themselves or devolving into partisanship.

Secondly, the bill proposes a more transparent culture in federal agencies. Warren’s bill would streamline the Freedom of Information Act (FOIA), making the onerous and bureaucratic process of gaining access to federal records easier, and thus making it easier to hold federal agencies accountable for their actions. The bill also supports transparency around science by requiring individuals and corporations to disclose funding or editorial conflicts of interest in their research.

While Warren’s anti-corruption bill doesn’t contain the explicit protections that whistleblowers need, it does create a more transparent environment where, ideally, fewer whistleblowers are necessary. A transparent governmental structure makes it harder for abuses of authority to pass by in secret, and Warren’s anti-corruption bill is a step in the right direction and an important component in the battle for ethics and accountability.

America and its institutions are not perfect, but whistleblowers can make it more perfect than it is. Left to regulate themselves, powerful corporations and law-making institutions can become corrupt. Whistleblowers are an important check and balance against that. It’s the 21st century, and the best defense against tyranny is not a well-armed populace, but a well-informed one. If you want to be involved on the side of truth and ethics, check out some of the resources on whistleblower protection below:

• Best Practices for Whistleblower Policies (Government Accountability Project)
• Why You Should Care About the War on Whistleblowers (The Intercept)
• The Whistleblower Protection Program (US Department of Labor)
• Whistleblower Rights and Protections (US Department of Justice)

Matt Zbrog

Writer

Matt Zbrog is a writer and freelancer who has been living abroad since 2016. His nonfiction has been published by Euromaidan Press, Cirrus Gallery, and Our Thursday. Both his writing and his experience abroad are shaped by seeking out alternative lifestyles and counterculture movements, especially in developing nations. You can follow his travels through Eastern Europe and Central Asia on Instagram at @weirdviewmirror. He’s recently finished his second novel, and is in no hurry to publish it.