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  The most intriguing example of whistle-blowing’s potential power is one that has gotten no public attention but could end up transforming American business, costing companies billions of dollars in penalties and sending corporate officers to prison. Thanks to bipartisan support in Congress and decades of behind-the-scenes work by GAP and other advocacy groups, some 80 million private sector workers in the United States now enjoy strong whistle-blower protections, at least on paper. There are even financial incentives for employees to report corrupt corporate behavior. Seeking to crack down on the kind of deceptive insider dealing that fueled the 2008 financial crisis, the Securities and Exchange Commission (SEC) instituted a “Bounty Program” that can reward a whistle-blower who alerts the SEC to corporate wrongdoing. In a stark reversal of long-standing practice, employees can remove incriminating documents from the workplace and give them to the SEC without being subject to legal retaliation.

  “The corporations are going crazy,” said Clark with a chuckle. “They’re calling it a theft of private property and trying to force their employees to sign agreements not to blow the whistle. They even want employees to give any Bounty Program money they receive back to the company.”

  “There is no question that it is not always easy or lucrative to be a corporate whistleblower,” said Jordan Thomas, a partner at Labaton Sucharow, which he describes as the first law firm exclusively devoted to representing SEC whistle-blowers. But Thomas, who as the former assistant director of the SEC helped draft its new whistle-blower policies, insisted that by no means is all gloom and doom.

  Passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act created “a different reality” for corporate whistle-blowers, argued Thomas, because it lets them report wrongdoing anonymously. That anonymity means, however, that the public never learns about these whistle-blowers, nor the lavish rewards they can receive. Dodd-Frank stipulates that a whistle-blower who provides information that leads directly to a conviction is entitled to 10 to 30 percent of the total monies recovered. One of Thomas’s clients walked away with $35 million, he told me. He added, “There’s a public interest to making this [incentive] clear. If we keep telling people that being a whistleblower is going to end badly, people aren’t going to step up and report with the frequency we need to prevent another financial crisis.”

  President Obama has been a strong supporter of corporate whistle-blower rights, but he has baffled advocates by simultaneously being unprecedentedly harsh toward government whistle-blowers. Obama promised as a candidate in 2008 that he would champion whistle-blowers and preside over “the most transparent administration in history.” In office, he honored that pledge only in regards to private sector whistle-blowers. Federal employees—in other words, people who worked for him—were a different matter, especially if they worked in the national security sector.

  The Obama administration has brought charges against seven whistle-blowers under the Espionage Act, far more than any previous administration has charged. It has also prosecuted, or threatened to prosecute, journalists on an unprecedented scale, while dramatically increasing the amount of government information that is classified. “It’s another example of the Obama enigma,” said Clark. “Obama has been without question the best president ever on corporate whistle-blowing and the worst ever on national security whistle-blowing.”

  A full account of American whistle-blowing is beyond the scope of this book, but even the abbreviated version offered here provides an instructive view of the nation’s recent history. In particular, the story of whistle-blowers gives a peek behind the curtain of the daily business of government and politics, revealing how the impulses of power and privilege on one hand and democracy and accountability on the other are frequently at odds.

  This alternative history has largely been hidden to date, because most whistle-blowers’ revelations get little coverage in major media. But the evidence indicates that whistle-blowers have had more impact on American life than commonly realized. When insiders like Snowden and Ellsberg, Coleen Rowley, and Jeffrey Wigand blow the whistle on high-level lying, lawbreaking, or other wrongdoing, the public can benefit enormously. Wars can be ended, deadly products taken off the market, criminals put in prison, scandals exposed.

  Of course there can be trade-offs to exposing secrets, as Hayden and other critics of Snowden argued, and not all self-described whistle-blowers are the real thing. During my years of investigating whistle-blowers’ claims I have come across some who were driven more by ego or personal animus than by concern for the public interest. Still other would-be whistle-blowers were doubtless sincere but exaggerated the importance of the alleged wrongdoing they had witnessed or lacked convincing evidence it had occurred. So how does one tell the difference between the valid and the counterfeit? How can rules be devised and enforced to ensure that the channels for legitimate dissent are protected but not overwhelmed by counterfeit claims from moral poseurs?

  Will Edward Snowden’s example lead to more whistle-blowing in the future or less? What makes a person become a whistle-blower in the first place? Why do a handful of individuals speak out while the vast majority do not? What is the proper balance between a whistle-blower’s “freedom to warn” and the government’s responsibility to keep the nation safe, or a corporation’s obligations to its shareholders? Since whistle-blowers generally rely on news organizations to publicize their concerns and the news organizations benefit in prestige and audience from doing so, what is the proper relationship between whistle-blowers and the media?

  Only when Snowden’s actions are seen within the context of the many whistle-blowers who preceded him can one understand how truly exceptional his achievements have been. The flip side is true as well: Snowden’s example invites us to acquaint ourselves with the larger tribe of whistle-blowers he joined and the tradition of principled dissent they embody.

  Part Two of this book explores these questions, seeking to explain why and how whistle-blowers do what they do, the price they pay, and the changes they’ve wrought. Part Three returns to Snowden, Drake, and Crane, three whistle-blowers whose cases raise profound questions about the future of whistle-blowing—and indeed democratic governance—in the age of Snowden.

  PART TWO

  Inside the Nerve Center

  ________________

  An Obligation to Make Things Right

  His hair was white now. The summer of 1967 was ages ago. But when a friend sent him a photo of his nineteen-year-old self, memories of those adrenalin-soaked days instantly flooded back, and he recounted the story as if it happened yesterday.

  The photo showed him from behind: a lanky white kid with hair unfashionably short for the era. A second young man, this one black, knelt beside him. Both clutched sheets of white paper. Facing them, a black mother and father and five children gathered on the porch of a small, plain but sturdy wooden house. Shoeless and wearing the cotton dresses and T-shirts of country folks, the family listened as the young black man made his pitch. The scene looked friendly but serious.

  “That’s me and my black friend Ralph,” said Louis Clark, sitting in a conference room at the offices of the Government Accountability Project in Washington. “We were trying to register black people to vote in Mississippi.” Clark had first come to Mississippi three years earlier as part of a missionary trip organized by his church in Illinois. “We went to help build a school for poor kids,” he recalled. “The kids were white, but we could feel the racial tension in the air. This was 1964. The church we were building was ten miles outside the town of Philadelphia, where three white civil rights workers were murdered that summer. I went back [in 1967] because I felt an obligation to help make things right.”

  Helping to make things right entailed risks. Clark’s car had out-of-state license plates; many locals didn’t appreciate outsiders coming to their state and “stirring up trouble,” as they put it. “I got pulled over by cops fourteen times that year,” said Clark. “Each time, I thought, This could
be the end.”

  And there was the Ku Klux Klan.

  “One night, Ralph and I were meeting with a group of black community leaders, way out in the countryside. Somehow the Klan found out, because as we walked toward our car afterwards, a couple of guys were waiting outside. They started taunting us, pushing, trying to get us to react.

  “Suddenly a big sedan pulled up, and that distracted them long enough for Ralph and I to jump into my car and speed off. They piled into the sedan and zoomed after us. We were flying down these country roads as fast as I could drive. I saw their headlights in my rearview mirror, and they were gaining on us. My body flushed with sweat.

  “Luckily Ralph was from that area, so he knew the back roads. He had me make a sudden left turn, and the Klan guys went speeding past. They must have turned around pretty quickly, though, because before long their headlights were in my rearview again.

  “After what seemed like forever, we saw the local Freedom Center where we were staying, which was a safe zone. I barely slowed down as we spun into the driveway. The Klan guys were so close we could hear them shout rebel yells as their car shot past in the dark. ‘Nigger lovers, go home. We’ll get you next time,’ that kind of stuff.

  “I remember I couldn’t shut off the car. I literally couldn’t turn the ignition key, I was shaking so bad. I was crying, I was scared, I was mad. I called my parents and told them, ‘I don’t think I believe in nonviolence anymore.’”

  Who Coined the Term “Whistle-blower”?

  Eleven years later, Louis Clark found himself running a fledgling nonprofit organization called the Government Accountability Project. By then he had completed seminary studies and been ordained as a Methodist minister, regaining his faith in nonviolence along the way. He had graduated from law school and moved to Washington, DC. At a party one night, a friend mentioned an idea some antiwar colleagues had. They were convinced that Daniel Ellsberg was not the only insider who might speak out about wrongdoing inside the military, and they hoped to launch an organization to assist such truth-tellers. Intrigued, Clark offered to work for the organization for free for the first two months, promising with a thirty-year-old’s brashness that he would need only two months to prove himself indispensable.

  Thirty-seven years later, in 2015, Clark was still there. As president of GAP, he was responsible for setting the organization’s strategic direction and soliciting the donations from foundations and individuals that comprise roughly 90 percent of GAP’s $3 million a year budget. “Our theory of social change is based on transparency,” Clark told me. “Whistle-blowers enable you as a citizen to know what governments and corporations are doing. If it’s affecting you badly, you have the means to challenge it. I don’t think people are jaundiced about that kind of information. If a hundred people die from eating peanut butter crackers that weren’t produced safely, people care about that.”

  Since its founding in 1978, GAP had counseled more than seven thousand whistle-blowers from both the public and the private sectors, said Clark. The organization helped whistle-blowers defeat some of the most powerful bureaucracies (e.g., the US Department of Defense) and politically connected corporations (e.g., Bechtel) on earth, though it also watched many whistle-blowers endure defeat and punishment. GAP’s successes were based partly on shrewd collaboration with the news media; its clients had been featured in virtually all of the major outlets in the United States as well as countless local ones.

  GAP also fought on Capitol Hill and elsewhere to add whistle-blower protections to thirty-two separate federal, local, and international laws. Working with Republicans and Democrats alike but championed most consistently by Iowa Senator Charles Grassley, GAP and a handful of allied groups helped to pass the Whistleblower Protection Act of 1989, the Sarbanes-Oxley Act of 2002 (formally known as the Public Company Accounting Reform and Investor Protection Act), the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, and the Whistleblower Protection Enhancement Act of 2012.

  If there was such a thing as a nerve center of the whistle-blower tribe, GAP was it. No other group came close to matching the number of whistle-blowers who have passed through GAP’s doors over the years, nor the group’s record of achievement and influence in so many aspects of whistle-blower law, politics, and practice. Other groups operated in the same “good government” sphere: Common Cause, Taxpayers for Common Sense, and the Project on Government Oversight, as well as Transparency International on the global level. But none of these groups represented individual whistle-blowers, as GAP did. Some private firms litigated on behalf of whistle-blowers, but their clients were chosen based largely on how big a financial settlement might be won. For GAP, public interest was the primary criterion.

  “We only get behind a whistleblower who has a public interest disclosure that is relevant to the public on a relatively grand scale,” said Beatrice Edwards, GAP’s executive director from 2007 to 2015. “We get a lot of people coming to us and saying, ‘The guy in the next office is running a small business in the restroom,’ or ‘My boss comes in on Sunday to use the phone to call his family in India.’ We don’t get involved in that kind of petty corruption.”

  GAP emerged from a conference organized in 1977 by leaders at the Institute for Policy Studies (IPS), a left-of-center research organization in Washington. Founded in 1963, IPS had been a central player in the civil rights and antiwar movements, earning a spot on President Nixon’s “enemies list.” Richard Barnet and Marcus Raskin, the IPS cofounders, had resigned from the Kennedy administration after blanching to hear top Kennedy aide McGeorge Bundy tell a meeting of the Joint Chiefs of Staff, “If this group can’t bring about disarmament, no one can.”

  IPS played a key but unsung role in releasing the Pentagon Papers, according to Ellsberg. Ellsberg had been trying without success to get a senior member of Congress to release the papers by inserting them into the Congressional Record. “About that time I had dinner with Barnet and Raskin and their wives,” Ellsberg told me. “They urged me to give the Pentagon Papers to the New York Times. Only years later did I find out that they had already tipped off someone at the Times.”

  IPS was also close to Ralph Nader, the consumer advocate whose 1965 book, Unsafe At Any Speed, relied on testimony from company engineers to reveal how Chevrolet had chosen an unsafe design for its car, the Corvair. The book was a smash bestseller and made Nader the country’s leading public citizen. In January 1971, five months before Ellsberg released the Pentagon Papers, Nader organized a conference to boost the role and impact of truth-telling insiders such as those he cited in Unsafe At Any Speed.

  Apparently it was Nader, at this Conference on Pro-fessional Responsibility, who first coined the term “whistle-blower.” In the past, the term carried an odor of betrayal, Nader noted in a speech to the conference: Americans, he said, tended to think of a whistle-blower “as ‘a fink’ or ‘a stool pigeon,’ a ‘squealer’ or ‘an informer,’ or he ‘rats on’ his employer.” But whistle-blowers deserved the public’s respect and thanks, argued Nader, for they were often the first to learn about problems such as unsafely designed vehicles that could endanger the public at large.

  The 1977 conference organized by IPS aimed to turn Nader’s strategic insight into an operational reality. Ellsberg remained central. “I’m not sure that there would have been a GAP without Ellsberg,” Clark said. “His experiences with IPS were extraordinarily valuable for planting the seed for the creation of GAP. IPS saw the value in someone like Ellsberg exposing the lies upon which that war was founded.”

  In its early days, GAP was more of a public relations outfit than a legal organization, Clark recalled, precisely because of the problem Nader highlighted—a problem that has plagued the whistle-blower community ever since: is “whistle-blower” really the best name for these individuals? More than a few members of the tribe, then and now, have objected to the term. Snowden said that it “other-izes” people who speak out about alleged wrongdoing when such speaking out sho
uld be expected from everyone. Jeffrey Wigand, the Big Tobacco scientist, preferred the term “a person of conscience.” In GAP’s early years, Clark recalled, “We got heavily involved in trying to change the negative image associated with whistle-blowing. In a lot of our public materials back then you would see red, white and blue flags all over the place.”

  “Turn Information into Power”

  A legal staff began to take shape at GAP with the arrival of Tom Devine in 1978. A precocious student at Antioch Law School, Devine had already coauthored a book describing how President Nixon had secretly tried to replace the government’s nonpartisan civil service system with a political hiring system that could reward friends and punish enemies. Devine convinced Clark that GAP should establish a clinic at Antioch that could train students in whistle-blower advocacy and protection and thereby obtain low-cost legal talent. Devine ran the clinic for the next ten years, and it became the chief source of expertise for a group that waged a chronic struggle with financial solvency.

  Devine, too, was still at GAP thirty-seven years later. As its legal director, he was the organization’s animating spirit, and many were the opponents who had underestimated him. Even in his early sixties, he conveyed a childlike guilelessness, a mix of flower power optimism and goofy kindness. Short of stature, he was fond of rhyming invented names into questions, as in, “What’s the story, Rory?” or “How’s it going, Owen?” In a city of almost totalitarian fashion conformity, he donned the lawyer’s obligatory suit and tie only when appearing before a judge or a congressional hearing; otherwise, it was jeans, tie-dyed T-shirt, and scuffed Wallabees. In winter, he could be mistaken for a homeless man, trudging along K Street, the pockets of his hooded Army jacket bulging lopsidedly with a mishmash of notebooks, newspapers, a tape recorder, and left-over lunch while over his shoulder he toted a crushingly heavy day-pack with legal briefs he carried home for late-night client calls and writing assignments.