Bravehearts Page 7

  Beneath the disheveled exterior lurked a razor-sharp intelligence and indefatigable work ethic. Devine was an All-American debater in college, graduating cum laude and Phi Beta Kappa from Georgetown; he knew how to draft an eighty-page argument for a judge, but also how to boil it down to an eight-second sound bite for a reporter. An anarchist at heart, he loved to battle what he called “the power structure.” At GAP, he helped to develop a model of activism that recruited various forms of public support to give whistle-blowers a fighting chance in arenas that, Devine argued, were rigged against them.

  “One person against a corporation is not a fair fight,” he wrote in his book, The Corporate Whistleblower’s Survival Guide, adding, “in conventional terms, the deck will be stacked against you no matter how solid your evidence or astute your strategy.” To help even the odds, GAP brought the outside world into the fight: “The key to committing the truth and getting away with it is strategic legal campaigns grounded in public solidarity that effectively turn information into power.”

  Enlisting the public to help whistle-blowers “turn information into power” involved exerting pressure in three mutually reinforcing areas: the legal, where GAP attorneys represented whistle-blowers as lawsuits flew back and forth; the political, where GAP worked to educate and mobilize local people who may be affected by what the whistle-blower exposes; and the media, where news organizations’ reporting on whistle-blowers’ charges could prove decisive in both educating the public and persuading government and corporate officials to change their tune.

  For a group run by lawyers, GAP invested relatively little faith or resources in the legal process per se. When Devine said GAP’s approach was to mount “strategic legal campaigns,” he meant “a holistic advocacy effort that is sort of like a political campaign.” The problem with relying on litigation, he added, is that “litigation needs to go to court, which is the turf of the status quo, the whole power structure. The whole principle of the court is that we don’t break precedent, we keep doing things the way we always have. Whistle-blowers are people who challenge the status quo. The court’s job is to preserve the status quo.”

  Asked for GAP’s theory of social change, Bea Edwards replied, “We see institutions that rhetorically present themselves as working for the public interest that in fact often represent specific special interests. But it takes whistle-blowers inside of those institutions to reveal how they favor the special interests. Often these institutions are reliant on public support. If you can show how those institutions are not representing the public, they can lose their public support, and that creates leverage for social change.”

  “We expose the secrets that the government doesn’t want anyone to know about,” Devine said. “And we try to make sure that everyone who needs to know about them, from workers on site to citizen groups to politicians to the media, is made aware, too. The whistleblower is the first rock in the avalanche of public revulsion we try to create against the indefensible.”

  Was it any surprise that Edward Snowden eventually found his way to this organization?

  A Backstage Pass

  Perhaps here is where the author should declare his personal interest in this story.

  I was an unpaid college intern at the Institute for Policy Studies in 1977 when GAP was founded. I didn’t attend the conference that gave rise to GAP, but I came to know Clark and Devine as colleagues when I later joined the IPS staff. In 1978 I began working on my first book and didn’t spend much time at the office, preferring to write at home. When I did stop by IPS, I sometimes ran into Louie or Tom and heard about their latest exploits. We stayed in touch over the years, and I’ve occasionally worked with GAP on journalistic projects, publishing whistle-blower-based exposés about nuclear weapons and airline security, the BP oil spill and other scandals in Vanity Fair, the Nation, Newsweek, and equivalent news outlets around the world.

  I therefore cannot claim to be perfectly objective about GAP, or about Clark and Devine. I have long believed, however, that journalistic objectivity is a myth—an apparently noble cover story for journalism that regurgitates conventional wisdom as dispensed by government officials and other representatives of the status quo. As any journalist must know, every step in the journalistic process involves subjective choices, from selecting which subjects get covered and which do not, to deciding which facts and voices are featured in a given story and which are not, how prominently they are featured, and so on. The inevitability of subjectivity, however, is no excuse for inaccurate or unfair reporting; the journalist has a sacred obligation to be not only accurate but fair to all points of view, especially those, I would argue, with which he or she disagrees. Good journalism does not impose the journalist’s opinion on others; it provides the information and perspective they need to make up their own minds.

  For what it’s worth, these guidelines have on occasion led me to disagree with GAP about the newsworthiness of this or that potential scoop. No investigative journalist worth his or her salt simply takes a source’s word for it; we re-report the story so we can independently verify what the facts are and try to determine where the truth lies. That process led me to abort one juicy story a GAP client offered when a fair reading of the relevant documents did not substantiate the would-be whistle-blower’s allegations about financial malfeasance on the part of a senior government official.

  So there you have it. You’re now equipped to judge for yourself what kind of guide I am for this book. For my part, I pledge to tell the story as fairly and accurately as I can, without fear or favor, to quote an exemplary journalistic motto that has been honored in rhetoric more than in reality. My long familiarity with GAP may impose limits on my perspective, but I trust it confers benefits as well. After all, from the time of GAP’s founding, I’ve had what amounts to a backstage pass to the de facto nerve center of the whistle-blower tribe, the place where the theory and practice of “committing the truth” has been more vigorously and successfully pursued than anywhere else.

  “Just Give Me Ten More Minutes!”

  It was nuclear power that first brought GAP and me together in a serious way, because my first book was about the nuclear industry. By 1979, the battle over nuclear power was as hot as any issue in America, and GAP found itself smack in the middle of it.

  My book, Nuclear Inc.: The Men and Money Behind Nuclear Energy, was based on scores of interviews with top executives at General Electric, Westinghouse, and other leading firms in the industry. I was all of twenty-two years old and I looked even younger, so the executives spoke to me quite freely, perhaps treating me like a friend of their own kids. For example, I asked John West, a nuclear vice president for the reactor manufacturer Combustion Engineering, whether the lack of a solution for storing nuclear waste posed a problem for the industry. West replied that the real trouble was not that there was no solution but that there were too many good solutions and the government, as usual, could not bring itself to select one. “I have a vulgar analogy,” the dough-faced executive confided. “It’s kind of like you have a blonde, a brunette and a redhead, real glamorous gals all lined up for action, and you can’t decide which one you’d like to go to bed with. They’re all good.”

  On the morning the Three Mile Island plant was undergoing the worst nuclear accident in US history, I interviewed a vice president at Westinghouse. At the time, a reactor meltdown was a distinct enough possibility that one member of the federal Nuclear Regulatory Commission was urging the evacuation of the surrounding Pennsylvania countryside. I suspected our interview would be rescheduled, given the urgency of the day’s events, but no. When I spoke with Leo Yochum, I mentioned that many observers believed that nuclear power was dead in the United States, especially now that Three Mile Island had intensified safety concerns. “I just don’t understand this talk about nuclear being dead,” Yochum replied, annoyance in his voice. “There is a nuclear imperative in this country. We know it, Wall Street knows it, and we’re prepared to meet it.”

  I
nterviews like these convinced me that nothing the industry could say or do would surprise me. But GAP’s investigations proved me wrong. Outlandish rhetoric is one thing, but GAP uncovered criminal behavior that put millions of lives at risk.

  In May 1980 a private investigator named Tom Applegate came to GAP with explosive information concerning the Zimmer nuclear power plant, a massive facility under construction outside Cincinnati. The local electric utility, Cincinnati Gas & Electric Company, had hired Applegate to spy on workers the company suspected were cheating on their time cards. Applegate joined the workforce and discovered that some workers were indeed overstating the number of hours they worked. But he also came across genuinely alarming information. A number of critical safety welds had been inadequately completed and had cracked, he told a CG&E vice president. What’s more, it appeared that a cover-up had been attempted: X-rays of the faulty welds had been doctored to make them appear sufficient.

  “So Applegate went back to the [CG&E vice president] and told him this information,” Devine recalls. “But little did [Applegate] know that the guy he was reporting to was the mastermind of the whole thing. The boss was trying to keep construction costs down and make Zimmer the cheapest nuclear plant in history. The VP told Applegate that he was fired and to keep his mouth shut or else. His exact words were, ‘You’re just a mouse, we are an elephant, we will crush you.’”

  Devine sought out the chief welder at the Zimmer plant as the first step in his investigation. “He told me that while he wanted to kill Tom Applegate for ratting on him about the time cards, Tom was right about the welding being cracked and unsafe.” As word spread of Devine’s investigation and he gained the trust of one worker after another, more insiders came forward. Eventually, GAP assembled sworn statements from fifty whistle-blowers raising questions about the safety procedures at Zimmer. The sheer number created credibility problems for CG&E and the other companies trying to build the plant. “They might say the first person is lying, or even the fourth or fifth in line,” says Devine. “By the time they say the fiftieth person is lying, [everyone] knows there is something going on.”

  The expanding roster of witnesses also handed Devine what every investigator dreams of: a trove of official documents proving that the alleged wrongdoing occurred. Like one half of an old married couple, Clark broke into fits of laughter as he recalled Devine’s single-minded rapture. “At one point Tom flew to Cincinnati and ended up being given four boxes of original company documents—the original documents, not copies,” Clark began. “There were seventy-six letters between Kaiser Engineering [one of the firms constructing the plant] and CG&E. Kaiser complained over and over again that CG&E wasn’t budgeting enough money for quality assurance: they had only four inspectors when normally there would be about two hundred.

  “Tom is so excited to get these documents that he doesn’t pay attention on the drive back to the airport and the cops pull him over for speeding,” Clark continued. “He doesn’t have bail money, so the cops throw him in jail. Somehow, he talks the cops into letting him take his documents with him while he waits to get bailed out. A few hours later, I get the money wired out there and a colleague goes to bail him out. But Tom doesn’t want to go—he’s too busy studying the documents! When the cops come to his cell, Tom yells at them, ‘Ten minutes! Just give me ten more minutes.’”

  The document haul paved the way for a guerilla tactic GAP went on to use in countless other cases over the years—a tactic that Edward Snowden employed as well. “CG&E didn’t know we had the documents,” Clark recalled. “So when we began to make public statements alleging safety flaws and possible cover-ups at Zimmer, the company attacked us for making irresponsible accusations with no evidence. We led them right into the trap. They thought they had destroyed the evidence. But we disclosed in court that we obtained documents CG&E had claimed didn’t exist, which exposed the company as a liar. I noticed Snowden did something similar. You release some damning stuff, and then wait for the government to try to bluster its way out. Then you release more documents showing that the government was lying yet again.”

  “We have been accused of hit and run tactics, to which I would proudly plead guilty,” said Devine. “If we were to fight a corporation that has unlimited resources and just duke it out with them, there wouldn’t be enough hours in the day to respond to all the motions that would be filed. So [we try to create] a situation in which they have to keep reacting to us, where they don’t know what we’re going to do next. We keep opening new fronts they have to devote resources to. There was a frustrated statement from the Nuclear Regulatory Commission towards the end of the Zimmer case that GAP keeps generating new allegations faster than we can put the old ones to rest…. That is the strategy of guerilla legal warfare: don’t react to the power structure, let them react to us.”

  By the end of the Zimmer battle, GAP and its allies had not only forced the cancellation of an unsafe nuclear power plant that was 97 percent constructed—something that had never happened before—the group had developed what would be its modus operandi for years to come. In brief: hear what a potential whistle-blower has to say; investigate the allegations rigorously (“We’re a small NGO going up against rich and powerful corporations,” said Clark, “so we can’t afford to be wrong”); counsel the potential whistle-blower on the likely consequences of speaking out, including losing one’s job, being attacked in the media, and other forms of retaliation. If the whistle-blower still wants to go ahead, seek out journalists who might report the story. Accumulate safety in numbers by alerting relevant activists, civic groups, and other possible supporters about the whistle-blower’s revelations. Then press GO.

  Killing a multibillion dollar project that’s nearly finished is the kind of thing that gets top management’s attention. Especially when it happens twice.

  At the very time GAP was fighting the Zimmer plant, it got drawn into a controversy over how to clean up the site of the Three Mile Island accident. In both cases, GAP found itself facing the Bechtel corporation, one of the most secretive, well-connected companies on earth. This was in the early 1980s, when President Ronald Reagan’s cabinet included two former senior Bechtel executives: George Schultz, the secretary of state, and Caspar Weinberger, the secretary of defense. GAP whipped the giant company twice in a row; the Wall Street Journal estimated that GAP cost Bechtel $10 billion in construction delays, penalties, and foregone revenues.

  At Three Mile Island, an engineer named Rick Parks warned GAP that, in Devine’s words, “we were going to have a complete meltdown because [the cleanup] was being done so illegally and messily. The climax would be Bechtel’s attempt to use a power crane to lift a 170-ton reactor vessel, which still contained smoldering radioactive rubble from the accident. Rick came to us four days before the lift was going to take place to say that the crane could fail because its electrical system had been damaged in the accident, but Bechtel wasn’t willing to take the time to test whether the crane would work. Rick and I worked forty out of the next forty-eight hours and came up with a fifty-three-page affidavit that we took to Congress. Eventually, the NRC told Bechtel to start over on the cleanup, including doing load tests on the crane, and that the public wasn’t going to pay for this second phase of work. The load tests failed a bunch of times, and even when they finally did carry the load, the crane froze in the air a number of times. I feel that without GAP the damage could have been incredibly extensive.”

  GAP’s success in these David and Goliath battles carried a cost. The board of directors at the Institute for Policy Studies was advised that companies such as Bechtel could retaliate against GAP by suing IPS, GAP’s parent organization. IPS’s assets could be frozen until such a lawsuit was adjudicated, effectively shutting down the organization for years. The IPS board voted to spin GAP off before that scenario could unfold. “We sort of got tossed out,” Clark recalled.

  Chickens Bathed in “Fecal Soup”

  The Government Accountability Project and I bot
h left IPS in the same year, 1984. I went off to write a book about the press and the Reagan presidency, On Bended Knee; GAP established itself as an independent nonprofit organization. The forced departure was difficult for GAP in some ways, Clark recalled, but there were advantages. Disconnected from IPS and its left-of-center identity, GAP could pursue philanthropic support and political work with a broader ideological range of partners—in particular, Republican lawmakers such as Senator Grassley. With his conservative suspicion of government spending, Grassley was inclined to support whistle-blowers who could bring to light “waste, fraud and abuse” in government programs, but the senator from Iowa would look askance at IPS’s condemnations of US imperialism and corporate greed.

  GAP continued to be active in the nuclear field throughout the 1980s, but it also branched out and scored victories in other areas, exposing billions of dollars worth of Pentagon cost overruns and the illegal logging of publicly owned forests. I saw little of Devine and Clark in these years, but when I did, they updated me on their battles. The one I least enjoyed hearing about concerned the US poultry industry and the ghastly conditions its chickens experienced on their way to Americans’ dinner tables.

  GAP had whistle-blowers inside the US Department of Agriculture who charged that USDA, under pressure from the poultry industry, was allowing disgusting practices in slaughterhouses. Once chickens were killed, they were shuttled through an assembly line where workers and machines plucked, washed, and otherwise transformed the carcasses into the plastic encased products that eventually appeared in grocery stores. But along the way, the whistle-blowers said, the birds floated in wastewater so foul—thanks to remnants of blood and fecal matter removed from their lifeless bodies—that some inspectors referred to it as “fecal soup.” For its part, industry insisted that the procedures posed no dangers and the inspectors were busybodies prone to exaggerating.