Sunday, December 21, 2014

Government Accountability Project reports on the criminalization of whistleblowing

Laws based on ignorance and fear tend to cripple democracy.

The US seems to be awash in successive waves of criminalization-- of poverty, homelessness, HIV, "wrong" skin color, mental illness, immigration, dissent, and so forth and so on, resulting in the largest per capita prison inmate population in the world.

Corporate executives are exempt.

Law enforcement seems to have broad latitude in their decsions to investigate and prosecute. Starting a few years ago, it was also widely reported that government employee whistleblowers and their media partners were subject to an unprecedented wave of prosecutions.

The Government Accountability Project's staff spoke out against this wave, and has identified and described the trend and the individuals who have been subject to this treatment.

Digital Commons- GAP's Radack writes about public servant whistleblower criminalization

Thomas Drake, a former senior executive at the NSA, had concerns about massive waste, mismanagement, illegality, and a willingness to compromise the privacy of U.S. citizens.44 He reported his concerns to as many people within the IC as possible, including his immediate supervisors, the NSA’s inspector general, the DOD IG, and Congressional intelligence committees.45 When all these routes produced no results, he went to a Baltimore Sun reporter with information that was not even classified.46

In a shorter blog post, GAP staffer Shanna Devine describes why this is happening, her focus being criminalization of truth-telling government employees.

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.
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