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Why the "Paul Revere Freedom to Warn" Act Should Be Passed, to Better Protect National Security Whistleblowers:
The Lessons of Deep Throat, the Plame Leak, and the Lindh Case


Monday, Jun. 13, 2005

I was as shocked as the rest of the country to learn that former FBI deputy director W. Mark Felt is Deep Throat. Deep Throat is, of course, the grandfather of whistleblowers - the most well-known unknown source, and perhaps the most significant in our history: When Felt leaked secrets to the Washington Post that exposed the Watergate scandal, he brought down President Nixon.

What shocked me even more, however, was Felt's timing. While his advanced age is an obvious reason for revealing himself as the Post's source, all other indicators counsel against it.

This is an Administration obsessed with secrecy and loyalty. It has established an interagency anti-leak task force to plug leaks. It has also done its best to deny whistleblower protection to employees of newly-established agencies in charge of transportation and homeland security. Its punishment of whistleblowers is notorious and merciless.

With the Executive coming down hard on whistleblowers, has Congress offered them protection? Sadly, the answer is no. Despite its encouraging title, the Whistleblower Protection Act of 1989 (WPA) does nothing to shield the kind of truth-tellers who, like Deep Throat, truly matter.

That's why it's so important that Congress pass the "Paul Revere Freedom to Warn" Act. In the next few weeks, Rep. Edward J. Markey (D-MA) - a senior Member of the Committee on Homeland Security - will introduce the bill.

If enacted into law, it will amend the WPA so that it serves its purpose of protecting whistleblowers - and thus the public interest.

The Bush Administration Has Repeatedly Punished Its Whistleblowers

At this moment in history, legislation like the Paul Revere Freedom to Warn Act is vital. That's because whistleblowers need protection now, more than ever - for the Bush Administration has proven it will pursue them with a vengeance.

Consider former Ambassador Joseph Wilson IV - who publicized the fact that there was little evidence that Saddam Hussein had sought uranium in Africa, and that the Administration knew that, yet made the "Niger uranium" claim nonetheless.

In retaliation, two sources whom columnist Robert Novak described as "senior" in the Administration destroyed the career of Wilson's wife, Valerie Plame, by revealing she was an undercover CIA operative. This reckless, punitive action not only may have put Plame in jeopardy, it may have also put those with whom she worked abroad at risk.

Less dramatic, but still significant, have been the Administration's attacks on its own former members. Consider what it had to say about former Treasury Secretary Paul H. O'Neill, who revealed in a book that an invasion and occupation of Iraq was being planned by the Administration prior to September 11. "We didn't listen to [O'Neill's] wacky ideas when he was in the White House, why should we start listening to him now?" asked an unnamed "senior official."

Or consider the Administration's harsh criticism of former White House counterterrorism chief Richard Clarke - who wrote in his book, and testified before the 9/11 Commission, that in 2001, President Bush had responded lackadaisically to repeated warnings of an impending terrorist attack. Vice President Cheney claimed Clarke was "out of the loop," only to be undercut by National Security Adviser Condoleezza Rice, who said he was in the loop but changed his position.

The White House's representative in the Senate, Majority Leader Bill Frist, questioned Clarke's ability by suggesting that Clarke was responsible for not preventing terror attacks, despite all Clarke's efforts to do just that. Frist questioned Clarke's loyalty for having spoken openly, suggested Clarke may have "lied under oath to Congress," claimed that Clarke had "dissembled in front of the media," (without providing any specifics), and accused Clark of "pointing fingers" to shift blame from himself, when in fact, Clarke was the only official to acknowledge his own failures.

My Own Experience: Blowing the Whistle Led to Harsh Punitive Measures

My own experience in the Administration teaches the same lesson: Those who speak out, for reasons of conscience, get punished.

I served as an attorney in the Justice Department's Professional Responsibility Advisory Office - an office whose very purpose was to render ethics advice and serve as a moral compass. But the Administration did everything to make sure that purpose would not be served.

In 2000, I received a merit bonus. In mid-2001, I received a raise. But after 9/11, and more specifically, my involvement in the first high-profile prosecution of a terrorism suspect, things dramatically changed for my career - and they changed because I spoke out, according to my job description and later my conscience, because I believed the Administration was behaving unethically.

In December 2001, the FBI in Afghanistan was holding accused "American Taliban" John Walker Lindh. I advised that an FBI interrogation of Lindh without his counsel would be unethical. In particular, I advised that such questioning would violate ABA Model Rule of Professional Conduct 4.2, which states that, "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter . . ."

That rule governs contacts with represented persons, and it applied because one of the operative facts I was given was that a lawyer that his father had specifically retained for this purpose represented Lindh. The rule - as interpreted by a majority of federal appellate courts - prohibited the very kind of interview that DOJ wanted to conduct: A pre-indictment, custodial, overt interview without counsel present.

Lindh had, at the time, not yet been indicted; he was plainly being held in government custody, and could not leave; the interview was to be overt, not undercover; and his counsel was not present in Afghanistan. Thus, in my view, and that of my superiors, who approved my advice before it was issued, the Rule plainly prohibited an interview.

But three days after I gave the advice that Lindh could not ethically be interviewed without his attorney present, I was informed that Lindh had been interrogated anyway. I then advised that, in light of the ethical violation, the interview might have to be sealed and only used for national security and intelligence-gathering purposes, not criminal prosecution. To use it for criminal prosecution, I noted, would be wrong since it had arisen from an unethical interrogation.

Three weeks later, however, former Attorney General John Ashcroft announced that Justice was filing a criminal complaint against Lindh.

Then, a few weeks after that, Ashcroft announced Lindh's indictment. Ironically, as he did so, Ashcroft claimed with a straight face that Lindh's rights "have been carefully, scrupulously honored."

Suddenly, the same Department of Justice that had hired me through its Honors Program, given me consistent raises, and awarded me a merit bonus, was my enemy. I was given an untimely, unsigned performance evaluation that excoriated me. If I didn't resign, I was told, the career-killing review would be placed in my permanent personnel file. I had planned on being a career civil servant.

Soon, I did resign, but not because I was being extorted with a vitriolic performance review. Rather, it was because I found out that paper copies of more than a dozen e-mails containing my advice on the Lindh case - e-mails that DOJ had been required to submit to the court in an order - had mysteriously gone missing. I went to extraordinary lengths to resurrect them from computer archives and provide them to my boss. I also kept copies in case they "disappeared" again.

After I resigned, the Justice Department continued to claim that it never believed that Lindh was represented by counsel at the time of his interrogation - even though I had been told definitively that he was, as reflected in my e-mails and the advice they contained.

I responded by disclosing the "missing" e-mails to Newsweek. I strongly suspected that DOJ had still not submitted these e-mails to the court because I did not believe the Department would have the temerity to make public statements contradicted by its own court filings. I felt the public should know about material that directly contradicted Ashcroft's public statements - material going to the heart of the government's case (the validity of Lindh's confession) - and showed DOJ knew very well what it had pretended not to know: That Lindh had a lawyer.

I went to the media because my complaints through internal channels had fallen on deaf ears - and caused me to suffer retaliation. As in Felt's case, the Administration itself was part of the problem, and complicity went high up the chain of command (in his case, to Nixon; in mine, to Ashcroft).

Going to Congress was not an option because, as a resident of the District of Columbia, I have no voting representative and the Justice Department has issued a directive that employees must clear any contacts with Congress with its Congressional liaison office. Going to the court was not an option because, as the Justice Department argued strenuously when I did try to go to the court, I have no standing as a former employee. So the last remaining remedy was to go to the press.

This time, the punishment was even harsher: At the government's behest, I was fired from my subsequent private sector job, placed under criminal investigation, referred for discipline to the state bars in which I am licensed as an attorney, and put on the "no-fly" list.

The Whistleblower Protection Act, On Its Face, Applied in My Case

How could this have happened - given that the Whistleblower Protection Act expressly authorizes disclosure of information by government employees to the media under circumstances such as mine?

A 2001 Federal Circuit case, Huffman v. Office of Personnel Management plainly stated that under the WPA, "disclosures to the press are protected." And the 1988 House of Representatives Report on the WPA (No. 100-413) listed the media as an independent entity to which disclosures may be made.

Moreover, my disclosure to Newsweek fit the Act's requirements. To qualify under the Act, an employee must "reasonably believe[]" the material evidences either "a violation of any law, rule or regulation," or "gross mismanagement, . . . an abuse of authority, or a substantial and specific risk to public health or safety."

Here, I not only reasonably believed an ethics rule had been violated (and probably also criminal laws governing destruction of evidence and obstruction of justice), but I also reasonably believed that it was an abuse of authority for DOJ to claim, contrary to fact, that it did not know that Lindh had a lawyer, when they had specifically informed me that he did.

In Theory, Government Attorneys Are Fully Protected by the WPA

So why wasn't I effectively protected? Was it because I was an attorney - bound by attorney-client privilege, and by state bar ethics rules on confidentiality? After all, the e-mails I sent - and later disclosed to Newsweek - provided legal advice to my client (and employer), the government.

Legal precedent firmly says no - for two main reasons:

First, and most simply, the WPA - as a federal statute - has no carve-out for attorneys, and it trumps state bar ethics rules, under the Constitution's Supremacy Clause. Certainly, since a federal statute prevails over a contradictory state statute, it must also prevail over inconsistent state bar rules - that do not even have a legislature's stamp of approval.

Second, even if the ethics rules of the bar of the District of Columbia - where most government lawyers and I practice - weren't trumped, they still would have allowed the very kind of disclosure I made.

D.C.'s Rule 1.6(d)(2)(B) allows a government lawyer to reveal client confidences or secrets "when permitted or authorized by law." (Emphasis added.) My disclosure was permitted, as I have argued above, by the WPA.

Why the Paul Revere Freedom to Warn Act Should Be Enacted Into Law

So why did I still suffer retaliation? The answer is that the WPA's protections are not strong enough.

Indeed, as current law stands, the Sarbanes-Oxley Act gives better protection to corporate whistleblowers than the WPA gives to FBI agents, TSA baggage screeners, or nuclear reactor security guards who report serious risks to national security!

The WPA has three major flaws - flaws the Paul Revere Freedom to Warn Act would remedy.

First, in order to have any teeth, the WPA should - and would, as amended by the Paul Revere Act - give whistleblowers that suffer retaliation recourse outside the hostile Federal Circuit, which currently has exclusive jurisdiction over whistleblower claims.

As amended by the Paul Revere Act, the WPA would allow a whistleblower to seek relief by filing a complaint with the Secretary of Labor - or if the Secretary has not issued a final decision within six months, to file suit in federal district court. It would also allow remedies for whistleblowers - including reinstatement with commensurate seniority, back pay with interest, punitive damages, and attorneys' fees - and consequences for the wrongdoers, including jail terms of up to 10 years for those who retaliate.

Second, the WPA excludes many groups in the national security community. As amended by the Paul Revere Act, it would protect all federal employees, contractors and private sector workers who report homeland or national security flaws; threats to public health and safety; violations of law, rules, or regulations; or fraud, waste, abuse or mismanagement.

Third, the WPA, as currently written, does not cover complaints made within a given agency - for instance, to a supervisor. But as amended by the Paul Revere Act, the WPA would protect whistleblowers who go to a supervisor, to a federal regulatory or law enforcement agency, or to a Member of Congress or congressional committee. That is as it should be: Congress should be able to listen to whistleblowers that report executive misconduct.

Whistleblowers Should Be Protected From Retaliation, Insofar As Is Possible

Employees should not have to choose between their consciences and their careers. Extending legal protection to national security whistleblowers is the least we can do to protect those who risk their livelihoods to protect us. They should not have to live in fear for decades - as Mark Felt must have.

No wonder Felt was afraid: Had he spoken out, he doubtless would have had to take lie detector tests and undergo a battery of bogus psychological examinations. His security clearance would have been yanked and his gun license revoked. Then he would have been fired, blacklisted, and prosecuted.

Modern day Deep Throats deserve better. But even after all these years, and the lessons of Watergate, we have not fully protected them. The Paul Revere Freedom to Warn Act would do just that.

Jesselyn Radack teaches and writes on legal ethics, national security and civil liberties. She currently works with the ABA Task Force on Treatment of Enemy Combatants. After more than a year, on February 23, 2005, the Attorney Grievance Commission of Maryland dismissed the Justice Department's complaint against her. The complaint to the D.C. Office of Bar Counsel is still pending after nearly two years.

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