In a country that can often be plagued by fear and greed, it takes a lot of nerve to stand up against authority. Individuals who choose to defy the status quo and speak out against issues that have been swept under the rug, known as whistle blowers, are crucial to a democratic society. So why, when these individuals often have the most to loose, do they continue to speak out? Throughout generations in which whistleblowers have revealed the inner demons of society, including the Vietnam War and corruption in the police force, the government has stepped forward to protect these individuals. With multiple laws in place, monetary compensation, and media support, whistleblowers occasionally do prevail. However, often the issues they strive so hard to reveal become huntsmen for them, putting prices on their head. So, what leads a whistleblower to come forward? What does the government do to protect them? And how, when in a country so politically and emotionally clouded, can whistleblowers bring clarity to society?
By definition, whistleblowers are individuals that call for the end of an activity or behavior. “An employee who discloses information that s/he reasonably believes is evidence of illegality, gross waste or fraud, mismanagement, abuse of power, general wrongdoing, or a substantial and specific danger to public health and safety. When information is classified or otherwise restricted by Congress or Executive Order, disclosures only are protected as whistleblowing if made through designated, secure channels” (White, “What is a Whistleblower”). Whistleblowing is broken down into two classifications – either private or public. These classifications are dependent on whether the organization the individual choses to blow the whistle on is a private or public sector. Likewise, the results of whistleblowing are impacted greatly depending on which sector the individual calls out.
Delving into whistleblowing in the public sector is a rather complex subject, with a rich history. In fact, legislation regarding whistleblowing in the American government dates back to the Civil War. This is evidenced by the False Claims Act (FCA), a statute in the Code of Laws of the United States of America (USC), which was enacted during the 1800’s, and is still used today. “The False Claims Act (FCA), 31 U.S.C. §§ 3729 – 3733 was enacted in 1863 by a Congress concerned that suppliers of goods to the Union Army during the Civil War were defrauding the Army. The FCA provided that any person who knowingly submitted false claims to the government was liable for double the government’s damages plus a penalty of $2,000 for each false claim. Since then, the FCA has been amended several times” (The False Claims Act: A Primer). It is important to define what conduct creates FCA liability, and what is meant by a claim. The Act itself defines a claim as “a demand for money or property made directly to the Federal Government or to a contractor, grantee, or other recipient if the money is to spent on the government’s behalf and if the Federal Government provides any of the money demanded or if the Federal Government will reimburse the contractor or grantee” (31 USCA). Therefore, in simpler terms, a false claim is when a perpetrator knowingly presents a fraudulent claim for payment, meaning that they request unlawful payment from the United States government.
Henceforth, the FCA has many sublets due to the increasing amount of claims one could make against the government. FCA liability is broken down into statutes: Section 3729(a)(1)(A) and (B) defines liability as an individual that knowingly submits a fraudulent claim to the government, causes another individual to submit a fraudulent claim, or knowingly submits a fraudulent record or statement to receive compensation from the government. Section 3729(a)(1)(G) is referred to as the “reverse claims section” and it defines liability as an individual who submits a fraudulent claim in order to avoid having to pay money to the government. Lastly, Section 3729(a)(1)(C) defines liability as individuals whom conspire to violate the FCA.
A major factor of the FCA is what is referred to as “qui tam.” It is defined as “a unique mechanism that allows persons and entities with evidence of fraud against federal programs to sue the wrongdoer on behalf of the government” (White, “Qui Tam”). Qui tam dates back even farther than the False Claims Act itself. In fact, “The term “qui tam” is derived from the Latin adage qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning ‘he who pursues this action on our Lord the King’s behalf as well as his own.’ Qui tam lawsuits extend back to 695 A.D., when the Anglo-Saxon King Wihtred of Kent issued a decree prohibiting labor on the Sabbath, which included a provision that “if a freeman works during the forbidden time between sunset on Saturday evening and sunset on Sunday evening, he shall forfeit his healsfang, and the man who informs against him shall have half the fine, and the profits arising from the labour” (White, “Qui Tam”). Despite its more ancient roots, qui tam found its way into the colonies in the 1700’s, and into America’s Continental Congress over a century later in 1863. This refers back to the original enactment of the FCA, when Congress was concerned that those supplying goods to the Union were defrauding the Army. That year, Congress, along with President Abraham Lincoln, created the framework of the FCA on the pre-existing notion that citizens would receive financial rewards for reporting corruption within the United States. Therefore, the FCA was constructed such that citizens, also referred to as “relators”, would be used to expose fraudulent behavior and that they would be monetarily compensated for discovering and bringing to light any false claim. During its enactment, the Act stated “citizens were deputized to be private attorneys general and were compensated for their work by receiving 50% of the money their lawsuits recovered for the Treasury” (White, “False Claims Act History”).
Since its enactment in 1863, the FCA has undergone a variety of amendments and alterations. Though its qui tam provision has remained, its initial pay grade has dramatically decreased since the times of President Lincoln. The change began in 1943, when the government declared that the guaranteed 50 percent share of the lawsuit relators received was eliminated. This percentage was reduced by half, and limitations were placed on the percentage based on government action. “If the government intervenes in the qui tam action, the relator is entitled to receive between 15 and 25 percent of the amount recovered by the government through the qui tam action. If the government declines to intervene in the action, the relator’s share is increased to 25 to 30 percent. Under certain circumstances, the relator’s share may be reduced to no more than ten percent” (“The False Claims Act: A Primer”). Furthermore, in 1986 the FCA was again drastically altered to include an increase in damage fees, raising the price from $2,000 to a range of $5,000 to $10,000. Since 1986, the FCA has been amended four additional times. The latest amendment occurred May 20, 2009, when President Obama signed the Fraud Enforcement and Recovery Act of 2009. “The Act closed a number of liability loopholes, making it easier for qui tam relators to bring and maintain False Claims Act lawsuits on behalf of the federal government and it also, inter alia, provided for more workable and simplified investigative tools to investigate qui tam lawsuits” (White, “False Claims Act History”).
The various amendments made to the FCA come full circle to whistleblowing in the public sector, in which employees often call for action against government agencies. Title 5 of the United States Code Sec. 1213 states “any disclosure of information by an employee, former employee, or applicant for employment which the employee, former employee, or applicant reasonably believes evidences a violation of any law, rule, or regulation; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety” (5 USCA). Whistleblowing in the public sector often results in felony charges and jail-time. Due to the fact that many individuals are classified as “at-will employees”, they can be fired without just cause – this means they suffer the most retaliation from their employer. We observe similar circumstances in private sector whistleblowers, which are prospect to face termination as well as legal or civil charges.
Given these steep circumstances a whistleblower may face, it has become very clear over time that laws must be put in place to protect them. The FCA has included protection for whistleblowers under Section 3730 of the Act. “Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment” (31 USCA). In terms of relief, the Act ensures that the relator will be reinstated at the same seniority status they had previously held, with the addition of two times the amount of back pay, interest on the back pay, as well as compensation for any special damages including legal fees. In addition to the FCA, a variety of other United States statutes have been passed through the years to attempt to guarantee safety to those who call for justice. For example, the Lloyd-La Follette Act of 1912 was signed in order to provide protection to government workers. “Employees of the Federal government were guaranteed the freedom to supply information about agency malfeasance to Congress without fear of retaliation” (“How Are Whistleblowers Protected?”). In 1972 a similar act was passed to ensure further protection to whistleblowers who were also Federal employees. The Water Pollution Control Act of 1972, also referred to as the Clean Water Act, was the first of legal statutes to involve false claim repercussions with environmental protection laws. Since its enactment in 1972, many acts have followed its path. Likewise, the Surface Transportation Assistance Act of 1982 as well as the Pipeline Safety Improvement Act and Sarbanes-Oxley Act of 2002 were enacted to safeguard employees who reported false corporate activities. “Initially enacted to safeguard truckers, [Surface Transportation Assistance] law extended protection from retaliation to employees who reported regulatory violations to the Occupational Safety and Health Administration (OSHA)” (“How Are Whistleblowers Protected?”).
Since the 1970’s OSHA has been a major safe haven for employees who feel as though they have been wronged by their employer or that their employer has done wrong by the American government. On December 29, 1970, Congress passed the Occupational Safety and Health Act of 1970. This Act, commonly referred to as the OSH Act, encourages “employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment, and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions” (Pub. L. 91-596). Since the initial signing of the OSH Act, Congress has expanded OSHA’s whistleblower initiative to defend employers from retaliation under 22 federal laws. In fact, OSHA has a Whistleblower Protection Program, which was enacted by the Whistleblower Protection Act of 1989. The Act exists to safeguard Federal employees who report fraud within government agencies. “Allegations of whistleblower reprisals pursuant to more than 20 U.S. statutes are overseen by the Office of the Whistleblower Protection Program. The extensive whistleblower protections incorporated into these and other Federal statutes reflects a legislative intent to promote the deterrence and prevention of fraudulent claims against the government. An equally essential legislative goal is private enforcement of public health and safety regulations” (“How Are Whistleblowers Protected?”).
With all of these acts in place, it leads one to wonder why they were put forth in the first place. What could possibly be so bad that over 22 statutes must exist to protect them? The answer to that question lies within a bloodstained history, one in which those with power cruelly held the upper hand. To begin first is the example of Julius Chambers, a reporter for the New York Tribune and one of America’s first investigative journalists. In 1872 Chambers admitted himself to New York’s Bloomingdale Insane Asylum upon hearing reports of abuse at the institution. Chambers feigned insanity in order to be admitted into the institution, and after his release published an exposé in the Tribune that corroborated the stories of patient abuse. His piece included the lines, “how to imprison a sane man and what it costs medical science at fault,” “an examination confined to the counting of the pulse,” “an expert decides a lunacy case in less than one minute,” and “a police justice commits without the examination required by law, though certifying the examination was made” (“The Lunacy Law Tested: Julius Chambers”). 12 patients were subsequently released following the publication of the piece, and legislature involving the mentally ill was significantly rewritten (“The Lunacy Law Tested: Julius Chambers”). In 1906, Upton Sinclair followed suit with his novel, “The Jungle.” Sinclair exposed conditions inside Chicago pig slaughterhouses that many were not aware of. In a similar fashion, “through her watershed book ‘Silent Spring,’ Rachel Carson exposed the residual effects of DDT chemicals on animals and humans, inspiring the widespread ban on DDT chemicals that went into effect in 1972” (White, “False Claims Act History”).
The decade for whistleblowers did not truly hit its peak until the 1970s. It is in these following years that whistleblowers in the private and public sector shocked society at a local and national level. The first, and most widely known, whistleblower is Daniel Ellsberg. Ellsberg worked as a “strategic analyst at the RAND Corporation, and consultant to the Defense Department and the White House, specializing in problems of the command and control of nuclear weapons, nuclear war plans, and crisis decision-making” (Ellsberg, “Biography”). In the year 1965 Ellsberg was transferred to the U.S. Embassy in Saigon in order to evaluate possible resolutions in the field. It was here that Ellsberg saw the horrors of the Vietnam War, a country that had already been at battle for over ten years. In 1967, Ellsberg returned to the RAND Corporation, where he was assigned to work on U.S. Secretary of Defense Robert McNamara’s study of U.S. decision-making in Vietnam, a study that spanned from 1945 to 1968 – multiple presidencies – and was classified as top secret. Within these papers were the innermost secrets of the United States’ political and military involvement in Vietnam. The official title of the study was the “Report of the Office of the Secretary of Defense Vietnam Task Force” and “in preparing the study, the analysts drew on classified material from the archives of the Department of Defense, State Department and the Central Intelligence Agency (CIA). Completed in 1969 and bound into 47 volumes, it contained 3,000 pages of narrative along with 4,000 pages of supporting documents” (History Staff, “Pentagon Papers”).
In the pages of the report, Ellsberg discovered that past and current presidents had preconceived the war in Vietnam. Under President Harry S. Truman, the U.S. provided military aid to France, who was currently at war with Viet-Minh – the beginnings of American involvement in Vietnam. Furthermore, in 1954, “President Dwight D. Eisenhower decided to prevent a communist takeover of South Vietnam and to undermine the new communist regime of North Vietnam . . . President Lyndon B. Johnson intensified covert warfare against North Vietnam and began planning to wage overt war in 1964, a full year before the depth of U.S. involvement was publicly revealed” (Encyclopedia Britannica, “Pentagon Papers”). To make matters worse, the military analysis had document proof that the bombing of North Vietnam ordered by President Johnson in 1954 had went against the judgment of U.S. intelligence, who had believed the event would not cease North Vietnamese support of the Viet Cong uprising in South Vietnam.
As the war in Vietnam began to spark heated controversy in America, Ellsberg began to feel uneasy with the information he was holding captive. He made the decision to photocopy all 7,000 pages of the report in secret, knowing that if he was caught by security he would be terminated from his position and jailed for sharing confidential, top-secret federal information. In 1971, he gave the information to the State Foreign Relations Committee, and when he wasn’t pleased enough with their action he forwarded the information to the New York Times, the Washington Post, and 17 other national newspapers.
“The sensational affair began quietly with the dull thud of the 486-page Sunday New York Times arriving on doorsteps and in newsrooms. A dry Page One headline — VIETNAM ARCHIVE: PENTAGON STUDY TRACES 3 DECADES OF GROWING U.S. INVOLVEMENT – was followed by six pages of deliberately low-key prose and column after gray column of official cables, memorandums and position papers” (“Cover Story”). It took almost an entire 24 hours for the public to take notice. When networks began to inquire, the White House, then headed by President Richard Nixon, stayed mum on the subject. Upon further public outcry, Attorney General John Mitchell obtained a temporary restraining order against the New York Times which halted the series the paper planned on printing after only three installments. Mitchell’s reasoning being that the publication would cause “irreparable injury to the defense of the United States” (“Cover Story”), the word immediately took notice.
The restraining order was the first of many legal blunders, as the Nixon administration battled to keep the truth suppressed. Naturally, their first order of business was to press charges against Ellsberg. His trial, with which he stood facing 12 felony counts that could potentially result in a 115 years of jail time, was dismissed in 1973 on grounds of “governmental misconduct against him, which led to the convictions of several White House aides and figured in the impeachment proceedings against President Nixon” (Ellsberg, “Biography”). More importantly, the case against Ellsberg rose public outcry – how could an individual who risked his job and the safety of his family be persecuted by the government because he revealed information the American people deserved to know? Though Ellsberg came through his scandal unscathed, not all who blew the whistle on American fraud were as lucky.
This statement holds true for Frank Serpico, a retired police officer of the New York Police Department who almost lost his life while trying to bring justice to the city of New York. For many people, the name “Serpico” is synonymous with that of Al Pacino, who played Serpico in a 1973 film of the same name. The film “seared the public memory with painful images: of the honest cop bleeding in a squad car rushing to the hospital, where, over months of rehabilitation, he received cards telling him to rot in hell” (Kilgannon, “A Look Back”). In this case, reality was no less traumatizing than the fiction. Frank Serpico worked in Brooklyn’s 81st Precinct, beginning in 1959. From the jump, Serpico was considered an outcast due to his hippie looks and long beard. “He street-savvy but idealistic Officer Serpico was appalled at the cliquishness and the payoffs — free meals as well as big, blatant bribes — from criminals, gamblers, numbers men and ordinary merchants whom he saw as a beat cop” (Kilgannon, “A Look Back”). Appalled by the dirty tactics his fellow officers were all too comfortable taking; in 1967 Serpico began telling the names, places, and dates of unlawful officer interactions to high-ranking officials at police headquarters and City Hall. When this proved ineffective, he contacted a reported for the New York Times. On April 25, 1970, David Burnham of the New York Times published a front-page expose on the grease that roamed the 81st Precinct. This prompted then-mayor John V. Lindsay to assemble the Knapp Commission, a group which administered countless investigations of police wrongdoing within the city and exposed a slew of bribery and racketeering.
While this occurred, Serpico was still on the force. While out on a drug bust in 1971, Serpico was shot in the face by an assailant while he was shouting for backup from his fellow patrolmen – to which none arrived. When the officers finally reached Serpico’s side, they hesitated before calling an ambulance. On the brink of losing his life, Serpico barely survived: he spent months in a recovery hospital, and today is left with fragments from the bullet that almost killed him lodged his in skull, is deaf in his left ear, and has nerve damage in his left leg. Though his bravery opened doors for investigations within the NYPD, Serpico feels as though despite almost losing his life he still did not do enough. When he testified in front of the Knapp Commission, Serpico was noted as saying, “The atmosphere does not yet exist in which an honest police officer can act without fear of ridicule or reprisal from fellow officers” (Kilgannon, “A Look Back”).
Another example of an individual who risked her life to expose the truth is Karen Silkwood. Silkwood was a chemical technician at the Kerr-McGee Corporation, located in Crescent, Oklahoma. “In the evening of November 5, plutonium-239 was found on Karen Silkwood’s hands. Silkwood had been working in a glove box in the metallography laboratory where she was grinding and polishing plutonium pellets that would be used in fuel rods” (Los Alamos National Laboratory, “The Karen Silkwood Story”). By November 13, Karen Silkwood was dead. Silkwood was a member of the Oil, Chemical, and Atomic Workers’ Union as well as an activist who was critical of Kerr-McGee safety. Upon finding the plutonium on her body, Silkwood had protested to the Atomic Energy Commission about the unsafe conditions at Kerr-McGee. The night Silkwood died, she was driving to a meeting with a union representative as well as a reporter for the New York Times. Alongside her in the car was reportedly “a folder full of documents that proved that Kerr-McGee was acting negligently when it came to worker safety at the plant. However, no such folder was found in the wreckage of her car, lending credence to the theory that someone had forced her off the road to prevent her from telling what she knew” (History Staff, “Karen Silkwood). The death of Karen Silkwood still remains a mystery, however, in 1979 Kerr-McGee closed its Crescent plant for good.
Over the course of American history, a select few brave individuals have made the decision to stand up for what is right. These individuals, known as whistleblowers, were able to either uncover the truth or put a halt to illegal action within the county. Since the Civil War, America has made it a priority to keep the individuals who blow the lids off these scandals safe. Whether one is in a public or private sector, rest assured that the government has learned from its past mistakes, and will protect those who protect the justice in this country.
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