8 February 2024
Written by Tom Devine, WIN Member Government Accountability Project's Legal Director and a Trustee of WIN's Board, this spotlight was originally featured on GAP's website
(Drawn from and expanding on presentations to the November 1-2. 2023 CEELI Institute conference in Prague, Ringing the Bell: Protecting Whistleblowers in Central and Eastern Europe; and the December 6, 2023 Slovakia Whistleblower Protection Office conference in Bratislava, Whistleblowing in Europe from Directive to Action.)
During the last 45 years at Government Accountability Project, I have had the honor to formally or informally help over 8,000 whistleblowers, and have been on the front lines to pass 38 whistleblower laws from the local to international. That has given me time to make a lot of mistakes and learn many lessons on what it takes to turn whistleblowing rights on paper into a reality that makes a difference without incurring martyrdom in the process. Whistleblowing is the highest stakes, most significant expression of free speech. So, I’d like to share a dozen priority lessons learned that are summarized below.
- Nothing is more powerful than the truth.
Individuals have used freedom of speech to challenge abuses of power and change the course of history since the birth of organized society. This impact has increased dramatically, however, with the whistleblower rights movement, as created the opportunity to share the truth with legal rights against retaliation. Consider these examples of the truth leading to change, mostly from our clients,
- increasing U.S. government recoveries against fraud in government contracts from an average of $10 million annually to almost two billion, mainly due to whistleblower lawsuits under the False Claims Act;
- forcing the resignation of all European Commission members due to systematic procurement bribery;
- ending the practice of blanket domestic surveillance of private citizens by nations ranging from the United States to North Macedonia;
- preventing the respected U.S. Agency for Global Media, home of Radio Free Europe, Radio Free Asia and other networks, from purging legitimate reporters and turning it into a propaganda agency.
- ending the practice of accusing foreign visitors of drug smuggling without evidence and detaining them incommunicado for four days while being subject to hospital tests; shrinking the detention time frame time to two hours.
- ending the practice of mass, involuntary hysterectomies on detained, hospitalized immigrant women;
- removing dangerous drugs from the market such as Vioxx, which caused over 40,000 fatal heart attacks in the United States, almost as many as Americans who died in the Vietnam War but from prescription drug the government had officially decreed as safe;
- exposing false testing that ranges from life-threatening design defects throughout manufacturing to medical diagnoses;
- five times blocking the U.S. Department of Agriculture from replacing government inspection of government-approved food with corporate honor systems;
- sparking a national milk testing program after exposing that 80% of commercial milk was contaminated with illegal animal drugs;
- ending the political censorship of scientific research on climate change, so that societies can begin seriously addressing the planet’s greatest challenge;
- stopping nuclear power safety violations that could have caused disastrous accidents (see the Netflix documentary Meltdown);
- forcing the removal of incinerators in poor neighborhood that officially were only disposing of safe materials, but actually were burning dioxin, heavy metals, lead, arsenic and other poisons;
- preventing a more ambitious 2006 Al Queda rerun of 9/11 that would have targeted capitals globally; and
- reducing American casualties in Iraq and Afghanistan by land mines from 60% to 10%, by freeing up delivery of effective land-resistant vehicles delayed 1.5 years due to corruption.
This list could continue extensively from United States examples and be mirrored throughout the world. The point should be clear, however. Whistleblowers now are making a difference more than ever before.
- Whistleblowing is a life’s crossroads decision.
The decision whether to blow the whistle means resolving deeply embedded, valid but conflicting values for a decision that at least means risking one’s professional life. Consistently whistleblowers have told me they had to take a stand to be true to themselves and to live with themselves. Whatever the outcome, for better or worse, their lives will never be the same.
- Whistleblowers have the right to make a fully informed decision.
Because of the risks, my first duty with would-be whistleblowers is to try and talk them out of it. I explain that it’s not to avoid helping them, but so they can make a fully informed decision about what they’re getting into. They must know the type of retaliation they risk with different options. They need to weigh the impact on family or defendants to resolve conflicting values. Then they can choose how much retaliation to risk for how much impact. If they don’t want to be passive, they can decide whether to make any anonymous hotline disclosure, or choose the range of options up to going public.
- Whistleblowers must finish what they start.
It is not just about whistleblowers’ right to know. They must make a firm commitment to finish what they start. If they quit in the middle, it would have been better to remain silent. The abuses of power will be stronger for having survived their challenge. Further, the organization they expose will try to make an example by destroying them for trying to challenge their authority. Admiral Rickover, the founder of America’s nuclear navy, observed that if you have to choose between sinning against God or the bureaucracy, choose God. Neither will ever forget, but God may forgive you.
- Emotional support is as significant as legal rights.
Stress due to uncertainty and consequences from a life’s crossroads are intense and inevitable. The internal pressure can be as severe as the eternal threats from an employer or its lawyers. I have had clients who withdrew their cases or fired me despite us winning every legal battle. They simply cracked under the pressure after I had failed to give them necessary emotional support. Those who help whistleblowers should be aware hasty they are in a professionally intimate relationship, and not just like impersonal surgeons for legal operations. We should guide them to necessary counseling or therapy so they can make it through an inherently traumatic life cycle. As a result, whistleblower laws should include professional emotional support as a temporary and permanent remedy. In the United States Whistleblowers of America’s exclusively mission is helping whistleblowers cope with emotional stress and pain from retaliation.
- Cynicism has a greater chilling effect than retaliation.
Almost every study has confirmed that fear of retaliation is only the number two reason why would-be whistleblowers remain silent observers. Consistently, the most severe chilling effect is their belief that it wouldn’t make a difference. That makes sense, as most citizens are brave enough to risk their lives for their country. However, in the absence of neurosis there must be a point to risk professional death. As a result, rights must fully enfranchise the whistleblower to participate in the work following up for timely resolution of their initial disclosures. They will have confidence in the process if they receive status reports, have an opportunity to rebut denials, have access to the investigative file, and have an opportunity to comment on the report or resolution before the results are made public along with the whistleblower’s comments.
- Solidarity is the magic word for whistleblowers to maximize results and minimize retaliation. Turning rights into reality requires a cultural, not just legal, revolution.
Isolation is the fatal word. If all a whistleblower has is strong evidence and solid legal rights, I advise them they’re in big trouble. It takes solidarity from the family to survive emotionally. Solidarity from peers to have supporting witnesses and obtain evidence. Solidarity from enforcement agencies so concerns are taken seriously and acted on by those with authority. Solidarity from the public so that there is a political base to challenge the abuse of power. That is why at Government Accountability Project we don’t limit ourselves to legal cases. They are legal campaigns for the truth. We play information matchmaker so that all the stakeholders in society know how they have been betrayed by the abuse. When that happens, the balance of power shifts. Instead of a corrupt organization surrounding the isolated whistleblower, society is surrounding the corrupt organization. In my experience, if we win the legal campaign it is inevitable to win the case. While this is primarily a lesson for advocates, whistleblower laws must be transparent about their results in defeating abuses of power, so the public knows how these rights benefit their own lives.
- There’s been a legal revolution for whistleblower rights but beware of false advertising.
Whistleblower laws are like free speech shields. If you go into battle with a metal shield, it is dangerous but you have a fighting chance to live. If you fight with a cardboard shield, no matter how impressive it appears you’re going to die. The U.S. passed the first national whistleblower law in 1978, and now over 50 countries have enacted them at least for government workers. Over 100 for specific sectors in societies, such as health care. Government Accountability Project and the International Bar Association compared whistleblower laws enacted through 2018 with global standards for best practices, both for rights on paper and in reality. Some are cardboard shields that only provide so-called rights for blowing the whistle to the same offices guilty of wrongdoing, or with rules so rigged to rubber stamp virtually any retaliation a whistleblower challenges. The minimum cornerstones for credible protection are – 1) rights for all legal or natural persons to make disclosures supported by a reasonable belief of illegality and other abuses of power to all affected by it; 2) fair rules of the game for what it takes to legally prove retaliation; 3) credible options for defense, from informal investigations to due process for a genuine day in court; and 4) remedies for those who prevail that neutralize all the direct and indirect effects of retaliation, including accountability through liability for those who engaged in it.
A foundation principle is that the rights cover all communications of protected information, without regard to formality, context or audience. For example, there cannot be loopholes if the whistleblower communicates evidence of misconduct in a meeting or as part of job duties like investigators or auditors, rather than through a formal allegation. Those communications are the lifeblood for organizational checks and balances and are the overwhelming contexts where protected information is shared. If rights are limited to official reports in formal procedures, whistleblower laws will only protect the tip and ignore the iceberg for communications where accurate information is needed most.
- No one gets it right the first time, so passing a law is just the first step in an endless process to turn into reality.
Passing a whistleblower law is the first step in a marathon journey. Abuses of power are almost an instinct, and those who rely on retaliation are not going to give up because a law is passed. There will be unforeseen problems, and mistakes will be made despite the best intentions. The tactics to harass are limited only by the imagination, and bullies will search for and find ways to circumvent rights. There will be a relentless, never-ending counterattack to gut the law through legal challenges and hostile interpretations. In the U.S., we are on our fourth generation of the Whistleblower Protection Act and fighting hard for a fifth.
- Channels are the most significant development to strengthen rights or turn whistleblower laws into traps.
The European Union Whistleblower Directive drew on precedents from nations like Serbia to institutionalize a new paradigm for rights – mandatory establishment of whistleblower channels in all significant public or private organizations. This is an extremely high stakes, high risk development for whistleblowers. Channels can be a breakthrough that institutionalizes awareness of and respect for whistleblower rights into all organizations. They also can be a trap through which bad faith organizations learn in advance of potential threats and take preemptive strikes to kill the messenger before the truth gets out. In addition to conflicts of interest, channels can be very dangerous for those who staff them and face retaliation for properly performing their duties to support whistleblowers.
The keys for legitimate channels are — 1) organizational independence; 2) ban of institutional or personal conflicts of interest; 3) reporting directly to the organizational chief; 4) staffing by full-time personnel trained in whistleblower rights and relevant national laws; 4) adequate resources and access to information; and 5) protection from retaliation. They should have status as and protection facilitators, so that all their job duties working with whistleblowers are protected activity that is shielded against retaliation.
- Whistleblowers need skilled navigators to effectively exercise and enforce their rights.
Whistleblowers undertake a journey through a treacherous terrain that is packed with land mines. It is not fair that they will know and understand all the rules, procedures and standards. Laws designed to guide them to a safe destination are confusing. So they need trustworthy counsel to navigate them through the territory. Whistleblower laws must include resources for education, training and counseling on how to act on their rights, as well as access to legal aid and attorney fees for those who prove violations. Otherwise, whistleblowers will be unable to understand or afford their rights.
- Whistleblowers need an advance escape plan before they risk retaliation, because you can’t go home again.
Whistleblowers who win legal victories can receive vindication and financial relief. However, while there are exceptions as a rule it is not realistic to go back to work for a boss or organization you just defeated in a lawsuit. Further, the International Bar Association/Government Accountability Project study found that only 20% of whistleblowers globally win decisions on the merits when challenging violations. As a result, those helping would-be whistleblowers should advise them to have a plan in place for a fresh start before they risk exposing themselves to ugly attacks on their competence and credibility. One approach is to line up a new job and resign, and then first get a new employer’s consent to expose the misconduct before acting. While anonymous whistleblowers may not need this extreme option, they should have a backup plan in place in case they are exposed.
Whistleblowers with different names are timeless, as is retaliation. However, the legal revolution for their rights can be a global paradigm shift both for freedom and accountability. That can only happen if we learn and act on the lessons inevitable from mistakes, growing pains and counterattacks connected with pioneer laws institutionalizing these rights.