Saturday, November 12, 2011

Damned If You . . . WHAT? Deep Doo Doo (or Don’t Don’t) Questions For Whistleblowers: Does All It Hinge On Private vs Public Sector Employment?

(Picture of fired Penn State football coach Joe Paterno above from Wikipedia.)

From the world of football to the world of politics, that's where we are going, but we are not going to be talking sports metaphors applied to politics. . . The topic by which we will make our segue is very real world: the duties of of whistleblowers . . . . How they may be punished for what they do or, as the case may be, don't do.

A lot of eyes are going to be on the Penn State football game that is being played today.

In the Penn: Trouble For What You Don't Do

The Penn State sexual abuse of young minors scandal presents an interesting question now that it has resulted in the firing of the university’s football coach Joe Paterno and university president Graham Spanier. Without getting unduly specific about the unattractive details of the allegations with respect to Jerry Sandusky it is interesting to note that some think that the fired Paterno did nothing wrong.

That’s what's said in this high Google-ranking letter to the editor taking issue with a Star Ledger editorial:
In your editorial “Paterno must go” (Nov. 8), you say he should have called the police. Why? . . .

Yes, it was his duty to pass on what he had learned, but not his job to call the cops. . . .

Paterno did the right thing by notifying superiors. To do otherwise would be overstepping his authority.
(See: Joe Paterno fired? He did no wrong, Friday, November 11, 2011, Letters to the Editor/The Star-Ledger.)

The original editorial the letter was responding to was of exactly the opposite opinion as to whether simply reporting illegal conduct internally to superiors was sufficient rather than reporting it externally to those who will actually do something about it:
Paterno acknowledges being told about one of the alleged assaults, but instead of calling police and turning in his friend in 2002, Paterno allowed athletic director Tim Curley to handle the matter. Curley is one of two school officials charged with covering it up. Both have stepped down.

* * * *

Paterno insists, “I did what I was supposed to do,” by handing off to Curley, but Paterno did only the minimum the law required. Telling Curley doesn’t absolve Paterno from a moral obligation. He should’ve taken action himself.
(See: Joe Paterno must step down after Penn State child sex abuse revelations, Tuesday, November 08, 2011, Updated: Wednesday, November 09, 2011, By Star-Ledger Editorial Board The Star-Ledger.)

That was before Paterno's firing. The New York Times, after the firing, similarly editorialized that firing Paterno since he “failed to call the police” was justified “because he did not take steps that probably would have ended” very wrong acts. (See, Editorial: Penn State’s Response, November 10, 2011.)

Nonetheless, feelings sympathetic to Paterno and the course of action he took are running strong. There was also something verging on a riot (far surpassing the anything Manhattan’s Occupy Wall Street protesters have done) as thousands of students took to street to express displeasure over Paterno’s firing. Apparently, the students were also of a mind that Paterno did no wrong by not doing more. (See: Penn State Students Clash With Police in Unrest After Announcement, by Nate Schweber, November 10, 2011.)

The New York Times ran a whole article, a long one, focusing on exactly what Parterno did and didn't do:
Paterno, according to the prosecutors, did not call the police. Instead, the next day, he had the university’s athletic director visit him at his home, a modest ranch house just off campus in State College. According to prosecutors, Paterno told the athletic director of the report regarding the former coach, Jerry Sandusky.

* * * *

[Quoting Paterno’s son, Scott] “The appropriate people were contacted by Joe. That was the chain of command. It was a retired employee and it falls under the university’s auspices, not the football auspices.”

It appears prosecutors believe that Paterno, whatever his personal sense of obligation to inquire or act further, met his legal requirement in reporting the graduate student’s allegation to his direct superior, Curley.

Under state law, if a staff member at a school makes a report of possible sexual abuse of a child, it is the responsibility of “the person in charge of the school or institution” to make a report to the state’s Department of Public Welfare.
But the people up the chain of command, including Spanier, didn’t make that required “report to child welfare authorities.” (See: In Sexual Abuse Case, a Focus on How Paterno Reacted, Doug Mills/The New York Times, by Mark Viera, November 6, 2011.)

The Central Whistleblowing Issue: What Follow-up Can You Expect When Reporting Misconduct?

The Times article says that a dean emeritus of the school, Nicholas P. Cafardi, who it describes as a “professor of law at Duquesne University School of Law and an expert on the Roman Catholic Church’s sexual abuse scandal” said that Paterno “had reason to expect that others would do their jobs.”

Really? Paterno “had reason to expect that others would do their jobs”? How can someone be an “expert on the Roman Catholic Church’s sexual abuse scandal” and think that when whistleblowers report misconduct of this sort within an organization that those in charge of an organization can, without question, be expected to do their jobs?

This goes to the crux of the most central issue when it comes to Whistleblowing: When you only report things internally within an organization where improper conduct is occurring can you truly expect that others will do their jobs or should it be your personal duty to report it externally? Parterno was fired because, in retrospect, it was considered clear that he should have reported the incident, at least eventually, externally to those would take effective action. This is the standard the university and the the editorializing newspapers are applying even though, as the story is being told, Paterno did not personally investigate to ascertain the truth of the allegation.

Now (and here is our promised segue), compare the dismissal of Paterno and university president Spanier* for what they didn’t do with the punishment of whistleblowers working in the government for what they did do.

(* As well as the additional Penn State employees who are losing their jobs.)

Two Roads Diverge In a Wood

Granted, it may be that whistleblowers are invariably faced by a dilemma: damned if they do and damned if they don’t. Even if it is not an absolute Morton’s Fork decision, it is easy to understand that the position in which whistleblowers find themselves is almost always going to be uncomfortable, but is there a distinction when it comes to private sector whistleblowers versus whistleblowers working for the government. Maybe the former are more likely to be damned if they don’t while the latter will be damned if they do. Do you think?

I began mulling this over because at the same time I was listening to stories about the Paterno and Spanier dismissals I was recalling what was said on a recent Leonard Lopate broadcast discussing the fate of whistleblowers in the government sector. Lopate was talking with constitutional and civil rights litigation lawyer Glenn Greenwald and the observation was that, when it comes to government, unlike what happened to Mr. Paterno, whistleblowers are most likely to be damned for what they DO rather than for what they DON"T DO, if and when they take effective action to report misconduct.

The Path That Government Wants Not Taken: Whistleblowing

At about 6:45 minutes into the program Greenwald and Lopate were discussing the Bush administration’s warrantless spying on Americans that was a clear violation of the FISA law enacted by Congress:
GREENWALD: Interestingly, nobody has ever been indicted. The only person who paid any price is this individual Thomas Tamm who was the mid-level Justice Department lawyer who found out that this law was being broken, picked up the phone and called Eric Lichtblau of the New York Times. He lost his job over it. He had no money to hire a lawyer. He went bankrupt and had all kinds of problems. Only the one who exposed the crimes suffered. The criminals themselves suffered none.

LOPATE: Is that often the case?: The whistelblower is the one who winds up paying the biggest price?

GREENWALD: Sure. And then if you look at what the Obama administration is doing now with how it is arguing that the Bush torture regime should not be held accountable under the law, that the warrantless eavesdropping program shouldn’t be, that even the private sector crimes that precipitated the 2008 financial crisis shouldn’t be. The argument they make is that it is more important to look forwards, not backwards. But again, if that were applied across the board, even to the margin lines, then you could have a debate about it but it wouldn’t offend the rule of law principles,* but the Obama administration is on an unprecedented war against whistleblowers, to punish the people who expose government criminality but not the criminals themselves . . . . .
(* We will get to Greenwald’s “rule of law” concern in a moment. Essentially it relates to his thesis that there are different legal standards now being applied to the elite 1%, as opposed to the other 99% of the country.)

At this point there was a brief discussion of the situation of Sergeant Bradley Manning, a distinguishable situation because, whatever higher moral imperatives people think may apply, Manning probably violated the law when he leaked classified information to Wikileaks. But Manning’s initial extraordinarily harsh and unusual Obama administration-imposed detention conditions were brought up with Greenwald commenting that the Obama administration was:
. . . sending a signal to say, `if you also learn of things that we have done in secret that are high-level law breaking, you should think twice about whether you will expose it because look at what we have done to Bradley Manning.
The Greenwald/Lopate discussion proceeded to focus specifically on concern analogous to what happened with Paterno:
LOPATE: But whistleblowers have all sorts of protections under the law. How come they don’t always apply? I don’t mean Bradley Manning (he may very well have criminally leaked things), but the whistleblower who revealed unwarranted wiretaps, I would think that he would have been protected.

GREENWALD: But he wasn’t, and that was Thomas Tamm who was criminally investigated. And the reason is that they have protections IF they invoke an internal procedure within the government, so they go to their boss, or they go to an investigative agency within that department, but that goes nowhere; those are always whitewashes. So leaking to the media which is the traditional way in which we learn about important aspects of criminality, that does not have any whistleblower protection.
At the very end of the broadcast segment (at about 29:300 Lopate and Greenwald had one more exchange of crucial relevance:
LOPATE: Now, Haven’t things like Wikileaks enabled citizens to know more about wrong doing? It looks now like Wikileaks might finally be destroyed.

GREENWALD: Well, those two thoughts go together perfectly: I mean, when somebody steps up and actually exposes what the government is doing then they become an enemy of the state.
A Distinction Explained By A Government/Private Sector Dichotomy?

So, do you think? Do you think there is a distinction when it comes to private sector whistleblowers versus whistleblowers working for the government as to judgements whether they will get in trouble for reporting misconduct externally or not reporting it externally to those who will take effective action?*

(* It is acknowledged that Paterno was expected to report organizational misconduct to the police, which is to law enforcement, while Tamm reported organizational misconduct to the New York Times, which is only a media organization; but in purely practical terms because of government structure there was no effective course of action for Tamm to take in reporting the misconducts except to go to the press.)

At one point in the Greenwald/Lopate discussion Greenwald explained that “crimes committed in [government] office” are not viewed as “real crimes.” If that’s true, and it probably is, it would sufficiently support the distinction we are making with respect to government vs. private sector whistleblowers and we might leave it at that . . .

Maybe Not

. . . But that would be unfair to Mr. Greenwald because he has some broader observations that account for what is happening and as I have said before they are scary, even scarier than what we have just discussed.

This is Mr. Greenwald’s “rule of law” point. Mr. Greenwald theorizes that we have been on a downward slope since the pardon of Richard Nixon and that there is now an elite club, essentially the 1% Club, that expects to behave with impunity while for the rest of us other standards apply. He suggests that “leniency,” the non-application of the “rule of law,” is something we see “only among the powerful.” As for the rest of us? Greenwald offers startling statistics: The United States has 5% of the world population and yet 25% of the prison population worldwide is in US.

Glenn Greenwald is the author of “With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful.”

Here is a link and WNYC summary of the Leonard Lopate segment and you may click below to listen to it:
Glenn Greenwald on Our Justice System
Monday, November 07, 2011

Glenn Greenwald argues that, over the past four decades, the principle of equality before the law has been replaced with a two-tiered system of justice—the country's political and financial class is virtually immune from prosecution, while the politically powerless are imprisoned with greater ease and in greater numbers than in any other country in the world. With Liberty and Justice for Some reveals the mechanisms that have come to shield the elite from accountability. He shows how the media, both political parties, and the courts have abetted a process that has produced torture, war crimes, domestic spying, and financial fraud.

Another Explanation: Government By and For the Elite

Does this bigger picture of Greenwald’s throw into a cocked hat our observation about different treatment specifically intended to discourage whistleblowers in government? No, because Greenwald has another observation: The 1% Club has essentially become the government. Greenwald referred in his discussion with Lopate to an Atlantic Magazine article “The Quiet Coup” by Simon Johnson (May 2009), which made the case that a financial oligarchy has taken control of the government. Greenwald also points out that the press is no longer the bulwark against the absence of the rule of law it might once have been considered to be. That is because the media class, now consisting of highly paid employees of large media corporations who are no longer outsiders and instead identify with the elite, now defend this exclusive leniency for the 1%.

There you go: How’s that for kicking the football all the way into the realm of politics?

Post Script Thoughts:
• It is worth noting a couple of things about the warrantless wiretapping that violated the FISA law:
• As pointed out infrequently (if ever) except as was noted by Columbia Law Professor Tim Wu in his book “The Master Switch: The Rise and Fall of Information Empires,” the phone companies were assisting the Bush administration to violate the law at the same time they had pending before the Bush administration approvals they wanted for the reunification of much of the original phone company monopoly.

• The failure to prosecute administration and phone company officials for breaking the law was also due to the passage of the telecom immunity act which unprecedentedly gave retroactive immunity for past criminal acts.
• For those National Notice readers who have difficulty thinking objectively and unemotionally when it comes to topics like Wikileaks and Bradley Manning that circumnavigate the issue of national security it is worth remembering that the issues of concern discussed here relate to all government conduct. Listening to the Lopate/Greenwald segment you will hear the discussion taken out into broader territory.

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