Last week, Franz Gayl was given his life back.
The Marine Corps veteran, who made waves in 2007 when he blamed top military officials for failing to speed the shipment of life-saving vehicles to Iraq, has spent the last few years seeing his vaunted career ripped to shreds. He's been publicly humiliated, reprimanded by his superiors. He had his security clearance yanked and placed on administrative leave for alleged improper use of a flash drive in a secure computer, effectively ending a 35-year career working for the Marines.
So Gayl was at home sitting at his computer last week looking for work as a volunteer firefighter when he got the call that his security clearance had been reinstated, giving him his job back as a science adviser at the Pentagon. "I was flabbergasted, but I am overjoyed that I can now return to my work of supporting the Marine Corps that has been, remains and will always be my life," he emailed The Huffington Post on Friday. He claims that his suspension was in retaliation for his demand that military brass be held accountable for the delay in delivery of mine-resistant, ambush-protected vehicles known as MRAPs.
Gayl's experience is an all too common one. In return for saving lives, highlighting government corruption and saving millions in taxpayer money, government whistleblowers are often punished for their good deeds.
It is likely that Gayl would never have been disciplined if the Whistleblower Protection Enhancement Act had been in place. The bill, which extends current safeguards to government contractors and bolsters prevailing protections for whistleblowers, enjoys bipartisan support spanning liberal Democrats and Tea Party conservatives. But it remains stalled in Congress, due to the opposition of government bureaucrats and some powerful lawmakers.
"These folks haven't had to worry about anyone looking over their shoulder for decades," explains the Government Accountability Project's legal director Tom Devine, adding that members of the intelligence and military bureaucracy have opposed meaningful changes to current whistleblower protections.
Earlier this month, a version of the bill sponsored by Rep. Darrell Issa (R-Calif.) passed unanimously through the House Government Reform and Oversight Committee. But its fate remains unclear in the full House where some lawmakers previously implied -- amid the furor over WikiLeaks -- that it entails disclosure of classified information.
At the end of 2010, the Senate version was killed in the final moments of the legislative session when a mystery senator placed a secret hold on the bill at the behest of the incoming House Republican leadership (the Government Accountability Project and NPR's "On the Media" got every senator but Jeff Sessions (R-Ala.) and Jon Kyl (R-Ariz.) to deny placing the hold).
Gayl's experience is a powerful reminder of the importance of whistleblowers.
When Gayl did a tour of duty in Iraq in 2006, he was shocked to see how many American soldiers were being killed and maimed by improvised roadside bombs. Many of them were driving Humvees, which are particularly vulnerable during such explosions due to their low mass, parts made of flammable aluminum and low ground clearance.
But Gayl was even more devastated to learn that the Corps was "well aware of this vulnerability as early as 1994 when experts reported that the Humvee is a 'death trap' against IEDs," he said over email. Moreover, it had neglected to look for a replacement for years and failed to act on multiple requests by generals and commanders in the field for mine-resistant, ambush-protected vehicles, which were commercially available and known to be nearly impervious to most IED attacks.
"Unfortunately, the civilian bureaucrats in the support establishment had buried the request for 1,169 MRAPs in 2005 leading to a 19 month delay in mass fielding, and a horrendous number of unnecessary deaths and injuries in the vulnerable Humvee, even when the threat and the tangible consequences were known to the responsible bureaucrats," Gayl emailed HuffPost.
The reason for the delay, Gayl said, is that some military bureaucrats wanted to "protect funding already programmed to Humvees and other planned projects."
A 35-year member of the Corps, Gayl grew so frustrated that he went public with his complaints in 2007 to pressure military brass to send MRAPs and to "[make] sure officials were held accountable for what I knew to be corrupted acquisition practices so that such a tragedy would not be permitted to happen in future conflicts."
It wasn't easy for him to do, he explained, citing the Marines' emphasis on loyalty and unit cohesion. "I never imagined becoming a whistleblower. To me and most of the Marines I know the mere word carries with it connotations of being a narc, a snitch, and even a traitor. ... However, my observations in Iraq and futile interaction with the stateside acquisition bureaucracy at all levels led me to do the very thing I would never have envisioned doing beforehand."
His outspokenness eventually helped prompt the Pentagon to expedite the shipment of thousands of MRAPs to Iraq's most dangerous provinces. Soon the death rate for Americans in such explosions plummeted -- Pentagon leaders even praised Gayl for his actions.
And how was Gayl rewarded for his good deed?
Two weeks after Pentagon chief Robert Gates launched a MRAP task force to speed the delivery of the vehicles to Iraq in 2008, Gayl received his first formal letter of reprimand in all his years of military service. And one day in October last year, when he arrived for work at the Pentagon, he was informed that his security clearance had been yanked. He was told to collect his belongings and placed on administrative leave -- basically ending his career. He was told that he was being investigated for using an unauthorized flash drive within a secure facility on several occasions.
Gayl said he supports the passage of the Whistleblower Protection Enhancement Act, saying that both Senate and House version are great improvements on status quo protections. He emphasizes that his success at getting his job back is an anomaly and should not be the exception "that proves a rule, but rather be the rule itself by means of enhanced whistleblower protection having teeth; legislation of the sort that will hopefully be signed into law by the President before the end of the year."
Here is the full transcript of my interview via email with Franz Gayl (my questions are in bold), preceded by a brief introduction written by Gayl.
To begin, I want to express my deepest thanks to all who have steadfastly supported me throughout this ordeal. In particular this pertains to fellow civilians, and the countless active duty, reserve, and retired Marines of all ranks from around the world who have remained in contact with and reached out to me, often risking their own careers in the process. This five year saga in my professional life has deepened my life-long commitment to the Marine Corps that has formed the foundation of my purpose and identity since I first enlisted in 1974. With the recent favorable adjudication by the Department of the Navy regarding my security accesses and the cancellation of my suspension I am energized to return to work hard in support of all Marines in the capacities for which I was hired. Again, the moral support provided to me by so many of my fellow Marines throughout has been a sustaining gift for both me and my family.
Also, as a general comment, DoD civilian whistleblowers today have no due process legal rights for a hearing other than those stated in the existing Whistleblower Protection Act (WPA). While the DoD IG can investigate and make recommendations, it has been a Trojan horse that teams up with the agency to finish off whistleblowers naively seeking its help. However, one major change in the climate is noteworthy. The Office of Special Counsel (OSC) has been transformed under the inspiring leadership of Carolyn Lerner. Since her arrival in the summer of 2011 OSC has truly come to fulfill its intended mission as a Federal guardian of whistleblower rights. For example, OSC's determination to request a stay of - an indefinite salary cutoff that would have starved me out of the Marines - and the Merit Service Protection Board's (MSPB) willingness to support it, was the turning point in my case during the darkest hours this fall, when I thought it would be necessary to sell my home and give up. I don't think it was a coincidence that the Department of the Navy then issued a favorable security adjudication that now permits me to get back to work. Several others like me have received similar support from OSC recently, examples that spell hope for current and future Federal civilian whistleblowers. With strong committed leadership at the helm of OSC, the MSPB, and related organizations an effective line of defense against agency reprisals can be drawn in anticipation of enhanced WPA protections that will, and must be signed by the President this year.
First of all, how did you feel when you found out about the reinstatement?
It was at first hard to believe the news when I got the call from my attorneys at GAP. I was flabbergasted, but I am overjoyed that I can now return to my work of supporting the Marine Corps that has been, remains, and will always be my life. The news of a favorable security determination was completely unexpected, especially after all of the derogatory comments that my supervisors at all levels had officially made on the record over the years regarding my trustworthiness, reliability, and judgment. But then I reflected on the fact that the Department of the Navy made the security determination, not the Marines. I have always had and have great faith in the professionalism and objectivity of the Department of the Navy Central Adjudication Facility (DONCAF). DONCAF has stood above and outside of the Marine Corps' political fray concerning me, looking at all the facts dispassionately and fairly, both favorable and unfavorable. That favorable determination by DONCAF was a simple reaffirmation of the professionalism of that organization. As for the same-day job reinstatement by my supervisors, I respect them greatly for acting immediately to put me back to meaningful work. I intend to redouble my efforts to serve them and the Marine Corps well again, as it was frustrating not to be able to do my job during the past year.
And secondly, where were you when you first heard the news?
I was on-line looking into the possibility of becoming a volunteer firefighter in my small community, in order to make more constructive use of my time in a way that served the community. GAP gave me a call at home.
How did you first realize Humvees provide Marines insufficient protection?
During the period of 2003 to 2004, I as a science and technology (S&T) advisor, had many interactions with the Office of the Secretary of Defense in accelerating capabilities to Joint forces in harm's way. Improvised Explosive Devices (IEDs) quickly rose to prominence as the number one priority of S&T resource commitment in DoD, as the ubiquitous Humvee, or High Mobility Multipurpose Wheeled Vehicle (HMMWV, a.k.a. Humvee) was hopelessly vulnerable to IEDs and there was nothing in in the acquisition pipeline to replace it. Adding armor was the only solution and that proved tragically ineffective as well. IEDs used against Humvees were the single biggest threat to mission success in Iraq at that time.
How vulnerable were the Humvees during IED explosions and other attacks?
Humvees suffer from fundamental design limitations that make them particularly vulnerable to IEDs. These limitations include comparatively low mass, critical parts made of flammable aluminum, a flat and effectively concave bottom that contains and even focuses blast energy into the crew compartment, and a low ground clearance that intersects the blast front when the peak pressure and heat are still near maximum. The Marine Corps was well aware of this vulnerability as early as 1994 when experts reported that the Humvee is a "death trap" against IEDs. For whatever business case reasoning, the Marine Corps decided not to develop a replacement. The shocking aspect of this negligence to act on a known vulnerability in the early 1990s, and the particularly gross negligence of failing to act on a warfighter request in 2005, is the fact that Mine Resistant Ambush Protected (MRAP) vehicles were commercially available. In fact MRAPs were known to be nearly impervious to conventional IED attacks. In fact, occupants are 10 times more likely to survive death or injury in attacks than similar IED attacks directed against Humvees, even up-armored Humvees. Modern versions of commercial models whose production lines opened in the 1970s, such as the "Casspir" were readily available in 2005, in fact the Marines in Iraq noted many commercial products by name. From a Marine logic standpoint the answer was a no-brainer: replace all armored Humvees with MRAPs since Marines continued to die, the mission was jeopardized, and ample funding was available to replace them with MRAPs immediately. However, the support establishment grossly negligent and did not process requests using Marine logic in 2005. More important was to protect funding already programmed to Humvees and other planned projects. I was well aware of the commercial availability of several MRAP variants and their unique survivability when I went to Iraq. "Cougars" and "Buffalos" had been purchased in small numbers for engineers, and I had advocated their use for two other forward-leaning capabilities earlier. All the requests from the field for MRAPs made perfect sense to me. Unfortunately, the civilian bureaucrats in the support establishment had buried the request for 1,169 MRAPs in 2005 leading to a 19 month delay in mass fielding, and a horrendous number of unnecessary deaths and injuries in the vulnerable Humvee, even when the threat and the tangible consequences were known to the responsible bureaucrats.
Were you surprised to learn about the previous 2005 request for MRAPs?
I was deeply angered, but chose to focus all my animation and energy into solving the problem in the interests of providing the Marines better protection. This was a two-pronged approach, first to replace all Marine Corps Humvees in the Iraqi theater with MRAPs, and second making sure officials were held accountable for what I knew to be corrupted acquisition practices so that such a tragedy would not be permitted to happen in future conflicts.
How did you feel when you first were informed about the charge that you divulged classified info?
I found it curious that I would be accused of doing so. I had always been diligent about maintaining the security of classified information, and I was quite confident that whatever investigation was being conducted as a result of the charge against me would eventually find that I had not divulged classified information. As I predicted, at the conclusion of their investigation into Marine allegations that I had published classified information (their second of three investigations - see below), the Naval Criminal Investigative Service (NCIS) determined that I had not divulged any classified information.
How else were your retaliated against at the workplace?
This is an incomplete list, in approximate order of occurrence. Many other instances of insults, public humiliations, workplace harassment, and minor derogatory correspondence not included:
2007:
1) first NCIS investigation was initiated (foreign contacts) - I was eventually cleared;
2) issued formal written counseling from supervisor and acting division director;
3) issuance of rewritten job description minimizing science and technology;
4) issued formal written reprimand from division director;
5) issued formal written proposal for 10 working day unpaid suspension;
6) bottom 30% perf eval rating for 2007, despite Senior Executive Service recommendation
2008:
7) second NCIS investigation was initiated (classified material) - I was eventually cleared;
8) third NCIS investigation initiated (my psychological stability) - I was eventually cleared;
9) bottom three (3) percent performance rating for 2008 - no bonus;
2009:
10) first denied request to obtain job related Naval Postgraduate School (NPS) education;
11) second denied request to obtain job related education at NPS;
12) denied request to serve as a USMC Congressional Fellow;
13) issuance of first performance improvement program (PIP);
14) issuance of second PIP on heels of my completion of the first;
15) bottom three (3) percent performance rating for 2009 - no bonus;
2010:
16) first denied request to obtain job related Singularity University (SU) education;
17) formal issuance of rewritten job description eliminating science and tech;
18) demotion to GS-14 from GS-15 accompanied new job description;
19) second denied request to obtain job related education at SU;
20) received verbal reprimand from Office of DoD IG for my public critique of dazzler audit;
21) formally suspended of all access to classified materials;
22) placement on administrative leave with no duties;
23) first DoD IG supports USMC, finding that NCIS classified investigation was not retaliation;
24) formal written proposal for indefinite unpaid suspension;
2011:
25) third denied request to obtain job related education at SU;
26) denial to attend job related education program at MIT offered to all employees;
27) denial to attend SU at my own cost using leave and plus advance leave;
28) second DoD IG supports USMC, finding suspension not retaliation;
29) formal written proposal for indefinite unpaid suspension;
That brings us basically to today.
Did you ever imagine that you'd become a whistleblower?
I never imagined becoming a whistleblower. To me and most of the Marines I know the mere word carries with it connotations of being a narc, a snitch, and even a traitor. Those concepts are anathema to Marines as they imply indiscipline, disloyalty, and a threat to unit cohesion. We Marines pride ourselves on the good order and discipline within our organizations as success in military conflict depends on it in. However, my observations in Iraq and futile interaction with the stateside acquisition bureaucracy at all levels led me to do the very thing I would never have envisioned doing beforehand.
What is the reputation of whistleblowers in the Corps?
To my knowledge the Marine Corps has no history of high profile whistleblowers. On any given day uniformed Marines assume that no problem is unsolvable within our own ranks; in other words inside the tight-knit, self-sufficient Marine Corps family. There is a mechanism for uniformed Marines to speak with superiors at much higher levels in confidence known as "requesting mast," but that is not available to civilians like me.
Do you support the Whistleblower Protection Act now making its way through Congress?
Yes!!!!!!!!!!!!!!!!!!!!!!! The House and Senate versions differ, but both are orders of magnitude better than status quo protections. Looking just at a few elements of the HR 3289 version, this small sample of improvements alone would have greatly helped my case over the years: 1) Closes judicially-created loopholes in the law's protection, while tightening language to preclude circumvention of the congressional free speech mandate; 2) Provides those covered by the WPA with district court access to challenge major disciplinary actions; 3) Outlaws security clearance harassment as a WPA violation, establishes minimum due process standards for agency clearance actions, and breaks out of the grievance model through appellate review of clearance actions by an inter-agency intelligence community forum required to have both merit system and national security expertise; 4) Modifies the burdens of proof to make it more realistic for the Office of Special Counsel to seek disciplinary accountability against those who retaliate; and 5) Creates a whistleblower ombudsman as a five-year experiment to advise employees of their rights in Offices of Inspectors General (OIG) for Title 5 employees. That is just a sample - there is much more.
Are whistleblowers still vulnerable to retaliation in the Marines and other military services?
Yes. My good fortune is a rare exception that proves the rule. It is noteworthy that very few past and even present whistleblowers in similar circumstances to my own have benefited from my support and good fortunes. The only reason that I have been able to remain employed over the past five years is due to my luck in receiving a timely combination of aggressive congressional support, free expert lawyers, a sustained media spotlight, and a broad-based solidarity support campaign. Yet even with all that exceptional support it took almost five years for me to arrive here, and my position is still far from secure. My professional survival was desperately hanging in the balance throughout that period. My returning to work remains an anomaly, and is not a sign of general improvement in whistleblower rights. Therefore, success stories should not be exceptions that prove a rule, but rather be the rule itself by means of enhanced whistleblower protection having teeth; legislation of the sort that will hopefully be signed into law by the President before the end of the year.