BY ALEX ROSLIN
THE MONTREAL GAZETTE
Saturday, August 28, 2010
Dr. Shiv
Chopra still remembers the words his friend spoke a few days before he died.
"Every time I come here, I vomit," Dr. Chris Basudde, a fellow Health
Canada doctor, had said. "I feel sick. I can't take this."
Chopra
told his friend to see a doctor and take some time off work. Days later, he was
stunned to learn that Basudde had died of a suspected heart attack.
Chopra
said he, Basudde and two other Health Canada doctors were living under enormous
stress and had seen their careers and lives turned upside down after they had
protested against plans to approve bovine growth hormone -which was eventually
banned from dairy production in 1999 -and other drugs they considered to be
unsafe.
The four
doctors were subjected to harassment and isolated from each other in different
buildings, Chopra said. He got shingles that he attributes to the stress and
went on sick leave. Health Canada fired Chopra and the two other surviving
doctors in 2004, citing insubordination.
They have
been fighting ever since to overturn their firings before a labour tribunal.
Chopra's
story shows the intense personal and professional stress whistleblowers
frequently face when they expose wrongdoing. Critics say it also shows how the
Harper government, which was first elected promising openness and transparency,
has failed to protect whistleblowers and, instead, has become obsessed with
stamping out criticism.
So what
is a lone whistle-blower to do in times of ever-greater government secrecy?
Why, harness the magic of the Internet, of course.
As
official channels of complaint fail, some whistleblowers in other countries are
exposing wrongdoing by turning to websites like WikiLeaks,
which has published leaked U.S. military footage of a massacre of Iraqi
civilians and thousands of pages of classified U.S. military reports.
And
whistle-blower advocates warn that Canadian government and corporate secrets
may also start turning up on such websites if Canada doesn't do more to protect
whistle-blowers.
We've
come a long way since 1969 when Pentagon Papers leaker Daniel Ellsberg
painstakingly photocopied 7,000 pages of a classified U.S. military study on
the Vietnam War and smuggled them out in his briefcase -only to spend more than
a year trying to find a way to make the damning information public.
Nowadays,
the Pentagon Papers could have gone viral minutes after Ellsberg hit
"send."
***
When
Prime Minister Stephen Harper created an independent Public Sector Integrity
Commissioner to protect whistleblowers in 2007, Chopra was cautiously
optimistic. Here finally was someone who might investigate the doctors' claim
that Health Canada managers had pressured them to approve questionable drugs.
Three
years later, however, integrity commissioner Christiane Ouimet's office is
getting a failing grade from whistleblowers.
"None
feel they have actually had satisfaction from the system. They're told to go
away and that their case won't be dealt with," said David Hutton, the
executive director of the Federal Accountability Initiative for
Reform, an Ottawa-based advocacy group that says it is in contact with
about 90 Canadian whistle-blowers.
Hutton is
calling on Harper to overhaul Canada's "fatally flawed"
whistle-blower protection system and to replace Ouimet, a career federal civil
servant, with someone more independently minded, noting that she has dismissed
almost every complaint she's got.
Hutton
said his group has heard from 15 federal government whistle-blowers who have
dealt with the integrity commissioner's office. "What we hear from
whistle-blowers is that her office is like a black hole. They feed all this
information, and they never hear back," he said.
It's part
of a broader dysfunction in Canadian governments of stamping out internal
criticism and jealously guarding government secrets -a culture that has only
accelerated under Harper, Hutton said.
Harper is
under fire over silencing a long list of high-profile critics. They include
veterans ombudsman Pat Strogan and crime-victims ombudsman Steve Sullivan
(whose terms weren't renewed after they criticized the government), Canadian
Nuclear Safety Commission president Linda Keen (who was fired after she shut
down the Chalk River reactor due to safety concerns) and Statistics Canada boss
Munir Sheikh (who resigned recently after clashing with the government over
changes to the census).
The
integrity commissioner's office acknowledges it's launched few investigations.
Out of 156 complaints about wrongdoing or reprisals from potential
whistle-blowers reviewed in its first two years of operations, her office
decided only five of the cases warranted an investigation.
Ouimet
didn't find any wrongdoing or reprisal in a single case, according to her
office's first
two annual reports.
Brian
Radford, senior counsel in Ouimet's office, defended the commissioner's record.
"I don't think we are surprised by the numbers ... when you look at the
complexity of the act and its precise jurisdiction."
But
Hutton is flabbergasted at the lack of results. "It's hard to believe
there has been no wrongdoing whatsoever, and that no one's suffered any
reprisals for reporting it, when her jurisdiction is 400,000 federal employees."
Three
whistle-blowers told The Gazette they were disillusioned by how the integrity
commissioner's office handled their complaints of misconduct and punishment for
speaking out.
One
manager said he experienced severe reprisals after reporting fraud involving
several million dollars in his department. Speaking on condition of anonymity
because an internal departmental investigation is still ongoing, he said he was
demoted, harassed, relocated to an isolated area and told not to speak to his
own supervisor.
He said
extreme stress from the situation led to heart palpitations and memory loss,
forcing him to take an unpaid leave of absence.
When he
informed the integrity commissioner's office, he said, he was told it sounded
"like a textbook case" of reprisal, but that his case wouldn't be
accepted because he had already filed an ongoing union grievance.
"There
was a brick wall dealing with her office. They refused to communicate. I have
no confidence that she is there to do anything for me. Accountability just
doesn't exist," he said.
A
now-retired regional director in another federal department said he, too, is
disillusioned with the integrity commissioner. Speaking anonymously because his
wife still works for the government, he said he faced reprisals after he
reported to superiors that department officials weren't following ministerial
policies.
He said
he filed complaints about the wrongdoing and reprisals to the integrity
commissioner. After several months without results and suffering from
depression, he said, he withdrew his complaints and took early retirement.
"They
were not helpful in anything," he said of the commissioner's office.
***
Chopra
said he has also gotten nowhere fast with the integrity commissioner.
At his
five-acre spread in Manotick, 30 kilo-metres south of Ottawa, Chopra, 76, bides
his time tending to a large organic garden with his five grandchildren and
speaking out about food safety.
He
chronicled his battle with Health Canada in a 2008 book titled Corrupt
to the Core: Memoirs of a Health Canada Whistle-blower.
In it,
Chopra tells a cautionary tale of how a whistle-blower can get bogged down in
years of grinding legal and bureaucratic wrangling.
Chopra
and his colleagues first filed complaints in 2002 about the wrongdoing and
reprisals they say they witnessed at Health Canada. The complaints went to the
Public Service Integrity Officer, a predecessor to the current integrity
commissioner who was widely seen as too cozy with the government because he
worked at the Treasury Board.
The
integrity officer agreed that one of the doctors had experienced a reprisal but
rejected their complaints about wrongdoing. The doctors appealed to the Federal
Court of Canada.
In 2005, the court
sided with the doctors,
saying the integrity officer's bureau had erred in law and "failed to
conduct the investigation in accordance with its mandate."
The court
ordered the integrity officer to reexamine the complaints. The new integrity
commissioner took over the case in 2007.
Her
office dismissed the reprisal complaint last year, Chopra said.
The
integrity commissioner's Radford said he can't comment on specific cases,
citing confidentiality concerns. But his office's annual report last year
mentions a reprisal complaint known simply as "Case
4" that was rejected and involves the same details as that of Chopra
and his colleagues.
"It
was not in the public interest for the tribunal to hear this reprisal
complaint," the report said. "There was a need for finality in this
matter."
"That's
complete nonsense," Chopra says of the decision. "We're talking about
pressure to pass questionable drugs. How can that not be in the public
interest? Our lawyers sent them tons of stuff that was in the public interest."
The
integrity commissioner is dealing separately with the doctors' complaint of
wrongdoing at Health Canada. Its decision could come in its third annual report
due after Parliament resumes sitting in September.
Radford
refused to reveal the commissioner's decision, but he hinted that his office
feels Case 4 is really about a public-policy issue rather than misconduct.
"We felt the subject matter of the disclosure really concerns an issue of
public policy. Our office cannot substitute itself for a political
decision-maker."
Chopra is
reserving comment until he sees the commissioner's report, but he was unhappy
about Radford's take. "If they say it's public policy, that's just kicking
the ball back and forth. Our complaint is we were being pressured not to apply
the law. Someone's going to have to be responsible to the public."
Even
starting an investigation at the commissioner's office seems at times to be a
major ordeal. Its annual report last year gives one especially
telling example.
Three
different complaints surfaced at the same time "alleging gross
mismanagement in the form of widespread and recurring contracting
irregularities. Given the responsibilities of the organization, the allegations
raised serious concerns about potential danger to public health and safety."
The
allegations were further "supplemented by corroborating information from
other sources, and it strongly suggested the possibility of wrongdoing."
At some
point, however, the three complainants got cold feet and didn't want to help
the commissioner's office any further. The commissioner, despite having all the
powers to subpoena witnesses of a full royal commission of inquiry, decided not
to investigate.
"It
did not cross the threshold of evidence in law to require a formal
investigation," Radford said of the case.
"The
disclosers never disclosed to us precise facts. Based on that, we did not see
anything irregular that would justify further investigation. ... We didn't
identify any deficiencies."
Radford
said his office prepared a list of best practices it submitted to the
organization, but it didn't bother to follow up to see if anything changed.
"I don't think they adopted our best practices," he said.
"We
did not request that they follow up with us. We do not know if they amended
their policies."
***
Other
countries have taken far bolder steps to protect whistle-blowers and ferret out
wrongdoing.
Sweden
has some of the best legal protection for those who leak stories to the media.
Its constitution says authorities can't investigate a journalist's sources,
except in exceptional cases of national security. A confidential source can
even seek criminal charges against a journalist who reveals his or her identity
without consent.
Britain
has a whistle-blower-protection
law covering virtually the
entire workforce (not just federal civil servants, like Canada's law).
Whistle-blowers there filed 1,761 complaints last year. Of those that went to a
public hearing, the whistle-blower won 22 per cent of the time.
Hutton
said that's far better than in Canada, where the rate is zero per cent.
The U.S.
is in some ways seen as a mecca for whistle-blowers because of a culture of
celebrating the little guy who stands up to wrongdoing. Some whistle-blowers
have got Hollywood treatment, like New York cop Frank Serpico, who exposed
police corruption, and Erin Brockovich, who exposed industrial pollution.
The U.S.
pioneered some of the world's first whistle-blower-protection laws in the 1970s
and 1980s, but one of its strongest tools dates back to the Civil War. Under
the False Claims Act, created after the Union Army was sold faulty rifles and
ailing donkeys, a whistle-blower can sue a federal contractor believed to be
defrauding the U.S. government and pocket part of any court-awarded payout.
Such
cases have become a major tool for fighting fraud in the pharmaceutical
industry. False Claims Act suits led to $6.3 billion (U. S.) in settlement
payments to the U.S. government related to fraudulent marketing of drugs between
2001 and 2009, according to a New England Journal of
Medicine study in May.
Whistle-blowers
received an average $3 million in each case.
"The
U.S. is so different from us in terms of the openness in government. There is
all kinds of stuff our government hides from us that you'll actually find on
websites in the U.S.," Hutton said.
But even
the U.S. is far from perfect. Most whistle-blowers say that even the money from
the False Claims cases was not worth the personal cost of coming forward,
including divorce, ruined careers and stress-related health problems, the New
England journal study found.
In July,
Congress boosted the protection of corporate whistle-blowers as part of its
Wall Street Reform Law.
But the
measures don't protect government employees, and critics say the Obama
administration has actually retreated on helping them.
The Obama
justice department has vowed to aggressively pursue unauthorized leaks, and
according to a Newsweek report, even boasts of being more zealous than it was
under George W. Bush. It prosecuted three leaks in its first 17 months in
office. Previously, such prosecutions were rare.
Back in
Ottawa, Hutton said the clampdowns and failed protections are not in the
public's interest. "Most whistle-blowers get into this situation because
they're simply trying to do their job honestly."
Chopra,
for his part, said he wouldn't hesitate to do it all over again despite the
hardships. "It was my duty to do so under Canadian law. One cannot think
of hardships when it is part of one's duty."
His
advice to other whistle-blowers: "Never do it for glory. Once you do it,
you will be riding a tiger. It will be him or you."
***
Wikileaks:
Hitting "send" to expose a dirty secret
Faced with
mounting secrecy and the failure of official channels of complaint,
whistle-blowers seem to be turning increasingly to the Internet and websites
pledged to expose government and corporate secrets, in the public interest.
For
whistle-blowers, the sites allow them to expose secrets as fast as they can hit
"send." Critics argue the sites may endanger lives by posting
national security information.
The best
known is WikiLeaks, a nonprofit site run by Julian
Assange, an Australian-born former teen hacker.
WikiLeaks
shot to prominence in April when it posted classified military footage of a
U.S. Apache gunship killing 12 Iraqi civilians, including two Reuters
journalists, and wounding two children.
In Ottawa,
whistle-blower advocate David Hutton is watching WikiLeaks with growing
fascination.
Hutton,
the executive director of the Federal Accountability Initiative for Reform,
said sites like WikiLeaks could be a powerful new tool for whistle-blowers as
they face growing government secrecy, while official channels for complaints
seem to be failing.
"WikiLeaks
could turn out to be the norm in the future. It may make it harder for
governments and corporations to keep dirty secrets," he said.
WikiLeaks
caused more sensation in July when it published 77,000 classified U.S. military
documents painting a dismal picture of the war in Afghanistan. The reports
revealed details of U.S. commando units assigned to kill or capture insurgents,
secret Pakistani support for the Taliban and abusive and corrupt Afghan
authorities. The site promises to release another 15,000 Afghan-related files
in coming weeks along with a video showing a U.S. airstrike on Afghan civilians.
The
Pentagon has reacted with fury, demanding the return of the documents. In July,
U.S. army intelligence analyst Bradley Manning was charged with leaking
classified information to WikiLeaks. The FBI is still exploring charges against
WikiLeaks itself.
Nonetheless,
the site could herald a new culture of whistle-blowing on steroids, free of
dependence on journalists or integrity commissioners to right wrongs.
At the
same time, WikiLeaks could create a new model for gumshoe investigative
reporters who collaborate with websites to reveal whistle-blower information.
WikiLeaks gave early access to its Afghan files to the New York Times, the
Guardian of London and Germany's Der Spiegel, which analyzed the documents and
published lengthy reports.
The models
are still experiencing growing pains. Human-rights groups slammed WikiLeaks for
not deleting the names of Afghan civilians who helped Western forces. Assange
seems to have taken the criticism to heart, pledging to remove civilian names
from his next release.
Pentagon
Papers leaker Daniel Ellsberg, for his part, has called Assange his
"hero" and praised his work as "exemplary."
"For
40 years I've hoped that someone would put out information on the scale that I
did, but in a more timely way than I did," he said in a PBS interview.
Hutton
notes, "People are concerned about WikiLeaks, but what level of concern
should we have that access to information is just a joke in this country?"
