The US government's pursuit of those who break rank to expose its secrets has emerged as the dominant narrative of this decade's war for information. I thought I'd speak to a trio of high-profile whistleblowers who know all about the repercussions of...
The US government's pursuit of those who break rank to expose its secrets has emerged as the dominant narrative of this decade's war for information. Bradley Manning recently learned of the consequences of leaking troves of sensitive documents. Edward Snowden, meanwhile, is still in Russia in a self-imposed exile (he supposedly left the Moscow airport he'd been holed up in for over a month last week, after being granted asylum in the country). With their cases dominating the headlines, I thought I'd speak to a trio of high-profile whistleblowers who know all about the repercussions of speaking truth to power.
DR MARK WHITACRE
Dr Mark Whitacre. (Photo by Jacob Willis of Bauman Photographers)
Mark Whitacre was on the fast-track to corporate stardom. At 32, he was fourth in line for the throne at a 30,000 employee-strong Fortune 500 company. There was a big problem, though. His company, ADM, was swindling billions annually in an international price-fixing scheme.
In the early 1990s, he became a whistleblower after his wife said that, if he didn’t tell the authorities, she would. He wore a wire to work every day for three years, documenting the fraud perpetrated at the company’s highest levels. But Whitacre was no saint; he would be thrown in jail after he lost his whistleblower immunity when it was revealed he had embezzled $9 million.
VICE: What led to your decision to become a whistleblower?
Dr Mark Whitacre: My wife began to notice changes in me. I became obsessed with the corporate jet and the money. She could tell something was weighing heavily on me. This one time, she had me really open up, and that’s when I told her about price fixing, where we formed an international cartel. She forced me to come forward. In my case, I would say my wife was probably the whistleblower more than me.
I read something about you having to wear a wire for three years. What was that experience like?
It was very uncomfortable. It’s the longest duration in US history for anyone to wear a wire. No one’s ever worn a wire every day for three years.
Why did they make you do that?
Some of the price-fixing discussion would come up every day at work. It may only come up three times, and it’d only be 15 minutes each time, and you had to have a wire on to capture that.
Did you feel remorse or doubt when you were blowing the whistle of your colleagues and the folks who paid you?
Yeah, I was conflicted, very much so. It was a very troubling time—dark days during those three years.
Did anyone catch you with the wire?
No. The FBI told me all the time, “Look, these guys could kill you if they catch you with the wire.” They told me that every day. I’d meet with them, they’d shave my chest, tape the microphone to my chest, and tell me that.
My understanding is that you went to jail for embezzlement, and it was connected to your time at the company. What happened?
Yeah, after wearing a wire for about two years, my wife came out to me when I was blowing leaves in the driveway in the rain at 2AM with a shirt and tie on. That’s how gone I was, psychologically. She told me I needed to find God, and I said, “Who needs God? I’m going to be president of the 55th largest company in America.” She said, “You still think you’re going to be president? Once they find out you’re an informant, they’ll fire you.” That’s when I decided that I was going to pay myself three years severance, $9 million to myself. Before that, myself and three colleagues had already embezzled a couple hundred thousand dollars on an investment we lost. The company never turned me in, and then—all of sudden—the day they learned I was an informant they went to the FBI.
So you admit to the embezzling?
Oh yeah. I realized my wife was right, that I was going to lose my job, and that job had millions in stock options. It was two to three million dollars a year with the total compensation. I realised I wasn't going to be president and that it would be very difficult to get a job as a whistleblower. In corporate America in the 90s, whistleblowers were hated. It was easier to get a job as a felon than as a whistleblower.
Has that changed?
Yes, it has changed some because of Enron and WorldCom, but in the 90s you would never get another job if you were exposed as a corporate whistleblower. Never.
What do you make of Snowden? Do you see parallels or share any commonality with what’s going on with him?
No, I really don’t. I don’t see any. I think, from the heart, he was really wanting to do the right thing. Whistleblowers are usually, in lots of cases, young and naive, like I was. If there are any parallels it would be that I was in my early 30s and he was 29.
Do you think he did the right thing?
I think what he did was what was on his heart. I don’t really know enough details to say whether he did the right thing or not. I really don’t. From his heart, he thought he was doing the right thing. One big difference is my wife forced me to turn myself in and he did all that on his own, so there’s a huge difference there.
What about Bradley Manning? Do you feel like he did the right thing?
I don’t really know enough about that case. I’ve seen it from the surface. I don’t really know enough of it.
Well, getting back to Snowden, he lifted the veil on a massive surveillance program run by the US government that appears to infringe on personal liberties. Would you say what Snowden did was a good thing?
I’m not sure I want to comment on that. I don’t know all the details. I really don’t. I’m really close to the government. I do a lot of events for the FBI now. I was the keynote speaker at the FBI academy last year, and I work very closely with the FBI. So I really would rather not comment either way, because I think there’s two sides to that story—I really do.
What would be the flip side? Would you want the FBI or the NSA reading your personal emails?
No, I would not.
Gary Aguirre. (Photo courtesy of Gary Aguirre)
Gary Aguirre was a staff attorney at the US Securities and Exchange Commission during an investigation of an insider trader case throughout the mid-00s. He wanted to subpoena John Mack, a powerful Wall Street executive, but was dissuaded from doing so by a supervisor who said Mack had too much political juice to be trifled with.
Aguirre complained about the preferential treatment given to Mack and was fired. He would go on to send several US Senators a memo about his firing and the alleged preferential treatment. He would ultimately be vindicated: A subsequent US Senate investigation would find that the firing was illegal. The outfit at the centre of the case, Pequot Capital, would settle the insider trading charges with the SEC for $28 million. He has emerged as a major critic of the cosy relationship between SEC and the Wall Street folk who nuked the world’s economy back in 2008. Aguirre now represents whistleblowers in court.
VICE: Institutions often resist change or reform. Do you find there’s often retaliation against whistleblowers?
Gary Aguirre: Yes. Where the whistleblower collides with the practice of an agency is generally when the agency has departed from its mission. For example, engaging in discriminatory practices in enforcing the law. An obvious example is the wink-wink Wall Street gets from the SEC and the Department of Justice. Someone who speaks out against that is going to collide with a policy decision within the agency that is really in conflict with the agency’s mission. In the case of the SEC, they were created after the 1929 crash to keep a vigilant eye on Wall Street.
And when they’re giving Wall Street a pass on causing the financial crisis, that’s really the opposite extreme. So when someone speaks out against that and is punished for it, that is illegal, but unfortunately it’s pretty common. With some organisations and government agencies, which are designed to exercise oversight over an industry, the individuals rotate in and out of the industry at the upper echelon of the agency. So there tends to be leniency at the upper ends of the agency. It’s not just the securities industry, it happens in the energy industry as well.
A perfect example is Robert Khuzami, who was enforcement director at the SEC and he rotates out of the SEC into a $5 million a year job with a law firm that represents people engaged in insider trading.
It sounds pretty incestuous.
Extremely incestuous. That’s how agencies eventually become ineffectual.
So does that speak to the need for whistleblowers within the SEC?
Absolutely. The whistleblower is the antidote to the revolving door. And that’s where they come into conflict. Individuals in agencies have their eye on the next job and they don’t want to offend anyone within the industry—within, for example, Wall Street banks. If they’re going to leap out from the head of the Division of Enforcement to a law firm that represents the banks, it’s not a career-enhancing step to provoke the banks while you’re still at the SEC.
So has anything changed since your situation? You often hear the complaint that no one has been thrown in jail because of the 2008 meltdown. Has anything changed since you went through what you had to go through?
Now the SEC gets that they weren’t doing anything about insider trading. There’s been this crackdown on insider trading for the last seven years, and that's attributable to the US Senate’s thrashing of the SEC. But they’ve completely ignored the players that created the financial crisis, which is a fraud of infinitely more serious impact on the markets. I don’t think insider trading is going to cause the capital markets to collapse. But the financial fraud leading up to the 2008 crisis nearly pushed the country into the void.
What do you make of Edward Snowden? Did he do the right thing?
That’s a tough one for me because I have to defend people who the government has put in their crosshairs, so basically my practice involves protecting whistleblowers within the law. And Snowden is really outside my bailiwick. In one sense, if I pontificated on my own views about Snowden, that could somehow come back, I think, and be used to harm the clients who I’m trying to effectively represent.
Does he have a legal leg to stand on for his actions?
You know, I haven’t tried to analyse it from a legal standpoint. In the case where they charged—who’s the other high-profile whistleblower?
Yeah, where they’ve charged him with aiding and abetting the enemy, I mean, my gut feeling is that that's a bit of a reach. I think you have to distinguish between constructing a legal argument to defend a whistleblower, which is what I do, and pontificating about the ethics and morality and whether it’s needed. I have my own views on that, and I would say I’m not unsympathetic to people who take risks to divulge information that is troublesome about the way our government operates, but would I actually make an argument to defend that?
I don’t know that there is a legal argument to defend them on the basis of whistleblowing. Particularly in view of recent cases of our Supreme Court, where a district attorney claimed that he was exercising free speech in his whistleblowing—well, the Supreme Court shot him down. So one potential claim a whistleblower might make is that they’re really asserting their First Amendment rights. Now, that’s not going to fly with the Supreme Court. I wouldn’t want to pontificate; there’s probably a lawyer out there right now trying to figure out how to design a defence for both Manning and Snowden, and I sure wouldn’t want anyone citing Aguirre saying, “That’s a groundless defence.”
Okay. Thanks, Gary.
DR JEFFREY WIGAND
Dr. Jeffrey Wigand was vice president of research and development for Brown & Williamson Tobacco Corporation during the late 1980s and early 1990s. After he left the company, he cooperated with federal investigators who were looking into the health effects of nicotine in tobacco products. In 1995, he became the highest-ranking major former tobacco executive to talk about the public health effects of smoking. He consequently received multiple death threats.
So what led to your decision to become a whistleblower?
Dr Jeffrey Wigand: I had spent 20-plus years in the healthcare industry. And I was to supposed to develop a quote, unquote “safer” cigarette, when there’s no such animal as a safe cigarette or tobacco product. I was paid very well. I was working for the world’s second largest tobacco company. What I learned during my experience with the company was just how fraudulent—fraudulent being a legal term—the company was. The products were intended to kill the user. To me, that was both a legal and moral issue. I tried to resolve it internally and got censored for doing it. When harm is becoming part of what the product does and the user has no knowledge because the industry is always telling the opposite of what is really going on, I felt like I had an obligation to tell the truth.
Was there any specific tipping point?
I don’t know if I would say that. I had an epiphany of reason. I had a hierarchy of values. What do I do with the information I know? Do I put my family at risk? The company had been using a sweetener that is generally associated with rat poison in its products. In 1955, the Food and Drug Administration had banned it as being toxic. The company continued to use it in spite of the law that said it wasn’t allowed to be used. I saw lawyers change the minutes of meetings. We were coached on what we could say outside of the company versus the internal daily mantra.
A cynic might look at your situation and say you have a PhD, so surely you knew when you took the job that tobacco is harmful for you. If you had such a moral outrage, why take the job in the first place?
It’s not a moral outrage when you find fraud. I went to the company in good faith and tried to use my medical and scientific background to make a safer product. The cynic doesn’t bother me. I’ll deal with the cynic.
How did becoming a whistleblower change your life?
Considerably. Death threats, not being able to get employment, bodyguards.
Was that because you were receiving death threats?
Yes. The last one I got was on November the 14th of last year.
So this is an on-going problem?
Whenever I do anything against the industry, someone feels like I’m doing the industry harm by sharing the truth.
How did it change anything in terms of tobacco regulation?
Look at the whole European framework convention for tobacco control. It started at the World Health Organisation partially from disclosures I made, as well as litigation. I started the whole process. Look at the packaging in the UK. Look at the packaging in Australia, New Zealand. Look at the smoke-free environment in Italy, Malta. There has been change. Is the change instantaneous? No.
What about in the US? What kind of change came about there?
The industry was sued by states for fraud. They’ve changed their advertising--no more Joe Camel and Marlboro Man. Two years ago the federal court also sanctioned them for fraud and there has been litigation action, which has fostered social and political change. Is it happening as fast as we would have liked? No.
Edward Snowden is dominating the headlines recently. Do you see parallels or similarities between him and yourself?
I have a problem with what Snowden did.
Why? Because he has exposed harm. This was sanctioned by the government. Why didn’t he stay here and fight the battle? Why did he go to China? Why did he go to Russia? Why didn’t he try to face the charge and make the change as other people have done?
The counter-argument to that is that the NSA is an organisation you don’t really want to mess with, and that if he had stayed in the US he would have faced a serious reprisal and possibly not received a fair trial.
I don’t know. I would expect that justice would be served. I mean, other whistleblowers have not tried to [flee] internationally. I have a problem with that.
So you don’t have a problem with the fact that he leaked the things he did, you have a problem with the fact that he ran?
He has to face the music. We all did. I did. Why did he leave the country? I don’t know what he’s been doing.
Do you think it’s realistic for him to fear for his freedom after exposing this huge surveillance program run by a clandestine and powerful organisation?
I think he has some narcissistic tendencies. Similar thing with Manning. He exposed Afghan informants or collaborators with the US government. That’s basically saying, "They deserve to die.” I’m not quite sure I share that view.
You bring up Manning. He’s been in military jail. Snowden obviously thought a similar fate awaited him.
I haven’t seen the good that comes out of this yet. I haven’t seen it. How is it going to change things and save lives?
What about the fact that Snowden has exposed a massive surveillance program that appears to violate several tenets of the US Constitution, to say nothing of international law? Isn’t that a significant enough starting point for change?
I don’t know. Has it changed the NSA?
I suppose time will tell.
Yes, it will. But right now all it’s created is a massive controversy, diplomatic issues. If he wanted to ring the bell, be a Paul Revere. Why did he run? From my point of view, did I change the health outcomes for millions of people? Yes. Have I done the right thing legally and morally? Yes. Am I sure about Snowden and Manning? No, I’m not sure.
Follow Danny on Twitter: @DMacCash
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