“Every time we turn our heads the other way when we see the law flouted, when we tolerate what we know to be wrong, when we close our eyes and ears to the corrupt because we are too busy or too frightened, when we fail to speak up and speak out, we strike a blow against freedom and decency and justice.” Robert F. Kennedy.
Fifty years after
his death, the life of Robert F. Kennedy remains a beacon of hope and
inspiration for yet another generation of Americans, more necessary today
perhaps than at any time since June 5, 1968. Much of what is written in 2018 focuses
on the epic legislative, bureaucratic and street battles of the 1960s, on Kennedy
“transformation” as a political figure central to the wrenching debates, and
the need for healing both home and abroad. The fight for civil rights, the role
of military might info reign policy and national security, and the crying need
for radical inclusion, the latter promoted by the most prescient in U.S. leader
ship now, are but the most important issues that form the cornerstone of Bobby’s
legacy.
At the
same time, it is important to remember the earlier life and
times of RFK, for his basic values and moral compass set the stage for all that
came after. During the heyday of anti-communist witch-hunter Joe McCarthy, it
was young Bobby who went to war with the Wisconsin Republican ‘s vicious,
calculating and self-promoting aide Roy Cohen. Cohen later became a lawyer for
a Mafia whose deadly tentacles and reach affected vast swathes of American
life, as well as for New York City glitterati. It was in that fight against
organized crime that Kennedy took on corrupt (“Every man has his price”)
Teamster labor leader Jimmy Hoffa. In his book, The Enemy Within,
the emerging
crusader rightly put both business and labor on notice that, “The tyrant,
the bully, the corrupter and corrupted are figures of shame.” It was RFK ‘s
values and his moral compass that led him to remind his readers, and those
today who also appear to need reminding, of the central role played
by the “toughness and idealism that guided our nation in the past.”, a “spirit
of adventure, a will to fight what is evil, and a desire to serve.”
Less known to the
public is the specific role played by Robert Kennedy`s leadership in promoting
modern-day whistleblowers and the rights of public employee free speech.
Toughness, idealism, fighting evil and a desire to serve is what unites real
whistleblowers across the political and ideological spectrum, those who
confront violations of law, rule or regulation, gross mismanagement, gross
waste of funds or abuse of authority.
The role played by
Kennedy ‘s former assistant at the U.S. Department of Justice, John E. Nolan,
Jr., and those whistleblowers who Nolan later defended, forms the underlying
narrative. The story pulls together both later legislative battles and the most
effective advocacy by both Democrats and Republicans in fighting for the right
to speak truth to power.
A Korean War
veteran and a graduate of the U.S. Naval Academy, Nolan, who had
worked on John Kennedy ‘s 1960 presidential campaign, came to public
attention as a negotiator with Cuban dictator Fidel Castro for their turn of
CIA officers and more than 1,100 other men captured in the abortive 1961 Bay of
Pigs invasion. In 1963, he took a leave of absence from the prestigious Steptoe
& Johnson law firm to become Attorney General Kennedy ‘s administrative
assistant. It was in that position that Nolan spent much of that summer in the
Deep South working with top RFK aides Burke Marshall and John Doar. Those
crucial efforts of the first White House ever to promote civil rights is more
than half a century later so stunningly well captured in Steven Levingston ‘s Kennedy and King: The President, the
Pastor, and the Battle Over Civil Rights.
Robert Kennedy,
Nolan remembered in an interview with the Washington Lawyer, “had the qualities of natural leaders that exceeded those
of anybody else I have seen. He was very direct, and I thought he
had extraordinarily good judgment. He made a lot of quick judgment sand was
pretty good on that.”
Of particular
importance was how Nolan addressed questions of federal employee free speech rights:
“The more significant or more complex an issue was, the more he studied it,
sometimes with the benefit of conflicting views and large groups that he would
probe with questions… He was more
likely to get the right answer under those circumstances than
anybody else I know or have heard of.” (Italics added.)
It was just months
after Kennedy was shot the night that he won the California and South Dakota
primaries that Nolan came to represent the famed Department of Defense
whistleblower A. Ernest Fitzgerald. The DoD official, he rightly noted, “you
might say …was the father of whistleblowers.” It was fighting for
Fitzgerald and the fundamental good government issues that his case represented
that led Nolan to make his first appearance before the Supreme Court.
On November 13,
1968 civilian analyst Ernie Fitzgerald testified before the Subcommittee on
Economy in Government of the Joint Economic Committee of the U.S. Congress
about the Pentagon´s order for the C-5A jumbo cargo transport plane,
designed and built by the military-industrial giant Lockheed. Already the
scuttlebutt of rumors, Fitzgerald was asked by a senator about
the cost overruns in the bureaucratic fix. He testified under oath that
there were some $2.3 billion (approximately$14 billion int today’s dollars) in
unexpected costs, in 1968 considered an incredible sum. As Nolan remembered, Fitzgerald’s
world “blew up with that single answer.”
As Nolan recalled
in the interview with the Washington Lawyer, when then-President Lyndon Johnson’s
outgoing secretary of the air force met with the person taking that
position in the Republican administration of Richard M. Nixon, the Democratic
appointee “had an agenda of the eight most important issues to take up. This
was pretty close to the height of the Cold War, and you can imagine the
momentous issues of nuclear war or peace that might have been included.
Nonetheless, Ernie Fitzgerald was number two on his list.”
At the beginning
of 1970, the administration of a supposedly “new” Nixon reorganized the
Department of the Air Force and ordered a unique “reduction in force” whose
only victim was Ernie Fitzgerald, an action for which Nixon took
responsibility. (Transcripts of White House tapes made public years later
showed that Nixon ordered one of his aides to get “rid of that son of a
bitch.") After the Civil Service Commission concluded that Fitzgerald’s
dismissal was unjust and the newly-minted whistleblower was able to get
his old job back in a lawsuit, he found that he no longer had a phone in
his office, nor a secretary, or even anything to do.
The ghost employee
then sued Nixon himself and two presidential aides whose names would be
forever enshrined in the coming Watergate scandal -Bryce Harlow, the first
person appointed to the White House staff after Nixon was elected president,
and Alexander Butterfield, who revealed the existence of the White House tapes
during the scandal investigation.
Fitzgerald´s
lawsuits provide insight into some of the hottest questions faced today in our nation’s
capital. Argued in late 1981, the Supreme Court held, 5-4, in Nixon v.
Fitzgerald the following year that presidential immunity was absolute. However,
in the second case, Fitzgerald claimed that Harlow and Butterfield were
involved in a conspiracy that resulted in his wrongful dismissal -a charge that
they denied- and asked for damages. Nolan pointed out, “the issue was
derivative absolute immunity: if the president has absolute immunity, the
argument was that his special assistants should have derivative absolute immunity.”
“That case was remanded to the District Court and
it was settled under circumstances that were favorable to Fitzgerald.”
Even before that -as the media had fun with Fitzgerald’s
on-going whistleblowing about widespread fraud at the Pentagon,
including $400hammers and $600 toilet seats- according to Senator Chuck Grassley,
now the chair of the Senate Judiciary Committee, Fitzgerald “was instrumental
in helping get the Civil Service Reform Act of 1978 passed.”
What is certain is that some of the other most
important figures in the second half of the 20th century was linked
to the Kennedy promise and, frequently the Kennedy Administration, and were
also in their own way whistleblowers, speaking truth to power. They
too, are examples that showed a “toughness É that guided our nation in the
past,” a “spirit of adventure, a will to fight what is evil, and a desire to
serve.”
Patricia M. “Patt” Derian served as a brave civil rights champion
in brutally racist Mississippi, comforting the family of martyred civil rights
leader Medgar Evers the day after his murder by the Klu Klux Klan. She later
went on to work for Bobby’s brother-in-law Sargent Shriver in the war on
poverty. According to Ellen B. Meacham’s moving Delta Epipheny;
Robert F. Kennedy in Mississippi, in April 1967, following Senator Kennedy’s
hearing in Jackson on allegations that the Head Start program in Mississippi
was misusing federal funds -refuted in the testimony of the young civil rights
attorney Marian Wright, who later married Kennedy aide Peter Edelman-Patt fêted
Bobby at a cocktail party in her own home.
When Jimmy Carter became president in 1977, as The Times of London
recalled upon her own passing two years ago, Patt was "a courageous
champion of civil rights who took on some of the world’s most brutal dictators
in her role as a senior American diplomat.” Those defenders in Washington
of notorious strongmen, those who today form a bipartisan gallery of
international perp apologists, sought to discredit Patt in every way
possible as she blew the whistle as only those with real moral fiber
can.
Truth to power was her strong suit. It was as the first assistant secretary
of state for human rights that Patt underscored that when it came to efforts to
restore and promote human rights “you always have to play it straight.” As a member of the Robert F. Kennedy Memorial Foundation
(now RFK Human Rights) awards committee, Patt brought that laser-like focus to
leading the fight against an Orwellian State Department decision to deny
visas-- for “terrorist activities” - to four Salvadoran human rights advocates
who were to receive $30,000 as part of that year’s foundation award. A year
later, her testimony in a civilian court in Buenos Aires about Argentina’s
so-called dirty “war” electrified the mini-Nuremberg proceedings. The trial of
the military junta members resulted in their being put behind bars for
orchestrating a clandestine campaign of state terror, of mass torture and
murder.
Former CIA Director William Colby was arguably the most important
national security whistleblower in modern times. When he took over the post,
the United States was reeling from humiliation in Southeast Asia, the Watergate
scandal, revelations about Nixon Administration support for the military
overthrow of an elected democracy in the Americas, and the fact the Soviet
Union -the pre-Putin’s- appeared on the ascendancy. It was Colby, a “soldier-priest”
in the clandestine service, who told truth to power, a list of 693
single-spaced pages known as “the family jewels” given to Congress, showed how
the Agency had violated its charter by spying on Americans, reading their
tax returns, tapping their telephones, and opening their mail. It had conducted
LSD experiments on unwitting human guinea pigs. It had plotted to murder
foreign leaders. As crusading journalist Daniel Schorr noted in his
autobiography, Stay Tuned: A Life in Journalism,
At Tulane University, I had been scheduled to debate (former CIA
Director) Bill Colby. He defended me better than I could have defended myself,
telling the ... audience, “Schorr carried out his obligation to the First
Amendment and to himself as a newsman, and he should not be punished for the
publication of the Pike (intelligence investigation) report."
By disclosing some of America’s darkest secrets, and ensuring meaningful
Congressional oversight, Colby was able to save an Agency most neededpost-9/11,
especially after revelations of Vladimir Putin’s direct involvement in trying
to subvert the American democratic process.
At a time of great and frequently destructive hyper-politicization in
the United States today, it is important to note that those at the forefront on
Capitol Hill in promoting and protecting whistleblower rights span the
Republican-Democratic and liberal-conservative divides. Senators Charles
Grassley (R), Ben Cardin (D), Ron Johnson(R), Ron Wyden (D), Joni Ernst (R),
Patrick Leahy (D), and Tammy Baldwin (D) and Members of the House Jackie Speier
(D), Ron Coffman (R), Hank Johnson (D), and Ron Blum (R) are just some of the
most fierce and effective champions of federal employee First Amendment rights.
Jackie Speier has noted:
“Whistleblowers are on the front lines, working to uncover waste,
fraud, and abuse. Throughout my career, whistleblowers have been central to my
work in oversight and reform. They’ve brought to light wasteful spending,
hostile workplaces, and dangerous practices from the Pentagon to the pipelines beneath
our feet. We must provide them with the protections they need to work with
Congress and the Inspectors General to conduct genuine oversight. I look
forward to working with my colleagues to fight for strong whistleblower protections
across all departments and agencies.”
Being able to unite people of diverse backgrounds and experiences in
difficult times was one of Robert Kennedy’s most important contributions to
American politics. Whistleblowers honor not only his advocacy of change through
law, but also the fact that today -when America needs it most- they
serve and protect both the interests of the American taxpayer and our
common values.
It was one of RFK´s favorite
philosophers, Albert Camus, who said, “A man without ethics is a wild beast
loose upon this world.” And as Kennedy
said in his Law Day Address at the University of Georgia Law School, delivered
6 May 1961 in Athens, Georgia, “In the United States, we are striving to
establish a rule of law instead of a rule of force. In that forum and elsewhere
around the world our deeds will speak for us.”
***Martin Edwin Andersen has been a national
security and human rights whistleblower at both the Departments of
Justice and Defense. In 2001, he was the first national security
whistleblower to receive the U.S. Office of Special Counsel’s “Public
Servant Award” for fighting against Criminal Division failures to protect CIA
classified information, senior DoJ management’s leaving themselves open to
blackmail in proto-Putin Russia, and myriad issues of waste, fraud and abuse.
In his most recent case involving U.S. Southern Command, Andersen has filed
three Congressional Disclosures to the Intelligence Community Office of the
Inspector General, the latest of which was forwarded by the Director of
National Intelligence to the House and Senate Intelligence Committees on
Thursday.