JOHN KIRIAKOU: Whistleblower System Doesn’t Work

Joe Carson, a nuclear safety engineer, flagged waste, fraud, abuse and illegality at the Department of Energy again and again and again. His story should show Congress what needs to get fixed.

The Department of Energy complex in Washington, D.C. (Matthew G. Bisanz, CC BY-SA 3.0, Wikimedia Commons)

By John Kiriakou
Special to Consortium News

I write a lot about whistleblowers.  They’re usually national security whistleblowers like Daniel Ellsberg, Ed Snowden, Jeffrey Sterling, Daniel Hale and Darin Jones.  But I’ve become friendly with another one, Joe Carson, a nuclear safety engineer at the U.S. Department of Energy who has a unique case that is largely being ignored by the media, whistleblower support organizations and even other whistleblowers.

Carson is not your typical whistleblower, who makes a revelation of wrongdoing and then deals with the fallout.  Instead, he blew the whistle on waste, fraud, abuse and illegality at the Department of Energy, (DOE) and then did it again and again and again.  And to make matters more difficult for him, he had to deal with the fallout not just from DOE, but from the governmental organizations set up to protect whistleblowers.  Consequently, he has spent decades in court.

Joe Carson. (Twitter)

Carson was born in Brooklyn and earned a degree in mechanical engineering from the University of Rochester.  He was then hand-picked by Admiral Hyman Rickover, the father of the nuclear navy, to spend six years on a nuclear submarine. In 1982, Carson moved into the private sector, working as an engineer at several nuclear energy facilities. In 1990 he joined the DOE as an engineer.

Just one year later, in 1991, Carson blew the whistle on wrongdoing for the first time.  He reported that the Energy Department was illegally using paid consultants to supplement employees.  He argued that this was designed to “milk the system.”  The agency immediately retaliated by declining to implement his safety findings, which detailed serious workplace issues in the DOE’s Oak Ridge, Tennessee, nuclear facilities, putting lives in danger.

It took 10 years, but the Merit Systems Protection Board  found in Carson’s favor, ruling that the Energy Department

“retaliated against the appellant because of his whistleblowing by taking away critical duties from his job assignments, issuing letters of admonishment, and by reassigning him from his home in Tennessee to Maryland. This retaliation, not surprisingly, resulted in illness and stress, as well as necessitated the appellant to take a large amount of time from work to consult with his attorneys and other advisors.”

The Energy Department was ordered to pay Carson $400,000 for legal fees and costs.  But the story doesn’t end there.  Frankly, Carson’s complaints about DOE were just the beginning.

He used his notoriety to file repeated complaints against the Department of Energy, mostly dealing with safety issues.  Indeed, since 1991, he has filed over 20 whistleblower disclosures, several of which are still pending in federal courts.  Carson maintains that the Department of Energy cares little for the safety of its employees, its contractors, or the American people and that it ignores safety regulations and laws at its facilities around the country.

Stickler for Process

I’ve gotten to know Joe Carson over the years.  He’s a stickler for process.  He believes that if the government sets up a process under which whistleblowers must make their disclosures, then that’s the way it’s supposed to be done.

The government has done that through the Merit System Protection Board, or MSPB, and the DOJ’s Office of Special Counsel.  MSPB is an independent, quasi-judicial agency in the executive branch that serves as the guardian of federal merit systems.  Its mission is to “Protect the merit system principles (of government) and promote an effective federal workforce free of prohibited personnel practices.”  In other words, it is precisely the place where a federal whistleblower should go to report evidence of waste, fraud, abuse, illegality, or threats to the public health or public safety.

Carson, unlike many whistleblowers, has gone repeatedly to the MSPB to make his whistleblower revelations.  That’s what federal employees outside the Intelligence Community are trained to do.  See something wrong?  Go to the MSPB.  If the whistleblower doesn’t get satisfaction at MSPB, he can also go to the independent Office of Special Counsel.  They are supposed to be the entities to order the federal department or agency to correct the wrong that the whistleblower is bringing to light, and if they can’t, Special Counsel is supposed to file a federal suit to get the courts to fix the problem.  But it doesn’t always work the way it’s supposed to.

Carson told an interviewer, “My 30-plus year whistleblowing story has essentially two parts: the first part was against DOE.  The second part is against the Office of Special Counsel and MSPB.”

Oak Ridge National Laboratory main campus. (Oak Ridge National Laboratory, U.S. Dept. of Energy)

In a perfect world, a whistleblower makes a revelation to MSPB, the organization takes months, maybe even a year, to do an investigation, and it finally makes a determination.  It fixes the problem or it goes to court.  It shouldn’t take decades, millions of dollars in legal fees, and multiple federal courts to come to a conclusion.  Couple that with multiple whistleblower revelations like those made by Carson and you have an unworkable quagmire.

When Carson and I first met, Joe asked me why I hadn’t made a whistleblower complaint to the MSPB or to the Office of Special Counsel when I blew the whistle on the C.I.A.’s torture program.

In my case, I couldn’t report to my chain of command because it had itself created the torture program.  I couldn’t go to the congressional oversight committees because they had secretly approved and appropriated funds for the torture program.  I couldn’t go to MSPB because there was no mechanism for Intelligence Community employees to go there.  I couldn’t go to the Office of Special Counsel because it and its sister organization at the Justice Department, the Office of Legal Counsel, had “legalized” the torture program.  My only choice was to go to the media.  I wished there had been a viable process for me and for other national security whistleblowers.  There just wasn’t.

Complaint Takes a Decade

MSPB and the Office of Special Counsel have been around for a long time, so why does it then sometimes take a decade or more for the whistleblower’s complaint to be heard?  Carson’s personal experience contains the answer.

When Carson made his revelations to MSPB he soon learned several things about both DOE and the whistleblowing process. 

First, he learned that DOE, like many other governmental entities is clueless about whether its employees are protected from retaliation after making a whistleblower revelation. The DOE argued in Carson’s many cases that it owed Carson no protections whatsoever and that there was nothing illegal about retaliating against a whistleblower.  They saw him only as a disgruntled employee.  (That’s why Congress was forced to pass a whistleblower protection law in 1989 and to update it during the Obama administration.  Federal departments and agencies simply violate the rights of whistleblowers all the time.)

1943 billboard during wartime research on building a nuclear bomb. (Oak Ridge National Laboratory, Flickr)

Second, the Office of Special Counsel has dropped the ball and will not act as a prosecutor and bring cases on behalf of whistleblowers, exactly what it was created to do.

The Office of Special Counsel says in the first sentence of its mission statement that it is “an independent federal investigative and prosecutorial agency.” It is supposed to prosecute government entities who violate the rights of whistleblowers.  But it shirks that responsibility.  Ideally, there should be no federal whistleblower cases in the courts.  They should all be settled by MSPB or the Office of Special Counsel.  But they just don’t do their jobs.  And as a result, the courts get clogged with cases like Carson’s that last for decades.

And third, the Merit System Protection Board has proven itself to be a politicized, ideological organization that is more concerned with power and patronage than with helping anybodyU.S. senators, who vote on nominees to the MSPB, have fought over its ideological balance since 2017.  And as crazy as it sounds, senators couldn’t agree on any of President Donald Trump’s MSPB nominees.  Two of the three MSPB seats remained vacant, while in 2019, the third member’s term expired.  Since then, there have been no new members appointed to MSPB.  Every single position is vacant.

Why Alone?

Carson raises another important point in interviews and in his letters to congressional and White House leaders.  Where are outside groups in all this?  Where are the federal employees’ unions?  Where are the whistleblower organizations and NGOs?  Where are the faith-based organizations on some of these broader issues?  (Carson is a longtime member of a Christian engineers’ organization.)  Why do whistleblowers have to fight their fights against waste, fraud, abuse, and illegality in the federal space alone?

That’s the $64,000 question.  This is an important issue.  Congress has dropped the ball.  There’s no functional organization for a federal whistleblower to go to.  There’s no oversight.

The Office of Special Counsel, with its 130 employees, doesn’t have the resources to comply with the whistleblower protection law that’s supposed to cover the entire federal government and its 2.1 million employees.  The Merit System Protection Board is paralyzed by political infighting.  Outside organizations don’t want to get involved.  Carson is saying that the emperor has no clothes.  Why isn’t anybody else saying so?

The system is utterly and completely broken.  Sure, there’s a whistleblower law on the books.  But does that matter if nobody enforces it?

Congress has to rebuild the whistleblower reporting system from the ground up.  That means three things.

No. 1: The Senate must allow for the immediate appointment and confirmation of non-ideological professionals to staff the MSPB.  Congressional inaction hurts only whistleblowers.

No. 2:  Congress must amend the law reauthorizing the Merit System Protection Board to force federal entities to create and maintain working conditions conducive to whistleblowing.  That should have been settled by Carson’s first case.  It wasn’t. 

And No. 3: Congress must specify in the MSPB reauthorization bill, pending now in the House of Representatives, when and how it would report to Congress on federal whistleblowing.

Inaction is not acceptable.

John Kiriakou is a former CIA counterterrorism officer and a former senior investigator with the Senate Foreign Relations Committee. John became the sixth whistleblower indicted by the Obama administration under the Espionage Act—a law designed to punish spies. He served 23 months in prison as a result of his attempts to oppose the Bush administration’s torture program.

The views expressed are solely those of the author and may or may not reflect those of Consortium News.

8 comments for “JOHN KIRIAKOU: Whistleblower System Doesn’t Work

  1. Bear444
    March 2, 2022 at 23:42

    To say that the whistleblower system does not work is an understatement. It works very well—against the whistleblowers. It is sort of the “Venus fly trap,” where this system promises people a “safe landing space” to make a complaint, then devours the complainant (defendant) in a morass of illegal actions, smoke and mirrors, and alienation. Whether you have lawyers or not is irrelevant. Some of these “whistleblower protection” law firms are embedded with the government, and secretively work against the complainant. The trap begins to be set, by forcing the complainant into excessive legal expenses, while the government can work forever (at public expense) against the whistleblower’s claims.

    Then, the Inspector General’s (IG) office gets to the real nasty work of building a case against the complainant. The IG breaks laws, suppresses evidence, and finds any kind of dirt imaginable on the complainant. Most of the IG offices are corrupt to the bone. They don’t answer to anyone, essentially, and can destroy evidence at will. If you work in the Intelligence Community (IC), you have very little recourse. If you go to the wretched media, you become guilty of treason or some other “cooked up” crime. And the media is no friend of patriots, for sure. It could be anything—time card violations, saying something inappropriate to your boss, etc. Then, a complainant faces unemployment for years while the case ensues in court. In some situations, a complainant could actually face jail time for committing an “offense” that would not normally be prosecuted, because so many people do the same thing. In the IC, a complainant may have his/her security clearance suspended—which severely erodes possibilities for other employment options.

    I could create a system overnight which would fix the problems addressed above. But the Masters don’t want to fix it. They would rather create the “illusion” that wrongs are being persecuted, and then focus on eliminating the right-minded complainant. This theme occurs in many other areas of jurisprudence. The system needs to be changed.

  2. robert e williamson jr
    March 2, 2022 at 17:36

    John I have some experience in the nuclear field gained through my employment at the Dept Of Nuclear Safety, State of Illinois.(IDNS) The agency was born in 1980 by Gov. Jim Thompson’s Executive order. More info on Illinois Nuclear History can be found at Illinois wiki and the wiki list of power stations in Illinois.

    I gained much knowledge of the history of all things nuclear from my employment by was of being involved in FUSRAP remediation projects. It became a curse on me and lead to my absolutely believing many of these people were consumed by cynicism and arrogance. If they had political juice enough to get into these programs their arrogance was insurmountable. On the other hand others not brainwashed or mentally ill (manic cynicism and arrogance driven by the power they felt they wielded), but having great talents were given deals they couldn’t refuse. The old “if you don’t work for us, you will not work anywhere “, routine.

    In my opinion the whistle blower problem in this country has been greatly influenced and encouraged by the examples set at various nuke labs around the country, most all being ran by contractors and consultants, as I’m sure you and Mr. Carter likely already know. Exacerbated is the word that come to mind.

    The nuclear industry is very much an uppity clique or club that allows only those it approves , powers of influence. In order to profit organizations must exhibit a history of total allegiance, homage to all things nuclear. The type of loyalty the Nuclear Navy excels at.

    An industry cloaked in secrecy that has had it’s biggest success in keeping Americans out of the loop with respect to releasing reliable information to the public concerning just about everything.

    I can assure you that from personal experience the pressure on whistle blowers in this industry is enormous.

    The use of intimidation and other mechanisms by authorities has ran rampant throughout the history of the industry. The Apollo Affair is a primary example of a major coverup conducted by FBI, USAEC and CIA, like it or not, this is a fundamental truth in our nations nuclear history. A major political, technical and total failure by our government. One of hundreds of incidents of coverups the industry has historically been involved in. Those occurring during atmospheric testing being the most damaging to the public health wise. Ironically much of this history has been written about and duly denied by the old USAEC and further concealed during FOIA actions inquiring into the past. It’s that old, ” in the interest of national security Bull shit.

    These days the common mentality used when making judgements about past actions seems to be to what end is served by pursuing “old news” shortcomings in the past, “besides it’s all classified”, that never wavering caveat. This is extremely dangerous thinking in my opinion.

    For Mr. Carson to come from the background he does and still become a whistle blower “shouts volumes” about his inclinations to speak out. This takes great intestinal fortitude. Someone needs to talk publicly about nuclear problems, contractors and consultants are damned sure not the go to people. I know from personal experience.

    Experience that included personally witnessing the “HOG CONTRACTORS” lining up the the feed trough.

    This aspect of the nuclear industry has been out of control ever since Admiral Hyman G. Rickover became the one man in charge of developing America’s Nuclear Navy. Rickover was very very good at what he did, gifted.

    He should have been incredibly successful at the task for he had an opportunity few every get to wear the hat of the industry leader and the hat of a USAEC official.

    Ask Mr. Carson if he is familiar with the book the THE RICKOVER AFFECT by Theodore Rockwell, C 1992. In the volume he bragged about using one hat, his Navy hat, to facilitate coming up with resources to develop his technical ideas and the USAEC hat to get the rules he needed go facilitate his plans. How convenient for him at the time. But this cozy relationship set the stage for a very secretive USAEC pull off many egregious activities, that if known to the public today would reveal an out of control monster existing off the public teat.

    You have friends you’re not aware Mr. Carter. You will have many more if any of the re-licensed Nuke Power Generating stations develop problems in Illinois.

    We are sitting am0ngst many potential public safety threats from many of the nuke plants here in Illinois. Plants re-licensed to avail longer generating life at the same time the power rating of the reactors were upgraded allowing increased reactor power, an”up-rate” license, to be authorized. Check that wiki for Illinois electrical generation stations, the re-license dates are listed.

    Thanks to you both and thanks to CN.

  3. Me Myself
    March 2, 2022 at 09:40

    The government is run by corporate shills. The question is what can be done to change it?

    • March 2, 2022 at 16:23

      Unfortunately nothing. Two parties beholden to the same master and with no chance for a 3rd party to emerge. If electorate doesn’t wake up and understand this issue, nothing will change. Electorate will never be allowed to understand due to the control of the MSM by the “masters”.

      • John Ressler
        March 3, 2022 at 13:48

        Your comment is 100 % accurate from my POV. Third party candidates do not have a snowballs chance in hell especially given that the voters STILL vote for D or R at election times.

  4. March 1, 2022 at 18:53

    What gets left out in government corruption is that too many persons are aligned on the fascist standard that rational persons demanding laws being enforced are the problem. Trump didn’t create that problem: that problem created Trump.

  5. Lois Gagnon
    March 1, 2022 at 16:45

    The ruling oligarchy doesn’t like whistle blowers. Since Congress represents the interests of the ruling oligarchy and not the public, it has no incentive to fix the broken system.

  6. evelync
    March 1, 2022 at 15:52

    Joe Carson’s story reminds me of Bill Binney’s story .
    Both people are dedicated to principles that just don’t fit with the American way of life as practiced at the “highest” levels of the empire.
    Both men value honesty and integrity.
    Both me have been committed to public service.
    Both men care about saving taxpayer dollars.
    That’s just not in line with the current set of values of those who call the shots both in and out of government.

    Bill Binney’s ThinThread cost the taxpayers a few $hundred thousand and worked well – but it was unacceptable to those at the top who preferred to waste $billions on a system that missed the 9/11 alerts that Binney is certain ThinThread would have found…

    “How could we tell?” say those in charge who don’t seem to give a ‘s..t’.

    Our accepted methods are great if the top priority is to fatten the profiteers at the expense of all else…

    As Dick Cheney said when asked about the pricey plans for a grand celebration after the 2000 GWB “win” – “now we get ours”.

    Everything is upside down.

    Thanks to Joe Carson for his endless courage and integrity.
    He deserves better.

    It’s amazing that to keep things the corrupt way they are, the wrongdoers are happy to shell out $400,000 and continue on their merry way.
    I’m glad Mr Carson was awarded these funds! He deserves that and more!

    The wrongdoers just don’t care. And neither does our leadership or they’d do something.


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