Whistleblower: A Positive Note

This might qualify as the most depressing book.  In “Crisis of Conscience: Whistleblowing in the Age of Fraud,” journalist Tom Mueller records what happens when large organizations get involved in fraud, and when honest people try to alert the authorities about that fraud.

Do not try to read this book if you feel susceptible to periods of unrelieved despair.

Mueller records case after case of organizations protecting their perpetrators, and punishing the honest reporters.

A bank, for example, pays a seemingly impressive fine without admitting guilt, promises to do better, and promptly promotes the head of department that committed the fraud.  The whistleblower needs to find another job, in another industry. The top regulator insists that underlings go easy on the perpetrators, and then promptly “retires” to a lucrative job with the corporation run by the perpetrators.  Unsurprisingly, the bank winds up having to pay another impressive fine a couple of years later, for some different fraudulent activity.  Again, it promises to do better.

This happens in practice; respected thinkers defend it in theory.

Theorists from the “law and economics” school develop a model of “rational self interest,” that quickly turns into defense of the most corrupt possible activities.   Corporations cannot be guilty of corruption, since, by cheating, they serve their highest value, investor return.  Corporations, according to one of these legal thinkers, Daniel Fischel, are “incapable of having social of moral obligations” (214).    It follows, as Fischel writes, that “managers not only may, but should violate the rules when it is profitable to do so” (213).  Fischel served as dean of the University of Chicago Law School.  Officials who do not cheat, therefore, act against their own obligations to the corporation and to themselves.  Gregory Mankiw argued during the Savings and Loan disaster in the 1980s, that, given the lax regulatory atmosphere, chief executives would have acted irrationally if they did not loot their own institutions (213).  Mankiw, a professor of economics at Harvard, served as chair of the Council of Economic Advisors under President George W. Bush.

So, in practice and even in theory, whistleblowers usually get punished, and powerful people break the law with impunity.  Thinking about that situation, and reading example after example, could put one in a dark mood.

Early in American involvement in the war in Afghanistan, American security seized John Walker Lindh, an American citizen who fought on behalf of the Taliban.  In December, 2001, as the Department of Justice worked to prepare a criminal case against Lindh, an attorney for the Professional Responsibility Advisory Office of the Department of Justice, Jesselyn Radack, informed her counterpart at the Terrorism and Violent Crime Section that Lindh had retained an attorney, and that his lawyer should be present whenever he was questioned.  Nonetheless, officers questioned Lindh without his attorney, and, apparently by use of torture, obtained a confession.   When Radack discovered this, she sent email messages explaining that this confession might be inadmissible, and recommended against prosecuting Lindh.

In January, 2002, Attorney General Ashcroft announced legal proceedings against Lindh, explaining that Lindh had not asked for an attorney, and that the government had observed all the rights of the prisoner.  Radack sent further emails, but the government office “lost” these emails, and never submitted them to the court.  Instead, her superiors began proceedings to fire Radack.

Eventually, Radack managed to recover the email messages, and send copies of her emails to the press.  When the copies became public, the Department of Justice dropped nearly all charges against Lindh, but began federal criminal investigations of Radack.

What gave Radack courage to stand up against the might of the Government of the United States of America?

She thought about  the bat mitzvah that she had celebrated when she was thirteen, during which she had spoken of the prophet Jeremiah, whose mouth God touched to encourage him to denounce the idolatry of the people and the greed of the priests. She remembered the Torah portion she had read during this ceremony, from Exodus: Lo ti’eh ahar rabim (“Thou shalt not follow a multitude to do evil”).  “This verse warns not to follow the majority of people blindly for evil purposes, especially to disrupt justice.” she had told the congregation on that day. “I hope that I will always be able to make the right decisions about my actions.” Seventeen years later, she decided to live by these words. “Jewish teachings were always there in the deep recesses of my mind,” she says today. “I’m not sure how much they guided my choices, and how much they simply affirmed what I had already decided to do.”  (488)

So I found one ray of light, one positive note, in this dismal book.

About the Author
Louis Finkelman teaches Literature and Writing at Lawrence Technological University in Southfield, Michigan. He serves as half of the rabbinic team at Congregation Or Chadash in Oak Park, Michigan.
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