Robert F. Kennedy: Whistleblower Champion

June 25, 2018
“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’s “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 in foreign policy and national security, and the crying need for “radical inclusion,” the latter promoted by the most prescient in U.S. leadership 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 corruptor 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 the return 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 judgments and 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 in 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 $400 hammers 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 were 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 … that guided our nation in the past,” a “spirit of adventure, a will to fight what is evil, and a desire to serve.”

Patricia A. “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-Putins—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 needed post-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.

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