Cianan Brennan: Group ready to stand with whistleblowers

Help is now at hand for whistleblowers in a state of anxiety over whether their

professional judgement will have personal consequences, writes Cianan Brennan

Maurice McCabe is Ireland’s best known whistleblower. He exposed high-ranking Garda corruption in a campaign that lasted 11 years. Picture: Barry Cronin

For those working both privately and publicly in sectors across the spectrum, Ireland’s protected disclosure legislation is designed to aid those who encounter, or believe they have encountered, corruption or malpractice in administration.

But making such a disclosure remains a daunting prospect. Being an effective whistleblower can mean making a commitment that takes over your life.

It could see your world as you know it come crashing down; in a worst case scenario the very machinery of the State could bring pressure to bear on your head. Just ask Maurice McCabe. Who knows if he feels the 11 years he spent fighting the Garda hierarchy were worth it or not.

However, in Irish terms, expertise is now being brought in from afar to help those, who think they’ve seen a dubious activity or action that should be made public, make up their mind how they go about doing so.

WhistleblowerAid Ireland is now officially a thing in this country. The level of take-up it sees for its services will be of great interest to many, not least those who feel, for whatever reason, that some agencies of the State, or corporate entities, are intrinsically corrupt.

The brainchild of 44-year-old Bostonian John Tye, a lawyer formerly employed with the US State Department before turning whistleblower himself, WhistleblowerAid has been in existence stateside for a little over three years.

The concept is relatively simple - the registered charity provides free legal advice for those who believe they have a story that the public needs to hear. Disclosure law is their specialty. Thereafter it’s up to the person in question whether or not they wish to action their complaint.

Preventing unlawfulness lawfully could be the company’s catchphrase.

Its new Irish arm, which has officially gone live without an official launch, is primarily set to focus on wrongdoing, unlawfulness, and malpractice with regard to the Covid-19 pandemic and how it has been handled by the Irish authorities.

“Clearly this is an urgent moment,” Mr Tye says of the coronavirus situation in Ireland. “But if other things come our way we’ll be doing our best to help with them too.”

“We always figured we’d expand internationally, though Ireland is the first country we’ve set up in outside the States,” he says. adding the idea to set up here sprang from “activity in our network in Ireland” with regard to how the virus has been handled in an Irish context.

It’s a bit easier for us to expand in Ireland, people speak English and so it’s a reasonably accessible one.

The group has already been running Covid-19 related adverts across social media here for a couple of weeks. Any communication from the public is handled over secure channels.

For a group that is only just hitting the mainstream here, its contacts with concerned potential clients already number more than 10.

“We’ve spoken to doctors, Government officials, nurses, healthcare assistants, and we’re definitely getting interesting questions,” Mr Tye says.

The non-profit has yet to sign a retainer with any Irish client so details of what it’s been hearing about cannot be published. Suffice to say some of what they’ve heard is more than a little alarming however - ‘profiteering’ is one word that pops up repeatedly in our conversation.

Matthew Kenny, a partner with Dublin-based firm O’Sullivan Kenny Solicitors, is the man on the ground for WhistleblowerAid in its Irish context.

He vets all submissions from the public before they’re brought to the notice of the Americans. He says his focus is to “maintain the confidence of those who contact them that they’re getting impartial legal advice that’s in their best interests, because not everyone who comes to us will necessarily become a whistleblower”.

His particular interest is preventing someone making a protected disclosure form experiencing retaliation on the part of the State.

“Legislation outlaws retaliation and someone can’t be sued. However, that’s just the law. As we all know, a protected disclosure is fraught with difficulty,” Mr Kenny says.

Not that any wrongdoing in an Irish context is likely to rival one of the most recent cases the agency handled in the US in scale - that of adviser to the whistleblower behind the disclosure that saw President Donald Trump recently impeached and subsequently acquitted on partisan lines in the US Senate.

Mr Tye is at pains to stress he himself had no personal involvement with that client, the case being handled by his partners at WhistleblowerAid Mark Zaid - who in a previous life represented Mr Tye himself in his successful whistleblower action against the US National Security Agency (NSA) - and Andrew Bakaj.

He says the whistleblower in question, who Mr Trump himself repeatedly called on to name themselves, “is still working for a Government intelligence agency”. Perhaps more chilling is the several months of armed bodyguard surveillance which WhistleblowerAid (which is funded by donation) had to fund for the protection of Mr Zaid after he had faced death threats (a Michigan man is now facing federal charges for making such a threat, after emailing Mr Zaid to say “all traitors must die” after Mr Trump read some of his tweets aloud at a rally).

Government retaliation in an American context can be aggressive and intimidating.

However, in three years of operation, under 20 of the thousands of people who have contacted WhistleblowerAid in American saw their cases taken on. Generally, in that jurisdiction, it’s a case of quality over quantity. “Probably 95% of what we see are not viable complaints for various reasons. We are a small organisation,” Mr Tye says. He adds however that he doesn’t expect that to be the case with their Irish arm.

So what would represent success for the firm in Ireland?

Mr Kenny, who describes himself as “surprisingly naturally conservative”, says achievement for WhistleblowerAid Ireland in his view would comprise “where there has been misconduct, if we can assist someone in lawfully making a disclosure, then that is a success”.

He holds no truck for exposing dubious behaviour in an illegal fashion.

Breaking the law is always a bad thing, I don’t believe it ever works.

“We have an Act in place and it’s there for a reason, but the difference with WhistleblowerAid is that the people who come to us don’t have to pay.”

“I consider myself to be one of the lucky ones because I had the background for this,” Mr Tye says of his own whistleblowing experience - which saw him publish his complaint, that the NSA was collecting and searching US citizens’ emails, phone calls and online communications without a warrant, legally in the American media.

“I had the knowledge and the resources to find the help that I needed, but the importance (of whistleblowing) is growing every single day,” he says.

“I realised there was this need, and that’s why we launched this. I’m proud of what we’ve achieved.”