The Whistleblower Statute Prepared for the Organization of American States and the Global Legal Revolution Protecting Whistleblowers
Vaughn, Robert G., Devine, Thomas, Henderson, Keith, The George Washington International Law Review
Seventy-three seconds after its launch on January 28, 1986, the space shuttle Challenger exploded, destroying the shuttle and killing the crew.1 Among the crew was Christa McAuliffe, a school teacher who had been selected for the shuttle mission. Millions of people watched the explosion either at Cape Canaveral or on television. As the explosion was played again and again, these images of Challenger became the visual manifestation of heart-rending disaster. Through the testimony of a whistleblower appearing before a specially appointed presidential commission, the public soon learned that the evening before the launch, engineers for a National Aeronautics and Space Administration (NASA) contractor, Morton Thiokol, had pleaded with NASA officials not to launch the shuttle, predicting the failure that caused the explosion.2 These engineers were overruled by the management of Morton Thiokol, a decision accepted by NASA officials anxious to launch the shuttle.3 Subsequently, one of these engineers ensured that the presidential commission and Congress received an accurate account of the decision to launch. For this candor, the engineer faced retaliation from officials at Morton Thiokol.4 Images of the destruction of Challenger also came to represent preventable disaster and the importance of courageous whistleblowers to the discovery of the truth and to the avoidance of other calamities.
The Challenger tragedy opened an important stage in whistleblower protection in the United States. Within the decade following that disaster, not only had Congress enacted the Whistleblower Protection Act of 1989,5 significantly strengthening whistleblower protections for federal employees, but state legislatures also passed hundreds of whistleblower statutes protecting both public and private sector employees.6 The Challenger disaster provides a powerful icon for the following decade and a half in which many countries and international bodies adopted whistleblower laws. In examining a draft law to implement one of these international treaties, this article seeks to review and evaluate this post-Challenger legal revolution.
On March 29, 1996, in a plenary session, the Organization of American States (OAS) adopted the Inter-American Convention Against Corruption.7 The Convention created a comprehensive anti-corruption treaty for the Western Hemisphere. Article III, section 8 of the Convention protects "public servants and private citizens who, in good faith, report acts of corruption."8 This important section foreshadowed similar provisions in the European Union's Civil and Criminal Conventions on Corruption.9
In 2000 the Office of Legal Cooperation of the Organization of American States (OAS) contracted with several organizations to draft model statutes implementing whistleblower protection as well as other provisions of the Convention for five Central American countries.10 The authors of this article faced the task of drafting the model whistleblower statute. In fall 2000 this group submitted a draft of a model whistleblower law to the Office of Legal Cooperation.11 On November 13-15, 2000, the Office of Legal Cooperation convened workshops in Antigua, Guatemala to perfect language and seek a consensus for the draft laws, including the whistleblower protection statute. Participants at the workshop on the whistleblower law included legal experts from Central America, government officials, and representatives of non-governmental organizations. Although the whistleblower proposal gained a consensus, participants questioned whether existing judicial and social systems could accommodate this major reform without the adoption of other reforms. In particular, these experts expressed concerns regarding the independence of the judiciary, the effectiveness of ombudsmen in the region, the broad authority of the executive in many Central American countries, and the risks of physical harm to whistleblowers. Participants also emphasized the connections among the model laws discussed at these workshops. …