One Man Says No

excerpted from the book

Secrets

The CIA's War at Home

by Angus Mackenzie

University of California Press, 1997, paper

p157

At age fifteen, A. Ernest Fitzgerald followed his fathers footsteps, working as a pattern maker, an exacting craft in the making of precision tools for mass production, in Birmingham, Alabama. His father taught Fitzgerald to work to the closest possible tolerances, produce his products for a reasonable price, and deliver them on time. "Nothing was wasted at my father's shop," he says. With an American Foundryman's scholarship he obtained a bachelor's degree in industrial engineering and took a job as a quality control engineer in an aircraft factory. Later, he started his own consulting business in cost and quality control analysis for the government and for large corporations with military contracts. In I965 the air force gave Fitzgerald a position in procurement cost control for some of its systems, with a mandate to find savings. His boss, the assistant secretary of the air force, gave him a large office on the fifth floor of the Pentagon. He had taken a large cut in pay to work for the government, but, he says, "I thought I could do some good. I thought-before I wised up-that if the top guys knew about waste, they'd want big changes made.

Within a year, Fitzgerald was ready to suggest specific cuts from the Pentagon budget. At a meeting attended by generals, high civilian officials, and defense contractors, Fitzgerald attacked the Pentagon's unscientific system of estimating costs. Contractors who planned costs to be high, he said, were able to bilk the government because the Pentagon lacked facts about the real costs of weapons systems. He pointed out that reducing waste in the procurement system could free up money to replace old planes then in the air over Vietnam.

Many of Fitzgerald's listeners approved and asked for transcripts of his talk. But before he was permitted to distribute copies, his superiors told him he must submit the speech to a security review. Three weeks passed, and his transcript was not returned. Finally, Director of Security Review Charles Hinckle wrote that Fitzgerald's speech had been "caustic" and "inappropriate," and on September 29, I966, the Office of the Secretary of Defense suppressed the speech and ordered it to be neither printed nor distributed.

Security review officials told Fitzgerald that his negative comments on procurement practices might undermine public confidence in the Defense Department, which in turn would undermine security. From a security officer, Fitzgerald got a copy of his speech with the reviewers' comments on it. Fitzgerald discovered that among other things the reviewers had objected to his comments on scientific method. Among the material censored were quotes he used from Francis Bacon, the father of the scientific method. "It had become painfully obvious that my stand on cost control was not supported by the powers in the Pentagon," Fitzgerald concluded.

In the interim, as part of his air force duties, Fitzgerald visited the Lockheed plant in Marietta, Georgia, where construction was under way on a fleet of fifty-eight giant C-5A transport planes. Each C-5A was nearly as long as a football field, more a flying freight train than an airplane. They were built to haul two M-I tanks over the ocean at 552 miles per hour and land on twenty-eight tires.

But the multibillion-dollar project was in serious financial difficulty. On his second visit, after inspecting the partially finished planes encased by scaffolding, Fitzgerald calculated that the cost to the Pentagon would run more than $2 billion over the contract. Two years later, when the matter of C-5A cost overruns reached Congress, Senator William Proxmire of Wisconsin, chairman of a joint economic committee, summoned Fitzgerald to testify. Proxmire planned to dispute testimony by the assistant secretary of the air force for research and development, who had told Congress that costs of the C-5As were normal. Proxmire asked Fitzgerald to submit 100 copies of a prepared statement twenty-four hours in advance of testifying, as is usual for such appearances.

But Fitzgerald appeared without a prepared statement and gave this explanation: "Mr. Chairman, I was directed not to prepare a statement directly by my immediate superior, Mr. [Thomas H.] Nielsen, the assistant secretary of the air force for financial management."

"Well, this is very troublesome to this committee, very disturbing," Proxmire replied. "Here is a man who is well qualified, has information of importance to Congress, nothing classified in it. He is directed by the air force not to prepare a statement for the committee . . . did Secretary of Defense Clark Clifford provide instructions to muzzle this witness?"

An air force officer who accompanied Fitzgerald tried to dodge that question, asserting that Fitzgerald was free to respond to the senator's inquiries. Proxmire then launched into his questions, and Fitzgerald began to make public his findings about the C-5A cost overruns, setting the total at more than $2 billion. "The current Lockheed program . . . could exceed its target cost by 100 percent," he said. He then described fundamental problems with the Pentagon's procurement system. When Fitzgerald finished his testimony, reporters swarmed around him, seeking more answers. Flashbulbs popped. "I knew then that I was in the soup," he recalls.

The Pentagon immediately removed Fitzgerald from any cost control responsibilities. Then, in January I969-after Frank Weitzel, the assistant comptroller general of the General Accounting Office, told Proxmire that the air force had refused to provide the General Accounting Office with the current C-5A estimates-Fitzgerald was again called to testify.

Proxmire began, "I understand since your testimony in November you have lost your career tenure, is that true?"

"I certainly do not have it today," Fitzgerald responded.

Proxmire asked Fitzgerald if his job loss was the result of his unauthorized disclosures.

"In a sense, Mr. Chairman, it was. I had not cleared the remarks I made with the secretary of the navy."

Proxmire then asked if all Fitzgerald had done was to respond to congressional questions-a key point in the congressional battle with the executive branch for information about expenditures.

"That is correct, and I would answer again," Fitzgerald said.

"Well, Mr. Fitzgerald . . . you have been an excellent witness, and if there was a computer into which you could put courage and integrity, you certainly would be promoted rather than have your status in such serious and unfortunate jeopardy." Proxmire went on to chew out the air force and issue a warning intended to protect Fitzgerald. "The air force can say, and the armed services can say that their officials are free to speak any time and tell Congress the facts as they see them. But it is going to be very hard for the public and the Congress to accept that if there is any further disciplinary action against you, Mr. Fitzgerald.''

Approximately six weeks later, the Pentagon assigned Fitzgerald to a new job. He and his two cost-accounting experts were to review the construction of a bowling alley and mess hall in Thailand. Fitzgerald later recalled, "My civilian assistant found that the bowling alley project was greatly overrun (about 300 percent).... [W]e lost that job, too." About two months later, the subject of cost overruns hit the front pages. On December 30, I969, an Associated Press story ran in the New York Times: "Major U.S. Weapons Systems Costing $2 Billion More Than Original Estimates."

Fitzgerald expected to return to making money in the private sector. Although he had sold his interest in his old consulting firm, he contacted the firm's attorney, Alex Keyes, a well-connected New Yorker who had previously helped Fitzgerald by referring many highpowered corporate clients to him. "We had lunch at the Yale Club in New York," Fitzgerald recounted. "He said he'd ask around for me. When I didn't hear from him, I called him. He gave me some advice. 'Open a service station,' he said. 'You're dead on the Street [Wall Street].' " Another old friend, Dick Burtner of Goodyear Aerospace, told Fitzgerald he would loan him money, but " 'if I hire you I'll never get Pentagon business.' "

Unable to find work in his profession, Fitzgerald felt he had little choice but to file a lawsuit demanding to have his old Pentagon job back. At the same time he wrote a book, published in I972, titled High Priests of Waste. It detailed how military contractors plunder the public treasury, how they keep auditors from finding out about high profits and low quality, and how the waste is hidden behind a veil of military secrecy in the name of national security.

In September I973 a federal judge ordered the air force to reinstate Fitzgerald, but his claims for back salary and damages were to be locked up by legal battles for years. In November I98I, when the case finally went before the U.S. Supreme Court, one of the legal issues was whether the executive branch enjoyed absolute immunity from suits arising from the violation of someone's civil rights.

While Fitzgerald's suit was pending, Morton Halperin was suing former President Nixon for wiretaps illegally placed on his home while Halperin served on the National Security Council staff. Halperin was afraid that the Supreme Court would rule in Fitzgerald's case that Nixon enjoyed absolute immunity, so Halperin intervened. Halperin's lawyer, Mark Lynch, told the court that "civil service employees, such as Fitzgerald, who are fired in alleged retaliation for the exercise of their First Amendment rights, have no cause of action under the First Amendment in view of the special relationship between the federal government and its employees." Lynch also wrote in a motion for Halperin that "the speech for which Fitzgerald was allegedly fired is not protected by the First Amendment." This position by Halperin and Lynch presaged their future stances as civil libertarians: government employees are not protected by the First Amendment.

In May I984, Secretary of the Air Force Verne Orr assigned Fitzgerald to assist Chairman John D. Dingell, the Michigan Democrat who headed the House Energy and Commerce Committee, to help investigate stock manipulations related to the awarding of multibillion dollar defense contracts. Resuming his role as a cost-cutting detective, Fitzgerald traveled to the Hughes Aircraft plant in Tucson, Arizona, where he was informed that in a tear-down inspection, made in conjunction with an inspection of the air force's Maverick system, the navy Phoenix missile guidance system had passed all normal quality controls. On probing further, however, he discovered there were 2,578 defects, of which I06 were considered extremely serious. The guidance system is a critical part of the air-launched, radar-guided, solid propellant rocket. But the Pentagon generals did little to fix the problems, and, once again, Fitzgerald decided that his only recourse was to make a public disclosure. As a result, the plant was forced to shut down for six months.

Over the years, Fitzgerald had lost his dark lean look and was now the picture of a bureaucrat, with gray trousers, gray glasses, and gray close-cropped hair. Even his I985 Toyota GTS, a present from his wife and kids, was gray. On May I3, I987, he arrived at his office, a much smaller one than he used to command, and walked past the bank of five gray file cabinets containing classified information. Each was secured by a Diebold dial combination lock and had a small paper form affixed to the front of its drawers on which was recorded the times of opening and closing. At 9:20 A.M. Captain David Price walked into Fitzgerald's office. "Mr. Fitzgerald," said Captain Price, "I have a nondisclosure form for you to sign. You must sign it or your security clearance will be revoked." He handed Fitzgerald an envelope, turned, and walked out of the office.

Fitzgerald took a deep breath. His security clearance was necessary for him to do his job: he needed access to the classified papers in his office cabinets. The sheet of paper in Captain Price's envelope was titled "Classified Information Nondisclosure Agreement"-Standard Form I89. The sheet was filled with thirteen paragraphs and at the top was a space for his name: "An agreement between [space] and the United States." Paragraph one defined what was to be kept secret- "information that is classified or is classifiable." It was clear to Fitzgerald that any information is classifiable, especially if it is embarrassing to the Pentagon. He might give unclassified information to Congress, and then the generals could classify it.

Fitzgerald came to the third paragraph, an agreement never to divulge any classified information without "written authorization." Instantly, Fitzgerald realized this would mean he could not divulge information to Congress about waste, fraud, and abuse if the Pentagon classified that information as secret. He recalled that his first disclosures about the C-5A cost overruns had been "unauthorized." He had talked to Congress without receiving written permission. That data in his testimony had not been classified. But were they classifiable?

Fitzgerald kept reading. The contract forbade "direct or indirect" disclosure. What if he told Congressman Dingell about classified data and Dingell released the information to the public? Under Form I89, Fitzgerald would be liable for this disclosure by the chairman of a House committee. And the scope of the coverage was vast. Paragraph seven said, "I understand that all information to which I may obtain access by signing this agreement is now and will forever remain the property of the United States Government." Fitzgerald's eyebrows shot up. "All information?" he thought.

Fitzgerald realized that if he signed the form, he would be greatly restricted from informing Congress about cost overruns. "No way am I going to sign this and be silenced for life," he told his assistant, Betty Dudka. The outlook was bleak. Who would help? The ACLU had capitulated on Form I89. The government worker unions had been all but silent on the issue. Liberals in Congress had been less than effective. The federal courts had bowed to national security claims and long ago ruled that secrecy contracts were binding. The news media had also shown no inclination to fight against Form I89. "I'm alone on this one," Fitzgerald thought, "but I'll be damned if I'm just going to let the Pentagon shut me up without a fight."

Fitzgerald picked up the phone and called one of Capitol Hill's most able investigators, Peter Stockton, an aide to Dingell. Fitzgerald explained that if he signed Form I89, he would be effectively removed from his role as a congressional investigator. On the other hand, if he failed to sign it, he would be terminated from his Pentagon job. Stockton quickly arranged to have the two of them meet with Steven Garfinkel of the Information Security Oversight Office. Garfinkel explained that Form I89 had been drawn up in response to White House irritation over leaks to the press. Fitzgerald made a mental note-Garfinkel was referring to leaks of embarrassing information rather than leaks of classified information.

Stockton and Fitzgerald pressed Garfinkel. "What does the term classifiable mean? According to Fitzgerald, Garfinkel responded, "It could mean anything." He tried to clarify his position. Classifiable meant any data that would be understood to need classification and hadn't been classified through an oversight. Stockton and Fitzgerald grew more concerned after this vague answer and asked Garfinkel if he would remove the term "classifiable" from the nondisclosure contract before Fitzgerald signed it. Garfinkel replied that he could not.

Fitzgerald felt insulted. He had never been accused of divulging classified information about weapons systems-or anything else. But Garfinkel brushed aside his arguments, boasting that the director of the Washington office of the ACLU had approved Form I89. Why should one man be exempt when so many others had signed?

After Garfinkel left the congressional offices, Stockton and Fitzgerald composed a letter for Dingell to send to William D. Ford, the chairman of the House Committee on Post Office and Civil Service, asking him to investigate. "We wanted to make sure that these agreements . . . would not inhibit the proper and timely flow of information to the Congress," the letter said.

Fitzgerald returned to his Pentagon office, his resolve stronger than ever. "I don't intend to sign it, particularly after talking to Garfinkel. I've talked to my wife and my lawyer and I've prepared for the worst. I can't conceive of any conditions under which I'll sign that damn form," Fitzgerald vowed to Dudka in his Alabama drawl.

While being pestered for his signature on an almost daily basis, Fitzgerald widened his effort to gain congressional support. He phoned and visited the staff of Gerry Sikorski, a young Minnesota Democrat who chaired the House Post Office and Civil Service Subcommittee on Human Resources, which had jurisdiction over government workers. Sikorski agreed to write a letter on Fitzgerald's behalf, which was sent to Frank Carlucci, Reagan's new National Security Adviser. The letter roundly criticized Form I89 for its "ambiguities and inconsistencies, as well as vague and questionable terms which coercively impose inescapable liability on federal employees in violation of their rights." Sikorski's letter also raised a question of whether Form I89 violates laws that prohibit interfering with the rights of federal employees to furnish information to both houses of Congress. "Standard Form I89 tramples on the right of federal employees and the First Amendment" and is "a new thinly veiled attempt to impose prepublication review . . . on federal employees." Sikorski concluded by requesting that Carlucci halt the use of the form.

On July z the comptroller of the air force, Lieutenant General Claudius E. Watts III, formally issued written orders telling Fitzgerald to sign Form I89 within thirty days or face the loss of his security clearance and his job. That was followed on July 7 by a policy statement from ACLU attorney Allan Adler announcing that "the ACLU finds no inherent constitutional barrier" to an agreement that "imposes an obligation not to disclose ... information without authorization." While Adler recommended that Form I89 be rewritten to eliminate vague language, he seemed to undermine Fitzgerald's lobbying effort on Capitol Hill. Adler recommended congressional action only "if administrative solutions are not soon forthcoming." Fitzgerald was displeased, but not surprised, that the ACLU refused to join the growing congressional pressure to suspend the secrecy contracts.

As the deadline neared, however, Fitzgerald gained new and powerful allies. Congressman Les Aspin of Wisconsin, Chairman of the House Armed Services Committee, wrote Carlucci, "Compliance with Standard Form I89 should be suspended."

Fitzgerald next received support from Senator Charles E. Grassley of Iowa, a Republican whose rural constituents were suffering serious financial hardship and were outraged at the chronic squandering of tax money by the Pentagon. As a member of the Senate Appropriations Committee, Grassley asked the Congressional Research Service's legal arm to review the relevant law regarding secrecy and disclosure. The service concluded that Form I89 "is arguably in conflict with the language and intent of" the law protecting whistleblowers.

The same day, Watts repeated his order to Fitzgerald to sign Standard Form I89 by the deadline, now about a week away. Fitzgerald began a series of frantic phone calls to congressional offices. Just one day before the deadline another powerful committee chairman, Congressman Jack Brooks, complained about Standard Form I89 in a letter, "Such a contract is incompatible with the First Amendment to the Constitution, regardless of who is asked to sign it."

In the face of this support, the Pentagon allowed the deadline to pass and permitted Fitzgerald to stay on the job, at least for the time being. On August I7, I987, the 200,000-member National Federation of Federal Employees, about 40 percent of whom work in the Department of Defense, sued the government to stop implementation of Form I89. The suit was later joined by the 200,000-member American Federation of Government Employees, as well as the American Foreign Service Association, which chiefly represents State Department employees.

On August 21, Garfinkel issued instructions that, as a temporary accommodation to the lawsuit, no employees would have their security clearances revoked solely for refusing to sign Form I89. However, agencies were to continue asking for signed secrecy contracts from their employees. On the same day, the air force suspended Fitzgerald's deadline for signing and set no new one.

With the lines of battle now drawn between the federal employee unions and the Reagan administration, Congressman Sikorski convened a public hearing on October I5, I987. Sikorski began the hearing by asking, "What waste, what fraud, what incompetence, what malfeasance and misfeasance, what high crimes or misdemeanors would never have seen the healing light of legislative and public scrutiny if federal employees of years past had been forced to contend with such an all-encompassing restriction?" Senator Grassley drove home the point that the administration's intent was to place a blanket of silence over all information generated by the government, and he added that Form I89 would make it easier for the government to "go after" whistle-blowers. Grassley then made a declaration that made the next day's headlines: "Grassley to Civil Servants: Ignore Secrecy Pledge."

Even elected members of Congress had been told to sign secrecy contracts. Brooks reported that the Department of Energy had "recently sent me-and I was probably the wrong one to send it to-a Form I89 non-disclosure contract to sign so that I can have access to a report done by the GAO for the United States Congress." Brooks summed up the lessons he had learned about government secrecy during thirty-four years in Congress. "Most of the classification, in my judgment, is not to keep our enemies from finding out information. It is to keep the American people and the Congress from finding out what in God's world various agencies are doing and how they are throwing away money, wasting it.... They throw away money like dirt, and lie and cheat and hide to keep Congress from finding out, and, for God's sake, they don't want the American people to find out," he fumed.

Following the hearing, Congress approved a rider that outlawed the spread of Form I89 (as well as Form 4I93, the prepublication review contract) and attached it to an appropriations bill. Reagan had to sign the bill by December 22, I987, if he wanted the executive branch to have money. Its language was clear: "No funds appropriated in this or any other Act for fiscal year I988 may be used to implement or enforce the agreements in Standard Form I89 and 4I93 of the Government or any other nondisclosure policy, form or agreement . . . that contains the term 'classifiable' [or] . . . obstructs . . . the rights of any individual to petition or communicate with members of Congress in a secure manner." Congress did not want to be kept ignorant. That meant Fitzgerald had prevented his firing-or so it seemed for a time. "Once in a while," Fitzgerald said with a smile, "we get a little bit done. Even a blind hog finds an acorn.

Secrets - The CIA's War at Home

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