| GIANTKILLERS The Team and the Law that Help Whistle-blowers Recover America's Stolen Billions Henry Scammell New York: Atlantic Monthly Press, 2004 |
Rating: 5.0 High |
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| ISBN-13 978-0-87113-909-2 | ||||
| ISBN 0-87113-909-X | 306p. | HC | $25.00 | |
This book's Preface consists of the following three paragraphs:
In 1986, with government contractors stealing an estimated 10 percent of the total federal budget, Congress passed a newly strengthened anticorruption law. Ordinary citizens who knew of fraud could file lawsuits on behalf of the United States to recover money stolen from the public treasury, and they would share in the result. In the years since, despite massive institutional resistance, the False Claims Act has emerged as one of the nation's most potent weapons against corporate greed. This is the story of that law: Why it was needed, how it works, who brought it back to life, how it has survived the many attempts to kill it, and what it has accomplished. Above all, it is the story of how a brave and endangered species, the corporate whistle-blower, at long last has earned recognition—and sometimes enormous rewards—as a new breed of American hero. |
This is a succinct and accurate description.
Corrupt profiteering among contractors providing weapons and other war materiel to the federal government runs like a rotten thread through American history: Rifles that didn't fire; gunpowder adulterated with sawdust; uniforms that fell to tatters when it rained. Produced during the Civil War, the latter were made from a glue-based fabric known as "shoddy" that gave its name to any and all substandard merchandise.
Laws to combat such corruption have an even more remote date. Indeed, their venerable history reaches back to the thirteenth-century reign of Henry III and the legendary Robin Hood,1 who stole some of the plunder from his fellow noblemen and restored it to the poor. The law came to be known by the beginning of its Latin description: qui tam pro domino rege quam pro se ipso in hac parte sequitor — "Who brings an action for the king brings it for himself" (page 39). Incensed by the flagrant war profiteering described above, Congress passed the False Claims Act during the Civil War. It too is informally known as qui tam.
This book documents how the qui tam law was revised and strengthened in 1986, against strong opposition from the defense industry and even the Justice Department, which felt its role would be diminished by the provision allowing private citizens to bring suit against companies defrauding the public. Iowa Republican Senator Charles Grassley championed the revised law through this difficult passage. After Congress passed a bill with real teeth, challenges to its constitutionality continued. One notable example occurred in 1993, when Boeing filed a motion before a Los Angeles court charging that qui tam unconstitutionally violated the separation of powers. This same doctrine had been promulgated by William Barr, then heading DOJ's Office of Legal Counsel, in 1989. Before leaving the presidency in 1991, George H. W. Bush had appointed Barr attorney general. The Justice Department, therefore, did nothing to defend the challenged law. Boeing was soon joined by Hughes, Lockheed, Rockwell, Litton, Northrop, and the Aerospace Industries Association. Predictably, Boeing et al appealed when the decision went against them. When the Ninth Circuit Court of Appeals upheld the lower court's ruling,2 the plaintiffs appealed to the Supreme Court. It refused to hear the case, affording qui tam a reprieve — but a temporary one, since no final decision on constitutionality had been rendered.
Just as predictably, these industry giants continued to lobby Congress to weaken the law's provisions. In this effort, defense was joined by the equally formidable health-care industry, since both had an interest in abolishing any measure that could force them to account for their lapses. The constitutionality question finally reached the Supreme Court in 1999, when it agreed to review a lawsuit brought against the Vermont Agency of Natural Resources. The SCOTUS ruled that, because of sovereign immunity, state agencies cannot be sued by individuals. However, it upheld the far more important provision of private citizens' right to bring qui tam suits — which the Justices themselves pulled into the case — based on its long history in English common law and the fact that its incorporation into statutes enacted by the First Continental Congress indicated "Original Intent".3
Giantkillers presents its information in a very readable series of case studies, following several whistle-blowers in their decisions to go public and the risky and arduous battles that ensued. Thanks to the strength of the qui tam law and the dedicated assistance of public-spirited attorneys, most ultimately turned out well. But such an outcome is never assured. As Senator Grassley and Congressman Howard Berman observe in an Afterword, there exists "a basic ambivalence in human nature about the age-old contest between integrity and greed." Henry Scammell's account clearly shows why laws such as the False Claims Act are so vital as buttresses for integrity.
Although some of the episodes are hard to follow, that is due to the complexity of the cases being described, not to any defect in Henry Scammell's research or writing. There are only a few typographical errors. Appendices present the full text of the False Claims Act, as amended in 1986, and some useful statistics on qui tam cases. The book's major shortcoming is that it has no index. This lack diminishes its worth as a reference on the subject. I nevertheless recommend it for that purpose. It is as well an excellent tutorial on recently uncovered cases of medical- or defense-industry "waste, fraud and abuse".
One thing "threw" me as I read Chapter One, The Last Man Standing. It recounts the experience of one veteran, infantry sergeant Emil Stache, in the Parrot's Beak region of Cambodia on 12 April 1969. I thought I was reading the wrong book. It was only toward the end of the book that I understood this was included to establish Stache's grit and persistence. Also, a word of warning: This chapter contains vividly graphic descriptions of combat wounds; it calls for a strong stomach.
To contact Chris Winter, send email to this address.