“Structurally, corporate voluntary disclosure programs are vulnerable to the now-familiar conflict of interest inherent when an institution is responsible for disclosing its own misconduct. To illustrate, the investigations often are conducted by attorneys whose professional duty is to the client corporation – rather than to the public. The same attorney who interviews whistleblowers and serves as a liaison between the corporation and the government during a voluntary disclosure may later act as counsel for the defense in the event of enforcement action.
As a result, voluntary disclosure programs have failed to serve as an effective substitute for external oversight, and too often serve as a shield for liability.”
“The GAP has identified six basic principles that we believe are needed for any meaningful system of whistleblower protection and corporate and government accountability. Whistleblowers must:
1. Have a legal right to protection against discrimination for challenging illegality or violations of the public trust through lawful disclosures, without having to obtain advance permission, as well as the same protection for refusing to violate the law;
2. Have access to courts in which the decisionmakers have judicial independence from the political process, and be entitled to a jury trial;
3. Have remedies that hold individual harassers personally liable and subject to discipline, so that an employer or supervisor has something to lose by retaliating;
4. Gain access to legal shields for following government or professional codes of ethics;
5. Have the ability to go on the attack against lawlessness by restoring citizen standing to challenge fraud and enforce the law; and
6. Restore substantive and procedural due process rights for all violations of constitutional rights, even when the government asserts a conflict with national security.”