A biting February wind was blowing through Battery Park City when Diane Kleiman returned home one evening after a long day at work. Kleiman, a rookie special agent for U.S. Customs who’d been at JFK only a month, had barely hung up her coat when she was beeped to come back to the airport. Two Haitian men had been stopped trying to leave the country with what an inspector told her was $750,000 in cash wrapped in newspaper and aluminum foil and stuffed inside their suitcases. For Kleiman, a former Queens prosecutor who had traded her conservative suits and leather briefcase for a badge and a gun, it would be her first opportunity at JFK to handle a real case.
By the time Kleiman reached the airport, the investigation was well under way, with the suspects already fingerprinted and in the process of being interrogated. Walking through the bland, low-slung building, Kleiman saw one of the other agents on the case alone in a room with the money. “He was violating procedure, so I volunteered to stay with him,” she says. “But he got really hostile, so I walked away.”
Then a surprising thing happened: When it came time to do the paperwork on the seizure, she says, the $750,000 had somehow shrunk to $452,000. She reported this promptly to her boss, group supervisor Thomas Flood. His response was even more surprising: “Shut up and do what you’re told,” she claims he said to her.
According to Kleiman, Flood went on to explain that the final, “official” count was the only one that mattered, not the one done at the scene by the inspectors who made the stop. And when the ROI (report of investigation) was written, she says, he forced her to record $496,000 as the unofficial count at the time of the seizure, and $452,000 as the final tally. He told her nobody would care about a $44,000 discrepancy. He was right. No one ever asked about it.
In the days following, Kleiman says, she began to be frozen out. “Agent Flood was angry that I tried to make an issue of the cash,” Kleiman says now. “So he ordered everyone in the group, the financial-investigations unit, to stop talking to me.”
Still, there was plenty of opportunity to observe. Kleiman saw what she felt was a pattern of incompetence and outright theft by agents. More alarming, especially in hindsight, were critical security lapses at the airport. Kleiman’s most serious charge was that countless people, including minimum-wage employees who’d probably never had a background check and were sometimes even in this country illegally, had unfettered access to the planes while they were being cleaned and refueled between flights. Once they got on the ramps—the supposedly restricted area where the planes sit parked at the gates—baggage handlers, maintenance workers, food-service employees, and ground personnel all had unmolested access to the aircraft. They could walk onto a plane, hide a weapon or place a bomb somewhere, and walk off without being questioned.
Access to the ramps requires only an I.D. card shown at one of the checkpoints. No metal detectors, no personal searches, no questions asked. And the I.D. cards were often issued to employees of outside contractors who made their own decisions about whether to go to the trouble and expense of background checks.
When she reported these lapses to Flood, she was told she needed to learn to be a team player. “ ‘Otherwise,’ ” she says he boldly told her, “ ‘your life at this agency will be miserable and very short.’ ”
Kleiman quickly found out her boss wasn’t kidding. After five months, she was transferred to a different unit at JFK. Then, in June 1999, she was called to a meeting with Marvin Walker, the supervisor in charge of all Customs agents at JFK. She was asked to lock up her gun before she went into his office.
Walker wasted no time on pleasantries when Kleiman sat down. Bluntly, he asked her to resign. He told her that if she complied, they would make no effort to retaliate against her. When Kleiman refused, Walker spent 45 minutes trying to change her mind. Finally, he fired her—giving her ten minutes to clean out her desk and leave the building. The last words she remembers hearing Walker say were “You’ll never even collect unemployment.”
Diane Kleiman is an intense, 42-year-old woman with flaming-red hair. And, as whistleblowers often are, she’s an inconvenient person. She’s high-strung. She’s aggressive. She repeats herself. She can be exhausting. You wonder how you’d behave if you were her boss—which is what makes her case so complicated.
Before arriving at the Customs department, Kleiman had worked on Wall Street, done stints at the Immigration and Naturalization Service, the Bureau of Alcohol, Tobacco and Firearms, and had volunteered for Barry Scheck’s Innocence Project. Most recently, she’d spent six years as an assistant district attorney in Queens.
But in the nearly four years since she was fired from Customs, she has not worked a single day. Every job possibility she has had has blown up, she claims, as soon as U.S. Customs was called for a reference.
Kleiman sees her unemployment as the purgatory of the whistleblower. “I was always taught that if you do the right thing, you’ll be okay,” she says. “Well, not only was I punished for it while I was at Customs, but it followed me after I left. My supervisors promised they would ruin my life, and that’s exactly what they’ve done.”
At first, she was so depressed she had trouble sleeping and would sometimes spend days in her pajamas just lying in bed in her apartment. She filed discrimination charges with the Treasury Department’s equal-employment-opportunity commission, but the investigation dragged on for several years—such cases often do. Her financial problems got worse and worse. And last fall, she finally filed a lawsuit in federal court. Since so much of the case took place behind closed doors and it’s essentially a he-said-she-said kind of dispute, it is her credibility, as much as that of the Customs Service, that is on trial.
“The agency’s strategy is to drag this kind of thing out, put the person through hell, and destroy them financially,” says Mark Conrad, a veteran of 27 years with Customs, including a stint as head of internal affairs for nine states. Conrad now teaches college and works part-time as a consultant for Ron Tonkin, Kleiman’s Houston-based attorney. “Very few people have the stamina to stick it out. And the agency’s attitude is, in the end, ‘The worst that will happen is we’ll have to write a check.’ ”
In this case, Kleiman has stamina that borders on obsession. She thinks she has something more as well: a smoking gun that demonstrates a cover-up at Customs. And if Kleiman’s charges about critical security problems are true, even after September 11, the impact of her whistleblowing may result in a federal investigation.
Kleiman knew on her first day at JFK that she had a problem. Having completed a five-month training course in Glynco, Georgia, that included extensive work in surveillance, self-defense, and shooting, she was thrilled to actually get down to work. Her good feelings quickly began to fade, however, when she was led to a small, dark office for a meeting with her new supervisor. “ ‘Customs is like the Irish mafia,’ ” she claims Flood, a 25-year agency veteran, told her. “ ‘Our form of affirmative action is hiring an Italian, so understand what your place is in this agency.’ ” He made it clear, she charges, that she would never really be one of them. That because she was a Jew, a woman, and a former prosecutor, they would never be able to trust her.
This began what Kleiman claims was a relentless, daily barrage of sexual harassment (“You need to get laid”), anti-Semitic invective (“Jew bitch,” “JAP”), and general abuse. Her desk, the supervisor told her, would be in “the ghetto,” an out-of-the-way corner where the two other Jewish agents sat, and where he said he put them together so he could “keep an eye on them.”
Kleiman’s charges are so outrageous that they strain credulity—and indeed, they seem to have been dismissed as unprovable by a number of agencies she’s appealed to. But they have been corroborated by at least one former colleague, Brian Aryai, who worked at Customs for more than a decade. Aryai said in an EEO deposition that he had known Flood for about ten years, and that on many occasions he had heard him make “statements of racist and discriminatory nature against Jews, Arabs, Iranians, African-Americans, Italians, Hispanics, and Asians.” He even said in his deposition that Flood regularly referred to Marvin Walker, the man in charge of all Customs agents at JFK, as “the nigger.”
In addition to her problems with Flood, Kleiman says, the agent designated to train her refused to deal with her. “He would put his hand in my face,” Kleiman says, “and say, ‘Talk to the hand, because I’m not talking to you today and I’m not gonna waste my time training a woman.’ ” He indicated, she claims, that he knew she wouldn’t be with the agency long. After all, “her people” only worked where they could make lots of money. There was a lively office pool based on how long she would last.
Things became even more tense, says Kleiman, when she went to Flood to report security lapses. “The things I was seeing were so critical to airport security,” she says, “that there was no way I could keep quiet. I got lost one day driving around a highly restricted area in an unmarked vehicle, and a passing Port Authority police car didn’t even stop me. They waved. How could you not report that?”
Because she would not play ball, Kleiman alleges, she was isolated from the rest of her unit. Her cases were taken away. Almost no one talked to her. After several problems with her government car—two blowouts, exhaust leaking into the passenger compartment making her sick—she was convinced that the vehicle had been tampered with. She was so spooked she started sleeping with her loaded gun.
This claim, too, has an almost unbelievable ring, but there is evidence that this was more than paranoia on her part. Aryai testified in his deposition that Flood came to him regarding repair work on Kleiman’s government car: “Mr. Flood asked that no repairs be authorized for her vehicle. Mr. Flood stated: ‘I want to make that whore’s life miserable. Fuck her; let her suffer in that car.’ ”
Aryai, who was working on car-repair requests at the time, testified he told Flood his request was not legitimate and constituted harassment. Aryai alleged that Flood then said, “We will see about this. I guess you like that jap. Is she spreading her legs for you?”
The louder Kleiman talked about the problems, the more extreme were Flood’s attempts to muzzle her. She says he even threatened her mother. It was like something from a bad B-movie. “ ‘I know your mother lives alone,’ ” she says he told her. “ ‘Bad things sometimes happen to old women who live alone.’ ”
That threat, according to Kleiman, was the result of the biggest case she handled in her tenure at Customs. While working on the currency case involving the Haitians, she began talking to a DEA agent in Florida to gather information. He explained how various smuggling schemes worked and told her about an ongoing drug scam that involved airline employees. Basically, a drug mule would be on a flight with an airline employee seated close to him. They’d pick flights that came in at odd hours and use outer gates at the airport.
When the plane landed, the employee would squire the drug mule off the plane and then use a key to open a locked exit door in a “sterile”—inaccessible—corridor, enabling the men to get into the main part of the terminal without having to go through Customs. The DEA agent told Kleiman to put a watch on the computer for a particular guy he believed had been doing this.
Several weeks later, Kleiman got a call from an INS employee saying there had been a hit on her guy. He was scheduled to arrive at Miami airport on American Airlines. He was grabbed and searched, but no drugs were found. Kleiman, however, didn’t leave it there. She pulled his travel records and saw a pattern: He was traveling between Haiti, Miami, and New York every few weeks. She left the flag on him in the computer system.
“I was always taught that if you do the right thing, you’ll be okay,” says Kleiman. But “my supervisors promised they would ruin my life, and that’s what they’ve done.”
It took only three weeks for Kleiman to get another call that he was traveling again. This time, he was coming into JFK. She instructed a Customs inspector—one of the uniformed people who open and check bags—to go onto the plane and grab him there. Sure enough, he had 46.2 pounds of coke in his bags, and there was an American Airlines employee seated right behind him with a key to the airport exit doors.
“This was a really big deal,” Kleiman says. “I was a new agent and I’d made this big arrest. And we got not only the drug smuggler but an employee involved in an internal conspiracy as well.”
Her joy, however, was short-lived. First, she claims, her supervisors let the American Airlines employee go. They told her they didn’t have enough to connect him to the smuggler. But that was only the beginning. She also says they wanted her report to indicate that this was a random arrest, that she had no prior knowledge of the smuggling method and had done no investigative work.
And, most important, according to Kleiman’s account, her supervisors wanted no mention that she had worked in any way with a DEA agent. In addition, there was to be no mention of the fact that when questioned, the smuggler had said he brought drugs into the country using the same means on a number of previous occasions.
All of the omissions were to prevent Customs from looking bad, from being embarrassed. If the record showed this kind of smuggling was happening regularly, it would look like Customs wasn’t getting the job done. And they certainly didn’t want it to look as though they needed the DEA’s help to catch a smuggler.
Kleiman says she was asked not only to change her reports but to give false testimony before a grand jury as well. She refused on both counts. Three days after she made the bust, she says, an intoxicated Agent Flood called her at home at a little before ten o’clock at night. After screaming obscenities, Kleiman says, Flood told her he was taking the case away from her.
“He told me I shouldn’t speak to anyone about the case, and if I did,” she charges, “something bad would happen to me. He then told me he’d speak to me in the office.”
The next day, she watched as all of her notes and case reports were shredded by another agent. Then he redid them. The day after that, she was called into a meeting with Flood. “ ‘Diane, you just don’t get it,’ ” she claims he said. “ ‘We’re not gonna let some junior Jew bitch agent take credit for such a big case.’ ” To persuade her to cooperate, she says, the threat was made against her mother.
After the imbroglio over the drug bust, Kleiman says, she approached Marvin Walker, the “big boss,” in a hallway and told him what was happening. She claims he refused to listen, and when she made repeated formal requests with his secretary to get a meeting, she never heard back. In his EEO deposition, Walker says that although he knew there were problems concerning Kleiman, he never attempted to get her side of things.
He also denies that she tried to meet with him. Walker says a meeting would have been pointless in any event because of her “narcissism.” He says a discussion of Kleiman’s behavior “would only elicit fervent denials, as well as her defense that all of her fellow employees were conspiring against her.”
He says that during her brief time at Customs, Kleiman “consistently illustrated a propensity to view all issues through filters which, in my opinion, made her ill-suited for the discipline, the latitude, initiative, and intellect of criminal-investigative tradecraft; the sole opinion that mattered was hers.”
Walker adds that he is “certain” Kleiman could excel in an academic setting but is just as convinced she “lacks the maturity of judgment to withstand any perceived slights to her authority or acumen.”
A different assessment comes from Tom McManus, who was Kleiman’s supervisor when she was transferred out of Flood’s group. During his EEO testimony, when McManus was asked how Kleiman did in his group, he said she followed orders and “performed well. There were no problems.”
The subject of her performance record at Customs is at the heart of the case. When Flood really cranked up the pressure to get her to fall in line, Kleiman says, he made an interesting threat: Flood told her that if he had to, he would retroactively redo her employee evaluations, all of which had, to that point, been positive. As part of the quirky setup at Customs, agents keep binders in their desks that hold their monthly evaluations. Shortly after the threat was made, Kleiman’s binder disappeared from her locked drawer.
The file reappeared in an EEO investigation a year later—and the original evaluations, Kleiman charges, had been replaced by more negative ones. And every single one had the same completion date—the day they were redone—next to the supervisor’s signature (it might be funny if it weren’t criminal). Essentially, she claims, they were forgeries. But Kleiman had the foresight to make copies of the original evaluations before they disappeared. “As things deteriorated, I knew that ultimately it would end up being their word against mine,” she says, her experience as a prosecutor undoubtedly coming into play. “My boss actually taunted me by saying no one would take my word over his. I knew he was probably right. So I made sure I had some proof.”
Once she was fired, Kleiman called the FBI. She contacted the inspector general’s office at both the Treasury Department (which oversaw Customs) and the Justice Department. She called the U.S. Attorney’s office in Brooklyn. Because of its involvement in prosecuting cases brought by Customs, the Brooklyn office referred her to the U.S. Attorney’s office in Newark. Wherever she turned, she says, she was, in one way or another, given the runaround. She was essentially chasing her tail.
“Choosing to blow the whistle is a life-changing experience,” says Doug Hartnett, a lawyer at the Government Accountability Project (GAP), a private, nonprofit advocacy group dedicated to defending the rights of whistleblowers. “To understand how dramatic the impact is on these people, and the kind of price they pay for standing up, consider just one statistic. Over half the people who blow the whistle end up losing their house.”
In fact, in most instances in both government and the private sector, choosing to blow the whistle is in essence choosing to commit professional suicide. “The people who do this are rarely, if ever, made whole again,” says Hartnett. “But for these people, the ability to look at themselves in the mirror is more important than their career.”
Sharon Chavis is an old friend of Kleiman’s who works for the NYPD, and she has watched Kleiman experience this ordeal from the beginning. She has even tried to get her to drop the fight with Customs and move on. “But Diane is a very focused, driven person,” Chavis says. “When she grabs hold of something, she is like the proverbial dog with a bone in its teeth. She’s not going to let go.” In the months after she was fired, Kleiman was, by her own admission, falling apart. She couldn’t sleep, her social life withered. But a talk with another friend made her realize she had to take control of her predicament. She hired a lawyer in July 1999 and formally filed her EEO complaint in December that year. But as she tried to barrel forward, she slowly began to realize that neither her sense of purpose nor her sense of outrage was exactly contagious.
In fact, her obsessiveness, the dramatic, even conspiratorial nature of her charges, and the difficulty of corroborating events in a hostile environment are a serious threat to her credibility. Kleiman is aware of the risk. She is also aware that when something like this takes over your entire life, and you claim to see things no one else says they see, you can be dismissed as easily as the guy who wears a tin-foil hat because he claims he’s receiving signals from another galaxy. “They drove me nuts at Customs,” Kleiman says, “but I can assure you I’m not crazy.”
When I first met Diane Kleiman, at the Garden Diner on South End Avenue, a block from her apartment in Battery Park City, she was in the middle of a loud conversation across several booths with a salesman who appeared to be trying to pick her up. She seemed to be basking in the attention. In fact, she was downright giddy from their exchange, even though it was only a little before ten in the morning.
She wears too much makeup and can at times, in her efforts to seem friendly, be a little cloying. Certainly, there are moments when she repeats the same point over and over, like a malfunctioning CD, and it is easy to imagine her as an irritating if not troublesome co-worker.
But her employment record doesn’t indicate any obvious difficulties at any of her other jobs. “She’s definitely intense,” says one senior prosecutor in the Bronx who worked with Kleiman when she was in the Queens D.A.’s office. “She worked hard, she fit in fine, and she was certainly no wackier than anyone else you’ll find floating around this business.”
“She’s really gone through some terrible times,” her mother says. “She’s not the same happy-go-lucky daughter I used to have.”
In May 2001, she discovered there was a government entity called the Office of Special Counsel (OSC) set up to consider grievances from federal employees—such as that of a whistleblower who believes she was retaliated against. (The process is complicated and slow. People familiar with it say it is also solidly stacked against whistleblowers.)
In November of that year, the OSC agreed to investigate Kleiman’s case, and its report is expected anytime now. Not long after that, again mostly as a result of her tireless efforts on her own behalf, Senators Chuck Grassley (who was a co-author of the Whistleblower Protection Act fourteen years ago), Richard Shelby, and Joe Lieberman took a strong interest in Kleiman’s case as well.
Grassley and Shelby in particular have gotten behind her, writing letters to the OSC and closely monitoring the investigation. “The fact that Senator Shelby has written to OSC on her behalf is indicative of how compelling he believes her case is,” says Senate banking committee spokesman Andrew Gray.
Given the lack of any kind of response from Customs, particularly to the security issues raised by Kleiman, sources now say it’s possible the case may result in congressional hearings. Customs, citing the pending litigation, declined several requests for comment for this story.
“I want to see at least one person referred to the U.S. Attorney for prosecution,” she says. “People have to understand they’ll be held accountable for their actions.”
Kleiman is far from alone in her concerns about security at JFK. One Customs agent at JFK I talked to, a man with eighteen years of experience, is himself wrestling with going public about the problems. He believes the security failures remain critical. His conscience is pushing him to speak out, even though he knows the impact this will have on his professional and personal life.
There are, he says, few checks and balances built into the system. Each airline hires its own independent contractors to handle tasks like cleaning the planes, and there are no hard-and-fast rules about background checks. “So you have all these people allowed on the ramps and in secure areas,” says the Customs agent, “and maybe there’s been an FBI check or maybe not. It’s all up to the individual companies. And these are not exactly the highest-paid jobs. There’s a very high turnover rate.”
And just as Kleiman has said based on her experience, there is this perception that if someone is on the ramps, he belongs there. The checkpoints where I.D.’s are needed are staffed by private security, not federal screeners like the ones now mandated to conduct passenger checks. Nor are any of the employees searched or asked to pass through a metal detector before gaining access to the ramps—the way prison guards, for example, are examined every time they report to work.
Perhaps even more alarming, however, given the concern about terrorists entering the country, is what the veteran agent says about the integrity of this process. When a plane comes in from a foreign country, passengers on that flight are supposed to go directly from the aircraft to the Customs checkpoint without having any outside contact. This is accomplished though the use of “sterile” corridors—the same ones that were found to be compromised when Kleiman made her big drug bust.
“There are exit doors along the sterile corridors, and they’re supposed to be locked and secure at all times,” says the Customs agent. “But it’s not unusual to find these doors unlocked and open. You can imagine the dangerous possibilities that presents.” Only eleven months ago, for example, federal authorities broke up a smuggling operation that was exploiting these holes to bring illegal aliens into the country.
The key to the operation was an airline-food-service employee with security clearance and a set of keys. He would meet an arriving foreign national at the gate and shepherd him into a sterile corridor, where he would unlock an exit door, allowing the illegal to slip into the main area of the terminal without passing through Customs. He was getting $1,000 a head for each undocumented alien he smuggled through.
As Kleiman waits for OSC to issue its findings, she has had plenty of time to think about the decisions she’s made since she first walked into Building 75 at JFK to begin her job at Customs. “There’s not been a day in the last four years,” she says, “when I haven’t gone over all this in my head trying to figure out why me? Why did I have to confront this? Why couldn’t I have had just a normal career at the agency?”
Having asked those questions, however, and knowing what she knows now, Kleiman still says she would do it all again. “Even though it doesn’t feel like it, in my heart I know I did the right thing.” What she wants now is vindication. She desperately wants a positive finding by OSC, then she wants to be reinstated and given her back pay. She even says she’d still like to work for the government. Just not at Customs. She would like some kind of job working in homeland security.
But as with most whistleblowers, her job is only part of it. “I want accountability. I want to see at least one person referred to the U.S. Attorney for prosecution,” she says, pointing out that this is about more than vindictiveness.
“People have to understand they’ll be held accountable for their actions,” Kleiman says just before leaving for Washington to meet with Senate staff. “Unless someone is punished, there won’t be any change in the system. And that’s what this has really all been about.”