08/10/2009 05:12 am ET | Updated May 25, 2011

Blocked Whistleblower Protections Put Obama Transparency Promises at Risk

Interview with Whistleblower Advocate Tom Devine Crossposted from

Transcript of a July 8th Rob Kall Bottom Up Radio (WNJC 1360 AM) interview with Whistleblower advocate Tom Devine, discussing the unhappy situation whistleblowers are now in, thanks to a decision by a Bush appointee holdover Obama failed to replace.

Rob: For the second half of our show, we're with Tom Devine. Tom, what's your title?

Tom: I serve as the Legal Director of the Government Accountability Project. We're a non-profit, non-partisan public interest law firm. Our commission is to help whistleblowers. With that term, it's in the eye of the beholder. One person's hero can be another person's traitor. In our case, we help individuals who use free speech rights to challenge the abuses of power that betray the public trust.

Rob: You've got a couple urgent messages that you want to get across. You've told me there are a lot of people in power who Bush appointed that are still in power and are actively engaged in trying to prevent the transparent government that Obama campaigned on.

Tom: All the whistleblower agencies are either rudderless or have Bush holdovers who've spent their entire careers fighting the transparent, open government values that Obama ran on. This is a hopeless contradiction. He's keeping in office the enemy who is fighting a relentless rear-guard action against everything that we elected Obama to change. This really needs to stop. He needs to get people who believe in his policies to run the offices that implement them.

Rob: So what are these offices that you're talking about?

One is the whistleblower protection agency. The Office of Special Counsel. They haven't had a leader since the inauguration and are just completely adrift and afraid to take a stand against retaliation until a new leader arrives. Then there's the Merit Systems Protection Board where whistleblowers get their only day in court. It's a bureaucratic, bush-leage court. The board is run by a Bush holdover who, in a legacy ruling a few weeks ago, pretty much killed the Whistleblower Protection Act for all practical purposes, and there's no excuse that this person is still in office wielding power.

Rob: Can you speak a little bit more about this agency?

Tom: The MSPB is the successor to old Civil Service Commission. It's the only place where whistleblowerss can get a day in court when they're retaliated against in violation of their free speech rights. It's a very poor excuse for the court and kind of the lowest common denominator of our legal system. It gives you a bush-league hearing as a substitute for a real day in court where a jury of citizens can decide if your rights were violated.

Rob: And what about this judicial decision that was devastating for whistleblower protection rights?

Unfortunately it wasn't even a judicial decision. It came from this same minor-league substitute for courts, the Merit Systems Protection Board. And yes, it finished off the Whistleblower Protection Act until Congress acts. What happened was a federal air marshal a few years after 9/11 stopped the Dept of Homeland Security from a disastrous mistake. The air marshal service had run out of money because frankly they'd blown it on pork-barrel spending w/ the old-boys network. So in order to make up this money, they decided to cancel cross-country air marshal coverage during the middle of a hijacker alert. So one of the air marshals got the order and protested internally and was told to get lost. So he went public with it, Congress jumped on it, and it spread by wildfire. So the bureaucracy blinked and said, "Oh, we didn't mean to do that. It was a clerical mistake." You would think that the air marshal would get some sort of commendation for correcting the mistake. But no. After he stopped this fiasco, TSA (Transportation Security Administration) issued gag regulations that you can't disclose anything called "sensitive security information," which is basically anything that the bureaucracy wants to keep secret. There are virtually no standards other than that it "undermines air security." All they have to do is have an opinion; they don't even have to be right. You can be prosecuted for revealing this SSI. The problem is, Rob, it doesn't have to be marked. You don't even know it was secret. The only way you can know whether you are crossing the line is by asking for advanced permission, the opposite of protection of free speech.

Rob: Sounds Orwellian.

Tom: Oh, it is. It's the worst nightmare of ending free speech in this country, and it's being done in a back door fashion through these unmarked protect yourself from TSA think will undermine air security. After Robert Maclean, the air marshal, blew the whistle, TSA issued regulations creating these new SSI. Several years later, they applied them retroactively to fire Mr. Maclean. They told him that he had exposed SSI, even though it wasn't labeled sensitive at the time. Three weeks ago, at an MSPB hearing, they told Maclean that agencies have the power/authority to cancel the WPA through internal secrecy regulations. That means that the whole law is basically guidance for a voluntary honor system by any government bureaucracy.

Rob: So if the MSPB didn't make this determination, who did?

Tom: A guy named Neal McFee, the holdover chairman of the MSPB who was appointed by Bush. Currently, there are only Republicans on the board, even though it's supposed to be a bipartisan board.

Rob: So the new administration flat-out didn't do their job?

Tom: Well, they have a lot to do, but yes, this needs to be protected. In the meantime, the WPA is a bad joke. It's a fraud.

Rob: It's an actual law that was passed, right?

Yes, Congress unanimously passed this law in 1989.

Rob: So how could these Bush holdovers invalidate it?

Tom: They have the power to make a decisions, and they have basically ruled that if they want day to be night, it can be so. For the time being, Mr. Maclean does not have the benefit of the WPA.

Rob: Was this the intention of the law when Congress passed it?

In fact, it was the exact opposite.

Rob: What's the history of this law?

Tom: It began as a law in the post-Watergate Civil Service Reform Act. Sen. Leahy was one of the pioneers, as was Morris Udall in the House. The WPA was passed to strengthen that law and give it a real mandate in 1989. The champions for that were Pat Schroeder in the House and Carl Levin from Michigan and Sen. Charles Grassley from Iowa in the Senate.

Rob: Grassley has long been an advocate for whistleblowers, right?

Tom: Grassley and Levin have labored over the last ten years for the WPA to be overhauled. Its free speech rights are beautiful on paper, but the Achilles Heel of this law has always been minor-league due process, you don't have normal access to court. There's this one bureaucratic board that's kind of a consolation prize for presidential appointments. It's not a prestigious government job, it's either a stepping stone or consolation prize. And the appointees know better than to threaten the power structure and the powers that be. In 1989, the WPA was passed because the same board that was formed by the Civil Service Reform Act had only ruled for whistleblowers four times. So Congress realized they had to change something, but they decided not to scrap the board but instead simply give it more guidance. They did this same thing again with amendments in 1994. Well, what's happened since 2000, the board's only ruled three times for whistleblowers. Under McFee, the Bush chairman, whistleblower's record is 1-44. You don't stand a chance. The WPA has become probably the primary reason why wb's remain silent observers instead of sticking their necks out.

Rob: Tom, we went to meet with Rep. Conyers of the House Judiciary Committee. Do you recall that?

Tom: Yes, Robert Maclean, the fired air marshal, came to DC to fight for the WPA. He's selflessly lobbying Congress for a new law even though new rights won't apply to him.

Rob: So we went to the Hill in March and met with Chairman Conyers and had a fairly lengthy meeting. Did anything ever come of that?

Tom: We didn't get direct results from that meeting, but we have gotten the ear of the Justice Dept. Obama has assigned its White House Counsel and many of the top lawyers from his admin to work with the "good government" community trying to get a consensus. Frankly, I think the Obama folks are a little idealistic. There's never going to be consensus with the dark side of the bureaucracy on freedom of speech, but they're giving it the old college try.

Rob: Well I've been very involved with health care reform. Last week I had on the show Wendell Potter, who was a former insurance company executive, who basically said that Obama, in attempting to be fair and balanced and cover both sides is exposing himself to people who act in bad faith.

Tom: Well this is happening all throughout the government currently. Rather than saying, like Bush did, hey I won, we're doing things my way now, Obama is saying that since he won, we're going to seek a consensus to all society that gets as close as possible to the things he campaigned for. The White House has been our advocate for whistleblower rights, but they won't push it with agencies in the Executive Branch. At a certain point, the prez is going to have to lead re: whistleblower rights because the current law is a fraud that makes a trap out of all his promises to fight abuses of secrecy. If he waits for the dark side of the bureaucracy to agree that secrecy is a betrayal of the public trust, well we'll be waiting for Godot.

Rob: So we've got Obama trying to make everyone happy and failing to keep his promises. Well believe me, we need whistleblower protection. I spoke at a whistleblower meeting a few months ago and got to meet some whistleblowers. These are people of conscience who go to their boss and say something, then get the response that it will be taken care of. Then it's not, so they go to the next level, and it keeps getting ignored. Finally, they reach a point where they have to tell the truth because it's being ignored. Am I saying that right, Tom?

Tom: Absolutely. Most of them reach the point where they're scared to death because they know what's going to happen to them, but they have to say something because they can't live with themselves.

Rob: And they have good reason to be scared, because when whistleblowers go up against big agencies, they become the enemy and the goal is to destroy their credibility, reputation and make their lives miserable. So it's really essential that there be a whistleblower protection law, or else these organization will do whatever they can to crush these people.

Tom: Well the sad thing is, the whistleblower law is a trap. Its main impact has been to identify the people who are threats to the bureaucratic powers-that-be. Up to a point, you can say Obama is trying to please everyone, but he needs to do something. Now, this is the first president in 30 years who has invited whistleblower advocates to the table and said to the bureaucracy, hey, you have to satisfy these guys, too. Presidents Carter and Clinton would invite us in after they'd made the decisions and they expected us to thank them because what they did was good for us, but we didn't have any voice in it. I think what Obama's trying to do is in good faith and is very ambitious. But at a certain point, he did win the election, and it's time for him to implement his policies.

Rob: Now Tom, you're a lobbyist, right?

Tom: Yes, but I also do whatever it takes for whistleblowers.

Rob: I'm looking at the Obama governemtn and I'm not seeing transparency. I'm concerned that the people who's job it is to be the "bad cop" are working to protect Obama's executive privileges, and I'm worried that they might be happy about the way things are going.

Tom: Well we don't have any hesitation on blowing the whistle on politicians who betray the public trust. I don't think it would be fair yet to say that the president is acting in bad faith.

Rob: Well it's never going to be the president, it's going to be one of his junkyard dogs.

Tom: That's the problem. The president inherits this government of nearly 2 million people. I don't know that I have a criticism of the approach that Obama is taking. It's almost like he's engaged in this draining process to honor his campaign commitments. When I complained about this, I complained pretty bitterly to the White House people. They believe that if they get a consensus, maybe these whistleblower rights will finally take root. Maybe they're right, but either way we need to do something quickly. Whistleblowers won't defend the public if they can't defend themselves.

Rob: So what you're saying is that for the last 30 years, whistleblower protection laws have been sort of a sham, and whistleblowers need the opportunity to appear before a jury.

Tom: You nailed it, Rob. When whistleblowers get normal access to courts, which is what Obama campaigned on specifically, then the WPA won't be a trap. But until that happens, lawyers like us at GAP warn people against filing lawsuits to enforce their rights. The current reality is that you can spend thousands of dollars on a hearing, but the odds are 99% that you'll spend all this money just in order the final nail will be hammered in your professional coffin.

Rob: It seems like you almost have to be a little crazy to be a whistleblower.

Tom: You're right, and they're the ones that change the course of history, even if it means a lot of risk for them.

Rob: They're Joan of Arc-types.

Tom: I call them the modern Paul Reveres. They're warning us.

Rob: Tom, does GAP have a website?

Tom: It's We've got a sign-on letter from NGO's around the country for Obama to actually honor his campaign promises to deliver free speech protections for whistleblowers.

Rob: Who should our listeners contact?

Tom: If they're with an NGO, they should go to the website and join the sign-on letter. If they're individuals, they should get in touch with Public Citizen. Also, contact your senators. Specter and Casey as well as Lautenberg and Menendez and demand that the White House deliver on its promises to protect whistleblowers.

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