< WikiLeaks and Protections for Federal Whistleblowers


Friday, December 03, 2010

BROOKE GLADSTONE: WikiLeaks is most commonly referred to as a whistleblower site, but Tom Devine begs to differ. He’s the legal director of the Government Accountability Project, the nation’s largest whistleblower advocacy organization, and he’s been working for 31 years for legislation to protect federal whistleblowers. He was getting darn close, until this week, when WikiLeaks, with its uncontrolled revelations, sullied the very word “whistleblower” in the halls of Congress and threatened to scuttle his hopes and dreams. Devine says that since 1994, only 3 out of 210 cases of whistleblowers appealing their punishments have been successful because whistleblowers can appeal only in a special whistleblower court, which interprets the law in a way that all but guarantees their appeals will fail.

TOM DEVINE: It’s kind of an Orwellian dictionary that they issue their decisions through. For example, the law says that you are eligible for protection if you make any lawful disclosure of significant misconduct. Well, this court has said that any lawful disclosure does not include disclosures to your coworkers, to your supervisor, anything connected with your job duty –

[BROOKE LAUGHS] - which is supposed to be the point of the law -

[BROOKE LAUGHING] - anything involving government policy, even if it’s illegal or institutionalizing fraud, waste and abuse, and that’s not the worst. The most recent decision was it doesn't cover any disclosure if you’re not the first person to have pointed out that wrongdoing. So much for free speech rights for supporting whistleblowers. What’s left is like driving down a, a road where there’s more potholes than pavements.

BROOKE GLADSTONE: You were talking about Orwellian language. One word that you encountered trying to protect whistleblowers is “irrefragable?”

TOM DEVINE: The court said that you don't have a reasonable belief you’re disclosing evidence, unless you present irrefragable proof. Now, I didn't know what that word meant but, you know, we're investigators; we tracked it down to Webster’s Fourth New Collegiate. And the definition of “irrefragable” is “undeniable, uncontestable, incontrovertible or incapable of being overthrown.” In other words, it leaves “beyond a reasonable doubt” in the dust. It’s far easier to put somebody in jail for being a criminal than for a whistleblower to receive official free speech rights. And that’s why they have a 3 in 210 track record.

BROOKE GLADSTONE: So tell me, what do these whistleblowers usually blow the whistle about? Can you give me the stories of a couple of your clients?

TOM DEVINE: Well, it runs the gamut. One good example involves Robert MacLean. He basically prevented us being completely vulnerable to a more ambitious plan to rerun 9/11 two years later. The Air Marshals was going to cancel its coverage of the airplanes in the middle of it, ‘cause they'd blown their budget on some corrupt contracts. Mr. MacLean challenged it, the Air Marshals blinked and the planes remained covered, and the hijacking was prevented. And he was fired for breaching security and endangering our country. Another example, Franz Gayl, the science advisor for the Marines, and he blew the whistle on their failure to deliver mine-resistant armored vehicles that would actually work against landmines in Iraq and were responsible for about a third of our combat casualties because the Marines had failed to deliver these armored resistant vehicles. It would have competed and undermined other contractors who wanted that work. Mr. Gayl succeeded. We got – they're called MRAPS – delivered. The unnecessary fatalities stopped. But he was put under a two-year criminal investigation and he had his security clearance yanked. Another example is a fellow named George Sarris. Well, he was a mechanic out in Kansas, blew the whistle on not doing basic maintenance on our intelligence aircraft for up to 30 years, in some instances. He, again, made a difference. He got the maintenance updated. But when he went to the IG to start their process, they said, well, you’ve got to have some more evidence for us before we’re gonna act on this. He gave them the evidence. They then accused him of criminal theft of the evidence that they had demanded, and on that basis he had his security clearance yanked and doesn't have any duties anymore.

BROOKE GLADSTONE: How often are whistleblowers who try to blow the whistle on waste, fraud and corruption, the ones that you've dealt with, how often are they wrong?

TOM DEVINE: We always do verification studies, always, before we represent people. We have to believe in them. The only thing we've got going for us at GAP is credibility. We find that about a third of the cases, the dissent is well taken. About a third of the cases, there’s been some injustice, but it’s not about things covered by the whistleblower law. It might be racial discrimination or sexual discrimination.


TOM DEVINE: But it, it’s not about betraying the public. And in about a third of the cases we think the people are phonies.

BROOKE GLADSTONE: So tell me about this new bill. You have some real optimism that it might actually be signed into law. The White House described it as landmark legislation. How so? What’s new here?

TOM DEVINE: Finally, it ends the monopoly of this one appeals court that’s just been rabid and gives the whistleblowers normal access to appeals courts. That’s the real significant breakthrough here. The law also expands free speech rights in areas where they didn't currently exist, such as climate change scientists or FDA scientists. Forty thousand TSA baggage screeners at the airports, intelligence community employees at the CIA and the NSA who haven't had any free speech rights, they'll have free speech rights now also.

BROOKE GLADSTONE: Really? It strikes me that the higher your clearance, the more sensitive the information, the fewer rights you’re going to have.

TOM DEVINE: Well, that’s absolutely correct. Their free speech rights aren't going to be equivalent to those of an employee at HHS, for example. But, unlike current law, they won't be able to be fired for dissenting within the CIA or the NSA. They'll have free speech rights within the workplace. They'll have the freedom to communicate their concerns to Congress. They will have a hearing that’s independent of the agencies where they work. And that gets you out of the sort of kangaroo court mode.

BROOKE GLADSTONE: Now, you've been gambling that the WikiLeaks story could work on your behalf.

TOM DEVINE: The jury’s out. It’s easier to take cheap shots at whistleblowers because WikiLeaks has been simplistically given the same kind of label. But WikiLeaks is the opposite approach for someone who witnesses fraud, waste and abuse. Almost all people who work for the government and see something wrong try to work within the system. If they can't work within their agencies, they try to go to Congress. If that won't work, then they try to go to the media. And very seldom is this anonymous. But right now every one of those outlets is inviting retaliation against what you can't defend yourself. The only thing that’s left is WikiLeaks. If Congress acts rationally, they will provide an alternative to anonymously dumping documents. We hope that the politicians will have enough common sense to take an action that prevents WikiLeaks from becoming a regular pattern in our society. We also hope the politicians are going to play it straight with all the voters fed up with fraud, waste and abuse by government bureaucracies. If they're serious about it, they'll provide some credible rights to the people on the front lines who risk their careers to honor the same values that the politicians just use in campaign speeches. And any elected leader who doesn't support this legislation or who tries to block it is exposing him or herself as a fraud.

BROOKE GLADSTONE: Tom, thank you very much.

TOM DEVINE: Thanks for being interested.


BROOKE GLADSTONE: Tom Devine is the legal director of the Government Accountability Project.