< Tom Devine on Whistleblower Protections

Transcript

Friday, January 27, 2012

BROOKE GLADSTONE:

Tom Devine is legal director of the nonpartisan public advocacy group, the Government Accountability Project, where he's been working on passage of a Whistleblower Protection Enhancement Act for more than a decade. He calls Lerner's appointment to the once moribund Office of Special Counsel a breath of fresh air.

TOM DEVINE:

It's like waking up from a long nightmare and all of a sudden the sun is shining and the sky is blue, and I'm sure the honeymoon'll be over at some point.

[BROOKE LAUGHS]

But right now we're just having a hard time finding anything to criticize.

BROOKE GLADSTONE:

But no matter how well intentioned she may be, she has a lot of limitations in that office, right?

TOM DEVINE:

The primary limitation is she doesn't have a decent law to work with. And until that changes we can have the most dedicated presidential appointments that anyone would dream of, they're not gonna have the tools to deliver.

BROOKE GLADSTONE:

Which brings us to Franz Gayl. Carolyn Lerner got him his job back but — pick it up from there.

TOM DEVINE:

His first day back he was demoted and stripped of all his science and technology duties. In other words, the reaction of the Marines to this scientist who had stopped unnecessary casualties in Iraq was, never again, you made us look bad. No one in the Marines has anything to lose by harassing this public servant. The worst that'll happen is they won't get away with it.

And that's one of the cornerstones of the Whistleblower Protection Enhancement Act, arming the Special Counsel with the authority to seek discipline, get bureaucrats fired who harass whistleblowers, instead of just blocking them.

BROOKE GLADSTONE:

Last year we worked with you on a project to sniff out who put the secret hold on the Whistleblower Protection Act, which effectively killed it. That act has now been reintroduced. Where does it stand?

TOM DEVINE:

We passed both the Senate and House committees unanimously last fall. But some of the key committee chairs in the House are gutting some of the major provisions. For example, the House Judiciary Committee cut out jury trials for federal workers. That's just inexcusable.

We've passed jury trial rights for corporate whistleblowers for nearly the entire private sector, and there's really no excuse to say that government workers who are defending the taxpayers deserve second class whistleblower rights, compared to corporate workers who are defending the shareholders. But that's what's happened so far in the House.

And then there's the national security loophole. The head of the Permanent Select Committee on Intelligence has said that if there’s any protections for people in the intelligence community, they'll block the bill from being voted on.

This is the largest source of fraud, waste and abuse in the government, the national security bureaucracy because it is so secret. They don't have anything more than an honor system to keep their actions in chuck.

BROOKE GLADSTONE:

Tom, they must have a reason.

TOM DEVINE:

I think there's a very good reason, the revolving door between the staff of the House Intelligence Committee and the intelligence bureaucracy. It's free flowing. The House right now is bogged down behind closed doors in demands from one committee to the next.

And they've said there won't be a bill, if the government workers get jury trials. There won't be a whistleblower law, if the intelligence community employees have any rights to challenge fraud, waste and abuse within their agencies. There won't be any law if people like Franz Gayl can challenge retaliatory yanking of their security clearances. And there's no public record about this. There's no public discussion or debate; there's no defense.

BROOKE GLADSTONE:

If we want a comment, someone to respond to your accusations, whose office should we call?     

TOM DEVINE:

The buck has to stop at the top. Get in touch with Speaker Boehner and Mr. Cantor and ask them if they're going to support rights so that people who defend the taxpayers can defend themselves. Fighting government misspending may accomplish as much or more as any of these showdowns to shut down the government or bankrupt the treasury. How about a real commitment to get the job done?

BROOKE GLADSTONE:

Carolyn Lerner says the whistleblower has a PR problem. Do you think that's part of what's keeping this bill from moving?

TOM DEVINE:

I think whistleblowers have a public relations problem with the power structure. They certainly don't with the public. The National Taxpayers Union has made this their highest legislative priority, to pass the Whistleblower Protection Enhancement Act.

The surveys that preceded all of the votes of the laws to protect corporate whistleblowers showed that swing voters find the priority of protecting whistleblowers higher than any other public policy issue, except to stop illegal government spending.

And Congress responded, almost riding a political wave, to help whistleblowers in the private sector. Then the same people who supported the legislation with a record vote put secret holds on it. We don't have any problem with the public not having solidarity for whistleblowers. It's these politicians who are in bed with the bureaucrats.

BROOKE GLADSTONE:

Tom, thank you very much.

TOM DEVINE:

Thanks for hearing me out.

BROOKE GLADSTONE:

Tom Devine is the legal director at the Governmental Accountability Project.