< A New Whistleblower Law


Friday, November 30, 2012

BOB GARFIELD:  In late 2010, the Whistleblower Protection Enhancement Act, which had overwhelming bipartisan support, was killed just before the end of the congressional session by a secret hold, a procedure that allows a single senator to anonymously stop a bill from reaching the floor. This seemed to us a most undemocratic way to kill a crucial piece of legislation to protect government whistleblowers, so we launched the Blow the Whistle Project, asking our listeners to call their senators to ask if they had torpedoed the Whistleblower Act. After hundreds of calls by OTM listeners, we narrowed down the search to just two senators, both of whom refused to comment. Well, in the almost two years since we launched that project, the secret hold was reformed, the Whistleblower Protection Enhancement Act was reintroduced in Congress and, on Tuesday, it was signed into law. Tom Devine, legal director of the Government Accountability Project, inspired and worked with us on Blow the Whistle, and he says the Act, a long time in coming, has real power to change the life of a government whistleblower.

TOM DEVINE:  The main thing that it does is overturns 18 years of hostile court decisions in which precedents were set giving whistleblowers a track record of 3 wins and 226 defeats. It also protects government scientists who challenge censorship. It gives free speech rights to the 40,000 baggage screeners at the airports. It gives employees normal access to appeals courts, so they're not at the mercy of this court that’s ruled against them 226 out of 229 cases. It gives them compensatory damages, so when they win, they actually can really win.

BOB GARFIELD:  Can you give me some poster child type examples of whistleblowers who suffered before the passage of this law, who now would be protected by it?

TOM DEVINE:  Well, let’s do a list of poster children. They exposed prescription drugs that kill the patients. They exposed cover-ups of air safety violations that cause unnecessary crashes and blanket domestic surveillance of all Americans’ electronic communications. They made warnings that, if they had been heeded, could have prevented the 9/11 hijacking. They exposed government plans to abandon air marshal coverage during the confirmed 9/11 rerun in 2003 or there's what they did in Iraq. They exposed an 18-month failure to deliver mine-resistant armored vehicles, which was the cause for one-third of correspondent casualties and led to their deliveries. The whistleblower on that, Franz Gayl, was on your program. They exposed how our own government has been arming Mexican drug cartels who then use the weapons we supplied to kill our agents. They’ve exposed the full causes and scope of the threat to society from climate change. I could keep going on for a long time, Bob.

BOB GARFIELD:  Well, no you’re doing very well. [LAUGHS] What was stripped from the bill that you had hoped it would include?

TOM DEVINE:  The good news is that federal whistleblowers have the strongest rights in their history. The bad news is that there were some key Republican gatekeepers, primarily in the House of Representatives, who blocked two of the cornerstones for this reform. One is jury trials to enforce these free speech rights. The second thing that was stripped out was free speech rights for intelligence community employees, like those at the CIA or at the NSA who exposed domestic surveillance, for example. That's where we’ve got the worst indefensible spending because it’s the most secret part of our government and it’s the highest stakes too. Those people could be the most significant whistleblowers in the federal workforce, in the House Permanent Select Intelligence Committee. So they killed the whole bill, if we included rights for those people.

BOB GARFIELD:  The administration, realizing that these provisions had been stripped out, actually acted in a way that arguably is against the interests of their own power base. Explain how they did that.

TOM DEVINE:  In a presidential policy directive, President Obama had restored the lion’s share of national security rights that the House had removed, and it’s really only fair to give credit where it's due here. This is the first time in history that a president unilaterally has made it easier for his employees to challenge his own administration's actions.

BOB GARFIELD:  What's most amazing about it is that the very Obama White House that became your champion was the most aggressive administration in memory in prosecuting [LAUGHS] whistleblowers. There's a little cognitive dissonance there.

TOM DEVINE:  Well, there’s a clear explanation to reconcile that contradiction. The administration has been going after people who made public disclosures of information. The whistleblower directive that the President issued gives free speech rights for those working within institutional checks and balances. It means that when they are the messengers who warn their bosses they were about to step in it, the boss no longer has the legal option to silence that person.

BOB GARFIELD:  Okay Tom, so high fives all around. And I guess those high fives should include On the Media’s own listeners who rallied behind our call for action and actually embarrassed the Senate into rethinking its secret holds.

TOM DEVINE:  Well, we didn’t have to wait for reforms in the Senate on secret holds to find out who is behind sabotaging the Whistleblower Protection Law in 2010. On the Media’s listeners did it for us. They called up their Senate offices around the country and grilled them. And, as the offices who put the holds on it told us, we’re not going to do this again. And they didn't. So I think you folks deserve a whole lot of credit for making a difference. But it’s not just On the Media. It’s the whistleblowers who risked their careers and then allowed us to tell their stories. And what’s really inspiring for me is how much bipartisan work was behind this. The staff of Representative Darrell Issa, I’d give them all public service medals for how hard they worked to get that bill through the House before Congress adjourned this time. I – and then we have a President who, instead of just giving public lip service while trying to undercut the reforms behind closed doors, fought for more teeth in the whistleblower bill.

BOB GARFIELD:  Tom, all props to the President but, as I understand the directive, he is allowing the agencies themselves, let's just say the CIA and the National Security Agency, to write their own guidelines, which makes me wonder if the fox is guarding the hen house. And I gather the directive is only good for the duration of the President's term in office and could be turned upside down by a subsequent administration?

TOM DEVINE:  Both of your concerns are well taken, and so we’re going to have our hands full over the next nine months, the timeframe to issue regulations, to convince these agencies to issue credible due process that’s not setting up a new kangaroo court system. And that's going to be a tough sell because these are the agencies that normally would be the defendants in a real lawsuit. The presidential policy directive also is only the law until some president changes his or her mind. The next president could remove it on day one, just like Mr. Romney was going to with Obama Care. So we need to get Congress to make these rights permanent.

BOB GARFIELD:  What's your next target?

TOM DEVINE:  Making sure that these rights take root and stick. And over the next two years, built into this law, there’s going to be a study on whether enforcement should be expanded to give federal workers jury trials when they’re retaliated against. And a key part of this law was normal access to the appeals courts, so they’re not at the mercy this one that rubberstamps anything the government does. And that's a two-year experiment. And we’re going to have to work our heads off to make sure that these reforms take root and it’s not just another mirage.

BOB GARFIELD:  All right, now Tom I have to ask you one more 

thing. One of the reasons whistleblowers have fared so poorly is this string of lower court and appellate decisions that have worked against them for decades, all of which creates a lot of legal precedent which courts tend to defer to. Is there going to be some sort of judicial showdown between the precedent that has long since been established against the interests of whistleblowers and this new law?

The courts created all these loopholes through interpretations of statutory language. They’re going beyond their boundaries when they do that.

Well, the Whistleblower Protection Enhancement Act specifically, literally overturns every one of the hostile precedents behind those 226 defeats. They’ll have to switch to another language in the court system, if they're going to repeat these outrages. However, we’ve got a lot of work over the next two years to make sure that this time the rights are worth the paper they're written on.

BOB GARFIELD:  All right. Tom, thank you very much.

TOM DEVINE:  Thanks for having me.

BOB GARFIELD:  Tom Devine is the legal director of the Government Accountability Project.


That’s it for this week's show. On the Media was produced by Jamie York, Alex Goldman, PJ Vogt, Sarah Abdurrahman, Chris Neary and Doug Anderson, with more help from Lita Martinez and Ariel Stulberg, who both finished their internships this week. Thank you both very, very much for your help. And the show was edited - by Brooke. Our technical director is Jennifer Munson. Our engineer this week was Ken Feldman.

BROOKE GLADSTONE:  Katya Rogers is our senior producer. Ellen Horne is WNYC’s senior director of National Programs. Bassist composer Ben Allison wrote our theme. On the Media is produced by WNYC and distributed by NPR. I’m Brooke Gladstone.

BOB GARFIELD:  And I’m Bob Garfield.



Tom Devine

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