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BK Blog Post
Posted by Tom Devine.
Tom Devine is legal director of the Government Accountability Project, where he has worked to assist thousands of whistleblowers to come forward and has been involved in the all of the campaigns to pass or defend major whistleblower laws over the last two decades.
During this year’s Whistleblower Summit for Civil and Human Rights GAP coalition partners, whistleblowers, and congressional leaders came together in our nation’s capital to commemorate our modern day heroes. The Summit, organized by ACORN 8 and leading civil rights groups for the fourth consecutive year, climaxed on July 30th - National Whistleblower Appreciation Day. Highlights included more than a dozen panels, a congressional luncheon, and a book signing that included the Corporate Whistleblower’s Survival Guide. Topics ranged from emerging tactics to silence whistleblowers, to police accountability and taxpayer waste in the growing surveillance state (Photo: From left to right: Tom Drake, Tanya Ward Jordan, Mandy Smithberger, Tom Devine, DeLisa Lay, Larry Criscione).
On National Whistleblower Appreciation Day, GAP legal director Tom Devine moderated a panel on the Make It Safe Coalition’s leading campaigns within the 114th Congress. Tom Drake, the pioneer NSA whistleblower to expose the government’s domestic surveillance program, relived how - after he did everything by the books to report government misconduct – the government tried to prosecute him for 30 years under the Espionage Act. Drake asked the audience, “If it’s a crime to report a government crime, where is the protection for the whistleblower in the national security space?”
Criminal retaliation is not unique to the IC community, however. Panelist Larry Criscione, a Nuclear Regulatory Commission engineer who disclosed the vulnerability of nuclear power plants to dam breaks, described how he was interrogated by armed agents and threatened with felony charges after he made a protected whistleblowing disclosure to Congress and the Office of Special Counsel.
Tanya Ward Jordan, Founder of Coalition for Change, Inc., discussed unanimous House passage of the Federal Employee Antidiscrimination Act. Introduced by Congressman Elijah Cummings (D-MD), the Act would strengthen EEOC reporting and whistleblower rights training requirements, among other reforms. EEOC and whistleblower cases are often interrelated. Former Chief Deputy U.S. Marshal Matthew Fogg, an active Summit participant, disclosed systemic racism throughout the U.S. Marshal Service and won in a landmark ruling after decades of litigation.
Mandy Smithberger, Director of POGO’s CDI Straus Military Reform Project, discussed Senator Barbara Boxer’s (D-CA) Legal Justice for Servicemembers Act. Alongside reforms introduced by Congresswoman Jackie Speier (D-CA), it would improve legal protections for military whistleblowers. This year the Defense Department requested more than $585 billion from taxpayers, yet military whistleblowers enjoy the lowest common denominator of rights, Smithberger pointed out.
TSA air marshal Robert MacLean highlighted the irony that federal employees are limited to an administrative hearing at the Merit Systems Protection Board (MSPB), while their private-sector counterparts enjoy jury trial access to challenge whistleblower retaliation. That issue is currently under review by the Government Accountability Office, which is slated to issue a 2016 study on whether or not public servants should enjoy full court access. MacLean and his family know firsthand the significance of a fair day in court. After eight years of litigation and a recent 7-2 Supreme Court victory, his case is being remanded to the MSPB.
DeLisa Lay, Investigative Counsel for the Senate Judiciary Committee, explained the role of the Senate Whistleblower Protection Caucus. Launched this Congress by Senators Charles Grassley (R-IA) and Ron Wyden (D-OR), the caucus is comprised of a dozen Senators and facilitates information sharing at the congressional staff level.
At the National Whistleblower Appreciation Day luncheon, hosted by National Whistleblower Center, congressional leaders transcended party lines to honor whistleblowing. Congresswoman Speier kicked off the event by recognizing Tom Drake and marine safety whistleblower Franz Gayl for personifying true public servants.
Senator Wyden highlighted the unprecedented workload at the Office of Special Counsel (OSC), which has received a near 70% increase in whistleblower complaints since 2008. He was joined by Senator Tammy Baldwin (D-WI), who called for a sea-change in culture at the VA and acknowledged the OSCs proactive efforts to protect whistleblowers, including 40 disciplinary actions against responsible officials at the VA.
Within hours of the luncheon the House passed strong rights for VA whistleblowers and closed the loophole for retaliatory peer reviews.
Wyden affirmed the caucus’ commitment to whistleblowers, “In our caucus, you have a pledge from all of us that we are going to stay at it until everybody in government and the private sector can feel comfortable to come forward and say this is wrong… I think the work you’re doing is as important as it gets, and you have friends on both sides of the aisle.”
He was joined by Chairman Ron Johnson (R-WI) of the Senate Homeland Security and Governmental Affairs Committee. Reflecting on the four brave whistleblowers who testified in June during a Senate hearing, Johnson remarked – “Their reward? To have their lives ruined. I joined the caucus to guarantee those men and women have the protection to come forward. It’s the least we can do."
Senator Grassley provided the keynote address, "Silencing patriotic people we call whistleblowers just allows wrongdoing to fester and to spread. By pointing out problems, whistleblowers foster transparency... [which] brings accountability… Many whistleblowers bravely report concerns internally to supervisors before they think of themselves as whistleblowers… they just want things to be done the right way, as the law requires.” He noted that FBI whistleblowers are not eligible for protections when they make a disclosure directly to their supervisor.
He continued, “Then the [agencies] discover they could have saved time money and embarrassment had they taken their concerns seriously; this is what happens when agencies treat whistleblowers like liabilities rather than assets.” And they are assets; thanks to whistleblowers, $42 billion taxpayer dollars have been recovered under the False Claims Act since 1986.
After decades of congressional oversight, he closed on a cautionary note, “Unfortunately no amount of legislation will change the culture that affects whistleblowers in the first place.” The senior Senator challenged our nation’s leaders, with their words and actions, to convey the importance of whistleblowing through a rose garden ceremony and more concrete measures. In the meantime, Senator Grassley and his colleagues aren’t waiting, as they paid homage to whistleblowers on National Whistleblower Appreciation Day.
During the Pillar Awards, toxicologist Dr. Riki Ott received the Grace Lee Boggs Award for Activism. A lifelong advocate for the eradication of toxins in communities, Dr. Ott has been an indispensible partner on GAP’s investigation into the use of deadly dispersants during the BP Deepwater Horizon disaster.
Paulette Taylor of Coalition for Change closed the Summit with some words of wisdom for fellow whistleblowers on how to reduce stress: smile, exercise, get enough rest, positive thinking, reach out to others, achieve a good work-life balance, relaxation, and eat a healthy diet.
A special thanks to Summit organizers Michael McCray and Marcel Reid of ACORN 8, and to Pacifica’s Gloria Minot for flawlessly moderating the conference!