Blocked Whistleblower Protections Put Obama Transparency Promises at Risk; Intvw with Whistleblower advocate Tom Devine

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?-

Tom: 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?-

Tom: 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 b/c 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 the MSPB made 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.-

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