Part Two, Tom Devine and his "Corporate Whistleblower's Survival Guide"

  My guest today is Tom Devine, legal director of the Government Accountability Project and author of the newly released: The Corporate Whistleblower's Survival Guide: A Handbook for Committing the Truth. Welcome back for the conclusion of our interview, Tom.  Why has the term whistleblower fallen out of favor? Is Person of Conscience better, more accurate?

September, 2011, presenting Sen. Akaka (D-HI) with Lifetime Achievement Award

photo credit: Sen. Akaka's website

  That one would take a sociologist or anthropologist to answer properly! My own insight is that the term seems to come from roles like a policeman whistling to stop, or a sports referee whistling a foul. Both are authority figures, and whistleblowers generally are the opposite -- individuals using only the power of free speech to challenge abuses of authority. There is nothing magic about the term. Other nations use names like "bell ringer" for those who climb church towers to warn their town of dangers; or "lighthouse keeper" for those who shine the light on rocks that otherwise would sink ships.

  I'm a little hesitant for "Persons of Conscience" to be an all-encompassing identity, because the motives for speaking out go in all different directions. What is important isn't whether the dissenter is a saint of sinner, motivated by the noblest values or by cutthroat competition. Some of my most effective whistleblower clients have been real jerks, while others have been my teachers and role models. What counts is that the public receives information that it has a right to know.  

  You've been at GAP since 1979. What's been accomplished in that time?

  There are two ways to answer. First, what has happened to whistleblowers during that time? The answer is a basic cultural and legal sea change in the United States that is spreading globally. When I first came, as a rule, whistleblowers were viewed either as nuts or traitors. Although there were exceptions, that was the norm. They were seldom relevant in making a difference, and were dismissed as nuisances. Boy, has that changed! 

  Now they more typically are lionized in popular movies and culture. The public appreciates their role. After the 2006 elections, a survey of swing votes' priorities for the new Congress found that strengthening whistleblower rights was second highest, favored by 79%. It was only behind a companion issue, eliminating illegal government spending, chosen by 81%. They are making a difference when we listen, while we ignore them at our peril. That is why Time magazine gave its Person of the Year award for 2002 to three women whistleblowers -- Coleen Rowley of the FBI, Sherron Watkins of Enron and Cynthia Cooper of MCI.

  The cultural sea change has run parallel with a legal revolution, especially in corporate free speech rights. Since 2002, Congress has passed ten laws that provide best practice rights against retaliation enforceable through jury trials for the vast majority of the American labor force. This completely reverses the traditional "at will" doctrine that left whistleblowers defenseless against retaliation. It is especially significant that they now have normal court access to enforce their rights through jury trials, since administrative bodies traditionally in control have tended to be under-resourced and vulnerable to political pressure. 

  There still are many pockets of the economy that arbitrarily and indefensibly are without without whistleblower rights, such as meat processing. Further, the laws are a hodgepodge of 46 inconsistent statutes, including many from decades ago, so primitive that they are are opportunities better off foregone. But for the first time, as a rule, corporate whistleblowers have a fighting chance to win when they assert their rights.   

  During this time, the rights of government whistleblowers have had a strange odyssey. When unanimously passed, the Whistleblower Protection Act of 1989 was a landmark, the strongest free speech law in history for government employees -- on paper. But due to weak due process enforcement channels, including highly limited court access, it has been gutted and transformed into a Trojan horse that rubber stamps retaliation. For the last 12 years, GAP has led a coalition fighting for a Whistleblower Protection Enhancement Act that restores the original rights on paper, creates credible protection for intelligence community whistleblowers who operate within institutional checks and balances, and finally, provides court access for enforcement. 

  Last year, the law was blocked by a secret hold that blocked a procedural formality in the last hour before Congress adjourned, after unanimously passing both House and Senate. We later learned that it was placed by senior Republican Senate leadership at the request of incoming Republican House leadership -- which, on the surface, had permitted the reform to pass by unanimous consent. At any rate, we have had to start over. We're going to finish the job his time. 400 organizations with over 80 million members have signed the Make It Safe Coalition (of groups supporting whistleblowers) petition to pass the law without further delay. Leading conservative groups are working actively to hold Republican leaders to their waste and abuse fighting commitments this time around.

  Throughout this time, GAP has been on the front lines -- to promote the value of whistleblowers; strengthen their rights in campaigns to pass or defend all of America's whistleblower laws during that period, as well as new whistleblower policies for employees of the United Nations, World Bank, and African Development Bank, help or represent some 5,000 to fight retaliation, including numerous test cases at all levels; investigate their charges to help them make a difference; share our accumulated knowledge in contexts ranging from a law school clinic to hosting international visitors and speaking on State Department tours to writing books like The Corporate Whistleblower's Survival Guide; and help foster a whistleblower community through activities like organizing national conferences. 

  Helping whistleblowers make a difference has been the most inspiring for me, because they keep proving the power of the truth, when used strategically, against enormous odds. David's triumph over Goliath isn't just in the Bible. Whistleblowers do it repeatedly. They are the Achilles heel of bureaucratic corruption. GAP clients have stopped completion of nuclear power plants that were accidents waiting to happen; exposed concealment of billions of gallons of radioactive waste leaked at the Hanford nuclear waste reservation; forced shutdown or removal of toxic incinerators emitting dioxin, arsenic and other metals next to churches and schoolyards; repeatedly blocked deregulation of government meat inspection; forced removal of dangerous prescription drugs such as Vioxx, after exposing that it caused some 50,000 fatal heart attacks despite FDA's approval; sparked testing of commercial milk sales that led to cleanup of some 80% contaminated by animal drugs; provided the basis for cancellation of the next generation of Star Wars; exposed and caused termination of human rights abuses against international visitors arriving at U.S. airports; revealed systematic White House censorship by oil industry personnel of government climate change research; revealed systematic government surveillance to capture all electronic communications of American citizens; and made the disclosures that forced World Bank President and self-described anti-corruption crusader to resign after his personal corruption was exposed. Among other legal campaigns, the organization has accomplished more than I ever dreamed.

  Great. You've been especially busy lately, Tom. Besides for coordinating the annual Whistleblowers Conference I attended which took place in September, you recently won an award in Frankfort, Germany. Congratulations! Can you tell us about that?

  It was an International Business Book of the Year award, presented at the Frankfurt Book fair in October from 10,000 nominees. I'm equally proud that the book itself was published by the Berrett Koehler Corporation, which sought the award and is a kindred spirit to groups like GAP and OpEd News. I've learned that they're the leading publishers for books on corporate accountability and good corporate citizenship.

  What is most exciting, however, is follow up from the Washington Whistleblower Assembly. The point was to add momentum and reinforce our 12-year campaign to enact a Whistleblower Protection Enhancement Act for federal workers. Last year, this landmark free speech and open government reform was unanimously approved by the Senate and House, but then killed through a secret hold an hour before adjournment. On October 19, the Senate Homeland Security and Governmental Affairs approved it unanimously. A House vote is scheduled for November 3.  [Updat e: On that very day, the House Oversight Committee unanimously approved HR 3289, the Platts-Van Hollen Whistleblower Protection Enhancement Act of 2011 .]  There is no excuse for the politicians not to finalize rights this fall for those who actually live their campaign rhetoric about fighting misspending and abuses of power.

    I'm glad you're not jaded by all the failed attempts, Tom. We'll watch closely to see what happens next. In another vein entirely, what got you interested in the topic of whistleblowers in the first place?

  If I weren't a lawyer for whistleblowers, I'd be one. But I don't like the idea of being on the receiving end of retaliation.  Working as their lawyer is the world's only safe job for me.

  The specific catalyst was writing a report on President Nixon's attempt during Watergate to purge all the Democrats from the civil service through a Machiavellian handbook called the Malek Manual, co-authored by Fred Malek who headed the Bush I presidential campaigns and has been Sarah Palin's chief fundraiser.  One of our recommendations was creating the whistleblower protection office that became the U.S. Office of Special Counsel.  Part of the follow up was attending a GAP whistleblower conference and hearing a speech by Dr. Tony Morris, who was fired as insubordinate and incompetent for accurately warning that the 1976 swine flu vaccine would kill and paralyze thousands, while failing to stop the flu.  Dr. Morris explained why he couldn't let the health of his career stop him from defending the health of children who were screaming and literally climbing the walls from adverse effects by a vaccine whose "political science" approval has violated every rule in the book for the scientific method. By the time Dr. Morris had finished his speech, I knew my life's calling was helping people like him. By then I was an Antioch Law School student, and obtained approval to start a GAP legal clinic that began in January 1979 and has been the hub of our work ever since. It is now part of the University of District of Columbia School of Law.

  You've definitely found your niche, Tom! Thanks so much for talking with me.  Good luck with your new book.

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Part one of my interview with Tom

Get a copy of The Corporate Whistleblower's Survival Guide: A Handbook for Committing the Truth

Goverment Accountability Project [GAP] website