This year the whistleblower community has something special to be thankful for – the House and Senate’s unanimous approval of the Whistleblower Protection Enhancement Act (WPEA). After a 13-year campaign, federal whistleblowers will now have a fighting chance when depending on free speech rights for professional survival. GAP's and other press releases made the obligatory rounds offering appreciation to national leaders and NGO’s, who deserved it.
As one who was at the eye of the storm, it’s just not possible to stay cynical after depending on the extra efforts that made this victory possible – a common commitment, pit bull persistence and extra effort from ideological constituency extremes; bipartisan legislators working in teamwork during partisan gridlock; a President and White House staff uniquely supportive of rights for those attacking the administration; and most important, whistleblowing profiles in courage who are the foundation for – and soul of – these free speech rights. This is my message of thanks, and credit is due to the whistleblowers in our community. You have been the point of this campaign, because you make a difference that society needs. But you also have been on the front lines of making a difference. Since we are a transparency coalition, this also is a disclosure of why I think you deserve thanks.
Experience: You not only risked your professional lives and made a difference, you shared a breathtaking scope of experiences. As illustrative examples, over the years you’ve given me permission to share lessons learned from committing the truth, and to spotlight you as poster children for free speech reform after you ended government secrecy about:
- prescription drugs that kill the patients
- the risks behind plans to eliminate federal inspection of government-approved meat and poultry
- cover-ups of air safety violations that have caused unnecessary crashes with mass fatalities
- blanket domestic surveillance of all electronic communications
- torture and other violations of human rights conventions
- arbitrary detention, body cavity searches and hospital laboratory testing for drugs imposed on foreign visitors at airports
- SEC suppression of Wall Street corruption prior to the financial collapse
- unheeded pre-9/11 warnings that could have prevented the hijacking
- government plans to abandon Air Marshal coverage during a confirmed, more ambitious 9/11 rerun
- an eighteen month failure to deliver Mine Resistant Armored Vehicles, the cause for one-third of corresponding casualties in Iraq
- corruption diversion of funds for treatment of Traumatic Brain Injury among our combat-returning veterans
- arming Mexican drug cartels
- the causes and scope of the threat to society from climate change
- government-enabled corporate clear cutting on national forests
- failure to act on safety and security breakdowns at nuclear power plants and weapons facilities; and
- paying employees not to work.
There are many more. In each case, you paid a price by blowing the whistle. But in each case, you made a difference. Sometimes it was around the margins of an issue, with an impact on the individual level. Sometimes it was to expose the truth as a foundation for lessons learned and ongoing struggle. Sometimes you prevented massive loss of life, or changed the course of history. In each case you made a difference without viable rights. That’s one reason it has taken 13 years to substantially even the playing field. There’s no telling what you can accomplish with credible free speech rights. You are the worst nightmare for those abusing their power to betray the public. They knew the WPEA would reduce their power to silence you. They used every trick in the books to defeat it. But in the end, no responsible national leader or politician could say no to the truth of your collective experiences.
Direct Advocacy: You always have been there to bear witness personally when needed – testifying at hearings; walking the halls of Congress to brief staff; integrating your experience with the need for whistleblower rights while appearing on radio or television interviews; writing letters to the editor; authoring op-eds; emailing and calling congressional offices and the White House; phoning call-in radio programs; signing petitions; and consistently serving on the front lines throughout the last 13 years, whatever the task. Some of you even have worked at GAP, as volunteers or on staff to help pass the WPEA. It made a difference. Organizing the campaign’s final grass roots letter was a morale boost of fresh energy, and it was highlighted at every office I visited in the end game. In many instances your advocacy was not risk free. Retaliation promptly followed some instances of congressional testimony, national media appearances or speeches at whistleblower conventions. But that didn’t silence you. Nothing could.
Coalition Building: You selected the name for the Make It Safe Campaign. You created the website. You organized sub-coalitions that combined advocacy on your own subject expertise and whistleblower protection. You have counseled each other, and volunteered for mentoring to cope with pre/during/post whistleblower stress syndrome. Through annual conferences that you organized or helped organize, you traveled to DC, worked the Hill staff, networked, shared experiences, interviewed with media, participated in workshops and panels, filmed the sessions and put them on the web, reminded ourselves why whistleblowing matters, and rejuvenated activists both throughout the community and in DC so we could continue our marathon effort until we won.
Asserting Your Voices: Solidarity and consensus always are a difficult challenge between professional lobbyists, and those whose lives are the point of the lobbying. In large part, this is because we both are immersed in dealing with such different dimensions of our common struggle. In our community, whistleblowers are witnesses to, and deal with, the consequences when power is abused. DC-based Steering Committee lobbyists are trying to change the balance of power to win stronger whistleblower rights. They are very different challenges. As a rule, there is an intense conflict between what’s needed and what’s possible no matter how hard we try. It hasn’t always been easy to find consensus, but this year’s results reflect the community’s priorities. There was unwavering solidarity for national security whistleblower rights, because that has been your mandate for years. In the end we got a meaningful beach head for security clearance due process and internal intelligence community freedom of speech. That Presidential Policy Directive originated with whistleblowers who wouldn’t give up after the 2010 “hold” stopped the WPEA. At every showdown meeting on the Hill, we emphasized that including summary judgment would be fatal for any new law’s legitimacy. We won, for now. Some congressional offices still wanted court access through bench trials, even with rigged burdens of proof and without jury trials. But at a community meeting no one voiced approval for that choice, so it stayed out. While no one got all they wanted, the final WPEA’s boundaries reflect your active voices.
You’ve asserted your voices effectively within our community as well. Sometimes it was to reaffirm solidarity for the legislation against limited but loud opposition. Sometimes it was to drown out personal conflict that threatened to distract or discredit our campaign for whistleblower rights. Although we can and need to do much better in this area, in the end we survived with sufficient solidarity and credibility intact that our mission is the consensus voice you asserted and that the politicians heard.
Our work hardly is done. Without intense, effective hard work over the next two years, this year’s victory will be another free speech mirage. We must close the loophole for all civil service rights (including the WPEA) in any job that "implicates national security," created by the Federal Circuit’s recent Conyers decision. We have a difficult, uphill battle to get fair regulations on security clearance and intelligence community whistleblower rights from the Presidential Policy Directive. We have a tough campaign to make sure the two year experiment in “all circuits” normal appellate court access is made permanent after the current two year experiment. It also will take serious research to make permanent our two year victory on not granting the MSPB Summary Judgment. We also have two years to convince the Government Accountability Office (GAO) that jury trials are the essential next step for civil service whistleblower rights. There will be numerous significant test cases for the new law, starting with a struggle on retroactive coverage between legislative history and prior Board precedents. Office of Special Counsel oversight and partnership initiatives, and more nuts-and bolts goals for the OSC-MSPB re-authorization bill are on the front burner.
We can and need to be stronger as a community as well. I have been disturbed at breakdowns in civility, credibility and respect for differing opinions. Those are the primary values of what we fight for, and it’s bewildering to me when we behave the same as our adversaries. It will be a real challenge to impose accountability without suppressing free speech. I believe we need to try.
But this message isn’t about future challenges. It is to say thanks. Lawyers, wonks, lobbyists, Hill staffers, White House aides, NGO leaders, organizers, interns, and a dizzying range of media specialists from interviewers to investigators all worked hard, and from the heart, for this victory. But it would have been good energy after bad without you. These rights could not have been enacted without you. Lawyers are nicknamed “mouthpieces,” and no one could be more proud than me to have been a voice for you.
Tom Devine, GAP Legal Director