February 6, 2014

From the Pentagon Papers to Edward Snowden – Part One of Our Interview with Tom Devine, Legal Director for the Government Accountability Project

GAP

Did you know the government almost left our airplanes unprotected despite knowing of an impending attack that would have made 9-11 look like a “skirmish?”  Why did Edward Snowden choose to go to the media instead of reporting his concerns internally?  Tom Devine, the Legal Director for the Government Accountability Project, spoke with us recently on these and other whistleblower issues.  Read on for Part One of our two-part interview.

Whistleblower Insider:  What is the Government Accountability Project?

Tom Devine:  We’re a non-profit, non-partisan, public interest law firm, legally a 501(c)(3) organization.  Our mission is helping whistleblowers.  Whistleblowing, like truth and beauty, is all in the eye of the beholder.  The people we help at GAP are individuals using free speech rights to challenge abuses of power that betray the public trust.  That’s the way we’ve defined the concept.  Overwhelmingly, these are folks who are witnessing abuses of power in their places of employment.

Whistleblower Insider:  Tell us about the early days at GAP.

Tom Devine:  It’s an interesting history.  Our first incarnation was formed in 1976 and came out of Daniel Ellsberg’s Pentagon Papers.  At the time, GAP was part of a liberal think-tank called the Institute for Policy Studies, and Ellsberg went there to organize the Pentagon Papers and plan their release.  After that they decided to start a whole whistleblower program, called the Project on Official Illegality.  It was mostly intelligence community whistleblowers — one was the whistleblower who exposed the secret war in Angola, which led to passage of a law that the  president has to tell Congress when we go to war (unfortunately that law was repealed under President Reagan a few years later).

I came into the picture in 1977, when the organization began calling itself GAP. Whistleblowers had helped to expose a plan by President Nixon to replace the Civil Service with a political patronage system, and the lawyer that I worked for was invited to speak there.  When I started law school the next year,  I went to another GAP conference and got credits for organizing a legal rights workshop and then organized a clinic of Antioch law students to participate in the organization, which by then was on the verge of going out of business – they’d run out of money.  With the law students volunteering our time and getting paid in academic credit, pretty much working full time there, we kept it going until I graduated.  The one paid staffer who was there (and is now our president) and a fundraiser raised enough money to hire me, so then we had two paid staff.  Then in 1981 we had four . . .

“The drug was making massive profits for the pharmaceutical industry, but had killed 50,000 Americans with unnecessary heart attacks.”

Whistleblower Insider:  How does GAP fulfill its mission of helping whistleblowers?

Tom Devine:  We help them in four ways.  The first is by defending them against retaliation.  We’re primarily an organization of lawyers.  We might as well be a law firm for at least the core of our activities – and that’s probably the most common activity at GAP – defending whistleblowers against retaliation.  We do it through a little bit broader tactics than firms rely on.  We also do legal campaigns here instead of just legal cases.  That means matching up the isolated whistleblower with all of the constituencies and stakeholders that should be benefitting from his or her knowledge – information that had been concealed from them.  We’ve developed coalitions to support both the whistleblower and the purpose of their dissent.  And that leads to the second hat that GAP wears.

For decades, we have been conducting investigations based on whistleblowers’ eyewitness experiences, and through the documents they share in directly challenging abuses of power.  That’s the most satisfying work for us at GAP.  We’ve stopped numerous nuclear power plants that were accidents waiting to happen.  We’ve forced toxic incinerators burning dioxin and mercury and heavy metals and lead right around school yards and churches in minority neighborhoods, we’ve forced them to be closed down or relocated into safer spots.  We’ve led campaigns to block the Department of Agriculture from deregulating government approved meat and poultry inspections by having the USDA seal of approval vouched for by corporate honor systems instead of government inspectors.  We represented scientists at the FDA responsible for exposing that 80% of commercial milk had illegal animal drugs and sparking the national milk testing program.  We represented the chief scientist for the Army in Star Wars, and his dissent was pivotal in stopping the next generation of Star Wars from being funded.  More recently I represented an FDA scientist, Dave Graham, who challenged dangerous drugs – killer drugs – being approved by the FDA, including a killer painkiller called Vioxx —

Whistleblower Insider:  You have to have been living under a rock at this point to have not heard of the Vioxx issues.

Tom Devine:  The drug was making massive profits for the pharmaceutical industry, but had killed 50,000 Americans with unnecessary heart attacks – almost as many Americans as died in Vietnam, and they were killed by a drug our government officially decreed safe.  There were unnecessary tragedies for families who lost their loved ones due to a drug the government officially decreed was safe, when it wasn’t.  The government knew it, and the manufacturer knew it.  It was just trading our elders for undeserved profits.

We also represented the pioneer whistleblowers on illegal domestic surveillance up through now, starting with a corporate whistleblower at Verizon to the NSA folks who worked through the system and got clobbered for doing it.  Currently we’re on the counsel team for Mr. Snowden helping to get the word out on his disclosures.  We’ve represented all sorts of international whistleblowers on human rights abuses, and sparked creation of whistleblower policies and rights at the United Nations, the World Bank and other Intergovernmental Organizations.  A lot has involved national security.  Some of them have been from the Red Teams that were warning about 9/11 before it happened, because they were catching the security breach breakdowns, and they weren’t allowed to act to fix them.

    “In 2003, our counter intelligence services discovered, and  confirmed, a planned Al Qaeda attack – 9/11 would have seemed like a skirmish compared to this.”

Whistleblower Insider:  So much of it seems to be going on behind the scenes, without the public really knowing what is happening in the government.

Tom Devine:  Probably the most surreal one that I’ve worked on was a national security case involving an air marshal, Robert MacLean.  In 2003, our counter intelligence services discovered, and confirmed, a planned Al Qaeda attack – 9/11 would have seemed like a skirmish compared to this.  The terrorists were going to hijack a large fleet of long distance aircraft carriers and carry out suicide missions on all the West Coast cities and a series of European capitals.  It was the climax of what had started on 9/11, and our counterintelligence intercepted it.

For a week there was intensive training of all the air marshals in the country to be ready for this.  This was like pre D-Day: This is it, this is what we’re here for, this is our moment.  And then, the weekend before the attack was planned to happen, the air marshal service cancelled all the coverage for long-distance airlines flights, leaving all the targets of the Al Qaeda attacks defenseless.  We later learned that this was because they ran out of money after they’d blown their budget on some corrupt buddy system contracts, and they didn’t want to have to explain it to Congress and go back for a supplemental appropriation.  So they were just going to take a chance and cancel all missions to save hotel bills and extra expenses.  It was playing a lot worse than Russian Roulette with the safety of the country.  This whistleblower, Robert MacLean, went to his boss, asked what was going on, and was told “it’s crazy, but it comes from headquarters so there’s nothing you can do. Just keep your mouth shut.”  So he went to the inspector general – and he got the same answer from the IG.  So he went to MSNBC and they put out a story on Sunday evening.  Monday morning, President Bush was hammered with questions he couldn’t answer.  Leaders in the House and the Senate held press conferences, and were going to hold hearings.  Within 24 hours Homeland Security announced it had all been a mistake and they never did plan to cancel the coverage.

Whistleblower Insider:  And this is all because of this one whistleblower coming forward?

Tom Devine:  He got the word out effectively through the media and Congress within 24 hours.  It was indefensible.  The plan to cancel coverage was cancelled, and then he got fired.  There was a three year witch hunt that finally exposed him.

Whistleblower Insider:  After all that, he got fired?

Tom Devine:  They semi-classified — after the fact — the orders to cancel the coverage.  They made a pseudo classification, “sensitive security information,” and then fired him for breaching national security by disclosing this “sensitive security information” three years earlier.  We just won a court of appeals decision upholding his legal victory, but the Justice Department is seeking Supreme Court review.

It’s not all national security either. For example, we help those defending human rights.  One of the human rights cases I am most proud of involved a woman named Cathy Harris.  Cathy was a customs inspector down in Atlanta, GA, and she confirmed a practice there that was also occurring on the Mexican border, — baseless accusations of people being drug smugglers.  This is when people would come in at the airport in Atlanta, from other countries, without any evidence that they were drug smugglers, but authorities would accuse them of smuggling.  Usually it would be attractive women being accused by male guards.  Sometimes it was because they wanted to get overtime –

“It was like their bodies were property of the US Government.”

Whistleblower Insider:  Was this the TSA?

Tom Devine:  It was the Customs Service, and if they didn’t find anything in their luggage, they’d do a body cavity search – would look inside the body, not just making people take their clothes off.  If they didn’t find anything in the body cavity search, they’d take them to a hospital and subject them to laboratory tests for up to four days. And during that time they couldn’t contact a lawyer; families wouldn’t know what happened to them – they just vanished.  It was like their bodies were property of the US Government.  Thanks to Cathy’s disclosures, the time that an international visitor can be detained has shrunk from four days to two hours.  So these folks really make a difference.

Whistleblower Insider:  Wow!  What is the third hat GAP wears?

Tom Devine:  The third thing we do is work to strengthen whistleblower protection laws.  I’ve been a leader in campaigns to pass or defend 28 whistleblower laws, from local to the international level.  We’ve had had a legal revolution in corporate freedom of speech since 2000 and GAP’s been at the forefront of passage of 12 new corporate whistleblower laws. We’re now in our fourth generation of statutory rights for federal government employees.  We’ve been there since the beginning in 1978, when they passed the Civil Service Reform Act after Watergate, to the passage of the Whistleblower Protection Act in 1989, and then after a 13 year campaign, passage of the Whistleblower Protection Enhancement Act that completely overhauled the free speech rights of federal government workers.

Then the fourth hat we wear is teaching the lessons we’ve learned.  Most of us are adjunct professors of law at one school or another.  We always have a law school clinic operating here, plus about a dozen full-time interns in the summer from the law schools training for the next generation.  We put out survival guides for whistleblowers, publish books on it, and write law reviews.  I do continuing legal education without charge whenever any government agency requests it.

Whistleblower Insider:  The NSA and Snowden are such a big topic right now; can you tell us more about GAP’s work in this area?

Tom Devine:  We’ve been involved in three stages of that.  Initially, from 2006-2007, I was representing one of the pioneers from Verizon, a fellow who was a consultant put in charge of security for Verizon and found the biggest security breach in his life – everything electronic that was processed through Verizon’s system was going through a circuit to Quantico, Virginia.  The “Quantico Circuit,” he nicknamed it.  He reported to Verizon that the government had somehow managed to break in and was stealing everything that was on their system.  He was soon informed that they hadn’t stolen anything from the system, that there’s nothing to worry about, the leadership of the company was well aware of this, and that he hadn’t seen anything, and if he kept remembering that he’d seen things, he’d be gone.  So he blew the whistle.  At first, his disclosures forced the House to back off from providing immunity to telecoms for betraying their customers’ privacy, but there was still a backroom deal and eventually immunity was passed.

 “Bill Binney, poor guy – while in the shower he said good morning to a pistol pointed at his head by an FBI agent.”

Then there was a second generation of domestic surveillance whistleblowers who all worked at the NSA.  They’ve been represented by Jesselyn Radack, who herself was a whistleblower when she was a Justice Department Ethics Officer, and Kathleen McClellan. Jess blew the whistle on the DOJ’s lying to the courts about John Walker Lindh, the American Taliban, not wanting to have a lawyer before he was tortured.  That was a lie.  He repeatedly asked to have a lawyer.  She was forced out of the DOJ and came to GAP and she and Kathleen lead our work on the Homeland Security Project.  But it is focused on abuses of Homeland Security more than a focus against terrorists, challenging all the attacks on freedom from our own government since 9-11.  Jess and Kathleen McClellan represented a second generation of domestic surveillance whistleblowers from the NSA, Tom Drake, Kirk Wiebe, and Bill Binney.  They disclosed everything the proper way.  They went to the NSA IG.  They went to the Department of Defense IG.  They spent hundreds of hours with these folks.  It finally led to a 400-page report by the Pentagon IG substantially confirming their charges.  But the IGs also blew the whistleblowers’ cover when somebody else leaked the information to the New York Times, and they all faced simultaneous FBI raids on their homes.  These whistleblowers never had disclosed a syllable of classified information to the media.  Only one, Tom Drake, had one non-classified interview with the media.  They’d been doing everything through the IG and the House Permanent Select Committee on Intelligence, and they all faced daybreak raids from the FBI – 10 to 20 agents came in and ransacked their houses, took all sorts of their personal property, which still hasn’t been returned, and terrorized their families.  Bill Binney, poor guy – while in the shower he said good morning to a pistol pointed at his head by an FBI agent.

Whistleblower Insider:  What was the thinking behind this?  If they’re doing everything internally, the government is aware that these people are blowing the whistle because they’re speaking to the government.  Why would they send the FBI in?

Tom Devine:  Well, what happened is, President Bush didn’t know who had leaked the information about the Stellar Wind program.  A Justice Department lawyer named Tom Tamm, revealed it to the New York Times, but these folks, the NSA Three, had been doing it the right way and from what we understand when the New York Times story came out the White House was trying to find who did this.  So there was a dragnet, and the FBI went for the people who had said the same thing within the system.  As a reward for doing it right, their lives were turned into nightmares.  Tom Drake was threatened with over 30 years of incarceration under the Espionage Act.  We were on the counsel team and helped him beat it, but he lost his home, his wife left him, and he went bankrupt.  He works in an Apple store now, although he’s one of the top engineers in the national security field.  They paid a horrible, horrible price, but we’ve been working with them from both directions, defending against retaliation and helping them get the word out.

  “There is probably no more significant cause of media leaks than the staff and leadership of the House Intelligence Committee.”

Whistleblower Insider:  So that second generation is an example of whistleblowers doing it by the book, yet it backfired in their faces?

Tom Devine:  It backfired in their faces, and that led to Mr. Snowden’s approach. He’s been very open, that he saw what happened when people did it through the system, and he had no intention of getting the same treatment, so he was going to bypass the system.  And you know, it’s really ironic, it’s the Chair of the House Permanent Select Committee on Intelligence, Mike Rogers, and his predecessor Pete Hoekstra, who are personally responsible for sabotaging any anti-retaliation rights for people who do work within the system responsibly and properly.  We’ve got a scenario, now – we overhauled and practically have gold standard whistleblower rights for everyone who’s paid by the taxpayers, except the folks who really should be working within the system.

Whistleblower Insider:  You are referring to how those two members of Congress fought to ensure that Whistleblower Protection Enhancement Act did not protect security folks?

Tom Devine:  Pete Hoekstra in 2010 and Mike Rogers in 2012 were chairs of the House Permanent Select Committee on Intelligence. They said they would kill the whole bill if national security rights were included in the Whistleblower Protection Enhancement Act.  We had gold standard whistleblower rights for intelligence community contractors like Mr. Snowden.  The House Intelligence Committee, which has been screaming self-righteous, bloody murder about whistleblowers leaking to the media, is directly responsible for sabotaging any ability for whistleblowers to protect themselves when they operate responsibly through proper channels.  There is probably no more significant cause of media leaks than the staff and leadership of the House Intelligence Committee.

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That’s all for this week.  Tune in next week for Part Two of our interview with Tom Devine.

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If you would like more information or would like to speak to a member of Constantine Cannon’s whistleblower lawyer team, please click here.

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