[Senate Hearing 114-447]
[From the U.S. Government Publishing Office]
S. Hrg. 114-447
BLOWING THE WHISTLE ON RETALIATION:
ACCOUNTS OF CURRENT AND FORMER FEDERAL AGENCY WHISTLEBLOWERS
=======================================================================
HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
JUNE 11, 2015
__________
Available via the World Wide Web: http://www.fdsys.gov/
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin Chairman
JOHN McCAIN, Arizona THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky JON TESTER, Montana
JAMES LANKFORD, Oklahoma TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire CORY A. BOOKER, New Jersey
JONI ERNST, Iowa GARY C. PETERS, Michigan
BEN SASSE, Nebraska
Keith B. Ashdown, Staff Director
David N. Brewer, Chief Investigative Counsel
Courtney J. Allen, Counsel
Emily M. Martin, Counsel
Brian M. Downey, Senior Investigator
Michael Lueptow, Investigative Counsel
Gabrielle A. Batkin. Minority Staff Director
John P. Kilvington, Minority Deputy Staff Director
Troy H. Cribb, Minority Chief Counsel for Governmental Affairs
Katherine C. Sybenga, Minority Senior Counsel
Rebecca S. Maddox, Minority Counsel
Brian Turbyfill, Minority Senior Professional Staff Member
Laura W. Kilbride, Chief Clerk
Lauren M. Corcoran, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Johnson.............................................. 1
Senator Carper............................................... 2
Senator Ernst................................................ 21
Senator Portman.............................................. 23
Prepared statements:
Senator Johnson.............................................. 33
Senator Carper............................................... 35
WITNESSES
Thursday, June 11, 2015
Lieutenant Colonel Jason Luke Amerine, United States Army........ 5
Taylor Johnson, Senior Special Agent, Homeland Security
Investigations, U.S. Immigration and Customs Enforcement, U.S.
Department of Homeland Security................................ 7
Michael Keegan, Former Associate Commissioner for Facilities and
Supply Management, U.S. Social Security Administration......... 9
Jose R. Ducos-Bello, Chief Officer, U.S. Customs and Border
Protection, U.S. Department of Homeland Security............... 11
Thomas M. Devine, Legal Director, Government Accountability
Project........................................................ 14
Alphabetical List of Witnesses
Amerine, Lieutenant Colonel Jason Luke:
Testimony.................................................... 5
Prepared statement........................................... 37
Devine, Thomas M.:
Testimony.................................................... 14
Prepared statement........................................... 67
Ducos-Bello, Jose R.:
Testimony.................................................... 11
Prepared statement........................................... 59
Johnson, Taylor:
Testimony.................................................... 7
Prepared statement........................................... 40
Keegan, Michael:
Testimony.................................................... 9
Prepared statement........................................... 43
APPENDIX
Prepared statement for the Record from National Treasury
Employees Union................................................ 87
Response to post-hearing questions submitted for the Record from
Mr. Devine 90
BLOWING THE WHISTLE ON RETALIATION:
ACCOUNTS OF CURRENT AND FORMER FEDERAL AGENCY WHISTLEBLOWERS
----------
THURSDAY, JUNE 11, 2015
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:37 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Ron Johnson,
Chairman of the Committee, presiding.
Present: Senators Johnson, Portman, Ayotte, Ernst, Sasse,
Carper, McCaskill, and Booker.
OPENING STATEMENT OF CHAIRMAN JOHNSON
Chairman Johnson. This hearing will come to order.
Good morning, everybody. I want to welcome our witnesses,
say how much I appreciate your thoughtful testimony. I have
read it all. There are some pretty compelling stories. This is,
from my standpoint, a very important hearing.
As I have looked back at the laws written and designed to
protect people that have the courage to come forward within
government to blow the whistle, to tell the truth, to highlight
problems of waste and abuse and corruption and potential
criminal activity within departments and agencies, we have a
number of laws and they date back quite a few years. With Mr.
Devine's testimony, I added a new one. I did not realize it
went back as far as 1912 with the Lloyd-LaFollette Act,
followed by the Civil Service Reform Act of 1978, then the
Whistleblower Protection Act (WPA) of 1989, and then the
Whistleblower Protection Enhancement Act (WPEA) of 2012. And
yet, we still have problems.
My own experience with this, having come to government
pretty late in life, started really with the events with the
Secret Service in Cartagena, and then as we started looking at
the reports being issued and written by the Office of Inspector
General (OIG), the fact that there was retaliation, or
certainly evidence of retaliation against members of that
inspection team for being forthright.
And then followed up just recently with our border security
hearings. We had a Customs and Border Protection Agent (CBP),
Chris Cabrera, testify before this Committee contradicting some
of the information from the Department of Homeland Security
(DHS), but also testifying under oath, as all of you will be
doing here today. A couple months later he testified on March
17, 2015. A few months later, right before another hearing on
May 13, 2015, this Committee was made aware that Agent Cabrera
was being scheduled for a hearing in front of the Internal
Affairs.
Now, I raised the issue with then, still, Deputy Chief of
U.S. Border Patrol Ron Botello and I stated, because of my
Lutheran background, I will put the best construction on
things, and I was assuming that that hearing with Internal
Affairs was all about being concerned about what he was
bringing to the table and wanting to correct any errors within
the Customs and Border Protection Agency. I am not so sure that
was the case. Fortunately, because we highlighted it in our
hearing, that Internal Affairs hearing with Mr. Cabrera was
canceled that same day rather abruptly. So, I have a certain
sense that maybe that was not so innocent, they really had
something else in mind with that hearing.
So, these issues are very serious. As a result, my office
has set up a website, [email protected]. We
have already had over 130 whistleblowers throughout the
government contact our office, and what we have here today are
four of the individuals that did contact our office. And, I am
also mindful through Mr. Devine's testimony that probably the
greatest risk any whistleblower incurs is when they contact
Congress. It sounds like that is where the greatest retaliation
can occur.
So, again, I want to thank all the witnesses for coming
here. The purpose of this hearing is not to adjudicate the
issues you have raised. That will occur through a process, a
procedure. The purpose of this hearing is to highlight so the
American people understand and so that this Committee
understands that once an individual steps forward and puts
their career at risk, exposes themselves to the type of
retaliation that is, unfortunately, all too common, we want to
hear what type of retaliation is inflicted on individuals and
what form of retaliation--or, what forms retaliation takes. So,
that is really the purpose of this hearing.
I do want to caution people, there may be some areas where
some testimony might come close to revealing classified
information or law enforcement sensitive. I want to make sure
we do not breach those restrictions.
But, with that, again, I want to welcome all of our
witnesses. I appreciate your courage. I appreciate the courage
of anybody willing to step forward and risk that kind of
retaliation, and I am looking forward to hearing your testimony
and your answers to our questions.
With that, Senator Carper.
OPENING STATEMENT OF SENATOR CARPER
Senator Carper. Thanks, Mr. Chairman.
It is a pleasure to meet all of you and to welcome you here
today. Thank you for your service in different arenas, and
particularly those of you who serve in uniform and who have
served in the uniform of our country in the past.
Mr. Chairman, I appreciate your efforts to highlight the
retaliation that too many of our Federal employees have faced
over the years, and even today, when they have blown the
whistle on waste, blown the whistle on fraud and abuse and
misbehavior within their agencies. You have heard me often talk
about how invaluable the work is of the Inspector Generals
(IGs) across our government, the Government Accountability
Office (GAO) and others are to this Committee as we work
together to get better results for less money and reduce our
Federal debt--continue to reduce our Federal debt.
I am reminded today that many times, it is actually Federal
employees and contractors within the government that first draw
attention to issues or wrongdoings in their agencies. They are
just as vital a part of our team as we work together to make
this government of ours even better. Without people who are
willing to stand up and say something is wrong when they see
that it is wrong, it would be much harder to root out waste,
root out fraud and abuse. And, in order to encourage people to
stand up, we need to ensure that when they do, they will not be
punished for doing so.
I have been a longtime proponent of strengthening agency
oversight by hearing from and protecting Federal
whistleblowers. A few years ago, a whistleblower from the Dover
Air Force Base within my State contacted my Dover office with
information about mismanagement at the base mortuary, the Air
Force mortuary, and actually the mortuary for our country,
where we bring home the remains of our fallen heroes.
My office was able to draw attention to both of these
issues and the retaliation that the whistleblower in fact, were
facing. At the end of the day, the Office of Special Counsel
(OSC) and their investigation led to disciplinary action not
against the whistleblowers, but against several people in
leadership positions at the base within the mortuary itself,
their top officer at the mortuary, a colonel, and the
reinstatement of whistleblowers and others there.
I was struck by the courage of these brave whistleblowers
who risked so much to right a wrong. To be honest with you, I
was also struck by the good work done by the Office of Special
Counsel, whose responsibilities include looking out for the
whistleblowers and making sure they get a fair shake, as well
taxpayers.
This Committee as a whole also has a strong history of
working with individual whistleblowers to root out waste,
fraud, and abuse. For example, in our last Congress, testimony
from whistleblowers was critical to a hearing and investigation
led by former Senator Tom Coburn, former Senator Carl Levin,
into an Administrative Law Judge (ALJ) office in West Virginia
which is responsible for reviewing thousands of applications
for Social Security Disability programs. That hearing, I am
sure you recall, Mr. Chairman, that hearing was powerful and
proved critical to improving accountability and oversight into
the disability program.
These whistleblowers performed an important role in both
the investigation and in the hearing. A number of women, very
brave, courageous women, really, put everything on the line,
their jobs, their livelihood, their lives, in order to be able
to tell us the truth. And, without them, there would have been
no investigation, there would have been no hearing, and the
fraud the Committee shined a light on may have never been
uncovered.
So, I believe in whistleblowers and I am grateful for
whistleblowers and think that we need to follow the Golden
Rule, make sure they are treated like we would want to be
treated if we were in their place. Those are just two recent
examples of the critical role that whistleblowers can play.
I was pleased to learn in preparing for this hearing that
the Office of Special Counsel has made significant progress in
the last couple of years under the leadership of Special
Counsel Carolyn Lerner in protecting whistleblowers. In fact, I
have been told that favorable outcomes for whistleblowers that
came to the Office of Special Counsel have increased since
2007, not just by 100 percent, not by 200 percent, not by 300
percent, not by 400 percent, not by 500 percent, but by 600
percent. It is a huge turnaround and great improvement.
That is an impressive statistic, but Congress and the
Administration have additional work to do to better ensure that
individuals feel free to speak out without fear of retaliation.
In fact, we passed the most recent law, I think, 3 years ago,
in 2012. I was happy to support that legislation to further
strengthen the role of the Special Counsel to enable them to
encourage whistleblowers to muster the courage, and make sure
that when they do, that they are not retaliated against.
Before we go any further, though, I would be remiss if I
did not also note, as the Chairman already has, that the
whistleblowers here today have retaliation claims that have not
yet been fully substantiated and cases that are still pending.
Having said that, on the one hand, I am glad that we have the
opportunity to hear from all of you. We welcome you today. But,
to be honest, I have some concerns about publicly discussing
cases that involve ongoing investigations and litigation.
Congress has established, as you know, paths for whistleblowers
to obtain independent, objective reviews of their complaints.
They can do this through the Office of Special Counsel, as we
have done in my own State at the Dover Air Force Base, through
the Merit System Protection Board (MSPB), the Offices of
Inspector Generals, and the Federal Courts, and I hope that
today's hearing is not seen as interfering with or somehow
prejudging the reviews relating to our witnesses' claims that
are underway today.
I would also note that there are some perspectives on the
issues that our witnesses raise that we will not hear today,
perspectives that would help us better understand these issues,
and I hope that as we continue our oversight on this subject--
and I hope we will--we will have the opportunity to hear from
the agencies involved, especially from the Office of Special
Counsel.
That said, I nonetheless hope that we can learn some
valuable lessons here today about the experiences that our
whistleblowers face, what we can do to better support them, and
how we can improve both the climate and the process for
whistleblowers in the future.
Again, I appreciate the hearing, Mr. Chairman, and I am
especially pleased to join you as a member of the newly created
Senate Whistleblower Caucus. We look forward to working on
these and other important issues. Thank you.
Chairman Johnson. Thank you, Senator Carper, and I can
assure you, this is just the first step. This is the first
hearing. Again, the purpose is to highlight the form of
retaliation and what happens, and we will continue to delve
into the subject with probably multiple hearings.
With that, it is the tradition of this Committee to swear
in witnesses, so if you could all rise and raise your right
hand.
Do you swear the testimony you will give before this
Committee will be the truth, the whole truth, and nothing but
the truth, so help you, God?
Colonel Amerine. I do.
Ms. Johnson. I do.
Mr. Keegan. I do.
Mr. Ducos-Bello. I do.
Mr. Devine. I do.
Chairman Johnson. Thank you. Please be seated.
Our first witness is Lieutenant Colonel Jason Amerine.
Lieutenant Colonel Amerine serves in the United States Army and
led a Special Forces Team in Afghanistan in 2001, for which he
received a Purple Heart and Bronze Star with V Device which
notes participation in acts of heroism involving conflict with
an armed enemy. Lieutenant Colonel Amerine has raised concerns
about hostage recovery efforts to Congress.
Lieutenant Colonel Amerine.
TESTIMONY OF LIEUTENANT COLONEL JASON LUKE AMERINE,\1\ UNITED
STATES ARMY
Colonel Amerine. Thank you, sir. Warren Weinstein is dead.
Colin Rutherford, Josh Boyle, Caitlin Coleman, and the child
she bore in captivity remain hostages in Pakistan. I used every
resource available, but I failed them.
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\1\ The prepared statement of Colonel Amerine appears in the
Appendix on page 37.
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One of those resources was my constitutional right to speak
to Members of Congress. You passed the Military Whistleblower
Protection Act to ensure such access. But after I made
protected disclosures to Congress, the Army suspended my
clearance, removed me from my job, and sought to court martial
me.
As a soldier, I support and defend the Constitution of the
United States in order to have a government in which the voices
of the people are heard. My team had a difficult mission and I
used all legal means available to recover the hostages. You,
the Congress, were my last resort. But, now I am labeled a
whistleblower, a term that is both radioactive and derogatory.
I am before you because I did my duty, and you need to ensure
all in uniform could go on doing their duty without fear of
reprisal.
Let me be clear. I never blame my situation on the White
House. My loyalty is to my Commander in Chief as I support and
defend the Constitution. Whatever I say today is not as a
Republican or a Democrat, but as a soldier without allegiance
to any political parties.
In early 2013, my office was asked to help get Sergeant
Bergdahl home. We audited the recovery effort and determined
that the reason the effort failed for 4 years was because our
Nation lacked an organization that can synchronize the efforts
of all our government agencies to get our hostages home. We
also realized that there were civilian hostages in Pakistan
that nobody was trying to free, so we added them to our
mission.
I assessed that both issues were caused by an evolutionary
misstep that created stovepipes of our Federal agencies. The
Department of Defense (DOD) faced this problem in the 1980s, as
the Army, Navy, Air Force, and Marines operated independently
of one another, leading to the Goldwater-Nichols Act of 1986.
Transformation on that scale literally takes an Act of
Congress.
To get the hostages home, my team worked three lines of
effort: fix the coordination of the recovery, develop a viable
trade, and get the Taliban back to the negotiating table. My
team was equipped to address the latter two of those tasks, but
fixing the government's interagency process was obviously
beyond our capability.
Recovering Sergeant Bergdahl was a critical step to
carrying out our Commander in Chief's objective of ending the
longest war in American history, so I went to Congress in order
to repair a dysfunctional bureaucracy to support our President.
It caused the Army to place me under criminal investigation.
I spoke to Representative Duncan Hunter, because he is a
member of the House Armed Services Committee. I needed him to
buttress our efforts with two simple messages. The hostage
recovery effort was broken, and because of that, five hostages
and a prisoner of war had little hope of escaping Pakistan.
It started to work. His dialogue with the Department of
Defense led quickly to the appointment of Deputy Under
Secretary of Defense for Policy Lumpkin as a Hostage Recovery
Coordinator for the Pentagon. This step enabled the DOD to act
decisively on the Bergdahl trade once the Taliban sought a
deal.
But the civilian hostages were forgotten during
negotiations. I continued to work with Representative Hunter to
try to get them home. He set up a meeting between my office and
the Federal Bureau of Investigation (FBI), then the FBI
formally complained to the Army that information I was sharing
with them was classified. It was not. The Department of Defense
Inspector General has since reviewed the information through my
DOD IG complaint and confirmed it was not classified through a
Joint Staff review. But still, I am under investigation.
A terrible irony--a horrible irony--is that my security
clearance was suspended on January 15, the day after Warren
Weinstein was killed. We were the only effort trying to free
the civilian hostages in Pakistan and the FBI succeeded in
ending our efforts the day after a U.S. drone strike killed
Warren Weinstein.
Am I right? Is the system broken? Layers upon layers of
bureaucracy hid the extent of our failure from our leaders. I
believe we all failed the Commander in Chief by not getting
critical advice to him. I believe we all failed the Secretary
of Defense, who likely never knew the extent of interagency
dysfunction. But now I am considered a whistleblower for
raising these issues.
There has been no transparency to the Army's investigation
of my protected communications with Representative Hunter. The
Army would not even confirm why I was being investigated for
the last 5 months until this week, and they only did that
because of today's hearing.
Danielle Brian and Mandy Smithberger of the Project on
Government Oversight (POGO) have been a godsend, and
Representatives Duncan Hunter and Jackie Speier stood up for me
where nobody else in Congress did until today.
I am truly grateful for the opportunity to testify before
you. The outpouring of support from fellow service members has
been humbling. Worst for me is that the cadets I taught at West
Point, now officers rising in the ranks, are reaching out to me
to see if I am OK. I fear for their safety when they go to war,
and now they fear for my safety in Washington. Is that the
enduring message we want to send?
And, we must not forget, Warren Weinstein is dead, while
Colin Rutherford, Josh Boyle, Caitlin Coleman, and her child
remain hostages. Who is fighting for them?
Thank you.
Chairman Johnson. Thank you, Lieutenant Colonel. Thank you
for your service to this Nation.
I will point out that Representative Hunter is in the
audience here, so welcome, sir.
Our next witness is Ms. Taylor Johnson. Ms. Johnson is a
Senior Special Agent with Homeland Security Investigations
(HSI), a component under Immigration and Customs Enforcement
(ICE). Special Agent Johnson has raised concerns about national
security and criminal risks in the EB-5 program to her
management and to the DHS Office of Inspector General. Ms.
Johnson.
TESTIMONY OF TAYLOR JOHNSON,\1\ SENIOR SPECIAL AGENT, HOMELAND
SECURITY INVESTIGATIONS, U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT, U.S. DEPARTMENT OF HOMELAND SECURITY
Ms. Johnson. Chairman Johnson, Ranking Member Carper, and
distinguished Members of the Committee, I appreciate the
opportunity to speak before you guys today surrounding the
issues and obstacles with whistleblowing.
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\1\ The prepared statement of Ms. Johnson appears in the Appendix
on page 40.
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I am a Special Agent. I have been with HSI for about 11
years. I have been responsible for investigating large
transnational organized crime groups involved in money
laundering, narcotics, and bulk cash smuggling. I will not bore
the Committee with any awards or commendations, although I have
received some of the highest honors of our Department and my
Office of Personnel Management (OPM) file reflects clearly
yearly promotions.
After disclosing gross mismanagement, waste, and fraud that
threatened general public safety, national security risks, and
public corruption surrounding the EB-5 project, I was subjected
to a significant amount of harassment and retaliation. With the
approval of my chain of command, I began investigating the EB-5
regional center and a U.S. investor. Some of the violations
investigated surrounding the project included Title 18 statutes
of major fraud, money laundering, bank and wire fraud. In
addition, I discovered ties to organized crime and high-ranking
officials and politicians who had received large campaign
contributions and promotions that appeared to have facilitated
the program.
I disclosed this to my management and later the Office of
Inspector General, specific examples of national security risk
associated with the EB-5 and the project under investigation.
Some of those security risks coincided with what the Central
Intelligence Agency (CIA), the FBI, and the Securities and
Exchange Commission (SEC) have already discovered, as well.
During the course of the investigation, I discovered that
EB-5 applicants from China, Russia, Pakistan, Malaysia had been
approved in as little as 16 days. The files lacked the basic
and necessary law enforcement queries, and that was evident by
the regional center's SOFs and applicants' 526s. I found over
800 operational EB-5 regional centers throughout the United
States. This was a disturbing number for me, since the United
States only allows 10,000 applications per year. I could not
identify how the U.S. Citizenship and Immigration Services
(CIS) was holding each regional center accountable or how they
were tracked once they were inside the United States.
In addition, a complete and detailed account of the funds
that went into the EB-5 project was never completed or produced
after several requests related to that investigation. It became
evident that there were some serious and significant national
security risks to that program.
From the onset of the investigation, my management began
getting complaints from outside agencies and high-ranking
officials. As a result, I was removed from the investigation
and it was ultimately shut down and closed.
Shortly after I was escorted by three supervisors from my
desk and out of my permit duty station, I was not permitted to
access my case files or personal items. I was removed initially
over 50 miles, in direct violation of Title 5. My weapon and
credentials were taken against the agency's firearms policy. My
government vehicle was confiscated. Access to the building and
all government databases was revoked. I was told I could not
even carry or own a personal weapon, which is a constitutional
rights violation.
I have been placed on absent without leave (AWOL) on six
separate occasions, four of which were during my meetings and
interviews with OIG and the OSC. When an adoption social worker
tried to contact and verify employment, she was told that I had
been terminated for a criminal offense. I almost lost my one-
year-old child.
I report to a building that houses inmates, where parolees
report, and in an area that has the highest homicide and
transient population in the United States. I am continuously
placed in dangerous situations with no way to protect myself or
others. Management has willfully obstructed me from competing
for any promotions and injured my prospects to promote.
Last, after being contacted by the Office of Inspector
General on the EB-5 case and designated as a witness, the
agency falsely accused me of misconduct during a border
enforcement operation in 2011. It resulted in a termination
recommendation. The allegations surrounding the termination
have since been proven unfounded by the OSC and the agency has
recognized that.
The Office of Professional Responsibility (OPR) produced an
inaccurate and biased report in an attempt to terminate my
employment and remained in contact with the same chain of
command who had shut down the EB-5 case. This is a direct
conflict of interest.
The 2011 complaint was used after the agency was unable to
substantiate any allegations against me and as a tool to ensure
that I could not testify for the OIG or continue the
investigation into the EB-5 program. There are no policies in
place which limit the disciplinary actions against agents.
Agents are placed on administrative restrictions for years at a
time, which is a gross mismanagement and a waste when these
agents are needed to support cases and protect the United
States.
I was slandered to the point that I could not perform my
job because of the malicious and false gossip. It took away the
time and happiness from my family, and I am still currently
being held hostage by my own agency. It is demoralizing to
myself and agents to have directors and senior leadership bury
their heads in the sand and ignore the reports of undue
influence and surveys that clearly identify agents wanting to
do their jobs, but being unable to because of the leadership.
It condones and encourages bad behavior within the Department
of Homeland Security.
I am here to inform the Committee at an agent level of the
retaliation surrounding one of the largest investigative
branches of the Federal Government. Agents and officers need to
be valued by management, not punished, when they disclose
factual and important information to our leadership.
In closing, it is important to have agents at your front
line coming forward on issues that affect the safety of our
Nation. To this Committee, I look forward to listening to your
insight and answering any questions you may have. Thank you,
sir.
Chairman Johnson. Thank you, Ms. Johnson.
Our next witness is Mr. Michael Keegan. Mr. Keegan is a
retired Associate Commissioner for Facilities and Supply
Management at the Social Security Administration (SSA). Mr.
Keegan has raised concerns about waste within the Social
Security Administration. Mr. Keegan.
TESTIMONY OF MICHAEL KEEGAN,\1\ FORMER ASSOCIATE COMMISSIONER
FOR FACILITIES AND SUPPLY MANAGEMENT, U.S. SOCIAL SECURITY
ADMINISTRATION
Mr. Keegan. Chairman Johnson, Ranking Member Carper, and
distinguished Members of this Committee, thank you for this
opportunity to discuss my demotion, reassignment, and
retaliation during my tenure at the Social Security
Administration.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Keegan appears in the Appendix on
page 43.
---------------------------------------------------------------------------
In July 2011, I was recruited by former Deputy
Commissioner, Budget, Finance, and Management, Michael
Gallagher specifically to assume management and responsibility
for the Office of Facilities and Supply Management (OFSM), an
organization of approximately 500 employees and contractors
operating and administering management and real estate actions
for hundreds of SSA facilities across our country.
In January 2012, I was assigned as the Project Executive
for the construction of a replacement computer data center.
This project was funded via a $500 million appropriation as
part of the American Reinvestment and Recovery Initiative.
Congress had been briefed by SSA officials that the
appropriation was needed to replace the existing National
Computing Center (NCC), located on the SSA headquarters in
Woodlawn, Maryland.
Most notably, the replacement data center occupied only one
floor of the entire National Computing Center, with
approximately 75 employees. However, an additional 925
employees work in the building's other three floors. The
centerpiece of the justification presented to Congress was that
the NCC was beyond economical repair, in terrible condition,
and had to be replaced in totality.
My duties further required attendance at quarterly
congressional staff meetings before the House Ways and Means
Committee, Subcommittee on Social Security. SSA was required to
brief the Committee on the progress and costs of the NCC
replacement project. I was an important member of SSA's
delegation.
In the course of performing these duties, I discovered a
number of serious problems at SSA. I first brought these
problems to the attention of Assistant Deputy Commissioner,
Budget, Finance, and Management, Ms. Tina Waddell, who did not
act on my recommendations and instead instructed me to brief
the new incoming Deputy Commissioner of Budget, Finance, and
Management.
In February 2013, Mr. Peter Spencer was brought out of
retirement by Acting Commissioner Carolyn Colvin to assume the
duties of Deputy Commissioner. Soon after Mr. Spencer's
arrival, I gave him a detailed briefing on serious issues that
I believed included misleading Congress, waste and abuse. I
further raised employee overtime and travel abuse issues.
However, the most significant issues I raised involved SSA's
representations to Congress to replace the entire National
Computing Center when, at most, only the part of the NCC that
held SSA's Data Center needed replacement.
As an example of this lack of candor, testimony on the
record from Patrick O'Carroll, SSA's Inspector General,
references the National Computing Center replacement with the
National Support Center Data Center. Page three of that
testimony notes that SSA represented it was monitoring and
improving NCC plumbing conditions, foundations, and monitoring
HVAC ductwork as examples. This was no mistake or
misunderstanding. SSA was specifically advised by an
independent assessor to revise a Jacobs Engineering report to
directly address the Committee's inquiries on construction cost
and future use of the NCC. SSA refused to follow this
recommendation and chose not to be forthright with Congress.
Further, there was no mistake. At depositions, my attorney
specifically asked and clarified for Ms. Colvin and her top
aides that SSA never had any plans to replace all four floors
or the entire National Computer Center. Attached for the
Committee's review are Exhibits 5 through 7 of deposition
transcripts which demonstrate this lack of candor.
I ask the Committee to pay special attention to Ms.
Colvin's deposition transcript, where she denies knowledge of
that which National Computing Center employees do; where she
testifies that she never saw the reassignment letter that
ruined my career, a letter which she signed; notably, her
testimony that her Chief of Staff made the critical decisions
against me, which was squarely contradicted by her Chief of
Staff's testimony which stated she made those decisions.
I ask the Committee to read pages 41 to 46 of Mr. Spencer's
testimony as an exhibit, in which he dances around basic
questions about whether he would consider purposely misleading
Congress to be unethical. Mr. Spencer actually testified that
he could not affirmatively say that purposely misleading
Congress is necessarily unethical.
Shortly after my report to Mr. Spencer, I was removed from
the quarterly congressional staff briefings. A week later, a
formal investigation was launched against me. Although I was
cleared from the completely fabricated discrimination and
hostile work environment allegations, I was removed from my
position and left to languish in an empty office with a few
tasks that a junior administrative employee could complete.
To this day, after 22,000 pages have been turned over by
SSA in discovery and 10 depositions by my attorneys, nothing
has been shown by SSA that I deserved this retaliation.
In July 2014, after blowing the whistle again on Ms. Colvin
for misrepresenting to Congress the success of a $300 million
disability case processing computer system, I finally made the
very difficult decision to retire from government service 5
years earlier than planned, which has caused me significant
hardship.
I would be pleased to answer any questions that the
Committee may have for me. Thank you.
Chairman Johnson. Thank you, Mr. Keegan.
Our next witness is Jose Ducos-Bello. Mr. Ducos-Bello is a
Chief Officer with the U.S. Customs and Border Protection in
Washington, DC. Officer Ducos-Bello has raised concerns about
overtime abuse at the Customs and Border Protection to the
Office of Special Counsel. Mr. Ducos-Bello.
TESTIMONY OF JOSE R. DUCOS-BELLO,\1\ CHIEF OFFICER, U.S.
CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND
SECURITY
Mr. Ducos-Bello. Good morning to all. Chairman Johnson,
Ranking Member Carper, and Members of the Committee, thank you
for inviting me to appear before you today to help you blow the
whistle on retaliation.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Ducos-Bello appears in the
Appendix on page 59.
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I am a former member of the United States Army Aviation and
I served with dignity and honor for over 6 years until
honorable discharge, because during a military operation in
1993, I suffered a severe injury which incapacitated me to
perform my duties for 60 percent of my physical ability to
continue flying.
Of my duties after my recuperation, I decided that I would
like to continue serving the government, as I dreamed when I
was a child raised in Aguadilla, Puerto Rico, next to the Ramey
Air Force Base, where I enjoy watching all those B-52s going
into practice during the Cold War and I say to myself, one day,
I am going to be up there. Well, God gave me that opportunity.
Moreover, I spent a year in Walter Reed in a body cast
recuperating from my injuries, and with the help of my wife and
the physical therapist, I started walking again. And, I am
proven testimony that to this day, I can do law enforcement
work with all my pains and aches.
When I was early discharged in 1995, I immediately took a
position as a U.S. Customs Inspector in San Juan, Puerto Rico,
where I made a lot of good things for this Nation and I
continue serving with bright honor and dignity to this day.
When I joined in 1995, I completed to this day 20 years of
active service with the service that is now the Department of
Homeland Security, U.S. Customs and Border Protection.
Sadly, because I did the right thing, I have suffered
retaliation from the people that I would have expected to have
received support and complete admiration from doing the
honorable thing, because I remember back in 1986, as I did just
now when I raised my hand and swear to tell the truth, I also
swear to protect the Constitution of the United States against
all foreign and domestic enemies. Well, Members of the
Committee, we are dealing right now with domestic enemies,
enemies that have no intention of respecting the Whistleblower
Act and protect the people that do the right thing by reporting
wrongdoing in the government.
I reported the fraud, waste, and abuse of authority of more
than $1.5 billion of taxpayers' money, and all of us in here
are taxpayers, and I am an American citizen and I am proud of
that. And, I am also proud of serving this Nation as a public
servant. All of us are public servants. We are not entitled to
anything but to do our job for future generations so that this
Nation prospers and continues for many years to come. We do not
want to see the United States burned up, like Rome did hundreds
of years ago.
I do not want to say that I am swinging for Republicans or
for Democrats. That is not the issue at hand over here. This is
bipartisan.
My duty from the moment I got this badge and a weapon to
fight for America in a war and two conflicts is to defend the
Constitution of the United States and to kiss Old Glory every
time I can, because that is my pride. That is my legacy to my
children. If I am here, it is for a reason, to leave a legacy
to my children.
And as Senator Carper was saying earlier, we have to
protect the way that we spend Federal funding. Nobody is
entitled to say, ``Well, forget about it. It is the
government's money.'' No. It is my money. It is your money.
Every time you file taxes every year, it is your money.
I have to say that CBP should avoid right now wars that
they cannot win and never raise your flag for an asinine cause
like fraud and corruption. I have been made the villain, the
black sheep, the inconvenient truth to the Department of
Homeland Security, and that has to stop. I know we have many
provisions in our system to protect whistleblowers, but the
agencies, they do not care and they try to cover it up as much
as I can.
My situation is well known. I have been suffering. I lost
my job at the Commission Situation Room. I cannot go back. And,
gladly with the help of the Senate and the Office of the
Special Counsel, I am getting there. I am going to get my job
back, even if it is the last thing I do, because I worked there
for 11 years and I never did anything wrong to deserve what is
coming to me.
I also, with the help of this Committee and the help of the
OSC, I am trying very hard to have the OSC gain more power over
their investigation, because the agencies do not respect the
way they handle their investigation.
And, I want to end with a quote that President Obama, our
leader in charge of this great Nation, when he said,
``Democracy must be built through open societies that share
information. When there is information, there is enlightenment.
When there is a debate, there are solutions. When there is no
sharing of power, no rule of law, no accountability, there is
abuse, corruption, subjugation, and indignity.''
I have been called many things. People laugh about my
accent in Spanish. People might say that I am a colorful
character. People may think that I am just a second-class
citizen. And, I remember Senator John McCain telling me, ``if
you are, Mr. Ducos, a second-class citizen because you were
born in Puerto Rico, then I am right in the bus with you,
because I was born in Panama.''
There is no place in our government, in our society, to
reprise, to discriminate against people that do the right
thing. I am one against many, and look what I did. I am still
standing. I am still here. I have a job. And, I want to do my
job, with your help.
Also, I would like to cite something that helps me go by
every day. Honor is simply the morality of superior men.
Believe that you can do something and you are halfway there.
And, like Theodore Roosevelt said, speak softly and carry a big
stick.
So, in conclusion, and let me find my paper--I have
everything in order here--my professional reputation has been
tarnished in public and social media and my family has suffered
the ill effects to my well being. These are the facts and the
evidence that I have provided to the staff of the Committee. It
will be much more. I will never do my 6 minutes if I tell you
all the retaliation things that my agency has done to me. It is
in writing, and it is accessible to you as evidence.
But more now than ever, I will ensure that all Federal
employees feel secure to report acts of corruption, waste, or
security concerns that can bring grave danger to our national
security. When it comes to Federal agencies committing acts of
wrongdoing, we are not scoundrels. We are the undercover cops
on the lookout to prevent Uncle Sam from being pick-pocketed.
Thank you very much, and I am looking forward to answering
any questions that you may have for me.
Chairman Johnson. Thank you, Mr. Ducos-Bello. Thank you for
your testimony, for your service to this Nation, for your
patriotism. I do not think there is anybody in this room that
does not think you are anything but a first-class citizen.
Our next witness is Mr. Tom Devine. Mr. Devine is a Legal
Director of the Government Accountability Project, a nonprofit,
nonpartisan public interest organization to assist
whistleblowers. Mr. Devine.
TESTIMONY OF THOMAS M. DEVINE,\1\ LEGAL DIRECTOR, GOVERNMENT
ACCOUNTABILITY PROJECT
Mr. Devine. Thank you. The testimony from the last four
witnesses personifies why I have spent the last 35 years
working at the Government Accountability Project (GAP) instead
of getting a real job, and today's hearing is welcome, much
needed oversight for the marathon struggle to turn paper rights
into reality.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Devine appears in the Appendix on
page 67.
---------------------------------------------------------------------------
Working with over 6,000 whistleblowers since 1979, one of
the primary lessons that I have learned is that passing these
laws is just the first step on a very long journey, and today's
witnesses did just a great job of sharing lessons learned based
on their personal experiences. I would like to extend that to
the bigger picture.
And, the first lesson to be shared is one that I think is
pretty obvious, that whistleblowing through Congress can have
the greatest impact, making a difference against abuses of
power that betray the public trust. In our experience, no other
audience comes close.
But, correspondingly, the second lesson is this makes
Congress the highest-risk audience for whistleblowers, and that
is because there is a direct linear relationship between the
severity of the threat posed by a disclosure and the
viciousness of retaliation. Since Congress has more impact, it
is higher stakes in both directions.
The third lesson is that retaliation does not end. After
blowing the whistle, employees face often a lifelong struggle
for professional survival. This is a life's crossroads
decision.
The fourth lesson that I think is worth sharing is that
since the WPEA was passed, creative harassment tactics are
circumventing its mandate. These are very serious challenges.
The most all-encompassing is the sensitive jobs loophole. This
is a national security loophole that would subsume the entire
civil service rule of law that has kept the Federal labor force
nonpartisan and professional since 1883. There has been no
empirical studies or basis for scrapping the Civil Service
System. There is no structure in place for governmentwide
replacement or alternative to it. But, the Federal Circuit
Court of Appeals, the same court that forced passage of the
WPEA, has approved it.
Last Friday, the Office of Personnel Management issued
final regulations. It is full steam ahead. And, under those
rules, the government has uncontrolled power to designate
almost any position as national security sensitive. Once that
happens, sensitive employees no longer have the right to defend
themselves in any kind of hearing. They do not even necessarily
have the right to know what they were charged with doing wrong
in order to lose their designation to work for the Federal
Government.
Now, the Administration has said, well, we are not
attacking the Whistleblower Protection Act, but that is very
disingenuous. The agencies will still have the authority to
present an unreviewable, independent justification for their
actions, even if retaliation is proven, loss of the sensitive
job designation, and that means that, by definition, every
whistleblower will lose a case who has a sensitive job. We can
still have the Whistleblower Protection Act. It will give you
the right to lose and turn the WPEA into a bad joke. Unless
Congress acts, we are on the verge of replacing the rule of law
with a national security spoils system, and taxpayers will be
the big losers.
The second creative tactic that I would like to highlight
is criminalizing whistleblowers. As we have seen from this
morning's testimony, a new tactic is instead of just trying to
fire someone, put them under criminal investigation and then
give them the choice of either resigning or facing a
prosecutive referral. This is very attractive. It is much
easier, much less muss and fuss than litigation. You have to
prepare formal charges and depositions and legal briefings and
hearings and lawyers. All you need is one good investigative
bully.
Second, you cannot lose. The worst that will happen is that
the agency will have to close the case, and then next month,
they can open up a new case on a new pretext. I had one
whistleblower who faced 30 years of serial criminal
investigations. He was fighting bribery in the Chicago meat
yards.
The third factor is the chilling effect of facing jail time
is much more severe than the chilling effect from possible loss
of your job.
The fifth lesson learned is that the Whistleblower
Protection Act is a work in progress. The two most significant
structural reforms for the Act to achieve its premise have not
yet been finalized. GAO must recommend whether, like almost
every other group of employees in the U.S. labor force, Federal
Government whistleblowers will be able to enforce their rights
through District Court jury trials if they do not get a timely
administrative ruling and normal access to appeals courts. The
all circuits review provision of the WPEA is just an
experiment.
Senators, these are the structural cornerstones for the
WPEA to work. The GAO report is due in a year and a half and it
is time for them to get started on it.
The sixth lesson learned is that we are overdue
reauthorizing--on oversight and reauthorizing of the Merit
System Agencies that implement the WPEA, the Office of Special
Counsel and the MSPB. The good news is that the leaders of
these two agencies have really an unquestionable commitment to
the merit system in their agency missions. It would be silly to
challenge their good faith. And in both agencies, their
performance is probably the highest in the history since they
have been created in 1978.
The bad news is this is a very low bar. At the MSPB, while
the full board has been very even-handed, the Administrative
Judges are extremely hostile to the Whistleblower Protection
Act. I cannot honestly tell employees that they have a fair
chance at justice doing an MSPB hearing. And at the Office of
Special Counsel, despite a 600 percent increase in corrective
actions, that has brought us up to 2.6 percent of people who
file complaints there, which means that although they are doing
a lot better, whistleblowers still do not have a fighting
chance at justice when they try to act on their rights under
this law.
The bottom line: The WPEA was a great first step. The
commitment of the agency leaders charged with enforcing it is
an outstanding second step. But, we have got a long way to go
before we achieve the Act's purposes. There is a lot of work,
and thanks for holding this hearing to help us get started.
Chairman Johnson. Thank you, Mr. Devine, for your
testimony.
Let me start by saying, as I was reading the testimony, as
I am listening to it, coming from the private sector, where
when you are at the top of a company, it is always hard to get
the information not filtered so that you really get the truth,
I mean, as I am hearing what was brought to the attention of
superiors, I am thinking you ought to be having medals pinned
to your chest, not have retaliation inflicted upon you.
So, what I would like to ask the whistleblowers here, I
want you to very, hopefully as easily as possible, describe to
me why, why were you retaliated against. I would like to start
with Lieutenant Colonel Amerine. I appreciate you meeting with
me in my office yesterday, because you told me an awful lot
yesterday, which I appreciate. I think I maybe have your
``why,'' but I want you to confirm this.
You told me that in the course of your attempts to gain the
freedom of these hostages in Afghanistan and Pakistan, you were
made aware--it is your belief that the government did pay a
ransom and that ransom money was stolen, and second, that you
believed you were pretty close to potentially having a deal
where we would get seven hostages in exchange for one Taliban
leader, and instead, we got one hostage in exchange for five
Taliban leaders. Is that, kind of in a nutshell, that
information, is that why you have been retaliated against, or
what is the reason?
Colonel Amerine. Yes, sir. I think that there are layers of
this, as I said, in terms of layers of the bureaucracy. On
December 1, 2014, Representative Hunter submitted a complaint
to the IG alleging an illegal or questionable ransom possibly
being paid for Sergeant Bergdahl. There was a good deal of
evidence that it occurred and a lot of questions as to how it
occurred. That complaint implicated both the DOD organization
and the FBI.
So, part of what lit the fuse was the same folks in the FBI
that were basically implicated in the DOD IG complaint of
December 1 were the ones that later complained to the Army that
I was sharing sensitive information with Representative Hunter.
Another aspect of it on the FBI side was, I think, just the
general frustration with Representative Hunter pushing them
hard on civilian hostages and their awareness that I was
speaking to Representative Hunter about all of this. I mean, he
even set up the meeting between my office and the FBI to try to
help them out with some of this, and after the meeting, they
responded by contacting Caitlin Coleman's father and
threatening him not to speak to Representative Hunter again or
he would stop getting supported by the FBI. I mean, just
atrocious treatment of family.
So, the FBI complained to the Army, and for reasons to be
seen, there was a bit of a debate within the Army whether I
actually did anything wrong. My understanding is one party,
who--I just do not want to be speculative, but there was a big
debate within the Army over whether I did anything wrong, and
that led to the investigation.
Chairman Johnson. Can you tell me a little bit about what
deal you thought you had for the release of the hostages?
Colonel Amerine. So, my office worked options. We looked at
a whole variety of options. One of the options that we
developed, we called it the one-for-seven option. It entailed
six hostages and a seventh person I would just rather not
discuss today. So, the six hostages--it was actually five
hostages and a prisoner of war. So, Sergeant Bergdahl, Caitlin
Coleman, the child she bore in captivity, Josh Boyle, and Colin
Rutherford. When we saw that nobody else was trying to get them
home, we were working every initiative possible.
One was the one-for-seven, and in that, we were looking at
Haji Bashar Noorzai. He was described as the Pablo Escobar of
Afghanistan and we realized that he actually was just another
warlord. He was actually an ally of the Karzai regime. We lured
him to the United States under a false promise of safe passage
and basically unsealed an indictment and put him in jail for
life. Some felt he was a wretched human being and others felt
he was wronged.
As we looked at the options, we looked at five-for-one,
which we thought had died in 2012, as the worst option, and so
for us, it was we are not getting Bergdahl, let alone the other
hostages, back for free. Every option was going to be painful.
So, the Noorzai option, for us, was one that was at least less
painful. So, we were able to reach out to the Noorzai tribe
itself that we believed could free the hostages and we made a
lot of progress on it. I briefed it widely, but in the end,
when the Taliban came to the table, the State Department
basically said it must be the five-for-one, that is the only
viable option we have, and that is what we went with.
Chairman Johnson. So, I can see how members of the
government, if there was an option for seven--for six Americans
for one Taliban and the deal ended up being five Taliban for
one American, they probably would not want that too highly
publicized, so--OK. That makes sense to me.
Ms. Taylor, can you, again, try and encapsulate it pretty
concisely in terms of why. Who was threatened? What was
threatened?
Ms. Johnson. I think with regards to who was involved in
the investigation--I think that because of the people that were
involved with the investigation, it maybe put a different light
and there was a lot of extra outside influences and kind of
back and forth with the different members and different
agencies. So, we are all kind of--as police officers, the last
thing you want to be is listed as a whistleblower, and you
usually ride the wave and you keep your head down and your
mouth shut, and I actually did that in this case until I was
contacted by the Inspector General's Office, and we are
required to cooperate with them and I did, and I think breaking
that silence kind of--I mean, I had everything in a 12-year
career thrown at me and a lot of stuff that was not factual.
So, I think there were a lot of issues surrounding that as far
as the retaliation.
Chairman Johnson. Briefly, because I do not want to lose
this thread, you said as an investigator, the last thing you
want to be known as is a whistleblower. Is that because it is
well known, the retribution, the retaliation?
Ms. Johnson. Well, there is a brotherhood. You do not want
to see your colleagues hurt. And in this case, I do not see a
lot of corruption or a lot of problems at the agent level. What
I have seen is some significant problems at a leadership level,
and that is not to get anybody in trouble. I think one family
in DHS being hurt is enough. I just think there needs to be
some corrective action. And, I lost my train of thought. Did
that answer your question?
Chairman Johnson. It does. Thank you, Ms. Johnson. Senator
Carper.
Senator Carper. Thanks, Mr. Chairman.
Again, our thanks to all of you for being here and for
sharing your stories with us.
On Veterans Day, I went up and down the State of Delaware,
and there are any number of places where we met with veterans,
young and old, their families, families of people who died
serving our country, and it was just a wonderful uplifting of
their service. One of the things that Delaware is noted for, we
are the first State to ratify the Constitution, and one of the
gatherings that we had was in Dover, Delaware.
The Constitution of our country was first ratified in
Dover, Delaware, a place called the Golden Fleece Tavern, on
December 7, 1787, over 200-and-some years ago. And, at that
particular event, they actually closed down the streets, the
main streets in town, the intersection of State Street and
Loockerman Street, and we had hundreds of veterans and their
families, like, all in a big circle around the intersection.
And, we were gathered about 200 yards from where the Golden
Fleece Tavern once stood, where the Constitution was first
ratified on December 7, 1787.
And, I invited the folks that were there that day, as I
invited people in other assemblies that day, on Veterans and
Memorial Day, I invited them to join me doing something that a
lot of us did when we were kids in school, and that is to
recite the Preamble to our Constitution. I did not expect them
to know it verbatim, but I would read a few words and they
would repeat them until we finished the Preamble. We did this
up and down the State. I love doing it, and I think people
enjoyed it, as well.
But, you recall the Preamble to our Constitution starts off
with these words, ``We the people of the United States, in
order to form a more perfect Union.'' Think about that, ``in
order to form a more perfect Union.'' It does not say, ``in
order to form a perfect Union,'' but a more perfect Union.
And, for me, one of my core values, and perhaps one of
yours, is everything I do, I know I can do better, and the
folks who wrote that Constitution, and it was ratified on
December 7, 1787, down the street from where we gathered on
Memorial Day, they realized it was not perfect, and they
realized with future generations, we had to do better, and
better, and better.
As Mr. Devine notes, we have been working at this for a
while with respect to whistleblower protection. My recollection
was the Whistleblower Protection Act was first adopted in the
1980s. I do not recall who was President, who signed it into
law. Do you recall?
Mr. Devine. Yes. President Reagan was in office when
Congress first passed it, but President Bush was in office when
the law was finally signed.
Senator Carper. There we go. Thank you. But, we have been
working on this for a while, and we were working on it in 2012
with the Whistleblower Protection Enhancement Act, which I
supported and a number of us supported, signed into law by our
current President.
I want to ask you, if you would, Mr. Devine, thinking about
the enhancements that we adopted in 2012, why they are an
improvement over what existed before that, and while there is
still more that we need to do, could you just walk us through a
few of the further changes that you believe are needed, and
just give us a couple of real life examples of how those
changes would improve whistleblower protection.
Mr. Devine. Thank you, Senator. I think the most
significant are following through and completing the structural
reforms that will provide an adequate foundation for these
rights to be implemented. Congress had to pass the law four
times because there was not normal access to appeals court in
the one court that handled all the cases. It happened to be
extremely hostile to the law and that lack of healthy
competition was an Achilles' heel.
The WPEA structurally solved that for a 5-year experiment,
normal access to appeals courts, and that needs to be made
permanent. It is the case with every other whistleblower law on
the books, except the Military Whistleblower Protection Act,
which has no judicial review.
The second structural reform is if there is not a speedy
administrative ruling, like all the corporate whistleblower
statutes, being able to start fresh then in court and have
justice determined by a jury of the citizens that
whistleblowers are purporting to defend when they risk their
careers. This District Court access is particularly
significant. Get the politics out of these cases when it is a
politically charged dispute or an extremely high stakes one, or
when it is highly complex or technical and you need the
resources of the District Court. The MSPB was set up to resolve
office disputes, not to deal with major issues of national
policy.
With respect to the administrative agencies, I think that
there needs to be some very intensive training of the
Administrative Judges at the Merit Systems Protection Board.
The No FEAR Act says that we have to train all the government
managers and bureaucrats in what the rights are in these laws.
The people who are conducting the hearings, in the
administrative hearing, they need to get up to speed on this
law, too, and unfortunately, the decisions have been very
uneven.
At the U.S. Office of Special Counsel, I think the area
that Congress could--besides just oversight, which is always
healthy--the area where Congress could make the most difference
is by giving them the authority to issue stays for temporary
relief. In my experience, the most significant factor, whether
we have sort of a long-term marathon nightmare or whether the
agencies decide to get serious and have a resolution that both
sides can live with and move on from, is whether there is
temporary relief. If there is not, the agencies just starve out
the whistleblower. That will make a huge difference.
Finally, those issues of the national security loophole and
retaliatory investigations, which threatened every witness this
morning but for which they have very uncertain rights under the
WPA, that is sort of the menu of work to be done.
Senator Carper. All right. Thanks for all of that.
Several of you today are wearing uniforms. Others have worn
them. Some Army, Navy, and Mr. Ducos, what branch of service
did you serve in?
Mr. Ducos-Bello. My branch of service, the Department of
Homeland Security. The component is U.S. Customs and Border
Protection.
Senator Carper. When you were on active duty with the
military. I thought I understood you to say that you served on
active duty.
Mr. Ducos-Bello. Yes. The United States Army Aviation.
Senator Carper. Good. Thanks. I spent 5 years in Southeast
Asia and another 18 years in a cold war. I was a Naval flight
officer on active duty and later reserve duty, retired Navy
Captain, and Commander in Chief of the Delaware National Guard
for 8 years when I was Governor. I have huge respect for you,
particularly those of you who have worn those uniforms, and
thank you for your service in that regard.
Mr. Ducos-Bello. Thank you, sir, and the slogan back then
really helped me a lot. Be all you can be.
Senator Carper. That is good.
Mr. Devine, just take a minute and tell us with respect to
how we treat whistleblowers who are civilians as opposed to
those that are military personnel, just give us a minute on
how--since we have both civilian and military personnel on our
panel today, and I know you work with both, can you just
briefly discuss the differences between whistleblower
protections for the two, just briefly.
Mr. Devine. Yes, sir. The Military Whistleblower Protection
Act is the lowest common denominator in the U.S. Code for
accountability through whistleblower protection. The key
differences between the civilian and military law is, first,
that the military law does not have the fair burdens of proof
that have given whistleblowers a fighting chance in their
hearings.
The second is that there is no right to an administrative
due process hearing. Everything is enforced by the Department
of Defense Office of Inspector General. GAO has repeatedly
condemned their work as inadequate, and again, we get numerous
whistleblowers from that unit whose disclosures are that it is
operating as a plumbers unit to help finish off the people who
seek help there. It is a very severe problem. We need due
process.
And, finally, there is no judicial review there. There is
some outstanding legislation which is the Service Members
Justice Act, which has been introduced by Senator Boxer, joined
by Senator Grassley, and vetted by all the whistleblower
support organizations that could even the playing field and we
think that it is outstanding.
Senator Carper. Good. Ms. Johnson, Mr. Devine just
mentioned Senator Grassley's name, and I would just share, Ms.
Johnson, this is really pertinent to what you said earlier. For
years, the Department of Homeland Security has called on the
Congress to make changes in the EB-5 program, a well intended
program, but a flawed program. Earlier this month, Senator
Grassley and Senator Leahy introduced legislation that actually
reflects the changes that the Department and the agency has
actually been asking us to do, so I am encouraged by that.
Ms. Johnson. I saw that, sir. I think that is great.
Senator Carper. Yes. Thank you.
Chairman Johnson. Thank you, Senator Carper.
Next is Senator Ernst, because she is almost always here on
time--probably always on time---- [Laughter.]
And a very faithful attendee of these hearings, which I
truly appreciate.
OPENING STATEMENT OF SENATOR ERNST
Senator Ernst. Thank you.
Chairman Johnson. So, Senator Ernst.
Senator Ernst. Thank you, Mr. Chairman. Thank you, Senator
Carper, Ranking Member.
Ladies and gentlemen, thank you all for being here today. I
appreciate it so much. And, Colonel Amerine, I do want to take
just a moment and thank you very much for your service to this
Nation and to all of you, as well. But, you have been in some
very difficult circumstances and I do appreciate you being here
today.
As someone who has served, I do take this very seriously in
my new role as a Senator and as someone who has made a
commitment to protect our men and women that serve in the
United States Armed Forces, whether they are still serving in
uniform or whether they are veterans from eras of the past. So,
whether it is through proper medical care through the Veterans
Administration (VA), or whether it is in your circumstance, we
will make sure that that is a priority.
I will take just a little bit of issue with your testimony.
In here, sir, you say that you have failed, and you have not
failed. I will never accept that, because what you have done is
raise an issue that is extremely important to this Nation and
in making sure that we receive those hostages back. So, you
have not failed. We have just not yet succeeded. So, that day
will come. We will make sure that that day comes.
So, to you, thank you so much for all of your efforts and
we will continue working on this. I look forward to working
with you, Senator Johnson, on some of these very specific
issues, especially with the good Colonel.
To the rest of you, I do want to ask very briefly--my time
is very limited here today--but, those of you--I know you have
recent cases, but have there been any repercussions for those
who have come after you and retaliated against you? Have you
seen any correction from that end, if you could just briefly.
Mr. Ducos-Bello, if you would please start, just very briefly,
have you seen those that retaliated against you being
disciplined?
Mr. Ducos-Bello. Well, my retaliation started back in the
end of 2012 and to this day is ongoing. I was disarmed for no
reason, like my fellow law enforcement officer here, illegally.
They turned every single stone that they could find during my
20 years' career and they could not find anything. My review
performance is fully successful throughout the years. I do not
have this because somebody gave it to me as a gift. I earned
them. This one is the Blue Eagle Award that I received for
meticulously searching and researching a container coming from
Colombia with 8,000 pounds of cocaine. And when I was in the
field, I was very diligent doing and discharging my duties.
And, I moved up the chain of command the right way, not by
making a network of friends, but by earning my rank, my
position. And to this day, the agency has treated me with no
respect. For the past 6 months, I have been sitting in a
folding chair with no desk, no duties, no program to manage,
nothing. I just show my face for 8 hours and all my talents are
going to waste.
Senator Ernst. But no correction on----
Mr. Ducos-Bello. No correction. They are fixated in that
they have not done anything wrong, that as a whistleblower, I
committed the worst crime to CBP by taking the administratively
uncontrollable overtime (AUO) away from the Border Patrol and
the CBP officers that changed their series from 1895 to 1801 in
order for them to be seduced by the Border Patrol in drawing
that AUO with this in legal. Now, you tell me, I am an 1895,
abide by the Constitution to obey and discharge the law. How
come, in less than an hour in the Library of Congress I came
upon the regulations and the law that governs the use of AUO,
and for those who do not know what AUO means, it is the
uncontrollable overtime that they draw at 20 percent, 25
percent of their yearly salary.
Senator Ernst. And thank you. I would like to go ahead and
move to, just very briefly, to some of the other members on our
panel. Thank you----
Mr. Ducos-Bello. Yes, ma'am. You are welcome.
Senator Ernst [continuing]. Very much for being here today.
Mr. Keegan.
Mr. Keegan. Thank you, Senator. I have absolutely no
knowledge that there has been any accountability repercussion
in any way involving senior leadership at the Social Security
Administration. I can very quickly characterize this in two
areas. If you recall from my testimony, I testified that my
supervisor, Mr. Spencer, actually testified at deposition under
oath that he could not uncategorically agree that
misrepresenting facts to Congress was not ethical.
The second thing I would tell you is that there is a
mentality at the Social Security Administration, which I
witnessed in many senior level meetings, concerning bad
information stays in the house. We do not air our dirty laundry
to Congress. We protect our leadership at all costs.
And, third, I would just say, in my 44-year career in the
military and private sector and as a senior executive for
agencies, the Social Security Administration has the worst
track record of accountability and taking responsibility for
their actions that I have ever seen, and I do not mean that in
a flippant manner, Senator, but I mean that sincerely.
Senator Ernst. Thank you.
And, Ms. Johnson.
Ms. Johnson. I will keep mine very short. There has been no
corrective action.
Senator Ernst. OK. I appreciate that.
And, Colonel Amerine, yours is a very special case. Any
specifics that you would like us to know?
Colonel Amerine. No, ma'am.
Senator Ernst. OK. Thank you very much for your testimony
today.
Thank you, Mr. Chairman.
Chairman Johnson. Thank you, Senator. Senator Portman.
OPENING STATEMENT OF SENATOR PORTMAN
Senator Portman. Thank you to Chairman Johnson and to
Ranking Member Carper for having the hearing, and mostly to
thank you all for being here and being willing to share your
sometimes very personal experiences and troubling experiences.
I saw Mr. Devine's testimony before I came in today, and he
repeated it in his remarks. He said, this is one of your
highest-risk audiences, so I hope that at the end of the day,
you are happy you shared this information with us and we do not
end up being a high risk to you for speaking to the U.S.
Congress, your elected representatives, because we need the
information. This Committee, in particular, is an oversight
Committee, so our job is to ensure that the government works
better for all the taxpayers, hard working taxpayers out there
that we represent. So, it is really important you are here
today to talk about the broader policies issues as you have,
but also to put some context around it, what really happened to
you.
And, to your responses a moment ago from Senator Ernst as
to what actually has happened that has changed in the
departments, it is discouraging. I do think, Ms. Johnson, that
the legislation that you mentioned earlier affirmatively, you
said you thought that was a good idea to move forward on some
reforms, indicates that maybe Congress is able to move on some
legislative changes, and I want to talk about that for a
second, if I could, and maybe start with the military side.
There has been some discussion--Mr. Devine was asked about
the military whistleblower protections versus other departments
and agencies. He said it was the lowest common denominator. We
talked about no judicial review. We talked about the burden of
proof is the lowest common denominator. He was concerned about
lack of a due process hearing.
One of my concerns is about what the GAO has said. In May
of this year, they issued a report, and it was about
investigations into retaliation complaints from military
whistleblowers. It said they took three times longer than the
legal requirement of 180 days. So, that alone, it seems to me,
indicates that we have got a problem on the military side.
It also talked about the chain of command issue, that
service members are required to report wrongdoing outside the
chain of command, but that that conflicts with other military
guidance and that sometimes that is very difficult, therefore,
to go outside the chain of command and to have an independent
process.
And, so, I guess, if I could, Colonel Amerine, to you, the
IG responded to the GAO report by saying that they concurred
with the recommendation and they were committed to, and I
quote, ``requiring service investigators to attest in writing
that they are outside the immediate chain of command of both
the service member submitting the allegation and the individual
or individuals alleged of taking retaliatory action.'' Is this
attestation requirement for whistleblower investigations
sufficient to ensure independence from the chain of command, in
your view?
Colonel Amerine. I believe it is. I mean, the DOD IG has a
very difficult job, and their treatment of me as I filed a
whistleblower retaliation complaint with them was first class.
It is a slow process, but I have not hit the six, the 180 days
yet. So, the investigation is ongoing and they are working it
as hard as they can.
Senator Portman. Well, I am glad to hear that in your case.
And, in terms of the complaints that have taken almost three
times longer than the legal requirement of 180 days we talked
about, why do you think that is, and what should the IG do to
respond to that, or what should we be doing legislatively in
terms of the overall structure of the military side of
whistleblower retaliation?
Colonel Amerine. Yes, sir. I mean, some of that is beyond
anything I claim expertise in, so I have to kind of scope it
down to what I am seeing. I mean, in my case, I had a
retirement date of June 1 that everybody was aware of. The DOD
IG reviewed my complaint that included the information that
supposedly was a security violation to Representative Hunter,
and through the Joint Staff, the DOD IG determined that my
complaint was not classified, which would pretty much mean the
information I spoke to Hunter about, which by design was meant
to be unclassified, was actually unclassified.
Senator Portman. And it was the FBI that had said that they
thought it was classified, correct?
Colonel Amerine. Right. The FBI filed the complaint, and
even in a session with Representative Hunter basically said
that, well, we had to put him in his place. I mean, they felt
that it was one of those things where it was a shot across the
bow. Well, they did that with a criminal allegation. So, they
kind of underestimated the effect of telling the Army that I am
leaking secret information and that led to the situation I am
in right now. I mean, on the positive side, the calamity
allowed me to share with you aspects of the broader dysfunction
I was dealing with.
But, in terms of resolving this, it should have been
resolved with a simple conversation. Before the FBI complaint
even hit, I notified my chain of command what was coming and
they told me, yes, you did nothing wrong. And then somebody
more senior, for unknown reasons to me, demanded this be
thoroughly investigated. OK, that is fine. But in 5 months,
nobody has spoken to me about what actually occurred.
And, that is where I think you run into the issue, is the
only organization that, to me, is actually kind of effectively
grinding through this so far is DOD IG. I mean, everything they
did, I felt was first class, regardless of how they ultimately
conclude this in the end. But, them getting out to interview
everybody involved is very difficult, because they will
approach someone, and in the interview, who is going to
incriminate themselves?
So, I mean, I think the DOD IG just has an enormously
difficult task and the time lines are the things that, really,
they have to be enforced. A-hundred-and-eighty days is actually
kind of hell for somebody trying to retire from the military
and start a new career, but from what I have seen, I understand
why it is 180 days.
But, the chain of command on top of that needs to have a
role in this where I do not understand why, when the Army heard
that there is an allegation of me speaking to Representative
Hunter, they did not think that maybe they ought to dig into it
a bit before they started criminal charges. And when they
deleted my retirement, they can only do that with an eye toward
court martial. So, basically, all I could take away from this
is they are seeking to court martial me under allegations of
sharing sensitive information with a Representative on the
House Armed Services Committee. I mean, it is utterly
ridiculous, in my mind, but, obviously, I am the criminal in
this case. So, to me, the chain of command really should have
stepped up and realized that they needed to handle this a
little bit more smartly than basically going after me with a
CID investigation.
Senator Portman. And had a conversation with you at the
outset, which you indicate they did not have? They did not ask
you, is that accurate?
Colonel Amerine. My chain of command never spoke to me. The
only time I was spoken to was on January 15, when this began,
when I was told that I would be escorted out of the Pentagon
because I am under criminal investigation.
Senator Portman. Thank you, Colonel.
We have discussed today the IGs. We have also discussed the
Office of Special Counsel, and I have very little time
remaining, but just quickly maybe, Ms. Johnson, you could talk
to us about your experience with the IG. Has the Inspector
General been responsive to your concerns?
Ms. Johnson. Yes, they have. Two investigations have been
opened. I am not really at liberty to talk about that. But,
they were able to open an investigation into the personnel
actions and the whistleblower complaint in addition to some
other investigations related to that criminal investigation.
They have a lot more authority as far as subpoena powers
than, I think, the OSC. In my case, the OSC had a really tough
time getting my agency to kind of cooperate with the documents,
giving them what would make them look good versus what was
actually requested.
The OPR system, for us, at least, at the DHS level was
awful. It is my opinion that that needs to be made a permanent
14 in SAC LA. The Assistant Special Agent in Charge (ASACs),
the RAC, and the SAC are all agents from Los Angeles under SAC
Los Angeles. So, for me, going through that OPR process on the
numerous allegations that came up after this EB-5 and it was an
awful process. It was the SAC communicating back and forth.
But, the OSC was eventually good at finding that, and so was
the OIG, and seeing the communications and the conflict of
interest.
The IG was probably above and beyond the best one so far as
far as investigating.
Senator Portman. So, OSC was helpful in trying to figure it
out, but they did not have the--you mentioned the subpoena
powers. They did not have the authority to get the information
in a timely basis, whereas the IG was able to be a little more
effective.
Ms. Johnson. Right. They kept running into walls.
Senator Portman. Yes. Well, my time has expired. Thank you
very much, Mr. Chairman, and I appreciate again all you all
being here and being willing to testify before us today.
Ms. Johnson. Thank you, sir.
Chairman Johnson. Thank you, Senator Portman.
Mr. Devine, in your testimony, again, I was looking at
these laws ahead of time, and for me, it started back in 1978,
and I guess it is with the Civil Service Act. But, in your
testimony you enlightened me that, no, it really started with
the Lloyd-LaFollette Act in 1912. And, you said that it was an
anti-retaliation law that created a no-exceptions right to
communicate with Congress.
Mr. Devine. Yes.
Chairman Johnson. This is really the point we are talking
about here with Lieutenant Colonel Amerine. He has an absolute
no-exception right to communicate with Congress. What has gone
haywire? In particular, the question I asked earlier is I keep
asking myself why. Again, coming from the private sector, I am
always--especially at the top of the organization--I am always
looking for individuals to let me know what is going on so I
can actually address problems. So, again, we should be pinning
medals on these people's chests as opposed to retaliating
against them. So, tell me a little bit about that Lloyd-
LaFollette law. But, also, is there some very common, very
universal answer to the question, why?
Mr. Devine. The Lloyd-LaFollette Act is an excellent
principle, but it is hampered because there is no procedure to
enforce it and there are no remedies even if you found a
violation somehow. So, it is just basically a symbolic law and
it has been waiting a long time to get some teeth in it.
As far as the more fundamental question, I have asked
myself that for a long time, Senator, and I think my own
insights are that the Federal agencies and some private
organizations, too, behave this way almost as the institutional
equivalent of an animal instinct. An animal's instinct is to
destroy anything that threatens it and organizations behave the
same way. In fact, I do. When somebody slugs me, I do not
think, you know, maybe there is a lesson to be learned from
that and we should talk this through. What is the cause of it?
I want to flatten that person who attacked me because I am
angry, they hurt me, and because I do not want to give them a
chance to do it again.
This is the way institutions react to whistleblowers. Snuff
out the threat. And, it is unfortunate. It is very short-
sighted. Whistleblowers are like the bitter pill that keeps you
out of the hospital. It is bad news in the short term, but it
can be important for your survival. You have got a whole cliche
on it. Do not kill the messenger.
Chairman Johnson. Again, that is awful general. As I
listened to the four witnesses here, in my mind, I can at least
assume some specific-wise. Somebody being protected, some piece
of information that we did not want to have disclosed, like for
Lieutenant Colonel Amerine, the fact that there really was
potentially a deal of seven Americans for one Taliban, that
there might have been a ransom paid that was stolen.
I am going to get back to the other witnesses to find out
their specific ``why,'' but, I mean, is it not--again, I am
looking for your knowledge, because you have been dealing with
this a long time. Is it protecting an individual or people in
power?
Mr. Devine. Part of it is the structure of the
communications. When a whistleblower works up through the
organizational chain of command, sooner or later, you reach
someone who is, maybe is responsible for the wrongdoing and a
conflict of interest kicks in by someone who has power over the
messenger. That is why it is so important that when there is
that conflict, when it is not just a mistake that everybody
wants to fix but somebody is engaged in wrongdoing, that they
have safe, clear access to Congress to circumvent the conflict
of interest and get some independent response to their
concerns.
Chairman Johnson. Well, again, that is why we set up our
[email protected], just throw that plug out
there. And, of course, I am assuming the four individuals here
will have some measure of protection by coming public and
showing courage.
Mr. Keegan, I would like to kind of pick up with you
specifically. Again, can you point to a ``why,'' and then I am
going to ask the other whistleblowers, what does it cost you? I
understand in terms of this type of retaliation there is
reputational harm. That is a cost. It is a grave cost. Having a
hostile work environment in all kinds of ways. Sitting on a
folding chair, not having a desk, all those types of things.
But, I want the dollar cost. I really want you to let us know
how has this cost you financially.
But, first, Mr. Keegan, I wanted to give you the
opportunity of why in your case.
Mr. Keegan. Why I think it was done?
Chairman Johnson. Yes. I mean, was somebody trying to
protect themselves? Was it just this general, overall, we want
to protect the Social Security Administration?
Mr. Keegan. Well, I believe, Senator, having sat in a
number of high level meetings at Social Security in the months
prior to this debacle that happened to me, Acting Commissioner
Colvin was in the beginning stages of believing she was going
to be nominated and then finally being nominated. In at least
three meetings, the Chief of Staff, James Kissko, Ms. Colvin's
No. 2 person, made the statement that nothing is going to leave
this agency that is going to embarrass Carolyn Colvin. I cannot
make a direct connection between that and what happened to me,
but it certainly seems to make some sense to me.
In answer to your question of what it cost me, I had a 44-
year career military, 12 years in the private sector, and 12
years in Senior Executive Service (SES). I had nothing but
outstanding performance ratings, awards, and promotions until
my very last performance review at the Social Security
Administration, which capped off my 44 years and basically
destroyed everything that I had worked for in my career.
It practically cost me my marriage, to be perfectly frank,
because one year of sitting in an office staring at four walls
and watching the clock tick, being a very high energy, results-
oriented person, for me was a death by a thousand cuts.
What it cost me financially, I finally just could not take
it any more and I retired. I retired 5 years early. I was not
financially prepared to retire, and I have not been able to get
a job consistent with my background and my experience for two
reasons. One, I cannot get a reference, and No. 2, how do I
explain on a resume how I went from a senior member of the
Senior Executive Service to a non-supervisory advisor with no
responsibility, no accountability, and no duties? I think the
cost--I think my wife would tell you, Senator, the cost has
been inordinate and enormous.
Chairman Johnson. OK. Thank you. Mr. Ducos-Bello.
Mr. Ducos-Bello. Thank you. For me, the biggest cost has
been watching my son trying to jump out of his high school roof
because he saw his father lost his uniform, his weapon. He has
always been very proud of my career and the way I performed my
duties, not only at work, but off duty. I have raised three
excellent children. But, it was the most costing and
emotionally devastating thing that I had to do, receive that
phone call that no father wants to receive, that your son is on
the roof of his high school getting ready to jump because his
father is going through a whistleblower retaliation action.
Luckily, I was there. I got in time. The police were there
and the fire department was there with the jumping blanket. He
finally jumped and he was held by Montgomery County Police and
he would not let anybody arrest him. He has to be arrested by
his father. And, with great pain, I picked my son, who is
autistic, to come down to the office, put the handcuffs on him,
and took him to the patrol, and then I followed in my vehicle
and spent 2 days in the hospital talking to him that my problem
was going to be resolved eventually, that patience will pay
off.
Financially, it has cost me over $41,000 in lawyers' fees
just to keep my job. I am in that up to my neck, but as a
responsible citizen, I pay all of them and waiting, hopefully,
that one day I can be compensated for all the troubles that
financially I have put myself into because I did the right
thing.
Chairman Johnson. OK----
Mr. Ducos-Bello. This is very hard for me. I mean, I am
reliving something that no father wants to relive. But, it has
put a strain, like Mr. Keegan said, put a big strain on my 26-
year marriage. But, luckily for me, I have a very supporting
wife that I can talk to. I used the Employee Assistance Program
(EAP), went to therapy and talked to a counselor and she told
me, ``You have not done anything wrong. You should be proud of
yourself.''
And, why did we create this new enhancement Whistleblower
Protection Act in 2012 if we are not going to clear the air and
punish the guilty and protect the whistleblower?
Chairman Johnson. OK. Thank you. Ms. Johnson.
Ms. Johnson. Yes, sir. I think a few things that folks
said, just kind of about protecting people in power. The
Lieutenant Colonel here, just having a little bit of common
sense and starting a conversation could just--there was not
that communication there. And, I think, ultimately, as far as
reasons, it is protecting people. It is maybe our leadership
not having the courage to kind of stand up and say, OK, these
are our people. We need to take care of them. It is supposed to
be a family. And, that is not all their fault. There have been
a lot of people with the merger, and, we are all dealing with a
number of things.
Chairman Johnson. OK. Again, I was looking for the cost. I
mean, what----
Ms. Johnson. Oh, I thought you said the cause. I am sorry.
Chairman Johnson. Oh, I am sorry. Cost.
Ms. Johnson. I apologize. There is always that financial
cost with legal fees. I had a great job, so I adopted my two
little girls. So, I have two older ones from my first--so, I
have four kids, and I am in the middle of an adoption. My
salary was affected. I did not get a step increase. So, not
only did I add two kids to my household, but I did not get my
increase. They finally did fix that.
But, the phone calls. There is a huge expense just to being
an active member of your family. I mean, the joy is kind of,
like, sucked out of your life. I am pretty fun, and I like to
work hard and go home and play hard. You lose a little bit of
that, because it really just sucks it out of you.
Chairman Johnson. OK. Thank you. Lieutenant Colonel.
Colonel Amerine. I mean, for me, I had to burn 2 months of
leave that I had intended to use for retirement leave, so that
was about $18,000, because initially when my security clearance
was suspended, they moved me out of a ``top secret'' facility
to put me in a ``secret'' open storage facility, where my
presence in and of itself would have represented a security
violation while I am under investigation for a security
violation.
So, I mean, I took 2 months' leave just to get out of there
and to not potentially further incriminate myself, and then
thanks to my JAG, Lieutenant Colonel Bill Ruhling, I was able
to finally get assigned to a position where I would not be
committing a security violation by going to work.
There are some legal fees. We will see how far that goes.
But, I mean, the broader cost to me is what it shows the
younger soldiers and officers in the Army. I mean, we always
have difficulty with our junior officers and our junior
noncommissioned officers, showing them that remaining in the
military, working your way up the ranks is something you ought
to aspire to do. And, I mean, here are all these officers that
I knew as cadets that are seeing what is happening to me and
the example set for them is terrible.
And, what does it do to the Army? The Army is killing
itself with things like this. When you go after people who are
reporting significant issues and crimes, when you go after
people who are whistleblowing, although I still loathe the
term, you end up setting a terrible example for all the other
people that are seeing the retaliation. So, that is the cost to
me that matters, is what it is doing to my Army.
Chairman Johnson. Thank you, Lieutenant Colonel. I think
that, really, is, in the end, the final answer of why. Whether
it is organizational or it is protecting somebody else, it is
really trying to make an example of somebody so the next person
does not step forward. Is that not kind of the bottom line?
Senator Carper.
Senator Carper. Again, thank you so much for being here,
for sharing your stories with us, and again for your service,
past and present, to our country.
Several of you said things that reminded me of a sad
chapter in our State last week when we buried the son of Joe
Biden and Jill Biden. And, Joe Biden has this saying that I
have heard him use any number of times when he has spoken at
funerals, and he has said, talking to the family of the
deceased, that his hope was that the day would come when the
thought of that individual would bring a smile to their face
before it brought a tear to their eye.
Now, several of you said the word ``whistleblower'' is not
a term of endearment, and my hope is that you live long enough,
and we do, too, that just like Vice President Biden talked
about the thought of a loved one bringing a smile to the face
of the surviving family members, my hope is that in the future,
people in our government, in our country, when they hear the
term ``whistleblower,'' that it will bring a smile to their
face before it brings a tear to their eye. So, that is one
thing.
The second thing I want to say, I want to go back to Dover
Air Force Base. Dover Air Force Base is one of the finest Air
Force bases in the world. Some of you have been there, and they
are one of the best--they are maybe the best airlift base we
have in the country, in the world. And, they had a sacred duty
there that involved not so much airlift as it did a mortuary
and receiving the bodies or the remains of our fallen heroes.
And, there were things that were going on in that mortuary
that were inappropriate, that were wrong, and there were some
of the folks who worked there knew about it and tried to get it
changed from within, were not successful, and they ended up
going outside. They came to our office, our Senate office, and
we were not sure initially that this--they were credible, but
they won us over. They convinced us that they were there for
the right reasons.
The Office of Special Counsel got involved, and I want to
tell you, I was impressed. Going into that, I did not know a
lot about the Office of Special Counsel, but they were like a
dog with a bone trying to make sure that justice was done.
And, I go to the Air Force Base a lot. It is an important
constituent of ours, of our delegation. And, one of the last
visits, I went over to the base last year--I have been there
since--but I went back to the mortuary. It is an incredible
facility. Some of the hardest work that is done by anybody I
have ever served with in the military was the work that folks
did there with the remains. If you have ever been there, it is
incredible work they do. I applaud them for the work that they
do.
But, some people thought it did not adhere to the high
standards that they should have. But, I went back to the
mortuary last year, and when I walked in, the first couple of
people I saw were the whistleblowers. And, I looked around to
find the colonel who used to run the place. Long gone. And, I
looked around for the civilian personnel who reported to the
colonel. Long gone. And, who was running the place? Well, the
team that included the whistleblowers, more committed than ever
to doing the right thing.
Mr. Devine, I want to ask you, talk a little bit about the
entity, the counsel, the Special Counsel that actually got
involved in this case in Dover. I am sure that is not the only
instance where they did the Lord's work and made sure that
justice was done. But, talk about the work that they do
throughout the government. In this case, it was in a military
installation. Just talk about the work that they do and how can
we help them do a better job.
Mr. Devine. Well, they have made the--I think the Office of
Special Counsel is probably the best agency in the Federal
Government for whistleblowers to seek justice. As we say, it is
a low bar, but they are doing their best there. And, it is
particularly impressive, because just 4 years ago, they were
coming out of chaos where they were the subject of FBI raids
and the previous Special Counsel was convicted of criminal
misconduct. So, they have come a long ways.
The areas where we are the most impressed with them are
their alternative dispute resolution, which is probably the
most effective unit in the Federal Government at making a
difference and getting speedy resolution with just results for
whistleblowers. They have been very aggressive in using their
new authority under the WPEA to file amicus curiae briefs,
friend of the court briefs, that have been outstanding. They
have increased their corrective actions significantly there.
They have overhauled their Disclosure Unit for whistleblowers
who try and make a difference so that it is much more employee
friendly and can hold the agencies accountable for following up
and acting on the problems that are confirmed. Those are all
very positive developments.
We think that they can do better in their Complaints
Examining Unit. The quality of the reviews for screening these
cases for investigation is extremely uneven, in my experience,
in reports that we receive. We think that they need to go for
stays, temporary relief, more frequently. That has actually
been going down slightly in recent years, and that is the
single most important factor that there is for whistleblowers
to get an acceptable ending.
And, finally, we think they need to actually litigate some
cases. The OSC has told me that, well, the reason they do not
litigate is the agencies always surrender whenever they
recommend corrective----
Senator Carper. The agencies what?
Mr. Devine. They have said that they never really have a
chance to go to trial and defeat a retaliation case because the
agencies always surrender.
Senator Carper. Oh, OK.
Mr. Devine. I think maybe they are picking on the wrong
enemies or the wrong issues. We can help them find some
whistleblower cases where the agencies will fight back on
disputes that make a difference.
Senator Carper. All right.
A closing thought, if I could. Again, our thanks to each of
you for joining us today, and for your service to our country,
past and present.
I would note, as I did earlier in my opening statement, I
think the Chairman did, as well, we have before us five very
impressive people, but missing at the table are those who have
another perspective on the stories that you have told and I
think we need to keep that in mind. These are matters that are
still being adjudicated, and we will have to let the process go
forward.
I am encouraged by what you said, Mr. Devine, about the
changes that flowed from the adoption of the Whistleblower
Protection Enhancements Act that we passed in 2012 with my
support. I think it might have been before the Chairman joined
us here. But, I am encouraged that it is working.
[Telephone ringing.]
I am also thankful to those of you who turned off your cell
phones before you came in. [Laughter.]
The last thing I want to say is this. You all have talked
about your core values. I do not know if you knew it or not,
but you have. And, I have my own. The Chairman has his own.
Actually, they are pretty similar, and I will close with these.
No. 1, figure out the right thing to do. Just do it. Not the
easy thing, not the expedient thing, what is the right thing to
do. We all need to do that, including the folks who are running
these agencies where you feel that you have not been treated
well.
Second is the Golden Rule. Treat other people the way we
want to be treated, the most important rule of all.
And the third--I have referenced it already, and the idea
is to focus on excellence in everything we do. If it is not
perfect, make it better. Everything I do, I know I can do
better. All these agencies we have throughout the Federal
Government, we can do better. We need to focus on, ``in order
to form a more perfect Union.''
And, the last one is, just do not give up. If you know you
are right, you think you are right----
Mr. Ducos-Bello. Never.
Senator Carper [continuing]. Just do not give up. Never
give up. And, I think those are some of the core values that I
hear sounded here today, and they are good values for us as
individuals and, I think, for Congress and for our country.
Thank you again. God bless.
Mr. Ducos-Bello. Amen.
Chairman Johnson. Thank you, Senator Carper.
I would also like to thank all of our witnesses for, again,
your thoughtful testimony, your thoughtful answers to our
questions, your courage for coming forward. I want to thank
every whistleblower that has the courage to come forward to
tell the truth.
I agree with the goal of the Lloyd-LaFollette Act, an anti-
retaliation law that created a no-exceptions right to
communicate with Congress, which is why we have set up our
website, [email protected]. So, again, I want
to encourage other individuals of courage to come forward. It
is the only way we are going to reform government, reform
bureaucracy, is if people know about it, if the public has the
light of day shone upon abuse and corruption. So, again, thank
you all for your testimony, for coming forward.
The hearing record will remain open for 15 days, until June
26, at 5 p.m., for the submission of statements and questions
for the record.
This hearing is adjourned.
[Whereupon, at 12:27 p.m., the Committee was adjourned.]
A P P E N D I X
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