05/13/13 – Tom Devine – The Scott Horton Show

Admit it, our public debate has been reduced to reading each other's bumper stickers.
Scott Warren here for LibertyStickers.com.
I made up most of them and most of those when I was mad as hell about something.
So if you hate war, empire, central banking, cops, Republicans, Democrats, gun grabbers, and status of all stripes, go to LibertyStickers.com and there's a good chance you'll find just what you need for the back of your truck.
Own a bookstore?
Sell guns at the show?
Get the wholesaler's deal.
Buy any hundred stickers and they drop down in price to a dollar apiece.
You can spread the contempt and make a little money too.
That's LibertyStickers.com.
Everyone else's stickers suck.
All right, y'all.
Welcome back to the show.
It's the Scott Horton Show.
I'm him, Scott Horton.
My website is ScottHorton.org.
Keep all my show archives, well, a couple of few years worth there.
And all my interview archives going back to 2003, more than 2,800 interviews now.
They're at ScottHorton.org for you.
And we're streaming from ScottHorton.org, from NoAgendaStream.com, from TalkStreamLive.com, from AnomalyRadio.com, from LibertyMovementRadio.com.
And later on today, this will be rerun at LibertyExpressRadio.com.
And hey, that ain't so bad, huh?
All right, good.
All right, so next up on the show, well, first of all, before I make my introductions, I want to remind you about this article that ran in Tom Dispatch last week.
I'm sure you saw it.
It ran at AntiWar.com as well, of course, under Tom Englehart's name at AntiWar.com.
It's by Peter Van Buren, the State Department whistleblower from the Iraq War.
It's called, If the Government Does It, It's Legal.
And it's a story.
It has, of course, a Tom Englehart introduction.
And then it's the story of Robert McLean, a former air marshal, whistleblower.
And okay, so now that being said, we have on the line his lawyer, Tom Devine.
He is legal director of GAP, the Government Accountability Project, at whistleblower.org.
And they're protecting corporate, government, and international whistleblowers since 1977.
He's the legal director there.
He's worked there since 1979.
And has assisted over 5,000 whistleblowers in defending themselves against retaliation and in making real differences on behalf of the public.
In fact, I'm going to go ahead and finish this paragraph because he needs a second and I like it.
Such as shuttering accident-prone nuclear power plants, rebuffing industry ploys to deregulate government meat inspection.
Eh, we could have to argue about that one, maybe.
Blocking the next generation of the bloated and porous Star Wars missile defense system, and sparking the withdrawal of dangerous prescription drugs, such as Vioxx.
All right, good.
So, now, welcome to the show.
Tom, how are you doing?
Oh, just great.
Thank you.
Well, thank you very much for joining us.
And were you able to get Robert successfully online?
I haven't connected with him yet.
He's a private contact and now scrambling to survive.
So, he might have gotten called out on a job, but I hope he can join us.
Okay, well, we'll see.
But that's all right.
We can go ahead and proceed without him for now.
So, again, I want to refer people to TomDispatch.com, to this article by Peter Van Buren, which tells the story.
But I guess that's really the best place to start here, is the background, before we get into all the whistleblower part of it.
Just tell us, who is Robert McLean, and what was it that he was upset about in the first place?
Well, Robert is a long-term federal air marshal for the Transportation Security Administration.
And in the summer of 2003, he and all the other air marshals got an emergency alert that Al-Qaeda was planning a more ambitious rerun of 9-11.
It was almost like 9-11 would just be beating the drums for the climactic attack.
And this was confirmed by counterintelligence forces and foreign intelligence.
And there's not much question about it.
And the attack was going to cover the West Coast cities.
It would have covered European capitals.
This time they're going to take out the Capitol building here.
Every air marshal in the country is called in for emergency training.
And kind of, this is it.
This is what we're all here for.
This is what we've – this is, you know, it's like D-Day for them.
And as soon as they finished their training, however, they all got text messages, unrestricted text messages just came in, no markings or any restraints on communicating about them, that said, cancel all your long-distance missions.
And those were the planes targeted by the hijackers.
And be sure and cancel your hotel reservations while you're at it.
And so everybody was scratching their head.
And Mr. McClain just decided to get some answers.
So he went to his boss and said, what's going on?
This is the middle of the biggest threat to our country in history.
And we're all going to be AWOL?
What's going on?
And the boss said, I know it's crazy, but it's from headquarters.
There's nothing you can do.
Just file orders.
Leave it alone.
So he went to the inspector general then.
And the inspector general said the same thing.
He said, son, you've got a long career ahead of you.
You're just going to destroy yourself.
You're not going to change anything.
And being a whistleblower, Mr. McClain didn't give up.
He went to MSNBC reporter and said, can you get the word about what's happening to Congress?
It was the weekend on Sunday.
You get this to Congress and get some answers.
I can't get any answers.
We're on the job.
And the MSNBC reporter wrote a story about it.
It was the next morning at the presidential press conference.
President Bush couldn't defend it.
The members of Congress learned about it all right.
They held their own press conferences, threatened to hold hearings.
They were saying, what the heck is going on?
And within 24 hours, Department of Homeland Security issued a release that it was all a mistake and no one was ever going to be removed from the airplanes.
It was just a mistake.
We know that wasn't true, but the government reversed itself.
And the coverage was restored.
The hijacking was prevented.
And it should have been a happy ending, except that the government was furious that they had been exposed planning to go AWOL during a 9-11 rerun.
And they did a three-year investigation to find out who is the leaker, who shared that.
And they eventually found out that it was Mr. McClain.
And when they did, they retroactively, three years after the fact, declared that the text message that he had wanted to get some answers about was sensitive security information.
Not classified, but an agency secrecy rule.
And fired him for threatening the safety of the country by disclosing sensitive security information.
And it started a seven-year legal nightmare for him.
Now, Tom, let me clarify.
Well, there's a couple of things I want to clarify here.
But is it the case, if I understand you right, you're saying they didn't just so-called classify, and we're going to have to break that down, right?
That's under the rules, not under the law, but under the rules of their own bureaucracy, the little ad hoc thing that they made up.
But you're saying they didn't even do that until after they found out who leaked it?
Or they did that as soon as it was leaked?
No, the text message was issued in August 2003.
And they made it secret in 2006.
Only after they discovered who did it, they said, well, geez, we don't have anything on him.
Let's classify this.
But that was the whole reason for making it sensitive security information, was to have a charge to fire him with.
Okay.
And now another thing I want to follow up on, and I'm sorry for interrupting, but it's a very detailed story, and I want to try to do follow-ups as we go through so we don't get too far into it.
But this attempted terrorist attack you say was thwarted, are you certain that this was a real thing?
It sounds to me like the kind of bogus orange alert that the Bush administration liked to put out, especially in 2002 and 2003, to distract people from Iraq war scandals, et cetera.
They hadn't done any public alerts about it.
Oh, okay.
This was all, in fact, all of the evidence that we have ended up coming through Freedom of Information Act and congressional committees who extracted it from the agencies.
The terrorist report, the terrorist attack, planned attack, though, it started with a warning from Saudi intelligence.
It was confirmed by our counterintelligence units.
DHS confirmed it, actually put out a report on it in the aftermath, and so did the GAO.
No, the government's not challenging that there was an attack.
So it didn't originate with the waterboarding of Khalid Sheikh Mohammed, who admitted to every crime that happened in the world since the end of the Second World War.
I don't know who the initial, the pioneer source for it was or if it came out of some torture interrogation, but actually the initial tip came from Saudi intelligence, and then it was confirmed by the American agencies.
But there's never been any asterisk placed on it.
The fact that this was going to happen was confirmed and reconfirmed after the fact.
It's besides the point for what we're talking about here, because your client here, Robert McLean, the air marshal, certainly had every reason to believe that this was as serious as a heart attack.
Did he ever get any information?
Did you guys ever come across the explanation as to why they called off the big surge in marshals that they had begun to implement themselves in the first place?
Yeah, and that's even more surreal, Scott.
The reason they were calling off the air marshal coverage is that the air marshal service had blown its budget on buddy system kind of patronage contracts for computer services and things to retired bureaucrats, and they were running out of money, and they were going to have to go back to Congress and ask for supplemental appropriation, and they knew they'd be put through the wringer if they did that.
So they figured out that if they didn't have any more hotel charges for the last two months of the fiscal year, they could avoid going back to Congress.
So they canceled all the long-distance air marshal coverage for the last two months, so they wouldn't have to cover the transportation cost of their agents, and they'd escape with their fiscal rears unticked.
You know, that sounds like a cover-up story, but then again, it also sounds as plausible as could be.
That's why you'd use it as a cover-up story anyway, right, is because I could see that.
It's sort of like 9-11 happened because all the fighter jets were busy patrolling the DMZ over there on the Korean Peninsula instead of protecting the United States of America.
Really, I mean, this was tunnel vision to keep a bunch of bureaucrats out of trouble who had given away their budget to their buddies.
Yeah.
Yeah, I could see that.
Okay, so now how was it that they found out?
The story is told in Peter Van Buren's article that he leaked again, and he went on 60 Minutes but in shadow, and they figured out who he was?
Yeah, it was actually the nightly news.
After the 2003 thwarted abdication of coverage, Mr. McClain started to really wake up, and he turned into a very active whistleblower.
He formed a chapter of the Federal Law Enforcement Officers Association for the Air Marshals with another whistleblower gentleman named Frank Tureri, and they teamed up to expose one of the most keystone cops bureaucracies you could fantasize, mostly about blowing the cover of the undercover agents.
They were supposed to be secret.
You wouldn't know who they are on the planes, but the Air Marshals, I mean, it's really kind of buffoons who are running the agency.
They would make the agents wear kind of like Secret Service uniforms.
Frank Tureri was a former Secret Service agent running the Air Marshals, even on flights to the Caribbean and things.
They'd walk onto the flights with suits and plugs in their ears and things, and then they would make them show their credentials before all the other passengers entered, so they would have to prove that they were Air Marshals in front of all the other passengers at the beginning of their undercover mission.
Then they would always sit in the same seat on the plane.
I mean, it was so bad that part of the security for an undercover mission is the enemy doesn't know where you're sleeping.
But they, to get a discount on the hotels, allowed the hotels to advertise the Federal Air Marshals as their customers of the month on the Internet and on the billboards in front of the hotel buildings, so everybody knew where they were staying.
And McLean and other Air Marshals blew the whistle on this very effectively and eventually forced the resignation of the head of the Air Marshals Service.
But he was blowing the whistle on these undercover sabotage mismanagement projects when he went on television, supposedly anonymously, but it was sloppy.
He was identified, and that's how the investigators eventually caught him for the 2003 disclosure.
Okay, and now, so let's get back to the technical difficulties there about which kind of classification this is and how he's at least won some small victories in the courts, correct?
He won a major victory in the courts.
It's kind of dusty for people who aren't lawyers, just normal human beings, but this recent decision healed the Achilles' heel of the Whistleblower Protection Act.
The secrecy regulation was, the information was not classified.
It was an agency secrecy rule that McLean was accused of violating.
And then he did violate, but he had the right to violate it because the primary fight when whistleblower free speech rights were first enacted by Congress in 1978 was whether agencies could cancel them out through their own internal secrecy rules.
In other words, whether agencies would have a veto power over the statutory free speech rights that Congress passed.
And we won that battle.
We won that battle in 1978, and until late in the Bush administration, no one had even challenged it, thought to challenge it.
There was one decision unanimously dismissed a challenge to it about 15 years ago.
It was like the cornerstone of the law that the statutory free speech rights trump any agency gag orders.
Otherwise, the Whistleblower Protection Act wouldn't mean anything.
Agencies could erase it whenever they felt like it.
Well, in 2009, as one of his final rulings, President Reagan's, President Bush's chairman of the administrative board that makes all the rulings on the Whistleblower Protection Act, called the Merit Systems Protection Board, the chairman said that agency secrecy rules would be the deciding authority, that they could cancel out the free speech rights passed by Congress.
And that meant that the whole Whistleblower Protection Act was going to be voluntary, basically, an honor system for any agency that didn't feel like getting rid of it.
And ever since that 2009 decision, we've had a very, very fragile foundation for freedom of speech, even just being eligible for freedom to prove retaliation.
It wasn't a question of whether he'd been retaliated against.
The agency officially accused him.
They fired him.
His misconduct was blowing the whistle.
The question was whether he had the right to blow the whistle.
To our great surprise, the Federal Circuit Court of Appeals a few weeks ago, about two weeks ago exactly now, issued a ruling that upheld the supremacy of the congressional free speech rights over conflicting agency gag orders.
We were surprised about it because this court had had, since 1994, a track record of three wins for whistleblowers and 226 defeats.
It was like you didn't have a chance there.
But enough was enough.
Even the most hostile court respected that we won't have a credible free speech law if agencies can throw it in the garbage whenever they feel like it.
Right.
Now, so it's interesting that the court upheld that the bureaucracies can go ahead and retroactively classify, and even in this case when, as you said, they didn't classify it once it was leaked.
They didn't even bother classifying it until later after they found out who it was who leaked it.
It was clear they only classified it just so they could try to get him in trouble with it.
And the judge said, well, that part of it is okay, but in this case, even though it was classified, it was only bureaucratically classified, not under congressional statute classified, and so therefore it's okay that he leaked classified, retroactively classified information.
Do I understand that right?
That's right.
That's what the court ruled, because that retroactively bureaucratic classification could not coexist with the free speech rights passed by Congress in the Whistleblower Protection Act.
And the court ruled that the Whistleblower Protection Act, it wins in the event of a fight with agency secrecy rules.
And so the other thing is, and you talk about in the article how once they pass the Whistleblower Protection Act in the first place, then all the bureaucracies start classifying everything, and then that will be the result of this, right?
If there's any pushback from the court, then they'll just classify everything, even more than ever before, just to cover their backside, right?
That's right.
If the court had ruled the wrong way, it would have been a green light to give every agency in the government a blank check to gag its workers.
So it seems sort of dusty and legalistic, but we are all biting our fingernails and scared to death that this is going to be the end of credible free speech rights.
Yeah.
Well, I guess what I was trying to get at is, it sort of is, right?
I mean, aren't they doubling down now on everything they classify?
Don't they double down every time a judge does do the right thing at all?
Well, right now, we've got some kind of...
It's fascinating to me, Scott, a civil war within the administration on what rights whistleblowers have to criticize the government.
President Obama did go to the mat supporting passage of the Whistleblower Protection Enhancement Act, and it restored credible statutory free speech rights.
The issues in the McLean case were not front and center for what was making everybody lose.
Usually, the McLean case said you didn't have access to the law until this court ruling.
But he was actually kind of one of the lucky ones.
The people who did have access to the law would lose almost every single case.
It would be like they were way worse off for having asserted their rights.
They'd be spending $50,000 in four or five years to hammer the final nail in their own professional coffin.
And President Obama led efforts to restore credible free speech rights by statute.
He also issued a presidential policy directive last fall that made up for the House Intelligence Committee removing the rights against security, clearance, retaliation, that's access to classified information, and institutional free speech rights, in-house free speech rights for members of the intelligence community.
Like Epps' clients, the Tom Drake and Bill Binney, and some of the national security whistleblowers.
Those were all very positive things.
They're unprecedented, actually.
I've been doing this since 1979, and there's never been a president who had fought with us to strengthen free speech rights and sharpen their teeth.
But at the same time, he's prosecuted more national security whistleblowers criminally than all the other presidents in history combined.
And right now, Scott, the Justice Department is in just an utter blitzkrieg to cancel out all of the free speech rights in the Whistleblower Protection Enhancement Act that Obama helped to get passed, as well as the rule of law generally in the civil service system.
It's kept it nonpartisan and professional since 1883.
It's through creating a new national security loophole that would basically subsume all the normal rights in the civil service system.
And say, if you're an employee covered by this national security loophole, you don't have access to the civil service laws.
You have to go before national security boards, military boards, to determine your fate as a federal worker.
You have to do that if your job is classified as a sensitive job, sensitive employment, national security sensitive.
And at the same time, they're in a corp blitzkrieg to take away access to the civil service rights.
They're in a rulemaking blitzkrieg.
If the Director of National Intelligence is leaving, that will allow the government, the administration, to brand virtually any job in the government as a national security sensitive job.
In other words, almost anyone who works for the federal government would be a national security employee and lose their normal rights to freedom of speech, to the merit system, their rights against race, sexual, religious discrimination.
We'd be vulnerable to having basically a national security spoiled system.
Now, would you say that there's a correlation between secrecy and crime or what government officials call embarrassing information?
There's no question there's a direct relationship between secrecy and abuses of power.
That's why we represent whistleblowers at GAP.
We're all very concerned about the government abusing its authority.
If there was one of the kind of cliches that I've learned how true it is, it came from Justice Brandeis over a century ago.
He said if corruption is a social disease, sunlight is the best disinfectant.
And what we've also learned is that abuses of power, bureaucratic breakdowns, bureaucratic negligence, neglect, and abuses of power sustained by secrecy, enforced by intimidation, are a clear and present threat to national security itself.
After 9-11, we started, just to make sure that whistleblower rights didn't get swept up in the secrecy tidal wave, we started representing a lot of national security whistleblowers.
And they've been warning about our vulnerabilities to 9-11.
They've said it's just a matter of time.
We're sitting ducks.
And all of them were smashed.
They were silenced.
They were removed from their duties.
Yep.
And, hey, listen, that sounds like it's probably Mr. McLean calling in, but we're fresh out of time.
But if you could tell him that I'd be happy to interview him later in the week or some other time about this story because it's an important one.
Oh, I'm sure he'll be very pleased to chat with you, Scott.
And thanks for having me on.
Well, I appreciate your time on the show and your explanation of the situation and its import very much.
Good times.
Appreciate it.
Well, thanks for having your forum.
All right, everybody.
That is Tom Devine.
He is the legal director of GAP, the Government Accountability Project, at whistleblower.org.
And, again, I'll recommend to you this great piece by Peter Van Buren.
You remember him.
He wrote We Meant Well, a State Department whistleblower book about Iraq.
Well, he wrote this thing for Tom Dispatch.
It's called If the Government Does It, It's Legal.
Homeland Insecurity, Seven Years, Untold Dollars to Silence One Man.
That's Peter Van Buren, TomDispatch.com, with the story of Robert McLean.
And we'll be back after this.
Mike Swanson is a successful former hedge fund manager whose site is unique on the web.
Subscribers are allowed a window into Mike's very real main account and receive announcements and explanations for all his market moves.
Federal Reserve has been inflating the money supply to finance the bank bailouts and terror war overseas.
So Mike's betting on commodities, mining stocks, European markets, and other hedges against a depreciating dollar.
Play along on paper or with real money and then be your own judge of Mike's investment strategies.
See what happens at WallStreetWindow.com.
Oh, man, I'm late.
I sure hope I can make my flight.
Stand there.
Me?
I am standing here.
Come here.
Okay.
Hands up.
Turn around.
Whoa, easy.
Into the scanner.
Ooh, what's this in your pants?
Hey, slow down.
It's just my...
Hold it right there.
Your wallet has tripped the metal detector.
What's this?
The Bill of Rights.
That's right.
It's just a harmless stainless steel business card sized copy of the Bill of Rights from SecurityEdition.com.
There for exposing the TSA as a bunch of liberty destroying goons who've never protected anyone from anything.
Sir, now give me back my wallet and get out of my way.
Got a plane to catch.
Have a nice day.
Play a leading role in the security theater with the Bill of Rights Security Edition from SecurityEdition.com.
It's the size of a business card, so it fits right in your wallet.
And it's guaranteed to trip the metal detectors wherever the police state goes.
That's SecurityEdition.com.
And don't forget their great Fourth Amendment socks.
Hey, guys.
I got his laptop.
Hey, y'all.
Scott Horton here for the Future of Freedom, the journal of the Future of Freedom Foundation.
Every month, Plum Line individualist editor Sheldon Richman brings you important news and opinions on policy by heroic FFF president Jacob Hornberger, hard-hitting journalist columnist James Bovard, and others from the best of the libertarian movement.
The Future of Freedom tackles the most important issues facing our country, from the bankrupt and insane welfare and regulatory states, to foreign wars and empire, the dismal state of our economy, and ongoing assaults on civil liberties.
This society needs peace and freedom for prosperity to prevail.
Subscribe to the Future of Freedom in print for just $25 a year, or online for $15 a year at fff.org.
And hurry up, because this summer they'll be running my articles about the wars in Libya, Syria, and Somalia in the Future of Freedom, too.
That's fff.org.
And tell them Scott sent you.
Hey, y'all.
Scott here.
First of all, thanks to the show's sponsors and donors who make it possible for me to do this.
Secondly, I need more sponsors and more donors if the show is to continue.
ScottHorton.org has all the links to use PayPal, Give.org, Google Wallet, WePay.com, and even Bitcoins to make a donation in any amount.
You can also sign up for monthly donations of small and medium-sized amounts through PayPal and Give.org.
Again, that's ScottHorton.org for all the links.
To advertise on the site or the show, email me, Scott at ScottHorton.org.
And thanks.
Over at AIPAC, the leaders of the Israel lobby in Washington, D.C., they're constantly proclaiming unrivaled influence on Capitol Hill.
And they should be proud.
The NRA and AARP's efforts make them look like puppy dogs in comparison to the campaigns of intimidation regularly run by the neoconservatives and Israel firsters against their political enemies.
But the Israel lobby does not remain unopposed.
At the Council for the National Interest, they put America first, insisting on an end to the empire's unjustified support for Israel's aggression against its neighbors.
And those whose land it occupies.
And pushing back against the lobby's determined campaign in favor of U.S. attacks against Israel's enemies.
CNI also does groundbreaking work on the trouble with evangelical Christian Zionism and neocon-engineered Islamophobia and drumming up support for this costly and counterproductive policy.
Please help support the efforts of the Council for the National Interest to create a peaceful, pro-American foreign policy.
Just go to councilforthenationalinterest.org and click donate under about us at the top of the page.
And thanks.