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[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

                                 ------                                
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, whistleblower@RonJohnson.senate.gov. 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.
---------------------------------------------------------------------------
    \1\ The prepared statement of Colonel Amerine appears in the 
Appendix on page 37.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Johnson appears in the Appendix 
on page 40.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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 
whistleblower@RonJohnson.senate.gov, 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, whistleblower@RonJohnson.senate.gov. 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.]

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