Kohn Op-Ed in New York Times tells the story behind America's first whistleblower protection law

Posted on June 13, 2011 by Richard Renner

Stephen M. Kohn, Executive Director of the National Whistleblowers Center (NWC), published an op-ed article in today's New York Times.The article tells the story of Captain John Grannis, and nine other sailors of the Continental Navy. The full story is contained in The Whistleblower's Handbook. The actual documents from the Continental Congress are linked here.

These courageous sailors and marines petitioned the Continental Congress to relieve the commander of the Continental Navy, Commodore Esek Hopkins. The sailors reported that Hopkins had engaged in misconduct including, the torture of British prisoners of war.

On March, 26, 1777, the Continental Congress accepted the petition and suspended Hopkins as leader of the Navy. he would later be formally discharged.

Hopkins was politically connected, and he retaliated immediately against America's first whistleblowers. He filed a criminal libel case against the whistleblowers in Rhode Island's court. Samuel Shaw, a midshipman, and Richard Marven, a third lieutenant, were detained during the proceedings. On July 23, 1778, they pleaded to Congress that they had been “arrested for doing what they then believed and still believe was nothing but their duty.”

Without any recorded dissent, Congress declared:

That it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.

Congress did not stop there. It also authorized payment for the legal fees of Marven and Shaw. Kohn calls this act "America’s first whistle-blower-protection law." With the help of attorney William Channing, the whistleblowers won an acquittal.

Kohn points out that today's America does not go so far in protecting whistleblowers. The Obama Administration is detaining and prosecuting Bradley Manning for allegedly releasing documents to WikiLeaks. It also prosecuted Thomas Drake for disclosing mismanagement of the National Security Administration (NSA) to the Baltimore Sun. Today's whistleblowers have no protection when they lose their security clearance, and employees of the NSA and CIA are excluded from the Whistleblower Protection Act (WPA).

Kohn's article is a fitting tribute to the First Amendment on the fortieth anniversary of the day the New York Times began publishing the Pentagon Papers.

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Government drops all serious charges against Drake

Posted on June 10, 2011 by Richard Renner

News is breaking that federal prosecutors have agreed to drop all serious (felony) charges against Thomas Drake, the Maryland whistleblower from the National Security Administration (NSA). In a face-saving ploy by the government, prosecutors insisted that Drake plead guilty to a misdemeanor of exceeding authorized use of a government computer.  Drake agreed, with the proviso that he will receive no fine and no jail time.

Drake worked for years to get NSA to stop wasting $1.2 billion of taxpayer dollars on the the mismanaged Trailblazer program that sought to have outside contractors sift through torrents of email and phone calls without any warrants.  After he exhausted efforts at internal whistleblowing, he raised his concerns with a reporter from the Baltimore Sun. Drake insists that he disclosed no classified information. The Bush administration decided against pressing any criminal case against Drake.  The new administration commenced controversial charges under the Espionage Act. Today, those charges are gone. The government's case was hamstrung by an administration decision to withhold the key information because it would disclose information about how the government receives or reviews information.

We are happy for Drake that the serious charges against him are dismissed. I call on the administration to immediately pardon Drake for the misdemeanor offense.  Government employees should not face criminal charges for helping the American people discover waste, fraud and abuse committed with their tax dollars. The managers who wasted the $1.2 billion suffered no consequences. Drake should be rewarded, not punished, for putting his career on the line by raising a concern about integrity.

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Dr. Duane Bonds files petition with Supreme Court to expand protections for federal employees

Posted on June 2, 2011 by Richard Renner

Dr. Duane Bonds

Dr. Duane Bonds has filed a petition with the U.S. Supreme Court this week. Dr. Bonds was our nation's top researcher on sickle cell disease until she blew the whistle on the unauthorized cloning of participants' cells. In January, the U.S. Court of Appeals for the Fourth Circuit ruled that she had a right to a jury trial on her claims under the Whistleblower Protection Act (WPA). Bonds v. Leavitt, 629 F.3d 369, 384 (4th Cir. 2011). However, it let stand the dismissal of her claims of retaliation against her in violation of Title VII. Title VII is part of the Civil Rights Act. The Fourth Circuit said that Title VII protects federal employees only to the extent that it protects employees in the private sector, and that protection applies only to concerns about discrimination in employment. The Fourth Circuit held that Title VII does not protect federal employees when they raise concerns about discrimination against minority members of the public.

My colleague Michael D. Kohn and I filed Dr. Bonds' petition for a writ of certiorari this week asking the Supreme Court to accept this case so it can say that federal employees are protected when they protest discrimination against the minorities the government is supposed to serve. The key provision of Title VII, 42 U.S.C. §2000e-16 provides that all personnel actions taken against a federal employee “shall be made free from any discrimination based on
race, color, religion, sex, or national origin,” Recently, the federal appeals court in the District of Columbia said that this provision requires the federal government to set a higher standard than it imposes on the private sector.  Ford v. Mabus, 629 F.3d 198 (D.C. Cir. 2010). Dr. Bonds' petition provides the Supreme Court a chance to make this holding apply throughout the country.  More information about Dr. Bonds' case is available in this prior blog post.

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