Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

The House of Representatives enacted these protections when it overwhelmingly passed H.R. 985 in a veto-proof, bipartisan manner, and again when it added these provisions to the stimulus bill.  However, both times the Senate failed to pass or agree to the strong protections twice enacted by the House.  

This year, in another bipartisan effort, Representatives Van Hollen (D-MD), Waxman (D-CA), Towns (D-NY), Braley (D-IA), and Platts (R-PA) have reintroduced this bill as H.R.1507.

While the House version of the bill is more inclusive, the Senate version, S. 372, lacks many key protections. The Senate bill currently lacks coverage for the hundreds of thousands of federal employees who participate in the global war on terror and oversee a budget well over $150 billion.

One reason typically cited for denying court access for all federal employees is the claim that it could create a national security risk. However, this is not true. In an objective and independent review, the General Accounting Office (GAO) saw "no justification for treating employees at [intelligence] agencies differently from employees at other federal agencies except in rare national security cases." There is nothing in H.R. 1507 that would permit a whistleblower to reveal national security secrets to the media or the courts, yet misinformation about extending full due process protections to national security whistleblowers is still pervasive today.  The GAO’s findings demonstrate these claims of risks to national security are a myth.

Recent revelations in the news media of numerous scandals involving the intelligence agencies (such as CIA assassinations, detainee abuse and torture and illegal wiretapping) once again show that the need to provide strong protections to all federal employees who blow the whistle has never been greater.  Had the real whistleblower protections contained in H.R. 1507 been in place it is unlikely that information about illegal wiretapping and assassinations would have been withheld from Congress.  However, by enforcing the code of silence upon FBI and intelligence employees and by failing to provide for strong anti-retaliation provisions for national security whistleblowers, the timely reporting of illegal conduct to appropriate law enforcement authorities and to Congress was prevented and the wrongdoing continued.

It is time for Congress to enact a true whistleblower protection act for national security and FBI employees that provides for court access and jury trials, as does H.R. 1507, so that FBI and intelligence agency employees do not have to choose between keeping silent and risking their livelihoods when they witness illegal conduct committed by their agencies.

The Senate bill also contains weaker provisions and fails to effectively extend court access and jury trials to protect federal employees who work outside the area of national security or intelligence.  

For example, Bunnatine Greenhouse, who was the highest ranking civilian contracting officer in the Army Corps of Engineers when she blew the whistle on Iraq contracting misconduct, has noted that she would not be entitled to a jury trial in federal court under the Senate bill.  Read Bunny Greenhouse's Letter.

In these times of record government spending, all federal employees, including those who work at the FBI and the intelligence agencies, need to be protected by a strong whistleblower law that includes the right to court access and jury trials.  Study after study has shown that strong protections from retaliation are what encourage employees to report fraud and other misconduct.

Who is going to tap President Obama on the shoulder again and remind him that he needs to keep his promise to America’s whistleblowers too?
 

The Washington Times obtained e-mails showing that the White House counsel’s office provided its own drafts of the proposed whistleblower legislation, which would be harmful to the rights of national security employees.

The National Whistleblowers Center has long favored the whistleblower legislation pending in the House of Representatives.  NWC Executive Director Stephen M. Kohn is quoted in the Washington Times article saying “The House got it right. Obama pledged to support it and he should keep his promise to every whistleblower. As passed, the Senate bill does not fulfill that promise.” Tom Devine of the Government Accountability Project is also quoted as supporting more rights for whistleblowers than the White House proposed. “In reality, it just changes the drapes and window dressing.  All the hearings would still be conducted by the agencies.”

The NWC has consistently advocated the right of all whistleblowers to a jury trial. That, among other important rights, is not provided in either the current version of the Senate bill or apparently in the proposed Administration law.

“We are hopeful that whistleblowers will take action now to advocate for passage of the protections included in the House version. Now is the time to call your Representative or Senators if you care about protecting whistleblowers,” said Stephen M. Kohn.

In addition, today’s New York Times carries a letter to the editor from a former CIA Analyst, which provides a strong example of why it is important to protect national security whistleblowers. Mr. Melvin A. Goodman states that “If Congress ever got around to giving genuine whistleblower protection to members of the intelligence community, this country might get some idea of the extent of the perfidy and duplicity of some government officials.” Mr. Goodman also says that the state secrets privilege, which is often used to silence whistleblowers has “more to do with national embarrassment and not national security.”

Let’s hope that President Obama keeps his promise to provide meaningful whistleblower protection, including jury trials, to national security employees.  You can help by sending a letter to Congress urging them to pass the whistleblower protections included in H.R. 1507.

*Anthony Munter (Of Counsel for the National Whistleblower Legal Defense and Education Fund) contributed to this posting.
 

One of the issues addressed by the MSPB was whether a disclosure of information that is Sensitive Security Information (SSI) can be a disclosure protected by the Whistleblower Protection Act.  MacLean argued that the exclusion from whistleblower protection for disclosures that are “prohibited by law or Executive Order” only applies to disclosures not allowed by “statutes and court interpretations of statutes.”  He argued that since the retroactive prohibition on disclosing the information was only an agency regulation, not a law, he was entitled to whistleblower protection.  Unfortunately, the MSPB did not agree with MacLean.    The MSPB found that a “disclosure in violation of the regulations governing SSI” is within the meaning of “prohibited by law” and “thus cannot give rise to whistleblower protection.”

It is outrageous that the MSPB has one again failed to protect a federal employee who was simply safeguarding the health and safety of all Americans.  Federal employees who already risk their careers to expose threats to public health and safety now risk having their agency retroactively relabel their disclosure and strip them of what little whistleblower protection they do have.  As stated by NWC Executive Director, “it is deplorable that the men and women on the front lines of the war against terrorism who are trying to prevent the next 9/11 get such shabby treatment under the law.”

This decision is exactly why Congress needs to pass amendments to the Whistleblower Protection Act (H.R. 1507) giving all federal employees court access and a right to a jury trials.  Federal employees, including national security employees, need to have the option to appeal the MSPB decision.

Please read the statement of the NWC on the MacLean decision by clicking here.

Please check back for a link to the NWC Action Alert.


 

Deputy Assistant Attorney General for the Department of Justice, Rajesh De, basically repeated the same testimony that he presented at the House hearing on May 14^th. The Administration remains supportive of a variety of the improvements to the Whistleblower Protection Act contained in the House and Senate versions of the bill. However, they have stopped short of fulfilling President Obama’s campaign promises. The Obama Administration has not taken a position on jury trials for Title 5 federal employees and has refused to support jury trials for national security employees, despite promising to do so in the National Whistleblowers Center’s candidate survey.
 

The main difference from last month’s House hearing was the hard hitting questions by Senator Claire McCaskill (D-MO). Senator McCaskill stated that she was “perplexed and confused” why anyone would not want “every whistleblower on the face of the planet” to have access to a jury trial, especially federal employees. The Senator asked Mr. De to give her “any rational basis” for treating federal employees like second-class citizens. Mr. De’s response that it was too soon to tell the ramifications from the recently passed bills containing jury trials and that the Administration needed more time to investigate the issue was less than convincing. Senator McCaskill responded that whistleblower cases are hard to make, expensive to pursue, and it is difficult to find attorneys willing to take whistleblower cases. She continued that whistleblowers are doing the “heavy lifting” when it comes to reporting fraud and abuse and it is about time that we start “respecting and being deferential to whistleblowers.”
 

Senator Roland Burris (D-IL) also asked some important questions on the new “Intelligence Community Whistleblower Protection Board” proposed as an alternative to the Merit Systems Protection Board for national security employees. National security employees, who are responsible for preventing the next 9/11, must be able to report intelligence agency failures without fear of retaliation, and there was no coherent rationale provided at the hearing for excluding employees at the intelligence agencies and FBI from court access provisions contained in the House bill.
 

The testimony of William L. Bransford, General Counsel for the Senior Executive Association, was equally unconvincing arguing against providing for jury trials in whistleblower cases. Mr. Bransford argued that managers will be afraid to discipline “problem employees” if whistleblowers are provided access to jury trials. My question is: What is wrong with that? Why shouldn’t managers be afraid to retaliate against employees? If an employee really is a ‘bad apple’ their supervisor should be able to document why the employee should be reprimanded and proceed with proper disciplinary procedures. In my opinion, this general argument that supervisors will be chilled has little basis in reality. Managers already face jury trials for discriminating against employees on other grounds, however they are still able to effectively discipline employees and maintain a productive workforce.
 

Robert Vaughn a professor at American University’s Washington College of Law, Danielle Brian the Executive Director of the Project On Government Oversight, and Tom Devine the Legal Director of the Government Accountability Project presented compelling testimony on why all federal employees, including national security employees, should have full access to court and jury trials. Professor Vaughn submitted a mini treatise on the role of juries as his written testimony and provided support through detailed analysis dispelling stereotypes that are commonly used to argue against juries. Prof. Vaughn reminded the committee that academic studies show that juries decide complex cases without difficulty and that they are not biased in favor of the “little guy” in cases brought against large organizations.

I hope that after hearing today’s testimony the Senate takes action to finally protect all federal employee whistleblowers.  You can do your part by sending a letter to Congress and calling Senator Akaka (202-224-6361) and Senator Susan Collins (R-ME) (202-224-2523) Chairman and Ranking Member of the Senate Committee on Homeland Security and Governmental Affairs.

If you would like more information on the Senate hearing please visit the new Federal Employee Whistleblower Protection page on the NWC website.

 

Chairwoman Schapiro admitted that the whistleblower payment program the SEC already has for insider trading has not been used successfully.  She also admitted that the SEC staff cannot manage the 750,000 to 1.5 million tips and complaints they receive each year.  Chairwoman Schapiro stated that “we need to leverage third parties” to “help us focus on the [cases] where there’s the highest probability that there’s a really big problem that we can tackle.”  A whistleblower rewards program is a step in the right direction for the SEC.  In 2007, the rewards provisions in the federal False Claims Act helped recover over 2 billion taxpayer dollars from dishonest contractors.  For more information on how whistleblowers help protect Americans from fraud please see the National Whistleblowers Center’s new Fighting Fraud page.  Also, if you would like to get more involved in the fight to protect all federal employee whistleblowers please sign the petition.

The Three Steps:

1)    Commitment: Reaffirm his strong endorsement of reforms for federal whistleblower rights made in his campaign statements and transition policy – reforms providing best-practice free speech rights, including full court access for all whistleblowers funded by taxpayers and coverage of government contractors – and the appointment of a liaison responsible for interacting with whistleblower advocates as set forth in his May 8, 2007, response to a candidate survey.
 
2)    Change: Actively support the swift enactment of strong whistleblower protections, such as those in the bipartisan H.R. 1507, sponsored by Rep. Chris Van Hollen (D-MD) and Rep. Todd Platts (R-PA), in advance of congressional hearings this year, and communicate that message specifically to Attorney General Eric Holder. The president’s help will ensure that Congress enacts strong, comprehensive federal whistleblower protection legislation that gives all federal employees a functional administrative process and access to jury trials.

3)    Leadership:  Issue and enforce a directive to all agency managers that they must not tolerate any retaliation against federal employees who expose waste, fraud, abuse, suppression of federal research, threats to public health and safety, and illegality. While this directive alone will not resolve the need for improvements to the law, it will help to send a strong message of support for federal employees and help to end the culture of secrecy.

The NWC is optimistic that by working together with the President and members of Congress meaningful whistleblower protection for all federal employees will soon become a reality.  If you would like to express your support to Congress please sign the petition.