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

In December 2009, Donald Gates, an innocent man, who spent 28 years in jail after being convicted for crimes he did not commit, was set free by D.C. Superior Court after DNA testing confirmed that forensic testimony presented in court by FBI analyst Michael Malone was false. On the basis of Malone’s fabricated tests and false testimony Gates was wrongfully convicted of rape and murder.

Gates’ case was on a list of cases ordered to be reviewed following the DOJ IG’s report verifying Whitehurst’s whistleblower allegations. Notably, Whitehurst specifically blew the whistle on Michael Malone, who the IG confirmed deliberately lied and falsified evidence in the judicial inquiry brought against Alcee Hastings (then a sitting federal judge and now a member of Congress). As a result of verifying that Malone lied in the Hastings case, the DOJ decided to conduct a review of all of Malone’s cases.

However, Gates’ case was not properly reviewed by DOJ and he continued to sit in jail until December 2009 when new DNA testing confirmed that he could not have committed the crime for which he had been convicted.

This is another reason why FBI whistleblower protections should not be weakened as proposed by the Senate in S. 372 and reported last week in Politico.

But for Whitehurst blowing the whistle on Malone, the FBI lab analyst who lied in this case, Gates’ case never would have been reviewed and he likely would still be in jail. When efforts were made by Gates’ attorneys in 2008 to seek new DNA testing they were able to persuade the judge to order that test because the IG had verified Whitehurst’s allegations against Malone in the 1997 IG report. Had Whitehurst not come forward nobody would ever have looked at Gates’ case or anyone else’s case handled by the FBI crime lab. Gates would still be sitting in jail even though he is an innocent man.

By weakening FBI whistleblower protections to permit the FBI to investigate and adjudicate whistleblower retaliation claims by its own employees and agents, the Senate is ensuring that nobody will blow the whistle on misconduct at the FBI. If you want to know the consequences of that, go ask Donald Gates.

Please TAKE ACTION and tell the Senate to fix the repeal of existing FBI whistleblower protections.

These promises are easy to fulfill.  S. 372 can be amended on the Senate to make the law consistent with President Obama’s campaign promises – and consistent with the goal of providing real protection to federal employee whistleblowers.  

It is time for the White House to stop listening to those who benefit from whistleblowers being silenced.  President Obama must demand that his staff fully and immediately implement the promises he made to every American whistleblower during his campaign.

It is a promise that he must keep.  

President Obama stated that whistleblowers are the “watchdogs of wrongdoing” and should have “full access to courts and due process.”  The President must take a leadership role and ensure that the whistleblower bill that passes in the Senate is consistent with his campaign promises.

When the next disaster hits – and it turns out there was a whistleblower trying to warn the public before people were hurt – will President Obama be able to stand before the voters and say that he did his best, that he fulfilled his promise?  Or will he be accused of abandoning the courageous employees who tried to “do the right thing?”

Ms. Rowley, a former FBI agent, blew the whistle on the government’s failure to approve a search warrant for one of the al Qaeda operatives who was attending flight school shortly before the attacks. Although she was named a “Person of the Year” in 2002 by Time Magazine, Ms. Rowley knows very well the dangers national security employees face once they blow the whistle: “I know of so many other national security whistleblowers that lost their jobs and livelihood simply by doing the right thing. Hundreds of national security whistleblowers have been drummed out of their jobs or had their careers destroyed.”

Ms. Rowley knows there is hope, however, and has issued this action alert to help get national security whistleblowers the legal protection they desperately need.

“We must make sure that the President and every member of the House and Senate hear our voice and know we need strong whistleblower protections for national security employees that include the right of court access and trial by jury for national security whistleblowers”

Ms. Rowley's letter urges support for the Van Hollen-Platts Whistleblower Protection Enhancement Act (H.R. 1507), which provides protections for national security whistleblowers, including due process rights and access to the federal courts.  The Senate bill does not include these rights.  It is expected that Congress will take action on federal employee whistleblower rights this month.

*Erin Jensen (a NWC intern) contributed to this posting.

These are extremely serious allegations, but let me explain how it works.  When the employee files a whistleblower claim the agency conducts the investigation.  The agency is empowered by the statute to render a credibility determination against the whistleblower.  The agency can make a finding that the employee is not trustworthy.  Such a finding in law enforcement or intelligence will mark the end of that employee’s career.

First, under the Supreme Court cases of Brady v. Maryland, 373 U. S. 83 (1963) and Giglio v. United States, 405 U. S. 150 (1972) if a law enforcement officer has issues related to truthfulness in testimony the prosecution in any criminal case is required to provide this information to the defense.  Therefore, these agency findings will be required, under constitutional law, to be submitted to the defense in any case where the employee may testify.  These types of findings on credibility will mark the end of an employee’s career as they will no longer be able to work on any cases that may require in-court testimony.

Second, a finding by an agency that an employee was not truthful or reliable will be forwarded to the security clearance office.  They security clearance will likely be reviewed and denied.  If an employee’s security clearance is revoked they will be removed from their position.

Third, a whistleblower who suffers a Giglio smear or has their security clearance revoked will face long-term consequences, including the inability to work in the private sector.  Essentially the ability to get another job in the intelligence or law enforcement area is gone.

Finally, the Title II has a masterful stroke if the employee appeals their adverse credibility determination to the newly created Intelligence Community Review Board.  The Board is statutorily given the ability to issue a final decision on the credibility and truthfulness of the whistleblower.  Under the statue, this finding must be made public and published to Congress.  The finding that will destroy a whistleblowers career is plastered in the public domain for anyone to see.

You may be asking yourself, isn’t the right to an appeal something good?

Under normal circumstances, yes, but not when Franz Kafka writes the law.  The appeals provision is as follows.  The whistleblower is not given the right to appeal before a court, they must appear before the Intelligence Community Whistleblower Board.  The Board is comprised of executives in the intelligence community and is prohibited from hearing testimony or admitting evidence.  Thus, when an agency discredits a whistleblower, they cannot present any new evidence to defend themselves.  The Board will render a final decision on credibility, which will be based solely on an agency created record.  They are prohibited under the statute from simply calling the whistleblower in and rendering their own decision on credibility.

So, is taking a whistleblower to this Board legal malpractice?  Yes.

The risk that any employee faces in appearing before the Board is just too great.  The employee should avoid these procedures at all costs.  Given the track record of the FBI and other agencies in handling whistleblower complaints, to place a client’s hands in this process would be tantamount to professional suicide. There is nothing good in Title II as it is currently drafted.  It will be a sad day for the public’s right to know, oversight and accountability, and basic fair play for the Senate to ever approve such a bill.

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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?
 

NWC Executive Director Stephen M. Kohn has asserted in the 12-part blog series entitled “What’s Wrong With The Senate Whistleblower Bill?” that the “when read together, the numerous ‘poison pill’ provisions inserted into S. 372 all but guarantee that very few, if any, federal employee cases will ever be removed to district court for a real trial.”

On the other hand, according to a news media report, the White House and members of the Senate including Senator Daniel K. Akaka (D-HI) assert that the Senate bill would dramatically improve protections for federal employees and give whistleblowers, like Bunny Greenhouse, access to federal court.  

This assertion is wrong, however.

The Senate bill limits access to jury trials to employees who suffer a major personnel action as defined by Section 7512 of the Civil Service Reform Act (5 U.S.C. § 7512).  This means that a whistleblower must suffer a removal, a suspension for more than 14 days, a reduction in grade, a reduction in pay, or a furlough of 30 days or less (there are additional limitations to these five actions) in order to potentially receive a jury trial in federal court.

In Ms. Greenhouse’s case, a federal court has already ruled that she did not suffer a major personnel action as defined by Section 7512.  A copy of the Court's ruling is linked here.  This ruling directly contradicts the exaggerated claims by the White House and proponents of the Senate bill about the true scope of the bill’s jury trial provisions.  

It is clear that Ms. Greenhouse would not qualify for the right to jury under the Senate’s proposed whistleblower bill unless the Senate bill is changed to remove the limitation to jury trials for only those cases involving major personnel actions.

So, the question is what do you think will happen?

My opinion is that federal agency employers will just get “smarter” about how they retaliate against a whistleblower.  They will avoid the list of actions that could potentially expose them to real consequences – a jury trial in federal court.  They will suspend a whistleblower for 13 days instead of 14 days.  They will transfer employees to another position outside their area of expertise without a reduction in grade or pay.  There are many ways that an employer can create a hostile working environment and silence a whistleblower.  The only way to truly protect whistleblowers is to prohibit any retaliation against a whistleblower.

I urge you to read Bunny’s letter and get informed about the provisions in the current Senate bill.
 

That’s right.  The Director of the FBI can simply order the dismissal of any whistleblower case filed by any FBI employee.  End of story.

I know this sounds radical, but Section 121(e) (Page 56) grants these powers to the agency directors!

This radical grant of power to the agencies accused of wrongdoing is one of the most obvious manifestation of the deficiencies in the Senate bill.  The national security whistleblower provisions are not designed to protect whistleblowers.  They are designed to ensure that no whistleblower case is ever filed, and if it is filed, that the whistleblower will lose – not just their case, but potentially their security clearance and their ability to ever work in law enforcement or other security areas again.

The fact that the directors of each agency covered under the national security whistleblower provisions are granted this extraordinary power is simply the last step in a process that undermines whistleblower protections.  

It is unacceptable to create a process that grants the agency embarrassed by the whistleblower’s disclosure the authority to summarily and without any judicial review throw out a whistleblower’s case.

Read all the postings for What's Wrong With The Senate Whistleblower Bill?
 

The right to federal court in provided in the House version of the bill and recommended by the GAO does not exist in S. 372.  This not only undercuts essential due process rights, but also creates an atmosphere where the intelligence agency can retaliate against the whistleblower knowing that the employee will never be able to have his or her day in court.

Access to federal court remedies is the single most effective check on any government agency’s propensity to try to silence a whistleblower.  Instead of providing court access, the Senate bill creates an Intelligence Community Whistleblower Protection Board that only purports to be system of review.

The Board is comprised of intelligence agency officials, not administrative judges, and is not subject to the minimum due process requirements of the Administrative Procedures Act.  The Board does not have the authority to hold hearings or interview the whistleblower.  However, the Board is given the authority to determine a whistleblower’s credibility solely on the basis of the recorded created by the agency that retaliated against the employee.  

Second, the Inspectors General are stripped of their responsibility to investigate or remedy a whistleblower retaliation case.  Instead, the power to investigate whistleblower cases is vested directly with the agency that retaliated against the whistleblower in the first place. There is not even a pretext of independence.  If you blow the whistle against the CIA, it is the CIA that will look into your case.  

Third, the due process protections afforded whistleblowers under the current Whistleblower Protection Act do not exist.  Under current law, the Office of Special Counsel investigates whistleblower claims.  Because of abuses within that office, the contents of these investigations remain protected by the Privacy Act.  Only the employee can consent to the release of the findings.  Why?  In the past, a whistleblower would go to the Special Counsel.  The Special Counsel would draft a report critical of the whistleblower. The agency could and would use the report to discredit the whistleblower and would effectively end that employees career.

In 1989 that process was reformed.  The Special Counsel report could only be provided to the employee, who would have the ability to keep the report confidential.  

Not so under the new Senate legislation.  The agency itself will conduct the investigation and issue the report.  The report is not confidential, and can be used to justify further retaliation against the employee.  

Forth, the agency is vested with the power to draw “credibility” determinations against the whistleblower.  Thus, the agency can reach a finding that the employee is not credible.  This finding will not only be used to defeat the whistleblower case, but will be sent over to the security clearance office.  An employee who is found not “credible” will very likely lost their security clearance and with that their reputation and ability to even obtain work in law enforcement or security-related agencies.

Fifth, the adverse credibility determination is not subject to any meaningful appeal. The Board can only reach a ruling on the credibility of a whistleblower based on the record created by the very agency that retaliated against the employee!  The Board is prohibited from even talking to the whistleblower and reaching its own credibility finding.

For example, if the CIA makes a finding that a whistleblower is not credible, and the whistleblower files an appeal of that finding, the Intelligence Community Whistleblower Protection Board is prohibited from taking any testimony from the whistleblower in order to rebut the adverse agency finding.

Sixth, the agencies can introduce secret evidence in a whistleblower case against the employee, and the employee is prohibited from ever learning what that evidence is.  Thus, an employee can lose his or her case based on secret evidence that they are never able to rebut.  

Seventh, the law creates a short sixty-day statute of limitations for filing national security whistleblower claims.  The current Whistleblower Protection Act contains no such statute of limitations.  Such a short filing period will result in many cases being dismissed as untimely filed.  Given the other problems with the law, that may end up being a blessing to most workers, who will not have to incur additional attorney fees simply to have the agency that fired them write a report attacking their credibility!

The bottom line is that the provisions set forth in Title II of S. 372 are anti-whistleblower in nature, and represent a serious setback for all national security whistleblowers.
 

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