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If that is not bad enough, the Senate has proposed in S. 372 a very limited right to seek a jury trial in federal court in only some whistleblower cases (e.g., where there is a suspension of 14 days or more or a removal) if the employee files a request with the MSPB at an early stage of the case. However, the federal employer will be permitted to file a motion under Federal Rule Civil Procedure Rule 12(d), forcing the employee to survive summary judgment before the MSPB can permit a case to go to federal court. At that stage, the employee will have the benefit of no discovery, or may be forced to litigate the merits of a case on summary judgment, before the MSPB rules, in its discretion, whether or not the employee should be permitted to take the case to federal court and seek a jury. The same MSPB judges who rule currently rule for employees 1.7% of the time will be making these decisions under this convoluted procedure.

Finally, the MSPB statistics are revealing with respect to how the Senate proposes to “enhance” the whistleblower rights of employees who work for intelligence agencies and the FBI. In S. 372, employees who work in the field of national security will get no court access. Instead, they will be provided an administrative procedure that is even worse than the MSPB. In S. 372 the Senate proposes that FBI, CIA, NSA and other intelligence agencies will assign their own judges to decide the cases. Once the very agency that fired or disciplined the employee for whistleblowing makes the ruling as to whether there was retaliation the employee can appeal to a new Board that must defer to the agency’s decision. It is hard to imagine how anyone could devise a system that is worse than the current MSPB system to decide whistleblower cases, but that is precisely what the Senate and the Obama administration are proposing in S. 372.

The proposals in S. 372 are doomed to fail because they will further bias the system in favor of the employer. We already know the track record of the MSPB with over 30 years of statistics where employees now win only 1.7% of the time. Giving the MSPB more power, without providing employees full access to court, will not make much difference in these statistics. As for the FBI and intelligence agency employees, creating an entirely new administrative system that is even more biased in favor of the employer than the MSPB, without any court access for trials, is an insult to the brave employees who protect our national security. Accused terrorists have more rights in court than any employee of the FBI or intelligence agency blowing the whistle on illegal conduct, fraud or waste and abuse.

There is a solution to this problem. The House of Representatives with broad bi-partisan support has twice passed a bill that, while not perfect, addresses most of these problems in federal employee whistleblower cases in a constructive way based on other laws, such as Title VII of the Civil Rights Act, that provide court access for federal employees in addition to administrative remedies. The House bill (HR 1507), introduced by Rep. Chris Van Hollen (D-Md) and Rep. Todd Platts (R-Pa), provides important reforms to the MSPB and permits full court access for employees to obtain jury trials in federal court. 

Tell your Senator to strengthen the Senate bill by removing the poison pill provisions of S. 372 that are an impediment to real reform before it passes the Senate.

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.

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

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?