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

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.

In the 1990's Dr. Whitehurst blew the whistle on scientific abuses in the FBI crime lab.  He won his cases and as a result, President Clinton signed an order protecting FBI agents who blow the whistle.  The current Senate bill repeals the Clinton order and the law it was based on.  It will result in the dismissal of numerous pending whistleblower cases, including that of FBI Counterterrorism Unit Chief Bassem Youssef.
 
Dr. Whitehurst wrote:
 
"Like most Americans I was looking forward to seeing President Obama and Congress fulfill their promise to strengthen these whistleblower rights that protect Americans.  However, I was horrified to discover that the Senate whistleblower bill does not do this.  For national security whistleblowers it does the exact opposite.  S. 372 repeals the FBI whistleblower protections that I sacrificed my career for."

Dr. Whitehurst's letter comes shortly after two other FBI whistleblowers, Jane Turner and Sibel Edmonds, issued a similar plea to fix the Senate bill.

Although many provisions of the bill enhance whistleblower protections, there are many "poison pills" that must be corrected, including these (see links to Committee on Homeland Security and Governmental Affairs report accompanying S. 372):

*Meryl Grenadier (NWC fellow) contributed to this posting.

• The three detainees were taken to a black site referred to as “Camp No,” which, according to the article, soldiers believe is operated by the CIA. Later that night, the same white van that was used to transport prisoners to “Camp No,” returned to Camp America and went directly to the medical clinic.
   
• Well before the time official reports state that the prisoners were found in their cells, accounts spread throughout Camp America that three prisoners had died by “choking on cloth.” The following morning, the camp’s commanding officer told a gathering of personnel that “we all know” that the prisoners died by choking on cloth, but an official account would be released saying that they had committed suicide by hanging themselves. All present were ordered not to contradict or undermine the official account in any way.
   
• The story then traces a cover-up of the deaths involving many different agencies of the federal government—including the Justice Department—that has continued for three and a half years, and has continued into the Obama Administration.

The NWC supports whistleblower Joe Hickman for trying to bring the truth to light. Whistleblowers would agree with Sergeant Hickman that “silence was just wrong.” Please read the full Harpers article for the rest of this incredible story.


*Meryl Grenadier (NWC fellow) contributed to this posting.

"The Exigent Letter policies flooded the FBI with records on Americans who had no relationship whatsoever to terrorist activities. In part these violations stemmed from a deeper problem - the Bureau's inability to fully understand the nature and tactics of Middle Eastern religious-based extremists.  The FBI is thus unable to correctly access threats.  That is, it cannot focus on legitimate threats and quickly dismiss false ones."

"These deficiencies constitute a grave threat to our nation's security.  If the FBI and other intelligence agencies are not able to conduct accurate and timely threat assessments, mistakes such as the recent Christmas Airline Bombing incident and the shootings at Fort Hood, Texas will continue.  Our nation will remain vulnerable to legitimate terrorist threats that will not be detected in time."

The letter also details Mr. Youssef's invaluable contribution of reducing the number of exigent letters issued by 95.29% (pages 3-5), rebuts some of the OIG findings (page 12) and suggests solutions for properly managing counterterrorism programs (page 10).  

Lindsey M. Williams, Director of Advocacy at the National Whistleblowers Center, said, "Congress should get to the bottom of this by calling Mr. Youssef to testify, so that he can explain the full story behind the exigent letters, and how the FBI's practices have undermined properly targeted terrorism investigations. "

"Mr. Youssef's invaluable contributions have once again shown why Congress needs to pass H.R. 1507 to protect all national security whistleblowers," Ms. Williams added.

The National Whistleblowers Center is asking people to TAKE ACTION by sending letters showing their support for H.R. 1507 and Mr. Youssef to their Congressional representatives.

Links:

The FBI acknowledged that many of the phone records obtained belong to individuals with no connection to terrorism. This over-collection of data and abuse of search tactics actually detracts from our national security by obstructing properly targeted terrorism investigations. 

Bassem Youssef, the highly decorated Chief of the FBI’s Communications Analysis Unit in the Counterterrorism Division, was instrumental in exposing the illegal program and forcing FBI management to take corrective action, according to the article. Mr. Youssef’s vital contributions, made in the face of a systemic violation of civil liberties, highlight the need for strong protections for national security whistleblowers. Passage of strong whistleblower legislation (H.R. 1507) is absolutely essential to protect intelligence agency whistleblowers like Mr. Youssef.

The National Whistleblowers Center is urging people to TAKE ACTION by sending letters to their representatives in Congress that express support for Mr. Youssef and H.R. 1507.


*Meryl Grenadier (NWC fellow) contributed to this posting.