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MONDAY 15 MARCH 2010 Share

Hotlined Senate Bill Weakens Whistleblower Protection

Monday 15 March 2010

by: Yana Kunichoff, t r u t h o u t | Report

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(Image: Jared Rodriguez / t r u t h o u t; Adapted: stevendepolo, GrungeTextures)

Changes to the Whistleblower Protection Enhancement Act currently working its way through the Senate would cover up intelligence failures and civil liberties abuses in the Federal Bureau of Investigation (FBI) by repealing existing protections for FBI whistleblowers and strengthening the state secrets privilege.

The bill is currently being "hotlined" through the Senate, which entails both the Senate majority leader and minority leader agreeing to pass the legislation by unanimous consent without a roll-call vote. This practice is usually used to pass uncontroversial bills and simple procedural motions, but opponents fear it is being used to push through this measure with little or no public debate.

"It's unethical to use an 'enhancement act' as a vehicle for repealing existing whistleblower rights," said Stephen Kohn, executive director of the National Whistleblowers Center, an advocacy organization which aims to protect federal employees who speak out about wrongdoing in the workplace.

Though the hotlining process allows senators to object to the passage of a bill in an alloted amount of time, sometimes as little as 15 minutes following its adoption, advocates believe that the unseen power of the FBI in the nation's legislature will ensure that the bill passes.

If it does, it would effectively remove federal employees working for the FBI from protection under the Civil Service Reform Act of 1978, which specifically protects whistleblowing in the workplace.

Kohn, an attorney who has represented prominent whistleblowers in court, says the provision would mean that FBI employees must prove "gross mismanagement" if they are to speak out on wrongdoing in the workplace, which "would make it very difficult to prove" as most bigger investigations start with a "small mismanagement."

He lays responsibility for the passage of this law with Sens. Joseph Lieberman and Susan Collins, respectively the chairman and ranking member of the Committee on Homeland Security and Government Affairs. People should know "if it does get hotlined, their senators went along with it," Kohn said.

Neither Senator Lieberman's nor Susan Collins' office responded to requests for comment.

According to a letter signed by well-known national security whistleblowers and advocates, the bill "will become known as the Whistleblower Discouragement Act of 2010 if these provisions related to national security and FBI employees are not fixed. The ability of Inspectors General, Congress and the American public to learn about waste, fraud and abuse in numerous agencies that spend hundreds of billions of dollars will be completely undercut. Intelligence failures that led to incredible blunders both before and after the 9/11 attacks will be hidden from oversight and scrutiny. Although honest federal employees who desire to inform their government officials of mistakes and abuses will be the first victims of S. 372, the real victim will be the American people.”

However, it is not only those who work with the FBI that will be affected by this. "The current version [of the bill] will set whistleblower protections back 30 years for hundreds of thousands of federal employees," the letter went on to say.

The act of whistleblowing and what federal employees have blown the whistle on ranges from Bunnatine Greenhouse standing up against contracts given to Halliburton for the reconstruction of Iraq to Jane Turner uncovering failures in the FBI's protection of child sex crime victims to Joseph Carson speaking out against safety violations at the Department of Energy.

Protections for whistleblowers have also long been a matter of debate - many prominent whistleblowers have cases pending for whether their release of often sensitive information was warranted, and federal employees with lower profiles often suffer intimidation and job discrimination for their pains.

Carson, who has been called a career whistleblower, was denied job duties, told he was an unacceptable employee and had his security clearance threatened with removal, which would have kept him from being able to do his job, for trying to highlight safety problems in his workplace.

He said, however, that the problem goes far beyond whistleblowing and, in focusing on the workforce retaliations which he and countless other suffered, "obscures the forest for the trees."

According to Carson, it is the inherent weakness of the US Office of Special Counsel (OSC), set up to protect the rights of federal employees against employer retribution and other discrimination, which "violates the heart of the federal civil service" and "has been so corrupt it has never really pushed what its powers are to protect federal employees."

The systemic nature of the intimidation, which he and countless other whistleblowing federal employees suffered, has led Carson to turn the fight away from his employers to the OSC itself - he has been involved in a federal legal appeal against the OSC for 18 years. If he wins, he will have the agreement of a federal court that the OSC did not do its duty. If he loses, he plans to take his case to the Supreme Court.

"There is a good news aspect to this in the sense that this is fixable," said Carson. However, until then, "I would have to frankly advise any concerned federal employee, if you can't live with yourself looking the other way, don't."

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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.

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.