On July 29, 2009 the Senate Committee on Homeland Security and Governmental Affairs unanimously reported out of committee S. 372, the Whistleblower Protection Enhancement Act of 2009. Unfortunately, this bill contains many significant differences from the House Bill (H.R. 1507), which the National Whistleblowers Center (NWC) fully supports.
This post is the eighth in a series of twelve, examining specific weaknesses in the Senate Bill. Each installment examines a crucial issue of whistleblower rights compromised by the Senate’s version of the bill.
VIII: WHAT HAPPENS TO NATIONAL SECURITY WHISTLEBLOWERS?
National security whistleblowers are the biggest losers in S. 372.
The Senate Homeland Security approved a bill that, if enacted, would seriously undercut national security whistleblower rights and set terrible precedent. It would in practice constitute an anti-whistleblower law. It would do permanent harm to "the public’s right to know," and ensure that national security whistleblowers did not "blow the whistle." This is not an exaggeration!
Title II of S. 372 (Page 38) completely ignores the findings of the General Accounting Office (GAO). The GAO conducted an in-depth review of employment-protections for employees at the CIA, the NSA and the Defense Intelligence Agency. These employees were excluded from protection in the Civil Service Reform Act of 1978. The reason for this exclusion was the issue of classified information, and whether permitting these employees access to administrative or judicial remedies could result in the improper release of classified information, and thereby harm national security.
The GAO reviewed how these intelligence agencies handle Title VII cases (i.e. cases filed with the EEOC alleging race, sex and other forms of discrimination). Under Title VII, these employees are allowed to take their retaliation cases to a jury trial in federal court.
After a systemic and in-depth review, the GAO concluded that national security employees could have full civil service protection, and could have their employment claims adjudicated in federal court, without any threat to national security. The GAO concluded that there were already in existence agency-controlled methods to prevent the release of classified information in employment cases, and that national security employees could have full civil service protection.
The Senate Committee and the White House acted as if this report never existed.
The NWC provided the GAO report and an explanation of the report to White House and Senate Committee staff. Not one objection was made by either the White House or Senate Committee staff to the findings of the GAO. This was probably due to the fact that the GAO report completely debunked the argument that national security would be endangered if national security employees were given meaningful whistleblower protection. They had no legitimate reason to deny national security employees the protection they have long deserved.
However, despite the undisputed facts set forth in the GAO report and President Obama’s campaign promises, the White House introduced a legislative proposal that ignores the GAO findings and completely guts all national security whistleblower protections. The Senate approved the White House proposal.
Tomorrow we will learn why the national security whistleblower section in S. 372, if passed, would constitute one of the most anti-whistleblower laws ever enacted into law by Congress.