Yesterday, Senator Charles Grassley and Representative Darrell Issa released a letter asking the Obama Administration for assistance in assessing the e-mail monitoring policies of all federal agencies. This letter was sent in light of Congressional and Office of Special Counsel investigations into the Food and Drug Administration’s (FDA) illegal targeting of whistleblowers for highly-intrusive monitoring.

The BBC is reporting today that the Obama administration is developing a “test” to detect whistleblowers. “Clearly there are different reasons why people leak information, the public spirited uncovering of wrong-doing being one of them,” BBC reporter Olivia Lang writes. Based on documents obtained by Mike Isikoff of MSNBC, the new program will use sociologists and psychiatrists to discover potential leakers. Perhaps these experts will be so smart that they can find whistleblowers before the whistleblowers find wrongdoing to blow the whistle on. Call me old fashioned, but I would have thought that it would be a better use of money to find what is wrong with the government programs and fix that so no one will have to blow the whistle.

The report says that the program has already been used by the intelligence agencies, and now the administration wants to expand the program to other federal departments. The program will also use polygraph examinations and look for foreign travel and contacts. Another indicator of risk is if the employee is unhappy. Perhaps the polygraph exam will cheer them up.

How accurate can such a test be? Is it good enough to use in court to prove that a whistleblower really is a whistleblower? “[N]othing is foolproof, and there is a lot of wishful thinking being portrayed as science,” says Shari Pfleeger, director of research at the Institute for Information Infrastructure Protection at Dartmouth College.

Proponents of the “insider threat program” will look for “concerning behavior.” This is a concern itself. What would such a program think of an employee who believes that agency managers engaged in illegal race or gender discrimination? How would the program distinguish between a civil rights advocate and a threat to national security?  Smart employees will learn to keep their eyes focused on the floor in front of them, and their mouths shut. “If employees are coerced and intimidated into remaining silent when they should speak out, the result can be catastrophic.”  Rose v. Secretary of Department of Labor (6th Cir. 1986), 800 F.2d 563, 565 (J. Edwards concurring). That is the real cost of a witch hunt, and the cost is too high.


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This week, the federal Merit System Protection Board (MSPB) released a report to President Obama. The report reviews hurdles federal employees have to jump before they can win a case of whistleblower retaliation. It is called Whistleblower Protections for Federal Employees. In the cover letter to President Obama dated September 2010, MSPB Chair Susan Tsui Grundmann states:

This report spells out in greater depth the difficulties a potential whistleblower may face when navigating the law to seek protection from agency retaliation. I hope you will find this report useful as you consider issues affecting the Government’s ability to protect employees who disclose fraud, waste, abuse, and other wrongdoing within the Federal Government.

An MSPB press release about the report lists some of the hurdles. (See the continuation of this blog entry for that list.) The MSPB report fails to mention other hurdles, particularly those of MSPB’s own making. Another study found that MSPB, under the prior administration, ruled for federal employees in only 1.7% of cases. The MSPB’s report cites the Federal Circuit case of Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 1153, 120 (2000), but does not mention that this case required the whistleblower to have “irrefragable proof” of mismanagement to have any protection from retaliation.

Also missing from MSPB’s report are a list of things that MSPB itself can do to improve the rights of federal employee whistleblowers. The MSPB can find that its past holdings have impeded whistleblowers from raising concerns about mismanagement, and urge the appellate courts to defer to its expertise under FCC v. Fox Television Stations, Inc., 556 U.S. ___, 129 S. Ct. 1800 (2009), and Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). MSPB can hire Administrative Law Judges, and set standards for assuring that employees have adequate time and support to complete meaningful discovery. MSPB can simplify the process for whistleblowers and the Office of Special Counsel to seek stays of prohibited personnel practices and other forms of immediate relief.

Recognizing its role as an adjudicative body, MSBP declined to express any recommendations for changes in the law. Nowadays, it is hard to find anyone who would argue that there is no need to change the law. Unfortunately, the most prominent proposal for changing the Whistlebleblower Protection Act, S. 372, is itself flawed and would add additional hurdles for federal employee whistleblowers. I recently asked my colleagues in the National Employment Lawyers Association (NELA) if any of them would take contingent cases under S. 372 if it passed.  I have had no takers. No experienced lawyer has come forward to say that this law will make it viable to represent federal employee whistleblowers. We are a long way from assuring that federal employees who speak up for taxpayers get the customary legal protections required by international law.


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Harper’s Magazine is publishing a report by Scott Horton on yet another prosecution for releasing information. Called "Obama’s War on Whistleblowers," the article focuses on the prosecution of Steven Kim, a scholar of North Korea’s nuclear program. Since Kim did consulting work for the State Department, the prosecution contends he should not have

Speigel Online is today releasing an interview with Daniel Ellsberg in which Ellsberg criticizes the Obama administration for increasing the use of criminal prosecutions against whistleblowers.  Ellsberg released the Pentagon Papers to reveal how numerous previous administrations had resorted to lying to the American people to conceal the real purposes of the Vietnam War. The