Obama “Protect Whistleblowers” view should aid bill passage, encourage reporting of wrongdoing

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The Obama-Biden transition website says: “Protect Whistleblowers: Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out…. We need to empower federal employees as watchdogs of wrongdoing and partners in performance.” This is a critical area for the new administration to make good on its promise.

Post by Rick Piltz

From the “Ethics Agenda” on President-elect Obama’s transition website:

Protect Whistleblowers: Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government. Obama will ensure that federal agencies expedite the process for reviewing whistleblower claims and whistleblowers have full access to courts and due process.

The Washington Post reported on December 11 (“Whistleblowers May Have a Friend in the Oval Office”):

Whistleblowers in the federal government and those who work to protect them see a longtime friend in the next president.

“Attorney Obama and Senator Obama and candidate Obama and President-elect Obama have all supported whistleblower rights,” said Adam Miles, the legislative representative for the Government Accountability Project, a public interest group that bills itself [RP note: correctly] as the nation’s leading whistleblower organization.

Obama’s whistleblower trail starts before his days in public office….

As a presidential candidate, he endorsed whistleblower protection legislation in the House that is stronger than the bill he voted for in the Senate….

The legislation would strengthen the 1989 Whistleblower Protection Act. It was designed to protect government workers who blow the whistle on government wrongdoing, but it has been weakened by court decisions.

One obstacle to passage of a stronger act should disappear next month when President Bush leaves office. In a letter to Congress last year, Attorney General Michael B. Mukasey said the legislation is “burdensome, unnecessary and unconstitutional….”

GAP summary on Whistleblower Protection Act Amendments bills in the 110th Congress::

Whistleblower Protection Act Amendments – H.R. 985 and S. 274

Why are Amendments to the Whistleblower Protection Act Necessary?

In 1989, Congress unanimously passed the Whistleblower Protection Act (“WPA”) as the premier good government law for the federal civil service. Unfortunately, the law has been functionally overturned by a series of increasingly hostile case decisions from the U.S. Court of Appeals for the Federal Circuit, which holds a monopoly on judicial review of whistleblower cases.

The Court now excludes the most common situations in which whistleblower disclosures are made, Including if the whistleblower disclosure is made in the course of doing one’s job duties (like an auditor or safety inspector), or if the disclosure challenges illegal government policies. 

The bottom line is that government whistleblowers virtually always lose hearings and appeals when they challenge retaliation, which means the law is hurting freedom of speech more than it is helping. Since Congress unanimously strengthened the law in 1994, whistleblowers have a 2-193 track record at the Federal Circuit for decisions on the merits. 

The attacks on September 11, 2001, resulted in a wave of whistleblowing by those on the frontlines protecting the United States from further acts of terrorism. Unfortunately, these employees are the most vulnerable to retaliation when they disclose government wrongdoing that is threatening U.S. national security. The first tactic used by managers fearing criticism and embarrassment if security failings are exposed is to silence security professionals by suspending or revoking their security clearance. There is currently no independent review of security clearance revocations, so this type of retaliation almost always results in the termination of the employee who spoke out. 

Jury trials for cases of whistleblower retaliation are necessary because they have long been recognized as a whistleblower’s only genuine opportunity for a fair day in court – with justice decided by the taxpayers who the employee purports to defend while risking professional termination. In 2002, Congress provided that right to corporate workers. In July 2005, it extended the right to Department of Energy and Nuclear Regulatory Commission whistleblowers.

What would the Amendments Do?

The amendments codify the legislative history of “any” protected disclosure, restoring the scope of protection already approved by three unanimous votes, overturning a series of activist decision from the Federal Circuit that gutted the original scope of protection for employees.

The House bill grants jury trials to federal whistleblowers.

The House bill extends genuine rights to employees of the FBI and intelligence agencies and to all employees of government contractors. 

The House bill extends specific protections to government scientists.

The amendments make permanent the anti-gag statute – an annual rider in the Appropriations bill for the past 16 years – and make it a prohibited practice to issue an illegal gag order. 

The amendments codify protection against retaliatory investigations against whistleblowers. 

The amendments end the Federal Circuit Court of Appeals monopoly on appellate review, restoring All Circuit review as in the 1978 Civil Service Reform Act and the Administrative Procedures Act. 

The amendments allow due process review of security clearance determinations for whistleblower reprisal. 

The amendments provide specific authority for whistleblowers to disclose classified information to Members of Congress on relevant oversight committees or their staff who have the appropriate security clearances.

GAP’s detailed response to Attorney General Mukasey’s misguided opposition to protecting whistleblowers

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