Yesterday a story in the Politico newspaper reported that whistleblower and employee free speech protection groups, including GAP, are worried that the Whistleblower Protection Enhancement Act, currently stalled in the Senate, will not adequately protect FBI whistleblowers.
GAP would like to take this opportunity to expand on what was reported in the story, to provide a clearer picture and set the record straight.
First, there is no disagreement between the White House and congressional staff, in the House or Senate, that the problem must and will be fixed before final passage of legislation to restore a credible Whistleblower Protection Act. Other serious issues remain disputed, some hotly, but this is not one of them.
Second, in our view, whistleblower supporters who deserve our trust, such as Hawaii Senator Daniel Akaka and President Obama, have not let down whistleblowers or the American public on this issue. While we disagree with them on specific details, they have been public servants in their unqualified commitment to strengthening whistleblower protection. Senator Akaka has, time after time, proven his unqualified commitment to stronger whistleblower rights, illustrated by his quiet personal strength and stamina during this ten-year marathon to restore a viable Whistleblower Protection Act. His efforts are unsurpassed by any other member in Congress. With respect to President Obama, throughout his professional history and now through his White House staff, he has been a hero to whistleblowers. While many of us disagree on the extent of rights for FBI and intelligence agency employees, no President in GAP’s 32-year history has worked as hard to help and support whistleblowers to strengthen their rights. In fact, no other President has come close, and he is the first President to play it straight with us.
“Change we can believe in” and reform do not just happen: These two key offices have been walking the walk, doing the seemingly endless, unglamorous, hard work to earn genuine whistleblower rights for federal workers. Their efforts deserve recognition and credit.
There is, however, a real issue in the legislation involving FBI whistleblowers. Those enacting the law need to fix it for the reforms to be legitimate. Under the current law, complaints from FBI whistleblowers go to the Justice Department, and allegations are investigated by the Inspector General or the Office of Professional Responsibility. However, in the new bill, national security officials are writing the sections that would govern how to protect their own agents. The Politico story accurately quoted:
“The problem – and there is a problem – is that the new regulations or the modified procedures could be written by the FBI instead of the attorney general and that would allow the FBI to write the rules that could be applied to its own alleged misconduct,” said Tom Devine, legal director of the Government Accountability Project. “That’s a conflict of interest, and it’s not acceptable.”
We also do not trust the new Intelligence Community Whistleblower Protection Board as a credible proposal for independent due process hearings. Its members would be picked by the leadership of intelligence agencies. It would be restricted to appeals while the defendant agencies still control the day in court. It could make ruling based on secret evidence not available to the whistleblower. As a bottom line it only could issue advisory decisions when a whistleblower is fired, lacking the authority to give whistleblowers back their jobs even if it found that firing them was illegal.
National security rights are a work in progress, but the Senate is a procedural gauntlet. GAP has been working for decades toward the passage of stronger whistleblower protections, and believes killing a bill in the Senate will set back the cause for years, all while the odds keep getting longer. We have accomplished a lot already, such as jury trials for the first time in history to enforce free speech rights for the 98% of federal workers not in the FBI or intelligence agencies. We have an unqualified commitment not only to retain current FBI rights, but to strengthen them through credible due process. But the key to turn all these goals into reality is Senate approval of the core legislation.
“If we don’t get this bill out of the Senate, there could be nothing,” Devine said.
