(Washington, D.C.) – On the anniversary of 9/11, the Government Accountability Project (GAP) is highlighting a little-noticed backroom showdown over whether to restore credible government whistleblower protection rights. Today, GAP is delivering its legal rebuttal to Justice Department attacks on legislation to overhaul the Whistleblower Protection Act (WPA), which was unanimously approved by the Senate in June as an amendment to the 2007 defense authorization bill. All House members on a conference committee reconciling House and Senate versions of the defense authorization legislation will receive the rebuttal.
GAP Legal Director Tom Devine explained, “This is a test to determine whether the House Republican leadership’s antiterrorism commitment means restoring rights for professionals on America’s front lines, or is just a smokescreen for billions of dollars in additional pork to homeland security contractors. Most significantly, their choice will reveal whether Congress wants to know about real threats to America’s security.”
This past June, the Senate unanimously added the whistleblower reform to the defense bill, after a Supreme Court decision canceled constitutional free speech rights for government employees. Although the House Government Reform Committee has unanimously approved an even broader version of the Senate legislation, the House did not consider whistleblower provisions when it passed its version of the defense bill. This week, members of a joint conference committee expect to resolve the differences.
In a briefing packet to the defense bill conferees, Devine contended, “Whistleblowers are America’s human failsafe against terrorism and other threats when the bureaucracy lets us down. Under current law they can’t defend themselves against cover-ups that sustain government homeland and national security breakdowns.”
Protecting government employees’ freedom to warn is the key for the 9/11 Commission’s recommendation to prevent another tragedy: Protect the flow of information that provides advance alarms of threats and vulnerabilities. Whistleblowers repeatedly have proved they are in the pivotal position for that lesson to be properly learned and implemented.
This summer, whistleblowers convinced the Department of Homeland Security to stop routinely blowing the cover of its undercover Air Marshals, who now will have a chance to thwart future hijackers. Other whistleblowers exposed how DHS routinely makes immigration decisions on residency without checking evidence files on terrorist connections flagged for specific applicants.
Devine emphasized, “9/11 is the most blatant lesson of what could happen again if we silence or don’t listen to whistleblowers warnings. Just months before the tragedy, whistleblowers were ignored when exposing a total security breakdown at the same Boston airport gate that hijackers exploited on 9/11. Secrecy enforced by repression is a clear and present danger to America’s safety, because it covers up bureaucratic breakdowns that sustain America’s vulnerability to terrorism.”
A May Supreme Court decision, Garcetti v. Ceballos, took away free speech protections for any government worker to disclose fraud, waste or abuse on the job. The Court ruled that current whistleblower laws make constitutional rights unnecessary. However, the WPA has been routinely gutted by hostile judicial activism since it was strengthened in 1994. The law routinely creates far more reprisal victims than it helps. Since 1994, the specialty court with monopoly power over the law’s interpretation has ruled against whistleblowers in 122 out of 123 decisions on the merits. Since 1999, Merit Board administrative hearings have ruled against them in 53 out of 55 cases, including all since 2003 when the president’s newly-appointed Board chairman took office.
Devine charged, “The Justice Department’s objections to the conferees assume ignorance and are an insult to Congress. DOJ merely reiterated without further explanation a list of criticisms that the Senate Homeland Security Committee unanimously has rejected three times since 2002, along with heavily-researched committee reports explaining how the administration’s attacks could not withstand scrutiny. The Justice Department even trotted out old objections for House conferees that it gave up on before the Senate vote, after the Homeland Security Committee successfully called the bureaucratic bluffs.”
The Senate legislation has four cornerstones – 1) restoration of paper rights previously approved by Congress and thrice erased by judicial activism; 2) normal access to appeals courts so Congress isn’t forced to re-legislate this law after another five years of judicial activism; 3) due process rights against security clearance retaliation (the primary harassment tactic against whistleblowers challenging security breaches, because it is not currently covered by the whistleblower law); and 4) protection against gag orders on whistleblowing disclosures of unclassified information, a move that also codifies protection for a wide range of disclosures from food and drug safety to scientific freedom on climate change.
Legislation unanimously passed by the House Government Reform Committee closely mirrors the Senate legislation, with three additions: 1) providing access to jury trials for a fair day in court, as available to corporate workers since the 2002 Sarbanes Oxley law; 2) extending WPA coverage to all workers paid with taxpayers funds, including airport baggage screeners, government contractor employees, and intelligence agency whistleblowers; and 3) limiting the “states secrets privilege” so it does not cancel national security whistleblower reprisal cases.
In August, House Government Reform Committee Chairman Tom Davis (R.-Va), pioneer House sponsor Todd Platts (R.-Pa.), and Ranking GRC Member Henry Waxman (D.-Cal.) wrote to the defense conference leaders, House Armed Services Committee Chairman Duncan Hunter (R-Cal.) and Ike Skelton (D.-Mo.), asking that the conference consider the House committee’s reforms as well. Devine commented, “All employees paid with taxpayer funds should have the same whistleblower rights protecting corporate workers approved by Congress in the 2002 Sarbanes Oxley law. Those defending America’s families from another 9/11 need protection just as strong as those defending America’s investments from another Enron.”
The Make it Safe Coalition, made up of 40 taxpayer rights, good government and national security organizations, has reinforced the message to Congress. The group explained in a letter to Hunter and Skelton last month that whistleblowers consistently have sacrificed their careers, because “they did not have the legal right to defend themselves when they tried to defend the public.”