(Washington, D.C.) – The Government Accountability Project (GAP) today praised unanimous action by the Senate Homeland Security and Governmental Affairs Committee (HSGAC) approving S. 372, legislation to overhaul the Whistleblower Protection Act (WPA). GAP legal director Tom Devine commented, “This is a giant step on the road to the promised land for federal whistleblowers. The critical breakthrough is that the key Senate committee has unanimously approved a bi-partisan mandate for jury trials.” Previously there only had been a consensus for that reform in the House, which has passed it twice. GAP credited Administration leadership for the successful committee vote. “This good government breakthrough only occurred because of a relentless White House commitment for an unprecedented public-private consensus,” Devine added.

Despite this conceptual breakthrough, another major hurdle is left before the legislation is ready for final votes. The House Oversight and Government Reform Committee will take the lead on finalizing rights for national security whistleblowers at the CIA, NSA, FBI and other agencies with intelligence duties. The reforms only would protect disclosures within government agencies and to Congress. But whistleblower advocates believe this will be the toughest, highest stakes challenge. “Intelligence agencies have too much to hide,” explained Devine. “The last month’s exposures reveal that what we have known about outrageous Bush administration NSA and FBI domestic surveillance is only the tip, not the iceberg, of government attacks on freedom. It took the President and CIA director six months to learn the agency had lied to Congress about foreign assassination programs.”

The emerging legislative consensus includes the following reforms so far:

  • Closes judicially-created loopholes to the law’s protection, such as canceling the effect of a Supreme Court decision, Garcetti v. Ceballo, which limits federal workers’ free speech rights while carrying out job duties.
  • Provides those covered by the WPA access to jury trials in federal district court to challenge major disciplinary actions.
  • Ends the Federal Circuit Court of Appeals monopoly on appellate review of the Whistleblower Protection Act (The Court has single-handedly gutted the WPA, leading to a 3-201 record against whistleblowers for decisions on the merits from October 1994 through July 2009), restoring all-Circuit review, as in the original 1978 Civil Service Reform Act and the Administrative Procedures Act.
  • Extends WPA rights to some 40,000 airport baggage screeners.
  • Provides normal whistleblower rights to those who refuse to violate the law.
  • Creates specific protection in the law for scientific freedom, making it an abuse of authority to censor, obstruct dissemination, or misrepresent the results of federal research.
  • Restores the unqualified, original “reasonable belief” standard established in the 1978 Civil Service Reform Act for whistleblowers to qualify for protection.
  • Makes permanent and provides a remedy for the anti-gag statute – a rider in the Treasury Postal Appropriations bill for the past 17 years – that bans illegal agency gag orders. The anti-gag statute neutralizes hybrid secrecy categories like “classifiable,” “sensitive but unclassified,” “sensitive security information” and other new labels that lock in prior restraint secrecy status, enforced by threat of criminal prosecution for unclassified whistleblowing disclosures by national security whistleblowers.
  • Provides specific authority for whistleblowers to disclose classified information to Members of Congress on relevant oversight committees or their staff.
  • Provides compensatory damages up to $300,000, and reimbursement for expert witness fees to prevailing whistleblowers, establishing consistency with other remedial employment laws.
  • Modifies the burdens of proof to make it more realistic for the Office of Special Counsel to seek disciplinary accountability against those who retaliate.
  • Provides the Special Counsel with authority to file friend of the court briefs in support of whistleblower rights cases appealed from the administrative level.

Government Accountability Project

The Government Accountability Project is the nation’s leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, GAP’s mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, GAP is a non-profit, non-partisan advocacy organization based in Washington, D.C.