Whistleblower rights legislation signals changing of the guard

Earlier this week, the U.S. House of Representatives approved an amendment, advanced by a bipartisan duo of congressman, that essentially pastes in whole into the pending economic stimulus legislation the text of the previously stalled Whistleblower Protection Enhancement Act of 2007.

This unexpected, at least under-the-radar, move is like a cannon shot signaling the end of the nightmare world inhabited by whistleblowers under the Bush administration.

In the course of doing investigative reporting over the years for Narco News during the Bush era, I have followed the stories of numerous whistleblowers and watched helplessly as they were churned through a predictable path of career destruction at the hands of the Bush regime for their acts of “committing the truth.”

The retaliation was always swift, including transfers (sometimes to closets, literally), demotions, isolation, criminal investigations, wiretapping, psychological abuse and ultimate inaction by government agencies and Congress on the whistleblower’s substantive claims of government fraud, waste, abuse and corruption.

Even the mainstream media during the Bush era acted like an arm of the government, in most cases, in further marginalizing these individuals (normally ignoring them completely) or worse, ridiculing their revelations on little more than the word of the very government agencies that were harboring the corruption. Sure, that started to change a bit toward the end of the Bush administration, when it became safer and more fashionable to report government abuse — but only after the “unitary” power of the president began to exhibit chinks in its armor (largely inflicted as a consequence of the administration’s own hyper-megalomania). However, this rediscovered mainstream media courage has done little to change the course of whistleblower abuse within the government.

So the amendment approved by the House this week is, in my opinion, a prelude to an historic step forward for our democracy — though one I expect will not be recognized as such for some years to come. If passed by the Senate, without being watered down, and signed into law by President Obama, we will no longer have to rely on the fickle courage of the media to serve as a fourth estate in protecting our freedoms, because whistleblowers may at long last be granted that status — and they have been tested in fire and have proven time after time to have courage when it is needed most: when it is not popular or fashionable to tell the truth.

The significant protections and enhancements that are part of the whistleblowers amendment would accomplish the following:

• Extend or strengthen whistleblower protection for FBI and intelligence agency employees; Transportation Security Administration workers (such as airport screeners); federal scientists; and federal contractors.

• Provide whistleblowers with the right to a jury trial; open the door to the entire federal court of appeals system for review of adverse rulings (breaking the monopoly on such appeals now held by the extremely whistleblower-hostile Federal Circuit); bar the federal administrative judicial system (the Merit Systems Protection Board) from summarily ruling against a whistleblower before the individual has a chance to present evidence of retaliation; offer greater protection against retaliatory investigations; allow whistleblowers to be awarded compensatory damages; and guarantee due-process rights to whistleblowers who expose fraud and corruption during the course of a government investigation or who refuse to engage in conduct that would violate the law.

National Security

The Bush administration became deviously expert at covering up wrongdoing by invoking national security and the state secrets privilege — which provides the Executive Branch with nearly unfettered power (rarely, if ever, effectively challenged by Congress or checked by the courts) to simply obliterate whistleblower allegations from the public record and to criminalize the release of information by any national security whistleblower.

The House amendment sets up strong checks against one tactic used regularly by the Bush administration to silence national security whistleblowers — the suspension or revocation of their security clearances, which sets up a justification for terminating employment. However, in other crucial areas, the pending legislation appears to fall short.

National security expert Bill Weaver, Ph.D., who has penned articles for Narco News in the past, testified before Congress in early 2007 as the original bill that is now included as an amendment in the House version of the stimulus package was being debated — in the House Committee on Oversight and Government Reform.

Weaver stated the following as part of his House testimony:

National security whistleblowers are at even greater danger and with less protection than whistleblowers in other settings. At least in the non-national security setting, the federal whistleblower has access to some process and may resort to publication and news media, fully consult counsel, and access evidence relevant to his or her case. But national security employees are ensconced in secrecy. They are hemmed in by security clearances and access, threats of criminal prosecution, and non-disclosure and pre-publication review agreements.

… The proposed legislation [now part of the House amendment] as it regards national security whistleblowers is a welcome foray into what is normally an area of unchecked, unaccountable executive power. The legislation is a commendable effort by Chairman Waxman and members of this Committee. It is notable for several reasons.

First, the extension of whistleblower protection to employees in intelligence and counter-intelligence agencies and civilian contractors would substantially aid Congress in its ability to discover and inspect questionable activity in the operations of agencies and the awarding and execution of government contracts. Particularly noteworthy is that demotion, discharge, and other discriminatory acts by agencies in retaliation for national security whistleblower disclosures would be prohibited. Heretofore, intelligence and counter-intelligence agencies have been exempted from complying with statutory whistleblower protection.

Second, the statute prohibits “denying, suspending, or revoking a security clearance” in reprisal for whistleblowing and requires agency action against employees’ security clearances to be based solely in legitimate concerns for national security. This is a direct and welcome challenge to one of the main tools intelligence and counter-intelligence agencies employ against whistleblowers.

Still, Weaver noted a serious weakness in the legislation as it existed at that time, a weakness that based on a reading of the whistleblower amendment attached to the stimulus package does not appear to be addressed even now.

Weaver, in his testimony, explains it far better than I could:

Despite the virtues described above, the statute has substantial weaknesses that should be remedied before it is introduced.

The expansion of the number of committee and congressional members “authorized” to receive classified information from whistleblowers is a significant move in the right direction. But protection against reprisal for disclosing covered information “to an authorized Member of Congress” is a hollow promise at best and a siren lure to catastrophe at worst. Since Congress has not challenged executive branch power to control access and dissemination of national security information, just what constitutes an “authorized Member of Congress” is wholly at presidential discretion either before or after the fact of disclosure. In any particular case, the president or affected agency may conclude that no member of Congress has the requisite authorization to receive information that would aid Congress in its constitutionally mandated duties of oversight.

Since classified information comes with numerous control caveats and dissemination limitations, it is insufficient to meet the floating standard of “authorized” that a Member of Congress receiving the disclosure merely have a security clearance. An agency may after the fact simply assert that the disclosure was unauthorized and retaliate against the whistleblower. Or, in more ominous fashion, the agency may threaten would-be whistleblowers, intimidating them into silence. Such intimidation frequently frustrates congressional efforts to get at the truth of executive branch misbehavior.

Weaver proposed in his testimony that the whistleblower bill include the following specific guarantee to address the “authorized” conundrum: “No covered employee under this provision shall be criminally charged or prosecuted for any disclosure, or attempted disclosure of covered information to a Member of Congress.”

And with respect to the state secrets privilege, Weaver warns that the broad power invoked by the Bush administration on this front remains a danger to the democracy with respect to its power to silence national security whistleblowers who have legitimate concerns over actions taken by our government that actually undermine national security.

Again, in his testimony, Weaver explains the problem (which does not appear to be fully corrected in the current legislation, even with its provision requiring the Executive agency to submit a report to “authorized” members of Congress when asserting the state secrets privilege):

… Our friends at the National Whistleblower Center rightly point out a problem with the proposed language concerning the state secrets privilege. The draft statute states that, “if the assertion of [the state secrets] privilege prevents the plaintiff from establishing an element in support of the plaintiff’s [whistleblower’s] claim, the court shall resolve the disputed issue of fact or law in favor of the plaintiff.” This language does not seem to address those cases where the government moves for dismissal of the entire case based on the state secrets privilege.

… Therefore, one of two possible additions should be made to the proposed statute. …:

1) “An executive branch agency may not move to dismiss a claim under this provision based on any assertion of privilege, but may request and obtain special procedures from the court in order to protect classified or secret information.”

Or

2) “If a court finds under this provision that a defendant agency’s assertion of privilege is properly raised, and that privilege would otherwise warrant dismissal of the action, then judgment shall be made in favor of the plaintiff.”

The whistleblower amendment now proceeds to the Senate, where its survival is not assured, or where some Senator with something to hide could work to eviscerate its protections. If we really believe in an open democracy, any such effort should be met with a loud cry of protest from the people of this land. We must be vigilant on this one.

More than that, we should do all within our power to assure that the bill is strengthened further, as Weaver suggests.

President Obama has promised us a new era of open and transparent government. I believe he means it, but he can’t accomplish it alone, even with all the power of the Oval Office. We must invoke the power of the people on this one as well — to assure that those who seek to thwart freedom by appealing to fear are crushed by the power from the bottom as well as the top.