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The 25th Anniversary of the Whistleblower Protection Act

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For 25 years, the Whistleblower Protection Act has promised protections to federal workers who blow the whistle on waste, fraud, and abuse in the government. As we celebrate the anniversary of this preeminent law, we’d like to take a look at some of the developments in whistleblower protections in recent years. Though progress has been made, we still have a long way to go.

After more than a decade of advocacy by the Project On Government Oversight and our partners both in the government and in civil society, the protections set out in the original Whistleblower Protection Act have been improved greatly by the Whistleblower Protection Enhancement Act of 2012 (WPEA), legislation signed into law in December 2012. A real victory, the WPEA closed judicially created loopholes, expanded coverage of the original protections, and codified an “anti-gag” statute championed by Senator Chuck Grassley (R-Iowa).

Unfortunately, the Whistleblower Protection Enhancement Act hasn’t been fully implemented properly.

Click here to see our anniversary infographic

In a study released last week, Senator Grassley reviewed implementation of the robust “anti-gag” provisions in the WPEA, giving each of the executive branch’s 15 Departments a letter grade based on the Departments’ own documentation. The study found implementation to be sorely lacking across the board. The highest grade was a B for the Department of the Treasury, but most agencies fell into the D to F categories. The review highlights the fact that most Departments’ nondisclosure agreements violate the anti-gag provisions, thwarting efforts to protect would-be truthtellers from retaliation by their employers. The “anti-gag” provision is meant to supersede nondisclosure agreements.

In an op-ed on the review, Senator Grassley said, “Sweeping dirt under the rug violates the golden rule of Housekeeping 101. Out of sight may be out of mind, but covering it up doesn’t make it clean.” We and the other members of the Make It Safe Coalition, a support coalition for whistleblowers and whistleblower advocates, couldn’t agree more.

Senator Grassley has proven to be a tireless champion for whistleblower protections, recently testifying in a House Oversight hearing on the FDA’s spying on whistleblowers earlier this year. POGO’s Angela Canterbury also testified at that hearing. POGO is very pleased that Senator Grassley announced this week his intent to form a Whistleblower Protection Congressional Caucus for Members of Congress to become more informed and to more formally organize support for whistleblowers and government accountability.

An obvious lowlight for whistleblower protections in the government is the lack of protections within the intelligence community. Whistleblowers handling classified information have very limited legal channels through which to report wrongdoing—a gap in protections that has been noted by Edward Snowden and has affected other NSA whistleblowers such as Tom Drake. Presidential Policy Directive 19 aims to cover whistleblowers with security clearances, but the directive is an internal system without independent oversight or adjudication. It also does not explicitly cover intelligence community contractors. Reports on implementation have been slow to surface.

However, thanks to Senators Susan Collins (R-Maine) and Ron Wyden (D-Ore.), the Senate Select Committee on Intelligence included some protections for national security and intelligence community whistleblowers in the Intelligence Authorization Act for Fiscal Year 2014. The proposed reforms would provide statutory protections for those with security clearances or access to classified information—a real first. The bill is currently being reconciled with the House version and hopefully will soon become law.

A development involving “national security sensitive” positions is particularly troubling. The deeply flawed Kaplan v. Conyers, Northover, and MSPB court decision stripped federal employees of their right to appeal a personnel action—which may even include discrimination or retaliation for whistleblowing. The court held that federal agencies have unlimited discretion to take adverse actions pertaining to the eligibility to occupy a national security position without any review. In the wake of this decision, agencies may abuse the designation of “national security sensitive” to strip employees’ rights to blow the whistle, even if the employees are not accessing classified material.

Following the decision, POGO’s Angela Canterbury testified before the Senate Homeland Security and Governmental Affairs Subcommittee on Efficiency and Effectiveness of Federal Programs and the Federal Workforce. In her testimony, Canterbury called for congressional action, saying, “It’s time for Congress to be far less deferential to this Administration and others on claims of national security that undermine our liberties and cloak wrongdoing. Congress must assert its constitutional powers to restore the balance between the branches of government.”

Bipartisan legislation introduced in the House by Delegate Eleanor Holmes Norton (D-D.C.) and seven cosponsors, H.R. 3278, and in the Senate by Senator Jon Tester (D-Mont.) with original cosponsors Senators Grassley and Claire McCaskill (D-Mo.), S. 1809, aims to do just that. The reform would reverse the activist court decision, clarifying the civil service and whistleblower protections Congress always intended.

In a press release from the Make It Safe Coalition celebrating the 25th anniversary of the WPA’s passage, Canterbury notes:

Today marks a quarter-century of a landmark law that promises to protect all Americans and their tax dollars by preventing the suppression of government wrongdoing and the intimidation of truthtellers. But all federal workers still do not have a fighting chance at justice when they suffer for having blown the whistle on waste, fraud, and abuse. In spite of critical recent reforms with extraordinary, bipartisan support for whistleblower protections—more must be done. In particular, our national security workforce—including contractors—must have real protections for making legal disclosures of wrongdoing.

To fully honor the strides made in the Whistleblower Protection Act 25 years ago, we need to continue to fight for the rights of all whistleblowers, not just some.

By: Christine Anderson
Public Policy Fellow, POGO

Christine Anderson Christine Anderson is a public policy fellow for the Project On Government Oversight.

Topics: Whistleblower Protections

Related Content: Reform Agenda, Advocacy

Authors: Christine Anderson

Submitted by wbdiary at: April 15, 2014
I contacted Senator Charles Grassley because someone told me he was a proponent of veterans and whistle blowers protections. Never heard a word from him or his office. http://whistleblowerdiary.wordpress.com/2014/04/08/wake-up-ed-schultz-would-be-whistleblowers-given-false-sense-of-protection/
Submitted by whistleblowerdr at: April 14, 2014
The Whistleblower Protection Act is filled with holes that one can fall into and the whistleblower has trouble getting out of the terrible retaliation that awaits them. The case law is also in favor of the government so what is the lonely whistleblower to do? I have over the past 40 years developed a way to blow the whistle with the least amount of damage. My new book is like the Heimlich maneuver and if you do not know how to blow the whistle your career will be over fast. So pass along the word to future whistleblowers to read the book and learn the lay of the land first before jumping into the fight for survival. "Don't Kill the Messenger!" How America’s Valiant Whistleblowers Risk Everything in Order to Speak Out Against Waste, Fraud, and Abuse of Power in Business and Government New Book by U.S. Expert, Don Soeken of the Whistleblower Support Fund, depicts Whistle-Blowing Details and “Shocking Abuses” at NSA, FBI, DOD, Department of Agriculture, Library of Congress, Department of Interior, and the Department of Transportation. Share on TwitterShare on FacebookShare on Google+Share on LinkedInEmail a friend Washington, D.C. (PRWEB) A newly published book by a former U.S. Public Health Service (USPHS) officer who has spent more than 35 years counseling whistleblowers describes in startling detail how several American truth-tellers recently put their lives on the line in order to expose major abuses at several federal agencies . . . including the Federal Bureau of Investigation, the National Security Agency and the Department of Defense. The just-published book – Don’t Kill the Messenger! How America’s Valiant Whistleblowers Risk Everything in Order to Speak Out Against Waste, Fraud and Abuse in Business and Government – recounts the harrowing experiences of nine whistleblowers who found the courage to “go public” with reports of alleged lawbreaking at the highest levels of the U.S. Government. Written by Donald Ray Soeken, Ph.D., whose long career as a counselor and expert witness for some of America’s most high-profile whistleblowers has been featured in the New York Times and Parade Magazine, on CBS 60 Minutes and in numerous other publications, Don’t Kill the Messenger! exhaustively details the personal struggles of whistleblowers who have recently alleged: --That the massive National Security Agency routinely violated its own rules and the U.S. Constitution by spying on the electronic communications of American citizens, without obtaining legally mandated search warrants; --That the U.S. Marine Corps, in spite of its long and proud tradition of service, failed to acquire easily obtainable armored vehicles which would have protected its own soldiers from explosive devices in the Iraq War . . . a failure that resulted in the needless death or maiming of hundreds of Marines, and which occurred because military requisitioning officers were more interested in preserving cushy contracting relationships than in identifying and obtaining the safest possible personnel carriers for their combat forces; --That the FBI routinely violated the rights of accused lawbreakers by improperly operating its forensic laboratory and slanting its findings in order to help federal prosecutors obtain federal convictions, instead of analyzing evidence impartially and thus protecting the rights of suspects who were supposed to “presumed innocent until proven guilty.” The new Soeken book, which also documents the stories of bold Americans who blew the whistle on alleged corporate malfeasance in the 1986 space shuttle disaster and continuing engineering and manufacturing failures in the production of nuclear-missile components for the Pentagon, is being praised as “starkly compelling” and full of “vivid, unforgettable detail” by such early reviewers as famed corporate whistleblower Jeffrey Wigand. Wigand (whose own whistle-blowing story was documented in the 1999 blockbuster film The Insider), describes Don’t Shoot the Messenger! as “a highly suspenseful book that often reads like a contemporary political thriller” – but then goes on to tell readers: “Along with its chilling narratives, however, the book contains a vitally important warning for all of us – we must protect our truth-tellers if we hope to preserve our constitutional freedoms and the rule of law.” Dr. Soeken, who was instrumental in the passage of landmark congressional legislation that ended the practice of forcing federal civil servants in the legislative branch to take “fitness for duty” psychiatric exams (he testified at length on Capitol Hill about his own experiences as a counselor to many of those victimized federal employees while reaching the rank of Captain in the USPHS), spent more than three years writing the new book. “It was a long and arduous process,” he said, while noting that he had served at one time or another as a counselor to all nine of the whistleblowers whose stories are related in the book. “But I was convinced when I started – and I’m still convinced today – that we need to understand what whistleblowers go through in this country, en route to telling the world about abuses that threaten our liberties in the America we all love." “I hope that Don’t Kill the Messenger! will open a much needed window on the often disastrous injuries that are so often inflicted on those brave citizens who decide to risk everything for the sake of the truth.” To learn more about the book and how to get a copy: http://www.whistleblowing.us For Immediate Release Contact: Donald R. Soeken 01-301-953-7353 donsoeken(at)gmail(dot)com Author is Available for Interviews

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