“[D]emocracy’s best oversight mechanism: public disclosure”
9-11 Commission Report

In May 2002, a memo written by FBI Special Agent Coleen Rowley to FBI Director Robert Mueller brought unprecedented public attention to the government’s shortcomings in investigating the terrorists suspected in the September 11th attacks. This attention and the work of the 9/11 families helped give birth to the independent 9/11 Commission tasked with investigating the devastating terrorist attacks. It also prompted Time Magazine to recognize Rowley as one of three Time Persons of the Year in 2002.2

Since 9/11, whistleblowers have felt compelled to come forward in greater numbers to address our nation’s security weaknesses – in fact almost 50% more annually have sought protection against retaliation. Officials at the federal government’s whistleblower protection agency, the U.S. Office of Special Counsel, noted that the increase “was prompted, in part, by the terrorist events of September 11, 2001, after which the agency received more cases involving allegations of substantial and specific dangers to public health and safety and national security concerns.”3 (Appendix A)

Whistleblowers like Coleen Rowley make our nation safer. They inform authorities about such dangers as security vulnerabilities in our intelligence-gathering capabilities, at nuclear power plants and weapons facilities, in airports, and at our nation’s borders and ports. They are modern-day Paul Reveres who warn about threats to the public’s well-being before avoidable crimes or disasters occur. The 9/11 Commission itself recognized that “democracy’s best oversight mechanism” is “public disclosure.”4 Whistleblowers provide that oversight, and they risk their jobs to do so.

But the federal government has failed to protect them.

Instead of being rewarded for their patriotism, national and homeland security whistleblowers face harassment, job-loss, demotion, loss of their security clearance (which effectively ends their career) and other retaliation. Many of them are not even given the right to have their day in court to challenge harassment.

Their disclosures are even more important in light of the fact that national and homeland security agencies have an almost unlimited ability to hide behind the government’s dramatically expanding framework of secrecy rules. As Senator Charles Grassley (R-IA) testified:

“Since September 11th, government agencies have placed a greater emphasis on secrecy and restricted information for security reasons. This is understandably so in some cases. But, with these restrictions come a greater danger of stopping the legitimate disclosure of wrongdoing and mismanagement, especially about public safety and security. Bureaucracies have an instinct to cover up their misdeeds and mistakes, and that temptation is even greater when a potential security issue can be used as an excuse. Whistleblowers serve as a check against this instinct and temptation.”5

The broken whistleblower-protection system and increased secrecy have emboldened wrongdoers to retaliate against or silence those who expose their abuses of power. When U.S. Park Police Chief Theresa Chambers warned that September 11th-related cuts meant fewer cops on the beat, she was fired. When Transportation Security Administration Red Team members found guns still getting through airport checkpoints, they were silenced and demoted. Department of Energy employees were punished for disclosing security failures at nuclear weapons facilities. FBI whistleblowers who exposed the agency’s failure to conduct investigations into terrorists were demoted, fired or driven out of their jobs.

In July 2002, Congress, with the passage of the Sarbanes-Oxley Act, recognized the importance of whistleblowers to the nation’s economy and its investors by providing state-of-the-art protections for whistleblowers at publicly traded companies. In August 2004, when the Bush Administration announced its new procedures for corporate whistleblower protections, Secretary of Labor Elaine L. Chao stated: “Whistleblower protection is an important part of the Sarbanes-Oxley Act, which this Administration has promoted to ensure corporate responsibility, enhance public disclosure and improve the quality and transparency of financial reporting and auditing. The whistleblower protection provision of Sarbanes-Oxley will protect courageous workers who speak out against corporate abuse and fraud.” Today, corporate whistleblowers are much better protected from retaliation than their counterparts in the public sector, even though the consequences of corruption in government are equally, if not more, far-reaching.

Yet neither Congress nor the Executive Branch have seen fit to provide homeland security personnel with protections equal to those employees of Enron and MCI/Worldcom. The best that some whistleblowers can hope for is to seek refuge under the defunct Whistleblower Protection Act, a law that has been decimated by the courts. That Act covers employees of agencies including:

Department of Homeland Security (except airport baggage screeners), which protects the nation’s borders and coasts;
	Not Covered By Whistleblower Protection Act Airport Baggage Screeners Armed Forces (uniformed military) Central Intelligence Agency Defense Intelligence Agency Defense Mapping Agency Federal Bureau of Investigations General Accounting Office Government Contractors National Security Agency
Department of Energy and the Nuclear Regulatory Commission, which protect nuclear power plants and facilities against radiological sabotage;
Environmental Protection Agency, which protects the nation’s water supply;
Department of Agriculture, which protects the food supply;
Department of Defense (civilian, non-intelligence), which fights terrorism and protects national security.

In addition, it is not unusual for the employee who has reported misconduct to be exposed and to even become the target of an investigation conducted by an IG or other agency official. In some cases, management starts an investigation in order to discredit and harass employees who are deemed troublesome.

More importantly, such investigations fail to provide whistleblowers with a hearing by a truly independent court or administrative body that can hold agencies accountable for retaliation. Time and again, whistleblower attorneys and advocates have found that verifying a whistleblower’s allegations is not enough: Managers who retaliate against whistleblowers may continue to do so unless ordered to stop.

Broken: The Whistleblower Protection Act

The most significant statute aimed at protecting federal whistleblowers is the Whistleblower Protection Act (WPA). The WPA covers civil service employees, but does not apply to uniformed military, employees at intelligence agencies, the Federal Bureau of Investigation, government contractors, or airport baggage screeners.

Originally passed in 1989, the Whistleblower Protection Act is the most important free speech law for federal employees. Unlike many other whistleblower provisions, it allows employees to seek intervention by an outside independent agency, the Office of Special Counsel; access to an administrative legal proceeding to hear their case at the Merit Systems Protection Board; and, ultimately, access to the court to hear appeals to the case.

Despite the rights the Act provides on paper, it has suffered from a series of crippling judicial rulings that are inconsistent with Congressional intent and the clear language of the Act. These rulings have rendered the Act useless, producing a dismal record of failure for whistleblowers and making the law a black hole.

Congress has Repaired Whistleblower Protection Act Repeatedly 1978 Congress includes language in the Civil Service Reform Act protecting employees from retaliation for making disclosures of information regarding misconduct. 1989 After the courts and government agencies create loopholes that limit who is protected, Congress unanimously passes Whistleblower Protection Act (WPA). 1994 Because the courts and agencies continue to create exceptions for who is protected, Congress passes amendments to strengthen the WPA. The amendments are approved unanimously by Congress. 2004 A series of hostile judicial rulings since 1994 have once again crippled the Whistleblower Protection Act. Congress considers the Federal Employees Protection of Disclosures Act (S. 2628) and the Whistleblower Protection Enhancement Act (H.R. 3281).

According to the Government Accountability Project, only two out of 30 whistleblowers have prevailed on the merits in cases decided since 1999 at the Merit Systems Protection Board, the government agency which hears WPA claims. Even worse, at the Federal Circuit Court of Appeals, which has exclusive jurisdiction over WPA appeals of administrative rulings, only one whistleblower claimant out of 96 has prevailed on the merits in the past 10 years.

A number of rulings have made it virtually impossible for whistleblowers to defend themselves. In addition, serious questions have been raised about the effectiveness of the Office of Special Counsel and its ability to handle whistleblower cases in a proper and timely way.

Unreasonable Standards of Proof. The Federal Circuit Court has repeatedly disregarded congressional intent to extend protections broadly to whistleblowers and has issued a number of hostile rulings. For example, in 1999 in the case of Lachance v. White, the court decreed that the law only shields those charging government misconduct when that charge is supported by “irrefragable proof”7 (defined by the dictionary as “undeniable, uncontestable, incontrovertible or incapable of being overthrown”8). This standard never appears in the statute, reports by Congress on the language of the WPA, or any decision by the Merit Systems Protection Board involving whistleblower claims. Amendments to the statute approved by Congress in 1994 only require that the “employee reasonably believe his or her disclosure evidences” misconduct. Congress set this standard to provide protections to whistleblowers who might be “wrong” about their allegations, as well as those who were right.

Whistleblower Protection Act Loopholes - Employees are NOT Covered if They: Report wrongdoing in the chain of command. Tell co-workers or those suspected of wrongdoing. Challenge policies. Have job duties to find or point out wrongdoing. Are the not the first to raise the problem.

The unreasonable standard set by the court makes it virtually impossible for a whistleblower to prevail unless the wrongdoer confesses, in which case there is no need for a whistleblower. A recent Senate report commented that: “This imposes an impossible evidentiary burden on whistleblowers, and there is nothing in the law or legislative history that even suggests such a standard under the WPA.”9 According to the Government Accountability Project, in the three years prior to Lachance, whistleblowers had a 36% success rate for decisions on the merits at the Merit Systems Protection Board. Since Lachance, that success rate has plummeted to 7%.

Unreasonable Limitations on How Disclosures are Made. A myriad of additional loopholes defies logic. The Court has decreed that protections should be withheld from whistleblowers who make their disclosures to co-workers, supervisors or others in the chain of command, or the person suspected of wrongdoing. However, any reasonable person would expect an employee to approach their supervisor or higher-ups to resolve a problem before blowing the whistle to the media or to Congress.

Whistleblowers are also not protected when disclosures are made in the course of doing their job’s duties, as is the case for employees who conduct audits or investigations into wrongdoing such as Inspector General offices. Elaine Kaplan, the former head of the U.S. Office of Special Counsel, recently described this loophole in testimony before the Senate:

“Suppose that a security screener at National Airport who works for the Transportation Security Administration notices that the X-ray machines are malfunctioning on a regular basis. He suspects that, because of these malfunctions, a number of passengers may have been permitted to board airlines without being screened. It is part of his job to report such malfunctions to his supervisor. The screener goes to his supervisor and tells him about the malfunctioning machines. The supervisor tells the employee not to write up a report but to go back to work – he does not want to do the paperwork and does not want it to get out that the X-ray machines at National Airport don’t work properly. He tells him, don’t worry, we will get the problem fixed.

Extent Observers Believed Their Rights Would Help Them if Retaliated Against for Whistleblowing Source: U.S. Merit Systems Protections Board, Whistleblowing in the Federal Government: An Update, 1993.

One week later, the employee returns and the problem has not been fixed. This time, he tells his supervisor, if nothing is done, he will report the supervisor’s inaction up the chain of command, or perhaps to the IG [Inspector General]. The supervisor fires the employee.

Under current law, this employee has no recourse. Because he made his disclosure as part of his regular job duties, he is not protected by the anti-retaliation provisions of the Whistleblower Protection Act. In fact, as a security screener at TSA, this employee does not even have the normal adverse action protections any other employee would have.

This same scenario could play out in any number of contexts: an inspector at the Nuclear Regulatory Commission who suffers retaliation when he recommends that a nuclear power plant’s license be revoked for violating safety regulations, an auditor who is denied promotions because he found improprieties in a federal grant program, or an investigator in the Inspector General’s office who is geographically reassigned because he has reported misconduct by a high level agency official.”10

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