Thursday, October 23rd, 2014

The Obameter

Increase protections for whistleblowers


"Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government."


Updates

Better protection for most, but not the intelligence community

As a candidate in 2008, Barack Obama promised to strengthen whistleblower laws for federal workers by speeding up the review process of claims, and granting whistleblowers full access to jury trials and due process.

In the lights of continuing revelations by whistleblower Edward Snowden about methods used by the NSA, we decided to once again take a closer look at Obama's campaign promise.

As of this writing, Obama has signed both a law and an executive order increasing whistleblower protection rights, and the overall conditions for federal employees have improved greatly.

One important exception, though, are whistleblowers in the intelligence community like Snowden, a former NSA contractor.

"For non-national security/ intelligence community whistleblowers it has dramatically improved," said Angela Canterbury, director of public policy at the Project on Government Oversight. "But for anyone making public disclosures about national security/ intelligence wrongdoing, it is worse."

Before Obama

Since the 1989 Whistleblower Protection Act, federal agencies have been prohibited from punishing employees because of whistleblowing. But a wide range of loopholes undermined the authority of the law. In many cases federal employees were fired, demoted, reassigned, or lost their security clearances after speaking up.

As we have pointed out before, if federal employees want to complain about unfair retaliation after blowing the whistle, traditional legal channels aren't available. They cannot file a lawsuit.

Instead, in most cases, they must appeal to the Office of Special Counsel, an independent federal agency that investigates federal government personnel cases. If the office finds there was unfair punishment by the employer, it tries to negotiate a resolution. If that doesn't work, the office represents employees before a quasi-judicial agency called the Merit Systems Protection Board, which is comprised of three presidential appointees. If they don't like the decision the board reaches, employees can try to appeal to the U.S. Circuit Court of Appeals, which has ruled in favor of whistleblowers in only three of 229 cases – not counting cases dismissed on technicalities – between October 1994 and May 2012.  

Changes through appointments

Five experts we interviewed said Obama has given federal employees better chances of appealing wrongful employer retaliation because of his appointments.

"The Office of Special Counsel now stands for whistleblower rights in a way that it didn't in the past," said Steven Aftergood, who directs the Project on Government Secrecy, a watchdog organization that promotes public oversight.

The last two years have been the most successful in OSC's history in achieving favorable actions for whistleblowers – like the rehiring of a fired employee or the reprimand of a supervisor.  For over a decade, OSC counted less than 100 successful favorable actions a year (including an all time low of only 29 in 2007), but in the fiscal year of 2012 they were able to reach 159 favorable actions, and this year it was 160.

For employees who appear before the Merit Systems Protection Board, the situation hasn't improved as much. "The percentage of cases decided in favor of employees has increased from less than 2 percent to about 3-4 percent," said David Pardo, an attorney who runs the website MSPB Watch.

Whistleblower Protection Enhancement Act of 2012

On Nov. 27, 2012, Obama signed the Whistleblower Protection Enhancement Act into law, after it had been passed on a bipartisan basis.

The law strengthened and expanded already existing protections for whistleblowers, and for the first time entitled whistleblowers to compensatory damages in cases of wrongful reprisal. Other key reforms include protections for federal scientists and Transportation Security Administration officers, as well as for federal employees who are not the first to disclose a case of misconduct.

To inform workers about their rights and protections, the law also requires agencies to create whistleblower ombudsmen at the Inspector General offices. Additionally, the law strengthens the power of the Office of Special Counsel by giving it the authority to take disciplinary actions against those who retaliate.

The law was lauded by whistleblower advocates. Tom Devine, legal director at the Government Accountability Project, specifically praised President Obama's "unprecedented leadership" in passing the law. "He was the first president in history not only to support government whistleblower rights in principle, but to engage the White House directly into making them as strong as possible," Devine said.

Regardless of all its new benefits, the law falls short in two major areas: It does not give whistleblowers access to jury trials, and its free speech protections don't extend to the intelligence community.

Presidential Policy Directive 19

To address at least one of these problems, President Obama issued Presidential Policy Directive 19 in October 2012. The executive order extended whistleblower protections to national security and intelligence employees. In many cases, it was the first time that workers with access to classified information could benefit from free speech protections – a "landmark paradigm shift" in U.S. politics, according to Devine.

The executive order is meant to encourage intelligence community whistleblowers to use internal channels, or go to Congress instead of leaking information to the media. Like the Whistleblower Protection Enhancement Act, it forbids retaliation against workers who report federal misconduct.

The executive order doesn't have the same authority as a law passed by Congress, and whistleblower advocates have said it only appears on its face to help. If a federal employee with a security clearance wants to complain about wrongful retaliation, he or she is only allowed to do so internally – within the same agency that proposed the reprisal.

Additionally, it's not clear whether the directive also protects the numerous government contractors (like Snowden), and the last paragraph of the executive order limits the legal rights to enforce the promised protections.

Obama's executive order for the first time ever established free speech protections for the intelligence community – as long as they report federal misconduct internally or to Congress. But all goodwill stops once you talk to the media.

In the five years of Obama's presidency, the administration launched what some call an "unprecedented crackdown on government leaks." Under Obama, eight whistleblowers have been prosecuted under the World War I-era Espionage Act, more than under all other presidents combined.

Our ruling

Obama promised to strengthen whistleblower laws by speeding up the review process of claims and granting full access to jury trials and due process. When we last checked his promise in 2012, we rated it a Compromise, saying that Obama has made a lot of progress (especially through his appointments), but that he was nowhere near the standards set by his own campaign rhetoric.

Since then, a lot has changed.

Obama enacted structural reforms by signing the Whistleblower Protection Enhancement Act and the Presidential Policy Directive 19 – which closed many loopholes in whistleblower protections for federal employees, and gave the intelligence community free speech rights for the first time ever.

All the experts we have talked to were more than eager to acknowledge that Obama has done more to protect whistleblowers than any other president before him. But national security whistleblowers represent a glaring exception. The Obama administration has prosecuted more whistleblowers under the Espionage Act than any president before.

Additionally, Obama didn't manage to get whistleblowers access to jury trials, which was part of his original promise.

We continue to rate his promise a Compromise.

Sources:

Remarks by the President in a Press Conference, Aug. 9, 2013

Testimony of Angela Canterbury, Director of Public Policy, Project On Government Oversight, before the House Committee on Oversight and Government Reform, March 13, 2013

U.S. Merit Systems Protection Board, "Questions and Answers about Whistleblower Appeals," accessed Nov. 8, 2013

Project On Government Oversight, "Advocates Laud President Obama's Signing of Federal Whistleblower Reforms," Nov. 27, 2012

Project On Government Oversight, "Activist Court Decision Strips Civil Service Rights and Whistleblower Protections From National Security Positions," Aug. 21, 2013

Project On Government Oversight, "POGO and Partners Submit Recommendations to DNI on Intelligence and National Security Whistleblower Protections, July 24, 2013

Government Accountability Project, "President signs Whistleblower Protection Enhancement Act (WPEA)," Nov. 27, 2012

Organizing for Action, The Truth Team,  "Fact check: President Obama has aggressively pursued and addressed national security leaks,"  Aug. 16, 2012

National Whistleblower Center, "National Security Whistleblowers Not Effectively Protected by New White House Directive," Oct. 11, 2012

Bloomberg, "Obama Pursuing Leakers Sends Warning to Whistle-Blowers," Oct. 17, 2012

Washington Post, "After the whistle: Revealers of government secrets share how their lives have changed," July 28, 2013

Email Interview with Steven Aftergood, director of the Project on Government Secrecy at the Federation for American Scientists, Oct. 25, 2013

Interview with Tom Devine, legal director of the Government Accountability Project, Oct. 31, 2013

Email interview with Angela Canterbury, director of public policy at the Project on Government Oversight, Nov. 6, 2013

Email interview with Ann O'Hanlon, communications director of the Office of Special Counsel, Nov. 6-7, 2013

Email interview with David Pardo, MSPB Watch, Nov. 9 and 14, 2013

Appointees better at protecting, but no new law

As an attorney and U.S. Senator, Barack Obama had a record of pushing for stronger whistleblower protections. So it wasn't a surprise in 2008 when then-candidate Obama said he would strengthen whistleblower laws for federal workers. Specifically he would speed up the review process of whistleblower claims and grant whistleblowers full access to court and due process.

As of this writing, Obama has improved conditions for federal whistleblowers, but he hasn't succeeded in getting larger, structural reforms passed through Congress.

Limited access to court
To understand what Obama said he would fix, it's worth reviewing what he diagnosed as the problem. As of this writing, if you are a federal employee and you complain about waste, fraud or abuse in your department or agency, and then get fired, demoted, reassigned, or lose your security clearance, traditional legal channels aren't available to you. You cannot file a lawsuit.

Instead, in most cases, you must appeal to the Office of Special Counsel, an independent federal agency that investigates and prosecutes federal government personnel cases. If the office finds there was unfair punishment by the employer, it tries to negotiate a resolution with the accused agency. If that doesn't work, the office represents you before a quasi-judicial agency called the Merit Systems Protection Board, which is comprised of three presidential appointees. If you don't like the decision the board reaches, you can try to appeal to the U.S. Circuit Court of Appeals, which has ruled in favor of whistleblowers in three of 229 cases -- not counting cases dismissed on technicalities -- since October 1994.

Prior to the Obama administration, the board, the counsel, and appeals court were all openly hostile to whistleblowers, according to five experts we interviewed. Obama's promise for full access to court referred to jury trials, which reformers argue would give employees a better chance of winning a case.

Welcome appointments for whistleblowers
Every whistleblower advocate we interviewed said Obama has given federal employees better chance of appealing wrongful employer retaliation because of his appointments. The name that came up most frequently in interviews was Carolyn Lerner, an employment and civil rights lawyer who heads the Office of Special Counsel.

Steven Aftergood, who directs the Project on Government Secrecy at the Federation for American Scientists, said the Office of Special Counsel had been "useless or worse” in the past, "but today it plays an active role in the executive branch in defending (whistleblower) rights.”

Angela Canterbury, director of public policy at the Project on Government Oversight, applauded Obama's appointment of Susan Grundmann, chairwoman of the Merit System Protection Board.  It used to be a hostile place for whistleblowers, "but we feel that turned around under Obama,” Canterbury said.

Structural reforms stalled
The clearest way to measure Obama's progress on these protections would be a single question: Did he sign a whistleblower bill into law?

"He hasn't had a chance to sign anything,” said Tom Devine, legal director at the Government Accountability Project. "Obama did everything humanly possible to get that law enacted.”

In 2010, the House and Senate passed similar bills for new whistleblower protections, but Senate Republicans placed a hold on the House version at the last moment. Obama did support the legislation, assigning his White House ethics advisor, Norm Eisen, to help craft the bill.

Since there is no new law, federal employees who "whistleblow" still do not have access to court. Only Congress can grant that power. There is current legislation passed by the Senate, and being considered in the House, which Devine said could become law this year.

Obama was active in signing laws that protect private employees who blow the whistle on corporations in the financial and food safety sectors, Devine said.

"With respect to protecting employees against employment retaliations, President Obama has been the gold standard among presidential administrations,” Devine said. "He's lapped every other president in history on employment rights.”

Worse conditions for whistleblowers in national security and intelligence
There is one black eye on Obama's whistleblower record, the stalled bill notwithstanding: national security and intelligence whistleblowers.

"I give the Obama administration an F,” Radack said, who criticized the administration for "moving backwards” on prosecutions of whistleblowers in the national security and intelligence fields. Those workers don't have any whistleblower protections and, when they have leaked information, the Justice Department under Obama has prosecuted more people under the Espionage Act -- six so far -- than any previous president and all previous presidents combined, Radack said.

If Congress passes the Whistleblower Protection Enhancement Act before the end of 2012, we'll have to reevaluate this promise. For now, Obama has made progress, but nowhere near the standards set by his own campaign rhetoric. We rate this a Compromise.

Sources:

Interview with Angela Canterbury, director of public policy at the Project on Government Oversight, June 27, 2012

Interview with Steven Kohn, executive director at the National Whistleblower Center, June 27, 2012

Interview with Tom Devine, legal director at the Government Accountability Project, June 27 and June 29, 2012

Interview with Jesselyn Radack, national security and human rights director at the Government Accountability Project, June 29, 2012

Email interview with Steven Aftergood, director of the Project on Government Secrecy at the Federation for American Scientists, June 26, 2012

The Washington Post, Under Carolyn Lerner, special counsel office is doing its job now, observers say, June 28, 2012

The Washington Post, Special Counsel Carolyn Lerner quickly raises the profile of her office, Dec. 25, 2011

Government Accountability Project, Obama indicts sixth whistleblower under the Espionage Act, April 5, 2012

Supreme Court of the United States, Cook County v. United States Ex Rel. Chandler, March 10, 2003

On the Media, Whistleblower update, Jan. 7, 2011

GovTrack.us, S. 743: Whistleblower Protection Enhancement Act of 2012

Whitehouse.gov, Letter to President Barack Obama on whistleblower protections, April 2009

Project on Government Oversight, Monitoring government employee email could lead to repercussions for whistleblowers, June 26, 2012

Obama administration expresses support for whistleblowers, with a few caveats

Congress is considering legislation to protect whistleblowers, those federal workers who expose misconduct or other governmental shenanigans. The Obama administration has expressed support for the legislation, with a few caveats.

The bill, H.R. 1507, seeks to help whistleblowers in several ways. It expands what workers can safely disclose and forbids additional forms of reprisal. It extends protections to contractors, employees of the Transportation Security Administration and individuals who disclose censorship related to federal research or technical information. It also extends whistleblower protection to employees of national security agencies and prohibits reprisals such as revoking security clearances.

It's that last item that concerns the Obama administration. Speaking for the Justice Department, Deputy Assistant Attorney General Rajesh De said national security whistleblowers should be treated differently.

"The current bill would grant federal employees the unilateral right to reveal national security information whenever they reasonably believe the information provides evidence of wrongdoing, even when such information is legitimately classified or would be subject to a valid claim of executive privilege," De said in prepared testimony. "We believe that this structure would unconstitutionally restrict the ability of the president to protect from disclosure information that would harm national security."

De suggested a special board (De calls it an "extra-agency mechanism") within the executive branch of government to handle whistleblower cases involving national security.

Steve Kohn, president of the National Whistleblowers Center and a litigator of whistleblower cases, opposes the idea of such a board. National security workers need protections that other federal workers have that would ultimately give them access to federal courts, he said.

Kohn said that during the campaign, Obama said he supported legislation to do that, but that now the national security bureaucracy is opposing the new legislation.

"I am disheartened that Obama hasn't pushed the agencies that report to him and demand that they be fully supportive of his positions," Kohn said.

On one hand, Obama pledged to support more protections so federal workers will feel free to call attention to problems. But the administration has emphasized it does not want those protections to lead to the release of sensitive information. Likewise, Obama balked at language that Congress included in an appropriations bill that said Congress could revoke the salary of anyone who tried to prevent a fellow federal worker from communicating with Congress. Obama's signing statement said the executive branch's department heads could "supervise, control or correct" communications with Congress.

There's still plenty to be debated on this issue and we'll be watching to see what happens with the bill. Meanwhile, we rate this promise In the Works.

Sources:

U.S. House of Representatives Committee on Oversight and Government Reform, Hearing Testimony and Witness List for Hearing on: "Protecting the Public from Waste, Fraud and Abuse: H.R. 1507, the Whistleblower Protection Enhancement Act of 2009 , May 14, 2009

Thomas, HR 1507 , accessed June 9, 2009

Interview with Stephen Kohn of the National Whistleblowers Center

Federal Computer Week, Obama backs whistle-blowers but not in intell , May 14, 2009

The Washington Post, Whistleblower Advocates Push for More From Obama , May 15, 2009