Increase protections for whistleblowers

Appointees better at protecting, but no new law

Updated: Monday, July 9th, 2012 | By J.B. Wogan

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

Updated: Tuesday, June 9th, 2009 | By Angie Drobnic Holan

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