Stronger Whistleblower Protection Bill Passes Senate Committee

08/04/09 Robert Lorei
Radioactivity: Live Call-In (Tuesday) | Listen to this entire show:

Good afternoon, welcome to Radioactivity on WMNF. I'm Rob Lorei. Coming up we'll talk about stronger protection for government whistleblowers. But first some listener comments about last Thursday's discussion on health care reform.

According to the Associated Press,

Last week a Senate committee unanimously approved legislation to protect federal employees from being punished for blowing the whistle on waste and corruption.

The bill allows many government workers to take reprisal complaints to a federal court where a jury can hear the case. For employees at U.S. intelligence agencies who have access to the nation's deepest secrets, it creates a special board with members appointed by the president to examine retaliation claims.

Under the current system, whistle-blowers at most government agencies can challenge adverse administrative decisions outside their agencies. But not only are these appeal rights too narrow, whistle-blowers advocates say, intelligence agency employees aren't covered due to the sensitive nature of their jobs.

The White House, which was closely involved in the crafting of the Senate bill, called the vote by the Senate Homeland Security and Governmental Affairs Committee "a bipartisan breakthrough for whistle-blower rights."

Public interest groups hailed passage of the bill even as they push for broader changes.

Joining us right now to talk about the legislation is Tom Devine, legal director of the Washington DC based Government Accountability Project.

For more information, see http://www.whistleblower.org or contact tomd@whistleblower.org.WMNF Transcript (provided by GAP)

-Rob: What is a whistleblower? Is that someone who works just for the government, or can they work in private too? -Tom: At the Government Accountability Project (GAP) we define it as an employee who uses free speech rights to challenge abuses of power that betray the public trust. And although there’s legalistic definition, that pretty much captures the spirit of it. And yes, it can be government or corporate. At GAP, we don’t care which bureaucracy is selling out the public, whether it’s big business or big government.

Rob: Can you give us some examples of the whistleblowers whose names our listeners might remember? -Tom: Ernie Fitzgerald was a Pentagon employee who invented the synonym for whistleblowers—they “commit the truth.” As early as in the Johnson administration, he was threatened with termination because he wouldn’t go along with cover-ups. During the 80s in the Reagan administration, he exposed the world’s most expensive ___ A more recent example would be Dr. David Graham at FDA. His scientific dissent revealed the problems with the painkiller Vioxx that caused unnecessary heart attacks. A month after he disclosed this information, Merck pulled Vioxx from the market. Whistleblowers truly have the power to change history.

Rob: Another recent example is James Hanson, who worked at NASA. Remember us of his story. -Tom: He’s the nation’s top scientific voice on climate change, and his example reminds that no one is safe from retaliation. When he was trying to challenge the Bush Administration’s adamant denials that global warming didn’t exist, he was told he couldn’t speak with anyone without having prior review and clearance from a 23 year old political appointee. Dr. Hanson called the bureaucracy’s bluff and kept speaking out anyway and he worked with us. What’s unfortunate is that he effectively didn’t have legal rights that were worth the paper they were written on to defend him.

Rob: Well with the Senate Homeland Security and Governmental Affairs Committee’s recent move to protect federal employees from being retaliated against, I take it that in recent years it’s been harder to be a whistleblower? Tell us what’s going on. -Tom: In recent years, a landmark free speech law passed that passed unanimously, the Whistleblower Protection Act, has been absolutely gutted by hostile interpretations by the Bush Administration and by very hostile court interpretations. At this point, it’s degenerated into a trap; the free speech law is ironically the strongest reason to keep your mouth shut. It’s become a very efficient machinery to rubberstamp any retaliation a whistleblower challenges. You end up by exercising your rights spending thousands of dollars and years out of your life hammering the final nail in your professional coffin. The Merit Systems Protection Board (MSPB), the only place where a whistleblower can have a day in court under current law, ruled against whistleblowers in 44 out of 45 decisions on the merits during the Bush Administration. Since 1994, when Congress made the WPA stronger, the only appeals court where you can challenge an MSPB ruling has a 3-241 ruling. This law has been turned into a trap.

-Rob: What would the bill that’s making its way through Congress offer whistleblowers? -Tom: There are four cornerstones to it. The first is restoring all of the free speech rights on paper that have been erased by bureaucratic agency and this one court. The second is structural reform so that federal government whistleblowers have normal access to court. The third thing that it does is expands those who it covers, like baggage screeners. The fourth cornerstone is strengthening the rights of natural security employees, like those in the FBI, NSA, etc, who want to challenge abuses of power. Currently, this last cornerstone isn’t in the Senate bill, but it is in the House. Only whistleblowers can expose the truth about the many abuses of power of our government that are threatening America’s legitimacy around the world. To show you how bad it is, it took 6 months for Leo Panetta and President Obama to learn that the CIA had plans to assassinate foreign enemies.

-Rob: Has the House voted on the legistlation? -Tom: Well in the past they’ve approved legislation that is really best practices for whistleblowers. But the other two times the Senate didn’t follow suit. This time it looks like, thanks to the Obama administration, we’re going to pass this open government breakthrough this fall. We’ve got 320 private and public organizations and corporations who have joined the campaign and are pushing Congress to give best practice free speech rights to anyone paid by the taxpayers.

-Rob: If somebody blows the whistle on the government right now, do they go into the witness protection program, or if money is being wasted, can that whistleblower recoup some money? -Tom: There’s something called the False Claims Act, which is America’s most effective anti-corruption law. This is generally limited to private employees, however, not government employees. The WPA goals are much more modest—they just call for federal whistleblowers getting away with blowing the whistle and hold onto their jobs.

-Rob: Does anybody ever blow the whistle and then need to be protected? -Tom: That’s happened, but mainly in the private sector. I hope we never reach that stage in the government.

-Rob: You mentioned the Obama administration—what have they done or not done in terms of protecting or not protecting whistleblowers? -Tom: Obama has been as good as his word—he campaigned for whistleblowers (he was a lawyer for them before he became a politician) and he pledged best practice rights for everyone paid by the taxpayers. So far he’s been as good as his word for everyone except national security employees. We’re hoping to push him over the top so that the agency where there are the worst abuses of secrecy can have free speech rights. But how are people going to tell the truth when they can’t defend themselves? That’s a loophole that needs to be closed, and we’ll be pushing him on that. Last week, he made a real gesture of good faith in appointing two life-long advocates of free speech rights to chair the MSPB which adjudicates almost all of the whistleblower hearings. And this could in fact have an even bigger effect than new legislation would. It will be the best team we’ve had in the thirty year history of the MSPB. And Obama also deserves credit for the Senate vote last week—it probably wouldn’t have occurred if it weren’t for him. We’ve got a lot to thank him for, but the work isn’t done, and there’s no excuse for him to allow a loophole for national security employees to persist.

-Rob: What advice would you give employees of the federal government if they see some kind of fraud or wrongdoing, knowing that the law is not as strong as it has been? -Tom: Respect that this may be on eof the most significant crossroad decisions of your life—it will never be the same for you, for better or for worse. At GAP, we specialize in what we call “legal campaigns”—even the best law isn’t enough to fully protect you, so get in touch with groups like ours. I’ve worked with 6,000 whistleblowers since 1979. Don’t take the same mistakes as others have made in the past.

-Rob: What’s the best way to get in touch with you at the Government Accountability Project? -Tom: Our website is www.whistleblower.org, and there’s a link for people to give us a confidential summary of their story.

-Rob: We’ve got a couple questions, then we’ll let you go, Tom.

-Bonnie from St. Petersburg: Do you know what happened to Bunny Greenhouse, who exposed the corrupt Halliburton contracts? -Tom: Well, she doesn’t have any viable legal rights currently. She was a star witness at House of Representatives hearings in May of this year on the need to pass this legislation as soon as possible. She personifies why we need a whistleblower protection act. For those who aren’t familiar, Bunny Greenhouse was one of the chief auditors at the army, and she exposed the rampant corruption, double-billing, lack of competition that was allowing the Halliburton corporation to get illegally rich off of the Iraq War, at the taxpayers’ expense.

-Joe in West Central Florida: To what extent does an employee entering into non-binding arbitration or non-disclosure agreements limit their rights? -Tom: That’s a very penetrating question and it goes right to the heart of whether corporate whistleblower rights are real or illusory. A lot of the corporate whistleblower laws are vulnerable to the employer twisting your arm in advance and saying that as a prerequisite in your job, you have to waive all of your legal rights and agree to appear before an arbitrator who we pay; in these instances, free speech rights are a joke. This is a big problem in the 2002 Sarbanes-Oxley corporate whistleblower law; but the most recent laws we’ve passed since 2006 bar any legal validity to any employment agreements that would cancel out free speech rights, and this is becoming non-controversial language. We passed this same language in five laws last Congress, including the Consumer Product Safety Act and the Stimulus bill. Currently, we have provisions like that tucked into legislation for food safety, the healthcare reform legislation, the legislation to create a new consumer financial protection agency, and we’re trying to get it into the climate change bill, too.

Rob: For someone who works in private industry, it’s a question of whether I’m revealing trade secrets or exercising my free speech rights. -Tom: Violating the trade secrets act would negate an employee’s free speech rights. None of these provisions covers irresponsible dissent like that. That’s not whistleblowing, that’s corporate espionage.

-Caller (email): Can your guest address the Cybil Edmonds FBI whistleblower case; she recently reveals a working relationship with Osama Bin Laden up to the day until 9/11. -Tom: The reason that a full public record wasn’t made is b/c of another doctrine known as the “states’ secrets privilege” which allows the government to impose blanket secrecy, even for non-classified information. Obama campaigned against this privilege, but since he’s been in office, the White House has been defending it in every court case that tries to use that secrecy rule from denying employees an open day in court, and the Cybil Edmonds case is the classic example of that.

-Jesse from St. Petersburg: Florida has some good whistleblower protection laws—there’s one that implies specifically to government employees and another to private government contractors. If you’re an employee, whether of a government agency, contractor, or a private company, I would really urge you to consult a lawyer before you do anything. There are dozens if not hundreds of anti-retaliation laws; there are so many with different idiosyncrasies, and it’s easy to get lost in this maze. There’s a million ways that people can screw up their cases and have no recourse when they’re fired. I’m not aware of any public interest group in Florida that holds whistleblowers hands through the process.

-Rob: Tom, what are the next steps with this legislation? -Tom: The next step will be for us to be slugging it out during August on the rights of nat’l security whistleblowers and a House Committee vote in early September; then we’ll try to resolve any differences between the Senate and House bill and hopefully have something written into law by the end of the fall. I would also say amen to Jesse’s call. You need a lawyer to let you know if you’re proceeding at your own risk or if you have a chance to defend yourself. Also, our top lawyer here at GAP lives in Florida, so there’s really no geographic limit to the help we offer. If you’re a national security whistleblower, I’d recommend PEER (Public Employees for Environmental Responsibility). I’d also recommend National Whistleblowers Center, a spin-off from GAP. Their website is whistleblowers.org and they’re really the best in town for representing employees at the FBI or NSA or those types of agencies.

-So again, Tom, how can folks get in touch with you? -Tom: www.whistleblower.org. My email is tomd@whistleblower.org. We roll up our sleeves and try our best to work with you.

-Thanks, Tom -Tom: Thank you.

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Mr

I find it amazing that this story flies below the radar. This is outrageous and should be corrected NOW. What can we do to help?