HOUSE EXPANDS WHISTLEBLOWER PROTECTIONS

By William Fisher

For the past six years, Rep. Henry Waxman has looked like a man desperately in need of anti-depressant medication.

As the ranking minority member of the House Oversight and Government Reform Committee, the California Democrat was thwarted by his Republican colleagues in virtually every effort to exercise Congressional oversight into Bush Administration secrecy, waste, fraud, and abuse.

But this week the balding, diminutive bulldog of the House looked like a new grandpa eager to hand out cigars.

Mr. Waxman’s magical transformation turned on four words: November (when his party won control of both houses of congress); chairman (to which he was elevated by the election results); subpoena (the legal power to summon reluctant witnesses to testify at hearings, an authority reserved to the majority); and control (the power of the majority party to determine which issues get voted on the floor of the House and which ones die).

On that floor this week, Waxman led a successful charge for passage of no less than five bills designed to pull back the curtain of secrecy that has been a hallmark of the Bush Administration. Most of these bills had been languishing for years. All passed the House with varying degrees of Republican support.

The legislation included: The Whistleblower Protection Enhancement Act, which extends whistleblower protections to federal workers and contractors who specialize in national security issues; the Presidential Library Donation Reform Act, which requires that all organizations established for the purpose of raising funds for presidential libraries or their related facilities report on a quarterly basis all contributions of $200 or more; the Freedom of Information Act Amendments, which contains a dozen substantive provisions designed to increase public access to government information by strengthening the Freedom of Information Act (FOIA); and the Accountability in Contracting Act, which limits the length of noncompetitive contracts, minimizes no-bid and cost-plus contracts, requires public disclosure of justifications for no-bid contracts and disclosure of contractor overcharges, and provides additional funding for contract oversight.


Arguably, the Whistleblower Protection measure has been the most contentious. While there has been protection for whistleblowers who are federal employees, this has not covered those who work in agencies that deal with national security issues.

Both the House and Senate have held numerous hearings featuring testimony chronicling the travails of these whistleblowers – ranging from revocation of their security clearances to dismissal. But neither body has enacted legislation on the subject.

The five Waxman bills now go on to the Senate. Legislation similar to some of the five have been introduced in previous congresses, but never debated or passed. Congressional observers give this new legislation more than a fighting chance of passage.

However, President Bush has already signaled that he will veto the whistleblowers’ legislation. A memo to the committee from the Office of Management and Budget says, “It could compromise national security, is unconstitutional, and is overly burdensome and unnecessary.”

The bill, OMB says, “would expand, for the first time, whistleblower protections to employees at national security agencies who disclose classified information to Congress. H.R. 985 would permit an employee to make an individualized determination – without further review and perhaps without all relevant information – to disclose classified information. Such an independent, uncoordinated decision to disclose classified information could jeopardize not only national security programs, but also the security of the people involved in such programs.”

OMB adds, “Rather than promote and protect genuine disclosures of matters of real public concern, it would likely increase the number of frivolous complaints and waste resources. If (the bill) were presented to the President, his senior advisors would recommend that he veto the bill.”

Waxman’s committee takes a decidedly different view. “These are federal government employees who have undergone extensive background investigations, obtained security clearances, and handled classified information on a routine basis. Our own government has concluded that they can be trusted to work on the most sensitive law enforcement and intelligence projects. This bill would finally give these courageous individuals the protection they deserve, ”the panel says.

The proposed legislation would also ensure that employees who work for companies with government contracts are protected when they report waste, fraud, and abuse of U.S. taxpayer dollars. Existing legal protections for these employees are deficient, and often they fear that reporting an abuse of taxpayer dollars will cost them their jobs.

Another provision includes a clarification regarding disclosure of actions that threaten the integrity of federal science. Over the last few years, the politicization of science has been rampant. It is important that employees who see such examples know that they are eligible for whistleblower protection, and that our science-based agencies get the clear message that retaliating against these employees is unacceptable.

The bill responds to court decisions by the U.S. Court of Appeals for the Federal Circuit limiting the scope of disclosures protected under current law. It clarifies that “any” disclosure regarding waste, fraud, or abuse means “without restriction as to time, place, form, motive, context, or prior disclosure” and includes formal or informal communication. The bill also provides that a whistleblower can rebut the presumption that a federal official performed his or her duties in accordance with the law by providing substantial evidence to the contrary. The Federal Circuit has required a higher standard, irrefutable proof, to rebut this presumption. Furthermore, the bill allows whistleblowers access to federal district courts if the Merit Systems Protection Board (MSPB) does not take action on their claims within 180 days.

Testimony previously presented to Congress highlights the dilemma facing national security whistleblowers. It is a litany of retaliations taken against people who have spoken out about abuse of Iraqi prisoners at Abu Ghraib, illicit federal wiretapping, and other alleged misconduct.

Perhaps the most high-profile example is Sibel Edmonds. She began working for the FBI shortly after the Sept. 11 attacks, translating top-secret documents pertaining to suspected terrorists. She was fired in the spring of 2002 after reporting concerns about sabotage, intimidation, corruption, and incompetence to superiors. In October 2002, at the request of FBI Director Robert Mueller, then Attorney General John Ashcroft imposed a gag order on Ms. Edmonds, citing possible damage to diplomatic relations or national security. Ms. Edmonds sued and appealed her case all the way to the Supreme Court. But the high court agreed with lower courts that trying her case would compromise “state secrets.”

Ms. Edmonds is the founder of the National Security Whistleblowers Coalition (NSWBC). She told us, “National Security employees’ should not have to sacrifice their careers or financial security in doing what is right. Good employees are being chased out of jobs and fired by those who either are engaged in wrongful behavior or don’t want to hear about.”

She added, “A national security employee has to choose between career and conscience when confronted with agency wrongdoing. We need to adopt protections for employees that allow them to be secure in their jobs and encourage them to report waste, fraud, and abuse of power.”

The stories congress has heard from others are equally troublesome. For example:

Specialist Samuel Provance said he was demoted and humiliated after telling a general investigating the Abu Ghraib scandal that senior officers had covered up detainee abuses at Abu Ghraib. He said he tried to tell the general “things he didn’t want to hear,” adding, "Young soldiers were scapegoated while superiors misrepresented what had happened and tried to misdirect attention away from what was really going on." Provance lost his security clearance, was placed under a “gag order,” and is now stationed in Germany, where his responsibilities consist of "picking up trash and guard duty.”

Lt. Col. Anthony Shaffer was among the first to allege that the Pentagon ran a data-mining program known as “Able Danger.” He said he believes that the program identified Mohammed Atta before he became the lead hijacker in the 2001 terrorist attacks, though a Pentagon review found no evidence to support that conclusion. Shaffer’s security clearance was revoked.

Russell Tice, a former intelligence officer at the National Security Agency (NSA), charged that there were "illegalities and unconstitutional activity" in the agency’s so-called ‘special-access programs’ but was advised that he could not discuss them even with members of the Senate and House Intelligence Committees in closed session. He told the Committee the Defense Department’s harassment of him included spreading rumors that he suffers from bipolar disease.

Mike German resigned as an FBI agent after reporting that other agents and managers mishandled a major counterterrorism case in 2002 and falsified records. The Justice Department inspector general confirmed German's allegations, and that he was retaliated against – his security clearance was revoked.

Richard Levernier's job as a senior Department of Energy nuclear security specialist was to test how well prepared America's nuclear weapons sites were to defend against a terrorist attack. He testified that the tests he supervised showed a 50 percent failure rate. When he reported this to his superiors, he was demoted and his security clearance revoked. He says he was forced into early retirement.

Bunnatine H. "Bunny" Greenhouse, the senior contracting officer for the Army Corps of Engineers, objected -- first, internally, then publicly -- to a multi-billion dollar, no-bid contract with the Halliburton Company for work in Iraq. She was removed from the senior executive service, the top rank of civilian government employees, because of “poor performance reviews.” But Greenhouse's attorney, Michael D. Kohn, says the performance reviews "were conducted by the very subjects" of Greenhouse's allegations…” Greenhouse went public with her concerns over the volume of Iraq-related work given to Halliburton by the Corps without competition, but her complaints within the agency were ignored. She started gave interviews to national publications and testified before a Democrat-sponsored Capitol Hill event on contracting in Iraq.

"I can unequivocally state that the abuse related to contracts awarded to (Halliburton subsidiary) KBR represents the most blatant and improper abuse I have witnessed" in 20 years working on government contracts, Greenhouse said.

All these witnesses said they tried to follow the chain of command for reporting wrongdoing, but were rebuffed or stonewalled. Some started by going to their immediate supervisors; others went to the Inspectors General of their agencies; a few eventually told their stories to congresspersons or to the media.

The timing of the House vote on the Waxman legislation could not have been more appropriate. It came during Sunshine Week, a national initiative to open a dialogue about the importance of open government and freedom of information. Participants include print, broadcast and online news media, civic groups, libraries, non-profits, schools and others interested in the public's right to know.

Whether the Bush Administration supports that right remains to be seen.