WHISTLEBLOWERS CHARGE RETALIATION, SEEK ADDITIONAL PROTECTIONS

By William Fisher

Career Federal employees who report waste, fraud, abuse, and mismanagement in government agencies are routinely subjected to career-ending retaliation, humiliation, and legal costs – despite laws that are supposed to protect them, and repeated assurances from the White House, many government agencies, and congress that they maintain a policy of zero tolerance for retaliation.

These are some of the conclusions of public interest organizations that monitor the Federal bureaucracy. They say the incidence of retaliation has increased exponentially during the administration of President George W. Bush, and are calling on Congress to strengthen legal protections for whistleblowers.

As more than 40 public interest groups marked “Washington Whistleblowers Week” -- a week-long gathering of whistleblowers from throughout the country in Washington, D.C., to share their stories with Congress and the public – Joan Claybrook, president of advocacy group Public Citizen, said, “Whistleblowers are crucial to the health of democracy and need stronger protections from Congress against retaliation.”

Some of the victims of retaliation for whistleblowing are well known. Perhaps the most highly publicized is Sibel Edmonds. Ms. Edmonds 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. The Department of Justice Inspector General agreed with Edmunds’ charges.

But in October 2002, at the request of FBI Director Robert Mueller, then Attorney General John Ashcroft imposed a gag order on Edmonds, citing possible damage to diplomatic relations or national security. Edmonds sued the FBI, but the government invoked the so-called “state secrets privilege” – a previously rarely used legal maneuver that has been used numerous times during the Bush Administration. Edmunds 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”. Edmunds organized an advocacy group, The National Security Whistleblowers Coalition, to lobby for greater protections for employees in agencies dealing with national security (www.nswbc.org/).

Other whistleblowers who have paid a high price for coming forward are less well known.

For example:

Bunnatine H. "Bunny" Greenhouse, the senior contracting officer for the Army Corps of Engineers, who 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 Green says the performance review "was conducted by the very subjects" of her allegations. Greenhouse went public with her concerns over the volume of Iraq-related work given to Halliburton by the Army Corps of Engineers without competition. Previously, her complaints within the agency having been ignored, she started giving interviews to national publications, and testified before a Democrat-sponsored Capitol Hill event on contracting in Iraq.

Army 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 disclose the Pentagon's “Able Danger” data-mining program. 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.
During the Bush Administration, the suppression or manipulation of science for political or ideological reasons has become a frequent whistleblower complaint.

For example, earlier this month the Union of Concerned Scientists (UCS) (www.ucsusa.org/) told Congress that politics was trumping science at the US Fish and Wildlife Service (FWS), part of the Interior Department (DI). Their allegation came on the heels of a scathing report from the DI’s Interior Inspector General that chastised former Deputy Assistant Secretary Julie MacDonald for distorting FWS scientific documents to prevent the protection of several highly imperiled species. MacDonald resigned her post last week.

Francesca Grifo, director of the UCS Scientific Integrity Program, is quick to point out that MacDonald's case is just one of many. The misuse of science at Interior has been reported on issues as diverse as mountaintop removal, cattle grazing, and the protection of trumpeter swans.

She called on Interior Secretary Dirk Kempthorne to “send a clear message to all Interior political appointees that substituting opinions for fact is unacceptable."

Grifo testified that political interference in science “has become epidemic—not only at FWS, but at agencies throughout the federal government.”

While there have been a number of whistleblower complaints from career government scientists, many have been intimidated into silence, and others have quietly left the public sector.

Agencies that deal with the climate change issue have been under extraordinary scrutiny by public interest groups who charge that the findings of government scientists have been routinely suppressed or distorted by Bush Administration political appointees.

The Government Accountability Project (GAP), (www.whistleblower.org/) a public interest group, recently issued a report – “Redacting the Science of Climate Change” -- on the findings of a year-long investigation into political interference at federal climate science agencies.

GAP says the report “demonstrates how policies and practices have increasingly restricted the flow of scientific information emerging from publicly-funded climate change research. This has negatively affected the media’s ability to report objectively on scientific issues, public officials’ capacity to respond with appropriate policies, and full public understanding of environmental concerns."

Science relating to public health issues has also been under severe scrutiny. Emblematic of this problem was the resignation of Dr. Susan Wood, who quit her post as assistant commissioner of women's health at the Food and Drug Administration in protest against the FDA’s long delay in approving the so-called Plan B emergency contraception medication for over-the-counter sale despite the recommendations of agency scientists and outside review panels. Dr. Wood chose to resign after repeated unsuccessful attempts to make her objections heard within the FDA.

Dr. Wood charges that federal health agencies “seem increasingly unable to operate independently and that this lack of independence compromises their mission of promoting public health and welfare.” She added, “Whether it is the environment, energy policy, science education or public health, the American public expects our government to make the best decisions based on the best available evidence.”

“Having spent 15 years working for the federal government, nearly five of which
were at the FDA, I care deeply about what's happening in the federal agencies,
particularly our health agencies. Nearly 25 cents of every consumer dollar is
spent on products regulated by the Food and Drug Administration. We count on the FDA for the safety and effectiveness of our medicines, vaccines and medical
devices, and for the safety of the blood and food supply. The American public
does not want to -- nor should it -- have to think twice about the quality and
reliability of information it is getting from the FDA. Its reputation as the
international gold standard for regulatory agencies, and as a body that sets the
bar very high when it comes to scientific evidence and integrity, is being put
at risk over adult access to contraception. Why would the administration risk
such a reputation over this?”

Many federal employees say they have often found the protections theoretically afforded to them within the Executive Branch of government to be inadequate. These protections are intended to include statements to their immediate supervisors, the Inspectors General that reside within virtually all government departments, and the Office of Special Counsel (OSC), an independent agency dedicated to ensuring that whistleblowers do not suffer retaliation.

But the OSC, led by Bush political appointee Scott Bloch, has itself come under heavy fire from public interest groups, not only for failing to protect whistleblowers from a variety of Federal agencies, but practicing retaliation against its own employees. Since 2005, Bloch has been under investigation by the Inspector General of the White House Office of Personnel Management (OPM), at the behest of the President’s Office of Management and Budget. OPM’s investigation centers on charges that Bloch retaliated against whistleblowers who complained they were being transferred out of Washington for political reasons because they disagreed with Bloch’s policies. That investigation is reportedly reaching its final stages.

The Administration’s investigation of Bloch comes as a result of a complaint filed by his own staff members and whistleblower groups alleging a host of misconduct charges against Bloch.

Bloch insists that the ‘forced removals’ were part of a reorganization that sent 12 career OSC employees to new assignments in other cities “to improve performance, not punish any employees.”

The OPM Inspector General’s investigation is the third probe into Bloch’s operation after less than two years in office. The Government Accountability Office (GAO) and a US Senate subcommittee both have ongoing investigations into mass dismissal of hundreds of whistleblower cases, crony hires, and Bloch’s targeting of gay employees for removal while refusing to investigate cases involving discrimination on the basis of sexual orientation.

The allegation was made by in 2005 by Public Employees for Environmental Responsibility (PEER), (www.peer.org/), which said figures released by Bloch reveal that in the previous year OSC dismissed or otherwise disposed of 600 whistleblower disclosures where civil servants have reported waste, fraud, threats to public safety and violations of law, and “made 470 claims of retaliation disappear”.

PEER’S Jeff Ruch says, “The 600 disclosure cases that Bloch has admitted were dismissed are all instances where civil servants came forward to report waste, fraud and abuse, yet OSC decided that there was no need to investigate.”

He added, “Dismissing all 600 cases and deciding that not one deserved investigation (because, in the words of the OSC spokesperson they were all ("minor matters or issues previously investigated") stretches credulity.”

“Bloch has yet to announce a single case where he has ordered an investigation into the employee’s charges”, PEER charges. The organization says, “in not one of these cases did Bloch’s office affirmatively represent a whistleblower to obtain relief before the civil service court system”, called the Merit Systems Protection Board.

PEER says, “In order to speed dismissals, Bloch instituted a rule forbidding his staff from contacting a whistleblower if their disclosure was deemed incomplete or ambiguous. Instead, OSC would simply dismiss the matter. As a result, hundreds of whistleblowers never had a chance to justify why their cases had merit.”

Whistleblowers are supposed to be protected by the 1989 Whistleblower Protection Act (WPA). But a series of court rulings since 1994 has weakened the safeguards Congress intended in making it extremely difficult for whistleblowers to protect themselves when they speak out to protect the public.

Public Citizen’s Claybrook is calling for support of bills currently in Congress that would remedy the situation by strengthening whistleblower protections. On March 14, the US House of Representatives passed, 331 to 94, essential reforms to the WPA, H.R. 985, the "Whistleblower Protection Enhancement Act." The bill extends protections to federal employees who work in national security, including those at the FBI and intelligence agencies, as well as to federally-funded contractors. It also protects all federal employees who disclose wrongdoing in the performance of official duties.

The bill provides federal employees and contractors with a right to jury trials in federal court to challenge reprisals. A similar bill is under consideration in the Senate, S. 274, the "Federal Employee Protection of Disclosures Act."

If the House bill were to become law, it would negate a 2006 US Supreme Court ruling that limited the rights of employee-whistleblowers. In 2006, Public Citizen argued Garcetti v. Ceballos in the Supreme Court on behalf of a Los Angeles County prosecutor, Richard Ceballos, who was retaliated against after telling his supervisors of his belief that police falsified an affidavit to obtain a search warrant. The Court ruled that the disclosure was made in the course of his official job duties, holding that he was entitled to no protection, not even his First Amendment right to freedom of speech.

"Conscientious civil servants deserve strong statutory protections - not bureaucratic intimidation," said Claybrook. "Federal employees should not have to sacrifice their careers and livelihoods to do the right thing by disclosing information to protect public health, reduce fiscal abuse or secure the nation."

Whistleblowers have a number of champions in Congress. In the Senate, the most outspoken is Republican Chuck Grassley of Iowa, now ranking member of the Finance Committee. Grassley has advocated on behalf of individual whistleblowers for more than 20 years and co-authored laws to empower and protect whistleblowers, including the Whistleblower Protection Act of 1989, the 1986 whistleblower amendments to the False Claims Act, and the 2002 whistleblower amendment to the Sarbanes-Oxley corporate reform legislation. Along with Republican Senator Norm Coleman of Minnesota, he has also called for the extension of whistleblower protections to staff at the World Bank, after receiving accounts of retaliation against whistleblowers.

In the House, arguably the most vocal champion of whistleblowers is Rep. Henry Waxman, Democrat of California, who is the author of the recently-passed Whistleblower Protection Enhancement Act.

Says Waxman, “A key component of accountability is whistleblower protection. Federal employees are on the inside. They see when taxpayer dollars are wasted. They are often the first to see the signals of corrupt or incompetent management. Yet without adequate protections, they cannot step forward to blow the whistle.”

Waxman adds, “There are many federal government workers who deserve whistleblower protection, but perhaps none more than national security officials. 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. Yet these officials receive no protection when come forward to identify abuses that are undermining our national security.”