USA: Congress Attempts to Restore Teeth to Whistleblower Protections

Congress Attempts to Restore Teeth to Whistleblower Protections

<http://www.ombwatch.org/node/10015/>

On May 14, the House Committee on Oversight and Government Reform held a hearing on H.R. 1507, the Whistleblower Protection Enhancement Act of 2009. The bill is Congress' most recent attempt to reform whistleblower protections after failing to pass substantively similar bills in the previous two sessions and abandoning a bipartisan whistleblower amendment to the American Recovery and Reinvestment Act.

Rep. Edolphus Towns (D-NY), chairman of the committee, hailed the legislation as "a landmark step in restoring Congress' intent to protect employees from retaliation." The legislation closes several loopholes in the current protections for whistleblowers by expanding protections to include contractors and national security and intelligence employees, as well as improving the procedures for responding to charges of retaliation.

Rajesh De, Deputy Assistant Attorney General at the Office of Legal Policy within the Department of Justice offered testimony before the committee for the administration. De expressed support for many changes the legislation proposes. However, De raised concerns that the law "not inadvertently make it more difficult for civil servants in supervisory roles to discipline employees who themselves engage in such acts or whose job performance is otherwise inadequate." All indications are that this concern is unfounded. Other civil service legislation has neither clogged the courts nor restricted managers from firing employees for justifiable reasons.

A second concern from the administration pertains to national security. While agreeing that "whistleblowers in the national-security realm must have a safe and effective method of disclosing wrongdoing without fear of retaliation," the administration is concerned that the bill could result in the release of classified information. De suggested "an extra-agency avenue within the Executive Branch for federal employees who wish to make classified disclosures to Congress." Individuals would first seek approval for any disclosure to Congress from the Inspector General and head of their agency. If they decline to do so, employees could appeal to the extra-agency board "composed of senior presidentially-appointed officials from key agencies within and outside of the intelligence community." Such a mechanism would likely prevent agencies from wrongfully withholding information from Congress but could fail if the desire for secrecy derived from the White House and was supported by appointees.

Michael German of the ACLU refuted some of the administration's concerns in his testimony, stating, "By providing safe avenues for agency employees to report waste, fraud and abuse to the appropriate authorities and to Congress, there will be less of a need to anonymously leak information in order to have serious problems adequately addressed." German added that "FBI and other intelligence community employees have the training and experience required to responsibly handle classified information and the severe penalties for the unlawful disclosure of classified information will remain intact after this legislation passes." Congress must have sufficient capability to perform its constitutional duty of overseeing the executive branch and respond in the case of misuse of funds or other misdeeds.

Angela Canterbury of Public Citizen also testified about the urgent need for the reforms contained in the legislation. Canterbury presented a letter that 286 organizations, including OMB Watch, signed, calling on President Obama and Congress to take "Swift Action to Restore Strong, Comprehensive Whistleblower Rights." The Whistleblower Protection Enhancement Act of 2009 satisfies all of the recommendations from the letter save one: it does not neutralize the government's use of the state secrets privilege.

Currently, H.R. 1507 is being studied by both the House Committee on Oversight and Government Reform and the House Committee on Homeland Security. The Senate has a similar bill of its own, S. 372, which is comparable in substance, though it lacks the same protections for employees at national security and intelligence agencies.

( 05/19/09)