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Government Accountability Project

JULY 28, 2006
7:00 AM

CONTACT: Government Accountability Project
Tom Devine, Legal Director, 202.408.0034
Adam Miles, Legislative Representative, 202.408.0034

Broad Coalition Urges Final Congressional Action to Restore Whistleblower Rights
Congress Acts After Supreme Court Ruling Canceling Constitution For “Duty Speech”

WASHINGTON - July 28 - A broad coalition of 35 citizen organizations yesterday urged House members to approve a whistleblower bill passed last month by the Senate in response to a Supreme Court decision. The decision is from the case Garcetti v. Ceballos, which canceled First Amendment rights for government workers when carrying out their job duties. A letter from the Make It Safe Coalition, addressed to House Armed Services Committee Chairman Duncan Hunter (R.-CA) and Ranking Member Ike Skelton (D.-MO), praised the Senate for restoring rights contained in “three prior, unanimous congressional mandates that have been frustrated by hostile judicial activism.” The group explained that whistleblowers consistently have sacrificed their careers, because “they did not have the legal right to defend themselves when they tried to defend the public.”

The Make It Safe Coalition consists of nonpartisan, nonprofit organizations spanning the ideological and subject matter spectrum, including civil liberties, civil rights, corporate watchdog, environmental, family values, government watchdog, judicial watchdog, labor, library, scientific freedom, taxpayer watchdog, and all major whistleblower support organizations. The group was formed to “protect those in government who honor their duty to serve and warn the public” about dangers from bureaucratic breakdowns involving defense, environment, hazards from food and medicine, homeland security, law enforcement, natural disasters, and out-of-control corruption in government contracting and procurement.

In June the Supreme Court canceled constitutional rights for government workers on the job, explaining that analogous protections already existed through whistleblower laws. That premise was mistaken. While Congress has passed laws three times protecting “duty speech,” each time the Federal Circuit Court of Appeals, a special body with monopoly power over civil service law, has erased those protections.

Whistleblower advocates have charged that the court’s activism turned the Whistleblower Protection Act of 1989, the strongest free speech law in history on paper, into a trap that sustains secrecy by rubberstamping retaliation against those who challenge government fraud, waste and abuse. Through 2005 it had ruled against whistleblowers in 119 out of 120 decisions since Congress unanimously strengthened the law in 1994. In addition to canceling protection for duty speech, the circuit court ended protection for any communications about problems that have been raised previously. To qualify for protection, it rewrote the congressional test requiring that a whistleblower demonstrate a “reasonable belief,” into “irrefragable proof” (defined as “undeniable, uncontestable, incontrovertible, and incapable of being overthrown).

Within weeks of the Supreme Court ruling, without objection the Senate attached unanimously–approved Senate Homeland Security and Governmental Affairs Committee legislation to S. 2766, the fiscal year 2007 Defense Authorization Act. Now the bill heads to a congressional House-Senate conference committee to resolve difference with the House, which had not considered whistleblower issues when it passed its version of the defense authorization.

The Senate action would restore the law’s original boundaries and structure for appellate court access. A companion House Government Reform Committee package has similar provisions, but goes a step further by upgrading due process enforcement rights for all employees paid with taxpayer funds, including national security and contractor workers. They would equal those available for corporate workers since the 2002 Sarbanes Oxley law, such as jury trials if administrative agencies do not issue timely rulings.

Over the next month the coalition will introduce conference committee staff to a series of public servants, primarily national security professionals, who lost their jobs by warning of vulnerability to terrorist attacks both before and since the 9/11 tragedy.


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