With the elections over, Congress gets back to business with intelligence reform legislation at the top of its agenda. However, under the radar, the equally imperative reform of whistleblower protections might be killed, despite support by both Republicans and Democrats in Congress.
Intelligence reform was sparked in part by whistleblower Coleen Rowley, the 2002 Time Magazine co-person of the year who exposed the FBI's failure to heed evidence of terrorist plots before 9/11. Yet patriotic government truth-tellers like Rowley are quashed time and time again by their own embarrassment-averse and tin-eared agencies for doing what is right -- addressing glaring vulnerabilities that threaten the public.
This is poignant in the post-9/11 era. America needs real whistleblower protections, not the hulking wreck that passes for them now.
Some in Congress recognize this need, although many more should. There are bills sponsored by Rep. Todd Platts, R-Pa., and Sen. Daniel Akaka, D-Hawaii, under consideration in Congress to fix the troubled Whistleblower Protection Act. However, the White House is attempting to stall the legislation to let it die. An administration serious about security would do otherwise.
The act has been so weakened by judicial activism, it hardly justifies its name -- instead of protecting whistleblowers, it functions as a fig leaf, feigning shelter. As it stands, it is useless or worse.
Several problems plague it. There are loopholes: Employees are not covered if they find wrongdoing as a part of their job; report offenses to their management; challenge policies; or tell co-workers.
Furthermore, the federal Circuit Court, the only court with jurisdiction over federal whistleblower cases, has interpreted the act as shielding only those whistleblowers whose charges are supported by proof impossible to refute. This sets an impossibly high standard for whistleblowers to meet.
The message to potential truth-tellers? "Forget it."
But some try anyway.
After FBI Special Agent Robert Wright reported weaknesses within his antiterrorism unit, the bureau launched four retaliatory investigations designed to harass and silence him. According to Wright, "Sept. 11 is a direct result of the incompetence of the FBI's International Terrorism Unit."
Richard Levernier, a 22-year employee at the Energy Department, reported serious security breaches he found while evaluating nuclear weapons sites. He was stripped of his security clearance -- effectively fired. Reflecting on his experience, Levernier said, "I would not do it again, even though I truly believe it was the right thing to do."
Congress should not stand by while conscientious federal workers are punished for trying to defend the American public. Although current whistleblower legislation was unanimously approved within committees of both bodies of Congress, the Bush administration has asked congressional leaders to keep the bills from a floor vote.
The Senate has placed a leadership hold on the Federal Employee Protection of Disclosures Act, a strong piece of protection legislation. Also on hold is the House Whistleblower Protection Enhancement Act, a diluted version of the Senate bill. It lacks crucial improvements offered in the Senate version, such as challenging the removal of security clearances and giving whistleblowers fair access to federal appeals courts.
Real protections would have reasonable standards for protection, make retaliation illegal and offer a fair hearing independent from the whistleblower's agency.
The White House should endorse the new whistleblower legislation, and not block federal employees from voicing their concerns without fearing for their lives and jobs.
As Coleen Rowley and other whistleblowers recently told Congress, "It is unrealistic to expect that government workers will defend the public if they can't defend themselves."
Nick Schwellenbach and Lauren Robinson are both fellows at the Project on Government Oversight, a government-watchdog group that works with whistleblowers. Write to them at Project on Government Oversight, 666 11th St. NW, Suite 500, Washington, D.C. 20010.
Originally Published on Sunday, November 21, 2004 by the Detroit Free Press