Washington, D.C. December 27, 2012. The Washington Post published year-end articles that highlighted three ongoing projects of the National Whistleblower Center.
In an article published on December 26, "Top 10 stories in the federal workforce in 2012", The Washington Post cited the scandal involving FDA electronic spying on its own scientists who blew the whistle on agency misconduct. The Post ranked the FDA electronic spying scandal as the number 9 story that affected the federal workforce this past year. The NWC has been actively supporting the scientists who have sued the FDA for whistleblower retaliation and challenged the constitutionality of the FDA's secret monitoring of the scientists' personal and private emails. As revealed by the NWC and the whistleblower scientists, the FDA targeted the whistleblowers for electronic surveillance by installing secret spyware on their computers. The FDA captured confidential emails from the whistleblowers' personal and private email accounts (such as Yahoo and Gmail accounts) and the FDA stole the whistleblowers' confidential communications with their attorneys as well as communications with members of Congress, the Inspector General and others discussing the whistleblowers' allegations of serious wrongdoing by the agency.
In the same article, the Post mentioned the passage of the Whistleblower Protection Enhancement Act (WPEA) as the number 3 story affecting the federal workforce. Although the WPEA falls short of the landmark reform that whistleblower advocates have pushed for more than a decade, the scaled back version finally enacted by Congress this Fall contained long needed improvements in the whistleblower law that protects federal employees. The NWC worked in coalition with a number of other groups to ensure that harmful provisions were removed from the WPEA before final passage of the modest reform bill. Left out of the WPEA were any real protections for intelligence agency or national security whistleblowing, federal court access and jury trials to challenge retaliation by agencies (despite that similar court access is available for federal employees in other contexts), and true reform of the appellate review process. Despite these shortcomings the NWC and other groups endorsed the final WPEA bill which removed some barriers that had excluded employees from protection and created a new remedy to provide for compensatory damages to provide monetary relief to whistleblowers for harm to reputation or emotional distress (remedies that had not previously been available). Challenges lie ahead for the whistleblower community to demand more extensive reforms that were left out of the WPEA. The NWC remains committed to advocate for stronger whistleblower reforms for federal employees in 2013.
Finally, another Post article published on December 22, "Review of FBI forensics does not extend to federally trained state, local examiners" highlighted continuing problems with the FBI Laboratory's review of 21,000 cases impacted by alleged forensic misconduct. The Post article follows up on whistleblower allegations first raised by Dr. Frederic Whitehurst in the 1990's and confirmed by the Dept. of Justice Inspector General in 1998. The latest forensic scandal involving the FBI Lab grows out of Dr. Whitehurst's whistleblower allegations and the Justice Department's failure to properly review cases impacted by Dr. Whitehurst's allegations of forensic fraud. Following his settlement with the FBI, Dr. Whitehurst established the Forensic Justice Project, as part of the NWC, to continue to monitor the Justice Department's review of cases handled by the FBI Lab to determine whether individuals were wrongfully convicted from the FBI's forensic fraud. After obtaining tens of thousands of pages under the Freedom of Information Act, the NWC and Dr. Whitehurst worked with The Washington Post to examine whether the Justice Dept. properly reviewed FBI Lab cases and notified criminal defendants whose cases were likely impacted by allegations of forensic fraud. In April of 2012, the Post published a three part series on serious flaws in the Justice Dept.'s review of the FBI Lab scandal, and with the help of NWC in reviewing the FOIA records, it concluded that hundreds of criminal defendants who were convicted based in part on testimony of FBI Lab examiners, never were contacted by the government after the Justice Department had found problems affected their convictions. The current review centers on 21,000 hair and fibers cases handled by the FBI Lab. Two cases in the District of Columbia were found to result in innocent men each spending more than 20 years in prison based on false hair matches by FBI Lab examiners. The work of one of those FBI Lab examiners was originally identified by Dr. Whitehurst as suspect back in the 1990's but the Justice Department never properly reviewed or looked into the cases handled by that Lab examiner. It has been irrefutably established through DNA testing that these two individuals convicted in the District of Columbia were in fact innocent. Dr. Whitehurst and the NWC will continue to review these and other ongoing problems in the FBI Lab in 2013, and urge Congress to conduct more aggressive oversight of these problems.