The Whistleblower Protection Act (S. 372) is pending in the Senate and seeks to clarify the rules and protections that cover whistleblowers.
Some, however, think it will have the opposite effect, and it’s drawing fire from some whistleblower groups.
Frederick Whitehurst is with the National Whistleblowers Center and has written a letter of opposition to the bill. He also blew the whistle on forensic fraud in an FBI crime lab back in 1993.
He said that he thinks the bill is mislabled.
“This is not what they’re saying it is. This . . . returns control of the process back to the very organization that is being exposed, and that’s bizarre. When I did what I did at the FBI, there was no whistleblower protection because the FBI refused to obey federal law. . . . What this thing is doing is just ripping the guts right out of it.”
Bill Bransford is an attorney with the firm Shaw, Bransford and Roth and said the impetus behind the bill is not to harm whistleblowers.
“It was a very difficult problem that really was not capable of being fixed legislatively, but we tried. So you had this imperfect law, and, the result of it is, you get some really bad cases that come up before the federal circuit court of appeals, and they’ve issued some decisions that have had a sweeping effect of basically not protecting whistleblowers,” he explained.
Whitehurst’s reservations about the bill stem from the fact that it would allow federal agencies to attack the credibility of the whistleblowers themselves.
“When they can take away their security clearances because of that lack of credibility — When they can take away their right to appeal — then you’re just not going to have whistleblowing. What you’re going to have is good employees . . . Go elsewhere because you’re going to create an impossible situation for them.”
After reading the bill, Whitehurst said he was “sickened” by it and said it’s a “slight of hand”.
“I would pray the White House doesn’t have anything to do with this because I voted for [President Obama] and it would make me sick to think I had put a tool in place that would hurt this country this bad.”
Groups that represent rank and file federal employees weren’t the only ones concerned about this bill. Managers’ organizations have had their reservations, as well.
There was a period last summer when various groups that represent federal employees were tapped for their ideas. Bransford said many, including the Senior Executives Association, were worried about the House counterpart.
“[That] would permit jury trials — whistleblowers to take their manager to court and have a jury trial. So, the [SEA] was opposed to that because it felt that having jury trials would be a chilling effect on managers in dealing with problem employees who might become whistleblowers at some future point. So, the compromise that was worked out, and the whistleblower community — some of them were quoted as being on board back in July — [was that] the jury trials would be available only in limited circumstances. The [SEA] actually supports the current version of S 372.”
Whitehurst and others, however, are still worried about the effect this bill could have on those who want to speak out.
“We all have to have somebody looking over our shoulder — every one of us. . . . The whistleblower that goes through the channels that have been provided so far — that is allowed to go to the Congress, that is allowed to go outside to an inspector general — can take his issues responsibly out. For instance, I wrote 237 letters to the inspector general. Without being able to do that, the FBI spent nine years ignoring what I was saying — and covering it up. Those were horrendous things that were happening in that laboratory.”
Whitehurst said, under no cirumstances should S. 372 be passed.
Bransford, however, thinks it will, saying that there have been efforts to get unanimous consent on it and send it to the House. He also added that he doesn’t think it would be detrimental to federal employees, or those specifically in the FBI.
“There is a provision that would take the FBI out of the statute, but I think that they would be covered in other ways. . . . There is part of the bill that relates to creating a new whistleblower protection device for the Intelligence Community, and I would think that the FBI would probably be in that and, if not, some administrative type of protection. With respect to other employees that are covered, I think this law actually greatly enhances their protection.”
Bransford cites two examples to support his assertion: if an employee makes the disclosure to the alleged wrongdoer, he or she is not currently covered under the law; also, if the employee makes the disclosure as part of routine job duties, he or she is also not covered. S. 372 expands protections under both of these circumstances.
Whitehurst said the law doesn’t go far enough, and explained what he thinks needs to be done.
“[Whistleblowers] absolutely have to have a right to counsel. They absolutely have to have a right to review. They absolutely have to be able to go to an inspector general. . . . If we can’t even go to an inspector general with these issues, then we end up with Deep Throat — that coward FBI assistant director who went to the press but wouldn’t put himself forward despite his oath of office. I’m going to denigrate him because he was an FBI agent and if he saw something wrong he should have stood up like a man and said something about it — you get that kind of thing. That’s very destructive of law enforcement, of our society where people, in the cover of anonymity, make allegations.”
By Dorothy Ramienski
Federal News Radio