Whistleblowers seek protection

Published on February 02, 2009

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Whistleblowers seek protection

Monday, February 2, 2009
Audrey Hudson (Contact), The Washington Times

With a swipe of President Obama’s pen, Don Strange could get his job back with the Federal Air Marshal Service.

The former special agent in charge of the Atlanta field office, one of the largest in the nation, was unceremoniously escorted from the building in February 2005. He was later fired, after challenging the agency’s boarding procedures, dress code and other security issues he says threatened to expose undercover officers.

George Taylor, an assistant to Mr. Strange, challenged what he called the racist treatment of two of his men by a supervisor at Ronald Reagan Washington National Airport. He then was demoted from management to routine air marshal duty.

His schedule was so heavy that he developed barotrauma – damage from barometric pressure – that ruptured both eardrums and caused his sinuses to collapse, according to medical documents. He was restricted from duty in September 2006 due to barotrauma, and on Oct. 23 a notice from the Labor Department said his claim for workers’ compensation had been accepted.

A coalition of government-watchdog groups now is asking the new administration to review and correct retaliation against air marshal whistleblowers who spoke out during the first few years of the Department of Homeland Security.

“We request your leadership to restore whistleblower rights and government accountability and end an era of secrecy enforced by repression,” the coalition said in a Jan. 16 letter to Mr. Obama, just days before he took office.

The groups include the Government Accountability Project, the American Federation of Government Employees, the Bill of Rights Foundation, the National Taxpayers Union, the National Whistleblower Center, the Project on Government Oversight, Public Citizen, Public Employees for Environmental Responsibility, the Whistleblower Mentoring Project and Openthegovernment.org.

The groups are asking Mr. Obama to issue an executive order to review and restore the careers of whistleblowers “who lost their jobs because they sought to defend the public” under former Federal Air Marshals Service Director Thomas Quinn, who retired in January 2006.

In addition, these and other groups lobbied Congress last week to include whistleblower-protection language for federal employees in the stimulus package, an amendment that passed by voice vote in the House on Wednesday.

Federal Air Marshal Service spokesman Nelson Minerly says a number of changes have been made under the current director, Robert Bray, and his predecessor, Dana Brown, including listening sessions and task forces to root out internal problems and find solutions.

For example, changes have been made to the dress code, boarding procedures and scheduling to allow more down time between flights, Mr. Minerly said.

As for the executive-order request, Mr. Minerly declined to comment, citing ongoing litigation.

“We cannot comment on specific cases under review by the Merit System Protection Board, Office of Special Counsel or any other investigative agency,” Mr. Minerly said.

“As we have stated, we have outreach going on right now with our work force, and we have been very proactive in listening to our work force, which has had results in some way, shape, or form to the way this agency does business.”

Today, the agency operates a Web-based anonymous forum to make suggestions to leadership on needed changes or security gaps, and in 2006 created an ombudsman position to handle questions and concerns in a confidential manner.

The White House did not return a request for comment. However, Mr. Obama has a history of supporting whistleblowers, defending them as clients, and supporting Illinois legislation for whistleblower protection.

The House amendment would grant employees the right to a jury trial in federal court, and protect federal scientists, FBI and intelligence agency whistleblowers, contractors and airport screeners. It would neutralize the government’s use of the “state secrets” privilege and provide whistleblowers with the right to be made whole, including compensatory damages.

A similar bill passed the House 331-85 in March 2007, but died in the Senate.

According to Tom Devine, legal director for the Government Accountability Project, the bill died in the Senate in the last week of the session after two senators placed secret holds on the legislation.

“We since have learned those actions were a courtesy to the Justice Department´s Civil Division, which always has fought whistleblower rights, regardless of the president or party leading the administration, because it serves as counsel for the government in civil-service retaliation cases,” Mr. Devine said.

“When it wouldn´t have triggered final enactment, the Senate earlier twice had approved the bill by unanimous consent,” Mr. Devine said.

Asked who opposed the legislation, Mr. Devine said, “No one who´ll admit it. Opposition is always in back rooms under cloak of denial.”

Former Rep. Pat Schroeder, Colorado Democrat, who supported whistleblowers and authored whistleblower-protection legislation during her tenure, said Congress has been neglectful in its oversight or protection of federal whistleblowers.

“They need to pull out the legislation and revitalize it,” Mrs. Schroeder said. “We used to honor whistleblowers.”

The proposal for the executive order was drafted by current and former Federal Air Marshal Service (FAMS) whistleblowers, including Robert MacLean, who was fired after blowing the whistle on plans to eliminate protection on long-leg or coast-to-coast flights to save money, contrary to a congressional mandate that such flights have air marshals.

The information made public by Mr. MacLean was not classified at the time, but was retroactively classified as “sensitive security information” after Mr. MacLean was fired for the leak.

“This executive order will send a message to federal government managers or those employees tasked with combating terrorism and protecting public safety that the new administration will not condone whistleblower retaliation when gross mismanagement and corruption is exposed, or when public safety is being endangered,” the order said.

It asks that a panel be convened to review whistleblower retaliation to determine whether employees should be reinstated.

“The Government Accountability Project believes in the justice of their petition, and we have decided to use all of our resources as advocates to champion this,” Mr. Devine said.

Mr. MacLean says he does not regret blowing the whistle; he just wants his job back.

“I want to serve as if I had never blown the whistle,” Mr. MacLean said. “I want President Obama to bring back all national-security whistleblowers to serve in federal government again.”

Jon Adler, president of the Federal Law Enforcement Officers Association, said his group does not know the total number of air marshals who were fired or retaliated against for blowing the whistle on problematic policies or mismanagement, but said the impact was widespread.

“Not only did it impact the whistleblower, but it clearly impacted morale. Being a whistleblower brought instant career death,” Mr. Adler said.

“I’m optimistic the new administration will give this due consideration. The goal of the proposed executive order is not only to make us whole, but to restore everyone’s confidence in the whistleblower process, and right now, there isn’t any.”

Mr. Taylor called the issue a challenge to the Obama administration’s campaign promises to change the way Washington does business.

“If they are true in wanting to change government, they should step forward and make whistleblowers who have blown the whistle on corrupt and government malfeasance to be made whole again,” Mr. Taylor said. “There is not an American out there who wouldn’t want a person speaking out on corruption and malfeasance. Whistleblowers should be viewed as modern-day patriots, not pariahs.”

But after 35 years in law enforcement, nearly 30 of them in the Drug Enforcement Agency, Mr. Strange said he doesn’t expect a phone call any time soon to return to the Federal Air Marshal Service.

“I’ve lost confidence in the way the government handles this stuff,” Mr. Strange said.

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