On July 29, 2009 the Senate Committee on Homeland Security and Governmental Affairs unanimously reported out of committee S. 372, the Whistleblower Protection Enhancement Act of 2009. Unfortunately, this bill contains many significant differences from the House Bill (H.R. 1507), which the National Whistleblowers Center (NWC) fully supports.
This post is the eleventh in a series of twelve, examining specific weaknesses in the Senate Bill. Each installment examines a crucial issue of whistleblower rights compromised by the Senate’s version of the bill.
XI: IS FILING A NATIONAL SECURITY WHISTLEBLOWER CASE UNDER S. 372 MALPRACTICE PER SE?
In the posts 9 and 10, we set forth some of the deficiencies in the national security whistleblower section of S. 372. We explained how it is basically impossible for a whistleblower to win under the current Senate language.
Simply wasting many years and thousands of dollars in a new bureaucracy that Franz Kafka would have marveled at is not enough unto itself to say that filing a claim under the Senate provisions would constitute legal malpractice. However, Title II of S. 372 is not so benign. It is a retaliators fantasy. It creates a process, which permits the agency to completely discredit an employee and destroy their career in law enforcement and intelligence forever.
These are extremely serious allegations, but let me explain how it works. When the employee files a whistleblower claim the agency conducts the investigation. The agency is empowered by the statute to render a credibility determination against the whistleblower. The agency can make a finding that the employee is not trustworthy. Such a finding in law enforcement or intelligence will mark the end of that employee’s career.
First, under the Supreme Court cases of Brady v. Maryland, 373 U. S. 83 (1963) and Giglio v. United States, 405 U. S. 150 (1972) if a law enforcement officer has issues related to truthfulness in testimony the prosecution in any criminal case is required to provide this information to the defense. Therefore, these agency findings will be required, under constitutional law, to be submitted to the defense in any case where the employee may testify. These types of findings on credibility will mark the end of an employee’s career as they will no longer be able to work on any cases that may require in-court testimony.
Second, a finding by an agency that an employee was not truthful or reliable will be forwarded to the security clearance office. They security clearance will likely be reviewed and denied. If an employee’s security clearance is revoked they will be removed from their position.
Third, a whistleblower who suffers a Giglio smear or has their security clearance revoked will face long-term consequences, including the inability to work in the private sector. Essentially the ability to get another job in the intelligence or law enforcement area is gone.
Finally, the Title II has a masterful stroke if the employee appeals their adverse credibility determination to the newly created Intelligence Community Review Board. The Board is statutorily given the ability to issue a final decision on the credibility and truthfulness of the whistleblower. Under the statue, this finding must be made public and published to Congress. The finding that will destroy a whistleblowers career is plastered in the public domain for anyone to see.
You may be asking yourself, isn’t the right to an appeal something good?
Under normal circumstances, yes, but not when Franz Kafka writes the law. The appeals provision is as follows. The whistleblower is not given the right to appeal before a court, they must appear before the Intelligence Community Whistleblower Board. The Board is comprised of executives in the intelligence community and is prohibited from hearing testimony or admitting evidence. Thus, when an agency discredits a whistleblower, they cannot present any new evidence to defend themselves. The Board will render a final decision on credibility, which will be based solely on an agency created record. They are prohibited under the statute from simply calling the whistleblower in and rendering their own decision on credibility.
So, is taking a whistleblower to this Board legal malpractice? Yes.
The risk that any employee faces in appearing before the Board is just too great. The employee should avoid these procedures at all costs. Given the track record of the FBI and other agencies in handling whistleblower complaints, to place a client’s hands in this process would be tantamount to professional suicide. There is nothing good in Title II as it is currently drafted. It will be a sad day for the public’s right to know, oversight and accountability, and basic fair play for the Senate to ever approve such a bill.