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 fourth 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.
IV: BACKSTABBING FBI WHISTLEBLOWERS: WILL THIS PROBLEM REALLY GET FIXED?
Putting it bluntly: S. 372 repeals all existing whistleblower rights for FBI employees.
From the start of the negotiation process with the White House, the NWC identified this roll back of FBI whistleblower rights. In meetings with the White House staff the NWC urged that these provisions be changed. Unfortunately, they were incorporated into the Senate markup. Upon reviewing the Senate markup language, the NWC notified the Senate Judiciary Committee of this problem on August 5th and asked that they ensure that it be corrected. Since then, the public interest community has insisted that the current FBI whistleblower rights must be restored. As reported in the Washington Times, it appears that the White House is expressing a willingness to fix the problem. However, the White House has not committed to the promise in writing and no alternative language has been proposed. The devil will be in the details.
It was most disappointing that a whistleblower “enhancement” bill would in fact roll back protections FBI employees have had for over 12 years. Between 1993-98 the NWC had the honor of representing FBI whistleblower Frederic Whitehurst. On his behalf we sued the government in order to force the President of the United States to establish legally required protections for FBI whistleblowers under an obscure section of the Civil Service Reform Act codified as 5 U.S.C. § 2303.
Dr. Whitehurst prevailed in his case, and in 1997 President Clinton signed a memorandum that mandated the Attorney General implement whistleblower protections for FBI employees. Those protections were implemented, and today they are as good as those which exist for most other federal employees. FBI employees can file whistleblower complaints, which are investigated by the Department of Justice Office of Inspector General. FBI employees who file claims with the IG have the same procedural rights as other government workers who file claims before the Office of Special Counsel. An employee who disagrees with the results of the IG investigation, can request a hearing within the Department of Justice.
These protections will be repealed under S. 372!
Congress must be careful when fixing this repeal. There are 3 points that must be changed in order to fully fix the problem. First, Section 121(b)(2) (Page 59) sets an effective date that would, if signed into law, result in the immediate dismissal of all pending FBI whistleblower cases. Second, Section 121(b)(1) (Page 58) contains the actual revocation of the existing 2303 protections. Third, Section 121(a)(2)(A) (Page 44) places the FBI under the jurisdiction of the new Intelligence Community Whistleblower Protection Board. That board (as will be explored in a future blog post) affords no substantive protections to national security employees. By placing the FBI under the Board’s jurisdiction the Act repeals 2303 by implication because the FBI cannot be under two simultaneous procedures. Therefore, in order to ensure the restoration of FBI whistleblower rights all three provisions must be changed.
This all begs the question what ever happened to “enhanced” whistleblower rights? The law will devastate existing rights enjoyed by FBI agents, and provide them with no new protections. It is a complete victory for those who would cover up any abuse of authority or wrongdoing in the FBI. In regard to oversight of the FBI and protection of FBI whistleblowers, S. 372 is the worst setback for accountability and due process in over thirty years.
The House of Representatives got it right. The House version will effectively protect all national security whistleblowers and should be signed into law.