Changes to the Whistleblower Protection Enhancement Act currently working its way through the Senate would cover up intelligence failures and civil liberties abuses in the Federal Bureau of Investigation (FBI) by repealing existing protections for FBI whistleblowers and strengthening the state secrets privilege.
The bill is currently being “hotlined” through the Senate, which entails both the Senate majority leader and minority leader agreeing to pass the legislation by unanimous consent without a roll-call vote. This practice is usually used to pass uncontroversial bills and simple procedural motions, but opponents fear it is being used to push through this measure with little or no public debate.
“It’s unethical to use an ‘enhancement act’ as a vehicle for repealing existing whistleblower rights,” said Stephen Kohn, executive director of the National Whistleblowers Center, an advocacy organization which aims to protect federal employees who speak out about wrongdoing in the workplace.
Though the hotlining process allows senators to object to the passage of a bill in an alloted amount of time, sometimes as little as 15 minutes following its adoption, advocates believe that the unseen power of the FBI in the nation’s legislature will ensure that the bill passes.
If it does, it would effectively remove federal employees working for the FBI from protection under the Civil Service Reform Act of 1978, which specifically protects whistleblowing in the workplace.
Kohn, an attorney who has represented prominent whistleblowers in court, says the provision would mean that FBI employees must prove “gross mismanagement” if they are to speak out on wrongdoing in the workplace, which “would make it very difficult to prove” as most bigger investigations start with a “small mismanagement.”
He lays responsibility for the passage of this law with Sens. Joseph Lieberman and Susan Collins, respectively the chairman and ranking member of the Committee on Homeland Security and Government Affairs. People should know “if it does get hotlined, their senators went along with it,” Kohn said.
Neither Senator Lieberman’s nor Susan Collins’ office responded to requests for comment.
According to a letter signed by well-known national security whistleblowers and advocates, the bill “will become known as the Whistleblower Discouragement Act of 2010 if these provisions related to national security and FBI employees are not fixed. The ability of Inspectors General, Congress and the American public to learn about waste, fraud and abuse in numerous agencies that spend hundreds of billions of dollars will be completely undercut. Intelligence failures that led to incredible blunders both before and after the 9/11 attacks will be hidden from oversight and scrutiny. Although honest federal employees who desire to inform their government officials of mistakes and abuses will be the first victims of S. 372, the real victim will be the American people.”
However, it is not only those who work with the FBI that will be affected by this. “The current version [of the bill] will set whistleblower protections back 30 years for hundreds of thousands of federal employees,” the letter went on to say.
The act of whistleblowing and what federal employees have blown the whistle on ranges from Bunnatine Greenhouse standing up against contracts given to Halliburton for the reconstruction of Iraq to Jane Turner uncovering failures in the FBI’s protection of child sex crime victims to Joseph Carson speaking out against safety violations at the Department of Energy.
Protections for whistleblowers have also long been a matter of debate – many prominent whistleblowers have cases pending for whether their release of often sensitive information was warranted, and federal employees with lower profiles often suffer intimidation and job discrimination for their pains.
Carson, who has been called a career whistleblower, was denied job duties, told he was an unacceptable employee and had his security clearance threatened with removal, which would have kept him from being able to do his job, for trying to highlight safety problems in his workplace.
He said, however, that the problem goes far beyond whistleblowing and, in focusing on the workforce retaliations which he and countless other suffered, “obscures the forest for the trees.”
According to Carson, it is the inherent weakness of the US Office of Special Counsel (OSC), set up to protect the rights of federal employees against employer retribution and other discrimination, which “violates the heart of the federal civil service” and “has been so corrupt it has never really pushed what its powers are to protect federal employees.”
The systemic nature of the intimidation, which he and countless other whistleblowing federal employees suffered, has led Carson to turn the fight away from his employers to the OSC itself – he has been involved in a federal legal appeal against the OSC for 18 years. If he wins, he will have the agreement of a federal court that the OSC did not do its duty. If he loses, he plans to take his case to the Supreme Court.
“There is a good news aspect to this in the sense that this is fixable,” said Carson. However, until then, “I would have to frankly advise any concerned federal employee, if you can’t live with yourself looking the other way, don’t.”