Wrong Way to Protect

Monday, February 2, 2009

THIS IS NOT the way it is supposed to work. The $800 billion stimulus package making its way through Congress is supposed to include measures to jump-start the economy -- extension of unemployment benefits and food stamps, infrastructure programs to create jobs. But whistleblower protections?

House members attached an amendment to their version of the stimulus package that would broaden protections against retaliation for federal workers who expose wrongdoing, waste or fraud. The measure extends such protections to employees who work in the intelligence arena, including those at the FBI, and would give such employees the unilateral right to disclose to congressional overseers classified material. The measure also calls for federal court review of executive branch decisions to revoke an employee's security clearance.

The House originally passed the measure as stand-alone legislation in 2007; the Senate passed a more modest version -- without the intelligence provisions -- last year. But the bill died because House and Senate conferees could not reconcile their differences. The primary stumbling block: the whistleblower protections for intelligence employees.

Advocates for whistleblowers have been trying for almost a decade to pass legislation to enhance protections for federal employees that they legitimately note have been eroded by adverse court decisions or agency action. Many aspects of the bill have been chewed over and agreed on in the course of numerous congressional hearings

But attaching the bill to the stimulus package under the pretext that stronger whistleblower protections will enhance fiscal accountability is disingenuous. Trying to ram through the intelligence provisions is just plain wrong.

The executive branch is constitutionally charged with protecting and controlling classified information. A legislative attempt to override the executive could very well be unconstitutional. It is, in any event, irresponsible to condone and essentially immunize an employee's unilateral breach.

The Justice Department, as long ago as the Clinton administration, has vigorously opposed expanding whistleblower protections to national security employees. The Obama administration, which has not yet formally weighed in on the proposal, should stand firm in that opposition, and senators should excise the provision from the stimulus bill. This should not, however, end the matter. All parties -- the administration, lawmakers and advocates -- should continue a dialogue over whether there is a more effective and responsible way to enable intelligence workers to call out wrongdoing.

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