By Joe Davidson
Friday, May 15, 2009
Federal whistleblower advocates finally can see the light at the end of the tunnel, and this time it's not a freight train coming at them -- they hope.
Although they were encouraged by much of the Obama administration's congressional testimony yesterday on the Whistleblower Protection Enhancement Act, it also became clear that the advocates and the administration aren't always on the same track to a shared goal.
The administration made a strong push for strengthening whistleblower protections, saying the "best source of information about waste, fraud, and abuse in government is often a government employee committed to public integrity and willing to speak out."
Rajesh De, a deputy assistant attorney general, told Congress that President Obama is eager to sign legislation "that ensures safe and effective channels for whistleblowers to report and correct wrongdoing without fear or retaliation."
But De stopped short of offering the administration's full endorsement of the legislation, sponsored by Reps. Chris Van Hollen (D-Md.) and Todd R. Platts (R-Pa.), which the House Committee on Oversight and Government Reform now is considering.
On the key issue of protection for intelligence community and national security whistleblowers, the administration proposed creation of a new panel within the executive branch instead of allowing federal employees to go to Congress with their complaints.
"The current bill would grant federal employees the unilateral right to reveal national security information whenever they reasonably believe the information provides evidence of wrongdoing, even when such information is legitimately classified or would be subject to a valid claim of executive privilege," De said.
He also spoke against a provision that would allow employees who contend their security clearances were stripped in retaliation for whistleblowing to challenge those actions in a jury trial, after exhausting administrative remedies. The court would not be able to restore security clearances but could reinstate employees and compensate them.
Court action and allowing national security whistleblowers to go directly to Congress, De argued, could step on the president's prerogatives. "Providing a judicial remedy, even one that does not mandate restoration of the clearance, is inconsistent with the traditional deference afforded executive branch decision making in this area," he said.
While whistleblowers and their advocates praise Obama for being more supportive of their issue than past presidents, they pushed him to make good on campaign promises to support the legislation.
After De's testimony, the National Whistleblowers Center issued a statement that said his testimony overlooked a 1996 report by the General Accounting Office, now the Government Accountability Office, that concluded: "[W]histleblowers can have full due process rights (including access to courts) without jeopardizing national security. The GAO identified specific procedures currently in place that would prevent the improper release of classified information if national security employees were provided full court access."
Sometimes, the importance of an issue to an administration can be gleaned by the rank of the person sent to talk about it. As a deputy assistant attorney general, De is at least five rungs from the top of the Justice Department's ladder. His testimony ignored some points in the legislation that are important to advocates, leaving Tom Devine, legal director of the Government Accountability Project, to say, "The jury is still out on the position the administration will take on the hard issues."
Nonetheless, the advocates welcomed the strong words of support for whistleblowers from an administration that considers them to be courageous and patriotic.
"A government employee who speaks out about waste, fraud or abuse performs a public service. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled," De told the committee hearing.
Administration officials have worked closely with whistleblower advocates and both sides seem keen on moving a bill that substantially strengthens employee protections. Whatever they come up with, however, won't please everyone.
For example, Robert T. Turner, associate director of the Center for National Security Law, called the bill "flagrantly unconstitutional" and came just short of saying members of Congress would be traitors if they approve it.
"If you enact this bill into law, you will earn the lasting admiration of our nation's enemies," by neutralizing the CIA, and "betray the oath of office you each took to support our Constitution," he said.
No one seemed to take that seriously.
Written testimony submitted for the hearing can be found at http://oversight.house.gov/story.asp?ID=2435.