Obama administration officials reject charges that they are “trying to stop aggressive journalism in the United States by using the Espionage Act to take whistleblowers to court,” as ABC News reporter Jake Tapper put it last month.
Yet, Tapper’s question during a White House briefing drew national attention to a growing sense of unease among whistleblower and good-government types who feel President Obama isn’t fully living up to his billing, despite welcomed appointments to whistleblower-protection agencies.
Whistleblower advocates were cheered by this statement on Obama’s transition Web site about a month after he was elected:
“We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government. Obama will ensure that federal agencies expedite the process for reviewing whistleblower claims and whistleblowers have full access to courts and due process.”
The cheering has long subsided.
The government considers federal employees charged under the Espionage Act to be leakers of classified information, but that doesn’t convince advocates, who see the prosecutions as overzealous attacks on whistleblowers.
“The Justice Department does not target whistleblowers in classified leak cases or any other cases,” said Dean Boyd, an agency spokesman. The department does encourage employees to report government wrongdoing through “well-established mechanisms.”
Boyd continued: “However, we cannot sanction or condone federal employees who knowingly and willfully disclose classified information to the media or others not entitled to receive such information.”
It’s valid to distinguish between leakers and whistleblowers, said Tom Devine, legal director of the Government Accountability Project, “but the administration is prosecuting both.”
To the consternation over the Espionage Act prosecutions, add the Food and Drug Administration’s surveillance of employees’ private e-mail accounts and you have two high-profile reasons for whistleblower discontent.
“Obama’s Justice Department has sent a clear message of fear and intimidation by vigorously pursuing prosecutions of whistleblowers and so-called leakers, rather than the people whose misconduct was being disclosed,” said Danielle Brian, executive director of the Project on Government Oversight.
Brian said the administration’s approach to whistleblowers “is almost a Jekyll and Hyde situation.” The Espionage Act and the FDA cases are one part of that split personality, and the Office of Special Counsel is the other.
Brian and other advocates praise appointments that have revitalized the Office of Special Counsel and made the Merit Systems Protection Board a somewhat friendlier place for workers. Both agencies play a key role in the protection of federal whistleblowers.
But each agency is limited by shortcomings in the Whistleblower Protection Act, which groups have been trying to strengthen for more than a decade.
“A lot of credit is owed since this was the first administration to testify in favor of critical reforms such as access to a jury trial and protections for intelligence and national security whistleblowers,” Brian said. “The White House was extremely engaged in helping to shape and pushing to pass the Whistleblower Protection Enhancement Act in the last Congress.”
But since the legislation was defeated, “there has been a lot less visible effort to pass the reform in this Congress,” she said, perhaps because the White House’s “help hasn’t been needed yet in the Senate and has not necessarily been welcome in the Republican-controlled House.”
If the legislative stall continues, whistleblowers will increasingly look for White House action. “The litmus test will not be administration efforts within Congress,” Devine said. “It will be whether the administration fills the vacuum of congressional inaction to protect national security whistleblowers.”
In a National Action Plan on open government issued in September, the White House promised to “explore options for utilizing executive branch authority to strengthen and expand whistleblower protections” if Congress remains deadlocked.
Taking a strong initiative on this front, by issuing a presidential directive boosting whistleblower protection, especially in national security cases, would be a major step in the administration regaining the confidence of those who work with whistleblowers crushed by Uncle Sam’s big foot.
Jeff Ruch, executive director of Public Employees for Environmental Responsibility, wants Obama to demonstrate his bona fides “by appointing a whistleblower to run a program that he or she risked their career to reform or by restoring whistleblowers . . . and punishing retaliatory managers.
“Setting just one prominent example would send a powerful message that would reverberate throughout the entire executive branch.”