Jewish World Review August 18, 2004 / 1 Elul, 5764

Tom Devine and
Greg Watchman

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Defending those who defend the public | "If we leave our voices silent - inside and outside of our places of employment - we will lose our freedom as a country and as citizens." With these words a whistleblower recently echoed a recurring theme for anyone daring to expose government wrongdoing. He knows the price for defending the public: Whistleblowers typically risk their professional and economic survival for "committing the truth."

Every year, government whistleblowers exercise freedom of speech to expose government wrongdoing that betrays the public trust. The Freedom of Information Act protects the public's right to know the reality behind government decisions. Through discreet disclosures, FOIA officers have served as tutors and navigators for what documents to request from which offices to expose bureaucratic misconduct. In this sense, FOIA officers often emerge as the most significant government whistleblowers. As witnesses in FOIA lawsuits, they have been even more indispensable through testimony exposing cover-ups or destruction of documents requested by citizens. In theory these civil servants have rights under the Whistleblower Protection Act of 1989 as a shield against retaliation by their employers. When unanimously passed , the WPA was the strongest free speech law in history, at least on paper. In reality, it has been a trap, creating far more victims than it helps. The U.S. Congress must act this year to restore genuine, enforceable rights for those who defend the public interest on the job.

What is wrong with the current law? Only a narrow class of disclosures is protected; for example, disclosures as part of an FOIA officer's job duties are not covered. Numerous types of retaliation, such as revoking their security clearances are also not covered. The burdens of proof are set impossibly high, and there are numerous other Kafkaesque due process problems. Together, these shortcomings have produced a stunning record of failure. At the Merit Systems Protection Board, which hears WPA claims, only two out of thirty whistleblowers have prevailed on the merits in cases decided since 1999. Even worse, at the Federal Circuit Court of Appeals, which has exclusive jurisdiction over WPA appeals of administrative rulings, only one WPA claimant out of 95 has prevailed on the merits in the past ten years - a win rate that doubtless deters many from stepping forward. This pattern of futility will continue until the law is strengthened.

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The WPA's inadequacies have emboldened wrongdoers to gag or retaliate against those who expose their abuses of power. When U.S. Park Police Chief Theresa Chambers warned that Sept. 11-related cuts meant fewer cops on the beat, she was fired. When Transportation Security Administration Red Team members found guns still getting through airport checkpoints, they were silenced. Department of Energy employees were punished for disclosing security failures at nuclear weapons facilities. Richard Foster, the chief actuary for Medicare, was threatened with termination if he provided correct cost information to Congress. This pattern of whistleblower mistreatment and cover-ups deprives the Congress and the public of vital information about government wrongdoing, and poses a substantial threat to an open, accountable government.

Members of Congress talk tough about stopping bureaucratic abuses of power, and now have an opportunity to enact a bill to strengthen the WPA. The bill would broaden coverage of disclosures, expand the scope of prohibited retaliation, restore reasonable burdens of proof of claims, expand whistleblower access to the courts and fix other due process problems. Most significantly, the WPA amendments have bipartisan support, and were reported out of the Senate Government Affairs Committee unanimously on July 21. Congress must act this year to pass this bill, not just for whistleblowers but for the public. If put to a vote, few members would oppose strengthening good government legislation nicknamed the "Taxpayer Protection Act." Whether they find time depends on whether the public demands it. Too many recent incidents of government corruption reflect unprecedented government secrecy enforced by repression. The door to open government is sealed shut as long as federal employees - whistleblowers, FOIA officers and others - choose to remain silent. In this atmosphere, the Whistleblower Protection Act and the Freedom of Information Act are twin pillars for the public's right to know. But it is unrealistic to expect federal employees to defend the public, if they can't defend themselves. Whistleblowers are the key for government accountability to be the rule, not the exception.

Greg Watchman is the executive director of the Government Accountability Project and Tom Devine is the legal director. Comment by clicking here.


© 2004, Lewis A. Fein