Today the House Committee on Oversight and Government Reform heard from whistleblowers, their advocates, and even an administration official about the need for convincing remedies for federal employee whistleblowers.   Committee Chair Edolphus Towns (D-NY) opened the hearing with an encouraging word about the prospects for Whistleblower Protection Enhancement Act (WPEA), H.R. 1507. He indicated that he had positive signs from the Senate and the administration about getting improved whistleblower protections passed this year. It remains to be seen if these protections will provide full court access, including jury trials, and coverage for national security employees, as is already provided in Title VII cases, and is now proposed in the current text of H.R. 1507. Bunny Greenhouse spoke about how the current law failed to protect her.  She added, “I am well versed in how poorly it works when it comes to federal sector whistleblower protection.”  Here is a photo of Michael German (ACLU), Corinne Kohn (Friends of Whistleblowers), David Colapinto (National Whistleblowers Center), Angela Canterbury (Public Citizen) and Michael D. Kohn (National Whistleblowers Center).

House Committee attenders


Chairman Towns noted how, “Whistleblowers risk their careers to challenge abuses of power and gross waste of government resources.” He added that, “enhancing whistleblower protections helps us to fulfill our role of bringing about a more honest, accountable, and effective government for the American people.” He reported that his committee had worked with the House Intelligence Committee to craft strong whistleblower protections for national security personnel that would also protect classified information.  He explained that having an effective whistleblower protection will help federal employees feel safe to raise issues where they can be most effective, and without having to resort to the media.

Rep. Darrell Issa (R-CA), the ranking member of the Committee, also spoke of the need to protect whistleblowers, “absolutely, without fail.”  He called the need for enhancement, “obvious and vital.” He noted that such protections should not come at the expense of national security, and he looked forward to working toward resolution of this issue and passage of the bill.

Rep. Dennis Kucinich (D-OH) said that whistleblowers “deserve to be thanked, not punished.” “If we can see what is happening, then we have a chance to make it right.”

Mr. Rajesh De, Deputy Assistant Attorney General for the Office of Legal Policy said that the administration “strongly supports protecting the rights of whistleblowers.” He agreed that the time had come to amend the current system.  He specifically supported “make whole” compensatory damages for whistleblowers.  He supports providing protection for raising issues to your immediate supervisor, even if it is part of the employee’s normal duties. He said that national security employees should also have protections. While he did not address the issue of jury trials directly, he did say that for national security employees, the administration wants a new executive branch agency to be responsible for fielding and deciding whistleblower issues.  To experienced whistleblower advocates, that sounds a lot like the current, and failed, Merit System Protection Board.  Mr. De looks forward working this issue out with the Committee. Perhaps the administration is accepting that jury trials are inevitable for everyone outside of national security. At a minimum, Mr. De’s statement certainly shows that the administration saw no need to speak against jury trials when it had the chance.

Ms. Teresa Chambers described her experienced being removed as Chief of the U.S. Park Police after telling the media that her agency was understaffed.  She explained that whistleblowers need a remedy that is “fast and fair.”  She said that jury trials are the best reform Congress can enact.

Representative Chris Van Hollen (D-MD), one of the sponsors of H.R. 1507, reported that he is now “hopeful” that the Senate will pass WPEA.  “We wouldn’t know of the flaws in the existing system if you had not come forward to tell your stories,” he said, thanking the witnesses.  He said that protecting whistleblowers will also protect our taxpayers and our country.

Dr. Louis Fisher is the constitutional law specialist of the Library of Congress. He presented a remarkable history of the role of Congress in national security and foreign affairs. He explained that as long as the administration reserves for itself the decision of who needs to know classified information, then the administration will be able to escape review of abusive practices.  He noted that in 1990, Congress passed a law governing the CIA that made clear that Congress itself has a need to know to carry out its duties as a co-equal branch of government.

Michael German of the ACLU explained his insightful proposal to protect national security whistleblowers.  First, he said, we need to protect employees when they speak out as part of their official duties.  Second, we need a means for all employees to alert members of Congress about protected disclosures, so those members of Congress can pursue lawful means to review classified information contained in such disclosures.

David Colapinto of the National Whistleblowers Center explained how all federal employees, including those working in national security, have access to jury trials for claims of race, gender, religion and national origin discrimination. If an employee needs agency information, the agency’s EEO office can review the information and either approve its release or provide a declassified substitute. He argued that the same procedure can be used for whistleblower cases. Any system that relies on administration appointees, such as the MSPB, will not work.  Only jury trials will be effective.

Today’s hearing marks a turning point in the history of whistleblower protection.  For the first time, legislators are working with a light shining from the end of the tunnel.  We are not out of the tunnel yet, however.  Our political process still needs to impress on the decision makers that whistleblowing is important for our transparent democracy, and that whistleblowers must have access to that same crucible of truth that we use for car accidents and criminal defendants — jury trials. The momentum is with us now. We need to maintain our spine and our spirit to bring us to the finish line.