On July 29, 2009 the Senate Committee on Homeland Security and Governmental Affairs unanimously reported out of committee S. 372, the Whistleblower Protection Enhancement Act of 2009.  Unfortunately, this bill contains many significant differences from the House Bill (H.R. 1507), which the National Whistleblowers Center (NWC) fully supports.  

This post is the ninth in a series of twelve, examining specific weaknesses in the Senate Bill. Each installment examines a crucial issue of whistleblower rights compromised by the Senate’s version of the bill.

IX: DUE PROCESS FOR NATIONAL SECURITY WHISTLEBLOWERS?

The national security whistleblower protection sections of S. 372 are a bad joke.  They completely undermine any semblance of whistleblower rights, and ensure that no national security worker will ever prevail in a disputed whistleblower case.  The language set forth in Title II of S. 372 is disheartening, and should be struck from the law without delay.  

Why is it so bad?

First, there is no court access.  

The right to federal court in provided in the House version of the bill and recommended by the GAO does not exist in S. 372.  This not only undercuts essential due process rights, but also creates an atmosphere where the intelligence agency can retaliate against the whistleblower knowing that the employee will never be able to have his or her day in court.

Access to federal court remedies is the single most effective check on any government agency’s propensity to try to silence a whistleblower.  Instead of providing court access, the Senate bill creates an Intelligence Community Whistleblower Protection Board that only purports to be system of review.

The Board is comprised of intelligence agency officials, not administrative judges, and is not subject to the minimum due process requirements of the Administrative Procedures Act.  The Board does not have the authority to hold hearings or interview the whistleblower.  However, the Board is given the authority to determine a whistleblower’s credibility solely on the basis of the recorded created by the agency that retaliated against the employee.  

Second, the Inspectors General are stripped of their responsibility to investigate or remedy a whistleblower retaliation case.  Instead, the power to investigate whistleblower cases is vested directly with the agency that retaliated against the whistleblower in the first place. There is not even a pretext of independence.  If you blow the whistle against the CIA, it is the CIA that will look into your case.  

Third, the due process protections afforded whistleblowers under the current Whistleblower Protection Act do not exist.  Under current law, the Office of Special Counsel investigates whistleblower claims.  Because of abuses within that office, the contents of these investigations remain protected by the Privacy Act.  Only the employee can consent to the release of the findings.  Why?  In the past, a whistleblower would go to the Special Counsel.  The Special Counsel would draft a report critical of the whistleblower. The agency could and would use the report to discredit the whistleblower and would effectively end that employees career.

In 1989 that process was reformed.  The Special Counsel report could only be provided to the employee, who would have the ability to keep the report confidential.  

Not so under the new Senate legislation.  The agency itself will conduct the investigation and issue the report.  The report is not confidential, and can be used to justify further retaliation against the employee.  

Forth, the agency is vested with the power to draw “credibility” determinations against the whistleblower.  Thus, the agency can reach a finding that the employee is not credible.  This finding will not only be used to defeat the whistleblower case, but will be sent over to the security clearance office.  An employee who is found not “credible” will very likely lost their security clearance and with that their reputation and ability to even obtain work in law enforcement or security-related agencies.

Fifth, the adverse credibility determination is not subject to any meaningful appeal. The Board can only reach a ruling on the credibility of a whistleblower based on the record created by the very agency that retaliated against the employee!  The Board is prohibited from even talking to the whistleblower and reaching its own credibility finding.

For example, if the CIA makes a finding that a whistleblower is not credible, and the whistleblower files an appeal of that finding, the Intelligence Community Whistleblower Protection Board is prohibited from taking any testimony from the whistleblower in order to rebut the adverse agency finding.

Sixth, the agencies can introduce secret evidence in a whistleblower case against the employee, and the employee is prohibited from ever learning what that evidence is.  Thus, an employee can lose his or her case based on secret evidence that they are never able to rebut.  

Seventh, the law creates a short sixty-day statute of limitations for filing national security whistleblower claims.  The current Whistleblower Protection Act contains no such statute of limitations.  Such a short filing period will result in many cases being dismissed as untimely filed.  Given the other problems with the law, that may end up being a blessing to most workers, who will not have to incur additional attorney fees simply to have the agency that fired them write a report attacking their credibility!

The bottom line is that the provisions set forth in Title II of S. 372 are anti-whistleblower in nature, and represent a serious setback for all national security whistleblowers.
 

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