On whistleblower issues, Kerry tops Bush

On a survey rating candidates for their positions on various whistleblower issues, John Kerry received a score of 100 percent from the National Whistleblower Center. The NWC, a nonpartisan, nonprofit organization has posted the results of the survey on its website, at www.whistleblowers.org.

Notably, the website reports no rating for President Bush. The National Whistleblower Center says it sent the survey three times to the Bush campaign; but, campaign spokesman Terry Holt was unable to say if the campaign might respond. (Associated Press ("Kerry wins praise from whistleblowers organization," 7-20) The Center's survey rates candidates on issues such as as protection for doctors or nurses who report patient abuse. The Kerry campaign responded with support for all twelve initiatives listed by the NWC.

The position of the candidates on whistleblower protections is important for voters to know because whistleblower protections are vital to national security and the proper functioning of government programs. The Bush campaign's failure to respond is troubling, but not altogether surprising. As reported previously in Deep Harm, a key White House official, Alberto Gonzales, issued a ruling hostile to whistleblowers while he was a judge in Texas. Perhaps, the Bush campaign feels the appointment of Gonzales as Counsel to the President tells us all we need to know.

Warriors with paper shields

The state of federal whistleblower protections was aptly summarized Tuesday by Robert Landauer, in the Oregonian. ("Government workers need metal shield," 7-27) Landauer challenged both parties in Congress to "replace whistle-blowers' flimsy cardboard flak jackets with sturdy metal shields."

Such a shield would be provided by pending legislation, the Whistleblower Protection Act (WPA) Amendments, passed unanimously by the Senate Government Affairs Committee. A tougher battle reportedly awaits in the House of Representatives, however.

Next week, Congress holds hearings on the 9/11 Commission's recommendations, from which a "Plan B" for intelligence functions will surely evolve. But, even the best plan will fail if implementation suffers from mismanagement or corruption. Here, whistleblowers play a critical role - so critical, that it is pointless for Congress to consider any other changes before shoring up whistleblower protections. Put simply, whistleblowers are to government as referees are to football. Without them, chaos reigns, regardless of rule changes.

In ancient Sparta, where the only acceptable outcome of battle was victory or death, mothers told their warrior sons, "Return with your shield - or on it." In today's America, whistleblowers are forced to do legal battle in the Court of Appeals for the Federal Circuit. There, whistleblowers fight to hold agencies accountable for failing to protect citizens from terrorists, public health threats, waste of taxpayer dollars and other abuses. In 94 out of 95 such battles, the whistleblower returned on his shield. That's a shield of tissue paper, folks. Even the Spartans would have been impressed.

FBI failed to investigate 9/11 whistleblower's claims

In a July 21 letter to members of the Senate Judiciary Committee, FBI Director Robert Mueller acknowledged a finding by the Justice Department's Inspector General that the FBI had failed to adequately investigate the allegations of 9/11 whistleblower Sibel Edmonds.  (See, Whistle-Blowing Said to Be Factor in an F.B.I. Firing, New York Times, 7/29) 

Moreover, the Inspector General concluded, Ms. Edmond's disclosure was "at least a contributing factor" in the FBI's decision to fire her on April 2, 2002.  The former FBI translator had reported sloppiness and neglect in the Bureau's translation of terrorism intelligence materials.

While the Inspector General's conclusions are welcome, it bears noting that they were produced only after considerable pressure from powerful Senators and 9/11 victims groups.  Ms. Edmonds, herself, has been bravely persistent in pursuing investigation of her claims, with the support of people like Daniel Ellsberg, known as the Pentagon Papers whistleblower.

The Justice Department's treatment of Ms. Edmond's disclosures shows, once again, that existing federal laws are a miserable failure in stopping whistleblower reprisal or motivating agencies to investigate reports of dangerous misconduct.  Most disclosures receive even less attention than Ms. Edmond's, because few disclosures have the fortunate timing that draws support from influential citizen groups like those organized by 9/11 victims.

The Justice Department's belated desire to investigate Ms. Edmond's claims shows how critical citizens are to the process of exposing and reforming dangerous incompetence in federal agencies.  Without constant pressure from the victims groups, it is extremely unlikely that an internal investigation would be conducted.  But, agency self-investigations are rarely more than artful coverups; so, more action is needed.

Pending legislation, the Whistleblower Protection Act Amendments, would provide needed citizen oversight for federal whistleblower disclosures by allowing federal workers to have cases decided by juries.  As described in Deep Harm, 7/28, current law unfairly restricts federal whistleblower cases to review by a judge appointed by the same branch of government that includes the defendant agency.

Oddly, the 9/11 victims groups have not publicly campaigned for the WPA reform bill, S.2628/H.R. 3281.  But, they, and all citizens, should be working hard for its passage.  Unlike other proposals resulting from the 9/11 Commission investigations, WPA reform would could begin producing immediate results, making it safe for federal employees to come forward with information that may be crucial to preventing future tragedies. 

Even one whistleblower disclosure potentially could save thousands of American lives.  Isn't that worth the price of a phone call to a Congressional representative?

How Congress should respond to the 9/11 report

It was expected that the 9/11 Commission Report would criticize federal intelligence agencies for failing to accurately assess the dangers of terrorist attack.  But, it was a surprise to some members of Congress that the report criticized them, too - for failing to exert proper oversight.  (See 9/11 Panel Chronicles U.S. Failures, Washington Post, 7-23)

None of that was a surprise to federal whistleblowers.  They know, all too painfully, how rarely anyone holds federal managers accountable for dangerous misconduct.  Complaints to the Office of Special Counsel, the Merit Systems  Protection Board, and Inspectors General are routinely ignored or rejected without meaningful investigation.  Often, the most egregious problems receive the least attention.  It makes no sense; or does it?

Currently, federal whistleblower cases are decided exclusively by judges appointed by the President and other Executive Branch officials.  And, the record shows an unbelievable number of decisions favoring the Executive Branch.  Yet, the 9/11 Commission owes many of its insights to disclosures from federal whistleblowers like FBI employee Colleen Rowley.

It simply is not  credible that only one in 95 cases of agency misconduct brought by whistleblowers before the Court of Appeals for the Federal Circuit had merit. (Figures are from the Government Accountability Project.)  Rather, it appears that judges prefer to dance with them that brung them, regardless of the consequences for the rest of us. As we learned on September 11, 2001, those consequences can be horrendous.

For Congress to exercise better oversight of federal agencies, it will need the help of agency insiders - whistleblowers - who can be their eyes and ears.  But, the environment for most whistleblowers is so hostile that almost no one dares report a problem, even one that threatens national security. 

To get insider cooperation, Congress needs to ensure that (1) whistleblower disclosures are treated seriously and (2) whistleblowers are protected from reprisals.  Congress can achieve both goals by passing the Whistleblower Protection Act Amendments, S. 2628/H.R. 3281.  The proposed law would take whistleblower cases out of the hands of Executive Branch appointees, and put them in the hands of juries - citizens like you and me.

The proposed WPA reforms are consistent with American ideals of due process, checks and balances, and citizen participation.  Continued delay in passing them would send the message to voters that Congress doesn't want real reform of a broken bureaucracy that failed to stop the deaths of innocent thousands.  With copies of the 9/11 Commission report flying off bookstore shelves, such a message could prove painful to many candidates on Election Day. 

Wise legislators will not wait until September, or a new terrorist strike, to vote this critically important bill into law.  And, wise voters will cast their votes for candidates who support our best defense against dangerously incompetent government:  whistleblowers.

Deep Harm weblog resumes publication

After a hiatus for relocation of our office, Deep Harm returns tomorrow to regular publication.