ProtectingWhistleblowersDo employees who speak out need better protection?

From prisoner abuse at Abu Ghraib prison to fraud at

Enron, some of the most dramatic revelations of cor-

porate and government wrongdoing have come from

insiders. The Whistleblower Protection Act and other

laws are designed to shield employees who reveal wrongdoing

from retaliation by vengeful bosses. But federal employees who

claim they were harassed after blowing the whistle lose their cases

far more often than they win. They lose so often, in fact, that

some whistleblower advocates urge potential whistleblowers to

become anonymous sources for reporters instead. National-security

employees are in an especially delicate position, because what

they want to disclose may involve secret information. Several

bills now before Congress aim to strengthen protections for

whistleblowers, including those in intelligence agencies.

I

N

S

I

D

E

THE ISSUES ......................267

BACKGROUND ..................274

CHRONOLOGY ..................275

AT ISSUE ..........................281

CURRENT SITUATION ..........282

OUTLOOK ........................283

BIBLIOGRAPHY ..................286

THE NEXT STEP ................287

THISREPORT

Bunnatine H. Greenhouse, a U.S. Army Corps ofEngineers contracts supervisor, was demoted in 2005

after challenging Iraq war contracts awarded to asubsidiary of the Halliburton Co.

CQResearcherPublished by CQ Press, a division of Congressional Quarterly Inc.

www.cqresearcher.com

CQ Researcher • March 31, 2006 • www.cqresearcher.comVolume 16, Number 12 • Pages 265-288

RECIPIENT OF SOCIETY OF PROFESSIONAL JOURNALISTS AWARD FOREXCELLENCE ◆ AMERICAN BAR ASSOCIATION SILVER GAVEL AWARD

266 CQ Researcher

THE ISSUES

267 • Are federal whistleblow-ers adequately protected?• Is the Bush administrationhostile to whistleblowers?• Should civil servants leakinformation to reporters in-stead of whistleblowing?

BACKGROUND

274 Civil War AbusesThe 1863 False Claims Actauthorized fraud suits onthe government’s behalf.

276 Legal ShieldsThe 1978 Civil Service Re-form Act created twowhistleblower agencies.

278 Famous WhistleblowersInsiders’ revelations rockedthe tobacco industry andAir Force in the 1990s.

280 Post-9/11 WhistleblowingGovernment intelligenceofficials were challenged.

CURRENT SITUATION

282 Legislative PotentialSen. Frank Lautenbergproposes protection forspy-agency whistleblowers.

282 Free Speech at WorkThe Supreme Court maylimit whistleblower rights.

OUTLOOK

283 Open Floodgates?Is a wave of whistleblowercomplaints coming?

SIDEBARS AND GRAPHICS

268 Whistleblower Suits Recovered $9.6 BillionMore than 5,100 suits werefiled since 1986.

269 Before You Blow the WhistleWhistleblower advocates offer10 suggestions.

271 Backlog of WhistleblowerCases ReducedThe Office of Special Counselclosed 1,154 cases in 2004.

272 Only Three WhistleblowersWon Their CasesClaims by more than 160employees were rejected.

275 ChronologyKey events since 1967.

276 The Downfall of RichardM. BarlowAn outspoken Pentagon analyst is forced to resign.

278 Critics Question Agency’sCommitmentIs the Office of SpecialCounsel anti-whistleblower?

281 At IssueShould Congress expandwhistleblower rights?

FOR FURTHER RESEARCH

285 For More InformationOrganizations to contact.

286 BibliographySelected sources used.

287 The Next StepAdditional articles.

287 Citing the CQ ResearcherSample bibliography formats.

PROTECTING WHISTLEBLOWERS

Cover: Bunnatine H. Greenhouse, a U.S. Army Corps of Engineers contracts supervisor, wasdemoted in 2005 after challenging Iraq war contracts awarded to a subsidiary of the HalliburtonCo. She is contesting her demotion. (Getty Images/Chip Somodevilla)

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March 31, 2006 267Available online: www.cqresearcher.com

Protecting Whistleblowers

THE ISSUESWhen Sgt. SamuelProvance learnedU.S. forces at AbuGhraib prison near Baghdadwere abusing Iraqi prisoners,he knew he had to do some-thing. But there was pressureto remain silent, he testifiedbefore the House NationalSecurity Subcommittee onFeb. 14, sitting ramrod straightat a gleaming, wooden wit-ness table.

“I was told that the honorof my unit and the Army de-pended on either withhold-ing the truth or outright lies,”he said. 1

Nonetheless, Provanceinformed his superiors, andthen reporters, that MilitaryIntelligence officers had di-rected the abuses — con-trary to official claims thatrogue troops were responsi-ble. In response, the Armyrevoked his security clear-ance and demoted him.

The Defense Department present-ed no witness to contradict Provance’saccount. Nor were other witnesses’allegations of reprisals disputed. Theytold of being harassed, fired or forcedto resign for revealing a number ofnational security foul-ups, includingthe alleged cover-up of early discov-eries concerning the Sept. 11, 2001,terrorists; a botched FBI terrorisminvestigation; foreign infiltration of thetop-secret National Security Agency(NSA) and poor security at U.S. nuclearpower plants.

“We need national-security whistle-blowers to tell us when things go wrong,”said Subcommittee Chairman Christo-pher Shays, R-Conn. “But those withwhom we trust the nation’s secrets aretoo often treated like second-class citi-

zens when it comes to asserting theirrights to speak truth to power.”

In recent years, whistleblowershave exposed wrongdoing or incom-petence hidden behind walls of cor-porate or government secrecy, fromthe financial fraud that led to theEnron collapse to the tobacco indus-try’s lies about the cancer-causing na-ture of cigarettes.

In the process, whistleblowers oftenbecome media heroes. In 2002, FBIagent Colleen Rowley was named oneof Time magazine’s “Persons of theYear” for revealing FBI incompetencebefore the Sept. 11, 2001, terrorist at-tacks. Also named were two corpo-rate whistleblowers — former EnronVice President Sherron Watkins andWorldCom auditor Cynthia Cooper. 2

Today, with the war in Iraqbeginning its fourth year anddebate intensifying over thegovernment’s counterterrorismtactics, national-securitywhistleblowers increasinglyhave come in conflict withgovernment efforts to controlinformation affecting the coun-try’s safety.

“When they go out andtalk to the public about ahighly classified program, theyharm the national security ofthis country,” Attorney Gen-eral Alberto R. Gonzales toldthe Senate Judiciary Commit-tee on Feb. 6.

But whistleblowers andtheir defenders contend thatgovernment officials often usesecrecy rules to stifle politi-cally embarrassing truths.“New whistleblower protec-tions should immediately beestablished for members ofthe executive branch whoreport evidence of wrong-doing — especially where itinvolves . . . the sensitiveareas of national security,”

former Vice President Al Gore said ina January speech. 3

Sen. Frank Lautenberg, D-N.J., hasintroduced a bill to prevent govern-ment officials from claiming secrecywhen whistleblowers try to denouncewrongdoing or prove retaliation. AndRep. Todd R. Platts, R-Pa., and Sen.Daniel Akaka, D-Hawaii, introducedwhistleblower-protection bills last year.The Senate Homeland Security andGovernmental Affairs Committee ap-proved the Akaka bill, and the HouseGovernment Reform Committee OK’dPlatts’ proposal, but neither bill hasmoved to the full Congress.

The bills were introduced againstthe backdrop of high-stakes court bat-tles between whistleblowers and theexecutive branch. Last November the

BY PETER KATEL

Get

ty I

mag

es/L

inda

Spille

rsFormer FBI translator Sibel Edmonds, at her home in

Alexandria, Va., was dismissed by the FBI after exposingalleged wrongdoing and incompetence. The U.S.

Supreme Court refused to hear her case aftergovernment lawyers said they couldn’t argue against

her lawsuit without revealing state secrets.

268 CQ Researcher

U.S. Supreme Court refused to hear anappeal by former FBI translator SibelEdmonds, who claims she was firedfor exposing alleged wrongdoing andincompetence. However, the justicesrefused to hear Edmonds’ appeal aftergovernment lawyers said they couldn’targue against her lawsuit without re-vealing state secrets — an argumentlower court judges had accepted. 4

But the justices have agreed to de-cide whether government employeeshave a constitutionally protected free-speech right to report wrongdoing. Thecase involves a Los Angeles deputydistrict attorney who contends his rightswere violated when he was demotedfor denouncing a search warrant that

contained inaccurate information. Jus-tice Department lawyers have filed abrief in the case, arguing that the FirstAmendment doesn’t cover public em-ployees who speak out in the courseof their jobs. 5

Stephen Kohn, a Washingtonlawyer specializing in representingwhistleblowers, calls the government’sposition “outrageous” and potentiallydisastrous for employees who try toreport wrongdoing.

Even if the court determines the FirstAmendment doesn’t always protect pub-lic employees from reprisals, they stillare shielded by the federal whistle-blower-protection system established byCongress about 30 years ago.

The system for intelligence-commu-nity whistleblowers largely revolvesaround the inspectors general officesattached to — but independent of —the various federal agencies. But in-spectors’ powers are limited. For ex-ample, a report by the Justice Depart-ment’s inspector general concludedthat Edmonds did have legitimategrounds for voicing suspicions abouta colleague’s possible ties to a foreignintelligence service. “Edmonds had hercase reviewed by the FBI, which didnot, and still has not, adequately in-vestigated these allegations,” said theJanuary 2005 report, noting the bureaualso failed to prove that Edmonds’firing was justified. 6 In response, theFBI launched a new investigation ofher allegations. 7

A separate law, the Intelligence Com-munity Whistleblower Protection Actof 1998, allows intelligence-serviceemployees to report wrongdoing of“urgent concern” to Congress. 8 “Exer-cising one’s rights under this act is anappropriate and responsible way tobring questionable practices to the at-tention of those in Congress chargedwith oversight of the intelligence agen-cies,” CIA Director Porter Goss wrotejust before Shays held his hearing. “Andit works.” As House Intelligence Com-mittee chairman in 1998, Goss wasone of the law’s authors.

But intelligence analyst Russell Tice,who was fired by the NSA last yearafter warning that a colleague mightbe a foreign spy, told Shays’ subcom-mittee the agency had barred him fromreporting his concerns to Congress onthe grounds that House and Senate In-telligence Committee members didn’thave the security clearances requiredto hear about certain NSA and DefenseIntelligence Agency operations. But aJan. 9 letter from the agency did tellTice that no members or staff of theIntelligence committees were “clearedto receive the information” concerning“Special Access Programs” that Ticewanted to disclose. The letter added

PROTECTING WHISTLEBLOWERS

Whistleblower Suits Recovered $9.6 Billion

More than 5,100 “qui tam” (whistleblower) suits have been filed against companies allegedly cheating the federal government since the False Claims Act was updated in 1986 to offer more protection and financial incentives to whistleblowers. During the same period, more than $9.6 billion was recovered.

Sources: Taxpayers Against Fraud; Project on Government Oversight

Whistleblower Suits and RecoveriesUnder the False Claims Act

What Is a Qui Tam Suit?

The False Claims Act allows citizens and organizations with evidence of fraud against the government to sue the wrongdoer on behalf of the government. Such actions are known as qui tam, or “whistleblower” lawsuits. Qui tam is part of a longer Latin phrase (qui tam pro domino rege quam pro se ipso in hac parte sequitur) that means “he who brings an action for the king as well as for himself.” The person filing a successful suit receives 15-30 percent of the money recovered.

0

500

1,000

1,500

2,000

0

500

1,000

1,500

$2,000

’05’04’03’02’01’00’99’98’97’96’95’94’93’92’91’90’89’88’87

No. of Qui Tam Suits Money Recovered (in $ millions)

No. of suits filedMoney recovered

March 31, 2006 269Available online: www.cqresearcher.com

that Tice had to inform the DefenseDepartment and NSA of what hewanted to say, and be directed by themhow to deal with the congressionalcommittees.

No one disputes that national-se-curity whistleblowing raises legitimateworries about the country’s safety. Evenformer CIA and Defense Departmentanalyst Richard M. Barlow, whose ca-reer was shattered after he spoke up,says he was troubled by The New YorkTimes’ disclosure of the NSA’s war-rantless electronic spying on U.S. cit-izens. 9 (See sidebar, p. 276.)

“I can understand how White Housepeople are concerned that this stuffended up in The Times,” says Barlow,an expert on Pakistan’s nuclear-armsprogram. “This is not good.”

Barlow conjectures that if NSA em-ployees had had a reliable channel topass information about wrongdoing toCongress — and if lawmakers had beenmore receptive to whistleblowers — therevelations might never have wound upin the headlines. Critics like Barlowpoint to Abu Ghraib whistleblowerProvance as proof that those who stepforward become sitting ducks for pay-back by their superiors.

Still, a Defense official suggestedthat Provance hadn’t taken full advan-tage of the whistleblower-protectionsystem. Under questioning by Shays,Jane Deese, director of military-reprisalinvestigations for the Pentagon’s in-spector general, called Provance’s ac-count “disturbing” but added that hehad never filed a complaint.

After the hearing, one of Provance’slawyers, Deborah Pearlstein of HumanRights First, said Provance had likely con-cluded on the basis of what he’d alreadysuffered that he would worsen his situ-ation by filing a retaliation complaint.

Asked by Rep. Henry Waxman, D-Calif., how his superiors had reacted tohis accounts of detainee abuse, Provancesaid their responses made clear that“anything that I had to say was justgoing to be avoided or ignored.”

Trained as an intelligence andcomputer expert, Provance says thatsince being demoted from sergeantto specialist he has been relegated to“picking up trash and guard duty andthings of that nature.”

As the fight over whistleblowerprotection heats up again, here aresome of the leading issues in debate:

Are federal whistleblowers ade-quately protected?

Whistleblower expert Kohn sayssome 40 laws protect federal whistle-blowers — at least in theory. Theyinclude a little-known 2002 statutethat makes job retaliation a crimewhen directed at someone who pro-vided truthful information about the

“commission or possible commission”of a federal crime. 10

“That is an extremely powerful tool,”says Kohn, who has written five bookson whistleblowing. “It prohibits the gag-ging of federal employees, even thoseinvolved in highly sensitive national-security issues. They can go to federallaw enforcement under this law.” Kohnsays the law has not been used much,but he expects lawyers to begin in-voking it in whistleblower cases.

Dozens of states have enacted lawsproviding varying degrees of protectionto government whistleblowers. In thefederal system, the extent of protectionvaries by agency. For instance, employ-ees who work in fields affecting publichealth and safety, such as nuclear power,

Before You Blow the Whistle . . .

Employees should consider the following checklist before becoming whistleblowers, according to three whistleblower advocacy groups.

Sources: “The Art of Anonymous Activism: Serving the Public While Surviving Public Service”; Project on Government Oversight, Government Accountability Project, Public Employees for Environmental Responsibility

1. Consult your loved ones — This is a family decision, and you want to have your spouse, family and/or close friends on your side.

2. Check for skeletons in your closet — Is there a peccadillo or something in your past that could be used against you?

3. Document, document, document — Keep records of important documents; your access to agency documents might be denied after whistling.

4. Do not use government resources — Do not use agency resources, such as phones and fax machines, when engaging in whistleblowing.

5. Check to see who will support your account — If you can’t count on co-workers or others to defend your case, consider waiting.

6. Consult an attorney early — Seek legal advice before you intervene.

7. Choose your battles — Don’t fight personnel issues, because the advantage is with the employer, not the employee.

8. Identify allies — Share your knowledge with others at the agency that might have interest in your evidence.

9. Have a plan — Create a step-by-step action plan, including how the agency will respond and how you will counter its response.

10. Get career counseling — Consider where your actions will leave you in a year, two years, five years.

270 CQ Researcher

aviation, trucking and en-vironmental protection,can take complaints of re-taliation directly to theLabor Department and,depending on the re-sponse, directly to feder-al District Court.

Those employees andmost other federal em-ployees — except na-tional-security workers —fall under the Office ofSpecial Counsel (OSC)and the Merit SystemsProtection Board (MSPB).Whistleblowers can takecases of alleged seriousretaliation — such as fir-ing or suspension — tothe board. Complaints oftransfers, blocked pro-motions and the like canbe reported to the OSCif the alleged reason wasretaliation or another pro-hibited practice. If theOSC doesn’t act within120 days, employees canbring their cases to theMSPB. The OSC can alsoconduct preliminary dis-closures of serious mis-conduct in agencies andrequire full-scale investi-gations by the agenciesthemselves if the allegations seem tobe well-founded.

If the OSC concludes an employeehas been improperly treated, it canask the MSPB to postpone the per-sonnel action about to be takenagainst the worker. But if the MSPBrejects that request, the OSC cannotappeal that decision. 11 The Court ofAppeals for the Federal Circuit, createdin 1982, has exclusive jurisdiction overappeals of board decisions.

But Kohn and other experts advisewhistleblowers to sue in federal Dis-trict Court — alleging violations of theirFirst Amendment free-speech rights, for

example — rather than going to theMSPB and the OSC. “If you enter thatbox, you will get a ruling from some-body that says you are not a real whistle-blower, which undermines your abili-ty to go to Congress and the press andget your issues addressed,” he says.

For instance, of the 120 FederalCircuit rulings on the merits ofwhistleblower appeals between 1994and 2005, only one went in favor ofthe employee, according to ThomasDevine, legal director of the Govern-ment Accountability Project. And ofthe 52 whistleblowers that took theircases to the MSPB from 1999 to March

13, 2006, only two pre-vailed, Devine says. 12

Board General CounselMartha Schneider does notdispute the figures. Butshe says the board workswithin limits set by the Fed-eral Circuit and the 1987Whistleblower ProtectionAct (WPA). The court seta key precedent in 1999when it ruled that in orderfor whistleblowers to sus-tain their cases, a “disin-terested observer” wouldhave to agree that mis-conduct had occurred. “TheWPA is not a weapon inarguments over policy ora shield for insubordinateconduct,” the court said. 13

Since that ruling, a singlewitness on behalf of agovernment agency hasbeen enough to knockdown employees’ cases.

And, Schneider says, theWPA statute itself is “fair-ly narrow” in its definitionof the kinds of activitiesthat whistleblowers get pro-tected for reporting — aviolation of law, regulationor gross mismanagement;gross waste of funds; abuseof authority; or a “sub-

stantial and specific danger” to pub-lic health or safety. Given those lim-its, Schneider says, it is “harder forwhistleblowers to prevail.”

In reality, some whistleblower ad-vocates say, the board has long beenhostile to employees who appear be-fore it. In 1994, the House Committeeon Post Office and Civil Service re-ported that it had heard “extensive tes-timony at hearings that the MSPB andthe Federal Circuit have lost credibili-ty with the practicing bar for civil ser-vice cases.” 14

Devine says members of the three-member board are traditionally “minor-

PROTECTING WHISTLEBLOWERS

Time tapped three whistleblowers as its “Persons of the Year” in2002: auditor Cynthia Cooper, who revealed phony accounting

practices at WorldCom; FBI agent Colleen Rowley, whodocumented bureau failure to follow-up leads before the

9/11 terrorist attacks; and Enron Vice President Sherron Watkins, who warned about massive financial

irregularities at the now bankrupt firm.

Tim

e, I

nc.

March 31, 2006 271Available online: www.cqresearcher.com

league political appointees who knowthey won’t rise up the political foodchain by helping people who chal-lenge abuses of power by the presi-dent or his political appointees.” BoardChairman Neil A. G. McPhie, a formerVirginia senior assistant state attorneygeneral, did not respond to a requestfor comment.

Whistleblower advocates direct evenharsher criticism at the Office of Spe-cial Counsel, headed by Bush ap-pointee Scott J. Bloch. Bloch drawscriticism for both his handling ofwhistleblowers and personnel issuesin his own agency. A complaint filedagainst Bloch by whistleblower advo-cacy groups and others charges he is-sued an illegal gag order, transferredemployees he considered disloyal anddisposed of cases often without in-terviewing the employees who filedthe complaints. (See sidebar, p. 278.)

Is the Bush administration hos-tile to whistleblowers?

No contemporary president has gen-erated much enthusiasm among whistle-blower advocates.

“Every administration’s Justice De-partment has objected to every whistle-blower bill since the [1978] Civil ServiceReform Act,” a Democratic congression-al aide says, asking not to be named.“They have an institutional bias, becausethey would always be defending anagency against a whistleblower. So anybill that helps a whistleblower meansthey might lose cases.”

Indeed, in an April 12, 2005, letterto Congress on Akaka’s proposed bill,Assistant Attorney General William E.Moschella cited strong opposition bythe Clinton administration in 1998 toa proposal to extend whistleblowerprotection to employees whose re-ports of alleged wrongdoing includedclassified information.

Even so, President Bush stands outfor his insistence on controlling gov-ernment information, say whistlebloweradvocates. “The Bush administration is

much more aggressive in regard towhistleblowers [in its] secrecy policies,which creates more possibilities for re-taliation and creates a chilling effect,”says Beth Daley, an investigator withthe Washington-based Project on Gov-ernment Oversight. 15

The administration has created anew category of “sensitive but unclas-sified” information that agencies areprohibited from disclosing — though adefinition of the category has yet to behammered out. So far, prohibited datainclude information on shipments ofhazardous materials, injury rates amongworkers at the Portland, Ore., airportand plans for a liquefied natural gaspower plant on Long Island Sound.

Bush has ordered National Securi-ty Director John D. Negroponte tocome up with a governmentwide de-finition of “sensitive but unclassified”information in order to enhance in-formation sharing “amongst those en-tities responsible for protecting ourcommunities from future attack,” saidNegroponte spokesman Carl Kropf. 16

Negroponte’s office declined to dis-cuss the effect of the classification onnational-security whistleblowers.

Taken alone, a new category ofclassified information might not soundalarming in post-9/11 America. But thepolicy worries the whistleblower-pro-tection network, particularly in viewof other recent efforts by the federalgovernment to either withhold infor-mation from the public or retaliateagainst those who reveal irregularities.

For instance, the government hassecretly reclassified more than 55,000intelligence and diplomatic documentsin the National Archives that had beenpublicly available for years, some dat-ing back to the Korean War. The re-classification began under PresidentClinton in 1999, when the CIA andother agencies objected to the un-sealing of what they considered secretinformation following a 1995 presi-dential declassification order. The re-classification intensified under Bush. 17

After disclosure of the program prompt-ed outrage from historians, Allen Wein-stein, director of the National Archives,announced a halt, pending talks with thespy and military agencies. He also askedthe agencies to do their best to restoreto public access as many of the newlyreclassified files as possible. 18

Backlog of Whistleblower Cases Reduced

In an effort to clear out its large backlog of whistleblower cases, the Office of Special Counsel (OSC) closed nearly three times as many cases in 2004 as it did in 2003. Only eight of the 18 cases alleging government fraud, mismanagement or abuse were substantiated in 2004. In 2005, however, despite a caseload half as large, twice as many cases were substantiated.

Source: Office of Special Counsel, fiscal 2007 Congressional Budget Justification and Performance Budget Goals

OSC Disposition of Whistleblower Disclosures

FY2003 FY2004 FY2005

Total cases pending 1,091 1,262 583

Referred to agency for investigation 11 18 19

Substantiated by agency 13 8 16

Processed and closed 401 1,154 473

272 CQ Researcher

In 2005 the U.S. Army Corps of En-gineers demoted Bunnatine H. Green-house, a contracts supervisor who chal-lenged Corps contract awards to KelloggBrown & Root — a subsidiary of Hal-liburton (formerly headed by Vice Pres-ident Dick Cheney), which received morethan $10 billion in contracts for work inIraq. The Corps said it was not retaliat-ing against Greenhouse, but her lawyerargued that was the only explanation,given her stellar track record before theHalliburton issues arose. 19 Greenhouse’schallenge of her demotion is pending.

Medicare actuary Richard Foster wasthreatened with dismissal in 2003 if hetold Congress that a prescription-drugreimbursement plan (since enacted)would cost $100 billion more than ad-

ministration officials had claimed. Theinspector general of the Health andHuman Services Department (HHS) laterconcluded that Foster’s boss did not actillegally because Foster had no inde-pendent right to inform Congress. 20

HHS’ position reflected a May 21, 2004,memo to the department from then-As-sistant Attorney General Jack L. Gold-smith, who concluded that governmentofficials’ powers include control of whatinformation Congress gets to see. “Ex-ecutive privilege,” he wrote, referring tothe doctrine of presidential secrecy, “ap-plies governmentwide, and is not limit-ed to presidential decision making. . . .Presidents George [H.W.] Bush, Bill Clin-ton and George W. Bush each assertedexecutive privilege against congressional

committees to protect intra-agency de-liberative materials prepared for seniorofficers in executive departments.” 21

Goldsmith was disputing a Con-gressional Research Service (CRS)memo declaring that Congress’ rightto information trumps any gag orderson employees. “Congress has a clearright and recognized prerogative . . .to receive from officers and employ-ees of the agencies and departmentsof the United States accurate and truth-ful information regarding the federalprograms and policies,” wrote JackMaskell, a CRS legislative attorney. 22

In 2004 U.S. Park Police ChiefTeresa Chambers was fired after tellingreporters that her officers were unableto patrol Washington-area parks be-cause of a new policy that they main-tain a bigger presence at nationalmonuments. A Merit Systems Protec-tion Board judge upheld the dismissal,saying she had broken the chain ofcommand by going public. 23

Jeff Ruch, executive director ofPublic Employees for EnvironmentalResponsibility, said the Chambers casecast an especially big shadow becausethe police chief didn’t see herself asa whistleblower but as the agency’sspokesperson. “Now the line betweenwhistleblowing and simply telling thetruth is increasingly blurred,” Ruch says.“A lot of times, the people we workwith don’t realize they’re whistleblow-ing by being inconveniently candid.”

Consciously or not, however, theemployees are colliding with the Bushadministration doctrine that high-rankingofficials — not their subordinates —decide what information to release. A“fundamental principle” of presidentialauthority, Goldsmith wrote in his memoon the Medicare matter, is that “his sub-ordinates must be free from certain typesof interference from the coordinatebranches of government.” 24

Whistleblower advocates argue thatwith both the executive branch and Con-gress controlled by Republicans, the nor-mal checks and balances — specifically

PROTECTING WHISTLEBLOWERS

Only Three Whistleblowers Won Their Cases

Only three out of 172 employees in recent years won their cases after claiming employers retaliated against them for revealing problems. Under the 1999 Whistleblower Protection Act, retaliation claims can be filed with either the Merit Systems Protection Board or the Court of Appeals for the Federal Circuit.

Source: Government Accountability Project , March 2006

Status of Whistleblowers’ Retaliation Claims

Rulings of Merit Systems Protection Board(From June 1999 to March 13, 2006)

0 20 40 60 80 100 120

0 20 40 60 80 100 120

In favor ofwhistleblower

Againstwhistleblower

2

50

1

119

In favor ofwhistleblower

Againstwhistleblower

Rulings of Court of Appeals for the Federal Circuit(From 1994 through March 2006)

March 31, 2006 273Available online: www.cqresearcher.com

congressional over-sight — do not exist.“The Republicans arenot going to do anyoversight of them-selves,” says Kris J.Kolesnik, who helpeddraft the 1989 Whistle-blower Protection Act(WPA) as an aide toSen. Charles Grassley,R-Iowa. Kolesnik, alsoa Republican, is nowexecutive director ofthe National Whistle-blower Center.

Administration of-ficials say they sup-port whistleblower-shield systems. LastApril, as the admin-istration preparedto establish a newpersonnel system for civilians at thePentagon — the National Security Per-sonnel System (NSPS) — then-NavySecretary Gordon England (nowdeputy secretary of Defense) told theSenate Armed Services Committeethat the new system “will not removewhistleblowing protections.”

But an official of the American Fed-eration of Government Employees,which opposes the system, says theNSPS would wreck whatever protec-tions exist. Mark Roth, the union’s gen-eral counsel, points to an appeal sys-tem in which the Merit SystemsProtection Board would be able tooverturn a boss’ personnel action onlyif it were found “totally unwarranted,”which would mean that any infractionby an employee would be enough tosustain a demotion or disciplinary move.

On Feb. 27, U. S. District Judge EmmetG. Sullivan accepted the union’s argu-ments in barring the Pentagon fromputting most of the NSPS into opera-tion. “The appeals system is the an-tithesis of fairness,” the judge wrote. 25

England said he expected his depart-ment to appeal the ruling. 26

Should civil servants anonymouslyleak information to reporters in-stead of becoming whistleblowers?

The firings and demotions experi-enced by some government whistle-blowers discourage others from goingthrough official channels to revealwrongdoing. Instead, some insidersprotect their jobs by leaking informa-tion anonymously to the press.

The consequences of whistle-blowing can be even more seriousfor workers at intelligence agencies,where both law and workplace cul-ture demand observance of secrecyrules. At the least, their security clear-ances can be revoked — effective-ly ending their careers. In some cases,they can be prosecuted for reveal-ing state secrets. Thus, it was notsurprising that the recent press re-ports about warrantless NSA domesticspying were based on anonymoussources.

“All reporters know that the verybest stories — the most important,the most sensitive — rely on them,”wrote reporter James Risen, who brokethe domestic-spying story in the Times

and authored a newbook about the intelli-gence community andthe war in Iraq. Withoutinformation from “cur-rent and former officialsfrom the Bush adminis-tration, the intelligencecommunity and otherparts of the government,”the book couldn’t havebeen written. 27

But CIA DirectorGoss has little tolerancefor leakers. “Those whochoose to bypass thelaw and go straight tothe press are not noble,honorable or patriotic,”Goss wrote. “Nor arethey whistleblowers. In-stead, they are commit-ting a criminal act that

potentially places American lives atrisk.” 28

Goss told a Senate Intelligence Com-mittee hearing in February that re-porters writing stories based on NSAleaks should be hauled before a grandjury and “asked to reveal who is leak-ing this information.” 29 In fact, theBush administration has instigated acriminal investigation that could endin just that. 30

Rather than leak to the press, FBIwhistleblower Rowley worked withinthe system, sending a 13-page letterto FBI Director Robert S. Mueller IIIand copies to two members of theJoint Intelligence Committee.

Nevertheless, Rowley acknowledgesthat exceptional circumstances justifyextraordinary measures, citing the no-torious 1968 massacre of Vietnamesecivilians at My Lai by U.S. troops andFBI Assistant Director Mark Felt’s leaks— as “Deep Throat” — to The Wash-ington Post during the Watergate scan-dal. “When your bosses are destroy-ing evidence and outright lying —then, yes, you actually have to go out-side the chain of command.” (Rowley

Tobacco industry whistleblower Jeffrey Wigand, right, who revealedthat Brown & Williamson officials knew cigarettes caused cancer,

joins New York City Mayor Michael Bloomberg as he announces his Smoke-Free Air Act on Oct. 9, 2002.

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retired from the FBI and is runningas a Democrat for a U.S. House seatin Minnesota.)

Still, given the potential risks of whistle-blowing, some whistleblower advocatesencourage employees to leak informa-tion about misdeeds. “We talk peopleout of blowing the whistle, says Ruchof Public Employees for EnvironmentalResponsibility (PEER). If you think aboutit, if an agency is forced to confront theissue directly and can’t blame it on adisgruntled employee, that’s very goodterrain to be on.”

“The Art of Anonymous Activism,”published by the Project on Govern-ment Oversight (POGO), the Govern-ment Accountability Project and PEER,advises employees on how to leak in-formation. “Throwing away your en-tire career, particularly if there areother ways to ventilate the problem,is imprudent and counterproductive,”the booklet argues.

But lawyer Kohn argues that evenanonymous leakers can endanger theircareers. For one thing, he says, whilebosses and co-workers usually can fig-ure out an anonymous source’s iden-tity, a leaker who suffers retaliationmight not be able to prove that hisboss has identified him.

But Rep. Shays responds thatwhen whistleblowers follow the offi-cial chain of command it often leadsto a dead end: “Leaks happen be-cause whistleblowers are not gettingheard.”

Administration officials show littlesympathy for that argument — or forleakers. Attorney General Gonzales toldthe Senate Judiciary Committee on Feb.6 the Intelligence Community Whistle-blower Protection Act protects em-ployees wanting to report misconduct.“The danger or problem of going tothe media as an initial matter is thatyou have some people . . . whosemotivation . . . can be questioned interms of why are they doing that,”Gonzales said.

BACKGROUNDCivil War Abuses

W hen Civil War contractors werediscovered selling the UnionArmy gunpowder cut with sawdustand other shoddy supplies, Congressauthorized civil servants and citizensto sue cheaters on the government’sbehalf and share any money recov-ered with the government. 31

Although the 1863 False Claims Actwas groundbreaking legislation, it onlydealt with whistleblowers reportingabuses by private contractors. It didnot address insider accounts aboutpublic servants. President TheodoreRoosevelt set the stage for such leg-islation when he barred employeesin 1902 from contacting Congress ontheir own. 32

The dispute over lawmakers’ ac-cess to direct information from theexecutive branch agencies simmeredthrough 1912, when Congress passedthe Lloyd-Lafollette Act, which pro-hibited the firing of employees whocontacted Congress. 33

The early laws provided the onlylegal backing to civil servants report-ing improper conduct until Congresstook a comprehensive look at whistle-blowing in 1978.

In 1972, journalist-historian TaylorBranch defined whistleblowers as po-litical descendants of the turn-of-the-century journalistic crusaders knownas muckrakers, who specialized in ex-posing corporate and government cor-ruption. 34

Muckraking’s heyday had faded bythe time insiders began blowing thewhistle on government and corporatemisdeeds during the government-re-form movement of the 1960s. RalphNader, an advocate of corporate ac-countability and government trans-

parency, immediately saw whistle-blowers’ value in arousing the pub-lic as well as politicians.

On Jan. 30, 1971, Nader organizeda Conference on Professional Re-sponsibility, which kicked off a cam-paign for legislation encouraging em-ployees to tell Congress aboutgovernment misdeeds while protect-ing them from retaliation. “The will-ingness and ability of insiders to blowthe whistle is the last line of defenseordinary citizens have against the de-nial of their rights and the destructionof their interests by secretive and pow-erful institutions,” Nader wrote. 35

Nader and his allies had been in-spired by four young staffers for Sen.Thomas J. Dodd, D-Conn., the fatherof today’s Sen. Christopher J. Dodd,D-Conn. In 1965, they gave inves-tigative reporter Jack Anderson copiesof documents from Dodd’s files thatindicated he was pocketing campaigncontributions. Anderson’s articles ledto Dodd’s 1967 censure by the Sen-ate for misusing political funds. 36

Dodd’s downfall notwithstanding,most government whistleblowing hasbeen centered on the executive branch.In 1968, shortly after the Dodd ex-posé, a civilian Air Force financial an-alyst, A. Ernest Fitzgerald, told a con-gressional subcommittee that the costof developing the C-5A transport planewas $2 billion over budget. Fitzgeraldwas forced out of his job but chal-lenged his ouster in court and was re-instated in 1982.

In 1987, Fitzgerald made newsagain when he forced the Reaganadministration to back down from re-quiring employees to take a secrecypledge aimed at keeping governmentinformation out of the hands of Con-gress and the press. 37

Fitzgerald’s stand against wastefulmilitary spending became a nation-al news story, but he remained aninside-the-Beltway Washington fig-ure. Defense analyst Daniel Ellsberg,

PROTECTING WHISTLEBLOWERS

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Chronology1960s-1970sWhistleblowers reveal govern-ment misdeeds during VietnamWar and Watergate scandal.

1968Pentagon fires A. Ernest Fitzgeraldfor revealing cost overruns in de-veloping the C-5A transport plane.He was reinstated in 1982.

1971Consumer advocate Ralph Naderlaunches drive for whistleblower-protection laws.

1973Prosecutors drop charges againstformer Pentagon analyst DanielEllsberg for leaking the “PentagonPapers” to The New York Times.

1978Congress passes first, comprehen-sive whistleblower legislation, theCivil Service Reform Act.

•

1980s Congressstrengthens the new statute.

1984Merit Systems Protection Board findsmost employees are still fearful ofreporting wrongdoing.

1987Congress passes WhistleblowerProtection Act (WPA), but Republi-can President Ronald Reagan ve-toes it the next year, claiming itwould be a vehicle for the merelydisgruntled.

1989President George H.W. Bush signsa toned-down version of the WPA.

1990s New generationof whistleblowers makes sensa-tional disclosures of corporateand government wrongdoing.

1992Congress halts mental health examsfor military whistleblowers and re-stores cash awards to whistleblowerswho save the government money.

1993Democratic Vice President Al Goreencourages whistleblowers as partof the Clinton administration’s“Reinventing Government” effort.

1994Congress strengthens WPA, allowingwhistleblowers to challenge agencydecisions to alter their working con-ditions or order them to undergopsychiatric testing.

1995Former tobacco-industry scientistJeffrey Wigand reveals the cover-upof smoking hazards by Brown &Williamson Tobacco Co.

1996Aircraft maker McDonnell-Douglaspays fines for accounting fraud re-vealed by whistleblowers.

1997Internal Revenue Service auditorJennifer Long tells Congress the IRStargets lower-income taxpayersseen as easy targets. . . . On Oct.24, a federal District judge inHouston rules the False Claims Actis unconstitutional; Supreme Courtlater overturns the decision.

1998FBI agrees to pay large settlementto former crime laboratory officialFrederic Whitehurst, who revealedmanipulation of FBI lab results.

2000s National-securitywhistleblowers face retaliation.

2002FBI agent Colleen Rowley revealsFBI’s pre-9/11 incompetence.

2003Medicare actuary Richard Foster isthreatened with dismissal afterthreatening to tell Congress theBush administration is low-ballingcost estimates for its prescription-drug reimbursement plan.

2004Army Sgt. Samuel A. Provance is re-duced in rank after revealing abusesat Abu Ghraib prison in Iraq.

March 2005Bills introduced by Sen. DanielAkaka, D-Hawaii, and Rep. ToddR. Platts, R-Pa., would close loop-holes in the whistleblower law.

Aug. 28, 2005Army Corps of Engineers demotescontract specialist Bunnatine H.Greenhouse after she complains ofirregularities in Iraq war contracts.

Nov. 28. 2005U.S. Supreme Court refuses tohear appeal by FBI whistleblowerSibel Edmonds.

Feb. 14, 2006Sen. Frank R. Lautenberg, D-N.J., in-troduces bill aimed at shielding na-tional-security whistleblowers. . . .House National Security Subcommit-tee holds hearings on whistleblowers.

Feb. 17, 2006Supreme Court calls for reargumentin case of Los Angeles prosecutorRichard Ceballos, who was demotedafter revealing that a warrant con-tained false information.

276 CQ Researcher

on the other hand, achieved inter-national fame in 1971 for leaking thesecret Defense Department historyof the Vietnam War known as the“Pentagon Papers.” Ellsberg was ar-rested weeks after The New YorkTimes began publishing the long ac-count, but charges that he had vio-lated the Espionage Act were droppedafter government agents illegallytapped his phone. 38

Legal Shields

T he men who monitored Ellsberg’scalls — and also broke into his psy-chiatrist’s office in search of damaging in-formation — became infamous when theywere caught breaking into the Democ-ratic National Committee’s offices at theWatergate Hotel. 39 The resulting cover-up and Watergate scandal led to Presi-dent Richard M. Nixon’s resignation. 40

After Watergate, lawmakers and thepublic viewed administration officialsbent on secrecy as villains and whistle-blowers as heroes. In 1978, Congressresponded to the popular mood byincluding whistleblower-protectionmeasures in the Civil Service ReformAct. “These conscientious civil ser-vants deserve statutory protectionrather than bureaucratic harassmentand intimidation,” said a Senate re-port on the legislation. The law cre-

PROTECTING WHISTLEBLOWERS

Continued from p. 274

Praise for his skills, friends in high places and four yearsof high-level national-security work — Richard M. Bar-low can claim it all. What he lacks is a career.Barlow was forced out of his job at the Defense Department

in 1989. He’s been trying to get it back ever since — alongwith his pension — with help from powerful supporters.

“As a message to whistleblowers, Rich’s case is chilling,”says former Assistant Secretary of State Robert Gallucci, deanof Georgetown University’s School of Foreign Service, who istrying to persuade Congress to restore Barlow’s retirement pay.

Barlow’s adversaries tended to criticize him for being too rigid— and not a team player. His supporters said he was honest —and accurate — to a fault. Indeed, Victor Rostow, a former di-rector of negotiations policy at the Pentagon, said Barlow’s views“may have been absolutely right, but in the atmosphere of thecreation of policy, being absolutely right is sometimes a hin-drance. . . . There’s a point at which you have to back off.” 1

Barlow’s downfall began in 1987 at a closed-door briefingfor the House Subcommittee on South Asian Affairs on Pak-istan’s nuclear weapons program. Barlow, then a brash, youngCIA specialist, had the temerity to contradict testimony by Gen.David Einsel, a top National Intelligence Council official.

At the time, the Reagan administration wanted to keep aidflowing to Pakistan, which had been helping the United Statesoppose the Soviet Union’s takeover in Afghanistan. But afterthe outlines of Pakistan’s nuclear program surfaced, Congresshad imposed two conditions on aid: The president was forcedto certify that Pakistan wasn’t building a nuclear weapon. Andno aid could go to any country that was illegally obtainingU.S. materials of any kind to build a nuke. 2

Years later, after Barlow sued to get his job back, a Courtof Claims judge conceded, “We can safely assume that Gener-al Einsel’s testimony was materially incorrect.” 3

Yet, abrasiveness aside, Barlow had delivered his testimonyunder orders from his bosses at the CIA, which months laterawarded him a “certificate for exceptional accomplishment.”Nonetheless, the episode effectively ended Barlow’s agency ca-

reer, and he quit and joined the Defense Department as a pro-liferation specialist in 1989.

Again, he clashed with a superior over Pakistan, this timeafter learning the CIA was still misinforming Congress aboutPakistan’s nuclear weapons in order not to jeopardize the $1.4billion sale of F-16 fighters by the U.S. to Pakistan. Barlow hadreported to his bosses that the planes were being modified tocarry nuclear weapons. Told he’d be fired, Barlow quit. 4

Over the years, as more details surfaced about Pakistan’sweapons program — including black-market sales of nuclear tech-nology by A. Q. Khan, then the director of Pakistan’s nuclearweapons program, — Barlow’s accuracy was confirmed. 5 But theDefense Department refused to rescind its actions against him,even when a General Accounting Office (now the GovernmentAccountability Office) report called the Pentagon’s case againstBarlow legally unsupported. The 1997 report noted that even thePentagon did not accept an account by Barlow’s boss, GeraldBrubaker, that Barlow had threatened to contact Congress overthe matter on his own. 6

By 1998, it was clear that even Barlow’s influential lawyer,former Assistant Defense Secretary Paul C. Warnke, had failed.Although Warnke had persuaded congressional leaders fromboth sides of the aisle to pressure the Pentagon to rescind itspersonnel actions, it wouldn’t budge. 7 Then, Sen. Jeff Binga-man, D-N.M., introduced a “private relief bill” to obtain for Bar-low the equivalent of the $1.1 million retirement pay he hadforfeited when he was forced out of government. 8

The bill never got out of committee. Instead, the Senate in1998 sent Barlow’s case to the U.S. Court of Claims, which des-ignates a judge to act as a hearing officer for Congress. 9 Fouryears later, Senior Judge Eric G. Bruggink concluded that De-fense had acted within the law. In doing so, he accepted an ac-count that Barlow had threatened to contact Congress about Pak-istan’s nuclear weapons on his own — a conclusion previouslyrejected by the Defense Department itself. “Mr. Barlow was aprobationary employee who was terminated because of perfor-mance deficiencies and personality conflicts,” Bruggink wrote. 10

The Downfall of Richard M. Barlow

March 31, 2006 277Available online: www.cqresearcher.com

ated the Merit Systems ProtectionBoard (MSPB) and the Office of Spe-cial Counsel (OSC) to prosecute pro-hibited personnel practices, such asreprisals against whistleblowers.

But the protection process wascomplicated and fraught with limita-tions, and few employees used it.Fear of reprisals grew stronger dur-ing the early years of the Reagan ad-ministration. Indeed, the percentageof employees keeping quiet about

official misconduct doubled between1980 and 1983, according to anMSPB study. 41

Acknowledging that reality, Con-gress passed the Whistleblower Pro-tection Act of 1987, which would haveauthorized the OSC to appeal MSPBdecisions in federal court and madeit easier for whistleblowers to claimthey were victims of retaliation. ButPresident Reagan pocket-vetoed thebill in 1988, calling it a way for un-

deserving employees to avoid firing,demotion or other action.

The following year, Congress passedand President George H.W. Bush signeda toned-down version of the bill —with the OSC’s appeal power removed.

But even the new legal protectionsproved less than solid. A 1994 MSPBsurvey found retaliation on the up-swing, with 37 percent of respondentssaying they had suffered retaliation forexercising their rights — including re-

Bruggink’s decision ignited a de-layed behind-the-scenes dispute cen-tering on the decision to bow to thegovernment’s wishes on excludingevidence. Aides to Sens. Susan Collins,R-Maine, chairwoman of the SenateHomeland Security and GovernmentalAffairs Committee, and Joseph I.Lieberman of Connecticut, the com-mittee’s ranking Democrat, told Bar-low that Bruggink’s report was thelast word. But the staffers agreed tomeet with Gallucci, Joseph Ostoyich,who took over the case from Warnke,and Louis Fisher, then a senior spe-cialist in separation of powers at theCongressional Research Service. 11

Fisher argued that Bruggink had notbeen obliged simply to accept the se-crecy claim but could have reviewed documents and admittedsome of them or sent the case back to the Senate because fullevidence was unavailable. As it was, Fisher wrote, the court al-lowed the government to introduce the evidence it wanted, whiledenying Barlow the same right. 12 “My pitch was that the courtdidn’t do what it was supposed to do to get at the facts,” Fishersays. “The record is pretty clear that the court failed in its duty.”

Barlow, for his part, faults congressional lawmakers. “Youcan hardly blame the executive branch for pushing its powerand authority as far as Congress lets them push it,” he says.“We’re dealing with a Congress that’s not been engaging inany checks and balances or oversight — giving the signal thatthe executive can do whatever it wants.”

As for the misinformation about Pakistan’s nuclearweapons that Congress received, “There is something to theidea that Congress sort of half-wanted to be misled in the’80s,” Gallucci says. “People like Rich were going to forcethem to look at it in the eye. He really did get screwed.”

1 Rostow testified at a 2002 hearing before aCourt of Claims judge.2 For background on Pakistan’s nuclear armsprogram, see Douglas Frantz, “From Patriot toProliferator,” Los Angeles Times, Sept. 23, 2005;Richard Weintraub, “Pakistan Faces Woes FromWithin, Without; Nuclear Question Threatens Tiesto the U.S.,” The Washington Post, July 28, 1987,p. A10, and Richard Weintraub “Pakistan DeniesConnection to any Nuclear-Export Plot,” TheWashington Post, July 22, 1987, p. A1.3 See 53 Fed. Cl. 667, 2002 Court of Claims, pp.4-5; a fuller account of the episode and of itsconsequences can be found in Seymour Hersh,“On the Nuclear Edge,” The New Yorker, March29, 1993, www.newyorker.com/printables/archive/040119fr_archive02.4 General Accounting Office [now, GovernmentAccountability Office], “Inspectors General: JointInvestigation of Personnel Actions Regarding aFormer Defense Employee,” July 10, 1997, pp.2-3.5 For background, see Mary H. Cooper, “NuclearProliferation and Terrorism,” CQ Researcher, April2, 2004, pp. 297-320.

6 General Accounting Office, op. cit.7 Warnke, who died in 2001, was also a former director of the Arms Con-trol and Disarmament Agency. Barlow provided to CQ Researcher a file ofcorrespondence between Senate Armed Services Committee Chairman StromThurmond, R-S.C., other lawmakers, and Defense officials.8 105th Congress, 2d Session, S. 2274, “For the relief of Richard M. Barlowof Santa Fe, N.M.,” July 8, 1998; press release, “Bingaman Seeks Compen-sation for Pentagon Whistleblower,” Office of Sen. Bingaman, July 8, 1998.Barlow spent most of the 1990s working under a consulting contract withSandia National Laboratories in New Mexico.9 Louis Fisher, “National Security Whistleblowers,” Congressional ResearchService, Dec. 30, 2005, pp. 35-38, www.pogo.org/m/gp/gp-crs-nsw-12302005.pdf.10 Federal Court of Claims, op. cit.11 Fisher joined the staff of the Library of Congress’ law library on March6, 2006, after 35 years at CRS. See, Yochi J. Dreazen, “Expert on Congress’sPower Claims He Was Muzzled for Faulting Bush,” The Wall Street Journal,Feb. 9, 2006, p. A6.12 Louis Fisher, “Congressional Research Service memorandum to: JenniferHemingway, Senate Committee on Homeland Security and GovernmentalAffairs, Nov. 25, 2005.”

Former Defense Department nuclear-proliferation expert Richard Barlow.

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porting fraud, waste or abuse — upfrom 24 percent in 1983. And fewerthan 20 percent of employees whofiled complaints with the MSBP weresuccessful in their cases. 42

The OSC’s record was even moredismal. A 1994 report by the House PostOffice and Civil Service Committee foundthat the agency had not litigated a sin-gle case to restore a whistleblower’s job— even though 400 to 500 employeeshad filed cases with the OSC since its1979 creation. 43

Employees also fared badly in the

U.S. Court of Appeals for the FederalCircuit, the only court authorized to hearappeals of MSPB decisions. In one case,the House Post Office panel said a judgeviolated congressional intent in upholdingthe firing of a Department of the Armyemployee who claimed her dismissalwas retaliation for whistleblowing. Thedepartment had not even been requiredto prove that the whistleblowing playedno part in her firing.

That case helped persuade Congressin 1994 to amend the law, allowing em-ployees to challenge an agency deci-

sion to change their working conditionsor order them to get psychiatric testing.The new law also authorized the MSPBto reinstate employees at the same joblevel they would be occupying if theprohibited personnel practice hadn’t oc-curred and reimburse the employees forattorney’s fees and back pay.

Famous Whistleblowers

D espite weaknesses in the protec-tion laws, corporate and gov-

PROTECTING WHISTLEBLOWERS

Whistleblower advocates say the chief federal officialcharged with protecting whistleblowers who are fed-eral employees is out to sabotage employee rights.A formal complaint filed by employees and whistleblower-

advocacy organizations charges that Scott J. Bloch, who headsthe Office of Special Counsel (OSC), issued an illegal gag orderand transferred employees he considered disloyal.

“Complainants’ allegations against Special Counsel Bloch. . . go to the heart of OSC’s credibility and effectiveness asa watchdog of the [federal] merit system,” said the Govern-ment Accountability Project, the Project on Government Over-sight, Public Employees for Environmental Responsibility andHuman Rights Campaign. Their initial complaint was filed onMarch 3, 2005. 1

Whistleblower advocates say Bloch’s personnel practices re-flect the OSC’s performance in handling whistleblower cases.“This OSC is even worse than the others,” says Washington lawyerStephen M. Kohn, who often represents whistleblowers. WhileOSCs in previous years filed a couple of cases, he says, “thisone does straight-out nothing.”

For its part, the OSC reports it referred 19 whistleblower al-legations to federal agencies for investigation last year, and that16 were substantiated.

The complaint against Bloch charges that his methods oftrimming the office’s case backlog included closing cases “atbreakneck speed” — often without even interviewing com-plainants alleging retaliation. 2

Bloch, who took office in January 2004, has dismissed theallegations as false — the product of disgruntled employees andadministration opponents. “They don’t like the success Bush of-ficials are having in dealing with the bureaucracy,” he said. 3

Rep. Tom Davis, R-Va., chairman of the House GovernmentReform Committee, congratulated Bloch last May for reducingthe agency’s historically massive backlog of whistleblower andother cases, which had been cited in a critical report by the

General Accounting Office. “We appreciate the professional se-riousness with which you . . . reduced the existing backlogs,”Davis said, in a letter cosigned by Rep. Jon G. Porter, R-Nev.,chairman of the House Federal Workforce Subcommittee. “Un-fortunately, this activity, while beneficial to whistleblowers, wasregarded with suspicion by activists who claim to work on be-half of whistleblowers.” 4

The whistleblower advocates cited leaked OSC reports, apractice Bloch excoriated. “It’s unfortunate that we have a leak-er or leakers in our office who went to the press rather thancoming to me,” Bloch said. 5 He later ordered that any “offi-cial comment on or discussion of confidential or sensitive in-ternal agency matters with anyone outside OSC” had to be ap-proved by him or his immediate staff, according to thecomplaint. That directive violated both the First Amendmentand a federal law authorizing federal workers to disclose in-formation to Congress, the complaint argues. 6

Bloch himself told Federal News Radio he is pro-whistle-blower. “Any time we can give more protection to whistle-blowers and make sure that they understand that they’re pro-tected, it’s a good thing. . . . They do have an agency thatdoes go to bat for them. It is true that some don’t get as muchjustice as they wish or as quickly as they ought to. We aremaking significant progress in that.” 7

The interview didn’t touch on the charges against Bloch’smanagement of the agency. Loren Smith, the OSC’s congres-sional and public affairs director, says Bloch doesn’t want todiscuss the complaint until investigators have examined the al-legations.

The complaint that received the most attention said Blochflouted federal law by refusing to pursue cases involving em-ployees who report discrimination based on sexual orientation.Bloch ignited the controversy shortly after taking office by re-moving references to sexual-orientation discrimination from hisagency’s Web site. He later said that while discriminating against

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ernment insiders continued speaking outin the mid-1990s. In 1996, whistleblowersat the McDonnell Douglas Corp. re-vealed more than $1 billion in overrunson development of the Air Force’s C-17cargo jet, triggering a Pentagon investi-gation, dramatic congressional hearingsand the forced retirement of three gen-erals. The company paid a $500,000 fineto the Securities and Exchange Com-mission to settle charges it misled stock-holders about the C-17 project. In set-tling, the company neither admitted nordenied wrongdoing. 44

The year before, in an even moresensational case, Jeffrey Wigand, a for-mer research director for Brown &Williamson Tobacco Corp., testified thecompany had opposed developingsafer cigarettes in order to escape li-ability for the negative health effectsof cigarettes. 45

Although Brown & Williamson hadalready fired Wigand, it sued him forbreaking a confidentiality agreement. Butthe firm dropped the suit as a preludeto a massive 1998 settlement betweenthe tobacco industry and a group of

state attorneys general and private lawyersin which major tobacco firms agreed topay $206 billion over 25 years to endstates’ anti-tobacco lawsuits. 46

Another tobacco whistleblower leakeddocuments showing that Brown &Williamson executives knew that ciga-rettes caused cancer. 47 Merrell Williams,a paralegal for a Louisville law firm, se-cretly photocopied the documents andgave them to a prominent plaintiffs’lawyer, who turned them over to Rep.Waxman, then chairman of the HouseHealth and Environment Subcommittee.

an employee’s sexual “conduct” wouldbe illegal, discriminating against anemployee’s sexual “orientation”might not be. 8

Following a storm of criticism fromgay-rights advocates and administra-tion critics, White House spokesmanTrent Duffy said, “The president be-lieves that no federal employeeshould be subject to unlawful dis-crimination. That’s longstanding fed-eral policy that prevents discrimina-tion based on sexual orientation.” 9

In response, Bloch seemed to ad-just his view, announcing he’d con-cluded after a legal review that hisoffice could investigate claims of dis-crimination based on sexual orienta-tion when the discrimination was root-ed in an assumption about an employee’s private conduct. 10

But a month later, he told the Senate Homeland Security andGovernment Affairs Subcommittee that he didn’t have legal au-thority to defend workers who suffer discrimination simply be-cause they are gay.

Senators of both parties responded by lecturing Bloch onhow to treat employees. Rep. George Voinovich, R-Ohio, saidhe had learned that 10 of the 12 Washington staffers orderedtransferred by Bloch had left the agency rather than transferto offices in Dallas and Detroit. Bloch said he’d had no in-tention of harming any employees. “Your actions don’t com-port with your words,” Sen. Frank R. Lautenberg, D-N.J., toldthe counsel. 11

Beth Daley, senior investigator for the Project on Govern-ment Oversight, says she has little hope that the agency as-signed to investigate the allegations against the OSC — the

Office of Personnel Management (OPM)— will pursue the case energetically.“We’re not holding our breath,” she says.

“Depending on the complexity, it couldtake three or four months,” says NorbertVint, the OPM’s assistant inspector gen-eral for investigations. As to the com-plainants’ low confidence, Vint says, “Ican’t comment on their opinion. Our opin-ion is that we will do a thorough in-vestigation.”

1 Detailed allegations are contained in “Statementin Support of Complaint of Prohibited PersonnelPractices Against U.S. Special Counsel Scott J.Bloch,” March 3, 2005; “Amended Complaint,”March 31 , 2005 , bo th ava i l ab l e a t ,http://pogo.org/p/government/OSCcompendium.html.2 Ibid., p. 22.3 Tim Kauffman, “Spotlight; New counsel reviews

whistleblower, bias laws,” Federal Times, March 22, 2004, p. 22.4 For background, see, “U.S. Office of Special Counsel: Strategy for ReducingPersistent Backlog of Cases Should be Provided to Congress,” General Ac-counting Office [now, Government Accountability Office], GAO 04-36, March2004, www.gao.gov/new.items/d0436.pdf.5 Kauffman, op. cit.6 “Statement in Support of Complaint,” op. cit., pp. 26-28.7 “Are whistleblowers protected?” Jan. 1, 2006, available at www.osc.gov/library.htm.8 Tim Kauffman, “OSC to study whether bias laws covers gays,” FederalTimes, March 15, 2004, p. 4.9 Jerry Seper, “Bush backs policy against bias; Challenges counsel’s deci-sion on sexual orientation,” The Washington Times, April 2, 2004, p. A6.10 Office of Special Counsel,” Results of Legal Review of DiscriminationStatute,” press release, April 4, 2004, www.osc.gov.11 Stephen Barr, “Senators Criticize Special Counsel’s Treatment of Employ-ees,” The Washington Post, May 25, 2005, p. B2, and Christopher Lee, “Of-ficial Says Law Doesn’t Cover Gays,” The Washington Post, May 25, 2005,p. A25.

Scott J. Bloch, special counsel, federalOffice of Special Counsel.

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PROTECTING WHISTLEBLOWERS

The documents were crucial to the to-bacco settlement, and Williams — whenhis name surfaced — became a heroto anti-tobacco advocates.

In a more public display of whistle-blowing, Jennifer Long, an IRS audi-tor in Houston, and six colleagues —hidden behind screens, their voicesdisguised — told the Senate FinanceCommittee that some auditors target-ed low-income taxpayers seen as de-fenseless but didn’t cite wealthier cit-izens for violations because theycould afford lawyers to challenge IRSexaminers. 48

Long’s bosses took steps to fire her,but they backtracked after Finance Com-mittee Chairman William V. Roth, R-Del., complained to the IRS commis-sioner and described the attemptedfiring as “contempt of Congress.” 49

Even as the IRS and tobacco dra-mas were playing out, complex whistle-blower allegations were surfacing fromthe worlds of law enforcement andnational security.

At the FBI, Frederic Whitehurst, achemist in the explosives library,began telling superiors in the early1990s that laboratory reports werescientifically flawed and typically slant-ed against defendants. 50 By 1994,his complaints had prompted an in-ternal investigation. The conclusion:Whitehurst was “an idealist and per-fectionist who sees everything as blackor white.” 51

Whitehurst demanded an indepen-dent investigation, and a Justice De-partment inspector general concludedhe had been largely correct. 52 In 1998,in return for Whitehead’s resignation,the FBI agreed to pay the 50-year-oldchemist the salary and pension he wouldhave received if he had retired at 57— a deal worth about $1.1 million. TheFBI also paid $258,580 of Whitehurst’slegal costs. Then, to settle a Whitehurstlawsuit against Justice, the departmentpaid him $300,000. Typical settlementsin such lawsuits were $5,000, said White-hurst’s lawyer. 53

Whistleblowing by Richard Nuccio,a State Department official involved inpeace talks between the Guatemalangovernment and left-wing guerrillas,didn’t end so happily. In 1995, he re-ported possible CIA human-rights abus-es to Rep. Robert Torricelli, D-N.J., whopassed the information to The New YorkTimes. After Nuccio was identified asthe source, the CIA revoked his secu-rity clearance for releasing the infor-mation without authorization. 54

The Senate Intelligence Commit-tee then proposed a new provisionin the Intelligence Authorization Actallowing executive-branch employeesto disclose classified information tocongressional committees or to theirown representatives if doing so re-vealed improprieties or threats to thepublic. 55 But President Clinton vowedto veto any intelligence bill that con-tained the provision, and House-Sen-ate conferees removed the whistle-blower shield. 56 Without his securityclearance, Nuccio lost his job. 57

He wasn’t the only national-securitywhistleblower involved in sensitive mat-ters. In the late 1980s, former DefenseDepartment and CIA specialist on nu-clear proliferation Barlow lost his De-fense job after running afoul of U.S.policy toward Pakistan and its nuclearambitions. 58

Post-9/11 Whistleblowing

A fter the terrorist attacks, whistle-blowers focused an often-searingspotlight on the competence of gov-ernment intelligence officials.

First came FBI agent Rowley, whoin 2002 accused top FBI officials ofblocking efforts to probe more deeplyinto Zacarias Moussaoui, whom agentshad arrested shortly before 9/11 inMinneapolis, where he’d been takingflying lessons. She also criticized thefailure to follow up a Phoenix agent’sinquiries about Arab men studyingaviation. 59

Testifying before the Senate Ju-diciary Committee made Rowley amedia superstar. Her prominencemay have insulated her from retal-iation, but Judiciary Committee mem-bers also got Mueller to pledge therewould be no reprisals against her.Soon afterward, Rowley and twoother whistleblowers became Time’s“Persons of the Year.” 60

Accompanying her on the maga-zine’s cover were corporate whistle-blowers Sherron Watkins, the Enron vicepresident who had warned ChairmanKen Lay the firm faced financial col-lapse; and WorldCom auditor CynthiaCooper, whose accounts of phony ac-counting practices helped push the tele-com giant into bankruptcy. 61

In the years that followed, however,national-security whistleblowers eclipsedtheir private-sector counterparts, includ-ing Richard A. Clarke, counterterrorismdirector at the National Security Coun-cil under presidents Clinton and Bush.Clarke asked to be reassigned after hispre-9/11 warnings about the al Qaedaterrorist network went — as he saw it— unheeded. 62

After leaving government in 2003,Clarke described his failed whistle-blowing in a 2004 book, Against AllEnemies: Inside America’s War onTerror. When then-National SecurityDirector Condoleezza Rice and otherofficials challenged his account, Clarkerepeated his charges before the bi-partisan commission investigating pre-9/11 security breaches. 63

The Iraq war became a new fieldfor whistleblowers. Corps of Engineerscontract supervisor Greenhouse raisedquestions about contracting irregularitiesin a series of billion-dollar contractsawarded to the Halliburton subsidiaryKellogg Brown & Root. 64 In 2005,Greenhouse was demoted for allegedlypoor job performance, but the Corps’commander said retaliation had notbeen the motive. 65 She is contestingher demotion.

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March 31, 2006 281Available online: www.cqresearcher.com

At Issue:Should Congress expand whistleblower rights?Yes

yesTHOMAS DEVINELEGAL DIRECTOR, GOVERNMENT ACCOUNTABILITYPROJECT

FROM A LETTER TO THE U.S. SENATE, MARCH 13, 2006

t welve years of hostile court rulings against whistleblowersby the federal Circuit Court of Appeals have effectivelyrewritten the Whistleblower Protection Act (WPA) —against congressional intent. Since the 1994 vote to strengthenthe WPA, whistleblowers have suffered a 1-119 track recordthere for decisions on the merits.

The federal Circuit Court translated explicit statutory lan-guage to provide legal protection for “any” lawful disclosureof wrongdoing to mean “almost never.” This was donethrough rulings that disqualify whistleblower protection for themost common disclosures of wrongdoing, such as those madeto a supervisor or during the course of one’s job duties.

The impact of these and other rulings [has] made theWhistleblower Protection Act the most powerful reason forgovernment workers who witness fraud, waste or abuse to re-main silent. We cannot expect public servants to defend ourfamilies and our tax dollars if they cannot defend themselves.

A status quo that is bad for whistleblowers is also bad forthe taxpayers. Secrecy breeds corruption. In an era of recordgovernment spending, we need whistleblowers . . . to guardagainst waste, fraud and abuse and so that we know the truecost of programs. We need them for homeland security — toallow Congress to act against vulnerability to terrorists causedby bureaucratic negligence at our nuclear weapons facilities, atour airports and elsewhere. We need them to protect the healthof America’s families — whether to warn about government-approved painkillers that have killed tens of thousands orgovernment-inspected meat and poultry that have hospitalizedhundreds of thousands more.

Genuine rights are long overdue for those who championaccountability within the federal bureaucracy. After the Enronand MCI scandals, Congress gave state-of-the-art whistleblowerrights to corporate workers [that are] far stronger than whatare available for federal employees. Those defending America’sfamilies need protection against retaliation as much as thosedefending America’s stock values.

Just before Christmas, United Nations Under Secretary Gen-eral Christopher Bernham unveiled a whistleblower policy forU.N. employees that is far stronger than the WPA. The newpolicy is based largely on the best practices of other nations,whose whistleblower protections also have surpassed those inthe United States. Mr. Bernham . . . effectively insisted on andwon some of the precise protections for U.N. employees thatare not available for federal workers in the United States.No

WILLIAM E. MOSCHELLAASSISTANT ATTORNEY GENERALDIRECTOR, OFFICE OF LEGISLATIVE AFFAIRS, U.S. DEPARTMENT OF JUSTICE

FROM A LETTER TO THE U. S. SENATE, APRIL 12, 2005

t he WPA [Whistleblower Protection Act] already providesadequate protection for legitimate whistleblowers. The fed-eral Circuit appropriately has recognized that the purposesof the WPA must be taken into account in determining whethera disclosure is one protected by the WPA. These limitations arereasonable and serve to further the purpose of the WPA to pro-tect legitimate whistleblowers.

The proposed expansive definition [of whistleblower com-plaints] has the potential to convert any disagreement or con-trary interpretation of a law, no matter how trivial or frivolous,into a whistleblower disclosure. Such an increase in the numberof frivolous claims would impose an unwarranted burden uponfederal managers. Given the expanded definition of disclosure,it would be exceedingly easy for employees to use whistle-blowing as a defense to every adverse personnel action.

Nearly every federal employee will, sometime during thecourse of his or her career, disagree with a statement or interpre-tation made by a supervisor, or during the course of performinghis or her everyday responsibilities report an error that maydemonstrate a violation of a law, rule or regulation. Without theability to take the context — the time, the place, the motive —of the alleged disclosure into account, even trivial matters wouldbecome elevated to the status of protected disclosures.

Conceivably, any time a supervisor suspected wrongdoingby an employee and determined to look into the matter, the“investigation” could be subject to challenge. Employeeswould be able to delay or thwart any investigation into theirown or others’ wrongdoing.

The Constitution not only generally establishes the presidentas the head of the executive branch but also makes him com-mander in chief of all military forces, the sole organ of Ameri-ca’s foreign affairs and the officer in the government with theexpress duty (and corresponding authority) to take care thatthe laws are faithfully executed.

The executive branch remains committed to accommodatingCongress’ legitimate oversight needs in ways that are consistentwith the executive branch’s constitutional responsibilities. Howev-er, a process exists by which this has been and may be done.

The process of dynamic compromise between the branches,whereby each branch seeks an optimal accommodation byevaluating the needs of the other, cannot function whereevery covered employee of the executive branch is vestedwith the right to decide for himself or herself — without anyofficial authorization — [what] disclosures are appropriate.

282 CQ Researcher

PROTECTING WHISTLEBLOWERS

CURRENTSITUATION

Legislative Potential

S en. Lautenberg is proposing themost far-reaching measures tostrengthen whistleblower protections.His Whistleblower Empowerment, Se-curity, and Taxpayer Protection Act of2006 would bring spy-agency workersunder the Whistleblower Protection Act.That would guarantee whistleblowersalleging retaliation access to federal Dis-trict Court, authorize them to ask forspecial prosecutors to investigate the re-taliation and subject bosses to fines forretaliating against whistleblowers.

“Right now, managers who retali-ate against whistleblowers get off ba-sically scot-free, even though whistle-blower retaliation is against the law,”Lautenberg said in a statement.

But many question whether Con-gress is in the mood for such a sweep-ing change. “It would take a miracle forit to pass on its own,” says Devine ofthe Government Accountability Project.For instance, the bill would have to passthrough the Senate Intelligence and Ju-diciary committees, where objectionswould be likely. The National SecurityWhistleblowers Coalition, organized bydismissed FBI translator Edmonds, helpeddraft the bill, which she says answersa need for sweeping legislation.

Devine and some other whistle-blower advocates are pinning theirhopes on the measures introduced lastyear by Sen. Akaka and Rep. Platts.The bills would close loopholes in ex-isting whistleblower law by:

• Ensuring that federal employeescould get whistleblower protec-tion even if discovering the wrong-doing they are reporting is partof their job;

• Allowing employees to use clas-sified information to reportwrongdoing to Congress;

• Allowing whistleblowers to appealMSPB decisions to federal Circuitcourts for a period of five years,helping to end the Federal Circuit’smonopoly over jurisdiction; and

• Providing a review mechanism foremployees whose security clearanceis revoked.

Although the administration opposesboth measures, they passed their re-spective committees last year, and theSenate legislation had been approved incommittee in two previous years. Afteran administration official testified theSenate bill could make managing fed-eral employees more difficult, the Sen-ate Homeland Security and GovernmentalAffairs Committee said in its 2005 reporton the bill, “We can take other steps todeter and weed out frivolous whistle-blower claims, but we cannot begin tocalculate the potential damage to the na-tion should good-faith whistleblowingbecome chilled by a hostile process.”

Nevertheless, the bill never reachedthe floor. Advocates of stronger whistle-blower legislation say only publicpressure can force congressional lead-ers to allow legislation to reach thefull House and Senate, but more op-timistic advocates say the political cli-mate may be changing.

“We are hearing more about peopledisclosing issues of national concern andgetting in trouble for it,” says a Demo-cratic Senate aide. “I think the Americanpeople aren’t going to stand for it.”

But Sen. Akaka says his bill’s immo-bility after committee approval last yearhas led him to consider tacking it ontoother legislation in the form of amend-ments. Whatever the Bush administra-tion’s attitudes toward whistleblowersmay be, Akaka says, lawmakers aren’tleaping to defend them. “The reactionsand responses indicate they wouldrather not touch the issue,” he says.Whistleblowers can affect “a lot of spe-cial interests that members have.”

Free Speech at Work

A Supreme Court ruling this sum-mer may limit public employees’whistleblower rights.

The high court last year heard ar-guments in the landmark case — in-volving a Los Angeles search warrantcontaining false information — but re-visited it on March 21 after Justice SamuelA. Alito Jr. joined the court. 66

The case essentially revolves aroundthe following questions: Does the con-stitutional right to free speech apply topublic employees who speak or writeas part of their jobs? Can such em-ployees speak or write about corrup-tion or improprieties they witness attheir jobs?

The Bush administration argues thatthe First Amendment doesn’t apply insuch cases. “Constitutional rights arepersonal, and when a public employ-ee speaks in carrying out his job du-ties, he has no personal interest in thespeech,” U.S. Solicitor General Paul D.Clement argues in his brief. 67

Victory in that argument would bea giant step back for employees, sayswhistleblower lawyer Kohn. “It wouldpermit you to fire many whistle-blowers,” he says. “It’s such a gigan-tic issue because 98 percent of allwhistleblowers go to management first.And the majority would deny to yourface that they were whistleblowers;the majority say they were just doingtheir job. The moment you stop thattype of conduct from being protect-ed, you undermine almost all whistle-blower cases.”

Furthermore, Kohn contends, exist-ing Supreme Court precedents givepublic employees on-the-job FirstAmendment rights on issues of pub-lic concern, even if they deal withthose issues as part of their jobs.

The high-stakes legal dispute evolvedafter a deputy Los Angeles prosecutorinvestigated a defense lawyer’s motionto throw out a search warrant that had

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authorized a search that led to drugand firearms charges. 68 ProsecutorRichard Ceballos concluded that thewarrant contained false informationand that the deputy sheriff who ob-tained it may have lied. Ceballos ar-gued to his boss that the criminal chargesshould be thrown out, and he said asmuch in court. But after the hearing,he was demoted and transferred to adistant office.

Ceballos sued District Attorney GilGarcetti and Los Angeles County, claim-ing the punitive actions taken againsthim violated his First Amendment rightto free speech. A U.S. District Courtand the U.S. 9th Circuit Court of Ap-peals agreed. Garcetti (now out of of-fice) and the county appealed to theSupreme Court, arguing they actedlegally against Ceballos because hehad no free speech on matters in-volving his job.

But his lawyers argue that stiflingwhistleblowing is a bad idea: “It is notin any government agency’s best in-terest ‘to fly blind’ because its em-ployees are afraid to report corruptionor abuse.” 69

While Solicitor General Clement ar-gues that public employees would beprotected if they spoke out as citizensinstead of as civil servants, his briefwarns that any employee whose jobduties include reporting wrongdoingis generally “prohibited from speakingto the press about an ongoing inves-tigation without the permission of hisemployer, [who] may well disciplinehim for violating the prohibition.”

Ceballos’ chief lawyer, Bonnie Robin-Vergeer of the nonprofit Public CitizensLitigation Group of Washington, callsthe government position “startling andextreme.” And as a practical matter, noemployee who calls the press as a cit-izen to report wrongdoing would es-cape discipline. “It’s just what it lookslike,” she says of the government po-sition. “It means the public employeereally can’t speak on matters of pub-lic concern.”

OUTLOOKOpen Floodgates?

N othing generates protection forwhistleblowers better than scan-dal, says whistleblowers’ lawyer Kohn.After Enron and WorldCom imploded,Congress passed the Sarbanes-OxleyAct of 2002, which gave corporate in-siders the right to file federal lawsuitsif they suffered retaliation after re-porting wrongdoing. 70

Now, he contends, the Bush ad-ministration’s policy of controlling in-formation is breeding new cadres ofinsiders. Inevitably, information aboutmisconduct will surface, he says, gen-erating pressure for more laws.

“Whistleblowers can save our gov-ernment a lot of grief, a lot of moneyand correct some of the inequities andproblems our government has,” Sen.Akaka says. “The whistleblowers whohave come forward to disclose secu-rity lapses and, in particular, threats topublic health and safety since 9/11,have brought renewed attention tothose who alert the public to gov-ernment wrongdoing.”

The public has no trouble graspingwhistleblowers’ role, Kohn says. “If youlook at most other areas of employmentdiscrimination, there hasn’t been that muchmovement, but in the whistleblower fieldthey keep passing laws.” The public issaying to companies and agencies, headds, “ ‘the more you don’t get the mes-sage that things have changed, the lawsare going to get tougher and tougher.’ ”

However, whistleblower protection canmean almost anything, depending onwho’s talking. “It’s become a mother-hood issue,” says Ruch of Public Em-ployees for Environmental Responsibili-ty. “It’s like the environment; no one’santi-environment. So officials will say,we’re in favor of whistleblower protec-tion, but we’re also in favor of flexibili-

ty — increasing management preroga-tives to hire and fire.” Flexibility, he says,can become a euphemism for facilitat-ing retaliation against whistleblowers.

Furthermore, as efforts to combat ter-rorism continue indefinitely, expandedpresidential wartime powers pose a dan-ger for whistleblowers, especially givenany administ