For all the politicking about waste, fraud and abuse on Capitol Hill, you’d think the federal government would do more to encourage civil servants to expose abuses of power. But government employees often face enormous risks just for daring to speak up about corruption. Public interest advocates have long warned that the government’s toothless system for protecting whistleblowers leaves workers vulnerable to retaliation from higher-ups.
The legislation would open a new legal channel for many federal employees to fight for reinstatement or back wages in a jury trial. Whistleblowers whose claims meet certain criteria, including various legal hurdles and time limits could bypass the regular (notoriously dysfunctional) administrative process for adjudicating claims.
Recent high-profile cases — along with the Obama administration’s stated commitment to restoring transparency and rational thought to government — have stepped up pressure to expand whistleblower protections.
In 2003, federal law enforcement officer Robert MacLean reported to the media that the Department of Homeland Security had cut funding for air marshals on long-distance flights in the midst of a hijacking alert. He was fired in 2006, because he had disclosed what the feds vaguely defined as “Sensitive Security Information.”
One of the most infamous weapons in Bush’s counterterrorism arsenal, widespread warrantless wiretapping, was uncovered by an insider at the Justice Department, Thomas Tamm. But while the New York Times won journalistic accolades for exposing the program, Tamm became an FBI target. Newsweek reported last December that federal agents relentlessly pursued Tamm, interrogating family members and even raiding his home, terrorizing him with the threat of prosecution.
Advocates hope that broadening legal remedies for whistleblowers will make agencies think twice before cracking down. Danielle Brian, executive director of the Project On Government Oversight (POGO) testified at a recent Senate hearing:
We believe the mere existence of access to jury trials will both encourage those who know of wrongdoing but have hesitated to come forward because they didn’t believe they had a fighting chance. We also believe it will deter those managers who are inclined to shoot the messenger and punish their employees for making disclosures. In the end, what we want is a system that will avoid the need for a courtroom, but will allow for it if necessary.
The bill also extends whistleblower protections for government scientists and airport security officers.
However, the legislation stops well short of clearing up the most opaque facets of federal bureaucracy. The Senate bill — which is weaker than its House companion glaring exemptions for the FBI, CIA and other security-related agencies. And according to an analysis by the National Whistleblowers Center, the reforms could actually narrow the scope of the review process for intelligence personnel.
Mike German, a former FBI agent and now policy counsel with the ACLU, testified at a House hearing in May about the critical role of federal whistleblowers in the exposure of the ugliest aspects of the war on terror, like government round-ups of immigrants, invasive National Security Letters and detainee abuse at Guantanamo Bay. But too often, German argued, workers who expose malfeasance expose themselves to backlash:
Congress cannot expect whistleblowers from these agencies to come forward if it will come at the expense of their careers. The failure to provide the necessary protections not only betrays the brave federal employees who dare to come forward despite the personal consequences, but it also undermines Congress’s ability to fulfill its constitutional obligation to serve as an effective check against executive abuse of power.
Expanding legal remedies for wronged workers, of course, wouldn’t turn around a bureaucratic culture hostile to internal watchdogs. But a real overhaul of whistleblower protections would strengthen the link between labor rights and government integrity. In an age of bank bailouts and corporate scandal, crooked bosses abound. But none are in greater breach of the public trust than those who are running our government. And none are more deserving of protection than the workers who won’t let them get away with it.
Michelle Chen is a contributing writer at In These Times and The Nation, a contributing editor at Dissent and a co-producer of the “Belabored” podcast. She studies history at the CUNY Graduate Center. She tweets at @meeshellchen.