If 2002 was the ‘Year of the Whistleblower,’ 2004 can only be deemed the ‘Year of the Gagged’ when it comes to patriotic civil service whistleblowers challenging abuses of power by federal bureaucracies, say analysts.
But there is hope. Congress is tantalizingly close to changing this national security nightmare through bipartisan legislation unanimously approved this summer by both the House and Senate Government Affairs Committees.
Despite President George W. Bush’s calls for protecting whistleblowers, bureaucratic trial lawyers and institutional antireformers are killing this much-needed reform by preventing it from getting to the floors of the House and the Senate.
The dimensions of the scandal and political backroom deal-making can best be understood by considering:
• Corporate whistleblowers are protected by the Sarbanes/Oxley law requiring good governance and transparency in the business world.
• Mafia bosses, murderers and drug dealers are protected by the Witness Protection Program.
• But patriotic civil servants both before and since the carnage of September 11, 2001, are left to dangle despite legislation on the books that has been gutted and judicially rewritten into a trap by activist judges hostile to most whistleblowers.
Numerous whistleblowers, including the FBI’s Coleen Rowling, have claimed a faith-based motivation to inform the public about grave and gathering threats to our way of life. But more and more brave government employees are afraid to reveal the truth either internally to agency heads or even Congress.
Here’s why: Despite 1994 amendments to the Whistleblower Protection Act that had, on paper, the strongest free speech rights in history for government workers, it has in reality become a Trojan horse, creating far more victims, rather than leading in the exposure of wrongdoing, fraud, waste and abuse.
Consider: Of the 96 cases filed since 1994, the Federal Circuit Court of Appeals, which has monopoly judicial review on such matters, has ruled against whistleblowers in 95 of them on the merits. It has done so, shockingly enough, by creating a judicial rule not found in the law requiring “irrefragable proof” of government misconduct. The dictionary defines “irrefragable” as “uncontestable, undeniable, incontrovertible, or incapable of being overthrown.”
Not only is this an impossible standard for 99.99 percent of cases where whistleblowers are simply trying to get internal or public attention to investigate wrongdoing – this new judicial standard is tougher than any used in a criminal case.
Stunningly, and despite the September 11 Commission’s and unanimous votes by relevant Senate and House committees for credible whistleblower protection to be born again – along with President Bush’s support in public – the Justice Department has defended the absurd judicial activism. And congressional leaders have sat on their hands despite countless pleas from whistleblowers. Many of these leaders are the ones congressional investigating panels rely on for public oversight of federal agencies.
The Justice Department is attacking not only the rights of individual whistleblowers but also the safety of America’s families and the fiscal trust of America’s taxpayers. Inspectors general and the General Accounting Office, like the public, understand it is the patriotic civil servants in the trenches who are the lifeblood for credible campaigns against big government corruption, fraud, waste and abuses that not only consume taxpayers’ dollars but can threaten the security of every man, woman and child in America.
If the U.S. public learned the valuable lessons of September 11, 2001 – and one would expect Congress and the Bush administration to have done so – the “Paul Revere” national security whistleblowers have been invaluable tutors. Many warned of the very airliner vulnerabilities exploited on September 11, and the remaining security breaches that are tragedies waiting to recur. Yet rather than be rewarded for sounding the alarm, many whistleblowers have lost their security clearances, been relegated to dead-end jobs or fired.
Giving whistleblowers genuine, enforceable rights to warn our leaders and the public should be the No. 1 priority of this Congress. It could prevent the next tragedy – instead of having to find fall guys after, God forbid, some tragedy results from not protecting those who are trying to protect us all.
The stalled legislation would restore to government workers a more modest version of the protections Congress passed in the Sarbanes/Oxley law for corporate employees challenging business misconduct that wound up costing the American taxpayers and our economy billions of dollars.
On the first day of his first term – and many times since – President Bush ordered all federal employees to report any fraud, waste and abuse they see. As a matter of fairness, duty, honor and national security, Congress should jump over bureaucratic Justice Department walls and pass this legislation to defend the Americans whose careers are being bureaucratically destroyed for following the president’s orders.
A broad and diverse coalition of 120 public interest, public advocacy and good government groups representing millions of taxpayers and hundreds of thousands of government employees support this legislation. They all vote and they also deserve a safer America. Congress now must do its job lest the consequences come back to haunt us all.
Paul Rodriguez is the former managing editor of Insight Magazine. Thomas Devine is legal director for the Government Accountability Project.
Thomas Devine and Paul Rodriguez, The Washington Times, November 21, 2004