Stripped Provision in Authorization Act Would Have Provided Agency Heads With Sweeping New Powers to Retaliate

Today, GAP is praising the actions of Senator Ron Wyden (D-OR) for successfully protecting the rights of national security whistleblowers. Wyden fought against a broadly crafted provision in S. 719, the Intelligence Authorization Act for Fiscal Year 2011 (IAA) that, if passed, would have given Intelligence Community agency heads sweeping new power to retaliate against those employees they personally believe made unauthorized disclosures.
 
In this year’s IAA, the Senate Select Committee on Intelligence had inserted language permitting agency chiefs to punish current or even retired employees, whenever the chief decides that such an employee has made an unauthorized disclosure. The minimum penalty would be removing their pensions. Traditionally, past legislation has called for internal agency due process. But no statutory rights for employees were included in the IAA draft. In terms of due process, internal agency proceedings have typically been honor systems that routinely rubberstamp retaliation in the context of security clearance actions.
 
The committee included legislative history specifying that existing whistleblower laws would not be cancelled out by this provision, but agencies have routinely ignored this as unenforceable "cheap talk" in the past.

Today, the Government Accountability Project (GAP) is announcing the successful settlement by Air Force aircraft mechanic George Sarris of his Whistleblower Protection Act (WPA) lawsuit. GAP adjunct attorneys Thad Guyer and Stephanie Ayers challenged a wide range of retaliation surrounding removal of Sarris' security clearance, ranging from removal of meaningful duties to lowered performance appraisals.
 
“The Air Force agreed to give Mr. Sarris everything that the Merit Systems Protection Board (MSPB) could order, and more, without a hearing,” commented GAP Legal Director Tom Devine.
 
A loophole in the WPA deprived Sarris of the right to challenge the security clearance removal. Congress is reconsidering an overhaul of the law, which was on the verge of passing last December when the final vote was blocked by a secret Senate “hold” an hour before adjournment. That overhaul, the Whistleblower Protection Enhancement Act (WPEA), would give employees a chance to file lawsuits challenging retaliatory removal of clearances.
 
Sarris is a well-known figure within the whistleblower rights movement, who spoke at the 2010 National Whistleblower Assembly. He expressed his feelings at the end of a nearly four-year struggle:
 
In an attempt to prevent me from disclosing non-airworthy conditions overlooked by previous generations of aircraft mechanics, management presented me with two un-lawful written orders threatening me with disciplinary actions. Essentially, management attempted to blackmail me into allowing the operation of non-airworthy aircraft in exchange for continued employment. I did not fall prey to blackmail and elevated my concerns through the appropriate channels.

The Government Accountability Project (GAP) today praised Senate action last night to confirm the nomination of Carolyn Lerner as Special Counsel at the U.S. Office of Special Counsel (OSC), the office charged with investigating federal whistleblower disclosures, protecting them from retaliation, and defending the merit system.
 
“This is an outstanding appointment, and we hope that Ms. Lerner will be worth the wait,” stated GAP Legal Director Tom Devine. “To date, her career has personified excellence -- as a litigator, mediator and manager of government reform programs. Lerner has earned widespread respect among good government activists for a lifelong commitment to employee rights."
 
Lerner's task is seen as a difficult one, as OSC has been without a leader for over 18 months, following the resignation of Scott Bloch. Last month, Bloch was sentenced to one month of jail time for withholding information from Congress. During his tenure, Bloch issued gag orders and engaged in harsh retaliation against whistleblowers on his own staff, abandoning the agency’s mission to protect whistleblowers.
 
Devine added that credit should be given to the Oval Office, stating “It is no coincidence that this appointee could be the strongest Special Counsel since the office’s creation in 1978. President Obama now has completed appointments to the strongest, most qualified team in history to protect government and corporate whistleblowers. Now all these leaders need is a credible open government law to enforce. That would be done already, except for a 'secret hold' placed by a senator at the request of House Republican leadership last December on the Whistleblower Protection Enhancement Act (WPEA). It is time for congressional Republicans to put their priorities and votes where their rhetoric is. Their war on waste will be false advertising unless they quickly act to pass the WPEA."

Tom Devine is Legal Director of the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.

The Government Accountability Project (GAP) today released two documents on significant developments in the pending whistleblower appeal of former Federal Air Marshal (FAM) Robert MacLean – the courageous FAM fired for publicly protesting TSA plans in 2003 to abandon Air Marshal coverage during a confirmed terrorist plan for an oversees airlines hijacking.

In a desperate attempt to save face, three years after MacLean’s disclosures – which prevented the cancellation of FAMs on high risk flights – the TSA retroactively labeled the evidence MacLean used to make disclosures to Congress as “Sensitive Security Information.” TSA asserted that, in turn, MacLean violated agency regulations and used this fabrication as grounds for his termination. Yesterday, two congressional offices, those of House Oversight and Government Reform senior members Dennis Kucinich (D.-Ohio) and Carolyn Maloney (D.-NY), filed an amicus curiae, or friend of the court, brief with the U.S. Merit Systems Protection Board (MSPB), where MacLean’s appeal is pending.

In conjunction with the brief, MacLean submitted evidence that the agency’s only witness against him has been demoted two grades for alleged sexual misconduct. This demotion took place after a recently-completed Transportation Security Administration (TSA) internal investigation of the official, on charges that he was shielded from disciplinary action in exchange for purging TSA whistleblowers and leaders of the Federal Law Enforcement Officers Association (FLEOA).

The Ridenhour Awards are today, and GAP, as always, is extremely proud to partner with the Nation Institute, Fertel Foundation, and others to make this event happen. There should be more events that honor the brave acts that whistleblowers take in the name of Americans. These coveted prizes are among the most respected for those citizens who act "in the spirit of courage and truth."

Every year, the awardees are exceptional. This year is no different. Whistleblower and author Wendell Potter takes the Ridenhour Book prize this year for his work in exposing the true nature of health care providers. Sen. Russ Feingold takes the Courage Award for his continued, principled fight against corporate wrongdoing. And a new award this year, the Ridenhour Documentary Film Prize, is being handed out to the producers of Budrus.

And the coveted Ridenhour Truth-Telling Prize -- hands down the most respected annual American award for whistleblowers -- is going to National Security Agency (NSA) whistleblower Tom Drake. Drake, who GAP has advocated for strenuously over the past year, helped expose multi-billion dollar waste and fraud at the NSA by going through several internal government channels. His concerns eventually were reported in the Baltimore Sun. For his actions of protecting America, he now has the dubious distinction of being the fourth American indicted under the Espionage Act for allegedly mishandling classified information. Pentagon Papers whistleblower Daniel Ellsberg was the first person.

This past weekend, GAP and the NPR show On The Media (OTM) announced an end to their "Blow the Whistle" campaign, which sought to identify which U.S. Senator placed a 'secret hold' during the final hours of the last session of Congress, killing the Whistleblower Protection Enhancement Act (WPEA). The crowd-sourcing effort, which relied on citizens to contact their respective senators and report back findings, led GAP and OTM to eliminate all but two senators during the three month campaign.

A shocking revelation about the 'secret hold' emerged during the campaign. According to GAP, based on multiple sources inside congressional offices, one of the two remaining senators killed the bill at the request of Republican leadership in the House of Representatives.

GAP Legal Director Tom Devine commented, "Whistleblowers risk their professional lives to fight government fraud, waste and abuse. How can taxpayers trust any politician who campaigns on that pledge, and then secretly kills rights for government workers who risk their careers to deliver it? House leadership owes taxpayers an explanation as to why they started sabotaging those campaign promises just weeks after the election, before they even began governing. Even more important, Speaker John Boehner owes taxpayers a commitment that this will not happen again."

GAP and OTM are able to confirm, based primarily on information from our supporters and listeners (respectively), that all but two senators were not responsible for the hold on the bill. The final, remaining suspects are Republican Jon Kyl of Arizona, and Republican Jeff Sessions of Alabama. Both Senate offices have steadfastly refused to identify which one formally placed the hold. But the distinction is academic. Four times now since 2004, these two senators have taken turns placing holds that blocked Senate action on the WPEA.

Senator James Risch’s (R-ID) office has confirmed that he had no policy objections to S. 372 last Congress. The Senator’s office held firm to its policy that “it dos not comment on secret holds”; however, through deductive reasoning, he does not fit the bill, so to speak. In turn, GAP has removed Senator Risch from the tapering list of prospective senators that placed the hold on S. 372.

That leaves Senators John Kyl and Jeff Sessions, both part of the Senate leadership team. Four times now since 2004, their offices have taken turns placing holds that blocked Senate action on the WPEA. As reported earlier, Sen. McConnell’s office has denied placing the hold, and Sen. Kyl provided a rather cryptic response to your queries:

“The Senate passed S. 372 on Dec 14, 2010 and the House passed a different version of the legislation on Dec 22. With only hours left in the session, the Senate did not have sufficient time to review the House’s changes and reconcile the differences between the two bills.”

Read more on Sen. Kyl’s response here.

Be sure to tune in this weekend to On The Media, GAP’s partner in the campaign, when GAP Legal Director Tom Devine and the OTM staff will announce the end of the campaign, reveal what we’ve found, and explain where we go from here!

Dylan Blaylock is Communications Director for the Government Accountability Project, the nation's leading whistleblower advocacy organization.