by GAP Legal Director Tom Devine and FBI Whistleblower Coleen Rowley. This op-ed also appeared in the Daily Sun News (WA), Lake Sun Leader (MO), Waynesboro News-Virginian, Cumberland Times News (MD-WV), Shawano Leader (WI) and the Capital Times (WI).
Last month, the Supreme Court ruled that public employees can be fired for carrying out duties essential to the proper conduct of their jobs. The Court's findings in Garcetti v. Ceballos mean the government must speak with one voice, even if that voice is a lie. But what about the truth, especially when the government falsifies or covers up its own betrayal of public trust?
Richard Ceballos was a Los Angeles county prosecutor who discovered a deputy sheriff may have lied to obtain a search warrant. After he alerted superiors, they ordered him to keep quiet. Nonetheless, as legally required, he notified defense attorneys of the evidence. In response, Ceballos was removed from the prosecution's team, demoted and transferred. In a 5-4 decision, the Court upheld this retaliation.
Discarding longstanding First Amendment free speech rulings that involve matters of public concern, the Court canceled that right where it counts most - on the job. This decision covers all government workers - federal, state or municipal.
This is not merely about rights for internal critics. The decision puts all government workers in a potential Catch-22. The Standards of Ethical Conduct for Employees of the Executive Branch, regulations that federal workers are required to follow, state that employees "shall disclose waste, fraud, abuse and corruption to appropriate authorities." Therefore, if employees witness or stumble across misconduct, they are supposed to report it. But after this ruling, even if they report corruption that, for example, threatens public health or safety, they can be legally retaliated against.
Canceling the Constitution for "duty speech" means that government employees must be "yes people," parroting false information and enabling illegality. The paramount "duty" now set for employees is blind loyalty to supervisors, as opposed to remaining true to one's country.
What are the risks from silence? Government workers can no longer be honest when they prosecute alleged criminals, assess our country's readiness against terrorists, or anything else where the truth may upset the boss. While the chilling effect of this ruling is on government employees, the biggest loser is the American public, as future threats to public safety and instances of fraud, waste and abuse will simply not be brought to light.
In the last few years, speaking the truth has become an act of rebellion, as it threatens abuses of power sustained by unprecedented secrecy. Not surprisingly, harassment of whistleblowers has intensified. In scandal after scandal, the administration has gagged its employees and investigated them while ignoring the misconduct they revealed, purging those seen as disloyal.
Most frightening may be the threat to our freedom from within. We now know that the NSA is gathering phone data records under the veil of tracking down terrorists. Less reported is that the government is also focusing efforts on tracking news reporter's calls to sources to identify whistleblowers.
These developments follow earlier revelations of illegal, warrant-less NSA surveillance. Despite scattered objections, the Senate Judiciary Committee has drafted "oversight" legislation giving the White House an eavesdropping blank check on nearly anyone, while imposing harsh penalties on associated whistleblowers. The House even passed a bill that could silence government retirees by threatening them with loss of pension for "unauthorized disclosures." For federal retirees (Ms. Rowley is one) a required "pre-publication review" would make it impossible to engage in public debates, distribute campaign materials in a timely manner, or join political blog discussions.
The Court alludes to whistleblower statutes such as the 1989 Whistleblower Protection Act, but this law for federal employees has been gutted by judicial activism that removed statutory protection for on-the-job disclosures of misconduct.
To protect whistleblowers and ensure government employees are not punished for telling the truth, Congressional leaders must schedule votes on bills like S. 494 and H.R. 5112 to restore federal accountability. The legislation has been unanimously approved by committees in the last two Congresses, but the leadership has caved to Justice Department demands, refusing to schedule floor votes.
Former Supreme Court Justice Brandeis explained that sunlight is the best disinfectant for corruption. That lesson was forgotten by this High Court. To repair the damage, Congress must quickly restore some protection, at least for whistleblower disclosures that protect the public and those required by federal ethics regulations.