January 10, 2006The agencies and laws created to protect government workers who report wrongdoing from retaliation have been ineffective, a new report concludes.
The Congressional Research Service report describes a power struggle between the executive branch and Congress that has lasted for several decades.
"Enacting statutory rights for whistleblowers and establishing new executive agencies to protect those rights has not produced the protections that some expected," CRS stated. "As explained in this report, the Office of Special Counsel, the Merit Systems Protection Board, and the [U.S. Court of Appeals for the] Federal Circuit -- the agencies created by Congress to safeguard the rights of whistleblowers -- have not in many cases provided the anticipated protections to federal employees."
The issue of executive branch power has been cast in the public spotlight after The New York Times revealed last month that President Bush secretly authorized the National Security Agency to eavesdrop on U.S. citizens without a court order. Supreme Court nominee Samuel Alito was peppered with questions from senators Tuesday concerning his view on how much power the president and executive branch should have, especially during times of war.
The Justice Department has launched an investigation into who leaked information about the secret program's existence. Times reporter James Risen -- who broke the story -- told NBC's "Today" show earlier this month that the leak "was the purest case of whistleblowers coming forward" to report what they believed was a violation of law.
If confirmed, Alito likely will hear cases involving government whistleblowers at some point.
"You give enormous, almost total deference to the exercise of executive power," Sen. Edward Kennedy, D-Mass., told Alito during Tuesday's hearing.
The nominee countered by saying he has tried every case based on its merits. "Sometimes that means siding with the government, sometimes it means siding with the party that's claiming a violation of rights," he said.
Louis Fisher, senior specialist in separation of powers at CRS and the author of the report, told Government Executive he believes that things have become worse for whistleblowers since the Sept. 11, 2001, terrorist attacks because Congress and the courts have overly deferred to the executive branch when it comes to punishing whistleblowers or suppressing information.
"I get the picture that people can do really awful things inside agencies and they never pay any price at all, and that's really scary," Fisher said.
According to the Government Accountability Project, a nonprofit whistleblower advocacy group, only two out of 30 whistleblowers prevailed in cases before the MSPB from 1999 to 2005, and only one whistleblower claim out of 96 prevailed before the Federal Circuit from 1995 to 2005.
"Some, however, may view this as an indication that many whistleblowers present weak cases," the CRS report said.
The 1989 Whistleblower Protection Act has failed to meet "the expectations of some lawmakers, agency employees and private organizations," the report stated. CRS noted that employees and contractors working at national security agencies are the most vulnerable.
The Whistleblower Protection Act does not cover federal or contract employees working for the CIA, Defense Intelligence Agency, National Imagery and Mapping Agency, National Security Agency, the FBI and "any other executive agency determined by the president to have as its principal function the conduct of foreign intelligence or counterintelligence activities."
Fisher said he was not asked by any lawmaker to do the report, but rather took the initiative because he has heard people in Congress say they do not know enough about whistleblower protections.
The report also reviews current legislation to strengthen protections for whistleblowers. The Senate has approved one bill. A measure introduced in the House has yet to be reported to the floor for a vote by the full chamber.
Some say that the legislation under consideration, however, does not go far enough.
The National Security Whistleblowers Coalition, for example, has drafted what it calls model legislation to give protections to all federal and contract employees. The coalition includes more than 60 current and former federal and contract workers and advocates on behalf of whistleblowers.
Coalition members are now shopping the proposal around Capitol Hill to find congressional sponsors.
January 10, 2006