Lawmakers say TSA whistleblower rights provision goes too far

If language in a rail security bill is enacted, whistleblowers could gain an unfair advantage in cases alleging retaliation, panel members say.

Republicans on the House Homeland Security Committee repeatedly expressed concern Tuesday that if Transportation Security Administration employees gain enhanced whistleblower rights, they might use them to intimidate managers.

The rights would be granted as part of the 2007 Rail and Public Transportation Security Act. It would grant TSA and Transportation Department workers protection against retaliation should they act as whistleblowers and report security risks or violations.

American Federation of Government Employees spokeswoman Emily Ryan said TSA employees "have virtually no protection" right now.

Lawmakers also said court privileges granted by the bill, which the House Homeland Security Subcommittee on Transportation Security and Infrastructure Protection passed last week, may extend too far.

The legislation would allow an advantage in court for TSA employees who claim retaliation for reporting potential waste, fraud or abuse, said Rep. Dan Lungren, R-Calif. Should the government's case rely on classified or sensitive information that officials argue cannot be disclosed, the claimant automatically would win, he said.

Richard Falkenrath, deputy commissioner for counterterrorism for the New York City Police Department, testified that if Lungren is correct, it would be "very troubling." But Falkenrath declined to comment further on the issue.

Rep. Charlie Dent, R-Pa., said TSA managers will also be "made passive" by the whistleblower rights segment of the bill. He expressed concern that managers would be exposed to potentially frivolous complaints.

The bill also aims to strengthen security by adding more rail inspectors, ensuring that private sector and local entities better train rail workers and expanding intelligence sharing between TSA and the Transportation Department. Specifically, the measure would push the Homeland Security Department to add 500 rail inspectors by 2010. Currently, there are 100 nationwide.

The legislation would authorize a $600-million-per-year rail security fund for fiscal 2008 through 2011, as well as a smaller package for bus security. Amtrak would be authorized to receive a total of $140 million over the same time period to improve its tunnels; $200 million could be spent on research and development of technology.

Democrats on the committee published a report last summer that harshly criticized TSA spending and said rail security is inadequate.

Since the summer, TSA has sent behavioral experts to airports nationwide in an attempt to pick up on terrorists' physical cues. TSA Assistant Secretary Kip Hawley called the technique "one of two valuable components" to catching terrorists.

But Falkenrath told lawmakers NYPD cannot use the tactic on rail systems, in part because of constraints imposed by the sheer volume of commuters traveling in the city.