After d***king around for 12 years, yesterday, Congress finally passed the Whistleblower Protection Enhancement Act (WPEA), a bill that strengthens protections for many federal employee whistleblowers.
While the bill is an important step toward gaining meaningful protections for government whistleblowers, it will not help many of my clients, like National Security Agency (NSA) whistleblower Thomas Drake or Central Intelligence Agency Whistleblower John Kiriakou. Drake and Kiriakou blew the whistle on two of the biggest scandals of my generation, warrantless domestic surveillance and torture. Considering the lengths to which the government will abuse the classification system to keep secret embarrassing or illegal conduct, Intelligence Community whistleblowers are often who the public most needs to hear from. Yet, Congress excluded them from the WPEA, even though Intelligence Community whistleblowers currently have no existing meaningful legal protections.
“It would be dishonest to say our work is done, however, or to deny that government whistleblower rights are still second class compared to those in the private sector,” he said. “House Republicans blocked two cornerstones of the legislation: jury trials to enforce newly-enacted protections, and extension of free speech rights to national security workers making disclosures within agency channels.”
Obama's recent Presidential Policy Directive prohibiting retaliation against Intelligence Community whistleblowers declares an important principle, but it provides no enforceable protections. There are no due process rights in the directive, and it keeps review entirely within the Executive Branch. As every first year law student learns: There is no right without a remedy.
Until Intelligence Community whistleblowers have safe, effective channels to report fraud, waste, abuse, or illegality and meaningful remedies for retaliation, fear of professional retaliation or criminal investigation (considering Drake and Kiriakou were prosecuted under the Espionage Act) will keep many whistleblowers silent.
Nonetheless, for millions of government whistleblowers outside the Intelligence Community, the WPEA will provide unprecedented protection. Here is a summary of summary of the protections passed in WPEA, which include
* Closes judicially-created loopholes that had removed protection for the most common whistleblowing scenarios and left only token rights (e.g. only providing rights when whistleblowers are the first to report misconduct, and only if it is unconnected to their job duties). (Sec. 101, 102)The WPEA is a welcome first step, and Congress deserves credit for taking action to protect whistleblowers. But, without ensuring protections for Intelligence Community whistleblowers like Thomas Drake and John Kiriakou, Congress leaves a big gaping hole in what is otherwise a positive move toward increased accountability.
* Clarifies that whistleblowers are protected for challenging the consequences of government policy decisions. (Sec. 101, 102)
* Protects government scientists who challenge censorship. (Sec. 110)
* Suspends the Federal Circuit Court of Appeals' sole jurisdiction on appellate review of the WPA in light of its consistent track record of narrowing the law's protections. (The Court has a 3-226 record from October 1994 – May 2012 against whistleblowers for decisions on the merits), restoring all-Circuit review for a two-year experiment as mandated in the original 1978 Civil Service Reform Act and the Administrative Procedures Act. (Sec. 108)
* Establishes explicit whistleblower protections for Transportation Security Administration employees. (Sec. 109)
* Provides compensatory damages for prevailing whistleblowers under WPA cases that prevail after an administrative hearing, (Sec. 107(b)), including retaliatory investigations (Sec. 104(c)).