Friday, Aug 29, 2008
Thanks to a glaring legal loophole and a hostile Justice Department, a federal employee who revealed that U.S. nuclear facilities were unsafe found his career and life ruined. And many other whistle-blowers share his fate.
Oct 21, 2003 | Time magazine dubbed 2002 "The Year of the Whistleblower," honoring inside do-gooders who risked their careers by exposing, among other things, how the FBI let a key terrorism suspect slip through its fingers before the 9/11 attacks and by blowing the lid off Enron's outrageous financial crimes. Since the terror attacks, the critical importance of revealing governmental failures has become obvious: A breakdown in homeland security could mean catastrophe. Indeed, precisely that scenario is laid out in the current issue of Vanity Fair, which features an exposé about federal whistle-blowers who lay bare the shocking vulnerability of America's nuclear weapons laboratories at Los Alamos to terrorist attack, as well as the ongoing failures of airline and airport security. Several of those same whistle-blowers will soon tell their tale on "60 Minutes."
In recent years, aided in part by movies like "The Insider," whistle-blowers have attained the status of folk heroes. "It's become popular to protect whistle-blowers -- that's never happened before," says Danielle Brian, executive director of the Project on Government Oversight, a nonprofit public interest group dedicated to exposing governmental corruption and mismanagement that works closely with whistle-blowers and that advocates for them.
As a result, most people probably assume that federal whistle-blowers now enjoy strong legal protection against retaliation.
They're wrong. Many federal whistle-blowers -- including the one who exposed the security flaws at U.S. nuclear plants -- have had their careers destroyed because of a glaring loophole in the law designed to protect them: If their security clearances are revoked, as frequently happens to whistle-blowers, the special federal agency that investigates their cases has no power to restore it -- and the federal appeals court that is their last recourse is a kangaroo court that almost never rules in their favor. Even if a whistle-blower is vindicated, the crucial security status is often not restored -- in effect ending a career.
Since the Whistleblower Protection Act, or WPA, was unanimously passed in 1989 (and then strengthened in 1994) to protect whistle-blowers against on-the-job retaliation, the U.S. Court of Appeals for the Federal Circuit, the unique court that handles government-contract disputes, has continuously narrowed the rights of whistle-blowers and ruled against them in nearly every case, according to the Government Accountability Project, a public advocacy group.
Experts variously describe what happens to whistle-blowers when they enter the bureaucratic and judicial process as "a Twilight Zone," "Kafka-esque," and "Chinese water torture."
"It's a big loophole in the law," says Elaine Kaplan, the former head of the Office of Special Counsel, or OSC, the independent federal agency that investigates whistle-blower cases. "It's not the most satisfying system."
New legislation, with bipartisan support in the House and Senate, will attempt to close the loopholes.
"The Whistleblower Protection Act was passed to ensure employees who come forward will be free from harassment for doing the right thing," says Rep. Todd Platts, R-Pa., who introduced the new bill in the House of Representatives. "But the court has changed the intent of Congress in such dramatic fashion, to the point where there is significant disincentive for coming forward with information."
The Department of Justice opposes the bill, calling it unconstitutional. Defending the right of various federal agencies to decide who does and does not get security clearance, the DOJ frames the issue as one of executive-branch power -- the president, as head of the government, trumps a personnel arbitration court like the OSC. In the DOJ's view, security clearance is a privilege, not a right that can be won back in court
The DOJ and other critics of the pending legislation also argue that many federal employees facing legitimate sanctions would claim they were being punished for whistle-blowing, causing turmoil in the workplace.
"The ease with which Federal employees would be able to establish a prima facie case of whistle-blower reprisal, no matter how frivolous, would seriously impair the ability of Federal managers to effectively and efficiently manage the workforce," wrote William Moschella, an assistant attorney general, outlining the department's opposition.
Advocates deride these arguments. They insist that independent review of security clearance rulings is essential because bureaucracies, by their nature, almost always retaliate against whistle-blowers. And they say the DOJ claim that employees would frivolously invoke the law is grossly overstated.
"Historically, the Department of Justice has been hostile to whistle-blowers," says Brian. "On a simple level, they're seen as an annoyance, because Justice represents government agencies embarrassed by whistle-blowers. As for frivolous cases clogging the workplace, I've been doing this for a long time, and yes, there's an element of people who call themselves whistle-blowers who have sour grapes. But to suggest that's a big enough percentage so as to not have actual protection is ridiculous. It's a red herring."
Many former and current federal employees who have spoken out say that the system is so rigged against them that if they were deciding whether to do it again, they wouldn't.
"What I have learned is, don't do the right thing -- don't try to protect the American people when you see that they are in danger, because the law won't protect you," says Bogdan Dzakovic, a whistle-blower within the FAA who tried to air warnings about lax airline security years before the 9/11 attacks. He considers himself lucky: He's still got a job with the FAA and collects a government paycheck. But he spends his time doing menial tasks. "My career is over," he says.
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