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Time to protect whistleblowers

By Notra Trulock
web posted April 30, 2001

On his first day in office, President George W. Bush issued an order outlining his expectations of the standards for conduct for members of his administration. The order reaffirms the need to adhere to the Standards of Ethnical Conduct for Employees of the Executive Branch and the importance of disclosing "waste, fraud, abuse and corruption to the appropriate authorities." A cynic might reasonably ask "so what?" All presidents will assert that their administration will be free of scandal and disgrace. After all, even President Clinton announced that his would be the most ethical administration in history.

One measure of President Bush's performance will be his response to a call to reestablish a safe harbor for Federal whistleblowers. Nothing would send a stronger message to a federal bureaucracy corrupted by eight years of the Clinton Administration that harassment and retaliation against whistleblowers would no longer be tolerated.

A broad and growing coalition, composed of organizations as diverse as the National Organization for Women, the AFL-CIO, and the Free Congress Foundation, is petitioning the White House and the Congress to restore the Whistleblower Protection Act to its original intent and purpose. During the Clinton Administration, a hyperactive Federal Court of Appeals gutted the Act and Clinton political appointees, fearful of public disclosure of misdeeds and waste, encouraged an already hostile Federal bureaucracy to wage open warfare on whistleblowers. During the past eight years, the real victims of the "politics of personal destruction" were those federal employees willing to buck the system to expose waste, fraud and abuse at the United Nations, incompetence and fraud at the FBI laboratory, security vulnerabilities at our nuclear weapons labs, a farm-loan scandal at the Department of Agriculture, the email scandal in the White House, and corruption in the Immigration and Naturalization Service to name just a few.

During the Clinton Administration, whistleblowers saw their careers shattered, their professional and personal reputations destroyed, and their families subjected to enormous stresses. One well-known whistleblower, Frederic Whitehurst, has candidly discussed the personal toil his decision imposed on his family. Most whistleblowers undergo similar experiences. But retaliation and harassment doesn't stop when whistleblowers leave government.

Just ask Jennifer Long, the IRS whistleblower. Her testimony, confirmed by others, eventually forced Clinton to sign a law that put some limits on IRS powers and exposed it to more outside review. For her efforts on behalf of American taxpayers, the IRS tried to fire her. Senator Charles Grassley, R-IA, put a stop to that. But now the IRS has extended its retaliation by interfering with her application for a certified public accountant's license. The Associated Press obtained an IRS letter intended for delivery to the licensing board containing derogatory information about her performance as an IRS tax auditor. When questioned about the smear campaign against Long by the AP, the IRS refused to comment citing "employee privacy." This is a tried and true Clinton technique: federal officials would "anonymously" leak derogatory information to the media, then cite employee privacy in response to efforts to refute the smears. IRS Commissioner Charles Rossotti, a Clinton holdover, rejected allegations of retaliation in an AP interview. "I can tell you I am personally certain that none of these people were retaliated against and all have been treated fairly", he told the AP. How reassuring.

Long's experience parallels my own. The Energy Department pressured my private sector employer, who had big government contracts with DOE, to "terminate" me. That employer then compounded this by falsely alleging that I had been dismissed for "misconduct." Whistleblowers are hounded - with impunity -- not only inside the government, but even when they try to get into the private sector.

And why not? There are no protections for whistleblowers. The Whistleblowers Protection Act tortures whistleblowers with a protracted administrative obstacle course; it has been reported that only a handful of nearly 1500 Federal employees actually made it through in recent years. The rest were "screened out" on technical grounds.

Assuming Feds make it through this, they face near-certain reversal at the hands of the Federal Circuit Appeals Court. Chaired by a Clinton appointee, this court is a textbook example of a judiciary running wild. In its decisions, this court has reversed the mandates of the WPA. Incredibly, this court has ordered the government to search for incriminating evidence against the whistleblower to determine why the person blew the whistle in the first place! This is Kafkaesque, to say the least, and is compounded by the government's latitude to classify everything after the fact, so as to prevent public disclosure of wrongdoing. Naturally, this opens whistleblowers to allegations of compromising national security.

This is another reason that Clinton holdovers are of such concern. Many federal managers obtained their positions over the last eight years by looking the other way or even executing the Administration's will to harass and retaliate against whistleblowers. It isn't just a coincidence that during the Clinton Administration the Government Employee's Code of Ethics was removed from the US Code. These holdovers have powerful incentives to cover up their actions and to bury the truths that whistleblowers sought to bring to the attention of the appropriate authorities. Whistleblowing statues and regulations will be worthless until these managers are weeded out of the federal bureaucracy. To its peril, the Bush Administration simply is not displaying enough vigor in rooting out one of the key legacies of Clinton: holdovers with a vested interest in burying evidence of their own corruption and misdeeds.

Notra Trulock is the Director of Media Relations at the Free Congress Foundation. He is a former Director of Intelligence at the U.S. Department of Energy.

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