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OpEdNews Op Eds    H2'ed 5/15/09

DOJ opposes national security whistleblower protections

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    – Thomas Devine, Government Accountability Project

This is terribly frustrating for government whistleblowers, based on my conversations with many of them. After all, the reason they blew the whistle in the first place, at the risk of ruined careers, was to draw attention to serious problems that needed correction.

Hearing testimony by Louis Fisher, a Specialist in Constitutional Law for the Law Library of the Library of Congress, provides an authoritative and illuminating overview of the struggle between Presidents, Congress and the Courts over access to whistleblower disclosures.  Here, Fisher describes a little-known, but important law that applies to federal employees.

The executive and legislative branches have long been in conflict about the disclosure of agency information to Congress. Presidents Theodore Roosevelt and William Howard Taft threatened to fire agency employees who attempted to contact Congress. Employees were directed to communicate only through the head of their agency.5 Congress responded in 1912 with the Lloyd-LaFollette Act, nullifying the Roosevelt-Taft "gag orders" by authorizing agency employees to contact lawmakers, committees, and legislative staff.

    – Louis Fisher, Law Library of the Library of Congress

"There has been a misconception for many years about agency whistleblowing. The executive branch has argued that this type of activity is generally permissible for domestic programs but not for national security. It is said that the President has special and exclusive authorities to protect national security information. As my statement explains, this claim is without merit. Congress has coequal duties and responsibilities for the whole of government, domestic and foreign."

    – Louis Fisher, Law Library of the Library of Congress

Other misconceptions are addressed in a Government Accountability Office (GAO) report attached to testimony submitted by attorney David Colapinto. In the March 1996 report, the GAO found that "agencies have overstated the sensitivity of the information contained in the vast majority of adverse action cases." GAO concluded, "Adverse action protections for employees at CIA, NSA, and DIA could be standardized with those of the rest of the federal government without presenting an undue threat to national security."  (Note:  "adverse actions" includes retaliatory firing of whistleblowers.)

I would be remiss if I did not point out that the administration supports other proposed improvements to whistleblower protections [for other federal employees].  But, as Americans seek answers about torture carried out by intelligence agency employees and contractors – reportedly, to coerce justification for an unjustifiable war - the issue of protection for national security whistleblowers never has been more important.

"The Obama administration should not bend to the pressure of the national security bureaucracy. That bureaucracy retaliated against whistleblowers who warned of the 9/11 attack and misled the American people concerning the justifications for invading Iraq."

    - NWC press release

Congressional oversight, repeatedly thwarted by the Bush administration, badly needs resuscitation.

Congress has a constitutional need to have access to national security information and should not be satisfied with what the executive branch, on occasion, decides to share with the lawmakers and their staff. Access is needed to preserve Congress as a coequal and separate branch and to protect its capacity to exercise the checks and balances that are vital to individual liberties and freedoms. Congress has the constitutional authority to devise procedures that will assure access not only to information voluntarily given by the President and his department heads but information made available by agency employees.

    – Louis Fisher, Law Library of the Library of Congress

The importance of whistleblowers to Congressional oversight is well summarized by David Colapinto, who  writes, "As noted in a March 2009 study by the House Committee on the Judiciary, federal employees "are often the first, and perhaps the only, people to see signs of corruption, government misinformation, and political manipulation."

But, those who come forward do so at a great price to their careers and personal welfare, while retaliating officials go unpunished, as Army Corps of Engineers whistleblower Bunnatine Greenhouse acknowledged.

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