According to the United Nations High Commissioner for Refugees (UNHCR), the 1967 Protocol overriding limitations by date of the 1951 Geneva Convention, serves with that Convention as “the principal international instruments established for the protection of refugees and their basic character has been widely recognized internationally.” The UNHCR promotes “international instruments for the protection of refugees and supervis(es) their application.” Were there an American counterpart to this U. N. official, charged with protecting government whistleblowers, he or she would undoubtedly endorse No FEAR II as that proposed legislation was showcased during Whistleblower Week in Washington, D. C. (WWW), May 13-19, 2007.
Upon enactment by Congress, No FEAR II would amend the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002. Apparent loopholes would close as a result that thwart proper enforcement of various antidiscrimination and government whistleblower protection laws. Even conscientious federal managers can find themselves lacking incentive to comply with those laws under current No FEAR provisions.
In addition to imposing relevant notification, training, and reporting requirements, the No FEAR Act of 2002 obliges federal agencies to pay from their operating budgets, respective judgments and settlements prompted by the unlawful discrimination, retaliation, and/or harassment of their managers. Of course to establish that misconduct, its alleged victims run a gauntlet of costly legal proceedings that should be supervised much like the UNHCR is to oversee applications of international instruments to protect refugees from persecution for unpopular speech. In fact the citizen tribunal convened as part of WWW on Capitol Hill to commemorate No FEAR’s fifth anniversary by receiving statements of support for No FEAR II was alerted to the prospect of judicial misconduct undermining federal workforce rights. Clearly it could not be “due process” ushering employees and contract workers into a second and sometimes third decade of related adjudications. Moreover judges are too often their fact finders, resolving the substantial disputes of these government critics without jury trials.
As currently proposed, No FEAR II submits that agencies engaged “in discrimination, retaliation, harassment or violations of federal (anti-discrimination) and/or whistleblower (protection) laws undermine the confidence of the American people in the Government, put the (public’s) safety and services at risk, and reduces the Federal Government’s ability to timely and adequately address vital public needs.” Yet ostracized and perhaps emotionally and/or financially devastated individuals are largely left to their own devices to expose such unlawfulness. Hopefully the No FEAR Citizen Tribunal will consider and address whether the difficulties of these contemporary heroes are exacerbated by quasi-judicial agencies and/or courts.
Refugees unable to avail themselves of protection from persecution for unpopular opinions in their own country may seek asylum and find themselves welcomed by foreign nations. Government whistleblowers among America’s federal workforce are not truly availed of protection afforded their speech (including EEO complaints) by Congress through protracted, costly, and questionable legal proceedings. They need some form of asylum and the present formulation of No FEAR II provides much of that counterweight. Thanks to events like WWW and hopefully the citizen tribunal report and congressional hearings to follow, it should be abundantly clear that the time for No FEAR II has long come.
Zena D. Crenshaw is Executive Director of National Judicial Conduct and Disability Law Project, Inc., a nonprofit legal reform organization that combats judicial misconduct. She allegedly suffered reprisals as a private lawyer upon trying to prove collusion between various judges and a multi-billion dollar drug manufacturer. (see: www.focus-on-indiana.org )