The numerous watchdog groups lobbying for a package of whistle-blower protections attached to the Senate’s defense authorization bill are calling on likely House conferees to agree to the Senate provisions during imminent conference talks.
The groups, which have formed the Make it Safe Coalition, point to recent events suggesting an erosion of 1989’s landmark Whistleblower Protection Act, including the subpoena last month of former National Security Agency (NSA) analyst Russell Tice and a May Supreme Court decision that weakened the free-speech rights of government employees who are subjected to retaliation because they criticize aspects of their jobs.
Invoking the conservative bogeyman of “judicial activism” to blast federal appeals courts ruling against whistle-blower rights, Make it Safe sent talking points Friday to House Armed Services Committee Chairman Duncan Hunter (R-Calif.), ranking Democrat Ike Skelton (Mo.) and 18 other committee members.
“Never before has it been so clear that those who make it safe for America’s families from internal and external threats need state-of-the-art whistle-blower protection to defend themselves. Unfortunately, these employees are the most vulnerable to retaliation,” wrote 36 coalition participants, who represent individuals locked in their own pending whistle-blower cases, as well as open-government and labor groups.
Their battle is an uphill one. Sen. Daniel Akaka (D-Hawaii) has introduced his whistle-blower bill in past Congresses only to see no floor action on it. But a bipartisan cadre of senators, led by Finance Committee Chairman Chuck GrassleyChuck GrassleyRNC head: Dems acting ‘petty’ to Gorsuch Dems delay Senate panel vote on Supreme Court nominee Grassley wants details on firm tied to controversial Trump dossier MORE (R-Iowa), Homeland Security and Governmental Affairs Chairwoman Susan CollinsSusan CollinsSenate braces for fallout over Supreme Court fight Overnight Finance: WH wants to slash billions | Border wall funding likely on hold | Wells Fargo to pay 0M over unauthorized accounts | Dems debate revamping consumer board Lawmakers call for pilot program to test for energy sector vulnerabilities MORE (R-Maine) and ranking Democrat Joe Lieberman (Conn.), helped Akaka secure unanimous consent to add the legislation to the defense authorization bill, which is often a magnet for contentious debate.
A House version of the Akaka bill, which would prohibit retaliatory internal investigations against whistle-blowers and allow them to make classified disclosures to lawmakers and aides with security clearances, has six GOP sponsors, including author Rep. Todd Platts (R-Pa.).
Make it Safe has another influential House ally in Government Reform Committee Chairman Tom Davis (R-Va.), whose panel passed a strong whistle-blower-protection bill in April that Davis and ranking Democrat Henry Waxman (D-Calif.) sought to attach to pending lobbying reform legislation. The coalition asks House defense-authorization conferees to bolster the Senate’s provisions with elements of the Davis bill, including the extension of whistle-blower rights to government contractors who point to possible misuse of taxpayer funds.
“Chairman Davis has expressed his strong preference to conferees that real whistle-blower protections remain in the bill,” Government Reform Committee spokeswoman Andrea LeBlanc said.
Collins said last week that she and Davis were keeping tabs on the whistle-blower provisions and that she is confident the House will accept her committee’s language. “The Supreme Court’s decision lends new urgency to passing [it]… The only issue is whether it belongs on the defense authorization,” she said.
Tice, fired from the NSA last year, has acknowledged that he was a possible source for media reports exposing the agency’s covert warrantless surveillance of Americans’ telephone calls. The government later agreed to postpone Tice’s appearance, originally slated for last week, before a grand jury investigating “possible violations of federal criminal law” tied to the wiretapping leaks.
While Make it Safe members began talking up Tice’s subpoena as proof of the need for stronger whistle-blower-rights laws, Sen. Kit Bond (R-Mo.) introduced a bill just before the recess that would expand the Justice Department’s ability to prosecute whistle-blowers who knowingly leak classified information. The bill, which exempts the media from possible punishment, also would protect government employees’ and contractors’ speech to congressional committees.
“We need to send a message that leaks will not be tolerated and give prosecutors a modern and appropriate tool to go after those who do leak,” Bond said in a statement accompanying his legislation, which has 11 GOP cosponsors, including four chairmen. Bond continues to weigh all available options for moving his bill, including attaching it as an amendment to upcoming legislation, a spokesman for the senator said.
Bond’s bill won an immediate endorsement from the Association For Intelligence Officers, a group of retired officials that aims to educate lawmakers and the public about the importance of clandestine intelligence. Bond has not taken a position on the Akaka-Collins bill despite its dramatically different approach to whistle-blower rights, the Bond spokesman added.
As of press time, the House Armed Services Committee had not returned a request for comment on the fate of the Akaka whistle-blower bill. The panel traditionally does not comment on pending conference issues before a final report is agreed upon.
Among the Make it Safe members signing on to the letter were the American Civil Liberties Union; the American Federation of Government Employees, an AFL-CIO member union representing federal workers; and National Security Whistleblowers Coalition founder Sibel Edmonds, the translator ousted from the Federal Bureau of Investigation (FBI) after airing charges of lax management at the agency.
“We have two conflicting movements in the House and Senate” on whistle-blower issues, Edmonds said in an interview. “On the one hand, you have [Akaka-Collins and Davis’s] bills that have received support from Republicans and Democrats. … On the other hand, you have people like Bond who are going toward the opposite direction, saying, basically, put a gag order on whistle-blowers.”
Whistleblowers fearing punishment from the government for voicing their criticism, Edmonds added, “say, ‘I’m going to leak to the press because I don’t have any appropriate channel to inform the Congress,’” a sentiment that the language in Senate’s defense authorization bill would help combat.