When it comes to free-speech protections for federal employees, the Constitution sometimes isn’t quite enough.
As far back as 1912, Congress began work to ensure that federal agency workers wanting to blow the whistle on excesses and missteps were protected from retaliation. In addition to a raft of laws, Congress over the years has laid down protections in the Merit Systems Protection Board, established an Office of Special Counsel for whistleblowers in trouble, and even given a new federal appellate court it created in 1982 exclusive jurisdiction over litigation arising from whistleblower cases.
Why all this concern for bureaucratic tattletales? Because they have served as a constant and valuable check on the federal government. As Louis Fisher writes in “National Security Whistleblowers,” a new Congressional Research Service report:
“Over the years, agency employees have received credit for revealing problems of defense cost overruns, unsafe nuclear power plant conditions, questionable drugs approved for marketing, contract illegalities and improprieties, and regulatory corruption.”
From the top down, whistleblowers have received high praise, even from presidents, for their service in improving government, according to Fisher.
President Jimmy Carter, in fact, proposed the Office of Special Counsel to protect whistleblowers “who expose gross management errors and abuses.”
President Ronald Reagan saluted whistleblowers and promised them protection for reporting illegal or wasteful activities. They “must be assured that when they ‘blow the whistle’ they will be protected and their information properly investigated,” he said. (Later, President Reagan turned back the first Whistleblower Protection Act passed by Congress.)
President George H.W. Bush said that “a true whistleblower is a public servant of the highest order,” and that “these dedicated men and women should not be fired or rebuked or suffer financially for their honesty and good judgment.”
But suffer they have.
According to Fisher’s report, whistleblowers rarely have won when they’ve taken their cases to the Merit Systems Protection Board, the Office of Special Counsel, or even the courts. Instead, whistleblowers routinely have faced firing, transfers, reprimands, loss of promotion and harassment, not to mention criminal sanctions in some instances.
A House committee taking up amendments to the Whistleblowers Protection Act in 1994 reported that though the act “is the strongest free speech law that exists on paper, it has been a counterproductive disaster in practice. The WPA has created new reprisal victims at a far greater pace than it is protecting them.”
That woeful record continues today.
Consider, for instance, the travails of Sibel Edmonds, the former FBI translator who was fired after she went public with claims of security violations, mismanagement and possible spying within the FBI department translating documents vital to the war on terror.
Another whistleblower, Bunny Greenhouse, was demoted from the top procurement post at the U.S. Army Corps of Engineers after she challenged the process by which a subsidiary of Halliburton won multibillion dollar contracts just before the war in Iraq.
Similar troubles were in store for the Army general who disputed his superiors’ troop-strength projections for the Iraq war, the Medicare expert who tried to tell Congress about the real costs of new drug subsidies, and the government climate specialist who was disciplined for pointing out that political appointees were manipulating global-warming data.
Little wonder that whistleblowers more often go the press, which has a better record of protecting them than boards, special counsels, the courts, members of Congress — or their bosses.
But even going to the press is not all that safe. The Justice Department has just launched a criminal investigation to track down anyone who leaked information to The New York Times about the National Security Agency’s super-secret monitoring of telephone calls and e-mails from within the United States.
In another investigation, a special counsel in the Justice Department has been trying for two years to find out who in the White House leaked the name of CIA operative Valerie Plame to columnist Robert Novak. The prosecutor was able to force some journalists to testify before a grand jury and to send one reporter to prison for refusing to testify.
And the CIA general counsel’s office has taken the first step for yet another probe by notifying the Justice Department that someone in the government revealed classified information about “black site” interrogation centers in Eastern Europe to The Washington Post.
No one knows how many whistleblowers who have shared information with journalists are looking over their shoulders right now. For example, the Times relied on a dozen or so current and former government officials for its coverage of the NSA surveillance.
Now, a prominent attorney warns there could be further erosion of the press’s ability to help whistleblowers offer information about government abuse, mistakes and violations of the law. Harvey Silverglate, who represented several parties in the Pentagon Papers case in the 1970s, says in a recent article in the Boston Phoenix that the laws and court decisions are such that newspapers, reporters, editors and publishers “are at serious risk of indictment” in leak investigations.
When laws, regulations, courts and the Constitution itself are not enough to protect freedom of speech and freedom of the press, there is more than just good government at risk.
Paul K. McMasters is First Amendment ombudsman at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail: email@example.com.