Grassley Talks About the Anniversary of the Whistleblower Protection Act
Video of Senator Grassley's floor speech can be found here.
Floor Statement of Ranking Member Grassley of Iowa
U.S. Senate Committee on the Judiciary
Anniversary of the Whistleblower Protection Act
Thursday, April 10, 2014
25 years ago today, the Whistleblower Protection Act of 1989 was signed into law. To mark that anniversary, I wanted to come to the floor to discuss some of the history that led to that legislation, the lessons learned over the past 25 years, and the work that still needs to be done to protect whistleblowers.
The Whistleblower Protection Act was the result of years of efforts to protect federal employees from retaliation. Eleven years before it became law in 1989, Congress tried to protect whistleblowers as part of the Civil Service Reform Act of 1978. I was in the House of Representatives at the time. There, I met Ernie Fitzgerald, who had blown the whistle on the Lockheed C-5 aircraft program going $2.3 billion over budget. Ernie was fired by the Air Force, as he used to say, for the act of “committing truth.” When the Nixon tapes became public after Watergate, they revealed President Nixon personally telling his chief of staff to “get rid of that SOB.” The Civil Service Commission didn’t reinstate Ernie until 12 years later. In the meantime, he was instrumental in helping get the Civil Service Reform Act of 1978 passed.
Yet it soon became clear that law didn’t do enough to protect whistleblowers. In the early 1980s, the percentage of employees who didn’t report government wrongdoing due to fear of retaliation nearly doubled.
Some whistleblowers still had the courage to come forward. In the spring of 1983, I became aware of a document known as the “Spinney Report.” The report exposed the unrealistic assumptions being used by the Pentagon in its defense budgeting. It was written by Chuck Spinney, a civilian analyst in the Defense Department’s Program Evaluation office. I asked to meet with Chuck Spinney, but was stonewalled by the Pentagon. When I threatened a subpoena, we finally got them to agree to a Friday afternoon hearing in March 1983. The Pentagon hoped the hearing would get buried in the end-of-the-week news cycle. Instead, on Monday morning the newsstands featured a painting of Chuck Spinney on the front cover of Time Magazine. It labeled him as a “Pentagon Maverick.” I called him the “conscience of the Pentagon.”
The country owes a debt of gratitude to people like Ernie Fitzgerald and Chuck Spinney. It takes guts to put your career on the line to expose waste and fraud.
In the mid-1980s, we dusted off an old Civil War-era measure known as the False Claims Act as way to encourage whistleblowers to come forward and report fraud. We amended the law in 1986 to create the modern False Claims Act, which has resulted in over $40 billion in taxpayer dollars being recovered for the federal treasury. We made sure when we passed it that it contained very strong whistleblower protections. Those provisions helped to build up support for whistleblowing.
People like Chuck Spinney and Ernie Fitzgerald helped capture the public imagination and showed what whistleblowers could accomplish. However, that didn’t mean the Executive Branch stopped trying to silence them. For example, in the spring of 1987, the Department of Defense asked Ernie to sign a nondisclosure form. It would have prohibited him from giving out “classifiable” information without prior written authorization. That, of course, would have prevented giving it to Congress. Further, the term “classifiable” didn’t only cover currently classified information. It also covered any information that could later become classified. The government-wide nondisclosure form arguably violated the Lloyd-LaFollette Act of 1912. That law states that “the right of employees . . . to furnish information to . . . Congress . . . may not be interfered with or denied.”
Just to make sure, I added the so-called “anti-gag” appropriations rider that passed Congress in December of 1987. It said that no money could be used to enforce any nondisclosure agreement that interferes with the right of individuals to provide information to Congress. It remained in every appropriations bill until 2013. I then worked to get that language into statute in 2012 with the Whistleblower Protection Enhancement Act. By the time of the first anti-gag rider in 1987, there was widespread recognition that all federal employees ought to be protected in disclosing waste and fraud to Congress.
Meanwhile, I had also worked with Senator Levin to co-author what we called the Whistleblower Protection Act. We introduced it in February 1987. There were hearings on our bill in the summer of 1987 and the spring of 1988. It proceeded to pass the Senate by voice vote in August, then the House unanimously in October. After reconciling the differences, we sent the bill to the White House. However, President Reagan failed to sign it. That meant we had to start all over again in the next Congress.
We didn’t let that stop us though. When we reintroduced the bill in January 1989, I came to the floor to make the following statement:
We’re back with this legislation in the 101st Congress, and this time, we’re going to make it stick. Congress passed this bill last fall, after extensive discussions with members of the Reagan administration. But in spite of the compromise we worked out, this bill fell victim to President Reagan’s pocket veto.
Whistleblowers are a very important part of Government operations. By exposing waste, fraud, and abuse, they work to keep Government honest and efficient. And for their loyalty, they are often penalized—they get fired, demoted, and harassed.
. . . Under the current system, the vast majority of employees choose not to disclose the wrongdoing they see. They are afraid of reprisals and the result is a gross waste of taxpayers’ dollars. Government employers should not be allowed to cover up their misdeeds by creating such a hostile environment.
Once again the bill passed the Senate and House without opposition. Working with George H.W. Bush, this time we got the president to sign it. On April 10, 1989, the Whistleblower Protection Act became law.
Whistleblower Protections for the Intelligence Community
We left part of the work undone 25 years ago. The Civil Service Reform Act of 1978 had exceptions for the FBI, the CIA, the NSA, and the other parts of the intelligence community.
The Whistleblower Protection Act left employees of those agencies unprotected, and so have the laws that followed it.
Back in 2012, I championed the addition of intelligence whistleblower protections to the Whistleblower Protection Enhancement Act. The provision I authored prohibited various forms of retaliation, including changing an employee’s access to classified information. Working closely with the Senate Select Committee on Intelligence, we got that language into the bill that passed the Senate by unanimous consent on May 8, 2012. However, it was not included in the bill the House passed on September 28, 2012.
Prior to the differences being reconciled, on October 10, 2012, President Obama issued Presidential Policy Directive 19. It provided certain limited protections for whistleblowers with access to classified information. However, it was weaker than the provisions I had authored in the Whistleblower Protection Enhancement Act. Unfortunately, President Obama’s action undercut support for those provisions by suggesting that statutory protection was now unnecessary. The final law that passed in November left intelligence whistleblowers at the mercy of the presidential directive.
Now, much of the language I had championed is in the version of the intelligence authorization bill that was passed by the Senate last November. It is certainly a step up from Presidential Policy Directive 19. Making any protections statutory is significant. The Senate-passed authorization bill also has better substantive protections than the presidential directive.
It does still have some gray area. It leaves some of the policy and procedure development to the discretion of the Executive Branch. In 1989, we did a similar thing with the FBI. The protections of the Whistleblower Protection Act didn’t apply to the FBI. Yet that law did require the Attorney General to implement regulations for FBI whistleblowers consistent with those in the Whistleblower Protection Act. However, it soon became clear that was a little like putting the fox in charge of the henhouse. The Justice Department and the FBI simply ignored that part of the law for nearly 10 years. Not until 1997 did the Attorney General finally implement regulations for whistleblowers in the FBI.
The Justice Department was pushed into finally issuing those regulations by an FBI employee named Dr. Fred Whitehurst. Dr. Whitehurst was considered by the FBI to be its leading forensic explosives expert in the 1990s. Shortly after the Whistleblower Protection Act was passed in 1989, he disclosed major problems with the FBI Crime Lab. From 1990 to 1995, he wrote close to 250 letters to the Justice Department Inspector General about these problems. In January of 1996, he formally requested that the President implement regulations as required by the Whistleblower Protection Act. Only after Fred was suspended in early 1997 did the White House finally issue such a memo to the Attorney General. It instructed her to create a process for FBI whistleblowers as directed by the Whistleblower Protection Act. Fred’s case dragged on for another year until the FBI finally agreed to settle with him in February 1998.
Fred Whitehurst is not alone. Over the years, others such as Mike German, Bassem Youssef, Jane Turner, and Robert Kobus have blown the whistle from within the FBI. Even after the Inspector General issued findings in their favor, several had to navigate a never ending, Kafka-esque internal appeals process. It seems designed to grind them into submission through years of inaction.
Now history has started to repeat itself. As Congress was passing the Whistleblower Protection Enhancement Act in 2012, President Obama issued Presidential Policy Directive 19. It tasked Attorney General Holder with reevaluating the same FBI whistleblower procedures that Fred Whitehurst helped get in place in 1997. The Attorney General was given 6 months to report back. When he didn’t issue that report at the 6-month mark, I asked the Government Accountability Office to do its own, independent evaluation of FBI whistleblower protections. Now, 18 months after the President’s directive, Attorney General Holder still hasn’t released his report. Potential whistleblowers should not have to wait a decade, as they did with the first set of regulations. It appears that the Justice Department is simply sitting on its hands once again.
The example of the FBI should be instructive. Unlike the Whistleblower Protection Act, any statutory intelligence whistleblower provisions must be much more detailed about the protections Congress intends.
Meanwhile, the FBI fiercely resists any efforts at Congressional oversight, especially on whistleblower matters. For example, four months ago I sent a letter to the FBI requesting its training materials on the Insider Threat Program. This program was announced by the Obama Administration in October 2011. It was intended to train federal employees to watch out for insider threats among their colleagues. Public news reports indicated that this program might not do enough to distinguish between true insider threats and legitimate whistleblowers. I relayed these concerns in my letter. I also asked for copies of the training materials. I said I wanted to examine whether they adequately distinguished between insider threats and whistleblowers.
In response, an FBI legislative affairs official told my staff that a briefing might be the best way to answer my questions. It was scheduled for last week. Staff for both Chairman Leahy and I attended, and the FBI brought the head of their Insider Threat Program. Yet the FBI didn’t bring the Insider Threat training materials as we had requested. However, the head of the Insider Threat Program told the staff that there was no need to worry about whistleblower communications. He said whistleblowers had to register in order to be protected, and the Insider Threat Program would know to just avoid those people.
Now I have never heard of whistleblowers being required to “register” in order to be protected. The idea of such a requirement should be pretty alarming to all Americans. Sometimes confidentiality is the best protection a whistleblower has. Unfortunately, neither my staff nor Chairman Leahy’s staff was able to learn more, because only about ten minutes into the briefing, the FBI abruptly walked out. FBI officials simply refused to discuss any whistleblower implications in its Insider Threat Program and left the room. These are clearly not the actions of an agency that is genuinely open to whistleblowers or whistleblower protection.
Like the FBI, the intelligence community has to confront the same issue of distinguishing a true insider threat from a legitimate whistleblower. This issue could be impacted by both the House- and Senate-passed versions of the intelligence authorization. Both include language about continuous monitoring of security clearance holders, particularly the House version.
Director of National Intelligence James Clapper seems to have talked about such procedures when he appeared before the Senate Armed Services Committee on February 11, 2014. In his testimony, he said:
We are going to proliferate deployment of auditing and monitoring capabilities to enhance our insider threat detection. We’re going to need to change our security clearance process to a system of continuous evaluation. . . . What we need is . . . a system of continuous evaluation, where . . . we have a way of monitoring their behavior, both their electronic behavior on the job as well as off the job, to see if there is a potential clearance issue. . . .
Director Clapper’s testimony gives me major pause. It sounds as though this type of monitoring would likely capture the activity of whistleblowers communicating with Congress.
To be clear, I believe the federal government is within its rights in monitoring employee activity on work computers. That applies all the more in the intelligence context. However, as I testified before the House Oversight and Government Reform Committee recently, there are areas where the Executive Branch should be very cautious. The House Oversight Committee held a hearing on electronic monitoring that the U.S. Food and Drug Administration had done of certain whistleblowers in the agency. This monitoring was not limited to work-related activity. The FDA allows its employees to check personal email accounts at work. As a result, its whistleblower monitoring captured personal email account passwords. It also captured attorney-client communications and confidential communications to Congress and the Office of Special Counsel. Some of these communications are legally protected.
If an agency captures such communications as the result of monitoring, it needs to think about how to handle them differently. Otherwise, it would be the ideal tool to identify and retaliate against whistleblowers. Without precautions, that kind of monitoring could effectively shut down legitimate whistleblower communications. There could be safeguards, however. For example, whistleblower communications could be segregated from other communications. Only limited groups could have access rather than all of upper management. In any case, whistleblowing disclosures to Congress or the Special Counsel can’t just be routed back to the official accused of wrongdoing.
As the 1990 Executive Order made clear, whistleblowing is a federal employee’s duty. It should be considered part of their official responsibilities, and something they can do on work time. However, that doesn’t mean they aren’t allowed to make their protected disclosures confidentially, to protect against retaliation. A federal employee has every right to make protected disclosures anonymously, whether at work or off the job. Every member of this body should realize that without some safeguards, there is a chance their communications with whistleblowers may be viewed by the Executive Branch.
These same considerations apply in the intelligence community. The potential problems are heightened if electronic monitoring extends off the job, such as Director Clapper mentioned. We have to balance detecting insider threats with letting whistleblowers know that their legitimate whistleblower communications are protected. With continuous monitoring in place, any whistleblower would understand that their communications with the Inspector General or Congress would likely be seen by their agency. They might perhaps even be seen by those they believe are responsible for waste, fraud or abuse. That leaves the whistleblowers open to retaliation. Even with the protections in this bill, we should all understand that it’s difficult to prevent retaliation. It requires a lengthy process for an individual to try and prove the retaliation and get any remedy. It’s far better where possible to take precautions that prevent the likelihood of retaliation even occurring. Otherwise, we will make it virtually impossible for there even to be such a thing as an intelligence community whistleblower. Fraud and waste will go unreported. No one will dare take the risk.
Value of Whistleblowers
To return to the theme I started on, whistleblowers need protection from retaliation today just as much as they did 25 years ago when we passed the Whistleblower Protection Act. I’ve always said whistleblowers are too often treated like a skunk at a picnic. However, 25 years after the Whistleblower Protection Act, the data on whistleblowing is in, and the debate on whether to protect whistleblowers is over. There is widespread public recognition that whistleblowers perform a valuable public service.
Earlier this year, PricewaterhouseCoopers found that 31% of serious fraud globally was detected by whistleblowing systems or tip-offs. According to a 2012 report from another organization, that number is even higher when looking just in the U.S., with 51% of fraud tips coming from a company’s own employees. In 2013, of U.S. workers who had observed misconduct and blown the whistle, 40% said that the existence of whistleblower protections had made them more likely to report misconduct.
Whistleblowers are particularly vital in government, where bureaucrats only seem to work overtime when it comes to resisting transparency and accountability. A year and a half after the Whistleblower Protection Act, President Bush issued an Executive Order in 1990 that said that all federal employees “shall disclose waste, fraud, abuse and corruption to appropriate authorities.” Federal employees are still under that obligation today. They are fulfilling a civic duty when they blow the whistle. I have encouraged President Reagan and every president after him that we ought to have a Rose Garden ceremony honoring whistleblowers. Unfortunately, that has not happened.
Further, while the Obama Administration promised to be the most transparent in history, it has instead cracked down on whistleblowers like never before. Last week the Supreme Court denied a petition to hear an appeal from a case named Kaplan v. Conyers. The Obama Administration’s position in that case, if allowed to stand, means untold numbers of federal employees may lose some of the very same appeal rights we tried to strengthen in the Whistleblower Protection Act. It could be half or more of federal employees impacted. Such a situation would undo 130 years of protection for civil servants, dating back to the Pendleton Civil Service Reform Act of 1883. President Obama promised to ensure that whistleblowers have full access to courts and due process. However, his Administration has pursued the exact opposite goal here. That is unacceptable.
I think it’s important to send a loud and clear signal that waste, fraud, and abuse won’t be tolerated in government. That’s why I’m pleased to announce that I will be forming a whistleblower protection caucus. I’ll be talking to my colleagues at the beginning of the 114th Congress. Until then, I’ll be talking to my colleagues and encouraging them to join me as we start putting together an agenda for the caucus in the new Congress. As we celebrate the 25th anniversary of the Whistleblower Protection Act, we should all recognize whistleblowers for the sacrifices they make. Those that fight waste, fraud, and abuse in government should be lauded for their patriotism.
Whistleblower protections are only worth anything if they’re enforced. Just because we’ve passed good laws does not mean we can stop paying attention to the issue. There must be vigilant oversight by Congress. The best protection for a whistleblower is a culture of understanding and respecting the right to blow the whistle. I hope this whistleblower caucus will send the message that Congress expects that kind of culture. I call on my colleagues to help me make sure that whistleblowers continue to receive the kind of protection they need and deserve.