DOJ opposes national security whistleblower protections

"We believe that this structure would unconstitutionally restrict the ability of the President to protect from disclosure information that would harm national security."

– Written testimony of Rajesh De, prepared for The House Committee on Oversight and Government Reform hearing, May 14, 2009, on proposed legislation, H.R. 1507, The Whistleblower Protection Enhancement Act of 2009."

The National Whistleblowers Center writes that the policy embraced by the administration "is in stark contrast to the position taken by President Obama during the presidential campaign, which his campaign endorsed judicial protection for all federal employee whistleblowers.  The gory details are provided in a footnote to written testimony by Thomas Devine, Legal Director, Government Accountability Project.

During the campaign, transition and through President Obama’s first day in office, the President posted the following policy: Protect Whistleblowers: Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. We need to empower federal employees as watchdogs of
wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government. Obama will ensure that federal agencies expedite the process for reviewing whistleblower claims and whistleblowers have full access to courts and due process.

since removed from http://www.whitehouse.gov/...

    - Thomas Devine, Government Accountability Project

Arguing most powerfully for giving national security whistleblowers access to federal district courts is the fact that those same courts have successfully heard other kinds of cases involving classified information, such as the case of (convicted) terrorism suspect Jose Padilla.   Clearly, the inequity between due process rights for terorrists and patriotic whistleblowers needs to be addressed.  But, rather than give whistleblowers access to federal courts, the Obama administration is poised to take terrorist cases out of the hands of civilian courts on Friday, a mere day after the hearing on whistleblower protections.

The administration proposes instead to create an "extra-agency mechanism" in which officials from several government agencies would review whistleblower disclosures.  But, since all officials in the Executive Branch answer to the White House, that would not prevent the kinds of problems that plagued the Bush administration.

"Properly structured, a remedial scheme should actually reduce harmful leaks by ensuring that whistleblowers are protected only when they make disclosures to designated Executive Branch officials or through proper channels to Congress. We are pleased that this bill incorporates that limitation. Nonetheless, due to the sensitive nature of the issues involved, we believe that a federal district court review is not the appropriate vehicle for intelligence community whistleblowers. Rather, a better vehicle may well be the extra-agency mechanism within the Executive Branch that we propose to create, or possibly the MSPB."

    - Rajesh De, Department of Justice

Numerous testimonies, including those of the GAO, public interest groups, whistleblowers and whistleblower attorneys, have provided an enormous body of evidence that Executive Branch processes for reviewing whistleblower claims have failed both whistleblowers and the public interest.  That includes administrative courts like the MSPB (Merit Systems Protection Board), which has been a miserable failure in terms of protecting whistleblowers from reprisal.  Administrative remedies have been effective only in silencing whistleblower disclosures and protecting government officials from being held accountable for wrongdoing.

Perhaps the most common MSPB tactic to avoid a whistleblower’s case has been to skip it entirely. In order to "promote judicial economy," the Board commonly "presumes" whistleblowing and retaliation, and then jumps straight to the employer’s affirmative defense that it would have taken the same action even if the whistleblower had remained silent. If the employer prevails, the case is over. Having spent thousands of dollars, the employee who finally gets a hearing is disenfranchised from presenting evidence on the government’s misconduct, or retaliation for challenging it. The whole proceeding is about the employee’s misconduct.