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REP. TOWNS: (Sounds gavel.) Committee will come to order. First of all, I will welcome my Ranking Member Issa. Today's hearing is entitled, "Protecting the Public from Waste, Fraud, and Abuse: The Whistleblower Protection Enhancement Act of 2009."
Today's hearing is entitled, of course, protecting public from waste. H.R. 1507 is an important piece of legislation. This committee has reported favorably similar legislation, on a bipartisan basis, in each of the last two Congresses.
The House of Representatives has twice passed similar bills, once in 2007 with 331 votes, and again as a bipartisan amendment to the stimulus legislation, earlier this year. Unfortunately, the stimulus amendment was removed in conference with the Senate.
However, this provides us with the opportunity to hear from the new administration on this reform, to work and engage them on possible change to the bill, and to consider the ongoing need for strong whistleblower protections.
I want to thank Representatives Van Hollen and Platts for their efforts to support government whistleblowers. As this committee has long-recognized, enhancing whistleblower protections helps us to fulfill our role of bringing about more honest, accountable, and effective government for the American people.
Whistleblowers risk their careers to challenge abuses of power and gross waste of government resources. At a time when America needs the best value for every dollar spent, we need these protections now more than ever. This is particularly true now that billions of stimulus dollars, and billions more aimed at stabilizing the financial system, are at stake.
H.R. 1507 will ensure that the federal employees responsible for monitoring the financial recovery programs are not deterred from reporting mismanagement of taxpayer dollars. Government employees are often in the best position to call attention to the illegality or waste because they witness that what is happening inside the government on a day-to-day basis.
Unfortunately, as we will hear today, under the current inadequate system, whistleblowers have too often been left out to dry, instead of being rewarded for their courage, they are actually being destroyed in some instances. Over the last decade, legal victories for public employees have been almost non-existent.
Employees have been fired and disciplined for disclosing evidence of waste, fraud, and abuse simply because an administrative judge determined it was part of their job to do so. That's contrary to the whole point of the whistleblower law.
If passed, H.R. 1507 would take a landmark step in restoring Congress' intent to protect employees from retaliation. Importantly, H.R. 1507 also extends strong whistleblower protections to employees of government contractors.
Congress wisely included similar protections for private recipients of stimulus funds. However, no similar safeguard was included when Congress passed the bailout last fall. This bill would extend the right to disclose waste, fraud, and abuse without fear of retaliation to employees of all government contractors, including those who accepted bailout funds.
The Oversight Committee has documented the accountability and transparency shortcomings of the TARP program, and we will continue to do so. However, by empowering insiders to disclose any financial misconduct, this legislation provides an immediate accountability fix to that program.
Lastly, whistleblowers' protections are important not only in safeguarding America's tax dollars we need them to better protect our families. Toward this end, we have worked closely with the House Intelligence Committee in drafting strong whistleblower protections for national security personnel.
Since September 11, 2001, it has become more and more evident that national security personnel need to be able to sound the alarm effectively, without fear of reprisal, and without having to turn to the media in order to do so. We need to provide national security personnel with safe, responsible channels for disclosing evidence of waste, fraud, and abuse.
H.R. 1507 also provides these employees with a meaningful remedy if they are retaliated against, something that does not exist under current law. This is an important aspect of the legislation that will strengthen the national security of the country.
And I look forward to hearing more from our witnesses on this issue. We are pleased that the administration is testifying today to express the president's support for the principles of protecting whistleblowers and to offer constructive comments on how this bill can be strengthened and implemented.
Although whistleblower legislation often involves disagreements between the executive and legislative branches, you know, we understand that, I am encouraged by the efforts to resolve these differences and promote greater accountability and transparency in government.
I will close by noting simply that this legislation is long, long, long overdue. And without whistleblowers and the unfiltered information that only insiders can provide, the oversight and investigative functions vested in Congress would be seriously compromised.
I am pleased to have the opportunity today to hear from the administration, employees, and experts about this reform. Now, I yield five minutes to the ranking member of the committee, who -- him and I have worked very hard along with the sponsors of this bill to get us here today.
Congressman Issa from the great state of California.
REP. DARRELL ISSA (R-CA): Thank you, Mr. Chairman, and thank you for calling this important hearing today, and for your bipartisan support of whistleblower protections and this bill.
We are here today to hear from the administration, because waste, fraud, and abuse is the mandate of this committee. These tools are the tools we need in order to uncover waste, fraud, and abuse of our own staff. We regularly count on the General Accountability Office, the IGs of the various agencies.
And absolutely, without fail, whistleblower is both in and out of the government. Without these individuals willing to come forward and uncover the most dangerous failures within the government, we would find ourselves exposed from a national security standpoint. We would find ourselves exposed from a financial standpoint.
And in this day of increasing litigious activity, we might often find ourselves the subject as defendants in lawsuits because of our failure to know what we needed to know. During this hearing, we will be able to examine current law that protects whistleblowers and review the need for strengthening those laws.
We will also be able to highlight, discuss, and explore any issues that may be raised by expanding existing whistleblower protections. And I might note that these protections have been contracting because of decisions made by the court.
So many of the expansions today are, in fact, simply restoring what was the original intent of Congress. The support and protection of whistleblowers in the federal government is obvious, vital, to rooting out the waste, fraud, and abuse, and mismanagement.
Expiration of these laws may, however -- expansions of these laws may, however, raise some important issues and create unintended real world consequences when implemented. We look forward to hearing from the administration, any questions, comments, or any scenarios that they believe may not have been considered in this legislation thus far. Like all legislation, it can have unintended consequences.
We look forward to active dialogue to ensure that we minimize that, but we cannot, cannot allow the continued loss or degradation of whistleblowers laws that today cause us not to have the full support of both contractors and our government employees.
And Mr. Chairman, I might note that next door in judiciary, we've moved a very expansive piece of legislation that expands the ability to sue, for profit, the American government at all levels, federal, state, and local, for federal protection and recover monies.
Now, that's well-meaning legislation. It has been on the book since Abraham Lincoln, and it's important. But we cannot have just plaintiff trial lawyers doing the work of the people. And I might particularly note now, for unanimous concern to be included in the record that issues --
REP. TOWNS: Without objection, it is so ordered.
REP. ISSA: Thank you. Issues such as the Jane Harman incident where she was wiretapped, but Congress was unaware that a member of Congress had, in fact, been picked up on a wiretap of another investigation, that was withheld until a whistleblower made it obvious.
So not all whistleblowers involve money, or even per se, mismanagement, but often can result in us getting need-to-know information. We cannot allow ourselves not to have that need-to-know information.
And I thank the chairman for his leadership and yield back.
REP. TOWNS: Thank you very much. At this time, I yield five minutes to the man who is really responsible for us being here today, a person that has really done a marvelous job on this legislation, H.R. 1507.
The gentleman from Maryland, Mr. Van Hollen, recognized for five minutes.
REP. CHRIS VAN HOLLEN (D-MD): Thank you very much, Mr. Chairman. I want to thank you and Mr. Issa for holding this hearing today. And I'm not going to take my five minutes, because I want to associate myself with the remarks of both the gentlemen, the chairman and the ranking member.
I've worked very closely with Mr. Platts on this legislation as well as other members of this committee, and other members of Congress. As both the chairman and the ranking member have said, I think we feel imperative to move forward, and strengthen whistleblower protections.
Yesterday, the House passed legislation on bipartisan basis to strengthen the procurement rules and regulations of the Department of Defense so that we could make sure taxpayers were better protected. This is part of that effort. And we welcome any constructive suggestions that the witnesses may have to offer.
I thank the chairman.
REP. TOWNS: Thank you very much. Any other members seeking recognition?
Mr. Kucinich of Ohio.
REP. DENNIS J. KUCINICH (D-OH): Thank you very much, Mr. Chairman.
The federal employees who do the right thing and expose wrongdoing that's happening in their job within their sphere of activity deserve to be thanked, not punished. And yet, we know that various court decisions do not protect employees when they come forward with information that's vital to the public interest.
Government isn't some insular game, government isn't a war unto itself. What makes us a democracy is transparency. And so we can actually see what's happening. And then if something is going wrong, that we have a chance to make it right. The secrecy that has surrounded our government has put our nation's democracy in jeopardy.
And this approach towards transparency, which is reflected in the bill that's being discussed, and Congress' approach to try to restore whistleblower protection is really vital to trying to restore trust in government and trust in the Congress' ability, not just to provide oversight, but to make sure that those who had information feel free to come forward with that information and not be punished for it.
Thank you, Mr. Chairman. I yield back.
REP. TOWNS: Thank you very much. And I recognize the gentlewoman from California.
Congresswoman Diane Watson.
REP. DIANE E. WATSON (D-CA): Thank you, Mr. Chairman for today's hearing on H.R. 1507, the Whistleblower Protection Enhancement Act of 2009.
I'm looking forward to hearing about the new administration's plan to enhance whistleblower protections for federal employees and contractors, and to hearing testimony from federal employees who have faced retaliation fulfilling their duty to expose evidence of waste, fraud, and abuse.
The healthy functioning of our government and the likelihood of this committee to properly oversee its operations depends on the ability of federal employees and contractors to report instances of corruption, and misuse without fear of reprisal.
For this reason, I was pleased to vote for similar legislation in each of the last congresses, and look forward to seeing these revisions finally signed into law by our new president. Federal employees and contractors are often our first and only line of defense against government waste and manipulation, while recent history makes their dual role as civil servants and watchdogs even more crucial.
The unprecedented levels of government spending in the American Recovery and Reinvestment Act of 2009, and the current engagements in Iraq and Afghanistan require detailed oversight from Congress, which we -- which should be impossible without the honest disclosure from federal employees and contractors of what is really happening on the ground.
It's critical to our economic and our national security that Congress is notified of instances of waste, fraud, and abuse, and that these employees are able and willing to share their information and are able to remain a part of our civil infrastructure. And so I'd like to thank each of the witnesses today for their testimony as we seek to strengthen the protections for those with the courage to fulfill their duties and disclose evidence of waste, fraud, and abuse.
I yield back my time. Thank you, Mr. Chairman.
REP. TOWNS: Thank you very much.
I recognize the gentleman from Virginia, Mr. Connolly.
REP. GERRY CONNOLLY (D-VA): Thank you, Mr. Chairman. And thank you for holding this important hearing.
After eight years of unprecedented secrecy and bizarre claims of executive privilege, it's essential that this committee act to restore transparency to the federal government. The Whistleblower Protection Enhancement Act is a crucial part in that endeavor.
The primary reason we should enhance protection for whistleblowers is because it is in our national interest to do so. And lack of whistleblower protection simply cloaks problems that cannot be solved until we are aware of them.
We will hear compelling testimony today from Teresa Chambers who was fired from the United States Park Police for accurately reporting the capacity of her agency. We must know about agency issues such as this one she brought to the public's attention, if we are to solve the problem.
Ms. Chambers seems to have been fired as a result of political interference by the prior administration. Perhaps greater oversight into the operation of the agencies such as the Federal Emergency Management Agency could have mitigated the catastrophic impacts of hurricane Katrina. Regrettably, at that time, Congress and the public did not learn about agency shortcomings until after the disaster struck.
In his written testimony today, Louis Fisher states the presidential authority to keep information secret has been exaggerated. Legislative actions such as that outlined in H.R. 1507 could preclude a recurrence of administrative issuance of directives for our military to torture detainees as a standard method of interrogation, for example.
Of course, whistleblower protections are essential for federal agencies to function efficiently. However, it's even more critical to protect whistleblowers so what we may identify and correct shortcomings in our efforts to guard against terrorist attack, crime, and natural disaster.
I applaud this legislation. I particularly applaud the leadership of our colleague, Mr. Van Hollen from Maryland. I look forward to supporting the legislation and to these hearings. Thank you, Mr. Chairman.
REP. TOWNS: I don't see Mr. Platts, but he also had a great role in terms of making certain that we are here today.
REP. : He is sitting on his committee.
REP. TOWNS: Right, but he was -- he's been very involved in this along with Congressman Van Hollen as well.
We turn now to our first panel, which will consist of one government witness. Mr. De recently joined the Obama administration as a deputy assistant attorney general in the Justice Department's Office of Legal Policy. Before joining the administration, Mr. De was a partner at Mayer Brown.
Previously he had served as general counsel to the commission on the provision of WMD Proliferation and Terrorism, counsel to the Senate Homeland Security and Governmental Affairs Committee, and counsel to the 9/11 commission.
Before we hear from the witness, I want to note that we have several government agencies in attendance today, all of which, I understand, work together in preparing the testimony that Mr. De will deliver. I thank all of you for that. Thank you for your involvement, and also that you recognize how important, at this point this is, as well.
Mr. De, it is long-standing committee policy that we swear our witnesses in. So could you please stand, raise your right hand?
(The witness was sworn.)
Let the record reflect that the witness answered in the affirmative. You may begin.
MR. DE: Good morning Chairman Towns, Ranking Member Issa, and members of the committee. Thank you for the opportunity to appear before you today to discuss the --
REP. TOWNS: Could you pull the mike a little closer to you?
MR. DE: Good morning Mr. Chairman, Mr. Ranking Member, and members of the committee. Thank you for the opportunity to appear today to discuss the Whistleblower Protection Enhancement Act.
This administration strongly protects -- strongly supports protecting the rights of whistleblowers. We recognize that the best source of information about waste, fraud, and abuse in government is often a government employee committed to public integrity and willing to speak out.
Empowering whistleblowers is a keystone of the president's firm commitment to ensuring accountability in government. A government employee who speaks out about waste, fraud, or abuse performs a valuable public service. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled.
Yet too often whistleblowers are afraid to call attention to wrongdoing in their own workplace. We need to empower all federal employees as stewards of accountability. Put simply, accountability cannot solely be imposed from the top down.
The bottom line is we cannot tolerate waste, fraud, or abuse, and we must make sure that federal employees at all levels are able to do what it takes to eliminate it. At the same time, we must preserve the president's constitutional responsibility with regard to the security of national security information and ensure that agency managers have effective tools to discipline employees who themselves may be engaged in waste, fraud, or abuse.
We've recognized that the executive branch and Congress have long held differing views regarding the extent of the president's constitutional authority over national security information. Putting aside those constitutional differences to the extent possible, our focus today is on achieving common ground and a workable solution towards our shared goal of increasing protections for federal whistleblowers, including those who work in the national security realm.
Creating a system that sets up the right incentives for federal employees and managers is not easy, as evidenced by multiple efforts to reform the system in each of the past three decades. This administration believes that the time has come to amend the system once again.
I would like to discuss some key components of whistleblower reform legislation both with respect to civil service reform and the national security issues that are of interest to this committee. Turning first to the civil service reform issues, this bill would make a number of important changes to the ways in which whistleblower claims are adjudicated.
For example, the bill would, for the first time, allow whistleblowers to obtain compensatory damages. That is a matter both of simple fairness and of practicality. A whistleblower who suffers retaliation should be made whole, plain, and simple, and we agree with this measure.
This bill also makes several important changes to the definition of what would constitute a protected disclosure. Under current law, a whistleblower is not protected if she informs her boss of wrongdoing, only to later find out that her boss was the very person responsible for the wrongdoing.
Thus under current law, the employee would be protected for going to the Washington Post, but not for going to her own boss. Changing the law to eliminate this disparity would encourage employees to tell their supervisors about problems in the first instance, which is usually the easiest way to resolve them.
This administration also supports modification of what is known as the normal-duty disclosure rule. Under that rule, an employee is not protected when he discloses wrongdoing as part of his normal job duties, unless he makes that disclosure outside of the normal channels.
This administration believes, however, that normal-duty disclosures should be protected, particularly when public health and safety are at stake. Beyond the civil service arena, this administration also believes that whistleblowers in the national security realm must have a safe and effective method of disclosing wrongdoing without fear of retaliation.
We are pleased to see that this bill provides full whistleblower protections to transportation security administration screeners, who literally stand at the front lines of our nation's homeland security system.
They deserve the same whistleblower protections afforded to all other employees of the Department of Homeland Security. As this committee knows, the intelligence community is generally excluded from the existing whistleblower protection act.
The Intelligence Community Whistleblower Protection Act of 1998 represents Congress' most recent attempt to provide a safe and effective channel for national security whistleblowers to report wrongdoing. That act provides a vehicle for intelligence community employees to report matters of urgent concern to Congress.
The ICWPA, however, affords the individual employee no avenue for a potential disclosure beyond her specific agency. This administration believes that no federal agency should be able to hide its own wrongdoing. For this reason, we propose the creation of an extra-agency avenue within the executive branch for federal employees who wish to make classified disclosures to Congress under the ICWPA.
This mechanism could be composed of senior presidentially- appointed officials from key agencies within and outside of the intelligence community, including inspectors general, and would ensure that no individual agency can rely inappropriately on alleged classification concerns to stifle disclosures of waste, fraud, and abuse.
If under the procedure set forth, under the ICWPA, an agency head declines to transmit information to Congress, or declines to provide instructions to the employee on how he may do so; the employee could appeal to this new entity, which could overrule the agency head. Individual employees, moreover, we believe, should be entitled to alert Congress to the fact that they have raised a potential disclosure in the ICWPA process or with this new executive branch entity.
We also believe that the extra-agency mechanism could provide a better vehicle to review alleged retaliatory security clearance revocations than the system currently set forth in H.R. 1507. We are aware that this committee has heard testimony in the past from individuals who have claimed that their security clearances were revoked due to whistle-blowing activities.
This administration has zero tolerance for such actions. In agency mechanism, extra-agency mechanism could recommend full relief to the aggrieved employee, including restoration of the clearance, and could ensure that Congress would be notified if that recommendation is not followed.
This mechanism would ensure that no agency would remove the security clearance as a way to retaliate against an employee who speaks truth that the agency does not want to hear. Of course, retaliation may take many forms, and we are committed to providing more general protections for intelligence community whistleblowers.
Such whistleblowers expose flaws in programs that are essential for protecting our collective national security. One complication, of course, is that intelligence community whistleblowers may well reveal waste, fraud, or abuse in activities that take place within highly classified programs.
Due to the sensitive nature of the issues involved, we believe that federal district court review may 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 proposed to create.
Of course, we look forward to working with the Committee in a constructive dialogue to craft a scheme that satisfies all of our shared goals. Finally, this legislation is merely one step in this administration's plan to assure accountability in government.
We appreciate the efforts that this committee has made to device whistleblower protections that work. We look forward to working with you to revise and improve this legislation. And with that, I'd be pleased to take your questions.
REP. TOWNS: All right. Thank you very much, Mr. De for your testimony. Let me just announce to the members that we have five votes on the floor, which means that we need at least an hour. So we will go on a break and be back at 11:30.
So Mr. De, we have to vote around here. So why don't we just stop at this point, and then we go and vote and come back at 11:30? Thank you very much for your testimony. And we will continue our questioning when we return.
(Sounds gavel.) Committee will come to order. Let me begin by first apologizing for the delay. There were some procedure votes that we didn't anticipate. So that sort of delayed us even further.
Mr. De, one of the witnesses on our next panel notes that an intolerance of criticism by the previous administration was one of the reasons she was treated so harshly after disclosing safety concerns. I believe that the willingness to accept criticism is a sign of strength, and something that all leaders should embrace.
President Obama seems to recognize the need to tolerate this sin (ph). But I wonder what actions are being taken to send this message to the agency managers because sometimes you have feelings about things, and it is not conveyed to the managers, of course, and secretaries in terms of the views of the individual that is providing the overall leadership.
MR. DE: Thank you, Mr. Chairman. Well, as you know, the president has clearly expressed and signaled his strong commitment not only to whistleblowers, but to broader transparency and accountability initiatives.
I think the general philosophy that we have seen take hold from this administration is we all want to see -- we all want to get to the right answers in the right way. And as an example of the sort of message that has gone to agency heads from the president directly, referring to a March 9th memorandum, presidential memorandum that went to all agency heads, specifically related to the subject of scientific integrity.
Now, I understand that is one example of the type of tolerance of dissent that you have alluded to, and this is one of particular concern to this committee given that this subject is addressed in the bill, which we applaud.
For example, in this presidential memo that went to every agency head, the president directed that each agency should adopt additional procedures including any whistleblower protections as are necessary to ensure the integrity of scientific and technological information and processes on which the agency relies in its decision making.
So I'll put that forward as one example of direct communication from the president to agency heads, in order to tolerate dissent and to make sure we all get to the right answer in the right way.
REP. TOWNS: Right. So what do you feel that is not here that should be here?
MR. DE: With respect to the bill, I think, certainly, we applaud a lot of what is in the bill. I think, some suggestions we have concern how to more tailor -- carefully tailor some of the amendments to, for example, the definition of protected disclosure or how National Security whistleblowers are dealt with.
And so I think our proposal -- one thing that we think isn't here would be the suggestion for a new executive agency board that sits outside of individual agencies. We think that is something that contribute to the goals of the legislation in a way that accommodates both the executive branch concerns and the congressional concerns.
And such a new board would be able to deal with several issues that this committee has identified as issues of concern, whether it is retaliation for security clearance revocations, whether it is pre- disclosure from executive branch employees to congressional -- relevant congressional members of National Security matters, or whether it had to do with retaliation claims generally against national security whistleblowers.
So I think some sort of executive branch entity outside of individual agencies would be something that would contribute to the goals of this legislation.
REP. TOWNS: All right. Thank you.
In the national security and in intelligence area, I think we agree a good outcome would be to set up a system that encourages employees to work within the system rather than disclosing sensitive information to the newspapers. We want employees to feel comfortable raising problems right way, so that any serious misconduct is addressed before it becomes a major problem or a scandal.
Do you believe that the process you outline in your testimony will encourage employees to disclose information internally rather than to the New York Times or the Washington Post, and of course the Amsterdam News? And what other steps do you think are necessary to restore employees' confidence in this system?
MR. DE: We very much agree that the most effective, efficient, way to address the wrongdoing that we all want to address, is to ensure that whistleblowers do so in a way that allows us to fix these problems at the earliest possible stage.
Some of the suggested fixes in the bill as well as some of the ideas we have put forward are certainly meant to address that concern and we appreciate that philosophy that is clearly reflected in the bill itself already. I think one example of how we believe our proposal could certainly further that end is if national security whistleblowers do feel confident that they -- there is a means for redress for concerns over retaliation.
If it is addressed, for example, by the new extra-agency panel that we proposed; that very comfort and confidence that there is a means for them for redress, in and of itself will promote the proper disclosure of waste, fraud, and abuse in a way that we can actually address it and fix it more quickly in the process rather than making such whistleblowers feel like their only option is to go outside the system to the press, which doesn't help us fix the problem as easily as we could otherwise and puts everybody in jeopardy, potentially.
REP. TOWNS: All right. Let me ask you this one and then I'm going to yield to my colleague from Massachusetts. Could you comment on the provisions in the legislation that strengthens protection for employees of federal contractors?
This is similar to the protections we passed for recipients of the stimulus funds which the president signed and that you highlighted in your testimony. Could you comment on that provision?
MR. DE: Yes, sir. As you know and as you've mentioned the president was pleased to sign the recovery act which included the provision that extended whistleblower protections to recipients of stimulus funds.
We are pleased that this bill extends protection beyond -- to federal contractors beyond just recipients of federal stimulus funds, but to all federal contractors. So we would support extending protections to federal contractors generally.
REP. TOWNS: Right.
I yield to the gentleman from Massachusetts for five minutes.
REP. : Thank you, Mr. Chairman.
Mr. De, thank you for being here today. With respect to that part of the bill that deals with protection for whistleblowers disclosures in the FBI, do you have a comment to make about the proposal by some that these -- that section be amended to explicitly state that disclosures made through the normal chain of command at the FBI do not lose their protective status?
MR. DE: As a general matter, we certainly believe that the normal chain of command disclosures should in fact be protected. We want to encourage employees to do what their first instinct normally is to do, which is to go to your boss and say, I think, this is a problem.
And so we certainly would agree that that applies across the government, and we would like to make sure that the particular language in the bill is crafted in such a way to ensure that it achieves that goal, but also doesn't unnecessarily chill federal managers from taking whatever appropriate disciplinary actions there may be in the normal course of employment.
REP. : Thank you.
I yield back Mr. Chairman. Thank you, Mr. Chairman.
REP. TOWNS: Thank you very much. You know, if you were able to score on 1 to 10 in terms of this legislation, what number would you give it?
MR. DE: Well, I'm not a numbers person, so I suppose that's the first answer I would have. I think we are --
REP. TOWNS: We need the record though before you get a number.
MR. DE: I would say this, we are very, very pleased that the committee and Congress is paying attention to this issue and the president and this administration wants to see a bill, and so we are very engaged to make sure that this bill happens to the extent Congress can make it happen this year.
REP. TOWNS: Right. Thank you very much, and thank you so much for your testimony. Thank you.
MR. DE: Thank you.
REP. TOWNS: Thank you.
Panel number two. We now turn to our second panel. Our second panel will have three witnesses made up of current and former employees of the federal government. These whistleblowers each followed their conscience in disclosing evidence of wrongdoing or threats of public safety.
They have taken different paths to arrive here today. And we have asked them to share their experiences with the committee. We'll first hear from Ms. Bunnatine, of course, and then better known as "Bunny," who is a top procurement executive with the Army Corp of Engineers.
Our next witness is Franz Gayl, is currently employed as a civilian science and technology advisor with the United States Marine Corp. Our third witness is Teresa Chambers, was the chief of the United States Park Police, and was removed after disclosing her concerns about the safety of the National Parks.
I look forward to hearing each of your testimonies and as I said earlier, it is the committee policy that all witnesses are sworn in, so if you would stand and raise your right hand.
(The witnesses were sworn.)
You may be seated. Let the record reflect that the witnesses answered in the affirmative. The other panel, well, what we would like for you to do is to talk for five minutes in terms of and then of course allow us an opportunity to raise questions with you.
So why don't we start with you, Ms. Greenhouse, and come right down the line. And thank you all for being here.
MS. GREENHOUSE: Yes. Chairman Towns, I believe Ranking Member Issa is not here now, is that correct?
REP. TOWNS: He'll be here.
MS. GREENHOUSE: Okay. And honorable members of the committee, I want to first thank you for holding this hearing. I am required to state that I appear in my personal capacity.
In 1997 I was sworn in as the United States Army Corps of Engineers Procurement Executive and Principal Assistant Responsible for Contracting. I was selected for this position following a competitive selection process where I was judged most qualified.
I am proud to have been the first black female to become a member of the Corps' Senior Acquisition Service -- Executive Service, I'm sorry. I soon realize that the Corps' contracting practices were dominated by cozy and clubby contracting "relationships."
Simply stated, improper contracting practices were the norm rather then the exception. I fought to bring accountability and fairness to the Corps' contracting mission, which brought about hostility, and was blatantly tied to my race and gender.
During the ramp-up to the Iraq War, the Army Corps was named as the Executive Agent for a contract effort known as Restore Iraqi Oil, or "RIO" for short. RIO was a $7 billion, sole source, cost-plus contract awarded to Halliburton subsidiary, Kellogg Brown & Root without competition.
A decision at the highest levels was made to exclude me as much as possible from the RIO contracting effort. I was not told that the Corps had been selected as the Executive Agent for the RIO contract, and I was kept in the dark for as long as possible. But I could not be completely circumvented, because eventually, the final justification and approval for the RIO contract had to be provided -- had to be provided to me for signature.
It was not until the invasion of Iraq and that was imminent that the curtain was finally lifted giving me a front row seat to the worst contract abuse I witnessed during the course of my 23-year professional contracting career. Although the Corps had been named the Executive Agent, in reality that function was controlled out of the Office of the Secretary of Defense.
I raised concerns directly to the Secretary of Defense's representatives and to the Senior Contracting Officials from the Department of the Army and to my command, outlining the selection of KBR was improper and unlawful; that the process was plagued by conflict of interest, and the scope and the duration of the "compelling emergency" contract was unconscionable.
My concerns were ignored. Because of the invasion of Iraq was imminent, and that there was little that I could do, after some soul- searching, I was compelled to hand-write directly onto the original copy of the contracting documentation, a notation documenting my most pressing concern over the unprecedented duration of the contract.
My notation on the contract documents did not sit well with my superiors and retaliation was sure to follow. In October of 2004, I was called into the commander's office and given written notice that I was to be removed from the Senior Executive Service and from my position.
I was told that I could avoid the embarrassment of demotion and could retire with grace. I did nothing wrong, I was not going to retire, and I could no longer remain silent. I turned to Michael Kohn, a co-founder of the National Whistleblowers Center for help.
With his assistance, I was able to bring my concerns to the then acting secretary of the Army, and key members of Congress. A media storm followed. The acting secretary of the Army did the right thing by acknowledging the seriousness of my concerns.
He ordered a halt to my demotion and removal until my concerns were reviewed by the Department of Defense Office of the Inspector General, the DOD-IG. But there was no visible action to investigate my concerns.
As far as I can tell, the DOD-IG never conducted an investigation. The status quo ended after I agreed to testify before a congressional committee regarding improper contracting.
I was approached by the United State Senate Democratic Policy Committee and asked to provide testimony about my concerns. I felt obligated to appear, particularly, because my concerns were not being looked into as had been promised by the acting secretary of the Army.
Word that I was going to appear reached the Corp, which prompted a visit from the Army Corp's acting general counsel. He let it be known that it would not be in my best interest to voluntarily appear before the committee. I ignored the message and that was delivered and testified on June 27, 2005.
I anticipated swift retaliation for doing so, and I didn't have to wait long. On August 25, 2005, I was removed from the SES and stripped of all contracting responsibilities. Since then, my top secret clearance was withdrawn, I continuously received inappropriately down-graded performance reviews, others are allowed to take credit for my work, and I am kept away from my career field of contracting.
I was even denied recognition for having 25-years of Federal Service at the Annual USACE Awards Ceremony that was afforded to other USACE eligible employees. I am not an expert in the law, but I am well versed in how poorly it works when it comes to federal sector whistleblower protection.
The current reality is that the Federal Whistleblower Protection Act offers no protection. How poorly it works is perhaps best exemplified by the advice I received from the National Whistleblowers Center, a not-for-profit organization devoted to helping whistleblowers.
When I explained what was happening to me, I was told that filing a claim under the Whistleblower Protection Act would do more harm than good. I essentially received the same advice from my former commander, Lieutenant General Carl Strock who was responsible for my removal and demotion.
When my whistleblower concerns were made public, he announced, in my presence, during his weekly staff meeting of his senior staff that the Corp had a whistleblower, but that there was no need for concern, because the system would take care of itself.
I am the "poster child" of what federal employees can expect if they have the courage to blow the whistle on waste, fraud, or abuse. A lost career with the inability to wage a meaningful legal challenge. Federal employees deserve more than that.
Thank you for listening.
REP. TOWNS: Thank you very much, Ms. Greenhouse, for your testimony.
MR. GAYL: Mr. Chairman, thank you for inviting my testimony.
REP. TOWNS: Pull your mike and sit a little closer.
MR. GAYL: Thank you for inviting my testimony today. I just wanted to say that I'm testifying in my personal capacity and not as -- in my official functions.
My name is Franz Gayl. I enlisted in the Marine Corp in 1974 and retired as a major in 2002. Following my retirement, I was hired back by the Marine Corp as a GS-15 civil servant. I had enjoyed an unblemished record as a science advisor and deputy branch head until I blew the whistle on the Marine Corp support establishment at Quantico in early 2007.
I am testifying because I want my lessons to make a difference as you consider this new legislation. In 2006, I volunteered to deploy to Iraq to assist I MEF Forward with equipment deficiencies facing mines.
In Iraq, I witnessed the tangible costs in lives lost and serious injuries incurred due to gross mismanagement of requirements at Quantico. I perceive that the Marine Corps Combat Development Command at Quantico remained willfully blind to the consequences of equipment delays.
The most tragic consequences resulted from delays in fielding the Mine Resistant Ambush Protected vehicles. I contend that officials knowingly delayed or refused the provision of urgently requested capabilities like MRAP whenever request competed against preexisting Quantico priorities for finite resources.
Upon returning, I was committed to ensuring accountability for the preventable loss of life and to achieve lasting organizational improvements. However, after my supervisors silenced my attempts to bring the issues to the attention of the office of the Secretary of Defense, I reached out to the offices of then Senator Biden and Senator Bond.
For the OSD disclosures I received a formal counseling and rewritten job description. Then I received the formal letter of reprimand for a well-received e-mail to a senior joint commander outside of my chain of command.
Finally, I received the notice of proposed suspension for meeting with congressional staffers. I submitted three quick complaints to the office of special counsel, each being rejected on different grounds. The government accountability project assisted me in getting OSC to consider a fourth submission and I was also invited for an interview. But I've not heard from OSC in over a year. GAP and concerned members of congress have been my only advocates.
Then in 2007, I was directed to conduct the study aimed at modernizing combat development processes. I completed studies on MRAP, laser dazzlers, and other denied capabilities. When staffers asked for the unclassified case studies I provided them.
This initiated DOD-IG audits of MRAP and laser dazzler urgent needs. The MRAP audit found that the Marine Corp was aware of the threat posed by improvised explosive devices and of the availability of MRAP-type vehicles years before insurgent actions again in Iraq, yet did not acquire them.
Even after I MEF Forward urgently requested MRAPs to mitigate casualties, MCCDC did not respond. The audit did not refute my case study findings of the MRAP requirement was "grossly mismanaged" and that inaction by MCCDC cost many Marines their lives unnecessarily.
Other independent audits further confirmed my disclosed concerns. The dazzler audit is ongoing. More reprisals would follow my case study disclosure to Congress including disapproval of two separate requests to attend school, disapproval to participate in a two-year congressional fellowship program and a 2 performance rating for 2008 under the national security personnel system.
A 2, places me in the bottom 3 percent of the 160 civilians against whom I was compared. I'm also undergoing a periodic security clearance and reinvestigation. I have no reason to believe that my supervisors portrayed me as trustworthy.
Finally, I have been issued a performance improvement program giving me 26 work days to complete a lengthy list of self-improvement steps. It appears clear to me that this latest reprisal will probably lead to my termination. My current situation is a far cry from the I MEF Forward commanding general's recommendation to have me considered for the Senior Executive Service ranks when I return from Iraq.
In conclusion, the Marine Corp is my life and I owe back a great debt; that is why I continue to hang in there. I joined the Marine Corps following my 17th birthday in 1974, and the Corps has given me my proudest identity and a purpose for my life.
I feel very fortunate indeed. But it is the Marine Corps I honor, not the Quantico and beltway corporate Marine Corps, a culture that has acted on incentives and exhibited priorities that were and are often divorced from those of Marines in harms way.
Officials must be held accountable for their past willful blindness to known threats. And the General Officers who, 1) failed to supervise those officials then, or 2) continue to defend their past actions today must be held accountable as well.
If those generals and officials are not held accountable for past tragedies before public attention wanes, the same officials will follow parochial priorities with renewed confidence in the future, and Marines will again pay the price in the field.
As I stated to my supervisor during a counseling session in 2007, I intend to successfully achieve a degree of accountability and concrete change at Quantico or I will be fired in the process of trying. While I don't want to be fired, that may be the cost of me doing my duty as a Marine and a civil servant. The legislation you are discussing today will probably come too late for me.
However, I will feel good if I managed to help protect DOD Federal employees in the future from the sort of treatment I have been experiencing over the past two years.
Thank you, sir.
REP. TOWNS: Thank you very much.
Miss -- is it Chambers or Chambers?
MS. CHAMBERS: Chambers, sir.
REP. TOWNS: Chambers. So, I was right. Ms. Chambers.
MS. CHAMBERS: Thank you, Mr. Chairman, and members. Thank you for this long-awaited opportunity. My name is Teresa Chambers. And I'm a 33-year career law enforcement professional. And I had been a chief of the United States Park Police, responsible for protecting our nation's most notable parks, monuments, and parkways.
Being selected for this position following a nationwide search was a tremendous honor affording me the opportunity to serve my country. For the past five-and-a-half years, however, I've been trapped in a bizarre, utterly broken system. Years of litigation have yet to resolve a very simple question, is telling the truth a firing offense in federal service?
In November 2003, a Washington Post reporter contacted me for an official agency response regarding information the union had supplied him including internal documents showing that there were not enough officers to cover assignments following the attacks of 9/11.
On December 2nd, the Post published the article. After reading it I thought it would be well received because thorny issues have been handled deftly. This was not the case. Three days later without explanation and with three armed special agents at his side, then National Park Service Deputy Director Donald Murphy ordered me to surrender my gun, badge, and identification.
I was placed on administrative leave and ordered not to speak further with the media.
Two of the agents escorted me back to my office to quickly collect personal effects. Then I was walked out into the street. Standing there at the curb in full uniform holding a cardboard box of things, I was stunned. Little did I know that a long, strange odyssey had just begun.
One week later, I was summoned to a meeting with Murphy and a senior Department of Interior attorney. They offered to forego any punishment and fully restore me as chief if I would appear at a press conference to deny that there had been any sort of disagreement. A string was attached; a political appointee would vet all my communications with Congress and the media. I refused to participate in what would result in misleading Congress and the public.
Days later, I was charged administratively with improperly disclosing law enforcement sensitive information to the Washington Post. For good measure Interior tacked on five administrative charges, none of which had been raised previously. But the charges were not true and I filed a detailed rebuttal.
Convinced that these charges would not withstand factual or legal scrutiny, I lodged a complaint with the U.S. Office of Special Counsel. The investigation dragged on for five months, but came to no conclusion.
At one point, OSC hosted a dispute resolution meeting during which a Bush appointee suggested that Interior would pay me $300,000 to resign. When I told them I was not interested in money, those negotiations quickly ended.
After more than seven months, I filed directly with the Merit Systems Protection Board and within a few hours of doing so Interior announced its decision to fire me. The MSPB process has been a long drawn out nightmare. After the MSPB on a split vote rejected my appeal, I went to the Federal Circuit.
In a rarity, the Federal Circuit ruled for me and sent my case back to the MSPB, which this January ruled against me again. Now, my case is back before the Federal Circuit yet a second time.
My experience demonstrates that this system is broken and the Congress needs to adopt fundamental reform. First, the system must be fast and fair. Fast in that there must be expeditious means to resolve cases and fair in that if the case does not quickly resolve, it should be brought before a jury.
Giving employees access to jury trials is the single biggest reform Congress can enact. Before juries, agencies will quickly learn that reprisal campaigns will backfire.
Second, rules must be clear. Eliminate the legal thicket that shields retaliation. Above all, honesty in federal service should be expected and protected. Third, look at underlying problems. The current system concentrates only on the personnel action, but completely ignores the underlying problem over which the civil servant risked his or her career.
In 2003, I told Congress and top agency officials that the United States Park Police was dangerously understaffed. It is still understaffed and even more so today. The men and women patrolling the monuments, parks, and parkways are not getting the support they need to do a demanding, but vital job. And because of this both they and the public remain in danger.
I'm proud of my service with the United States Park Police. And I stand by the decisions I have made. My hope is that my experience will result in positive change for public servants who have the courage to speak the truth regardless of the consequences. Thank you for your time, sir.
REP. TOWNS: Thank you very much.
And let me thank all of you for your testimony. And let me thank you for your years of public service. It is an unfortunate truth that the difficulties you and others have encountered are the inspiration for this important legislation.
Let me begin, I guess, with you, Ms. Greenhouse. You note in your testimony that your top secret clearance was removed after you blew the whistle. What justification did the Corps provide you for taking that kind of drastic action?
MS. GREENHOUSE: They were feeling that they were justified because they said that I no longer had performance objectives or duties that required their billet, you know, for a top secret clearance. I'm quite capable even in the area of where I have been placed in the directorate of civil works to do a lot more jobs that would require a top secret clearance, but I'm not placed in those jobs and then they used that as a -- as their justification for saying that you're no longer doing jobs that are of the importance of where you will be involved with a top secret type of material, therefore, you will -- your top secret clearance is now being terminated.
REP. TOWNS: Okay. In other words, they just made up something basically as sort of --
MS. GREENHOUSE: When I'm quite willing and ready to say I will take on all -- any duties and I'm capable, I've three masters degrees and one in engineering management. So I know I could do the jobs, but why not give me the job so that I could maintain the top secret clearance and then be in a position to give more value to my nation.
REP. TOWNS: All right. Thank you.
Ms. Chambers, could you please illustrate the type of safety concerns you believe the national park were vulnerable to because of insufficient resources?
MS. CHAMBERS: Sir, the most glaring example came to mind last night as I attended the law enforcement officers' memorial candlelight vigil. I buried a police officer from the United States Park Police. Part of the reason that he died is because there were not sufficient officers to protect an accident scene on the Baltimore-Washington Parkway.
Everyone in the nation in law enforcement was short after 9/11 and we were no different. The difference was that while local agencies could apply for federal benefits and increase their numbers of officers, we in the Park Police stayed stagnant.
In fact, instead of increasing in numbers following 9/11, our numbers fell. We gave great attention to our monuments and memorials and even with that it wasn't a sufficient amount of attention. It was frankly, Mr. Chairman, window dressing. We had extra officers, but we weren't doing the real work behind the scenes that needed to be done.
We also were pulling for our neighborhood parks and parkways leaving them extremely short and understaffed. I shared this information with folks in my chain of command and it fell on deaf ears. And it wasn't until the Washington Post had asked whether this information that the union had taken them was factual that the hammer fell.
REP. TOWNS: Okay. Let me ask all three of you this question. You know, people are saying that, look, workers are not going to believe you, you know, if you'll talk about just protecting whistleblowers based on what they've seen down through the years and it's just not going to happen and, of course, let me ask all three of you.
And this is something that Senator Grassley has for many years talked about, you know, ceremony in the Rose Garden for whistleblowers to demonstrate the value of the whistleblowers to public service. And, of course, if President Obama invited each of you to a ceremony in the Rose Garden, would you show up? Right down the line starting with you, Ms. Greenhouse.
MS. GREENHOUSE: I'm sorry, I missed the -- if -- the question again.
REP. TOWNS: If -- the problem is that, you know, many of the workers do not feel that when it comes to protecting whistleblowers that the government -- that the agencies are not serious about it. Well, Senator Grassley said that one way to do that would be to have a ceremony for all the whistleblowers in the Rose Garden.
And so I'm saying to you if President Obama invited you to the Rose Garden for a ceremony, would you show up?
MS. GREENHOUSE: I would be honored to.
REP. TOWNS: And --
MR. GAYL: Yes, sir, I'd be honored to as well.
MS. CHAMBERS: I'd be the first there, sir.
REP. TOWNS: All right. Well, I think that, you know, we have to look at -- it is things like that that's going to point out how serious this legislation is. And so let me, at this point, yield to my colleague. First, I want to yield to the person that's sponsored the legislation. And then I'm going to go next to -- to let you know that we're really serious about it. I want to yield to Congressman Van Hollen and then, of course, I'll recognize other members as well. This is the sponsor of the legislation, Congressman Van Hollen.
REP. VAN HOLLEN: Well, thank you, Mr. Chairman. And let me thank my colleague, Mr. Quigley, and again welcome him to the Congress, as one of our newest members, and it is great to have him on this committee. And I just want to come and thank all of you for your testimony today, but for also having stood up as whistleblowers and put yourselves on the line.
And your stories are the reasons that we're moving forward so aggressively with this legislation. As you've heard it has passed the House before, twice now. Our understanding from members of the Senate is that this time they will engage in this. And we're going to take their statements on face value, and it's good faith. And we really hope that this time around, we can move forward.
I think you probably heard the testimony from the Obama administration earlier today, which was a real sea change from the statements that we've had from earlier administrations on this legislation. And so I think that things are lining up. We're very hopeful that we will -- we're confident we'll get it out of the House again.
We're very hopeful we'll then get it out the Senate and to the president's desk. And as the administration witness said today, the president looks forward to signing legislations strengthening whistleblower protections. But we wouldn't be here today and we would not know of the flaws and problems with the existing system if it hadn't been for your courage in coming forward.
And so really, as the chairman suggested in his last question to you, this legislation is really dedicated to you and all of the other whistleblowers out there who've come forward to try and protect the taxpayer, and protect our country. And it's time that we send a signal that, that kind of bravery and courage is rewarded and not punished. So, thank you all for coming forward today.
Thank you, Mr. Chairman.
REP. TOWNS: Thank you very much.
I yield five minutes to Congressman Quigley from the great state of Illinois.
REP. MIKE QUIGLEY (D-IL): Thank you so much, Mr. Chairman. And thank you very much to the sponsor of this measure. It's a welcome sign here. And I want to thank everyone in this room for their efforts. I come from a town right now that's struggling with these issues and it's important across the whole country.
A wise man once said that illumination is the best disinfectant for government. And without transparency, without accountability we simply can't know what's happening and the public doesn't get the kind of government they deserve.
Jefferson said, in a democracy we generally get the kind of government you deserve. Well, I would suggest that that wouldn't be the case without efforts like yours. We can't drive past these buildings and know what's happening inside. As large as this government is, there is just absolutely no way we can know what's happening and we cannot promote accountability without the courage of folks like you.
So it is our role, in my mind, as a very young member here, to foster that -- your role as much as possible and to help you anyway we can. And I think the chairman; for his efforts, and I think that the sponsor, for being tenacious about this, are moving us in the right direction. And as a freshman, in my own my small way, I will do everything I can. So, thank you so much for all you do. And I look forward to moving this forward. Thank you.
REP. TOWNS: Thank you very much, Congressman Quigley.
Let me just ask you, Mr. Gayl. You know, important part of this committee is to look at the effectiveness of the inspector generals. You've told us that the Department of Defense inspector general largely vindicated your concerns. Could you tell us what the Marine Corps has done to follow-up on any recommendations the IG made in his report?
MR. GAYL: Sir, I have -- I'm not aware of any actions that were taken in response to the IG's audit. I do know there have been improvements made, there has been other audits too that have taken a look at the Marine Corps that have been very unfavorable with regards to the requirements process at Quantico, one of them was the Naval Audit Service back as far as 2007.
I do know they were very engaged at Quantico in improving the transparency of the requirements process and improving the responsiveness to war fighters, as a result of that, very negative report. But as far as the -- any activities in response to the DOD IG's audit of the MRAP urgent UUNS process, I do not know of any specific actions that the Marine Corps has taken.
REP. TOWNS: All right.
Well, let me thank all three of you again for your testimony and to say to you that -- you have a question? Me yield?
REP. : (Off mike.)
REP. TOWNS: I'd be happy to yield.
REP. : (Off mike.)
REP. TOWNS: Turn your mike on. Your mike is not on.
REP. : Thank you, Mr. Chairman. I was just saying to the next panel I apologize because of the votes that messed up everyone's schedule I'm not going to be able to be here. But I will look through your testimony. Some of you have been before this panel before. We thank you for all your contributions to this effort. Thank you.
Thank you, Mr. Chairman.
REP. TOWNS: All right. Thank you very much.
And let me also join by saying that we really thank you for your testimony. I do believe that what you've done today is going to make life better and make our government more stronger as a result of your activity. And I was thinking it's going to also encourage people not to be afraid, if they see something wrong, to try and move forward and make it right.
So, I want to let you know, you had a lot to do with this legislation moving forward. And, of course, we're going to try and make it certain this time around that it goes all the way. And based on what they're saying in the administration that if it hits his desk he's going to sign it, so he's going to sign it.
So I want to let you know that we thank you for that. And we know that through that process of standing up, you know, that you encountered some pain and some suffering, but I think that the key to it is what you're doing in terms of paving the way for others and at the same time strengthen our government.
That's what we want. Transparency is something that we need to in our government. The president of the United States, in every conversation I've had with him, he's indicated that he would like more transparency.
And what you're doing is to help him to get it.
Thank you so much for your testimony.
MS. GREENHOUSE: Thank you.
MS. CHAMBERS: Thank you.
MR. GAYL: Thank you, sir.
REP. TOWNS: Welcome. Our final panel will have six witnesses made up of experts in the field of constitutional law, whistleblower law, and government accountability. Louis Fisher is the special assistant in the Law Librarian of Congress at the Law Library of Congress. And he is an expert on constitutional law and separation of power issues.
Professor Robert Turner from the University of Virginia is the associate director of the law school Center for National Security Law. Tom Devine is the legal director of the Government Accountability Project, which has been advocating for strong whistleblower protection for over 30 years.
Angela Canterbury is the director of advocacy for Public Citizen's Congress Watch Division, which has been promoting government accountability for decades. Mike German is policy counsel on national security with the ACLU. Mr. German was an agent with the FBI and resigned over concerns about failed prosecution of domestic terrorist organizations.
Finally, David Colapinto is the general counsel of the National Whistleblowers Center. Mr. Colapinto has developed expertise in litigating FBI employment cases. We've asked this panel to provide their views on specific provisions of the legislation and to provide us with suggestions for improving the bill.
It is a long standard policy that we swear in all of our witnesses. So if you'd be kind enough to stand and raise your right hand.
(The witnesses were sworn.)
You may be seated. And let the record reflect that all the witnesses answered in the affirmative.
Why don't we just start with you, Mr. Fisher, and come right down the line.
MR. FISHER: Mr. Chairman, thank you for inviting me. I wanted to underscore, Mr. Chairman, what you said in your opening remarks, the need, of members of Congress in order for you to carry out your constitutional duties, you need access from the executive branches, and access to information, domestic information, national security information, and not just information that the president or a department had -- voluntarily gives to you.
You need information from agencies, in the middle of an agency, at the bottom of an agency. Otherwise, you cannot know and correct wrongdoing and illegality. So that's the basic point.
I look at the statement today from the Justice Department. Although it doesn't get much into constitutional issues, I see in the statement some reflection of what the Justice Department has said in the past.
And what the Justice Department has said in the past is that the president can determine what information you get particularly in the national security area. It can withhold information so that you cannot facilitate your constitutional duties.
What the Justice Department has said in the past, they relied, I think, in proper ways on two Supreme Court cases. And one is the Egan case of 1988. I'd just call to your attention that the Egan case had nothing to do with congressional access to national security information, nothing to do.
It was a dispute solely between inside the executive branch, between the Navy and the Merit Systems Protection Board. So it had nothing to do with congressional access. It also was a purely statutory matter. That is what did Congress intend in this area, had nothing to do with any constitutional powers of the president, anything that the president has as commander-in-chief.
So I think that case has been misread by the Justice Department. And I think that misunderstanding is implied in the statement today from the Justice Department. The Egan case was simply looking at Congress, what you intended and you can control this area through statutory action. You don't have to leave that to some plenary power by the president.
The second decision that's misread by the Justice Department, I think, is implied in today's statement from the Justice Department is the Curtiss-Wright case of 1936, which people read as giving the president some plenary, exclusive, independent, inherent power in national security to withhold the information from you.
I can only say that the Curtiss-Wright case had nothing to do with presidential power in terms of any inherent power. It had only to do with congressional powers to what you can delegate to the president. And yet, it has been misread ever since and it's -- I go into this in my statement for you how that has been abused over the years.
What people do is not look at the decision of the Supreme Court but to look at pages and pages of dicta by Justice Sutherland and I think anyone looking at the dicta will see that it's -- misreads particularly a statement that John Marshall, when he was a member of the House, in 1800, he made the statement that the president is "sole organ" in external affairs. That implies the sole organ that he can do everything and there's some exclusive power.
Anyone reading this speech today would see that what John Marshall meant was that once Congress has made policy by statute or by treaty then the president is the sole organ in carrying it out. But you know that, of course, that's what the Constitution says. There's nothing new. But it is -- that has been corrupted and misused by the Justice Department.
I also want to call attention that the Justice Department seems to imply that because they make a vague reference to President Washington, I assume, they mean the Jay Treaty in 1796. But the fact is that President Washington, four years earlier, in the Algerine Treaty, not only gave all treaty documents to the Senate but gave the same documents to the House. So it's not true that the House is out of the picture.
The last point I want to make is that in the past when the Justice Department testifies it seems to imply that there are two steps for you to get national security information, one, you have to have clearance. But as an elected member you have clearance. The second step you have to have a need to know.
And if I read statements in the past about the Justice Department it seems to say that the president or some executive official can say, you have clearance but you have no need to know. Therefore, you're not going to get the information.
And I'll disclose by reading from the 1998 CIA whistleblower statute, one of the things that Congress said in law says that "Congress as a co-equal branch of government is empowered by the Constitution to serve as a check on the executive branch, in that capacity, it has a 'need to know' of allegations of wrongdoing within the executive branch, including allegations of wrongdoing in the intelligence community." Thank you.
REP. TOWNS: Thank you very much for your testimony.
MR. TURNER: Thank you, Mr. Chairman, and members of the committee. I'm pleased and honored to be invited to share with you my views on H.R. 1507. I was just invited two days ago and was given a newspaper article about the bill. And so my remarks are focused entirely upon section 10, the National Security Whistleblower Rights Provision.
And I would ask permission both to submit my statement for the record and also to revise it to reflect the fact that the bill it covers a great deal more than this. And I do not object -- I'm, you know, I do not take a position on the other provisions of the bill. That's not my area of expertise.
REP. TOWNS: Without objection so ordered.
MR. TURNER: As a matter of public policy, I think this is a truly horrible idea of passing a law authorizing low level employees in national security agencies to at will give classified information to Congress. But on policy grounds we all can differ and that's something you can decide for yourselves.
But I would respectfully submit there's a bigger problem with the legislation that mandates its rejection irrespective of a personal policy preference.
Each of you, before assuming office, took an oath to support the Constitution, the highest law in the nation. And I believe this bill is flagrantly unconstitutional. I don't say that lightly. I first became interested in these issues in 1966 when I had the privilege of attending a lecture in this area by the great Quincy Wright. I spent much of my professional life in recent decades studying, and writing and teaching about these issues.
I wrote a 1,700-page doctoral dissertation on the issues and I have written several books in the area. I worked on the issue for five years as a Senate staff member, later in the Pentagon, the White House and the State Department where I was the acting assistant secretary for legislative affairs in 1984-'85. I spent three terms as chairman of the American Bar Association's standing committee on law and national security.
And, as you know, in 1981 I co-founded the nation's first think- tank in this area, the Centre for National Security Law. My prepared statement, which was done very quickly, but is about 20 single-spaced pages, includes more than 50 citations to the writings of George Washington, Thomas Jefferson, James Madison, Benjamin Franklin, John Jay, John Marshall and others. It cites early legislation from the first Congress of judicial precedents dating back to Marbury versus Madison in 1803, which I have to admit, was dicta as well, but is nevertheless considered a fairly important case.
The clear message is that the founding fathers intentionally excluded Congress from having access to sensitive military diplomatic or intelligence secrets without the consent of the president. In 1776, Ben Franklin and the rest of the Committee of Secret Correspondence of the Continental Congress unanimously agreed they could not share news of covert French assistance to the American Revolution because and I quote, "We find by fatal experience that Congress consists of too many members to keep secrets."
By far the most important document in helping the American people understand the Constitution was -- were the Federalist papers, the official journal of the convention in Madison's lengthy notes were not published for decades. In Federalist number 64, John Jay explained that important foreign intelligence sources would not be willing to confide their information to the Senate or Congress but they would be willing to confide in the secrecy of the president and thus he explained that was why the Constitution had left, quote, "the business of intelligence," end quote, to be managed solely by the president, quote, "as prudence might suggest."
When Congress appropriated funds for foreign affairs and intelligence year after year, it asked the president to account specifically only for those expenditures from this fund as quote, "in his judgment may be made public."
In 1818, the legendary Henry Clay, speaker of the House, declared that it would be improper for Congress to inquire into how the president spent money from the secret service account. Others echoed the point, no one voiced disagreement. My prepared statement discusses a number of Supreme Court cases recognizing this power.
The agreement of all three branches on this issue was so strong that in 1957 the great Princeton constitutional scholar Professor Edward Corwin, who was the principal author of the massive congressional document on the Constitution, edited the document, said and I quote, "So far as practice and weight of opinion can settle the meaning of the Constitution, it is today established that the president is final judge of what information he should entrust to the Senate as to our relations with other governments."
I think I am missing page four but I think probably my time is up. I've got 30 seconds, so this -- these are very important issues but your oath of office is also tremendously important. I hope you will look at my prepared testimony. Don't take my word for it. See the words of Jefferson and Madison. Jefferson in one memo to President Washington in 1790 noted, Congress was not intended to know the secrets of the executive branch.
I think the executive branch proposal for setting up some sort of machinery within the executive branch so that people, would be, if they have a grievance can have a fair hearing. That's not a problem as long as this is subject to the president's control.
But just as I don't believe the Congress can get involved in hearing ongoing cases before the Supreme Court and calling witnesses and then telling the court how to decide them because that's a judicial function. I think it needs to be very careful in how far it goes in getting in the business of the executive branch for fear of usurping its executive powers.
Thank you Mr. Chairman.
REP. TOWNS: Thank you.
MR. DEVINE: And thank you. It's an honor to be here with my colleagues from the Make it Safe Coalition, a non-partisan, trans- ideological good government network whose mission is solidarity with whistleblowers. It is part of a growing movement. About five years ago there used to be 20 groups that would join the sign on letters for the Whistleblowers Protection Act. Three years ago it was 50.
Last year it was 112, last week it was 280. This morning it's 292. We're all committed to the pledge that President Obama campaigned on best practice, free speech whistleblowers rights for all employees paid by the taxpayers enforced by full access to court.
And we want to offer thanks to the Obama administration. This is the first time in 30 years working on this issue that the government has asked for our views before the executive made its decision. That's very refreshing and we appreciate it. But we won't be settling for less than justice as the outcome as much as we're enjoying the process.
Mr. Chairman, this is the fourth time that Congress is trying to pass a law that was enacted unanimously the first three times, very curious situation. What went wrong? Even for those who were covered, the Achilles' heel is no mystery, from the beginning it's been due process.
From the start the problem has been the administrative board, which is a whistleblowers only chance for a day in so-called court. The Whistleblower Protection Act was passed in 1989 because only four whistleblowers had won decisions on the merits during the '80s.
Well, guess what? It's déjà vu all over again. We've only had three cases where they've won since the millennium and only one under the current chair, Neil McPhie. In 30 years there has never been a whistleblower who won a high stakes -- a case involving high stakes whistleblowing with national consequences, never.
In among all the lawyers that I know in the national capital region where the most significant jobs are since 1979 a whistleblower has never won any case, significant or petty. The public is the ultimate loser. Whistleblowers at the FAA tried to challenge the failure to inspect Southwest Airlines and they were fired. What happened? Paralysis last summer in the airports.
A whistleblower at the VA was challenging a breakdown in patient security. He was fired. The board said, well, he doesn't have whistleblower rights because he was challenging mere negligence. Tell that to the millions of patients whose confidential records were lost last year. They are very serious consequences and the causes are no mystery either. The administrative judges have no judicial independence.
They are not structured or don't have enough resources to hear complex national cases.
This policy is so engrained their performance appraisals get lowered if they spend more than 120 days working on a case. They compensate by trivializing or avoiding the issues, something that in the Senate Judiciary Committee is a controversy over multi-million dollar ghost procurement becomes at the Merit Systems Protection Board, whether someone was fired for blowing the whistle on drunken office Christmas parties.
Cases involving national consequences are delayed from 3 (years) to 11 years unlike the normal pace of the board, if there ever is a hearing. It is very clear a bush league forum will not provide justice for those challenging major league government breakdowns.
My written testimony has many examples of this phenomenon. I'd like to spend the rest of my time answering the objections raised by people in the bureaucracy that the administration is trying to deal with. The main objection that we have to this process is a question. Why is it that the only problem we have with whistleblowers are having access to juries involves federal employees challenging federal breakdowns?
There's 14 precedents where whistleblowers had jury trials. Five laws passed in the last Congress, federal employees are the only ones in the labor force without normal access to jury trials to enforce their rights. This is completely unacceptable. We've been told that if they have normal rights it would be flooding the courts based on extrapolating from the precedence there will be about 130th (ph) new case per year for each judge to contend with.
We've been told that it would be paralyzing managers who will be intimidated by this new right. They'll be afraid to impose accountability. Look at the facts, it flunks the reality test, before the Whistleblower Protection Act was first passed 175 performance or misconduct based actions in the prior three years, three years after 174.
D.C. passed the jury trial Whistleblower Protection Act, the five years before it was passed, 220 accountability actions by managers, but five years after 220. It is time for the president, for any president and for Congress to stop listening when bureaucratic managers cry wolf.
Mr. Chairman, it's not too late to turn on the lights in the bureaucracy. But we don't have time for a further delay. This law needs to be passed before stimulus spending gets fully underway. We hope Congress will act quickly.
REP. TOWNS: Thank you very for your testimony.
MS. CANTERBURY: Thank you, Chairman Towns, and members of the committee for the opportunity to testify in support of H.R. 1507, the Whistleblower Protection Enhancement Act of 2009. I'm Angela Canterbury, advocacy director for Public Citizen's Congress Watch division.
As our country faces challenges of historic proportions, one reform could save billions of taxpayer dollars and fulfill the imperative for more transparency and accountability; authentic whistleblower protections for all federal employees and contractors.
Whether the issue is stimulus spending, fraud at a Wall Street firm, prescription drug safety, environmental protection or national defense federal workers must be empowered to safeguard the public trust. But as we've heard today that is unfortunately not the case.
A pervasive culture of secrecy in the federal government is fostered by the ease with which repression and retaliation can be meted out to any employee who dares to point out wrongdoing. In 2007, the non partisan Ethics Resource Center found that more than half of the federal workforce observes misconduct on the job.
But only one-quarter reported wrongdoing because the others feared retaliation, more than one out of ten who did report experienced retaliation. Not only is it a national disgrace that speaking out about wrongdoing is still such a risky endeavor; it's also unsustainable, as the stakes for public programs and funds have rarely been higher.
Whistleblower protections are good government and good business. Under the False Claims Act whistleblower disclosures now account for the majority of fraud recoveries from dishonest contracts, ($)1.45 (billion) of the $2 billion recovered in 2007 alone. Since the Whistleblower Protection Act was last reaffirmed, Congress has passed eight federal laws all of which provide private sector employees with better protections than those of federal employees.
Our current system for protecting federal whistleblowers is badly broken and outmoded. Not all public employees are covered and those who are face a flawed and politicized administrative process. They lack normal access to court. The only court authorized to hear the claims of retaliation, the U.S. Court of Appeals for the Federal Circuit, has a record of ruling against whistleblowers and eroding the law.
H.R. 1507 would go a long way to restore and modernize the Whistleblower Protection Act but it does not go too far. It does not propose sweeping change but rather is an essential update to the policy to ensure functional rights for all federal employees and contractors.
It closes loopholes created by bad court decisions and improves due process rights. Extends necessary coverage to contractors, Transportation Security Administration workers, and national security workers allowing for review procedures sensitive to national security concerns and provides specific protections to federal scientists.
Perhaps the most significant update is the addition of the access to jury trials and more judicial review. Granting the same safety net for federal workers that Congress has already granted to millions of private sector employees a jury -- a trial by jury though only likely to be used by a small minority is essential to ensuring the law will be effective.
Today, I offer one suggestion for improving the bill ensuring whistleblowers aren't forced into arbitration. This legislation rightly attempts to nullify forced arbitration for contract employees. However on April 1st, the Supreme Court held in 14 Penn Plaza versus Pyett that employment discrimination claims brought by union employees can be subject to arbitration, and its holding may extend to whistleblower claims as well. This committee can easily remedy this by adding simple language to the bill.
Like our hard-won civil rights laws, H.R. 1507 serves the public's interest by skillfully achieving the essential but delicate balance between the rights of employees and the effective management of the federal workforce.
Public Citizen strongly endorses swift passage and enactment of H.R. 1507 and we are not alone. This legislation enjoys tremendous, widespread support from the American people, demonstrated not only by the broad array of supporting organizations but also by editorializing of newspapers across the country, and by bipartisan support in the House of Representatives, which has already passed this legislation twice.
The impressive collection of trans-partisan, trans-ideological groups supporting the bill includes more than 292 -- (laughs) -- and is led by a core group of committed legislative advocates. Together, we've called upon President Obama to fulfill his campaign promise and support passage of the bill.
It is extremely encouraging to hear so much commonality between the administration's testimony today and our vision for credible protections. No president has ever been more supportive of true visible reform. However, there are still areas where more discussion is needed to ensure agreement on an effective policy to achieve the ultimate goal of true accountability and transparency that we share.
Public Citizen and our partners stand firmly behind H.R. 1507 and completion of this marathon legislative effort. And we look forward to working with you, the Senate, and the president to finally restore and modernize the Whistleblower Protection Act. Thank you.
REP. TOWNS: Thank you very much, Ms. Canterbury.
Is that Germane or German?
MR. GERMAN: German.
REP. TOWNS: German?
MR. GERMAN: Yeah.
REP. TOWNS: Thank you.
MR. GERMAN: Thank you.
Chairman Towns, members of the committee, thank you for inviting me to testify in support of H.R. 1507, the Whistleblower Protection Enhancement Act of 2009. I represent the American Civil Liberties Union, a nonpartisan organization dedicated to defending the Constitution. The ACLU vigorously supports meaningful legal protections for all whistleblowers, and particularly for employees and contractors within the law enforcement and intelligence communities, where abuse and misconduct can have the most direct consequences to our liberty and our security.
In the weeks leading up to the September 11, 2001, terrorist attacks, FBI officials denied a New York agent's request to start looking for a known al Qaeda operative who had entered the United States, in what the 9/11 Commission would later call a clear misunderstanding of the law. The agent sent an angry e-mail warning that, quote, "someday someone will die," end quote.
At the same time an FBI supervisor in Minneapolis, stymied from pursuing a Foreign Intelligence Surveillance Court order to search Zacarias Moussaoui's computer by headquarters officials, who later admitted that they did not know the legal standard necessary to obtain one, shouted that he was trying "to stop someone from taking a plane and crashing it into the World Trade Center."
These agents clearly knew that that great -- gross mismanagement in the FBI's counterterrorism program posed a substantial threat to public safety, but neither formalized his complaint or pushed it up the chain of command. Perhaps, like one-third of those polled in a 1993 Merit Systems Protection Board study of the federal workforce who did not report illegal or wasteful activities they had seen on the job, they feared retaliation.
After 9/11, President Bush called on FBI, CIA and other intelligence agents to report any breakdown to national security. And FBI Director Robert Mueller vowed to protect bureau whistleblowers. But the record reflects that the few FBI employees who answered this call, myself, Sibel Edmonds, Jane Turner, Robert Wright, John Roberts, and Bassem Youssef were not protected.
The myriad scandals involving the FBI, the CIA and the NSA from spying on political activists, to warrantless wiretapping, to torture more than demonstrate the need for more whistleblowers in the intelligence community. The reforms provided by H.R. 1507 will finally provide real protections to those brave law enforcement and intelligence agents, agency employees, and contractors who are willing to speak out when waste, fraud or abuse of authority endanger our security and violate the law.
But as important what this bill -- as important as what this bill does for our national -- national security whistleblowers is what it does not do to our national security. H.R. 1507 does not authorize intelligence community employees to leak classified information to the media or to any other person who does not have the appropriate security clearances.
In fact, by providing safe avenues for agency employees to report waste, fraud and abuse to the appropriate authorities and to Congress, there will be less of a need to anonymously leak information in order to have serious problems addressed.
I would like to briefly offer two suggestions to strengthen the bill. First, for the reasons I described more thoroughly in my written statement, Congress should make explicit that disclosures made through the normal chain-of-command do not lose their protected status. We don't want these protections to set a trap for responsible agents who report a problem through proper channels.
Second, Congress must make clear that all members of Congress have the right, by virtue of their election, to receive all lawful disclosures of information from CIA, FBI, NSA and other intelligence agency employees and contractors, and that those federal employees and contractors who make lawful disclosures to any member of Congress should be protected under the law.
Congress needs access to information about mismanagement and misconduct within the intelligence community, both classified and unclassified, in order to perform its constitutional duty to check abuses of power and to serve their constituents' interests. But Congress cannot perform effective oversight unless informed federal employees and contractors are willing to tell the truth about what's happening within these agencies. And it's simply unfair to expect them to tell you the truth if they know it will cost them their jobs.
Congress should pass H.R. 1507 and extend meaningful protection to the workforce that is charged with protecting us by granting them full and independent due process rights when they blow the whistle during government investigations or refuse to violate the law, enforce through jury trials in federal courts once administrative measures are exhausted, with Full Circuit Court review. Thank you.
REP. TOWNS: Thank you very much for your testimony.
MR. COLAPINTO: Yes. Thank you very much. Chairman Towns, members of the committee, thank you for inviting me to testify today on H.R. 1507. My name is David Colapinto. I'm the general counsel of the National Whistleblowers Center, a non-profit, non-partisan organization in Washington, D.C. that supports whistleblowers.
To achieve whistleblower protections, Congress must enact reforms with full court access for federal employees. We heard this morning a proposal by the Department of Justice witness for an extra agency board, a new board to hear national security complaints without access to court.
Simply put, the district court access for national security and FBI employees is critical to achieve true reform. Whatever administrative scheme is devised by Congress, if it is without district court access, it is doomed to fail. That conclusion is based on a more than 30-year history that tells us what works and what does not. Laws that permit district court access like H.R. 1507 and Title VII of the Civil Rights Act work.
Other laws like the current civil service system that limit remedies through the administrative process do not. For more than 18 years FBI and intelligence agency employees have had the right to go to federal court on claims of retaliation, go before a jury and seek compensatory damages under Title VII. That exists today.
They can also go to district court under the Privacy Act and seek damages. They can go to district court for pre-enforcement injunctive relief to remedy constitutional violations. Under all of these laws district court access for national security and FBI employees does not air details of national security programs. It just doesn't happen in our federal courts. Likewise, H.R. 1507 as it is constructed would pose no risk to national security under the district court access provisions.
Where national security is related to a case, district courts have many protective measures available to prevent disclosure of classified information. For example, under Title VII, in national security agency cases, federal courts have used pseudonyms and protective orders to protect national security information.
Other protective measures are already in existence within the Rules of Civil Procedure and the Rules of Evidence where federal courts routinely use in-camera for proceedings in order to protect the disclosure of classified information. More importantly, with respect to this legislation, there is nothing in H.R. 1507 that permits either an employee or the federal court to reveal classified information.
In fact, the bill is constructed to expressly authorize the agency to withhold classified information. This issue was studied back in the mid 1990s when it was requested -- a GAO report was requested by the former Post Office and Civil Service Committee of the House. The report was issued in 1996 and it found that intelligence agencies already have in place numerous safeguards to protect classified information in national security interests in employee federal courts cases and in jury trials in Title VII cases.
The GAO concluded, if Congress wants to provide CIA, NSA and DIA employees with standard protections that most other federal employees enjoy, it could do so without unduly compromising national security. And here is a copy of the report, which is publicly available on the Internet. And I urge anyone interested in this issue to read it. Because the GAO conducted an audit and determined that information on sensitive intelligence operations can be converted into unclassified publicly available documents.
Intelligence agency adverse action files contain generally no national security information. The files reviewed by GAO, the DIA and the NSA actually can -- 98 percent of those files, contained no such information. And that's the case file that is used to process the employee termination or discipline case.
GAO reviewed case files at federal courts and found declassified and redacted documents were capable of providing sufficient information to litigate the cases for both the agency and the employee. The conclusion, based on 30 years of history, and 18 years under Title VII is clear, the administrative process alone won't work.
Under the current system, I can tell you what happens. You heard from Ms. Greenhouse earlier, and that happens repeatedly by lawyers who represent federal employees. When they come into the office it has become standard for attorneys to have to tell federal employees and advice them that filing the whistleblower claim is futile.
The statistics bear that out, 95 (percent) to 99 percent failure rate. To be honest with your client you have to tell them, you have a 95 (percent) to 99 percent chance of losing your case. And nothing is more demoralizing than having to tell a client, particularly a dedicated federal employee, particularly employees who work at national security or the FBI agencies, that remaining silent and not fighting retaliation is their best legal option.
That won't change unless we have district court access for employees including national security and FBI employees.
And I thank you very much.
REP. TOWNS: Thank you very much, Mr. Colapinto.
Let me -- we've been joined by Congressman Cummings from Maryland as well.
Mr. Fisher, do you see a significant difference in the position taken by the current administration in today's testimony and the historical position you outlined?
MR. FISHER: I -- my concern is that if you look at Justice Department positions over the years, they will say the president has exclusive control of the national security information even though you and other members have clearance, you don't have a need to know and they can block you.
I say that, frankly, and what was said today because when the Justice Department testified today, after talking about President Washington, the Justice Department today, then refers to testimony back in 1998 with regard to congressional oversight. And this is a quote from today's testimony from the Justice Department, the Constitution quote, "Does not permit Congress to authorize subordinate executive branch employees to bypass these orderly procedures for review and clearance by vesting them with a unilateral right to disclose classified information, even to the members of Congress."
So, if I read that correctly, I think they are -- and I think it's underscored by their idea of some sort of entity within the executive branch to review that. And I think what they are saying is that employees in the agencies have no right to come here. They do, under the 1998 CIA whistleblower going to the intelligence committees. But other than that, I think -- I don't see the change. I think, they decided today not to expressly talk about constitutional issues as they have in the past, but I don't see the change.
REP. TOWNS: Mr. Turner, you have a -- want to comment on that?
MR. TURNER: I think Dr. Fisher is right. I think that they are doing what OLC (ph) and the executive branch has done throughout our history. And that is trying to uphold the Constitution, which as it has always been interpreted gives the president the final decision on classified information. And I think they -- as a matter of policy -- they may well prefer this. But I think they have a duty to the Constitution justice members of this committee too.
REP. TOWNS: Thank you very much.
Mr. Devine, you mentioned in your testimony the importance of jury trials for federal employees. Yet it is our understanding that very few of the employees will ever exercise that option because of the expense of bringing the case to federal court. If that's the case, why is this right so important?
MR. DEVINE: Well, Mr. Chairman, first it matters because this is very much a litmus test of the president's credibility on transparency issues. His pledge is for access to court and it will be difficult to take this commitment serious if he leaves federal workers as the only ones without normal court access.
But the main reason, and it far transcends the current administration, is in the high stakes cases that are the primary reason the Whistleblower Protection Act was passed, there is no chance for justice at the Merit Systems Protection Board. The point of the -- ultimate point of the -- (inaudible) -- the unanimous mandate is not just the congressional commitment to be fair to government workers. It's the impact on the public.
And the board of the Merit Systems Protection Board for 30 years has rubberstamped termination of anyone who challenged a significant government breakdown.
Just to give you some examples of the sophistry here. A federal air marshal, in a week with this whistleblowing blocked the transportation security administration from removing air marshal coverage on cross-country flights during a hijacking alert. They -- basically, they've blown their budget on contractors and they want them to get back to even by canceling the air marshals on these flights during an alert.
Now, the whistleblower stopped them, he was fired for it. It has taken him three years, he hasn't gotten a hearing. And currently, the issue in the case is the preliminary ruling that he is not covered by the Whistleblower Protection Act. And that's because a little problem will rise that it doesn't allow public disclosures of information whose release is specifically prohibited by statute.
And the merit board said well TSA was authorized by Congress to issue regulations. So when TSA issued a regulation that imparts blanket secrecy virtually ending any public whistleblowing that qualified as a specific statutory prohibition. Now, every agency in the government has that authority and if this decision sticks it means the Whistleblower Protection Act rights will only exist to the extent that they are not contradicting agency regulations.
That's hopeless, as a shield for government accountability. The bottom-line is that for whistleblowers seeking justice in serious breakdowns of government service, the MSPB is the twilight zone.
REP. TOWNS: Thank you very much. I yield five minutes to the gentleman from Maryland. Mr. Cummings.
REP. ELIJAH E. CUMMINGS (D-MD): I am sorry, I was at another hearing but I want -- you know, one of the things --
Thank you very much Mr. Chairman, and thank you for holding this hearing.
I think it is extremely important that we do every thing in our power to protect whistleblowers. We had a case in Maryland, which I got involved with, where we had -- in one of our hospitals, someone who blew the whistle when her superiors who knew that AIDS test -- HIV AIDS and hepatitis B tests were being administered by faulty machinery.
I'm talking about hundreds of them. And all of it was hush-hush and this happened about four or five years ago. And by doing what she did, I believe that she saved a lot of lives. I think that when we look at -- going back to your comments, Mr. Devine -- it's so very important that we have transparency.
Mr. Barofsky, the special IG for the TARP told us in another hearing that he expected numerous cases. And if I remember correctly he said, "Hundreds of them," coming out of this TARP situation.
And so I think that, you know, I often say that it's -- a lot of times we don't act when we ought to act, and then if something happens and then we look back and say we wish we had -- we had. And Mr. Chairman, I think that this is one of those times, where we are going to have to act. And I know there are some that may disagree.
But the fact is that that I think America has called out for transparency and as one -- I have often heard it said that one of the greatest things that you can do is shine a light so that all can see to deal with or address this whole issue of -- those kind of -- the problems that can come up in government.
And one of the things that I have also noticed is that in some instances it is almost impossible to find out certain information unless you do have a whistleblower. And going back to what you were saying, Mr. Colapinto -- did I screw up your name?
MR. COLAPINTO: That's Mr. Colapinto, yes, thank you.
REP. CUMMINGS: Yeah, I went close, all right. But you know, some kind of way we also have to figure out how to put people in a position, where they feel comfortable even coming forward and that they will not be harmed themselves. Other than that you might as well throw this -- I mean -- we might as well -- or you -- if we have that kind of situation where they feel threatened, then it -- you won't get that kind of response. In Baltimore we have a situation now where -- where there is no cooperation, we have literally, about 20 percent of our most serious cases like murders and whatever, not going to trial. Why? Because of witness intimidation. Why? Because they believe they are going to be harmed. It's a second cousin to this, but it's the same kind of concept.
In order to address the elements of our society, a lot of times you got to have -- and I think most of the time you got to have the cooperation of people. So, I just have, you know, just one question to all of you, one of the arguments that opponents of expand the whistleblower protection is that we will give a forum to people who just want to complain about management or worse are vindictive against their employer and what to get even.
I want to hear some response -- and what's your response to those critics. And I noted there are several systems in place to weed out illegitimate claims from the others, and I'd just like to know how do we address that?
MR. DEVINE: Well --
REP. CUMMINGS: Mr. Devine.
MR. DEVINE: Congressman, that's an objection that can be made to every right that Congress ever legislates. Every right can be abused. But you folks make a balancing test, whether the benefits to the public outweigh the risks from the potential for abuse. And I can't think of any legislation where the balancing test is more in favor of the rights than with whistleblowers.
The benefits to the public are incredible, we have increased our recovery under the False Claims Act by almost 200 times annually, by in franchising whistleblowers. The issue probably comes down to a question of fear. What we hear over and over again is that, emboldened whistleblowers, if they have normal rights emboldened whistleblowers will bully their managers so they'll be afraid to impose accountability when it's needed.
Now, the solution to that, probably, is to hire managers who aren't afraid to exercise their authority. That's not a reason for secrecy. But the fear that we've got without this law, is secrecy enforced by repression, when there is abuses of power that betray the public. That's the kind of really dangerous fear we have.
And it is because of that fear that problems, such as, domestic surveillance turn to blanket violation of constitutional rights instead of being nipped in the bud. That torture becomes almost a tradition because it wasn't challenged in a timely manner when we first started straying from the Geneva Convention.
That is how little problems turn into disasters because people are afraid to challenge illegality. So, don't have a whole lot respect for the argument that we can't give people rights because they might scare the power structure with them.
REP. CUMMINGS: I see my time is up, Mr. Chairman, and I want to thank you for your indulgence.
REP. TOWNS: Thank you. Thank you very much.
As we have seen from today's hearing, whistleblowers play a vital role in promoting government accountability and transparency. This has been an informative meeting. And I look forward to working with the administration and the Senate to enact the bill. I would like to ask unanimous consent that a number of witness statements we received -- that we receive, be submitted for the record. And without objection the committee stands adjourned.
And let me thank the witnesses for their testimony. We look forward to working with you as we move forward.
Thank you so much. (Sounds gavel.)