Challenges and Necessary Reforms

Whistleblowers play a crucial role in holding our government accountable. But the system is failing them.

Whistleblowers in all parts of the federal government face an uphill battle from the moment they decide to blow the whistle. While Congress has codified protections for whistleblowers, thanks in part to the leadership of Chairman Connolly and Ranking Member Meadows, systemic failures often render those protections meaningless. For example, when I testified before this subcommittee three years ago, I warned that the Merit Systems Protection Board (MSPB) lacked a quorum. Now, it doesn’t even have a single member.

This situation is disastrous for whistleblowers who are subject to retaliation. Currently, with the MSPB out of commission, federal whistleblowers have no way to get temporary relief from personnel actions while their cases are pending. Without the board, the Office of Special Counsel, which advocates on whistleblowers’ behalf, has no way to request a stay of personnel actions while it investigates alleged retaliation, because the decision to grant or deny such a stay is left to the members of the MSPB. However, whistleblowers don’t just rely on the MSPB for temporary relief: The board is also the final step in the federal bureaucracy that most whistleblowers must go through to get permanent relief from retaliation and corrective action (such as reversal of a demotion and receiving back pay, respectively). The lack of a quorum at the MSPB, now for over three years, means all whistleblowers fighting to enforce their whistleblower protections are in bureaucratic limbo. When the Office of Special Counsel issues a finding in a whistleblower’s favor, the whistleblower’s agency appeals to the MSPB to review the finding—but without the board, the case joins a 2,000-plus backlog of cases awaiting review. So whistleblowers are both unable to move their cases to a court and unable to enforce Office of Special Counsel decisions. This roadblock for whistleblowers could be eliminated relatively simply, if the White House and the Senate made it a priority to confirm qualified members to the board.

Better still, Congress could pass a law allowing whistleblowers to bypass the MSPB and take their retaliation complaints directly to a court to be heard by a jury of their peers. Federal whistleblowers are the only major sector of the labor force that does not have the right to have their cases tried before a jury. Even contractors, who have traditionally had weaker protections than their federal employee counterparts, have a statutory right to bring a retaliation complaint to a jury of their peers. It is long past time for federal employees to have this same right, the importance of which is underscored by the problems caused by the MSPB being inactive.

Even with a fully functioning MSPB, many whistleblower reprisal cases take years, and it is often not practical for whistleblowers to fight to enforce their legal protections. Access to jury trials, while necessary and overdue, may present a similar problem. Accordingly, Congress should ensure that whistleblowers facing reprisal are entitled to interim relief while they seek to enforce their legal protections. Congress should make this interim relief available to whistleblowers who, in a request to the MSPB for a stay before their retaliation case is fully adjudicated, can show that the personnel action they face is likely being taken because they blew the whistle—also known as showing a prima facie, or sufficient on its face, case of retaliation. (Of course, this is only possible when the MSPB has a quorum.)

Whistleblowers also face additional problems while trying to enforce their protections. There are significant weaknesses across all sectors of federal whistleblower protection laws that Congress must address.

For example, whistleblowers in the intelligence community lack a mechanism to enforce their statutory protections. Rather than being able to petition a body like the MSPB or a court to enforce their protections, intelligence community whistleblowers can only turn to either their agency’s inspector general or the inspector general for the intelligence community. While inspectors general play an essential role in investigating whistleblower disclosures and retaliation, they are unable to enforce their recommendations for corrective action against the agency that retaliated against the whistleblower. Under Presidential Policy Directive 19, the last level of review in an intelligence community whistleblower’s case is a panel of three inspectors general from the intelligence community, referred to officially as an External Review Panel. However, those panels’ decisions are merely recommendations that the head of the whistleblower’s agency can disregard without consequence. Leaving the enforcement of whistleblower protection laws to the agencies responsible for retaliation renders those protections all but meaningless.

In 2011, the House passed a bill that would allow intelligence community whistleblowers to enforce their legal protections using the same mechanisms available to whistleblowers in other sectors of the government. Despite the support of the House and civil society, that bill did not make it through the Senate, and the provision giving intelligence community whistleblowers the right to independent enforcement of their legal protections was excluded from later reforms.

Events surrounding the whistleblower complaint that helped spark the impeachment inquiry into President Trump underscore several additional critical issues with intelligence community whistleblower laws. Last year, when, at the direction of the White House, acting Director of National Intelligence Joseph Maguire failed to transmit the credible complaint of urgent concern to the congressional intelligence committees within seven days of the Ukraine whistleblower’s disclosure, he demonstrated a fundamental problem with the Intelligence Community Whistleblower Protection Act. The law put in place procedural hoops—such as the requirement that inspectors general send complaints to the director of national intelligence, who then transmits them to Congress—in order to prevent the unauthorized release of national security information to the public or our adversaries. However, it is clear now that these procedural hoops are to the potential detriment of proper oversight. In fact, the inspector general for the intelligence community told Congress that acting Director of National Intelligence Maguire’s failure to transmit the whistleblower’s complaint or any information about the complaint to Congress “may reflect a gap in the law that constitutes a significant problem and deficiency.”

The Ukraine whistleblower’s disclosure was made available to Congress and the public thanks to proactive steps taken by the whistleblower and by Intelligence Community Inspector General Michael Atkinson to alert Congress of its existence, not because the law worked as intended. It is clear that lawmakers intended to create a path for intelligence community whistleblowers to make disclosures directly to Congress, through the Intelligence Community Whistleblower Protection Act of 1998. Congress must clarify the law so that future complaints are not inappropriately withheld under the same standard and legal justification promulgated by the Justice Department’s Office of Legal Counsel in reference to the Ukraine whistleblower’s disclosure. Congress should remove all legal barriers for whistleblowers or the inspector general for the intelligence community to communicate directly to the intelligence committees.

Whistleblowers in the military also confront extraordinary challenges. Like intelligence community whistleblowers, they lack an independent means to enforce their legal protections, and must rely on the leadership of their branch of the armed services to enforce the decisions of an inspector general. If the head of their branch decides against ordering corrective action, the only recourse available to a whistleblower is to petition the secretary of defense.

Furthermore, in order to benefit from legal protections against retaliation, whistleblowers in the military have to prove that their agency wouldn’t have taken a personnel action against them, such as a demotion or suspension, if they hadn’t blown the whistle. So while retaliating against a military service member for making a protected disclosure is prohibited, the burden of proof is on the whistleblower to show that there is no other justification for the retaliatory action before a retaliation complaint will be substantiated by an inspector general. In contrast, in whistleblower reprisal cases for civilians, the burden is placed on the agency to prove there was no retaliation. Considering the significant power and resource imbalance between an individual whistleblower and the Department of Defense, it is obvious that the law is stacked against whistleblowers. While there have been legislative initiatives to give service member whistleblowers greater parity with civilian whistleblowers, none have yet been signed into law. It is past time to put service members on equal footing with civilians when they blow the whistle on waste, fraud, or abuse in the Department of Defense.

Whistleblowers across the federal government are frequently subjected to retaliatory investigations, a personnel practice that is only officially considered whistleblower retaliation at the Department of Veterans Affairs. Retaliatory investigations are used to harass whistleblowers and tie up resources unnecessarily. Congress should expand prohibited personnel practices across all government sectors to include retaliatory investigations. Additionally, if Congress truly wants to ensure that blowing the whistle is not a career-ending decision for intelligence community employees, it must also make retaliatory security clearance actions, such as revoking someone’s clearance, a violation of the Whistleblower Protection Act so that determinations about potentially retaliatory security clearance actions may be reviewed by the adjudicative bodies that currently resolve most disputes concerning whistleblower retaliation.

There is also a host of whistleblowers whose cases are outliers and deserve congressional attention. One such case is that of Mike Helms, an intelligence specialist who deployed as part of the Army’s Intelligence and Security Command’s (INSCOM) 902d Military Intelligence Group. Helms was injured in Iraq in 2004, after a roadside bomb went off near the convoy of Humvees for which he was lead gunner. After the Army repeatedly denied Helms the medical treatment that he was entitled to, he blew the whistle. The Army then revoked his security clearance, and he filed a complaint alleging that this was retaliation for his blowing the whistle. Although the Department of Defense Office of Inspector General substantiated Helms’s complaint in 2010, at the time there was no sufficient administrative process to enforce any remedy to reverse the decision to revoke his security clearance in retaliation. Presidential Policy Directive 19, issued in 2012, directed each intelligence agency to create such a process, but the inspector general for the intelligence community has rejected Helms’s requests to review his case pursuant to those procedures. Helms’s experience highlights the plight of whistleblowers who fall through the cracks created by the often piecemeal approach to improving whistleblower protections across the government.

Finally, recent events have highlighted a troubling lack of clarity about whether whistleblowers and those who voice concerns have a legal right to anonymity. First, the president, some media figures, and even Members of Congress have criticized the Ukraine whistleblower’s decision to remain anonymous. President Trump has gone so far as to retweet a post that contained the name of a federal employee suspected of being the whistleblower. The New York Times has published identifying information about the whistleblower in an effort to establish the credibility of the whistleblower’s complaint. At the same time, the Washington Post is suing the Special Inspector General for Afghanistan Reconstruction (SIGAR) to force the release of the identities of individuals who spoke to the watchdog about the war in Afghanistan.

The Inspector General Act of 1978 states that inspectors general are obligated to maintain a whistleblower’s or source’s confidentiality unless disclosure is “unavoidable.” While the statutory language could be stronger, the default standard is clearly that those who wish to remain anonymous so they can report wrongdoing or concerns without fear of retaliation should be able to do so.

However, inspectors general are not the only people in government who are in a position to out a whistleblower. When a whistleblower raised concerns with their supervisors before formally filing a complaint with the Office of Special Counsel or an inspector general, then that supervisor is also in a position to out the whistleblower and the prohibition in the Inspector General Act does not apply. Whistleblower laws, and various other statutes, as currently written might already provide relief for whistleblowers who have had their identities exposed without their consent, but without case law or explicit codified text, whistleblowers are left wondering whether they have an enforceable right to anonymity. This lack of clarity will no doubt dissuade some would-be whistleblowers or investigative sources from coming forward.

Maintaining anonymity is one of best ways for whistleblowers to protect themselves from professional and personal retaliation. I know the Members of the House Committee on Oversight and Reform understand the importance of maintaining a whistleblower’s anonymity; indeed, both the Majority and the Minority committee websites promise to maintain the confidentiality of whistleblowers who disclose wrongdoing to the committee.

As Ranking Member Meadows, a co-chair of the House Whistleblower Protection Caucus, said in his remarks at a gathering for the 2017 National Whistleblower Day, for those who blow the whistle, “retaliation is almost certain.” This is an unfortunate reality. However, Congress can and should address the loopholes and weaknesses in the various whistleblower protection laws to give whistleblowers a fighting chance of prevailing against those who retaliate against them.