Silencing the Whistle-Blowers
By EYAL PRESS
LAST week Pfc. Bradley Manning returned to court for his final pretrial hearing in the WikiLeaks case, an appearance that has renewed debate about how to balance the imperatives of national security against the rights of whistle-blowers.
But while Private Manning’s ordeal has received exhaustive news coverage, it may ultimately have a less profound bearing on this tension than a barely noticed memo quietly released by the Obama administration earlier this year.
Issued on Jan. 25, the memo instructs the director of national intelligence and the Office of Personnel Management to establish standards that would give federal agencies the power to fire employees, without appeal, deemed ineligible to hold “noncritical sensitive” jobs. It means giving them immense power to bypass civil service law, which is the foundation for all whistle-blower rights.
The administration claims that the order will simply enable these agencies to determine which jobs qualify as “sensitive.” But the proposed rules are exceptionally vague, defining such jobs as any that could have “a material adverse impact” on national security — including police, customs and immigration positions.
If the new rules are put in place, national security could soon be invoked to deny civil servants like Franz Gayl the right to defend themselves when subjected to retaliation. Back in 2010, Mr. Gayl was accused of engaging in a pattern of “intentional misconduct” and suspended from his job. A Marine Corps adviser who had been deployed to Iraq in 2006, Mr. Gayl claimed he was being punished for publicly disclosing that Pentagon bureaucrats had ignored battlefield requests for mine-resistant armored vehicles, at a time when roadside bombs were killing and maiming soldiers.
Like many whistle-blowers, Mr. Gayl appealed to the Merit System Protections Board, an independent, quasi-judicial agency created in 1978 to safeguard the rights of civil servants, which ordered him to be reinstated.
Mr. Gayle isn’t alone. In the past decade, whistle-blowers have exposed everything from the Bush administration’s efforts to censor reports on climate change to the Food and Drug Administration’s failure to stop the sale of unsafe drugs like Vioxx.
Almost invariably, those who have spoken out have faced harsh reprisals, a problem addressed by the Whistleblower Protection Enhancement Act, a landmark bill passed by Congress last year that provides compensatory damages to whistle-blowers who win their cases after an administrative hearing. President Obama signed the law; he also issued a directive calling for new whistle-blower protections for employees in the intelligence community.
How valuable will the president’s steps be if, in the future, government agencies can simply dismiss insubordinate workers by declaring them unsuitable for an amorphous pool of “sensitive” jobs without having their decisions independently reviewed?
It’s not just whistle-blowers who would be affected. To understand the potential scope of the Jan. 25 memo, consider the case of Berry v. Conyers, involving two low-level Defense Department employees — one an accounting technician, the other a commissary stocker — who were suspended and demoted after their jobs were declared “noncritical sensitive.” The Jan. 25 memo was issued one day after a federal appeals court announced that it would review an earlier decision that went against the employees.
Whistle-blower advocacy groups immediately called foul, saying the memo would effectively eliminate the enforcement of all civil service rights.
In response, the Justice Department inserted a sentence into its brief in the case, noting that the defendants were not whistle-blowers, and that it was not seeking to undermine the Whistleblower Protection Enhancement Act. But the brief did not explain what rights whistle-blowers in “sensitive” jobs would have if an agency targeted them in the future.
The Obama era has been a strange time for whistle-blowers. Agencies with investigative powers have become more responsive to tips from whistle-blowers. Important new laws have been enacted.
Yet during Mr. Obama’s first term, a record number of national security officials were prosecuted for allegedly leaking classified information to the press, a zeal that continues today, with aggressive tactics employed to locate officials who leaked information to Fox News and The Associated Press.
The administration apparently strongly supports whistle-blower rights — except when that support collides with its desire to appease the national security establishment.
It is surely too late for Mr. Obama to convince anyone that he intends to run the most open and transparent administration in history, as he promised to do at the outset of his first term. But it is not too late for him to issue a public statement, or another memo, affirming his refusal to undermine the landmark protections for federal workers he signed into law last year.