secure a much-needed bipartisan victory, the Obama administration is
trying to secure passage of protections for government whistleblowers.
But some advocacy groups are complaining that the legislation does not
go far enough to protect government employees in the national security
field and, in fact, would roll back protections that FBI whistleblowers
now have," reports
Kasie Hunt for Politico.com.

“The problem — and there is a problem — is that the new regulations or
the modified procedures could be written by the FBI instead of the
attorney general and that would allow the FBI to write the rules that
could be applied to its own alleged misconduct,” said Tom Devine, legal
director of the Government Accountability Project. “That’s a conflict
of interest, and it’s not acceptable.”

But bill sponsor Sen. Daniel Akaka (D-Hawaii) maintains the legislation
would add to current protections. “Currently, if a courageous FBI
employee risks their career to report fraud or abuse, he or she only
has access to an internal [Department of Justice] process for
whistleblower claims,” spokesman Jesse Broder Van Dyke said. “Sen.
Akaka ensured that the Senate bill preserves the existing agency
process, while giving FBI whistleblowers an additional recourse: the
right to appeal their case” to an independent appeals board created by
the bill specifically to handle complaints from within intelligence
agencies, including the FBI, the CIA and the National Security Agency.

Devine and other advocates have been pushing legislation to strengthen
protections for government whistleblowers for years. In President
Barack Obama and a Democratic Senate, they thought they had found
partners willing to give government employees who are illegally fired
access to jury trials for the first time — and to acknowledge that
national security officials, currently exempt from the federal
whistleblower process, have certain rights within the system.

But critics say the administration let national security officials
write the sections that would govern how to protect a CIA or FBI agent
who gets fired. If the Senate’s bill becomes law, intelligence
community agency heads would be able to dismiss complaints without
judicial review. Employees could appeal to the new Intelligence
Community Whistleblower Protection Board made up of people appointed by
the agencies it oversees. The board would not have the power to give a
whistleblower his or her job back and could award only up to $300,000
in damages.

“A lot of federal workers will benefit from the bill, but national
security whistleblowers will be harmed,” said Stephen Kohn, who runs
the National Whistleblowers Center. “Our position is, you cannot use
the Whistleblower Enhancement Act as a vehicle to give the national
security establishment more power.”

The national security provisions would apply to the FBI because it’s
part of the intelligence community. But FBI whistleblowers are
protected under current law that doesn’t apply to other agencies. FBI
employees file complaints to the Justice Department, and allegations
are investigated by the inspector general or the Office of Professional
Responsibility. If the Senate bill becomes law, complaints from FBI
whistleblowers would be handled within the agency, Kohn said. 

Devine said both Senate staff and the White House have insisted they
don’t intend to roll back the current FBI protections. “We’ve explained
that to the committee staff. They thought they had solved the problem;
they thought that they were retaining the current rights,” he said.
since the Senate Homeland Security Committee approved the legislation
last July, the promised changes haven’t come. “This language hasn’t
changed in months. I had thought that there was a possibility that it
had changed, but it hasn’t changed,” said Danielle Brian, executive
director of the Project on Government Oversight.

A bipartisan group of Senate staffers are due to meet this week to try
to strike a deal that would allow leaders to send the bill to the
Senate floor in coming months.

Kohn’s group breaks with other whistleblower advocates, including POGO
and GAP, because he’s willing to try to hold up the entire bill over
the national security provisions. The others — many of whom have been
working for decades to earn federal whistleblowers the right to a jury
trial — said killing a good bill will set back the cause for years.

“I have all kinds of issues with the structuring of the national
security provisions of the bill. But my perspective is that [it] was a
hard fight to get as far as they got in the Senate, and I understand
that the perfect is the enemy of the good. You need to be able to get
something in front of the Senate that they’re going to pass,” Brian
said. “Before this year, the Senate had not acknowledged that national
security whistleblowers should be protected at all, and they did not
acknowledge that any whistleblowers should have access to trials.”

“If we don’t get this bill out of the Senate, there could be nothing.
… Our only chance to get credible national security whistleblower
rights is a compromise between a weak due process provision coming out
of the Senate and full due process — access to court — coming out of
the House,” Devine said.

The House bill would allow national security whistleblowers access to
federal courts if they charged that they were illegally fired or
refused a promotion. Reps. Chris Van Hollen (D-Md.) and Todd Platts
(R-Pa.) tried unsuccessfully to attach the House legislation to the
stimulus package passed last year.

Both minority and majority staff from the Senate Intelligence,
Judiciary and Homeland Security committees will huddle this week. But
it’s fairly unlikely they will address changing rules for the FBI.
Instead, they’re working to assuage concerns from Missouri Sen. Kit
Bond, the top Republican on the Intelligence Committee, who has been
holding up the bill because he doesn’t think it does enough to protect
classified information.

“Sen. Bond is committed to passing stronger protections and is working
to resolve troublesome provisions in the current draft to ensure both
whistleblowers and our classified information is protected,”
spokeswoman Shana Marchio said.

Brian said she doesn’t anticipate increased protections for national
security whistleblowers. “My understanding is, the only thing that’s
going to change is a reflection of the negotiations that they’re making
with Sen. Bond,” she said.

“The administration has worked with the Senate to produce bipartisan
legislation that would increase the rights and protections available to
whistleblowers — legislation that had been stalled in Congress in prior
years,” said White House spokesman Ben LaBolt. “The administration will
continue to work with the Senate to ensure that the legislation
strengthens protections for whistleblowers across the government.”