[Senate Hearing 108-414]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-414

S. 1358--THE FEDERAL EMPLOYEE PROTECTION OF DISCLOSURES ACT: AMENDMENTS 
                  TO THE WHISTLEBLOWER PROTECTION ACT

=======================================================================

                                HEARING

                               before the


                              COMMITTEE ON
                          GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                                   ON

                                S. 1358

  TO AMEND CHAPTER 23 OF TITLE 5, UNITED STATES CODE, TO CLARIFY THE 
    DISCLOSURES OF INFORMATION PROTECTED FROM PROHIBITED PERSONNEL 
 PRACTICES, REQUIRE A STATEMENT IN NONDISCLOSURE POLICIES, FORMS, AND 
   AGREEMENTS THAT SUCH POLICIES, FORMS, AND AGREEMENTS CONFORM WITH 
   CERTAIN DISCLOSURE PROTECTIONS, PROVIDE CERTAIN AUTHORITY FOR THE 
                SPECIAL COUNSEL, AND FOR OTHER PURPOSES

                               __________

                           NOVEMBER 12, 2003

                               __________

      Printed for the use of the Committee on Governmental Affairs




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                   COMMITTEE ON GOVERNMENTAL AFFAIRS

                   SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska                  JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio            CARL LEVIN, Michigan
NORM COLEMAN, Minnesota              DANIEL K. AKAKA, Hawaii
ARLEN SPECTER, Pennsylvania          RICHARD J. DURBIN, Illinois
ROBERT F. BENNETT, Utah              THOMAS R. CARPER, Deleware
PETER G. FITZGERALD, Illinois        MARK DAYTON, Minnesota
JOHN E. SUNUNU, New Hampshire        FRANK LAUTENBERG, New Jersey
RICHARD C. SHELBY, Alabama           MARK PRYOR, Arkansas
           Michael D. Bopp, Staff Director and Chief Counsel
            Jennifer A. Hemingway, Professional Staff Member
       Michael J. Russell, Staff Director, Financial Management,
          The Budget, and International Security Subcommittee
      Joyce A. Rechtschaffen, Minority Staff Director and Counsel
                  Lawrence B. Novey, Minority Counsel
       Jennifer L. Tyree, Minority Counsel, Financial Management,
          The Budget, and International Security Subcommittee
                      Amy B. Newhouse, Chief Clerk



                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Fitzgerald...........................................     1
    Senator Akaka................................................     2
    Senator Levin................................................     4

                               WITNESSES
                      Wednesday, November 12, 2003

Peter Keisler, Assistant Attorney General, Civil Division, U.S. 
  Department of Justice..........................................     5
Elaine Kaplan, Attorney, Bernabei and Katz, PLLC.................    14
Thomas Devine, Legal Director, Government Accountability Project.    16
Stephen M. Kohn, Chairman, Board of Directors, National 
  Whistleblower Center...........................................    18
William Bransford, Partner, Shaw, Bransford, Veilleux & Roth, 
  P.C., on behalf of the Senior Executives Association...........    20
Hon. Charles E. Grassley, a U.S. Senator from the State of Iowa..    27

                     Alphabetical List of Witnesses

Bransford, William:
    Testimony....................................................    20
    Prepared statement...........................................   160
Devine, Thomas:
    Testimony....................................................    16
    Prepared statement with attachments..........................    72
Grassley, Hon. Charles E.:
    Testimony....................................................    27
    Prepared statement...........................................   167
Kaplan, Elaine:
    Testimony....................................................    14
    Prepared statement with an attachment........................    63
Keisler, Peter:
    Testimony....................................................     5
    Prepared statement with an attachment........................    31
Kohn, Stephen M.:
    Testimony....................................................    18
    Prepared statement with attachments..........................   132

                                Appendix

Susanne T. Marshall, Chairman, U.S. Merit Systems Protection 
  Board, prepared statement......................................   175
Questions and responses for the Record from:
    Ms. Marshall.................................................   182
    Mr. Keisler..................................................   185
    Ms. Kaplan with an attachment................................   193
    Mr. Devine...................................................   199
    Mr. Kohn.....................................................   203
    Mr. Bransford................................................   215
Copy of S. 1358..................................................   218

 
S. 1358--THE FEDERAL EMPLOYEE PROTECTION OF DISCLOSURES ACT: AMENDMENTS 
                  TO THE WHISTLEBLOWER PROTECTION ACT

                              ----------                              


                      WEDNESDAY, NOVEMBER 12, 2003

                                       U.S. Senate,
                         Committee on Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 3:37 p.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Peter G. 
Fitzgerald presiding.
    Present: Senators Fitzgerald, Levin, and Akaka.

            OPENING STATEMENT OF SENATOR FITZGERALD

    Senator Fitzgerald. The Committee will now come to order. 
Having completed the hearing on the nomination of Scott Bloch 
for the position of Special Counsel, we move now to a related 
hearing to consider legislation, S. 1358, the Federal Employee 
Protection of Disclosures Act. I am chairing this hearing 
because the bill was referred to and polled out by the 
Subcommittee on Financial Management, the Budget, and 
International Security which I Chair. I am pleased to recognize 
the Ranking Member, Senator Akaka, who is not only the Ranking 
Member of the Subcommittee on Financial Management but also the 
lead sponsor of S. 1358 which we will consider today.
    The Federal Employee Protection of Disclosures Act was 
introduced on June 26, 2003, by Senators Akaka, Grassley, 
Levin, Leahy, and Durbin. Senator Dayton joined as a co-sponsor 
of the bill on July 9, 2003. On October 8, 2003, the 
Subcommittee on Financial Management polled this bill out to 
the full Governmental Affairs Committee for consideration.
    To put this bill in historical context, 1989 was a landmark 
year for whistleblower protection. By a vote of 97 to 0, the 
Senate passed Senator Levin's Whistleblower Protection Act, 
which subsequently was signed into law. Among other 
innovations, the Whistleblower Protection Act introduced a 
burden of proof allocation that was unprecedented, but has 
since become the benchmark for whistleblower protection laws. 
In essence, the 1989 law eases the burden for employees to 
establish a prima facie case of retaliation for whistleblowing 
activity. And once the employee establishes that prima facie 
case, the burden then shifts to the agency to prove by clear 
and convincing evidence, which is one of the highest 
evidentiary burdens in civil law, that the agency would have 
taken the same action in the absence of the employee's 
whistleblowing.
    In 1994, Congress further strengthened whistleblower 
protections. In 2001, Congress considered legislation similar 
to the bill we consider today but did not take final action 
before adjournment, sine die. S. 1358 would amend Federal 
whistleblower laws to, among other things, clarify the scope of 
protected disclosures, specifically to address certain court 
decisions that limit that scope; include actions with respect 
to security clearances within the scope of prohibited personnel 
practices; include investigations within the scope of 
prohibited personnel practices; require an informative 
statement in non-disclosure policies and agreements; provide 
independent litigating authority for the Office of Special 
Counsel; and open appeals to all Federal Circuits rather than 
the current exclusive jurisdiction of the U.S. Court of Appeals 
for the Federal Circuit.
    We owe much to the many Federal employees who have had the 
courage and fortitude to reveal government waste, fraud, abuse 
and gross fiscal mismanagement. Over the years these 
whistleblowers have saved the taxpayers hundreds of millions of 
dollars and disclosed endangerment of public safety by 
officials in the Federal Government. It behooves us in Congress 
to encourage this bravery in the Federal workforce. We 
compliment Senator Grassley, Senator Levin, and Senator Akaka 
for their consistent and forceful advocacy of efforts to 
strengthen protections for whistleblowers.
    On the other side of the ledger, we want to remain mindful 
of the challenges in managing the vast Federal workforce. Many 
whistleblowers are heroes. But some who claim that mantle in 
fact dishonor those who are. And for many Federal supervisors 
who are unfairly accused of retaliation, the experience can be 
damaging. Whistleblower challenges and the ensuing litigation 
can be expensive and time-consuming, diverting valuable agency 
resources to protracted defense.
    Moreover, the easier it becomes to establish a prima facie 
case of whistleblower retaliation, the more likely it becomes 
that Federal managers will hesitate to take steps to eliminate 
unproductive or counterproductive appointees, impose reasonable 
disciplinary measures, or insist on efficiencies that some 
workers might challenge as retaliatory. Therefore, in 
revisiting this important area of law, I look forward to 
hearing specifically from the witnesses how their views best 
promote this delicate balance between encouraging good faith 
whistleblowing on the one hand, and on the other, encouraging 
proactive and non-risk averse management of the Federal 
workforce.
    Before I introduce our first witness I would like to turn 
to our Ranking Member, Senator Akaka, for his opening 
statement.

               OPENING STATEMENT OF SENATOR AKAKA

    Senator Akaka. Thank you, Mr. Chairman. Thank you very much 
for having this hearing today on S. 1358, the Federal Employee 
Protection of Disclosures Act, which makes needed changes to 
the Whistleblower Protection Act. I want to add my welcome to 
the Hon. Peter Keisler to our hearing.
    Our legislation would enhance the Federal Government's 
efforts to eliminate waste, fraud and abuse by strengthening 
the rights and protections available to whistleblowers. This 
bill is essentially the same as S. 3070 which the Committee on 
Governmental Affairs favorably reported to the Senate on 
October 9, 2002. Whistleblowers play a crucial role in alerting 
Congress and the public to serious cases of government 
wrongdoing and mismanagement.
    Following the events of September 11, courageous Federal 
employees stepped forward to blow the whistle on significant 
lapses in our efforts to protect this country and its people 
from terrorism. FBI agent Colleen Rowley alerted Congress to 
serious institutional problems at the FBI which impacted the 
agency's ability to investigate terrorist activities and 
prevent terrorism. Border Patrol agents Mark Hall and Bob 
Lindemann alerted us to serious security lapses at our northern 
border.
    The importance of whistleblowing was highlighted when Time 
magazine named Ms. Rowley and two other whistleblowers as its 
Persons of the Year. These brave Americans captured the 
Nation's attention and earned our respect for risking their 
careers for the public good.
    Although nearly a year has passed since whistleblowers 
gained national attention, we should not forget the 
contributions they make to our everyday lives. Just last week, 
Senator Fitzgerald and I held a hearing on abuses in the mutual 
funds industry where witnesses testified that it was a 
whistleblower who first brought attention to this problem. 
Specifically, Stephen Cutler, Director of Enforcement at the 
Securities and Exchange Commission said, ``tips from 
whistleblowers are critical to our program.''
    Through passage of the Whistleblower Protection Act in 1989 
and the subsequent strengthening amendments in 1994, Congress 
has encouraged Federal employees to come forward with 
information of threats to public safety, government waste, 
fraud, and mismanagement. Congress has passed strong laws to 
encourage the disclosure of critical information, but we also 
need the courts to interpret the law consistent with 
Congressional intent. Without judicial decisions consistent 
with the intent and spirit of the Whistleblower Protection Act 
Federal employees will continue to fear reprisal for blowing 
the whistle. As a result, we fail to protect not only the 
whistleblower but we fail to protect taxpayers and national 
security as well.
    Our bill is intended to close loopholes which have made it 
impossible for whistleblowers to come forward without the 
threat of retaliation. Based on the repeated misinterpretation 
of Congressional intent and the track record of the Federal 
Circuit, Court of Appeals, it is clear why Federal employees 
would fear making disclosures evidencing government wrongdoing. 
Since the 1994 amendments to the WPA, the Federal Circuit, 
which has sole jurisdiction over appeals, has issued only 75 
decisions on the merits of the whistleblower cases, and in 74 
of those cases the whistleblowers lost.
    A free society should not fear the truth. Public servants 
should report government mismanagement, threats to national 
security, or specific dangers to public health. People will not 
speak out if they do not feel protected from retaliation. That 
is why the Whistleblower Protection Act must be strengthened.
    I look forward to hearing from our witnesses and working 
with you, Mr. Chairman, to protect the American public and our 
Federal whistleblowers. I also want to add to the list of those 
Governmental Affairs Committee colleagues who are co-sponsors 
to our bill the name of Senator Pryor. Thank you, Mr. Chairman.
    Senator Fitzgerald. Thank you very much, Senator Akaka. 
Senator Levin, do you wish to proceed?

               OPENING STATEMENT OF SENATOR LEVIN

    Senator Levin. Mr. Chairman, thank you, I do have an 
opening statement. First let me begin by thanking you for 
chairing this hearing on a very important bill. I know you are 
fitting this into an incredibly difficult schedule and we are 
very much in your debt, those of us who have spent a lot of 
time on this subject. I know the Chairman himself is very much 
interested in whistleblowing and protecting whistleblowers and 
doing a lot of other important things to make this government 
work better.
    I do not know if Senator Grassley was here a moment ago or 
not, but I also want to thank him, and obviously Senator Akaka 
for their efforts on behalf of whistleblowers. I hope that we 
can mark up this bill next year. But today's hearing is 
essential to that markup.
    The Office of Special Counsel who was before us today, at 
least the nominee for that office, is an independent agency. We 
have got to defend that independence. Whistleblowers often 
reveal embarrassing, sometimes damaging information about 
people whom they work for, or the government agencies where 
they are employed. There can be significant pressures on the 
Special Counsel to ignore retaliation that may have occurred or 
to pursue cases less vigorously than they ought to be pursued. 
But the OSC is our first line of defense, and it is important 
that we give the OSC those powers.
    It is also important that we strengthen the whistleblower 
in a number of other ways. That includes the power of the OSC 
to appeal decisions, and participate in those appeals. There is 
no reason why the OSC should not be allowed to appeal the 
decision when a decision is contrary to the needs of 
whistleblower protection.
    We have also got to address some of the holdings of the 
U.S. Court of Appeals for the Federal Circuit. Some of these 
decisions have been totally inconsistent with Congressional 
intent. In the case of Lachance vs. White,--and I know our 
witness from the Justice Department will address this case 
today--we have an example of where the Congress has adopted a 
reasonable standard of proof and the Court of Appeals has taken 
that standard and turned it into an impossible hurdle. In that 
case, the Lachance case, the court imposed an unattainable 
standard on Federal employee whistleblowers to prove their 
cases.
    The Federal court ruled in that case that in order for a 
whistleblower to demonstrate reasonable belief that his 
disclosure was evidence of gross mismanagement he has to 
demonstrate with irrefragable proof that the government had 
acted in violation of the law. Now that is an impossible 
standard. That is undeniable, incontestable, incontrovertible, 
incapable of being overthrown proof. That proof does not exist 
in any case unless there is a plea of guilty. Yet that is the 
kind of decision that we have gotten from the Federal Circuit.
    So our bill is intended to address the powers of the Office 
of Special Counsel. I had hoped to be here earlier and I could 
not be because of the Defense bill being on the floor and I had 
to manage that bill, to ask our nominee for that position; 
whether or not there would be support for the bill that Senator 
Akaka, Senator Grassley, I and others have introduced. But in 
the absence of being able to address those issues directly with 
our nominee we look forward to raising those questions with the 
Justice Department and our other witnesses today, and getting 
answers to those questions from the nominee in written form.
    Again, I just want to thank you, Mr. Chairman, for your 
commitment to so many good government causes.
    Senator Fitzgerald. Thank you, Senator Levin. I would now 
like to introduce our witness on our first panel. The Hon. 
Peter Keisler serves as Assistant Attorney General for the 
Civil Division in the U.S. Department of Justice. He has also 
served as Principal Deputy Associate Attorney General and 
Acting Associate Attorney General. Prior to his appointments at 
the Justice Department, Mr. Keisler was a partner at Sidley, 
Austin, Brown and Wood in their Washington, DC office. I would 
note that esteemed law firm is headquartered in Chicago. He 
also served in the Reagan Administration as Associate Counsel 
to the President and as a law clerk to U.S. Supreme Court 
Justice Anthony Kennedy, as well as Judge Robert H. Bork of the 
U.S. Court of Appeals for the District of Columbia Circuit.
    In the interest of time your full statement will be 
included in the record and we ask that you limit your summary 
statement to 5 minutes. Mr. Keisler, you may proceed with your 
opening statement.

  TESTIMONY OF PETER KEISLER,\1\ ASSISTANT ATTORNEY GENERAL, 
           CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE

    Mr. Keisler. Thank you very much, Mr. Chairman and Members 
of the Committee. I very much appreciate the opportunity to 
appear before you today and to include my full statement in the 
record. I will just briefly summarize our principal concerns 
with S. 1358.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Keisler appears in the Appendix 
on page 31.
---------------------------------------------------------------------------
    But let me first begin by emphasizing that the Department 
is strongly committed to the protection of whistleblowers who 
bring to light evidence of fraud, abuse, mismanagement, and 
violations of the law in the government. The current law 
though, we believe, adequately protects the interest of 
whistleblowers and we think the costs associated with this 
bill, both in terms of its impact on important national 
security interests and the inefficiencies it could create in 
the management of the Federal workforce outweigh the 
incremental increase in protections that the bill might afford.
    We are particularly concerned about the provisions of the 
bill that relate to security clearances and classified 
information. For example, the bill would permit the Merit 
Systems Protection Board and the Federal Circuit to review 
security clearance determinations. Review by those non-expert 
bodies would, we believe, have a substantial chilling effect 
upon the decisionmaking process of security professionals. If a 
security professional knows that his or her decision will be 
second-guessed by the MSPB and that any reverse decision may 
subject his agency to substantial damages, that possibility 
will inevitably be considered in the security clearance 
decision, even though the only appropriate and permissible 
standard that should be considered is whether the clearance is 
clearly consistent with national security.
    Beyond that objection, we do not believe the amendment in 
that respect is necessary. Currently, Executive Order 12968 
requires all agencies to establish an internal review board to 
consider appeals of security revocations.
    We have one at the Department of Justice which is fairly 
typical. Background investigations are reviewed by career 
adjudicators on the Department's security staff and any 
recommendation to deny or revoke a security clearance is 
reviewed personally by the director of that staff, also a 
career employee of the Department. If the director's decision 
is to deny or revoke a clearance, then a comprehensive written 
statement of reasons must be provided to the employee or the 
applicant, who may also request access to any documents relied 
upon, including the investigative file. The employee may then 
request reconsideration by the director and is given a 
statement of reasons and the result of that reconsideration as 
well.
    If the employee continues to object, he may then be given 
an opportunity to appeal to a high-level panel appointed by the 
Attorney General and comprised of three members, two of whom 
are from outside the security field. The members of the 
Department's panel are all high-ranking career employees. The 
employee may be represented by counsel, there is a transcript 
of the hearing, and the final decision is in writing and final.
    We believe that by providing the employee with a written 
explanation of the reasons for a clearance denial and with an 
appeal to a high-level panel that had no role in the initial 
decision we have provided a process that is fundamentally fair 
to the employee and that provides sufficient procedures to 
ensure that a security clearance decision is not based upon 
unlawful reprisal.
    The bill would also allow individuals to make unauthorized 
disclosures of classified information to members of Congress 
and their staff who possess security clearances. We oppose 
these provisions because we believe they would interfere with 
the Executive Branch's constitutional responsibility to control 
and protect information relating to national security. And more 
specifically, the determination which individuals have a need 
to know specific types of classified information.
    Executive Branch agencies frequently provide classified 
information to the Congressional Intelligence Committees in 
fulfilling our obligations to keep them fully informed about 
intelligence matters within their purview. We also provide 
classified information from time to time to other committees in 
response to requests from their chairmen in the context of 
Congressional oversight regarding Executive Branch operations. 
The decisions about the provision of such information are made 
within the Executive Branch based upon assessments about 
whether the particular Congressional entity has a need to know 
the classified information, which remains an important standard 
in avoiding unnecessary disclosures that would not be 
consistent with our national security interests.
    We believe the Executive Branch should retain the 
responsibility to determine the dissemination of classified 
information, both within the branch and to the Legislative 
Branch. This bill would encourage the disclosure of classified 
information outside of that carefully considered process.
    We also object to the provision which would prohibit the 
consideration of time, place, form, motive, context, or prior 
disclosure in considering whether an individual made a 
protected disclosure under the law. The context in which an 
alleged disclosure is made is essential to determining whether 
the statement made by an employee is the type of statement that 
falls within a common sense definition of disclosure.
    By prohibiting the consideration of context, the bill 
transforms any statement that potentially suggests a 
disagreement about law or policy into a protected disclosure. 
Thus, because employees make those types of statements on a 
regular basis, the bill would potentially allow almost any 
Federal employee to claim whistleblower status in the face of 
legitimate personnel actions. This protection, which would then 
require management to justify its action by the much higher 
clear and convincing standard, would create costly 
inefficiencies in the operation of the Federal workforce and 
also would detrimentally impact the morale of good workers.
    The bill would provide the Special Counsel independent 
litigating authority and authorize him to appeal decisions of 
the MSPB and whistleblower cases, and represent himself before 
the Federal Circuit. We object to this provision, as we 
generally do to any extension of independent litigating 
authority beyond the Department of Justice for two primary 
reasons. First, it could result in the undesirable situation of 
two different parts of the government litigating against each 
other and taking different positions in court. The government, 
we believe, should speak with one voice.
    Second, it undermines the centralized control the 
Department maintains over litigation involving the government 
in the Federal courts. Centralized control furthers a number of 
important policy goals, including the presentation of uniform 
positions on significant legal issues, the objective litigation 
of cases by attorneys unaffected by concerns of a single agency 
that may be inimicable to the interest of the government as a 
whole, and the facilitation of presidential supervision over 
Executive Branch policies implicated in government litigation.
    Finally, we object to the proposal to permit review of MSPB 
decisions by the regional Circuit Courts of Appeals rather than 
the currently exclusive review by the Federal Circuit. Review 
by the regional circuits would result in a fractured personnel 
system causing confusion among both the employing agencies and 
the employees about their respective rights and 
responsibilities. And it would inevitably require the Supreme 
Court to intervene more in Federal personnel matters to resolve 
inconsistencies among the circuits.
    I thank the Committee for the opportunity to testify and I 
am pleased to answer any questions you might have.
    Senator Fitzgerald. Thank you, Mr. Keisler. I want to ask 
you right off the bat what you think about what Senator Levin 
said in his opening statement. He noted, I think it was the 
Lachance vs. White case, that imposed the irrefragable proof 
standard. Is that not pretty much an impossible level of proof 
for the whistleblower?
    Mr. Keisler. Pretty much, Mr. Chairman. I am not here to 
defend that. My understanding is that discussion in Lachance 
was dicta. That the MSPB when it next considered the issue said 
essentially, the Federal Circuit cannot have meant what it 
said. And no case that I am aware of, either before the MSPB or 
the Federal Circuit since then has actually applied the 
irrefragable proof standard.
    I would certainly agree that it would not be appropriate. 
We think the standard should be what it normally is in a case 
like this, which is proof by a preponderance of the evidence.
    Senator Fitzgerald. Are there any aspects of the current 
whistleblower law that you think should be improved, or is it 
your contention that the current law adequately protects 
whistleblowers?
    Mr. Keisler. Our feeling is that the current law provides 
adequate protection. We are always open to considering 
proposals that this Committee or others in Congress might have 
about ways in which it could be improved, but we generally 
think the current law strikes a sufficient balance.
    Senator Fitzgerald. Is it your understanding that an 
employee who discloses information that is already known is not 
a protected whistleblower?
    Mr. Keisler. That is the holding of the Federal Circuit, I 
think in the Wissen case, that a disclosure is something that 
was not previously laid bare, something that is being revealed 
for the first time. So that one of the tests that has been 
applied to determine whether a disclosure provides protection 
under the statute is whether the individual making the 
disclosure is informing of something new or instead reporting 
about something that is already known. Only in the former case, 
I think, does it get that protection under existing law.
    Senator Fitzgerald. Could you describe for this Committee 
more precisely what you mean by the burden you fear will be 
imposed on management of the Federal workforce? What are some 
of the financial, managerial, and human costs involved in 
participating in these whistleblower applications and 
adjudications?
    Mr. Keisler. Of course, any time someone is accused of 
acting improperly, that imposes a personal cost on that person 
and a financial cost on either that person or the government in 
litigating it. That does not mean that there should not be an 
opportunity to bring these charges. There are very important 
interests that are implicated, as each Member of the Committee 
has said. But we think it is important that the law strike a 
balance between the needs of managers in the workplace to take 
appropriate personnel actions when adverse decisions need to be 
made, and the important need to protect legitimate 
whistleblowers who are bringing to light information about 
fraud, abuse, mismanagement, or violations of the law.
    Senator Fitzgerald. I listened with great interest to your 
concerns about imposing the machinery of whistleblower 
protection into the sensitive arena of security clearances. But 
I wonder if I could ask you, on the other side of the ledger, 
what meaningful recourse is there for Federal employees who are 
subject to retaliation by revocation of their security 
clearance?
    Mr. Keisler. Every department and agency under the 
executive order is required to have its own independent, 
internal review process. When I say independent, I mean 
independent of the initial decisionmaker who will first decide 
to revoke or deny a security clearance.
    We have one in the Department of Justice. The three members 
of that board are at the deputy assistant attorney general 
level. I can tell you, it is a robust process. It is not a 
rubber stamp. It frequently results in decisions being 
reversed. That panel is empowered to consider all evidence, to 
look at the entire totality of the case that the employee or 
applicant presents. In that respect, it functions much more 
broadly than any court or administrative agency would be able 
to do because their general practice would be to give deference 
to the administrative decision in the first instance. This 
board gives no deference to the initial decision to deny or 
revoke a security when it is asked to review it. It looks at it 
afresh, and as I said, frequently makes a decision to reverse 
the decision.
    The employee or applicant has all aspects of due process 
before that board: The right to be represented by counsel, the 
right to present testimony, a written record is created, and a 
statement of reasons is created. So that has been our effort to 
make sure that, while we have not supported outside review of 
clearance decisions, that there is a measure of due process and 
second look given to those decisions because we recognize they 
are important. They are important not only for the government 
but they are important for the employee or applicant, in many 
cases whose job may require a security clearance.
    Senator Fitzgerald. Senator Akaka.
    Senator Akaka. Thank you very much, Mr. Chairman.
    Mr. Keisler, the Department opposes the provision in S. 
1358 granting MSPB the right to review secret clearances 
relating to retaliation for a protected activity. I understand 
this opposition is in part to the current internal review 
process for security clearance matters. What is the track 
record for the internal security clearance review process in 
restoring clearances to whistleblowers?
    Mr. Keisler. I can only speak generally. I do not have 
statistics on that, and even my general knowledge is limited to 
what we have done in the Department of Justice. But I have been 
told by the security officials there that this is a process 
which quite frequently results in reversals of initial 
decisions to deny or revoke clearances. That it is a meaningful 
process and one in which the look is genuinely a fresh one.
    Senator Akaka. Thank you. The Department objects to the 
provision clarifying that employees may make disclosures of 
classified information to Congress because DOJ believes an 
employee would have the unilateral authority to decide who 
should receive classified information and when.
    However, the WPA already provides that employees can make 
classified disclosures to the Special Counsel and an agency's 
inspector general. Furthermore, the law states that nothing in 
the WPA shall be construed to authorize the taking of any 
personnel actions against any employee who discloses 
information to Congress.
    In light of these existing statutory provisions on the 
disclosure of classified information, can you elaborate on the 
Department's objection to this provision?
    Mr. Keisler. Certainly, Senator, and thank you for giving 
me that opportunity. First of all, I would like to be clear 
about what our position is and is not. We do believe that as a 
general matter, government employees have the right to go to 
Members of Congress and their staff with information about 
misconduct or legal violations without getting prior approval 
from the Executive Branch. The exceptions, we believe, to that 
general principle are in those instances in which that kind of 
action would undermine the President's constitutionally-based 
authority to carry out his particular responsibilities.
    Congress' oversight is constitutionally based. The 
President has some constitutionally-based powers and sometimes 
there is tension between the two. The category in which this 
most often arises, of course, is the President's 
constitutionally-based power that the Supreme Court recognized, 
to control access to national security information.
    Our belief is that when there is a tension between the 
President's constitutional powers and Congress' constitutional 
need and power to conduct oversight, that is something that 
should be worked out through the committees, through the 
oversight process, but not that each individual employee with 
access to classified information should be able to make the 
determination for himself or herself that a disclosure should 
be made.
    Senator Akaka. The Department of Justice has expressed 
extremely strong opposition to this legislation. The Department 
also opposed the 1989 Whistleblower Protection Act and the 1994 
amendments. What changes would you recommend in order to gain 
the Department's support?
    Mr. Keisler. I have not come here, Senator, with proposals 
to change the law. As I said, I think we do believe that the 
current law strikes a good balance, but that is always subject 
to further proposals and consultations. I do not want anything 
I just said to suggest that we would not be happy to work with 
the Committee to further develop ideas and consult.
    Senator Akaka. Thank you very much for your responses.
    Thank you, Mr. Chairman.
    Senator Fitzgerald. Senator Levin.
    Senator Levin. Thank you. In answer to Senator Akaka's 
question you indicated that the internal appeal process 
relative to the loss of security clearance has produced 
reversals.
    Mr. Keisler. That is what I am told, Senator.
    Senator Levin. But you did not know what percentage of 
cases or how often. Could you do that bit of research for us 
and give the Committee those numbers?
    Mr. Keisler. I will see what I can find out.
    Senator Levin. The question of whether or not Members of 
Congress ought to be able to receive classified information 
from whistleblowers you say should not be the unilateral 
decision of a whistleblower. Should Members of Congress be 
allowed to make a decision--if a whistleblower comes to us and 
we have clearance obviously, a whistleblower has clearance and 
they say, this information is classified and I cannot give it 
to you under the current law, but if you request it, that would 
be different I gather then in your eyes, would it?
    Mr. Keisler. I think that would be a protected disclosure 
by the employee.
    Senator Levin. So what the employees need to do then, and 
we ought to make it clear in the law, is that if the Member of 
Congress, after being informed that the employee has classified 
information but has not disclosed what it is, then says, yes, I 
would like to receive that information, there should be 
protection for the whistleblower?
    Mr. Keisler. Yes, and I think that is protected under the 
law as it is written now because any disclosure to anyone, as 
long as it is not a disclosure of the information that is 
required by law or executive order to be secret, is a protected 
disclosure. So if an employee went to you, Senator, or your 
staff and said, I know something very important. I cannot tell 
you the contents of it because it is classified, but you should 
pursue this; someone yesterday gave you misleading testimony or 
whatever, that would not----
    Senator Levin. No, not quite that. Not, you should pursue 
this. But if you ask me what that information is, than I can 
respond to your request. Is that protected?
    Mr. Keisler. I am sorry, I did not fully understand your 
question. My conception was they would come to you and say, 
there is something you need to pursue and you would come demand 
it from us. No, I do not think it is currently protected under 
the law.
    Senator Levin. My question is, should we not have the 
right, as cleared, elected officials to seek classified 
information from anybody who has received that information 
properly?
    Mr. Keisler. I think that would trench upon the President's 
authority to make the need-to-know determination. Because, as 
you know, the decision about whether information can be 
disclosed to any particular individual inside the Executive 
Branch or anywhere is a combination of, is the person cleared 
and is there a need to know. We regard the President's 
authority in this regard to encompass both categories of 
decision, so under our view of his constitutional role we would 
think that should proceed through other channels.
    Senator Levin. You want to give the President that 
exclusive right to decide whether or not a Member of Congress 
should be allowed to seek classified information from a member 
of the Executive Branch? That is really an extreme position, I 
will tell you, because we ask questions all the time on our 
committees of members of the Executive Branch which require 
them to give us classified information, and obviously in a 
setting which is cleared. We do that all the time.
    The position that you are taking is that the President 
ought to have a right to say, sorry, that person is in the 
Executive Branch. We are not going to respond to the question 
from the Member of Congress, or in my hypothetical, from the 
member of Congress who asked the whistleblower, what is that 
information. It is a very extreme position.
    Mr. Keisler. I think when you use the word exclusive, 
Senator, I think in some----
    Senator Levin. I think you used the word exclusive.
    Mr. Keisler. Then when I use the word exclusive, I may not 
have fully captured the reality of the way things would work. I 
would presume in that circumstance there would be a back and 
forth between this branch and the Executive Branch, and there 
would be a need for negotiation and accommodation. But our 
position is that when the Executive Branch is engaged in that 
kind of process it should be the President or his delegees who 
do the negotiating, who set the terms on that side of the 
divide and that lead to the accommodation, not that each 
employee is authorized to make the disclosure.
    Senator Levin. Upon request.
    Mr. Keisler. Upon request, yes.
    Senator Levin. So that when someone comes in front of us 
from the Department of Defense over at the Armed Services 
Committee and we ask that person for information which is 
classified, you are saying that person does not have the 
responsibility and does not have the obligation to respond to 
the question until they clear that with whoever these powers 
are in the Executive Branch that you want all information that 
is classified cleared with before it is shared with Congress. 
That seems to be what you are saying.
    Mr. Keisler. You are obviously so much more familiar with 
the way these interchanges work than I am, Senator, but my 
assumption would be that when someone comes before you they 
have a sense in advance of the parameters of what they are 
permitted to disclose.
    Senator Levin. No, frequently that is not the case. They do 
not always know the questions that we are going to ask in 
advance.
    Mr. Keisler. If a witness were in genuine doubt as to 
whether a piece of--whether his or her higher-ups, the ones 
with authority, would approve the disclosure of the information 
and that witness did not know whether that would be approved, I 
would take the position that the prudent thing would be for 
them to go back and find out whether that is appropriate.
    Senator Levin. That is a very extreme position. When 
Congress asks questions, in a proper setting that is cleared, 
from someone who has that information, whether it is classified 
or not, we have a right to that information. We do not expect 
to, nor should we be put in a position where that person says, 
gee, I do not know whether I want to answer that question 
because I did not expect you to ask that question, and I have 
to go back to my superiors to see whether or not I can answer 
the question. That is not acceptable, and I do not think any 
Executive Branch has taken that position to date that I know 
of, and I do not believe any court would sustain that.
    Congress has a right to information from the Executive 
Branch unless there is a privilege, an executive privilege, for 
instance, which is exercised. But the fact that it is 
classified, when we are cleared to receive classified 
information, is not a reason that can be sustained. So I think 
your position on this is really an extreme position. The red 
light is on. I only had one more question but I do not want 
to----
    Senator Fitzgerald. You can go ahead, continue if you wish.
    Senator Levin. On the irrefragable proof, and I was glad to 
hear your answer on that question, I take it then that the 
Justice Department would support that part of the bill which 
would eliminate that from anyone's mind as being the proper 
standard.
    The reason it is important is because when it comes to 
settling these cases, if the whistleblower has to face the 
prospect of an appeal if he pursues his claim, to a court which 
has adopted that standard, it is going to make settlement much 
more--it is not going to be as good a settlement, obviously, 
for the whistleblower if they think that is the standard which 
will be applied at the end of the line.
    My question though specifically is, will the Justice 
Department support at least that portion of the bill which puts 
into law that standard which you adopted, the preponderance of 
the evidence standard?
    Mr. Keisler. I am not certain that the portion of the bill 
that seeks to reverse the irrefragable proof standard actually 
installs a preponderance of the evidence standard. I think it 
may say something more like, the individual need only have 
substantial evidence, which would be a weaker standard than 
preponderance of the evidence. But in terms of our position 
about what it should be, we think it should be preponderance of 
the evidence. We do not think it should be irrefragable proof.
    Senator Levin. In any event, we can agree it should not be 
irrefragable.
    Mr. Keisler. It should not be irrefragable proof. I did not 
even know what the word irrefragable meant before I read that 
decision.
    Senator Levin. I looked it up and it is quite an 
extraordinary word.
    Thank you, Mr. Chairman.
    Senator Fitzgerald. Thank you, Senator Levin.
    Mr. Keisler, thank you very much for appearing before us. 
We appreciate you coming over to the Hill to testify. If there 
are no further questions we will proceed to panel two.
    I would like to introduce our panelists on the second 
panel. Elaine Kaplan currently is practicing law in the firm of 
Bernabei & Katz in Washington, DC. Ms. Kaplan was nominated by 
President Clinton in 1997 and confirmed by the Senate in April 
1998 to be Special Counsel of the Office of Special Counsel. 
During her tenure she was credited for implementing many new 
programs to improve the operations of the Office of Special 
Counsel and the interagency process regarding personnel 
practices. Prior to her role as Special Counsel Ms. Kaplan 
served as Deputy General Counsel of the National Treasury 
Employees Union where she represented the interests of union 
members in the areas of labor and administrative law as well as 
racial and sexual discrimination.
    Thomas Devine serves as legal director of the Government 
Accountability Project, a non-profit organization dedicated to 
promoting government and corporate accountability by advancing 
free speech and ethical conduct in the workplace and defending 
the rights of whistleblowers. Mr. Devine has published a number 
of articles regarding whistleblower protections and has worked 
for over 20 years to develop and promote policies and laws 
pertaining to whistleblowers.
    Stephen M. Kohn serves as Chairman at the National 
Whistleblower Center, a non-profit advocacy center dedicated to 
working with whistleblowers. Mr. Kohn has litigated 
whistleblower cases for a number of years, including the 
successful lawsuit against the Department of Justice, the FBI, 
and the Clinton Administration that compelled implementation of 
regulations to enforce whistleblower protections for FBI 
employees.
    William Bransford is General Counsel to the Senior 
Executives Association and a partner in the law firm of Shaw, 
Bransford, Veilleux & Roth where he has practiced since 1983. 
The Senior Executives Association was founded in 1980 as a non-
profit corporation and it represents more than 7,000 career 
Federal executives. In his practice, Mr. Bransford represents 
Federal executives, managers and employees in cases regarding 
personnel and employment practices before the U.S. District 
Courts, the Merit Systems Protection Board, the Equal 
Employment Opportunity Commission, the Office of Special 
Counsel, and with offices that adjudicate security clearances.
    Thank you all for being here. In the interest of time, your 
full statements will be included in the record, and we ask that 
you limit your summary statement to 5 minutes. We are going to 
strictly enforce the 5-minute limit. Thank you. Ms. Kaplan.

  TESTIMONY OF ELAINE KAPLAN,\1\ ATTORNEY, BERNABEI AND KATZ, 
                              PLLC

    Ms. Kaplan. Thank you, Mr. Chairman. Good afternoon. I 
appreciate being invited by the Committee to offer my 
perspectives on S. 1358. My testimony is based on my experience 
as the head of the Office of Special Counsel as well as an 
attorney in private practice who represents whistleblowers in 
both the private and public sector.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Kaplan with an attachment appears 
in the Appendix on page 63.
---------------------------------------------------------------------------
    In July 2001, as Special Counsel I testified in favor of S. 
995, which was an earlier effort to strengthen and improve the 
Whistleblower Protection Act. There have been two significant 
developments since the Committee considered S. 995 which I 
think are worth mentioning. First, after the terrorist attacks 
of September 11, our national focus shifted dramatically. We 
all have heightened concerns and a greater sensitivity to 
issues of national security.
    Second, since the Committee considered S. 995, the Nation's 
markets have been rocked by a series of corporate scandals and 
in the aftermath of these scandals Congress enacted the 
Sarbanes-Oxley Act which extends whistleblower protection to 
employees of publicly traded corporations.
    I mentioned the terrorist attacks of September 11 and the 
corporate scandals that led to the passage of Sarbanes-Oxley to 
make a point about DOJ's opposition to S. 1358. Both as Special 
Counsel and for many years before as an attorney practicing in 
the area of Federal sector employment it has been my experience 
that whenever amendments are proposed to strengthen the 
Whistleblower Protection Act, the Department of Justice opposes 
them. It usually uses the same objection, similar to the ones 
that we heard today, which are that strengthening the law will 
inhibit managers from taking legitimate actions against poor 
performers or bad employees. It also says that making changes 
to the act's enforcement scheme, giving the Special Counsel 
greater authority will undermine what it calls uniform 
application of the law and interfere with DOJ's control over 
litigation in the Federal courts.
    I think that this reflexive opposition to this bill is 
really bad public policy, especially in a post-September 11 
world. Today more than ever our emphasis should be not only on 
protecting whistleblowers but on encouraging them to come 
forward. That was certainly what Congress concluded when it 
extended whistleblower protection to corporate employees. It 
certainly is no less important that Federal employees who are 
sometimes on the front lines of the war against terror feel 
safe reporting security risks as it is that employees of 
Fortune 500 companies are protected when disclosing account 
scandals.
    Now DOJ is frequently fixated on the notion that enhancing 
protection for Federal employees and closing loopholes in the 
act will protect bad employees. As the head of OSC I frequently 
heard this trotted out and it is sort of an old canard, that 
the law protects bad employees, or that employees cynically 
invoke the act's protection in order to make themselves immune 
from legitimate personnel actions. This is like an urban legend 
in my opinion. The fact is that weak claims, most of the them 
are closed--all weak claims are closed in the administrative 
process. The majority of cases filed with the Office of Special 
Counsel because the law is clear and nothing in this law 
changes the fact that it is not illegal to take appropriate 
action against bad employees even if they are whistleblowers.
    Now let me give you a couple of examples of why this law is 
important and why existing law has these common sense lapses in 
it. I think it makes good sense to prevent agency officials 
from retaliating against an employee who is making a protected 
disclosure, even if they are doing it as part of their duties 
and through their chain of command. In fact I think it is 
counterintuitive to protect people only when they go outside 
their chain of command. One would think that it would be in 
management's interest to encourage people to stay inside the 
chain of command rather than going, for example, to the 
Washington Post or the New York Times.
    So let me give you an example of how this would work. Let 
us say there is a security screener at National Airport who 
works for the Transportation Security Administration and they 
notice that the x-ray machines are malfunctioning on a regular 
basis. The screener suspects that because of these malfunctions 
a number of passengers may be permitted to board airlines 
without being screened. It is part of his job to report these 
malfunctions to his supervisor.
    So he goes to his supervisor and he tells them about the 
malfunctioning machines and his supervisor says to him, do not 
write up a report. Just go back to work. It is a lot of extra 
paperwork. And the supervisor does not want it to get out that 
the screening machines at National Airport are not working. He 
says, do not worry about it. I will take care of it. We will 
get the problem fixed.
    One week later the employee comes back again, the problem 
has not been fixed. This time he tells his supervisor, if 
nothing is done, he is going to report the supervisor, his 
inaction, up the chain of command or maybe to the IG, and the 
supervisor fires the employee.
    Now under current law this employee has no recourse. 
Because he has made his disclosure as part of his regular job 
duties he is not protected by the anti-retaliation provisions 
of the Whistleblower Protection Act. In fact a security 
screener at TSA, this employee does not even have normal 
adverse action protections that other employees have.
    The same scenario could play out in any number of contexts: 
An inspector at the Nuclear Regulatory Commission who suffers 
retaliation when he recommends that a power plant's license be 
revoked for violating safety regulations; an auditor who is 
denied a promotion because he found improprieties in a Federal 
grant program; or an investigator in an IG's office who is 
geographically reassigned because he has reported misconduct by 
a high-level agency official.
    I see that my time is up and I will refer you back to my 
written statement. But I do think that it is really important 
for the Committee to consider this balance between broadening 
the rights for whistleblowers and management prerogatives to 
understand that is really in management's interest to have 
broad protection for whistleblowers because it is in 
management's interest to understand what is going on in the 
work site and to created an open environment. Thank you.
    Senator Fitzgerald. Thank you, Ms. Kaplan. Mr. Devine.

   TESTIMONY OF THOMAS DEVINE,\1\ LEGAL DIRECTOR, GOVERNMENT 
                     ACCOUNTABILITY PROJECT

    Mr. Devine. Thank you for requesting this testimony. GAP 
and a bipartisan, trans-ideological coalition of over 100 
citizens and good government organizations strongly support 
this Committee's efforts to put the protection back in the 
Whistleblower Protection Act. S. 1358 is a modest good 
government bill that restores legitimacy for a public policy 
mandate that Congress has passed unanimously three times. It 
does not expand the intended scope of any prior Congressional 
actions. Most accurately, this bill could be called the 
Whistleblower Protection Restoration Act.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Devine with attachments appears 
in the Appendix on page 72.
---------------------------------------------------------------------------
    I serve as the Legal Director of the Government 
Accountability Project and for 25 years we have been helping 
whistleblowers. I would like to begin by seconding Ms. Kaplan's 
closing remark, that this law will help managers as much as it 
will help anyone else. Whistleblower protection within an 
organization, if we close the loopholes that are barring it 
currently, serves management's right to know. The way the 
current law has been skewed there is only a potential to serve 
Congress or the public's right to know, and managers are liable 
to be the last ones to learn about problems because of the way 
the statute has been twisted.
    In 25 years we could not avoid learning some lessons about 
which reforms work in practice and which are illusory. S. 1358 
is the real thing. If enacted, the Whistleblower Protection Act 
will again be a genuine metal shield that gives a fighting 
chance for those who rely on it to defend themselves. If we 
keep the status quo, it is going to be a cardboard shield 
behind which anyone relying on it is sure to die 
professionally. It also will continue to be a magnet for 
cynicism.
    This bill does basically two things. It restores the 
boundaries that Congress has already set, and second, it gives 
structural reform so that Congress will not have to pass this 
law a fifth time, or more. Enough is enough.
    I think we should briefly review why Congress keeps 
reaffirming a unanimous mandate for whistleblower rights. It is 
because they are the human factor which is the Achilles heel of 
bureaucratic corruption. They warn us of preventable disasters 
before we are limited to damage control, or picking up the 
pieces. They are society's modern Paul Reveres. Since the 
September 11 tragedy, increasingly they have been playing an 
invaluable role.
    As the news media increasingly has recognized, 
whistleblowers on national security breakdowns have been the 
only reliable, trustworthy lifeline for Congress and the public 
to learn about terrorist threats which were caused by 
bureaucratic negligence and sustained by abuses of secrecy. 
Their message has been consistent: Too often the bureaucracy 
has been satisfied to maintain the appearance of security 
rather than implementing well-known solutions to long-confirmed 
and festering problems. We cannot have those voices silenced if 
we are going to prevent another tragedy in our Nation.
    My testimony gives numerous examples of whistleblowers 
whose warnings have been vindicated in retrospect but who are 
still isolated from their areas of expertise, relegated to 
updating the telephone books at their agencies, or serving as 
travel agents for people on foreign assignments, despite the 
fact that they have gone to the mat and risked their careers 
disclosing still unsolved problems that sustain our 
vulnerability to terrorism. Our Nation does not have the luxury 
to waste these talents.
    Let me give a brief rebuttal of the Justice Department's 
specific arguments. On security clearances, they stated that 
since the Merit Board is not an expert body this would chill 
the professionals. The Merit Board would not be acting on 
anything outside of their expertise, which is determining 
whether there have been merit system violations like 
retaliation. They would not be touching the technical issues 
that they do not have expertise for.
    The gentleman from the Justice Department said, we have 
these review boards and they work great at Justice. Justice is 
not any institutional guarantee of due process for the rest of 
the Executive Branch. Let me share with you some of the results 
from the other agencies. There is everywhere an institutional 
conflict of interest. The body that is acting as judge and jury 
normally would be the adverse party in the case. That is not a 
healthy premise. There are no timeframes for these decisions. 
Whistleblowers are routinely forced to wait over 3 years before 
they are told what they have been accused of. The gentleman did 
not talk about timeframes at Justice. One of their DOJ 
whistleblowers was waiting 2 years to get any explanation for 
the loss of his clearance.
    They are not allowed to confront their accusers when they 
have a hearing. They are not allowed to present witnesses 
themselves, or present their own evidence. While there may be 
exceptions, as a rule, security clearance hearings at internal 
review boards are frequently analogized to Kafka's, The Trial. 
Only unlike that book, they are not a 19th Century nightmare 
novel. They are the 21st Century reality.
    Justice's other arguments are similarly specious. On it 
being unconstitutional to give classified information to 
Congress for whistleblowing disclosures, that issue was decided 
in 1998 with the Intelligence Whistleblower Protection Act. 
This is just housecleaning to extend it to the merit system. 
Further, Federal employees every day have to make that decision 
to almost 3 million people who have clearances but are not in 
Congress. Why should Congress be the only group that does not 
have the right to make a judgment call about whether a cleared 
individual has a need to know? You folks deserve it more than 
the other outlets.
    On loopholes, the gentleman said that this bill would make 
any potential disagreement potential protected whistleblowing. 
This bill does not change the substance at all for what 
qualifies for whistleblowing except in the irrefragable proof 
area. It just means you cannot be disqualified because of 
cosmetics like formality or context. Thank you, Mr. Chairman.
    Senator Fitzgerald. Thank you, Mr. Devine. Mr. Kohn.

TESTIMONY OF STEPHEN M. KOHN,\1\ CHAIRMAN, BOARD OF DIRECTORS, 
                 NATIONAL WHISTLEBLOWER CENTER

    Mr. Kohn. Thank you, Chairman Fitzgerald and Senator Levin, 
for holding this hearing.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Kohn with attachments appears in 
the Appendix on page 132.
---------------------------------------------------------------------------
    I come with a different perspective than other witnesses. I 
have litigated whistleblower cases for almost 20 years and I 
use all of the laws, not just the Whistleblower Protection Act. 
I have come to avoid the WPA at all costs. I have won cases in 
reinstatements for Federal employees by avoiding the WPA. I 
will give you an example why.
    I put together Table No. 1 which is in the testimony and on 
the overheads. These are laws, whistleblower laws that are 
apples to apples to the WPA. They are administrative laws. They 
are investigated by administrative agencies. They are litigated 
before an administrative judge. Their final decisions are 
rendered in Washington, DC by a centralized board, yet look at 
the differences. In every other law there is all-circuit 
review. Only the WPA does not happen. That single difference 
has fundamentally undermined whistleblower protection, because 
all-circuit review is in practice the peer review procedure 
utilized by judges on a daily basis for their own oversight and 
accountability.
    When a judge under the Pipeline Act or the Superfund Act or 
the Energy Reorganization Act writes a decision in the Fourth 
Circuit, they know when that issue comes up in the Second 
Circuit or the Third Circuit or the Tenth Circuit, other judges 
will look at it and perhaps criticize them. That is the 
fundamental way that the whole appellate system works. By 
segregating the WPA out and only having one circuit review, you 
have taken away the key oversight mechanism for the Federal 
appellate judiciary, and that alone has rendered the WPA 
totally inefficient and ineffective.
    If you look at the other issues that are also raised by 
this legislation you will also see the WPA standing out. 
Critical is the administrative agency right to file an appeal. 
I know now they want OSC to be able to come in and file an 
appeal. Under all these laws, the administrative agency with 
the authority over these laws goes into the Courts of Appeals 
regularly and argues for the whistleblower if they have 
determined the whistleblower had merit. That is an outcome 
determinative factor.
    When a government lawyer comes into a Court of Appeals and 
says, this whistleblower had merit, the judges listen a lot 
harder than as, in the testimony of the government, a pro se. 
They brag that the Federal Circuit has nice procedures for pro 
se appellants. Anyone who has clerked at a Court of Appeals 
knows, they may have nice procedures for pro se, but are they 
going to listen and what is the outcome issue?
    Also on the critical issue of report to supervisors, the 
Federal Circuit stands alone--every other court, and there were 
many decisions on this, and this was fought out in the circuits 
over a period of years. The Supreme Court denied cert. They did 
need to take cert because it all worked out. In every other law 
they protect those reports to supervisors.
    So let us now go to Table No. 5. That one issue alone, do 
you support the whistleblower who has the courtesy and the 
respect and the common sense to follow the chain of command is 
outcome determinative. I went through the last 20 reported 
decisions of the U.S. Court of Appeals under the laws set forth 
in Table 1 and I was actually shocked to find that in all 20 
cases where the employee won it was an internal report. If 
those same whistleblowers who beat the higher standards, who 
showed the pretext, who showed the retaliation, who served the 
public interest had their cases heard in the Federal Circuit 
the outcome would have been zero.
    That is what the common sense practitioner sees every day. 
I spend hours figuring out how to keep my clients out of the 
Federal Circuit.
    I know my time is up. One last chart, Table No. 6, which 
just shows--I went through the last ten decisions issued by the 
Department of Labor in support of a whistleblower this year, 60 
percent of those valid whistleblowers would have automatically 
lost their cases in the Federal Circuit. The critical piece of 
your legislation is the all-circuit review. I support all the 
other aspects of it, but without all-circuit review, Federal 
whistleblowers will never obtain legitimate protection. Thank 
you very much.
    Senator Fitzgerald. Thank you Mr. Kohn. Mr. Bransford.

 TESTIMONY OF WILLIAM BRANSFORD,\1\ PARTNER, SHAW, BRANSFORD, 
   VEILLEUX & ROTH, P.C., ON BEHALF OF THE SENIOR EXECUTIVES 
                          ASSOCIATION

    Mr. Bransford. Thank you, Mr. Chairman. On behalf of the 
Senior Executives Association, we appreciate the invitation to 
testify this afternoon on our views related to S. 1358. SEA is 
grateful to the Members of the Committee for their interest in 
improving the law protecting whistleblowers as well as 
protecting the process by which it is determined whether a 
whistleblower has been subjected to prohibited reprisal.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Bransford appears in the Appendix 
on page 160.
---------------------------------------------------------------------------
    In general, SEA is supportive of this legislation, but in 
several instances we think the bill has gone too far. The first 
sections of the bill greatly expand the definition of what 
constitutes a protected disclosure and in our opinion these 
provisions seem designed to overturn precedent from the Federal 
Circuit. While SEA is generally supportive of these changes and 
believes the precedent from the Federal Circuit should be 
clarified, we do have concerns related to the current 
Whistleblower Protection Act and what we think will be an over-
reaction to the changes in S. 1358 if the following concerns 
are not also addressed.
    SEA's primary concerns are that these changes to S. 1358 do 
not protect the right of a manager to continue to manage an 
employee who has made a bad faith disclosure. As a result, 
managers potentially face a claim of whistleblower reprisal for 
making virtually any adverse personnel decision that touches 
upon the whistleblower no matter how justified the action may 
be. SEA believes that a provision in the act providing for some 
sort of penalty for filing bad faith whistleblower claims would 
serve to discourage those non-legitimate claims.
    In the alternative, the bill should be changed to deny 
protection for disclosures made by an employee solely to avoid 
accountability for the employee's misconduct or poor 
performance. In other words, we are addressing that provision 
in the law that talks about making motive irrelevant to the 
case.
    Additionally, SEA is concerned that S. 1358 could be 
interpreted to expand the scope of protected disclosures to 
cover the policy decisions of a manager, particularly if a 
policy disagreement by the employee is voiced only to the 
manager but is couched in terms of legality. We believe it 
should not be the intent of S. 1358 to protect the disclosures 
of employees whose disagreement with the administration's 
policy objectives being carried about by their supervisor is 
made only to the supervisor and then is followed by a 
recalcitrant attitude being demonstrated by the employee. We 
are suggesting changes that allow the MSPB to deny protection 
for disclosures that relate only to agency policy decisions 
which a reasonable employee should follow.
    SEA supports the new fourteenth prohibited personnel 
practice which prohibits referring a matter for investigation 
because of any activity protected under 5 U.S.C. Sec. 2302. 
However, we are concerned that managers have adequate 
protection if they refer a matter for investigation for other 
legitimate reasons. To correct this we propose the language in 
Section 1(h) of the bill which allows a manager to avoid 
liability for reprisal by proving the personnel action at issue 
would have occurred anyway also be made applicable to the new 
prohibitions of retaliatory investigations.
    Section 1(e) of the bill establishes a new Section 7702a in 
Title 5 setting forth a new process if a security clearance 
decision appears motivated by whistleblower reprisal. We think 
the bill may go too far by requiring this new procedure for 
agency review of security clearances for all violations of 
Section 2302. We propose that the new process be limited to 
whistleblower reprisals in violation of 5 U.S.C. 
Sec. 2302(b)(8), specifically only whistleblower reprisals 
cases.
    SEA supports the provisions in Section 1(g) of S. 1358 
concerning attorneys fees. The current law allowing such fees 
has been interpreted to require the fees for managers who 
successfully defend charges be paid by the Office of Special 
Counsel. Such a change in the law would allow the Office of 
Special Counsel to make prosecutorial decisions without concern 
for the impact of the decision on the office's budget.
    SEA opposes granting an appeal directly to other Circuit 
Courts of Appeals other than the Federal Circuit. SEA has 
consistently supported a Federal employee's right to appeal to 
the MSPB during recent debates concerning homeland security and 
DOD. And where we assert our position, one of the criticisms of 
the MSPB that we are given in response is that the MSPB appeal 
process is too complex. The level of complexity will only 
increase with the availability of multiple Circuit Courts of 
Appeals being put into the new law.
    Also it appears that the only reason to allow appeals to 
multiple circuits is a dissatisfaction with the Federal 
Circuit. If this is the case, Congress can always legislatively 
overrule the Federal Circuit, as it did in 1994 and as it 
appears ready to do in S. 1358. SEA contends this is preferable 
to the confusing complexity that will be caused by the varying 
decisions that will be issued by different Courts of Appeals.
    On behalf of SEA, we thank you for your willingness to 
introduce these amendments to the Whistleblower Protection Act. 
Thank you.
    Senator Fitzgerald. Thank you, Mr. Bransford.
    Mr. Devine and Mr. Kohn, you are certainly to be commended 
for your dedicated and forceful advocacy on behalf of 
whistleblowers, and you have worked hard at calling attention 
to this important aspect of the law. But I am wondering whether 
you have ever had the opportunity to defend Federal managers or 
supervisors, and whether in that way or some other way you have 
ever had the opportunity to see whistleblower adjudications 
through the eyes of a Federal manager accused of retaliation.
    Mr. Kohn. I have only represented whistleblowers, but mark 
my word, in representing whistleblowers you come to learn 
supervisor's motives and what they go through extremely well, 
through the depositions, through the trials, through the 
settlement process. I have also represented many Federal 
managers, including Senior Executive Service employees, people 
with significant and large-scale managerial responsibility who 
have themselves become whistleblowers and have talked to me 
about issues related to management of employees.
    So I understand that there is a management side, but what I 
want to state is that for an employee to actually win a 
whistleblower case, it is very difficult. Most lose. When you 
look at the statistics between the other circuits and the 
Federal Circuit and how the outcome is, it is clear that valid 
whistleblowers are continuously losing in and under the WPA. 
One valid whistleblower losing a case is something that is 
known to many managers and many other employees.
    Senator Fitzgerald. Mr. Devine.
    Mr. Devine. I represent Federal managers regularly because 
they blow the whistle as well, and one of the lessons we have 
learned is that the higher up in the chain of command that a 
whistleblower occupies, the more intensive the dissent is 
liable to be because their disclosure is more threatening. We 
are very sensitive to the pressures that they face. One of our 
organization's first priorities is always to try to work with 
the manager who is on the other side of a reprisal case to see 
if we can change the dynamic from accusations and conflict to 
problem solving about the disclosure. To see if they can work 
together to make a difference, and then if we can mediate a 
settlement. Because if there is any lesson we have learned, 
there are not any winners in a win-lose scenario. But unless we 
have a credible, legitimate system of rights there will not be 
any disclosures either.
    Senator Fitzgerald. Senator Akaka.
    Senator Akaka. Thank you, Mr. Chairman. My first question 
is to Mr. Bransford. Some say that clarifying the scope of 
protection for whistleblowers would fuel the perception that 
Federal managers cannot fire poor performers. However, I am 
curious of the training managers receive for handling poor 
performing employees. Can you comment on that as well as what 
additional training managers would need should S. 1358 be 
enacted as currently drafted?
    Mr. Bransford. Senator, that is a problem that has been 
repeatedly pointed to within the Federal Government, that 
managers do not receive this training. This training is 
available. It is offered. However, not every manager receives 
it. There used to be a 40-hour or 80-hour training course for 
new managers that OPM required. But there are training 
opportunities available and I agree that managers should 
receive training on such things as how to handle poor 
performers, how to avoid retaliation claims, what the 
Whistleblower Protection Act means and what a manager's 
obligations are under those laws. I know Senator Voinovich has 
proposed legislation specifically, I think it was in the last 
Congress, requiring such training, but that has not been 
enacted. But I do agree that would help.
    Senator Akaka. Thank you.
    Ms. Kaplan, as the former Special Counsel for 5 years you 
are in a unique position to comment on how the provisions in S. 
1358 would impact the Office of Special Counsel. Although many 
agencies have independent litigating authority, would you 
please elaborate on the need for this authority as a result of 
any conflicts of interest with the Justice Department?
    Ms. Kaplan. That is one of my favorite topics, or it used 
to be. I felt very strongly when I was Special Counsel that it 
was important for the office to have independent litigating 
authority because the office was created as an independent 
entity to promote the merit system and to protect 
whistleblowers.
    The Justice Department is the government's lawyer, but 
frequently, in fact always, the Justice Department appears in 
court defending the agencies accused of retaliation. So they 
are really the management lawyer. My view always was that it 
would have helped the development of the law for the Federal 
Circuit to have been able to hear from the Office of Special 
Counsel when the cases were in the Court of Appeals where most 
of the law is developed. A lot of what is being complained 
about today's Federal Circuit, narrowing of the law by the 
Federal Circuit, in my opinion, as Mr. Kohn pointed out, if you 
have a government entity in there that is arguing for a broader 
interpretation of the law, the court is likely to pay greater 
attention than it does when, for example, you have a pro se 
petitioner, which you frequently do in the Federal Circuit.
    So I think it is quite important, and I know that 
frequently the Justice Department takes the position that it is 
an odd situation because you might have one government agency 
in the court, and then the Justice Department in the court 
taking different positions. But actually that is very common in 
these Federal sector cases. You have a Federal Labor Relations 
Authority and a Merit Systems Protection Board that appears in 
court against the Justice Department. So I think it is a really 
important authority for the office to have and I would 
certainly urge the Committee to carefully consider it.
    Senator Akaka. Thank you. My next question is for both Mr. 
Devine and Mr. Kohn. Mr. Bransford suggests that there should 
be some form of penalty for bad faith whistleblowers due to the 
impact on Federal managers. What is your opinion on this 
proposal? Mr. Devine.
    Mr. Devine. Senator, there is a penalty now for filing a 
frivolous lawsuit. You spend tens of thousands of dollars at a 
minimum, you have the cloud of this conflict hanging over your 
head for years, and then you end up with a formal legal ruling 
endorsing what you are complaining about. That is quite a 
penalty. And probably the most significant answer to Mr. 
Bransford's suggestion is that his idea is premature, because 
right now almost all employees, or the overwhelming majority of 
employees who file their cases and if they are not resolved by 
settlement, end up suffering the penalty I described.
    If we had a problem where there was a surge of 
whistleblower rights cases that was flooding the board, or 
there was a rash of questionable decisions backing 
whistleblowers, then we would have a real problem. But we do 
not right now. The bottom line for this statute is more than 
enough deterrence for any bad faith lawsuits.
    Since Congress significantly strengthened this law in 1994 
the track record for whistleblowers in decisions on the merits 
at the Federal Circuit is 1 in 84. Since the 1999 Lachance 
decision, the track record at the full board for whistleblower 
decisions is 2 in 27. Even the board's written testimony about 
administrative judge decisions shows at that early level there 
is only 10 percent who prevail in decisions on the merits. That 
is between two and three times less than all the other 
whistleblower statutes that Mr. Kohn was describing to you.
    We just do not have a problem with people filing too many 
suits because they think that they have got too easy a chance 
to win. Our problem is they do not have a fighting chance at 
all.
    Senator Akaka. Mr. Kohn.
    Mr. Kohn. Thank you, Senator. This issue again--and I like 
the word urban legend--is an urban legend. There is another 
body of law just to look at, which are the Department of Labor 
whistleblower decisions and cases that are very similar to the 
MSPB structurally. This issue has come up 100 times 
theoretically. When you go down and read those decisions what 
you find is there are very few cases--and I have read every one 
of them. I have written five books on it. I have sat and read 
every one of the cases. Just one or two or three that would 
come to the frivolous cases.
    So when it has gone up to the Secretary of Labor, be it a 
Republican or a Democrat, they have consistently said, you know 
what, there is no need to have any sanction and we will not 
even allow it. So even though they would have had the 
discretion to impose it, they decided by case law it was 
against the public policy and there is really no need. So it is 
just a theory.
    I do want to correct my testimony, Senator Fitzgerald, one 
way. Although I do not directly represent managers against 
employees, since I do represent managers, often they have 
problems with employees, and I do give counsel to them on how 
to deal with employees, but not in court. So I just wanted to 
clarify that answer. Thank you.
    Senator Akaka. Thank you. My time is up.
    Senator Fitzgerald. Senator Levin.
    Senator Levin. Thank you, Mr. Chairman. Thank you all for 
your testimony. It is invaluable.
    On the question of independent litigating authority, Ms. 
Kaplan, I think you testified relative to the importance of 
that existing. I am wondering whether or not our other 
witnesses think that the Office of Special Counsel ought to 
have that authority to appeal to the circuit?
    Mr. Devine. Senator Levin, we believe this is a no-brainer. 
There simply is no rational basis to gag the institutional 
defender of the merit system from the final decisive stages of 
litigation that control the evolution of the merit system. It 
is an inherent structural imbalance in the input to the courts. 
We do not think this is a tough one.
    Senator Levin. Mr. Kohn.
    Mr. Kohn. I think it is not only not tough, it is critical. 
I have been on both sides. I have been in court where the 
government has been on my side at the Appeals Court. I see it 
much easier. I have been against the government and I see the 
skepticism. It is much harder.
    But if you look at some of the decisions like Chevron, the 
Supreme Court decisions where they discuss the type of 
deference a Court of Appeals by law must give a responsible 
administrative agency, then it becomes absolutely critical 
because when you go before the Court of Appeals who is speaking 
for the government and for the Whistleblower Protection Act? If 
it is the Department of Justice, they are going to give Chevron 
deference to interpretation to DOJ. They will naturally do 
that, even if they do not write it in their decision. If the 
Office of Special Counsel were permitted to go before the Court 
of Appeals they would then give Chevron deference to their 
interpretation. That is outcome determinative in many cases. 
That is the way the courts are used to dealing with reviews of 
administrative orders. Thank you.
    Mr. Bransford. I have recently been party to cases where 
the MSPB and the Department of Justice were on opposite sides 
of the same issue in the Federal Circuit and it works just 
fine. I see no reason why the Special Counsel cannot also be 
given that type of authority. I personally have benefited by 
the fact that the Special Counsel did not have--or at least my 
clients benefited by the fact that the Special Counsel did not 
have that authority because OPM made decisions not go forward 
to the Federal Circuit. I agree with Ms. Kaplan completely that 
if the Federal Circuit could have the benefit of the Special 
Counsel's input in decisions some of these cases would be 
different. I am in support of independent litigating authority.
    Senator Levin. Thank you. On this irrefragable proof 
standard, it was good to hear from the Department of Justice 
that they do not support it. I am wondering if each of you 
would comment on whether or not then it is relevant? Because 
MSPB says it does not follow that so-called dicta. I am not 
sure it is dicta, by the way, but it says it is not going to 
follow it. Does that mean that it does not have an impact, that 
opinion of the Court of Appeals in Lachance? Does it mean there 
is no impact to it because MSPB says it is not going to be 
followed by them? Let us start with you, Ms. Kaplan.
    Ms. Kaplan. No, I do not think it means that at all. 
Obviously, when you have a decision from the Court of Appeals 
and there is only one Court of Appeals that hears these cases, 
even if you could call it dicta--and I used to like to call it 
dicta as well because I did not want to follow it--but you 
still have to pay attention to even that which is called dicta 
by a Court of Appeals. I think if the Justice Department 
agrees, and I think this is a new position for them, that it is 
inappropriate, then I think the legislation should clarify that 
so we will not have the problem in the future.
    Senator Levin. Mr. Devine.
    Mr. Devine. I think the primary significance of the MSPB's 
recent views on this is that it should make the amendment non-
controversial. As far as the Department of Justice dismissing 
it as dicta, they have not quite been able to keep their 
position straight. In their September letter to the Committee 
this year they said that the irrefragable proof standard had 
been helpful for them in winning cases. Now they are saying it 
is not relevant. I think they were right the first time around. 
Administrative judges have been influenced by this precedent. 
It has had a significant impact on the quality of settlements. 
And the decision is being quoted in other forums. It has been 
contagious at the State and local level. This is an 
indefensible doctrine which has to be eliminated.
    We are very appreciative of the board's support for 
recognizing the obvious about this standard. Unfortunately, the 
Merit Board cannot overturn a Federal Circuit decision. Only 
Congress can do that.
    Senator Levin. Thank you. Mr. Kohn.
    Mr. Kohn. Senator Levin, I would want to second the 
questions and points made by Senator Akaka on this very issue. 
I personally have sat in settlement negotiations in Federal 
cases in which that case comes out and they say, you had better 
take what we are putting out. You will lose. Don't you see this 
decision here? Not just by the opposition but by good-faith 
administrative judges of the MSPB saying, don't you want to do 
what is best for your client? Look what is going to happen. As 
long as that case is out there, it is and will be used to the 
detriment of valid whistleblowers.
    Senator Levin. Thank you. Mr. Bransford.
    Mr. Bransford. I never thought the decision meant that the 
degree of proof was overwhelming. In fact, I support the idea 
that that language is dicta. I viewed Lachance vs. White as 
being primarily a case about whether policy disagreements rise 
to the level of whistleblowing.
    Having said that, SEA would support legislation that 
clarifies that, and I think either the substantial evidence or 
preponderance of the evidence standard as suggested by Justice 
would be appropriate. Something to make it clear that the 
presumption could be overcome with some level of reasonable 
evidence.
    Senator Levin. My time is up. I just have one more question 
if there is another round, Mr. Chairman.
    Senator Fitzgerald. I have been told that we have a vote on 
now and there are 12 minutes and 30 seconds left. What I would 
like to do now is to thank this panel. I could give Senator 
Levin--Senator Grassley has now arrived and he wishes to make a 
statement.
    Senator Levin. I would just ask my question for the record.
    Senator Fitzgerald. Sure, go ahead and ask your question 
for the record.
    Senator Levin. Just for the record, I will just ask a 
question about the Willis vs. Department of Agriculture case 
which, as I understand it, decided if a person blows the 
whistle on wrongdoing but did it within the agency chain of 
command then the whistleblowing does not constitute a protected 
disclosure under the law. We have addressed that a little bit 
here this afternoon.
    But my question is what your reaction is to that decision 
and the language in our bill that is set forth, whether or not 
that is the best way to address the problem raised by that 
decision, if you find or if you believe that there is a problem 
raised by the decision. If you could just give us that--not 
here, because we are out of time, but just for the record in a 
written response, I would appreciate it.
    Senator Fitzgerald. Thank you very much, Senator Levin. And 
thank you to all members of the panel. We appreciate your being 
here. Your testimony was great. Thank you very much.
    At this point I would like to call on our distinguished 
colleague, Senator Grassley. Senator Grassley has been busy 
with the Medicare hearings and he wanted to make sure he had a 
chance to come over here and make a statement. We appreciate 
his willingness to be here. I think we can allow Senator 
Grassley to proceed and then we can all make our vote.
    Senator Grassley is, of course, from Iowa. He is the 
chairman of the Senate Committee on Finance. Senator Grassley 
was elected in 1980 and he has been a leader for many years in 
protecting the rights of whistleblowers. Senator Grassley was a 
co-author of the Whistleblower Protection Act of 1989 as well 
as the author of the whistleblower amendments to the False 
Claims Act in 1986. Senator Grassley has worked tirelessly 
through the legislative process to promote government 
accountability by ensuring that Federal employees have the 
opportunity to make whistleblower disclosers without 
retaliation.
    Senator Grassley, the Committee welcomes your statement at 
this time, and we thank you for being here.

TESTIMONY OF HON. CHARLES GRASSLEY,\1\ A U.S. SENATOR FROM THE 
                         STATE OF IOWA

    Senator Grassley. Thank you very much. Obviously, as you 
mentioned, those very important bills we have been involved 
with in the past that also included Senator Levin and Senator 
Akaka on those, and I am glad to be joining you on this very 
important piece of legislation at all.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Grassley appears in the 
Appendix on page 167.
---------------------------------------------------------------------------
    The two bills that you have referred to, already law, 
largely passed to overturn a series of hostile decisions by 
administrative agencies in the Federal Circuit Court of Appeals 
monopoly on the statute's judicial review. I think we have come 
to the conclusion that enough is enough. The Whistleblower 
Protection Act has become a Trojan horse that may well be 
creating more reprisal victims than it protects. The impact for 
taxpayers could be to increase the number of silent observers 
who passively conceal fraud, waste and abuse. That is why the 
legislation that we are discussing today is so very vital to 
the American taxpayer.
    Our bill has five cornerstones: Providing protection for 
national security whistleblowers; closing loopholes in the 
scope of the whistleblower protection; restoring a realistic 
test for when reprisal protection is warranted; restoring the 
normal structure for judicial review; and codifying the anti-
gag statute passed as an appropriation rider for the last 14 
years.
    While all the provisions in this bill are critical to 
proper functioning of whistleblower rights, the provisions that 
protect national security whistleblowers is particularly so. 
The provisions prohibit a manager from suspending, revoking, or 
taking any other retaliatory action with respect to an 
employee's security clearance in retaliation for 
whistleblowing.
    Since September 11, government agencies seemed to have 
placed a greater emphasis upon secrecy and restricted 
information for security reasons. There might be some reasons 
why that is understandable, but with these restrictions come a 
greater danger for stopping the legitimate disclosure of 
wrongdoing and mismanagement, especially in public safety and 
security.
    Although the entire bill is important, I am having to 
confine my comments today to national security. In their views' 
letter dated November 10, 2003, the Department argued that 
these whistleblower protections constitute ``an 
unconstitutional interference with the presidential 
constitutional responsibilities respecting national security 
and foreign affairs.'' We have an Iowa expression that fits 
that and that would be hogwash.
    During the 105th Congress, the Select Committee on 
Intelligence thoroughly addressed the issue in our hearing 
entitled Disclosure of Classified Information to Congress. The 
Senate heard testimony from Dr. Louis Fisher, a Congressional 
Research Service senior specialist and also from a law 
professor, Peter Raven-Hansen of George Washington. These two 
highly respected scholars disagreed with the Department of 
Justice's opinion when it was offered then. Professor Raven-
Hansen explained that ``the President and Congress have both 
historically and as a matter of constitutional text, shared 
authority over classified information from the very 
beginning.''
    The Department argued then as it does now, that the 
President's power to regulate classified information is implied 
in his command authority as Commander-in-Chief. While this may 
be correct, the Justice Department fails to recognize that the 
Congress has equal, and some might argue, greater authority 
with regard to classified information. Nine times the 
Constitution explicitly gives the Congress responsibility for 
national security and foreign affairs. Additionally, according 
to Professor Raven-Hansen the Congress' power over this subject 
is implicit in Congress' residual authority to make all laws 
necessary and proper to carry out not only their vast national 
security powers but also the President's.
    The Department of Justice relies heavily on the case of 
Department of Navy vs. Egan. Their reliance on this case is 
misguided. According to Professor Raven-Hansen, the Egan case 
``stands simply for the proposition that the President has 
inherent authority to regulate classified information and does 
not need a statute to do so. It does not mean that he could 
violate the statute if Congress passed one regulating such 
matters.''
    Consequently, Congress has the authority to prohibit the 
retaliatory taking of a security clearance. I do not want 
anyone to think that Congress is trying to force something down 
the administration's throat. Last year my staff and the staffs 
of Senator Levin, Akaka, and Gramm sat down with the Department 
of Justice and White House to work out this provision. We even 
agreed to make a number of suggested changes. But 
unfortunately, at the end of the day we are not going to agree.
    Nonetheless, this provision is critical to the proper 
oversight of the Federal Government. In the 14 years since 
Congress unanimously passed the Whistleblower Protection Act it 
has been the taxpayers protection act as well. My office has 
been privileged to work with public servants who exposed 
indefensible waste and mismanagement at the Pentagon as well as 
indefensible abuses of power at the Department of Justice. 
Unfortunately, these courageous whistleblowers proceed at their 
own risk when defending the public.
    It has been confirmed repeatedly that whistleblowers must 
prove their commitment to stamina and persistence in order to 
make a difference against ingrained fraud, waste and abuse. 
There should be no question about Congress' or this Senator's 
commitment, as long as whistleblowers are defending the public, 
we must defend credible free speech rights for genuine 
whistleblowers. Congress cannot watch passively as a gaping 
hole expands in the shield protecting public servants. The 
taxpayers are on the other side of the shield with the 
whistleblower.
    Thank you very much.
    Senator Fitzgerald. Senator Grassley, thank you for that 
very powerful statement. Thank you for making it over here. I 
know you are very busy. I would like to thank my colleagues for 
being here.
    We will keep the record open until Tuesday, November 18 at 
5 p.m. This meeting is now adjourned. Thank you.
    [Whereupon, at 5:13, p.m., the Committee was adjourned.]


                            A P P E N D I X

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