    [Senate Hearing 111-299]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 111-299

          S. 372--THE WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2009

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

                                    HEARING

                                   before the

                      OVERSIGHT OF GOVERNMENT MANAGEMENT,
                         THE FEDERAL WORKFORCE, AND THE
                       DISTRICT OF COLUMBIA SUBCOMMITTEE

                                     of the

                                  COMMITTEE ON
                             HOMELAND SECURITY AND
                              GOVERNMENTAL AFFAIRS
                              UNITED STATES SENATE

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 JUNE 11, 2009

                                   __________

           Available via http://www.gpoaccess.gov/congress/index.html

           Printed for the use of the Committee on Homeland Security
                            and Governmental Affairs

                                   ----------
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    51-786 PDF                       WASHINGTON : 2010

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    Washington, DC 20402-0001

            COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                   JOSEPH I. LIEBERMAN, Connecticut, Chairman
    CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
    DANIEL K. AKAKA, Hawaii              TOM COBURN, Oklahoma
    THOMAS R. CARPER, Delaware           JOHN McCAIN, Arizona
    MARK L. PRYOR, Arkansas              GEORGE V. VOINOVICH, Ohio
    MARY L. LANDRIEU, Louisiana          JOHN ENSIGN, Nevada
    CLAIRE McCASKILL, Missouri           LINDSEY GRAHAM, South Carolina
    JON TESTER, Montana
    ROLAND W. BURRIS, Illinois
    MICHAEL F. BENNET, Colorado

                      Michael L. Alexander, Staff Director
         Brandon L. Milhorn, Minority Staff Director and Chief Counsel
                      Trina Driessnack Tyrer, Chief Clerk

      OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL WORKFORCE, AND THE
                       DISTRICT OF COLUMBIA SUBCOMMITTEE

                       DANIEL K. AKAKA, Hawaii, Chairman
    CARL LEVIN, Michigan                 GEORGE V. VOINOVICH, Ohio
    MARY L. LANDRIEU, Louisiana          LINDSEY GRAHAM, South Carolina
    ROLAND W. BURRIS, Illinois
    MICHAEL F. BENNET, Colorado

            Lisa M. Powell, Chief Counsel and Acting Staff Director
                 Jessica K. Nagasako, Professional Staff Member
                 Jennifer A. Hemingway, Minority Staff Director
                       Benjamin B. Rhodeside, Chief Clerk

                                C O N T E N T S

                                     ------
    Opening statements:
                                                                       Page
        Senator Akaka................................................     1
        Senator Burris...............................................    10

                                   WITNESSES
                            Thursday, June 11, 2009

    Rajesh De, Deputy Assistant Attorney General, Office of Legal
      Policy, U.S. Department of Justice.............................     3
    Hon. Claire McCaskill, a U.S. Senator from the State of Missouri.     8
    William L. Bransford, General Counsel, Senior Executives
      Association....................................................    15
    Danielle Brian, Executive Director, Project on Government
      Oversight......................................................    17
    Thomas Devine, Legal Director, Government Accountability Project.    19
    Robert G. Vaughn, Professor of Law, Washington College of Law,
      American University............................................    21

                         Alphabetical List of Witnesses

    Bransford, William L.:
        Testimony....................................................    15
        Prepared statement...........................................    44
    Brian, Danielle:
        Testimony....................................................    17
        Prepared statement...........................................    48
    De, Rajesh:
        Testimony....................................................     3
        Prepared statement...........................................    31
    Devine, Thomas:
        Testimony....................................................    19
        Prepared statement with attachments..........................    57
    McCaskill, Hon. Claire:
        Testimony....................................................     8
    Vaughn, Robert G.:
        Testimony....................................................    21
        Prepared statement...........................................   141

                                    APPENDIX

    Background.......................................................   163
    Copy of S. 372...................................................   171

                         Additional Prepared Statements

    Craig R. Sawyer, a disabled former U.S. Marine and U.S. Navy SEAL   199
    Colleen M. Kelley, National President, National Treasury
      Employees Union................................................   203
    John M. Fitzgerald, J.D., Policy Director, Society for
      Conservation Biology...........................................   205
    John W. Curtis, Ph.D., Director of Research and Public Policy,
      American Association of University Professors..................   209
    Joe Carson, PE, Knoxville, Tennessee with an attached letter.....   210
    Larry Fisher, National Accountant Whistleblower Coalition (NAWBC)
      with attachments...............................................   216

    Questions and Responses to questions:
        Mr. Bransford................................................   236
        Mr. Vaughn...................................................   237

          S. 372--THE WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2009

                                  ----------

                            THURSDAY, JUNE 11, 2009

                                     U.S. Senate,
                  Subcommittee on Oversight of Government
                         Management, the Federal Workforce,
                                and the District of Columbia,
                          of the Committee on Homeland Security
                                            and Governmental Affairs,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 2:49 p.m., in
    room SD-342, Dirksen Senate Office Building, Hon. Daniel K.
    Akaka, Chairman of the Subcommittee, presiding.
        Present: Senators Akaka and Burris.
        Also Present: Senator McCaskill.

                   OPENING STATEMENT OF SENATOR AKAKA

        Senator Akaka. I call this hearing of the Subcommittee on
    Oversight of Government Management, the Federal Workforce, and
    the District of Columbia to order.
        I want to welcome our witnesses and thank you so much for
    being here. Today's hearing will examine S. 372, the
    Whistleblower Protection Enhancement Act of 2009, which I and
    other Members introduced earlier this year. First, I would like
    to thank Senator Collins, the lead Republican cosponsor of S.
    372, and Members of the Homeland Security and Governmental
    Affairs Committee who are cosponsors, including my good friend
    Senator Voinovich, a champion of Federal employees, and
    Chairman Lieberman for their support. I want to mention that
    Senators Collins and Voinovich are not able to attend today's
    hearing due to last-minute scheduling conflicts, but I know
    they very much wanted to be here. I would also like to
    recognize Senators Grassley and Levin, who have been long-time
    supporters of strengthening whistleblower protections.
        The Whistleblower Protection Act is an important
    cornerstone of our Nation's good government laws. Federal
    employee whistleblowers play a crucial role in alerting
    Congress and the public to government wrongdoing and
    mismanagement, protecting our civil rights and civil liberties,
    helping to keep us safe, and rooting out waste, fraud, and
    abuse. I should also add that many of them have some good ideas
    that can improve government operations.
        Congress passed the Whistleblower Protection Act of 1989
    (WPA), and amendments to improve the WPA in 1994, to strengthen
    protections for Federal employee whistleblowers. However, a
    series of rulings by the Merit Systems Protection Board and the
    Federal Circuit Court of Appeals have created a number of
    loopholes in the law's protections. The law has become so weak
    that many employees, with good reason, fear they will not be
    protected from retaliation if they come forward to report
    wrongdoing.
        In 2000, I first introduced a bill to strengthen the WPA
    with Senator Levin. Over the years, the consensus that action
    is needed has grown broader, and the commitment of those
    involved has grown deeper. During each Congress, we have moved
    closer to enacting stronger whistleblower protections.
        Last year, our bill passed the Senate by unanimous consent.
    The House passed a similar bill, H.R. 985. Unfortunately, we
    were not able to work out the differences between the bills
    before the 110th Congress adjourned.
        It is very encouraging to be working with an Administration
    this year that is engaged in trying to work through the details
    of the legislation. President Obama has stated that his
    ``Administration is committed to creating an unprecedented
    level of openness in Government.''
        I know this Administration is deeply committed to
    transparency and accountability, and I believe that by working
    together we will enact stronger whistleblower protections,
    which is so important to those larger goals.
        There is broad agreement on a number of provisions that are
    in both S. 372 and the House companion bill, H.R. 1507. These
    include the need to: Clarify that ``any'' whistleblower
    disclosure truly means any disclosure; provide a process to
    review retaliatory security clearance revocations and
    suspensions; provide whistleblower protections to employees of
    the Transportation Security Administration (TSA); protect
    disclosures of scientific censorship; suspend the Federal
    circuit court's exclusive jurisdiction; and make a number of
    other important changes. However, there remain a few unresolved
    issues, and this hearing will focus largely on grappling with
    those particular issues.
        The first is how to best protect national security
    whistleblowers. For too long, national security whistleblowers
    have not had secure avenues to disclose government waste,
    fraud, abuse, and mismanagement. Some undoubtedly have stayed
    quiet, while some have leaked classified information to the
    media. We must ensure that there are secure channels to bring
    problems in the Federal Government to Congress' attention.
    Congress, with the appropriate security clearance requirements
    and procedures for safeguarding information, must be able to
    fulfill its constitutional oversight responsibilities. I hope
    today we will have a productive discussion on ways to address
    this important issue.
        The other unresolved issue is whether a safety valve is
    needed to protect whistleblowers if the administrative process
    is not working. The House companion bill would allow
    whistleblowers to file their cases in district court if the
    Merit Systems Protection Board (MSPB) has not acted within 180
    days. Many whistleblower advocates believe that this is a
    needed check to ensure that our efforts to strengthen
    whistleblower protections are not gradually undone, as they
    have been in the past. On the other hand, management groups and
    the past Administration have expressed concerns that fear of
    having to defend their actions to a jury might dissuade Federal
    managers from disciplining problem employees. Additionally, the
    past Administration was concerned that this would allow forum
    shopping; employees dissatisfied with the direction of their
    MSPB proceedings could move into district court after 180 days.
        I hope to address these two issues in some depth today and
    explore the effects different approaches would have on the
    protections for Federal employee whistleblowers, on Federal
    agencies, on congressional oversight, and on national security.
        Whistleblowers make government more efficient and effective
    by disclosing waste, fraud, abuse, and illegal activity. As a
    long-time proponent of improving government performance through
    sound management practices and accountability, I am confident
    we will succeed in enacting legislation this year that will
    enhance the system of whistleblower protections.
        I look forward to hearing from our witnesses today. I want
    to welcome our first panel to the Subcommittee today. Rajesh
    De, Deputy Assistant Attorney General in the Office of Legal
    Policy at the Department of Justice, is the sole witness on
    this panel.
        It is the custom of this Subcommittee to swear in all
    witnesses, and I ask you to please stand and raise your right
    hand. Do you swear that the testimony you are about to give
    this Subcommittee is the truth, the whole truth, and nothing
    but the truth, so help you, God?
        Mr. De. I do.
        Senator Akaka. Thank you very much. The record will note
    that the witness responded in the affirmative.
        Before we start, I want you to know that your full written
    statement will be part of the record.

     TESTIMONY OF RAJESH DE,\1\ DEPUTY ASSISTANT ATTORNEY GENERAL,
           OFFICE OF LEGAL POLICY, U.S. DEPARTMENT OF JUSTICE

        Mr. De. Good afternoon, Chairman Akaka. Thank you, and
    thank you to Ranking Member Voinovich and the other Members of
    the Subcommittee for the opportunity to appear here today to
    discuss the Whistleblower Protection Enhancement Act. This
    Administration strongly supports protecting the rights of
    whistleblowers. We recognize that the best source of
    information about waste, fraud, and abuse in government is
    often a government employee committed to public integrity and
    willing to speak out. Empowering whistleblowers is a keystone
    of the President's firm commitment to ensuring accountability
    in government.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. De appears in the Appendix on
    page 31.
    ---------------------------------------------------------------------------
        A government employee who speaks out about waste, fraud, or
    abuse performs a public service. Such acts of courage and
    patriotism, which can sometimes save lives and often save
    taxpayer dollars, should be encouraged rather than stifled.
    Yet, too often whistleblowers are afraid to call attention to
    wrongdoing in their workplace. We need to empower all Federal
    employees as stewards of accountability. Put simply,
    accountability cannot be imposed solely from the top down.
        The bottom line is we must make sure that all Federal
    employees at all levels are able to do what it takes to
    eliminate waste, fraud, and abuse. At the same time, we must
    preserve the President's constitutional responsibility with
    regard to national security information and ensure that agency
    managers have effective tools to discipline employees who
    themselves may engage in waste, fraud, or abuse.
        We recognize that the Executive Branch and the Congress
    have long held differing views regarding the extent of the
    President's constitutional authority over national security
    information. Putting aside these constitutional differences to
    the extent possible, our focus today is on achieving common
    ground and a workable solution toward our shared goal of
    increasing the protections available for Federal
    whistleblowers, including those who work in the national
    security realm. Creating a system that sets the right
    incentives for Federal employees and managers is not easy, as
    evidenced by multiple efforts to reform the system in each of
    the past three decades. This Administration believes that the
    time to reform the system has come again.
        I would like to discuss some key components of
    whistleblower reform as they relate to the legislation
    currently pending before the Senate--both with respect to civil
    service issues and national security issues.
        Turning first to the civil service issues, this bill would
    make a number of important changes to the ways in which
    whistleblower claims are adjudicated. For example, the bill
    would for the first time allow whistleblowers to obtain
    compensatory damages. That is a matter both of simple fairness
    and of practicality. A whistleblower who suffers retaliation
    should be made whole, plain and simple, and we agree with this
    measure.
        The bill would also make several important changes to the
    definition of ``protected disclosure.'' Under current law, a
    whistleblower is not protected if she informs her boss of
    wrongdoing, only to find out later that her boss was the one
    responsible for that wrongdoing. Thus, under current law, the
    employee would be protected for going to the Washington Post,
    but not to her own supervisor. Changing the law will encourage
    employees to tell their supervisors about problems in the first
    instance, which is usually the easiest way to resolve them.
        This Administration also supports modification of what is
    known as the ``normal-duty disclosure rule.'' Under that rule,
    an employee is not protected when he discloses wrongdoing as
    part of his normal job duties, unless that disclosure was made
    outside of the normal channels. This Administration believes,
    however, that normal-duty disclosures should be protected,
    particularly when public health and safety are at stake.
        Beyond the civil service arena, the Administration also
    believes that whistleblowers in the national security realm
    must have a safe and effective method of disclosing wrongdoing
    without fear of retaliation. We are pleased to see that this
    bill provides full whistleblower protection to TSA screeners,
    who literally stand at the front lines of our Nation's homeland
    security system. They deserve the same whistleblower
    protections afforded to all other employees of the Department
    of Homeland Security (DHS).
        As this Subcommittee knows, the intelligence community is
    generally excluded from the Whistleblower Protection Act. Yet
    it is essential that we root out waste, fraud, and abuse in the
    intelligence community just as elsewhere, and that intelligence
    community employees have safe channels to report such
    wrongdoing.
        With this goal in mind, we propose the creation of an
    Intelligence Community Whistleblower Protection Board (Board)
    within the Executive Branch. This Board would be comprised of
    senior presidentially appointed officials from key agencies
    within and outside of the intelligence community, including
    inspectors general, to provide a safe and effective means for
    intelligence community employees to obtain redress if they
    suffer retaliation for disclosing waste, fraud, or abuse. The
    Administration is currently in the process of developing a
    proposal for how this Board would operate in a manner that
    protects both intelligence community whistleblowers and the
    highly sensitive programs in which they work. We look forward
    to working with the Subcommittee to craft a scheme that
    satisfies our shared goals.
        We also believe that this Board could provide a better
    vehicle to review allegedly retaliatory security clearance
    revocations than the measures set forth in the pending
    legislation. We are aware that Congress has heard testimony in
    the past from individuals who have claimed that their security
    clearances have been revoked due to whistleblowing activities.
    This Administration has zero tolerance for such actions. We
    believe that an employee who alleges that her clearance was
    revoked for retaliatory purposes, for example, should be able
    to appeal that revocation outside of her own agency.
        Our proposed Board could recommend full relief to the
    aggrieved employee, including restoration of the clearance, and
    could ensure that Congress would be notified if that
    recommendation is not followed by the agency head. This
    mechanism would ensure that no agency will remove a security
    clearance as a way to retaliate against an employee who speaks
    truths that the agency does not want to hear.
        Finally, we believe that the proposed Board could provide
    an additional avenue for employees in the intelligence
    community to inform Congress of governmental wrongdoing. The
    Intelligence Community Whistleblower Protection Act of 1998
    (ICWPA) currently provides a vehicle for the Intelligence
    Community (IC) employees to report matters of ``urgent
    concern'' to Congress. The ICWPA, however, affords the
    individual employee no avenue for review of a potential
    disclosure outside her specific agency. This Administration
    believes that no Federal agency should be able to hide its own
    wrongdoing. For this reason, we believe an IC employee should
    be able to appeal to the Board if the agency head declines to
    transmit information to Congress or declines to provide
    instructions to the employee on how to do so.
        Individual employees should also be entitled to alert
    appropriate Members of Congress to the fact that they have made
    such an appeal so that Congress is aware that a concern has
    been raised to our Board.
        This legislation is merely one step in this
    Administration's plan to ensure accountability in government.
    We very much appreciate the efforts this Subcommittee has made
    over many years to devise whistleblower protections that work.
    We look forward to working with you to help revise and improve
    this legislation to achieve our shared goals.
        Thank you, and I would be happy to take your questions.
        Senator Akaka. Thank you very much, Mr. De, for your strong
    statement. The whistleblower community has expressed a strong
    desire for mechanisms to provide a check on the MSPB and the
    Federal Circuit should they again begin to undermine
    congressional intent for stronger whistleblower protections.
    Suspending the Federal Circuit's exclusive review of
    whistleblower cases might be one mechanism for doing that.
    Additionally, the House bill would allow whistleblowers to file
    their cases in district court after the MSPB's decision or if
    the MSPB has not decided the case within 180 days.
        Mr. De, is it appropriate to provide alternative court
    review to ensure that new whistleblower protections are not
    gradually chipped away under the existing review process, and
    if so, how should it be structured?
        Mr. De. Thank you, Mr. Chairman. We agree in the first
    instance that there need to be multiple checks and balances or
    safety valves, as you have put it, to ensure that the MSPB or
    any individual agency is not the last word in terms of having
    recourse for Federal whistleblowers.
        Now, with respect to Federal court review, we think one way
    to accomplish that, as the Senate bill does, is to allow for
    multi-circuit review of MSPB decisions. Although we think there
    have been benefits to allowing centralized review in the
    Federal circuit, namely, a development of expertise and
    consistency in the law, we certainly recognize that there are a
    number of concerns particularly among those who are advocates
    for whistleblower rights and within the Administration that
    this has not been sufficient. Accordingly, we think multi-
    circuit review could allow for more expansive development of
    the law and serve as one of the safety valves that you have
    suggested.
        Thinking about this issue in a broader sense, we think that
    safety valves should be addressed in the context of the Federal
    Government more generally, whether it is the courts, the
    Congress or the Executive Branch. So, on the one hand, while
    all circuit review could be one way to accomplish this through
    the courts, we also think there are important ways both within
    the Executive Branch and within the Legislative Branch--
    incorporating Congress into this--that we could achieve this as
    well.
        For example, some of the proposed changes to the definition
    of ``protected disclosure'' in both bills we think would
    actually allow for additional outlets for safety valves for
    whistleblowers. For example, by allowing whistleblowers to tell
    their supervisors about alleged wrongdoing or by allowing them
    to be protected for disclosures they make in the ordinary
    course, particularly for public health and safety, this will
    provide new avenues for whistleblowers to make sure that waste,
    fraud, and abuse is exposed.
        In the Board structure that we have proposed and are
    working through now, we think there is a vital role for
    Congress, particularly with respect to making sure that
    Congress is aware whenever an alleged concern is raised to the
    Board. So we would hope, working with your Subcommittee, to
    build in multiple mechanisms to serve as another safety valve
    to bring in the Legislative Branch as well. So when there is a
    potential disclosure that an IC employee would like to make and
    raises it with the Board, we think it is very important that
    employee be able to notify Congress that they have raised such
    a concern with the Board.
        So speaking at the macro level, we think there are multiple
    ways to achieve this safety valve concept across the Federal
    Government. One way would be to do so to allow for multi-
    circuit review in the courts.
        Senator Akaka. Thank you, Mr. De. I understand that the
    Administration has not yet determined its position on
    whistleblower access to U.S. district courts and jury trials
    outside of the national security context. Assume for the moment
    that a jury trial provision will be included in the final bill.
    Could you tell us what concerns the Administration would have
    with crafting this provision, and do you have any suggestions
    for how those concerns might be reduced or resolved?
        Mr. De. Thank you, Mr. Chairman. Let me make a few
    preliminary remarks on the jury trial issue, and then I will
    address the specific question.
        We certainly recognize that the question of jury trials is
    an important one for advocates of whistleblower reform and for
    the Administration. Whereas the House bill, as you mentioned,
    provides for jury trials, at least for non-national security
    whistleblowers, the Senate bill allows for direct review, all-
    circuit review from the MSPB. And as you mentioned, we have
    yet, as an Administration, to come to a definitive view on
    where we stand on this issue, but I would like to note that we
    think there are valid policy concerns on both sides, and if I
    may make a few specific points in that regard.
        As you noted, in particular with respect to national
    security whistleblowers, we think district court review and
    jury trials is particularly inappropriate in that context given
    the sensitive nature of the information at issue and the
    potential for wide-ranging disclosure in district court. So
    putting that aside as a preliminary matter, the second point I
    would like to make is we fully recognize that jury trials are
    an essential part of our judicial system and a reflection of
    our democratic values, and are seen by many as an important
    remedial outlet for the airing of whistleblower allegations and
    for claims of reprisal.
        The key issue from our perspective is the striking of an
    appropriate balance between the extent to which the prospect of
    a jury trial serves as an effective tool for encouraging
    whistleblowers to come forward with allegations of waste,
    fraud, and abuse versus the extent to which it serves as a
    disincentive to agency managers who may be increasingly
    concerned about taking legitimate personnel actions against
    poorly performing employees, some of whom themselves may
    actually be engaged in waste, fraud, and abuse. So that is the
    balancing that we are thinking through now.
        Getting to your specific question about if a jury trial
    provision is included in a bill ultimately by Congress, there
    are a couple specific suggestions we would have, two specific
    concerns about juries in particular in the whistleblower
    context.
        As you know, the way a whistleblower case generally
    proceeds is that once the claimant makes a prima facie case,
    the defendant must establish by clear and convincing evidence
    that the personnel action was taken for a legitimate purpose.
    We have concerns that juries may not be the most well-equipped
    venue to deal with the clear-and-convincing-evidence standard.
    As a general matter, juries either deal with the preponderance
    standard in the civil context or the beyond-a-reasonable-doubt
    standard in the criminal context.
        The second point I would like to make is putting
    whistleblower claims in front of a jury raises complex,
    although certainly not insurmountable, questions about what
    issues would be most appropriate for the jury versus the judge.
    In other words, what questions are questions of law versus
    questions of fact?
        Now, this is an issue that comes up in many areas of law,
    so it is not unique here, but one prime example might be what
    would constitute a gross mismanagement of funds. Now, I think
    we would probably all agree that figuring out what is a gross
    mismanagement, once you unpack it, has both questions of law
    and questions of facts built in.
        When we contemplate the idea of expanding the right to jury
    trial with the idea of all-circuits review, I think we need to
    take special care to ensure that we have a good sense of what
    would be appropriate questions for the jury versus the court to
    ensure that we do not have inconsistent development across
    multiple circuits.
        So with these thoughts in mind, the suggestions we would
    have are three-fold:
        One, if a right to a jury trial is included, we would
    suggest that it be limited to the non-national security
    context.
        Two, we would also suggest that Congress consider adopting
    a preponderance-of-the-evidence standard at least for jury
    trials and a burden-shifting framework similar to the Title VII
    context, rather than incorporating the clear-and-convincing
    standard that is used before the MSPB.
        And, third, we would suggest that Congress consider
    adopting damages caps analogous to the Title VII context to
    ensure that incentives are properly aligned and to alleviate
    concerns about runaway juries.
        So, to the extent a jury provision is included, those are
    some of our specific suggestions.
        Senator Akaka. Thank you, Mr. De. Let me now call on
    Senator McCaskill for her questions. Senator McCaskill.

      TESTIMONY OF HON. CLAIRE MCCASKILL, A U.S. SENATOR FROM THE
                           STATE OF MISSOURI

        Senator McCaskill. Thank you, Mr. Chairman, and I
    especially am appreciative today because I think technically I
    am not on this Subcommittee, but because this is an area in
    which I am very interested, the Subcommittee was kind enough to
    allow me to come and question.
        Let me cut to the chase. My concern is about jury trials,
    and I must tell you I am perplexed and confused that everyone
    would not want a whistleblower to be able to get a jury trial--
    every whistleblower on the face of the planet. The exceptions
    and the differences we have carved out to me make no sense.
        For example, right now, if you are a contractor in the
    Department of Defense (DOD) and there is a whistleblower in
    your company, that whistleblower is entitled to a jury trial.
    Now, how weird is it that they could be sitting side by side
    with a Federal employee doing the exact same work, seeing the
    exact same problem, and one would be entitled to a jury trial
    because they worked for a private contractor and the other one
    would not because they worked for the Federal Government?
        Can you give me any rational basis on which to distinguish
    between these two people?
        Mr. De. First, the Administration appreciates your support
    in particular for the provisions in the Defense Reauthorization
    Act last year and in the stimulus bill this year for extending
    jury trial rights to contractors, both in the defense community
    and for recipients of stimulus funds.
        I think the short answer is it is too soon to tell what the
    ramifications have been from those provisions. So, in other
    words, to the extent that there are concerns about the chilling
    effect of jury trials on legitimate agency managers, putting
    aside those that we think are doing bad things, we feel like we
    have not yet had an opportunity to determine from these limited
    extensions that have been put in place so far whether the
    balance that I discussed earlier is something that should be of
    concern.
        So I am not going to defend a distinction between Federal
    employees and contractors. We are trying to puzzle through the
    impact of the provisions that have been recently enacted and
    whether there is a valid concern that we have heard articulated
    and can understand in theory but is playing out under the
    provisions that you have helped enact recently.
        Senator McCaskill. Well, we know that 46 percent of the
    fraud that has been uncovered, according to the certified fraud
    examiners (CFEs) report, they sampled 1,000 cases in 2008; 46
    percent of the fraud we found came from employees. That is
    half. The majority of all Federal fraud recoveries coming from
    whistleblower discoveries.
        I am trying to understand what is it about a whistleblower
    being able to go to trial that keeps management in an agency
    from getting rid of a bad employee. I do not understand the
    causal connection there.
        Mr. De. I think there are a couple of factors that we have
    been trying to unpack and put forth for your consideration. One
    is a perception--and we are trying to uncover what is behind
    that--as to whether there is a fear of a greater litigation
    burden that agency managers will feel like they will get
    dragged into, both in terms of time and in terms of personal
    reputation.
        Now, that may or may not be a legitimate concern that we
    need to address, but that is something that has been expressed.
    So we are trying to assess the validity as to what is behind
    that.
        I think the second point is that, as a general matter, I
    think we all want to ensure that waste, fraud, and abuse is
    exposed, just as a first principle. How do we get there? And
    part of the way of getting there is ensuring that agency
    managers are not all bad. They can actually take effective
    action against subordinates who they believe are engaging in
    this abuse.
        So that is the waste, fraud, and abuse we do not
    necessarily hear of because it is taken care of in a simple
    personnel action. But I say that because we want to make sure
    we do not discourage managers from being able to take--out of
    fear of being dragged into a district court action, fear of
    taking legitimate personnel actions.
        Senator McCaskill. So what you are saying is a manager has
    a bad employee, and they are worried that if they try to take
    action against this bad employee, this bad employee is all of a
    sudden going to claim whistleblower status and try to get into
    court because they are being disciplined in the workplace, they
    are going to claim that they have whistleblower status. Is that
    what they are alluding to?
        Mr. De. I think there is partly a concern, given that in
    the whistleblower context the standard--the evidentiary
    standard is relatively low at the prima facie stage, and for
    good reason. We do not want whistleblowers to have a hard time
    of making their case. But I think the concern is given that low
    standard and the clear-and-convincing rebuttal standard, as
    Congress set up, that is particularly concerning in the context
    of a jury trial in Federal district court.
        Senator McCaskill. Well, I know that you are probably
    aware--I know you are a very smart guy, but, first of all, the
    cases are really hard to make. I wish I could stack documents
    here to show you all the successful whistleblower cases that
    have been brought. They are expensive. It is difficult to find
    a lawyer that will represent you. I really think the arguments
    against jury trials in this area are a pig in a poke, and I
    think we need to get to the business of respecting and being
    deferential to whistleblowers and giving them every right we
    can possibly give them, because they are doing the heavy
    lifting when it comes to waste, fraud, and abuse in this
    government right now, and we need to give them every tool they
    can possibly have to do it well.
        I thank you, Mr. Chairman, for giving me the opportunity to
    ask questions.
        Senator Akaka. Thank you very much, Senator McCaskill, and
    thank you for being here.
        Senator Burris, your questions, please.

                  OPENING STATEMENT OF SENATOR BURRIS

        Senator Burris. Thank you, Mr. Chairman. And to our
    witness, the whistleblower issues seem to be the hot topic,
    and, Mr. Chairman, you certainly raised the question. I am just
    trying to see if this Administration's position is that the
    whistleblower should not have a jury trial if they are involved
    in one of the security agencies. Is that what you are saying?
        Mr. De. Certainly with respect to the national security
    agencies, yes, we believe that jury trials would be
    particularly inappropriate in that context, yes, sir.
        Senator Burris. So what type of protection, other than the
    hearing officer or the administrative judge--is that the only
    person who would then hear the evidence that is presented by
    this whistleblower that is saying that something is afoot here?
        Mr. De. Definitely not. We certainly agree that review
    should not stop within the individual employee's agency. We
    agree that no individual agency should be the last word in
    terms of waste, fraud, and abuse----
        Senator Burris. Pardon me, Mr. De. I am taking it beyond
    the agency. I am taking it to some arbitrating body. And you
    are saying it should be only the hearing officer or the
    administrator or the judge that would be hearing this
    whistleblower's evidence against whatever they are alleging is
    taking place that is waste, fraud, or abuse.
        Mr. De. We would propose that the appeal of the
    whistleblower's claim, at least for the national security
    world, could be taken outside of their agency to a new
    Executive Branch Intelligence Community Whistleblower
    Protection Board. That Board would be comprised of senior
    Presidential appointees, both within and outside the
    intelligence community, and it would include inspectors
    general.
        Senator Burris. Yes, because I am looking at this, and in
    one of the testimonies of the persons who are coming on the
    second panel of witnesses, it called for reviewing past cases
    and trying to find ways to make amends for some of the
    unfortunate situations whistleblowers have endured in the past.
        What is the Administration's stand on some retroactive
    review of these cases?
        Mr. De. As an initial matter, we believe that this bill is
    just one piece of the Administration's broader effort to ensure
    increased accountability in government, increased protections
    for whistleblowers, and increased transparency. Accordingly, we
    would hope that once this bill is--even as this bill is being
    moved through, we can start discussions on a range of fronts,
    whether it has to do with the MSPB, the Office of Special
    Counsel (OSC), or a range of other issues of interest to this
    community.
        With respect to the retroactive consideration of cases,
    that is certainly something that we think should be paid
    attention to, and we will take it under consideration.
        Senator Burris. And back to this special Board, you do not
    think that the MSPB would be sufficient to handle these
    security whistleblowers?
        Mr. De. That is correct. We think it would be an
    inappropriate venue for these cases for a variety of reasons.
    One, we do not think as currently constituted the MSPB is well
    equipped to deal with the potentially large amount of sensitive
    information that could potentially arise in these cases.
    Second, with respect to the security clearances in particular,
    we believe that the granting of security clearances and issues
    around who should have access to sensitive national security
    information is a core Executive Branch Presidential
    prerogative, and for that reason we would suggest creating this
    new Board. If the Board is going to be dealing with security
    clearance revocation issues----
        Senator Burris. What experience would this new Board have?
    Who is this new Board?
        Mr. De. The Board would be comprised of folks who have
    experience in this area. We would love to work with the
    Subcommittee to determine the exact composition of the Board,
    but it would be independent, presidentially appointed nominees.
        Senator Burris. That has to have a whole staff and a whole
    other bureaucracy established and hearing officers and more
    cost to the taxpayers.
        Mr. De. We would hope that the initial adjudications and
    the record would be established during the agency process. This
    Board would take a de novo review of the process and the
    staffing expertise that happened at the agency level.
        Senator Burris. OK. The House version of this bill calls
    for protection for Federal contractors, and this would be a
    broad expansion of the existing law. Does the Administration
    have an opinion on providing these protections for Federal
    contractors? And do you believe that this protection would aid
    us in ensuring adequate oversight of government spending and
    operations?
        Mr. De. Given the scope of the Federal activities performed
    by contractors and the amount of Federal dollars that go to
    Federal contractors, we certainly understand the imperative to
    extend whistleblower protections to Federal contractors. And as
    a general matter, yes, we do support that extension.
        I would note that this has only been done in piecemeal
    fashion so far. Under the DOD authorization act last year, such
    rights were extended to DOD contractors, and under the stimulus
    bill this year to recipients of Federal stimulus funds. We have
    not yet seen how that has played out, and to the extent that
    there are any tweaks necessary in the framework for the
    contractor side of things, that is yet to be determined.
        I would make two particular points as Congress considers
    whether to extend whistleblower rights to Federal contractors.
    In particular, as currently drafted, the House bill would
    require the appropriate agency inspectors general (IG) to
    conduct an investigation of every whistleblower allegation
    unless it were determined to be frivolous.
        Now, I think it is unclear to us to what extent this would
    pose an additional burden on our already stretched-thin
    resources among IG offices across the Executive Branch, and so
    that is one issue I would flag as Congress thinks about this.
        The second issue is that it is worthwhile to consider what
    limitations period would be appropriate to ensure that
    contractor whistleblower claims are both raised and resolved in
    a timely manner.
        And the third point I would make is the Recovery Act
    expressly covered State and local grantees of Federal funds,
    Federal stimulus funds. To the extent that a provision is
    included in this legislation that covers contractors and
    grantees, I think there are some unique State and local
    concerns that would be raised by extending Federal
    whistleblower protection coverage to all State and local
    jurisdictions that are recipients of Federal funds. It is not
    that it is an insurmountable problem; it is just something that
    I think needs to be thought through carefully.
        Senator Burris. Thank you, Mr. Chairman.
        Senator Akaka. Thank you very much, Senator Burris.
        Mr. De, at the 2007 hearing before the House Federal
    Workforce Subcommittee, the MSPB witness at that time expressed
    concern that the House bill's district court provision
    effectively would create a 180-day standard for the Board to
    adjudicate whistleblower appeals.
        Do you think this time frame would create pressure on the
    MSPB to come to a decision in 180 days, perhaps not giving it
    enough time to fully consider a case?
        Mr. De. Let me start by saying we are well aware of
    concerns that have been raised about the pace of adjudications
    moving through the MSPB. As you rightly point out, that needs
    to be considered, if such a provision is included, is what
    effect that would have on the MSPB as it is currently
    constituted if litigants could go directly to Federal court
    after 180 days and whether that would have a salutary effect or
    a negative effect on how the MSPB goes about its own business.
        I think it would be best to hear directly from the MSPB,
    and I know some of the witnesses today feel strongly about the
    MSPB's structure and time frame. But I do think it is a valid
    concern at least to be considered as to what the impact would
    be on the MSPB as currently structured if a provision were
    allowed--if it were allowed for claimants to go to Federal
    district court until the MSPB had made a resolution and what a
    time frame would do to that decisionmaking cycle.
        Senator Akaka. Mr. De, national security whistleblowers
    make some of the most important disclosures regarding the
    security and safety of this Nation. We will hear later from
    witnesses who feel strongly that the system to hear retaliation
    claims by FBI and other intelligence community whistleblowers
    does not work.
        Please tell us more about the Administration's views on the
    need to improve protections for whistleblowers in the national
    security realm, both within and outside the intelligence
    community.
        Mr. De. First, we could not agree more that waste, fraud,
    and abuse needs to be exposed in the intelligence community in
    the same way it needs to be exposed across the Federal
    Government. It is just as important there as it is elsewhere.
    In fact, it might be more important given the importance of
    those programs to our collective security.
        For precisely the reasons that you have articulated, Mr.
    Chairman, we believe--and the reasons we have proposed an
    Intelligence Community Whistleblower Protection Board is that
    we believe it is high time that IC whistleblowers had a
    mechanism to address reprisal concerns that is outside their
    own agency. That is how they are limited today. So for the
    first time, we think it is critical that there be an avenue to
    address their retaliation claims outside of their individual
    agency.
        This Board that we are proposing would be able to review de
    novo the record that was established within the agency and
    would bring a different perspective to these claims. It would
    be comprised of people from within and outside the intelligence
    community and would have membership that included inspectors
    general from across the government, folks who have experience
    dealing with whistleblower claims generally and understand the
    burdens in these types of cases.
        I think as a general matter we think it is important that
    any structure that is set up for national security
    whistleblowers in making disclosures is structured in such a
    way to create incentives that those disclosures are made
    through appropriate channels, to either Executive or
    Legislative Branch officials who are properly cleared with the
    appropriate mechanisms in place.
        So I think, as a general matter, it is important to
    structure a system that reduces the incentive for national
    security employees to feel that their only recourse is to go to
    the press, then they have to risk the potential of retaliatory
    implications of those disclosures.
        Senator Akaka. Thank you. Mr. De, as you noted, the
    Administration has proposed creating the Intelligence Community
    Whistleblower Protection Board for Federal employees who want
    to make classified disclosures to Congress. As I noted earlier,
    I understand that the Administration is committed to
    transparency, but we must ensure that this Board makes fair
    decisions and facilitates congressional oversight and
    transparency regardless of the Administration.
        Do you have thoughts on what safeguards should be built in
    to accomplish that?
        Mr. De. Thank you, Mr. Chairman. Yes, I think there are a
    couple of things I would propose. One is that we think
    congressional notification is a key element of this, so we
    believe that any structure that is set up with this new
    Intelligence Community Whistleblower Protection Board should
    ensure that Congress is notified whenever an adverse decision
    is made against an employee who brings a claim of retaliation
    to the Board as an initial matter.
        Second, we think it is absolutely critical that an
    intelligence community employee who wishes to make a disclosure
    to Congress and wants to avail themselves of the Board in order
    to do so is able to alert appropriate Members of Congress that
    they have presented an issue to the Board so that Congress is
    aware that there is an issue pending and can take the
    appropriate measures in dealing with the Executive Branch to
    provide sufficient oversight.
        Third, we think there probably is room for considering what
    appellate rights from this Board would make sense. I think this
    is an issue that needs to be thought through carefully,
    particularly with respect to security clearance determinations,
    which we feel must stay within the Executive Branch, and
    disclosures of classified information. However, there are a
    range of whistleblower complaints that may come from
    intelligence community employees that may have nothing to do
    with sensitive information. And for those cases, we think there
    may be a role for some additional appellate review, and we
    would be happy to work with the Subcommittee to think through
    that.
        Senator Akaka. Thank you very much for your responses.
        Senator Burris, do you have further questions?
        Senator Burris. I have no further questions for this
    witness.
        Senator Akaka. Thank you. Mr. De, I want to say thank you
    so much for being here. As you know, we are trying to craft a
    bill that can be effective, and we are pleased to be working
    with you on this. Your responses will be helpful to us as we
    move forward in the legislative process.
        Mr. De. Thank you, Mr. Chairman.
        Senator Akaka. Thank you.
        Now I would like to call on the second panel to come
    forward. The second panel of witnesses includes William L.
    Bransford, who is the General Counsel of the Senior Executives
    Association. We also will have Danielle Brian, who is the
    Executive Director of the Project on Government Oversight;
    Thomas Devine, Legal Director of the Government Accountability
    Project; and Robert G. Vaughn, Professor of Law at the American
    University's Washington College of Law.
        I want to welcome all of you to this hearing today. As you
    know, we have a custom here in the Subcommittee to swear in all
    witnesses. I would ask all of you to stand and raise your right
    hand. Do you swear that the testimony you are about to give
    this Subcommittee is the truth, the whole truth, and nothing
    but the truth, so help you, God?
        Mr. Bransford. I do.
        Ms. Brian. I do.
        Mr. Devine. I do.
        Mr. Vaughn. I do.
        Senator Akaka. Thank you. Let the record note that the
    witnesses responded in the affirmative.
        Before we start, I want you to know that your full written
    statements will be made part of the record. I would also like
    to remind you to keep your remarks brief given the number of
    people testifying this afternoon.
        Mr. Bransford, will you please proceed with your statement?

     TESTIMONY OF WILLIAM L. BRANSFORD,\1\ GENERAL COUNSEL, SENIOR
                         EXECUTIVES ASSOCIATION

        Mr. Bransford. Thank you, Chairman Akaka and distinguished
    Members of the Subcommittee. I appreciate the opportunity to
    testify this afternoon about reforms on whistleblower
    protection. The Senior Executives Association (SEA) supports
    increased protections for Federal whistleblowers and is
    supportive of S. 372 and H.R. 1507. But the association does
    object to the jury trial provisions contained in the House
    bill. We believe that whistleblower reform is long overdue, and
    we hope the differences between the Senate and the House
    legislation can be reconciled and that common-sense reform can
    occur.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. Bransford appears in the Appendix
    on page 44.
    ---------------------------------------------------------------------------
        SEA would like to ensure that such legislation protects
    whistleblowers, holds managers accountable for their acts while
    not imposing burdens on supervisors who are trying to
    effectively manage their employees.
        The last time major reform of whistleblower protection laws
    occurred was in 1989, with the passage of the Whistleblower
    Protection Act. A series of decisions from the MSPB and Federal
    Circuit Court of Appeals narrowly interpreted that reform,
    resulting today in little, if any, protection for
    whistleblowers.
        Both S. 372 and H.R. 1507 greatly expand the definition of
    what constitutes a protected disclosure. In my opinion, most
    instances over the past decade where protection was not
    provided to a would-be whistleblower are related to
    interpretations by the Federal circuit.
        Senior executives hold a unique position in the government:
    They both oversee employees who are whistleblowers and may be
    whistleblowers themselves. Although SEA supports the reforms
    provided in the legislation, we do not support jury trials for
    those who claim reprisal. Section 9 of H.R. 1507 would allow
    the right to a jury trial 180 days after an employee files a
    whistleblower claim with the MSPB or the OSC. In our opinion,
    jury trials will contribute to the perception of unacceptable
    risk for a Federal manager who is trying to deal with a problem
    employee.
        The reasoning behind a jury verdict when it occurs is not
    explained. A sensational jury trial resulting in a finding
    against the government because of the manager's actions along
    with a substantial award of damages will create a fear among
    fellow managers of being subjected to a similar fate. This
    leads managers to be wary of making those tough decisions they
    have to make when dealing with problem employees.
        It is important to remember that the issue in a
    whistleblower case is often whether the employee claiming
    whistleblower status is a problem employee using whistleblower
    laws as an undeserved shield or, on the other hand, is a
    legitimate whistleblower who is experiencing an adverse action
    because of protected activity. Adding jury trials to the mix
    will give even the best manager pause before confronting an
    employee who has made a disclosure, regardless of how valid the
    manager's case or how pure the manager's motives.
        The jury trial provision in the House bill is particularly
    problematic because it contains no limit on damages and is
    vague about what issues go to the jury. Also, it calls for a
    right to a jury trial even if the special counsel or the MSPB
    promptly and appropriately dispose of a whistleblower claim.
    SEA believes that the MSPB should be given a chance to apply a
    broader, more appropriate law that protects whistleblowers. The
    Board's record of efficient resolution will result in prompt
    and thorough decisions that can be reviewed by any appropriate
    circuit court of appeals in the country.
        To this end, SEA also supports other common-sense
    provisions in the bill such as providing transparency to a
    claim that security clearance revocation is based on
    whistleblower reprisal, providing managers with indemnification
    for attorneys' fees they expend if the manager is found to have
    been just doing his or her job after having been accused of
    reprisal, and allowing combinations of disciplinary actions to
    be imposed on a guilty manager.
        SEA encourages the Subcommittee to move forward with the
    language contained in S. 372. In our view, whistleblower reform
    without jury trials will contribute to a government that works.
        On behalf of SEA, I thank you for your consideration of the
    critical enhancements to the Whistleblower Protection Act that
    will clarify the law for agencies, Federal managers, and
    whistleblowers. This bill is clearly a good government
    initiative that SEA would like to see move forward. SEA looks
    forward to working with you to ensure that this legislation
    creates a fair and transparent system for addressing
    whistleblower and executive concerns.
        Thank you, Mr. Chairman.
        Senator Akaka. Thank you, Mr. Bransford. And now we will
    hear from Ms. Brian.

    TESTIMONY OF DANIELLE BRIAN,\1\ EXECUTIVE DIRECTOR, PROJECT ON
                          GOVERNMENT OVERSIGHT

        Ms. Brian. Thank you very much, Chairman Akaka, for
    inviting me to testify today and for your long leadership on
    whistleblower protections and protecting Federal employees.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Ms. Brian appears in the Appendix on
    page 48.
    ---------------------------------------------------------------------------
        Project on Government Oversight (POGO) was founded by
    Pentagon whistleblowers concerned with wasteful spending and
    weapons that did not work. Over the years, our mission has
    evolved, but we remain devoted to our roots of protecting brave
    truth tellers inside the Federal Government.
        In general, POGO believes the House language does a much
    better job providing meaningful whistleblower protections than
    the Senate companion bill for two reasons: It provides real due
    process through access to jury trials, and it extends
    protections to our very important national security
    whistleblowers. My colleague, Tom Devine, is representing our
    coalition of organizations in supporting access to jury trials,
    so I will focus my testimony on why we need to protect national
    security whistleblowers.
        Many Federal employees working in the intelligence agencies
    were carved out from getting even the pathetic whistleblower
    protections that are accorded to other Federal employees, so
    that we now have a situation, as Senator McCaskill just pointed
    out, where contractors are protected even if, for example, the
    Federal employee who is overseeing them is not. There is
    currently a random patchwork of laws, which provides
    protections to national security contractors and some national
    security Federal employees, even intelligence ones, for
    example, at the Department of Energy (DOE) and the Nuclear
    Regulatory Commission (NRC), but not others. And these separate
    but equal systems set up within the CIA and FBI are not
    working.
        We entrust national security and intelligence Federal
    employees with our Nation's most sensitive information. Why
    would we not also trust them to protect those secrets when
    working to correct problems? And I would like to point out that
    in the earlier testimony from the Justice Department, I did not
    hear any argument that explains why national security
    whistleblowers should not be given the same right to a jury
    trial that other Federal employees should have.
        It is because of national security whistleblowers that we
    have learned that, for example, Congress was being misled about
    A.Q. Khan's nuclear proliferation scheme; the existence of the
    CIA's secret prisons; our government's use of warrantless
    wiretaps; TSA and FBI incompetence; and secret detentions at
    Guantanamo. Congress learned about all of these disclosures
    through the press, and all of these whistleblowers lost their
    jobs. By not providing real protections for national security
    whistleblowers, we are actually driving them to the press and
    encouraging leaks of classified information. That is a lose-
    lose situation.
        I want to be very clear. We are not asking to protect the
    disclosure of classified information to anyone who is not
    cleared to receive it. Whistleblower protections will not
    supersede existing rules for handling classified information.
    We would support adding language to the bill to make this
    explicit, if necessary.
        It is in the self-interest of the Congress, perhaps most
    importantly, to encourage those who are aware of wrongdoing to
    make their disclosures to Congress. Formal briefings from
    agency heads have their place, but they do not truly inform the
    Congress of the real goings-on at an agency, and House
    Intelligence Chairman Silvestre Reyes just recently articulated
    this point in the letter he sent to every CIA employee where he
    pointed out that essentially the House Intelligence Committee
    had been focused on notification rather than real discussion. I
    would argue the most effective way to begin real oversight
    would be to encourage and protect national security
    whistleblowers coming to the Congress.
        By virtue of your being elected to office, you have both a
    right and a duty to hear the vast majority of our Nation's
    secrets, and many of your staff have been similarly cleared.
    For particularly sensitive information, you as Members of
    Congress also have a right to demand to be read into those
    programs. POGO believes strongly that the Congress should not
    blindfold itself by adding new restrictions on your access to
    information.
        It is in this provision regarding disclosures to Congress
    that the Senate language is actually preferable to the House.
    We believe the House language is too confusing for a
    whistleblower in that it is very specific about which committee
    and which kind of information is protected, and the reality is
    that most whistleblowers do not know which Member of Congress
    sits on what committee and which committee has what
    jurisdiction over what agency.
        For example, I would also point out the best congressional
    oversight of the FBI has been conducted by Senator Grassley,
    and it has been out of his personal office.
        One problem that remains with the Senate provision is the
    use of the word ``authorized'' before ``Members of Congress.''
    Who authorizes them? The Executive Branch? History has shown
    the Executive Branch has repeatedly and mistakenly asserted its
    power to do so.
        Let me briefly put faces on three national security
    whistleblowers.
        As a CIA intelligence officer and later in the Pentagon,
    Rich Barlow learned that top U.S. officials were allowing
    Pakistan to manufacture and possess nuclear weapons. He also
    discovered that U.S. officials were hiding these activities
    from Congress. Barlow objected and suggested to his supervisors
    that Congress should be made aware of the situation. Because
    Barlow merely suggested that Congress should know the truth, he
    was fired. Barlow is now destitute and living in a trailer.
        Federal Air Marshal Robert MacLean protested DHS plans to
    secretly neutralize budget shortfalls by canceling air marshal
    coverage on long-distance flights, even though there was a
    suicide terrorist hijacking alert. He protested up the chain of
    command to no avail. Ultimately, he made an unclassified
    disclosure to the press. Three years later, the agency fired
    him because they retroactively labeled information in his
    disclosure as ``sensitive security information.'' His case has
    been pending before the MSPB for 3 years without a hearing. He
    is unemployed.
        When the Department of Justice (DOJ) lawyer, Thomas Tamm,
    became aware of the government's use of warrantless wiretaps,
    he agonized over the legality of the program. He was rebuffed
    when he tried to tell a former colleague working on the Hill
    about his concerns. Ultimately, he alerted the New York Times,
    their story earning a Pulitzer. Congress constrained the
    program, but Mr. Tamm became a target of an FBI investigation,
    lost his job, and has racked up tens of thousands of dollars in
    legal fees.
        Passing strong whistleblower legislation is a significant
    step. It will not, however, be enough. We cannot forget these
    people whose careers have been shattered because this law has
    been so late in coming.
        I was very gratified, Senator Burris, that you raised this
    question to the Justice Department witness and that he
    expressed an open mind to reviewing cases such as Barlow,
    Maclean, and Tamm to see if there is some way of making them
    whole. That would be a message sent around the Federal
    Government that whistleblower protections are more than a
    campaign promise, they are a reality.
        Thank you.
        Senator Akaka. Thank you very much, Ms. Brian. Now we will
    hear from Mr. Devine.

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

        Mr. Devine. Thank you, Mr. Chairman. I am testifying today
    for the Government Accountability Project, but my views reflect
    those of the Make It Safe Coalition, a trans-ideological, non-
    partisan network of whose mission is supporting whistleblowers,
    those employees who use free speech rights to challenge abuses
    of power that betray the public trust. It used to be a little
    bit more lonely battle. A few years ago, there were only about
    20 groups working on this. As of today, we have over 300 who
    have signed our coalition letters or sent their own letters of
    support.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. Devine with attachments appears
    in the Appendix on page 57.
    ---------------------------------------------------------------------------
        Just this morning, the Society for Conservation Biology
    sent you a letter on behalf of its 12,000 members, many of them
    Federal scientists, in support of H.R. 1507, the House version
    of this legislation.
        A few weeks ago, during a 24-hour time period, we got so
    much public support for the House version of the Whistleblower
    Protection Act that it took second place in the White House's
    Open Government Dialogue for Transparency in Government.
        All of us are united behind one basic principle: That
    whistleblowers should be entitled to best practice free speech
    rights enforced by full access to court, which is what
    President Obama promised when he ran for office.
        I also want to thank you, Mr. Chairman, because we have to
    thank you for marathon leadership of this issue. I have very
    vivid memories of back in 1999, your aide, Nancy Langley,
    taking me to every Member of this Committee just to get them
    interested in the Whistleblower Protection Act--let alone fix
    it. And after 10 years, with your continued leadership, we are
    going to get this job done, and we are going to do it right.
        We have learned a lot over the last 10 years, and today's
    forum creates the necessary record to apply those final lessons
    learned. And the foremost lesson is that doing it right means a
    fair day in court.
        This is the fourth time Congress will have passed the same
    free speech rights. Why? The Achilles heel has always been
    inadequate due process. The Whistleblower Protection Act was
    largely passed because employees had only won four cases before
    the MSPB in the 1980 whistleblower cases. Congress kept the
    same due process structure, but gave more guidance for the
    Board. Well, they ignored it, so in 1994, Congress amended the
    law, and again gave the Board more guidance. Well, guess what?
    In this millennium, since 2000, we have only had three
    whistleblowers who have won decisions on the merits.
        Enough is enough. It is time to end the broken record
    syndrome, Mr. Chairman.
        One thing that has been very conspicuous by its absence
    from today's hearing is a defense of the MSPB's record. It is
    not surprising, though, because there is no credible defense.
    Its track record is 3 in 53 against whistleblowers for
    decisions on the merits since the millennium. And never has a
    whistleblower won a case in 30 years on the misconduct that
    matters most to the taxpayers, government breakdowns that have
    national implications: The Challenger disasters, Star Wars,
    Iran-Contra, domestic surveillance, food contamination, tens of
    thousands of people dying from unsafe prescription drugs;
    weapon of mass destruction; the warnings before 9/11. None of
    the whistleblowers who challenged those breakdowns could find
    justice at the MSPB.
        I want to spend the last portion of my time responding to
    some of the concerns that were raised this morning, and, in
    particular, that Federal managers would be too scared to fire
    whistleblowers if they had access to jury trials. And there
    actually is some common ground here.
        Mr. Bransford made this point by stating that, ``Adding
    jury trials to the mix will give even the best manager pause
    before confronting an employee who has made a disclosure. . .
    .'' Well, that means the law might finally start working.
    Federal managers might pause before they take actions to fire
    whistleblowers. Thank goodness.
        But why is it that Federal managers are the only ones too
    scared to do the right thing in whistleblower cases? We have
    had jury trials for State and local employees for over a
    century. It has been there for Equal Employment Opportunity
    (EEO) employment discrimination cases since 1991. It has been
    there for corporate workers in 13 precedents, including eight
    since 2002, five in the last Congress. What is it about these
    Federal managers that they are afraid to exercise authority
    when people challenge government misconduct? Maybe the
    solution, Mr. Chairman, is to have additional training for
    Federal managers as part of S. 372 so that they will exercise
    their authority when they need to.
        Finally, this fear has flunked the reality test. It is not
    about jury trials. It is about anything that strengthens
    whistleblower rights. It was brought up as the reason to veto
    in 1988 when the Whistleblower Protection Act was first passed.
    It has never been proven in reality. The rates of adverse
    actions and performance-based actions, accountability measures,
    have stayed constant before and after whistleblower rights were
    strengthened, before and after State and local governments
    added jury trials. It is time for Federal managers to stop
    crying ``Wolf.'' And if they will not stop, it is time for
    Congress to stop listening to them.
        Senator Akaka. Thank you very much, Mr. Devine. Now we will
    hear from Mr. Vaughn. Will you please proceed?

    TESTIMONY OF ROBERT G. VAUGHN,\1\ PROFESSOR OF LAW, WASHINGTON
                  COLLEGE OF LAW, AMERICAN UNIVERSITY

        Mr. Vaughn. Thank you. My name is Robert Vaughn, and I am a
    Professor of Law and A. Allen King Scholar, at the American
    University's Washington College of Law. Mr. Chairman, I
    appreciate this opportunity to speak to this Subcommittee about
    this important piece of legislation. My testimony focuses on
    one of the differences between the House and Senate versions of
    the legislation: The alternative recourse provision, including
    a trial de novo in a Federal District Court with a right to
    trial by jury.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. Vaughn appears in the Appendix on
    page 141.
    ---------------------------------------------------------------------------
        I would like to say a few things about the right to trial
    by jury in these cases and use the remainder of my time to talk
    about the implications of the alternative recourse provision on
    the administrative process.
        The jury trial is an integral part of our democracy. From
    the time of the enactment of the Seventh Amendment, the jury
    has been seen as a coordinate branch of government checking the
    power of unelected judges, representing the community,
    providing insights into the weaknesses of the laws, creating
    political awareness in citizens, and providing an important
    ``badge of citizenship.''
        Because whistleblowers help to guarantee legal and
    political accountability of unelected executive officials, the
    use of juries in these cases is particularly apt. Despite
    popular stereotypes to the contrary, several decades of social
    science research emphasized the competence and dedication of
    jurors. Jurors and judges usually agree, and disagreement
    cannot be ascribed to jury incompetence or to the unwillingness
    to follow the law.
        The research also shows that juries are as capable as legal
    experts in deciding complex factual cases. The common
    stereotypes about juries belied by the research are that jurors
    favor individuals against organizations, particularly
    corporations; that jurors find against defendants based on the
    defendant's ability to pay; and that jurors are disabled by
    complex factual cases. These stereotypes are pertinent to the
    use of the jury trial and whistleblower cases because these
    cases pit often sympathetic individuals against the government
    with the resources to pay any damage.
        One scholar studying the literature regarding the treatment
    of corporate defendants concludes that jurors are largely
    supportive of the aims of American business, but hold them to a
    higher standard than individuals regarding the care needed to
    protect workers and consumers. Moreover, she found ``several
    studies question the conventional wisdom that the financial
    resources of corporate defendants encourage a deep pockets
    approach.''
        Assuming that whistleblower cases could be classified as
    complex cases, research shows that jurors are effective in such
    cases. They are diligent and skeptical in evaluating expert
    testimony. Jurors perform as ably as judges in complex factual
    cases. The general research regarding jury performance
    reassures us about the use of the jury in whistleblower cases.
        One expert calls a jury trial a ``trial by jury and a
    judge.'' Federal judges have ample powers to supervise juries
    and to correct and prevent mistakes.
        I also want to address the implications of the alternative
    recourse provision. In my written testimony, I present several
    arguments supporting the following propositions:
        First, use of the alternative recourse to Federal district
    courts will be the unusual not the common occurrence.
        Second, a rational decisionmaker would not rush the
    resolution of whistleblower claims before the Board to satisfy
    the 180-day deadline.
        Third, the effects of the alternative recourse provision on
    the Board does not counsel against the adoption of the
    provision. The alternative recourse provision will not waste
    administrative resources. Even if all whistleblowers who are
    likely to use the alternative recourse provision have had their
    claims fully adjudicated by the Board, the administrative
    resources devoted to these cases is a small percentage of the
    Board's revenues, something on the magnitude of tenths of 1
    percent.
        Four, the alternative recourse provision can benefit
    judicial and administrative adjudication The encouragement of
    settlement is one important benefit.
        I believe that both the alternative recourse provision
    contained in the House version and the right to jury trial that
    it provides is both an effective and a safe way of providing an
    alternative form to whistleblowers. Thank you.
        Senator Akaka. Thank you very much, Mr. Vaughn, for your
    statement.
        Mr. Bransford, Mr. Devine responded to SEA's concerns that
    giving whistleblowers access to district courts could
    contribute to a perception among Federal managers that it is
    too risky to discipline problem employees. Would you like an
    opportunity to respond to Mr. Devine's comments?
        Mr. Bransford. Yes, Mr. Chairman. I do appreciate having
    that opportunity. I think the life of a Federal manager is
    difficult and complex. Typically, a career Federal employee
    becomes a manager because they are the best technician, not
    necessarily because they are the best supervisor or the best
    person with people skills. Then they are put in the job with
    little or no training--in the government, it is hit and miss.
    Some agencies are better than others at providing that
    training, and I know we have worked with you, Chairman Akaka,
    to try to correct that.
        Then the manager trying to get the job done deals with a
    system where there is an EEO system, where EEO complaints are
    filed, and the employee can simply with impunity file a
    complaint of EEO, and if you talk to EEO professionals, they
    will tell you that many employees who file them really are not
    complaining about discrimination. They are complaining about
    workplace issues.
        And then you have the whistleblower laws, and you have a
    complex set of circumstances. And all of these give the manager
    some reason to avoid dealing with a problem employee. And the
    complaint is often heard that managers let problems go and they
    do not deal with them; then the problems become big. And I
    think as you make this more complex and even more difficult, I
    think the uncertainty of a jury trial, the sensationalism of it
    will just add to that and make it more difficult for managers
    to deal with problem employees. I have seen it. I have seen
    also 10, 15 years ago much more enforcement of the
    whistleblower laws, much more activity by the MSPB, a lot of
    settlements that Mr. Devine does not talk about that used to
    occur. Cases just simply are not brought anymore, and they are
    ignored. Something needs to be done to reform the law, but I
    think jury trials goes too far. Thank you.
        Senator Akaka. Thank you. Mr. Bransford, if a jury trial
    provision were included in a final bill, do you have any
    thoughts on possible ways to solve or mitigate the concerns of
    Federal managers?
        Mr. Bransford. Senator, I was very intrigued by Mr. De's
    approach, and I found most of what he was saying things that I
    would agree with, particularly the limit on compensatory
    damages along the lines of what is in an EEO case. But I have a
    real concern about changing the burden of proof to agencies
    from clear and convincing--in other words, when an agency can
    get out of whistleblower reprisal by proving by clear and
    convincing evidence that it would have taken the action anyway.
    I think reducing that standard is problematic because it is
    difficult enough for a whistleblower to prevail even with that
    fairly high standard, and that is one of the significant
    reforms in 1989 that, I believe, has actually made a
    difference.
        So I would be concerned about changing that. The other
    changes, though, I did find intriguing.
        Senator Akaka. To follow up on this, Professor Vaughn's and
    Mr. Devine's testimony suggest that there likely would be a
    very small number of whistleblower cases brought before juries.
    Mr. Bransford, do you agree or disagree with that analysis, and
    how would this affect your concerns for Federal managers?
        Mr. Bransford. Well, I think initially because of the
    existence of this new remedy, there would be a lot of cases. I
    think over time the cases may diminish because judges may use
    certain tools they have that Professor Vaughn talked about,
    such as motions for summary judgment and things like that. But
    I think that we have seen in the EEO system a lot of employees
    using that as a way of coming back against a manager, and I
    think that you would see a lot more whistleblowers, a lot more
    employees who would claim to be whistleblowers, who were in a
    problem employee situation, and I think they would use whatever
    system they had that was available.
        I do agree that it is expensive to go to Federal court, and
    that may keep down the numbers somewhat.
        Senator Akaka. Mr. Devine, would you like to address why
    this issue is so important to whistleblower rights advocates,
    if the House's district court provision likely would be used
    infrequently?
        Mr. Devine. Thank you, Mr. Chairman. First, there is a
    question of credibility. This was the policy that the President
    campaigned on, and we have not heard a reason, a public policy
    basis to back off of that commitment.
        Second, it is a matter of fairness for Federal employees.
    They are about the only whistleblowers in the labor force who
    do not have access to juries to enforce their rights. And it is
    not sending a very good message to them that we are serious
    about whistleblower protection if we give them second-class due
    process compared to the rest of the labor force. So it is for
    credibility and legitimacy of the law.
        Third, it is for the public's right to know. Mr. Bransford
    feels that this may be sensational. That means the public is
    enfranchised to make decisions about government actions that
    have an impact on them, and we think that is a real advantage
    of jury trials consistent with Professor Vaughn's insights.
        The fourth is the people who do make a significant
    investment--which few can afford, but if they do, they will
    actually have a fighting chance to win when the trial is over
    with. They do not at the Merit Systems Protection Board right
    now.
        Fifth, there will be a much better chance for settlements.
    Managers will know, as Mr. Bransford is concerned, that they
    might actually lose when somebody files a lawsuit, and that
    means they will be negotiating in good faith, settlements will
    be more fair, and there will be a lot more of them to prevent
    litigation. That is what happened when Congress gave jury
    trials to DOE and NRC employees under the Energy Policy Act in
    2005. Before that Act was passed, there were 191 cases in the 3
    years before its passage. The 3 years after its passage, there
    were 112. The litigation load went down because there was more
    of a fair fight when there is a conflict. But, most
    significant, it is not about quantity. It is about quality. It
    is about the types of cases. Most of the cases probably can be
    heard by the MSPB, and we want to also work with you to improve
    the administrative process. But the Board is not structured for
    the cases that are the most significant reason we have this
    law, those with national impact, those where there has been a
    serious governmental breakdown. That is out of the MSPB's pay
    grade, quite frankly. They do not have the resources for it.
        We did one trial that went on for 5 weeks, and the poor
    administrative judge said, ``Mr. Devine, this is like trying to
    get a snake to swallow an elephant. We are going to have to
    have a supplemental appropriation for the gap docket if you
    keep bringing cases like this.''
        Well, there has to be a home that is ready for the most
    significant government breakdowns, the laundry list of those
    where the Whistleblower Protection Act has been AWOL over the
    last 30 years.
        Senator Akaka. Thank you. Ms. Brian.
        Ms. Brian. Mr. Chairman, if I could add yet one more reason
    to Mr. Devine's long list, which is we believe that having
    access ultimately to jury trials after the administrative
    process would actually improve the quality of the
    administrative process because they would know someone outside
    was actually reviewing their work. That is essentially how the
    court system works outside this administrative process, and we
    think, if the MSPB knew there was going to be genuine scrutiny
    of their work, that it would actually improve the work and
    would not necessarily require people to go on to jury trials at
    all.
        Mr. Devine. We think the Board's track record will be more
    balanced if there is Federal court interpretations of the facts
    to help keep them more honest.
        Senator Akaka. Thank you. Professor Vaughn, your written
    testimony provides a great deal of detail on how a jury trial
    provision would function in practice, which will be useful to
    this Subcommittee's understanding of the issues involved. Your
    testimony concludes that few whistleblower cases likely would
    be filed in district court. I would like to give you an
    opportunity to walk us through your analysis and its
    implications.
        Mr. Vaughn. Thank you. I think that there are several
    reasons. One is that the cost of essentially Federal
    litigation--when I was growing up, my father was a small-town
    attorney, and when I would complain about things, he would say,
    ``Don't make a Federal case out of it.'' And what he meant by
    not making a Federal case out of it was that was an expensive,
    time-consuming activity. It is also one where we have some of
    the most important cases decided, which is what we also mean by
    making it a Federal case.
        I think the costs, time, and money of mounting a Federal
    case would limit the number of whistleblowers who would use the
    alternative recourse provision. I think that the Board's
    practice, there are aspects of it. The majority of persons who
    appear before the Board are unrepresented or are represented by
    persons who are not attorneys. As we heard earlier,
    whistleblowers have trouble finding someone to represent them.
    Those pro se whistleblowers would, I think, particularly find
    it difficult to use the alternative.
        At the Board there is a right to a hearing. That is not
    necessarily the case in Federal court. There is interim relief
    at the Board. Many cases decided at the Board would be decided
    within the 120-day limit. About 50 percent of the cases are
    dismissed for timeliness or lack of jurisdiction. So the
    suggestion would be that a lot of the cases do not consume very
    much resources at the Board.
        Our experience with other statutes like Title VII, the
    Sarbanes-Oxley Act, demonstrate that the majority of
    whistleblowers who would be able to leave the administrative
    process do not do so. And then there are problems also of delay
    in Federal court. The statistics I have in my testimony deal
    with the time from filing a civil action in Federal court
    regarding employment-based actions until there is a disposition
    at trial, and those times, depending on the kind of case that
    it is, run from over 1 year to over 2 years. So there would
    be--a whistleblower would face delay.
        As I mentioned in my written testimony, there are a number
    of dispositive motions that are available in Federal court. The
    motion for summary judgment, motion for judgment is a matter of
    law, the renewed motion for judgment is a matter of law which
    prevent the cases from being decided by a jury or reverse the
    jury's determination. Summary judgment has become a very common
    motion in Federal court. The data regarding employment-based
    cases show that a very small percentage of those cases proceed
    to a jury trial, and few civil cases that are filed in Federal
    court actually reach trial, the most recent statistics say less
    than 2 percent. And, finally, there will be a confined limit of
    the pool of potential whistleblowers to use this process. So I
    think that the number of jury trials that we would expect in
    Federal court would be fairly limited.
        If I could, I also wanted to mention and agree about the
    problem with the removing the clear and convincing evidence
    standard. I am not sure I agree with the conclusion that juries
    would find it difficult to apply the clear-and-convincing-
    evidence standard when they apply preponderance-of-the-evidence
    and the reasonable-belief standard. Juries, as a group, may not
    have as much experience with the standard as they do with a
    preponderance or reasonable belief, but the individual juries
    themselves do not have experience at all when they begin a
    case. And one of the functions of the court is to describe the
    character of the burdens of persuasion that are based--that
    rest in the case, and juries do a diligent job of following
    those. And just off the top of my head, in civil actions we
    have a number of tort actions, including defamation, where
    clear and convincing evidence is the standard that is used,
    that juries have to be instructed on. In almost all cases,
    contract and commercial cases that involve fraud or allegations
    of fraud, clear and convincing evidence is the standard that
    the court has to instruct the jury about.
        So I am, I think, more optimistic about juries being able
    to use the clear-and-convincing-evidence standard.
        Senator Akaka. Professor Vaughn, thank you for walking us
    through that. As you know, the House bill would allow
    whistleblowers to file district court cases after the MSPB
    decision and get a de novo trial by jury. Are you aware of
    other statutes that allow a similar process, and what are your
    views on this process?
        Mr. Vaughn. Title VII has that procedure. I think more
    recently the Consumer Product Safety Improvements Act of 2008,
    one of the sections of that provision, has a similar mechanism
    in it. There is probably an analogous provision in the American
    Recovery and Reinvestment Act of 2009. It is analogous because
    exhaustion in those cases are through the Office of Inspector
    General, not through administrative adjudication. But it has a
    similar provision in it. These are the ones I can think of, but
    these seem to me to be not an uncommon or unexpected provision
    in this kind of law.
        Senator Akaka. Thank you. Ms. Brian, as you know, the DOJ
    has proposed a new Executive Branch Board to review classified
    disclosures to Congress. Could you address the areas of
    agreement or disagreement with the Administration on the
    appropriate methods and protections for whistleblowers in the
    intelligence agencies?
        Ms. Brian. Given the hybrid model that was testified to
    earlier, there was some new information that I thought was
    encouraging. There was an acknowledgment that the people on
    that Board would be presidentially appointed. We hope that also
    means Senate confirmed. The reason that is important to us is
    it would allow the Congress time to evaluate whether you think
    those people are appropriate and independent in making these
    kinds of judgments.
        I was also pleased to see that there was an acknowledgment
    that it is important that a whistleblower have the access to
    the Congress by notifying the Congress not after the end of any
    review, but I am hoping what they meant was at the initiation
    of a disclosure to this Board so that if a Member of Congress
    was so inclined, that they could go to that Board and find out
    exactly what this disclosure is up front.
        One of the big concerns I have had is that this Board not
    become a way of preventing information from getting to the
    Congress. I want the Congress to be able to access it as it
    wishes.
        We think that there is some possible agreement on how to
    make this Board work. It is just really going to be very
    important to get a better sense of the details of exactly what
    the procedures would be for those who were making disclosures
    to it and the rights for those people.
        Senator Akaka. Thank you. Mr. Devine.
        Mr. Devine. Mr. Chairman, we also think that it is very
    important that the Board's jurisdiction be limited to cases
    where there is a demonstrable harm to national security. The
    idea that because you work at the FBI, or because you work at
    the National Security Agency (NSA), you are not entitled to
    normal due process, we really cannot accept that. Title V has a
    breakdown for employees whose jobs are principally for
    intelligence functions and those whose jobs are more generic
    public service. And if you are an employee at one of these
    agencies who is not doing sensitive work, there is really no
    excuse to put you at a lower level of due process. And then
    even if you are an employee who is doing sensitive work, there
    needs to be a demonstration that a public trial would harm
    national security. It might actually help national security by
    nipping serious problems in the bud with the scrutiny.
        Senator Akaka. Professor Vaughn, in your view, would it be
    possible to conduct jury trials for intelligence community
    whistleblowers without jeopardizing security?
        Mr. Vaughn. In many instances, I think that might be
    possible. I was struck by the testimony of the American Civil
    Liberties Union in the House on the House version of the bill
    where they talked about a number of the kinds of devices that
    would be available to a judge to limit the risks and the most
    serious cases where national security information might be
    involved.
        Mr. Devine. Mr. Chairman, they already do have jury trials
    all the time under the EEO laws. There is no second-class
    status for FBI or intelligence agency employees who are
    challenging individual misconduct which violates their personal
    rights. This only seems to be impermissible when they challenge
    government misconduct that violates the public interest. I do
    not think that is really a valid distinction.
        Ms. Brian. Mr. Chairman, if I could add one more point----
        Senator Akaka. Thank you, Mr. Devine. Ms. Brian.
        Ms. Brian [continuing]. Which is that GAO looked into this
    question and concluded that there should be no concerns about
    providing intelligence agency employees with full due process
    rights, including jury trials, given that the courts already
    have a long history of handling classified materials and
    knowing how to manage those problems.
        Senator Akaka. Ms. Brian, with respect to national
    security, the House whistleblower bill would protect
    disclosures only if they are made to members of specific
    congressional committees. In your testimony, you stated your
    preference for the Senate provision because it allows
    whistleblowers to make disclosures to legislative staff holding
    an appropriate security clearance.
        Can you discuss the challenges that whistleblowers
    experience when making disclosures of classified information to
    Members of Congress?
        Ms. Brian. Thank you very much, Chairman. I think that is a
    really central question as you consider this legislation. It is
    not only to properly cleared legislative staff, but it is also
    to any Member of Congress, regardless of committee. And the
    problem a whistleblower will face is they are very likely, as
    they decided to make a disclosure--which is in itself a very
    difficult decision to make. But once they have decided to make
    such a decision, the likely place they will turn is to their
    own Member of Congress because they are a constituent. It is
    very unlikely that Member of Congress sits on the committee of
    jurisdiction.
        The next problem is it is unlikely that the whistleblower
    has read the law that specifies that their disclosure is only
    protected if they go to a particular committee. And so it
    creates this unfair burden for that person who is in good faith
    going to either their Senator or Congressman or perhaps a
    Member who they have seen is already conducting oversight in
    that arena outside of the committee jurisdiction, and they want
    to go to them because they think they are a particularly
    effective Member of Congress. I believe that person handling
    classified information properly by going to the cleared staff
    or meeting with the Congressman himself should be protected.
        Senator Akaka. Ms. Brian, under the WPA, agencies are
    required to inform their employees of their whistleblower
    rights. In response to this mandate, OSC created a voluntary
    program to assist agencies in making their employees aware of
    their rights. Currently, numerous agencies have completed the
    certifications or are participating in the program. However,
    you have indicated that many employees, particularly national
    security employees, are not educated on their whistleblower
    rights and how to report misconduct.
        What further actions must Congress and the agencies take to
    ensure that employees understand their whistleblower rights?
        Ms. Brian. I think to clarify my testimony, I was not
    suggesting that they are not aware of their rights. They just
    do not have adequate rights in the first place. And so what we
    need to do is give them those rights. That is what I would say.
        Mr. Devine. Mr. Chairman, the premise of your question was
    well taken; however, I am not sure what else Congress can do to
    legislate. It might be very helpful to have a special program
    for managers on rights and responsibilities under this
    legislation. But it was part of the 1994 amendments that agency
    heads have a duty to train, to inform their employees of their
    rights. It was part of the No Fear Act that they have to have
    detailed programs, and the agencies simply have not been
    complying. I do not think the problem is lack of congressional
    legislation. It has been lack of leadership within the
    Executive Branch.
        The prior Special Counsel program that you referenced was
    an ambitious and genuine one to get agencies up to speed and
    making commitments to train their employees on their rights,
    and it ended with the last special counsel.
        The way you folks can really help is to push the
    Administration to hurry up and appoint a new special counsel
    and a new chair of the MSPB so the agencies that turn these
    laws into reality can start functioning properly.
        Senator Akaka. Thank you so much. This has been a good
    discussion.
        Finally, I want to give each of you an opportunity to give
    closing remarks on your thoughts about what has been said or on
    what challenges lie ahead. Mr. Bransford, will you please
    begin.
        Mr. Bransford. Thank you, Chairman Akaka. I believe, if my
    memory serves me correctly, Mr. Devine and I sat on a similar
    panel to this in November 2003 with similar legislation making
    similar positions. And here it is 2009, and there is still no
    reform.
        What I have seen in my law practice and what I have seen in
    representing the Senior Executives Association over the years
    is a gradual erosion, to the point where today there is no
    whistleblower protection. It is non-existent. Just this week, I
    had two people telephone me who were concerned that they are
    being retaliated against because they raised issues as part of
    their jobs, absolutely 100 percent part of their jobs. And, of
    course, the current whistleblower law would not protect them,
    so we are dealing with helping these people through other
    means, perhaps EEO or whatever. So I hope that there is a
    prompt resolution and reconciliation.
        I also would say that on a regular basis I meet with
    hundreds of Federal managers every year. I do training for
    Federal managers. I focus on why is it that Federal managers do
    not deal with problem employees. And while fear of
    whistleblower prosecution does not come up--it does not come up
    because it does not happen. But it does come up in the context
    of EEO; it does come up in the context of the complexity of the
    Federal system, the absence of training and other such things.
    And I do know that Federal managers will sometimes have pause
    in taking action out of fear of uncertainty of the system. And
    my genuine concern is that jury trials will add to that.
        And I do believe the MSPB is capable of deciding these
    cases, of hearing them and issuing good decisions, assuming the
    law were changed, and especially allowing review by the other
    circuit courts of appeals to interpret those laws.
        So I hope the reform can take place and can take place this
    year, because I do believe it is needed.
        Senator Akaka. Thank you very much, Mr. Bransford. Ms.
    Brian.
        Ms. Brian. Chairman Akaka, thank you for the opportunity. I
    have been working on these issues since the 1980s, and I think
    you probably have also. There has been longstanding concern on
    the part of the Congress to fix the problems that we have been
    discussing. I think the important change that we are seeing is
    this is the first Administration that I think is, first of all,
    not threatening to veto this legislation. We see a dramatic
    change in the level of communication with the community and
    hearing our concerns and engaging. And I think it is something
    that is going to finally mean that we will be seeing a Rose
    Garden ceremony where whistleblower protections will pass this
    year.
        Senator Akaka. Thank you. Mr. Devine.
        Mr. Devine. Mr. Chairman, this legislation has evolved and
    grown over the last 10 years as we have learned a lot of
    lessons. When it was first introduced, almost all the
    whistleblower laws were enforced through administrative, solely
    administrative remedies. Now the rule is to give people normal
    access to enforce these rights, as we have learned from track
    records.
        I think the point that we are at with the Whistleblower
    Protection Act is consolidating the lessons learned of the last
    10 years and creating a truly modern law for Federal employees.
    The mandate does not seem to be in debate from any side at this
    point. It is just how to do it right. And that is merely a
    process of making sure that we have kept track of the best
    practices and that we incorporate them into this legislation so
    that four will be the charm. And the timing is very critical.
        We are in a period of unprecedented government spending,
    crises in terms of civil liberties, human rights abroad, as
    well as our economy that will require our government to be at
    its best. And that is why we put first-class accountability
    measures for whistleblowers for all the people who receive
    stimulus funds, and that is the reason why we cannot settle for
    second-class due process in a first-class good government law
    for the Federal workers. It is not too late, but we need to
    finish this before the stimulus spending gets fully underway,
    and we will be ready for whatever comes.
        Senator Akaka. Thank you very much. Mr. Vaughn.
        Mr. Vaughn. Mr. Chairman, my last word is it is always
    dangerous how you begin your career. As a 26-year-old young
    attorney, I began to work with Ralph Nader on a project on
    civil service reform, and it was his opinion that the most
    important part of that reform was the protection of
    whistleblowers. And over the course of my career, I have seen
    how whistleblowers disclose mismanagement and corruption. They
    secure openness in government, impose accountability, support
    the rule of law, protect the First Amendment.
        It is our obligation to many ethical and brave employees to
    protect them. The protections that we provide them are also the
    cost that we pay, the price that we pay for the important
    disclosures that they make that make our government accountable
    to the people, and I think that in doing that, we can take
    risks. With the House provision, I think that we are not taking
    risk that the provisions that are contained in the House
    provision that I have discussed are not novel or untried or
    dangerous. And I think they are part of that obligation and
    price we have to pay for all the benefits of whistleblower
    protection.
        Senator Akaka. I want to thank all of our witnesses. You
    have helped us to really think through the key concerns for
    finalizing this bill. This issue is a priority for me, and I am
    optimistic that finally we will enact protections for
    whistleblowers this year. My colleagues in Congress and I will
    be working closely with the Administration and stakeholders on
    this.
        This hearing record will be open for one week for
    additional statements or questions from other Members of the
    Subcommittee.
        This hearing is adjourned.
        [Whereupon, at 4:36 p.m., the Subcomittee was adjourned.]

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