[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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        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.
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    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.
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    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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