[Congressional Record Volume 152, Number 110 (Friday, September 8, 2006)]
[Senate]
[Pages S9250-S9251]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           CONGRESS MUST STRENGTHEN WHISTLEBLOWER PROTECTIONS

  Mr. AKAKA. Mr. President, as a conferee to the fiscal year 2007 
National Defense Authorization Act, I urge my fellow conferees to 
retain the Senate's strong whistleblower protections for federal 
employees. The Senate bill includes an amendment I offered with Senator 
Collins that mirrors our bipartisan measure, S. 494, the Federal 
Employee Protection of Disclosures Act. S. 494 and the amendment have 
strong bipartisan support in the Senate. In the House, Representatives 
Tom Davis and Henry Waxman, the chairman and ranking member of the 
House Government Reform Committee, and Representative Todd Platts, the 
sponsor of companion legislation to S. 494, have asked Representative 
Duncan Hunter, chairman of the House Armed Services Committee, to 
include strong whistleblower protections in the final defense 
authorization bill.
  The Senate action was a significant step forward for Federal 
whistleblowers and the American taxpayer. Congress must assert its 
original intent of the Whistleblower Protection Act, WPA, which 
protects Federal employees who disclose any waste, fraud, and abuse. 
Congress encourages such disclosures, which save lives and taxpayer 
dollars, and has repeatedly said that the courts should not erect 
barriers to disclosures which limit the flow of information from 
Federal employees who may have knowledge of government wrongdoing.
  We have all heard of the brave men and women who have come forward at 
great personal risk to report cases of waste and threats to public 
safety. Examples include: Mr. Richard Foster, Medicare's chief actuary, 
who disclosed to Congress that the actual cost of the Medicare reform 
bill was $156 billion more than what the Bush administration told us. 
He was prohibited by his supervisors from alerting Congress to this 
huge discrepancy prior to the bill's enactment and was threatened with 
firing if he did so; U.S. Border Patrol Agents Mark Hall and Bob 
Lindemann, who disclosed security lapses along our northern border, 
including a lack of staff, equipment, and detention facilities. As a 
result, their supervisors proposed 90-day suspensions and demotions for 
1 year; and Mr. Donald Van Winkle, an air-monitoring technician at the 
Bluegrass Army Depot in Kentucky, who revealed serious operational 
failures with monitors used to detect leaks of chemical warfare agents. 
As a result of this disclosure, Mr. Van Winkle lost his security 
clearance, thus denying him the ability to continue his job. 
Unfortunately, current law does not provide any independent review for 
this type of retaliation.
  This spring, the Supreme Court ruled that the first amendment does 
not protect public sector employees, including Federal workers, from 
retaliation when disclosing government wrongdoing as a part of their 
official duties. Instead, the Court held that protection is left to 
State and Federal whistleblower laws. Unfortunately, Federal 
whistleblower protections have been watered-down by repeated decisions 
by the Federal Circuit Court of Appeals which ignore clear 
congressional intent that disclosures are protected without restriction 
to time, place, form, motive, or context, including disclosures made 
during the ordinary course of an employee's job.
  As a result of various court decisions, honest employees have been 
denied protection from retaliatory practices. In fact, only one federal 
whistleblower has won on the merits of their claim before the Federal 
Circuit in the past 12 years. This egregious lack of employee 
protection has a serious chilling effect on good faith whistleblowing. 
Although President Bush issued a memo in 2001 requiring Federal 
employees to disclose waste, fraud, and abuse, the decisions of the 
Supreme Court and the Federal Circuit Court of Appeals have eroded 
protections for disclosures and placed Federal workers in a no-win 
situation. Congress must take action now to restore the protections 
granted by the WPA.
  My amendment will: clarify congressional intent that Federal 
employees are protected for any disclosure of waste, fraud, or abuse--
including those made as part of an employee's job duties; provide an 
independent determination as to whether the loss or denial of a 
security clearance is retaliation against a whistleblower; and suspend 
the Federal Circuit's sole jurisdiction over Federal employee 
whistleblower cases for 5 years.
  Congress has the responsibility to guarantee strong and meaningful 
protections for Federal whistleblowers.

[[Page S9251]]

Federal employees must know they will not face retaliation when 
disclosing information that protects our national security, safeguards 
the health of our children, or saves taxpayer dollars.
  If Congress is serious about eliminating waste, fraud, and abuse, and 
ensuring that the government for the people and by the people actually 
is working in the best interests of the people, then we must protect 
those who wish to disclose illegal or unethical activities. 
Whistleblowers should not be restrained because they fear retaliation 
for doing what is right.
  Again, I thank my Senate colleagues for supporting this important 
measure, and I urge our House counterparts to join with us in 
strengthening whistleblower protections.

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