Last Friday, the Senate passed, by unanimous consent, S. 372, a bill designed to improve the existing whistleblower protection regime. Senator Daniel Akaka (D-HI) introduced the bill in 2009 to improve statutory protection for government whistleblowers, including national-security employees, in a manner that would satisfy separation-of-powers concerns. An important provision of S. 372–and one particularly worth pointing out to Lawfare readers–is the bill’s creation of the Intelligence Community Whistleblower Protection Board (ICWPB). As described in the Senate Judiciary Committee’s report, the ICWPB would:
hear appeals of intelligence community whistleblower cases. The ICWPB would act in many respects as the [Merit Systems Protection Board] does for whistleblowers outside the intelligence community, and would be located within the Office of the Director for National Intelligence to ensure that it has the expertise and resources needed to appropriately protect highly sensitive information that may be involved in intelligence-community whistleblower cases.
But the current language of the bill is subject to heated debate between advocacy groups. On Monday, the National Whistleblowers Center (NWC) sent a letter to senators and members of the House of Representatives, urging them to amend S.372 to correct what they believe is a “grave mistake” in the bill’s drafting. They write that language in Sec. 101(a) of the bill inserts an exception to the protection mechanism and narrows the extant statute, effectively overturning Drake v. Agency for International Development. Drake is an important decision of the Federal Circuit Court of Appeals that held in favor of the whistleblower, and it was decided on the basis of a provision enacted in 1989 that would be altered by the new bill. (The Federal Circuit is the only court with jurisdiction to hear appeals by whistleblowers in retaliation cases.) Additional coverage of the group’s objections to the bill is here, and its December 13th letter is available here. Here’s an excerpt from the letter:
Although we have other concerns with S. 372, the Congressional reversal of the Drake decision will constitute a tragic setback for taxpayers. It will have significant adverse consequences on the ability of employees to report violations of law and political corruption. We understand that those in high-ranking political offices are reluctant to support whistleblowers, but stripping employees of their current right to blow the whistle on any violation of law is simply intolerable.
The NWC’s letter is in stark contrast with another letter to the House of Representatives, signed by 90 advocacy groups, including the ACLU and Public Citizen, urging passage of S. 372 in its current form:
While S. 372 does not include every reform that our community has sought, it will dramatically improve the status quo—for whistleblowers and taxpayers. Please do not delay in making this whistleblower protection legislation with strong bipartisan support law. If you are serious about responding to American voters, reducing the debt, and ensuring the integrity of government, you will do all you can to make whistleblower reform a reality this year.
It remains to be seen whether this bill will get through the House before the end of the lame-duck session. Rep. Chris Van Hollen (D-MD), a proponent of a related House bill, said in a press release that he would “work to see that it has immediate consideration in the House.”