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Homeland fails to protect whistleblowers

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From the Spring 2003 issue of The News Media & The Law, page 14.

From the Spring 2003 issue of The News Media & The Law, page 14.

By Gil Shochat

In the wake of the September 11 attacks, the U.S. government created or expanded bureaucracies to deal with the new security threat. But critics contend that these agencies have failed to adequately protect whistleblowers who go public.

Whistleblowers in the FBI and the Transportation Security Administration, a new agency formed after the terrorist attacks, which is now responsible for air safety, said they faced reprisals from their employers for pointing out security lapses.

Whistleblowers who could expose problems within these organizations say they have been discouraged from coming forward and exposing safety lapses within what is supposed to be a homeland security safety net.

In 1989, Congress passed the Whistleblower Protection Act, which protected from retaliation federal employees who “reasonably believe” that their disclosure reveals gross mismanagement or a substantial and specific danger to public health or safety.

Since then, federal courts, along with federal agencies that have discretion over security clearances, have stripped away many of the protections that once buffered whistleblowers. This has made agencies such as the FBI and the TSA significantly less effective, according to whistleblower advocates and various U.S. senators, including Daniel Akaka (D-Hawaii) and Chuck Grassley (R-Iowa).

In addition, journalists who rely on whistleblowers to expose flaws within federal bureaucracies have been unable to cover important stories because sources are unwilling to speak for fear of reprisal.

According to Tom Devine, legal director for the Government Accountability Project, a group that advocates stronger protections for whistleblowers, the story of Bogdan Dzakovic is typical.

Dzakovic was a member of a Federal Aviation Administration team that was charged with monitoring and testing airport security

He told Congress and the media about safety lapses. In February 2002, Dzakovic revealed to Congress the ease with which airport security could be breached. It was so bad that his team was “extraordinarily successful in mock-destroying aircraft and killing large numbers of innocent people in . . . simulated attacks,” said Devine, who represents Dzakovic.

After making these allegations, Dzakovic faced hostility from inside the organization and had many of his duties revoked.

After the 1988 Pan Am disaster over Lockerbie, Scotland, Congress passed legislation that directed the FAA to create teams of agents around the country to test airline and airport security on the ground.

The FAA established the Red Team, of which Dzakovic was a member. According to a report by the U.S. Office of Special Counsel, one of the agencies assigned to looking into the matter, the Red Team comprised “a small, elite team of security agents who traveled to major airports . . . to conduct airport security testing — chiefly, covert penetration testing.”

The Red Team was to test airport security by trying to smuggle explosives onto airplanes to find potential security breeches.

Throughout the late 1990s and even after September 11, according to the Special Counsel report, the “Red Team consistently found and reported throughout its existence — high rates of [airport security] test failure, reflecting often stark localized and systemic testing failures.”

The September 11 attacks were the final push for Dzakovic, who reportedly believed that airport security was so poor because his group’s security recommendations were ignored for years. In early 2002, Dzakovic went to the press with his allegations.

“My entire office files are replete with incident after incident of us documenting major problems in aviation security,” Dzakovic told USA Today in February 2002. “There is not one single instance in which action was taken to correct these security loopholes.”

Dzakovic’s allegations helped shed light on the FAA’s failures.

“Aviation Security was seriously compromised” by the FAA’s gross negligence in failing to effectively respond to the Red Team’s recommendations, the Office of Special Counsel found in its report.

The report also “publicly recognize[d] and thank[ed] Mr. Dzakovic for the courage he displayed in coming to the OSC with his disclosures . . . by coming forward, he has brought public attention to issues of great national importance.”

Despite the high profile of his case, Dzakovic was sidelined and given menial duties by the FAA, and later by the TSA.

“They had Bogdan punching holes in training manuals and putting these manuals into binders. He also was working the graveyard shift,” Devine said.

Some academics contend that whistleblowers, such as Dzakovic, are essential to ensure that internal government issues are brought to the public’s attention. They also serve as a key source of information for journalists whose job it is to uncover government fraud and mismanagement.

“Feedback in real time is key,” said C. Fred Alford, a professor in political theory at the University of Maryland and author of “Whistleblowers: Broken Lives and Organizational Power.” “No one has a better sense of how things are really working than those people in the front lines” and they must be protected when they come forward. “Without stronger whistleblower protections, the Department of Homeland Security will be like other bureaucracies. It will keep a good public image until the next disaster happens.”

Unfortunately, federal whistleblower protections are weak, which discourages insiders who are aware of mismanagement from exposing this information. Dzakovic, “a valued senior member of the FAA Red Team [remains] entirely shut out from participation in formation or operation” of the TSA’s new airport safety programs, according to the OSC report.

Journalists lose out

Good stories that rely on insider information have died because whistleblowers were too fearful of reprisals to speak.

“If whistleblowers had stronger protections, it would absolutely make my job easier. Many people want to speak out within the TSA but they are so scared to do it because they are threatened by their superiors if they speak to the press,” said Fred Thys, a radio reporter with WBUR in Boston.

Thys covered the Dzakovic story and his beat includes transportation safety. Thys insists that employees should be able to speak out.

“The public has a right to know when their safety and security are endangered, he said. Insiders “should be able to speak out without fear of reprisals.”

Thys added that many insiders who, like Dzakovic, complained internally about security problems at Logan airport, were “frustrated and completely outraged after September 11.”

Other whistleblowers have faced similar sanctions.When Special Agent John Roberts, a chief of the FBI’s Internal Affairs Department, appeared on CBS’s “60 Minutes,” he was outraged at how little was done to discipline errant employees. Roberts asserted that FBI officials involved in misconduct since September 11 were not reprimanded but were promoted instead.

Roberts told Congress in July 2001 that the FBI exercised a double standard when it came to disciplining employees. Senior managers were barely censured for behavior that would bring stronger penalties for rank-and-file workers. An inspector general’s report later confirmed many of Roberts’ allegations.

Roberts’ boss passed him over for promotion after the show aired. This and other actions left “the appearance of retaliation” against Roberts, according to an inspector general’s report. Roberts, it seems, was not protected from backlash even though his case received intense congressional attention and media coverage from “60 Minutes,” The New York Times and other major newspapers.

“If a person doesn’t fear the kinds of retaliation that have been reported — in this case, he or she — would be more likely to come forward. People are protected by the First Amendment and they should be allowed to speak out. There needs to be a safety net there,” said Kevin Todesco, a spokesman for “60 Minutes,” which aired Roberts’ original accusations and did an extensive follow-up story outlining FBI retaliations against Roberts.

“The hunt for terrorists wasn’t as effective as it could be. There are holes in [America’s] protective net against terrorists,” and whistleblowers are essential in exposing these weaknesses, Todesco added.

Devine and Thys say they fear that if whistleblower protection laws are not given teeth, the Department of Homeland Security will fall into the same pattern of stifling internal dissent as the FAA and the FBI.

Security clearances

As federal law now stands under the Whistleblower Protection Act, federal employees who blow the whistle will almost always lose their security clearances. Without the right to see sensitive information, security workers become lame ducks.

“Once your security clearance is yanked, you’re in Kafka-land. You can’t see classified information and your credibility is thrashed without the mess and fuss of being given your due process rights,” Devine said. When a federal agency can revoke your security clearance arbitrarily in retaliation for going public, homeland security workers don’t have “any reason to go to the media. Doing so is an act of martyrdom.”

Several senators, including Grassley and Akaka, plan to revive a whistleblower bill that would make it more difficult for an agency to revoke someone’s security clearance. Under current law, the revocation of security clearances is not a “prohibited personnel practice” that can be administratively appealed, giving agencies complete discretion. The proposed legislation would force the agency to report to Congress when these clearances are revoked. This, supporters say, will bring sunshine to the process.

Others express doubts that this proposed measure will become law.

“I don’t think that Congress would pass legislation that would keep an agency from taking away a whistleblowers’ security clearance. Congress is very deferential on national security issues,” as are the courts, said Michael Selmi, a professor who teaches employment and civil rights law at George Washington University Law School.

The Bush administration tried to strip whistleblower protections for employees in the Homeland Security Act in November 2002. The administration argued it needed to keep whistleblowers from revealing national security information. The secretary of the Department of Homeland Security should be able to withdraw whistleblower protections, including security clearances. The administration dropped this proposal after several senators attacked it.

“I think there’s a certain amount of arrogance about departments that think they have to be protected against whistleblowers,” Grassley was reported as saying in a June 27 New York Times article.

Since 1978, federal employees who had a “reasonable belief” that serious government misconduct was taking place and came forward with this information were protected from government retaliation, first under the Civil Service Reform Act of 1978 and then under the Whistleblower Protection Act of 1989.

But a 1999 U.S. Court of Appeals (Federal Circuit) decision changed this standard. In White v. Lachance, the court ruled that a whistleblower did not merit protection under the Whistleblower Protection Act, despite the fact that an Air Force employee, backed by his coworkers, reasonably believed that his disclosures exposed gross government mismanagement.

Employees who go public with their allegations must instead have indisputable evidence that the government is acting wrongly. The government is presumed to be acting “correctly, fairly and in good faith,” according to the court.

With this standard, the court made it difficult for whistleblowers to win their cases.

“The odds for winning a case under this onerous standard is like winning the Powerball,” Devine said.

Because the Federal Circuit, which currently has jurisdiction over all whistleblower cases, has been so unfriendly, current Senate draft legislation would allow plaintiffs to take their cases to other appellate courts. The Federal Circuit was set up in 1982 to have exclusive jurisdiction over certain legal issues, such as customs, federal claims, and other administrative topics, including the whistleblower law. The jurisdiction of all other federal appellate courts is defined geographically, not by issue.