[Vision2020] Silencing the Whistle-Blowers

Art Deco art.deco.studios at gmail.com
Tue May 28 07:51:23 PDT 2013

  [image: The New York Times] <http://www.nytimes.com/>

May 27, 2013
Silencing the Whistle-Blowers By EYAL PRESS

LAST week Pfc. Bradley Manning returned to court for his final pretrial
hearing in the WikiLeaks case, an appearance that has renewed debate about
how to balance the imperatives of national security against the rights of

But while Private Manning’s ordeal has received exhaustive news coverage,
it may ultimately have a less profound bearing on this tension than a
barely noticed memo quietly released by the Obama administration earlier
this year.

Issued on Jan. 25, the memo instructs the director of national intelligence
and the Office of Personnel Management to establish standards that would
give federal agencies the power to fire employees, without appeal, deemed
ineligible to hold “noncritical sensitive” jobs. It means giving them
immense power to bypass civil service law, which is the foundation for all
whistle-blower rights.

The administration claims that the order will simply enable these agencies
to determine which jobs qualify as “sensitive.” But the proposed rules are
exceptionally vague, defining such jobs as any that could have “a material
adverse impact” on national security — including police, customs and
immigration positions.

If the new rules are put in place, national security could soon be invoked
to deny civil servants like Franz Gayl the right to defend themselves when
subjected to retaliation. Back in 2010, Mr. Gayl was accused of engaging in
a pattern of “intentional misconduct” and suspended from his job. A Marine
Corps adviser who had been deployed to Iraq in 2006, Mr. Gayl claimed he
was being punished for publicly disclosing that Pentagon bureaucrats had
ignored battlefield requests for mine-resistant armored vehicles, at a time
when roadside bombs were killing and maiming soldiers.

Like many whistle-blowers, Mr. Gayl appealed to the Merit System
Protections Board, an independent, quasi-judicial agency created in 1978 to
safeguard the rights of civil servants, which ordered him to be reinstated.

Mr. Gayle isn’t alone. In the past decade, whistle-blowers have exposed
everything from the Bush administration’s efforts to censor reports on
climate change to the Food and Drug Administration’s failure to stop the
sale of unsafe drugs like Vioxx.

Almost invariably, those who have spoken out have faced harsh reprisals, a
problem addressed by the Whistleblower Protection Enhancement
a landmark bill passed by Congress last year that provides compensatory
damages to whistle-blowers who win their cases after an administrative
hearing. President Obama signed the law; he also issued a directive calling
for new whistle-blower protections for employees in the intelligence

How valuable will the president’s steps be if, in the future, government
agencies can simply dismiss insubordinate workers by declaring them
unsuitable for an amorphous pool of “sensitive” jobs without having their
decisions independently reviewed?

It’s not just whistle-blowers who would be affected. To understand the
potential scope of the Jan. 25 memo, consider the case of Berry v. Conyers,
involving two low-level Defense Department employees — one an accounting
technician, the other a commissary stocker — who were suspended and demoted
after their jobs were declared “noncritical sensitive.” The Jan. 25 memo
was issued one day after a federal appeals court announced that it would
review an earlier decision that went against the employees.

Whistle-blower advocacy groups immediately called foul, saying the memo
would effectively eliminate the enforcement of all civil service rights.

In response, the Justice Department inserted a sentence into its brief in
the case, noting that the defendants were not whistle-blowers, and that it
was not seeking to undermine the Whistleblower Protection Enhancement Act.
But the brief did not explain what rights whistle-blowers in “sensitive”
jobs would have if an agency targeted them in the future.

The Obama era has been a strange time for whistle-blowers. Agencies with
investigative powers have become more responsive to tips from
whistle-blowers. Important new laws have been enacted.

Yet during Mr. Obama’s first term, a record number of national security
officials were prosecuted for allegedly leaking classified information to
the press, a zeal that continues today, with aggressive tactics employed to
locate officials who leaked information to Fox News and The Associated

The administration apparently strongly supports whistle-blower rights —
except when that support collides with its desire to appease the national
security establishment.

It is surely too late for Mr. Obama to convince anyone that he intends to
run the most open and transparent administration in history, as he promised
to do at the outset of his first term. But it is not too late for him to
issue a public statement, or another memo, affirming his refusal to
undermine the landmark protections for federal workers he signed into law
last year.

Eyal Press is the author, most recently, of “Beautiful Souls: Saying No,
Breaking Ranks, and Heeding the Voice of Conscience in Dark Times.”

Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
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