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<a href="http://www.nytimes.com/"><img src="http://graphics8.nytimes.com/images/misc/nytlogo153x23.gif" alt="The New York Times" align="left" border="0" hspace="0" vspace="0"></a>
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<div class="">May 27, 2013</div>
<h1>Silencing the Whistle-Blowers</h1>
<h6 class="">By
<span><span>EYAL PRESS</span></span></h6>
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<p>
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 whistle-blowers. </p>
<p>
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. </p>
<p>
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. </p>
<p>
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. </p>
<p>
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. </p>
<p>
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. </p>
<p>
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. </p>
<p>
Almost invariably, those who have spoken out have faced harsh reprisals, a problem addressed by the <a href="http://www.whistleblower.org/blog/42-2012/2380-president-signs-whistleblower-protection-enhancement-act-wpea-">Whistleblower Protection Enhancement Act</a>,
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 community. </p>
<p>
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? </p>
<p>
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. </p>
<p>
Whistle-blower advocacy groups immediately called foul, saying the memo
would effectively eliminate the enforcement of all civil service rights.
</p>
<p>
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. </p>
<p>
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. </p>
<p>
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 Press. </p>
<p>
The administration apparently strongly supports whistle-blower rights —
except when that support collides with its desire to appease the
national security establishment. </p>
<p>
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. </p>
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<p>Eyal Press is the author, most recently, of “Beautiful Souls: Saying
No, Breaking Ranks, and Heeding the Voice of Conscience in Dark Times.” </p> </div>
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<br clear="all"><br>-- <br>Art Deco (Wayne A. Fox)<br><a href="mailto:art.deco.studios@gmail.com" target="_blank">art.deco.studios@gmail.com</a><br><br><img src="http://users.moscow.com/waf/WP%20Fox%2001.jpg"><br>
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