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AN OPEN LETTER FROM WHISTLEBLOWERS

We the undersigned whistleblowers ask for your help to resurrect one of the most important good government measures approved by Congress in this generation.

Whistleblowers are those who "commit the truth" by exercising free speech rights to challenge bureaucratic betrayals of public trust sustained by secrecy, ranging from vulnerability of nuclear weapons materials to terrorist attack, to garden variety waste, fraud and abuse. Today our rights are at greater risk than at any time in recent memory, despite broad bipartisan support, repeated unanimous congressional mandates, and even ethics regulations that require us to disclose misconduct or else be liable for remaining silent.

That this situation even needs to be addressed is something of an outrage. In 1989 Congress unanimously passed the Whistleblower Protection Act (WPA). For a time it--together with a strengthened version passed, again unanimously, in 1994--was the premier merit system law for government accountability to the taxpayers.

Unfortunately, a series of activist judicial decisions has overturned the intent of Congress in a way that is virtually unprecedented. Today, the WPA no longer provides a safe harbor for whistleblowers due to repeated rulings from a hostile Federal Circuit court with a monopoly on judicial review of the law. Its precedents have created gaping loopholes to Congress' requirement that the law protect "any" lawful disclosure evidencing specific, significant misconduct. The WPA's statutory language, both in its original form and as amended, is explicit, as is the legislative history surrounding both the 1989 and 1994 bills that became law. But this single court has gutted the law.

After the judicial sophistry, "any" means "virtually nothing" in practice. Under their interpretation whistleblowers are not protected if their allegations were made as disclosures to co-workers, supervisors or others in the chain of command, or to those suspected of wrongdoing. Protection is also denied for anyone after the first person to go on record challenging bureaucratic misconduct, or for any whose whistleblowing is connected with their job duties. These loopholes create a real Catch 22, since under Office of Government Ethics regulations employees are held liable for remaining silent observers, if they do not report within the chain of command any fraud, waste or abuse they discover on the job. Conscientious government employees are now left with a "Hobson's Choice" of violating ethics rules, or sacrificing their protection against retaliation.

Whistleblowers rights also are jeopardized in other ways. Recently the Federal Circuit ruled, in White v. Lachance, that whistleblower disclosures do not evidence a "reasonable belief" and deserve protection against harassment, unless they show "irrefragable proof" that overcomes a presumption that the government acts correctly, fairly, in good faith and lawfully. According to the dictionary, "irrefragable" means "incapable of being overthrown, incontestable, incontrovertible or undeniable." Therefore, there is no such thing as a legally-recognized whistleblower when there are two sides to a story, or when there is a cover-up. Instead, all who assert free speech rights are guaranteed that for their troubles, they will receive an official legal endorsement that they deserved to be fired, declared mentally unfit, or to suffer any other form of harassment. Further, the court ordered the Merit Board to gather evidence on anyone who asserts retaliation about why they blew the whistle in the first place, to see if there was a conflict of interest. In other words, we have no chance to defend ourselves, but we are guaranteed to be put under investigation.

These abuses of power are no coincidence. The Federal Circuit's chief judge previously served as deputy chief at the Office of Special Counsel, the government's official whistleblower protection agency, at a time when it tutored managers and taught a course on how to fire whistleblowers without getting caught. The Whistleblower Protection Act was passed in large part because of those abuses. Now this judge is allowed to exercise revenge against the law by turning it into a Trojan horse.

What's more, there is no law that permanently protects the WPA and related good government statutes, such as the Lloyd-Lafollette Act protecting communications with Congress, from non-disclosure rules or similar types of "gag" orders. In other words, a critical aspect of the free flow of information--vital to the workings of our democracy--is at risk each year, hanging as it has for more than a decade on an annual rider to an appropriations bill.

This year a bipartisan group of Senators and Congressmen plan to introduce legislation that would provide crucial protections to whistleblowers by:

We, the undersigned, know these improvements lie at the heart of any realistic effort to protect whistleblowers. We urge all those who are able to make a difference to act now, so that the law stops formally creating martyrs of those with the courage to defend the taxpayers and act as true public servants.



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