The following NSWBC letter was sent to House Committee on Government Reform: Rep. Tom Davis-R, Chairman, and Rep. Henry Waxman, Ranking Member; House Judiciary Committee: Rep. James Sensenbrenner, Chairman, and Rep. John Conyers, Ranking Member; Senate Judiciary Committee: Senator Arlen Specter, Chairman, and Senator Patrick Leahy, Ranking Member; Senate Homeland Security & Governmental Affairs Committee: Senator Susan Collins, Chairman, and Senator Joseph Lieberman, Ranking Member.

May 18, 2005

Dear Senator/Representative:

On April 28, 2005, we, the National Security Whistleblowers Coalition, came to both the Senate and the House of Representatives to draw your attention to the very serious issue of retaliation against national security whistleblowers, and to the negative consequences of this retaliation to the security and safety of our nation. We explained that we are a group of national security whistleblowers who have come forward to address our nation’s security weaknesses; to inform authorities of security vulnerabilities in our intelligence agencies, at nuclear power plants and weapon facilities, in airports, and at our nation’s borders and ports; to uncover government waste, fraud, abuse, and in some cases criminal conduct. Our reward for doing our job has been to face harassment, loss of our security clearance, demotion, job-loss, and other retaliation.

During these meetings we urged you to take action to implement laws that will provide meaningful protections for whistleblowers. The need for such action is urgent and immediate, our country, our national security, and our interests depend on the performance and strength of our national security agencies. Unless and until strong legislation is enacted those within these agencies who are aware or become aware of serious issues of national security will be fearful of coming forward, and we as a nation will suffer.

We proposed the following simple, effective steps to increase the security of our citizens, recover a respect for government, and provide real protection for whistleblowers.

• Create a cause of action permitting whistleblowers to sue retaliators for money damages in their personal and official capacities and to bring suit against agencies in respondeat superior for failure to rectify misdeeds by employees or provide sufficient safeguards against whistleblower retaliation. Further, judges should be invested with equitable power to reinstate employees to their jobs and enjoin agency malfeasance in whistleblower cases.

1. The government should waive sovereign immunity in those cases when a federal employee retaliates against a whistleblower, who, acting reasonably on information at hand, discloses illegal, fraudulent, or grossly wasteful activity. This cause of action should be available against the retaliator in his or her personal capacity as well as against agencies that encourage, facilitate, or ignore retaliatory activity. The law should recognize that retaliatory action is not action within a federal employee’s scope of employment and that the retaliator will be held personally financially accountable for his or her actions.

2. The federal circuit currently exercises sole jurisdiction over appeals under the Whistleblower Protection Act. This sole venue for whistleblowers has led to a clientelism between the Federal Circuit and the agencies and has produced standards necessary for whistleblowers to prevail under the act that are contrary to the expressed intent of Congress. With a monopoly of power over whistleblower cases, the Federal Circuit has gone off track in its whistleblower decisions and is not subject to the checking tendency of other courts interpreting the same law. For this reason, whistleblowers should be able to file an action in any federal district court. This produces the safeguard of multiple judicial venues interpreting law and so keeps the law’s edge sharp against the grindstone of judicial interpretation.

3. As is found in actions under Title VII to the 1964 Civil Rights Act and other statutes, a substantially prevailing plaintiff should be awarded reasonable attorney’s fees. This serves the government and the people well in several ways. First, it helps insure that only claims with reasonable merit will be brought, since attorneys must gamble their investment of time in the case against the possibility of prevailing at trial. Second, it allows employees subject to retaliation to receive legal assistance without suffering undue financial hardship. Third, such a provision protects a substantial class of people (whistleblowers) from unwarranted discrimination.

4. Any award for damages or attorney’s fees for retaliation found against agencies should be taken from agency funds, not the judgment fund. The changes in law we propose are about accountability at both a personal and agency level. The offending employees and the agencies that condone the offensive behavior should be made to feel the sting of their wrongdoing.

5. Finally, if agencies assert secrecy privileges that defeat evidentiary requirements for making out a prima facie case, or otherwise prevent a trial on the merits, the asserting agency should be found liable and damages assessed. This would help ensure that agencies only assert secrecy privileges when they are absolutely necessary, rather than using those privileges to hide embarrassment or as a further means of retaliation against the employee.

Criminalize retaliation for whistleblowing if the retaliation is undertaken to prevent or punish a whistleblower in reporting illegal activity or illegal efforts to mislead Congress.

1. In our system of law individual crimes are often the result of attempts to cover up an underlying crime. For example, perjury and destruction of evidence are often undertaken to hide criminal activity; we frequently make activity to hide crimes itself a crime. The obvious goal and effect of this criminalization is to thwart cascading criminal activity. The criminalization of retaliation resulting from efforts to hide other crimes is merely an extension of this ancient and well-grounded legal concept. Criminalization of retaliation under these circumstances would deter would-be retaliators from wrongdoing and would make those undeterred by such a law personally responsible for their acts.

The time for action is now.

The methods we have proposed to curb retaliation against whistleblowers are direct and simple, requiring only the political will of you, our elected representative. These methods speak not only to justice for the whistleblower, but to something more intangible, but no less valuable; a restoration of confidence in the efficiency and honesty-of-effort of our government. You have oversight authority, and addressing issues of national security is completely within the scope of your authority and duties, therefore:

We, the National Security Whistleblowers Coalition, formally request that you officially make your position and plan of action known, both to us and to the public. Specifically we request that you state your position with regard to the following questions:

Where do you stand on the requests presented to you by the NSWBC?

What are you planning to do to address the issues and implement the requests presented to you by the NSWBC?

When will you start introducing and implementing measures and actions to address the issues, problems, and requests presented to you by the NSWBC?

Thank you again for your attention to this most urgent issue. The need is crucial; the time for action is now. We are organizing a congressional event for the third week in June, and look forward to receiving your official response by June 7, 2005.

Respectfully,

National Security Whistleblowers Coalition

Sibel D. Edmonds

Director