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91–042 PDF 2004

S. Hrg. 108–414

S. 1358—THE FEDERAL EMPLOYEE PROTECTION

OF DISCLOSURES ACT: AMENDMENTS TO THE

WHISTLEBLOWER PROTECTION ACT

HEARING

BEFORE THE

COMMITTEE ON 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

ON

S. 1358

TO AMEND CHAPTER 23 OF TITLE 5, UNITED STATES CODE, TO CLARIFY 

THE DISCLOSURES OF INFORMATION PROTECTED FROM PROHIBITED 

PERSONNEL PRACTICES, REQUIRE A STATEMENT IN NONDISCLOSURE 

POLICIES, FORMS, AND AGREEMENTS THAT SUCH POLICIES, FORMS, 

AND AGREEMENTS CONFORM WITH CERTAIN DISCLOSURE PROTECTIONS, PROVIDE CERTAIN AUTHORITY FOR THE SPECIAL COUNSEL, 

AND FOR OTHER PURPOSES

NOVEMBER 12, 2003

Printed for the use of the Committee on Governmental Affairs

(

(II)

COMMITTEE ON GOVERNMENTAL AFFAIRS 

SUSAN M. COLLINS, Maine, Chairman 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

ARLEN SPECTER, Pennsylvania 

ROBERT F. BENNETT, Utah 

PETER G. FITZGERALD, Illinois 

JOHN E. SUNUNU, New Hampshire 

RICHARD C. SHELBY, Alabama 

JOSEPH I. LIEBERMAN, Connecticut 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

RICHARD J. DURBIN, Illinois 

THOMAS R. CARPER, Deleware 

MARK DAYTON, Minnesota 

FRANK LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas 

MICHAEL D. BOPP, Staff Director and Chief Counsel 

JENNIFER A. HEMINGWAY, Professional Staff Member 

MICHAEL J. RUSSELL, Staff Director, Financial Management, 

The Budget, and International Security Subcommittee 

JOYCE A. RECHTSCHAFFEN, Minority Staff Director and Counsel 

LAWRENCE B. NOVEY, Minority Counsel 

JENNIFER L. TYREE, Minority Counsel, Financial Management, 

The Budget, and International Security Subcommittee 

AMY B. NEWHOUSE, Chief Clerk 

(III)

C O N T E N T S 

Opening statements: Page 

Senator Fitzgerald ............................................................................................ 1 

Senator Akaka .................................................................................................. 2

Senator Levin .................................................................................................... 4

WITNESSES 

WEDNESDAY, NOVEMBER 12, 2003

Peter Keisler, Assistant Attorney General, Civil Division, U.S. Department 

of Justice ............................................................................................................... 5

Elaine Kaplan, Attorney, Bernabei and Katz, PLLC ............................................ 14 

Thomas Devine, Legal Director, Government Accountability Project ................. 16

Stephen M. Kohn, Chairman, Board of Directors, National Whistleblower 

Center .................................................................................................................... 18

William Bransford, Partner, Shaw, Bransford, Veilleux & Roth, P.C., on behalf of the Senior Executives Association .......................................................... 20

Hon. Charles E. Grassley, a U.S. Senator from the State of Iowa ...................... 27

ALPHABETICAL LIST OF WITNESSES

Bransford, William: 

Testimony .......................................................................................................... 20

Prepared statement .......................................................................................... 160

Devine, Thomas: 

Testimony .......................................................................................................... 16

Prepared statement with attachments ........................................................... 72

Grassley, Hon. Charles E.: 

Testimony .......................................................................................................... 27

Prepared statement .......................................................................................... 167

Kaplan, Elaine: 

Testimony .......................................................................................................... 14

Prepared statement with an attachment ....................................................... 63

Keisler, Peter: 

Testimony .......................................................................................................... 5

Prepared statement with an attachment ....................................................... 31

Kohn, Stephen M.: 

Testimony .......................................................................................................... 18

Prepared statement with attachments ........................................................... 132

APPENDIX

Susanne T. Marshall, Chairman, U.S. Merit Systems Protection Board, prepared statement ................................................................................................... 175

Questions and responses for the Record from: 

Ms. Marshall ..................................................................................................... 182

Mr. Keisler ........................................................................................................ 185

Ms. Kaplan with an attachment ..................................................................... 193

Mr. Devine ........................................................................................................ 199

Mr. Kohn ........................................................................................................... 203

Mr. Bransford ................................................................................................... 215

Copy of S. 1358 ........................................................................................................ 218

(1)

S. 1358—THE FEDERAL EMPLOYEE PROTECTION OF DISCLOSURES ACT: AMENDMENTS 

TO THE WHISTLEBLOWER PROTECTION ACT 

WEDNESDAY, NOVEMBER 12, 2003

U.S. SENATE, 

COMMITTEE ON GOVERNMENTAL AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 3:37 p.m., in room 

SD–342, Dirksen Senate Office Building, Hon. Peter G. Fitzgerald 

presiding. 

Present: Senators Fitzgerald, Levin, and Akaka. 

OPENING STATEMENT OF SENATOR FITZGERALD 

Senator FITZGERALD. The Committee will now come to order. 

Having completed the hearing on the nomination of Scott Bloch for 

the position of Special Counsel, we move now to a related hearing 

to consider legislation, S. 1358, the Federal Employee Protection of 

Disclosures Act. I am chairing this hearing because the bill was referred to and polled out by the Subcommittee on Financial Management, the Budget, and International Security which I Chair. I am 

pleased to recognize the Ranking Member, Senator Akaka, who is 

not only the Ranking Member of the Subcommittee on Financial 

Management but also the lead sponsor of S. 1358 which we will 

consider today. 

The Federal Employee Protection of Disclosures Act was introduced on June 26, 2003, by Senators Akaka, Grassley, Levin, 

Leahy, and Durbin. Senator Dayton joined as a co-sponsor of the 

bill on July 9, 2003. On October 8, 2003, the Subcommittee on Financial Management polled this bill out to the full Governmental 

Affairs Committee for consideration. 

To put this bill in historical context, 1989 was a landmark year 

for whistleblower protection. By a vote of 97 to 0, the Senate 

passed Senator Levin’s Whistleblower Protection Act, which subsequently was signed into law. Among other innovations, the Whistleblower Protection Act introduced a burden of proof allocation 

that was unprecedented, but has since become the benchmark for 

whistleblower protection laws. In essence, the 1989 law eases the 

burden for employees to establish a prima facie case of retaliation 

for whistleblowing activity. And once the employee establishes that 

prima facie case, the burden then shifts to the agency to prove by 

clear and convincing evidence, which is one of the highest evidentiary burdens in civil law, that the agency would have taken 

the same action in the absence of the employee’s whistleblowing. 

2

In 1994, Congress further strengthened whistleblower protections. In 2001, Congress considered legislation similar to the bill 

we consider today but did not take final action before adjournment, 

sine die. S. 1358 would amend Federal whistleblower laws to, 

among other things, clarify the scope of protected disclosures, specifically to address certain court decisions that limit that scope; include actions with respect to security clearances within the scope 

of prohibited personnel practices; include investigations within the 

scope of prohibited personnel practices; require an informative 

statement in non-disclosure policies and agreements; provide independent litigating authority for the Office of Special Counsel; and 

open appeals to all Federal Circuits rather than the current exclusive jurisdiction of the U.S. Court of Appeals for the Federal Circuit. 

We owe much to the many Federal employees who have had the 

courage and fortitude to reveal government waste, fraud, abuse and 

gross fiscal mismanagement. Over the years these whistleblowers 

have saved the taxpayers hundreds of millions of dollars and disclosed endangerment of public safety by officials in the Federal 

Government. It behooves us in Congress to encourage this bravery 

in the Federal workforce. We compliment Senator Grassley, Senator Levin, and Senator Akaka for their consistent and forceful advocacy of efforts to strengthen protections for whistleblowers. 

On the other side of the ledger, we want to remain mindful of 

the challenges in managing the vast Federal workforce. Many 

whistleblowers are heroes. But some who claim that mantle in fact 

dishonor those who are. And for many Federal supervisors who are 

unfairly accused of retaliation, the experience can be damaging. 

Whistleblower challenges and the ensuing litigation can be expensive and time-consuming, diverting valuable agency resources to 

protracted defense. 

Moreover, the easier it becomes to establish a prima facie case 

of whistleblower retaliation, the more likely it becomes that Federal managers will hesitate to take steps to eliminate unproductive 

or counterproductive appointees, impose reasonable disciplinary 

measures, or insist on efficiencies that some workers might challenge as retaliatory. Therefore, in revisiting this important area of 

law, I look forward to hearing specifically from the witnesses how 

their views best promote this delicate balance between encouraging 

good faith whistleblowing on the one hand, and on the other, encouraging proactive and non-risk averse management of the Federal workforce. 

Before I introduce our first witness I would like to turn to our 

Ranking Member, Senator Akaka, for his opening statement. 

OPENING STATEMENT OF SENATOR AKAKA 

Senator AKAKA. Thank you, Mr. Chairman. Thank you very 

much for having this hearing today on S. 1358, the Federal Employee Protection of Disclosures Act, which makes needed changes 

to the Whistleblower Protection Act. I want to add my welcome to 

the Hon. Peter Keisler to our hearing. 

Our legislation would enhance the Federal Government’s efforts 

to eliminate waste, fraud and abuse by strengthening the rights 

and protections available to whistleblowers. This bill is essentially 

3

the same as S. 3070 which the Committee on Governmental Affairs 

favorably reported to the Senate on October 9, 2002. Whistleblowers play a crucial role in alerting Congress and the public to 

serious cases of government wrongdoing and mismanagement. 

Following the events of September 11, courageous Federal employees stepped forward to blow the whistle on significant lapses 

in our efforts to protect this country and its people from terrorism. 

FBI agent Colleen Rowley alerted Congress to serious institutional 

problems at the FBI which impacted the agency’s ability to investigate terrorist activities and prevent terrorism. Border Patrol 

agents Mark Hall and Bob Lindemann alerted us to serious security lapses at our northern border. 

The importance of whistleblowing was highlighted when Time

magazine named Ms. Rowley and two other whistleblowers as its 

Persons of the Year. These brave Americans captured the Nation’s 

attention and earned our respect for risking their careers for the 

public good. 

Although nearly a year has passed since whistleblowers gained 

national attention, we should not forget the contributions they 

make to our everyday lives. Just last week, Senator Fitzgerald and 

I held a hearing on abuses in the mutual funds industry where witnesses testified that it was a whistleblower who first brought attention to this problem. Specifically, Stephen Cutler, Director of Enforcement at the Securities and Exchange Commission said, ‘‘tips 

from whistleblowers are critical to our program.’’

Through passage of the Whistleblower Protection Act in 1989 and 

the subsequent strengthening amendments in 1994, Congress has 

encouraged Federal employees to come forward with information of 

threats to public safety, government waste, fraud, and mismanagement. Congress has passed strong laws to encourage the disclosure 

of critical information, but we also need the courts to interpret the 

law consistent with Congressional intent. Without judicial decisions 

consistent with the intent and spirit of the Whistleblower Protection Act Federal employees will continue to fear reprisal for blowing the whistle. As a result, we fail to protect not only the whistleblower but we fail to protect taxpayers and national security as 

well. 

Our bill is intended to close loopholes which have made it impossible for whistleblowers to come forward without the threat of retaliation. Based on the repeated misinterpretation of Congressional 

intent and the track record of the Federal Circuit, Court of Appeals, it is clear why Federal employees would fear making disclosures evidencing government wrongdoing. Since the 1994 amendments to the WPA, the Federal Circuit, which has sole jurisdiction 

over appeals, has issued only 75 decisions on the merits of the 

whistleblower cases, and in 74 of those cases the whistleblowers 

lost. 

A free society should not fear the truth. Public servants should 

report government mismanagement, threats to national security, or 

specific dangers to public health. People will not speak out if they 

do not feel protected from retaliation. That is why the Whistleblower Protection Act must be strengthened. 

I look forward to hearing from our witnesses and working with 

you, Mr. Chairman, to protect the American public and our Federal 

4

whistleblowers. I also want to add to the list of those Governmental 

Affairs Committee colleagues who are co-sponsors to our bill the 

name of Senator Pryor. Thank you, Mr. Chairman. 

Senator FITZGERALD. Thank you very much, Senator Akaka. Senator Levin, do you wish to proceed? 

OPENING STATEMENT OF SENATOR LEVIN 

Senator LEVIN. Mr. Chairman, thank you, I do have an opening 

statement. First let me begin by thanking you for chairing this 

hearing on a very important bill. I know you are fitting this into 

an incredibly difficult schedule and we are very much in your debt, 

those of us who have spent a lot of time on this subject. I know 

the Chairman himself is very much interested in whistleblowing 

and protecting whistleblowers and doing a lot of other important 

things to make this government work better. 

I do not know if Senator Grassley was here a moment ago or not, 

but I also want to thank him, and obviously Senator Akaka for 

their efforts on behalf of whistleblowers. I hope that we can mark 

up this bill next year. But today’s hearing is essential to that 

markup. 

The Office of Special Counsel who was before us today, at least 

the nominee for that office, is an independent agency. We have got 

to defend that independence. Whistleblowers often reveal embarrassing, sometimes damaging information about people whom they 

work for, or the government agencies where they are employed. 

There can be significant pressures on the Special Counsel to ignore 

retaliation that may have occurred or to pursue cases less vigorously than they ought to be pursued. But the OSC is our first line 

of defense, and it is important that we give the OSC those powers. 

It is also important that we strengthen the whistleblower in a 

number of other ways. That includes the power of the OSC to appeal decisions, and participate in those appeals. There is no reason 

why the OSC should not be allowed to appeal the decision when 

a decision is contrary to the needs of whistleblower protection. 

We have also got to address some of the holdings of the U.S. 

Court of Appeals for the Federal Circuit. Some of these decisions 

have been totally inconsistent with Congressional intent. In the 

case of Lachance vs. White,—and I know our witness from the Justice Department will address this case today—we have an example 

of where the Congress has adopted a reasonable standard of proof 

and the Court of Appeals has taken that standard and turned it 

into an impossible hurdle. In that case, the Lachance case, the 

court imposed an unattainable standard on Federal employee whistleblowers to prove their cases. 

The Federal court ruled in that case that in order for a whistleblower to demonstrate reasonable belief that his disclosure was evidence of gross mismanagement he has to demonstrate with irrefragable proof that the government had acted in violation of the 

law. Now that is an impossible standard. That is undeniable, incontestable, incontrovertible, incapable of being overthrown proof. 

That proof does not exist in any case unless there is a plea of 

guilty. Yet that is the kind of decision that we have gotten from 

the Federal Circuit. 

5

1The prepared statement of Mr. Keisler appears in the Appendix on page 31. 

So our bill is intended to address the powers of the Office of Special Counsel. I had hoped to be here earlier and I could not be because of the Defense bill being on the floor and I had to manage 

that bill, to ask our nominee for that position; whether or not there 

would be support for the bill that Senator Akaka, Senator Grassley, 

I and others have introduced. But in the absence of being able to 

address those issues directly with our nominee we look forward to 

raising those questions with the Justice Department and our other 

witnesses today, and getting answers to those questions from the 

nominee in written form. 

Again, I just want to thank you, Mr. Chairman, for your commitment to so many good government causes. 

Senator FITZGERALD. Thank you, Senator Levin. I would now like 

to introduce our witness on our first panel. The Hon. Peter Keisler 

serves as Assistant Attorney General for the Civil Division in the 

U.S. Department of Justice. He has also served as Principal Deputy 

Associate Attorney General and Acting Associate Attorney General. 

Prior to his appointments at the Justice Department, Mr. Keisler 

was a partner at Sidley, Austin, Brown and Wood in their Washington, DC office. I would note that esteemed law firm is 

headquartered in Chicago. He also served in the Reagan Administration as Associate Counsel to the President and as a law clerk 

to U.S. Supreme Court Justice Anthony Kennedy, as well as Judge 

Robert H. Bork of the U.S. Court of Appeals for the District of Columbia Circuit. 

In the interest of time your full statement will be included in the 

record and we ask that you limit your summary statement to 5 

minutes. Mr. Keisler, you may proceed with your opening statement. 

TESTIMONY OF PETER KEISLER,1 ASSISTANT ATTORNEY 

GENERAL, CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE 

Mr. KEISLER. Thank you very much, Mr. Chairman and Members 

of the Committee. I very much appreciate the opportunity to appear before you today and to include my full statement in the 

record. I will just briefly summarize our principal concerns with S. 

1358. 

But let me first begin by emphasizing that the Department is 

strongly committed to the protection of whistleblowers who bring to 

light evidence of fraud, abuse, mismanagement, and violations of 

the law in the government. The current law though, we believe, 

adequately protects the interest of whistleblowers and we think the 

costs associated with this bill, both in terms of its impact on important national security interests and the inefficiencies it could create 

in the management of the Federal workforce outweigh the incremental increase in protections that the bill might afford. 

We are particularly concerned about the provisions of the bill 

that relate to security clearances and classified information. For example, the bill would permit the Merit Systems Protection Board 

and the Federal Circuit to review security clearance determinations. Review by those non-expert bodies would, we believe, have 

a substantial chilling effect upon the decisionmaking process of seVerDate 0ct 09 2002 14:59 Apr 19, 2004 Jkt 091042 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 C:\DOCS\91042.TXT SAFFAIRS PsN: PHOGAN
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curity professionals. If a security professional knows that his or her 

decision will be second-guessed by the MSPB and that any reverse 

decision may subject his agency to substantial damages, that possibility will inevitably be considered in the security clearance decision, even though the only appropriate and permissible standard 

that should be considered is whether the clearance is clearly consistent with national security. 

Beyond that objection, we do not believe the amendment in that 

respect is necessary. Currently, Executive Order 12968 requires all 

agencies to establish an internal review board to consider appeals 

of security revocations. 

We have one at the Department of Justice which is fairly typical. 

Background investigations are reviewed by career adjudicators on 

the Department’s security staff and any recommendation to deny 

or revoke a security clearance is reviewed personally by the director of that staff, also a career employee of the Department. If the 

director’s decision is to deny or revoke a clearance, then a comprehensive written statement of reasons must be provided to the 

employee or the applicant, who may also request access to any documents relied upon, including the investigative file. The employee 

may then request reconsideration by the director and is given a 

statement of reasons and the result of that reconsideration as well. 

If the employee continues to object, he may then be given an opportunity to appeal to a high-level panel appointed by the Attorney 

General and comprised of three members, two of whom are from 

outside the security field. The members of the Department’s panel 

are all high-ranking career employees. The employee may be represented by counsel, there is a transcript of the hearing, and the 

final decision is in writing and final. 

We believe that by providing the employee with a written explanation of the reasons for a clearance denial and with an appeal to 

a high-level panel that had no role in the initial decision we have 

provided a process that is fundamentally fair to the employee and 

that provides sufficient procedures to ensure that a security clearance decision is not based upon unlawful reprisal. 

The bill would also allow individuals to make unauthorized disclosures of classified information to members of Congress and their 

staff who possess security clearances. We oppose these provisions 

because we believe they would interfere with the Executive 

Branch’s constitutional responsibility to control and protect information relating to national security. And more specifically, the determination which individuals have a need to know specific types 

of classified information. 

Executive Branch agencies frequently provide classified information to the Congressional Intelligence Committees in fulfilling our 

obligations to keep them fully informed about intelligence matters 

within their purview. We also provide classified information from 

time to time to other committees in response to requests from their 

chairmen in the context of Congressional oversight regarding Executive Branch operations. The decisions about the provision of such 

information are made within the Executive Branch based upon assessments about whether the particular Congressional entity has a 

need to know the classified information, which remains an imporVerDate 0ct 09 2002 14:59 Apr 19, 2004 Jkt 091042 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 C:\DOCS\91042.TXT SAFFAIRS PsN: PHOGAN
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tant standard in avoiding unnecessary disclosures that would not 

be consistent with our national security interests. 

We believe the Executive Branch should retain the responsibility 

to determine the dissemination of classified information, both within the branch and to the Legislative Branch. This bill would encourage the disclosure of classified information outside of that carefully considered process. 

We also object to the provision which would prohibit the consideration of time, place, form, motive, context, or prior disclosure in 

considering whether an individual made a protected disclosure 

under the law. The context in which an alleged disclosure is made 

is essential to determining whether the statement made by an employee is the type of statement that falls within a common sense 

definition of disclosure. 

By prohibiting the consideration of context, the bill transforms 

any statement that potentially suggests a disagreement about law 

or policy into a protected disclosure. Thus, because employees make 

those types of statements on a regular basis, the bill would potentially allow almost any Federal employee to claim whistleblower 

status in the face of legitimate personnel actions. This protection, 

which would then require management to justify its action by the 

much higher clear and convincing standard, would create costly inefficiencies in the operation of the Federal workforce and also 

would detrimentally impact the morale of good workers. 

The bill would provide the Special Counsel independent litigating 

authority and authorize him to appeal decisions of the MSPB and 

whistleblower cases, and represent himself before the Federal Circuit. We object to this provision, as we generally do to any extension of independent litigating authority beyond the Department of 

Justice for two primary reasons. First, it could result in the undesirable situation of two different parts of the government litigating 

against each other and taking different positions in court. The government, we believe, should speak with one voice. 

Second, it undermines the centralized control the Department 

maintains over litigation involving the government in the Federal 

courts. Centralized control furthers a number of important policy 

goals, including the presentation of uniform positions on significant 

legal issues, the objective litigation of cases by attorneys unaffected 

by concerns of a single agency that may be inimicable to the interest of the government as a whole, and the facilitation of presidential supervision over Executive Branch policies implicated in 

government litigation. 

Finally, we object to the proposal to permit review of MSPB decisions by the regional Circuit Courts of Appeals rather than the currently exclusive review by the Federal Circuit. Review by the regional circuits would result in a fractured personnel system causing 

confusion among both the employing agencies and the employees 

about their respective rights and responsibilities. And it would inevitably require the Supreme Court to intervene more in Federal 

personnel matters to resolve inconsistencies among the circuits. 

I thank the Committee for the opportunity to testify and I am 

pleased to answer any questions you might have. 

Senator FITZGERALD. Thank you, Mr. Keisler. I want to ask you 

right off the bat what you think about what Senator Levin said in 

8

his opening statement. He noted, I think it was the Lachance vs. 

White case, that imposed the irrefragable proof standard. Is that 

not pretty much an impossible level of proof for the whistleblower? 

Mr. KEISLER. Pretty much, Mr. Chairman. I am not here to defend that. My understanding is that discussion in Lachance was 

dicta. That the MSPB when it next considered the issue said essentially, the Federal Circuit cannot have meant what it said. And no 

case that I am aware of, either before the MSPB or the Federal 

Circuit since then has actually applied the irrefragable proof standard. 

I would certainly agree that it would not be appropriate. We 

think the standard should be what it normally is in a case like 

this, which is proof by a preponderance of the evidence. 

Senator FITZGERALD. Are there any aspects of the current whistleblower law that you think should be improved, or is it your contention that the current law adequately protects whistleblowers? 

Mr. KEISLER. Our feeling is that the current law provides adequate protection. We are always open to considering proposals that 

this Committee or others in Congress might have about ways in 

which it could be improved, but we generally think the current law 

strikes a sufficient balance. 

Senator FITZGERALD. Is it your understanding that an employee 

who discloses information that is already known is not a protected 

whistleblower? 

Mr. KEISLER. That is the holding of the Federal Circuit, I think 

in the Wissen case, that a disclosure is something that was not previously laid bare, something that is being revealed for the first 

time. So that one of the tests that has been applied to determine 

whether a disclosure provides protection under the statute is 

whether the individual making the disclosure is informing of something new or instead reporting about something that is already 

known. Only in the former case, I think, does it get that protection 

under existing law. 

Senator FITZGERALD. Could you describe for this Committee more 

precisely what you mean by the burden you fear will be imposed 

on management of the Federal workforce? What are some of the financial, managerial, and human costs involved in participating in 

these whistleblower applications and adjudications? 

Mr. KEISLER. Of course, any time someone is accused of acting 

improperly, that imposes a personal cost on that person and a financial cost on either that person or the government in litigating 

it. That does not mean that there should not be an opportunity to 

bring these charges. There are very important interests that are 

implicated, as each Member of the Committee has said. But we 

think it is important that the law strike a balance between the 

needs of managers in the workplace to take appropriate personnel 

actions when adverse decisions need to be made, and the important 

need to protect legitimate whistleblowers who are bringing to light 

information about fraud, abuse, mismanagement, or violations of 

the law. 

Senator FITZGERALD. I listened with great interest to your concerns about imposing the machinery of whistleblower protection 

into the sensitive arena of security clearances. But I wonder if I 

could ask you, on the other side of the ledger, what meaningful reVerDate 0ct 09 2002 14:59 Apr 19, 2004 Jkt 091042 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 C:\DOCS\91042.TXT SAFFAIRS PsN: PHOGAN
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course is there for Federal employees who are subject to retaliation 

by revocation of their security clearance? 

Mr. KEISLER. Every department and agency under the executive 

order is required to have its own independent, internal review process. When I say independent, I mean independent of the initial decisionmaker who will first decide to revoke or deny a security clearance. 

We have one in the Department of Justice. The three members 

of that board are at the deputy assistant attorney general level. I 

can tell you, it is a robust process. It is not a rubber stamp. It frequently results in decisions being reversed. That panel is empowered to consider all evidence, to look at the entire totality of the 

case that the employee or applicant presents. In that respect, it 

functions much more broadly than any court or administrative 

agency would be able to do because their general practice would be 

to give deference to the administrative decision in the first instance. This board gives no deference to the initial decision to deny 

or revoke a security when it is asked to review it. It looks at it 

afresh, and as I said, frequently makes a decision to reverse the 

decision. 

The employee or applicant has all aspects of due process before 

that board: The right to be represented by counsel, the right to 

present testimony, a written record is created, and a statement of 

reasons is created. So that has been our effort to make sure that, 

while we have not supported outside review of clearance decisions, 

that there is a measure of due process and second look given to 

those decisions because we recognize they are important. They are 

important not only for the government but they are important for 

the employee or applicant, in many cases whose job may require 

a security clearance. 

Senator FITZGERALD. Senator Akaka. 

Senator AKAKA. Thank you very much, Mr. Chairman. 

Mr. Keisler, the Department opposes the provision in S. 1358 

granting MSPB the right to review secret clearances relating to retaliation for a protected activity. I understand this opposition is in 

part to the current internal review process for security clearance 

matters. What is the track record for the internal security clearance review process in restoring clearances to whistleblowers? 

Mr. KEISLER. I can only speak generally. I do not have statistics 

on that, and even my general knowledge is limited to what we have 

done in the Department of Justice. But I have been told by the security officials there that this is a process which quite frequently 

results in reversals of initial decisions to deny or revoke clearances. 

That it is a meaningful process and one in which the look is genuinely a fresh one. 

Senator AKAKA. Thank you. The Department objects to the provision clarifying that employees may make disclosures of classified 

information to Congress because DOJ believes an employee would 

have the unilateral authority to decide who should receive classified information and when. 

However, the WPA already provides that employees can make 

classified disclosures to the Special Counsel and an agency’s inspector general. Furthermore, the law states that nothing in the WPA 

10

shall be construed to authorize the taking of any personnel actions 

against any employee who discloses information to Congress. 

In light of these existing statutory provisions on the disclosure 

of classified information, can you elaborate on the Department’s objection to this provision? 

Mr. KEISLER. Certainly, Senator, and thank you for giving me 

that opportunity. First of all, I would like to be clear about what 

our position is and is not. We do believe that as a general matter, 

government employees have the right to go to Members of Congress 

and their staff with information about misconduct or legal violations without getting prior approval from the Executive Branch. 

The exceptions, we believe, to that general principle are in those 

instances in which that kind of action would undermine the President’s constitutionally-based authority to carry out his particular 

responsibilities. 

Congress’ oversight is constitutionally based. The President has 

some constitutionally-based powers and sometimes there is tension 

between the two. The category in which this most often arises, of 

course, is the President’s constitutionally-based power that the Supreme Court recognized, to control access to national security information. 

Our belief is that when there is a tension between the President’s constitutional powers and Congress’ constitutional need and 

power to conduct oversight, that is something that should be 

worked out through the committees, through the oversight process, 

but not that each individual employee with access to classified information should be able to make the determination for himself or 

herself that a disclosure should be made. 

Senator AKAKA. The Department of Justice has expressed extremely strong opposition to this legislation. The Department also 

opposed the 1989 Whistleblower Protection Act and the 1994 

amendments. What changes would you recommend in order to gain 

the Department’s support? 

Mr. KEISLER. I have not come here, Senator, with proposals to 

change the law. As I said, I think we do believe that the current 

law strikes a good balance, but that is always subject to further 

proposals and consultations. I do not want anything I just said to 

suggest that we would not be happy to work with the Committee 

to further develop ideas and consult. 

Senator AKAKA. Thank you very much for your responses. 

Thank you, Mr. Chairman. 

Senator FITZGERALD. Senator Levin. 

Senator LEVIN. Thank you. In answer to Senator Akaka’s question you indicated that the internal appeal process relative to the 

loss of security clearance has produced reversals. 

Mr. KEISLER. That is what I am told, Senator. 

Senator LEVIN. But you did not know what percentage of cases 

or how often. Could you do that bit of research for us and give the 

Committee those numbers? 

Mr. KEISLER. I will see what I can find out. 

Senator LEVIN. The question of whether or not Members of Congress ought to be able to receive classified information from whistleblowers you say should not be the unilateral decision of a whistleblower. Should Members of Congress be allowed to make a deciVerDate 0ct 09 2002 14:59 Apr 19, 2004 Jkt 091042 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 C:\DOCS\91042.TXT SAFFAIRS PsN: PHOGAN
11

sion—if a whistleblower comes to us and we have clearance obviously, a whistleblower has clearance and they say, this information 

is classified and I cannot give it to you under the current law, but 

if you request it, that would be different I gather then in your eyes, 

would it? 

Mr. KEISLER. I think that would be a protected disclosure by the 

employee. 

Senator LEVIN. So what the employees need to do then, and we 

ought to make it clear in the law, is that if the Member of Congress, after being informed that the employee has classified information but has not disclosed what it is, then says, yes, I would like 

to receive that information, there should be protection for the whistleblower? 

Mr. KEISLER. Yes, and I think that is protected under the law as 

it is written now because any disclosure to anyone, as long as it 

is not a disclosure of the information that is required by law or executive order to be secret, is a protected disclosure. So if an employee went to you, Senator, or your staff and said, I know something very important. I cannot tell you the contents of it because 

it is classified, but you should pursue this; someone yesterday gave 

you misleading testimony or whatever, that would not——

Senator LEVIN. No, not quite that. Not, you should pursue this. 

But if you ask me what that information is, than I can respond to 

your request. Is that protected? 

Mr. KEISLER. I am sorry, I did not fully understand your question. My conception was they would come to you and say, there is 

something you need to pursue and you would come demand it from 

us. No, I do not think it is currently protected under the law. 

Senator LEVIN. My question is, should we not have the right, as 

cleared, elected officials to seek classified information from anybody 

who has received that information properly? 

Mr. KEISLER. I think that would trench upon the President’s authority to make the need-to-know determination. Because, as you 

know, the decision about whether information can be disclosed to 

any particular individual inside the Executive Branch or anywhere 

is a combination of, is the person cleared and is there a need to 

know. We regard the President’s authority in this regard to encompass both categories of decision, so under our view of his constitutional role we would think that should proceed through other channels. 

Senator LEVIN. You want to give the President that exclusive 

right to decide whether or not a Member of Congress should be allowed to seek classified information from a member of the Executive Branch? That is really an extreme position, I will tell you, because we ask questions all the time on our committees of members 

of the Executive Branch which require them to give us classified 

information, and obviously in a setting which is cleared. We do that 

all the time. 

The position that you are taking is that the President ought to 

have a right to say, sorry, that person is in the Executive Branch. 

We are not going to respond to the question from the Member of 

Congress, or in my hypothetical, from the member of Congress who 

asked the whistleblower, what is that information. It is a very extreme position. 

12

Mr. KEISLER. I think when you use the word exclusive, Senator, 

I think in some——

Senator LEVIN. I think you used the word exclusive. 

Mr. KEISLER. Then when I use the word exclusive, I may not 

have fully captured the reality of the way things would work. I 

would presume in that circumstance there would be a back and 

forth between this branch and the Executive Branch, and there 

would be a need for negotiation and accommodation. But our position is that when the Executive Branch is engaged in that kind of 

process it should be the President or his delegees who do the negotiating, who set the terms on that side of the divide and that lead 

to the accommodation, not that each employee is authorized to 

make the disclosure. 

Senator LEVIN. Upon request. 

Mr. KEISLER. Upon request, yes. 

Senator LEVIN. So that when someone comes in front of us from 

the Department of Defense over at the Armed Services Committee 

and we ask that person for information which is classified, you are 

saying that person does not have the responsibility and does not 

have the obligation to respond to the question until they clear that 

with whoever these powers are in the Executive Branch that you 

want all information that is classified cleared with before it is 

shared with Congress. That seems to be what you are saying. 

Mr. KEISLER. You are obviously so much more familiar with the 

way these interchanges work than I am, Senator, but my assumption would be that when someone comes before you they have a 

sense in advance of the parameters of what they are permitted to 

disclose. 

Senator LEVIN. No, frequently that is not the case. They do not 

always know the questions that we are going to ask in advance. 

Mr. KEISLER. If a witness were in genuine doubt as to whether 

a piece of—whether his or her higher-ups, the ones with authority, 

would approve the disclosure of the information and that witness 

did not know whether that would be approved, I would take the position that the prudent thing would be for them to go back and find 

out whether that is appropriate. 

Senator LEVIN. That is a very extreme position. When Congress 

asks questions, in a proper setting that is cleared, from someone 

who has that information, whether it is classified or not, we have 

a right to that information. We do not expect to, nor should we be 

put in a position where that person says, gee, I do not know whether I want to answer that question because I did not expect you to 

ask that question, and I have to go back to my superiors to see 

whether or not I can answer the question. That is not acceptable, 

and I do not think any Executive Branch has taken that position 

to date that I know of, and I do not believe any court would sustain 

that. 

Congress has a right to information from the Executive Branch 

unless there is a privilege, an executive privilege, for instance, 

which is exercised. But the fact that it is classified, when we are 

cleared to receive classified information, is not a reason that can 

be sustained. So I think your position on this is really an extreme 

position. The red light is on. I only had one more question but I 

do not want to——

13

Senator FITZGERALD. You can go ahead, continue if you wish. 

Senator LEVIN. On the irrefragable proof, and I was glad to hear 

your answer on that question, I take it then that the Justice Department would support that part of the bill which would eliminate 

that from anyone’s mind as being the proper standard. 

The reason it is important is because when it comes to settling 

these cases, if the whistleblower has to face the prospect of an appeal if he pursues his claim, to a court which has adopted that 

standard, it is going to make settlement much more—it is not going 

to be as good a settlement, obviously, for the whistleblower if they 

think that is the standard which will be applied at the end of the 

line. 

My question though specifically is, will the Justice Department 

support at least that portion of the bill which puts into law that 

standard which you adopted, the preponderance of the evidence 

standard? 

Mr. KEISLER. I am not certain that the portion of the bill that 

seeks to reverse the irrefragable proof standard actually installs a 

preponderance of the evidence standard. I think it may say something more like, the individual need only have substantial evidence, which would be a weaker standard than preponderance of 

the evidence. But in terms of our position about what it should be, 

we think it should be preponderance of the evidence. We do not 

think it should be irrefragable proof. 

Senator LEVIN. In any event, we can agree it should not be irrefragable. 

Mr. KEISLER. It should not be irrefragable proof. I did not even 

know what the word irrefragable meant before I read that decision. 

Senator LEVIN. I looked it up and it is quite an extraordinary 

word. 

Thank you, Mr. Chairman. 

Senator FITZGERALD. Thank you, Senator Levin. 

Mr. Keisler, thank you very much for appearing before us. We 

appreciate you coming over to the Hill to testify. If there are no 

further questions we will proceed to panel two. 

I would like to introduce our panelists on the second panel. 

Elaine Kaplan currently is practicing law in the firm of Bernabei 

& Katz in Washington, DC. Ms. Kaplan was nominated by President Clinton in 1997 and confirmed by the Senate in April 1998 to 

be Special Counsel of the Office of Special Counsel. During her tenure she was credited for implementing many new programs to improve the operations of the Office of Special Counsel and the interagency process regarding personnel practices. Prior to her role as 

Special Counsel Ms. Kaplan served as Deputy General Counsel of 

the National Treasury Employees Union where she represented the 

interests of union members in the areas of labor and administrative law as well as racial and sexual discrimination. 

Thomas Devine serves as legal director of the Government Accountability Project, a non-profit organization dedicated to promoting government and corporate accountability by advancing free 

speech and ethical conduct in the workplace and defending the 

rights of whistleblowers. Mr. Devine has published a number of articles regarding whistleblower protections and has worked for over 

14

1The prepared statement of Ms. Kaplan with an attachment appears in the Appendix on page 

63. 

20 years to develop and promote policies and laws pertaining to 

whistleblowers. 

Stephen M. Kohn serves as Chairman at the National Whistleblower Center, a non-profit advocacy center dedicated to working 

with whistleblowers. Mr. Kohn has litigated whistleblower cases for 

a number of years, including the successful lawsuit against the Department of Justice, the FBI, and the Clinton Administration that 

compelled implementation of regulations to enforce whistleblower 

protections for FBI employees. 

William Bransford is General Counsel to the Senior Executives 

Association and a partner in the law firm of Shaw, Bransford, 

Veilleux & Roth where he has practiced since 1983. The Senior Executives Association was founded in 1980 as a non-profit corporation and it represents more than 7,000 career Federal executives. 

In his practice, Mr. Bransford represents Federal executives, managers and employees in cases regarding personnel and employment 

practices before the U.S. District Courts, the Merit Systems Protection Board, the Equal Employment Opportunity Commission, the 

Office of Special Counsel, and with offices that adjudicate security 

clearances. 

Thank you all for being here. In the interest of time, your full 

statements will be included in the record, and we ask that you 

limit your summary statement to 5 minutes. We are going to strictly enforce the 5-minute limit. Thank you. Ms. Kaplan. 

TESTIMONY OF ELAINE KAPLAN,1 ATTORNEY, BERNABEI AND 

KATZ, PLLC 

Ms. KAPLAN. Thank you, Mr. Chairman. Good afternoon. I appreciate being invited by the Committee to offer my perspectives on 

S. 1358. My testimony is based on my experience as the head of 

the Office of Special Counsel as well as an attorney in private practice who represents whistleblowers in both the private and public 

sector. 

In July 2001, as Special Counsel I testified in favor of S. 995, 

which was an earlier effort to strengthen and improve the Whistleblower Protection Act. There have been two significant developments since the Committee considered S. 995 which I think are 

worth mentioning. First, after the terrorist attacks of September 

11, our national focus shifted dramatically. We all have heightened 

concerns and a greater sensitivity to issues of national security. 

Second, since the Committee considered S. 995, the Nation’s markets have been rocked by a series of corporate scandals and in the 

aftermath of these scandals Congress enacted the Sarbanes-Oxley 

Act which extends whistleblower protection to employees of publicly traded corporations. 

I mentioned the terrorist attacks of September 11 and the corporate scandals that led to the passage of Sarbanes-Oxley to make 

a point about DOJ’s opposition to S. 1358. Both as Special Counsel 

and for many years before as an attorney practicing in the area of 

Federal sector employment it has been my experience that whenever amendments are proposed to strengthen the Whistleblower 

15

Protection Act, the Department of Justice opposes them. It usually 

uses the same objection, similar to the ones that we heard today, 

which are that strengthening the law will inhibit managers from 

taking legitimate actions against poor performers or bad employees. It also says that making changes to the act’s enforcement 

scheme, giving the Special Counsel greater authority will undermine what it calls uniform application of the law and interfere with 

DOJ’s control over litigation in the Federal courts. 

I think that this reflexive opposition to this bill is really bad public policy, especially in a post-September 11 world. Today more 

than ever our emphasis should be not only on protecting whistleblowers but on encouraging them to come forward. That was certainly what Congress concluded when it extended whistleblower 

protection to corporate employees. It certainly is no less important 

that Federal employees who are sometimes on the front lines of the 

war against terror feel safe reporting security risks as it is that 

employees of Fortune 500 companies are protected when disclosing 

account scandals. 

Now DOJ is frequently fixated on the notion that enhancing protection for Federal employees and closing loopholes in the act will 

protect bad employees. As the head of OSC I frequently heard this 

trotted out and it is sort of an old canard, that the law protects bad 

employees, or that employees cynically invoke the act’s protection 

in order to make themselves immune from legitimate personnel actions. This is like an urban legend in my opinion. The fact is that 

weak claims, most of the them are closed—all weak claims are 

closed in the administrative process. The majority of cases filed 

with the Office of Special Counsel because the law is clear and 

nothing in this law changes the fact that it is not illegal to take 

appropriate action against bad employees even if they are whistleblowers. 

Now let me give you a couple of examples of why this law is important and why existing law has these common sense lapses in it. 

I think it makes good sense to prevent agency officials from retaliating against an employee who is making a protected disclosure, 

even if they are doing it as part of their duties and through their 

chain of command. In fact I think it is counterintuitive to protect 

people only when they go outside their chain of command. One 

would think that it would be in management’s interest to encourage people to stay inside the chain of command rather than going, 

for example, to the Washington Post or the New York Times.

So let me give you an example of how this would work. Let us 

say there is a security screener at National Airport who works for 

the Transportation Security Administration and they notice that 

the x-ray machines are malfunctioning on a regular basis. The 

screener suspects that because of these malfunctions a number of 

passengers may be permitted to board airlines without being 

screened. It is part of his job to report these malfunctions to his 

supervisor. 

So he goes to his supervisor and he tells them about the malfunctioning machines and his supervisor says to him, do not write up 

a report. Just go back to work. It is a lot of extra paperwork. And 

the supervisor does not want it to get out that the screening maVerDate 0ct 09 2002 14:59 Apr 19, 2004 Jkt 091042 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 C:\DOCS\91042.TXT SAFFAIRS PsN: PHOGAN
16

1The prepared statement of Mr. Devine with attachments appears in the Appendix on page 

72. 

chines at National Airport are not working. He says, do not worry 

about it. I will take care of it. We will get the problem fixed. 

One week later the employee comes back again, the problem has 

not been fixed. This time he tells his supervisor, if nothing is done, 

he is going to report the supervisor, his inaction, up the chain of 

command or maybe to the IG, and the supervisor fires the employee. 

Now under current law this employee has no recourse. Because 

he has made his disclosure as part of his regular job duties he is 

not protected by the anti-retaliation provisions of the Whistleblower Protection Act. In fact a security screener at TSA, this employee does not even have normal adverse action protections that 

other employees have. 

The same scenario could play out in any number of contexts: An 

inspector at the Nuclear Regulatory Commission who suffers retaliation when he recommends that a power plant’s license be revoked 

for violating safety regulations; an auditor who is denied a promotion because he found improprieties in a Federal grant program; 

or an investigator in an IG’s office who is geographically reassigned 

because he has reported misconduct by a high-level agency official. 

I see that my time is up and I will refer you back to my written 

statement. But I do think that it is really important for the Committee to consider this balance between broadening the rights for 

whistleblowers and management prerogatives to understand that is 

really in management’s interest to have broad protection for whistleblowers because it is in management’s interest to understand 

what is going on in the work site and to created an open environment. Thank you. 

Senator FITZGERALD. Thank you, Ms. Kaplan. Mr. Devine. 

TESTIMONY OF THOMAS DEVINE,1 LEGAL DIRECTOR, 

GOVERNMENT ACCOUNTABILITY PROJECT 

Mr. DEVINE. Thank you for requesting this testimony. GAP and 

a bipartisan, trans-ideological coalition of over 100 citizens and 

good government organizations strongly support this Committee’s 

efforts to put the protection back in the Whistleblower Protection 

Act. S. 1358 is a modest good government bill that restores legitimacy for a public policy mandate that Congress has passed unanimously three times. It does not expand the intended scope of any 

prior Congressional actions. Most accurately, this bill could be 

called the Whistleblower Protection Restoration Act. 

I serve as the Legal Director of the Government Accountability 

Project and for 25 years we have been helping whistleblowers. I 

would like to begin by seconding Ms. Kaplan’s closing remark, that 

this law will help managers as much as it will help anyone else. 

Whistleblower protection within an organization, if we close the 

loopholes that are barring it currently, serves management’s right 

to know. The way the current law has been skewed there is only 

a potential to serve Congress or the public’s right to know, and 

managers are liable to be the last ones to learn about problems because of the way the statute has been twisted. 

17

In 25 years we could not avoid learning some lessons about 

which reforms work in practice and which are illusory. S. 1358 is 

the real thing. If enacted, the Whistleblower Protection Act will 

again be a genuine metal shield that gives a fighting chance for 

those who rely on it to defend themselves. If we keep the status 

quo, it is going to be a cardboard shield behind which anyone relying on it is sure to die professionally. It also will continue to be a 

magnet for cynicism. 

This bill does basically two things. It restores the boundaries 

that Congress has already set, and second, it gives structural reform so that Congress will not have to pass this law a fifth time, 

or more. Enough is enough. 

I think we should briefly review why Congress keeps reaffirming 

a unanimous mandate for whistleblower rights. It is because they 

are the human factor which is the Achilles heel of bureaucratic corruption. They warn us of preventable disasters before we are limited to damage control, or picking up the pieces. They are society’s 

modern Paul Reveres. Since the September 11 tragedy, increasingly they have been playing an invaluable role. 

As the news media increasingly has recognized, whistleblowers 

on national security breakdowns have been the only reliable, trustworthy lifeline for Congress and the public to learn about terrorist 

threats which were caused by bureaucratic negligence and sustained by abuses of secrecy. Their message has been consistent: Too 

often the bureaucracy has been satisfied to maintain the appearance of security rather than implementing well-known solutions to 

long-confirmed and festering problems. We cannot have those 

voices silenced if we are going to prevent another tragedy in our 

Nation. 

My testimony gives numerous examples of whistleblowers whose 

warnings have been vindicated in retrospect but who are still isolated from their areas of expertise, relegated to updating the telephone books at their agencies, or serving as travel agents for people on foreign assignments, despite the fact that they have gone to 

the mat and risked their careers disclosing still unsolved problems 

that sustain our vulnerability to terrorism. Our Nation does not 

have the luxury to waste these talents. 

Let me give a brief rebuttal of the Justice Department’s specific 

arguments. On security clearances, they stated that since the Merit 

Board is not an expert body this would chill the professionals. The 

Merit Board would not be acting on anything outside of their expertise, which is determining whether there have been merit system violations like retaliation. They would not be touching the 

technical issues that they do not have expertise for. 

The gentleman from the Justice Department said, we have these 

review boards and they work great at Justice. Justice is not any 

institutional guarantee of due process for the rest of the Executive 

Branch. Let me share with you some of the results from the other 

agencies. There is everywhere an institutional conflict of interest. 

The body that is acting as judge and jury normally would be the 

adverse party in the case. That is not a healthy premise. There are 

no timeframes for these decisions. Whistleblowers are routinely 

forced to wait over 3 years before they are told what they have 

been accused of. The gentleman did not talk about timeframes at 

18

1The prepared statement of Mr. Kohn with attachments appears in the Appendix on page 132. 

Justice. One of their DOJ whistleblowers was waiting 2 years to 

get any explanation for the loss of his clearance. 

They are not allowed to confront their accusers when they have 

a hearing. They are not allowed to present witnesses themselves, 

or present their own evidence. While there may be exceptions, as 

a rule, security clearance hearings at internal review boards are 

frequently analogized to Kafka’s, The Trial. Only unlike that book, 

they are not a 19th Century nightmare novel. They are the 21st 

Century reality. 

Justice’s other arguments are similarly specious. On it being unconstitutional to give classified information to Congress for whistleblowing disclosures, that issue was decided in 1998 with the Intelligence Whistleblower Protection Act. This is just housecleaning to 

extend it to the merit system. Further, Federal employees every 

day have to make that decision to almost 3 million people who have 

clearances but are not in Congress. Why should Congress be the 

only group that does not have the right to make a judgment call 

about whether a cleared individual has a need to know? You folks 

deserve it more than the other outlets. 

On loopholes, the gentleman said that this bill would make any 

potential disagreement potential protected whistleblowing. This bill 

does not change the substance at all for what qualifies for whistleblowing except in the irrefragable proof area. It just means you 

cannot be disqualified because of cosmetics like formality or context. Thank you, Mr. Chairman. 

Senator FITZGERALD. Thank you, Mr. Devine. Mr. Kohn. 

TESTIMONY OF STEPHEN M. KOHN,1 CHAIRMAN, BOARD OF 

DIRECTORS, NATIONAL WHISTLEBLOWER CENTER 

Mr. KOHN. Thank you, Chairman Fitzgerald and Senator Levin, 

for holding this hearing. 

I come with a different perspective than other witnesses. I have 

litigated whistleblower cases for almost 20 years and I use all of 

the laws, not just the Whistleblower Protection Act. I have come to 

avoid the WPA at all costs. I have won cases in reinstatements for 

Federal employees by avoiding the WPA. I will give you an example why. 

I put together Table No. 1 which is in the testimony and on the 

overheads. These are laws, whistleblower laws that are apples to 

apples to the WPA. They are administrative laws. They are investigated by administrative agencies. They are litigated before an administrative judge. Their final decisions are rendered in Washington, DC by a centralized board, yet look at the differences. In 

every other law there is all-circuit review. Only the WPA does not 

happen. That single difference has fundamentally undermined 

whistleblower protection, because all-circuit review is in practice 

the peer review procedure utilized by judges on a daily basis for 

their own oversight and accountability. 

When a judge under the Pipeline Act or the Superfund Act or the 

Energy Reorganization Act writes a decision in the Fourth Circuit, 

they know when that issue comes up in the Second Circuit or the 

Third Circuit or the Tenth Circuit, other judges will look at it and 

19

perhaps criticize them. That is the fundamental way that the whole 

appellate system works. By segregating the WPA out and only having one circuit review, you have taken away the key oversight 

mechanism for the Federal appellate judiciary, and that alone has 

rendered the WPA totally inefficient and ineffective. 

If you look at the other issues that are also raised by this legislation you will also see the WPA standing out. Critical is the administrative agency right to file an appeal. I know now they want OSC 

to be able to come in and file an appeal. Under all these laws, the 

administrative agency with the authority over these laws goes into 

the Courts of Appeals regularly and argues for the whistleblower 

if they have determined the whistleblower had merit. That is an 

outcome determinative factor. 

When a government lawyer comes into a Court of Appeals and 

says, this whistleblower had merit, the judges listen a lot harder 

than as, in the testimony of the government, a pro se. They brag 

that the Federal Circuit has nice procedures for pro se appellants. 

Anyone who has clerked at a Court of Appeals knows, they may 

have nice procedures for pro se, but are they going to listen and 

what is the outcome issue? 

Also on the critical issue of report to supervisors, the Federal 

Circuit stands alone—every other court, and there were many decisions on this, and this was fought out in the circuits over a period 

of years. The Supreme Court denied cert. They did need to take 

cert because it all worked out. In every other law they protect those 

reports to supervisors. 

So let us now go to Table No. 5. That one issue alone, do you 

support the whistleblower who has the courtesy and the respect 

and the common sense to follow the chain of command is outcome 

determinative. I went through the last 20 reported decisions of the 

U.S. Court of Appeals under the laws set forth in Table 1 and I 

was actually shocked to find that in all 20 cases where the employee won it was an internal report. If those same whistleblowers 

who beat the higher standards, who showed the pretext, who 

showed the retaliation, who served the public interest had their 

cases heard in the Federal Circuit the outcome would have been 

zero. 

That is what the common sense practitioner sees every day. I 

spend hours figuring out how to keep my clients out of the Federal 

Circuit. 

I know my time is up. One last chart, Table No. 6, which just 

shows—I went through the last ten decisions issued by the Department of Labor in support of a whistleblower this year, 60 percent 

of those valid whistleblowers would have automatically lost their 

cases in the Federal Circuit. The critical piece of your legislation 

is the all-circuit review. I support all the other aspects of it, but 

without all-circuit review, Federal whistleblowers will never obtain 

legitimate protection. Thank you very much. 

Senator FITZGERALD. Thank you Mr. Kohn. Mr. Bransford. 

20

1The prepared statement of Mr. Bransford appears in the Appendix on page 160. 

TESTIMONY OF WILLIAM BRANSFORD,1 PARTNER, SHAW, 

BRANSFORD, VEILLEUX & ROTH, P.C., ON BEHALF OF THE 

SENIOR EXECUTIVES ASSOCIATION 

Mr. BRANSFORD. Thank you, Mr. Chairman. On behalf of the 

Senior Executives Association, we appreciate the invitation to testify this afternoon on our views related to S. 1358. SEA is grateful 

to the Members of the Committee for their interest in improving 

the law protecting whistleblowers as well as protecting the process 

by which it is determined whether a whistleblower has been subjected to prohibited reprisal. 

In general, SEA is supportive of this legislation, but in several 

instances we think the bill has gone too far. The first sections of 

the bill greatly expand the definition of what constitutes a protected disclosure and in our opinion these provisions seem designed 

to overturn precedent from the Federal Circuit. While SEA is generally supportive of these changes and believes the precedent from 

the Federal Circuit should be clarified, we do have concerns related 

to the current Whistleblower Protection Act and what we think will 

be an over-reaction to the changes in S. 1358 if the following concerns are not also addressed. 

SEA’s primary concerns are that these changes to S. 1358 do not 

protect the right of a manager to continue to manage an employee 

who has made a bad faith disclosure. As a result, managers potentially face a claim of whistleblower reprisal for making virtually 

any adverse personnel decision that touches upon the whistleblower no matter how justified the action may be. SEA believes 

that a provision in the act providing for some sort of penalty for 

filing bad faith whistleblower claims would serve to discourage 

those non-legitimate claims. 

In the alternative, the bill should be changed to deny protection 

for disclosures made by an employee solely to avoid accountability 

for the employee’s misconduct or poor performance. In other words, 

we are addressing that provision in the law that talks about making motive irrelevant to the case. 

Additionally, SEA is concerned that S. 1358 could be interpreted 

to expand the scope of protected disclosures to cover the policy decisions of a manager, particularly if a policy disagreement by the employee is voiced only to the manager but is couched in terms of legality. We believe it should not be the intent of S. 1358 to protect 

the disclosures of employees whose disagreement with the administration’s policy objectives being carried about by their supervisor is 

made only to the supervisor and then is followed by a recalcitrant 

attitude being demonstrated by the employee. We are suggesting 

changes that allow the MSPB to deny protection for disclosures 

that relate only to agency policy decisions which a reasonable employee should follow. 

SEA supports the new fourteenth prohibited personnel practice 

which prohibits referring a matter for investigation because of any 

activity protected under 5 U.S.C. § 2302. However, we are concerned that managers have adequate protection if they refer a matter for investigation for other legitimate reasons. To correct this we 

propose the language in Section 1(h) of the bill which allows a 

21

manager to avoid liability for reprisal by proving the personnel action at issue would have occurred anyway also be made applicable 

to the new prohibitions of retaliatory investigations. 

Section 1(e) of the bill establishes a new Section 7702a in Title 

5 setting forth a new process if a security clearance decision appears motivated by whistleblower reprisal. We think the bill may 

go too far by requiring this new procedure for agency review of security clearances for all violations of Section 2302. We propose that 

the new process be limited to whistleblower reprisals in violation 

of 5 U.S.C. § 2302(b)(8), specifically only whistleblower reprisals 

cases. 

SEA supports the provisions in Section 1(g) of S. 1358 concerning 

attorneys fees. The current law allowing such fees has been interpreted to require the fees for managers who successfully defend 

charges be paid by the Office of Special Counsel. Such a change in 

the law would allow the Office of Special Counsel to make prosecutorial decisions without concern for the impact of the decision on 

the office’s budget. 

SEA opposes granting an appeal directly to other Circuit Courts 

of Appeals other than the Federal Circuit. SEA has consistently 

supported a Federal employee’s right to appeal to the MSPB during 

recent debates concerning homeland security and DOD. And where 

we assert our position, one of the criticisms of the MSPB that we 

are given in response is that the MSPB appeal process is too complex. The level of complexity will only increase with the availability 

of multiple Circuit Courts of Appeals being put into the new law. 

Also it appears that the only reason to allow appeals to multiple 

circuits is a dissatisfaction with the Federal Circuit. If this is the 

case, Congress can always legislatively overrule the Federal Circuit, as it did in 1994 and as it appears ready to do in S. 1358. 

SEA contends this is preferable to the confusing complexity that 

will be caused by the varying decisions that will be issued by different Courts of Appeals. 

On behalf of SEA, we thank you for your willingness to introduce 

these amendments to the Whistleblower Protection Act. Thank you. 

Senator FITZGERALD. Thank you, Mr. Bransford. 

Mr. Devine and Mr. Kohn, you are certainly to be commended for 

your dedicated and forceful advocacy on behalf of whistleblowers, 

and you have worked hard at calling attention to this important aspect of the law. But I am wondering whether you have ever had 

the opportunity to defend Federal managers or supervisors, and 

whether in that way or some other way you have ever had the opportunity to see whistleblower adjudications through the eyes of a 

Federal manager accused of retaliation. 

Mr. KOHN. I have only represented whistleblowers, but mark my 

word, in representing whistleblowers you come to learn supervisor’s 

motives and what they go through extremely well, through the 

depositions, through the trials, through the settlement process. I 

have also represented many Federal managers, including Senior 

Executive Service employees, people with significant and largescale managerial responsibility who have themselves become whistleblowers and have talked to me about issues related to management of employees. 

22

So I understand that there is a management side, but what I 

want to state is that for an employee to actually win a whistleblower case, it is very difficult. Most lose. When you look at the 

statistics between the other circuits and the Federal Circuit and 

how the outcome is, it is clear that valid whistleblowers are continuously losing in and under the WPA. One valid whistleblower 

losing a case is something that is known to many managers and 

many other employees. 

Senator FITZGERALD. Mr. Devine. 

Mr. DEVINE. I represent Federal managers regularly because 

they blow the whistle as well, and one of the lessons we have 

learned is that the higher up in the chain of command that a whistleblower occupies, the more intensive the dissent is liable to be because their disclosure is more threatening. We are very sensitive 

to the pressures that they face. One of our organization’s first priorities is always to try to work with the manager who is on the 

other side of a reprisal case to see if we can change the dynamic 

from accusations and conflict to problem solving about the disclosure. To see if they can work together to make a difference, and 

then if we can mediate a settlement. Because if there is any lesson 

we have learned, there are not any winners in a win-lose scenario. 

But unless we have a credible, legitimate system of rights there 

will not be any disclosures either. 

Senator FITZGERALD. Senator Akaka. 

Senator AKAKA. Thank you, Mr. Chairman. My first question is 

to Mr. Bransford. Some say that clarifying the scope of protection 

for whistleblowers would fuel the perception that Federal managers 

cannot fire poor performers. However, I am curious of the training 

managers receive for handling poor performing employees. Can you 

comment on that as well as what additional training managers 

would need should S. 1358 be enacted as currently drafted? 

Mr. BRANSFORD. Senator, that is a problem that has been repeatedly pointed to within the Federal Government, that managers do 

not receive this training. This training is available. It is offered. 

However, not every manager receives it. There used to be a 40-hour 

or 80-hour training course for new managers that OPM required. 

But there are training opportunities available and I agree that 

managers should receive training on such things as how to handle 

poor performers, how to avoid retaliation claims, what the Whistleblower Protection Act means and what a manager’s obligations are 

under those laws. I know Senator Voinovich has proposed legislation specifically, I think it was in the last Congress, requiring such 

training, but that has not been enacted. But I do agree that would 

help. 

Senator AKAKA. Thank you. 

Ms. Kaplan, as the former Special Counsel for 5 years you are 

in a unique position to comment on how the provisions in S. 1358 

would impact the Office of Special Counsel. Although many agencies have independent litigating authority, would you please elaborate on the need for this authority as a result of any conflicts of 

interest with the Justice Department? 

Ms. KAPLAN. That is one of my favorite topics, or it used to be. 

I felt very strongly when I was Special Counsel that it was important for the office to have independent litigating authority because 

23

the office was created as an independent entity to promote the 

merit system and to protect whistleblowers. 

The Justice Department is the government’s lawyer, but frequently, in fact always, the Justice Department appears in court 

defending the agencies accused of retaliation. So they are really the 

management lawyer. My view always was that it would have 

helped the development of the law for the Federal Circuit to have 

been able to hear from the Office of Special Counsel when the cases 

were in the Court of Appeals where most of the law is developed. 

A lot of what is being complained about today’s Federal Circuit, 

narrowing of the law by the Federal Circuit, in my opinion, as Mr. 

Kohn pointed out, if you have a government entity in there that 

is arguing for a broader interpretation of the law, the court is likely 

to pay greater attention than it does when, for example, you have 

a pro se petitioner, which you frequently do in the Federal Circuit. 

So I think it is quite important, and I know that frequently the 

Justice Department takes the position that it is an odd situation 

because you might have one government agency in the court, and 

then the Justice Department in the court taking different positions. 

But actually that is very common in these Federal sector cases. 

You have a Federal Labor Relations Authority and a Merit Systems 

Protection Board that appears in court against the Justice Department. So I think it is a really important authority for the office to 

have and I would certainly urge the Committee to carefully consider it. 

Senator AKAKA. Thank you. My next question is for both Mr. 

Devine and Mr. Kohn. Mr. Bransford suggests that there should be 

some form of penalty for bad faith whistleblowers due to the impact 

on Federal managers. What is your opinion on this proposal? Mr. 

Devine. 

Mr. DEVINE. Senator, there is a penalty now for filing a frivolous 

lawsuit. You spend tens of thousands of dollars at a minimum, you 

have the cloud of this conflict hanging over your head for years, 

and then you end up with a formal legal ruling endorsing what you 

are complaining about. That is quite a penalty. And probably the 

most significant answer to Mr. Bransford’s suggestion is that his 

idea is premature, because right now almost all employees, or the 

overwhelming majority of employees who file their cases and if 

they are not resolved by settlement, end up suffering the penalty 

I described. 

If we had a problem where there was a surge of whistleblower 

rights cases that was flooding the board, or there was a rash of 

questionable decisions backing whistleblowers, then we would have 

a real problem. But we do not right now. The bottom line for this 

statute is more than enough deterrence for any bad faith lawsuits. 

Since Congress significantly strengthened this law in 1994 the 

track record for whistleblowers in decisions on the merits at the 

Federal Circuit is 1 in 84. Since the 1999 Lachance decision, the 

track record at the full board for whistleblower decisions is 2 in 27. 

Even the board’s written testimony about administrative judge decisions shows at that early level there is only 10 percent who prevail in decisions on the merits. That is between two and three 

times less than all the other whistleblower statutes that Mr. Kohn 

was describing to you. 

24

We just do not have a problem with people filing too many suits 

because they think that they have got too easy a chance to win. 

Our problem is they do not have a fighting chance at all. 

Senator AKAKA. Mr. Kohn. 

Mr. KOHN. Thank you, Senator. This issue again—and I like the 

word urban legend—is an urban legend. There is another body of 

law just to look at, which are the Department of Labor whistleblower decisions and cases that are very similar to the MSPB 

structurally. This issue has come up 100 times theoretically. When 

you go down and read those decisions what you find is there are 

very few cases—and I have read every one of them. I have written 

five books on it. I have sat and read every one of the cases. Just 

one or two or three that would come to the frivolous cases. 

So when it has gone up to the Secretary of Labor, be it a Republican or a Democrat, they have consistently said, you know what, 

there is no need to have any sanction and we will not even allow 

it. So even though they would have had the discretion to impose 

it, they decided by case law it was against the public policy and 

there is really no need. So it is just a theory. 

I do want to correct my testimony, Senator Fitzgerald, one way. 

Although I do not directly represent managers against employees, 

since I do represent managers, often they have problems with employees, and I do give counsel to them on how to deal with employees, but not in court. So I just wanted to clarify that answer. 

Thank you. 

Senator AKAKA. Thank you. My time is up. 

Senator FITZGERALD. Senator Levin. 

Senator LEVIN. Thank you, Mr. Chairman. Thank you all for 

your testimony. It is invaluable. 

On the question of independent litigating authority, Ms. Kaplan, 

I think you testified relative to the importance of that existing. I 

am wondering whether or not our other witnesses think that the 

Office of Special Counsel ought to have that authority to appeal to 

the circuit? 

Mr. DEVINE. Senator Levin, we believe this is a no-brainer. There 

simply is no rational basis to gag the institutional defender of the 

merit system from the final decisive stages of litigation that control 

the evolution of the merit system. It is an inherent structural imbalance in the input to the courts. We do not think this is a tough 

one. 

Senator LEVIN. Mr. Kohn. 

Mr. KOHN. I think it is not only not tough, it is critical. I have 

been on both sides. I have been in court where the government has 

been on my side at the Appeals Court. I see it much easier. I have 

been against the government and I see the skepticism. It is much 

harder. 

But if you look at some of the decisions like Chevron, the Supreme Court decisions where they discuss the type of deference a 

Court of Appeals by law must give a responsible administrative 

agency, then it becomes absolutely critical because when you go before the Court of Appeals who is speaking for the government and 

for the Whistleblower Protection Act? If it is the Department of 

Justice, they are going to give Chevron deference to interpretation 

to DOJ. They will naturally do that, even if they do not write it 

25

in their decision. If the Office of Special Counsel were permitted to 

go before the Court of Appeals they would then give Chevron deference to their interpretation. That is outcome determinative in 

many cases. That is the way the courts are used to dealing with 

reviews of administrative orders. Thank you. 

Mr. BRANSFORD. I have recently been party to cases where the 

MSPB and the Department of Justice were on opposite sides of the 

same issue in the Federal Circuit and it works just fine. I see no 

reason why the Special Counsel cannot also be given that type of 

authority. I personally have benefited by the fact that the Special 

Counsel did not have—or at least my clients benefited by the fact 

that the Special Counsel did not have that authority because OPM 

made decisions not go forward to the Federal Circuit. I agree with 

Ms. Kaplan completely that if the Federal Circuit could have the 

benefit of the Special Counsel’s input in decisions some of these 

cases would be different. I am in support of independent litigating 

authority. 

Senator LEVIN. Thank you. On this irrefragable proof standard, 

it was good to hear from the Department of Justice that they do 

not support it. I am wondering if each of you would comment on 

whether or not then it is relevant? Because MSPB says it does not 

follow that so-called dicta. I am not sure it is dicta, by the way, 

but it says it is not going to follow it. Does that mean that it does 

not have an impact, that opinion of the Court of Appeals in 

Lachance? Does it mean there is no impact to it because MSPB 

says it is not going to be followed by them? Let us start with you, 

Ms. Kaplan. 

Ms. KAPLAN. No, I do not think it means that at all. Obviously, 

when you have a decision from the Court of Appeals and there is 

only one Court of Appeals that hears these cases, even if you could 

call it dicta—and I used to like to call it dicta as well because I 

did not want to follow it—but you still have to pay attention to 

even that which is called dicta by a Court of Appeals. I think if the 

Justice Department agrees, and I think this is a new position for 

them, that it is inappropriate, then I think the legislation should 

clarify that so we will not have the problem in the future. 

Senator LEVIN. Mr. Devine. 

Mr. DEVINE. I think the primary significance of the MSPB’s recent views on this is that it should make the amendment non-controversial. As far as the Department of Justice dismissing it as 

dicta, they have not quite been able to keep their position straight. 

In their September letter to the Committee this year they said that 

the irrefragable proof standard had been helpful for them in winning cases. Now they are saying it is not relevant. I think they 

were right the first time around. Administrative judges have been 

influenced by this precedent. It has had a significant impact on the 

quality of settlements. And the decision is being quoted in other forums. It has been contagious at the State and local level. This is 

an indefensible doctrine which has to be eliminated. 

We are very appreciative of the board’s support for recognizing 

the obvious about this standard. Unfortunately, the Merit Board 

cannot overturn a Federal Circuit decision. Only Congress can do 

that. 

Senator LEVIN. Thank you. Mr. Kohn. 

26

Mr. KOHN. Senator Levin, I would want to second the questions 

and points made by Senator Akaka on this very issue. I personally 

have sat in settlement negotiations in Federal cases in which that 

case comes out and they say, you had better take what we are putting out. You will lose. Don’t you see this decision here? Not just 

by the opposition but by good-faith administrative judges of the 

MSPB saying, don’t you want to do what is best for your client? 

Look what is going to happen. As long as that case is out there, 

it is and will be used to the detriment of valid whistleblowers. 

Senator LEVIN. Thank you. Mr. Bransford. 

Mr. BRANSFORD. I never thought the decision meant that the degree of proof was overwhelming. In fact, I support the idea that 

that language is dicta. I viewed Lachance vs. White as being primarily a case about whether policy disagreements rise to the level 

of whistleblowing. 

Having said that, SEA would support legislation that clarifies 

that, and I think either the substantial evidence or preponderance 

of the evidence standard as suggested by Justice would be appropriate. Something to make it clear that the presumption could be 

overcome with some level of reasonable evidence. 

Senator LEVIN. My time is up. I just have one more question if 

there is another round, Mr. Chairman. 

Senator FITZGERALD. I have been told that we have a vote on 

now and there are 12 minutes and 30 seconds left. What I would 

like to do now is to thank this panel. I could give Senator Levin—

Senator Grassley has now arrived and he wishes to make a statement. 

Senator LEVIN. I would just ask my question for the record. 

Senator FITZGERALD. Sure, go ahead and ask your question for 

the record. 

Senator LEVIN. Just for the record, I will just ask a question 

about the Willis vs. Department of Agriculture case which, as I understand it, decided if a person blows the whistle on wrongdoing 

but did it within the agency chain of command then the whistleblowing does not constitute a protected disclosure under the law. 

We have addressed that a little bit here this afternoon. 

But my question is what your reaction is to that decision and the 

language in our bill that is set forth, whether or not that is the 

best way to address the problem raised by that decision, if you find 

or if you believe that there is a problem raised by the decision. If 

you could just give us that—not here, because we are out of time, 

but just for the record in a written response, I would appreciate it. 

Senator FITZGERALD. Thank you very much, Senator Levin. And 

thank you to all members of the panel. We appreciate your being 

here. Your testimony was great. Thank you very much. 

At this point I would like to call on our distinguished colleague, 

Senator Grassley. Senator Grassley has been busy with the Medicare hearings and he wanted to make sure he had a chance to come 

over here and make a statement. We appreciate his willingness to 

be here. I think we can allow Senator Grassley to proceed and then 

we can all make our vote. 

Senator Grassley is, of course, from Iowa. He is the chairman of 

the Senate Committee on Finance. Senator Grassley was elected in 

1980 and he has been a leader for many years in protecting the 

27

1The prepared statement of Senator Grassley appears in the Appendix on page 167. 

rights of whistleblowers. Senator Grassley was a co-author of the 

Whistleblower Protection Act of 1989 as well as the author of the 

whistleblower amendments to the False Claims Act in 1986. Senator Grassley has worked tirelessly through the legislative process 

to promote government accountability by ensuring that Federal employees have the opportunity to make whistleblower disclosers 

without retaliation. 

Senator Grassley, the Committee welcomes your statement at 

this time, and we thank you for being here. 

TESTIMONY OF HON. CHARLES GRASSLEY,1 A U.S. SENATOR 

FROM THE STATE OF IOWA 

Senator GRASSLEY. Thank you very much. Obviously, as you 

mentioned, those very important bills we have been involved with 

in the past that also included Senator Levin and Senator Akaka on 

those, and I am glad to be joining you on this very important piece 

of legislation at all. 

The two bills that you have referred to, already law, largely 

passed to overturn a series of hostile decisions by administrative 

agencies in the Federal Circuit Court of Appeals monopoly on the 

statute’s judicial review. I think we have come to the conclusion 

that enough is enough. The Whistleblower Protection Act has become a Trojan horse that may well be creating more reprisal victims than it protects. The impact for taxpayers could be to increase 

the number of silent observers who passively conceal fraud, waste 

and abuse. That is why the legislation that we are discussing today 

is so very vital to the American taxpayer. 

Our bill has five cornerstones: Providing protection for national 

security whistleblowers; closing loopholes in the scope of the whistleblower protection; restoring a realistic test for when reprisal protection is warranted; restoring the normal structure for judicial review; and codifying the anti-gag statute passed as an appropriation 

rider for the last 14 years. 

While all the provisions in this bill are critical to proper functioning of whistleblower rights, the provisions that protect national 

security whistleblowers is particularly so. The provisions prohibit 

a manager from suspending, revoking, or taking any other retaliatory action with respect to an employee’s security clearance in retaliation for whistleblowing. 

Since September 11, government agencies seemed to have placed 

a greater emphasis upon secrecy and restricted information for security reasons. There might be some reasons why that is understandable, but with these restrictions come a greater danger for 

stopping the legitimate disclosure of wrongdoing and mismanagement, especially in public safety and security. 

Although the entire bill is important, I am having to confine my 

comments today to national security. In their views’ letter dated 

November 10, 2003, the Department argued that these whistleblower protections constitute ‘‘an unconstitutional interference with 

the presidential constitutional responsibilities respecting national 

security and foreign affairs.’’ We have an Iowa expression that fits 

that and that would be hogwash. 

28

During the 105th Congress, the Select Committee on Intelligence 

thoroughly addressed the issue in our hearing entitled Disclosure 

of Classified Information to Congress. The Senate heard testimony 

from Dr. Louis Fisher, a Congressional Research Service senior 

specialist and also from a law professor, Peter Raven-Hansen of 

George Washington. These two highly respected scholars disagreed 

with the Department of Justice’s opinion when it was offered then. 

Professor Raven-Hansen explained that ‘‘the President and Congress have both historically and as a matter of constitutional text, 

shared authority over classified information from the very beginning.’’

The Department argued then as it does now, that the President’s 

power to regulate classified information is implied in his command 

authority as Commander-in-Chief. While this may be correct, the 

Justice Department fails to recognize that the Congress has equal, 

and some might argue, greater authority with regard to classified 

information. Nine times the Constitution explicitly gives the Congress responsibility for national security and foreign affairs. Additionally, according to Professor Raven-Hansen the Congress’ power 

over this subject is implicit in Congress’ residual authority to make 

all laws necessary and proper to carry out not only their vast national security powers but also the President’s. 

The Department of Justice relies heavily on the case of Department of Navy vs. Egan. Their reliance on this case is misguided. 

According to Professor Raven-Hansen, the Egan case ‘‘stands simply for the proposition that the President has inherent authority to 

regulate classified information and does not need a statute to do 

so. It does not mean that he could violate the statute if Congress 

passed one regulating such matters.’’

Consequently, Congress has the authority to prohibit the retaliatory taking of a security clearance. I do not want anyone to think 

that Congress is trying to force something down the administration’s throat. Last year my staff and the staffs of Senator Levin, 

Akaka, and Gramm sat down with the Department of Justice and 

White House to work out this provision. We even agreed to make 

a number of suggested changes. But unfortunately, at the end of 

the day we are not going to agree. 

Nonetheless, this provision is critical to the proper oversight of 

the Federal Government. In the 14 years since Congress unanimously passed the Whistleblower Protection Act it has been the 

taxpayers protection act as well. My office has been privileged to 

work with public servants who exposed indefensible waste and mismanagement at the Pentagon as well as indefensible abuses of 

power at the Department of Justice. Unfortunately, these courageous whistleblowers proceed at their own risk when defending the 

public. 

It has been confirmed repeatedly that whistleblowers must prove 

their commitment to stamina and persistence in order to make a 

difference against ingrained fraud, waste and abuse. There should 

be no question about Congress’ or this Senator’s commitment, as 

long as whistleblowers are defending the public, we must defend 

credible free speech rights for genuine whistleblowers. Congress 

cannot watch passively as a gaping hole expands in the shield proVerDate 0ct 09 2002 14:59 Apr 19, 2004 Jkt 091042 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 C:\DOCS\91042.TXT SAFFAIRS PsN: PHOGAN
29

tecting public servants. The taxpayers are on the other side of the 

shield with the whistleblower. 

Thank you very much. 

Senator FITZGERALD. Senator Grassley, thank you for that very 

powerful statement. Thank you for making it over here. I know you 

are very busy. I would like to thank my colleagues for being here. 

We will keep the record open until Tuesday, November 18 at 5 

p.m. This meeting is now adjourned. Thank you. 

[Whereupon, at 5:13, p.m., the Committee was adjourned.] 

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